Case 2:21-cv-00778-TAD-KK Document 155 Filed 08/24/21 Page 1 of 21 PageID #: 2818
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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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`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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`DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
`PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE AND COMPEL
`COMPLIANCE WITH PRELIMINARY INJUNCTION
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`Case 2:21-cv-00778-TAD-KK Document 155 Filed 08/24/21 Page 2 of 21 PageID #: 2819
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`TABLE OF CONTENTS
`INTRODUCTION .......................................................................................................................... 1
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`BACKGROUND ............................................................................................................................ 2
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`A.
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`B.
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`Offshore Leasing ..................................................................................................... 2
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`Onshore Leasing ..................................................................................................... 5
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`STANDARD OF REVIEW ............................................................................................................ 5
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`ARGUMENT .................................................................................................................................. 6
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`I.
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`II.
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`Plaintiffs Have Not Established Even A Prima Facie Case Of Contempt, Let
`Alone A Clear And Convincing Case Of Contempt ............................................... 6
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`Plaintiffs’ Compliance Motion Improperly Requests That The Court Modify
`Its Injunction To Exceed Its Jurisdiction .............................................................. 11
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`CONCLUSION ............................................................................................................................. 16
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`i
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`TABLE OF AUTHORITIES
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`Cases
`Am. Lung Ass’n v. Env’t Prot. Agency,
`985 F.3d 914 (D.C. Cir. 2021) .................................................................................................... 4
`ConocoPhillips Co. v. U.S. EPA,
`612 F.3d 822 (5th Cir. 2010) .................................................................................................... 13
`Crowe v. Smith,
`151 F.3d 217 (5th Cir. 1998) ...................................................................................................... 5
`Cutler v. Hayes,
`818 F.2d 879 (D.C. Cir. 1987) .................................................................................................. 15
`Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C.,
`710 F.3d 579 (5th Cir. 2013) .................................................................................................... 11
`Hornbeck Offshore Servs., L.L.C. v. Salazar,
`713 F.3d 787 (5th Cir. 2013) .............................................................................................. 6, 8, 9
`In re Howard,
`570 F.3d 752 (6th Cir. 2009) .................................................................................................... 15
`Nat'l Grain & Feed Ass'n, Inc. v. Occupational Safety & Health Admin.,
`903 F.2d 308 (5th Cir. 1990) .................................................................................................... 15
`Norton v. S. Utah Wilderness All.,
`542 U.S. 55 (2004) .............................................................................................................. 13, 14
`Oaks of Mid City Resident Council v. Sebelius,
`723 F.3d 581 (5th Cir. 2013) .................................................................................... 6, 10, 11, 13
`Roadway Express, Inc. v. Piper,
`447 U.S. 752 (1980) .................................................................................................................... 5
`Schmidt v. Lessard,
`414 U.S. 473 (1974) .................................................................................................................. 12
`Scott v. Schedler,
`826 F.3d 207 (5th Cir. 2016) .................................................................................................... 12
`Telecomms. Rsch. & Action Ctr. v. FCC,
`750 F.2d 70 (D.C. Cir. 1984) .................................................................................................... 15
`Travelhost, Inc. v. Blandford,
`68 F.3d 958 (5th Cir. 1995) ........................................................................................................ 5
`
`
`
`ii
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`U.S. Steel Corp. v. United Mine Workers of Am.,
`519 F.2d 1236 (5th Cir. 1975) .................................................................................................. 12
`Whitfield v. Pennington,
`832 F.2d 909 (5th Cir. 1987) ...................................................................................................... 5
`Statutes
`43 U.S.C. § 1349(c)(1) .................................................................................................................. 15
`Other Authorities
`11A Wright & Miller, Federal Practice & Procedure § 2955 (3d ed.) .......................................... 12
`86 Fed. Reg. 7619 (Jan. 27, 2021) ................................................................................................ 12
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`iii
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`INTRODUCTION
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`When this Court’s preliminary injunction decision issued on June 15, the Department of
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`the Interior immediately announced it would comply with that decision, and it has. Although
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`Defendants respectfully disagree with the Court’s ruling, they are proceeding with leasing
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`consistent with the Court’s injunction pending their appeal. Over the last ten weeks, Interior has
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`devoted more than 650 person-hours toward holding further proposed sales under the operative
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`five-year program, including Lease Sales 257 and 258. The agency has also directed
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`considerable resources toward onshore leasing activities. And that work has put Interior on track
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`to publicly announce both onshore and offshore leasing activity by August 31. Interior is
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`complying with the June 15 Order (Doc. 140), and Plaintiffs have not justified the need for an
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`order of enforcement, much less the extraordinary remedy of contempt.
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`Plaintiffs nonetheless argue that Interior has “acted as if this Court’s findings,
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`conclusions of law, and compulsory order do not exist,” Doc. 149-1 at 4, and rely heavily on
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`Secretary Haaland’s testimony before the Senate Committee on Energy and Natural Resources
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`despite her testifying at least six times that the Interior Department was complying with the
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`Court’s Order. Neither Plaintiffs’ assertions nor a proper read of the Secretary’s testimony lend
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`support to their motion.
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`Because Plaintiffs have no evidence that Interior has acted or failed to act in violation of
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`the Court’s Order, the Court should deny their motion. The Court should also decline Plaintiffs’
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`requests to modify its Order in ways that would exceed the Court’s jurisdiction.
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`1
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`BACKGROUND
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`After this Court issued its preliminary injunction decision on June 15, 2021, Interior
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`immediately stated its intention to “comply with the decision.”1 And complying with that
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`decision is precisely what Interior has done: “Since the Court’s Order, the Department has taken
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`no action implementing the pause of new oil and natural gas leases on public lands or in offshore
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`waters as set forth in Section 208, Executive Order 14008 or action implementing said pause
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`with respect to Lease Sale 257, Lease Sale 258 and to all eligible onshore properties.”
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`Declaration of Principal Deputy Assistant Secretary for Land and Mineral Management Laura
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`Daniel-Davis (Daniel-Davis Decl.) ¶ 12. Interior has also expended significant agency
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`resources, including many hundreds of employee-hours, preparing to hold oil and gas lease sales.
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`Id. ¶ 30, 36, 46–49. Although Defendants have appealed the Court’s preliminary injunction,
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`Doc. 152, they have indicated that they “will proceed with leasing consistent with the district
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`court’s injunction during the appeal.”2 And they presently intend to announce both onshore and
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`offshore lease sale activity within one week, i.e., by August 31, 2021, Daniel-Davis Decl. ¶¶ 31,
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`48, as further explained below.
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`Offshore Leasing
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`A.
`Under the current five-year program, the process to hold an offshore lease sale “can take
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`between 3 and 5 years to complete, and contains [fifteen] steps and decision points.” 2017–2022
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`Outer Continental Shelf Oil and Gas Leasing Proposed Final Program (Program), Nov. 2016,
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`Doc. 129-2, at 1-15 to 1-16. Of these fifteen steps, Interior had taken only eleven with respect to
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`1 Ex. A, Louisiana judge blocks Biden administration’s oil and gas leasing pause, Washington
`Post, June 15, 2021, https://www.washingtonpost.com/climate-
`environment/2021/06/15/louisiana-judge-blocks-biden-administrations-oil-gas-leasing-pause/.
`2 Ex. B, Interior Issues Statement on Oil and Gas Leasing Program, Aug. 16, 2021,
`https://www.doi.gov/pressreleases/interior-issues-statement-oil-and-gas-leasing-program.
`2
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`Lease Sale 257 at the time Executive Order 14,008 issued. Daniel-Davis Decl. ¶ 19. The
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`remaining steps to occur include corresponding with the Governors of affected states, publishing
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`the final notice of sale, and holding the lease sale. Id. ¶ 20; Program, at 1-16. The Bureau of
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`Ocean Energy Management (BOEM) presently anticipates sending a new Record of Decision to
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`the Federal Register by August 31, 2021, publishing the final notice of sale for Lease Sale 257 in
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`September and holding the lease sale in October or November 2021. Daniel-Davis Decl. ¶ 31.
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`That anticipated timeline accords with the schedule set out in the Program, which proposes
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`holding Lease Sale 257 sometime in 2021, not any particular month in 2021:
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`Program, at S-4.
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`Consistent with the Program’s recognition that some of the fifteen prelease “steps may
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`. . . be repeated, based on the particular needs of the lease sale and area,” id. at 1-15, Interior is
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`currently in the process of preparing another Record of Decision and Final Notice of Sale for
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`Lease Sale 257. Daniel-Davis Decl. ¶ 31. As Plaintiffs’ Proposed Order recognizes, the prior
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`Notice of Sale cannot simply be published, as it would need “appropriate amendments to reflect
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`the new timeline.” Doc. 149-2, at 1. Similarly, the March 17, 2021, date in the prior Record of
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`Decision, Doc. 129-3, at 14, must be amended to account for the new sale date. Additionally,
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`key factual information in the prior Record of Decision was significantly outdated by the time
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`the Court’s Order issued on June 15, 2021.3
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`3 For example, the prior Record of Decision “acknowledge[d] that recent, significant drops in oil
`prices may affect the number of leases sold in Lease Sale 257.” Doc. 129-3, at 5. But that drop
`off in oil prices had largely subsided by the time the Court issued its decision. (The Court can
`3
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`
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`Because certain aspects of the prior Record of Decision were outdated, BOEM has
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`devoted significant effort to preparing a new Record of Decision for Lease Sale 257. Since June
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`15, 2021, BOEM employees have devoted at least 525 person-hours to planning further proposed
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`Gulf of Mexico sales under the Program, including Lease Sale 257, i.e. “over 13 person-hours of
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`work per business day, on average, since the Court’s Order.” Daniel-Davis Decl. ¶ 30. That
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`work “included (but has not been limited to), preparing possible new lease stipulations,
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`evaluating potential sale areas, geographic information system (‘GIS’) analysis, review of
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`[National Environmental Policy Act (NEPA)] analysis, and revision of documents.” Id. ¶ 32.
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`Again, BOEM anticipates submitting a new Record of Decision for publication within a week.
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`Id. ¶ 31. In sum, Interior is committed to continuing the process required by law before a lease
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`may be issued.
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`Similarly, for Lease Sale 258, BOEM has spent at least 130 person-hours since June 15
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`preparing to advance Lease Sale 258 to the comment stage. Daniel-Davis Decl. ¶ 36. This
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`“work has included reviewing and revising existing exploration and development scenarios to
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`account for the May 2021 Oil and Gas Assessment (BOEM’s annual estimate of undiscovered,
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`technically and economically recoverable oil and natural gas resources outside of known oil and
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`take judicial notice that oil prices had risen by approximately 50% from January to June of this
`year. Ex. C, U.S. crude oil prices top $75 a barrel, the highest since 2018, CNBC, July 1, 2021,
`https://www.cnbc.com/2021/07/01/us-crude-oil-prices-top-75-a-barrel-the-highest-since-
`2018.html.) Additionally, the prior Record of Decision analyzed greenhouse gas emissions with
`respect to two scenarios based on the United States Environmental Protect Agency’s (EPA’s)
`rules: a scenario in which the Clean Power Plan was being implemented; and a scenario
`considering the “repeal of the Clean Power Plan and issuance of the Affordable Clean Energy
`Rule.” Doc. 129-3, at 6. But by June 15, neither of those scenarios accurately reflected a world
`in which the D.C. Circuit had vacated the Affordable Clean Energy Rule and the Clean Power
`Plan was not in effect. Am. Lung Ass’n v. Env’t Prot. Agency, 985 F.3d 914, 995 (D.C. Cir.
`2021); see also Ex. C, Feb. 22, 2021 Order (holding mandate for vacatur of Clean Power Plan
`repeal so that the Clean Power Plan was not reinstated).
`4
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`gas fields on the outer continental shelf) and recalculating the probabilities of discharge as part
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`of the Bureau’s Oil Spill Risk Analysis.” Id. ¶ 37 (footnote omitted). Based on that substantial
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`work, BOEM presently anticipates opening the public comment period for a revised Draft
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`Environmental Impact Statement for Lease Sale 258 in September or October 2021. Id. ¶ 38.
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`Onshore Leasing
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`B.
`Although Plaintiffs’ motion does not address onshore leasing in any substance,
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`Defendants have continued their progress in addressing the NEPA issues affecting the onshore
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`leasing program. In light of that progress, Bureau of Land Management (BLM) leadership
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`recently directed BLM state offices to finalize parcel lists for upcoming sales, in order to
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`publicly post those parcel lists for NEPA scoping by August 31, 2021. Daniel-Davis Decl. ¶ 48.
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`Following scoping, BLM anticipates publishing draft NEPA documents for public comment in
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`October 2021, followed by a notice of sale published in December 2021. Id.
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`STANDARD OF REVIEW
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`Although federal courts have the inherent power to punish for contempt, that power
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`“must be exercised with restraint and discretion” because it is “shielded from direct democratic
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`controls.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). Rather than stemming
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`from a “broad reservoir,” it is an “implied power squeezed from the need to make the court
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`function.” Crowe v. Smith, 151 F.3d 217, 226 (5th Cir. 1998).
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`“The civil contempt sanction is coercive rather than punitive and is intended to force a
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`recalcitrant party to comply with a command of the court.” Whitfield v. Pennington, 832 F.2d
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`909, 913 (5th Cir. 1987). “A party commits contempt when he violates a definite and specific
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`order of the court requiring him to perform or refrain from performing a particular act or acts
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`with knowledge of the court’s order.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir.
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`1995) (internal quotation marks and citation omitted).
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`5
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`“To obtain a civil contempt order, [a movant must] prove, by clear and convincing
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`evidence, that: (1) the preliminary injunction was in effect at the time of the government’s
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`supposedly contemptuous conduct; (2) the injunction, neither vaguely nor ambiguously, required
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`the government to perform or abstain from certain conduct; and (3) the government failed to
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`comply with the injunction’s requirement(s).” Oaks of Mid City Resident Council v. Sebelius,
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`723 F.3d 581, 585 (5th Cir. 2013) (internal references omitted). Clear and convincing evidence
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`is “that weight of proof which produces in the mind of the trier of fact a firm belief or conviction
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`. . . so clear, direct and weighty and convincing as to enable the fact finder to come to a clear
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`conviction, without hesitancy, of the truth of precise facts of the case.” Hornbeck Offshore
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`Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (internal reference omitted).
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`ARGUMENT
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`I.
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`Plaintiffs Have Not Established Even A Prima Facie Case Of Contempt, Let Alone
`A Clear And Convincing Case Of Contempt.
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`Plaintiffs provide no evidence that Defendants have taken a single action in violation of
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`the Court’s Order; nor could they, as the Principal Deputy Assistant Secretary for Land and
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`Minerals Management has confirmed that “[s]ince the Court’s Order, the Department has taken
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`no action implementing the pause.” Daniel-Davis Decl. ¶ 12. Instead, Plaintiffs’ Motion
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`presents only (1) out-of-context snippets of Congressional testimony, Doc. 149-1, at 3, and (2)
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`unfounded allegations about inaction by Interior, id., at 2. Neither argument demonstrates even a
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`prima facie case of contempt, let alone provides the requisite “clear and convincing evidence”
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`necessary to establish civil contempt. Hornbeck, 713 F.3d at 792.
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`First, Plaintiffs claim that “Defendants’ noncompliance with the Court’s order” is
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`established by the Secretary’s statement during a budget hearing that “the [p]ause is still in
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`place.” Mot. at 3. That is incorrect. The Secretary’s testimony simply recognized that no
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`6
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`competitive lease sale had occurred since Executive Order 14,008 issued: “I mean you can say
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`that as soon as one lease sale happens, that the pause is over.” Doc. 148-1, at 59:50–59:57. Her
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`statement about the pause being “in place” did not describe any agency policy, but instead
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`merely “technically . . . suppose[d] [what] you could say” about the lack of lease sales. Id. at
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`1:00:15–1:00:21. And she did not at all suggest that the Department was continuing to
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`implement the pause in contravention of this Court’s Order. To the contrary, she testified six
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`times during the same three-minute colloquy that the Department was complying with the
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`Court’s Order. 4 As she explained, although “there is a lot of work that goes into even having a
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`A:
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`Q:
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`4 The full colloquy between Senator Hyde-Smith and Secretary Haaland is set out below (Doc.
`148-1, at 58:30–1:02:03):
`Q:
`I’d like to discuss the report that your Department is set to release. For
`clarification, is this report a final report or is it an interim report?
`Senator, thank you for the question. And the report that we are set to
`release is an interim report. And it will be released soon.
`But it’s totally an interim report. And does this report bring the
`Department into compliance with current law?
`A: We are actually in compliance with the Court Order currently. We are
`complying with the Court order right now. As we speak, the Department is
`working. As I mentioned, there is a lot of work that goes into even having
`a lease sale. And so, they are complying with the Court order now,
`today.
`So the ban has been released?
`I suppose that the pause that you’re referring to—that President Biden
`ordered in his Executive Order—is, I suppose it’s in effect. I mean you
`can say that as soon as one lease sale happens, that the pause is over. But
`what I can say is we are complying with the Court order and we are doing
`the work necessary to move in that direction.
`So the pause is not in place at this time?
`Q:
`A: Well, technically, I suppose you could say the pause is still in
`place. However, we are complying with the Court order to move forward
`on releasing the report and moving this issue forward.
`Does the report contain formal binding decisions or anything that will be
`enforceable?
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`Q:
`A:
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`Q:
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`7
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`lease sale,” the Department was “doing the work necessary to move in that direction.” Doc. 148-
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`1, at 59:12–1:00:10; see also id. at 26:55–27:53 (leasing is “not a switch you can turn on” as
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`“there’s a lot of work that goes into a lease sale”).
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`The Fifth Circuit’s Hornbeck decision demonstrates that the Secretary’s testimony is no
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`evidence of contempt. 713 F.3d at 792–96 (reversing district court contempt finding). There,
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`the district court enjoined Interior from enforcing a drilling moratorium. Id. at 790. The day the
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`injunction issued, the Secretary announced his view that the “decision to impose a moratorium
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`on deepwater drilling was and is the right decision,” and his intention to “issue a new order in the
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`coming days that eliminates any doubt that a moratorium is needed, appropriate, and within our
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`authorities.” Id. (internal quotation marks and citation omitted). In subsequent Congressional
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`testimony, the Secretary confirmed his “resolve to reissue the moratorium” and “referred to the
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`moratorium as ‘in place.’” Id. at 794. Despite the Secretary’s stated intention to overcome the
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`preliminary injunction by issuing a new moratorium, the Fifth Circuit found his conduct not
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`contemptuous because the “court order did not explicitly prohibit a new, or even an identical,
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`moratorium.” Id. at 795.
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`Q:
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`A:
`
`
`A:
`As I mentioned earlier Senator, the report is in its final internal draft and I
`am unable to comment on it at the moment.
`OK, and what action has the Department taken to be in compliance with
`the Judge’s ruling? Have there been any decisions to reinstate lease sales?
`Specifically, I’m referring to Lease Sale 257?
`Thank you Senator. Unfortunately, Senator, I can’t comment specifically
`on the question that you’re asking. We’d be more than happy to be back
`in touch with you as soon as we do have specific answers to your
`questions. I know that overall, the Department is working on ensuring that
`we are complying with the Court order.
`And with the Lease Sale 257? Are you familiar with that Lease Sale 257?
`Senator, I understand the question you’re asking, and I want to assure you
`that we are doing our best to move forward.
`
`Q:
`A:
`
`
`
`8
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`In contrast to Hornbeck—where the court found that Secretary Salazar had explicitly
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`intended to overcome a preliminary injunction through subsequent agency action—Secretary
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`Haaland has repeatedly affirmed her intention to comply with the Court’s Order. See supra pp.
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`2, 7–8 & n.4. And the Department in fact has been diligently working to comply with the
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`Court’s Order by expending over 650 person-hours to prepare future lease sales. See supra pp.
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`4–5. Against that backdrop, the Secretary’s observation that “Well, technically, I suppose you
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`could say the pause is still in place,” Doc. 149-1, at 59:36–59:50, cannot be contemptuous when
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`the Fifth Circuit found the testimony in Hornbeck—that an enjoined moratorium was “in place”
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`coupled with an explicit intent to re-implement a similar moratorium—not contemptuous.
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`Hornbeck, 713 F.3d at 794.5
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`Tellingly, Plaintiffs hide their entire discussion of the Fifth Circuit’s Hornbeck decision
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`in a footnote of their compliance motion, Doc. 149-1, at 4–5 n.4, even as they repeatedly relied
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`on the Hornbeck line of cases in their preliminary injunction motion, see Doc. 3-1, at ii.
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`Plaintiffs attempt to distinguish Hornbeck as being about a procedural, rather than a substantive,
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`failure. Doc. 149-1, at 4–5 n.4. But this attempted distinction is unavailing because the Court’s
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`decision relied, in relevant part, on an alleged procedural failure of the agency. See Doc. 139, at
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`27 (“the Secretary of the DOI cannot make any significant changes to the Five-Year Plan without
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`going through the same procedure by which the Five-Year Plan was developed”).
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`5 Additionally, because Executive Order 14,008 has not been rescinded, it is at least “in some
`sense accurate,” Hornbeck, 713 F.3d at 794, to state that “the pause . . . that President Biden
`ordered in his Executive Order is, I suppose it’s in effect,” Doc. 149-1, at 59:36–59:50. See
`Hornbeck, 713 F.3d at 794 (“Moreover, because the May Directive had not been rescinded,
`saying the moratorium was ‘in place’ was in some sense accurate.”). Nor does the Court’s Order
`require the rescindment of Executive Order 14,008, as it does not apply to President Biden. See
`Doc. 140 (naming all Defendants but President Biden). Although the Executive Order remains
`in place, that does not change the fact that “the Department has taken no action implementing the
`pause,” Daniel-Davis Decl. ¶ 12, as required by the injunction.
`9
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`Second, Plaintiffs allege without any evidence or apparent investigation that “BOEM has
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`taken no action whatsoever to hold Lease Sale 257.” Doc. 149-1, at 2. Plaintiffs improperly
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`equate the fact that no competitive lease sale has yet been held with complete inaction by the
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`Department.6 The latter is untrue as the very testimony that Plaintiffs cite make plain. The
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`Secretary testified that Interior was “doing [its] best to move forward” on Lease Sale 257. Doc.
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`148-1, at 1:01:40–1:02:03. This work includes the following:
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`• Devoting at least 525 person-hours to planning for proposed Gulf of Mexico sales
`under the Program, including Lease Sale 257, i.e. “over 13 person-hours of work
`per business day since the Court’s Order,” Daniel-Davis Decl. ¶ 30;
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`• “[P]reparing possible new lease stipulations, evaluating potential sale areas,
`geographic information system (‘GIS’) analysis, and review of NEPA analysis
`and documents,” id.; and
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`• Preparing to publish a new Record of Decision for Lease Sale 257 by August 31,
`2021, followed by subsequent steps necessary to hold Lease Sale 257 this year, id.
`¶ 31.
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`Similarly, for Lease Sale 258, BOEM has spent at least 130 person-hours since June 15
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`preparing to advance that sale to the comment stage, by accounting for intervening information
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`including BOEM’s May 2021 Oil and Gas Assessment and recalculated oil discharge
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`probabilities. Daniel-Davis Decl. ¶ 37.
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`Given Interior’s significant efforts to prepare for the lease sales in question, Plaintiffs
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`have not and cannot approach the clear and convincing showing that would be needed to support
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`an order of civil contempt—as demonstrated by Sebelius, where the Fifth Circuit reversed a
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`district court’s contempt ruling. There, the agency was preliminarily enjoined from “taking any
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`action on the basis of [a] Notice of Termination.” 723 F.3d at 585. With such an injunction,
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`6 Plaintiffs’ counsel did not engage with Defendants’ counsel seeking to understand what work
`Interior had done to move forward the process for holding Lease Sale 257. Had Plaintiffs’
`counsel done so, their motion may have been obviated.
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`“contempt was appropriate only if [the movant] proved, by clear and convincing evidence, that
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`the Notice affected the government’s conduct while the injunction was in effect.” Id. The
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`movant nonetheless overreached, arguing that the injunction against certain actions also required
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`the government to take action. Id. (“Oaks treats the injunction as requiring the government to
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`pay for services.”). But the Fifth Circuit found that argument “rests on a misreading of the
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`injunction.” Id.
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`Similarly here, Plaintiffs misread the Court’s Order as requiring government action on a
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`specific timeline, when there is no such command in the Court’s Order. See Doc. 140. Because
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`Fifth Circuit law establishes that civil contempt is available only when “the injunction, neither
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`vaguely nor ambiguously, required the government to perform or abstain from certain conduct,”
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`Sebelius, 723 F.3d at 585, Plaintiffs cannot establish contempt on their inaction theory. The fact
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`that Interior has not completed Lease Sales 257 and 258 does not indicate contempt; such sales
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`involve a series of administrative steps, which are required by the relevant federal statutes and
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`regulations. The Court’s order does not compel the agency to act in contravention of these other
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`authorities.
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`II.
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`Plaintiffs’ Compliance Motion Improperly Requests That The Court Modify Its
`Injunction To Exceed Its Jurisdiction.
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`Although styled as a contempt motion, Plaintiffs’ motion actually seeks to modify the
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`Court’s Order to obtain additional relief that it did not seek or obtain during the preliminary
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`injunction proceedings. As explained below, much of Plaintiffs’ additional requested relief is
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`neither required by the Court’s Order nor within the Court’s jurisdiction, and would not be
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`appropriate for an order of enforcement.
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`To comply with Rule 65(d), a “court’s order granting the injunction must ‘state its terms
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`specifically’ and ‘describe in reasonable detail’ the conduct restrained or required.” Daniels
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`Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 (5th Cir. 2013)
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`(quoting Fed. R. Civ. P. 65(d)). The Supreme Court has repeatedly emphasized that “the
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`specificity provisions of Rule 65(d) are no mere technical requirements.” Schmidt v. Lessard,
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`414 U.S. 473, 476 (1974). “The Rule was designed to prevent uncertainty and confusion on the
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`part of those faced with injunctive orders, and to avoid the possible founding of a contempt
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`citation on a decree too vague to be understood.” Id. Because “[t]he rule embodies the
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`elementary due process requirement of notice,” U.S. Steel Corp. v. United Mine Workers of Am.,
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`519 F.2d 1236, 1246 (5th Cir. 1975), “an ordinary person reading the court’s order should be
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`able to ascertain from the document itself exactly what conduct is proscribed,” Scott v. Schedler,
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`826 F.3d 207, 211–12 (5th Cir. 2016) (quoting U.S. Steel Corp., 519 F.2d at 1246 n.20). “Since
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`the language employed in Rule 65(d) strongly suggests that only those acts specified by the order
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`will be treated as within its scope and that no conduct or action will be prohibited by implication,
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`all omissions or ambiguities in the order will be resolved in favor of any person charged with
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`contempt.” 11A Wright & Miller, Form and Scope of Injunctions or Restraining Orders, Federal
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`Practice & Procedure Civil § 2955 (3d ed.).
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`Here, the Court’s Order proscribes Interior “from implementing the Pause of new oil and
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`natural gas leases on public lands or in offshore waters as set forth in Section 208, Executive
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`Order 14008, 86 Fed. Reg. 7619, 7624-25 (Jan. 27, 2021) and as set forth in all documents
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`implementing the terms of said Executive Order by said defendants, as to all eligible lands.”