['PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. BROMWICH']

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PUBLIC EMPLOYEES FOR )
ENVIRONMENTAL RESPONSBILITY, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1067 (RBW) (DAR)
)
TOMMY P. BEAUDREAU, et al., 1 ) Consolidated with:
)
Defendants, ) Civil Action No. 10-1073
) Civil Action No. 10-1079
CAPE WIND ASSOCIATES, LLC, ) Civil Action No. 10-1238
)
Intervenor. )
____________________________________)
)
ALLIANCE TO PROTECT )
NANTUCKET SOUND, et al., )
)
Plaintiffs, )
)
v. )
)
SALLY JEWELL, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
)
TOWN OF BARNSTABLE, )
MASSACHUSETTS, )
)
Plaintiff, )
)
v. )
1
Individuals sued in their official capacity have been replaced in the case caption and throughout this memorandum
opinion in accordance with Federal Rule of Civil Procedure 25.
)
SALLY JEWELL, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
)
THE WAMPANOAG TRIBE OF GAY )
HEAD (AQUINNAH) )
)
Plaintiff, )
)
v. )
)
TOMMY P. BEAUDREAU, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
MEMORANDUM OPINION
This consolidated case comprises four sets of interrelated claims concerning several
administrative decisions made by federal agencies approving the construction of various aspects
of an offshore wind energy project in Nantucket Sound, which is the first project of its kind in
the United States. First, the Public Employees for Environmental Responsibility (“PEER”), the
Cetacean Society International, the Lower Laguna Madre Foundation, Californians for
Renewable Energy, Three Bays Preservation, the Alliance to Protect Nantucket Sound, and
several individuals 2 (collectively, the “PEER plaintiffs”) allege that defendants Tommy
2
The individual plaintiffs are Cindy Lowry of Portland, Maine; Barbara Durkin of Northboro, Massachusetts;
Martha Powers of West Yarmouth, Massachusetts; and Richard Largay of Cummaquid, Massachusetts.
2
Beaudreau, the Director of the United States Bureau of Ocean Energy Management (“BOEM”); 3
Sally Jewell, the Secretary of the United States Department of the Interior; Daniel Ashe, the
Director of the United States Fish and Wildlife Service (“FWS”); Penny Pritzker, the Secretary
of the United States Department of Commerce; Eileen Sobeck, the Assistant Administrator of the
National Marine Fisheries Service (“NMFS”); and Lieutenant General Thomas P. Bostick, the
United States Army Chief of Engineers and Commanding General of the United States Army
Corps of Engineers (“Corps of Engineers” or “Corps”) have violated the Administrative
Procedure Act (“APA”), 5 U.S.C. § 701 (2006); the Endangered Species Act (“ESA”), 16 U.S.C.
§§ 1531-1544 (2006), the Migratory Bird Treaty Act, 16 U.S.C. § 703 (2006); and the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h (2006). Second Amended
Complaint for Declaratory and Injunctive Relief, ECF No. 47, (“PEER Compl.”) ¶¶ 1, 97-111.
Second, the Town of Barnstable, Massachusetts, alleges that Secretary Jewell; the United States
Department of the Interior; the BOEM; Director Beaudreau; Admiral Robert J. Papp, Jr., the
Commandant of the United States Coast Guard; the United States Coast Guard; Lieutenant
General Bostick; and the Corps of Engineers have violated the APA; the Outer Continental Shelf
Lands Act (“Shelf Lands Act”), as amended, 43 U.S.C. §§ 1331-1356a (2012); the NEPA; the
Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241, 120 Stat. 516; the
3
As explained by the Court of Federal Claims,
In May 2010, the Secretary of the Interior announced that [the Minerals Management Service
(“MMS”)] would be split into three separate agencies: the Bureau of Safety and Environmental
Enforcement (BSEE), the Bureau of Ocean Energy Management (BOEM), and the Office of
Natural Resources Revenue (ONRR). In June 2010, MMS was renamed [the Bureau of Ocean
Energy Management, Regulation and Enforcement (“BOEMRE”)]. The revenue-collection
functions of BOEMRE were transferred to ONRR in October 2010, and BOEMRE was then
divided into two new agencies, BSEE and BOEM, in October 2011.
Century Exploration New Orleans, LLC v. United States, 110 Fed. Cl. 148, 154 n.7 (2013) (citations omitted). For
the sake of clarity, this Court will refer throughout this memorandum opinion to the MMS and the BOEMRE by the
Bureau’s current name: the BOEM.
3
Clean Water Act, 33 U.S.C. § 1344 (2006); and the Rivers and Harbors Act, 33 U.S.C. § 403(2006). First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 68
(“Barnstable Compl.”) ¶¶ 1, 175-225. Third, the Alliance to Protect Nantucket Sound and
several individuals 4 (collectively, the “Alliance plaintiffs”) allege that Secretary Jewell; the
United States Department of the Interior; Director Beaudreau; the BOEM; Admiral Papp; the
United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers violated the
APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594,
744-46 (codified at 43 U.S.C. § 1337(p) (2006)) (amending the Shelf Lands Act); the Coast
Guard and Maritime Transportation Act of 2006; the National Historic Preservation Act
(“Preservation Act”), 16 U.S.C. § 470f (2006); the Clean Water Act; and the Rivers and Harbors
Act. First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 69 (“Alliance
Compl.”) ¶¶ 1, 151-93. Finally, the Wampanoag Tribe of Gay Head (Aquinnah) alleges that
Director Beaudreau; Secretary Jewell; and the BOEM 5 violated the Preservation Act; the NEPA;
and the APA. Complaint for Declaratory and Injunctive Relief, 11-cv-1238, ECF No. 1
(“Wampanoag Compl.”) ¶¶ 1, 127-43.
Currently before the Court are three sets of cross-motions for summary judgment, as well
as the Plaintiffs’ Rule 56(e) Motion for Discovery Necessary to Explain Defendants’ Citation to
Documents Withheld as “Deliberative” and Other Extra-Record Assertions or, in the Alternative,
4
The individual plaintiffs are Ron Borjeson, Jeff Good, and James Keding of Plymouth, Massachusetts; Neil Good
and Robert Bussiere of Mashpee, Massachusetts; Cameron Dawson of East Falmouth, Massachusetts; Patricia J.
Dineen and David Moriarty of West Falmouth, Massachusetts; William H. Rypka of Sandwich, Massachusetts;
Richard Klein and Pauline K. Klein of Yorktown Heights, New York; Heather Rockwell of Marstons Mills,
Massachusetts; Barbara Jean Pennick of Marble Head, Massachusetts; Lou Gonzaga of Barnstable, Massachusetts;
Frank Caruso of Forestdale, Massachusetts; James R. Powell of West Tisbury, Massachusetts; Christopher Birdsey
of Hyannis, Massachusetts; and Crocker Snow, Jr. of Ipswich, Massachusetts.
5
For ease of reference, the Court refers to all the federal officials and agencies collectively as the “federal
defendants.”
4
to Strike, ECF No. 316 (“Pls.’ 56(e) Mot.”). Upon careful consideration of the parties’
submissions 6 and the several voluminous administrative records in this case, the Court grants
6
In addition to those documents already identified, the Court considered the following filings made by the parties:
(1) the PEER et al. Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment on Their Claims
Under the Endangered Species Act and Migratory Bird Treaty Act, ECF No. 171 (“Pls.’ ESA/MBTA Mem.”); (2)
the Federal Defendants’ Cross-Motion for Summary Judgment and Opposition to PEER Plaintiffs’ Motion for
Summary Judgment, ECF No. 205 (“Fed. Defs.’ ESA/MBTA Mem.”); (3) the Combined Memorandum of Law in
Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to the PEER
et al. Plaintiffs’ Motion for Summary Judgment, ECF Nos. 203, 204 (“Int. Def.’s ESA/MBTA Mem.”); (4) the
PEER et al. Plaintiffs’ Memorandum in Opposition to Federal Defendants’ and Intervenor Cape Wind Associates
LLC’s Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF Nos.
221, 222 (“Pls.’ ESA/MBTA Opp’n”); (5) the PEER et al. Plaintiffs’ Notice of Clarification, ECF No. 229; (6) the
Federal Defendants’ Reply in Support of Their Cross-Motion for Summary Judgment, ECF No. 231 (“Fed. Defs.’
ESA/MBTA Reply”); (7) the Intervenor Cape Wind Associates LLC’s Reply in Support of Its Motion for Summary
Judgment Regarding the PEER et al. Plaintiffs’ Claims, ECF No. 232 (“Int. Def.’s ESA/MBTA Reply”); (8) the
Memorandum of Points and Authorities in Support of Plaintiff the Wampanoag Tribe of Gay Head (Aquinnah)’s
Motion for Summary Judgment, ECF No. 177 (“Wampanoag Mem.”); (9) the Federal Defendants’ Memorandum in
Opposition to Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment [ECF No. 177] and in
Support of Federal Defendants’ Cross-Motion, ECF Nos. 208, 209 (“Fed. Defs.’ Wampanoag Mem.”); (10) the
Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary
Judgment and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment,
ECF Nos. 210, 211 (“Int. Def.’s Wampanoag Mem.”); (11) Plaintiff the Wampanoag Tribe of Gay Head
(Aquinnah)’s Memorandum in Opposition to Federal Defendants’ and Intervenor Cape Wind Associates LLC’s
Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF No. 223
(“Wampanoag Opp’n”); (12) the Federal Defendants’ Reply in Support of Summary Judgment on Claims Brought
by the Wampanoag Tribe of Gay Head (Aquinnah), ECF No. 226 (“Fed. Defs.’ Wampanoag Reply”); (13) the Reply
in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment Against the Wampanoag
Tribe of Gay Head (Aquinnah), ECF No. 228 (“Int. Def.’s Wampanoag Reply”); (14) the Plaintiffs’ Joint Motion for
Summary Judgment on all Remaining Claims and Memorandum in Support of Motion for Summary Judgment, ECF
No. 283 (“Pls.’ Remain Mem.”); (15) the Errata: Corrected Memorandum in Support of Motion for Summary
Judgment, ECF No. 286; (16) the Federal Defendants’ Memorandum in Opposition to Plaintiffs Alliance to Protect
Nantucket Sound et al.’s and Town of Barnstable’s Motions for Summary Judgment and in Support of Cross
Motions for Summary Judgment, ECF Nos. 300, 301 (“Fed. Defs.’ Remain Mem.”); (17) the Combined
Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in
Opposition to Plaintiffs’ Joint Motion for Summary Judgment on all Remaining Claims, ECF Nos. 303, 304 (“Int.
Def.’s Remain Mem.”); (18) the Plaintiffs’ Reply Memorandum of Law in Support of Their Motion for Summary
Judgment, ECF No. 317 (“Pls.’ Remain Opp’n”); (19) the Federal Defendants’ Reply in Support of Motion for
Summary Judgment on the Claims Brought by Plaintiffs Alliance to Protect Nantucket Sound et al. and Town of
Barnstable, ECF No. 330 (“Fed. Defs.’ Remain Reply”); (20) the Reply in Support of Cape Wind Associates LLC’s
Motion for Summary Judgment and in Opposition to Plaintiffs’ Joint Motion for Summary Judgment on all
Remaining Claims, ECF No. 328 (“Int. Def.’s Remain Reply”); (21) the Errata: Corrected Reply in Support of
Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment, ECF No. 329; (22) the Federal
Defendants’ Opposition to Plaintiffs’ Rule 56(e) Motion for Discovery or, in the Alternative, to Strike, ECF No. 319
(“Fed. Defs.’ 56(e) Opp’n”); (23) Intervenor Cape Wind Associates LLC’s Opposition to Plaintiffs’ Rule 56(e)
Motion for Discovery and Motion to Strike, ECF No. 320 (“Int. Def.’s 56(e) Opp’n”); (24) the Plaintiffs’ Reply to
Defendants’ Oppositions to Plaintiffs’ Motion for Discovery or, in the Alternative, to Strike, ECF No. 321 (“Pls.’
56(e) Reply”); (25) the Brief Amicus Curiae of American Bird Conservatory in Support of the PEER et al.
Plaintiffs’ Motion for Summary Judgment, ECF No. 306; (26) the Amicus Curiae Brief of the National Trust for
Historic Preservation in Support of the Joint Motion for Summary Judgment Filed by the Alliance to Protect
Nantucket Sound, et al., ECF No. 307; (27) the [Proffered] Brief Amicus Curiae of Whale and Dolphin
Conservation (North America), ECF No. 308; (28) the Amicus Curiae Brief of the Cape Cod Marine Trades
(continued . . . )
5
partial summary judgment to each party as outlined below, and the Court further denies the
plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike.
I. BACKGROUND
An initial overview of several statutes is necessary to provide context for the plaintiffs’
claims in this litigation.
A. Statutory Background
1. The ESA
The ESA is “the most comprehensive legislation for the preservation of endangered
species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).
Congress designed the ESA “to save from extinction species that the Secretary of the Interior
designates as endangered or threatened.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great
Or., 515 U.S. 687, 690 (1995). With the exception of certain insects, the ESA defines an
“endangered species” as “any species which is in danger of extinction throughout all or a
significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened species” is defined as “any
species which is likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range.” Id. § 1532(20). The ESA generally prohibits the taking
of an endangered or threatened species, id. § 1538(a)(1)(B)-(C), and the term “take” is defined as
(. . . continued)
Association, Inc. and Massachusetts Fishermen’s Partnership, Inc. in Support of a Selected Aspect of Plaintiffs’
Motion for Summary Judgment, ECF No. 309; (29) the Amicus Curiae Brief of the National Trust for Historic
Preservation in Support of the Motion for Summary Judgment Filed by the Wampanoag Tribe of Gay Head
(Aquinnah), ECF No. 186; (30) the Memorandum of the Conservation Law Foundation, the Natural Resources
Defense Council, and Mass Audubon in Support of Defendants’ Motions for Summary Judgment and in Opposition
to PEER et al. Plaintiffs’ Motion for Summary Judgment on Their Claims Under the Endangered Species Act and
Migratory Bird Treaty Act and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah) Motion for
Summary Judgment, ECF No. 212; and (31) the Memorandum of the Conservation Law Foundation, the Natural
Resources Defense Council, and Mass Audubon in Support of Defendants’ Motion for Summary Judgment and in
Opposition to Plaintiffs’ Motion for Summary Judgment on all Remaining Claims, ECF No. 302; as well as the
parties’ notices of supplemental authority and replies thereto, ECF Nos. 227, 298, 305, 358, 360, 363, 364, 365, 367,
368, and 369.
6
“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct,” id. § 1532(19). However, the Secretary of the Interior or the
Secretary of Commerce “may permit,” under certain circumstances, “any taking otherwise
prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity.” Id. § 1539(a)(1)(B).
The Secretary of the Interior and the Secretary of Commerce have delegated the authority
to administer the ESA to the FWS and the NMFS. 50 C.F.R. § 402.01(b). Section 7(a)(2) of the
ESA mandates that
[e]ach Federal agency shall, in consultation with and with the assistance of the
[FWS or NMFS, as appropriate], insure that any action authorized, funded, or
carried out by such agency . . . is not likely to jeopardize the continued existence
of any endangered species or threatened species . . . .
16 U.S.C. § 1536(a)(2). In carrying out their duties under § 7, agencies “shall use the best
scientific and commercial data available.” Id.
An agency action “jeopardize[s] the continued existence” of a species where the action
“reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of
both the survival and recovery of a listed species in the wild by reducing the reproduction,
numbers, or distribution of that species.” 50 C.F.R. § 402.02. Accordingly, “[e]ach Federal
agency shall review its actions at the earliest possible time to determine whether any action may
affect listed species,” and “[i]f such a determination is made, formal consultation” with the FWS
and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the
FWS and/or the NMFS to review the proposed agency action and prepare a “biological opinion”
that includes “[a] detailed discussion of the effects of the action on listed species,” and also
render an “opinion on whether the action is likely to jeopardize the continued existence of a
listed species.” Id. §§ 402.14(h)(2)-(3). Where the biological opinion concludes that an agency
7
action may result in the incidental taking of a listed species, the FWS and/or NMFS must
“provide with the biological opinion a statement concerning incidental take that” specifies both
“the amount or extent[] of such incidental taking on the species,” as well as “terms and
conditions . . . that must be complied with by the Federal agency or any applicant to implement”
certain specified “reasonable and prudent measures” designed to minimize the impact of the
incidental taking. Id. §§ 402.14(i)(1)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such
“[r]easonable and prudent measures, along with the terms and conditions that implement them,
cannot alter the basic design, location, scope, duration, or timing of the action and may involve
only minor changes.” Id. § 402.14(i)(2).
2. The Migratory Bird Treaty Act
The Migratory Bird Treaty Act, unless otherwise “permitted by regulations,” makes it
“unlawful at any time, by any means or in any manner, to . . . take[7] . . . kill, [or] attempt to take
. . . or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . included in” certain
bilateral treaties 8 adopted for the protection of migratory birds. 16 U.S.C. § 703(a). Violations
of the Act can result in criminal sanctions. See id. §§ 706-707. However, “the Secretary of the
Interior is authorized,” upon consideration of certain factors, “to determine when, to what extent,
if at all, and by what means . . . to allow . . . [the] taking . . . [or] killing” of protected migratory
birds. Id. § 704(a); see also 50 C.F.R. § 21.11 (addressing the requirement for permits to, among
other things, take or kill migratory birds). The FWS, which implements and enforces the
7
The term “take” is not defined in the Migratory Bird Treaty Act. However, the implementing regulations of the
Act provide that, among other things, “[t]ake means to . . . wound[] [or] kill.” 50 C.F.R. § 10.12.
8
The treaties comprise bilateral conventions between the United States and Great Britain; the United States and
Mexico; the United States and Japan; and the United States and Russia, each concerning the protection of migratory
birds. 16 U.S.C. § 703(a); see also 50 C.F.R. § 10.13(a).
8
Migratory Bird Treaty Act on behalf of the Secretary of the Interior, 50 C.F.R. § 10.1, maintains
a list of protected migratory birds as outlined in the Act’s implementing regulations, id. § 10.13.
In addition to the protections outlined in the Migratory Bird Treaty Act,
[o]n January 10, 2001, President Clinton signed Executive Order (EO) 13186,
[which addresses the] “Responsibilities of Federal Agencies to Protect Migratory
Birds”. One of the requirements of E.O. 13186 is that each Federal agency taking
actions that have, or are likely to have, a measurable negative effect on migratory
bird populations is directed to develop and implement a [Memorandum of
Understanding] with the FWS that shall promote the conservation of migratory
bird populations.
77 Fed. Reg. 60,381, 60,382 (Oct. 3, 2012); see also Exec. Order No. 13,186, 66 Fed. Reg. 3853(Jan. 10, 2001), reprinted in 16 U.S.C. § 701 app.
3. The NEPA
Under the NEPA, federal agencies must, “‘to the fullest extent possible[,]’ . . . prepare an
environmental impact statement (EIS) for ‘every . . . major Federal actio[n] significantly
affecting the quality of the human environment.’” 9 Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 15-16 (2008) (quoting 42 U.S.C. § 4332(2)(C)) (alterations in original). “An agency
is not required to prepare a full EIS if it determines—based on a shorter environmental
assessment (EA)—that the proposed action will not have a significant impact on the
environment.” Id. at 16 (citing 40 C.F.R. §§ 1508.9(a), 1508.13). The NEPA established the
Council on Environmental Quality, see 42 U.S.C. § 4342, which has the “‘authority to issue
9
The regulations interpreting the NEPA provide:
Human environment shall be interpreted comprehensively to include the natural and physical
environment and the relationship of people with that environment. . . . This means that economic
or social effects are not intended by themselves to require preparation of an environmental impact
statement. When an environmental impact statement is prepared and economic or social and
natural or physical environmental effects are interrelated, then the environmental impact statement
will discuss all of these effects on the human environment.
40 C.F.R. § 1508.14.
9
regulations interpreting’” the Act, New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 476
(D.C. Cir. 2012) (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004)); see
generally 40 C.F.R. pts. 1500-1508 (regulations interpreting the NEPA).
4. The Preservation Act
Congress enacted the Preservation Act in 1966, finding that the preservation of the
nation’s “heritage is in the public interest so that its vital legacy of cultural, educational,
aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future
generations of Americans.” 16 U.S.C. § 470(b)(4). Under the Preservation Act, Congress
authorized the Secretary of the Interior to create and “maintain a National Register of Historic
Places composed of districts, sites, buildings, structures, and objects significant in American
history, architecture, archeology, engineering, and culture.” Id. § 470a(a)(1)(A).
To protect identified historic sites, Section 106 of the Preservation Act provides that a
federal agency undertaking action on a historic site or licensing such an undertaking must, prior
to the
approval of the expenditure of any Federal funds on the undertaking . . . [,] take
into account the effect of the undertaking on any district, site, building, structure
or object that is included in or eligible for inclusion in the National Register. The
head of any such Federal agency shall afford the Advisory Council on Historic
Preservation . . . a reasonable opportunity to comment with regard to such
undertaking.
Id. § 470f. The Advisory Council has promulgated regulations that set forth the procedures that
federal agencies must follow to comply with Section 106. Id. § 470s. The regulations in turn
require that federal agencies engage in “consultation . . . [with] other parties with an interest in
the effects of the undertaking on historic properties,” 36 C.F.R. § 800.1(a), including “any Indian
Tribe . . . that attaches religious and cultural significance to” properties included on the National
10
Register as a result of their “traditional religious and cultural importance to [the] Indian Tribe,”
16 U.S.C. § 470a(d)(6); see also 36 C.F.R. §§ 800.2(c), 800.3(f)(2).
The consultation process requires federal agencies to: (1) identify the historic properties
that might be affected by the undertaking, 36 C.F.R. § 800.4; (2) evaluate the impact of any
adverse effects on those properties, id. § 800.5; and (3) “develop and evaluate alternatives or
modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on”
those properties, id. § 800.6; see also Corridor H Alts., Inc v. Slater, 166 F.3d 368, 370 (D.C.
Cir. 1999). When the required consultation has concluded, the agency and consulting parties
may sign a memorandum of agreement that “shall govern the undertaking and all of its parts.”
See § 800.6(c). The memorandum of agreement also “evidences the agency[’s] . . . compliance
with [S]ection 106.” Id. However, if “[a]fter consulting to resolve adverse effects pursuant to 36
C.F.R. § 800.6(b)(2), the agency . . . may determine that further consultation will not be
productive and terminate consultation. Any party that terminates consultation shall notify the
other consulting parties and provide them the reasons for terminating in writing.” Id. § 800.7(a).
Where the agency decides to terminate consultation, the agency “shall request that the
[Advisory] Council” provide comments and shall also “notify all consulting parties of the
request.” Id. § 800.7(a)(1). “The head of the agency shall take into account the [Advisory]
Council’s comments in reaching a final decision on the undertaking.” Id. § 800.7(c)(4).
5. The Shelf Lands Act
The Shelf Lands Act accords the United States jurisdiction over the “the outer
Continental Shelf,” 42 U.S.C. § 1333(a), which is defined as “all submerged lands lying seaward
11
and outside the area of lands beneath navigable waters as defined in section 1301 of this title,[10]
and of which the subsoil and seabed appertain to the United States and are subject to its
jurisdiction and control.” 43 U.S.C. § 1331(a). The Shelf Lands Act provides that the laws of
the United States apply not only to the outer Continental Shelf, but also “to the subsoil and
seabed of the outer Continental Shelf and to all . . . installations and other devices permanently or
temporarily attached to the seabed, which may be erected thereon.” Id. § 1333(a). As amended
by the Energy Policy Act of 2005, Pub. L. No. 109-58, 110 Stat. 594, the Shelf Lands Act
provides that “[t]he Secretary [of the Interior], in consultation with the Secretary of the
Department in which the Coast Guard is operating and other relevant departments and agencies
of the Federal Government, may grant a lease, easement, or right-of-way on the outer
Continental Shelf for activities” that, among other things, “produce or support production,
transportation, or transmission of energy from sources other than oil and gas,” including
renewable energy sources. Id. § 1337(p)(1)(C); see 30 C.F.R. §§ 585.100-.101. “The Secretary
of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to
regulate activities under” the Shelf Lands Act concerning such activities. 30 C.F.R. § 585.100.
See generally id. §§ 585.100-.1019 (regulations concerning leases, easements, and rights-of-way
for non-gas and non-oil related activities on the outer Continental Shelf).
6. The Coast Guard and Maritime Transportation Act of 2006
The Coast Guard Maritime Transportation Act of 2006, which was enacted on July 11,
2006, imposes specific duties on the Commandant of the Coast Guard with respect to offshore
wind energy projects in the Nantucket Sound. See Pub. L. No. 109-241, § 414, 120 Stat. 516,
540. Section 414 of the Act reads in its entirety:
10
The Shelf Lands Act generally defines “lands beneath navigable waters” as all underwater land extending outward
from the coastline of the United States that is subject to the laws of the United States. See 43 U.S.C. § 1301(a).
12
Sec. 414. Navigational Safety of Certain Facilities.
(a) Consideration of Alternatives.—In reviewing a lease, easement, or right-of-
way for an offshore wind energy facility in Nantucket Sound under section 8(p) of
the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), not later than 60 days
before the date established by the Secretary of the Interior for publication of a
draft environmental impact statement, the Commandant of the Coast Guard shall
specify the reasonable terms and conditions the Commandant determines to be
necessary to provide for navigational safety with respect to the proposed lease,
easement, or right-of-way and each alternative to the proposed lease, easement, or
right-of-way considered by the Secretary.
(b) Inclusion of Necessary Terms and Conditions.—In granting a lease, easement,
or right-of-way for an offshore wind energy facility in Nantucket Sound under
section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), the
Secretary shall incorporate in the lease, easement, or right-of-way reasonable
terms and conditions the Commandant determines to be necessary to provide for
navigational safety.
Id. at 540.
B. Factual Background 11
At the center of this consolidated civil action is the Nantucket Sound (the “Sound”), a
body of water located off the coast of Massachusetts. See CW65034. The Sound serves many
functions, including the home to various endangered species, a commercial and recreational
waterway, and a source of cultural and religious identity. See CW65356, CW111969-78.
Intervenor-defendant Cape Wind, with the approval of the federal defendants, also seeks to make
the Sound the location of the nation’s first offshore wind energy project. See CW201584.
11
Three sets of administrative record documents were submitted to the Court—one for each set of cross-motions for
summary judgment. See Notice of Submission of Jointly Prepared Appendix of Administrative Record Pursuant to
Local Civil Rule 7(N), ECF No. 234 (index to administrative record concerning claims by the Wampanoag Tribe of
Gay Head (Aquinnah)); Notice of Filing of Appendix, ECF No. 237 (index to administrative record concerning
ESA and Migratory Bird Treaty Act claims); Notice of Filing of Appendix, ECF No. 333 (index to administrative
record concerning plaintiffs’ remaining claims). For ease of reference, the Court refers in this Memorandum
Opinion to the Bates numbers assigned to the administrative record documents as outlined in the index for each
administrative record. The Bates numbers consist of alpha-numeric references. Bates numbers beginning with (1)
“CW” refer to documents from the BOEM; (2) “FWS” refer to documents from the FWS; (3) “NMFS” refer to
documents from the NMFS; and (4) “USCG” refer to documents from the Coast Guard.
13
1. The Cape Wind Project
The Cape Wind project has been described as “the first of its kind in the United States
and is one of the largest offshore wind projects in the world.” CW201584. Cape Wind “began
preliminary work on siting and designing a wind energy project in 2000,” NMFS1413, and
proposed an offshore wind energy park, to be located on the outer Continental Shelf on
Horseshoe Shoal 12 in the Sound, CW65037. As described in the Federal Register,
[t]he proposed wind park would consist of 130 offshore wind turbine generators
arranged to maximize the park’s maximum potential electric output of
approximately 454 megawatts. The wind-generated electricity from each of the
turbines would be transmitted via a 33 kilovolt submarine transmission cable
system to a centrally located electric service platform. This platform would
transform and transmit electric power to the Cape Cod mainland (12+ miles) via
two 115 kilovolt lines, where it would ultimately connect with the existing power
grid.
71 Fed. Reg. 30,693, 30,693 (May 30, 2006); see also, e.g., NMFS1415-22 (providing a more
detailed description of the Cape Wind’s project proposal). Prior to its construction, and as
discussed below, the Cape Wind project was and is subject to several regulatory and
administrative procedures and approvals.
2. The Regulatory Approval Process
“In November 2001, [Cape Wind] filed a permit application with the [Corps of
Engineers], New England District, under section 10 of the Rivers and Harbors Act of 1899 . . . .”
71 Fed. Reg. at 30,693. The Corps issued a draft EIS in 2004. See CW142751. Upon the
passage of the Energy Policy Act of 2005, the BOEM took over “as a lead agency for
coordinating the permitting process with other Federal agencies.” 71 Fed. Reg. at 30,693;
12
A “shoal” is “a sandbank or sandbar that makes the water shallow.” See Merriam-Webster Dictionary, available
at http://www.merriam-webster.com/dictionary/shoal (last visited Mar. 4, 2014).
14
CW111956. As outlined below, the BOEM subsequently initiated required consultation with
various agencies.
a. Formal Consultation Under Section 7 of the ESA
i. The FWS’s Biological Opinion and Incidental Take Statement
The BOEM consulted informally with the FWS from November 17, 2005, until May 19,
2008, when the BOEM requested initiation of formal consultation. See FWS92-96. The FWS
issued its biological opinion on November 21, 2008. See FWS1. The biological opinion “only
applies to the roseate tern and piping plover,” two types of migratory birds, “as listed species
under the ESA.” FWS3. The FWS reached the following conclusion:
After reviewing the current status of the Atlantic Coast piping plover and the
northeastern population of the roseate tern, the environmental baseline for the
action area, and all effects of the proposed Cape Wind Project, it is the Service’s
biological opinion that the project is not likely to jeopardize the continued
existence of these species. No critical habitat has been designated for the Atlantic
Coast breeding ranges of these species; therefore, none will be affected.
FWS73. The FWS included with its biological opinion an incidental take statement authorizing
the taking of “four to five roseate terns per year (80-100 terns over the 20-year life of the
project)” and “a maximum of 10 piping plovers . . . over the life of the [project].” FWS75. With
respect to the taking of piping plovers, the FWS added:
Because the formulation of mortality estimates is very complex, new empirical
information demonstrating one or more of the following circumstances will
constitute new evidence that estimated take of piping plovers has been exceed:
1. Annual flights across the project area exceed the total number of pairs
breeding in and north of the action area. This is equivalent to approximately
18% of migration flights by adults and young of the year (pairs x 5.5).
2. More than 20% of flights occur at rotor height.
3. Avoidance rates <0.95.
15
Id. The FWS also “estimate[d] that implementation of the Bird Island restoration project[13] will
offset any potential roseate tern mortality that may occur from the Cape Wind Project.” Id.
The incidental take statement included terms and conditions necessary to implement
reasonable and prudent measures pursuant to the ESA. See FWS75-78. Among these measures
was a discussion of an operational adjustment that the FWS had considered but ultimately
decided against:
The [FWS] . . . considered as a reasonable and prudent measure[] an operational
adjustment to the wind facility that would require the temporary and seasonal shut
down of the [wind turbine generators] through the feathering of the rotors.
Feather of the rotors causes them to face the wind and stop spinning, and would
reduce the risk of collision by roseate terns and, to a limited extent, migrating
piping plovers transiting the Horseshoe Shoal project area. Although the [FWS]
considered that result in this “operational adjustment” would be based on weather
and day light parameters that reduce visibility, and would be limited in time to
seasons when plovers and peak numbers of roseate terns are expected to be
present (a few weeks in early to mid-May and a few weeks in late August to mid-
September), it was determined by [the BOEM] and [Cape Wind] . . . to not be
reasonable and prudent based on the following:
The operational adjustment (shut down of the turbine rotors to a neutral position)
is not reasonable because it does not meet the [reasonable and prudent measure]
regulatory definition as a “reasonable measure” as it modifies the scope of the
project in a manner that is adverse to the project’s stated purpose and need, that is
to make a substantial contribution to enhancing the region’s electrical reliability
and achieving the renewable energy requirements under the Massachusetts and
regional renewable portfolio standards. [The BOEM] considers that this may
involve more than a “minor change” (50 C.F.R. § 402.14(i)(2)[)].
[The BOEM] has also determined that the [reasonable and prudent measure] is not
reasonable because the uncertainty regarding the project’s ability to generate
electricity during the two time frames (late April to mid-May and late August to
mid-September) reduces the project’s predicted potential electrical output in a
13
According to the FWS biological opinion, “the Bird Island restoration project is to restore and repair the existing
stone revetment in its current location on the island and to use clean dredged material to raise the elevation of 0.4
acre of habitat landward of the revetment.” FWS67. The FWS opined that the “project is likely to have measurable
beneficial effects for the roseate tern by preventing further loss of existing essential nesting habitat, by creating
additional suitable nesting habitat, and by increasing the carrying capacity of the island which is the most productive
breeding site for the species in Buzzards Bay.” Id. The FWS acknowledged that “this project may not be completed
. . . until some point after the Cape Wind Project is constructed.” FWS67-68.
16
significant enough way to have a deleterious effect on anticipated revenues,
financing and power purchasing agreements.
Furthermore, [the BOEM] indicates that the proposed timeframes for the
operational adjustment, although limited by season, visibility and time of day,
constitute peak period hours, when the energy supplied to the [Independent
System Operator of] New England (the regional transmission organization) has
greater market value. Therefore, the [reasonable and prudent measure] may not
be prudent because economic cost makes this measure not feasible for project
proponents to implement.
FWS76-77 (citations omitted).
ii. The NMFS’s Biological Opinion and Incidental Take
Statement
The “BOEM and [the] NMFS began discussing consultation requirements in January
2006.” NFMS1414. The “NMFS provided technical assistance to [the] BOEM as they drafted a
new [draft EIS][14] and draft [biological assessment].” Id. The “BOEM provide[d] NMFS with a
final [biological assessment] and request for formal consultation in a letter dated May 19, 2008,”
and “[c]onsultation was initiated on May 22, 2008.” Id. The NMFS issued its biological opinion
on November 18, 2008 (“2008 biological opinion”), which
concluded that the proposed action was likely to adversely affect but was not
likely to jeopardize the continued existence of loggerhead, Kemp’s ridley,
leatherback or green sea turtles. Additionally, [the] NMFS concluded that the
proposed action was not likely to adversely affect right, humpback or fin whale
species. Because no critical habitat is designated in the action area, none will be
affected by the proposed action. The [biological] [o]pinion included an Incidental
Take Statement exempting the incidental take by acoustic harassment of 3-7 sea
turtles during each 4 hour pile driving event (130 events total) and 13-28 sea
turtles during the geophysical survey.
....
In the spring of 2010, over 90 North Atlantic right whales were observed in
Rhode Island Sound and nearby waters, including areas to be transited by project
vessels originating from the staging site at Quonset, [Rhode Island]. While right
14
The NMFS had previously “provided comments on [a] [draft EIS] [prepared by the Corps of Engineers] and
indicated to the [Corps] that consultation pursuant to Section 7 of the ESA would be necessary for the proposed
project.” NMFS1414.
17
whales were not sighted in the area proposed for construction (i.e., the project
footprint on Horseshoe Shoal within Nantucket Sound), right whales were
observed in nearby areas and along the route that would be used by vessels
moving between the project footprint and the project staging area near Quonset,
[Rhode Island]. When compared to sightings in previous years, these sightings
represent a higher than average number of right whales in the action area and
nearby areas. As noted in [the] BOEM’s July 13, 2010 letter to [the] NMFS,
these sightings represent new information that when analyzed may reveal effects
of the action that may affect listed species in a manner or to an extent not
previously considered. As such, [the] NMFS concurred with [the] BOEM’s
determination that reinitiation of consultation was appropriate; specifically, to
consider the new information on the presence of right whales in the action area.
Consultation was reinitiated on July 26, 2010.
NMFS1414-15. The reinitiation of consultation culminated in a second biological opinion,
which the NMFS issued on December 30, 2010 (“2010 biological opinion”). NMFS1413. The
2010 biological opinion reached the same conclusions as the first opinion about the project’s
effects on listed whales and sea turtles. See NMFS1534. The NMFS issued with the 2010
biological opinion a second incidental take statement for listed sea turtles, which authorized the
same level of take as the prior incidental take statement. See NMFS1536.
b. The BOEM and FWS Consultation Regarding the Impact of the Cape
Wind Project on Migratory Birds
The BOEM’s final EIS 15 notes that “[a]vian resources that are likely to occur in the area
of the proposed action are protected under the Migratory Bird Treaty Act.” See CW157080
(citing also Executive Order 13,186). “From March 2002 through September 2006, aerial, boat,
and radar surveys were conducted by [Cape Wind]. Additionally, the [Massachusetts Audubon
Society] conducted aerial and boat surveys from August 2002 through September 2004.” Id.Cape Wind and the Massachusetts Audubon Society “collectively flew 125 systematic aerial
surveys to document avian species and distributions in Nantucket Sound,” and the surveys took
15
The final EIS, which was prepared pursuant to the NEPA and the Shelf Lands Act, is discussed in further detail
below.
18
place “during the daytime throughout different seasons from March 2002 through March 2006.”
CW157081; see also CW66154 (tables summarizing survey results). “A total of 17 boat surveys
were conducted from May 2002 [through] March 2005 during the same study periods as the
aerial surveys,” and Cape Wind “also conducted radar surveys during the spring and fall
migration periods.” CW157081. The BOEM concluded that the existing surveys were sufficient
to inform its final EIS. See CW67697-67770 (responding to comments suggesting that the
BOEM obtain additional information about the project’s impacts on migratory birds).
During the course of the Section 7 consultation, the FWS
recommended several studies to more fully assess the project’s impacts . . . on
migratory birds. Certain information was collected, and some was not. While
they would have generated information useful to assessment of migratory birds
generally, the unimplemented studies would not necessarily yield information that
would have significantly addressed the uncertainties in the analysis of impacts to
the roseate tern and piping plover specifically.
FWS4. The FWS biological opinion did not specifically address other migratory birds not listed
in the ESA. Id. However, one of the terms and conditions of the FWS biological opinion
requires the BOEM, Cape Wind, and the FWS to “coordinate in the development of specific pre-
and post-construction monitoring protocols . . . for [an] Avian and Bat Monitoring Framework
for the Cape Wind Proposed Offshore Wind Facility.” FWS77.
On June 4, 2009, the BOEM and the FWS signed a Memorandum of Understanding
pursuant to section 3 of Executive Order 13,186. CW242438. The Memorandum “identifies
specific areas in which cooperation between the agencies would substantially contribute to the
conservation and management of migratory birds and their habitats.” Id. Both agencies also
reviewed drafts of the Avian and Bat Mitigation and Monitoring Plan prepared by Cape Wind.
See CW242441. “The monitoring plan was developed in coordination with [the BOEM and the
FWS] . . . and includes several monitoring requirements as a result of previous regulatory
19
review,” including the required pre- and post-construction monitoring. CW237369. The lease
for the Cape Wind project, which was issued by the BOEM on October 6, 2010, see CW119269;
CW119275, states that the monitoring plan is “mandatory,” CW119314, and the BOEM also
conditioned approval of Cape Wind’s Construction and Operation Plan “on an acceptable Avian
and Bat Monitoring Plan,” CW119704. 16
c. The NEPA and Shelf Lands Act Review Process
“The Energy Policy Act of 2005 was enacted on August 8, 2005, giving the Department
of the Interior authority for issuing leases, easements, or rights-of-way for alternative energy
projects on the Outer Continental Shelf . . . .” 71 Fed. Reg. at 30,693. Accordingly, the BOEM
began to “act as a lead agency for coordinating the permitting process with other Federal
agencies.” Id.; see CW111956.
Once [the BOEM] became the lead agency for the [Cape Wind] project, [the
BOEM] determined that a new [d]raft EIS was needed and developed the scope of
the study for the [d]raft EIS by requesting comments on the Proposed Action in a
public notice published in the Federal Register on May 30, 2006 (71 FR 30693).
The [BOEM] treated all the comments previously made on the [Corps of
Engineers’] [d]raft EIS as scoping comments for [the BOEM’s] [d]raft EIS. The
[BOEM] also considered the comments that were made at [Corps] public
meetings held in Yarmouth, Martha’s Vineyard, Cambridge, and Nantucket,
Massachusetts.
CW111956. The BOEM issued a new draft EIS on January 18, 2008. See 73 Fed. Reg. 3482,
3482 (Jan. 18, 2008); CW111956. “The public comment period on the [d]raft EIS lasted 60 days
(until March 20, 2008) and was then extended another 30 days (until April 21, 2008) in order to
provide the public with additional time to consider and submit comments on the [d]raft EIS.”
16
“The final [Avian and Bat Monitoring Plan] was approved by [the] FWS on September 6, 2012, and by [the]
BOEM on November 20, 2012.” Fed. Defs.’ ESA/MBTA Mem. at 8 & n.8 (citing http://www.boem.gov/
Renewable-Energy-Program/Studies/Cape-Wind.aspx (last visited Mar. 4, 2014)).
20
CW111956. The BOEM made the final EIS available to the public on January 21, 2009. See id.;
74 Fed. Reg. 3635, 3635 (Jan. 21, 2009).
Subsequently, on March 8, 2010, the BOEM prepared an environmental assessment
(“2010 Assessment”). See CW111957. As explained by the BOEM,
[t]he purpose of th[e] [2010 Assessment] was to determine whether there were
significant new circumstances or information relevant to environmental concerns
and impacts associated with the Proposed Action that were not fully addressed in
the [f]inal EIS . . . . The [BOEM] used this [2010 Assessment] to determine
whether the [f]inal EIS needed to be supplemented. The [BOEM] found that no
significant new information existed that would necessitate a re-analysis of the
range of the alternatives or the kinds, levels, or locations of the impacts of the
Proposed Action on the human environment. After considering public comments
on the [2010 Assessment] and additional new information that was received after
the [2010 Assessment] was made publicly available, [the BOEM] concluded that
the analyses in the [f]inal EIS remained valid, and that, because a supplemental
EIS was not required, it issued a Finding of No New Significant Impact
(FONNSI) on April 28, 2010.
Id.On April 28, 2010, the BOEM also issued a Record of Decision (“2010 ROD”), which
stated that “[t]he decision is hereby made to offer a commercial lease to [Cape Wind] in
accordance with . . . [the Shelf Lands Act], under the terms and conditions” specified in the 2010
ROD, id., and in a lease issued to Cape Wind by the BOEM on October 6, 2010, see CW119269;
CW119275. The lease granted Cape Wind “the exclusive right and privilege” to construct,
operate, and eventually decommission the proposed wind energy facility on Horseshoe Shoal in
the Sound. See CW119270. Among the terms and conditions incorporated into the Cape Wind
lease are the terms and conditions which the Coast Guard deemed necessary pursuant to § 414 of
the Coast Guard and Maritime Transportation Act of 2006. See CW119319. The Coast Guard
had previously issued the §414 terms and conditions on August 2, 2007. See CW66389;
CW66393.
21
The 2010 ROD required Cape Wind to submit to BOEM a Construction and Operations
Plan. CW111957; see also CW119697. Cape Wind “submitted a [Construction and Operations
Plan] for the project on October 29, 2010, and submitted a modified [Construction and
Operations Plan] on February 4, 2011.” CW119697. Thereafter,
[o]n February 22, 2011, a “Notice of Preparation of an Environmental
Assessment” was posted on the [BOEM] website to solicit public input in
anticipation of the preparation of [a] 2011 [environmental assessment (“2011
Assessment”)]. The purpose of the comment period was to provide the public
with an opportunity to review and comment on the [Construction and Operations
Plan] as well as to provide [the BOEM] with any significant new information or
circumstances relevant to environmental concerns and bearing on the proposed
action or its impacts. The [Construction and Operations Plan] was made available
for review on the [BOEM] website . . . . Consulting parties and local
governments were informed of the comment period via email, which provided the
location of the [BOEM] website and [the BOEM] mailing address for receiving
comments.
The purpose of the 2011 [Assessment] was to evaluate whether substantial
changes in the proposed action that are relevant to environmental concerns or
significant new circumstances or information relevant to environmental concerns
and bearing on the proposed action had come to light since the [final EIS] and the
2010 [Assessment] were issued. If so, [the BOEM] would be required to prepare
a[] [supplemental EIS] before taking action on [Cape Wind’s Construction and
Operations Plan]. Issues considered in the 2011 [Assessment] include: additional
surveys and sampling; conflicts with aviation traffic and fishing use; emergency
response; migratory birds; microclimate; oil within wind turbine generators;
sloshing dampers; transition piece grout; permits issued by other Federal
agencies; and consultations with other agencies. [The BOEM] did not directly
address comments related to the content of the [Avian and Bat Monitoring Plan]
in the [2011 Assessment]; rather it [did so] in its review of that plan.
CW119705; see also CW119743-86 (2011 Assessment). The BOEM “determined that the [final
EIS] fully discussed the significant environmental consequences associated with the approval of”
Cape Wind’s Construction and Operations Plan, and approved the plan in a record of decision
dated April 18, 2011 (“2011 ROD”). CW119705-06.
22
d. Consultation Under Section 106 of the Preservation Act
“The [Advisory Council on Historic Preservation] formally entered into the Section 106
consultation with the Corps [of Engineers] for the” proposed wind energy park “in March of
2005 upon its determination that the project would adversely affect historic properties on or
eligible for the National Register of Historic Places.” CW44617. After the BOEM took over as
the lead agency, it
commenced its Section 106 process in late 2005 and conducted more than twenty-
one meetings through February 2010. [The BOEM] invited the Massachusetts
[State Historic Preservation Officer] to be a cooperating party on March 16, 2006,
to which she replied “the [Massachusetts Historical Commission] is a consulting
agency.”
CW112019. The Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag
Tribe were also consulting parties to the Section 106 process. CW112021. The BOEM
published a draft EIS pursuant to the NEPA in January of 2008, which “included its initial
identification of properties and its findings of adverse effects.” CW112021. The comments to
the draft EIS objected to the methodology that the BOEM used to identify affected properties,
and the BOEM responded to the comments by revising its methodology and undertaking new
identification efforts. Id. “From that point forward, the NEPA and [S]ection 106 process
timelines” proceeded independently of one another. Id. As part of its Section 106 consultation,
the BOEM
conducted interagency and intergovernmental consultation meetings, including
tribes, to solicit comments and concerns related to the [Cape Wind] project,
including issues related to cultural resources and historic preservation, in
November 2005, June of 2006, and February of 2007[,] leading up to the
circulation of the [draft EIS], and in July of 2008 to discuss concerns raised in
comments to the [draft EIS]. One-on-one government-to-government meetings
with tribes in advance of the [draft EIS] and its findings also took place in July of
2006, February of 2007 . . . and July of 2007.
23
Following its evaluation of [the draft EIS] comments, [the BOEM] resumed its
Section 106 process with a series of consultation meetings specific to the
[S]ection 106 process that began in July 2008. Upon completion of its second
identification of properties effort and these consultations, the [BOEM] released a
Finding of Adverse Effect as an individual document on December 29, 2008[,] to
describe its new list of identified eligible properties and those adversely affected
under the revised methodology. The December 2008 Finding identified 29
historic properties as being adversely affected, including one property of
cultural[] importan[ce] to the Mashpee tribe and two [National Historic
Landmarks]. The December 2008 Finding was included in the analysis of the
[f]inal EIS for the project, [and] circulated for public comment in January 2009.
Government-to-government consultation meetings and Section 106 consultations
meetings with the parties followed throughout 2009 and in early 2010, as
described below.
Through this process, [the BOEM] considered additional information from tribes
and other consulting parties via meetings, written communications, and site visits.
[The BOEM] also worked closely with the Advisory Council for Historic
Preservation and the National Park Service (Keeper of the National Register and
[National Historic Landmark] personnel) in a continued effort to assess the nature
and level of adverse effects and to make determinations of the eligibility of
additional properties, as well as to determine the appropriate scope of the
[S]ection 106 process. As a result, [the BOEM] released a Revised Finding of
Adverse Effect on January 13, 2010. The Revised Finding added Nantucket
Sound and four individual onshore [traditional cultural properties] to the list of
affected historic properties, and clarified the types of alterations that could occur
to each.
A draft Memorandum of Agreement (MOA) was distributed at the June 16, 2009
consultation meeting. The draft MOA contained several proposed mitigation
measures. [The BOEM] asked attendees to review the MOA and provide [the
BOEM] with any comments on the document or other ideas to avoid, minimize or
mitigate adverse effects. The draft MOA was re-circulated to consulting parties at
the January 13, 2010 full Section 106 meeting. The [State Historic Preservation
Officer] concurred with the revised Finding in February 2010. Following public
review of the revised Finding and additional site visits and several meetings with
parties in February 2010, the Secretary [of the Interior] determined that further
efforts to agree on an MOA would not be productive, and on March 1, 2010,
submitted a request to the [Advisory Council for Historic Preservation] for their
comment to terminate the [S]ection 106 process.
CW112021-22. “The [Advisory Council for Historic Preservation] comment was received [by
the Secretary of the Interior] on April 2, 2010.” CW112024; see also CW112696.
24
3. The Current Litigation
The PEER plaintiffs, comprised of several environmental groups, members of those
groups, and individuals who use the Nantucket Sound, PEER Compl. ¶¶ 3-29, assert three claims
for relief based on alleged deficiencies in the FWS’s and the NMFS’s biological opinions and
incidental take statements, id. ¶¶ 97-99. They also challenge the issuance of the records of
decision, the lease, and the approval of the Cape Wind construction operations plan, on the
grounds that each relies on invalid biological opinions. Id. ¶¶ 100-103. The PEER plaintiffs also
allege that the BOEM and the Corps of Engineers should have obtained a permit for the take of
migratory birds prior to approving the Cape Wind project. Id. ¶ 104. Finally, they claim that the
BOEM violated the NEPA by failing to issue a supplemental EIS concerning the recent
aggregations of right whales, by failing to address certain other data or effects of the project, and
by relying on the Avian and Bat Monitoring Plan. Id. ¶¶ 106-110.
The Town of Barnstable “is a municipal corporation and political subdivision of
Massachusetts” that “has jurisdiction over extensive lands on the south side of Cape Cod along
Nantucket Sound.” Barnstable Compl. ¶ 10. In its complaint, Barnstable asserts nine claims for
relief based on the BOEM’s alleged failure to adequately address the finding that the Sound is
eligible for listing in the National Register or to survey all historic properties in and around the
Cape Wind project area, in violation of the Preservation Act. Id. ¶¶ 200-08. Barnstable also
challenges the adequacy of the BOEM’s final EIS, as well as its failure to issue a supplemental
EIS, id. ¶¶ 209-14, the BOEM’s alleged failure to provide for safety 17 as required by the Shelf
17
Specifically, the Town of Barnstable alleges that
[t]he [d]efendants have . . . fail[ed] to ensure that the [Cape Wind project] . . . will be carried out
in a manner that provides for the safety of parties engaging in: a) commercial and general aviation
activities; b) commercial shipping and commercial transportation between the Cape and the
(continued . . . )
25
Lands Act, id. ¶¶ 215-19, and the Coast Guard’s alleged failure to specify appropriate terms and
conditions as to navigation safety in the Sound as required in § 414 of the Coast Guard and
Maritime Transportation Act of 2006, id. ¶¶ 220-25.
The Alliance plaintiffs, a non-profit environmental group and several individuals who use
or enjoy the Sound, Alliance Compl. ¶¶ 6-24, assert six claims under the NEPA, the Shelf Lands
Act, § 414, and the Preservation Act similar to those asserted by the PEER plaintiffs and the
Town of Barnstable, id. ¶¶ 151-76. The Alliance plaintiffs additionally allege violations of the
Clean Water Act and the Rivers and Harbors Act. See id. ¶¶ 177-93.
The Wampanoag Tribe of Gay Head (Aquinnah) states in its complaint that “[t]he Tribe
has lived on the shores of Nantucket Sound since time immemorial,” and “depends on the
Nantucket Sound for food, jobs, spiritual ceremonies, and cultural continuity, and the Sound is
essential to the Tribe’s religious ceremonies and traditional religious practices.” Wampanoag
Compl. ¶¶ 13-14. The Tribe’s complaint asserts three claims for relief based on the federal
defendants’ alleged failure to consider the impact of the Cape Wind project on subsistence
fishing, the failure to adequately consider the impact of the finding that the Nantucket Sound is
eligible for listing in the National Register, and the failure to engage in timely and adequate
Section 106 consultation with the Tribe. Id. ¶¶ 127-43.
The Court granted Cape Wind Associates, LLC’s (“Cape Wind”) unopposed motion for
leave to intervene as a defendant. See September 8, 2010 Minute Order. The Court
subsequently consolidated the cases filed by the PEER, Alliance and Town of Barnstable
(. . . continued)
Islands; c) oil spill prevention and response operations; and d) search and rescue operations.
Barnstable Compl. ¶ 216
26
plaintiffs, 18 see October 25, 2010 Minute Order, as well as the case filed by the Wampanoag
Tribe of Gay Head (Aquinnah), see July 8, 2011 Minute Order.
The parties have now filed cross-motions for summary judgment: one concerning the
PEER, Alliance, and Town of Barnstable plaintiffs’ ESA and Migratory Bird Treaty Act claims;
a second concerning the PEER, Alliance, and Town of Barnstable plaintiffs’ remaining claims;
and a third concerning the claims of the Wampanoag Tribe of Gay Head (Aquinnah).
Additionally, the PEER, Alliance, and Town of Barnstable plaintiffs have filed a motion
pursuant to Federal Rule of Civil Procedure Rule 56(e) seeking additional discovery concerning
certain documents cited in the federal defendants’ legal memoranda, or in the alternative to strike
those same documents.
II. STANDARD OF REVIEW
“Summary judgment is the proper mechanism for deciding, as a matter of law, whether
an agency action is supported by the administrative record and consistent with the APA standard
of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010)
(citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007), aff’d, 408
F. App’x 383 (D.C. Cir. 2010)); see also Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir.
1977). But due to the limited role of a court in reviewing the administrative record, the typical
summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable.
Stuttering, 498 F. Supp. 2d at 207. Rather, “[u]nder the APA, it is the role of the agency to
resolve factual issues to arrive at a decision that is supported by the administrative record,
whereas ‘the function of the district court is to determine whether or not as a matter of law the
18
Another case was consolidated at the same time, but was later dismissed with prejudice. See Stipulation of
Voluntary Dismissal of All Claims in Martha’s Vineyard / Dukes County Fisherman’s Ass’n v. Salazar, ECF No.
149; see also July 2, 2012 Minute Order.
27
evidence in the administrative record permitted the agency to make the decision it did.’” Id.(quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words,
“when a party seeks review of agency action under the APA, the district judge sits as an
appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am. Bioscience, Inc.
v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citations omitted).
III. ANALYSIS
A. Whether the Coast Guard Violated § 414 of the Coast Guard and Maritime
Transportation Act of 2006
The Town of Barnstable and the Alliance plaintiffs have moved for summary judgment
on their claims that the United States Coast Guard violated § 414 of the Coast Guard and
Maritime Transportation Act of 2006. Pls.’ Remain Mem. at 15-16; Pls.’ Remain Opp’n at 21;
Alliance Compl. ¶¶ 167-70; Barnstable Compl. ¶¶ 220-25. The federal defendants and Cape
Wind each move for summary judgment on the ground that no final agency action resulted from
the United States Coast Guard’s issuance of terms and conditions for the Cape Wind lease
pursuant to § 414, and thus there can be no APA challenge to those terms and conditions. 19 Fed.
Defs.’ Remain Mem. at 14; Fed. Defs.’ Remain Reply at 1; Int. Def.’s Remain Mem. at 19; Int.
Def.’s Remain Reply at 1-2. Alternatively, the federal defendants and Cape Wind argue that
even if the issuance of the terms and conditions constitutes final agency action, the Coast Guard
fully complied with the provisions of the Coast Guard and Maritime Transportation Act of 2006.
Fed. Defs.’ Remain Mem. at 14; Fed. Defs.’ Remain Reply at 1; Int. Def.’s Remain Mem. at 19;
Int. Def.’s Remain Reply at 1-2.
19
Because the Court concludes that there has been no violation of § 414 of the Coast Guard and Maritime
Transportation Act of 2006, the Court will not address whether the issuance of terms and conditions pursuant to
§ 414 constitutes final agency action.
28
Section 414 was passed in large part due to the pendency of Cape Wind’s proposal. See
152 Cong. Rec. S6439-40 (daily ed. June 22, 2006) (statement of Senator Stevens). The
legislative history discloses Congress’ position that “[i]t must be left up to the Commandant of
the Coast Guard to decide what is necessary to prevent negative impact to navigation, aviation,
and communications caused by the proposed wind farm.” Id. at S6439. To that end, § 414
provides that “the Commandant of the Coast Guard shall specify the reasonable terms and
conditions the Commandant determines to be necessary to provide for navigational safety with
respect to the proposed lease . . . and each alternative” to the proposal, and also that “the
Secretary [of the Interior] shall incorporate into the lease . . . reasonable terms and conditions the
Commandant determines to be necessary to provide for navigational safety.” Pub. L. No. 109-
241, 120 Stat. at 540 (emphasis added).
There is no case law construing § 414, and so the Court must turn to the familiar two-step
analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). “When a court reviews an agency’s construction of the statute which it administers, it is
confronted with two questions. First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the
matter.” Chevron, 467 U.S. at 842. And it is well established that
[t]he judiciary is the final authority on issues of statutory construction and must
reject administrative constructions which are contrary to clear congressional
intent. If a court, employing traditional tools of statutory construction, ascertains
that Congress had an intention on the precise question at issue, that intention is
the law and must be given effect.
Id. at 843 n.9 (citations omitted). Among the “traditional tools of statutory interpretation” are the
“text, structure, purpose, and legislative history” of the statute.” Pharm. Research & Mfrs. of
Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). If the Court determines that Congress’
29
intent is unclear, then the court proceeds to the second step under Chevron, which requires the
court to “defer to the agency’s interpretation as long as it is ‘based on a permissible construction
of the statute.’” Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting
Chevron, 467 U.S. at 843)).
As to step one of the Chevron analysis, the Court “begins, as always, with the text of the
statute.” Chao v. Day, 436 F.3d 234, 235 (D.C. Cir. 2006). And “[w]here, as here, [the text] is
plain and unambiguous,” the Court’s “analysis ends with the text as well.” Id. The mandatory
language of § 414 makes clear that the Commandant “shall” communicate to the Secretary of the
Interior the terms and conditions deemed necessary for navigational safety, and the Secretary of
the Interior “shall” include those terms and conditions in any lease that might be issued pursuant
to § 1337(p) of the Shelf Lands Act. Pub. L. No. 109-241, 120 Stat. at 540. The statute leaves
no discretion to either the Commandant as to the decision to issue terms and conditions, or to the
Secretary of the Interior regarding the decision to include those terms and conditions in a
§ 1337(p) lease. See Ass’n of Civilian Technicians v. Fed. Labor Relations Auth., 22 F.3d 1150,
1153 (D.C. Cir. 1994) (“The word ‘shall’ generally indicates a command that admits of no
discretion on the part of the person instructed to carry out the directive.”).
What is less clear from the text of the statute is the effect of the Commandant’s issuance
of the terms and conditions. However, the legislative history is instructive:
The arrangement dictated by section 414 of [the Coast Guard and Maritime
Transportation Act of 2006] has precedence in the procedure for granting
hydroelectric licenses under the Federal Power Act[, 16 U.S.C. § 797(e) (2012)].
This process requires the Federal Energy Regulatory Commission to include in
the terms and conditions of its licenses for hydroelectric licenses any conditions
deemed necessary to protect the interests of other agencies. The United States
Supreme Court[, in Escondido Mutual Water Co. v. La Jolla Band of Mission
Indians, 466 U.S. 765 (1984),] determined that such conditions had to be
“reasonable” and the reasonability of the conditions was a matter to be determined
by the courts, not the Commission.
30
152 Cong. Rec. at S6440. In Escondido, the Supreme Court addressed § 4(e) of the Federal
Power Act, 466 U.S. at 772, which provides that licenses such as the hydroelectric facility
license at issue in that case “shall be subject to and contain such conditions as the Secretary [of
the Interior] . . . shall deem necessary for the adequate protection and utilization” of the property,
16 U.S.C. § 797(e). The Supreme Court held that it was “clear enough that while Congress
intended that the Commission would have exclusive authority to issue all licenses, it wanted the
[Secretary of the Interior] to continue to . . . determin[e] what conditions would be included in
the license in order to protect the resources under [his] [] jurisdiction[].” Escondido, 466 U.S. at
775. The District of Columbia Circuit has elaborated that
[i]f Congress had intended Interior to have authority to require prescriptions
independent of the Commission’s licensing process, it could easily have so
specified. By providing instead that Interior’s prescription is to be a FERC
license requirement, Congress implicitly indicated that it would have to be
supported as would any other Commission licensing requirement. The record
before us, then, is no more and no less than what was presented to the
Commission.
Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm’n, 78 F.3d 659, 662 (D.C. Cir. 1996).
And “[i]f the Secretary [of the Interior] concludes that the conditions are necessary” then “the
court is obligated to sustain” the conditions “if they are reasonably related to [the Secretary’s]
goal [of preserving reservations], otherwise consistent with the [Federal Power Act], and
supported by substantial evidence.” Escondido, 466 U.S. at 778. The Circuit has interpreted this
standard of review as akin to arbitrary and capricious review under the APA. See Bangor
Hydro-Elec. Co., 78 F.3d at 663.
Given the similarity between the statutory schemes of § 414 and § 4(e) of the Federal
Power Act, and given also the fact that the legislative history of § 414 specifically relies on the
Supreme Court’s decision in Escondido, it seems inescapable that the Court must review the
31
imposition of the § 414 terms and conditions in the same manner dictated for review of § 4(e) of
the Federal Power Act. In other words, if the Coast Guard has deemed certain terms and
conditions necessary for the Cape Wind project pursuant to § 414, then “the [C]ourt is obligated
to sustain” those terms and conditions “if they are reasonably related to [the Coast Guard’s] goal,
otherwise consistent with the [Shelf Lands Act], and supported by substantial evidence.” 20 See
Escondido, 466 U.S. at 778; see also Bangor Hydro-Elec. Co., 78 F.3d at 662-63.
As to the Coast Guard’s objective, § 414 makes clear that its terms and conditions must
“provide for navigational safety with respect to the proposed lease, easement, or right of-way.”
Pub. L. No. 109-241, 120 Stat. at 540. The terms and conditions imposed by the Coast Guard
address the design, positioning, arrangement, and operation of the Cape Wind project, and
include required specified labeling, mechanisms for shutting down the wind turbine generators,
and placement of safety equipment and mooring attachments on the wind turbine generators for
emergency use. CW66379. The terms and conditions also require Cape Wind, prior to
construction, to provide to the BOEM and the Coast Guard for their review and approval certain
research analyses concerning, and recommended mitigation measures for, the project’s impact on
radar navigation of vessels in and around the project. CW66380. There are also provisions for
breaking ice that might form in and around the project area. CW66381-82. Finally, the terms
and conditions require Cape Wind to report periodically to both the BOEM and the Coast Guard
about navigational safety, and the Coast Guard retains for itself the right to amend the terms and
20
The defendants argue that the similarity between the two statutory schemes calls for the conclusion that the Coast
Guard is not a proper party. See, e.g., Fed. Defs.’ Remain Mem. at 14-17; Int. Def.’s Remain Mem. at 19-23. As
this Circuit has stated, where parties levy a challenge to licenses issued under the Federal Power Act, “FERC is the
appropriate named respondent even if the real defense is to be mounted by [the Department of the] Interior.”
Bangor Hydro-Elec. Co., 78 F.3d at 662 (citing 16 U.S.C. § 825 (b)). The Court thus need not address whether the
Coast Guard is an appropriate party because even if it is not, the plaintiffs’ claims concerning the § 414 terms and
conditions are properly brought against the BOEM, and must therefore be reviewed by the Court in the manner set
forth in Escondido.
32
conditions at any time. CW66380-83. The Court is satisfied that these terms and conditions are
reasonably related to the Coast Guard’s goal to provide for navigational safety.
The Court is also satisfied that the terms and conditions are otherwise consistent with
§ 1337(p) of the Shelf Lands Act. This Act requires, among other things, that any lease granted
pursuant to § 1337(p) be “carried out in a manner that provides for . . . safety” and for
“oversight, inspection, research, monitoring, and enforcement relating to” the lease. 43 U.S.C.
§ 1337(p)(4). The terms and conditions adopted by the Coast Guard provide for oversight,
inspection, research, and monitoring, and also provide several safety measures. And while the
terms and conditions do not explicitly address enforcement of the provisions, the Coast Guard
has not only the right to amend the terms and conditions, but also to order that a wind turbine
generator or a set of generators be shutdown “in instances where the Coast Guard determines that
navigation safety may be impacted if the [wind turbine generator] were to continue to operate.”
CW66376. The Court finds that the Coast Guard’s § 414 terms and conditions are consistent
with the terms of the Shelf Lands Act.
Finally, there is substantial evidence to support the imposition of the Coast Guard’s terms
and conditions. As instructed by the Circuit, the Court assesses the substantial evidence issue by
considering the record that “was presented to” the BOEM. 21 Bangor Hydro-Elec. Co., 78 F.3d at662 (citing Escondido, 466 U.S. at 778 n.20 (“[T]he court is to sustain the conditions if they are
21
Cape Wind urges the Court to restrict its review “to the BOEM record and not the Coast Guard record.” Int.
Def.’s Remain Mem. at 22-23. However, the federal defendants do not make this argument, and “[t]he general rule
in this Circuit is that ‘[i]ntervenors may only argue issues that have been raised by the principal parties.’” Ass’n of
Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675 (D.C. Cir. 2013) (Silberman, J., concurring) (quoting Nat’l Ass’n
of Regulatory Util. Comm’rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994)). Indeed, the federal defendants rely heavily
on Coast Guard documents in making their arguments, and the plaintiffs agree that the Coast Guard’s documents are
part of the administrative record. Pls.’ Remain Opp’n at 18 & n.3. Presumably, these same documents were or
would have been “presented to” the BOEM, and so in any event they can properly be considered by the Court. See
Bangor Hydro-Elec. Co., 78 F.3d at 662 (denying request to remand the record so that the Department of the Interior
could add material to the record and remarking that “Interior had no excuse for not including any evidence it wished
to rely on[] in the court of appeals, in the record before the Commission. It is simply too late now to shore up its
case”).
33
consistent with law and supported by the evidence presented to the [agency], either by the
Secretary or other interested parties.” (emphasis added in Bangor Hydro-Elec. Co.))). Here, the
BOEM’s final EIS incorporates the Coast Guard’s findings. See, e.g., CW65611-26 (discussing
results of Coast Guard studies on navigational safety); CW66375-414 (Coast Guard responses to
comments on the draft EIS); CW75940-86 (Coast Guard commissioned study of the Cape Wind
project’s impact on radar technology of vessels in and around the project area).
As to the navigational safety studies, the administrative record contains a Revised
Navigational Risk Assessment (“Revised Assessment”), USCG907, which was an update of an
initial risk assessment prepared for Cape Wind at the request of the Coast Guard, USCG916.
The Revised Assessment “includes updated information to address topics requested by the [Coast
Guard]” when the Corps of Engineers was functioning as the lead agency for the Cape Wind
Project. Id. The Revised Assessment
includes descriptions of the Nantucket Sound environment,[22] vessel traffic types
and operating areas, the effects of the proposed Wind Park on navigation, an
analysis of vessel impacts on the [wind turbine generators], historic search and
rescue operations in and around the Wind Park, the effects of the proposed Wind
Park on search and rescue operations, and the effects of the proposed Wind Park
on communications. Various marine interests in Nantucket Sound, including the
[Coast Guard] and the Steam Ship Authority [], and the proposed [wind turbine
generator] vendor (General Electric) [] provided information to assist in the
preparation of the . . . Assessment.
Id.; see also USCG917-61 (discussing observations and data concerning each of the listed
considerations, including data obtained from currently operational offshore wind energy projects
in other bodies of water). The Risk Assessment also includes several mitigation measures to
which Cape Wind agreed in an effort to address any navigational safety issues. USCG961-62.
The executive summary of the Risk Assessment ultimately concludes that “[t]he presence of the
22
Environmental descriptions included the hydrography, currents, waves, and weather of Nantucket Sound.
USCG918-20.
34
Wind Park at Horseshoe Shoal is not expected to create negative impacts to navigational safety.”
USCG913.
In addition to the Risk Assessment, the Coast Guard also considered guidance from the
United Kingdom’s Maritime and Coast Guard Agency, which “assess[ed] the impact on
navigational safety from offshore renewable energy developments.” See USCG409-23.
Included in this guidance were standard design requirements, operational requirements, and
operational procedures for offshore wind energy farms. USCG418-19 (requiring, among other
things, that wind turbine generators be clearly marked, that “[t]hroughout the design process for
a wind farm, assessments and methods for safe shutdown should be established and agreed,” and
that periodic testing of emergency communication and shutdown procedures be conducted). The
Coast Guard adopted many of these recommendations as part of its own “guidance on
information and factors the Coast Guard will consider when reviewing an application for a
permit to build and operate an Offshore Renewable Energy Installation.” USCG1087; see
generally USCG1086-111 (Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).
Given the results of the Risk Assessment, as well as the recommendations in the guidance
from the United Kingdom and the Coast Guard’s own guidance, it cannot be said that the terms
and conditions deemed necessary by the Coast Guard pursuant to its § 414 obligation were
unreasonable. Rather, the information available shows that there is a “rational connection
between the facts” concerning navigational safety and “the choice made” as to the terms and
conditions adopted by the Coast Guard for the Cape Wind project. See Bangor Hydro-Elec. Co.,
78 F.3d at 663 n.3. The Court therefore finds that the terms and conditions chosen are supported
by substantial evidence.
35
The plaintiffs do not confine their objections to the § 414 terms and conditions to the
three prongs of the Escondido analysis, presumably because they do not believe that the analysis
should apply here, and instead lodge attacks on other aspects of the terms and conditions. First,
the plaintiffs contend that the terms and conditions “are little more than vague generalities and a
promise to ensure navigational safety later.” Pls.’ Remain Mem. at 18. The Court disagrees.
While it is true that certain terms and conditions require future action or studies, other terms and
conditions impose mandatory design, positional, and operational requirements. See, e.g.,
CW66379 (providing that “each individual [wind turbine generator] shall be marked with private
aids to navigation in accordance with” specified guidelines) (emphasis added); id. (“All [wind
turbine generator] rotors (blade assemblies) shall be equipped with control mechanisms that can
be operated from the control center of the [Nantucket Sound Wind Farm].”) (emphasis added);
id. (“Safety lines, mooring attachments (for securing vessels) and access ladders for use in
emergencies shall be placed on each [wind turbine generator].”) (emphasis added). Moreover,
provisions for future action are actually consistent with the terms of the Shelf Lands Act. See 43
U.S.C. § 1337(p)(4)(L) (requiring that renewable energy activities be “carried out in a manner
that provides for . . . oversight, inspection, research, monitoring, and enforcement relating to a
lease . . . granted” under the Shelf Lands Act). Indeed, it strikes the Court that it would make
little sense for the Coast Guard and the BOEM to approve the Cape Wind project only to
abandon the possibility of future oversight, research, and monitoring of the impacts that the
project might have on navigational safety. Perhaps most importantly, though, a great deal of
deference is owed to the “Coast Guard’s expertise . . . in maritime safety.” Collins v. Nat’l
Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir. 2003); see also Cassidy v. Chertoff, 471 F.3d
67, 84 (2d Cir. 2006) (“Expert determinations by the Coast Guard . . . which are based on an
36
explicit Congressional delegation of legislative authority . . . are entitled to significant
deference.”). Accordingly, because the Coast Guard deemed provisions concerning future action
to be appropriate, the Court must reject this challenge to the terms and conditions.
The plaintiffs next object to the Coast Guard’s interpretation that § 414 requires the
issuance of terms and conditions only for project proposals, see CW66378, and not for each
NEPA alternative to the proposed action. Pls.’ Remain Mem. at 23. The plaintiffs rely on the
statutory language of § 414, which states:
[T]he Commandant of the Coast Guard shall specify the reasonable terms and
conditions the Commandant determines to be necessary to provide for
navigational safety with respect to the proposed lease, easement, or right-of-way
and each alternative to the proposed lease, easement, or right-of-way considered
by the Secretary.
Pub. L. No. 109-241, 120 Stat. at 540 (emphasis added); see Pls.’ Remain Mem. at 23-24. As
noted above, the Court begins its analysis with the language of the statute. In this instance, while
it is clear that the Commandant is required to specify terms and conditions for the project
proposal, it is not clear, as the plaintiffs contend, that the definition of “alternative” as intended
in § 414 has the same meaning that the word “alternative” has in the NEPA. See 40 CFR §
1502.14. To be sure, the terms and conditions must be specified “not later than 60 days before
the date established . . . for the publication of a draft environmental impact statement,” Pub. L.
No. 109-241, 120 Stat. at 540, but the statute does not otherwise incorporate or reference the
NEPA. “Alternative” as used in the NEPA context is a term of art addressed in that statute’s
implementing regulations. See 40 C.F.R. § 1502.14. If Congress had intended to direct the
Commandant to consider specifically NEPA alternatives, it could easily and explicitly have
drafted § 414 to refer to the applicable sections of the NEPA or its implementing regulations, but
it did not. Furthermore, it would be odd to require the Coast Guard to provide terms and
37
conditions for each NEPA alternative, given that several alternatives were jettisoned without
detailed consideration for various reasons. 23 Although the plaintiffs’ proposed reading of the
statute is plausible, the Court is required to defer to an agency’s permissible interpretation of an
ambiguous statute. Bluewater Network, 372 F.3d at 410. Here, the Coast Guard interpreted
§ 414 to require only the issuance of terms and conditions for alternative proposals, as opposed
to doing the same for each NEPA alternative to a proposal. Because the statute does not
specifically reference NEPA alternatives, the Court finds that the Coast Guard’s interpretation is
not impermissible.
Because the Coast Guard has deemed the § 414 terms and conditions necessary to
provide for navigational safety in and around the Cape Wind project, CW66389, and because the
terms and conditions “reasonably relate[] to [the Coast Guard’s] goal, [are] otherwise consistent
with the [Shelf Lands Act], and [are] supported by substantial evidence,” see Escondido, 466
U.S. at 778, the Court must sustain the terms and conditions and dismiss the plaintiffs’ claims
against the Coast Guard that allege violations of the Coast Guard and Maritime Transportation
Act of 2006. Accordingly, the Court grants summary judgment to the defendants on the
plaintiffs’ § 414 claims.
B. Whether the BOEM Violated the Shelf Lands Act
1. The BOEM’s Reliance on the Coast Guard’s Navigational Safety Findings
The plaintiffs argue that the BOEM violated both the Shelf Lands Act and the NEPA by
relying on the Coast Guard’s navigational safety analyses. Pls.’ Remain Mem. at 45. With
respect to renewable energy projects like the Cape Wind project, the Shelf Lands Act requires
the Secretary to
23
The alternatives are discussed in detail below in the context of the Court’s evaluation of the plaintiffs’ NEPA
claims.
38
ensure that [the] activity . . . is carried out in a manner that provides for--
(A) safety;
(B) protection of the environment;
(C) prevention of waste;
(D) conservation of the natural resources of the outer Continental Shelf;
(E) coordination with relevant Federal agencies;
(F) protection of national security interests of the United States;
(G) protection of correlative rights in the outer Continental Shelf;
(H) a fair return to the United States for any lease, easement, or right-of-way
under this subsection;
(I) prevention of interference with reasonable uses (as determined by the
Secretary) of the exclusive economic zone, the high seas, and the territorial
seas;
(J) consideration of--
(i) the location of, and any schedule relating to, a lease, easement, or right-of-
way for an area of the outer Continental Shelf; and
(ii) any other use of the sea or seabed, including use for a fishery, a sealane, a
potential site of a deepwater port, or navigation;
(K) public notice and comment on any proposal submitted for a lease, easement,
or right-of-way under this subsection; and
(L) oversight, inspection, research, monitoring, and enforcement relating to a
lease, easement, or right-of-way under this subsection.
43 U.S.C. § 1337(p)(4). The plain language of the Shelf Lands Act therefore suggests that it
would have been unlawful for the BOEM to rely on the Coast Guard’s findings if those findings
did not further the Secretary of the Interior’s obligation to ensure that the Cape Wind project “is
carried out in a manner that provides for safety.” Id.As to the findings themselves, the plaintiffs devote a substantial portion of their
memoranda to attacking the Coast Guard’s evaluation of the navigational safety impacts
resulting from the Cape Wind project as arbitrary and capricious decisionmaking. Pls.’ Remain
Mem. at 29-45; Pls.’ Remain Opp’n at 21-31. First, the plaintiffs argue that the Coast Guard’s
“assessment of navigational impacts is incoherent and contradicted by Coast Guard personnel.”
Pls.’ Remain Mem. at 29; see also id. at 30-33. They challenge the Coast Guard’s conclusion in
a November 2008 safety assessment letter that the Cape Wind project “‘will (1) have a moderate
impact on navigation safety, and (2) have a negligible adverse impact on Coast Guard
39
missions.’” Id. at 30 (quoting CW66389); see also id. at 31-33 (addressing the November 2008
letter’s discussion of impacts on radar communications, the spacing of the wind turbines,
inclement weather, and Coast Guard search and rescue missions). At bottom, the plaintiffs argue
that the BOEM could not lawfully rely on the Coast Guard’s findings because those findings
represent arbitrary and capricious decisionmaking.
Under the APA, only “final agency action” is reviewable by the Court. See 5 U.S.C. §
704. The Supreme Court has stated that,
[a]s a general matter, two conditions must be satisfied for agency action to be
“final”: First, the action must mark the “consummation” of the agency’s
decisionmaking process—it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which “rights or obligations have
been determined,” or from which “legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted). Here, it cannot be
said that the Coast Guard engaged in arbitrary and capricious decisionmaking, because while the
BOEM incorporated the Coast Guards’ navigational safety findings into the final EIS, those
findings did not, in and of themselves, “mark the ‘consummation’ of the [Coast Guard’s]
decisionmaking process,” nor did those findings determine the “rights or obligations” of any
party or result in “legal consequences.” Bennett, 520 U.S. at 177-78. Rather, the Coast Guard’s
findings were simply meant to inform the BOEM of the impact that the Cape Wind project
would have on navigational safety in and around the Nantucket Sound.
Even if the Coast Guard’s findings do constitute reviewable final agency action, as this
Court recently reiterated:
“[t]he ‘arbitrary and capricious’ standard of review as set forth in the APA is
highly deferential,” and the Court must “presume the validity of agency action.”
Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Although
the “court is not to substitute its judgment for that of the agency[,] . . . the agency
must examine the relevant data and articulate a satisfactory explanation for its
action including a rational connection between the facts found and the choice
40
made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983) (citations and quotation marks omitted). And where, as here, a
court is reviewing an agency’s evaluation of “‘scientific data within its technical
expertise,’” the arbitrary and capricious standard of review is “‘extreme[ly]
deferential.’” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1289 (D.C. Cir.
2004) (citation omitted). This is because courts “review scientific judgments of
the agency ‘not as the chemist, biologist, or statistician that we are qualified
neither by training nor experience to be, but as a reviewing court exercising our
narrowly defined duty of holding agencies to certain minimal standards of
rationality.’” Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997).
Styrene Info. & Research Ctr., Inc. v. Sebelius, 944 F. Supp. 2d 71, 87 (D.D.C. 2013) (footnote
omitted). And, in the matter currently before the Court, a great deal of deference is owed to the
“Coast Guard’s expertise . . . in maritime safety.” Collins, 351 F.3d at 1253; see also Cassidy,
471 F.3d at 84 (“Expert determinations by the Coast Guard . . . which are based on an explicit
Congressional delegation of legislative authority . . . are entitled to significant deference.”). In
evaluating whether the Coast Guard has engaged in arbitrary or capricious decisionmaking, the
Court’s role is to determine whether the record demonstrates that the agency has considered the
“relevant data and articulate[d] a satisfactory explanation for its action,” and whether the
agency’s choice reflects “a rational connection between the facts found and the choice made.”
Bluewater Network, 370 F.3d at 11.
Although the plaintiffs fault the Coast Guard for issuing the November 2008 safety
assessment letter prior to the completion of radar studies, the letter itself acknowledges that the
impact on radars “remains outstanding.” CW66389. The letter also indicates the further steps
the Coast Guard was taking in order to better understand the impacts on radars, and stated that
“[t]he Coast Guard will review the study and provide any additional information at that time and
requests that the information provided be addressed in the Record of Decision.” Id. Contrary to
what the plaintiffs indicate, the November 2008 letter does not state that the project “will not
make navigation within the Project site more difficult,” Pls.’ Remain Mem. at 31, but instead
41
clearly states that the Coast Guard expected “a moderate impact on navigation safety,”
CW66389. Those impacts, and mitigation measures to lessen the impacts, are discussed in
attachments to the letter. See, e.g., CW66407-08. Relying on the Risk Assessment discussed
above, among other factors, the Coast Guard concluded that “navigation is capable of being done
safely.” CW66408. As far as concerns about inclement weather, the plaintiffs emphasize the
Coast Guard’s suggestion that smaller vessels will be “less prevalent” in poor weather, Pls.’
Remain Mem. at 32, and ignore the Coast Guard’s inclusion of “vessels of any size” as also
being “less prevalent” in such conditions, CW66406. Indeed, the Coast Guard considers other
weather-related factors, both in the Risk Assessment and in the attachments to the November
2008 letter. CW66406-07. Finally, the plaintiffs’ contention that the Coast Guard did not
adequately consider the effects on Coast Guard search and rescue operations is contradicted by
the record. The plaintiffs focus, Pls.’ Remain Mem. at 33, on the “four of 50 [search and rescue]
cases (8%) [that] involved the use of an aircraft for rescue,” without noting that “in only one case
did the aircraft actually effect a rescue,” CW66411. The Coast Guard concluded based on the
small number of actual rescues affected and other factors that search and rescue efforts would
not be adversely hindered. In short, there is substantial evidence in the record that the Coast
Guard considered and addressed the concerns that the plaintiffs raised with respect to the
November 2008 safety assessment letter, and thus, the Court finds that the Coast Guard did not
engage in arbitrary and capricious decisionmaking through the issuance of the letter.
Next, the plaintiffs contend that “the Coast Guard improperly dismissed the importance
of marine radar to navigational safety.” Pls.’ Remain Mem. at 29; see also id. at 34-41; Pls.’
Remain Opp’n at 42-45. In making this argument, they focus primarily on a report authored by
the Technology Service Corporation analyzing the effect of the Cape Wind project, which was
42
attached as part of Appendix M to the final EIS. See CW75940-86. In advancing their
arguments, the plaintiffs cherry pick quotes from the report, and invite the Court to examine
maps, images, and videos depicting various radar functioning related scenarios. See, e.g., Pls.’
Remain Opp’n at 34-35. As an initial matter, it would be improper for the Court to delve into
and analyze the scientific underpinnings of the report. But even if it could, the Coast Guard’s
findings, which are also contained in Appendix M, see CW75970-86, acknowledge and address
each of the points raised by the plaintiffs concerning the ability of radar operators to detect
potential dangers, compare Pls.’ Remain Mem. at 34-41 (raising concerns about false targets,
radar reflections, and impacts on Automatic Radar Plotting Aid systems), with CW75976-86
(discussing impacts on Automatic Radar Plotting Aid systems, false targets, and radar
reflections). And while the plaintiffs additionally attempt to undermine the Coast Guard’s
findings by pointing to alterations made to the Technology Service Corporation’s report and the
Coast Guard’s alleged failure to implement recommendations put forth by various individuals,
Pls.’ Remain Opp’n at 42-43, it is axiomatic that “the reasonableness of [an] agency’s action is
judged in accordance with its stated reasons” under the arbitrary and capricious standard of
review, and “the actual subjective motivation of decisionmakers is immaterial as a matter of
law—unless there is a showing of bad faith or improper behavior,” In re Subpoena Duces
Tecum, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998). The Court cannot discern that the Coast
Guard engaged in improper behavior or acted in bad faith, and the plaintiffs have provided no
basis for the Court reaching that conclusion. The plaintiffs’ disagreement with the ultimate
findings made by the Coast Guard is not reason enough for the Court to deem the agency’s
decisionmaking arbitrary or capricious. Lastly, although the plaintiffs challenge, Pls.’ Remain
Mem. at 37-41, the Coast Guard’s finding that the impact on navigational safety would be
43
“moderate” with the implementation of the stated mitigation measures, CW75984-86, the Court
is not in a position to evaluate the adequacy of those measures. As the Court has already held,
there is substantial evidence to support the Coast Guard’s § 414 terms and conditions, and the
mitigation measures similarly enjoy adequate support in the administrative record. See, e.g.,
USCG 907-62 (analyzing navigational safety and discussing mitigation measures with respect to
both the Cape Wind project and offshore wind farms in other parts of the world); USCG417
(United Kingdom’s Maritime and Coast Guard Agency’s suggested “safety and mitigation
measures recommended for [offshore renewable energy installations] during construction,
operation and decommissioning”); USCG1111 (setting forth “example risk mitigation strategies”
adopted as part of the Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).
Accordingly, because there is a rational connection between the facts found and the decision
made, it was not arbitrary and capricious for the Coast Guard to find that the stated mitigation
measures would lessen the impact on navigational safety so as to render the impact moderate.
Finally, the plaintiffs argue that “the Coast Guard’s finding that buffer zones are
unnecessary is contradicted by the record and by Coast Guard Policy and is fundamentally
indefensible from a safety perspective,” thus resulting in arbitrary and capricious
decisionmaking. Pls.’ Remain Mem. at 29, 41-45; Pls.’ Remain Opp’n at 43-45. They contend
in essence that “the Coast Guard was required to address substantial questions raised by experts
regarding how a buffer zone would affect navigational safety in the Sound, not merely that it was
not necessary.” Pls.’ Remain Opp’n at 44. To the extent that the plaintiffs rely on experts’
comments that post-date the issuance of the Coast Guard’s findings, see id. at 43-44 (citing
comments from 2009 and 2012), their reliance on the comments is misplaced because “[i]t is a
widely accepted principle of administrative law that the courts base their review of an agency’s
44
actions on the materials that were before the agency at the time its decision was made,” IMS,
P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). The remainder of the plaintiffs’ arguments
fail for the same reasons stated above, namely, that the Coast Guard’s finding that a buffer zone
was unnecessary is adequately supported by the record, see, e.g., CW75983 (analyzing the
Technology Services Corporation report); CW75986 (finding that mitigation measures obviate
the need for buffer zones), and significant deference is owed to those findings, Menkes v. DHS,
637 F.3d 319, 332 (D.C. Cir. 2011) (“[T]he potential ramifications of the agency’s decision
confirm that these are precisely the sort of complex, interstitial questions that the Coast Guard
deserves deference to address.”); Ill. Commerce Comm’n v. Interstate Commerce Comm’n, 749
F.2d 875, 882 n.10 (D.C. Cir. 1984) (“Because this conclusion required the agency to exercise its
expert knowledge of . . . an area in which the agency possesses a comparative advantage vis-à-
vis the courts, this court should accord substantial deference to the agency’s interpretation.”); see
also Collins, 351 F.3d at 1253; Cassidy, 471 F.3d at 84. While the record reflects debate within
the Coast Guard about the potential of a buffer zone, the Coast Guard’s stated reasons for not
including a buffer zone, which are what the Court must consider, In re Subpoena Duces Tecum,
156 F.3d at 1279, are adequately supported in the record.
In sum, the Coast Guard’s findings provide a rational explanation for the conclusion that
navigational safety will be only moderately impacted so long as the stated mitigation measures
are implemented, and the explanation is adequately supported by the administrative record. This
is all that the APA requires, and the plaintiffs’ charge that the Coast Guard’s findings are
arbitrary and capricious therefore fails. By the same token, the plaintiffs’ claim that the BOEM
violated the Shelf Lands Act by relying on the Coast Guard’s findings must also fail.
45
2. The BOEM’s Approval of the Construction and Operations Plan Without
First Obtaining Geotechnical and Geophysical Studies
The plaintiffs argue that the BOEM violated the Shelf Lands Act by approving Cape
Wind’s Construction and Operations Plan without first receiving certain geotechnical and
geophysical studies from Cape Wind. 24 Pls.’ Remain Mem. at 47-54; Pls.’ Remain Opp’n at 63-
66. The Court disagrees.
The implementing regulations of the Shelf Lands Act direct parties seeking to conduct
renewable energy projects to submit, in addition to other documentation, a Construction and
Operations Plan that includes “the results of [certain] . . . surveys for the proposed site(s) of [the]
facility(ies).” 30 C.F.R. § 585.626(a). Specifically, the Construction and Operations Plan must
include the results of shallow hazards, geographical, biological, geotechnical, and archaeological
surveys, along with supporting data. Id. (detailing information required for each type of survey).
Here, there is no dispute that the BOEM wanted Cape Wind to conduct additional and more
detailed surveys than what it had provided to the agency during the review process. See, e.g.,
Pls.’ Remain Mem. at 48-52; Fed. Defs.’ Remain Mem. at 49-53; Int. Def.’s Remain Mem. at 52.
And the record makes clear that Cape Wind represented to the BOEM that additional financing
was required prior to conducting the surveys, see CW147710; CW235267, and that such
financing would be unavailable absent approval of its Construction and Operations Plan,
CW147710. The question thus centers on whether the BOEM appropriately approved a
departure from its regulations.
BOEM’s regulations provide for a departure from the general provisions of the
regulations in certain circumstances, see 30 C.F.R. § 585.103(a), but
24
The plaintiffs’ NEPA and NHPA arguments concerning these data are addressed later in this memorandum
opinion.
46
(b) [a]ny departure approved under this section and its rationale must:
(1) [b]e consistent with [43 U.S.C. § 1337(p)] . . . ;
(2) [p]rotect the environment and the public health and safety to the same
degree as if there was no approved departure from the regulations;
(3) [n]ot impair the rights of third parties; and
(4) [b]e documented in writing.
30 C.F.R. § 585.103(b) (emphasis added).
Under 30 C.F.R. § 585.103(a), approval of a departure is appropriate to, among other
things, “[f]acilitate the appropriate activities on a lease or grant under this part.” Id.§ 585.103(a)(1). The plaintiffs argue unconvincingly that obtaining financing “is not an ‘activity
on a lease.’” Pls.’ Remain Mem. at 53 (quoting 30 C.F.R. § 585.103(a)(1)). The regulation,
however, refers not to “activities on a lease” but to the facilitation of such activities. 30 C.F.R.
§ 585.103(a)(1). Certainly, financing geophysical and geotechnical surveys is consistent with
the facilitation of “appropriate activities on a lease.” And the plaintiffs’ concern that granting a
departure for financial reasons equates to providing “no meaningful limit on what [the] BOEM
can approve without information [the] BOEM itself has determined to be required” under the
Shelf Lands Act, Pls.’ Remain Opp’n at 65, fails to take into account the substantive
requirements of 30 C.F.R. § 585.103(b), which must all be satisfied in order to warrant a lawful
departure.
Here, the requirements of 30 C.F.R. § 585.103(b) have been satisfied. Conducting the
surveys after approval of Cape Winds’ construction and operations plan is consistent with the
Shelf Lands Act’s requirement that the project be carried out in a manner that provides for
“safety” and for “protection of the environment.” See 43 U.S.C. § 1337(p)(4); 30 C.F.R.
§ 585.103(b)(1). In arguing to the contrary, the plaintiffs seem to miss that the Secretary’s
47
overall obligation under 43 U.S.C. § 1337(p)(4) to provide for safety is an obligation that applies
not only to approving individual steps of the process, such as the timing of the collection of
survey data, but rather to the entirety of the leasing process. And the plaintiffs’ suggestion that
the departure here is inconsistent with 43 U.S.C. § 1337(p) because it was not subject to notice
and comment, Pls.’ Remain Opp’n at 66, relies on a selective reading of the Shelf Lands Act,
which requires “public notice and comment on any proposal submitted for a lease,” 43 U.S.C. §
1337(p)(4)(K) (emphasis added). And a departure is not a lease proposal.
As to the remaining requirements, the Court does not find it inappropriate for the BOEM
to allow collection of data after approving the Construction and Operations Plan, given that the
data must still be collected and analyzed prior to commencing construction or otherwise
disturbing the seafloor, see, e.g., CW241409, and thus, the departure “[p]rotect[s] the
environment and the public health and safety to the same degree as if there was no approved
departure from the regulations,” 30 C.F.R. § 585.103(b)(2). The plaintiffs offer no argument that
the departure will affect the rights of any third parties, id. § 585.103(b)(3), and the Court discerns
none. Finally, the “rationale,” id. § 585.103(b)(4), for the departure is documented in writing,
see CW241409, and the departure itself is memorialized in the 2011 ROD, see CW119701-04,
and the lease itself, see CW119300-03. Although the BOEM could have more explicitly drawn a
connection between the departure and its rationale for granting it, the fact remains that both are
documented in writing in the administrative record. The regulation requires nothing more.
Accordingly, the Court finds that the BOEM complied with the Shelf Lands Act regulations
concerning the approval of departures from those regulations, and therefore grants summary
judgment to the defendants on the plaintiffs’ Shelf Lands Act claims.
48
C. Whether the Federal Defendants Violated the ESA
1. The Plaintiffs’ Claims Against the FWS
The plaintiffs contend that the FWS violated the ESA by improperly delegating to Cape
Wind and to the BOEM decisions concerning certain reasonable and prudent minimization
measures. Pls.’ ESA/MBTA Mem. at 20-29; Pls.’ ESA/MBTA Opp’n at 2-19. Specifically, they
argue that “the statutory language” of the ESA “plainly imposes an unequivocal duty on [the]
FWS to determine what [reasonable and prudent measures] are ‘necessary or appropriate to
minimize’ an action’s impact on listed species.” Pls.’ ESA/MBTA Mem. at 21 (quoting 16
U.S.C. § 1536(b)(4)). They maintain that the statute places that duty on the FWS to the
exclusion of any other entities. Id. The Court agrees.
In determining whether the FWS complied with the statutory mandates of the ESA, the
Court must again engage in the two-step inquiry set forth in Chevron, as discussed above.
Turning to the first step of the Chevron analysis, there is no question that the FWS has been
tasked with administering the ESA for certain species, 50 C.F.R. § 402.01(b), and that the Act
requires the FWS to issue an incidental take statement where it finds that agency action will
adversely impact a listed species, id. § 402.14(i). Moreover, it is clear that the FWS is required
to “[s]pecif[y] those reasonable and prudent measures that the Director considers necessary or
appropriate to minimize such impact.” Id. § 402.14(i)(1)(ii). Neither the ESA nor its
implementing regulations explicitly state whether the FWS is required to render independent
determinations concerning reasonable and prudent minimization measures included in incidental
take statements. The ESA and its regulations do state, however, that incidental take statements
must include “those reasonable and prudent measures that the Director [of] [the Fish and
Wildlife Service] considers necessary or appropriate.” Id. § 402.14(i)(1) (emphasis added); see
49
also 16 U.S.C. § 1536(b)(4)(ii) (requiring the Secretary to “specif[y] those reasonable and
prudent measures that the Secretary considers necessary or appropriate”) (emphasis added).
This Circuit construed similar statutory and regulatory language in Gerber v. Norton, 294
F.3d 173 (D.C. Cir. 2002). In Gerber, the Circuit addressed Section 10 of the ESA, 294 F.3d at
175-76, which provides that the FWS shall issue a permit for a taking “[i]f the [FWS] finds, after
opportunity for public comment, . . . that the applicant will, to the maximum extent practicable,
minimize and mitigate the impacts of such taking,” 16 U.S.C. § 1539(a)(2)(B)(ii). Gerber
considered whether “the issuance of [an] incidental take permit violated [S]ection 10 of the
ESA” where the FWS failed to make an independent determination concerning the applicant’s
mitigation of the impacts of the taking. 294 F.3d at 184-85. In that case, the FWS had
considered a “Reduced Impact Alternative” to the developer’s proposed project, but ultimately
decided against the alternative. Id. at 185. However, the Circuit noted that there was “no
evidence in the [administrative] record that the [FWS] ever made such a finding[, but the FWS]
did repeatedly observe that the developer had rejected the alternative.” Id. (emphasis in
original). “And [the FWS] noted that [the developer] did so out of concern that changing the
design would entail additional costs and delay the process of obtaining approval from” local
government entities. Id. In holding that the FWS had violated Section 10 of the ESA, the
Circuit stated that “[w]hen a statute requires an agency to make a finding as a prerequisite to
action, it must do so.” Id. at 185-86.
The defendants argue that Gerber is inapposite, because it construed a different section of
the ESA, involved different required findings, and did not involve another federal agency. See
Fed. Defs.’ ESA/MBTA Mem. at 27-28; Int. Def.’s ESA/MBTA Mem. at 23 n.13. These
arguments are unavailing. First, it is well established as a “normal rule of statutory construction
50
that identical words used in different parts of the same act are intended to have the same
meaning.” Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (citations and internal quotation marks
omitted). Here, both Sections 7 and 10 of the ESA refer to considerations and findings that “the
Secretary shall” make or reach. 16 U.S.C. § 1536(b)(4)(ii) (emphasis added); 16 U.S.C. §
1539(a)(2)(B). Moreover, neither the types of findings or considerations required in Sections 7
and 10 of the ESA nor the nature of the Section 7 consultation process have any bearing on the
fact that the FWS is the entity that must make the ultimate determination in both instances.
Here, the FWS’s incidental take statement discusses a potential “operational adjustment”
as a reasonable and prudent measure. FWS76. Specifically, the incidental take statement notes
that
[t]he [FWS] also considered a reasonable and prudent measure, an operational
adjustment to the wind facility that would require the temporary and seasonal shut
down of the [wind turbine generators] through the feathering of the rotors.
Feathering of the rotors causes them to face the wind and stop spinning, and
would reduce the risk of collision by roseate terns and, to a limited extent,
migrating piping plovers transiting the Horseshoe Shoal project area.
FWS76-77 (emphasis added). Thus here, as in Gerber, the FWS found that a particular
mitigation measure would reduce take. However, also as in Gerber, the FWS went on to discard
the proposed reasonable and prudent measure because “it was determined by [the BOEM] and
[Cape Wind] . . . to not be reasonable and prudent based on” the failure to “meet the [reasonable
and prudent measure] regulatory definition as a ‘reasonable measure’ as it modifies the scope of
[a] project in a manner that is adverse to the project’s stated purpose and need.” FWS77 (first
emphasis added). The FWS stated again that the “[BOEM] considers that this may involve more
than a ‘minor change’” under 50 C.F.R. § 402.14(j)(2). Id. (emphasis added). The remainder of
the FWS’s explanation for casting away the feathering measure is couched in phrases beginning
with statements like “[the BOEM] has also determined” and “[the BOEM] indicates.” Id.51
However, nowhere in the explanation is there an indication that the FWS made an independent
determination. This is unacceptable. While it is certainly possible that the feathering measure
would not comport with 50 C.F.R. § 402.14(i)(2), the ESA and its implementing regulations
require the FWS to make an independent determination. Because it seemingly did not do so, the
Court must grant summary judgment to the plaintiffs on their ESA claims against the FWS.
The defendants try to avoid this conclusion by pointing to places in the administrative
record where FWS personnel addressed the BOEM’s reasons for rejecting the feathering
reasonable and prudent measure. See Fed Defs.’ ESA/MBTA Mem. at 22 (citing FWS215;
FWS220). While it might be true that the FWS grappled with the issues raised by the BOEM, it
is not clear from the reasonable and prudent measures issued by the FWS that its ultimate
decision was based on its independent determination, or whether the FWS merely deferred to
determinations made by the BOEM and Cape Wind. As noted before, the reasonable and
prudent measures begin by observing that the proposed operational adjustment would reduce
take, at least to some extent. The FWS then proceeds to rely exclusively on BOEM and Cape
Wind determinations as the basis for not including the operational adjustment. Without any
indication that the FWS in fact made an independent determination about whether the adjustment
was appropriate, the Court cannot infer that such a determination ultimately factored into the
FWS’s decision.
The defendants also argue that language elsewhere in the statute and regulations suggests
that the FWS can and indeed should consult other agencies or entities in making its
determination. See, e.g., Fed. Defs.’ ESA/MBTA Mem. at 19-20 (citing 16 U.S.C. § 1536(a)(2)
and 50 C.F.R. § 402.14(g)(8)); Int. Def.’s ESA/MBTA Mem. at 21-23 (citing the same statutory
and regulatory provisions). While these provisions undoubtedly direct the FWS to consult and
52
work with other agencies and entities in carrying out its Section 7 duties, they do not in and of
themselves absolve the FWS of its responsibility to make an independent determination, albeit
after consideration of its consultations. And the Joint Consultation Handbook is not inconsistent
with this requirement. As the federal defendants point out, the Joint Consultation Handbook
directs that “[r]easonable and prudent measures and terms and conditions should be developed in
coordination with the action agency and the applicant,” FWS31117, and urges the FWS to
consult actively with action agencies based on the following understanding:
Section 7 consultation is a cooperative process. The [FWS] do[es] not have all
the answers. Actively seek the views of the action agency and its designated
representatives, and involve them in your opinion preparation, especially in the
development of reasonable and prudent alternatives, reasonable and prudent
measures, terms and conditions to minimize the impacts of incidental take, and
conservation recommendations.
FWS31010-11. While collaboration is encouraged, the Joint Consultation Handbook does not
support the notion that the FWS should have deferred to the BOEM or Cape Wind when
discarding the operational adjustment at issue without at least making clear that it was doing so
based on its own independent determination of the issue. This is especially true given the
explicit finding that implementing the operational adjustment as a reasonable and prudent
measure would, at least to some extent, decrease the take of roseate terns and piping plovers.
See FWS76. The ESA required the FWS to independently make that determination, and “it must
do so.” Gerber, 294 F.3d at 185.
2. The Plaintiffs’ Claims Against the National Marine and Fisheries Service
The plaintiffs also contend that the NMFS violated the APA and the ESA by erroneously
concluding in its biological opinion that the Cape Wind project is not likely to adversely affect
right whales, failing to establish terms and conditions for the incidental take of right whales, and
failing to analyze the effect of preconstruction geological surveys on listed sea turtles. Pls.’
53
ESA/MBTA Mem. at 34-45; Pls.’ ESA/MBTA Opp’n at 29-44. The defendants argue that the
considerations that went into and the resulting conclusions of the NMFS biological opinion
complied with the ESA and the APA. Fed. Defs.’ ESA/MBTA Mem. at 39-45; Fed. Defs.’
ESA/MBTA Reply at 19-25; Int. Defs.’ ESA/MBTA Mem. at 35-45; Int. Defs.’ ESA/MBTA
Reply at 17-25.
a. Whether the NMFS’s Biological Opinion is Arbitrary and Capricious
As the Supreme Court recently reiterated,
[r]eview under the arbitrary and capricious standard is deferential; [courts] will
not vacate an agency’s decision unless it has relied on factors which Congress had
not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise. [Courts] will, however, uphold a
decision of less than ideal clarity if the agency’s path may reasonably be
discerned.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (citations and
internal quotation marks omitted).
Here, it cannot be said that the NMFS “entirely failed to consider an important aspect of”
the impact that the Cape Wind project might have on right whales. The NMFS biological
opinion considers the status of the North Atlantic right whale, including birth rates, the
availability of food, and the effects of human-caused mortalities from net entanglements, as well
as incidents such as ship strikes, on the viability of the species. NMFS1424-32. While the
biological opinion recognized that “right whale recovery is negatively affected by human sources
of mortality, which may have a greater impact on population growth rate given the small
population size and low annual reproductive rate of right whales,” NMFS1432, the opinion
stated also that “the population trend (i.e., whether increasing or declining) provides better
information for assessing the effects of a proposed action on the species,” NMFS1427. And
54
“[a]s described in previous [biological] [o]pinions, data collected in the 1990s suggested that
right whales were experiencing a slow but steady recovery.” NMFS1427-28; see also
NMFS1432 (citing data that indicates “an increasing population size of and positive growth rate
for North Atlantic right whales”). The biological opinion also discussed “federal activities” and
“numerous [other] recovery activities [that] are being implemented to decrease the adverse
effects of private and commercial vessel operations on the species in the [Cape Wind project]
area and during the time period of th[e] consultation,” NMFS1477, as well as activities aimed at
reducing the threat caused by entanglements, NMFS1481.
The biological opinion also took into account recent aggregations of right whales in
Rhode Island Sound, Nantucket Sound, and other nearby bodies of water, NMFS1498-502, and
ultimately concluded with respect to the recent aggregations that based on “a review of the
available scientific literature[,] . . . the use of Nantucket Sound by any species of whales,
including North Atlantic right whales is extremely limited” and there were “no observations
within Horseshoe Shoal where the project will be constructed.” NMFS1501. The biological
opinion continued “that right whale use of Nantucket Sound is likely to be rare, sporadic and
extremely limited in duration and frequency” and noted further that “the habitat within
Nantucket Sound is inconsistent with the habitat where right whales are typically found.”
NMFS1502. The opinion acknowledged that
as occasional whales have been documented off of Monomoy and Great Point and
in the waters outside of Nantucket Sound that will be transited by project vessels
(i.e., Rhode Island Sound and Buzzards Bay), it is reasonable to expect that these
species may be present in those portions of the action area.
Id.55
Importantly, the biological opinion also considered that the “increase in vessel traffic will
result in some increased risk of vessel strike of listed species,” including the right whale.
NMFS1510. The opinion noted, however, that
[i]n spite of being one of the primary known sources of direct anthropogenic
mortality to whales, and to a lesser degree, sea turtles, ship strikes remain
relatively rare, stochastic events, and an increase in vessel traffic in the action
area would not necessarily translate into an increase in ship strike events. No
vessel strike events have been reported in the action area.
Id. The NMFS took into account certain mitigation measures that the BOEM and Cape Wind
proposed to further minimize any risk of ship strikes. NMFS1510-11; NMFS1514. After
considering the various mitigation measures, the frequency and location of the recent whale
aggregations, and the status of right whales generally, the NMFS biological opinion found that
“there is not a reasonable likelihood that a construction vessel associated with the Cape Wind
project originating from the Quonset, [Rhode Island] staging site will collide with a whale” and
also that “the insignificant increase in traffic” represented by support vessels associated with the
project would result in a “discountable” likelihood of ships striking right whales. NMFS1514.
The Court’s role is not to second-guess the NMFS, but rather to ascertain whether the
administrative record demonstrates that the agency has considered the “relevant data and
articulate[d] a satisfactory explanation for its action” and whether the agency’s choice reflects “a
rational connection between the facts found and the choice made.” Bluewater Network, 370
F.3d at 11. With respect to the data, the ESA requires the NMFS to consider and to evaluate the
“relevant information” available, the “current status of the listed species,” and the “cumulative
effects” the project might have on listed species. 50 C.F.R. § 402.14(g). The NMFS is further
directed to carry out its responsibilities using “the best scientific and commercial data available”
and to “give appropriate consideration to any beneficial actions taken by” the BOEM or Cape
56
Wind. Id. § 402.14(g)(8). As demonstrated above and as evident in the NMFS 2010 biological
opinion, the agency considered the relevant required information. And because the NMFS
ultimately concluded that danger to right whales, though not nonexistent, is “insignificant or
discountable,” see NMFS1531; see also NMFS1514, the Court is satisfied that the biological
opinion represents “a rational connection between the facts found” and the choice made to issue
a finding that the Cape Wind project “is not likely to adversely affect listed whales in the action
area,” NMFS1531. Accordingly, the Court finds that the NMFS did not engage in arbitrary or
capricious decision-making by issuing its 2010 biological opinion.
The plaintiffs’ arguments to the contrary fall flat. As support for their position, they
point first, Pls.’ ESA/MBTA Mem. at 35, to an article entitled “Right Whales in Rhode Island
Sound: April 2010,” see NMFS1021-25; a map depicting the location of right whale sightings in
early 2010, see NMFS1012-13, and also focus particularly on the number of mother-calf pairs
among the recent sightings, see NMFS1017; NMFS2138. But as detailed above, the NMFS
considered the recent aggregations of right whales at length in its 2010 biological opinion. See
NMFS1498-502.
The plaintiffs next quibble with the biological opinion’s treatment of the danger posed by
certain maintenance vessels that will be used during the life of the Cape Wind Project. Pls.’
ESA/MBTA Mem. at 38-44. The plaintiffs’ contention that no consideration was given to the
increased traffic attributable to the Cape Wind project’s maintenance vessels overstates the
conclusions reached in the biological opinion. See, e.g., NMFS1514 (discussing the “large
number of commercial shipping and fishing vessels” transiting the same route and stating that
“[t]he small number of additional transits (2 per day) contributed by maintenance support vessels
57
represents a minimal increase in overall vessel traffic in the area”). Rather, the biological
opinion states that
due to the limited information available regarding the incidence of ship strike[s]
and the factors contributing to ship strike events, it is difficult to determine how a
particular number of vessel transits or a percentage increase in vessel traffic will
translate into a number of likely ship strike events or a percentage increase in
collision risk.
NMFS1510. And, as noted above, such ship strikes are “relatively rare” and the minimal
increased traffic “would not necessarily translate into an increase in ship strike events.” Id.
Despite the unlikely event of a ship strike, the BOEM and Cape Wind “proposed to implement . .
. mitigation measures to further reduce the likelihood of a project vessel interacting with a
whale.” NMFS1510 (citing Appendix A to the 2010 biological opinion). 25 Among the
mitigation measures is a requirement that watercraft of different lengths adhere to varying speed
restrictions. See NMFS1576 (Appendix A to the 2010 biological opinion). It follows that the
NMFS considered speed restrictions, and concluded that the allowable speed for the maintenance
vessels was acceptable. Although the plaintiffs might wish for a clearer indication of speed
considerations in the NMFS decision, courts “uphold decision[s] of less than ideal clarity if the
agency’s path may reasonably be discerned.” Nat’l Ass’n of Home Builders, 551 U.S. at 658.
And here the Court finds the NMFS’s path to its decision concerning speed restrictions to be
reasonably clear and thus rejects the plaintiffs’ arguments that the agency must further consider
the issue.
25
The plaintiffs erroneously state that the biological opinion “requires only one measure to minimize the risk that
boats will hit right whales.” Pls.’ ESA/MBTA Mem. at 43 (citing NMFS1515). A list of mitigation measures is
found in Appendix A to the 2010 biological opinion, NMFS1576-84, which in turn references and requires
familiarity and training in accordance with certain agency implemented guidelines, NMFS1577. These guidelines
comprise operational requirements, including instructions to decrease speed or alter course when a right whale is
observed. See NOAA – National Marine Fisheries Service & National Ocean Service: Whalewatching Guidelines
for the Northeast Region Including the Stellwagen Bank National Marine Sanctuary, available at NOAA,
http://www.nmfs.noaa.gov/pr/pdfs/education/viewing_northeast.pdf (last visited Mar. 5, 2014).
58
b. Whether the NMFS Should Have Issued an Incidental Take
Statement Concerning Right Whales
The plaintiffs argue that the NMFS violated the ESA by failing to include an incidental
take statement concerning the take of right whales with its 2010 biological opinion. Pls.’
ESA/MBTA Mem. at 42; Pls.’ ESA/MBTA Mem. at 38 (citing Pac. Shores Subdivision Cal.
Water Dist. v. U.S. Army Corps of Eng’rs, 538 F. Supp. 2d 242, 261 (D.D.C. 2008)). The Court
agrees.
The implementing regulations of the ESA provide that one of the NMFS’s
responsibilities during formal consultation is to “[f]ormulate a statement concerning incidental
take, if such take may occur.” See 50 C.F.R. § 402.14(g)(7). While this Circuit has not
addressed whether the regulations require the issuance of an incidental take statement where take
is not reasonably certain, the Ninth Circuit has ruled that a statement is generally required. Ctr.
for Biological Diversity v. Salazar, 695 F.3d 893, 910 (9th Cir. 2012) (stating that an incidental
take statement is required where threatened or endangered species “are present in the [action]
area” and the agency action is “reasonably certain to result in at least some nonlethal
harassment”). And a former member of this Court explicitly held that an incidental take
statement is required when take might occur, even where take is unlikely. In Pacific Shores
Subdivision California Water District v. United States Army Corps of Engineers, the FWS and
the Corps of Engineers had entered into formal consultation under Section 7 of the ESA. 538 F.
Supp. 2d at 246. At the conclusion of the consultation, the FWS issued a biological opinion
which found, among other things, that the proposed agency action “‘[was] not likely to
jeopardize the continued existence’ of any of the listed species.” Id. Although “the FWS
established that brown pelicans [were] present in the affected area and admitted that the brown
pelicans face a greater risk of take as a result” of the agency action, “the FWS failed to issue an
59
incidental take statement for the brown pelican.” Id. at 261. The defendants claimed that the
omission complied with the regulations due to “the low probability of take.” Id. However, the
Court found that
[t]his is a flawed interpretation of the FWS’s statutory obligation. The term
“may” is broadly interpreted under ESA regulations and the FWS’s obligation to
issue an incidental take statement was triggered by the possibility of take of the
brown pelican, regardless of how unlikely that possibility may have seemed. 51
Fed. Reg. 19926, 19949 (June 3, 1986) (endorsing the definition of “may effect”
for purposes of 50 C.F.R. § 402.14(a) as “[a]ny possible effect, whether
beneficial, benign, adverse, or of an undetermined character.”). Accordingly, the
FWS’s biological opinion is arbitrary and capricious because it fails to consider
incidental take of the brown pelican.
Id. (second alteration in original) (citation omitted).
The Joint Consultation Handbook is not to the contrary. Rather, the Handbook includes a
standardized incidental take statement for situations “when no take is anticipated,” which in turn
suggests that the incidental take statement read as follows: “The Service does not anticipate the
proposed action will incidentally take any (species).” FWS31115.
Here, the NMFS included no incidental take statement for right whales, despite the fact
that the whales have traversed the Cape Wind project area and appeared along routes that will be
traveled by project vessels. And while the biological opinion states that the “NMFS [] concluded
that the proposed action is not likely to adversely affect right . . . whales and, therefore, is not
likely to jeopardize the[ir] continued existence,” NMFS1534, the NMFS did not state that
incidental take would not occur or was “not anticipated.” Accordingly, because incidental take
“may occur,” 50 C.F.R. § 402.14(g)(7), the NMFS was required to include an incidental take
statement with its biological opinion, and its failure to do so was arbitrary and capricious.
The federal defendants argue that no incidental take statement was required because the
“NMFS determined that [incidental] take [of right whales] would not occur,” Fed. Defs.’
60
ESA/MBTA Mem. at 44 (citing NMFS1531; NMFS1534-37); see also Fed. Defs.’ ESA/MBTA
Reply at 23 (“The administrative record shows that NMFS determined that take of right whales
was unlikely to occur.”), and cite Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife
Service, No. Civ 99-0673PHX RCB, 1999 WL 33722331, at *13 (D. Ariz. Dec. 14, 1999), aff’d,
273 F.3d 1229 (9th Cir. 2001), as support for their position. Contrary to the federal defendants’
assertions, the Ninth Circuit did not affirm the district court’s holding in Arizona Cattle that “an
[incidental take statement] is appropriate only when a take has occurred or is reasonably certain
to occur.” Fed. Defs.’ ESA/MBTA Reply at 22-23. Rather, the Ninth Circuit held that “it is
arbitrary and capricious to issue an [i]ncidental [t]ake [s]tatement when the Fish and Wildlife
Service has no rational basis to conclude that a take will occur incident to the otherwise lawful
activity.” Arizona Cattle, 273 F.3d at 1242. That holding was later clarified in Center for
Biological Diversity, where the Ninth Circuit said of its holding in Arizona Cattle: “We held in
that case that the Service could not attach binding conditions on permittees via an [incidental
take statement] where no listed species were present in the area and thus the agency ‘ha[d] no
rational basis to conclude that a take will occur incident to the otherwise lawful activity.’” Ctr.
for Biological Diversity, 695 F.3d at 910. Here, unlike in Arizona Cattle where there was no
evidence of the endangered species in the action area, there is evidence in the record that right
whales traverse the action area as well as the routes traveled by the project vessels. An
incidental take statement was therefore required.
The federal defendants also argue in a footnote that “[b]ecause Cape Wind has no
incidental take coverage for right whales, if there is a whale strike in the action area, which
would be the first of its kind in record history, NMFS1510, [the] NMFS would need to reinitiate
consultation.” Fed. Defs.’ ESA/MBTA Reply at 23 n.24. In making that assertion, the federal
61
defendants cite 50 C.F.R. § 402.16, which requires reinitiation of formal consultation when,
among other things, “the amount or extent of taking specified in the incidental take statement is
exceeded” or “new information reveals effects of the action that may affect listed species . . . in a
manner or to an extent not previously considered.” See 50 C.F.R. §§ 402.16(a), (b). The federal
defendants’ reading of the regulation does not make sense. In order for the “amount or extent of
taking specified in the incidental take statement” to be “exceeded,” it must be specified in the
first place. 26 Id. § 402.16(a). Further, a single whale strike would not necessarily rise to the
level of an “effect[] . . . not previously considered,” id. § 402.16(b), where the danger of a whale
strike has not been deemed impossible, but rather “not likely.” At what number of whale strikes
would the likelihood increase above “not likely” such that reinitiation of consultation would be
required? The Court cannot answer that question, but rather the issue should have been
addressed in an incidental take statement. Because the failure to include an incidental take
statement was arbitrary and capricious, and the Court must thus grant summary judgment to the
plaintiffs and remand the matter to the NMFS so that it can comply with the ESA and issue an
incidental take statement for the take of right whales along with its biological opinion.
c. Whether the NMFS Failed to Analyze the Effect of Construction on
Listed Sea Turtles
The plaintiffs contend that the federal defendants “violated the ESA and APA by failing
to analyze the effect of noise from greatly expanded preconstruction surveys on listed sea
turtles.” Pls.’ ESA/MBTA Mem. at 44; see also Pls.’ ESA/MBTA Opp’n at 41-44. In particular,
the plaintiffs challenge the notion that “an increase of 10 to 20 times as many survey hours and a
26
To be sure, “[t]hat limit may be zero; that is, a valid [incidental take statement] may exempt no take.” Town of
Superior v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d 1087, 1143 (D. Colo. 2012) (citing Natural Res. Def.
Council, Inc. v. Evans, 232 F. Supp. 2d 1003, 1051 (N.D. Cal. 2002)). However, whether a threshold of zero is what
was intended is not for the Court to say, but rather for the NMFS.
62
larger survey area” considered in the 2010 biological opinion “could possibly result in the same
level of harassment to turtles as the smaller survey” contemplated in the 2008 biological opinion.
Pls.’ ESA/MBTA Opp’n at 42. They are wrong.
To be sure, there is a considerable difference in the anticipated number of survey hours
contemplated by the two biological opinions. Compare NMFS920 (considering “one 36-hour
sampling event”), with NMFS1526 (“The applicant anticipates up to 5 months of survey activity
to cover the survey area, with between 330 and 660 hours of survey effort during this time.”).
And there is no question that the incidental take statements in both biological opinions exempted
the same number of turtles. Compare NMFS1414, with NMFS1536. But as the defendants point
out, see Fed. Defs.’ ESA/MBTA Mem. at 44, the NMFS exempted take of sea turtles with
reference to the density of sea turtles that would be affected, see NMFS929 (2008 incidental take
statement); NMFS1536 (2010 incidental take statement). 27 And although “Congress indicated its
preference for a numerical value” in incidental take statements, “it anticipated situations in which
impact could not be contemplated in terms of a precise number.” Arizona Cattle, 273 F.3d at
1250.
The plaintiffs assert that the 2008 biological opinion and incidental take statement
considered only the “project footprint,” whereas the 2010 biological opinion and incidental take
statement “include not only the footprint of the facility but also the transmission line to shore.”
Pls.’ ESA/MBTA Mem. at 44. While it is true that one sentence in the 2008 biological opinion
states that “[o]nly the project footprint on Horseshoe Shoal would be surveyed,” NMFS920, the
opinion states elsewhere that the surveys would cover “the offshore construction footprints and
associated work areas for all facility components, including the [wind turbine generators], the
27
Density is measured by the number of individuals of a species present within a given area. See, e.g., Davis.
Latschar, 202 F.3d 359, 361 (D.C. Cir. 2000). It does not refer to the total population of a species. Id.
63
[electrical service platform], the inner array cables and the 115kV transmission cables to shore,”
NMFS830. Furthermore, the 2008 and 2010 biological opinions each provide the same number
of square kilometers that would be affected by the surveys. Compare NMFS929 (“During the
survey, an area of approximately 148 square kilometers will be surveyed.”), with NMFS1536
(same). Thus, although there is some contradiction within the 2008 biological opinion as to the
area considered for the survey, the contradiction does not, on the whole, suggest that the NMFS
considered a larger survey area in 2010 than it did in 2008. Rather, there appears to be a
“rational connection” between the facts found and the choice made, Bluewater Network, 370
F.3d at 11, and the Court therefore concludes that the NMFS’s consideration of the effects of the
preconstruction surveys on sea turtles complied with the ESA and was not arbitrary or
capricious. Accordingly, the Court grants summary judgment to the defendants as to the
NMFS’s incidental take statement for affected sea turtles.
D. The Plaintiffs’ Migratory Bird Treaty Act Claims
The plaintiffs also argue that they are entitled to summary judgment because the BOEM
has violated the Migratory Bird Treaty Act by approving the Cape Wind project without first
obtaining a permit from the FWS for the taking of migratory birds. Pls.’ ESA/MBTA Mem. at
29-34. In particular, they argue that “where, as here, (1) [an agency] concede[s] that the project
[it] was asked to approve will . . . [take] migratory birds . . . , and (2) no [Migratory Bird Treaty
Act] permit authorizes that take, then” the agency approval of the project is “‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” Pls.’ ESA/MBTA
Opp’n at 21 (quoting 5 U.S.C. § 706(2)(A)) (emphasis removed). The defendants respond that
the “BOEM was not required to obtain a[] [Migratory Bird Treaty Act] permit before approving
64
the Cape Wind project.” Fed. Defs.’ ESA/MBTA Mem. at 29; see also Int. Def.’s ESA/MBTA
Mem. at 27-32. 28 The Court agrees.
This Circuit “has held that the [Migratory Bird Treaty Act] applies to federal agencies.”
Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 (D.C. Cir. 2008) (citing Humane
Soc’y of the United States v. Glickman, 217 F.3d 882, 885-86 (D.C. Cir. 2000)). And the
Migratory Bird Treaty Act’s implementing regulations provide that “[a] special purpose permit is
required before any person may lawfully take . . . migratory birds, their parts, nests, or eggs for
any purpose not covered by the standard form permits” included elsewhere in the regulations. 50
C.F.R. § 21.27(a). But on its face, the Migratory Bird Treaty Act does not appear to extend to
agency action that only potentially and indirectly could result in the taking of migratory birds.
Rather, the text of the Act simply makes “unlawful” the taking of migratory birds, 16 U.S.C. §
703(a), and its implementing regulations provide for a “special purpose permit . . . before any
person may lawfully take . . . migratory birds,” 50 C.F.R. § 21.27(a) (emphasis added). There is
no mention of which entities must obtain a special purpose permit, nor is there an explicit
requirement that the permit be obtained at any time except “before” the taking occurs. Id. Even
if the taking of migratory birds takes place at some point in the future, it is clear that no such
taking has yet occurred and is not imminent at this point because construction of the Cape Wind
project has not begun and the wind turbine generators that might take migratory birds are not
operational.
28
Cape Wind additionally argues that the plaintiffs’ reading of the statute is too broad and would lead to absurd
results, Int. Def.’s ESA/MBTA Mem. at 32-34 (“The legislative history of the [Migratory Bird Treaty Act] makes
clear that the Act was passed to restrict human activity[, i.e., hunting or poaching,] directed at wildlife” (original
emphasis)), but “[t]he [f]ederal [d]efendants do not join and in fact strongly disagree with Cape Wind Associates’ []
arguments regarding the scope of the [Migratory Bird Treaty Act] . . . ,” Fed. Defs.’ ESA/MBTA Reply at 14 n.13.
“The general rule in this [C]ircuit is that ‘[i]ntervenors may only argue issues that have been raised by the principal
parties.’” Ass’n of Battery Recyclers, Inc., 716 F.3d at 675 (quoting Nat’l Ass’n of Regulatory Util. Comm’rs, 41
F.3d at 729). Accordingly, the Court declines to address Cape Winds’ statutory interpretation argument.
65
Given the statutory and regulatory text, the Court finds that the BOEM did not violate the
Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might
result in the taking of migratory birds. As the Circuit stated in Glickman, “[a]s § 703 is written,
what matters is whether someone has killed or is attempting to kill or capture or take a protected
bird, without a permit and outside of any designated hunting season.” 217 F.3d at 885. No such
taking is yet reasonably certain. The Court therefore grants summary judgment to the defendants
on the plaintiffs’ Migratory Bird Treaty Act Claims.
The plaintiffs cite several cases in support of their position that the BOEM’s was required
to obtain a permit prior to authorizing the Cape Wind project, but these cases are inapposite.
American Bird Conservancy did not hold that a federal agency’s “approval of actions in violation
of” the Migratory Bird Treaty Act constitutes agency action that is “‘contrary to law’ under the
APA.” Pls.’ ESA/MBTA Mem. at 33 (citing Am. Bird Conservancy, 516 F.3d at 1031). Rather,
the Circuit merely stated that the Federal Communications Commission had “acted reasonably in
deferring consideration of [the Migratory Bird Treaty Act] issue” in that case because the agency
had indicated that it was in the midst of an “ongoing nationwide proceeding” concerning its
approach to compliance with the Act. Am. Bird Conservancy, 516 F.3d at 1032. And the
circumstances of Glickman are not analogous to this case, because there the agency itself was
planning to take migratory birds. 217 F.3d at 884. Indeed, the cases cited by the plaintiffs each
involve cases where the violations of the Migratory Bird Treaty Act were attributed to the party
who committed the taking. See Pls.’ ESA/MBTA Mem. at 31-32 (citing United States v. Apollo
Energies, Inc., 611 F.3d 679, 682 (10th Cir. 2010) (“Appellants are two Kansas oil drilling
operators who were charged with violating the [Migratory Bird Treaty] Act after dead migratory
birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater.”);
66
United States v. CITGO, 893 F. Supp. 2d 841, 842 (S.D. Tex. 2012) (“According to the
Indictment, . . . [killed migratory] birds were found in tanks owned by [the defendants].”);
United States v. Moon Lake Elec. Ass’n, 45 F. Supp. 2d 1070, 1071 (D. Colo. 1999) (“The
government alleges that Moon Lake has failed to install inexpensive equipment on 2,450 power
poles, causing the death or injury of 38 birds of prey . . . .”); United States v. Corbin Farm Serv.,
444 F. Supp. 510, 514-15 (E.D. Cal. 1978) (charging the defendants with causing the death of
several migratory birds by improperly applying pesticides to an alfalfa field)).
The plaintiffs argue that a recent NMFS application to the FWS for a permit authorizing
incidental take of migratory birds lends support to their assertion that the BOEM should have
applied for a permit in this case. See Pls.’ ESA/MBTA Mem. at 29 (citing Special Purpose
Application: Hawaii Longline Fishery, 77 Fed. Reg. 1501, 1502 (Jan. 10, 2012)). But the
existence of this application does not save the plaintiffs’ claims. The application concerned the
Hawaii-Based Shallow-Set Longline Fishery, a third-party project regulated by the NMFS which
became operational “in the late-1980s.” 77 Fed. Reg. at 1502. Thus, even if it is necessary for
the BOEM to apply for a permit from the FWS, it is not clear that the BOEM is required to do so
prior to when the Cape Wind project becomes operational, or at least not until the construction
has advanced to the point when the potential take of migratory birds would be considerably more
imminent than it is now.
E. The Plaintiffs’ Preservation Act Claims
All of the plaintiffs argue that they are entitled to summary judgment on their
Preservation Act claims because the federal defendants engaged in allegedly untimely and
meaningless Section 106 consultation and failed to identify on-shore historic properties in good
faith. Pls.’ Remain Mem. at 60-66; Pls.’ Remain Opp’n at 70-74; Wampanoag Mem. at 13-25;
67
Wampanoag Opp’n at 5-17. The PEER, Alliance, and Town of Barnstable plaintiffs additionally
argue that the federal defendants violated the Preservation Act by failing to conduct geographical
and geotechnical surveys in accordance with the Shelf Lands Act regulations. Pls.’ Remain
Mem. at 57-60; Pls.’ Remain Opp’n at 58-66. The defendants unsurprisingly assert that the
BOEM conducted timely and meaningful Section 106 consultation, properly identified historic
properties, and did not otherwise violate the Preservation Act. Fed. Defs.’ Remain Mem. at 58-
68; Int. Def.’s Remain Mem. at 64-71; Fed. Defs.’ Remain Reply at 15-17, 27-32; Int. Def.’s
Remain Reply at 23-30, 34-36; Fed. Defs.’ Wampanoag Mem. at 11-35; Int. Def.’s Wampanoag
Mem. at 16-30; Fed. Defs.’ Wampanoag Reply at 2-15; Int. Def.’s Wampanoag Reply at 3-17.
1. Whether the BOEM’s Section 106 Consultation was Untimely
The Preservation Act is a procedural statute that requires federal agencies to “‘stop, look,
and listen,’” or stated another way, “it requires federal agencies to take into account the effect of
their actions on structures eligible for inclusion in the National Register of Historic Places.” Ill.
Commerce Comm’n v. Interstate Commerce Comm’n, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988).
A federal agency is not required “to engage in any particular preservation activities; rather,
Section 106 only requires that the [agency] consult the [State Historic Preservation Officer] and
the [Advisory Council on Historic Preservation] and consider the impacts of its undertaking.”
Davis v. Latschar, 202 F.3d 359, 370 (D.C. Cir. 2000). And where, as here, the undertaking
involves “historic properties of significance to Indian Tribes,” the agency must also consult and
consider the views of the affected tribes. See 36 C.F.R. § 800.2(c)(2)(ii). While an agency is
required to “ensure that the [S]ection 106 process is initiated early in the undertaking’s
planning,” there is little statutory guidance as to the appropriate timeline except that the timing
should allow for “a broad range of alternatives [to] be considered during the planning process for
68
the undertaking.” Id. § 800.1(c). The regulations do suggest, but do not require, that an agency
“should coordinate the steps of the [S]ection 106 process, as appropriate, . . . with any reviews
required under other” statutes, including the NEPA. Id. § 800.3(b). An agency also “must
complete the [S]ection 106 process ‘prior to the approval of the expenditure of any Federal funds
on the undertaking or prior to the issuance of any license,’” but “[t]his does not prohibit [an]
agency . . . from conducting or authorizing nondestructive project planning activities before
completing compliance with [S]ection 106, provided that such actions do not restrict the
subsequent consideration of alternatives to avoid, minimize or mitigate the undertaking’s adverse
effects on historic properties.” Id. § 800.1(c).
The administrative record demonstrates that these criteria were satisfied. The Section
106 consultation process began in 2005, CW112019, well before the 2010 Record of Decision
documenting the BOEM’s decision to issue a lease for the Cape Wind project. The State
Historic Preservation Officer and the Advisory Council were both included as consulting parties,
see CW44617; CW112019, as was the Wampanoag Tribe of Gay Head (Aquinnah), CW112021.
The 2010 Record of Decision acknowledges and explains its reasons for divorcing the NEPA and
Preservation Act timelines, explaining that rather than proceeding with a historic property
identification methodology that commenters found objectionable, the BOEM began its
identification process anew with a different identification methodology. CW112021. The
Section 106 consultation process thus involved the appropriate parties and was not conducted in
an untimely fashion.
The plaintiffs cite several documents in the administrative record as support for their
position that the consultation was subject to an arbitrary deadline. Pls.’ Remain Mem. at 62
(citing CW224910; CW359834; CW178879). This is a red herring. The documents comprise
69
emails in which BOEM personnel “jot[ted] down a rough timeline” that was “not cast[] in stone
but rather can serve as points of discussion,” CW224910, or other schedules for the completion
of various pieces of the administrative process, see CW359832-34 (“Critical Action Dates”);
CW178879 (schedule). The fact that the BOEM created schedules does not mandate the
conclusion that the agency did not intend to comply with its obligation to appropriately consider
the impacts of the Cape Wind project on historical properties. Neither the Preservation Act nor
its implementing regulations forbid the creation of schedules, and the plaintiffs cite no support
for their position to the contrary.
2. Whether the BOEM’s Section 106 Consultation was Meaningless or
Otherwise not Conducted in Good Faith
The plaintiffs first argue that the Cape Wind project “required far more” time to identify
historic properties “than could be completed in five months.” Pls.’ Remain Mem. at 63; see also
Wampanoag Mem. at 13-15. This disregards the facts. Even ignoring that consultation began in
2005, the administrative record is clear that comments on the draft EIS spurred the BOEM to
renew efforts to identify affected historic properties and landmarks in 2008, and that consultation
did not conclude until April 2010 with the Advisory Council comment terminating the
consultation process. CW112021-24.
The plaintiffs also complain that the BOEM’s renewed identification efforts were
considered “insufficient” by the consulting parties, Wampanoag Mem. at 20-21; Pls.’ Remain
Mem. at 63, and cite, for example, an October 6, 2008 comment from the Martha’s Vineyard
Commission indicating that “hundreds, if not, thousands” of properties remained to be
considered, CW224865. But these comments were taken into account. While the plaintiffs
correctly note that the “BOEM’s environmental consultant . . . agreed that these comments had
‘merit,’” Pls.’ Remain Mem. at 63 (citing CW195859-65), the consultant merely suggested that
70
the BOEM “re-evaluat[e] . . . the [area of potential effect]” and stated that if the BOEM
“determines that a [good faith effort] to identify has been conducted,” then the BOEM should
respond as such to the comments, CW195859. Indeed, and as the consultant recognized,
“[a]rbitrary statements such as ‘there are other properties which were not included’ are not
specific enough to be helpful to the process of identifying properties.” Id. And as this Circuit
has stated, “[t]he regulations do not expressly require agencies in all cases completely to survey
impact areas, and in fact recognize that the need for surveys will vary from case to case.”
Wilson v. Block, 708 F.2d 735, 754 (D.C. Cir. 1983). Where, as here, “both the . . . survey[s],
and all other evidence, indicate that a complete survey would be fruitless,” further surveys are
not required. Id. In any event, the comments did not present “other evidence” which suggested
that further surveys would be beneficial, but rather stated in general terms that “other properties”
existed. This is not enough to render the BOEM’s identification efforts inadequate. Importantly,
the Advisory Council’s final comment terminating the Section 106 consultation noted that while
the BOEM’s “initial investigation of historic properties” included only “‘designated’ historic
properties,” eventually “these important issues” were “resolved.” CW112699. The Advisory
Council also stated that “the survey effort appears to have been sufficient to assess the potential
for archaeological resources.” CW112700.
The Wampanoag Tribe of Gay Head (Aquinnah) additionally argues that the “BOEM
dismissed the Tribe’s position that the Sound itself, rather than the specific locations from which
they viewed it, was a Traditional Cultural Property.” Wampanoag Mem. at 16. This is incorrect.
The final EIS and the 2010 Record of Decision each consider various cultural impacts, including
“[t]he altered view of the eastern horizon” and the Wampanoag Tribe of Gay Head’s “belie[f]
that the [Cape Wind project] would destroy the archaeological evidence of their history
71
throughout the Sound, including Horseshoe Shoal.” CW111975-76; see also CW157192;
CW157196-201. And the final EIS discusses and acknowledges the fact that “[t]he Wampanoag
consider the entirety of Nantucket Sound to be ancestral lands.” CW157201. Thus, although the
BOEM disagreed with the Wampanoag Tribe of Gay Head (Aquinnah)’s position that the Sound
was eligible as a Traditional Cultural Property, there is evidence in the record that the agency
took its view into account. The Preservation Act does not mandate a specific outcome, but rather
requires only that an agency consider the impact of its actions. Davis, 202 F.3d at 370. The
BOEM satisfied this requirement. And because it took these views into account, the subsequent
determination by the Keeper that Nantucket Sound was in fact eligible for listing in the National
Register does not change the Court’s conclusion.
The Wampanoag Tribe of Gay Head (Aquinnah)’s remaining Preservation Act arguments
fail for similar reasons. While the Tribe takes issue with the manner in which the Section 106
consultation occurred, see Wampanoag Mem. at 18-25, the administrative record demonstrates
that its views were considered, see, e.g., CW157196-201; CW111975-76. Even the Advisory
Council’s final comment, though expressing displeasure with various aspects of the Section 106
consultation process, found that “in spite of” early problems with the process,
the record shows that the tribes clearly identified their concerns about the effects
of the undertaking on [traditional cultural properties] and about the importance of
Nantucket Sound as a [traditional cultural property] and the location of former
aboriginal lands in 2004. In 2009, [the BOEM] took steps to remedy deficiencies
in the tribal consultation process by participating in site visits and consultation
meetings on Cape Cod and the Islands.
CW112699-700. The plaintiffs’ disagreement with the BOEM’s decision to approve the Cape
Wind project does not mandate the conclusion that Section 106 consultation was conducted in
bad faith.
72
3. Whether the BOEM Violated the Preservation Act by Failing to Obtain
Geotechnical and Geophysical Surveys Required by the Shelf Lands Act
Finally, the plaintiffs argue that the defendants’ failure to obtain certain geophysical and
geotechnical surveys required by the implementing regulations of the Shelf Lands Act renders
inadequate the BOEM’s survey efforts for potential cultural resources on the seabed. Pls.’
Remain Mem. at 57-60; Pls.’ Remain Opp’n at 58-66. While there is undoubtedly some overlap
between the surveys required for compliance with the Preservation Act and the Shelf Lands Act,
the plaintiffs have pointed to no requirement within the Preservation Act mandating the
completion of Shelf Lands Act surveys prior to concluding surveys for subsurface archaeological
resources.
Because Section 106 consultation was conducted with the appropriate parties, was neither
untimely nor conducted in bad faith, and because the Preservation Act does specify that the Shelf
Lands Act geophysical and geotechnical surveys be conducted prior to conclusion of Section 106
consultation, the Court grants summary judgment in favor of the defendants on the plaintiffs’
Preservation Act claims.
F. The Plaintiffs’ NEPA Claims
The plaintiffs have moved for summary judgment on their NEPA claims on several
grounds. The PEER, Alliance, and Barnstable plaintiffs argue that the final EIS was deficient
because it lacked necessary information, did not sufficiently review alternatives, and did not
sufficiently address cumulative impacts on wildlife. Pls.’ Remain Mem. at 68-80; Pls.’ Remain
Opp’n at 93-99. They also argue that Cape Wind’s Construction and Operation Plan constituted
a new major federal action that required a new EIS or at the very least a supplemental EIS. Pls.’
Remain Mem. at 81-89; Pls.’ Remain Opp’n 86-92. The Wampanoag Tribe of Gay Head
(Aquinnah) argues that the BOEM violated the APA and the NEPA by failing to address the
73
impact that the Cape Wind project would have on subsistence fishing, as well as by failing to
prepare a supplemental EIS subsequent to the Keeper’s determination that the Nantucket Sound
is eligible for inclusion on the National Register of Historic Places. Wampanoag Mem. at 25-43;
Wampanoag Opp’n at 17-21.
Like the Preservation Act, the “NEPA’s mandate ‘is essentially procedural.’” Nevada v.
Dep’t of Energy, 457 F.3d 78, 87 (D.C. Cir. 2006) (quoting Vt. Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)). It “requires each agency to assess
the environmental consequences of ‘major [f]ederal actions’ by following certain procedures
during the decision-making process,” including the preparation of an EIS. Id. (quoting 42 U.S.C.
§ 4332(2)(C)). “At the ‘heart of the [EIS]’ is the requirement that an agency ‘rigorously explore
and objectively evaluate’ the projected environmental impacts of all ‘reasonable alternatives’ to
the proposed action.” Id. (quoting 40 C.F.R. § 1502.14).
1. The BOEM’s Purpose and Need Statement
The plaintiffs contend that the need and purpose statement contained in the EIS was
deficient. Pls. Remain Mem. at 75-77. In evaluating the adequacy of an agency’s NEPA
decision-making, the Court “review[s] both [the] agency’s definition of its objectives and its
selection of alternatives.” Theodore Roosevelt Conservation P’ship v. Salazar (“Theodore
Roosevelt Conservation II”), 661 F.3d 66, 73 (D.C. Cir. 2011). So “long as the agency ‘look[s]
hard at the factors relevant to the definition of purpose,’” courts must “generally defer to the
agency’s reasonable definition of objectives.” Id. (quoting Citizens Against Burlington v. Busey,
938 F.2d 190, 196 (D.C. Cir. 1991)). On the other hand, courts must also “reject an
‘unreasonably narrow’ definition of objectives that compels the selection of a particular
alternative.” Id. (quoting Citizens Against Burlington, 938 F.2d at 196).
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Here, the final EIS defined the purpose and need for the project as follows:
[T]o provide an alternative energy facility that utilizes the unique wind resources
in waters offshore of New England using a technology that is currently available,
technically feasible, and economically viable, that can interconnect with and
deliver electricity to the New England Power Pool (NEPOOL), and make a
substantial contribution to enhancing the region’s electrical reliability and
achieving the renewable energy requirements under the Massachusetts and
regional renewable portfolio standards (RPS).
CW65082. Especially when considered in light of Cape Wind’s proposal “to build, operate, and
eventually decommission a wind energy facility . . . in Nantucket Sound,” id., the statement of
need and purpose in the final EIS is reasonable. While it is clear that the Cape Wind proposal
seeks a particular outcome, the final EIS objectives are much broader. Namely, there is no
mention of a specific body of water or of a specific type of energy facility. Rather, the statement
calls for a facility that “us[es] a technology that is currently available, technically feasible, and
economically viable.” Id. The stated objective is even broader than the definition of objectives
in Theodore Roosevelt Conservation II, which the Circuit found to be reasonable despite the fact
that the objectives in that case concerned one specific project proposal. 661 F.3d at 73 (finding
reasonable a stated purpose and need “to act upon the Proponents’ proposal to revise . . . [a]
[record of decision] to expand the level of development by drilling 4,399 new producing wells
and to relax seasonal restrictions in certain areas” (internal quotation marks omitted)). The
Circuit considered and rejected the appellant’s argument in Theodore Roosevelt Conservation II
that the objectives were “unreasonably narrow,” after noting that “[t]he Bureau does not state a
purpose to enact or adopt the Operators’ proposal to some degree; rather, its purpose is to ‘act
upon’ that proposal.” Id. (emphasis in original). The stated objectives in this case are similarly
broad. The BOEM does not seek to enact or adopt a specific proposal, but rather seeks to
provide energy to a certain region of the country using an offshore alternative energy resource.
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While it is true that the statement of purpose and need could have been even broader, the
statement was not unreasonably narrow. Accordingly, the Court finds that the statement of need
and purpose in the final EIS is not arbitrary or capricious.
2. The Range of Alternatives
The plaintiffs argue that the final EIS did not consider a reasonable range of alternatives.
Pls.’ Remain Mem. at 74. The Court disagrees. The final EIS lists ten alternative sites for the
offshore wind project:
1. Offshore Portland, Maine
2. Offshore Cape Ann, Massachusetts
3. Offshore Boston, Massachusetts
4. Offshore Nauset, Massachusetts (east of Nauset Beach)
5. Nantucket Shoals (southeast of Nantucket Island, Massachusetts)
6. Phelps Bank (southeast of Nantucket Island, Massachusetts)
7. East of Block Island, Rhode Island
8. Monomoy Shoals (east of Monomy, Massachusetts)
9. South of Tuckernuck Island
10. Horseshoe Shoals (proposed action)
CW65138. The final EIS sets forth the BOEM’s rationale for addressing the alternative sites:
The sites were chosen based on geographic diversity, having at least some
potential in terms of wind resources, and the necessary area required for the
proposed facility size. The Phelps Bank site was chosen as a result of a
comment/request from the Massachusetts Office of CZM that an alternative be
evaluated for a site located more than 25 miles (40 km) offshore with water
depths less than 150 feet. The Offshore Nauset site was chosen as a result of
agency interests in comparing a deep water alternative.
Id. Additionally, several “[n]on-geographic alternatives,” which include “design alternatives”
such as “modifications to the proposed action that reduce the scope . . . or temporal impacts”
were considered, including:
• Smaller Alternative (half of the [megawatt] capacity of the proposed action at
the same location)
• Condensed Array Alternative
• Phased Development Alternative
• No Action Alternative.
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CW65139.
Seven of the geographic alternatives were “screened out” because they failed to comport
with the statement of need and purpose. CW65139-42 (eliminating geographic alternatives due
to, among other considerations, water depth, hostile seabed conditions, and distance from shore).
Thus, “further detailed analysis was not conducted and the reasons that each site was eliminated”
were briefly discussed in the final EIS. Id. The remaining geographic alternatives and all four
non-geographic alternatives were subsequently described at length, compared to the proposed
action (that is, to the Cape Wind proposal), and examined with an eye toward numerous
environmental, safety, socioeconomic, and cultural considerations, among others. CW65626-81.
Given this detailed and thorough analysis, the Court finds that the BOEM “selected a reasonable
range of alternatives in light of its purpose.” Theodore Roosevelt Conservation II, 661 F.3d at
74-75.
3. Whether the BOEM Acquired Information Sufficient to Characterize
Environmental Impacts.
The plaintiffs complain that the “BOEM repeatedly deferred critical studies that NEPA
requires,” including additional data that the FWS suggested be obtained to assess the impact on
birds, Pls.’ Remain Mem. at 68-73, and on “navigational safety, shallow hazards safety, site
characterization and archaeological resources,” id. at 73-74. The Wampanoag Tribe of Gay
Head (Aquinnah) additionally argues that the potential impact on subsistence fishing was a factor
not adequately considered by the BOEM. Wampanoag Mem. at 25-32.
As the Supreme Court has noted, “[w]hen specialists express conflicting views, an
agency must have discretion to rely on the reasonable opinions of its own qualified experts even
if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or.
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Natural Res. Council, 490 U.S. 360, 378 (1989). Thus, “[a]lthough an agency should consider
the comments of other agencies, it does not necessarily have to defer to them when it disagrees.”
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999). Here, the
record indicates that the BOEM considered the FWS’s recommendation to collect additional data
concerning the impact on birds, but ultimately the BOEM decided that it had enough data to
complete its EIS. See CW67697-770 (responding to comments suggesting that the BOEM
obtain additional information about the project’s impacts on migratory birds). And while the
plaintiffs are correct, Pls.’ Remain Mem. at 70, that NEPA regulations require the inclusion of
information in an EIS where the “information [is] relevant to reasonably foreseeable significant
adverse impacts” and “is essential to a reasoned choice among alternatives,” 40 C.F.R.
§ 1502.22(a), the plaintiffs have made no showing that the additional data was “essential.”
Indeed, the FWS did not characterize the missing data as essential when it referenced those data
in its own biological opinion. See FWS4 (“[T]he unimplemented studies would not necessarily
yield information that would have significantly addressed the uncertainties in the analysis . . . .”).
The plaintiffs’ concerns about “navigational safety, shallow hazards safety, site
characterization and archaeological resources,” are based on the same arguments advanced with
respect to the Coast Guard’s findings and the Shelf Lands Act. See Pls.’ Remain Mem. at 73.
Because the Court has concluded that the Coast Guard’s findings are adequately supported by the
administrative record, and because the Court has found that the BOEM did not violate the Shelf
Lands Act, these arguments also cannot support the plaintiffs’ NEPA claims.
As noted earlier, the Wampanoag Tribe of Gay Head (Aquinnah) argues that the BOEM
failed to take a “hard look” at the Cape Wind project’s impact on subsistence fishing.
Wampanoag Mem. at 28. The Tribe contends first that the effects of “constant vibrations” were
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not analyzed. Id. But this argument is directly contradicted by the final EIS. See CW65518-19;
CW65593. The Tribe next argues that the BOEM “provided no analytical support for” its
finding “that turbine-spacing would not significantly affect fishing activities or fish populations.”
Wampanoag Mem. at 29. But while the phrase to which the plaintiffs point does not cite to
studies about fish, see CW65593, there are discussions on the effects of the project on fish
elsewhere in the final EIS, see CW65518-19. And those discussions provide support for the
BOEM’s action, which discusses studies conducted with respect to operational offshore wind
farms in other parts of the world. Id. Finally, the Tribe faults the BOEM for categorizing its
comments concerning subsistence fishing as comments concerning commercial fishing.
Wampanoag Mem. at 31. The Tribe further argues that “conflating subsistence fishing with
commercial fishing implicates” several factors that the BOEM was required to consider under
the NEPA. Id. at 31-32. However, the final EIS does acknowledge the comments on subsistence
fishing separately from commercial fishing. See CW65593. While the conclusions about the
effects on the two types of fishing might be the same, the fact remains that both are considered in
the final EIS.
4. Whether the EIS Adequately Addressed Cumulative Effects on
Wildlife.
The plaintiffs next argue that the BOEM “improperly constrained the scope of its analysis
by limiting its consideration of cumulative effects to the immediate Project area.” Pls.’ Remain
Mem. at 79. “Cumulative impact is the impact on the environment which results from the
incremental impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency (Federal or non-Federal) or person undertakes such
other actions.” 40 C.F.R. § 1508.7. As the Supreme Court has stated, “identification of the
geographic area within which” cumulative environmental impacts “may occur[] is a task
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assigned to the special competence of the appropriate agencies.” Kleppe v. Sierra Club, 427 U.S.
390, 414 (1976). Indeed, “[e]ven if environmental interrelationships could be shown
conclusively to extend across” a wider geographic scope than that chosen by an agency,
“practical considerations of feasibility might well necessitate restricting the scope of
comprehensive statements.” Id.Aside from positing their own additional geographic areas for the BOEM’s consideration,
the plaintiffs have not presented the Court with a sufficient reason to invalidate the BOEM’s
choice. To be sure, in certain situations, a cumulative impact assessment should include inter-
regional effects in the manner described by the Circuit in Natural Resources Defense Council,
Inc. v. Hodel, 865 F.2d 288, 298-300 (D.C. Cir. 1988). However, in Hodel, the agency action
involved “simultaneous development” in adjacent marine environments. Id. at 297.
Accordingly, the Circuit agreed that the agency was required to address the inter-regional
cumulative impact of the simultaneous developments in the EIS, given that the marine species at
issue would “have to swim through each area, with no respite from the harmful effects of [the]
development.” Id. The Cape Wind project does not appear to implicate the same concerns, and
so the Court finds no reason to disturb the BOEM’s cumulative impact conclusions.
5. Whether the Construction and Operations Plan Constituted a new
Major Federal Action.
The plaintiffs contend that the BOEM should have conducted another NEPA review of
the Construction and Operations Plan for the Cape Wind project and issued another EIS. See
Pls.’ Remain Mem. at 81. Alternatively, they argue, the BOEM should have issued a
supplemental EIS. See id. at 84-87.
A “major Federal action” is defined to include “projects and programs entirely or partly
financed, assisted, . . . or approved by federal agencies.” 40 C.F.R. § 1508.18(a). Approval of a
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Construction and Operations Plan is undoubtedly federal action. See id. § 1508.18(b)(2)
(including the “[a]doption of formal plans, such as official documents . . . approved by federal
agencies which guide or prescribe alternative uses of Federal resources” among the definitions of
“[f]ederal actions”). As used in the NEPA regulations, the term “[m]ajor reinforces but does not
have a meaning independent of significantly.” Id. § 1508.18(b). And “[s]ignificantly as used in
NEPA requires considerations of both context and intensity.” Id. § 1508.27. This requires,
among others, consideration of “the affected region, the affected interests, and the locality”;
“[t]he degree to which the proposed action affects public health or safety”; “characteristics of the
geographic area such as proximity to historic or cultural resources”; and “[t]he degree to which
the possible effects on the human environment are highly uncertain or involve unique or
unknown risks.” Id. Here, these were the same factors considered at great length in the final
EIS. Indeed, “an agency need not supplement an EIS every time new information comes to light
after the EIS is finalized. To require otherwise would render agency decisionmaking intractable,
always updating information only to find the new information outdated by the time a decision is
made.” Marsh, 490 U.S. at 373 (footnotes omitted). Accordingly, the Court finds that the
approval of the Construction and Operations Plan did not constitute a new major federal action.
The plaintiffs’ references to BOEM regulations requiring NEPA review of such plans, Pls.’
Remain Mem. at 81, does not warrant a different conclusion because the regulations reference
only “an appropriate NEPA analysis,” 30 C.F.R. § 585.628(b). Such an analysis does not
necessarily entail a new EIS.
6. Whether Any New Information Required a Supplemental EIS.
Courts review an agency’s decision to issue a supplemental EIS under the arbitrary and
capricious standard. City of Olmstead Falls v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002). And
81
as the Circuit has explained, “a ‘supplemental EIS is only required where new information
provides a seriously different picture of the environmental landscape.’” Nat’l Comm. for the
New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (citation omitted); see also Marsh,
490 U.S. at 373 (“[A]n agency need not supplement an EIS every time new information comes to
light after the EIS is finalized.”). “‘Only those changes that cause effects which are significantly
different from those already studied require supplementary consideration.’” Davis, 202 F.3d at
369 (citation omitted). The decision whether a supplemental EIS is required is reviewed under
the arbitrary and capricious standard. Blue Ridge Envtl. Def. League v. Nuclear Regulatory
Comm’n, 716 F.3d 183, 195 (D.C. Cir. 2013).
The plaintiffs complain that a supplemental EIS is required because the Construction and
Operations Plan “includes a Safety Management System, Oil Spill Response Plan, Operations
and Maintenance Plan, and other details regarding the Project and its environmental
significance.” Pls.’ Remain Mem. at 84. This is incorrect for several reasons. First, these
concerns are not entirely new and were addressed in the final EIS. See, e.g., CW65381-86
(safety concerns and oil spills); CW66745-813 (draft oil spill response plan attached to final
EIS); CW65119-126 (operation and maintenance). Moreover, the fact that the Construction and
Operations Plan includes some new details or information on these subjects, or whether those or
other details otherwise relate to environmental concerns, is not the point. Rather, the
significance of the information is what drives the necessity for a supplemental EIS. And as this
Circuit recently reiterated, “[t]he determination as to whether information is either new or
significant ‘requires a high level of technical expertise’; thus” courts should generally defer to
the agency’s “informed discretion.” Blue Ridge Envtl. Def. League, 716 F.3d at 197 (quoting
Marsh, 490 U.S. at 377). The plaintiffs have not demonstrated how the BOEM’s analysis in its
82
2010 and 2011 Assessments was arbitrary or capricious. Instead, they list the new information
considered in each and label it significant. This is not enough.
The plaintiffs also argue that the recent aggregations of North Atlantic right whales
warranted a supplemental EIS. Pls.’ Remain Mem. at 85-87. However, as discussed above, the
NMFS completed a new biological impact statement in 2010, which addressed the recent
aggregation. The NMFS concluded, as it did in its 2008 biological opinion, that the Cape Wind
project was not likely to adversely affect the right whales. The BOEM subsequently included
this information in its 2011 Assessment. See CW119760-61; CW119780. Considering that the
NMFS’s conclusion did not change, the Court finds that it was not arbitrary or capricious for the
BOEM to decline to supplement its EIS as a result of the whale sightings.
The Wampanoag Tribe of Gay Head (Aquinnah) contends separately that the Keeper’s
determination that the Nantucket Sound is eligible for inclusion on the National Register was
another independent ground for the issuance of a supplemental EIS. See Wampanoag Mem. at
32-33. However, as discussed above, the BOEM took into account the Tribe’s comments that
the entirety of the Nantucket Sound was a traditional cultural property. Although the BOEM
disagreed and was ultimately incorrect about the Sound’s eligibility for inclusion on the National
Register, that does not mean that the BOEM did not take the comments seriously. See
CW111975-76 (considering “[t]he altered view of the eastern horizon” and the Wampanoag
Tribe of Gay Head’s “belie[f] that the [Cape Wind project] would destroy the archaeological
evidence of their history throughout the Sound, including Horseshoe Shoal”); see also
CW157192 (addressing visual impacts of the Cape wind project on, among other things, the
Wampanoag “ceremonies, spiritual and religious practices [that] are dependent upon maintaining
the ability to view the first light, the eastern horizon vista and viewshed”); CW157196-201
83
(discussing historical and cultural impacts, and acknowledging that “[t]he Wampanoag consider
the entirety of Nantucket Sound to be ancestral lands”). Thus, while the Keeper’s determination
was new information in a sense, it cannot be said that it was arbitrary and capricious for the
BOEM to decline to supplement its EIS in light of that information. Cf. Blue Ridge Envtl. Def.
League, 716 F.3d at 198 (finding that new information did not create need for additional NEPA
review where “the EIS addressed and dismissed precisely the risks that gave rise” to the concerns
raised by the new information).
Finally, the plaintiffs fault the BOEM for failing to analyze alternatives in its 2010 and
2011 Assessments. See Pls.’ Remain Mem. at 74, 88-89 (citing 40 C.F.R. § 1502.14). By its
terms, however, the regulation cited by the plaintiffs requires the consideration of alternatives
only when an agency issues an EIS. The plaintiffs also take issue with the level of public
comment sought on the 2010 and 2011 Assessments. See id. at 87-89 (citing 40 C.F.R. §
1501.4(e)). However, an “agency has significant discretion in determining when public
comment is required with respect to [environmental assessments].” Blue Ridge Envtl. Def.
League, 716 F.3d at 189 (citation omitted). Here, the BOEM did, in fact, invite public comment
on both environmental assessments. See, e.g., CW111956-57; CW119705. Moreover, the CEQ
regulations do not “impose a [finding of no significant impact] requirement” where “an agency
[is] deciding, on the basis of an [environmental assessment], whether to issue a supplemental
EIS. The regulations require [findings of no significant impact] only when the agency employs
an [environmental assessment] to decide whether to issue an initial EIS.” Del. Dep’t of Natural
Res. & Envtl. Control v. U.S. Army Corps of Eng’rs, 685 F.3d 259, 273 (3d Cir. 2012) (citing 40
C.F.R. § 1501.4(e)) (emphasis added); see also Natural Res. Def. Council v. Kempthorne, 525 F.
Supp. 2d 115, 121 (D.D.C. 2007) (“[The] plaintiffs[] contend that [the agency] should have
84
circulated the draft [environmental assessments] for public comment because [it] deferred
evaluating the site-specific environmental impacts of the project until proposals for development
of specific well sites were submitted. This argument is also to no avail because neither the
applicable regulations, nor relevant caselaw, require such notice and comment.”) (citations
omitted). In other words, where, as here, an agency “has prepared [an] [environmental
assessment] . . . . to determine whether [it] can make a [f]inding of [n]o [n]ew [s]iginficant
[i]mpact . . . or should prepare a [s]upplemental [EIS] . . . ,” see CW119745, the requirements of
40 C.F.R. § 1501.4(e) do not apply to require the agency to submit the environmental assessment
for public notice and comment, but rather require the agency to involve the public only “to the
extent practicable,” TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 861
(D.C. Cir. 2006) (citing and comparing 40 C.F.R. §§ 1501.1, 1501.3, 1501.4). 29 Here, the
BOEM undoubtedly involved the public in the review of both the 2010 and 2011 Assessments.
G. The Plaintiffs’ Remaining Claims
In its complaint, the Town of Barnstable advance in its first five claims for relief Shelf
Lands Act and NEPA violations that center on the federal defendants’ failure to take certain
action concerning aviation safety. See Barnstable Compl. ¶¶ 175-99. However, these aviation
related allegations are not addressed in the plaintiffs’ briefs. 30 To the extent that the plaintiffs
29
Even if 40 C.F.R. § 1501.4(e) does apply here, it is not clear that the BOEM violated that regulation. The 2010
Assessment was subject to notice and comment. See CW111956-57. And while the BOEM invited comments on
the 2011 Assessment only by posting the assessment on its website, see CW119705, NEPA regulations require only
public “review” of environmental assessments, not public “notice and comment.” 40 C.F.R. § 1501.4(e)(2). The
regulations elsewhere refer to “[r]equest[ing] comments from the public,” see, e.g., id. § 1503.1(a)(4), which
suggests that something less than the usual public notice and comment is not inappropriate for environmental
assessments subject to § 1501.4(e)(2).
30
The most that the plaintiffs do is refer to aviation safety once in the context of their NEPA claims, see Pls.’
Remain Mem. at 73-74, while simultaneously acknowledging that the Circuit recently remanded the safety issue to
the FAA in Town of Barnstable v. FAA, 659 F.3d 28, 36 (D.C. Cir. 2011), and indeed, the Circuit subsequently
found that the Federal Aviation Administration’s analysis was reasonable, Town of Barnstable v. FAA, 740 F.3d
681 (2014). In any event, even this passing reference to aviation safety was subsequently removed from the
(continued . . . )
85
fail to advance additional arguments concerning aviation safety, the Court deems these aspects of
the plaintiffs’ NEPA claims abandoned. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667,
678 (1st Cir. 1995) (“Even an issue raised in the complaint but ignored at summary judgment
may be deemed waived.”); Noble Energy, Inc. v. Salazar, 691 F. Supp. 2d 14, 23 n.6 (D.D.C.
2010) (same).
Similarly, the Alliance plaintiffs allege violations of the Clean Water Act and the Rivers
and Harbors Act. See Alliance Compl. ¶¶ 177-93. While both statues are mentioned in passing
in the plaintiffs’ legal memoranda, see Pls.’ Remain Mem. at 5, 8 n.6, 9; Pls.’ Remain Mem. at
36, the plaintiffs advance no arguments concerning these claims. Even if the Court construed the
plaintiffs’ passing references to the Clean Water Act and the River Harbors Act as legal
arguments, the plaintiffs fail entirely to support their arguments with citations to the
administrative record. While it is true that a party does not abandon a claim by not briefing it in
a partial motion to dismiss other claims, see Fund for Constitutional Gov’t v. Nat’l Archives &
Records Serv., 485 F. Supp. 1, 4 (D.D.C. 1978), aff’d, 656 F.2d 856 (D.C. Cir. 1981), the
plaintiffs did not make any arguments concerning either statute in their first partial motion for
summary judgment, and represented to the Court that their second partial motion for summary
judgment addressed “all remaining claims presented in their consolidated cases,” see Pls.’
Remain Mot. at 1. Accordingly, the Court deems the claims abandoned. See Grenier, 70 F.3d at
678 (“Even an issue raised in the complaint but ignored at summary judgment may be deemed
waived.”); Noble Energy, 691 F. Supp. 2d at 23 n.6 (same).
(. . . continued)
plaintiffs’ briefs through an errata. See Errata: Corrected Memorandum in Support of Motion for Summary
Judgment, ECF No. 286 at 2 (“Change air safety to other statutory obligations.” (emphasis in original)).
86
H. The Plaintiffs’ Rule 56(e) Motion for Additional Discovery or, in the Alternative, to
Strike
In light of the Court’s finding above, based on the existing administrative record, that the
BOEM complied with its Shelf Lands Act regulations for approving a departure, the plaintiffs’
motion to strike the federal defendants’ references to documents outside of the administrative
record is denied. The Court need not strike documents that were not before it in the first place
and moreover that were not considered.
The Court also denies the plaintiffs’ motion for additional discovery. Although the
plaintiffs may be correct that it was improper for the defendants to attempt to introduce the
document in question into the record, the federal defendants did not concede that the document
was or should have been a part of the administrative record. Rather, they referenced the
document under the auspices of providing the Court with “an internal memorandum that was
withheld from the administrative record as deliberative material” if the Court deemed the
documents in the administrative record insufficient. Fed. Defs.’ Remain Mem. at 55 n.26. The
Court previously issued an order indicating that such memoranda are not part of the
administrative record as a matter of law, and that the plaintiffs were not entitled to review them.
See May 16, 2013 Order, ECF No. 273, at 4-5 (citing Nat’l Ass’n of Chain Drug Stores v. HHS,
631 F. Supp. 2d 23, 27 (D.D.C. 2009); In re Subpoena Duces Tecum, 156 F.3d at 1279). Further, as
the Court stated, “[i]t is well established in this Circuit that the [APA] ‘limits judicial review to
the administrative record except where there has been a strong showing of bad faith or improper
behavior or when the record is so bare that it prevents effective judicial review.’” Id. at 6
(quoting Theodore Roosevelt Conservation P’ship v. Salazar (“Theodore Roosevelt Conservation
I”), 616 F.3d 497, 514 (D.C. Cir. 2010)). Here, there has been no showing or allegation of bad
faith, and the Court was able to rule on the plaintiffs’ claims based on the existing administrative
87
record and without considering the subject documents. Thus, additional discovery, whether in
the form of allowing the plaintiffs access to documents outside of the administrative record or
conducting depositions, Pls.’ 56(e) Mot. at 3-4, is unwarranted.
IV. CONCLUSION
For the foregoing reasons, the Court grants summary judgment to the plaintiffs on their
claims that the FWS violated the ESA by failing to make an independent determination about
whether the feathering operational adjustment was a reasonable and prudent measure, and the
Court will therefore remand this case to the FWS for it can make the required independent
determination on this point. The Court also grants summary judgment to the plaintiffs on their
claims that the NMFS violated the ESA by failing to issue an incidental take statement for the
take of North Atlantic right whales, and the Court will therefore remand that issue to the NMFS
for the issuance of an incidental take statement on this subject. Otherwise, the Court grants
summary judgment to the defendants on the plaintiffs’ remaining claims. Finally, the Court
denies the plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike. 31
SO ORDERED this 14th day of March, 2014.
REGGIE B. WALTON
United States District Judge
31
The Court will issue an order contemporaneously with this Memorandum Opinion.
88