Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 1 of 29 PageID: 291214

CIVIL COVER SHEET

JS 44 (Rev. 12/12)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplenient the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIpNSONNEX7'PAGEOFTHIS FORM.)

I. (a) PLAINTIFFS
State of New Jersey, Department of Environmental Protection; and
Bob Martin, Commissioner, New Jersey Department of Environmental
Protection
(b) County of Residence of First Listed Plaintiff Mercer County, NJ

DEFENDANTS
National Science Foundation; France Cordova, Director, NSF; NORA
Office for Coastal Mgmt; Jeffrey Payne, Director, OCM; NOAH NMFS;
Eileen Sobeck, Asst Admin, NMFS; Lamont-Doherty Earth Observ.
County of Residence of First Listed Defendant Arlington County. VA

(EXCGP'l/N U.S. PLAIN7/FFCASESJ

(IN tLS. PLAlNTlFF CASES ONLY)
NOTE:

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

Attorneys (IfKnownJ

~C~ Attorneys (Firm Name, Address, Emai!and 7e[ephone N~m~berJ

John J. Hoffman, Acting Attorney General of New Jersey, by David Apy
NJ Div. of Law, R.J. Hughes Justice Complex, 25 Market Street, Box 093
Trenton, NJ 08625; David.Apy@Ips.state.nj.us; 609-292-8567
II. BASIS OF JURISDICTION(PJacean",r"~nonedoxon(y)
❑ l

U.S. Go~~ernment
Plaintiff

O 3

Federal Question
(US. Go~~ernment Na a Party)

~2

U.S. Govermnent
Defendant

O 4

Diversity
(Indicate Crlizenshrp ofParties in Irern III)

111. 1;111G1~.lrtiltilY V2' YK11Vl;lYALYAlC11L~.J(Placean"X"rnOne BoxforYlaintiQ
(For Diyersiry Cares On[y)
and One Box,for Defendant)
PTF
DEF
PTF
DEF
Citizen of This State
O 1 Incor}~orated or Principal Place
O 4
O 4
O 1
of Business in This State
Citizen of?,nother State

O 2

O 2

Citizen or Subject of a
Foreign Cotuitry

O 3

O

3

Iuco~porated and Principal Place
of Business In Another State

O 5

O 5

Foreign Nation

O G

O 6

IV. NATURR nF SUIT rnr„~~ ~„ ~~x~~ ;,, n„~ x„r r~~,n:i
CONTRACT
O
O
O
O
O
O
O

O
O
O
O
O

O
O
O
O
O
O
O
O
O
O

O
O
O
O
O
O

rORFE[TURE/PENALTY

TORTS

l 19 Insurance
120 Marine
130 Miller Act
140 Negotiable Instnmieut
150 Recovery of Overpayment
& Enforcement of Judgment
I51 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
2I0 Land Condenu~ation
220 Foreclosure
230 Rent Lease &Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

O
O
O
O
O
O
O

PERSONAL INJURY
3I0 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers'
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
3G2 Personal Injury Medical Mal ractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

PERSONAL INJURY
O 365 Personal Injury Product Liability
O 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
O 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
O 370 Other Fraud
O 371 TruW in Lending
O 380 Other Persona(
Property Damage
O 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
O 463 Alien Detainee
O 510 Molions to Vacate
Sentence
O 530 General
O 535 Death Penalty
Other:
O 540 MAndamus &Other
O 550 Civil Rights
O 555 Prison Condition
D 560 Civil Detainee Conditions of
Confinement

O 625 Drug Related Seizure
of Property 21 USC 881
O 690 Other

BANKRUPTCY

PROPERTY
O 820 Copyrights
O 830 Patent
O 840 Trademark

O
O
O
O
O
O

[,ABOR
710 Pair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act

OTHER STATUTES

O 422 Appeal 28 USC 158
O 423 Withdrawal
28 USC 157

❑
O
O
O
O

O
O
O
O
~ k:'` O
O
O

SOCIAL SECURITY
861 HIA (1395f~
862 Black Lung(923)
863 D[WC/DIW W (405(g))
864 SSID Title XV]
865 RSI(405(8))

FEDERAL TAX SUITS
O 870 Taxes(U.S. Plaintiff
or Defendant)
O 871 IRS—Third Party
26 USC 7609

O
O
O
O
O
O
O
O
~

O

375 False Claims Act
400 State Reapportiomnent
410 Mtihust
430 Baiilcs and Ba~ilcing
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Conswner Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 A~icultural Acts
893 Envirocunental Matters
895 Freedom of Information
Act
896 Arbitration
899 Adininisuative Procedure
AcUReview or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

IMMIGRATION
O d62 Natwalization Application
~ 465 Other Immigration
Actions

V. ORIGIN (Place an "X” in One Box Only)
~$(1

Original
Proceeding

Cl 2 Removed from
State Court

O 3

Remanded from
Appellate Court

O 4 Reinstated or
Reopened

O 5 Transferred from
Another District
(.specifi')

Q 6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (no ~rotcirejurisriictionrilsmtutes unless divers:r~J:

VI. CAUSE OF ACTION

APA,5 U.S.C. 701; Coastal Zone M nit Act, 15 U.S.C. 1451; MMPA, 16 U.S.C. 1361 ; NE

42 U.S.C.

Brief description of cause:

ect off NJ's coast
Defendants violated numerous environmental statutes in proceeding with a seismic testin
CHECK YES only if demanded in complaint:
DEMAND $
REQUESTED IN
❑ CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.
~(No
JURY DEMAND:
O Yes
COMPLAINT:
VIII. RELATED CASES)
(•See ins~ruclioiss):
IF ANY
DOCKET NUMBER
JUDGE

VII.

DATE

GNATURE OF ATTORNEY OF RECORD

06/05/2015
RECEIPT #

AMOUNT

/

/APPLYING IFP

JUDGE

MAG. JUDGE

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 2 of 29 PageID: 291215

JOHN J. HOFFMAN
ACTING ATTORNEY GENERAL OF NEW JERSEY
R.J. Hughes Justice Complex
25 Market Street, P.O. Box 093
Trenton, New Jersey 08625
Attorney for Plaintiffs,
State of New Jersey, Department
Of Environmental Protection and
Bob Martin, Commissioner of the
Department of Environmental Protection
By:

David C. Apy
Assistant Attorney General
(609) 292-8567

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION, and
BOB MARTIN, COMMISSIONER,
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiffs,
vs.
NATIONAL SCIENCE FOUNDATION,
FRANCE CORDOVA, as director
of the National Science Foundation,
NATIONAL OCEANIC AND ATMOSPHERIC
ADMINSTRATION, OFFICE FOR COASTAL
MANAGEMENT, JEFFREY PAYNE,
as Acting Director of the Office for
Coastal Management, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINSTRATION, NATIONAL
MARINE FISHERIES SERVICE,
EILEEN SOBECK,as Assistant
Administrator for Fisheries,
and LAMONT-DOHERTY EARTH OBSERVATORY,
Defendants.

1

VERIFIED COMPLAINT FOR
INJUNCTIVE AND
DECLARATORY RELIEF

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 3 of 29 PageID: 291216

Plaintiffs State of New Jersey, Department of Environmental
Protection

("NJDEP"),

"Plaintiffs"

or

and

Commissioner

"NJDEP")

by

Acting Attorney General of

their

Bob

attorney,

Martin
John

J.

(together
Hoffman,

New Jersey, allege as

the State of

follows:
NATURE OF THE ACTION

Plaintiffs bring this action on behalf of the State of

1.

New Jersey and its citizens, in response to Defendants' repeated
disregard

for

the

State

resources

and

for

the

applicable federal law.

of

New

State

Jersey's

of

New

coastal

Jersey's

uses

rights

and

under

Defendants seek, for the second year in

a row, to perform a Marine Seismic Survey Research Project ("the
Project"), where Rutgers received federal funding and is the
Principal Investigator, off the coast of New Jersey during the
peak of the State's fishing season.

The Project will shoot

powerful sonic blasts every five seconds for thirty days into
prime

fishing

areas

and

waters

used

threatened and endangered species.

by

marine

mammals

and

The full extent of impacts

from seismic testing are still being learned, but what is known
is the impacts will be felt far outside of the study area and
are

likely

to

include

reduced

catch

rates for

New

Jersey's

commercial and recreational fishing industries, and harassment
of marine mammals.

2

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 4 of 29 PageID: 291217

2.

To prevent these harms, NJDEP attempted to exercise its

rights as a coastal state under the Coastal Zone Management Act
("CZMA"),

15

objections

U.S.C.

~

1451

the

throughout

et

seq.,

federal

in

addition

environmental

to

raising

compliance

However, NJDEP's well-founded concerns were rejected

process.

by Defendants.
In

3.

deciding

to

proceed

with

the

Project,

Defendants

improperly decided to override New Jersey's objections raised
under the CZMA.

Defendants also violated multiple aspects of

the required environmental compliance process, including the
National Environmental Policy Act ("NEPA"), 42 U.S.C. ~ 4321 et
seq., and the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §
1361

et

seq..

For

the

second

year

in

a

row,

Defendants'

collective decisions have allowed the Project to proceed in a
manner that is arbitrary, capricious, in violation of procedure,
and otherwise not in accordance with law, all in violation of
the

Administrative

Procedure

Act

("APA"),

5

U.S.C.

§ 701 et

seq..
4.

Plaintiffs seek declaratory and injunctive relief to end

Defendants' repeated disregard for the State's coastal uses and
resources.
JURISDICTION
5.

This Court holds jurisdiction over the subject matter of

this action pursuant to 28 U.S.C: § 1331 (federal question),
3

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 5 of 29 PageID: 291218

because Plaintiffs allege violations of federal law.
is

authorized

to

provide

declaratory

and

The Court

injunctive

relief

pursuant to 28 U.S.C. ~~ 2201-2202.
VENUE
6.

Venue

over

this

action

is

proper

in

this

District

pursuant to 28 U.S.C. ~ 1391(e)(3)., which establishes venue in
an action against an officer or agency of the United States in
any judicial district in which one of the plaintiffs resides, if
no

real

property

is

involved

in

the

action.

Venue

is

additionally appropriate in this District pursuant to 5 U.S.C. §
703 and because the regulatory decisions sought to be reviewed
will likely adversely affect the residents and natural wildlife
resources that use the State of New Jersey's coastal waters.
PARTIES
7.

Plaintiff

New

Jersey

Department

Protection is a principal State agency of

of

Environmental

the State of New

Jersey, with offices located at 401 East State Street, Trenton,
New

Jersey

08625,

and

is

responsible

for

the

environmental

protection of the waters, lands, air, wildlife, and plant life
of and in the State of New Jersey, including waters, lands, air,
wildlife, and plant life that may be adversely impacted by the
Project.

The State of New Jersey holds a sovereign interest in

all of the natural resources within its territory that will be
affected by Defendants' Project.
0

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 6 of 29 PageID: 291219

8.

Plaintiff

Jersey

Department

Bob
of

Martin

is

the

Commissioner

Environmental

Protection,

of

the

with

New

offices

located at 401 East State Street, Trenton, New Jersey 08625, and
is

responsible

for

the

implementation

of

New

Jersey's

environmental protection laws, regulations, and standards that
pertain to the Project.
9.

Defendant

National

Science

Foundation

("NSF"),

with

offices located at 4201 Wilson Boulevard, Arlington, VA 22230,
is

responsible

for

administering

the

funding

for

various

federally supported research projects, including this Project.
NSF

is

also

the

owner

of

the

R/V

Marcus

G.

Langseth,

the

research vessel being used to conduct the Project.
10.

Defendant

France

A.

Cordova

is

Director

the

of

the

National Science Foundation and oversees all NSF activities,
from the development of policy priorities to the establishment
of administrative and management guidelines.
11.

Defendant

National

Oceanic

and

Atmospheric

Administration ("NOAA"), Office for Coastal Management ("OCM"),
with offir_es located at 1305 East-West Highway, Silver Spring,.
MD

20910,

is responsible for administering

the

Coastal Zone

Management Act's federal consistency program, reviewing state
requests
generally

to

review

assisting

federally-assisted
states

in

and

for

preserving,

and

projects,

managing,

developing their marine and coastal resources.

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 7 of 29 PageID: 291220

12.

Defendant Jeffrey Payne is the Acting Director of OCM

within NOAA, and is responsible for deciding whether states are
granted an opportunity to review federally assisted projects for
consistency with their coastal management program.
13.

Defendant National Marine

Fisheries Service

("NMFS"),

with offices located at 1315 East-West Highway Silver Spring, MD
20910, is responsible for the stewardship of the nation's ocean
resources and their habitats.

NMFS is charged with implementing

the Marine Mammal Protection Act through, among other things,
issuing Incidental Harrassment Authorizations.
14.
for

Defendant Eileen Sobeck is the Assistant Administrator
Fisheries

at

NMFS.

She

oversees

the

management

and

conservation of marine fisheries and the protection of marine
mammals, sea turtles, and coastal fisheries habitat within the
U.S. exclusive economic zone.
15.

Defendant Lamont-Doherty Earth Observatory ("LDEO"), with

offices located at P.O. Box 1000, 61 Route 9W, Palisades, NY
10964, is a component of the Earth Institute within Columbia
University.

Defendant LDEO operates the R/V Marcus G. Langseth

which is being used to conduct the Project.

D

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 8 of 29 PageID: 291221

STATUTORY BACKGROUND
The Coastal Zone Management Act
The Coastal Zone Management Act ("CZMA"), 16 U.S.C. §

16.
1451

et

was

seq.,

enacted,

among

other

reasons,

to

ensure

coordination and consistency between federal, state, and local
actions in the coastal zone; to encourage states to exercise
their full authority over the lands and waters in the coastal
zone;

and

in

interests

significant

have

substantial

and

protection,

management,

and

states

that

recognize

to

the

development of the resources of the coastal zone that can only
be served by the active participation of coastal states in all
federal programs affecting such resources.

16 U.S.C. ~ 1451.

Pursuant to NOAA's regulations implementing the CZMA, a

17.

state is entitled to request to review activities occurring
outside

of

its

coastal

if

zone,

the

State

the

determines

activity will have reasonably foreseeable coastal effects in
that

state's

coastal

15

zone.

C.F.R.

930.34

(Subpart

C -

federal agency activity), 15 C.F.R. 930.54 (Subpart D - federal
license

or

permit),

15

C.F.R.

930.98

(Subpart

F

-

federal

assistance to a state or local government).
18.

Federal agencies are required to issue a Consistency

Determination for a federal agency activity which will affect a
coastal use or resource.
the

Consitency

15 C.F.R. 930.36.
was. prepared

Determination
7

The state for which
has

the

right

to

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 9 of 29 PageID: 291222

object

to

Consistency Determination,

the

in

which

case

the

federal aganecy can only proceed with the activity if the agency
overrides

objection

the

determining

by

activity

the

is

consistent to the maximum extent practicable with the state's
coastal management program.

15 C.F.R. 930.43

The National Environmental Policy Act
The National Environmental Policy Act ("NEPA"), 42 U.S.C.

19.

~ 4321 et seq., was enacted to encourage harmony between humans
and

the

environment,

eliminate

damage

to

to

promote

efforts

environment,

the

that
to

and

prevent
enrich

or
the

understanding of the ecological systems and natural resources
important to the Nation.

42 U.S.C. ~ 4321.

NEPA requires all

federal agencies, in every proposal for major federal action, to
prepare and consider a detailed Environmental Impact Statement
("EIS") that includes the proposed action's adverse effects that
cannot be avoided, alternatives to the action, and the action's
long term effects.
20.

42 U.S.C. § 4331.

The implementation of NEPA is overseen by the Council on

Environmental Quality.
C.F.R.

1507.3,

Pursuant to 40

See 40 C.F.R. Part 1500.

federal

agencies

must

procedures

adopt

to

Further, 40 C.F.R. 1501.3 allows

implement NEPA's requirements.

individual agencies~to adopt procedures setting forth when an
individual
Assessment.

agency

is

required

Environmental

to

prepare

Assessments

0

are

an

Environmental

concise

public

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 10 of 29 PageID: 291223

documents

which

assist

federal

in

agencies

the

threshold

determination of whether a more comprehensive EIS is necessary.
40

C.F.R.

1508.9.

Environmental

If

Assessment

a federal
that

an

agency
EIS

is

concludes
not

from

its

necessary,

the

agency must issue a "Finding of No Significant Impact" ("FNSI").
40 C.F.R. 1508.13.
NSF's regulations for complying with NEPA are located at

21.

45 C.F.R. Part 640.

Pursuant to 45 C.F.R. 640.4(e), when an

Environmental Assessment prepared by NSF determines that an EIS
is not required, the corresponding FNSI must be made available
for a 30-day public review period before any action is taken, if
the proposed action is one that normally requires an EIS or is
closely similar to an action normally requiring an EIS.
The Marine Mammal Protection Act
The Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §

22.

1361 et seq., was enacted because Congress determined "marine
should be protected and encouraged to develop to

mammals
the

greatest

extent

feasible

and

that

the

primary

objective of their management should be to maintain the health
and stability of the marine ecosystem."

16 U.S.C. § 1361.

To

effectuate this goal, Congress imposed, with limited exceptions,
a moratorium on the "taking" of marine mammals.
23.

The MMPA also created the Marine Mammal Commission, which

serves

as

an

independent

agency
~]

of

the

U.S.

Government

to

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 11 of 29 PageID: 291224

provide independent oversight of the marine mammal conservation
policies implemented by federal regulatory agencies, including
NMFS.
24.

16 U.S.C. ~ 1401.
The MMPA is implemented by NMFS, which is authorized to

issue Incidental Harrassment Authorizations for the "take" of
marine mammals in limited circumstances.

16 U.S.C.

~ 1361.

Congress expressly directed NMFS to make its take decisions "in
consultation" with the Marine Mammal Commission. 16 U.S.C. ~
1371.
The Administrative Procedure Act
25.

The Administrative Procedure Act ("APA"), 5 U.S.C. ~ 701

et seq., provides a right of review for any person suffering
legal

wrong

because

of

agency

action.

5

U.S.C.

§

702.

Reviewing courts are authorized to hold unlawful and set aside
agency action, findings, and conclusions found to be arbitrary,
capricious, without observance of procedure required by law, or
otherwise not in accordance with law.

5 U.S.C. § 706.

FACTS
New Jersey's Management of its Coastal Zone
26.

The CZMA and its implementing regulations set forth the

process by which NOA.A reviews and approves a state's coastal
management program.

16 U.S.C. § 1455(d)

New Jersey's coastal

program was approved by NOAA in 1978 and the program reflects,
among other things, New Jersey's goal of managing its coastal
10

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 12 of 29 PageID: 291225

zone to protect its natural resources and support commercial,
recreational, and aesthetic uses.
27.

The

Coastal

Management

Zone

within

Office

NJDEP

administers the planning and enhancement aspects of New Jersey's
federally approved Coastal Zone Management Program.
28.

As

set

forth

in

7:7E-1.1(c),

N.J.A.C.

Jersey's

New

Coastal Zone Management Program goals and supplemental policies
include:
management

(1)
of

healthy
ocean

coastal

and

ecosystems;

estuarine

resources;

(2)

effective

(3)

meaningful

public access to and use of tidal waterways and their shores;
(4) sustained and revitalized water-dependent uses; (5) coastal
open

space;

(6)

safe,

healthy

and

coastal

well-planned

communities and regions; (7)coordinated coastal decision-making,
comprehensive planning and research; and (8) coordinated public
education and outreach.
29.

To

effectuate

N.J.A.C. 7:7E-1.1.

these

goals,

New

Jersey's

Coastal Zone

Management Program contains enforceable policies that protect
prime

fishing

fisheries,

areas,

N.J.A.C.

N.J.A.C.

7:7E-8.2,

7:7E-3.4,
and

marine

endangered

or

fish

and

threatened

wildlife or plant species habitat, N.J.A.C. 7:7E-3..38.
The Project
30.

For the second consecutive year, Defendant Lamont-Doherty

seeks to use the R/V Marcus Langseth, a research vessel owned by
Defendant NSF, to conduct the Project.
11

The Project is a high-

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 13 of 29 PageID: 291226

energy 3-D seismic study in the Atlantic Ocean off the coast of
New

Jersey.

The

study

area

is

an

approximately

12

by

50

kilometer (km) rectangular area off the coast of New Jersey.
31.

In 2014, the Project was cancelled due to mechanical

problems with the research vessel.
32.

The Project will collect data using a subarray of four
700 in3.

airguns with a total discharge volume of

The airguns

are a mixture of Bolt 1500 LL and Bolt 1900 LLX airguns ranging
in size from 40 to 220 in3, with a firing pressure of 1950 pounds
per square inch.

The airguns will be fired every 5.4 seconds

for approximately thirty days, and when fired will emit a source
level from 246 to 253 decibels.
33.
to

During the Project, Defendant Lamont-Doherty also plans
utilize

a

Kongsberg

EM

122

multibeam

echosounder

simultaneously during airgun operations to map the ocean floor.
The echosounder operates between 10.5 and 13.0 kilohertz, with a
maximum source level of 242 decibels.
34.

The Project also will involve use a sub-bottom profiler,

which will emit pings with a pulse interval of one second, with
a maximum radiated power of 204 decibels.
35.

Finally, the Project will use an acoustic Doppler current

profiler with an acoustic source level over 200 decibels.

12

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 14 of 29 PageID: 291227

Status of the Project
36.

On or about June 1, 2015, the R/V Marcus G. Langseth left

New York Harbor and traveled off the coast of New Jersey.

As of

June 4, 2015, the ship is located in or near the survey area
described in the Project description.
NSF's Violation of the CZMA
37.

Federal

determinations

agencies
for

are

Pursuant

to

this

activities

on December

provision,

consistency
which

15 C.F.R. 930.36 (Subpart

affect any coastal use or resource.
C)

develop

agency

federal

proposed

to

required

22,

2014,

NSF

issued to NJDEP a Consistency Determination for the Project,
concluding the Project is consistent with NJDEP's federallyapproved coastal management program.
38.
NSF's

On March 6, 2015, NJDEP exercised its right to object to
Consistency Determination,
As

Determination.
Inconsistency
inconsistent

required

Determination
with

NJDEP's

by issuing
by

15

explained

enforceable

an Inconsistency
930.43,

C.F.R.
why

the

policies

Project
and

the
is

proposed

alternative measures that would improve the Project.
39.

NJDEP's Inconsistency Determination explained that the

Project violates

NJDEP's enforceable

policies prohibiting

or

discouraging adverse impacts to prime fishing areas, N.J.A.C.
7:7E-3.4,

marine

fish

and

fisheries,

13

N.J.A.C.

7:7E-8.2,

and

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 15 of 29 PageID: 291228

endangered

or

threatened

wildlife

or

plant

species

habitat,

N.J.A.C. 7:7E-3.38.
40.

To

make

the

Project

more

consistent

with

NJDEP's

enforceable policies, NJDEP proposed, among other things, that
the Project be rescheduled to take place in September or October
to reduce impacts to the State's coastal uses and resources.
NJDEP also objected to the lack of data relied upon by NSF in
making its Consistency Determination, and proposed incorporating
a study into the Project to better assess the impacts of seismic
testing.
41.

Pursuant to the coastal zone management regulations, NSF

was not authorized to conduct the Project unless it made a final
determination

that

the

Project

was

consistent

with

NJDEP's

enforceable coastal policies, despite NJDEP's objections.

On

May 26, 2015, just five days before the Project's proposed start
date, NSF informed NJDEP that it "has decided to authorize the
Proposed Activity to move forward over NJDEP's `objection' under
CZMA," and attached a Final Consistency Determination.
42.

NSF's Final Consistency Determination concluded that "the

Proposed

Activity

practicable"

with

is
the

consistent
enforceable

Coastal Management Program.

to

the

policies

maximum
of

New

extent
Jersey's

NSF reached that conclusion through

a flawed analysis of New Jersey's Coastal Management Program.

14

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 16 of 29 PageID: 291229

For example, NSF dismissed NJDEP's reference to N.J.A.C.

43.

7:7E-8.2, in part, because NSF found "[t]he enforceable policy
at

described

N.J.A.C.

7:7E-8.2

Fish

Marine

Fisheries

and

`discourages' but does not prohibit activities that adversely
impact the natural functioning of~ marine fish."

However, NSF

neglected the fact that "discouraged" is defined in New Jersey's
Coastal Management Program to mean the Department, exercising
its discretion, "may permit the use provided that mitigating or
compensating measures can be taken so that there is a net gain
in quality and quantity of the coastal resource of concern."
N.J.A.C. 7:7E-1.8.

In other words, NSF was not authorized to

disregard N.J.A.C. 7:7E-8.2 unless NJDEP authorized the activity
based on a finding the Project would be in the public interest
No such finding was

and mitigation would cause a net benefit.
made

NJDEP,

by

and

consequently

NSF's

Final

Consistency

Determination is legally flawed.
44.

NSF

also

disregarded

improperly

NJDEP's

proposed

A primary suggestion by NJDEP

alternatives for the Project.

was to reschedule the Project to September or October of this
year (or some year in the future), in order to reduce adverse
impacts to New Jersey's prime fishing areas, marine fish and
fisheries, and endangered or threatened
habitats.
Primary

wildlife species and

NSF rejected this suggestion, in part, because the

Investigators

have

"teaching
15

obligations"

and

the

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 17 of 29 PageID: 291230

science team conducting the Project includes students.

NSF also

cited scheduling challenges for .the research vessel.
considerations

have

bearing

no

on

whether

the

These

Project

is

consistent with NJDEP's Coastal Management Program, and it was

therefore

improper for

NSF to

rely upon

them

in overriding

NJDEP's objection to the Project.
OCM's Non-Compliance with the CZMA
NOA.A's regulations implementing the CZMA instruct states

45.

to monitor proposed activities outside of the State's coastal
zone involving federal permitting or federal assistance.
C.F.R. 930.54

(Subpart D - federal permit); 15 C.F.R. 930.98

(Subpart F - federal assistance).
either

activity

effects,

the

15

have

will
can

state

If a state determines that

reasonably

request ~to

foreseeable

review

coastal

activity

the

for

consistency with its management program by providing notice to
OCM and other stakeholders.
46.

On

April

21,

2015,

Ibid.
NJDEP

submitted

to

OCM

and

other

requisite stakeholders its request to review the Project under

Subparts D and F for consistency with its coastal management
program.
On April 30, 2015, OCM sent NJDEP a letter denying its

47.
request

to

review

the

Project

under

Subparts

D

and

F.

OCM

failed to address NJDEP's determination that the Project will

have

reasonably foreseeable effects
16

in

New

Jersey's

coastal

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 18 of 29 PageID: 291231

zone.

Instead, OCM denied NJDEP's request because it found the

Project was properly categorized as a Subpart C activity.
48.

categorization

OCM's

of

the

Project

as

a

Subpart

C

activity is in direct conflict with its own 2014 determination
that the Project is a Subpart F activity.
December
Subpart

22,

D

2014

the

to

because

activity
for

required

letter

NJDEP,
a

activity.

Moreover, NSF, in a

stated

federal
Thus,

the

Project is a
or

license
it

was

permit

is

inappropriate,

arbitrary and capricious for OCM to determine the Project is a
Subpart C activity.
OCM's denial of NJDEP's request to review the Project

49.

under Subparts D and F was contrary to OCM's own regulations,
its determination last year, and the determination of its sister
As a result of OCM's improper denial, NJDEP was

agency, NSF.

deprived of the ability to review the Project for consistency
with its coastal management program.

If NJDEP had been granted

the opportunity to review the Project under Subparts D and F, it
would have had an additional opportunity to review the Project
and

raise

Compare

15

its

objections

C.F.R.

930.43

before
with

15

OCM,

rather

C.F.R.

than

930.54

just

and

NSF.

930.98.

Consequently, OCM's improper denial frustrated the CZMA's goal
of allowing NJDEP to protect the coastal uses and resources
within

its

coastal

zone

by

decision-making process.
17

participating

in

the

federal

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 19 of 29 PageID: 291232

NSF's Non-Compliance with NEPA
NEPA requires federal agencies to prepare an EIS for

50.
major

federal

environment.

actions
In

Environmental

that

2011,

June

Impact

significantly

may

Statement

NSF

a

issued

("PEIS")

for

the

affect

Programmatic

Marine

Seismic

Research Funded by the National Science Foundation.
On December 19, 2014, NSF issued a Draft Environmental

51.

Assessment

for

the

Project

because

of

numerous

differences

between the Project and the seismic testing considered in the
Namely, the Project will: (1) use a different energy

PEIS.

source level and configuration; and (2) the Project will occur
only in the shelf area, whereas the Draft Analysis Areas in the
PSIS considered projects on the shelf and slope.
On May 26, 2015, NSF issued a final Amended Environmental

52.

Assessment and a FNSI.
that

significant

no

implementing

the

The FNSI included NSF's determination

environmental

proposed

action

impacts
and,

will

therefore,

result
no

from

further

study under NEPA is required.
53.

NSF failed to consider the scale of the environmental

impacts that will result from the Project, and therefore erred
in relying on the PEIS in deciding not to prepare a full EIS.
Moreover,

NSF

deviated

from

the

PSIS

by failing

to

conduct

mitigation for commercially important fisheries, which was an
express

consideration

of

the

PEIS.

Finally,

NSF failed

to

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 20 of 29 PageID: 291233

comply with its own regulations, because it issued a FNSI for a
proposed action that normally requires an EIS and failed to make
the FNSI available for a 30-day period of public review and
45 C.F.R. 640.4(e).

comment.

NMFS' Non-Compliance with the N~IPA
On March 17, 2015, NMFS issued a proposed Incidental

54.

Harassment Authorization ("IHA") for the take of marine mammals
incidental to the Project.
The proposed IHA contemplated authorizing the take of 32

55.

species of marine mammals.

The proposal included a Table of the

estimated possible number of takes for each species.

The public

was given 30 days to submit comments on the proposed IHA.
On May 14, 2015, NMFS published Notice of its Issuance of

56.

NMFS

a Final IHA for the take of 32 species of marine mammals.

noted that it received comments on the proposal from over 35
interested parties, including NJDEP.
During

57.

public

the

comment

period,

the

Marine

Mammal

Commission submitted comments identifying that Lamont-Doherty
and

NMFS

number

used

of

Specifically,

an

methodology for

erroneous

takes
NMFS

that
used

would
a

occur

"snapshot

for

calculating
each

approach

the

species.
for

take

estimation" and "d[id] not account for the survey occurring over
a 30 day period."

19

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 21 of 29 PageID: 291234

In response to the Marine Mammal Commission's comments,

58.

NMFS recalculated the estimated number of takes for each of the
32 species.
in

Using the revised methodology, the estimated takes

Final

the

IHA

drastically

increased

exponentially — from the proposed IHA.

—

in

many

cases

For example:

• authorized takes for bottlenose dolphins increased from 411
to 12,532 — or from 3.6o to 16.20 of the species/stock;
• authorized takes from Atlantic spotted dolphin increased
from 133 to 4,067 — or from 0.3o to 18.20 of the
species/stock;
~

59.

authorized takes of Risso's dolphin increased from 50 to
1,532 — or from 0.3a to 16.80 of the species/stock.
Because

of

the

gravity

of

NMFS'

miscalculation,

the

Marine Mammal Commission expressed concern that the erroneous
calculations deprived the public, including Plaintiffs, of a
meaningful opportunity to comment on the impacts of the Project.
However,

NMFS

arbitrarily

rejected

the

Commission's

recommendation to re-notice the IHA for public comment.

NMFS

improperly concluded that "the changes to the methodology and
resulting estimates do not have any substantial effect on our .
.

analyses and determinations[.]"
CLAIMS FOR RELIEF
First Count: NSF's Violation of the CZMA

60.

Plaintiffs hereby incorporate and reassert all of the

foregoing paragraphs of the Complaint.

20

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 22 of 29 PageID: 291235

61.

Defendant NSF issued a Consistency Determination for the

Project, as contemplated by 15 C.F.R. 930.36.
62.

Plaintiffs responded by issuing a timely Inconsistency

Determination,
Marine

State's

based
Fish

on
and

foreseeable
Fisheries,

adverse
Prime

to

the

Areas,

and

impacts

Fishing

Endangered or Threatened Wildlife or Plant Species and Habitats.
15 C.F.R. 930.43.
63.

Defendant NSF nonetheless decided to proceed with the

Project, pursuant to 15 C.F.R. 930.43(d) and (e), because it
erroneously determined the Project was consistent to the maximum
extent practicable with the enforceable policies of New Jersey's
Coastal Management Program.
64.

The coastal zone management regulations instruct that a

federal agency "shall not proceed with the activity over a State
agency's

objection"

activity

is

program.

15 C.F.R. 930.43.

65.

unless

consistent

the

with

federal

the

agency

State's

concludes

coastal

the

management

Defendants' decision to proceed with the Project was in

violation of the Administrative Procedure Act, 5 U.S.C. ~ 706,
because it was arbitrary and not in accordance with law.
Second Count: OCM's Violation of the CZMA
66.

Plaintiffs hereby incorporate and reassert all of the

foregoing paragraphs of the Complaint.

21

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 23 of 29 PageID: 291236

67.

State

agencies

hold

the

right

request

to

review

of

activities involving federal permits and federal assistance, if
the activity will have reasonably foreseeable coastal effects.
15 C.F.R. 930.54 (Subpart D), 930.98 (Subpart F).
68.

Plaintiffs

attempted

to

their

exercise

right

by

requesting to review the Project under Subparts D and F, because
NMFS

issued

an

IHA

Lamont-Doherty

to

and

Rutgers

received

federal funding from NSF.
69.

Defendant OCM improperly denied NJDEP's request because

it determined the Project was not a federally-assisted activity,
despite the fact that NSF provided funding to Rutgers and last
year OCM considered the same Project to be a federally-assisted
activity.
70.

Defendant OCM also improperly denied Plaintiff's request

because it determined the Project did not involve a federal
license or permit, despite the fact that NMFS issued an IHA and
NSF considered the Project to be an activity requiring a federal
permit.
71.

Defendant

OCM's

decision

to

deny

NJDEP's

request

to

review the Project under Subparts D and F was made in violation
of the Administrative Procedure Act, 5 U.S.C. § 706, because it
was arbitrary and capricious and not in accordance with law or
the agency's past practice.

22

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 24 of 29 PageID: 291237

72.

Third Count: NSF's Violation of NEPA
Plaintiffs hereby incorporate and reassert the foregoing

paragraphs of the Complaint.
73.

Defendant NSF previously determined that seismic testing

is a major federal action thereby requiring the development of a
PSIS.

Because this Project utilizes a distinct form of seismic

testing not covered by Defendants' prior PEIS, NSF was required
to prepare a full Environmental Impact Statement rather than
just prepare an Environmental Assessment and FNSI.
74.
erred

In addition to failing to .prepare a full EIS, NSF also
in

its

publication

of

the

FNSI

it

ultimately

issued.

Pursuant to NSF's own regulations, because seismic testing is an
activity that normally warrants an EIS, the public (including
NJDEP) should have been given a 30-day period opportunity to
comment on the FNSI.
75.

45 C.F.R. 640.4(e).

NSF's decision to issue a FNSI for the Project without

allowing

a

contrary

to

therefore

30-day

period

NEPA,

NSF's

arbitrary,

of

public

review

implementing

capricious,

and

comment

is

and

is

regulations,

without

observance

of

procedure, and otherwise not in accordance with law in violation
of the Administrative Procedure Act. 5 U.S.C. § 706.
Fourth Count: NMFS' Violation of the NIlKPA
76.

Plaintiffs hereby incorporate and reassert the foregoing

paragraphs of the Complaint.

23

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 25 of 29 PageID: 291238

77.

Section 101(a) of the MMPA creates a moratorium on taking

marine mammals unless an exception applies.
78.

Section 101(a)(5)(D) creates a limited exception for the

incidental
mammals,

taking

if

the

species or stock.

by
take

harassment
will

have

of
a

small

numbers

negligible

of

impact

marine
on

the

However, the Secretary must offer the public

an opportunity to comment on the proposed authorization before
finding that the impact will be negligible.

16 U.S.C. § 1361

(a)(5) (D) (iii).
The Final IHA issued by NMFS authorized exponentially

79.

more takes than the proposed IHA, thereby altering the public's
understanding

of

the

nature

of

the

Project.

The

public,

including NJDEP, never had an opportunity to comment on the
IHA's drastic increase in authorized takes of marine mammals.
Defendant NMFS' failure to provide the public with a

80.

meaningful opportunity to comment on the IHA is in violation of
the MMPA, 16 U.S.C. ~ 1361 (a)(5)(D)(iii), and the APA, 5 U.S.C.
~ 706.
WHEREFORE, Plaintiffs demand as relief:
1)
with

That the Court declare Defendants' decision to proceed
the

Project

to

be

arbitrary,

capricious,

an

abuse

of

discretion, in violation of law and in violation of the CZMA,
NEPA, MMPA, and the APA;

24

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 26 of 29 PageID: 291239

2)

That

the

Consistency

Court

set

Determination

aside

and

Defendant

decision

to

NSF's

override

Final
NJDEP's

objection;
3)

That

the

Court

set

aside

Defendant

OCM's

denial

of

NJDEP's request to review the Project under Subparts D and F of
the coastal management regulations;
4)

That

the

Court

set

aside

Defendant

NMFS'

Incidental

Harassment Authorization;
5)

That the Court set aside Defendant NSF's Finding of No

Significant Impact;
6)

That the Court enter Judgment ordering that, prior to

authorizing or conducting any future seismic testing within 100
miles of New Jersey, Defendants:
a. conduct an area-specific Environmental Impact Statement or,
at a minimum, provide a 30-day comment period after issuing
a FNSI;
b. offer

the

State

a

thorough

opportunity

to

review

the

proposed seismic testing under the appropriate Subpart of
the coastal management regulations for consistency with its
coastal management program;
c. mitigate impacts to fish and marine mammals, including but
not limited to the timing of the testing; and
d. collect data on fish stocks and impacts.

25

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 27 of 29 PageID: 291240

7)

Such

other relief

as

the

Court

deems appropriate

and

just.

Respectfully submitted,

JOHN J. HOFFMAN
Acting Attorney General of New Jersey
By: s/ David Apy
David C. Apy
Assistant Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
(609) 292-8567
David.Apy@lps.state.nj.us
Dated:

June 5, 2015

26

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 28 of 29 PageID: 291241

CERTIFICATION PURSUANT TO L.R. CIV PR. 11.2

JOHN GRAY, by way of certification, states that:
1. I

am

the

Deputy

Chief

of

Staff

within

the

New

Jersey

Department of Environmental Protection.
2. Z have read the Verified Complaint.
3. I certify under penalty of perjury that the foregoing factual
allegations contained in the Verified Complaint are true and
correct.

Executed on: June 4, ?_.01.5

B y ~ —~
cI"
John ~ y
Deputy~~~hief of Staff
New Jer ey Department
o:E Environmental Protection

 Case 3:33-av-00001 Document 10041 Filed 06/05/15 Page 29 of 29 PageID: 291242

ADDITIONAL CERTIFICATION PURSUANT TO L.R. CIV. PR. 11.2
I hereby certify pursuant to L.Civ. Rule 11.2 that, to the
best of my knowledge, this matter is not the subject of any other
action

pending

in

any

court

or

of

any

pending

arbitration

administrative proceeding.

Executed on: June 5, 2015

JOHN J. HOFFMAN
Acting Attorney General of New Jersey
By: s/ David Apy
David C. Apy
Assistant Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625-0093
(609) 292-8567
David.Apy@lps.state.nj.us

or