Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 1 of 13 PageID #: 2224
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF LOUISIANA
`
`
`
`
`
`THE STATE OF LOUISIANA,
`By and through its Attorney General, JEFF
`LANDRY, et al.,
`
`PLAINTIFFS,
`
`
`v.
`
`JOSEPH R. BIDEN, JR., in his official capacity
`as President of the United States; et al.,
`DEFENDANTS.
`
`
`
`
`
`
`
`
`
`
`CIVIL ACTION NO. 2:21-cv-778-TAD-KK
`
`MEMORANDUM IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE AND
`TO COMPEL COMPLIANCE WITH PRELIMINARY INJUNCTION
`
`“Courts for centuries have possessed the inherent power to enforce their lawful decrees
`
`through the use of coercive sanctions in civil contempt proceedings.” Scott v. Hunt Oil Co., 398 F.2d
`
`810, 811 (5th Cir. 1968); see also Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (“[T]he underlying
`
`concern that gave rise to the contempt power ... was disobedience to the orders of the Judiciary.”).
`
`To establish a prima facie case of contempt, Plaintiff States must show by clear and convincing
`
`evidence “(1) That a court order is in effect; (2) That the order prescribes or requires certain conduct
`
`by the respondent; and (3) That respondent has performed an act or failed to perform an act in
`
`violation of the court’s order.” NASCO, Inc. v. Calcasieu Television & Radio, Inc., 583 F. Supp. 115, 119
`
`(W.D. La. 1984). Plaintiff States “need not show that the violation was willful.” Id.
`
`The first and second elements cannot be contested here. Defendants have violated the
`
`Court’s June 15 Order by their continued application of the Pause to refuse to hold new onshore
`
`lease sales or Lease Sale 257. Every day that passes without compliance irreparably harms Plaintiff
`
`States. Accordingly, this Court should order Defendants to show cause as to why they should not be
`
`held in contempt for violating the preliminary injunction. It also should order Defendants to comply
`
`with the law and this Court’s injunction by holding Lease Sale 257.
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 2 of 13 PageID #: 2225
`
`I.
`
`Defendants Have Violated This Court’s Preliminary Injunction.
`More than seven weeks ago, after a hearing, this Court granted Plaintiff States’ motion for a
`
`preliminary
`
`injunction. The Court’s Order “enjoined and restrained” Defendants “from
`
`implementing the Pause of new oil and gas leases on public lands or in offshore waters as set forth
`
`in Section 208, Executive Order 14008, 86 Fed. Reg. 7619, 7624-25 (Jan. 27, 2021) and as set forth
`
`in all documents implementing the terms of said Executive Order by said defendants, as to all
`
`eligible lands.” Doc. 140. The Court further ordered that Defendants “shall be enjoined and
`
`restrained from implementing said Pause with respect to Lease Sale 257, Lease Sale 258 and to all
`
`eligible onshore properties.” Id. Finally, the Court ordered that “the scope of th[e] injunction shall
`
`be nationwide.” Id.
`
`BOEM has taken no action whatsoever to hold Lease Sale 257. Instead, it has focused on
`
`wind-related projects that are not mandated by the Five Year Plan, OCSLA, or this Court’s Order.
`
`For instance, on June 17, the Bureau of Ocean Energy Management (BOEM) opened a public
`
`comment period and environment review for a wind project offshore New York and New Jersey.
`
`See Shapiro Decl. Ex. 9. On June 28, BOEM opened an environmental review regarding a wind
`
`project offshore Rhode Island and Massachusetts. See Shapiro Decl. Ex. 10. On July 2, BOEM
`
`opened a public comment period for an environmental impact statement regarding a wind project
`
`offshore Virginia Beach. See Shapiro Decl. Ex. 3. On July 29, BOEM opened a public comment
`
`period for industry input on wind power development offshore California. See Shapiro Decl. Ex. 4.
`
`On July 29, BOEM issued a notice of intent to prepare an environmental impact statement for a
`
`wind project offshore North Carolina. See Shapiro Decl. Ex. 11. BOEM has taken no action,
`
`however, to implement Lease Sale 257 or any other oil and gas lease sale under the Five Year Plan.
`
`
`
`- 2 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 3 of 13 PageID #: 2226
`
`Defendants’ noncompliance with the Court’s order has recently been made plain by public
`
`testimony before Congress. On July 27, 2021,1 Secretary of the Interior Deb Haaland testified before
`
`the Senate Committee on Energy and Natural Resources. At the hearing, the Secretary admitted that
`
`“the Pause is still in place.” See DVD (Doc. 148-1) at 1:00:23. The Secretary also admitted that “the
`
`pause that you’re referring to, that President Biden ordered in his executive order, is, I suppose it’s
`
`in effect.” See id. at 59:43.2 Upon being asked “[w]hat action has the department taken to be in
`
`compliance with the judge’s ruling” and whether “there has been any decisions to reinstate leases,
`
`lease sales” and “specifically ... lease sale 257,” the Secretary refused to give an answer. See id. at 1:01-
`
`11.3
`
`These actions—or inactions—clearly violate this Court’s Order and holding. “A party’s
`
`compliance with a court order cannot be avoided by ‘a literal or hypertechnical reading of an order’,
`
`for it is ‘the spirit and purpose of the injunction, not merely its precise words, that must be obeyed.’”
`
`NASCO, Inc., 583 F. Supp. at 120. The Court ordered that Defendants are “enjoined and restrained
`
`from implementing said Pause with respect to Lease Sale 257.” Doc. 140. Yet the Pause is still very
`
`much in effect with respect to Lease Sale 257. And it is still in effect despite this Court’s specific
`
`finding that there is “no explanation for the postponement of Lease Sale 257 other than reliance on
`
`Executive Order 14008,” which “itself provides no rationale from departing from OCSLA.” Doc.
`
`1 Plaintiff States have submitted this testimony with their Request for Judicial Notice, Doc.
`148. The testimony can be found at https://www.youtube.com/watch?v=-Mz1XWLawFE.
`2 These admissions render incoherent the Secretary’s repeated protestations that the
`Department is complying with the Court’s Order. Cf. NASCO, Inc., 583 F. Supp. at 120
`(“[R]espondents’ conduct flies in the face of their bold assertion of good faith to achieve substantial
`compliance with our Order.”); see also Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019) (“[A] party’s
`subjective belief that she was complying with an order ordinarily will not insulate her from civil
`contempt if that belief was objectively unreasonable.”); Lelsz v. Kavanagh, 673 F. Supp. 828, 839
`(N.D. Tex. 1987) (“Good faith in attempting compliance is not sufficient to avoid contempt; there is
`no intent requirement.”).
`3 The Department’s recently published Semiannual Regulatory Agenda further demonstrates
`its non-compliance. The Agenda contains no reference to any progress or plans to start progress on
`the next OCSLA Five Year Plan. Not only are Lease Sales 257 and 258 under threat, the entire
`notion of oil and gas lease sales on the Gulf of Mexico are in doubt.
`
`
`
`- 3 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 4 of 13 PageID #: 2227
`
`139 at 34-35. Moreover, the Court specifically held that “the Government Defendants were legally
`
`required to go through with the sale of Lease Sale 257” and have unreasonably and unlawfully
`
`delayed this agency action. Doc. 139 at 38-39.
`
`Defendants have acted as if this Court’s findings, conclusions of law, and compulsory order
`
`do not exist. They have taken no actions to reinstitute Lease Sale 257; they have not, for instance,
`
`revoked the Recission of the Record of Decision or published the Final Notice of Sale. Neither step
`
`would require vast work or resources—both documents already exist. Once these steps were taken,
`
`BOEM would need to hold the Lease Sale—an action it is more than capable of executing. It has
`
`not done so and thus has violated this Court’s clear order, and remains in violation of OCSLA and
`
`the Administrative Procedure Act. See NASCO, Inc., 583 F. Supp. at 120 (party must be “reasonably
`
`diligent and energetic in attempting to accomplish what was ordered”); see also Calvillo Manriquez v.
`
`Devos, 411 F. Supp. 3d 535, 539 (N.D. Cal. 2019) (finding contempt because “Defendants’ attempt
`
`to comply with the preliminary injunction consisted of a single email to each service provider and
`
`partial confirmation of receipt of those emails” rather than “the normal actions one would expect
`
`from an entity facing a binding court order: multiple in-person meetings or telephone calls to explain
`
`the preliminary injunction and to confirm that the contractors were complying with the preliminary
`
`injunction”).4
`
`
`4 This situation is distinguishable from the finding of no contempt in Hornbeck. See Hornbeck
`Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787 (5th Cir. 2013). That contempt proceeding involved the
`implementation of a new moratorium rather than the continuation of the enjoined moratorium. Id. at
`793-95. And the Court there never held that the moratorium violated OCSLA—a start contrast to
`this Court’s conclusion in the Preliminary Injunction. Compare id. at 795 (“Hornbeck’s complaint also
`asserted that a six-month moratorium on all drilling exceeded the authority delegated to Interior
`under the Outer Continental Shelf Act. The court never reached that issue. Had the May Directive been
`enjoined on that basis, this would be a very different case. Instead, the sole justification for the preliminary
`injunction that did issue as to the first Directive was a procedural failure to explain.”) (emphasis
`added), with Doc. 139 at 5 (“[S]ince OCSLA does not grant specific authority to a President to
`‘Pause’ offshore oil and gas leases, the power to ‘Pause’ lies solely with Congress. Therefore, Plaintiff
`States have made a showing that there is a substantial likelihood that President Biden exceeded his
`powers in Section 208 of Executive Order 14008.”), and id. at 33 (“By pausing the leasing, the
`
`
`
`- 4 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 5 of 13 PageID #: 2228
`
`II.
`
`Defendants Have No Valid Defenses to Their Failure to Comply.
`Because Plaintiff States have established a prima facie case of contempt, “the burden falls
`
`upon [Defendants] to assert defenses or mitigating circumstances that might cause the court to
`
`withhold the exercise of its contempt power.” NASCO, Inc., 583 F. Supp. at 119. Defendants have
`
`no defense. As noted above, they have ample resources to conduct other activities such as wind
`
`project environmental impact statements and comment periods. No new record of decision, lease
`
`terms, or notice of sale would have to be prepared—those documents already exist. See Doc. 135-1
`
`(Lease Sale 257 ROD); Doc. 135-8 (Lease Sale 257 Lease Stipulations); Doc. 139 at 29 (“[O]n
`
`January 20, 2021, (the day President Biden was sworn in), Walter Cruickshank sent an email to
`
`Loren Thompson [Doc. No.121, PR 17], in which he stated they had received instructions to
`
`withdraw any notices that were pending at the Federal Register, which included the Final Notice of
`
`Sale for Lease Sale 257.”). All that remains is to hold the Sale itself. Olivia Y. by & Through Johnson v.
`
`Barbour, No. 3:04CV251TSL-FKB, 2011 WL 13353278, at *1 (S.D. Miss. May 17, 2011) (“‘[A] party
`
`is in civil contempt if that party fails in meaningful respects to achieve substantial and diligent
`
`compliance with a clear and unambiguous decree.’”). Defendants thus fail to carry their burden to
`
`show “a present inability to comply with the order or substantial compliance with the order” and
`
`can point to no other “mitigating circumstances.” Id.
`
`Finally, Defendants have not filed a notice of appeal, or sought or received a stay. This
`
`Court’s Order thus remains fully effective. Cf. In re Timmons, 607 F.2d 120, 125 (5th Cir. 1979) (“If a
`
`person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but,
`
`absent a stay, he must comply promptly with the order pending appeal.”); Pasadena City Bd. of Ed. v.
`
`Spangler, 427 U.S. 424, 439 (1976) (“‘It is for the court of first instance to determine the question of
`
`
`agencies are in effect amending two Congressional statutes, OCSLA and MLA, which they do not
`have the authority to do. Neither OCSLA nor MLA gives the Agency Defendants authority to pause
`lease sales.”).
`
`
`
`- 5 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 6 of 13 PageID #: 2229
`
`the validity of the law, and until its decision is reversed for error by orderly review, either by itself or
`
`by a higher court, its orders based on its decision are to be respected, and disobedience of them is
`
`contempt of its lawful authority, to be punished.’”). There is simply no excuse for Defendants’
`
`brazen noncompliance with this Court’s Order. NASCO, Inc., 583 F. Supp. at 120 (“Our Order must
`
`be obeyed and cannot be ignored unless it is withdrawn or vacated.”); Olivia Y. by & Through Johnson,
`
`2011 WL 13353278, at *1 (“Contempt proceedings begin with ‘the basic proposition that all orders
`
`and judgments of courts must be complied with promptly.’”).
`
`III. This Court Should Compel Compliance With Its Injunction.
`“Upon a finding of contempt, the district court has broad discretion in assessing sanctions to
`
`
`
`protect the sanctity of its decrees and the legal process.” Test Masters Educ. Servs., Inc. v. Singh, 428
`
`F.3d 559, 582 (5th Cir. 2005). In issuing its preliminary injunction, the Court did not need to
`
`“anticipate every action to be taken in response to its order, nor spell out in detail the means in
`
`which its order must be effectuated.” Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 2007 WL 1643211,
`
`at *6 (S.D. Tex. June 4, 2007). But Defendants’ flat refusal to implement the Court’s Order confirms
`
`that direct instructions are in order to restart the statutorily mandated oil and gas leasing program.
`
`Accordingly, an appropriately tailored sanction would be a further order compelling compliance with
`
`the June 15 Order and providing specific directions to Defendants. Such directives are particularly
`
`necessary given the ongoing irreparable harm suffered by Plaintiff States each day Defendants refuse
`
`to hold Lease Sale 257. Doc. 139 at 18 (“Just the cancellation of Lease Sale 257 itself has had
`
`immediate impact due to loss of bonus payments and ground rents.”).5
`
`
`5 Such relief is also necessary in light of the pending related litigation in Wyoming. The Court
`there has dismissed the preliminary injunction motions as moot in reliance on this Court’s
`injunction. See Doc. 71 at 2, Western Energy Alliance v. Biden, No. 0:21-cv-13 (W.D. Wyo. June 30,
`2021). Defendants’ refusal to implement this Court’s Order thus harms both Plaintiff States and the
`plaintiffs in Western Energy Alliance.
`
`
`
`- 6 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 7 of 13 PageID #: 2230
`
`
`
`Accordingly, the Court should order Defendants to do the following. First, revoke the
`
`Recission of the Lease Sale 257 Record of Decision. Second, publish the Final Notice of Sale within
`
`seven days. Third, hold Lease Sale 257 within forty-five days after publication of the Final Notice of
`
`Sale. Fourth, provide weekly status reports affirming their compliance with these deadlines.
`
`
`
`Such relief is in line with federal judicial practice. See, e.g., Laflamme v. New Horizons, Inc., 605
`
`F. Supp. 2d 378, 399 (D. Conn. 2009) (“Lest there be any doubt about the effect of this previous
`
`ruling, the Court grants OPA’s motion and orders Defendants to comply with the terms of this
`
`injunction.”); Nat’l Urb. League v. Ross, 491 F. Supp. 3d 572, 584 (N.D. Cal. 2020); Calvillo Manriquez
`
`v. Devos, 411 F. Supp. 3d 535, 540 (N.D. Cal. 2019); Bd. of Trustees of Bay Area Roofers Health & Welfare
`
`Tr. Fund v. Westech Roofing, 2011 WL 5403453, at *5 (N.D. Cal. Nov. 8, 2011); see also Int’l Ladies’
`
`Garment Workers’ Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984) (a “request for enforcement of
`
`the court’s mandate [implicates] ... the interest of the judicial branch in seeing that an unambiguous
`
`mandate is not blatantly disregarded by parties to a court proceeding ... that the District Court
`
`certainly was empowered to protect” particularly “where an administrative agency plainly neglects
`
`the terms of a mandate” and “has simply reimplemented precisely the same rule that this court
`
`vacated as ‘arbitrary and capricious’ in its first decision”). Accordingly, this Court should order
`
`Defendants to comply with their unambiguous existing statutory and regulatory mandates by
`
`holding Lease Sale 257. See NASCO, Inc., 583 F. Supp. at 121 (“[R]espondents have not been diligent
`
`in attempting to comply with our Order, and their assertion of good faith is not borne out by their
`
`conduct thus far. Absent extraordinary circumstances, we cannot refuse to preserve rights under our
`
`Order.”).
`
`
`
`
`
`
`
`
`
`- 7 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 8 of 13 PageID #: 2231
`
`Conclusion
`
`For the foregoing reasons, the Court should grant Plaintiff States’ Motion, order Defendants
`
`to show cause why they should not be held in contempt, and Order their compliance with the June
`
`15 Order by promptly holding Lease Sale 257.
`
`
`
`
`
`- 8 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 9 of 13 PageID #: 2232
`
`Respectfully submitted,
`
`JEFF LANDRY
` Attorney General
`
` /s/ Elizabeth B. Murrill T
`
`ELIZABETH B. MURRILL
` Solicitor General
`JOSEPH S. ST. JOHN
` Deputy Solicitor General
`BENJAMIN WALLACE
` Assistant Solicitor General
`LOUISIANA DEPARTMENT OF JUSTICE
`1885 N. Third Street
`Baton Rouge, LA 70804
`Tel: (225) 326-6766
`emurrill@ag.louisiana.gov
`stjohnj@ag.louisiana.gov
`
`Counsel for Plaintiff States
`
`
`Dated: August 9, 2021
`
`TYLER R. GREEN
`DANIEL SHAPIRO
`CONSOVOY MCCARTHY PLLC
`222 S. Main Street, 5th Floor
`Salt Lake City, UT 84101
`(703) 243-9423
`
`
`
`
`
`
`
`
`
`
`
`OTHER COUNSEL:
`
`STEVE MARSHALL
` Attorney General of Alabama
`Edmund G. LaCour Jr.*
` Solicitor General
`Office of the Alabama Attorney General
`501 Washington Avenue
`Montgomery, AL 36130
`Tel: (334) 353-2196
`Fax: (334) 353-8400
`Edmund.LaCourt@AlabamaAg.gov
`Counsel for the State of Alabama
`
`TREG TAYLOR
` ATTORNEY GENERAL
`Ronald W. Opsahl (Colo. Bar No. 35662)
` Assistant Attorney General
`Alaska Department of Law
`1031 West Fourth Avenue, Suite 200
`Anchorage, Alaska 99501
`Telephone: (907) 269-5100
`Fax: (907) 276-3697
`Email: ron.opsahl@alaska.gov
`Counsel for the State of Alaska
`
`
`
`
`- 9 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 10 of 13 PageID #:
`2233
`
`LESLIE RUTLEDGE
` Attorney General of Arkansas
`Nicholas J. Bronni*
` Solicitor General
`Dylan L. Jacobs*
` Assistant Solicitor General
`Office of Arkansas Attorney General Leslie
`Rutledge
`323 Center Street, Suite 200
`Little Rock, Arkansas 72201
`(501) 682-6302
`Nicholas.bronni@arkansasag.gov
`Counsel for the State of Arkansas
`
`CHRISTOPHER M. CARR
` Attorney General of Georgia
`Andrew A. Pinson*
` Solicitor General
`Office of the Attorney General
`40 Capitol Square SW
`Atlanta, Georgia 30334
`(404) 458-3409
`apinson@law.ga.gov
`Counsel for the State of Georgia
`
`LYNN FITCH
` Attorney General of Mississippi
`Krissy C. Nobile*
` Deputy Solicitor General
`State of Mississippi
`Office of the Attorney General
`P.O. Box 220
`Jackson, MS 39205
`Tel: (601) 359-3680
`Counsel for the State of Mississippi
`
`
`
`
`
`
`
`
`
`
`
`
`- 10 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 11 of 13 PageID #:
`2234
`
`ERIC S. SCHMITT
` Attorney General of Missouri
`Justin D. Smith*
` Deputy Attorney General for Special
`Litigation
`Jeff P. Johnson*
`Michael E. Talent*
`Missouri Attorney General’s Office
`Post Office Box 899
`Jefferson City, MO 65102
`Tel: (573) 751-0304
`Fax: (573) 751-0774
`Justin.Smith@ago.mo.gov
`Counsel for the State of Missouri
`
`AUSTIN KNUDSEN
` Attorney General of Montana
`David M.S. Dewhirst*
` Solicitor General
`Montana Attorney General’s Office
`215 North Sanders
`P.O. Box 201401
`Helena, MT 59620-1401
`406.444.4145
`david.dewhirst@mt.gov
`Counsel for the State of Montana
`
`DOUGLAS J. PETERSON
` Attorney General of Nebraska
`James A. Campbell*
` Solicitor General
`Office of the Nebraska Attorney General
`2115 State Capitol
`Lincoln, NE 68509
`(402) 471-2682
`jim.campbell@nebraska.gov
`Counsel for the State of Nebraska
`
`
`
`
`
`
`
`
`
`
`
`
`
`- 11 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 12 of 13 PageID #:
`2235
`
`MIKE HUNTER
` Attorney General of Oklahoma
`Mithun Mansinghani*
` Solicitor General
`Bryan Cleveland*
` Assistant Solicitor General
`Oklahoma Office of Attorney General
`313 N.E. 21ST Street
`Oklahoma City, OK 73105
`Phone: (405) 522-4392
`mithun.mansinghani@oag.ok.gov
`Counsel for the State of Oklahoma
`
`KEN PAXTON
` Attorney General of Texas
`Brent Webster
` First Assistant Attorney General
`Judd E. Stone II
` Solicitor General
`Patrick Sweeten
` Deputy Attorney General
`Office of the Attorney General
`P.O. Box 12548 (MC 009)
`Austin, Texas 78711-2548
`Tel.: (512) 463-4139
`Fax: (512) 474-2697
`Patrick.Sweeten@oag.texas.gov
`Judd.Stone@oag.texas.gov
`Counsel for the State of Texas
`
`SEAN D. REYES
` Attorney General of Utah
`Melissa A. Holyoak*
` Solicitor General
`Utah Attorney General’s Office
`350 N. State Street, Suite 230
`P.O. Box 142320
`Salt Lake City, UT 84114-2320
`385.271.2484
`melissaholyoak@agutah.gov
`Counsel for the State of Utah
`
`
`
`
`
`
`
`
`
`- 12 -
`
`

`

`Case 2:21-cv-00778-TAD-KK Document 149-1 Filed 08/09/21 Page 13 of 13 PageID #:
`2236
`
`PATRICK MORRISEY
` West Virginia Attorney General
`Lindsay S. See*
` Solicitor General
`State Capitol, Bldg 1, Room E-26
`Charleston, WV 25305
`(304) 558-2021
`Lindsay.s.see@wvago.gov
`Counsel for the State of West Virginia
`
`*Admission application forthcoming
`
`
`
`
`
`
`
`
`- 13 -
`
`