Petition for Writ of Certiorari — Responsible Offshore Development Alliance, a D.C. Nonprofit Corporation, Petitioner v. Department of the Interior, et al.

No. 24In the

Supreme Court of the United States

RESPONSIBLE OFFSHORE

DEVELOPMENT ALLIANCE,

Petitioner,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

Nancie G. Marzulla

Counsel of Record

Roger J. Marzulla

Marzulla Law, LLC

1150 Connecticut Avenue, NW,

Suite 1050

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

Counsel for Petitioner

March 5, 2025

120330

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

Section 1337(p)(4) of the Outer Continental Shelf

Lands Act1 requires that the Secretary “shall ensure” that

any approved activity under this subsection provides for

the protection of twelve categories, including “use of the

sea or seabed for a fishery.” 2 In approving the Vineyard

Wind Project, the Secretary newly interpreted the “shall

ensure” language to require only that these factors be

“considered” or “balanced” against the importance of the

new offshore wind energy program, ignoring the Project’s

devastating impacts on the fishing industry. The First

Circuit adopted the Secretary’s new interpretation. 3

Should the Court grant this petition to review the

Secretary’s April 2021 interpretation of Section 1337(p)

(4) so that federal administration of the nation’s ocean

energy program and approval of offshore wind turbine

projects are consistent with Congress’s requirement that

the Secretary ensure “prevention of interference with

reasonable uses,” including consideration of the “use of

the sea or seabed for a fishery?”4

1. 43 U.S.C. § 1337(p)(4).

2. 43 U.S.C. § 1337(p)(4)(J)(ii).

3. See U.S. Dep’t. of the Interior, Off. of the Solicitor, M-37067

at 5 (Apr. 9, 2021) (April 2021 Memorandum).

4. 43 U.S.C. § 1337(p)(4)(J)(ii).

ii

PARTIES TO THE PROCEEDINGS

Petitioner, Responsible Offshore Development

Alliance, was Plaintiff-Appellant in the First Circuit.

Respondents, the United States, acting through the

U.S. Bureau of Ocean Energy Management, National

Oceanic and Atmospheric Administration, National

Marine Fisheries Service, United States Army Corps

of Engineers, the Secretary of the Interior, the Director

of the Bureau of Ocean Energy Management, the

Administrator of the National Oceanic and Atmospheric

Administration, the Acting Assistant Secretary of the

Army for Civil Works, and Vineyard Wind 1 LLC, were

Defendant-Appellees in the court below.

iii

CORPORATE DISCLOSURE

The Responsible Offshore Development Alliance is a

501(c)(6) non-profit trade association corporation. It has

no parent corporation, and no publicly held company owns

10% or more of its stock.

iv

STATEMENT OF RELATED CASES

In the district court, this case was consolidated with

Seafreeze Shoreside, Inc. v. U.S. Department of the

Interior, No. 22-cv-11091-IT, U.S. District Court for the

District of Massachusetts, Judgment entered October

12, 2023. The First Circuit consolidated the cases for

argument and issued a single opinion, which Seafreeze

and Petitioner ask this Court to review. See Seafreeze

Shoreside, Inc. v. U.S. Department of the Interior, No.

23-1853, U.S. Court of Appeals for the First Circuit,

Judgment entered December 5, 2024.

v

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF RELATED CASES . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY AND REGULATORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

1.

Statutory and Regulatory Framework . . . . . . . . 1

A. Energy Policy Act of 2005 . . . . . . . . . . . . . . . 1

B. Applicable Regulations . . . . . . . . . . . . . . . . . 3

vi

Table of Contents

Page

C. Depa r t ment of I nt er ior Is sue s

Conf licting Interpretations of the

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

D. The President Announces His Bold,

Ne w P l a n f o r O f f s h o r e W i n d

Development . . . . . . . . . . . . . . . . . . . . . . . . . . 5

REASONS FOR GRANTING THE PETITION . . . . . 6

1.

Review by this Court Is Necessary to

Determine Whether “Shall Ensure” in

Section 1337(p)(4) Means What Congress

Said It Means and Whether the Secretary

Can Read That Provision Out of the Statute . . . 8

2.

This Issue Is Also Vitally Important to

the Fishing Industry and Others Who Use

and Enjoy the Outer Continental Shelf . . . . . . . 14

3.

The Interior Department Has Undertaken a

Massive, Accelerated Program Approving the

Construction of Thousands of Offshore Wind

Turbines on the Outer Continental Shelf . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT, FILED DECEMBER 5, 2024 . . . 1a

A PPENDI X B — MEMOR A NDUM A ND

OR DER OF T H E U N I T ED S TAT E S

DISTRICT COURT FOR THE DISTRICT

OF M A SSACHUSETTS, FILED

OCTOBER 12, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 48a

A P P E N DI X C — C ON S T I T U T ION A L

PROVISION INVOLVED — 43 U.S.C.A. § 1332 . . 108a

A P P E N DI X D — C ON S T I T U T ION A L

PROVISION INVOLVED – 43 U.S.C.A. § 1337 . . . 111a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Ass’n of Civilian Technicians, Montana Air

Chapter No. 29 v. Fed. Lab. Rels. Auth.,

22 F.3d 1150 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . 12

Dubois v. U.S. Dep’t of Agric.,

102 F.3d 1273 (1st Cir. 1996) . . . . . . . . . . . . . . . . . . . 13

Heating, Air Conditioning & Refrigeration

Distributors Int’l v. Env’t Prot. Agency,

71 F.4th 59 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . . . 13

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Responsible Offshore Development Alliance v.

U.S. Department of the Interior,

123 F.4th 1 (1st Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Sklar,

920 F.2d 107 (1st Cir. 1990) . . . . . . . . . . . . . . . . . . . . 12

Statutes, Regulations and Other Authorities

16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 U.S.C. § 994(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ix

Cited Authorities

Page

43 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

43 U.S.C. § 1331(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

43 U.S.C. § 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

43 U.S.C. § 1334(p)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

43 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

43 U.S.C. § 1337(p)(4) . . . . . . 2-6, 8, 9, 11, 13-15, 17, 18, 22

43 U.S.C. § 1337(p)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

43 U.S.C. § 1337(p)(4)(I) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

43 U.S.C. § 1337(p)(4)(J) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9

30 C.F.R. § 585.102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

30 C.F.R. § 585.102(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

30 C.F.R. § 585.621(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Biden Administration, Fact Sheet: Biden

Administration Jumpstarts Offshore Wind

Energy Projects to Create Jobs (Mar. 29, 2021),

https://bidenwhitehouse.archives.gov/briefingroom/statements-releases/2021/03/29/factsheet-biden-administration-jumpstarts-offshorewind-energy-projects-to-create-jobs/ . . . . . . . 5, 18, 19

x

Cited Authorities

Page

Bu r e au of O c e a n Ene r g y M a n a g e ment ,

Construction and Operations Plan Approval

Letter (July 15, 2021), https://www.boem.gov/

sites/default /files/documents/renewableenergy/state-activities/ V W1-COP-ProjectEasement-Approval-Letter_0.pdf . . . . . . . . . . . . . . . 19

Bureau of Ocean Energy Management, COP

Addendum Approval (Jan. 17, 2025), https://

www.boem.gov/sites/default/files/documents/

renewable-energ y/ V W1-Blade-RemovalCOP-Revision-Approval-Letter.pdf . . . . . . . . . . . . . 21

Bureau of Ocean Energy Management, Lease

and Grant Information, https://www.boem.

gov/renewable - energ y/ lease -and-g rant information (last accessed Feb. 28, 2025) . . . . . . . . . 7

Bu r e au of O c e a n Ene r g y M a n a g e ment ,

Renewable Leases and Planning Areas (Mar.

4, 2025), https://boem.maps.arcgis.com/apps/

instant/sidebar/index.html?appid=e20797

73d85b43059abf15a16bce7aa7&locale=en . . . . . . . . . 6

Bureau of Ocean Energy Management, Vineyard

Wind 1, LLC, Construction and Operations Plan

Addendum (Dec. 16, 2024), https://www.boem.

gov/sites/default/files/documents/renewableenergy/VW1%20COP%20Revision-Blade%20

Removal%20Updated.pdf . . . . . . . . . . . . . . . . . . . . . . 21

xi

Cited Authorities

Page

Bu r e au of O c e a n Ene r g y M a n a g e ment ,

Vineyard Wind 1 Final Environmental

Impact Statement (Mar. 2021), https://www.

boem.gov/sit es/default /f i les/documents/

renewable-energy/state-activities/VineyardWind-1-FEIS-Volume-1.pdf . . . . . . . . . . . . . . 16, 17, 20

Bureau of Ocean Energy Management, Vineyard

Wind 1 Record of Decision (May 10, 2021), https://

www.boem.gov/sites/default/files/documents/

renewable-energy/state-activities/Final-Recordof-Decision-Vineyard-Wind-1.pdf . . . . . . . . . . . 14-17, 19

Bureau of Safety and Environmental Enforcement,

BSEE Issues New Order to Vineyard Wind

in Continuing Investigation (Dec. 19, 2024),

https://www.bsee.gov/newsroom/latest-news/

statements-and-releases/press-releases/bseeissues-new-order-to-vineyard-wind . . . . . . . . . . 20, 21

Bureau of Safety and Environmental Enforcement,

Suspension Order for the Vineyard Wind 1 Project

(July 15, 2024), https://www.bsee.gov/sites/bsee.

gov/files/2024-09/Order%20VW%20AW-38%20

Blade%20Failure%2015July2024.pdf . . . . . . . . . . . . 21

Dept. of Energy, Advancing Offshore Wind

Energy in the United States (Mar. 29, 2023),

ht t p s: // w w w. e n e r g y. g o v/s it e s /d e f a u lt /

files/2023-03/ advancing-offshore-wind-energyfull-report.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

xii

Cited Authorities

Page

Energ y Pol ic y A c t of 2 0 0 5 , PL 10 9 – 5 8 ,

August 8, 2005, 119 Stat. 594 . . . . . . . . . . . . . . . . . . . . 6

Adele Irwin, Offshore Wind Energy or Domestic

Seafood? How the Department of the Interior

Can Facilitate Both Through Self-Binding

Procedures, 96 St. John. L.R. 517 (2022) . . . . . . . . . . 5

NOA A, Fisheries Economics of the United

States 2022: Economics and Sociocultural

Status and Trends Ser ies (Nov. 2 02 4),

h t t p s : / / m e d i a .w b u r. o r g / w p / 2 0 2 5 / 0 1 /

FEUS-2022-SPO248B-compressed.pdf . . . . . . . . . . . 8

United States A r my Corps of Eng ineers,

Record of Decision Supplement (Aug. 4,

2021), https://www.boem.gov/sites/default/

files/documents/renewable-energy/stateactivities/USACE-ROD-Supplement-2021.pdf . . . . 19

U.S. Dep’t. of the Interior, Off. of the Solicitor,

M-37059, Mem. on Secretary’s Duty to Prevent

Interference with Reasonable Uses of the

Exclusive Economic Zone, the High Seas,

and the Territorial Seas in Accordance with

Outer Continental Shelf Lands Act Subsection

8(p), Alternate Energy-related Uses on the

Outer Continental Shelf (Dec. 14, 2020) . . . . . . . 4, 10

U.S. Dep’t. of the Interior, Off. of the Solicitor,

M-37067 (Apr. 9, 2021) . . . . . . . . . . . . . . . . . . . . 4, 5, 10

1

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the First Circuit is reported as Responsible Offshore

Development Alliance v. U.S. Department of the Interior,

123 F.4th 1 (1st Cir. 2024), decided on Dec. 5, 2024, and

reproduced in the appendix hereto (“Pet. App.”) at 1a.

The opinion of the District Court for the District of

Massachusetts is reported at 2023 WL 6691015 (D. Mass.

Oct. 12, 2023) and is reproduced at Pet. App. 48a.

JURISDICTION

The judgment of the First Circuit was entered on

Dec. 5, 2024. Pet. App. 1a. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The relevant provisions of the Outer Continental Shelf

Lands Act, 5 are reproduced at Pet. App. 108a.

STATEMENT OF THE CASE

1. Statutory and Regulatory Framework

A.

Energy Policy Act of 2005

The Energy Policy Act of 2005 authorized the

Secretary of the Interior to issue leases and approve

5. See 43 U.S.C. § 1331.

2

the construction of offshore wind facilities to generate

electricity on the outer Continental Shelf.6 The statute

states, “[i]t is hereby declared to be the policy of the

United States that . . . this subchapter shall be construed

in such a manner that the character of the waters above

the outer Continental Shelf as high seas and the right to

navigation and fishing therein shall not be affected.” 7

Section 388 of the Energy Policy Act, later codified

as 43 U.S.C. § 1337(p)(4) of the Outer Continental Shelf

Lands Act, provides:

The Secretary shall ensure that any activity

under this subsection is carried out in a manner

that provides for—

(A) safety;

...

(I) prevention of interference with reasonable

uses (as determined by the Secretary) of the

exclusive economic zone, the high seas, and

the territorial seas;

6. Outer Continental Shelf means “all submerged lands lying

seaward and outside of the area of lands beneath navigable waters

as defined in section 1301 of this title, and of which the subsoil

and seabed appertain to the United States and are subject to its

jurisdiction and control or within the exclusive economic zone of

the United States and adjacent to any territory of the United

States; and [ ] does not include any area conveyed by Congress

to a territorial government for administration[.]” See 43 U.S.C.

§ 1331(a).

7. 43 U.S.C. § 1332.

3

(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 sea

lane, a potential site of a deepwater

port, or navigation[.]

B. Applicable Regulations

The regulations to implement the requirements of 43

U.S.C. § 1337(p)(4) appear at 30 C.F.R. § 585.102 and state:

“[The Bureau of Ocean Energy Management] will ensure

that any activities authorized in this part are carried out in

a manner that provides for and reaches a rational balance

among the following goals to the extent they conflict or are

otherwise in tension, none of which inherently outweighs

or supplants any other[.]”8

The regulations deviate from the statute in two

important respects: they omit the requirement that the

agency “shall ensure” these requirements are provided

for, and they omit the requirement that the agency

consider other uses of the outer Continental Shelf “for a

fishery, a sealane, a potential site of a deepwater port, or

navigation[.]” 9

8. 30 C.F.R. § 585.102.

9. 43 U.S.C. § 1337(p)(4)(I), (J) (emphasis added).

4

C.

Department of Interior Issues Conflicting

Interpretations of the Act

In December 2020, the Interior Department published

its interpretation of Section 1337(p)(4),10 concluding that,

under a plain reading of the provision, the Secretary has a

duty to protect fisheries and vessel transit and that those

uses constitute “reasonable uses” that the “Secretary

has a duty to prevent interference with” under Section

1337(p)(4).11

In January 2021, a new president was sworn in, and

three months later, the Department of Interior withdrew

its December 2020 opinion memorandum and announced

its new interpretation of the statute—which was just the

opposite of the December 2020 interpretation.12 This new

interpretation swept away the statute’s “shall ensure”

requirement and stated that instead of a strict reading,

the statute should be read to require only “discretionary

balancing” of factors, including unreasonable interference

with fishing, which did “not require the Secretary

to ensure that the [requirements of 1337(p)(4)] are

achieved to a particular degree,”13 but “need only be

10. See U.S. Dep’t. of the Interior, Off. of the Solicitor,

M-37059, Mem. on Secretary’s Duty to Prevent Interference with

Reasonable Uses of the Exclusive Economic Zone, the High Seas,

and the Territorial Seas in Accordance with Outer Continental

Shelf Lands Act Subsection 8(p), Alternate Energy-related Uses

on the Outer Continental Shelf (Dec. 14, 2020) (December 2020

Memorandum).

11. Id. at 6.

12. April 2021 Memorandum supra note 3 at 1-2.

13. Id. at 5.

5

‘rational.’”14 The regulations governing offshore wind

projects are based on this opinion.

D.

The President Announces His Bold, New Plan

for Offshore Wind Development

In March 2021, the administration identified a series

of “bold actions” to “catalyze offshore wind energy”

development. 15 The White House stated its goal of

deploying 30 gigawatts of offshore wind energy by 2030

and announced that it was taking “coordinated steps to

support rapid offshore wind deployment.”16 To meet the

2030 target, the administration announced its plans to

advance new lease sales and complete the review of “at

least 16 Construction and Operations Plans (COPs) by

2025.”17 To accomplish this objective, the administration

generously construed its statutory duties to enforce

environmental protection requirements, notably Section

1337(p)(4).

Vineyard Wind was the first offshore wind energy

project approved by the Interior Department. The First

14. Adele Irwin, Offshore Wind Energy or Domestic Seafood?

How the Department of the Interior Can Facilitate Both Through

Self-Binding Procedures, 96 St. John. L.R. 517, 532 (2022) (quoting

April 2021 Memorandum supra note 3 at 2).

15. Biden Administration, Fact Sheet: Biden Administration

Jumpstarts Offshore Wind Energy Projects to Create Jobs (Mar.

29, 2021), https://bidenwhitehouse.archives.gov/briefing-room/

statements-releases/2021/03/29/fact-sheet-biden-administrationjumpstarts-offshore-wind-energy-projects-to-create-jobs/ (Fact

Sheet).

16. Id.

17. Id.

6

Circuit’s decision is the first appellate ruling interpreting

Section 1337(p)(4) of OCSLA. As of today, approximately

35 offshore wind projects are in various stages of approval

or construction along the Atlantic coast, all of which will

be located in, along, or near vital commercial fishing lanes

and fishing grounds.18

REASONS FOR GRANTING THE PETITION

This petition raises an issue of vital importance of

precedential value regarding the proper interpretation of

Section 1337(p)(4) that governs the industrial development

of the nation’s outer Continental Shelf. Under an April

2021 interpretation of this provision, which reads the term

“shall ensure” out of the statute, the federal government

rushed through the approval of leases covering millions

of acres of the ocean to construct thousands of massive

wind turbines into the Atlantic Ocean floor. Construction

and operation of these turbines will forever change the

character of the marine environment and the use of

the high seas for trade, navigation, fishing—and public

enjoyment of all kinds.

In 2005, Congress authorized the Secretary of the

Interior to allow the construction of offshore wind projects

on the outer Continental Shelf.19 Exercising that statutory

authority, the Secretary has leased 3,261,124 acres of

18. Bureau of Ocean Energy Management, Renewable

Leases and Planning Areas (Mar. 4, 2025), https://boem.maps.

arcgis.com/apps/instant/sidebar/index.html?appid=e2079773d8

5b43059abf15a16bce7aa7&locale=en.

19. Energy Policy Act of 2005, PL 109–58, August 8, 2005,

119 Stat. 594.

7

the Continental Shelf 20 and approved the construction of

thousands of massive wind turbine generators, thousands

of miles of undersea high-voltage power lines connecting

them to onshore power stations, and hundreds of square

miles of boulders and concrete mattresses covering

the seabed to support and protect these structures on

the leased areas. Many other offshore wind generation

projects are at various stages of planning and approval.

This is the first case interpreting the limits of the

Secretary’s discretion under this statute. The Vineyard

Wind Project, now under construction in a 75,000-acre

area offshore Massachusetts, is the first offshore wind

facility approved by the Secretary and the first to reach

the appellate court.

The offshore wind turbine projects threaten the

survival of our nation’s commercial fishing industry,

including the businesses and livelihoods of Petitioner’s, the

Responsible Offshore Development Alliance (the Alliance),

members. These turbine generators, surrounded by

thousands of tons of rock and concrete, connected to

onshore electrical substations by thousands of miles of

high-voltage electrical cables, are increasingly blocking

access to essential fishing grounds, excluding commercial

fishermen and their vessels from their historic fishing

areas by making it inaccessible to fish in those areas

with traditional methodology such as nets or dredges,

creating dangerous navigation hazards and obstacles, and

20. Bureau of Ocean Energy Management, Lease and Grant

Information, https://www.boem.gov/renewable-energy/leaseand-grant-information (last accessed Feb. 28, 2025) (The leasing

history and acreage for each active offshore wind project are

located on the Bureau of Ocean Energy Management’s websites

in this list.).

8

threatening the livelihood of commercial fishermen from

Maine to North Carolina.

Fishing has a rich history in coastal communities

across the United States, providing jobs, significant

economic value, and food security to our nation. In recent

years, the commercial fishing industry generated $183

billion in sales, $47.2 billion in income and $74 billion in

value-added impacts. 21 The industry supports 1.6 million

jobs, including almost 214,000 jobs in Massachusetts

alone. 22

1. Review by this Court Is Necessary to Determine

Whether “Shall Ensure” in Section 1337(p)(4)

Means What Congress Said It Means and Whether

the Secretary Can Read That Provision Out of the

Statute

The extent of the Secretary’s statutory authority

to approve the Vineyard Wind Project and other

projects in the approval pipeline rests squarely on the

meaning of Section 1337(p)(4) of the Outer Continental

Shelf Lands Act, which sets out a dozen requirements

that the Secretary “shall ensure” are met for any

activity approved under the statute. 23 Among those

requirements are “[s]afety,” “prevention of interference

with reasonable uses (as determined by the Secretary) of the

21. NOAA, Fisheries Economics of the United States 2022:

Economics and Sociocultural Status and Trends Series (Nov.

2024) at 5, https://media.wbur.org/wp/2025/01/FEUS-2022SPO248B-compressed.pdf.

22. Id. at 5.

23. 43 U.S.C. § 1334(p)(4).

9

exclusive economic zone, the high seas, and the territorial

seas,” and

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[.] 24

The Department of Interior has published inconsistent

and diametrically opposite regulations and opinions

interpreting what this provision requires of the Secretary,

illustrated in the way the Interior Department has,

in the past few years, exalted offshore wind facility

construction over the commercial fishing industry. In its

initial regulations promulgated after Section 1337(p)(4)

was enacted, the Interior Department included a provision

that required a lessee to demonstrate in its Construction

and Operations Plan that the proposed activities will not

“unreasonably interfere with other uses of the [outer

Continental Shelf].” 25

In September 2020, an attorney in the Minerals

Management Division of the Solicitor’s Office authored

an opinion for the Bureau of Ocean Energy Management

(BOEM), stating that “prevention of interference with

reasonable uses of the exclusive economic zone, the

high seas, and the territorial seas,” meant that “BOEM

24. 43 U.S.C. § 1337(p)(4)(A), (I), (J).

25. 30 C.F.R. § 585.621(d).

10

should prevent interference with the legal right to fish or

navigate, rather than prevent physical impediments to

fishing and vessel transit.” 26

In December 2020, at the Secretary’s request, the

Interior Solicitor reviewed that opinion, and authored a

new, formal Solicitor’s Opinion stating that “the phrase

requires the Secretary to act to prevent interference

with reasonable uses in a way that errs on the side of less

interference rather than more interference. This means

preventing all interference, if the proposed activity would

lead to unreasonable interference.” 27

Fou r mont hs lat er, fol low i ng t he cha nge i n

administration, the new Interior Department Solicitor

made an abrupt about-face and withdrew the December

2020 opinion. 28 In an April 2021 formal opinion, the new

Solicitor concluded that the statute

require[s] only that the Secretary strike

a rationa l ba la nce bet ween Cong ress’s

enumerated goals, i.e., a variety of uses. In

making this determination, the Secretary

retains wide discretion to weigh those goals

as an application of her technical expertise

and policy judgment. . . . I hereby withdraw

the Opinion and advise the Secretary that, for

purposes of subsection 8(p)(4) of OCSLA, her

actions must strike a rational balance between

the subsection’s enumerated goals. 29

26. December 2020 Memorandum supra note 10 at 1.

27. Id. at 2.

28. April 2021 Memorandum supra note 3.

29. Id. at 2.

11

Armed with this new interpretation of the statute,

the Interior Department promulgated a new regulation

that interpreted the statutory requirement as virtually

meaningless, giving the Secretary almost unlimited

discretion to approve any offshore wind turbine generator

project: “BOEM will ensure that any activities authorized

in this part are carried out in a manner that provides for

and reaches a rational balance among the following goals

to the extent they conflict or are otherwise in tension, none

of which inherently outweighs or supplants any other.” 30

The district court rejected Petitioner’s challenge to

this interpretation, adopting the most recent Solicitor’s

opinion to rule that OCSLA g ives the Secretary

“discretion” to see that the criteria of Section 1337(p)(4)

are “appropriately balanced.”31 Ignoring the plain meaning

of the language that “[t]he Secretary shall ensure,” the

Secretary concluded that the twelve requirements were

merely goals because “Congress has recognized the

importance of leasing on the Outer Continental Shelf in

support of energy projects.”32 The First Circuit affirmed

the district court’s interpretation, adding that the

Secretary can “‘balance’ the statutory mandate to develop

energy projects on the Outer Continental Shelf with the

twelve statutory criteria for which it must provide.” 33

This Court has consistently held that the phrase “shall

[e]nsure” 34 means what it says, and deprives an agency

30. 30 C.F.R. § 585.102(a).

31. Pet. App. 100a.

32. Pet. App. 105a.

33. Pet. App. 45a.

34. Many federal statutes state “shall insure” instead of

“shall ensure.” Courts and Congress have used the two words

12

or its officials of discretion or flexibility. 35 In National

Association of Homebuilders,36 this Court interpreted the

Endangered Species Act, which states, “[e]ach Federal

agency shall . . . insure that any action authorized, funded,

or carried out by such agency . . . is not likely to jeopardize

endangered or threatened species or their habitats” 37 as

imperative, mandatory, and non-discretionary, stating:

The word ‘shall’ generally indicates a command

that admits of no discretion on the part of the

person instructed to carry out the directive”[];

Black’s Law Dictionary 1375 (6th ed. 1990)

(“As used in statutes . . . this word is generally

imperative or mandatory”). 38

The First Circuit has also interpreted Congress’s

selection of the word “ensure” as a “crystal clear” sign

that Congress was prescribing necessary processes and

setting forth directives that must be guaranteed. 39 And

interchangeably in opinions and statutes. See Nat’l Ass’n of Home

Builders v. Defs. of Wildlife, 551 U.S. 644, 667 (2007).

35. See National Ass’n of Home Builders, 551 U.S. 644.

36. Id.

37. 16 U.S.C. § 1536(a)(2).

38. National Ass’n of Home Builders, 551 U.S. at 667 (quoting

Ass’n of Civilian Technicians, Montana Air Chapter No. 29 v. Fed.

Lab. Rels. Auth., 22 F.3d 1150, 1153 (D.C. Cir. 1994)).

39. See United States v. Sklar, 920 F.2d 107, 115 (1st Cir. 1990)

(quoting 28 U.S.C. § 994(k)) (The use of “shall ensure” to prohibit

using rehabilitation as a reason for departure in sentencing was a

“crystal clear” sign “that Congress largely rejected rehabilitation

as a direct goal of criminal sentencing under the guidelines.”);

13

the D.C. Circuit has rejected the argument that the use

of ensure “reflects Congress’s intentional effort to confer

flexibility” on an agency,40 holding that to “‘ensure’ is ‘to

make sure, certain, or safe.’”41

If Congress intended to give the Secretary discretion

or f lexibility to balance the twelve requirements

prescribed in Section 1337(p)(4) with renewable energy

policies, as the Interior Department argues and the

First Circuit erroneously affirmed, Congress would

have written such a balancing test into OCSLA. Instead,

Congress directed the Secretary—giving the Secretary

no discretion or flexibility—to ensure that authorized

activities provide for, among others, safety, prevention of

interference with commercial fishing and navigation on

the outer Continental Shelf, and consideration of the use

of the sea for fishing and navigation.

With sharply conf licting Solicitor’s opinions,

regulations, and case law, the Secretary cannot be

expected to administer this massive offshore wind

construction and energy program as Congress intended

without review and guidance by this Court.

Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273 (1st Cir. 1996) NEPA’s

ensure requirement signaled that Congress was prescribing a

“necessary process” for environmental review.).

40. Heating, Air Conditioning & Refrigeration Distributors

Int’l v. Env’t Prot. Agency, 71 F.4th 59, 66–67 (D.C. Cir. 2023).

41. Id. (internal citations omitted).

14

2. This Issue Is Also Vitally Important to the Fishing

Industry and Others Who Use and Enjoy the Outer

Continental Shelf

The Vineyard Wind Project is the first approved of

approximately 35 offshore wind facilities (each facility

will have, on average, 95 turbines) in various stages of

government approval or under construction. Now well into

construction, Vineyard Wind illustrates the devastating

impact these projects will have on the nation’s commercial

fishing industry—whose continued viability, according to

the First Circuit, is a mere nonbinding “goal” that gives

way in the face of the importance of the government’s

offshore wind program.42

Unfortunately, the Vineyard Wind lease area overlaps

with one of the East Coast’s most productive fishing

zones, crucial for fluke, whiting, longfin squid, and more.

Members of Petitioner, the Alliance, a coalition of over

150 vessels and fishing companies, have historically

relied on this area for up to 30% of their annual revenue.

The construction of turbines, underwater cables, and

other obstacles has rendered fishing in this area nearly

impossible and perilous. The Government concedes that

the entire 75,614-acre area will likely be abandoned

by commercial fisheries due to the damage to fishing

resources and the navigational and safety hazards, with

an anticipated economic loss of $14 million.43

4 2 . Pet . App. 6a (“ To f u r ther these goals, OCSLA

authorizes . . . ); Pet. App. 98a (“[T]welve goals enumerated under

§ 1337(p)(4).”).

43. Bureau of Ocean Energy Management, Vineyard Wind

1 Record of Decision (May 10, 2021) at 39, https://www.boem.gov/

15

The obstacles presented by the turbines and cables

endanger the safety of the fishermen and disrupt

traditional fishing practices, including trawling operations

that rely on dragging equipment behind vessels to

capture fish. Those who can still access parts of the area

are experiencing a dramatic decline in their catch, with

fish populations dwindling due to the altered marine

environment.

The First Circuit, which approved this standardless

interpretation of Section 1337(p)(4), had before it the

administrative record, which details the catastrophic

effects of this ruling on commercial fishing and the

constraints imposed by location-specific, species-specific,

and sometimes gear or vessel specific fishing permits.

These permits restrict fishermen to designated areas,

meaning that even if they wished to relocate to more

productive waters, they are legally barred from doing so

without obtaining a separate and expensive permit. Under

this regulatory limitation, the challenges faced by the

fishing industry are exacerbated, leaving many fishermen

without viable alternatives to sustain their operations.

T he Vi neya rd Wi nd Record of Decision and

Environmental Impact Statement show that the Project

will destroy local fisheries—all of which the Secretary

“balanced away” as an exercise of her purportedly broad

discretion under the agency’s interpretation of Section

1337:

sites/default/files/documents/renewable-energy/state-activities/

Final-Record-of-Decision-Vineyard-Wind-1.pdf (emphasis added)

(Record of Decision).

16

• “The extent of impact to commercial fisheries and

loss of economic income is estimated to total $14

million over the expected 30-year lifetime of the

Project.”44

• “Disruption may result in conflict over other fishing

grounds, increased operating costs for vessels, and

lower revenue (e.g., if the substituted fishing area is

less productive or supports less valuable species).”45

• The Project “would have moderate to major impacts

on commercial fisheries.”46

• “[O]ffshore wind structures and hard coverage for

cables would have long-term impacts on commercial

fishing operations and support businesses such as

seafood processing.”47

• [T]he Project would include “permanent reduction

in catch or loss of access to fishing areas due to

the presence of construction activities or changes

in fish and shellfish populations that are the basis

of fishing activities . . . [including] abandonment of

44. Id.

45. Bureau of Ocean Energy Management, Vineyard Wind

1 Final Environmental Impact Statement (Mar. 2021) at 3-126,

https://www.boem.gov/sites/default/files/documents/renewableenergy/state-activities/ Vineyard-Wind-1-FEIS-Volume-1.pdf

(Final Environmental Impact Statement); see Final Environmental

Impact Statement at ES-13 (Major impacts to commercial fisheries

and for-hire recreational fishing when considering planned actions

and project impacts).

46. Id. at 3-226.

47. Id. at 3-129.

17

fishing locations due to difficulty in maneuvering

fishing vessels, fear of allisions with Proposed

Action components (e.g., WTGs), increased risk of

collisions with construction or lay vessels, and/or

fear of damage or loss of deployed gear.”48

The Record of Decision also states that “due to the

placement of the turbines, it is likely that the entire 75,614acre area will be abandoned by commercial fisheries

due to difficulties with navigation.”49 This destruction

of commercial fisheries, standing alone, defies OCSLA’s

requirement that the Secretary “shall ensure” “prevention

of interference with reasonable uses (as determined by the

Secretary) of the exclusive economic zone, the high seas,

and the territorial seas” and consideration of “any other

use of the sea or seabed, including use for a fishery[.]”50

Multiply the physical obstacles and environmental

destruction of Vineyard Wind by the approximately

35 other projects under construction or awaiting

approval, along with the devastating impacts on coastal

communities, shipping, navigation, aviation, and tribal

interests and the Department of Interior’s emphasis on

offshore development over the interests it must statutorily

protect and preserve puts the national importance of

this issue in sharp view. Without this Court’s guidance,

the offshore wind program will remain adrift, causing

needless destruction to the interests Congress required

the Interior Department to “ensure” were provided for

and protected.

48. Id. at 3-211.

49. Record of Decision supra note 43 at 39.

50. 43 U.S.C. § 1337(p)(4).

18

3. The Interior Department Has Undertaken a

Massive, Accelerated Program Approving the

Construction of Thousands of Offshore Wind

Turbines on the Outer Continental Shelf

In January 2021, President Biden issued Executive

Order 14008 outlining an aggressive program to combat

climate change by developing a clean energy supply. 51

In March 2021, the administration identified a series

of “bold actions” to “catalyze offshore wind energy”

development. 52 The White House stated its goal of

deploying 30 gigawatts of offshore wind energy by 2030

and announced that it was taking “coordinated steps

to support rapid offshore wind deployment.”53 To meet

the 2030 target, the administration announced that it

planned to advance new lease sales and review “at least

16 Construction and Operations Plans (COPs) by 2025.”54

Vineyard Wind 1 LLC, owned by Avangrid and

Copenhagen Infrastructure Partners through Vineyard

Wind LLC, marks the beginning of the government’s

“coordinated steps” to install approximately 35 projects

along the Atlantic Seaboard. This offshore wind program

will cover millions of acres of federal submerged lands with

thousands of turbines, thousands of miles of underwater

cables connecting the projects to the electric grid, and

51. Id.

52. Fact Sheet supra note 15.

53. Id.

54. Id.

19

thousands of acres of underwater construction, including

massive boulders and concrete mattresses. 55

On July 15, 2021, the Secretary of the Interior,

acting through BOEM, approved Vineyard Wind 1

LLC’s Construction and Operations Plan for an offshore

renewable energy project off the coast of Massachusetts,

authorizing the construction of up to 84 turbine towers

covering 65,296 acres of seabed. 56 BOEM also granted

Vineyard Wind an easement to construct 23.3 miles of

high-voltage electrical cable to carry power from the

turbines to an electrical substation to be constructed in

Barnstable, Massachusetts. 57

As noted, Vineyard Wind is only the first of more

than 30 enormous offshore wind energy facilities or

projects that the government intends to approve under

its plan to produce 30,000 megawatts of wind energy by

2030, covering millions of acres of ocean. Each of the

thousands of turbines will stand at hundreds of feet above

55. Fact Sheet supra note 15; see generally Dept. of Energy,

Advancing Offshore Wind Energy in the United States (Mar.

29, 2023), https://www.energy.gov/sites/default/files/2023-03/

advancing-offshore-wind-energy-full-report.pdf.

56. Bureau of Ocean Energy Management, Construction and

Operations Plan Approval Letter (July 15, 2021) at 1-3, https://

www.boem.gov/sites/default/files/documents/renewable-energy/

state-activities/VW1-COP-Project-Easement-Approval-Letter_0.

pdf.

57. Record of Decision supra note 43 at 30; see also United

States Army Corps of Engineers, Record of Decision Supplement

(Aug. 4, 2021) at 2, https://www.boem.gov/sites/default/files/

documents/renewable-energy/state-activities/USACE-RODSupplement-2021.pdf.

20

the ocean surface, require up to 2,500 square meters of

scour protection at each turbine foundation in the ocean’s

floor, and require additional materials for cable protection,

electrical substations, and more. 58

As of today, Vineyard Wind LLC has constructed, or

at least partially constructed, 47 of the 62 approved wind

turbines (each turbine stands 853 feet above the water and

is almost three times the size of the Statue of Liberty),

spaced one nautical mile apart. The 47 turbines have

already begun to adversely impact commercial fishermen,

nearby communities, and the ocean environment.

On July 13, 2024, a large portion of a 350-foot, 55ton fiberglass, Polyvinyl chloride, and polyethylene

terephthalate blade broke off a newly constructed turbine

in the Vineyard Wind Project, scattering thousands of

shards across the ocean’s surface and ocean floor. Over

the next few days, additional blade pieces also fell into the

ocean, adding to the mayhem. The Coast Guard sealed off

the area from ship transit, and the company attempted

to remove shards of the shattered blade from the ocean.

These efforts were largely unsuccessful, and tons of

debris (thousands of pounds) washed ashore not only in

Nantucket—closing its beaches—but were also carried

many miles away to wash up on Martha’s Vineyard, Cape

Cod, the beaches of Rhode Island, and even Montauk. The

government ordered Vineyard Wind to suspend work on

the project pending its investigation.59 In December 2024,

58. Final Environmental Impact Statement supra note 45

at ES-4–ES-5.

59. Bureau of Safety and Environmental Enforcement,

BSEE Issues New Order to Vineyard Wind in Continuing

21

the Bureau of Safety and Environmental Enforcement

issued a suspension order, suspending all Vineyard Wind

project operations.60 On January 17, 2025, BOEM approved

an addendum to the Construction and Operations Plan,

requiring the removal of blades from 22 turbines.61

Investigation (Dec. 19, 2024), https://www.bsee.gov/newsroom/

latest-news/statements-and-releases/press-releases/bsee-issuesnew-order-to-vineyard-wind; Bureau of Safety and Environmental

Enforcement, Suspension Order for the Vineyard Wind 1 Project

(July 15, 2024), https://www.bsee.gov/sites/bsee.gov/files/2024-09/

Order%20VW%20AW-38%20Blade%20Failure%2015July2024.

pdf.

60. Id.

61. See Bureau of Ocean Energ y Management, COP

Addendum Approval (Jan. 17, 2025), https://www.boem.gov/sites/

default/files/documents/renewable-energy/VW1-Blade-RemovalCOP-Revision-Approval-Letter.pdf; see also Vineyard Wind

1, LLC, Construction and Operations Plan Addendum (Dec.

16, 2024), https://www.boem.gov/sites/default/files/documents/

renewable - energ y/ V W1%2 0 COP %2 0Rev i sion-Bla de%2 0

Removal%20Updated.pdf.

22

CONCLUSION

Petitioner asks this Court to grant review of this issue

of vital importance to the fishing industry and to provide

guidance to the Secretary regarding the correct statutory

interpretation of “shall ensure” in Section 1337(p)(4) so

that future ocean energy projects are reviewed according

to the criteria provided by Congress.

Respectfully submitted,

Nancie G. Marzulla

Counsel of Record

Roger J. Marzulla

Marzulla Law, LLC

1150 Connecticut Avenue, NW,

Suite 1050

Washington, DC 20036

(202) 822-6760

nancie@marzulla.com

Counsel for Petitioner

Dated: March 5, 2025

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT, FILED DECEMBER 5, 2024 . . . 1a

A PPENDI X B — MEMOR A NDUM A ND

OR DER OF T H E U N I T ED S TAT E S

DISTRICT COURT FOR THE DISTRICT

OF M A SSACHUSETTS, FILED

OCTOBER 12, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . 48a

A P P E N DI X C — C ON S T I T U T ION A L

PROVISION INVOLVED — 43 U.S.C.A. § 1332 . . 108a

A P P E N DI X D — C ON S T I T U T ION A L

PROVISION INVOLVED – 43 U.S.C.A. § 1337 . . . 111a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT,

FILED DECEMBER 5, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 23-1853, No. 23-2051

SEAFREEZE SHORESIDE, INC.; LONG

ISLAND COMMERCIAL FISHING ASSOC., INC.;

XIII NORTHEAST FISHERY SECTOR, INC.;

HERITAGE FISHERIES, INC.; NAT. W., INC.;

OLD SQUAW FISHERIES, INC.,

Plaintiffs, Appellants,

v.

UNITED STATES DEPARTMENT OF THE

INTERIOR; HONORABLE DEBRA HAALAND,

IN HER OFFICIAL CAPACITY AS SECRETARY

OF THE DEPARTMENT OF THE INTERIOR;

BUREAU OF OCEAN ENERGY MANAGEMENT;

LIZ KLEIN, IN HER OFFICIAL CAPACITY AS

THE DIRECTOR OF THE BUREAU OF OCEAN

ENERGY MANAGEMENT; LAURA DANIELDAVID, IN HER OFFICIAL CAPACITY AS

PRINCIPAL DEPUTY ASSISTANT SECRETARY,

LAND AND MINERALS MANAGEMENT;

UNITED STATES DEPARTMENT OF COMMERCE;

HONORABLE GINA M. RAIMONDO, IN HER

OFFICIAL CAPACITY AS THE SECRETARY

OF THE DEPARTMENT OF COMMERCE;

NATIONAL OCEANIC AND ATMOSPHERIC

ADMINISTRATION, NATIONAL MARINE

FISHERIES SERVICE; CATHERINE MARZIN,

IN HER OFFICIAL CAPACITY AS THE DEPUTY

2a

Appendix A

DIRECTOR OF THE NATIONAL OCEANIC

AND ATMOSPHERIC ADMINISTRATION;

UNITED STATES DEPARTMENT OF DEFENSE;

HONORABLE LLOYD J. AUSTIN, III, IN HIS

OFFICIAL CAPACITY AS THE SECRETARY OF

THE DEPARTMENT OF DEFENSE; UNITED

STATES ARMY CORPS OF ENGINEERS; LT.

GEN. SCOTT A. SPELLMON, IN HIS OFFICIAL

CAPACITY AS THE COMMANDER AND CHIEF

OF ENGINEERS OF THE U.S. ARMY CORPS OF

ENGINEERS; COLONEL JOHN A. ATILANO, II,

IN HIS OFFICIAL CAPACITY AS THE DISTRICT

ENGINEER OF THE NEW ENGLAND DISTRICT

OF THE U.S. ARMY CORPS OF ENGINEERS;

VINEYARD WIND 1, LLC,

Defendants, Appellees.

RESPONSIBLE OFFSHORE DEVELOPMENT

ALLIANCE, A D.C. NONPROFIT CORPORATION,

Plaintiff, Appellant,

v.

UNITED STATES DEPARTMENT OF THE

INTERIOR; DEBRA HAALAND, IN HER

OFFICIAL CAPACITY AS THE SECRETARY OF

THE INTERIOR; BUREAU OF OCEAN ENERGY

MANAGEMENT; LIZ KLEIN, IN HER OFFICIAL

CAPACITY AS THE DIRECTOR OF THE BUREAU

OF OCEAN ENERGY MANAGEMENT; NATIONAL

MARINE FISHERIES SERVICE; RICHARD W.

SPINRAD, IN HIS OFFICIAL CAPACITY AS THE

ADMINISTRATOR OF THE NATIONAL OCEANIC

AND ATMOSPHERIC ADMINISTRATION;

3a

Appendix A

UNITED STATES DEPARTMENT OF THE ARMY;

CHRISTINE WORMUTH, IN HER OFFICIAL

CAPACITY AS SECRETARY OF THE ARMY;

UNITED STATES ARMY CORPS OF ENGINEERS;

JAMIE A. PINKHAM, IN HIS OFFICIAL

CAPACITY AS THE ACTING ASSISTANT

SECRETARY OF THE ARMY FOR CIVIL WORKS;

VINEYARD WIND 1, LLC,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT

OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Gelpí, Montecalvo, and Aframe

Circuit Judges.

December 5, 2024

AFRAME, Circuit Judge. These appeals challenge

the federal government’s process for approving a plan to

construct and operate a large-scale commercial offshore

wind energy facility.1 The facility, which began delivering

power to the New England grid in early 2024, is located

on the Outer Continental Shelf, some fourteen miles south

of Martha’s Vineyard and Nantucket. The plaintiffs are

entities involved in or associated with the commercial

fishing industry. The defendants are federal departments,

1. The appeals were briefed and argued separately, but we

address them together in this opinion.

4a

Appendix A

agencies, and officials responsible for the plan approval

process, as well as the business entity that successfully

submitted the proposed plan and is constructing and

operating the facility. The plaintiffs sued to obtain

declaratory and injunctive relief, asserting thirty-nine

claims under the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701-706, and several environmental statutes,

described below. The district court entered summary

judgment for the defendants on all claims. The plaintiffs

appeal, arguing that the district court erred in multiple

respects. We affirm.

I.

A. The Parties

The plaintiffs in case no. 23-1853 are Seafreeze

Shoreside, Inc., a Rhode Island seafood dealer; the Long

Island Commercial Fishing Association, Inc., a trade

group representing New York’s commercial fishing

industry (“LICFA”); XIII Northeast Fishery Sector, Inc.,

a private organization of commercial fishermen located in

the Northeast; and three commercial fishing companies:

Heritage Fisheries, Inc.; Nat. W., Inc.; and Old Squaw

Fisheries, Inc. We refer to these entities collectively as

the “Seafreeze plaintiffs” and to case no. 23-1853 as the

“Seafreeze appeal.”

The defendants in the Seafreeze appeal are the

Department of the Interior; the Honorable Debra Haaland,

in her official capacity as Secretary of the Interior; the

Bureau of Ocean Energy Management (“BOEM”); Liz

Klein, in her official capacity as the BOEM’s Director;

Laura Daniel-David, in her official capacity as the Interior

5a

Appendix A

Department’s Principal Deputy Assistant Secretary of

Land and Minerals Management; the Department of

Commerce; the Honorable Gina M. Raimondo, in her

official capacity as Secretary of Commerce; the National

Oceanic and Atmospheric Association (“NOAA”); the

National Marine Fisheries Service (“NMFS”); Catherine

Marzin, in her official capacity as Deputy Director of

the NOAA; the Department of Defense; the Honorable

Lloyd J. Austin III, in his official capacity as Secretary

of Defense; the Army Corps of Engineers (“the Corps”);

Lt. Gen. Scott A. Spellmon, in his official capacity as the

Corps’ Commander and Chief of Engineers; Col. John A.

Atilano, II, in his official capacity as the Corps’ District

Engineer of the New England District; and Vineyard

Wind 1, LLC, which submitted the approved plan and is

constructing and operating the facility. Vineyard Wind

1 was not initially sued but successfully intervened as a

defendant. We use “Vineyard Wind” to refer both to the

project and its developer.

The plaintiff in case no. 23-2051 is Responsible

Offshore Development Alliance (“Alliance”), a D.C.

nonprofit whose membership includes fishing associations,

seafood dealers, seafood processors, fishing vessels, and

affiliated businesses. We refer to case no. 23-2051 as the

“Alliance appeal.”

The defendants in the Alliance appeal are the Interior

Department; Secretary Haaland in her official capacity;

the BOEM; Director Klein in her official capacity;2 the

2. The case caption lists Amanda Lefton as the BOEM’s

Director. Director Klein replaced Director Lefton in 2023.

6a

Appendix A

NMFS; Richard W. Spinrad, in his official capacity as

the NOAA’s Administrator; the Department of the Army;

Christine Wormuth, in her official capacity as Secretary

of the Army; the Corps; Jamie A. Pinkham, in his official

capacity as Acting Assistant Secretary of the Army for

Civil Works; and Vineyard Wind.

B. Statutory Background

1.

The Seafreeze Appeal

The Seafreeze appeal involves claims pursuant to,

inter alia, the APA and the following environmental

statutes:

a.

The Outer Continental Shelf Lands Act

The Outer Continental Shelf consists of all submerged

lands beyond those reserved to the States and up to the

edge of the United States’ jurisdiction and control. 43

U.S.C. § 1331(a)(1). The Outer Continental Shelf Lands

Act (“OCSLA”) regulates the federal government’s

leasing of mineral and energy resources on these lands.

See id. §§ 1331-1356c. The OCSLA establishes the Outer

Continental Shelf as a “vital national resource reserve”

that “should be made available for expeditious and orderly

development, subject to environmental safeguards, in

a manner which is consistent with the maintenance of

competition and other national needs.” Id. § 1332(3).

To further these goals, the OCSLA authorizes the

Department of the Interior, in consultation with other

7a

Appendix A

federal agencies and acting through the BOEM, to grant

leases on the Outer Continental Shelf for the purpose

of, inter alia, renewable wind energy production. Id.

§ 1337(p)(1)(C); 30 C.F.R. § 585.100. When granting such

leases, the BOEM must “ensure that any activity under

[the OCSLA] is carried out in a manner that provides

for” twelve criteria including, insofar as is relevant,

safety; protection of the environment; conservation

of natural resources of the Outer Continental Shelf;

prevention of interference with reasonable uses of the

Outer Continental Shelf (as determined by the Interior

Secretary); and consideration of any other use of the sea

or seabed, including use for fishing and navigation. 43

U.S.C. § 1337(p)(4); 30 C.F.R. § 585.102(a).

The BOEM’s issuance of a lease does not itself authorize

development of the site. See 30 C.F.R. § 585.200(a). To

proceed to development, a lessee must formulate a site

assessment plan, obtain the BOEM’s approval of that plan,

and then obtain the BOEM’s approval of a construction

and operations plan (“COP”). See generally id. §§ 585.600,

585.605-607, 585.610-614, 585.620-622, and 585.626-628.

No construction may begin until the BOEM approves the

COP. Id. § 585.620(c).

The OCSLA contains a citizen-suit provision. 43

U.S.C. § 1349(a)(1).

b.

The National Environmental Policy Act

T he BOEM mu st comply w it h t he Nat iona l

Environmental Policy Act (“NEPA”) when approving

8a

Appendix A

a COP. 30 C.F.R. § 585.628. The NEPA is a procedural

statute that requires federal agencies to take a “hard

look” at the environmental impacts of and alternatives

to a proposed action. Beyond Nuclear v. U.S. Nuclear

Regul. Comm’n, 704 F.3d 12, 19 (1st Cir. 2013). Generally,

the vehicle for the required analysis is an environmental

impact statement (“EIS”). See 42 U.S.C. § 4332(C). The

EIS must analyze, inter alia, the “‘reasonably foreseeable

environmental effects’ of the proposed action, the

‘reasonable range of technically and economically feasible

alternatives’ to the proposed action, and reasonable

measures to mitigate the environmental effects of

the proposed action.” Nantucket Residents Against

Turbines v. U.S. Bureau of Ocean Energy Mgmt., 100

F.4th 1, 9 (1st Cir. 2024) (quoting 42 U.S.C. § 4332(C)).

The NEPA “‘does not mandate particular results, but

simply prescribes the necessary process’ for evaluating

an agency action’s environmental effects.” Id. (quoting

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 350, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989)). This

process is designed to prevent uninformed agency action

and to provide information about environmental impact

to the public and other government agencies so that they

have an opportunity to respond. See Town of Winthrop v.

FAA, 535 F.3d 1, 4 (1st Cir. 2008).

The NEPA does not contain a citizen-suit provision

and is enforced through the judicial review provisions of

the APA. See Scarborough Citizens Protecting Res. v.

U.S. Fish & Wildlife Serv., 674 F.3d 97, 102 (1st Cir. 2012).

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c.

The Endangered Species Act

The BOEM also must comply with the Endangered

Species Act (“ESA”) when approving a COP. Section 7 of

the ESA requires agencies to ensure that their actions

are “not likely to jeopardize the continued existence of

any endangered species or threatened species or result

in the destruction or adverse modification of habitat of

such species . . . .” 16 U.S.C. § 1536(a)(2). To this end,

a lead agency (here, the BOEM) must consult with the

NMFS whenever an agency action “may affect” a listed

marine species or critical habitat. 50 C.F.R. § 402.14(a);

see also Nantucket Residents, 100 F.4th at 8. When such a

consultation is required, the NMFS must issue a “biological

opinion” stating whether the contemplated agency action

is “likely to jeopardize the continued existence” of any

listed species or “result in the destruction or adverse

modification of critical habitat.” 50 C.F.R. § 402.14(g)(4), (h).

If so, the NMFS also must determine whether “reasonable

and prudent alternatives” are available. Id. § 402.14(g)(5).

The opinion must be based on the “best scientific and

commercial data available.” Id. § 402.14(g)(8); see also 16

U.S.C. § 1536(a)(2).

A lead agency must request reinitiation of consultation

following the NMFS’s issuance of a biological opinion if

the agency has retained discretionary involvement in or

control over the contemplated action, and certain other

conditions, including new information becoming available,

are satisfied. See 50 C.F.R. § 402.16(a).

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Appendix A

Generally, Section 9 of the ESA prohibits the “take”

of an endangered species within the United States or

the territorial seas of the United States. See Nantucket

Residents, 100 F.4th at 8; 16 U.S.C. § 1538(a)(1)(B). A

“take” includes the harassment of or harm to the species.

Id. § 1532(19). A section 9 prohibition also can be applied

to “threatened” (as opposed to endangered) species. See

16 U.S.C. § 1533(d).

One form of take is an “incidental take.” During

consultation, the NMFS may conclude that proposed

agency action is not likely to jeopardize an endangered

or threatened species but is reasonably certain to

incidentally affect the species. In such a situation, the

NMFS issues an “incidental take statement” along with

its biological statement. See id. § 1536(b)(4); 50 C.F.R

§ 402.14(i). An incidental take statement details the extent

of the anticipated take, reasonable and prudent measures

to minimize and monitor it, and the terms and conditions

under which such measures will be implemented. See 16

U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). A take authorized

in compliance with the incidental take statement is exempt

from the ESA’s take prohibition. See 16 U.S.C. § 1536(o).

The ESA contains a citizen-suit provision. 16 U.S.C.

§ 1540(g).

2.

The Alliance Appeal

The Alliance appeal involves claims pursuant to, inter

alia, the APA, the OCSLA, the NEPA, the ESA, and two

additional environmental statutes.

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Appendix A

a.

The Marine Mammal Protection Act

Congress enacted the Marine Mammal Protection

Act (“MMPA”) to prevent marine mammals from

“diminish[ing] beyond the point at which they cease to be

a significant functioning element in the ecosystem of which

they are a part . . . .” 16 U.S.C. § 1361(2). While the MMPA

generally prohibits the take (including the harassment)

of marine mammals, id. §§ 1372(a), 1371(a) 1362(13); 50

C.F.R. § 216.3, it permits the NMFS to authorize, for a

period not exceeding one year, the incidental “taking . . . of

small numbers of marine mammals” if it concludes that

“such taking . . . will have a negligible impact on such

species,” 16 U.S.C. § 1371(a)(5)(D)(i)(I).

Under the MMPA, there are two types of harassment:

Level A and Level B. Relevant here is Level B harassment,

which is “‘any act of pursuit, torment, or annoyance’ that

has the ‘potential to disturb a marine mammal or marine

mammal stock in the wild by causing disruption of behavior

patterns.’” Nantucket Residents, 100 F.4th at 9 (quoting 16

U.S.C. § 1362(18)(A)(ii), (18)(D)). The required contents of

an incidental harassment authorization (“IHA”), and the

process for obtaining such an authorization, are described

in 16 U.S.C. § 1371(a)(5)(D)(ii)(I), (II), (III), and 50 C.F.R.

§ 216.104, respectively.

The MMPA does not contain a citizen-suit provision

and is enforced through the judicial review provisions of

the APA. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1178

(9th Cir. 2004).

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Appendix A

b.

The Clean Water Act and the Rivers and

Harbors Act

Congress enacted the Clean Water Act (“CWA”) “to

restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

The CWA prohibits the “discharge of any pollutant”

into “navigable waters,” including the “territorial seas,”

unless done in compliance with the Act. Id. §§ 1311(a),

1344(a), 1362(7); 33 C.F.R. §§ 328.2, 328.3(a)(1), 328.4(a).

The territorial seas generally include waters extending

seaward three nautical miles from the coast but may also

include other waters in contact with the open sea such as

waters within three nautical miles from islands. See 33

U.S.C. § 1362(8); 33 C.F.R. §§ 328.4(a), 329.12(a).

Section 404 of the CWA authorizes the Secretary of

the Army, acting through the Corps, to issue permits for

discharges of dredged or fill material into waters of the

United States. 33 U.S.C. §§ 1344, 1362(6)-(7). Permits

must be issued in compliance with both the Corps’

permitting regulations, 33 C.F.R. pt. 320, and regulations

jointly developed by the U.S. Environmental Protection

Agency (“EPA”) and the Corps, known as the “Section

404(b)(1) Guidelines,” 40 C.F.R. pt. 230.

The Corps’ regulations require that a permitting

decision be based on “an evaluation of the probable impacts,

including cumulative impacts, of the proposed activity

and its intended use on the public interest.” 33 C.F.R.

§ 320.4(a)(1). Similarly, the Section 404(b)(1) Guidelines

require the Corps to determine the potential impacts,

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Appendix A

including cumulative impacts, of proposed discharges.

40 C.F.R. § 230.11. The Section 404(b)(1) Guidelines also

state that the Corps should not issue a permit “if there is

a practicable alternative to the proposed discharge which

would have less adverse impact on the aquatic ecosystem,

so long as the alternative does not have other significant

adverse environmental consequences.” Id. § 230.10(a). The

purpose of the analysis required by the Section 404(b)(1)

Guidelines is to ensure that proposed discharges will

not have a significant adverse effect on human health or

welfare, aquatic life, aquatic ecosystems, or recreational,

aesthetic, or economic values. See id. § 230.10(c)(1).

The Corps also may issue permits to authorize the

installation of structures in navigable U.S. waters more

than three nautical miles from the coast. But it must do

so pursuant to Section 10 of the Rivers and Harbors Act

(“RHA”), see 33 U.S.C. § 403; 33 C.F.R. §§ 320.2(b) &

322.3(a)-(b), and not the CWA.

The CWA contains a citizen-suit provision. 33 U.S.C.

§ 1365(a). The RHA does not contain a citizen-suit

provision and is enforced through the judicial review

provisions of the APA. See Huron Mountain Club v. U.S.

Army Corps of Eng’rs, 545 F. App’x 390, 393 & n.2 (6th

Cir. 2013).

C. Factual and Procedural Background

We recently decided two appeals involving challenges

to the Vineyard Wind project brought by different

plaintiffs. See Melone v. Coit, 100 F.4th 21 (1st Cir. 2024);

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Nantucket Residents, 100 F.4th at 1. We draw from

our opinions in those cases to set forth the factual and

procedural background of the Vineyard Wind project.

We then provide additional relevant facts as necessary.

In 2009, the BOEM began evaluating the possibility of

wind energy development on the Outer Continental Shelf

off the coast of Massachusetts, pursuant to its authority

under the OCSLA. Melone, 100 F.4th at 26. After several

years of review, in 2014, the BOEM made “a small portion

of the Massachusetts Wind Energy Area -- a section of the

Outer Continental Shelf -- available for lease.” Nantucket

Residents, 100 F.4th at 10 (citing 79 Fed. Reg. 34771 (June

18, 2014)). In 2015, the BOEM leased a 166,886-acre (or

675-square-kilometer) portion of the area to Vineyard

Wind. Melone, 100 F.4th at 26.

In December 2017, Vineyard Wind submitted to the

BOEM a COP that proposed building an offshore wind

project in an approximately 76,000-acre zone of the

lease area. Id. The COP contemplated the construction

of turbines and additional wind energy infrastructure

capable of generating approximately 800 megawatts of

clean wind energy, enough to power approximately 400,000

homes. Melone, 100 F.4th at 26; Nantucket Residents, 100

F.3d at 10. In response to Vineyard Wind’s submission,

several federal agencies initiated an environmental review

process.

In March 2018, the BOEM published a notice of intent

to prepare an EIS responsive to the Vineyard Wind

proposal. 83 Fed. Reg. 13777 (Mar. 30, 2018). Following

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Appendix A

this notice, the BOEM held five public “scoping” meetings

in the vicinity of the proposed project to identify issues

and potential alternatives to the COP for consideration in

the EIS. In November 2018, Vineyard Wind applied for

permits under CWA Section 404 and the RHA to construct

an offshore cable transmission system that would connect

the turbines to a landfall site at Covell’s Beach in Hyannis,

Massachusetts. In December 2018, the BOEM issued a

draft EIS, 83 Fed. Reg. 63184-02 (Dec. 7, 2018), which it

supplemented in June 2020.

Meanwhile, on December 6, 2018, the BOEM

requested consultation with the NMFS out of concern

about the impact the COP might have on the endangered

right whale. Consultation commenced in May 2019.

On September 11, 2020, the NMFS issued a biological

opinion concluding that the Vineyard Wind project would

likely not jeopardize the continued existence of the right

whale. The opinion also contained reasonable and prudent

mitigation measures deemed necessary to reduce the

project’s potential effects on the right whale. See generally

Nantucket Residents, 100 F.4th at 10. On May 21, 2021,

the NMFS issued to Vineyard Wind an IHA allowing the

non-lethal, “incidental Level B harassment of no more than

twenty” right whales. Melone, 100 F.4th at 26.

On May 7, 2021, the BOEM requested that the NMFS

reinitiate consultation in response to two developments.

First, the BOEM had concluded that the September 11,

2020, biological opinion did not fully assess the potential

impacts on the right whale of fish monitoring surveys to

be conducted by Vineyard Wind if its COP were approved.

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Appendix A

Second, more up-to-date information regarding the right

whale population had become available since completion of

the September 11, 2020, biological opinion. In requesting

reinitiation of consultation, the BOEM documented its

understanding that the September 11, 2020, biological

opinion “will remain valid and effective until consultation

is completed.” The BOEM also represented that, if

the COP were to be approved, “it would not allow the

commencement of the aforementioned [fish monitoring]

surveys until [the reinitiated consultation] is concluded.” 3

3. In a contemporaneously issued file memorandum, the BOEM

explained that, while it had requested reinitiation of consultation on

the fishery monitoring plan, approval of the project would “neither

jeopardize the continued existence of ESA-listed species nor destroy

or adversely modify designated critical habitat.” Supp. App. at 1683,

Seafreeze Appeal. The memorandum emphasized that reinitiation

of consultation to consider fishery monitoring plans as part of the

proposed action would “not provide any new information concerning

potential effects on threatened and endangered species from

construction, operation, and decommissioning of the project and,

therefore, [would] not change the determinations of the [September

11, 2020, biological opinion] for the rest of the project already

considered in the Opinion.” Id. at 1684; see also id. at 1683 (“The

authorization of Vineyard Wind I and the fishery monitoring plan

are not interdependent. Although approval of the fishery monitoring

plan . . . would not occur but for the project, the authorization of [the

project] is not dependent upon approval of the fishery monitoring

plan.”). The memorandum also stated that, if the BOEM were to

approve the COP, “commencement of any monitoring activities

would be conditioned on the conclusion of this reinitiation and

compliance with any NMFS survey mitigation measures that may

be identified and included in the revised Incidental Take Statement

and implementing Terms and Conditions in the revised Opinion.”

Id. at 1684.

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Appendix A

The NMFS agreed to reinitiate consultation and, on

October 18, 2021, issued an updated biological opinion. The

updated opinion again concluded that the project would

likely not jeopardize the right whale’s continued existence.

Both the 2020 and 2021 biological opinions also included

incidental take statements which concluded that, after

mitigation measures were implemented, the maximum

anticipated take from project construction was Level B

harassment of twenty right whales caused by construction

noise.

Between the issuance of the September 11, 2020,

and October 18, 2021, biological opinions, several other

relevant events took place. On December 1, 2020, Vineyard

Wind notified the BOEM that it was withdrawing its

proposed COP from review in order to conduct a technical

and logistical analysis of the wind turbine generator it

had decided to use in the final project design. See 86 Fed.

Reg. 12494 (Mar. 3, 2021). This analysis sought to “review

updated project parameters to confirm that [they] fell

within the project design envelope” that the BOEM had

used in conducting its earlier review. Id. The notice stated

that Vineyard Wind intended to rescind its withdrawal of

the COP upon completion of its analysis. Less than two

months later, on January 22, 2021, Vineyard Wind notified

the BOEM that it had completed its analysis and concluded

that it did not need to modify the COP. Vineyard Wind

also requested that the BOEM resume its review of the

COP, and the BOEM did so, see 86 Fed. Reg. at 12494-95.

The BOEM issued a final EIS (“FEIS”) on March

12, 2021. 86 Fed. Reg. 14153 (Mar. 12, 2021). The FEIS

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Appendix A

considered five action alternatives (one of which had two

sub-alternatives) to the project proposed by Vineyard

Wind in the COP. It also considered a no-action alternative.

The FEIS identified the COP, with modifications drawn

from several of the alternatives that the BOEM had

considered, as the preferred alternative. The FEIS also

included a lengthy assessment of potential impacts from

the project on the natural and human environment.

It acknowledged that the project would likely have a

negative economic impact on commercial fishing. But it

suggested that potential revenue losses could be offset

by compensatory funds that Vineyard Wind had agreed

to set aside. It also proposed mitigation measures that

would reduce negative impacts.

On May 10, 2021, the BOEM, the Corps, and the

NMFS issued a joint record of decision (“ROD”). The

ROD memorialized the BOEM’s selection of the preferred

alternative in the FEIS, the Corps’ decision to issue the

necessary CWA/RHA permits, and the NMFS’s decision

to issue the IHA. The ROD stated that the preferred

alternative would allow eighty-four or fewer wind turbines

to be installed in 100 of the 106 locations proposed in the

COP. It also required that the turbines be placed in an

east-west orientation with each turbine separated by one

nautical mile.

The BOEM’s approval of the COP was subject to

several non-discretionary mitigation, monitoring, and

reporting measures. The BOEM attached to the ROD a

memorandum explaining why the preferred alternative

satisfied the requirements of the OCSLA and other

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Appendix A

applicable regulatory authority. On July 15, 2021, the

BOEM issued its final approval of the COP. The approval

was subject to more than 100 pages of terms and conditions,

including compliance with any substantive amendments to

the September 11, 2020, biological opinion that might arise

from the ongoing reinitiated consultation. On January

20, 2022, after receiving the October 18, 2021, biological

opinion from the NMFS, the BOEM confirmed its final

approval of the COP subject to the terms and conditions,

and prescribed reasonable and prudent measures, set

forth in the updated opinion.

The Seafreeze plaintiffs and the Alliance filed the

lawsuits underlying these appeals on December 15, 2021,

and January 31, 2022, respectively. As explained, the

Seafreeze plaintiffs sued under the APA, the ESA, the

NEPA, and the OCSLA. The Alliance sued under the

APA, the NEPA, the MMPA, the ESA, the OCSLA, and

the CWA/RHA. In both cases, the parties cross-moved for

summary judgment, and the district court, in a thoughtful

order, granted the defendants’ motions and denied the

plaintiffs’ motions.

The district court concluded, inter alia, that (1) the

plaintiffs’ ESA claims were non-justiciable under Article

III of the Constitution, (2) the plaintiffs were outside

of the zone of interests protected by the NEPA, (3) the

Alliance was outside of the zone of interests protected by

the MMPA, (4) the Alliance had failed to identify a genuine

issue of material fact as to whether the Corps’ issuance

of the CWA Section 404 permit was arbitrary, capricious,

an abuse of discretion, unsupported by substantial

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Appendix A

evidence, or otherwise not in accordance with law, and

(5) the plaintiffs had failed to identify a genuine issue of

material fact as to whether the BOEM’s approval of the

project under the OCSLA was arbitrary, capricious, an

abuse of discretion, unsupported by substantial evidence,

or otherwise not in accordance with law. These appeals

followed.

II.

We review the district court’s summary judgment

rulings de novo. See, e.g., Melone, 100 F.4th at 29;

Nantucket Residents, 100 F.4th at 12. These include

the court’s Article III standing and zones-of-interests

rulings, the challenges to which raise legal questions. In

re Evenflo Co., Inc. Mktg., Sales Pracs. & Prods. Liab.

Litig., 54 F.4th 28, 34 (1st Cir. 2022) (reviewing de novo

the district court’s ruling on Article III standing); T.S.

ex rel. T.M.S. v. Heart of CarDon, LLC, 43 F.4th 737, 741

(7th Cir. 2022) (reviewing de novo the district court’s

zone-of-interests ruling).

We also review de novo the district court’s summary

judgment determinations that the defendants did not act

in a manner that was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,” or

that was “unsupported by substantial evidence.” Melone,

100 F.4th at 29 (quoting 5 U.S.C. § 706(2)(A), (E)); see also

Nantucket Residents, 100 F.4th at 12. An agency action

or inaction is arbitrary or capricious if the agency relied

on factors Congress did not intend it to consider, failed to

consider an important aspect of the problem, explained

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the decision in terms that run counter to the evidence, or

reached a decision so implausible that it cannot be ascribed

to a difference in view or the product of agency expertise.

See Melone, 100 F.4th at 29; see also Motor Vehicle Mfrs.

Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,

103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983)).

Finally, we may affirm the district court’s judgments

on any independent ground supported by the record. E.g.,

Puerto Rico Fast Ferries LLC v. SeaTran Marine, LLC,

102 F.4th 538, 549 (1st Cir. 2024).

III.

A. The APA/ESA Claims

We first consider the challenges to the district court’s

grant of summary judgment to the defendants on the

plaintiffs’ APA/ESA claims. As previously noted, the

court dismissed these claims as non-justiciable under

Article III. Whether a claim satisfies the demands of

Article III implicates our subject matter jurisdiction,

e.g., United States v. Texas, 599 U.S. 670, 686, 143 S. Ct.

1964, 216 L. Ed. 2d 624 (2023), and so we must satisfy

ourselves that we have subject-matter jurisdiction before

addressing the merits of a claim, see Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 93-102, 118 S. Ct.

1003, 140 L. Ed. 2d 210 (1998) (prohibiting the exercise

of “hypothetical jurisdiction”). We therefore begin by

reviewing whether the court properly concluded that the

plaintiffs’ ESA claims were non-justiciable based on the

summary judgment record.

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Appendix A

The plaintiffs presented the district court with three

developed theories of how the defendants violated the

ESA. The first two, advanced by the Seafreeze plaintiffs,

targeted aspects of the September 11, 2020, biological

opinion, but not the superseding October 18, 2021,

biological opinion. The third, advanced by the Alliance,

argued that the sequence in which the defendants acted

resulted in the issuance of the ROD and approval of the

COP without there being in place a valid biological opinion.

The district court rejected all three arguments

for a lack of standing and, alternatively, mootness. As

to standing, the court first assessed the nature of the

injuries that the plaintiffs were entitled to assert. See,

e.g., FDA v. All. for Hippocratic Med., 602 U.S. 367, 380,

144 S. Ct. 1540, 219 L. Ed. 2d 121 (2024) (observing that,

to establish standing, “a plaintiff must demonstrate (i)

that she has suffered or likely will suffer an injury in fact,

(ii) that the injury likely was caused or will be caused by

the defendant, and (iii) that the injury likely would be

redressed by the requested judicial relief”). The court

concluded that, while each plaintiff had adduced sufficient

evidence of economic injury due to the project’s potential

adverse effects on commercial fishing, no plaintiff had

adduced admissible evidence of non-economic injury. In

reaching this latter conclusion, the court rejected the

plaintiffs’ arguments that they were appropriate parties

to assert environmental and aesthetic interests that would

be harmed by the project.

The district court then turned to whether the

plaintiffs’ evidence of economic injury, causation, and

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Appendix A

redressability was sufficient to establish that they had

Article III standing to press their ESA claims. See

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct.

2130, 119 L. Ed. 2d 351 (1992) (emphasizing that, at the

summary judgment stage, a party claiming standing

cannot rest on general allegations of injury resulting from

the defendant’s conduct but rather must adduce evidence

to support the specific facts necessary to substantiate its

standing theory); see also Bennett v. Spear, 520 U.S. 154,

167-68, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997). The court

concluded that the plaintiffs’ evidence was insufficient to

meet this burden as a matter of law.

With respect to the Seafreeze plaintiffs, who, again,

only sought to challenge aspects of the superseded

September 11, 2020, biological opinion, the district court

determined that they had failed to adduce evidence that

their economic injuries were likely caused by the project’s

alleged negative impact on any endangered species. With

respect to the Alliance, the court determined that it had

failed to adduce evidence that the procedural actions

of which it complained regarding the two biological

opinions either likely caused its alleged injury or likely

caused any erroneous government decision. See Ctr. for

Biological Diversity v. EPA, 861 F.3d 174, 184, 430 U.S.

App. D.C. 15 (D.C. Cir. 2017) (observing that a plaintiff

alleging procedural injury must show both a connection

between the error and a substantive agency outcome and

a connection between that outcome and the plaintiff’s

particularized injury). In support of the latter ruling,

the court observed that the October 18, 2021, biological

opinion, which the Alliance did not challenge, served to

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Appendix A

break the chain of causation underlying the Alliance’s

standing theory.

Alternatively, the district court concluded that all of

plaintiffs’ claims were moot. As to the Seafreeze plaintiffs,

their ESA claims were moot because they had targeted

the September 11, 2020, biological opinion, and not the

superseding October 18, 2021, biological opinion, which

was the ultimate basis for the BOEM approving the COP.

As to the Alliance, its ESA claim was moot because the

alleged procedural error was rendered immaterial by the

subsequent issuance of the superseding biological opinion,

which the Alliance did not challenge, and which, again,

was the ultimate basis for approving the COP.

On appeal, the Seafreeze plaintiffs present only one

developed argument challenging the district court’s

standing and mootness rulings on their ESA claims.4

4. The section of the Seafreeze plaintiffs’ brief challenging

the district court’s ESA rulings contains three subparts. The first

presents the developed argument we are about to address. The

second, titled “The Commercial Fishermen’s ESA Claims Were Not

Mooted And The [September 11, 2020, Biological Opinion] Violated

ESA In Multiple Ways,” contains five brief arguments. Two reiterate

the Seafreeze plaintiffs’ merits challenges to the September 11, 2020,

biological opinion and add nothing to the justiciability analysis. The

other three involve variations on a single theme: that challenges to

the September 11, 2020, biological opinion are not moot because

that was the opinion in effect when the agency defendants issued

the ROD and approved the COP. We shall have more to say about

this argument in our discussion of the Alliance’s challenge to the

court’s dismissal of its ESA claim. The third, titled “The District

Court Erred In Holding That The Commercial Fishermen Waived

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Appendix A

They assert that the court erred in refusing to recognize

the LICFA’s associational standing to assert, on behalf

of LICFA member David Aripotch, certain non-economic

environmental and aesthetic injuries arising from

Vineyard Wind’s impact on the project area. Aripotch,

who is not a party, owns plaintiff Old Squaw and captains

its boat. In the district court, he submitted a declaration

detailing the aesthetic and spiritual pleasures he derives

from fishing and photographing right whales and other

marine life in the project area.

The district court rejected the argument for two

reasons. First, it concluded that Aripotch’s personal

injuries and interests could not be imputed to Old Squaw,

the corporation he owns. Second, the court refused to

allow the LICFA to assert Aripotch’s non-economic

interests in the project area because the LICFA did

Certain ESA Arguments,” asserts that the district court erred in

regarding as waived for lack of summary judgment briefing nine

additional ESA claims the Seafreeze plaintiffs had asserted in their

complaint. But the record citations the Seafreeze plaintiffs provide in

support of this argument only point to a few passing mentions of these

claims and attempts to incorporate by reference arguments made

elsewhere, often by parties to other Vineyard Wind lawsuits. The

record therefore confirms that the merits of these claims were not

developed and argued in the summary judgment papers. See Rocafort

v. IBM, Corp., 334 F.3d 115, 121-22 (1st Cir. 2003) (arguments raised

in the complaint but not developed in summary judgment papers are

waived); Exec. Leasing Corp. v. Banco Popular de P.R., 48 F.3d 66,

67-68 (1st Cir. 1995) (parties must include within the four corners

of their briefs any arguments they wish the court to consider and

cannot circumvent page limits through incorporation by reference

of arguments made elsewhere). The district court appropriately

declined to address the merits of these claims.

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Appendix A

not demonstrate that those interests are germane to its

purpose of supporting fisheries management. See Friends

of the Earth, Inc. v. Laidlaw Env’tl Servs. (TOC), Inc.,

528 U.S. 167, 181, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000)

(observing that an association may have standing to sue

on behalf of its members when, inter alia, the member

interest it is asserting is “germane to the organization’s

purpose”).

The Seafreeze plaintiffs challenge the ruling that

the LICFA failed to demonstrate that protection of

Aripotch’s aesthetic and spiritual interests in the project

area is germane to its purpose. They call our attention

to the LICFA’s articles of incorporation. Those articles

indicate that the preservation, maintenance, and welfare

of the environment in the saltwater fisheries “in Suffolk

County [New York] and its environs,” now and for future

generations, are among the purposes for which the LICFA

was formed in October 2001. The Seafreeze plaintiffs

sought to introduce the articles into the summary

judgment record by means of a motion for judicial notice

filed after the summary judgment briefing deadline had

passed. The court denied the motion as an untimely effort

to supplement the summary judgment record.

The Seafreeze plaintiffs first say that this was

reversible error because “no timeliness requirement

exists for matters of judicial notice pertaining to standing,

as jurisdictional rules like standing may be raised at any

time.” This argument is incorrect. Trial courts possess

considerable case-management authority, which includes

the authority to set deadlines for filing pretrial motions.

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Rosario-Díaz v. González, 140 F.3d 312, 315 (1st Cir. 1998)

(citing Fed. R. Civ. P. 16(b)(2)); see also Fed. R. Civ. P.

16(b)(3) (mandating that when federal trial courts issue

scheduling orders, those orders limit the time for, inter

alia, filing motions); L.R., D. Mass. 7.1(a)(1) (authorizing

the establishment of briefing deadlines). If information

calling into question the court’s subject-matter jurisdiction

becomes available after such a deadline has passed, the

expiration of the deadline does not preclude an inquiry

into the court’s power to hear the underlying claim. See

Fed. R. Civ. P. 12(h)(3) (stating that a court must dismiss

an action if “at any time” it determines “that it lacks

subject-matter jurisdiction” (emphasis supplied)). But this

principle has no bearing on the court’s authority to place

reasonable time limits on the ability of a party asserting

federal subject-matter jurisdiction to produce proof that

Article III standing exists. See Town of Milton v. FAA,

87 F.4th 91, 95 (1st Cir. 2023) (party asserting federal

jurisdiction bears the burden of establishing Article III

standing).

The Seafreeze plaintiffs also invoke Fed. R. Evid.

201(c)(2), which states that a court “must take judicial

notice if a party requests it and the court is supplied with

the necessary information,” and Fed. R. Evid. 201(d), which

states that a court “may take judicial notice at any stage

of the proceeding.” According to the Seafreeze plaintiffs,

these Rules obliged the court to take judicial notice of

the LICFA’s articles of incorporation, even though the

deadline for summary judgment briefing had passed. But

even if the articles of incorporation are a proper subject

of judicial notice because the LICFA had filed them with

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Appendix A

the New York Secretary of State, they would not provide

grounds for the LICFA to represent Aripotch’s personal

interests in the project area.

The articles of incorporation establish only that a

stated purpose for incorporating the LICFA in October

2001 was to protect the welfare of the environment in the

saltwater fisheries in Suffolk County and its environs.

They do not establish, as a matter of law, that this has

been one of the LICFA’s actual purposes in the years

since its founding. It would deprive the defendants of

their procedural right to contest the issue if we were to

draw the broader inference from a document introduced

into the record after the summary judgment briefing

had closed. Moreover, a commercial fishing association’s

interest in protecting the welfare of the area in which

its members carry on their business does not, ipso facto,

encompass an individual member’s observational interests

in the right whale or recreational interests in fishing and

photography. And finally, the area to which the LICFA’s

environmental interests allegedly extend do not appear

to include the project area, which is more than sixty-five

miles away from Suffolk County.

We turn now to the Alliance’s challenge to the district

court’s rejection of its ESA claim on justiciability grounds.

The Alliance does not explicitly engage the particulars of

the court’s standing and mootness rulings. The section of

the Alliance’s opening brief addressing the rejection of its

ESA claim contains two subparts. The first reiterates the

merits of its ESA claim. That claim, as we understand it,

is that issuance of an ROD based on a biological opinion

that is subject to reinitiated consultation is a per se

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Appendix A

violation of the ESA, regardless of (1) what the agencies

say about the ongoing validity and effectiveness of the

earlier opinion, (2) the limited and discrete nature of the

reinitiated consultation, and (3) steps the agencies take

to ensure that the terms and conditions and reasonable

and prudent measures contained within the updated

opinion will be both enforceable and enforced. The second

subpart argues that the Alliance has properly alleged and

demonstrated both economic and environmental injuries

and a basis for representing the interests of its members.

The Alliance’s lack of direct engagement with the

substance of the court’s justiciability rulings in its opening

brief is itself grounds for rejecting its challenge to the

entry of summary judgment on its ESA claim. E.g., Cioffi

v. Gilbert Enters., Inc., 769 F.3d 90, 93-94 (1st Cir. 2014)

(observing that an appealing party must explain “why

a particular order is erroneous”); Sparkle Hill, Inc.

v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir. 2015)

(“[W]e do not consider arguments for reversing a decision

of a district court when the argument is not raised in a

party’s opening brief.”). But, in any event, there is no

basis for disturbing the court’s justiciability rulings on

their merits.

We assume solely for the sake of argument, but with

skepticism, that the ESA prohibits the issuance of an ROD

and approval of a COP while reinitiated consultation over a

biological opinion is ongoing, regardless of circumstances.

Compare Defenders of Wildlife v. BOEM, 684 F.3d

1242, 1252 (11th Cir. 2012) (rejecting argument that the

“BOEM’s choice to reinitiate consultation . . . automatically

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Appendix A

renders . . . former biological opinions invalid,” particularly

where the prior opinions were “reconfirmed” and “have

not been withdrawn despite reinitiation of consultations”),

with Env’tl Prot. Info. Ctr. v. Simpson Timber Co., 255

F.3d 1073, 1076 (9th Cir. 2001) (stating in dicta and without

elaboration that “[r]einitiation of consultation requires

. . . the NMFS to issue a new Biological Opinion before

the agency action may continue”) (citation and internal

quotation marks omitted)). Even so, this assumption does

not undermine the court’s justiciability rulings.

As explained above, the district court concluded,

based on the summary judgment record, that the Alliance

lacked standing to press its ESA claim because an event

occurring after the alleged procedural error (the initial

issuance of the ROD and approval of the COP without a

valid biological opinion) broke the causal chain between

that error and both the agencies’ substantive action

(approval of the COP) and the Alliance’s alleged Article

III injury (economic harm from the operation of the

project). For the same reasons, the court concluded that

the Alliance’s ESA claim was moot because an event

occurring after the alleged procedural error had rendered

it immaterial.

The event on which both conclusions rest was the

NMFS’s issuance of the superseding October 18, 2021,

biological opinion, whose merits the Alliance does not

challenge. Once that superseding biological opinion

issued, the district court reasoned, the Alliance could no

longer claim that the alleged procedural error remained

a legal cause of either the relevant substantive agency

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Appendix A

actions (the final COP approval) or the Alliance’s injury

(economic harm caused by the COP approval). Seafreeze

Shoreside, Inc., et al. v. U.S. Dep’t of the Interior, et al.,

Nos. 1:22-cv-11091-IT, 1:22-cv-11172-IT, 2023 U.S. Dist.

LEXIS 183483, 2023 WL 6691015, at *28-29 (D. Mass. Oct.

12, 2023). Nor could the court provide a remedy that might

affect the matter at issue because the Alliance alleged

only an error that was no longer relevant to the agency

action under review. See 2023 U.S. Dist. LEXIS 183483,

[WL] at *27 n.19 (citing Church of Scientology of Cal. v.

United States, 506 U.S. 9, 12, 113 S. Ct. 447, 121 L. Ed.

2d 313 (1992) (describing the essential characteristic of a

moot case) and Rio Grande Silvery Minnow v. Bureau of

Reclamation, 601 F.3d 1096, 1114 (10th Cir. 2010) (holding

moot an ESA claim that did not challenge a superseding

biological opinion)).

In its reply brief, the Alliance addresses the district

court’s analysis by stating that the issuance of the

superseding October 18, 2021, biological opinion, and the

January 20, 2022, confirmation of the prior COP approval,

“cannot cure” the BOEM’s earlier procedural error of

issuing the ROD and approving the COP while the 2020

biological opinion was under reinitiated consultation.

“Because the iron-clad rule of ESA is to look before

you leap,” the Alliance says, “the later-issued [October

18, 2021, biological opinion] is irrelevant to the BOEM’s

procedural duty to comply with the ESA in rendering its

decision [to issue the ROD] on May 10, 2021.”

This argument misses the point. The significance of

the NMFS’s issuance of the unchallenged superseding

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October 18, 2021, biological opinion (and, we might

add, the BOEM’s January 20, 2022, confirmation of its

prior approval of the COP given the conclusions in that

unchallenged superseding opinion) does not lie in whether

they “cured” any earlier-occurring procedural error.

Rather, these later agency actions, taken as part of an

ongoing and legally authorized consultation process,

precluded any basis for finding that taint to the COP

approval arising from its allegedly having been issued

without a valid biological opinion was having any ongoing

effect. And, if there was no basis in the summary judgment

record for finding that the procedural violation complained

of was having an ongoing effect, there was no basis in the

record for either enjoining or unwinding the project, which

is the specific relief the Alliance sought, or for concluding

that the Alliance’s injury was redressable in any way.

The district court thus did not err in awarding

summary judgment to the defendants on the plaintiffs’

APA/ESA claims.

B. The APA/NEPA and APA/MMPA Claims

We next consider the challenges to the district court’s

grant of summary judgment to the defendants on the

plaintiffs’ APA/NEPA claims and the Alliance’s APA/

MMPA claim. We consider these challenges together

because the court dismissed both sets of claims for being

outside the zones of interests of the environmental statutes

that the plaintiffs invoked. With respect to the APA/NEPA

claims, the court held that the plaintiffs did not put forth

competent evidence as to an environmental harm that

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Appendix A

would impact their commercial fishing. With respect to

the APA/MMPA claim, the court held that the Alliance

had not established a cognizable interest in right whales

or any other marine mammal.

An APA claimant must establish that the claim

arguably falls within the zone of interests to be protected

or regulated by the underlying statute. See Lexmark

Int’l, Inc. v. Static Control Components, Inc., 572 U.S.

118, 129-30, 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014). As

the word “arguably” suggests, the zone-of-interests test

“is not ‘especially demanding.’” Id. at 130 (quoting MatchE-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 567 U.S. 209, 225, 132 S. Ct. 2199, 183 L. Ed. 2d

211 (2012)). Congress enacted the APA “to make agency

action presumptively reviewable,” and we do not require

“any indication of congressional purpose to benefit the

would-be plaintiff.” Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians, 567 U.S. at 225 (internal

quotation marks omitted) (quoting Clarke v. Secs. Indus.

Ass’n, 479 U.S. 388, 399, 107 S. Ct. 750, 93 L. Ed. 2d

757 (1987)). Thus, the zone-of-interests test “forecloses

suit only when a plaintiff’s interests are so marginally

related to or inconsistent with the purposes implicit in

the statute that it cannot reasonably be assumed that

Congress authorized that plaintiff to sue.” Lexmark, 572

U.S. at 130 (quoting Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians, 567 U.S. at 225 (internal quotation

marks omitted)).

The zone-of-interests test was once treated as a

justiciability doctrine implicating the court’s subject-

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Appendix A

matter jurisdiction. See id. at 128 n.4 (citations omitted).

But in Lexmark, the Supreme Court clarified that the

test is not jurisdictional but rather goes to whether the

claimant has stated a viable claim. See id. (citations

omitted). Therefore, we may affirm a zone-of-interestsbased dismissal on other grounds supported by the record.

See Puerto Rico Fast Ferries, 102 F.4th at 549. But cf.

Steel Co., 523 U.S. at 93-102 (prohibiting affirmance of

the dismissal of a claim based on lack of subject-matter

jurisdiction by rejecting the claim on its merits). 5

Here, we agree with the district court’s zone-ofinterests ruling as to the Alliance’s APA/MMPA claim.

The Alliance argues that it may assert the aesthetic and

recreational interests in marine mammals (including the

right whale) of “Alliance member” David Aripotch. But this

argument is based on a misstatement. Aripotch’s company,

Old Squaw, is a member of the Alliance, but Aripotch is

not.6 Moreover, and in any event, the protection of marine

5. The plaintiffs’ APA/NEPA challenges come to us in an odd

procedural posture. The Seafreeze plaintiffs challenge both the

district court’s zone-of-interests ruling and the lawfulness under the

NEPA of the BOEM’s actions. The Alliance, however, challenges only

the court’s zone-of-interests ruling. It does not address the merits

of its APA/NEPA challenge in either its opening brief or its reply

brief, even though the government calls the lapse to its attention, and

even though the success of its zone-of-interests argument would lead

naturally to our consideration of the merits given the fully developed

administrative record and opportunity the Alliance had to develop

its APA/NEPA claims in the summary judgment briefing. Thus, to

the extent that the Alliance intends to press any APA/NEPA claims

that differ from those of the Seafreeze plaintiffs, they are waived.

6. In their responsive briefs, the defendants called our attention

to the fact that Aripotch is neither a member of the Alliance nor

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Appendix A

mammals such as the right whale is not germane to the

Alliance’s purpose, which is to represent the interests

of commercial fisheries and related organizations. See

Friends of the Earth, 528 U.S. at 181. The court properly

awarded the defendants summary judgment on the

Alliance’s APA/MMPA claim.

But we disagree with the district court’s zone-ofinterests ruling as to the plaintiffs’ APA/NEPA claims.

While the court was correct to reject as incompetent much

of the plaintiffs’ evidence of environmental injury, the

ROD itself acknowledges that the discharge of fill material

associated with the project will have major adverse

impacts on mollusks, fish, and crustaceans in the project

area. Moreover, the plaintiffs have plausibly linked these

adverse impacts to the expected adverse economic effects

of the project on their commercial fishing interests. This is

enough to satisfy the zone-of-interests test. See Monsanto

Co. v. Geertson Seed Farms, 561 U.S. 139, 155-56, 130

S. Ct. 2743, 177 L. Ed. 2d 461 (2010) (recognizing that

plaintiffs whose alleged injuries from agency deregulation

had both environmental and economic components fell

within the APA and the NEPA’s zone of interest).

Despite this, we affirm the dismissal of these

claims. On appeal, the Seafreeze plaintiffs develop

three arguments that the BOEM violated the NEPA’s

procedural requirements. They explicitly premise all

a party to either of these consolidated appeals. The Alliance did

not correct the misstatement in its opening brief or reply; rather,

it simply changed its characterization of Aripotch from being

an “Alliance member” to being a “representative” of an Alliance

member.

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Appendix A

three arguments on an underlying assertion that the

BOEM was improperly motivated to reach decisions

so that Vineyard Wind could timely honor its prior

contractual commitments surrounding the project. The

first argument is that this improper motivation led the

BOEM to limit its consideration of reasonable alternatives

to the project. The second is that it led the BOEM to

inappropriately revive the EIS process after Vineyard

Wind’s December 1, 2020, provisional withdrawal of

its proposed COP from review to test the wind turbine

generator it had decided to use. The third is that it led the

BOEM to fail to appropriately consider the incremental

impact of the project in combination with the likely impact

of other future, reasonably foreseeable offshore wind

development projects.

As an initial matter, the premise of the Seafreeze

plaintiffs’ arguments is misguided. By regulation, the

BOEM was under an obligation to “briefly summariz[e]

[in the FEIS] the purpose and need to which the agency is

responding,” 40 C.F.R. § 1502.13; to “[r]igorously explore

and objectively evaluate all reasonable alternatives,” id.

§ 1502.14(a); and, most importantly for present purposes,

to consider “the needs and goals of the parties involved in

the application or permit as well as the public interest,”

43 C.F.R. § 46.420(a)(2).7 Thus, where the agency is

7. The FEIS identified the BOEM’s purpose and need as

“whether to approve, approve with modifications, or disapprove the

COP to construct, operate, and decommission an approximately

800 MW, commercial-scale wind energy facility within the area

of [Vineyard Wind’s] lease to meet New England’s demand for

renewable energy.” Supp. App. at 972, Seafreeze Appeal. It also

noted, inter alia, that the “BOEM’s decision on Vineyard Wind’s COP

37a

Appendix A

not itself the project’s sponsor, it may give substantial

weight to an applicant’s preferences, at least insofar as

it considers alternatives. See Beyond Nuclear, 704 F.3d

at 19. This principle derives from the fact that, under

the NEPA, agencies must consider only “reasonable”

alternatives, meaning alternatives “bounded by some

notion of [technical and economic] feasibility,” id. (quoting

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council,

Inc., 435 U.S. 519, 551, 98 S. Ct. 1197, 55 L. Ed. 2d 460

(1978)), and only alternatives that would “‘bring about

the ends of the proposed action,’” id. (quoting Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 195, 290

U.S. App. D.C. 371 (D.C. Cir. (1991)).

Apart from the erroneous premise, the Seafreeze

plaintiffs’ APA/NEPA arguments fail to establish that the

BOEM engaged in arbitrary or capricious decisionmaking.

The Seafreeze plaintiffs challenge the BOEM’s failure

to consider alternatives that would have required

construction outside the lease area. But the BOEM

supportably concluded that these were effectively new

proposed actions that were not responsive to the agency’s

regulatory obligation to address the Vineyard Wind

proposal, which was of course limited to the Vineyard

Wind lease area. The BOEM also supportably explained

that it would consider proposals on other lease areas

through separate regulatory processes.

is needed to execute [the BOEM’s] duty to approve, approve with

modifications, or disapprove, the proposed Project in furtherance of

the United States’ policy to make [Outer Continental Shelf] energy

resources available to expeditious and orderly development.” Id.

The plaintiffs do not challenge the lawfulness of this purpose and

need statement.

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Appendix A

The Seafreeze plaintiffs also challenge the BOEM’s

termination of the EIS process in response to Vineyard

Wind’s request to provisionally withdraw the proposed

COP from review, and the agency’s subsequent decision to

permit Vineyard Wind to rescind its withdrawal without

providing an additional notice and comment period.

Vineyard Wind asserts that the Seafreeze plaintiffs lack

Article III standing to make this claim.

We agree, for reasons that track those explaining our

ruling that the plaintiffs lack standing to complain about

the allegedly improper issuance of the ROD and approval

of the COP while reinitiation of ESA consultation was

underway. See supra Part III-A. Here too, even if we

assume (again, with skepticism) that a second notice-andcomment period was required, the summary judgment

record does not permit a conclusion that any taint from

the alleged procedural error had a causal effect on the

BOEM’s ultimate approval of the COP. See Lujan, 504 U.S.

at 561. The Seafreeze plaintiffs point to no comment that

they, or anyone else, were precluded from submitting to

the BOEM, and they suggest no other practical effect that

flowed from the absence of a second notice-and-comment

period. Any possibility of such an effect is, moreover,

implausible, given that the COP was unchanged and

already had been subject to extensive notice and comment.

Thus, the alleged procedural error was not a likely cause

of the Seafreeze plaintiffs’ injury. See Ctr. for Bio. Div.,

861 F.3d at 184. Nor, therefore, could it justify enjoining

or unwinding the project. 8

8. In addition to complaining about the lack of an additional

notice-and-comment period, the Seafreeze plaintiffs say that

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Appendix A

Finally, the Seafreeze plaintiffs argue that the BOEM

failed to appropriately consider the incremental impact of

the project in combination with the likely impact of other

future, reasonably foreseeable offshore wind development

projects. They support this argument only with two

conclusory allegations: (1) “the Federal Defendants gutted

the core of the cumulative impacts analysis set forth in

the Supplemental Draft EIS by removing much of it from

the [FEIS], thereby violating NEPA’s regulations”; and

(2) “the Federal Defendants improperly segmented their

NEPA analysis” by “undercounting reasonably foreseeable

offshore wind development outside the lease area.” The

Seafreeze plaintiffs do not elaborate upon either of these

allegations.9 They therefore have not put the correctness

resuming review of the Vineyard Wind COP was ultra vires because

nothing in the NEPA or the OCSLA “provides the BOEM with

authority to resume review of a terminated COP.” But again, even

if we assume that to be so, the Seafreeze plaintiffs have provided

no basis in evidence or argument for concluding that this alleged

procedural error likely tainted the injury-causing event: ultimate

approval of the COP. There is no likelihood of a different outcome

had the BOEM been required to formalistically reconduct its review

process from the start rather than picking up where it left off.

Moreover, without a basis for finding a likely causal effect, there

would be no proper basis for enjoining or unwinding the project.

9. In their reply brief, in response to the defendants’ arguments

that the Seafreeze plaintiffs’ briefing of the cumulative-impacts issue

was inadequate, the Seafreeze plaintiffs point to a portion of the

executive summary of the supplement to the EIS that, they say, did

not make its way into the FEIS. They also seek to clarify that their

position with respect to the BOEM’s alleged improper segmenting

of its cumulative effects analysis is that the BOEM improperly failed

to treat certain aspirational goals that the Biden administration set

for offshore wind development as “reasonably foreseeable future

40a

Appendix A

of the district court’s ruling into issue. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted

to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.”)

(citations omitted); see also id. (“It is not enough merely

to mention a possible argument in the most skeletal way,

leaving the court to do counsel’s work . . . .”).

The district court did not err in awarding summary

judgment to the defendants on the plaintiffs’ APA/NEPA

and APA/MMPA claims.

C. The APA/CWA Claims

We next consider the challenge to the district court’s

grant of summary judgment to the defendants on the

Alliance’s APA /CWA claims. Although the Alliance

makes three arguments on appeal, only one was properly

preserved: that the Corps’ decision to issue a CWA Section

404 permit for the discharge of dredged or fill material

arbitrarily and capriciously failed to properly account for

the effect of the project on commercial fisheries, wildlife,

and the marine environment.10 The court did not explicitly

address this argument in its summary judgment order.

actions,” within the meaning of 43 C.F.R. § 46.30, to be accounted for

in the cumulative-impacts analysis. Arguments raised for the first

time in a reply brief are ordinarily deemed waived, see Lahens v.

AT&T Mobility P.R., Inc., 28 F.4th 325, 328 n.1 (1st Cir. 2022), and

we see no reason to depart from that principle here.

10. The Alliance also claims that certain misstatements

regarding the scope of the project contained in the Corps’ section

of the ROD, later corrected as clerical errors in an August 4, 2021,

41a

Appendix A

The Alliance argues that the Corps issued the

permit under the mistaken belief that the impacts of the

project on commercial fisheries, wildlife, and the marine

environment would be minor. In support of this argument,

the Alliance points to several statements in the FEIS

which, if read in isolation, appear to project more-thanminor impacts from the project on commercial fisheries,

commercial shipping, recreational vessel businesses,

mollusks, fish, and crustaceans. But the Alliance’s brief

omits context that qualifies the statements in a manner

that supports the Corps’ conclusion.

For example, the Alliance cites to a page in the FEIS

allegedly stating that the project will have “moderate

ROD Supplement, reveal that the Corps did not understand the

scope of the project it was permitting. This claim is not preserved.

The district court held it waived because it was not pleaded in the

Alliance’s complaint, and the Alliance does not engage this ruling

in its opening brief. See Lahens, 28 F.4th at 328 n.1. The Alliance

also claims that, in issuing the permit, the Corps violated the CWA

by failing to consider the cumulative impacts of Vineyard Wind

and other surrounding offshore wind projects. But the Alliance did

not raise this concern with the Corps during its public comment

process. It therefore cannot now seek to establish that the Corps

acted arbitrarily or capriciously on this basis. See Dep’t of Transp.

v. Pub. Citizen, 541 U.S. 752, 764-65, 124 S. Ct. 2204, 159 L. Ed. 2d

60 (2004); see also Vt. Yankee Nuclear Power Corp., 435 U.S. at 55355 (emphasizing that a party must have presented a position during

the administrative process to later challenge an agency decision

as arbitrary and capricious for failure to have taken the position

adequately into account). In so ruling, we reject the Alliance’s

assertion, made in its reply brief without supporting record citation,

that it preserved its litigation rights on this point through comments

it submitted to the BOEM during the EIS’s public comment period.

42a

Appendix A

to major impacts on commercial fisheries.” App. at 141,

Alliance Appeal. But in fact, that statement refers to the

impacts of activities “other than offshore wind.” Id. at

141. Similarly, the Alliance cites to alleged admissions

that “offshore wind structures and hard coverage for

cables would have long-term impacts on commercial

fishing operations and support businesses such as seafood

processing,” and that “the impacts would increase in

intensity as more offshore structures are completed.”

Id. at 139. But the very same sentence concludes that

“the fishing industry is anticipated to be able to adjust

fishing practices over time in order to maintain the

commercial fishing industry in the context of offshore

wind structures.” Id. And while the FEIS acknowledged

that increased vehicle traffic from the construction of

future offshore wind projects could result in congestion

and delays that could decrease productivity for commercial

shipping, fishing, and recreational vessel businesses, it

also concluded that the project would have negligible to

moderate impacts on navigation and vehicle traffic after

required mitigation measures were implemented.

The Alliance also cites to pages in the Corps’ section

of the ROD noting anticipated adverse project impacts on

the aquatic ecosystems. But those same pages note that

some of these effects will be temporary, that required

mitigation measures will reduce impacts, and that there

may also be some environmental benefits from the project.

Overall, after extensive analysis, the FEIS concluded that

the project would have a moderate impact on fish and other

aquatic organisms.

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Appendix A

The record does not support a conclusion that the

Corps acted arbitrarily or capriciously in issuing the CWA

Section 404 permit because the Corps misunderstood

the findings in the administrative record. The district

court did not err in awarding summary judgment to the

defendants on the Alliance’s APA/CWA claim.

D. The APA/OCSLA Claims

Finally, we consider the challenges to the district

court’s grant of summary judgment to the defendants

on the plaintiffs’ APA/OCSLA claims. The plaintiffs’

principal appellate argument is that the district court

misunderstood OCSLA’s core statutory provision

governing the approval of offshore wind projects, 43

U.S.C. § 1337(p)(4), in holding that the BOEM had not

acted arbitrarily or capriciously in approving the COP.

Again, that provision imposes an obligation on the

BOEM to “ensure that any activity [under the OCSLA] is

carried out in a manner that provides for” twelve criteria

including, insofar as is relevant, safety; protection of

the environment; conservation of natural resources of

the Outer Continental Shelf; prevention of interference

with reasonable uses of the Outer Continental Shelf (as

determined by the Interior Secretary); and consideration

of any other use of the sea or seabed, including use for

fishing and navigation. Id. The plaintiffs also argue that

the court impermissibly discounted their evidence of safety

concerns, environmental harms, and the devastating effect

on commercial fishing that the project would cause.

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Appendix A

The plaintiffs’ principal argument is based upon

mischaracterizations of the district court’s reading of

OCSLA § 1337(p)(4). The Alliance says that the court

interpreted “the twelve mandatory requirements” as

“discretionary considerations that [the BOEM] could

consider and balance.” The Seafreeze plaintiffs say that

the court “decided to insert the word ‘reasonably’ into

the statutory text to allow [the BOEM] to ostensibly

‘balance’ [its] mandatory duties under Section 1337(p)(4)

against other considerations.” The Alliance also says

that the court read the statutory phrase “shall ensure”

to “‘reflect[] Congress’s intent to confer flexibility . . . .’”

And it further states that “the district court erroneously

held” that Congress gave the BOEM “the discretion to

ignore [the twelve OCSLA criteria] or to balance one off

another. . . .”

The district court did not (1) treat the twelve OCSLA

criteria as discretionary considerations that the BOEM

“could consider,” (2) read the word “reasonably” into

the OCSLA, (3) say anything close to what the Alliance

purports to quote it as saying, or (4) hold that the BOEM

has the discretion to ignore or balance criteria. In fact,

the court explicitly acknowledged that the OCSLA criteria

are “mandatory,” Seafreeze Shoreside, Inc., et al. 2023

U.S. Dist. LEXIS 183483, 2023 WL 6691015, at *44, and

proceeded from the premise that the BOEM must ensure

that “each criterion is met” in a manner that is “not to the

detriment of the other criteria.” Id.

The district court held only that the BOEM must

have “discretion” in considering whether each statutory

45a

Appendix A

criterion is satisfied, and that the BOEM must “balance”

the statutory mandate to develop energy projects on the

Outer Continental Shelf with the twelve statutory criteria

for which it must provide. The plaintiffs do not contest

either of these points; in fact, they appear to concede them.

See Reply Br. for Alliance at 3 (“[Defendants] incorrectly

argue that the Alliance takes an absolutist position,

arguing that [the BOEM] lacks any discretion at all in how

to satisfy OCSLA’s requirements. But this is not true.”).

In any event, the plaintiffs have not provided us with any

basis for concluding that the district court’s award of

summary judgment to the defendants was infected by a

misreading of OCSLA § 1337(p)(4).

Nor have the plaintiffs provided any other reason

to find that the BOEM acted arbitrarily or capriciously

under the OCSLA in approving the project. In focusing

exclusively on the district court’s alleged errors, the

plaintiffs ignore the joint ROD and a May 10, 2021,

information memorandum in which James F. Bennett, the

Program Manager for the BOEM’s Office of Renewable

Energy Programs, explains the conditions that the

BOEM imposed on the project and why approval of

the project, with those conditions, satisfies the OCSLA

§ 1337(p)(4) criteria. Instead, the plaintiffs simply point

to portions of the record which, when read in isolation,

appear to raise safety and environmental concerns.11

11. The plaintiffs also argue that the project likely will cause

commercial fisheries to abandon the project area due to difficulties

with navigation, in violation of OCSLA § 1337(p)(4). The plaintiffs

support the argument by pointing to a statement to this effect

that the Corps initially included in its section of the ROD but later

46a

Appendix A

The plaintiffs’ position appears to be that, if a project is

likely to have any modicum of impact on one or more of

the twelve OCSLA criteria, the BOEM cannot approve it.

See, e.g., Corrected Opening Br. for Seafreeze Pls. at 44

(challenging the district court’s conclusion that the BOEM

“still retains some discretion in considering whether the

enumerated statutory criteria have been satisfied, even

when the statute does not state so explicitly”) (citations

omitted). But see Reply Br. for Alliance at 3 (“[Defendants]

incorrectly argue that the Alliance takes an absolutist

position, arguing that [the BOEM] lacks any discretion

at all in how to satisfy the OCSLA’s requirements. But

this is not true.”).

This absolutist argument fails. A statute encouraging

the development of offshore wind projects but obligating

the BOEM to ensure that such projects be carried out in

a manner that provides for safety, for example, cannot

be read to prohibit project approval simply because one

could imagine the project being involved in an accident.

removed with a clarifying statement, issued in the form of an ROD

supplement, that inclusion of the statement “was based solely upon

comments of interested parties submitted to BOEM during the

public comment period” and “was not based upon any separate

or independent [Corps’] or other agency evaluation or study, and

accordingly does not represent the position of the [Corps] . . . .” The

plaintiffs contest the veracity of the Corps’ representation in the

ROD supplement, but the ROD, taken as a whole, bears out the Corps’

statement. See Supp. App. at 2016, Seafreeze Appeal (noting that the

proposed discharge of fill “will likely have minor, long-term effects on

recreational and commercial fisheries”); id. at 2023 (noting that the

project “will have neutral impacts to navigation during construction

and operation with the incorporation of mitigation”).

47a

Appendix A

If that is the plaintiffs’ position, we reject it. Moreover,

as was the case with their APA/CWA arguments, see

supra Part III-D, the plaintiffs’ record citations in

support of the claim that the BOEM did not ensure that

the COP would be carried out in a manner that provides

for the statutory criteria omit necessary context. They

fail to acknowledge either the mitigation requirements

that the BOEM imposed in response to the safety and

environmental concerns raised, or that the concerns were

raised in connection with alternatives that the BOEM had

rejected.

The district court did not err in awarding summary

judgment to the defendants on the plaintiffs’ APA/OCSLA

claims.

IV.

Before and after oral argument, we have received Fed.

R. App. P. 28(j) letters alerting us to recent developments

that have caused federal regulators to pause the project.

These incidents, occurring after the challenged agency

decisions, are not relevant to the arguments made in these

appeals. See Town of Winthrop, 535 F.3d at 14 (“[T]he

focal point for judicial review should be the administrative

record already in existence, not some new record made

initially in the reviewing court.”) (quoting Camp v. Pitts,

411 U.S. 138, 142, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973)).

For the reasons explained, we affirm the judgments

of the district court.

48a

Appendix B

APPENDIX B — MEMORANDUM

AND ORDER

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS,

FILED OCTOBER 12, 2023

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

1:22-cv-11091-IT

SEAFREEZE SHORESIDE, INC., et al.,

Plaintiffs,

v.

THE UNITED STATES DEPARTMENT

OF THE INTERIOR, et al.,

Defendants,

and

VINEYARD WIND 1, LLC,

Intervenor-Defendant.

1:22-cv-11172-IT

RESPONSIBLE OFFSHORE DEVELOPMENT

ALLIANCE,

Plaintiff,

v.

UNITED STATES DEPARTMENT

OF THE INTERIOR, et al.,

Defendants,

and

VINEYARD WIND 1, LLC,

Intervenor-Defendant.

October 12, 2023

49a

Appendix B

MEMORANDUM & ORDER

TALWANI, D.J.

Plaintiffs Seafreeze Shoreside, Inc. (“Seafreeze

Shor e side” ), Long Isl a nd Com mer c i a l F i sh i ng

Association, Inc. (“LICFA”), XIII Northeast Fishery

Sector, Inc. (“Sector XIII”), Heritage Fisheries, Inc.

(“Heritage Fisheries”), Nat. W., Inc. (“Nat. W.”) and Old

Squaw Fisheries, Inc. (“Old Squaw”) (collectively, the

“Seafreeze Plaintiffs”) and Plaintiff Responsible Offshore

Development Alliance (“Alliance”) brought the abovecaptioned lawsuits challenging actions taken by several

federal agencies and associated officials in the approval

of an offshore-wind energy project to be constructed and

operated by Intervenor-Defendant Vineyard Wind 1 LLC

(“Vineyard Wind”) in the Outer Continental Shelf off the

coast of Martha’s Vineyard and Nantucket, Massachusetts

(the “Vineyard Wind Project” or the “Project”).1

1. Seafreeze Shoreside, Inc., et al. v. The United States Dept.

of the Interior, et al., 1:22-cv-11091, and Responsible Offshore

Development Alliance v. United States Dept. of the Interior, et

al., 1:22-cv-11172, are referred to herein by their respective case

numbers.

Two other challenges to the Project were filed in this District

and are now on appeal. See Melone v. Coit, et al., 1:21-cv-11171-IT,

appeal docketed, No. 23-1736 (1st Cir. Sept. 8, 2023); Nantucket

Residents Against Turbines et al. v. U.S. Bureau of Ocean Energy

Mgmt., 1:21-cv-11390-IT, appeal docketed, 2023 U.S. Dist. LEXIS

86176, (together “the Related Actions”).

50a

Appendix B

Before the court in a consolidated proceeding are

cross-motions for summary judgment in Seafreeze , 1:22cv-11091, see Plaintiffs’ Motion for Summary Judgment,

Doc. No. 66, Defendants’ Motion for Summary Judgment,

Doc. No. 72, Vineyard Wind’s Motion for Summary

Judgment, Doc. No. 86; and in Responsible, 1:22-cv-11172,

see Plaintiff’s Motion for Summary Judgment, Doc. No.

52, Defendants’ Motion for Summary Judgment, Doc.

No. 59, Vineyard Wind’s Motion for Summary Judgment,

Doc. No. 73. For the reasons that follow, Plaintiffs’ Motions

for Summary Judgment are DENIED and Defendants’

and Vineyard Wind’s Motions for Summary Judgment

are GRANTED.

I.

Background

A.

Procedural Background

The Procedural Background is set forth in detail in

the court’s Memorandum and Order, 1:22-cv-11091, Doc.

No. 137; 1:22-cv-11172, Doc. No. 104, denying Plaintiffs’

Motions to Strike Documents from and Supplement the

Administrative Record, 1:22-cv-11091, Doc. No. 56; 1:22cv-11172, Doc. No. 43, and is incorporated by reference

herein.

B. Background Concerning the Project

The Background Concerning the Project is also set

forth in detail in the court’s Memorandum and Order,

1:22-cv-11091, Doc. No. 137; 1:22-cv-11172, Doc. No. 104,

and is incorporated by reference herein. The Background

51a

Appendix B

Concerning the Project is derived from the Administrative

Record common to the pending challenges and the Related

Actions. 2

The following further background concerning the

Project is also drawn from the Administrative Record, is

specific to the pending challenges, and was not at issue in

the Related Actions.

In considering Vineyard Wind’s application for a

permit under Section 404 of the Clean Water Act (“Section

404 Permit”) pertaining to the discharge of dredged and

fill materials that would occur along a 23.3 mile long

corridor as part of Vineyard Wind’s installation of the wind

energy facility, electronic service platforms, connections

between the wind turbine generators, service platforms,

and export cables, the A rmy Corps of Engineers

(“Corps”) considered the practicability of the following

alternatives to the proposed Vineyard Wind Project:

(a) one no-action alternative; (b) a largely land-based

alternative; (c) alternatives that would bring the cable on

shore in a different location; (d) two off-site alternatives

in other zones of the ocean; and (e) seven different onsite alternatives identified by Bureau of Ocean Energy

2. Certified Indices of the Administrative Record and addenda

were docketed electronically, see 1:22-cv-11091, Federal Defendants’

Notices, Doc. Nos. 26, 30, 34, 36; 1:22-cv-11172, Federal Defendants’

Notices, Doc. Nos. 17, 23; portions of the Administrative Record

reflected in the parties briefing are docketed electronically as part

of the parties’ Joint Appendices filed in connection with the crossmotions for summary judgment, 1:22-cv-11091, Doc. Nos. 104, 105;

1:22-cv-11172, Doc. Nos. 97, 98.

52a

Appendix B

Management (“BOEM”) in the Environmental Impact

Statement (“Final EIS”). Joint Record of Decision (“Joint

ROD”), BOEM_0076799 at -6830-31.

The Corps stated that in order to consider an

alternative “practicable,” the alternative “must be

available, achieve the overall project purpose (as defined

by USACE) and be feasible when considering cost,

logistics, and existing technology.” Id.

In issuing the Section 404 Permit to Vineyard Wind,

the Corps imposed certain “Special Conditions” on

Vineyard Wind as the permittee, including compliance

with all “mandatory terms and conditions to implement

the reasonable and prudent measures that are associated

with ‘incidental take’ that is also specified in the [Biological

Opinion (‘BiOp’)].” The Permit further specified that the

Permit is conditional on Vineyard Wind’s “compliance

with all of the mandatory terms and conditions associated

with incidental take of the attached [BiOp], and any future

[BiOp] that replaces it, which terms and conditions are

incorporated by reference into this [P]ermit.” Dep’t of

Army Permit, USACE_AR_012635 at -36.

C.

Plaintiffs’ Pending Claims

In reviewing the pending motions, the court considers

the following claims asserted by Plaintiffs.

53a

Appendix B

1.

C l a i m s u n d e r t he A d m i n i s t r at i ve

Procedure Act (“APA”) for Violations of

the Endangered Species Act

Plaintiffs allege that Defendant National Marine

Fisheries Service (“NMFS”) violated Section 7 of the

Endangered Species Act (“ESA”), 16 U.S.C. § 1536, and

attendant regulations by failing during the 2020 biological

consultation process (i) to consider the cumulative effects

of the proposed Project to endangered species or their

habitat (1:22-cv-11091, 9th Claim for Relief), or (ii) to

inform BOEM of alternatives to the proposed Project that

would avoid harming endangered species (1:22-cv-11091,

10th Claim for Relief), and that Defendants violated the

ESA and its implementing regulations by approving the

Vineyard Wind Construction Operations Plan (“COP”)

and issuing the Section 404 Permit without a valid BiOp

(1:22-cv-11172, Count 3). 3

3. The Seafreeze Plaintiffs’ ESA claims set forth in their 6th,

7th, 8th, 11th, 12th, 13th, 14th, 15th, and 16th Claims for Relief,

1:22-cv-11091, Complaint, Doc. No. 1, and portions of the Alliance’s

Count 3 asserting Defendants violated the ESA by (i) approving

minimal mitigation measures to protect the safety of endangered

species, and (ii) failing to rely on the best scientific and commercial

data available, 1:22-cv-11172, Complaint, Doc. No. 1, are waived

where neither the Seafreeze Plaintiffs nor the Alliance briefed these

claims. And although Seafreeze Shoreside and the Alliance submitted

60-day notice of intent to sue letters as required under the ESA to

commence a citizen-suit, 16 U.S.C. § 1540(g)(2)(A)(i), those letters did

not assert any violations pertaining to the 2021 BiOp. Accordingly,

Plaintiffs’ ESA challenges to the BiOp are limited to the 2020 BiOp.

54a

Appendix B

2.

Claims under the APA for Violations of

the Clean Water Act

Next, Plaintiffs allege that the Corps violated the

Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq., and

attendant regulations in issuing the Section 404 Permit

pertaining to the dredge and fill activities associated with

the Project by (i) failing to review practicable alternatives

to the Project outside of the Lease Area4 (1:22-cv-11091,

17th Claim for Relief; 1:22-cv-11172, Counts 2.2, 2.3), and

(ii) failing to consider the cumulative effects of multiple

similar projects in issuing the Section 404 Permit (1:22cv-11172, Count 2.4). 5

3.

Claims under the APA for Violations of

the Marine Mammal Protection Act

Next, Plaintiffs allege that NMFS violated the

Marine Mammal Protection Act (“MMPA”), 16 U.S.C.

§ 1371, and attendant regulations in issuing the Incidental

Harassment Authorization (“IHA”) (i) by failing to provide

evidence that the Project will only affect “small numbers,”

have a “negligible impact” on marine mammal species, or

be completed within one year of issuance of the IHA (1:224. The Lease Area covers the 166,886 acres of the Outer

Continental Shelf leased by BOEM to Vineyard Wind on April 1,

2015. See 1:22-cv-11172, Mem. & Order 5, Doc. No. 104.

5. The Seafreeze Plaintiffs’ CWA claims set forth in their 18th,

19th, and 20th Claims for Relief, 1:22-cv-11091, Complaint, Doc. No.

1, and the Alliance’s CWA claims set forth in Counts 2.1, 2.5, and 2.6,

1:22-cv-11172, Complaint, Doc. No. 1, are also waived where neither

the Seafreeze Plaintiffs nor the Alliance briefed these claims.

55a

Appendix B

cv-11091, 22nd Claim for Relief), and (ii) by improperly

relying on defects in the Corps’ CWA review, rendering

the issuance of the IHA arbitrary and capricious (1:22cv-11172, Count 5).6

4.

Claims under the APA for Violations of the

National Environmental Protection Act

Next, Plaintiffs allege that Defendants violated

various provisions of the National Environmental Policy

Act (“NEPA”), 42 U.S.C. § 4332, and attendant regulations

throughout the Project review process by:

(i) defining the purpose of the Action in

connection with the Vineyard Wind COP

too narrowly (1:22-cv-11091, 23rd Claim

for Relief; 1:22-cv-11172, Count 4.4);

(ii) failing to properly consider a range of

alternatives to the COP (1:22-cv-11091,

24th Claim for Relief; 1:22-cv-11172,

Count 4.1);

(iii)

failing to comply with requirements for

analyzing cumulative impacts of the

Project (1:22-cv-11091, 25th Claim for

Relief; 1:22-cv-11172, Count 4.2);

6. The Seafreeze Plaintiffs’ MMPA claim set forth in their 21st

Claim for Relief, 1:22-cv-11091, Complaint, Doc. No. 1, is also waived

where neither the Seafreeze Plaintiffs nor the Alliance briefed this

claim.

56a

Appendix B

(iv) f a i l i n g t o t a ke r e a s on able st ep s

considering the lack of information

relevant to reasonably foreseeable

significant adverse impacts (1:22-cv11091, 26th Claim for Relief);

(v) limiting the scope of the Final EIS to

the Vineyard Wind Project Area (1:22cv-11091, 27th Claim for Relief);

(vi) failing to make diligent efforts to involve

the public in the NEPA process (1:22-cv11091, 28th Claim for Relief);

(vii) inadequately addressing and disclosing

comments submitted by the public (1:22cv-11091, 29th, 30th Claims for Relief;

1:22-cv-11172, Count 4.5);

(viii) failing to prepare an EIS prior to issuing

the Lease (1:22-cv-11091, 31st Claim for

Relief; 1:22-cv-11172, Count 4.6);

(ix) improperly seg menting the NEPA

analysis (1:22-cv-11091, 32nd Claim for

Relief; 1:22-cv-11172, Count 4.6);

(x) relying on outdated NEPA regulations

(1:22-cv-11091, 33rd Claim for Relief;

1:22-cv-11172, Count 4.7);

(xi) withdrawing the EIS and reinitiating

it without supplementing to account for

57a

Appendix B

design changes (1:22-cv-11172, Count

4.3);

(xii) failing to consider the impacts of climate

change (1:22-cv-11172, Count 4.8).

5.

Claims under the APA for Violations of

the Outer Continental Shelf Lands Act

Finally, Plaintiffs have asserted that Defendants

have violated the Outer Continental Shelf Lands Act

(“OCSLA”), 43 U.S.C. § 1337, in connection with the

issuance of the Vineyard Wind Lease and review of the

Vineyard Wind COP by (i) adopting and applying the

“Smart from the Start” Initiative to the leasing process

in violation of 43 U.S.C. § 1337(p)(4)’s requirement that

BOEM consider a set list of criteria (1:22-cv-11091, 1st,

2nd, and 3rd Claims for Relief); (ii) resuming review of the

COP after Vineyard Wind withdrew and resubmitted it in

January 2021 (1:22-cv-11091, 4th Claim for Relief); and (iii)

adopting and approving the COP without considering and

providing for the factors set forth in 43 U.S.C. § 1337(p)(4)

(1:22-cv-11091, 5th Claim for Relief; 1:22-cv-11172, Counts

1.1, 1.2, 1.7).7

7. The Alliance’s OCSLA claims set forth in Counts 1.3, 1.4,

1.5, 1.6, 1.8, 1:22-cv-11172, Complaint, Doc. No. 1, are also waived

where neither the Seafreeze Plaintiffs nor the Alliance briefed

these claims.

The Alliance has conceded its claim under the Jones Act.

1:22-cv-11172, Hearing Tr. 7:4-10, Doc. No. 101.

58a

Appendix B

II. Standard of Review

Under Federal Rules of Civil Procedure 56(a),

summary judgment is appropriate when “the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter

of law.” A fact is material when, under the governing

substantive law, it could affect the outcome of the case.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Baker v. St. Paul

Travelers, Inc., 670 F.3d 119, 125 (1st Cir. 2012). A dispute

is genuine if a reasonable jury could return a verdict for

the non-moving party. Anderson, 477 U.S. at 248.

The moving party bears the initial burden of

establishing the absence of a genuine dispute of material

fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.

Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party

establishes the absence of a genuine dispute of material

fact, the burden shifts to the non-moving party to set forth

facts demonstrating that a genuine dispute of material

fact remains. Anderson, 477 U.S. at 250.

The non-moving party cannot oppose a properly

supported summary judgment motion by “rest[ing] upon

the mere allegations or denials of [the] pleading[s].”

Id. at 248. Disputes over facts “that are irrelevant or

unnecessary” will not preclude summary judgment.

Id. When reviewing a motion for summary judgment,

the court must take all properly supported evidence in

the light most favorable to the non-movant and draw

all reasonable inferences in the non-movant’s favor.

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).

“Credibility determinations, the weighing of the evidence,

59a

Appendix B

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge . . . ruling on a motion

for summary judgment.” Anderson, 477 U.S. at 255.

The fact that the parties have filed cross motions

does not alter these general standards; rather the court

reviews each party’s motion independently, viewing the

facts and drawing inferences as required by the applicable

standard, and determines, for each side, the appropriate

ruling. See Wightman v. Springfield Terminal Ry. Co.,

100 F.3d 228, 230 (1st Cir. 1996) (noting that cross-motions

for summary judgment do not “alter the basic Rule 56

standard” but rather require the court “to determine

whether either of the parties deserves judgment as a

matter of law on facts that are not disputed”).

A summary judgment motion has a “special twist in

the administrative law context.” Boston Redevelopment

Auth. v. Nat. Park Serv., 838 F.3d 42, 47 (1st Cir. 2016)

(quotations omitted). In an APA action, a motion for

summary judgment serves as “a vehicle to tee up a case for

judicial review and, thus, an inquiring court must review

an agency action not to determine whether a dispute of

fact remains but, rather, to determine whether the agency

action was arbitrary and capricious.” Id. (citing cases); see

also 5 U.S.C. § 706(2)(A) (“The reviewing court shall...

hold unlawful and set aside agency action...found to be...

arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law[.]”).

Because the APA affords great deference to agency

decision-making and agency actions are presumed valid,

“judicial review [under the APA], even at the summary

judgment stage, is narrow.” Assoc’d Fisheries of Maine,

60a

Appendix B

Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997) (citing

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 415-16, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971)).

Courts should “uphold an agency determination if it is

‘supported by any rational view of the record.’” Marasco

& Nesselbush, LLP v. Collins, 6 F.4th 150, 172 (1st Cir.

2021) (quoting Atieh v. Riordan, 797 F.3d 135, 138 (1st

Cir. 2015)). Even where an inquiring court disagrees with

the agency’s conclusions, the court cannot “‘substitute its

judgment for that of the agency.’” Boston Redevelopment

Auth., 838 F.3d at 47 (quoting Assoc’d Fisheries, 127 F.3d

at 109). Rather, an agency’s action should only be vacated

where the agency “has relied on factors which Congress

had not intended it to consider, entirely failed to consider

an important aspect of the problem, offered an explanation

for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to

a difference in view or the product of agency expertise.”

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551

U.S. 644, 658, 127 S. Ct. 2518, 168 L. Ed. 2d 467 (2007)

(quotations omitted).

III. Standing

Defendants challenge Plaintiffs’ standing to bring

claims under NEPA while Vineyard Wind challenges

Plaintiffs’ standing to bring claims under NEPA, ESA,

and MMPA. 8 The court considers first the evidence in the

record relating to Plaintiffs’ standing, and then whether

8. Vineyard Wind also challenged the Seafreeze Plaintiffs’

standing to bring a claim under the CWA but withdrew that

argument at the summary judgment hearing. 1.22-cv-11091, Hearing

Tr. 13:5-16, Doc. No. 112.

61a

Appendix B

Plaintiffs have standing to bring their claims under each

of the challenged statutes, addressing constitutional issues

first and then statutory issues.

A.

Evidence Relating to Plaintiffs’ Standing 9

1.

Old Squaw, Heritage Fisheries, and

Nat. W.

Seafreeze Plaintiffs Old Squaw, Heritage Fisheries,

and Nat. W. (the “Commercial Fishing Entities”) are

9. Vineyard Wind opposes numerous statements in Plaintiffs’

Statement of Undisputed Material Facts, 1:22-cv-11091, Doc.

No. 66. See Vineyard Wind Resp. to Seafreeze Pls.’ Statement of

Undisp. Material Facts, Doc. No. 88. First, Vineyard Wind opposes

many statements supported only by affidavits. See 1:22-cv-11091,

Intervenor’s Opening Mem. 28-31, Doc. No. 87 (disputing the

admissibility of statements such as those concerning Seafreeze

Shoreside’s interests, goals, and purported injuries). Where Fed. R.

Civ. P. 56(c)(4) permits affidavits or declarations “made on personal

knowledge [that] set out facts that would be admissible in evidence,

and [that] show that the affiant or declarant is competent to testify

on the matters stated,” the court considers the evidentiary weight

of these submissions under this standard for purposes of standing,

as discussed infra. Second, Vineyard Wind objects to Plaintiffs’

numerous citations outside of the Administrative Record where

Plaintiffs have not offered those materials through a motion to

supplement the Record. Id. at 31-33. Here, the court does not consider

statements relying on materials outside of the Administrative

Record where Plaintiffs have not addressed these in any motion to

supplement the Record or otherwise offered a basis for the court

to consider extra-record material. Finally, Vineyard Wind asserts

numerous statements of fact should be struck where Plaintiffs

mischaracterize the Administrative Record. The court looks directly

to the Administrative Record, as discussed in its Memorandum

and Order, 1:22-cv-11172, Doc. No. 137, rather than the parties’

characterizations of the Administrative Record.

62a

Appendix B

each commercial fishing companies that engage in trawl

fishing10 for squid.

a.

Evidence Offered as to Economic

Injury

Declarant David Aripotch, the owner and president

of Old Squaw and captain of its boat, the F/V Caitlin &

Mairead, states that the F/V Caitlin & Mairead trawl

fishes in the Atlantic Ocean off the coast of Massachusetts

to the coast of North Carolina. 1:22-cv-11091, Aripotch

Decl. ¶¶ 2, 5, 11, Doc. No. 66-1. Aripotch states that the

F/V Caitlin & Mairead typically takes 25-40 trips per

year to the Lease Area for squid. Id. at ¶¶ 8-9. Aripotch

states further that, in a typical year, Old Squaw generates

$175,000-$350,000 in annual revenues from fishing

expeditions for squid in the Lease Area and that this

accounts for roughly 30% of Old Squaw’s revenue in a given

year. Id. at ¶ 12. Aripotch states that Old Squaw will lose

this revenue if construction and operation of the Project

go forward as contemplated by the COP. Id. at ¶ 19.

Aripotch states that the spacing of the Vineyard

Wind turbines “will not allow for safe transit lanes in

the Vineyard Wind area for the F/V Caitlin & Mairead”

because one nautical mile of distance “is not enough room

to risk getting through[.]” Id. at ¶ 14. Aripotch also states

10. Trawl fishing involves pulling a net towed by steel wires and

spread open by steel doors to harvest squid and other fish at the ocean

bottom. 1:22-cv-11091, Decl. of David Aripotch (“Aripotch Decl.”)

¶ 10, Doc. No. 66-1; 1:22-cv-11091, Decl. of Thomas E. Williams, Sr.

(“Williams Sr. Decl.”) ¶ 15, Doc. No. 66-2.

63a

Appendix B

that the wind turbines, when operational, will interfere

with marine radar. Id. at ¶ 15. Aripotch contends that

commercial fishing will become untenable for his boat in

the Lease Area because trawl fishing gear will become

entangled. Id.11 Finally, Aripotch states that the F/V

Caitlin & Mairead will be unable to fish in the Wind

Energy Area during the Project’s construction because

of the safety risks associated with certain construction

activities, such as the installation of cables or installation

of armoring with boulders, and that those safety risks will

remain after the construction is complete and the Project

is operational. Id. at ¶¶ 16-17.

Aripotch states that the risks posed to the F/V Caitlin

& Mairead will also disrupt and displace squid in the Area

and impact the marine ecosystem in ways that will further

impact Old Squaw’s ability to fish in the Lease Area. Id. at

¶ 20.12 Aripotch states that, because of the Lease issuance

and COP approval, Old Squaw will no longer be able to fish

for squid in the Lease Area and will lose approximately

30% of its revenue as a result. Id. at ¶ 19.

Declarant Thomas E. Williams, Sr., the owner and

President of Heritage Fisheries and Nat. W., states that,

11. Aripotch relies on the Final EIS Vol. 1, BOEM_0068434

at -717, -18, -22, --224, -225, which states that entanglement is a

possibility that could impact fishing businesses.

12. Additionally, Aripotch states that it is his understanding

that the Vineyard Wind Project will result in environmental and

ecological harms to numerous marine species. Id. at ¶¶ 29-30.

Aripotch’s declaration does not show, however, that he is competent

to testify to this assertion.

64a

Appendix B

in a typical year, Heritage Fisheries, which owns and

operates the F/V Heritage, generates $290,000 in annual

revenues from trawl fishing for squid in the Lease Area,

accounting for approximately 30% of Heritage Fisheries

total annual revenues in any given year. 1:22-cv-11091,

Williams Sr. Decl. ¶¶ 2, 4-5, 17, Doc. No. 66-2. Williams

states further that Nat. W., which owns and operates

the F/V Tradition, generates roughly $490,000 in annual

revenues from trawl fishing for squid in the Lease Area,

accounting for approximately 65% of Nat. W.’s total annual

revenues in any given year. Id. at ¶¶ 5, 18. Like Aripotch,

Williams states that his companies will be unable to

engage in trawl fishing in the Lease Area because (i) the

spacing of the turbines will not allow for safe passage,

(ii) the turbines will interfere with vessel radar, making

passage more dangerous for his companies’ boats, and

(iii) protections around cables and foundations will cause

gear to become tangled. Id. at ¶¶ 20, 23. Williams states

that the Vineyard Wind Project will cause both Heritage

Fisheries and Nat. W. to lose out on the annual revenues

attributable to fishing in the Lease Area. Id. at ¶ 22.13

Vineyard Wind disputes Plaintiffs’ representations

regarding the frequency and duration of fishing trips

13. Williams also contends that the construction activities and

operation of the turbines will affect the water quality in the Lease

Area and beyond, which will displace not only squid, but other

marine life, affecting the entire ecosystem and further impacting

Heritage Fisheries and Nat. W.’s abilities to fish in the Lease Area.

Id. at ¶ 24. Williams states this “impact” constitutes pollution of

the waters and degradation of all living things in the waters. Id.

Williams’ declaration does not show, however, that he is competent

to testify to these assertions.

65a

Appendix B

by Plaintiffs Old Squaw, Heritage Fisheries, and Nat.

W. See 1:22-cv-11091, Intervenor’s Opening Mem. 3 n.1,

Doc. No. 87. Vineyard Wind offers the expert opinion of

R. Douglass Scott, PhD., P. Eng., a Principal with W.F.

Baird & Associates Ltd., reflecting, based on Automatic

Identification System (“AIS”) tracking data, that the total

time between January 2016 and 2022 spent in the Lease

Area by Old Squaw’s vessel (the F/V Caitlin & Mairead)

was 21.2 hours, by Heritage Fisheries’ vessel (the F/V

Heritage) was 0.4 hours, and by Nat. W.’s vessel (the F/V

Tradition) was 6.2 hours, for a total time of 27.7 hours

over six years. See 1:22-cv-11091, Vineyard Wind Resp.

to Seafreeze Pls.’ Statement of Undisp. Material Facts

¶¶ 100-102, Doc. No. 88; 1:22-cv-11091, Decl. of R. Douglas

Scott in Supp. of Intervenor’s Cross-Mot. for Summ. J.

and in Opp’n to Pls. Mot. for Summ. J., Doc. No. 86-1.14

Defendants also dispute that the Project will result in

the cessation of commercial fishing in the Lease Area. 1:22cv-11091, Fed. Defs.’ Resp. to Seafreeze Pls.’ Statement

of Undisp. Material Facts ¶¶ 9-11, Doc. No. 76 (citing

BOEM Info. Mem. dated May 21, 2021, BOEM_0076922 at

-942-44 (reflecting that “the navigational risk assessment

prepared for the Project shows that it is technically

feasible to navigate and maneuver fishing vessels and

mobile gear through the WDA.”) and Final EIS, Vol. 1

BOEM_0068434 at -68718 (discussing impacts in the WDA

14. Plaintiffs dispute that AIS data is an accurate reflection of

their fishing activities in the Lease Area where none of the Plaintiffs’

vessels are required to carry or use AIS, and, instead, voluntarily

use AIS, but typically not when fishing. See 1:22-cv-11091, Third

Decl. of David Aripotch ¶¶ 4-6, Doc. No. 90-3; 1:22-cv-11091, Second

Decl. of Thomas E. Williams, Sr. ¶¶ 8-9, Doc. No. 90-4.

66a

Appendix B

that may impact fishing activities) and BOEM_006874344 (acknowledging concerns from commercial fishing

interests about the ability to safely navigate the WDA but

noting, “fishing vessels, including those involved in line,

trawl, and drag fishing, would be able to work in the area;

however vessel operators would need to take the [wind

turbine generators] and [electrical service platforms]

into account as they set their courses[.]”). Vineyard Wind

states that the Lease Area was selected to minimize

conflicts with commercial fishing and because it does not

have high relative revenue as compared to nearby waters.

See 1:22-cv-11091, Vineyard Wind Resp. to Seafreeze Pls.’

Statement of Undisp. Material Facts ¶¶ 9-11, Doc. No.

88 (citing Final EIS, Vol. 1 for proposition that, during

the leasing process, and in response to public comments,

BOEM identified “high value fishing areas...and removed

[them] prior to leasing.” Final EIS Vol. 1, BOEM_0068434

at -725).

In sum, there is a dispute of material facts as to the

extent of any economic harm that the Commercial Fishing

Entities may suffer. For purposes of Defendants’ and

Intervenor’s Motions for Summary Judgment, however,

and considering the evidence in the light most favorable to

the Commercial Fishing Entities, the court finds that the

Commercial Fishing Entities have demonstrated that they

trawl fish in the Lease Area and may lose an unquantified

sum of the revenue attributable to their trawl-fishing

activities in the Lease Area.

67a

Appendix B

b.

Evidence Offered as to Non-Economic

Injury

Aripotch states that, in addition to economic interests

in the Lease Area, he also has environmental and aesthetic

interests in the Lease Area. He states that the Project

will impact the aesthetic and spiritual pleasures he derives

from fishing in the Vineyard Wind Lease Area. 1:22-cv11091, Aripotch Decl. ¶ 21, Doc. No. 66-1. In particular,

while engaged in commercial fishing in the Vineyard Wind

Lease Area, Aripotch tries to bring his camera to capture

the wildlife. Id. at ¶ 25. He observes right whales and

other marine life. Id. He plans to continue fishing in the

Lease Area, and observing marine mammals, “through

the foreseeable future if the Vineyard Wind lease and

COP are vacated.” Id. at ¶ 28.15

Williams states that the impact the Vineyard Wind

Project will have on the Vineyard Wind Lease Area will

harm not only his business but also the aesthetic and

emotional pleasures he derives from fishing. 1:22-cv-11091,

Williams Sr. Decl. ¶ 25, 28, Doc. No. 66-2.16 Williams’ sons,

15. Aripotch also states that he fears the Project will destroy

the area that his family, and many others, depend on for their food

supply. Id. at ¶ 24. Aripotch’s affidavit does not show that he is

competent to testify as to the alleged destruction of the area.

16. Williams also states that it is his understanding that the

impacts of the Project “will result in a sizeable overall decrease in

the food supply” that will negatively affect food availability for all

Americans, including his family. 1:22-cv-11091, Williams Sr. Decl.

¶ 28, Doc. No. 66-2. Again, Williams’ affidavit does not show that he

is competent to testify to these assertions.

68a

Appendix B

who serve as captains of the F/V Heritage and the F/V

Tradition, each likewise states that he takes pleasure

in observing marine life, including right whales, while

fishing in the Lease Area. 1:22-cv-11091, Decl. of Thomas

H. Williams ¶ 25, Doc. No. 66-3; see 1:22-cv-11091, Decl.

of Aaron Williams ¶ 27, Doc. No. 66-4.

Defendants dispute that statements of individual

owners’ aesthetic and emotional interests can be imputed

to the Plaintiff corporations. See 1:22-cv-11091, Fed. Defs.’

Opening Mem. 8, Doc. No. 73. Defendants also assert that

the record directly conflicts these individuals’ assertions

where (i) NMFS has concluded there will be no adverse

impacts to right whales other than temporary harassment

of a small number of right whales due to exposure to pile

driving noises, and (ii) that the Corps considered the

Project’s effects on food and fiber production as part of

its public interest review and determined that the Project

would have no effect on the food supply. 1:22-cv-11091,

Fed. Defs.’ Resp. to Seafreeze Pls.’ Statement of Undisp.

Material Facts ¶¶ 167, 120, Doc. No. 76.

The court concludes the Commercial Fishing Entities

have not demonstrated any non-economic injury where the

competent evidence proffered relates to the interests of

their owners and not to the Commercial Fishing Entities

themselves.

2.

Seafreeze Shoreside

Plaintiff Seafreeze Shoreside is a seafood dealer

located in Narragansett, Rhode Island. 1:22-cv-11091,

Decl. of Arthur Ventrone (“Ventrone Decl.”) ¶ 4, Doc. No.

69a

Appendix B

66-7; see also 1:22-cv-11091, Decl. of Meghan Lapp (“Lapp

Decl.”) ¶ 3, Doc. No. 66-8.

a.

Evidence Offered as to Economic

Injury

Declarant Arthur Ventrone, Seafreeze Shoreside’s

Treasurer, states that Seafreeze Shoreside purchases,

sells, and processes fish product, primarily squid. 1:22-cv11091, Ventrone Decl. ¶ 2, 4, Doc. No. 66-7. Ventrone states

that Seafreeze Shoreside generates substantial revenue

from squid seafood product brought in by commercial

fishermen from the Lease Area and that, while revenues

vary annually, catches from the Lease Area are “a

consistently high percentage of [Seafreeze Shoreside’s]

total annual revenues year after year.” Id. at ¶ 10.

Ventrone states that, in 2016, 19% of Seafreeze Shoreside’s

total revenue, or $1.7 million, was attributable to catches

in the “Vineyard Wind area.” Id. Ventrone states that it

is his understanding that commercial fishing in the Lease

Area will “become untenable” as a result of the Vineyard

Wind Project, and that, as a result, Seafreeze Shoreside

will process less squid, and will experience a “substantial

loss of revenues.” Id. at ¶¶ 8-11. Ventrone also states that

it is his understanding that squid will be displaced from

the Lease Area as a result of the Project’s impact to squid

habitat, and that, even if commercial fishermen could

continue fishing in the Area, the catch would be “severely

reduced or nonexistent.” Id. at ¶ 9.17

17. Although Ventrone has not demonstrated that he is

competent to testify as to any reduction in commercial fishing in

the Lease Area, the Aripotch and Williams Sr. affidavits detailed

70a

Appendix B

Declarant Meghan Lapp, Seafreeze Shoreside’s

Fisheries Liaison and Assistant General Manager, states

that the pile driving and operational noise from the Project

will negatively impact the habitats longfin squid and other

species, and thus impact Seafreeze Shoreside. 1:22-cv11091, Lapp Decl. ¶¶ 2, 45-50, Doc. No. 66-8.

Defendants dispute that the construction and

operation of the Vineyard Wind Project will result in

the cessation of commercial fishing in the Vineyard

Wind Lease Area. 1:22-cv-11091, Fed. Defs.’ Resp. to

Seafreeze Pls.’ Statement of Undisp. Material Facts

¶ 6, Doc. No. 76 (citing BOEM Info. Mem. dated May

21, 2021, BOEM_0076922 at -942-44, Final EIS, Vol. 1

BOEM_0068434 at -718 and -743-44). Defendants also

dispute that the Project will have adverse impacts on

the squid habitat where Plaintiffs’ only support for this

proposition are the statements of employee declarants,

who Defendants contend offer opinions and understanding

in lieu of expertise, and Seafreeze Shoreside’s own

comments in the Administrative Record. See id. at ¶ 166.

Vineyard Wind disputes that Seafreeze Shoreside

derives substantial revenue from the Lease Area, stating

that the Lease Area was selected to minimize conflicts

with commercial fishing and because it does not have

high relative revenue as compared to nearby waters.

See 1:22-cv-11091, Vineyard Wind Resp. to Seafreeze

Pls.’ Statement of Undisp. Material Facts ¶ 6, Doc. No.

88 (citing Final EIS, Vol. 1 for proposition that, during

above regarding their anticipated reduction in trawling for squid, are

sufficient to allow the court to consider Ventrone’s further statement

that Seafreeze Shoreside will process less squid.

71a

Appendix B

the leasing process, and in response to public comments,

BOEM identified “high value fishing areas...and removed

[them] prior to leasing.” Final EIS Vol. 1, BOEM_0068434

at -725).

As above, there is a dispute of material facts as

to the extent of any economic harm that Seafreeze

Shoreside may suffer. For purposes of Defendants’ and

Intervenor’s Motions for Summary Judgment, however,

and considering the evidence in the light most favorable

to Seafreeze Shoreside, the court finds that Seafreeze

Shoreside has demonstrated that its suppliers trawl fish

in the Lease Area and that Seafreeze Shoreside may lose

an unquantified sum of the revenue attributable to the loss

of its suppliers’ trawl-fishing activities in the Lease Area.

b.

Evidence offered as to Non-Economic

Injury

Lapp states that “Seafreeze [Shoreside] has a keen

interest in protecting the purity and cleanliness” of the

Outer Continental Shelf, not only for economic reasons,

but also because “environmental degradation” from the

Vineyard Wind Project would take away “from Seafreeze

[Shoreside] employees’ aesthetic, psychological, emotional,

and spiritual pleasures of working as part of a fishing

community reliant on those waters.” 1:22-cv-11091, Lapp

Decl. ¶ 52, Doc. No. 66-8.

Vineyard Wind disputes that Plaintiffs have asserted

any of its own legal rights and interests. See 1:22-cv-11091,

Intervenor’s Opening Mem. 4-5, Doc. No. 87.

72a

Appendix B

As with the Commercial Fishing Entities, Seafreeze

Shoreside has not shown that Seafreeze Shoreside, as

opposed to its employees, have suffered any non-economic

injuries where it has offered no evidence to that effect.

3.

LICFA, Sector XIII, and the Alliance

Seafreeze Plaintiffs LICFA and Sector XIII,

and Responsible Plaintiff Alliance (collectively, the

“Associations”), are associations representing commercial

fishing interests.

a.

Evidence Offered as to Associations’

Membership and Purposes

LICFA represents over 150 fishing businesses, boats,

and fishermen from multiple ports on Long Island, New

York. 1:22-cv-11091, Decl. of Bonnie Brady (“Brady

Decl.”) ¶ 3, Doc. No. 66-6. LICFA and its members

“support extensive cooperative scientific research to

better understand the marine environment and fisheries

management.” Id. at ¶ 4.

Sector XIII is a private organization of commercial

fishermen that monitors compliance with fishing permits

and supports the commercial fishing industry along

the Atlantic Coast. 1:22-cv-11091, Decl. of John Haran

(“Haran Decl.”) ¶ 3, Doc. No. 66-5.

Plaintiff Alliance is a not-for-profit trade association

headquartered in Washington, D.C., comprised of fishing

associations and fishing companies, whose members own

73a

Appendix B

and operate more than 120 vessels and conduct business

in more than 30 fisheries throughout the country. 1:22-cv11172, Joint SOF ¶ 1, Doc. No. 99; 1:22-cv-11172, Decl. of

Anne Hawkins (“Hawkins Decl.”) ¶ 2, Doc. No. 53-1. One

of the Alliance’s members is Town Dock, which is one of

the largest producers of squid in the United States. 1:22cv-11172, Decl. of Katie Almeida (“Almeida Decl.”) ¶¶ 1-2,

Doc. No. 77-2. The Alliance is committed to improving

the compatibility of new offshore development with its

members’ fishing-related businesses. 1:22-cv-11172,

Hawkins Decl. ¶ 2, Doc. No. 53-1. Hawkins states that

Defendants’ approval of the Vineyard Wind Project has

“frustrated the very purpose for which the Alliance was

formed[.]” Id. at ¶ 8.

b.

Evidence offered as to Economic

Injury

Each association offers as injury the economic injury

of its members, primarily as detailed above. See 1:22-cv11091, Brady Decl. ¶¶ 6, 19-22, Doc. No. 66-6 (the presence

and good health of numerous species of marine life in the

Lease Area is vital to LICFA members); 1:22-cv-11091,

Second Decl. of David Aripotch (“2d Aripotch Decl.”) ¶ 4,

Doc. No. 90-1 (Aripotch and Old Squaw are members of

LICFA and LICFA represents Aripotch’s “economic . . .

interests as a commercial fisherman”); see also 1:22cv-11091, Second Decl. of Bonnie Brady (“2d Brady

Decl.”) ¶ 4, Doc. No. 90-2 (“LICFA, as an association

of commercial fishermen, represents the economic . . .

interests of David Aripotch in hi

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