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Enscochallenge

Enscochallenge

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Published by: editorial.online on Mar 05, 2011
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1
IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF LOUISIANA
ENSCO OFFSHORE COMPANY, et al.,Plaintiffs,v.KENNETH LEE “KEN” SALAZAR,SECRETARY OF THE INTERIOR, et al.,Defendants.
 CIVIL ACTION No. 10-1941(F)(2)SECTION FJUDGE FELDMANMAGISTRATE 2MAGISTRATE WILKINSON
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR STAY PENDINGAPPEAL OR, IN THE ALTERNATIVE, FOR A TEMPORARY STAY PENDINGRESOLUTION OF A STAY MOTION IN THE COURT OF APPEALS
Defendants Ken Salazar, the U.S. Department of the Interior, Michael R. Bromwich, andthe Bureau of Ocean Energy Management, Regulation and Enforcement (“BOEMRE”)(collectively “Defendants”), hereby request that the Court, pursuant to Federal Rule of CivilProcedure 62(c), stay its Orders of February 17 and March 1, 2011 (“Orders”) (Dkt. # 229, 250),pending Defendants’ appeal to the United States Court of Appeals for the Fifth Circuit. In thealternative, Defendants request that the Court issue a temporary stay of those same Orders untilresolution by the Court of Appeals of an emergency motion by the United States for a staypending appeal pursuant to Federal Rule of Appellate Procedure 8(a). 
I.
 
INTRODUCTION
As this Court is aware, the Secretary of the Interior directed BOEMRE on May 28, 2010, andagain on July 12, 2010, to issue a temporary suspension of certain pending, current, and approved
Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 1 of 12
 
2offshore drilling operations involving deepwater oil and gas wells. See PubIV000049;
1
 PubIV000081-109. This temporary suspension was intended,
inter alia
, to afford BOEMRE the timeit needed after the Deepwater Horizon incident to issue new safety and environmental protectionrules. PubIV000100. On October 12, 2010, the Secretary indicated that a suspension was no longerneeded because the issuance of new regulatory requirements, the killing of the Macondo well, andthe development of containment standards and technology had improved drilling safety, blowoutcontainment, and spill response capabilities. PubIV000196-200. The Secretary made clear,however, that all operators would be required to comply with applicable regulations and notices tolessees prior to obtaining a drilling permit. PubIV000198.Plaintiffs, who would prefer the immediate approval of all drilling permits, alleged pursuantto 5 U.S.C. § 706(1) that BOEMRE had unreasonably delayed a final decision on nine applicationsfor permits to drill. Plaintiffs sought, and this Court granted, an injunction compelling BOEMRE toissue a decision on five of those applicationspertaining to Nexen Petroleum U.S.A., Inc.(“Nexen”) and Cobalt International Energy, L.P. (“Cobalt”)no later than March 19, 2011 (Dkt. #229). Following that decision, Plaintiffs moved to supplement the Court’s injunction with twoadditional applications pertaining to ATP Oil & Gas Corporation. The Court also granted thatmotion, compelling BOEMRE to issue a decision on those two applications no later than March 31,2011 (Dkt. # 250). On March 4, 2011, Defendants noticed an appeal of those orders to the UnitedStates Court of Appeals for the Fifth Circuit.Defendants now respectfully request that the Court stay its Orders pending Defendants’appeal. The Court’s finding of unreasonable delay, and decision to compel action on theapplications, were made in error. And compliance with the Court’s Orders will greatly harm
1
This citation format references the unique page identifiers in the Department of the Interior’sAdministrative Record for Count IV of Plaintiffs’ Second Amended Complaint.
Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 2 of 12
 
3BOEMRE and the efficient development of oil and gas resources on the Outer Continental Shelf,as well as potentially harm the near-term interests of the operators who submitted the subjectapplications. The Orders only work to disrupt BOEMRE’s more efficient, iterative practice of communicating application inadequacies to the applicant so that they can be corrected.BOEMRE instead now may be required to deny the applications outright, which in turn wouldfrustrate Congress’ stated preference that the Outer Continental Shelf be made available for“expeditious and orderly development subject to environmental safeguards.” 43 U.S.C. §1332(3). The Court should therefore stay its injunction pending appellate review.In the alternative, if the Court decides against staying its Order pending appeal,Defendants respectfully request that the Court issue a temporary stay until resolution by theCourt of Appeals of an emergency motion by the United States for a stay pending appeal of theDistrict Court’s Orders.
II.
 
FACTUAL BACKGROUND
The Court is familiar with the factual background of this case, which is described inDefendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction, filed on December 22,2010 (Dkt. #161), Defendants’ Supplemental Brief, filed on January 20, 2011 (Dkt. #191), andDefendants’ Response to Plaintiffs’ Motion to Supplement Preliminary Injunction, filed onFebruary 28, 2011 (Dkt. # 247). Those facts are incorporated herein by reference.
 III.
 
PROCEDURAL BACKGROUND
On November 30, 2010, Plaintiffs sought a preliminary injunction on Count IV of theirthen-First Amended Complaint. Dkt. # 139. Count IV initially sought to compel programmatic,Gulf-wide action on applications for permits to drill for oil and gas in the Gulf in Mexico. OnDecember 22, 2010, however, Plaintiffs moved for leave to file a Second Amended Complaint.
Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 3 of 12

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