Case 6:22-cv-00001 Document 1 Filed on 01/20/22 in TXSD Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`VICTORIA DIVISION
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`CIVIL ACTION NO. 6:22-cv-00001
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`§ § § § § § § § §
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`
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`LLOYD MICHAEL HAMILTON,
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`Plaintiff,
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`v.
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`CONOCOPHILLIPS CO. AND
`BURLINGTON RESOURCES OIL
`& GAS CO. LP,
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`Defendants.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Nature of the Case
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`1.
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`Plaintiff, Mr. Lloyd Hamilton, brings this action under the Endangered Species Act, 16
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`U.S.C. § 1531 et seq., seeking to protect an endangered cat, the jaguarundi, on his ranch near
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`Cuero, DeWitt County, Texas.
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`2.
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`1
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`1 Exemplar for illustration purposes.
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`1
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`3.
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`The Gulf Coast Jaguarundi is an endangered wild cat, which was placed on the Endangered
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`Species List in 1975 as part of a listing of 216 species and is considered endangered wherever it is
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`found in Texas.2 40 FR 44392, 44333.
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`4.
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`This action is of major significance in the conservation community as the jaguarundi had
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`been thought by some to be extinct in the United States since the 1980’s. The importance of the
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`presence of this extremely rare cat in the United States is a major moment for conservationists
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`responsible for our state and nation’s most threatened wildlife.
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`5.
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`In short, Defendants intend to use a drill pad of six to twelve acres in size, an access road
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`bulldozed through “ideal habitat,” and construct a pipeline and a power line corridor, on Plaintiff’s
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`land. Further, they intend to drill six to twelve oil and gas wells, then use high pressure equipment
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`to “frac” the wells, build production facilities including a several mile long pipeline and possibly
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`a compressor station to pressurize the natural gas in order to put it into a pipeline proposed to be
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`built.
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`6.
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`Plaintiff believes Defendants will seek in the future to bulldoze more pads in other areas
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`of “suitable habitat”3 elsewhere on the ranch in an area known as the “Deer Pasture.”
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`7.
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`Plaintiff does not seek to stop Defendants from drilling and producing oil and gas or
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`related reasonable and necessary activity, that is neither the goal nor purpose of this case. The
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`issue is the location of the proposed activities, the habitat modified or destroyed and disturbance
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`to the jaguarundis from the sound, light, and activity associated with the construction of pads,
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`pipelines, power lines, tanks, drilling, fracking, trucking, construction, and maintaining wells
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`in and near an area known as the “Deer Pasture.”
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`2 https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=A05H
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` ESA terminology for habitat important to the endangered animal.
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`2
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`8.
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`Plaintiff brings this action seeking a permanent injunction to protect the areas in which
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`jaguarundi have been seen repeatedly as reported by at least ten witnesses.
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`9.
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`Defendants previously drilled wells in the Deer Pasture on the southern boundary, drilling
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`in a direction from south to north to drain oil and gas under the Deer Pasture. Now Defendants
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`also insist they must be allowed to drill from the northern boundary of the Deer Pasture, drilling
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`north to south in areas in which jaguarundis have been seen according to sworn trial testimony
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`of hunters in the Deer Pasture.
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`10.
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`In an oil and gas law issues trial, Defendants stated in closing:
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`So you can fully credit the hunters. Yes, they saw
`whatever they saw. They saw a jaguarundi even, but
`it was in the past....4
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`...And I said the hunters believed what they saw
`and as I said -- and I'm saying to you, again, you
`can fully credit the hunters' testimony. They saw a
`jaguarundi back then when they saw it, and that's
`what I said I [sic] opening.5
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`11.
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`So, Defendants expressly agreed with the hunters’ testimony and told the state court jurors
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`during trial the hunters did actually see jaguarundis.
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`12.
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`Defendants have stated that they can still drill south to north and produce using locations
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`in an area already disturbed and in which jaguarundis have not been reported by anyone. However,
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`Defendants now insist they prefer to drill in a north to south direction in areas in which jaguarundis
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`have been seen in disregard of the endangered cat and the Endangered Species Act.
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`4 Mazzone Closing 66/16 – 66/18
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`5 Mazzone Closing 67/13 – 67/17
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`3
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`13.
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` Defendants’ project managers, Alisdair Farthing and his successor Duncan Thom,
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`estimate the difference between drilling north to south vs. south to north will result in only about
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`a 4% difference in production.
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`14.
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`However, rather than enjoying the potential benefit to Mr. Hamilton’s personal interest of
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`an extra 4% of oil and gas production royalties, he seeks to protect the wildlife and natural treasures
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`left to him by his father, who received it from his father, who received it from his father, going
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`back five generations of his family.
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`15.
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`To create an access road, Defendants bulldozed some habitat described by their own
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`environmental consultant as “ideal” for this endangered cat.
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`16.
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`Plaintiff seeks penalties payable to the United States government for a past violation of the
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`Endangered Species Act, and forward looking permanent injunctive relief that will protect the
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`endangered cats from further habitat destruction in the future, from excessive noise and light
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`disturbance from construction, drilling, fracking, power line corridors, pipeline construction,
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`compressor operations, trucking, operation of heavy equipment, and general disruption.
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`PARTIES
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`17.
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`18.
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`Plaintiff Lloyd Michael Hamilton resides near Cuero in DeWitt County, Texas.
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`Defendant ConocoPhillips Company is a Delaware corporation doing business in Texas
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`with its operational headquarters in Houston, Texas.
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`19.
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`It may be served through its registered agent:
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`United States Corporation Company
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`211 E. 7th Street
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`Suite 620
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`Austin, Texas 78701-3218.
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`20.
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`Defendant Burlington Resources Oil & Gas Company LP is a wholly owned subsidiary of
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`defendant ConocoPhillips Company, “Conoco”, and controlled by Conoco.
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`4
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`21.
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`Burlington Resources is a Delaware corporation transacting business in Texas with its
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`operational headquarters in Houston, Texas.
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`22.
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`Burlington Resources may be served through its registered agent:
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`Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company
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`211 E. 7th Street
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`Suite 620
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`Austin, Texas 78701-3218
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`VENUE
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`23.
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`The events giving rise to this action relate to protecting an endangered animal in DeWitt
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`County, Texas, which is in the Victoria Division of the Southern District of Texas.
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`24.
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`The past acts which are part of the basis for this complaint occurred in DeWitt County,
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`Texas, which is in the Victoria Division of the Southern District of Texas.
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`25.
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`Further, both defendants have their operational headquarters in Houston, Texas, which is
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`in the Southern District of Texas.
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`26.
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`27.
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`Therefore, venue is proper in this court pursuant to 28 U.S.C. § 1391.
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`Additionally, the Endangered Species Act provides venue is proper where the acts
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`constituting violations occurred. 16 U.S.C.A. § 1540 (3)(A) (“Any suit under this subsection may
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`be brought in the judicial district in which the violation occurs.”).
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`PERSONAL JURISDICTION OVER
`OUT-OF-STATE INCORPORATED DEFENDANTS
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`28.
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`The Court has specific jurisdiction as the past events and proposed future events made the
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`basis of this action arise from and relate to activity in DeWitt County, Texas, which is in this
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`division and district. Further, this Court has general personal jurisdiction over Defendants as the
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`corporations have their principal places of business in this state in Houston, Texas. See, Bristol-
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`5
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`Myers Squibb Co. v. Superior Court of California, San Francisco County, --- U.S.---, 137 S. Ct.
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`1773, 1779–80, 198 L. Ed. 2d 395 (2017).
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`FEDERAL QUESTION SUBJECT MATTER JURISDICTION
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`Plaintiff, Mr. Lloyd Hamilton, brings this action under the Endangered Species Act, 16
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`29.
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`U.S.C. § 1531 et seq. seeking to protect an endangered cat, the jaguarundi, on his ranch near Cuero
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`in DeWitt County, Texas.
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`30.
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`“The district courts shall have original jurisdiction of all civil actions arising under the
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`Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
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`31.
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`Plaintiff has issued the necessary prerequisite citizen suit notice of intent to sue and has
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`waited more than sixty days as required by the Endangered Species Act, 16 U.S.C. §1540(g)(1)(A).
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`THE AMERICAN HISTORY AND HERITAGE OF PROTECTING WILDLIFE
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`32.
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`"Defenders of the short-sighted men who in their greed and selfishness will, if permitted,
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`rob our country of half its charm by their reckless extermination of all useful and beautiful wild
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`things sometimes seek to champion them by saying the 'the game belongs to the people.' So it does;
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`and not merely to the people now alive, but to the unborn people. The 'greatest good for the greatest
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`number' applies to the number within the womb of time, compared to which those now alive form
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`but an insignificant fraction. Our duty to the whole, including the unborn generations, bids us
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`restrain an unprincipled present-day minority from wasting the heritage of these unborn
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`generations. The movement for the conservation of wild life and the larger movement for the
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`conservation of all our natural resources are essentially democratic in spirit, purpose, and method."
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`President Theodore Roosevelt, 19166
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`6 https://theodoreroosevelt.org/content.aspx?page_id=22&club_id=991271&module_id=339333
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`33.
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`Endangered Species Act Signing Statement of President Richard Nixon
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`December 28, 1973
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`I HAVE today signed S. 1983, the Endangered Species Act of 1973. At a time when Americans
`are more concerned than ever with conserving our natural resources, this legislation provides the
`Federal Government with needed authority to protect an irreplaceable part of our national heritage-
`-threatened wildlife.
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`This important measure grants the Government both the authority to make early identification of
`endangered species and the means to act quickly and thoroughly to save them from extinction. It
`also puts into effect the Convention on International Trade in Endangered Species of Wild Fauna
`and Flora signed in Washington on March 3, 1973.
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`Nothing is more priceless and more worthy of preservation than the rich array of animal life with
`which our country has been blessed. It is a many-faceted treasure, of value to scholars, scientists,
`and nature lovers alike, and it forms a vital part of the heritage we all share as Americans. I
`congratulate the 93d Congress for taking this important step toward protecting a heritage which
`we hold in trust to countless future generations of our fellow citizens. Their lives will be richer,
`and America will be more beautiful in the years ahead, thanks to the measure that I have the
`pleasure of signing into law today.
`Note: As enacted, S. 1983 is Public Law 93005 (87 Stat. 884).
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`7
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`The statement was released at San Clemente, Calif.
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`Richard Nixon, Statement on Signing the Endangered Species Act of 1973. Online by Gerhard
`Peters and John T. Woolley, The American Presidency Project7
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`PURPOSE AND POLICY OF THE ENDANGERED SPECIES ACT
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`34. 16 U.S.C.A. § 1531 Endangered Species Act
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`(a) Findings
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`The Congress finds and declares that--
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`(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as
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`a consequence of economic growth and development untempered by adequate concern and
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`conservation;
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`(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in
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`danger of or threatened with extinction;
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`(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical,
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`recreational, and scientific value to the Nation and its people;
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`(4) the United States has pledged itself as a sovereign state in the international community to
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`conserve to the extent practicable the various species of fish or wildlife and plants facing
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`extinction, pursuant to--
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`(A) migratory bird treaties with Canada and Mexico;
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`(B) the Migratory and Endangered Bird Treaty with Japan;
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`(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
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`(D) the International Convention for the Northwest Atlantic Fisheries;
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`(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;
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`7 https://www.presidency.ucsb.edu/node/255904
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`(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
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`(G) other international agreements; and
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`(5) encouraging the States and other interested parties, through Federal financial assistance and a
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`system of incentives, to develop and maintain conservation programs which meet national and
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`international standards is a key to meeting the Nation's international commitments and to better
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`safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.
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`(b) Purposes
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`The purposes of this chapter are to provide a means whereby the ecosystems upon which
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`endangered species and threatened species depend may be conserved, to provide a program for the
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`conservation of such endangered species and threatened species, and to take such steps as may be
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`appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of
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`this section.
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`(c) Policy
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`(1) It is further declared to be the policy of Congress that all Federal departments and agencies
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`shall seek to conserve endangered species and threatened species and shall utilize their authorities
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`in furtherance of the purposes of this chapter.
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`(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with
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`State and local agencies to resolve water resource issues in concert with conservation of
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`endangered species.
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`STANDING OF MR. HAMILTON TO BRING AN ESA CASE
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`35.
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`To satisfy Article III's standing requirements, the plaintiff must show (1) he has suffered
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`an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural
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`or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)
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`it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
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`decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180–
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`81, 120 S. Ct. 693, 704, 145 L. Ed. 2d 610 (2000).
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`36. The United States Supreme Court has recognized that the ESA's citizen suit provision is “an
`authorization of remarkable breadth” which Congress intended to be a central and integral part
`of the ESA's enforcement. Bennett v. Spear, 520 U.S. 154, 164–65 (1997) (“the obvious
`purpose of
`the [citizen suit provision]
`is
`to encourage enforcement by so-called
`‘private attorneys general’ ”). In enacting the ESA, Congress intentionally created a
`broad citizen suit provision to allow private enforcement to further the important statutory
`objectives of the Act. 16 U.S.C. § 1540(g)(1)(A) (authorizing a private right of action “to
`enjoin any person ... who is alleged to be in violation of any provision of this chapter or
`regulation issued under the authority thereof.”); see also Bennett, 520 U.S. at 164–65. As noted
`above, for pleading, general factual allegations of injury resulting from the defendant's conduct
`suffice, because on a motion to dismiss, the court presumes that the general allegations
`embrace those specific facts that are necessary to support the claim. Lujan, 504 U.S. at 561
`(citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
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`Friends of Lydia Ann Channel v. U.S. Army Corps of Engineers, 2016 WL 6876652 at *5 (S.D.
`Tex. 2016)(emphasis added).
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`37.
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`Plaintiff, Mr. Hamilton, is an owner of property used by jaguarundi. He has seen a
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`jaguarundi in the area sought to be protected.
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`38. Mr. Hamilton seeks to protect the endangered jaguarundi and the other animals and their
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`habitat as a caring steward of the wildlife.
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`39.
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`The relief requested in this action would protect the endangered jaguarundi he seeks to
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`protect from activity of Defendants.
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`40.
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`Thus, Mr. Hamilton satisfies the standing requirements of Article III and more specifically
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`the standing requirements of the Endangered Species Act.
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`ADDITIONAL FACTS
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`41.
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`At least nine eyewitnesses other than Mr. Hamilton have seen the jaguarundis of various
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`colors on the property sought to be protected.
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`42.
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`Just as humans have different hair colors, so do jaguarundis. Their color may be charcoal,
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`red, blond/yellow, and combinations such as red and black as seen in the photo at the beginning of
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`this complaint, which has a red head and charcoal colored body. Their color remains fixed for life.
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`So, a red jaguarundi always remains red. A charcoal jaguarundi always remains charcoal over its
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`life. A bi-colored jaguarundi remains so over its life. The sightings that have occurred over at
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`least ten-year period describe the different colors of jaguarundis leading to the conclusion that
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`multiple individuals of species are present. Also, the sightings of any wild cat are very rare by the
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`average observer. For at least nine or more different people to see these extremely rare cats over
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`a ten or more year period is evidence of how important this habitat is to the these animals and the
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`frequency with which they use it.
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`43.
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`Here are some representative videos showing jaguarundis smallish size, slightly bigger and
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`more robust than an average house cat, but with a distinctly longer body creating the appearance
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`of short legs. They also are known as “otter cats” due to their uniquely long bodies similar to
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`otters.
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`44.
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`45.
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`46.
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`Charcoal example: https://www.youtube.com/watch?v=Fb8mKpraZjk
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`Red jaguarundi example: https://www.youtube.com/watch?v=QR9tu-VB8xk
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`Defendants propose to build drill pads and conduct drilling in the northern half of the Deer
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`Pasture.
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`47. Without going into the details of their testimony, witnesses testified generally as follows.
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`48.
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`At least six hunters have testified under oath, subject to cross-examination by Defendants,
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`that they saw jaguarundis in the areas sought to be protected. None reported seeing jaguarundis
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`in the southern half of the Deer Pasture in areas where oil and gas drilling had occurred previously.
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`49.
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`Two of these witnesses, Mr. Paul Kesseler and Mr. Clayton Marcelle, are executives with
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`companies in the oil industry so have no question of being hostile to the oil industry.
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`50. Wayne Miller is a man that has spent 50+ years hunting and chasing cats with specially
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`trained hounds. He has testified that he has seen thousands of bobcats, thirty-one mountain lions,
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`and saw jaguarundis on two separate occasions. One of the two jaguarundi sightings was so close
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`and so clear, he could determine the cat was a male because he could see the scrotum. One of the
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`cats was crossing the road in the general area described by Mr. Hamilton and Ms. Williams near
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`the area where Conoco built the massive pad. His other sighting was farther down the road.
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`51.
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`Paul Kessler is a hunter. He testified that while hunting in the Deer Pasture, he saw a
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`jaguarundi.
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`52.
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`Jeff Kessler is a hunter. He testified that while hunting in the Deer Pasture, he saw a
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`jaguarundi.
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`53.
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`Clayton Marcelle is a hunter. He testified that while hunting turkeys in the spring turkey
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`season with his son, they saw a jaguarundi. He attempted to video the jaguarundi with his cell
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`phone.
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`54. Mike Bilberry is a hunter. He testified that while hunting in the Deer Pasture, he saw a
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`jaguarundi and observed it for approximately one hour with his $3,000 Swarovski binoculars.
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`55.
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`The sightings closest to already constructed oil and gas drill pads are at least 0.6 miles
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`away. This evidence indicates that the construction of the pads and related activities cause the cats
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`to stay at least 0.6 miles away.
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`56.
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`In the oil and gas law issues trial, Defendants stated in closing:
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`So you can fully credit the hunters. Yes, they saw
`whatever they saw. They saw a jaguarundi even, but
`it was in the past....8
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`...And I said the hunters believed what they saw
`and as I said -- and I'm saying to you, again, you
`can fully credit the hunters' testimony. They saw a
`jaguarundi back then when they saw it, and that's
`what I said I [sic] opening.9
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`57.
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`The Defendants consulted with the US Fish & Wildlife Service, “USFWS,” at least as early
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`as July, 2020, about jaguarundis on the Hamilton Ranch.
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`58.
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`The USFWS advised Conoco that the USFWS considered the reports of the witnesses
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`“credible.” USFWS followed up in writing to Defendants in very clear and unambiguous terms.
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`See, Exhibit 1, USFWS letter of July 29, 2020, letter to addressed to Defendant Conoco employee
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`Josh Ozment.
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`59.
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`The USFWS letter of July 29, 2020, shows that it also was sent to Matt Fox. Exhibit 1.
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`60. Mr. Matt Fox was the Executive Vice-President and Chief Operating Officer of Conoco.
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`He retired on May 1, 2021.10
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`61.
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`The USFWS clearly informed Conoco of “credible reports” of jaguarundi. USFWS
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`advised Conoco that if it were to avoid jaguarundi habitat, then it could utilize “Best Management
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`Practices,” also referred to as “BMP’s,” for working in areas near jaguarundi habitat.
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`
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`8 Mazzone Closing 66/16 – 66/18
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`9 Mazzone Closing 67/13 – 67/17
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`10 https://www.conocophillips.com/news-media/story/conocophillips-announces-matt-fox-to-retire-after-35-
`years-with-the-company/
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`62.
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`Such communications to Defendants are evidence of subjective knowledge, a “knowing”
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`mens rea.
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`63.
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`The inescapable conclusion is Defendants made a conscious, deliberate, “knowing”
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`decision with the knowledge of the highest-level corporate executives to proceed despite the
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`request of the USFWS to avoid jaguarundi habitat and to submit a “habitat conservation plan”
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`pursuant to Section 10 of the Endangered Species Act.
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`64.
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`Despite the direct communications to Defendants informing them of the presence of the
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`jaguarundis on the ranch and despite further admonition and requests from the USFWS not to
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`proceed with their plans, Defendants knowingly and intentionally disregarded this information and
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`these requests and proceeded to bring in heavy earth-moving equipment and began to construct a
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`massive drill pad by removing and leveling a substantial portion of a hill and thereby create a drill
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`pad rising 31’ above the land in an area in which Mr. Hamilton and others have seen jaguarundis.
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`65.
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`On August 29, 2020, Conoco employee Mr. Bill Pace was on site directing the hilltop
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`leveling and earth moving activities. Mr. Pace identified himself to Mr. Hamilton as the Conoco
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`manager in charge of the work. Mr. Pace wore a hard hat with a Conoco logo. As the work was
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`done under the direction of a managerial level employee and apparent agent of Conoco, the actual
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`destructive acts are the acts of the corporation.
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`66.
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`Based on the USFWS letter of July 29, 2020, sent to Mr. Matt Fox, the Executive Vice-
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`President and Chief Operating Officer, Plaintiff believes that Mr. Bill Pace was working at the
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`direction of higher-level executives of Conoco instructing him what to do. Plaintiff does not know
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`the names of these higher-level decision makers, other than Mr. Matt Fox, but Mr. Pace almost
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`certainly did not act alone on his own decision to conduct this work.
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`67.
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`Thus, the Court may fairly conclude that the highest-level executives of Conoco knew of
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`this situation and approved it going forward despite the presence of the endangered species, the
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`objections of Mr. Hamilton, and the written requests of the USFWS.
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`68.
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`Here are videos taken on August 29, 2020, of the hilltop removal and creation of the pad
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`constituting the past acts complained of as a past violation of the Endangered Species Act. Mr.
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`Hamilton had personally observed a jaguarundi in this immediate area in 2019 as did other
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`witnesses, Ms. Savannah Williams, and Mr. Wayne Miller.
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`69.
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`70.
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`https://www.youtube.com/watch?v=Vimr_uQO1JQ
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`https://www.youtube.com/watch?v=VI5hzSx1mrQ&list=PLqMMnDLuqPvd3DleVVU0l
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`jfHnUQAzrN53
`
`71.
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`https://www.youtube.com/watch?v=VeIE7C_JLLs&list=PLqMMnDLuqPvd3DleVVU0lj
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`fHnUQAzrN53&index=2
`
`72.
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`https://www.youtube.com/watch?v=pp0pxx7i5fQ&list=PLqMMnDLuqPvd3DleVVU0ljf
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`HnUQAzrN53&index=3
`
`73.
`
`https://www.youtube.com/watch?v=rZ9R5x1q-
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`Z4&list=PLqMMnDLuqPvd3DleVVU0ljfHnUQAzrN53&index=4
`
`74.
`
`75.
`
`76.
`
`77.
`
`78.
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`https://www.youtube.com/watch?v=QzJ99AWtXn8
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`https://www.youtube.com/watch?v=JYe42ov2cE4
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`https://www.youtube.com/watch?v=8mMOi0obyZo
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`https://www.youtube.com/watch?v=LJbGciwBM5E
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`Here is a side view of the result of Conoco’s acts from the parking area near Mr. Hamilton’s
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`front entry gate, an area in which jaguarundis have been seen by Mr. Hamilton, Ms. Williams, and
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`Mr. Miller.
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`15
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`Case 6:22-cv-00001 Document 1 Filed on 01/20/22 in TXSD Page 16 of 30
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`
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`79.
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`80.
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`Such “knowing violation” of the Endangered Species Act is an egregious act, which should
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`
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`be severely punished.
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`81.
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`USFWS sent another letter to Conoco on September 3, 2020, requesting it not proceed
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`further. See, Exhibit 2, September 3, 2020, USFWS to Mr. Sam Widmer, Conoco Senior
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`Regulatory Coordinator
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`82.
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`Conoco continued its activities undeterred, until a state court issued a temporary restraining
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`order.
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`83.
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`The decisions and actions made the basis of this complaint have been by persons employed
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`by Conoco on behalf of Conoco and the nominal holder of the lease, Burlington Resources.
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`16
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`Case 6:22-cv-00001 Document 1 Filed on 01/20/22 in TXSD Page 17 of 30
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`84.
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`Burlington Resources is a wholly owned subsidiary of and controlled by Conoco for the
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`benefit of Conoco.
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`85.
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`86.
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`Burlington Resources is not known to have any actual employees.
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`Conoco employees act on behalf of Conoco ostensibly through the rights of the oil and gas
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`lease previously obtained by Burlington Resources.
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`87.
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`Thus, while Burlington Resources rightly is a defendant and subject of the request for
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`injunctive relief, Conoco itself is the corporate wrongdoer, which should be punished and enjoined.
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`88.
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`The rights, duties, and alleged breaches of the lease agreements are subject to complex
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`state litigation under Texas oil and gas law and are not a part of this action.
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`89.
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`Conversely, the enforcement of the Endangered Species Act was not and is not a part of
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`the state court action.
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`90.
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`The state court zealously excluded any mention of the Endangered Species Act in the state
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`court proceeding, going as far as expressly ordering the parties and witnesses not to even use the
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`word “endangered” or even “protected” in the state court proceeding.
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`91.
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`So, a past wrong, a past violation, of the ESA is before the Court for civil enforcement and
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`presents a case or controversy ripe for decision by the Court.
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`92.
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`However, the greater driving force behind this action and the need for protection sought is
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`not only the past violation of the ESA, but the Defendants’ proposed future acts, overtly planned
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`and announced, of Defendants to bring in a large drilling rig several stories tall to drill wells, “frac”
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`the wells from this pad, the highest point in the immediate area, which causes horrendous loud
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`piercing sounds and bright night lighting up to a mile or more away.
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`93.
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`Defendants also intend to put a string of drill pads across the northern side of the Deer
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`Pasture in the future, where multiple witnesses, the hunters, have reported seeing jaguarundis.
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`17
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`Case 6:22-cv-00001 Document 1 Filed on 01/20/22 in TXSD Page 18 of 30
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`94.
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`The drilling, completion, and other work necessary to complete the wells in the locations
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`proposed by Defendants, pose an imminent risk of irreparable harm to the jaguarundis.
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`95.
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`Defendants also intend to build a pipeline on this land to connect the wells into their
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`distribution network miles away.
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`96.
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`Defendants also propose to clear brush through the Deer Pasture to build a miles long
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`electric supply line corridor to this and the other proposed pads.
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`97.
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`To push the product through the pipeline, Defendants may construct and operate a
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`compressor station on a permanent ongoing basis for years.
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`98.
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`Compressor stations also generate loud, piercing noise, which is offensive and highly
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`disruptive. Cats’ hearing is generally acknowledged to be more sensitive than human hearing.
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`99.
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`The drilling and fracking of the wells is so dangerous that OSHA has at least seven
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`advisories and rules specific to the hazards of fracking.
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`100. Excessively loud sound is such a risk from drilling rig activity that specialized businesses
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`provide noise control services specifically for drilling rig noise:
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`https://www.noisemonitoringservices.com/drilling-rig-noise-control/
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`101. A ripe and real case or controversy is before this Court.
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`102. All facts including all exhibits are incorporated by reference into each cause of action
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`without restating them in each cause of action.
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`103. Each cause of action is pled in the alternative, and also cumulatively.
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`104. Plaintiff reserves the right to an election of remedies.
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`18
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`Case 6:22-cv-00001 Document 1 Filed on 01/20/22 in TXSD Page 19 of 30
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`CAUSE OF ACTION 1
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`DEFENDANTS’ PAST
` VIOLATION OF SECTION 9
`OF THE ENDANGERED SPECIES ACT
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`105. All facts pled elsewhere are incorporated by reference.
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`106. The key provision forming the basis of this action is a violation of Section 9 of the
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`Endangered Species Act due to the destruction of “ideal” habitat to construct an access road to the
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`proposed pad and the destruction of habitat to construct the 31’ tall pad where witnesses had seen
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`jaguarundis.
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`107. The USFWS and expert environmental consultants dealing with ESA compliance issues
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`typically refer to sections of the Endangered Species Act by section numbers of the original bill
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`for shorthand reference rather than statutory or CFR citations.
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`See: https://fws.gov/endangered/laws-policies/esa.html; full text of the original Endangered
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`Species Act with section numbers as used by the agencies and consultants may be found here:
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`https://fws.gov/endangered/esa-library/pdf/ESAall.pdf
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`108. Defendants have already violated Section 9 of the Endangered Species Act by degrading
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`“suitable habitat” through habitat modification, noise disturbance, and human activity resulting in
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`significant disruption and impairment of feeding, breeding and sheltering behaviors of the Gulf
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`Coast Jaguarundi, Herpailurus11 yagouaroundi cacomitli in violation of the regulatory definitions
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`of