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Public Employees for Environmental Responsibility v. Beaudreu

United States District Court, District of Columbia

March 14, 2014

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al., Plaintiffs,
v.
TOMMY P. BEAUDREU, et al., [1] Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. ALLIANCE TO PROTECT NANTUCKET SOUND, et al., Plaintiffs,
v.
SALLY JEWELL, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. TOWN OF BARNSTABLE, MASSACHUSETTS, Plaintiff,
v.
SALLY JEWELL, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor. THE WAMPANOAG TRIBE OF GAY HEAD (AQUINNAH), Plaintiff,
v.
TOMMY P. BEAUDREU, et al., Defendants, CAPE WIND ASSOCIATES, LLC, Intervenor

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For PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, CETACEAN SOCIETY INTERNATIONAL, LOWER LAGUNA MADRE FOUNDATION, CALIFORNIANS FOR RENEWABLE ENERGY, THREE BAYS PRESERVATION (1:10-cv-01067-RBW-DAR), Plaintiffs: Benjamin S. Sharp, PERKINS COIE, LLP, Washington, DC; Eric Robert Glitzenstein, William Stewart Eubanks, II, MEYER GLITZENSTEIN & CRYSTAL, Washington, DC; Jessica Almy, Washington, DC.

For ALLIANCE TO PROTECT NANTUCKET SOUND (1:10-cv-01067-RBW-DAR), Plaintiff: Jennifer A. MacLean, LEAD ATTORNEY, PERKINS COIE, LLP, Washington, DC; Tyler Guy Welti, LEAD ATTORNEY, Elisabeth C. Frost, PRO HAC VICE, Benjamin S. Sharp, Donald Christian Baur, PERKINS COIE LLP, Washington, DC; Eric Robert Glitzenstein, William Stewart Eubanks, II, MEYER GLITZENSTEIN & CRYSTAL, Washington, DC; Jessica Almy, Washington, DC.

For CINDY LOWRY, MARTHA POWERS (1:10-cv-01067-RBW-DAR), Plaintiffs: Benjamin S. Sharp, Jennifer A. MacLean, PERKINS COIE, LLP, Washington, DC; Eric Robert Glitzenstein, William Stewart Eubanks, II, MEYER GLITZENSTEIN & CRYSTAL, Washington, DC; Jessica Almy, Washington, DC.

For BARBARA DURKIN (1:10-cv-01067-RBW-DAR), Plaintiff: Tyler Guy Welti, LEAD ATTORNEY, PRO HAC VICE, Benjamin S. Sharp, Donald Christian Baur, Jennifer A. MacLean, PERKINS COIE LLP, Washington, DC; Eric Robert Glitzenstein, William Stewart Eubanks, II, MEYER GLITZENSTEIN & CRYSTAL, Washington, DC; Jessica Almy, Washington, DC.

For TOWN OF BARNSTABLE, MASSACHUSETTS, 10cv1073 (1:10-cv-01067-RBW-DAR), Plaintiff: William Eric Pilsk, LEAD ATTORNEY, Charles Alan Spitulnik, KAPLAN KIRSCH & ROCKWELL, LLC, Washington, DC; Benjamin S. Sharp, PERKINS COIE, LLP, Washington, DC.

For RON BORJESON, 10cv1079, JEFF GOOD, 10cv1079, NEIL GOOD, 10cv1079, ROBERT BUSSIERE, 10cv1079, CAMERON DAWSON, 10cv1079, PATRICIA J. DINEEN, 10cv1079, DAVID MORIARTY, 10cv1079, WILLIAM H. RYPKA, 10cv1079, RICHARD KLEIN, 10cv1079, PAULINE K. KLEIN, 10cv1079, BARBARA JEAN PENNICK, 10cv1079, LOU GONZAGA, 10cv1079, FRANK CARUSO, 10cv1079, JAMES R. POWELL, 10cv1079 (1:10-cv-01067-RBW-DAR), Plaintiffs: Jennifer A. MacLean, LEAD ATTORNEY, PERKINS COIE, LLP, Washington, DC; Tyler Guy Welti, LEAD ATTORNEY, PRO HAC VICE, Benjamin S. Sharp, Donald Christian Baur, PERKINS COIE LLP, Washington, DC.

For JAMES KEDING, 10cv1079 (1:10-cv-01067-RBW-DAR), Plaintiff: Jennifer A. MacLean, LEAD ATTORNEY, Benjamin S. Sharp, Donald Christian Baur, PERKINS COIE, LLP, Washington, DC.

For HEATHER ROCKWELL, 10cv1079 (1:10-cv-01067-RBW-DAR), Plaintiff: Tyler Guy Welti, LEAD ATTORNEY, PRO HAC VICE, Benjamin S. Sharp, Donald Christian Baur, Jennifer A. MacLean, PERKINS COIE LLP, Washington, DC.

For RICHARD LARGAY (1:10-cv-01067-RBW-DAR), Plaintiff: Benjamin S. Sharp, Jennifer A. MacLean, PERKINS COIE, LLP, Washington, DC; Eric Robert Glitzenstein, MEYER GLITZENSTEIN & CRYSTAL, Washington, DC; Jessica Almy, Washington, DC.

For CHRISTOPHER BIRDSEY, CROCKER SNOW, JR. (1:10-cv-01067-RBW-DAR), Plaintiffs: Benjamin S. Sharp, Jennifer A. MacLean, LEAD ATTORNEYS, PERKINS COIE, LLP, Washington, DC; Tyler Guy Welti, LEAD ATTORNEY, PRO HAC VICE, PERKINS COIE LLP, Washington, DC.

For WAMPANOAG TRIBE OF GAY HEAD, (AQUINNAH) ; 11cv1238 (1:10-cv-01067-RBW-DAR), Plaintiff: Thomas M. Gremillion, LEAD ATTORNEY, INSTITUTE FOR PUBLIC REPRESENTATION, Washington, DC; Hope Madeline Babcock, GEORGETOWN UNIVERSITY LAW CENTER, Washington, DC.

For KENNETH LEE SALAZAR, Secretary, U.S. Department of the Interior, ERIC C. SCHWAAB, Assistant Administrator, National Marine Fisheries Service, ROBERT J. PAPP, JR., Admiral, in his official capacity; 10cv1079, UNITED STATES ARMY CORPS OF ENGINEERS, BUREAU OF OCEAN ENERGY MANAGEMENT, MERDITH W.B. TEMPLE, Major General in his official capacity as Commanding General, United States Army Corps of Engineers (1:10-cv-01067-RBW-DAR), Defendants: Erik Edward Petersen, Robert Pendleton Williams, LEAD ATTORNEYS, Jessica O'Donnell, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Luther L. Hajek, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO; Clifford Eugene Stevens, Jr., U.S. DEPARTMENT OF JUSTICE, ENRD, Wildlife and Marine Resources Section, Washington, DC; Kristofor R. Swanson, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC; Reuben S. Schifman, DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Natural Resources Section, Washington, DC.

For GARY LOCKE, Secretary, U.S. Department of Commerce, UNITED STATES DEPARTMENT OF THE INTERIOR, 10cv1073, ROWAN GOULD, Acting Director, U.S. Fish and Wildlife Service (1:10-cv-01067-RBW-DAR), Defendants: Luther L. Hajek, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO; Robert Pendleton Williams, LEAD ATTORNEY, Erik Edward Petersen, Jessica O'Donnell, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Clifford Eugene Stevens, Jr., U.S. DEPARTMENT OF JUSTICE, ENRD, Wildlife and Marine Resources Section, Washington, DC; Kristofor R. Swanson, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC; Reuben S. Schifman, DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Natural Resources Section, Washington, DC.

For U.S. COAST GUARD, 10cv1079 (1:10-cv-01067-RBW-DAR), Defendant: Erik Edward Petersen, Robert Pendleton Williams, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Luther L. Hajek, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO; Clifford Eugene Stevens, Jr., U.S. DEPARTMENT OF JUSTICE, ENRD, Wildlife and Marine Resources Section, Washington, DC; Kristofor R. Swanson, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC; Reuben S. Schifman, DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Natural Resources Section, Washington, DC.

For BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION, AND ENFORCEMENT, 11cv1238 formerly known as MINERALS MANAGEMENT SERVICE (1:10-cv-01067-RBW-DAR), Defendant: Kristofor R. Swanson, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC; Luther L. Hajek, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO; Robert Pendleton Williams, LEAD ATTORNEY, Erik Edward Petersen, Jessica O'Donnell, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Clifford Eugene Stevens, Jr., U.S. DEPARTMENT OF JUSTICE, ENRD, Wildlife and Marine Resources Section, Washington, DC; Reuben S. Schifman, DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Natural Resources Section, Washington, DC.

For TOMMY P. BEAUDREAU, Director, U.S. Bureau of Ocean Energy Management (1:10-cv-01067-RBW-DAR), Defendant: Robert Pendleton Williams, LEAD ATTORNEY, Erik Edward Petersen, Jessica O'Donnell, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC; Clifford Eugene Stevens, Jr., U.S. DEPARTMENT OF JUSTICE, ENRD, Wildlife and Marine Resources Section, Washington, DC; Kristofor R. Swanson, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC; Luther L. Hajek, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO; Reuben S. Schifman, DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Natural Resources Section, Washington, DC.

For CAPE WIND ASSOCIATES, LLC (1:10-cv-01067-RBW-DAR), Intervenor Defendant: Christopher H. Marraro, Geraldine E. Edens, Thomas Edward Hogan, LEAD ATTORNEYS, BAKER HOSTETLER LLP, Washington, DC.

For CONSERVATION LAW CENTER (1:10-cv-01067-RBW-DAR), Movant: Andrea C. Ferster, LEAD ATTORNEY, Andrea C. Ferster, Washington, DC.

For CONSERVATION LAW FOUNDATION (1:10-cv-01067-RBW-DAR), Amicus: Benjamin Longstreth, NATURAL RESOURCES DEFENSE COUNCIL, Washington, DC; Jerome C. Muys, Jr., SULLIVAN & WORCESTER LLP, Washington, DC.

For NATURAL RESOURCES DEFENSE COUNCIL, MASS AUDUBON (1:10-cv-01067-RBW-DAR), Amicus: Jerome C. Muys, Jr., LEAD ATTORNEY, SULLIVAN & WORCESTER LLP, Washington, DC; Benjamin Longstreth, NATURAL RESOURCES DEFENSE COUNCIL, Washington, DC.

For NATIONAL TRUST FOR HISTORIC PRESERVATION IN THE UNITED STATES (1:10-cv-01067-RBW-DAR), Amicus: Elizabeth Sherrill Merritt, LEAD ATTORNEY, NATIONAL TRUST FOR HISTORIC PRESERVATION, Washington, DC.

For AMERICAN BIRD CONSERVANCY (1:10-cv-01067-RBW-DAR), Amicus: Andrea C. Ferster, LEAD ATTORNEY, Andrea C. Ferster, Washington, DC; W. William Weeks, LEAD ATTORNEY, CONSERVATION LAW CENTER, Bloomington, IN.

For WHALE AND DOLPHIN CONSERVATION, North America (WDC-NA) (1:10-cv-01067-RBW-DAR), Amicus: James B. Dougherty, LEAD ATTORNEY, LAW OFFICE OF J.B. DOUGHERTY, Washington, DC.

For CAPE COD MARINE TRADES ASSOCIATION, INC., MASSACHUSETTS FISHERMEN'S PARTNERSHIP, INC. (1:10-cv-01067-RBW-DAR), Amicus: John Kennedy Fulweiler, Jr., LEAD ATTORNEY, PRO HAC VICE, Newport, RI; Todd D. Lochner, LEAD ATTORNEY, LOCHNER LAW FIRM, PC, Annapolis, MD.

For TOWN OF BARNSTABLE, Massachusetts (1:10-cv-01073-RMU), Plaintiff: William Eric Pilsk, LEAD ATTORNEY, KAPLAN KIRSCH & ROCKWELL, LLC, Washington, DC; Charles Alan Spitulnik, KAPLAN KIRSH & ROCKWELL, LLP, Washington, DC.

For KENNETH LEE SALAZAR, In his Official Capacity as Secretary of the Interior., UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION, AND ENFORCEMENT, United States Department of the Interior., MICHAEL BROMWICH, In his Official Capacity as Director, Bureau of Ocean Energy Management, Regulation, and Enforcement. (1:10-cv-01073-RMU), Defendants: Luther L. Hajek, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO.

For CAPE WIND ASSOCIATES, LLC (1:10-cv-01073-RMU), Intervenor Defendant: Geraldine E. Edens, LEAD ATTORNEY, BAKER HOSTETLER, LLP, Washington, DC; Daniel G. Jarcho, Elisabeth L. Shu, Frederick Randolph Anderson, MCKENNA LONG & ALDRIDGE, LLP, Washington, DC.

For ALLIANCE TO PROTECT NANTUCKET SOUND, RON BORJESON, JEFF GOOD, JAMES KEDING, NEIL GOOD, ROBERT BUSSIERE, CAMERON DAWSON, PATRICIA J. DINEEN, DAVID MORIARTY, WILLIAM H. RYPKA, RICHARD KLEIN, PAULINE K. KLEIN, ANTHONY R. JESSEN, HEATHER ROCKWELL, BARBARA JEAN PENNICK, LOU GONZAGA, FRANK CARUSO, JAMES R. POWELL (1:10-cv-01079-RMU), Plaintiffs: Benjamin S. Sharp, LEAD ATTORNEY, PERKINS COIE, LLP, Washington, DC.

For KENNETH LEE SALAZAR, in his official capacity, Secretary of the Interior, U.S. DEPARTMENT OF THE INTERIOR, MICHAEL R. BROMWICH, in his official capacity, Director, Bureau of Ocean Energy Management, BUREAU OF OCEAN ENERGY MANAGEMENT, ROBERT J. PAPP, JR., ADMIRAL; in his official capacity, Commandant, U.S. Coast Guard, U.S. COAST GUARD (1:10-cv-01079-RMU), Defendants: Luther L. Hajek, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Denver, CO.

For CAPE WIND ASSOCIATES, LLC (1:10-cv-01079-RMU), Intervenor Defendant: Geraldine E. Edens, LEAD ATTORNEY, BAKER HOSTETLER, LLP, Washington, DC; Daniel G. Jarcho, Elisabeth L. Shu, Frederick Randolph Anderson, MCKENNA LONG & ALDRIDGE, LLP, Washington, DC.

CHARLES LAMAR FLANNERY (1:10-cv-01238-UNA), Plaintiff, Pro se, BEAUMONT, TX.

OPINION

REGGIE B. WALTON, United States District Judge.

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MEMORANDUM OPINION

This consolidated case comprises four sets of interrelated claims concerning several administrative decisions made by federal agencies approving the construction of various aspects of an offshore wind energy project in Nantucket Sound, which is the first project of its kind in the United States. First, the Public Employees for

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Environmental Responsibility (" PEER" ), the Cetacean Society International, the Lower Laguna Madre Foundation, Californians for Renewable Energy, Three Bays Preservation, the Alliance to Protect Nantucket Sound, and several individuals [2] (collectively, the " PEER plaintiffs" ) allege that defendants Tommy Beaudreau, the Director of the United States Bureau of Ocean Energy Management (" BOEM" ); [3] Sally Jewell, the Secretary of the United States Department of the Interior; Daniel Ashe, the Director of the United States Fish and Wildlife Service (" FWS" ); Penny Pritzker, the Secretary of the United States Department of Commerce; Eileen Sobeck, the Assistant Administrator of the National Marine Fisheries Service (" NMFS" ); and Lieutenant General Thomas P. Bostick, the United States Army Chief of Engineers and Commanding General of the United States Army Corps of Engineers (" Corps of Engineers" or " Corps" ) have violated the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 (2006); the Endangered Species Act (" ESA" ), 16 U.S.C. § § 1531-1544 (2006), the Migratory Bird Treaty Act, 16 U.S.C. § 703 (2006); and the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321-4370h (2006). Second Amended Complaint for Declaratory and Injunctive Relief, ECF No. 47, (" PEER Compl." ) ¶ ¶ 1, 97-111. Second, the Town of Barnstable, Massachusetts, alleges that Secretary Jewell; the United States Department of the Interior; the BOEM; Director Beaudreau; Admiral Robert J. Papp, Jr., the Commandant of the United States Coast Guard; the United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers have violated the APA; the Outer Continental Shelf Lands Act (" Shelf Lands Act" ), as amended, 43 U.S.C. § § 1331-1356a (2012); the NEPA; the Coast Guard and Maritime Transportation Act of 2006, Pub. L. No. 109-241, 120 Stat. 516; the Clean Water Act, 33 U.S.C. § 1344 (2006); and the Rivers and Harbors Act, 33 U.S.C. § 403 (2006). First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 68 (" Barnstable Compl." ) ¶ ¶ 1, 175-225. Third, the Alliance to Protect Nantucket Sound and several individuals [4] (collectively, the " Alliance plaintiffs" ) allege that Secretary Jewell; the United States Department of the Interior; Director Beaudreau; the BOEM;

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Admiral Papp; the United States Coast Guard; Lieutenant General Bostick; and the Corps of Engineers violated the APA; the NEPA; the Energy Policy Act of 2005, Pub. L. No. 109-58, § 388(a), 119 Stat. 594, 744-46 (codified at 43 U.S.C. § 1337(p) (2006)) (amending the Shelf Lands Act); the Coast Guard and Maritime Transportation Act of 2006; the National Historic Preservation Act (" Preservation Act" ), 16 U.S.C. § 470f (2006); the Clean Water Act; and the Rivers and Harbors Act. First Amended Complaint for Declaratory and Injunctive Relief, ECF No. 69 (" Alliance Compl." ) ¶ ¶ 1, 151-93. Finally, the Wampanoag Tribe of Gay Head (Aquinnah) alleges that Director Beaudreau; Secretary Jewell; and the BOEM [5] violated the Preservation Act; the NEPA; and the APA. Complaint for Declaratory and Injunctive Relief, 11-cv-1238, ECF No. 1 (" Wampanoag Compl." ) ¶ ¶ 1, 127-43.

Currently before the Court are three sets of cross-motions for summary judgment, as well as the Plaintiffs' Rule 56(e) Motion for Discovery Necessary to Explain Defendants' Citation to Documents Withheld as " Deliberative" and Other Extra-Record Assertions or, in the Alternative, to Strike, ECF No. 316 (" Pls.' 56(e) Mot." ). Upon careful consideration of the parties' submissions [6] and the several voluminous administrative records in this case, the Court grants partial summary judgment to each party as outlined below, and

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the Court further denies the plaintiffs' Rule 56(e) motion for additional discovery or, in the alternative, to strike.

I. BACKGROUND

An initial overview of several statutes is necessary to provide context for the plaintiffs' claims in this litigation.

A. Statutory Background

1. The ESA

The ESA is " the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

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Congress designed the ESA " to save from extinction species that the Secretary of the Interior designates as endangered or threatened." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 690, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). With the exception of certain insects, the ESA defines an " endangered species" as " any species which is in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A " threatened species" is defined as " any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The ESA generally prohibits the taking of an endangered or threatened species, id. § 1538(a)(1)(B)-(C), and the term " take" is defined as " to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct," id. § 1532(19). However, the Secretary of the Interior or the Secretary of Commerce " may permit," under certain circumstances, " any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. § 1539(a)(1)(B).

The Secretary of the Interior and the Secretary of Commerce have delegated the authority to administer the ESA to the FWS and the NMFS. 50 C.F.R. § 402.01(b). Section 7(a)(2) of the ESA mandates that

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

16 U.S.C. § 1536(a)(2). In carrying out their duties under § 7, agencies " shall use the best scientific and commercial data available." Id.

An agency action " jeopardize[s] the continued existence" of a species where the action " reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02. Accordingly, " [e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species," and " [i]f such a determination is made, formal consultation" with the FWS and/or the NMFS is required. Id. § 402.14(a). The formal consultation process requires the FWS and/or the NMFS to review the proposed agency action and prepare a " biological opinion" that includes " [a] detailed discussion of the effects of the action on listed species," and also render an " opinion on whether the action is likely to jeopardize the continued existence of a listed species." Id. § § 402.14(h)(2)-(3). Where the biological opinion concludes that an agency action may result in the incidental taking of a listed species, the FWS and/or NMFS must " provide with the biological opinion a statement concerning incidental take that" specifies both " the amount or extent[] of such incidental taking on the species," as well as " terms and conditions . . . that must be complied with by the Federal agency or any applicant to implement" certain specified " reasonable and prudent measures" designed to minimize the impact of the incidental taking. Id. § § 402.14(i)(1)(i)-(ii), (iv); see also id. § 402.14(g)(7). Any such " [r]easonable and prudent measures, along with the terms and conditions that implement them, cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes." Id. § 402.14(i)(2).

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2. The Migratory Bird Treaty Act

The Migratory Bird Treaty Act, unless otherwise " permitted by regulations," makes it " unlawful at any time, by any means or in any manner, to . . . take [7] . . . kill, [or] attempt to take . . . or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . included in" certain bilateral treaties [8] adopted for the protection of migratory birds. 16 U.S.C. § 703(a). Violations of the Act can result in criminal sanctions. See id. § § 706-707. However, " the Secretary of the Interior is authorized," upon consideration of certain factors, " to determine when, to what extent, if at all, and by what means . . . to allow . . . [the] taking . . . [or] killing" of protected migratory birds. Id. § 704(a); see also 50 C.F.R. § 21.11 (addressing the requirement for permits to, among other things, take or kill migratory birds). The FWS, which implements and enforces the Migratory Bird Treaty Act on behalf of the Secretary of the Interior, 50 C.F.R. § 10.1, maintains a list of protected migratory birds as outlined in the Act's implementing regulations, id. § 10.13.

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

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

77 Fed. Reg. 60,381, 60,382 (Oct. 3, 2012); see also Exec. Order No. 13,186, 66 Fed. Reg. 3853 (Jan. 10, 2001), reprinted in 16 U.S.C. § 701 app.

3. The NEPA

Under the NEPA, federal agencies must, " 'to the fullest extent possible[,]' . . . prepare an environmental impact statement (EIS) for 'every . . . major Federal actio[n] significantly affecting the quality of the human environment.'" [9] Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 15-16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (quoting 42 U.S.C. § 4332(2)(C)) (alterations in original). " An agency is not required to prepare a full EIS if it determines--based on a shorter environmental assessment (EA)--that the proposed action will not have a significant impact on the environment." Id. at 16 (citing 40 C.F.R. § § 1508.9(a), 1508.13). The NEPA established the Council on Environmental

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Quality, see 42 U.S.C. § 4342, which has the " 'authority to issue regulations interpreting'" the Act, New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 476, 401 U.S. App. D.C. 140 (D.C. Cir. 2012) (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)); see generally 40 C.F.R. pts. 1500-1508 (regulations interpreting the NEPA).

4. The Preservation Act

Congress enacted the Preservation Act in 1966, finding that the preservation of the nation's " heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans." 16 U.S.C. § 470(b)(4). Under the Preservation Act, Congress authorized the Secretary of the Interior to create and " maintain a National Register of Historic Places composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture." Id. § 470a(a)(1)(A).

To protect identified historic sites, Section 106 of the Preservation Act provides that a federal agency undertaking action on a historic site or licensing such an undertaking must, prior to the

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

Id. § 470f. The Advisory Council has promulgated regulations that set forth the procedures that federal agencies must follow to comply with Section 106. Id. § 470s. The regulations in turn require that federal agencies engage in " consultation . . . [with] other parties with an interest in the effects of the undertaking on historic properties," 36 C.F.R. § 800.1(a), including " any Indian Tribe . . . that attaches religious and cultural significance to" properties included on the National Register as a result of their " traditional religious and cultural importance to [the] Indian Tribe," 16 U.S.C. § 470a(d)(6); see also 36 C.F.R. § § 800.2(c), 800.3(f)(2).

The consultation process requires federal agencies to: (1) identify the historic properties that might be affected by the undertaking, 36 C.F.R. § 800.4; (2) evaluate the impact of any adverse effects on those properties, id. § 800.5; and (3) " develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on" those properties, id. § 800.6; see also Corridor H Alts., Inc v. Slater, 166 F.3d 368, 370, 334 U.S. App. D.C. 240 (D.C. Cir. 1999). When the required consultation has concluded, the agency and consulting parties may sign a memorandum of agreement that " shall govern the undertaking and all of its parts." See § 800.6(c). The memorandum of agreement also " evidences the agency['s] . . . compliance with [S]ection 106." Id. However, if " [a]fter consulting to resolve adverse effects pursuant to 36 C.F.R. § 800.6(b)(2), the agency . . . may determine that further consultation will not be productive and terminate consultation. Any party that terminates consultation shall notify the other consulting parties and provide them the reasons for terminating in writing." Id. § 800.7(a). Where the agency decides to terminate consultation, the agency " shall request that the [Advisory] Council" provide comments and shall also " notify all consulting parties of the request." Id. § 800.7(a)(1). " The

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head of the agency shall take into account the [Advisory] Council's comments in reaching a final decision on the undertaking." Id. § 800.7(c)(4).

5. The Shelf Lands Act

The Shelf Lands Act accords the United States jurisdiction over the " the outer Continental Shelf," 43 U.S.C. § 1333(a), which is defined as " all submerged lands lying seaward and outside the area of lands beneath navigable waters as defined in section 1301 of this title,[10] and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control." 43 U.S.C. § 1331(a). The Shelf Lands Act provides that the laws of the United States apply not only to the outer Continental Shelf, but also " to the subsoil and seabed of the outer Continental Shelf and to all . . . installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon." Id. § 1333(a). As amended by the Energy Policy Act of 2005, Pub. L. No. 109-58, 110 Stat. 594, the Shelf Lands Act provides that " [t]he Secretary [of the Interior], in consultation with the Secretary of the Department in which the Coast Guard is operating and other relevant departments and agencies of the Federal Government, may grant a lease, easement, or right-of-way on the outer Continental Shelf for activities" that, among other things, " produce or support production, transportation, or transmission of energy from sources other than oil and gas," including renewable energy sources. Id. § 1337(p)(1)(C); see 30 C.F.R. § § 585.100-.101. " The Secretary of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to regulate activities under" the Shelf Lands Act concerning such activities. 30 C.F.R. § 585.100. See generally id. § § 585.100-.1019 (regulations concerning leases, easements, and rights-of-way for non-gas and non-oil related activities on the outer Continental Shelf).

6. The Coast Guard and Maritime Transportation Act of 2006

The Coast Guard Maritime Transportation Act of 2006, which was enacted on July 11, 2006, imposes specific duties on the Commandant of the Coast Guard with respect to offshore wind energy projects in the Nantucket Sound. See Pub. L. No. 109-241, § 414, 120 Stat. 516, 540. Section 414 of the Act reads in its entirety:

Sec. 414. Navigational Safety of Certain Facilities.
(a) Consideration of Alternatives.--In reviewing a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)), not later than 60 days before the date established by the Secretary of the Interior for publication of a draft environmental impact statement, the Commandant of the Coast Guard shall specify the reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety with respect to the proposed lease, easement, or right-of-way and each alternative to the proposed lease, easement, or right-of-way considered by the Secretary.
(b) Inclusion of Necessary Terms and Conditions.--In granting a lease, easement, or right-of-way for an offshore wind energy facility in Nantucket Sound under section 8(p) of the Outer Continental Shelf Lands Act (43 U.S.C. 1337(p)),

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the Secretary shall incorporate in the lease, easement, or right-of-way reasonable terms and conditions the Commandant determines to be necessary to provide for navigational safety.

Id. at 540.

B. Factual Background[11]

At the center of this consolidated civil action is the Nantucket Sound (the " Sound" ), a body of water located off the coast of Massachusetts. See CW65034. The Sound serves many functions, including the home to various endangered species, a commercial and recreational waterway, and a source of cultural and religious identity. See CW65356, CW111969-78. Intervenor-defendant Cape Wind, with the approval of the federal defendants, also seeks to make the Sound the location of the nation's first offshore wind energy project. See CW201584.

1. The Cape Wind Project

The Cape Wind project has been described as " the first of its kind in the United States and is one of the largest offshore wind projects in the world." CW201584. Cape Wind " began preliminary work on siting and designing a wind energy project in 2000," NMFS1413, and proposed an offshore wind energy park, to be located on the outer Continental Shelf on Horseshoe Shoal [12] in the Sound, CW65037. As described in the Federal Register,

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

71 Fed. Reg. 30,693, 30,693 (May 30, 2006); see also, e.g., NMFS1415-22 (providing a more detailed description of the Cape Wind's project proposal). Prior to its construction, and as discussed below, the Cape Wind project was and is subject to several regulatory and administrative procedures and approvals.

2. The Regulatory Approval Process

" In November 2001, [Cape Wind] filed a permit application with the [Corps of Engineers], New England District, under section 10 of the Rivers and Harbors Act of

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1899 . . . ." 71 Fed. Reg. at 30,693. The Corps issued a draft EIS in 2004. See CW142751. Upon the passage of the Energy Policy Act of 2005, the BOEM took over " as a lead agency for coordinating the permitting process with other Federal agencies." 71 Fed. Reg. at 30,693; CW111956. As outlined below, the BOEM subsequently initiated required consultation with various agencies.

a. Formal Consultation Under Section 7 of the ESA

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

The BOEM consulted informally with the FWS from November 17, 2005, until May 19, 2008, when the BOEM requested initiation of formal consultation. See FWS92-96. The FWS issued its biological opinion on November 21, 2008. See FWS1. The biological opinion " only applies to the roseate tern and piping plover," two types of migratory birds, " as listed species under the ESA." FWS3. The FWS reached the following conclusion:

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

FWS73. The FWS included with its biological opinion an incidental take statement authorizing the taking of " four to five roseate terns per year (80-100 terns over the 20-year life of the project)" and " a maximum of 10 piping plovers . . . over the life of the [project]." FWS75. With respect to the taking of piping plovers, the FWS added:

Because the formulation of mortality estimates is very complex, new empirical information demonstrating one or more of the following circumstances will constitute new evidence that estimated take of piping plovers has been exceed:
1. Annual flights across the project area exceed the total number of pairs breeding in and north of the action area. This is equivalent to approximately 18% of migration flights by adults and young of the year (pairs x 5.5).
2. More than 20% of flights occur at rotor height.
3. Avoidance rates < 0.95.

Id. The FWS also " estimate[d] that implementation of the Bird Island restoration project [13] will offset any potential roseate tern mortality that may occur from the Cape Wind Project." Id.

The incidental take statement included terms and conditions necessary to implement reasonable and prudent measures pursuant to the ESA. See FWS75-78. Among these measures was a discussion of an operational adjustment that the FWS

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had considered but ultimately decided against:

The [FWS] . . . considered as a reasonable and prudent measure[] an operational adjustment to the wind facility that would require the temporary and seasonal shut down of the [wind turbine generators] through the feathering of the rotors. Feather of the rotors causes them to face the wind and stop spinning, and would reduce the risk of collision by roseate terns and, to a limited extent, migrating piping plovers transiting the Horseshoe Shoal project area. Although the [FWS] considered that result in this " operational adjustment" would be based on weather and day light parameters that reduce visibility, and would be limited in time to seasons when plovers and peak numbers of roseate terns are expected to be present (a few weeks in early to mid-May and a few weeks in late August to mid-September), it was determined by [the BOEM] and [Cape Wind] . . . to not be reasonable and prudent based on the following:
The operational adjustment (shut down of the turbine rotors to a neutral position) is not reasonable because it does not meet the [reasonable and prudent measure] regulatory definition as a " reasonable measure" as it modifies the scope of the project in a manner that is adverse to the project's stated purpose and need, that is to make a substantial contribution to enhancing the region's electrical reliability and achieving the renewable energy requirements under the Massachusetts and regional renewable portfolio standards. [The BOEM] considers that this may involve more than a " minor change" (50 C.F.R. § 402.14(i)(2)[)].
[The BOEM] has also determined that the [reasonable and prudent measure] is not reasonable because the uncertainty regarding the project's ability to generate electricity during the two time frames (late April to mid-May and late August to mid-September) reduces the project's predicted potential electrical output in a significant enough way to have a deleterious effect on anticipated revenues, financing and power purchasing agreements.
Furthermore, [the BOEM] indicates that the proposed timeframes for the operational adjustment, although limited by season, visibility and time of day, constitute peak period hours, when the energy supplied to the [Independent System Operator of] New England (the regional transmission organization) has greater market value. Therefore, the [reasonable and prudent measure] may not be prudent because economic cost makes this measure not feasible for project proponents to implement.

FWS76-77 (citations omitted).

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

The " BOEM and [the] NMFS began discussing consultation requirements in January 2006." NFMS1414. The " NMFS provided technical assistance to [the] BOEM as they drafted a new [draft EIS][14] and draft [biological assessment]." Id. The " BOEM provide[d] NMFS with a final [biological assessment] and request for formal consultation in a letter dated May 19, 2008," and " [c]onsultation was initiated on May 22, 2008." Id. The NMFS issued its biological opinion on November 18, 2008 (" 2008 biological opinion" ), which

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concluded that the proposed action was likely to adversely affect but was not likely to jeopardize the continued existence of loggerhead, Kemp's ridley, leatherback or green sea turtles. Additionally, [the] NMFS concluded that the proposed action was not likely to adversely affect right, humpback or fin whale species. Because no critical habitat is designated in the action area, none will be affected by the proposed action. The [biological] [o]pinion included an Incidental Take Statement exempting the incidental take by acoustic ...

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