Case 2:10-cv JCZ-JCW Document 87 Filed 02/01/12 Page 1 of 3

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1 Case 2:10-cv JCZ-JCW Document 87 Filed 02/01/12 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA NATURAL RESOURCES DEFENSE COUNCIL INC.; CENTER FOR BIOLOGICAL DIVERSITY, INC.; GULF RESTORATION NETWORK, INC.; AND SIERRA CLUB, INC., Plaintiffs, v. KENNETH SALAZAR, Secretary of the Department of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION, AND ENFORCEMENT; MICHAEL R. BROMWICH, Director, Bureau of Ocean Energy Management, Regulation and Enforcement, Defendants. CIVIL ACTION NO. 2:10-cv SECTION A JUDGE JAY C. ZAINEY MAGISTRATE JOSEPH C. WILKINSON JOINT MOTION TO EXTEND STAY OF PROCEEDINGS Pursuant to LR 7.1 and LR 7.9, Plaintiffs (Natural Resources Defense Council, Center for Biological Diversity, Gulf Restoration Network, and Sierra Club and Federal Defendants (Kenneth Salazar, Secretary of the Department of the Interior; the Bureau of Ocean Energy Management ( BOEMRE ; and Michael Bromwich, Director, BOEMRE, and their successors respectfully move the Court to extend the stay of all proceedings in this matter through March 2, 2012, pursuant to the terms set forth in the attached memorandum in support. Respectfully submitted this 1st day of February, /s/ Joel Waltzer by permission JOEL WALTZER (LA # Westbank Expressway, Ste. 13 Harvey, LA Office: ( ; Fax: ( joel@waltzerlaw.com Counsel for Plaintiffs

2 Case 2:10-cv JCZ-JCW Document 87 Filed 02/01/12 Page 2 of 3 IGNACIA S. MORENO Assistant Attorney General /s/ Kevin W. McArdle. KEVIN W. MCARDLE Trial Attorney, DC Bar # United States Department of Justice Environment and Natural Resources Division Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, D.C ( (tel.; ( (fax Kevin.McArdle@usdoj.gov TYLER WELTI Trial Attorney, California Bar No United States Department of Justice Environment and Natural Resources Division Natural Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington D.C (tel.; (fax Tyler.Welti@usdoj.gov JIM LETTEN United States Attorney PETER M. MANSFIELD (28671 Assistant United States Attorney Hale Boggs Federal Building 500 Poydras St., Ste. 210B New Orleans, LA Tele: ( ; Fax: ( Peter.Mansfield@usdoj.gov Attorneys for Federal Defendants 2

3 Case 2:10-cv JCZ-JCW Document 87 Filed 02/01/12 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on February 1, 2011, the above motion was filed with the United States District Court for the Eastern District of Louisiana s electronic filing system for service on all parties: /s/ Kevin W. McArdle. 3

4 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA NATURAL RESOURCES DEFENSE COUNCIL INC.; CENTER FOR BIOLOGICAL DIVERSITY, INC.; GULF RESTORATION NETWORK, INC.; AND SIERRA CLUB, INC., Plaintiffs, v. KENNETH SALAZAR, Secretary of the Department of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION, AND ENFORCEMENT; MICHAEL R. BROMWICH, Director, Bureau of Ocean Energy Management, Regulation and Enforcement, Defendants. CIVIL ACTION NO. 2:10-cv SECTION A JUDGE JAY C. ZAINEY MAGISTRATE JOSEPH C. WILKINSON MEMORANDUM IN SUPPORT OF JOINT MOTION TO EXTEND STAY OF PROCEEDINGS Pursuant to LR 7.1 and LR 7.9, Plaintiffs (Natural Resources Defense Council, Center for Biological Diversity, Gulf Restoration Network, and Sierra Club and Federal Defendants (named parties Kenneth Salazar, Secretary of the Department of the Interior; the Bureau of Ocean Energy Management, Regulation, and Enforcement ( BOEMRE ; and Michael Bromwich, Director, BOEMRE, and their successors respectfully submit this Memorandum in support of their motion to stay proceedings in this matter until March 2, 2012, pursuant to the terms set forth below. Pursuant to the Court s Order dated December 5, 2011, Plaintiffs and Federal Defendants joint stay will expire on February 2, 2012, and Federal Defendants response to the Complaint is due 14 days later. Dkts. 85, 83 (referencing Dkt This is the ninth stay, including stay extensions, requested by any party. Counsel for the Intervenor-

5 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 2 of 7 Defendants have indicated that Intervenor-Defendants do not oppose this motion. The parties appreciate the Court's patience in continuing to extend the stay to allow them to conclude settlement negotiations. Plaintiffs and Federal Defendants seek an additional stay in order to conclude settlement discussions. Since the Court s November 2 Order, all parties, including Defendant-Intervenors, have participated in additional discussions and exchanged information regarding the possibility of settlement. Representatives of all parties will attend a settlement meeting on February 6, 2012, with the objective of reaching an overall agreement in principle to settle the lawsuit, If the parties are able to reach a tentative agreement in principle, they will begin formalizing their agreement for internal review and approval. Accordingly, the parties wish to extend the stay for an additional 29 days pursuant to the same terms (reproduced below of the Court s March 16, 2011 and subsequent Orders granting their joint motions to stay proceedings, Dkts. 74, 76, 78, 81, 83, 85, save for a change in the seismic permits referenced in paragraph 3 the parties' prior joint motions. If the parties are unable to resolve the remaining issues and reach a tentative agreement in principle, they will promptly move the Court to lift the stay pursuant to paragraph 2 below. The terms set forth below, which would apply solely during the period of any stay and are identical to those applicable under the prior stay extensions (save for the change referenced above, are intended to preserve certain interests of Plaintiffs and Federal Defendants during the stay and ensure that the litigation proceeds expeditiously should the stay expire or be lifted without a settlement: 1. If, at any point during the stay, BOEMRE decides to approve any permit application authorizing deep-penetration seismic surveys within any of the four Areas of Concern identified in Federal Defendants May 24, 2011 confidential settlement proposal, 2

6 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 3 of 7 which correspond to the areas referenced in the Court s March 16, 2011 Order, BOEMRE will provide Plaintiffs with at least seven days advance notice prior to issuing the permit. At the time such notice is provided, BOEMRE will also provide Plaintiffs with copies of the relevant permit application and associated National Environmental Policy Act ( NEPA analysis. BOEMRE will further notify Plaintiffs when the relevant permit has been issued and will provide Plaintiffs with a copy of the issued permit at that time. Should Plaintiffs determine that continuation of the stay is no longer warranted in light of the issuance of such a permit, Federal Defendants will join Plaintiffs in a stipulation or motion to immediately lift the stay. Federal Defendants will have 14 days from the date the stay is lifted or expires in which to respond to the existing complaint (subject to the provisions of Fed. R. Civ. P. 15(a(3 in the event that Plaintiffs file an amended complaint pursuant to paragraph 3 below. 2. If at any point Plaintiffs determine that settlement discussions are no longer fruitful and the stay is no longer merited, Federal Defendants will join Plaintiffs in a stipulation or motion to immediately lift the stay. Federal Defendants will have 14 days from the date the stay is lifted in which to respond to the existing complaint (subject to the provisions of Fed. R. Civ. P. 15(a(3 in the event Plaintiffs file an amended complaint pursuant to paragraph 3 below. 3. If the stay expires or is lifted, Plaintiffs intend to file an amended complaint challenging one or more of the following actions (collectively referred to herein as the Actions : BOEMRE s 2004 Programmatic Environmental Assessment and Finding of No Significant Impact ( FONSI challenged in the existing Complaint; the 2007 Biological Opinion on the Five-Year Outer Continental Shelf Oil and Gas Leasing Program ( in the Central and Western Planning Areas of the Gulf of Mexico issued by the National Marine Fisheries Service; the Supplemental Environmental Assessments ( SEAs and FONSIs for 3

7 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 4 of 7 permit numbers M10-001, T11-001, L10-048, L11-003, L11-006, L11-007, L11-012, and L11-013; and any Marine Mammal Protection Act authorizations and Endangered Species Act consultations associated with the foregoing permits. Plaintiffs amended complaint may also challenge other actions not enumerated here. To the extent Federal Defendants written consent is required pursuant to Fed. R. Civ. P. 15(a(2, and Federal Defendants have yet to answer or otherwise respond to the existing complaint, Federal Defendants consent to the filing, after the stay expires or is lifted pursuant to paragraph 1 or 2 above, of an amended complaint challenging one or more of the Actions. Federal Defendants do not hereby waive any defenses Federal Defendants may have to any claims or allegations contained in any such amended complaint. Federal Defendants do not hereby consent to the filing of an amended complaint challenging other actions not falling within the scope of the term Actions, as defined above. 4. Should Plaintiffs file, after the stay expires or is lifted pursuant to paragraph 1 or 2 above, an amended complaint challenging one or more of the Actions, Federal Defendants will file or lodge the certified administrative records, to the extent that they exist, for the challenged Actions within 30 days after the amended complaint is filed. Federal Defendants do not hereby agree to file the certified administrative records for any other actions that may be challenged in any amended complaint within 30 days after the amended complaint is filed. 5. For any application for a permit authorizing geological or geophysical seismic activities in the Gulf of Mexico received or approved by BOEMRE on or after the date of this motion, BOEMRE will make the permit application and any associated NEPA analysis and permit available on BOEMRE s internet website. Should BOEMRE fail to comply with the notice provisions set forth above in paragraphs one and five, NRDC s only remedy would be to lift the stay. 4

8 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 5 of 7 Extending the stay to allow for continued settlement discussions subject to the terms set forth above could obviate the need for time-consuming and costly litigation. Moreover, the length of the proposed stay extension is reasonable given the complexity of the issues and the number of parties involved in settlement discussions. Accordingly, continuation of the stay on the terms set forth above would serve the interests of justice, the parties, and the Court. For the foregoing reasons, Plaintiffs and Federal Defendants joint motion to extend the stay until March 2, 2012, on the terms set forth above, should be granted. A proposed order granting the motion is attached for the Court s convenience. Respectfully submitted this 1st day of February, /s/ Joel Waltzer by permission JOEL WALTZER (LA # Westbank Expressway, Ste. 13 Harvey, LA Office: ( ; Fax: ( joel@waltzerlaw.com Counsel for Plaintiffs IGNACIA S. MORENO Assistant Attorney General /s/ Kevin W. McArlde. KEVIN W. MCARDLE Trial Attorney, DC Bar # United States Department of Justice Environment and Natural Resources Division Wildlife and Marine Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington, D.C ( (tel.; ( (fax Kevin.McArdle@usdoj.gov TYLER WELTI Trial Attorney, California Bar No United States Department of Justice Environment and Natural Resources Division 5

9 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 6 of 7 Natural Resources Section Benjamin Franklin Station, P.O. Box 7369 Washington D.C (tel.; (fax Tyler.Welti@usdoj.gov JIM LETTEN United States Attorney PETER M. MANSFIELD (28671 Assistant United States Attorney Hale Boggs Federal Building 500 Poydras St., Ste. 210B New Orleans, LA Tele: ( ; Fax: ( Peter.Mansfield@usdoj.gov Attorneys for Federal Defendants 6

10 Case 2:10-cv JCZ-JCW Document 87-1 Filed 02/01/12 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on February 1, 2012, the above motion was filed with the United States District Court for the Eastern District of Louisiana s electronic filing system for service on all parties: /s/ Kevin W. McArdle. 7

11 Case 2:10-cv JCZ-JCW Document 87-2 Filed 02/01/12 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA NATURAL RESOURCES DEFENSE COUNCIL INC.; CENTER FOR BIOLOGICAL DIVERSITY, INC.; GULF RESTORATION NETWORK, INC.; AND SIERRA CLUB, INC., Plaintiffs, v. KENNETH SALAZAR, Secretary of the Department of the Interior; BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION, AND ENFORCEMENT; MICHAEL R. BROMWICH, Director, Bureau of Ocean Energy Management, Regulation and Enforcement, Defendants. CIVIL ACTION NO. 2:10-cv SECTION A JUDGE JAY C. ZAINEY MAGISTRATE JOSEPH C. WILKINSON ORDER GRANTING JOINT MOTION TO EXTEND STAY OF PROCEEDINGS This matter is before the Court on the Joint Motion to Stay Proceedings ( Joint Motion filed by the Plaintiffs and Federal Defendants. Plaintiffs and Federal Defendants request a stay extension through March 2, 2012, subject to the five terms specified in the Joint Motion. For good cause shown, it is hereby ORDERED that the Joint Motion is GRANTED. It is further ORDERED that all proceedings in this matter are STAYED until and including March 2, 2012, subject to the five terms specified in the Joint Motion. Dated:, 2012 Judge of the United States District Court