Free Declaration in Support - District Court of California - California

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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 Civil Action No. 07-4771-EDL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU DECLARATION OF SARAH SCHINDLER 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.
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I, Sarah Schindler, declare under penalty of perjury under the laws of the United States of America that the following is true and correct: 1. I am an attorney with Morrison and Foerster in San Francisco, California, and an

attorney for Plaintiffs in the present case. I am duly licensed to practice law in the State of California and before the United States District Court for the Northern District of California. I am submitting this Declaration in support of Plaintiffs' Motion for Preliminary Injunction. The statements contained in this Declaration are true and correct to the best of my knowledge and, in the case of my opinions, I believe them to be true. If called as a witness, I could and would testify to the statements contained herein. 2. True and correct copies of exhibits cited in Plaintiffs' Memorandum are attached

to this Declaration as Exhibits 1 through 106. Exhibit 1 is a true and correct copy of NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003), reporting the Court's Opinion and Order on summary judgment. Exhibit 2 is a true and correct copy of NRDC v. Evans, 232 F. Supp. 2d 1003 (N.D. Cal. 2002), reporting the Court's Opinion and Order on preliminary injunction. Exhibit 3 is a true and correct copy of the Stipulation Regarding Permanent Injunction, NRDC v. Evans, CV 02-3805 EDL, signed by the Court on October 14, 2003. Exhibit 4 is a true and correct copy of the Amendment to the Stipulation Regarding Permanent Injunction, NRDC v. Gutierrez, CV 02-3805 EDL, signed by the Court on July 7, 2005. Exhibit 5 is a true and correct copy of the Order Granting Defendant's Rule 60(b) Motion, NRDC v. Evans, CV 02-3805 EDL, issued by the Court on December 1, 2004. Exhibit 6 is a true and correct copy of the February 10, 2006 comment letter from Joel R. Reynolds, NRDC, to J.S. Johnson, SURTASS LFA Sonar EIS Program Manager, on the Navy's Draft Supplemental Environmental Impact Statement for Surveillance Towed Array Sensor
System Low Frequency Active (SURTASS LFA) Sonar.

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Exhibit 7 is a true and correct copy of the October 30, 2006 comment letter from Joel R. Reynolds, NRDC, to P. Michael Payne, NMFS, on the Navy's application for an incidental take permit for SURTASS LFA sonar. Exhibit 8 is a true and correct copy of the July 10, 2007 letter from Michael Jasny, NRDC, to William Hogarth, NMFS, requesting an extension of the public comment period on NMFS's Proposed Rule for SURTASS LFA sonar. Exhibit 9 is a true and correct copy of the July 24, 2007 comment letter from Joel R. Reynolds, NRDC; Jean-Michel Cousteau, Ocean Futures Society; Julia Hathaway, International Fund for Animal Welfare; Naomi Rose, Humane Society of the U.S.; Elizabeth Griffin, Oceana; Bill Rossiter, Cetacean Society International' Sigrid Lüber, European Coalition for Silent Oceans; and Mel Nutter, League for Coastal Protection; to P. Michael Payne, NMFS, on NMFS's Proposed Rule for the Navy's SURTASS LFA System. Exhibit 10 is a true and correct copy of portions of the Final Overseas Environmental Impact Statement and Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, U.S. Department of the Navy, January 2001. Exhibit 11 is a true and correct copy of portions of Technical Report 1 to the Final Overseas Environmental Impact Statement and Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, U.S. Department of the Navy, January 2001. Exhibit 12 is a true and correct copy of portions of Technical Report 2 to the Final Overseas Environmental Impact Statement and Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, U.S. Department of the Navy, January 2001. Exhibit 13 is a true and correct copy of portions of the Final Supplemental Environmental Impact Statement for Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, U.S. Department of the Navy, April 2007.

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Exhibit 14 is a true and correct copy of portions of NMFS's Final Rule for Taking Marine Mammals Incidental to the U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 72 Fed. Reg. 46,846-46,893, August 21, 2007. Exhibit 15 is a true and correct copy of portions of NMFS's Biological Opinion on the Proposed Employment of SURTASS LFA from 2007-2012 and the Proposed Regulations to Authorize the Navy "Take" Marine Mammals Incident to same, August 14, 2007. Exhibit 16 is a true and correct copy of NMFS's Incidental Take Statement for the Biological Opinion on the Proposed Letter of Authorization to Authorize the Navy to Take Marine Mammals Incidental to Its Employment of Surveillance Towed Array Sensor System Low Frequency Active Sonar for the Period August 16, 2007, through August 15, 2012, issued August 15, 2007. Exhibit 17 is a true and correct copy of portions of NMFS's amended Supplemental Biological Opinion on the Proposed Letters of Authorization to Authorize the Navy to Take Marine Mammals Incidental to Its Employment of Surveillance Towed Array Sensor System Low Frequency Active Sonar for the Period August 16, 2007, through August 15, 2008, issued August 17, 2007. Exhibit 18 is a true and correct copy of portions of the Application for Letters of Authorization Under Section 101(a)(5)(A) of the Marine Mammal Protection Act for Activities Associated with the Employment of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar, U.S. Department of the Navy, May 2006. Exhibit 19 is a true and correct copy of the August 15, 2007 letter from James H. Lecky, NMFS, to Captain Douglas S. Prince, Navy, enclosing NMFS's Letters of Authorization for the take of marine mammals incidental to the Navy's operation of SURTASS LFA sonar; Exhibit 20 is a true and correct copy of portions of the Final Comprehensive Report for the Operation of the Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar Onboard the R/V Cory Chouest and USNS IMPECCABLE (T-AGOS 23) under the National Marine Fisheries Service Regulations 50 CFR 216 Subpart Q, U.S. Department of the Navy, January 2007.
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Exhibit 21 is a true and correct copy of the Application for Renewals of Letters of Authorization for the Taking of Marine Mammals Incidental to the Operation of SURTASS LFA Sonar Onboard R/V Cory Chouest and USNS IMPECCABLE (T-AGOS 23) under NMFS Final Rule (50 CFR 216 Subpart Q), U.S. Department of the Navy, March 31, 2005. Exhibit 22 is a true and correct copy of portions of Annual Report No. 4: Operation of the Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar Onboard the R/V Cory Chouest and USNS IMPECCABLE (T-AGOS 23) under the National Marine Fisheries Service Letters of Authorization of 12 August 2005, May 2006. Exhibit 23 is a true and correct copy of the July 11, 2007 letter from Representatives Mike Thompson, Lynn Woolsey, Thomas Allen, George Miller, Anna Eshoo, Maurice Hinchey, Peter DeFazio, Lois Capps, Jim McDermott, Zoe Lofgren, Jay Inslee, Wayne Gilchrest, Michael Michaud, Carol Shea-Porter, Barney Frank, Darlene Hooley, Sam Farr, Jim Moran, David Wu, and Edolphus Towns, U.S. House of Representatives, to William Hogarth, Assistant Administrator for Fisheries, NMFS, concerning NMFS's Proposed Rule for SURTASS LFA sonar. Exhibit 24 is a true and correct copy of the July 19, 2007 letter from Senators Olympia Snowe and Susan Collins, U.S. Senate, to William Hogarth, Assistant Administrator for Fisheries, NMFS, concerning NMFS's Proposed Rule for SURTASS LFA sonar. Exhibit 25 is a true and correct copy of the July 23, 2007 letter from Senators Barbara Boxer, Maria Cantwell, Benjamin Cardin, Russell Feingold, Edward Kennedy, John Kerry, Amy Klobuchar, Frank Lautenberg, Robert Menendez, and Ron Wyden, U.S. Senate, to Conrad Lautenbacher, Under Secretary of Commerce for Oceans and Atmosphere, NOAA, concerning NMFS's Proposed Rule for SURTASS LFA sonar. Exhibit 26 is a true and correct copy of portions of the Transcript of the October 18, 2002 hearing, NRDC v. Evans, CV 02-3805 EDL. Exhibit 27 is a true and correct copy of portions of the 2004 Report of the Scientific Committee of the International Whaling Commission.

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Exhibit 28 is a true and correct copy of portions of the "Joint Interim Report: Bahamas Marine Mammal Stranding Event of 15-16 March 2000," U.S. Department of Commerce and Secretary of the Navy, December 2001. Exhibit 29 is a true and correct copy of "A Mass Stranding of Cetaceans Caused by Naval Sonar in the Bahamas," K.C. Balcomb and D.E. Claridge, 8 Bahamas Journal of Science 1-12 (May 2001). Exhibit 30 is a true and correct copy of "Mass Strandings of Beaked Whales in the Canary Islands," V. Martín, A. Servidio, and S. Garcia, from Proceedings of the Workshop on Active Sonar and Cetaceans, ed. P.G.H. Evans and L.A. Miller (2004). Exhibit 31 is a true and correct copy of "`Gas and Fat Embolic Syndrome' Involving a Mass Stranding of Beaked Whales (Family Ziphiidae) Exposed to Anthropogenic Sonar Signals," A. Fernández, J.F. Edwards et al., 42 Veterinary Pathology 446-57 (2005). Exhibit 32 is a true and correct copy of "Gas-Bubble Lesions in Stranded Cetaceans," P.D. Jepson, M. Arbelo et al., 425 Nature 575-76 (2003). Exhibit 33 is a true and correct copy of portions of NMFS's report entitled "Hawaiian Melon-headed Whale (Peponacephala electra) Mass Stranding Event of July 3-4, 2004," April 2006. Exhibit 34 is a true and correct copy of the March 21, 2002 email correspondence between John Mayer, Marine Acoustics, Inc., and Joseph Johnson, Navy, with appended correspondence with Ken Hollingshead, National Marine Fisheries Service ("NMFS"), concerning the 1999 mass stranding of beaked whales in the U.S. Virgin Islands. Exhibit 35 is a true and correct copy of portions of "Summary Record, SACLANTCEN Bioacoustics Panel, La Spezia, Italy, 15-17 June 1998," a report on the 1996 mass stranding of beaked whales in the Kyparissiakos Gulf, SACLANT Undersea Research Centre, 1998. Exhibit 36 is a true and correct copy of "The First Mass Stranding that Was Associated with the Use of Active Sonar (Kyparissiakos Gulf, Greece, 1996)," A. Frantzis, from Proceedings of the Workshop on Active Sonar and Cetaceans, ed. P.G.H. Evans and L.A. Miller (2004).
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Exhibit 37 is a true and correct copy of "Does Acoustic Testing Strand Whales?" A. Frantzis, 392 Nature 29 (1998). Exhibit 38 is a true and correct copy of portions of "Beaked Whale Necropsy Findings," D.R. Ketten, dated September 20, 2002, concerning the 2000 mass stranding of beaked whales on Madeira. Exhibit 39 is a true and correct copy of "Mass Strandings of Cuvier's Beaked Whales in Japan: U.S. Naval Acoustic Link?" R.L. Brownell, Jr., T. Yamada et al., paper submitted to and reported by the International Whaling Commission Scientific Committee, IWC SC/56/E37 (2004). Exhibit 40 is a true and correct copy of "Unusual Cetacean Stranding Events of Taiwan in 2004 and 2005," J.Y. Wang and S.-C. Yang, 8 Journal of Cetacean Research and Management 283-92 (2006). Exhibit 41 is a true and correct copy of portions of the 2006 Report of the Scientific Committee of the International Whaling Commission. Exhibit 42 is a true and correct copy of portions of H. Levine, "Active Sonar Waveform," a report commissioned from the JASON Group by the Office of Naval Research (2004). Exhibit 43 is a true and correct copy of "Understanding the Impacts of Anthropogenic Sound on Beaked Whales," T.M. Cox, T.J. Ragen et al., 7 Journal of Cetacean Research and Management 177-87 (2006). Exhibit 44 is a true and correct copy of "Diving Behaviour of Cuvier's (Ziphius cavirostris) and Blainville's (Mesoplodon densirostris) Beaked Whales in Hawai'i," R.W. Baird, D.L. Webster, et al., 84 Canadian Journal of Zoology 1120-28 (2006). Exhibit 45 is a true and correct copy of "Cumulative Sperm Whale Bone Damage and the Bends," M.J. Moore and G.A. Early, 306 Science 2215 (2004), together with six pages of supplemental material issued by Science.

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Exhibit 46 is a true and correct copy of "Acute and Chronic Gas Bubble Lesions in Cetaceans Stranded in the United Kingdom," P.D. Jepson, R. Deaville et al., 42 Veterinary Pathology 291-305 (2005). Exhibit 47 is a true and correct copy of "A Call for Research to Assess Risk of Acoustic Impact on Beaked Whale Populations," B. Taylor, J. Barlow et al., paper submitted to and reported by IWC Scientific Committee, SC/56/E36 (2004). Exhibit 48 is a true and correct copy of "Impacts of Anthropogenic Sound," J. Hildebrand, from Marine Mammal Research: Conservation beyond Crisis, ed. T.J. Ragen, J.E. Reynolds III, W.F. Perrin, and R.R. Reeves (2005). Exhibit 49 is a true and correct copy of a "Statement of Concern" from members of the scientific community on SURTASS LFA sonar, with list of signatories (2001). Exhibit 50 is a true and correct copy of portions of Marine Mammals and Noise, W.J. Richardson, C.R. Greene, Jr., C.I. Malme, and D.H. Thomson (1995). Exhibit 51 is a true and correct copy of portions of Oceans of Noise, Whale and Dolphin Conservation Society (2004). Exhibit 52 is a true and correct copy of a May 31, 2001 comment letter on the NMFS 2001 Proposed Rule for SURTASS LFA by Patrick J.O. Miller, Woods Hole Oceanographic Institution. Exhibit 53 is a true and correct copy of "Whale Songs Lengthen in Response to Sonar," P.J.O. Miller, N. Biassoni et al., 405 Nature 903 (2000). Exhibit 54 is a true and correct copy of a June 20, 1998 posting on the MARMAM listserv, by Drs. Lindy Weilgart and Hal Whitehead, Dalhousie University, entitled "Re: Article on LFA Playbacks to Hawaiian Humpbacks (fwd)." Exhibit 55 is a true and correct copy of "Considering the Temporal and Spatial Scales of Noise Exposures from Seismic Surveys on Baleen Whales," C.W. Clark and G.C. Gagnon, paper submitted to IWC Scientific Committee, IWC SC/58/E9 (2006).

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Exhibit 56 is a true and correct copy of "Sperm Whale Seismic Study in the Gulf of Mexico, Summary Report: 2002-2004," Minerals Management Service, Gulf of Mexico Region (2006). Exhibit 57 is a true and correct copy of "Does Intense Ship Noise Disrupt Foraging in Deep-Diving Cuvier's Beaked Whales (Ziphius cavirostris)?" N.A. Soto, M. Johnson et al., 22 Marine Mammal Science 690-99 (2006). Exhibit 58 is a true and correct copy of "The Influence of Acoustic Emissions for Underwater Data Transmission on the Behaviour of Harbour Porpoises (Phocoena phocoena) in a Floating Pen," R.A. Kastelein, W.C. Verboom et al., 59 Marine Environmental Research 287307 (2005). Exhibit 59 is a true and correct copy of "Estimating Relative Energetic Costs of Human Disturbance to Killer Whales (Orcinus orca)," R. Williams, D. Lusseau, and P.S. Hammond, 133 Biological Conservation 301-11 (2006). Exhibit 60 is a true and correct copy of "Long-Range Effects of Airgun Noise on Marine Mammals: Responses as a Function of Received Sound Level and Distance," D.E. Bain and R. Williams, paper submitted to the International Whaling Commission Scientific Committee, SC/58/E35 (2006). Exhibit 61 is a true and correct copy of "North Atlantic Right Whales (Eubalaena glacialis) Ignore Ships but Respond to Alerting Stimuli," D.P. Nowacek, M.P. Johnson, and P.L. Tyack, 271 Proceedings of the Royal Society of London, Part B: Biological Sciences 227 (2004). Exhibit 62 is a true and correct copy of portions of "Impacts of Sakhalin II Phase 2 on Western North Pacific Gray Whales and Related Biodiversity," IUCN Independent Scientific Review Panel (2005). Exhibit 63 is a true and correct copy of "Unsustainable Dolphin-Watching Tourism in Fiordland, New Zealand," D. Lusseau, L. Slooten, and R.J.C. Currey, 3 Tourism in Marine Environments 173-78 (2006).

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Exhibit 64 is a true and correct copy of "Assessment of Acoustic Exposures on Marine Mammals in Conjunction with USS Shoup Active Sonar Transmissions in the Eastern Strait of Juan de Fuca and Haro Strait, Washington--5 May 2003," National Marine Fisheries Service, January 21, 2005. Exhibit 65 is a true and correct copy of "High Intensity Anthropogenic Sound Damages Fish Ears," R.D. McCauley, J. Fewtrell, and A.N. Popper, 113 Journal of the Acoustical Society of America 638-42 (2003). Exhibit 66 is a true and correct copy of portions of "The Effects on Fish and Other Marine Animals of High-Level Underwater Sound," A.W.H. Turnpenny, K.P. Thatcher, and J.R. Nedwell, report to U.K. Defence Research Agency (1994). Exhibit 67 is a true and correct copy of "Effects of Noise on Eggs and Larvae of Two Estuarine Fishes," A. Banner and M. Hyatt, 102 Transactions of the American Fisheries Society 134-37 (1973). Exhibit 68 is a true and correct copy of "Effects of Boat Engine Noise on the Auditory Sensitivity of the Fathead Minnow, Pimephales promelas," A.R. Scholik and H.Y. Yan, 63 Environmental Biology of Fishes 203-09 (2002). Exhibit 69 is a true and correct copy of "Effects of Seismic Shooting on Local Abundance and Catch Rates of Cod (Gadus morhua) and Haddock (Melanogrammus aeglefinus)," A. Engås, S. Løkkeborg et al., 53 Canadian Journal of Fisheries and Aquatic Sciences 2238-49 (1996). Exhibit 70 is a true and correct copy of "Acoustic Mapping of Pelagic Fish Distribution and Abundance in Relation to a Seismic Shooting Area off the Norwegian West Coast," A. Slotte, K. Hansen et al., 67 Fisheries Research 143-50 (2004). Exhibit 71 is a true and correct copy of portions of the Hawaii Range Complex Draft Environmental Impact Statement/Overseas Environmental Impact Statement (Draft EIS/OEIS) (July 2007). Exhibit 72 is a true and correct copy of "Effect of Noise on Growth and Reproduction of Crangon crangon in Rearing Tanks," J.P. Lagardère, 71 Marine Biology 177 (1982).
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Exhibit 73 is a true and correct copy of portions of "Severe Injuries in the Giant Squid Architeuthis dux Stranded After Seismic Explorations," and "A Review of Records of Giant Squid in the North-Eastern Atlantic and Severe Injuries in Architeuthis dux Stranded After Acoustic Exploration," A. Guerra, A.F. González, and F. Rocha, presentation given at the 2004 International Council for the Exploration of the Sea (ICES) Annual Science Conference, Vigo, Spain, September 22-25, 2004. Exhibit 74 is a true and correct copy of "NATO Undersea Research Centre Human Diver and Marine Mammal Risk Mitigation Rules and Procedures," adopted by the NATO Undersea Research Centre, concerning operation of hull-mounted mid-frequency active sonar, September 2006. Exhibit 75 is a true and correct copy of Planning Guide 16 and Procedure S1 of the "Maritime Exercise Areas Environmental Management Plan," adopted by the Royal Australian Navy, concerning operation of hull-mounted mid-frequency active sonar, July 8, 2005. Exhibit 76 is a true and correct copy of portions of the Public Environment Report for Talisman Saber 2007, Australian Department of Defense, October 2006. Exhibit 77 is a true and correct copy of the Department of Defense's Notice of Intent to Prepare an Environmental Impact Statement/Overseas Environmental Impact Statement for the Mariana Islands Range Complex and to Announce Public Scoping Meetings, 72 Federal Register 30,557-30,559, June 1, 2007. Exhibit 78 is a true and correct copy of portions of the Environmental Assessment/ Overseas Environmental Assessment for Joint Task Force Exercises and Composite Training Unit Exercises, Navy Third Fleet, February 2007. Exhibit 79 is a true and correct copy of the June 30, 2006 National Defense Exemption from Requirements of the Marine Mammal Protection Act for Certain DoD Mid-Frequency Active Sonar Activities, issued by Deputy Secretary of Defense Gordon England. Exhibit 80 is a true and correct copy of the January 23, 2007 National Defense Exemption from Requirements of the Marine Mammal Protection Act for Certain DoD Military

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Readiness Activities That Employ Mid-Frequency Active Sonar or Improved Extended Echo Ranging Sonobuoys, issued by Deputy Secretary of Defense Gordon England. Exhibit 81 is a true and correct copy of "Mitigating, Monitoring and Assessing the Effects of Anthropogenic Sound on Beaked Whales," J. Barlow and R. Gisiner, 7 Journal of Cetacean Research and Management 239-49 (2006). Exhibit 82 is a true and correct copy of "Deep-Water Taphonomy of Vertebrate Carcasses: A Whale Skeleton in the Bathyal Santa Catalina Basin," P.A. Allison, C.R. Smith et al., 17 Paleobiology 78-89 (1991). Exhibit 83 is a true and correct copy of portions of "Investigation and Management of Disease in Wild Animals," G.A. Wobeser (1994). Exhibit 84 is a true and correct copy of "Key Areas for Beaked Whales Worldwide," C. MacLeod and G. Mitchell, 7 Journal of Cetacean Research and Management 309-22 (2006). Exhibit 85 is a true and correct copy of "Worldwide Structure of mtDNA Diversity Among Cuvier's Beaked Whales (Ziphius cavirostris): Implications for Threatened Populations," M.L. Dalebout, K.M. Robertson et al., 14 Molecular Biology 3353-71 (2005). Exhibit 86 is a true and correct copy of "Site Fidelity, Associations, and Movements of Cuvier's (Ziphius cavirostris) and Blainville's (Mesoplodon densirostris) Beaked Whales off the Island of Hawai'i," D.J. McSweeney, R.W. Baird, and S.D. Mahaffy, 23 Marine Mammal Science 666-87 (2007). Exhibit 87 is a true and correct copy of portions of "U.S. Pacific Marine Mammal Stock Assessments: 2006," National Marine Fisheries Service Southwest Fisheries Science Center, January 2007. Exhibit 88 is a true and correct copy of portions of Marine Protected Areas for Whales, Dolphins and Porpoises, E. Hoyt (2005). Exhibit 89 is a true and correct copy of portions of the Report of the Fourth Meeting of the Scientific Committee of ACCOBAMS (Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area), Monaco, Nov. 5-8, 2006 (2007).

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Exhibit 90 is a true and correct copy of "Predicting Cuvier's (Ziphius cavirostris) and Mesoplodon Beaked Whale Population Density from Habitat Characteristics in the Eastern Tropical Pacific Ocean," M.C. Ferguson, J. Barlow et al., 7 Journal of Cetacean Research and Management 287­99 (2006). Exhibit 91 is a true and correct copy of "Techniques for Cetacean-Habitat Modeling," J.V. Redfern, M.C. Ferguson et al., 310 Marine Ecology Progress Series 271-95 (2006). Exhibit 92 is a true and correct copy of the National Fish and Wildlife Foundation Final Programmatic Report for "Status of Humpback Whales & Human Impacts" (SPLASH), Cascadia Research, January 2007. Exhibit 93 is a true and correct copy of "Studies of Odontocete Population Structure in Hawaiian Waters: Results of a Survey through the Main Hawaiian Islands in May and June 2003," R.W. Baird, D.J. McSweeney et al. report to the National Oceanic and Atmospheric Administration (2003). Exhibit 94 is a true and correct copy of "Mark-Recapture Abundance Estimate of Bottlenose Dolphins (Tursiops truncatus) Around Maui and Lana'i, Hawai'i, During the Winter of 2000/2001," report prepared for NMFS (2001). Exhibit 95 is a true and correct copy of "Lessons from Monitoring Trends in Abundance of Marine Mammals," B.L. Taylor, M. Martinez et al., 23 Marine Mammal Science 157-75 (2007). Exhibit 96 is a true and correct copy of December 9, 1999 email correspondence from Roger Gentry, NMFS, to Clay Spikes, Marine Acoustics, filed as AR NMFS 121 in NRDC v. Evans, CV 02-3805 EDL. Exhibit 97 is a true and correct copy of portions of the Declaration of Darlene Ketten, filed in NRDC v. Evans, CV 02-3805 EDL and dated September 26, 2002. Exhibit 98 is a true and correct copy of the Notice of Availability of Finding of No Significant Harm for Valiant Shield 07, 72 Fed. Reg. 43252-43253, Aug. 3, 2007.

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Exhibit 99 is a true and correct copy of Cetacean Stranding Database, a website available at www.legaard.org/strandings, last updated on March 22, 2005 and accessed on September 11, 2007. Exhibit 100 is a true and correct copy of "Now, an Underwater Robot to Spy on Whales and Protect Them from Ships," Asian News International, April 29, 2007. Exhibit 101 is a true and correct copy of the Statement by Olympia Snowe, 2003 Cong. Rec. S14488 to S14489, November 12, 2003. Exhibit 102 is a true and correct copy of NMFS's Notice of Issuance of an Incidental Harassment Authorization for RIMPAC 2006, 71 Fed. Reg. 38,710-38,738, July 7, 2007. Exhibit 103 is a true and correct copy of the Temporary Restraining Order, NRDC v. Winter, CV 06-4131 FMC (JCx), issued July 3, 2006. Exhibit 104 is a true and correct copy of the Order Denying Defendants' Ex Parte Applications, NRDC v. Winter, CV 06-4131 FMC (JCx), issued July 5, 2006. Exhibit 105 is a true and correct copy of the Order Denying Defendants' Motion to Dismiss or Stay and Granting in Part and Denying in Part Plaintiffs' Motion for a Preliminary Injunction, NRDC v. Winter, CV 07-0335 FMC (FMOx), 2007 U.S. Dist. LEXIS 57909 (C.D. Cal. Aug. 7, 2007). Exhibit 106 is a true and correct copy of the Order to Stay Preliminary Injunction Pending Appeal, NRDC v. Winter, CV 07-0335 FMC (FMOx) (9th Cir., Aug. 31, 2007). I hereby declare under penalty of perjury that the foregoing is true and correct. Executed this 12th day of October, 2007.

/s/ Sarah Schindler Sarah Schindler

I hereby attest that I have on file all holograph signatures for any signatures indicated by 26 a "conformed" signature (/s/) within this e-filed document. 27 28
DECLARATION OF SARAH SCHINDLER Case No. 07-4771-EDL

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Case 3:07-cv-04771-EDL

Document 15

Filed 10/12/2007

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Dated: October 12, 2007

MORRISON & FOERSTER LLP By:

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

DECLARATION OF SARAH SCHINDLER Case No. 07-4771-EDL

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