Case 2:10-cv-01941-MLCF-JCW Document 263 Filed 03/04/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

ENSCO OFFSHORE COMPANY, et al.,

Plaintiffs,

v.

KENNETH LEE "KEN" SALAZAR, et al.,

Defendants.

CIVIL ACTION No. lO-1941(F)(2) SECTIONF

JUDGE FELDMAN

MAGISTRA TE 2

MAGISTRA TE WILKINSON

DEFENDANTS' NOTICE OF APPEAL

Notice is hereby given this 4th day of March, 2011, that Defendants, Kenneth Lee "Ken"

Salazar; the United States Department of the Interior; Michael R. Bromwich; and the Bureau of

Ocean Energy Management, Regulation and Enforcement, hereby appeal to the United States

Court of Appeals for the Fifth Circuit from the Orders of this Court granting Plaintiffs' Motion

for Preliminary Injunction, and supplementation thereof, entered in this action on February 17,

2011, and March 1,2011. [Docket Document Nos. 229 and 250].

Dated: March 4th, 2011.

IGNACIA S. MORENO Assistant Attorney General

Environment and Natural Resources Division

lsi Brian Collins

GUILLERMO A. MONTERO (T.A.) BRIAN M. COLLINS

KRISTOFOR R. SWANSON

U.S. Department of Justice

Environment and Natural Resources Division

Case 2:10-cv-01941-MLCF-JCW Document 263 Filed 03/04/11 Page 2 of 2

Natural Resources Section PO Box 663

Washington, DC 20016 Tel: (202)305-0443

Fax: (202)305-0267

PETER MANSFIELD

Assistant United States Attorney Eastern District of Louisiana Hale Boggs Federal Building 500 Poydras Street, Suite B-21 0 New Orleans, Louisiana 70130 Tel: (504)680-3000

ATTORNEYS FOR FEDERAL DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that on March 4th, 2011, I caused a copy of the foregoing to be served

through the Court's CMlECF System to all parties.

IslBrian Collins Brian Collins

Attorney for Defendants

Case 2: 1 0-cv-01941-MLCF-JCW Document 264 Filed 03/04/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

ENSCO OFFSHORE COMPANY, et al.,

Plaintiffs,

v.

SALAZAR, et al.,

Defendants.

CIVIL ACTION No. 2:10-cv-

01941(F)(2)

SECTIONF

JUDGE FELDMAN

MAGISTRATE 2

MAGISTRATE WILKINSON

DEFENDANTS' MOTION FOR STAY PENDING APPEAL OR, IN THE ALTERNATIVE, FOR A TEMPORARY STAY PENDING RESOLUTION OF A STAY MOTION IN THE COURT OF APPEALS

Defendants Ken Salazar, the U.S. Department of the Interior, Michael R. Bromwich, and

the Bureau of Ocean Energy Management, Regulation and Enforcement ("BOEMRE")

(collectively "Defendants"), hereby move the Court, pursuant to Federal Rule of Civil Procedure

62(c), to stay its Orders of February 17 and March 1,2011 ("Orders") (Dkt. # 229, 250), pending

Defendants' appeal of those Orders to the United States Court of Appeals for the Fifth Circuit.

In the alternative, Defendants request that the Court issue a temporary stay of those same Orders

until resolution by the Court of Appeals of an emergency motion by the United States for a stay

pending appeal pursuant to Federal Rule of Appellate Procedure Sea). Support for this motion is

provided in the attached memorandum and declaration.

Case 2:1 0-cv-01941-MLCF-JCW Document 264 Filed 03/04/11 Page 2 of 2

WHEREFORE, Defendants respectfully request that the Court grant their Motion for Stay.

Respectfully submitted this 4th day of March, 2011.

IGNACIA S. MORENO Assistant Attorney General

U.S. Dept. of Justice, Env't & Nat. Resources Div.

IslBrian Collins

GUILLERMO A. MONTERO (T.A.) BRIAN COLLINS

KRISTOFOR R. SWANSON Natural Resources Section

PO Box 663

Washington, DC 20016

Tel: (202)305-0443

PETER MANSFIELD

Assistant United States Attorney Eastern District of Louisiana Hale Boggs Federal Building 500 Poydras Street, Suite B-21 0 New Orleans, Louisiana 70130 Tel: (504)680-3000

CERTIFICATE OF SERVICE

I hereby certify that on March 4,2011, I caused a copy of the foregoing to be served

through the Court's CMlECF System to all parties.

lsi Brian Collins Brian Collins

2

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOmSIANA

ENSCO OFFSHORE COMPANY, et aI.,

Plaintiffs,

v.

KENNETH LEE "KEN" SALAZAR,

SECRETARY OF THE INTERIOR, et al.,

Defendants.

CIVIL ACTION No. lO-1941(F)(2) SECTIONF

JUDGE FELDMAN

MAGISTRA TE 2

MAGISTRA TE WILKINSON

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR STAY PENDING APPEAL OR, IN THE ALTERNATIVE, FOR A TEMPORARY STAY PENDING RESOLUTION OF A STAY MOTION IN THE COURT OF APPEALS

Defendants Ken Salazar, the U.S. Department of the Interior, Michael R. Bromwich, and

the Bureau of Ocean Energy Management, Regulation and Enforcement ("BOEMRE")

(collectively "Defendants"), hereby request that the Court, pursuant to Federal Rule of Civil

Procedure 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 the

alternative, Defendants request that the Court issue a temporary stay of those same Orders until

resolution by the Court of Appeals of an emergency motion by the United States for a stay

pending 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, and

again on July 12, 2010, to issue a temporary suspension of certain pending, current, and approved

1

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 2 of 12

offshore drilling operations involving deepwater oil and gas wells. See PubIV000049; 1

PubIV000081-1 09. This temporary suspension was intended, inter alia, to afford BO EMRE the time

it needed after the Deepwater Horizon incident to issue new safety and environmental protection

rules. PubIVOOOIOO. On October 12,2010, the Secretary indicated that a suspension was no longer

needed because the issuance of new regulatory requirements, the killing of the Macondo well, and

the development of containment standards and technology had improved drilling safety, blowout

containment, and spill response capabilities. PubIVOOOI96-200. The Secretary made clear,

however, that all operators would be required to comply with applicable regulations and notices to

lessees prior to obtaining a drilling permit. PubIVOOO 198.

Plaintiffs, who would prefer the immediate approval of all drilling permits, alleged pursuant

to 5 U.S.c. § 706(1) that BOEMRE had unreasonably delayed a final decision on nine applications

for permits to drill. Plaintiffs sought, and this Court granted, an injunction compelling BOEMRE to

issue 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 two

additional applications pertaining to A TP Oil & Gas Corporation. The Court also granted that

motion, 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 United

States 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 the

applications, 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's Administrative Record for Count IV of Plaintiffs' Second Amended Complaint.

2

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 3 of 12

BOEMRE 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 subject applications. 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 tum would frustrate 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 the Court of Appeals of an emergency motion by the United States for a stay pending appeal of the District Court's Orders.

II. FACTUAL BACKGROUND

The Court is familiar with the factual background of this case, which is described in Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction, filed on December 22, 2010 (Dkt. #161), Defendants' Supplemental Brief, filed on January 20, 2011 (Dkt. #191), and Defendants' Response to Plaintiffs' Motion to Supplement Preliminary Injunction, filed on February 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 their then-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. On December 22, 2010, however, Plaintiffs moved for leave to file a Second Amended Complaint.

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The proposed pleading amended Count IV to allege unreasonable delay only with respect to nine permit applications. Plaintiffs thereafter clarified that their preliminary injunction motion sought to compel a decision from BOEMRE on five of those nine applications. On January 13, 20 II, the Court granted Ensco's motion for leave, now joined by Plaintiff ATP Oil & Gas Corporation, to file a Second Amended Complaint narrowing the scope of Count IV to nine specific permits, including the five that were subject to the then-pending motion for a preliminary injunction. See Dkt. # 184, 185. On January 12, the Court denied, without prejudice, Ensco's preliminary injunction. See Dkt. # 180.

On January 20, at the Court's request, the parties filed supplemental briefs addressing the Court's ability to impose a timeframe for action on Plaintiffs' permit applications, and what, if any, evidence justified the granting of the preliminary injunction as opposed to ultimate consideration of permanent relief at a later stage of these proceedings. See Dkt. # 188, 191.

On January 29, BOEMRE filed the administrative record for Plaintiffs' Count IV. See Dkt. # 215,218. On February 17, before the parties had the opportunity to brief on the merits on the basis of the Administrative Record, the Court sua sponte rescinded its prior denial of Plaintiffs' preliminary injunction and issued an injunction requiring BOEMRE to issue a decision on each of the five applications within thirty days. See Dkt. # 229. Upon Plaintiffs' motion, the Court supplemented that order on March 1, requiring BOEMRE to issue a decision on two additional permits within thirty days. Dkt. # 250.

IV. ARGUMENT

A. Standard for Granting a Stay Pending Appeal

Under Rule 62(c) of the Federal Rules of Civil Procedure, a district court may, in its

discretion, stay any interlocutory order, including one granting a preliminary injunction, during the pendency of an appeal of that order. Fed. R. Civ. P. 62(c). In order to obtain a stay pending 4

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 5 of 12

appeal, the moving party must: (1) make a strong showing that it is likely to succeed on the

merits; (2) demonstrate that it would suffer irreparable injury if the stay were not granted; (3)

show that granting the stay would not substantially harm the other parties; and (4) show that

granting the stay would serve the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

Rather than apply these factors in a rigid, mechanical fashion, however, the Fifth Circuit has

adopted a "balance of equities approach in determining whether to grant a stay pending appeal."

Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981). See also Nat'l Treasury Employees Union v.

Von Raab, 808 F.2d 1057, 1059 (5th Cir. 1987). Specifically, "the movant need only present a

substantial case on the merits when a serious legal question is involved and show that the balance

of the equities weighs heavily in favor of granting the stay." Id. The Fifth Circuit's approach

results from a common-sense interpretation of Rules 62(c) and Federal Rule of Appellate

Procedure Rule 8. As the Ruiz Court reasoned:

If a movant were required in every case to establish that the appeal would probably be successful, the Rule would not require as it does a prior presentation to the district judge whose order is being appealed. That judge has already decided the merits of the legal issue. The stay procedure of Fed.R.Civ.P. 62(c) and Fed.R.App.P. 8(a) affords interim relief where relative harm and the uncertainty of final disposition justify it.

650 F.2d at 565; see also Mazurek v. United States, No. 99-2003 C/W 99-2229, 2001 WL

260064 at *1 n.l (E.D. La. Jan. 11,2001) (Feldman, J.) (same); Wildmon v. Berwick Universal

Pictures, 983 F.2d 21,23-24 (5th Cir. 1992).

B. Defendants Are Likely to Succeed on the Merits of Their Appeal.

Defendants are likely to succeed on the merits of their appeal. As a threshold matter,

Plaintiffs are not entitled to an order compelling BOEMRE to issue a final decision on any

permit applications because Plaintiffs have not yet succeeded on the merits of their unreasonable

delay claim. Count IV states nine separate claims, each of which asserts that BOEMRE's review of

5

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 6 of 12

a particular application has been unreasonably delayed pursuant to 5 U.S.c. § 706(1). Through their

preliminary injunction motions, Plaintiffs sought to fully and finally resolve seven of those claims by

asking the Court to compel BOEMRE to reach final decisions on the applications pertaining to

Cobalt, Nexen, and ATP. To obtain an order compelling agency action under 5 U.S.c. § 706(1),

however, a plaintiff must achieve actual success on the merits; a mere likelihood of success is

insufficient. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) ("it is generally inappropriate

for a federal court at the preliminary injunction stage to give a final judgment on the merits.");

Dresser Rand Co. v. Virtual Automation, Inc., 361 FJd 831, 847 (5th Cir. 2004) ("[F]or a permanent

injunction to issue the plaintiff must prevail on the merits of his claim"). That did not occur in this

case and, accordingly, the Court's issuance of an order compelling agency action was improper. See

Wilson v. Zarhadnick, 534 F.2d 55, 57 (5th Cir. 1976) (finding reversible error where district court

issued permanent injunction after the hearing on a preliminary injunction motion without prior notice

to parties and without first consolidating the proceedings with a trial on the merits).

But even if a motion for a preliminary injunction were an appropriate means of seeking

relief under 5 U.S.C. § 706(1), the Court's February 17 finding-which the Court extended to its

March 1 Order-was based upon its conclusion that the OCSLA requires Interior to act within

thirty days of receiving an application for a permit to drill. See Dkt. #229 at 5-15. The OCSLA,

however, imposes no such time limit. See Dkt. #161 at 11-12; Dkt. #191 at 5-7,z

Instead, the merits of Count IV must be assessed separately for each permit application

that Plaintiffs allege has been unreasonably delayed. The Administrative Record for Count IV

2 The Court's Order appears to have relied at least in part on the OCSLA's 30-day time limit for review of Exploration Plans as its rationale for imposing the same time limit for review of APDs. The 30-day period for Exploration Plans (and the 120-day period for approval of Development Operations Coordination Documents) does not begin to run until the EP or DOCD is deemed submitted. Declaration of Michael Saucier at ~ 11.d. n. 2 (attached hereto as Exhibit A); see also 30 C.F.R. § 250.231; 250.233.

6

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 7 of 12

contains those permit-specific factual circumstances. Some applications present circumstances requiring a longer processing time than others and, accordingly, the reasonableness of BOEMRE's processing time cannot be "decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful .... " Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1101-1102 (D.C. Cir. 2003); see also Liberty Fund, Inc. v. Chao, 394 F Supp. 2d 105, 115 (D.D.C. 2005) (rejecting as unpersuasive those decisions that have granted mandamus petitions based solely on the length of a processing delay and without sufficient consideration of other TRAC factors); Vietnam Veterans of Am., 2009 WL 6179013, at *2 (refusing argument that agency should render decisions on all claims for benefits within 90 days of receipt, and recognizing that each claim may present unique "nature, complexity, or status").

The Court assessed the agency's review time by applying the six "TRAC factors." See Dkt. #229 at 8-9. Applying those factors to this case, Defendants explained that regulatory requirements for drilling permits have significantly evolved since April 20, 2010, thereby increasing the amount of time needed to review each application. See Dkt. #161-6 ~~ 4, 7-10. Defendants also explained that the applications BOEMRE receives frequently lack the information that regulations require. See Dkt. #161 at 15; Dkt. #161-6, ~~ 18-19.

Finally, Defendants explained that BOEMRE had taken action on six of the seven permit applications at issue here by identifying flaws in the applications and returning them to the operator for correction. See Dkt. #161 at 12-14; Dkt. # 247 at 6-8. For example, with regard to the Cobalt Energy application for GB 959 Well #1, BOEMRE has engaged in multiple exchanges with the applicant seeking additional information to comply with the permitting requirements. See, e.g., PubIV03833; 003835; 003844. Similarly, for ATP's application for MC

7

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 8 of 12

941 Well #4, the Record reflects the same approach, including numerous email exchanges of

information and face-to-face meetings to discuss the application. See, e.g., PubIV005889-

005890; 005937-005949; 005972-005973 (reflecting on an in-person meeting between ATP and

BOEMRE representatives). BOEMRE has not unreasonably delayed its review where the

applications themselves are not complete. See Orion Reserves Ltd. P'ship v. Kempthome, 516

F. Supp. 2d 8, 12-13 (D.D.C. 2007) (recognizing that a court's calculation of the time elapsed

since an agency came under a "duty to act" with respect to an application does not include

periods during which the application is found to be void or incomplete). Defendants also

explained that BOEMRE had identified flaws in the seventh application that prevented

BOEMRE from approving it, and that the operator did not plan to begin drilling until June 2011.

See Dkt. #161 at 14-15.

Under those circumstances, Plaintiffs could not demonstrate that BOEMRE had

unreasonably delayed a decision on any of the five applications as of January 20, 2011 (the date

the parties were directed to submit supplemental briefing). Moreover, after briefing on the

preliminary injunction, but before the Court's February 17 Order, Defendants submitted the

Administrative Record with respect to their processing of the nine permit applications at issue in

Count IV, which further demonstrates the reasonableness of BOEMRE's review process.

Defendants are likely to succeed on the merits of their appeal and a stay of this Court's Orders

pending appeal is therefore merited.

c. The Balance of Harms Weighs Heavily in Favor of Granting Defendants' Request for a Stay Pending Appeal.

The balance of harms in this case weighs strongly in favor of staying the Court's Orders.

The regulatory requirements that govern the permitting process are designed to prevent further

loss of life and environmental and economic devastation such as occurred as a result of the

8

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 9 of 12

Deepwater Horizon incident. The Cobalt, Nexen, and ATP applications subject to the Court's Orders have not yet satisfied these requirements and, accordingly, they cannot be approved in their current state. See Decl, of Michael J. Saucier at ~ 10, Attached as Exhibit A to this Motion (hereinafter "Saucier Decl."). The present state of the seven applications, combined with the Court's imposed decision deadlines, will cause harm to BOEMRE, the public, and development of the Outer Continental Shelf.

First, BOEMRE itself will be harmed in complying with the Court's Orders. Consistent with its normal practice, BOEMRE intends to assist the operators in meeting the regulatory requirements in time to allow their permits to be approved under those regulations prior to the Court's deadlines. Saucier Decl. at ~ Il.b. To accomplish that task, however, the agency will have to refocus its permit review resources to heavily focus on these seven applications. Id. at ~ II.c. This will pull agency staff away from other important tasks, including review of other shallow and deepwater permit applications; correspondence and communication with other operators regarding those other applications and their current state of compliance; and review of weekly reports from active operations to ensure drilling is proceeding in accordance with approved permit applications. Id. at ~~ II.b. Moreover, "with respect to the seven applications subject to the Court's orders, if the applicable thirty-day deadline approaches and the deficiencies in a given permit application have not been corrected, or if the information is submitted without sufficient time for BOEMRE to complete its review prior to the deadline, the application may have to be denied so that the agency can comply with the Court's orders." Id. at ~ I2.d.

Second, compliance with the Court's Orders will greatly impact other operators. Because BOEMRE's resources will be focused on the seven applications, the agency will be forced to

9

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delay its review of other applications, including applications for shallow water drilling, which may otherwise be ready for final review and approval. Id. at ~ 12. This may delay resource development at these other wells, potentially causing economic harm to the companies proposing those operations. Id. at ~ l2.b. That harm is underscored by the fact that shallow water drilling companies generally maintain less capital than deepwater companies, and are thus not as well situated to absorb delays in permit review or decision-making. Id. at ~ 12.c.

Third, the resource reallocation that necessarily results from the Court's Orders will harm the public's interest in the efficient development of oil and gas resources. Id. at ~ l2.a. Operations that may have otherwise been able to proceed in the coming weeks will be delayed; all in the name of a making a final decision on the seven applications that both the operators and BOEMRE know are not yet ready for final review. Id. at ~~ 11-12. The disruption to BOEMRE's developed iterative permit review process only frustrates Congress's stated policy of making the outer Continental Shelf 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.

By contrast, Plaintiffs themselves will not be prejudiced by the granting of the stay, because, consistent with the iterative process it follows in reviewing permit applications, BOEMRE would continue to review Plaintiffs' permit applications during a stay of the preliminary injunction. Moreover, as Defendants noted in their Motion for Summary Judgment on Counts II and III of Ensco's Amended Complaint, Ensco lacks standing to challenge the review of permits because it is not a lessee or operator. See Dkt. 42 at 6-8. In addition, Ensco failed to demonstrate that it would be injured in the absence of injunctive relief. Accordingly, it is abundantly clear that Ensco would also not be harmed by the granting of a stay. Ensco has

10

Case 2:1 0-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 11 of 12

failed to show that it will suffer any compensable economic harm as a result of BOEMRE's

orderly review of its permit applications. See Dkt. #161 at 22-23. In addition, Ensco's only

other argument for injury, the loss of its skilled workforce, is similarly flawed. Id. at 23-24.

Ensco has not provided a single example of an employee who has lost skills or who has left

Ensco and will not be rehired. Id.

D. In the Alternative, the Court Should Enter a Temporary Stay Until Resolution By the Court of Appeals of an Emergency Stay Request.

Should the Court decide against granting Defendants' request that its Orders be stayed

pending appeal, then Defendants respectfully request that the Court temporarily stay the Orders

pending resolution by the Court of Appeals of an emergency motion by the United States under

Federal Rule of Appellate Procedure 8(a). See, e.g., Kouba v. Allstate Ins. Co., Civil Action No.

S-77-99 LKK, 1981 WL 278, *7 (E.D. Cal. Nov. 12, 1981) ("in order to facilitate defendant's

Rule 8(a) application, this court grants defendant's motion for a temporary stay"). A stay for this

purpose will not impose appreciable hardship upon the Plaintiffs, and will ensure that the Court

of Appeals has sufficient opportunity to review the parties' competing positions on whether a

stay issued by that court is appropriate.

v. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court enter a stay

pending appeal of its Orders granting Plaintiffs' Motion for Preliminary Injunction, or in the

alternative, that it enter a temporary stay until resolution by the Court of Appeals of an

emergency motion by the United States for a stay pending appeal.

11

Case 2:10-cv-01941-MLCF-JCW Document 264-1 Filed 03/04/11 Page 12 of 12

Dated: March 4th, 2011.

IGNACIA S. MORENO Assistant Attorney General

Environment and Natural Resources Division

lsi Brian Collins

GUILLERMO A. MONTERO (T.A.) BRIAN M. COLLINS

KRISTOFOR R. SWANSON

U.S. Department of Justice

Environment and Natural Resources Division Natural Resources Section

PO Box 663

Washington, DC 20016

Tel: (202)305-0443

Fax: (202)305-0267

PETER MANSFIELD

Assistant United States Attorney Eastern District of Louisiana Hale Boggs Federal Building 500 Poydras Street, Suite B-21 0 New Orleans, Louisiana 70130 Tel: (504)680-3000

ATTORNEYS FOR FEDERAL DEFENDANTS

CERTIFICATE OF SERVICE

I hereby certify that on March 4th, 2011, I caused a copy of the foregoing to be served

through the Court's CMlECF System to all parties.

IslBrian Collins Brian Collins

Attorney for Defendants

12

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 1 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

) ) ) )

)

Plaintiff, )

)

v. ) )

KENNETH LEE "KEN" SALAZAR. et al. )

)

Defendants. )

)

----~---------)

ENseo OFFSHORE COtvlPANY

Case No.

2: I O-cv-OI941-MLCF-JCW

JUDGE MARTIN i,c. FELDMAN

SECTION "F"

MAGISTRATE JOSEPH C. WILKINSON, JR .. DIVISION 2

DECLARATION OF MICHAEL SA UefER

My name is Michael 1. Saucier. I have first-hand experience with, and personal

knowledge of. the facts and matters discussed in this declaration, or I received knowledge of

them as part of my official duties.

Qualifications

1. I am the Regional Supervisor for Field Operations in the Gulf of Mexico Regional Office

of the Bureau of Ocean Energy Management. Regulation and Enforcement (BOEMRE).

formerly the Minerals Management Service (MMS), in the Department of the Interior.

have held this position since July 6, 2008. The BOEMRE Gulf of Mexico Region

manages the mineral resources of the Outer Continental Shelf (OeS) from offshore of

Texas to Maine. although most activity is concentrated in the Gulf of Mexico.

2. As Regional Supervisor for field Operations. I am responsible for all technical and

administrative functions and the management of all activities within Field Operations,

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 2 of 15

including inspections, permit reviews. investigations. training, and regulatory compliance

and enforcement.

3. Before my current assignment, I served as Deputy Regional Supervisor for District

Operations in the MMS Gulf of Mexico Region (Nov. 25. 2007 - July 5. 2008).

4. Additional positions I held with MMS were District Manager of the Houma District

Office in Houma, Louisiana (Sept. 3. 1995 - Nov. 24,2007). Drilling Engineer for the

Houma District Office (Jan. 3, 1988 - Sept. 2, ) (95) and Staff Engineer for the Houma

District Office (Sept. 30, 1984 - Jan. 2. 1988). In all. I have worked on energy matters

for the Federal Government for over 25 years.

5. I have reviewed the preliminary injunction orders issued by the district court on February

17,2011, and March L 2011. in the above-captioned case.

Permit Review

6. 1 have attached a simplified summary ofthe review process for applications for permits to

drill. See Exhibit I. The permit application review process has always involved a back-

and-forth exchange of documents and information between the applicant and the

BOEt,,1RE Gulf of Mexico Region. In that process, permit application submittals arc

initially reviewed by BOEMRE staff any deficiencies are identified, and the applications

are "returned" to the operators so that the applications can be "resubmitted" with the

corrected or missing information. The submission. return, and resubmission of a permit

are accomplished through the e- Well system, a web-based permit review software

application. The e-Well system's submittal, return. and resubmittal process facilitates

iterative, on-going review and communication between the operator and the BOEMRE

drilling engineer reviewing the permit in an efficient manner that allows the application

2

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 3 of 15

to be modified and corrected. The process may include several rounds of submission and

return. Because of this process. I cannot recall the Gul f Region ever having to formally

deny a permit application, though there have been situations in which an operator has

• 'v vithdrawn" an application because of a decision by the operator not to move forward

with drilling the well. Absent a withdrawal, the agency and the operator work

cooperatively, however long it may take, to ensure that all regulatory requirements are

met so that the application may be approved. Depending on the specific characteristics of

the well and the applicable regulatory requirements. this process can take anywhere from

a few days to many months.

7. Before a drilling permit can be approved, there are many direct and related approvals that

must be in place. These may include. but are not limited to: approval of the Exploration

Plan or Development Operation Coordination Document under which the specific drilling

permit is requested; compliance with regulations requiring an Oil Spill Response Plan:

compliance \ .... ith the National Environmental Policy Act: approval of an Oil Spill

Financial Responsibility (OSFR) document; a geological and geophysical review of all

the relevant hydrocarbon bearing zones: determination and veri fication of worst case

discharge scenarios; and a demonstration that blowout preventer control systems comply

with regulations.

8. The drilling application review process bas never involved a submittal followed by a

simple approval or denial. as is implied by the court's preliminary injunction orders.

Rather, BOEMRE is always interactively working with the applicants. Given the

additional regulatory and informational requirements that have been developed and

implemented since the Deepwater Horizon incident, the time required to prepare and

.,

-,

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 4 of 15

review deepwater permit applications has increased as both the operators and the

reviewing engineers adapt to the changed landscape. The review process, however.

remains on-going. interactive, and open-ended.

Permit Applications at Issue

9. There are several types of drilling permits. These include Application for Permit to Drill

(APD), Application for Sidetrack (AST): and Application for Bypass (ABP). There can

also be revised applications for each of these permits types --- RPDs. RSTs. and RBI's.

Of the seven permit applications subject to the court's February 17 and March 1 orders.

three are APDs. one is an AST. and two arc RPDs. The remaining permit application is

for an Application for Permit to Modify. which. in this case. involves completing a

previously-drilled well for production. Plaintiffs also challenge [\\'0 additional permit

applications in Count IV, but which are not subject to the Court's orders. One of those

permit applications was approved on February 28. 2011.

10. Given the structures of the permit review process. the facts and information before

BOEMRE are constantly changing. But. if a decision on the seven permit applications in

the court's February 17 and March 1 orders would have had to be made before March 2,

2011. none of those applications could have been approved. As of March 2. the

outstanding issues were as follows:

a. With respect to Well No.1 in lease block GC 872. the application has twice been

returned to the applicant. with the most recent on or around February 25.2011.

This latest return occurred with a request to resubmit the application with

corrected or missing information, including, but not limited to, the size. grade.

and weight of the drill pipe to be used. clarification of the procedure for

4

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 5 of 15

sidetracking around an existing cement plug, and correction of several items on

the Well Design Information sheet. As of March 2. 2011. the applicant had yet to

resubmit the application. The applicant had also not submitted complete

information such that a determination could be made on subsea containment

capabilities. Further, on February 23. 2011. BOEMRE informed the applicant

that it will need to revise its Exploration Plan.

b. With respect to Well No. I in lease block GC 504, the application was returned to

the applicant for the third time 011 or around February 25. 2011. with a request to

resubmit the application with corrected or missinginformation, including, but n01

limited to. the operating procedures for the diverter, a demonstration of how the

well control procedures will be implemented if wellbore pressures exceed the test

pressure, and the procedure for pressure testing the blind-shear ram during the

Dead-Man test. As of March 2, 20 II. the applicant had yet to resubmit the

application. The applicant had also not submitted complete informationsuch that

a determination could be made on subsea containment capabilities. The operator

has submitted a revised Exploration Plan. which is currently under review.

c. With respect to Well No. I in lease block GC 327, the application has twice been

returned to the applicant. with the most recent on or around February 25. 2011.

This latest return occurred with a request to resubmit the application with

corrected or missing information, including. but not limited to. compliance with

30 C.F.R. § 250.451 (g). a demonstration of how the well control procedures will

be implemented if well bore pressures exceed the test pressure, and the operating

procedures for the diverter. As of March 2. 2011, the applicant had yet to

5

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 6 of 15

resubmit the application. "[be applicant had also not submitted complete

information such that a determination could be made on subsea containment

capabilities. In addition, the operator's Exploration Plan is currently under

review, for which BOEr'.iRE requested additional information on February 24,

2011.

d. With respect to Well No.1 in lease block GC 814. the application was returned to

the applicant for the fourth time on or around February 25. 2011. with a request to

resubmit the application with corrected or missing information. including. but not

limited to. the operating procedures for its diverter system. a U.S. Coast Guard

certificate of compliance. and the procedure for pressure testing the subsea blind-

shear ram for the Dead-Man test. As of March 2. 20 II. the applicant had yet to

resubmit (he application. The applicant had also not submitted complete

information such that a determination could be made on subsea containment

capabilities. Further. an environment assessment is still being conducted for the

operator's Exploration Plan.

e. With respect to Well No. I in lease block GS 959. the application was returned to

the applicant on or around January 28. 20 t ) , with a request to resubmit the

application with corrected or missing information, including. but not limited to. a

schematic of the blowout preventer with components identified. information on

the blowout preventer stack pursuant to 30 C.F.R. § 250.442(d) and (I), and a

statement from an authorized company official that the operation would be in

compliance with existing regulations. On or around February 28. 20 l l , the

operator resubmitted the application. but has not yet submitted a containment plan

6

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 7 of 15

that would demonstrate containment capabilities. The Exploration Plan for this

we1l was recently approved on February 23,. 2011.

f. With respect to Well No.4 in lease block Me 941. the application was returned to

the applicant on or around February 18. 20 II, with a request to resubmit the

application with corrected or missing information. The applicant did not resubmit the

application until March 2. 20 II. BOEMRE will now undertake a review of the

additional information submitted to determine the application's completeness.

BOEMRE also requested additional information for the operator's Development

Operation Coordination Document on February 23. 2011.

g. With respect to Well No. SS002 in lease blocks GC 299 and GC 300, the application

was returned to the applicant on or around February 3.2011, with a request to

resubmit the application after removing. adding. or correcting information and/or

several attachments to the application. including, but not limited to. those that relate

to information on remotely operated vehicles and autoshear/deadman testing

procedures tor the stump and initial blowout preventer test. As of March 2, 2011, the

applicant had yet to resubmit the application.

Impacts of the District Court's Orders

1). The court's February 17 and March I orders require BOEMRE to act on the seven

applications within thirty days ofeach order. Reaching a decision on those applications

by the court-imposed deadlines will greatly interfere with the Bureau's daily operations

and permit review process.

a. The Gulf of Mexico Region is divided into five district offices, with each office

responsible for a geographic area of the OCS. Drilling applications for both

7

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 8 of 15

shallow and deepwater permits are reviewed in the district offices by drilling

'.

engineers. Given resource limitations. each district office only has one drilling

engineer.' The seven permit applications subject to the court's order fall within

three of these districts: the New Orleans District (I application); the Lafayette

District (1 application): and the Houma District (5 applications). At any given

time. each drilling engineer can have anywhere between a few to several dozen

permit applications before him lor review.

b. Consistent with the nature of the permit review as it normally exists. my staff and

1 intend to do everything within our powers to assist operators in meeting the

regulatory requirements so that their permits may be approved. if possible. by the

court's deadlines. Most significantly, this will include coordination with the

operators and an accelerated review of application submissions and corrections.

To accomplish that. however. the drilling engineers in the New Orleans,

Lafayette, and Houma Districts would need to spend an extraordinary amount of

their available time to focus on these seven permits. If the operators submit the

still missing or incorrect information without sufficient time ahead of the court's

deadlines. these drilling engineers may be forced to spend all of their lime on

these seven applications. This will interfere with. ifnot entirely eliminate. their

ability to meet their other responsibilities, including. but not limited to: review

and decision-making for the other permit applications before them;

correspondence with those other applicants to assist them in correcting any

application deficiencies; and their weekly review' of activity reports for the on-

I The Lafayette District recently hired a second drilling engineer. who still needs further training.

8

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 9 of 15

going operations in their districts to be sure those operations are being conducted

in accordance with the approved permit. applications.

c. Responsibilities at the supervisory level will also be impacted. For example. the

District Manager of the Houma District is the Region's lead on assessing a given

permit application's demonstration of containment capabilities. Such an

assessment, which can be lengthy. will be required for six of the seven permit

applications subject to the court's orders. Focus on those six applications in an

effort to meet the court's deadline will interfere with the Houma District

Manager's ability to review containment capabilities for other applications that

are presently before the Gulf of Mexico Region (thus delaying any decision on

those applications). and may also interfere with his daily managerial duties.

d. Additionally. at least five of the seven permit applications still require approval of

an initial or revised EP (needed for exploratory drilling under a lease) or DoeD

(needed before an operator can begin to develop an already-explored lease) that

covers the wells for which the operator seeks a permit to drill. Approval of these

plans involves review from the Offices of Field Operations. Leasing and

Environment. Resource Evaluation. and Production and Development. as well as

incorporating comments from any affected States and the publ ic. EPs and

DOCDs are rarely submitted in a complete form and thus usually cannot be

approved or denied as submitted. Instead. similar to the permit review process.

Bureau staff communicates and coordinates with the operator regarding plan

deficiencies and the need for amendments or revisions. Under this process, it

generally takes between one and four months before a plan is considered complete

9

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 10 of 15

and ready tor a final approval or dcnial.2 Accelerating this process in an attempt

to meet the court's deadlines could interfere with the responsibilities of many

offices in the GulfofMexico Region in the same manner that it will interfere with

drilling engineers' responsibilities. Additionally, these initial and revised EPs or

DOC Ds may require an environmental assessment under the National

Environmental Policy Act, which itself is likely to be a time-consuming process.

12. The court's February 17 and March 1 orders will also interfere with the orderly and

efficient development of oil and gas resources on the oes.

a. As noted above, the need for drilling engineers to focus on the seven applications

that arc subject to the court's orders will delay the engineers' review of. and

decision-making on. the other permit applications before them. This may create a

situation where permits for drilling operations that arc not scheduled to begin in

the short-term would be unnecessarily prioritized over other more time-sensitive

reviews. One permit at issue in this litigation - Well No.1 in lease block GB 959

- illustrates the point The operator has informed the Gulf of Mexico Region that

the drilling rig to be used at this well will be overseas until this coming summer.

Thus, even if the penni! for that well could be approved by the court's deadline.

no drilling would begin. In an effort to work toward approval by the court's

deadline, however. the Bureau will need to focus resources on review of this

application. Those resources will come at the expense of other permit

2 BOEMRE has 30 days to approve or deny or an EP (43 USC. § 1 340(c)( 1» and 120 days to approve or deny a OOeD (30 C.F,R. ~ 254.267 and 30 C.F.R. § 250.270(1 )(i». The 30 and 120 day requirements begin only when the EP or OOCD is deemed "submitted;" amendments received after the EP or ooeD is initially submitted restart this time period 00 C.F.R. § 250.270( 1 )(iii)).

10

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 11 of 15

applications for which drilling is planned to begin much sooner. At a minimum,

the permit applications upon which the drilling engineers would have normally

focused over the coming weeks will be delayed. and the operators for those

applications will be forced to wail to receive feedback on any deficiencies in their

applications and/or a final decision on the application.

b. The potential harm in the re-prioritization that results from the court's orders is

also illustrated by the number of per mil applications presently before the Bureau.

As of February 25. 20 II. 170 shallow water permit applications were pending

before the agency, 206 of which are currently under review and 64 of which have

been returned to the applicants with requests for additional information. Also as

of February 25. 2011. 52 deepwater well permit applications were pending before

the agency, 20 of which are currently under review and 32 of which were returned

to the applicants with requests for additional information. The court's orders have

created a situation in which these applications must take a back seat to seven other

applications without consideration of need. any existing deficiencies in the

applications. or the time that may be necessary (on the part of BOEMRE and the

operator) to correct those deficiencies. This could ultimately delay development

in the OCS that would have otherwise begun in the near future and potentially

cause economic harm to those operators. or their contractors, that are awaiting

permit approval to begin operations.

c. Further, the number of shallow water permit applications that are complete or

nearly complete is significantly greater than the number of deepwater permit

applications in that same status. Shallow water penn its are generally much less

11

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 12 of 15

complex than deep v vater permits, and. as a result, the corresponding amount of

time necessary for agency review is also less. The court's orders, however,

effectively focus permit review exclusively on the seven deepwater permit

applications. This could adversely affect shallow water operators. who generally

have fewer financial resources and less capability to withstand lengthy application

processing pert ods.

d. With respect to the seven applications subject to the court's orders. if the

applicable thirty-day deadline approaches and the deficiencies in a given permit

application have not been corrected. or if the information is submitted without

sufficient time for BOE\'1RE to complete its review prior to the deadline. the

application may have to be denied so that the agency can comply with the court's

orders. Such a result conflicts with the normal, iterative permit review process

and therefore potentially harms the applicant-operators by requiring a final

decision before the operators are ready or able to respond to any present

application deficiencies.

Pursuant to 28 U.s.c. § 1746, 1 declare under penalty of perjury [hat the foregoing is true and correct to the best of my knowledge.

Regional Supervisor, Field Operations BOEMRE Gulf of Mexico Region

12

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:10-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 13 of 15

EXHIBIT 1

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:1 0-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 14 of 15

APD Review Process Summary

l. Operator submits electronic APD through eWell (BOEMRE's secure internetbased well permitting system)

a. Please note: operator cannot submit an APD unless a plan (EP or DOCD) has been submitted and entered into TIMS via the BOEMRE Region Plans section.

2. BOEMRE District Drilling Engineer (DE) queries submitted APDs on a periodic basis (usually daily but could be more or less depending on circumstances or workload) or by request from operator (typically operator notifies DE upon submission of APD especially if expedited review is wanted). APDs are reviewed on a prioritized basis (not necessarily chronologically) based on rig status.

3. DE reviews APD for general completeness. This would entail the following:

a. DE verifies that all required information/data as per the regulations (30CFR250, Subpart D) is submitted within the electronic APD

b. DE verifies OSFR (Oil Spill Financial Responsibility) is current

c. DE checks APD for typographical errors/inconsistencies (Note: General review tor "odd" data that is obviously incorrect i.e. Mud Weight. of 50 ppg or drilling depth of 75000 ft)

d. Check general rig data (ABS/DNV and USCG certificates are current)

c. DE generates Geological/Geophysical Review request via eWell to be performed by BOEMRE Region Resource Evaluation (RE). (Please note APD will not be approved until RE review is completed)

4. DE performs technical review

a. Analyzes well design

I. Evaluate casing program including:

1. Setting depths

2. Formation Integrity tests

3. Pressure tests

ii. Evaluate submitted Maximum Anticipated Surface Pressures (M.ASP)

Ill. Perform independent MASP calculations Evaluate casing cementing program including:

1. Isolation of all hydrocarbon bearing zones

2. Ensure cement volumes are in accordance with regulations

3. Ensure compliance with API RP 65

v. Perform independent cementing calculations

vi. Evaluate mud program including:

1. Mud weight and type

2. Evaluate Pore Pressure/Mud Weight/Fracture Gradient chan

iv.

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2:1 0-cv-01941-MLCF-JCW Document 264-2 Filed 03/04/11 Page 15 of 15

VlI. Verify Professional Engineer certification as required per regulation

viii. Verity compliance with all applicable NTLs (N06 and N 1 0 ill particular)

ix. Other reviews as stated in APD checklist

b. Analyzes BOP system

I. Evaluate proposed BOP schematic to verify compliance with regulations

11. Verify BOP Shearing/Sealing Capability is in accordance with regulations

iii. Verify BOP certification is in accordance with regulations

IV. Perform independent BOP Test calculations to verify compliance with regulations

v. Verify BOE1VIRE 1'0 Regional approval of BOP control systems c. Reviews drilling prognosis

1. Evaluate for consistency with well design information

ii. Evaluate prognosis to verify compliance with regulations

d. Reviews well location plat with directional plot for accuracy and consistency

e. Other Reviews as staled in API) checklist

5. If APD satisfies all review items listed above and all plan approvals have been finalized by BOEMRE Plans Unit. then DE approves APD (DE approves APD for District Manager) with all applicable cautions and conditions of approval as per the G&G. Plans. and DE reviews.

6. If APD does NOT satisfy all review items listed above. the DE returns APD to the operator with comments documenting the deficiencies that need to be corrected prior to APDapproval.

Typical Reasons for returning APDs to the operator:

1. APD fails general completeness review. Most common deficiencies are:

a. Inconsistencies within APD submittal

b. Typographical errors within API) submittal

c. Expired ABS/DNV or USCG certificates

2. APD fails technical review. Most common deficiencies are:

a. Inadequate BOP/Casing lest pressures

b. Inadequate casing cement volumes

c. Inadequate Formation Integrity tests

d. Missing required certifications (PE certifications. 3rtl party Shearing Calculations. etc.)

3. Clarification/Additional Technical Detail required from Operator

Defendants Motion for Stay Pending Appeal EXHIBIT A

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-3 Filed 03/04/11 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

Defendants.

SECTIONF

ENSCO OFFSHORE COMPANY, et al.,

CIVIL ACTION No. 2:10-cv-01941(F)(2)

Plaintiff,

v.

JUDGE FELDMAN

SALAZAR, et al.,

MAGISTRATE 2

MAGISTRATE WILKINSON

NOTICE OF SUBMISSION

Pursuant to Local Civil Rule 7.2, Federal Defendants hereby give notice ofa March 30, 2011,

assigned submission date for their motion to stay the Court's February 17, 2011, and March 1, 2011,

orders granting Plaintiffs' motion for a preliminary injunction.

Respectfully submitted this 4th day of March, 2011.

IGNACIA S. MORENO Assistant Attorney General

U.S. Dept. of Justice, Env't & Nat. Resources Div.

/s/ Brian Collins

GUILLERMO A. MONTERO (T.A.) BRIAN COLLINS

KRISTOFOR R. SWANSON Natural Resources Section

PO Box 663

Washington, DC 20016

Tel: (202)305-0443

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-3 Filed 03/04/11 Page 2 of 2

PETER MANSFIELD

Assistant United States Attorney Eastern District of Louisiana Hale Boggs Federal Building 500 Poydras Street, Suite B-21 0 New Orleans, Louisiana 70130 Tel: (504)680-3000

CERTIFICATE OF SERVICE

I hereby certify that on March 4,2011, I caused a copy of the foregoing to be served

through the Court's CMlECF System to all parties.

lsi Brian Collins Brian Collins

2

Case 2: 1 0-cv-01941-MLCF-JCW Document 264-4 Filed 03/04/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

Plaintiff,

SECTIONF

ENSCO OFFSHORE COMPANY,

CIVIL ACTION No. 2:10-cv-01941(F)(2)

JUDGE FELDMAN

v.

MAGISTRATE 2

SALAZAR, et al

MAGISTRATE WILKINSON

Defendants.

ORDER

Before the Court is Defendants' motion to stay the Court's Orders of February 17, 2011,

and March 1, 2011, pending Defendants' interlocutory appeal of those Orders to the United

States Court of Appeals for the Fifth Circuit. Having considered the motion, and the memoranda

in support and opposition thereto, Defendants' motion is hereby GRANTED. The Court's

February 17 and March 1 Orders, which require Bureau of Ocean Energy, Management,

Regulation and Enforcement action on seven applications for permits to drill, are stayed until

further order.

SO ORDERED.

Date:

-----------------

MARTIN r..c. FELDMAN United States District Judge

1

Case 2: 1 0-cv-01941-MLCF-JCW Document 265 Filed 03/04/11 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOmSIANA

ENSCO OFFSHORE COMPANY, et al.,

Plaintiffs,

v.

SALAZAR, et aI.,

Defendants.

CIVIL ACTION No. lO-1941(F)(2) SECTIONF

JUDGE FELDMAN MAGISTRATE 2

MAGISTRA TE WILKINSON

DEFEDANTS' EX PARTE MOTION TO EXPEDITE CONSIDERATION OF MOTION FOR STAY PENDING APPEAL

Defendants Ken Salazar, the United States Department of the Interior, Michael R. Bromwich,

and the Bureau of Ocean Energy Management, Regulation and Enforcement, ("Defendants"), hereby

file this Motion to Expedite Consideration of Defendants' Motion for Stay Pending Appeal or, In the

Alternative, for a Temporary Stay Pending Resolution of a Stay Motion in the Court of Appeals

(Dkt. # 264).

Defendants have noticed an appeal of the Court's February 17 and March 1, 2011, Orders

("Orders") (Dkt. #229, 250), which granted Plaintiffs' motion for a preliminary injunction and

compel the Bureau of Ocean Energy Management, Regulation and Enforcement ("BOEMRE") to

issue a decision on, respectively, five and two applications for permits drill on the Outer Continental

Shelf within thirty days. Under the Court's Orders, BOEMRE must issue a decision on five of the

applications by March 19 and the additional two applications by March 31. Defendants have

therefore moved to stay the Court's Orders pending their appeal. Good cause exists for expediting

consideration of Defendants' motion for stay. The Court's next available submission date is March

Case 2:1 0-cv-01941-MLCF-JCW Document 265 Filed 03/04/11 Page 2 of 3

30, 2011-well after the March 19 deadline to act on five permit applications. Thus, to ensure that

Defendants' requested stay serves its intended purpose of maintaining the status quo, it requires

consideration as soon as possible. Further, given the impending deadlines, Defendants request

finality from the Court on their motion to stay by Wednesday, March 9, 2011. If the Court's docket

does not allow it to resolve the motion by that time, Defendants will need to seek a stay pending

appeal from the United States Court of Appeals for the Fifth Circuit.

WHEREFORE, Defendants respectfully request that this Court grant their Motion for

Expedited Consideration of Defendants' Motion for Stay Pending Appeal or, In the Alternative, for a

Temporary Stay Pending Resolution of a Stay Motion in the Court of Appeals. A proposed order is

attached.

Respectfully submitted this 4th day of March, 2011,

IGNACIA S. MORENO Assistant Attorney General

U.S. Dept. of Justice, Env't & Nat. Resources Div.

lsi Brian Collins

GUILLERMO A. MONTERO (T.A.) BRIAN COLLINS

KRISTOF OR R. SWANSON Natural Resources Section PO Box 663

Washington, DC 20016

Tel: (202)305-0443

PETER MANSFIELD

Assistant United States Attorney Eastern District of Louisiana Hale Boggs Federal Building 500 Poydras Street, Suite B-2l0 New Orleans, Louisiana 70130 Tel: (504)680-3000

2

Case 2:10-cv-01941-MLCF-JCW Document 265 Filed 03/04/11 Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that on March 4,2011, I caused a copy of the foregoing to be served through the Court's CMlECF System to all parties.

lsi Brian Collins Brian Collins

3

Case 2:10-cv-01941-MLCF-JCW Document 265-1 Filed 03/04/11 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

Plaintiffs,

CIVIL ACTION No. 2:10-cv-1941(F)(2)

ENSCO OFFSHORE COMPANY, et al.,

SECTIONF

v.

JUDGE FELDMAN

SALAZAR, et ai,

MAGISTRATE 2

Defendants.

MAGISTRATE WILKINSON

ORDER

Having considered Defendants' Motion to Expedite consideration of their motion for stay

pending Defendants' appeal of the Court's February 17,2011, and March 1,2011, preliminary

injunction orders, and good cause being shown, the motion to expedite is hereby GRANTED.

SO ORDERED.

Date: _

MARTIN L.C. FELDMAN United States District Judge

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