Natural Resources Defense Council, Inc. v. Winter

Decision Date03 January 2008
Docket NumberNo. 8:07-cv-00335-FMC-FMOx.,8:07-cv-00335-FMC-FMOx.
Citation530 F.Supp.2d 1110
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, Alison Plessman, Gregory Alan Fayer, Joshua B. Gordon, Richard B. Kendall, Irell and Manella LLP, 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, AUSOffice of U.S. Attorney, Santa Ana Branch — Civil Div., Santa Ana, CA, Charles R. Shockey, AUSA Office of the U.S. Attorney, Environmental & Natural Resources Div., Sacramento, CA, Guillermo Montero, Luther L. Hajek, United States Department of Justice, Environment and Natural Resources Division, Washington, DC, Michael R. Eitel, U.S. Department of Justice, Environment and Natural Resources Division — Wildlife Section, Denver, CO, George S. Cardona, AUSA-Office of U.S. Attorney, Criminal Div., Los Angeles, CA, for Defendants.

ORDER ISSUING PRELIMINARY INJUNCTION

FLORENCE-MARIE COOPER, District Judge.

This matter is before the Court on remand from the Ninth Circuit Court of Appeals (docket no. 60). The Court has read and considered the simultaneous briefs and reply documents submitted by the parties in connection with the remand order. In addition, on December 27, 2007, the Court toured the 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. Counsel for both Plaintiffs and Defendants were present. For the reasons and in the manner set forth below, the Court hereby issues the following preliminary injunction.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This litigation arises out of the United States Navy's 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.) ¶¶ 8-10.1) 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, or has used, 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"2 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,3 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 Procedure 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." On August 7, 2007, this Court issued an order enjoining the Navy's use of MFA sonar during training exercises off the coast of California (docket no. 50). The Navy appealed the order and obtained a stay of the injunction pending the appeal. (Natural Res. Del Council v. Winter, 502 F.3d 859 (9th Cir.2007).) On November 13, 2007, a panel of the Ninth Circuit Court of Appeals vacated the stay and remanded the matter to this Court, with instructions to issue a narrower injunction "to provide mitigation conditions under which the Navy may conduct its training exercise." (Natural Res. Def. Council v. Winter, 508 F.3d 885, 886 (9th Cir.2007).)

DISCUSSION
I. August 2007 Findings

Plaintiffs' initial motion asked the Court to issue a preliminary injunction prohibiting the Navy from using MFA sonar during the remaining eleven SOCAL exercises.4 In its August 2007 Order, the Court found that Plaintiffs had demonstrated a probability of success on the merits of their first four causes of action, for violations of National Environmental Policy Act (NEPA), the Administrative Policy Act (APA), and the Coastal Zone Management Act (CZMA), but not their fifth cause of action, for violation of the Endangered Species Act (ESA). These findings were not disturbed by the Ninth Circuit's November 2007 decision. Specifically, the Court made the following findings:

A. Probability of Success

1. The National Environmental Policy Act (NEPA)

In their initial motion, Plaintiffs contended 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.

NEPA mandates the preparation of an EIS for all proposed "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The Ninth Circuit has interpreted this provision as requiring agencies to prepare an EIS "where there are substantial questions about whether a project may cause significant degradation of the human environment." Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1239 (9th Cir.2005) (emphasis in original). As the preparation of an EIS can be a costly and time-consuming process, agencies first complete an EA. 40 C.F.R. § 1508.9. If, based on this assessment, the agency concludes that the proposed actions will not significantly affect the environment, it may issue a "Finding of No Significant Impact" (FONSI) and forego completion of an EIS. Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir.1988); 40 C.F.R. § 1508.13. Agencies must complete an EA and, as necessary, an EIS before reaching a final decision or making an "irreversible and irretrievable commitment of the availability of resources." Envtl. Def. Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir.1979).

Defendants insisted that they were not required to prepare an EIS, and that their issuance of a FONSI was proper, because the SOCAL exercises will not cause a significant impact on marine life. In the Ninth Circuit, courts reviewing an agency's decision not to prepare an EIS under NEPA "employ an arbitrary and capricious standard that requires [them] to determine whether the agency has taken a `hard look' at the consequences of its actions, based its decision on a consideration of the relevant factors, and provided a convincing statement of reasons to explain why a project's impacts are insignificant." Native Ecosystems Council, 428 F.3d at 1239 (internal quotations and citations omitted). To prevail on a claim that an agency "violated its statutory duty to prepare an EIS, a plaintiff need not show that significant effects will in fact occur. It is enough for the plaintiff to raise substantial questions whether a project may have a significant effect on the environment." Blue Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998) (internal quotations and citations omitted).

Addressing these arguments in its August 2007 Order, the Court found that Plaintiffs had raised substantial questions as to whether the SOCAL exercises would have a significant impact on the environment. Mass strandings of several species of whales following naval exercises have been documented in the Bahamas, the Canary Islands, Hawaii, North Carolina, Japan, Greece, Spain, Taiwan, the Madeira archipelago, and the U.S. Virgin Islands. See generally, Horowitz Decl. Exs. 1-16. Following comprehensive studies of these events, the International Whaling Commission's Scientific Committee concluded that "[t]he weight of accumulated evidence now associates mid-frequency, military sonar with atypical beaked whale mass strandings. This evidence is very convincing and appears overwhelming." Id., Ex. 1, Annex K at 9. A study sponsored by the Navy's own Office of Naval Research similarly concluded, "the evidence of sonar causation is, in our opinion, completely convincing...

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3 cases
  • Winter v. Natural Res. Def. Council, Inc.
    • United States
    • U.S. Supreme Court
    • November 12, 2008
    ...in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. 530 F.Supp.2d 1110, 1118–1121 (C.D.Cal.2008). The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Bran......
  • Ocean Mammal Institute v. Gates
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    • U.S. District Court — District of Hawaii
    • February 29, 2008
    ...NRDC v. Winter, 508 F.3d 885 (9th Cir.2007). On January 3, 2008, the district court issued a modified preliminary injunction. NRDC v. Winter, 530 F.Supp.2d 1110. On January 9, 2008, the Navy moved for a stay of the injunction pending appeal, arguing that many of the mitigation measures impo......
  • Natural Resources Defense Council, Inc. v. Winter
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 29, 2008
2 books & journal articles
  • In the Navy: the Future Strength of Preliminary Injunctions Under Nepa in Light of Nrdc v. Winter
    • United States
    • University of North Carolina School of Law North Carolina Journal of Law and Technology No. 10-2008, January 2008
    • Invalid date
    ...attorneys on its staff and has been party to numerous cases seeking enforcement of environmental regulations. Id. 9 NRDC v. Winter, 530 F. Supp. 2d 1110 (C.D. Cal. 10 NRDC v. Winter, 518 F.3d 658 (9th Cir. 2008). 11 See Winter, 530 F. Supp. 2d at 1113-17. The injunction was designed to allo......
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    • United States
    • FNREL - Special Institute National Environmental Policy Act (FNREL)
    • Invalid date
    ...the BLM. See id. at 1065-1066. [27] Northern Cheyenne Tribe v. Norton, 503 F.3d 836, 842-844 (9th Cir. 2007). [28] Id. at 847. [29] See 530 F.Supp.2d 1110 (C.D. Cal. 2008). [30] See 527 F.Supp.2d 1216 (C.D. Cal. 2008). [31] See 518 F.3d 658 (9th Cir. 2008). [32] See 129 S.Ct. 365 (2008). [3......

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