Case 2:21-cv-00778-TAD-KK Document 145 Filed 07/22/21 Page 1 of 12 PageID #: 2193
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF LOUISIANA
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`STATE OF LOUISIANA, ET AL.
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`Plaintiffs,
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`v.
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`JOSEPH R. BIDEN, JR., in his official capacity
`as President of the United States, ET AL.
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`Defendants.
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`REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
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`Case No. 2:21-cv-00778
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`Honorable Judge Terry A. Doughty
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`Magistrate Judge Kathleen Kay
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`INTRODUCTION
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`Based on potential actions that Plaintiffs fear the Department of the Interior might take on
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`federal oil and gas leasing, Plaintiffs hastily challenged an Executive Order, Interior’s general
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`management of the onshore and offshore oil and gas leasing programs, and interim actions. In so
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`doing, Plaintiffs ignored the President’s authority as head of the Executive Branch to direct
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`executive officers and ignored the statutory requirement that Plaintiffs must give Interior 60
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`days’ notice before filing suit. In their Opposition to Defendants’ Motion to Dismiss, Plaintiffs
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`ask the Court to ignore these things, too. Instead, Plaintiffs’ Complaint should be dismissed.
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`In particular Counts IX (Outer Continental Shelf Lands Act citizen suit) and X (ultra
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`vires) should be dismissed at this stage. In so doing, the Court need not upset its order granting
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`Plaintiffs’ Motion for a Preliminary Injunction, which Motion was based only on APA counts.
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`ARGUMENT
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`I.
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`The Court’s Ruling Entering a Preliminary Injunction Is Not the Law of the Case
`and Does Not Have Precedential Value
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`Plaintiffs repeatedly assert that the Court has already decided various issues in the
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`preliminary injunction phase of this case. See, e.g., Opposition (Opp’n), 15, 17, 18, Doc. 142.
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`1
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`Preliminary injunction rulings, however, are not binding law in a case, and only preserve the
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`relative positions of the parties. See, e.g., Jonibach Mgmt. Tr. v. Wartburg Enterprises, Inc., 750
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`F.3d 486, 491 (5th Cir. 2014) (“Thus, ‘the findings of fact and conclusions of law made by a
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`court granting a preliminary injunction are not binding at trial on the merits.’ As such, the district
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`court’s finding during the preliminary injunction phase of the proceeding . . . may be challenged
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`at a later stage of the proceedings.”) (citation omitted); Meineke Disc. Muffler v. Jaynes, 999
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`F.2d 120, 122 n.3 (5th Cir. 1993) (“This argument presupposes that the court's findings and
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`conclusions after an abbreviated hearing on a preliminary injunction are binding as the law of the
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`case. Such an argument is incorrect.”) (citation omitted); Mylett v. Jeane, 910 F.2d 296, 299 (5th
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`Cir. 1990) (“At the preliminary injunction phase the court found that [plaintiff] had failed to
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`prove he was likely to succeed. This is not a finding that he could not succeed. [Plaintiff’s]
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`failure to convince the judge that he was likely to succeed did not per se preclude a jury from
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`finding in his favor on the same or similar evidence.”). Plaintiffs thus cannot avoid addressing
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`the merits of Defendants’ arguments by citing the preliminary injunction ruling.
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`Plaintiffs’ attempt to rest on this Court’s findings and conclusions to date is especially
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`inappropriate because issues pertaining to Plaintiffs’ ultra vires count and Plaintiffs’ failure to
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`provide notice 60 days before filing an OCSLA citizen suit claim were not fully presented and
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`briefed at the preliminary injunction stage. Rather, Plaintiffs’ Motion for a Preliminary
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`Injunction relied on and briefed only APA claims. See Mot. for Prelim. Inj., 12-24, Doc. No. 3-1.
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`Defendants respectfully maintain their positions and arguments that Plaintiffs’ APA claims fail,
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`including for purposes of potentially appealing the preliminary injunction order, but focus this
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`reply on Counts IX and X. As stated, this is the first time Counts IX and X have been fully
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`briefed, and those counts can be dismissed without disturbing the preliminary injunction order.
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`2
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`II.
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`Plaintiffs’ Own Authority Establishes that Count X Is Not a “Quintessential” Ultra
`Vires Claim, and Plaintiffs’ Argument that Executive Order 14,008 Is Invalid
`Ignores Its Language and Misrepresents Its Directive
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`Plaintiffs do not dispute that the President has authority to direct Executive Branch
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`officers, but nonetheless oppose dismissal of their ultra vires claim. They primarily rely on a
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`court’s authority to review direct actions of a President as ultra vires. But that authority is
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`irrelevant here because Executive Order 14,008 is not self-executing and requires
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`implementation by the Secretary. Plaintiffs also ignore the plain language of the Executive Order
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`that directs the Secretary to implement a pause only where she can lawfully do so. Plaintiffs
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`invent their own interpretation of the Executive Order and argue the implementation of that
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`interpretation would be illegal, but the order is clearly valid when all of its language is
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`considered. Accordingly, the Court should dismiss Plaintiffs’ ultra vires claim, and dismiss the
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`President as a party.
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`Count X is different in kind from “a quintessential ultra vires claim,” as demonstrated by
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`the cases Plaintiffs provide. Opp’n 14. Plaintiffs cite Ancient Coin Collectors Guild v. United
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`States Customs & Border Protection, Department of Homeland Security, 801 F. Supp. 2d 383,
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`402 (D. Md. 2011), aff’d, 698 F.3d 171 (4th Cir. 2012), to define when ultra vires review is
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`available. Opp’n 13-14. But there, the agency was exercising a delegation of Presidential
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`authority, not authority granted to the agency by Congress. Ancient Coin, 801 F. Supp. 2d at 402.
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`Thus, the court held it was essentially reviewing the direct actions of the President, which it
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`could not do under the APA; ultra vires review was the court’s only option. Id. at 404.1 Here,
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`Indeed, most of the cases Plaintiffs cite are irrelevant because they involve challenges to
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`self-executing Presidential actions. See Rosebud Sioux Tribe v. Trump, 428 F. Supp. 3d 282, 288
`(D. Mont. 2019) (reviewing Presidential permit directly issued “pursuant to the ‘authority vested
`in . . . [the] President’”); Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1137 (D.C. Cir.
`2002) (reviewing President’s direct designation of a national monument pursuant to “his
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`3
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`because the order is not self-executing, in addition to being explicitly limited to directing the
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`Secretary to exercise authority to the extent available under relevant statutes, any implementation
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`will require agency action, and any final agency action will be subject to the APA framework for
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`review.
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`Plaintiffs’ reliance on Associated Builders & Contractors of Southeast Texas v. Rung,
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`2016 WL 8188655, at *5 (E.D. Tex. Oct 24, 2016), is also misplaced, as that case does not even
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`address an ultra vires claim or include the President as a party. See Opp’n 13-14. It instead
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`reviewed the implementation of an Executive Order as a challenge to agency action. Associated
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`Builders, 2016 WL 8188655, at *5.2
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`Plaintiffs’ effort to dismiss relevant precedent falls flat because the operative language
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`here mirrors the order in Building & Construction Trades Department v. Allbaugh, 295 F.3d 28,
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`32 (D.C. Cir. 2002), and courts cannot ignore the language of an Executive Order, see Common
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`Cause v. Trump, 506 F. Supp. 3d 39, 47 (D.D.C. 2020). Plaintiffs assert, “unlike the executive
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`order at issue [in Albaugh], Section 208 ‘unambiguously commands action.’” Opp’n 14 n.7. But
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`Plaintiffs do not and cannot show any significant difference between the orders. Both start by
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`directing the agency to take action only “to the extent consistent with” or “permitted by”
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`applicable law, then use “shall” to direct what the agency must do if legally allowed. Compare
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`delegated powers under the Antiquities Act”); League of Conservation Voters v. Trump, 303 F.
`Supp. 3d 985, 991 (D. Alaska 2018) (reviewing President’s reversal of previous Presidential
`withdrawal); see also City of Dallas, Tex. v. Hall, No. 3:07-cv-0060, 2007 WL 3257188, at *15
`(N.D. Tex. Oct. 29, 2007) (granting leave to add ultra vires claim against agency officers, not
`against the President, for actions allegedly in violation of statutory authority).
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`Another case that Plaintiffs cite to support the assertion that their claim is “a
`quintessential ultra vires claim of the type reviewed by courts across the nation,” also did not
`include an ultra vires claim. Opp’n 14 (citing W. Watersheds Project v. Bureau of Land Mgmt,
`629 F. Supp. 2d 951, 959 (D. Ariz. 2009). In Western Watersheds Project v. Bureau of Land
`Management, the plaintiff explicitly said it was “not challenging ‘action by the President . . .’”
`and was only challenging agency action under the APA. 629 F. Supp. 2d at 959.
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`4
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`Case 2:21-cv-00778-TAD-KK Document 145 Filed 07/22/21 Page 5 of 12 PageID #: 2197
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`Executive Order 14,008 § 208, with Executive Order 13,202 §§ 1, 3. Nor do Plaintiffs explain
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`how their allegation that the Secretary has implemented a “blanket ‘pause’ on oil and gas lease
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`sales,” Opp’n 16, gives Plaintiffs license to “ignore” “unambiguous qualifiers imposing
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`lawfulness.” Common Cause, 506 F. Supp. 3d at 47. Subsequent agency actions cannot render
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`ultra vires an Executive Order that was valid when issued, and again: any final agency action
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`implementing the Executive Order is itself subject to the APA’s review framework.
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`Plaintiffs’ cases rejecting savings clauses are distinguishable because in those cases the
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`courts found that the clauses, if credited, would render the challenged Executive Orders to be
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`“without any real meaning.” City and Cnty. of S.F. v. Trump, 897 F.3d 1225, 1238 (9th Cir.
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`2018). Not so here. The purpose and meaning of Section 208 are to direct a comprehensive
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`review and reconsideration of the federal oil and gas leasing program, and to keep land
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`unencumbered wherever the law allows so that the report can be put to maximum use when
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`complete.3 This could be achieved through pauses other than “an across the board moratorium on
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`all oil and gas lease sales.” Opp’n 15. In the OCSLA context, for example, even if Interior
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`believed it was legally required to proceed with Lease Sale 257 (which Defendants respectfully
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`maintain it was not), and even if Interior believed it is also required to hold all lease sales as
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`proposed in the Five Year Program (which it is not), Interior could “pause” by holding lease
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`The first sentence of Section 208 provides, “To the extent consistent with applicable law,
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`the Secretary of the Interior shall pause new oil and natural gas leases on public lands or in
`offshore waters pending completion of a comprehensive review and reconsideration of Federal
`oil and gas permitting and leasing practices in light of the Secretary of the Interior’s broad
`stewardship responsibilities over the public lands and in offshore waters, including potential
`climate and other impacts associated with oil and gas activities on public lands or in offshore
`waters.” Executive Order 14,008 § 208. Plaintiffs assert the offshore sale deferrals here are
`different from past deferrals because those occurred in response to “specific crises or court
`holdings.” Opp’n 16 n.8. Here, the identified crisis is climate change. See generally, Executive
`Order 14,008 (“Tackling the Climate Crisis at Home and Abroad”).
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`sales at the latest time proposed in the Program, such as scheduling Gulf of Mexico Lease Sale
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`259 for December 2021. Since the Five Year Program proposes only the years in which lease
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`sales can occur—not days or even months—scheduling sales late in the year could not be a
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`deviation from the Five Year Program,4 and would further Executive Order 14,008’s goal of
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`keeping land unencumbered pending completion of the comprehensive review.5 Thus, the pause
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`directed by Executive Order 14,008 can be given effect “consistent with applicable law” even if,
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`“[i]n th[e] Court’s opinion, pausing, stopping and/or cancelling lease sales scheduled in OCSLA
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`Five-Year Plan would be significant revisions of the plan.” Opp’n 16 (quoting Doc. 139 at 39).
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`The Court need not go further, and should dismiss Count X on these bases alone. But it is
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`also true that stopping, or even cancelling lease sales scheduled in a five year program would not
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`necessarily amount to a significant revision to the program within the meaning of 43 U.S.C. §
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`1344. As an initial matter, Interior has long interpreted OCSLA as providing the Secretary
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`“considerable discretion to determine whether the deletion, delay or advancement of sales or
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`milestones within an approved 5-year program” requires BOEM to follow the five year program
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`approval process found in 43 U.S.C. § 1344. 88 Interior Dec. 20, 23 (Jan. 5, 1981). Consistent
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`with this understanding, Interior has regularly delayed or cancelled sales without following the
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`process in § 1344. See Defs.’ Mem. 15.6 And every court to address the issue has recognized
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`Indeed, because the Five Year Program provides only the years in which offshore lease
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`sales are proposed to occur, Interior had not deviated from the Five Year Program at the time
`Plaintiffs filed the Complaint, and still has not deviated from the Program.
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`In addition to the Secretary’s authority to defer or cancel sales in offshore waters,
`Defendants’ Motion to Dismiss also laid out circumstances where the Secretary could do so on
`federal public lands. Mem. in Support of Defs.’ Mot. to Dismiss (Defs.’ Mem.) 16, Doc. 128-1.
`Plaintiffs do not make any specific arguments in opposition.
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`Plaintiffs dismiss the significance of consistent past practice, calling it an “assertion that
`the Executive Branch has acted lawlessly in the past.” Opp’n 16 n.8. But the Fifth Circuit has
`considered consistent past practice as support that an agency’s interpretation of a statute is
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`Interior need not follow the five year program approval process in order to defer or cancel a lease
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`sale. See Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 483 (D.C. Cir.
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`2009) (recognizing “the completion of the first stage of a leasing program [adopting a Five Year
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`Program] . . . does not require any action,” thus Endangered Species Act claim was not ripe at
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`program approval stage because a program that does not require any action cannot cause any
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`harm); Blanco v. Burton, No. 06-cv-3813, 2006 WL 2366046, at *5 (E.D. La. Aug. 14, 2006)
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`(ruling Louisiana pled a prima facia case that Interior violated OCSLA by not accepting
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`Louisiana’s request to postpone Gulf of Mexico Lease Sale 200). Indeed, Plaintiffs’ position here
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`contradicts Louisiana’s position in a past suit against Interior.
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`Louisiana has previously taken the position in federal court proceedings that the
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`Secretary has authority to postpone lease sales proposed in a five year program without
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`following the full process to amend a program, including the authority to postpone a sale until
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`after the program expires. See Blanco, 2006 WL 2366046, at *5. Following hurricanes Katrina
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`and Rita, Louisiana commented on Interior’s notice proposing to hold the last potential lease sale
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`in the then-effective 2002-2007 five year program, Lease Sale 200. Id. “[T]he Governor
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`recommended that Lease Sale 200 be postponed and included in the 2007-2012 program [then]
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`being prepared by [Interior] . . . [which] would allow [Interior] the opportunity to meaningfully
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`assess the impact of [Outer Continental Shelf] activities in light of the devastation wreaked on
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`the Gulf Coast as a result of the 2005 hurricanes.” Id. Louisiana asserted Interior had “failed,
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`perhaps in the simple rush to stay on the schedule identified in the [five year program], to take
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`entitled to deference. See Mesa Operating Ltd. P’ship v. U.S. Dep’t of Interior, 931 F.2d 318,
`322 (5th Cir. 1991) (recognizing “because the determination at issue here involved the
`interpretation of a statute, the question for this Court is ‘whether the agency’s interpretation is
`based on a permissible construction of the statute’” and considering consistent past practice).
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`the necessary steps with which it is charged under [federal law] to ensure for the protection of
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`Louisiana’s coastal zone and the infrastructure.” Id. at *4. The Eastern District of Louisiana
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`ruled that Louisiana pled a prima facia case that Interior violated OCSLA in denying Louisiana’s
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`request to postpone Lease Sale 200.7 Louisiana’s reversal of its position not only ignores the law
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`as long recognized by Louisiana, Interior, the Eastern District of Louisiana, and other courts, it is
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`also short sighted. Louisiana may think the climate crisis is not a good reason to defer lease sales
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`while undertaking a comprehensive review, but Louisiana could again find itself in a position
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`where it believes further review is appropriate and may want to again call on Interior to defer
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`sales proposed in a five year program.
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`For all these reasons, Defendants respectfully request the Court dismiss Count X of
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`Plaintiffs’ Complaint and dismiss the President as a party.
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`III.
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`Plaintiffs’ Claimed Harms are Not Sufficiently “Immediate” to Excuse OCSLA’s
`Statutory 60-day-notice Requirement, or Are Purely Procedural
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`Plaintiffs assert three alleged “immediate” harms to excuse them from the statutory
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`requirement that they provide notice sixty days before filing suit: (1) delay in receiving ground
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`rents, bonuses, and royalties, (2) their claimed “statutorily vested right to be consulted . . .
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`regarding Lease Sale 257 and to comment about Lease Sale 258,” and (3) an alleged “threat to
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`‘public health and safety’ [caused] by depriving environmental restoration funds of their major
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`sources of funding.” Opp’n 17. None of these withstand scrutiny.
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`Like the process leading up to the scheduling of Lease Sale 200, in which Louisiana
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`submitted a comment letter urging Interior to delay that lease sale, Louisiana also had notice and
`opportunity to submit a comment letter regarding the timing of Lease Sale 257. Unlike the
`process leading up to the scheduling of Lease Sale 200, Louisiana did not submit any comment
`letter regarding the timing of Lease Sale 257. Accordingly, Louisiana cannot plausibly claim a
`violation of the same OCSLA provision in this case.
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`The first and third assertions, that Plaintiffs are immediately harmed by delayed receipt of
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`funds, are belied by Plaintiffs’ concessions at the preliminary injunction hearing that they do not
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`immediately receive funds from new federal leases. Plaintiffs now claim the delayed-funds harm
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`“is immediate—every month that passes is a month without ground rents; a month without
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`bonuses; and a month longer to obtain royalties.” Id. But in the preliminary injunction hearing,
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`Plaintiffs acknowledged this is not so. Rather, the federal government does not disburse funds,
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`and the states do not receive funds, until the next calendar year. This next-year timing is
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`significant since Plaintiffs allege they sent their notice of intent to sue on March 21, Compl. ¶
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`173. Had Plaintiffs waited to sue until May 21, as required by OCSLA, they would still be more
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`than half a year away from potentially receiving funds from new leases. This is not “immediate.”
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`The second assertion, that Plaintiffs suffer immediate harm because they were not
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`consulted about the rescission of Lease Sale 257 and could not comment on Lease Sale 258, is
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`also incompatible with the notice requirement in the statute. For example, in Fisheries Survival
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`Fund v. Jewell, No. 16-CV-2409 (TSC), 2018 WL 4705795, (D.D.C. Sept. 30, 2018),8 the
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`plaintiffs claimed BOEM failed to properly consider certain interests at the site selection and
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`lease sale stages and that those interests would be harmed by a scheduled lease sale, including by
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`fixing the boundaries of the challenged development area. Id. Plaintiffs argued the harm they
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`sought to redress was “immediate” because the lease sale was scheduled to occur in 45 days (less
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`than the 60 days required by OCSLA’s notice provision). Id. Although the court found plaintiffs
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`had standing—and thus a right to advance the asserted interests—plaintiffs’ injuries did not
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`excuse them from OCSLA’s notice requirement. Id. at *11. The alleged procedural injury here,
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`8 aff’d sub nom. Fisheries Survival Fund v. Haaland, No. 20-5094, 2021 WL 2206426 (D.C. Cir.
`May 20, 2021).
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`although framed as Plaintiffs’ right to comment and consult, is no different. Plaintiffs’
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`Opposition ignores Fisheries Survival Fund entirely.
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`Plaintiffs also assert this Court’s finding of irreparable harm at the preliminary injunction
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`stage demonstrates Plaintiffs have “met their burden to allege a violation that ‘would
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`immediately affect a legal interest of the plaintiff.” Opp’n 17. But these are distinct legal
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`standards and the Court must consider different time periods. Whereas OCSLA only excuses a
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`plaintiff from waiting 60 days to file suit when a violation would immediately affect a legal
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`interest of the plaintiff, a court considering a preliminary injunction must consider whether
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`“irreparable injury will occur during the pendency of the litigation.” Sabre Indus. Inc. v.
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`McLaurin, No. 5:19-cv-00934, 2019 WL 3933798, at *6 (W.D. La. Aug. 19, 2019) (emphasis
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`added) (internal quotations omitted). Although this litigation could stretch into next year before
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`final resolution, OCSLA’s 60-day notice provision required that Plaintiff wait only until May of
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`this year to sue. Indeed, after filing suit Plaintiffs waited the better part of that 60-day period to
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`file and serve their preliminary injunction motion. Specifically, Plaintiffs waited ten days to
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`move for a preliminary injunction, until March 31, see Doc. No. 3. Then, after the Court ordered
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`that deadlines would follow Plaintiffs’ proof of service on all Defendants, Doc. No. 7, Plaintiffs
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`still had not filed proof by the time Defendants appeared in the case on April 28, see Doc. No.
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`85. In sum, none of Plaintiffs’ arguments satisfy their burden of showing that the “alleged
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`violation constitutes an imminent threat to the public health or safety or would immediately
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`affect a legal interest of the plaintiff.” See 43 U.S.C. 1349(a)(3).
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`Because Plaintiffs did not follow OCSLA’s statutory requirement that they provide notice
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`60 days before filing suit, Count IX of Plaintiffs’ Complaint should be dismissed.
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`CONCLUSION
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`Wherefore, Defendants respectfully request the Court dismiss Plaintiffs’ Complaint, and
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`note the Court can dismiss Counts IX and X without disturbing the preliminary injunction.
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`Respectfully submitted this 22nd day of July, 2021.
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`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`Environment & Natural Resources Division
`U.S. Department of Justice
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`/s/ Thomas W. Ports, Jr.
`THOMAS W. PORTS, JR.
`MICHAEL S. SAWYER
`Trial Attorneys, Natural Resources Section
`Ben Franklin Station, P.O. Box 7611
`Washington, D.C. 20044-7611
`Telephone:
`(202) 305-5492 (Ports)
`(202) 514-5273 (Sawyer)
`(202) 305-0506
`Thomas.Ports.Jr@usdoj.gov
`Michael.Sawyer@usdoj.gov
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`Fax:
`Email:
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`Counsel for Defendants
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on July 22, 2021, I filed the foregoing document
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`electronically through the CM/ECF system, which caused all parties or counsel of record to
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`be served by electronic means, as more fully reflected on the Notice of Electronic Filing.
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`/s/ Thomas W. Ports, Jr.
` Thomas W. Ports, Jr.
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`12
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