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

Case 3:07-cv-04771-EDL

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RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife and Marine Resources Section GUILLERMO A. MONTERO, Trial Attorney Natural Resources Section Environment & Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE Benjamin Franklin Station - P.O. Box 7369/ P.O. Box 663 Washington, D.C. 20044 (202) 305-0211 (tel.) / (202) 305-0443 (tel.) (202) 305-0275 (fax)/ (202) 305-0274 (fax) [email protected] [email protected] Counsel for Federal Defendants

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RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

) ) ) Plaintiffs, ) ) v. ) ) CARLOS GUTIERREZ, SECRETARY ) OF THE UNITED STATES ) DEPARTMENT OF COMMERCE, et al. ) ) Defendants. ) ) ____________________________________)

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.,

Civ. Action No. 07-4771-EDL RESPONSE TO ORDER REQUIRING FURTHER INFORMATION

Case 3:07-cv-04771-EDL

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Federal Defendants, by and through their undersigned counsel, hereby submit this response to the Court's January 25, 2008 Order Requiring Further Information (Dkt. #87). As the Court observed, the Supplemental Environmental Impact Statement ("SEIS") stated that the Federal Defendants were evaluating the proposal to make Davidson Seamount an OBIA, and that Defendants would "provide a response prior to the termination of the [2002 NMFS Rule] authorizing SURTASS LFA operations." See Dkt. #87 (quoting SEIS at 10-114). The Court requests a citation to the record that indicates where the Navy responded to the comment concerning potential designation of the Davidson Seamount. A response to this comment appears in the Record of Decision ("ROD") for the SEIS. See

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / Citations to "Exhibit __" refer to exhibits to the Declaration of Guillermo A. Montero, filed concurrently herewith.
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Defs' Prelim. Inj. Exhibit 8 at 56-57. For the Court's convenience, that response is reproduced below: In its comments on the Final SEIS (RTC 4.7.1), NOAA [National Marine Sanctuaries Program] requested that the Navy consider adding Davidson Seamount to the list of OBIAs because it [is] an important feeding ground for sperm whales along the California Coast and is close to the OBIA established for the Monterey Bay National Marine Sanctuary. Under the current and proposed regulations, the Navy must provide annual applications to NMFS for LOAs for each ship's operations for the upcoming year. These annual applications to NMFS for SURTASS LFA sonar LOA renewals use a sensitivity / risk assessment process to assess potential impacts to marine mammals. This process is discussed above and in the SEIS p. 4-37 to 4-51. If in the future the Navy's applications include the Davidson Seamount, the above analytical process using the current literature available on marine mammal seasonal abundances and densities will be utilized to determine the potential for SURTASS LFA operations to affect marine mammal stocks. The Navy will operate SURTASS LFA sonar under all mitigation requirements of the Final SEIS, the Final Rule, and this document. Therefore, the Navy has determined that Davidson Seamount has adequate protection under the current and proposed regulations. Id. In addition to the ROD, the National Marine Fisheries Service's ("NMFS") Final Rule Decision Memorandum (Exhibit A),1/ and Final SEIS Adoption Memorandum (Exhibit B), reflect

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NMFS's determination not to designate the Davidson Seamount as an OBIA. Both documents were considered in the course of NMFS's decision-making process and, accordingly, both form part of the administrative record for the 2007 Final Rule. The relevant excerpt from the Final Rule Decision Memorandum states: Proposals by the NMS Program to the Navy as part of its sanctuaries consultation, included recommendations for new OBIA designations for the Northwestern Hawaiian Islands (NWHI) and Davidson Seamount. . . . Davidson Seamount was recommended by the [NOAA National Marine Sanctuaries Program] based on a statement that sperm whales are around the seamount. The top of the Seamount is 4000 ft below the water surface and we have no information that this seamount is any different than the thousands of others across the Pacific. More recently, we were informed that the NMSP intends to propose to expand the Monterey Bay NMS to include Davidson Seamount. If this occurs, we will change the coordinates of the Monterey Bay NMS OBIA in these regulations. See Exhibit A at 5. The relevant excerpt from the Final SEIS Adoption Memorandum states as follows: After a thorough analysis of the Davidson Seamount, the Navy consulted with NMFS Office of Protected Resources, and decided that the Davidson Seamount, at this time, does not fit the requirements of an OBIA (as set by the Final Rule, § 216.191) due to a lack of data regarding the importance of the grounds as a feeding habitat. See Exhibit B at 11. Thus, the record documents indicate that the Davidson Seamount was not designated as an OBIA.

Dated: January 31, 2008

RONALD J. TENPAS Acting Assistant Attorney General United States Department of Justice Environment & Natural Resources Division JEAN E. WILLIAMS, Chief KRISTEN GUSTAFSON, Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section By: /s/ Guillermo A. Montero GUILLERMO MONTERO, Trial Attorney MA Bar #660903 United States Department of Justice Environment & Natural Resources Division Natural Resources Section

RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL

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Ben Franklin Station, P.O. Box 663 Washington, D.C. 20044-663 Tel. (202) 305-0443/ Fax (202) 305-0274 [email protected] Counsel for Federal Defendants

RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL

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RESPONSE TO ORDER REQUIRING FURTHER INFORMATION Case No. 07-4771-EDL

CERTIFICATE OF SERVICE

I hereby certify that on January 31, 2008, I filed the foregoing document using the Electronic Case Filing System, which will cause electronic notices of filing and service copies to be served upon counsel of record for the parties.

/s/ Guillermo A. Montero Guillermo A. Montero

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