Plaintiffs EDC’s and SBCK’s Opposition to DCOR’s Motion for Post-Judgment Relief
Case No. 2:16-cv-08418-PSG-FFMx
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Margaret Morgan Hall (Bar No. 293699)
Email: mhall@environmentaldefensecenter.org
Linda Krop (Bar No. 118773)
Email: lkrop@environmentaldefensecenter.org
ENVIRONMENTAL DEFENSE CENTER
906 Garden Street
Santa Barbara, California 93101
Telephone: (805) 963-1622
Facsimile: (805) 962-3152
Attorneys for Plaintiffs Environmental Defense Center
and Santa Barbara Channelkeeper
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
ENVIRONMENTAL DEFENSE
CENTER, et al.,
Plaintiffs,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT, et al.,
Defendants,
and
AMERICAN PETROLEUM
INSTITUTE, et al.,
Intervenor-Defendants.
Case No: 2:16-cv-08418-PSG-FFMx
PLAINTIFFS ENVIRONMENTAL
DEFENSE CENTER’S AND
SANTA BARBARA
CHANNELKEEPER’S
OPPOSITION TO DEFENDANT-
INTERVENOR DCOR, LLC’s
MOTION FOR PARTIAL
AMENDMENT OF JUDGMENT
OR PARTIAL RELIEF FROM
ORDER
Hearing Date: April 29, 2019
Hearing Time: 1:30pm
Courtroom: 6A
Hon. Philip S. Gutierrez
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Plaintiffs EDC’s and SBCK’s Opposition to DCOR’s Motion for Post-Judgment Relief
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TABLE OF CONTENTS
INTRODUCTION ........................................................................................................... 1
ARGUMENT ................................................................................................................... 3
I. There are No Grounds for the Court to Reconsider its Injunction ......................... 3
II. The Court Did Not Err with Respect to its Issuance of the Injunction .................. 6
III. Reconsideration of the Monsanto Factors Would Not Change the Outcome of
this Case ........................................................................................................................... 9
A. Plaintiffs Would Suffer Irreparable Harm Absent an Injunction that Halts
Approval of All WST Permits ................................................................... 10
B. Legal Remedies are Inadequate to Compensate for the Injury that
Plaintiffs will Suffer .................................................................................. 14
C. The Balance of Equities Tips Sharply in Favor of the Twenty-Five
Threatened and Endangered Species Affected by WSTs .......................... 14
D. Ensuring the Federal Government Complies with the Law Would Not be a
Disservice to the Public Interest ................................................................ 16
IV. The Injunction is Narrowly Tailored to Redress Plaintiffs’ Injuries .................... 18
CONCLUSION .............................................................................................................. 19
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TABLE OF AUTHORITIES
Cases
All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................. 10, 13, 17
Allstate Ins. Co. v. Herron, 634 F.3d 1101 (9th Cir. 2011) ............................................. 4
Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531 (1987) ....................... passim
Califano v. Yamasaki, 442 U.S. 682 (1979) .................................................................. 18
California v. Azar, 911 F.3d 558 (9th Cir. 2018). ................................................... 18–19
Campion v. Old Republic Home Prot. Co., No. 09-CV-748-JMA NLS, 2011 WL
1935967 (S.D. Cal. May 20, 2011) .............................................................................. 5
Crane-McNab v. Cty. of Merced, 773 F. Supp. 2d 861 (E.D. Cal. 2011) ....................... 5
Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006) ......................... 16
In re Oak Park Calabasas Condo. Ass’n, 302 B.R. 682 (Bankr. C.D. Cal. 2003) .......... 5
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) ............................. 3
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991) .................... 18
League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752
F.3d 755 (9th Cir. 2014) ............................................................................................. 11
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ...................... 6, 10, 16–17
N.D. ex rel. parents acting as guardians ad litem v. Hawaii Dep’t of Educ., 600 F.3d
1104 (9th Cir. 2010) ................................................................................................... 17
Nat. Res. Def. Council v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) .................................. 18
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) ........................ 9
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803 (9th Cir. 2018) .... 10
National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001).......... 16
Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) ............................... 15
Rubin ex rel. N.L.R.B. v. Vista Del Sol Health Servs., Inc., 80 F. Supp. 3d 1058 (C.D.
Cal. 2015) ............................................................................................................. 15–16
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Sampson v. Murray, 415 U.S. 61 (1974) ....................................................................... 15
Smith v. Clark Cty. Sch. Dist., 727 F.3d 950 (9th Cir. 2013) .......................................... 4
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) ............................................. passim
United States v. Alpine Land & Reservoir Co., 984 F.2d 1047 (9th Cir. 1993) .............. 5
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). ............................................... 7, 9
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ............................................. 1, 8
Statutes
16 U.S.C. § 1536 (a)(2) .................................................................................................... 8
16 U.S.C. § 1536 (b)(3)(A) ............................................................................................ 15
Rules
Fed. Rule Civ. Pro. 59(e) ................................................................................................. 3
Fed. Rule Civ. Pro. 60(b)(1)–(5) ...................................................................................... 5
Fed. Rule Civ. Pro. 60(b)(6) ............................................................................................ 5
Local Rule 7-18(c) ........................................................................................................... 4
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INTRODUCTION
This Court issued a final Judgment in this case on December 13, 2018, in
which it properly exercised its equitable discretion in fashioning relief to remedy
Federal Defendants’ violations of the Endangered Species Act (“ESA”) and
Coastal Zone Management Act (“CZMA”). Specifically, the Court ordered
Federal Defendants “to refrain from approving any plans or permits for the use of
well stimulation treatments on the Pacific Outer Continental Shelf unless and until
they (1) complete consultation with [Fish and Wildlife Service (‘FWS’)] under the
ESA, and (2) complete the CZMA process under 16 U.S.C. § 1456 (c)(1).”
Judgment, ECF No. 132 at 3; see also Order Granting in Part and Denying in Part
the Cross-Motions for Summary Judgment (“Order”), ECF No. 126. Intervenor-
Defendant DCOR, LLC (“DCOR”) now seeks a modification to the Court’s
Judgment under Federal Rule of Civil Procedure 59(e) or 60(b) to allow Federal
Defendants to approve two applications for permits to drill (“applications”) that
would authorize DCOR to conduct hydraulic fracturing on the Pacific Outer
Continental Shelf (“OCS”). DCOR Motion, ECF No. 133. The company claims
that the injunction will cause it “unrecoverable financial loss” by stripping two of
its wells of “any value or utility” and that this Court did not consider the equities
and balance of harms with respect to its operations. DCOR Motion at 1, 14.
However, DCOR fails to make a showing that warrants reconsideration of
the Court’s Judgment. First, this case does not satisfy the strict standards of Rule
59(e) or 60(b), either of which must be met before a court may reopen a final
judgment. Second, this Court acted well within its discretion to order relief that
ensures compliance with the law. Rather than compelled by Winter v. Natural Res.
Def. Council, 555 U.S. 7 (2008), where an injunction was inappropriate because of
the unique national security interests at issue, the relief in this case is controlled by
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Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978) (“TVA v. Hill”), in which an
injunction was necessary to protect listed species.
Third, even if the Court were to reconsider the factors for issuing an
injunction, nothing would change because the Judgment does not present DCOR
with irreparable harm. DCOR overstates the effect of the injunction, which is
temporary by nature and will expire once Federal Defendants comply with the law.
Moreover, its alleged harms are not the result of this Court’s order. Even without
the injunction in place, DCOR must—like every other operator—wait for the
required processes to conclude before it can proceed with what would otherwise be
an unlawful activity. In fact, Federal Defendants have already declined to approve
one of DCOR’s applications at this time. Letter to DCOR, AR 52269 (January 19,
2017) (determining that before Federal Defendants will “commence the review
process,” the Santa Clara Field Development and Production Plan must be
supplemented to include the proposed hydraulic fracturing activity). The other
application was not even submitted until after this Court issued the injunction,
rather it is dated January 10, 2019, the same day DCOR filed the present motion.
DCOR Motion at 5. If DCOR is able to conduct hydraulic fracturing before the
expert wildlife agency concludes consultation on the programmatic level that
would undermine the process and threaten to jeopardize the continued existence of
at least twenty-five listed species. See Plaintiffs’ Environmental Defense Center’s
(“EDC’s”) and Santa Barbara Channelkeeper’s (“SBCK’s”) Complaint, Case No.
2:16-cv-8418, ECF No. 1, ¶ 206 (identifying species threatened by the use of well
stimulation treatments (“WSTs”), including, blue, fin, and humpback whales, sea
otters, several bird, fish, and sea-turtle species, and black and white abalone).
Finally, the injunction is narrowly tailored to redress Plaintiffs’ injuries.
Therefore, a modification of this Court’s Judgment is unwarranted and
DCOR’s motion must be denied.
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ARGUMENT
DCOR’s circumstances do not present a situation that warrants this Court’s
modification to its Judgment. The Court’s Order was based on the record and
argument of the parties, not on “manifest errors of law or fact” or “mistake,
inadvertence, surprise, or excusable neglect.” See DCOR Motion 8–9 (citing
standards under Federal Rules of Civil Procedure 59(e) and 60 (b)). The injunction
will not cause “manifest injustice.” Id. Instead, it prohibits Federal Defendants
from approving permits until they comply with the law. The Court’s injunction is
well within its equitable discretion. Nonetheless, if the Court were to reconsider its
Judgment, the injunction factors still weigh sharply in favor of Plaintiffs, and the
relief is already narrowly tailored to address Plaintiffs’ irreparable harm.
I. There are No Grounds for the Court to Reconsider its Injunction.
DCOR cites the legal standards for altering or amending a judgment and
granting relief from judgement under Federal Rules of Civil Procedure 59(e) and
60(b) and Local Rule 7-18(c) but fails to demonstrate how the high bars
established by these rules are met. Instead, it claims that the Court did not consider
“the effect the Injunction would have on DCOR” and that facts in the record
support that DCOR’s harm is “substantial” and Plaintiffs’ harm “slight.” DCOR
Motion at 9. Although DCOR may disagree with the Court’s ruling, it fails to
establish grounds that warrant the Court’s use of the extraordinary remedy of
opening its final Judgment to craft an exemption for DCOR’s two applications.
DCOR’s requested relief is inappropriate under Rule 59(e). See Fed. Rule
Civ. Pro. 59(e). Amending or altering a final judgment pursuant to Rule 59(e) is
an “extraordinary remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229
F.3d 877, 890 (9th Cir. 2000) (internal citations omitted). Although courts enjoy
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discretion in ruling on Rule 59(e) motions, such motions generally may only be
granted on the following grounds: “(1) if such motion is necessary to correct
manifest errors of law or fact upon which the judgment rests; (2) if such motion is
necessary to present newly discovered or previously unavailable evidence; (3) if
such motion is necessary to prevent manifest injustice; or (4) if the amendment is
justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron,
634 F.3d 1101, 1111 (9th Cir. 2011). Further, the Central District Local Rules
provide that a motion for reconsideration “may be made only on the grounds of,”
inter alia, “a manifest showing of a failure to consider material facts presented to
the Court before such decision.” Local Civil Rule 7-18(c).
Here, DCOR appears to hang its hat on the theory that its Motion is
necessary to prevent “manifest injustice” or correct a “manifest error” committed
by this Court for failing to address its harms simply because the Court did not
articulate potential harms to DCOR as distinct from Federal Defendants. However,
as explained below, the Court properly considered the potential harm to Federal
Defendants and its same reasoning applies to DCOR: “The Federal Defendants
seem unlikely to suffer harm from an injunction since it appears that even without
an injunction they would await the completion of consultation before proceeding
with WST permitting.” Order at 34. Likewise, the injunction does not harm
DCOR because it must wait for the legally-required processes to conclude, whether
or not this Court’s Judgment is in effect. Therefore, the Court already considered
the harm that would result from not allowing the approval of permits and its
injunction does not result in any injustice to DCOR.
The Court also did not commit any manifest or “clear error”—which occurs
where a court is left with a “definite and firm conviction that a mistake has been
committed.” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)
(quoting United States v. U.S. Gypsum Co.,333 U.S. 364, 395 (1948)); see also
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Campion v. Old Republic Home Prot. Co., No. 09-CV-748-JMA NLS, 2011 WL
1935967, at *1 (S.D. Cal. May 20, 2011) (noting that to meet the “clear error”
standard, the decision must be “more than just maybe or probably wrong; it must
be dead wrong”); In re Oak Park Calabasas Condo. Ass’n, 302 B.R. 682, 683
(Bankr. C.D. Cal. 2003) (quoting Black’s Law Dictionary) (defining clear error as
“an error that is plain and indisputable, and that amounts to a complete disregard of
the controlling law or the credible evidence in the record”). Here, the Court did
not make a manifest error; it properly addressed the injunction factors and the
record supports the appropriateness of the Court’s Judgment.
DCOR also fails to demonstrate why it should be afforded special treatment
under the sparingly-used remedy of relief from judgment. Under Rule 60(b) there
are a specific set of circumstances under which it is proper for the court to relieve a
party from a judgment or order, which are as follows: “(1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the
judgment is void; (5) the judgment has been satisfied.” Fed. Rule Civ. Pro.
60(b)(1)–(5). If none of those applies, the rule has a catchall provision for “(6) any
other reason justifying relief from the judgment.” Fed. Rule Civ. Pro. 60(b)(6).
Relief from judgment under this rule is not appropriate based on “[m]ere
dissatisfaction with the court’s order, or belief that the court is wrong in its
decision.” Crane-McNab v. Cty. of Merced, 773 F. Supp. 2d 861, 874 (E.D. Cal.
2011) (citing Twentieth Century–Fox Film Corp. v. Dunnahoo, 637 F.2d 1338,
1341 (9th Cir. 1981)). Moreover, the catchall provision is to be used “sparingly as
an equitable remedy to prevent manifest injustice.” United States v. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993). Such relief is only
appropriate in “extraordinary circumstances” and ordinarily not granted unless the
“moving party is able to show both injury and that circumstances beyond its
control prevented timely action to protect its interests.” Id.
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Here, DCOR appears to assert that the Judgment involves “mistake” or,
instead, gives rise to “any other reason justifying relief.” See Motion at 1–2, 8–9.
However, the Court properly applied the injunction factors and thus has committed
no mistake. In addition, there is no other reason justifying relief because the
injunction does not injure DCOR, as explained below. Therefore, there are no
grounds in this case for the Court to modify its Judgment.
II. The Court Did Not Err with Respect to its Issuance of the Injunction.
DCOR mischaracterizes this case as one in which the Court improperly
presumed irreparable harm where the agency failed to follow procedures required
by law. DCOR Motion at 11.1 While courts are of course not “mechanically
obligated to grant an injunction for every violation of law,” they have the
discretion to fashion equitable relief and issue injunctions where appropriate. TVA
v. Hill, 437 U.S. at 193. Specifically, courts must assess the four injunction factors
addressed in Section III below. See Monsanto Co. v. Geertson Seed Farms, 561
U.S. 139, 157–58 (2010). Here, the injunction was not an automatic response to a
“mere failure to obtain a permit or prepare an analysis.” DCOR Motion at 10. The
Court applied the appropriate factors and acted well within its equitable discretion
to secure compliance with the ESA and CZMA, thereby preventing harm to
endangered and threatened species and their habitat.
The Court did not rely on any presumptions and instead properly addressed
the injunction factors. See Order at 32–35. After carefully considering the
potential harms of both issuing the injunction to ensure the status quo and denying
such relief, the Court concluded that “it is appropriate to issue an injunction to
1 DCOR also wrongly asserts that the Court based its injunction “simply on the
Federal Defendants’ failure to provide a consistency determination,” id. at 9,
although the Court made clear that it was also issuing an injunction specifically to
remedy Defendants’ ESA violation. See Order at 34.
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prevent the irreparable harm that Plaintiffs will suffer if the agencies issue WST
permits before ESA consultation with FWS has been completed.” Id. at 34. In
addition, the primary focus of the hearing on the motions for summary judgment
was relief. Plaintiffs stressed the need for an injunction to prevent the Federal
Defendants from issuing permits until they complied with the ESA. See ECF No.
124. DCOR had the opportunity to rebut Plaintiffs’ arguments. DCOR’s current
applications only reinforce the threat that these practices will occur, and thus the
need for the Court’s Judgment to prevent them until Federal Defendants comply
with the law.
None of DCOR’s arguments undermine the Court’s Order, which was well
within its equitable discretion. DCOR cites cases where, unlike here, the lower
courts either departed from their traditional equitable powers or gave inadequate
weight to competing harms. In Weinberger v. Romero-Barcelo, the Court held that
when Congress enacted the Clean Water Act, it did not strip district courts of their
equitable discretion and require them to immediately issue injunctions in light of
every violation, instead of balancing the equities. 456 U.S. 305, 315–20 (1982).
Instead, the Court concluded that the statute “permits the district court to order that
relief it considers necessary to secure prompt compliance with the Act” and that
such relief may include “immediate cessation” of the challenged action. Id. at 320.
In Amoco Prod. Co. v. Village of Gambell, AK, the Court held that district courts
should not presume irreparable harm where the statute at issue does not support
such presumption. 480 U.S. 531, 544–46 (1987). Here, the Court did not depart
from its traditional equitable powers in enjoining the violations in this case by
presuming harm or stating that it was required to issue an injunction. Instead, the
Court properly addressed the appropriateness and need for an injunction in this
case and all relevant factors in ordering relief to “secure prompt compliance” with
the ESA and CZMA. Weinberger, 456 U.S. at 320.
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In Winter, the Supreme Court was faced with whether it should uphold an
injunction prohibiting the Navy from conducting training exercises with active
sonar when those exercises ensured its ability to “neutralize the threat posed by
enemy submarines.” 555 U.S. at 26, 33. While the Court recognized the
“importance of plaintiffs’ ecological, scientific, and recreational interests” related
to the marine mammals that would be allegedly harmed, it concluded that the
balance of equities and public interest favored the Navy because the injunction
would “pose a serious threat to national security.” Id. at 33. Here, the Court
adequately considered the harms on both sides and balanced the equities. This
case does not present anywhere near the type of circumstances that faced the Court
in Winter—DCOR’s private interest in pursuing offshore fracking before the
legally-required processes conclude is a far cry from the Navy’s interest in
assuring national public safety. Therefore, none of the cases DCOR cites
undermine the Court’s injunction.
In fact, these cases are instructive on a point that DCOR overlooks: they
stress the importance of the underlying statute and substantive policy at issue. See,
e.g., Village of Gambell, 480 U.S. at 544 (noting that the lower court improperly
focused on “the statutory procedure rather than on the underlying substantive
policy the process was designed to effect”). Here, the ESA strongly counsels in
favor of injunctive relief, which is necessary to prevent harm to listed species, not
simply to ensure a process. See 16 U.S.C. § 1536 (a)(2); see also 16 U.S.C. §
1531(b) (establishing the ESA’s fundamental purposes as conservation of listed
species and the ecosystems on which they depend). Plaintiffs’ claims were brought
pursuant to Section 7(a)(2), which is the “heart of the ESA” and requires Federal
Defendants to ensure their actions do not jeopardize the very existence of listed
species. Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1019 (9th
Cir. 2012). This analysis is critical because if the wildlife agency makes a
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jeopardy determination at the end of the consultation process, the action cannot go
forward as is. Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 652
(2007).
Given the strong commands of Section 7, the Supreme Court has recognized
that with respect to the ESA, Congress did in fact “foreclose[ ] the usual discretion
possessed by a court of equity.” Weinberger, 456 U.S. at 313 (citing TVA v. Hill,
437 U.S. at 173); see also Cottonwood Environmental Law Center v. U.S. Forest
Service, 789 F.3d 1075,1090 (9th Cir 2015). (“[T]he ESA strips courts of at least
some of their equitable discretion in determining whether injunctive relief is
warranted.”). In TVA v. Hill, the Supreme Court required the district court to
enjoin a project in order to protect a listed species, concluding that Congress
“afford[ed] first priority to the declared national policy of saving endangered
species” and that courts do not have the discretion to balance interests competing
with protecting listed species. 437 U.S. at 185. The Court reached this conclusion
based on the purpose and language of the ESA, pointing to Section 7’s “flat ban”
on destruction of critical habitats and jeopardizing the continued existence of
species. Weinberger, 456 U.S. at 314 (citing TVA v. Hill, 437 U.S. at 173). Here,
the Court acted in line with its equitable discretion, which is cabined by its duty to
ensure compliance with the ESA, and there is no reason for the Court to reconsider
its application of the Monsanto factors.
III. Reconsideration of the Monsanto Factors Would Not Change the
Outcome of this Case.
DCOR argues that this Court should revisit its application of the Monsanto
factors specific to DCOR’s alleged harms and create an exemption to the Court’s
injunction to “accommodate” DCOR’s applications for offshore fracking. DCOR
Motion at 13. However, reconsideration of the injunction factors would not result
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in a different outcome because DCOR has not suffered any harm that is caused by
the Court’s injunction. In deciding whether to issue injunctive relief, courts
consider: (1) whether the plaintiff has suffered an irreparable injury; (2) whether
legal remedies are adequate to compensate for that injury; (3) whether the balance
of hardships between the parties warrants equitable relief; and (4) whether the
public interest would not be disserved by a permanent injunction. Monsanto, 561
U.S. at 157. These factors tip sharply in favor of protecting the twenty-five
threatened and endangered species threatened by offshore fracking in this case.
There is no reason to give DCOR special permission to skirt around the important
programmatic consultation process currently underway.
A. Plaintiffs Would Suffer Irreparable Harm Absent an Injunction
that Halts Approval of All WST Permits.
Although courts must not presume irreparable harm, the purposes of the
ESA in “conserving endangered and threatened species and the ecosystems that
support them” make establishing irreparable harm not an “onerous task.”
Cottonwood, 789 F.3d at 1091 (citing 16 U.S.C. § 1531). Courts have consistently
recognized irreparable harm stemming from plaintiffs’ concerns of harm to species
and the environment. See Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886
F.3d 803, 820–23 (9th Cir. 2018) (upholding an injunction where organizations’
irreparable harm was based on impacts to listed species that would occur absent the
injunction); All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
2011) (upholding finding of irreparable harm where plaintiff organization asserted
“that the Project will harm its members’ ability to ‘view, experience, and utilize’
the areas in their undisturbed state”). These harms are inherently irreparable. As
the Supreme Court has recognized, “[e]nvironmental injury, by its nature, can
seldom be adequately remedied by money damages and is often permanent or at
least of long duration, i.e., irreparable.” Village of Gambell, 480 U.S. at 545; see
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also League of Wilderness Defs./Blue Mountains Biodiversity Project v.
Connaughton, 752 F.3d 755, 764 (9th Cir. 2014) (concluding that harm caused by
logging of mature trees cannot be remedied easily, if at all, and thus is irreparable,
even where area had previously been logged).
This Court has already found that Plaintiffs will suffer irreparable harm
absent the injunction. Order at 34. The Court reasoned that Defendants’ ESA
violations cannot be cured after offshore fracking is allowed to occur, and that
even though Defendants appear to be voluntarily suspending permitting until the
ESA process is complete, they have made “no clear commitment to this effect.” Id.
at 34. Thus, the injunction is necessary in order to “prevent the irreparable harm
that Plaintiffs will suffer if the agencies issue WST permits before ESA
consultation with FWS has been completed.” Id. DCOR’s two proposed permits
are no exception and should not be afforded special treatment.
As the record in this case makes clear, Plaintiffs will suffer irreparable harm
if DCOR’s permits can proceed before Federal Defendants complete the legally-
required ESA and CZMA processes. First, Plaintiffs demonstrated irreparable
harm caused by the approval of these practices in their Motion for Summary
Judgment and corresponding declarations. Plaintiffs’ brief pointed to specific
examples throughout the administrative record, including in the Programmatic
Environmental Assessment (“PEA”), Finding of No Significant Impact (“FONSI”),
and Biological Assessments (“BAs”), identifying harm to twenty-five threatened
and endangered species. For example, Plaintiffs highlighted that well stimulation
treatments, generally, are expected to affect biological resources. Plaintiffs EDC’s
and SBCK’s Motion for Summary Judgment, ECF No. 96 (“Motion for Summary
Judgment”), 22 (citing AR 16571). Plaintiffs also highlighted specific harms with
respect to each category of affected species. Id. at 22–23. For example, Plaintiffs
identified the potential for marine and coastal fish to be “temporarily exposed to
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highly diluted concentrations of WST-related chemicals” in platform discharges.
Id. at 22 (citing AR 16481). Plaintiffs noted impacts to marine mammals including
those “associated with the discharge from platforms of WST-related fluids and
chemicals;” from “noise” and being “struck by PSVs;” from a surface spill of WST
chemicals; and from “disturbance in behavior and/or distribution of some
individuals.” Id. at 22–23 (citing AR 16481, 164582, 164583). Plaintiffs
highlighted that birds would be impacted by “noise or the presence of PSVs” and
the “accidental release of WST chemicals.” Id. at 23 (citing AR 16486–87).
Finally, Plaintiffs pointed to potential harm to sea turtles from the “accidental
release of WST fluids and crude oil,” resulting in “decreased health, reproductive
fitness, and longevity,” id. (citing AR 16488); from being “struck by PSVs” and
disturbed by noise associated with PSVs; and from being “expos[ed] [to WST
chemicals] through direct contact and through ingestion of contaminated food.” Id.
(citing AR 16487).
In addition, Plaintiffs demonstrated how these potential harms to endangered
and threatened species injure specific members of Plaintiffs’ organizations, and
supported those allegations with seven declarations detailing those injuries.
Motion for Summary Judgment at 8, fn. 2; ECF No. 96-1 through 96-7
(declarations). Plaintiffs’ brief highlighted examples of the recreational, aesthetic,
academic, and other interests that their members have in the Santa Barbara
Channel and how such interests would be irreparably harmed absent this Court’s
injunction. Motion for Summary Judgment at 8, fn. 2 (highlighting the following
examples of harm: “Horn Decl. (declaring, for example, she regularly swims in the
Channel and near platforms, and fears contact with WST chemicals will directly
impact her health); Coffey Decl. (stating that, as a naturalist, she worries WSTs
will harm or kill the wildlife that she loves to see in the Channel); Helms Decl.;
Cohen Decl.; Calambokidis Decl.; Bailey Decl.; Redmond Decl.”). These harms
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can no longer be remedied once permit applications are approved and are thus
irreparable. Order at 34 (“After permits have been issued, Defendants’ ESA
violation can no longer be cured.”); see also Village of Gambell, 480 U.S. at 545;
All. for the Wild Rockies, 632 F.3d at 1135.
DCOR states that Plaintiffs will not be harmed by a modification to the
Judgment because Federal Defendants “must still complete any consultation with
the [FWS], as specifically pertains to these two APMs, to the extent required under
the ESA.” DCOR Motion at 2. However, separating out these two permits into an
individual process despite the current programmatic consultation would contravene
the expert wildlife agency’s ongoing efforts and the ESA, and fail to capture the
collective impacts that WSTs have on listed species throughout the Pacific OCS
region. Thus, breaking from this programmatic consultation, even if Federal
Defendants conducted a separate consultation process on these permits, would
cause Plaintiffs irreparable harm. Alternatively, if DCOR is suggesting that it
could proceed with its permits before such individual consultation concludes, that
would likewise violate the ESA and cause irreparable harm to Plaintiffs, because
consultation must occur before its permits can be approved. Order at 33 (“Houston
and the ESA itself prohibit the Federal Defendants from approving WST permits
before consultation with FWS is complete”).
In addition, DCOR’s attempt to downplay Plaintiffs’ harms based on its claim
that offshore fracking has been occurring for “nearly 40 years with no documented
episode of harm,” DCOR Motion at 2, is to no avail. First, that statement conflicts
with the record in this case, which as explained above, is replete with examples of
the ways in which WSTs threaten to harm listed species. Second, the wildlife
agencies were not consulted with respect to such earlier fracking operations, so
there is no way of knowing what the effects have been. Moreover, offshore
fracking includes not only the specific application of WSTs, but also allows
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platforms to continue operating, and thus all impacts associated with offshore oil
and gas development should be properly within the scope of the ESA consultation.
There can be no question that offshore oil and gas development poses a
tremendous threat to listed species, for example, as seen in the 2015 rupture of the
Plains All American Pipeline. Motion for Summary Judgment at 22.
Accordingly, the Court correctly found that the injunction is necessary to
protect Plaintiffs from irreparable injury.
B. Legal Remedies are Inadequate to Compensate for the Injury that
Plaintiffs will Suffer.
As this Court correctly concluded, “[m]oney damages would be insufficient
to remedy the harm caused by the ESA violation.” Order at 34; see also id. at 40
(ruling with respect to the CZMA that “[m]oney damages are ill-suited for
remedying this type of violation”). Because the injury in this case concerns
adverse impacts to sensitive species and their habitat, there is no monetary award
that could negate that harm. Village of Gambell, 480 U.S. at 545 (“Environmental
injury, by its nature, can seldom be adequately remedied by money damages. . .”);
League of Wilderness Defenders, 752 F.3d at 764 (noting that planting of new
seedlings or paying of money damages could not normally remedy environmental
harm from proposed logging project).
C. The Balance of Equities Tips Sharply in Favor of the Twenty-Five
Threatened and Endangered Species Affected by WSTs.
As the Supreme Court has held, when it comes to balancing of the equities,
“Congress has spoken in the plainest of words, making it abundantly clear that the
balance has been struck in favor of affording endangered species the highest of
priorities.” TVA. v. Hill, 437 U.S. at 194; see also id. at 184 (“The plain intent of
Congress in enacting this statute was to halt and reverse the trend toward species
extinction, whatever the cost.”). Here, on one side of the scale is Plaintiffs’
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irreparable harm due to the potential impacts of WSTs on twenty-five threatened
and endangered species, identified above. The other side of the scale consists of a
temporary halt on permit approvals until the Federal Defendants comply with the
law, which is the case with or without the Court’s injunction. Thus, the balance of
equities in this case tips sharply in favor of Plaintiffs.
DCOR severely overstates its potential harms. It claims that its harms include
financial losses that render two of its wells without “any value or utility” and thus
calculates its losses over a five-year period. DCOR Motion at 14. DCOR further
exaggerates the effect of the Court’s ruling, leaping to a claim that not only will the
company not be able to produce from the two wells with pending applications, but
that it will forego future operations that are not even subject to any applications,
and then will potentially shut down the entire platform. Id. at 6. DCOR overlooks
that at the end of the ESA and CZMA processes, some type of WST activity may
be allowed. As DCOR acknowledges, the Judgment only prohibits Defendants
from approving WSTs until and unless they comply with the law. DCOR Motion
at 14. Moreover, the ESA and its implementing regulations set forth timing
parameters for the consultation process, which is not indefinite. See 50 C.F.R. §
402.14(e) (providing that consultation concludes within 90 days unless extended
pursuant to the process outlined in the regulations); 16 U.S.C. § 1536(b)(3)(A)
(requiring biological opinions to be delivered “promptly after” consultation is
concluded). Therefore, any harm from losing the value of these wells, especially
over a five-year period, is entirely speculative and only temporary, and thus does
not constitute irreparable harm. See Orantes-Hernandez v. Thornburgh, 919 F.2d
549, 557 (9th Cir. 1990) (internal citations omitted) (stating that for injunctive
relief “‘the injury or threat of injury must be both ‘real and immediate,’ not
‘conjectural’ or ‘hypothetical’”); Sampson v. Murray, 415 U.S. 61, 90–93
(1974) (ruling that “loss of income” did not constitute irreparable harm); Rubin ex
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rel. N.L.R.B. v. Vista Del Sol Health Servs., Inc., 80 F. Supp. 3d 1058, 1074 (C.D.
Cal. 2015) (“Economic damages are not traditionally considered irreparable. . .”).
In addition, Federal Defendants’ current inability to approve DCOR’s
permits is not even caused by the injunction in this case. As this Court noted, the
Federal Defendants appear to be waiting until completion of consultation before
approving permits, even without the injunction. Order at 34. That outcome is
required by the ESA itself, and in fact, Federal Defendants have already refused to
authorize one of DCOR’s permits. Letter to DCOR, AR 52269 (January 19, 2017).
There is no reason DCOR’s second permit, or any future permits, should be treated
differently. DCOR complains that “prior to the litigation” approval of permits took
“approximately three weeks”—however, it is no surprise that the permit process
went faster when done illegally. DCOR Motion at 5. Like all other operators,
DCOR must wait until Federal Defendants comply with the law before its
applications can go forward. DCOR’s inflated harms cannot reasonably be
attributed to this Court’s injunction. Therefore, the only irreparable harm at issue
is that which Plaintiffs will face if DCOR’s motion is granted, which outweighs
any harm to DCOR. See National Parks & Conservation Ass’n v. Babbitt, 241
F.3d 722, 738 (9th Cir. 2001), cert. denied 534 U.S. 1104 (2002) (ruling that “loss
of anticipated revenues” to another party “does not outweigh the potential
irreparable damage to the environment”); Earth Island Inst. v. U.S. Forest Serv.,
442 F.3d 1147, 1177 (9th Cir. 2006), cert. denied 549 U.S. 1278 (2007) (holding
that economic losses did not outweigh irreparable environmental harm from
proposed timber sales).
D. Ensuring the Federal Government Complies with the Law Would
Not be a Disservice to the Public Interest.
Under the final factor for injunctive relief, the Court must determine whether
the public interest “would not be disserved by a permanent injunction.” Monsanto,
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561 U.S. at 157. In the ESA context, the Supreme Court has already recognized
“that Congress established an unparalleled public interest in the ‘incalculable’
value of preserving endangered species.” Cottonwood, 789 F.3d at 1090 (citing
TVA v. Hill, 437 U.S. at 187–88). The Ninth Circuit has likewise acknowledged
the public interest in “preserving nature and avoiding irreparable environmental
injury” and in “careful consideration of environmental impacts before major
federal projects go forward.” All. for the Wild Rockies, 632 F.3d at 1138. Here, as
this Court has already ruled, the public interest “is served by an order ensuring the
government complies with the law” and nothing has changed to undermine that
ruling. Order at 34; see also N.D. ex rel. parents acting as guardians ad litem v.
Hawaii Dep’t of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010) (noting that “it is
obvious that compliance with the law is in the public interest”).
Moreover, the injunction provides a critical benefit to the public interest
because it helps carry out the important national policy of saving threatened and
endangered species, by ensuring compliance with Section 7, 16 U.S.C. Section
1536 (a)(2). See TVA v. Hill, 437 U.S. at 173; Karuk Tribe of California, 681 F.3d
at 1019. Allowing any permits to proceed until the CZMA and ESA processes
conclude would disserve the important public interest in preventing harm to listed
species. See All. for the Wild Rockies, 632 F.3d at 1138 (internal citations omitted)
(noting that suspending action until a legally-required process for assessing
environmental impacts concludes “comports with the public interest”). In addition,
allowing consultation specifically at the programmatic level to conclude before
any WST permits may issue is in the public interest because it will provide the
most accurate assessment of the collective impacts of WST use throughout the
Pacific OCS. There is no countervailing public interest in allowing offshore
fracking before Federal Defendants comply with the law. Even the statute
authorizing offshore oil development requires that oil exploration and production
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be “balanced with ‘protection of the human, marine, and coastal environments.’”
Nat. Res. Def. Council v. Hodel, 865 F.2d 288, 292 (D.C. Cir. 1988) (quoting 43
U.S.C. § 1802(1)–(2)). The injunction in this case appropriately accommodates for
any other public interest considerations because it temporarily halts production
only until the legally-required processes conclude.
IV. The Injunction is Narrowly Tailored to Redress Plaintiffs’ Injuries.
DCOR incorrectly asserts that the Court’s injunction is “overbroad.” DCOR
Motion at 13. However, this Court’s injunction is appropriate in scope because it
is “no more burdensome to the defendants than necessary to provide complete
relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991)
(“Injunctive relief…must be tailored to remedy the specific harm alleged”). Here,
relief to Plaintiffs means ensuring compliance with the ESA and CZMA. That,
alone, is exactly what the Court ordered. DCOR’s request would not “narrowly
tailor” the injunction; to the contrary, it would provide a flat-out exemption to this
Court’s important Order. If DCOR were allowed this exemption, its permits could
threaten to jeopardize listed species. Therefore, the Court’s injunction
appropriately protects the interests at stake in this case and places no unfair
burdens on DCOR. Id. at 974 (focusing on the “interest protected” in that case and
upholding an injunction where it placed defendant in position it would have been
in if it complied with the law).
The cases DCOR cites on this issue do not undermine the Court’s injunction.
In California v. Azar, the court determined that a nationwide injunction was
broader than necessary because the record only contained evidence of harm to
plaintiff states, and not other states; thus, the injunction had to be “narrowed to
redress only the injury shown as to the plaintiff states.” 911 F.3d 558, 584 (9th Cir.
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2018). Here, the injunction is already limited to the discrete injuries Plaintiffs
face: it prohibits the use of only the challenged WST practices, only in the Pacific
OCS region, and only until Federal Defendants comply with the ESA and CZMA
processes. Therefore, it cannot be said that the injunction does anything more than
address Plaintiffs’ specific injuries, and thus it is not overbroad.
CONCLUSION
DCOR drastically overstates the effect that this Court’s injunction will have
on its oil and gas production activities and seeks a special exemption from the
Judgment. However, like all other operators, DCOR must wait for the processes
required under the ESA and CZMA to conclude before proceeding with offshore
well stimulation. On the other hand, if DCOR is granted the exemption it seeks,
Plaintiffs will suffer irreparable harm. The injunction in this case is necessary to
maintain the status quo while the required agency processes conclude, and to
protect the twenty-five threatened and endangered species affected by WST
activities. Because DCOR has failed to meet the strict standards of Rules 59(e)
and 60(b), and because the Court properly considered the Monsanto factors when it
issued its injunction, DCOR’s Motion must be denied.
Respectfully submitted this 25th day of March, 2019
/s/ Margaret Morgan Hall
Margaret Morgan Hall (Bar No. 293699)
/s/ Linda Krop
Attorneys for Plaintiffs
ENVIRONMENTAL DEFENSE CENTER AND
SANTA BARBARA CHANELKEEPER
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CERTIFICATE OF SERVICE
I, Margaret Morgan Hall, hereby certify that on March 25, 2019, I
electronically filed PLAINTIFFS ENVIRONMENTAL DEFENSE CENTER’S
AND SANTA BARBARA CHANNELKEEPER’S OPPOSITION TO
DEFENDANT-INTERVENOR DCOR, LLC’s MOTION FOR PARTIAL
AMENDMENT OF JUDGMENT OR PARTIAL RELIEF FROM ORDER and
corresponding PROPOSED ORDER with the Clerk of the Court using the
CM/ECF system, which constitutes appropriate service pursuant to Local Rule 5-
3.2.
/s/ Margaret Morgan Hall
Margaret Morgan Hall
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