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Case 3:21-cv-00335 Document 1 Filed on 11/30/21 in TXSD Page 1 of 16
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`Case No. 3:21-cv-335
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
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`UNITED STATES OF AMERICA and
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`STATE OF TEXAS,
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`Plaintiffs,
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`v.
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`KIRBY INLAND MARINE, LP,
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`Defendant.
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`_______________________________________)
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`COMPLAINT
`The United States of America, by authority of the Attorney General of the United
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`States and acting at the request of the Department of the Interior through the Fish and
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`Wildlife Service (“FWS”) and the National Park Service (“NPS”) and the Department of
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`Commerce (“DOC”) through the National Oceanic and Atmospheric Administration
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`(“NOAA”), and the State of Texas (the “State”), appearing through the Office of the
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`Texas Attorney General on behalf of the Texas General Land Office (“TGLO”), the
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`Texas Commission on Environmental Quality (“TCEQ”), and the Texas Parks and
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`Wildlife Department (“TPWD”), file this Complaint and allege as follows:
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`NATURE OF THE CASE
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`1.
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`This is a civil action brought against Defendant Kirby Inland Marine, LP
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`(“Kirby” or “Defendant”) for recovery of damages for injuries to, destruction of, loss of,
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`or loss of use of natural resources, under Section 1002 of the Oil Pollution Act (“OPA”),
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`33 U.S.C. § 2702. Plaintiffs seek to recover natural resource damages (“NRD”) for
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`injuries resulting from the March 2014 discharge of oil that occurred in the Houston Ship
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`Channel from an oil barge owned and operated by Kirby.
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`2.
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`The oil spill occurred on March 22, 2014, after a Kirby towboat pushing
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`two Kirby oil barges tried to cross in front of a 585-foot-long deep-draft bulk cargo ship
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`that was traveling in the Houston Ship Channel in the vicinity of the Texas City Y
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`crossing. The lead Kirby oil barge was struck, a tank ruptured, and approximately 4,000
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`barrels (168,000 gallons) of marine fuel oil spilled into the waters of the Houston Ship
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`Channel. The oil flowed out of the Channel, into Galveston Bay, and then spread into the
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`Gulf of Mexico and down the Texas coastline.
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`3.
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`Approximately 160 miles of shoreline were oiled as a result of the spill,
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`including sensitive marsh habitat, the national wildlife refuge on Matagorda Island,
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`Mustang Island State Park, and Padre Island National Seashore. Natural resources killed
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`or harmed by the spill include birds, dolphins and other marine life, waters of the United
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`States and the State, marshes, beaches, and subtidal habitats. The spill also resulted in
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`losses to recreational users of the marine and coastal environment in the spill impact area,
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`which stretched from Galveston-area beaches to beaches as far south as Padre Island
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`National Seashore near Corpus Christi.
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`4.
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`Plaintiffs seek damages under OPA to compensate for and restore natural
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`resources and natural resource services injured by the oil discharge. Plaintiffs also seek to
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`recover their remaining unreimbursed assessment and restoration planning costs.
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`JURISDICTION AND VENUE
`The Court has jurisdiction over the subject matter of this action pursuant to
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`5.
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`28 U.S.C. §§ 1331 and 1345 and Section 1017(b) of OPA, 33 U.S.C. § 2717(b). The
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`Court also has jurisdiction over Defendant.
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`6.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and Section
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`1017(b) of OPA, 33 U.S.C. § 2717(b), because Defendant resides and does business in
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`this district and the oil discharge occurred in this district.
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`STATUTORY BACKGROUND
`Section 1002(a) of OPA, 33 U.S.C. § 2702(a), provides that “each
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`responsible party for a vessel or a facility from which oil is discharged . . . into or upon
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`the navigable waters or adjoining shorelines or the exclusive economic zone is liable for
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`the removal costs and damages specified in [33 U.S.C. § 2702(b)] that result from such
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`incident.”
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`8.
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`Section 1001(32)(A) of OPA, 33 U.S.C. § 2701(32)(A), defines
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`“responsible party” to include, in the case of a vessel, “any person owning, operating, or
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`demise chartering the vessel.”
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`9.
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`Section 1001(27) of OPA, 33 U.S.C. § 2701(27), defines “person” to
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`include a corporation.
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`10.
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`Section 1001(37) of OPA, 33 U.S.C. § 2701(37), defines “vessel” to mean
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`“every description of watercraft or other artificial contrivance used, or capable of being
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`used, as a means of transportation on water, other than a public vessel.”
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`11.
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`Section 1001(23) of OPA, 33 U.S.C. § 2701(23), defines “oil” to mean “oil
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`of any kind or in any form, including petroleum.”
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`12.
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`Section 1001(7) of OPA, 33 U.S.C. § 2701(7), defines “discharge” to mean
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`“any emission (other than natural seepage), intentional or unintentional,” and to include
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`“spilling, leaking, pumping, pouring, emitting, emptying, or dumping.”
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`13.
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`Section 1001(21) of OPA, 33 U.S.C. § 2701(21), defines “navigable
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`waters” to mean “the waters of the United States, including the territorial seas.”
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`14.
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`Section 1002(b)(2) of OPA, 33 U.S.C. § 2702(b)(2), provides that the
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`“damages” referred to in Section 1002(a) of OPA, 33 U.S.C. § 2702(a), include
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`“[d]amages for injury to, destruction of, loss of, or loss of use of, natural resources,
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`including the reasonable costs of assessing the damage, which shall be recoverable by a
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`United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee.”
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`15.
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`Section 1001(20) of OPA, 33 U.S.C. § 2701(20), defines “natural
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`resources” to include “land, fish, wildlife, biota, air, water, ground water, drinking water
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`supplies, and other such resources belonging to, managed by, held in trust by,
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`appertaining to, or otherwise controlled by the United States (including the resources of
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`the exclusive economic zone), any State or local government or Indian tribe, or any
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`foreign government.”
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`16.
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`Section 1001(14) of OPA, 33 U.S.C. § 2701(14), defines “incident” to
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`mean “any occurrence or series of occurrences having the same origin, involving one or
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`more vessels . . . , resulting in the discharge . . . of oil.”
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`17.
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`The trustees for the natural resources injured by the oil discharge include
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`DOI through FWS and NPS and DOC through NOAA, on behalf of the United States,
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`and TGLO, TCEQ, and TPWD on behalf of the State of Texas (collectively, the
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`“Trustees”).
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`18. DOI through FWS and NPS and DOC through NOAA are the designated
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`United States trustees pursuant to Section 1006(b)(2) of OPA, 33 U.S.C. § 2706(b)(2),
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`Subpart G of the National Oil and Hazardous Substances Pollution Contingency Plan
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`(“NCP”) (40 C.F.R. § 300.600, et seq.) and Executive Order 12580 (3 C.F.R., 1987
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`Comp. p. 193, 52 Fed. Reg. 2923 (January 23, 1987) as amended by Executive Order
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`12777 (56 Fed. Reg. 54757 (October 22, 1991)).
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`19.
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`TGLO, TCEQ, and TPWD are designated as state trustees by the Governor
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`of Texas pursuant to Section 1006(b)(3) of OPA, 33 U.S.C. § 2706(b)(3), and subpart G
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`of the NCP, 40 C.F.R. § 300.605.
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`20.
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`Pursuant to OPA, the Trustees are acting on behalf of the public to seek
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`damages for the injury to, destruction of, loss of, or loss of use of natural resources
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`resulting from the discharge of oil.
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`A. The Source of the Oil Discharge
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`FACTS
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`21. Kirby owned and operated the towboat the Miss Susan at the time of the oil
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`discharge on March 22, 2014.
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`22.
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`The Miss Susan measures 70 feet long, 28 feet across, and 10 feet deep, and
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`is an 1,800-horsepower towing vessel weighing 131 gross tons.
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`23. Kirby owned and operated the oil barges the Kirby 27705 and the Kirby
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`27706, which were connected to and being pushed by the Miss Susan at the time of the
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`oil discharge.
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`24.
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`25.
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`Each barge measured 300 feet long, 54 feet across, and 12 feet deep.
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`The Kirby 27706 was a double-hulled marine barge outfitted with several
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`4,000-barrel storage tanks, capable of carrying liquid petrochemical products, including
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`oil. At the time of the oil discharge, the barge was transporting marine fuel oil.
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`B. The Collision and Oil Discharge
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`26.
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`The marine vessel the Summer Wind is a deep-draft bulk cargo ship that
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`measures 585 feet long, 100 feet wide, and 52.5 feet deep, and weighs 25,503 gross tons.
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`27. At approximately 11:15 a.m. on March 22, 2014, the Miss Susan departed
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`from the port at Texas City, bound for Port Bolivar, Texas, to await berth availability at
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`the final destination of Galveston, Texas.
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`28. When the Miss Susan departed the port at Texas City, the vessel was
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`pushing the Kirby 27706 and the Kirby 27705, and the three vessels were lined up in an
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`end-to-end configuration with Kirby 27706 in the lead position, for a total length of
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`approximately 670 feet.
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`29. On the morning of March 22, 2014, the Kirby 27705 and the Kirby 27706
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`were each loaded with nearly one million gallons of marine fuel oil.
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`30. By approximately 12:15 p.m. on March 22, 2014, the Miss Susan was
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`approaching the busy “Texas City Y” area, which is where the Houston Ship Channel,
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`the Texas City Channel, the Bolivar Roads Channel, and the Intracoastal Waterway
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`intersect.
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`31. On the morning of March 22, 2014, before and at the time of the discharge,
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`there was significantly reduced visibility in the Texas City Y area due to fog.
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`32. Due to the poor visibility in the Texas City Y area, at about 7:00 a.m. on
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`the morning of March 22, 2014, the Houston Pilots Association had suspended pilot
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`boardings of inland-bound deep-draft vessels.
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`33. At approximately 12:00 p.m., the Summer Wind was the first deep-draft
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`vessel authorized to depart, after the 7:00 a.m. suspension of pilot boardings set by the
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`Houston Pilots Association, from anchorage inbound toward Houston.
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`34. As a deep-draft cargo vessel, the Summer Wind is supposed to navigate in
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`the Texas City Y area only in the confines of the ship channels. Pursuant to applicable
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`Inland Navigation Rules, the Summer Wind had the right of way in the Houston Ship
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`Channel as between it and the Miss Susan.
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`35.
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`It is customary for vessels navigating in and around the Texas City Y area
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`to broadcast their navigation plans and to make passing arrangements via radio channel
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`13.
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`36. At approximately 12:10 p.m., the pilot of the Summer Wind made a radio
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`call over channel 13 wherein he indicated that the ship was leaving anchorage inbound to
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`Houston. The Summer Wind was also visible on navigational monitoring instruments,
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`including those onboard the Miss Susan.
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`37. At approximately 12:24 p.m., the Miss Susan, which had been traveling
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`eastbound in the Texas City Channel, commenced a port turn into the current in order to
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`prepare to cross the Houston Ship Channel.
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`38. At the time that the Miss Susan and the Kirby barges were approaching the
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`Houston Ship Channel, the waterway was influenced by a “flood tide” of approximately
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`1 knot. The resulting current acted as a drag on the Miss Susan and the Kirby barges,
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`slowing their speed.
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`39. Also at that time, fog was still present in the intersection of the Houston
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`Ship Channel where the Miss Susan intended to cross and the Summer Wind was
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`approaching.
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`40. At about 12:25 p.m., the Summer Wind was approaching the area of the
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`Houston Ship Channel that the Miss Susan was attempting to cross, moving at a speed of
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`almost 10 knots, and a “close quarters” situation was developing between the vessels.
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`41. At approximately 12:29 p.m., the captain of another tow operating in the
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`area, the Mission, radioed the Miss Susan and provided a further alert to the situation.
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`The Mission asked, “[h]ey you going to be [. . .] beating [the Summer Wind] across the
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`intersection there?” The Miss Susan responded, “I’m going to be crossing the intersection
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`there in a minute, over.” The Mission captain replied, “[y]eah, that’s what I'm saying, you
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`going to beat him across? Are you gonna be across before [the Summer Wind] gets down
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`here?” The Miss Susan stated, “Roger.”
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`42.
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`It was not until around 12:31 p.m. that the Miss Susan made its first direct
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`communication with the Summer Wind over radio channel 13.
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`43. At approximately 12:32 p.m., the pilot of the Summer Wind responded to
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`the Miss Susan over the radio that, “if you keep on going, I’m going to get you unless
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`you’re doing about 7 or 8 knots ‘cause right now I’m less than three quarters of a mile
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`from you [and] you ain’t got to the [Houston Ship Channel] yet.”
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`44. At the time the vessels were approaching one another, the Miss Susan’s
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`speed had slowed considerably under the influence of the flood tide, to approximately 3.5
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`knots.
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`45. At about 12:35 p.m., the Summer Wind’s bow struck the lead barge, the
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`Kirby 27706, halfway down its starboard side.
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`46.
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`The collision pierced the hull of the Kirby 27706 tank barge and ruptured
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`one of the oil storage tanks. The barge released approximately 4,000 barrels (168,000
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`gallons) of marine fuel oil into the waterway.
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`47.
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`The collision and oil spill could have been avoided had Kirby’s vessels not
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`tried to cross in front of the Summer Wind in the Houston Ship Channel at the time and
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`under the conditions that it did so.
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`48. On the day of the collision and oil spill, the United States Coast Guard
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`Captain of the Port ordered the Houston Ship Channel closed to prevent wakes of large
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`vessels from moving oil toward the shorelines. The Houston Ship Channel remained
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`closed for five days as a result of the oil spill.
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`49. Kirby, the United States Coast Guard, and the State responded to the spill
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`and conducted and monitored months of cleanup efforts. Kirby also entered into a
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`cooperative agreement with the Trustees for natural resource injury assessment.
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`C. Impacts to Natural Resources and Recreational Services
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`50.
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`The Trustees conducted extensive natural resource injury assessment work.
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`The Trustees used information from the response and assessment work, including field
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`observations, research and analysis of the specific oil chemistry involved in the
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`discharge, oil toxicity from literature and studies, and modeling to determine the extent of
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`injuries and the compensatory restoration requirements for the oil discharge. The
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`Trustees collectively coordinated their assessment work and will jointly plan and
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`implement restoration efforts.
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`51.
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`The marine fuel oil that discharged from the Kirby barge spread with the
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`currents and winds into Galveston Bay, the Gulf of Mexico, and south along Galveston
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`Island and down the Texas coastline as far south as Padre Island National Seashore.
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`52. Marine fuel oil that spills into the environment is known to be harmful to
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`terrestrial and aquatic life.
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`53. Numerous types of birds and other terrestrial and aquatic life are known to
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`inhabit the areas impacted by the oil discharge. Terrestrial wildlife includes, but is not
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`limited to, a wide variety of resident and migratory birds. Aquatic life includes, but is not
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`limited to, dolphins, finfish, crustaceans, and shellfish.
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`54. At least 160 miles of Texas shoreline, including multiple environmentally
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`sensitive areas, were contaminated by Kirby’s oil spill just as the migratory shorebird
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`season was approaching.
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`55. One of the sensitive areas impacted by the spill was the Matagorda Island
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`Unit of the Aransas National Wildlife Refuge. Matagorda Island is a 38-mile-long barrier
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`island located over 120 miles southwest of Galveston that contains about 26,000 acres of
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`salt marsh and tidal flats and supports a wide variety of migratory birds, including
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`federally listed threatened or endangered species such as the critically endangered
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`Whooping Crane.
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`56. Common bottlenose dolphins can be found in aquatic habitats throughout
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`the Texas coastline. There are seven dolphin stocks (demographically independent
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`populations) present in the inshore and coastal areas impacted by Kirby’s oil spill. One of
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`the largest resident dolphin populations in Texas, extensively studied since the 1980s, is
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`found in Galveston Bay. The Texas City Y area (also known as Bolivar Roads), in
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`particular, is an area that features high dolphin density because its deepwater channels
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`provide important dolphin habitat.
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`57.
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`The discharged oil killed and harmed birds, dolphins, and other aquatic life
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`and contaminated waters and aquatic and shoreline habitats, including subtidal areas,
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`marshes, and beaches. During the oil spill response and cleanup, dead and oiled birds,
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`dolphins, and other marine life were observed in the oiled waterways and along the
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`shoreline.
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`58.
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`The discharged oil also resulted in losses to recreational users of the marine
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`and coastal environment along the Texas coast. Recreational activities such as beach use,
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`boating, and fishing were impacted due to direct oiling, closures and advisories, and the
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`reasonable expectation of oiling as a result of the spill. The presence of oil on beaches or
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`in the water degraded the quality of or accessibility to recreational activities.
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`CLAIM FOR RELIEF
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`Natural Resource Damages under Section 1002 of OPA
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`59.
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`The preceding paragraphs are realleged and incorporated herein by
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`reference.
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`60. On March 22, 2014, Kirby discharged approximately 4,000 barrels of
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`marine fuel oil from one of its barges into the Houston Ship Channel at the Texas City Y
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`crossing. Oil discharged from the barge into the waterway and polluted parts of the
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`Houston Ship Channel, Galveston Bay, the Gulf of Mexico, Matagorda Island, and the
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`Texas coastline.
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`61. Kirby is the “responsible party” for Kirby’s tank barge Kirby 27706 within
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`the meaning of Section 1001(32)(A) of OPA, 33 U.S.C. § 2701(32)(A).
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`62. Kirby is a corporate entity and a “person” within the meaning of Section
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`1001(27) of OPA, 33 U.S.C. § 2701(27).
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`63. At the time of the oil discharge, Kirby was the owner and operator of the
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`tank barge.
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`64. Kirby’s tank barge is a “vessel” within the meaning of Section 1001(37) of
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`OPA, 33 U.S.C. § 2701(37).
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`65.
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`The spilling of oil from the Kirby tank barge was a “discharge” within the
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`meaning of Section 1001(7) of OPA, 33 U.S.C. § 2701(7). Approximately 4,000 barrels
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`of oil (168,000 gallons) discharged into waters of the United States and the State.
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`66.
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`The discharged material was “oil” within the meaning of Section 1001(23)
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`of OPA, 33 U.S.C. § 2701(23).
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`67.
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`The Houston Ship Channel is a “navigable water” of the United States
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`within the meaning of Section 1001(21) of OPA, 33 U.S.C. § 2701(21).
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`68.
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`The oil discharge polluted portions of the Houston Ship Channel, Galveston
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`Bay, the Gulf of Mexico, Matagorda Island, and the Texas coastline where it washed
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`ashore roughly between the collision site and Padre Island National Seashore.
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`69.
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`The oil discharge caused injury to, destruction of, loss of, or loss of use of
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`“natural resources” belonging to, managed by, held in trust by, appertaining to, or
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`otherwise controlled by the United States or the State within the meaning of Section
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`1001(20) of OPA, 33 U.S.C. § 2701(20), including coastal shoreline habitats, birds,
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`dolphins, other aquatic life, and recreational use.
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`70.
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`Plaintiffs have incurred costs in assessing injuries to natural resources
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`resulting from the oil spill and in their initial restoration planning.
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`71.
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`Pursuant to Section 1002(a) and (b)(2) of OPA, 33 U.S.C. § 2702(a) and
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`(b)(2), Kirby is liable to the United States and to the State for damages for injury to,
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`destruction of, loss of, or loss of use of natural resources, including the reasonable costs
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`of assessing such injury, destruction, loss, or loss of use resulting from the discharge of
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`oil from Kirby’s vessel as alleged in this Complaint.
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`REQUEST FOR RELIEF
`WHEREFORE, Plaintiffs respectfully request that the Court:
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`A.
`Award Plaintiffs a judgment against Defendant Kirby Inland Marine,
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`LP for all damages for injury to, destruction of, loss of, or loss of use of natural
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`resources, including reimbursement of Plaintiffs’ assessment and restoration
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`planning costs; and
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`B.
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`Award Plaintiffs such other and further relief as the Court deems just
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`and proper.
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`Case 3:21-cv-00335 Document 1 Filed on 11/30/21 in TXSD Page 14 of 16
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`Respectfully submitted,
`FOR THE UNITED STATES OF AMERICA:
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`TODD KIM
`Assistant Attorney General
`Environment and Natural Resources Division
`United States Department of Justice
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` s/ Jason T. Barbeau
`JASON T. BARBEAU
`Senior Trial Attorney (D.C. Bar No. 468200)
`Environmental Enforcement Section
`Environment and Natural Resources Division
`United States Department of Justice
`P.O. Box 7611, Ben Franklin Station
`Washington, DC 20044
`(202) 616-8908 (telephone)
`(202) 616-6584 (facsimile)
`jason.barbeau@usdoj.gov
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`JENNIFER LOWERY
`Acting United States Attorney
`Southern District of Texas
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`DANIEL DAVID HU
`Chief, Civil Division (Texas Bar No. 10131415)
`United States Attorney’s Office
`Southern District of Texas
`1000 Louisiana, Suite 2300
`Houston, TX 77002
`Phone: (713) 567-9518
`E-mail: daniel.hu@usdoj.gov
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`OF COUNSEL:
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`Amy Horner Hanley
`Senior Attorney Advisor
`U.S. Department of the Interior
`Office of the Solicitor
`1849 C Street, N.W.
`Washington, DC 20240
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`Corinna McMackin
`Attorney-Advisor
`Natural Resources Section
`NOAA General Counsel Office
`55 Great Republic Drive
`Gloucester, MA 01930
`
`FOR THE STATE OF TEXAS:
`
`
`
`
` KEN PAXTON
` Attorney General of Texas
`
` BRENT WEBSTER
` First Assistant Attorney General
`
`
`
`
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`
`
`
`
`
`
`
`
`
`
`
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`
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`
`
`
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`
`
` GRANT DORFMAN
` Deputy First Assistant Attorney General
`
`
`
`
` SHAWN COWLES
` Deputy Attorney General for Civil Litigation
`
` PRISCILLA M. HUBENAK
` Chief, Environmental Protection Division
`
`
`
`
` s/ David Terry*
`
` DAVID TERRY
`
` Assistant Attorney General
` Attorney-in-Charge
` State Bar No. 24079447
` Southern District Bar No. 3484820
` David.Terry@oag.texas.gov
`
`
` Office of the Attorney General of Texas
` Environmental Protection Division
` P.O. Box 12548, MC-066
` Austin, TX 78711-2548
` Telephone: 512-475-4152
` Facsimile: 512-320-0911
`
`
`
` COUNSEL FOR THE STATE OF TEXAS ON
`BEHALF OF THE TEXAS GENERAL LAND
`
`15
`
`
`
`

`

`Case 3:21-cv-00335 Document 1 Filed on 11/30/21 in TXSD Page 16 of 16
`
`OFFICE, THE TEXAS PARKS AND WILDLIFE
`DEPARTMENT, AND THE TEXAS COMMISSION
`ON ENVIRONMENTAL QUALITY
`
` *
`
` Counsel for the State of Texas provided consent for the placement of his electronic
`signature on this pleading.
`
`16
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`

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