Donjon-Smit, LLC v. Schultz
| Citation | 449 F.Supp.3d 1345 |
| Decision Date | 24 March 2020 |
| Docket Number | No. 2:20-CV-011,2:20-CV-011 |
| Parties | DONJON-SMIT, LLC, Plaintiff, v. Admiral Karl L. SCHULTZ, Captain John W. Reed, Commander Matthew J. Baer, and Commander Norm C. Witt, in their individual capacity, and in their official capacity as Officers of the United States Coast Guard, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Clifford Bowie Husted, Pro Hac Vice, W. Garney Griggs, Pro Hac Vice, Clark Hill PLC, Houston, TX, Joseph R. Odachowski, Peter H. Schmidt, II, Taylor, Odachowski, Sperry & Crossland, LLC, St. Simons Island, GA, for Plaintiff.
Bradford Collins Patrick, U.S. Attorney's Office, Savannah, GA, Martha Mann, Sydney Menees, US Department of Justice, Washington, DC, for Defendants.
Before the Court is Plaintiff Donjon-SMIT, LLC's ("DJ-S") Verified Motion for Injunctive Relief. Dkt. No. 6. In its Amended Complaint, Plaintiff seeks entry of a temporary restraining order (TRO), preliminary injunction, and permanent injunction. Dkt. No. 56 ¶¶ 29-32. The Court denied Plaintiff's TRO on February 18, 2020. See Hearing Tr. 6:17-18; Dkt. No. 12. This Order addresses Plaintiff's motion insofar as it requests a preliminary injunction enjoining Commander Witt's approval of GL NV24 Shipping, Inc.'s (the "Owner")1 request for a deviation from its Non-Tank Vessel Response Plan ("NTVRP") for the purpose of adding T&T Salvage, LLC ("T&T") as a salvage and marine firefighting ("SMFF") resource provider. Dkt. No. 20-1 at 63.
Plaintiff's motion for injunctive relief—in so far as it requests a preliminary injunction—is ripe for review. After reading the parties' respective pleadings, motions, briefs, and holding an evidentiary hearing on February 25, 2020, listening to Plaintiff's witnesses, watching Commander Witt's deposition, ordering additional limited discovery, and reviewing the entirety of the administrative record, Plaintiff's request for a preliminary injunction is DENIED .
It is important to understand the Court's role in ruling on this motion. "The court's role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision." Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (internal quotation marks omitted).
On February 13, 2020, Plaintiff filed its Original Complaint. Dkt. No. 1. Contemporaneously, Plaintiff filed its Motion for Injunctive Relief. Dkt. No. 6. That motion has been fully briefed by the parties. Dkt. No. 20 (Defendants' Response); Dkt. No. 28 (Plaintiff's Reply). Plaintiff amended the Complaint on March 10, 2020. Dkt. No. 56.
The Court scheduled a hearing on Plaintiff's motion for injunctive relief for February 19, 2020. Dkt. No. 9. Plaintiff moved the Court to continue that hearing. Dkt. No. 11. The Court granted that motion and continued the hearing until February 25, 2020. Dkt. No. 12. Given the time-sensitive nature of injunctive relief, the Court issued an Order on February 21, 2020, directing each party to answer forty-five initial questions posed by the Court in writing by February 24, 2020. Dkt. No. 19. The Court specifically ordered the parties to indicate what witnesses or documents supported each of their responses. Id. The parties filed timely responses containing their respective answers. Dkt. No. 22 (Defendants' Responses); Dkt. No. 26 (Plaintiff's responses).
On February 25, 2020, the Court held a hearing that lasted more than five hours. Dkt. No. 32. During that hearing, Plaintiff called four sworn witnesses: Douglas Martin, the President and General Manager of SMIT Salvage Americas, Inc. ("SMIT"); Christiaan van der Jagt, an Operations Director for SMIT; Timothy Williamson, the General Manager of Donjon-SMIT, LLC; and Paul Hankins, the Vice President of Donjon Marine Co., Inc. ("DJ-M"). Id. Plaintiff also introduced exhibits for the Court to consider. Id. Neither party proffered expert testimony regarding the alleged environmental danger associated with a Large Section Demolition ("LSD") methodology. Id.
On February 26, 2020, Plaintiff filed a motion regarding discovery, asking the Court to order Defendants to produce the full Administrative Record. Dkt. No. 31. The following day, the Court ordered Defendants to produce the whole administrative record by March 3, 2020. Dkt. No. 33. On that date, Defendants produced the administrative record. Dkt. No. 46. On February 28, 2020, both parties timely filed their respective proposed findings of fact and conclusions of law. Dkt. No. 36 (for Defendants); Dkt. Nos. 37-39 (for Plaintiff). On March 2, 2020, Plaintiff submitted a stipulation to some of the facts contained in Defendants' findings of fact and conclusions of law. Dkt. No. 40.
Also on March 2, 2020, the Court held a telephonic status conference with the parties. Dkt. No. 45. During that conference, the Court ordered that Commander Witt be deposed on or before March 9, 2020. Dkt. No. 44. The Court also ordered that the parties file any additional proposed findings of fact and conclusions of law by March 11, 2020. Id. On March 4, 2020, Plaintiff moved this Court to order Commander Witt to produce certain records for Plaintiff's use at his deposition. Dkt. No. 47. On March 6, 2020, the Court denied that motion. Dkt. No. 53. Commander Witt was deposed as scheduled on March 9, 2020. See Dkt. No. 55. Commander Witt gave almost eight hours of sworn testimony. Dkt. Nos. 55-1, 58.
On March 11, 2020, both parties submitted additional proposed findings of fact and conclusions of law. Dkt. No. 60 (for Plaintiff); Dkt. No. 61 (for Defendants). It should also be noted that Defendants file weekly status updates on salvage of the M/V GOLDEN RAY. Dkt. Nos. 43, 59, 79.
In the early morning hours of September 8, 2019, the M/V GOLDEN RAY capsized in the St. Simons Sound in between Saint Simons Island and Jekyll Island, off the Coast of Georgia. Admin. R. at 716 (Invitation to Tender). Currently, the 200-meter-long M/V GOLDEN RAY is listing at 110 degrees to its portside on a northern sandbar just beyond the only navigable shipping channel to the Port of Brunswick—the second largest Roll-On Roll-Off ("RoRo") Port by tonnage in the United States of America. Id. at 716-18. Approximately half of its 35.4 meter beam is above the water. See id. at 716. It is the largest cargo shipwreck in U.S. coastal waters since Exxon Valdez. Dkt. No. 56 ¶ 10. At the time of the incident, the M/V GOLDEN RAY carried twenty-three crew members, one harbor pilot, approximately 4,200 automobiles, and an estimated 380,000 gallons of oil. Plaintiff's Hearing Exhibit ("Pl. Ex.") 24 (Documents sent to Commander Witt by Plaintiff).
The M/V GOLDENRAY is grounded in an environmentally sensitive area that includes prime shrimping grounds and Bird Island—a significant roosting area for migratory birds. Admin. R. at 129 (Decision Memo). The longer the vessel remains in its grounded position in the Saint Simons Sound, the more time the environment (including the marine aquatic life specified) is exposed to the risks the wreck presents. Indeed, the longer the M/V GOLDEN RAY is exposed to the sound's tidal influences the more oil and other contaminants could be released from the vessel. See Hearing Tr. 79:19-22 (Martin Testimony).
Given the size of the M/V GOLDEN RAY and the amount of oil onboard, the United States Coast Guard determined that "there may be an imminent and substantial threat to the public health or welfare or the environment because of an actual or substantial discharge/release of oil or designated hazardous substance from the vessel." Admin. R. at 94 (Administrative Order: 01-19). As such, the incident triggered the statutory and regulatory demands of the Oil Pollution Act of 1990. Id.
The Oil Pollution Act of 1990 ("OPA 90"), 33 U.S.C. § 2701 - 2762, was enacted in response to the 1989 Exxon Valdez oil spill in Alaska's Prince William Sound. Specifically, OPA 90 amended Section 311 of the Clean Water Act, 33 U.S.C. § 1321, to "provide a framework for preventing and responding to potential oil spills." Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1215 (9th Cir. 2015) (citing 33 U.S.C. § 1321(b) ); see also Water Quality Ins. Syndicate v. United States, 225 F. Supp. 3d 41, 48 (D.D.C. 2016) () (internal quotation marks omitted); 2 Admiralty & Mar. Law § 18:3 (6th ed.) (same).
Under OPA 90, the President (acting through the Coast Guard) is charged with preparing and publishing a National Contingency Plan ("NCP"). 33 U.S.C. § 1321(d). The NCP establishes "efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges." Jewell, 788 F.3d at 1215. The NCP designates a federal officer to be the Federal On-Scene Coordinator ("FOSC") for each area of the country that requires an Area Contingency Plan ("ACP") to be created and implemented. 33 U.S.C. § 1321(d)(2)(K), (j). The FOSC, a Coast Guard official, directs spill removal and clean-up efforts and coordinates the efforts of federal, state, and local response teams. 33 U.S.C. § 1321(j)(4)(B)(ii). He has the authority to increase the speed and effectiveness of the response and may take additional steps to mitigate the environmental effects of the spill. 33 U.S.C. 1321 (c)(3)(B) ; 33 C.F.R. § 155.4032(a). If necessary, he can federalize the response. See, e.g., Witt Depo. 62:13-15.
Regulations promulgated by the Coast Guard to enforce OPA 90 require each owner of a non-tank vessel carrying oil to have a Non-Tank Vessel Response Plan ("NTVRP") in place in the event of a "worst case...
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