State Intervenes in Federal Lawsuits That Challenge Willow Project and Opposes Effort To Stop Construction
State Intervenes in Federal Lawsuits That Challenge Willow Project and Opposes Effort To Stop Construction
ATTORNEY GENERAL
decision (“ROD”) on the Willow Master Development Plan (“MDP”) and related federal
and transportation to market of oil and gas from ConocoPhillips’ leases in the Bear Tooth
Unit, commonly known as the Willow Project, in the National Petroleum Reserve in
Alaska (“NPR-A”). The Willow MDP followed from years of robust environmental
studies and public comment opportunities. To defend its paramount interests in the
Willow MDP and development of the Willow Project, the State requests to intervene as a
defendant.
This case could deprive the State of billions in much needed revenues to support
subsistence lifestyles. The State’s intervention would aid the Court and the parties due to
the State’s unique role as a sovereign state, taxing authority, neighboring landowner,
regulator, and cooperating agency in the review of the project. Intervention is proper
because this motion is timely, the State has significant, protectable interests, no existing
party can effectively represent the State’s interests, and no party would be prejudiced by
intervention.
1) the motion must be timely; 2) the movant must claim a protectable interest relating to
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action may impair or impede the movant’s ability to protect its interest; 4) the movant
must not be represented adequately by the parties already involved in the action.
Wilderness Soc. v. U.S Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011)(citing Sierra
Club v. U. S. Envtl. Prot. Agency, 995 F.2d 1478, 1481 (9th Cir. 1993), abrogated on
other grounds).
The State has acted timely to participate in this litigation and seek intervention.
March 14, 2023, and the federal Defendants have not yet filed an answer. Plaintiffs filed
a motion for preliminary injunction on March 16, 2023. ECF No. 23. The State will
adhere to the Order on responses to that motion and make efforts to avoid duplication of
arguments in briefings. ECF No. 32. Other parties recently intervened. ECF Nos. 39, 37,
and 27.
The State was a cooperating agency in the decision challenged in this matter. The
State intervened in prior challenges to the project so there is no element of surprise in the
State’s participation now. Sovereign Iñupiat for a Living Arctic v. BLM, No.
3:20-cv-00290, ECF No. 96, Order granting motion to intervene. Under these
circumstances, intervention will neither prejudice any of the parties nor disrupt the
orderly and timely determination of the issues in this case. Therefore, the State’s motion
to intervene is timely.
The State’s interests are clear, weighty, and numerous. Courts are to accept as true
Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001). The State, as a movant,
need only demonstrate a “significantly protectable interest.” 630 F.3d at 1180. A movant
intervenor has a sufficient interest for intervention purposes “if it will suffer a practical
impairment of its interests as a result of the pending litigation.” Id. (quoting California ex
rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006)). Plaintiffs seek to halt
the development of the Willow Project in the NPR-A. The case poses a direct threat to
the State’s economic interests and participation as a sovereign in the federal system
(“The Production Act”), the federal government is required to pay to the State fifty
percent of the revenues received from the “sales, rentals, bonuses, and royalties on leases
issued . . .” in the NPR-A. 42 U.S.C. § 6506a. In turn, the State is required in the
allocation of the funds “to give priority to use by subdivisions of the State most directly
or severely impacted by development of oil and gas leased under [the Production] Act.”
Id. The State implements that allocation through annual appropriations from the National
used to award grants, commonly known as the NPR-A Impact Grant Program, to
from the fund to communities. Willow MDP, Final Supplemental Environmental Impact
Statement (“FSEIS”), Volume 1, 5.3.1 at 440 2. The State is estimated to receive from $2
to $4 billion for the fund from the Willow Project leases. Id.
standing and therefore the State meets the less searching standard for intervention. Org.
Village of Kake v. U.S. Dep’t of Agric, 795 F.3d 956, 963-64 (9th Cir. 2015); Watt v.
Energy Action Education Found., 454 U.S. 151, 161 (1981)(finding California’s direct
financial stake in federal lease revenues from oil and gas and status as a neighboring
The State as a sovereign has an interest in the terms under which it participates in
the federal system that support intervention in this case. See, Massachusetts v. U.S. EPA,
549 U.S. 497, 520 (2007). The State has an interest in the Willow MDP and Willow
Project due to the State’s interests in the federal system that are repeatedly acknowledged
in the Production Act. In addition to the mandate in the Production Act for payment to
the State, the Production Act requires the federal government to consult with the State
prior to any reduction or waiver of royalties or fees under the leases. 42 U.S.C. §
6506a(k). The Production Act recognizes the State’s role as a neighboring landowner
because the Production Act requires consultation with the State on management of units
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expeditious program of competitive leasing of oil and gas” in the NPR-A. 42 U.S.C. §
6506a(a). The State as a sovereign has interests in the Willow MDP and its
The State has committed substantial resources to review and comments on the
Willow MDP as a cooperating agency. Ex. 1, State’s comments on the draft FSEIS. 3 The
FSEIS noted the State’s authorities as a cooperating agency included the State’s
responsibilities for applications for permits, easements, and leases on state land and the
state’s regulatory responsibilities on air permits, water quality, spill prevention and
economic resources, off-road travel, water use, and ice road construction. Id.
The Willow Project will provide significant benefits to the State and the people of
the State of Alaska. Exs. 1 & 2. The State as a sovereign has interests in promoting the
health, safety, and welfare of its citizens. Moreover, the State has constitutional directive
to assist local governments. Alaska Const. Art. X, §14. The State implements that
directive in part through the NPR-A Impact Grant Program. The State as a taxing
authority receives revenues from oil and gas production, property taxes, corporate income
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development. AS 43.55 (oil and gas production taxes); AS 43.56 (oil, gas, and pipeline
property tax); AS 43.20 (corporate income tax); ROD at 12. The revenues from oil and
gas development under the Willow MDP would bring billions in state and local taxes.
ROD at 12. Plaintiffs’ challenges in this case could result in the loss of those tax revenues
for the State and municipalities. See, Wyoming v. Oklahoma, 502 U.S 437, 450
(1992)(granting standing to Wyoming due to an Oklahoma act that would impact coal
severance tax revenues in Wyoming). The potential loss of billions in state and local tax
revenues supports that the State has an interest in the case for intervention.
The State also has significant interests in this case as a landowner of neighboring
determined that the people of Alaska have an interest in the development of the State’s
oil and gas resources. Alaska Const. Art. VIII, §1; AS 38.05.910. Development of the
NPR-A assists the State in development of its resources because the Willow Project may
additional royalty and taxes for the State. The Willow Project will also benefit existing
transportation infrastructure of national importance because the oil from the Willow
Project will increase throughput in the Trans Alaska Pipeline System (TAPS). Ex. 1.
costs on the pipeline, and improves the economics for transportation of oil produced from
state leases. Ex. 1. This case could have a chilling effect on the exploration and
The third element for intervention as a matter of right is that the action’s
disposition, as a practical matter, may impair or impede the intervenor’s ability to protect
its asserted interests. 630 F.3d at 1177. The question of impairment is not separate from
the question of existence of an interest. See, e.g., Natural Res. Def. Council, Inc. v. U.S.
Nuclear Regulatory Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978). Plaintiffs’ claims in
this litigation seek to invalidate federal actions approving the Willow Project. The
disposition of this case could imperil billions in vital state and local revenues and the vast
array of public benefits that will follow from those revenues. The case may also impair or
impede the State’s interests as a neighboring landowner and regulator since many of the
activities to support the Willow Project will require permits and other State
authorizations. Thus, this case may impede essential State functions and the State’s
interest in the mitigation measures associated with the alternative selected in the ROD
challenged. Ex. 1. The State was a cooperating agency for several reasons. The
disposition of the case may impair or impede the State’s significant economic and
sovereign interests. The State clearly meets the third element for intervention on multiple
fronts.
The fourth element of the test for intervention as of right is to show that the
The burden under this prong is “minimal”; meaning a party seeking to intervene need
only show that representation of its interest “may be inadequate.” Trbovich v. United
Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). The Ninth Circuit considers
numerous factors to determine whether the applicant for intervention’s interests will be
present party is such that it will undoubtedly make all the intervenor’s arguments;
(2) whether the present party is capable and willing to make such arguments; and
(3) whether the would-be intervenor would offer any necessary elements to the
proceedings that other parties would neglect.” Nw. Forest Res. Council v. Glickman, 82
Although the applicant for intervention bears the burden of demonstrating that the
existing parties may not adequately represent its interest, it is sufficient for applicants to
show that, because of the difference in their interests, it is likely that the parties will not
advance the same arguments as would the proposed intervenor. Sw. Ctr. for Biological
Diversity, 268 F.3d at 823. The objectives and interests of the State are not identical to
those of any existing party to this action. While the federal Defendants, Intervenor-
Kuukpik Corporation have interests to defend the Willow MDP, parties’ specific interests
are not the same and no other party can advance the same arguments as the State.
making process, BLM’s arguments or litigation focus may not necessarily align with the
interests of the State as a representative of its own interests and those of its citizens. For
example, the State has a unique sovereign interest in encouraging the development of
natural resources within the State. Alaska Const., Art. VIII, §§ 1, 2. As oil and gas
revenues are a major revenue source for the State, the State’s economic interest in the
Willow Project is far greater relatively than economic interests of the federal Defendants.
More importantly, the State cannot rely on the federal Defendants to advance the same
arguments that the State would make. The differing policy values and relative economic
interests may mean that the federal Defendants may not advocate as zealously in defense
of the Willow MDP as the State would wish. Additionally, the State has been a party to
other cases where the federal government defendants have flipped positions mid-
Haaland, No. 20-35721, ECF No. 144 (purporting to unilaterally withdraw from a land
exchange previously defended during en banc review); Organized Village of Kake v. U.S.
ConocoPhillips seeks to defend its property and economic interests in the Willow
Project, but such interests are inherently distinct from those of the State. ConocoPhillips
is a private corporation serving the interests of its shareholders. See Earthworks v. U.S.
Dep’t of Interior, 2010 WL 3063143, *2 (D.D.C. 2010) (“Alaska’s interests in the natural
resources within state borders and the economic effects on the state of mining regulation
serves the broader interests of the residents of the State as a sovereign landowner in the
The North Slope Borough interests are largely from payments from the State from
the NPR-A Impact Grant Program, municipal property taxes, and its responsibility
regarding public health, safety, welfare of their residents and economic stability within
the borough. These interests are distinct from the State’s interest which serves and
balances the broader interests of the residents of the State as a whole instead of only one
specific area of Alaska. Additionally, the State manages the NPR-A Impact Grant
Program and the oil, gas, and pipeline property taxes under AS 43.56 are first assessed by
the State. The State has broader roles as a taxing authority, landowner, and regulator than
the Borough as a subdivision of the State can possess. The State’s intervention in this
case would bring its expertise and public interests as a sovereign state that no other party
could bring.
Similarly, ASRC and Kuukpik Corporation have interests differing from the State.
ASRC and Kuukpik Corporation represented interests largely derive from the Alaska
Native corporate structure established by the Alaska Native Claims Settlement Act and
shareholders. Thus, representation of the State’s interest by any other party to this
should the Court determine otherwise, the State should be permitted to intervene under
Fed. R. Civ. P. 24(b)(2). All that is necessary for permissive intervention is that
intervenor’s “claim or defense…shares with the main action a common question of law
or fact.” Fed. R. Civ. P. 24(b). Rule 24(b) plainly dispenses with any requirement that the
intervenor shall have a direct personal or pecuniary interest in the subject of the
litigation.” Sec. & Exch. Comm’n v. U.S. Realty & Improvement Co., 310 U.S. 434, 459
(1940).
above, holds claims and defenses in common with questions of law and fact raised by
Plaintiffs’ complaint. Rule 24(b) also requires the court to consider whether permissive
intervention would cause undue delay or would prejudice adjudication of the rights of the
original parties. As noted above, the State’s motion is timely and will not delay or
III. CONCLUSION
The State’s intervention will benefit the Court in considering the public interests at
stake. Given its timely motion and the magnitude of public interests of State in defense of
the Willow MPD, the State requests the Court grant it leave to intervene in this case as a
TREG TAYLOR
ATTORNEY GENERAL
This document contains 30584 words, excluding the items exempted by Local Civil Rule
7.4(a)(4). Counsel relies on the word count of the computer program used to prepare this
brief. This document complies with the word limit of Local Civil Rule 7.4(2).
TREG TAYLOR
ATTORNEY GENERAL
CERTIFICATE OF COMPLIANCE
I hereby certify that on the 23rd day of March 2023, I filed a true and correct copy of the
foregoing and accompanying documents with the Clerk of the Court for the United
District Court – District of Alaska by using the CM/ECF system. Participants in this Case
No. 3:23-cv-00058-SLG who are registered CM/ECF users will be served electronically
TREG TAYLOR
ATTORNEY GENERAL