Memorandum Opinion (MTD Cross Claims) — Ocean City v. Interior

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U.S. District Court, District of Maryland · No. 1:24-cv-03111-SAG · Doc. 134 · 2026-02-13 · 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 intervened in the lawsuit and then filed cross 
claims against Federal Defendants concerning what it perceives as Federal Defendants’ decision 
to revoke the COP. ECF 77. Federal Defendants have now filed a motion to dismiss those cross 
claims, ECF 105, which US Wind opposed, ECF 122. Federal Defendants then filed a reply. ECF 
129. US Wind also filed a motion for leave to file sur-reply. ECF 130. 
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This Court has reviewed the filings and finds that no hearing is necessary. See Loc. R. 
105.6 (D. Md. 2025). For the reasons explained below, this Court will grant both US Wind’s 
motion for leave to file sur-reply and Federal Defendants’ motion to dismiss. 
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 this case, in August, 2025, Federal Defendants indicated that they would file a motion 
to remand and vacate the COP approval. ECF 74. In response, US Wind amended its answer to 
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lodge cross claims against Federal Defendants. ECF 77. In Counts I–V, US Wind has alleged that 
the perceived 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. In Counts VI–X, US 
Wind further seeks declaratory judgments that the COP and its approval process complied with 
several of the statutes that Plaintiffs, in their complaint, have alleged that the COP and its approval 
process violated. 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 
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appropriate but not precluding BOEM from conducting an internal reevaluation of the COP 
approval. ECF 118.  
US Wind then filed a motion for preliminary injunction, seeking to enjoin implementation 
of what it perceives as a decision to revoke the COP. ECF 92. During a hearing held on that 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. 
In December, 2025, this Court issued a Memorandum Opinion and Order denying the 
preliminary injunction motion. ECF 127, 128. This Court concluded that US Wind had failed to 
identify any final agency action to revoke the COP that would be ripe for this Court’s review. ECF 
127 at 5. Specifically, BOEM’s review of the COP approval remained ongoing, and the approved 
COP remained in effect. Id. at 5–11. None of the parties have indicated that the circumstances have 
materially changed since this Court issued that Memorandum Opinion. 
II. 
LEGAL STANDARDS 
A defendant is permitted to test the legal sufficiency of a complaint by way of a motion to 
dismiss. See, e.g., In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. 
Bd., 822 F.3d 159, 165–66 (4th Cir. 2016). A Rule 12(b)(6) motion constitutes an assertion by a 
defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of 
law “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In reviewing a 
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Rule 12(b)(6) motion, a court “must accept as true all of the factual allegations contained in the 
complaint” and must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” 
E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations 
omitted); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015). 
III. DISCUSSION 
A. Counts I–V 
This Court must grant the motion to dismiss US Wind’s cross claims in Counts I–V 
regarding the alleged decision to revoke the COP. These cross claims fail to contain sufficient 
factual allegations to state a claim. US Wind alleges, “On information and belief, the Federal 
Defendants have made a determination to vacate, rescind or otherwise withdraw or undermine the 
Federal Approvals” and “are illegally seeking to remand, vacate, and otherwise undermine their 
own approvals of actions.” The cross claims provide no further description of Federal Defendants’ 
alleged actions such that this Court cannot adequately assess them. Although US Wind provided 
far greater specificity about these alleged actions in arguing its motion for preliminary injunction, 
as one of the cases cited by US Wind notes, evidence outside the complaint considered in 
adjudicating a preliminary injunction motion may not be considered in adjudicating a motion to 
dismiss. Tohono O’odham Nation v. U.S. Dep’t of the Interior, 138 F.4th 1189, 1202 (9th Cir. 
2025). US Wind has therefore failed to state any of its cross claims. 
US Wind asks that if this Court grants the motion to dismiss based on this deficiency, it 
also grant US Wind leave to amend its cross claims to add more specific factual allegations based 
on events following the filing of its cross claims, such as the filing of Federal Defendants’ motion 
to remand and vacate and the Suess Declaration attached to it. The Fourth Circuit’s policy is “to 
liberally allow amendment.” Galustian v. Peter, 591 F.3d 724, 729 (4th Cir. 2010). Accordingly, 
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leave to amend should be denied only if “prejudice, bad faith, or futility” is present. See Johnson 
v. Oroweat Foods Co., 785 F.2d 503, 509–10 (4th Cir. 1986). A proposed amendment is futile 
when it “is clearly insufficient or frivolous on its face.” Id. at 510. Ultimately, the decision to grant 
leave to amend rests in this Court’s discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). 
This Court will deny US Wind leave to amend its cross claims because, even under the 
Fourth’s Circuit’s liberal standard, amendment would be futile at this point. In adjudicating the 
preliminary injunction motion, this Court considered evidence regarding events following the 
filing of US Wind’s cross claims and concluded that US Wind had failed to identify any final 
agency action ripe for review, and no circumstances appear to have materially changed since that 
time. Thus, for the reasons explained in this Court’s Memorandum Opinion denying the 
preliminary injunction motion, this Court concludes that US Wind cannot point to any action by 
Federal Defendants up to this point that constitutes final agency action ripe for review. Thus, 
amendment at this point would be futile. 
This Court is not persuaded otherwise by any of the arguments raised by US Wind in its 
motion to dismiss briefing that were not addressed in its preliminary injunction motion. First, US 
Wind argues that both its lease and OCLSA and related regulations prohibit the suspension or 
cancellation of its lease and the COP, absent limited circumstances. Federal Defendants’ actions, 
however, have not suspended or canceled US Wind’s lease or the COP. Rather, as explained in 
this Court’s prior Memorandum Opinion, the COP remains in force, and nothing legally precludes 
US Wind from continuing the development of its project. ECF 127 at 8–10. 
US Wind also notes that, shortly after this Court issued its prior Memorandum Opinion, 
the D.C. Circuit granted en banc review and vacated the panel decision in National Treasury 
Employees Union v. Vought, 149 F.4th 762 (D.C. Cir. 2025), which that Memorandum Opinion 
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had cited. See Nat’l Treasury Emps. Union v. Vought, No. 25-5091, 2025 WL 3659406 (D.C. Cir. 
Dec. 17, 2025). Although the panel decision cited by this Court has been vacated, the analysis 
underlying this Court’s decision has not changed. This Court viewed the facts in Vought as similar 
to those here, but it relied on other cases for the primary legal principles underlying final agency 
action and ripeness. This Court would have reached the same conclusion in applying those 
principles to the facts of this case even had it not considered the panel decision in Vought. 
Accordingly, this Court will dismiss Counts I–V and will, at this point, deny leave to amend 
them. Nothing in this decision precludes US Wind from seeking leave to amend to reassert these 
or other claims if and when circumstances change.  
B. Counts VI–X 
Federal Defendants also seek to dismiss Counts VI–X, which allege declaratory judgment 
claims. Federal courts have discretion in deciding whether to exercise jurisdiction to hear 
declaratory judgment actions. Mitcheson v. Harris, 955 F.2d 235, 237 (4th Cir. 1992); see also 28 
U.S.C. § 2201 (“In a case of actual controversy within its jurisdiction . . . any court of the United 
States, upon the filing of an appropriate pleading, may declare the rights and other legal relations 
of any interested party seeking such declaration, whether or not further relief is or could be 
sought.”) (emphasis added). 
This Court will decline to hear US Wind’s declaratory judgment claims at this juncture 
because, in substance, they duplicate several of Plaintiffs’ pending claims. See Maniscalco v. 
Brother Int’l Corp. (USA), 627 F. Supp. 2d 494, 505 (D.N.J. 2009) (dismissing declaratory 
judgment claim that duplicated another claim, the resolution of which would result in “an actual 
judgment, rather than a mere declaration” such that “the Court need not issue a separate declaratory 
judgment”). US Wind seeks declaratory judgments that the COP and its approval process complied 
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with OCSLA, the National Environmental Policy Act, the Endangered Species Act, the Marine 
Mammal Protection Act, and the National Historic Preservation Act. Plaintiffs have alleged that 
the COP and its approval process did not comply with these statutes. Accordingly, in resolving 
Plaintiffs’ claims, this Court will enter “an actual judgment, rather than a mere declaration” on 
these questions. US Wind will have the full opportunity to argue that the COP and its approval 
process complied with these statutes in its briefing on summary judgment of Plaintiffs’ claims. 
Accordingly, this Court will dismiss Counts VI–X as duplicative of the existing claims. 
IV. CONCLUSION 
For the reasons stated above, US Wind’s motion for leave to file sur-reply, ECF 130, and 
Federal Defendants’ motion to dismiss, ECF 105, are granted. US Wind’s cross claims asserted in 
its amended answer, ECF 77, are dismissed without prejudice. A separate Order follows. 
 
Dated: February 13, 2026 
 
     /s/  
 
 
 
Stephanie A. Gallagher 
 
United States District Judge 
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