Memorandum Opinion (Preliminary Injunction Denied) — Ocean City v. Interior (D. Md.)

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U.S. District Court, District of Maryland · No. 1:24-cv-03111-SAG · Doc. 127 · 2025-12-15 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
 
 
* 
MAYOR AND CITY COUNCIL OF 
* 
OCEAN CITY, MARYLAND, et al. 
* 
 
* 
             Plaintiffs, 
 
* 
 
 
*  
Civil Case No.: SAG-24-03111 
 
v. 
* 
 
* 
UNITED STATES DEPARTMENT OF THE * 
INTERIOR, et al. 
* 
 
* 
             Defendants/Cross-Defendants, 
* 
 
 
* 
         and 
* 
 
* 
US WIND, INC. 
* 
 
* 
             Defendant-Intervenor/Cross-Plaintiff. *  
 
 
 
*   *   *   *   *   *   *   *   *   * 
MEMORANDUM OPINION 
 
This case concerns Defendant-Intervenor US Wind, Inc.’s longstanding plan to construct 
an offshore wind project off the Atlantic Coast of Maryland. ECF 32. After the Department of the 
Interior (“DOI”) approved the Construction and Operations Plan (“COP”) for this project, a large 
group of public and private entities (collectively, “Plaintiffs”) challenged the approval in this 
lawsuit against the DOI, the Bureau of Ocean Energy Management (“BOEM”), the National 
Marine Fisheries Service, and representatives of those agencies in their official capacities 
(collectively, “Federal Defendants”). Id. US Wind, which intervened in the lawsuit, has now filed 
a motion for preliminary injunction to enjoin what it perceives as the government’s decision to 
revoke the COP. ECF 92. Both Federal Defendants, ECF 106, and Plaintiffs, ECF 107, opposed 
this motion, and US Wind filed a reply, ECF 121. On December 10, 2025, this Court held a hearing 
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on the motion. ECF 125. For the reasons explained below, US Wind’s motion for preliminary 
injunction will be denied. 
I. 
BACKGROUND 
US Wind holds a lease to construct and operate an offshore wind project off the Atlantic 
Coast of Maryland. ECF 32 ¶ 55. In December, 2024, the DOI formally approved US Wind’s COP 
for this project. Id. ¶ 62. Plaintiffs brought this suit challenging the COP approval on several 
grounds. See generally id.  
Shortly thereafter, President Trump took office and issued an executive memorandum titled 
“Temporary Withdrawal of All Areas on the Outer Continental Shelf From Offshore Wind Leasing 
and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects.” 90 
Fed. Reg. 8363 (Jan. 20, 2025) (the “Presidential Wind Memo”). That memorandum directs the 
Secretary of the Interior to “conduct a comprehensive review of the ecological, economic, and 
environmental necessity of terminating or amending any existing wind energy leases, identifying 
any legal bases for such removal, and submit a report with recommendations to the President.” Id. 
It also prohibits the issuance of new or renewed approvals of wind energy projects, pending a 
review of current wind leasing and permitting practices. Id. A court in the District of Massachusetts 
recently vacated as violative of the Administrative Procedure Act (“APA”) an order issued by the 
Acting Secretary of the Interior implementing the suspension of new and renewed approvals 
pursuant to the Presidential Wind Memo. New York v. Trump, Civ. No. 25-cv-11221-PBS, 2025 
WL 3514301, *18 (D. Mass. Dec. 8, 2025). 
In September, 2025, following actions in this and other cases that US Wind perceived as 
indicating hostility to wind projects generally and an intent to revoke the COP approval for this 
project specifically, US Wind amended its answer to lodge cross claims against Federal 
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Defendants. ECF 77. As pertinent here, US Wind has alleged that the government’s revocation of 
the COP approval violates the APA, the Outer Continental Shelf Lands Act (“OCSLA”), and the 
Due Process Clause of the Fifth Amendment. Id. 
Shortly thereafter, Federal Defendants filed a motion to remand and vacate the COP 
approval, citing BOEM’s intent to reconsider the COP approval pursuant to the Presidential Wind 
Memo. ECF 81. Alongside this motion, Federal Defendants filed a declaration of Adam Suess (the 
“Suess Declaration”). ECF 81-1.  
The following facts are derived from the Suess Declaration. Id. Adam Suess is the acting 
Assistant Secretary for Land and Minerals Management for the DOI, and, as part of that role, he 
oversees BOEM. Id. ¶¶ 1–2. The Acting Solicitor for the DOI has withdrawn a prior Solicitor’s 
opinion interpreting OCSLA and has directed offices within the DOI to reevaluate any action that 
relied on the prior opinion. Id. ¶ 11. Pursuant to that opinion and the Presidential Wind Memo, 
DOI is reviewing the COP approval. Id. ¶ 12. Based in part on its reliance on the prior Solicitor’s 
opinion, Mr. Suess believes that the DOI’s decision to approve the COP did not comply with 
OCSLA. Id. ¶¶ 12–15. Mr. Suess states, “Were the Court to remand and vacate the COP Approval 
decision, the Department would review the COP, and upon completion of any required technical 
and environmental reviews, BOEM would reach a new decision on the COP: to either approve, 
disapprove, or approve with conditions.” Id. ¶ 16. 
This Court denied Federal Defendants’ motion to remand and vacate without prejudice, 
concluding that it needed the administrative record to determine whether remand or vacatur is 
appropriate but not precluding BOEM from conducting an internal reevaluation of the COP 
approval. ECF 118. In response to this motion and the Suess Declaration, US Wind filed the instant 
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motion for preliminary injunction, seeking to enjoin implementation of what it perceives as a 
decision to revoke the COP. ECF 92. 
During the hearing held on the instant motion, US Wind represented that it is not currently 
awaiting any federal approval or response to any filing related to the project. However, it is also 
not currently proceeding with the next steps in developing the project, such as completing the 
Facility Design Report, because of the significant cost of that undertaking and the risk that US 
Wind would lose that investment given the alleged decision to revoke the COP approval. Federal 
Defendants, in turn, represented that DOI has begun reevaluating existing leases pursuant to the 
Presidential Wind Memo but has not yet begun its reevaluation of this project. 
II. 
LEGAL STANDARD 
A preliminary injunction is warranted when the movant demonstrates four elements: (1) 
that the movant is likely to succeed on the merits, (2) that the movant will likely suffer irreparable 
harm in the absence of preliminary relief, (3) that the balance of equities favors preliminary relief, 
and (4) that injunctive relief is in the public interest. League of Women Voters of N.C. v. North 
Carolina, 769 F.3d 224, 236 (4th Cir. 2014). The movant must establish all four elements to 
prevail. Pashby v. Delia, 709 F.3d 307, 320–21 (4th Cir. 2013).  
A preliminary injunction affords “an extraordinary and drastic remedy” prior to trial. See 
Munaf v. Green, 553 U.S. 674, 689–90 (2008); see also MicroStrategy, Inc. v. Motorola, Inc., 245 
F.3d 335, 339 (4th Cir. 2001) (stating that preliminary injunctive relief is an “extraordinary 
remed[y] involving the exercise of very far-reaching power [that is] to be granted only sparingly 
and in limited circumstances”) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 
802, 816 (4th Cir. 1991)). Because preliminary injunctions are intended to preserve the status quo 
during the pendency of litigation, injunctions that “alter rather than preserve the status quo” are 
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particularly disfavored. Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d 197, 216 
n.8 (4th Cir. 2019). Courts should grant such “mandatory” preliminary injunctions only when “the 
applicant’s right to relief [is] indisputably clear.” Id. (quoting Communist Party of Ind. v. 
Whitcomb, 409 U.S. 1235, 1235 (1972)). 
III. DISCUSSION 
US Wind argues that the Suess Declaration, and the motion to remand and vacate filed with 
it, reveal that BOEM has decided to revoke the COP approval. As an initial matter, this Court is 
skeptical that a declaration prepared in the context of litigation, largely phrased in terms of a 
government official’s own personal views, could reflect any decision on behalf of an agency. For 
the purpose of this motion, however, this Court will construe the declaration as reflecting the views 
of BOEM, because it is clear that US Wind has not met its burden of showing that BOEM has 
adopted any final agency action to revoke the COP approval. 
As pertinent here, Federal Defendants and Plaintiffs argue that US Wind has not 
demonstrated likelihood of success on the merits of any of its cross claims because the issues 
involved are not yet ripe. For largely the same reasons, they further contend that US Wind has 
identified no final agency action that could support its APA claims specifically. In the 
administrative context, the ripeness doctrine prevents “courts, through avoidance of premature 
adjudication, from entangling themselves in abstract disagreements over administrative policies, 
and also to protect the agencies from judicial interference until an administrative decision has been 
formalized and its effects felt in a concrete way by the challenging parties.” Abbott Lab’ys v. 
Gardner, 387 U.S. 136, 148–49 (1967). Similarly, the APA provides that only “final agency 
action” is “directly reviewable” by a court. 5 U.S.C. § 704. 
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Both the Supreme Court and the Federal Circuit appear to have viewed questions of 
ripeness and final agency action as coextensive when an agency action is at issue. See FTC v. 
Standard Oil Co., 449 U.S. 232, 239–43 (1980) (analyzing agency action under the ripeness test 
and concluding that the agency action was not final); see also U.S. Ass’n of Importers of Textiles 
& Apparel v. U.S. Dep’t of Commerce, 413 F.3d 1344, 1348–50 (Fed. Cir. 2005) (applying the 
same analysis to determine whether an action constituted “final agency action ripe for review”); 
Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1362–64 (Fed. Cir. 2008) 
(considering both the final agency action and ripeness tests and noting that non-final agency action 
is not ripe for review). Accordingly, this Court will consider both the ripeness and final agency 
action tests together.   
In determining whether a case is ripe, a court must consider both the fitness of the issues 
involved for judicial review and the hardship to the parties from delaying judicial review. Miller 
v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). “A case is fit for judicial decision when the issues 
are purely legal and when the action in controversy is final and not dependent on future 
uncertainties.” Id. A claim is not ripe if it depends upon “contingent future events that may not 
occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 
(1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–581 (1985)). 
Final agency action, in turn, requires that the agency action (1) marks the “‘consummation’ 
of the agency’s decisionmaking process,” rather than “a merely tentative or interlocutory” 
decision, and (2) is “one by which ‘rights or obligations have been determined’ or from which 
‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (first quoting Chi. 
& S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); and then quoting Port of 
Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). A court 
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must conduct a practical, rather than formalistic, review of an agency action to determine whether 
it is final. See Fort Sumter Tours, Inc. v. Andrus, 440 F. Supp. 914, 918 (D.S.C. 1977), aff’d, 564 
F.2d 1119 (4th Cir. 1977) (“[I]t is not the label affixed to the action of the agency, but rather a 
realistic appraisal of the consequences of the action which must govern.”). 
US Wind has failed to satisfy the first prong of both tests because it has pointed to no action 
that marks the “consummation” of a decision-making process, and because future uncertainties 
remain. A “threshold determination that further inquiry is warranted” does not constitute a final 
agency action ripe for review. See Standard Oil, 449 U.S. at 241 (concluding that an agency’s 
complaint averring “reason to believe” that a company had violated a statute was not final agency 
action because it was not a definitive statement of position and served only to initiate further 
investigation); see also Tokyo Kikai Seisakusho, 529 F.3d at 1363–64 (citing Standard Oil and 
concluding that an agency’s stated intent to reopen review on an issue did not constitute final 
agency action because it did not mark the consummation of a decision-making process). The Suess 
Declaration states an intent to reexamine the COP, or a “threshold determination that further 
inquiry is warranted.” Furthermore, although it suggests that the analysis underlying the COP 
approval was flawed, it expresses no view of the ultimate legality of the COP. Rather, it states an 
intent to further examine that question. ECF 81-1 ¶ 16. 
The facts here closely resemble those in Nat’l Treasury Emps. Union v. Vought, 149 F.4th 
762 (D.C. Cir. 2025). That case involved actions from which plaintiffs had inferred that interim 
agency leadership had determined to shut down the Consumer Financial Protection Bureau, a 
purported final agency action. Id. Specifically, interim agency leadership had closed agency 
headquarters, cancelled several contracts, terminated many employees, and paused most agency 
activities while they were evaluated for “consistency with the goals of the Administration.” Id. at 
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771–72. The court concluded that the challenge to the purported agency shutdown was not yet 
ripe. Id. at 785. The court reasoned that even if the interim leadership had made “an abstract 
decision” to shut down the agency, that decision was not final because agency consideration 
remained ongoing and there remained opportunities to change course before the decision resulted 
in the denial of any agency service. Id. at 786. More specifically, the court determined that an 
agency-wide email from interim leadership directing employees to cease all work without prior 
approval did not constitute final agency action because it did not mark the consummation of any 
decision-making process or definitively decide anything. Id. at 781–82. Rather, it reflected a new 
administration’s attempt to assess agency activities. Id. at 781. 
As in Vought, the Suess Declaration reflects a new administration’s clear intent to reassess 
the prior action of an agency. US Wind has understandably inferred from the Suess Declaration 
(and the multitude of indications from this Administration of its hostility to wind energy projects 
generally) that BOEM has already decided that it will revoke the COP. But no such decision has 
yet been made final. Even if the Suess Declaration reflects “an abstract decision” to revoke the 
COP, as in Vought, agency consideration remains ongoing, and there remain opportunities for 
BOEM to depart from that inferred abstract decision before any decision resulting in the denial of 
an agency service, such as an approval necessary to continue development, is made. Accordingly, 
US Wind’s claims are not ripe because they depend upon “contingent future events that may not 
occur as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300. 
Furthermore, US Wind has failed to satisfy the second prong of both the ripeness and final 
agency action tests because it has identified no action from which “legal consequences will flow” 
or that could support a conclusion that US Wind faces a legally cognizable hardship. Regarding 
the hardship prong, the Supreme Court in Abbott Laboratories v. Gardner recognized a significant 
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cost in having to choose between complying with an agency decision or facing civil or criminal 
liability. 387 U.S. at 152–53. In contrast, “any business uncertainty associated with awaiting a 
final decision from an agency is different in kind and legal effect from the hardship identified 
in Abbott Laboratories and insufficient to turn a threshold agency decision into a final agency 
action ripe for review.” U.S. Ass’n of Importers of Textiles & Apparel, 413 F.3d at 1350 (rejecting 
argument that actions “based on the businesses’ perceived uncertainty concerning whether, when, 
and to what extent import relief might be imposed in the future, but not on any legally binding 
requirement presently imposed” constituted hardship). 
Here, even if the Suess Declaration could be interpreted as reasonably reflecting a decision 
to revoke the COP in the future, that decision has not yet had any legal effect. Instead, the approved 
COP remains in effect, so unlike in Abbott Laboratories, no law would impose civil or criminal 
liability on US Wind if it continued to develop the project. Although US Wind has understandably 
chosen to cease its activities related to the project because it does not want to risk further loss of 
investment if the COP is eventually revoked, that choice is a strategic business choice, rather than 
one compelled by the threat of legal liability. As understandable and significant as US Wind’s 
“business uncertainty” is under these circumstances, as in U.S. Ass’n of Importers of Textiles & 
Apparel, that uncertainty cannot transform the actions at issue here, which have imposed no 
“legally binding requirement,” into final agency action. 
Vought, again, is instructive. In that case, the court noted that the actions allegedly 
reflecting a decision to shut down the agency did not require the plaintiffs to engage in or refrain 
from any conduct. Vought, 149 F.4th at 787. Furthermore, the court reasoned that “if [the 
plaintiffs’] fears come to pass,” they could protect all of their rights by bringing suit at that 
juncture. Id. Although the court acknowledged that the plaintiffs had to wait to do so until the 
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agency denied them “a discrete service,” it concluded that that delay was “not a hardship,” but 
“par for the course,” even in cases in which “plaintiffs’ lives and livelihoods” depend on prompt 
delivery of services. Id. 
US Wind similarly must wait to see “if [its] fears come to pass” and BOEM makes some 
decision that has some legal consequence, such as the denial of “a discrete service” that US Wind 
needs from BOEM to continue its project or a formal revocation of the COP, which would legally 
preclude US Wind from continuing its project. This Court acknowledges the risk to US Wind in 
further investment to reach that point but, like the Vought Court, perceives nothing unusual about 
such a requirement, even in cases involving dire circumstances. Accordingly, US Wind has failed 
to demonstrate that the purported decision to revoke the COP has subjected it to any legal 
consequences or legally cognizable hardship. 
This Court is not persuaded otherwise by two cases that US Wind emphasized during the 
hearing on its motion. One of them, Fort Sumter Tours, Inc. v. Andrus, involved a National Park 
Service concessioner that, as a “satisfactory concessioner,” was entitled to a statutory preference 
over other bidders in the renewal of its contract. 440 F. Supp. at 916. During negotiations 
concerning the renewal, the Park Service alerted the plaintiff concessioner that it had lost its 
statutory preference and that the Park Service would negotiate a new contract with another bidder. 
Id. at 917. Both the district court and Fourth Circuit concluded that the question of whether the 
Park Service had unlawfully deprived the plaintiff of its statutory preference was ripe for review 
even before the Park Service awarded the contract to the other bidder. Id. at 919; Fort Sumter 
Tours, 564 F.2d at 1123. The Fourth Circuit reasoned that the agency’s interpretation of the 
statutory preference and its application to the plaintiff had “become fixed” such that no further 
agency action regarding the plaintiff was contemplated. Fort Sumter Tours, 564 F.2d at 1123. In 
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contrast, here, no decision to revoke the COP has become fixed. Even if the Suess Declaration 
were interpreted as reflecting a fixed decision by BOEM that the new Solicitor’s opinion applies 
to the COP, thereby fixing a new interpretation of OCSLA as regards the COP, the Suess 
Declaration itself contemplates further agency action to determine the application of that revised 
interpretation to the COP. ECF 81-1 ¶ 16. 
The other case, Clarke v. CFTC, 74 F.4th 627 (5th Cir. 2023), bears even less resemblance 
to this case. In Clarke, the Fifth Circuit concluded that an agency’s withdrawal of a no-action letter 
constituted final agency action. Id. at 639. The court determined that legal consequences flowed 
from the no-action letter, which withdrew the agency’s discretion and therefore bound it. Id. at 
638. The withdrawal of the letter restored that discretion to take action. Id. As a result, the plaintiffs 
had to either change their conduct or risk liability. Id. at 639. As described above, however, no 
decision to date has compelled US Wind to change course or risk legal liability. US Wind may 
continue to develop the project under the approved COP that remains in force. It simply has made 
a business decision not to do so in light of the political headwinds it perceives. 
Accordingly, this Court concludes that US Wind has failed to identify any action by Federal 
Defendants constituting final agency action ripe for review. Because this Court may not review 
non-final agency action until there exists final agency action, US Wind has not satisfied its burden 
of demonstrating likelihood of success on the merits of its claims. Thus, US Wind’s motion for 
preliminary injunction must be denied, without prejudice to its renewal at a later date. 
 
 
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IV. CONCLUSION 
For the reasons stated above, US Wind’s motion for preliminary injunction, ECF 92, will 
be denied. A separate Order follows. 
 
Dated: December 15, 2025 
 
     /s/  
 
 
 
Stephanie A. Gallagher 
 
United States District Judge 
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