In light of the 5th Circuit’s order, holding the sale on 11/8 would have been messy for all sides in the Rice’s whale dispute. Seemingly, the only option for holding the sale prior to the Court’s decision on the injunction would have been the following:
Allow, but not accept, bids on the tracts in the Rice’s whale expanded area.
Add the Rice’s whale stipulations while providing notice that they might subsequently be removed.
Because the RIce’s whale stipulations would affect the value of all deepwater leases, bidders would be rolling the dice on the outcome of the case.
Also, absent legislative action, there will be no lease sale in 2024. This adds to the importance of Sale 261, and making sure the terms are understood.
I take it that since the 5th Circuit stayed both the 9/21 and 9/25 orders, the mandate to hold the sale by 11/8 is also stayed. Ergo, it is assumed that the sale will be delayed pending a decision on the merits of the injunction. Oral arguments are scheduled for 11/13.
If the 5th Circuit’s decision facilitates timely resolution of the Rice’s whale deletions and stipulations, delaying the sale is probably the best outcome. Otherwise, the level of uncertainty would be unacceptable for many bidders.
Not a lawyer, but I take this to mean that the Judge’s injunction has been suspended and DOI may delete acreage and include the Rice’s whale stipulations in Sale 261 leases. The sale will be held on Nov. 8.
ORDER: IT IS ORDERED that the preliminary injunction entered by the Memorandum Order of September 21, 2023, as amended by the motions panel’s order of September 25, 2023, is STAYED pending the merits panel’s decision on appeal. LYLE W. CAYCE, CLERK United States Court of Appeals
Is it accurate to describe BOEM’s agreement with the Sierra Club as a “sue and settle” arrangement? a. If so, does BOEM intend to continue making decisions through “sue and settle” tactics? b. How can the Committee attain confidence that the BOEM is considering the interest of small businesses in its decision-making when its decisions are made behind closed doors with special interest groups?
Last week, the 5th Circuit heard arguments on the appeal by Earthjustice et al of Judge Cain’s decision to remove the Rice’s whale restrictions from Sale 261 leases. The sale is to be held on Nov. 8 per the 5th Circuit’s order.
“The proposed critical habitat has been deemed, by NMFS, to have the essential physical and biological features needed for the Rice’s whale to feed, breed, and reproduce. However, direct evidence for what oceanographic features within the 100-400 m isobath band identified by NMFS are required to sustain the Rice’s whale is lacking, and the extent of those truly important features elsewhere in the GOMx is uncertain and may not reach into the central or northwestern GOMx as predicted by the habitat based density model (Garrison et al. 2023). Even though there is evidence to support the possible occurrence of Rice’s whale near the FGBNMS in the northwestern GOMx, there are no data that show this area is being used to support important life history functions such as breeding, feeding, or migrating. Additionally, the sightings and acoustic detections that have been recorded there are much less frequent than those recorded for Rice’s whale in the core habitat in the northeastern GOMx. Based on the limited data available on the use and occurrence of Rice’s whale in the central and northwestern GOMx (one acoustic study (Soldevilla et al. 2022b), one confirmed sighting (NMFS 2018a) and a few unconfirmed sightings (Rosel et al. 2021)), there is insufficient scientific evidence to determine that essential features for Rice’s whale conservation are indeed present in the central and northwestern GOMx. In fact, data on the life-history requirements of Rice’s whale even in the core habitat are still lacking and need further investigation.“
EIAP’s key findings on the estimated economic impacts from these restrictions are summarized in the table below. Those are very significant costs given the uncertainty of the whale habitat in the central and western GoM.
Separate comments submitted by the Offshore Operators Committee are also quite strong. Their letter is attached.
How does a Coast Guard station casually post an endangered species observation on Facebook before confirming the accuracy of the sighting?
Even if the species identity had been confirmed, is a Facebook post an appropriate means of making such announcements?
Shouldn’t the observation have been reported to NOAA for any further action?
Was the Coast Guard station aware of Lease Sale 261 and the related Rice’s whale litigation?
Did the Coast Guard station understand the potential economic implications of the alleged sighting, not just for offshore oil and gas but for all commercial activities in the GoM?
Why did so many media outlets run with the Facebook post without confirmation from the Coast Guard or NOAA?
Why has only one organization, the Miami Herald, published the corrected information?
Why has there been no public statement from the Coast Guard?
Over the weekend, the Coast Guard station in Venice, LA rather recklessly announced the following on Facebook: “CRITICALLY ENDANGERED SPECIES SIGHTING: Station Venice presents to you……. Rice’s Whale.”The Facebook comment captioned a 16-second video of the whales swimming nearby, reportedly in the Mississippi Canyon area of the Gulf of Mexico. The video was removed on Tuesday. CBS reported on the Facebook post but was unable to obtain confirmation from the Coast Guard.
Given the timing and significance of the Coast Guard announcement relative to Lease Sale 261, this was a massive report. However, we now learn that the whales were incorrectly identified. Both the Coast Guard and NOAA are confirming that the whales were misidentified as Rice’s whales and were actually sperm whales.
CLARIFICATION: This story has been updated to reflect that Coast Guard officials identified the whales spotted in the Gulf of Mexico as sperm whales after previously identifying them as critically endangered Rice’s whales. The National Oceanic and Atmospheric Administration also told McClatchy News in a statement that they are sperm whales.
Assuming the Gulf of Mexico oil and gas lease sale proceeds tomorrow in accordance with Judge Cain’s order, some interesting questions and issues remain:
Will the lingering Rice’s whale issues affect bidding for deepwater leases? Friday’s court order is not a final resolution of those issues, either legally or administratively. While the Rice’s whale stipulation, at the direction of the Federal court, will not be included in the Sale 261 leases, BOEM’s Notice to Lessees and Operators (NTL) includes the same provisions and still stands pending further consultations with NOAA. Although the NTL is a “guidance document” (wink-wink), there are ways of making it stick through the exploration plan approval process. Even without binding requirements, companies might choose to fully comply to minimize legal risks.
When will the next GoM lease sale be held? Will the uncertainty spur or constrain bidding?
The challenged lease term for the expanded Rice’s whale area only arose in a July 2023 district court filing and then appeared in the FNOS for Lease Sale 261 on August 25, 2023—one month before the statutory deadline for the sale. BOEM failed to follow its own procedures by making significant changes to the FNOS, thereby depriving both affected states and the public the opportunity for meaningful review and comment. The procedural error is particularly grave here, because of both the compressed timeline and BOEM’s inexplicable about-face on the scientific record it had previously developed. (p.19)
The challenged provisions inserted into these leases at the eleventh hour, and the acreage withdrawal, are based only on an unexplained change in position by BOEM on a single study a few months after that supplemental EIS. The process followed here looks more like a weaponization of the Endangered Species Act than the collaborative, reasoned approach prescribed by the applicable laws and regulations. (p.22).
According to an affidavit from Shell’s commercial manager, the new restrictions on vessel traffic apply to an area of the northern Gulf that separates Shell’s existing offshore leases from the onshore infrastructure that supports them. Shell Offshore Inc., No. 2:23-cv-1167, at doc. 4, att. 2, ¶¶ 23–27. (p. 23).
Given the shaky justification offered by BOEM, the court cannot find that the challenged provisions are so necessary that withholding them even on a preliminary basis will outweigh the risk of irreparable economic harm shown by plaintiffs. Additionally, “there is generally no public interest in the perpetuation of unlawful agency action.” (p. 26)
For the reasons stated above, the court hereby ORDERS that the Motions for Preliminary Injunction be GRANTED. Accordingly, the government defendants are enjoined from implementing the acreage withdrawal and Stipulation 4(B)(4) as described in the Final Notice of Sale and Record of Decision for Lease Sale 261. Government defendants are ordered to proceed with Lease Sale 261, absent the challenged terms, by September 30, 2023.
Bud's Offshore Energy (BOE) 