Free Reply Memorandum - District Court of California - California

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ROBERT L. 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 A. 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.; 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 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. CV-07-4771-EDL REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Judge: Hon. Elizabeth Laporte Ctrm: E Hearing Date: January 16, 2008 Time: 2:00 p.m.

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES.................................................................................................................ii INTRODUCTION................................................................................................................................. 1 ARGUMENT ........................................................................................................................................ 2 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS............................................ 2 A. Plaintiffs Are Likely to Succeed on Their MMPA Claims ........................................... 2 1. NMFS Failed to Prescribe Mitigation and Monitoring Measures to Effect the "Least Practicable Impact" on Marine Mammals............................. 2 a. NMFS Failed to Effect the "Least Practicable Impact" on Marine Mammals and Their Habitat in Identifying Areas for Exclusion ............................................................................................... 3 NMFS Has Failed to Show that Its Coastal Exclusion Has the Least Practicable Impact on Marine Mammals ..................................... 6 NMFS's Monitoring Requirements Are Inadequate ............................. 8

NMFS Has Failed to Ensure That the Impacts of LFA Will Be Negligible. ......................................................................................................... 9 NMFS Failed to Authorize Lethal Take of Marine Mammals ........................ 11 NMFS Fails to Show That It Did Not Violate the Notice and Public Comment Requirements of the MMPA........................................................... 13 The SEIS Fails to Consider All Reasonable Alternatives ............................... 15 The SEIS Fails to Adequately Consider Extending Shut-Down Procedures to Protect Schools of Fish ............................................................. 16 The SEIS Fails to Address or Inappropriately Rejects Reasonable Mitigation Measures........................................................................................ 18 The SEIS Fails to Adequately Consider All Individual and Cumulative Impacts of LFA ............................................................................................... 18 Defendants' Biological Opinions Are Arbitrary and Capricious .................... 19 Defendants' Incidental Take Statements Are Inadequate. .............................. 20 a. The ITSs Do Not Set Forth Numerical Values for Estimated Incidental Takes and Fail to Establish That No Numerical Value Could Practically Be Obtained ............................................................ 20 The ITS Does Not Set Forth an Adequate Surrogate for Numerical Values as Required by the Ninth Circuit ........................... 21

Plaintiffs Are Likely to Succeed on Their NEPA Claims. .......................................... 15 1. 2.

Plaintiffs are Likely to Succeed on their ESA Claims ................................................ 19 1. 2.

LFA IS LIKELY TO CAUSE IRREPARABLE INJURY ..................................................... 22 THE BALANCE OF HARMS TIPS IN PLAINTIFFS' FAVOR .......................................... 25

CONCLUSION ................................................................................................................................... 25

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TABLE OF AUTHORITIES CASES Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife ("ACG"), 273 F.3d 1229 (9th Cir. 2001).............................................................................................. 20, 21, 22 Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071 (9th Cir. 2003).......................................................................................................... 17 Churchill County v. Norton, 276 F.3d 1060 (9th Cir. 2001).......................................................................................................... 15 Conn. Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525 (D.C. Cir. 1982) ......................................................................................................... 15 Ctr. for Biological Diversity v. BLM, 422 F. Supp. 2d 1115 (N.D. Cal. 2006)............................................................................................ 20 Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006).................................................................................................... 16, 22 Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002) ......................................................................................................... 15 Half Moon Bay Fishermans' Mktg. Ass'n v. Carlucci, 857 F.2d 505 (9th Cir. 1988)............................................................................................................ 13 Hubbard v. United States, 514 U.S. 695 (1995) ........................................................................................................................... 2 Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir. 1992).......................................................................................................... 18 Idaho Sporting Congress v. Thomas, 137 F.3d 1146 (9th Cir. 1998).......................................................................................................... 18 Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002)............................................................................................................ 24 In re Ball, 185 B.R. 595 (9th Cir. BAP 1995) ..................................................................................................... 2 In re Visness, 57 F.3d 775 (9th Cir. 1995)................................................................................................................ 2 Kokechik Fishermen's Ass'n v. Fed'n of Japan Salmon Fisheries Coop. Ass'n, 839 F.2d 795 (D.C. Cir. 1988) ....................................................................................................12-13 Kunaknana v. Clark, 742 F.2d 1145 (9th Cir. 1984)............................................................................................................ 5 Mt. Diablo Hosp. v. Shalala, 3 F.3d 1226 (9th Cir. 1993).............................................................................................................. 14
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NLRB v. Food Store Employees Union, 417 U.S. 1 (1974) ............................................................................................................................... 2 NRDC v. Evans 232 F. Supp. 2d 1003 (N.D. Cal. 2002)..................................................................................... passim NRDC v. Evans 279 F. Supp. 2d 1129 (N.D. Cal. 2003)..................................................................................... passim NRDC v. Navy, 857 F. Supp. 734 (C.D. Cal. 1994)..............................................................................................3-4, 8 NRDC v. Winter, 2007 WL 3377229 (9th Cir. Nov. 13, 2007) ............................................................................ 2, 7, 25 N.W. Res. Info. Ctr., Inc. v. NMFS, 56 F.3d 1060 (9th Cir. 1995).............................................................................................................. 5 Nat'l Audubon Soc'y v. Butler, 160 F. Supp. 2d 1180 (W.D. Wash. 2001) ....................................................................................... 22 Nat'l Black Media Coalition v. FCC, 791 F.2d 1016 (2nd Cir. 1986) ......................................................................................................... 14 Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) ........................................................................................................................... 3 Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722 (9th Cir. 2001)............................................................................................................ 22 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ............................................................................................................................. 4 Or. Natural Desert Ass'n v. Rasmussen, 451 F. Supp. 2d 1202 (D. Or. 2006)................................................................................................. 12 Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984).......................................................................................................... 15 U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18 (1994) ............................................................................................................................. 2 United States v. James, 478 U.S. 597 (1986) ......................................................................................................................... 20 Westlands Water Dist. v. U.S. Dep't of the Interior, 376 F.3d 853 (9th Cir. 2004)............................................................................................................ 16 STATUTES 5 U.S.C. § 706 ........................................................................................................................................ 4

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§ 1371(a)(5)............................................................................................................................... passim § 1532(19) ........................................................................................................................................ 21 § 1536 (b)(4)............................................................................................................................... 20, 21 40 C.F.R. § 1502.9(c)........................................................................................................................................ 15 § 1502.14 .......................................................................................................................................... 17 § 1502.20 .......................................................................................................................................... 15 § 1508.28 .......................................................................................................................................... 15 50 C.F.R. § 402.14(i) ........................................................................................................................................ 21 66 Fed. Reg. 44550 ................................................................................................................................................ 20 67 Fed. Reg. 40232-38........................................................................................................................................... 20 40234 ................................................................................................................................................ 20 46720 ................................................................................................................................................ 12 46722-29........................................................................................................................................... 12 46749 .................................................................................................................................................. 4 72 Fed. Reg. 46852-54 .......................................................................................................................................... 13 46861 ................................................................................................................................................. 6 46862-64........................................................................................................................................... 12 46867 .................................................................................................................................................. 6 46867-68........................................................................................................................................... 12 46872 .................................................................................................................................................. 6 46877 .................................................................................................................................................. 8 46878 .......................................................................................................................................... 5, 6, 7 46879 .............................................................................................................................................. 5, 6 46883-84........................................................................................................................................... 10 46886 .................................................................................................................................... 11, 13, 24 46887 .................................................................................................................................................. 5 46889 ................................................................................................................................................ 10 46892 .................................................................................................................................................. 5 46893 .................................................................................................................................................. 4 H.R. Conf. Rep. No. 92-1488 (1972), reprinted in 1972 U.S.C.C.A.N. 4187 ..................................... 13 H.R. Rep. No. 108-354 (2003), reprinted in 2003 U.S.C.C.A.N. 1407 ................................................. 3

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INTRODUCTION The concerns that led this Court to impose a permanent injunction in the first phase of this litigation four years ago ("Evans")--and the core legal predicates for that decision--remain present in full force, and require the same outcome here. The Navy again has failed to comply with MMPA and NEPA requirements that were enacted to minimize harm to marine life and the environment, i.e., requirements that incidental take have no more than a negligible impact on species and stocks; that NMFS prescribe mitigation measures that have the least practicable impact; that take is permitted only pursuant to full public notice and comment procedures; and that the agencies take a "hard look" at reasonably foreseeable environmental impacts, alternatives, and mitigation measures. Similarly, NMFS has again issued arbitrary and capricious Biological Opinions and inadequate Incidental Take Statements. Scientific data since the issuance of the prior injunction have only underscored the damaging impacts of ocean noise, and that many populations of marine mammals are small and vulnerable to such impacts. Defendants urge a dismissive approach to these concerns and legal requirements to allow the Navy to dramatically reduce the mitigation measures that have governed LFA since 2003. Among the most serious of the defects in Defendants' environmental documents is that they defer and shift the required analysis and decision-making under the governing statutes to the largely ministerial Letter of Authorization ("LOA") process. Because the LOA process has been devoid of public participation and scrutiny, this would allow critical decisions about future deployment to be made behind closed doors. Hiding behind the LOA process to frustrate public participation in such decisions, and thereby decreasing the level of environmental protection, strikes at the heart of the MMPA and NEPA. In arguing that Plaintiffs have not firmly established that irreparable harm "will" occur, Defendants ignore controlling precedent that requires only a showing that irreparable harm is "possible." Plaintiffs have established both a strong probability of success on the merits, and the possibility (indeed, likelihood) of irreparable harm. Plaintiffs also have raised "serious questions" regarding Defendants' violation of law and have demonstrated that the balance of harms tips decidedly in Plaintiffs' favor. The Court's imposition of narrowly tailored injunctive relief in its 2002 and 2003 decisions was the direct result of this very same balancing.
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The granting of such relief was ratified earlier this month by the Ninth Circuit decision in NRDC v. Winter, on review of a mid-frequency active sonar case currently pending in the Central District of California. 2007 WL 3377229 (9th Cir. Nov. 13, 2007). Ruling on the trial court's issuance of preliminary injunction in that case, the Ninth Circuit concluded that the plaintiffs had shown that the balance of hardships tips in their favor if a properly tailored injunction is issued providing that the Navy's operations may proceed if conducted under circumstances that provide satisfactory safeguards for the protection of the environment. Moreover, the public interest would be advanced by an injunction that required adequate mitigation measures. Id., at *1. Until the claims in this action are resolved, this is precisely what Plaintiffs seek on this motion: a properly tailored injunction safeguarding marine life, while also permitting Navy operations to proceed under the identical mitigation measures that have governed for the past five years. ARGUMENT PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. A. Plaintiffs Are Likely to Succeed on Their MMPA Claims. 1. NMFS Failed to Prescribe Mitigation and Monitoring Measures to Effect the "Least Practicable Impact" on Marine Mammals.

Defendants would have the Court believe that the landscape has changed so dramatically since Evans as to make the Court's findings in that case irrelevant. Despite Defendants' characterizations, Plaintiffs have not claimed that Evans carries the force of "binding precedent." See Defs.' Opp. to Pls.' Mot. for Prelim. Inj. ("Opp.") at 9. Nevertheless, the Court in that case faced a virtually identical administrative process; a go-ahead from NMFS with similar justifications; and legal requirements that remain substantially the same as they were five years ago. It therefore defies reason to suggest, as Defendants do, that the Court's previous opinion, and the logic applied therein, have no persuasive effect on these proceedings.1 And the fact that the 2007 authorization of LFA took place in a separate rulemaking process in no way alters this fundamental principle.2 Judicial opinions are considered "presumptively correct" and "valuable to the legal community as a whole," and the policy of consistency among judicial opinions applies even when courts are not technically bound. U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 26 (1994); Hubbard v. United States, 514 U.S. 695, 711 (1995); see also In re Ball, 185 B.R. 595, 597 (9th Cir. BAP 1995); In re Visness, 57 F.3d 775 (9th Cir. 1995). 2 Cases cited by Defendants are not to the contrary. NLRB v. Food Store Employees Union, 417 U.S. 1, 9 (1974), does not provide that an agency can make identical material mistakes and justify them on the basis that the decision has occurred in a new rulemaking. Similarly, Defendants' assertion that
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As was true in Evans, NMFS may authorize incidental take only if it (1) finds that impacts on marine mammal species and stocks will be negligible and (2) prescribes mitigation and monitoring measures to effect the "least practicable adverse impact" on those species and stocks. See 16 U.S.C. § 1371(a)(5)(A). In forging ahead with inadequate mitigation in disregard of the Court's previous findings on these issues, and in failing to fulfill other requirements of the Act's incidental take provisions, NMFS has violated the MMPA.3 a. NMFS Failed to Effect the "Least Practicable Impact" on Marine Mammals and Their Habitat in Identifying Areas for Exclusion.

NMFS comes to this Court with virtually the same set of geographic exclusions it proposed in 2003, arguing once again that the measures it has chosen "are within its discretion and additional 10 measures are unnecessary or impractical." See 279 F. Supp. 2d at 1163. NMFS is mistaken. 11 First, Defendants argue that NMFS's choice of mitigation measures represents a reasonable 12 exercise of its discretion. Specifically, they claim that the 12% cap that NMFS imposed to justify its 13 negligible impact finding relieves it of its burden to put additional areas off limits to sonar, since the 14 Navy (not NMFS) will thereby "avoid planning LFA sonar operations in areas of known high marine 15 animal densities." Opp. 12. But the Court considered and rejected precisely this scheme in Evans, 16 holding that "the mere prospect that future LOAs will consider additional information on marine 17 mammal distribution and the Navy may choose to avoid sensitive areas does not relieve NMFS of its 18 specific statutory responsibility in the present to `prescribe regulations setting forth . . . means of 19 effecting the least practicable [adverse] impact on such species or stock and its habitat.'" 279 F. Supp. 20 2d at 1163-64 (citing 16 U.S.C. § 1371(a)(5)(D)(ii)(I)); see also NRDC v. Navy, 857 F. Supp. 734, 73721 22 23 24 25 26 27 28 Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) effectively rejects the fundamental principle of stare decisis and stretches the meaning of that case beyond recognition. Brand X holds instead that an agency need not follow a court's interpretation of an ambiguous statute, unless agency interpretation has been closed off under the first step of Chevron analysis. Id. 3 Defendants note, without argument, that NMFS is required by the amended MMPA to consider personnel safety, practicability, and impact on the effectiveness of military readiness in prescribing mitigation. Opp. 9. But the cited provision requires only that certain factors be included in the agency's consideration of "practicability"; it does not remove the Act's stringent "least practicable adverse impact" standard or its emphasis on consideration of significant habitat (16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa), (ii) (determination "shall include consideration" of personnel safety and other factors); see also H.R. Rep. No. 108-354 (2003), U.S.C.A.N.N. 1407, 1447. In fact, the Court previously considered these practicability factors in Evans, finding that the agency's conclusions ran counter to evidence in the record. 279 F. Supp. 2d at 1161-64.
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38 (C.D. Cal. 1994).4 Such a scheme--which would assign NMFS's statutory duty to the Navy's discretion, shift a present duty into the future, and substitute the negligible impact provision for the Congressionally mandated "least practicable impact" standard for mitigation--is clearly contrary to law. 16 U.S.C. § 1371(a)(5)(D)(ii)(I).5 Further, Defendants' justification for NMFS's violation is a straw man. Taking a version of Plaintiffs' recommended geographic restrictions to the extreme, they state that "it would not be `practicable' to designate every productive area of the ocean as an OBIA." Opp. 10-11. Defendants argue an all-or-nothing proposition. If it is not practicable to put every productive area off-limits to LFA, it is still indisputably practicable to exclude some. 72 Fed. Reg. 46893; Ex. 14 (process for designating OBIAs). For example, the Navy has been able to operate for five years under a modified stipulated injunction notwithstanding the fact that NMFS made the same broad statement about the impracticability of excluding "huge swaths" of ocean in its 2002 Final Rule. See Opp. 11 (citing 67 Fed. Reg. 46749). NMFS's resistance to identifying additional exclusion areas cannot be squared with what the MMPA requires and Plaintiffs request: the prescription of measures to ensure the least practicable adverse impact to marine mammals and their habitat.6 Defendants are thus left to defend on its face an agency decision to designate virtually no offshore exclusion areas outside the coastal United States, and none where the Navy has operated for Defendants' invocation of Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004), to support their illegally expansive view of NMFS's discretion is inapposite. Unlike the present case, Norton was a suit for action unlawfully withheld, brought under APA § 706(1), in which plaintiffs failed to challenge a discrete final agency action. Id. at 63-64. Here Plaintiffs, under APA § 706(2), challenge a specific statutory duty that must be discharged through the issuance of regulations--in other words, a final agency action--and Defendants have not contended otherwise. 5 Defendants also argue that their safety zone monitoring is sufficient as an alternative to geographic mitigation. Aside from its limited efficacy within the 2 km safety zone and its manifest inability to prevent the large number of takes outside it, this form of mitigation does not satisfy the clear statutory directive to effect the least practicable impact on such species or stock "and its habitat." 16 U.S.C. § 1371(a)(5)(D)(ii)(I). 6 Defendants theorize that NRDC's claim amounts to an illegal imposition of the "specified geographical region" requirement, from which the NDAA exempted military readiness activities. Opp. 10. Defendants ignore the obvious fact that the "least practicable impact" provision is a distinct requirement of the MMPA that expressly requires NMFS to minimize impacts on both species and habitat (16 U.S.C. § 1371(a)(5)(D)(i)(I)), and that provided a separate basis for the Court's ruling in Evans. 279 F. Supp. 2d at 1161-64. This provision is unambiguous: Where, as here, an activity's impacts on marine mammals can practicably be mitigated, such limitations are plainly necessary to satisfy the requirements of the MMPA. Id.; 16 U.S.C. § 1371(a)(5)(A)(i)(II). Several Defendants' statements during the NDAA's legislative process, and Congress's express understanding of the amendments, support this conclusion. See Supp. Exs. 2-3; Defs' Ex. 74 (changes in incidental take permitting "would not eliminate the existing requirements for mitigation and monitoring").
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the past five years. 72 Fed. Reg. 46892. As the Court observed in Evans, "NMFS has the ability to identify which areas and seasons to avoid based on its own data." 279 F. Supp. 2d at 1163 (citing LMRIS database). Yet there is no indication in the Final Rule or SEIS that NMFS utilized the data available through the government's LMRIS database, let alone the Duke University OBIS-SEAMAP database, IWC Scientific Committee journals and reports, or the numerous sources on marine mammal populations in the scientific record. See 72 Fed. Reg. 46878-79; see also SEIS at 10-136, G008 at 4, Exs. 13; 84; 90­92; Parsons Dec. ¶¶ 11­12; Whitehead Dec. ¶¶ 10­11; Calambokidis Dec. ¶ 9. Indeed, NMFS's approach appears to have been decidedly passive, declining, for example, to exclude any part of the Northwestern Hawaiian Island National Marine Sanctuary on the grounds that the public did not furnish specific information. 72 Fed. Reg. 46887; see also id. 46879 (rejecting exclusion of hotspots because commenters did not provide information sufficient "to begin the designation process outlined in the regulations").7 Even in this dim light, Defendants' conclusions make little sense. They explain that they ruled out Marine Protected Areas ("MPAs") within 12 nautical miles ("nm") of shore, but have no answer as to why NMFS failed to exclude any new MPAs outside that distance other than the Gully, including such world-renowned ocean habitat as the Galápagos Marine Resources Reserve, the Great Barrier Reef National Marine Park, and the PELAGOS cetacean sanctuary described at length in Hoyt. Ex. 88; Opp. 13-14; 72 Fed. Reg. 46878-79; Ex. 89 at 34-39, 55-56 (Mediterranean MPAs existing or proposed by ACCOBAMS Scientific Committee); Hoyt Dec. ¶¶ 5, 7-10. Nor apparently did they even consider renewing the LFA exclusion areas that have been in place for five years in the Northwest Pacific, which include migratory routes for the critically endangered western gray whale and breeding grounds Defendants suggest that Plaintiffs somehow failed to meet their public comment obligations because they declined to participate in NMFS's post hoc regulatory process for OBIAs. Opp. 13 n.3. In fact, Plaintiffs alerted the agency to their concerns about the lack of off-limit areas outside the U.S., precisely stated the legal issues at stake, and gave numerous examples of both specific areas they believed should qualify as OBIAs and additional sources of information that the agency should use in designating them. E.g., Ex. 9 at 10-12 (referencing list of offshore cetacean habitat proposed as MPAs by ACCOBAMS Scientific Committee). This more than satisfies the standards for public comment. Kunaknana v. Clark, 742 F.2d 1145, 1148 (9th Cir. 1984) (no "broad rule which would require participation in agency proceedings as a condition precedent to seeking judicial review of an agency decision"); N.W. Res. Info. Ctr., Inc. v. NMFS, 56 F.3d 1060, 1067 (9th Cir. 1995) (no waiver of right to object when agency was "well aware of criticisms . . . before, during and after"). Defendants' attempt to place its responsibility on the public under the guise of a public comment requirement is precisely the sort of burden-shifting that the Court rejected in Evans. 279 F. Supp. 2d at 1163.
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for endangered humpback whales. 72 Fed. Reg. 46878-79; Ex. 21 at 1-2; Johnson Dec. ¶ 26 (stating that no impacts on western gray whales are expected since the Navy continues to avoid migratory areas under the Court's injunction).8 NMFS's virtually complete lack of recognition of offshore marine mammal habitat outside North America cannot plausibly be reconciled with its responsibility under the MMPA to prescribe "least practicable adverse impact" mitigation for the LFA system. 16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa). b. NMFS Has Failed to Show that Its Coastal Exclusion Has the Least Practicable Impact on Marine Mammals.

NMFS argues that its reversion to a 12 nm coastal exclusion was reasonable because it had sufficiently evaluated the available options and considered the relevant biological factors. Both claims 10 are without merit. First, the Court's finding in Evans indicates that the Navy did not explain "why the 11 zone could not be extended more than [12 nm] but less than 43 to 200 [nm]"--and not, as Defendants 12 would have it, Opp. 14-15, why it could not be extended less than 43 nm. 279 F. Supp. 2d at 1162 13 (emphasis added). Defendants have presented no evidence to alter this specific conclusion. See 14 72 Fed. Reg. 46861, 46867; SEIS at 3-161, 10-83, 10-122 (suggesting, by contrast, that LFA will 15 usually operate beyond the shelf break in deeper offshore waters). Instead, they observe that the Navy 16 may need to train closer to shore in certain areas, such as choke points, if operations demand it, Opp. 17 15, 40; but this general assertion is not inconsistent with the Court's reasonable finding in 2003 that, in 18 some areas, a narrower exclusion zone would apply. 279 F. Supp. 2d at 1162. 19 Indeed, contrary to Defendants' assertions, Opp. 15, NMFS (and the Navy) did not consider the 20 very rubric used throughout much of the LFA operating area these last five years: an exclusion of "at 21 least 60 [nm], or 30 [nm] from the 200 meter isobath [i.e., the shelf break], whichever is greater." 22 23 24 25 26 27 28 Defendants' explanation of their failure to exclude any part of the Oyashio/Kurashio area adds nothing to the public rationale given by NMFS five years ago. Opp. 12-13 (citing portions of SEIS and 2007 Final Rule that declare the area a "large ocean expanse" and refer back to rationale in 2002 Final Rule). That explanation remains inconsistent with NMFS expert Hollingshead's agreement that the area9 would qualify for future nomination as an OBIA. 279 F. Supp. 2d at 1162; Wang Dec. ¶ 7. Defendants are correct, Opp. 15, that NMFS, in its Final Rule, dismisses (without analysis) a flat 30 or 60 nm stand-off distance, which was also applied in some areas by the permanent injunction; but it does not consider the contour-based exclusion that applied to the Philippine Sea under the Court's Order. 72 Fed. Reg. 46872.
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Ex. 3 ¶ 5 (emphasis added).9 This contour-based measure takes LFA farther from the continental shelf

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and the shelf break--the habitat that Defendants agree has the highest concentrations of animals--than Defendants have accounted for. SEIS at 4-76 to 77; see also 72 Fed. Reg. 46878 (basing its east-coast exclusion zone on the shelf break because that avoids "animal concentrations and migration routes" on the shelf). NMFS's failure to consider the very exclusion regime that had been in place for five years is hardly "reasonable," and certainly did not relieve its burden of effecting the "least practicable impact" on marine mammals. See Winter, 2007 WL 3377229, at *2 (ordering tailored injunction on Navy mid-frequency, in part given "the Navy's past use of additional mitigation measures to reduce the harmful effects"); Johnson Dec. ¶ 33 (LFA program manager's belief that mitigation measures "had placed much of the LFA operations in areas with fewer marine mammals").10 Even for the two stand-off distances it does consider, Defendants' claim that NMFS accounted for critical factors--such as the disproportionately high number of endangered species within 3 nm of shore--is baseless. Whitehead Dec. ¶¶ 12-15 (observing that such species make up 50% of ESA- and 60% of IUCN-listed marine mammals). In their brief, Defendants note references to these species in NMFS's adopted SEIS, but cannot cite any such treatment in the assumptions they made to determine the coastal exclusion itself. See SEIS at 4-70 to 79. Not only does NMFS not distinguish between listed and non-listed species in making its determination, but, in assuming these vulnerable near-coastal species are evenly distributed across the continental shelf, it substantially underestimates the relative impacts that the smaller 12 nm exclusion zone would have. Whitehead Dec. ¶ 14. Given the critical goal of minimizing impacts to endangered marine mammal species and populations, this omission is significant. 16 U.S.C. § 1361(1), (2); 279 F. Supp. 2d at 1139, 1160-62, 1188-92. Further, it is undisputed that NMFS gave no consideration to the particular difficulty that nearshore animals would have in escaping the sound field, SEIS at 4-73, for which Defendants do not deny the potential for harm. Opp. 15. Defendants' vague response that the LFA vessel would not be moving toward shore "for an extended period of time," id. 15-16, does not absolve NMFS of its duty to have carefully considered the heightened impacts such movements could have--particularly when, as the Navy has stated, LFA sometimes doubles back on itself in "a racetrack pattern" every 12 hours or Defendants' claims that the need for "flexibility" makes a wider exclusion zone impracticable are also belied by the Navy's record under the permanent injunction, which set a coastal exclusion of at
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so. Johnson Dec. ¶ 11. Finally, NMFS simply did not consider how all of these factors, including its take numbers, could be mitigated through a wider coastal exclusion, such as the contour-based exclusion that has been in place for five years. This narrow approach does not fulfill the careful analysis required under the MMPA. 279 F. Supp. 2d at 1159 ("Although the agency has some discretion to choose among possible mitigation measures, it cannot exercise that discretion to vitiate this stringent standard"); Navy, 857 F. Supp. at 739-40 (finding NMFS's rejection of offshore site illegal under MMPA where it did not fully consider relevant factors in weighing mitigation benefit).11 c. NMFS's Monitoring Requirements Are Inadequate.

Defendants' word parsing cannot obscure the fact that NMFS still fails to provide adequate monitoring. Defendants argue that the SEIS explains that aerial monitoring is infeasible because LFA vessels "ordinarily do not operate with other fleet assets, so naval aircraft would normally be unavailable." Opp. 16 (emphasis added). Defendants' word choice is telling as it is an implicit admission that the SEIS inappropriately neglects to require aerial monitoring when aircraft are available because LFA vessels are operating with or near other fleet assets. Further, Defendants cannot so easily dismiss the fact that the Deputy Secretary of Defense has twice ordered aerial monitoring for certain mid-frequency active sonar activities.12 Defendants do not even attempt to explain why monitoring used by the Navy for certain mid-frequency active sonar activities should not be used during optimal conditions for LFA sonar operations. Defendants also choose their words carefully in rationalizing their dismissal of additional monitoring options. They claim that the SOSUS arrays are "degraded" and do not provide "real-time" information. Opp. 17; 72 Fed. Reg. 46877. However, they do not claim that the SOSUS arrays no longer work or that the information they gather could not be used for planning LFA exercises and monitoring their impact; they merely raise the specter of deficiency without exploring the actual least 60 nautical miles throughout nearly all of the vast LFA operating area in the Philippine Sea while establishing different stand-off distances elsewhere. Exs. 3 at ¶ 5, 4 at ¶ 4. 11 Defendants also have not shown why enlarging the buffer zone around their few exclusion areas by more than a single kilometer would not be practicable, especially since, by their own analysis, noise producing high levels of take would otherwise reach far into the area. Pls.' Mot. for Prelim. Inj. ("Mot.") 12 n.12; Opp. 15; SEIS at 4-73. 12 In June 2006, the Navy was ordered to "coordinate a focused monitoring effort...[including] at least one dedicated aircraft or one dedicated vessel for realtime monitoring." Ex. 79 at 3. In January 2007, the Deputy Secretary ordered that "Navy aircraft participating in exercises at sea will conduct and maintain, when operationally feasible and safe, surveillance of marine species." Ex. 80 at 2.
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substance of any deficiencies.13 However Defendants explain NMFS's failure to require additional monitoring or fully examine alternatives, they cannot wordsmith their way out of a finding that such action is arbitrary and capricious. 2. NMFS Has Failed to Ensure That the Impacts of LFA Will Be Negligible.

The MMPA contains the same fundamental requirements for incidental take permitting as it did at the time of Evans, prior to the NDAA's passage.14 Specifically, NMFS must find, after notice and opportunity for comment, that the specified activity will have no more than a "negligible impact" on marine mammal species and stocks. 16 U.S.C. § 1371(a)(5)(A)(i)(I). Because Defendants rely on a construction of this Court's holding regarding negligible impacts in Evans, it is necessary to revisit that holding once again. Defendants are correct that the Court did not find the 12% cap on take for each species to be per se arbitrary and capricious; Plaintiffs never asserted otherwise. See Mot. 15. Yet the Court was expressly "concerned that, without more restrictions on deploying LFA in sensitive areas and during sensitive periods, there will be occasions where the impact on particular populations is not merely negligible." 279 F. Supp. 2d at 1159 (emphasis added). For that reason alone, the Court required strengthened mitigation measures. The Court's decision not to hold the 12% cap arbitrary and capricious cannot be equated with affirmative approval of that cap or assurance that, without additional mitigation, the impacts of a 12% take would necessarily be negligible. Id. NMFS's failure to provide the tailored mitigation ordered in Evans to avoid training "in sensitive areas and during sensitive periods" (279 F. Supp. 2d at 1159) violates the MMPA. E.g., Ex. 21 at 1-2 (listing some populations protected under order); Johnson Dec. ¶ 26. Defendants err when they assert that their "monitoring and reporting data" ensure that impacts remain negligible and injuries are "virtually nil." Opp. 18. Although Defendants estimate that no more than 11.2% of any marine mammal stock has experienced take in a given year, and that most stocks have experienced 6% take or less, id., their estimates--which are hardly trivial--are in fact based on They also claim that passive gliders would merely be "vessels of opportunity," Opp. 17, without defining the term or examining whether such gliders could be owned and operated by the Navy. 14 Although NMFS no longer must determine that incidental take will apply only to "small numbers" of marine mammals in "specified geographical regions," these factors remain important in determining whether impacts are negligible. Commenting on the elimination of the "small numbers" provision during the NDAA process, NMFS officials explained: "A substantive effect on more than a small proportion of a population would likely have more than a negligible impact; therefore, numbers are taken into account, based upon biological significance." Supp. Exs. 2 at 6; 3 at 4 (emphasis added).
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predictive modeling, not empirical observation. In actuality, the Navy's monitoring is severely limited to a 2 km area around the ship, and even within this range detection rates have admittedly been very low. Ex. 20 at 19 (noting 3 visual detections and 0 passive acoustic detections since 2002); Johnson Dec. ¶¶ 32-33; see also Baird Dec. ¶¶ 7, 10. As this Court observed, such low detection rates suggest one of three explanations: the Navy's monitoring measures are deeply flawed, LFA has displaced marine populations, or the permanent injunction worked to prevent take of marine mammals. See 279 F. Supp. 2d at 1189 (finding the absence of detections "begs the question," pointing to one of these alternative explanations). Impacts to marine mammals are notoriously difficult to observe in any environment, let alone across the impact area of LFA. Ex. 81 at 239-41; Ex. 95; Weilgart Dec. ¶ 9; Parsons Dec. ¶¶ 8, 13; Baird Dec. ¶ 12.15 Defendants' claim about the effectiveness of abundance modeling similarly misses the mark. First, NMFS does not dispute Plaintiffs' observation, Mot. 15-16, that the FEIS' models both aggregate most species into broad groups and assume those species are part of vast stocks, in contradiction of the agency's own past practice. See Opp. 19. Despite Defendants' efforts to minimize the relevance of these models, id., they explicitly remain the basis (along with the Navy's modeling of representative sites in the North Pacific) for NMFS's adoption of a 12% "upper bound" of expected impacts for the new five-year permit, and are thus essential to its negligible impact determination. 72 Fed. Reg. 46883-84, 46889.16 Second, the abundance numbers used in the Navy's LOA applications, which assume that most species are evenly distributed in vast stocks over large ocean basins, Opp. 19, fail to take account of best available science on population structuring--particularly in areas such as the Northwest Pacific Ocean that largely fall outside the bounds of NMFS stock assessments. Wang Dec. Even assuming arguendo that reported take levels were accurate, they raise serious concerns. For example, at least four marine mammal populations experienced take greater than 5% for two operational years, yet no attempt has been made to evaluate the cumulative effects of sustained take to determine whether impacts on these populations are in fact "negligible." Twelve percent take was never a "magic number," below which take would be shielded from judicial scrutiny. See Evans, 279 F. Supp. 2d at 1159. 16 The other basis for the Navy's negligible impact determination is the Navy's "case study" of nine representative areas in the North Pacific. Opp. 19. As noted below, this modeling from the Navy's first few LOA applications fails to reflect the best available science on abundance in the region; but even if it were accurate, it plainly does not address the other regions covered by the new five-year permit, including the Eastern Pacific (and Hawaii), the North Atlantic, and the Mediterranean. The Navy's new modeling is therefore insufficient to cure a determination that the MMPA requires--after adequate public notice and comment--for incidental take regulations to issue. 16 U.S.C. § 1371(a)(5)(A).
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¶ 10 (questioning data used to generate most abundance estimates in South China Sea region); Parsons Dec. ¶ 10; see also Baird Dec. ¶¶ 14-17. NMFS's reliance on abundance numbers that fail to differentiate among populations makes its assumption of negligible impacts arbitrary and capricious. More effective mitigation measures than proposed are necessary. 3. NMFS Failed to Authorize Lethal Take of Marine Mammals.

Defendants do not deny the significant developments that have taken place since 2002 in the investigation of beaked whale mortalities; they suggest only that none of it applies to LFA. Opp. 2223. They contend that NMFS's decision not to issue an authorization for lethal take is based on three conclusions: that there are no new data (1) linking LFA to whale strandings, (2) linking LFA to injuries, or (3) "describing mechanisms of harm to marine mammals from LFA sonar." Opp. 23 (citing 72 Fed. Reg. 46886). None have merit. Defendants' claim that there are no new data that "describ[e] mechanisms of harm to marine mammals from LFA sonar" rests primarily on the assumption that beaked whales, hearing "poorly" in the low frequencies, would not respond behaviorally to LFA as they do to mid-frequency sonar. Opp. 20, 23; 72 Fed. Reg. 46886. In fact, scarcely any information exists on the hearing ability of beaked whales, SEIS 3-60 to 64; but even assuming NMFS's assumptions about beaked whale hearing were correct, the best empirical evidence indicates that beaked whales, like certain other very reactive marine mammals, react to sounds well outside their most sensitive range of hearing. Indeed, beaked whales are presumed to hear poorly in the mid-frequencies as well, and yet have undisputedly at times been injured and killed on exposure to mid-frequency sonar. Soto Dec. ¶ 10. Another acoustically vulnerable species, the harbor porpoise, is known to react aversively to sounds at levels not far above its ability to detect them. Ex. 58; Soto Dec. ¶ 10. Beaked whales have been shown to alter their dive patterns--precisely the category of behavior that has been "proposed" as a mechanism for strandings, Opp. 21--at relatively moderate levels of exposure to shipping noise, whose energy output is predominantly in the low frequencies. Ex. 57.17 While dwelling on hearing data from other species,

Like airguns and ships, LFA also produces sound in the mid-frequencies at significantly lower levels. Exs. 48 at 121 (airguns); 57 at 690 (ships); FEIS at 10-129 (harmonics from LFA).
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NMFS fails to consider any of this countervailing evidence in its Final Rule. 72 Fed. Reg. 46862-64.18 Likewise, Defendants' assertion that "LFA sonar has never been implicated in any stranding" or injury, Opp. 22-23, disregards the recognized limitations in the Navy's monitoring effort. As the Court observed in 2003, none of the Navy's detection measures "are designed to detect marine mammals beyond two kilometers from the LFA source" (279 F. Supp. 2d at 1160); and, indeed, the only mechanism with any potential to detect animals beyond that range, the Navy's passive acoustic system, improbably failed to record a single animal in five years. Ex. 20 at 19; Baird Dec. ¶¶ 7-13. Defendants are left to repeat NMFS's claim that "none of the 19 strandings reported in Asia during the first fiveyear period" coincided with LFA operations, Opp. 22; but, incredibly, that stranding review was expressly based on an amateur website that a college student operated for only 18 months using English-language news stories. See Ex. 99; 72 Fed. Reg. 46867-68; Wang Dec. ¶ 9 (status of stranding reporting in region). Drawing such a conclusion ("never been implicated") from such a review is not an example of "reasoned" agency decision-making. Opp. 22; see, e.g., Or. Natural Desert Ass'n v. Rasmussen, 451 F. Supp. 2d 1202, 1212 (D. Or. 2006). The best evidence that has emerged since 2002--contrary to Defendants' assumptions at the time, Ex. 28 at iii, 67 Fed. Reg. 46720, 46722-29--indicates that exposure to more widely-used sonar systems causes "severe" hemorrhaging and tissue damage in beaked whales, that these injuries occur at sea (and not merely from the fact of stranding), and that they are likely to go undetected. Exs. 31 at 448-54; 43 at 182; 87 at 142, 146, 151. Alarmingly, the evidence also shows that beaked whale populations in various parts of the world are smaller and more discrete than previously suspected. E.g., Exs. 84-86; Whitehead ¶ 9. This is not a case that presents a "very remote possibility" of serious injury and lethal harm, and NMFS's failure to authorize these levels of take, even for operations similar to those of the 1996 Greek strandings, violated the MMPA. Kokechik Fishermen's Ass'n v. Fed'n of

As Plaintiffs noted, NMFS has also claimed that LFA operations would not present other features common to sonar-related mortalities of beaked whales. Mot. 17. Defendants respond by stating that LFA would not operate "in areas like offshore canyons" Opp. 21, but that does not address the fact, raised by Plaintiffs, that, at 12 nm, LFA ships would train no farther from shores with deep water than the sonar vessels implicated in various stranding events. Mot. 17; Exs. 28 at 30-33; 33 at 32; 41 at 28; Soto Dec. ¶ 7. Moreover, the Navy has stated that LFA may in fact be operated close to choke points, "such as entrances to straits, channels, and canals." SEIS at 2-7.
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Japan Salmon Fisheries Coop. Ass'n, 839 F.2d 795, 801 (D.C. Cir. 1988).19 4. NMFS Fails to Show That It Did Not Violate the Notice and Public Comment Requirements of the MMPA.

The MMPA's notice and comment directive is not merely a technical hoop that parties must jump through before taking action. Rather, it is vital to the decision-making process itself.20 By failing to provide information that even NMFS considers necessary to support its negligible impact finding, 6 NMFS obstructed the MMPA's notice and public comment requirement. 7 Defendants do not deny that NMFS reviews specific modeling information that the Navy 8 presents during the LOA process, or that it makes determinations based on that information. 72 Fed. 9 Reg. 46852-54, 46886; SEIS at 4-37. Instead, they argue that the public is not entitled to comment on 10 these data or findings because the regulations do not require the agency to provide public notice and 11 comment on its LOA process. Opp. 24. Defendants' focus on the LOA process is misplaced. The 12 relevant inquiry is whether NMFS provided sufficient notice and comment before making its broad 13 finding and before prescribing means of effecting the least practicable adverse impact. Because NMFS 14 failed to meet this basic MMPA requirement, its findings should be rejected. 15 Defendants claim that NMFS met its obligation because it sought public comment on the 16 Navy's application and the Proposed Rule. Opp. 23. Their claim is unsupported. First, Defendants fail 17 to note that the "negligible impact" finding and "least practicable impact" prescriptions rely, in part, on 18 19 released to support its action and the data it excluded from review. For example, NMFS did not submit 20 21 22 23 24 25 26 27 28 Defendants' statement that Plaintiffs do not challenge the 180 dB threshold for physical injury is incorrect. The best available science indicates that whales in the Bahamas ­ the only mortality event for which baseline siting data are available ­ were likely to have been exposed to sound levels of 150-60 decibels for 50-150 seconds. Ex. 48 at 120 (published study); Ex. 27, Annex K at 7 (IWC Scientific Committee report). Defendants' 180-decibel threshold is established on the basis of direct tissue damage; it has not been revised despite these data and the weight that has been placed on behavioral reactions (such as changes in dive patterns) to explain the injuries observed in beaked whales. SEIS at 4-30 to 32; Ex. 43 at 185; Ex. 44 at 1127; Baird Dec. ¶ 11. 20 See, e.g., H.R. Conf. Rep. No. 92-1488 (1972), 1972 U.S.C.C.A.N. 4187, 4187-88 (NMFS may make regulations for taking of mammals, "subject to the protective devices...involving public review and participation"); see also, e.g., Half Moon Bay Fishermans' Mktg. Ass'n v. Carlucci, 857 F.2d 505, 508 (9th Cir. 1988) (citation omitted) (NEPA's public comment procedures "reflect the paramount Congressional desire to internalize opposing viewpoints into the decision making process to ensure that an agency is cognizant of all the environmental trade-offs that are implicit in a decision"). 21 See, e.g., 72 Fed. Reg. 46852-54, 46886; SEIS at 4-37 ("The SEIS was developed based on the analyses in [inter alia] the Applications for [LOAs].").
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data supplied by the Navy during the LOA process.21 Yet NMFS was selective in the LOA data it

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North Atlantic data showing substantially greater percentages of takes for many species, including endangered species, than the FEIS predicts for the one "worst case" site it modeled off the U.S. east coast, calling into question its assertion that "there are no new data that contradict any of the assumptions or conclusions made in [the FEIS] (Potential Impacts on Marine Mammals)." SEIS 4-39.22 Defendants obscure the fact that they did not submit this key information for public review by suggesting that the SEIS and the Navy's public LOA application contained summaries of three past LOA applications. See Opp. 23-24. However, NMFS may not cherry-pick which favorable data from LOA applications it will rely upon and make available for comment, and which unfavorable data it will not disclose. See Mt. Diablo Hosp. v. Shalala, 3 F.3d 1226, 1232 (9th Cir. 1993) ("[A]n action will not be upheld where the agency has intentionally omitted evidence from consideration."). It was arbitrary and capricious for NMFS to not disclose essential data for public comment, especially when this type of data is used to justify such broad findings. See Nat'l Black Media Coalition v. FCC, 791 F.2d 1016 (2nd Cir. 1986) ("[I]t is not consonant with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data or on data that, in critical degree is known only to the agency."). Second, because NMFS abdicates its responsibility to prescribe regulations that effect the least practicable adverse impact, it avoids disclosing the information used by the Navy in its pre-application "sensitivity/risk" analysis. As noted by Defendants, prior to LOA application, "the Navy considers marine mammal habitats, seasonal activities, and behavioral activities . . . to avoid planning LFA sonar operations in areas of known high marine animal densities." Opp. 12. The Navy's analysis includes geographic, spatial, temporal, and operational restrictions, SEIS at 4-40, none of the specifics of which are provided for public comment. Thus, the Navy is purportedly making determinations on how to lessen the impact on species and stocks, but has never disclosed any of the information behind these determinations. NMFS cannot avoid public review of key information and findings by parsing them off as part of the LOA process. Allowing such a coconut-shell game will encourage NMFS to shield In March 2007, the Navy gave NMFS an annual estimate of potential effects to endangered fin whale stocks for the Virginia Capes Operating Area (VACAPES) in the North Atlantic Ocean. Defs' Ex. 32 at 1-1. The estimated take of fin whale stock, for example, is between 3.49% and 6.07%. Yet, in the FOEIS/EIS, the annual estimate of potential effects to fin whale stocks in Onslow Bay, the only modeled site off the U.S. east coast, is 0.11%. Defs' Ex. 19.8 at 4.2 to 4.6. The Navy's fin whale estimate for VACAPES is as much as 55 times that for the adjacent Onslow Bay. NMFS made the low estimate for Onslow Bay, a representative site, available for public review, but not the drastically higher estimates for VACAPES.
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even more information, potentially damaging, from public scrutiny in direct contravention of Congress' intent.23 NMFS may be entitled to "fill gaps left by the MMPA in the implementation of the incidental take authorization process," Opp. 24, but not at the expense of an express statutory mandate. B. Plaintiffs Are Likely to Succeed on Their NEPA Claims. 1. The SEIS Fails to Consider All Reasonable Alternatives.

The Navy explains its failure to identify any low-risk areas for training, as required by Evans, by asserting that identifying any such areas anywhere is impracticable. Opp. 27. But the dispute on this point is not, as Defendants would paint it, a matter of conflicting expert opinion; the record shows rather that low-density areas have been identified for various species in various locations based on sighting data and habitat preferences, partly through research funded by the Navy. E.g., Exs. 90 (eastern tropical Pacific); 102 at 38712, 38736 (relative densities in Navy Hawaii Operating Area). Moreover, the Navy's claim of impracticability is belied by its own "methodology" of considering whether to move exercises from higher to--presumably--lower density areas during an annual process closed to the public and, indeed, to NMFS. Opp. 26. The fundamental question is whether NEPA permits the Navy to completely shift this core environmental analysis outside the NEPA process, violating its important mandate of "informed decision-making and informed public participation"; and the answer to that question is no. Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001); Save Our Ecosystems v. Clark, 747 F.2d 1240, 1247 (9th Cir. 1984); 279 F. Supp. 2d at 1163.24 Defendants would have the Court believe that uncertainties in planning make it impracticable to establish wider coastal exclusions anywhere in the world. Opp. 29. That broad assertion--contained nowhere in the SEIS--is at odds with five years of experience under a stipulated injunction that tailored different exclusion zones to different parts of the Navy's vast operating area, and even allowed for amendment. Exs. 3, 4. Nor did the Navy evaluate all reasonable alternatives for exclusion. See Gerber v. Norton, 294 F.3d 173, 181 (D.C. Cir. 2002) (internal quotation omitted) ("An agency may not turn the provision of notice into a bureaucratic game of hide and seek."); see also Conn. Light & Power Co. v. Nuclear Regulatory Comm'n, 673 F.2d 525, 530 (D.C. Cir. 1982) ("To allow an agency to play hunt the peanut with technical information, hid