Pub. Emps. for Envtl. Responsbility v. S, Civil Action No. 10-1067 (RBW) (DAR)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtREGGIE B. WALTON
PartiesPUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSBILITY, et al., Plaintiffs, v. TOMMY P. BEAUDREU, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. ALLIANCE TO PROTECT NANTUCKET SOUND, et al., Plaintiffs, v. SALLY JEWELL, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. TOWN OF BARNSTABLE, MASSACHUSETTS, Plaintiff, v. SALLY JEWELL, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH) Plaintiff, v. TOMMY P. BEAUDREU, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor.
Decision Date14 March 2014
Docket NumberC/w: Civil Action No. 10-1238,C/w: Civil Action No. 10-1073,C/w: Civil Action No. 10-1079,Civil Action No. 10-1067 (RBW) (DAR)

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSBILITY, et al., Plaintiffs,
v.
TOMMY P. BEAUDREU, et al.,1 Defendants,
CAPE WIND ASSOCIATES, LLC, Intervenor.

ALLIANCE TO PROTECT NANTUCKET SOUND, et al., Plaintiffs,
v.
SALLY JEWELL, et al., Defendants,
CAPE WIND ASSOCIATES, LLC, Intervenor.

TOWN OF BARNSTABLE, MASSACHUSETTS, Plaintiff,
v.
SALLY JEWELL, et al., Defendants,
CAPE WIND ASSOCIATES, LLC, Intervenor.

THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH) Plaintiff,
v.
TOMMY P. BEAUDREU, et al., Defendants,
CAPE WIND ASSOCIATES, LLC, Intervenor.

Civil Action No. 10-1067 (RBW) (DAR)
C/w: Civil Action No. 10-1073
C/w: Civil Action No. 10-1079
C/w: Civil Action No. 10-1238

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SO ORDERED: March 14, 2014


MEMORANDUM OPINION

This consolidated case comprises four sets of interrelated claims concerning several administrative decisions made by federal agencies approving the construction of various aspects of an offshore wind energy project in Nantucket Sound, which is the first project of its kind in the United States. First, the Public Employees for Environmental Responsibility ("PEER"), the Cetacean Society International, the Lower Laguna Madre Foundation, Californians for Renewable Energy, Three Bays Preservation, the Alliance to Protect Nantucket Sound, and several individuals2 (collectively, the "PEER plaintiffs") allege that defendants Tommy

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Beaudreau, the Director of the United States Bureau of Ocean Energy Management ("BOEM");3 Sally Jewell, the Secretary of the United States Department of the Interior; Daniel Ashe, the Director of the United States Fish and Wildlife Service ("FWS"); Penny Pritzker, the Secretary of the United States Department of Commerce; Eileen Sobeck, the Assistant Administrator of the National Marine Fisheries Service ("NMFS"); and Lieutenant General Thomas P. Bostick, the United States Army Chief of Engineers and Commanding General of the United States Army Corps of Engineers ("Corps of Engineers" or "Corps") have violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 (2006); the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (2006), the Migratory Bird Treaty Act, 16 U.S.C. § 703 (2006); and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h (2006). Second Amended Complaint for Declaratory and Injunctive Relief, ECF No. 47, ("PEER Compl.") ¶¶ 1, 97-111. Second, the Town of Barnstable, Massachusetts, alleges that Secretary Jewell; the United States Department of the Interior; the BOEM; Director Beaudreau; Admiral Robert J. Papp, Jr., the Commandant of the United States Coast Guard; the United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers have violated the APA; the Outer Continental Shelf Lands Act ("Shelf Lands Act"), as amended, 43 U.S.C. §§ 1331-1356a (2012); the NEPA; the Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241, 120 Stat. 516; the

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Clean Water Act, 33 U.S.C. § 1344 (2006); and the Rivers and Harbors Act, 33 U.S.C. § 403 (2006). First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 68 ("Barnstable Compl.") ¶¶ 1, 175-225. Third, the Alliance to Protect Nantucket Sound and several individuals4 (collectively, the "Alliance plaintiffs") allege that Secretary Jewell; the United States Department of the Interior; Director Beaudreau; the BOEM; Admiral Papp; the United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers violated the APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594, 744-46 (codified at 43 U.S.C. § 1337(p) (2006)) (amending the Shelf Lands Act); the Coast Guard and Maritime Transportation Act of 2006; the National Historic Preservation Act ("Preservation Act"), 16 U.S.C. § 470f (2006); the Clean Water Act; and the Rivers and Harbors Act. First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 69 ("Alliance Compl.") ¶¶ 1, 151-93. Finally, the Wampanoag Tribe of Gay Head (Aquinnah) alleges that Director Beaudreau; Secretary Jewell; and the BOEM5 violated the Preservation Act; the NEPA; and the APA. Complaint for Declaratory and Injunctive Relief, 11-cv-1238, ECF No. 1 ("Wampanoag Compl.") ¶¶ 1, 127-43.

Currently before the Court are three sets of cross-motions for summary judgment, as well as the Plaintiffs' Rule 56(e) Motion for Discovery Necessary to Explain Defendants' Citation to Documents Withheld as "Deliberative" and Other Extra-Record Assertions or, in the Alternative,

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to Strike, ECF No. 316 ("Pls.' 56(e) Mot."). Upon careful consideration of the parties' submissions6 and the several voluminous administrative records in this case, the Court grants

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partial summary judgment to each party as outlined below, and the Court further denies the plaintiffs' Rule 56(e) motion for additional discovery or, in the alternative, to strike.

I. BACKGROUND

An initial overview of several statutes is necessary to provide context for the plaintiffs' claims in this litigation.

A. Statutory Background

1. The ESA

The ESA is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Congress designed the ESA "to save from extinction species that the Secretary of the Interior designates as endangered or threatened." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 690 (1995). With the exception of certain insects, the ESA defines an "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is defined as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The ESA generally prohibits the taking of an endangered or threatened species, id. § 1538(a)(1)(B)-(C), and the term "take" is defined as

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"to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct," id. § 1532(19). However, the Secretary of the Interior or the Secretary of Commerce "may permit," under certain circumstances, "any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. § 1539(a)(1)(B).

The Secretary of the Interior and the Secretary of Commerce have delegated the authority to administer the ESA to the FWS and the NMFS. 50 C.F.R. § 402.01(b). Section 7(a)(2) of the ESA mandates that

[e]ach Federal agency shall, in consultation with and with the assistance of the [FWS or NMFS, as appropriate], 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 . . . .

16 U.S.C. § 1536(a)(2). In carrying out their duties under § 7, agencies "shall use the best scientific and commercial data available." Id.

An agency action "jeopardize[s] the continued existence" of a species where the action "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. Accordingly, "[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species," and "[i]f such a determination is made, formal consultation" with the FWS and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the FWS and/or the NMFS to review the proposed agency action and prepare a "biological opinion" that includes "[a] detailed discussion of the effects of the action on listed species," and also render an "opinion on whether the action is likely to jeopardize the continued existence of a listed species." Id. §§ 402.14(h)(2)-(3). Where the biological opinion concludes that an agency

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action may result in the incidental taking of a listed species, the FWS and/or NMFS must "provide with the biological opinion a statement concerning incidental take that" specifies both "the amount or extent[] of such incidental taking on the species," as well as "terms and conditions . . . that must be complied with by the Federal agency or any applicant to implement" certain specified "reasonable and prudent measures" designed to minimize the impact of the incidental taking. Id. §§ 402.14(i)(1)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such "[r]easonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes." Id. § 402.14(i)(2).

2. The Migratory Bird Treaty Act

The Migratory Bird Treaty Act, unless otherwise "permitted by regulations," makes it "unlawful at any time, by any means or in any manner, to . . . take[7] . . . kill, [or] attempt to take . . . or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . included in" certain bilateral treaties8 adopted for the protection of migratory birds. 16 U.S.C. § 703(a). Violations of the Act can result in criminal sanctions. See id. §§ 706-707. However, "the Secretary of the Interior is authorized," upon consideration of certain factors, "to determine when, to what extent, if at all, and by what means . . . to allow . . . [the] taking . . . [or] killing" of protected migratory birds. Id. § 704(a); see also 50 C.F.R. § 21.11 (addressing the requirement for permits to, among other things, take or kill migratory birds). The FWS, which implements and enforces the

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Migratory Bird Treaty Act on behalf of the Secretary of the Interior, 50 C.F.R. § 10.1, maintains a list of protected migratory birds as outlined in the...

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