Free Motion for Preliminary Injunction - District Court of California - California

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ROBERT L. FALK (SBN 142007) ROBIN S. STAFFORD (SBN 200950) SARAH SCHINDLER (SBN 236414) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: [email protected] Email: [email protected] Email: [email protected] JOEL R. REYNOLDS (SBN 85276) CARA A. HOROWITZ (SBN 220701) NATURAL RESOURCES DEFENSE COUNCIL, INC. 1314 Second Street Santa Monica, California 90401 Telephone: (310) 434-2300 Facsimile: (310) 434-2399 Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU Plaintiffs, v. CARLOS M. GUTIERREZ, SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; WILLIAM HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; VICE ADMIRAL CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES DEPARTMENT OF THE NAVY; DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY; ADMIRAL MIKE MULLEN, CHIEF OF NAVAL OPERATIONS Defendants. Civil Action No. CV-07-4771-EDL NOTICE OF MOTION, AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Judge: Hon. Elizabeth Laporte Ctrm: E Hearing Date: December 18, 2007 Time: 9 a.m.

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TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES............................................................... 1 INTRODUCTION......................................................................................................................... 1 STATEMENT OF FACTS AND PROCEDURE ......................................................................... 3 I. II. III. I. II. IMPACTS OF ACTIVE SONAR ON MARINE LIFE .................................................... 3 THE COURT'S 2003 ORDER AND THE FIRST FIVE YEARS OF DEPLOYMENT ................................................................................................................ 6 THE NAVY'S NEW PROPOSAL AND NMFS'S 2007 FINAL RULE ......................... 7 STANDARD OF REVIEW FOR PRELIMINARY INJUNCTIVE RELIEF ............................................................................................................................. 9 PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.................................... 9 A. NMFS Has Failed to Comply with the Marine Mammal Protection Act ......................................................................................................................... 9 1. NMFS Has Failed to Prescribe Mitigation and Monitoring Measures to Effect the "Least Practicable Impact" on Marine Mammals .................................................................................... 10 a. b. c. Geographic Restrictions .............................................................. 10 Coastal Exclusion Zone............................................................... 12 Monitoring Requirements............................................................ 13

ARGUMENT ................................................................................................................................ 9

NMFS Has Failed to Ensure that the Impacts of LFA Will Be "Negligible." ...................................................................................... 15 NMFS Failed to Authorize the Lethal Take of Marine Mammals Despite the Potential for Such Effects.................................... 16 NMFS Violated the MMPA by Refusing to Submit Critical Information for Public Review................................................................ 18 The SEIS Fails to Consider All Reasonable Alternatives to the Proposed Deployment of LFA........................................................... 20 The SEIS Fails to Address or Inappropriately Rejects Mitigation Measures................................................................................ 23 The SEIS Fails to Adequately Consider All Reasonably Foreseeable Individual and Cumulative Impacts of LFA........................ 24 The 2007 Biological Opinions' Incidental Take Statement Fails To Specify the Amount or Extent of Take of Endangered and Threatened Species ....................................................... 26 NMFS's Biological Opinions Are Arbitrary and Capricious .................. 27

Plaintiffs are Likely to Succeed on Their NEPA Claims .................................... 20

NMFS Has Violated the Endangered Species Act .............................................. 26 1.

DEPLOYMENT OF LFA WITHOUT ADEQUATE MITIGATION WILL CAUSE IRREPARABLE INJURY ..................................................................... 27

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TABLE OF CONTENTS (continued) Page PLAINTIFFS RAISE SERIOUS QUESTIONS AND THE BALANCE OF HARM TIPS SHARPLY IN PLAINTIFFS' FAVOR .............................................. 29

CONCLUSION ........................................................................................................................... 30

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TABLE OF AUTHORITIES CASES Page(s) Ariz. Cattle Growers Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir. 2001)................................................................................................... 27 Churchill County v. Norton, 276 F.3d 1060 (9th Cir. 2001)................................................................................................... 21 Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115 (N.D. Cal. 2006)..................................................................................... 22 Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006)............................................................................................. 27, 29 Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1992)..................................................................................................... 20 Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995)............................................................................................... 20, 29 Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562 (9th Cir. 2000)....................................................................................................... 9 Kokechik Fishermen's Ass'n v. Fed'n of Japan Salmon Fisheries Coop. Ass'n, 839 F.2d 795 (D.C. Cir. 1988) ............................................................................................ 16, 17 Lands Council v. Martin, 479 F.3d 636 (9th Cir. 2007)....................................................................................................... 9 League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir. 2002)................................................................................................... 24 Makua v. Rumsfeld, 163 F. Supp. 2d 1202 (D. Haw. 2001) ................................................................................ 29, 30 Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722 (9th Cir. 2001)..................................................................................................... 28 Nat'l Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994)....................................................................................................... 9 Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998)................................................................................................... 23 NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003)..............................................................................passim NRDC v. U.S. Dep't of the Navy, 857 F. Supp. 734 (C.D. Cal. 1994), vacated by consent decree, 1994 U.S. Dist. LEXIS 21630 (C.D. Cal. May 5, 1994)............................................... 10, 12, 13
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NRDC v. U.S. Forest Serv., 421 F.3d 797 (9th Cir. 2005)..................................................................................................... 21 NRDC v. Winter, No. 8:07-cv-00335-FMC-FMOx, 2007 U.S. Dist. LEXIS 57909 (C.D. Cal. Aug. 7, 2007) .......................................................... 18 NRDC v. Winter, No. 07-56157, 2007 U.S. App. LEXIS 20965 (9th Cir. Aug. 31, 2007)................................... 30 Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082 (9th Cir. 2005)................................................................................................... 19 Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988)................................................................................................... 28 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................................ 23, 24 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006)................................................................................................... 30 Sierra Club v. U.S. Forest Serv., 843 F.2d 1190 (9th Cir. 1988)................................................................................................... 27 FEDERAL STATUTES AND RULES

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16 U.S.C. §§ 1361-1421............................................................................................................................... 2 § 1361(1) ..................................................................................................................................... 9 § 1361(3) ..................................................................................................................................... 9 § 1362(13) ................................................................................................................................... 9 § 1371(a).................................................................................................................................... 16 § 1371(a)(5)........................................................................................................................passim §§ 1531-1544............................................................................................................................... 3 § 1533 ........................................................................................................................................ 26 § 1536(a)(2)............................................................................................................................... 26 § 1538(a)(1)............................................................................................................................... 26 42 U.S.C. §§ 4321-4370............................................................................................................................... 3 40 C.F.R. § 1500.1 ..................................................................................................................................... 20 § 1502.1 ............................................................................................................................... 20, 22 § 1502.14 ................................................................................................................................... 20 § 1502.14(a)............................................................................................................................... 20 § 1502.14(f) ................................................................................................................... 20, 21, 26 § 1502.16(h) .............................................................................................................................. 20 § 1502 16(i) ............................................................................................................................... 20 § 1502.22(b) ........................................................................................................................ 21, 25 § 1508.7 ..................................................................................................................................... 25 § 1508.8(b) ................................................................................................................................ 20

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50 C.F.R. § 216.184(e)(3)-(4).................................................................................................................... 10 § 402.14(i) ................................................................................................................................. 26 67 Fed. Reg. 46,712 (July 16, 2002) ............................................................................................. 11 71 Fed. Reg. 56,968 (Sept. 28, 2006).............................................................................................. 8 72 Fed. Reg. 37,404 (July 9, 2007) ............................................................................................... 19 72 Fed. Reg. 46,846 (Aug. 21, 2007) .....................................................................................passim Local Civil Rule 7-2 ........................................................................................................................ 1 LEGISLATIVE MATERIALS H.R. Rep. No. 92-707 (1971), reprinted in 1972 U.S.C.C.A.N. 4144....................................................................................... 19

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NOTICE OF MOTION FOR PRELIMINARY INJUNCTION Please take notice that, in accordance with Civil Local Rule 7-2, Plaintiffs' motion for preliminary injunction is set for hearing at 9:00 a.m. on Tuesday, December 18, 2007, before the Honorable Elizabeth D. Laporte. Plaintiffs seek to enjoin defendants Carlos M. Gutierrez, Secretary of the United States Department of Commerce; National Marine Fisheries Service ("NMFS"); William Hogarth, Assistant Administrator for Fisheries of the National Oceanographic and Atmospheric Administration ("NOAA"); Vice Admiral Conrad C. Lautenbacher, Jr., Administrator of NOAA; United States Department of the Navy, Donald C. Winter, Secretary of the United States Department of the Navy ("Navy"); and Admiral Mike Mullen, Chief of Naval Operations (collectively "Defendants") from deployment or use of the Surveillance Towed Array Sensor System Low Frequency Active Sonar during the pendency of this action. MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION While supported by extensive evidence, this Motion is actually quite simple. 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. As this Court determined in 2003, the well-documented harms prevented by such measures outweigh any hardship imposed by mitigation requirements to which the Navy agreed and under which it is currently operating.1 Because, as set forth below, Plaintiffs are once more likely to prevail on the merits, this Motion should be granted. This action challenges NMFS's reauthorization of the LFA system in a rulemaking that looks startlingly similar to the one struck down by the Court in 2003 after nearly a year of litigaIn the interest of avoiding unnecessary litigation, the parties stipulated to allow operation of LFA pursuant to most of the terms of this Court's 2003 injunction, as modified in 2005 (the "Injunction"), through January 8, 2008, to allow this Motion to be heard. Plaintiffs seek an order from this Court restoring the Injunction pending full adjudication of the violations of law described herein.
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tion over this same system. In stunning disregard of prior rulings of this Court in that litigation, NMFS has once again approved five years of near-worldwide deployment of LFA for training, testing, and routine military operations in violation of federal law, and abandonment of commonsense mitigation measures previously required by this Court--measures necessary to reduce the risk of harm on a staggering geographic scale to marine species and their environment. And, despite an extraordinary level of public concern about the Navy's proposed use of this system, NMFS shut down public comment after only 15 days, thereafter issuing a rule that essentially ignored tens of thousands of comments to the agency from scientists, members of Congress and other elected officials, government agencies, and members of the public, including Plaintiffs. As this Court learned in earlier proceedings, and as set forth in more detail below, a single LFA source is capable of flooding hundreds of thousands of square miles of ocean with intense levels of sound. Thus, even the Navy has conceded that deployment of this system around the world will harm many thousands of marine mammals, including significant numbers of endangered species such as blue whales, humpback whales, sperm whales, and other species whose numbers are already depleted. Likely impacts range from significant disruptions in marine mammals' critical behaviors, including breeding, nursing, communicating, and foraging, to physical effects such as hearing loss, internal hemorrhaging, stranding, and death. Although this Court and other federal courts have consistently acknowledged the overwhelming scientific consensus of potential harm, the new five-year authorization rejects virtually all of the mitigation measures previously required by this Court to reduce the risk of harm, including avoidance of important habitat for endangered and vulnerable species, and violates numerous provisions of federal environmental law. Once again, NMFS violated the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361­1421, and disregarded the principles outlined in the Court's prior order by issuing a take permit authorizing near-global deployment that (1) fails to require mitigation, monitoring, and reporting needed to ensure "the least practicable impact" on marine mammals, (2) fails to ensure that the authorized take will have only a "negligible impact" on species or populations, (3) fails to prevent lethal takes in the face of evidence that they will likely occur, and (4) fails to
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include its analysis critical undisclosed information, which was, consequently, not subject to public review and comment.2 Once again, NMFS and the Navy violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321­4370, by adopting a supplemental environmental impact statement ("SEIS") that (1) fails to consider or sufficiently analyze appropriate mitigation measures (and goes so far as to abandon mitigation ordered by this Court in its prior permanent injunction), (2) fails to describe impartially and objectively the significant and foreseeable environmental impacts of LFA's deployment, and (3) fails to objectively evaluate all reasonable alternatives.3 Once again, NMFS violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531­ 1544, by (1) issuing a permit without first accurately assessing the numbers of affected animals and the consequences for their habitat, and (2) arbitrarily and capriciously concluding in the Biological Opinions ("BiOps") that LFA will not jeopardize the continued existence of endangered or threatened species.4 The Navy's current ESA violations are, in short, repetitions of deficiencies in their previous BiOps, which this Court expressly cited as violations requiring remand. STATEMENT OF FACTS AND PROCEDURE I. IMPACTS OF ACTIVE SONAR ON MARINE LIFE The active component of LFA is an array of eighteen loudspeakers lowered through a ship's hull into the ocean; sounding in tandem, they produce zones of focalized sound that can extend

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Under the terms of the Final Rule, the overwhelming majority of animals and habitat acknowledged even by the Navy as potentially affected by LFA's operation will go unmitigated, unmonitored, and unregulated. 72 Fed. Reg. 46,846 (Aug. 21, 2007) (Ex. 14). This regulatory failure violates the MMPA's explicit requirement that incidental take permits be supported by (1) mitigation "effecting the least practicable impact" on marine mammals, and (2) requirements for "monitoring and reporting" of any take that does occur. 3 As detailed infra, the SEIS repeatedly acknowledges, and then ignores, the pervasive lack of scientific support for the assumptions and extrapolations underlying its ultimate conclusion of "no significant impact." Further, the SEIS fails to provide a meaningful discussion of additional Offshore Biologically Important Areas or extended coastal exclusion zones, despite this Court's specific prior directive to the Navy to consider these additions. 4 Defendants' ESA violations are discussed in more detail below.
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hundreds of miles in all directions. Exs. 10 at 2-3, 4.2-33; 12 at B10, B19­20.5 Each speaker has a maximum output of 215 dB, but for purposes of calculating the intensity of the signal beyond a few hundred meters, where the vast majority of environmental impacts are expected to occur, the system is understood to function as one enormous acoustic source that produces as much as 240 dB of sound. See Ex. 10 at B-7; 52 at 4­5.6 The energy this represents is prodigious: according to data cited by the Navy, a single LFA unit generates as much acoustic energy through its six annual missions as 500 supertankers operating for 300 days apiece. See SEIS at 4-63 (Ex. 13); Ex. 48 at 111; Parsons Decl. ¶ 6. Marine mammals and other marine species depend on sound to navigate, find food, locate mates, avoid predators, and communicate. Ex. 48 at 101­02. As the Navy has acknowledged, flooding their habitat with man-made, high-intensity noise can interfere with these and other critical biological activities. Ex. 11 at 1. These effects range from mortality or serious injury caused by internal hemorrhaging (which may lead animals to strand or die at sea), to disorientation, stranding, temporary and permanent hearing loss, habitat abandonment, panic, chronic stress (which compromises breeding and can leave animals vulnerable to disease and other harms), and disruption and impairment of biologically essential activities, such as mating, nursing, and foraging. Exs. 27; 50; 51 (summarizing effects from variety of sources). Although the Navy's research into the immediately observable impacts of its LFA technology on large whales was extremely limited in duration, scope, and exposure level (see, e.g., Exs. 10 at O-054; 54 at 2), it nonetheless demonstrated the system's ability to interfere with whale communication and breeding behavior, even at moderate intensities. Exs. 52; 53. New studies conducted in the period since the parties were last before this Court confirm that a variety of low- and mid-frequency sounds impact a wide range of protected species at levels well below 150 dB. E.g., Exs. 55­58; 60; 61; 62 (studies of noise impacts from ships, airguns,

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Citations to exhibits to the Declaration of Sarah Schindler are identified by number only (e.g., "Ex. 3"). All other declarations are identified by last name of the declarant. 6 Decibels ("dB") are a logarithmic measurement, such that an increase of 10 decibels is equivalent to a tenfold increase in acoustic intensity. Ex. 10 at B-6.
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and alarms). Indeed, certain species, such as harbor porpoises, appear to respond dramatically to some signals not far above the threshold of their hearing. Ex. 58. In addition, a number of recent studies have suggested or documented how even subtle changes in behavior can result in cumulative, wide-scale effects on foraging and other essential activities. E.g., Exs. 56; 59; 62; 63. The Navy estimates that levels of 165 dB will cause a "significant change in . . . biologically important behavior" in half of the animals exposed to LFA sonar--levels that may occur as far as 35 miles from the source. 72 Fed. Reg. at 46,850. This extraordinary reach has raised serious concerns in the international scientific community. Ex. 49 at 1 ("Statement of Concern" signed by internationally prominent scientists). Since 2003, scientific consensus has confirmed the link between mid-frequency sonar and mortalities of beaked whales and other deep-diving species not studied in the Navy's 1997 Scientific Research Program despite concerns expressed at the time. See Ex. 54 at 2. Mass strandings and mortalities of whales have now been documented in the Bahamas, the Canary Islands, Hawaii, Spain, Greece, Alaska, Madeira, the U.S. Virgin Islands, and other coastal areas. Exs. 27­38; 41. Such incidents led the Scientific Committee of the International Whaling Commission--representing more than 100 of the world's leading whale biologists--to conclude that evidence associating mid-frequency sonar with beaked whale strandings is "very convincing and appears overwhelming." Ex. 27, Annex K at 9. Low-frequency sources have been implicated in two stranding events, and NMFS scientists have expressed strong concern that lowfrequency sources may produce effects similar to those caused by mid-frequency sounds. Exs. 35­37; 48 at 121; 47. The published evidence also shows that sonar causes severe, debilitating, and potentially lethal injuries at sea. Exs. 31 at 453­54; 43 at 182 (conclusion of Marine Mammal Commission expert panel). Beaked whales in sonar-related strandings suffer physical trauma, including hemorrhaging around the brain, ears, and other tissues and organs: an array of symptoms resembling those of severe decompression sickness, or "the bends." Exs. 28 at 11­16; 31 at 446­ 55; 32 at 575; 38 at 22­28; 41 at 27­29. Such injuries would harm marine mammals regardless of whether they strand and are discovered (Exs. 31 at 453­54; 43 at 182), meaning, as NMFS has
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conceded, that injuries and mortalities would only rarely be documented. Exs. 87 at 142, 146, 151; 27, Annex K at 7. In the Bahamas, the best available evidence indicates that beaked whales are likely to have been exposed to 150­60 dB of sound, for roughly 1 to 2.5 minutes. Ex. 48 at 120. Acknowledging the heightened concern, NMFS (together with the Navy), despite allowing LFA deployment without significant mitigation, began a multi-year study on the behavioral impacts of both mid-frequency sonar and LFA on beaked whales. 72 Fed. Reg. at 46,861, 46,865. II. THE COURT'S 2003 ORDER AND THE FIRST FIVE YEARS OF DEPLOYMENT In 2002, Plaintiffs filed suit in this Court alleging that both the Navy and NMFS had violated NEPA, ESA, and the MMPA in approving deployment of the LFA system. On October 31, 2002, on a motion for preliminary injunction, and again on August 26, 2003, on a motion for summary judgment, the Court ruled that Defendants had violated multiple provisions of each statute. NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003). Among other things, the Court held that (1) NMFS violated the MMPA by authorizing take of more than "small numbers" of marine mammals, by permitting an activity that was not limited to a "specified geographic region," and by failing to require adequate mitigation and monitoring of impacts, (2) both NMFS and the Navy violated NEPA by failing to consider a full set of reasonable alternatives in their Environmental Impact Statement ("EIS") and by failing to take a hard look at impacts on fish, and (3) NMFS violated ESA by failing to consider the "best available science," and by failing to specify the extent of species "take" in its supplemental BiOp. Id. at 1146­47, 1152­53, 1179­80. Additional mitigation was found by the Court to be necessary under the MMPA not only to satisfy the Act's mitigation provision, but also to ensure that impacts on protected species were "negligible." Id. at 1159. Rather than impose a complete ban on LFA training, the Court, on balancing the harms, decided to issue a carefully tailored injunction that would restrict LFA's use in areas particularly rich in marine life, while allowing the Navy to test and train in a variety of ocean conditions. Id. at 1191. On October 8, 2003, the parties filed a joint stipulation that restricted the Navy's training to an area of the western Pacific Ocean, with a coastal exclusion zone of at least 30 (and
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in some areas, 60) nautical miles ("nm"), and additional offshore exclusion zones for the protection of important habitat. Ex. 3 at 3. The stipulation was the basis of injunctive relief ordered by the Court on October 14.7 Id. In fall 2003, through provisions placed in a "must-pass" defense authorization bill, and over objections by many in the Senate, Congress amended the MMPA with respect to "military readiness activities" such as LFA. E.g., Ex. 101 at S14489 (statement of Sen. Olympia Snowe). The amendments, inter alia, exempted such activities from two of the MMPA's permitting provisions--the "small numbers" and "specified geographic region" requirements. 16 U.S.C. §§ 1371(a)(5)(A)(ii), (a)(5)(F). Accordingly, the Court amended its judgment the following year to dismiss Plaintiffs' claims based on those two provisions. Ex. 5 at 2­3. The Court declined, however, to vacate or amend any portion of its original opinion, and the legislative amendments left unaffected several of the Court's holdings under the MMPA, including its holdings regarding additional required mitigation measures, as well as its NEPA and ESA holdings in their entirety. See id.8 III. THE NAVY'S NEW PROPOSAL AND NMFS'S 2007 FINAL RULE The Court's Injunction governed LFA testing and training during its first five years of operation. By the fifth year, with the Court's mitigation measures in place, the Navy's shipboard observers had spotted only three animals in the vicinity of the two LFA vessels; its passive acoustic monitoring system had detected none and the Navy's active system had recorded only 71 hits, with no visual confirmation--all of which raises real questions about the efficacy of the Navy's monitoring in real-world conditions. Ex. 20 at 19; Baird Decl. ¶¶ 7­10; see also Wang Decl. ¶ 9 (state of stranding networks in region). The Navy has conducted no further field tests of its active acoustic system to validate its claims. 72 Fed. Reg. at 46,874.

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In 2005, the parties negotiated amendments to the 2003 stipulated order pursuant to the Navy's operational needs. Hereinafter, references to the stipulation should be read to include the 2005 amendments. 8 Defendants would later file an appeal, challenging the Court's ESA ruling that NMFS had failed to estimate takes of listed species in its Incidental Take Statement. On July 24, 2006, the Ninth Circuit dismissed Defendants' appeal for lack of standing.
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On November 10, 2005, the Navy issued a draft SEIS, ostensibly intended to address the concerns expressed by the Court two years earlier. Notwithstanding the Court's emphasis on the limiting training to low-impact areas, the proposed deployment map was virtually identical to the Navy's 2002 proposal. The Navy's preferred alternative opens up to 75% of the world's oceans to LFA exercises, adds virtually no new exclusion areas, and reduces the coastal "standoff zone" from at least 30 to 12 nautical miles. SEIS at ES-1, 2-15 to 2-16. The Navy also abandoned all of the mitigation measures imposed by the Injunction, and either removed from consideration or rejected the alternatives urged by the Court. Id. at 4-79 to 4-81, 5-1 to 5-5. Ignoring considerable new information showing the vulnerability of beaked whales to anthropogenic sound, the Navy also ruled out any possibility of serious injury or mortality of those species (id. at 4-56); and it considered cumulative impacts only on a global scale, disregarding potential effects, either alone or in combination with mid-frequency sonar, at the sites where exercises occur, sometimes repeatedly. Id. at 4-62 to 4-65. The Navy finalized the SEIS in April 2007, and issued a record of decision on August 15. Meanwhile, on July 9, 2007, NMFS issued a Proposed Rule uncritically adopting the Navy's analysis, rejecting measures that had successfully mitigated impacts of the LFA system for the past five years. Once again, NMFS proposed to allow the annual taking of as much as 12 percent of any species or stock. Although the comment period on five-year take permits customarily extends at least 30 to 45 days, and although NMFS had promised the public 45 days on any proposed regulation (71 Fed. Reg. 56,968 (Sept. 28, 2006)), it set an exceptionally brief comment period of only 15 days. NMFS's truncated public comment period spurred written objections not only from Plaintiffs, but also from the scientific community, more than 30 members of Congress, and tens of thousands of citizens. E.g., Exs. 23­25. On August 16, 2007, NMFS issued its Final Rule, substantially unchanged from its proposal the month before. Its letters of authorization ("LOAs"), allowing the largely unmitigated operation of the LFA system

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for the next 12 months, and Biological Opinions were issued concurrently. Exs. 15­17; 19. On September 17, 2007, Plaintiffs filed this action.9 ARGUMENT I. STANDARD OF REVIEW FOR PRELIMINARY INJUNCTIVE RELIEF Preliminary injunctive relief is appropriate under the MMPA and NEPA if Plaintiffs can "demonstrate either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [their] favor." Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) (citation and internal quotations omitted); Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562, 565 (9th Cir. 2000). However, a less stringent test for preliminary injunction applies to ESA claims. "In cases involving the ESA, Congress removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties' competing interests." Nat'l Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1511 (9th Cir. 1994). Thus, Plaintiffs need only show a reasonable likelihood of a future statutory violation to satisfy the test for a preliminary injunction under ESA. Id. II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS A. NMFS Has Failed to Comply with the Marine Mammal Protection Act.

The MMPA was enacted in 1972 pursuant to congressional findings that "certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities," and, further, that "there is inadequate knowledge of the ecology and population dynamics of [these species]." 16 U.S.C. §§ 1361(1), (3). To prevent the further depletion of these stocks, Congress established a moratorium on the "take" -- that is, the harassing, hunting, capturing, or killing -- of marine mammals. 16 U.S.C. § 1362(13). NMFS
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The parties have agreed that, until the Court issues its decision on the instant motion, but no later than January 8, 2008, the Navy will temporarily operate LFA under the conditions specified in the expired Injunction, with the exception that it may come within the established coastal exclusion zone (but no closer than 12 nm from shore) under certain defined conditions. The exception does not apply to any routine testing or training activities.
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may grant limited exemptions from the moratorium only if, using the best available science, it determines that the takes would have no more than a "negligible impact" on marine mammal populations or stocks, and prescribes methods and means of effecting the "least practicable impact" on them. 16 U.S.C. § 1371(a)(5)(D). 1. NMFS Has Failed to Prescribe Mitigation and Monitoring Measures to Effect the "Least Practicable Impact" on Marine Mammals.

When NMFS issues an incidental take permit, it is required both to prescribe mitigation "effecting the least practicable adverse impact" on marine mammals, and to set "requirements pertaining to the monitoring and reporting" of any take that does occur. 16 U.S.C. § 1371(a)(5)(A)(i)(II). These duties are not trivial. Their purpose is (1) to ensure that the permitted take has a negligible impact on affected species, and (2) even where the requirements for a permit have been met, to "reduce as much as practicable the taking of marine mammals." See NRDC v. U.S. Dep't of the Navy, 857 F. Supp. 734, 738 (C.D. Cal. 1994), vacated by consent decree, 1994 U.S. Dist. LEXIS 21630 (C.D. Cal. May 5, 1994).10 Not only has NMFS failed to meet its burden under the law, it has repeated some of the same violations that the Court identified in its 2003 Order. a. Geographic Restrictions

On summary judgment, the Court held that NMFS violated the MMPA by failing to put important marine mammal habitat off limits, in addition to habitat contained within the coastal exclusion. 279 F. Supp. 2d at 1161­64. Since 2003, NMFS has made virtually no effort to redress this critical deficiency in its permit. Indeed, out of the Navy's vast deployment area, an area that encompasses most of the world's species and populations of marine mammals, NMFS chose to add only two new sites to its 2002 exclusion list, one of which is a U.S. National Marine
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Notably, the National Defense Authorization Act ("NDAA") did not alter the Act's "least practicable adverse impact" standard for mitigation. 16 U.S.C. § 1371(a)(5)(A)(ii). Rather, it set a procedural condition requiring NMFS to consult with the Defense Department on readiness impacts before making a determination; and it clarified that the determination should "include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity" (id.), factors that, indeed, the Court had taken into account in its 2003 Order. 279 F. Supp. 2d at 1159­64.
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Sanctuary and neither of which falls within the northwest Pacific biomes where the Navy has been operating for the last five years. 67 Fed. Reg. 46,712, 46,787 (July 16, 2002); 72 Fed. Reg. at 46,892.11 Instead of defining avoidance areas, NMFS has opted again for a petition process that improperly assigns the burden of identifying them to the public after deployment begins. 72 Fed. Reg. at 46,876, 46,878­79. This relinquishment of NMFS's statutory duty was rejected by the Court in 2003. 279 F. Supp. 2d at 1163. NMFS attempts to justify its inaction by suggesting that it has identified all areas in the world that "are currently appropriate for designation." 72 Fed. Reg. at 46,879. This position is not supportable, as indicated by the agency's inadequate responses to comments. For example, the agency refuses to exclude any other established Marine Protected Areas ("MPAs") on the grounds that most MPAs worldwide fall within 12 nautical miles of the coast; yet it provides no rationale for failing to add those MPAs that lie wholly or partly in offshore waters. 72 Fed. Reg. at 46,878; Ex. 88; Hoyt Decl. ¶ 5 (citing, inter alia, the Galápagos Marine Resources Reserve (Ecuador), the Great Barrier Reef Marine Park (Australia), and the new Marine National Monument in the Northwest Hawaiian Islands). Similarly, NMFS completely fails to consider excluding habitat that has been recommended for marine mammal protection by other scientific bodies. E.g., Ex. 89 at 55­56 (areas proposed by the ACCOBAMS Scientific Committee for protection of discrete Mediterranean populations of beaked whales and other species); see also Hoyt Decl. ¶¶ 9-10. Further, it dismisses areas specifically cited in the Court's opinion (279 F. Supp. 2d at 1162-63), on the grounds that they are "large ocean expanses," without any consideration of whether avoidance of some portion or, indeed, all of those areas would be practicable. 72 Fed. Reg. at 46,878 (rejecting Emperor Seamount Chain and southern portion of Oyashio/Kuroshio area). And there is no indication that NMFS seriously considered any of the myriad existing sources of marine mammal data and habitat modeling recommended by Plaintiffs and the Marine Mammal Commission. E.g., Ex. 9 at 11­12; SEIS at G-008 at 4; Exs. 84, 90­92;
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Though NMFS's rule ostensibly adds six locations to the list of Offshore Biologically Important Areas ("OBIAs"), four of these areas were already excluded under a separate provision of the 2002 rule (50 C.F.R. § 216.184(e)(3)­(4)), and thus are not additional mitigations at all.
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Parsons Decl. ¶¶ 11­12; Whitehead Decl. ¶¶ 10­11; Calambokidis Decl. ¶ 9; see also 279 F. Supp. 2d at 1163 (noting that NMFS "has the ability to identify which areas and which seasons to avoid"). Accordingly, on this critical issue, NMFS has again violated the law. 279 F. Supp. 2d at 1161-64; Navy, 857 F. Supp. at 738.12 b. Coastal Exclusion Zone

NMFS has also refused to extend the Navy's coastal exclusion zone beyond 12 nautical miles from shore, reverting to the scheme it authorized before the Court's Injunction was issued. 279 F. Supp. 2d at 1164. In doing so, the agency relied on the Navy's conclusion that positioning the LFA system farther from shore, under the one alternative it considered (a generic 25 nm exclusion), would decrease take of coastal species while increasing take of offshore species. 72 Fed. Reg. at 46,872. NMFS's decision was unlawful. 16 U.S.C. § 1371(a)(5)(A). First, NMFS violated the MMPA by failing to consider the full range of practicable options. The first proceeding established that, in most situations, the Navy can effectively test and train with LFA at distances from 43 to 200 nautical miles from the coast. 279 F. Supp. 2d at 1162. No new information has been presented to suggest otherwise. See 72 Fed. Reg. at 46,872. Yet NMFS did not consider the full range of practicable measures, as Plaintiffs have urged (Ex. 9 at 10), including exclusions linked to bathymetry or distance from the shelf break that previously had been suggested by NMFS staff. Ex. 96 (suggesting dual criterion of "12 nm from the shore or the distance to the 300 m isobath"). NMFS's discussion of its own East Coast exclusion zone validates the environmental benefits of a stand-off distance based on the shelf break. 72 Fed. Reg. at 46,878. Nowhere in the final rule does NMFS explain why such a measure would be operationally impracticable, or why it could not be imposed at least where it is practicable. See id. NMFS's failure to consider the full range of practicable options violates the

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In addition, NMFS has replied to calls to enlarge the buffer zone around its few exclusion areas by increasing that zone by a single kilometer, without suggesting why a further stand-off distance from areas like the Monterey Bay National Marine Sanctuary would not be practicable. 72 Fed. Reg. at 46,879, 46,889. For this reason, too, it has failed to prescribe measures effecting the least practicable adverse impact on marine mammals.
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MMPA. Navy, 857 F. Supp. at 738­39 (holding NMFS siting decision invalid for failing to adequately consider full range of practicable offshore distances). Second, in deciding to deny greater protection to indisputably rich coastal habitat, NMFS failed to consider multiple relevant factors. Id. at 739. Although the Court strongly emphasized the importance of minimizing impacts on endangered species (279 F. Supp. 2d at 1162, 1188, 1191), NMFS did not consider how a narrower exclusion zone would affect the disproportionately high number of listed marine mammal species and populations that tend to occupy near-shore waters along the shelf. See 72 Fed. Reg. at 46,872; Whitehead Decl. ¶¶ 13­15 (observing that near-shore species account for roughly 50% of all marine mammals listed under ESA and 60% of all species appearing on the International Union for the Conservation of Nature's Red List). Nor did NMFS consider the greater impacts that a narrow exclusion zone would have on marine protected areas, despite its acknowledgment that most MPAs occur largely within 12 nm from shore. 72 Fed. Reg. at 46,878 (using this point as justification for not considering any additional MPAs). Finally, NMFS did not consider the additional risks to marine mammals that operations close to shore entail, given, inter alia, the greater difficulty of nearcoastal animals to escape a sound field that, according to the Navy's analysis (SEIS at 4-74), would cover thousands of square kilometers at high levels of risk. 72 Fed. Reg. at 46,872; Whitehead Decl. ¶ 16. NMFS's failure to consider these factors was arbitrary and capricious and did not ensure the "least practicable impact" on marine mammals. Navy, 857 F. Supp. at 739 (rejecting as arbitrary and capricious decision against siting explosives tests further offshore, when NMFS made decision without properly weighing "trade-offs" in mitigation).13 c. Monitoring Requirements

In 2003, this Court granted Plaintiffs' motion "with respect to the adequacy of defendants' . . . monitoring under the MMPA." 279 F. Supp. 2d at 1164. Because they have not changed their monitoring requirements, Defendants continue to act arbitrarily and capriciously.
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Even with respect to the factors it does consider, the Navy's analysis (which NMFS adopts) is capricious in its assumptions about species distribution, resulting in a broad underestimate of impacts on shelf species. Whitehead Decl. ¶ 14.
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In particular, the Court examined Defendants' failure to require the use of aerial surveys or observational vessels for LFA sonar missions operated close to shore. Id. While Defendants "evaluate" the use of small boats and aircraft for pre-operational surveys in the SEIS (SEIS at 5-6 to 5-8), they do not indicate why such monitoring is not required or provided in optimal conditions (e.g., high visibility, proximity to aerial assets, amenable boating conditions); they also fail to consider the viability of such monitoring close to shore (where certain alleged drawbacks may be diminished), on the grounds that the Court did not define the term "close to shore."14 Further, they fail to recognize that the Deputy Secretary of Defense required aerial monitoring (conditions permitting) for certain mid-frequency active sonar activities in all of the Navy's training ranges and operations areas. Ex. 79, Add. at 1, 3. Defendants' refusal to use such monitoring, even in optimal conditions on their own training ranges, is arbitrary and capricious. Defendants' cursory dismissal of additional monitoring options also demonstrates their arbitrary and capricious decision-making. For example, Plaintiffs asked NMFS to consider passive acoustic monitoring using existing acoustic nodes and other external platforms, including passive gliders. Ex. 9 at 16.15 However, in response, NMFS summarily stated that certain acoustic nodes are "degraded and not real-time" and conclusorily determined that other external platforms "would only be vessels of opportunity," rendering them impracticable. 72 Fed. Reg. at 46,877. NMFS's cavalier consideration of these monitoring options is insufficient as it failed even to consider their potential usefulness in determining if an area has denser concentrations of marine mammals, information that could be critical for planning LFA exercises and monitoring their impact. Ex. 100 (passive gliders).

14

Defendants conducted their "evaluation" in the context of the MMPA amendment addressing "military readiness activities." SEIS at 5­6. However, to the extent that any monitoring addressed by Defendants falls under section 101(5)(A)(i)(II)(bb) of the MMPA ("requirements pertaining to the monitoring and reporting of such taking"), the NDAA amendment is inapplicable as its reach is limited to the mitigation requirement contained in section 101(5)(A)(i)(II)(aa). 15 Passive gliders are robots that travel through the ocean collecting data on whale calls that are radioed back to the glider's base. Ex. 100.
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2.

NMFS Has Failed to Ensure that the Impacts of LFA Will Be "Negligible."

Under the MMPA, NMFS may issue a take permit only if it first finds that the authorized taking will have only a "negligible impact" on marine mammal species or populations. 16 U.S.C. §§ 1371(a)(5)(A), (D). Remarkably, NMFS's new rule sets the same high ceiling on take that the Court, in 2003, found would sometimes exceed the negligible impact threshold if additional mitigation were not prescribed. 279 F. Supp. 2d at 1159. Having failed to require such additional mitigation, NMFS has again violated the MMPA. In its 2007 rule, NMFS again permits the Navy to take up to 12% of any and all marine mammal species and populations on an annual basis. 72 Fed. Reg. at 46,886. As the Court recognized, the harassment of 12% of a small population of marine mammals (for example, the critically endangered population of western gray whales, of which little more than 100 individuals remain), could affect the reproduction or survival of the population--hardly a "negligible impact." 279 F. Supp. 2d at 1159; see also Vorontsova Decl. ¶¶ 11­12 (noting additional data and increased concern since 2002 over impacts of intense noise on western gray whales), Ex. 62; Wang Decl. ¶¶ 5­8. The Navy has offered no new information to alter that conclusion; indeed, its apparent reuse of some of the same training areas only underscores the potential for repeated annual takes at this impermissible level. Ex. 18 at 48­49 (showing repeated use of mission areas). By permitting such takes "without more restrictions on deploying LFA in sensitive areas and during sensitive periods" (279 F. Supp. 2d at 1159), NMFS has violated the MMPA. Furthermore, NMFS has significantly underestimated the potential for population effects by using abundance data that--for many species--do not correspond to actual marine mammal populations. Borrowing from the Navy, its method for each of the representative areas it models is to (1) aggregate most species into broad groupings, such as "pelagic dolphins" and "blackfish and killer whales," and (2) calculate abundance for those groups of species across what is usually a vast area, assuming that more localized populations do not exist. 72 Fed. Reg. at 46,883­84;

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Ex. 10 at 4.2-15 to 4.2-18.16 The numbers that result from such a method are inconsistent with NMFS's own prior practice and with the available scientific evidence. For example, its take numbers for Hawaii--an area that accounts for three of the Navy's 31 representative sites--are contradicted not only by the significantly lower, species-specific abundance estimates that both agencies have used in other authorization processes, but also by the extensive scientific record that has emerged since 2001, indicating that many populations of cetaceans around Hawaii are small, island-associated, and genetically isolated from others in the tropical Pacific. Exs. 10 at 4.2-42 to 43; 12 at D-3 to D-9 (LFA); 102 at 38,713 (RIMPAC exercise); 86; 93; 94; see also Baird Decl. ¶¶ 14-17 (concluding that take of such species could well exceed 12% if LFA is used around Hawaii).17 Its use of these data in calculating the "upper bound" of expected impacts (72 Fed. Reg. at 46,883­84) is arbitrary and capricious.18 3. NMFS Failed to Authorize the Lethal Take of Marine Mammals Despite the Potential for Such Effects.

The heart of the MMPA is a moratorium on the take of marine mammals, to which exceptions are allowed through the authorization process. 16 U.S.C. §§ 1371(a), (a)(5). It has long been established that, under the moratorium, NMFS cannot selectively authorize only some of the marine mammal takes resulting from an activity, while letting other foreseeable takes occur unaddressed. Kokechik Fishermen's Ass'n v. Fed'n of Japan Salmon Fisheries Coop. Ass'n, 839 F.2d 795, 801­02 (D.C. Cir. 1988). Yet, here, NMFS has essentially done just that--it has
16

Because the scope of the authorization is so broad, NMFS bases its negligible impact determination for the five-year rule on the Navy's modeling of 31 representative scenarios. 72 Fed. Reg. at 46,883­84. 17 In the case of Hawaiian bottlenose dolphins, for example, research indicates the presence of an island-associated population as small as 141 animals, and NMFS has previously used an abundance estimate of 3,263 to calculate take in other authorizations; the agencies' current LFA analysis, by comparison, assumes the "pelagic dolphin" stock around Hawaii is 10.7 million animals in size and calculates the take percentage for bottlenose dolphins on that basis. Exs. 94 (report to NMFS); 102 at 38,713 (prior MMPA authorization); 10 at 4.2-17 (LFA); Baird Decl. ¶ 16. 18 NMFS claims that the Navy's past practice indicates that impacts will not exceed 12% annually (72 Fed. Reg. at 46,852); but this nominal schedule, which is based on a particular group of sites in the northwest Pacific that the Navy used pursuant to this Court's Injunction and required mitigation (id.), does not reflect the scope of the final rule, or the Navy's stated intention (SEIS at P-1) to train in completely different regions of the world.
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authorized only the harassment of large numbers of marine mammals, even though there also exists a foreseeable risk of life-threatening injury and mortality. 72 Fed. Reg. at 46,891; Ex. 19 at ¶ 3(d); Kokechik, 839 F.2d at 800. As discussed above, the evidence linking some forms of anthropogenic sound to whale strandings and mortalities and injuries at sea has expanded dramatically since 2003, and Defendants' rationale for discounting any similar risk from LFA has repeatedly shifted. See supra at 5­6, 8. Significantly, the two justifications that NMFS now offers for its position are inconsistent with the available evidence and with the opinions of its own scientists. First, NMFS claims that LFA training would not cause mortalities or serious injuries because the Navy would steer clear of three conditions that were present in some--but not all-- sonar-related strandings: the presence of deep water close to land, the channeling of sound through surface ducts, and the use of mid-frequency sources. 72 Fed. Reg. at 46,886. But these distinctions dissolve on examination. Given the reduced 12 nm coastal exclusion that NMFS approved, LFA ships would train no farther from shores with deep water than the sonar vessels implicated in the Bahamas, Hawaii, and other stranding events; and LFA is likewise intended to exploit surface ducts, particularly in high latitudes. Exs. 28 at 30­33; 33 at 32; 41 at 28; 72 Fed. Reg. at 46,849; see also Soto Decl. ¶¶ 7­8. The supposition that low-frequency sources cannot induce the same effects as mid-frequency sonar has not been accepted by NMFS's own scientists, who have expressed strong concern over beaked whale strandings that have involved such sources. Ex. 47; see also Soto Decl. ¶¶ 5­11, 14; Weilgart Decl. ¶ 8. NMFS's position is further belied by its nearly unique exclusion of the Gully as an OBIA for its population of northern bottlenose whales (a beaked whale species), and by its current conduct of major at-sea research into the effects of LFA sonar on beaked whales. 72 Fed. Reg. at 46,861, 46,865, 46,887; see also SEIS at G-005 (Gully). Second, NMFS rules out the potential for mortalities or serious injury on the grounds that no strandings have as yet been associated with the system's use. 72 Fed. Reg. at 46,858, 46,886. Yet the LFA system has only been used to date with the Court's mitigation measures in place, and NMFS itself does not believe that the effects of the LFA system would be known. According to
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NMFS's mandated stock assessments, injuries and mortalities for Pacific stocks of beaked whales "would rarely be documented, due to the remote nature of many of [the Navy's] activities and the low probability that an injured or dead whale would strand." Ex. 87 at 142, 146, 151. On the basis of this and other evidence, a court recently rejected a similar claim by Defendants that no strandings have occurred off southern California, despite the Navy's extensive use of midfrequency sonar there. Ex. 105 at 8 (Order, NRDC v. Winter, No. 8:07-cv-00335-FMC-FMOx, 2007 U.S. Dist. LEXIS 57909 (C.D. Cal. Aug. 7, 2007)). The chances that such effects would be detected and reported in the present case are, if anything, considerably lower. Wang Decl. ¶ 9. In addition, NMFS has failed to authorize lethal injury and mortality even in circumstances where the Navy would use LFA and mid-frequency sonar concurrently, as was the case in at least one recent major exercise. Ex. 98 at 43,253. LFA and mid-frequency sonar, deployed together, were precisely the combination associated with the acknowledged mass mortality of beaked whales off Greece. Ex. 35 at 2-30. Under these conditions at the very least, the potential for mortality is foreseeable. See Kokechik, 839 F.2d at 798, 800 (finding it foreseeable that fishery would take northern sea lions even though only one take had been reported in seven years and NMFS considered the probability of any additional take remote); Soto Decl. ¶ 11. 4. NMFS Violated the MMPA by Refusing to Submit Critical Information for Public Review.

NMFS has also failed to comply with the unequivocal notice and public comment requirements of the MMPA. Section 101(a)(5)(A) of the MMPA requires NMFS to provide notice and an opportunity for public comment before making its impact findings and prescribing regulations for the incidental taking of marine mammals. See 16 U.S.C. § 1371(a)(5)(A)(i) (the Secretary shall allow incidental taking "after notice . . . and opportunity for public comment") (emphasis added). Nonetheless, NMFS--over the objections of both Plaintiffs and the Marine Mammal Commission--made findings and prescriptions without providing full notice or opportunity for public comment. See 72 Fed. Reg. at 46,846, 46,852 (cmt. 11).

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19

Specifically, NMFS had information regarding the Navy's choice of precise operating areas, which could impact its overall analysis, yet failed to address that information in its Proposed Rule or in the SEIS. This failure precluded the public from reviewing and commenting on the exact kind of information the MMPA was enacted to elicit. See H.R. Rep. No. 92-707, at 8 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4151 ("The public is invited and encouraged to participate fully in the agency decision-making process. The agencies are further required to provide full information to interested members of the public on what the implications of the program and of any proposed agency actions may be."). Here, NMFS received information regarding the Navy's choice of specific operating areas, and presumably the marine mammals potentially affected during the planned operations, at least three months before issuing its proposed rule. See Ex. 19 (LOAs at § 3(b)) ("This Authorization . . . is valid . . . in accordance with boundary conditions described in the Navy's March 30, 2007, mission intention letter. . . .").19 As NMFS relies upon just this type of geography-specific and species-specific information to justify its overall findings and mitigation prescriptions in the Proposed Rule (e.g., 72 Fed. Reg. 37,404, 37,411 (July 9, 2007)), Final Rule (e.g., 72 Fed. Reg. at 46,886) and SEIS (e.g., 4-43 to 4-51), its failure to disclose these new operating areas and species potentially affected, while simultaneously analyzing them in preparation for issuing the 2007­08 LOAs, was arbitrary and capricious. See Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1094 (9t