Natural Resources Defense Council, Inc. v. Winter

Decision Date07 August 2007
Docket NumberNo. 8:07-cv-00335-FMC-FMOx.,8:07-cv-00335-FMC-FMOx.
Citation645 F.Supp.2d 841
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Donald C. WINTER, Secretary of the Navy, et al., Defendants.
CourtU.S. District Court — Central District of California

Alan J. Heinrich, Gregory Alan Fayer, Richard B. Kendall, Irell & Manella, Los Angeles, CA, Andrew Elsas Wetzler, Cara

Ann Horowitz, Joel R. Reynolds, Natural Resources Defense Council, Santa Monica, CA, for Plaintiffs.

Assistant U.S. Attorney SA—CV, Santa Ana Branch—Civil Div., Santa Ana, CA, Charles R. Shockey, A.U.S.A. Office of the U.S. Attorney, Guillermo Montero, Luther L. Hajek, U.S. Department of Justice, Washington, DC, Michael R. Eitel, U.S. Department of Justice, Environment and Natural Resources Division—Wildlife Section, Denver, CO, George S. Cardona, A.U.S.A.—Office of U.S. Attorney, Los Angeles, CA, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR STAY AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

FLORENCE-MARIE COOPER, Judge.

This matter is before the Court on Defendants' Motion to Dismiss or Stay (docket no. 14) and Plaintiffs' Motion for Preliminary Injunction (docket no. 21), filed June 22, 2007. The Court has read and considered the moving, opposition, and reply documents submitted in connection with these motions. The matter was heard on August 6, 2007, at which time the parties were in receipt of the Court's Tentative Order. For the reasons and in the manner set forth below, the Court hereby GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Preliminary Injunction and DENIES Defendants' Motion to Dismiss or Stay.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This litigation arises out of the United States Navy's proposed use of mid-frequency active (MFA) sonar, a tool that has proven far more effective at detecting modern quiet-running diesel electric submarines than passive sonar. (Decl. of Capt. Martin May (May Decl.) ¶¶ 8-10.) MFA sonar, which generates underwater sound at extreme pressure levels, has the unfortunate side effect of harming marine life, up to and including causing death. (See, e.g., Decl. of Thomas Jefferson (Jefferson Decl.) ¶ 4 and sources cited therein.) The Navy plans to use MFA sonar during fourteen large-scale training exercises (involving various ships, submarines, amphibious vehicles, rotary and fixed-wing aircraft, and live ordinance) off the coast of southern California between February 2007 and January 2009. (Decl. of Luther Hajek (Hajek Decl.), Ex. 1 at 2-1 to 2-24.) The Navy's own Environmental Assessment (EA) reports that these activities, comprised of Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Exercises (JTFEX), will result in approximately 170,000 "takes"1 of marine mammals. (Id. at 4-46 to 4-47.) These takes are predominantly "Level B harassment exposures," in which marine mammals would be subjected to sound levels of between 170 and 195 decibels,2 but also include approximately 8,000 exposures powerful enough to cause a temporary threshold shift in the affected mammals' sense of hearing and an additional 466 instances of permanent injury to beaked and ziphiid whales. (Id.)

Despite these findings, the Navy concluded that its JTFEX and COMPTUEX exercises in the Southern California Operating Area (SOCAL) would not cause a significant impact on the environment and on that basis decided that the National Environmental Policy Act (NEPA) did not require it to prepare an Environmental Impact Statement (EIS). In addition, the Navy determined that the use of MFA sonar would not affect natural resources in California's coastal zone and therefore submitted a "consistency determination" (CD) to the California Coastal Commission (CCC) for the exercises that did not take the planned use of MFA sonar into account. It also refused to adopt the mitigation measures the CCC subsequently determined were necessary for the Navy's actions to comply with the California Coastal Management Program (CCMP). (See Decl. of Cara Horowitz (Horowitz Decl.), Ex. 67 at 9.)

On March 22, 2007, Plaintiffs, five environmental protection groups and Jean-Michel Cousteau, filed this action against Defendants, which include the United States Department of the Navy and the National Marine Fisheries Service (NMFS), seeking declaratory and injunctive relief for Defendants' violations of NEPA, the Endangered Species Act (ESA), the Administrative Procedures Act (APA), and the Coastal Zone Management Act (CZMA). On June 22, 2007, Plaintiffs moved for a preliminary injunction enjoining the Navy's use of MFA sonar during the SOCAL exercises "until the Navy adopts mitigation measures that would substantially lessen the likelihood of serious injury and death to marine life." That same day, Defendants filed a Motion to Dismiss or Stay.

DISCUSSION
I. Defendants' Motion to Dismiss or Stay

Defendants have asked the Court, "for purposes of judicial economy," to exercise its inherent power to manage its docket by dismissing this action, which it argues is duplicative of Natural Res. Def. Council v. Winter, CV 05-7513 FMC (FMOx) (hereinafter NRDC I), or staying the action pending resolution of NRDC I and California Coastal Comm'n v. U.S. Dep't of the Navy, CV 07-1899 FMC (FMOx). The Court finds that the instant case does not constitute "vexatious litigation," as Defendants argue, and declines to exercise its broad discretion in the service of judicial economy by dismissing or staying this subsequently filed action that involves additional parties, asserts new legal claims, and is premised on new factual developments, particularly where a dismissal or stay would likely preclude any review of the claims on their merits until after completion of the challenged activities, which Plaintiffs contend will cause irreparable harm. Accordingly, the Court denies Defendants' Motion to Dismiss or Stay.

II. Plaintiffs' Motion for Preliminary Injunction

Plaintiffs have asked the Court to issue a preliminary injunction prohibiting the Navy from using MFA sonar during the remaining eleven SOCAL exercises. "A preliminary injunction may issue when the moving party demonstrates either `(1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.'" Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir.2007) (quoting A & M Records v. Napster, Inc., 239 F.3d 1004 1013 (9th Cir.2001)); see also Cmty. House, Inc. v. City of Boise, 468 F.3d 1118, 1123 (9th Cir.2006). "These two options represent extremes on a single continuum: `the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor.'" Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir.2007) (quoting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.2003)) (en banc) (per curiam); see also A & M Records, 239 F.3d at 1013 (criteria form a "sliding scale" whereby the required degree of harm increases as the likelihood of success decreases); United States v. Nutri-cology, Inc., 982 F.2d 394, 398 (9th Cir.1992) (same).

A. Probability of Success on the Merits

Plaintiffs allege that Defendants (1) failed to prepare a required EIS, (2) failed to prepare an adequate Environmental Assessment, (3) failed to submit a consistency determination that included all federal activities that would affect California's coastal zone to the CCC for consistency review, (4) failed to carry out federal activities that affect California's coastal zone in a manner consistent with the CCMP, and (5) failed to prepare an adequate Biological Opinion (BiOp) and Incidental Take Statement (ITS). Having reviewed the voluminous evidence the parties have presented, the Court finds that Plaintiffs have demonstrated a probability of success on the merits of their first four causes of action, for violations of NEPA, the APA, and the CZMA, but not their fifth cause of action, for violation of the ESA.

1. The National Environmental Policy Act (NEPA)

Plaintiffs contend that Defendants violated NEPA by (a) failing to prepare an EIS despite the potential for the challenged exercises to have a significant impact on the environment and (b) by failing to prepare an adequate EA that considered the cumulative impacts of, and all reasonable alternatives to, the proposed actions.

In 1970, Congress passed the National Environmental Policy Act and declared "a national policy which will encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. The purpose of NEPA was "to promote efforts which will prevent or eliminate damage to the environment," as well as "to enrich the understanding of the ecological systems and natural resources important to the Nation." Id. NEPA does not contain any substantive requirements that dictate a particular result; instead, NEPA is aimed at ensuring agencies make informed decisions and "contemplate the environmental impacts of [their] actions." Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (concluding that NEPA "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.").

In addition to aiding internal agency decisionmaking, preparation and publication of an EIS "also serves a larger informational role. It gives the public the...

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