Native Village of Point Hope v. Ken Salazar ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIVE VILLAGE OF POINT HOPE; 
ALASKA WILDERNESS LEAGUE;
CENTER FOR BIOLOGICAL DIVERSITY;
DEFENDERS OF WILDLIFE; NATURAL
RESOURCES DEFENSE COUNCIL;
NATIONAL AUDUBON SOCIETY, INC.;
NORTHERN ALASKA ENVIRONMENTAL
CENTER; OCEANA; PACIFIC
ENVIRONMENT; RESISTING
ENVIRONMENTAL DESTRUCTION ON
INDIGENOUS LANDS, REDOIL; SIERRA
CLUB; THE WILDERNESS SOCIETY,
INC.; GREENPEACE, INC.,  No. 11-72891
Petitioners,
v.
KENNETH LEE SALAZAR, Secretary
of the Interior; BUREAU OF OCEAN
ENERGY MANAGEMENT,
REGULATION AND ENFORCEMENT,
Respondents,
STATE OF ALASKA; SHELL OFFSHORE,
Respondents-Intervenors.

6227
6228 NATIVE VILLAGE v. SALAZAR
INUPIAT COMMUNITY OF THE ARCTIC 
SLOPE,
Petitioner,
v.
KENNETH LEE SALAZAR, Secretary

of the Interior; BUREAU OF OCEAN No. 11-72943
ENERGY MANAGEMENT, OPINION
REGULATION AND ENFORCEMENT,
Respondents,
STATE OF ALASKA; SHELL OFFSHORE
INC.,
Respondents-Intervenors.

On Petition for Review of a Final Agency Action
Bureau of Ocean Energy Management
Argued and Submitted
May 15, 2012—Pasadena, California
Filed May 25, 2012
Before: Alex Kozinski, Chief Judge, Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
NATIVE VILLAGE v. SALAZAR 6231
COUNSEL
Holly A. Harris (argued), Earthjustice, Juneau, Alaska; Chris-
topher Winter, Crag Law Center, Portland, Oregon, for peti-
tioners Native Village of Point Hope, et al. and Inupiat
Community of the Arctic Slope.
David C. Shilton (argued), U.S. Department of Justice, Wash-
ington, D.C., for respondent Ken Salazar, Secretary of the
Interior, and Bureau of Ocean Management.
Kathleen M. Sullivan (argued), Quinn Emanuel Urquhart &
Sullivan, LLP, New York, New York; Kyle W. Parker, Cro-
well & Moring LLP, Anchorage, Alaska, for respondent-
intervenor Shell Offshore Inc., et al.
Rebecca Kruse, State of Alaska Department of Law, Anchor-
age, Alaska, for respondent-intervenor the State of Alaska.
6232 NATIVE VILLAGE v. SALAZAR
OPINION
IKUTA, Circuit Judge:
In these expedited petitions for review, we consider the
allegations of Native Village of Point Hope et al. and Inupiat
Community of the Arctic Slope (collectively, “petitioners”)
that the Bureau of Ocean Energy Management (BOEM) failed
to discharge its obligations under the Outer Continental Shelf
Lands Act (OCSLA) in approving Shell Offshore Inc.’s plan
for exploratory oil drilling in the Beaufort Sea. We have juris-
diction pursuant to 43 U.S.C. § 1349(c), and we deny the peti-
tions.1
I
This case is the latest chapter in a long-running saga begin-
ning back in April 2002, when the Minerals Management Ser-
vice (MMS)2 established a five-year lease sale schedule for
1
In a separate memorandum disposition filed concurrently with this
opinion, we deny expedited petitions challenging BOEM’s decision to
approve an exploration plan for Shell Gulf of Mexico Inc. to drill for oil
in the Arctic Ocean’s Chukchi Sea. Because of the expedited nature of this
case, no motions to stay the mandate will be granted. Petitions for rehear-
ing and rehearing en banc may be filed with respect to this opinion.
2
In May 2010, the Secretary of the Interior separated and reassigned the
responsibilities of the former Minerals Management Service (MMS) to
three separate divisions: the Bureau of Ocean Energy Management
(BOEM), the Bureau of Safety and Environmental Enforcement (BSEE),
and the Office of Natural Resources Revenue. DOI Secretarial Order No.
3299, sec. 8 (May 19, 2010). While the formal reorganization was under-
way, the Bureau of Ocean Energy Management, Regulation and Enforce-
ment (BOEMRE), rather than MMS, functioned as the umbrella
organization for the now-separated divisions. DOI Secretarial Order No.
3302 (June 18, 2010) (changing the name of MMS to BOEMRE).
Although the Secretary’s reorganization plan was not fully implemented
until October 2011, see 76 Fed. Reg. 64,432 (Oct. 18, 2011), after the date
of approval of Shell’s exploration plan at issue here, we follow the parties’
lead by referring to the regulatory divisions within BOEMRE as BOEM
and BSEE throughout this opinion.
NATIVE VILLAGE v. SALAZAR 6233
the outer continental shelf of Alaska. Alaska Wilderness
League v. Kempthorne, 548 F.3d 815, 817-18 (9th Cir 2008),
vacated, 559 F.3d 916 (9th Cir. 2009), dismissed as moot sub
nom. Alaska Wilderness League v. Salazar, 571 F.3d 859 (9th
Cir. 2009). Indeed, this is the third time the government has
appeared before us to defend its approval of Shell’s explora-
tion plan against challenges by many of these same petition-
ers. We begin by describing the legal framework and factual
background for these challenges.
A
In enacting the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. §§ 1331-1356a, Congress authorized the
Secretary of the Interior to lease portions of the outer conti-
nental shelf to qualified bidders for the purpose of exploring
and developing its oil and gas reserves. Under OCSLA, the
Secretary begins by holding a lease sale to identify qualified
bidders. Id. §§ 1337, 1344(a). Becoming the successful bidder
in a lease-sale auction is merely the first step. Before under-
taking exploration activities in the leased area, the winning
bidder must obtain the Secretary’s approval of an exploration
plan, id. § 1340(c)(1), and obtain many other permits and
approvals.3 If, after completing such exploration activities, the
leaseholder concludes there is potential for developing oil and
gas reserves on the leased area, the leaseholder must obtain
approval of a development and production plan, id.
§ 1351(a)(1), as well as obtaining a new round of permits and
approvals before pursuing development of the leased area.
3
The required permits include inter alia an approval of an oil spill
response plan under the Clean Water Act, 33 U.S.C. § 1321, a National
Pollutant Discharge and Elimination System (NPDES) permit under the
Clean Water Act, id. § 1342, a dredge-and-fill permit under the Clean
Water Act, id. § 1344, an air quality permit under the Clean Air Act, 42
U.S.C. § 7661a, a permit to drill, 43 U.S.C. § 1340, 30 C.F.R. § 250.1617,
and a range of state approvals.
6234 NATIVE VILLAGE v. SALAZAR
Only the exploration plan stage and the leaseholder’s obli-
gations under OCSLA are at issue here. In general, the appli-
cable regulations require the leaseholder to submit specified
information about its proposed exploration plan. 30 C.F.R.
§ 550.211-228. Within thirty days of the leaseholder’s sub-
mission or last modification of the exploration plan, the Sec-
retary “shall approve” the plan if it is consistent with OCSLA,
its implementing regulations, and the applicable lease, 43
U.S.C. § 1340(c)(1), unless the Secretary determines that the
proposed activity “would probably cause serious harm or
damage to life . . ., to property, to any mineral . . ., to the
national security or defense, or to the marine, coastal, or
human environment,” id. § 1334(a)(2)(A)(i), and that “such
proposed activity cannot be modified to avoid such condi-
tion,” id. § 1340(c)(1); see also 30 C.F.R. § 550.233.
While OCSLA focuses on development of the outer conti-
nental shelf, the Clean Water Act § 311, as amended by the
Oil Pollution Act of 1990, focuses on the prevention of and
response to oil spills. See 33 U.S.C. § 1321. Among other
things, § 311 requires a leaseholder to submit an oil spill
response plan, which is “a plan for responding, to the maxi-
mum extent practicable, to a worst case discharge, and to a
substantial threat of such a discharge, of oil or a hazardous
substance.” Id. § 1321(j)(5)(A)(i). Offshore facilities “may
not handle, store, or transport oil unless” the leaseholder’s oil
spill response plan “has been approved by the President” and
the “facility is operating in compliance with the plan.” Id.
§ 1321(j)(5)(F)(i)-(ii).
At the time Shell began its leasing and exploration efforts,
MMS was in charge of conducting lease sales, reviewing
exploration plans under OCSLA, and approving oil spill
response plans under § 311 of the Clean Water Act. Follow-
ing the Deepwater Horizon oil spill in the Gulf of Mexico in
early 2010, the Secretary divided MMS’s responsibilities
among three new regulatory entities in order to separate the
“three distinct and conflicting missions” of (1) promoting
NATIVE VILLAGE v. SALAZAR 6235
resource development, (2) enforcing safety regulations, and
(3) maximizing revenues from offshore operations. Press
Release, U.S. Dep’t of the Interior, Salazar Divides MMS’s
Three Conflicting Missions (May 19, 2010), available
at http://www.doi.gov/news/pressreleases/Salazar-Divides-
MMSs-Three-Conflicting-Missions.cfm; see also 76 Fed.
Reg. 64,432; DOI Secretarial Order No. 3299. In the reorgani-
zation, the Secretary made BOEM responsible for managing
the development of offshore resources, including approving a
leaseholder’s exploration plan under OCSLA and conducting
an environmental analysis of that plan under the National
Environmental Policy Act (NEPA). See 76 Fed. Reg. at
64,432. The Secretary made the Bureau of Safety and Envi-
ronmental Enforcement (BSEE) responsible for enforcement
of safety and environmental functions, including the oil spill
response plan requirements in 30 C.F.R. pt. 254. See 76 Fed.
Reg. at 64,448.4 As the regulatory process now stands, BOEM
and BSEE are independent entities with separate responsibili-
ties.
B
Although a winning bidder in the Beaufort Sea lease sale
in 2003, Shell has yet to commence exploration activities. In
November 2006, Shell submitted an exploration plan for the
Beaufort Sea region. Alaska Wilderness League, 548 F.3d at
818. MMS approved Shell’s exploration plan in February
2007. Id. at 821. Some of the petitioners here, along with
other groups, challenged MMS’s approval, and a panel of this
court issued a stay pending review, thereby preventing explo-
ration in 2007 and 2008. See id. at 819-20. On November 20,
2008, the panel vacated and remanded MMS’s approval. See
id. at 835. After Shell filed a petition for rehearing en banc,
we issued an order vacating and withdrawing the panel opin-
ion. See Alaska Wilderness League, 559 F.3d at 916. Shortly
4
The Office of Natural Resource Revenue was made responsible for
revenue collection.
6236 NATIVE VILLAGE v. SALAZAR
thereafter, Shell withdrew its exploration plan, and in 2009
we granted Shell’s motion to dismiss the petitions as moot.
See Alaska Wilderness League, 571 F.3d at 859. In June 2009,
Shell submitted a new exploration plan that proposed drilling
at the Sivulliq and Torpedo prospects in the Beaufort Sea.
MMS approved that plan, and in May 2010 we denied expe-
dited petitions challenging that approval. See Native Vill. of
Point Hope v. Salazar, 378 F. App’x 747, 748 (9th Cir. 2010)
(mem.). Drilling did not commence, however, because soon
after the approval the federal government suspended all drill-
ing exploration activities in the Arctic in response to the
Deepwater Horizon oil spill. U.S. Dep’t of the Interior, Deci-
sion Memorandum Regarding the Suspension of Certain Off-
shore Permitting and Drilling Activities on the Outer
Continental Shelf, July 12, 2010, at 1, available at http://
www.doi.gov/deepwaterhorizon/upload/Salazar-Bromwich-
July-12-Final.pdf.
In May 2011, after the Secretary lifted the moratorium on
drilling, Shell submitted a revised exploration plan to BOEM
and a revised oil spill response plan to BSEE.5 In the revised
exploration plan, Shell proposed drilling two wells at its
Sivulliq prospect and two wells at its Torpedo prospect in the
Beaufort Sea during the July 10 to October 31 drilling season.
On August 3, 2011, after conducting a NEPA review of the
drilling activities contemplated in the revised exploration
plan, BOEM issued a Finding of No Significant Impact. The
agency concluded “that no substantial questions remain
5
Among other things, Shell’s revisions responded to two Notices to Les-
sees issued by the Secretary of the Interior in 2010 after the Deepwater
Horizon incident. One notice required leaseholders to include additional
information in the worst case discharge scenarios of their exploration
plans and development plans, see NTL No. 2010-N06 (June 18, 2010).
The other informed leaseholders that BSEE would evaluate “whether each
operator has submitted adequate information demonstrating that it has
access to and can deploy containment resources that would be adequate to
promptly respond to a blowout or other loss of well control,” see NTL No.
2010-N10 (Nov. 8, 2010).
NATIVE VILLAGE v. SALAZAR 6237
regarding potentially significant impacts and that no poten-
tially significant impacts are expected to occur as a result of
the proposed activities.” Petitioners do not challenge these
conclusions. On August 4, 2011, BOEM approved Shell’s
revised exploration plans subject to eleven conditions. Condi-
tions 8 and 9 require Shell to make certain technical demon-
strations concerning its oil spill response capabilities to BSEE
before beginning exploratory drilling operations. BSEE
approved Shell’s revised oil spill response plan on March 28,
2012.6
In these expedited petitions, petitioners challenge BOEM’s
approval of Shell’s revised exploration plan. Petitioners claim
that BOEM erred in approving the plan for three reasons.
First, they claim that Shell’s revised exploration plan did not
meet the informational standards set by OCSLA and the regu-
lations, because (1) it failed to reference an approved oil spill
response plan as required by 30 C.F.R. § 550.219(a) and (2)
did not contain an adequate description of Shell’s well-
capping stack and containment system as required by 30
C.F.R. § 550.213(d).7 Second, they claim that BOEM erred by
failing to reconcile conflicting evidence regarding the feasi-
bility of well-capping technology and the amount of time it
takes to drill a relief well in the event of a well blowout and
oil spill. Finally, they claim that BOEM erred by approving
the revised exploration plan subject to conditions.
6
We take judicial notice of this approval. See Interstate Nat’l Gas Co.
v. S. Cal. Gas Co., 209 F.2d 380, 385 (9th Cir. 1954). We also grant the
parties’ motions for judicial notice of briefs filed in Native Village of Point
Hope, 378 F. App’x at 747.
7
Shell’s proposed well-capping stack and containment system involves
“subsea devices used on the top of the well” that will either seal the well
or divert the flow from the well to a surface vessel with a containment sys-
tem equipped for separation and disposal of hydrocarbons.
6238 NATIVE VILLAGE v. SALAZAR
II
BOEM’s decision “to approve, require modification of, or
disapprove any exploration plan” is “subject to judicial review
only in a United States court of appeals for a circuit in which
an affected State is located.” 43 U.S.C. § 1349(c)(2). The
reviewing court “shall consider the matter under review solely
on the record made before the Secretary,” and BOEM’s find-
ings, “if supported by substantial evidence on the record con-
sidered as a whole, shall be conclusive.” Id. § 1349(c)(6). In
addition to the standard of review established by OCSLA,
BOEM’s approval of an exploration plan is a final agency
action subject to review under § 706 of the Administrative
Procedure Act (APA). Under this standard, we may set aside
BOEM’s approval only if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). Review under the arbitrary and capri-
cious standard is deferential. We will not vacate an agency’s
decision unless it has “relied on factors Congress did not
intend it to consider, entirely failed to consider an important
aspect of the problem, or offered an explanation [for that deci-
sion] that runs counter to the evidence before the agency or
is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.” Lands Council v.
McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal
quotation marks omitted) (quoting Earth Island Inst. v. U.S.
Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006), overruled
on other grounds as recognized by Am. Trucking Ass’ns v.
City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009)). We have
emphasized that deference to the agency’s decisions “is espe-
cially warranted when ‘reviewing the agency’s technical anal-
ysis and judgments, based on an evaluation of complex
scientific data within the agency’s technical expertise.’ ” Ctr.
for Biological Diversity v. Kempthorne, 588 F.3d 701, 707
(9th Cir. 2009) (quoting Envtl. Def. Ctr., Inc. v. EPA, 344
F.3d 832, 869 (9th Cir. 2003)).
While OCSLA gives appellate courts jurisdiction over chal-
lenges to BOEM’s approval of an exploration plan, BSEE’s
NATIVE VILLAGE v. SALAZAR 6239
decisions regarding oil spill prevention, response, and liability
are committed to a separate review process in the district
court. See 33 U.S.C. § 1321(n). We have interpreted
§ 1321(n) as a grant of exclusive original jurisdiction to the
district court to review an oil spill response plan. Edwardsen
v. U.S. Dep’t of the Interior, 268 F.3d 781, 790-91 (9th Cir.
2001) (“OCSLA regulations, the special review statute con-
tained in OPA, and the overall regulatory regime created by
OPA all make it clear that jurisdiction lies in the district court
for actions challenging approval of a spill response plan or
modifications to such a plan.”).
III
We begin by considering petitioners’ claim that BOEM
erred in approving Shell’s exploration plan because the plan
did not include all the information required under OCSLA
and the implementing regulations. Petitioners point to two
alleged errors: first that the exploration plan did not meet the
requirements for informing BOEM about its oil spill response
plan, and second that the exploration plan’s discussion of its
proposed well-capping stack and containment system was
incomplete. We discuss each issue in turn.
A
Petitioners first claim that BOEM’s approval of Shell’s
exploration plan was arbitrary and capricious because the plan
failed to comply with the regulatory requirement that an
exploration plan include a “[r]eference” to an approved
regional oil spill response plan, as well as “a comparison of
the appropriate worst case discharge scenario in [the appli-
cant’s] approved regional [oil spill response plan] with the
worst case discharge scenario that could result from [the
applicant’s] proposed exploration activities.” 30 C.F.R.
§ 550.219(a)(2), (iv).8
8
Section 550.219 provides:
The following information regarding potential spills of oil (see
6240 NATIVE VILLAGE v. SALAZAR
In response to this requirement, Shell’s exploration plan
stated, “Shell’s Beaufort Sea Regional Exploration [Spill
Plan] was unconditionally approved on 11 March 2010 and is
a fundamental component for the planned exploration drilling
program. The latest revision . . . has been submitted to
[BSEE] as a separate document.” The exploration plan then
compared the worst case scenario for its exploration activities
to the worst case scenario in the revised oil spill response plan
submitted to BSEE. While the exploration plan “reference[d]”
the approved 2010 spill plan, it did not make worst case dis-
definition under 30 CFR 254.6) and hazardous substances (see
definition under 40 CFR part 116) as applicable, must accompany
your EP:
(a) Oil spill response planning. The material required under para-
graph (a)(1) or (a)(2) of this section:
(1) An Oil Spill Response Plan (OSRP) for the facilities you will
use to conduct your exploration activities prepared according to
the requirements of 30 CFR part 254, subpart B; or
(2) Reference to your approved regional OSRP (see 30 CFR
254.3) to include:
(i) A discussion of your regional OSRP;
(ii) The location of your primary oil spill equipment base and
staging area;
(iii) The name(s) of your oil spill removal organization(s) for
both equipment and personnel;
(iv) The calculated volume of your worst case discharge sce-
nario (see 30 CFR 254.26(a)), and a comparison of the
appropriate worst case discharge scenario in your approved
regional OSRP with the worst case discharge scenario that
could result from your proposed exploration activities; and
(v) A description of the worst case discharge scenario that
could result from your proposed exploration activities (see
30 CFR 254.26(b), (c), (d), and (e)).
Shell did not attach a copy of a facility-specific oil spill response plan to
its exploration plan under 30 C.F.R. § 550.219(a)(1). It therefore must sat-
isfy the alternate requirements of § 550.219(a)(2).
NATIVE VILLAGE v. SALAZAR 6241
charge comparisons based on that spill plan as required by 30
C.F.R. § 550.219(a)(2)(iv). Rather, the exploration plan’s
worst case discharge comparisons were based on the esti-
mated discharge in the revised spill plan, which was still
undergoing review.
[1] Nevertheless, BSEE’s approval of the revised spill
response plan on March 28, 2012, renders petitioners’ chal-
lenge to this inconsistency in the exploration plan moot. “The
basic question in determining mootness is whether there is a
present controversy as to which effective relief can be grant-
ed.” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th
Cir. 1988). We have held that challenges to prior biological
opinions for river hydropower system operations became
moot upon issuance of superseding biological opinions
because we could no longer grant effective relief as to the
now non-operative biological opinions. See Am. Rivers v.
Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir.
1997); Idaho Dep’t of Fish & Game v. Nat’l Marine Fisheries
Serv., 56 F.3d 1071, 1074-75 (9th Cir. 1995). We are faced
with a similar situation: Shell’s revised spill plan was
approved in 2012, and therefore Shell’s exploration plan now
references and makes the required worst case discharge sce-
nario comparison to an approved spill plan. The informational
requirements of 30 C.F.R. § 550.219(a)(2) are satisfied, and
there is no relief we can now provide petitioners to redress
their concerns.
We also reject petitioners’ argument (which is, in any
event, waived because it was raised for the first time at oral
argument) that Shell amended its oil spill response plan after
submitting it to BSEE, and that therefore the spill plan
approved by BSEE included different oil spill trajectories,
equipment, fleet size, and techniques than did the spill plan
discussed in the exploration plan. Given that petitioners con-
ceded at oral argument that Shell’s amendments to the
approved 2012 spill plan did not change the worst case dis-
charge numbers discussed in the exploration plan, these dif-
6242 NATIVE VILLAGE v. SALAZAR
ferences are not relevant, and therefore this argument also
fails.
[2] In light of BSEE’s approval of Shell’s revised plan in
March 2012, we dismiss petitioners’ claim as moot.
B
[3] We next consider petitioners’ assertion that BOEM
erred in approving Shell’s exploration plan because the plan
included a well-capping stack and containment system as part
of its proposed response to oil spills, but did not provide all
the information required under the OCSLA regulations. Spe-
cifically, 30 C.F.R. § 550.213(d) requires an exploration plan
to include “[a] description and discussion of any new or
unusual technology (see definition under § 550.200) you will
use to carry out your proposed exploration activities.”9 The
regulations define “new or unusual technology” to include
equipment or procedures that “[h]ave not been used previ-
ously or extensively in a BOEM OCS Region,” “[h]ave not
been used previously under the anticipated operating condi-
tions,” or “[h]ave operating characteristics that are outside the
performance parameters established by this part.” 30 C.F.R.
§ 550.200. Neither OCSLA nor its implementing regulations
define the term “description and discussion” or explain the
level of specificity necessary to satisfy the regulation’s
9
Section 550.213(d) provides:
The following general information must accompany your EP: . . .
(d) New or unusual technology. A description and discussion of
any new or unusual technology (see definition under § 550.200)
you will use to carry out your proposed exploration activities. In
the public information copies of your EP, you may exclude any
proprietary information from this description. In that case,
include a brief discussion of the general subject matter of the
omitted information. If you will not use any new or unusual tech-
nology to carry out your proposed exploration activities, include
a statement so indicating.
NATIVE VILLAGE v. SALAZAR 6243
requirement to provide “general information,” see id.
§ 550.213(d), thus leaving it to BOEM to determine whether
the information provided is sufficient. See 43 U.S.C.
§ 1340(c)(1); Lands Council, 537 F.3d at 1000.
[4] We agree that the well-capping stack and containment
system described in Shell’s exploration plan meets the defini-
tion of new and unusual technology because the system has
never been used in BOEM’s Alaska region or in Arctic drill-
ing conditions. See 30 C.F.R. § 550.200. Nevertheless, we
reject petitioners’ argument that BOEM was arbitrary and
capricious in approving the plan, because BOEM could rea-
sonably conclude that the exploration plan provided an ade-
quate description and discussion of the technology. The
exploration plan’s seven-paragraph explanation of the well-
capping stack and containment system included a description
of the design (blowout preventer equipped with spacer spools
and rams for pumping kill weight fluid into the well, with all
equipment designed for conditions found in the Arctic), pro-
posed location (warm-stored aboard a designated vessel in
Alaska), and planned implementation of the technology.
Given the deference we owe BOEM’s interpretation of its
own regulations, we cannot say that BOEM acted arbitrarily
or capriciously in concluding that this description and discus-
sion satisfied the informational requirements of 30 C.F.R.
§ 550.213(d). See Auer v. Robbins, 519 U.S. 452, 461 (1997)
(an agency’s interpretation of its own regulations is “control-
ling unless ‘plainly erroneous or inconsistent with the regula-
tion’ ” (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 359 (1989))).10
10
To the extent petitioners are making the more substantive argument
that BOEM erred by failing to analyze the technical feasibility of the well-
capping stack and containment system, their argument fails. BOEM’s
review does not extend to such issues, which are considered by BSEE
when reviewing and approving Shell’s oil spill response plan, see 30
C.F.R. part 254, and application for permit to drill, id. § 250.417. See
Edwardsen, 268 F.3d at 790 (declining to review the substantive adequacy
6244 NATIVE VILLAGE v. SALAZAR
IV
We next turn to petitioners’ argument that BOEM erred in
approving the exploration plan because the agency did not
explain how it reconciled inconsistencies in Shell’s 2011 plan
regarding the feasibility of the proposed well-capping stack
and containment system and the time for drilling a relief well.
A
Petitioners first argue that BOEM erred in not explaining
how it reconciled Shell’s statements in its pre-2011 oil spill
response plans that “proven technology is not available” for
well capping and “well capping would not be an effective
option for regaining well control while operating from a
moored vessel,” with its statement in the 2011 exploration
plan that “subsea capping equipment and containment capa-
bilities . . . would be implemented if all other kick control
methods fail.” We disagree.
[5] First, there is no statutory or regulatory requirement
that BOEM include a statement identifying and reconciling
inconsistent positions taken by a permit applicant. Nor does
BOEM’s failure to do so make its approval of the exploration
plan arbitrary and capricious under the APA. While an agency
must present an adequate explanation for a decision that con-
tradicts the agency’s previous decision, see, e.g., Humane
of an oil spill response plan because jurisdiction for such review resides
in the district court in the first instance). For the same reason, we reject
petitioners’ contention that BOEM’s approval of the exploration plan con-
travenes 30 C.F.R. § 250.107(c), which requires use of the best available
and safest technology (BAST). BSEE, not BOEM, is tasked with ensuring
BAST compliance, and we lack jurisdiction to review BSEE’s technical
analyses. See 76 Fed. Reg. at 64,435 (stating that 30 C.F.R. § 250.107 “es-
tablishes the expectations for operators to protect health, safety, and the
environment, [and] these responsibilities fall under the authority of
BSEE”).
NATIVE VILLAGE v. SALAZAR 6245
Soc’y v. Locke, 626 F.3d 1040, 1058 (9th Cir. 2010), BOEM
did not adopt Shell’s past statements, and therefore the agency
is not taking an inconsistent position. Rather, it is Shell, not
BOEM, that reassessed the feasibility of a well-capping stack
and containment system in light of new information, namely
that “[w]ell capping techniques have improved, especially
since [their] frequent application during the Iraq-Kuwait con-
flict in the early 1990s, and the recent Macondo [Deepwater
Horizon oil spill] incident.” Because OCSLA requires indus-
tries to adopt the best available and safest technology, 30
C.F.R. § 250.107(c); H.R. Rep. No. 95-590, at 97 (1977),
reprinted in 1978 U.S.C.C.A.N. 1450, which would include
technological advances, Shell’s reassessment is consistent
with the regulatory scheme.
[6] More important, BOEM’s failure to expressly address
Shell’s changed position on well-capping technology does not
cast doubt on BOEM’s decision that the activities in the
exploration plan will not “probably cause serious harm or
damage to life (including fish and other aquatic life), to prop-
erty, . . . or to the marine, coastal, or human environment.”
See 43 U.S.C. §§ 1334(a)(2)(A)(i), 1340(c)(1); see also 30
C.F.R. §§ 550.202, 550.233. First, the well-capping stack and
containment system challenged by petitioners is not the sole
means identified in the exploration plan for responding to a
well blowout and oil spill. Rather, Shell has several response
tools at its disposal, including surface control options and
relief well capabilities. As BOEM reasonably concluded,
“Shell’s proposed subsurface collection system will be an
added tool for responding to a potential well control incident
where fluids flow and will increase response preparedness,
but is not necessary or required to comply with” the regula-
tions. Second, BOEM’s conclusion that well-capping technol-
ogy is now feasible in the Arctic is supported by substantial
evidence in the record. See 43 U.S.C. § 1349(c)(6). BOEM
found that “[s]ubsea containment technology has been suc-
cessfully used in the past,” including by Shell at the NaKika
and Mars sites and by British Petroleum during the Deepwater
6246 NATIVE VILLAGE v. SALAZAR
Horizon spill, and that “most major components for such a
system are available and have been field tested.” Whether
well-capping technology is now feasible in the Arctic is a
technical issue that lies squarely within the agency’s scientific
expertise and, therefore, is accorded great deference by a
reviewing court. See Ctr. for Biological Diversity, 588 F.3d at
707; see also Lands Council, 537 F.3d at 993 (“[Courts] are
not free to impose on the agency [their] own notion of which
procedures are best or most likely to further some vague,
undefined public good. Nor may [courts] impose procedural
requirements not explicitly enumerated in the pertinent stat-
utes.” (internal citations, alterations, and quotation marks
omitted)). Accordingly, we conclude that the inconsistency in
Shell’s prior statements does not invalidate BOEM’s approval
of Shell’s current exploration plan.
B
We apply similar reasoning to petitioners’ contention that
BOEM acted arbitrarily and capriciously when it approved the
exploration plan without reconciling evidence in the record
that runs contrary to Shell’s estimate of the time necessary to
drill a relief well. Petitioners argue that Shell’s estimate for
the time it will take to drill the planned production wells is far
longer than its estimate for the time it will take to drill an
emergency relief well, and they further argue that Shell
“failed to provide the agency any rational explanation for why
it expects to drill a relief well so much faster.”11
[7] We reject petitioners’ contention that BOEM acted
arbitrarily by failing to state on the record how it reconciled
these different estimates. As noted above, there is no require-
11
Specifically, Shell estimated that it would take 44 days to drill the
planned wells at its Torpedo prospect but only 25 days to drill an emer-
gency well at the Torpedo site, and that it would take 34 days to drill the
planned wells at its Sivulliq prospect, but only 20 days to drill a relief well
at the site.
NATIVE VILLAGE v. SALAZAR 6247
ment that BOEM do so. Moreover, BOEM’s decision to rely
on Shell’s time estimate for drilling relief wells was “sup-
ported by substantial evidence on the record considered as a
whole” and is therefore “conclusive.” 43 U.S.C. § 1349(c)(6).
The well control plan submitted as a part of Shell’s explora-
tion plan explained that it would take a shorter time to drill
relief wells than to drill exploratory wells because “[r]elief
well drilling is rapid,” relief wells “intercept a deep blowout
at some point above the total vertical depth,” which saves
time, and in an emergency situation “all available resources
are quickly accessed and funneled into drilling the relief well
and killing the blowout as quickly as possible.” BOEM’s con-
clusion that Shell provided a realistic estimate of the time it
would take to drill a relief well is a technical issue that lies
squarely within the agency’s scientific expertise and is there-
fore entitled to “great deference.” Ctr. for Biological Diver-
sity, 588 F.3d at 712.
V
[8] Finally, we consider petitioners’ argument that BOEM
acted arbitrarily by approving Shell’s exploration plan on the
condition that Shell provide additional information about the
“procedures for deployment, installation[,] and operation of
the system under anticipated environmental conditions.” This
argument likewise fails. As noted above, BOEM must
approve an exploration plan that is consistent with OCSLA
and its implementing regulations unless the proposed activity
will “probably cause serious harm or damage to life (includ-
ing fish and other aquatic life), to property, . . . or to the
marine, coastal, or human environment.” 43 U.S.C.
§§ 1334(a)(2)(A)(i), 1340(c)(1); see also 30 C.F.R. § 550.233.
BOEM takes the position that after approving a plan, it may
still “require [the applicant] to meet certain conditions,
including those to provide monitoring information.” 30 C.F.R.
§ 550.233(b)(1).12 According to BOEM, its approval here fol-
12
Section 550.233(b)(1) provides that within thirty days of the explora-
tion plan’s submission or last modification,
6248 NATIVE VILLAGE v. SALAZAR
lowed this path: BOEM concluded that Shell’s exploration
plan complied with applicable requirements and would not
cause serious harm or damage to the environment, but never-
theless required Shell to provide further documentation of its
well-capping stack and containment system, as well as to
meet certain additional conditions. This interpretation by
BOEM of its own regulations is controlling unless plainly
erroneous or inconsistent with the regulation. Auer, 519 U.S.
at 461. Further, the conditions at issue here, which require
Shell to seek additional authorizations before commencing
drilling, are consistent with the statutory scheme’s require-
ment that a leaseholder with an approved exploration plan
obtain a permit to drill and other approvals that “conform to
the activities described in detail in [the] approved [exploration
plan]” before conducting exploration activities. 30 C.F.R.
§ 550.281; see also 43 U.S.C. § 1340(d). For these reasons,
petitioners’ argument that BOEM impermissibly conditioned
its approval is without merit.
VI
[9] The Secretary’s recent division of MMS’s responsibili-
ties between BSEE and BOEM makes it clear that BOEM’s
duty here is limited. Within the thirty days provided by stat-
ute, BOEM had to determine whether Shell’s exploration plan
complied with OCSLA’s requirements and would not “proba-
bly cause serious harm or damage” to life, property or the
human, marine, or coastal environment. 43 U.S.C.
§§ 1334(a)(2)(A)(i), 1340(c)(1); see also 30 C.F.R.
the Regional Supervisor will take one of the following actions:
The regional supervisor will (1) approve your EP, [i]f [i]t com-
plies with all the applicable requirements, [a]nd then [t]he
Regional Supervisor will notify you in writing of the decision and
may require you to meet certain conditions, including those to
provide monitoring information.
(ellipses omitted).
NATIVE VILLAGE v. SALAZAR 6249
§§ 550.202, 550.233. Here, BOEM’s decision that Shell’s
exploration plan complied with OCSLA’s requirements is
entitled to deference and is supported by the record as a
whole. We deny the expedited petitions.13
DENIED.
13
Because we deny the expedited petitions, we do not reach petitioner’s
argument regarding whether a proper remedy for a deficiency is vacatur
or remand.