Natural Resources Defense Council, Inc. v. Winter, No. 08-55054.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBetty B. Fletcher
Citation518 F.3d 658
Decision Date29 February 2008
Docket NumberNo. 08-55054.
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC.; The International Fund for Animal Welfare; Cetacean Society International; League for Coastal Protection; Ocean Futures Society; Jean-Michel Cousteau, Plaintiffs-Appellees, California Coastal Commission, Intervenor-Appellee, v. Donald C. WINTER, Secretary of the Navy; United States Department of the Navy; Carlos M. Gutierrez, Secretary of the Department of Commerce; National Marine Fisheries Services; William Hogarth, Assistant Administrator for Fisheries of the National Oceanographic and Atmospheric Administration; Conrad C. Lautenbacher, Jr., Administrator of the National Oceanographic and Atmospheric Administration, Defendants-Appellants.
518 F.3d 658
NATURAL RESOURCES DEFENSE COUNCIL, INC.; The International Fund for Animal Welfare; Cetacean Society International; League for Coastal Protection; Ocean Futures Society; Jean-Michel Cousteau, Plaintiffs-Appellees,
California Coastal Commission, Intervenor-Appellee,
v.
Donald C. WINTER, Secretary of the Navy; United States Department of the Navy; Carlos M. Gutierrez, Secretary of the Department of Commerce; National Marine Fisheries Services; William Hogarth, Assistant Administrator for Fisheries of the National Oceanographic and Atmospheric Administration; Conrad C. Lautenbacher, Jr., Administrator of the National Oceanographic and Atmospheric Administration, Defendants-Appellants.
No. 08-55054.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 27, 2008.
Filed February 29, 2008.

[518 F.3d 660]

Ronald J. Tenpas (argued), Acting Assistant Attorney General; Michael R. Eitel, Luther L. Hajek, and Allen M. Brabender, Appellate Section, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC; Craig D. Jensen and J. Page Turney, Office of General Counsel, Department of the Navy, for the federal defendants-appellants.

Joel R. Reynolds, Cara A. Horowitz, Stephen Zak Smith, Natural Resources Defense Council, Inc., Santa Monica, CA; Richard B. Kendall (argued), Gregory A. Fayer, and Josh B. Gordon, Irell and Manella LLP, Los Angeles, CA, for plaintiffs-appellees.

Edmund G. Brown, Jr., Janet Gaard, J. Matthew Rodriguez, Jamee Jordan Patterson (argued), Office of the Attorney General of California, for intervenor-appellee California Coastal Commission.

Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding, D.C. No. CV-07-00335-FMC.

Before: B. FLETCHER, D.W. NELSON, and REINHARDT, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:


Defendants Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, National Marine Fisheries Service (NMFS),1 and two Administrators of the National Oceanographic and Atmospheric Administration (NOAA) appeal the district court's January 3, 2008 order, as modified on January 10, 2008, granting a motion for a preliminary injunction and imposing certain conditions on the completion of the remaining eight of fourteen large training exercises scheduled to be conducted by the Navy's Third Fleet in the waters off the coast of southern California between February 2007 and January 2009 (the "SOCAL exercises").2 The motion was filed by plaintiffs Natural Resources Defense Council, Inc., International

518 F.3d 661

Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau (collectively "NRDC" or "plaintiffs"), who are concerned that the Navy's use of high-intensity, mid-frequency active sonar ("MFA sonar") in the SOCAL exercises will cause serious harm to various species of marine mammal present in the southern California waters, and by extension, to plaintiffs themselves.

In granting NRDC's motion for a preliminary injunction, the district court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing to prepare an Environmental Impact Statement ("EIS"). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1451 et seq., by submitting a consistency determination to the California Coastal Commission ("CCC") that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the California Coastal Management Program ("CCMP").

On January 15, 2008, the Council on Environmental Quality ("CEQ") purported to approve "alternative arrangements," pursuant to 40 C.F.R. § 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the requirements of the CZMA the Navy's use of MFA sonar in the SOCAL exercises.

On February 4, 2008, the district court upheld its injunction on the basis of plaintiffs' NEPA claim, concluding CEQ's action was invalid and therefore not entitled to deference. The district court also expressed concerns about the constitutionality of the President's CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn's Case, 2 U.S. (2 Dall.) 408, 1 L.Ed. 436 (1792), that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. However, the court declined to decide the constitutionality of the CZMA exemption because it concluded the preliminary injunction was firmly supported on NEPA grounds.3 The district court also found that plaintiffs had demonstrated a possibility of irreparable harm and that the balance of hardships tipped in plaintiffs' favor. Natural Res. Def. Council v. Winter, 527 F.Supp.2d 1216 (2008) ("Feb. 4, 2008 Dist. Ct. Order").

For the reasons stated below, we uphold the district court's preliminary injunction.

I. Procedural History

Plaintiffs commenced this action on March 22, 2007. On August 7, 2007, the district court granted in part NRDC's motion for a preliminary injunction and enjoined the Navy from conducting the then remaining eleven SOCAL exercises.4 After

518 F.3d 662

appealing the district court's preliminary injunction order,5 the Navy filed an emergency motion with this court for a stay of the order while its appeal was pending. On August 31, 2007, a divided motions panel granted the Navy's motion on the grounds that the district court had failed to consider the "public interest" in having a trained and effective Navy and had failed to explain why an unconditional injunction on the SOCAL exercises, rather than an injunction conditioning the conduct of those exercises on the adoption of additional mitigation measures, was appropriate. NRDC v. Winter, 502 F.3d 859 (9th Cir.2007).

On November 13, 2007, after hearing oral argument, we filed an order concluding that NRDC had met the necessary burden of proof to demonstrate that some form of preliminary injunctive relief was appropriate. Accordingly, we vacated the stay of the preliminary injunction order effective upon the Navy's completion of its fifth SOCAL exercise, which was in progress at the time of oral argument. However, we also concluded that an injunction conditioning continuation of the exercises on the Navy's adoption of narrowly tailored mitigation measures would be more appropriate than a total injunction. Accordingly, we remanded the case for the district court to enter a modified preliminary injunction containing appropriate mitigating measures. NRDC v. Winter, 508 F.3d 885 (9th Cir.2007).

On January 3, 2008, the district court, after having received briefing from the parties and having toured the destroyer USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibility of the parties' proposed mitigation measures, issued a new preliminary injunction that allowed the Navy to conduct the remaining SOCAL exercises provided that it employ certain measures intended to mitigate the impact of the Navy's use of MFA sonar on the environment. On January 9, 2008, the Navy applied for a stay pending appeal and requested relief from the district court by January 14, 2008.

On January 10, 2008, in response to arguments raised in the Navy's stay application, the district court modified the preliminary injunction by narrowing the mitigation measures contained in the January 3, 2008 order. The Navy filed a notice of appeal the following day. The district court denied the Navy's stay application on January 14, 2008.

On the evening of January 15, 2008, the Navy filed an emergency motion with this court requesting vacatur of the preliminary injunction or, alternatively, a partial stay of the preliminary injunction pending a decision on its appeal by our court. The Navy's motion was based in part on two developments that occurred on the same day that the motion was filed. First, the President of the United States, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the provisions of the CZMA the Navy's use of MFA sonar during the SOCAL exercises, finding that such use of MFA sonar is "essential to national security" and in the "paramount interest of the United States." Second, the CEQ, finding "emergency circumstances," purported to approve "alternative arrangements" to accommodate those emergency circumstances, pursuant to 40 C.F.R. § 1506.11. It permitted the Navy to follow the prescribed arrangements to continue its exercises pending completion of the Navy's

518 F.3d 663

EIS. The Navy subsequently adopted the alternative arrangements and determined that it would comply with them. See Decision Memorandum Accepting Alternative Arrangements for the U.S. Navy's Southern California Operating Area Composite Training Unit Exercises and Joint Task Force Exercises Scheduled To Occur Between Today and January 2009, 73 Fed. Reg. 4189 (Jan. 24, 2008).

On January 16, 2008, we remanded the matter to the district court to consider in the first instance the effect, if any, of these developments on its preliminary injunction order. On January 17, 2008, the district court issued a temporary partial stay of its preliminary injunction order pending the court's consideration of the Navy's ex parte application to vacate the preliminary injunction. The Navy subsequently conducted its sixth SOCAL exercise.

On February 4, 2008, following briefing by...

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33 practice notes
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    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 13 Julio 2020
    ...they had demonstrated a likelihood of success on the merits. Winter, 555 U.S. at 21, 129 S.Ct. 365. See Nat. Res. Def. Council v. Winter, 518 F.3d 658, 696 (9th Cir. 2008) (explaining the Ninth Circuit's test). The Navy argued that plaintiffs "must demonstrate a likelihood of irreparable in......
  • Natural Res. Def. Council v. U.S. Dep't of Energy, 17 Civ. 6989
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Febrero 2019
    ...reasonable expectation that the challenged action may recur, and does not moot NRDC's claims. Cf. Nat. Res. Def. Council, Inc. v. Winter , 518 F.3d 658, 678-79 (9th Cir. 2008), rev'd on other grounds , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 ("[O]nly a valid subsequent action can render ......
  • Western Watersheds v. Bureau of Land Management, No. 03:06-CV-00527-LRH-RAM.
    • United States
    • U.S. District Court — District of Nevada
    • 18 Abril 2008
    ...§ 1508.9(a)(1). An agency's decisions are entitled to a presumption of regularity. Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658, 688 (9th Cir.2008) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "In the a......
  • Nelson v. National Aeronautics and Space Admin., No. 07-56424.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 Junio 2009
    ...INV 42 takes approximately five minutes to complete."). 3. Winter v. NRDC, ___ U.S. ___, 129 S.Ct. 365, 381, 172 L.Ed.2d 249 (2008), rev'g 518 F.3d 658 (9th Cir.) (emphasis 4. Exec. Order No. 10,450, 18 Fed.Reg. 2489 (Apr. 29, 1953), reprinted as amended in 5 U.S.C. § 7311 app. at 77-80 (20......
  • Request a trial to view additional results
30 cases
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • 13 Julio 2020
    ...they had demonstrated a likelihood of success on the merits. Winter, 555 U.S. at 21, 129 S.Ct. 365. See Nat. Res. Def. Council v. Winter, 518 F.3d 658, 696 (9th Cir. 2008) (explaining the Ninth Circuit's test). The Navy argued that plaintiffs "must demonstrate a likelihood of irreparable in......
  • Natural Res. Def. Council v. U.S. Dep't of Energy, 17 Civ. 6989
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Febrero 2019
    ...reasonable expectation that the challenged action may recur, and does not moot NRDC's claims. Cf. Nat. Res. Def. Council, Inc. v. Winter , 518 F.3d 658, 678-79 (9th Cir. 2008), rev'd on other grounds , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 ("[O]nly a valid subsequent action can render ......
  • Western Watersheds v. Bureau of Land Management, No. 03:06-CV-00527-LRH-RAM.
    • United States
    • U.S. District Court — District of Nevada
    • 18 Abril 2008
    ...§ 1508.9(a)(1). An agency's decisions are entitled to a presumption of regularity. Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658, 688 (9th Cir.2008) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "In the a......
  • Nelson v. National Aeronautics and Space Admin., No. 07-56424.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 Junio 2009
    ...INV 42 takes approximately five minutes to complete."). 3. Winter v. NRDC, ___ U.S. ___, 129 S.Ct. 365, 381, 172 L.Ed.2d 249 (2008), rev'g 518 F.3d 658 (9th Cir.) (emphasis 4. Exec. Order No. 10,450, 18 Fed.Reg. 2489 (Apr. 29, 1953), reprinted as amended in 5 U.S.C. § 7311 app. at 77-80 (20......
  • Request a trial to view additional results
2 books & journal articles
  • Administering the National Environmental Policy Act
    • United States
    • Environmental Law Reporter Nbr. 45-4, April 2015
    • 1 Abril 2015
    ...410, 414 (1945)/Auer v. Robbins, 519 U.S. 452, 461 (1997), discussed in Part IV, below). See Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 658, 679-80, 38 ELR 20242 (9th Cir. 2008), overruled on other grounds , 129 S. Ct. at 381-82. 402. Cf . Cohens v. Virginia, 19 U.S. (6 Wheat.) 264......
  • Betty B. Fletcher: NEPA's Angel and Chief Editor of the Hard Look
    • United States
    • Environmental Law Reporter Nbr. 40-3, March 2010
    • 1 Marzo 2010
    ...a task force to correct the mistake of not addressing location selections in the PEIS ” (emphasis added in the Fletcher opinion). 110. 518 F.3d 658, 38 ELR 20057 (9th Cir. 2008). 111. Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 375, 39 ELR 20279 (2008). Copyright © 2010 Environment......

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