Defenders of Wildlife v. U.S. Dep't of the NNAVY

• Decision Date: 06 September 2012
• Docket Number: No. CV 210–014.,CV 210–014.
• Citation: 895 F.Supp.2d 1285
• Parties: DEFENDERS OF WILDLIFE, The Humane Society of the United States, Whale and Dolphin Conservation Society, Natural Resources Defense Council, Center for a Sustainable Coast, Florida Wildlife Federation, South Carolina Coastal Conservation League, North Carolina Wildlife Federation, Animal Welfare Institute, Ocean Mammal Institute, Citizens Opposing Active Sonar Threats, and Cetacean Society International, Plaintiffs, v. UNITED STATES DEPARTMENT OF the NAVY, Ray Mabus, Secretary of the Navy, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, and Gary Locke, Secretary of Commerce, Defendants.
• Court: U.S. District Court — Southern District of Georgia

895 F.Supp.2d 1285

DEFENDERS OF WILDLIFE, The Humane Society of the United States, Whale and Dolphin Conservation Society, Natural Resources Defense Council, Center for a Sustainable Coast, Florida Wildlife Federation, South Carolina Coastal Conservation League, North Carolina Wildlife Federation, Animal Welfare Institute, Ocean Mammal Institute, Citizens Opposing Active Sonar Threats, and Cetacean Society International, Plaintiffs,

v.UNITED STATES DEPARTMENT OF the NAVY, Ray Mabus, Secretary of the Navy, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, and Gary Locke, Secretary of Commerce, Defendants.

No. CV 210–014.

United States District Court,

S.D. Georgia,

Brunswick Division.

Sept. 6, 2012.

Catherine M. Wannamaker, Atlanta, GA, Dana F. Braun, Callaway, Braun, Riddle & Hughes, PC, Savannah, GA, Sierra B. Weaver, Defender of Wildlife, Anna E.J. Frostic, The Humane Society of the United States, Stephen E. Roady, Washington, DC, Stephen Zak Smith, Taryn G. Kiekow, Natural Resources Defense Counsel, Santa Monica, CA, for Plaintiffs.

Kevin W. McArdle, Guillermo A. Montero, Joanna Kathryn Brinkman, U.S. Dept. of Justice, Washington, DC, Ruth H. Young, U.S. Attorney's Office, Savannah, GA, for Defendants.

ORDER

LISA GODBEY WOOD, Chief Judge.

Presently before the Court are Cross–Motions for Summary Judgment filed by the Plaintiffs and the Defendants in this action. See Dkt. Nos. 73, 76. Upon due consideration, Defendants' Motion for Summary Judgment is GRANTED, and Plaintiffs' Motion for Summary Judgment is DENIED.

INTRODUCTION

This action is predicated on alleged violations by one or more of the Defendants under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. Plaintiffs are twelve environmental groups ¹ who challenge the United States Department of Navy's (“Navy”) decision to install an Undersea Warfare Training Range (“USWTR”) off the coast of Jacksonville, Florida. At the heart of this dispute is the fact that the USWTR is to be located offshore of federally-designated critical habitat and adjacent to the only known calving grounds of the highly endangered North Atlantic right whale.

FACTUAL BACKGROUND

The USWTR's stated purpose is to enable the Navy to train effectively in a shallow water environment at a suitable location for Atlantic Fleet anti-submarine warfare (“ASW”) capable units. DON181854.² It will enhance the Navy's ASW training exercises by providing real-time feedback to the units engaged in those training activities. Dkt. No. 76 at 6. With this purpose in mind, the Navy has been planning the development of the USWTR for well over a decade.

On May 13, 1996, the Navy first, published its Notice of Intent to prepare an environmental impact statement (“EIS”) for an undersea warfare range somewhere along the east coast. Dkt. No. 73 at 3. The four alternative sites originally considered were the Gulf of Maine, Wallops Island, Virginia, off the coast of North Carolina, and offshore of Charleston, South Carolina. Dkt. No. 73 at 3. In 2005, the Navy released a draft EIS (“DEIS”) proposing to locate the USWTR off the coast of North Carolina. Id. However, in September 2008, the Navy changed course and released a new DEIS changing the preferred alternative from North Carolina to the present site offshore of the Georgia/Florida border. Id.

On June 26, 2009, after evaluating public comments on its revised DEIS, the Navy issued a Final EIS (“FEIS”) for the installation and the operation of the USWTR at the preferred site in the Jacksonville Operating Area. DON181852. The Navy also prepared a Biological Assessment and initiated formal consultation with the National Marine Fisheries Service (“NMFS”) pursuant to the ESA. DON160498; DON185886. The NMFS's Biological Opinion followed on July 28, 2009. NMFS AR 1731.³ Finally, on July 31, 2009, the Navy issued its Record of Decision (“ROD”) approving construction of the USWTR at the preferred site within the Jacksonville Operating Area. DON185885. Construction is expected to take at least five years to complete. Id.

The Navy has conducted ASW training in the Jacksonville Operating Area for over sixty (60) years. DON185892. The current plan is to construct the USWTR within this Jacksonville Operating Area. Dkt. No. 76 at 6. Construction of the USWTR will involve the placement of undersea cables and transducer nodes in a 500–square–nautical–mile area of the ocean. DON181854. Transducer nodes are acoustic devices that transmit and receive acoustic signals from ships and submarines operating within the USWTR, which allows the position of participants to be determined and stored electronically for both real-time and future evaluation. DON181857. This instrumented area would then be connected to the shore via a single trunk cable. DON181854. According to the Navy, this construction has not yet commenced, and will be completed no sooner than 2014. Dkt. No. 76 at 7 (citing DON185885).

The parties dispute the scope of the USWTR. The Navy argues that the USWTR will be constructed in a relatively small portion of the Navy's existing Jacksonville Operating Area. Dkt. No. 76 at 1. According to the Navy's Record of Decision: “Submarines, ships and aircraft all currently conduct ASW training in the JAX OPAREA and will be the principal users of the USWTR.” DON185886. The Navy, therefore, argues that the USWTR is “not expected to cause any significant change to training already occurring in the area.” Dkt. No. 76 at 1. Plaintiffs, in contrast, argue that the Navy's characterization of the proposed action is not accurate, as the entire point of the USWTR is to concentrate intensive ASW exercises from the vast Jacksonville Operating Area (spanning tens of thousands of square miles) into the USWTR instrumented area. Dkt. No. 80 at 2. Plaintiffs also point out that, unlike the rest of the Jacksonville Operating Area, the USWTR would involvethe installation outlined above. Id. at 3.

What is not in dispute is that the USWTR is to be constructed adjacent to the calving grounds of the North Atlantic right whale, which is “the world's most critically endangered large whale species and one of the world's most endangered mammals.” DON154895. The Southeastern United States is the only known calving ground for North Atlantic right whales and is, therefore, vital to the population. DON144853. Despite protection from commercial whaling since 1935, the remaining population has failed to fully recover. DON154895. The best current estimate of minimum population is 313 whales. Id. (citing Waring et al., 2007). Due to this fragile status, and “[b]ecause of the species' low reproduction level and small population size, even low levels of human-caused mortality can pose a significant obstacle for North Atlantic right whale recovery.” Id.

Plaintiffs' legal attack on the Navy occupies many fronts; but, at its core, Plaintiffs argue that the Navy has failed to adequately analyze the potential environmental impact the proposed USWTR will have on right whales and other protected species. Much of Plaintiffs' allegations against the Navy stems from Plaintiffs' belief that the Navy has recommended the Jacksonville site for the USWTR without analyzing both the installation and operation phases of the action. Dkt. No. 73. While Plaintiffs certainly argue that the Navy's installation analysis was flawed, the heart of Plaintiffs' allegations is that the Navy has committed to this site without analyzing the operations phase of the project. Id.

Specifically, Plaintiffs contend that the Navy selected the Jacksonville site without the surveys necessary to assess densities for marine mammals, including the densities of right whales in the area. Dkt. No. 73 at 4. In this regard, Plaintiffs note that right whale scientists and the Georgia Department of Natural Resources have expressed concerns with the Navy's plans to go forward without such information. Id. at 4–5. In a similar vein, Plaintiffs charge the Navy with segmenting its analysis by only conducting such research after it released its FEIS selecting Jacksonville as its preferred alternative. Id. at 5. The Navy, for its part, disputes this contention and maintains that it conducted the appropriate analysis required under federal law.

Plaintiffs' argument of unlawful segmentation also applies to the Navy's ROD, where the Navy only authorizes the installation phase of the USWTR. Plaintiffs maintain that the ROD has the practical effect of approving the $100 million dollar construction of the range, while delaying an analysis over its use. Dkt. No. 73 at 7. The Navy responds that these segmentation allegations are unfounded, as the FEIS and ROD both fully analyzed the operations and installation phases of the USWTR. The Navy also points out that the ROD does not approve the operations component because of timing considerations, not due to a lack of analysis.⁴

As for the NMFS, Plaintiffs argue that it was derelict of its agency responsibilities.Specifically, Plaintiffs argue that the 2009 Biological Opinion issued by the NMFS is legally deficient. Dkt. No. 73 at 7. This allegation is based on Plaintiffs' belief that the NMFS's analysis of the USWTR was incomplete and that it irrationally makes findings not supported by the facts before the agency. Id.

In accordance with Plaintiffs' contention that Defendants are acting in violation of the ESA, NEPA, and APA, they brought suit in this Court on January 28, 2010. Dkt. No. 1. Plaintiffs' Original Complaint was followed shortly thereafter with an Amended Complaint. Dkt. No. 24. In this Amended Complaint, Plaintiffs ask the Court to, among other things, (1) declare that the Navy Defendants have violated both NEPA and the ESA, (2) declare that the NMFS Defendants have violated the APA and ESA, (3) vacate the Navy's...