Petition for Writ of Certiorari — Simon V. Kinsella, Petitioner v. Bureau of Ocean Energy Management, et al.

Supreme Court briefJun 1, 2023

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JUN 01 2023

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3n ttje Supreme Court of tlje Unitcii

SIMON V. KINSELLA,

Petitioner,

U.S. BUREAU OF OCEAN ENERGY

MANAGEMENT, ET AL.,

and

SOUTH FORK WIND, LLC,

Respondents.

On Petition for a Writ of Certiorari

To The United States Court of Appeals

For The District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Simon V. Kinsella

P.O. Box 792

Wainscott, NY 11975

Tel: (631) 903-9154

Si@oswSouthFork.Info

Legal Printers LLC • Washington, DC • 202-747-2400 • legalprinters.com

QUESTIONS PRESENTED

The U.S. Bureau of Ocean Energy Management

(BOEM) knowingly falsified its review of an offshore

wind farm, concealing contamination harmful to

human health, the project’s cost ($2 billion),

procurement manipulation, and other material facts.

It approved the project based on its own deceit. BOEM

has neither answered the complaint (7/20/2022) or the

amended complaint (11/2/2022) nor responded to

allegations of fraud. The court of appeals admitted the

district court did not consider or allow argument on

fraud claims (or parties named under those claims)

before transferring the case. The transferee court did

not recognize claims of fraud (or parties) before,

without power, denying injunctive relief. Petitioner

pro se first learned of that denial three weeks later.

1. Whether the Fifth Amendment requires that

defendants answer allegations against them?

2. Whether fraud by a federal regulatory agency

sends the wrong message to developers, regulators,

and the public, and is the harm that flows from that

message irreparable?

3. Whether construction, the plans for which the

developer secured approval via fraudulent means, is

a valid contributing economic injury when weighing

the equities in contemplation of injunctive relief

seeking to prevent that construction?

3. Whether 28 U.S.C. § 1404 requires consideration

of the convenience of parties and witnesses before

transferring a case three hundred miles from three

federal agency defendants’ offices, nine officials

(defendants in fraud claims), potential witnesses, and

seventeen causes of action to an inconvenient forum

prejudicial to claims filed in a permissible venue?

(i)

PARTIES TO PROCEEDINGS

Petitioner who was the plaintiff-petitioner is

Simon V. Kinsella, pro se.

Respondents that were defendants-respondents

are U.S. Bureau of Ocean Energy Management

(BOEM); and in their official capacities working for

BOEM: Director Elizabeth Klein; Chief Michelle

Morin, Environment Branch for Renewable Energy;

Program Manager James F. Bennett, Office of

Renewable Energy Programs; Environmental

Studies Chief Mary Boatman, Office of Renewable

Energy Programs; Economist Emma Chaiken;

Economist Mark Jensen; Biologist Brian Hooker;

and Jennifer Draher; and Secretary of the Interior

Deb Haaland, U.S. Department of the Interior

(DOI); Principal Deputy Assistant Secretary Laura

Daniels-Davis, Land and Mineral Management;

and Administrator Michael S. Regan, U.S. Environ

mental Protection Agency (EPA).

Respondent that was intervenor-defendantrespondent is South Fork Wind LLC (SFW)

(formerly Deepwater Wind South Fork LLC).

Note: BOEM Director was Amanda Lefton when

filing the complaint on July 20, 2022, but Ms. Lefton

resigned effective January 19, 2023.

(ii)

RELATED CASES

The Supreme Court of the United States:

Simon Kinsella, Applicant v. Bureau of Ocean

Energy Management, et al., (22A1097), Application

for injunctive relief and a stay, submitted to The

Chief Justice (dated June 12, 2023), Supplemental

Brief (filed June 16, 2023).

United States Court of Appeals (D.C. Cir.):

In re: Simon V. Kinsella, No. 22-5317. Petition for

a writ of mandamus seeking review of the district

court’s order granting defendants’ motion to transfer

the case to the Eastern District of New York

(E.D.N.Y.). Judgment entered upon petition for writ

of mandamus affecting the transfer and an

emergency motion for a temporary restraining order

and preliminary injunction entered May 17, 2023

(idenied) (App 4a-5a). Judgment upon petitioner’s

motion to stay the mandate, treated as a motion to

stay the effectiveness, entered June 9, 2023 (denied)

(App 3a).

Simon V. Kinsella v. Bureau of Ocean Energy

Management, et al, No. 22-5316. Judgment upon

appellees-respondants’ motion to dismiss entered

February 23, 2023 (granted).

United States District Court (D.D.C.):

Simon V. Kinsella v. Bureau of Ocean Energy

Management, et al., No. l:22-cv-02147 (JMC).

Judgment upon federal defendants’ motion to

transfer entered November 10, 2022 (granted). See

Order (App 8a) and Opinion (App 9-19a).

(iii)

United States District Court (E.D.N.Y.):

Simon V. Kinsella v. Bureau of Ocean Energy

Management, et ah, No. 2:23-cv-02915 (FB).

Judgment upon plaintiff-petitioner’s motion for

preliminary injunction (D.D.C., No. l:22-cv-02147,

ECF 35) entered without power before the ruling to

transfer (entered May 17, 2023) became effective

contrary to D.C. Circuit order issued April 24, 2023

(“the case was transferred prematurely and in error

... The case in the Eastern District of New York, No.

2:23-cv-02915, has been administratively closed”)

See E.D.N.Y. Docket entry 04/19/2023 (App 20a) and

Docket entry 05/18/2023 “preliminary injunction is

denied” (App 21a-22a). Petitioner was not notified.

See MEMO and ORDER (App 28a-36a).

(iv)

TABLE OF CONTENTS

Questions Presented.............................................

Parties to Proceedings..........................................

Related Cases.........................................................

Table of Content.....................................................

Table of Authorities..............................................

Constitution, Statutes, and Regulations..........

Petition for a Writ of Certiorari....................

Opinions below.......................................................

Jurisdiction.............................................................

Statutory and Regulatory Provisions Involved

Preserving the Record..........................................

Statement

PROCEDURAL ABUSE:

District Court for the District of Columbia._

District Court Order to Transfer...................

Court of Appeals for the D.C. Circuit...........

Background...........................................................

Project: South Fork Wind (SFW)....................

Bureau of Ocean Energy Management........

Fraud: PFAS Contamination.......................

Fraud: Project Cost ($2 billion)......................

Fraud: South Fork RFP...................................

(i)

(h)

(iii)

(v)

(vi)

(ix)

Reasons for granting the petition..............

1. Petitioner will likely succeed on the merits .

2. Petitioner will likely suffer irreparable harm ... 23

3. The balance of equities favors Petitioner..

4. Injunctive relief favors the public interest

Conclusion

(v)

TABLE OF AUTHORITIES

Page

Cases:

Agency for Inti Development v. Alliance for Open

Society, 140 S. Ct. 2082 (2020)........................... 23

American Civil Lib. U. v. City of St. Charles,

794 F.2d 265 (7th Cir. 1986)............................... 29

Amoco Production Co. v. Gambell,

480 U.S. 531 (1987).............................................. 31

Archdiocese of Wash. v. Wash. Metro.

Area Transit Auth., 897 F.3d 314

(D.C. Cir. 2018)...................................................... 37

Armstrong v. Manzo,

380 U.S. 545 (1965).............................................. 22

Baltimore Gas & Electric Co. v. Natural Res.

Defense Council, Inc., 462 U.S. 87 (1983) 19, 20

Chaplaincy of Full Gospel Churches v. England,

454 F.3d 290 (D.C. Cir. 2006)

24, 29

Citizens Against Burlington, Inc. v. Busey,

938 F.2d 190 (D.C. Cir. 1991)................

Davis v. Pension Benefit Guar. Corp.,

571 F.3d 1288 (D.C. Cir. 2009)..............

17-18

Elrod v. Burns,

427 U.S. 347 (1976)..................................

Feltman v. Sarbov,

366 A.2d 137 (D.C. 1976)........................

Fine v. McGuire,

433 F.2d 499 (D.C. Cir. 1970)................

Gordon v. Holder,

721 F.3d 638 (D.C. Cir. 2013)................

36, 37

(vi)

Grannis v. Ordean,

234 U.S. 385 (1914)..................................

Jacob v. Roberts,

223 U.S. 261(1912).................................

Kleppe v. Sierra Club,

427 U.S. 390 (1976).................................

Kelley v. Everglades District,

319 U.S. 415 (1943).................................

League of Women Voters of U.S. v. Newby,

838 F.3d 1 (D.C. Cir. 2016)....................

36-37

Lynch v. Donnelly,

465 U.S. 668 (1984).................................

Mathews v. Eldridge,

424 U.S. 319 (1976).................................

Michigan y. Envtl. Prot. Agency,

135 S. Ct. 2699 (2015).............................

Percoco v. United States,

No. 21-1158, 598 U.S. —, — S. Ct. —, 2023 WL

37-38

3356527 (May 11, 2023)

Pursuing Am.’ Greatness v. Fed. Election Comm’n,

17-18, 31, 36

831 F.3d 500 (D.C. Cir. 2016).

Pyne v. Jamaica Nutrition Holdings Ltd.,

497 A.2d 118 (D.C. 1985)

20, 21, 34-35

Railroad Comm’n of Tex. v. Pullman Co.,

312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed.

971 (1941)......................................................

Sage v. Broadcasting Publications, Inc.,

997 F. Supp. 49 (DDC 1998)......................

34-35

(vii)

Simon Schuster v. Crime Victims Bd.,

502 U.S. 105 (1991)...........................

Starnes v. McGuire,

512 F.2d 918 (D.C. Cir. 1974).........

Tripati v. Henman,

No. 85-170 (D.Ariz. May 13, 1987).

Tripati v. Henman,

No. 86-231 (D.Ariz. April 14, 1987)

United States v. Williams,

836 F.3d 1 (D.C. Cir. 2016).............

. 20, 35

Van Dusen v. Barrack,

376 U.S. 612 (1964)..........................

16-17

Washington v. Reno,

35 F.3d 1093 (6th Cir. 1994)...........

36-37

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982)..........................

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008)...............................

17, 31

(viii)

CONSTITUTION, STATUTES,

AND REGULATIONS

U.S. Constitution...... 2, 3, 6, 21, 24, 29, 30, 36, 37

Fifth Amendment...... ........ 2, 4, 10, 16, 17, 32, 37

Due Process Clause.... ..............................6, 23, 25

24, 25, 29

Establishment Clause

Freedom of Information Act

5 U.S.C. § 552(a)(4)(B)........

28U.S.C. § 1254(1)

7, 16, 17

28 U.S.C. § 1404 ..................

National Environmental Policy Act (NEPA),

42 U.S.C. 4321 et seq.

6, 10, 19, 21, 26-27, 35

42 U.S.C. 4331(a)......

42 U.S.C. 4332..........

NEPA Regulations, 40 C.F.R.:

§ 1502.14.....................................................

§ 1506.5.......................................................

Outer Continental Shelf Lands Act (OCSLA)

.6, 10, 11

43 U.S.C. § 1331 et seq..................

....10, 18

43 U.S.C. § 1332.............................

OCSLA Regulations, 30 C.F.R.:

§ 585.626................................

§ 585.627................................

§ 585.628................................

§ 585.628(f)............................

11, 14, 34, 35

Federal Rules of Civil Procedure:

Rule 9(b)................................

2,9

(ix)

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The orders of the court of appeals (App. 3a, 4a-5a,

6a, 7a) are unreported. The order and opinion of the

district court for D.C. (App. 8a, 9a-19a) are un

reported. The orders and opinion of the district court

for E.D.N.Y. (App. 20a-27a, 28a-35a) are unreported.

JURISDICTION

The judgment of the court of appeals ordered

Petitioner’s emergency motion for a temporary

restraining order and preliminary injunction be

denied, and the petition for a writ of mandamus

seeking review of the district court order to transfer

be denied, entered May 17, 2023. (App 4a-5a) The

judgment of the court of appeals ordered Petitioner’s

motion to stay the mandate (treated as a motion to

stay the effectiveness) be denied, entered June 9,

2023. (App 3a). The Jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Pertinent provisions are set out in the appendix

to the petition (App 36a-38a).

PRESERVING THE RECORD

On July 20, 2022, Petitioner submitted to the

district court (on USB thumb drive) 207 exhibits

(provided to Defendant Bureau of Ocean Energy

Management on February 22, 2021). The court

accepted the files (D.D.C., No. l:22-cv-02147, ECF 3).

On November 29, 2022, Petitioner included “a USB

Flash Drive containing the files submitted in the

district court (docket l:22-cv-02147)” (D.C. Cir., No.

22-5317, 1976909, at vii). The documents form part of

the record.

STATEMENT

The Fifth Amendment to the United States

Constitution guarantees that “[n]o person shall ... be

deprived of life, liberty, or property, without due

process of law

If our Constitution is to have

meaning, its guaranteed rights must be dependable.

Petitioner invokes those guarantees now.

Three federal courts denied Petitioner the

fundamental right to a fair hearing. The judgments of

the district courts (for the District of Columbia and the

Eastern District of New York (E.D.N.Y.)), and the

Court of Appeals for the D.C. Circuit, have so far

departed from the accepted and usual course of

judicial proceedings, sanctioned (unconstitutional)

procedure in aid of perpetuating fraud by a federal

regulatory agency as to call for an exercise of this

Court’s supervisory power.

PROCEDURAL ABUSE:

District Court for the District of Columbia

Seven months ago (November 2, 2022), Petitioner

filed as of right First Amended Complaint that

“state[s] with particularity the circumstances

constituting fraud” (Fed. R. Civ. P. 9(b)) involving nine

Bureau of Ocean Energy Management (BOEM)

officials, named defendants (parties and potential

witnesses) who participated in a fraudulent

environmental review. BOEM has not answered the

amended complaint. BOEM did not answer the

complaint filed ten months ago (July 20, 2022).

BOEM did not respond to a summary judgment

motion, including eighty-nine material facts where

there is no genuine dispute (D.C. Cir., No. 22-5317,

Doc. 1999552-21), filed eight months ago (September

26, 2022). Each time, BOEM had an opportunity to

deny the allegations but did not. The district court

repeatedly turned to procedural abuse in aid of

protecting federal agency officials who knowingly

made materially false statements concerning an

offshore

wind project,

violating Petitioner’s

constitutional right to due process.

The evidence of fraud is disturbing.

conclusively shows that BOEM deliberately falsified

the review of an offshore wind project promoted by

South Fork Wind LLC (SFW),1 concealing extensive

environmental contamination harmful to human

health (see Kinsella Affidavit, D.C. Cir., No. 22-5317,

Doc. 1999552-02,

9-67)(App 39a-49a), the project

cost ($2 billion) and its adverse socioeconomic impact

(id.,

68-91)(App 49a-56a), procurement manipul

ation that stifled competition (id.,

92-106)(App

56a-62a), and other material facts such as adverse

population-level effects on an essential fish habitat for

Atlantic Cod (Cox Ledge), and a viable alternative

offering the same energy at half the price.

Seven instances of BOEM’s fraudulent review are

prominently upfront in Petitioner’s First Amended

Complaint.2 The district court accepted the amended

complaint but refused to recognize substantive

allegations of fraud or named defendants under the

1 Formerly Deepwater Wind South Fork LLC

2 See First Amended Complaint, excerpts, D.C. Cir., No. 22-5317,

Doc. 1999552-22 (at 1-7)

five fraud claims introduced into the complaint.

BOEM’s only defense is for the courts to deprive

Petitioner of a hearing on his fraud claims in violation

of the Fifth Amendment. On November 29, 2022,

Petitioner filed a Petition for a Writ of Mandamus

seeking review of the district court’s practice of

denying Petitioner’s rights to respond to defendants’

motions and a fair hearing five times in two months,3

as follows—

(1)

September 13, 2022— the district court

granted defendants’ motion to extend time “for The

Government to file its responsive pleading to the

Complaint” that defendants filed the day before,

thereby denying Petitioner the opportunity to

respond. See No. 22-5317, Doc. 1999552-03, (“D.D.C.

DOCKET”) (at 4, MINUTE ORDER 09/13/2022).

Frustrated, Petitioner filed (September 26, 2022)

a cross-motion for partial summary judgment and

statement of material facts with eighty-nine facts

where there is no genuine dispute (see No. 22-5317,

1999552-21). In response, BOEM filed a motion to

strike or stay the briefing (October 6, 2022) (D.D.C.

Docket, at 4, ECF 24).

(2)

October 9 (Sunday)— the district court

granted defendants’ motion to strike or stay the

briefing (filed three days earlier) on Petitioner’s

summary judgment motion (stayed), denying

Petitioner the opportunity to respond (D.D.C. Docket,

at 5, MINUTE ORDER 10/09/2022).

(3)

November 9— A month later, the court

ruled to strike Petitioner’s summary judgment motion,

“[i]t is premature given that the defendants haven’t

3 See Reply to Federal Defendants’ Opposition to Mandamus

Petition, No. 22-5317, Doc. 1994449, corrected)

formally responded” (see Hearing Tr., November 9,

2022, No. 22-5317, Doc. 1994062-11, at 3:8-9), “just so

that the docket is cleaned up and that defendants

don’t have this outstanding obligation” (id., 3:21-22).

Petitioner did not have an opportunity to respond

before the court ruled to strike (D.D.C. Docket, at 7,

MINUTE ORDER 11/10/2022).

On November 2, 2022, Petitioner filed First

Amended Complaint (as of right) concurrently with a

motion for a temporary restraining order and

preliminary injunction (D.D.C. DOCKET, at 5-6, ECF

34 and 35). The district court accepted the amended

complaint (during the November 9 hearing) — “I will

grant ... Mr. Kinsella’s motion to amend the

complaint, which he was free to do as a matter of

course at this stage of the proceedings ... when we are

referring ... to any allegations, we are all talking

about the same operative complaint.”4

However, the district court did not address or allow

comment on the amended complaint’s five claims of

fraud (and nine BOEM officials named defendants

under' those claims) or seven instances of fraud

prominently upfront.5 The D.C. Circuit admitted the

district court did not “consider or allow argument on

[Petitioner’s five] claims of fraud” (or nine defendants,

potential witnesses, named under the claims)(App 5a).

During the November 9 hearing, the court did not

grant Petitioner the opportunity to address issues

regarding allegations of fraud (or BOEM’s review).

November 9— The district court ruled to

(4)

transfer the case absent a hearing on claims of fraud

4 See November 9, 2022, Hearing Tr. (at 2:20-25 and21:l-2)(D.C.

Cir., No. 22-5317, Doc. 1994062-11).

5 See First Amended Complaint, excerpts, No. 22-5317, Doc.

1999552-22, at 3-10)

or contemplation of parties and potential witnesses. It

was the fourth time the district court denied

Petitioner the right to respond or speak to fraud issues

at a fair hearing.

(5)

November 9— “[T]he Court DENIES

[Petitioner’s] Motion for a Temporary Restraining

Order 35 for the reasons stated on the record at the

hearing.”6 However, for the same reasons the hearing

on the transfer order was deficient, the hearing on the

TRO was also defective because it failed to address

critical fraud arguments. Without considering critical

elements of fraud (by BEOM and SFW), the court had

no reason to question whether SFW’s economic injury

resulted from wrongdoing or fraud when weighing the

equities in consideration of injunctive relief. It was

the fifth time the district court had denied Petitioner

his fundamental constitutional right to a fair hearing

on fraud claims and due process of law.

District Court Order to Transfer

On July 20, 2022, Petitioner filed his complaint in

Washington, D.C., a permissible venue easily

commutable between the courthouse and three federal

agency defendants’ offices where the causes of action

occurred giving rise to the claims under federal law—

the National Environmental Policy Act (NEPA), Outer

Shelf Continental Lands Act (OCSLA), Due Process

Clause, and the Freedom of Information Act (FOIA).

The District of Columbia is a forum with recognized

expertise in FOIA complaints.7

The district court ordered the case be transferred

from Washington, D.C., a convenient location for all

e See D.D.C. DOCKET, MINUTE ORDER 11/10/2022 (D.C. Cir.,

No. 22-5317, Doc. 1999552-03, at 7)

7 5 U.S.C. § 552(a)(4)(B)

parties and potential witnesses chosen by Petitioner,

to the district court in the E.D.N.Y., three hundred

miles from three federal agency defendants’ offices,

nine BOEM officials (defendants and potential

witnesses named in five fraud claims) and the

seventeen causes of action. The courthouse in Central

Islip is convenient for no parties or potential witnesses.

Court of Appeals for the D.C. Circuit

On November 29, 2022, Petitioner filed a Petition

for a Writ of Mandamus seeking review of the district

court’s order transferring the case without a hearing

or considering the convenience of parties and potential

witnesses according to 28 U.S.C. § 1404.

On February 23, 2023, the assigned panel, Circuit

Judges Wilkins, Rao, and Walker, ordered “the United

States and South Fork Wind LLC [SFW] enter

appearances and file responses to the mandamus

petition” (App 7a), which they did (on March 27, 2023).

Petitioner filed a timely reply (see No. 22-5317, Doc.

1994449, corrected).

On April 19, 2023, in what appeared to be an

attempt to evade appellate scrutiny, the district court

transferred the case to the E.D.N.Y. without power

before the court of appeals had ruled on the

mandamus petition. An emergency motion filed that

day sought return of the files {id., Doc. 1995489).

On April 24, 2023, a D.C. Circuit order confirmed

that “the case was transferred prematurely and in

error ... [and] [t]he case in the Eastern District of New

York, No. 2:23-cv-02915, has been administratively

closed” {id., Doc. 1996148) (ORDER App 6a)(E.D.N.Y

Docket, App 20a).

However, the next day, the E.D.N.Y. case was

“reassigned to Judge Frederic Block and Magistrate

Judge Steven Tiscione (as related to 22-cv-1305) for all

further proceedings.” (E.D.N.Y. Docket, App 20a-21a),

and on May 1, reopened—“[o]rderQ by Judge Frederic

Block” (see E.D.N.Y. Docket, 05/01/2023, App 21a).

Petitioner had not been notified that his case had been

reassigned and reopened.

Concerned about agency malfeasance by BOEM

and continuing (unlawful) construction it approved

based on fraud, Petitioner filed a motion for a

temporary restraining order and preliminary

injunction enjoining construction activities of

respondent SFW on May 16, 2023 (at 9:02 p.m.).

On May 17, 2023 (12:10 p.m.), only hours after the

motion had been filed, a new panel (Circuit Judges

Millet, Pillard, and Rao) decided the case (initially

assigned to Circuit Judges Wilkins, Rao, and Walker).

The new panel denied the mandamus petition, thus

affecting transfer, and denied injunctive relief (App

4a-5a). Such a swift decision left little time for

consideration on the merits.

The court of appeals’ order denying the mandamus

petition (App 4a-5a) relies on a case concerning a

prisoner in Arizona who sought to overturn a transfer

order based on an alleged denial of access to legal

materials, where he had filed the same claims in

another U.S. District Court (in Arizona). “[T]he

Arizona district court has found, on two previous

occasions, that the law library at FCI-Tucson is

constitutionally adequate. See Tripati v. Henman, No.

86-231

(D.Ariz. April 14,

1987); Tripati v.

Henman, No. 85-170 (D.Ariz. May 13, 1987).” Id. In

that case, the court concluded transfer was warranted

“due to its familiarity with the related civil suits filed

there [in Arizona in federal court] by Tripati[,]” citing

“Starnes v. McGuire, 512 F.2d at 932” (id.), another

case concerning a prisoner and habeas issues. This

case is not a habeas action, and Petitioner Kinsella is

not a prisoner. Petitioner has commenced only one

action in any court (federal or state), where he

“state[s] with particularity the circumstances

constituting fraud” (Fed. R. Civ. P. 9(b)) concerning

nine named BOEM officials (defendants and potential

witnesses) and a fraudulent environmental review by

a federal agency.

The court of appeals’ order denying injunctive relief

gave no reason for its denial in conflict with this Court

precedent (seep. 17).

The next day (May 18), the E.D.N.Y. court ordered

“[pjlaintiffs motion [in D.D.C., No. l:22-cv-02147,

ECF] 35 for a preliminary injunction is DENIED.

Ordered by Judge Frederic Block on 5/18/2023” (App

21a)(App 28a-35a). The order was without power.

D.C. Circuit Rule 41(3) states that—

No mandate will issue in connection

with an order granting or denying a

writ of mandamus ... but the order or

judgment ... will become effective

automatically 21 days after issuance

Twenty-one days after issuance of that order is

June 7, 2023. However, the E.D.N.Y. court denied

Petitioner’s preliminary injunction on May 18, 2023

(App 28a-35a), twenty days before the transfer had

The (unlawful) order denying

become effective.

Petitioner a preliminary injunction was not without

prejudice. Petitioner had not been notified and was

unaware of the proceedings. There was no hearing.

The caption on the E.D.N.Y. court order (App 28a)

erecludes eight defendants (BOEM officials) named in

Petitioner’s five fraud claims. The E.D.N.Y. court

ignored Petitioner’s amended complaint as if it, the

defendants, and the fraud claims do not exist.

The E.D.N.Y. court order denying injunctive relief

violates Petitioner’s Fifth Amendment right to a

hearing on fraud claims that had also been denied him

in the D.C. district court and the D.C. Circuit.

BACKGROUND

Project: South Fork Wind (SFW)

The Project BOEM approved is an offshore wind

farm (130 megawatts) approximately 19 miles

southeast of Block Island, Rhode Island, and 35 miles

east of Montauk Point, New York, in the Atlantic

Ocean. The project includes high-voltage (138 kV)

transmission and related infrastructure installed

underneath local laneways and streets through a

residential neighborhood in Wainscott, N.Y. (for

approximately two-and-a-half miles).

SFW commenced construction in February 2022.

Bureau of Ocean Energy Management

Under Outer Continental Shelf Lands Act (OCSLA)

regulations, BOEM has authority to “approve,

disapprove, or approve with modifications” (30 C.F.R.

§ 585.628(f)) construction and operations plans for

multi-billion-dollar offshore development in marine

environments on the “[Ojuter Continental Shelf [that]

is a vital national resource reserve held by the Federal

Government for the public” (43 U.S.C. § 1332(3)).

BOEM is the lead federal agency responsible for

SFW’s environmental review pursuant to the NEPA

and the OCSLA.

It developed the Final

Environmental Impact Statement (FEIS) (August 16,

2021) for SFW’s Construction and Operations Plan

(COP) (May 2021) and issued a Record of Decision

(ROD) approving the FEIS (on November 24, 2021).

According to the ROD,

[OCSLA] regulations at 30 C.F.R §

585.628 require BOEM to review the COP

and all information provided therein

pursuant to 30 C.F.R. §§ 585.626 and

585.627, to determine whether the COP

contains all the information necessary to

be considered complete and sufficient for

BOEM to conduct technical and

environmental reviews [see 22-cv-02147,

ECF No. 45.2, at D-5, PDF 97, second

paragraph].8

The ROD confirms that—

Throughout the review process, BOEM

evaluated the information [that] ... South

Fork Wind submitted, and determined

that the information provided was

sufficient in accordance with the

regulations [id., at D-6, PDF 98, second

paragraph].

OREP has determined that the COP

includes all the information required in

30 C.F.R. §§ 585.626 and 585.627 for the

Proposed Project [id., third paragraph].

On January 18, 2022, BOEM “approved the

Construction and Operations Plan (COP) that South

8 See Record of Decision (ROD), issued by BOEM on November

24, 2022. Available at boem.gov— www.boem.gov/renewableenergy/state-activities/south-fork

Fork Wind, LLC initially submitted on June 29, 2018,

and last updated on May 7, 2021

Fraud: PFAS10 Contamination

onshore

acknowledges

that

SFW’s

COP

construction “activities [] could impact water quality

and water resources ... including] the installation of

the underground transition vault at 0 Beach Lane ...

[and] installation of the underground SFEC [South

Fork Export Cable] Q [o]nshore route ...” 11 BOEM’s

FEIS contradicts SFW’s COP. BOEM asserts that

“[t]here are no onshore construction activities under

the Proposed Action that would require ground

disturbance at depths at or near groundwater

resources, and all activities would meet permit and

regulatory requirements to continue protecting

groundwater as drinking water resources ... Onshore

subsurface ground-disturbing activities would not be

placed at a depth that could encounter groundwater,

and would therefore not result in impacts on water

quality.”12 BOEM states that “groundwater quality in

the analysis area appears to be good” (No 22-5317,

Doc. 1999552-16, at l).13 BOEM knew its statements

9 See SFW COP (May 2021) (at 4-67, PDF 235,1 6)—

www.boem.gov/sites/default/files/documents/renewableenergy/South-Fork-Construction-Operations-Plan.pdf

10 PFAS: Per/- and Polyfluoroalkyl Substance contamination.

11 BOEM SFW COP Approval Letter, January 18, 2022 (at 1)—

www.boem.gov/sites/default/files/documents/renewableenergy/state-activities/SFWF-COP-Approval-Letter.pdf

12 See FEIS (at H-28, PDF 660, t 3). Available at boem.gov—

www.boem.gov/sites/default/files/documents/renewableenergy/state-activities/SFWF%20FEIS.pdf

13 See Final Environmental Impact Statement (FEIS), August 16,

2021 (at H-23, PDF 655). Available at boem.gov (see link)—

www.boem.gov/renewable-energy/state-activities/south-fork

on the project’s impact on groundwater and existing

groundwater quality were false.

In February 2021, nine months before BOEM

approved the FEIS (November 24, 2021), BOEM

received and uploaded (to regulations.gov) Petitioner’s

comments and 207 exhibits. Petitioner’s letter asked

BOEM “that the documents be incorporated by

reference and form part of my comments ... and that

BOEM, as lead agency, conduct [s] a broad review of

the whole Project.... ”14

documents

included

multiple

site

The

characterization reports for two adjacent properties

on either side of SFW’s proposed construction corridor

through Wainscott (two prepared for New York State

Department of Environmental Conservation and

another for the Town of East Hampton), hundreds of

laboratory test results for PFAS contamination of

private drinking water wells from Suffolk County

Department of Health Services (SCDHS), testimony,

and maps. The evidence shows beyond doubt that

groundwater in the area where SFW proposed

constructing concrete infrastructure for high-voltage

transmission cables encroaching into and at the

capillary fringe of a sole-source aquifer contains high

levels of PFAS contamination exceeding regulatory

limits. One document, an EPA “FACT SHEET’ (2016)

on “PFOA & PFOSI15] Drinking Water Health

Advisories,” reads— “[E]xposure to PFOA and PFOS

over certain levels may result in adverse health

effects, including developmental effects to fetuses

during pregnancy or to breastfed infants (e.g., low

birth

weight,

accelerated

puberty,

skeletal

14 See D.C. Cir., No. 22-5317, Doc. 1999552-12, at 2, 5th 1)

15 Perfluorooctanoic Add (PFOA); Perfluorooctane Sulfonate (PFOS).

variations), cancer (e.g., testicular, kidney), liver

effects (e.g., tissue damage), immune effects (e.g.,

antibody production and immunity), thyroid effects

and other effects (e.g., cholesterol changes).”16

In Suffolk County, thirty-two percent (32%) of all

wells with PFOA or PFOS contamination exceeding

regulatory limits are in the exact same area where

South Fork Wind proposed installing its underground

concrete infrastructure.17 Neither BOEM’s FEIS nor

SFW’s COP mentions either chemical compound. See

Kinsella Affidavit (D.C. Cir., No. 22-5317, Doc.

1999552-02, IfH 9-53)(App 39a-46a).

Fraud: Project Cost ($2 billion)

In 2018, Petitioner informed BOEM of SFW’s

“fail[ure] to comply with 30 CFR 585.627(a)(7) with

specific regard to its potential negative impact upon

employment” and of the Project cost, “$1,624,738,893.”

Now that cost is $2,013,198,056. BOEM knew that

SFW came at a price but failed to acknowledge or

consider the project cost in its socioeconomic impact

BOEM’s one-sided economic analysis

analysis.

accounts for beneficial Project-related spending in the

local economy but ignores the cost burden to

ratepayers ($2 billion), which would adversely impact

the local economy. The Project cost outweighs SFW’s

claimed beneficial spending many times over. For

every dollar SFW puts into the economy, it takes out

is See EPA FACT SHEET PFOA & PFOS (2016) at link—

https://downloads.regulations.gov/BOEM-2020-00660386/attachment_13.pdf

17 See Newsday, published April 4, 2022, ’Forever chemicals'

found in Suffolk’s private water wells since 2016 (D.C. Cir., No.

22-5317, Doc. 1999552-17, at 3-6) (www.newsday.com/longisland/environment/private-wells-testing-contaminantsdrinking-water-pfas-v49xdvtl)

a multiple of that amount. See Kinsella Affidavit

(D.C. Cir., No. 22-5317, Doc. 1999552-02, ff 6891)(App 49a-56a).

Fraud: South Fork RFP

On November 8, 2021, NYSPSC General Counsel

Robert Rosenthal admitted that “[i]n January 2017,

LIPA ... awarded SFWQ a PPA [power purchase

agreement] for the supply of energy at an average

price of 22 cents per kWh” and that “LIPA plans to

purchase the same offshore wind renewable energy

from another wind farm, Sunrise Wind, for 8 cents per

kWh ... The two offshore wind farms - SFWF and

Sunrise Wind Farm - are only two miles apart and are

owned and controlled indirectly by the same joint and

equal partners, Orsted and Eversource.”18 At the

prices admitted by Mr. Rosenthal, SFW is overpriced

by $1,025,415,962 (see Kinsella Affidavit, Iff 105106)(App 61a-62a)

BOEM asserts that the “power purchase agreement

executed in 2017 resulted] from LIPA’s technologyneutral competitive bidding process[,]” referring to the

South Fork RFP (id, f 102)(App 60a). SFW makes the

same false claim in its COP {id, f 103)(App 60a). Nine

months before BOEM approved the Project, Petitioner

provided BOEM with substantiating evidence

The

contradicting BOEM’s and SFW’s claim,

documents show the South Fork RFP advanced

proposals based on technology {not technology-neutral),

was a manipulated procurement that stifled

competition, permitted favoritism, and was not

is See Verified Petition (D.C. Cir., No. 22-5317, 1999552-09, ff

62-64) and Verified Answer {id., 1999552-10, ff 62-64) in Simon

V. Kinsella v. NYSPSC (index 2021-06572, N.Y. App. Div., 2d

Dept.).

competitive (id.,

92-106)(App 56a-62a).

approved SFWs project regardless.

BOEM

REASON FOR GRANTING THE PETITION

The district court for D.C. repeatedly denied

Petitioner answers to his complaint, amended

complaint, and a response to his summary judgment

motion and statement of material facts, violating his

Fifth Amendment rights to due process of law.

The courts consistently deny Petitioner a hearing

on his five fraud claims and consideration of named

defendants under those claims, violating his Fifth

Amendment right to a hearing on his claims.

The D.C. Circuit admitted “the district court did

not explicitly consider or allow argument on

[Petitioner’s] independent claims of fraud [and nine

named defendants under those claims], which were

first raised in his amended complaint” (App 5a). Still,

acknowledging the district court did not consider

(explicitly or otherwise) Petitioner’s fraud claims, thus

denying Petitioner a fair hearing; the D.C. Circuit

affirmed the district court’s transfer order.

The D.C. Circuit and the district court rulings to

transfer the case conflict with the plain language of

the statute (28 U.S.C. § 1404)—

(a)

For the convenience of parties and

witnesses, in the interest of justice, a

district court may transfer any civil

action to any other district or division

where it might have been brought...

The courts’ rulings conflict with this Court

precedent. In Van Dusen v. Barrack, this Court held

that the purpose of section 1404(a) “is to prevent the

waste of time, energy and money’ and to protect

litigants, witnesses and the public against

unnecessary inconvenience and expense” (376 U.S.

612, 616 (1964)). “[T]he most convenient forum is

frequently the place where the cause of action arose”

(id., at 628). “Section 1404(a) provides for transfer to

a more convenient forum, not to a forum likely to

prove equally convenient or inconvenient” (id., at 646).

On May 17, 2023, the court of appeal for the D.C.

Circuit denied Petitioner injunctive relief without a

hearing (No. 22-5317, Doc. 1999552-0)(see p. 9). The

appeals court gave no reason for denying preliminary

injunction, contrary to this Court precedent in Kelley

v. Everglades District, 319 U.S. 415, 416 (1943)

(“[T]here must be findings, in such detail and

exactness as the nature of the case permits, of

subsidiary facts on which the ultimate conclusion [on

the relevant issue] can rationally be predicated ... it is

not the function of this Court to analyze the evidence

in order to supply findings ... sufficient to indicate the

factual basis for its ultimate conclusion.”)

The courts’ orders denying answers to allegations of

fraud, a hearing on fraud claims, and injunctive relief

compromise proper judicial review of fraud claims and

violate Petitioner’s Fifth Amendment right to due

process of law.

Petitioner’s motion for injunctive relief makes a

clear showing that “four factors, [when] taken together,

warrant relief: likely success on the merits, likely

irreparable harm in the absence of preliminary relief, a

balance of the equities in its favor, and accord with the

public interest. Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see

also Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288,

1291-92 (D.C. Cir. 2009).” Pursuing Am/Greatness v.

Fed. Election Comm % 831 F.3d 500, 505 (D.C. Cir. 2016).

Please see Emergency Motion for a Temporary

Restraining Order and Preliminary Injunction (No.

22-5317, Doc. 1999552-01, and Kinsella Affidavit (id.,

Doc. 1999552-02).

i. Petitioner will likely succeed on the merits.

Nine months before BOEM approved the FEIS for

SFW, BOEM acknowledged receiving conclusive

evidence of PFAS contamination in soil and

groundwater in the exact same area where SFW

concrete

installing

underground

proposed

infrastructure for high-voltage transmission cables

(see Kinsella Affidavit, If 9-53)(App 39a-46a). Still,

BOEM’s FEIS contains no discussion, analysis, test

results, or mitigation plans to minimize the project’s

impact on PFAS contamination. It does not consider

the adverse health effects of chemicals the EPA links

to cancer (id,

54-67)(App 46a-49a). In 2018,

Petitioner notified BOEM that it had not considered

the socioeconomic impact of the project’s cost and that

it was substantially more expensive than other nearby

wind farms (id, It 68-76) (App 49a-53a). BOEM failed

to “independently evaluate the information” submitted

by SFW, even after receiving information disproving

SFW’s claim. BOEM “shall be responsible for [the

FEIS’] accuracy.” (40 C.F.R. § 1506.5). BOEM did not

ensure that SFWs development was “subject to

environmental safeguards” (43 U.S.C. § 1332 (3))

concerning onshore PFAS contamination or “consistent

with the maintenance of competition” (id.) regarding a

non-competitive procurement process, where proposals

were advanced based on technology (id., H 104). BOEM

did not discuss alternatives to avoid a contaminated

area or obtain the same renewable energy at half the

price from an offshore wind farm two miles away

owned by the same joint and equal partners. “An EIS

must discuss, among other things, ‘alternatives to the

proposed action/ NEPA § 102(2)(C)(iii), 42 U.S.C. §

4332(2)(C)(iii), and the discussion of alternatives

forms ‘the heart of the environmental impact

statement/ 40 C.F.R. § 1502.14” Citizens Against

Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir.

BOEM is required to “consider every

1991).

significant aspect of the environmental impact of [the]

proposed action” Baltimore Gas & Electric Co. v.

Natural Resources Defense Council, Inc., 462 U.S. 87,

97 (1983), and “to disclose the significant health,

socioeconomic, and cumulative consequences of the

environmental impact” (id., at 106-07). It had to “take

a ‘hard look’ at the environmental consequences before

taking a major action” Kleppe v. Sierra Club, 427 U.S.

390, 410, n. 21 (1976).

BOEM did not consider the ($2 billion) project cost.

In 2015, this Court made its position clear in a case

concerning an EPA decision to reduce power plants’

emissions of hazardous air pollutants, analogous to

offshore wind’s efforts to reduce the same emissions.

There, “[t]he Agency gave cost no thought at all,

because it considered cost irrelevant” Michigan v.

Envtl. Prot. Agency, 135 S. Ct. 2699, 2706 (2015).

Justice KAGAN, with whom Justice GINSBURG,

Justice BREYER, and Justice SOTOMAYOR joined,

dissenting, agreed with Justice SCALIA and the

majority— “I agree with the majority—let there be no

doubt about this—that EPA’s power plant regulation

would be unreasonable if ‘[t]he Agency gave cost no

thought at all/ ” Id., (at 2714). Here, BOEM gave the

cost ($2 billion) no thought at all.

Instead, BOEM not only neglected its duty to

“inform the public that it has indeed considered

environmental concerns in its decisionmaking

process” (Baltimore Gas, supra, at 97), it went one step

further— it falsified and concealed environmental

contamination by asserting “existing groundwater

quality in the analysis area appears to be good” (No.

22-5317, Doc. 1999552-16), and falsely stated the

project’s socioeconomic impact by omitting the project

cost and the nature of the procurement process,

contradicting evidence it acknowledged receiving nine

months before approving the project.

BOEM’s act satisfies the requisite elements of

fraud. Petitioner can “show by clear and convincing

evidence” (Pyne v. Jamaica Nutrition Holdings Ltd.,

497 A.2d 118, 131 (D.C. 1985)) that BOEM made a

“false representation of material fact which is

knowingly made” (id.) by falsely stating groundwater

quality, the project’s socioeconomic impact, and the

nature of the procurement process, contrary to

evidence it acknowledged receiving with the probable

consequence of approving the project based on its own

false representations. One “may infer ... that a person

intends the natural and probable consequences of acts

knowingly done or knowingly omitted” United States

v. Williams, 836 F.3d 1, 30 (D.C. Cir. 2016). Knowing

the “probable consequences” of its acts would be to

approve the project with false statements absent

accurate information, BOEM issued its ROD

approving the FEIS on November 24, 2021. BOEM’s

false representations would naturally deceive the

reader into believing the water quality in Wainscott is

good, the price of renewable energy is reasonable, and

the procurement was technology-neutral and

competitive, but it was not. BOEM deceived the

public.

The final element to prove fraud is an “action [that]

is taken in reliance upon the misrepresentation.”

Pyne v. Jamaica Nutrition Holdings Ltd., (supra). On

October 19, 2018, BOEM published a Notice of Intent

to Prepare an Environmental Impact Statement for

SFW “[c]onsistent with the regulations implementing

the National Environmental Policy Act (NEPA)” (83

Fed. Reg. 53,104).19 On January 8, 2021, BOEM

published a Notice of Availability of a Draft

Environmental Impact Statement “[i]n accordance

with regulations issued under the National

Environmental Policy Act” (86 Fed. Reg. 1520).20 In

response to both notices, Petitioner submitted

comments (on November 18, 2018, and February 22,

2021, respectively).21 Petitioner’s February 2021

comments letter specifically requested “that BOEM,

as lead agency, conduct a broad review of the whole

Project including in all respects the onshore and

offshore components and ‘use all practicable means

and measures’ ” (quoting NEPA 42 U.S.C. § 4331(a)).22

Petitioner relied on BOEM to perform a legally

sufficient review. However, BOEM deceived the

public and Petitioner by failing to perform that

review.

In addition, Petitioner can establish that the

district courts (in D.C. and the E.D.N.Y.) and the D.C.

Circuit deprived him of his Constitutional rights to

due process of law.

19 See https://www.federalregister.gOv/d/2018-22880/p-3. South

Fork Wind LLC (formerly Deepwater Wind South Fork LLC)

20 See https://www.federalregister.gOv/d/2021-00100/p-3

21 See No. 22-5317, Doc. 1999552-10 and Doc. 1999552-11.

22 Id., Doc. 1999552-11 (at 2, fifth paragraph).

[A]s a matter of fundamental fairness

the judge must accord an opportunity to

be heard at least whenever there is a

possibility that the hearing may develop

facts bearing on the decision ... See Fine

v. McGuire, 433 F.2d 499, 501 (D.C. Cir.

1970).

The courts repeatedly denied Petitioner his right to

a fair hearing on fraud claims and the contemplation

of the convenience of nine BOEM officials and named

defendants under those claims (parties and witnesses)

before transferring the case and denying injunctive

relief.

The fundamental requirement of due

process is the opportunity to be heard ‘at

a meaningful time and in a meaningful

manner/ Armstrong v. Manzo, 380 U.S.

545, 552 (1965). See Grannis v. Ordean,

234 U.S. 385, 394 (1914). See Mathews v.

Eldridge, 424 U.S. 319, 333 (1976).

The D.C. Circuit admitted that the district court did

not “consider or allow argument on [Petitioner’s]

independent claims of fraud” and named defendants

under those claims (parties and witnesses) but still

concluded “transfer was warranted.” (App 4a-5a)

Petitioner did not have an opportunity to be heard on

his claims of fraud.

Due process of law ... implies the

administration of law ... by a competent

tribunal having jurisdiction of the case

and proceeding upon notice and hearing

[internal quotes removed]. See Jacob v.

Roberts, 223 U.S. 261, 262 (1912)

The district court in the E.D.N.Y. ordered that

petition’s preliminary injunction motion be denied

(entered May 17, 2023) twenty days before the D.C.

Circuit’s order denying Petitioner’s mandamus

petition affecting transfer had become effective (June

The E.D.N.Y. district court lacked

7, 2023).23

jurisdiction to deny preliminary injunction. The court

deleted from the order’s case caption the BOEM

officials named as defendants under the fraud

claims(App 28a), and the order itself ignored the fraud

claims (App 28a-35a). The E.D.N.Y. court denied

Petitioner’s preliminary injunction motion without his

knowledge, without a hearing absent contemplation of

fraud claims.

2. The Petitioner and the public will likely suffer

irreparable harm.

The loss of First Amendment freedoms,

for even minimal periods of time,

unquestionably constitutes irreparable

injury. See Elrod v. Burns, 427 U.S. 347,

373 (1976)

Although Elrod v. Burns refers to First Amendment

freedoms, the same applies to Plaintiffs rights to due

process free of bias, but with a distinction. “The First

Amendment does not mandate a viewpoint-neutral

government” (internal quotes removed). Agency for

Int’l Development v. Alliance for Open Society, 140 S.

Ct. 2082, 2090 (2020) (Justice THOMAS concurring

with Justice KAVANAUGH and the majority). The

Due Process Clause requires a court to receive, in the

first instance, substantive claims with a neutral

23 See D.C. Circuit Rules 41(3)

viewpoint without pre-judging some claims to be set

aside and to be wholly ignored, as in the case here

regarding Petitioner’s fraud claims. Both district

courts (in D.C. and the E.D.N.Y.) deprived Petitioner

of the right to hear his claims free from prejudice.

Petitioner’s claims were cherry-picked by the courts to

suit a desired outcome.

Harm from the forbidden message

Mien considering Establishment Clause violations

in Chaplaincy of Full Gospel Churches, the D.C.

Circuit recognized that—

[Ojfficial preference of one religion over

such

governmental

another,

endorsement ‘sends a message to

nonadherents

[of

the

favored

denomination] that they are outsiders,

not full members of the political

community, and an accompanying

message to adherents that they are

insiders, favored members of the political

community.’ Lynch v. Donnelly,465 U.S.

668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604

(1984) (O’Connor, J., concurring).”

(square brackets included in original

text) [supra, at 302]. This harm ... occurs

merely by virtue of the government’s

purportedly unconstitutional policy or

practice [id.] [Specifically, the harm

that flows from the ‘forbidden message’

[supra, at 299].

The D.C. Circuit recognized “harm that flows from

the ‘forbidden message’ ” when government acts send

an adverse message endorsing one religion over

another. Whether it be Establishment Clause or Due

Process Clause violations, harm flows from the

message unlawful government acts send. In this case,

BOEM disregarded its statutorily mandated

obligations and engaged in common law fraud against

the public interest. The courts’ violated Petitioner’s

Due Process Clause rights in aid of perpetuating

BOEM’s fraud. Such actions send the wrong message.

Fraud against the public interest by BOEM officials

who have a duty to serve the public sends the wrong

message to the offshore wind industry it regulates.

Marine Construction

The United States has embarked on one of the

largest construction programs in its history. Private

developers have submitted building plans for 3,031

offshore wind turbines24 up to 1,171 feet tall,25 double

the height of the Washington Monument. Each wind

turbine could have up to four foundation piles (12,124

piles), each with a diameter of up to 14.8 feet (half the

width of the Washington Monument’s top section).26

Each foundation pile might penetrate the seabed

down 197 feet.27 To understand the construction

program’s scale, look at the Washington Monument

and imagine more than three thousand monuments

twice the height (half the width) with blades up to 935

feet in diameter28 and streaks of oil and grease

24 See D.C. Cir., No. 22-5317, Doc. 1994062-07 (at 3)

25 Id. (at 1)

26 See SouthCoast Wind (formerly Mayflower Wind), COP, Vol.

II, Rev-E (at 9-16, PDF 498, Table 9-10). At boem.gov (under the

tap “Construction and Operation Plan”)—

https://www.boem.gov/renewable-energy/stateactivities/southcoast-wind-formerly-mayflower-wind

v Id.

m See D.C. Cir., No. 22-5317, Doc. 1994062-07 (at 3)

running down the sides from the mechanical turbines

and rotating hubs. The (3,031) offshore wind turbines

require repairs and maintenance and (in total)

4,089,015 gallons of coolant fluids, 8,849,066 gallons

of oils and lubricants, and 2,212,425 gallons of diesel

fuel,29 which must be refilled and changed by boat in

sometimes rough seas. The industrial-scale offshore

development program has inherent risks to life,

property, and the marine environment.

As of March 2023, BOEM had auctioned leases to

private companies to develop 2.8 million acres of lease

area off the U.S. coastline to offshore wind

developers.30 By 2024, BOEM plans to auction an

additional 7.1 million acres (id.). Including areas for

which BOEM has issued a Call for Information and

Nominations (Oregon and the Gulf of Mexico), BOEM

could potentially lease up to 45.3 million acres (id.),

about the same size as the twelve largest U.S.

National Parks combined.31

Any departure from the high standards of

excellence that the nation expects of the federal

agency overseeing such an ambitious build-out of our

coastline could be disastrous. For example, the BP

Deepwater Horizon Disaster, Report to the President

(2011) reads— “With regard to NEPA specifically,

some MMS [BOEM’s predecessor] managers

29 See South Coast Wind (formerly Mayflower Wind), Draft

Environmental Impact Statement, February 2023, Vol. II:

Appendix D, Table D2-3. Offshore wind development activities

on the U.S. East Coast (at D-79, PDF 83). See boem.gov at—

https://www.boem.gov/renewable-energy/stateactivities/southcoast-wind-draft-enviromnental-impactstatement

so See D.C. Cir., No. 22-5317, Doc. 1994062-06 (at 4)

31 Approximately 45.8 million acres (id., Doc. 1994062-08, at 1)

reportedly ‘changed or minimized the ... scientists’

potential environmental impact findings in [NEPA]

documents to expedite plan approvals.’ According to

several MMS environmental scientists, ‘their

managers believed the result of NEPA evaluations

should always be a ‘green light’ to proceed.’ ” See No.

22-5317, Doc. 1994062-09 (at 14). “It should be no

surprise under such circumstances that a culture of

complacency with regard to NEPA developed” (id.).

Conflicted oversight

The three people overseeing the development of up

to 45.3 million acres off the U.S. coastline all worked

for a major law firm advising the offshore wind

industry, Latham & Watkins LLP. The current U.S.

Deputy Secretary of the Interior, Tommy Beaudreau,

was a partner in the Washington, D.C. office of

Latham & Watkins (2017-2021).

The Nominee

Report for Mr. Beaudreau lists “DE Shaw Renewable

Investments” as a source of compensation. DE Shaw

Renewable Investments owned South Fork Wind LLC

(formerly Deepwater Wind South Fork LLC) before

selling it to 0rsted A/S, another offshore wind

developer from which Mr. Beaudreau received

compensation. Mr. Beaudreau’s Nominee Report lists

a Latham & Watkins income of $2.4 million. It

identifies the following offshore wind companies—

0rsted A/S, Avangrid Renewables, Vineyard Wind

LLC, Beacon Offshore Energy, TOTAL, innogy

Renewables US, Dominion Resources, Inc., DE Shaw

Renewable Investments, and Anbaric Development

Partners. See Beaudreau 2020 OGE Nominee Report

(id., 1994062-10). The Principal Deputy Assistant

Secretary for Land and Minerals Management

(L&MM), Ms. Laura Daniel-Davis, who signed

BOEM’s Record of Decision for SFW, was a Senior

Manager at Latham & Watkins (2001-2007). The

Director of BOEM, Elizabeth (Liz) Klein, was an

Associate at Latham & Watkins (2006-2010).

Counsel representing SFW, Ms. Janice Schneider of

Latham & Watkins, served as Assistant Secretary for

L&MM (2014-2017).

Officials in charge of our nation’s marine resources

at the DOI and BOEM are conflicted. This case leaves

no room for doubt that public officials blurred the lines

between serving the public and private interests and,

with the aid of the courts, attempted to conceal their

choice to further SFWs interests to the public

detriment.

The wrong message

By engaging in acts contrary to law constituting

fraud, BOEM implicitly condones unlawful conduct in

others, including developers operating offshore where

few people can see what they are doing. BOEM’s

reckless neglect and fraudulent conduct send a clear

message that developers need not comply with

regulations and safety standards because BOEM, the

regulator, does not. If a developer plans to build on a

contaminated site, the message is that BOEM will

help you cover it up and approve your project

regardless; after all, it did it for SFW. The message is

loud and clear: SFW does not have to comply with

federal environmental law, so why should we? If

federal regulators turn a blind eye to non-compliance

and fraudulent representations, and if the courts turn

to (unlawful) procedure to thwart proper judicial

review, developers and the public will likewise act

contrary to law.

Sending the wrong message regarding compliance

to developers operating in unforgiving, sensitive, and

critical ocean environments and onshore residential

communities is harmful (see BP Deepwater Horizon

Disaster on pp. 26-27).

Harm flows to the public from the message that

government acts in violation of statutory, equity,

common law, and constitutional law send. The public

will lose confidence in the regulatory and judicial

It demoralizes hardworking staff and

process.

scientists at government agencies and judges and

It implicitly condones

officials at courthouses,

unlawful acts by developers, regulators, and the

public. If government regulators violate the law and

judges ignore the people’s constitutional rights, the

Such acts erode our

public will do the same,

constitutional protections.

The harm is irreparable.

In Chaplaincy of Full Gospel Churches, the D.C.

Circuit finds the harm that flows from the ‘forbidden

message’ is irremediable—

[T]he inchoate, one-way nature of

Establishment Clause violations, which

inflict an ‘erosion of religious liberties

[that] cannot be deterred by awarding

damages to the victims of such erosion,’

City of St. Charles,19A F.2d at 275, we

are able to conclude that where a movant

alleges a violation of the Establishment

Clause, this is sufficient, without more,

to satisfy the irreparable harm prong for

purposes of the preliminary injunction

determination. [454 F.3d 290, 303 (D.C.

Cir. 2006)]

In this case, the harm resulting from the message

BOEM’s and the courts’ violations send also are of an

“inchoate, one-way nature ...” It includes the fishing

industry struggling to defend the livelihood of its

members, who rightly question the integrity of

BOEM’s decisions. It includes the petitioner, who

doubts the integrity of BOEM and the federal courts.

While Petitioner’s heart still holds hope, experience

tells him that a federal environmental review, like a

federal court, is a charade and the Constitution is like

an elusive mythical creature spoken about but never

experienced. This Court can make the constitutional

experience real.

Petitioner sends email updates to a list of over one

thousand people who forward his emails to others. He

posts information on his websites32 that are accessible

Petitioner communicates his

to the public,

experiences to countless others in an inchoate, one

way nature. Such a disparate group cannot receive

damages. An award of damages cannot remediate the

harm.

The FEIS states that other “[c]ooperating agencies

may rely on this final EIS to support their decision

making.” (FEIS, at ii, PDF 6, 3rd If). The U.S.

Environmental Protection Agency is a listed

cooperating federal agency (ROD, at 1, PDF 3, 2nd If).

Should the EPA rely on BOEM’s false representations

that “[o]verall, existing groundwater quality in the

analysis area appears to be good” (FEIS, at H-23, PDF

655), Wainscott will likely have problems securing

federal assistance from the EPA regarding the

remediation

of harmful

groundwater PFAS

contamination. This is another example of the harm

32 www.Wainscott.Life and www.oswSouthFork.info

from BOEM’s unlawful act of fraudulently stating

groundwater quality, sending the wrong message that

ripples through agencies by word of mouth. Wainscott

may not get the support it needs. Such harm is

irremediable.

3. The balance of equities favors Petitioner.

In each case, courts ‘must balance the

competing claims of injury and must

consider the effect on each party of the

granting or withholding of the requested

relief/ Amoco Production Co.,480 U.S., at

542, 107 S.Ct. 1396. ‘In exercising their

sound discretion, courts of equity should

pay particular regard for the public

employing

the

consequences

extraordinary remedy of injunction/

Romero-Barcelo,456 U.S., at 312, 102

S.Ct. 1798; see also Railroad Comm’n of

Tex. v. Pullman Co., 312 U.S. 496, 500,

61 S.Ct. 643, 85 L.Ed. 971 (1941). See

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008)

The balance of equities weighs the harm to

Petitioner without injunctive relief against the harm

to SFW with injunctive relief. Petitioner considers the

harm to Defendant Federal Agencies and the public

interest together. See Pursuing Am/ Greatness v. Fed.

Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016)

(“assessing the harm to the opposing party and

weighing the public interest ‘merge when the

Government is the opposing party’ ”).

Petitioner without injunctive relief

Petitioner jogs regularly along Beach Lane, where

SFW has installed underground infrastructure for

high-voltage transmission cables. The permanent

concrete duct banks and vaults encroach into

groundwater and are installed at the capillary fringe

of a contaminated sole-source aquifer. BOEM did not

perform the requisite ‘hard look’ environmental

review of the likely chemical interaction between

concrete and PFAS compound contaminants. Plaintiff

has cause to suspect SFW’s infrastructure will become

a secondary source of contamination and prolong its

harmful effects on the environment near his home.

Plaintiff swims and sails in the waters surrounding

the onshore construction corridor that is connected via

groundwater to SFW’s concrete duct banks and vaults.

Plaintiff has cause to suspect that SFW’s overpriced

renewable energy will increase the cost of electricity

and adversely impact the local economy more than

would have occurred had BOEM considered the

project’s cost and procurement manipulation. BOEM

engaged in fraud, denying Petitioner and the public

the right to a legally sufficient environmental review.

The federal courts repeatedly deny Petitioner his Fifth

Amendment right to a hair hearing on his claims.

Without immediate injunctive relief, the harm from

the uncertainty due to the lack of an environmental

review and the message unlawful government actions

send will continue inflicting harm.

SFW with injunctive relief (denying fruits of fraud)

SFW will argue (as it did in the district court) that

it “has already mobilized and begun its prep work ...

that includes bringing highly specialized equipment

that was reserved in advance of construction to the

site at great expense, approximately $40 million.”

(November 9, 2022, Hearing Tr., at 5:20-25). SFW

claims it will suffer potential economic injury should

the district court grant Petitioner an injunction.

However, the hearing occurred in November 2022,

after SFW had begun construction. SFW does not

explain why it failed to consider PFAS contamination

when it was widely known in 2017. Suffolk County

Department of Health Services issued a Water

Quality Advisory on October 11, 2017. See Kinsella

Affidavit, No. 22-5317, Doc. 1999552-02, 1 12)(App

41a). PFAS contamination in Wainscott was widely

publicized three years before SFW submitted its final

COP (May 7, 2021). On January 2, 2020, Petitioner

provided SFW with conclusive evidence of extensive

PFAS contamination (also provided to BOEM in

February 2021). See link (last accessed June 17,

2023)—

https://downloads.regulations.gov/BOEM-20200066-0386/attachment_13.pdf.

Despite knowing the extent of contamination for at

least a year before submitting its final COP, SFW did

not alter its plans.

In December 2022 and January 2021, SFW tested

its onshore construction corridor for PFAS

contamination for the first time. The test results

showed groundwater PFOA contamination (50 ppt),

exceeding regulatory limits five times (see No. 225317, Doc. 1999552-20, at 1, 5th column). Groundwater PFOS contamination (14.7 ppt) exceeds

regulatory limits (id., at 2, 8th column). SFWs testing

pre-dates its final COP (submitted on May 7, 2021) by

four months. SFW did not disclose its test results

showing PFAS contamination exceeding regulatory

limits that the EPA links to cancer and other severe

health problems (EPA FACT SHEET, on pp. 13-14)

but included other less harmful contaminants, such as

“median groundwater nitrogen levels ... [that] have

risen 40 percent to 3.58 mg/L”,33

SFW (falsely) claimed that its COP “provides a

description of water quality and water resource

conditions in the ... [onshore] SFEC [South Fork

Export Cable] as defined by several parameters

including: ... contaminants in water ...” 34 Despite a

clear duty to “[d]escribe the existing water quality

conditions and your project activities that could affect

water quality” (30 CFR 585.627(a)(2)), and to

“[djescribe the general state of water quality in the

area proposed for your project by reporting typical

metrics for quality including the ... presence or

absence of contaminants in water” (id.) and any

“environmental hazards and/or accidental events

causing accidental releases of... hazardous materials

and wastes” (id.), SFW remained silent on known

onsite PFAS contamination. See Kinsella Affidavit

(No. 22-5317, Doc. 1999552-02, 1)1 146-157)(App 63a67a).

SFW’s false representations of water quality satisfy

the requisite elements of fraud. The Petitioner can

“show by clear and convincing evidence” (Pyne v.

Jamaica Nutrition Holdings Ltd., supra) that SFW

made a “false representation of material fact which is

knowingly made” (id.) “The concealment of a fact that

should

have

been

disclosed

also

misrepresentation. Feltman v. Sarbov, 366 A.2d 137,

140-41 (D.C. 1976). Where a court finds that a party

had the duty to disclose material information and

33 See COP May 2021 (at 4-61, PDF 229, 1st t). See SFW COP at

boem.gov (under tab “Construction and Operations Plan”)—

www.boem.gov/renewable-energy/state-activities/south-fork

34 Id., (at 4-56, PDF 224, 1st f)

failed to do so, there is an even greater likelihood that

the nondisclosure will constitute fraud. Pyne v.

Jamaica Nutrition Holdings, Ltd.,497 A.2d 118,

131 (D.C. 1985)” Sage v. Broadcasting Publications,

Inc., 997 F. Supp. 49, 52 (DDC 1998). According to

BOEM, SFW had a duty to disclose—

Pursuant to 30 C.F.R. § 585.627, the

Lessee [SFW] must submit information

and certifications necessary for BOEM to

comply with the National Environmental

Policy Act of 1969 (NEPA)8 and other

relevant laws, [n.8 “42 U.S.C. § 4321 et

seq.] See ROD (at D-5, PDF 97, third

paragraph)

Contrary to its obligations, SFW did not submit to

BOEM its own test results showing onsite

groundwater PFAS contamination (but disclosed

SFW falsely

other less harmful contaminants),

represented groundwater quality by omission,

knowing it was contaminated, and sought project

approval. One “may infer ... that a person intends the

natural and probable consequences of acts knowingly

done or knowingly omitted” United States v. Williams

(supra).

The “probable consequence” of SFW

knowingly omitting environmental contamination

would likely lead to BOEM‘s approval of its Project.

The final element of fraud is an “action [that] is

taken in reliance upon the misrepresentation.” Pyne v.

Jamaica Nutrition Holdings Ltd., (supra). Petitioner

relied on the accuracy of SFW’s COP and has read it

several times out of concern that SFW would cause

harm to him, his family, his community, and his

environment. His concerns have proved to be wellfounded. SFW’s actions constitute (civil) fraud.35

In Simon Schuster v. Crime Victims Bd., this Court

“recognized the ‘fundamental equitable principle,’ ...

that ‘[n]o one shall be permitted to profit by his own

fraud, or to take advantage of his own wrong, or to

found any claim upon his own iniquity ...’ ” (502 U.S.

105, 119 (1991)). It is inconsistent with fundamental

equitable principles for SFW “to profit by his own

fraud” (id.), that is, the fraud when it knowingly

omitted PFAS contamination from its COP that

materially misrepresented groundwater quality and

seeking “to take advantage of [its] own wrong” (id.) by

using its construction (obtained by fraudulent

representations) to defeat injunctive relief, SFW

wants to keep what it gained through fraud despite

the ongoing risks to public health and the

environment absent a legally sufficient review.

4. Injunctive relief favors the public interest.

The case cries out for this Court to defend the

public interest in having agencies comply with their

statutorily mandated obligations and for courts to

uphold the Constitution by granting Petitioner a

fair hearing on his fraud claims.

There is generally no public interest in

the perpetuation of unlawful agency

action. PAG, 831 F.3d at 511-12, 2016

WL 4087943, at *8; Gordon v. Holder,

721 F.3d 638, 653 (D.C. Cir. 2013). To

the contrary, there is a substantial

public interest “in having govern[-]

35 SFW’s COP may have violated 18 U.S.C. § 1001.

mental agencies abide by the federal

laws that govern their existence and

operations.” Washington v. Reno, 35

F.3d 1093, 1103 (6th Cir. 1994). See

League of Women Voters of U.S. v.

Newby, 838 F.3d 1, 12 (D.C. Cir. 2016).

There is a public interest in courts guaranteeing

Fifth Amendment rights to due process of law,

including a fair hearing. “The public interest favors

the protection of constitutional rights, see, e.g., Gordon

v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)”

Archdiocese of Wash. v. Wash. Metro. Area Transit

Auth., 897 F.3d 314, 335 (D.C. Cir. 2018).

Federal Defendants may argue that “the Project

materially furthers federal renewable energy goals”36

as they did in the D.C. Circuit. However, SFW’s wind

farm (130 MW) represents only one-third of one

percent of U.S. approved offshore wind generating

capacity (39,021 MW);37 thus, it is not material. On

the contrary, granting injunctive relief at this early

stage of offshore wind development would send the

industry and regulators a message that the nation

expects higher standards. This Court could send that

message without materially affecting offshore wind

resources’ overall generating capacity.

CONCLUSION

This Court recognized in Percoco v. United States

that “an agent of the government has a fiduciary duty

to the government and thus to the public it serves”

36 See D.C. Cir., No 22-5316, Doc. 1982686 (at 23)

37 Mayflower Wind’s DEIS (February 2023), Volume II: Appendix

D (D.C. Cir., No. 22-5317, Doc. 1994062-07, at 3). Table D2-1:

OCS Total Generating Capacity (MW) is “39,021”

— S. Ct. —, 2023 WL

(No. 21-1158, 598 U.S. 3356527 (May 11, 2023)). It follows that if such agent

has a fiduciary duty, then actual public officials

employed by the government have a fiduciary duty to

the public they serve. Here, clear and convincing

evidence shows that public officials violated their

fiduciary duty and engaged in common law fraud.

Simply put, it cannot be that fraud by a federal

regulatory agency is acceptable.

Petitioner has no alternative remedy.

For the reasons stated herein, Petitioner

respectfully requests that this Court grant his

Petition for a Writ of Certiorari.

Respectfully submitted this 22nd day of June 2023,

’a

SimonlV. Kinsella,

Petitioner pro se

P.O. Box 792,

Wainscott, NY 11975

Tel: (631) 903-915

Si@oswSouthFork.info

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.