Natural Resources Defense Council, Inc. v. Evans, No. C-02-3805 EDL.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtLaporte
Citation232 F.Supp.2d 1003
PartiesNATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Donald L. EVANS, et al., Defendants.
Docket NumberNo. C-02-3805 EDL.
Decision Date31 October 2002
232 F.Supp.2d 1003
NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,
v.
Donald L. EVANS, et al., Defendants.
No. C-02-3805 EDL.
United States District Court, N.D. California.
October 31, 2002.

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Andrew B. Sabey, Robin S. Stafford, Morrison & Foerster LLP, San Francisco,

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CA, Andrew E. Wetzler, Joel R. Reynolds, Natural Resources Defense Council, Inc., Los Angeles, CA, for Plaintiffs.

Kristen L. Gustafson, Washington, DC, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

LAPORTE, United States Magistrate Judge.


 TABLE OF CONTENTS
                 Page
                 I. INTRODUCTION ................................................................... 1012
                 II. LIKELIHOOD OF PREVAILING ON THE MERITS ......................................... 1013
                 A. Scientific Background, Including Basis for 180 dB Threshold ................. 1014
                 B. Marine Mammal Protection Act ................................................ 1017
                 1. Specified Geographic Region .............................................. 1019
                 2. Small Numbers ............................................................ 1023
                 a. Statute of Limitations ................................................ 1024
                 b. Whether NMFS Acted Outside the Scope of its Authority ................. 1024
                 3. The Final Rule's Definition of "Harassment"............................... 1027
                 a. Potential to Disturb .................................................. 1028
                 b. Significance Requirement .............................................. 1028
                 c. Impact on Individual Mammals .......................................... 1030
                 4. Negligible Impact ........................................................ 1032
                 5. Mitigation and Monitoring ................................................ 1033
                 C. National Environmental Policy Act ........................................... 1037
                 1. Reasonable Alternatives Analysis ......................................... 1038
                 2. Consideration of Reasonably Foreseeable Environmental Impacts ............ 1041
                 3. The Navy's Refusal to Supplement the EIS ................................. 1042
                 4. Reliance on Unpublished White Paper not Subject to Public Comment ........ 1044
                 D. Endangered Species Act ...................................................... 1045
                 1. Regulatory Definition of Adverse Modification ............................ 1046
                 2. Incidental Take Statements ............................................... 1048
                III. INJUNCTIVE RELIEF .............................................................. 1051
                

I. INTRODUCTION

Plaintiffs, various environmental organizations and a concerned individual, seek a preliminary injunction against federal officials to prevent the United States Navy's peacetime use of a low frequency sonar system for training, testing and routine operations.1 This new 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. Plaintiffs charge that the National Marine Fisheries Service

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("NMFS") improperly approved use of SURTASS LFA in as much as 75 percent of the world's oceans in violation of the Marine Mammal Protection Act ("MMPA"), the Endangered Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"). 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, even though they would still be free to use it during wartime or periods of heightened threat, because training and testing is necessary for military readiness.

As explained below, the Court recognizes the importance of this new sonar technology to national security. The Court also commends defendants' sponsorship of independent scientific research to advance our limited understanding of the effects of low frequency sound on marine mammals. Plaintiffs have shown, however, that they are likely to prevail on a number of issues. These include the likelihood of establishing that the authorization of harassment of up to 12 percent of marine mammals violates the "small numbers" limitation and that NMFS has impermissibly narrowed the definition of harassment, in violation of the MMPA; that NMFS acted arbitrarily in postponing the designation of additional "off limits" areas within the ocean where marine mammals and endangered species are likely to be particularly abundant, and did not sufficiently analyze reasonable alternatives, in violation of NEPA; and that, by relying on an illegal regulatory definition of adverse modification and not including proper incidental take statements in its two biological opinions, NMFS violated the ESA. Plaintiffs have also raised serious questions on the merits on the issues of whether NMFS acted arbitrarily and capriciously in choosing the specified geographic regions identified in the Final Rule, and whether the taking authorized will have more than a negligible impact on marine mammals. However, the Court is not predicating any injunctive relief upon these issues. Defendants are likely to prevail on the remaining issues.

The Court concludes that a preliminary injunction should issue. Plaintiffs have shown the likelihood of irreparable injury and of a future violation of the ESA. At the same time, the Court must consider the public interests both in national security and in protecting marine mammals and endangered species. Accordingly, the Court concludes that a carefully tailored preliminary injunction should issue, which permits the use of LFA sonar for testing and training in a variety of ocean conditions, but provides additional safeguards to reduce the risk to marine mammals and endangered species.

II. LIKELIHOOD OF PREVAILING ON THE MERITS

The Court reviews challenges under the MMPA, ESA, NEPA, and APA to ensure that the agency has not acted in a manner that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 471 (9th Cir.2000); 5 U.S.C. § 706. To obtain a preliminary injunction,

the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations

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represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.

Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.1998). "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (citing Railroad Comm'n. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 L.Ed. 971 (1941)).

A. Scientific Background, Including Basis for 180 dB Threshold

One important scientific dispute between the parties is whether the standard of 180 decibels ("dB") adopted by NMFS as the threshold for probable injury to marine life is arbitrary and capricious. Decibels measure sound intensity or loudness on a logarithmic scale; for example, a sound measuring 180 dB is approximately ten times more intense than a 170 dB sound. LFA sonar uses low frequency sound waves which travel farther distances in the ocean with less loss of intensity than higher frequency sound waves. Plaintiffs contend that substantial scientific evidence indicates that injury to marine mammals occurs at much lower levels than 180 dB. Defendants respond that an independent scientific team arrived at the 180 dB threshold based on a review of the relevant literature, the results of a specially designed Scientific Research Program ("SRP"), and underwater acoustical modeling. (2nd Johnson Dec. at ¶ 7, 9-11; EIS p. 4.201.)

Under the SRP, independent scientists designed controlled scientific studies of the impact of LFA sonar on marine mammals at sound levels between 120 dB and approximately 155 dB, which they conducted over a one-year period using an LFA-equipped ship provided by the Navy. The studies tested the effect of LFA sonar on four species of endangered baleen whales, which specialize in hearing sounds in the low frequency range in which LFA sonar operates, and thus were expected to be most sensitive to LFA sonar. The results surprised the scientists:

Prior to the LFS SRP, the expectation was that whales would begin to show avoidance responses at RLs [Received Levels] of 120 dB. Immediately obvious avoidance responses were expected for levels > 149 dB. The LFS SRP experiments detected some short-term behavioral responses at estimated RLs between 120-155 dB. In the Phase II research, avoidance responses were sometimes obvious in the field when the LF source was in the gray whale migration path. Although several behavioral responses were revealed through later statistical analysis, there was no significant change in a biologically important behavior detected in any of the three phases. Most animals that did respond returned to normal baseline behavior within a few tens of minutes.

(EIS at p. ES-16.)

Dr. Tyack, Senior Scientist at Woods Hole Oceanographic Institution,...

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15 practice notes
  • Town of Superior v. U.S. Fish & Wildlife Serv., Civil Action No. 11-cv-03294-PAB
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 21, 2012
    ...273 F.3d at 1249. That limit may be zero; that is, a valid ITS may exempt no take. See Natural Res. Defense Council, Inc. v. Evans, 232 F. Supp. 2d 1003, 1051 (N.D. Cal. 2002). Courts have, however, held that an ITS is not required for an agency's programmatic or planning activity that "doe......
  • Kunaknana v. U.S. Army Corps of Eng'rs, Case Nos. 3:13–cv–00044–SLG, 3:13–cv–00095–SLG.
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • May 27, 2014
    ...nor CEQ regulations discuss how agencies should make determination whether SEIS is required); Natural Res. Def. Council, Inc. v. Evans, 232 F.Supp.2d 1003, 1043–44 (N.D.Cal.2002) (affirming agency's decision not to prepare SEIS based on agency's satisfactory explanation for that decision in......
  • Kunaknana v. U.S. Army Corps of Eng'rs, Case Nos. 3:13–cv–00044–SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • May 27, 2014
    ...nor CEQ regulations discuss how agencies should make determination whether SEIS is required); Natural Res. Def. Council, Inc. v. Evans, 232 F.Supp.2d 1003, 1043–44 (N.D.Cal.2002) (affirming agency's decision not to prepare SEIS based on agency's satisfactory explanation for that decision in......
  • Town of Superior v. U.S. Fish & Wildlife Serv., Civil Action Nos. 11–cv–03294–PAB, 12–cv–00034–PAB, 12–cv–00388–PAB.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 21, 2012
    ...273 F.3d at 1249. That limit may be zero; that is, a valid ITS may exempt no take. See Natural Res. Defense Council, Inc. v. Evans, 232 F.Supp.2d 1003, 1051 (N.D.Cal.2002). Courts have, however, held that an ITS is not required for an agency's programmatic or planning activity that “does no......
  • Request a trial to view additional results
15 cases
  • Town of Superior v. U.S. Fish & Wildlife Serv., Civil Action No. 11-cv-03294-PAB
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 21, 2012
    ...273 F.3d at 1249. That limit may be zero; that is, a valid ITS may exempt no take. See Natural Res. Defense Council, Inc. v. Evans, 232 F. Supp. 2d 1003, 1051 (N.D. Cal. 2002). Courts have, however, held that an ITS is not required for an agency's programmatic or planning activity that "doe......
  • Kunaknana v. U.S. Army Corps of Eng'rs, Case Nos. 3:13–cv–00044–SLG, 3:13–cv–00095–SLG.
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • May 27, 2014
    ...nor CEQ regulations discuss how agencies should make determination whether SEIS is required); Natural Res. Def. Council, Inc. v. Evans, 232 F.Supp.2d 1003, 1043–44 (N.D.Cal.2002) (affirming agency's decision not to prepare SEIS based on agency's satisfactory explanation for that decision in......
  • Kunaknana v. U.S. Army Corps of Eng'rs, Case Nos. 3:13–cv–00044–SLG
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • May 27, 2014
    ...nor CEQ regulations discuss how agencies should make determination whether SEIS is required); Natural Res. Def. Council, Inc. v. Evans, 232 F.Supp.2d 1003, 1043–44 (N.D.Cal.2002) (affirming agency's decision not to prepare SEIS based on agency's satisfactory explanation for that decision in......
  • Town of Superior v. U.S. Fish & Wildlife Serv., Civil Action Nos. 11–cv–03294–PAB, 12–cv–00034–PAB, 12–cv–00388–PAB.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • December 21, 2012
    ...273 F.3d at 1249. That limit may be zero; that is, a valid ITS may exempt no take. See Natural Res. Defense Council, Inc. v. Evans, 232 F.Supp.2d 1003, 1051 (N.D.Cal.2002). Courts have, however, held that an ITS is not required for an agency's programmatic or planning activity that “does no......
  • Request a trial to view additional results

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