WILLIAM H. STEELE, Chief Judge.
This matter comes before the Court on the Federal Defendants' Motion to Dismiss (doc. 66), the Association Intervenors' Motion to Dismiss (doc. 63) and Intervenor
Plaintiff, Defenders of Wildlife ("DOW"), brought this action against a collection of federal defendants, including the Bureau of Ocean Energy Management, Regulation, and Enforcement ("BOEMRE");
The operative Third Amended Complaint (doc. 61) summarizes the Federal Defendants' alleged violations by asserting that BOEMRE continued accepting bids on more than 200 new deepwater leases in Lease Sale 213 after the April 2010 oil spill, without preparing a Supplemental Environmental Impact Statement, reinitiating consultation under the ESA, or insuring that its actions will not jeopardize the survival of endangered and threatened species. (Doc. 61, at 2.) In a nutshell, DOW contends that, by continuing to accept lease bids, the Federal Defendants have failed adequately to consider the new information gleaned from the Deepwater Horizon oil spill in administering the oil and gas leasing program in the Gulf of Mexico, and that the Federal Defendants' deficiencies in that regard violate NEPA, the ESA, and the APA.
Pursuant to this overarching theory, DOW advances four causes of action against the Federal Defendants. Claim One asserts that BOEMRE violated NEPA and the APA by continuing to rely on the conclusions of an April 2007 environmental impact statement (the "Multi-sale
On the strength of these four claims, DOW seeks a declaration that the Federal Defendants are in violation of the specified statutes in the specified ways, vacatur of BOEMRE's acceptance of bids for new leases in Lease Sale 213 post-Deepwater Horizon spill, vacatur and remand of the Multi-sale EIS and injunction of "all future lease sales authorized therein" until a supplemental EIS is prepared, and an order commanding the Federal Defendants "to reinitiate consultation to account for the new information presented by the Deepwater Horizon incident." (Id. at 22.)
This action is not confined to DOW and the Federal Defendants. On August 9, 2010, the undersigned entered an Order (doc. 31) granting leave to intervene to the American Petroleum Institute, the Independent Petroleum Association of America, the U.S. Oil & Gas Association, and the International Association of Drilling Contractors (collectively, the "Association Intervenors"). On December 9, 2010, 2010 WL 5139101, the undersigned entered a similar Order (doc. 67) granting leave to intervene to Chevron U.S.A., Inc. ("Chevron").
Now pending are three sets of overlapping Rule 12(b) Motions and accompanying memoranda filed by the Federal Defendants, the Association Intervenors and Chevron. In the interests of efficiency and clarity, the Court will address the Federal Defendants' Motion first, then turn to non-redundant aspects of the intervenors' Motions.
All three Motions to Dismiss proceed in whole or in part under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
On a Rule 12(b)(6) motion to dismiss for failure to state a claim, "the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged . . . in the complaint as
To withstand Rule 12(b)(6) scrutiny, plaintiffs must plead "enough facts to state a claim to relief that is plausible on its face," so as to "nudge[] their claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation omitted). Thus, minimum pleading standards "require[] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. As the Eleventh Circuit has explained, Twombly/Iqbal principles simply require that a plaintiff plead "enough facts to state a claim to relief that is plausible on its face," whose allegations are "enough to raise a right to relief above the speculative level." Speaker, 623 F.3d at 1380 (citations omitted). The factual content of the complaint must "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citations omitted).
On a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction where the movant mounts a facial attack on the Complaint, the Court must "look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Stalley ex rel. United States v. Orlando Regional Healthcare System, Inc., 524 F.3d 1229, 1232-33 (11th Cir.2008) (citations and internal quotation marks omitted); see also Sinaltrainal, 578 F.3d at 1260 (in facial attack under Rule 12(b)(1), the Court "examines whether the complaint has sufficiently alleged subject matter jurisdiction" and "construes the complaint in the light most favorable to the plaintiff and accepts all well-pled facts alleged . . . in the complaint as true").
The Federal Defendants seek dismissal of Claims One and Three, and a portion of
As noted, DOW's first claim is that BOEMRE has improperly failed to "prepare a supplemental Multisale EIS and EAs for ongoing and future lease sales" to take into account new information resulting from the Deepwater Horizon spill. This claim challenges not only the continuing validity of the Multi-sale EIS, but also that of "the EAs for Lease Sale 206 and 213, both of which tiered off the Multisale EIS." (Doc. 61, ¶ 59.)
The Federal Defendants' mootness argument is straightforward. Their position is that DOW need not sue them in Claim One for failure to supplement the Multi-sale EIS by taking into account new information gleaned from the Deepwater Horizon accident because the Federal Defendants are in fact preparing such a supplement.
The Federal Defendants urge the Court to dismiss Claim One as moot insofar as DOW seeks to force BOEMRE to supplement the Multi-sale EIS and associated EAs because BOEMRE is voluntarily doing just that.
Insofar as DOW says Claim One is not moot because BOEMRE is approving "drilling plans" under the faulty EIS today, that argument fails because no "drilling plans" claims are presented in the Third Amended Complaint.
DOW also suggests that Claim One is not moot because BOEMRE is "continuing to tier its approval of . . . lease sales to an admittedly inadequate EIS" (doc. 72, at 7). Plaintiff's premise is that, even as it moving forward with preparation of a supplemental Multi-sale EIS, BOEMRE is continuing to approve lease sales under the old, invalid EIS. In response, the Federal Defendants make a strong showing (which DOW does not counter or rebut) that, other than Lease Sale 213, BOEMRE has not conducted and will not conduct any post-Deepwater Horizon lease sales under the Multi-sale EIS until the supplemental EIS is completed.
Because Claim One has a Lease Sale 213 component that the Federal Defendants' Motion to Dismiss does not address, the Court finds that movants have not shown that this portion of Claim One is moot or otherwise due to be dismissed.
As for those portions of Claim One mooted by the Federal Defendants' demonstrated commitment to supplementing the Multi-sale EIS, DOW asserts that they should not be dismissed because "there is reason to think that those actions fall under the voluntary cessation exception to mootness." (Doc. 72, at 8.) It is well established that "the voluntary cessation of challenged conduct will only moot a claim when there is no reasonable expectation that the accused litigant will resume the conduct after the lawsuit is dismissed." National Ass'n of Boards of Pharmacy, 633 F.3d at 1309 (citations omitted). An important feature of this voluntary cessation doctrine is that government actors "receive the benefit of a rebuttable presumption that the offending behavior will not recur." Sheely, 505 F.3d at 1183; see also Bankshot Billiards, 634 F.3d at 1352 (noting that Eleventh Circuit has consistently deemed moot "a challenge to government policy that has been unambiguously terminated . . . in the absence of some reasonable basis to believe that the policy will [be] reinstated if the suit is terminated") (citation omitted); Beta Upsilon Chi Upsilon Chapter at the University of Florida v. Machen, 586 F.3d 908, 917 (11th Cir.2009) ("In cases where government policies have been challenged, the Supreme Court has held almost uniformly that voluntary cessation of the challenged behavior moots the claim.") (citations omitted).
According to DOW, the voluntary cessation exception may apply because the cited Federal Register notice "appears to say nothing about when the future lease sales would take place or even whether they would commence only after the SEIS is completed." (Doc. 72, at 8.)
Claim One specifically mentions future lease sales, and DOW's Third Amended Complaint seeks injunction of "future lease sales" pending preparation of a supplemental Multi-sale EIS. (Doc. 61, ¶¶ 3, 60.) The Federal Defendants extrapolate from these isolated references to future lease sales that DOW is asking the Court to find that "future lease sales would violate NEPA unless the agency completes a SEIS." (Doc. 66-1, at 14.) Because it is unknown and unknowable at this point what the supplemental EIS will say, or if or when BOEMRE will conduct future lease sales relative to completion of that supplemental EIS, the Federal Defendants assert, this aspect of Claim One is rooted in hypotheticals and speculation and is therefore not ripe. See, e.g., Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1174 (11th Cir.2006) ("The ripeness inquiry is designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.") (citation and internal quotation marks omitted); Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227 (11th Cir.2006) (ripeness doctrine "protects federal courts from engaging in speculation or wasting their resources through the review of potential or abstract disputes") (citation omitted). In the NEPA context, the Eleventh Circuit has explained that "the issue is ripe at the time the agency fails to comply" with NEPA. Ouachita, 463 F.3d at 1174. Movants' point is simple: BOEMRE cannot have failed to comply with NEPA as to future lease sales that it has not yet approved or authorized.
In response, DOW insists that the Federal Defendants misunderstand the nature of the relief sought in Claim One. Plaintiff states that "it is not challenging the adequacy of the SEIS that BOEM plans to create nor the fact that the future lease sales in the Multisale Plan may tier from some new SEIS." (Doc. 72, at 13.)
From review of the briefs on this issue, it is evident that the parties are talking past each other, interpreting the reference to "future lease sales" in Claim One in drastically differing ways. The Federal Defendants assume that Claim One is challenging the validity of future lease sales that have not yet been announced and that will be tiered to a supplemental EIS that has not yet been prepared. But DOW states that Claim One is intended to redress only "existing instances" of BOEMRE action in reliance on the now-invalid Multi-sale EIS. As discussed above, those "existing instances" that are properly being litigated in this case appear confined to Lease Sale 213, and specifically the agency's approval of bids for Lease Sale 213 following the Deepwater Horizon explosion using the old Multi-sale EIS without awaiting supplementation that BOEMRE itself agreed was needed. There is no ripeness problem with that claim. Therefore, based on plaintiff's representation that Claim One proceeds no further than "existing instances" of BOEMRE action in reliance on the old
Claim Three of the Third Amended Complaint alleges that the Federal Defendants' "failure to reinitiate consultation with NMFS and FWS violates" the Endangered Species Act and the Administrative Procedure Act. (Doc. 61, ¶ 70.) This claim centers on the requirement of § 7(a)(2) of the ESA that federal agencies engage in such consultation in carrying out their substantive obligation to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat." 16 U.S.C. § 1536(a)(2).
The Federal Defendants maintain that Claim Three should be dismissed in its entirety because it proceeds from a false premise, namely, that BOEMRE has not reinitiated such consultation. To demonstrate the inaccuracy of DOW's position, the Federal Defendants proffer a pair of letters dated July 30, 2010, from
Based on these uncontested facts, the Federal Defendants argue that Claim Three is moot because they have already done exactly what DOW is asking of them (namely, reinitiation of § 7 consultation with the NMFS and FWS). Courts in analogous circumstances have deemed ESA claims moot and have declined to order federal agencies to reinitiate consultation when those agencies have already done so.
DOW protests that deeming Claim Three moot "based on this barest of effort put forth by a federal agency would make a mockery of the ESA's command that each federal agency ensure that its activities are not likely to jeopardize the continued existence of threatened and endangered species." (Doc. 72, at 9.) Plaintiff maintains that Claim Three is not moot because this Court could still "grant declaratory relief deeming Federal Defendants to be in violation of the ESA with respect to the Multisale Plan" and because the Federal Defendants "have not evidenced any intent to correct the ongoing ESA violations during reinitiation of consultation." (Id. at 10, 12.) But these arguments improperly expand the scope of Claim Three, and conflate it with Claim Four. As pleaded in the Third Amended Complaint, Claim Three does not ask the Court to declare ongoing violations of BOEMRE's duty not to jeopardize the continued existence of threatened or endangered species. It does not allege that BOEMRE's present conduct violates the substantive "no jeopardy" obligation under the ESA, as compared to the procedural "reinitiation of consultation" duty under the ESA. Instead, Count Three goes no further than to allege that BOEMRE's
The Federal Defendants also move for dismissal of Claim Four, in part. In that claim, DOW alleges that in relying on "faulty opinions in proceeding with lease sales in the Gulf after the Deepwater Horizon incident," BOEMRE has "failed to insure that there will be no jeopardy to endangered or threatened species resulting from actions it implements," in violation of the ESA and APA. (Doc. 61, ¶¶ 73-74.) Claim Four flows from the ESA's directive in § 7(a)(2) that federal agencies must insure that their actions are not "likely to jeopardize the continued existence of any endangered or threatened species." 16 U.S.C. § 1536(a)(2).
The Federal Defendants emphasize that their Motion to Dismiss is narrowly circumscribed with respect to Claim Four. Indeed, they state that they "have only moved to dismiss that part of DOW's Fourth Claim . . . to the extent that it purports to challenge future lease sales (on the grounds that such challenges are not ripe)." (Doc. 77, at 12.) Movants further clarify that they "have not moved to dismiss [the] Fourth Claim for Relief (except to the extent that it also challenges future lease sales)." (Id. at 13.) As to any "future lease sales" prong of Claim Four, the Federal Defendants' position is that such a claim is not ripe because no such "future lease sales" have been approved, there is no way of knowing what environmental review (including consultation with FWS or NMFS) will be completed before such approval takes place, and it is speculative as to the form and restrictions that may accompany any such future lease sales. (Doc. 66-1, at 19-20.)
Federal Defendants' Rule 12(b) Motion construes Claim Four as being geared toward future lease sales. But careful scrutiny of the Third Amended Complaint reveals no allegations in Claim Four that future lease sales approved by BOEMRE may violate the ESA's requirement
In sum, the Federal Defendants' objection to Claim Four for purposes of its Motion to Dismiss centers on allegations that future lease sales that BOEMRE may someday approve will violate its § 7(a) duty to insure that its actions are not likely to jeopardize endangered or threatened species. But a plain reading of the Third Amended Complaint demonstrates— and plaintiff confirms—that Claim Four is directed only at past or present actions by BOEMRE, not at future lease sales that have not yet happened. Because this aspect of the Federal Defendants' Motion to Dismiss takes aim at a claim that plaintiff is not pursuing, the Motion is
After consideration of the Federal Defendants' Motion to Dismiss, the following aspects of Dow's Third Amended Complaint remain active and pending: the portion of Count One concerning Lease Sale 213, all of Count Two, and all of Count Four. The Court now examines the two Motions to Dismiss filed by intervenors (the Association Intervenors and Chevron, respectively) to the extent that those Motions seek dismissal of claims which survived scrutiny under the Federal Defendants' Rule 12(b) Motion.
The Association Intervenors' Rule 12(b) Motion identifies a trio of arguments not explored in the Federal Defendants' corresponding motion, to-wit: (i) movants' contention that venue is improper, (ii) movants' assertion that Counts One and Two should be dismissed because there were no major federal actions remaining to occur with respect to Lease Sale 213 at the time of the Deepwater Horizon explosion; and (iii) movants' position that Count Four should be dismissed because DOW complied with the ESA as to Lease Sale 213, as a matter of law. Each of these arguments will be addressed in turn.
The Third Amended Complaint predicates venue in this judicial district on 28 U.S.C. § 1391(e)(2), which provides that a civil action against an agency of the United States may "be brought in any judicial district in which . . . a substantial part of the events or omissions giving rise to the claim occurred." Id. The Association Intervenors maintain, however, that "none of the events . . . directly giving rise to DOW's claims took place in this district." (Doc. 63-1, at 7.) Movants view this case as arising from the Federal Defendants' administrative decisions concerning lease sales after the Deepwater Horizon disaster, rather than arising from the oil spill itself. According to the Association Intervenors, all such administrative decisions took place in Washington D.C. and/or at BOEMRE offices in states other than Alabama. On that basis, the Association Intervenors move for dismissal of the Third Amended Complaint for improper venue, pursuant to Rule 12(b)(3), Fed.R.Civ.P.
As a threshold matter, DOW challenges the Association Intervenors' right to raise a venue objection. Plaintiff's reasoning is that, inasmuch as the Federal Defendants have not objected to venue, intervenors are not entitled to assert that privilege on their behalf, and have waived that objection by voluntarily interjecting themselves into this litigation in this forum. There is considerable persuasive support for this proposition. Indeed, decisional authority and commentators alike have recognized that "[v]enue is a privilege personal to a defendant in a civil suit and a person intervening on either side of the controversy may not object to improper venue." Trans World Airlines, Inc. v. C.A.B., 339 F.2d 56, 63-64 (2nd Cir.1964); see also Intrepid Potash-New Mexico, LLC v. U.S. Dep't of Interior, 669 F.Supp.2d 88, 91 (D.D.C.2009) ("Courts have noted that an intervenor-defendant cannot assert that venue is improper . . . because such a defendant voluntarily participated in the case and assumed the risk that a court could order relief or enter a judgment against it."); Beam Laser Systems, Inc. v. Cox Communications, Inc., 117 F.Supp.2d 515, 517 (E.D.Va.2000) (determining that "as an intervenor, Sea-Change may not question venue"); Asbury Glen/Summit Ltd. Partnership v. Southeast Mortg. Co., 776 F.Supp. 1093, 1096 (W.D.N.C.1991) ("As a general matter, it is true that the intervenor cannot question venue.") (citation and internal punctuation omitted); Commonwealth Edison Co. v. Train, 71 F.R.D. 391, 394 (N.D.Ill.1976) ("When a party seeks to enter pending litigation as an intervenor, he enters the litigation subject to venue which already exists. The purpose of venue is to alleviate the hardship on a defendant arising from his being forced to defend a suit in an inconvenient forum. Such a consideration does not apply to an intervenor."); Recht v. Metro Goldwyn Mayer Studio, Inc., 2008 WL 4460379, *2 (W.D.Wis. Sept. 29, 2008) ("Even if she were allowed to intervene, Ms. Recht would have no standing to question the venue in this case."); Dexia Credit Local v. Rogan, 2008 WL 4543013, *6 (N.D.Ill. Oct. 9, 2008) (observing that
Notwithstanding these authorities, the Association Intervenors posit that "the better reasoned and more recent holdings" are to the contrary. (Id.) Neither prong of this argument is persuasive. As shown by the foregoing citations, the cases finding that intervenors cannot challenge venue are not antiquated, dust-encrusted relics, but instead date all the way through the present. Moreover, the reasoning of those decisions is not perfunctory, but is intuitive and clear, and has enjoyed broad acceptance by courts and treatises alike. To be sure, the Association Intervenors have cited a pair of cases showcasing a minority viewpoint, but neither of them squarely addresses the subject via holding and in-depth treatment of venue. See S.E.C. v. Ross, 504 F.3d 1130, 1149-50 (9th Cir. 2007) (in discussion of whether intervenor has waived right to challenge personal jurisdiction, offering opinion that "the quid pro quo for his intervention is that he consents to have the district determine all issues in the case, including issues of jurisdiction, venue and service of process"); Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of Interior, 100 F.3d 837 (10th Cir.1996) (stating in dicta, without citation or elaboration, that an intervenor "has the right to file legitimate motions, including venue motions"). Nor do these authorities cited by the Association Intervenors acknowledge or rebut the extensive body of case law and commentators that have rejected the notion that intervenors may litigate whether venue is proper under Rule 12(b)(3).
At least one commentator has described the Ninth Circuit's approach in Ross, with respect to its finding that intervenors do not waive personal jurisdiction objections, as a "minority position" of "questionable" validity. 6 Moore's Federal Practice, at § 24.22[4]. More importantly, the personal jurisdiction analysis in Ross conflicts with the law of this Circuit. See In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1248 (11th Cir.2006) ("Westgate challenges the district court's jurisdiction over its person, but by filing a successful motion to intervene, it acquiesced to such jurisdiction."); see also Angel Flight of Georgia, Inc. v. Angel Flight America, Inc., 272 Fed.Appx. 817, 820 n. 2 (11th Cir.2008) (noting that binding Circuit precedent "suggests strongly that a party may not intervene for any purpose without conceding personal jurisdiction"). This Court could not adopt Ross, as the Association Intervenors urge it to do, without rejecting Bayshore Ford, which is binding precedent. See Ross, 504 F.3d at 1148-50 (considering and declining to follow Bayshore Ford on this point).
The bottom line is this: By voluntarily intervening in this action, the Association Intervenors (and Chevron, for that matter) invoked and acquiesced to the jurisdiction of this District Court, and thereby waived their privilege not to be required to engage in litigation in this forum. Accordingly, the Association Intervenors' Motion to Dismiss is
The Association Intervenors also seek dismissal of Claims One and Two insofar as they relate to Lease Sale 213 (as to which the Federal Defendants did not move for dismissal). The thrust of their argument is that BOEMRE was under no obligation to prepare a supplemental EIS for Lease Sale 213 based on the Deepwater Horizon spill because there was no major Federal action remaining to occur at that time.
To understand movants' point, it is helpful to summarize briefly the timeline as to Lease Sale 213. The Federal Defendants prepared an initial EIS for the 2007-2012 Program in 2007, a supplemental EIS in September 2008, and an Environmental Assessment in October 2009 as to Lease Sale 213. (See doc. 63, at Exhs. 3-7.) On February 12, 2010, the Federal Defendants published a Final Notice of Sale as to Lease Sale 213, wherein they announced that public bid reading would occur on March 17, 2010 in New Orleans, Louisiana. See 75 Fed.Reg. 6874 (Feb. 12, 2010). That Notice further specified procedures by which bids would be evaluated and considered. Id. at 6881. A press release issued by the Federal Defendants on March 16, 2010 confirmed that Lease Sale 213 was moving forward as scheduled, with "67 companies submitting 642 bids on 468 tracts" in that lease sale. (Doc. 63, at Exh. 9.) The press release also stated that bids had been received for "[a] total of 295 tracts in water depths greater than 1,300 feet," that the sealed bids would be publicly read the following morning, and that "[t]he high bidder for each tract will have its bid analyzed for fair market value before the lease is awarded." (Doc. 63, at Exh. 9.)
With respect to Lease Sale 213, BOEMRE accepted bids on 85 tracts pursuant to Phase 1 of its bid adequacy procedures on March 31, 2010, some three weeks before the Deepwater Horizon explosion. (Doc. 63, at Exh. 11.) Phase 2 continued for several months thereafter, and by June 11, 2010, BOEMRE had accepted bids on an additional 385 tracts,
Based on these facts, the Association Intervenors theorize that DOW's claims alleging violations of law by the Federal Defendants for not requiring a Supplemental EIS before moving forward with Lease Sale 213 post-April 20, 2010 are not cognizable. In support of this notion, the Association Intervenors rely on the black-letter rule that supplementation of an EIS is required only if there remains "major Federal action" to occur. See, e.g., Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 73, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) ("supplementation is necessary only if there remains `major Federal action' to occur"); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ("If there remains `major Federal actio[n]' to occur, and if the new information is sufficient to show that the remaining action will `affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.") (citation omitted).
Defining the term "major Federal action" is not a straightforward proposition. Relevant regulations provide that "Major Federal action includes actions with effects that may be major and which are potentially subject to Federal control and responsibility." 40 C.F.R. § 1508.18. "Federal action" may include activities such as "[a]pproval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities." Id. § 1508.18(b)(4); see also Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1213 (11th Cir.2002) (under NEPA regulations, "major actions include approving permits for construction"). Although the case law is not uniform, a reasonable, helpful formulation of the "major Federal action" test provides that if "the actions remaining to the [agencies] . . . are purely ministerial, or if the agencies have no discretion that might usefully be informed by further environmental review, then there is no major federal action and no SEIS must be prepared." Hammond v. Norton, 370 F.Supp.2d 226, 255 (D.D.C.2005) (citing Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C.Cir.2001)); see also Southern Utah Wilderness Alliance v. Office of Surface Min. Reclamation and Enforcement, 2008 WL 4912058, *12 (D.Utah Nov. 14, 2008) (no "major federal action" requiring supplemental EIS where agency "retained no discretion to decide whether the projects should go forward or to determine the terms and conditions of the projects' approval").
The Association Intervenors say that the "major Federal action" prerequisite for a
The facts do not support movants' proposition that there was no major Federal action left to occur with regard to Lease Sale 213 as of April 20, 2010. By the Association Intervenors' own admission, BOEMRE was still evaluating—and had not accepted—bids for hundreds of tracts involved in Lease Sale 213 at that time. There is no indication, and no reason to believe, that BOEMRE's review of those outstanding bids was a purely ministerial function as to which it lacked any meaningful discretion.
The Association Intervenors' Motion to Dismiss is
Recall that in Claim Four, DOW alleges that the Federal Defendants violated their obligation under the ESA to insure no jeopardy to protected species when they proceeded with Lease Sale 213 bid approval following the Deepwater Horizon spill. The Association Intervenors maintain that Claim Four should be dismissed because (i) "the claim ignores that Lease Sale 213 had already occurred more than a month before the oil spill," and (ii) the claim fails pursuant to North Slope Borough v. Andrus, 642 F.2d 589 (D.C.Cir. 1980) because carrying out a lease sale involves only "preliminary activities" that do not harm endangered species. (Doc. 63-1, at 17-18.)
The Association Intervenors' position that DOW's ESA claim should be dismissed because Lease Sale 213 had already happened is a variant of its argument that no supplemental EIS is needed as to Lease Sale 213 because there was no remaining major Federal action to occur. This theory fails in the ESA context just as it did in the NEPA context. As discussed supra, after the Deepwater Horizon spill, BOEMRE continued to analyze and accept numerous bids concerning Lease Sale 213. If, in performing those discretionary, non-ministerial actions after April 20, 2010, BOEMRE shirked its obligation under § 7(a) of the ESA to ensure that the authorized conduct is not likely to jeopardize the continued existence of listed species, then DOW's Claim Four would be cognizable. The Court therefore rejects movants' contention that Lease Sale 213 predated the Deepwater Horizon incident and that DOW is barred from raising a § 7(a) ESA claim concerning Lease Sale 213 on that basis.
The Association Intervenors' alternative argument that Claim Four is foreclosed by North Slope Borough fares no better. Movants rely on dicta from North Slope Borough to imply that § 7(a) of the ESA does not apply to early stages of OCSLA lease sales because environmental review at subsequent stages of the process (oil/gas exploration, production and sale) is sufficient to protect endangered and threatened species from harm. But the D.C. Circuit stopped well short in that case from declaring that BOEMRE can ignore the "no jeopardy" strictures of ESA in accepting bids for lease sales.
For all of the foregoing reasons, the Association Intervenors' Motion to Dismiss is
Finally, the Court considers those aspects of intervenor Chevron's Motion to Dismiss that have not been adequately addressed in analyzing the other Rule 12(b) motions.
Chevron's contention that Claim Four is inadequately pleaded flows from the baseline legal requirement that only final agency action is subject to judicial review. See, e.g., National Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir.2003) ("federal jurisdiction is similarly lacking when the administrative action in question is not `final'").
A fair reading of the Third Amended Complaint defeats this objection. Far from lobbing broadside programmatic attacks at BOEMRE or the 2007-2012 Program, the Fourth Claim is focused specifically on allegations that the agency "relied on these faulty opinions [by NMFS and FWS] in proceeding with lease sales in the Gulf after the Deepwater Horizon incident," and that the agency's actions in this regard "are in violation of its independent duty to insure that its actions are not likely to jeopardize the continued existence of any listed species." (Doc. 61, ¶ 73.) Moreover, the Third Amended Complaint elaborates on the factual underpinnings of this claim by specifically alleging with regard to Lease Sale 213 that, following March 16, 2010, "BOEM has been continuously analyzing and approving the bids incrementally, with many of these approvals taking place since the Deepwater Horizon spill." (Id., ¶ 47.) Under any reasonable construction of the Third Amended Complaint as a whole, DOW has identified specific final agency actions post-Deepwater Horizon (namely, BOEMRE's continued acceptance of lease bids in connection with Lease Sale 213) that it contends run afoul of the agency's duties under § 7(a) of the ESA. Accordingly, Claim Four is not an impermissible programmatic challenge to the 2007-2012 Program divorced from
Chevron's other new argument concerns the sufficiency of DOW's written pre-suit notice to BOEMRE. The ESA mandates that no plaintiff may commence an action under the statute's citizen-suit provision "prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation." 16 U.S.C. § 1540(g)(2)(A)(i); see also Friends of Animals v. Salazar, 670 F.Supp.2d 7, 13 (D.D.C.2009) ("When bringing an action pursuant to the citizen suit provisions of the ESA, no plaintiff may commence an action without giving the Secretary sixty-days prior written notice of its intent to sue."). "The sixty-day notice requirement is jurisdictional and failure to comply strictly with the notice requirement acts as an absolute bar to bringing suit under the ESA." Pulaski v. Chrisman, 352 F.Supp.2d 1105, 1115-16 (C.D.Cal.2005); see also Conservation Force v. Salazar, 715 F.Supp.2d 99, 102 (D.D.C.2010) (declaring that 60-day notice requirement under ESA is "mandatory and jurisdictional") (citations omitted). So, if DOW did not give BOEMRE the requisite sixty days notice of its ESA § 7(a) claim asserted in Claim Four, then the Court lacks jurisdiction to hear it and that cause of action must be dismissed.
In support of this theory of dismissal, Chevron submits a copy of DOW's notice letter to the Federal Defendants dated May 17, 2010. (See doc. 68, at Exh. 1.) That letter alleges in its opening paragraph that, inter alia, BOEMRE is in violation of § 7 of the ESA through its failure to insure that its actions "are not likely to jeopardize the continued existence of any threatened or endangered species." (Doc. 68, Exh. 1, at 1.) Elsewhere, the May 17 letter reiterates BOEMRE's ongoing duty under § 7(a) of the ESA to insure against jeopardy, and specifically states that the agency's "decision to proceed with the lease sales in the Gulf" is an agency action under the ESA and that its failure, in the wake of the Deepwater Horizon spill, "to address this new information and meaningfully analyze the potential risks to marine and coastal species constitutes a violation of section 7." (Id. at 7.) Under any reasonable reading of the May 17 letter, the Federal Defendants were put on notice of DOW's contention that the agency's decision to proceed with lease sales after Deepwater Horizon without analyzing the new information amounted to a violation of its ongoing duty under the ESA to insure against jeopardy. This is the very claim brought in Claim Four of the Third Amended Complaint. As such, the May 17 notice letter was sufficient to place the Federal Defendants on notice of Claim Four and adequately fulfilled DOW's pre-suit notice obligations under § 1540(g)(2)(A)(i). See Loggerhead Turtle
Accordingly, Chevron's Motion to Dismiss is
For all of the foregoing reasons, it is hereby
All Defendants are
