Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., Civil Action No. 10–0254–WS–C.

• Decision Date: 23 May 2011
• Docket Number: Civil Action No. 10–0254–WS–C.
• Citation: 791 F.Supp.2d 1158
• Parties: 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.
• Court: U.S. District Court — Southern District of Alabama

791 F.Supp.2d 1158

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.

Civil Action No. 10–0254–WS–C.

United States District Court, S.D. Alabama, Southern Division.

May 23, 2011.

Catherine M. Wannamaker, Gilbert Broughton Rogers, Atlanta, GA, Michael Senatore, Sierra B. Weaver, Washington, DC, for Plaintiff.Guillermo A. Montero, James D. Gette, Michael D. Thorp, Joanna K. Brinkman, Washington, DC, Gary A. Moore, U.S. Attorney's Office, Mobile, AL, for Defendant.

ORDER

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 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 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 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, 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.

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, 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”).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

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...