Free Memorandum in Opposition - 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.
OPPOSITION TO DEFENDANTS' MOTION FOR LEAVE TO SUBMIT DECLARATION FOR IN CAMERA AND EX PARTE REVIEW No. C 07-4771-EDL

Civil Action No. 07-4771-EDL

OPPOSITION TO DEFENDANTS' MOTION FOR LEAVE TO SUBMIT CLASSIFIED DECLARATION FOR IN CAMERA AND EX PARTE REVIEW Judge: Hon. Elizabeth D. Laporte Ctrm: E Hearing Date: December 11, 2007 Time: 9:00 a.m.

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INTRODUCTION As they did in similar proceedings in 2002, Defendants have filed a motion ("Defendants' Motion") seeking in camera, ex parte review of evidence they claim will support their opposition to Plaintiffs' motion for preliminary injunction to prevent routine testing and training with the Navy's Surveillance Towed Array Sensor System Low Frequency Active Sonar ("LFA") system without sufficient mitigation. The order sought by Defendants should be denied or substantially modified to protect Plaintiffs' rights to meet Defendants' evidence. There is no need for Defendants' proposed in camera, ex parte filings. Defendants seek to submit declarations of Navy officials that will allegedly provide information regarding the need for LFA and potential threats to national security that can be addressed via the use of LFA. This information is of marginal relevance in this context because neither the effectiveness of LFA nor its use in time of war or heightened threat conditions is at issue in these preliminary injunction proceedings. Rather, Plaintiffs' preliminary injunction motion seeks to have the Navy continue to operate under the sensible limitations that the Court ordered in 2003, until Plaintiffs' claims are resolved. If, however, the Court decides to accept in camera, ex parte declarations, Plaintiffs request redacted versions of those declarations. In 2002, Defendants voluntarily provided Plaintiffs with redacted declarations. Defendants drafted the order memorializing that obligation barely a year after September 11, 2001, as the nation was sliding toward war with Iraq. It is difficult to imagine that Defendants' need now is great enough to justify providing Plaintiffs with less information than they did under those circumstances. Without being provided at least some limited insight into the evidence Defendants wish to present for ex parte review, Plaintiffs' ability to thoroughly brief all of the issues before the Court will be prejudiced. For this reason, if the Court does not deny Defendants' motion outright, Plaintiffs have provided an alternative proposed order requiring Defendants to provide to Plaintiffs, as they did previously, redacted versions of their proposed classified declarations.

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I.

ARGUMENT A. The Court Should Deny Defendants' Motion Because the Proposed Submissions Are Irrelevant to the Matter Now Before the Court.

Defendants argue that classified declarations, filed in camera and ex parte, are necessary for them to oppose Plaintiffs' preliminary injunction motion. Specifically, Defendants seek to submit declarations by Navy officials "that will provide detailed information regarding the effectiveness of the system against modern quiet submarines, the importance of the system to the Navy, and the potential threats" resulting from restrictions on deployment of LFA. (Defs.' Mot. 2.) The decision of whether to consider in camera, ex parte classified evidence--including the decision to reject such a request--is within a court's discretion. Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998). Indeed, a court should refuse irrelevant or immaterial matter. See 28 C.F.R. § 17.17(c)(1) (requiring a defendant to seek a court determination of "the relevance and materiality of the classified information in question" before allowing the information into evidence in civil proceedings). The purpose for which Defendants purport to offer the secret declarations is irrelevant in the current context, where neither Plaintiffs' claims nor their preliminary injunction motion address the effectiveness of LFA or deployment of LFA to meet the "potential threats" to which Defendants' Motion alludes. Indeed, as made crystal clear in the opening sentences of Plaintiffs' preliminary injunction motion, they do not seek a complete halt even in LFA testing and training activities: Plaintiffs seek an order ensuring that the reasonable and balanced mitigation measures that have governed the Navy's Surveillance Towed Array Sensor System ("SURTASS") Low Frequency Active Sonar ("LFA") for several years are maintained until Plaintiffs' claims in this action are resolved. (Pls.' Mot. for Prelim. Inj. at 1, filed Oct. 12, 2007 (emphasis added).) Any argument raised by Defendants concerning the Navy's need for LFA is simply irrelevant to any issue raised by Plaintiffs' preliminary injunction motion. Accordingly, the Court should deny Defendants' Motion.
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B.

At a Minimum, the Court Should Again Protect Plaintiffs' Ability to Meet Defendants' Evidence.

Defendants seek to submit declarations containing classified information purporting to demonstrate "the need for the SURTASS LFA." (Defs.' Mot. 12.) In 2002, the Court signed an order that was nearly identical to the proposed order submitted by Defendants with a similar motion. That order required Defendants to provide Plaintiffs with redacted versions of confidential declarations. (See Ex. A, Order Re: Classified Information, filed Oct. 29, 2002; see also Defs.' Mot. 3 n.2.) Now, however, Defendants seek to deny even this limited accommodation to Plaintiffs' rights of cross examination of evidence placed before the Court. Defendants do not justify their request to file secret declarations with evidence that they are unable to prepare redacted versions. Instead, the Court is provided with vague assertions that Defendants "cannot guarantee at this time that [the Navy] will be able to provide a redacted version." (Defs.' Mot. 3 n.2 (emphasis added).) This softshoe to accommodate bureaucratic inertia simply is not a sufficient basis to allow Defendants to deprive Plaintiffs of some limited avenue by which to get a sense of the evidence that Defendants seek to present to the Court. In 2002, although classified information was redacted, the limited access to a portion of Defendants' declaration provided Plaintiffs with the subject matter addressed and allowed Plaintiffs to understand the evidence presented in opposition to Plaintiffs' preliminary injunction motion. If denied even redacted versions of Defendants' evidence, Plaintiffs' ability to brief--or even fully understand--Defendants' opposition will be hampered. By contrast, Defendants' own papers tacitly acknowledge that they will not be prejudiced if required to provide redacted declarations. Defendants' Motion is itself very similar to the motion they filed last time. (See Ex. B, Defendants' Motion for Leave to Submit Classified Evidence In Camera and Ex Parte and Memorandum in Support, filed Sept. 13, 2002.) Further, because their prior motion states the same goals for the declarations as does the current Defendants' Motion, the contents of the new declarations will likely be similar to the contents of the declaration filed in 2002. Defendants have offered no rationale for excluding an obligation to provide the same
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quality of supporting evidence to Plaintiffs as that offered in 2002. Unless such a rationale is forthcoming, the Court should, at a minimum, compel Defendants to provide redacted declarations to Plaintiffs by signing Plaintiffs' alternative order. II. CONCLUSION Defendants intend to submit secret declarations containing information regarding the balance of harms analysis that this Court must conduct during its preliminary injunction investigation. Defendants allege that this information would "provide detailed information regarding the effectiveness of the system against modern quiet submarines, the importance of the system to the Navy, and the potential threats faced by the Navy if it is forced to restrict its employment of SURTASS LFA." (Defs.' Mot. 2.) Given its lack of relevance to the very limited relief sought by Plaintiffs in their motion for a preliminary injunction (i.e., a mere continuation, while this action is pending, of the Court's previously ordered mitigation measures, under which the Navy has now been operating for years), the Court should exercise its discretion to refuse the Navy's attempts to rely on unnecessary secret evidence. In the alternative, to minimize prejudice, and to maintain consistency with its prior determination on this issue, the Court should order Defendants to provide redacted versions of classified declarations to Plaintiffs. Dated: November 20, 2007 Respectfully Submitted, ROBERT L. FALK ROBIN S. STAFFORD SARAH B. SCHINDLER MORRISON & FOERSTER LLP JOEL R. REYNOLDS CARA HOROWITZ NATURAL RESOURCES DEFENSE COUNCIL, INC.

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/s/ Robin S. Stafford Robin S. Stafford 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; and JEAN-MICHEL COUSTEAU
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