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Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 1 of 61
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`No. 21-cv-01827
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`NATURAL RESOURCES DEFENSE
`COUNCIL, INC.
`40 West 20th Street, 11th Floor
`New York, NY 10011
`
`AMERICAN ASSOCIATION OF
`ZOOLOGICAL PARKS AND
`AQUARIUMS INC. d/b/a Association of Zoos
`& Aquariums
`8403 Colesville Road, Suite 710
`Silver Spring, MD 20910
`(Montgomery County)
`
`CENTER FOR BIOLOGICAL DIVERSITY
`378 N. Main Avenue
`Tucson, AZ 85701
`
`HEALTHY GULF
`1010 Common Street, #902
`New Orleans, LA 70112
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`SURFRIDER FOUNDATION
`942 Calle Negocio, Suite 350
`San Clemente, CA 92673
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`
`
`
`v.
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`
`
`
`Plaintiffs,
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`
`
`
`JANET COIT,
`in her official capacity as
`Assistant Administrator for Fisheries,
`National Marine Fisheries Service
`1315 East-West Highway
`Silver Spring, MD 20910
`(Montgomery County)
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`

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`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 2 of 61
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`NATIONAL MARINE FISHERIES SERVICE
`1315 East-West Highway
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`
`Silver Spring, MD 20910
`(Montgomery County)
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`NATIONAL OCEANIC AND
`ATMOSPHERIC ADMINISTRATION
`1401 Constitution Avenue, NW, Room 5128
`Washington, DC 20230
`
`GINA RAIMONDO, in her official capacity
`as Secretary of Commerce,
`United States Department of Commerce
`1401 Constitution Avenue, NW
`Washington, DC 20230
`
`BUREAU OF OCEAN ENERGY
`MANAGEMENT
`1849 C Street, NW
`Washington, DC 20240
`
`AMANDA LEFTON,
`in her official capacity as Director,
`Bureau of Ocean Energy Management
`1849 C Street, NW
`Washington, DC 20240
`
`DEB HAALAND,
`in her official capacity as Secretary of the
`Interior,
`United States Department of the Interior
`1849 C Street, NW
`Washington, DC 20240
`
`
`Defendants.
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`

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`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 3 of 61
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`INTRODUCTION
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`
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`This case arises from the federal government’s approval of seismic airgun
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`surveys that will “take”—that is, disturb, injure, and even kill—countless marine
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`mammals and other protected ocean species, some already on the brink of extinction.
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`These federal approvals violated the Endangered Species Act, Marine Mammal
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`Protection Act, and National Environmental Policy Act, and flouted the Administrative
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`Procedure Act’s standards for reasoned agency decision-making.
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`
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`The ocean is an acoustic world. Sound travels far more efficiently
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`underwater than through the air, and whales, dolphins, and other marine mammals
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`depend on sound to find mates, forage, avoid predators, navigate, and communicate—
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`in short, for virtually every life function. These animals are acutely sensitive to acoustic
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`disturbance.
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`
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`The oil and gas industry uses seismic airgun surveys to locate fossil fuel
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`deposits beneath the ocean floor. These surveys typically deploy arrays of airguns,
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`which are towed behind ships across broad swaths of the ocean. While seismic surveys
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`are useful for oil and gas prospecting, they have devastating impacts on marine life.
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`
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`Seismic airgun arrays fire intense blasts of energy into the water about
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`every 10 to 12 seconds for days, weeks, or months at a time depending on the length of
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`the survey. A large seismic array can produce effective levels of sound—above 250
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`decibels—greater than that of virtually any other man-made source, save explosives.
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`These noise blasts penetrate deep into the seafloor and rebound to the surface for
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`analysis.
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`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 4 of 61
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`At close range, the intensity of the energy blasts fired from seismic airgun
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`arrays can kill or physically injure marine life. The sound then radiates outward and is
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`so powerful that it can still be heard thousands of miles away. Seismic surveys can
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`therefore disrupt entire acoustic habitats, masking sound signals and interfering with
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`behaviors that are essential to marine species’ feeding, mating, and rearing of young.
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`
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`In the Gulf of Mexico, seismic surveys are the dominant source of noise
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`pollution, particularly in the low frequencies that are crucial for baleen and sperm
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`whales. Due in substantial part to these surveys, ambient noise levels in the Gulf are
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`among the highest measured anywhere on earth.
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`
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`At the core of this case is the government’s failure to satisfy its duties,
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`under multiple statutes, to assess, minimize, and prevent unlawful harm from this
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`highly disruptive activity.
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`In March 2020, the National Marine Fisheries Service (“the Service”)
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`issued a Biological Opinion under the Endangered Species Act (ESA) that found that
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`anticipated seismic surveys in the Gulf of Mexico would contribute to the extinction of
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`the endangered Gulf of Mexico Bryde’s whale, of which only about 50 individual
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`whales remain. Despite that conclusion, the Service then arbitrarily decided that minor
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`mitigation measures—measures that would not reduce the number, location, or
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`intensity of seismic surveys in any way—would nevertheless eliminate the extinction
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`risk. This unexplained conclusion did not follow from the Service’s own factual
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`findings, violated the Administrative Procedure Act’s standards for reasoned agency
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`decision-making, and contravened the Service’s unequivocal statutory duty to assist
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`federal agencies in “insur[ing] that [their actions] [are] not likely to jeopardize the
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`continued existence of any endangered species,” 16 U.S.C. § 1536(a)(2), (b).
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`
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`In January 2021, the day before a new administration took office, the
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`Service published a rule (“the Seismic Rule”) that authorizes harm from five years of
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`seismic airgun blasting in the Gulf of Mexico under the Marine Mammal Protection Act
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`(MMPA), 16 U.S.C. § 1361 et seq. 86 Fed. Reg. 5322 (Jan. 19, 2021). The extent of harm
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`allowed under the Seismic Rule is enormous. Under the rule, multiple airgun surveys
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`may traverse the Gulf, on average, every hour of every day for the next five years,
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`disrupting and in some cases injuring marine mammals more than eight million times
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`over that period.
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`
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`The MMPA allows the Service to authorize the “incidental” take of “small
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`numbers” of marine mammals only if certain conditions are met. 16 U.S.C.
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`§ 1371(a)(5)(A)(i). Among other requirements, the incidental take must have no more
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`than a “negligible impact” on marine mammal species or populations. Id. And the
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`Service must require mitigation to minimize the impact to the species and their habitat
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`to the “least practicable” level. Id. The Service violated those standards, authorizing the
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`“take” of up to one-third of each species during each survey. The Service rested that
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`decision on an unscientific surmise that the taking of a third of any species is a “small”
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`number. The Service then compounded that error by failing to evaluate potentially
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`practicable mitigation measures. For several of the Gulf’s marine mammals, including
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`the endangered Gulf of Mexico Bryde’s whale, the authorized harm will not be
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`“negligible.” See id. It will be devastating.
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`3
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`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 6 of 61
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`The Service and the Bureau of Ocean Energy Management also violated
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`the National Environmental Policy Act (NEPA) by relying on an outdated
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`environmental impact statement (EIS). NEPA “requires that [an] agency take a ‘hard
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`look’ at environmental impacts before taking major actions.” Nat’l Audubon Soc’y v.
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`Dep’t of Navy, 422 F.3d 174, 184 (4th Cir. 2005). Here, the Service and the Bureau failed
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`to update their analysis—which by the time of their decisions was years old—to include
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`the Service’s own ESA finding that the agencies’ actions would contribute to the
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`potential extinction of the Gulf of Mexico Bryde’s whale. These agencies also violated
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`NEPA by failing to address the presence of Gulf of Mexico Bryde’s whales in areas of
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`the Gulf where the Service and the Bureau intend to authorize nearly unrestricted
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`seismic blasting. “The hallmarks of a ‘hard look’ are thorough investigation into
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`environmental impacts and forthright acknowledgment of potential environmental
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`harms.” Id. at 187 (citation omitted). The agencies’ efforts here “fell short in both
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`regards.” Id.
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`
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`These government actions are unlawful and threaten to unnecessarily
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`harm hundreds of thousands of marine mammals.
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`JURISDICTION AND VENUE
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`
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`This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question)
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`and 5 U.S.C. § 702 (Administrative Procedure Act). The relief sought is authorized by 28
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`U.S.C. § 2201(a) (declaratory relief), 28 U.S.C. § 2202 (injunctive relief), and 5 U.S.C.
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`§ 706(2) (vacatur).
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`
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and (e)(1)
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`4
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`because Defendant Janet Coit, in her official capacity as Assistant Administrator for
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`Fisheries, has her office in this District; Defendant National Marine Fisheries Service’s
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`headquarters are located in this District; Plaintiff American Association of Zoological
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`Parks and Aquariums Inc. resides in this district (and no real property is involved in
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`this action against agencies and officers of the United States); and a substantial part of
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`the events and omissions which gave rise to this action occurred in this District,
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`including:
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`a. The Biological Opinion and Seismic Rule were signed by Donna Wieting and
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`Samuel D. Rauch III, respectively, Service officials who work at the Service’s
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`headquarters office in Silver Spring, Maryland, in this District;
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`b. The Service was a consulting agency on the NEPA review led by the Bureau,
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`and the Final Programmatic Environmental Impact Statement was reviewed
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`by Service staff and adopted by the Service as the NEPA document for the
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`Seismic Rule in this District;
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`c. A substantial portion of the work in preparing, reviewing, and approving
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`these agency actions was done by those and other Service officials and staff at
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`the Silver Spring headquarters office in this District;
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`d. The Seismic Rule was prepared by the Service in this District, and the
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`Service’s “consultation lead” for the Biological Opinion was based in this
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`District;
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`e. The Service’s review and approval of the Final Programmatic Environmental
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`Impact Statement was conducted in this District by Service and National
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`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 8 of 61
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`Oceanic and Atmospheric Administration (NOAA) officials, including Vicki
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`Wedell, NOAA’s then-acting Chief of the Policy and Planning Division;
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`f. The administrative records for the Seismic Rule and for the Biological
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`Opinion are located in this District; and
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`g. Documents in the Service’s possession that are part of the administrative
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`record for the Service’s review and approval of the Programmatic
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`Environmental Impact Statement, and for its adoption of the Programmatic
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`Environmental Impact Statement as a NEPA document for the Seismic Rule,
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`also are located in this District.
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`PARTIES
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`I.
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`Plaintiffs
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`
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`Plaintiff Natural Resources Defense Council, Inc. (NRDC) is a nationwide
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`nonprofit environmental organization. NRDC has over 400,000 members nationwide.
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`NRDC’s mission is to “safeguard the Earth: its people, its plants and animals, and the
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`natural systems on which all life depends.” For more than two decades, NRDC has
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`worked to protect marine mammals and other wildlife from the harmful effects of ocean
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`noise.
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` NRDC members derive recreational, conservation, aesthetic, and other
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`benefits from the ecosystems and species of the Gulf of Mexico and its coastline,
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`including marine mammals in the Gulf of Mexico.
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`For example, one NRDC member, Bonny Schumaker, who is also a
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`member of Plaintiff Healthy Gulf, regularly visits the Gulf of Mexico and enjoys seeing
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`or seeking marine wildlife, including the Gulf of Mexico Bryde’s whale and sperm
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`whale. Ms. Schumaker is a pilot who routinely flies over the Gulf—including over the
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`habitat for the Bryde’s whale and other marine mammals—along with scientists and
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`other observers to locate, photograph, and document the presence of marine mammals
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`and other wildlife. She has done so for over a decade. Ms. Schumaker’s work supports
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`conservation efforts and scientific research. Ms. Schumaker plans to continue regular
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`flights during the next 12 months and for the foreseeable future thereafter over the
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`northeastern Gulf and the habitat of the Gulf of Mexico Bryde’s whale and sperm
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`whale, and to look for and attempt to see these species, as well as other marine
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`mammals such as bottlenose dolphins.
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`
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`Plaintiff American Association of Zoological Parks and Aquariums Inc.,
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`d/b/a Association of Zoos & Aquariums, (Association of Zoos and Aquariums or AZA)
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`is a 501(c)(3) nonprofit organization dedicated to the advancement of zoos and
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`aquariums in the areas of conservation, education, science, and recreation. AZA
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`represents more than 240 facilities in the United States and overseas, including facilities
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`along the Gulf of Mexico, which collectively draw more than 200 million visitors every
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`year and are leaders in conservation education. AZA-accredited zoos and aquariums
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`dedicate millions of dollars annually to conduct scientific research, conservation, and
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`education programs, including programs for marine mammal conservation in waters
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`affected by Defendants’ actions. AZA members engage with other key stakeholders to
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`redress the harm to endangered or threatened species injured, stranded, or otherwise
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`harmed in coastal waters off the United States. AZA’s members intend to continue to do
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`so in the months and years ahead. AZA’s headquarters and principal place of business
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`is located in Silver Spring, Montgomery County, Maryland.
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`Plaintiff Center for Biological Diversity is a nonprofit organization that
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`works to protect wildlife, including endangered species and their habitats. The Center
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`has more than 84,000 members who are dedicated to environmental conservation. The
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`Center has longstanding interests in marine mammals, endangered species, and their
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`habitat. Toward these interests, the Center has engaged in advocacy and actions to
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`protect marine habitat from the adverse impacts of offshore oil and gas activities. The
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`Center has worked to protect Gulf of Mexico wildlife—sperm, Bryde’s, and Cuvier’s
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`beaked whales; manatees; bottlenose dolphins; loggerhead, Kemp’s Ridley, and
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`leatherback sea turtles; bluefin tuna; oceanic whitetip shark; smalltooth sawfish; and
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`numerous corals. The Center has members who appreciate and benefit from these
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`animals and their habitat for viewing, photography, recreation, research, and personal
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`enjoyment. For example, the Center has a member who regularly visits the Gulf of
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`Mexico to enjoy marine wildlife. They go to the Gulf of Mexico to observe manatees,
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`whales, and other marine mammals. This member works to advocate for wildlife
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`protections from threats such as fisheries, oil and gas development, pollution, and
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`habitat destruction. Additionally, the Center’s member has a strong interest in
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`conserving sea turtles, often visiting Gulf sea turtle habitat and nesting beaches.
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`Plaintiff Healthy Gulf is a nonprofit network of community, conservation,
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`environmental, and fishing groups and individuals committed to protection and
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`restoration of the natural resources of the Gulf of Mexico. Healthy Gulf’s purpose is to
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`collaborate with and serve communities who love the Gulf of Mexico by providing
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`research, communications, and coalition-building tools needed to reverse the long-
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`pattern of over-exploitation of the Gulf’s natural resources. Healthy Gulf is
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`headquartered in New Orleans, Louisiana, with offices in Pensacola, Florida, and
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`Madison, Mississippi. Healthy Gulf members live in the five Gulf states of Texas,
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`Louisiana, Mississippi, Alabama, and Florida, as well as other states.
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` Healthy Gulf members and constituents, including member Bonny
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`Schumaker, regularly use, enjoy, and benefit from the marine environment of the Gulf
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`of Mexico. Healthy Gulf members benefit from the presence of the Gulf’s marine
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`mammal species and their marine environment for recreational, aesthetic, commercial,
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`scientific, and environmental purposes, including sailing, whale-watching, scientific
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`study, boat touring, underwater diving, fishing, and photography. The ability of
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`Healthy Gulf’s members to pursue these interests is contingent on the continued
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`existence and wellbeing of marine mammal populations in the Gulf of Mexico.
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`Plaintiff Surfrider Foundation (Surfrider) is a nonprofit organization
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`dedicated to the protection and enjoyment of the world’s oceans, waves, and beaches.
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`Surfrider has more than 350,000 supporters and members, 79 local chapters, and 92
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`school clubs in the United States, and maintains five local chapters on the Gulf coast.
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`Surfrider’s members look for, study, and enjoy marine species in the Gulf, including
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`Gulf of Mexico Bryde’s whales, sperm whales, and beaked whales. Surfrider’s members
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`derive recreational, aesthetic, and economic benefits from the ocean in the Gulf of
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`Mexico and the diverse marine life that resides there, including marine species that are
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`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 12 of 61
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`likely to be harmed by seismic surveys. For example, Surfrider has members who visit
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`the Gulf along the Texas coast often, mostly to surf, but also to fish. An essential part of
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`those activities includes observing and experiencing the Gulf’s marine life, including
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`dolphins that are frequently in the same waters. Surfrider’s members’ future use and
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`enjoyment of Gulf waters depends on healthy and sustainable populations of marine
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`mammals and other marine life.
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`Plaintiffs and their members derive significant benefits—recreational,
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`aesthetic, economic, cultural, or scientific—from marine mammals in the Gulf of Mexico
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`and their ecosystems. Defendants’ failure to comply with federal law and the resulting
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`harm to the marine environment, including the disturbance, injury, and death of marine
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`mammals and other marine life, adversely and irreparably harms the interests of
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`Plaintiffs and their members, and continues to do so.
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`Plaintiffs’ and Plaintiffs’ members’ injuries will be redressed by the relief
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`they request, as that relief would undo or reduce the causes of those injuries. Plaintiffs
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`have no other adequate remedy at law.
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`II.
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`Defendants
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` Defendant Janet Coit, as Assistant Administrator for Fisheries, is the
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`highest-ranking official within the National Marine Fisheries Service and, in that
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`capacity, has responsibility for the administration and implementation of the MMPA
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`and of the ESA with regard to marine species, and for compliance with all other federal
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`laws applicable to the Service. Assistant Administrator Coit works out of the Service’s
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`headquarters office in Silver Spring, Montgomery County, Maryland. She is sued in her
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`official capacity.
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` Defendant National Marine Fisheries Service is a federal agency within
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`the National Oceanic and Atmospheric Administration in the Department of
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`Commerce. The Service is authorized and required by law to protect and manage the
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`fish, marine mammals, and other marine resources of the United States, including by
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`enforcing and implementing the MMPA and, with respect to marine species, the ESA.
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`The Service’s headquarters and primary office are in Silver Spring, Montgomery
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`County, Maryland.
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`
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`The Service issued the Seismic Rule and the Biological Opinion. The
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`Service also adopted the environmental review documents challenged here that were
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`prepared by Defendant Bureau of Ocean Energy Management under NEPA.
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` Defendant National Oceanic and Atmospheric Administration is a federal
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`agency within the Department of Commerce, with its principal offices in Washington,
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`D.C. NOAA has supervisory authority over the Service.
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` Defendant Gina Raimondo, United States Secretary of Commerce, is the
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`highest-ranking official within the Department of Commerce and, in that capacity, has
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`ultimate responsibility for the administration and implementation of the MMPA and
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`the ESA, and for compliance with all other federal laws applicable to the Department of
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`Commerce. She is sued in her official capacity.
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` Defendants Coit, the Service, NOAA, and Raimondo are collectively
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`referred to as the “National Marine Fisheries Service Defendants.”
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` Defendant Bureau of Ocean Energy Management (“the Bureau”) is an
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`agency within the Department of the Interior. The Bureau is responsible for managing
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`oil, gas, and mineral natural resources on the Outer Continental Shelf. The Bureau is
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`responsible for the permitting and oversight of oil and gas leasing, exploration, and
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`production activities in the Gulf of Mexico. The Bureau issued the Programmatic
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`Environmental Impact Statement and Record of Decision challenged here, and is
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`responsible for ensuring compliance with NEPA and all other federal laws.
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` Defendant Amanda Lefton is the Director of the Bureau and is the official
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`ultimately responsible for all Bureau activities. She is sued in her official capacity.
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` Defendant Deb Haaland, Secretary of the United States Department of the
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`Interior, is the highest-ranking official within that Department, and, in that capacity, has
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`ultimate responsibility for the administration and implementation of NEPA and all
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`other applicable federal laws with respect to the Bureau and Interior activities. She is
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`sued in her official capacity.
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` Defendants Bureau of Ocean Energy Management, Lefton, and Haaland
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`are collectively referred to as the “Bureau of Ocean Energy Management Defendants.”
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`STATUTORY AND REGULATORY BACKGROUND
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`
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`To permit seismic surveying in the Gulf, the Service, the Bureau, and their
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`officers must comply with several federal statutes: the ESA, the MMPA, NEPA, and the
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`Administrative Procedure Act (APA), among others.
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`I.
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`Endangered Species Act
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`
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`The ESA is “the most comprehensive legislation for the preservation of
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`endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,
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`180 (1978). Congress enacted the ESA because human activities had caused many
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`species to go extinct, and other species “have been so depleted in numbers that they are
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`in danger of or threatened with extinction.” 16 U.S.C. § 1531(a)(1)-(2).
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`
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`Section 7 of the ESA generally prohibits federal agencies from authorizing,
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`funding, or carrying out any action “likely to jeopardize the continued existence of any
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`endangered species or threatened species.” Id. § 1536(a)(2). To “jeopardize” a species
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`means to engage in an action that could reduce appreciably the likelihood of survival or
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`recovery. See 50 C.F.R. § 402.02.
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` A federal agency’s grant of permits or authorizations is agency action
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`subject to the requirements of Section 7. Id. § 402.02(c).
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`
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`Section 7 of the ESA establishes a consultation process that agencies must
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`follow to fulfill their substantive mandate to avoid jeopardizing endangered or
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`threatened species and adversely affecting their habitat. 16 U.S.C. § 1536(a)(2). Under
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`this process, an agency proposing an action that may affect such species must consult
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`with the National Marine Fisheries Service (for most marine species) or with the U.S.
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`Fish and Wildlife Service (for land-based species) to evaluate the current status of the
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`species and the environmental baseline, as well as the proposed action and its direct,
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`indirect, and cumulative effects. See 50 C.F.R. § 402.14(a), (g).
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`
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`The agency proposing an action subject to the ESA section 7 consultation
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`requirement is termed the “action agency,” while the National Marine Fisheries Service
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`or the Fish and Wildlife Service, depending on the species at issue, is termed the
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`“consulting agency.” In cases where one of the wildlife agencies is itself taking an
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`action, the agency may be both the “action agency” and the “consulting agency” for the
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`action, with different divisions within the agency engaging in consultation with each
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`other.
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`The ESA action agencies in this case are the Bureau, which engaged the
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`Service’s ESA Interagency Cooperation Division for consultation on its oil and gas
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`program for the Gulf of Mexico; and the Service’s Permits and Conservation Division,
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`which engaged the Service’s ESA Interagency Cooperation Division for consultation
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`with respect to the Seismic Rule.
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` As part of the consultation process, the consulting agency must determine
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`whether the action is likely to jeopardize the continued existence of a species or result in
`
`the destruction or adverse modification of a species’ critical habitat. 16 U.S.C.
`
`§ 1536(b)(3)-(4); 50 C.F.R. §§ 402.02, 402.14(g)(3)-(4). The consulting agency makes this
`
`determination in a document known as a “biological opinion.” 16 U.S.C.
`
`§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(1).
`
` A biological opinion must include a summary of the information upon
`
`which the opinion is based, and an evaluation of “the current status of the listed
`
`species,” the “effects of the action,” and “cumulative effects.” 50 C.F.R. § 402.14(g)(2),
`
`(3), (h)(1).
`
`
`
`The “environmental baseline” includes “the past and present impacts of
`
`all Federal, State or private actions and other human activities in the action area, the
`
`anticipated impacts of all proposed Federal projects in the action area that have already
`
`undergone formal or early Section 7 consultation, and the impact of State or private
`
`
`
`14
`
`

`

`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 17 of 61
`
`
`
`actions which are contemporaneous with the consultation in process.” Id. § 402.02
`
`“Cumulative effects” include “future State or private activities, not involving Federal
`
`activities, that are reasonably certain to occur within the action area.” Id. The consulting
`
`agency must evaluate and determine whether the action, when added to the
`
`environmental baseline and together with any cumulative effects, will jeopardize the
`
`continued existence of any listed species or destroy or adversely modify any species’
`
`critical habitat. Id. § 402.14(g)(3)-(4).
`
` During the consultation process, each agency must use the best scientific
`
`and commercial data available. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8).
`
`
`
`If the consulting agency concludes that an action is likely to jeopardize an
`
`endangered or threatened species or destroy or adversely modify critical habitat, it
`
`must list “reasonable and prudent alternatives” that would avoid jeopardy. 16 U.S.C.
`
`§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(2).
`
`
`
`If the consulting agency concludes that an action is not likely to jeopardize
`
`an endangered or threatened species or destroy or adversely modify critical habitat, but
`
`could “take” listed species (within the meaning of the ESA), then the consulting agency
`
`must issue an incidental take statement that (1) describes the amount or extent of
`
`anticipated take, (2) specifies reasonable and prudent measures to minimize adverse
`
`impacts, and (3) prescribes mandatory terms and conditions for the action. 16 U.S.C.
`
`§ 1536(b)(4); 50 C.F.R. § 402.14(i)(1).
`
`
`
`The ESA defines “take” as “to harass, harm, . . . wound, [or] kill.” 16
`
`U.S.C. § 1532(19).
`
`
`
`15
`
`

`

`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 18 of 61
`
`
`
`
`
` Under Section 9 of the ESA, 16 U.S.C. § 1538(a)(1)(B), it is illegal for any
`
`person—including governmental agencies—to take any endangered species except in
`
`compliance with an incidental take statement or other authorization.
`
`II. Marine Mammal Protection Act
`
`
`
`In 1972, Congress enacted the MMPA because “certain species and
`
`population stocks of marine mammals are, or may be, in danger of extinction or
`
`depletion as a result of man’s activities.” 16 U.S.C. § 1361(1). Legislative history
`
`confirms that Congress intended to build a “conservative bias” into the Act, so that “no
`
`steps should be taken regarding these animals that might prove to be adverse or even
`
`irreversible in their effects until more is known.” H.R. Rep. No. 92-707, at 15 (1971), as
`
`reprinted in 1972 U.S.C.C.A.N. 4144, 4148.
`
`
`
`To protect against further depletion and extinction of these species, the
`
`MMPA establishes a “moratorium on the taking . . . of marine mammals.” 16 U.S.C.
`
`§ 1371(a). The term “take” means “to harass, hunt, capture, or kill, or attempt to harass,
`
`hunt, capture, or kill any marine mammal.” Id. § 1362(13). “Harassment” includes any
`
`act that has the potential to (1) injure a marine mammal or marine mammal stock
`
`(referred to as “Level A harassment”), or (2) disturb a marine mammal or marine
`
`mammal stock by disrupting behavioral patterns such as migration, breeding, feeding,
`
`or sheltering (referred to as “Level B harassment”). Id. § 1362(18)(A), (C). All takings of
`
`marine mammals (other than those due to certain specific activities not relevant here)
`
`are prohibited by the Act. Id. § 1371(a).
`
` Under a limited exception to this prohibition, the Service may authorize
`
`
`
`16
`
`

`

`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 19 of 61
`
`
`
`the take of marine mammals incidental to a specified activity, under certain
`
`circumstances. Id. § 1371(a)(5)(A). To authorize such take over a period lasting more
`
`than one year, the Service must determine that the activity will take only “small
`
`numbers of marine mammals of a species or population stock,” id. § 1371(a)(5)(A)(i),
`
`and that the authorized take will have at most “a negligible impact on such species or
`
`stock,” id. § 1371(a)(5)(A)(i)(I); see 50 C.F.R. § 216.103. In addition, if the Service
`
`authorizes incidental take under this exception, it must also prescribe “means of
`
`effecting the least practicable adverse impact” on the marine mammal species or stock
`
`and its habitat. 16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa). In making these determinations, the
`
`Service must employ “the best scientific evidence available.” 50 C.F.R. § 216.102(a); see
`
`16 U.S.C. § 1371(a)(5)(A)(i).
`
`III. National Environmental Policy Act
`
` NEPA, 42 U.S.C. § 4321 et seq., establishes “a broad national commitment
`
`to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens
`
`Council, 490 U.S. 332, 348 (1989). It declares the federal government’s responsibility to
`
`act “as trustee of the environment for succeeding generations” and to use “all
`
`practicable means” to “assure . . . safe, healthful, productive, and esthetically and
`
`culturally pleasing surroundings,” 42 U.S.C. § 4331(b)(1)-(2).
`
` NEPA requires federal agencies to prepare an EIS for all “major Federal
`
`actions significantly affecting the quality of the human environment.” 42 U.S.C.
`
`§ 4332(C). If an action may have a significant effect on the environment, or if there are
`
`substantial questions about whether it may, an agency must prepare an EIS.
`
`
`
`17
`
`

`

`Case 8:21-cv-01827-PX Document 1 Filed 07/22/21 Page 20 of 61
`
`
`
`
`
`Through this mechanism, Congress intended NEPA to serve as “an
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`environmental full disclosure law” that enables the public to “weigh a project’s benefits
`
`against its environmental costs.” Sierra Club v. U.S. Army Corps of Eng’rs, 772 F.2d 1043,
`
`1049 (2d Cir. 1985). Congress also intended NEPA environmental review to ensure “the
`
`integrity of the agency process,” forcing agencies to “face” rather than “ignor[e]”
`
`“stubborn, difficult-to-answer objections.” Id. NEPA’s core requirement is that agencies
`
`“take a ‘hard look’ at the environmental effects of their planned action[s]” before
`
`approving them. Marsh v. Or. N

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