Free Response ( Non Motion ) - District Court of California - California

Case 3:07-cv-04771-EDL

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ROBERT FALK (SBN 142007) ROBIN S. STAFFORD (SBN 200950) SARAH SCHINDLER (SBN 236414) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: [email protected] Email: [email protected] Email: [email protected] JOEL R. REYNOLDS (SBN 85276) CARA HOROWITZ (SBN 220701) NATURAL RESOURCES DEFENSE COUNCIL, INC. 1314 Second Street Santa Monica, California 90401 Telephone: (310) 434-2300 Facsimile: (310) 434-2399 Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE HUMANE SOCIETY OF THE UNITED STATES; INTERNATIONAL FUND FOR ANIMAL WELFARE; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU Plaintiffs, v. CARLOS M. GUTIERREZ, SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; WILLIAM HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; VICE ADMIRAL CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES DEPARTMENT OF THE NAVY; DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY; ADMIRAL MIKE MULLEN, CHIEF OF NAVAL OPERATIONS Defendants. Civil Action No. 07-4771-EDL

PLAINTIFFS' RESPONSE TO ORDER REQUIRING FURTHER INFORMATION

PLAINTIFFS' RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL sf-2460704

Case 3:07-cv-04771-EDL

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In its January 25 Order, the Court directed parties to provide further information on the Navy's treatment of Davidson Seamount, an oceanographic feature lying off the central California coast about 65 nautical miles to the southwest of Monterey. As the Court has noted (Order at 1), the SEIS states that the Navy "is currently evaluating

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 According to the Navy's Record of Decision, the Davidson Seamount (as well as the 20 21 22 23 24 25 26 27 recommendation, then dismisses it on the grounds that NMFS has "no information that this 28
PLAINTIFFS' RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL sf-2460704

the proposal to make Davidson Seamount an OBIA [Offshore Biologically Important Area] and will provide a response prior to the termination of the current NMFS Rule authorizing SURTASS LFA operations." Order at 1 (citing SEIS at 10-114). That proposal was made by the NOAA Office of Program Planning and Integration, which cited the importance of the seamount as a "feeding ground for sperm whales along the California coast" and its proximity to the Monterey Bay National Marine Sanctuary. SEIS at 10-114, Appendix B at G-003. According to NOAA, the agency had previously notified the Navy of the biological importance of the seamount in May 2001. SEIS Appendix B at G-003. The record before this Court makes clear that the Davidson Seamount is not an OBIA. Neither the Navy nor NMFS lists it among the areas designated for exclusion, and the Seamount lies outside the bounds of the Monterey Bay National Marine Sanctuary, the nearest of the few areas to receive that designation. SEIS at 2-16; 72 Fed. Reg. 46892.

Papahanaumokualea Marine National Monument, which President George W. Bush established in the northwest Hawaiian Islands) was not afforded OBIA status because NOAA did not "include detailed information on the biology of the marine mammals in the proposed area" and thus "did not meet" the requirements set forth by NMFS for OBIA petitioners. Nov. 15 Montero Declaration ("Decl.") Exhibit ("Ex.") 8 at 55-56. Along the same lines, NMFS' Final Rule Decision Memorandum takes note of the statement about sperm whales in NOAA's

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seamount is any different from the thousands of others across the Pacific." Jan. 31 Montero Decl. Ex. A at 5; see also id. Ex. B at 11 (ruling out designation because the Navy decided that the seamount does not fit the requirements of an OBIA). Defendants appear not only to have shifted "the burden . . . to prove that additional exclusion zones are warranted" onto members of the

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 awareness of specific areas and seasons that are potentially sensitive." Evans, 279 F. Supp. 2d at 20 21 22 23 24 25 26 27 prospect that future LOAs will consider additional information on marine mammal distribution 28
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public (NRDC v. Evans, 279 F. Supp. 2d 1129, 1163 (N.D. Cal. 2003)), but even onto NMFS' parent agency. In fact, information on sperm whale distribution on Davidson Seamount is readily available from NOAA ­ including in a 2001 report prepared by the Monterey Bay National Marine Sanctuary explicitly in response to the Navy's consultation with the NOAA sanctuary office over SURTASS LFA. Stafford Decl. Ex. 1 at 4 (report posted on NOAA website, showing the Davidson Seamount as "major" area for adult sperm whales). Indeed, NOAA has already issued a Proposed Rule to expand the Sanctuary's boundaries to include the seamount. Stafford Decl. Ex. 2 at 59,061. Defendants' rejection of the Seamount (and the Marine National Monument) on the grounds that the parent agency did not include sufficient information in a proposal letter is untenable, and indicates that NMFS took the same improper approach that the Court identified in 2003: refusing to designate additional OBIAs "despite NMFS' and the Navy's

1163 (emphasis added). As a second reason for rejecting designation of the seamount, the Navy reverts again to the LOA process, noting that it will consider "species abundances and densities" in preparing future applications, and concludes on this basis that the "Davidson Seamount has adequate protection under the current and proposed regulations." Nov. 15 Montero Decl. Ex. 8 at 56-57. Such an approach is both inadequate and improper. As this Court found in Evans, "the mere

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and the Navy may choose to avoid sensitive areas does not relieve NMFS of its specific statutory responsibility in the present to `prescribe regulations setting forth . . . means of effecting the least practicable adverse impact on such species or stock and its habitat.'" 279 F. Supp. 2d at 1163-64 (citing 16 U.S.C. § 1371(a)(5)(A)(ii)(I)); see also Plaintiffs' Reply Brief at 3-4.

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PLAINTIFFS' RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL sf-2460704

Dated: January 31, 2008

MORRISON & FOERSTER LLP By:

/s/ Robin Stafford
Robin S. Stafford Attorneys for Plaintiffs Natural Resources Defense Council, et al.

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