Ocean Mammal Institute v. Gates

• Citation: 546 F.Supp.2d 960
• Decision Date: 29 February 2008
• Docket Number: Civil No. 07-00254 DAE-LEK.
• Parties: OCEAN MAMMAL INSTITUTE, et al., Plaintiffs, v. Robert M. GATES, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

Page 960

546 F.Supp.2d 960

OCEAN MAMMAL INSTITUTE, et al., Plaintiffs, v. Robert M. GATES, et al., Defendants.

Civil No. 07-00254 DAE-LEK.

United States District Court, D. Hawai'i.

February 29, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Koalani L. Kaulukukui, Paul H. Achitoff, Earthjustice Legal Defense Fund, Honolulu, HI, for Plaintiffs.

Derrick K. Watson, Office of the United States Attorney, Theodore G. Meeker, Honolulu, HI, Luther L. Hajek, S. Jay Govindan, U.S. Department of Justice, ENRD, Natural Resources Section, Washington, DC, Charles R. Shockey, U.S. Department of Justice-ENRD, Sacramento, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION; AND ORDER SETTING INJUNCTION

DAVID ALAN EZRA, District Judge.

On February 11, 2008, the Court heard Plaintiffs' Motion for Preliminary Injunction. Paul H. Achitoff, Esq., and Koalani L. Kaulukukui, Esq., appeared at the hearing on behalf of Plaintiffs; Luther L. Hajek and S. Jay Govindan of the Department of Justice appeared at the hearing on behalf of Defendants. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS IN i PART and DENIES IN PART Plaintiffs' Motion and ORDERS the injunction described herein to issue effective immediately.

BACKGROUND

I. Factual and Procedural History

On January 23, 2007, the Navy issued a Programmatic Environmental Assessment/Overseas EA ("First EA") for its proposal to conduct up to twelve undersea warfare exercises ("USWEX") in the Hawaiian Islands Operating Area between January 2007 and January 2009. USWEX is a series of advanced antisubmarine warfare ("ASW) exercises to be conducted by deploying west-coast based strike groups and Hawai'i ported ships. (First EA, Ex. 4 at 1-1, attached to Pls.' Mot. for Prelim. Inj.) The objective of USWEX is to enhance the proficiency of naval surface, subsurface, and air forces to counter the threat of quiet enemy submarines in coastal waters. (Id.)

During USWEX, one to five surface ships, equipped with mid-frequency active ("MFA") sonar and with the aid of helicopters and aircraft, coordinate a search for one or more submarines. (Id. at 2-3.) Each exercise lasts roughly 72 to 96 hours and involves between 139.5 and 222 hours of active MFA sonar use. (Id.) MFA sonar is currently the most effective method for detecting quiet diesel-electric submarines used by potentially hostile nations. (Unclassified Decl. of David Yoshihara ¶¶ 6-11 ("Unclassified Yoshihara Decl"), attached to Defs.' Mot. in Opp.'n.) The United States Navy considers training intensively in realistic conditions at sea is to be critical for developing MFA sonar skills and preparing for conditions that would be encountered in actual combat conditions. (Id. ¶¶ 21-22.) Specifically, training in the Hawai'i range provides unique value that cannot be replicated elsewhere and allows deploying strike groups to hone their sonar and other tactical skills prior to entering potentially hostile waters. (Id. ¶ 21.)

Active sonars generate and emit acoustic energy in order to obtain information about a distant object from the reflected sound energy. (First EA at 2-5.) Advanced MFA sonar involves the discharge of omnidirectional "pings" and then the rapid scanning of a receiving beam to provide directional and range information. (Id.) While different kinds of MFA sonar units are proposed to be utilized during USWEX, the most powerful ones, on surface ships, generate sounds up to 235 decibels (dB).¹ (Id.)

Marine mammals, notably whales and dolphins, have a keen sense of hearing that allows them to forage for food, find mates, bond with offspring, communicate, navigate, and avoid predators. At least 26 species of marine mammal frequent Hawaii's waters, the most abundant of which are rough-toothed dolphins, dwarf sperm whales, Fraser's dolphins, and sperm whales. Seven species listed as endangered occur in the area, including the humpback whale, North Pacific right whale, sei whale, fin whale, blue whale, sperm whale, and Hawaiian monk seal. (First EA at 4-40). Every year between November and April, thousands of humpback whales migrate to Hawaiian waters to breed, calve, and nurse their young. (January 23, 2007 Biological Opinion ("First BiOp"), Ex. 5 at 25, attached to Pis.' Mot. for Prelim. Inj.)

High level acoustic exposures have been demonstrated to adversely affect marine mammals, resulting in injuries including ruptured hearing organs, behavior modification, and, arguably, the accumulation of harmful nitrogen gas embolisms from rapid surfacing. It is alleged that MFA sonar may have been a causative factor in a number of mass stranding events involving marine mammals occurring over the past decade. The use of MFA sonar is considered a plausible, if not likely, contributing factor to a mass stranding of up to 200 melon-headed whales in Hanalei Bay, Kauai, following naval exercises conducted by U.S. and Japanese vessels during Rim of the Pacific exercises ("RIMPAC") 2004. (Hawaiian Melon-headed Whale Mass Stranding Event of July 3-4, 2004 ("Hanalei Report"), Ex. 8 at 2, attached to Pis.' Mot. for Prelim. Inj.) The Navy and National Marine Fisheries Service's ("NMFS") investigation of a 2000 mass stranding in the Bahamas concluded that Navy sonar was the most plausible source of trauma. (Joint Interim Rep. Bahamas Marine Mammal Stranding ("Bahamas Report"), Ex. 7 at ii, attached to Pis.' Mot. for Prelim. Inj.)

The Navy's First EA examined potential acoustic effects on marine mammals based on criteria set forth in the Marine Mammal Protection Act ("MMPA") and the Endangered Species Act ("ESA") for military readiness activities. (First EA at 4-12.) Level A harassment includes any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild. (Id.) Level B harassment is defined as any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behavioral patterns are abandoned or significantly altered. (Id.) The First EA classified effects leading to physical injury or harm ("Permanent Threshold Shift" or "PTS"), such as permanent or temporary hearing loss, as Level A harassment, and classified effects causing temporary behavioral disruption or harassment ("Temporary Threshold Shift" or "TTS") as Level B harassment. (Id. at 4-13.) Based primarily on studies conducted on captive animals, the First EA proposed a Level A threshold of between 195 to 215 dB, a Level B threshold of between 190 and 195 dB, and a sub-TTS or non-behavioral disturbance level of 190 dB or less. (Id. at 4-13-4-14.) In light of the growing body of literature suggesting that wild, naive marine mammals are behaviorally affected at significantly lower levels than captive animals, NMFS, however, recommended a sub-TTS level of 173 dB. (Id. at 4-15.)

The First EA considered both the Navy's and NMFS' alternative levels. Using NMFS' 173 dB criteria and without factoring in mitigation measures, the First EA concluded that there would be a total of 30,699 sub-TTS marine mammal exposures, 222 TTS exposures, and no PTS exposures per year. (Id. at 4-24.) Using the Navy's 190 dB threshold, the First EA found that there would be 1,585 sub-TTS exposures and the other numbers remained static. (Id. at 4-25)

On January 23, 2007, NMFS issued the First BiOp, determining that USWEX was not likely to jeopardize the continued existence of threatened or endangered species. (First BiOp at 79.) NMFS also issued an Incidental Take Statement ("ITS"), which authorized the "take" of 11,299 endangered whales per year.² (Id.) NMFS determined that this level of anticipated take was not likely to result in jeopardy to the species. (Id.) The ITS set forth terms and conditions by which the Navy had to comply including but not limited to: (1) the implementation of measures reducing the probability of exposures; (2) the development of a monitoring program (by March 31, 2007) to provide an estimate of actual exposure events, observable responses by marine mammals, and the effectiveness of the Navy's mitigation measures; and (3) an obligation for the Navy to continue to consult with NMFS regarding MFA sonar and its effects on marine mammals. (Id. at 79-80.)

On February 2, 2007, the Navy issued its first Finding of No Significant Impact ("First FONSI") for USWEX The First FONSI concluded that the exercises would result in: (1) no significant impacts to biological or cultural resources under the National Environmental Policy Act ("NEPA"); (2) no significant harm to resources in the global commons under Executive Order 12114; (3) no destruction or adverse modification of any critical habitat in accordance with the Endangered Species Act; (4) a potential for Level B harassment of marine mammals (with negligible effects on marine mammal species or stocks); (5) a "may affect" determination for endangered species; (6) no adverse impact to essential fish habitat in accordance with the Magnuson-Stevens Fishery Conservation and Management Act; and (7) consistency to the maximum extent practicable with the Hawai'i Coastal Zone Management Program, Chapter 205A, Hawai'i Revised Statutes ("HRS"). (First FONSI, Ex. 3 at 3, attached to Pis.' Mot. for Prelim. Inj.)

During April of 2007, the Navy conducted two of its proposed six annual USWEXs in Hawaiian waters. Shortly thereafter, two pygmy sperm whales washed up on Hawaiian beaches, one on the island of Lanai and one on Maui. On May 16, 2007, Plaintiffs filed a Complaint for Declarative and Injunctive Relief, alleging that Defendants violated NEPA, 42 U.S.C. §§ 4321-4370(f), the ESA, 16 U.S.C. §§ 1531-1599, the Coastal Zone Management Act ("CZMA"), 16, U.S.C. §§ 1451-1466, and the National Marine...