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State suing over ANWR, but is it trying to prove what's already been proven?

Richard Mauer
Erik Hill

JUNEAU -- Though the U.S. Interior Department has already suggested that a mammoth oil field lies beneath the Arctic National Wildlife Refuge's coastal plain, the Parnell administration is suing for the right to run its own $50 million oil-scouting program there.

The state's lawsuit, the latest in a lengthy series of legal challenges over federal issues, contests an Interior Department ruling that the state is 27 years too late to conduct three-dimensional seismic exploration of ANWR's 1.5-million-acre coastal plain.

Bill Barron, director of Alaska's oil and gas division, said that the new program could more accurately map likely drilling hotspots, allowing other parts of the plain to be set aside as wilderness with little controversy.

But the Interior Department says such exploration would be illegal and refused to grant Alaska a permit when it applied last year. Once the Interior Department concluded its own exploration of the plain in the 1980s, it said, any additional work could only be authorized by an act of Congress -- an unlikely prospect. Since 1980, when a decision was deferred on the plain's status in the Alaska National Interest Lands Conservation Act, Congress has been locked in stalemate between development and wilderness advocates.

The state, using hired private attorneys from Washington, D.C., filed suit March 14 in U.S. District Court in Anchorage in an effort to reverse the Interior Department ruling. According to a spokeswoman for the Alaska Department of Law, the law firm of Brownstein Hyatt Farber Schreck, based in Denver with a lobbying and legal practice in Washington, was paid $10,000 to prepare the lawsuit and has a $250,000 contract for litigation.

At a news conference last week, a Democratic legislator on the House Resources Committee, Scott Kawasaki, said he wasn't surprised by the lawsuit, though he added that he and most Alaska Democrats support opening the refuge to drilling.

"Litigation like this comes up during election years, it seems like," Kawasaki said.

Development of ANWR has long been a contentious issue, with Alaska officials generally on the side of exploring and producing oil there, and national environmental groups urging it get formal protection as an official wilderness.

Each side has had strong bipartisan support in Congress. The late U.S. Sen. Ted Stevens, the long-serving Alaska Republican who agreed to the 1980 compromise deferring a decision on the coastal plain, famously declared in 2005 that he had become "clinically depressed" over his inability to open the refuge to exploration -- no matter whether Congress was Republican or Democratic, or the White House occupied by a Republican or a Democrat.

In fact, at the time he made the statement, the Senate, House and Presidency were all controlled by Republicans. Stevens was unsuccessful in fending off fellow party members who declared themselves to be heirs to Republican Teddy Roosevelt's conservation ideals.

Nearly a decade later, in 2013, Parnell came up with a new tactic: the state would offer $50 million toward a government program to explore ANWR with the U.S. Geological Survey, leaving the oil industry out of the picture. Parnell said he would ask the Legislature to appropriate the money in 2014 -- roughly half the amount Democrats are seeking to restore education funding to 2011 levels.

In a May 18, 2013, letter to Sally Jewell, the incoming Interior Secretary, Parnell said he was offering the program because "accurately defining the oil and gas resource potential is a critical part of understanding the value of the (coastal plain) to the nation." Barron, the oil and gas division director, said the state was concerned because the Interior Department was evaluating the wilderness potential of the plain.

When Jewell said "no thanks" to Parnell's offer and added that she and the Obama administration opposed drilling the refuge, the state formally applied for an exploration permit. Parnell wrote Jewell that the law required her to consider his application and approve it within 120 days if it was in order. He added that the state was by then prepared to spend "at least" $50 million running the exploration program itself.

The U.S. Fish and Wildlife Service, which manages the refuge, wrote back to Dan Sullivan, then Alaska commissioner of natural resources and now a candidate for U.S. Senate, that the state had a faulty understanding of the law. The authority to explore the refuge had expired in 1987 and the state's proposal would not even be considered. On a rehearing requested by the state, the Fish and Wildlife Service told Sullivan that Alaska's argument "flies in the face" of the language of the law and was inconsistent with federal regulations.

The state, in its complaint filed in U.S. District Court, argued that the "erroneous" application of the law was actually by the Interior Department for not granting the exploration permit. The Interior Department is denying Alaska "and the nation" the geological information that could be obtained under the permit, the lawsuit charged.

The lead attorney for the state is David Bernhardt of Washington, D.C. Bernhardt had been the Interior Department's top attorney -- solicitor general -- in the administration of George W. Bush. The other attorney from Bernhardt's firm listed in the complaint is Lawrence Jensen, once deputy solicitor in the department.

In an interview, Bernhardt said that as solicitor, he spent a year crafting the rule that put the polar bear on the endangered species list in 2008 -- a matter of great controversy in Alaska.

"I didn't make the policy choice, I was the lawyer," he said.

The policy stuck. Alaska sued to get the listing removed, but lost in U.S. District Court in Washington in 2011 and in the U.S Court of Appeals in 2013.

The ANWR exploration case will be heard by Judge Sharon Gleason, an Obama appointee.

There is little doubt that oil lies somewhere under ANWR's coastal plain. Relying on a data gathered in the 1980s and reanalyzed a decade later, the USGS estimated it held between 6 billion and 16 billion barrels of commercially recoverable oil -- small by Prudhoe Bay standards, but impressive nevertheless. The USGS's 2013 map of undiscovered but technically recoverable oil placed ANWR at the top of all onshore oil basins in the United States.

Barron, the oil and gas division director, said the USGS estimate was derived using two-dimensional seismic mapping, an obsolete technology. The 3D technology proposed by the state would produce much clearer images of the subsurface geology and be better capable of distinguishing between gas, oil and water, he said.

Paul Decker, a petroleum geologist in the division, said 2D mapping slices the subsurface about every five miles. Three dimensional exploration can collect data about every 80 feet, an important consideration in a complex geological structure with bends, folds and faults like the coastal plain. He said the difference between the two techniques is like that of a medical X-ray and a CT scan.

Both types of geological mapping use sonic waves to produce images. In 3D, the waves can be generated by a truck-mounted device that presses against the earth's surface and creates a burst of sound waves in the range of a sub-woofer speaker. The state's program would operate during the winter for three to five seasons, Decker said.

The results could show what parts of the plain have no recoverable oil, Barron said. But until the survey can be conducted, he couldn't say how much land would be required for drilling pads, production facilities and pipelines to actually produce oil.

Even 3D, though, won't produce the results that can be obtained by exploratory wells. Only one has been drilled in ANWR -- on an enclave of private Native land. The KIC well, for Kaktovik Inupiat Corp., was completed by Chevron and BP in 1986 and its results remain a closely guarded secret. Barron said only one official in the Department of Natural Resources knows what's been found. It isn't him, he said, and he won't say who it is.

Reach Richard Mauer at rmauer@adn.com or (907) 500-7388.

 


By RICHARD MAUER
rmauer@adn.com
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