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

> District Court, District of Columbia · March 14, 2014

URL: https://www.frixlaw.com/law-library/cases/2658384

## Case

- **Court:** District Court, District of Columbia
- **Decided:** March 14, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Reggie B. Walton
- **Nature of suit:** Civil
- **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/2658384

## How later opinions describe it (automated extraction)

- stating that an incidental take statement is required where threatened or endangered species “are present in the [action] area” and the agency action is “reasonably certain to result in at least some nonlethal harassment”
- finding reasonable a stated purpose and need “to act upon the Proponents’ proposal to revise . . . [a] [record of decision] to expand the level of development by drilling 4,399 new producing wells and to relax seasonal restrictions in certain areas” (internal quotation marks o…

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PUBLIC EMPLOYEES FOR )
ENVIRONMENTAL RESPONSBILITY, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 10-1067 (RBW) (DAR)
)
TOMMY P. BEAUDREAU, et al., 1 ) Consolidated with:
)
Defendants, ) Civil Action No. 10-1073
) Civil Action No. 10-1079
CAPE WIND ASSOCIATES, LLC, ) Civil Action No. 10-1238
)
Intervenor. )
____________________________________)
)
ALLIANCE TO PROTECT )
NANTUCKET SOUND, et al., )
)
Plaintiffs, )
)
v. )
)
SALLY JEWELL, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
)
TOWN OF BARNSTABLE, )
MASSACHUSETTS, )
)
Plaintiff, )
)
v. )

1
Individuals sued in their official capacity have been replaced in the case caption and throughout this memorandum
opinion in accordance with Federal Rule of Civil Procedure 25.
)
SALLY JEWELL, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)
)
THE WAMPANOAG TRIBE OF GAY )
HEAD (AQUINNAH) )
)
Plaintiff, )
)
v. )
)
TOMMY P. BEAUDREAU, et al., )
)
Defendants, )
)
CAPE WIND ASSOCIATES, LLC, )
)
Intervenor. )
____________________________________)

MEMORANDUM OPINION

This consolidated case comprises four sets of interrelated claims concerning several

administrative decisions made by federal agencies approving the construction of various aspects

of an offshore wind energy project in Nantucket Sound, which is the first project of its kind in

the United States. First, the Public Employees for Environmental Responsibility (“PEER”), the

Cetacean Society International, the Lower Laguna Madre Foundation, Californians for

Renewable Energy, Three Bays Preservation, the Alliance to Protect Nantucket Sound, and

several individuals 2 (collectively, the “PEER plaintiffs”) allege that defendants Tommy

2
The individual plaintiffs are Cindy Lowry of Portland, Maine; Barbara Durkin of Northboro, Massachusetts;
Martha Powers of West Yarmouth, Massachusetts; and Richard Largay of Cummaquid, Massachusetts.

2
Beaudreau, the Director of the United States Bureau of Ocean Energy Management (“BOEM”); 3

Sally Jewell, the Secretary of the United States Department of the Interior; Daniel Ashe, the

Director of the United States Fish and Wildlife Service (“FWS”); Penny Pritzker, the Secretary

of the United States Department of Commerce; Eileen Sobeck, the Assistant Administrator of the

National Marine Fisheries Service (“NMFS”); and Lieutenant General Thomas P. Bostick, the

United States Army Chief of Engineers and Commanding General of the United States Army

Corps of Engineers (“Corps of Engineers” or “Corps”) have violated the Administrative

Procedure Act (“APA”), 5 U.S.C. § 701 (2006); the Endangered Species Act (“ESA”), 16 U.S.C.

§§ 1531-1544 (2006), the Migratory Bird Treaty Act, 16 U.S.C. § 703 (2006); and the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h (2006). Second Amended

Complaint for Declaratory and Injunctive Relief, ECF No. 47, (“PEER Compl.”) ¶¶ 1, 97-111.

Second, the Town of Barnstable, Massachusetts, alleges that Secretary Jewell; the United States

Department of the Interior; the BOEM; Director Beaudreau; Admiral Robert J. Papp, Jr., the

Commandant of the United States Coast Guard; the United States Coast Guard; Lieutenant

General Bostick; and the Corps of Engineers have violated the APA; the Outer Continental Shelf

Lands Act (“Shelf Lands Act”), as amended, 43 U.S.C. §§ 1331-1356a (2012); the NEPA; the

Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241, 120 Stat. 516; the

3
As explained by the Court of Federal Claims,

In May 2010, the Secretary of the Interior announced that [the Minerals Management Service
(“MMS”)] would be split into three separate agencies: the Bureau of Safety and Environmental
Enforcement (BSEE), the Bureau of Ocean Energy Management (BOEM), and the Office of
Natural Resources Revenue (ONRR). In June 2010, MMS was renamed [the Bureau of Ocean
Energy Management, Regulation and Enforcement (“BOEMRE”)]. The revenue-collection
functions of BOEMRE were transferred to ONRR in October 2010, and BOEMRE was then
divided into two new agencies, BSEE and BOEM, in October 2011.

Century Exploration New Orleans, LLC v. United States, 110 Fed. Cl. 148, 154 n.7 (2013) (citations omitted). For
the sake of clarity, this Court will refer throughout this memorandum opinion to the MMS and the BOEMRE by the
Bureau’s current name: the BOEM.

3
Clean Water Act, 33 U.S.C. § 1344 (2006); and the Rivers and Harbors Act, 33 U.S.C. § 403

(2006). First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 68

(“Barnstable Compl.”) ¶¶ 1, 175-225. Third, the Alliance to Protect Nantucket Sound and

several individuals 4 (collectively, the “Alliance plaintiffs”) allege that Secretary Jewell; the

United States Department of the Interior; Director Beaudreau; the BOEM; Admiral Papp; the

United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers violated the

APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594,

744-46 (codified at 43 U.S.C. § 1337(p) (2006)) (amending the Shelf Lands Act); the Coast

Guard and Maritime Transportation Act of 2006; the National Historic Preservation Act

(“Preservation Act”), 16 U.S.C. § 470f (2006); the Clean Water Act; and the Rivers and Harbors

Act. First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 69 (“Alliance

Compl.”) ¶¶ 1, 151-93. Finally, the Wampanoag Tribe of Gay Head (Aquinnah) alleges that

Director Beaudreau; Secretary Jewell; and the BOEM 5 violated the Preservation Act; the NEPA;

and the APA. Complaint for Declaratory and Injunctive Relief, 11-cv-1238, ECF No. 1

(“Wampanoag Compl.”) ¶¶ 1, 127-43.

Currently before the Court are three sets of cross-motions for summary judgment, as well

as the Plaintiffs’ Rule 56(e) Motion for Discovery Necessary to Explain Defendants’ Citation to

Documents Withheld as “Deliberative” and Other Extra-Record Assertions or, in the Alternative,

4
The individual plaintiffs are Ron Borjeson, Jeff Good, and James Keding of Plymouth, Massachusetts; Neil Good
and Robert Bussiere of Mashpee, Massachusetts; Cameron Dawson of East Falmouth, Massachusetts; Patricia J.
Dineen and David Moriarty of West Falmouth, Massachusetts; William H. Rypka of Sandwich, Massachusetts;
Richard Klein and Pauline K. Klein of Yorktown Heights, New York; Heather Rockwell of Marstons Mills,
Massachusetts; Barbara Jean Pennick of Marble Head, Massachusetts; Lou Gonzaga of Barnstable, Massachusetts;
Frank Caruso of Forestdale, Massachusetts; James R. Powell of West Tisbury, Massachusetts; Christopher Birdsey
of Hyannis, Massachusetts; and Crocker Snow, Jr. of Ipswich, Massachusetts.
5
For ease of reference, the Court refers to all the federal officials and agencies collectively as the “federal
defendants.”

4
to Strike, ECF No. 316 (“Pls.’ 56(e) Mot.”). Upon careful consideration of the parties’

submissions 6 and the several voluminous administrative records in this case, the Court grants

6
In addition to those documents already identified, the Court considered the following filings made by the parties:
(1) the PEER et al. Plaintiffs’ Memorandum in Support of Their Motion for Summary Judgment on Their Claims
Under the Endangered Species Act and Migratory Bird Treaty Act, ECF No. 171 (“Pls.’ ESA/MBTA Mem.”); (2)
the Federal Defendants’ Cross-Motion for Summary Judgment and Opposition to PEER Plaintiffs’ Motion for
Summary Judgment, ECF No. 205 (“Fed. Defs.’ ESA/MBTA Mem.”); (3) the Combined Memorandum of Law in
Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in Opposition to the PEER
et al. Plaintiffs’ Motion for Summary Judgment, ECF Nos. 203, 204 (“Int. Def.’s ESA/MBTA Mem.”); (4) the
PEER et al. Plaintiffs’ Memorandum in Opposition to Federal Defendants’ and Intervenor Cape Wind Associates
LLC’s Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF Nos.
221, 222 (“Pls.’ ESA/MBTA Opp’n”); (5) the PEER et al. Plaintiffs’ Notice of Clarification, ECF No. 229; (6) the
Federal Defendants’ Reply in Support of Their Cross-Motion for Summary Judgment, ECF No. 231 (“Fed. Defs.’
ESA/MBTA Reply”); (7) the Intervenor Cape Wind Associates LLC’s Reply in Support of Its Motion for Summary
Judgment Regarding the PEER et al. Plaintiffs’ Claims, ECF No. 232 (“Int. Def.’s ESA/MBTA Reply”); (8) the
Memorandum of Points and Authorities in Support of Plaintiff the Wampanoag Tribe of Gay Head (Aquinnah)’s
Motion for Summary Judgment, ECF No. 177 (“Wampanoag Mem.”); (9) the Federal Defendants’ Memorandum in
Opposition to Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment [ECF No. 177] and in
Support of Federal Defendants’ Cross-Motion, ECF Nos. 208, 209 (“Fed. Defs.’ Wampanoag Mem.”); (10) the
Combined Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary
Judgment and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah)’s Motion for Summary Judgment,
ECF Nos. 210, 211 (“Int. Def.’s Wampanoag Mem.”); (11) Plaintiff the Wampanoag Tribe of Gay Head
(Aquinnah)’s Memorandum in Opposition to Federal Defendants’ and Intervenor Cape Wind Associates LLC’s
Motions for Summary Judgment, and Reply in Support of Their Motion for Summary Judgment, ECF No. 223
(“Wampanoag Opp’n”); (12) the Federal Defendants’ Reply in Support of Summary Judgment on Claims Brought
by the Wampanoag Tribe of Gay Head (Aquinnah), ECF No. 226 (“Fed. Defs.’ Wampanoag Reply”); (13) the Reply
in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment Against the Wampanoag
Tribe of Gay Head (Aquinnah), ECF No. 228 (“Int. Def.’s Wampanoag Reply”); (14) the Plaintiffs’ Joint Motion for
Summary Judgment on all Remaining Claims and Memorandum in Support of Motion for Summary Judgment, ECF
No. 283 (“Pls.’ Remain Mem.”); (15) the Errata: Corrected Memorandum in Support of Motion for Summary
Judgment, ECF No. 286; (16) the Federal Defendants’ Memorandum in Opposition to Plaintiffs Alliance to Protect
Nantucket Sound et al.’s and Town of Barnstable’s Motions for Summary Judgment and in Support of Cross
Motions for Summary Judgment, ECF Nos. 300, 301 (“Fed. Defs.’ Remain Mem.”); (17) the Combined
Memorandum of Law in Support of Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment and in
Opposition to Plaintiffs’ Joint Motion for Summary Judgment on all Remaining Claims, ECF Nos. 303, 304 (“Int.
Def.’s Remain Mem.”); (18) the Plaintiffs’ Reply Memorandum of Law in Support of Their Motion for Summary
Judgment, ECF No. 317 (“Pls.’ Remain Opp’n”); (19) the Federal Defendants’ Reply in Support of Motion for
Summary Judgment on the Claims Brought by Plaintiffs Alliance to Protect Nantucket Sound et al. and Town of
Barnstable, ECF No. 330 (“Fed. Defs.’ Remain Reply”); (20) the Reply in Support of Cape Wind Associates LLC’s
Motion for Summary Judgment and in Opposition to Plaintiffs’ Joint Motion for Summary Judgment on all
Remaining Claims, ECF No. 328 (“Int. Def.’s Remain Reply”); (21) the Errata: Corrected Reply in Support of
Intervenor Cape Wind Associates LLC’s Motion for Summary Judgment, ECF No. 329; (22) the Federal
Defendants’ Opposition to Plaintiffs’ Rule 56(e) Motion for Discovery or, in the Alternative, to Strike, ECF No. 319
(“Fed. Defs.’ 56(e) Opp’n”); (23) Intervenor Cape Wind Associates LLC’s Opposition to Plaintiffs’ Rule 56(e)
Motion for Discovery and Motion to Strike, ECF No. 320 (“Int. Def.’s 56(e) Opp’n”); (24) the Plaintiffs’ Reply to
Defendants’ Oppositions to Plaintiffs’ Motion for Discovery or, in the Alternative, to Strike, ECF No. 321 (“Pls.’
56(e) Reply”); (25) the Brief Amicus Curiae of American Bird Conservatory in Support of the PEER et al.
Plaintiffs’ Motion for Summary Judgment, ECF No. 306; (26) the Amicus Curiae Brief of the National Trust for
Historic Preservation in Support of the Joint Motion for Summary Judgment Filed by the Alliance to Protect
Nantucket Sound, et al., ECF No. 307; (27) the [Proffered] Brief Amicus Curiae of Whale and Dolphin
Conservation (North America), ECF No. 308; (28) the Amicus Curiae Brief of the Cape Cod Marine Trades
(continued . . . )

5
partial summary judgment to each party as outlined below, and the Court further denies the

plaintiffs’ Rule 56(e) motion for additional discovery or, in the alternative, to strike.

I. BACKGROUND

An initial overview of several statutes is necessary to provide context for the plaintiffs’

claims in this litigation.

A. Statutory Background

1. The ESA

The ESA is “the most comprehensive legislation for the preservation of endangered

species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).

Congress designed the ESA “to save from extinction species that the Secretary of the Interior

designates as endangered or threatened.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great

Or., 515 U.S. 687, 690 (1995). With the exception of certain insects, the ESA defines an

“endangered species” as “any species which is in danger of extinction throughout all or a

significant portion of its range.” 16 U.S.C. § 1532(6). A “threatened species” is defined as “any

species which is likely to become an endangered species within the foreseeable future throughout

all or a significant portion of its range.” Id. § 1532(20). The ESA generally prohibits the taking

of an endangered or threatened species, id. § 1538(a)(1)(B)-(C), and the term “take” is defined as

(. . . continued)
Association, Inc. and Massachusetts Fishermen’s Partnership, Inc. in Support of a Selected Aspect of Plaintiffs’
Motion for Summary Judgment, ECF No. 309; (29) the Amicus Curiae Brief of the National Trust for Historic
Preservation in Support of the Motion for Summary Judgment Filed by the Wampanoag Tribe of Gay Head
(Aquinnah), ECF No. 186; (30) the Memorandum of the Conservation Law Foundation, the Natural Resources
Defense Council, and Mass Audubon in Support of Defendants’ Motions for Summary Judgment and in Opposition
to PEER et al. Plaintiffs’ Motion for Summary Judgment on Their Claims Under the Endangered Species Act and
Migratory Bird Treaty Act and in Opposition to the Wampanoag Tribe of Gay Head (Aquinnah) Motion for
Summary Judgment, ECF No. 212; and (31) the Memorandum of the Conservation Law Foundation, the Natural
Resources Defense Council, and Mass Audubon in Support of Defendants’ Motion for Summary Judgment and in
Opposition to Plaintiffs’ Motion for Summary Judgment on all Remaining Claims, ECF No. 302; as well as the
parties’ notices of supplemental authority and replies thereto, ECF Nos. 227, 298, 305, 358, 360, 363, 364, 365, 367,
368, and 369.

6
“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in any such conduct,” id. § 1532(19). However, the Secretary of the Interior or the

Secretary of Commerce “may permit,” under certain circumstances, “any taking otherwise

prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the

purpose of, the carrying out of an otherwise lawful activity.” Id. § 1539(a)(1)(B).

The Secretary of the Interior and the Secretary of Commerce have delegated the authority

to administer the ESA to the FWS and the NMFS. 50 C.F.R. § 402.01(b). Section 7(a)(2) of the

ESA mandates that

[e]ach Federal agency shall, in consultation with and with the assistance of the
[FWS or NMFS, as appropriate], insure that any action authorized, funded, or
carried out by such agency . . . is not likely to jeopardize the continued existence
of any endangered species or threatened species . . . .

16 U.S.C. § 1536(a)(2). In carrying out their duties under § 7, agencies “shall use the best

scientific and commercial data available.” Id.

An agency action “jeopardize[s] the continued existence” of a species where the action

“reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of

both the survival and recovery of a listed species in the wild by reducing the reproduction,

numbers, or distribution of that species.” 50 C.F.R. § 402.02. Accordingly, “[e]ach Federal

agency shall review its actions at the earliest possible time to determine whether any action may

affect listed species,” and “[i]f such a determination is made, formal consultation” with the FWS

and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the

FWS and/or the NMFS to review the proposed agency action and prepare a “biological opinion”

that includes “[a] detailed discussion of the effects of the action on listed species,” and also

render an “opinion on whether the action is likely to jeopardize the continued existence of a

listed species.” Id. §§ 402.14(h)(2)-(3). Where the biological opinion concludes that an agency

7
action may result in the incidental taking of a listed species, the FWS and/or NMFS must

“provide with the biological opinion a statement concerning incidental take that” specifies both

“the amount or extent[] of such incidental taking on the species,” as well as “terms and

conditions . . . that must be complied with by the Federal agency or any applicant to implement”

certain specified “reasonable and prudent measures” designed to minimize the impact of the

incidental taking. Id. §§ 402.14(i)(1)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such

“[r]easonable and prudent measures, along with the terms and conditions that implement them,

cannot alter the basic design, location, scope, duration, or timing of the action and may involve

only minor changes.” Id. § 402.14(i)(2).

2. The Migratory Bird Treaty Act

The Migratory Bird Treaty Act, unless otherwise “permitted by regulations,” makes it

“unlawful at any time, by any means or in any manner, to . . . take[7] . . . kill, [or] attempt to take

. . . or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . included in” certain

bilateral treaties 8 adopted for the protection of migratory birds. 16 U.S.C. § 703(a). Violations

of the Act can result in criminal sanctions. See id. §§ 706-707. However, “the Secretary of the

Interior is authorized,” upon consideration of certain factors, “to determine when, to what extent,

if at all, and by what means . . . to allow . . . [the] taking . . . [or] killing” of protected migratory

birds. Id. § 704(a); see also 50 C.F.R. § 21.11 (addressing the requirement for permits to, among

other things, take or kill migratory birds). The FWS, which implements and enforces the

7
The term “take” is not defined in the Migratory Bird Treaty Act. However, the implementing regulations of the
Act provide that, among other things, “[t]ake means to . . . wound[] [or] kill.” 50 C.F.R. § 10.12.
8
The treaties comprise bilateral conventions between the United States and Great Britain; the United States and
Mexico; the United States and Japan; and the United States and Russia, each concerning the protection of migratory
birds. 16 U.S.C. § 703(a); see also 50 C.F.R. § 10.13(a).

8
Migratory Bird Treaty Act on behalf of the Secretary of the Interior, 50 C.F.R. § 10.1, maintains

a list of protected migratory birds as outlined in the Act’s implementing regulations, id. § 10.13.

In addition to the protections outlined in the Migratory Bird Treaty Act,

[o]n January 10, 2001, President Clinton signed Executive Order (EO) 13186,
[which addresses the] “Responsibilities of Federal Agencies to Protect Migratory
Birds”. One of the requirements of E.O. 13186 is that each Federal agency taking
actions that have, or are likely to have, a measurable negative effect on migratory
bird populations is directed to develop and implement a [Memorandum of
Understanding] with the FWS that shall promote the conservation of migratory
bird populations.

77 Fed. Reg. 60,381, 60,382 (Oct. 3, 2012); see also Exec. Order No. 13,186, 66 Fed. Reg. 3853

(Jan. 10, 2001), reprinted in 16 U.S.C. § 701 app.

3. The NEPA

Under the NEPA, federal agencies must, “‘to the fullest extent possible[,]’ . . . prepare an

environmental impact statement (EIS) for ‘every . . . major Federal actio[n] significantly

affecting the quality of the human environment.’” 9 Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 15-16 (2008) (quoting 42 U.S.C. § 4332(2)(C)) (alterations in original). “An agency

is not required to prepare a full EIS if it determines—based on a shorter environmental

assessment (EA)—that the proposed action will not have a significant impact on the

environment.” Id. at 16 (citing 40 C.F.R. §§ 1508.9(a), 1508.13). The NEPA established the

Council on Environmental Quality, see 42 U.S.C. § 4342, which has the “‘authority to issue

9
The regulations interpreting the NEPA provide:

Human environment shall be interpreted comprehensively to include the natural and physical
environment and the relationship of people with that environment. . . . This means that economic
or social effects are not intended by themselves to require preparation of an environmental impact
statement. When an environmental impact statement is prepared and economic or social and
natural or physical environmental effects are interrelated, then the environmental impact statement
will discuss all of these effects on the human environment.

40 C.F.R. § 1508.14.

9
regulations interpreting’” the Act, New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 476

(D.C. Cir. 2012) (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004)); see

generally 40 C.F.R. pts. 1500-1508 (regulations interpreting the NEPA).

4. The Preservation Act

Congress enacted the Preservation Act in 1966, finding that the preservation of the

nation’s “heritage is in the public interest so that its vital legacy of cultural, educational,

aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future

generations of Americans.” 16 U.S.C. § 470(b)(4). Under the Preservation Act, Congress

authorized the Secretary of the Interior to create and “maintain a National Register of Historic

Places composed of districts, sites, buildings, structures, and objects significant in American

history, architecture, archeology, engineering, and culture.” Id. § 470a(a)(1)(A).

To protect identified historic sites, Section 106 of the Preservation Act provides that a

federal agency undertaking action on a historic site or licensing such an undertaking must, prior

to the

approval of the expenditure of any Federal funds on the undertaking . . . [,] take
into account the effect of the undertaking on any district, site, building, structure
or object that is included in or eligible for inclusion in the National Register. The
head of any such Federal agency shall afford the Advisory Council on Historic
Preservation . . . a reasonable opportunity to comment with regard to such
undertaking.

Id. § 470f. The Advisory Council has promulgated regulations that set forth the procedures that

federal agencies must follow to comply with Section 106. Id. § 470s. The regulations in turn

require that federal agencies engage in “consultation . . . [with] other parties with an interest in

the effects of the undertaking on historic properties,” 36 C.F.R. § 800.1(a), including “any Indian

Tribe . . . that attaches religious and cultural significance to” properties included on the National

10
Register as a result of their “traditional religious and cultural importance to [the] Indian Tribe,”

16 U.S.C. § 470a(d)(6); see also 36 C.F.R. §§ 800.2(c), 800.3(f)(2).

The consultation process requires federal agencies to: (1) identify the historic properties

that might be affected by the undertaking, 36 C.F.R. § 800.4; (2) evaluate the impact of any

adverse effects on those properties, id. § 800.5; and (3) “develop and evaluate alternatives or

modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on”

those properties, id. § 800.6; see also Corridor H Alts., Inc v. Slater, 166 F.3d 368, 370 (D.C.

Cir. 1999). When the required consultation has concluded, the agency and consulting parties

may sign a memorandum of agreement that “shall govern the undertaking and all of its parts.”

See § 800.6(c). The memorandum of agreement also “evidences the agency[’s] . . . compliance

with [S]ection 106.” Id. However, if “[a]fter consulting to resolve adverse effects pursuant to 36

C.F.R. § 800.6(b)(2), the agency . . . may determine that further consultation will not be

productive and terminate consultation. Any party that terminates consultation shall notify the

other consulting parties and provide them the reasons for terminating in writing.” Id. § 800.7(a).

Where the agency decides to terminate consultation, the agency “shall request that the

[Advisory] Council” provide comments and shall also “notify all consulting parties of the

request.” Id. § 800.7(a)(1). “The head of the agency shall take into account the [Advisory]

Council’s comments in reaching a final decision on the undertaking.” Id. § 800.7(c)(4).

5. The Shelf Lands Act

The Shelf Lands Act accords the United States jurisdiction over the “the outer

Continental Shelf,” 42 U.S.C. § 1333(a), which is defined as “all submerged lands lying seaward

11
and outside the area of lands beneath navigable waters as defined in section 1301 of this title,[10]

and of which the subsoil and seabed appertain to the United States and are subject to its

jurisdiction and control.” 43 U.S.C. § 1331(a). The Shelf Lands Act provides that the laws of

the United States apply not only to the outer Continental Shelf, but also “to the subsoil and

seabed of the outer Continental Shelf and to all . . . installations and other devices permanently or

temporarily attached to the seabed, which may be erected thereon.” Id. § 1333(a). As amended

by the Energy Policy Act of 2005, Pub. L. No. 109-58, 110 Stat. 594, the Shelf Lands Act

provides that “[t]he Secretary [of the Interior], in consultation with the Secretary of the

Department in which the Coast Guard is operating and other relevant departments and agencies

of the Federal Government, may grant a lease, easement, or right-of-way on the outer

Continental Shelf for activities” that, among other things, “produce or support production,

transportation, or transmission of energy from sources other than oil and gas,” including

renewable energy sources. Id. § 1337(p)(1)(C); see 30 C.F.R. §§ 585.100-.101. “The Secretary

of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to

regulate activities under” the Shelf Lands Act concerning such activities. 30 C.F.R. § 585.100.

See generally id. §§ 585.100-.1019 (regulations concerning leases, easements, and rights-of-way

for non-gas and non-oil related activities on the outer Continental Shelf).

6. The Coast Guard and Maritime Transportation Act of 2006

The Coast Guard Maritime Transportation Act of 2006, which was enacted on July 11,

2006, imposes specific duties on the Commandant of the Coast Guard with respect to offshore

wind energy projects in the Nantucket Sound. See Pub. L. No. 109-241, § 414, 120 Stat. 516,

540. Section 414 of the Act reads in its entirety:

10
The Shelf Lands Act generally defines “lands beneath navigable waters” as all underwater land extending outward
from the coastline of the United States that is subject to the laws of the United States. See 43 U.S.C. § 1301(a).

12
Sec. 414. Navigational Safety of Certain Facilities.

(a) Consideration of Alternatives.—In reviewing a lease, easement, or right-of-
way for an offshore wind energy facility in Nantucket Sound under section 8(p) of
the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), not later than 60 days
before the date established by the Secretary of the Interior for publication of a
draft environmental impact statement, the Commandant of the Coast Guard shall
specify the reasonable terms and conditions the Commandant determines to be
necessary to provide for navigational safety with respect to the proposed lease,
easement, or right-of-way and each alternative to the proposed lease, easement, or
right-of-way considered by the Secretary.
(b) Inclusion of Necessary Terms and Conditions.—In granting a lease, easement,
or right-of-way for an offshore wind energy facility in Nantucket Sound under
section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), the
Secretary shall incorporate in the lease, easement, or right-of-way reasonable
terms and conditions the Commandant determines to be necessary to provide for
navigational safety.

Id. at 540.

B. Factual Background 11

At the center of this consolidated civil action is the Nantucket Sound (the “Sound”), a

body of water located off the coast of Massachusetts. See CW65034. The Sound serves many

functions, including the home to various endangered species, a commercial and recreational

waterway, and a source of cultural and religious identity. See CW65356, CW111969-78.

Intervenor-defendant Cape Wind, with the approval of the federal defendants, also seeks to make

the Sound the location of the nation’s first offshore wind energy project. See CW201584.

11
Three sets of administrative record documents were submitted to the Court—one for each set of cross-motions for
summary judgment. See Notice of Submission of Jointly Prepared Appendix of Administrative Record Pursuant to
Local Civil Rule 7(N), ECF No. 234 (index to administrative record concerning claims by the Wampanoag Tribe of
Gay Head (Aquinnah)); Notice of Filing of Appendix, ECF No. 237 (index to administrative record concerning
ESA and Migratory Bird Treaty Act claims); Notice of Filing of Appendix, ECF No. 333 (index to administrative
record concerning plaintiffs’ remaining claims). For ease of reference, the Court refers in this Memorandum
Opinion to the Bates numbers assigned to the administrative record documents as outlined in the index for each
administrative record. The Bates numbers consist of alpha-numeric references. Bates numbers beginning with (1)
“CW” refer to documents from the BOEM; (2) “FWS” refer to documents from the FWS; (3) “NMFS” refer to
documents from the NMFS; and (4) “USCG” refer to documents from the Coast Guard.

13
1. The Cape Wind Project

The Cape Wind project has been described as “the first of its kind in the United States

and is one of the largest offshore wind projects in the world.” CW201584. Cape Wind “began

preliminary work on siting and designing a wind energy project in 2000,” NMFS1413, and

proposed an offshore wind energy park, to be located on the outer Continental Shelf on

Horseshoe Shoal 12 in the Sound, CW65037. As described in the Federal Register,

[t]he proposed wind park would consist of 130 offshore wind turbine generators
arranged to maximize the park’s maximum potential electric output of
approximately 454 megawatts. The wind-generated electricity from each of the
turbines would be transmitted via a 33 kilovolt submarine transmission cable
system to a centrally located electric service platform. This platform would
transform and transmit electric power to the Cape Cod mainland (12+ miles) via
two 115 kilovolt lines, where it would ultimately connect with the existing power
grid.

71 Fed. Reg. 30,693, 30,693 (May 30, 2006); see also, e.g., NMFS1415-22 (providing a more

detailed description of the Cape Wind’s project proposal). Prior to its construction, and as

discussed below, the Cape Wind project was and is subject to several regulatory and

administrative procedures and approvals.

2. The Regulatory Approval Process

“In November 2001, [Cape Wind] filed a permit application with the [Corps of

Engineers], New England District, under section 10 of the Rivers and Harbors Act of 1899 . . . .”

71 Fed. Reg. at 30,693. The Corps issued a draft EIS in 2004. See CW142751. Upon the

passage of the Energy Policy Act of 2005, the BOEM took over “as a lead agency for

coordinating the permitting process with other Federal agencies.” 71 Fed. Reg. at 30,693;

12
A “shoal” is “a sandbank or sandbar that makes the water shallow.” See Merriam-Webster Dictionary, available
at http://www.merriam-webster.com/dictionary/shoal (last visited Mar. 4, 2014).

14
CW111956. As outlined below, the BOEM subsequently initiated required consultation with

various agencies.

a. Formal Consultation Under Section 7 of the ESA

i. The FWS’s Biological Opinion and Incidental Take Statement

The BOEM consulted informally with the FWS from November 17, 2005, until May 19,

2008, when the BOEM requested initiation of formal consultation. See FWS92-96. The FWS

issued its biological opinion on November 21, 2008. See FWS1. The biological opinion “only

applies to the roseate tern and piping plover,” two types of migratory birds, “as listed species

under the ESA.” FWS3. The FWS reached the following conclusion:

After reviewing the current status of the Atlantic Coast piping plover and the
northeastern population of the roseate tern, the environmental baseline for the
action area, and all effects of the proposed Cape Wind Project, it is the Service’s
biological opinion that the project is not likely to jeopardize the continued
existence of these species. No critical habitat has been designated for the Atlantic
Coast breeding ranges of these species; therefore, none will be affected.

FWS73. The FWS included with its biological opinion an incidental take statement authorizing

the taking of “four to five roseate terns per year (80-100 terns over the 20-year life of the

project)” and “a maximum of 10 piping plovers . . . over the life of the [project].” FWS75. With

respect to the taking of piping plovers, the FWS added:

Because the formulation of mortality estimates is very complex, new empirical
information demonstrating one or more of the following circumstances will
constitute new evidence that estimated take of piping plovers has been exceed:

1. Annual flights across the project area exceed the total number of pairs
breeding in and north of the action area. This is equivalent to approximately
18% of migration flights by adults and young of the year (pairs x 5.5).
2. More than 20% of flights occur at rotor height.
3. Avoidance rates <0.95.

15
Id. The FWS also “estimate[d] that implementation of the Bird Island restoration project[13] will

offset any potential roseate tern mortality that may occur from the Cape Wind Project.” Id.

The incidental take statement included terms and conditions necessary to implement

reasonable and prudent measures pursuant to the ESA. See FWS75-78. Among these measures

was a discussion of an operational adjustment that the FWS had considered but ultimately

decided against:

The [FWS] . . . considered as a reasonable and prudent measure[] an operational
adjustment to the wind facility that would require the temporary and seasonal shut
down of the [wind turbine generators] through the feathering of the rotors.
Feather of the rotors causes them to face the wind and stop spinning, and would
reduce the risk of collision by roseate terns and, to a limited extent, migrating
piping plovers transiting the Horseshoe Shoal project area. Although the [FWS]
considered that result in this “operational adjustment” would be based on weather
and day light parameters that reduce visibility, and would be limited in time to
seasons when plovers and peak numbers of roseate terns are expected to be
present (a few weeks in early to mid-May and a few weeks in late August to mid-
September), it was determined by [the BOEM] and [Cape Wind] . . . to not be
reasonable and prudent based on the following:

The operational adjustment (shut down of the turbine rotors to a neutral position)
is not reasonable because it does not meet the [reasonable and prudent measure]
regulatory definition as a “reasonable measure” as it modifies the scope of the
project in a manner that is adverse to the project’s stated purpose and need, that is
to make a substantial contribution to enhancing the region’s electrical reliability
and achieving the renewable energy requirements under the Massachusetts and
regional renewable portfolio standards. [The BOEM] considers that this may
involve more than a “minor change” (50 C.F.R. § 402.14(i)(2)[)].

[The BOEM] has also determined that the [reasonable and prudent measure] is not
reasonable because the uncertainty regarding the project’s ability to generate
electricity during the two time frames (late April to mid-May and late August to
mid-September) reduces the project’s predicted potential electrical output in a

13
According to the FWS biological opinion, “the Bird Island restoration project is to restore and repair the existing
stone revetment in its current location on the island and to use clean dredged material to raise the elevation of 0.4
acre of habitat landward of the revetment.” FWS67. The FWS opined that the “project is likely to have measurable
beneficial effects for the roseate tern by preventing further loss of existing essential nesting habitat, by creating
additional suitable nesting habitat, and by increasing the carrying capacity of the island which is the most productive
breeding site for the species in Buzzards Bay.” Id. The FWS acknowledged that “this project may not be completed
. . . until some point after the Cape Wind Project is constructed.” FWS67-68.

16
significant enough way to have a deleterious effect on anticipated revenues,
financing and power purchasing agreements.

Furthermore, [the BOEM] indicates that the proposed timeframes for the
operational adjustment, although limited by season, visibility and time of day,
constitute peak period hours, when the energy supplied to the [Independent
System Operator of] New England (the regional transmission organization) has
greater market value. Therefore, the [reasonable and prudent measure] may not
be prudent because economic cost makes this measure not feasible for project
proponents to implement.

FWS76-77 (citations omitted).

ii. The NMFS’s Biological Opinion and Incidental Take
Statement

The “BOEM and [the] NMFS began discussing consultation requirements in January

2006.” NFMS1414. The “NMFS provided technical assistance to [the] BOEM as they drafted a

new [draft EIS][14] and draft [biological assessment].” Id. The “BOEM provide[d] NMFS with a

final [biological assessment] and request for formal consultation in a letter dated May 19, 2008,”

and “[c]onsultation was initiated on May 22, 2008.” Id. The NMFS issued its biological opinion

on November 18, 2008 (“2008 biological opinion”), which

concluded that the proposed action was likely to adversely affect but was not
likely to jeopardize the continued existence of loggerhead, Kemp’s ridley,
leatherback or green sea turtles. Additionally, [the] NMFS concluded that the
proposed action was not likely to adversely affect right, humpback or fin whale
species. Because no critical habitat is designated in the action area, none will be
affected by the proposed action. The [biological] [o]pinion included an Incidental
Take Statement exempting the incidental take by acoustic harassment of 3-7 sea
turtles during each 4 hour pile driving event (130 events total) and 13-28 sea
turtles during the geophysical survey.
....

In the spring of 2010, over 90 North Atlantic right whales were observed in
Rhode Island Sound and nearby waters, including areas to be transited by project
vessels originating from the staging site at Quonset, [Rhode Island]. While right

14
The NMFS had previously “provided comments on [a] [draft EIS] [prepared by the Corps of Engineers] and
indicated to the [Corps] that consultation pursuant to Section 7 of the ESA would be necessary for the proposed
project.” NMFS1414.

17
whales were not sighted in the area proposed for construction (i.e., the project
footprint on Horseshoe Shoal within Nantucket Sound), right whales were
observed in nearby areas and along the route that would be used by vessels
moving between the project footprint and the project staging area near Quonset,
[Rhode Island]. When compared to sightings in previous years, these sightings
represent a higher than average number of right whales in the action area and
nearby areas. As noted in [the] BOEM’s July 13, 2010 letter to [the] NMFS,
these sightings represent new information that when analyzed may reveal effects
of the action that may affect listed species in a manner or to an extent not
previously considered. As such, [the] NMFS concurred with [the] BOEM’s
determination that reinitiation of consultation was appropriate; specifically, to
consider the new information on the presence of right whales in the action area.
Consultation was reinitiated on July 26, 2010.

NMFS1414-15. The reinitiation of consultation culminated in a second biological opinion,

which the NMFS issued on December 30, 2010 (“2010 biological opinion”). NMFS1413. The

2010 biological opinion reached the same conclusions as the first opinion about the project’s

effects on listed whales and sea turtles. See NMFS1534. The NMFS issued with the 2010

biological opinion a second incidental take statement for listed sea turtles, which authorized the

same level of take as the prior incidental take statement. See NMFS1536.

b. The BOEM and FWS Consultation Regarding the Impact of the Cape
Wind Project on Migratory Birds

The BOEM’s final EIS 15 notes that “[a]vian resources that are likely to occur in the area

of the proposed action are protected under the Migratory Bird Treaty Act.” See CW157080

(citing also Executive Order 13,186). “From March 2002 through September 2006, aerial, boat,

and radar surveys were conducted by [Cape Wind]. Additionally, the [Massachusetts Audubon

Society] conducted aerial and boat surveys from August 2002 through September 2004.” Id.

Cape Wind and the Massachusetts Audubon Society “collectively flew 125 systematic aerial

surveys to document avian species and distributions in Nantucket Sound,” and the surveys took

15
The final EIS, which was prepared pursuant to the NEPA and the Shelf Lands Act, is discussed in further detail
below.

18
place “during the daytime throughout different seasons from March 2002 through March 2006.”

CW157081; see also CW66154 (tables summarizing survey results). “A total of 17 boat surveys

were conducted from May 2002 [through] March 2005 during the same study periods as the

aerial surveys,” and Cape Wind “also conducted radar surveys during the spring and fall

migration periods.” CW157081. The BOEM concluded that the existing surveys were sufficient

to inform its final EIS. See CW67697-67770 (responding to comments suggesting that the

BOEM obtain additional information about the project’s impacts on migratory birds).

During the course of the Section 7 consultation, the FWS

recommended several studies to more fully assess the project’s impacts . . . on
migratory birds. Certain information was collected, and some was not. While
they would have generated information useful to assessment of migratory birds
generally, the unimplemented studies would not necessarily yield information that
would have significantly addressed the uncertainties in the analysis of impacts to
the roseate tern and piping plover specifically.

FWS4. The FWS biological opinion did not specifically address other migratory birds not listed

in the ESA. Id. However, one of the terms and conditions of the FWS biological opinion

requires the BOEM, Cape Wind, and the FWS to “coordinate in the development of specific pre-

and post-construction monitoring protocols . . . for [an] Avian and Bat Monitoring Framework

for the Cape Wind Proposed Offshore Wind Facility.” FWS77.

On June 4, 2009, the BOEM and the FWS signed a Memorandum of Understanding

pursuant to section 3 of Executive Order 13,186. CW242438. The Memorandum “identifies

specific areas in which cooperation between the agencies would substantially contribute to the

conservation and management of migratory birds and their habitats.” Id. Both agencies also

reviewed drafts of the Avian and Bat Mitigation and Monitoring Plan prepared by Cape Wind.

See CW242441. “The monitoring plan was developed in coordination with [the BOEM and the

FWS] . . . and includes several monitoring requirements as a result of previous regulatory

19
review,” including the required pre- and post-construction monitoring. CW237369. The lease

for the Cape Wind project, which was issued by the BOEM on October 6, 2010, see CW119269;

CW119275, states that the monitoring plan is “mandatory,” CW119314, and the BOEM also

conditioned approval of Cape Wind’s Construction and Operation Plan “on an acceptable Avian

and Bat Monitoring Plan,” CW119704. 16

c. The NEPA and Shelf Lands Act Review Process

“The Energy Policy Act of 2005 was enacted on August 8, 2005, giving the Department

of the Interior authority for issuing leases, easements, or rights-of-way for alternative energy

projects on the Outer Continental Shelf . . . .” 71 Fed. Reg. at 30,693. Accordingly, the BOEM

began to “act as a lead agency for coordinating the permitting process with other Federal

agencies.” Id.; see CW111956.

Once [the BOEM] became the lead agency for the [Cape Wind] project, [the
BOEM] determined that a new [d]raft EIS was needed and developed the scope of
the study for the [d]raft EIS by requesting comments on the Proposed Action in a
public notice published in the Federal Register on May 30, 2006 (71 FR 30693).
The [BOEM] treated all the comments previously made on the [Corps of
Engineers’] [d]raft EIS as scoping comments for [the BOEM’s] [d]raft EIS. The
[BOEM] also considered the comments that were made at [Corps] public
meetings held in Yarmouth, Martha’s Vineyard, Cambridge, and Nantucket,
Massachusetts.

CW111956. The BOEM issued a new draft EIS on January 18, 2008. See 73 Fed. Reg. 3482,

3482 (Jan. 18, 2008); CW111956. “The public comment period on the [d]raft EIS lasted 60 days

(until March 20, 2008) and was then extended another 30 days (until April 21, 2008) in order to

provide the public with additional time to consider and submit comments on the [d]raft EIS.”

16
“The final [Avian and Bat Monitoring Plan] was approved by [the] FWS on September 6, 2012, and by [the]
BOEM on November 20, 2012.” Fed. Defs.’ ESA/MBTA Mem. at 8 & n.8 (citing http://www.boem.gov/
Renewable-Energy-Program/Studies/Cape-Wind.aspx (last visited Mar. 4, 2014)).

20
CW111956. The BOEM made the final EIS available to the public on January 21, 2009. See id.;

74 Fed. Reg. 3635, 3635 (Jan. 21, 2009).

Subsequently, on March 8, 2010, the BOEM prepared an environmental assessment

(“2010 Assessment”). See CW111957. As explained by the BOEM,

[t]he purpose of th[e] [2010 Assessment] was to determine whether there were
significant new circumstances or information relevant to environmental concerns
and impacts associated with the Proposed Action that were not fully addressed in
the [f]inal EIS . . . . The [BOEM] used this [2010 Assessment] to determine
whether the [f]inal EIS needed to be supplemented. The [BOEM] found that no
significant new information existed that would necessitate a re-analysis of the
range of the alternatives or the kinds, levels, or locations of the impacts of the
Proposed Action on the human environment. After considering public comments
on the [2010 Assessment] and additional new information that was received after
the [2010 Assessment] was made publicly available, [the BOEM] concluded that
the analyses in the [f]inal EIS remained valid, and that, because a supplemental
EIS was not required, it issued a Finding of No New Significant Impact
(FONNSI) on April 28, 2010.

Id.

On April 28, 2010, the BOEM also issued a Record of Decision (“2010 ROD”), which

stated that “[t]he decision is hereby made to offer a commercial lease to [Cape Wind] in

accordance with . . . [the Shelf Lands Act], under the terms and conditions” specified in the 2010

ROD, id., and in a lease issued to Cape Wind by the BOEM on October 6, 2010, see CW119269;

CW119275. The lease granted Cape Wind “the exclusive right and privilege” to construct,

operate, and eventually decommission the proposed wind energy facility on Horseshoe Shoal in

the Sound. See CW119270. Among the terms and conditions incorporated into the Cape Wind

lease are the terms and conditions which the Coast Guard deemed necessary pursuant to § 414 of

the Coast Guard and Maritime Transportation Act of 2006. See CW119319. The Coast Guard

had previously issued the §414 terms and conditions on August 2, 2007. See CW66389;

CW66393.

21
The 2010 ROD required Cape Wind to submit to BOEM a Construction and Operations

Plan. CW111957; see also CW119697. Cape Wind “submitted a [Construction and Operations

Plan] for the project on October 29, 2010, and submitted a modified [Construction and

Operations Plan] on February 4, 2011.” CW119697. Thereafter,

[o]n February 22, 2011, a “Notice of Preparation of an Environmental
Assessment” was posted on the [BOEM] website to solicit public input in
anticipation of the preparation of [a] 2011 [environmental assessment (“2011
Assessment”)]. The purpose of the comment period was to provide the public
with an opportunity to review and comment on the [Construction and Operations
Plan] as well as to provide [the BOEM] with any significant new information or
circumstances relevant to environmental concerns and bearing on the proposed
action or its impacts. The [Construction and Operations Plan] was made available
for review on the [BOEM] website . . . . Consulting parties and local
governments were informed of the comment period via email, which provided the
location of the [BOEM] website and [the BOEM] mailing address for receiving
comments.

The purpose of the 2011 [Assessment] was to evaluate whether substantial
changes in the proposed action that are relevant to environmental concerns or
significant new circumstances or information relevant to environmental concerns
and bearing on the proposed action had come to light since the [final EIS] and the
2010 [Assessment] were issued. If so, [the BOEM] would be required to prepare
a[] [supplemental EIS] before taking action on [Cape Wind’s Construction and
Operations Plan]. Issues considered in the 2011 [Assessment] include: additional
surveys and sampling; conflicts with aviation traffic and fishing use; emergency
response; migratory birds; microclimate; oil within wind turbine generators;
sloshing dampers; transition piece grout; permits issued by other Federal
agencies; and consultations with other agencies. [The BOEM] did not directly
address comments related to the content of the [Avian and Bat Monitoring Plan]
in the [2011 Assessment]; rather it [did so] in its review of that plan.

CW119705; see also CW119743-86 (2011 Assessment). The BOEM “determined that the [final

EIS] fully discussed the significant environmental consequences associated with the approval of”

Cape Wind’s Construction and Operations Plan, and approved the plan in a record of decision

dated April 18, 2011 (“2011 ROD”). CW119705-06.

22
d. Consultation Under Section 106 of the Preservation Act

“The [Advisory Council on Historic Preservation] formally entered into the Section 106

consultation with the Corps [of Engineers] for the” proposed wind energy park “in March of

2005 upon its determination that the project would adversely affect historic properties on or

eligible for the National Register of Historic Places.” CW44617. After the BOEM took over as

the lead agency, it

commenced its Section 106 process in late 2005 and conducted more than twenty-
one meetings through February 2010. [The BOEM] invited the Massachusetts
[State Historic Preservation Officer] to be a cooperating party on March 16, 2006,
to which she replied “the [Massachusetts Historical Commission] is a consulting
agency.”

CW112019. The Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag

Tribe were also consulting parties to the Section 106 process. CW112021. The BOEM

published a draft EIS pursuant to the NEPA in January of 2008, which “included its initial

identification of properties and its findings of adverse effects.” CW112021. The comments to

the draft EIS objected to the methodology that the BOEM used to identify affected properties,

and the BOEM responded to the comments by revising its methodology and undertaking new

identification efforts. Id. “From that point forward, the NEPA and [S]ection 106 process

timelines” proceeded independently of one another. Id. As part of its Section 106 consultation,

the BOEM

conducted interagency and intergovernmental consultation meetings, including
tribes, to solicit comments and concerns related to the [Cape Wind] project,
including issues related to cultural resources and historic preservation, in
November 2005, June of 2006, and February of 2007[,] leading up to the
circulation of the [draft EIS], and in July of 2008 to discuss concerns raised in
comments to the [draft EIS]. One-on-one government-to-government meetings
with tribes in advance of the [draft EIS] and its findings also took place in July of
2006, February of 2007 . . . and July of 2007.

23
Following its evaluation of [the draft EIS] comments, [the BOEM] resumed its
Section 106 process with a series of consultation meetings specific to the
[S]ection 106 process that began in July 2008. Upon completion of its second
identification of properties effort and these consultations, the [BOEM] released a
Finding of Adverse Effect as an individual document on December 29, 2008[,] to
describe its new list of identified eligible properties and those adversely affected
under the revised methodology. The December 2008 Finding identified 29
historic properties as being adversely affected, including one property of
cultural[] importan[ce] to the Mashpee tribe and two [National Historic
Landmarks]. The December 2008 Finding was included in the analysis of the
[f]inal EIS for the project, [and] circulated for public comment in January 2009.
Government-to-government consultation meetings and Section 106 consultations
meetings with the parties followed throughout 2009 and in early 2010, as
described below.

Through this process, [the BOEM] considered additional information from tribes
and other consulting parties via meetings, written communications, and site visits.
[The BOEM] also worked closely with the Advisory Council for Historic
Preservation and the National Park Service (Keeper of the National Register and
[National Historic Landmark] personnel) in a continued effort to assess the nature
and level of adverse effects and to make determinations of the eligibility of
additional properties, as well as to determine the appropriate scope of the
[S]ection 106 process. As a result, [the BOEM] released a Revised Finding of
Adverse Effect on January 13, 2010. The Revised Finding added Nantucket
Sound and four individual onshore [traditional cultural properties] to the list of
affected historic properties, and clarified the types of alterations that could occur
to each.

A draft Memorandum of Agreement (MOA) was distributed at the June 16, 2009
consultation meeting. The draft MOA contained several proposed mitigation
measures. [The BOEM] asked attendees to review the MOA and provide [the
BOEM] with any comments on the document or other ideas to avoid, minimize or
mitigate adverse effects. The draft MOA was re-circulated to consulting parties at
the January 13, 2010 full Section 106 meeting. The [State Historic Preservation
Officer] concurred with the revised Finding in February 2010. Following public
review of the revised Finding and additional site visits and several meetings with
parties in February 2010, the Secretary [of the Interior] determined that further
efforts to agree on an MOA would not be productive, and on March 1, 2010,
submitted a request to the [Advisory Council for Historic Preservation] for their
comment to terminate the [S]ection 106 process.

CW112021-22. “The [Advisory Council for Historic Preservation] comment was received [by

the Secretary of the Interior] on April 2, 2010.” CW112024; see also CW112696.

24
3. The Current Litigation

The PEER plaintiffs, comprised of several environmental groups, members of those

groups, and individuals who use the Nantucket Sound, PEER Compl. ¶¶ 3-29, assert three claims

for relief based on alleged deficiencies in the FWS’s and the NMFS’s biological opinions and

incidental take statements, id. ¶¶ 97-99. They also challenge the issuance of the records of

decision, the lease, and the approval of the Cape Wind construction operations plan, on the

grounds that each relies on invalid biological opinions. Id. ¶¶ 100-103. The PEER plaintiffs also

allege that the BOEM and the Corps of Engineers should have obtained a permit for the take of

migratory birds prior to approving the Cape Wind project. Id. ¶ 104. Finally, they claim that the

BOEM violated the NEPA by failing to issue a supplemental EIS concerning the recent

aggregations of right whales, by failing to address certain other data or effects of the project, and

by relying on the Avian and Bat Monitoring Plan. Id. ¶¶ 106-110.

The Town of Barnstable “is a municipal corporation and political subdivision of

Massachusetts” that “has jurisdiction over extensive lands on the south side of Cape Cod along

Nantucket Sound.” Barnstable Compl. ¶ 10. In its complaint, Barnstable asserts nine claims for

relief based on the BOEM’s alleged failure to adequately address the finding that the Sound is

eligible for listing in the National Register or to survey all historic properties in and around the

Cape Wind project area, in violation of the Preservation Act. Id. ¶¶ 200-08. Barnstable also

challenges the adequacy of the BOEM’s final EIS, as well as its failure to issue a supplemental

EIS, id. ¶¶ 209-14, the BOEM’s alleged failure to provide for safety 17 as required by the Shelf

17
Specifically, the Town of Barnstable alleges that

[t]he [d]efendants have . . . fail[ed] to ensure that the [Cape Wind project] . . . will be carried out
in a manner that provides for the safety of parties engaging in: a) commercial and general aviation
activities; b) commercial shipping and commercial transportation between the Cape and the

(continued . . . )

25
Lands Act, id. ¶¶ 215-19, and the Coast Guard’s alleged failure to specify appropriate terms and

conditions as to navigation safety in the Sound as required in § 414 of the Coast Guard and

Maritime Transportation Act of 2006, id. ¶¶ 220-25.

The Alliance plaintiffs, a non-profit environmental group and several individuals who use

or enjoy the Sound, Alliance Compl. ¶¶ 6-24, assert six claims under the NEPA, the Shelf Lands

Act, § 414, and the Preservation Act similar to those asserted by the PEER plaintiffs and the

Town of Barnstable, id. ¶¶ 151-76. The Alliance plaintiffs additionally allege violations of the

Clean Water Act and the Rivers and Harbors Act. See id. ¶¶ 177-93.

The Wampanoag Tribe of Gay Head (Aquinnah) states in its complaint that “[t]he Tribe

has lived on the shores of Nantucket Sound since time immemorial,” and “depends on the

Nantucket Sound for food, jobs, spiritual ceremonies, and cultural continuity, and the Sound is

essential to the Tribe’s religious ceremonies and traditional religious practices.” Wampanoag

Compl. ¶¶ 13-14. The Tribe’s complaint asserts three claims for relief based on the federal

defendants’ alleged failure to consider the impact of the Cape Wind project on subsistence

fishing, the failure to adequately consider the impact of the finding that the Nantucket Sound is

eligible for listing in the National Register, and the failure to engage in timely and adequate

Section 106 consultation with the Tribe. Id. ¶¶ 127-43.

The Court granted Cape Wind Associates, LLC’s (“Cape Wind”) unopposed motion for

leave to intervene as a defendant. See September 8, 2010 Minute Order. The Court

subsequently consolidated the cases filed by the PEER, Alliance and Town of Barnstable

(. . . continued)
Islands; c) oil spill prevention and response operations; and d) search and rescue operations.

Barnstable Compl. ¶ 216

26
plaintiffs, 18 see October 25, 2010 Minute Order, as well as the case filed by the Wampanoag

Tribe of Gay Head (Aquinnah), see July 8, 2011 Minute Order.

The parties have now filed cross-motions for summary judgment: one concerning the

PEER, Alliance, and Town of Barnstable plaintiffs’ ESA and Migratory Bird Treaty Act claims;

a second concerning the PEER, Alliance, and Town of Barnstable plaintiffs’ remaining claims;

and a third concerning the claims of the Wampanoag Tribe of Gay Head (Aquinnah).

Additionally, the PEER, Alliance, and Town of Barnstable plaintiffs have filed a motion

pursuant to Federal Rule of Civil Procedure Rule 56(e) seeking additional discovery concerning

certain documents cited in the federal defendants’ legal memoranda, or in the alternative to strike

those same documents.

II. STANDARD OF REVIEW

“Summary judgment is the proper mechanism for deciding, as a matter of law, whether

an agency action is supported by the administrative record and consistent with the APA standard

of review.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010)

(citing Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007), aff’d, 408

F. App’x 383 (D.C. Cir. 2010)); see also Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir.

1977). But due to the limited role of a court in reviewing the administrative record, the typical

summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable.

Stuttering, 498 F. Supp. 2d at 207. Rather, “[u]nder the APA, it is the role of the agency to

resolve factual issues to arrive at a decision that is supported by the administrative record,

whereas ‘the function of the district court is to determine whether or not as a matter of law the

18
Another case was consolidated at the same time, but was later dismissed with prejudice. See Stipulation of
Voluntary Dismissal of All Claims in Martha’s Vineyard / Dukes County Fisherman’s Ass’n v. Salazar, ECF No.
149; see also July 2, 2012 Minute Order.

27
evidence in the administrative record permitted the agency to make the decision it did.’” Id.

(quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words,

“when a party seeks review of agency action under the APA, the district judge sits as an

appellate tribunal,” and “[t]he ‘entire case’ on review is a question of law.” Am. Bioscience, Inc.

v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citations omitted).

III. ANALYSIS

A. Whether the Coast Guard Violated § 414 of the Coast Guard and Maritime
Transportation Act of 2006

The Town of Barnstable and the Alliance plaintiffs have moved for summary judgment

on their claims that the United States Coast Guard violated § 414 of the Coast Guard and

Maritime Transportation Act of 2006. Pls.’ Remain Mem. at 15-16; Pls.’ Remain Opp’n at 21;

Alliance Compl. ¶¶ 167-70; Barnstable Compl. ¶¶ 220-25. The federal defendants and Cape

Wind each move for summary judgment on the ground that no final agency action resulted from

the United States Coast Guard’s issuance of terms and conditions for the Cape Wind lease

pursuant to § 414, and thus there can be no APA challenge to those terms and conditions. 19 Fed.

Defs.’ Remain Mem. at 14; Fed. Defs.’ Remain Reply at 1; Int. Def.’s Remain Mem. at 19; Int.

Def.’s Remain Reply at 1-2. Alternatively, the federal defendants and Cape Wind argue that

even if the issuance of the terms and conditions constitutes final agency action, the Coast Guard

fully complied with the provisions of the Coast Guard and Maritime Transportation Act of 2006.

Fed. Defs.’ Remain Mem. at 14; Fed. Defs.’ Remain Reply at 1; Int. Def.’s Remain Mem. at 19;

Int. Def.’s Remain Reply at 1-2.

19
Because the Court concludes that there has been no violation of § 414 of the Coast Guard and Maritime
Transportation Act of 2006, the Court will not address whether the issuance of terms and conditions pursuant to
§ 414 constitutes final agency action.

28
Section 414 was passed in large part due to the pendency of Cape Wind’s proposal. See

152 Cong. Rec. S6439-40 (daily ed. June 22, 2006) (statement of Senator Stevens). The

legislative history discloses Congress’ position that “[i]t must be left up to the Commandant of

the Coast Guard to decide what is necessary to prevent negative impact to navigation, aviation,

and communications caused by the proposed wind farm.” Id. at S6439. To that end, § 414

provides that “the Commandant of the Coast Guard shall specify the reasonable terms and

conditions the Commandant determines to be necessary to provide for navigational safety with

respect to the proposed lease . . . and each alternative” to the proposal, and also that “the

Secretary [of the Interior] shall incorporate into the lease . . . reasonable terms and conditions the

Commandant determines to be necessary to provide for navigational safety.” Pub. L. No. 109-

241, 120 Stat. at 540 (emphasis added).

There is no case law construing § 414, and so the Court must turn to the familiar two-step

analysis of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). “When a court reviews an agency’s construction of the statute which it administers, it is

confronted with two questions. First, always, is the question whether Congress has directly

spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the

matter.” Chevron, 467 U.S. at 842. And it is well established that

[t]he judiciary is the final authority on issues of statutory construction and must
reject administrative constructions which are contrary to clear congressional
intent. If a court, employing traditional tools of statutory construction, ascertains
that Congress had an intention on the precise question at issue, that intention is
the law and must be given effect.

Id. at 843 n.9 (citations omitted). Among the “traditional tools of statutory interpretation” are the

“text, structure, purpose, and legislative history” of the statute.” Pharm. Research & Mfrs. of

Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). If the Court determines that Congress’

29
intent is unclear, then the court proceeds to the second step under Chevron, which requires the

court to “defer to the agency’s interpretation as long as it is ‘based on a permissible construction

of the statute.’” Bluewater Network v. EPA, 372 F.3d 404, 410 (D.C. Cir. 2004) (quoting

Chevron, 467 U.S. at 843)).

As to step one of the Chevron analysis, the Court “begins, as always, with the text of the

statute.” Chao v. Day, 436 F.3d 234, 235 (D.C. Cir. 2006). And “[w]here, as here, [the text] is

plain and unambiguous,” the Court’s “analysis ends with the text as well.” Id. The mandatory

language of § 414 makes clear that the Commandant “shall” communicate to the Secretary of the

Interior the terms and conditions deemed necessary for navigational safety, and the Secretary of

the Interior “shall” include those terms and conditions in any lease that might be issued pursuant

to § 1337(p) of the Shelf Lands Act. Pub. L. No. 109-241, 120 Stat. at 540. The statute leaves

no discretion to either the Commandant as to the decision to issue terms and conditions, or to the

Secretary of the Interior regarding the decision to include those terms and conditions in a

§ 1337(p) lease. See Ass’n of Civilian Technicians v. Fed. Labor Relations Auth., 22 F.3d 1150,

1153 (D.C. Cir. 1994) (“The word ‘shall’ generally indicates a command that admits of no

discretion on the part of the person instructed to carry out the directive.”).

What is less clear from the text of the statute is the effect of the Commandant’s issuance

of the terms and conditions. However, the legislative history is instructive:

The arrangement dictated by section 414 of [the Coast Guard and Maritime
Transportation Act of 2006] has precedence in the procedure for granting
hydroelectric licenses under the Federal Power Act[, 16 U.S.C. § 797(e) (2012)].
This process requires the Federal Energy Regulatory Commission to include in
the terms and conditions of its licenses for hydroelectric licenses any conditions
deemed necessary to protect the interests of other agencies. The United States
Supreme Court[, in Escondido Mutual Water Co. v. La Jolla Band of Mission
Indians, 466 U.S. 765 (1984),] determined that such conditions had to be
“reasonable” and the reasonability of the conditions was a matter to be determined
by the courts, not the Commission.

30
152 Cong. Rec. at S6440. In Escondido, the Supreme Court addressed § 4(e) of the Federal

Power Act, 466 U.S. at 772, which provides that licenses such as the hydroelectric facility

license at issue in that case “shall be subject to and contain such conditions as the Secretary [of

the Interior] . . . shall deem necessary for the adequate protection and utilization” of the property,

16 U.S.C. § 797(e). The Supreme Court held that it was “clear enough that while Congress

intended that the Commission would have exclusive authority to issue all licenses, it wanted the

[Secretary of the Interior] to continue to . . . determin[e] what conditions would be included in

the license in order to protect the resources under [his] [] jurisdiction[].” Escondido, 466 U.S. at

775. The District of Columbia Circuit has elaborated that

[i]f Congress had intended Interior to have authority to require prescriptions
independent of the Commission’s licensing process, it could easily have so
specified. By providing instead that Interior’s prescription is to be a FERC
license requirement, Congress implicitly indicated that it would have to be
supported as would any other Commission licensing requirement. The record
before us, then, is no more and no less than what was presented to the
Commission.

Bangor Hydro-Elec. Co. v. Fed. Energy Regulatory Comm’n, 78 F.3d 659, 662 (D.C. Cir. 1996).

And “[i]f the Secretary [of the Interior] concludes that the conditions are necessary” then “the

court is obligated to sustain” the conditions “if they are reasonably related to [the Secretary’s]

goal [of preserving reservations], otherwise consistent with the [Federal Power Act], and

supported by substantial evidence.” Escondido, 466 U.S. at 778. The Circuit has interpreted this

standard of review as akin to arbitrary and capricious review under the APA. See Bangor

Hydro-Elec. Co., 78 F.3d at 663.

Given the similarity between the statutory schemes of § 414 and § 4(e) of the Federal

Power Act, and given also the fact that the legislative history of § 414 specifically relies on the

Supreme Court’s decision in Escondido, it seems inescapable that the Court must review the

31
imposition of the § 414 terms and conditions in the same manner dictated for review of § 4(e) of

the Federal Power Act. In other words, if the Coast Guard has deemed certain terms and

conditions necessary for the Cape Wind project pursuant to § 414, then “the [C]ourt is obligated

to sustain” those terms and conditions “if they are reasonably related to [the Coast Guard’s] goal,

otherwise consistent with the [Shelf Lands Act], and supported by substantial evidence.” 20 See

Escondido, 466 U.S. at 778; see also Bangor Hydro-Elec. Co., 78 F.3d at 662-63.

As to the Coast Guard’s objective, § 414 makes clear that its terms and conditions must

“provide for navigational safety with respect to the proposed lease, easement, or right of-way.”

Pub. L. No. 109-241, 120 Stat. at 540. The terms and conditions imposed by the Coast Guard

address the design, positioning, arrangement, and operation of the Cape Wind project, and

include required specified labeling, mechanisms for shutting down the wind turbine generators,

and placement of safety equipment and mooring attachments on the wind turbine generators for

emergency use. CW66379. The terms and conditions also require Cape Wind, prior to

construction, to provide to the BOEM and the Coast Guard for their review and approval certain

research analyses concerning, and recommended mitigation measures for, the project’s impact on

radar navigation of vessels in and around the project. CW66380. There are also provisions for

breaking ice that might form in and around the project area. CW66381-82. Finally, the terms

and conditions require Cape Wind to report periodically to both the BOEM and the Coast Guard

about navigational safety, and the Coast Guard retains for itself the right to amend the terms and

20
The defendants argue that the similarity between the two statutory schemes calls for the conclusion that the Coast
Guard is not a proper party. See, e.g., Fed. Defs.’ Remain Mem. at 14-17; Int. Def.’s Remain Mem. at 19-23. As
this Circuit has stated, where parties levy a challenge to licenses issued under the Federal Power Act, “FERC is the
appropriate named respondent even if the real defense is to be mounted by [the Department of the] Interior.”
Bangor Hydro-Elec. Co., 78 F.3d at 662 (citing 16 U.S.C. § 825 (b)). The Court thus need not address whether the
Coast Guard is an appropriate party because even if it is not, the plaintiffs’ claims concerning the § 414 terms and
conditions are properly brought against the BOEM, and must therefore be reviewed by the Court in the manner set
forth in Escondido.

32
conditions at any time. CW66380-83. The Court is satisfied that these terms and conditions are

reasonably related to the Coast Guard’s goal to provide for navigational safety.

The Court is also satisfied that the terms and conditions are otherwise consistent with

§ 1337(p) of the Shelf Lands Act. This Act requires, among other things, that any lease granted

pursuant to § 1337(p) be “carried out in a manner that provides for . . . safety” and for

“oversight, inspection, research, monitoring, and enforcement relating to” the lease. 43 U.S.C.

§ 1337(p)(4). The terms and conditions adopted by the Coast Guard provide for oversight,

inspection, research, and monitoring, and also provide several safety measures. And while the

terms and conditions do not explicitly address enforcement of the provisions, the Coast Guard

has not only the right to amend the terms and conditions, but also to order that a wind turbine

generator or a set of generators be shutdown “in instances where the Coast Guard determines that

navigation safety may be impacted if the [wind turbine generator] were to continue to operate.”

CW66376. The Court finds that the Coast Guard’s § 414 terms and conditions are consistent

with the terms of the Shelf Lands Act.

Finally, there is substantial evidence to support the imposition of the Coast Guard’s terms

and conditions. As instructed by the Circuit, the Court assesses the substantial evidence issue by

considering the record that “was presented to” the BOEM. 21 Bangor Hydro-Elec. Co., 78 F.3d at

662 (citing Escondido, 466 U.S. at 778 n.20 (“[T]he court is to sustain the conditions if they are
21
Cape Wind urges the Court to restrict its review “to the BOEM record and not the Coast Guard record.” Int.
Def.’s Remain Mem. at 22-23. However, the federal defendants do not make this argument, and “[t]he general rule
in this Circuit is that ‘[i]ntervenors may only argue issues that have been raised by the principal parties.’” Ass’n of
Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675 (D.C. Cir. 2013) (Silberman, J., concurring) (quoting Nat’l Ass’n
of Regulatory Util. Comm’rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994)). Indeed, the federal defendants rely heavily
on Coast Guard documents in making their arguments, and the plaintiffs agree that the Coast Guard’s documents are
part of the administrative record. Pls.’ Remain Opp’n at 18 & n.3. Presumably, these same documents were or
would have been “presented to” the BOEM, and so in any event they can properly be considered by the Court. See
Bangor Hydro-Elec. Co., 78 F.3d at 662 (denying request to remand the record so that the Department of the Interior
could add material to the record and remarking that “Interior had no excuse for not including any evidence it wished
to rely on[] in the court of appeals, in the record before the Commission. It is simply too late now to shore up its
case”).

33
consistent with law and supported by the evidence presented to the [agency], either by the

Secretary or other interested parties.” (emphasis added in Bangor Hydro-Elec. Co.))). Here, the

BOEM’s final EIS incorporates the Coast Guard’s findings. See, e.g., CW65611-26 (discussing

results of Coast Guard studies on navigational safety); CW66375-414 (Coast Guard responses to

comments on the draft EIS); CW75940-86 (Coast Guard commissioned study of the Cape Wind

project’s impact on radar technology of vessels in and around the project area).

As to the navigational safety studies, the administrative record contains a Revised

Navigational Risk Assessment (“Revised Assessment”), USCG907, which was an update of an

initial risk assessment prepared for Cape Wind at the request of the Coast Guard, USCG916.

The Revised Assessment “includes updated information to address topics requested by the [Coast

Guard]” when the Corps of Engineers was functioning as the lead agency for the Cape Wind

Project. Id. The Revised Assessment

includes descriptions of the Nantucket Sound environment,[22] vessel traffic types
and operating areas, the effects of the proposed Wind Park on navigation, an
analysis of vessel impacts on the [wind turbine generators], historic search and
rescue operations in and around the Wind Park, the effects of the proposed Wind
Park on search and rescue operations, and the effects of the proposed Wind Park
on communications. Various marine interests in Nantucket Sound, including the
[Coast Guard] and the Steam Ship Authority [], and the proposed [wind turbine
generator] vendor (General Electric) [] provided information to assist in the
preparation of the . . . Assessment.

Id.; see also USCG917-61 (discussing observations and data concerning each of the listed

considerations, including data obtained from currently operational offshore wind energy projects

in other bodies of water). The Risk Assessment also includes several mitigation measures to

which Cape Wind agreed in an effort to address any navigational safety issues. USCG961-62.

The executive summary of the Risk Assessment ultimately concludes that “[t]he presence of the

22
Environmental descriptions included the hydrography, currents, waves, and weather of Nantucket Sound.
USCG918-20.

34
Wind Park at Horseshoe Shoal is not expected to create negative impacts to navigational safety.”

USCG913.

In addition to the Risk Assessment, the Coast Guard also considered guidance from the

United Kingdom’s Maritime and Coast Guard Agency, which “assess[ed] the impact on

navigational safety from offshore renewable energy developments.” See USCG409-23.

Included in this guidance were standard design requirements, operational requirements, and

operational procedures for offshore wind energy farms. USCG418-19 (requiring, among other

things, that wind turbine generators be clearly marked, that “[t]hroughout the design process for

a wind farm, assessments and methods for safe shutdown should be established and agreed,” and

that periodic testing of emergency communication and shutdown procedures be conducted). The

Coast Guard adopted many of these recommendations as part of its own “guidance on

information and factors the Coast Guard will consider when reviewing an application for a

permit to build and operate an Offshore Renewable Energy Installation.” USCG1087; see

generally USCG1086-111 (Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).

Given the results of the Risk Assessment, as well as the recommendations in the guidance

from the United Kingdom and the Coast Guard’s own guidance, it cannot be said that the terms

and conditions deemed necessary by the Coast Guard pursuant to its § 414 obligation were

unreasonable. Rather, the information available shows that there is a “rational connection

between the facts” concerning navigational safety and “the choice made” as to the terms and

conditions adopted by the Coast Guard for the Cape Wind project. See Bangor Hydro-Elec. Co.,

78 F.3d at 663 n.3. The Court therefore finds that the terms and conditions chosen are supported

by substantial evidence.

35
The plaintiffs do not confine their objections to the § 414 terms and conditions to the

three prongs of the Escondido analysis, presumably because they do not believe that the analysis

should apply here, and instead lodge attacks on other aspects of the terms and conditions. First,

the plaintiffs contend that the terms and conditions “are little more than vague generalities and a

promise to ensure navigational safety later.” Pls.’ Remain Mem. at 18. The Court disagrees.

While it is true that certain terms and conditions require future action or studies, other terms and

conditions impose mandatory design, positional, and operational requirements. See, e.g.,

CW66379 (providing that “each individual [wind turbine generator] shall be marked with private

aids to navigation in accordance with” specified guidelines) (emphasis added); id. (“All [wind

turbine generator] rotors (blade assemblies) shall be equipped with control mechanisms that can

be operated from the control center of the [Nantucket Sound Wind Farm].”) (emphasis added);

id. (“Safety lines, mooring attachments (for securing vessels) and access ladders for use in

emergencies shall be placed on each [wind turbine generator].”) (emphasis added). Moreover,

provisions for future action are actually consistent with the terms of the Shelf Lands Act. See 43

U.S.C. § 1337(p)(4)(L) (requiring that renewable energy activities be “carried out in a manner

that provides for . . . oversight, inspection, research, monitoring, and enforcement relating to a

lease . . . granted” under the Shelf Lands Act). Indeed, it strikes the Court that it would make

little sense for the Coast Guard and the BOEM to approve the Cape Wind project only to

abandon the possibility of future oversight, research, and monitoring of the impacts that the

project might have on navigational safety. Perhaps most importantly, though, a great deal of

deference is owed to the “Coast Guard’s expertise . . . in maritime safety.” Collins v. Nat’l

Transp. Safety Bd., 351 F.3d 1246, 1253 (D.C. Cir. 2003); see also Cassidy v. Chertoff, 471 F.3d

67, 84 (2d Cir. 2006) (“Expert determinations by the Coast Guard . . . which are based on an

36
explicit Congressional delegation of legislative authority . . . are entitled to significant

deference.”). Accordingly, because the Coast Guard deemed provisions concerning future action

to be appropriate, the Court must reject this challenge to the terms and conditions.

The plaintiffs next object to the Coast Guard’s interpretation that § 414 requires the

issuance of terms and conditions only for project proposals, see CW66378, and not for each

NEPA alternative to the proposed action. Pls.’ Remain Mem. at 23. The plaintiffs rely on the

statutory language of § 414, which states:

[T]he Commandant of the Coast Guard shall specify the reasonable terms and
conditions the Commandant determines to be necessary to provide for
navigational safety with respect to the proposed lease, easement, or right-of-way
and each alternative to the proposed lease, easement, or right-of-way considered
by the Secretary.

Pub. L. No. 109-241, 120 Stat. at 540 (emphasis added); see Pls.’ Remain Mem. at 23-24. As

noted above, the Court begins its analysis with the language of the statute. In this instance, while

it is clear that the Commandant is required to specify terms and conditions for the project

proposal, it is not clear, as the plaintiffs contend, that the definition of “alternative” as intended

in § 414 has the same meaning that the word “alternative” has in the NEPA. See 40 CFR §

1502.14. To be sure, the terms and conditions must be specified “not later than 60 days before

the date established . . . for the publication of a draft environmental impact statement,” Pub. L.

No. 109-241, 120 Stat. at 540, but the statute does not otherwise incorporate or reference the

NEPA. “Alternative” as used in the NEPA context is a term of art addressed in that statute’s

implementing regulations. See 40 C.F.R. § 1502.14. If Congress had intended to direct the

Commandant to consider specifically NEPA alternatives, it could easily and explicitly have

drafted § 414 to refer to the applicable sections of the NEPA or its implementing regulations, but

it did not. Furthermore, it would be odd to require the Coast Guard to provide terms and

37
conditions for each NEPA alternative, given that several alternatives were jettisoned without

detailed consideration for various reasons. 23 Although the plaintiffs’ proposed reading of the

statute is plausible, the Court is required to defer to an agency’s permissible interpretation of an

ambiguous statute. Bluewater Network, 372 F.3d at 410. Here, the Coast Guard interpreted

§ 414 to require only the issuance of terms and conditions for alternative proposals, as opposed

to doing the same for each NEPA alternative to a proposal. Because the statute does not

specifically reference NEPA alternatives, the Court finds that the Coast Guard’s interpretation is

not impermissible.

Because the Coast Guard has deemed the § 414 terms and conditions necessary to

provide for navigational safety in and around the Cape Wind project, CW66389, and because the

terms and conditions “reasonably relate[] to [the Coast Guard’s] goal, [are] otherwise consistent

with the [Shelf Lands Act], and [are] supported by substantial evidence,” see Escondido, 466

U.S. at 778, the Court must sustain the terms and conditions and dismiss the plaintiffs’ claims

against the Coast Guard that allege violations of the Coast Guard and Maritime Transportation

Act of 2006. Accordingly, the Court grants summary judgment to the defendants on the

plaintiffs’ § 414 claims.

B. Whether the BOEM Violated the Shelf Lands Act

1. The BOEM’s Reliance on the Coast Guard’s Navigational Safety Findings

The plaintiffs argue that the BOEM violated both the Shelf Lands Act and the NEPA by

relying on the Coast Guard’s navigational safety analyses. Pls.’ Remain Mem. at 45. With

respect to renewable energy projects like the Cape Wind project, the Shelf Lands Act requires

the Secretary to

23
The alternatives are discussed in detail below in the context of the Court’s evaluation of the plaintiffs’ NEPA
claims.

38
ensure that [the] activity . . . is carried out in a manner that provides for--
(A) safety;
(B) protection of the environment;
(C) prevention of waste;
(D) conservation of the natural resources of the outer Continental Shelf;
(E) coordination with relevant Federal agencies;
(F) protection of national security interests of the United States;
(G) protection of correlative rights in the outer Continental Shelf;
(H) a fair return to the United States for any lease, easement, or right-of-way
under this subsection;
(I) prevention of interference with reasonable uses (as determined by the
Secretary) of the exclusive economic zone, the high seas, and the territorial
seas;
(J) consideration of--
(i) the location of, and any schedule relating to, a lease, easement, or right-of-
way for an area of the outer Continental Shelf; and
(ii) any other use of the sea or seabed, including use for a fishery, a sealane, a
potential site of a deepwater port, or navigation;
(K) public notice and comment on any proposal submitted for a lease, easement,
or right-of-way under this subsection; and
(L) oversight, inspection, research, monitoring, and enforcement relating to a
lease, easement, or right-of-way under this subsection.

43 U.S.C. § 1337(p)(4). The plain language of the Shelf Lands Act therefore suggests that it

would have been unlawful for the BOEM to rely on the Coast Guard’s findings if those findings

did not further the Secretary of the Interior’s obligation to ensure that the Cape Wind project “is

carried out in a manner that provides for safety.” Id.

As to the findings themselves, the plaintiffs devote a substantial portion of their

memoranda to attacking the Coast Guard’s evaluation of the navigational safety impacts

resulting from the Cape Wind project as arbitrary and capricious decisionmaking. Pls.’ Remain

Mem. at 29-45; Pls.’ Remain Opp’n at 21-31. First, the plaintiffs argue that the Coast Guard’s

“assessment of navigational impacts is incoherent and contradicted by Coast Guard personnel.”

Pls.’ Remain Mem. at 29; see also id. at 30-33. They challenge the Coast Guard’s conclusion in

a November 2008 safety assessment letter that the Cape Wind project “‘will (1) have a moderate

impact on navigation safety, and (2) have a negligible adverse impact on Coast Guard

39
missions.’” Id. at 30 (quoting CW66389); see also id. at 31-33 (addressing the November 2008

letter’s discussion of impacts on radar communications, the spacing of the wind turbines,

inclement weather, and Coast Guard search and rescue missions). At bottom, the plaintiffs argue

that the BOEM could not lawfully rely on the Coast Guard’s findings because those findings

represent arbitrary and capricious decisionmaking.

Under the APA, only “final agency action” is reviewable by the Court. See 5 U.S.C. §

704. The Supreme Court has stated that,

[a]s a general matter, two conditions must be satisfied for agency action to be
“final”: First, the action must mark the “consummation” of the agency’s
decisionmaking process—it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which “rights or obligations have
been determined,” or from which “legal consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted). Here, it cannot be

said that the Coast Guard engaged in arbitrary and capricious decisionmaking, because while the

BOEM incorporated the Coast Guards’ navigational safety findings into the final EIS, those

findings did not, in and of themselves, “mark the ‘consummation’ of the [Coast Guard’s]

decisionmaking process,” nor did those findings determine the “rights or obligations” of any

party or result in “legal consequences.” Bennett, 520 U.S. at 177-78. Rather, the Coast Guard’s

findings were simply meant to inform the BOEM of the impact that the Cape Wind project

would have on navigational safety in and around the Nantucket Sound.

Even if the Coast Guard’s findings do constitute reviewable final agency action, as this

Court recently reiterated:

“[t]he ‘arbitrary and capricious’ standard of review as set forth in the APA is
highly deferential,” and the Court must “presume the validity of agency action.”
Am. Horse Prot. Ass’n v. Yeutter, 917 F.2d 594, 596 (D.C. Cir. 1990). Although
the “court is not to substitute its judgment for that of the agency[,] . . . the agency
must examine the relevant data and articulate a satisfactory explanation for its
action including a rational connection between the facts found and the choice

40
made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983) (citations and quotation marks omitted). And where, as here, a
court is reviewing an agency’s evaluation of “‘scientific data within its technical
expertise,’” the arbitrary and capricious standard of review is “‘extreme[ly]
deferential.’” Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1289 (D.C. Cir.
2004) (citation omitted). This is because courts “review scientific judgments of
the agency ‘not as the chemist, biologist, or statistician that we are qualified
neither by training nor experience to be, but as a reviewing court exercising our
narrowly defined duty of holding agencies to certain minimal standards of
rationality.’” Troy Corp. v. Browner, 120 F.3d 277, 283 (D.C. Cir. 1997).

Styrene Info. & Research Ctr., Inc. v. Sebelius, 944 F. Supp. 2d 71, 87 (D.D.C. 2013) (footnote

omitted). And, in the matter currently before the Court, a great deal of deference is owed to the

“Coast Guard’s expertise . . . in maritime safety.” Collins, 351 F.3d at 1253; see also Cassidy,

471 F.3d at 84 (“Expert determinations by the Coast Guard . . . which are based on an explicit

Congressional delegation of legislative authority . . . are entitled to significant deference.”). In

evaluating whether the Coast Guard has engaged in arbitrary or capricious decisionmaking, the

Court’s role is to determine whether the record demonstrates that the agency has considered the

“relevant data and articulate[d] a satisfactory explanation for its action,” and whether the

agency’s choice reflects “a rational connection between the facts found and the choice made.”

Bluewater Network, 370 F.3d at 11.

Although the plaintiffs fault the Coast Guard for issuing the November 2008 safety

assessment letter prior to the completion of radar studies, the letter itself acknowledges that the

impact on radars “remains outstanding.” CW66389. The letter also indicates the further steps

the Coast Guard was taking in order to better understand the impacts on radars, and stated that

“[t]he Coast Guard will review the study and provide any additional information at that time and

requests that the information provided be addressed in the Record of Decision.” Id. Contrary to

what the plaintiffs indicate, the November 2008 letter does not state that the project “will not

make navigation within the Project site more difficult,” Pls.’ Remain Mem. at 31, but instead

41
clearly states that the Coast Guard expected “a moderate impact on navigation safety,”

CW66389. Those impacts, and mitigation measures to lessen the impacts, are discussed in

attachments to the letter. See, e.g., CW66407-08. Relying on the Risk Assessment discussed

above, among other factors, the Coast Guard concluded that “navigation is capable of being done

safely.” CW66408. As far as concerns about inclement weather, the plaintiffs emphasize the

Coast Guard’s suggestion that smaller vessels will be “less prevalent” in poor weather, Pls.’

Remain Mem. at 32, and ignore the Coast Guard’s inclusion of “vessels of any size” as also

being “less prevalent” in such conditions, CW66406. Indeed, the Coast Guard considers other

weather-related factors, both in the Risk Assessment and in the attachments to the November

2008 letter. CW66406-07. Finally, the plaintiffs’ contention that the Coast Guard did not

adequately consider the effects on Coast Guard search and rescue operations is contradicted by

the record. The plaintiffs focus, Pls.’ Remain Mem. at 33, on the “four of 50 [search and rescue]

cases (8%) [that] involved the use of an aircraft for rescue,” without noting that “in only one case

did the aircraft actually effect a rescue,” CW66411. The Coast Guard concluded based on the

small number of actual rescues affected and other factors that search and rescue efforts would

not be adversely hindered. In short, there is substantial evidence in the record that the Coast

Guard considered and addressed the concerns that the plaintiffs raised with respect to the

November 2008 safety assessment letter, and thus, the Court finds that the Coast Guard did not

engage in arbitrary and capricious decisionmaking through the issuance of the letter.

Next, the plaintiffs contend that “the Coast Guard improperly dismissed the importance

of marine radar to navigational safety.” Pls.’ Remain Mem. at 29; see also id. at 34-41; Pls.’

Remain Opp’n at 42-45. In making this argument, they focus primarily on a report authored by

the Technology Service Corporation analyzing the effect of the Cape Wind project, which was

42
attached as part of Appendix M to the final EIS. See CW75940-86. In advancing their

arguments, the plaintiffs cherry pick quotes from the report, and invite the Court to examine

maps, images, and videos depicting various radar functioning related scenarios. See, e.g., Pls.’

Remain Opp’n at 34-35. As an initial matter, it would be improper for the Court to delve into

and analyze the scientific underpinnings of the report. But even if it could, the Coast Guard’s

findings, which are also contained in Appendix M, see CW75970-86, acknowledge and address

each of the points raised by the plaintiffs concerning the ability of radar operators to detect

potential dangers, compare Pls.’ Remain Mem. at 34-41 (raising concerns about false targets,

radar reflections, and impacts on Automatic Radar Plotting Aid systems), with CW75976-86

(discussing impacts on Automatic Radar Plotting Aid systems, false targets, and radar

reflections). And while the plaintiffs additionally attempt to undermine the Coast Guard’s

findings by pointing to alterations made to the Technology Service Corporation’s report and the

Coast Guard’s alleged failure to implement recommendations put forth by various individuals,

Pls.’ Remain Opp’n at 42-43, it is axiomatic that “the reasonableness of [an] agency’s action is

judged in accordance with its stated reasons” under the arbitrary and capricious standard of

review, and “the actual subjective motivation of decisionmakers is immaterial as a matter of

law—unless there is a showing of bad faith or improper behavior,” In re Subpoena Duces

Tecum, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998). The Court cannot discern that the Coast

Guard engaged in improper behavior or acted in bad faith, and the plaintiffs have provided no

basis for the Court reaching that conclusion. The plaintiffs’ disagreement with the ultimate

findings made by the Coast Guard is not reason enough for the Court to deem the agency’s

decisionmaking arbitrary or capricious. Lastly, although the plaintiffs challenge, Pls.’ Remain

Mem. at 37-41, the Coast Guard’s finding that the impact on navigational safety would be

43
“moderate” with the implementation of the stated mitigation measures, CW75984-86, the Court

is not in a position to evaluate the adequacy of those measures. As the Court has already held,

there is substantial evidence to support the Coast Guard’s § 414 terms and conditions, and the

mitigation measures similarly enjoy adequate support in the administrative record. See, e.g.,

USCG 907-62 (analyzing navigational safety and discussing mitigation measures with respect to

both the Cape Wind project and offshore wind farms in other parts of the world); USCG417

(United Kingdom’s Maritime and Coast Guard Agency’s suggested “safety and mitigation

measures recommended for [offshore renewable energy installations] during construction,

operation and decommissioning”); USCG1111 (setting forth “example risk mitigation strategies”

adopted as part of the Coast Guard’s Navigation and Vessel Inspection Circular No. 02-07).

Accordingly, because there is a rational connection between the facts found and the decision

made, it was not arbitrary and capricious for the Coast Guard to find that the stated mitigation

measures would lessen the impact on navigational safety so as to render the impact moderate.

Finally, the plaintiffs argue that “the Coast Guard’s finding that buffer zones are

unnecessary is contradicted by the record and by Coast Guard Policy and is fundamentally

indefensible from a safety perspective,” thus resulting in arbitrary and capricious

decisionmaking. Pls.’ Remain Mem. at 29, 41-45; Pls.’ Remain Opp’n at 43-45. They contend

in essence that “the Coast Guard was required to address substantial questions raised by experts

regarding how a buffer zone would affect navigational safety in the Sound, not merely that it was

not necessary.” Pls.’ Remain Opp’n at 44. To the extent that the plaintiffs rely on experts’

comments that post-date the issuance of the Coast Guard’s findings, see id. at 43-44 (citing

comments from 2009 and 2012), their reliance on the comments is misplaced because “[i]t is a

widely accepted principle of administrative law that the courts base their review of an agency’s

44
actions on the materials that were before the agency at the time its decision was made,” IMS,

P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). The remainder of the plaintiffs’ arguments

fail for the same reasons stated above, namely, that the Coast Guard’s finding that a buffer zone

was unnecessary is adequately supported by the record, see, e.g., CW75983 (analyzing the

Technology Services Corporation report); CW75986 (finding that mitigation measures obviate

the need for buffer zones), and significant deference is owed to those findings, Menkes v. DHS,

637 F.3d 319, 332 (D.C. Cir. 2011) (“[T]he potential ramifications of the agency’s decision

confirm that these are precisely the sort of complex, interstitial questions that the Coast Guard

deserves deference to address.”); Ill. Commerce Comm’n v. Interstate Commerce Comm’n, 749

F.2d 875, 882 n.10 (D.C. Cir. 1984) (“Because this conclusion required the agency to exercise its

expert knowledge of . . . an area in which the agency possesses a comparative advantage vis-à-

vis the courts, this court should accord substantial deference to the agency’s interpretation.”); see

also Collins, 351 F.3d at 1253; Cassidy, 471 F.3d at 84. While the record reflects debate within

the Coast Guard about the potential of a buffer zone, the Coast Guard’s stated reasons for not

including a buffer zone, which are what the Court must consider, In re Subpoena Duces Tecum,

156 F.3d at 1279, are adequately supported in the record.

In sum, the Coast Guard’s findings provide a rational explanation for the conclusion that

navigational safety will be only moderately impacted so long as the stated mitigation measures

are implemented, and the explanation is adequately supported by the administrative record. This

is all that the APA requires, and the plaintiffs’ charge that the Coast Guard’s findings are

arbitrary and capricious therefore fails. By the same token, the plaintiffs’ claim that the BOEM

violated the Shelf Lands Act by relying on the Coast Guard’s findings must also fail.

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2. The BOEM’s Approval of the Construction and Operations Plan Without
First Obtaining Geotechnical and Geophysical Studies

The plaintiffs argue that the BOEM violated the Shelf Lands Act by approving Cape

Wind’s Construction and Operations Plan without first receiving certain geotechnical and

geophysical studies from Cape Wind. 24 Pls.’ Remain Mem. at 47-54; Pls.’ Remain Opp’n at 63-

66. The Court disagrees.

The implementing regulations of the Shelf Lands Act direct parties seeking to conduct

renewable energy projects to submit, in addition to other documentation, a Construction and

Operations Plan that includes “the results of [certain] . . . surveys for the proposed site(s) of [the]

facility(ies).” 30 C.F.R. § 585.626(a). Specifically, the Construction and Operations Plan must

include the results of shallow hazards, geographical, biological, geotechnical, and archaeological

surveys, along with supporting data. Id. (detailing information required for each type of survey).

Here, there is no dispute that the BOEM wanted Cape Wind to conduct additional and more

detailed surveys than what it had provided to the agency during the review process. See, e.g.,

Pls.’ Remain Mem. at 48-52; Fed. Defs.’ Remain Mem. at 49-53; Int. Def.’s Remain Mem. at 52.

And the record makes clear that Cape Wind represented to the BOEM that additional financing

was required prior to conducting the surveys, see CW147710; CW235267, and that such

financing would be unavailable absent approval of its Construction and Operations Plan,

CW147710. The question thus centers on whether the BOEM appropriately approved a

departure from its regulations.

BOEM’s regulations provide for a departure from the general provisions of the

regulations in certain circumstances, see 30 C.F.R. § 585.103(a), but

24
The plaintiffs’ NEPA and NHPA arguments concerning these data are addressed later in this memorandum
opinion.

46
(b) [a]ny departure approved under this section and its rationale must:

(1) [b]e consistent with [43 U.S.C. § 1337(p)] . . . ;

(2) [p]rotect the environment and the public health and safety to the same
degree as if there was no approved departure from the regulations;

(3) [n]ot impair the rights of third parties; and

(4) [b]e documented in writing.

30 C.F.R. § 585.103(b) (emphasis added).

Under 30 C.F.R. § 585.103(a), approval of a departure is appropriate to, among other

things, “[f]acilitate the appropriate activities on a lease or grant under this part.” Id.

§ 585.103(a)(1). The plaintiffs argue unconvincingly that obtaining financing “is not an ‘activity

on a lease.’” Pls.’ Remain Mem. at 53 (quoting 30 C.F.R. § 585.103(a)(1)). The regulation,

however, refers not to “activities on a lease” but to the facilitation of such activities. 30 C.F.R.

§ 585.103(a)(1). Certainly, financing geophysical and geotechnical surveys is consistent with

the facilitation of “appropriate activities on a lease.” And the plaintiffs’ concern that granting a

departure for financial reasons equates to providing “no meaningful limit on what [the] BOEM

can approve without information [the] BOEM itself has determined to be required” under the

Shelf Lands Act, Pls.’ Remain Opp’n at 65, fails to take into account the substantive

requirements of 30 C.F.R. § 585.103(b), which must all be satisfied in order to warrant a lawful

departure.

Here, the requirements of 30 C.F.R. § 585.103(b) have been satisfied. Conducting the

surveys after approval of Cape Winds’ construction and operations plan is consistent with the

Shelf Lands Act’s requirement that the project be carried out in a manner that provides for

“safety” and for “protection of the environment.” See 43 U.S.C. § 1337(p)(4); 30 C.F.R.

§ 585.103(b)(1). In arguing to the contrary, the plaintiffs seem to miss that the Secretary’s

47
overall obligation under 43 U.S.C. § 1337(p)(4) to provide for safety is an obligation that applies

not only to approving individual steps of the process, such as the timing of the collection of

survey data, but rather to the entirety of the leasing process. And the plaintiffs’ suggestion that

the departure here is inconsistent with 43 U.S.C. § 1337(p) because it was not subject to notice

and comment, Pls.’ Remain Opp’n at 66, relies on a selective reading of the Shelf Lands Act,

which requires “public notice and comment on any proposal submitted for a lease,” 43 U.S.C. §

1337(p)(4)(K) (emphasis added). And a departure is not a lease proposal.

As to the remaining requirements, the Court does not find it inappropriate for the BOEM

to allow collection of data after approving the Construction and Operations Plan, given that the

data must still be collected and analyzed prior to commencing construction or otherwise

disturbing the seafloor, see, e.g., CW241409, and thus, the departure “[p]rotect[s] the

environment and the public health and safety to the same degree as if there was no approved

departure from the regulations,” 30 C.F.R. § 585.103(b)(2). The plaintiffs offer no argument that

the departure will affect the rights of any third parties, id. § 585.103(b)(3), and the Court discerns

none. Finally, the “rationale,” id. § 585.103(b)(4), for the departure is documented in writing,

see CW241409, and the departure itself is memorialized in the 2011 ROD, see CW119701-04,

and the lease itself, see CW119300-03. Although the BOEM could have more explicitly drawn a

connection between the departure and its rationale for granting it, the fact remains that both are

documented in writing in the administrative record. The regulation requires nothing more.

Accordingly, the Court finds that the BOEM complied with the Shelf Lands Act regulations

concerning the approval of departures from those regulations, and therefore grants summary

judgment to the defendants on the plaintiffs’ Shelf Lands Act claims.

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C. Whether the Federal Defendants Violated the ESA

1. The Plaintiffs’ Claims Against the FWS

The plaintiffs contend that the FWS violated the ESA by improperly delegating to Cape

Wind and to the BOEM decisions concerning certain reasonable and prudent minimization

measures. Pls.’ ESA/MBTA Mem. at 20-29; Pls.’ ESA/MBTA Opp’n at 2-19. Specifically, they

argue that “the statutory language” of the ESA “plainly imposes an unequivocal duty on [the]

FWS to determine what [reasonable and prudent measures] are ‘necessary or appropriate to

minimize’ an action’s impact on listed species.” Pls.’ ESA/MBTA Mem. at 21 (quoting 16

U.S.C. § 1536(b)(4)). They maintain that the statute places that duty on the FWS to the

exclusion of any other entities. Id. The Court agrees.

In determining whether the FWS complied with the statutory mandates of the ESA, the

Court must again engage in the two-step inquiry set forth in Chevron, as discussed above.

Turning to the first step of the Chevron analysis, there is no question that the FWS has been

tasked with administering the ESA for certain species, 50 C.F.R. § 402.01(b), and that the Act

requires the FWS to issue an incidental take statement where it finds that agency action will

adversely impact a listed species, id. § 402.14(i). Moreover, it is clear that the FWS is required

to “[s]pecif[y] those reasonable and prudent measures that the Director considers necessary or

appropriate to minimize such impact.” Id. § 402.14(i)(1)(ii). Neither the ESA nor its

implementing regulations explicitly state whether the FWS is required to render independent

determinations concerning reasonable and prudent minimization measures included in incidental

take statements. The ESA and its regulations do state, however, that incidental take statements

must include “those reasonable and prudent measures that the Director [of] [the Fish and

Wildlife Service] considers necessary or appropriate.” Id. § 402.14(i)(1) (emphasis added); see

49
also 16 U.S.C. § 1536(b)(4)(ii) (requiring the Secretary to “specif[y] those reasonable and

prudent measures that the Secretary considers necessary or appropriate”) (emphasis added).

This Circuit construed similar statutory and regulatory language in Gerber v. Norton, 294

F.3d 173 (D.C. Cir. 2002). In Gerber, the Circuit addressed Section 10 of the ESA, 294 F.3d at

175-76, which provides that the FWS shall issue a permit for a taking “[i]f the [FWS] finds, after

opportunity for public comment, . . . that the applicant will, to the maximum extent practicable,

minimize and mitigate the impacts of such taking,” 16 U.S.C. § 1539(a)(2)(B)(ii). Gerber

considered whether “the issuance of [an] incidental take permit violated [S]ection 10 of the

ESA” where the FWS failed to make an independent determination concerning the applicant’s

mitigation of the impacts of the taking. 294 F.3d at 184-85. In that case, the FWS had

considered a “Reduced Impact Alternative” to the developer’s proposed project, but ultimately

decided against the alternative. Id. at 185. However, the Circuit noted that there was “no

evidence in the [administrative] record that the [FWS] ever made such a finding[, but the FWS]

did repeatedly observe that the developer had rejected the alternative.” Id. (emphasis in

original). “And [the FWS] noted that [the developer] did so out of concern that changing the

design would entail additional costs and delay the process of obtaining approval from” local

government entities. Id. In holding that the FWS had violated Section 10 of the ESA, the

Circuit stated that “[w]hen a statute requires an agency to make a finding as a prerequisite to

action, it must do so.” Id. at 185-86.

The defendants argue that Gerber is inapposite, because it construed a different section of

the ESA, involved different required findings, and did not involve another federal agency. See

Fed. Defs.’ ESA/MBTA Mem. at 27-28; Int. Def.’s ESA/MBTA Mem. at 23 n.13. These

arguments are unavailing. First, it is well established as a “normal rule of statutory construction

50
that identical words used in different parts of the same act are intended to have the same

meaning.” Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (citations and internal quotation marks

omitted). Here, both Sections 7 and 10 of the ESA refer to considerations and findings that “the

Secretary shall” make or reach. 16 U.S.C. § 1536(b)(4)(ii) (emphasis added); 16 U.S.C. §

1539(a)(2)(B). Moreover, neither the types of findings or considerations required in Sections 7

and 10 of the ESA nor the nature of the Section 7 consultation process have any bearing on the

fact that the FWS is the entity that must make the ultimate determination in both instances.

Here, the FWS’s incidental take statement discusses a potential “operational adjustment”

as a reasonable and prudent measure. FWS76. Specifically, the incidental take statement notes

that

[t]he [FWS] also considered a reasonable and prudent measure, an operational
adjustment to the wind facility that would require the temporary and seasonal shut
down of the [wind turbine generators] through the feathering of the rotors.
Feathering of the rotors causes them to face the wind and stop spinning, and
would reduce the risk of collision by roseate terns and, to a limited extent,
migrating piping plovers transiting the Horseshoe Shoal project area.

FWS76-77 (emphasis added). Thus here, as in Gerber, the FWS found that a particular

mitigation measure would reduce take. However, also as in Gerber, the FWS went on to discard

the proposed reasonable and prudent measure because “it was determined by [the BOEM] and

[Cape Wind] . . . to not be reasonable and prudent based on” the failure to “meet the [reasonable

and prudent measure] regulatory definition as a ‘reasonable measure’ as it modifies the scope of

[a] project in a manner that is adverse to the project’s stated purpose and need.” FWS77 (first

emphasis added). The FWS stated again that the “[BOEM] considers that this may involve more

than a ‘minor change’” under 50 C.F.R. § 402.14(j)(2). Id. (emphasis added). The remainder of

the FWS’s explanation for casting away the feathering measure is couched in phrases beginning

with statements like “[the BOEM] has also determined” and “[the BOEM] indicates.” Id.

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However, nowhere in the explanation is there an indication that the FWS made an independent

determination. This is unacceptable. While it is certainly possible that the feathering measure

would not comport with 50 C.F.R. § 402.14(i)(2), the ESA and its implementing regulations

require the FWS to make an independent determination. Because it seemingly did not do so, the

Court must grant summary judgment to the plaintiffs on their ESA claims against the FWS.

The defendants try to avoid this conclusion by pointing to places in the administrative

record where FWS personnel addressed the BOEM’s reasons for rejecting the feathering

reasonable and prudent measure. See Fed Defs.’ ESA/MBTA Mem. at 22 (citing FWS215;

FWS220). While it might be true that the FWS grappled with the issues raised by the BOEM, it

is not clear from the reasonable and prudent measures issued by the FWS that its ultimate

decision was based on its independent determination, or whether the FWS merely deferred to

determinations made by the BOEM and Cape Wind. As noted before, the reasonable and

prudent measures begin by observing that the proposed operational adjustment would reduce

take, at least to some extent. The FWS then proceeds to rely exclusively on BOEM and Cape

Wind determinations as the basis for not including the operational adjustment. Without any

indication that the FWS in fact made an independent determination about whether the adjustment

was appropriate, the Court cannot infer that such a determination ultimately factored into the

FWS’s decision.

The defendants also argue that language elsewhere in the statute and regulations suggests

that the FWS can and indeed should consult other agencies or entities in making its

determination. See, e.g., Fed. Defs.’ ESA/MBTA Mem. at 19-20 (citing 16 U.S.C. § 1536(a)(2)

and 50 C.F.R. § 402.14(g)(8)); Int. Def.’s ESA/MBTA Mem. at 21-23 (citing the same statutory

and regulatory provisions). While these provisions undoubtedly direct the FWS to consult and

52
work with other agencies and entities in carrying out its Section 7 duties, they do not in and of

themselves absolve the FWS of its responsibility to make an independent determination, albeit

after consideration of its consultations. And the Joint Consultation Handbook is not inconsistent

with this requirement. As the federal defendants point out, the Joint Consultation Handbook

directs that “[r]easonable and prudent measures and terms and conditions should be developed in

coordination with the action agency and the applicant,” FWS31117, and urges the FWS to

consult actively with action agencies based on the following understanding:

Section 7 consultation is a cooperative process. The [FWS] do[es] not have all
the answers. Actively seek the views of the action agency and its designated
representatives, and involve them in your opinion preparation, especially in the
development of reasonable and prudent alternatives, reasonable and prudent
measures, terms and conditions to minimize the impacts of incidental take, and
conservation recommendations.

FWS31010-11. While collaboration is encouraged, the Joint Consultation Handbook does not

support the notion that the FWS should have deferred to the BOEM or Cape Wind when

discarding the operational adjustment at issue without at least making clear that it was doing so

based on its own independent determination of the issue. This is especially true given the

explicit finding that implementing the operational adjustment as a reasonable and prudent

measure would, at least to some extent, decrease the take of roseate terns and piping plovers.

See FWS76. The ESA required the FWS to independently make that determination, and “it must

do so.” Gerber, 294 F.3d at 185.

2. The Plaintiffs’ Claims Against the National Marine and Fisheries Service

The plaintiffs also contend that the NMFS violated the APA and the ESA by erroneously

concluding in its biological opinion that the Cape Wind project is not likely to adversely affect

right whales, failing to establish terms and conditions for the incidental take of right whales, and

failing to analyze the effect of preconstruction geological surveys on listed sea turtles. Pls.’

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ESA/MBTA Mem. at 34-45; Pls.’ ESA/MBTA Opp’n at 29-44. The defendants argue that the

considerations that went into and the resulting conclusions of the NMFS biological opinion

complied with the ESA and the APA. Fed. Defs.’ ESA/MBTA Mem. at 39-45; Fed. Defs.’

ESA/MBTA Reply at 19-25; Int. Defs.’ ESA/MBTA Mem. at 35-45; Int. Defs.’ ESA/MBTA

Reply at 17-25.

a. Whether the NMFS’s Biological Opinion is Arbitrary and Capricious

As the Supreme Court recently reiterated,

[r]eview under the arbitrary and capricious standard is deferential; [courts] will
not vacate an agency’s decision unless it has relied on factors which Congress had
not intended it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to the evidenc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2658384. Public record. Not legal advice.