Interior Secretary Ken Salazar should not be held in contempt for imposing a second moratorium on deepwater drilling in the Gulf of Mexico in 2010 after a judge in Louisiana overturned the department's initial ban, a Justice Department attorney argued Wednesday before the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

In February 2011, U.S. District Court Judge Martin Feldman held Salazar and the Interior Department in civil contempt of the court's preliminary injunction barring the federal government from enforcing its initial moratorium, which the government imposed in May of that year (see Daily GPI, Feb. 4, 2011). Feldman issued the preliminary injunction in June 2010 (see Daily GPI, June 23, 2010).

He ruled that Interior failed to justify its decision to impose the six-month ban on deepwater drilling in the wake of the blowout of BP's Macondo well, and essentially sought retribution against an entire industry for the actions of one company: BP plc. No sooner was the ink dry on Feldman's decision when Interior in July 2010 issued a second moratorium in disregard of the preliminary injunction (see Daily GPI, July 14, 2010).

In their request for the contempt finding, the plaintiffs -- Louisiana-based Hornbeck Offshore Services and other oil and gas service companies -- "[stressed] that the government did not simply reimpose a blanket moratorium; rather, each step the government took following the court's imposition of a preliminary injunction [showcased] its defiance; the government failed to seek a remand; it continually reaffirmed its intention and resolve to restore the moratorium; it even notified operators that...they could quickly expect a new moratorium."

Justice Department attorney Allen M. Brabender argued the case for the government before the Fifth Circuit. He claimed that Salazar did not show contempt for Feldman's first ruling, which he said was limited to the department's first moratorium, the Associated Press (AP) reported. He argued that the second shutdown was different from the initial moratorium because it was backed up by more research and offered more details as to why the ban was necessary, according to AP.

"It seems that you're saying they could put a new title on a document and re-issue it," said Judge Jennifer Elrod. But she indicated that she might have difficulty in finding Salazar in contempt. "As long as he [Salazar] has a legal way to do it, how is it contempt? That is the problem with this case."

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