US Wind Surreply re Motion to Dismiss Cross Claims — Ocean City v. Interior (D. Md.)

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U.S. District Court, District of Maryland · No. 1:24-cv-03111-SAG · Doc. 136 · 2026-02-13 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND 
(Baltimore Division) 
MAYOR AND CITY COUNCIL 
OF OCEAN CITY MARYLAND, et al. 
 
Plaintiffs/Cross-Defendants, 
v. 
UNITED STATES DEPARTMENT 
OF THE INTERIOR, et al. 
 
Defendants/Cross-Defendants. 
and 
US WIND, INC. 
 
Defendant-Intervenor/Cross-Plaintiff 
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Civil Action No: 1:24-cv-03111-SAG 
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DEFENDANT-INTERVENOR AND CROSS-PLAINTIFF US WIND’S SURREPLY IN 
RESPONSE TO FEDERAL DEFENDANTS’ MOTION TO DISMISS CROSS CLAIMS  
The Government’s reply introduces two discrete, related issues that have not previously 
been addressed in this matter. See ECF No. 129. The first is the relevance of this Court’s decision 
denying US Wind’s motion for preliminary injunction to the Government’s pending motion to 
dismiss US Wind’s cross claims. The second is the significance of the D.C. Circuit’s recent 
decision to vacate National Treasury Emps. Union v. Vought, 149 F.4th 762 (D.C. Cir. 2025), on 
which this Court’s preliminary injunction decision heavily relied. The Government breezes past 
both issues. The Court should not. 
First, contrary to the Government’s apparent assumption, the conclusions this Court 
reached in denying US Wind’s preliminary injunction do not—and cannot—dictate dismissal on a 
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Rule 12(b)(1) motion. See ECF No. 129 at 2-8. A preliminary injunction is “an extraordinary and 
drastic remedy.” ECF No. 127 at 4 (quoting Munaf v. Green, 553 U.S. 674, 689-690 (2008)). 
Because that relief “involve[s] the exercise of very far-reaching power,” it is “to be granted only 
sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 
(4th Cir. 2001). And a preliminary injunction is just that—preliminary. Relief is warranted only if 
the court finds “the movant is likely to succeed on the merits” and satisfies the other three 
requirements. ECF No. 127 at 4 (emphasis added).  
An assessment at the preliminary injunction stage is thus necessarily tentative and not 
binding on this Court for purposes of the motion to dismiss. See, e.g., Mayor & City Council of 
Baltimore v. Azar, 392 F. Supp. 3d 602, 619 n.11 (D. Md. 2019) (“[P]reliminary injunctions are by 
[their] very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not 
fixed or final or conclusive, characterized by [their] for-the-time-beingness.”) (quoting 
AlliedSignal, Inc. v. B.F. Goodrich Co., 183 F.3d 568, 573-574 (7th Cir. 1999)) (second and third 
alterations in original). Not surprisingly then, courts have generally cautioned that, even where “an 
inability to establish a” likelihood of success on threshold issues “requires denial of the motion for 
preliminary injunction,” it does not mandate “dismissal of the case.” Food & Water Watch, Inc. v. 
Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). Accordingly, this and other courts regularly deny 
motions to dismiss even when denying motions for preliminary injunctions that raise the same 
issues. See, e.g., Just City, Inc. v. Bonner, 758 F. Supp. 3d 785 (W.D. Tenn. 2024); Advance Am. v. 
Federal Deposit Ins. Corp., 257 F. Supp. 3d 56, 64 (D.D.C. 2017); EndoSurg Med., Inc. v. 
EndoMaster Med., Inc., 71 F. Supp. 3d 525, 543-553 (D. Md. 2014).1 
 
1 See also, e.g., Tohono O’odham Nation v. United States Dep’t of the Interior, 138 F.4th 1189, 
1202-04 (9th Cir. 2025) (reversing where district court “relied solely on its order denying the 
 
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This principle holds true here, where “the jurisdictional facts” underlying the question of 
whether there is final agency action that is ripe for review are “inextricably intertwined with those 
central to the merits.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In such 
circumstances, “a presumption of truthfulness should attach to the plaintiff’s allegations” even if 
they are factually disputed. Id. at 193. So a “trial court should . . . afford the plaintiff the procedural 
safeguards—such as discovery—that would apply were the plaintiff facing a direct attack on the 
merits.” Id. Accordingly, rather than dismiss on threshold grounds, the court “should ordinarily 
assume jurisdiction and proceed to the intertwined merits issues.” Id. (citing United States ex rel. 
Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009)); see generally 5B Wright & Miller’s Federal 
Practice & Procedure § 1349 (4th ed. 2025) (motions to dismiss under Rule 12(b) “should be 
granted sparingly and with caution to make certain that the plaintiff is not improperly denied a 
right to have his claim adjudicated on the merits”). 
That describes this case. In its opposition to US Wind’s preliminary injunction motion, the 
Government specifically raised ripeness and final agency action to challenge US Wind’s 
“likelihood of success on the merits,” ECF No. 106 at 5-14, and the Court addressed the issues in 
that context, ECF No. 127 at 5. Indeed, the question of whether ripeness and “final agency action” 
are satisfied here is inextricably intertwined with factual merits issues as to the validity of the 
Government’s challenged actions with respect to the COP.   
For example, those issues necessarily overlap with US Wind’s allegation that the Lease and 
OCSLA and its implementing regulations foreclose the Government’s “reconsideration” process 
absent compliance with specific standards and procedures the Government concedes it has not 
 
preliminary injunction” in granting motion to dismiss); Oxford House, Inc. v. Township of N. 
Bergen, 158 F.4th 486, 496 (3d Cir. 2025) (reversing where district court deemed amendment futile 
because it had denied preliminary injunction). 
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met. See ECF No. 77 at 60 ¶ 83; see also ECF No. 122 at 12-14 (explaining that the “Government’s 
purported ‘reconsideration’ procedure . . . is foreclosed by” the Lease and “OCSLA and associated 
regulations”), ECF No. 122 at 23 (arguing Revocation Decision is final agency action because it 
withdrew the “safe harbor” created by virtue of the Lease, OCSLA, and associated regulations). 
Whether the Government has finally adopted the Zerzan M-Opinion and decided to revoke the 
COP as part of a pretextual “reconsideration” process are likewise inextricably intertwined with 
US Wind’s claims that such action is arbitrary and capricious, contrary to law, and pretextual under 
the APA. See ECF No. 77 at 56-57 ¶¶ 62-63 (Count I, alleging that the Revocation Decision is 
unsupported, conclusory departure from the Government’s prior position, which fails to account 
for US Wind’s significant reliance interests); id. at 57-58 ¶¶ 68-71 (Count II, alleging that the 
Revocation Decision is a result of a “coordinated and targeted campaign” of political pressure); 
see also New York v. Trump, No. 25-cv-11221, 2025 WL 3514301 at *7-9 (D. Mass. Dec. 8, 2025) 
(agencies’ application of Wind Memo was final where it indisputably altered the legal status quo 
for processing “applications for leases, permits, and other authorizations necessary for wind 
project development,” with an indefinite period of reconsideration, amounting to a “de facto 
suspension of the law with respect to wind energy development”).2  
US Wind should therefore be allowed to proceed with its claims at the pleadings stage—
notwithstanding the Court’s determination that US Wind has not yet shown a likelihood of success 
 
2 Notably, the mere fact that the Government conceded at oral argument that Section 2(a) of the 
Wind Memo has effectively been invalidated is insufficient. Because the ban has been vacated, US 
Wind is entitled to a judgment that the Federal Defendants’ purported “reconsideration,” which 
amounts to a refusal to process approvals for US Wind’s Project, is unlawful. See D.A.M. v. Barr, 
486 F. Supp. 3d 404, 416 (D.D.C. 2020) (“when a court with jurisdiction finds that the plaintiffs 
before it were harmed by an agency decision issued under an illegal rule, the court should vacate 
that wrongful decision as a remedy”); see also ECF No. 77 at 47 ¶ 2 (pleading that the Revocation 
Decision is “inextricably tied” to the Administration’s broader anti-wind efforts).   
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on its claims due to ripeness and final agency action considerations. See Kerns, 585 F.3d at 196 
(reversing dismissal of claims under Rule 12(b)(1) where jurisdictional allegations were 
intertwined with merits). 
Second, and in any event, the D.C. Circuit’s decision to vacate Vought—which this Court 
found to “closely resemble” the facts here—highlights that the Court’s conclusion at the 
preliminary injunction stage that there is no final or ripe agency action should not control the 
Court’s evaluation of the motion to dismiss. ECF No. 127 at 7-10.  
Vought involved an appeal from a grant of a preliminary injunction. 149 F.4th at 770. As 
relevant here, that decision turned on whether a “putative” final agency decision to shut down the 
Consumer Financial Protection Bureau could be “infer[red]” from “various discrete ‘actions.’ ” Id. 
at 782. The panel thought not, because plaintiffs did not “point to [a] definitive statement regarding 
an agency shutdown”—so even if the government had made “an abstract decision to shut down 
the Bureau,” that “decision was not final.” Id. at 785-786. And the panel concluded that plaintiffs 
would not suffer “unusual hardship from postponing review” because they could easily “return[] 
to court when the controversy ripens” and the Bureau “denied them a discrete service.” Id. at 786. 
Judge Pillard disagreed. Her forceful dissent stressed the “remarkable” nature of the panel’s 
definitive-statement requirement—particularly where the government deliberately avoided “the 
ordinary tools of openly reasoned and vetted agency decision making” in implementing a 
“concerted and coordinated campaign” to carry out a “goal stated publicly by the President and his 
subordinates,” and the parties had not yet conducted “discovery into the internal machinations of 
Bureau leadership.” Id. at 806, 816-817 (Pillard, J., dissenting). In her view, there was “no 
plausible reason” to allow agencies to “immunize” their actions from judicial review merely by 
“obfuscat[ing]” them. Id. at 816; see id. at 820 (expressing concern that “an agency may . . . 
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completely evade judicial review of its activities . . . if it can just keep its . . . plans non-public 
until they are fait accompli”).  
The majority decision in Vought is no longer good law. On December 17, 2025, the D.C. 
Circuit granted the plaintiffs’ petition for rehearing en banc and vacated the panel’s decision. 
National Treasury Emps. Union v. Vought,, No. 25-5091, 2025 WL 3659406, at *1 (D.C. Cir. Dec. 
17, 2025) (per curiam). As the Government begrudgingly admits in a footnote, the panel’s decision 
thus has “no precedential value.” ECF No. 129 at 3 n.2 (quoting United States v. Weathers, 186 
F.3d 948, 953 n.4 (D.C. Cir. 1999)). Yet the Court’s preliminary injunction decision deemed Vought 
“instructive,” ECF No. 127 at 9, and relied on that case in concluding that the Suess Declaration 
reflects only “an abstract”—and thus non-final—decision” because, “as in Vought, agency 
consideration remains ongoing,” id. at 8. Echoing Vought, the Court further found that, even though 
forcing US Wind to “wait to see if its fears come to pass” could have “dire” consequences, there 
was “nothing unusual about such a requirement.” Id. at 9 (quotation marks and brackets omitted). 
In light of Vought’s vacatur, however, the Court cannot rely on that same reasoning at the motion 
to dismiss stage. A fortiori, at the pleadings stage, US Wind’s allegations “that BOEM has already 
decided that it will revoke the COP” should be sufficient to establish a final agency action and to 
withstand dismissal. ECF No. 127 at 8. 
The Government’s actions present the very concerns raised by the Vought dissent. Prior to 
US Wind’s deadline for adding its cross claims as of right, the Government had announced its 
intention to seek vacatur and remand but had not yet revealed its purported grounds for doing so. 
Then, after US Wind filed its cross claims, the Government provided a sworn statement of a high-
level official, with no other administrative record, to support its decision to vacate the COP 
approval, indicating for the first time that it would retroactively subject US Wind to a new, binding 
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legal opinion of the Solicitor; that there were deficiencies regarding the Project’s effects analysis; 
and that it would reconsider a “new COP decision” for an indefinite period of time. ECF No. 81-1 
¶¶ 10, 18. These actions support finding that US Wind has adequately pled that the Government 
has engaged in actions reviewable by this Court, notwithstanding the absence of a formal, 
officially-issued agency statement vacating the COP. There is “no plausible reason” for allowing 
the Government to evade review of those actions, taken pursuant to the President’s “concerted and 
coordinated [anti-wind] campaign,” simply because the government deliberately eschewed 
ordinary decision-making tools—particularly because US Wind has not yet had the benefit of 
“discovery into [BOEM’s] internal machinations.” Vought, 149 F.4th at 806, 816-817 (Pillard, J., 
dissenting). 
In any event, insofar as the Court determines that the cross claims do not currently plead 
sufficient detail as to finality and ripeness, US Wind seeks leave to amend to provide that detail. 
See ECF No. 90 at 21 (seeking “leave to amend,” “[t]o the extent the Court determines there is any 
deficiency in US Wind’s allegations”); see, e.g., Habash v. City of Salisbury, No. 04-cv-2338, 2007 
WL 9780388, at *1 (D. Md. Aug. 8, 2007) (“Courts in this circuit and elsewhere have consistently 
held that leave to amend should be granted absent bad faith, undue prejudice to the opposing party, 
or futility of amendment.”) (quotation marks omitted). Amendment is particularly appropriate here 
in light of several factual developments post-dating US Wind’s Cross Claims, including: the filing 
of the Suess declaration and the Government’s motion to remand with vacatur, ECF Nos. 81, 81-
1; and the decision in New York v. Trump, 2025 WL 3514301 at *7-9, which found the indefinite 
pause and alteration of the legal status quo with respect to wind projects to be final agency action.  
US Wind would also seek leave to conduct expedited discovery on these issues, which are deeply 
intertwined with the merits. See Kerns, 585 F.3d at 196 (reversing dismissal of claims under Rule 
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12(b)(1) and remanding for discovery where jurisdictional allegations were intertwined with 
merits). 
For these reasons, and those in US Wind’s prior briefing, the Court should deny the 
Government’s motion to dismiss US Wind’s cross claims.  
Dated: December 22, 2025 
 
Respectfully submitted, 
 
By: /s/ Toyja E. Kelley 
Toyja E. Kelley, Sr. (D. Md. Bar No. 26949) 
Emily Huggins Jones (pro hac vice) 
Gregory L. Waterworth (D. Md. Bar No. 20938) 
TROUTMAN PEPPER LOCKE LLP 
701 8th Street, N.W., Suite 500 
Washington, D.C. 20001 
Telephone: (202) 220-6900 
Facsimile: (202) 220-6945 
toyja.kelley@troutman.com 
emily.hugginsjones@troutman.com 
greg.waterworth@troutman.com 
 
Hilary Tompkins (pro hac vice) 
Sean Marotta (pro hac vice) 
HOGAN LOVELLS US LLP 
555 13th Street N.W. 
Washington, D.C. 20004 
Telephone: (202) 637-5617 
hilary.tompkins@hoganlovells.com 
sean.marotta@hoganlovells.com 
 
David Newmann (pro hac vice)  
HOGAN LOVELLS US LLP 
1735 Market St., 23d Floor 
Philadelphia, PA 19103 
Telephone: (267) 675-4600 
david.newmann@hoganlovells.com 
 
Attorneys for Defendant-Intervenor and Cross 
Claim Plaintiff US Wind, Inc. 
 
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