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<br />co
<br />
<br />PACE ENVIRONMENTAL LAW REVIEW
<br />
<br />[Vol. 11
<br />
<br />'- the effects of agency action on a species. Consultation
<br />must also be continued until a comprehensive biological opin-
<br />ion satisfying the mandate of section 7(b) is developed."124
<br />The most thorough explication of section 7(d) is in North
<br />Slope Borough v. Andrus,125 in which Alaskan native groups
<br />and environmental organizations sought to block the sale of
<br />federal oil leases in the Beaufort Sea to protect endangered
<br />gray and bowhead whales. The case was somewhat unusual
<br />in that the sales were controlled by the Outer Continentar'~,
<br />Shelf Lands Act which specifically permits the United States d~
<br />to withdraw previously sold oil leases in the event environ- t
<br />mental or other problems arise in the course of exploration'. ~<
<br />North Slope, however, concerned only the sale ofleases, not~~
<br />all of the activities surrounding oil exploration. The district };.
<br />court held that a letter from the National Marine and Fisher-:~.
<br />ies Service (NMFS) to a Bureau of Land Management official '.~~
<br />regarding the sales was not enough to constitute a biological
<br />opinion, and that section 7 consultation had thus never been \:.
<br />completed and section 7(d) therefore applied. The court'-:~
<br />noted, however, that inadequate information cannot provide;:,
<br />the basis for a halt to al! agency action, and ~roposed a three>~
<br />part test for agency actIOns where consultatIon was based ont-
<br />incomplete information.126 Although the government could}'
<br />not assure compliance with section 7(a)(2) until it completed:~
<br />an adequate biological opinion, it could pursue oil lease sales!,:';
<br />if "(1) there is a reasonable likelihood of ultimate compliance'\
<br />[with section 7(a)(2)], (2) there is 110' section 7(d) violation, . ',:
<br />and (3) the intermediate steps taken pursuant to the agency -
<br />action comply with 7{a)(2)."127 Explaining the first prong of
<br />its test, the court noted that: "A negative biological opinion,
<br />regardless of the stage of development, would constitute sub-
<br />stantial evidence of non-compliance [with section 7(a)(2)]. "128
<br />
<br />124. North Slope, 486 F. Supp. at 352 (emphasis added); accord H.R. CONF.
<br />REP. No. 96-697, 96th Cong., 1st Sess. 159, reprinted in 1979 U.S.C.C.A.N.
<br />2557, 2576.
<br />125. 486 F. Supp. at 354.
<br />126. North Slope, 486 F. Supp. at 357.
<br />127. Id. at 358.
<br />128. Id.
<br />
<br />1993]
<br />
<br />North Slop,
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<br />opinion. 134
<br />
<br />129. Id. at
<br />130. Id. at
<br />131. Id. at
<br />132. 486 F
<br />133. 642 F
<br />134. Id. at
<br />
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