Cetacean Community v. Bush

• Decision Date: 07 March 2003
• Docket Number: No. CV 02-00599 DAE BMK.,CV 02-00599 DAE BMK.
• Citation: 249 F.Supp.2d 1206
• Parties: THE CETACEAN COMMUNITY, Plaintiff, v. President of the United States, George W. BUSH and United States Secretary of Defense, Donald H. Rumsfeld, Defendants.
• Court: U.S. District Court — District of Hawaii

249 F.Supp.2d 1206

THE CETACEAN COMMUNITY, Plaintiff, v. President of the United States, George W. BUSH and United States Secretary of Defense, Donald H. Rumsfeld, Defendants.

No. CV 02-00599 DAE BMK.

United States District Court, D. Hawai'i.

March 7, 2003.

Lanny Alan Sinkin, Hilo, HI, for the Cetacean Community, plaintiff.

Ann D. Navaro, Maureen Rudolph, Kristen L. Gustafson, United States Department of Justice, Environment & Natural Resources Division, Washington, DC, Silas DeRoma, Environmental and Natural Resources Division, Wildlife and Marine Resources Section, Washington, DC, for George W. Bush, President of the United States of America, Donald H. Rumsfield, United States of America Secretary of Defense, defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

DAVID ALAN EZRA, Chief Judge.

Pursuant to Local Rule 7.2(d), the court finds this matter suitable for disposition without a hearing. After reviewing Defendants' motion and the supporting and opposing memoranda, the court GRANTS Defendants' Motion to Dismiss.

BACKGROUND

The instant action involves the United States Navy's development and utilization of low frequency active sonar ("LFAS"). Defendants claim that LFAS is "the only system capable of providing sufficient detection ability" at this time. Defendants' Motion to Dismiss ("Motion"), filed Jan. 9, 2003, at 7. One LFAS system is the Surveillance Towed Array Sensor System Low Frequency Active sonar ("SURTASS LFAS"), which the United States developed to detect foreign submarines. The Navy proposed the use of SURTASS LFAS "during routine training and testing as well as the use of the system during military operations" in a regulatory process. Motion at 8 (quoting EIS at p. ES-5). The Endangered Species Act ("ESA"), Marine Mammal Protection Act ("MMPA"), and the National Environmental Policy Act ("NEPA") set the parameters for the regulatory process.

I. THE SURTASS LFAS REGULATORY PROCESS

A. NEPA

Pursuant to NEPA and Executive Order 12114, the Navy prepared and Overseas Environmental Impact Statement ("EIS"). The EIS applied to the use of SURTASS LFAS during routine training and testing. It did not address the use of the system in armed conflict or direct combat support operations, nor during periods of heightened threat conditions, as determined by the National Command Authorities. The Final EIS was published in January 2001, and the Record of Decision ("ROD") was signed by the Navy on July 16, 2002.

B. MMPA

The MMPA requires that National Marine Fisheries Service ("NMFS") conduct a notice and comment process when processing a small take request, which allows the taking of marine mammals incidental to a specified activity. See 16 U.S.C § 1371(a)(5)(A) (2002). In August 1999, the Navy submitted an application to the NMFS for a five-year small take authorization under the MMPA for each SUTASS LFAS that would allow the taking of marine mammals incidental to the employment of SURTASS LFAS during training, testing, and routine military operations. On July 16, 2002, the Final Rule governing the incidental taking of marine mammals and providing for issuance of one-year letters of authorization ("LOA") for SUTASS LFAS operations was published.

C. ESA

The Navy consulted with NMFS under Section 7 of the ESA concerning the possible incidental taking of listed species, including marine mammals, sea turtles, and fish. In a Biological Opinion, dated May 30, 2002, NMFS indicated that employment of SURTASS LFAS as implemented by the ROD may adversely affect, but is not likely to jeopardize the continued existence of, endangered and threatened species. On August 16, 2002, NMFS issued its Supplemental Biological Opinion, which constituted its opinion on the effects of the LOA.

II. THE INSTANT LITIGATION

On September 18, 2002, Plaintiff, the Cetacean Community¹ ("Plaintiff), initiated this lawsuit. See Complaint for Declaratory Relief, Preliminary Injunction, Permanent Injunction ("Complaint"), filed Sept. 18, 2002. Plaintiff brought action "because low frequency sonar presents a direct threat to the well being, health, and continued existence of members of the community." Complaint at 1! 61. In the Complaint, Plaintiff alleges three causes of action:

(1) Failure to Prepare an Environmental Impact Statement for Use of LFAS During Threat and Warfare Conditions in Violation of the NEPA and Administrative Procedure Act ("APA");

(2) Failure to Seek Letters of Authorization to Take Marine Mammals While Employing LFAS During Threat and Warfare Condition in Violation of the MMPA and APA; and

(3) Failure to Seek Consultation under the ESA Regarding the Use of LFAS During Threat and Warfare Conditions in Violation of the ESA and APA.

Plaintiff limits its Complaint to the "deployment of low frequency active sonar" "during threat and warfare conditions." Complaint at ¶62.

On January 9, 2003, Defendants President of the United States, George W. Bush and United States Secretary of Defense, Donald H. Rumsfeld (collectively, "Defendants") filed a Motion to Dismiss ("Motion"). Plaintiff opposed the Motion on February 20, 2003. See Plaintiffs Response to Defendants' Motion to Dismiss, filed Feb. 20, 2003 ("Opposition"). Defendants replied in support of their Motion on February 27, 2003. See Defendants' Reply in Support of Motion to Dismiss, filed Feb. 27, 2003 ("Reply").

STANDARD OF REVIEW

In a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiffs allegations are not presumed to be truthful, and the plaintiff has the burden of proof that jurisdiction exists. Thornhill Publishing Company, Inc. v. General Telephone & Electronics Corporation, 594 F.2d 730 (9th Cir.1979).

A motion to dismiss pursuant to Rule 12(b)(6) will be granted where the plaintiff fails to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). For the purposes of a 12(b)(6) motion, "[r]eview is limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir.1994).

A complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992) (quoting Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989)) (further citations omitted). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. See id. Conclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim. Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994).

DISCUSSION

Defendants argue that Plaintiffs complaint should be dismissed "on a variety of grounds, including lack of standing, ripeness, failure to state a claim for which relief can be granted, lack of subject matter jurisdiction, and improper venue." Motion at 2.

I. STANDING

It is well-established that a court may not craft its own interpretation of a statute if the statute is "plain and unambiguous on its face." See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). The Ninth Circuit explained that the "plain meaning" rule:

stands for the notion that if the language of a statute is clear and there is no ambiguity, then there is no need to "interpret" the language by resorting to the legislative history or other extrinsic aids. Secondly, and more importantly, the rule stands for the proposition that in the vast majority of its legislation Congress does mean what it says and thus the statutory language is normally the best evidence of congressional intent.

Church of Scientology v. United States Dep't of Justice, 612 F.2d 417, 421 (9th Cir. 1979).

Defendants argue that the plain language of the respective statutes evidence Congress's intent to deny standing to marine mammals attempting to sue under MMPA, NEPA, APA, and ESA. For the reasons stated below, the court agrees and GRANTS Defendants' Motion to Dismiss.

A. Endangered Species Act

Under the citizens' suit provision of the Endangered Species Act ("ESA"), "any person may commence a civil suit on his own behalf ... to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof ...." 16 U.S.C. § 1540(g) (2002) (emphasis added). ESA defines "person" as "an individual, corporation, partnership, trust, association, or any other private entity ...." 16 U.S.C. § 1532(13) (2002). ESA separately defines "fish and wildlife" as meaning, "any member of the animal kingdom, including without limitation any mammal, fish, bird ... amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof." 16 U.S.C. § 1532(8) (2002).

In Hawaiian Crow (Alala) v. Lujan, 906 F.Supp. 549, 552 (D.Haw.1991), this court examined whether a bird has standing to sue under ESA. This court considered the plain language of ESA and concluded that it does not authorize a bird to sue because a bird is clearly not a "person" as defined in 16 U.S.C. § 1532(13). Id. See also Coho Salmon v. Pacific Lumber Co., 30 F.Supp.2d 1231, 1239 n. 2 (N.D.Cal. 1998) (observing that, "[w]ithout delving into the vagaries of the term `entity,' the court notes that, to swim its way into federal court in this action, the coho salmon would have to battle a strong current and leap barriers greater than a waterfall or the occasional fallen tree"). For these same reasons, the court finds that the plain language of 16 U.S.C. § 1540(g) does not authorize a whale, dolphin, or porpoise to sue under ESA. The statutory language of ESA plainly evidences Congress's intent that those...