Natural Res. Def. Council, Inc. v. Pritzker, 14–16375

Citation828 F.3d 1125
Decision Date15 July 2016
Docket NumberNo. 14–16375,14–16375
PartiesNatural Resources Defense Council, Inc. ; Humane Society of the United States; Cetacean Society International ; Ocean Futures Society; Jean–Michel Cousteau; Michael Stocker, Plaintiffs–Appellants, v. Penny Pritzker, Secretary, U.S. Department of Commerce; National Marine Fisheries Service; Eileen Sobeck, Assistant Administrator for Fisheries ; Kathryn D. Sullivan, Administrator of the National Oceanic and Atmospheric Administration; Ray Mabus, Secretary of the Navy; Jonathan Greenert, Admiral, Chief of Naval Operations, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Michael E. Wall (argued), Natural Resources Defense Council, San Francisco, California; Joel R. Reynolds and Giulia C.S. Good Stefani, Natural Resources Defense Council, Santa Monica, California; Sara C. Tallman, Natural Resources Defense Council, Chicago, Illinois; Barbara J. Chisholm, Altshuler Berzon LLP, San Francisco, California; for PlaintiffsAppellants.

Emily Polachek (argued), Kevin W. McArdle, Ty Bair, J. David Gunter II, and Andrew C. Mergen, Trial Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, Department of Justice, Washington, D.C.; for DefendantsAppellees.

Before: John T. Noonan, Ronald M. Gould, and Michelle T. Friedland, Circuit Judges.

OPINION

GOULD

, Circuit Judge:

This appeal presents a challenging question relating to the proper scope under the Marine Mammal Protection Act (MMPA) of mitigation measures required to protect marine mammals when the responsible federal agency, the National Marine Fisheries Service (NMFS), seeks to approve incidental “take” relating to military readiness activities. The appeal concerns the Navy's peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (SURTASS LFA or “LFA sonar”).1 Congress has required that NMFS set limitations on activities that may cause “take”—i.e. harm to marine mammals—such as military readiness activities, to reduce their impacts to the least practicable level.2 The question here is whether NMFS correctly authorized the incidental take of marine mammals in connection with the Navy's use of LFA sonar for training, testing, and routine operations. NMFS determined that the incidental take of a specified number of marine mammals by use of LFA sonar would have a negligible impact on the marine mammal species, and Plaintiffs do not appeal that determination. Plaintiffs appeal only the district court's conclusion that NMFS's mitigation measures satisfied the MMPA's least practicable adverse impact standard.3

The district court granted summary judgment to Defendants on the issue of MMPA compliance. It held that “[e]ven if the impact on the population is negligible under 16 U.S.C. § 1371(a)(5)(A)(i)(I)

, the agency could still impose mitigation that would further reduce the impact on the population to the least practicable [level] under 16 U.S.C.§ 1371(a)(5)(A)(i)(II)(aa).” The district court further held that [t]he requirement to adopt measures to ensure the ‘least practicable adverse impact’ on marine mammals is ‘a stringent standard,’ and that though the agency has discretion to choose among possible mitigation measures, it cannot exercise that discretion to vitiate that stringent standard. We agree with those principles. But, because we disagree with the district court's methodology and with its conclusion that the least practicable adverse impact standard was satisfied, we reverse.

I

The Navy's plans for use of LFA sonar, as approved by NMFS, have gone through several iterations, resulting in increased protection for marine mammals. We have every reason to believe that the Navy has been deliberate and thoughtful in its plans to follow NMFS guidelines and limit unnecessary harassment and harm to marine mammals. But the question is whether NMFS has satisfied the Congressional mandate that mitigation measures ensure the “least practicable adverse impact” on marine mammals.

The MMPA was enacted in response to Congressional concern that marine mammal species and population stocks were in danger of extinction or depletion due to human activity. 16 U.S.C. § 1361(1)

. The MMPA aims to balance marine mammal protection with other strong but opposing interests, such as national security. To prevent marine mammal species and population stocks from diminishing “beyond the point at which they cease to be a significant functioning element in the ecosystem,” the MMPA broadly prohibits “take” of marine mammals. 16 U.S.C. §§ 1361(2), 1371. “Take” means to harass, hunt, capture, or kill any marine mammal. 16 U.S.C. § 1362(13).

There are exceptions to the MMPA take prohibition. The MMPA allows NMFS to authorize take of “small numbers” of marine mammals, incidental to a specified activity, for up to five years.4

16 U.S.C. § 1371(a)(5)(A)(i)

. NMFS may authorize such incidental take if the take meets two requirements. First, NMFS must find that the total authorized take during the five-year period “will have a negligible impact on such species or stock [.] 16 U.S.C. § 1371(a)(5)(A)(i)(I). Second, NMFS must prescribe regulations setting forth “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance[.] 16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa). The “least practicable adverse impact” standard applies both to “permissible methods of taking pursuant to” the activity causing incidental take and to “other means” of reducing incidental take. See

Evans , 279 F.Supp.2d at 1142 (NMFS's rulemaking must, among other things, “prescribe methods and means of effecting the ‘least practicable adverse impact’ on species and stock and their habitat” (quoting 16 U.S.C. § 1371(a)(5)(A) )).

In connection with peacetime activities such as use of LFA sonar for training, testing, and routine operations, Congress struck a balance to permit incidental take of marine mammals caused by deployment of LFA sonar or other techniques that might incidentally harm whales and other marine mammals, so long as the incidental take from the activity has a negligible impact on the species or stock involved, and so long as mitigation measures were fashioned to limit harm to the marine mammals to the “least practicable adverse impact.” As the agency with delegated authority to implement the MMPA, NMFS is bound by these congressional mandates.

II

Whales, dolphins, walruses, and other marine mammals rely on perceptions of underwater sound for vital biological functions such as catching prey, navigating, and communicating. The United States Navy operates LFA sonar vessels around the world for another vital purpose: to protect the nation from increasingly quiet foreign submarines. The Navy has determined that LFA sonar is the most effective way to detect potentially hostile submarines.5 LFA sonar uses a set of transmitting projectors that are suspended by a cable from an ocean surveillance ship. The projectors produce low-frequency sound pulses at an intensity of approximately 215 decibels (dB), in sequences that last 60 seconds on average. LFA sonar can detect enemy ships day and night in varied weather conditions over hundreds of miles.

LFA sonar, while beneficial to national defense, can harm many marine mammal species, particularly “low-frequency hearing specialists” such as baleen whales, but also sperm whales and pinnipeds such as seals and walruses. LFA sonar disrupts the hearing of these animals and can cause physical injury at sound levels greater than 180 dB. Effects from exposures below 180 dB can cause short-term disruption or abandonment of natural behavior patterns. These behavioral disruptions can cause affected marine mammals to stop communicating with each other, to flee or avoid an ensonified area, to cease foraging for food, to separate from their calves, and to interrupt mating. LFA sonar can also cause heightened stress responses from marine mammals. Such behavioral disruptions can force marine mammals to make trade-offs like delaying migration, delaying reproduction, reducing growth, or migrating with reduced energy reserves.

The MMPA classifies such forms of harassment in two categories: “Level A” harassment and “Level B” harassment. With respect to “military readiness activit[ies],”6 such as the Navy's use of LFA sonar, the MMPA defines Level A harassment as “any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild.” 16 U.S.C. § 1362(18)(B), (C)

. Level A harassment happens when marine mammals are exposed to sound pulses of 180 dB or greater. Level B harassment, less severe, includes “any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered.” 16 U.S.C. § 1362(18)(B), (D). Level B harassment is caused by sound levels below 180 dB. Sound intensities of 165 dB subject marine mammals to a 50% risk of Level B harassment. And sound intensities as low as 120 dB can still cause “increasing probability of avoidance and other behavioral effects.” Stated another way, Level A harassment involves activities that directly injure or are likely to injure marine mammals. By contrast, Level B harassment involves activities that interfere with normal behavioral patterns of the marine mammals, with the risk of indirect harm that creates.

NMFS most recently authorized incidental take of marine mammals from LFA sonar use for five years beginning in 2012. See Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S....

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