# SAVE LONG BEACH ISLAND v. UNITED STATES DEPARTMENT OF COMMERCE

> District Court, D. New Jersey · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10278442

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10278442

## How later opinions describe it (automated extraction)

- noting concrete harms include “tangible harms” such as “physical and or monetary harm to the plaintiff’ and “intangible harms” including “reputational harms, disclosure of private information, and intrusion upon seclusion”
- concluding that plaintiff alleged injury-in-fact where plaintiff was forced to close whale watching tour business due sonar tests by defendants
- describing the injury-in-fact inquiry as a “hard floor... that cannot be removed by statute’’

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SAVE LONG BEACH ISLAND and
ROBERT STERN, Ph.D.,
Plaintiffs, Civil Action No. 23-1886 (RK) (IBD)
v. OPINION
U.S, DEPARTMENT OF COMMERCE;
GINA RAIMONDO, in her official capacity
as Secretary of Commerce; NATIONAL
MARINE FISHERIES SERVICE; and
JANET COIT, in her official capacity as
Director, National Marine Fisheries Service,
Federal Defendants,
and
@RSTED NORTH AMERICA INC., and
ATLANTIC SHORES OFFSHORE WIND,
LLC,
Intervenor-Defendants.

KIRSCH, District Judge
This suit concerns a non-profit organization’s objection to several windfarms being
developed in the waters of the Atlantic Ocean off the coast of New York and New Jersey and its
allegations of potential harm to marine mammals the windfarms will cause. In 2022 and 2023,
Defendant National Marine Fisheries Service (“NMFS”) issued several Incidental Take
Authorizations (“ITAs”) pursuant to the Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et
seq., which allowed the windfarms’ developers to disrupt certain marine species as part of the
development projects without running afoul of the federal laws protecting those species.

Plaintiffs—Save Long Beach Island (“Save LBY’) and its president Robert Stern, Ph.D. (‘Stern’)
(together, “Plaintiffs”)—bring a challenge under the Marine Mammal Protection Act (““MMPA”),
the Administrative Procedures Act (“APA”), and the National Environmental Policy Act
(“NEPA”) to the decision by the United States Department of Commerce, the Secretary of
Commerce Gina Raimondo, the NMFS, and the NMFS’s Assistant Administrator Janet Coit
(together, “Federal Defendants”) to issue these ITAs. Two developers of the windfarms have
intervened in the suit: Orsted North America Inc. (“Orsted’’) and Atlantic Shores Offshore Wind,
LLC (“Atlantic Shores”) (together, “Intervenor-Defendants”).
Presently pending before the Court are seven (7) motions,’ including Federal Defendants’
Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (ECF No.
49); Orsted’s Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6), (ECF No. 43); and
Atlantic Shores’ Motion to Dismiss pursuant to same, (ECF No. 44). The Court has considered the
parties’ submissions and resolves the matter without oral argument pursuant to Federal Rule of
Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, Defendants’
Motions to Dismiss are GRANTED.’

Aside from the three (3) Motions to Dismiss, also pending before the Court are Plaintiffs’ Motion for a
Preliminary Injunction, (ECF No. 23), Orsted’s and Atlantic Shores’ Motions to Strike (ECF Nos. 57 and
59), and American Clean Power Association’s Motion for Leave to File an Amicus Curiae Brief,
(ECF No. 53).
* Because the Court grants Defendants’ Motions to Dismiss pursuant to Rule (12)(b)(1), it need not consider
Defendants’ alternate avenue of dismissal under Rule 12(b)(6).
3 Since the Court grants Defendants’ Motions to Dismiss, the Court denies Plaintiffs’ Motion for a
Preliminary Injunction, (ECF No. 23), as moot. The Court also denies Orsted’s and Atlantic Shores’
Motions to Strike (ECF Nos. 57 and 59), and American Clean Power Association’s Motion for Leave to
File an Amicus Curiae Brief, (ECF No. 53), as moot.

ry

I. BACKGROUND
A. PROCEDURAL HISTORY
On April 4, 2023, Plaintiffs filed suit against Federal Defendants. (See ECF No. 1.) On
April 21, 2023, Orsted moved to intervene, (ECF No. 9), and Atlantic Shores did same on May
12, 2023, (ECF No. 13). The Honorable J. Brendan Day granted the Intervenor-Defendants’
respective motions on May 19, 2023. (ECF Nos. 18, 19.) On June 11, 2023, Plaintiffs filed a
Motion for a Preliminary Injunction. (ECF No. 23.) After the Motion for a Preliminary Injunction
was filed, the matter was transferred to the Undersigned on July 21, 2023. (ECF No. 32.) Federal
Defendants opposed Plaintiffs’ preliminary injunction motion, (ECF No. 51), as did Orsted, (ECF
Nos. 45, 46), and Atlantic Shores, (ECF No. 47). Plaintiffs filed a reply brief in support of their
motion for a preliminary injunction. (ECF No. 55.)
On August 1, 2023, Federal Defendants filed a Motion to Dismiss Plaintiffs’ Complaint.
(“Fed. Def. Mov. Br.,” ECF No. 49.) Federal Defendants moved under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction, as they contended that Plaintiffs lack
standing to assert their claims. (/d. at 24-35.) Federal Defendants also argued that Plaintiffs’
challenges to expired ITAs are moot, and that any claims to pending ITAs are unripe. (Id. at 35—
42.) In addition, Federal Defendants claimed that Plaintiffs failed to exhaust their administrative
remedies, as they only raised their concerns in the public notice and comment period to three (3)
of the challenged ITAs. (/d. at 42-44.) Finally, Federal Defendants moved under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim under NEPA or the MMPA. (Id. 44-62.)
On the same day, August 1, 2023, Orsted, (ECF No. 43), and Atlantic Shores, (ECF No.
44), each filed their own Motions to Dismiss. Orsted filed a brief in support of its Motion, (“Orsted
Mov. Br.,” ECF No. 43-1), as did Atlantic Shores, (“Atlantic Shores Mov. Br.,” ECF No. 44-1).

These briefs largely mirror Federal Defendants’ motion, with the Intervenor-Defendants moving
to dismiss under both Rule 12(b)(1) and 12(b)(6). Plaintiffs filed a consolidated brief in opposition.
(“Pls. Opp’n,” ECF No. 54.) Federal Defendants filed a reply brief, (ECF No. 62), as did Orsted,
(ECF No. 56), and Atlantic Shores, (ECF No. 58). In addition, Orsted and Atlantic Shores each
filed a Motion to Strike the declarations Plaintiffs attached to their preliminary injunction papers.
(ECF Nos. 57, 59.) The Clean Power Association also moved to file an amicus curiae brief in
support of Defendants’ opposition to Plaintiffs’ preliminary injunction motion. (ECF No. 53.)
B. STATUTORY BACKGROUND
1. The Marine Mammal Protection Act
In 1972, Congress enacted the Marine Mammal Protection Act (““MMPA”), 16 U.S.C.
§§ 1361 et seg. The MMPA imposed a “moratorium on the taking and importation of marine
mammals.” 16 U.S.C. § 1371(a). To “take” under the MMPA means “to harass, hunt, capture, kill,
or attempt to harass, hunt, capture, or kill any marine mammal.” Jd. § 1362(13). The MMPA
divides marine mammal harassment into two categories: “Level A harassment” and “Level B
harassment.” Jd. § 1362(18). Level A harassment is “any act of pursuit, torment, or annoyance
which has the potential to injure a marine mammal or marine mammal stock in the wild.” Jd.
§ 1362(18)(A)(@). Level B harassment is less severe, being met by “any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine mammal stock in the
wild by causing disruption of behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering.” Jd. § 1362(18)(A)(ii).
The MMPA contains an exception on the moratorium for certain “incidental” takings of
marine mammals. Id. § 1371(a)(5). A party seeking to qualify for this exception must receive an

Incidental Take Authorization (“TTA”) from the NMFS under one of two provisions of the MMPA.
First,
upon request .. . [for] a specified activity . . . within a specified
geographical region, [NMFS] shall allow, during periods of not
more than five consecutive years each, the incidental, but not
intentional, taking by citizens while engaging in that activity within
that region of small numbers of marine mammals of a species...
[so long as] the total of such taking during each five-year . . . period
concerned will have a negligible impact on such species.
Td. § 1371(a)(5)(A)G). Second, the MMPA allows
[u]Jpon request ... [for] a specified activity ... within a specific
geographic region, [NMFS] shall authorize, for periods of not more
than 1 year... the incidental, but not intentional, taking by
harassment of small numbers of marine mammals of a species or
population stock ... while engaging in that activity within that
region if the Secretary finds that such harassment during each period
concerned ... will have a negligible impact on such species.
Id. § 1371 (ay(S5)(D)a).4
Prior to receiving an ITA, the applicant must provide a written request to NMFS with
information concerning the proposed taking. 50 C.F.R. § 216.104. The request must include
detailed information, reproduced in relevant part below, concerning the project and proposed
taking:
(1) A detailed description of the specific activity or class of activities
that can be expected to result in incidental taking of marine
mammals;
(2) The date(s) and duration of such activity and the specific
geographical region where it will occur;
(3) The species and numbers of marine mammals likely to be found
within the activity area;

* The five-year ITAs are Incidental Take Regulations, § 1371(a)(5)(A)(), and the one-year ITAs are known
as Incidental Harassment Regulations, § 1371(a)(5)(D)(). The parties refer to them both as ITAs, and the
distinction between the two provisions is not relevant for the purposes of this Opinion. The Court will
therefore also refer to both as ITAs.

Qo

(4) A description of the status, distribution, and seasonal distribution
(when applicable) of the affected species or stocks of marine
mammals likely to be affected by such activities;
(5) The type of incidental taking authorization that is being
requested (i.e., takes by harassment only; takes by harassment,
injury and/or death) and the method of incidental taking;
(6) By age, sex, and reproductive condition (if possible), the number
of marine mammals (by species) that may be taken by each type of
taking identified in paragraph (a)(5) of this section, and the number
of times such takings by each type of taking are likely to occur;
(7) The anticipated impact of the activity upon the species or stock
of marine mammal;
(8) The anticipated impact of the activity on the availability of the
species or stocks of marine mammals for subsistence uses;
(9) The anticipated impact of the activity upon the habitat of the
marine mammal populations, and the likelihood of restoration of the
affected habitat;
(10) The anticipated impact of the loss or modification of the habitat
on the marine mammal populations involved;
(11) The availability and feasibility (economic and technological) of
equipment, methods, and manner of conducting such activity or
other means of effecting the least practicable adverse impact upon
the affected species or stocks, their habitat, and on their availability
for subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance; ...
(13) The suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of
the species, the level of taking or impacts on populations of marine
mammals that are expected to be present while conducting activities
and suggested means of minimizing burdens by coordinating such
reporting requirements with other schemes already applicable to
persons conducting such activity. Monitoring plans should include
a description of the survey techniques that would be used to
determine the movement and activity of marine mammals near the
activity site(s) including migration and other habitat uses, such as
feeding. Guidelines for developing a site-specific monitoring plan
may be obtained by writing to the Director, Office of Protected
Resources; and
(14) Suggested means of learning of, encouraging, and coordinating
research opportunities, plans, and activities relating to reducing such
incidental taking and evaluating its effects.

□□

50 C.E.R. § 216.104(a). Following the receipt of this information, NMFS publishes either a
proposed ITA or a notice of the applicant’s request for an ITA to begin a 30 (thirty) day public
notice and comment period. Id. § 216.104(b). NMFS “evaluate[s] each request to determine...
whether the taking by specified activity within the specified geographic region will have a
negligible impact on the species.” Id. § 216.104(c). If NMFS finds that the activity will have a
negligible impact on the species, NMFS publishes these findings, along with a draft authorization
form (described below), for public notice and comment. Id. NMFS may also “find[] that...
mitigating measures” may be taken that would allow the activity to occur with only a negligible
impact on the species, “when it would not otherwise satisfy [the negligible impact] requirement.”
Id. If NMFS determines that an activity will have a greater than a negligible impact, NMFS
publishes this finding along with its reasoning for denying the applicant’s request. Id. § 216.104(d).
Once the request is approved, NMFS sets forth “specific regulations” outlining the
“[plermissible methods of taking,” the “[mJeans of effecting the least practicable adverse impact
on the species and its habitat,” and “‘[rJequirements for monitoring and reporting” of the activity
and its impact on the species. 50 C-F.R. § 216.105.
Once NMFS signs off on a project, it must issue a “Letter of Authorization” (“LOA”) to
the applicant that sets out the conduct and activities approved by the ITA. 50 C.F R. § 216.106.
The LOAs “specify the period of validity and any additional terms and conditions for the specific
request,” and are published within thirty (30) days of issuance. Id. NMFS may withdraw an LOA
following the notice and comment period if it determines that the applicant has failed to comply
with the regulations, or the takings have a greater than negligible impact on the animal species at
issue. Id. If a party requests a modification to the activity requested in an LOA, NMFS may publish
the proposed LOA for public notice and comment. 50 C.F.R. § 217.47. A party may request an

extension without the public notice and comment component if the activity and the “anticipated
impacts” are identical to those in the previously issued LOA, and NMFS concludes the required
monitoring and reporting measures were implemented by the applicant. /d.°
2. National Environmental Policy Act
In 1970, Congress passed the National Environmental Policy Act (“NEPA”) to “establish[]
a ‘national policy [to] encourage productive and enjoyable harmony between man and his
environment, and... to reduce or eliminate environmental damage and to promote ‘the
understanding of the ecological systems and natural resources important to’ the United States.”
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C. § 4321). NEPA
requires federal agencies to adhere to certain “procedural requirements to ensure that the
government gives ‘appropriate consideration’ to environmental impacts before undertaking major
actions.” Gulf Restoration Network v. Haaland, 47 F.4th 795, 798 (D.C. Cir. 2022) (quoting 42
§ 4332(2)(B)(C)). One way NEPA effectuates this goal is by requiring agencies to prepare
an Environmental Impact Statement (“EIS”) that contains “a detailed statement” on, inter alia,
“the environmental impact of the proposed action”; “any adverse environmental effects which
cannot be avoided”; and “alternatives to the proposed action.” 42 U.S.C. § 4332(C).
3. The Outer Continental Shelf Lands Act
Pursuant to the Outer Continental Shelf Lands Act (“OSCLA”), 43 U.S.C. § 1337, the
Bureau of Ocean Energy Management (“BOEM”) may issue “leases, easements, and rights-of-
way for activities that produce or support the production, transportation, or transmission of
energy,” including “renewable energy.” 30 C.F.R. § 585.100. The Secretary of the Interior

> The ITAs at issue in this case, such as one issued to Atlantic Shores, note, however, that “one-time, one-
year” renewals may be issued “[o]n a case-by-case basis”; however, these renewals are subject to a fifteen
(15) day notice and comment period so long as the renewal request is for “identical, or nearly identical,
activities.” (See e.g., ECF No. 49-2 at *14.)

°

delegated to BOEM, an agency within the Department of the Interior (“Interior’’), “the authority
to manage the development of energy on the Outer Continental Shelf (OCS).” Ud.) As the D.C.
Circuit has explained:
The OCSLA establishes a four-stage process for development. First, □
Interior evaluates national energy needs to formulate a five-year
plan of proposed lease sales. Next, Interior sells the leases to the
highest responsible qualified bidders. . . . [A]t the third and fourth
stages, .. . Interior reviews lessees’ plans for exploration and then
for development and production. During this process, Interior must
prepare environmental impact statements (EJSs) as necessary.
Gulf Restoration, 47 F.4th at 798 (cleaned up).
C. FACTUAL BACKGROUND
Plaintiff Save LBI is a New Jersey 501(c)(3) non-profit organization “created to guard
human and natural resources.” “Compl,” ECF No. 1 { 13.) The non-profit organization’s goals
include, inter alia, protecting the “marine mammals,” including the North Atlantic Right Whale
(“Right Whale”) that “inhabit, use, or migrate off the New Jersey and New York coasts” and
conserving the “aesthetic elements” of the beaches of the coasts of New Jersey and New York.
Ud.) Plaintiff Stern, Save LBI’s current President, was previously employed in the Office of
Environmental Compliance in the Department of Energy. (/d. J 14.)
The gravamen of Plaintiffs’ Complaint concerns numerous ITAs issued pursuant to
planned wind energy projects (the “Projects”) that BOEM approved for development off the shores
of New Jersey and New York. (/d. { 28.) The Complaint does not directly challenge BOEM’s
decision pursuant to the OSCLA, but rather challenges Federal Defendants’ decisions to issue
ITAs to various companies involved in developing the Projects.®

° As noted above, there are four Federal Defendants who Plaintiffs contend were involved in promulgating
the challenged ITAs. Two are entities: the Department of Commerce and NMFS, an agency housed within
the Department of Commerce’s National Oceanic and Atmospheric Administration. (Id. J 15.) Janet Coit
is the director of NMFS, and Gina Raimondo is the Secretary of the Department of Commerce. (Id.)

ny

Plaintiffs in total challenge eleven (11) issued ITAs. The “specified activity” permitted by
one of the challenged ITAs, issued to South Fork Wind, LLC and effective November 15, 2022
through November 14, 2023, involves actual construction of a wind project. (id. 29.) The
remaining ten ITAs, covering year-long periods in 2022 and 2023, were all issued for “marine site
characterization surveys.” (/d. 30-39.) The Intervenor Defendants were two of the recipients of
ITAs and involved in the development of the offshore wind energy projects. (See id. 28-39.)
Plaintiffs also allege there are five pending applications for ITAs, which Federal Defendants had
not yet decided at the time Plaintiffs filed suit. /d. | 40.)
Each ITA corresponds to a unique request for a proposed taking, and thus, each ITA differs.
See 50 C.F.R. § 216.104. The ITA issued to Atlantic Shores specified that only Level B harassment
could occur, and it set out the specific number of takes to which Atlantic Shores was authorized.
(See ECF No. 49-2 at *16.)’ For example, Atlantic Shores was allowed twenty-four (24) Level B
Harassment Takes of Right Whales, but only two (2) Level B Harassment Takes of Sei Whales.
The ITA also specified the “minimum separation distance” in which Atlantic Shores’ vessels
were to remain from each animal, and “shutdown zones” where no “acoustic source” could emit
if the vessels were too close to the animals. (/d. at *3, 7, 18) The ITA listed the relevant monitoring
requirements, including mandating constant three-hundred-and-sixty (360) degree surveillance by
a trained “lead protected species observers.” (/d. at *8) The ITA also set forth various reporting
requirements, including that Atlantic Shores “submit a draft comprehensive report on all activities

7 Plaintiffs’ Complaint is based on challenges to the ITAs issued by Federal Defendants. Although Plaintiffs
did not append the challenged ITAs to their Complaint, Federal Defendants attached the ITAs as exhibits
to their Motion to Dismiss. The Court may consider certain exhibits submitted by Defendants in their
respective Motion to Dismiss. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993) (a court may also review “exhibits attached to the complaint and matters of public
record,” as well as “undisputedly authentic document]s] that a defendant attaches as an exhibit to a motion
to dismiss if the plaintiff’s claims are based on the document”),

Nn

and monitoring results within 90 days of the completion of the survey or expiration of the THA.”
(d. at *9-10.) Another challenged ITA, issued to Orsted, contained different taking allowances,
permitting Level B Harassment of seventeen (17) Right Whales, and three (3) Sei Whales.
(See ECF No. 49-5 at *16.)
Plaintiffs’ Complaint alleges three counts: violation of the MMPA (Count One); violation
of the Administrative Procedures Act (“APA”) (Count Two); and violation of NEPA (Count IID).®
With respect to Count One, Plaintiffs contend that Federal Defendants’ decision to issue the ITAs
was arbitrary and capricious in violation of the MMPA and APA because the ITAs had more than
a “negligible” impact on “small numbers of marine mammals.” (Compl. {J 10, 125-28.)
Plaintiffs Complaint asserts numerous contentions regarding the science underlying
Federal Defendants’ actions. Plaintiffs allege that the challenged ITAs “underestimate the potential
for Level A harassment takes from the noise exposure and cumulative noise exposure” to which
the marine animals will be subject based on the marine site characterization surveys. (id. { 5.)
Plaintiffs contend “that the anthropogenic acoustic source utilized in the wind turbine
characterization surveys can result in takings.” Ud. ¢ 43.) By issuing the series of ITAs, Plaintiffs
allege that Federal Defendants subject the majority of the populations of Right Whales and
Humpback Whales to takings through “elevated noise exposure.” (/d. § 47.) In addition, the
Complaint asserts that an increase in marine mammal deaths has occurred during the period of late

8 As neither statute contains a private right of action, Plaintiffs bring their claims under the MMPA and
NEPA pursuant to the APA. (See Compl. #10, 160.) The Intervenor Defendants contend that Plaintiffs
MMPA claim should be dismissed because the statute does not contain a private right of action. (See
Atlantic Shores Mov. Br. at 3; Orsted Mov. Br. at 2.) While there is merit to this argument, judicial review
under the MMPA and NEPA may be sought pursuant to the APA. See City of Sausalito v. O'Neill, 386 F.3d
1186, 1205-06 (9th Cir. 2004) (collecting cases for the proposition that even though neither the MMPA
nor NEPA contain private rights of action, judicial review of agency action under these statutes is permitted
pursuant to the APA). The Court agrees with Plaintiffs that they made clear that the basis for their suit under
the MMPA was through the APA, (See Compl. 10; Pls. Opp’n at 38.)

41

2022 through 2023, which Plaintiffs contend was caused by the “numerous ITAs issued in 2022.”
(Id. Jf 48-68.)
Plaintiffs contend that the number of takings authorized by the challenged ITAs cause
greater harm to marine mammals than NFMS believes. Plaintiffs argue that the ITAs allow for
considerably greater noise than NFMS approximates, as, for example, “noise levels over 140
decibels [can extend outward] up to 34 miles away from the vessels,” and the ITAs allow for up
to 120 and 160 decibels of noise. (Id. {§ 73-75.) Plaintiffs also reference studies which “found that
Humpback whales try to avoid the noise down to a level of 140 decibels.” Ud. | 84.) The noise
allowed by the ITAs, allege Plaintiffs, “[dJisturb[s] the whale’s behavior” and may cause whales
to change swimming patterns, increasing the risk that they will collide with vessels.
(Id. Jf 87-88.) The noise may also separate mothers from calves, as well as cause “stress and
distress reactions,” such as increased “heart rate [and] blood pressure.” (Ud. Ff 89-93.) Moreover,
Plaintiffs argue that the noise may cause whale strandings, otherwise known as beaching.
(Id. Jf 104-14.) Plaintiffs contend that Defendants ignored numerous scientific studies outlining
the harm from sonar noises, which are created during the marine site surveys and development of
the wind farms, to whales and other marine mammals. (/d. § 145.) In addition, Plaintiffs claim that
Defendants issued IPAs to non-United States citizens, further flouting the prescriptions of the law.
(Id. 150.)
In Count Two, Plaintiffs allege that Federal Defendants acted “arbitrarily, capriciously, and
without substantial evidence,” in violation of the APA, by issuing the ITAs based upon “incorrect
noise loss factors” and a faulty assumption that “no Level A harassment takes would occur.”
(Id. 151-54.) Finally, in Count Three, Plaintiffs contend that Federal Defendants violated NEPA
by failing to submit a cumulative EIS ascertaining the potential harm of all issued ITAs.

(Id. 155-60.) Plaintiffs seek the Court to issue an order “reversing and setting aside” the ITAs;
enjoining Federal Defendants from issuing any pending and prospective ITAs; directing NMFS to
create “an Advisory Board of acoustic and marine mammal specialists”; directing NMFS to
prepare a cumulative EIS; and awarding Plaintiffs fees. (/d., Prayer for Relief.)
IL. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a
complaint based on lack of subject matter jurisdiction. In deciding a Rule 12(b)(1) motion to
dismiss, a court must first determine whether the party presents a facial or factual attack to the
jurisdiction, because that distinction determines how the pleading is reviewed. See Mortensen vy.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “A facial attack concerns an
alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiff's
claims to comport factually with the jurisdictional prerequisites.” Young v. United States, 152 F.
Supp. 3d 337, 345 (D.N.J. 2015). In reviewing a facial attack, “the court must only consider the
allegations of the complaint and documents referenced therein . . . in the light most favorable to
the plaintiff.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). On this posture,
a court presumes that it lacks subject matter jurisdiction, and “the burden of establishing the
contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994) (citations omitted). By contrast, in reviewing a factual attack, the court
may weigh and consider evidence outside of the pleadings. Const. Party of Pennsylvania vy.
Aichele, 757 F.3d 347, 358 (3d Cir. 2014). Facial attacks typically occur prior to the defendant
answering the complaint and the parties engaging in discovery. See Askew v. Trustees of Gen.
Assembly of Church of the Lord Jesus Christ of the Apostolic Faith Inc., 684 F.3d 413, 417 (3d
Cir, 2012) (“As the defendants had not answered and the parties had not engaged in discovery, the

first motion to dismiss was facial.”). As Defendants contest whether the facts as pled in the
Complaint establish standing, the Court construes Defendants’ challenge as a facial challenge. See
Aichele, 757 F.3d at 358 (holding that a facial attack “contests the sufficiency of the pleading”’)
(quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). The Court applies
the same analysis “when considering a facial attack under Rule 12(b)(1) or a motion to dismiss for
failure to state a claim under Rule 12(b)(6).” Petruska v. Gannon Univ., 462 F.3d 294, 299 n.1 (3d
Cir. 2006).
Il. DISCUSSION
All Defendants move to dismiss Plaintiffs’ Complaint for a lack of standing. As this is the
threshold issue in this case, the Court will consider Plaintiffs’ standing, and thus, the Court’s
subject matter jurisdiction over Plaintiffs’ claims.
A. STANDING
“Standing is a question of subject matter jurisdiction.” Petroleos Mexicanos Refinancion
v. M/T KING, A (Ex—Tbilisi), 377 F.3d 329, 224 (3d Cir. 2004). Federal courts are courts of limited,
not general jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986). A
district court must have subject matter jurisdiction through “power authorized by Constitution and
statute.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). “Article IL [of
the United States Constitution] confines the federal judicial power to the resolution of “Cases” and
“Controversies.” TransUnion LLC vy. Ramirez, 141 S. Ct. 2190, 2203 (2021). “Absent Article I
standing, a federal court does not have subject matter jurisdiction to address a plaintiff's claims.”
Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006). A district court must
presume that it lacks jurisdiction over a matter unless jurisdiction is shown to be proper. Kokkonen,
511 US. at 377.

To establish Article I] standing, “the plaintiff must have a ‘personal stake’ in the
case....” TransUnion, 141 S. Ct. at 2203 (quoting Raines v. Byrd, 521 U.S. 811, 820 (1997)).
The “‘irreducible constitutional minimum’ of standing” requires three elements be demonstrated
by the plaintiff at the pleading stage. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). A plaintiff must demonstrate that they:
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision.” Jd. As the Supreme Court
has explained, “when... a plaintiff's asserted injury arises from the government’s allegedly
unlawful regulation (or lack of regulation) of someone else, much more is needed” and “standing
is not precluded, it is ordinarily ‘substantially more difficult’ to establish.” Lujan, 504 U.S. at 562
(emphasis in original) (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).
Defendants contend that both Stern and Save LBI fail to demonstrate standing. Federal
Defendants first argue that Stern fails to demonstrate any harm personal to himself. (See Fed. Def.
Mov. Br. at 25—28.) They also contend that Save LBI lacks organizational standing because the
Complaint fails to show that its members have standing on their own or that Save LBI seeks to
advance the purposes of its organization’s mission. (fd. at 29-32.) The Intervenor-Defendants also
claim that Plaintiffs lack injury-in-fact, as well as that Plaintiffs fail to demonstrate traceability
and redressability, as Plaintiffs fail to show that the ITAs have caused injury to the marine mammal
populations they seek to protect and that Plaintiffs’ requested relief would address their harm. (See
Atlantic Shores Mov. Br. at 10-17; Orsted Mov. Br. at 9-14.)
An injury in fact, the first element of standing, is “an invasion of a legally protected interest
that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.”
Reilly v. Ceridian Corp., 664 F.3d 38, 41 (Gd Cir. 2011) (quoting Danvers Motor Co. v. Ford

Motor Co., 432 F.3d 286, 290-91 (3d Cir. 2005)). A concrete injury is one that is “real, or distinct
and palpable, as opposed to merely abstract.” Finkelman y. Nat’l Football League, 810 F.3d 187,
193 (3d Cir. 2016); see TransUnion, 141 S. Ct. at 2204 (noting concrete harms include “tangible
harms” such as “physical and or monetary harm to the plaintiff’ and “intangible harms” including
“reputational harms, disclosure of private information, and intrusion upon seclusion”), An injury
is particularized when it “affect[s] the plaintiff in a personal and individual way.” In re Am. Med.
Collection Agency, Inc. Customer Data Sec. Breach Litig., No. 19-MD-2904, 2021 WL 5937742,
at *6 (D.N.J. Dec. 16, 2021) (quoting Lujan, 504 U.S. at 561 n.1); see also In re Horizon
Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 640 n.22 (3d Cir. 2017) (noting that the
“particularization requirement” of standing requires more than a plaintiff pleading “generalized
grievances”). Second, “[a]llegations of possible future injury are not sufficient to satisfy Article
Ill.” Reilly, 664 F.3d at 42 (citations and quotation marks omitted); see id. (noting that a “plaintiff
lacks standing if his ‘injury’ stems from an indefinite risk of future harms inflicted by unknown
third parties”). “Article ILL standing requires a concrete injury even in the context of a statutory
violation.” Spokeo, 578 U.S. at 330. As such, a plaintiff cannot satisfy the injury in fact requirement
by “alleg[ing] a bare procedural violation, divorced from any concrete harm.” /d.; see In re Horizon
Healthcare, 846 F.3d at 638.7
In Lujan, environmental organizations “dedicated to wildlife conservation and other
environmental causes” brought suit against the Department of the Interior seeking an injunction
that would require the Secretary of the Interior to promulgate a new rule that would impose
obligations of the Endangered Species Act in foreign nations. 504 U.S. at 558-59. The Supreme

° Plaintiffs contend that they suffered a procedural injury and are subject to a less stringent standard to
establish standing. (P]. Opp’n at 15.) However, even if a plaintiff asserts a procedural right, they must still
demonstrate injury-in-fact. See Summers v. Earth Island Inst., 555 U.S. 488, 496-97 (2009) (describing the
injury-in-fact inquiry as a “hard floor... that cannot be removed by statute’’).

ts

Court was tasked with deciding whether these environmental plaintiffs had standing to challenge
the government’s action. /d. at 561. The Supreme Court explained that “the desire to use or observe
an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for
purposes of standing.” Jd. at 562-63. However, The Court continued, to demonstrate an injury in
fact, a plaintiff must demonstrate “more than a cognizable interest”; rather, the plaintiff must show
“not only that listed species were in fact being threatened .. . but also that one or more of
[plaintiffs’] members would thereby be directly affected apart from their special interest in the
subject.” Jd. at 563 (citations and quotation marks omitted). To establish an “imminent” injury, a
plaintiff must show more than “an intent to return to the places they had visited before,” as “‘some
day’ intentions ... do not support a finding of the ‘actual or imminent injury’” required under the
law. Id. at 564 (citations omitted); Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (‘This
vague desire to return is insufficient to satisfy the requirement of imminent injury.”). Moreover,
the plaintiff must establish “use the area affected by the challenged activity.” Lujan, 504 U.S.
at 566.
Plaintiffs allege that Stern “believes it to be his responsibility to guard the national
resources of Long Beach Island and the waters adjacent to it, including the land animals, plants,
and marine life.” (Compl. J 14.) Stern “is concerned with all aspects of the wind turbine
development process” which includes the “the harmful preparatory activities” that might
“threaten[] the unique marine life . . . [of] the place Dr. Stern has chosen to call home.” (/d.)
Moreover, both Plaintiffs contend that they “have legally protected interests in preserving marine
mammals in the waters off of New Jersey/New York, marine mammals which have been
increasingly dying as a primary result of [Federal] Defendant[s’] actions.” Ud. § 10.) Save LBI
was “created to guard human and natural resources” including the marine mammals off the coast

17

of New Jersey and New York, “the aesthetic elements of Long Beach Island and the New York
Bight,” and the “economic interests” associated with the shores. (Id. J 13.) The Complaint alleges
that the organization has “a legally protected interest in preserving the marine mammals.”
Ud. JF 13.)
However, Plaintiffs’ allegations with respect to their interest in marine mammals fail to
demonstrate an imminent and concrete injury. See Reilly, 664 F.3d at 41. Applying Lujan, the
Court finds a dearth of allegations in the Complaint that demonstrate a direct injury to Plaintiffs
apart from their alleged “special interest” in marine mammals. Lujan, 504 U.S. at 563. Plaintiffs
believe that they are to “guard the national resources of Long Beach Island and the waters adjacent
to it” and are “concerned” with activities of the wind projects that may “threaten[] the unique
marine life” in the waters of New York and New Jersey. (Compl. { 13.) While Plaintiffs have a
noble interest in believing it their duty and responsibility to protect these mammals, they have not
demonstrated a legally-protected one. Plaintiffs fail to allege harm to themselves resulting from
any harm to marine mammals. Therefore, Plaintiffs’ concerns do not demonstrate that they are
harmed in “a personal and individual way.” Jd. at 560. Without allegations alleging concrete injury,
finding standing based on Plaintiffs’ worry about the harm that may befall marine mammals would
“transform[] [the Court] into no more than a vehicle for the vindication of the value interests of
concerned bystanders.” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d
149, 156 (4th Cir. 2000) (citations and quotation marks omitted); see Summers, 555 U.S. at 494
(“generalized harm to the forest or the environment will not alone support standing”).
Plaintiffs fail to demonstrate a “‘threatened concrete interest of [their] own.” Friends of
the Earth, 204 P.3d at 159 (quoting Lujan, 504 U.S. at 573 n.8). Environmental plaintiffs, like the
ones in the case at bar, must show how their interests “in a particular place, animal, or plant species

12

... [are] impaired by a defendant’s conduct.” Ocean Advocs. v. U.S. Army Corps. of Engineers,
402 F.3d 846, 860 (9th Cir. 2005) (determining plaintiffs alleged injury-in-fact where they
contended oil spills caused by defendants affected their ability to “study the ecological area,
observe wildlife” and use the waters “for recreation”); Friends of the Earth, 204 F.3d at 156
(finding injury-in-fact where plaintiff and his family alleged harm from their inability to fish or
swim in lake because of defendant’s pollution); Sierra Club, Lone Star Chapter v. Cedar Point Oil
Co. Inc., 73 F.3d 546, 556 (Sth Cir. 1996) (plaintiffs’ affidavits that explained their recreational
use of the water and harm to these activities by defendant’s pollution established injury-in-fact).
Stern fails to allege any use of the waters in which the ITAs had or will occur or even in the Atlantic
Ocean in general, apart from living on Long Beach Island, thus failing to demonstrate a concrete
injury. Lujan, 504 U.S. at 563-64; cf Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 182 (2000) (finding that “plaintiffs adequately allege[d] injury in fact when
they aver that they use the affected area and are persons “for whom the aesthetic and recreational
values of the area will be lessened’ by the challenged activity” (quoting Sierra Club v. Morton,
405 U.S. 727, 735 (1972)).
The Complaint describes Stern’s research on marine mammal fatalities and his concern
about the harm sonar may have on the whales. (Compl. { 14.) Moreover, vast portions of the
Complaint discuss scientific studies describing sonar and its effects on whales. (See e.g., id. Tf
101, 104.) These allegations of harm amount only to a “mere academic or philosophical interest”
in marine mammals, falling short of establishing injury-in-fact. Friends of the Earth, 204 F.3d at
159. Nor do Plaintiffs allege a financial injury from Defendants’ conduct. Plaintiffs contend that
Save LBI was created to “guard the human and natural resources” off the coasts of New Jersey
and New York, including the “economic interests strongly tied to the maintenance of the

environmental features.” (Compl. ff 13-14.) However, Plaintiffs’ Complaint is devoid of any
allegations of economic harm aside from this conclusory reference. Plaintiffs do not contend that
Stern or their other members have been forced to close down their businesses or the value of their
properties has decreased due to potential harm to marine mammals. See Friends of the Earth, 204
F.3d at 156 (4th Cir. 2000) (determining that plaintiff had pled injury-in-fact where plaintiff
claimed nearby pollution decreased the value of his property); Kanoa Inc. v. Clinton, 1 F. Supp.
2d 1088, 1092 (D. Haw. 1998) (concluding that plaintiff alleged injury-in-fact where plaintiff was
forced to close whale watching tour business due sonar tests by defendants).
In opposing Federal Defendants’ and Intervenor Defendants’ Motions seeking dismissal
for lack of standing, Plaintiffs offer additional allegations in their brief to support their standing.
is ‘axiomatic that the complaint may not be amended by the briefs in opposition to a motion
to dismiss.’” Olson v. Ako, 724 F. App’x 160, 166 (3d Cir. 2018) (quoting Commonwealth of Pa.
ex rel. Zimmerman y. PepsiCo, Inc., 836 F.2d 173, 181 Gd Cir. 1988)). As the Third Circuit has
explained, “it is one thing to set forth theories in a brief; it is quite another to make proper
allegations in a complaint.” Hughes v. United Parcel Serv., Inc., 639 PF. App’x 99, 104 (3d Cir.
2016) (quoting PepsiCo, Inc., 836 F.2d at 181 (affirming district court’s decision to not consider
allegations not pled in the complaint)).
In the case at bar, Plaintiffs allege new facts in response to Defendants’ Motions to Dismiss
the Complaint. In their opposition brief, Plaintiffs attach a declaration from Stern, in which, for
the first time, Stern states that he has “personally observed whales off the NJ shore here, and up
close in Nova Scotia in Zodiac craft on at least fifteen excursions there... . I have an excursion
planned in the NJ/N[Y] area ... leaving from Belmar, NJ, and plan to return to Nova Scotia for
additional excursions this fall and in the future.” (ECF No. 54-1 3.) Plaintiffs’ attempt to amend

their Complaint to allege injury-in-fact in their opposition brief runs afoul of Federal Rule of Civil
Procedure 15, and, under clear Third Circuit instruction, such new facts are inappropriately
considered at this juncture. See Frederico v. Home Depot, 507 F.3d 188, 201-22 (3d Cir. 2007)
(‘we do not consider after-the-fact allegations”); Lawshe v. Squeri, No. 03-3506, 2010 WL
276232, at *7 (D.N.J. Jan. 19, 2010) (noting that “[t]he proper procedure is for a plaintiff to amend
his pleadings pursuant to Rule 15 of the Federal Rules of Civil Procedure”); AccuCredit Assocs.,
LLC y. Diversified Glob. Sys., LLC, No. 18-16537, 2019 WL 11276332, at *2 (D.N.J. Sept. 30,
2019) (explaining that in “a facial attack to subject matter jurisdiction, ... ‘the court must only
consider the allegations of the complaint and documents referenced therein and attached thereto,
and affidavits and briefs do not fall in this category’” (quoting Lincoln Ben. Life Co. v. AEI Life,
LLC, 800 F.3d 99, 105 (3d Cir. 2015)); Berrol ex rel. Est. of Berrol vy. AIG, No. 07-1565, 2007
WL 3349763, at *4 (D.N.J. Nov. 7, 2007) (declining to “consider facts alleged in Plaintiff's
opposition brief’ on a facial jurisdictional challenge).
Save LBI’s standing arguments fail for an additional reason that it cannot demonstrate
associational standing. “[A]n association has standing to bring suit on behalf of its members when:
(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks
to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual members in the lawsuit.” N.J. Coal. of Auto.
Retailers, Inc. v. Mazda Motor of Am., Inc., 957 F.3d 390, 392 (3d Cir. 2020) (quoting Hunt v.
Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977)); see also Franco v. Conn. Gen.
Life Ins. Co., 647 F. App’x 76, 82 (3d Cir. 2016). As discussed above, the Complaint fails to show
that Stern, the only member of Save LBI referenced in the Complaint, has suffered an injury-in-
fact. Moreover, the Complaint lacks any additional discussion of other members of the

n4

organization. As such, Plaintiffs fails to satisfy the first prong of the test, and Save LBI does not
have standing on behalf of its members.
Therefore, the Court finds that Plaintiffs fail to allege injury-in-fact and need not consider
whether Plaintiffs have alleged facts establishing the remaining two prongs of Article III standing.
See Toll Bros. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009) (‘“[T]the injury-in-fact
element [of standing] is often determinative.”); Katz v. Six Flags Great Adventure, LLC, No. 18-
116, 2018 WL 3831337, at *8 (D.N.J. Aug. 13, 2018) (ending standing inquiry after finding that
the plaintiff failed to allege injury-in-fact); Okten v. ARS Nat’! Servs., Inc., No. 22-443, 2023 WL
3249828, at *4 (D.N.J. May 4, 2023) (same).!°
B. RIPENESS AND MOOTNESS
Defendants also contend that Plaintiffs’ claims against several ITAs that have not yet been
issued are unripe and that the claims against the expired ITAs are moot. (See Fed. Defs. Mov. Br.
at 36-42; Orsted Mov. Br. at 17-21; Atlantic Shores Mov. Br. at 17-22.)
The doctrine of ripeness “serves to ‘determine whether a party has brought an action
prematurely and counsels abstention until such time as a dispute is sufficiently concrete to satisfy
the constitutional and prudential requirements of the doctrine.’” Khodara Env’t, Inc. v. Blakey,
376 F.3d 187, 196 □□□ Cir. 2004) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir.
2003)). A court lacks subject matter jurisdiction over a dispute that is not ripe. See Thompson v.
Borough of Munhall, No. 01-4120, 2002 WL 1840802, at *1 (3d Cir. Aug.13, 2002) (“There must
be a true and ripe case or controversy for a federal court to have jurisdiction over an action.”);

‘© Because the court finds that Plaintiffs do not satisfy constitutional standing, the court need not address
the additional standing inquiry under the APA whether Plaintiffs fall within the “zone of interests to be
protected or regulated by the statute.” Match-E—Be~Nash—She—Wish Band of Pottawatomi Indians v.
Patchak, 567 U.S. 209, 132 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.
150, 153 (1970)).

Yn

Philadelphia Fed’n of Tchrs., Am. Fed’n of Tchrs. vy. Ridge, 150 F.3d 319, 323 Gd Cir. 1998)
(“One aspect of justiciability is ripeness.”).
Federal Defendants argue that Plaintiffs’ challenges to the pending ITAs are not ripe, and
thus, the Court should dismiss these claims. (Fed. Defs. Mov. Br. at 36-38.) They argue that
because the ITAs are still pending, there has not been “final action” and thus legal or practical
effects on any party.” (/d. at 38.) The Intervenor Defendants echo this argument. (See Atlantic
Shores Mov. Br. at 17~—20; Orstead Mov. Br. at 17-19.) Besides the cursory references to the
pending ITAs and an argument that these ITAs are “statements of intention that will invariably
become reality,” (Pls. Opp’n at 34), Plaintiffs do not independently address whether their claims
are ripe. See Dreibelbis v. Scholton, 274 F. App’x 183, 185 (Gd Cir. 2008) (affirming district
court’s grant of a motion to dismiss on grounds raised in defendants’ motion but not addressed in
plaintiff’ s opposition despite “ample opportunity” to contest it (citing Confer v. Custom Eng’g Co.,
952 F.2d 41, 44 (3d Cir. 1991) and Laborers’ Intern. Union of N. Am., AFL-CIO vy, Foster Wheeler
Energy, 26 F.3d 375, 398 (3d Cir. 1994))); Woodell v. Coach, No. 22-2222, 2022 WL 17486262,
at *3 (D.N.J. Dec. 7, 2022) (“As Woodell does not address these arguments in his opposition brief,
any arguments in opposition are deemed waived.” (citing Leisure Pass N. Am., LLC vy. Leisure
Pass Grp., Ltd., No. 12-3375, 2013 WL 4517841, at *4 (D.N.J. Aug. 26, 2013))); see also
DeShields v. Int’! Resort Props. ILtd., 463 F. App’x 117, 120 (3d Cir. 2012) (noting that “judges
are not like pigs, hunting for truffles buried in briefs” (quoting United States v. Starnes, 583 F.3d
196, 216 (3d Cir, 2009)). As such, Plaintiffs have waived contesting that these ITAs are unripe,
and thus, the Court dismisses the challenges to the pending ITAS as same.
Even had Plaintiff not waived opposition to Defendants’ ripeness argument, the Court
would nonetheless find that challenges to pending ITAs are unripe. The ripeness inquiry looks to

“whether the parties are in a sufficiently adversarial posture to be able to present their positions
vigorously, whether the facts of the case are sufficiently developed to provide the court with
enough information on which to decide the matter conclusively, and whether a party is genuinely
aggrieved so as to avoid expenditure of judicial resources on matters which have caused harm to
no one.” Khodara, 376 F.3d at 196 (cleaned up). Courts evaluating ripeness consider “(1) the
fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court
consideration.” Al Ummah Cmty. Ctr. v. Teaneck, No. 20-14181, 2022 WL 16948812, at *4 (D.N.J.
Noy. 15, 2022) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
When asked to review an administrative action, “courts are instructed to consider whether
review is being sought of final agency action.” Wedgewood Vill. Pharmacy, LLC v. U.S. Food &
Drug Admin., No. 22-2649, 2022 WL 1591787, at *4 (D.N.J. May 19, 2022) (quotation marks
omitted). A final agency action “must mark the consummation of the agency’s decisionmaking
process, must not be of a merely tentative or interlocutory nature, and must be one by which rights
or obligations have been determined, or from which legal consequences will flow.” T Mobile Ne.
LLC y. City of Wilmington, 913 F.3d 311, 318-19 (3d Cir. 2019) (quoting Riverkeeper Network v.
Sec’y of Pa. Dep’t of Envtl. Prot., 870 F.3d 171, 178 (3d Cir. 2017),
Here, the pending ITAs are not final agency actions. As described above, prior to approving
an ITA, NMFS allows for a public notice and comment prior to finalizing the LOA and final rule.
50 C.F.R. § 216.104. Only after this public comment period does NMFS fully examine the request
and decide whether to approve it. Jd. Moreover, NMFS must then promulgate “specific
regulations” for each ITA. 50 C.F.R. § 216.105. The regulations “set forth . . . [p]ermissible mthods
of taking” and other requirements, including monitoring and reporting. Jd. While the ITAs are still
pending and before the regulations have been issued, NMFS may still withdraw or otherwise

modify the ITA. The pending ITA does not allow the requestor to take any action until the rule is
finalized. Thus, any challenge to pending ITAs are unripe. See Health Sci. Funding LLC v. FDA
& Stephen Ostroff, No. 15-5635, 2016 WL 3078748, at *5 (D.N.J. May 31, 2016) (holding claim
unripe where no final agency action); Ass’n of Cmty. Orgs. for Reform Now (ACORN) v. Se.
Pennsylvania Transp. Auth. (SEPTA), 462 F. Supp. 879, 885 (E.D. Pa. 1978), aff'd sub nom., 605
F.2d 1194 (3d Cir. 1979) (“The matter is not ripe for adjudication since there has not been final
agency action.”).
Plaintiffs point the Court to a discussion of the pending ITAs in a letter attached to their
Complaint. (ECF No. 1-2 at *9), Yet, as this exhibit shows, the five (5) pending ITAs contam no
date of issue or effective dates, illustrating the still hypothetical and tentative, as opposed to final,
nature of the agency action. T Mobile Ne., 913 F.3d at 318-19. Prior to finalizing the taking, NMFS
must issue regulations and a letter of authorization “specify[ing] the period of validity and any
additional terms and conditions appropriate for the specific request.” 50 C.F.R. § 216.106. The
lack of finality is evidenced by the incomplete nature of the pending ITAs. Any action by the Court
to enjoin or set aside these pending ITAs would fail to respect the ongoing decisionmaking process
of the agency and would amount to counseling the agency how to make its decisions. See Doris
Behr 2012 Irrevocable Tr. v. Johnson & Johnson, No. 19-8828, 2022 WL 798334, at *5 (D.N.J.
Mar. 15, 2022), aff’d, No. 22-1657, 2023 WL 3316329 (3d Cir. May 9, 2023) (“[JJudgments ‘that
would be based upon a hypothetical set of facts stray towards the realm of advisory opinions and
thus favor a finding of unripeness.’” (quoting AXTS Ins. Co. v. PNC Fin. Servs. Grp., Inc., 135 F.
Supp. 3d 321, 327 (W.D. Pa. 2015))).
Defendants further contend that Plaintiffs’ challenges to the expired ITAs are moot. The
mootness doctrine “requires that ‘an actual controversy must be extant at all stages of review, not

merely at the time the complaint is filed.’” 8 Erie St. JC LLC y. City of Jersey City, No. 19-9351,
2020 WL 2611540, at *2 (D.N.J. May 21, 2020) (quoting Brown v. Phila. Hous. Auth., 350 F.3d
338, 343 Gd Ci. 2003)). Cases are moot when “developments occur during the course of
adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court
from being able to grant the requested relief.” Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir.
2017) (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996));
Providence Pediatric Med. Daycare, Inc. v. Alaigh, No. 10-2799, 2016 WL 901078, at *4 (D.N.J.
Mar. 9, 2016), aff'd sub nom., 672 F. App’x 172 Gd Cir. 2016) (“Even if a plaintiff has standing
at the time suit is instituted, the case may be dismissed if it becomes moot.”). Once a claim has
become moot, a court lacks jurisdiction to hear it. 8 Erie St., 2020 WL 2611540, at *2.
In the case at bar, with respect to the expired ITAs, Plaintiffs seek the Court to declare that
Federal Defendants’ issuance of these ITAs was “arbitrary, capricious, and contrary to law.” (See
Compl., Prayer for Relief.) However, the expired ITAs are no longer in effect. (See id. [J 28-39.)
According to Plaintiffs’ Complaint, the then active ITAs referenced therein were as follows: (1)
South Fork Wind, LLC to construct the South Fork Offshore Wind Project effective November
15, 2022 through November 14, 2023; (2) Atlantic Shores for marine site characterization surveys
effective April 20, 2022 through April 19, 2023; (3) Ocean Wind, LLC for marine site
characterization surveys effective May 10, 2022 through May 9, 2023; (4) Orsted Wind Power
North America, LLC for marine site characterization surveys effective May 10, 2022 through May
9, 2023; (5) Ocean Wind II, LLC for marine site characterization surveys effective May 10, 2022
through May 9, 2023; (6) NextEra Energy Transmission Mid-Atlantic Holdings, LLC for marine
site characterization surveys effective July 1, 2022 through June 30, 2023; (7) Park City Wind,
LLC for marine characterization surveys effective September 1, 2022 through August 31, 2023;

(8) Atlantic Shores for marine site characterization surveys effective August 10, 2022 through
August 9, 2023; (9) Attentive Energy, LLC for marine site characterization surveys effective
September 15, 2022 through September 14, 2023; (10) Vineyard Northeast, LLC for marine site
characterization surveys effective July 27, 2022 through July 26, 2023; (11) Orsted for marine site
characterization surveys effective October 6, 2022 through October 5, 2023. (Id.) Clearly,
according to Plaintiffs’ own Complaint, all ITAs have expired and, thus, are no longer active.
Plaintiff has not submitted an amended pleading with any information concerning renewals of the
above ITAs or information concerning other active ITAs. Plaintiffs’ proposed relief would have
the Court enter a judgment that would have no meaningful effect, as the ITAs no longer apply to
the Defendants. The proposed relief would amount to an “advisory opinion on abstract
propositions of law,” which the Court is not empowered to do. See ConocoPhillips Alaska, Inc. v.
Nat’! Marine Fisheries, No. 06-0198, 2007 WL 9718215, at *2 (D. Alaska Apr. 17, 2007) (quoting
Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002)).
Another district court faced a similar scenario to the one at issue in the case at bar. In
ConocoPhillips, the plaintiff sought declaratory relief from the court, asking the court to hold that
NMEFS had violated the MMPA and APA by issuing one-year taking authorizations that were
arbitrary and capricious. ConocoPhillips, 2007 WL 9718215, at *2. The defendant argued that the
plaintiff's claim was moot, and the court agreed. Id. The court explained that “when the 2006
[taking authorization] expired, [the plaintiff's] claim for injunctive relief expired with it,” as “2006
is gone and past” and “[o]ne cannot presume that the conditions that existed then exist now or will
exist in the future.” Jd. The court examined whether, if it found for the plaintiff on the merits, it
would be able to afford relief, and concluded that the case was moot because “no effective relief
for the alleged violation can be given.” Jd.

Notwithstanding the expiration of the relevant ITAs, Plaintiffs contend that their claims
regarding these ITAs fall within the “capable of repetition, yet evading review” exception to the
mootness doctrine. (Pls. Opp’n at 28.) This is a “narrow exception” to the mootness doctrine “that
‘applies only in exceptional situations.’” Hamilton, 862 F.3d at 335 (quoting Spencer v. Kemna,
523 US. 1, 17 (1998)). Plaintiffs bear the burden to demonstrate that this exception applies. Cnty.
of Butler vy. Governor of Pennsylvania, 8 F.4th 226, 231 (3d Cir. 2021). This exception applies
where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation
or expiration, and (2) there is a reasonable expectation that the same complaining party will be
subject to the same action again.” Hamilton, 862 F.3d at 335 (quoting Spencer, 523 U.S. at 17).
The Court rejects this exception based on failure of the second prong. To meet the
exception, a plaintiff must show “more than a theoretical possibility of the action occurring against
the complaining party again; it must be a reasonable expectation or a demonstrated probability.”
Cnty. of Butler, 8 F.4th at 231. “The ‘same action’ generally refers to ‘particular agency policies,
regulations, guidelines, or recurrent identical agency actions.’” Theodore Roosevelt Conservation
P’ship v. Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011) (quoting Pub. Utilities Comm’n v. FERC, 236
F.3d 708, 715 (D.C. Cir. 2001)); Am. Littoral Soc. v. U.S. E.P.A. Region, 199 F. Supp. 2d 217, 249
(D.N.J. 2002) (finding claim did not satisfy mootness exception where it was “contingent on a host
of occurrences” (quoting Blanciak, 77 F.3d at 699-700); Lone Rock Timber Co. v. U.S. Dep’t of
Interior, 842 F. Supp. 433, 439 (D. Or. 1994) (finding exception did not apply where “plaintiffs’
entitlement to relief and the precise nature of that relief may vary depending upon the particular
circumstances of the case” which included each “particular” scientific opinion issued by the federal
agency).

In the case at bar, Plaintiffs complain of expired ITAs that governed a specific activity for
a particular period of time and place—‘“specific condition[s] necessarily predicated on the unique
features of this particular” ITA. New Jersey Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d
25, 33 (3d Cir. 1985) (emphasis in original). As discussed above, for each ITA, the requesting
party must submit a host of information for the “specific activity,” including the “date,” “duration,”
and “specific geographical region.” See 50 C.F.R. § 216.104. In support of their argument,
Plaintiffs cite to a since-vacated decision finding the exception applied where the plaintiffs
“criticism .. . [was] directed at the agencies broader approach.” (See Pl. Opp’n at 30-31 (citing
Or. Natural Desert Ass’n v. Lohn, 485 F. Supp. 2d 1190 (D. Or. 2007)).) However, there are no
facts alleged in the Complaint that NMFS will issue ITAs or that Federal Defendants will approve
an ITA for the same specific activity. As the case law makes clear, the “same action” refers to
“recurrent identical agency actions,” and it is not clear the same ITAs governing the same area and
activities will occur in the future. See Theodore Roosevelt Conservation P’ship, 661 F.3d at 79.
Moreover, these ITAs will be subject to additional notice and comment periods, which may
encompass new information for NFMS to weigh. Plaintiffs’ allegations that ITAs may be issued
in the future fails to show that these will cover equivalent ITAs previously issued by NFMS.
Therefore, the Court finds that no exception to mootness applies, and any challenge to expired
ITAs is moot.'!

Because the Court dismisses Plaintiffs’ claims based on the aforementioned grounds, the Court need not
address Defendants’ additional arguments concerning issue exhaustion. Perez v. New Jersey, No. 14-4610,
2015 WL 4394229, at *5 n.6 (D.N.J. July 15, 2015). As the Court find that it lacks jurisdiction to hear
Plaintiffs’ claim, the Court denies Plaintiffs’ Motion for a Preliminary Injunction, (ECF No. 23), as moot.
Aemer vy. Brewer, No. 18-1402, 2019 WL 13260173, at *1 (D.N.J. Apr. 1, 2019), aff'd sub nom., 808 F.
App’x 73 (3d Cir. 2020) (holding motion for preliminary injunction moot because the Court dismissed
Plaintiff's complaint); KDDI Glob. LLC v, Fisk Telecom LLC, No. 17-5445, 2017 WL 5479512, at *7
(D.N.J. Nov. 15, 2017) (same). Relatedly, since the preliminary injunction is moot, so too are Orsted’s and
Atlantic Shore’s Motions to Strike (ECF Nos. 57 and 59), as well as American Clean Power Association’ s
Motion for Leave to File an Amicus Curiae Brief, (ECF No. 53).

AO

IV. CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are GRANTED. Plaintiffs’
claims are DISMISSED without prejudice. Plaintiffs may file an amended complaint that cures
the deficiencies identified in this Opinion within forty-five (45)_.of the date of this Opinion. An
appropriate Order will accompany this Opinion. / ( ao
/ f
f □ wen
/ f Veo
4 ff nee
ROBERT KIRSCH NN
UNITED STATES DISTRICT JUDGE
Dated: February 29, 2024

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10278442. Public record. Not legal advice.