Civil Lawsuit Against "GOLDEN RAY'S Owner/responsible Party"

Case 2:20-cv-00011-LGW-BWC Document 1 Filed 02/13/20 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
DONJON-SMIT, LLC
VS.
ADMIRAL KARL L. SCHULTZ, CAPTAIN CIVIL ACTION NO. ______

JOHN W. REED, COMMANDER NORM C.
WITT, and COMMANDER MATTHEW J.
BAER, IN THEIR OFFICIAL CAPACITY
AS OFFICERS OF THE UNITED STATES
COAST GUARD
PLAINTIFF DONJON-SMIT, LLC’S

VERIFIED COMPLAINT, REQUEST FOR INJUNCTIVE RELIEF, AND
WRIT OF MANDAMUS
Plaintiff Donjon-SMIT, LLC (“Donjon-SMIT”) files this Verified Complaint, Writ of
Mandamus, and Request for Injunctive Relief (the “Complaint”) against Defendants Admiral Karl
L. Schultz, Captain John W. Reed, Commander Norm C. Witt, and Commander Matthew J. Baer
(collectively, the “Defendants”) in their official capacity as officers of the United States Coast
Guard (“Coast Guard”), and in support thereof state as follows:
INTRODUCTION
1. Plaintiff Donjon-SMIT, LLC (“Donjon-SMIT”) files this Complaint along with an
accompanying Motion for Injunctive Relief. 1 to both prevent an almost certain environmental
disaster in Port of Brunswick, St. Simons Sound caused by capsizing of the GOLDEN RAY and
to require the United States Coast Guard to follow the requirements of the Oil Pollution Act of
1990 (“OPA 90”). The Coast Guard and the Federal On-Scene Coordinator, in direct violation of
the OPA 90 and the corresponding regulations, are permitting an extremely high-risk salvage plan
1
Donjon-SMIT’s Motion for Injunctive Relief and Brief in Support Thereof is being filed simultaneously with this
Complaint.
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to move forward that has failed on two prior occasions involving similar shipwrecks. The vessel
owner/responsible party and the Coast Guard are directly subverting the statutory and regulatory
requirements of OPA 90. Donjon-SMIT has not only warned the Coast Guard about the imminent
environmental risks but has also requested that the Coast Guard follow the requirements for OPA
90. Despite this and Donjon-SMIT’s multiple requests for information from the Coast Guard
regarding its decision, the Coast Guard has refused to respond instead unlawfully delegating its
sole decision-making authority to the GOLDEN RAY’S owner/responsible party. This has left
Donjon-SMIT with no other option but to seek court intervention in the best interest of the proper
enforcement of OPA 90 and to avert an imminent environmental catastrophe.
PARTIES
2. Donjon-SMIT is a maritime salvage, firefighting, and lightering company that is
registered as a limited liability company in the State of Delaware.
3. Defendant Admiral Karl L. Schultz (“Admiral Schultz”) is the Commandant of the
United States Coast Guard (“Coast Guard”). The Coast Guard is a military branch and federal
agency within DHS. Admiral Schultz may be served with process at the National Command
Center of the Coast Guard, US Coast Guard Stop 7318, 2703 Martin Luther King Jr Ave SE,
Washington, DC 20032. Pursuant to Federal Rule of Civil Procedure 4(i), a copy of the summons
and of this complaint will also be sent by registered or certified mail to the United States Attorney’s
Office for the Southern District of Georgia at 22 Barnard Street, Suite 300
Savannah, Georgia 31401, and to the Attorney General’s Office at 950 Pennsylvania Avenue, NW
Washington, DC 20530-0001.
4. Defendant Captain John W. Reed (“Captain Reed”) is a Coast Guard Captain and
Commander of the Coast Guard Sector Charleston. Captain Reed may be served with process at
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196 Tradd Street, Charleston, SC 29401. Pursuant to Federal Rule of Civil Procedure 4(i), a copy
of the summons and of this complaint will also be sent by registered or certified mail to the United
States Attorney’s Office for the Southern District of Georgia at 22 Barnard Street, Suite 300
5. Commander Norm C. Witt (“Commander Witt”) is a Coast Guard Commander, the
Commander of the Coast Guard Marine Safety Unit Savannah, and the Federal On-Scene
Coordinator (“FOSC”) in the State of Georgia. Commander Witt may be served with process at
1297 N. Lightning Road, Savannah, GA 31408. Pursuant to Federal Rule of Civil Procedure 4(i),
a copy of the summons and of this complaint will also be sent by registered or certified mail to the
United States Attorney’s Office for the Southern District of Georgia at 22 Barnard Street, Suite
300 Savannah, Georgia 31401, and to the United States Attorney General’s Office at 950
Pennsylvania Avenue, NW Washington, DC 20530-0001.
6. Commander Matthew J. Baer (“Commander Baer”) is a Coast Guard Commander
who at certain relevant times acted as the FOSC. Commander Baer may be served with process at
196 Tradd Street, Charleston, SC 29401. Pursuant to Federal Rule of Civil Procedure 4(i), a copy
of the summons and of this complaint will also be sent by registered or certified mail to the United
States Attorney’s Office for the Southern District of Georgia at 22 Barnard Street, Suite 300
JURISDICTION AND VENUE
7. This Court has jurisdiction pursuant to the following statutes:
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a. 28 U.S.C. § 1331, which provides district courts with original jurisdiction

over all civil actions arising under the Constitution, laws, or treaties of the
United States;
b. 28 U.S.C § 1346, which provides district courts with original jurisdiction

over any civil action or claim against the United States, not exceeding
$10,000 in amount, founded either upon the Constitution, or any Act of
Congress, or any regulation of an executive department;
c. 33 U.S.C. § 1321(e)(2) of the Clean Water Act, which provides district

courts with jurisdiction to grant any relief under § 1321(e) that the public
interest and the equities of the case may require.
8. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(B).
9. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§
2201 and 2202.
BACKGROUND
A. The GOLDEN RAY Capsizes in St. Simons Sound.
10. On September 8, 2019, the GOLDEN RAY, a 200-metre-long car carrier vessel,
capsized in the Port of Brunswick, St. Simons Sound. The capsizing of the GOLDEN RAY is the
largest cargo shipwreck in U.S. coastal waters since the Exxon Valdez. At the time of the accident,
the GOLDEN RAY was carrying approximately 4,200 automobiles and over twenty crew
members. Though all crew members have been rescued, the automobiles remain trapped within
the cargo hold of the GOLDEN RAY posing a “substantial threat of a discharge” in the navigable
waters of St. Simons Sound if not properly removed. 2 In short, the cars need to be safely removed
to avoid environmental disaster.
2 A true and correct copy of Commander Witt’s November 8, 2019 USCG Administrative Order 01-19 Amendment
1 is attached hereto as Exhibit 1.
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Photograph of the capsized GOLDEN RAY vessel in St. Simons Sound
B. Congress Requires Non-Tank Vessel Response Plans Under OPA 90.
11. In response to the devastating impacts of the Exxon Valdez disaster, Congress
passed OPA 90 amending the Clean Water Act. OPA 90 was designed to address a wide-range of
problems associated with preventing, responding to, and paying for oil pollution incidents in the
navigable waters of the United States. Importantly, OPA 90 greatly increased federal oversight of
maritime oil transportation and significantly reduced the amount of discretion that responsible
parties had in determining how to best respond to environmental emergencies of their own making.
12. Before OPA 90, a vessel owner responsible for an oil spill ironically also wielded
significant control over how the spill would be cleaned up. In order to shift decision-making
authority regarding oil spill response efforts back into the hands of public officials, OPA 90
requires owners of non-tank vessels carrying oil to submit to the Coast Guard a Non-Tank Vessel
Response Plan (“NTVRP”) detailing how they will respond to large discharges. 33 C.F.R. §
155.5010. Depending on the capacity of the vessel, the NTVRP must demonstrate that the vessel
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owner has contracted with resource providers to provide certain services in case of an emergency,
including salvage, emergency lightering, and marine firefighting. 33 C.F.R. § 155.5035. Once a
plan is approved, a vessel owner may not deviate from the NTVRP without additional approval
from the President or the FOSC. 33 U.S.C.A. § 1321(c)(3)(B) (emphasis added). Moreover, the
FOSC may only approve a deviation from the NTVRP under “exceptional circumstances.” 33
C.F.R. § 155.4032 (emphasis added). Section 155.4032 provides:
Use of resource providers not listed in the VRP. If another resource provider, not
listed in the approved plan for the specific service required, is to be contracted for
a specific response, justification for the selection of that resource provider needs to
be provided to, and approved by, the FOSC. Only under exceptional
circumstances will the FOSC authorize deviation from the resource provider listed
in the approved vessel response plan in instances where that would best affect a
more successful response.”
33 C.F.R. § 155.4032(a) (emphasis added).
According to the Coast Guard’s own administrative guidance published in 2009, its
NTVRP requirement was implemented “to ensure that an incident be responded to quickly and
without the need for contract negotiations during an actual emergency.” Salvage and Marine
Firefighting Requirements; Vessel Response Plans for Oil, 73 FR 80618-01. Clearly, the term
“exceptional circumstances” was intended to rarely allow for deviations from an approved
NTVRP. 3
3 Though 33 C.F.R. § 155.4032 has not yet been interpreted by a court of law, courts have interpreted use of the term
exceptional circumstances in other federal rules and regulations as setting a high threshold that should rarely be met.
For example, under Supreme Court Rule 20, an “extraordinary writ” such as a writ of mandamus or habeas corpus
may only be granted upon a showing of “exceptional circumstances [that] warrant the exercise of the Court’s
discretionary powers[.]” U.S. Sup. Ct. R. 20. Tellingly, though thousands of such petitions have been filed, the Court
has not granted an extraordinary writ of habeas corpus since 1925, see Ex parte Grossman, 267 U.S. 87 (1925), or a
writ of mandamus since 1962. See Fong Foo v. United States, 369 U.S. 141 (1962). Similarly, under Section 1229a
of the Immigration and Nationality Act, a judge’s removal order made in absentia may only be rescinded under
“exceptional circumstances”. 8 U.S.C. § 1229a(e)(1). This language has been interpreted to “set[] a high bar that ‘will
be met in only rare cases.’” Jimenez-Castro v. Sessions, 750 F. App'x 406, 408–09 (6th Cir. 2018) (quoting Kaweesa
v. Gonzales, 450 F.3d 62, 68 (1st Cir. 2006)); see also Herbert v. Ashcroft, 325 F.3d 68, 72 (1st Cir. 2003). Likewise,
pursuant to 18 U.S.C.A. § 3145(c), which governs the review of detention or release orders in criminal proceedings,
a judicial officer may only order the release of a defendant held under a detention order if “it is clearly shown that
there are exceptional reasons why such person’s detention would not be appropriate.” 18 U.S.C.A. § 3145. Here again,
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C. The GOLDEN RAY’s NTVRP Under OPA 90.
13. GL NV24 Shipping Inc. (“Owner”) is the owner of the GOLDEN RAY. As the
owner of a non-tank vessel carrying oil, Owner was required to prepare an NTVRP. Pursuant to
an agreement signed on September 20, 2017, Donjon-SMIT was designated as the approved
salvage and marine firefighter (“SMFF”) provider under the GOLDEN RAY NTVRP for nineteen
different salvage and marine firefighting services. Donjon-SMIT is a highly-experienced marine
salvage and casualty response provider which currently holds active response agreements with
approximately 7,000 vessels worldwide. In fact, Donjon-SMIT is the largest OPA 90 provider in
the world.
D. Donjon-SMIT Provides Life Saving Emergency Services on the GOLDEN

RAY and Limits Environmental Harm.
14. Within hours of the GOLDEN RAY capsizing, Donjon-SMIT provided emergency
salvage, firefighting, and damage stability services as the approved SMFF under the GOLDEN
RAY NTVRP. Donjon-SMIT assisted in the successful rescue of four trapped crewmen. Donjon-
SMIT further stabilized the worksite by laying down a blanket of rock surrounding the ship, and
by late October, Donjon-SMIT successfully removed most of the approximately 300,000 gallons
of bunker fuel from the GOLDEN RAY’s twenty-four fuel tanks. Donjon-SMIT performed
everything it was asked to do. By all accounts, Donjon-SMIT’s emergency services not only saved
lives, but significantly limited the environmental harm caused by the GOLDEN RAY’s capsizing.
This is the exact type of response Congress envisioned under OPA 90 and its NTVRPs.
what qualifies as exceptional has been narrowly defined. See United States v. McGillivray, No. 2:11 CR 22-7, 2012
WL 137409, at *2 (quotations omitted) (W.D.N.C. Jan. 18, 2012) (“Courts generally have defined ‘exceptional
reasons’ as circumstances which are clearly out of the ordinary, uncommon, or rare.”); United States v. Lea, 360 F.3d
401, 403 (2d Cir.2004) (quoting United States v. DiSomma, 951 F.2d 494, 497 *2d Cir.1991) (“Exceptional
circumstances exist where there is ‘a unique combination of circumstances giving rise to situations that are out of the
ordinary.’”).
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Donjon-SMIT laying down rocks to stabilize the GOLDEN RAY
E. Donjon-SMIT Submits a Proven Salvage Plan Focused on Mitigating the

Environmental Risks and Avoiding the Main Navigation Channel to the Port
of Brunswick.
15. After securing the GOLDEN RAY, Donjon-SMIT was ready to move forward with
removing the wreck under the GOLDEN RAY’s NTVRP. On November 5, 2019, Donjon-SMIT
submitted a salvage plan proposal to Owner and its representatives. 4 Under Donjon-SMIT’s plan,
the GOLDEN RAY would be cut and removed in small sections weighing approximately 600 tons
each, allowing for a controlled removal of the over 4,000 automobiles still inside the vessel while
minimizing stress on the damaged hull and reducing the significant risk of inadvertent discharges
into St. Simons Sound.
16. This approach had been successfully employed in a similar shipwreck salvage
operation for the REIJIN that also involved the safe removal of automobiles that had posed a
4 A true and correct copy of Donjon-SMIT’s November 5, 2020 salvage plan is attached hereto as Exhibit 2.
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significant environmental risk. Additionally, Donjon-SMIT proposed establishing a small 4.6-
acre protective perimeter around the GOLDEN RAY that not only mitigates environmental risks
but also avoids the main navigation channel to the Port of Brunswick. Donjon-SMIT was prepared
to move forward with its plan in November of 2019 and remains ready willing and able to
implement its plan today.
F. The Owner subverts OPA 90 and Requests that Donjon-SMIT be replaced by

Another Salvage Company.
17. Owner and its representatives rejected Donjon-SMIT’s proposal out of hand, citing
their unproven preference that the vessel be removed in much larger sections of approximately
4,000 tons. Rather than affording Donjon-SMIT an opportunity to advocate for its safer small
section removal plan, Commander Witt instead allowed Owner to place the wreck removal project
out for tender to third-party contractors who were not part of the NTVRP in violation of OPA 90
and its regulations. Further, Commander Witt permitted Owner to solicit proposals based on a
“fixed-price” rate rather than on the “cost-plus” terms used in the GOLDEN RAY’S NTVRP. The
change to a “fixed price” structure is alarming it that it appears that the Owner may be attempting
to limit its exposure. Simply put, Commander Witt allowed Owner to conduct the very bidding
process that OPA 90 was designed to prevent, wasting valuable time that Donjon-SMIT could have
used to begin work on the GOLDEN RAY while at the same time allowing the Owner to
potentially limit it exposure.
18. Soon thereafter, Donjon-SMIT learned that a third-party company named T&T
Salvage (“T&T”) had submitted its own proposal to Owner and was permitted to present its plan
to the entire Unified Command, including Commander Witt and other Coast Guard officials.
Donjon-SMIT, which again was the pre-contracted SMFF resource provider, was never afforded
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a similar meeting with Unified Command to discuss its own proposal and its serious concerns with
T&T’s unproven, high risk plan.
G. T&T’s High-Risk Plan Will Likely Result in an Environmental Disaster in

the Waters of St. Simons Sound.
19. T&T proposed a high risk, “large section” removal whereby eight sections of the
ship, weighing approximately 4,000 tons each, would be removed and transported by barge to the
Gulf of Mexico. Similar large section removal processes have been used on capsized car carrier
vessels twice before without success--once on the TRICOLOR in 2003, and again on the BALTIC
ACE in 2014. In both instances, after removal of several large sections, the remaining sections
collapsed, releasing additional pollutants into the surrounding waters. Additionally, T&T’s
proposed plan would require the construction of a thirty-one acre environmental protection barrier
in St. Simons Sound that would interfere with the navigation channel, increasing the potential for
another accident. Further, because each removed section would be even larger than the barge itself,
there would be significant risk of the sections falling off the barge during transport to the Gulf.
T&T’s proposal is also significantly more expensive than Donjon-SMIT’s.
H. The Coast Guard Permitted an Unlawful Deviation from GOLDEN RAY’s

NTVRP in Violation of OPA 90 and Its Regulations.
20. On December 19, 2019, Owner, without reference to any “exceptional
circumstances,” submitted a request to Commander Witt to deviate from the GOLDEN RAY’s
NTVRP and replace Donjon-SMIT with T&T as the salvage and marine fighting (SMFF) provider
going forward. Again, and for undisclosed reasons, Donjon-SMIT was shut out of any discussions
with Owner, Commander Witt, and the Coast Guard regarding the selection process. Two days
later, on December 21, 2019 Commander Witt, in direct violation of OPA 90 and its corresponding
regulation approved Owner’s request to deviate from the GOLDEN RAY NTVRP without any
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justification or reference to any “exceptional circumstances” as required by 33 C.F.R. § 155.4032.
This is the exact conduct that OPA 90 was designed to prohibit.
21. Astonishingly, Donjon-SMIT was removed as the SMFF services provider on the
GOLDEN RAY for each of the nineteen different services for which Donjon-SMIT was pre-
contracted under the GOLDEN RAY NTVRP. Despite multiple inquiries from Donjon-SMIT,
Commander Witt refused to articulate his reasoning for approving Owner’s deviation request and
has never explained why Donjon-SMIT was removed for all nineteen services.
I. The Coast Guard Unlawfully Delegated Its Sole Decision-Making Authority

to the GOLDEN RAY’S Owner.
22. On December 22nd, Paul Hankins, Donjon’s Vice President for Salvage
Operations, emailed Commander Witt to explain Donjon-SMIT’s concerns with the T&T plan and
to request a meeting to discuss the Commander’s unlawful deviation approval. 5 In response,
Commander Witt, who as the designated FOSC is supposed to be sole decision-maker regarding
any deviations from the NTVRP, tellingly “defer[red] to the Owner’s representatives” regarding
any meetings to discuss the deviation. 6 This is an unlawful delegation of the decision-making
authority that Congress sought to prevent under OPA 90.
23. By (1) permitting Owner to circumvent use of its pre-contracted NTVRP service
provider in favor of an open bidding process, (2) not affording Donjon-SMIT any opportunity to
explain its salvage removal plan or address any potential concerns, and (3) never providing any
5 As outlined in the detailed email, the T&T Plan is a high risk plan that costs substantially more than the Donjon-
SMIT plan and employs a removal method that has previously failed on two other occasions resulting in more
environmental harm. Moreover, T&T’s approach appears to be that if its plan does not work, there is plenty of money
to then try the Donjon-SMIT’s approach. The Coast Guard’s rejection of the safer, proven, and less expensive
approach outlined in the Donjon-SMIT plan is arbitrary, at best, and increases the likelihood of greater environmental
harm.
6 A true and correct copy of the email exchange between Donjon-SMIT and the Coast Guard is attached hereto as
Exhibit 3.
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justification for their approval of Owner’s deviation request, much less a finding of “exceptional
circumstances,” Defendants have subverted the very purpose of OPA 90 and effectively delegated
their decision-making authority back to those responsible for the disaster at issue. Moreover,
Defendants have deprived Donjon-SMIT of its contractual agreement with Owner to provide
SMFF services in addition to causing damage to Donjon-SMIT’s reputation that will directly harm
its ability to contract in the future.
24. Implementation of T&T’s large section removal plan is now imminent. On
February 5, 2020, the Unified Command announced that construction of the environmental
protection barrier will begin approximately one week from the date of this motion. 7 Soon
thereafter, T&T will commence cutting and removing sections of the GOLDEN RAY. Time is of
the essence if Defendants’ blatant violations of Donjon-SMIT’s statutory and constitutional rights
are to be remedied. 8
CAUSES OF ACTION
A. Count One: Request for Injunctive Relief.
25. Donjon-SMIT re-alleges and incorporates the above allegations as if fully set forth
herein.
26. Pursuant to Federal Rule of Civil Procedure 65, Donjon-SMIT seeks entry of a
temporary restraining order, preliminary injunction, and permanent injunction to avoid immediate
and irreparably loss, injury, and damage. As set out in Donjon-SMIT’s Motion for Injunctive
Relief and Brief in Support Thereof filed simultaneously with this Complaint, Donjon-SMIT has
shown substantial likelihood of success on the merits, that irreparable injury will be suffered if the
7 A true and correct copy of the Unified Command Press Release is attached hereto as Exhibit 4.
8 See Donjon-SMIT’s Motion for Injunctive Relief and Brief in Support Thereof filed simultaneously with this
Complaint.
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relief is not granted, that the threatened injury outweighs the harm the relief would inflict on the
Coast Guard, and that entry of the relief would serve the public interest.
27. The Coast Guard’s unlawful actions in violation of OPA 90 will not only cause
immediate and irreparable injury to Donjon-SMIT’s constitutional rights, Donjon-SMIT’s
contractual relationship with the Owner, and Donjon-SMIT’s reputation and ability to act as an
OPA 90 salvage provider going forward, but poses a significant risk of another substantial
discharge in the navigable waters of St. Simons Sound ending in a significantly great
environmental disaster.
B. Count Two: Violation of OPA 90 and Request for Judicial Review Under the
Administrative Procedure Act.
herein.
29. In direct violation of OPA 90 and its corresponding regulations, Defendants
approved the Owner’s request to deviate from the GOLDEN RAY NTVRP without any
justification or reference to any “exceptional circumstances” as required by 33 C.F.R. § 155.4032.
30. Defendants have subverted the very purpose of OPA 90 and effectively delegated
their decision-making authority back to those responsible for the disaster at issue.
31. Under 5 U.S.C.A. § 706, a district court may “hold unlawful and set aside agency
action, findings, and conclusions found to be-- (A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; . . . (C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right; . . . [or] (D) without observance of procedure required by
law[.]” 5 U.S.C.A. § 706(2).
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32. Defendants are willfully failing to abide by 33 C.F.R. § 155.4032, which states that
a FOSC may only approve the use of a resource provider not listed in the NTVRP “under
exceptional circumstances” where such approval “would best affect a more successful response.”
33. Additionally, Defendants are willfully failing to abide by 33 U.S.C.A. §
1321(c)(3)(B), which states that a FOSC may only deviate from the applicable NTVRP if he
determines that the “deviation from the NTVRP would provide for a more expeditious or effective
response to the spill or mitigation of its environmental effects.”
34. Instead, Defendants, acting arbitrarily and capriciously, in excess of their statutory
authority, and without observance of procedure required by law, approved Owner’s deviation from
the NTVRP.
35. Donjon-SMIT respectfully requests this Court, through its authority under 5
U.S.C.A. § 706, hold unlawful and set aside Defendants’ approval of Owner’s deviation from the
NTVRP.
C. Count Three: Violation of Procedural and Substantive Due Process.
herein.
37. 42 U.S.C. § 1983 provides a cause of action against any person “who under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws[.]”
38. Under the Fifth Amendment of the U.S. Constitution, no person shall “be deprived
of life, liberty, or property, without due process of law[.]”
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39. Defendants, acting in their official capacity, intentionally violated Donjon-SMIT’s
procedural and substantive due process rights under § 1983 and the Constitution.
40. Specifically, 33 C.F.R. § 155.4032 states that a FOSC may only approve the use of
a resource provider not listed in the NTVRP “under exceptional circumstances” where such
approval “would best affect a more successful response.”
41. Instead, Defendants approved Owner’s deviation from the NTVRP without any
justification, much less a finding of “exceptional circumstances”, and without providing Donjon-
SMIT any opportunity to be heard.
42. Defendants thereby violated Donjon-SMIT’s procedural and substantive due
process rights and deprived Donjon-SMIT of its contractual agreement with Owner to provide
SMFF services in addition to causing damage to Donjon-SMIT’s reputation that will directly harm
its ability to contract in the future.
D. Count Four: Declaratory Judgment.
herein.
44. Donjon-SMIT seeks a declaratory judgment pursuant to the Declaratory Judgment
Act, 28 U.S.C. § 2201 and Fed R. Civ. P. 57, and as provided for by the Administrative Procedure
Act under 5 U.S.C. § 704.
45. Donjon-SMIT seeks this Court’s determination that:
a. Defendants’ actions with respect to their approval of the deviation from the
NTVRP were arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law;
b. Defendants’ actions with respect to their approval of the deviation from the
NTVRP were contrary to Donjon-SMIT’s constitutional rights and
Defendants’ constitutional powers or privileges;
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c. Defendants’ actions with respect to their approval of the deviation from the
NTVRP were in excess of their statutory jurisdiction, authority, and/or
limitations; and
d. Defendants’ actions with respect to their approval of the deviation from the
NTVRP were without observation or procedure as required by law.
46. This Court has the authority to grant declaratory relief under Fed. R. Civ. P. 57 and
28 U.S.C. § 2201 as an actual controversy exists between the parties as to Defendants’ actions and
Donjon-SMIT’s rights with respect to Defendants’ approval of Owner’s NTVRP deviation request.
47. Donjon-SMIT respectfully requests this Court enter an Order determining
Defendants’ actions exceeded the scope of their authority, etc., as specifically outlined above.
WRIT OF MANDAMUS
herein.
49. Under 28 U.S.C. § 1361, “[t]he district court shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or any
agency therefor to perform a duty owed to the plaintiff.”
50. The purpose of 28 U.S.C. § 1361 is to prevent federal officials from acting outside
the permissible scope of their discretion, and it seeks to prevent such abuse by giving federal courts
the authority to compel federal officials to perform acts required of them or, conversely, to refrain
from acts which they are not authorized to perform.
51. Here, Defendants failed to abide by 33 C.F.R. § 155.4032, which states that a FOSC
may only approve the use of a resource provider not listed in the NTVRP “under exceptional
circumstances” where such approval “would best affect a more successful response.”
52. Additionally, Defendants failed to abide by 33 U.S.C.A. § 1321(c)(3)(B), which
states that a FOSC may only deviate from the applicable NTVRP if he determines that the
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“deviation from the NTVRP would provide for a more expeditious or effective response to the
spill or mitigation of its environmental effects.”
53. Instead, Defendants, without justification, without evidence of “exceptional
circumstances,” and acting arbitrarily, capriciously and in bad faith, approved Owner’s deviation
from the NTVRP.
54. Donjon-SMIT has a clear right to relief that is sought in this Complaint, and there
is no other adequate remedy available to Donjon-SMIT.
55. Donjon-SMIT respectfully requests this Court enter a writ of mandamus
compelling Defendants to reverse its approval of Owner’s deviation from the NTVRP.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Donjon-SMIT, LLC respectfully requests that this Court:
a. Enter a temporary restraining order, preliminary injunction, and permanent

injunction against the Coast Guard as requested herein.
b. Hold unlawful and set aside Defendants’ actions under the Administrative
Procedure Act as requested herein;
c. Enter judgment against Defendants for violating Donjon-SMIT’s procedural and

substantive due process rights;
d. Enter a declaratory judgment against Defendants as requested herein;
e. Enter a writ of mandamus against Defendants as requested herein;
f. All such other relief at law or in equity as this Court deems appropriate.
[Signatures on following page]
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DATED: February 13, 2020
Respectfully submitted,
TAYLOR, ODACHOWSKI, SCHMIDT &

CROSSLAND, LLC
/s/ Joseph R. Odachowski

Joseph R. Odachowski
Georgia State Bar No. 549470
300 Oak Street, Suite 200
St. Simons Island, GA 31522
(912) 634-0955 – Telephone
(912) 638-9739 – Facsimile
[email protected]
ATTORNEYS FOR PLAINTIFF

DONJON-SMIT, LLC
OF COUNSEL:
CLARK HILL PLC
/s/ Garney Griggs

Garney Griggs
Texas State Bar No. 08491000
Clifford Bowie Husted
Gregorio Flores
909 Fannin, Suite 2300
Houston, TX 77010
(713) 951-5600 – Telephone
(713) 951-5660 – Facsimile
[email protected]
[email protected]
[email protected]
ATTORNEYS FOR PLAINTIFF

DONJON-SMIT, LLC
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Civil Lawsuit Against "GOLDEN RAY'S Owner/responsible Party"

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Civil Lawsuit Against "GOLDEN RAY'S Owner/responsible Party"

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Case 2:20-cv-00011-LGW-BWC Document 1 Filed 02/13/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

ADMIRAL KARL L. SCHULTZ, CAPTAIN CIVIL ACTION NO. ______

PLAINTIFF DONJON-SMIT, LLC’S

Plaintiff Donjon-SMIT, LLC (“Donjon-SMIT”) files this Verified Complaint, Writ of

Guard (“Coast Guard”), and in support thereof state as follows:

1. Plaintiff Donjon-SMIT, LLC (“Donjon-SMIT”) files this Complaint along with an

enforcement of OPA 90 and to avert an imminent environmental catastrophe.

2. Donjon-SMIT is a maritime salvage, firefighting, and lightering company that is

registered as a limited liability company in the State of Delaware.

3. Defendant Admiral Karl L. Schultz (“Admiral Schultz”) is the Commandant of the

5. Commander Norm C. Witt (“Commander Witt”) is a Coast Guard Commander, the

Pennsylvania Avenue, NW Washington, DC 20530-0001.

6. Commander Matthew J. Baer (“Commander Baer”) is a Coast Guard Commander

JURISDICTION AND VENUE

7. This Court has jurisdiction pursuant to the following statutes:

a. 28 U.S.C. § 1331, which provides district courts with original jurisdiction

b. 28 U.S.C § 1346, which provides district courts with original jurisdiction

c. 33 U.S.C. § 1321(e)(2) of the Clean Water Act, which provides district

8. Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(B).

9. This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C. §§

2201 and 2202.

A. The GOLDEN RAY Capsizes in St. Simons Sound.

to avoid environmental disaster.

Photograph of the capsized GOLDEN RAY vessel in St. Simons Sound

B. Congress Requires Non-Tank Vessel Response Plans Under OPA 90.

C.F.R. § 155.4032 (emphasis added). Section 155.4032 provides:

33 C.F.R. § 155.4032(a) (emphasis added).

C. The GOLDEN RAY’s NTVRP Under OPA 90.

different salvage and marine firefighting services. Donjon-SMIT is a highly-experienced marine

D. Donjon-SMIT Provides Life Saving Emergency Services on the GOLDEN

Donjon-SMIT laying down rocks to stabilize the GOLDEN RAY

E. Donjon-SMIT Submits a Proven Salvage Plan Focused on Mitigating the

into St. Simons Sound.

significant environmental risk. Additionally, Donjon-SMIT proposed establishing a small 4.6-

implement its plan today.

F. The Owner subverts OPA 90 and Requests that Donjon-SMIT be replaced by

potentially limit it exposure.

T&T’s unproven, high risk plan.

G. T&T’s High-Risk Plan Will Likely Result in an Environmental Disaster in

T&T’s proposal is also significantly more expensive than Donjon-SMIT’s.

H. The Coast Guard Permitted an Unlawful Deviation from GOLDEN RAY’s

20. On December 19, 2019, Owner, without reference to any “exceptional

justification or reference to any “exceptional circumstances” as required by 33 C.F.R. § 155.4032.

This is the exact conduct that OPA 90 was designed to prohibit.

I. The Coast Guard Unlawfully Delegated Its Sole Decision-Making Authority

to request a meeting to discuss the Commander’s unlawful deviation approval. 5 In response,

authority that Congress sought to prevent under OPA 90.

its ability to contract in the future.

24. Implementation of T&T’s large section removal plan is now imminent. On

A. Count One: Request for Injunctive Relief.

immediate and irreparable injury to Donjon-SMIT’s constitutional rights, Donjon-SMIT’s

29. In direct violation of OPA 90 and its corresponding regulations, Defendants

justification or reference to any “exceptional circumstances” as required by 33 C.F.R. § 155.4032.

law[.]” 5 U.S.C.A. § 706(2).

33. Additionally, Defendants are willfully failing to abide by 33 U.S.C.A. §

response to the spill or mitigation of its environmental effects.”

C. Count Three: Violation of Procedural and Substantive Due Process.

by the Constitution and laws[.]”