Defenders of Wildlife v. Minerals Management Service et al

Filing 81

Order granting in part denying in part 63 , 66 & 68 Motions to Dismiss. All Defendants are ordered to file answers to the Third Amended Complaint by 6/6/2011. Also, the parties are reminded of their responsibility to file their Rule 26(f) report within one week after today's ruling. Signed by Chief Judge William H. Steele on 5/23/2011. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DEFENDERS OF WILDLIFE,
Plaintiff,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT, REGULATION, AND
ENFORCEMENT, et al.,
Defendants,
CHEVRON U.S.A. INC., et al.,
Intervenor-Defendants.

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CIVIL ACTION 10-0254-WS-C

ORDER
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 Chevron U.S.A.
Inc.’s Motion to Dismiss (doc. 68). All three overlapping Rule 12(b) Motions have been briefed
extensively, and are ripe for disposition.
I.

Nature of the Action.
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”);1 the United States Department of the Interior; and Ken Salazar,
Secretary of the Interior (collectively, the “Federal Defendants”).2 The lawsuit proceeds from
1

That agency was previously known as the Minerals Management Service
(“MMS”). The change in agency names is not material to this dispute. Accordingly, to avoid
unnecessary confusion, this Order will refer to both current and former iterations of that agency
as BOEMRE, without differentiating between when it was called MMS and when it became
known as BOEMRE.
2

The parties concur that, under the Outer Continental Shelf Lands Act, 43 U.S.C.
§§ 1331 et seq. (“OCSLA”), the Federal Defendants adhere to a five-step process for federal
(Continued)

DOW’s position that, in the wake of the Deepwater Horizon drilling rig explosion and oil spill in
the Gulf of Mexico on April 20, 2010, the Federal Defendants have failed to modify their
policies and practices concerning offshore oil and gas leasing operations in the Gulf as required
by the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. (“NEPA”); the
Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA”); and the Administrative Procedure
Act, 5 U.S.C. §§ 551 et seq. (“APA”).
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 EIS”) governing 11 lease sales in the Gulf (including Lease Sale 213), even though

offshore oil and gas leasing, exploration, and development on the Outer Continental Shelf.
Those steps are as follows: (i) the Secretary develops a five-year leasing program, prepares a
lease sale schedule, and completes a programmatic environmental impact statement (“EIS”); (ii)
after preparation of a multi-sale EIS for the anticipated lease sales, leases are offered and
awarded through competitive auctions, with each lease conveying an exclusive right to the
successful bidder to explore, develop and produce oil and gas on a specific tract for a specific
period of time; (iii) the lessee submits an Exploration Plan to the BOEMRE for approval setting
forth its plans for exploration activities, drilling methods and exploratory wells; (iv) if
exploration is successful, the lessee submits for approval a Development Operations
Coordination Document delineating the number and location of production wells, type of
platform, and the like; and (v) the lessee sells the recovered oil and gas. (Doc. 66-1, at 3-4; doc.
72, at 4.) This action appears primarily focused on the second stage of the OCSLA process,
inasmuch as DOW’s Third Amended Complaint stripped out various allegations and claims that
would have related to the third and fourth stages.

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key conclusions of the Multi-sale EIS are demonstrably invalid after the Deepwater Horizon oil
spill. In this regard, DOW maintains that BOEMRE “must prepare a supplemental Multisale EIS
and [Environmental Assessments] for ongoing and future lease sales” (doc. 61, ¶ 60), and that its
failure to do so violates NEPA and the APA. Claim Two focuses on Lease Sale 213, and alleges
an APA violation based on BOEMRE’s acceptance of bids for more than 200 new oil and gas
leases in the Gulf in that lease sale following the Deepwater Horizon spill, “in reliance on the
invalid conclusions of the Multisale EIS and Environmental Assessment – Finding of No
Significant Impact for Sale 213 and without supplementation of the EIS based on significant new
circumstances and information.” (Id., ¶ 65.) Claim Three alleges that BOEMRE violated the
APA and the ESA by failing to reinitiate consultation with the National Marine Fisheries Service
(“NMFS”) and U.S. Fish and Wildlife Service (“FWS”) based on new information from the
Deepwater Horizon spill showing that deepwater drilling in that area may harm endangered or
threatened species and critical habitat. And in Claim Four, DOW maintains that BOEMRE
violated the APA and the ESA by “proceeding with lease sales in the Gulf after the Deepwater
Horizon incident, … in violation of its independent duty to insure that its actions are not likely to
jeopardize the continued existence of any listed species.” (Id., ¶ 73.)
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, 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
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interests of efficiency and clarity, the Court will address the Federal Defendants’ Motion first,
then turn to non-redundant aspects of the intervenors’ Motions.
II.

Rule 12(b) Standards.
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.3
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 true.” Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009); see
also Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control and
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (“In ruling on a 12(b)(6) motion, the Court
accepts the factual allegations in the complaint as true and construes them in the light most
favorable to the plaintiff.”).
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, --- U.S. ----, 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. 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).

3

The intervenors also invoke the improper venue provision of Rule 12(b)(3) as a
separate ground for seeking dismissal. The appropriate legal standard for the Rule 12(b)(3) issue
will be addressed infra as appropriate.

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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”).4
III.

The Federal Defendants’ Motion to Dismiss.
The Federal Defendants seek dismissal of Claims One and Three, and a portion of Claim

Four, principally on grounds of mootness and ripeness. The Federal Defendants acknowledge,
however, that they “are not currently moving to dismiss the Second Claim for Relief that appears
to challenge the acceptance of bids under Lease Sale 213.” (Doc. 66-1, at 2 n.2.)5

4

The Association Intervenors insist that for challenges to subject matter
jurisdiction and venue, courts may look beyond well-pleaded factual allegations of a complaint.
That is true in certain instances. See Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)
(explaining that “a judge may make factual findings about subject matter jurisdiction on a Rule
12(b)(1) motion” and “may make factual findings necessary to resolve motions to dismiss for …
improper venue”); Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237-38 (11th Cir. 2002)
(explaining that if Rule 12(b)(1) motion argues that facts as stated do not provide cause for
federal jurisdiction, then plaintiff’s factual allegations receive presumption of truthfulness, as
opposed to where 12(b)(1) motion attacks the very facts providing cause for jurisdiction). The
12(b)(1) motions in this case are largely facial attacks on subject matter jurisdiction, as to which
the well-pleaded allegations of the Third Amended Complaint are taken as true. In any event,
this discussion is largely academic, inasmuch as movants have not identified any contested facts
that would materially alter the jurisdictional or venue determinations in this case. The parties’
briefs do not point out any significant disputes of fact that might sway the Rule 12(b)(1) or
12(b)(3) analyses in one direction or the other.
5

The Federal Defendants elaborate on their intentions as to the Second Claim in
their reply, wherein they state that they “will address the Second Claim for Relief in a Motion for
Summary Judgment.” (Doc. 77, at 2 n.1.) Although the Federal Defendants have not moved for
dismissal of Claim Two, the intervenors have done so; therefore, the viability of Claim Two for
Rule 12(b) purposes will be explored in § IV, infra.

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A.

Claim One: Failure to Prepare Supplemental Multisale EIS for Ongoing and
Future Lease Sales.

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.)6 The Federal Defendants seek
dismissal of Claim One on grounds of mootness (in that BOEMRE is in fact preparing a
supplemental Multi-sale EIS and will likewise supplement the EAs for Lease Sales 206 and 213),
ripeness (in that plaintiff’s challenges to future lease sales in Claim One are not ripe for judicial
review), and lack of final agency action.
1.

The Mootness Doctrine and Claim One.

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.7 A notice that BOEMRE published in the
Federal Register on November 10, 2010, confirms this development, as follows: “The BOEMRE
is announcing its intent to prepare a supplemental environmental impact statement (SEIS)” that
will, among other things, “update the environmental and socioeconomic analyses in the Gulf of
Mexico OCS Oil and Gas Lease Sales: 2007-2012,” as well as those associated with at least 11

6

As explained by plaintiff, this “tiering” concept works as follows: BOEMRE
prepared a single Multi-sale EIS for Outer Continental Shelf oil and gas exploration and
development in the Gulf of Mexico for the period spanning from 2007 to 2012 (the “2007-2012
Program”). That Multi-sale EIS analyzed the environmental impacts of some 11 contemplated
lease sales for that period. For each specific lease sale, the Federal Defendants also prepared an
Environmental Assessment (“EA”) that was “tiered to” the Multi-sale EIS, in that each EA relied
on the Multi-Sale EIS and found no significant impacts not previously studied in that document.
(Doc. 72, at 5.) So if the Multi-sale EIS is invalid, then EAs tiered off that EIS are similarly
problematic.
7

As the Federal Defendants put it, “BOEMRE has initiated the preparation of an
SEIS and will not conduct another lease sale under the Multi-sale EIS until the SEIS is
completed.” (Doc. 66-1, at 9.)

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specific lease sales. 75 Fed. Reg. 69122-01 (Nov. 10, 2010).8 The November 10 Notice
continues that “[a] SEIS is deemed appropriate … in order to consider new circumstances and
information arising, among other things, from the Deepwater Horizon blowout and spill.” Id.
As a general proposition, “[a] case is moot when it no longer presents a live controversy
with respect to which the court can give meaningful relief. If events that occur subsequent to the
filing of a lawsuit … deprive the court of the ability to give the plaintiff … meaningful relief,
then the case is moot and must be dismissed.” National Ass’n of Boards of Pharmacy v. Board
of Regents of the University System of Georgia, 633 F.3d 1297, 1309 (11th Cir. 2011) (citations
omitted); see also Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340, 1351 (11th Cir. 2011).
Dismissals on mootness grounds are properly entered under Rule 12(b)(1) as dismissals for lack
of subject matter jurisdiction. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182
(11th Cir. 2007).
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.9 For its part, DOW contests this mootness argument,
even as it acknowledges BOEMRE’s formal announcement of its intent to prepare a
supplemental EIS governing the remainder of the 2007-2012 Program. Plaintiff reasons that,
despite its efforts to supplement the Multi-sale EIS, BOEMRE is nonetheless “violating NEPA
by continuing to tier its approval of drilling plans and lease sales to an admittedly inadequate
EIS.” (Doc. 72, at 7.) Thus, DOW’s theory is that Claim One is not moot, even though
BOEMRE is working on a supplemental EIS, because it is continuing to approve “drilling plans
and lease sales” based on the old EIS.
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

8

Six days later, BOEMRE published a follow-up Notice that corrected certain
“clerical errors” contained therein. See 75 Fed. Reg. 70023-01 (Nov. 16, 2010).
9

As the Federal Defendants succinctly put it, “BOEMRE has committed to
preparing the SEIS, which is the very relief that DOW seeks in its First Claim.” (Doc. 77, at 5.)

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presented in the Third Amended Complaint.10 Even if Claim One in fact asserted violations
based on the Federal Defendants’ approval of drilling plans, which it does not, any such claims
would be properly dismissed because exclusive jurisdiction over them vests with the courts of
appeals. See 43 U.S.C. § 1349(c)(2) (“Any action of the Secretary to approve … any exploration
plan or any development and production plan under this subchapter shall be subject to judicial
review only in a United States court of appeals ….”).11 To the extent, then, that DOW would
bolster Claim One with argument that the Federal Defendants are approving drilling/exploration/
production/development plans that they should not, that argument fails because (i) Claim One
omits any “drilling plan” theories, and (ii) even if the Third Amended Complaint brought claims
based on the agency’s approval of drilling plans, such claims would be precluded in this District
Court by § 1349(c)(2)’s mandate that such claims are reviewable only in the United States Court
of Appeals for the circuit encompassing the affected state.
10

In submitting its Third Amended Complaint, DOW expressly deleted its claims
regarding drilling plans, including allegations that the Federal Defendants were violating NEPA
by granting categorical exclusions “for exploration and drilling operations in the Gulf of
Mexico” (Doc. 33, ¶ 92) following the Deepwater Horizon explosion. Plaintiff thus voluntarily
dismissed that aspect of its claims. (See doc. 60.) Having done so, DOW cannot now backdoor
these dismissed claims and allegations back into this case via arguments that Claim One is not
moot because BOEMRE is “violating NEPA by continuing to tier its approval of drilling plans
… to an admittedly inadequate EIS.” (Doc. 72, at 7.) Yet DOW attempts to do just that. Its
briefs on the Rule 12(b) Motions are rife with references to “the granting of applications for
permits to drill” (doc. 72, at 2), BOEMRE’s approval of “twenty-seven exploration plans or
development operations coordination documents” between June 2010 and December 2010 (id. at
11), its approval of “over 3000 applications for permission to drill” (id. at 11-12), BOEMRE’s
recent notice to “thirteen companies involved in deepwater drilling that they are able to resume
drilling at certain deepwater wells without undergoing additional environmental review” (doc.
74, at 5), “ongoing approval of … drilling projects” (id. at 6), and so on. Such allegations are
perplexing, given DOW’s excision of all drilling-related claims from its Third Amended
Complaint. They are also inappropriate, given the well-settled principle that federal district
courts are not empowered under the OCSLA to review BOEMRE’s approval of exploration,
development and production plans for lessees whose bids have previously been accepted.
11

See also Edwardsen v. U.S. Dep’t of Interior, 268 F.3d 781, 784 (9th Cir. 2001)
(“The Secretary’s action to approve, require modification of, or disapprove a [development and
production plan] is subject to judicial review only in the United States Court of Appeals”); Shell
Oil Co. v. F.E.R.C., 47 F.3d 1186, 1192 (D.C. Cir. 1995) (“judicial review of decisions with
respect to leasing [programs], exploration, development or production plans shall take place only
in the courts of appeals”).

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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.12 But Lease Sale
213 is the rub. The Federal Defendants do not maintain that no bid approvals have occurred on
Lease Sale 213 following the Deepwater Horizon disaster, and the Third Amended Complaint
contains specific factual allegations to the contrary. See doc. 61, ¶ 2 (“In violation of NEPA and
its own regulations, BOEM has accepted bids on at least 221 new leases in Lease Sale 213 for
deepwater wells … since the BP well blowout.”). Rather than suggesting that Claim One should
be dismissed insofar as it concerns Lease Sale 213 activity, the Federal Defendants simply state
in a footnote that “Plaintiff’s claim as to Lease Sale 213 is embodied in its Second Claim for
Relief, and this motion does not seek dismissal of that Claim.” (Doc. 66-1, at 9 n.5.)
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.13 That said, the Court agrees
12

In particular, the Federal Defendants show that, at the inception of this case, there
were four remaining lease sales scheduled under the 2007-2012 Program, those being Lease
Sales 215, 216, 218 and 222. Lease Sale 215 has been canceled. See 75 Fed. Reg. 44276-03
(July 28, 2010) (“On May 27, 2010, the President announced the Secretary of the Interior’s
decision to cancel WPA Sale 215 that was scheduled to occur on August 18, 2010.”). And the
Secretary of the Interior issued a press release on December 1, 2010 stating that the other three
lease sales (which were slated for 2011 and 2012) would not go forward until after the
supplemental Multi-sale EIS has been prepared. (Doc. 66-1, at 10; doc. 77, at 4.) Plaintiff has
neither alleged nor shown that any of Lease Sales 215, 216, 218 or 222 have proceeded in any
way under the old, outdated EIS.
13

Stated differently, the Third Amended Complaint alleges that BOEMRE has
continued accepting bids under Lease 213 after the Deepwater Horizon disaster, tiering such
actions on what it knows to be an invalid EIS. That claim (which is fairly presented in both
Claim One and Claim Two) is not mooted by BOEMRE’s commitment to prepare a
supplemental EIS because it alleges that BOEMRE is continuing to accept bids under the old,
incorrect EIS in the interim.

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with the Federal Defendants that the remainder of Claim One is moot. DOW contends that
BOEMRE must supplement the EIS, but BOEMRE is already doing so.
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.)14 But in that notice, the Federal Defendants unequivocally committed to preparing the
supplemental EIS, which is precisely the relief that Claim One requests. Moreover, in various
14

Plaintiff elaborates that “the decision to create a SEIS for future lease sales does
nothing to alleviate the fact that, in the interim, BOEM is still relying on problematic NEPA
analyses.” (Doc. 72, at 9.) It is not clear what BOEMRE activity plaintiff is referencing here. If
plaintiff intends to reference approval of drilling plans, then that claim is beyond this Court’s
jurisdiction for the reasons stated supra. If plaintiff is referencing Lease Sale 213, then that
argument need not be considered because, as noted, the Federal Defendants do not seek Rule
12(b) relief as to Lease Sale 213 claims. If plaintiff is suggesting that other lease sale bids are
being accepted based “on problematic NEPA analyses” post-Deepwater Horizon, that assertion
fails because the Court has no evidence, no argument, and no allegations in the pleadings that
such is the case, and the Federal Defendants have expressly denied same.

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Federal Register notices, the Federal Defendants have either canceled (in the case of Lease Sale
215) or specifically stated their intent to analyze (in the case of Lease Sales 216, 218 and 222)
under that supplemental EIS all remaining lease sales.15 In short, BOEMRE has bound itself, via
Federal Register notices, to prepare the supplemental EIS that DOW wants and to analyze the
remaining lease sales under the 2007-2012 Program pursuant to that supplemental EIS. There is
no “voluntary cessation” problem here, and nothing in plaintiff’s showing or argument
overcomes the presumption that the Federal Defendants’ purportedly offending behavior will not
recur.
2.

The Ripeness Issue and Claim One.

Claim One specifically mentions future lease sales, and DOW’s Third Amended
Complaint seeks injunction of “future lease sales” pending preparation of a supplemental Multisale 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
15

Of course, the exception is Lease Sale 213, which is for reasons already stated
outside the scope of the Federal Defendants’ Motion to Dismiss and therefore not embraced by
this discussion.

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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.)16 Rather, DOW explains, its Third Amended
Complaint “relate[s] to the inadequacy of BOEM’s environmental review at present” and it
“seeks to remedy existing instances of such faulty reliance” on the now-outdated Multi-sale EIS.
(Id.)
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 Multi-sale EIS, the Court need not examine
further the ripeness and final agency action arguments. DOW has expressly disclaimed any
intent to challenge lease sales that have not yet occurred or to seek relief in Claim One for lease
sales that have not been approved or initiated at this time, based on speculation about what
BOEMRE might do in the future.17
16

In that respect, DOW correctly concedes that the adequacy of any future
supplemental EIS or the propriety of tiering future lease sales from that document are “topics
that could be reviewed at a later time” and that would not properly be litigated here. (Id.)
17

A recurring theme in the various Rule 12(b) Motions in this case is that DOW’s
claims are not ripe insofar as it is contending that future lease sales conducted by BOEMRE may
violate NEPA, the APA, or the ESA. The foregoing analysis applies with equal force to all of
(Continued)
-12-

B.

Claim Three: Failure to Reinitiate Consultation under ESA.

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).18 ESA consultation is not a one-time-only, “fill-the-square” kind of
obligation. Rather, pursuant to the ESA’s implementing regulations, “[r]einitiation of formal
consultation is required and shall be requested by the Federal agency … [i]f new information
reveals effects of the action that may affect listed species or critical habitat in a manner or to an
extent not previously considered.” 50 C.F.R. § 402.16(b).19 The gravamen of Claim Three is

those arguments. In the interest of efficiency, the Court will not replicate this analysis in this
Order each time another variant of the future lease sales / ripeness challenge is invoked by a
defendant or intervenor-defendant. In all such instances, the argument fails because the Third
Amended Complaint (as construed by this Court and as clarified by plaintiff’s own admissions in
its briefs on the Rule 12(b) motions) does not seek judicial determination that future lease sales
will violate the ESA, NEPA or the APA; rather, plaintiff’s claims are focused on the Federal
Defendants’ current activities and existing instances of alleged non-compliance with statutory
obligations.
18

See also Florida Key Deer v. Paulison, 522 F.3d 1133, 1138 (11th Cir. 2008)
(“[S]ection 7(a)(2) … requires that agencies consult with the FWS to determine the effects of
their actions on endangered or threatened species and their critical habitat.”); 50 C.F.R.
§ 402.14(a) (if federal agency determines that its action “may affect listed species or critical
habitat,” then “formal consultation is required”).
19

See also Wyoming Outdoor Council v. Bosworth, 284 F. Supp.2d 81, 94 (D.D.C.
2003) (under ESA regulations, “both the Forest Service and the FWS are under a duty to
reinitiate formal consultation if new information reveals effects of the action that may affect
listed species or critical habitat in a manner or to an extent not previously considered”) (citations
and internal quotation marks omitted); Lone Rock Timber Co. v. U.S. Dep’t of Interior, 842 F.
Supp. 433, 440-41 (D. Or. 1994) (“the BLM has a continuing duty to reinitiate consultation with
the FWS if new information reveals effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered”).

-13-

that BOEMRE failed to reinitiate consultation concerning lease sales in the Gulf of Mexico
based on new information derived from the Deepwater Horizon oil spill.
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 BOEMRE to the NMFS and FWS. The letter to
NMFS specifies that BOEMRE “requests that the National Marine Fisheries Service (NMFS)
reinitiate consultation (based on the existing consultation and resulting Biological Opinion (BO)
dated June 29, 2007) under Section 7 of the [ESA] on the effects of the Five-Year Outer
Continental Shelf Oil and Gas Leasing Program (2007-2012) in the Central and Western
Planning Areas of the Gulf of Mexico. This request is in response to the Deepwater Horizon
(DWH) incident and is meant to comply with 50 C.F.R. § 402.16.” (Doc. 66, Exh. D.) The letter
to FWS is substantively identical to the NMFS letter in all material respects. (Doc. 66, Exh. E.)20
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.21 DOW’s Claim Three is properly dismissed as moot for the very
same reason.
20

Both letters set forth BOEMRE’s position that “the DWH incident and the
resulting oil spill necessitate this reinitiation action.” (Doc. 66, Exhs. D & E.) The letters also
reflect that “spill volumes and scenarios” addressed in the initial biological opinions “need to be
readdressed” based on the Deepwater Horizon oil spill, and that “[e]ffects to and the status of
some listed species or designated critical habitats may have been altered as a result of the DWH
incident and require further consideration.” (Id.)
21

See Defenders of Wildlife v. Martin, 454 F. Supp.2d 1085, 1103 (E.D. Wash.
2006) (“Clearly Plaintiffs’ third claim regarding reinitiation of consultation is now moot.
Defendants have reinitiated consultation.”); Greenpeace Foundation v. Mineta, 122 F. Supp.2d
1123, 1128 (D. Haw. 2000) (finding moot plaintiff’s claim “to compel NMFS to reinitiate formal
consultation on the Bottomfish FMP in light of new information about the impact of
bottomfishing on the monk seal,” where “NMFS has already acquiesced: It requested reinitiation
of formal Section 7 consultation,” such that “[i]t would serve no purpose to order NMFS to do
what it has already done”); Center for Marine Conservation v. Brown, 917 F. Supp. 1128, 1144
(S.D. Tex. 1996) (where plaintiff sued federal defendants under ESA for failure to reinitiate
(Continued)
-14-

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 “failure to reinitiate consultation with NMFS and FWS
violates § 7(a)(2) of the ESA … and its implementing regulations.” (Doc. 61, ¶ 70.) It is
undisputed that BOEMRE, in fact, reinitiated such consultation back in July 2010. As such, the
entire premise of Claim Three (namely, that BOEMRE has violated the ESA by failing to
reinitiate consultation) has been mooted by the agency’s subsequent conduct (namely, its
reinitiation of consultation). There is no reason for Claim Three to remain in play, inasmuch as
any need for the relief sought therein has been obviated by the Federal Defendants’ actions.
Stated differently, plaintiff has already gotten exactly what it asked for vis a vis this cause of
action.22

formal consultation, and federal defendants had in fact reinitiated consultation, claim was
dismissed because “it is unnecessary for the Court to order the Federal Defendants to do what
they have already done”).
22

It bears emphasis, too, that the dismissal of Claim Three on mootness grounds in
no way deprives DOW of a platform for litigating the Federal Defendants’ alleged ongoing ESA
violations with respect to the “no jeopardy” requirement. Plaintiff’s Fourth Claim specifically
asserts such a claim, and it would serve no purpose to construe the procedural Third Claim so
broadly as to be redundant of the substantive Fourth Claim. Plaintiff’s arguments against
dismissal of Claim Three blur the line between these two conceptually distinct causes of action.
In short, DOW’s claims of ongoing § 7(a)(2) violations live on in Claim Four, so there is no
(Continued)
-15-

C.

Claim Four: Failure to Ensure No Jeopardy under ESA.

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).23
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
that agencies insure that their actions are not likely to jeopardize listed species. Indeed, a fair

reason and no benefit to reframing Claim Three’s narrow “failure-to-reinitiate” theory to
embrace such claims. The authorities cited by DOW in support of Claim Three are
distinguishable for the same reason.
23

See also Sierra Club v. United States Army Corps of Engineers, 295 F.3d 1209,
1211 (11th Cir. 2002) (“Section 7 of the ESA requires every federal agency to insure that its
actions are not likely to jeopardize the continued existence of any species which has been listed
as endangered or threatened.”).

-16-

reading of Claim Four shows no reference to future lease sales at all. On its face, Claim Four is
aimed exclusively at past and current agency actions, and specifically BOEMRE’s reliance on
faulty NMFS/FWS opinions “in proceeding with lease sales in the Gulf after the Deepwater
Horizon incident.” (Doc. 61, ¶ 73.)24 Thus, plaintiff has framed the challenged conduct on
which Claim Four is grounded as being actions that BOEMRE has taken and is taking now in the
wake of the Deepwater Horizon spill, rather than lease sale approvals that may or may not
happen at some future time with or without certain conditions or restrictions, after the conclusion
of reinitiated consultation with NMFS/FWS.25
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 denied insofar
as it relates to Claim Four.
IV.

Additional Issues Raised by Intervenors’ Motions to Dismiss.
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
24

The Federal Defendants do not point to anything in Claim Four that they contend
establishes that plaintiff is seeking relief for future lease sales. At most, they rely on a broad
statement in the Prayer for Relief requesting that the Court “Order all Defendants to comply with
NEPA, the ESA, and the APA in connection with any further actions regarding exploratory
drilling and the approval of any future lease sales in the Gulf.” (Doc. 61, at 22.) While
plaintiff’s use of such overly broad wording in its pleading is regrettable and confusing (and has
been seized upon by all three Rule 12(b) Motions), it has clarified in its briefs that Claim Four is
not asking for a judicial determination that future lease sales approved by BOEMRE will be in
violation of the “no jeopardy” requirement.
25

Plaintiff confirms the validity of this construction in its response brief, wherein
DOW represents that its “claims relate to the inadequacy of BOEM’s environmental review at
present” and “existing instances of such faulty reliance” by the Federal Defendants on
incomplete or outmoded consultations. (Doc. 72, at 13 (emphasis added).) Plaintiff explains that
its concerns “are not with the future lease sales themselves … but with the inadequate
environmental review relied on at present.” (Id. at 14.)

-17-

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.26
A.

The Association Intervenors’ Motion to Dismiss.

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.
1.

Rule 12(b)(3) Objection.

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.

26

In considering the intervenors’ Motions, the Court will not revisit aspects of the
Third Amended Complaint that have already been dismissed pursuant to the Federal Defendants’
Motion to Dismiss. Moreover, to the extent that the intervenors’ Motions duplicate arguments
that have already been considered and rejected by the Court in the context of the Federal
Defendants’ Motion, such arguments will not be considered a second time simply because the
intervenors have repeated them.

-18-

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, SeaChange 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 intervenors “likely have waived any objection to venue by
intervening in this proceeding”); 7C Wright, Miller & Kane, Federal Practice and Procedure:
Civil 3d § 1918 (“The intervenor cannot question venue. By voluntarily entering the action the
intervenor has waived the privilege not to be required to engage in litigation in that forum.”); 6
Moore’s Federal Practice, § 24.22[3] (3d Ed.) (“A person who intervenes as plaintiff or

-19-

defendant may not object to the venue chosen for the action. Since the intervenor specifically
invoked the jurisdiction of the court, any potential venue objections are considered waived.”).27
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., 2008 WL 902982, *3 n.2 (11th Cir. Apr. 4, 2008) (noting that binding
27

Given this considerable collection of authorities, the Court cannot agree with the
Association Intervenors’ characterization that “a few courts may have accepted that view”
championed by DOW. (Doc. 76, at 2.)

-20-

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).28
For these reasons, the Court finds the Association Intervenors’ counterarguments in favor of
allowing them to challenge venue to be fundamentally incompatible with the well-reasoned
majority view and in conflict with Eleventh Circuit law.
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 denied insofar as it is
predicated on a venue objection under Rule 12(b)(3). The intervenors are not entitled to
challenge venue, and the Federal Defendants (who would have been so entitled) have elected not
to do so by not objecting to the venue of this District Court. Therefore, Rule 12(b)(3) dismissal
is not appropriate here, regardless of whether § 1391(e)(2) is satisfied.
2.

Claims One and Two and Lease Sale 213.

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
28

It is true, of course, that Bayshore Ford addresses an intervenor’s right to object
to personal jurisdiction, not venue. But Ross’s reasoning treats personal jurisdiction and venue
the same for purposes of an intervenor’s waiver of right to challenge. Because Ross collides
with Eleventh Circuit law as to personal jurisdiction, all indications are that its reasoning as to
venue would likewise be turned away in this Circuit. Certainly, neither Ross nor the Association
Intervenors proffer any basis in fact or law for treating personal jurisdiction and venue questions
differently with respect to intervenors. The Court declines to follow the Coalition of Arizona
case cited by the Association Intervenors for the same reason.

-21-

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.)29
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, with bids on 20 tracts
rejected, and 5 tracts remaining. (Id. at Exh. 12.)
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

29

BOEMRE’s economic evaluation of high bids involved a two-phase bid adequacy
procedure for ensuring receipt of fair market value. Those procedures were delineated via notice
published in the Federal Register. See 64 Fed. Reg. 37560 (July 12, 1999).

-22-

significant manner or to a significant extent not already considered, a supplemental EIS must be
prepared.”) (citation omitted).30
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”).

30

See also Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.
1981) (“We therefore hold that NEPA does require the supplementation of an EIS when
subsequent project changes can … be classified as major Federal actions significantly affecting
the quality of the human environment”) (citation and internal quotation marks omitted); Greater
Yellowstone Coalition v. Tidwell, 572 F.3d 1115, 1123 (10th Cir. 2009) (agency’s decision not to
supplement was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law, where “there is no ongoing major federal action or major federal action to occur”);
Audubon Naturalist Society of the Central Atlantic States, Inc. v. U.S. Dep’t of Transp., 524 F.
Supp.2d 642, 709 (D. Md. 2007) (similar); Sierra Club v. Bosworth, 465 F. Supp.2d 931, 937
(N.D. Cal. 2006) (“a supplemental EIS should be prepared if … there remains major Federal
action to occur”) (citation and internal punctuation omitted); Senville v. Peters, 327 F. Supp.2d
335, 355-56 (D. Vt. 2004) (“Major federal action … dictates the preparation of a SEIS.”).

-23-

The Association Intervenors say that the “major Federal action” prerequisite for a
supplemental EIS cannot be satisfied here because, at the time of the Deepwater Horizon spill,
Lease Sale 213 “had occurred more than a month previously” and “[t]he only ongoing activity
with respect to Lease Sale 213 … was the determination of the adequacy of individual high
bids.” (Doc. 63-1, at 14.) According to Association Intervenors, “all that remained was
BOEMRE’s assessment – based upon economic criteria, not environmental considerations –
whether the remaining high bids were acceptable.” (Id.) So, in movants’ view, the “major
Federal action” associated with Lease Sale 213 terminated with the public reading of the bids on
March 17, 2010, well before the Deepwater Horizon spill.
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.31 Nor does it appear that any high bidder would have been
entitled to move forward with exploration and production activities at a given tract as of April
20, 2010, if BOEMRE had not yet formally accepted the bid. By regulation, BOEMRE
“reserve[d] the right to reject any and all bids received for any tract, regardless of the amount
offered.” 30 C.F.R. § 256.47(b); see also 75 Fed. Reg. 6874, 6881 (Feb. 12, 2010) (“The United
States reserves the right to reject any and all bids,” as well as “to withdraw any block from this
lease sale prior to issuance of a written acceptance of a bid for the block”).32 In short, on this
record and under the citations provided by the parties, the Court cannot agree with the
Association Intervenors that the “major Federal action” involving Lease Sale 213 concluded with
the public reading of the bids. Rather, there was an ongoing major Federal action as to Lease
Sale 213 during the relevant period as BOEMRE reviewed, evaluated, and accepted or rejected
31

See generally North Slope Borough v. Andrus, 642 F.2d 589, 609 (D.C. Cir. 1980)
(under the OCSLA, “it becomes clear that the Secretary of Interior retains strict control of an
outer continental shelf project for its duration, from lease sale to depleted, run-dry well”).
32

These provisions undermine the Association Intervenors’ contention that
BOEMRE’s review of bids was confined to purely economic considerations and that it could not
take other factors into account in deciding whether to accept such bids.

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particular bids.33 Acceptance of bids is a major Federal activity because BOEMRE retained
discretion to reject them and to consider noneconomic factors in deciding whether or not to
approve them, and because the mere submission of a high bid (without more) did not confer
upon the bidders any right to lease a particular tract without agency approval.34
The Association Intervenors’ Motion to Dismiss is denied insofar as it rests on a theory
of no major Federal action as to Lease Sale 213 that might trigger any duty on the part of
BOEMRE to prepare a supplemental EIS in the wake of the Deepwater Horizon oil spill.
3.

Claim Four and Lease Sale 213.

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

33

The cases cited by the Association Intervenors on this point are readily
distinguishable. In Center for Biological Diversity v. Salazar, 2010 WL 2493988 (D. Ariz. June
17, 2010), the court found no major Federal action where the agency had already approved the
mine’s plan of operations, and there was no requirement that the agency approve a new plan
before the mine resumed operations; rather, the agency was merely monitoring the mine
operator’s activities. Id. at *4-6. Likewise, in Norton v. Southern Utah Wilderness Alliance, 542
U.S. 55 (2004), the Supreme Court found no major Federal action requiring supplementation
where the agency had already approved the land use plan in question. Id. at 73; see also Cold
Mountain v. Garber, 375 F.3d 884, 894 (9th Cir. 2004) (finding “no ongoing ‘major Federal
action’ requiring supplementation … [b]ecause the Permit has been approved and issued”). By
contrast, BOEMRE had not accepted bids or entered into leases as to hundreds of tracts within
the scope of Lease Sale 213; therefore, there was ongoing major Federal action at that time.
BOEMRE’s role as to Lease Sale 213 on April 20, 2010 extended well beyond mere supervision
and oversight of previously approved activities.
34

The Association Intervenors’ position is further eroded by the fact that BOEMRE
itself acknowledged the need to prepare a supplemental EIS for Lease Sale 213 to account for the
new information obtained as a result of the Deepwater Horizon incident. See 75 Fed. Reg.
69122-01 (Nov. 10, 2010). By all appearances, BOEMRE itself believed that there was ongoing
major Federal action triggering its obligation to prepare a supplemental EIS with respect to Lease
Sale 213.

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out a lease sale involves only “preliminary activities” that do not harm endangered species.
(Doc. 63-1, at 17-18.)35
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.36 Indeed, the holding in North Slope Borough was the rather
modest proposition that “section 7(a)(2) was not violated as the Secretary incorporated in the

35

The tension between these two arguments is striking. In essence, the Association
Intervenors’ first assertion is that DOW’s challenge comes too late because Lease Sale 213 was
already a fait accompli when the Deepwater Horizon spill happened, whereas their second
assertion is that DOW’s challenge is premature because the lease sale itself is too early in the
multistage OCSLA process to warrant meaningful § 7(a) scrutiny.
36

The D.C. Circuit expressly disclaimed any notion that the OCSLA’s multistage
structure might “attenuate ESA’s notion of ‘agency action’” to which § 7(a) of the ESA applies.
North Slope Borough, 642 F.2d at 609 (recognizing that “‘agency action’ in this case may signify
the lease sale and all subsequent activities”); see also Conservation Law Foundation of New
England, Inc. v. Andrus, 623 F.2d 712, 715 (1st Cir. 1979) (observing that “[t]he ESA by its
terms applies to all action by the Secretary”).

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‘final notice of sale’ the suggested alternatives that NMFS indicated could ensure the freedom
from jeopardy for the endangered whales.” 642 F.2d at 610 (footnote omitted). Far from
announcing that the Secretary of the Interior can skip § 7(a) of the ESA in carrying out lease
sales, then, the North Slope Borough court found that the Secretary had complied with it by
incorporating the specific recommendations of the NMFS’s biological opinion into the notice of
sale and the accompanying lease stipulations and mitigating measures communicated to lessees.
See id. at 609-10. Viewed through the prism of its § 7(a)(2) holding, rather than its broader
generalizations about the relationship between the ESA and OCSLA, North Slope Borough does
not mandate, or even support, dismissal of DOW’s ESA claims pertaining to Lease Sale 213.37
This is because DOW is alleging that BOEMRE did not do in Lease Sale 213 post-Deepwater
Horizon spill that which the Secretary did in North Slope Borough, namely, “perform[ ] a
comprehensive analysis of all the ramifications of the lease sale” and honor “the substantive
prescription of section 7(a)(2) to preserve endangered life” after obtaining new, material
information from the oil spill. Id. at 609.
For all of the foregoing reasons, the Association Intervenors’ Motion to Dismiss is
denied as to Claim Four.
B.

Chevron’s Motion to Dismiss.

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.38 In particular,
37

The same is true of the more recent D.C. Circuit opinion, Center for Biological
Diversity v. U.S. Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009), cited by the Association
Intervenors. In that case, the D.C. Circuit concluded that an ESA challenge to the “initial stage
of the Leasing Program” was not ripe because it was “not certain … that any of the endangered
species in the areas at issue may be affected by the Program, as the proposed leases in these areas
might never come to pass.” Id. at 483. At the relevant time, Lease Sale 213 was one full step
beyond the “initial stage of the Leasing Program,” so Center for Biological Diversity is
inapposite. Besides, the D.C. Circuit noted in that case that for “later stages of the program, each
… requires ESA consultation and additional environmental review by Interior.” Id. Lease Sale
213 constitutes just such a “later stage” of the leasing program, as to which Center for Biological
Diversity opines that ESA consultation and additional environmental review are mandatory.
38

In granting Chevron’s request to intervene, the Court cautioned that it “would be
counterproductive and detrimental to the interests of efficiency and justice for Chevron and the
Associations to deluge this Court and adverse parties with a flood of duplicative or substantially
overlapping materials as this case proceeds.” (Doc. 67, at 6.) That Order specifically directed
(Continued)
-27-

Chevron interposes new arguments that Claim Four is not adequately pleaded and that DOW
failed to furnish adequate statutory notice to the Federal Defendants of certain aspects of that
claim.39
1.

Adequacy of Pleading Claim Four.

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’”).40 The “final
agency action” requirement has been applied to the ESA context, and no party suggests that it is
inapplicable here. See Bennett v. Spear, 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281
(1997) (declining to administer the ESA in a manner that “would effect a wholesale abrogation
of the APA’s ‘final agency action’ requirement”); Miccosukee Tribe of Indians of Florida v.
United States, 566 F.3d 1257, 1264 (11th Cir. 2009) (“Biological opinions are final agency
actions subject to judicial review”); National Ass’n of Home Builders v. Norton, 415 F.3d 8, 13
(D.C. Cir. 2005) (“There exists no statutory review provision in the ESA that authorizes judicial
review of agency action beyond that provided for in the APA. … Thus, an agency action must be
final in order to be judicially reviewable.”) (citations omitted). Chevron maintains that Claim

Chevron to coordinate its efforts with the Association Intervenors in motion practice and
discovery alike “to avoid unnecessary duplication.” (Id.) Notwithstanding these admonitions,
much of Chevron’s Motion to Dismiss reads as a “me too” motion that reiterates (without
materially elaborating on or extending) arguments previously developed in the other Rule 12(b)
motions. Chevron must redouble its efforts to avoid unnecessary multiplication of filings and
duplication of arguments as this case moves forward.
39

Chevron also makes these arguments with regard to Claim Three; however, the
Court need not address those aspects of the Motion because Claim Three has been dismissed
pursuant to the Federal Defendants’ Rule 12(b) Motion. See § III.B., supra.
40

See also Fanin v. United States Dep’t of Veterans Affairs, 572 F.3d 868, 877 (11th
Cir. 2009) (“If the claim attacks an agency’s action … and if the statute allegedly violated does
not provide a private right of action, then the agency action must also be a final agency action.”)
(citations and internal quotation marks omitted); Georgia Power Co. v. Teleport
Communications Atlanta, Inc., 346 F.3d 1047, 1050 (11th Cir. 2003) (“Only final agency actions
can be subject to judicial review.”).

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Four does not satisfy the “final agency action” requirement because it “raises only general ESA
challenges” and seeks an order “broadly requiring ESA compliance” by BOEMRE. (Doc. 68, at
12.) In Chevron’s view, the Third Amended Complaint “does not identify a single specific ‘final
agency action’ within the Secretary’s broad leasing program that is alleged to violate the ESA.”
(Id. at 13.)
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 any final agency actions, and
Chevron is not entitled to dismissal of that claim on that basis.41

41

This is particularly true, given that the sufficiency of DOW’s Third Amended
Complaint is gauged under the liberal “notice pleading” standards of Rule 8, Fed.R.Civ.P. See
generally Speaker v. U.S. Dep’t of Health and Human Services Centers for Disease Control and
Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (observing that federal pleading standards do
“not require heightened fact pleading of specifics” or “detailed factual allegations,” so long as
the allegations are “enough to raise a right to relief above the speculative level”) (citations
omitted). For better or worse, DOW was not obliged to articulate its claims in the pleadings as
expansively as it could. See In re Southeast Banking Corp., 69 F.3d 1539, 1551 (11th Cir. 1995)
(“[F]or better or for worse, the Federal Rules of Civil Procedure do not permit district courts to
impose upon plaintiffs the burden to plead with the greatest specificity they can.”).

-29-

2.

Adequacy of Statutory Notice as to Claim Four.

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
-30-

Loggerhead Turtle v. County Council of Volusia County, Fla., 148 F.3d 1231 (11th Cir. 1998)
(notice letter was sufficient for ESA purposes even though leatherback sea turtle was mentioned
only in one part of letter, while violations section of letter cited only loggerhead and green sea
turtles, where “the letter as a whole provided notice sufficient to afford the opportunity to rectify
the asserted ESA violations”) (citation omitted).42
Accordingly, Chevron’s Motion to Dismiss is denied insofar as it is predicated on
theories that the Third Amended Complaint has not adequately pleaded ESA violations or that
DOW’s letter to the Federal Defendants was insufficient to comport with jurisdictional pre-suit
notice requirements under the ESA.
V.

Conclusion.
For all of the foregoing reasons, it is hereby ordered that the Motions to Dismiss (docs.

63, 66, 68) are granted in part, and denied in part, as follows:
1.

Claim One of the Third Amended Complaint is dismissed, except for the portion
of Claim One concerning BOEMRE’s acceptance of bids for Lease Sale 213 after
the Deepwater Horizon oil spill without waiting for the supplemental EIS and EA
to be completed;

2.

Claim Three of the Third Amended Complaint is dismissed;

3.

The Court construes the Third Amended Complaint as bringing no claims based
on BOEMRE’s approval of drilling/exploration/production plans. Any such
claims were deleted in plaintiff’s latest amendment of its pleadings and, even if
they were not, are improper because the OCSLA confers exclusive jurisdiction
over them to the relevant court of appeals;

4.

The Court construes the Third Amended Complaint as bringing only challenges
for agency actions that have already happened or are ongoing, not for agency

42

To the extent that Chevron maintains that the notice letter was also deficient for
failing to place the Federal Defendants on notice of future ESA violations that had not happened
yet, that argument is likewise rejected. As discussed supra, the Court does not construe the
Third Amended Complaint as seeking relief under NEPA, the APA, or the ESA for “future
violations,” or as challenging the validity of lease sale approvals that BOEMRE has not yet
made. Rather, the Court construes the Third Amended Complaint as focusing exclusively on
violations that have already happened and/or are ongoing, rather than speculative violations that
may or may not occur at some future date.

-31-

actions that may or may not occur at some point in the future (e.g., claims
concerning future lease sales that have not yet been approved based on
environmental analysis that has not yet been performed/completed); and
5.

In all other respects, the Motions to Dismiss are denied.

All Defendants are ordered to file answers to the Third Amended Complaint on or before
June 6, 2011. Also, the parties are reminded of their responsibility to file their Rule 26(f) report
within one week after today’s ruling. (See doc. 80.)

DONE and ORDERED this 23rd day of May, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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