Free Memorandum in Opposition - District Court of California - California

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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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Def. Opp. To Plf. Mot. For Prel. Inj., No. 07-4771

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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

) ) Civ. Action No. 07-4771-EDL ) Plaintiffs, ) ) DEFENDANTS' OPPOSITION TO v. ) PLAINTIFFS' MOTION FOR ) PRELIMINARY INJUNCTION CARLOS GUTIERREZ, SECRETARY ) OF THE UNITED STATES ) DEPARTMENT OF COMMERCE, et al. ) ) Defendants. ) ) Judge: Hon. Elizabeth D. Laporte ) Ctrm: E ) Hearing Date: January 16, 2008 ) Time: 2 p.m. ____________________________________)

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TABLE OF CONTENTS PAGE INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 LEGAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. II. III. Marine Mammal Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 National Environmental Policy Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Endangered Species Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. II. III. IV. The Navy's Need for Long Range Submarine Detection and SURTASS LFA Sonar 3 The 2002 Regulatory Process and Related Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 4 The 2007 Regulatory Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Mitigation and Monitoring Measures Imposed by the Final Rule and Incorporated into the Navy's Record of Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. II. III. STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . 7 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE MERITS 9 A. NMFS Has Complied with the Marine Mammal Protection Act . . . . . . . . . . 9 1. NMFS Has Prescribed "Other Means of Effecting the Least Practicable Adverse Impact," and They are Reasonable . . . . . . . . . . . . . . . . . . . 10 a. NMFS Has Acted Reasonably in the Designation of OBIAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 NMFS's Imposition of a 12nm Coastal Exclusion Zone Is Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 NMFS's Monitoring Requirements are Reasonable . . . . . . . 16

NMFS Has Ensured that Impacts of LFA Sonar Will Be Negligible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Lethal Take of Marine Mammals is Not A Reasonably Foreseeable Impact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 NMFS Provided Full Notice and Opportunity for Public Comment on the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

The Navy Fully Complied with NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 -ii-

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1.

The SEIS Thoroughly Analyzes All Reasonable Alternatives . . . . . 25 a. The Navy adequately considered training in areas of reduced risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 b. c. The Navy adequately considered extended coastal exclusion zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 The Navy adequately considered extending shut-down protocols to fish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

2. 3.

The Navy's Consideration of Mitigation Measures Complies With NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 The SEIS Adequately Considers All Reasonably Foreseeable Individual and Cumulative Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

NMFS Has Complied with the Endangered Species Act . . . . . . . . . . . . . . . 35 1. The Incidental Take Statements Specify the Amount or Extent of Take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

PLAINTIFFS CANNOT SHOW IRREPARABLE INJURY . . . . . . . . . . . . . . . . . . . . . . . . 37 THE BALANCE OF HARDSHIPS AND THE PUBLIC INTEREST FAVOR THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

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TABLE OF AUTHORITIES PAGE

Amoco Produc. Co. v. Village of Gambell, 480 U.S. 531, 544-545 (1987) . . . . . . . . . . . . . . . . . . . 37 Arcamuzi v. Cont'l Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . 8 Arizona Cattle Growers Ass'n v. FWS, 273 F.3d 1229, 1249-50 (9th Cir. 2001) . . . . . . . . . . . 36 , 37 Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1077 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 16 California v. Block, 690 F.2d 753, 761 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Central Arizona Water Conservation Dist. v. EPA, 990 F.2d 1531, 1539 (9th Cir. 1993) . . . . . . . . 16 Chevron U.S.A., Inc. v. Nat. Res. Defense Council, 467 U.S. 837, 843-44 (1984) . . . . . . . . . . 10, 24 City of Sausalito v. O'Neill, 386 F.3d 1186, 1205 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp.2d 1115, 1160-61 (N.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Dep't of Navy v. Egan, 484 U.S. 518, 529 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Dep't of Transp. v. Public Citizen, 541 U.S. 752, 764-765 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . 32 FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 145 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Friends of Endangered Species v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985) . . . . . . . . . . . . . . . . . 27 Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 7, 39 Gilligan v. Morgan, 413 U.S. 1, 10 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Goldie's Bookstore, Inc. v. Superior Court of California, 739 F.2d 466, 472 (9th Cir. 1984) . . . . . 37 Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442-442 (1974) . . . . . . . . . . . . . . . . . . . . . . 7 Greenpeace Action v. Franklin, 14 F.3d 1324, 1334 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . 14 Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33 Inland Empire Public Lands Council v. U.S. Forest Service, 88 F.3d 754, 764 (9th Cir. 1996) . . . . 28 Inland Empire Public Lands v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993) . . . . . . . . . . . . . . . . 19, 20 Kokechik Fisherman's Ass'n v. Sec'y of Commerce, 839 F.2d 795 (D.C. Cir. 1988) . . . . . . . . . . . . 23 Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 524 (9th Cir. 1994) . . . . . . . . . . 25, 31 Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 27 Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 8
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Nat. Res. Defense Council v. U.S. Forest Service, 421 F.3d 797 (9th Cir. 2005) . . . . . . . . . . . . . . . 26 Nat. Res. Defense Council v. Winter, 2007 WL 2481465 at *2 (9th Cir. 2007) . . . . . . . . . . . . . . 8, 39 National Cable and Telecommunications Ass'n v. Brand X Internet Services, 125 S. Ct. 2688, 2700-2701 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 National Parks Conservation Ass'n v. U.S. Dep't of Transp., 222 F.3d 677, 681 n.4 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 National Wildlife Federation v. Burlington Northern Railroad, Inc., 23 F.3d 1508, 1512 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 39 NLRB v. Food Store Employees Union, 417 U.S. 1, 9 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Norton v. Southern Utah Wilderness Society, 542 U.S. 55, 64 (2004) . . . . . . . . . . . . . . . . . . . . . . . 11 Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1036-37 (9th Cir. 2007) . . . . . . . . . . . . 36, 37 Pyramid Lake Paiute Tribe v. United States Dep't of the Navy, 898 F.2d 1410, 1414 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 22 , 24 Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . 37 Seattle Audubon Society v. Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . 25 Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Stryker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 (1980) . . . . . . . . . . . . . . 2, 31, 32 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-554 (1978) . . . . . . . . . . . . . . 13 Water Keeper Alliance v. Dep't of Defense, 271 F.3d 21, 35 (1st Cir. 2001) . . . . . . . . . . . . . . . . . 40 Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d 457, 459 (9th Cir. 1994) . . . . . . . . . . . . . 8 Westlands Water District v. U.S. Dep't of the Interior, 376 F.3d 853, 868 (9th Cir. 2004) . . . . . . . 29 STATUTES 5 U.S.C. § 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 16 U.S.C. § 1362(18)(B)-(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2 16 U.S.C. § 1371(a)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 16 U.S.C. § 1371(a)(5)(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

16 U.S.C. § 1536(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 37 16 U.S.C. §1536(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
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42 U.S.C. § 4321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 4332(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25 FEDERAL REGULATIONS 40 C.F.R. § 1502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 40 C.F.R. § 1502.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 40 C.F.R. § 1502.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29 40 C.F.R. § 1502.14(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 40 C.F.R. § 1502.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 40 C.F.R. § 1502.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 50 C.F.R. § 216.103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 50 C.F.R. § 216.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 50 C.F.R. § 216.106(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 50 C.F.R. § 216.184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22 50 C.F.R. § 216.184(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 50 C.F.R. § 216.184(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 50 C.F.R § 216.184(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 , 13 50 C.F.R. § 216.184(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 , 14 50 C.F.R. § 216.185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 50 C.F.R. § 216.191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 50 C.F.R. § 402.13(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 50 C.F.R. § 402.14(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 50 C.F.R. § 402.14(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 50 C.F.R § 402.14(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 50 C.F.R. § 402.14(l)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APA BiOp CEZ dB EIS ESA HF/M3 ITS LFA LOA MFA MMPA NDAA NDE NEPA NMFS OBIA RL ROD SEIS SURTASS

TABLE OF ACRONYMS
Administrative Procedure Act Biological Opinion Coastal Exclusion Zone Decibel Environmental Impact Statement Endangered Species Act High Frequency Marine Mammal Monitoring Sonar Incidental Take Statement Low Frequency Active Letter of Authorization Mid Frequency Active Marine Mammal Protection Act National Defense Authorization Act National Defense Exemption National Environmental Policy Act National Marine Fisheries Service Offshore Biologically Important Area Received Level Record of Decision Supplemental Environmental Impact Statement Surveillance Towed Array Sensor System

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INTRODUCTION Plaintiffs have recycled old arguments from their first lawsuit, Natural Resources Defense Council,

3 Inc. et al., v. Donald Evans, No. C-02-3805-EDL (N.D. Cal.) (NRDC I), and repackaged them as new 4 claims. Plaintiffs' approach, however, ignores the new environmental documents before the Court now and the critical changes that have taken place in the law and in the state of the science over the five-year 5 period between NRDC I and the current challenge. In short, the legal and factual landscapes have 6 changed, even if Plaintiffs' distaste for LFA sonar has not. Review of the present action and record 7 demonstrates that the agencies have fully complied with all of the relevant statutes and thus, Plaintiffs are 8 not likely to prevail on the merits of any of their claims. Plaintiffs also fail to meet their heavy burden 9 of demonstrating irreparable harm. In contrast, Defendants provide compelling evidence of harm to the 10 public interest if the Court were to enjoin the operation of SURTASS LFA for testing, training, and 11 military operations in littoral areas. The Court should, therefore, deny Plaintiffs' Motion. 12 LEGAL BACKGROUND 13 I. Marine Mammal Protection Act 14 Congress amended the Marine Mammal Protection Act (MMPA) in 2003 as it applies to "military 15 readiness activities" in several respects. National Defense Authorization Act for Fiscal Year 2004, Pub. 16 L. 108-136, 117 Stat. 1392 (Nov. 24, 2003) (NDAA). First, Congress amended the sections governing 17 the issuance of incidental take authorizations to eliminate the requirements that the permitted activity take 18 place "within a specified geographical region," and that it involve the taking of only "small numbers" of 19 marine mammals. 16 U.S.C. §§ 1371(a)(5)(F). Congress also specified that NMFS must take into account 20 "consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the 21 military readiness activity" in determining which mitigation measures to prescribe for the "least 22 practicable adverse impact" on affected species and stocks. 16 U.S.C. §§ 1371(a)(5)(A)(ii). Finally, 23 Congress amended the definitions of Level A and Level B harassment. For military readiness activities, 24 harassment now means: 25 (i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild or; [Level A] 26 (ii) 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, 27 surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered. [Level B] 28
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1 16 U.S.C. § 1362(18)(B)-(D) (emphasis added). 2 The use of SURTASS LFA sonar during training, testing, and military operations meets the

3 definition of a "military readiness activity," as is made clear by the legislative history to the NDAA 4 amendments passed in response to the NRDC I lawsuit. See Ex. 74. According to the Conference Report, the NDAA amendments cured deficiencies which were highlighted by NRDC I and other lawsuits, in the 5 take authorization process as it applied to military readiness activities. Id. at *1447. In particular, 6 Congress recognized that military readiness activities must frequently encompass large areas of the ocean 7 and that artificially limiting Navy exercises to a "specified geographical region" provided grist for 8 litigation, but little "demonstrable protection to marine mammals." Id. 9 II. National Environmental Policy Act 10 The purpose of NEPA, 42 U.S.C. §§ 4321, et seq., is to focus the attention of the federal 11 government and the public on a proposed major federal action so that its consequences can be studied 12 before the action is implemented. Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 371 (1989). NEPA 13 requires that, for all "major Federal actions significantly affecting the quality of the human environment," 14 an agency must prepare a comprehensive environmental impact statement (EIS). 42 U.S.C. § 4332(C). 15 NEPA also requires that an agency prepare a supplemental EIS (SEIS) when there "are significant new 16 circumstances or information relevant to environmental concerns and bearing on the proposed action or 17 its impacts." 40 C.F.R. 1502.9(c)(1)(ii). The regulations implementing NEPA provide guidance as to the 18 nature and content of an EIS or SEIS. See 40 C.F.R. Part 1502, § 1502.9(c)(4). The regulations clarify 19 that agencies must discuss impacts only in proportion to their significance, and must provide "only enough 20 discussion to show why more study is not warranted." 40 C.F.R. § 1502.2. 21 In reviewing the sufficiency of an EIS a court is charged only with ensuring that the agency has 22 presented a "reasonably thorough discussion of the significant aspects of the probable environmental 23 consequences." California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). Thus, "`[t]he reviewing court may 24 not `fly speck' an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies.'" Id. 25 at 1184 (internal citations omitted). In addition, a reviewing court may not force an agency to elevate 26 environmental concerns over other appropriate considerations. Stryker's Bay Neighborhood Council v. 27 Karlen, 444 U.S. 223, 227 (1980). "Other statutes may impose substantive environmental obligations on 28 federal agencies, but NEPA merely prohibits uninformed ­ rather than unwise ­ agency action." Methow
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1 Valley, 490 U.S. at 350. 2 III. 3 Endangered Species Act Section 7(a)(2) of the Endangered Species Act (ESA) requires each Federal agency, in

4 consultation with the Secretary of Commerce, to ensure that "any action authorized, funded, or carried out by [that] agency" is not "likely to jeopardize the continued existence of any endangered species or 5 threatened species or result in the destruction or adverse modification" of critical habitat. 16 U.S.C. § 6 1536(a)(2). If the agency determines that its proposed action is "likely to adversely affect" listed species 7 or designated critical habitat, it must engage in formal consultation with NMFS. 50 C.F.R. §§ 402.13(a), 8 402.14(a)­(b). Formal consultation typically begins with a written request by the action agency, 50 C.F.R. 9 § 402.14(c), and concludes with the issuance of a biological opinion (BiOp) by the consulting agency. 10 50 C.F.R. § 402.14(l)(1). The BiOp assesses the likelihood of jeopardy to the species and whether the 11 proposed action will result in destruction or adverse modification of critical habitat. See 50 C.F.R. §§ 12 402.14(g), (h). If the proposed action is not likely to jeopardize the species, but will result in incidental 13 "take" of members of the listed species, the consulting agency provides an "incidental take statement" 14 (ITS) with the BiOp. 16 U.S.C. § 1536(b)(4); 50 C.F.R § 402.14(i). The ITS must specify the impact of 15 the incidental taking to the species and those "reasonable and prudent measures" that the consulting 16 agency considers "necessary or appropriate" to minimize the impact of the incidental take and the terms 17 and conditions for implementing them. 16 U.S.C. § 1536(b)(4)(i)-(iv); 50 C.F.R § 402.14(I). Take in 18 compliance with the ITS is exempt from ESA liability. 16 U.S.C. §1536(o). 19 FACTUAL AND PROCEDURAL BACKGROUND 20 I. The Navy's Need for Long Range Submarine Detection and SURTASS LFA Sonar 21 The Navy developed the Surveillance Towed Array Sensor System Low Frequency Active 22 (SURTASS LFA) sonar system to improve its ability to detect quiet foreign submarines. SEIS at 1-6. The 23 detection effectiveness of current submarine tracking technology in littoral areas, where future naval 24 conflicts are most likely to occur, is significantly degraded by frequently high underwater background 25 noise and difficult underwater acoustic propagation conditions. SEIS at 1-8. The world's navies are 26 planning for the use of quiet submarines to patrol littorals and to blockade strategic choke points and other 27 constricted waters, where U.S. aircraft carriers, amphibious task forces, and their supporting ships and 28 crew must operate. SEIS at 1-2, 1-6. As a result, the Navy's detection range has become so short that
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1 U.S. forces may have only minutes to respond before hostile submarines can get close enough to U.S. 2 assets to use their weapons against a high value asset such as an aircraft carrier or an amphibious assault 3 ship. SEIS at 1-4. To regain the reaction time needed to respond to the increased submarine threat and 4 meet its long-range detection needs, the Navy investigated the use of a broad spectrum of acoustic and non-acoustic technologies. Low frequency sonar was the only system capable of providing reliable long 5 range detection. See EIS at 1-8 to 1-11, 2-23. 6 II. The 2002 Regulatory Process and Related Litigation 7 As the Court is aware, the agencies undertook significant analysis of LFA sonar under the ESA, 8 MMPA, and NEPA resulting in a Final NEPA EIS and accompanying Record of Decision (ROD), an 9 MMPA Final Rule (2002 Rule), an MMPA Letter of Authorization (LOA), and an accompanying ESA 10 programmatic BiOP and supplemental LOA BiOp, in the years leading up to Plaintiffs' first lawsuit. 11 Plaintiffs challenged each of these actions in 2002, and on August 26, 2003, the Court issued an 12 Opinion and Order granting the parties' cross-motions for summary judgment in part. NRDC I, 279 F. 13 Supp.2d 1129 (N.D. Cal. 2003). Of relevance here, the Court held that the Navy violated NEPA because 14 the EIS did not disclose and analyze studies concerning harm to fish. The Court also held that the EIS 15 should have considered alternatives that would have extended shutdown procedures to fish and 16 concentrated training in areas that present a reduced risk to marine life. Id. at 1164-71. The Court held 17 that NMFS erred under the MMPA by failing to (1) extend the coastal exclusion zone for all areas where 18 close- to-shore training is unnecessary; (2) use aerial surveys or observational vessels for all close-to19 shore operations; and (3) designate additional off-limit areas or seasons and Offshore Biologically 20 Important Areas (OBIA). Id. at 1159-64. Finally, the Court held that NMFS ran afoul of the ESA by not 21 issuing an ITS with its programmatic BiOp, and by failing to provide a numerical estimate of the amount 22 or extent of incidental take (or an appropriate surrogate) in the ITS for the supplemental BiOp. Id. at 23 1181-88. The Court, however, held that a complete injunction banning use of the SURTASS LFA sonar 24 system was not warranted, and instead issued a tailored injunction based upon a stipulation devised by the 25 parties during court-ordered mediation. Id. at 1191-92. That injunction, which expired on August 15, 26 2007, enlarged coastal exclusion zones beyond what was required by the 2002 Final Rule. The injunction 27 also specified that the Navy need not conduct pre-operational small boat or aerial surveys. 28
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1 III. 2

The 2007 Regulatory Process In April 2003, the Deputy Assistant Secretary of the Navy for the Environment directed the Navy

3 to prepare an SEIS to address concerns that this Court identified in NRDC I. The SEIS also addressed 4 legislative changes to the MMPA and information necessary to apply for a new five-year rule under the MMPA as well. See SEIS at 1-16; ROD at 3. In November 2005, the Navy published a Notice of 5 Availability of the Navy's Draft SEIS in the Federal Register (70 Fed. Reg. 68,443). During the 92-day 6 public comment period that followed, public hearings were conducted in Washington, D.C., San Diego, 7 California, and Honolulu, Hawaii. The Final SEIS was published in April 2007, and the ROD was signed 8 on August 15, 2007 (72 Fed. Reg. 48269). See ROD at 54, 77. The SEIS incorporates the contents of the 9 EIS by reference (except as noted or modified), and provides additional information regarding the 10 environment that could potentially be affected by employment of LFA sonar. The SEIS also includes 11 updated literature reviews and determinations of data gaps, especially for fish, sea turtles, and marine 12 mammals; an impacts analysis based on fish controlled exposure experiments; an updated low frequency 13 sound impact analysis; and new alternatives and cumulative impacts analyses. SEIS at P-3, P-4, 1-16. 14 In May 2006, the Navy applied to NMFS for a 5-year authorization under the MMPA, 16 U.S.C. 15 § 1371(a)(5)(A), for the take of marine mammals by Level A and Level B harassment incidental to testing, 16 training and military operations involving the use of SURTASS LFA sonar. Ex. 14.1.1/ In September 17 2006, NMFS published a Notice of Receipt of Application and invited public comments on the application 18 over a 30-day period. 71 Fed. Reg. 56,965 (Sept. 28, 2006). NMFS published a Proposed Rule on July 19 9, 2007, and additional comments on the rule were received over the following 15 days. 72 Fed. Reg. 20 37,404 (July 9, 2007). The Final Rule, which sets forth the permissible methods of take and other means 21 of effecting the least practicable adverse impact on marine mammals, became effective on August 16, 22 2007. 72 Fed. Reg. 46,846 (August 15, 2007). In the Final Rule NMFS determined that employment of 23 SURTASS LFA as described in the ROD will have negligible impacts on the affected marine mammal 24 species and stocks. Id. at 46,889-90. NMFS issued LOAs for the SURTASS LFA sonar systems aboard 25 the R/V Cory Chouest and the USNS IMPECCABLE (TAGOS-23) on August 15, 2007. Exs. 2, 3. 26 (LOAs). Both LOAs are effective from August 16, 2007 until August 15, 2008. 27 1 / Citations to exhibits to the Declaration of Guillermo A. Montero are referenced as "Ex. ___." 28 Citations to exhibits to the Declaration of Sarah Schindler are referenced as "Plaintiffs' Ex. ___."
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1

The Navy also consulted with NMFS under ESA Section 7 concerning the possible incidental take

2 of listed species as a result of using LFA sonar. NMFS consulted with itself on the rulemaking and 3 issuance of two LOAs. In a BiOp dated August 14, 2007, NMFS found that the Navy's use of SURTASS 4 LFA sonar in accordance with NMFS's regulations and LOAs may adversely affect, but is not likely to jeopardize, the continued existence of any endangered or threatened species. Exs. 5-6. The BiOp also 5 concluded that the use of LFA sonar "may affect, but is not likely to adversely affect" any designated 6 critical habitat. NMFS made the same findings in a supplemental BiOp for the LOAs for the R/V Cory 7 Chouest and USNS IMPECCABLE (T-AGOS 23). Ex. 7. Both the BiOps contain ITSs which specify the 8 "amount or extent" of the anticipated take. Ex. 6 at 2-3; Ex. 7 at 67-68. 9 IV. Mitigation and Monitoring Measures Imposed by the Final Rule and Incorporated into the 10 Navy's Record of Decision 11 As part of the MMPA and NEPA processes, the Navy and NMFS focused on identifying

12 appropriate mitigation and monitoring measures to minimize potential impact to marine mammals, while 13 ensuring that LFA sonar missions would remain effective. Among other things, to avoid the potential for 14 injury to marine mammals, the Navy proposed a detection zone (called the "LFA mitigation zone") 15 surrounding the vessel and extending approximately 1 km, to encompass the area ensonified up to and 16 including 180 dB, the point above which potentially serious problems in the hearing of marine mammals 17 could start to occur. SEIS at 1-28. If a marine mammal were detected within the 180 dB LFA mitigation 18 zone, Navy protocol required immediate suspension of sonar transmission, and permitted the resumption 19 of transmissions only fifteen minutes after the animal had left the 180 dB sound field. NMFS, however, 20 did not accept this proposal in its entirety and instead required augmentation of the 180 dB safety zone 21 with an additional 1 km buffer zone (for a total of 2 km) to ensure to the greatest extent practicable that 22 marine mammals are not subjected to potential injury. 72 Fed. Reg. at 46887. At 2 km from the vessel, 23 possible received levels of sonar diminish dramatically on a logarithmic scale to 174 dB, well below the 24 lowest levels for physical trauma. Id. NMFS also required the Navy to use three overlapping methods 25 of monitoring the area surrounding the SURTASS LFA sonar array: visual monitoring for marine 26 mammals and sea turtles from the SURTASS LFA vessel during daylight hours, use of the passive 27 acoustic SURTASS array to listen for sounds generated by marine mammals as an indicator of their 28 presence, and use of high frequency active acoustic (High Frequency Marine Mammal Monitoring
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1 [HF/M3] sonar) to detect, locate, and track marine mammals that might be affected by low frequency 2 transmissions near the vessel and the sound field produced by the sonar source array. Id. at 46887-88. 3 In addition, NMFS placed further protective geographical boundaries on the use of the SURTASS

4 LFA system. Sonar operations must be conducted to ensure that the sound field produced does not exceed 180 dB at a distance of 12 nm from any coastline or within 1km seaward of any designated OBIA for 5 marine mammals during the biologically important season for that particular area. In addition, geographic 6 restrictions have been imposed to ensure that the sound field does not exceed 145 dB in the vicinity of 7 known recreational and commercial dive sites. Id. at 46,887. The Final Rule also requires that data be 8 collected during routine operations of LFA sonar, including data from visual and acoustic monitoring, 9 ocean environmental measurements, and technical operational inputs; and the submission of quarterly 10 classified reports (which include all active-mode missions) and an annual report no later than 45 days after 11 the expiration date of the LOA. Id. at 46,892. This unclassified summary of the quarterly reports includes 12 the Navy's assessment of whether takes of marine mammals have occurred within the mitigation and 13 buffer zones and estimates of the percentage of marine mammal stocks effected by sonar operations. 14 NMFS has also required the Navy to submit a Final Comprehensive Report. Id. at 46889. 15 ARGUMENT 16 I. STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF 17 A preliminary injunction is an extraordinary remedy the entitlement to which the plaintiff bears 18 the burden of proving by clear and convincing evidence. See Granny Goose Foods, Inc. v. Teamsters, 415 19 U.S. 423, 442-442 (1974). "An injunction should issue only where the intervention of a court of equity 20 `is essential in order effectually to protect property rights against injuries otherwise irremediable.'" 21 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). There are two interrelated tests: "In order to 22 obtain a preliminary injunction, a party must demonstrate either (1) a likelihood of success on the merits 23 and a possibility of irreparable injury, or (2) the existence of serious questions on the merits and a balance 24 of hardships tipping in its favor." Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992) 25 (citation omitted). "These two tests are not separate but represent a sliding scale in which the required 26 probability of success on the merits decreases as the degree of harm increases." Westlands Water Dist. 27 v. Nat. Res. Def. Council, 43 F.3d 457, 459 (9th Cir. 1994). Additionally, if the public interest is 28
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1 involved, a court must determine whether the balance of public interests supports the issuance or denial
th 2 of an injunction. Nat. Res. Defense Council v. Winter, __ F.3d __, 2007 WL 2481465 at *2 (9 Cir.

3 2007). The relative hardship to the parties is the critical element in deciding at which point along the 4 continuum a stay is justified. Benda v. Grand Lodge of Int'l Ass'n of Machinists, etc., 584 F.2d 308, 314315 (9th Cir. 1978). Under any formulation of the test, the plaintiff must demonstrate a significant threat 5 of irreparable injury. Arcamuzi v. Cont'l Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987). 6 II. STANDARD OF REVIEW 7 Judicial review of administrative actions, including those involving the ESA, MMPA, and NEPA, 8 is governed by section 706 of the APA, 5 U.S.C. § 706. City of Sausalito v. O'Neill, 386 F.3d 1186, 1205 9 (9th Cir. 2004). Under the APA, a reviewing court must satisfy itself that the agency decisions are not 10 "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at 1206. Thus, 11 "the reviewing court must uphold the administrative action if the agency `considered the relevant factors 12 and articulated a rational connection between the facts found and the choice made.'" Id. 13 Review under the arbitrary and capricious standard is to be "searching and careful" but "narrow," 14 and a court is not to substitute its judgment for that of the agency. Marsh v. Oregon Nat. Res. Council, 490 15 U.S. 360, 378 (1989); see also Sierra Club v. Marsh, 976 F.2d at 769 ("This standard of review is highly 16 deferential; the court must presume the agency action to be valid."). Deference is especially appropriate 17 when courts review the agency's technical analysis and judgments involving the evaluation of complex 18 scientific data within the agency's technical expertise. Marsh, 490 U.S. at 377; Mt. Graham Red Squirrel 19 v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993). 20 III. PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE MERITS 21 A. NMFS Has Complied with the Marine Mammal Protection Act 22 In relevant part, the MMPA directs the Secretary of Commerce to allow, upon request, the taking 23 of marine mammals incidental to a military readiness activity, for a period of up to five years, if the 24 Secretary finds that the total taking will have a negligible impact on the affected species or stocks. 16 25 U.S.C. § 1371(a)(5)(A), (F). NMFS's regulations define a "negligible impact" as "an impact resulting 26 from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely 27 affect the species or stock through effects on annual rates of recruitment or survival." 50 C.F.R. § 28
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1 216.103. The Secretary must also issue regulations for permissible methods of take and other means of 2 a effecting the "least practicable adverse impact" on the species or stock ­ taking into account personnel 3 safety, practicability, and impact on effectiveness of the military readiness activity ­ and requirements 4 pertaining to the monitoring and reporting of take. 16 U.S.C. § 1371(a)(5)(A)(i)(II), (a)(5)(A)(ii). NMFS has certainly met these requirements. NMFS reasonably concluded, on the strength of the 5 best science available, that takes incidental to the use of SURTASS LFA sonar for training, testing, and 6 military operations will have no more than a negligible impact on marine mammal species and stocks. 7 NMFS prescribed mitigation measures that honor Congress's intent by effecting the least practicable 8 adverse impact to marine mammals, without unduly burdening the effectiveness of LFA sonar missions. 9 NMFS also prescribed reasonable monitoring and reporting requirements. Thus, Plaintiffs are unlikely 10 to succeed on the merits of their MMPA claims and are not entitled to preliminary injunctive relief. 11 Before addressing Plaintiffs' arguments in detail, one global point warrants a response. While 12 Plaintiffs would like this Court to treat its prior findings in NRDC I as binding precedent that foreclosed 13 NMFS's ability to make independent regulatory decisions on a new record, this argument finds no support 14 in the law. See NLRB v. Food Store Employees Union, 417 U.S. 1, 9 (1974) (recognizing that an agency 15 may reach the same result upon remand so long as it applies the correct legal standards). The Court found 16 NMFS's decisions on mitigation and monitoring in NRDC I arbitrary because they were not adequately 17 supported by the administrative record in that case. The fact that the administrative record for the earlier 18 rulemaking failed to explain why certain mitigation measures were rejected does not alter the standard of 19 review for this case. If the administrative record for the new rulemaking shows that NMFS considered 20 the relevant factors and articulated a rational connection between the facts found and the choice made ­ 21 which it does ­ the new rulemaking must be upheld. Pyramid Lake Paiute Tribe v. United States Dep't 22 of the Navy, 898 F.2d 1410, 1414 (9th Cir. 1990). Moreover, even if the Court's prior ruling on the 23 adequacy of mitigation was not attributable solely to gaps in the administrative record, but also to the 24 Court's interpretation of the statute, the law is clear that the decision in NRDC I could not preclude NMFS 25 from interpreting the term "least practicable adverse impact," as amended, in the context of the new 26 rulemaking. See National Cable and Telecommunications Ass'n v. Brand X Internet Services, 125 S. Ct. 27 2688, 2700-2701 (2005) (reaffirming Chevron standard of deference and holding that not even the stare 28
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1 decisis effect of Ninth Circuit precedent could foreclose an agency from interpreting an ambiguous 2 statute). That interpretation is entitled to deference as long as it is reasonable. Chevron U.S.A., Inc. v. 3 Nat. Res. Defense Council, 467 U.S. 837, 843-44 (1984). 4 5 1. NMFS Has Prescribed "Other Means of Effecting the Least Practicable Adverse Impact," and They are Reasonable.

Plaintiffs' "specified geographical region" claims from NRDC I reappear in this lawsuit in the

6 guise of "mitigation measures" claims. Plaintiffs complained in NRDC I that by imposing no limit on the 7 number of provinces that could be authorized in an LOA, the Final Rule permitted "world-wide" LFA 8 sonar deployment, which conflicted with the MMPA's requirement that incidental take authorizations be 9 limited to a "specified geographical region." NRDC II, at 1145-1146. Now, Plaintiffs argue that NMFS's 10 Final Rule fails to impose appropriate "geographic restrictions" on "the Navy's vast deployment area, an 11 area that encompasses most of the world's species and populations of marine mammals." Pl Br. at 10 and 12 2 (criticizing the Final Rule for authorizing "near-worldwide" and "near-global" deployment). This claim 13 fails for several reasons. First, even though the MMPA, as amended, would not preclude it, the Final 14 Rule does not authorize world-wide deployment, as Plaintiffs contend. See Response to Comment (RTC) 15 1, 72 Fed. Reg. at 46,849. Where the Navy operates is dictated by the projected national security needs 16 for that year, and the Navy seeks take authorization based on those needs. The Final Rule governs but 17 does not authorize "take." See 72 Fed. Reg. at 46846; 50 C.F.R. § 216.104. Rather, take is authorized 18 through LOAs issued by NMFS, which the Navy must apply for on an annual basis. Id. Second, the 19 underlying theme of Plaintiffs' "geographic restrictions" and "coastal exclusion zone" arguments ­ which 20 urge the exclusion of sonar from hundreds of areas around the world ­ is that use of LFA sonar should be 21 severely restricted to limited unproductive portions of the ocean. In addition to being impracticable for 22 military readiness and scientifically unsound, as explained below, such a restriction ­ taken to its extreme 23 ­ would amount to limiting LFA sonar activities to a "specified geographical region," and is unacceptable 24 for the same reasons that Congress identified when it amended the MMPA to eliminate that requirement 25 for military readiness activities. See Ex. 74. 26 27 a. NMFS Has Acted Reasonably in the Designation of OBIAs.

Contrary to what Plaintiffs might think, neither the MMPA nor its implementing regulations

28 require the designation of OBIAs as a part of the rulemaking process at issue here. Rather, the MMPA
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1 simply requires that the Secretary prescribe methods and means of effecting the "least practicable adverse 2 impact" on species or stock and their habitat. 16 U.S.C. § 1371(a)(5)(A)(i)(II). So long as this standard 3 is met, this Court cannot find that NMFS acted arbitrarily by deciding not to designate particula areas as 4 OBIAs. See Norton v. Southern Utah Wilderness Society, 542 U.S. 55, 64 (2004) (holding that a claim challenging agency action unlawfully withheld "can proceed only where a plaintiff asserts that an agency 5 failed to take a discrete agency action that it is required to take") (emphasis in original); see also id. 6 (rejecting challenge to agency's failure to act because the statute, though "mandatory as to the objective 7 to be achieved," left the agency with a great deal of discretion in deciding how to achieve it). 8 In this case, NMFS reasonably determined that it would not be "practicable" to designate every 9 productive area of the ocean as an OBIA. The Navy needs flexibility to respond to global threats as they 10 develop and, therefore, cannot project with certainty every threat that the Navy might need to train for 11 over an entire 5-year period. 72 Fed. Reg. at 46,847 ("Because of uncertainties in the world's political 12 climate, a detailed account of future operating locations and conditions cannot be predicted."). Placing 13 huge swaths of ocean off-limits to LFA sonar in the Final Rule, as Plaintiffs propose, could deny the Navy 14 access to parts of the world that unexpectedly become critical for LFA training in the future and, therefore, 15 would not be "practicable" within the meaning of Section 1371(a)(5)(A)(ii). See RTC MIC11, 67 Fed. 16 Reg. at 46749 ("[O]perational restrictions in these broad areas could seriously impact the Navy's ability 17 to carry out its mission if these areas were established as OBIAs."). 18 OBIA designation, however, is not the only means for minimizing adverse impacts to marine 19 mammals. NMFS requires the Navy to monitor (by visual, passive acoustic, and active acoustic means) 20 a 1 km buffer zone around the 180 dB isopleth (which extends to 1km from the sonar source), and delay 21 or suspend sonar transmissions when a marine mammal or sea turtle enters the 2km radius around the 22 vessel. 50 C.F.R. § 216.184(b). This highly effective three-part monitoring regime is expected to reduce 23 the risk of marine mammal injury or death to virtually zero, since no marine mammals will be exposed 24 to received sound levels above 180 dB, the threshold for injury. By extending the buffer zone out to 2km 25 from the sonar source, where sound levels are approximately 174 dB, NMFS has also minimized (to the 26 extent practicable given the limits of monitoring technology) Level B takes at the upper end of the risk 27 continuum, where the highest percentage of marine mammals exposed to the sonar signal are likely to be 28
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1 behaviorally harassed. The Navy is required to conduct this three-part monitoring for 30 minutes prior 2 to the first sonar transmission and for at least 15 minutes after the last transmission. 50 C.F.R. §216.185 3 (a),(b). The Final Rule also requires that the Navy use the 12 percent per stock cap to guide its mission 4 planning and annual LOA applications. This 12 percent cap on the annual take of marine mammal stocks ensures that impacts remain negligible. 72 Fed. Reg. at 46886. The 12 percent cap is a serious limit on 5 sonar use and a driving force for the Navy's site-specific mission planning. See SEIS Subchapter 4.4; 6 Frankel Decl. ¶32. During the annual LOA application process, the Navy considers marine mammal 7 habitats, seasonal activities, and behavioral activities when determining potential mission areas to avoid 8 planning LFA sonar operations in areas of known high marine animal densities. RTC 88, 72 Fed. Reg. 9 at 46877. Once the cap is reached for a particular stock, the Navy must forego hours of sonar use or plan 10 the remainder of its missions to avoid that stock. Frankel Decl. ¶32. This flexible approach minimizes 11 adverse impacts to the extent practicable while also meeting the Navy's operational requirements. By 12 contrast, OBIA designation is a blunt tool for a nuanced problem, and thus it is appropriately reserved for 13 those areas that meet NMFS's information requirements. 50 C.F.R. §216.191; RTC 95, 72 Fed. Reg. at 14 46,879 (describing biological information necessary to make an OBIA determination).2/ 15 Notwithstanding, Plaintiffs' assertion that NMFS did not consider geographical restrictions is 16 without basis. NMFS has designated ten large areas as OBIAs, including six areas newly designated in 17 the Final Rule. 50 C.F.R § 216.184(f). In response to a comment on the Proposed Rule from NRDC, 18 NMFS has newly imposed a 1km buffer zone around these OBIAs to limit transmissions to below 174 dB 19 in the OBIAs, which is below the 180 dB exposure threshold at which injury to marine mammals may 20 occur. 50 C.F.R § 216.184(e)(2); RTC 97, 72 Fed. Reg. at 46,879. In addition, the record shows that 21 NMFS carefully considered many other areas that did not qualify for designation, including those raised 22 by Plaintiffs in public comments. See RTCs 91, 92, 93, 94, 95, 96, 97; 72 Fed. Reg. at 46,878 - 46,879. 23 For example, the Final Rule explains that the Oyashio/Kuroshio area off Kamchatka and the Emperor 24 Seamount Chain, both cited in the Court's NRDC I Opinion, were not designated for two good reasons 25 ­ because the northern portion of the Oyashio/Kuroshio area is in the Bering Sea, where SURTASS LFA 26 27 28 / It is not only impracticable and unnecessary to designate every productive area of the ocean as an OBIA, it is scientifically short-sighted. There are few, if any, non-productive ocean areas. RTC 79, 72 Fed. Reg. at 46,875-76; Clark Decl. ¶34.
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1 sonar does not operate at all, and because the southern portion of that area and the Emperor Seamount 2 Chain encompass large expanses of open ocean that contain no well-defined migration corridors for 3 marine mammals. See RTC 92, 72 Fed. Reg. at 46,878; SEIS at 10-25. Unlike known migration paths, 4 where marine mammal density is significantly greater than in surrounding waters, non-coastal migratory paths extend over such broad swaths of ocean that marine mammal density is not much greater than in 5 other parts of the open ocean. SEIS at 10-125; RTC MIC11, 67 Fed. Reg. 46712, 46749 (July 16, 2002) 6 (Exh 18). Thus, NMFS determined that open ocean concentrations of marine mammals are adequately 7 protected by the three-part monitoring and mitigation protocols. Id. 8 NMFS also considered designating Marine Protected Areas (MPAs), including those located 9 offshore, as OBIAs. See RTCs 93, 94, 96; 72 Fed. Reg. at 46,878-46,879. NMFS has designated the 10 Gully, an offshore Canadian MPA, as an OBIA. See RTC 93, 72 Fed. Reg. at 46,878; 50 C.F.R. 11 §216.184(f). As Plaintiffs acknowledge, most MPAs are located in coastal waters and are already 12 protected by the 12nm coastal exclusion zone. See RTCs 93, 94; 72 Fed. Reg. at 46,878 - 46,879; SEIS 13 at 10-125 (evaluating "high seas" MPAs). MPAs offshore of the Philippines, Taiwan, and Russia were 14 determined to be located in waters too shallow for SURTASS LFA operations and were not designated 15 on that basis. SEIS at 10-126, 127. In its Proposed Rule, NMFS solicited public comments on the marine 16 mammal distributions, densities, and biologically important activities that take place in the Northwestern 17 Hawaiian Islands to assist the agency in determining whether certain areas qualified for designation as an 18 OBIA. NMFS received no public comments in response to this request. 72 Fed. Reg. at 46,887; ROD 19 at 57-58.3/ Furthermore, it is not true, as Plaintiffs contend, that NMFS failed to consider marine areas 20 3 / Plaintiffs argue, without merit, that by allowing the public to participate in the OBIA process 21 NMFS has improperly delegated its statutory responsibilities. NMFS's Rule engages, but does not depend on the public for designating OBIAs. RTC 84, 72 Fed. Reg. at 46,876. Moreover, Plaintiffs' 22 argument that NMFS has improperly assigned the burden to the public "after deployment" rings hollow 23 given that Plaintiffs had five years prior to this rulemaking in which to petition for the designation of OBIAs, during the pendency of the injunction, and not a single one did. Hollingshead Decl. ¶8. Indeed, 24 during the first five years of operation under the first rule, NMFS received no nominations from the public (including the Plaintiffs) for the designation of additional OBIAs. RTC 84, 72 Fed. Reg. at 25 46,876. In contrast, after five years of silence, Plaintiffs' comment letter on the Proposed Rule lists well over 100 areas that they argue should be considered for OBIA designation, but it provides almost no 26 substantive information that would assist NMFS in assessing the merits of any one of those areas. 27 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-554 (1978) (holding that participants in the administrative process must "structure their participation so that it is meaningful, so 28 that it alerts the agency to the intervenors' position and contentions."). If Plaintiffs had better data about
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1 identified by other scientific bodies. NMFS specifically considered areas identified by the IWC and 2 compiled by the World Conservation Union in connection with the World Bank and Great Barrier Reef 3 Marine Park Authority. See RTCs 95, 96; 72 Fed. Reg. at 46,879. These and other areas did not qualify 4 because they either were too vaguely described and/or lacked the detailed biological information needed for an OBIA designation, were recognized for non-biological reasons, (e.g., IWC Indian Ocean Whale 5 Sanctuary), or were within areas from which sonar use is already excluded (e.g. Arctic and Antarctic 6 Oceans). Id. For all of these reasons, NMFS was not arbitrary and capricious to adopt a cautious 7 approach to designating OBIAs. In addition to OBIA designation, NMFS has reasonably relied on a suite 8 of other more immediate tools for effecting the least practicable adverse impact to marine mammals. 9 b. NMFS's Imposition of a 12nm Coastal Exclusion Zone Is Reasonable. 10 Plaintiffs also contest NMFS's decision to impose a 12nm coastal exclusion zone on two grounds: 11 (1) that NMFS "failed to consider the full range of practicable options" and (2) that it "failed to consider 12 multiple relevant factors" pertaining to marine mammal impacts. Pl Br. at 12-13. As the record shows, 13 Plaintiffs are incorrect on both counts. See, RTCs 67, 69; 72 Fed. Reg. at 46,872-46,873; SEIS 4-70 to 14 4-79. First, contrary to Plaintiffs' claim, the prior case did not establish that "the Navy can effectively test 15 and train with LFA at distances from 43 to 200 nautical miles from the coast." Pl. Br. at 12. Quite the 16 opposite, the Court found that the EIS explained that restricting operations to distances of 43 to 200 nm 17 from the coast would "severely limit the effectiveness of the sonar to detect submarines at long enough 18 ranges to allow proper responses." NRDC I, 279 F. Supp.2d at 1162. What the prior record failed to 19 explain adequately was "why the zone could not be extended more than twelve nautical miles but less than 20 43 to 200 nautical miles." Id. The SEIS examined this very question. See RTC 67, 72 Fed. Reg. at 21 46,872-46,873; SEIS at 4-70 to 4-79. 22 The SEIS considered a 25 nm coastal exclusion zone, using an analytical methodology that 23 assessed impacts for nine possible combinations of coastal shelf type (narrow, medium, and wide shelf) 24 and marine mammal species type (shelf, shelf break, and pelagic species). SEIS at 4-78, 4-79. Contrary 25 a particular area that merited its designation as an OBIA, they failed to bring that information to NMFS's attention during the notice and comment periods on the Draft SEIS (Ex. 17), the Notice of Receipt of 26 [Navy's] Application (Ex. 13), and the Proposed Rule (Ex. 9), or during the five years preceding this 27 rulemaking. See Greenpeace Action v. Franklin, 14 F.3d 1324, 1334 (9th Cir. 1992) (holding that basic fairness dictates that plaintiffs "may not establish a scientific controversy post hoc"). 28
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1 to previous assumptions, the analysis revealed that, in most cases, increasing the coastal exclusion zone 2 to 25 nm was less protective than the 12 nm coastal exclusion zone. Id. In fact, a 25 nm coastal exclusion 3 zone decreased potential impacts to marine species in only one out of nine case studies, and increased 4 potential impacts in six out of nine case studies. Id. While increasing the coastal exclusion zone reduced exposure levels for shelf species, it did so at the expense of increasing exposure levels for shelf break and 5 pelagic species. See RTC 67, 69; 72 Fed. Reg. at 46,872. Contrary to Plaintiffs' criticisms, Pl. Br. at 12, 6 this analysis clearly factored in shelf break and bathymetric considerations, and 25 nm was selected, in 7 part, because it was seaward of the shelf break for all three of the shelf cases analyzed. See RTC 67, 72 8 Fed. Reg. at 46,872. Increasing the distance to 30 nm, or even 60 nm, would not have made a significant 9 difference in the outcome. Id. The Final Rule shows that NMFS properly weighed the "trade-offs" in 10 mitigation: "Analysis of the geometry, bathymetry, sound propagation, and animal densities in a variety 11 of sample areas revealed that the overall risk to marine mammals is lower when SURTASS LFA is 12 operated at 12nm than when it is operated at 25 nm." RTC 69, 72 Fed. Reg. at 46,873. Given these facts 13 and "[g]iven the Navy's stated need to have flexibility to use the system closer to shore if training, testing, 14 or military operational demands required it . . .," NMFS reasonably determined that a 12 nm coastal zone 15 met its obligation to prescribe mitigation that "effects the least practicable adverse impact.4/ Id. 16 In making this decision, NMFS considered the relevant biological factors, including impacts to 17 coastal species and impacts to listed species. Plaintiffs' claim that the SEIS fails to account for 18 near-coastal species is not true. Pl. Br. at 13, Whitehead Decl. ¶¶13-16, Hoyt Decl. ¶6, Baird ¶18. SEIS 19 Subchapter 3.2. addresses near coastal species, including harbor porpoise, sea otters, harbor seal, Hector's 20 dolphin, and vaquita which inhabit near-shore waters including shallow bays, estuaries, and tidal channels 21 under about 200 m (655 ft) in depth; some species of sea lions which live in coastal waters but venture 22 into offshore deep water to feed; and minke whales which were also modeled for eight of the nine LFA 23 mission sites analyzed in Subchapter 4.4.1 of the SEIS. The scenario that Plaintiffs posit, in which the 24 LFA sonar source is moving inshore as coastal animals try to seek safety in shallower waters, is extremely 25 unlikely, given the manner in which SURTASS LFA sonar is typically operated. Although the LFA 26 vessel will necessarily be moving perpendicular toward the coast part of the time there is no foreseeable 27 4 / Plaintiffs' argument for a larger coastal exclusion zone is in tension with their stated concern for 28 beaked whale strandings. Tyack Decl. ¶ 31.
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1 LFA operational scenario where this would be occurring for an extended period of time. Johnson Decl. 2 ¶11. Finally, as discussed above, the Final Rule and SEIS carefully assessed the merits of designating a 3 wide array of MPAs as OBIAs and concluded that the 12nm coastal exclusion zone provided the necessary 4 protections for marine mammals in those coastal areas. By necessity, the SEIS's analysis of comparative coastal exclusion zones used a generic 5 methodology, rather than a site-specific methodology, since the potential sites would have been almost 6 limitless. See SEIS Subchapters 4.7.6 and 4.7.7; see also SEIS at 10-120 to 10-123 (responding to 7 comments on methodology). Agencies are entitled to a high degree of deference in the selection of 8 scientific methodology. See Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1077 (9th Cir. 2003) ("We 9 defer to agency expertise on questions of methodology unless the agency has completely failed to address 10 some factor, consideration of which was essential to a truly informed decision."). NMFS reasonably relied 11 on the SEIS's finding that extending the coastal exclusion zone to 25 nm produced, at best, a mixed result, 12 and the agency's decision in light of this evidence is entitled to deference. See Central Arizona Water 13 Conservation Dist. v. EPA, 990 F.2d 1531, 1539 (9th Cir. 1993) (holding that courts should "defer to the 14 agency's interpretation of equivocal evidence, so long as it is reasonable"). 15 c. NMFS's Monitoring Requirements are Reasonable. 16 Plaintiffs' argument that the NRDC I decision compelled NMFS to change its monitoring 17 requirements is simply incorrect. Pl. Br. at 14. See FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 18 145 (1940) (agency is not foreclosed from making the same decision once it has corrected the errors 19 identified by the Court). Here, Plaintiffs concede that the Navy and NMFS filled the gaps in the record 20 identified by the Court by evaluating the use of small boat surveys and aerial monitoring. Pl. Br. at 14. 21 That is all that was required. See SEIS Subchapter 5.4; RTCs 67, 89, 101; 72 Fed. Reg. at 46,872, 22 46,877, 46,880. Contrary to Plaintiffs' claims, this review was not cursory or lacking explanation. The 23 SEIS evaluates the use of small boats, large boats, multiple boats, pow