Natural Res. Def. Council v. Pritzker

Decision Date17 March 2014
Docket NumberNo. C -12-05380 EDL,C -12-05380 EDL
CourtU.S. District Court — Northern District of California
PartiesNATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. PENNY PRITZKER, et al., Defendants.
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
AND GRANTING IN PART AND
DENYING IN PART DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT

Plaintiffs, various environmental organizations and concerned individuals, seek injunctive relief against federal officials to limit the United States Navy's peacetime use of a low frequency sonar system for training, testing and routine operations.1 This technology, Surveillance Towed Array Sensor System ("SURTASS") Low Frequency Active Sonar ("LFA"), sends out intense sonar pulses at low frequencies that travel hundreds of miles in order to timely detect increasingly quiet enemy submarines. The proposed action in the Final Supplemental Environmental Impact Statement ("SEIS") is the Navy's employment of up to four SURTASS LFA sonar systems in the ocean. Based on current operational requirements, routine training, testing and military operations using these sonar systems could occur in the Pacific, Atlantic, and Indian Oceans, as well as the Mediterranean Sea. See SEIS ES-6.

Plaintiffs charge that the National Marine Fisheries Service ("NMFS") improperlyapproved use of SURTASS LFA in many of the world's oceans in violation of the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361-1421, the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370. Plaintiffs claim that these violations will cause irreparable injury by harassing, injuring and killing marine mammals with sensitive hearing and other sea creatures, many of them rare and endangered, including whales, dolphins, seals, sea turtles and salmon. Defendants counter that they have fully complied with the applicable laws. Defendants argue further that enjoining the peacetime use of LFA sonar would harm national security because training and testing are necessary for military readiness, even though they would still be free to use it during wartime or periods of heightened threat.

This lawsuit, the third regarding the impact of SURTASS LFA on marine mammals and other sea life, challenges NMFS's Final Rule issued in August 2012 authorizing the Navy's use of LFA sonar in the world's oceans for five years. See Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 77 Fed. Reg. 50,290 (Aug. 20, 2012). Plaintiffs allege that the 2012 Final Rule fails to ensure adequate protections for marine life and that Defendants have violated their obligations under the MMPA, the NEPA and the ESA to "engage in an informed, reasoned analysis of the LFA's effects on marine life and the best means of mitigating those harmful effects." Mot. at 2.

Before the Court are the parties' cross-motions for summary judgment. For the reasons stated in this Order, Plaintiffs' Motion for Summary Judgment is granted in part and denied in part and Defendants' Motion for Summary Judgment is granted in part and denied in part.

Factual Background

The Navy developed SURTASS LFA to improve its ability to detect quiet foreign submarines. See SEIS (NAV10686-11785) 1-2, ES-5 to ES-10, 2-1 to 2-5.2 The effectiveness of conventional submarine tracking technology in littoral areas, where future naval conflicts are mostlikely to occur, is degraded by high underwater background noise and difficult underwater acoustic propagation conditions. See SEIS 1-11. In these areas, naval forces may only have minutes to respond to hostile submarines. See NAV19928. To provide the reaction time needed to respond to the increased submarine threat and meet its long-range detection needs, the Navy investigated the use of a broad spectrum of acoustic and non-acoustic technologies, and LFA was the only system capable of providing reliable long range detection. See SEIS 1-5, ES-4 to ES-5 ("To meet this long-range submarine detection need, the U.S. Navy has investigated the use of a broad spectrum of acoustic and non-acoustic technologies. These are discussed in Subchapter 1.1.4. Of the technologies evaluated, LFA sonar is the only system capable of meeting the U.S. Navy's long-range ASW detection needs in a variety of weather conditions during the day and night. SURTASS LFA sonar is providing a quantifiable improvement in the Navy's undersea detection capabilities and therefore markedly improving the survivability of U.S. Naval forces in hostile ASW scenarios."). A Navy ship that employs LFA tows an underwater array of up to eighteen loudspeakers to generate low frequency sound waves that travel hundreds of miles in all directions underwater. See SEIS ES-7 to ES-8.

To prepare for all potential threats, the Navy must maintain anti-submarine warfare capabilities through continual training and operations in open-ocean and littoral environments. See SEIS 1-4. Without the SURTASS LFA capability, "the reaction times to enemy submarine threats would be greatly reduced and the effectiveness of close-in, tactical systems to neutralize threats would be seriously, if not fatally, compromised." SEIS 4-107, ES-23.

Marine mammals rely on sound for communicating, navigating, locating and capturing prey, and avoiding predators. See NAV24490. There are many sources of underwater sound, including shipping noise, sonar and other oceanographic communication and research, and natural phenomena such as earthquakes. See NAV17915. Man-made sound can sometimes disturb marine mammals. See id. Potential effects on marine mammals from SURTASS LFA sonar include permanent or temporary hearing loss, behavioral disruption, impaired communication, and non-auditory injuries. See SEIS ES-15. Low-frequency sources at low exposure levels and long distances can silence marine mammals, such as blue whales, significantly alter their calls, or drivethem from their habitat. See NAV19305-09 (study of seismic survey that altered blue whale communication).

In 1997-1998, the Navy conducted a Low Frequency Sound Scientific Research Program ("LFS SRP" or "SRP") regarding the immediately observable impacts of LFA technology on large whales. According to Plaintiffs, the SRP was limited in duration, scope and exposure level, and there have been new tagging technologies that have recorded the impacts on baleen whale foraging that the SRP did not detect. See Calambokidis Decl. ¶¶ 4-10. Further, although Plaintiffs point as an example to a recent study from January 2012 that found that humpback whale singing was silenced in the Stellwagen Bank National Marine Sanctuary by an intermittent, low-frequency sensor located 200 km away, this study was published after the Final Rule was published. See AR D27-32. A study from 2000 demonstrated the LFA system's ability to interfere with whale communication and breeding behavior, even at moderate intensities. See NAV28273-76. In addition, harbor porpoises and beaked whales are sensitive to man-made noise. See Weilgart Decl. ¶¶ 13, 16; AR F14510; AR F15537-40. Observed effects of low-frequency sound sources include temporary deafness, widespread habitat displacement, and startle responses in harbor porpoises. See SEIS 4-33; NAV27221-31. Sea turtles have exhibited avoidance, increased swimming and erratic behavior in response to acoustic disturbances. See SEIS 3-29, 4-25 to 4-26. Fish have also proven sensitive to high-intensity sound, with demonstrated effects ranging from widespread displacement to temporary hearing loss. See NAV22556-59; SEIS ES-13, 4-5 to 4-8, 4-14. However, although SURTASS LFA has the potential to disturb, or if not mitigated, injure, marine mammals (see AR 347), the Navy has completed over 150 SURTASS LFA missions over nearly eleven years and has not detected any resulting death or injury of any marine mammals. See SEIS 2-10, 4-42, 4-99, 4-100. Further, non-injurious, short-term behavioral disturbances observed by the system have consistently been below authorized levels. See AR C51, E68, 69, 71, G848; SEIS ES-20, ES-25-ES-26, 1-20, 2-15, 4-110, 7-24 to 7-25, 7-49, 7-54.

The 2012 Final Rule

This lawsuit challenges the five-year Final Rule published on August 20, 2012 governing the Navy's taking of marine mammals from LFA exercises for the following five years. See Takingand Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 77 Fed. Reg. 50290 (Aug. 20, 2012). The 2012 Final Rule allows for the issuance of annual Letters of Authorization ("LOAs") for up to four surveillance vessels. Id. at 50292.

The Navy must conduct operations so that no more than 12% of any marine mammal species or stock will be taken annually by Level B harassment, regardless of the number of vessels operating. AR E48, 54; 16 U.S.C. § 1362(18)(D) ("The term "Level B harassment" means . . . in the case of a military readiness activity . . . described in subparagraph (B), harassment described in subparagraph (B)(ii)."); 16 U.S.C. § 1362(18)(B)(ii) ("(B) In the case of a military readiness activity (as defined in section 315(f) of Public Law 107-314; 16 U.S.C. 703 note) . . . the term "harassment" means--. . . (ii) 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."). NMFS found that the total estimated take would have no more than a negligible impact on marine mammal species or stocks, see AR C50-58, E48-49, 69-71, and that the required mitigation complied with the "least practicable adverse impact" standard, see AR E52, 72. The 2012...

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