NOW IN TO COURT, through undersigned counsel, comes Plaintiff Sierra Club, and for complaint against Defendants Gale Norton, Secretary of the United States Department of the Interior, the National Park Service, and the U.S. Fish and Wildlife Service, states the following:

1.

The Kemp’s ridley sea turtle is the most highly endangered sea turtle species in the world. This ancient creature once nested by the tens of thousands on the beaches of the Gulf of Mexico. Human depredation, coastal development, mortality from fishing practices and other causes have now left only a remnant of the Kemp’s ridley population in existence, and the majority of them nest at a single site near Rancho Nuevo in the Mexican state of Taumalipas. Padre Island National Seashore, a unit of the National Park system, is one of the few places in the United States where consistent nesting by the Kemp’s ridley has been documented. In fact, Padre Island is so important a location for the survival of the Kemp’s ridley that the federal government has gone to great lengths to augment the nesting colony. During the last two decades more Kemp’s ridley nests have been documented at the Padre Island National Seashore than at any other location in the United States. In addition, at least one other endangered sea turtle, the loggerhead, is documented to regularly nest at the Padre Island National Seashore. The nesting season at the Padre Island National Seashore is from April to September.

2.

When the Padre Island National Seashore was established, much of the land was purchased from private owners. Many of these owners retained the mineral rights underlying the property, and have the rights, subject to the restrictions posed by state and federal law, to explore for and produce oil and gas. The National Park Service retains control over surface operations in the Park area, however, and is obligated to insure that operations in the Park do not violate federal laws. The U.S. Fish and Wildlife Service is also obligated, through carrying out its consultation role under the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("AESA"), to review the Park Service’s actions to determine whether they will cause harm to listed endangered species.

3.

This case involves the drilling of an exploratory oil and gas well known as the Dunn-Murdock Well # 1, within the boundaries of the Padre Island National Seashore. Drilling operations on this well commenced approximately one month ago and are ongoing. The plan of operations for drilling this well calls for eighteen wheel diesel trucks, as well as a number of other smaller vehicles, to drive fourteen miles on the beach at the Padre Island National Seashore as many as 40 times daily, for a period of several months. Truck traffic of this size and volume has, as explained in later sections of this complaint, significant adverse impacts on nesting sea turtles as well as other wildlife on the Padre Island National Seashore.

4.

The National Environmental Policy Act, 28 U.S.C. § 4321 et seq. ("NEPA"), mandates that federal decision makers consider the environmental consequences of federal permitting decisions, including both the secondary and cumulative effects of proposed projects. An Environmental Assessment under NEPA was prepared by BNP Petroleum and adopted by the National Park Service, but that EA did not consider the impacts of large truck traffic on nesting sea turtles or other wildlife. In fact, the EA assumed that the well would be drilled outside the nesting season for the Kemp’s ridley and loggerhead turtles. When it became clear that the well would be drilled in the heart of the nesting season, no additional analysis was prepared, and the project has been allowed to proceed without analysis of adverse impacts to nesting sea turtles.

5.

In this action the Sierra Club seeks declaratory, preliminary and permanent injunctive relief against Secretary of the Interior Gale Norton, the National Park Service, and the U.S. Fish and Wildlife Service because they have failed to adequately disclose and consider the impacts on endangered sea turtles and other wildlife of drilling this oil well. In particular, the Defendants have failed to analyze the impacts of truck traffic during sea turtle nesting season. Further, Defendants have failed to prepare supplemental NEPA documentation after the plan for drilling the Dunn-Murdock Well # 1 changed significantly from the alternative originally analyzed. This failure on the part of the Park Service violates the National Environmental Policy Act and the National Park Service Organic Act, and is actionable under the terms of the Administrative Procedure Act, 5 U.S. C. Section § 706, et seq. Further, the U.S. Fish and Wildlife Service, by concurring with a finding that the drilling of this well will have no effect on listed species, has violated the Endangered Species Act. The Sierra Club seeks permanent injunctive relief prohibiting the Defendants from permitting or aiding in any way drilling activities without complying with NEPA and the ESA. The Sierra Club will also in the immediate future file a properly supported request for preliminary injunctive relief requiring the Defendants to withdraw their authorization for the drilling of the Dunn-Murdock Well # 1, and prohibiting it from taking any action in aid of the drilling of such a well until the case can be heard on the merits.

6.

This action is brought under the Constitution and laws of the United States, more particularly, the federal question jurisdiction of the United States Courts, 28 U.S.C. § 1331. The Sierra Club has standing to pursue this action, because it has members who are directly and adversely affected by the Park Service’s action in failing to adequately consider and mitigate the adverse impacts of the drilling of the Dunn-Murdock Well # 1 on the Kemp’s ridley and other endangered sea turtles, as well as other wildlife.

7.

Venue is proper in this court in accordance with 28 U.S.C. § 1391(e) in that the Defendants are officers, employees, or divisions of the United States acting in their official capacity and a substantial part of the events giving rise to this claim occurred in the Southern District of Texas.

8.

The Sierra Club was founded in 1892 by John Muir, and is a non-profit corporation organized under California law. It is one of the oldest, and one of the largest, grassroots environmental organizations in the country. The Sierra Club is composed of over 700,000 members, including over 23,000 who reside in Texas and are members of the Lone Star Chapter of the Sierra Club. Many of the Sierra Club’s Texas members use the Padre Island National Seashore for recreational and scientific purposes, including for the express purpose of observing and protecting the Kemp’s ridley and loggerhead sea turtles which nest there.

9.

Defendant Gale Norton is the Secretary of the Interior of the United States of America, and in that position is responsible for the administration and protection of the rescues of the National Park System. The National Park Service is the entity within the Department of the Interior which is responsible for the day to day operations of the National Park System. The National Park Service adopted the Environmental Assessment prepared by BNP Petroleum, and based on that EA made a finding of no significant impact ("FONSI"), declaring that an EIS was not necessary, and that impacts to Park resources, including wildlife such as the endangered sea turtles, would not be significant. Based on these findings, the Park Service issued the necessary permits and approved the plan of operations for the drilling of the Dunn-Murdock Well # 1. Defendant U.S. Fish and Wildlife Service is the agency within the Department of the Interior to which the Secretary of the Interior has delegated her obligations under the Endangered Species Act, including the obligations to conserve and prevent jeopardy to threatened and endangered species, and to use the best available scientific and commercial data in the consultation process.

10.

The Padre Island National Seashore was established by act of Congress in 1962. It is composed of approximately 130,000 acres of barrier island habitat located on North Padre Island southeast of Corpus Christi, Texas. The Seashore includes approximately 45 miles of beach. The express purpose of Congress in creating the Padre Island National Seashore was to preserve the undeveloped natural seashore. The undeveloped natural seashore is the primary reason that the Padre Island National Seashore is so important to the Kemp’s ridley and other endangered sea turtles.

11.

The Kemp’s ridley sea turtle is one of the smallest of the marine sea turtles, generally weighing no more than 100 pounds. Like all sea turtles, the Kemp’s ridley nests by digging a depression in the sand, in which a clutch of eggs is laid. Through auditory, olfactory and other cues the Kemp’s ridley is "imprinted" with the beach on which it was hatched, and returns to that beach to nest. The primary known nesting beach for the Kemp’s ridley is called Rancho Nuevo, and it is located in the Mexican state of Taumalipas. A 1947 film documents the nesting of as many as 40,000 adult female Kemp’s ridley at Rancho Nuevo. Unfortunately, by the 1960’s collection of turtle eggs and meat for food, death in fishing trawls, and development of coastal beaches had reduced nesting females to a small fraction of their previous number, and by the 1980’s only 1000 or fewer nesting females were left. These numbers have risen slightly in the past few years, but the Kemp’s ridley remains the most endangered sea turtle in the world. It was listed as endangered under the then-version of the federal Endangered Species Act in 1970, and has remained listed since that time.

12.

Although the primary nesting site for the Kemp’s ridley is Rancho Nuevo, North Padre Island and the Padre Island National Seashore are critical secondary nesting sites. Nesting has always occurred in these areas, and in 1978 the United States government and the government of the Republic of Mexico undertook a program to augment this secondary breeding population. For the decade 1978-1988 eggs were collected at Rancho Nuevo and transported to the Padre Island National Seashore. The eggs were hatched there, and juvenile turtles were kept on the beach in order to allow them to become "imprinted" before being released. It has been confirmed that these "imprinted" turtles have returned and nested at the Padre Island National Seashore, along with other turtles apparently from a population that historically nested at Padre Island. The nesting population at Padre Island is particularly valuable because it provides a "back-up" in the event of a catastrophic nesting failure at Rancho Nuevo due to a hurricane, pollution or some other event.

13.

Each year Kemp’s ridley nests are reported at the Padre Island National Seashore. In 2001 three Kemp’s ridley nests, along with one loggerhead turtle nest, were confirmed at the Padre Island National Seashore. It is generally agreed that other nests were likely present but not detected by monitoring efforts. Over the past two decades the Padre Island National Seashore has consistently had the largest number of Kemp’s ridley nests of any single location in the United States. In order to ensure the highest possible survival rate, eggs in these nests are collected, incubated, and the juvenile turtles are then released.

14.

Along with the Kemp’s ridley three other sea turtle species are known to nest on the beaches of the Padre Island National Seashore. The green and hawksbill sea turtles have been known to nest in the area, and the loggerhead turtle has been consistently documented to nest at Padre Island. Each of these species is also listed under the Endangered Species Act due to threats the their nesting habitat and impacts from fishing practices. The beach at the Padre Island National Seashore also serves as habitat for many species of shorebirds.

15.

In mid-2001 BNP Petroleum Corporation proposed to drill an exploratory oil and gas well called the Dunn-Murdock Well # 1 from a location in the Padre Island National Seashore. The location chosen for this well requires that eighteen-wheel diesel trucks carrying equipment and supplies drive approximately 14 miles along the Padre Island beach as many as 40 times daily for a period of several months. For the nesting season of April through September, this stretch of beach is used by the Kemp’s ridley, green, loggerhead and hawksbill sea turtles for nesting.

16.

In November 2001, an Environmental Assessment for the Dunn-Murdock Well #1 ("EA") was prepared by BNP Petroleum, and adopted without any modification by the National Park Service. This Environmental Assessment contains a section 1.4, which is titled "Issues and Impact Topics Eliminated from Further Analysis." Section 1.4.3 reads in part as follows: "BNP Petroleum proposes to schedule drilling the Dunn-Murdock Well # 1 during the winter months to avoid transporting the drill rig down the Gulf beach during sea turtle nesting season." November 2001 EA at 10. Section 3.7 of the EA, which is entitled "Impacts on Wildlife," does not mention sea turtles. The EA contains no further discussion of potential impacts to sea turtles.

17.

The National Park Service also purported to undertake the process of "informal consultation" pursuant to the Endangered Species Act on the Dunn-Murdock Well # 1. In this process a federal agency undertakes to "consult" with the U.S. Fish and Wildlife Service to determine the effects of its actions on species listed under the Endangered Species Act. The National Park Service found that the drilling of the Dunn-Murdock Well # 1 was "not likely to adversely affect" the endangered turtle species that nest on Padre Island. On December 5, 2001 the U.S. Fish and Wildlife Service concurred with this "not likely to adversely affect" determination. The informal consultation documentation does not mention, however, that drilling and truck traffic will take place during the nesting season. The Sierra Club believes this "not likely to adversely affect" finding and the FWS’ concurrence clearly violate the Endangered Species Act. The Sierra Club is providing defendant U.S. National Park Service with notice that it is in violation of the ESA, as required by the ESA.

18.

The assumption in the November 2001 EA and the informal consultation documents that construction of the well would not take place during the sea turtle nesting season was not correct. Construction is currently taking place, and is expected to continue for the indefinite future. The National Park Service and the U.S. Fish and Wildlife Service have failed to analyze the actual impacts of the truck traffic and other activity associated with the drilling of the Dunn-Murdock Well #1 on the endangered sea turtle species that use the beach at the Padre Island National Seashore for nesting. These impacts include the following:

Creation of obstacles to sea turtle nesting in the form of sand compaction and rutting;

Direct injury to sea turtles, egg clutches or hatchlings;

Interference with the "imprinting" process through noise, vibrations, smells, and light pollution;

Interference with the mating process through introduction of noise and night time activity.

19.

Plaintiffs repeat and incorporate herein by reference the allegations of all foregoing paragraphs.

20.

NEPA and its implementing regulations require the supplementation of NEPA documentation whenever the agency makes substantial changes in the proposed action that are relevant to environmental concerns, or there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The fact that drilling and truck traffic would occur in sea turtle nesting areas during the breeding season is a substantial change in the proposed action, and new information or circumstances, requiring supplementation of the existing documentation before allowing the modified action to be carried out. The actions of Secretary Norton and the National Park Service in permitting the activity to go forward without supplemental NEPA analysis is arbitrary, capricious and contrary to law. The Sierra Club is suffering irreparable injury justifying preliminary and permanent injunctive relief as a consequence of the Park Service’s arbitrary, capricious and illegal actions.

21.

Plaintiffs repeat and incorporate herein by reference the allegations of all foregoing paragraphs.

22.

In the alternative, an Environmental Assessment prepared under the National Environmental Policy Act must include a full discussion of the impacts of the proposed federal action, including all direct, indirect and cumulative impacts. 40 C.F.R. § 1508.9. An environmental assessment is further required to consider all reasonable alternatives to the proposed action.

23.

Because the November 2001 EA does not consider the substantial adverse impacts on endangered sea turtles of truck traffic associated with the drilling of the Dunn-Murdock Well #1, Secretary Norton and the National Park Service’s conclusions that the EA adequately considers environmental impacts, that an EIS is not required, and that the mitigation proposed is sufficient to ameliorate the adverse impacts of the project is arbitrary, capricious, an abuse of discretion, and not in accordance with law. Further, the November 2001 EA does not consider the reasonable alternative of restricting truck traffic on sea turtle nesting areas to the winter months, when turtles would not be impacted. This failure to consider reasonable alternatives is arbitrary, capricious and contrary to law. The Sierra Club is suffering irreparable injury justifying preliminary and permanent injunctive relief as a consequence of Secretary Norton and the Park Service’s arbitrary, capricious and illegal actions.

24.

Plaintiffs repeat and incorporate herein by reference the allegations of all foregoing paragraphs.

25.

Under the Endangered Species Act and its implementing regulations, the U.S. Fish and Wildlife Service is required to use the best available scientific and commercial data to carry out its obligation to consult with federal agencies to determine the effects of their actions on listed species. The U.S. Fish and Wildlife Service’s concurrence with the National Park Service’s "not likely to adversely affect" finding with respect to the impact on listed sea turtles of the activities associated with the drilling of the Dunn-Murdock Well #1 is arbitrary, capricious and contrary to law, and fails to use the best scientific and commercial information.

Wherefore, Plaintiff Sierra Club respectfully requests that this Court enter judgment in its favor and against defendants Gale Norton, the National Park Service and the U.S. Fish and Wildlife Service:

(1) Declaring that Secretary Norton and the National Park Service’s failure to supplement the November 2001 EA, and their decision to allow permits for the drilling of the Dunn-Murdock Well # 1 to remain in place without any supplemental NEPA documentation, is arbitrary, capricious and contrary to law;

(2) In the alternative, declaring that Secretary Norton and the National Park Service’s action in failing to analyze impacts on nesting sea turtles in the November 2001 EA, and failing to include the reasonable alternative of banning truck traffic in sea turtle habitat during nesting season, is arbitrary, capricious and contrary to law, and further declaring arbitrary, capricious and contrary to law the associated final agency decisions that the November 2001 EA adequately considers environmental impacts, that an EIS is not required, and that the mitigation proposed is sufficient to ameliorate the adverse impacts of the project;

(3) Declaring that the U.S. Fish and Wildlife Service’s concurrence with the National Park Service’s "not likely to adversely affect" finding is arbitrary, capricious and contrary to law, fails to use the best available scientific and commercial information, and violates the Endangered Species Act;

(4) Granting the Sierra Club preliminary and permanent injunctive relief requiring Defendants to withdraw the permits allowing all actions in support of the Dunn-Murdock Well #1 that will potentially impact sea turtle nesting, until such time as Defendants have complied with NEPA, the ESA and other applicable laws and regulations;

(5) Awarding the Sierra Club its attorneys fees and costs under the Equal Access to Justice Act and other applicable statutes; and

(6) Ordering such other and further relief as is appropriate in the premises.

Respectfully submitted this 17^th day of April, 2002,