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

• Decision Date: 01 October 2013
• Docket Number: No. 12–15680.,12–15680.
• Citation: 733 F.3d 1106
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs/Appellants, v. UNITED STATES DEPARTMENT OF the NAVY, et al., Defendants/Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

733 F.3d 1106

DEFENDERS OF WILDLIFE, et al., Plaintiffs/Appellants,

v.UNITED STATES DEPARTMENT OF the NAVY, et al., Defendants/Appellees.

No. 12–15680.

United States Court of Appeals,Eleventh Circuit.

Oct. 1, 2013.

Dana F. Braun, Callaway Braun Riddle & Hughes, PC, Savannah, GA, Catherine M. Wannamaker, Southern Environmental Law Center, Atlanta, GA, Sierra B. Weaver, Defenders of Wildlife, Stephen E. Roady Earthjustice, Washington, DC, Taryn G. Kiekow, Stephen Zak Smith, Natural Resources Defense Council, Santa Monica, CA, for Plaintiffs/Appellants.

Michael Thomas Gray, U.S. Department Of Justice C/O Us Army Corps of Engineers Office of Counsel, Jacksonville, FL, Joanna K. Brinkman, Kevin W. McArdle, Guillermo A. Montero, Usdoj Environmental & Natural Resources Division, Washington, DC, Kenneth Duncan Crowder, Edward J. Tarver, U.S. Attorney's Office, Savannah, GA, for Defendants/Appellees.

Appeal from the United States District Court for the Southern District of Georgia. D.C. Docket No. 2: 10–cv–00014–LGW–JEG.

Before TJOFLAT and WILSON, Circuit Judges, and COOGLER,^* District Judge.

COOGLER, District Judge:

I. INTRODUCTION

Appellants, 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 (hereinafter, “Appellants”), appeal the district court's grant of summary judgment in favor of Appellees, the United States Department of the Navy, Secretary of the Navy, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, and Secretary, United States Department of Commerce. In this appeal, Appellants challenge the United States Department of the Navy's (“the Navy's”) decision to install and operate an instrumented Undersea Warfare Training Range (“USWTR” or “the range”) fifty nautical miles offshore of the Florida/Georgia border in waters adjacent to the only known calving grounds of the endangered North Atlantic right whale, and the National Marine Fisheries Service's (“NMFS's”) biological opinion assessing the impacts of the USWTR on threatened and endangered species. This action is predicated on alleged violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”), the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA”), and the Administrative Procedure Act, 5 U.S.C. §§ 701–706 (“APA”), in analyzing and approving the USWTR. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

II. BACKGROUNDA. The Navy's Need for the USWTR

The Navy has used instrumented undersea ranges to train its personnel since the 1960s. These ranges allow shore-based operators to evaluate the performance of the participants and to provide feedback in both real time and later replays of the exercises. In 1996, the Navy published a Notice of Intent to build such a range somewhere in the Atlantic to more effectively train its personnel in shallow-water anti-submarine warfare. Training in shallow water is important because the Navy's Atlantic fleet is deployed to many shallow-water environments worldwide, and this range would be the first designed especially for shallow-water training.

B. The National Environmental Policy Act

The Navy then began the process of complying with its statutory mandates, including the two environmental statutes relevant here, NEPA and the ESA. NEPA was designed to infuse environmental considerations into government decision-making. See40 C.F.R. § 1501.1 (explaining NEPA's purpose). See also Wilderness Watch & Pub. Emps. for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1094 (11th Cir.2004) (“NEPA essentially forces federal agencies to document the potential environmental impacts of significant decisions before they are made, thereby ensuring that environmental issues are considered by the agency and that important information is made available to the larger audience that may help to make the decision or will be affected by it.”) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989)). “NEPA imposes procedural requirements rather than substantive results, and so long as an agency has taken a ‘hard look’ at the environmental consequences, a reviewing court may not impose its preferred outcome on the agency.” Wilderness Watch, 375 F.3d at 1094 (citing Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir.1996)).

To ensure a well-considered decision, NEPA requires that when a federal agency proposes a “major Federal action[ ] significantly affecting the quality of the human environment,” it must prepare and file an environmental impact statement (“EIS”) that examines the environmental impact or impacts of the proposed action, compares the action to other alternatives, and discusses means to mitigate any adverse environmental impacts. 42 U.S.C. § 4332(C). Preparing an EIS requires several steps, the first of which is determining whether one is needed. If the agency finds, based on a less formal “environmental assessment,” that the proposed action will not significantly affect the environment, the agency is permitted to issue a “Finding of No Significant Impact” in lieu of an EIS. 40 C.F.R. §§ 1501.4, 1508.9, 1508.13. However, when an EIS is required, the federal agency first prepares a draft EIS and solicits public comments. Id. § 1503.1. The agency must then “assess and consider” the comments in drafting the final EIS and publish a notice of availability of the final EIS in the Federal Register. Id. §§ 1503.4, 1506.10(b). When the agency makes its final decision regarding the proposed action and alternatives discussed in the final EIS, the agency prepares “a concise public record of decision” identifying the agency's action and the alternatives it considered. Id. § 1505.2. The record of decision (“ROD”) states what the decision was, identifies all alternatives considered by the agency, and states whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why not. Id. After issuing the ROD, the agency is then authorized to implement its decision. Id. § 1506.1.

C. The Navy's NEPA Compliance

The Navy originally considered four alternative sites for the range: the Gulf of Maine, near Wallops Island, Virginia, off the coast of North Carolina, and offshore of Charleston, South Carolina. Pursuant to NEPA, the Navy released a draft EIS in 2005 proposing to build the USWTR off the coast of North Carolina but then issued a revised draft EIS three years later, changing the proposed range site to fifty nautical miles offshore of Jacksonville, Florida, in a Navy training area known as the Jacksonville Operating Area. Several factors prompted the Navy's decision to relocate the proposed site for the range. The Navy had closed the Naval Air Station in Brunswick, Maine and had relocated several maritime aircraft squadrons to Naval Air Station Jacksonville in 2005, with the result that five fleet squadrons, one fleet replacement squadron, and all of the East Coast anti-submarine warfare helicopters were then based at either Naval Air Station Jacksonville or Naval Station Mayport. Further, Florida has been a fleet concentration area since before World War II and has one of the largest Atlantic fleet assemblages of ships, aircraft and personnel.

The Navy concluded that co-locating the range facility in the same area as the primary user represented the greatest efficiency in applying limited resources to support training. The Navy also concluded that locating the proposed range in the Jacksonville Operating Area would provide the required shallow-water environment and would be available for training given the climate. Finally, the Navy has conducted anti-submarine warfare training in the Jacksonville Operating Area for more than sixty years with its training there already the subject of previous comprehensive environmental review and analyses pursuant to NEPA and the ESA.

After soliciting and receiving public comment on the revised draft EIS, the Navy issued its final EIS in 2009 for the installation and operation of the range at the Jacksonville Operating Area. The range will consist of undersea, fiber optic telecommunications cables and up to 300 nodes over a 500–square–nautical–mile area of ocean. The nodes will transmit and receive acoustic signals from ships and submarines operating within the range, thus allowing the position of exercise participants to be determined and stored electronically for real-time feedback and future evaluation. The latest projections are that construction will begin in fiscal year 2014, with the range partially functional in 2018 and fully operational in 2023.

The Navy's final EIS fully analyzed the environmental impacts of both constructing and operating the range. In analyzing the impacts of constructing the range, the Navy took a hard look at that portion of the critical habitat for the North Atlantic right whale, an endangered species, which is located off the coast of Florida, 35 nautical miles inshore of the proposed range. Only 300 to 400 North Atlantic right whales remain, and each fall, females return to the waters off Georgia and Florida to give birth to their calves before migrating north to their feeding grounds in the spring. Because the area offshore Georgia and Florida is the species' only known calving ground, regulations have been adopted in adjacent waters to protect right whales from threats of fishing gear entanglement and ship collisions. The Navy's EIS noted that the only construction that will take place in the right whale's critical habitat is installation of the trunk cable connecting the range with the onshore cable...