Conservation Council for Haw. v. Nat'l Marine Fisheries Serv.

• Decision Date: 31 March 2015
• Docket Number: Civil Nos. 13–00684 SOM/RLP,14–00153 SOM/RLP.
• Parties: CONSERVATION COUNCIL FOR HAWAII, et al., Plaintiffs, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. Natural Resources Defense Council, Inc., et al., Plaintiffs, v. National Marine Fisheries Service, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

97 F.Supp.3d 1210

CONSERVATION COUNCIL FOR HAWAII, et al., Plaintiffs

v.NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

Natural Resources Defense Council, Inc., et al., Plaintiffs

v.National Marine Fisheries Service, et al., Defendants.

Civil Nos. 13–00684 SOM/RLP

14–00153 SOM/RLP.

United States District Court, D. Hawai‘i.

Signed March 31, 2015.

David L. Henkin, Earthjustice Legal Defense Fund, Honolulu, HI, Jennifer A. Sorenson, Nancy S. Marks, Stephen Zak Smith, Natural Resources Defense Council, San Francisco, CA, for Plaintiffs.

Harry Yee, Office of the United States Attorney, Honolulu, HI, Kevin W. McArdle, Ty Bair, U.S. Department of Justice, Washington, DC, Colin A. Yost, Law Office of Colin A. Yost, Honolulu, HI, for Defendants.

AMENDED ORDER GRANTING CONSERVATION COUNCIL'S MOTION FOR SUMMARY JUDGMENT, GRANTING NRDC'S MOTION FOR SUMMARY JUDGMENT, DENYING NRDC'S MOTION FOR LEAVE TO SUBMIT EXTRA–RECORD EVIDENCE, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE

SUSAN OKI MOLLWAY, Chief Judge.

I. INTRODUCTION.

This case involves challenges by environmental groups to federal government actions affecting vast areas of the Pacific Ocean and the marine life in those areas. Before the court is a motion for summary judgment filed in Civil No. 13–00684 by Plaintiffs Conservation Council for Hawaii, Animal Welfare Institute, Center for Biological Diversity, and Ocean Mammal Institute (collectively, “Conservation Council”), and a separate motion for summary judgment filed in Civil No. 14–00153 by Plaintiffs Natural Resources Defense Council, Inc., Cetacean Society International, Animal Legal Defense Fund, Pacific Environment and Resources Center, and Michael Stocker (collectively, “NRDC”). The cases were consolidated by stipulation, but the stipulation provided that separate summary judgment motions could be filed by the parties in each case. See ECF Nos. 22, 23, 24 (ECF Nos. cited in this order refer to the docket sheet in Civil No. 13–00684). The court grants both summary judgment motions.

The government actions that are challenged in this case permit the Navy to conduct training and testing exercises even if they end up harming a stunning number of marine mammals, some of which are endangered or threatened. Searching the administrative record's reams of pages for some explanation as to why the Navy's activities were authorized by the National Marine Fisheries Service (“NMFS”), this court feels like the sailor in Samuel Taylor Coleridge's “The Rime of the Ancient Mariner” who, trapped for days on a ship becalmed in the middle of the ocean, laments, “Water, water, every where, Nor any drop to drink.”

II. FACTUAL BACKGROUND.

The issues in this case are best understood by examining specific details, but the court begins by providing a broad overview. This introductory section thus has the limited purpose of providing the context for the challenges raised by Conservation Council and NRDC to the actions taken by NMFS and the Navy. Illustrations will be provided in connection with the court's analysis of specific challenges.

The Navy proposed to conduct training and testing activities in an area of the Pacific Ocean known as the Hawaii–Southern California Training and Testing (“HSTT”) Study Area. This area includes (1) the Southern California Range Complex, consisting of San Diego Bay and approximately 120,000 square nautical miles of ocean between Dana Point, California, and San Diego, California; (2) the Hawaii Range Complex, consisting of approximately 2.7 million square nautical miles of ocean around the Hawaiian Islands; (3) Silver Strand Training Complex, on and adjacent to the Silver Strand, an isthmus between San Diego Bay and the Pacific Ocean; (4) pierside locations in Hawaii and Southern California; and (5) a transit corridor between Southern California and Hawaii.See ECF No. 70, PageID # 13556; ECF No. 79, PageID # 14041. Thirty-nine marine mammal species have been identified as occupying the HSTT Study Area, eight of which are endangered and one of which is threatened under the Endangered Species Act (“ESA”). See ECF No. 66–19, PageID # 10214.

In 2010, the Navy began the process of reviewing the environmental impact of its proposed activities and invited NMFS to act as a cooperating agency in the preparation of the environmental impact statement (“EIS”). The Navy ultimately issued its corrected Final Environmental Impact Statement (“FEIS”) on August 30, 2013, and NMFS adopted that FEIS on December 5, 2013. ECF No. 66–18, PageID # 10201; ECF 66–21, PageID # 10267. While working on the FEIS, the Navy was also consulting with NMFS on compliance with the Endangered Species Act and was applying for Letters of Authorization from NMFS under the Marine Mammal Protection Act (“MMPA”) that would allow the Navy to take, incidental to the Navy's training and testing activities, a certain number of marine mammals in the HSTT Study Area.

Under the MMPA, “to take” means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. § 1362(13). The Navy's proposed activities included “[s]onar use, underwater detonations, airguns, pile driving and removal, and ship strike,” which the NMFS viewed as “the stressors most likely to result in impacts on marine mammals that could rise to the level of harassment, thus necessitating MMPA authorization.” ECF No. 66–19, PageID # 10209.

The Navy sought authorization for the incidental take of the HSTT Study Area's thirty-nine species of marine mammals by Level B harassment. Id. at PageID # 10208. As applied to military readiness activities, Level B harassment is “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)(ii). In addition, the Navy sought authorization for the incidental take of twenty-four of the thirty-nine species of marine mammals by Level A harassment or mortality. ECF No. 66–19, PageID # 10208. Level A harassment is “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)(i).

In December 2013, pursuant to the MMPA, NMFS issued its Final Rule applicable to the period from December 2013 through December 2018, and issued Letters of Authorization permitting the Navy to take marine mammals in the HSTT Study Area during that period. In summary, NMFS determined that the effect of the activities proposed by the Navy would have a “negligible impact” on all the marine mammal species and stocks that would be affected. See ECF No. 66–19, PageID # 10249. NMFS set authorized take levels for Level A and Level B harassment for each such species or stock. The authorized take levels were the levels requested in the Navy's application and included authorized mortalities. See id. at PageID # s 10244–48.

Also in December 2013, the NMFS–ESA Cooperation Division issued a final Biological Opinion concerning the Navy's activities. The Biological Opinion included NMFS's finding of “no jeopardy” to endangered whale species, authorization for an “unspecified number” of takes of turtles by vessel strikes, and a finding of “no jeopardy” to turtles.

Amended versions of the December 2013 LOAs and Biological Opinion subsequently issued. See ECF No. 67–22, PageID # s 12766–69; ECF No. 67–23, PageID # s 12784–87; ECF No. 67–19.

Conservation Council has sued NMFS, which falls under the jurisdiction of the Department of Commerce, and other related parties, seeking judicial review under the Administrative Procedure Act (“APA”) of administrative decisions that Conservation Council asserts violate the National Environmental Policy Act (“NEPA”), the MMPA, and the ESA. See ECF No. 78. NRDC has sued NMFS and related federal officials as well as the Navy, similarly seeking judicial review under the APA for alleged violations of the MMPA and the ESA. See ECF No. 73. Plaintiffs in both cases seek summary judgment on all their claims.

For their part, Defendants contend that, having complied with the requirements of NEPA, the MMPA, and the ESA, they are entitled to summary judgment in their favor in both actions. See ECF No. 68; ECF No. 71.

III. STATUTORY FRAMEWORK.

This case requires analysis of four statutory schemes.

A. MMPA.

The MMPA was enacted to address concern that “certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities.” 16 U.S.C. § 1361(1). Congress noted that “such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.” 16 U.S.C. § 1361(2).

The MMPA imposes a general prohibition on the “taking” of marine mammals unless the taking falls under a statutory exception. See 16 U.S.C. § 1371(a).

One statutory exception to the prohibition on the taking of marine mammals permits “citizens of the United States who engage in a specified activity (other than commercial fishing) within a specified geographical region” to take “small numbers of marine mammals of a species or population stock” during “periods of not more than five consecutive years each” if the Secretary¹ finds that “the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses.” 16 U.S.C. § 1371(a)(5)(A)(i).

Congress amended the MMPA to exempt military readiness activities from the “specified...