Natural Resources Defense Council V. Winter

• Citation: 527 F.Supp.2d 1216
• Decision Date: 04 February 2008
• Docket Number: No. 8:07-ev-00335-FMC-FMOX.,8:07-ev-00335-FMC-FMOX.
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al. Plaintiffs, v. Donald C. WINTER, et al., Defendants.
• Court: U.S. District Court — Central District of California

527 F.Supp.2d 1216

NATURAL RESOURCES DEFENSE COUNCIL, et al. Plaintiffs, v. Donald C. WINTER, et al., Defendants.

No. 8:07-ev-00335-FMC-FMOX.

United States District Court, C.D. California.

February 4, 2008.

COPYRIGHT MATERIAL OMITTED

Alan J. Heinrich, Alison Plessman, Irell & Manella, Los Angeles, CA, Andrew Elsas Wetzler, Cara Ann Horowitz, Natural Resources Defense Council, Santa Monica, CA, Gregory Alan Fayer, Irell and Manella, Los Angeles, CA, Joel R. Reynolds, Natural Resources Defense Council, Santa Monica, CA, Joshua B. Gordon, Richard B. Kendall, Irell & Manella, Los Angeles, CA, for Natural Resources Defense Council Inc.

Andrew Elsas Wetzler, Cara Ann Horowitz, Natural Resources Defense Council, Santa Monica, CA, Gregory Alan Fayer Irell and Manella, Los Angeles, CA, Joel R. Reynolds, Natural Resources Defense Council, Santa Monica, CA, Joshua B. Gordon, Richard B. Kendall, Irell & Manella, Los Angeles, CA, for International .Fund for Animal Welfare, Cetacean Soc. International, League for Coastal Protection, Ocean Futures Soc.

Andrew Elsas Wetzler, Cara Ann Horowitz, Natural Resources Defense Council, Santa Monica, CA, Joel R. Reynolds, Natural Resources Defense Council, Santa Monica, CA, for Jean-Michel Cousteau.

Assistant U.S. Attorney SA-CV, AUSA-Office of US Attorney, Santa Ana Branch-Civ. Div., Santa Ana, CA, Charles R. Shockey, AUSA Office of the US Attorney, Environmental & Natural Resources Div., Sacramento, CA, Guillermo Montero, US Dept. of Justice, Natural Resources Sec., Luther L. Hajek, US Dept of Justice, Environment and Natural Resources Div.-Wildlife Sec., Denver, CO, George S. Cardona, AUSA-Office of US Attorney, Crim. Div., Los Angeles, CA, for Donald C. Winter, Sec. of the Navy, U.S. Dept. of the Navy, National Marine Fisheries Service, William Hogarth Assistant Admin. for Fisheries of the National Oceanographic and Atmospheric Admin., Vice Admiral Conrad C. Lautenbacher, Jr., Admin. of the National Oceanographic and Atomospheric Admin.

Assistant U.S. Attorney SA-CV, AUSA-Office of US Attorney, Santa Ana Branch-Civ. Div., Santa Ana, CA, Charles R. Shockey, AUSA Office of the US Attorney, Environmental & Natural Resources Div., Sacramento, CA, George S. Cardona, AUSA-Office of US Attorney, Crim. Div., Los Angeles, CA, Guillermo Montero, US Dept. of Justice, Natural Resources Sec., Luther L. Hajek, US Dept of Justice, Environment and Natural Resources Div.-Wildlife Sec., Denver, CO, Michael R. Eitel, US Dept. of Justice, Environment and natural Resources Div.-Wildlife Sec., Denver, CO, for Carols M. Gutierrez, Sec. of the Dept. of Commerce.

Jamee Jordan Patterson, CAAG-Office of Attorney General of California, San Diego, CA, for California Coastal Com'n.

ORDER DENYING DEFENDANTS' EX PARTE APPLICATION TO VACATE PRELIMINARY INJUNCTION OR TO PARTIALLY STAY PENDING APPEAL AND ORDER VACATING TEMPORARY STAY

FLORENCE-MARIE COOPER, District Judge.

This matter is before the Court on remand from the Ninth Circuit Court of Appeals. The Court was instructed to consider the effect of recent executive actions on its January 3, 2008 Order issuing a preliminary injunction, as modified January 10, 2008, and its January 14, 2008 Order Denying Defendants' Application for a Stay Pending Appeal. The Court has read and considered the Ninth Circuit's Order, as well as Defendants' Application for Immediate Vacatur or Partial Stay Pending Appeal, (docket no. 131, filed January 17, 2008), Plaintiffs' Opposition, and Defendants' Reply thereto. For the reasons and in the manner set forth below, the Court's Orders stand and Defendants' Application is DENIED. The temporary, partial stay is lifted (docket no. 133).

SUMMARY

In this Order, the Court concludes that its preliminary injunction is not affected by the Council on Environmental Quality's (CEQ) approval of emergency alternative arrangements because there is no emergency. The CEQ's action is beyond the scope of the regulation and is invalid. The Navy is not, therefore, exempted from compliance with the National Environmental Policy Act and this Court's injunction.

The Court also expresses significant concerns about the constitutionality of the President's exemption of the Navy from the requirements of the Coastal Zone Management Act. However, because a finding on this issue is not necessary to the result reached, the Court adheres to the doctrine of constitutional avoidance and does not resolve that issue.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs, a coalition of environmental protection groups and a concerned individual (led by the Natural Resources Defense Counsel (NRDC)),¹ brought suit challenging the United States Navy's² use of midfrequency active (MFA) sonar during training exercises off the coast of Southern California.³ MFA sonar is a tool that has proven far more effective at detecting modern quiet-running diesel electric submarines than passive sonar. (Decl. of Capt. Martin May ¶ ¶ 8-10.) MFA sonar, which generates underwater sound at extreme pressure levels, has the unfortunate side effect of inflicting harm on marine life, up to and including death.⁴ (See, e.g., Decl. of Thomas Jefferson ¶ 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, Ex. 1 at 2-1 to 2-24.) As of this writing, eight exercises have yet to take place. (See Defs.' Reply in Supp. of Ex Parte Application.) 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"⁵ 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,⁶ 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. Therefore, the Navy 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, Ex. 67 at 9.)

I. Preliminary Injunction

On March 22, 2007, Plaintiffs filed this action against Defendants, 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 to enjoin 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." In August 2007, after full briefing and oral argument, this Court granted Plaintiffs' Motion for a Preliminary Injunction. Finding Defendants' mitigation measures "woefully inadequate and ineffectual," the Court concluded that Plaintiffs had demonstrated a likelihood of success on their NEPA, CZMA, and APA claims, but not their ESA claim. Particularly relevant here is the, Court's finding that Defendants' failure to prepare an Environmental Impact Statement (EIS) pursuant to NEPA contradicted their own scientific findings.

II. Mitigation Measures

On August 31, 2007, a panel of the Ninth Circuit Court of Appeals stayed the injunction pending appeal. Natural Res. Del Council v. Winter, 502 F.3d 859 (2007). On November 13, 2007, another panel of the Ninth Circuit remanded to this Court, finding that while Plaintiffs had demonstrated a likelihood of success, the Navy's training with MFA sonar could go forward with the appropriate mitigation measures. Natural Res. Del Council v. Winter, 508 F.3d 885 (2007). The order gave the Court until January 4, 2008 to issue a revised injunction, incorporating mitigation measures.

On November 27, 2007, a status conference was held, in which the Court ordered the parties to meet and confer by December 3, 2007 to attempt to agree on mitigation measures. No stipulation was reached. Accordingly, the parties presented possible mitigation measures to the Court. 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.

Plaintiffs proposed a number of broad measures to limit the impact of MFA sonar on marine life. These measures included: (1) a 25 nautical mile coastal exclusion, (2) exclusion of the Catalina Basin, (3) exclusion of the Westfall seamount, (4) exclusion of Cortez and Tanner Banks, and (5) locating exercises to the maximum extent possible in waters deeper than 1,500 meters. Defendants, by contrast, sought to maintain the status quo. The Navy offered to continue employing the mitigation measures outlined in the 2007 National Defense Exemption ("NDE"),⁷ as well as several...