No. 07-1239
In the Supreme Court of the United States
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., PETITIONERS
v.
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNTIED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
PAUL D. CLEMENT
Solicitor General
Counsel of Record
RONALD J. TENPAS
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
RYAN D. NELSON
Deputy Assistant Attorney
General
ANTHONY A. YANG
Assistant to the Solicitor
General
ANDREW C. MERGEN
MICHAEL R. EITEL
LUTHER L. HAJEK
ALLEN M. BRABENDER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
DANIEL J. DELL'ORTO
Acting General Counsel
Department of Defense
FRANK R. JIMENEZ
General Counsel
CRAIG D. JENSEN
J. PAGE TURNEY
Attorneys
Department of the Navy
DAVID K. BOWSHER
Acting General Counsel
Department of Commerce
JANE C. LUXTON
General Counsel
MARY BETH WARD
JOEL LA BISSONNIERE
Attorneys
National Oceanic and
Atmospheric Admin.
EDWARD A. BOLING
General Counsel
Council on Envt'l Quality
Washington, D.C.
APPENDIX A
2. UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 08-55054
D.C. No. CV-07-00335-FMC
NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE
INTERNATIONAL FUND FOR ANIMAL WELFARE; CETACEAN SOCIETY INTERNATIONAL; LEAGUE
FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU, PLAINTIFFS-APPELLEES
CALIFORNIA COASTAL COMMISSION,
INTERVENOR-APPELLEE
v.
DONALD C. WINTER, SECRETARY OF THE
NAVY; UNITED STATES DEPARTMENT OF THE NAVY; CARLOS M. GUTIERREZ, SECRETARY
OF THE DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICES; WILLIAM
HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC
AND ATMOSPHERIC ADMINISTRA TION; CONRAD C. LAUTENBACHER, JR., ADMINI STRATOR
OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION,
DEFENDANTS-APPELLANTS
Appeal from the United States District Court
for the Central District of California
Florence Marie Cooper, District Judge, Presiding
Argued and Submitted: Feb. 27, 2008
Pasadena, California
[Filed: Feb. 29, 2008]
OPINION
Before: B. FLETCHER, D.W. NELSON, and REINHARDT, Circuit Judges.
Opinion by Judge B. FLETCHER, Circuit Judge:
Defendants Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, National Marine Fisheries Service (NMFS),1 and two Administrators of the National Oceanographic and At mospheric Administration (NOAA) appeal the district court's January 3, 2008 order, as modified on January 10, 2008, granting a motion for a preliminary injunction and imposing certain conditions on the completion of the remaining eight of fourteen large training exercises scheduled to be conducted by the Navy's Third Fleet in the waters off the coast of southern California between February 2007 and January 2009 (the "SOCAL exer cises").2 The motion was filed by plaintiffs Natural Re sources Defense Council, Inc., International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau (collectively "NRDC" or "plain tiffs"), who are concerned that the Navy's use of high-intensity, mid-frequency active sonar ("MFA so nar") in the SOCAL exercises will cause serious harm to various species of marine mammal present in the south ern California waters, and by extension, to plaintiffs themselves.
In granting NRDC's motion for a preliminary injunc tion, the district court found that NRDC had demon strated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by failing to pre pare an Environmental Impact Statement ("EIS"). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1451 et seq., by submitting a consistency de termination to the California Coastal Commission ("CCC") that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the California Coastal Management Program ("CCMP").
On January 15, 2008, the Council on Environmental Quality ("CEQ") purported to approve "alternative ar rangements," pursuant to 40 C.F.R. § 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the requirements of the CZMA the Navy's use of MFA sonar in the SOCAL exercises.
On February 4, 2008, the district court upheld its injunction on the basis of plaintiffs' NEPA claim, con cluding CEQ's action was invalid and therefore not enti tled to deference. The district court also expressed con cerns about the constitutionality of the President's CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), that Congress cannot vest review of the decisions of Article III courts in offi cials of the Executive Branch. However, the court de clined to decide the constitutionality of the CZMA ex emption because it concluded the preliminary injunc- tion was firmly supported on NEPA grounds.3 The dis trict court also found that plaintiffs had demonstrated a possibility of irreparable harm and that the balance of hardships tipped in plaintiffs' favor. Natural Res. Def. Council v. Winter, - F. Supp. 2d -, 2008 WL 314192 (C.D. Cal. Feb. 4, 2008) ("Feb. 4, 2008 Dist. Ct. Order").
For the reasons stated below, we uphold the district court's preliminary injunction.
I. Procedural History
Plaintiffs commenced this action on March 22, 2007. On August 7, 2007, the district court granted in part NRDC's motion for a preliminary injunction and en joined the Navy from conducting the then remaining eleven SOCAL exercises.4 After appealing the district court's preliminary injunction order,5 the Navy filed an emergency motion with this court for a stay of the order while its appeal was pending. On August 31, 2007, a di vided motions panel granted the Navy's motion on the grounds that the district court had failed to consider the "public interest" in having a trained and effective Navy and had failed to explain why an unconditional injunc tion on the SOCAL exercises, rather than an injunction conditioning the conduct of those exercises on the adop tion of additional mitigation measures, was appropriate. NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007).
On November 13, 2007, after hearing oral argument, we filed an order concluding that NRDC had met the necessary burden of proof to demonstrate that some form of preliminary injunctive relief was appropriate. Accordingly, we vacated the stay of the preliminary in junction order effective upon the Navy's completion of its fifth SOCAL exercise, which was in progress at the time of oral argument. However, we also concluded that an injunction conditioning continuation of the exercises on the Navy's adoption of narrowly tailored mitigation measures would be more appropriate than a total injunc tion. Accordingly, we remanded the case for the district court to enter a modified preliminary injunction contain ing appropriate mitigating measures. NRDC v. Winter, 508 F.3d 885 (9th Cir. 2007).
On January 3, 2008, the district court, after having received briefing from the parties and having toured the destroyer USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibility of the par ties' proposed mitigation measures, issued a new prelim inary injunction that allowed the Navy to conduct the remaining SOCAL exercises provided that it employ certain measures intended to mitigate the impact of the Navy's use of MFA sonar on the environment. On Janu ary 9, 2008, the Navy applied for a stay pending appeal and requested relief from the district court by January 14, 2008.
On January 10, 2008, in response to arguments raised in the Navy's stay application, the district court modified the preliminary injunction by narrowing the mitigation measures contained in the January 3, 2008 order. The Navy filed a notice of appeal the following day. The district court denied the Navy's stay applica tion on January 14, 2008.
On the evening of January 15, 2008, the Navy filed an emergency motion with this court requesting vacatur of the preliminary injunction or, alternatively, a partial stay of the preliminary injunction pending a decision on its appeal by our court. The Navy's motion was based in part on two developments that occurred on the same day that the motion was filed. First, the President of the United States, pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the provisions of the CZMA the Navy's use of MFA sonar during the SOCAL exercises, finding that such use of MFA sonar is "essential to national se curity" and in the "paramount interest of the United States." Second, the CEQ, finding "emergency circum stances," purported to approve "alternative arrange ments" to accommodate those emergency circumstances, pursuant to 40 C.F.R. § 1506.11. It permitted the Navy to follow the prescribed arrangements to continue its exercises pending completion of the Navy's EIS. The Navy subsequently adopted the alternative arrange ments and determined that it would comply with them. See Decision Memorandum Accepting Alternative Ar rangements for the U.S. Navy's Southern California Operating Area Composite Training Unit Exercises and Joint Task Force Exercises Scheduled To Occur Be tween Today and January 2009, 73 Fed. Reg. 4189 (Jan. 24, 2008).
On January 16, 2008, we remanded the matter to the district court to consider in the first instance the effect, if any, of these developments on its preliminary injunc tion order. On January 17, 2008, the district court is sued a temporary partial stay of its preliminary injunc tion order pending the court's consideration of the Navy's ex parte application to vacate the preliminary injunction. The Navy subsequently conducted its sixth SOCAL exercise.
On February 4, 2008, following briefing by the par ties and oral argument, the district court denied the Navy's application to vacate the preliminary injunction and lifted the temporary partial stay. In its published order, the district court held in relevant part that CEQ's approval of "alternative arrangements" was invalid be cause there are no "emergency circumstances" within the meaning of 40 C.F.R. § 1506.11. Feb. 4, 2008 Dist. Ct. Order at 13-25. Thus, the district court left in place the original preliminary injunction. The Navy filed a notice of appeal two days later.
On February 8, 2008, we issued a sua sponte order expediting the appeal of the district court's order im posing the preliminary injunction. On February 15, 2008, the Navy filed an emergency motion for a partial stay of the preliminary injunction pending our consider ation of the appeal on the ground that the injunction would interfere with the Navy's conduct of two exercises in March, 2008. On February 19, 2008, we denied the Navy's motion for a partial stay in light of our order expediting the appeal, which set oral argument for Wednesday, February 27, 2008. We now affirm the dis trict court's order imposing the preliminary injunction.
II. Factual Background
A. The SOCAL Exercises and the Effect of MFA
Sonar on Marine Mammals
The scheduled SOCAL exercises consist of seven Composite Training Unit Exercises ("COMPTUEX"), which last three to four weeks each, and seven Joint Tactical Force Exercises ("JTFEX"), which last approx imately ten days each. The exercises, which involve the use of multiple surface ships, aircraft and submarines, are part of the "integrated" training phase of the Navy's Fleet Response Training Plan, in which individual naval units-ships, submarines and aviation squadrons-learn and demonstrate skills as members of a strike group.6 Declaration of Captain Martin N. May ("May decl.) ¶ 6. In a COMPTUEX exercise a strike group must demon strate that it is capable of operating in a "complicated threat-based scenario environment that simulates real world situations." Id. In a JTFEX exercise, which fol lows the COMPTUEX exercise and typically includes other Department of Defense services and Allied Forces, the focus is on "mission planning and strategy and on the orchestration of integrated maneuvers, com munication and coordination." Id. ¶ 7. Upon completion of the integrated training phase the Fleet Commander is able to certify that a strike group is ready for deploy ment. Id.
According to the Navy, the ability to execute anti- submarine warfare ("ASW") is critical to a Commander's certification of a strike group. Id. Improving ASW is the Pacific Fleet's top "war-fighting" priority because of the proliferation of extremely quiet diesel electric sub marines throughout the world.7 Id. ¶ 11; Dec. 14, 2007 Declaration of Rear Admiral John M. Bird ("Bird Decl") ¶ 16. In turn, an important part of ASW is the use of active sonar, a technology which the Navy deems abso lutely necessary to detect today's extremely quiet sub marines. The type of active sonar, the use of which NRDC challenges, is mid-frequency active sonar; other categories of active sonar are low-frequency active sonar and high-frequency active sonar.8
Active sonar involves a vessel or other sonar source emitting a loud noise underwater and then listening for whether the noise comes back to the source, indicating that the noise may have bounced off the hull of a previ ously undetected submarine. According to the Navy, active sonar has two important advantages over passive sonar, which merely involves listening for noise made by submarines themselves: active sonar gives both the bearing and the distance of the target submarine, while passive sonar gives only the bearing;9 and active sonar allows the Navy to target submarines that emit sound at levels below those of the surrounding marine environ ment. Bird decl. ¶ 9. Accordingly, the Navy has con cluded that in certain environments, including shallow coastal waters where ambient noise levels are high, MFA sonar allows better detection of quiet submarines than passive sonar. May decl. ¶¶ 9, 14.
According to the Navy, personnel using MFA sonar must train with it regularly, under realistic conditions, and in a variety of situations. May decl. ¶ 10. The Navy therefore trains with MFA sonar in the ASW exercises that constitute an important component of the SOCAL exercises.
The SOCAL exercises are conducted in the Navy's training ranges off the coast of southern California ("the Southern California Operating Area"). This area is lo cated in biologically diverse waters. At least thirty- seven species of marine mammals are found there, with the most common being various species of dolphin and whale, as well as the California sea lion. Nine of those species are listed as threatened or endangered under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq.: the blue whale, fin whale, humpback whale, Northern Pacific right whale, sei whale, sperm whale, sea otter, Stellar sea lion, and Guadalupe fur seal. In addition, up to eight species of beaked whale are found in the Southern California Operating Area. A study sub mitted by NRDC classifies the California coastal waters as a "key area" for beaked whales because over 25% of all beaked whale species are found there.10
The Navy acknowledges in its EA that MFA sonar may affect both the physiology and behavior of marine mammals. Exposure to "very high" acoustic energy lev els may impair the functioning of marine mammals' vi sual system, vestibular system and internal organs, and may cause injury to their lungs and intestines. However, the primary physiological effects of MFA sonar are on marine mammals' auditory system: very high sound lev els may rupture the eardrum or damage small bones in the middle ear, but even exposure to lower levels of sound may cause permanent or temporary hearing loss.
Several studies suggest that active sonar may also cause a form of decompression sickness (or the "bends") in marine mammals by inducing growth of gas bubbles in their blood stream or tissues, potentially leading to fatal hemorrhaging, lesions and emboli in the organs. How ever, the Navy disputes the conclusions of these studies and it has submitted a declaration by an expert on ma rine mammal auditory systems stating that decompres sion sickness requires super-saturation of tissue with gas and that such super-saturation has not been shown to occur in marine mammals. See Declaration of Dr. Darlene R. Ketten ("Ketten decl.") ¶¶ 12-16.
The Navy also acknowledges that the use of MFA sonar may overtly disrupt the normal behavior of marine mammals even if it does not affect their physiology. While the Navy acknowledges that active sonar may cause behavioral responses such as attempting to avoid the site of sound exposure, swimming erratically, slug gish behavior, tail slapping, "jaw popping," and aggres sive behavior, those responses were observed in studies using trained animals held in captivity.11 NOAA con- cluded in 2006 that studies of marine mammals in the wild "strongly suggest" that the use of sonar at levels lower than those found to produce behavioral effects in the tests of captive animals can result in "profound" be havioral alterations, including changes in feeding, diving, and social behavior. In a February 9, 2007 Biological Opinion concerning the SOCAL exercises,12 the NMFS found that acoustic exposures can impair marine mam mals' foraging ability and their ability to detect preda tors or communicate. The NMFS cited studies finding that noise has caused whales to move away from their feeding and mating grounds and migration routes, and to change their calls.
As the record demonstrates, substantial evidence sug gests that beaked whales are particularly vulnerable to MFA sonar. While it is not settled what causes this vul nerability,13 it is clear that use of MFA sonar may lead to the stranding of beaked whales. A 2004 Navy-sponsored study concluded that "the evidence of sonar causation is . . . completely convincing and that therefore there is a serious issue of how best to avoid/minimize future beach ing events." Likewise, the Standing Working Group on Environmental Concerns of the International Whaling Commission's Scientific Committee concluded in 2004 that "[t]he weight of accumulated evidence now associ ates mid-frequency, military sonar with atypical beaked whale mass strandings," and found that "[t]his evidence is very convincing and appears overwhelming."
A 2006 study cited as possible explanations for the association between MFA sonar and strandings of beaked whales that (1) beaked whales may swim into shallow waters to avoid the sonar sound and strand if they are unable to navigate back to deeper waters, and (2) that behavioral responses to sonar may lead to tissue damage that in turn leads to stranding. The study ex plains that while a stranding need not be fatal, stranded marine mammals have died from cardiovascular collapse due to hyperthermia or from the stress associated with the stranding.
Several mass strandings of marine mammals- mostly, though not exclusively, beaked whales-have been associated with the use of active sonar. Another 2006 study describes a stranding of twelve beaked whales in Greece in 1996, a stranding of seventeen marine mam mals (including fourteen beaked whales) in the Bahamas in 2000, and a stranding of fourteen beaked whales in the Canary Islands in 2002,14 all of which occurred at the same time and place as the naval use of MFA sonar. The study also recounts a stranding of three beaked whales in the Madeira Islands in 2000, which coincided with NATO's conduct of naval exercises,15 as well as a strand ing of two beaked whales in the Gulf of California, Mex ico, in 2002, which coincided with the conduct of seismic surveys involving, among other acoustic sources, a multi- beam, high-frequency sonar. In addition, a 2006 report by the NMFS recounts that 150 to 200 melon-head whales stranded in a Hawaiian bay in 2004, at the same time and place as the Navy's use of active sonar as part of its biennial Rim of the Pacific (RIMPAC) exercise.16
Necropsies of the dead whales involved in the Baha mas, Canary Islands and Madeira Islands strandings revealed hemorrhages in and around the ears, in the cra nial spaces, and in other parts of the body such as the jaw fat, lungs and kidneys. In a joint report, the Navy and NOAA concluded that the injuries to the whales that stranded in the Bahamas constituted "some sort of acous tic or impulse trauma," and that the Navy's use of MFA sonar was the "most plausible" source of that trauma. The International Whaling Commission agreed that the hemorrhages in the inner ears and cranial spaces were consistent with "direct acoustic effects."
According to a biologist on whose declaration NRDC relies, the use of MFA sonar in the Bahamas may also have had a serious effect on the local population of beaked whales. See Declaration of Dr. Hal Whitehead. The biologist cites a study showing that no Cuvier's beaked whales were sighted for twenty months following the stranding in the Bahamas, despite an increased sur vey effort. Id. ¶ 8. He also cited studies showing that of the Cuvier's beaked whales that had been photo-identi fied over a nine-year period, only a few have been sighted since the stranding in 2000. Id.
With respect to the stranding of the melon-head whales in Hawaii, the NMFS issued a report concluding that "[w]hile causation of this stranding event may never be unequivocally determined, we consider the active so nar transmissions . . . a plausible, if not likely, contributing factor in what may have been a confluence of events."
Undoubtedly, many training exercises involving the use of active sonar occur around the world without ma rine mammal strandings being observed or reported. However, a declaration by a NOAA scientist submitted by the Navy acknowledges that it is generally poorly un derstood in which combinations of physical and biological circumstances such strandings are likely to occur. Decla ration of Brandon L. Southall ¶ 19. The declaration also acknowledges that whether marine mammal strandings are observed depends on the extent to which people are looking for them. Id.
B. The Navy's EA and the Predicted Harm to Marine Mammals in the Southern California Waters
In February 2007, the Navy issued an Environmental Assessment ("EA") for the SOCAL exercises pursuant to NEPA. See 40 C.F.R. § 1501.3. The EA set forth the Navy's estimate of how much harm the use of MFA sonar would inflict on marine mammals, classifying the harm as either "Level A harassment" or "Level B harassment."
Level A harassment is an act that physically injures the marine mammal. Level A harassment refers to an exposure to MFA sonar that "injures or has the signifi cant potential to injure a marine mammal or marine mammal stock in the wild." Injury is defined as any de struction or loss of any biological tissues, and includes permanent hearing loss.
Level B harassment is an act that disrupts the behav ior of a marine mammal. Level B harassment refers to an exposure to MFA sonar that "disturbs or is likely to disturb a marine mammal or marine mammal stock by causing disruption of natural behavioral patterns includ ing, but not limited to, migration, surfacing, nursing, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered." Notably, Level B harassment may also, though it need not, include tempo rary hearing loss.
The behavioral effects that result from Level B ha rassment may have severe consequences. According to the Biological Opinion of the NMFS, acoustic exposures can result in the death of a marine mammal by impairing its foraging or its ability to detect predators or communi cate by increasing stress or by disrupting important physiological events.
In its EA, the Navy classified predicted sonar expo sures as either Level A harassments or Level B harass ments based on the sound intensity to which a marine mammal would be exposed. For cetaceans-which in clude whales and dolphins and which are the focus of NRDC's challenge to the SOCAL exercises-the Navy applied the following "impact thresholds": it classified as Level A harassments exposures to sonar levels of 215 decibels (dB) or greater, as Level B harassments includ ing temporary hearing loss exposures to sonar levels be tween 195 dB and 215 dB, and as Level B harassments not including temporary hearing loss exposures to sonar levels between 173 dB and 195 dB.17
Significantly, the Navy acknowledged in the EA that it does not know whether the above impact thresholds apply to beaked whales. Recognizing the recent beaked whale strandings and the fact that the exact causes of those strandings are unknown, the Navy concluded that "separate, meaningful impact thresholds cannot be de rived specifically for beaked whales." Put simply, the Navy did not know whether exposure of a beaked whale to an acoustic energy of less than 215 dB might never theless cause permanent injury to the whale. Accord ingly, the Navy took a "conservative approach" and counted all predicted Level B exposures of beaked whales as non-lethal Level A exposures. Thus, the Navy treated every predicted exposure of a beaked whale to a sonar level of 173 dB or greater as causing physical in jury including permanent hearing loss.
In its EA, the Navy estimated that over the course of the SOCAL exercises, the use of MFA sonar would result in 564 instances of Level A harassment to marine mam mals, 548 of which would be to beaked whales.18 Specifi cally, the following species would be subjected to Level A harassments: Cuvier's beaked whales in 436 instances; Ziphiid beaked whales in 104 instances; common dolphins in 16 instances; and Baird's beaked whales in 8 in stances.19
The Navy also estimated that the use of MFA sonar would result in 8,160 exposures to Level B harassment with temporary hearing loss and 161,368 exposures to Level B harassment without hearing loss. Eight marine mammal species, including one endangered species, would be exposed to over 1,000 incidents of Level B ha rassment: 145,444 exposures to common dolphins; 6,460 exposures to Northern Pacific right whale dolphins; 4,292 exposures to Risso's dolphins; 4,100 exposures to Pacific white-sided dolphins, 3,252 exposures to striped dol phins; 1,830 exposures to pygmy sperm whales (endan gered); 1,094 exposures to Pantropical spotted dolphins; and 1,092 exposures to bottlenose dolphins.
In light of the harm that marine mammals are ex pected to suffer as a result of the SOCAL exercises, plaintiffs contend that they and their members living in southern California will be harmed. For example, plain tiff Jean-Michel Cousteau alleges that as an environmen tal enthusiast and film-maker his ability to enjoy and educate others about the marine environment in southern California will be impaired if the harmful effects of MFA sonar on marine mammals are not sufficiently mitigated. Other plaintiffs make similar allegations.
The Navy stated in the EA that it "assumed" that its methodology for estimating harm overestimated the ef fects of MFA sonar on marine mammals, citing the lack of observed effects during several past major exercises. However, the EA also maintained that the methodology used was based on the "best available science," and it provided no indication of the extent to which its method ology overestimated the effects of MFA sonar. In fact, there is at least some evidence that the Navy's methodol ogy may have underestimated the effects of MFA sonar on marine mammals. NRDC has submitted declarations of several scientists who cite evidence that extraordinary behavior in marine mammals, including stranding by beaked whales, may be caused by acoustic energy levels below the Navy's bottom impact threshold of 173 dB. See Declaration of Dr. David E. Bain ¶¶ 6-11; Declaration of Dr. Edward C.M. Parsons ¶ 4; Declaration of Dr. Linda Weilgart ("Weilgart decl.") ¶ 9.
While NRDC has presented no evidence that marine mammals have actually been harmed by the Navy's use of MFA sonar in the Southern California Operating Area over the past forty years,20 the record indicates that be cause harm to marine mammals is difficult to detect, ex cept in cases of stranding, marine mammals may none theless be harmed by the Navy's use of MFA sonar in the Southern California Operating Area.
In the Navy's January 2007 "after action report" fol lowing the completion of the first three SOCAL exer cises, the Navy acknowledged that "it is difficult to as sess the potential exposure to sonar for species not ob served." Indeed, the "after action reports" for the last eight COMPTUEX and JTFEX exercises in the South ern California Operating Area reveal that in less than 15% of the instances in which marine mammals were observed, MFA sonar was in fact being used.21 Thus, the Navy's reports show that relatively few marine mammals have been observed while MFA sonar was being used.
Beaked whales are particularly difficult to observe. According to a 2004 Navy-sponsored report, "[t]heir very low broaching profile and the limited time they spend at the surface have conspired to make them resistant to easy surveying." The report notes that beaked whales are "very deep divers" and spend an estimated 80% of their time at considerable depths. According to the EA, Cuvier's and Mesoplodont beaked whales make dives of up to 87 minutes.22 An international workshop on beaked whales organized by the U.S. Marine Mammal Commis sion noted that only 1 in 50 beaked whales would be de tected in naval mitigation surveys using shipboard visual observation, even assuming ideal observation conditions.
Correspondingly, injuries to beaked whales are also difficult to observe. In a January 2007 memorandum, the NMFS concluded that "injuries or mortalities . . . would rarely be documented, due to the remote nature of many [naval activities] and the low probability that an injured or dead beaked whale would strand." While the parties have presented conflicting declarations on the issue whether whale carcasses resurface for some time after they initially sink, compare Weilgart decl. ¶ 7 with Ketten decl. ¶ 17, the likelihood that a whale carcass would be detected if it does not strand logically depends on how well the waters are searched for such carcasses. A 2007 study by NMFS researchers suggests that the likelihood of detecting dead beaked whales is low, as it concluded that, given current biological survey efforts, in 90% of beaked whale stocks a decline in population of 50% over a 15-year period would go undetected as a de cline at all. Non-fatal injuries not leading to stranding would be even more difficult to detect because no beaked whale carcass would surface.
Moreover, it is not clear from the record whether in the past forty years the waters of southern California have been exposed to MFA sonar at the same power level and frequency and for the same duration as they are now. First, the Navy has provided no information about the frequency with which exercises involving the use of MFA sonar were conducted prior to 1992.
Second, while the Navy states that "Navy data going back to 1992 shows that the number of yearly exercises in the last 15 years and amount of [MFA sonar] use in SOCAL waters was greater in the past than it is now, showing a slight reduction trend," Bird decl. ¶ 18, that statement is too vague to allow conclusions to be drawn from it. The statement says nothing about the type of exercises or their duration over the years, and it does not make clear whether "in SOCAL waters" refers only to sonar use or also to the number of yearly exercises. Fur ther, the statement does not specify whether "amount of [MFA sonar] use" refers to sonar use in each exercise or to total sonar use in a year, nor does it make clear whether that phrase refers to the number of times sonar was employed or to the aggregate duration of sonar transmission. The Navy produces no data in the record to clarify its statement.
Third, while the EA states that an average of seven JTFEX or COMPTUEX exercises are conducted each year, which is consistent with fourteen SOCAL exercises to be conducted over two years, the EA does not state the starting date after which that average has been main tained.
Fourth, while the Navy points out that its cur rently-used SQS-53 sonar system transmits sonar at the same power levels and frequencies as the SQS-26 system that the Navy used in earlier years, it acknowledges that in a new class of destroyers the SQS-53 system has re placed the SQS-56 system. Bird decl. ¶ 18. As the Bio logical Opinion of the NMFS makes clear, the SQS-56 system transmits MFA sonar at a lower power level and at different frequencies than the SQS-53 system.23 Thus, the record suggests that with the new class of destroyers the average MFA sonar transmission may have increased in power level and changed in frequency. The Navy does not cite evidence to the contrary.
Finally, we can draw no conclusion from the state ment in the EA that "output from active sonar systems used in [the Southern California Operating Area] and throughout the Navy has remained largely the same for the past 30 years." The EA does not explain whether "output" refers to frequency, sound intensity level, amount of time used during an exercise, or amount of time used per year.24 Even assuming the statement re fers to the use of the sonar systems during an exercise or during the year, it is unclear whether it refers to total use in the Southern California Operating Area or rather to total use by the Navy in all its training areas com bined.
In any event, the Navy's estimate that its use of MFA sonar in the SOCAL exercises will expose marine mam mals to 564 instances of Level A harassment and nearly 170,000 instances of Level B harassment clearly indicates that at least some substantial harm will likely occur in the Southern California Operating Area.
C. The Mitigation Measures Employed by the Navy and Those Imposed by the District Court
While the Navy adopted a number of mitigation mea sures intended to reduce the harm caused by the use of MFA sonar in the SOCAL exercises, the district court concluded that those measures were inadequate both to cure the Navy's likely NEPA violation and to avoid the possibility of irreparable harm to NRDC.
Accordingly, following our November 13, 2007 re mand order, the district court established additional, narrowly-tailored mitigation measures which the Navy would have to employ during the remaining SOCAL ex ercises. To place these mitigation measures in context, we explain what mitigation measures the Navy has previ ously employed and is currently employing in the SOCAL exercises.
In June 2006, shortly before the Navy was to conduct that year's "Rim of the Pacific" exercise off the coast of Hawaii (the "2006 RIMPAC exercise"), plaintiffs sued the Navy and the same co-defendants here,25 seeking to enjoin the Navy from using MFA sonar in that exercise. Following the district court's grant of NRDC's motion for a temporary restraining order, the parties entered into a settlement agreement that allowed the Navy to use MFA sonar in the 2006 RIMPAC exercise but only if it employed certain mitigation measures in addition to those already imposed by the NMFS in its June 27, 2006 Incidental Harassment Authorization and by the Depart ment of Defense in its June 30, 2006 National Defense Exemption ("NDE I").26
The mitigation measures the Navy adopted for the 2006 RIMPAC exercise include operating MFA sonar at the lowest practicable level not to exceed 235 dB except for short periods to meet tactical training objectives, and using at least one lookout dedicated to the detection of marine mammals, as well as three non-dedicated look outs, on each ship operating MFA sonar and requiring them to report sightings of marine mammals.
The following mitigation measures employed during the 2006 RIMPAC exercise are of particular importance here:
o The designation of "safety zones" in which:
- the MFA sonar level is reduced by 6 dB if a marine mammal is detected within 1,000 me ters of the sonar dome (located in the bow of the vessel);27
- the MFA sonar level is reduced by 10 dB if a marine mammal is detected within 500 meters of the sonar dome; and
- the use of MFA sonar is stopped if a marine mammal is detected within 200 meters of the sonar dome.28
o In conditions of strong surface ducting-where sonar sound carries over a greater distance than would otherwise be the case-the safety zones will be expanded such that the MFA sonar level is re duced by 6 dB if a marine mammal is detected within 2,000 meters of the sonar dome and by 10 dB if one is detected within 1,000 meters of the dome, and that the use of MFA sonar is stopped if a marine mammal is detected within 500 meters of the sonar dome.
o In conditions of low visibility-i.e., whenever a safety zone is not fully visible-additional detec tion measures will be used, such as infrared or enhanced passive acoustic detection. If detection of marine mammals is not possible out to the lim its of the safety zone, the sonar level will be re duced as if a marine mammal is present immedi ately beyond the extent of detection.
o With the exception of three specific "choke point" exercises, MFA sonar will not be operated in con stricted channels or canyon-like areas or within 25 kilometers of the 200 meter isobath.29
o During the three choke point exercises, additional mitigation measures will be employed, including two hours of pre-exercise monitoring for marine mammals.
Following the 2006 RIMPAC exercise, the Navy is sued an "after action report" in which it reported that it had used MFA sonar for a total of 472 hours during the 2006 RIMPAC exercise and that the mitigation measures resulted in a loss of 8 hours of MFA sonar use.30 Dec. 7, 2006 Rim of the Pacific After Action Report at 9. Al though no unusual behavior of marine mammals had been observed, the Navy reported that of the estimated 256 marine mammals potentially affected by the 472 hours of MFA sonar use, approximately 100 of them had been precluded from exposure to MFA sonar as a result of the mitigation measures.
In October 2006, in anticipation of the SOCAL exer cises, the Navy submitted a consistency determination to the CCC, seeking the CCC's concurrence in the Navy's determination that the SOCAL exercises were consistent to the maximum extent possible with the enforceable policies of the CCMP, which, for purposes of the CZMA, are contained in the California Coastal Act. See Cal. Pub. Res. Code § 30008.31 The CCC disagreed with the Navy that the use of MFA sonar in the SOCAL exercises would not affect California's coastal resources. Accordingly, the CCC conditioned its concurrence in the Navy's con sistency determination on the Navy adopting fourteen mitigation measures, several of which the Navy had al ready employed in the 2006 RIMPAC exercise. The Navy agreed to adopt only four of the CCC's mea sures-all but one of which do not actually prevent the use of MFA sonar from harming marine mammals32-and it refused to adopt the remaining ten measures:
o The measures used in the 2006 RIMPAC exercise for reducing sonar levels during conditions of low visibility;
o The measures used in the 2006 RIMPAC exercise in "choke points;"
o Increasing the outer safety zone to 2 kilometers even in conditions not involving strong surface ducting;33
o Reducing sonar level by 6 dB during strong sur face ducting conditions;
o Using two marine mammal observers who have received NOAA-approved training for surveillance during use of MFA sonar;
o Requiring aerial monitoring off San Clemente Is land throughout exercises involving MFA sonar;
o Monitoring for marine mammals for 30 minutes prior to commencing use of MFA sonar;
o Avoiding training in areas with known high con centrations of marine mammals; and
o Locating and scheduling training outside the mi gration season for the grey whale.34
In January 2007, the Deputy Secretary of Defense issued, pursuant to 17 U.S.C. § 1371(f), a second National Defense Exemption ("NDE II"), which exempted from the requirements of the MMPA all the Navy's military readiness activities employing MFA sonar for the dura tion of the SOCAL exercises. The Deputy Secretary of Defense conditioned the exemption on the Navy adopting a number of mitigation measures, which already had been standard operating procedure in the Navy's ASW exercises since 2004. As the EA makes clear, it is those mitigation measures, and only those measures, which the Navy adopted for the SOCAL exercises.
While the Navy describes the adopted mitigation measures as consisting of 29 separate measures, the dis trict court found that, in effect, they consist of only four basic measures: "(1) personnel training (providing ap proved Marine Species Awareness Training materials for lookouts and commanding officers), (2) on-deck lookouts, armed with binoculars or night vision goggles, to watch for marine mammals, (3) operating procedures to ensure that any sightings of marine mammals are communicated up the chain of command, so that MFA sonar is powered down [(i.e., sonar power is reduced)] when a marine mammal approaches within 1,000 yards, 500 yards, and 'secured' (shut-down) at 200 yards,35 and (4) coordination and reporting procedures." Feb. 4, 2008 Dist. Ct. Order at 6 n.7. Our review of the EA reveals at most two addi tional basic measures: that passive sonar will be used to detect marine mammals and that Navy aircraft partici pating in exercises will conduct surveillance when doing so does not interfere with safety or the "accomplishment of primary operational duties."36 Notably, the mea- sures adopted by the Navy do not include the ten afore mentioned mitigation measures recommended by the CCC, such as increasing the outer safety zone to 2 kilo meters, monitoring for marine mammals at least 30 min utes before commencing MFA sonar use, and conducting the SOCAL exercises outside the grey whale's migratory season and outside areas with high concentrations of ma rine mammals. Moreover, the adopted measures do not include the 2006 RIMPAC measures requiring that MFA sonar not be used in constricted channels and canyon-like areas or within 25 kilometers of the 200 meter isobath. Nor do they include the requirement, imposed by NDE I for non-RIMPAC exercises in 2006, that MFA sonar not be used within 12 nautical miles from the coastline.
Following our November 13, 2007 remand order, the district court set out to determine what narrowly-tai lored mitigation measures should be imposed for the re maining SOCAL exercises. In the words of the district court, NRDC proposed "sweeping geographic exclusions" to the Navy's use of MFA sonar, including a 25 nautical mile coastal exclusion, locating exercises to the maximum extent possible in waters deeper than 1,500 meters, and an exclusion in the Catalina Basin, the Westfall seamount, and the Cortez and Tanner Banks. Jan. 3, 2008 Dist. Ct. Order at 13 n.6. The Navy also proposed sev eral mitigation measures. See id.
After reviewing the parties' briefs and taking a Navy-guided tour of the USS Milius, the district court imposed six mitigation measures in addition to those al ready required by NDE II: (1) the Navy shall suspend use of MFA sonar when a marine mammal is detected within 2,200 yards from the sonar source, except where the marine mammal is a dolphin or a porpoise and it ap pears that the mammal is intentionally following the so nar-emitting naval vessel in order to play in or ride the vessel's bow wave; (2) the Navy shall reduce the MFA sonar level by 6 dB when significant surface ducting con ditions are detected;37 (3) the Navy shall not use MFA sonar within 12 nautical miles from the California coast line; (4) the Navy shall monitor, including by aircraft, for the presence of marine mammals for 60 minutes before employing MFA sonar, shall utilize two dedicated, NOAA -and NMF-trained lookouts at all times when MFA sonar is being used, shall employ passive acoustic moni toring to supplement visual detection of the presence of marine mammals, and shall use aircraft participating in the training exercises to monitor for marine mammals for the duration of the exercises when MFA sonar is being used; (5) Navy helicopters shall monitor for marine mam mals for 10 minutes before employing active dipping so nar; and (6) the Navy shall refrain from using MFA so nar in the Catalina Basin between the Santa Catalina and San Clemente Islands because ingress and egress to the basin are restricted and the basin has a high density of marine mammals. See Jan. 10, 2008 Dist. Ct. Order at 1-5.
The district court rejected many of the geographic exclusions proposed by NRDC in favor of a 2,200-yard safety zone, accepted the Navy's representations that the bathymetry off the shores of southern California pres ents unique training opportunities, see Feb. 4, 2008 Dist. Ct. Order at 7, and declined to limit the use of sonar at night or in conditions of low visibility despite the Navy's voluntarily adoption of such limitations for the 2006 RIMPAC exercise, see Jan. 3, 2008 Dist. Ct. Order at 7-8.
The Navy takes issue only with the first two of the mitigation measures imposed by the district court, namely the 2,200 yard "shutdown zone" and the "power- down" requirement during significant surface ducting conditions. Specifically, the Navy argues that those two mitigation measures tip the balance of hardships in its favor and are contrary to the public interest.
In support of its argument the Navy has submitted declarations by high-ranking officers attesting to the adverse consequences that those measures will have on the Navy's military readiness. For example, Vice Admi ral Locklear, Commander of the U.S. Third Fleet, opines that "imposing a 2200-yard shutdown zone will have crip pling implications on Navy's ability to conduct realistic pre-deployment ASW training employing MFA sonar" and will "jeopardize the training and readiness of U.S. THIRD Fleet [strike groups]." Declaration of Vice Ad miral Samuel J. Locklear. ¶¶ 9, 13. Likewise, Rear Ad miral Bird opines that "[t]raining in surface ducting con ditions is critical to effective training." Bird decl. ¶ 52. In their classified declarations, Admiral Gary Roughead and Rear Admiral Ted N. Branch opine that both the 2200-yard shutdown zone and the power-down require ment in significant surface ducting conditions will create an unacceptable risk with respect to the Navy's ability to certify its strike groups as combat ready and will thus profoundly affect national security.
III. Standards of Review
Our review of a district court's grant of a preliminary injunction is "very deferential." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 794 (9th Cir. 2005). We do not reverse the district court unless it "relie[s] on an erroneous legal premise or abuse[s] its discretion." Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752 (9th Cir. 1982) (internal citations omitted). A court abuses its discretion if it bases its deci sion on an erroneous legal standard or clearly erroneous findings of fact. Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006) ("Earth Island II").
A district court may grant a preliminary injunction if one of two sets of criteria are met. "Under the 'tradi tional' criteria, a plaintiff must show (1) a strong likeli hood of success on the merits, (2) the possibility of irrep arable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). Alternatively, a court may grant the injunction if the plaintiff demonstrates either a combination of proba ble success on the merits and the possibility of irrepara ble injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Freecycle Network, Inc. v. Oey, 505 F.3d 898, 902 (9th Cir. 2007); see also Earth Island II, 442 F.3d at 1158.
IV. Discussion
A. Likelihood of Success on the Merits
11. 1. Effect of CEQ's Alternative Arrangements for
NEPA Compliance
On January 15, 2008 CEQ purported to approve "al ternative arrangements" for the Navy to continue its use of MFA sonar while complying with NEPA, reasoning that "emergency circumstances" prevented normal com pliance. CEQ's authority to grant such relief derives from 40 C.F.R. § 1506.11, which provides in full:
Where emergency circumstances make it necessary to take an action with significant environmental im pact without observing the provisions of these regula tions, the Federal agency taking the action should consult with the Council about alternative arrange ments. Agencies and the Council will limit such ar rangements to actions necessary to control the imme diate impacts of the emergency. Other actions remain subject to NEPA review.
40 C.F.R. § 1506.11. CEQ's letter of explanation to the Navy stated that the district court's modified injunction "imposes training restrictions . . . that continue to cre ate a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." CEQ Letter to Donald C. Winter at 3. CEQ also stated that "the inability to train effectively with MFA sonar puts the lives of thousands of Americans directly at risk. . . . Therefore, there are urgent na tional security reasons for providing alternative arrange ments under the CEQ regulations." Id. at 3-4.
The Navy then petitioned this court to vacate the dis trict court's preliminary injunction, arguing that CEQ's approval of "alternative arrangements" deprived NRDC of the "likelihood of success on the merits" of its NEPA claims, thus eliminating the legal basis for the injunction. We remanded to the district court to allow it to consider in the first instance whether this legal development mer ited vacatur or a partial stay of the injunction.
On remand, the Navy maintained that the CEQ's "emergency circumstances" determination relieved it of the requirement to prepare an EIS prior to commencing the remaining SOCAL exercises. NRDC argued that CEQ's action was beyond the scope of the regulation and otherwise invalid, and that the preliminary injunction should remain in place. The district court considered these arguments and concluded that its preliminary in junction was "not affected by [CEQ's] approval of emer gency alternative arrangements because there is no emergency." Feb. 4, 2008 Dist. Ct. Order at 2. Accord ingly, it held that "CEQ's action is beyond the scope of the regulation and is invalid[]" and that "[t]he Navy is not, therefore exempted from compliance" with NEPA and the preliminary injunction. Id. The district court found that CEQ's interpretation of "emergency circum stances" to include a court order entered in the course of pending litigation was not authorized by 40 C.F.R. §1506.11, because it was contrary to both the plain mean ing of "emergency circumstances" and the drafters' origi nal intent. It also found that CEQ's action was contrary to the governing statute, NEPA.38
The Navy makes two basic arguments as to why the district court erred by failing to vacate the preliminary injunction in light of CEQ's approval of "alternative ar rangements." First, the Navy argues that the district court lacked subject matter jurisdiction to review CEQ's approval of alternative arrangements because such ap proval constitutes a superseding agency action that re moves as moot any basis for an injunction predicated on plaintiffs' original claims concerning the Navy's EA. Second, the Navy argues that, even if the district court could review CEQ's action, the court erred by not defer ring to CEQ's and the Navy's assessment that "emer gency circumstances" exist within the meaning of 40 C.F.R. § 1506.11. We address the Navy's arguments in turn.
a. Subject Matter Jurisdiction over NRDC's
Challenge to CEQ's Action
The Navy argues that the district court lacked subject matter jurisdiction to consider the validity of CEQ's ac tion because that action allegedly moots the plaintiffs' original claims. Specifically, the Navy contends that the adoption of CEQ's "alternative arrangements" in a su perseding Decision Memorandum constitutes a new ad ministrative action, which can only be challenged by a new claim on the merits. See Rattlesnake Coalition v. EPA, 509 F.3d 1095, 1103-04 (holding that the district court lacked subject matter jurisdiction over new final agency action).39 The district court implicitly rejected this argument by continuing to exercise jurisdiction over the plaintiffs' NEPA claim. Its decision to do so is firmly grounded in the familiar principle that only a valid sub sequent action can render a legal claim moot. See Ada rand Constructors, Inc. v. Slater, 528 U.S. 216, 222-23 (2000); United States v. Larson, 302 F.3d 1016, 1020 (9th Cir. 2002) ("The stipulation moots [plaintiff's] challenge to the suppression ruling only if it is valid."). Accord ingly, the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that it had jurisdiction to assess the validity of the new action in order to determine whether plaintiffs' original claims could survive. See Adarand, 528 U.S. at 222-23.
Nor did the district court abuse its discretion by leav ing in place the preliminary injunction after determining that CEQ's action did not require its vacatur. The Navy's contention that the district court issued "an en tirely new injunction . . . based on new, ancillary claims" mischaracterizes the posture of this case. The Navy challenged the injunction based on CEQ's action; NRDC argued only that CEQ's action did not change the merits of its NEPA claims. Thus, the district court here did not "[g]rant[] a preliminary injunction based on a showing that the plaintiffs were likely to succeed in es tablishing a violation of an ancillary court order, rather than a showing that they were likely to succeed on the merits of any of their claims." Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1135 (11th Cir. 2005).
b. The District Court's Assessment of Whether
"Emergency Circumstances" Existed
(1) Deference
The district court concluded that CEQ's interpreta tion of 40 C.F.R. § 1506.11 is not entitled to deference. It reasoned that under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., the courts traditionally afford deference to (1) an agency's reasonable interpreta tion of a statute it administers "if the statute is silent or ambiguous with respect to the specific issue. . .," citing Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 (1984), and (2) an agency's interpretation of its own regulations unless "an alternative reading is compelled by the regula tion's plain language or by other indications of the [agency's] intent at the time of the regulation's promulga tion," citing Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). See Feb. 4, 2008 Dist. Ct. Order at 13-14.
NRDC challenged neither the propriety of CEQ's original promulgation of 40 C.F.R. § 1506.11 nor the fact that § 1506.11 allows alternative arrangements for com pliance with NEPA under genuine emergency circum stances. Instead, NRDC limited its challenge to CEQ's application of the regulation to the facts of this case. Accordingly, the district court considered whether the term "emergency circumstances" could be afforded so broad an interpretation as to encompass the Navy's need to continue its long-planned, routine sonar training exer cises without the mitigation measures imposed by the district court. The district court concluded that the plain language of the regulation and the limited indicia of the agency's original intent compelled a narrower interpreta tion of "emergency circumstances" than the one afforded it by CEQ. Accordingly, the district court concluded that it did not owe deference to CEQ's interpretation of § 1506.11 under Thomas Jefferson and Seminole Rock. We review that conclusion to determine whether in so doing it relied on an erroneous legal premise or abused its discretion; we conclude that it did neither.
The district court followed established Supreme Court precedent in finding that an agency's interpreta tion of its own regulation is not entitled to deference when it is inconsistent with the regulation itself, conflicts with agency intent at the time of promulgation, and reaches beyond "the limits imposed by the statute," NEPA. See Auer v. Robbins, 519 U.S. 452, 461-63 (1997). Next, the district court, after concluding that the mean ing of "emergency circumstances" was clear, applied the appropriate legal principles that an agency's interpreta tion of its own regulation is entitled to deference "only when the language of the regulation is ambiguous." See Christensen v. Harris County, 529 U.S. 576, 588 (2000). Accordingly, the district court did not abuse its discre tion when it determined not to give deference to CEQ's overly broad interpretation of "emergency circum stances."40
(2) Plain Meaning and Intent of CEQ Regulation
In finding that no emergency circumstances existed, the district court reasoned that the "Navy's current 'emer gency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documenta tion in a timely fashion, via the traditional EIS process or otherwise." Feb. 4, 2008 Dist. Ct. Order at 17. In short, it was not a sudden unanticipated event. The district court supported its conclusion by noting that the CEQ letter does not specify an "emergency" other than the district court's mitigation order itself, which, in CEQ's view, creates a "significant and unreasonable risk" that strike groups will not be able to train and be certified as fully mission capable. Id. at 16-17.
On appeal, the Navy argues that "no matter its gene sis[,] . . . the inability to certify its west coast-based strike groups for deployment to hostile areas overseas during a time of war" is a pressing national emergency. The Navy cites to declarations, including one of the Chief of Naval Operations, that attests to the national security impacts of such a failure at a time when the United States is currently engaged in war in two countries. The Navy contends that the district court's view that the term "emergency circumstances" as used in the regula tion per se excludes the circumstances presented here is an impermissible substitution of its judgment for that of multiple federal agencies (citing Ass'n of Pac. Fisheries v. EPA, 615 F.2d 794, 810-11 (9th Cir. 1980)). We reject this argument and hold, for the reasons explained above, that the district court did not abuse its discretion in de termining that the plain meaning of "emergency circum stances" precludes an interpretation so broad as to en compass the Navy's need to continue long-planned, rou tine training exercises without mitigation measures or dered by the court.
There is ample support for the manner in which the district court exercised its discretion. The district court properly relied on dictionary definitions of "emergency" and "emergency circumstances" to support its conclusion that CEQ's interpretation is not entitled to deference. See Watson v. United States, 128 S. Ct. 579, 583 (2007) (noting that terms are construed consistently with their everyday meaning, including by reference to the dictio nary absent statutory definition or definitive clue). As the district court observed, the Oxford English Online Dictionary defines "emergency" as "[t]he arising, sudden or unexpected occurrence (of a state of things, an event, etc.)." Oxford English Online Dictionary, available at http://dictionary.oed.com. Black's Law Dictionary de fines the term "emergency circumstances," through a cross-reference to "exigent circumstances," as "[a] situa tion that demands unusual or immediate action and that may allow people to circumvent usual procedures, as when a neighbor breaks through a window of a burning house to save someone inside." Blacks Law Dictionary 260, 562 (8th ed. 2004) (emphasis added). The district court did not abuse its discretion in concluding that the circumstances in the present case fall outside the scope of these definitions because its preliminary injunction was entirely predictable given the parties' litigation his tory. Feb. 4, 2008 Dist. Ct. Order at 15.41
The Navy urges that the risk to national security cre ated by the preliminary injunction falls squarely within the legal definition of "emergency circumstances." How ever, the Navy has been on notice of its possible legal obligations to prepare an EIS for the SOCAL exercises from the moment it first planned those exercises. In ad dition, NRDC filed its complaint almost a year ago, and on August 7, 2007, the district court held that the Navy was likely to lose on the merits of NRDC's claims. We affirmed that ruling in November of 2007. Still, the Navy waited until January 10, 2008, to raise a cry of "emer gency" and request the NEPA and CZMA waivers it re lies on here, in order to continue its routine, planned training exercises. We find no abuse of discretion in the district court's determination that such a series of events gives rise to a predictable outcome, not an unforeseeable one demanding "unusual or immediate action."
Moreover, the district court's conclusion finds support in CEQ's recent response to Hurricane Katrina. In March 2006, CEQ approved alternative arrangements to allow the Federal Emergency Management Agency to respond on an emergency basis to "[d]amages to the crit ical physical infrastructure in the New Orleans Metropol itan Area from the impact of Hurricanes Katrina and Rita [that] rendered parts of the city inoperable and un inhabitable." NEPA Alternative Arrangements for Criti cal Physical Infrastructure in New Orleans, 71 Fed. Reg. 14712, 14713 (March 23, 2006). The alternative arrange ments explain that generally, such arrangements are made when "emergency circumstances require taking actions with significant environmental impacts and there is not sufficient time to follow the regular [EIS] pro cess." Id. (emphasis added). This language supports the district court's view that the words "emergency circum stances" in 40 C.F.R. § 1506.11 refer to unexpected, sud denly arising situations that require agency action in a shorter time frame than would be required to prepare an EIS. By contrast, the Navy's routine SOCAL exercises were planned well in advance and with "sufficient time to follow the regular [EIS] process."
In concluding that the Navy's failure to comply timely with NEPA does not constitute an "emergency circum stance" within the meaning of 40 C.F.R. § 1506.11, the district court also relied on the limited drafting history of the regulation. As the district court pointed out, the initial proposed version of the regulation required an agency "proposing to take" an emergency action to con sult with CEQ regarding alternative arrangements.42 See Proposed Implementation of Procedural Provisions, 43 Fed. Reg. 25230, 25243 (June 9, 1978) (emphasis added). However, the drafters changed "proposing to take" to "taking" in order to remove the inference that consulta tion must necessarily precede agency action because "such a requirement might be impractical in emergency circumstances and could defeat the purpose of the sec tion." Implementation of Procedural Provisions; Final Regulations, 43 Fed. Reg. 55978, 55988 (Nov. 29, 1978). While the Navy dismisses this drafting history as reflect ing only that "the proposed regulation was broadened to allow actions to be taken prior to consultation with CEQ," we find no abuse of discretion in the district court's contrary conclusion that the regulatory history "supports a narrow, rather than a broad interpretation of the phrase 'emergency circumstances'" and that the reg ulatory history reflects CEQ's intent to use the regula tion to accommodate "sudden unanticipated events" but not more predictable events such as provisionally unfa vorable litigation results. Feb. 4, 2008 Dist. Ct. Order at 19.
Accordingly, we conclude that the district court did not rely on an erroneous legal premise or abuse its dis cretion in finding that the Navy's attempt to characterize a federal court injunction as an "emergency circum stance" is contrary to the plain meaning of the language and to the intended purpose of CEQ's emergency circum stances regulation.43
(3) Prior Decisions
Prior judicial decisions also support our conclusion that the district court did not rely on erroneous legal premises or abuse its discretion in concluding that CEQ's action is invalid. In each of the cases sustaining an appli cation of 40 C.F.R. § 1506.11, CEQ allowed "alternative arrangements" in response to unanticipated emergencies that required federal agencies to respond quickly to new and changing events.
For example, in Valley Citizens for a Safe Environ ment v. Vest, the court upheld "alternative arrange ments" which permitted the Air Force to fly C-5A trans port planes into and out of Westover Air Force Base on a twenty-four hour schedule, despite a previously pre pared EIS's prohibition of such flights. 1991 WL 330963 (D. Mass. May 30, 1991). The court in Valley Citizens denied the plaintiffs' request for an injunction until a supplemental EIS was completed because it concluded that the modified flight schedule was essential to supply military equipment and personnel for Operation Desert Storm, an emergency response to Iraq's sudden invasion of Kuwait that same month. Id. at *5-6. The court agreed with the determination of CEQ and the Air Force that Iraq's invasion of Kuwait reasonably constituted an emergency "given the military's operational and schedul ing difficulties and the hostile and unpredictable nature of the Persian Gulf region." Id. at *5.
Other cases sustaining CEQ's application of 40 C.F.R. § 1506.11 also support the district court's narrow inter pretation of the phrase "emergency circumstances." Courts have routinely given deference to CEQ's finding of "emergency circumstances" in situations where that finding has been used to "avert imminent crises outside the agency's control." Id. at 17; see, e.g., Nat'l Audobon Society v. Hester, 801 F.2d 405, 405-7 (D.C. Cir. 1986) (giving deference where immediate action was necessary to prevent the extinction of the California condor); Miccousukee Tribe of Indians of Fla. v. United States, 509 F. Supp. 2d 1288, 129091 (S.D. Fla. 2007) (giving def erence where immediate deviation from a water delivery method was necessary to avoid pending extinction of the Cape Sable seaside sparrow in the Everglades); NRDC v. Pena, 20 F. Supp. 2d 45, 50 (D.D.C. 1998) (giving def erence where immediate action was necessary to secure storage of nuclear materials); Crosby v. Young, 512 F. Supp. 1363, 1380, 1386 (E.D. Mich. 1981) (where an im mediate response was required for a city to meet a fed eral funding deadline for a development project to coun teract potentially dire economic effects of the closure of a General Motors plant). In looking to prior decisions, the district court certainly did not apply an erroneous legal principle. Rather, it found legal authority that sup ported its view.
(4) CEQ's Broad Reading of "Emergency
Circumstances" and NEPA
The district court also held that CEQ's broad reading of "emergency circumstances" here is ultra vires because it subverts NEPA's directive that agencies perform their NEPA duties "to the fullest extent possible."44 See 42 U.S.C. § 4332. The existence of specific Congressional exemptions to NEPA informed the district court's deci sion not to read the regulation "so broadly as to inde pendently authorize CEQ to do the same, in the absence of a legitimate 'emergency.'" Feb. 4, 2008 Dist. Ct. Or der at 21. Moreover, the court noted that many of the exemptions granted in other cases involved agencies faced with conflicting Congressional mandates. Id. at 22.
NEPA, the statute authorizing 40 C.F.R. § 1506.11, requires federal agencies to prepare an EIS for a major federal action "significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), or, in the alternative, to implement mitigation measures to mini mize impacts to the point where an EIS in [sic] not re quired. See, e.g., Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001). Although CEQ justified its approval of "alternative arrangements" to satisfy NEPA as grounded in "urgent national security" concerns, see Jan. 15, 2008 CEQ Letter at 4, the district court noted that, in the absence of a bona fide emer gency, the "alternative arrangements" "operate[] to ex empt [the Navy] from the ususal rigors involved in the preparation of an EIS, which forms the 'heart' of NEPA." Feb. 4, 2008 Dist. Ct. Order at 21 n.14 (quoting Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d 1368, 1374-5 (10th Cir. 1980)).
Reviewing CEQ's justification in this light, the dis trict court concluded that CEQ's broad reading of "emergency circumstances" has the effect of reading a "national security" or "defense" exemption into NEPA, where none exists.45 As the district court pointed out, Congress knows well how to exempt planned Defense Department activities from the requirements of NEPA. See, e.g., Nat'l Defense Auth. Act, Pub. L. No. 106-398, § 317, 114 Stat. 1654, 1654A-57 (2000) (specifically ex empting Defense Department from preparing nationwide EIS for low-level flight training). The fact that Congress has not so exempted the Navy's exercises in the Southern California Operating Area further supports the district court's conclusion that 40 C.F.R. § 1506.11 should not be read to exempt the routine SOCAL exercises from NEPA's requirements.
The district court's interpretation also comports with well-established Supreme Court precedent that narrowly interprets NEPA's requirement that agencies comply with its provisions "to the fullest extent possible." The Supreme Court has made clear that the "to the fullest extent possible" language was intended to address only cases in which there is an "irreconcilable and fundamen tal conflict" between NEPA's requirements and the re quirements of another statute. See Flint Ridge Dev. Co. v. Scenic Rivers Ass'n. of OK, 426 U.S. 776, 787-88 (1976). Here, as the district court noted, the Navy has never contended that it could not reconcile the district court's injunction with the requirements of NEPA.
Similarly, NEPA regulations interpret the language "to the fullest extent possible" to mean that "each agency of the Federal Government shall comply with that section unless existing law . . . expressly prohibits or makes compliance impossible." 40 C.F.R. § 1500.6. The legisla tive history of § 1500.6 explains that this language "shall not be used by any Federal agency as a means of avoid ing compliance with [NEPA's] directives . . . ." 115 Cong. Rec. (Part 29) 39702-39703 (1969); see also Calvert Cliffs' Coordinating Comm. Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir. 1971) ("We must stress as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; it does not make NEPA's procedural requirements some how 'discretionary.' . . . Indeed, [the language] sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.").
The Navy asserts that national policy requires that it must be confident that its west coast-based strike groups are prepared and certified for deployment to hostile ar eas overseas during a time of war. However, as the dis trict court noted, nothing prevented the Navy from pre paring an EIS prior to commencing the SOCAL exer cises; indeed, the fact that the Navy is currently develop ing an EIS for exercises in the Southern California Oper ating Area confirms that it is fully capable of meeting NEPA's requirements. See Notice of Intent To Prepare an Environmental Impact Statement/Overseas Environ mental Impact Statement for the Southern California Range Complex, 71 Fed. Reg. 76,639 (Dec. 21, 2006).
Although the Navy argues that "NEPA must give way" so that it may proceed with its training and certifi cation unhindered by environmental rules, quoting Flint Ridge, 426 U.S. at 788, Flint Ridge itself holds that NEPA's procedural requirements are not discretionary and do not give way unless a "clear and unavoidable con flict in statutory authority exists," id., here, the district court carefully examined the record, with which it has longstanding familiarity, and determined that there was no such conflict in statutory authority, concluding that conditioning phrases like "consistent with other essential considerations of national policy," 42 U.S.C. §4331(b), and "to the fullest extent possible," id. § 4332, do not indicate Congressional intent to create a statutory escape hatch. Nor does any intent appear in the implementing regulations, that would allow the Navy to conduct its ex ercises before completing an EIS.46 Feb. 4, 2008 Dist. Ct. Order at 22-23.
In reaching these conclusions, the district court exam ined the various legal rules and applied those that were relevant to this proceeding. Having done so, it acted well within its discretion in determining that CEQ's broad interpretation of "emergency circumstances" is contrary to the dictates of NEPA.
(5) Additional Considerations
We also note that NRDC has raised a serious question as to whether CEQ acted arbitrarily and capriciously in the procedure it used to reach its "emergency circum stances" determination pursuant to 40 C.F.R. § 1506.11. The Navy, arguing that the district court's order created an emergency by compromising its ability to effectively train and certify its strike groups, requested alternative arrangements on January 10, 2008, and submitted evi dence supporting that request the following day. Jan. 15, 2008 CEQ Letter at 1. CEQ approved the Navy's re quest four days later, on January 15, 2008. Id. In the intervening time, CEQ held discussions with, and re ceived briefings from, the Navy and NMFS and reviewed the Navy's supporting documents. Id. at 4. At no point did CEQ request, nor did the Navy provide it, any of the evidence in the district court record contrary to the Navy's position that the challenged mitigation measures would compromise its ability to train and certify its strike groups. Thus, CEQ reached its "emergency cir cumstances" determination without considering any of the substantial evidence on which the district court relied in concluding that the mitigation measures it imposed would not render the Navy unable to train and certify its strike groups. Where, as here, the basis for an emer gency is alleged to be the effect of a district court order, entered after careful review of a full record submitted by both parties, a substantial question exists as to whether CEQ acted arbitrarily and capriciously when it failed to review the full record, and instead considered only one side's views, and on that basis determined that the court's order gave rise to "emergency circumstances."47
(6) Conclusion
For the foregoing reasons, we hold that the district court did not abuse its discretion or rely on an erroneous legal premise in determining that CEQ's broad interpre tation of "emergency circumstances" was not authorized by 40 C.F.R. §1506.11 because it was contrary to the plain meaning of the regulation and contrary to NEPA and, accordingly, that the Navy remains subject to the traditional requirements of NEPA.
2. NRDC's NEPA Claim
We next address the district court's conclusion that NRDC has shown probable success on the merits of its claim that the Navy violated NEPA by failing to prepare an EIS for the SOCAL exercises.
In our November 13, 2007 order we concluded that "Plaintiffs have shown a strong likelihood of success on the merits of their claims under [NEPA]." NRDC, 508 F.3d at 886. While that conclusion was based on our re view of the record underlying the district court's August 7, 2007 preliminary injunction order, the only subsequent developments are CEQ's approval of "alternative ar rangements" pursuant to 40 C.F.R. § 1506.11 and the Navy's concession, by virtue of seeking such approval, that the SOCAL exercises will have a "significant envi ronmental impact." See 40 C.F.R. § 1506.11 ("Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Fed eral agency taking the action should consult with the Council about alternative arrangements.") (emphasis added). Although we elaborate on our reasons, our origi nal conclusion remains unchanged.
a. Statutory Background
As discussed earlier, NEPA requires a federal agency such as the Navy to prepare a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). However, if, as here, an agency's regulations do not categorically require the preparation of an EIS, then the agency must first prepare an EA to determine whether the action will have a significant effect on the environment. Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001); see 40 C.F.R. § 1501.4. If the action will sig nificantly affect the environment, an EIS must be pre pared, while if the project will have only an insignificant effect, the agency issues a Finding of No Significant Im pact (FONSI). Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 864 (9th Cir. 2005); see 40 C.F.R. §§ 1501.3, 1501.4.
"An EIS must be prepared 'if substantial ques- tions are raised as to whether a project . . . may cause significant degradation of some human environmental factor.'" Blue Mountains Biodiversity Project v. Black wood, 161 F.3d 1208, 1212 (9th Cir. 1998) (quoting Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998)). Thus, a plaintiff need not show that signifi cant effects on the environment will in fact occur; raising "substantial questions whether a project may have a sig nificant effect" on the environment is enough. Id.; Idaho Sporting, 137 F.3d at 1150.
NEPA's procedural requirements mandate that an agency take a "hard look" at the environmental conse quences of its actions. Earth Island II, 442 F.3d at 1159. NEPA is unique in that it does not direct or require any particular substantive action on the part of an agency. Its sole purpose is to require that the agency be fully informed as to the environmental consequences of its actions, the mitigation measures available, and the alter natives to its proposed action. Once fully informed, the agency may make its own final rule or decision. How ever, an agency may not avoid preparing an EIS by mak ing conclusory assertions that an activity will have only an insignificant impact on the environment. Ocean Advo cates, 402 F.3d at 864. If an agency opts not to prepare an EIS, it must put forth a "convincing statement of rea sons" to explain why a project's impacts are insignificant. Blue Mountains, 161 F.3d at 1212 (quoting Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988)).
NEPA challenges are reviewed under the APA, which provides that an agency action may be set aside if it is "arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law[.]" 5 U.S.C. § 706(2)(A). The agency's decisions are "entitled to a presumption of regularity. But that presumption is not to shield [the agency's] action from a thorough, probing, in-depth re view." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971) (citations omitted). Thus, in re viewing an agency's decision not to prepare an EIS, a court must "determine whether the agency has taken a 'hard look' at the consequences of its actions, 'based [its decision] on a consideration of the relevant factors,' and provided a 'convincing statement of reasons to explain why a project's impacts are insignificant.'" Native Eco systems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) (quoting Nat'l Parks & Conservation Ass'n, 241 F.3d at 730).
Agencies have wide discretion in assessing scientific evidence, but they "must 'take a hard look at the issues and respond[ ] to reasonable opposing viewpoints.'" Earth Island II, 442 F.3d at 1160 (internal quotation omitted, brackets in original). "'When specialists ex press conflicting views, an agency must have discretion to rely on the reasonable opinions of its own experts, even if a court may find contrary views more persuasive. At the same time, courts must independently review the record in order to satisfy themselves that the agency has made a reasoned decision based on its evaluation of the evidence.'" Id. (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)). "If an agency has failed to make a reasoned decision based on an evaluation of the evidence, we may properly conclude that an agency has acted arbitrarily and capriciously." Id.
b. Substantial Questions about the Environmental Im pact of the Exercises
The district court found that NRDC had raised sub stantial questions as to whether the SOCAL exercises would have a significant impact on the environment. Jan. 3, 2008 Dist. Ct. Order at 6-7. Accordingly, the court concluded that NRDC had demonstrated probable suc cess on the merits of its claim that the Navy's failure to prepare an EIS was arbitrary and capricious and in vio lation of NEPA and the APA. Id. at 7. The district court did not rely on an erroneous legal premise or abuse its discretion in so concluding.
Initially, we repeat our observation that the Navy, by seeking approval by CEQ of "alternative arrangements" pursuant to 40 C.F.R. § 1506.11, has effectively conceded that the SOCAL exercises will have a significant impact on the environment. See 40 C.F.R. § 1506.11. As the text of § 1506.11 indicates, the very purpose of the regulation is to provide for the possibility of alternative arrange ments where emergency circumstances require the tak ing of an action "with significant environmental impact" without observing the requirements of NEPA. See id. The fact that the Navy sought relief under § 1506.11 is evidence that the Navy recognizes that the SOCAL exer cises have a "significant environmental impact."
Moreover, the fact that "[t]he Navy is currently eval uating the environmental impact of MFA sonar training exercises through its development of the SOCAL Range Complex Environmental Impact Statement," Jan. 15, 2008 CEQ Letter at 2, confirms that, at the very least, the Navy acknowledges that substantial questions have been raised as to whether the SOCAL exercises will have a significant impact on the environment. Accordingly, were we not to review the Navy's EA, we would have little difficulty concluding that the district court did not rely on an erroneous legal premise or abuse its discretion in determining that NRDC has demonstrated probable success on the merits of its NEPA claim. Our own review of the EA leads us to the same conclusion.48
The Navy argues that the district court made a clearly erroneous assessment of the evidence of the effect of MFA sonar on marine mammals in the waters of southern California. Specifically, the Navy asserts that the court misunderstood the significance of the EA's ref erence to the 548 predicted instances of Level A harass ments of beaked whales. The Navy explains that it cate gorized predicted sonar exposures to beaked whales as Level A harassments not because beaked whales were expected to suffer such harassments but rather because such categorization would allow the Navy to analyze the potential impacts of MFA sonar on each beaked whale species in greater detail than it would otherwise.
We find no abuse of discretion in the district court's rejection of the Navy's argument. The Navy's explana tion for its categorization of predicted sonar exposures to beaked whales as Level A harassments finds no support in the EA, and counsel for the Navy was unable to ex plain at oral argument on November 8, 2007, how classi fying exposures as Level A harassments would allow the Navy to better analyze the impacts of MFA sonar on var ious species of beaked whales. Rather, the EA makes clear that the Navy categorized the expected exposures to beaked whales as Level A harassments because it con cluded, in light of recent beaked whale strandings linked to the use of MFA sonar, that beaked whales may be more sensitive to sonar exposures than other cetaceans. Because the lack of data precluded the Navy from estab lishing separate impact thresholds for beaked whales, the Navy decided that for beaked whales it would categorize exposures as Level A harassments that would constitute Level B harassments for other cetaceans.
The Navy's decision to do so is supported by ample evidence indicating that beaked whales are particularly vulnerable to MFA sonar. The documented strandings of marine mammals that have been linked to the use of MFA sonar overwhelmingly involve beaked whales.49 Indeed, according to the International Whaling Commis sion the evidence associating the use of MFA sonar with beaked whale strandings is "very convincing" and "ap pears overwhelming." Similarly, a Navy-sponsored study found "completely convincing" the evidence that MFA sonar had caused strandings of beaked whales.
Moreover, to the extent that a paucity of scientific data prevents the Navy from establishing meaningful impact thresholds for beaked whales, that is a reason to conduct further research and prepare an EIS-not a rea son to ignore the data that does exist and proceed with the SOCAL exercises without adequate mitigation mea sures. As we explained in National Parks:
An agency must generally prepare an EIS if the envi ronmental effects of a proposed agency action are highly uncertain. Preparation of an EIS is mandated where uncertainty may be resolved by further collec tion of data or where the collection of such data may prevent speculation on potential . . . effects. The purpose of an EIS is to obviate the need for specula tion by insuring that available data are gathered and analyzed prior to the implementation of the proposed action.
Nat'l Parks & Conservation Ass'n, 241 F.3d at 732 (in ternal citations and quotations omitted).
The Navy also contends that the district court misun derstood the significance of the nearly 170,000 predicted Level B harassments. First, the Navy argues that this number is an overestimate resulting from conservative assumptions in its model and from the fact that it does not take into account the mitigation measures the Navy would employ. However, the Navy stated in the EA that its prediction of the harm to marine mammals was "con sistent with the best available science." And while the Navy "assumed" that its prediction was an overestimate, it acknowledged that the science was "incomplete," which apparently precluded the Navy from even approximating by how much it had overestimated the harm. Likewise, the Navy made no attempt to approximate how many Level B harassments its mitigation measures would pre vent.50 Accordingly, we, like the Navy, must rely on the estimate of nearly 170,000 predicted Level B harass ments.
Second, the Navy argues that most of the predicted Level B harassments are below the threshold for causing temporary hearing loss and will induce only temporary behavioral responses which can be as minor as causing an animal to avoid the noise source. But according to the Navy's own definition of Level B harassment, those tem porary behavioral responses are nevertheless profound, as they cause "disruption of natural behavioral patterns . . . to a point where such behaviors are abandoned or significantly altered."51 As the NMFS' Biological Opinion makes clear, such disruption of natural behavioral pat terns can be lethal for marine mammals.
While the EA also states that it is "highly unlikely" that Level B harassments would cause disturbance to a point where behavioral patterns are abandoned or signif icantly altered, the EA provides no support for that statement and fails to explain why those harassments are nevertheless classified as Level B under the EA's own definition. The district court did not abuse its discretion in determining that such a conclusory statement does not dispense with the requirement of preparing an EIS. See Ocean Advocates, 402 F.3d at 864 ("[An agency] cannot avoid preparing an EIS by making conclusory assertions that an activity will have only an insignificant impact on the environment.").
Next, the Navy argues that it was "entitled to rely" on the conclusion of the NMFS in its Biological Opinion, which the district court held satisfied the NMFS' statu tory obligation, see 16 U.S.C. § 1536(a)(2), that the SOCAL exercises were not likely to jeopardize the con tinued existence of threatened or endangered marine mammal species. But the NMFS opined only on the ef fects of MFA sonar on six species of marine mammal,52 which do not include several rare or uncommon species of marine mammal that are expected to be exposed to a significant number of sonar harassments.53 For example, the EA predicts 436 Level A harassments of Cuvier's beaked whales. According to NOAA, as few as 1,121 Cuvier's beaked whales may exist in California, Oregon and Washington combined. Likewise, the EA predicts 1,092 Level B harassments of bottlenose dolphins, of which only 5,271 may exist in the California Coastal and Offshore stocks.
The Navy suggests that the test is whether the con tinued existence of marine mammal species is jeopar dized. This is wrong. An agency action can have "signif icant effects" on the environment short of threatened extinction. NEPA regulations promulgated by CEQ pro vide that "significantly" has two components: context and intensity. 40 C.F.R. § 1508.27. Context refers to the setting in which the proposed action takes place, in this case the Southern California Operating Area. See id. § 1508.27(a). Intensity means "the severity of impact." Id. § 1508.27(b). In considering the severity of the poten tial environmental impact, a reviewing agency may con sider up to ten factors to help inform the "significance" of a project, including the degree to which the effects on the quality of the human environment are likely to be "highly controversial" and the degree to which the possi ble effects on the human environment are "highly un- certain or involve unique or unknown risks." Id. §§ 1508.27(b)(4), (b)(5). We have held that "one of these factors may be sufficient to require preparation of an EIS in appropriate circumstances." Ocean Advocates, 402 F.3d at 865; see Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 508 F.3d 508, 553 (9th Cir. 2007); Nat'l Parks & Conservation Ass'n, 241 F.3d at 731.
Notably, whether an agency action will jeopardize the continued existence of an endangered or threatened species is not among these factors. See 40 C.F.R. § 1508.27(b). However, the degree to which the action may "adversely effect" an endangered or threatened spe cies is. See id. § 1508.27(b)(9). While the NMFS' Biolog ical Opinion concluded that the SOCAL exercises were not likely to jeopardize the continued existence of the six endangered species it studied, it nevertheless acknowl edged that the exercises "may adversely affect" those species. Thus, while the Navy was not required to disre gard the NMFS' "no jeopardy" opinion, see Envtl Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1012 (9th Cir. 2006), the Biological Opinion by its own terms makes clear that the SOCAL exercises may "significantly" af fect the environment, see Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1275-76 (10th Cir. 2004) (re garding as not determinative for NEPA purposes the Fish and Wildlife Service's "no jeopardy" opinion as to bald eagles).
The Navy further argues that its finding of no signifi cant impact was not arbitrary and capricious because no sonar-inflicted injuries have been observed in the South ern California Operating Area in almost forty years of MFA sonar use by the Navy. But as explained above, that fact has limited probative value in establishing whether marine mammals will in fact be harmed by the Navy's use of MFA sonar. Exposure to MFA sonar may physically and behaviorally harm marine mammals even if it does not cause them to strand. And absent strand ing, such harm is difficult to observe. That is particularly true for the beaked whale-the marine mammal most vulnerable to MFA sonar-in which a population decline of 50% over 15 years would go undetected as a decline at all in 90% of the beaked whale stocks.
Finally, the Navy claims that the correlation between the past marine mammal strandings and MFA sonar is irrelevant because the combination of environmental con ditions "found at the locations of documented marine mammal stranding incidents" is not present in the South ern California Operating Area. But contrary to this claim, the EA indicates that the Navy has studied only the stranding in the Bahamas in 2000 and not any of the other stranding events.
Moreover, while the Navy's study of the Bahamas stranding identified a combination of factors that contrib uted to the whales' injury-the presence of a strong sur face duct, unusual water bathymetry, intensive use of multiple sonar units over an extended period of time, a constricted channel with limited egress, and the presence of beaked whales that appear to be sensitive to the fre quencies produced by these sonars-the EA provided no supporting data or analysis for its conclusion that this combination of factors does not exist in the Southern Cal ifornia Operating Area. Thus, we find no abuse of discre tion in the district court's conclusion that the Navy has failed to provide the support for its conclusion that NEPA requires. See 40 C.F.R. § 1502.24.
In addition, the Navy's Bahamas study acknowledged that combinations of factors different from the one pres ent in the Bahamas "may be more or less likely to cause strandings" (emphasis added). Thus, even if the combi nation of factors present in the Bahamas in fact does not exist in the Southern California Operating Area, the com bination of factors that does exist may be even more likely to cause injury to marine mammals. The EA does not explore that possibility.
In sum, the district court did not abuse its discretion in concluding that NRDC raised substantial questions as to whether the SOCAL exercises would have a significant impact on the environment. All of the reasons stated in the EA for why the Navy believed the SOCAL exercises would not have the deleterious effect that the Navy's own model predicted were cursory, unsupported by cited evi dence, or unconvincing. Thus, we find ample support for the district court's conclusion that the Navy has not "articulate[d] a rational connection between the facts found and the conclusion[] reached." Earth Island II, 442 F.3d at 1156-57 (quoting Midwater Trawlers Co-op v. Envtl. Def. Ctr., 282 F.3d 710, 716 (9th Cir.2002)).
c. The Navy's Mitigation Measures
The district court also concluded that NRDC had demonstrated probable success on the merits of its claim that the Navy's mitigation measures were inadequate to obviate the need for preparing an EIS. Again, we find no reliance on an erroneous legal premise and no abuse of discretion in the district court's conclusion.
The Navy correctly points out that "[a]n agency's de cision to forego issuing an EIS may be justified in some circumstances by the adoption of [mitigation] measures" and that those measures, if significant, "need not com pletely compensate for adverse environmental impacts." Nat'l Parks & Conservation Ass'n, 241 F.3d at 733-34 (citations and internal quotation marks omitted). How ever, we have also held that a "perfunctory description" or "mere listing of mitigation measures, without support ing analytical data," is insufficient to support a finding of no significant impact. Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000) (citations and internal quotation marks omitted). We find no reversible error in the district court's conclusion that the Navy's list of proposed mitigation measures was precisely such a perfunctory description devoid of supporting data.
The explanation contained in the EA as to why the mitigation measures are effective is contained in four short bullet points, stating that whales and dolphins spend extended periods of time on the surface, have rela tively short dive periods, tend to move in large groups (pods), and frequently come to the surface and have a high level of activity there. Three of those bullet points in effect state the same thing, namely that whales and dolphins spend little time under water. This explanation is inadequate for several reasons.
First, the Navy's explanation overlooks the fact that beaked whales spend much of their time under water, surface infrequently, and are generally difficult to detect. A study by NMFS scientists observed that "beaked whales are always difficult to see when they are on the surface, spend most of their time below the surface, and are found at low densities over large areas." Likewise, NRDC submitted a declaration by a biologist who opines that visual monitoring by ship-based lookouts would re sult in the detection of only 2% of beaked whales in the Southern California Operating Area, in part because of the speed at which Navy vessels travel. Declaration of Dr. Robin William Baird ¶ 6.
Second, the Navy's explanation fails to address the effectiveness of the Navy's safety zones-the only mea sure that directly reduces exposure of marine mammals to MFA sonar. Specifically, the EA fails to explain why a safety zone of only 1,000 yards is adequate, why reduc ing the sonar level by 6dB and 10dB at the 1,000-yard and 500-yard marks, respectively, is adequate, and why it is effective to halt MFA sonar transmission altogether only at the 200-yard mark.54 The Navy's explanation also does not relate to the effectiveness of the measure re quiring passive sonar to be used to detect sounds made by marine mammals.
While the Navy claims in the EA that it is "very likely" that lookouts would detect a group of common dolphins because of "frequent surfacing" and group sizes of "over a thousand animals," it notably makes no such claims about Cuvier's beaked whales, Mesoplodont beaked whales or Ziphiid beaked whales. Indeed, the EA acknowledged that Cuvier's beaked whales and Mesoplo dont beaked whales exhibit a range of dives lasting up to 87 minutes.
Moreover, while the EA claims that it is "very likely" that Baird's beaked whales will be detected by lookouts, it states nothing about the frequency with which those whales surface. While it may be that, as the EA states, beaked whales are large in size and travel in groups of between nine and thirteen animals, those facts hardly prove the effectiveness of visual surveillance measures considering that beaked whales generally come to the surface infrequently.
We find further support for the district court's con clusion that the Navy's mitigation measures did not obvi ate the need to prepare an EIS in the fact that, as ex plained above, the Navy refused to adopt several of the more aggressive mitigation measures recommended by the CCC, employed in the 2006 RIMPAC exercise, or imposed by the Department of Defense for non-RIMPAC exercises in 2006. Specifically, the Navy refused to:
o Expand the outer safety zone to 2 kilometers;55
o Reduce sonar power in conditions of low visibility or strong surface ducting;
o Avoid training in areas known to have high con centrations of marine mammals or during the gray whale's migratory season;
o Monitor for 30 minutes prior to commencement of MFA sonar use;
o Restrict operation of MFA sonar within 25 kilome ters from the 200-meter isobath;
o Restrict operation of MFA sonar within 12 nauti cal miles from the coast;56 and
o Restrict operation of MFA sonar in choke points, constricted channels, or canyon-like areas.57
Notably, as to most of these measures the Navy does not contest that they would be effective. While the Navy claims that some of the measures would adversely affect its ability to achieve the objectives of the exercises, that does not render the measures the Navy has adopted ade quate to avoid the need for preparing an EIS. Indeed, the Navy states in its "after action report" following the first three SOCAL exercises that in future exercises it intends to incorporate data collection necessary to ad dress the question of how many marine mammals not observed by lookouts may have been exposed to danger ous sonar levels, and will integrate additional monitoring tools and techniques. While the Navy's intent is com mendable, it implicitly acknowledges that its current mitigation and data collection efforts are less than ade quate.
We conclude that the district court did not abuse its discretion in determining that the Navy's cursory expla nation in the EA for why its mitigation measures are ef fective does not demonstrate that those measures "con stitute an adequate buffer against the negative impacts" that may result from the SOCAL exercises. See Nat'l Parks & Conservation Ass'n, 241 F.3d at 734. Accord ingly, we uphold the district court's conclusion that the Navy's reliance on its incomplete mitigation plan in de ciding not to prepare an EIS was likely arbitrary and capricious and affirm its determination that NRDC has demonstrated probable success on the merits of its NEPA claims. Cf. Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1112 (9th Cir. 2000).58
B. Possibility of Irreparable Injury
In our November 13, 2007 order we affirmed the dis trict court's conclusion that NRDC had met its burden of demonstrating the possibility of irreparable injury. NRDC, 508 F.3d at 886. We now explain that decision.
As the district court noted, "[w]here, as here, plain tiffs demonstrate a likelihood of prevailing on the merits of their claims, injunctive relief is appropriate where there is a 'possibility of irreparable harm.'" Jan. 3, 2008 Dist. Ct. Order at 12 (quoting Faith Ctr. Church Evange listic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir. 2007)). NRDC must show the possibility of irreparable harm to its membership. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000). After analyzing the "numerous scien tific studies, declarations, reports, and other evidence submitted," the district court concluded that NRDC had established "to a near certainty" that use of MFA sonar in the SOCAL exercises will cause irreparable harm to the environment and to NRDC's membership. Jan. 3, 2008 Dist. Ct. Order at 12.
The Navy argues that the harm resulting to the envi ronment from the use of MFA sonar in the SOCAL exer cises is merely "speculative." But the Navy's own EA proves otherwise. The EA estimates that the use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A harassment) and nearly 170,000 behavioral disturbances (Level B harassment), more than 8,000 of which would also involve temporary hearing loss. As explained above, while the Navy protests that these fig ures are overestimates resulting from its conservative approach, the EA makes clear that the figures are "con sistent with the best available science." Indeed, the Navy's failure to suggest by how much its figures overes timate the actual harm to marine mammals confirms that the EA's figures are the best available estimates. Those estimates, in turn, contradict the Navy's suggestion that the harm caused by MFA sonar in the SOCAL exercises is merely speculative.
Moreover, while the record contains no evidence that marine mammals have been harmed by the use of MFA sonar in the Southern California Operating Area, the scientific consensus that MFA sonar may cause injury and death to marine mammals combined with the evi dence that such injury, absent a stranding, is difficult to detect-especially in the case of the vulnerable beaked whale-further disproves the suggestion that the harm caused by MFA sonar in the SOCAL exercises is merely speculative.
The Navy also argues that its use of MFA sonar will cause only temporary harm to marine mammals and therefore will not result in irreparable injury. But the EA again undermines the Navy's argument. The EA's estimate that 564 instances of Level A harassment will occur demonstrates that the use of MFA sonar will also cause permanent harm to marine mammals. Likewise, the EA's own definition of Level B harassment indicates that the nearly 170,000 estimated instances of such ha rassment may result in the outright abandonment of im portant behaviors by marine mammals.
Finally, the Navy argues that NRDC failed to meet its burden of demonstrating that marine mammals "will suffer irreparable injury at the species or stock-level." For two reasons, the Navy has not shown that the dis trict court relied on an erroneous legal premise or abused its discretion in rejecting this argument.
First, NRDC had only the burden of demonstrating the "possibility of irreparable injury," Freecycle Net work, 505 F.3d at 902, not that irreparable injury "will" necessarily occur. See Earth Island II, 442 F.3d at 1159 (holding that the district court erred in requiring that the plaintiff show a "significant threat of irreparable injury" because that standard imposes a higher burden of proof than the "mere possibility of irreparable harm" stan dard).
Second, the Navy has cited no support for the propo sition that NRDC was required to demonstrate the possi bility of irreparable injury at the species or stock-level. While the Navy relies on Water Keeper Alliance v. Dep't of Defense, 271 F.3d 21 (1st Cir. 2001), the court in that case only concluded that the district court did not abuse its discretion in concluding that the "death of even a sin gle member of an endangered species" would be an insuf ficient basis for the plaintiffs to demonstrate the possibil ity of irreparable injury. See id. at 34. Here, the district court found that, according to the Navy's EA, the SOCAL exercises "will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered species, and may cause permanent injury and death." January 3, 2008 Dist. Ct. Order at 12.
In any event, even if NRDC were required to demon strate the possibility of irreparable injury at the species or stock-level, it would have satisfied that requirement here. As discussed earlier, the EA predicts 436 Level A harassments of Cuvier's beaked whales, of which, accord ing to NOAA, as few as 1,121 may exist in California, Oregon and Washington combined. Similarly, the EA predicts 1,092 Level B harassments of bottlenose dol phins [ER 400-01], of which only 5,271 may exist in the California Coastal and Offshore stocks. [ER 136.]
Accordingly, we hold that the district court did not rely on an erroneous legal premise or abuse its discretion in concluding that NRDC has demonstrated the possibil ity of irreparable injury.
C. Balance of Hardships
Having determined that the district court neither relied on erroneous legal premises nor abused its discre tion in determining that NRDC has demonstrated a strong likelihood of success on the merits of its NEPA claim and the possibility of irreparable injury, we turn to the "balance of hardships." See Freecycle Network, 505 F.3d at 902. The Supreme Court has held that environ mental injury, in addition to often being permanent or of long duration, can seldom, by its nature, "be adequately remedied by money damages"; therefore, "[i]f such in jury is sufficiently likely, . . . the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545 (1987).
The Navy maintains, and the district court did not contest, that its ability to train and certify its west-coast strike groups for combat deployment is critical.59 The Navy argues that its ability to engage in these critical activities is severely degraded by: (1) the requirement that it shut down its use of MFA sonar when a marine mammal is detected within 2,200 yards of a sonar-emit ting source; and (2) the requirement that it power down its sonar use by 6 dB (75%) when significant surface ducting conditions are detected. Without proper training and certification, the Navy asserts that it will not be able to deploy a sufficient number of combat-ready forces to provide for the national defense.
The district court rejected the Navy's argument that the balance of hardships tipped in its favor. It concluded that although "the imposition of these mitigation mea sures will require the Navy to alter and adapt the way it conducts antisubmarine warfare training-a substantial challenge," the measures would not preclude the Navy from effectively training and certifying forces for deploy ment to combat zones in the western Pacific and the Mid dle East.60 Feb. 4, 2008 Dist. Ct. Order.
The gravity of the Navy's asserted hardship requires that we review the district court's determination, as well as the affidavits submitted by the Navy, with the utmost care. We have done so here and, for the reasons set forth below, we conclude that the district court did not abuse its discretion in reaching its determination.
We note that any negative impact on the Navy's abil ity to successfully conduct its exercises under the chal lenged mitigation measures is necessarily speculative because the Navy has never before employed these mea sures in the context of MFA sonar training.61 The specu lative nature of the Navy's asserted harm is reflected in its own characterization of the hardship; the Navy does not claim that the challenged measures will categorically preclude effective training and certification, but rather that they will give rise to an "unacceptable risk" of such a result. Our task, then, is to determine, as best we are able from the record before us, whether the district court erred by giving insufficient weight to the Navy's asserted hardship or by resting its conclusions on clearly errone ous factual findings.
In support of its assessment that the challenged mea sures will significantly impair its training exercises, the Navy offers the declarations of various high-ranking offi cers. For example, Admiral John Locklear explains that the 2,200 yard safety zone will in "[his] opinion . . . have crippling implications on Navy's ability to conduct realistic pre-deployment [ASW] training employing MFA sonar" and "will significantly impact ASW training." Locklear decl. ¶¶ 9, 13. The Chief of Naval Operations refers to an unacceptable risk to strike group certifica tion posed by both the safety zone and surface ducting measures. The judgment of these naval officers and, in particular, that of the Chief of Naval Operations, who is charged with the statutory responsibility under 10 U.S.C. § 5062 for organizing, training, and equipping the Navy, is entitled to substantial deference. See Khalsa v. Weinberger, 779 F.2d 1393, 1400 n.4 (9th Cir. 1985) ("The degree of deference due to factual assertions by the mili tary is proportionate to the need for the application of military experience, judgment, and expertise in evaluat ing the assertion.").
Nevertheless, a court's deference is not absolute, even when a government agency claims a national security interest. See, e.g., Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) ("[D]eference is not equiva lent to acquiescence . . . ."). The district court there fore did not abuse its discretion when it considered the Navy's declarations along with the evidence contained in the record as a whole. This evidence, much of it submit ted by the Navy itself, supports the district court's con clusion that the challenged mitigation measures will not likely compromise the Navy's ability to effectively train and certify its west-coast strike groups. We address the evidence with respect to each of the challenged mitiga tion measures in turn.
1. The 2,200 Yard Shutdown Zone
We first consider the requirement that the Navy shut down its use of MFA sonar when a marine mammal is detected within 2,200 yards of a sonar-emitting source.62 Upon a careful review of the record, we find no clear er ror in the district court's factual finding that this mea sure would not compromise the Navy's ability to train and certify its strike groups.
The "after action reports" compiled by the Navy fol lowing eight prior COMPTUEX and JTFEX exercises in the Southern California Operating Area undermine the Navy's assessment of the significance of the hardship that this mitigation measure would impose.63 The reports contain several relevant data points. First, the data re veal a relatively low likelihood that a marine mammal will be sighted during a time when the Navy's MFA sonar is in use, thereby triggering implementation of this mitiga tion measure. During two of the eight exercises, no ma rine mammals were sighted while MFA sonar was in use. In the remaining exercises, sightings rarely occurred while MFA sonar was in use.64 In fact, over the course of eight exercises lasting one or more weeks each, the Navy observed marine mammals only 51 times while using MFA sonar, which represents less than 15% of all marine mammal observations (345) during those exercises. Sec ond, the data show that the Navy shut down its MFA sonar twenty-seven times over the course of its eight prior exercises. If the district court's mitigation measure had been in place, the Navy would have had to shut down at most an additional twenty-one times: an increase of only two to three shutdowns per exercise.65 Moreover, of
the twenty-one additional times that the Navy would have been required to shut down, in eleven of these in stances, the Navy powered down its sonar. During these power-downs, the Navy's detection capability was signifi cantly reduced. See, e.g., Bird decl. ¶ 49. Accordingly, if the district court's injunction had been in place, the Navy would have had to compromise detection capability only approximately one more time per exercise. Third, the "after action reports" do not establish any serious, nega tive effects on operational impact from the smaller safety zone imposed in the eight exercises.66 Because the broader safety zone likely will not require significantly more shutdowns, the district court's conclusion that this mitigation measure does not pose a significant risk of rendering the Navy's training exercises ineffective is well-supported. We cannot, on this record, find that the district court abused its discretion.
In addition to data drawn from "after action reports," the record contains other evidence of the feasibility of mandatory shutdown zones of this size, and even greater, during naval training exercises. Indeed, the size of the district court's imposed shutdown zone was based on the CCC's proposed mitigation measure, which in turn was drawn from the Navy's own imposition of a 2,000 meter shutdown requirement when it uses low-frequency active sonar.67 While the record does not indicate whether low-frequency active sonar has the same effect on marine mammals as MFA sonar, the Navy offers no explanation as to why a 2,000 meter safety zone is feasible during its operation of low-frequency active sonar but not during its use of MFA sonar.68
2. The Requirement to Power-Down in Significant
Surface Ducting Conditions
We next consider the requirement that the Navy power-down its sonar use by 6 dB when significant sur face ducting conditions are detected. Although the Navy stresses the importance of training in surface ducting conditions, it admits-and the record confirms-that such conditions occur relatively rarely in the southern California waters in which the Navy has chosen to con duct its exercises. Indeed, the "after action reports" from JTFEX and COMPTUEX exercises conducted in the Southern California Operating Area in 2006 show that significant surface ducting conditions were not de tected during any of those exercises. Yet despite the strike groups' inability to train under such conditions, the Navy certified them. The record, then, undermines the Navy's contention that the district court's mitigation measure regarding surface ducting conditions will signif icantly impact its ability to certify strike groups.
Thus, although the actual effect of the challenged mit igation measures on the exercises at issue is necessarily speculative, data from past Navy exercises and practices supports the district court's conclusion that the imposi tion of these measures is not likely to prevent effective training and certification of strike groups. After a thor ough review of this record, we are not "left with the defi nite and firm conviction that a mistake has been commit ted." Sports Form, Inc., 686 F.2d at 752. To the con trary, there is significant evidence of the Navy's ability to successfully train and certify its strike groups under the conditions imposed by the district court. We there fore conclude that the district court did not abuse its dis cretion in ordering the Navy to comply with the chal lenged mitigation measures.
3. Balancing
As explained earlier, the scientific studies, declara tions and reports in the record confirm the district court's determination that irreparable harm to marine mammals will almost certainly result should the Navy be permitted to conduct its remaining exercises without appropriate mitigation measures. See, e.g., Bain decl. ¶ 14 (explaining that "the monitoring and mitigation adopted by the Navy is insufficient to detect, much less prevent, marine mammal injury and mortality"); Decla ration of Dr. Thomas A. Jefferson decl. ¶ 4 (describing the link between military sonar and the stranding and deaths of beaked whales and other cetaceans). As the district court observed, the 2,200 yard shutdown zone might protect marine mammals from only "the harshest of sonar-related consequences." Jan. 3, 2008 Dist. Ct. Order at 15.
Further, as the district court noted, the exercises in southern California are only a subset of the Navy's training activities involving active sonar.69 Id. at 12-13. NRDC submitted evidence that the Navy uses active sonar in hundreds of exercises each year throughout the world. The evidence linking several whale strandings to the Navy's use of active sonar in training exercises around the world further confirms that the Navy trains in its use of active sonar in many different areas.
While we are mindful of the importance of protecting national security, courts have often held, in the face of assertions of potential harm to military readiness, that the armed forces must take precautionary measures to comply with the law during its training. See, e.g., NRDC v. Evans, 364 F. Supp. 2d 1083, 1143 (N.D. Cal. 2003) ("A tailored injunction reconciles the very compelling inter ests on both sides of this case, by enabling the Navy to continue to train with and test [low-frequency active] sonar as it needs to do, while taking some additional mea sures to better protect against harm to marine life."); Makua v. Rumsfeld, 163 F. Supp. 2d 1202, 1221 (D. Haw. 2001) ("Although the court recognizes the importance of national security and live-fire training, the potential harm to the Army resulting from a brief preliminary in junction will not be significant."). As in those cases, the district court here carefully balanced the significant in terests and hardships at stake to ensure that the Navy could continue to train without causing undue harm to the environment. We review that balance to determine whether it rests on clearly erroneous findings of fact. Having concluded that it does not, we determine that the district court did not abuse its discretion and therefore do not disturb its carefully considered injunction.
We recognize that although the record indicates that the Navy will be able to continue to train and certify strike groups effectively despite the two challenged miti gation measures, there remains the possibility that, when they are actually implemented, it will be unable to do so. In light of the hardship that the Navy and the public would suffer should the imposed measures actually result in an inability to train and certify sufficient naval forces to provide for the national defense, we conclude that, in the unlikely event that such a situation arises, the Navy may return to the district court to request relief on an emergency basis.
D. Advancement of the Public Interest
There are two dimensions to the public interest in this case. The public has an interest both in national security and in protection of the marine environment. The public interest with respect to national security is the same as that discussed in our consideration of the hardship the Navy would suffer if it were unable to effectively train and certify its strike groups. The public interest with respect to protection of the marine environment is the same as that discussed in our consideration of the irrepa rable injury NRDC would suffer if the SOCAL exercises were carried out in the absence of appropriate mitigation measures. As our discussion makes clear, we conclude that the district court did not rely on an erroneous legal premise or abuse its discretion in analyzing either of these interests. Accordingly, there is no need for any additional discussion of the public interest.
V. Conclusion
The district court concluded that plaintiffs have met the necessary burden of proof to demonstrate that pre liminary injunctive relief is appropriate. It held that plaintiffs have shown a strong likelihood of success on the merits, as well as the possibility of irreparable injury if relief is not granted. It also held that plaintiffs have shown that the balance of hardships tips in their favor in light of the preliminary injunction's narrowly-tailored mitigation measures which provide that the Navy's SOCAL exercises may proceed as planned if conducted under circumstances that provide satisfactory safeguards for the protection of the environment. Finally, it held that the public interest is advanced by a preliminary in junction that imposes adequate mitigation measures. In reaching these conclusions, the district court neither re lied on erroneous legal premises nor abused its discre tion. We therefore affirm the district court's preliminary injunction.
AFFIRMED.
1 The National Marine Fisheries Service has now been renamed "NOAA Fisheries." Because many of the documents refer to the agency by its former name, it shall be referred to as "the NMFS" throughout this opinion.
2 While the district court imposed the injunction when the Navy had yet to conduct nine training exercises, it issued a temporary partial stay of its injunction on January 17, 2008, after which the Navy con ducted its sixth exercise. Accordingly, only eight of the fourteen scheduled exercises have not yet been conducted.
3 Because the district court did not rule on the likelihood of success of plaintiffs' CZMA claim in light of the President's exemption, we decline to reach that issue.
4 The district court granted NRDC's motion only in part because it found that NRDC had not demonstrated probable success on the merits of its additional claim that the NMFS and the other non-Navy defendants had failed to prepare an adequate Biological Opinion and Incidental Take Statement in violation of the Endangered Species Act and the Administrative Procedure Act. NRDC has not appealed that portion of the district court's ruling.
5 The CCC has intervened as appellee in this action.
6 The Navy employs two types of strike groups. A carrier strike group generally consists of an aircraft carrier and five surface com- batant ships. May decl. ¶ 5. An expeditionary strike group includes surface combatant ships and an amphibious ready group. Id.
A strike group starts developing skill sets at the individual ship, submarine, or aviation squadron level by conducting unit-level training. Id. ¶ 6. As skill levels increase, units coordinate training with other units. Id. Prior to commencing the "integrated" phase of the Navy's training plan, the individual units comprising a strike group must be trained and attain proficiency in the "basic" phase of the training plan. Id. ¶ 25. During the "integrated" training phase, an individual unit learns and demonstrates skills as a team member of the strike group. Following completion of the "integrated" phase, strike groups enter the "sustainment" phase of the training plan. Id. This phase continues through the strike group's scheduled deployment and post-deployment periods and ends with the commencement of the "maintenance" phase, during which the ships comprising the strike group undergo mainte nance and modernization. Id. ¶¶ 24, 25.
7 We note that neither quiet submarines, nor the use of active sonar to detect them, are new technologies. According to the Navy's En vironmental Assessment ("EA"), active sonar was used effectively against German U-boats during World War II, and during the Cold War technological developments in active sonar were "critical" for tracking sophisticated Soviet submarines. [ER 66.]
8 According to the Navy, low-frequency active sonar is trans- mitted at frequencies between 0.1 kHz and 1.0 kHz; mid-frequency active sonar at frequencies between 1.0 kHz and 10.0 kHz; and high-frequency active sonar at frequencies greater than 10.0 kHz. Bird decl. ¶ 12; May decl. ¶ 9.
9 Active sonar allows a calculation of the distance of a target sub marine by considering the speed at which the sonar sound moves through water and the time it takes for emitted sonar sound to travel to the target and back. Bird decl. ¶ 12.
10 According to the study, the "key area" in southern California comprises the Californian shelf margins, which the study defines as the area west of the Californian coast up until the 125.0 degree longitude. Navy maps in the record show that the Southern California Operating Area falls largely within this area. [See, e.g., ER 349-50].
11 These behavioral responses were observed in a study to which the EA cites for the effects of MFA sonar on marine mammals. See J.J. Finneran and C.E. Schlundt, Effects of Intense Pure Tones on the Behavior of Trained Odontocetes, Space and Naval Warfare Systems Center, San Diego, Technical Document (September 2004).
12 The NMFS issued the Biological Opinion pursuant to section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), which concluded that while the SOCAL exercises might "adversely affect" certain threatened and endangered species, the exercises were not "likely to jeopardize the [species'] continued existence." The NMFS also issued an Incidental Take Statement under which harm done to animals of the threatened or endangered species would be excused under the ESA as incidental.
13 A 2004 Navy-sponsored study investigated several possible ex planations for beaked whales' vulnerability to MFA sonar, including that beaked whales have a specialized anatomy, possibly due to their deep diving, which renders them especially sensitive to sound, and that beaked whales are "especially skittish" such that loud, reverberant acoustic fields cause "uncontrolled attempts to escape." The study con cluded that the latter explanation was the most likely to be correct, but that this conclusion could change "as more research is done on this problem."
14 Notably, the study states that after the stranding in the Canary Islands, local researchers examined past stranding records and found reports of eight other strandings of beaked whales in the Canaries since 1985, at least five of which coincided with naval activities offshore.
15 According to the study, NATO has been unwilling to provide information on its sonar activity during the Madeira Island exercises.
16 The RIMPAC exercises have been conducted biennially since 1968 in the "Hawaiian operating area" and are intended to enhance the com munication and coordination between Pacific Rim armed forces "as a means of promoting stability in the region to the benefit of all partici pating nations." Bird decl. ¶ 34. Unlike the JTFEX and COMPTUEX exercises, the RIMPAC exercises are not part of the "integrated" phase of the Fleet Response Training Plan; they are focused on command and control among the nations involved, and not focused on certifying strike groups for deployment. Id. However, like the JTFEX and COMP TUEX exercises, the RIMPAC exercises include ASW training that involves the use of MFA sonar.
17 The EA expressed the impact thresholds in terms of "energy flux density level," which is a measure of the flow of sound energy through an area, or, more formally, the time integral of the squared pressure divided by the impedance. Energy flux density is expressed in units of decibels referenced to the pressure and duration of the sound, e.g., 215 dB re 1 &Pa_-s. For convenience, we express the impact thresholds, and exposures to MFA sonar generally, only in units of decibels.
18 The statements in the EA that "[t]he modeling efforts and haras sment analysis for mid-frequency active sonar estimate that no Level A harassment" of beaked whales will occur is not to the contrary. As explained above, the Navy acknowledged in the EA that it did not know whether the impact thresholds it established for cetaceans generally also applied to beaked whales. Accordingly, the Navy decided that although its harassment model using those impact thresholds did not predict any Level A harassments to beaked whales, it would neverthe less treat all predicted Level B harassments to beaked whales as Level A harassments.
19 These figures appear in the EA's Appendix A; the slightly different figures cited by the parties and the district court appear to be incorrect because they fail to account for 98 instances of Level A harassment to Ziphiid whales.
20 The "after action reports" compiled by the Navy following com pletion of COMPTUEX and JTFEX exercises in the Southern Cali fornia Operating Area do catalogue a number of marine mammal deaths. For example, the Navy's June 2007 "after action report" fol- lowing the first three SOCAL exercises notes that during one of the exercises the Navy observed a floating, badly decomposed whale carcass, and that during two of the exercises it observed floating pin niped and dolphin carcasses. The report does not disclose whether necropsies were performed on the carcasses and it does not discuss whether the deaths might be related to the use of MFA sonar. Instead, the report proffers only the tentative explanation that "circumstantial evidence" of a link between "potential" algal toxin in California ocean waters and increased marine mammal mortality "is not unexpected" and "may" have "contributed" to the fact that pinniped and dolphin carcasses were observed. June 28, 2007 COMPTUEX/JTFEX Com bined After Action Report at 13-14.
21 The data in the "after action reports" for the eight COMPTUEX and JTFEX exercises in the Southern California Operating Area show that of 345 instances of marine mammal sighting, MFA sonar was being used only in 51 instances, or 14.8% of the time.
22 The EA provides no information on the length of the dives of Baird's and Ziphiid beaked whales.
23 Moreover, the NMFS' Biological Opinion states that two low-fre quency sonar systems are likely to be employed in the SOCAL exer cises, but it does not state in what proportion they have been used in the past or will be used now. The fact that one of those systems has the same acoustic capabilities as, but improved processing capabilities over, the other system-a fact to which the Navy refers in its November 13, 2007 letter to the court-is irrelevant.
24 The same lack of clarity afflicts the statement in a Navy declara tion that the Navy's training activities involving sonar during World War II "were similar in nature and intensity to those currently ana lyzed in the [EA for the SOCAL exercises]." Declaration of Conrad Erkelens ¶ 16. The statement does not make clear whether "intensity" refers generally to the frequency or size of the exercises or more specifically to the length of time during which sonar was used. Even if it refers to the latter, it appears to refer to the use of sonar per training activity, not per year.
25 Only the League for Coastal Protection was not a plaintiff in the 2006 action.
26 The NMFS's Incidental Harassment Authorization (IHA), issued pursuant to 16 U.S.C. § 1371(a)(5), authorized the incidental "taking" of a small number of marine mammals under the Marine Mammal Pro tection Act (MMPA), 16 U.S.C. § 1361 et seq. The Deputy Secretary of Defense incorporated the mitigation measures imposed by the NMFS into NDE I issued pursuant to 16 U.S.C. § 1371(f), which exempted from the MMPA for a period of six months all military readiness activities employing MFA sonar, including the 2006 RIMPAC exer- cise. The NDE I imposed different mitigation measures for non- RIMPAC exercises during the six month period, including the pro hibition on use of MFA sonar within 12 nautical miles of a coast.
27 Because the decibel is a logarithmic unit of acoustic power (using the base 10 logarithm), a reduction in sonar level of 6 dB corresponds to a reduction in sound intensity of approximately 75%, and a reduction in sonar level of 10 dB corresponds to a reduction in sound intensity of 90%. See Bird decl. ¶ 29.
28 As one meter equals 1.094 yards, the sizes of the three safety zones correspond to approximately 1,100 yards, 550 yards, and 220 yards, respectively.
29 An isobath is a line (either imaginary or on a map) joining places where water has equal depth.
30 The Navy asserted in its "after action report" that 8 hours of lost MFA sonar use translated into a somewhat greater amount of lost exer cise time because once the sonar is turned off, simply turning it back on does not usually allow the Navy Commander to continue the exercise where it left off.
31 The CZMA requires that a federal agency planning to conduct activities that may have reasonably foreseeable effects on California's coastal resources must apply to the CCC for a determination that those activities are consistent to the maximum extent practicable with the enforceable policies of the CCMP. See 16 U.S.C. § 1456(c)(1)(C); 15 C.F.R. § 930.36.
32 Following the CCC's conditional concurrence, the Navy agreed to adopt two of the CCC's mitigation measures: retrieving inert dropped mine shapes from the water and submitting to the CCC all monitoring results provided to the NMFS. The mitigation measures set forth in the EA, which have been standard operating procedure since 2004, appear to include two other measures proposed by the CCC: requiring passive sonar operators to monitor for marine mammals and report the detection of any such mammals; and providing a report to the NMFS following a major exercise that includes the results of marine mammal monitoring (a measure already employed in the 2006 RIMPAC exer cise). The Navy concedes that the measure concerning dropped mine shapes "has nothing to do with MFA sonar usage," Dec. 20, 2007 Decla ration of Rear Admiral John M. Bird ¶ 13, and the two reporting re quirements do not mitigate actual harm to marine mammals but instead assist in the determination of the impacts of the SOCAL exercises. See Feb. 4, 2008 Dist. Ct. Order at 6 n.7. Only the use of passive sonar to monitor for marine mammals mitigates the harm caused by the use of MFA sonar.
33 As stated above, the Navy had agreed to employ in the 2006 RIMPAC exercise a 2,000 meter safety zone in strong surface ducting conditions.
34 The nine bullet points reflect the substance of the ten mitigation measures the Navy refused to adopt; two of the conditions have been consolidated in the fifth bullet point.
35 We note that the Navy has recently agreed to slightly enlarge its safety zones by applying safety zones of 1,000, 500 and 200 meters instead of 1,000, 500 and 200 yards. Bird decl. ¶ 58. As a result, those safety zones are now of equal size as those employed in the 2006 RIMPAC exercise. However, the Navy has not agreed to employ ex panded safety zones in strong surface ducting conditions.
36 The Navy also adopted a mitigation measure requiring "increased vigilance" during major ASW exercises using MFA sonar when "critical conditions" are present: a rapid change in bathymetry in areas of a certain depth; where three or more vessels are operating MFA sonar in the same area for six hours or more; where MFA sonar may "cut off" the exit route for marine mammals from a bay or channel; and the historical presence of a significant surface duct. However, in its June 2007 "after action report" the Navy explained that it had assessed the conditions of the Southern California Operating Area and concluded that "the requirements stated in [the aforementioned mitigation mea sure] do not apply to the physical conditions found in Southern Cali fornia." Accordingly, this mitigation measure is not being employed in the SOCAL exercises and therefore does not, in fact, mitigate the impact of MFA sonar on marine mammals during those exercises.
Similarly, the Navy adopted as a mitigation measure the requirement that MFA sonar be operated "at the lowest practical level, not to exceed 235 dB, except as required to meet tactical training objectives." How ever, that requirement, also adopted for the 2006 RIMPAC exercise, has no apparent mitigating effect because (1) it is not clear whether the Navy ever assumed higher sonar levels when using its harassment model to predict harm to marine mammals, (2) the Navy's interim report on the Bahamas stranding indicates that sonar levels during the Bahamas exercise did not exceed 235 dB even without the mitigation measure, and (3) the exception that the Navy may exceed the 235 dB limit "as required to meet tactical training objectives" swallows the rule, as tactical training objectives are the only reason for using MFA sonar to begin with, thus allowing the Navy to exceed the 235 dB limit whenever it in fact uses MFA sonar.
37 The parties clarified at oral argument on February 27, 2008, that "significant" is the same as "strong," the term used to modify surface ducting conditions in the mitigation measures for the 2006 RIMPAC exercise.
38 The district court also noted that CEQ had essentially crafted its own, alternative injunction, which suggested that CEQ, as an executive body, was effectively "sitting in review of a decision of the judicial branch." The district court observed that CEQ's actions raised "ser ious constitutional concerns under the Separation of Powers doctrine," but it declined, pursuant to the doctrine of constitutional avoidance, to make a finding as to the constitutionality of its action. See Feb. 4, 2008 Dist. Ct. Order at 24.
39 Notably, none of the cases that the Navy cites in support of this argument involve a plaintiff's challenge to the validity of a new agency action. For example, in Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1096 (9th Cir. 2003), plaintiffs' claims were rendered moot because the superseding and controlling environmental documentation that displaced the earlier agency action did not rely on the challenged assumptions that formed the basis of plaintiffs' claims. In W. Radio Serv. Co. Inc. v. Glickman, 113 F.3d 966, 974 (9th Cir. 1997), a challenge to a letter postponing the issuance of certain permits until a fee struc ture was established was rendered moot by the subsequent issuance of a fee structure. In Aluminum Co. of Am. v. Bonneville Power Admin., 56 F.3d 1075 (9th Cir. 1995), challenges to a 1993 Rule of Decision were moot because augmentations were being issued under a subsequent Rule of Decision. Finally, in Oregon Natural Res. Council v. Harrell, 52 F.3d 1499, 1501-02, 1508 (9th Cir. 1995), the district court ordered a challenged ROD withdrawn because it was incomplete, and a subse quent challenge to that non-operative ROD was thus held to be moot.
40 The district court also held that Skidmore deference is inapplicable because this case involves an agency's interpretation of a regulation, not its informal interpretation of a statute it administers. See Feb. 4, 2008 Dist. Ct. Order at 19 n.13 (rejecting plaintiffs' argument that because it does not arise out of formal rulemaking, CEQ's interpretation is entitled to little or no deference under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). While this holding is correct as a matter of law, our determination that the district court neither abused its discretion nor relied on an erroneous legal premise in concluding that no defer ence is owed CEQ's overly broad interpretation of "emergency circum stances" renders this issue moot.
41 NRDC provides several more dictionary definitions of "emer gency," all of which include the terms "unexpected" or "unforseen." The Navy refers us to another source that defines "emergency" as "a situation demanding immediate attention." Random House Dict. of the English Lang. 636 (2d ed. 1987). We do not adjudicate the meaning of the word "emergency" here. Rather, we need conclude only that the district court did not rely on erroneous legal principles or abuse its dis cretion in reaching its determination as to that term's plain meaning. Because we are not "left with the definite and firm conviction that a mistake has been committed[,]" we leave the district court's determina tion intact. Sports Form, Inc., 686 F.2d at 752.
42 In its analysis of the agency's intent, the district court appropri ately declined to consider the declaration of Nicholas C. Yost, CEQ general counsel at the time the regulation was drafted, as "an unreliable guide" to CEQ's intent, comparing the declaration to "subsequent legis lative history." Feb. 4, 2008 Dist. Ct. Order at 18-19 (quoting Chapman v. United States, 500 U.S. 453, 464 n.4 (1991) (internal citations omitted)).
43 NRDC makes the additional argument that CEQ's order goes beyond the scope of the regulation because the "alternative arrange ments," prescribed prospectively through January 2009, go beyond those "actions necessary to control the immediate impacts of the emergency," even if there were an emergency. Because we hold that there is no basis for reversing the district court's determination that there were no "emergency circumstances" under 40 C.F.R. § 1506.11, and therefore no basis for CEQ's order, we do not reach the merits of this argument.
44 Moreover, NEPA also requires agencies to use "all practicable means and measures" to fulfill their duties under it. 42 U.S.C. § 4331(b).
45 Moreover, the district court's conclusion was grounded in the well-established fact that there is no "national defense" exception to NEPA. See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1035 (9th Cir. 2006); No GWEN Alliance of Lane County, Inc. v. Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988). "'The Navy, just like any federal agency, must carry out its NEPA mandate to the fullest extent possible and this mandate includes weigh ing the environmental costs of the [project] even though the project has serious security implications.'" San Luis Obispo, 449 F.3d at 1035 (quoting No GWEN, 855 F.2d at 1384).
Indeed, Congress has included exemptions for "paramount" national security concerns in many environmental statutes, but not in NEPA. See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2621 (compliance waived if the President determines a requested waiver to be necessary "in the interest of national defense"); Coastal Zone Management Act, 16 U.S.C. § 1456(c)(1)(b) (under certain circumstances the President may exempt an activity that is in the "paramount interest of the United States"); Endangered Species Act, 16 U.S.C. § 1536(j) (exemption granted if the Secretary of Defense finds such exemption necessary "for reasons of national security"); Clean Water Act, 33 U.S.C. § 1323(a) (the President may exempt federal effluent source for up to one year if in the "paramount interest of the United States"); Safe Drinking Water Act, 42 U.S.C. § 300j-6(a) (the President may exempt federal facility for up to one year if in the "paramount interest of the United States"); Resource Conservation and Recovery Act, 42 U.S.C. § 6961(a) (the President may exempt federal solid waste management facility for up to one year if in the "paramount interest of the United States"); Clean Air Act, 42 U.S.C. § 7417(b) (the President may exempt federal emis sion source for up to one year if in the "paramount interest of the United States"); Comprehensive Environmental Response, Compensa tion and Liability Act, 42 U.S.C. § 9620(j) (the President may issue orders to exempt facilities of the Department of Energy and the Department of Defense "as may be necessary to protect the national security interests of the United States . . ."). See Oct. 1, 2007 Brief of Amicus Curiae Law Professors Hope Babcock, et al. at 16 & n.4.
46 The Navy argues, in the alternative, that CEQ's action comports with NEPA because it actually gives effect to the district court's con clusion that an EIS is likely required and provides "alternative ar rangements" as a bridge until the agency completes this EIS. Because we have concluded that the district court did not abuse its discretion in determining that no emergency existed and that CEQ had no authority to issue its order, we need not reach this argument.
47 CEQ's action raises a serious question not only under the APA, but also under the Constitution. The separation of powers doctrine pre vents Congress from vesting review of the decisions of Article III courts in the Executive Branch. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (explaining that Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy"); see also Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 (1792). Here, the Navy represented, and CEQ determined, that "emergency circumstances" existed because the district court's preliminary injunc tion prevented the Navy from effectively training and certifying its strike groups for deployment. In making this determination, CEQ pre sumably reviewed the same evidence that the Navy presented to the district court (without, as noted above, the benefit of NRDC's evidence) and concluded, despite the district court's explicit factual finding to the contrary, that the imposed mitigation measures would compromise the Navy's ability to train and certify its forces. We find substantial merit in NRDC's argument that even if the district court's factual findings with respect to the effect of its mitigation measures were erroneous, it was the job of the appellate court-and not the Executive Branch-to so conclude. However, because the district court declined to reach this question, we, too, do not consider the constitutional argument in deter mining that the district court did not rely on an erroneous legal premise or abuse its discretion when it held that CEQ's action was invalid.
48 The Navy does not reargue the merits of NRDC's NEPA claim in its current appeal brief. We therefore assume that the Navy's current position is the same as set forth in its brief filed with our court on September 14, 2007.
49 We reject the Navy's argument that the district court erred by relying on evidence not included in the Navy's administrative record in reaching its conclusion that NRDC had demonstrated probable success on the merits. While generally a district court's review under the APA is limited to the administrative record before the agency, it may con sider evidence beyond the administrative record in certain situations. See, e.g., Ranchers Cattlemen Action v. USDA, 499 F.3d 1108, 1117 (9th Cir. 2007). The district court properly considered extra-record evi dence here because the Navy never submitted an administrative record to the district court despite having had almost a year to do so since NRDC filed its complaint on March 22, 2007. The Navy has not offered any valid explanation for why it failed to submit an administrative record. We note that the Navy filed a fourteen-volume record in the related litigation concerning the 2006 RIMPAC exercise only two days after NRDC filed its complaint in that case.
50 The Navy has estimated that in the 2006 RIMPAC exercise, the employed mitigation measures prevented approximately 100 marine mammals from being exposed to MFA sonar. Even ignoring the fact that the mitigation measures employed in the 2006 RIMPAC exercise were more stringent than those the Navy has agreed to employ in the SOCAL exercises, that estimate would suggest that in the fourteen SOCAL exercises the mitigation measures would prevent only 1,400 exposures to marine mammals (14 exercises x 100 prevented expo sures). Accordingly, the estimate of 170,000 Level B harassments would hardly be diminished by the Navy's current mitigation measures.
51 The Navy derived this definition from the MMPA, 16 U.S.C. § 1362(18)(B)(ii), which was amended in 2003 to exclude from the definition those acts that disrupted natural behavioral patterns but not to the point where the behaviors were abandoned or significantly altered. See H.R. Rep. No. 99(I), 108th Cong. 1 Sess. 2003 (5/14/03).
52 Those six species are the fin whale, humpback whale, sei whale, sperm whale, and Guadalupe fur seal.
53 While in a recent memorandum-written well after the Navy prepared its EA-the NMFS concluded that the Navy's own mitigation measures "will minimize the likelihood of beaked whales being caught in circumstances that characterize known strandings of beaked whales," Jan. 9, 2008 Memorandum from NMFS to the Under Secretary of Commerce for Oceans and Atmosphere at 3, the NMFS did not con clude that the Navy's measures would prevent direct physical injury (such as tissue damage) to beaked whales. Indeed, the NMFS acknowledged that "the mechanism by which MFA sonar appears to be injurious to beaked whales is poorly understood." Id. at 4.
54 As stated earlier, the Navy has recently agreed to adopt safety zones with radii of 1,000, 500 and 200 meters instead of 1,000, 500 and 200 yards. However, the radius of the Navy's outer safety zone is still half of the radius recommended by the CCC, resulting in a safety zone that is 75% smaller than the one found necessary by the CCC.
Notably, NRDC has submitted declarations by scientists who state that sonar levels even below the Navy's lowest impact threshold of 173 dB may be fatal and that sonar sound can travel up to hundreds of miles under water, which suggests that the Navy's significantly smaller safety zones are inadequate. See Parsons decl. ¶ 13, Weilgart decl. ¶ 10.
55 The Navy did not discuss this measure in its EA, let alone explain why it would not be effective. In its "after action report" following the 2006 RIMPAC exercise, the Navy disposed of this mitigation measure simply by declaring it "not prudent" and "without scientific merit."
56 The Navy asserts on appeal that the SOCAL exercises will occur more than twelve nautical miles from the mainland coastline, but con cedes that the exercises will occur within twelve nautical miles of Clemente Island, which falls within the Southern California Operating Area. In its January 3, 2008 preliminary injunction order the district court required the Navy to refrain from using MFA sonar within 12 nautical miles from the California coastline. Jan. 3, 2008 Dist. Ct. Order at 14.
57 The parties disagree as to whether there are any choke points in the Southern California Operating Area. In its January 3, 2008 pre liminary injunction order the district court found that the Catalina Basin poses the same concerns as a choke point: ingress and egress to the basin are restricted and the area has a high density of marine mammals. Jan. 3, 2008 Dist. Ct. Order at 17. Accordingly, the district court ordered the Navy to refrain from using MFA sonar in the Cata lina Basin. Id. at 17-18.
58 The district court also concluded that NRDC had demonstrated probable success on the merits of its claims that the Navy violated NEPA by preparing an EA that failed to adequately consider reason able alternatives to its proposed action, see, e.g., Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1998) (explaining that under NEPA federal agencies must sufficiently study, develop, and describe alternatives as part of the "environmental decisionmaking process"), as well as the cumulative impacts of its actions, see, e.g., Klamath-Sis kiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th Cir. 2004) (explaining that an EA must provide a "useful analysis of the cumulative impacts of past, present, and future projects"). Jan. 3, 2008 Dist. Ct. Order at 8-10. We decline to address this aspect of the district court's order as we have already concluded that the court did not abuse its discretion in finding that NRDC has demonstrated probable success on the merits of its other NEPA claims
59 For example, Captain Martin M. May states that "[m]odern, quiet submarines . . . pose the primary threat to the littorals, control of strategic maritime choke points, transit through international straits, and protection of sea lines of communication vital to international com merce." May decl. ¶ 19. These submarines are "nearly undetectable to U.S. and allied naval forces without the use of [MFA] sonar." Id. at ¶ 20. Captain May also asserts that "[s]onar operators and crews must train regularly and frequently to develop the skills necessary to master the art and processes of identifying submarines in the complex sub surface environment[,]" and that computer simulations are not adequate for teaching these skills. Id. at ¶ 22. Captain May maintains that if sonar use is enjoined, the Navy would be unable to gauge a fleet's ability to use active sonar. Id. at ¶ 26.
Captain May also contends that "[t]he ranges that comprise the Southern California Operating Area make up a unique area in which strike groups can meet all required training objectives at the same time. Id. at ¶ 25. Another significant factor is that many of the opera ting areas have been surveyed and closely mirror the prospective operating environments in many of the world's 'hot' spots where U.S. Naval forces may be required to fight." Id. Training "in our own lit torals . . . also build[s] proficiency and experience in our own waters should the enemy attempt to interdict U.S. forces deploying to the area of conflict." Id.
60 The district court crafted its mitigation order after carefully weighing evidence submitted by the parties over a period of "long standing involvement" with the matters at issue. It took into account the Navy's need for training in certain bathymetry and under certain conditions, and declined to impose several of plaintiffs' proposed "sweeping geographic exclusions" which would have precluded the Navy from training with MFA sonar within 25 nautical miles of the coast, in waters shallower than 1,500 meters to the maximum extent possible, and in the Westfall seamount and the Cortez and Tanner Banks. Jan. 3. 2008 Dist. Ct. Order at 13 n.6.
61 The Navy has not represented that, if the challenged measures are upheld, it will cease its training exercises. Further, the Navy acknowl edged at oral argument on February 27, 2008, that it can certify strike groups despite the inability to train in surface ducting conditions. We therefore proceed under the assumption that the exercises will continue to take place, thereby preserving the possibility of successful training and certification of strike groups. Thus, the district court did not err in failing to weigh the hardship to the Navy, and the public, that would result if the Navy stopped training altogether. Rather, the district court did not abuse its discretion and properly considered the hardship that would result if the Navy were required to abide by the challenged mitigation measures during its remaining exercises in 2008 and 2009.
62 Although our discussion supra addresses the evidence contained in the record with respect to the likely impact that the increase in the safety zone's size will have on training and certification, the Navy also contests this measure's application to all sonar sources, including helicopter dipping sonar and sonobuoys which emit less powerful sonar waves. See, e.g., Locklear decl. ¶ 11. Despite the fact that the dipping sonar and sonobuoys have lower energy source levels, they still operate at levels above those shown to pose a danger to marine mammals. See, e.g., Parsons decl. ¶ 13. Accordingly, the district court's decision to include these sonar sources in its mitigation measure was not an abuse of discretion.
63 During these exercises, the Navy's preferred 1,000 yard safety zone was implemented requiring a 6 dB power-down when a marine mammal was detected within 500-1,000 yards, an additional 4 dB power-down within 200 and 500 yards, and a mandatory shutdown within 200 yards.
We note that the first four of the eight exercises for which the record contains "after action reports" were not part of the current SOCAL exercises.
64 The low likelihood of a sighting occurring while MFA sonar is being used does not mean it is rare for marine mammals to be exposed to dangerous noise levels. Rather, two facts demonstrate that the number of sightings does not equate to the number of mammals affected by an MFA sonar event: (1) the presence of marine mammals is difficult to detect by "sight" because many spend significant amounts of time submerged underwater; and (2) sound travels long distances in water (in some cases up to many hundreds of miles) creating the potential for adverse effects beyond the range of sight.
65 The Navy argues that this mitigation measure will result in a five-fold increase in the number of times it is required to shut down during training exercises. The Navy arrives at this higher number by excluding from its calculation shutdowns that occurred beyond the 200 yard mandatory shutdown zone. But this calculation fails to account for the Navy's actual practice of shutting down sonar in a significant num ber of cases where marine mammals were detected beyond 200 yards, including at distances as far as 3,100, 4,000, and 6,000 yards. In fact, the "after action reports" reveal that of the twenty-seven times the Navy shut down MFA sonar, it did so fifteen times when the observed marine mammals were outside the 200 yard mandatory shutdown zone and four times when the marine mammals were at an "unknown" distance.
There is no dispute that the Navy continued to certify its strike groups throughout these exercises. The Navy defends its exclusion of any non-mandatory shutdowns in its count by claiming that any shutdowns that occurred beyond the 200 yard range "likely occurred during tactically insignificant times." Locklear decl. ¶ 11. The record fails to support this claim. The "after action reports" do not distinguish between shutdown events in evaluating training impacts. Indeed, the very same language is used to describe the loss of detection opportuni ties during all of the exercises, without regard to whether the shut downs occurred within or beyond 200 yards.
66 Indeed, the "after action reports" contain only one instance in which the Navy comments that its operation was actually affected by a safety zone mitigation measure. See After Action Report for COMP TUEX 07-01 (19 November-19 December 2006) at 6. All the other reports state that the impact of the safety zone measure was "not determinable in the reactions of the particular units" and only speculate that "the proximity of a submarine in the vicinity meant there was a potential submarine detection opportunity missed by the exercise par ticipants."
67 While we recognize that each Navy has unique operating require ments, the record shows that NATO imposes a 2,000 meter shutdown zone when a marine mammal is detected-the same zone that the dis trict court's preliminary injunction requires. The Australian Navy goes farther, mandating a shutdown of activities if a marine mammal is detected within 4,000 yards of a sonar-emitting vessel.
68 To the contrary, in its initial submissions to the court, the Navy represented that "[p]rior to [the district court's] requirement, the maxi mum mandatory shutdown zone the Navy ever employed was 200 meters." Jan. 15 Emergency Motion at 16 (emphasis added). This representation is plainly contradicted by the record. In its most recent brief to the court, the Navy clarified that, "Prior to this requirement, the maximum mandatory shutdown zone ever employed for MFA sonar was 200 meters." However, the Navy still does not discuss nor defend its ability to implement a 2,000 meter safety zone in its low-frequency, but not in its mid-frequency, sonar activities.
69 Indeed, the EA shows that the Navy considered as alternatives conducting the exercises in other locations, including Alaska and Hawaii, reducing the number of exercises, and using exercise simula tion. While the Navy's EA provides reasonably detailed justifications for why the Southern California Operating Area is uniquely suited to these exercises, and demonstrates that the Navy would suffer a certain hardship if the considered alternatives were employed instead, the EA nonetheless shows the Navy is still able to conduct its exercises in alternate locations, in reduced number, or through simulation.
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 08-55054
D.C. No. CV-07-00335-FMC
Central District of California, Santa Ana
NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE
INTERNATIONAL FUND FOR ANIMAL WELFARE; CETA CEAN SOCIETY INTERNATIONAL;
LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU,
PLAINTIFFS-APPELLEES
CALIFORNIA COASTAL COMMISSION,
INTERVENOR-APPELLEE
v.
DONALD C. WINTER, SECRETARY OF THE
NAVY; UNITED STATES DEPARTMENT OF THE NAVY; CARLOS M. GUTIERREZ, SECRETARY
OF THE DEPART MENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICES; WILLIAM
HOGARTH, ASSISTANT ADMINIS TRATOR FOR FISHERIES OF THE NATIONAL OCEANO GRAPHIC
AND ATMOSPHERIC ADMINISTRATION; CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR
OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION, DEFENDANTS-APPELLANTS
[Filed: Feb. 29, 2008]
ORDER GRANTING PARTIAL STAY
Before: B. FLETCHER, D.W. NELSON, and REINHARDT, Circuit Judges.
As we explain in our opinion issued concurrently with this order, we affirm the district court's January 3, 2008 preliminary injunction order, as modified on January 10, 2008. The preliminary injunction permits the Navy to complete the remaining eight of fourteen scheduled COMPTUEX and JTFEX exercises in the waters off the coast of southern California on the condition that it employ a number of measures designed to mitigate the harm to marine mammals that the district court found would, "to a near certainty," result from the Navy's use of mid-frequency active sonar (MFA sonar). See Jan. 3, 2008 Dist. Ct. Order at 12.
The Navy has argued that the balance of hardships tips in its favor because two of the mitigation measures imposed by the district court would significantly limit its ability to conduct anti-submarine warfare training as part of the scheduled exercises and would consequently jeopardize its ability to certify its strike groups as ready for deployment. The two mitigation measures require the Navy to (1) suspend its use of MFA sonar if a marine mammal is detected within 2,200 yards of the sonar source, and (2) reduce the acoustic energy level of MFA sonar by 6 decibels whenever significant surface ducting conditions are detected. See Jan. 10, 2008 Dist. Ct. Or der.
On this appeal, we do not determine the issues finally but decide only whether the district court relied on an erroneous legal premise or abused its discretion in issu ing its preliminary injunction order on the basis of its finding that plaintiffs had a strong likelihood of success on the merits and that the balance of hardships favored them. Thus, the scope of our review at this juncture is limited. In light of the short time before the Navy is to commence its next exercise, the importance of the Navy's mission to provide for the national defense and the repre sentation by the Chief of Naval Operations that the dis trict court's preliminary injunction in its current form will "unacceptably risk" effective training and strike group certification and thereby interfere with his statu tory responsibility under 10 U.S.C. § 5062 to "organiz[e], train[], and equip[] the Navy," we sua sponte partially and temporarily stay the preliminary injunction as adopted by the district court to the extent provided herein.
We modify the abovementioned two mitigation mea sures and stay them in their original form. All other pro visions of the preliminary injunction shall remain un changed and in effect. The two modified measures shall be in effect in lieu of the original measures until the expi ration of this stay order. We act out of an abundance of caution to protect the important interests at stake in this appeal pending possible further review and in the firm belief that the modified provisions should satisfy the con cerns stated by the Chief of Naval Operations in his affi davit, while protecting the marine mammals to the extent possible given those concerns.
The first mitigation measure is modified to require the Navy to suspend its use of MFA sonar if a marine mammal is detected within 2,200 yards of the sonar source, except when MFA sonar is being used at a "criti cal point in the exercise," in which case the Navy shall reduce the MFA sonar level by 6 decibels when a marine mammal is detected within 1,000 meters from the sonar source, reduce the MFA sonar level by 10 decibels when a marine mammal is detected within 500 meters of the sonar source and suspend its use of MFA sonar when a marine mammal is detected within 200 meters of the so nar source.70 A "critical point in the exercise" is a point when, in the discretion of the Admiral overseeing the exercise or the commander of the sonar-emitting vessel, continued use of MFA sonar is critical to the certification of a strike group or the effective training of its personnel. For example, the responsible officer, in his discretion, might determine that a shutdown would fundamentally undermine effective training or certification because the particular exercise underway is at a stage that would be seriously compromised by a shutdown.
The second mitigation measure is modified to require the Navy, when significant surface ducting conditions are detected, to reduce the MFA sonar level by 6 decibels where a marine mammal is detected within 2,000 meters of the sonar source, reduce the MFA sonar level by 10 decibels where a marine mammal is detected within 1,000 meters of the sonar source, and suspend its use of MFA sonar where a marine mammal is detected within 500 meters of the sonar source.
The partial stay of the preliminary injunction is en tered without prejudice to either party's seeking further relief from the district court in the event of provable ac tual harm warranting such relief.
This stay shall remain in effect for 30 days from the date of this order, unless a petition for certiorari to the Supreme Court of the United States is sought. If such petition is filed on or before the thirtieth day, the partial stay of the preliminary injunction shall remain in effect until final disposition by the Supreme Court.
SO ORDERED.
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
D.C. No. 8:07-cv-00335-FMC-FMOx
NATURAL RESOURCES DEFENSE COUNCIL, ET AL., PLAINTIFFS
v.
DONALD C. WINTER, ET AL., DEFENDANTS
[Filed: Feb. 4, 2004]
ORDER DENYING DEFENDANTS' EX PARTE APPLI CATION TO VACATE PRELIMINARY INJUNCTION OR TO PARTIALLY STAY PENDING APPEAL AND ORDER VACATING TEMPORARY STAY
This matter is before the Court on remand from the Ninth Circuit Court of Appeals. The Court was in structed to consider the effect of recent executive actions on its January 3, 2008 Order issuing a preliminary in junction, as modified January 10, 2008, and its January 14, 2008 Order Denying Defendants' Application for a Stay Pending Appeal. The Court has read and consid ered the Ninth Circuit's Order, as well as Defendants' Application for Immediate Vacatur or Partial Stay Pend ing Appeal, (docket no. 131, filed January 17, 2008), Plain tiffs' Opposition, and Defendants' Reply thereto. For the reasons and in the manner set forth below, the Court's Orders stand and Defendants' Application is DENIED. The temporary, partial stay is lifted (docket no. 133).
SUMMARY
In this Order, the Court concludes that its prelimi nary injunction is not affected by the Council on Environ mental Quality's (CEQ) approval of emergency alterna tive arrangements because there is no emergency. The CEQ's action is beyond the scope of the regulation and is invalid. The Navy is not, therefore, exempted from com pliance with the National Environmental Policy Act and this Court's injunction.
The Court also expresses significant concerns about the constitutionality of the President's exemption of the Navy from the requirements of the Coastal Zone Man agement Act. However, because a finding on this issue is not necessary to the result reached, the Court adheres to the doctrine of constitutional avoidance and does not resolve that issue.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Plaintiffs, a coalition of environmental protection groups and a concerned individual (led by the Natural Resources Defense Counsel (NRDC)),71 brought suit chal lenging the United States Navy's72 use of mid-frequency active (MFA) sonar during training exercises off the coast of Southern California.73 MFA sonar is a tool that has proven far more effective at detecting modern quiet- running diesel electric submarines than passive sonar. (Decl. of Capt. Martin May ¶¶ 8-10.) MFA sonar, which generates underwater sound at extreme pressure levels, has the unfortunate side effect of inflicting harm on ma rine life, up to and including death.74 (See, e.g., Decl. of Thomas Jefferson ¶ 4 and sources cited therein.)
The Navy plans to use MFA sonar during fourteen large-scale training exercises (involving various ships, submarines, amphibious vehicles, rotary and fixed-wing aircraft, and live ordinance) off the coast of southern Cal ifornia between February 2007 and January 2009. (Decl. of Luther Hajek, Ex. 1 at 2-1 to 2-24.) As of this writing, eight exercises have yet to take place. (See Defs.' Reply in Supp. of Ex Parte Application.) The Navy's own Envi ronmental Assessment (EA) reports that these activities, comprised of Composite Training Unit Exercises (COM PTUEX) and Joint Task Force Exercises (JTFEX), will result in approximately 170,000 "takes"75 of marine mam mals. (Id. at 4-46 to 4-47.) These takes are predomi nantly "Level B harassment exposures," in which marine mammals would be subjected to sound levels of between 170 and 195 decibels,76 but also include approximately 8,000 exposures powerful enough to cause a temporary threshold shift in the affected mammals' sense of hearing and an additional 466 instances of permanent injury to beaked and ziphiid whales. (Id.)
Despite these findings, the Navy concluded that its JTFEX and COMPTUEX exercises in the Southern Cali fornia Operating Area (SOCAL) would not cause a signif icant impact on the environment and on that basis de cided that the National Environmental Policy Act (NEPA) did not require it to prepare an Environmental Impact Statement (EIS). In addition, the Navy deter mined that the use of MFA sonar would not affect natu ral resources in California's coastal zone. Therefore, the Navy submitted a "consistency determination" (CD) to the California Coastal Commission (CCC) for the exer cises that did not take the planned use of MFA sonar into account. It also refused to adopt the mitigation measures the CCC subsequently determined were necessary for the Navy's actions to comply with the California Coastal Management Program (CCMP). (See Decl. of Cara Horowitz, Ex. 67 at 9.)
I. Preliminary Injunction
On March 22, 2007, Plaintiffs filed this action against Defendants, seeking declaratory and injunctive relief for Defendants' violations of NEPA, the Endangered Spe cies Act (ESA), the Administrative Procedures Act (APA), and the Coastal Zone Management Act (CZMA). On June 22, 2007, Plaintiffs moved for a preliminary injunction to enjoin the Navy's use of MFA sonar during the SOCAL exercises "until the Navy adopts mitigation measures that would substantially lessen the likelihood of serious injury and death to marine life." In August 2007, after full briefing and oral argument, this Court granted Plaintiffs' Motion for a Preliminary Injunction. Finding Defendants' mitigation measures "woefully inad equate and ineffectual," the Court concluded that Plain tiffs had demonstrated a likelihood of success on their NEPA, CZMA, and APA claims, but not their ESA claim. Particularly relevant here is the Court's finding that De fendants' failure to prepare an Environmental Impact Statement (EIS) pursuant to NEPA contracted their own scientific findings.
II. Mitigation Measures
On August 31, 2007, a panel of the Ninth Circuit Court of Appeals stayed the injunction pending appeal. Natural Res. Def. Council v. Winter, 502 F.3d 859 (2007). On November 13, 2007, another panel of the Ninth Cir cuit remanded to this Court, finding that while Plaintiffs had demonstrated a likelihood of success, the Navy's training with MFA sonar could go forward with the ap propriate mitigation measures. Natural Res. Def. Coun cil v. Winter, 508 F.3d 885 (2007). The order gave the Court until January 4, 2008 to issue a revised injunction, incorporating mitigation measures.
On November 27, 2007, a status conference was held, in which the Court ordered the parties to meet and con fer by December 3, 2007 to attempt to agree on mitiga tion measures. No stipulation was reached. Accordingly, the parties presented possible mitigation measures to the Court. On December 27, 2007, the Court toured the USS Milius at the naval base in San Diego, California, to im prove its understanding of the Navy's sonar training pro cedures and the feasibility of the parties' proposed miti gation measures. Counsel for both Plaintiffs, and Defen dants were present.
Plaintiffs proposed a number of broad measures to limit the impact of MFA sonar on marine life. These measures included: (1) a 25 nautical mile costal exclusion, (2) exclusion of the Catalina Basin, (3) exclusion of the Westfall seamount, (4) exclusion of Cortez and Tanner Banks, and (5) locating exercises to the maximum extent possible in waters deeper than 1,500 meters. Defen dants, by contrast, sought to maintain the status quo. The Navy offered to continue employing the mitigation measures outlined in the 2007 National Defense Exemp tion ("NDE"),77 as well as several additional measures. These included: (1) powering down MFA sonar by 6 dB when marine mammals approach within 1,000 meters; powering down an additional 4 dB at 500 meters; and securing MFA sonar at 200 meters; (2) employing two dedicated, and three non-dedicated, marine mammal lookouts at all times when MFA sonar is being used, and providing such lookouts with binoculars, night vision gog gles, and infrared sensors; (3) staying outside the Chan nel Islands National Marine Sanctuary, and remaining 5 nautical miles from San Clemente Island's western shore, and 3 nautical miles from its other shores; (4) ae rial monitoring for at least sixty minutes before MFA sonar exercises along the Tanner and Cortez Banks dur ing blue whale migration (July to September 2008); and (5) pre-exercise monitoring of gray whale off-shore mi gration patterns between March 7-21, 2008 and April 15- May 15, 2008.
In crafting its January 3, 2008 Order, the Court de termined that while Defendants' proposed measures were inadequate, Plaintiffs' proposed measures were too sweeping. In particular, the Court accepted Defendants' representations that the bathymetry off Southern Califor nia's shores presents unique training opportunities. (See Decl. Rear Admiral John M. Bird in Supp. of Defs.' Mem. Regarding a Tailored Prelim. Inj. at 17 (stating that MFA sonar training must be conducted at night, in low- visibility conditions, and in the varying bathymetry pre- sent in Southern California's littoral regions to be realis tic)). Accordingly, the Court did not impose additional restrictions on Defendants' training exercises at night or during low visibility conditions. The Court rejected Plain tiffs' calls for a 25 nautical mile coastal exclusion zone (as the parties had previously agreed to in Hawaii for the RIMPAC exercises), accepting Defendants' concession that the Navy could maintain a 12 nautical mile exclusion zone without comprising' the quality of its training. (Id. at 41-42 (stating that the Navy could restrict training to the defined exercise range, whose eastern boundary does not reach closer than 12 nautical miles to the coast)). For the same reason, the Court refused to preclude naval training around seamounts, near the Tanner and Cortez Banks, or in waters shallower than 1,500 meters.
Instead, the Court opted to forego broad geographical exclusions in favor of measures to promote the sighting of whales and a larger "safety zone" to prevent injurious exposure to MFA sonar. Specifically, the Court ordered the Navy to improve monitoring efforts by: instituting aerial monitoring for sixty minutes before exercises us ing MFA sonar, providing lookouts with NMFS and NOAA training, and to use existing passive acoustic mon itoring devices to the extent possible. In addition, the Navy was ordered to maintain a 12 nautical mile coastal exclusion zone; secure MFA sonar when marine mam mals were spotted within 2,200 yards; power down MFA sonar in the presence of significant surface ducting con ditions, which cause sound to travel further at higher intensities than it otherwise would; and avoid the use of MFA sonar in the geographically restricted, biologically rich Catalina Basin.
Defendants sought a stay pending appeal on January 9, 2008. On January 10, 2008, perceiving in Defendants' stay application a misapprehension of its January 3, 2008 Order, and an inadvertent omission by the Court, the Court issued a modified injunction to clarify its meaning. On January 11, 2008, Defendants' filed their notice of appeal. On January 14, 2008, the Court denied Defen dants' application for a stay pending appeal.
III. Subsequent Executive Actions
On January 15, 2008, the day after this Court denied the Navy's application for a stay pending appeal, the President issued a memorandum exempting the Navy from compliance with the Costal Zone Management Act.78 Stating that compliance with the CZMA would "under mine the Navy's ability to conduct realistic training exer cises," the President concluded that the exercises "are in the paramount interest of the United States" and ex empted the Navy from compliance. Mem. for Secretary of Defense and Secretary of Commerce, Presidential Ex emption from the Coastal Zone Management Act (Janu ary 15, 2008); Decl. Michael Eitel Ex. 18.
Also on January 15, 2008, the Council on Environmen tal Quality (CEQ), citing 40 C.F.R. § 1506.11, approved "alternative arrangements" for the Navy to comply with NEPA because "emergency circumstances" prevented normal compliance. The CEQ's letter of explanation to the Navy states that the modified injunction issued by this Court "imposes training restrictions . . . that con tinue to create a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." (CEQ Letter to Donald C. Winter at 3.) After describing parts of this Court's injunction, the CEQ states that "the inability to train effectively with MFA sonar puts the lives of thousands of Americans directly at risk. . . . Therefore, there are urgent na tional security reasons for providing alternative arrange ments under the CEQ regulations." The alternative ar rangements include: (1) providing notice to the public regarding ongoing EIS preparation; (2) a commitment to continue research measures "for continual improvement in the quality of information" on the "quantity, distribu tion, migration, and reactions of marine mammals to MFA sonar;" and (3) maintaining the "29 NDE mitiga tion measures." (Id. at 5-8.)
On the same day, citing these actions by the President and the CEQ, Defendants applied to the Ninth Circuit to vacate the injunction, arguing that the legal bases for the injunction had been eliminated. The next day, January 16, 2008, the Ninth Circuit remanded to this Court to allow it to consider the effect of the President's Order and the CEQ's alternative arrangements on the Court's preliminary injunction "and, in particular, to consider whether these legal developments merit vacatur or a par tial stay of the injunction." NRDC v. Winter, __ F.3d __, 2008 U.S. App. LEXIS 1423.
Accordingly, the Court here considers two narrow questions: (1) whether the CEQ's approval of alternative arrangements to comply with NEPA, pursuant to 40 C.F.R. § 1506.11, requires the Court to vacate or stay its injunction, and (2) whether the President's Memorandum exempting the Navy from compliance with the Costal Zone Management Act requires the Court to vacate or stay its injunction.
DISCUSSION
I. The National Environmental Policy Act (NEPA)
A. Legal Basis for CEQ's Action-40 C.F.R. § 1506.11
CEQ's approval of "Emergency Alternative Arrange ments" (in lieu of preparation of an EIS) for the Navy's use of MFA sonar in connection with the eight remaining SOCAL COMPTUEX and JTFEX is predicated solely on its purported authority to grant such relief under 40 C.F.R. § 1506.11, which provides:
Emergencies:
Where emergency circumstances make it necessary to take an action with significant environmental im pact without observing the provisions of these regula tions, the Federal agency taking the action should consult with the Council about alternative arrange ments. Agencies and the Council will limit such ar rangements to actions necessary to control the imme diate impacts of the emergency. Other actions remain subject to NEPA review.
40 C.F.R. § 1506.11. This regulation, together with other regulations "implementing the procedural provisions of NEPA," was promulgated in 1978, in response to Execu tive Order 11,991, issued by President Carter. See Pro posed Regulations for Implementing Procedural Provi sions, 43 Fed. Reg. 25230 (June 9, 1978). Prior to that time, CEQ exercised its powers only in an advisory ca pacity, without any formal rulemaking authority. See Exec. Order No. 11,514 § (3)(h), 3 C.F.R. 106 (1970 comp.).
The reputed goals of the regulations as a whole were to "make the environmental impact statement process more useful to decisionmakers and the public; and to re duce paperwork and the accumulation of extraneous background data, in order to emphasize the need to focus on real environmental issues and alternatives." Exec. Order No. 11,991 § 1, 3 C.F.R. 124 (1978) (amending sub section (h) of section (3) of Exec. Order No. 11,514). CEQ was further entrusted to "include in its regulations procedures (1) for the early preparation of environmental impact statements, and (2) for the referral to the Council of conflicts between agencies concerning the implementa tion of the [NEPA]." Id.
As required, the current regulations provide detailed procedures for the timing and preparation of an EIS, as well as for referral of interagency disagreements. See, e.g., 40 C.F.R. pts. 1502 ("Environmental Impact State ment"), 1504 ("Predecision Referrals to the Council of Proposed Federal Actions Determined to be Environ mentally Unsatisfactory"). 40 C.F.R. § 1506.11 is located at the end of part 1506, which is entitled "Other Require ments of NEPA." No definitions of the phrase "emer gency circumstances" or references thereto are con tained in 1506.11 or in any other regulatory or statutory provision.
B. 40 C.F.R. § 1506.11 Cannot Encompass the Activity at Issue In This Case Because There Are No "Emer gency Circumstances"
The Navy maintains that CEQ's grant of "Emergency Alternative Arrangements" deprives Plaintiffs of the "likelihood of success on the merits" of their NEPA claims. Therefore, there is no basis for the Court's issu ance of preliminary injunctive relief. Specifically, the Navy urges the Court to find that CEQ's "emergency" determination effectively absolves it of the requirement to prepare an EIS prior to commencing (and completing) the remaining SOCAL COMPTUEX and JFTEX. Plain tiffs counter by insisting that CEQ's actions are beyond the scope of the regulation and/or otherwise invalid.
1. CEQ's Interpretation of 40 C.F.R. § 1506.11 Is Not Entitled to Deference by This Court
The Navy repeatedly insists that CEQ's findings re garding the existence of an "emergency" warranting the provision of alternatives to the EIS process are entitled to great deference. However, although courts have a long tradition of deferring to agency interpretations and decisions in their area(s) of expertise, this deference is nuanced and qualified in several important ways.
First, it is a well entrenched principle of administra tive law that courts afford deference to an agency's rea sonable interpretation of a statute it administers, "if the statute is silent or ambiguous with respect to the specific issue. . . ." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); see also Resident Councils v. Leavitt, 500 F.3d 1025, 1034 (9th Cir. 2007) ("When relevant statutes are silent on the salient ques tion, we assume that Congress has implicitly left a void for an agency to fill . . . . [and] must therefore defer to the agency's construction of its governing statutes, un less that construction is unreasonable.") (quoting Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1169 (9th Cir. 1997) (citing Chev ron, 467 U.S. at 843-44)) (alteration in original). Second, Courts afford deference to an agency's interpretation of its own regulations unless "an alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); see also Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) (an agency's interpretation of its own regulation is "control ling" if it is not "plainly erroneous or inconsistent" with the regulation); Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1125 (9th Cir. 2007) ("Though we normally afford deference to an administrative agency's interpre tation of its own regulations, an agency's interpretation does not control, where . . . it is plainly inconsistent with the regulation at issue.") (internal quotations and citations omitted); Alaska Trojan P'ship v. Gutierrez, 425 F.3d 620, 627-628 (9th Cir. 2005).
Here, Plaintiffs do not argue that NEPA disallows exceptions for emergencies under any circumstances and, concomitantly, that CEQ's promulgation of 40 C.F.R. § 1506.11 was improper in the first instance.79 Rather, Plaintiffs challenge CEQ's application of the reg ulation to the facts of the present case, on the grounds that the term "emergency circumstances" cannot be af forded so broad an interpretation as to encompass the Navy's need to continue its long-planned, routine sonar training exercises unmitigated by this Court's order. Accordingly, the Court confines its inquiry to the issue of whether the plain language of the regulation and limited indicia of the agency's original intent compel a more lim ited interpretation than that afforded by CEQ, thus re moving its determination from deferential treatment under Shalala and Seminole Rock, supra.
a. Plain Meaning/Ordinary Usage
Plaintiffs urge that a plain reading of the regulation reveals that its "manifest purpose" is to "permit the gov ernment to take immediate remedial measures in re sponse to urgent and unforeseen circumstances not of the agency's own making. . . ." (NRDC Opp'n at 8.) Stan dard dictionary definitions and the common understand ing of the term "emergency" certainly support this read ing, as does the language of the regulation itself, which requires that the alternative arrangements be limited to those "necessary to control the immediate impacts of the emergency."80 Indeed, the California Environmental Quality Act (CEQA), which is based on NEPA, defines the term "emergency" to encompass significant, unantici pated occurrences, such as natural disasters. See Cal. Pub. Res. Code § 21060.3 ("'Emergency' means a sudden, unexpected occurrence, involving a clear and imminent danger, demanding immediate action to prevent or miti gate loss of, or damage to, life, health, property, or essen tial public services. [It] includes such occurrences as fire, flood, earthquake, or other soil or geologic move ments, as well as such occurrences as riot, accident, or sabotage.").
Notwithstanding this reality, the Navy argues that limiting the regulation's substantive and temporal scope and denying deference to CEQ's findings would be inconsistent with the few other decisions in which courts have endeavored to review whether "alterna- tive arrangements" were warranted under 40 C.F.R. § 1506.11. However, all of those cases involved circum stances of great urgency.
For example, in Valley Citizens for a Safe Environ ment v. Vest, 1991 U.S. Dist. LEXIS 21863 (D. Mass. 1991), the court upheld "alternative arrangements" which permitted the Air Force to fly C-5A transport planes into and out of Westover Air Force Base on a twenty-four hour schedule, in contravention of the terms of an operative EIS. CEQ approved the arrangements in lieu of the Air Force's preparation of a supplemental EIS (SEIS), on the basis that the modified flight schedule was essential to supply military equipment and personnel for Operation Desert Storm. 1991 U.S. Dist. LEXIS 21863 at *6-7. The Plaintiff, a non-profit citizens' association, sought to enjoin the increased flight activity until and unless an SEIS was completed. Id. at *7. In reaching its decision, the court found that CEQ and the Air Force's determination that the Middle East crisis (i.e., Iraq's invasion of Kuwait) constituted an "emergency" was a "reasonable" one, "given the military's operational and scheduling difficulties and the hostile and unpredictable nature of the Persian Gulf region." Id. at *18.
Although this case also involves military operations, it is markedly different from Valley Citizens. First and foremost, other than this Court's issuance of its injunc tion, the Navy and CEQ do not identify any changed cir cumstances (much less the presence of increased hostili ties in a specific region) that would justify invocation of 40 C.F.R. § 1506.11. (See Reply at 13-14 ("CEQ consid ered the expert evidence submitted by the Navy that the training restrictions imposed in this Court's January 3 Injunction, as modified on January 10, are likely to make anti-submarine warfare training in the exercises in question ineffective. . . .") (emphasis added); see also CEQ Letter at 4 ("[T]he Navy cannot ensure the neces sary training to certify strike groups for deployment un der the terms of the injunctive orders.") (emphasis added)). In addition, the Court's issuance of an injunc tion in this case was not a sudden or unanticipated event; the Navy has been litigating this case for over ten months and has been involved in parallel litigation for even longer. The Navy's current "emergency" is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fash ion, via the traditional EIS process or otherwise.81
The district court's decision in Crosby v. Young, 512 F. Supp. 1363 (E.D. Mich. 1981) and the D.C. Circuit's decision in National Audubon Society v. Hester, 801 F.2d 405 (D.C. Cir. 1986), are also unhelpful to the Navy's position. In each of those cases, deference was given to CEQ's "emergency" determination based on facts suggesting the need to avert imminent crises out side the agency's control. See, e.g., Crosby, 512 F. Supp. at 1380, 1386 (City's need to obtain commitment of fed eral funding for a development project by a date certain); Hester, 801 F.2d at 405-07 (prevention of extinction of California condor). These legitimate crises stand in stark contrast to the Navy's routine training exercises and are consistent with an ordinary understanding of what con stitutes an "emergency."82
b. Agency Intent at the Time of Promulgation
There is a paucity of historical information concern- ing the agency's drafting and adoption of 40 C.F.R. § 1506.11, which has never been amended from its origi nal text. In an attempt to fill this gap, Plaintiffs have proffered the declaration of Nicolas C. Yost, who served as CEQ's general counsel from 1977 until 1981 and was the "principal draftsperson" of the regulations. Mr. Yost explains that "[w]ithin the Council at the time of the adoption of the Regulations what we conceived of as an 'emergency' was something characterized by the severity of its impact and by its unexpected and imminent occur rence-for instance, a dam that was failing, with the po tential for immediate harm to both people and property." (Yost Decl. ¶ 5.) He further explains that he "would not consider the holding of a planned set of maneuvers or an unfavorable judicial ruling an 'emergency' within the meaning of 40 C.F.R. § 1506.11." (Id. at ¶ 7.)
The Navy maintains that Mr. Yost's personal opinions cannot be considered at this juncture and, in any case, are entitled to no weight. The Court agrees, in that Mr. Yost's statements, coming some 30 years after the regu lation was promulgated, are an "unreliable guide" to the agency's intent, akin to oft-criticized "subsequent legisla tive history." See Chapman v. United States, 500 U.S. 453, 464 n.4 (1991) (citing Pierce v. Underwood, 487 U.S. 552, 566-567 (1988); Quern v. Mandley, 436 U.S. 725, 736, n.10 (1978)); see also Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) ("[S]ubsequent legislative history is a 'hazardous basis for inferring the intent of an earlier Congress.'") (quoting United States v. Price, 361 U.S. 304, 313 (1960)).
Even absent consideration of the Yost declaration, the limited "regulatory history" supports a narrow, rather than a broad interpretation of the phrase "emergency circumstances." The initial, proposed version of 40 C.F.R. § 1506.11 required the agency "proposing to take" the emergency action(s) to consult with CEQ regarding alternative arrangements. See 43 Fed. Reg. 25243 (June 9, 1978) (emphasis added). However, in adopting the final regulation, the drafters changed "proposing to take" to "taking," to eliminate any inference that consultation must necessarily precede agency action. They explained the need for this change as follows:
Several commenters expressed concern that the use of the phrase "proposing to take the action" would be interpreted to mean that agencies consult with the Council before emergency action was taken. In the view of these commenters, such a requirement might be impractical in emergency circumstances and could defeat the purpose of the section. The Council concurs and substituted the phrase "taking the ac tion." Similarly, the Council amended the section to provide for consultation "as soon as feasible" and not necessarily before emergency action.
Implementation of Procedural Provisions; Final Regula tions, 43 Fed. Reg. 55988 (Nov. 29, 1978) (emphases added). This explanation clearly reflects that, at the time of the regulation's drafting, CEQ apprehended the phrase "emergency circumstances" to refer to sudden, unanticipated events, not the unfavorable consequences of protracted litigation. CEQ's contrary interpretation in this case is "plainly erroneous and inconsistent" with the regulation and, concomitantly, not entitled to defer ence.83
2. Additional Principles of Statutory Construction Preclude a Broad Reading of "Emergency Cir cumstances"
As explained above, the CEQ and Navy's interpreta tion of the phrase "emergency circumstances" to include the readily anticipated consequences of this Court's issu ance of injunctive relief is contrary to both the plain meaning of the language utilized and the drafters' origi nal intent, to the extent that said intent may be discerned from the limited regulatory record. For the reasons dis cussed directly below, the application of additional can ons of statutory construction further confirms that 40 C.F.R. § 1506.11 is inapplicable to the facts of this case, due to the lack of any bona fide "emergency."
a. The CEQ and Navy's Broad Interpretation is Contrary to NEPA and Produces Undesir able Outcomes
As Plaintiffs point out, it is well established that NEPA contains no "national security" or "defense" ex ception. See, e.g., San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1035 (9th Cir. 2006) ("There is no 'national defense' exception to NEPA . . . . The Navy, just like any federal agency, must carry out its NEPA mandate to the fullest extent possible and this mandate includes weighing the environmental costs of the [pro ject] even though the project has serious security impli cations.") (internal quotations and citations omitted) (al teration in original). Nevertheless, the CEQ's broad "emergency" determination in this case purports to cre ate precisely such an exemption. (See CEQ letter at 4 ("Therefore, there are urgent national security reasons for providing alternative arrangements under the CEQ regulations."))84
It is axiomatic that there exists a presumption against reading an exemption into a statute where Congress has not authorized one. The fact that Congress has created specific exemptions to NEPA (for military training and otherwise) in the past strongly informs the Court's reluc tance to read the regulation so broadly as to independ ently authorize CEQ to do the same, in the absence of a legitimate "emergency." See, e.g., Nat. Def. Auth. Act, Pub. L. No. 106-398 § 317, 114 Stat. 1654, 1654A-57 (2000) ("Nothing in the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or the regulations implementing such law shall require the Secretary of Defense or the Secretary of a military department to prepare a programmatic, nation-wide environmental im pact statement for low-level flight training as a precondi tion to the use by the Armed Forces of an airspace for the performance of low-level training flights."); Arizona- Idaho Conservation Act, Pub. L. No. 100-696, § 607, 102 Stat. 4571, 4599 (1988) (providing that "the requirements of section 102(2)(c) of the National Environmental Policy Act of 1969 shall be deemed to have been satisfied" in connection with specific construction on site for Mount Graham international observatory.)85 Indeed, in other cases-cited by the Navy-in which Courts absolved agencies of their NEPA obligations, the agencies were faced with conflicting Congressional mandates. See, e.g., Gulf Oil Corp. v. Simon, 502 F.2d 1154, 1157 (Temp. Emer. Ct. App. 1974) (agency action in response to "a determination by Congress in the Emergency Petroleum Allocation Act that immediate emergency action was nec essary to avoid foreseen catastrophic nationwide conse quences of a critical shortage of crude oil"); Atlanta Gas Light Co. v. Fed. Power Com., 476 F.2d 142, 150 (5th Cir. 1973) (NEPA compliance not required where direct con flict existed with agency's other statutory duties under the Natural Gas Act); Dry Color Mfrs.' Ass'n. v. Dep't of Labor, 486 F.2d 98, 108 (3d Cir. 1973) (NEP A exemption "justified by the need to accommodate the provisions of NEPA with those of the Occupational Safety and Health Act.")
Moreover, as Plaintiffs repeatedly point out, reading 40 C.F.R. § 1506.11 to permit CEQ to grant broad- sweeping exceptions to the EIS process for routine agency activity in the absence of Congressional authori zation directly conflicts with and subverts NEPA's direc tive that agencies comply with their NEPA duties "to the fullest extent possible." See 42 U.S.C. § 4332; see also 40 C.F.R. § 1500.6 ("The phrase 'to the fullest extent possi ble' in section 102 means that each agency of the Federal Government shall comply with that section unless exist ing law applicable to the agency's operations expressly prohibits or makes compliance impossible."). Courts have consistently afforded this directive an expansive inter pretation to exclude from compliance only those situa tions in which it is truly unachievable. See Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 787 (1976) ("NEPA's instruction that all federal agencies comply with the impact statement requirement-and with all the other requirements of § 102-'to the fullest extent possi ble,' 42 U.S.C. § 4332, is neither accidental nor hyper bolic."); Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir. 1971) ("We must stress as forcefully as possible that this language does not provide an escape hatch for foot dragging agencies; it does not make NEPA's procedural requirements somehow 'discretionary.'"). CEQ and the Navy's expansive reading of 40 C.F.R. § 1506.11 is there fore ultra vires to NEPA.
Such a reading also produces the absurd result of per mitting agencies to avoid their NEPA obligations by re- characterizing ordinary, planned activities as "emergen cies" in the interests of national security, economic sta bility, or other long-term policy goals. See, e.g., Ariz. State Bd. for Charter Sch. v. U.S. Dep't of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006) ("[W]ell-accepted rules of statutory construction caution us that 'statutory inter pretations which would produce absurd results are to be avoided.'") (quoting Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004)); Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 900 (9th Cir. 2005) ("A . . . consideration in statutory interpretation is practicality, or put another way, the avoidance of an absurd result.") (citation omit ted).86 Assuming arguendo that CEQ approves the re quested alternative arrangements in such circumstances, as it has here, what was conceived as a narrow regulatory exception to the EIS preparation requirements would swallow those requirements whole. This cannot be con sistent with Congressional intent.
b. The CEQ and Navy's Broad Interpretation Raises Serious Constitutional Questions
Via its January 15, 2008 letter, CEQ purports, in the Navy's own language, to issue "prospective alternative arrangements for compliance with NEPA," given "the emergency circumstances posed by the Navy's need to conduct its MFA sonar training in light of the Court's injunction . . . ." (Reply at 21.) As discussed above, these "alternative arrangements" encompass, inter alia, a series of mitigation measures that were duly consid ered and rejected as inadequate by this Court. See supra page 5.
To this end, there is a serious question as to whether CEQ, an executive body, is sitting in review of a decision of the judicial branch (and, in effect, crafting its own, alternative injunction). As discussed in section II.B.2, infra, activity of this nature raises serious constitutional concerns under the Separation of Powers doctrine. Nonetheless, this Court must endeavor to avoid a finding of unconstitutionality. Meinhold v. U.S.. Dep't of Def., 34 F.3d 1469, 1476 (9th Cir. 1994) ("When the constitutional validity of a statute or regulation is called into question, it is a cardinal rule that courts must first determine whether a construction is possible by which the constitu tional problem may be avoided.") (citing New York City Transit Auth., 440 U.S. 568, 582 & n.22 (1979); see also Ma, 257 F.3d at 1106 ("The Supreme Court has long held that courts should interpret statutes in a manner that avoids deciding substantial constitutional questions.") (citing DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)) (addi tional citations omitted).
In affording 40 C.F.R. § 1506.11 a narrow interpreta tion, the Court may avoid addressing the question of whether the agency's action is constitutional. The Court concludes that CEQ's application of the regulation to this case was improper in the first instance and that the Navy remains subject to the traditional NEPA requirements which the Court considered at length in its August 2007 and January 2008 orders granting preliminary injunctive relief.
II. The Coastal Zone Management Act (CZMA)
A. Statutory Presidential Exemption Provision
The CZMA provision on which the President's exemp tion relies reads:
After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, United States Code . . . that a spe cific Federal agency activity is not in compliance with [the approved state management program], and cer tification by the Secretary [of Commerce] that media tion under subsection (h) is not likely to result in such compliance, the President may . . . exempt from compliance those elements of the Federal agency ac tivity that are found by the Federal court to be incon sistent with an approved State program if the Presi dent determines that the activity is in the paramount interest of the United States. . . .
16 U.S.C. § 1456(c)(1)(B). From its plain language, the provision allows the President to exempt certain aspects of federal agency activities from compliance with the Cal ifornia Costal Management Plan (CCMP) if doing so is in the "paramount interest" of the country, but only after a court first determines that the activities at issue fail to comply with the plan.87 Thus, the President's power to exempt does not spring into being until a federal court has weighed the question of whether an agency activity meets the standard of the CCMP, and concluded that it does not.88
The Navy argues that the President has followed the letter of the law. The Court agrees. The Court's injunc tion is an interlocutory order appealable pursuant to 28 U.S.C. § 1292(a)(2). The President's Memorandum granting the exemption specifically states that the Secre tary of Commerce "certified that mediation under section 1456(h) is not likely to result in the Navy's compliance with section 1456(c)(1)(A)." The President then found that COMPTUEX and JTFEX are in the "paramount interest" of the United States. Accordingly, the Presi dent's exemption complies with 16 U.S.C. § 1456(c)(1)(B).
B. Constitutionality of the Presidential Exemption Provision As Applied
Plaintiffs argue that the application of the statute in this case is unconstitutional. They contend that the Pres ident "simply disagreed with this Court's determination that the modified preliminary injunction would protect national security interests while also minimizing harm to marine mammals." (CCC Opp'n at 5.) Since the grounds for President's exemption are the same as the grounds for the Court's injunction, the exemption "reviews and overturns an order of an Article III Court." (Id. at 6.) The Navy counters that the President's exemption ex pressly accepts the Court's finding of noncompliance with the CZMA. The President's Memorandum exempting the Navy's exercises does not state that the Court's find ing was wrong, the Navy argues, but rather effectively changes the underlying law by determining that compli ance is not possible given the President's assessment of the nation's "paramount interest."
The Navy argues that the President's exemption is not subject to challenge because the President is not an "agency" within the meaning of the Administrative Pro cedure Act. (Defs.' Reply at 9.) The Court agrees that the President is not an agency. U.S. Const., art. II, § 1. Nevertheless, the President's action is subject to review for its constitutionality. Franklin v. Massachusetts, 505 U.S. 788, 801 (1992). The Court likewise agrees that it may not review the President's determination of what is or is not "in the paramount interests of the United States." Kasza v. Browner, 133 F.3d 1159, 1173-74 (9th Cir. 1998) (finding that under RCRA, Congress explicitly left the determination of "the paramount interest" to the President). Rather, the Court undertakes here to decide whether it is required to vacate its injunction because of the President's exemption, not whether the President's determination of the paramount interest was justified.
1. Article III Limits on Executive Revision of Judi cial Decisions
It is axiomatic that the decision of an Article III court is subject to the review only of a higher court. Hay burn's Case, 2 U.S. (2 Dall.) 408 (1792), has long stood "for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) (Scalia, J.). At issue in Hayburn's Case was the Invalid Pensioners' Act of 1792, which called upon Article III judges to review the pension applications of disabled Revolutionary War veterans. The judges were to submit qualified veterans' names to the Secretary of War. The Secretary of War would then place the quali fied veterans on the pensioners' list, unless he suspected "imposition or mistake," in which case the veteran would not be placed on the list. Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro, Hart & Wechslers's The Federal Courts and the Federal System 91 (5th ed. 2003). The judges refused this commission, reasoning that the statute allowed executive revisions of judicial decisions, an unconstitutional encroachment on the judicial power vested in the courts by Article III. It was reasoned that "by the Constitution, neither the Secretary of War, nor any other Executive officer, nor even the Legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court." Hayburn's Case at 410.
Although the political branches may neither review the decision of the courts, nor direct the results of pend ing cases, United States v. Klein, 80 U.S. (13 Wall.) 128 (1872), Congress may change or amend the underlying law, even if this would change the outcome in pending litigation. Plaut, 514 U.S. at 214; see also Stop H-3 Ass'n v. Dole, 870 F.2d 1419, 1432 (9th Cir. 1989) (citing Friends of the Earth v. Weinberger, 562 F. Supp. 265, 270 (D.D.C. 1983) ("Through the passage of legislation which governs the lawsuit, Congress can effectively moot a con troversy notwithstanding its pendency before the courts")). In Plaut, the Supreme Court held that a stat ute requiring the courts to reopen final judgments in civil lawsuits violated the separation of powers. Justice Scalia explained,
The record of history shows that the Farmers crafted this charter of the judicial department [Article III] with and expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy-with an understanding, in short, that 'a judgment conclusively resolves the case' because 'a "judicial Power" is one to render dispositive judgments.'
514 U.S. at 218-19 (citing Frank Easterbrook, Presiden tial Reivew, 40 Case W. Res. L. Rev. 905, 926 (1990)). Later, in Miller v. French, Justice O'Connor explained that "[p]rospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law." 530 U.S. 327, 344 (2000). As pro spective relief requires "continuing supervisory jurisdic tion by the court," such relief "may be altered according to subsequent changes in the law." Id. at 347.
2. Whether the President's Actions Constitute Exe- cutive Revision
The question before the Court, then, is whether the President's exemption in this case amounts to an execu tive revision of a judicial decision. The Court must ask: Did the President's exemption effectively change or amend the underlying law, or does it either direct the result or constitute a review of the Court's decision in this case? If the former, there would be no constitutional problem. If the latter, however, the exemption violates Article III by encroaching on the judicial power. As Con gress has no power to direct the result in an ongoing case, nor to review a decision of an Article III court, it cannot delegate such power to the President. See Plaut, 514 U.S. at 219.
The Navy directs the Court's attention to a number of cases which it claims have "firmly held" that statutes authorizing, and presidential actions pursuant to, presi dential exemption provisions do not raise Article III con cerns. The Court strongly disagrees with this character ization of existing case law. None of the cases cited by the Navy consider the constitutional question. For exam ple, the Navy points to Weinberger v. Romero-Barcelo, which discusses the presidential exemption provision of the Federal Water Pollution Control Act (FWPCA). 456 U.S. 305 (1982). The issue in Romero-Barcelo was whether the district court had the discretion to issue any lesser remedy than injunctive relief where the Navy had failed to timely obtain permits for the discharge of mate rials into the waters around the Puerto Rican Island of Viecques [sic]. The Supreme Court noted that the exer cise of such discretion would not contradict, but instead complement, the presidential exemption provision in the statute: "We read the FWPCA as permitting the exercise of a court's equitable discretion . . . to order relief that will achieve compliance with the Act. The [presidential] exemption serves a different and complementary pur pose, that of permitting noncompliance by federal agen cies in extraordinary circumstances." Id. at 319 (empha sis added).
The case is distinguishable. The President had not issued an exemption in Romero-Barcelo; thus the consti tutionality of such an exemption was not before the Court. Rather, the Supreme Court was deciding the proper scope of the district court's discretion under the FWPCA. Responding to arguments that this interpreta tion of the FWCPA would contradict the standards laid out in the act itself, particularly the presidential exemp tion, the Supreme Court explained, "Reading the statute to permit the exercise of a court's equitable discretion in no way eliminates the role of the exemption provision in the statutory scheme." Id. The district court could for mulate relief to ensure compliance with the FWPCA; if "extraordinary circumstances" subsequently arose, the President had the power, "believing paramount national interests so require, to authorize discharges which the District Court has enjoined." Id.
In Kasza v. Browner, the district court found that the Environmental Protection Agency (EPA) had violated the public disclosure requirements of Resource Conser vation and Recovery Act (RCRA) with respect to hazard ous waste disposal on a military base. 133 F.3d 1159, 1173. The President, concluding that the relevant docu ments were classified, exempted them from disclosure under RCRA § 6001(a).89 Id. The district court then de clared the matter moot. Id. On appeal, the plaintiff did not raise a constitutional question. Instead, the plaintiff made the limited argument that the statute allowed the President to exempt an agency from specific statutory provisions, to exempt certain documents based on their classified status. The Ninth Circuit disagreed, noting that the language stated the President could exempt an agency from compliance with any RCRA "requirement.90 Id.
Here, two aspects of the President's exemption ren der it constitutionally suspect. First is the timing. This Court originally issued an injunction halting the Navy's training exercises in August 2007. The Court's August 2007 Order was an appealable order; thus, under the terms of 16 U.S.C. § 1456(c)(1)(B), the President could have acted at that time to exempt the Navy's training exercises. The Navy apparently did not seek an exemp tion at that time, instead seeking relief from the Ninth Circuit. It was only after the case was remanded to this Court, and this Court issued its modified injunction and refused the Navy's request for a stay, that the Navy sought an exemption. At oral argument, the Navy ex plained that it did not need to seek a presidential exemp tion sooner, because it has heretofore been able to con tinue its training unaltered and unfettered by this Court's rulings. This strikes the Court as the inter- branch equivalent of forum shopping: So long as the Navy could manage to continue unobstructed, it would consent to appear before this Court and before the Ninth Circuit. Only once the Navy found it could no longer avoid this Court's injunction did it seek more favorable review from the President.91 Clearly, this exemption does not change the underlying law. Rather, the exemp tion appears to strip the Court of its ability to provide effective relief.
Second is the absence of any considerations other than those already weighed by the Court. The Presi dent's Memorandum makes it fairly clear that there are no "extraordinary circumstances" (as contemplated in the Romero-Barcelo dictum) arising after the Court's injunction was issued; instead, the President appears to have re-weighed the equities, and come to a different conclusion. The President's exemption, therefore, ren ders the Court's opinion advisory. If the Court has sided with the Navy and approved the Navy's mitigation plan in its entirety, then it appears that the President would have acquiesced to its ruling. The Navy's plan would have been bolstered by receiving a judicial stamp of ap proval. Here, however, the Court accepted only some of the Navy's measures, and imposed others the Navy finds burdensome. In response, the President deemed compli ance impossible. This leads the Court to the conclusion that its jurisdiction over this case has been illusory: the Court never really had the power to "conclusively resolve the case," as the judicial power requires.
Courts generally defer to the Executive Branch in matters of national security, particularly where the mat ter in question is "a sensitive and inherently discretion ary judgment call [and] is committed by law to the appro priate agency of the Executive Branch." Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988) (deferring to mili tary's decision not to grant security clearance to openly gay woman). See also Orloff v. Willoughby, 345 U.S. 83 (1953) (stating that the Army's decision not to award commission to, or alternatively to discharge, a medical specialist is not reviewable). This deference is an ac knowledgment of the distinct roles of the Judicial Branch and the Executive Branch in our constitutional system of government.
This deference must be tempered, however, by "[t]he established principle of every free people . . . that the law shall alone govern; and to it the military must always yield." Dow v. Johnson, 100 U.S. 158, 169 (1880) (Field, J.). Deference therefore does not mean a court must abjure judicial review whenever a party raises the spec ter of national security.92 Absent judicial review, there would be no independent means of ensuring the continu ing vitality of the bedrock "doctrine that the military should always be kept in subjection to the laws of the country to which it belongs." Id. Accordingly, through out the course of this litigation, the Court has deferred to the Navy's representations of the interests of national security, while avoiding using deference to create a judi cial exemption from the nation's environmental laws.
III. The Court Need Not Decide the Constitutional Ques tion
Notwithstanding its concerns about the constitution ality of the President's exemption in this case, the Court need not decide that issue in order to uphold the injunc tion. See supra Section (I)(B)(2)(b) (discussing the doc trine of constitutional avoidance). The Court is satisfied that its injunction stands firmly on NEPA grounds. A federal agency may comply with NEPA by completing an EIS, or by issuing an EA supporting a Finding of No Significant Impact (FONSI). Alternatively, an agency may avoid the requirement to prepare an EIS by adop ting mitigation measures sufficient to eliminate any sub stantial questions over the potential for significant im pact on the environment. Nat'l Parks & Conservation Ass'n, 241 F.3d 722, 733-34 (9th Cir. 2001) ("In evalua ting the sufficiency of mitigation measures, we consider whether they constitute an adequate buffer against the negative impacts that may result from the authorized activity. Specifically, we examine whether the mitigation measures will render such impacts so minor as to not warrant an EIS."). Here, the Navy has not completed an EIS; the Court found its EA and FONSI to be inade quate. The mitigation measures issued on January 3, 2008, as modified January 10, 2008, are necessary to eliminate substantial questions about environmental im pacts of the Navy's exercises. Unless it implements these mitigation measures, the Navy may not continue with its training exercises.
IV. A Stay Pending Appeal Remains Unwarranted
When considering whether to issue a stay pending appeal, the district court must consider the following factors: "(1) whether to stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Arturovic v. Rison, 784 F.2d 1354, 1355 (9th Cir. 1986); Fed. R. Civ. P. 62(c). Alternatively, the court may grant a stay if the party seeking the stay "demonstrates . . . that serious ques tions are raised and the balance of hardships tips sharply in his favor." Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1158 (9th Cir. 2006).
Here, the Court has concluded that the injunction stands firmly on NEPA grounds. The Navy has failed to demonstrate that it is likely to succeed on the merits on appeal. In addition, as the Court noted in its January 14, 2008 Order Denying Defendant's Motion for Stay Pend ing appeal, "the imposition of these mitigation measures will require the Navy to alter and adapt the way it con ducts anti-submarine warfare training-a substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objec tives. See, e.g., Jan. 3, 2008 Order at 9 and evidence cited therein." There is no evidence that, absent a stay, the Navy will suffer irreparable injury. Accordingly, this factor weighs against the imposition of a stay.
By contrast, if the Court were to issue a stay, the harm to Plaintiffs would be substantial. The Navy has al ready completed six training exercises and will complete eight more in the next eleven months. It is likely that the exercises at issue could be completed, rendering moot months of litigation. Having prevailed twice before this Court, and once before the Ninth Circuit, Plaintiffs would nonetheless obtain no remedy.
Finally, there are two aspects to public interest in this case: the public interest in having a well trained Navy for the purpose of national defense and the public inter est in the protection and maintenance of coastal re sources, particularly marine mammals. If the court were to grant the stay sought by Defendants, the training ex ercises at issue in this suit would go forward at the ex pense of coastal resources. By leaving the injunction in place, the Navy may continue with its training exercises, while limiting negative effects on marine life. Accord ingly, the Court is satisfied that the public interest weighs against the issuance of a stay.
For the same reasons, the Court cannot conclude that Defendants have raised "serious questions" and that the balance of hardships tips sharply in their favor. The Court's decision here rests on narrow statutory grounds; the constitutional issue, which does raise substantial questions, was avoided. Furthermore, the Navy may continue with its training exercises while its appeal is pending. The Court therefore does not conclude that the balance of hardships tips sharply in Defendants' favor. Accordingly, Defendant's request for a stay pending ap peal is DENIED.
CONCLUSION
The Navy's Ex Parte Application, docket no. 131, is denied in its entirety. The temporary partial stay docket no. 133, is lifted.
Dated this 4th day of February 2008.
/s/ FLORENCE MARIE COOPER
FLORENCE MARIE COOPER
United States District Court Judge
70 We note that the Navy had already agreed to employ the 1,000 meter, 500 meter and 200 meter safety zones before the district court issued its preliminary injunction order. See Dec. 14, 2007 Bird decl. ¶ 58.
Consistent with the Deputy Secretary of Defense' January 23, 2007 National Defense Exemption from the Requirements of the Marine Mammal Protection Act, the preliminary injunction exempts the Navy from the 2,200 yard "shutdown" requirement where the detected marine mammal is a dolphin or a porpoise and it appears that the do lphin or porpoise is intentionally following the sonar-emitting naval vessel in order to play in or ride the vessel's bow wave. See Jan. 10, 2008 Dist. Ct. Order. This exemption shall remain in effect.
71 Plaintiffs (hereinafter referred to as "Plaintiffs" or "NRDC") are: the NRDC, the International Fund of Animal Welfare, Cetacean Society International, League for Costal Protection, Ocean Futures Society, and Jean-Michel Cousteau. The California Costal Commission (CCC) has intervened.
72 Defendants (hereinafter referred to as "Defendants" or "the Navy") are: Donald C. Winter, Secretary of the Navy; the United States Department of the Navy; Carlos M. Gutierrez, Secretary of Commerce; the National Marine Fisheries Service (NMFS); William Hogarth, Assistant Administrator for Fisheries, National Oceano graphic and Atomospheric Administration (NOAA); and Vice Admiral Conrad C. Lautenbacher, Jr., Administrator, NOAA.
73 This case is one in a series challenging the Navy's use of active sonar in its training exercises. In 2005, the NRDC filed suit challenging the sufficiency of the Navy's compliance with environmental laws, with respect to its sonar use. Natural Res. Def. Council v. Winter, CV 05- 7513 FMC (FMOx) (C.D. Cal.). That case is pending.
In June 2006, the same plaintiffs filed suit against the same defen dants, seeking to enjoin the Navy from using MFA sonar during its Rim of the Pacific (RIMPAC) war games. Natural Res. Def. Council v. Winter, CV 06-4131 FMC (JCx) (C.D. Cal.). Following this Court's order granting Plaintiffs' application for a temporary restraining order, the parties entered into a settlement agreement. Id., Temporary Re straining Order (July 3, 2006). Among other measures, the Navy agreed to: (1) use aircraft and passive acoustic sonar to aid in spotting marine mammals; (2) abstain from using MFA sonar in the Northwest ern Hawaiian Islands Marine National Monument, or within 25 nautical miles thereof; (3) limit use of MFA sonar to anti-submarine warfare training exercises; and (4) publicize the NMFS's stranding hotline telephone number to ensure public awareness. Id., Settlement Agree ment at 3-4 (July 7, 2006).
In 2007, the California Costal Commission (CCC) (intervenor in the present case) filed suit against the Navy. That suit has been stayed pending resolution of the appeal in this case. Cal. Coastal Comm'n v. U.S. Dep't of the Navy, CV 07-1899 FMC (FMOx) (C.D. Cal.).
74 The tension between military preparedness and environmental protection has received a great deal of scholarly attention of late. E.g., Hope Babcock, National Security and Environmental Laws: A Clear and Present Danger? 25 Va. Envtl. L.J. 105, 107 (2007) ("The events of 9/11 have also brought into sharp focus a conflict that this country has not witnessed since the Cold War: the clash between the safety and continuation of the Republic and other values we hold dear, among them a healthy environment."); Colonel E.G. Willard, Lt. Col. Tom Zimmerman & Lt. Col. Eric Bee, Environmental Law and National Security: Can Existing Exemptions in Environmental Laws Preserve DoD Training and Operational Prerogatives without New Legisla tion?, 54 A.F. L. Rev. 65 (2004) (discussing ways to address the mili tary's growing concerns "in recent years about the impacts of growth and environmental requirements on training and operations"); Nancye L. Bethurem, Environmental Destruction in the Name of National Security: Will the Old Paradigm Return in the Wake of September 11?, 8 Hastings W.-Nw. J. Envtl. L. & Pol'y 109, 110 (2002) (discussing the Cold War calculation that the military preparedness was worth its price in concomitant environmental damage); Stephen Dycus, Osama's Submarine: National Security and Environmental Protection after 9/11, 30 Wm. & Mary Envtl. L. & Pol'y Rev. 1 (2005) (discussing efforts to amend environmental laws on national security grounds).
75 The term "take," as defined in the Endangered Species Act, means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).
76 Decibels are a logarithmic measurement, such that an increase of 10 dB is equivalent to a tenfold increase in acoustic energy. To put these sound levels in perspective, OSHA requires hearing protection to be used where workers are exposed to a sound level of 90 dB for eight hours or 110 dB for as little as thirty minutes. 29 C.F.R. § 1910.95(a).
77 Defendants have repeatedly described the NDE as laying out "29 mitigation measures." In actual effect, the NDE consists of four basic measures: (1) personnel training (providing approved Marine Species Awareness Training materials for lookouts and commanding officers), (2) on-deck lookouts, armed with binoculars or night vision goggles, to watch for marine mammals, (3) operating procedures to ensure that any sightings of marine mammals are communicated up the chain of command, so that MFA sonar is powered down when a marine mammal approaches within 1,000 yards, 500 yards, and "secured" (shut- down) at 200 yards, and (4) coordination and reporting procedures. (January 23, 2007 Mem. from Deputy Sec'y of Def. to Sec'y of the Navy regarding Nat'l Def. Exemption.) In reality, the fourth cate-gory of "mitigation measure" does not mitigate actual harm to marine mam mals but assists the Navy and the NMFS in determining the impacts of its exercises. The Court also notes that the NDE now is effect in the 2007 NDE , and not the NDE issued on June 30, 2006 that is also part of the record.
78 The Memorandum reads in its entirety:
By the authority vested in me as President by the Constitution and the laws of the United States, including section l456(c)(1)(B) of title 16, United States Code, and to ensure effective and timely training of the United States naval forces in anti-submarine war fare using mid-frequency active sonar:
I hereby exempt from compliance with the requirements of sec- tion 1456(c)(1)(A) of title 16 (section 307(c)(1)(A) of the Coastal Zone Management Act) those elements of the Department of the Navy's anti-submarine warfare training during Southern California Operating Area Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Exercises (JTFEX) involving the use of mid- frequency active sonar. These exercises are more fully described in the Environmental Assessment/Overseas Environmental Assess ment prepared for the Commander, United States Pacific Fleet, dated February 2007.
On January 3, 2008, as modified January 10, 2008, the United States District Court for the Central District of California deter mined that the Navy's use of mid-frequency active sonar was not in compliance with section 1456(c)(1)(A), and issued an order that is appealable under section 1291 or 1292 of title 28, United States Code. On January 11, 2008, the Secretary of Commerce made a written request that the Navy be exempted from compliance with section 1456(c)(1)(A) in its use of mid-frequency active sonar dur- ing COMPTUEX and JTFEX. As part of this request, the Secretary of Commerce certified that mediation under section l456(h) is not likely to result in the Navy's compliance with section 1456(c)(1)(A).
I hereby determine that the COMPTUEX and JTFEX, including the use of mid-frequency active sonar in these exercises, are in the paramount interest of the United States. Compliance with section 1456(c)(1)(A) would undermine the Navy's ability to conduct realis tic training exercises that are necessary to ensure the combat effectiveness of carrier and expeditionary strike groups. This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national security.
(Signed) George W. Bush
Mem. for Secretary of Defense and Secretary of Commerce, Presiden tial Exemption from the Costal Zone Management Act (January 15, 2008).
79 At one point in their papers, Plaintiffs suggest that CEQ is invested with less than full rulemaking authority because its rulemaking power is derived from an executive order rather than a Congressional dele gation, but do not elaborate further or request that the Court invalidate 40 C.F.R. § 1506.11 on its face. But see Robert Orsi, Emergency Exceptions from NEPA: Who Should Decide?, 14 B.C. Envtl. Aff. L. Rev. 481, 500-501 (Spring 1987) (suggesting that "[b]y promulgating an emergency exemption which may allow non-compliance with the EIS requirement, CEQ may have gone beyond the scope of the authority granted it by executive order 11,991 . . . .")
80 For example, the online version of the Oxford English Dictionary defines emergency as "[t]he arising, sudden or unexpected occurrence (of a state of things, an event, etc.)." Oxford English Dictionary On- line, available at http://dictionary.oed.com/. The Black's Law Dictio nary entry for "emergency circumstances" cross-references "exigent circumstances," which include "[a] situation that demands unusual or immediate action and that may allow people to circumvent usual procedures, as when a neighbor breaks through a window of a burning house to save someone inside." Black's Law Dictionary 260, 562 (8th ed. 2004).
81 The Navy itself makes much of the fact that it commenced the process for preparation of an EIS for the "SOCAL Range Com- plex" as early as December of 2006. See 71 Fed. Reg. 76639 (December 21, 2006). As the decision to prepare an EIS necessarily involved a determination that the Navy's pre-planned training activities might have a "significant environmental impact," the Navy should/could have consulted with CEQ about the need for "alternative emergency ar rangements" at that juncture (and avoided this litigation altogether). Counsel conceded this point at oral argument, noting that, while the Navy could have sought alternative arrangements earlier, it elected to "proceed cautiously."
82 At least one scholar has found fault with the Crosby decision to the extent that it affords deference to CEQ's findings in an area (economic planning and development) outside of its expertise. See Orsi, supra note 9, at 506-507 (suggesting that "no court should accord substantial deference to CEQ's decisions on whether an emergency has occurred, unless the circumstances bringing about the emergency are environ mental in nature.").
83 Plaintiffs also argue that CEQ's interpretation and findings are entitled little or no deference because they arise out of an informal, quasi-judicial proceeding, as opposed to formal rulemaking. See, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). However, because this case involves an agency's informal interpretation of its own regula tions, rather than the statute it administers, Skidmore is inapplicable. See, e.g., Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006) ("Under Skidmore, an agency's interpretation of a statute that is not reached through the normal notice-and-comment procedure does not have the force of law and it not entitled to Chevron deference. But where an agency interprets its own regulation, even if through an informal process, its interpretation . . . is controlling . . . unless plainly erroneous or inconsistent with the regulation.") (internal quota tion marks and citations omitted).
84 The Navy insists that 40 C.F.R. § 1506.11 affords an "alternative" to rather than "exemption" from NEPA compliance. However, this distinction is largely academic, as 40 C.F.R. § 1506.11 clearly operates to exempt agencies from the usual rigors involved in the preparation of an EIS, which forms the "heart" of NEPA. See, e.g., Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d 1368, 1374-75 (10th Cir. 1980) ("At the heart of NEPA is § 102(2)(C) and its mandate that, under specified circum stances, federal agencies must prepare an Environmental Impact Statement."); Sierra Club v. Adams, 578 F.2d 389, 392-93 (D.C. Cir. 1978) ("Section 102(2)(C) of the statute, 42 U.S.C. § 4332(2)(C) (1970), which requires a 'detailed statement' of the environmental impacts of, and alternatives to, various federal actions, has been aptly described as 'the heart of NEPA . . . .'") (citation omitted).
85 Of course, the Court does not mean to suggest that unforseen events (such as foreign invasion or escalation of hostilities) implicating national security cannot be "emergencies" under 40 C.F.R. § 1506.11.
86 By means of example, Plaintiffs posit that CEQ "could declare an 'emergency' to expedite timber leasing on the theory that the cut is necessary to eliminate future fire hazards; or to expedite oil and gas leasing in protected preserves on the theory that additional energy production is a national 'emergency.'" (NRDC Opp'n at 14.)
87 A number of environmental laws contain presidential exemption provisions. None of these provisions, however, include the requirement that the President must wait until after a district court has found an agency not to be complying with the law before issuing the exemption. E.g., the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1323 ("The President may exempt any effluent source of any depart ment, agency, or instrumentality in the executive branch from compli ance with any such a requirement if he determines it to be in the paramount interest of the United States to do so."); the Clean Air Act (CAA), 42 U.S.C. § 7418(b) ("The President may exempt any emission source of any department, agency, or instrumentality in the executive branch from compliance with such a requirements if he determines it to be in the paramount interest of the Untied States to do so . . . . The President shall report each January to the Congress all exemptions from the requirements of this section . . . together with his reason for granting each such exemption."). See also similar provisions in the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6961(a); the Safe Water Drinking Act, 42 U.S.C. § 300h-7; the Noise Control Act, 42 U.S.C. § 4903(b); and the Power Plant and Industrial Fuel Act of 1978, 42 U.S.C. § 8373.
88 The provision does not compel any action by the court, to whose final judgment, decree, or appealable order the President's exemption responds. Instead, the federal agency whose activities are ruled im proper under the state management plan can seek from the President an exemption from the parts of the law with which it has been found not to comply. The findings of noncompliance stands, but the court's remedy is vitiated by the presidential exemption. This requirement that the President must wait until a court renders a decision raises the question whether the provision, on its face, unconstitutionally requires district court to render non-binding advisory opinions. Because Plaintiffs attack the statute as applied, however, the Court need not consider its facial constitutionality.
89 The President declared: "I hereby exempt the Air Force's operat ing location near Groom Lake, Nevada from any . . . provi- sion respecting control and abatement of solid waste or hazardous waste disposal that would require the disclosure of classified informa tion . . . to any unauthorized person." Id.
90 The other cases to which the Navy cites do not address the question of the constitutionality of either a statutory provision authorizing a presidential exemption or a specific application of such an exemption. See Hancock v. Train, 426 U.S. 167 (1976) (mentioning presidential exemption as part of the CAA's statutory scheme); California v. Dep't of the Navy, 624 F.2d 885, 887 n.2, 889 (mentioning the availability of an exemption in the CAA and noting that the Navy had not sought one); Natural Res. Def. Council v. Watkins, 954 F.2d 974 (4th Cir. 1992) (noting that, if national security concerns arose, the Department of Energy could seek a presidential exemption from the requirements of the CWA to allow effluent discharge from a nuclear reactor).
91 Again, this Court and the Ninth Circuit have expended consider able judicial resources in the five months since the first injunction was issued. Given that no new "extraordinary circumstances" appear to have arisen, seeking the presidential exemption in August 2007 would have saved the courts considerable time and effort. See supra note 11.
92 In Laird v. Tatum, for example, the Supreme Court held that a suit by civilians seeking redress for the chilling effect of the Army's intelligence gathering program did not present a justiciable controversy because of the absence of a specific present or specific future harm. 408 U.S. 1 (1972). This holding notwithstanding, the Court explained that it had not abandoned its "traditional insistence on limitations on mili tary operations peacetime. . . . [T]here is nothing in our Nation's his tory or in this Court's decided cases . . . that can properly be seen as giving any indication that actual or threatened injury by reason of un lawful activities of the military would go unnoticed or unremedied." Id. at 15-16.
APPENDIX D
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. 8:07-cv-00335-FMC-FMOx
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., DEFENDANTS
[Filed: Jan. 10, 2008]
MODIFIED PRELIMINARY INJUNCTION
Pursuant to the Court's Order Issuing Modified Pre liminary Injunction (docket no. 102) issued January 10, 2008, the Court hereby order the Navy to immediately implement the following mitigation measures:
1. 12 Nautical Mile Coastal Exclusion Zone
The Navy shall maintain a 12 nautical mile exclusion zone from the California coastline at all times. The great weight of scientific evidence points to avoidance of marine mammal habitat as the most effective means of minimizing sonar-related injury to marine mammals. E.g., Supplemental Decl. Robin William Baird ("Baird Supp'l Decl.") ¶¶ 5, 7-8; Supplemental Decl. Edward Parsons ("Parsons Supp'l Decl.") ¶ 10; T. Agardy, et al., A Global Scientific Workshop on Spacio-Temporal Management of Noise: Report of the Scientific Work shop, Pls.' Ex. 24. From the evidence presented to the Court in connection with the remand order, it appears to the Court that the exclusion of a 12 nautical mile zone adjacent to the coastline is both practicable and reason ably effective. The Navy adhered to a 25 nautical mile exclusion zone for its Rim of the Pacific (RIMPAC) ex ercises off the coast of Hawaii. Decl. Rear Admiral John M. Bird ¶ 46e (hereinafter "Bird Decl."). In addition, the Navy operated under a 2006 National Defense Ex emption ("NDE I") that included a 12 nautical mile coastal exclusion zone. Id. Although the Court is cogni zant of the high density of rich marine life within 25 nau tical miles of the California coastline, it appears from the evidence before the Court that a coastal exclusion of that size would unduly hamper the Navy's training ef forts. Accordingly, the Court deems the 12 nautical mile exclusion zone appropriate, in that the Navy has previ ously acknowledged its practicability and it would bar the use of MFA sonar in a significant portion of impor tant marine mammal habitat.1
2. 2200 yard MFA Sonar Shutdown
The Navy shall cease use of MFA sonar (either ves sel-based or aircraft-based sonobuoys or active dipping sonar) when marine mammals are spotted within 2200 yards (approximately 2000 meters). The Court is per suaded that the 1000 yard/500 yard/200 yard scheme proposed by the Navy is grossly inadequate to protect marine mammals from debilitating levels of sonar expos ure. Bird Decl. ¶ 46f. A number of studies indicate that sonar injures marine mammals not only via acoustic harassment, but by panic-induced rapid diving or sur facing, which leads to decompression sickness (i.e., "the bends"). Compare Bird Decl. ¶ 39 to Supplemental Decl. David E. Bain ¶ 7 (hereinafter "Bain Supp'l Decl."); Pls.' Supplemental Exs. 5, 6 (scientific articles detailing "ac ute embolic disease" and other bubble-induced sickness in marine mammals, caused by sound exposure); Par sons Decl. ¶ 5. Indeed, scientists have observed flight responses by marine mammals during naval exercises at distances as great as 22 kilometers (in the case of killer whales) or even 40 kilometers (Dall's porpoises). Bain Supp'l Decl. ¶¶ 12-13. The Court therefore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-re lated consequences, it represents a minimal imposition of the Navy's training exercises.
This mitigation measure may be discontinued (as de scribed in NDE II) where the marine mammals at issue are dolphins or porpoises, and it appears that the dol phins or porpoises are intentionally following the naval vessel in order to play in or ride the vessel's bow wave.
3. Monitoring
a. Pre-Exercise Monitoring: Each day in which MFA sonar is to be used, the Navy shall monitor for the presence of marine mammals for 60 minutes before employing MFA sonar. If marine mammals are detected within 2200 yards, the Navy will wait until: (1) the mar ine mammals are seen to leave the vicinity, or (2) the MFA sonar-employing vessel has transited at least 2200 yards away from the marine mammals.
b. During Exercise Monitoring: The Navy will uti lize two dedicated National Oceanic and Atmospheric Administration- and NMFS-trained lookouts at all times when MFA sonar is being used. See Parsons Supp'l Decl. ¶ 7 (describing dramatically greater mitigation measure compliance when specialist marine mammal ob servers are present, as compared with ships' crew mem bers). To the maximum extent practicable, the Navy will employ passive acoustic monitoring to supplement the visual detection of the presence of marine mammals. For example, in the San Clemente instrumented range (SCIRC), the Navy shall attempt to use its M3R acoustic monitoring system to monitor the presence of marine mammals. As beaked whales are close to impossible to detect visually, the employment of passive acoustic monitoring, e.g. by hydrophones, is the best means of de tection and real-time avoidance of beaked whales. Decl. Robin William Baird ¶¶ 6-7 (explaining that detection of beaked whales approaches 0 percent at distances of 1 kilometer or greater and that beaked whales regularly dive for 50-60 minutes before surfacing); Baird Supp'l Decl. ¶¶ 5-6. Accordingly, the Navy shall employ such passive acoustic monitoring before and during MFA sonar use in areas where beaked whales are more likely to be present. See Jefferson Decl. ¶ 12 (noting that beaked whales are likely to be present at depths be tween 1000 meters and 2000 meters around the contin ental slope); Pls.' Ex. 11 (scientific study indicating that the area off the California coast west to 125.0°W is a key area for beaked whale populations).
c. Aerial Monitoring: The Court understands that the Navy deploys aircraft before and during its training exercises as part of its overall training scheme. Accor dingly, the Court orders that the Navy shall use such aircraft to assist in the monitoring of the presence of marine mammals. Pre-exercise dedicated aerial moni toring shall be conducted within the 60 minutes before the start of use of MFA sonar. Aerial monitoring by na val aircraft participating in the exercises shall continue for the duration of exercises when MFA sonar is being used. Any spotting of marine mammals will be commu nicated to vessels employing MFA sonar with all possi ble speed, to allow for timely compliance with the safety zone requirement detailed above.
4. Helicopter Dipping Sonar
In addition to aerial monitoring described above, hel icopters shall monitor for marine mammals for 10 min utes before deployment of active dipping sonar. If mar ine mammals are spotted within the 2200 yard safety zone, all use of active dipping sonar shall cease until the helicopter has transited at least 2200 yards away from the marine mammals, or the mammals are seen to exit the safety zone.
5. Surface Ducting Conditions
Surface ducting, in which sound travels further than it otherwise would due to temperature differences in ad jacent layers of water, are difficult to predict. Bird Decl. ¶ 52. In addition to making submarines difficult to detect, surface ducting causes the received decibel level of sound to be higher at greater distances than other wise would be expected. Id. Although not predictable, when significant surface ducting conditions2 are detec ted, the Navy shall power down sonar by 6 dB.
6. Choke Points and the Catalina Basin
The parties disagree as to whether the Catalina Bas in between the Santa Catalina and San Clemente Islands constitutes a "choke point." The Navy insists that it is not a choke point because it is not "a strategic strait or canal." Defs.' Mem. Regarding Tailored Preliminary In junction at 11; Bird Decl. ¶ 54. Plaintiffs argue that it is at least a "simulated choke point," and that the Navy previously has referred to the area as such. Pls.' Open ing Brief Regarding Appropriate Mitigation Measures at 13 n.6.; e.g., Pls.' Ex. 4 at 93, 136, 204, 239 (Navy Overseas Environmental Assessments describing use of the area as a "simulated strait."). In any event, the Court is satisfied that ingress and egress to the Catalina Basin is restricted, and that the area includes a high density of marine mammals. Baird Supp'l Decl. ¶ 8. Accordingly, the Court orders the Navy to refrain from employing MFA sonar in the Catalina Basin. The Court notes that this requirement is not intended to restrict activities within the San Clemente Island Range Com plex (SCIRC), so long as MFA sonar is not employed closer than 5 nautical miles from the western shore of San Clemente Island, as represented in Defendants' papers. Defs.' Mem. at 10-11; Bird Decl. ¶¶ 59, 62.
7. Continue NDE II Mitigation Measures The Navy shall continue to employ the mitigation mea sures listed in NDE II.
To the extent that the requirements of this Order conflict with, or are stricter than, the NDE II mitigation measures, this Order controls.
IT IS SO ORDERED.
Dated: January 10, 2007 [sic]
/s/ FLORENCE-MARIE COOPER
FLORENCE-MARIE COOPER, Judge
UNITED STATES DISTRICT COURT
1 The Court is likewise convinced that the 25 nautical mile exclusion zone proposed by Plaintiffs is impracticable, in that it would prevent the Navy from training to detect submarines in the very bathymetry in which submarines are likely to hide. Accordingly, the Court finds that the most practicable compromise is to allow the Navy to approach near er to the shore, but to expand the range in which MFA sonar must be shut down to minimize the exposure of marine mammals.
2 Defined in Defendants' papers as "a mixed layer of constant water temperature extending from the sea surface to 100 feet or more." Defs.' Mem. at 18.
APPENDIX E
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
8:07-cv-00335-FMC-FMOx
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OFTHE NAVY,
ET AL., DEFENDANTS
[Filed: Jan. 10, 2008]
ORDER ISSUING MODIFIED PRELIMINARY INJUNCTION
This matter was originally before the Court on re mand from the Ninth Circuit Court of Appeals. The Court read and considered the simultaneous briefs and reply documents submitted by the parties in connection with the remand order. In addition, on December 27, 2007, the Court toured the USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibil ity of the parties' proposed mitigation measures. Coun sel for both Plaintiffs and Defendants were present. On January 3, 2008, the Court issued a preliminary injun ction. In response to issues raised in Defendants' subsequent Ex Parte Application for Stay Pending Appeal (docket no. 96), filed January 9, 2008, and on its own initiative pursuant to Fed. R. Civ. P. 60(a), the Court hereby modifies the preliminary injunction.
DISCUSSION
On March 22, 2007, Plaintiffs, five environmental protection groups and Jean-Michel Cousteau, filed this action against Defendants, which include the United States Department of the Navy and the National Marine Fisheries Service (NMFS), seeking declaratory and injunctive relief for Defendants' violations of NEPA, the Endangered Species Act (ESA), the Administrative Procedures Act (APA), and the Coastal Zone Manage ment Act (CZMA). On June 22, 2007, Plaintiffs moved for a preliminary injunction enjoining the Navy's use of MFA sonar during the SOCAL exercises "until the Na vy adopts mitigation measures that would substantially lessen the likelihood of serious injury and death to mar ine life." On August 7, 2007, this Court issued an order enjoining the Navy's use of MFA sonar during training exercises off the coast of California (docket no. 50). The Navy appealed the order and obtained a stay of the in junction pending the appeal. (Natural Res. Def. Coun cil v. Winter, 502 F.3d 859 (9th Cir. Aug. 31, 2007).) On November 13, 2007, a panel of the Ninth Circuit Court of Appeals vacated the stay and remanded the matter to this Court, with instructions to issue a narrower injunc tion "to provide mitigation conditions under which the Navy may conduct its training exercise." (Natural Res. Def. Council v. Winter, __ F.3d __, 2007 WL 3377229 at * 1 (9th Cir. 2007).) The order imposed a deadline of January 4, 2007, for the issuance of the injunction.
On January 3, 2008, the Court issued a preliminary injunction. On January 9, 2008, Defendants filed an ex parte application seeking a stay of the injunction, pen ding appeal. Although Defendants requested only a stay of the Court's injunction, and did not ask the Court to modify its existing Order, the parties are aware that the Order was issued under a very restricted time frame set by the Ninth Circuit Court of Appeals. In preparing to issue its injunction, the Court reviewed thousands of pages of documents and briefs and was required to issue the injunction within a few days of the completion of briefing. Accordingly, Defendants Memorandum of Points and Authorities in Support of its Application for Stay Pending Appeal has made the Court aware of some clerical errors and omissions. As a result, the Court's intent in some areas was not made clear in the injunc tion.1 The Court hereby modifies the injunction, pursu ant to Federal Rule of Civil Procedure 60(a)4 as follows:
1. On page 15 of the January 3 Order, at line 19, the Court adds the following sentence: "This mitigation measure may be discontinued (as described in NDE II) where the marine mammals at issue are dolphins or por poises, and it appears that the dolphins or porpoises are intentionally following the naval vessel in order to play in or ride the vessel's bow wave."
2. On page 16, the text under subheading "c. Aerial Monitoring" is modified to read: "The Court under stands that the Navy deploys aircraft before and during its training exercises as part of its overall training scheme. Accordingly, the Court orders that the Navy shall use such aircraft to assist in the monitoring of the presence of marine mammals. Pre-exercise dedicated aerial monitoring shall be conducted within the 60 min utes before the start of use of MFA sonar. Aerial moni toring by naval aircraft participating in the exercises shall continue for the duration of exercises when MFA sonar is being used. Any spotting of marine mammals will be communicated to vessels employing MFA sonar with all possible speed, to allow for timely compliance with the safety zone requirement detailed above."
3. On page 17, the text under subheading "5. Surface Ducting Conditions" is modified to add the word "signif icant" to the phrase "surface ducting conditions" in the third sentence. A footnote defining the term is also ad ded. The new footnote reads: "Defined in Defendants' papers as 'a mixed layer of constant water temperature extending from the sea surface to 100 feet or more.' Defs.' Mem. at 18."
CONCLUSION
The Court will issue a modified injunction, reflecting these corrections.
IT IS SO ORDERED.
Dated: January 10, 2007 [sic]
/s/ FLORENCE-MARIE COOPER
FLORENCE-MARIE COOPER, JUDGE
UNITED STATES DISTRICT COURT
1 Among the issues raised in Defendants' application was that the injunction provided for no exception to the mitigation measure for dol phins and porpoises who may intentionally follow naval vessels in order to play on their bow waves. Defendants' injunction also expressed the concern that the injunction required dedicated and continuous aerial monitoring for the duration of exercises, which may last for several weeks. This outcome was not the Court's intention.
2The rule reads in relevant part:
The court may correct . . . a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appel late court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
On January 10, 2008, the Court reviewed the case docket and found that no notice of appeal has yet been docketed in this Court or before the Ninth Circuit.
APPENDIX F
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
No. 8:07-cv-00335-FMC-FMOx
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL.
[Filed: Jan. 3, 2008]
ORDER ISSUING PRELIMINARY INJUNCTION
This matter is before the Court on remand from the Ninth Circuit Court of Appeals (docket no. 60). The Court has read and considered the simultaneous briefs and reply documents submitted by the parties in con nection with the remand order. In addition, on Decem ber 27, 2007, the Court toured the USS Milius at the naval base in San Diego, California, to improve its un derstanding of the Navy's sonar training procedures and the feasability of the parties' proposed mitigation measures. Counsel for both Plaintiffs and Defendants were present. For the reasons and in the manner set forth below, the Court hereby issues the following pre liminary injunction.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
This litigation arises out of the United States Navy's use of the mid-frequency active (MFA) sonar, a tool hat has proven far more effective at detecting modern quiet- running diesel electric submarines than passive sonar. (Decl. of Capt. Martin May (May Decl.) ¶¶ 8-10.5) MFA sonar, which generates underwater sound at extreme pressure levels, has the unfortunate side effect of harm ing marine life, up to and including causing death. (See, e.g., Decl. of Thomas Jefferson (Jefferson Decl.) ¶ 4 and sources cited therein.) The Navy plans to use, or has used, MFA sonar during fourteen large-scale training exercises (involving various ships, submarines, amphibi ous vehicles, rotary and fixed-wing aircraft, and live ordinance) off the coast of Southern California between February 2007 and January 2009. (Decl. of Luther Ha jek (Hajek Decl.), Ex. 1 at 2-1 to 2-24.)
The Navy's own Environmental Assessment (EA) reports that these activities, comprised of Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Exercises (JTFEX), will result in approximately 170,000 "takes"6 of marine mammals. (Id. at 4-46 to 4- 47.) These takes are predominantly "Level B harass ment exposures," in which marine mammals would be subjected to sound levels between 170 and 195 decibels,7 but also include approximately 8,000 exposures powerful enough to cause a temporary threshold shift in the af fected mammals' sense of hearing and an additional 466 instances of permanent injury to beaked and ziphiid whales. (Id.)
Despite these findings, the Navy concluded that its JTFEX and COMPTUEX exercises in the Southern California Operating Area (SOCAL) would not cause a significant impact on the environment and on that basis decided that the National Environmental Policy Act (NEPA) did not require it to prepare an Environmental Impact Statement (EIS). In addition, the Navy deter mined that the use of MFA sonar would not affect natu ral resources in California's costal zone and therefore submitted a "consistency determination" (CD) to the California Coastal Commission (CCC) for the exercises that did not take the planned use of MFA sonar into account. It also refused to adopt the mitigation mea sures the CCC subsequently determined were necessary for the Navy's actions to comply with the California Coastal Management Program (CCMP). (See Decl. of Cara Horowitz (Horowitz Decl.), Ex. 67 at 9.)
On March 22, 2007, Plaintiffs, five environmental protection groups and Jean-Michael Cousteau, filed this action against defendants, which include the United States Department of the Navy and the National Marine Fisheries Service (NMFS), seeking declaratory and injunctive relief for the Defendant's violations of NEPA, the Endangered Species Act (ESA), the Administrative Procedures Act (ESA), the Administrative Procedures Act (APA), and the Coastal Zone Management Act (CZMA). On June 22, 2007, Plaintiffs moved for a pre liminary injunction enjoining the Navy's use of MFA sonar during the SOCAL exercises "until the Navy adopts mitigation measures that would substantially lessen the likelihood of serious injury and death to ma rine life." On August 7, 2007, this court issued an order enjoining the Navy's use of MFA sonar during training exercises off the coast of California (docket no. 50). The Navy appealed the order and obtained a stay of the in junction pending the appeal. (Natural res. Def. Council v. Winter, 502 F.3d 859 (9th Cir. Aug. 31, 2007).) On November 13, 2007, a panel of the Ninth Circuit court of Appeals vacated the stay and remanded the matter to this Court, with instructions to issue a narrower injunc tion "to provide mitigation conditions under which the Navy may conduct its training exercise." (Natural Res. Def. Council v. Winter, ___F.3d ___, 2007 WL 3377229 at * 1 (9th Cir. 2007).)
DISCUSSION
I. August 2007 Findings
Plaintiffs' initial motion asked the Court to issue a preliminary injunction prohibiting the Navy from using MFA sonar during the remaining eleven SOCAL exer cises.8 In its August 2007 Order, the Court found that Plaintiffs had demonstrated a probability of success on the merits of their first four causes of action, for viola tions of National Environmental Policy Act (NEPA), the Administrative Policy Act (APA), and the Coastal Zone Management Act (CZMA), but not their fifth cause of action, for violation of the Endangered Species Act (ESA). These findings were not disturbed by the Ninth Circuit's November 2007 decision. Specifically, the Court made the following findings:
A. Probability of Success
1. The National Environmental Policy Act (NEPA)
In their initial motion, Plaintiffs contended that De fendant violated NEPA by (a) failing to prepare an EIS despite the potential for the challenged exercises to have a significant impact on the environment and (b) by failing to prepare an adequate EA that considered the cumulative impacts of, and all reasonable alternatives to, the proposed actions.
NEPA mandates the preparation of an EIS for all proposed "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The Ninth Circuit has interpreted this provision as requiring agencies to prepare an EIS "where there are substantial questions about whether a project may cause significant degradation of the human environment." Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) (emphasis in original). As the preparation of an EIS can be a costly and time-consuming process, agencies first complete an EA. 40 C.F.R. § 1508.9. If, based on this assessment, the agency concludes that the proposed actions will not significantly affect the environment, it may issue a "Finding of No Significant Impact" (FONSI) and forego completion of an EIS. Bob Mar shall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir. 1988); 40 C.F.R. § 1508.13. Agencies must complete an EA and, as necessary, an EIS before reaching a final decision or making an "irreversible and irretrievable commitment of the availability of resources." Envtl. Def. Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir. 1979).
Defendants insisted that they were not required to prepare an EIS, and that their issuance of a FONSI was proper, because the SOCAL exercises will not cause a significant impact on marine life. In the Ninth circuit, courts reviewing an agency's decision not to prepare an EIS under NEPA "employ an arbitrary and capricious standard that requires [them] to determine whether the agency has taken a 'hard look' at the consequences of its actions, based its decision on a consideration of the rele vant factors, and provided a convincing statement of reasons to explain why a project's impacts are signifi cant." Native Ecosystems Council, 428 F.3d at 1239 (internal quotations and citations omitted). To prevail on a claim that an agency "violated its statutory duty to prepare an EIS, a plaintiff need not show that signifi cant effects will in fact occur. It is enough for the plain tiff to raise substantial questions whether a project may have a significant effect on the environment." Blue Mts. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal quotations and citations omit ted).
Addressing these arguments in its August 2007 Or der, the Court found that a raised substantial questions as to whether the SOCAL exercises would have signifi cant impact on the environment. Mass strandings of several species of whales following naval exercises have been documented in the Bahamas, the Canary islands, Hawaii, North Carolina, Japan, Greece, Spain, Taiwan, the Madeira archipelago, and the U.S. Virgin Islands. See generally, Horowitz Decl. Exs. 1-16. Following comprehensive studies of these events, the International Whaling Commission's Scientific Committee concluded that "[t]he weight of accumulated evidence now associ ates mid-frequency, military sonar with atypical beaked mass strandings. This evidence is very convincing and appears overwhelming." Id., Ex. 1, Annex K at 9.) A study sponsored by the Navy's own Office of Naval Re search similarly concluded , "the evidence of sonar cau sation is, in our opinion, completely convincing and that therefore there is a serious issue of how best to avoid/ minimize future beaching events." Id., Ex. 17 at 1 (con cluding that a lack of understanding regarding the dam age mechanism precluded modifications to the sonar waveform as a mitigation strategy and proposing alter native mitigation measures).
Based on the studies establishing a scientific consen sus on the correlation between the use of MFA sonar and mass whale strandings, the evidence indicating that MFA sonar disrupts activities critical to marine mam mals' survival, such as food foraging and mating, and the conclusions of the Navy's own scientific study that the SOCAL exercises will cause 170,000 Level B harass ment exposures and 466 permanent injuries to marine mammals, including five endangered species, the Court concluded that Plaintiffs had raised substantial ques tions as to whether the SOCAL exercises would have a significant impact on the environment. Plaintiffs there fore demonstrated a probability of success on their claim that their Navy's failure to prepare and environ mental impact statement was arbitrary and capricious and in violation of NEPA and the APA.
The Court further found that Plaintiffs demon strated a probability of success on their claims that De fendants' proposed mitigation measures were inade quate. An agency may avoid the requirement to prepare an EIS by adopting mitigation measures sufficient to eliminate any substantial questions over the potential for significant impact on the environment. Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 733-34 (9th Cir. 2001) ("In evaluating the sufficiency of mitiga tion measure , we consider whether they constitute an adequate buffer against the negative impacts that may result from the authorized activity. Specifically, we ex amine whether the mitigation measures will render such impacts so minor as to not warrant n EIS."). The Court found that the mitigation measures proposed by Defen dants were far from sufficient to obviate the need for an EIS. Ironically, Defendants actually reduced their miti gation efforts and adopted measures even less protec tive than those the Court had previously found insuffi cient. See CV 06-4131 FMC (FMOx), July 3, 2006, Tem porary Restraining Order and July 5, 2006, Order Deny ing Defendant's Ex Parte Applications. The Navy has eliminated (1) its provisions requiring power-downs dur ing surface ducting conditions (when sounds travels greater distances), at night and in other low-visibility conditions (when whales that would be affected are more difficult to see); (2) the twelve-nautical-mile coastal buffer zone, and (3) additional protection mea sures during "chokepoint" exercises.
What few mitigation measures remain continue to be ineffective. A "safety zone" of 1,000 yards, for example, does little to mitigate the impact of MFA sonar's effect on beaked whales where sound levels may not dissipate to sublethal levels for 5,000 meters. See Horowitz Decl., Ex 59 (acoustic energy map); Decl. of Linda Weilgart (noting mortality may occur at levels between 170-184 dB and as low as 150-155 dB; Decl. of Edward Parsons (Parsons Decl.) ¶ 17 (noting that sound can travel hun dreds of miles under water). The presence of visual monitors looking for whales is likewise of little value where beaked whales, which are most susceptible to injury from MFA sonar, are regularly submerged in deep dives that last as long as sixty minutes. Parsons Decl. ¶ 10; Horowitz Decl., Ex. 44 (study finding a 5 per cent chance under ideal conditions of observing the presence of beaked whales close to a vessel, and a 0 per cent chance of detecting a beaked whale at 1 kilometer using 7x binoculars).
The Court also found that Plaintiffs have demon strated a probability of success on their claims that De fendants violated NEPA because their EA failed to con sider reasonable alternative or cumulative impacts. The Ninth Circuit has concluded, in furtherance of NEPA's goal "that federal agencies infuse in project planning a thorough consideration of Environmental values," fed eral agencies most sufficiently study, develop, and de scribe alternatives as part of the "environmental deci sion making planning process." Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988) (internal quotations and citations are omitted). The environmen tal decision making process requires the Navy to give "full and meaningful consideration to reasonable alter natives. Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1165-66 (N.D. Cal. 2003); see also Nat'l Parks & Conservation Ass'n, 241 F.3d at 733 (". . . repeated generic statement that the effects are unknown does not constitute the requisite 'hard look' mandated by the statute if preparation of an EIS is to be avoided").
As the Ninth Circuit has explained:
consideration of alternatives is critical to the goals of NEPA even where a proposed action does not trig ger the EIS process. This is reflected in the struc ture of the statute: while an EIS must also include alternatives to the proposed action, 42 U.S.C. § 4332(2)(C)(iii) (1982), the consideration of alterna tives requirement is contained in a separate subsec tion of the statute and therefore constitutes an inde pendent requirement. See id. § 4332(2)(E). The lan guage and effect of the two subsections also indicate that the language and effect of the two subsections also indicate that the consideration of alternatives requirement is of wider scope that the EIS require ment.
Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988).
In addition, the Court found that it did not appear that Defendants adequately considered reasonable al ternative mitigation measures, such as those proposed by the CCC, used by allies such as Australia during ex ercises employing MFA sonar, or even those the Navy itself employed during RIMPAC 2006. See Hajek Decl., Ex. 1 at 5-5 to 5-8 (succinctly dismissing ten proposals with little analysis and failing to discuss other alterna tives). Defendants also failed to consider any geograph ical alternatives, and their conclusory single sentence argument that the SOCAL range is "uniquely situated to support these exercises" is insufficient to show that any alternatives would have been unreasonable, making consideration unnecessary. 'Ilio'Ulaokalani Coal v. Rumsfeld, 464 F.3d 1083, 1100-01 (9th Cir. 2006) (hold ing that Army violated NEPA by filing to consider a location other than Hawaii for transformation of an army brigade despite stated strategic importance of area and evidence that action was "critical for the train ing of soldiers in conditions that would arise in expected combat situations.").
Finally, Defendants failed to adequately consider the cumulative impacts of the SOCAL exercises. Despite the EA's conclusion that the SOCAL exercises will cause 8,000 TTS exposures and 466 instances of perma nent injury, and evidence that the Navy regularly con ducts unit level exercises using MFA sonar in the re gion, in one paragraph the EA dismissed the potential for cumulative impacts and concluded that the SOCAL exercises "would not have any significant contribution to the cumulative effects on marine mammals" based on the use of mitigation measures the Court has already found ineffectual. Although it is possible that the EA's findings could have been supported by further study and modeling incorporating the proposed mitigation measures, the EA's conclusion is unsupported by the assessment's current findings and model, and the failure to study and analyze the potential for such cumulate impacts in light of those findings renders the EA fatally inadequate. See Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 994 (9th Cir. 2004) ("A proper con sideration of the cumulative impacts of a project re quires some quantified or detailed information; general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided. The analysis must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects." (internal quotations and citations omitted)).
2. The Coastal Zone Management Act (CZMA)
In their initial motion, Plaintiffs contended that Sec retary of the Navy Donald Winter and the United States department of the Navy (Navy Defendants) violated the CZMA by submitting a CD to the CCC for SOCAL exer cises that did not take the planned use of MFA sonar into account and by failing to adopt the mitigation mea sures the CCC subsequently determined were necessary for the Navy's actions to comply with the CCMP. The CZMA requires that for the Navy's actions to comply within or outside the coastal zone that affects any land or water use or natural resources of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved state management programs." 16 U.S.C. § 1456(c)(1). Under the CZMA, agencies must comply with "the enforceable policies of management programs unless full consistency is prohibited by exist ing law applicable to the Federal agency." 15 C.F.R. § 930.32(a)(1). Agencies must also submit a CD "for all Federal agency activities affecting any coastal use or resource" to the applicable state agency. 15 C.F.R. § 930.34. Although the CZMA lacks a citizen suit provi sion, judicial review of the agency compliance is avail able pursuant to the APA. See, e.g., Friends of Earth v. United States Navy, 841 F.2d 927, 936 (9th Cir. 1988); 5 U.S.C. §§ 701-06. The burden of demonstrating maxi mum consistency practicable with the CCMP rests with the Navy. California Coastal Comm'n v. United States, 5 F. Supp. 2d 1106, 1112 (S.D. Cal. 1998).
The Navy Defendants argued that they were not required to analyze or discuss the proposed use of the MFA sonar in the CD they submitted to the CCC be cause of the MFA sonar in the CD they submitted to the CCC because the MFA sonar use would not affect any coastal resources. For the reasons that Defendant's de termination that the SOCAL exercises would not have a significant impact on the environment was arbitrary and capricious, as discussed above, the court concluded that the Navy Defendants' determination that the use of the MFA sonar in the SOCAL range would not affect any of California's coastal resources was similarly arbi trary and capricious and in violation of the APA.9 The court also concluded that the mitigation measures devel oped by the Navy and the NMFS were "woefully inade quate and ineffectual . . . and Defendants have failed to establish that the CCC's proposed mitigation mea sures are either unnecessary or not required under the CCMP." Accordingly, the Court found that Plaintiffs have demonstrated a probability of succeeding on the merits of their claims under the CZMA.
B. Possibility of Irreparable Harm
The Court found that Plaintiffs have demonstrated that MFA sonar can injure and kill marine mammals, and cause population-affecting levels of disruption. De fendants' own study concludes that the SOCAL exer cises in particular will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered whales, and may cause permanent injury or death. Where, as here, plaintiffs demonstrate a strong likelihood of prevailing on the merits of their claims and there is a "possibility of irreparable harm," injunctive relief is appropriate. Faith Ctr. Church Ev angelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir. 2007); Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006); Cmty. House, Inc. v. City of Boise, 468 F.3d 1118, 1123 (9th Cir. 2006). The Supreme Court has held that, "[e]nviromental in jury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is suffi ciently likely, therefore, the balance of harms will usu ally favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987); see also Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1125 (9th Cir. 2005).
From the numerous scientific studies, declarations, reports, and other evidence submitted to the Court, the Court continues to conclude that Plaintiffs have estab lished to a near certainty that use of MFA sonar during the planned SOCAL exercises will cause irreparable harm to the environment and Plaintiffs' standing declar ants. The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur (or the public interest would suffer) if Defendants were preven ted from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular ac tivities in one part of one state for a limited period.
II. Injunctive Relief
The Ninth circuit panel agreed with the findings de tailed above and with the conclusion that injunctive re lief was warranted but remanded to this Court, stating that after "having considered the effect that narrowly tailored mitigation conditions might have on the parties' interests, we conclude that such an injunction would be appropriate." Natural Res. Def. Council, 2007 WL 3377229 at * 1. Accordingly, based on the evidence presently before it, the Court orders that the Navy im mediately implement the following mitigation mea sures.10
1. 12 Nautical Mile Coastal Exclusion Zone
The Navy shall maintain a 12 nautical mile exclusion zone from the California coastline at all times. The great weight of scientific evidence points to avoidance of marine mammal habitat as the most effective means of minimizing sonar-related injury to marine mammals. E.g., Supplemental Decl. Robin William Baird ("Baird Supp'l Decl.") ¶¶ 5, 7-8; Supplemental Decl. Edward Parson ("Parsons Supp'l Decl.") ¶ 10; T. Agardy, et al., A Global Scientific Workshop on Spacio-Temporal Management of Noise: Report of the Scientific Work shop, Pls.' Ex. 24. From the evidence presented to the Court in connection with the remand order, it appears to the court that the exclusion of a 12 nautical mile zone adjacent to the coastline is both practicable and reason ably effective. The Navy adhered to a 25 nautical mile exclusion zone for its Rim of the Pacific (RIMPAC) ex ercises off the coast of Hawaii. Decl. Rear Admiral John M. Bird ¶ 46e (hereinafter "Bird Decl.). In addi tion, the Navy operated under a 2006 National Defense Exemption ("NDE I") that included a 12 nautical mile coastal exclusion zone. Id. Although the Court is cogni zant of the high density of rich marine life within 25 nautical miles of the California coastline, it appears from the evidence before the Court that a coastal exclu sion of that size would unduly hamper the Navy's train ing efforts. Accordingly, the Court deems the 12 nauti cal mile exclusion zone appropriate, in that the Navy has previously acknowledged its practicability and it would bar the use of MFA sonar in a significant portion of im portant marine animal habitat11
2. 2200 yard MFA Sonar Shutdown
The Navy shall cease use of MFA Sonar (either ves sel-based or aircraft-based sonobouys or active dipping sonar) when marine mammals are spotted within 2200 yards (approximately 2000 meters). The Court is per suaded that the 1000 yard/500 yard/200 yard scheme proposed by the Navy is grossly inadequate to protect marine mammals from debilitating levels of sonar expo sure. Bird Decl. ¶ 46f. A number of studies indicate that sonar injures marine mammals not only via acoustic harassment, but by panic-induced rapid diving or sur facing, which leads to decompression sickness (i.e., "the bends"). Compare Bird Decl. ¶ 39 to Supplemental Decl. David E. Bain ¶ 7 (hereinafter "Bain Supp'l Decl.); Pls.' Supplemental Exs. 5, 6 (scientific articles detailing "acute embolic disease" and other bubble-induced sick ness in marine mammals, caused by sound exposure); Parsons Decl. ¶ 5. Indeed, scientists have observed flight responses by marine mammals during naval exer cises at distances as great as 22 kilometers (in the case of killer whales) or even 40 kilometers (Dall's por poises). Bain Supp'l Decl. ¶¶ 12-13. The Court there fore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-related consequences, it represents a minimal imposition of the Navy's training exercises.
3. Monitoring
a. Pre-Exercise Monitoring: Each day in which MFA sonar is to be used, the Navy shall monitor for the presence of marine mammals for 60 minutes before em ploying MFA sonar. If marine mammals are detected within 2200 yards, the Navy will wait until: (1) the ma rine mammals are seen to leave the vicinity, or (2) the MFA sonar-employing vessel has transited at least 2200 yards away from the marine mammals.
b. During the Exercise monitoring: The Navy will utilize two dedicated National Oceanic and Atmospheric Administration- and NMFS-trained lookouts at all times when MFA sonar is being used. See Parsons Supp'l Decl. ¶ 7 (describing dramatically greater mitigation measure compliance when specialist marine mammal observers are present, as compared with ships' crew members). To the maximum extent practicable, the Na vy will employ passive acoustic monitoring to supple ment the visual detection of the presence of marine mammals. For example, in the San Clemente instrumen ted range (SCIRC), the Navy shall attempt to use its M3R acoustic monitoring system to monitor the pres ence of marine mammals. As beaked hales are close to impossible to detect visually, the employment of passive acoustic monitoring, e.g. by hydrophones, is the best means of detection and real-time avoidance of beaked whales. Decl. Robin William Baird ¶¶ 6-7 (explaining that detection of beaked whales approaches 0 percent at distances of 1 kilometer or greater and that beaked whales regularly dive for 50-60 minutes before surfac ing); Baird Supp'l Decl. ¶¶ 5-6. Accordingly, the Navy shall employ such passive acoustic monitoring before and during MFA sonar use in areas where beaked whales are more likely to be present. See Jefferson Decl. ¶ 12 (noting that beaked whales are likely to be present at depths between 1000 meters and 2000 meters around the continental slope); Pls.' Ex. 11 (scientific study indicating that the area off the California coast west to 125.0°W is a key area for beaked whale popula tions).
c. Aerial Monitoring: The Court understands that the Navy deploys aircraft before and during its training exercises as part of its overall training scheme. Accord ingly, the Court orders that the Navy shall use such aircraft, as well as at least one dedicated aircraft, to assist in the monitoring of the presence of marine mam mals. Pre-aerial monitoring shall be conducted within the 60 minutes before the start of use of MFA sonar. Aerial monitoring shall continue for the duration of ex ercises involving the use of MFA sonar. Any spotting of marine mammals will be communicated to vessels em ploying MFA sonar with all possible speed, to allow for timely compliance with the safety zone requirement de tailed above.
4. Helicopter Dipping Sonar
In addition to aerial monitoring described above, helicopters shall monitor for marine mammals for 10 minutes before deployment of active dipping sonar. If marine mammals are spotted within the 2200 yard safety zone, all use of active dipping sonar shall cease until the helicopter has transited at least 2200 yards away from the marine mammals, or the mammals are seen to exit the safety zone.
5. Surface Ducting Conditions
Surface ducting, in which sound travels further that it otherwise would due to temperature differences in adjacent layers of water, are difficult to predict. Bird Decl. ¶ 52. In addition to making submarines difficult to detect, surface ducting causes the received decibel level of sound to be higher at greater distances then other wise would be expected. Id. Although not predictable, when surface ducting conditions are detected, the Navy shall power down sonar by 6 dB.
6. Choke Points and the Catalina Basin
The parties disagree as to whether the Catalina ba sin between the Santa Catalina and San Clemente Is lands constitutes a "choke point". The Navy insists that it is not a choke point because it is not "a strategic strait or canal." Defs.' Mem. Regarding Tailored Preliminary Injunction at 11; Bird Decl. ¶ 54. Plaintiffs argue that it is at least a "simulated choke point," and that the Navy previously has referred to the area as such. Pls.' Opening Brief Regarding appropriate Mitigation Mea sures at 13 n.6; e.g., Pls.' Ex. 4 at 93, 136, 204, 239 (Navy Overseas Environmental Assessments describing use of the area as a "simulated straight."). In any event, the Court is satisfied that ingress and egress to the Catalina Basin is restricted, and that the area includes a high density of marine mammals. Baird Supp'l Decl. ¶ 8. Ac cordingly, the Court orders the Navy to refrain from employing MFA sonar in the Catalina Basin. The Court notes that this requirement is not intended to restrict activities within the San Clemente Island Range Com plex (SCIRC), so long as MFA sonar is not employed closer than 5 nautical miles from the western shore of San Clemente Island, as represented in Defendants' papers. Defs.' Mem. at 10-11; Bird Decl. ¶¶ 59, 62.
7. Continue NDE II Mitigation Measures
The Navy shall continue to employ the mitigation measures listed in NDE II. To the extent that the re quirements of this Order conflict with, or are stricter than, the NDE II mitigation measures, this Order con trols.
CONCLUSION
IT IS SO ORDERED.
Dated: January 3, 2007
/s/ FLORENCE-MARIE COOPER
FLORENCE-MARIE COOPER, JUDGE
5 Except where indicated, citations to the record refer to evidence submitted in connection with Plaintiff's original motion seeking in junctive relief (docket no. 14), filed June 22, 2007, and not to the supplemental declarations the parties submitted in support of their briefing in response to the Ninth Circuit's remand order.
6 The term "take", as defined in Endangered Species Act, means "to harass harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19).
7 Decibels are logarithmic measurement, such that an increase of 10 dB is equivalent to a tenfold increase in acoustic energy. To put these sound levels in perspective, OSHA requires hearing protection be used where workers are exposed to a sound level of 90 dB for eight hours or 110 dB for as little as thirty minutes. 29 C.F.R. § 1910.95(a).
8 "A preliminary injunction may issue when the moving party dem onstrates either '(1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.'" Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir. 2007) (quoting A&M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see also Cmty. House, Inc. v. City of Boise, 468 F.3d 118, 1123 (9th Cir. 2006). "These two options represent extremes on a single continuum: 'the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their fa vor." Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) (quo ting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam); see also A&M records, 109 F.3d at 1013 (criteria form a "sliding scale" whereby the required degree of harm increases as the likelihood of success decreases); United States v. Nutri-Cology, Inc., 982 F.2d 394, 398 (9th Cir. 1992) (same).
9 The Navy Defendants raised a number of additional arguments in support of their decision under the CZMA, none of which the Court found persuasive. See August 2007 Order at 15-17.
10 In response to the Ninth circuit's order, Plaintiffs proposed sweep ing geographic exclusions, including: (1) a 25 nautical mile coastal ex clusion, (2) exclusion of the Catalina Basin, (3) exclusion of the Westfall Seamount, (4) exclusion of the Cortez and Tanner Banks, and (5) locat ing exercise to the maximum extent possible in waters deeper than 1,500 meters. Defendants, by contrast, proposed to continue employing the mitigation measures outlined in the 2007 National Defense Exemp tion ("NDE II") as well as several additional measures, including: (1) powering down MFA sonar by 6 dB at 1,000 meters; powering down an additional 4 dB at 500 meters; and shutting off ("securing") MFA sonar at 200 meters; (2) employing two dedicated, and 3 non-dedicated, mar ine mammal lookouts at all times when MFA sonar is being used, and providing such lookouts with binoculars, night vision goggles, and infra red sensors; (3) staying outside the Channel Islands National Marine Sanctuary, and remaining 5 nautical miles from San Clemente Island's western shore, and 3 nm from its other shores; (4) aerial monitoring for at least 60 minutes before MFA sonar exercises along the Tanner and Cortez banks during blue whale migration (July to September 2008); and (5) pre-exercise monitoring of gray whale off-shore migration pat terns during March 7-21, 2008 and April 15-May 15, 2008.
11 The Court is likewise convinced that the 25 nautical mile exclusion
zone proposed by Plaintiffs is impracticable, in that it would prevent the
Navy from training top detect submarines in the very bathymetry in which
submarines are likely to hide. Accordingly, the Court finds that the most
practicable compromise is to allow the Navy to approach near er to the shore,
but to expand the range in which MFA sonar must be shut down to minimize
the exposure of marine mammals.
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 07-56157
D.C. No. CV-07-00335-FMC/FMO
Central District of California, Santa Ana
NATURAL RESOURCES DEFENSE COUNCIL, INC.;
THE INTERNATIONAL FUND FOR ANIMAL WELFARE; CETACEAN SOCIETY INTERNATIONAL;
LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU,
PLAINTIFFS-APPELLEES
v.
26. DONALD C. WINTER, SECRETARY OF THE NAVY; UNITED STATES DEPARTMENT OF THE NAVY; CARLOS M. GUTIERREZ, SECRETARY OF THE DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SER VICES; WILLIAM HOGARTH, ASSISTANT ADMINISTRA TOR FOR FISHERIES OF THE NATIONAL OCEANO GRAPHIC AND ATMOSPHERIC ADMINISTRATION; CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION, DEFENDANTS-APPELLANTS
Nov. 13, 2007
Before: BETTY B. FLETCHER, DOROTHY W. NELSON, and STEPHEN REINHARDT, Circuit Judges.
ORDER
This appeal concerns the Navy's use of mid-frequen cy active sonar in fourteen training exercises off the coast of Southern California. The Navy completed three of these exercises in February and March of this year. On August 7, 2007, the district court entered a prelim inary injunction prohibiting the Navy from using mid- frequency active sonar during the course of the eleven remaining exercises. On August 31, 2007, a motions panel of this court granted the Navy's motion to stay the preliminary injunction pending appeal. At oral argu ment held before this court on November 8, 2007, the Navy reported that since the stay was entered it has conducted one more exercise, and that an exercise cur rently underway would be completed by November 22, 2007. The Navy plans to conduct its next exercise in January 2008.
Plaintiffs have met the necessary burden of proof to demonstrate that some form of preliminary injunctive relief is appropriate. Specifically, Plaintiffs have shown a strong likelihood of success on the merits of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451 et seq., as well as the possibility of irreparable injury if relief is not granted. Plaintiffs have also shown that the balance of hardships tips in their favor if a properly tailored in junction is issued providing that the Navy's operations may proceed if conducted under circumstances that pro vide satisfactory safeguards for the protection of the en vironment. Moreover, the public interest would be ad vanced by an injunction that required adequate mitiga tion measures.
We agree with the motions panel that the "[t]he dis trict court did not explain why a broad, absolute injunc tion against the use of the medium frequency active so nar in these complex training exercises for two years was necessary to avoid irreparable harm to the environ ment." NRDC v. Winter, 502 F.3d 859, 863-64 (9th Cir. 2007). Injunctive relief must be tailored to remedy the specific harm alleged, and an overbroad preliminary injunction is an abuse of discretion. Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).
The motions panel was faced, however, with the all- or-nothing choice of staying the district court's blanket injunction pending our determination of this appeal, or denying the request for a stay entirely. The panel noted that "[w]e do not suggest whether an injunction allowing the exercises but subjecting them to mitigation mea sures might lead to a different result, because no such injunction is before us." NRDC, 502 F.3d at 864-65. Now that this matter has come to this court on its mer its, we are able to consider whether remanding for a more tailored injunction would be an appropriate rem edy.
Having heard arguments on that question and hav ing considered the effect that narrowly tailored mitiga tion conditions might have on the parties' interests, we conclude that such an injunction would be appropriate. In light of the Navy's past use of additional mitigation measures to reduce the harmful effects of its active so nar during its 2006 exercises in the Pacific Rim, and of the district court's longstanding involvement with this matter and its familiarity with the effectiveness and practicability of available mitigation measures, we va cate the stay and remand this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its train ing exercises. The district court shall determine the appropriateness of whatever conditions may be sug gested by either party, or may advance such conditions on its own.
So as to allow the Navy to complete the exercise that is currently in progress, the stay shall remain in effect until the end of the current exercise, or ten days from the date of this order, whichever is earlier. Once the stay is lifted, the preliminary injunction entered by the district court on August 7, 2007, shall take effect. The district court shall then conduct whatever hearings it deems reasonable or necessary, and enter an appropri ate preliminary injunction by January 4, 2008, the ear liest approximate date at which the Navy plans its next exercise. If the district court fails to modify the prelim inary injunction so as to include mitigation measures by January 4, 2008, the Navy may make a motion before this panel for reinstatement of the stay order. This pan el shall retain jurisdiction over any further motions, re quests for relief, or appeals in this matter. An opinion will follow.
The stay is VACATED as of the time provided above, and the matter is REMANDED for the district court to enter a modified preliminary injunction contain ing appropriate mitigating conditions.
APPENDIX H
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 07-56157
D.C. No. CV-07-00335-FMC
Central District of California, Santa Ana
NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE INTERNATIONAL FUND FOR ANIMAL WELFARE; CE TACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU, PLAINTIFFS-APPELLEES
v.
DONALD C. WINTER, SECRETARY OF THE NAVY; UNITED STATES DEPARTMENT OF THE NAVY; CARLOS M. GUTIERREZ, SECRETARY OF THE DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SER VICES; WILLIAM HOGARTH, ASSISTANT ADMINISTRA TOR FOR FISHERIES OF THE NATIONAL OCEANO GRAPHIC AND ATMOSPHERIC ADMINISTRATION; CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION, DEFENDANTS-APPELLANTS
Aug. 31, 2007
Before: ANDREW J. KLEINFELD, CONSUELO M. CALLAHAN, and MILAN D. SMITH, Jr., Circuit Judges.
Opinion by Judge KLEINFELD; Dissent by Judge MILAN D. SMITH, JR.
OPINION AND ORDER
KLEINFELD, Circuit Judge:
The Navy and environmental advocacy organizations have battled for years about whether Navy training us ing sonar is too harmful to the environment, particularly whales. The Navy uses something called medium fre quency active sonar, which basically bounces a loud noise off the hulls of extremely quiet submarines to de tect their presence. The loud noise may be quite harm ful to whales and other marine mammals. In a previous round of this litigation, the district court had approved a settlement that allowed Navy sonar training to pro ceed, but required mitigation measures. The measures consisted of such precautions as requiring some sailors to be on deck looking for whales, and reducing the deci bel level when whales were present, weather prevented seeing whether any whales were around, or "surface ducting" would let the noise carry more.12
In this round of the litigation, the Navy proposed to use medium frequency active sonar in training exercises off the coast of Southern California without mitigation measures. The record does not show why the Navy does not propose the mitigation measures it has previously used. The district court issued a preliminary injunction under the National Environmental Policy Act13 and the Coastal Zone Management Act.14 The injunction prohib its all use of medium frequency active sonar off the coast of Southern California during the fourteen large training exercises from 2007 to 2009.15 The district court did not tailor the injunction in any way, such as by re quiring the mitigation measures it had found sufficient before. The district court offers no more explanation of why the training could not be allowed to proceed with mitigation measures than the Navy does for why it does not want to commit itself to using mitigation measures. There is no explanation in the record for the breadth of the Navy's position or of the district court's injunction.
Medium frequency active sonar has proven to be the most effective method of detecting quiet-running diesel- electric submarines by emitting sound underwater at extreme pressure levels. The 2007 to 2009 exercises at issue were designed to train the full array of land, sea, undersea, and air components of the Pacific Fleet to perform successfully in complex, coordinated combat missions. An advocacy group, the Natural Resources Defense Council, and four other plaintiffs filed this ac tion against the Navy, alleging that by finding no signif icant environmental impact after an environmental assessment, instead of preparing a full environmental impact statement, and by concluding that there was no effect on coastal resources, the Navy violated the Na tional Environmental Policy Act,16 the Endangered Spe cies Act,17 the Administrative Procedures Act,18 and the Coastal Zone Management Act.19 Finding that the plain tiffs had demonstrated a high probability of success on the merits of all claims save the Endangered Species Act claim and a "near certainty" of irreparable harm to the environment, the district court enjoined the Navy from using medium frequency sonar during the fourteen challenged SOCAL training exercises.20 The Navy filed an emergency motion for stay of the injunction pending appeal, which we grant.
[1] Two standards affect our determination, the standard applicable to district courts for preliminary injunctions, and the standard for appellate courts for stays pending appeal. The district court must apply a four part standard, or a sliding scale. What is critical to our review for abuse of discretion21 is that the district court must consider not only the possibility of irrepara ble harm, but also, in appropriate cases, the public in terest. The public interest is not the same thing as the hardship to the party against whom the injunction was issued. Balance of hardships is the third factor, and the public interest is the fourth factor. They are separate:
Under the traditional test, a plaintiff must show: (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if prelim inary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases). The alternative test requires that a plaintiff demonstrate either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor. These two formulations re present two points on a sliding scale in which the re quired degree of irreparable harm increases as the probability of success decreases. They are not separate tests but rather outer reaches of a single continuum.22
The district court was required to consider, not only "balance of hardships'' as between the plaintiffs and the Navy as an Executive Branch agency, but also the "pub lic interest" in having a trained and effective Navy. We customarily give considerable deference to the Execu tive Branch's judgment regarding foreign policy and national defense.23
[2] The Supreme Court in Hilton v. Braunskill24 ar ticulated the similar standard appellate courts are re quired to apply for stays of civil judgments pending ap peal.25 This standard requires us to consider "where the public interest lies" separately from and in addition to "whether the applicant [for stay] will be irreparably injured absent a stay:"26
The factors regulating issuance of a stay [include]: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.27
Hilton emphasizes that even "failing" a strong likeli hood of success on the merits, the party seeking a stay may be entitled to prevail if it can demonstrate a "sub stantial case on the merits" and the second and fourth factors militate in its favor.28 The district court did not give serious consideration to the public interest factor. All our dissenting colleague can come up with is an oblique reference in the oral discussion preceding the order. All the order contains is a conclusory remark about "the harm the Defendants will suffer." That is the third factor, not the fourth. There is not a word in the order about the interest of the public, as distinguished from the interest of the Navy, in war preparedness:29
The Court is also satisfied that the balance of hard ships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public inter est outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period.30
The reference to "public interest" by the district court extends only to the interest in protecting marine mam mals, especially beaked whales, not the interest in na tional defense.
[3] The public does indeed have a very considerable interest in preserving our natural environment and es pecially relatively scarce whales.31 But it also has an interest in national defense. We are currently engaged in war, in two countries. There are no guarantees ex tending from 2007 to 2009 or at any other time against other countries deciding to engage us, or our determin ing that it is necessary to engage other countries. The safety of the whales must be weighed, and so must the safety of our warriors. And of our country.
Our dissenting colleague also argues that "the Navy is free to proceed at any time with its MFA sonar train ing exercises outside the SOCAL area that are similar to conditions in the SOCAL area." The environmental assessment,32 though, explains that "this particular loca tion" matters.33 According to that document, "[t]here is no duplicative location where land, sea, undersea and airspace assets are controlled by military authorities that allow full play and training by THIRD Fleet oper ational actors."34 The environmental assessment fur ther explains that none of the potential alternative loca tions, including Alaska and Hawaii, "provide the full complement of range infrastructure necessary to con duct typical, realistic, coordinated COMPTUEX and JTFEX training."35 Although one-time training opera tions have been conducted off Alaska and Hawaii, the environmental assessment says that "routine usage of these training areas for the major exercises is infeasi ble."36 Because the record offers no support for it, we respectfully disagree with our dissenting colleague's implication that the Navy ought to do whatever it needs to do someplace other than off the coast of Southern California.
[4] The district court did not explain why a broad, absolute injunction against the use of the medium fre quency active sonar in these complex training exercises for two years was necessary to avoid irreparable harm to the environment. The district court's previous ap proval of similar exercises subject to mitigation mea sures requires some explanation, which we cannot find in the order granting the injunction, for why that is no longer sufficient. Nor does the Navy explain why it no longer proposes to use these mitigation measures, a fac tor that militates against its probability of full success on the merits in district court. On appeal, though, be cause of the breadth of the injunction, and the district court's failure to consider the fourth factor, the Navy's probability of at least partial success on the merits is high. At the least, the Navy presents a "substantial"37 case on appeal, and the "second and fourth factors"38 militate in its favor. Applying independently on appeal our duty under Hilton39 to consider the fourth factor, the public interest, we are obligated to grant a stay pending appeal of the preliminary injunction.
Our conclusion is limited to what is before us, a dis trict court injunction absolutely prohibiting the Navy's use of medium frequency active sonar in its training program rather than tailoring the injunction with miti gation measures. We do not suggest whether an injunc tion allowing the exercises but subjecting them to miti gation measures might lead to a different result, be cause no such injunction is before us. The environmen tal assessment says that there would be no significant environmental impact if the Navy used lookouts for marine mammals, made binoculars available to the look outs, and reduced the noise during "surface ducting" conditions or when it was so foggy that the lookouts would not be able to see marine mammals.
Expeditious determination of this appeal can elimin ate a great deal of the risk to both our country and to marine wildlife. Accordingly, we order expedited brief ing and calendaring of this appeal. The provisions of Ninth Circuit rule 31-2.2(a) shall not apply to this ap peal. A briefing schedule is set out in a separate order. Any motions to extend time to file the briefs will be strongly disfavored.
The Navy's emergency motion to stay the prelimi nary injunction entered by the district court on August 7, 2007 is GRANTED.40
MILAN D. SMITH, JR., Circuit Judge, dissenting in part and concurring in part.
I respectfully dissent to the granting of a stay of the district court's preliminary injunction. The district court did not abuse its discretion when it issued a pre liminary injunction against the Navy's use of MFA so nar during certain planned exercises in the SOCAL range through January 2009.
The Navy has not shown a probability of success on the merits of this case or raised serious questions about the merits. In weighing the possibility of irreparable injury, balancing hardships, and determining where the public interest lies, the district court carefully consid ered and weighed the national security and public inter est issues presented by this case. Until very recently, the Navy employed some environmental mitigation mea sures it now rejects in the name of national security. Moreover, the Navy has the ability to continue training its personnel in the use of MFA sonar technology pen ding the outcome of the merits of this case by conduct ing MFA sonar exercises outside the SOCAL range. In fact, the district court received evidence that the Navy is testing MFA sonar technology "all over the world all the time." It is the Navy's sharp starboard tack from its recent training practices that has left it in irons fighting environmental laws, not a failure by the district court to consider national security or the public interest.
On appeal, we review the issuance of a preliminary injunction for abuse of discretion. Ashcroft v. ACLU, 542 U.S. 656, 664 (2004). Under the abuse of discretion standard, a reviewing court cannot reverse absent "a definite and firm conviction that the district court com mitted a clear error of judgment in the conclusion it reached upon weighing of the relevant factors." SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001).
The standard for determining whether to grant a stay pending appeal is similar to that applied by a dis trict court when considering the issuance of a prelimin ary injunction. Tribal Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir. 1988). A preliminary injunction may be issued when the moving party demonstrates "either: (1) a likelihood of success on the merits and the possibil ity of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hard ships tips sharply in [the moving party's] favor." Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) (quoting Clear Channel Outdoor Inc. v. City of Los An geles, 340 F.3d 810, 813 (9th Cir. 2003)).
As noted by the majority, we are also required to consider "where the public interest lies" in certain cas es. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Tay lor v. Westly, 488 F.3d 1197, 1200 (9th Cir. 2007). I re spectfully differ with the majority, however, concerning how the "public interest" consideration applies in this case. Department of Navy v. Egan, 484 U.S. 518 (1988), cited by the majority for the proposition that "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national secu rity matters," is distinguishable from the facts of this case. Egan involved the discharge of a Navy employee whose security clearance had been denied; it was not an environmental case. Id. at 522. The Supreme Court held that the authority to classify and control access to information bearing on national security and to deter mine which individuals have the right to access such information flows from the President's authority as Commander in Chief and exists apart from any explicit congressional grant. Id. at 527. It also noted a "'com pelling interest' in withholding national security infor mation from unauthorized persons in the course of exec utive business." Id. But "public interest" consider ations in environmental cases are very different from those in security clearance cases, and the military has long been required to comply with NEPA and numerous other environmental laws, even though national secu rity considerations have been involved. See, e.g., San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016, 1035 (9th Cir. 2006), and cases cited therein.
The majority also cites Hilton v. Braunskill, 481 U.S. 770 (1987), for the proposition that even "'failing' a strong likelihood of success on the merits, the party seeking a stay may be entitled to prevail if it can demon strate a 'substantial case on the merits' and the second and fourth factors militate in its favor." But Hilton was a habeas corpus case, not an environmental case, and deals with the standards for releasing a prisoner from confinement pending appeal. Id. at 775-76. The "public interest" considered in Hilton was whether the lower court could properly take the dangerousness of the ha beas petitioner into account as part of its decision whether to release the petitioner pending appeal. Id. at 777. The court concluded that the court may do so, des pite the traditional preference for release. Id. at 778. The "public interest" in this case is very different and constitutes a weighing between the "national security" public interest advocated by the Navy versus the envi ronmental "public interest" advocated by the Appellees. Hilton does not, in my view, permit this court to decline to consider the requirement that the Navy show a prob ability of success on the merits in order to grant a stay of the district court's injunction.
1. The Navy fails to meet its burden of showing pro bability of success on the merits and fails to raise ser ious questions going to the merits of this case. Although Congress could easily include a national security exemp tion in the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, it has not done so. As we stated in San Luis Obispo Mothers for Peace, 449 F.3d at 1035, "[t]here is no 'national defense' exception to NEPA. . . . The Navy, just like any federal agency, must carry out its NEPA mandate to the fullest extent possible and this mandate includes weighing the envi ronmental costs of the [project] even though the project has serious security implications." Id. (quoting No GWEN Alliance v. Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988)) (internal quotation marks omitted) (empha sis added). The Navy's Environmental Assessment ("EA") reports that the planned SOCAL exercises may result in approximately 170,000 "takes" of marine mam mals and, according to the district court's order, may include "approximately 8,000 exposures powerful enough to cause a temporary threshold shift in the af fected mammals' sense of hearing and an additional 466 instances of permanent injury to beaked and ziphiid whales." Our holding in Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998), in structs that in order for the plaintiffs to prevail on a claim that the Navy must prepare an Environmental Impact Statement ("EIS") for the SOCAL exercises, "a plaintiff need not show that significant effects will in fact occur. It is enough for the plaintiff to raise sub stantial questions whether a project may have a signifi cant effect on the environment." Id. at 1212 (internal quotation marks and citations omitted). The district court found that the Navy's EA and other evidence had shown to a "near certainty that the use of MFA sonar during planned SOCAL exercises will cause irreparable harm to the environment and to plaintiffs' declarants." Accordingly, it appears at this stage of the proceedings that the Navy will have to prepare an EIS before it en gages in its training exercises within the SOCAL area. 42 U.S.C. § 4332(2)(C); Native Ecosystems Council v. United States Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005). The Navy has not yet prepared an EIS, and it has not yet offered any legally viable defense to the EIS preparation requirement.
Similarly, the Navy failed to submit its sonar activi ties for a consistency determination to the Califor nia Coastal Commission ("CCC") as required by the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1456(c)(1), and then refused to comply with the Com mission's proposed mitigating measures, some of which are the same mitigation measures employed by the Navy from mid-2006 to January of 2007. As with NEPA, the Congress created no national security ex emption to the CZMA, and the Navy appears to be in violation of the CZMA. See id. The Navy has not yet offered any legally viable defense to its failure to comply with CZMA.
Accordingly, the Navy has not met its burden of showing probability of success on the merits and fails to raise serious questions going to the merits of this case. The majority does not address this required prong of the test the Navy must meet in order to obtain a stay. Hilton does not apply here, but even if it did, the Navy still cannot meet its burden to show that it has a "sub stantial case on the merits," as Hilton requires.
2. The Navy also fails to show that it will suffer irre parable harm if the stay is not granted or that the bal ance of hardships tips sharply in its favor. It also fails to make the case for a compelling public interest that overrides the Navy's probable violations of NEPA and CZMA. From mid-2006 to January of 2007, the Navy used a set of environmental mitigation measures for all MFA sonar exercises other than RIMPAC. It adopted similar measures when it conducted MFA sonar exer cises as part of the 2006 RIMPAC near Hawaii, and ad ded additional protections for planned chokepoint and isobath exercises. From mid-2006 to January of 2007, the Navy did not operate MFA sonar within twelve nau tical miles of the coast. From mid-2006 to January of 2007, the Navy enlarged the safety zone for marine mammals when certain significant surface ducting con ditions existed. From mid-2006 to January of 2007, the Navy followed certain procedures during low visibility conditions, whereby if detection of a marine mammal was not possible out to the prescribed safety zone, the Navy would power down sonar if marine mammals were present in the zones it could not use. From mid-2006 to approximately January of 2007, the Navy provided fo cused monitoring for mammals before, during and after chokepoint exercises.
And yet, commencing some time in early 2007, with out providing convincing (or in some cases, any) evi dence compelling its change in policy, the Navy has de clined to continue employing the referenced environ mental mitigation measures it used from mid 2006 to January of 2007, let alone been willing to adopt the fur ther measures sought by the CCC, that would likely have permitted it to conduct exercises in the SOCAL range.
There is no "national security trump card" that al lows the Navy to ignore NEPA to achieve other objec tives. By declining to write a national security exemp tion into NEPA, Congress has evidently concluded that it does not jeopardize national security to require the military to comply with NEPA, and the courts have agreed. See e.g., San Luis Obispo Mothers for Peace, 449 F.3d at 1035. Moreover, unless someone can demon strate that the Navy jeopardized our national security and failed to properly train our involved military per sonnel by adopting the referenced environmental miti gation measures during the period from mid-2006 to January 2007, it is hard to imagine why implementing some of those same environmental mitigation measures now would do so, especially if doing so would open the possibility of training within the SOCAL range.
3. As further evidence that neither the Navy nor na tional security will suffer irreparable harm or that the public interest will be harmed by leaving the district court's preliminary injunction in place pendente lite, the Navy has already completed three of its fourteen planned SOCAL exercises scheduled from February 2007 to January 2009. Even more importantly, given the limited language and scope of the injunction, the Navy is free to proceed at any time with its MFA sonar training exercises outside the SOCAL area that are sim ilar to the conditions in the SOCAL area. The majority says this is unpersuasive because the Navy claims "there is no duplicative location where land, sea, under sea and airspace assets are controlled by military au thorities that allow full play and training by THIRD Fleet operational actors." But the district court already considered this contention by the Navy and found as follows at the hearing for the preliminary injunction:
What is not clear from the papers nor was it ever fully addressed in the question of the Hawaii exer cises is the fact that this is not the only place in the world where this kind of testing can go on.
. . .
There is nothing before me to indicate there are not other places in the world where this testing could go on. And, in fact, in the larger lawsuit, the court has evidence that, in fact, testing is going on all over the world all the time. (emphasis added).
In making these findings, the district court considered the same classified documentation we did, as well as a far more extensive set of documents and studies. We traditionally defer to the findings of the district court concerning matters of fact. This should particularly be true here where much of the counter documentation of the appellees is not before us as it was before the dis trict court.
4. Unlike my colleagues in the majority, I am satis fied that the district court carefully weighed national security and public interest considerations before issu ing the preliminary injunction in this case. The record shows that the district court reviewed certain documen tation pertaining to national security matters in camera prior to issuing its injunction. The court transcript also shows clearly that the court carefully considered nation al security interests before issuing its injunction.
Well, let [me] say it is clear from your papers and from everything that I have read that the MFA ac tive sonar testing is important. It's critical to na tional security. I have absolutely no problem with that concept or the reality of it.
What is not clear from the papers nor was it ever fully addressed in the question of the Hawaii exer cises is the fact that this is not the only place in the world where this kind of testing can go on.
. . .
There is nothing before me to indicate there are not other places in the world where this testing could go on. And, in fact, in the larger lawsuit, the court has evidence that, in fact, testing is going on all over the world all the time.
So while I recognize the significance of saying these fourteen exercises cannot be conducted the way they've been proposed, which is with little or no mit igation, it does not mean that there will be no active MFA sonar testing for our Navy. That's not the result here.
. . .
The issues are tremendously important, and it's ne ver easy to balance something as significant as safe ty to wildlife with issues that may hinge on national security and injury or harm to the Navy.
I remain satisfied that the plaintiffs have established to a near certainty that the use of MFA sonar during planned SOCAL exercises will cause irreparable harm to the environment and to plaintiffs' decla rants.
The court is satisfied the balance of hardships tips in favor of granting the injunction as harm to the environment, plaintiffs, and the public interest out weighs harm to the defendants if they were preven ted from using MFA sonar in Southern California during these exercises without effective mitigation measures.
(emphasis added).
In light of the district court's actions and state ments, I find no abuse of discretion merely because the words "national security" do not appear in the district court's order granting the injunction. I also respectfully note that it is the Navy that has rejected mitigation measures, not the district court or the plaintiffs.
The district court did not abuse its discretion in han ding down its preliminary injunction, and I respectfully dissent.
I do concur with the majority that this case should be heard by a merits panel of our court at the earliest possible date. I also concur in the granting of plaintiff's motion to strike the "Unclassified Declaration Adden dum of David Yoshira [sic]."
12 See NRDC v. Winter, Settlement Agreement, CV-06-4131-FMC (C.D. Cal. July 7, 2006).
13 42 U.S.C. §§ 4321-4347.
14 16 U.S.C. § 1451 et seq.
15 NRDC v. Winter, Order, CV-07-00335-FMC at 20 (C.D. Cal. Aug. 7, 2007).
16 42 U.S.C. §§ 4321-4347.
17 16 U.S.C. § 1536.
18 5 U.S.C. § 551 et seq.
19 16 U.S.C. § 1451 et seq.
20 NRDC v. Winter, Order, CV-07-00335-FMC (C.D. Cal. Aug. 7, 2007).
21 See Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752 (9th Cir. 1982).
22 Taylor v. Westly, 488 F.3d 1197, 1200 (9th Cir. 2007) (emphasis ad ded).
23 E.g., Dep't of Navy v. Egan, 484 U.S. 518, 529 (1988) (noting that "unless Congress specifically has provided otherwise, courts tradition ally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."). The dissent argues that Egan was "not an environmental case" and that it relied heavily on "the President's authority as Commander in Chief." True, NEPA applies to the Navy, but that is not a distinction that makes a difference. There is no exception to the President's authority as Commander in Chief for environmental cases.
24 Hilton v. Braunskill, 481 U.S. 770 (1987).
25 The dissent accurately notes that Hilton involved a stay of a writ of habeas corpus, but erroneously argues that the Hilton standard would therefore not apply to an environmental case. The Court in Hil ton says that it is using "the traditional standards governing stays of ci vil judgments" to interpret the rules for stays of writs of habeas corpus, id. at 774 and "the factors regulating the issuance of a stay are gen erally the same," id. at 776. That leaves no room for the dissent's posi tion that they are not "generally the same" or that, as the dissent says, "Hilton does not apply here."
26 Id. at 776.
27 Id. (emphasis added); see Fed. R. Civ. P. 62(c); Fed. R. App. P. 8(a).
28 Hilton v. Braunskill, 481 U.S. 770, 778 (1987).
29 We reviewed classified documents submitted by the Navy to the district court and considered them in coming to our decision.
30 NRDC v. Winter, Order, CV-07-00335-FMC at 19 (C.D. Cal. Aug. 7, 2007).
31 The main argument of the dissent is that NEPA applies to the Navy. We do not disagree.
32 United States Navy, Composite Training Unit Exercises and Joint Task Force Exercises, Environmental Assessment/Overseas Environ mental Assessment, Final, available at http://www.navydocuments. com/documents/COMPTUEX-JTFEX%20EA-OEA.pdf (February 2007) (last visited Aug. 29, 2007).
33 Id. at 2-32.
34 Id.
35 Id. at 2-33.
36 Id.
37 See Hilton v. Braunskill, 481 U.S. 770, 778 (1987).
38 See id.
39 Id. at 776.
40 Natural Resources Defense Council's motion to strike the "Unclas sified Declaration Addendum of David Yoshihara," submitted by Defen dants-Appellants with their reply brief, is GRANTED, because it con tains new evidence not presented to the district court. See Fed. R. App. P. 10(a). All other motions are referred for consideration to the merits panel.
APPENDIX I
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. 8:07-cv-00335-FMC-FMOx
NATURAL RESOURCES DEFENSE COUNCIL,
INC., ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY, ET AL., DEFENDANTS
Aug. 7, 2007
ORDER DENYING DEFENDANTS' MOTION TO DISMISS OR STAY AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
FLORENCE-MARIE COOPER, Judge.
This matter is before the Court on Defendants' Mo tion to Dismiss or Stay (docket no. 14) and Plaintiffs' Motion for Preliminary Injunction (docket no. 21), filed June 22, 2007. The Court has read and considered the moving, opposition, and reply documents submitted in connection with these motions. The matter was heard on August 6, 2007, at which time the parties were in re ceipt of the Court's Tentative Order. For the reasons and in the manner set forth below, the Court hereby GRANTS IN PART AND DENIES IN PART Plaintiffs' Motion for Preliminary Injunction and DENIES Defen dants' Motion to Dismiss or Stay.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
This litigation arises out of the United States Navy's proposed use of mid-frequency active (MFA) sonar, a tool that has proven far more effective at detecting mod ern quiet-running diesel electric submarines than pas sive sonar. (Decl. of Capt. Martin May (May Decl.) ¶¶ 8-10.) MFA sonar, which generates underwater sound at extreme pressure levels, has the unfortunate side ef fect of harming marine life, up to and including causing death. (See, e.g., Decl. of Thomas Jefferson (Jefferson Decl.) ¶ 4 and sources cited therein.) The Navy plans to use MFA sonar during fourteen large-scale training ex ercises (involving various ships, submarines, amphibious vehicles, rotary and fixed-wing aircraft, and live ordin ance) off the coast of southern California between Feb ruary 2007 and January 2009. (Decl. of Luther Hajek (Hajek Decl.), Ex. 1 at 2-1 to 2-24.) The Navy's own En vironmental Assessment (EA) reports that these activi ties, comprised of Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Exercises (JTFEX), will result in approximately 170,000 "takes"41 of marine mammals. (Id. at 4-46 to 4-47.) These takes are predominantly "Level B harassment exposures," in which marine mammals would be subjected to sound lev els of between 170 and 195 decibels,42 but also include approximately 8,000 exposures powerful enough to cause a temporary threshold shift in the affected mam mals' sense of hearing and an additional 466 instances of permanent injury to beaked and ziphiid whales. (Id.)
Despite these findings, the Navy concluded that its JTFEX and COMPTUEX exercises in the Southern California Operating Area (SOCAL) would not cause a significant impact on the environment and on that basis decided that the National Environmental Policy Act (NEPA) did not require it to prepare an Environmental Impact Statement (EIS). In addition, the Navy deter mined that the use of MFA sonar would not affect nat ural resources in California's coastal zone and therefore submitted a "consistency determination" (CD) to the California Coastal Commission (CCC) for the exercises that did not take the planned use of MFA sonar into ac count. It also refused to adopt the mitigation measures the CCC subsequently determined were necessary for the Navy's actions to comply with the California Coastal Management Program (CCMP). (See Decl. of Cara Hor owitz (Horowitz Decl.), Ex. 67 at 9.)
On March 22, 2007, Plaintiffs, five environmental protection groups and Jean-Michel Cousteau, filed this action against Defendants, which include the United States Department of the Navy and the National Marine Fisheries Service (NMFS), seeking declaratory and injunctive relief for Defendant' violations of NEPA, the Endangered Species Act (ESA), the Administrative Pro cedures Act (APA), and the Coastal Zone Management Act (CZMA). On June 22, 2007, Plaintiffs moved for a preliminary injunction enjoining the Navy's use of MFA sonar during the SOCAL exercises "until the Navy ad opts mitigation measures that would substantially les sen the likelihood of serious injury and death to marine life." That same day, Defendants filed a Motion to Dis miss or Stay.
DISCUSSION
I. Defendants' Motion to Dismiss or Stay
Defendants have asked the Court, "for purposes of judicial economy," to exercise its inherent power to manage its docket by dismissing this action, which it argues is duplicative of Natural Res. Def. Council v. Winter, CV 05-7513 FMC (FMOx) (hereinafter NRDC I ), or staying the action pending resolution of NRDC I and California Coastal Comm'n v. U.S. Dep't of the Navy, CV 07-1899 FMC (FMOx). The Court finds that the instant case does not constitute "vexatious litiga tion," as Defendants argue, and declines to exercise its broad discretion in the service of judicial economy by dismissing or staying this subsequently filed action that involves additional parties, asserts new legal claims, and is premised on new factual developments, particularly where a dismissal or stay would likely preclude any re view of the claims on their merits until after completion of the challenged activities, which Plaintiffs contend will cause irreparable harm. Accordingly, the Court denies Defendants' Motion to Dismiss or Stay.
II. Plaintiffs' Motion for Preliminary Injunction
Plaintiffs have asked the Court to issue a prelimi nary injunction prohibiting the Navy from using MFA sonar during the remaining eleven SOCAL exercises. "A preliminary injunction may issue when the moving party demonstrates either '(1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.'" Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir. 2007) (quoting A & M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)); see also Cmty. House, Inc. v. City of Boise, 468 F.3d 1118, 1123 (9th Cir. 2006). "These two options represent extremes on a single continuum: 'the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor.'" Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007) (quoting Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam); see also A & M Records, 109 F.3d at 1013 (cri teria form a "sliding scale" whereby the required degree of harm increases as the likelihood of success decrea ses); United States v. Nutri-Cology, Inc., 982 F.2d 394, 398 (9th Cir. 1992) (same).
A. Probability of Success on the Merits
Plaintiffs allege that Defendants (1) failed to prepare a required EIS, (2) failed to prepare an adequate Envi ronmental Assessment, (3) failed to submit a consis tency determination that included all federal activities that would affect California's coastal zone to the CCC for consistency review, (4) failed to carry out federal activities that affect California's costal zone in a manner consistent with the CCMP, and (5) failed to prepare an adequate Biological Opinion (BiOp) and Incidental Take Statement (ITS). Having reviewed the voluminous evi dence the parties have presented, the Court finds that Plaintiffs have demonstrated a probability of success on the merits of their first four causes of action, for viola tions of NEPA, the APA, and the CZMA, but not their fifth cause of action, for violation of the ESA.
1. The National Environmental Policy Act (NEPA)
Plaintiffs contend that Defendants violated NEPA by (a) failing to prepare an EIS despite the potential for the challenged exercises to have a significant impact on the environment and (b) by failing to prepare an ade quate EA that considered the cumulative impacts of, and all reasonable alternatives to, the proposed actions.
In 1970, Congress passed the National Environmen tal Policy Act and declared "a national policy which will encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. The pur pose of NEPA was "to promote efforts which will pre vent or eliminate damage to the environment," as well as "to enrich the understanding of the ecological sys tems and natural resources important to the Nation." Id. NEPA does not contain any substantive require ments that dictate a particular result; instead, NEPA is aimed at ensuring agencies make informed decisions and "contemplate the environmental impacts of [their] actions." Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 104 L. Ed. 2d 351, 109 S. Ct. 1835 (1989) (concluding that NEPA "ensures that the agency, in reaching its decision, will have avail able, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementa tion of that decision.").
In addition to aiding internal agency decisionmaking, preparation and publication of an EIS "also serves a larger informational role. It gives the public the assur ance that the agency has indeed considered environmen tal concerns in its decisionmaking process, and, perhaps more significantly, provides a springboard for public comment." Robertson, 490 U.S. at 349 (internal quota tions and citations omitted).
In pursuit of these goals, NEPA mandates the prep aration of an EIS for all proposed "major Federal ac tions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The Ninth Cir cuit has interpreted this provision as requiring agencies to prepare an EIS "where there are substantial ques tions about whether a project may cause significant de gradation of the human environment." Native Ecosys tems Council v. United States Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) (emphasis in original). As the preparation of an EIS can be a costly and time-consum ing process, agencies first complete an EA. 40 C.F.R. § 1508.9. If, based on this assessment, the agency con cludes that the proposed actions will not significantly af fect the environment, it may issue a "Finding of No Sig nificant Impact" (FONSI) and forego completion of an EIS. Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir. 1988); 40 C.F.R. § 1508.13. Agencies must complete an EA and, as necessary, an EIS before reach ing a final decision or making an "irreversible and irre trievable commitment of the availability of resources." Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir. 1979).
Defendants insist that they were not required to pre pare an EIS, and that their issuance of a FONSI was proper, because the SOCAL exercises will not cause a significant impact on marine life. In the Ninth Circuit, courts reviewing an agency's decision not to prepare an EIS under NEPA "employ an arbitrary and capricious standard that requires [them] to determine whether the agency has taken a 'hard look' at the consequences of its actions, based its decision on a consideration of the rele vant factors, and provided a convincing statement of reasons to explain why a project's impacts are insigni ficant." Native Ecosystems Council v. U.S. Forest Ser vice, 428 F.3d 1233, 1239 (9th Cir. 2005) (internal quo tations and citations omitted). To prevail on a claim that an agency "violated its statutory duty to prepare an EIS, a plaintiff need not show that significant effects will in fact occur. It is enough for the plaintiff to raise substantial questions whether a project may have a sig nificant effect on the environment." Blue Mts. Biodi versity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal quotations and citations omitted).
The Court finds that Plaintiffs have raised substan tial questions as to whether the SOCAL exercises will have a significant impact on the environment. Mass strandings of several species of whales following naval exercises have been documented in the Bahamas, the Canary Islands, Hawaii, North Carolina, Japan, Greece, Spain, Taiwan, the Madeira archipelago, and the U.S. Virgin Islands. (See generally, Horowitz Decl. Exs. 1- 16.) Following comprehensive studies of these events, the International Whaling Commission's Scientific Com mittee concluded that "[t]he weight of accumulated evi dence now associates mid-frequency, military sonar with atypical beaked whale mass strandings. This evidence is very convincing and appears overwhelming." (Horo witz Decl, Ex. 1, Annex K at 9.) A study sponsored by the Navy's own Office of Naval Research similarly con cluded, "the evidence of sonar causation is, in our opin ion, completely convincing and that therefore there is a serious issue of how best to avoid/minimize future beaching events." (Horowitz Decl., Ex. 17 at 1 (conclud ing that a lack of understanding regarding the damage mechanism precluded modifications to the sonar wave form as a mitigation strategy and proposing alternative mitigation measures).)
Defendants argue that the circumstances in each of these numerous other stranding events are unique and distinguishable from what will occur in southern Cali fornia. Defendants note that they have been conducting naval exercises while using MFA sonar in the SOCAL range for thirty years and that there have been no strandings "alleged to be related to the Navy's use of MFA sonar," and that it simply "defies reason to argue that there have been adverse impacts that have gone un noticed all that time." The Court disagrees.
First, in light of how challenging it is to detect even the presence of deep diving beaked whales and other cetaceans particularly vulnerable to MFA sonar, a lack of documented evidence of the disturbance, injury, or even death of marine mammals in a particular geogra phic area does little to prove that MFA sonar never caused such adverse effects. Indeed, in its 2006 U.S. Pacific Marine Mammal Stock Assessment, the National Oceanic and Atmospheric Administration (NOAA) noted in its discussion of mortalities caused by anthropogenic noise, such as MFA sonar, that "[s]uch injuries or mor talities would rarely be documented, due to the remote nature of many of these activities and the low probabil ity that an injured or dead beaked whale would strand." (Horowitz Decl., Ex 46 at 151 (emphasis added).)
Second, the Navy's own EA predicts that the SOCAL exercises will disturb or injure nearly thirty species of marine mammals, including endangered and threatened species. As discussed above, the Navy's re port concludes that its actions will result in approxi mately 170,000 instances of Level B harassment, includ ing 8,000 temporary threshold shift (TTS) exposures and 466 cases of permanent injury to beaked and ziphiid whales. (Hajek Decl., Ex. 1 at 4-46 to 4-47.) The pre dicted permanent injury of 436 Cuvier's beaked whales is especially significant in light of NOAA's estimate that there are as few as 1,211 such whales remaining off the entire U.S. west-coast. The EA also predicts 710 "takes," including twenty-eight TTS exposures, of blue whales, fin whales, humpback whales, sei whales, and sperm whales-all of which are endangered species.
Boxed in by its own findings, the Navy has argued that its environmental assessment, on which it based its decision not to prepare an EIS, is methodologically flawed and inaccurate. Defendants contend that the EA makes a number of assumptions that led it to overesti mate the amount of harm the SOCAL exercises will cause, including: (1) marine mammals are uniformly distributed over the SOCAL range, (2) marine mammals have omni-directional hearing, (3) marine mammals would be exposed to the maximum sound intensity level based on their horizontal distance from its source, and (4) that marine mammals will not dive or exhibit other avoidance behavior.
The Court is simply not equipped to evaluate the merits of these contentions. It is not the place of law yers or the Court to conduct a de novo review of the sci entific conclusions of an agency, in this case revising the total number of takes and injuries by altering the underlying assumptions to the scientific study, and on that basis finding the SOCAL exercises will not have a significant impact on the environment. The Court has no basis with which to judge how and to what extent changing any of the challenged assumptions would im pact the Navy's prior conclusions.
Moreover, it is not even clear that the assumptions necessarily led to an overestimation of the number of takes. For example, if marine mammals were not, in fact, uniformly distributed over the SOCAL range, and instead were concentrated in the area where the exer cises took place, even more marine mammals would be harassed or injured than the EA predicts. In addition, rapid diving and avoidance behavior prompted by the use of MFA sonar has been associated with injuries such as hemorrhaging around the brain, ears, kidneys, and acoustic fats, acute spongiotic changes in the central nervous system, and gas/fat emboli and lesions in the liver, lungs, and other vital organs. (Decl. of Sentiel Rommel ¶ 7.) Failure to take such avoidance behavior into account may therefore also have led the Navy to un derestimate the number of takes that would occur.
Finally, Plaintiffs argue that Defendants' EA has ad ditional methodological deficiencies, such as using highly trained, captive animals desensitized to anthro pogenic noise to determine the sound level thresholds for harassment and injury, that lead it to "grossly underestimat[e] both the volume and severity of likely impacts on marine life." Although the number of takes listed in the EA are simply predictions, and may over or underestimate the actual harm that will occur, the Court is satisfied that the agency "made a reasoned decision based on its evaluation of the evidence." Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1301 (9th Cir. 2003) ("Because analysis of scientific data re quires a high level of technical expertise, courts must defer to the informed discretion of the responsible fed eral agencies."); Marsh v. Ore. Natural Res. Council, Inc., 490 U.S. 360, 378, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reason able opinions of its own experts, even if a court may find contrary views more persuasive.").
Based on the studies establishing a scientific consen sus on the correlation between the use of MFA sonar and mass whale strandings, the evidence indicating MFA sonar disrupts activities critical to marine mam mals' survival, such as food foraging and mating, and the conclusions of the Navy's own scientific study that the SOCAL exercises will cause 170,000 Level B harass ment exposures and 466 permanent injuries to marine mammals, including five endangered species, the Court finds that Plaintiffs have raised substantial questions as to whether the SOCAL exercises will have a significant impact on the environment. Plaintiffs have therefore demonstrated a probability of success on their claim that the Navy's failure to prepare and environmental impact statement was arbitrary and capricious and in violation of NEPA and the APA.
The Court further finds that Plaintiffs have demon strated a probability of success on their claims that De fendants' proposed mitigation measures were inade quate. An agency may avoid the requirement to prepare an EIS by adopting mitigation measures sufficient to el iminate any substantial questions over the potential for significant impact on the environment. National Parks & Conservation Ass'n, 241 F.3d at 733-34. ("In evalua ting the sufficiency of mitigation measures, we consider whether they constitute an adequate buffer against the negative impacts that may result from the authorized activity. Specifically, we examine whether the mitiga tion measures will render such impacts so minor as to not warrant an EIS."). The mitigation measures Defen dants have proposed in the instant case are far from suf ficient to obviate the need for an EIS. Ironically, Defendants have actually reduced their mitigation ef forts and adopted measures even less protective than those the Court previously found insufficient. (See CV 06-4131 FMC (FMOx), July 3, 2006, Temporary Re straining Order and July 5, 2006, Order Denying Defen dants' Ex Parte Applications.) The Navy has eliminated (1) its provisions requiring power-downs during surface ducting conditions (when sound travels greater dis tances), at night and in other low visibility conditions (when whales that would be affected are more difficult to see); (2) the twelve nautical mile coastal buffer zone, and (3) additional protection measures during "chokepoint" exercises.
What few mitigation measures remain continue to be ineffective. A "safety zone" of 1,000 yards, for example, does little to mitigate the impact of MFA sonar's effect on beaked whales where sound levels may not dissipate to sublethal levels for 5,000 meters. (See Horowitz Decl., Ex. 59 (acoustic energy map); Decl. of Linda Weilgart (noting mortality may occur at levels between 170-184 dB and as low as 150-155 dB); Decl. of Edward Parsons (Parsons Decl.) ¶ 17 (noting that sound can travel hundreds of miles under water).) The presence of visual monitors looking for whales is likewise of little value where beaked whales, which are the most suscep tible to injury from MFA sonar, are regularly sub merged in deep dives that last as long as sixty minutes. (Parsons Decl. ¶ 10; Horowitz Decl., Ex. 44 (study find ing a 5 percent chance under ideal conditions of observ ing the presence of beaked whales close to a vessel, and a 0 percent chance of detecting a beaked whale at 1 kilo meter using 7x binoculars).)
Plaintiffs have also demonstrated a probability of success on their claims that Defendants violated NEPA because their EA failed to consider reasonable alterna tives or cumulative impacts. The Ninth Circuit has con cluded that, in furtherance of NEPA's goal "that federal agencies infuse in project planning a thorough consider ation of environmental values," federal agencies must sufficiently study, develop, and describe alternatives as part of the "environmental decisionmaking process." Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988) (internal quotations and citations omit ted). The environmental decisionmaking planning pro cess requires the Navy to give "full and meaningful con sideration" to reasonable alternatives. Natural Resour ces Defense Council v. Evans, 279 F. Supp. 2d 1129, 1165-66 (N.D. Cal. 2003); see also National Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 733, (9th Cir. 2001) (" . . . repeated generic statement that the effects are unknown does not constitute the requisite 'hard look' mandated by the statute if preparation of an EIS is to be avoided").
As the Ninth Circuit has explained:
consideration of alternatives is critical to the goals of NEPA even where a proposed action does not trig ger the EIS process. This is reflected in the struc ture of the statute: while an EIS must also include alternatives to the proposed action, 42 U.S.C. § 4332(2)(C)(iii) (1982 ), the consideration of alterna tives requirement is contained in a separate subsec tion of the statute and therefore constitutes an inde pendent requirement. See id. § 4332(2)(E). The lan guage and effect of the two subsections also indicate that the consideration of alternatives requirement is of wider scope than the EIS requirement.
Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir.1988).
It does not appear that Defendants adequately consi dered reasonable alternative mitigation measures, such as those proposed by the CCC, used by allies such as Australia during exercises employing MFA sonar, or even those the Navy itself employed during RIMPAC 2006. (See Hajek Decl., Ex. 1 at 5-5 to 5-8 (succinctly dismissing ten proposals with little analysis and failing to discuss other alternatives).) Defendants also failed to consider any geographical alternatives, and its conclu sory single sentence argument that the SOCAL range is "uniquely situated to support these exercises" is insuf ficient to show that any alternatives would have been unreasonable, making consideration unnecessary. 'Ilio 'Ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1100-01 (9th Cir. 2006) (holding that Army violated NEPA by failing to consider a location other than Ha waii for transformation of an army brigade despite sta ted strategic importance of area and evidence that ac tion was "critical for the training of soldiers in condi tions that would arise in expected combat situations.").
Finally, Defendants failed to adequately consider the cumulative impacts of the SOCAL exercises. Despite the EA's conclusion that the SOCAL exercises will cause 8,000 TTS exposures and 466 instances of perma nent injury, and evidence that the Navy regularly con ducts unit level exercises using MFA sonar in the re gion, in one paragraph the EA dismissed the potential for cumulative impacts and concluded that the SOCAL exercises "would not have any significant contribution to the cumulative effects on marine mammals" based on the use of mitigation measures the Court has already found ineffectual. Although it is possible that the EA's findings could have been supported by further study and modeling incorporating the proposed mitigation measures, the EA's conclusion is unsupported by the assessment's current findings and model, and the failure to study and analyze the potential for such cumulative impacts in light of those findings renders the EA fatally inadequate. See Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 994 (9th Cir. 2004) ("A proper consideration of the cumulative impacts of a project re quires some quantified or detailed information; general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided. The analysis must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects." (internal quotations and citations omitted)).
2. The Coastal Zone Management Act (CZMA)
Plaintiffs contend that Secretary of the Navy Donald Winter and the United States Department of the Navy (Navy Defendants) violated the CZMA by submitting a CD to the CCC for the SOCAL exercises that did not take the planned use of MFA sonar into account and by failing to adopt the mitigation measures the CCC subse quently determined were necessary for the Navy's ac tions to comply with the CCMP. The CZMA requires that "[e]ach federal agency activity within or outside the coastal zone that affects any land or water use or natu ral resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent prac ticable with the enforceable policies of approved state management programs." 16 U.S.C. § 1456(c)(1). Under the CZMA, agencies must comply with "the enforceable policies of management programs unless full consis tency is prohibited by existing law applicable to the Federal agency." 15 C.F.R. § 930.32(a)(1). Agencies must also submit a CD "for all Federal agency activities affecting any coastal use or resource" to the applicable state agency. 15 C.F.R. 930.34. Although the CZMA lacks a citizen suit provision, judicial review of agency compliance is available pursuant to the APA. See, e.g., Friends of Earth v. United States Navy, 841 F.2d 927, 936 (9th Cir. 1988); 5 U.S.C. §§ 701-06. The burden of demonstrating maximum consistency practicable with the CCMP rests with the Navy. California Coastal Comm'n v. United States, 5 F. Supp. 2d 1106, 1112 (S.D. Cal. 1998).
The Navy Defendants argue that they were not re quired to analyze or discuss the proposed use of MFA sonar in the CD they submitted to the CCC because the MFA sonar use would not affect any costal resources. For the reasons that Defendants' determination that the SOCAL exercises would not have a significant impact on the environment was arbitrary and capricious, as dis cussed above, the Court finds that the Navy Defendants' determination that the use of MFA sonar in the SOCAL range would not affect any of California's coastal resources was similarly arbitrary and capricious and in violation of the APA.
The Navy Defendants have raised a number of ad ditional arguments in support of their decision under the CZMA, none of which the Court finds persuasive. First, they contend that because the exercises will take place at least five nautical miles from shore, and often at least twelve nautical miles from shore, and because Cali fornia's coastal zone extends only three nautical miles from shore, that there will be no impact on coastal re sources. However, as discussed above, MFA sonar can affect marine mammals, designated as coastal resources by statute, from miles away. (See, e.g., Parsons Decl. ¶ 17 (noting that "these military exercises may ensonify coastal waters, even though exercises may be conducted outside the coastal zone.") Moreover, consistency re view is triggered regardless of where the harm occurs if it affects coastal resources, which include marine mammals that are periodically within the coastal zone. 16 U.S.C. § 1456(c)(1)(A) ("Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable poli cies of approved State management programs.") (em phasis added); California v. Norton, 311 F.3d 1162, 1172 (9th Cir. 2002) (requiring consistency review of offshore oil leases where seismic surveys outside the coastal zone may permanently injure marine mammals); Jefferson Decl. ¶ 6 ("Most of the species regularly found in the exercise area may be expected to occur there within 3 nautical miles of shore, either exclusively as in the case of the coastal bottlenose dolphin or as part of their range").
Second, the Navy Defendants argue that temporary harassment of marine mammals is insufficient to con stitute an "activity . . . that affects" a natural resource because it does not cause injury. Even if this were true, Defendants' own EA predicts the use of MFA sonar dur ing the SOCAL exercises will cause 466 instances of permanent injury to beaked and ziphiid whales.
Third, the Navy Defendants insist that a consistency determination need not discuss an activity unless it will have a measurable impact on the "populations of marine mammals," and that, because there "have been no syste matic declines in any marine mammal populations dur ing the decades of MFA sonar use by the Navy," it was justified in not discussing its proposed use of MFA so nar. The Court has already addressed Defendants' "lack of documented population decline" argument in its discussion of Plaintiffs' NEPA claims, and it has even less force here where the burden rests on the Navy Defendants to demonstrate compliance. In addition, as the Ninth Circuit established in California v. Norton, federal activities "that may permanently injure marine mammals" affect coastal resources and require a consis tency determination; an impact on entire populations is not required. 311 F.3d at 1172 n.5. Moreover, Plaintiffs have presented evidence that the use of MFA sonar can detrimentally impact entire populations of species, given its potential to disrupt feeding and mating as well as damaging marine mammals' primary sense. (Parsons Decl. ¶¶ 7-9 (concluding that "there is significant poten tial for population-level effects from individual JTFEX and COMPTUEX exercises" and that even displacement from non-injurious, relatively low energy level sonic harassment "could have population-level effects, partic ularly if the displacement coincides with seasonal breed ing or foraging.").
Finally, the Navy Defendants argue that the mitiga tion measures the CCC required the Navy to employ during the SOCAL exercises in order to comply with the CCMP are not, in fact, required in order for the Navy to comply with the CCMP. They argue that the mitigation measures the Navy and NMFS have developed are suf ficient "to maintain healthy populations of marine mam mals in SOCAL." (Opp'n 23:14-15.) Defendants' pro posed mitigation measures are woefully inadequate and ineffectual, as discussed above, and Defendants have failed to establish that the CCC's proposed mitigation measures are either unnecessary or not required under the CCMP. Accordingly, the Court finds that Plaintiffs have demonstrated a probability of succeeding on the merits of their claims under the CZMA.
3. The Endangered Species Act (ESA)
Plaintiffs' fifth cause of action, against the National Marine Fisheries Service, Assistant Administrator for Fisheries William Hogarth, Administrator of the Na tional Oceanographic and Atmospheric Administration Vice Admiral Conrad Lautenbacher Jr., and Secretary of the Department of Commerce Carlos Gutierrez (col lectively NMFS Defendants), alleges that the NMFS Defendants failed to prepare an adequate Biological Op inion (BiOp) and Incidental Take Statement (ITS) in violation of the ESA and APA. Although courts have vacated BiOps and ITSs that contained "structural flaws," the Court is satisfied that the NMFS Defendants in this case met their statutory obligation to "use the best scientific and commercial data available." 16 U.S.C. § 1536(a)(2); Nat'l Wildlife Fed'n v. Nat'l Ma rine Fisheries Serv., 481 F.3d 1224, 1239 (9th Cir. 2007) (upholding a finding that NMFS violated the ESA where, "[a]t its core, the 2004 BiOp amounted to little more than an analytical slight [sic] of hand, manipulat ing the variables to achieve a 'no jeopardy' finding. Sta tistically speaking, using the 2004 BiOp's analytical framework, the dead fish were really alive. The ESA requires a more realistic, common sense examination.").
Plaintiffs argue that NMFS's BiOp and ITS did not "use the best scientific and commercial data available" because they relied on the Navy's flawed acoustic mod els and adopted the Navy's exposure thresholds from its EA to determine the number of takes. As discussed ab ove, the Court is satisfied with the methodology and conclusions employed by the agency experts in reaching their conclusions as to the number of takes. It does not find that there are any "structural flaws" in the BiOp or ITS, and, as Defendants note, NMFS properly consid ered the vast universe of available data on the impact of MFA sonar.
Plaintiffs also argue that NMFS's analysis of acou stic impacts on endangered and threatened fish species were inadequate and that NMFS failed to consider cum ulative impacts. The Court disagrees. Having carefully reviewed the BiOp and ITS, it finds that these issues were properly considered and, unlike the conclusory fin dings regarding cumulative impacts in the Navy's EA, sufficiently analyzed. Accordingly, the Court finds that Plaintiffs have failed to demonstrate a probability of success on their claim against the NMFS Defendants for violation of the ESA and APA.
B. Possibility of Irreparable Harm
Plaintiffs have demonstrated that MFA sonar can in jure and kill marine mammals, as well as cause popula tion-affecting levels of disruption. Defendants' own stu dy concludes that the SOCAL exercises in particular will cause widespread harm to nearly thirty species of marine mammals, including five species of endangered whales, and may cause permanent injury and death.
Where, as here, plaintiffs demonstrate a strong like lihood of prevailing on the merits of their claims, injunc tive relief is appropriate where there is a "possibility of irreparable harm." Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir. 2007); Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006); Cmty. House, Inc. v. Ci ty of Boise, 468 F.3d 1118, 1123 (9th Cir. 2006). The Su preme Court has held that, "[e]vironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is suffi ciently likely, therefore, the balance of harms will usu ally favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Vill of Gambell, 480 U.S. 531, 545, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987); see also Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1125 (9th Cir. 2005).
From the numerous scientific studies, declarations, reports, and other evidence before the Court, Plaintiffs have established to a near certainty that use of MFA so nar during the planned SOCAL exercises will cause ir reparable harm to the environment and Plaintiffs' stan ding declarants. The Court is also satisfied that the bal ance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would in cur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a lim ited period. Accordingly, the Court grants Plaintiffs' requested relief and enjoins Defendants' use of MFA sonar during the remaining SOCAL exercises.
CONCLUSION
For the foregoing reasons, the Court hereby DE NIES Defendants' Motion to Dismiss or Stay (docket no. 14). In addition, Defendants' request during oral argu ment for a stay of the requested injunctive relief pen ding appeal is DENIED.
The Court GRANTS Plaintiffs' Motion for Prelimi nary Injunction (docket no. 21) as to Plaintiffs' first four causes of action, for violations of NEPA, the CZMA, and the APA, and DENIES Plaintiffs' Motion as to Plaintiffs' fifth cause of action for violation of the ESA and the APA.
Defendants are hereby enjoined from using MFA sonar during the fourteen challenged COMPTUEX and JTFEX exercises planned in the SOCAL range through January 2009.
IT IS SO ORDERED.
41 The term "take," as defined in the Endangered Species Act, means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or col lect, or to attempt to engage in any such conduct." 16 U.S.C. § 15632(19).
42 Decibels are a logarithmic measurement, such that an increase of 10 dB is equivalent to a tenfold increase in acoustic energy. To put these sound levels in perspective, OSHA requires hearing protection to be used where workers are exposed to a sound level of 90 dB for eight hours or 110 dB for as little as thirty minutes. 29 C.F.R. § 1910.95(a).
43 The National Defense Authorization Act of 2004 amended the MMPA by
inserting an exemption from the moratorium on taking of marine mammals for
national defense activities provided the Secretary of Defense determines,
after conferring with the Secretary of Com merce, that an exemption is necessary
for the national defense. Such exemption may be invoked for a period of
up to two years. The Department of Defense invoked the NDE in January 2007
for two years to provide time to process incidental take authorization for
its major training ranges pursuant to section 101(a)(5)(A) of the MMPA,
16 U.S.C. § 1371(a)(5)(A).
APPENDIX J
[Seals Omitted]
DEPUTY SECRETARY OF DEFENSE
1010 Defense Pentagon
Washington, D.C. 20301-1010
[Jan. 23, 2007]
MEMORANDUM FOR SECRETARY OF THE NAVY
SUBJECT: National Defense Exemption from Re quirements of the Marine Mammal Pro tection Act for Certain DoD Military Readiness Activities That Employ Mid- Frequency Active Sonar or Improved Ex tended Echo Ranging Sonobuoys
Pursuant to Title 16, Section 1371(f), of the United States Code, and having conferred with the Secretary of Commerce, I have determined that it is necessary for the national defense to exempt all military readiness ac tivities that employ mid-frequency active sonar or Im proved Extended Echo Ranging sonobuoys (IEER), ei ther during major training exercises, or within estab lished Department of Defense maritime ranges or estab lishes operating areas, from compliance with the re quirements of the Marine Mammal Protection Act, Title 16, Section 1361-1421h, of the United States Code. For purposes of this exemption, mid-frequency active sonar is defined as those active sonar systems operating within the frequency range of 1 kHz to 10 kHz. IEER is a new sensor system that is finishing development and nearing deployment. A military readiness activity is defined in Section 315(f) of Public Law 107-314.
Specific actions falling within these categories of ac tions are exempted for a period of two years from to day's date, or the date at which the Department of Navy is granted authorization under the Marine Mammal Pro tection Act for one or both of these categories of actions as associated with a specific proposed activity, which ever is earliest. In the event the exemption terminates as to a specific proposed activity having been granted authorization under the Marine Mammal Protection Act for one or both of these categories of actions, the exemp tion shall remain in full force and effect as to all other exempted categories of actions.
During the exemption period, the Department of Na vy will execute the plan coordinated with the Depart ment of Commerce to come into full compliance with the requirements of the Marine Mammal Protection Act. During this exemption period, all exempted military readiness activities employing mid-frequency active so nar shall follow the attached "Mid-Frequency Active So nar (MFAS) Mitigation Measures during Major Train ing Exercises or within Established DoD Maritime Ran ges and Established Operating Areas." Before using IEER for training, the Department of the Navy will de velop with the National Marine Fisheries Service mutu ally agreeable mitigation measures applicable to IEER as information evolves on its use and tactics.
/s/ GORDON ENGLAND
Attachment:
Mid-Frequency Active Sonar (MFAS) Mitigation Measures during Major Training Exercises or within Established DoD Maritime Ranges and Established Operating Areas
ATTACHMENT
Mid-Frequency Active Sonar Mitigation Measures during Major Training Exercises or within Established DoD Maritime Ranges and Established Operating Areas
1. General Maritime Protective Measures: Personnel Training:
1. All lookouts onboard platforms involved in ASW training events will review the NMFS- approved Marine Species Awareness Training (MSAT) material prior to use of mid-frequency active sonar (MFA).
2. All Commanding Officers, Executive Officers, and officers standing watch on the bridge will have reviewed the MSAT material prior to a training event employing the use of MFA.
3. Navy lookouts will undertake extensive train ing in order to qualify as a watchstander in accordance with the Lookout Training Hand book (NAVEDTRA 12968-B).
4. Lookout training will include on-the-job in struction under the supervision of a qualified, experienced watchstander. Following success ful completion of this supervised training per iod, lookouts will complete the Personal Qualifi cation Standard program, certifying that they have demonstrated the necessary skills (such as detection and reporting of partially submerged objects). This does not preclude personnel be ing trained as lookouts from being counted as those listed in previous measures so long as su pervisors monitor their progress and perfor mance.
5. Lookouts will be trained in the most effective means to ensure quick and effective communi cation within the command structure in order to facilitate implementation of protective mea sures if marine species are spotted.
II. General Maritime Protective Measures: Lookout and Watchstander Responsibilities:
6. On the bridge of surface ships, there will al ways be at least three people on watch whose duties include observing the water surface around the vessel.
7. In addition to the three personnel on watch no ted previously, all surface ships participating in ASW exercises will, have at all times during the exercise at least two additional personnel on watch as lookouts.
8. Personnel on lookout and officers on watch on the bridge will have at least one set of binocu lars available for each person to aid in the de tection of marine mammals.
9. On surface vessels equipped with MFA, pedes tal-mounted "Big Eye" (20x110) binoculars will be present and in good working order to assist in the detection of marine mammals in the vicinity of the vessel.
10. Personnel on lookout will employ visual search procedures employing a scanning methodology in accordance with the Lookout Training Hand book (NAVEDTRA 12968-B).
11. After sunset and prior to sunrise, lookouts will employ Night Lookouts Techniques in accor dance with the Lookout Training Handbook.
12. Personnel on lookout will be responsible for re porting all objects or anomalies sighted in the water (regardless of the distance from the ves sel) to the Officer of the Deck, since any object or disturbance (e.g., trash, periscope, surface disturbance, discoloration) in the water may be indicative of a threat to the vessel and its crew or indicative of a marine species that may need to be avoided as warranted.
III. Operating Procedures
13. A Letter of Instruction, Mitigation Measures Message, or Environmental Annex to the Oper ational Order will be issued prior to the exer cise to disseminate further the personnel train ing requirement and general marine mammal protective measures.
14. Commanding Officers will make use of marine species detection cues and information to limit interaction with marine species to the maxi mum extent possible consistent with safety of the ship.
15. All personnel engaged in passive acoustic sonar operation (including aircraft, surface ships, or submarines) will monitor for marine mammal vocalizations and report the detection of any marine mammal to the appropriate watch sta tion for dissemination and appropriate action.
16. During MFA operations, personnel will utilize all available sensor and optical systems (such as Night Vision Goggles to aid in the detection of marine mammals.
17. Navy aircraft participating in exercises at sea will conduct and maintain, when operationally feasible and safe, surveillance for marine spe cies of concern as long as it does not violate safety constraints or interfere with the accom plishment of primary operational duties.
18. Aircraft with deployed sonobuoys will use only the passive capability of sonobuoys when mar ine mammals are detected within 200 yards of the sonobuoy.
19. Marine mammal detections will be immediately reported to the assigned Aircraft Control Unit for further dissemination to ships in the vicinity of the marine species as appropriate when it is reasonable to conclude that the course of the ship will likely result in a closing of the distance to the detected marine mammal.
20. Safety Zones - When marine mammals are de tected by any means (aircraft, shipboard look out, or acoustically) within 1,000 yards of the sonar dome (the bow), the ship or submarine will limit active transmission levels to at least 6 dB below normal operating levels.
(i) Ships and submarines will continue to limit maximum transmission levels by this 6-dB fac tor until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection.
(ii) Should a marine mammal be detected within or closing to inside 500 yards of the sonar dome, active sonar transmissions will be limited to at least 10 dB below the equipment's normal operating level. Ships and submarines will con tinue to limit maximum ping levels by this 10- dB factor until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last de tection.
(iii) Should the marine mammals be detected within or closing to inside 200 yards of the so nar dome, active sonar transmissions will cease. Sonar will not resume until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection.
(iv) Special conditions applicable for dolphins and porpoises only: If, after conducting an ini tial maneuver to avoid close quarters with dol phins or porpoises, the Officer of the Deck con cludes that dolphins or porpoises are deliber ately closing to ride the vessel's bow wave, no further mitigation actions are necessary while the dolphins or porpoises continue to exhibit bow wave riding behavior.
(v) If the need for power-down should arise as detailed in "Safety Zones" above, the ship or submarine shall follow the requirements as though they were operating at 235 dB - the nor mal operating level (i.e., the first power-down will be to 229 dB, regardless of at what level ab ove 235 sonar was being operated).
2l. Prior to start-up or restart of active sonar, op erators will check that the Safety Zone radius around the sound source is clear of marine mammals.
22. Sonar levels (generally)-The ship or submarine will operate sonar at the lowest practicable level, not to exceed 235 dB, except as required to meet tactical training objectives.
23. Helicopters shall observe/survey the vicinity of an ASW exercise for 10 minutes before the first deployment of active (dipping) sonar in the wa ter.
24. Helicopters shall not dip their sonar within 200 yards of a marine mammal and shall cease pinging if a marine mammal closes within 200 yards after pinging has begun.
25. Submarine sonar operators will review detec tion indicators of close-aboard marine mam mals prior to the commencement of ASW oper ations involving active mid-frequency sonar.
26. Increased vigilance during major ASW training exercises with tactical active sonar when criti cal conditions are present:
Based on lessons learned from strandings in the Bahamas (2000), the Madeiras (2000), the Canaries (2002) and Spain (2006), beached whales are of particular concern since they have been associated with MFA operations. Navy should avoid planning major ASW train ing exercises with MFA in areas where they will encounter conditions that, in their aggre gate, may contribute to a marine mammal stranding event.
The conditions to be considered during exercise planning include:
(1) Areas of at least 1,000 m depth near a shoreline where there is a rapid change in bathymetry on the order of 1,000-6,000 meters occurring across a relatively short horizontal distance (e.g., 5 nm).
(2) Cases for which multiple ships or sub marines (Æ 3) operating MFA in the same area over extended periods of time (Æ 6 hours) in close proximity ( 10 nm apart).
(3) An area surrounded by land masses, sep arated by less than 35 nm and at least 10 nm in length, or an embayment, wherein operations involving multiple ships/subs (Æ 3) employing MFA near land may produce sound directed toward the channel or embayment that may cut off the lines of egress for marine mammals.
(4) Although not as dominant a condition as bathymetric features, the historical presence of a significant surface duct (i.e., a mixed layer of constant water temperature extending from the sea surface to 100 or more feet).
If the major exercise must occur in an area where the above conditions exist in their aggre gate, these conditions must be fully analyzed in environmental planning documentation. Navy will increase vigilance by undertaking the fol lowing additional protective measure:
A dedicated aircraft (Navy asset or contracted aircraft) will undertake reconnaissance of the embayment or channel ahead of the exercise participants to detect marine mammals that may be in the area exposed to active sonar. Where practical, advance survey should occur within about two hours prior to MFA use, and periodic surveillance should continue for the duration of the exercise. Any unusual condi tions (e.g., presence of sensitive species, groups of species milling out of habitat, any stranded animals) shall be reported to the Officer in Tac tical Command (OTC), who should give consi deration to delaying, suspending or altering the exercise.
All Safety Zone requirements described in Measure 20 apply.
The post-exercise report must include specific reference to any event conducted in areas where the above conditions exist, with exact lo cation and time/duration of the event, and no ting results of surveys conducted.
IV. Coordination and Reporting
27. Navy will coordinate with the local NMFS Stranding Coordinator regarding any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that may occur at any time during or within 24 hours after completion of mid-frequency active sonar use associated with ASW training activi ties.
28. Navy will submit a report to the Office of Pro tected Resources, NMFS, within 120 days of the completion of a Major Exercise. This re port must contain a discussion of the nature of the effects, if observed, based on both modeled results of real-time events and sightings of marine mammals.
29. If a stranding occurs during an ASW exercise, NMFS and Navy will coordinate to determine if MFA should be temporarily discontinued while the facts surrounding the stranding are collected.
APPENDIX K
THE WHITE HOUSE
WASHINGTON
January 15, 2008
MEMORANDUM FOR
THE SECRETARY OF DEFENSE
THE SECRETARY OF COMMERCE
SUBJECT: Presidential Exemption from the Coastal Zone Management Act
By the authority vested in me as President by the Con stitution and the laws of the United States, including section 1456(c)(1)(B) of title 16, United States Code, and to ensure effective and timely training of the United States naval forces in anti-submarine warfare using mid-frequency active sonar:
I hereby exempt from compliance with the requirements of section 1456(c)(1)(A) of title 16 (section 307 (c)(1)(A) of the Coastal Zone Management Act) those elements of the Department of the Navy's anti-submarine warfare training during Southern California Operating Area Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Exercises (JTFEX) involving the use of mid-frequency active sonar. These exercises are more fully described in the Environmental Assessment/ Overseas Environmental Assessment prepared for the Commander, United States Pacific Fleet, dated Febru ary 2007.
On January 3, 2008, as modified on January 10, 2008, the United States District Court for the Central District of California determined that the Navy's use of mid-fre quency active sonar was not in compliance with section 1456(c)(1)(A), and issued an order that is appealable un der section 1291 or 1292 of title 28, United States Code. On January 11, 2008, the Secretary of Commerce made a written request that the Navy be exempted from com pliance with section 1456(c)(1)(A) in its use of mid-fre quency active sonar during COMPTUEX and JTFEX. As part of that request, the Secretary of Commerce cer tified that mediation under section 1456(h) is not likely to result in the Navy's compliance with section 1456(c)(1)(A).
I hereby determine that the COMPTUEX and JTFEX, including the use of mid-frequency active sonar in these exercises, are in the paramount interest of the United States. Compliance with section 1456(c)(1)(A) would un dermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effec tiveness of carrier and expeditionary strike groups. This exemption will enable the Navy to train effectively and to certify carrier and expeditionary strike groups for deployment in support of world-wide operational and combat activities, which are essential to national secur ity.
/s/ GEORGE BUSH
39.
APPENDIX L
[Seal Omitted]
CHAIRMAN
EXECUTIVE OFFICE OF THE PRESIDENT
COUNCIL ON ENVIRONMENTAL QUALITY
Washington, D.C. 20503
January 15, 2008
The Honorable Donald C. Winter
Secretary of the Navy
The Pentagon
Washington, D.C. 20350
SUBJECT: Emergency Alternative Arrangements for the U.S. Navy's Use of MFA Sonar in the Southern California Operating Area Com posite Training Unit Exercises and Joint Task Force Training Exercises Scheduled to Occur through January 23, 2009
Dear Secretary Winter:
I am responding to your request of January 10, 2008, supplemented by your letter of January 11, 2008, seek ing to obtain Council on Environmental Quality (CEQ) approval of alternative arrangements pursuant to 40 C.F.R. § 1506.11 for implementing the procedural pro visions of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA). The CEQ regulations implementing the procedural provisions of NEPA pro vide that where emergency circumstances make it nec essary to take an action without observing the normal procedures set forth in those regulations, the federal agency taking the action should consult with CEQ about alternative arrangements for compliance with NEPA.
The United States Navy is requesting that CEQ pro vide for alternative arrangements for NEPA compliance for the Navy's proposed use of mid-frequency active ("MFA") sonar during Commander THIRD Fleet's nine (9) training exercises, four (4) Composite Unit Training Exercises ("COMPTUEX") and five (5) Joint Task Force Exercises ("JTFEX"), in the Southern California ("SOCAL") Operating Area. Your request and these al ternative arrangements are based on the SOCAL Oper ating Area climate, weather conditions, land mass distri bution, and the MFA training proposed for the four COMPTUEX and five JTFEX scheduled between today and January 23, 2009.
The COMPTUEX and JTFEX are major warfare training exercises that are required to certify naval Strike Groups as ready for deployment into combat op erations. Strike Groups are a package or formation of Navy ships that function as a Carrier Strike Group or an Expeditionary Strike Group. A Carrier Strike Group is formed around an Amphibious Assault Ship with an em barked Marine Expeditionary Unit and is able to move embarked Marine Expeditionary Unit elements ashore via helicopter or amphibious-type craft. MFA sonar is defined as an active sonar system that operates within the 1 kHz to 10 kHz frequency range and MFA sonar capability allows the Strike Group to defend itself against quiet diesel electric submarines that may come within range or attack any of the ships in the Strike Group.
The SOCAL Operating Area is uniquely suited to conducting the Navy COMPTUEX and JTFEX because it contains all of the land, air, and at-sea bases neces sary for conducting the exercises, and the shallow coastal areas in SOCAL realistically simulate areas where the Navy is likely to encounter hostile subma rines. The SOCAL Operating Area includes Warning Area 291 (W-291), and the Southern California Antisub marine Warfare Range (SOAR). The use of MFA sonar will be within W-291 and SOAR (Attachment A). SOAR is an instrumented underwater range which allows the Navy to monitor and evaluate the success of the Strike Group training. The Navy has conducted MFA sonar training exercises in the Southern California Operating Area since at least the 1970s.
The Navy is currently evaluating the environmental impact of MFA sonar training exercises through its de velopment of the SOCAL Range Complex Environmen tal Impact Statement (SOCAL EIS). The Navy began the SOCAL EIS process in late 2006 and published its notice of intent on December 21, 2006. That EIS will meet the procedural requirements of NEPA for all training, including MFA sonar training in SOCAL. To comply with NEPA procedural requirements while de veloping the EIS, the Navy prepared an environmental assessment of the SOCAL training proposed for the time period prior to completion of the EIS. In addition, the Navy issued a consistency determination in accor dance with the procedural requirements of the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq. (CZMA).
In January 2007, the Deputy Secretary of Defense issued a National Defense Exemption (NDE) under the Marine Mammal Protection Act (MMPA) (16 U.S.C. § 1371(f)). The NDE provides for protection of marine mammals in the absence of an MMPA Letter of Auth orization by including 29 specific conditions to minimize potential impacts on marine mammals. These 29 miti gation measures were developed in coordination with the National Marine Fisheries Service (NMFS), the agency with substantive responsibility for marine mam mals. The NDE allows time for the Navy to executive a plan coordinated with the Department of Commerce to obtain a Letter of Authorization under the usual proce dural requirements of the MMPA. The plan calls for the Navy to complete the usual MMPA process in conjunc tion with the SOCAL EIS process by the time the NDE expires on January 23, 2009. The likely effects of MFA sonar training on threatened and endangered marine mammals were further analyzed in consultation with NMFS under section 7 of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA). In February of 2007, the Navy concluded consultation with NMFS, which is sued a Biological Opinion that includes an incidental take statement that exempts the Navy from the prohi bitions in section 9 of the Endangered Species Act through January 2009.
The Navy began the SOCAL EIS process that in cludes analysis of MFA sonar training and prepared the environmental assessment in an effort to provide pro cedural NEPA compliance for COMPTUEX and JTFEX training in the SOCAL Operating Area. The Navy is preparing the draft SOCAL EIS for publication in early 2008. The draft EIS will include an analysis of the di rect, indirect, and cumulative effects of MFA sonar training on marine mammals and provide the basis for finalizing mitigation measures for the use of MFA sonar in the SOCAL Operating Area. The requested alterna tive arrangements are intended to provide a process for environmental impact assessment and decision-making for the nine exercises, four COMPTUEX and five JTFEX, involving MFA sonar to be conducted prior to January 23, 2009, or completion of the SOCAL EIS pro cess, whichever is earlier.
The record supporting the Navy request includes: your letters to CEQ dated January 10 and 11, 2008, with attachments; classified and unclassified briefing mater ials provided to CEQ by the Navy; CEQ discussions with NMFS; the environmental analyses conducted by the Navy in the environmental assessment for proposed COMPTUEX and JTFEX exercises and in the prelimin ary draft environmental impact statement for the SO CAL Range Complex; the February 9, 2007, Biological Opinion issued by NMFS pursuant to Section 7 of the ESA; after action report analyses prepared for NMFS by the Navy (Attachment B-G); the January 23, 2007, NDE; and the January 9, 2008, most recent review of the environmental effects of MFA sonar training in the SOCAL Operating Area by NMFS (Attachment H).
In its most recent review, NMFS considered the ef fects of Navy training exercises in SOCAL on marine mammals in and adjacent to the Navy's SOCAL Operat ing Area. James H. Lecky, the Director of the NMFS Office of Protected Resources, determined that while there is some potential for injury, the mitigation meas ures employed as a result of the NDE and the reporting and monitoring measures outlined in the Biological Opinion will minimize that risk to marine mammals in and adjacent to the exercise area. This review con cludes that "NMFS does not expect the COMPTUEX and JTFEX exercises [through January 23, 2009] to result in adverse population level effects for any of the marine mammal populations." (Attachment H).
The record supporting the Navy request also in cludes the Orders issued January 3, 2008, and January 10, 2008, by the U.S. District Court for the Central Dis trict of California. The District Court has preliminarily determined that an environmental impact statement is necessary for these MFA sonar exercises in the SOCAL Operating Area. Following the November 13, 2007, Or der from the Ninth Circuit Court of Appeals, the Dis trict Court issued the January 3, 2008, injunction allow ing the exercises to proceed subject to specified mitiga tion measures. Those mitigation measures were modi fied by the January 10, 2008, order. Your letter of Jan uary 11, 2008, further informed me that the modified in junction imposes training restrictions, in particular the unaltered 2200 yard shut down requirement and the 6 dB power down requirement during significant surface ducting conditions, that continue to create a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable.
You have explained that the training restrictions set forth in the January 3, 2008, and January 10, 2008, in junctive orders prevent the Navy from providing Strike Groups with adequate proficiency training and create a substantial risk of precluding certification of the Strike Groups as combat ready in order to be deployed. Train ing in the use of MFA sonar is a vital component of the pre-deployment training in COMPTUEX and JTFEX. The use of MFA sonar is complex and requires constant training in realistic combat scenarios to maintain profic iency. MFA sonar is the Navy's best means of detecting potentially hostile diesel-electric submarines. The pri mary Strike Group targets of hostile submarines are the Navy aircraft carrier, which typically carries over 5300 servicemen and civilians, and the Amphibious Assault Ship carrying a Marine Expeditionary Unit. Thus, the inability to train effectively with MFA sonar puts the lives of thousands of Americans directly at risk. If a Strike Group does not gain proficiency in MFA sonar, and cannot be certified as combat ready, the broader na tional security implications are enormous, and the harm quickly compounds if additional Strike Groups cannot be certified. Lack of such certification places at risk the logistical, defensive and offensive capabilities of these Strike Groups in the event of an undetected attack, fur ther placing at risk the lives of the military and civil ser vice personnel that the Strike Groups support and de fend. Because of the unique features of the SOCAL area and the availability of the land, sea, and air bases, the exercises need to be conducted in the SOCAL Range Complex through January 23, 2009, in order to provide certified PACFLEET assets for deployment. There fore, there are urgent national security reasons for pro viding alternative arrangements under the CEQ regu lations.
The Navy must continue conducting sonar training exercises in portions of the SOCAL Operating Area in January 2008 through January 2009 in order to provide certified PACFLEET assets for deployment. CEQ un derstands that the next training exercise is scheduled to take place in the month of January 2008 and that failure to conduct this training exercise will have immediate ramifications for Navy deployments around the world. Therefore, the Navy has requested that CEQ take im mediate action on its proposal for alternative arrange ments for NEPA compliance.
The Navy has consulted with and obtained comments on its proposal for alternative arrangements from offi cial at NMFS. CEQ has also consulted with the NMFS for purposes of informing its respond to the Navy pro posal. Discussions between our staffs, your letter and supporting documents, and the classified declaration and briefings I have received, have clearly determined that the Navy cannot ensure the necessary training to certify strike groups for deployment under the terms of the injunctive orders. Based on the record supporting your request including the information provided during briefings and discussions to CEQ and others-in par ticular, the Biological Opinion and the NDE in which the Deputy Secretary of Defense determined that the na tional defense requires this training program and pro vided the NDE mitigation measures developed in con sultation with NMFS-CEQ has concluded that the Navy must be able to conduct the nine SOCAL COMP TUEX and JTFEX in a realistic and effective manner that includes the use of MFA sonar so that naval strike groups can be certified and deployed in a timeframe that does not provide sufficient time to complete an EIS. Therefore, emergency circumstances are present for the nine exercises and alternative arrangements for compliance with NEPA under CEQ regulation 40 C.F.R. § 1506.11 are warranted.
Your request provides CEQ with: (1) Navy's commit ment to apply measures for mitigating potential effects on marine mammals from the use of MFA sonar that are provided in the NDE and were developed in consulta tion with NMFS; (2) public participation procedures for the preparation of the SOCAL EIS; (3) measures for adaptive management; and (4) long-term research commitments. CEQ has had a number of meetings and conference calls with representatives of the Navy, as well as with representatives of the Department of Com merce, as CEQ considered and developed these alterna tive arrangements.
These alternative arrangements focus on the envi ronmental impact assessments particularly public par ticipation and research, prior to the completion of the SOCAL EIS, that will provide information for the on going EIS analysis and future development and analysis of MFA sonar training in the SOCAL Operating Area. These alternative arrangements are based on the pro posed training exercises scheduled between today and January 23, 2009 and the conditions present in the SO CAL Operating Area.
PUBLIC PARTICIPATION MEASURES:
The alternative arrangements include the following public participation measures that supplement the cur rent public information plan for the SOCAL EIS des cribed in your letter.
The Navy will provide notice of these alternative ar rangements and publish this Decision Memorandum in the Federal Register. In addition, Navy will publish notice of these alternative arrangements in the follow ing newspapers: (1) Los Angeles Times; (2) Sacramento Bee; (3) San Diego Union-Tribune; (4) North County Times (San Diego County); and (5) Daily Breeze (San Pedro, California).
Concurrent with the Federal Register notice, the Navy will include notices to the parties listed in Attach ment E to your request of January 10, 2008, as well as World Wildlife Fund, Nature Conservancy, National Wildlife Federation, Whale and Dolphin Conservation Society, Ocean Mammal Institute, Center for Whale Re search, Consortium for Oceanographic Research and Education, National Fisheries Institute, American Sportfishing Association, Coastal Conservation Asso ciation, International Fund for Animal Welfare, Ameri can Tunaboat Association, Pacific Fisheries Manage ment Council, Western Fish Boat Owners Association, Southern California Lobster and Trap Fisherman's As sociation, Southern California Trawler's Association, Morro Bay Commercial Fisherman Organization, South ern California Commercial Fishing Association, Califor nia Wetfish Producers Association, United Anglers of Southern California, Tuna Club of Santa Catalina Is land, International Game Fish Association, Long Beach Sportfishing, Recreational Fishing Alliance, United An glers of Southern California, United Pier & Shore An glers of California, Scripps Research Institute, Univer sity of California at Santa Cruz, and the Applied Physics Laboratory-University of Washington.
The notices will specifically seek input on the process for reviewing post-exercise assessments and include an offer to meet jointly with Navy representatives from the office of the Assistant Secretary of the Navy (Installa tions & Environment) and the office of the Chief of Na val Operations, and CEQ to discuss the alternative ar rangements.
CEQ will be provided copies of any notices made in accordance with the alternative arrangements and the notices will be posted on the website at http://www. socalrangecomplexeis.com.
The Navy will also provide CEQ notice of the post- exercise assessments which the Navy prepares for each exercise within 120 days of completion of each exercise (or 120 days after completion of an exercise which is reported as part of a group of exercises) to which these alternative arrangements apply. Further dissemination of the post-exercise assessments will be determined af ter considering input received in response to the Navy notice of alternative arrangements and the further dis semination of the post-exercise assessments will be in corporated into the alternative arrangements.
After the conclusion of the alternative arrangements, and no later than March 23, 2009, the Navy will provide a report to CEQ on the use of the alternative arrange ments that reviews the value and effectiveness of those arrangements. Notice of the report will be provided in the Federal Register, the five newspapers (Los Angeles Times; Sacramento Bee; San Diego Union-Tribune; North County Times (San Diego County); and Daily Breeze (San Pedro, California)) and on the website at http://www.socalrangecomplexeis.com.
RESEARCH MEASURES:
Efforts to obtain more information about the quan tity, distribution, migration, and reactions of marine mammals to MFA sonar is ongoing and will continue. Consequently, information being obtained will inform compliance with the substantive provisions of the MMPA and ESA, and the procedural requirements of CZMA and NEPA. For NEPA, this information will in form the ongoing SOCAL EIS process as well as future exercise planning in the SOCAL Operating Area and serve to provide the basis for integrated compliance with all environmental statutes.
The Navy is implementing the following research measures to provide for continual improvement in the quality of information available.
a. The Navy is taking measures to improve the in formation regarding marine mammal presence and den sity in the SOCAL Operating Area by coordinating with the NMFS to determine the need to identify areas within the SOCAL Operating Area for additional marine mammal surveys. If a need is identified, an implemen tation plan identifying the areas and providing a sched ule for the surveys will be developed no later than July 2008. The surveys will be designed to help determine where and when there are concentrations of marine mammals in the SOCAL Operating Area. The survey will occur over a two year period through July 2010.
b. The Navy is currently working on a program that will enhance its ability to use passive hydrophones on the SOAR Instrumented Range to detect and track mar ine mammals on those portions of the range where the passive hydrophones are in place. To ensure that these efforts remain focused, Navy will develop an implemen tation plan and schedule to expand the technical capabil ity of existing hydrophones to detect marine mammals by April 4, 2008. The implementation plan should pro vide for completion of prototype classifiers for Cuvier's and Blainesville's beaked whales and visual verification of other small odontocetes detected by passive hypdro phones by April 15, 2009.
c. As part of the SOCAL EIS, the Navy is evaluating a proposal to extend the range areas monitored by pas sive hydrophones. If Navy decides to extend the area covered by passive hydrophones as part of its ROD for the SOCAL Range Complex EIS, the Navy will deter mine a timetable for acquisition and installation of ad ditional hydrophones by March 30, 2009.
d. The Navy is evaluating current research regard ing infrared (IR) technology for use in collecting data regarding marine mammals, assessing the feasibility of acquiring and deploying additional IR capabilities dur ing major exercises or for conducting surveys, and de veloping a plan for acquiring and deploying IR in data collection efforts. The plan will be published no later than June 15, 2008.
MITIGATION MEASURES:
The Navy's proposed use of MFA sonar during the Commander THIRD Fleet's proposed nine training ex ercises (four COMPTUEX and five JTFEX), in the SOCAL Operating Area are based on the current know ledge of the SOCAL Operating Area and the 29 NDE mitigation measures, some of which are more fully des cribed below:
a. The Navy is ensuring that watchstanders and lookouts will include at a minimum: (1) three non-dedi cated watchstanders on all surface ships required to look out for marine mammals during all exercises; and (2) two lookouts on all surface ships required to look out for marine mammals during all exercises. Furthermore, all sightings of marine mammals by all watchstanders and all lookouts are to be reported directly to the Com bat Information Center (CIC) or via the appropriate watch stations for submission to the CIC, and the CIC will disseminate the sighting information to all plat forms in the area with a recommendation for appropri ate action (e.g., power down sonar; surface or subsur face vessels to avoid area or increase distance from mammals; aerial platforms to increase vigilance). Simi larly, all aerial platforms will monitor the area for ma rine mammals during their assigned missions and report marine mammal presence and confirmed sightings to Aircraft Control Unit for submission to the CIC, and the CIC will disseminate the sighting information to all platforms in the area to ensure they are aware of the presence of marine mammals and can take steps to in crease vigilance or execute mitigation measures applica ble to these exercises (e.g., power down sonar; surface or subsurface vessels to avoid area or increase distance from mammals; aerial platforms to increase vigilance).
b. The Navy is submitting after action reports to NMFS 120 days after the conclusion of any COMP TUEX and JTFEX that contains: (1) an assessment of the mitigation and monitoring measures and how to im prove them; and (2) the results of marine mammal moni toring, including all instances where marine mammals were observed and the levels of MFA sonar to which they were exposed, based on the NDE sonar mitigation measures and the requirements of the Biological Opin ion dated February 9, 2007.
c. Use of MFA sonar in the SOCAL Operating Area for COMPTUEX and JTFEX training is proposed to occur in W-291 and SOAR (Attachment A). The COMP TUEX and JTFEX training includes three components involving the use of MFA sonar: anti-submarine war fare exercises, submarine operations, and tracking operations. The training exercises in SOAR will occur at least 5 nm way from the western shoreline of San Clemente Island. Aside from San Clemente Island, there are no other islands located within W-291 or SOAR. The Channel Islands National Marine Sanctu ary is located entirely outside of W-291 and SOAR. The training area also excludes other islands off of Southern California. For example, Santa Catalina Island and Santa Barbara Island are located entirely outside W-291 and SOAR.
d. The Navy will use meters rather than yards to describe the safety zone set forth in NDE II mitigation measure 20, and the safety zone used in the SOCAL Operating Area will be 1000 meters. The Navy will pow er down 6dB if a marine mammal is detected within the safety zone. The Navy will power down an additional 4 dB at 500 meters and will shut off sonar transmissions at 200 meters. The remaining features of the safety zone described in NDE measure 20 will remain the same.
CONCLUSION:
The alternative arrangements as presented in this letter and any subsequent notification requirements de veloped as described above represent appropriate alter native arrangements for compliance with NEPA for the actions taken to respond to this emergency. Alternative arrangements are limited to those actions necessary to control the immediate impacts of the emergency by pro viding trained and certified Naval Strike Groups for deployment to combat areas and will remain in effect during the preparation and completion of the SOCAL EIS or until January 23, 2009, whichever is earlier. Ap plying these alternative arrangements to any other area or exercise would not be appropriate absent an analysis tailored to such other area and exercise.
We are available to review these alternative arrange ments in the event there are any concerns, questions or requests for clarification from the Navy, other agencies, and the public. Please do not hesitate to contact me, Ted Boling, CEQ General Counsel, or Horst Greczmiel, CEQ Associate Director for NEPA, regarding the implementation of these arrangements.
Yours Sincerely,
/s/ JAMES L. CONNAUGHTON
JAMES L. CONNAUGHTON
Attachments
A: Chart of the SOCAL Operating Area identifying ar eas MFA sonar can be used under the terms of the NDE, Biological Opinion and the alternative arrange ments.
B: USS Boxer ESG-5, Composite Training Unit Exer cise (C2X 06-03), July 2006 and Joint Task Force Exer cise 06-04 (JTFEX 06-04) 10-17 Aug 2006, After Action Report.
C: USS Stennis CSG, Composite Training Unit Exercise 06-04 (C2X 06-04), 20 Sept-12 Oct 2006, After Action Report.
D: USS Stennis CSG, Joint Task Force Exercise 07-01 (JTFEX 07-01), 07-16 Nov 2006, After Action Report.
E: USS Nimitz CSG, Composite Training Unit Exercise 07-01 (CSX 07-01), 19 Nov-19 Dec 2006.
F: Department of the Navy Southern California Com posite Training Unit Exercise / Joint Task Force Exer cise Combined After Action Report, February-March 2007, Final, 28 June 2007.
G: Department of the Navy Southern California Com posite Training Unit Exercise 07-7, After Action Report, September 2007, Preliminary Draft CPF Submittal, 04 January 2008 [USS Tarawa Expeditionary Strike Group].
H: United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service Memorandum, subject: Ef fects of Navy training exercises on marine mammals in and adjacent to the Navy's Southern California Operat ing Area, dated January 9, 2008.
ATTACHMENT H
[Seal Omitted]
UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
NATIONAL MARINE FISHERIES SERVICE
Silver Spring, MD 20910
[Dated: Jan. 9, 2008]
MEMORANDUM FOR: Conrad C. Lautenbacher, Jr.
Vice Admiral U.S. Navy (Ret.)
Under Secretary of Commerce for Oceans and Atmosphere
THROUGH: /s/ JOHN OLIVER
JOHN OLIVER
Acting Assistant Admini- strator for Fisheries
FROM: /s/ JAMES H. LECKY JAMES H. LECKY
Director, Office of Protected
Resources
SUBJECT: Effects of Navy training exercises on marine mam mals in and adjacent to the Navy's Southern California Operating Area
We have been asked to review the environmental effects of Navy's request for a Presidential exemption under the Coastal Zone Management Act for Navy's use of mid-frequency active (MFA) sonar during the remaining Composite Training Unit (COMPTUEX) and Joint Task Force Exercises (JTFEX) scheduled to occur through January 2009 off Southern California. These exercises include 29 conditions, developed in consultation with the National Marine Fisheries Service (NMFS), and adopted as mitigation measures for the purposes of a National Defense Exemption (NDE) under the Marine Mammal Protection Act (MMPA) invoked by the De partment of Defense in January 2007.43
Generally, we agree with Navy's findings regarding an ticipated effects on marine mammal populations likely to be exposed to these exercises. In arriving at this con clusion, we reviewed our Biological Opinion on the exer cises (issued February 9, 2007), the 29 conditions adopted in January 2007 as part of the NDE, and the California Marine Mammal Stranding Network data base.
Marine Mammals Listed as Endangered or Threatened
During 2006 and early 2007, NMFS and Navy consulted pursuant to section 7 of the Endangered Species Act to assess the effects of these anticipated training exercises on marine mammals listed as endangered or threatened. In consulting on the action, NMFS considered Navy's August 2006 and February 2007 draft Environmental Assessments (final February 2007 Environmental As sessment available at http://www.navydocuments.com) for the training activities and included the set of 29 con ditions adopted in January 2007 for the NDE as part of the action.
On February 9, 2007, NMFS issued its biological opin ion in which it concluded that Navy's proposed COM PTUEX and JTFEX exercises in waters off the State of California from February 2007 through January 2009 are not likely to jeopardize the continued existence of the threatened and endangered species under NMFS jurisdiction. Species reviewed in the biological opinion were certain baleen whales (blue, fin, sei, and humpback whales), sperm whales, and Guadalupe fur seals.
With respect to baleen whales, their hearing is sensitive in low frequency ranges. While they are likely able to hear MFA sonar, they are not likely to be injured by it. Therefore, while individuals within the baleen whale populations may experience disturbance sufficient to cause temporary movement away from exercise areas, these temporary movements are not expected to result in adverse effects. Information on trends in abundance indicates that baleen whale populations off California are increasing despite the level of human activity in coastal waters of California. While information on trends is not dispositive, it does demonstrate that the history of coastal development, including military train ing using MFA sonar, has not precluded recovery of these stocks over the last several decades. NMFS' opin ion is that the proposed COMPTUEX and JTFEX ac tions are not expected to appreciably reduce the likeli hood for any of the listed baleen whales of surviving and recovering in the wild.
Sperm whale hearing in the range used by MFA sonar is more sensitive than for baleen whales. Sperm whales are deep diving species that forage well below the photic zone and are dependent on echolocation for finding prey. Available information on the effects of MFA so nar on sperm whales is reviewed in detail in the biologi cal opinion. This information suggests that the behav ioral responses of sperm whales to anthropogenic sounds are highly variable, but do not appear to result in the death or injury of individual whales or result in reduction in the fitness of individuals involved. In some circumstances, sperm whales respond by swimming away from the sound source, ceasing calling, and chang ing dive patterns. In other circumstances, no apparent response was noted. As with other marine mammals, behavioral responses to sound appear to be context spe cific (i.e., is the animal motivated to be in an area and willing to tolerate a sound, is it experienced and knows the sound is not threatening, or is the animal naive and cautiously avoids unfamiliar sound sources). Based on the literature reviewed in the biological opinion, the short duration of any particular exercise, limited geo graphic scope of each exercise, and employment of miti gation measures, NMFS concluded that the proposed COMPTUEX and JTFEX actions are not likely to ad versely affect individual sperm whales in ways or to a degree that would reduce their fitness nor would we expect a reduction in viability of the populations those individual whales represent. Consequently, NMFS' opinion is that the proposed COMPTUEX and JTFEX actions are not expected to appreciably reduce the sperm whales' likelihood of surviving and recovering in the wild.
There is little information on the response of pinnipeds, such as the Guadalupe fur seal, to sonar. Given the rar ity of Guadalupe fur seals in most of the Southern Cali fornia Operations Area and the results from Navy's modeling exercise using a more common pinniped spe cies, the likelihood that Guadalupe fur seals may be ex posed to the MFA sonar employed during COMPTUEX and JTFEX exercises is low. As a result, we conclude that the proposed COMPTUEX and JTFEX exercises are not likely to adversely affect individual Guadalupe fur seals in ways or to a degree that would reduce their fitness, and therefore are unlikely to affect the species' likelihood of surviving and recovering in the wild.
Marine Mammals Not Listed as Endangered or Threat ened
While NMFS' biological opinion pursuant to section 7 of the Endangered Species Act evaluated the impacts of the Navy's training exercises on listed marine mam mals, the biological opinion did not address the impacts on unlisted marine mammals. (Unlisted marine mam mals include the deep-diving toothed whales, such as beaked whales, that appear to be particularly suscepti ble to injury from MFA sonar). However, NMFS was consulted on the development of the 29 conditions to mitigate impacts on listed and unlisted marine mammals before the Department of Defense invoked the NDE in January 2007. As noted above, these 29 NDE conditions will be part of the COMPTUEX and JTFEX exercises.
Among other things, the 29 conditions provide that watch standers and other key participants in the exer cises off Southern California are trained in the identifi cation of marine mammals. This ensures mammals in the vicinity of the exercise are likely to be observed so that various safety measures may be employed. Passive acoustic capabilities will be employed to listen for ma rine mammals in the training area and at night, lookouts will employ night vision techniques to look for marine mammals in the safety zones. As part of the letters of instructions for each operation. communication mea sures are implemented to ensure timely communication among all vessels participating in the exercise of the presence of marine mammals and a timely and appropri ate response to implement safety measures. These safety measures include safety zones, power down zones, and shut down zones to protect marine mammals from exposure to injurious levels of sound.
Some of the conditions are also being employed to mini mize the likelihood of circumstances occurring like those in which MFA sonar has been implicated as a contribut ing factor in strandings of beaked whales, such as multi ple vessels transmitting sonar at the same time in areas characterized by steep bathymetry adjacent to deep water and confined geography with limited escape routes for whales trying to avoid sonar sources. In Southern California, Navy is proposing to conduct most of its sonar activities well off shore where it will not en counter these circumstances. The Navy will avoid areas in which an animal's ability to avoid sonar sources would be limited. These mitigation measures will minimize the likelihood of beaked whales being caught in circum stances that characterize known strandings of beaked whales.
While NMFS and Navy continue to review after-action reports and evaluate the effectiveness of various mitiga tion measures, and NMFS expects that mitigation mea sures will improve or additional measures may be added as future actions are considered for authorization after the NDE expires, NMFS believes the mitigation mea sures being employed for the Southern California exer cises will reduce the risk of adverse effects to the ma rine mammals in the area.
Information from strandings
We explored the stranding network database for evi dence that historical MFA sonar activities may have been implicated in mass stranding events. Marine mam mal strandings in California are common events, but the vast majority is of seals and sea lions. The causes of seal and sea lion strandings are predominately associ ated with disease, exposure to toxins from harmful algal blooms, and fishery interactions. Strandings also ap pear to spike during El Niño events when forage species are less abundant. Again, these strandings are predom inately pinnipeds. While beaked whales have stranded in Southern California, they are relatively rare events. Between 1982 and 2007, thirteen beaked whales repre senting four different species (Blainville's, Hubb's, Cuvier's, and Stejneger's beaked whales) stranded from San Diego to Santa Barbara County (California Marine Mammal Stranding Network Database 2006). As with most strandings, the cause of mortality is not always apparent, but for six of these the cause was determina ble. Three were disease-related, two were from entan glement in fishing gear, and one was from a boat colli sion. One other animal exhibited a lethal injury, missing tail flukes, which could be attributable to either a vessel interaction or a fishery interaction. The cause of mor tality for the remainder was not determinable; however, they stranded individually (as opposed to mass strand ings associated with MFA sonar exercises), and they were not coincident with MFA sonar activity.
As noted above, deep diving toothed whales, in particu lar several species of beaked whales (none of which is listed under the Endangered Species Act), appear to be particularly susceptible to injury, as documented by several mass stranding events in locations other than California in the last several years. The events shared several common factors; among these were steep bathy metry adjacent to islands or other shallow areas, con fined geography (e.g. narrow canyons or box canyons), multiple MFA sonar vessels active at the same time, and a strong surface duct (a hydrological condition condu cive to sound transmission). However, the mechanism by which MFA sonar appears to be injurious to beaked whales is poorly understood. There are several compet ing hypotheses but little definitive information is avail able. While Navy, NMFS, and several other institutions initiated a cooperative investigation of this issue in 2007, an understanding of these whales' behavioral responses to MFA sonar is likely years away. In the meantime, monitoring each event, identifying common contributing factors, and implementing mitigation measures to avoid those circumstances is a reasonable way to minimize risk to this group of marine mammals. In addition, Navy will support stranding network response to any unusual marine mammals stranding events that occur during or shortly after MFA sonar exercises to facilitate collection of information that might further inform our understanding of the effects of MFA sonar on marine mammals.
Conclusion
For the reasons stated above, NMFS anticipates that the exercises in question are likely to elicit temporary behavioral responses from marine mammals in and adja cent to exercise areas, and that these responses will vary from alerting responses to the sounds, modifica tions of migration courses to avoid close approaches to sound sources, temporary movement away from sound sources, or temporary cessation of feeding or breeding activities. While there is some potential for injury, NMFS thinks the mitigation measures employed during the exercises will minimize that risk. Therefore, NMFS does not expect the COMPTUEX and JTFEX exercises over the next 13 months to result in adverse population level effects for any of these marine mammal popula tions.
Pursuant to the NDE, NMFS is continuing to work, as a cooperating agency, with Navy to conduct a thorough environmental review of the effects of these activities in an Environmental Impact Statement, including evalua tion of the implementation and the effectiveness of the mitigation measures. NMFS anticipates issuing regula tions and a letter of authorization authorizing take of marine mammals incidental to training exercises in Southern California by December 2008. As new infor mation becomes available, including analyses of mitiga tion measures in after-action reports, NMFS and Navy may modify the mitigation measures currently being proposed by Navy in the expected December 2008 regu lations and letter of authorization.
APPENDIX M
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
No. 8:07-cv-00335-FMC (FMOx)
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., DEFENDANTS
Hearing Date: TBD
Time: TBD
Hon. Florence-Marie Cooper
U.S. District Judge
DECLARATION OF REAR ADMIRAL JOHN M. BIRD
IN SUPPORT OF DEFENDANTS' MEMORANDUM REGARDING A TAILORED PRELIMINARY INJUNCTION
I, Rear Admiral John M. Bird, United States Navy, do hereby declare as follows:
I. INTRODUCTION AND QUALIFICATIONS.
1. I graduated from the United States Naval Academy in 1977 with a Bachelor of Science degree in Mechanical Engineering. Subsequently, I earned a Masters of Sci ence degree in Engineering Management from Catholic University of America. I have also completed the Mas sachusetts Institute of Technology Seminar XXI in For eign Affairs, International Relations and National Se curity, an educational program for senior military of ficers, government officials, and business executives in the national security policy community.
2. Upon graduating from the U.S. Naval Academy, I began a career as a submarine officer in the U.S. Navy. Among my operational assignments, I have served on both fast attack and ballistic missile submarines in both the Pacific and Atlantic Fleets. Some of my operational assignments have included service on: USS Seahorse (SSN 669), an attack submarine; USS Simon Bolivar (SSBN 641), a fleet ballistic missile submarine; USS Sea Devil (SSN 664), an attack submarine; and USS Tunny (SSN 682), also an attack submarine. My most recent submarine assignment was on the USS Scranton (SSN756), an attack submarine, where I served as the Commanding Officer and was awarded the Naval Sub marine League's Jack Darby Award for Inspirational Leadership and Excellence in Command. While I was Commanding Officer, the USS Scranton also earned the Submarine Squadron Six Battle Efficiency "E" award 1 for two consecutive years in 1994 and 1995. From Aug ust 1999 to April 2001, I commanded Submarine Squad ron EIGHT (SUBRON EIGHT) which included eight fast attack submarines stationed in Norfolk, Virginia. SUBRON EIGHT exercises operational control over its fast attack submarines, a function which encompasses responsibility for tactical and operational readiness for war, inspection and monitoring, nuclear and radiological safety, and development and control of submarine op erating schedules.
3. Staff assignments I have held include serving as Special Assistant (Legislative Affairs) to the Chief of Naval Personnel; Principal Assistant in the Office of Deputy Chief of Naval Operations for Undersea War fare (Readiness and Tactics); Joint Chiefs of Staff Division Chief for Central, South and Southeast Asia; Assistant Deputy Director for Political-Military Affairs Asia, also on the Joint Chiefs of Staff; and Director Op erations and Plans, Logistics and Engineering, United States Joint Forces Command.
4. From September 2005 to December 2006, I served as the thirty-ninth Commander of Submarine Group SEVEN (SUBGRU SEVEN), where I served as both Commander, Task Force SEVEN FOUR2 and Com- mander Task Force FIVE FOUR3 in Yokosuka. In that role, SUBGRU SEVEN was responsible for supporting operations in the Western Pacific and assumed admin istrative control over deployed submarines and tenders, reporting to Commander, Submarine Forces Pacific.
5. In December 2006, I reported to U.S. Pacific Fleet, Pearl Harbor, Hawaii to assume duties as Deputy Com mander and Chief of Staff and continue to hold that res ponsibility.
6. I have an intimate understanding and knowledge of Anti-Submarine Warfare (ASW) and tactics. Through my past and present assignments, I am very familiar with the use of Mid-Frequency Active Sonar (MFAS) and the harm that will result to national security if the Navy is unable to conduct required ASW training during the Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Exercises (JTFEX).4 I am also very familiar with the history and current status of the Navy's extensive mitigation measures put in place so that the Navy can conduct its required training while protecting the natural resources. I have gained this un derstanding through my extensive at-sea experience on attack and missile submarines, my operational assign ments directly relating to ASW, and my staff assign ments that were primarily focused on undersea warfare, joint (among services) warfighting capabilities, and for eign political-military issues.
7. The Navy has implemented a variety of marine mammal mitigation measures over the past several years. This declaration describes the genesis and cur rent status of those mitigation measures, and why they are both effective in protecting marine mammals and not so restrictive as to prevent effective Navy training. This declaration traces the history of marine mammal pro tection measures as implemented by the Navy from be fore RIMPAC 2006 to the current MMPA National De fense Exemption (NDE II) under which the Navy now operates. The RIMPAC 2006 exercise was the first time the National Marine Fisheries Service (NMFS) had ever issued an Incidental Harassment Authorization (IHA) under the Marine Mammal Protection Act (MMPA) for the use of MFAS for Navy ASW exercises, and the Navy has learned much since then. This declaration will dis cuss previously employed mitigation measures that have since been modified or eliminated after careful evalu ation of both their effectiveness as a marine mammal mitigation measure, and compatibility with training requirements. This declaration will explain how NDE II, the current measures, struck a reasoned balance be tween environmental protection, military readiness ac tivities, and ultimately National Security. The Deputy Assistant Secretary of the Navy for Environment has stated that, "sonar operations and stewardship of the marine environment are not mutually exclusive goals. The Navy must, and will continue, to operate sonar in a manner that is supportive of our mission to defend the United States and protective of the marine environ ment."5 In support of this policy, the NDE II delineated 29 Mid-Frequency Active Sonar (MFAS) mitigation measures ( 5 personnel training measures, 7 lookout and watchstander responsibility measures, 14 operating pro cedures, and 3 coordination and reporting procedures) to be used by the Navy during major training exercises. These 29 MFAS mitigation measures were based on analysis and empirical sonar data collected at sea and improved upon measures used since 2004.
8. The Navy is cognizant of the Court's concern over measures employed during RIMPAC 2006, but not car ried forward in NDE II. The Navy, therefore, will em ploy additional measures during the SOCAL exercises that are carefully tailored to provide further protection to marine mammals, while not unduly degrading the quality of MFAS training. This declaration will, finally, address those additional measures in section IX.
II. SONAR HISTORY
9. SONAR is an acronym for Sound, Navigation and Ranging. It is a method or device for "seeing" under water to detect and locate objects by either intercepting the acoustic waves of an object's natural-borne sound (passive sonar) or by emitting pulses of sound and recei ving the reflecting acoustic waves that bounce off an ob ject as echoes (active sonar). This detection method is analogous to the echo location techniques used by bats, whales and dolphins.
10. Various types of active and passive SONAR are used by the U.S. Navy to identify and track submarines, determine water depth, locate mines, and provide for vessel safety. Passive sonar "listens" for sound waves by using underwater microphones called hydrophones that receive, amplify and process underwater sounds. No sound is introduced into the water by the ship or submarine when using passive sonar. Since passive sonar does not put sound in the water it does not reveal the location of the listening vessel. Passive sonar can indicate the presence, character and movement of sub marines. The major disadvantages of passive sonar are that an initial passive detection only provides a bearing (direction) to the object, not an accurate range distance and it must rely upon the target emitting sufficient sound energy at frequencies being monitored at or above decibel levels the sonar system can detect. Active sonar gives both bearing and range and can locate tar gets emitting levels of energy below those of the sur rounding marine environment. Although the Navy is researching improvements in passive sonar, passive sonar does not provide the full capabilities of active so nar systems. For example, passive sonar detection ran ges and area coverage to detect a threat submarine are limited compared with active detection ranges and area coverage as illustrated in the graphic below. The sur face ship with sonar is in the center of the circle.
11. The red in the circles in the chart on the left (or small line segments if the color is difficult to discern) represents passive detection probabilities against a submerged diesel submarine. The magenta in the circles in the chart on the right (or large rectangle ar eas) represents active detection probabilities against a submerged diesel-electric submarine. The magenta ar eas (or rectangular segments if color is not visible within the circles) represent those areas where the MFAS ship has a greater than 50% probability of detecting a submarine. Note that in the right graphic above, MFAS at normal operating power provides a nearly unbroken circle of detection opportunity against the submarine, representing a greatly reduced risk of submarine attack on the surface vessel.
12. Active SONAR systems generally fall into three categories: (1) low frequency (between 0.1 kHz and 1.0 kHz) (LFA); (2) mid-frequency (between 1.0 kHz and 10.0 kHz) (MFA); and (3) high frequency (greater than 10.0 kHz) (HF). Active sonar emits pulses of sound that travel through the water, reflect off objects and return to the receiver on the ship. By knowing the speed of sound in water and the time for the sound wave to travel to the object and back, active sonar systems can quickly calculate distance between the ship and underwater objects.
13. The first SONAR was invented during World War I by British, American and French scientists to locate submarines and icebergs. The U.S. Navy began using SONAR after World War I6 and by the start of World War II, every naval vessel engaged in antisubmarine activity was equipped with military applications of active and passive sonar systems (Principles of Underwater Sound, 3rd ed., Robert Urick, 1983). Since the mid- 1950s, remarkable advances have been made in the sci entific understanding of underwater acoustics and mili tary application of sonar systems to detecting and track ing quiet diesel submarines. Most of the advances made in sonar technology occurred during the Cold War and continue to this day to counter the growing threat of elu sive submarines used by various countries.
14. The development of the current design of Navy MFAS recognized the need for a long-range submarine detection system to counter the Soviet nuclear sub marine threat to Navy aircraft carrier Battle Groups (now called "Strike Groups"). The SQS-26 was the ini tial modern hull mounted SONAR system installed on the Navy's surface vessels starting in the early 1960s after several years of development. After careful re search of ocean propagation paths for sound and fre quency, power levels for the SQS-26 system were chosen to provide long (>10 miles) active detection ranges. Modern U.S. Navy MFAS sonar systems operate at the same power levels as the SQS-26.
15. Navy analysis of the diesel-electric submarine threat has shown that use of passive SONAR alone is not adequate. Objective assessment data from the Navy's "Ship Anti-Submarine Warfare Readiness Effectiveness Measuring" (SHAREM) program exercises conducted between 1999 and 2006 showed that MFAS system ac tive detection ranges exceeded passive detection ranges in all cases, particularly at ranges at which threat sub marines would be able to use their weapons. In other words, shutting sonar off and just listening for threat submarines was far less effective, and places the surviv ability of a Strike Group at great risk. The following fig ure illustrates active versus passive detection ranges when multiple ships are operating in a Strike Group as they do when they are on a deployment. The "escort" ships are MFAS ships that are protecting the aircraft carrier, located at the center of the Strike Group. (gra phic is on next page)
This depiction is a notional representation of how de tection range is used by the Navy without revealing spe cific Navy tactics or system capabilities, but accurately depicts the limitations inherent in relying upon passive SONAR systems. The goal is to detect the submarine prior to it closing to within its weapons range of the Strike Group ships and aircraft carrier.
16. Many ASW experiments and exercises have demon strated that this improved capability for long range de tection of adversary submarines before they are able to conduct an attack is essential to U.S. Navy ship surviv ability. Today, ASW is the Pacific Fleet's #1 war-fight ing priority. Submarines are operated by numerous navies, including potential adversaries in the Asia-Pa cific and Middle East areas (See David Yoshihara's un classified and classified declarations). U. S. Navy Strike Groups are continuously deployed to these high threat areas. Today's modern, quiet, diesel-electric submar ines, operated by navies across the world, pose the pri mary threat to the U.S. Navy's ability to perform a num ber of critically necessary missions essential to both peacetime and wartime operations. These missions in clude being able to access and operate in waters near shore, control strategic maritime transit routes and in ternational straits, and protect sea lines of communi cations7 supporting international commerce. Diesel- electric submarines equipped with advanced propulsion systems and quieter exterior coatings can covertly operate in coastal and open ocean areas, blocking U.S. Navy access to combat zones and increasing U.S. ves sels' vulnerability to torpedo and anti-ship missile at tacks. Detecting, identifying, locating, tracking, and if necessary, holding8 a diesel-electric submarine at risk is vitally important to the U.S. Navy's ability to conduct operations, accomplish its missions and ultimately pre vail in conflict. In preparing for these missions the COMPTUEX and JTFEX are the only opportunities for the thousands of individuals in a strike group to train in a coordinated manner in a realistic environment prior to deployment. If a strike group does not gain proficiency in MFA sonar, and cannot be certified as combat ready, this carries negative national security implications.
III. ASW IN SOUTHERN CALIFORNIA (SOCAL) OFF SHORE COMPLEX.
17. In order to be successful at these missions and ag ainst the threat of diesel-electric submarines, the Navy has, for more than 40 years, routinely conducted ASW training and Strike Group certification in the waters off the coast of southern California. During this same time period, our understanding of marine mammal neuro physiology and sensory physiology, particularly acous tic, has been markedly enhanced through research con ducted in and published throughout the national and in ternational scientific communities. Integrating tactical military requirements with best available scientific un derstanding of marine mammal physiology and ecology, the U.S. Navy initiated the development and implemen tation of standard operating protocols to reduce and av oid effects of ASW activities on marine mammals. Coup led with extensive marine mammal awareness training, regulatory reporting and coordination requirements, and investment in scientific, peer-reviewed data, the Na vy has safely operated MFAS systems in southern Cali fornia in conjunction with major range events for dec ades. A thorough understanding of tactical sonar acous tic propagation characteristics, marine mammal physiol ogy and population ecology, and oceanographic vagaries in the Southern California Bight9 has been the bench mark of the U.S. Navy's effective mitigation program. Detecting marine mammals in proximity to ASW oper ations is the key factor for avoiding and/or minimizing effects. As has been documented in recent After Action Reports in Southern California, the Fleet ASW commu nity consistently applies mitigation measures for marine mammals sighted during ASW training. Implemen tation of blanket geographic, seasonal, or restrictions on night time ASW training in Southern California as miti gation measures would dramatically reduce the realism of ASW training with severe national security conse quences and would afford speculative benefits to marine mammal populations in Southern California waters.
18. The earlier SQS-26 MFAS system, referenced ab ove, used in southern California waters during training beginning in the 1960s, and the current SQS-53 hull- mounted MFAS systems being used today transmit at the same power levels (with nominal sound intensity of 235 dB 1-yard from the source) and frequencies (3.5 Khz). Navy data going back to 1992 shows that the number of yearly exercises in the last 15 years and am ount of MFAS use in SOCAL waters was greater in the past than it is now, showing a slight reduction trend. It was likely even greater prior to 1992 because the Navy had more ships homeported in San Diego and more ships that carried MFAS, all of which required training and certification. Another hull mounted MFAS system the Navy uses is the SQS-56 on the Oliver Hazard Perry class Frigates since the late 1970s but it was considered less capable than the SQS-53 because of its power and frequency levels. Accordingly, the new Arleigh Burke class of Destroyers uses the SQS-53. In the 1980s, as documented in reconstruction and analysis reports from the Navy's SHAREM program, there were multiple ships using SQS-26, SQS-53, SQS-56 SONAR systems operating at the same power levels and sound intensity levels that our ships operate at today in Southern California waters and no reported cases of harmful ef fects to marine mammals attributed to MFAS use have occurred.
19. Continued use of these MFAS systems during Strike Group training is vital because modern diesel- electric submarines are designed to suppress emitted noise levels specifically to counter and defeat the best available passive sonar technology. Since passive SO NAR involves listening for sounds emitted by a poten tially hostile submarine in order to detect, localize and track it, because submarines have become quieter through the use of improved technology, and because submarines have learned to "hide" in the naturally oc curring noise levels of the shallow waters of coastal en vironments, the usefulness of passive SONAR systems has greatly diminished. Until it approaches to a very close range, a diesel-electric submarine operating on battery power is nearly undetectable to U.S. and allied naval forces using passive SONAR alone and the Navy has not discovered an adequate replacement for MFAS. Due to increased weapons' ranges of modern submar ines, they may not have to place themselves within the limits of passive sonar's ability to detect them. The Na vy continues to seek a more effective method to find sub marines because using active sonar reveals the trans mitting vessel's position.
20. The U.S. Navy has homeported a significant per centage of its ships in Southern California (and until the late 1990s, Central California) since the fleet was devel oped after WWI. Naval ships have trained in Southern California dating back to the 1930s. It is important to note that during the 40 plus years of MFAS operations within Southern California waters at relatively consis tent intensity levels, use of MFAS during training was not mitigated until 2004 and did not result in any ob served or documented cases of marine mammal stran dings, harassments, or deaths linked to MFAS use. Ad ditionally, there have been no observed behavioral res ponses attributed to MFAS reported by any third par ties or regulatory agencies, including the NMFS. In short, in the past 40 years, there is no evidence of stran dings due to behavioral responses, harassments or deaths caused by MFAS.
21. The Navy is aware that various marine mammal species have migrated along the California coast for decades in areas where it routinely trains with MFAS. NMFS and the scientific community acknowledge that the population of eastern North Pacific gray whales has grown since the cessation of West Coast whaling and that migration routes for gray whales have remained virtually unchanged from historic patterns.10 This sug gests that there have been no adverse behavioral im pacts from Navy's use of MFAS in Southern California waters. The following graphic shows recent surveying of gray whales.11
Of note is that the thick cluster of aerial sightings in the lower right is surrounding San Clemente Island, whose nearby waters contain an instrumented undersea Navy ASW range. After four decades of operations, the whales continue to traverse waters frequently used for Navy sonar exercises.
IV. MID-FREQUENCY SONAR TRAINING IN ALL EN VIRONMENTAL CONDITIONS IS VITAL
22. One of the Navy's key operational objectives is to hold adversary submarines at risk 12 by maintaining the ability to destroy them, if and when required, at a time and place of the Navy's choosing. Fundamental to this objective is knowing where they are operating at all times and understanding their intentions and capabil ities through their actions.13 The time period leading up to actual hostilities is the most difficult and strenuous for Strike Groups during training because they must constantly ensure they reduce the risk to themselves should the submarine engage in an unexpected hostile act. They counter this challenge by using MFAS to de tect, identify and classify a submarine and its actions which provide insight into its intentions. MFAS pro vides the greatest detection ranges and areas over which submarines can be detected. The Strike Group must also maintain contact and ensure that the movements of the Strike Group ships do not place them in a position where the submarine can harm them. But, as modern diesel submarines of potential adversaries have become exceedingly quiet and more difficult to detect by passive means, realistic and repetitive ASW training with active SONAR is necessary for our forces to be confident and knowledgeable in the Navy's plans, tactics, and proced ures to perform and survive in situations leading up to hostilities as well as combat.
23. MFAS training is required year round in all envi ronments, to include during night and low visibility con ditions, and in southern California offshore waters which realistically portray the bathymetric features where die sel threats can hide and present significant detection challenges. ASW occurs over many hours or days. Un like an aerial dogfight, over in minutes and even sec onds, ASW is a cat and mouse game that requires large teams of personnel working in shifts around the clock to work through an ASW scenario. Also, MFAS training at night is vital because environmental differences between daytime and nighttime affect the detection capabilities of active SONAR. The ambient noise levels are higher at night because many species use the nighttime period for foraging and movement. Temperature layers, which affect sound propagation, move up and down in the wa ter column from day to night. Consequently, personnel must train during all hours of the day to ensure they identify and respond to changing environmental condi tions. An ASW team trained solely during the day can not be sent on deployment and then be expected to fight at night because they would not identify and respond to the changing conditions. On-the-job training in combat is the worst possible way of training personnel and plac es both the Strike Group and the success of the military mission at significant risk.
24. Maneuvering a vessel at night and during restric ted visibility is not a "simple" activity. In the Interna tional Navigation Rules of the Road, periods of fog, mist, falling snow, heavy rainstorm, sandstorms, or any simi lar events are referred to as "restricted visibility."14 In restricted visibility, all mariners, including Navy vessel crews, are required to maintain proper look-out by sight and hearing as well as "by all available means appro priate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision."15 Therefore, Navy vessels are requi red to use all means available in restricted visibility,
including SONAR and positioning of additional lookouts for heightened vigilance to avoid collision. Navy vessels use radar and night vision goggles (as already noted in current National Defense Exemption (NDE II) miti gation) to avoid any object, be it a marine mammal, a periscope of an adversary submarine, trash, debris, or another surface vessel. Prohibiting or limiting vessels from using MFAS during periods of restricted visibility therefore violates international navigational rules, in creases navigational risk, and jeopardizes the safety of the vessel and crew.16
V. MID-FREQUENCY ACTIVE SONAR TRAINING AT DIFFERENT POWER LEVELS.
25. Active SONAR detection ranges decrease as power is reduced and make the Strike Group more vulnerable to attack. This is illustrated in the figure on the follow ing page:
If the Navy maintains the same formation, it cannot assess its real vulnerability and capability gaps during major exercises. The submarine can make an attack on the aircraft carrier without being detected by the car rier's protective escorts.
26. Reducing transmit power levels of SONAR, as suggested by the above graphic, compromises training by removing the opportunity for a SONAR operator to detect, track and hold an enemy submarine. When a submarine is in the path of a transmitting SONAR beam, the intensity of the reflected sound measured some distance away will depend directly upon the intensity of the sound striking the submarine. There fore, the higher the decibel level of the SONAR system of the transmitting vessel, the stronger the returned echo from the submarine and the higher the likelihood that a SONAR operator will be able to detect a return on a SONAR system display. Training Sailors to use reduced MFAS power levels not only reduces the oppor tunity to detect, track and hold objects, but it also ex poses them to unrealistically lower levels of mutual in terference1 caused by multiple SONAR systems oper ating together by the ships within the Strike Group. As a consequence of the above illustrated situation, the submarine successful attack rate against the aircraft carrier will be artificially high, but by an unknowable amount. There will be less detection and classification data to assess Fleet readiness. This will result in not knowing how proficient the Navy's ASW forces really are and what skills require improvement. Because submarines would be much more difficult to detect in training, another effect of training with reduced power is that Navy surface ships would have less opportunities to practice attacking submarines. Over time, operating under reduced power would condition the Sailors to expect conditions that they would not experience in a real world combat situation and would not allow them to train the way they would be expected to fight, resulting in an increased risk to the Strike Group's ability to survive.
27. Alternatively, trying to alleviate the risk identi fied in the previous figure by directing the ships to move closer together would only hinder rather than help the situation. The figure on the following page identifies the heightened risk in doing this:
Even collapsing the formation to compensate for oper ating under reduced power will not allow protection of the aircraft carrier. The destroyers will be attacked pri or to detecting the submarine. The submarine will then be free to destroy the aircraft carrier.
28. This illustration does not fully reflect the actual conditions in a warfare environment because submarines would not be the only threat. Strike Groups must also be positioned and trained to defend against possible threats on the surface and air. For example, collapsing the formation to compensate for reduced sonar operat ing levels may not allow for adequate anti-air defense by the escorts against enemy aircraft. It may not also allow the Strike Group to counter weapons released from oth er naval vessels attacking the Strike Group. But, even if the Navy could collapse the formation, it does not help in this case because the submarines' weapons range ex ceeds the range at which it can be detected using active SONAR by the escort ships. So with reduced SONAR power, the submarine is free to shoot the escorts first, and then the aircraft carrier. The "reach" of the sub marine's weapon is greater than the "reach" of the es corts' SONAR, placing the survivability of the Strike Group at risk and once again training the Sailors in a different manner than they would be expected to con duct combat operations.
29. The graphic below contains range rings and rec tangular shaped sectors that illustrate the difficulty in detecting a modern diesel-electric submarine at a given range when sonar power levels are reduced. The sur face ship with sonar is in the center of the circles.
If the Navy maintains the same formation, it cannot assess its real vulnerability and capability gaps during major exercises. The submarine can make an attack on the aircraft carrier without being detected by the car rier's protective escorts. 26. Reducing transmit power levels of SONAR, as suggested by the above graphic, compromises training by removing the opportunity for a SONAR operator to detect, track and hold an enemy submarine. When a submarine is in the path of a transmitting SONAR beam, the intensity of the reflected sound measured some distance away will depend directly upon the intensity of the sound striking the submarine. There fore, the higher the decibel level of the SONAR system of the transmitting vessel, the stronger the returned echo from the submarine and the higher the likelihood that a SONAR operator will be able to detect a return on a SONAR system display. Training Sailors to use reduced MFAS power levels not only reduces the oppor tunity to detect, track and hold objects, but it also ex poses them to unrealistically lower levels of mutual in terference1 caused by multiple SONAR systems oper ating together by the ships within the Strike Group. As a consequence of the above illustrated situation, the submarine successful attack rate against the aircraft carrier will be artificially high, but by an unknowable amount. There will be less detection and classification data to assess Fleet readiness. This will result in not knowing how proficient the Navy's ASW forces really are and what skills require improvement. Because submarines would be much more difficult to detect in training, another effect of training with reduced power is that Navy surface ships would have less opportunities to practice attacking submarines. Over time, operating under reduced power would condition the Sailors to expect conditions that they would not experience in a real world combat situation and would not allow them to train the way they would be expected to fight, resulting in an increased risk to the Strike Group's ability to survive. 27. Alternatively, trying to alleviate the risk identi fied in the previous figure by directing the ships to move closer together would only hinder rather than help the situation. The figure on the following page identifies the heightened risk in doing this: Even collapsing the formation to compensate for oper ating under reduced power will not allow protection of the aircraft carrier. The destroyers will be attacked pri or to detecting the submarine. The submarine will then be free to destroy the aircraft carrier. 28. This illustration does not fully reflect the actual conditions in a warfare environment because submarines would not be the only threat. Strike Groups must also be positioned and trained to defend against possible threats on the surface and air. For example, collapsing the formation to compensate for reduced sonar operat ing levels may not allow for adequate anti-air defense by the escorts against enemy aircraft. It may not also allow the Strike Group to counter weapons released from oth er naval vessels attacking the Strike Group. But, even if the Navy could collapse the formation, it does not help in this case because the submarines' weapons range ex ceeds the range at which it can be detected using active SONAR by the escort ships. So with reduced SONAR power, the submarine is free to shoot the escorts first, and then the aircraft carrier. The "reach" of the sub marine's weapon is greater than the "reach" of the es corts' SONAR, placing the survivability of the Strike Group at risk and once again training the Sailors in a different manner than they would be expected to con duct combat operations. 29. The graphic below contains range rings and rec tangular shaped sectors that illustrate the difficulty in detecting a modern diesel-electric submarine at a given range when sonar power levels are reduced. The sur face ship with sonar is in the center of the circles. reduction. The reason is that decibel levels are on a logarithmic scale, not a linear scale. While seemingly minor, a 6 dB reduction results in a power level only 25 percent of the original power. Passive sonar provides very little opportunity for detecting the submarine until it is very close, representing a potentially high risk of submarine attack on the surface vessel, but note in the left graphic above that MFAS at normal operating power provides a nearly unbroken circle of detection opportunity against the submarine, representing a greatly reduced risk of submarine attack on the surface vessel. VI. HISTORY OF NAVY MITIGATION MEASURES 30. In order to understand the mitigation that the Navy currently imposes upon its Fleets, it is important to understand the Navy's history with regards to protec tive measures. The Navy historically has used protec tive measures developed through scientific research to ensure its training reduces the possibility of harm to marine mammals but also permits effective training. Navy policy expressed in December 2000 tasked Fleet Commanders to take a programmatic approach to envi ronmental compliance in at-sea ranges and operating areas. In parallel with Navy's programmatic approach, the Fleets implemented certain protective measures during SONAR and non-SONAR activities as briefly described below. A. Protective Measures Assessment Protocol (PMAP) 31. In October 2004, the Navy instituted Protective Measures Assessment Protocol (PMAP). PMAP is a computer-based tool that provides commanding officers with environmental situational awareness and recom mends protective measures that are to be implemented during routine unit level training that occurs in outside of established Department of Defense maritime ranges and established operating areas. The tool provides mar ine resource protective measures for 17 specific, routine training and exercise activities that have been developed to maximize the Navy's protection and conservation of important marine resources. The 17 specific training/ exercise events include torpedo exercises involving use of MFAS, helicopter dipping SONAR training opera tions, and ship and submarine MFAS usage. 32. Specifically, PMAP requires special consideration of whether to halt MFAS training when the following conditions are encountered in aggregate: strong surface duct, significant bathymetry (composed of steep or com plex features such as continental shelf break, seamounts and canyons), the use of multiple MFAS systems over an extended period of time, and constricted channels or li mited egress for marine mammals.2 If training in these aggregate conditions is necessary, a vessel is required to obtain higher approval via the chain of command. 33. Further, trained lookouts are required to survey for marine mammals prior to activity commencement and during any MFAS exercise. Submarines are requi red to use passive acoustic means to monitor for the presence of marine mammals. PMAP also contains pow er down mitigation measures when marine mammals are detected close to the vessel. As part of PMAP, Navy im plemented safety zones based on research that deter mined the onset of Temporary Threshold Shift (TTS) oc curred at about 195 dB.3 B. RIMPAC in General 34. RIMPAC is a unique training event. With the Rim of the Pacific (RIMPAC) Exercise conducted bien nially in the Hawaiian operating area, the United States Pacific Fleet, which is responsible for the Third Fleet and the Seventh Fleet, seeks to enhance interoperabil ity4 between Pacific Rim armed forces, as a means of promoting stability in the region to the benefit of all par ticipating nations. 35. RIMPAC is different from JTFEX and COMP TUEX conducted offshore of southern California in many important ways. RIMPAC is not an exercise in tegral to the Fleet Response Training Plan (FRTP), like JTFEX and COMPTUEX. The FRTP is a process that is designed to fulfill the Chief of Naval Operation's obligation under Section 5062 of Title 10 of the U.S. Code, which requires organization, training and equip ping of all naval forces for combat. The FRTP is an ard uous training cycle that ensures U.S. forces achieve the highest possible readiness levels prior to deployment. As part of the FRTP, conducting JTFEX and COMP TUEX aligns Navy capabilities and missions in support of combatant commander and Navy requirements. Both JTFEX and COMPTUEX, unlike RIMPAC, are part of the integrated phase of training for U.S. and some allied forces, which requires a synthesis of unit and staff ac tions into a coordinated Strike Group necessary for surge and readiness certification. RIMPAC does not fit into any of the defined progressive levels of graduate level ASW training for Navy forces because of RIMPAC's unique multi-national training focus. The RIMPAC exercise is focused on command and control among the nations involved, and not focused on certify ing Strike Groups for deployment. RIMPAC offers the only opportunity for military forces from both the Wes tern and Eastern Pacific to train together in scripted, but realistic, hostile scenarios, and in that regard is a vital training exercise. For these reasons, equating what was done in past RIMPAC exercises for purposes of mitigation, to what mitigation should be done in up coming JTFEX or COMPTUEX off Southern California does not make sense, as is explained more thoroughly below. C. RIMPAC 2004 36. Even before the NRDC lawsuit challenging RIM PAC 2006, the Navy independently chose to require sci ence-based protective measures by all U.S. participants in RIMPAC 2004 through an operational order (and Navy had also started requiring protective measures in PMAP, discussed above). Those measures were to be followed to the maximum extent practicable. 37. Surface and submarine vessel protective mea sures required observers to visually survey for and av oid operating active SONAR when sea turtles or marine mammals were observed. 38. Both submarines and surface vessels were to monitor acoustic detection devices for indications of close aboard (which means risk of collision or near col lision exists) marine mammals (high bearing rate bio logic contacts). When a surface vessel or a submarine conducting active SONAR training detected a marine mammal close aboard, the vessel was to reduce maxi mum SONAR levels. Particularly, when a marine mam mal was detected by any means within 600 feet (183 meters) of the SONAR dome, the ship or submarine was to limit active transmissions at least 4db below their equipment maximum for sector search modes. Then the submarine or ship was to continue to limit the maximum transmission levels by this 4dB factor until the marine mammal was no longer within 600 feet (183 meters) of the SONAR dome. 39. If the marine mammal was detected by any means within 300 ft (92 meters) of the SONAR dome, the prin cipal risk to the mammal changed from acoustic harass ment to potential physical collision. Therefore, ships and submarines were directed to maneuver to avoid col lision and follow standard whale strike avoidance pro cedures. 40. If a seal was detected by any means (sight or sound) within 1,050 feet (320 meters) of the SONAR dome, then the ship or submarine was to limit active transmission levels to at least 4 dB below equipment maximum for sector search mode. Then the ship or sub marine was to continue to limit maximum power levels by this 4 dB factor until the ship or submarine deter mined that the seal was no longer within 1,050 ft (320 meters) of the SONAR dome. 41. For dolphins only, if after conducting an initial maneuver to avoid close quarters with dolphins, the ship or submarine concluded that dolphins were deliberately closing on the ship to ride the vessel's bow waves, no further mitigation actions were necessary. While in the shallow wave area of the vessel near the bow, dolphins are out of the main transmission axis of the mainframe active SONAR and are exposed to significantly lower power levels. 42. Aircraft protective measures included helicopters observing and surveying the intended exercise area for marine mammals and sea turtles for 10 minutes before dipping active SONAR transducers in the water. Ad ditionally, helicopters were also required to not dip their active SONAR transducer within 600 feet (183 meters) of a marine mammal or sea turtle. Then, if a marine mammal or sea turtle was detected while a helicopter had its SONAR dipped and pinging, the SONAR pinging would be halted if a marine mammal or sea turtle was located closing within 150 feet (46 meters). 43. The measures used in RIMPAC 2004 (July) resul ted in sound exposure received levels of 185 dB at 600 feet and provided mitigation based on the state of mar ine mammal science at the time. D. RIMPAC 2006 44. In June 2006, in preparation for RIMPAC 2006, the Navy obtained the first Incidental Harassment Authorization (IHA) from National Marine Fisheries Service (NMFS) related to SONAR use in naval training activities, pursuant to the Marine Mammal Protection Act. The measures contained in the RIMPAC IHA were unprecedented in their scope. Per the IHA, the Navy prepared an After Action Report analyzing the opera tional and environmental effectiveness of the IHA mea sures. That After Action Report analyzed the effective ness of measures common to both the RIMPAC IHA and the NDE I. 45. Because of the unique nature of RIMPAC in gen eral, as discussed above, the mitigation measures did not compromise the primary objectives of RIMPAC: multi- national coordination and interoperability. But, as the RIMPAC 2006 After Action Report made clear, the use of some of these mitigation measures compromised realistic ASW training. This analysis is discussed in detail below. E. National Defense Exemption I (NDE I) 46. The MMPA allows the Secretary of Defense, in consultation with the Secretary of Commerce, to exempt from the MMPA actions that are necessary for the national defense. Three days after issuance of the IHA, the Deputy Secretary of Defense issued National De fense Exemption I (NDE I), exempting all non-RIM PAC MFAS activities from the MMPA's permitting process for a six month period. In seeking the exemp tion, and as part of its terms, the Secretary of Defense worked with NMFS to develop mitigation measures that were to be followed when using mid-frequency ac tive SONAR during the 6 month period of the exemp tion. The effectiveness of the measures and their opera tional impact was not fully known prior to their adop tion. Therefore, NDE I represented an effort to in crease protection of marine mammals while ensuring ASW training was not sacrificed. It did so through miti gation measures which would be reviewed and developed with operational evaluation and input during the six month period of use. The measures contained in NDE I required the following: a. Shipboard lookouts were required to be qual ified watchstanders who completed NMFS-approved Marine Species Awareness Training (MSAT); b. Ships and surfaced submarines were required to have personnel on lookout with binoculars at all times while the vessel was moving through the water, who were to maintain surveillance of the area visible around the vessel and to report the sightings of any marine spe cies disturbance to the water's surface, or any object, to the Officer in Command. Such lookout personnel were to have completed the marine species awareness train ing, and at least one person with the training was to be present and on watch at all times during operation of tactical mid-frequency SONAR, on each vessel operating mid-frequency SONAR; c. Aviation units participating in ASW events were to conduct and maintain, whenever possible, sur veillance for marine species prior to and during ASW events, and to report sightings immediately to the ships in the vicinity of the event; d. Ship and submarine SONAR operators were to check for passive indications of close aboard marine mammals prior to commencing ASW operations involv ing mid-frequency SONAR, and were to operate SO NAR at the lowest practicable level, not to exceed 235 dB, except for occasional short periods of time to meet tactical training objectives. Use of MFA SONAR at source levels above 235 dB was to be logged and re ported; e. The Navy did not intend to, and the IHA did not permit, use of MFA SONAR within 25km of the 200- m isobath during RIMPAC 2006 except during choke point exercises and on the Pacific Missile Range Facil ity. Therefore, such a measure was agreed to as an ex clusion zone measure. But, in major fleet exercises oth er than RIMPAC 2006 for which NDE I applied, MFA SONAR was restricted within 12nm of a coast, except at established ranges that were clearly within 12 nautical miles such as the ranges at San Clemente Island and Pacific Missile Range Facility. Additionally, NDE I prohibited operation of MFA SONAR in constricted channels except during choke point exercises, which re quired additional mitigation. f. NDE I established safety zones requiring reduction of MFA SONAR power levels when marine mammals were detected within a certain range. For helicopters, if a marine mammal was within 200 yards of the SONAR transducer, then the SONAR transducer would not be dipped or if already dipped, any pinging would be stopped. For ships and submarines, if a mar ine mammal was within 1,000 meters of the SONAR dome, the ship or submarine was to decrease SONAR transmissions by 6 dB below its normal operating level. The reduced transmission was to continue until either the animal had been seen to leave the area, had not been seen for 30 minutes, or the vessel had traveled more than 2,000 meters beyond the location of the sighting. If a mammal was detected within 500 meters of the SONAR dome, the transmitting level was to be reduced by 10 dB below its normal operating level until the ani mal had been seen to leave the area, had not been seen for 30 minutes, or the vessel had traveled 1,500 meters beyond the location of the sighting. If the mammal was detected within 200 meters of the SONAR dome, active SONAR transmission was to cease completely and the vessel was to maneuver to avoid the animal. SONAR use was not to resume until the animal was seen to leave the area, had not been seen for 30 minutes, or the vessel had traveled more than 1,200 meters beyond the location of the sighting. The above safety zone distances were increased if significant surface ducting were present, to a 6 dB decrease in transmission at 2,000 meters, a 10 dB decrease in transmission at 1,000 meters, and cessation of use at 500 meters. In low visibility conditions, reduc tion in transmission levels were to occur based upon the ability to detect marine mammals within the standard safety zone distances. In other words, if visibility pre vented detection of mammals out to the prescribed safe ty zones, Navy was required to power down as if mam mals were present in the zones they were unable to see; g. Any choke point exercises required additional coordination with NMFS, one Navy observer dedicated to detecting marine mammals per ship, and monitoring of the choke point areas before, during, and after the exercise; h. The Navy was to coordinate with the NMFS Stranding Coordinator for any unusual marine mammal behavior, and to provide an After Action Report to NMFS assessing the effectiveness of mitigation and monitoring measures, and the results of the monitoring. These measures, adopted from the NMFS IHA, were analyzed by the Navy Fleets along with the RIMPAC measures within the RIMPAC 2006 After Action Report to inform the eventual decision to seek a second National Defense Exemption upon NDE I's expiration. Certain NDE I mitigation measures restricted Navy's ability to conduct training necessary for operational requirements. F. National Defense Exemption II (NDE II) 47. Following RIMPAC 2006, NMFS and Navy anal yzed the 2006 RIMPAC After Action Report to deter mine which mitigation measures were effective. NDE II, issued in January 2007 after the consultation with NMFS, contained 29 mitigation measures. Many of the NDE I measures were incorporated in NDE II, in prin ciple or in some cases in the same language, because they were determined to be effective based on RIMPAC 2006 analysis. Additional measures were added to NDE II, including training for officers, additional passive monitoring, requirements to use all available sensors and optical systems, and requirements for more specific training and techniques for night lookouts. Additionally, another measure was added (measure #26 of NDE II) recognizing that a confluence of conditions in the aggre gate (rapid bathymetry differences, multiple ships active in the area for extended time in close proximity to one another, near land masses separated by less than 35 nautical miles and at least 10 nautical miles in length, significant surface ducting) may contribute to marine mammal stranding, particularly beaked whales. The mi tigation measures contained in NDE II were developed with the benefit of the After Action Report from the 2006 RIMPAC exercise, which provided specific data on the estimate of the number of marine mammals affected by RIMPAC ASW based on (1) both the model results of real-time exercises and sightings of marine mammals; (2) an assessment of the mitigation and monitoring mea sures with recommendations on how to improve them; (3) results of marine species monitoring; and (4) as much unclassified information as the Navy could provide re garding when and where SONAR was used so it could be coordinated with observed cetacean behaviors. When finally implemented, NDE II incorporated those mea sures set forth in the 2006 RIMPAC IHA that were shown to be effective. Therefore, NDE II was better suited to allowing maximum effective Navy training while still preserving and protecting marine species be cause it was based on Fleet input from actual training observations and conclusions and because it was based on additional scientific analysis by NMFS and the Navy. With use of NDE II, no known strandings or scientifi cally measured harm have occurred, therefore the miti gation methods have been shown effective. 48. One of the NDE II measures includes a power down or safety zone scheme. The scheme is substan tially identical to NDE I, except that the NDE II dis tances are defined in yards, rather than meters. The Navy made this revision because United States sailors routinely measure distances at sea in terms of yards and nautical miles rather than in meters or kilometers. The NDE II scheme, therefore, requires powering down of at least 6 dB below normal levels when any marine mammal is detected within 1,000 yards of the SONAR dome. The ship is required to maintain the reduced lev el of transmission until the mammal has been seen to leave the area, has not been detected for 30 minutes, or the ship has transited 2,000 yards beyond the location of the last detection. If a marine mammal is detected with in or closing to within 500 yards, the SONAR transmis sions are to be reduced to at least 10 dB below the nor mal operating level and shall be maintained at that low er level until the same requirements above are met. SO NAR operation is to cease if the mammal is detected within or closing to within 200 yards of the SONAR dome. 49. Reduction of SONAR power levels by 6 dB to 10 dB results in a 50 to 80 percent reduction of detection of submarines in the area due to a decrease in power of 75 to 90 percent, resulting in a ship's crew not learning of its capabilities and not learning how to use its sensors when required to counter a submarine threat as dis cussed in more detail, with graphics, above. Reduction of SONAR power levels results in an inability to detect submarines at greater distances than reflect real world situations, as submarines are capable of striking ships at distances greater than a powered-down SONAR would be able to detect. 50. The illustrated graphic below this paragraph demonstrates that current NDE II measures provide an adequate safety margin to marine mammals and allows for effective realistic ASW training. More restrictive power reduction and safety zone schemes, however, do not show appreciable further protection of exposure levels of marine mammals to MFAS but greatly reduce the ability of the sonar to detect submarines. The Temporary Threshold Shift (195 dB) is a scientifically measured, peer-reviewed value that identifies a causal relationship between MFAS exposure level and a tem porary harm to marine mammals. A temporary dim inishment of hearing acuity is associated with a received underwater sound exposure level (SEL) of 195 dB. NDE II mitigation procedures are not expected to ex pose marine mammals to more than 179 dB at 200 yards. For a 1 second pulse, this is just about 3% of the SEL associated with a temporary reduction in hearing acuity, meaning the mammal only receives 3% of the energy required to cause temporary harm. Therefore, the Navy's power-down mitigation measure includes a sig nificant safety margin. Maximum received level (top line) to which a marine mammal would be exposed using NDE II mitigation pro cedures is 179 dB. This occurs just outside the 200 yard shutdown range. The maximum received level just be fore 6 dB power down at 1000 yards is 175 dB and the maximum dB just before 10 dB power down at 500 yards is 175 dB. At the 500 and 200 yard points, the primary concern is not behavioral disturbance (because the animal is not likely being disturbed and may be drawn to the sonar ping), but the potential for injury due to ex posure to MFA sonar or vessel strike. The 500 and 200 yard measures have a large safety margin to prevent injury. NDE II mitigation procedures allow a maximum single ping exposure of about 2.5% (or about 1/40) of the amount of energy (bottom line above) known to cause the onset of temporary diminished audio acuity in some marine mammals. Placed in perspective, the level to which the Navy already mitigates (169 dB when reduc ing 6dB at 1000 yards) is even lower than humpback whale's vocalization at 190 dB (.4 to 4.0 kHz frequency). Marine mammals are often exposed to higher sound lev els in their own communications.vessel. VII. NAVY ANALYSIS OF RIMPAC 2006 AND NDE I MITIGATION MEASURES THAT HAVE BEEN MOD IFIED 51. This section will explain why previous measures used during RIMPAC 2006 and NDE I are either modi fied or no longer used. A. Enlarging Safety Zones Because of Strong Surface Ducting 52. Surface ducting is a condition when water con ditions (e.g., temperature layers, lack of wave action) re sult in sound energy emitted at or near the surface to be refracted back up to the surface, then reflected from the surface only to be refracted back up to the surface so that relatively little sound energy penetrates to the depths that otherwise would be expected. This increases active sonar detection ranges in a narrow layer near the surface, but decreases active sonar detection below the thermocline5-a phenomenon that submarines have long exploited. Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advan tage of them. Measurements of surface ducting taken during RIMPAC 2006 indicated a large variation in the presence of strong surface ducts over relatively short distances. The models used in forecasting a strong sur face duct used high resolution that still resulted in gen- eralized sea state, sound Speed Velocity Profile (SVP) and cloud cover over a large operational area covered by exercise participants. Therefore, these measured loca tion variations so differ from forecasts that concluding whether a strong surface duct existed was inherently inaccurate. Additionally, the measure failed to account for location variations from tidal flux, differential sea states that are frequently seen in channels, the fact that there are shear lines6 in some locations, and the occur rence of currents and eddies. Variations due to these characteristics have significant effects on surface duct ing. Because there is no evidence that surface ducting in and of itself causes MFAS overall effects to marine mammals to be greater, and because it is scientifically unknown to what extent the presence of surface ducting was significant in the known beaked whale stranding incidents, the RIMPAC After Action Report recommen ded omitting this separate measure for NDE II. Navy still considers significant surface ducting in the current NDE II measure #26 as one condition of an aggregate of many conditions (land masses surrounded by less than 35 nm and at least 10 nm in length, areas of rapid bathymetry change from 1000-6000 meters within short horizontal distance (5nm), and where multiple ships (greater than 3) are operating MFAS in the same area over at least 6 hours and less than 10 nm apart) that are to be considered in exercise planning. If those condi tions exist in the aggregate, dedicated aerial surveil lance will occur in the area ahead of the exercise par ticipants to detect any marine mammals that could be exposed to active SONAR. Additionally, normal safety zone requirements always apply and any detected mar ine mammals exhibiting unusual behaviors are required to be reported to the Officer in Tactical Command of the exercise who decides whether to delay, suspend or alter the exercise. B. Low Visibility Specific Measure 53. This RIMPAC 2006 mitigation measure called for additional detection measures such as infrared (many Navy ships have stabilized infrared sensors that can de tect animals without any visible light because of the tem perature differences between the animal and the water) or enhanced passive acoustic detection in "low visibility conditions (i.e., whenever the entire safety zone cannot be effectively monitored due to the nighttime, high sea state, or other factors)." If detection of marine mam mals was still not possible out to the prescribed safety zone, the measure required Navy to power down sonar as if marine mammals were present in the zones they could not see. The operational necessity to preserve ASW proficiency in a variety of conditions, as discussed above in section V of this declaration, and the recog nition that prohibiting or limiting vessels from using MFAS during periods of restricted visibility violates in ternational navigational rules, increases navigational risk, and jeopardizes the safety of the vessel and crew compelled omission of this measure. The Navy is, in fact, capable of effectively monitoring a 1,000 meter safety zone at night using night vision goggles, infrared cameras, and passive acoustic monitoring. NDE II still requires personnel to use all available sensors and op tical systems (such as night vision goggles) to aid in de tection of marine mammals when employing MFAS so even in restricted visibility conditions, the Navy takes advantage of all available sensors. C. Additional Measures during Chokepoint Exer cises or in Constricted Channels 54. A chokepoint is a strategic strait or canal. Al though there are over 200 straits around the world, only a handful around the world are considered to be "choke points," such as the Strait of Gibraltar, Panama Canal, Strait of Magellan, Strait of Malacca, Bosporus and Dar danelles, Strait of Hormuz, Suez Canal, and Bab el Man deb. While chokepoints are relatively few in number, significant quantities of international commerce and na val shipping move through these chokepoints making them strategically important to the United States be cause a single quiet diesel submarine can position itself in the chokepoint and effectively block access beyond that point. RIMPAC 2006 required extensive specific additional measures for chokepoint exercises. The pri mary similarity of these chokepoints is lengthy shore lines that restrict maneuverability. The longer and more narrow the passage, the more likely the chokepoint creates an area of restricted egress for marine mam mals. The waters off southern California have no actual constricted channels so a mitigation measure particular to chokepoints or constricted channels is not necessary in southern California waters, and even if it were, NDE II already considers them in measure #26. D. Twelve nautical mile (nm) coastal exclusion in NDE I 55. In NDE I, the Navy agreed not to conduct exer cises within 12 nm of the coastline except for activities at San Clemente and PMRF (a range in Hawaii). This condition was arbitrary and was not based on any sci ence. For example, there is no scientific evidence that any set distance from the coast is more protective of marine mammals than any other distance. In post-exer cise analysis, the Navy also determined that limiting the exercise to outside the 12 nm distance prevented crew members from gaining critical experience in training in shallow waters, and training in littoral waters. Sound propagates differently in shallower water. In real world events, it is highly likely crew members would be work ing in these types of areas, and these are the types of areas where diesel-electric submarines would be opera ting. Without the critical training near shore that ASW exercises provide, crews will not have the experience needed to successfully operate SONAR in these types of waters, impacting vital military readiness. In any event, the Navy has planned the SOCAL exercises to occur within an exercise range (W-291), the eastern boundary of which is farther than 12 nm off the United States mainland coast. E. 25 Kilometers of 200 meter Isobath 56. In RIMPAC 2006 only, MFAS training was pro hibited within 25 kilometers of the 200 meter isobath. There is no specific evidence that marine mammals are more or less likely to be present within the 200 meter isobath nor within 25 kilometers from the 200 meter iso bath. In RIMPAC 2006, this measure had no observable effect on the protection of marine mammals during the exercise, but its effect on ASW training was clear and significant because it effectively prohibited ASW train ing in the littorals, a vital realistic training area known to be a diesel submarine threat environment. Also, in the event that this measure was to be applied to SOCAL, and in NDE I it was not, this type of measure cannot be transferred from one part of the world to the other. The bathymetry off of the Hawaiian Islands where RIMPAC is held is much different than the bathymetry off of Southern California. For example, while there is a smooth and steep transition from the coast of the Hawai ian Islands to the deep seabed, the underwater bathy metry off southern California appears more like a moun tain range as opposed to a plain. Nautical charts do not contain a 200 meter isobath line that could be used as reference datum. If the Navy were required to comply with such a measure, it would greatly complicate navi gation, exercise planning, exercise implementation, and would prevent the Navy from using portions of its in strumented underwater range off San Clemente Island. VIII. MEASURES NAVY WILL EMPLOY BEYOND NDE II 57. The Navy, in recognition of the Court's concern ov er mitigation measures employed during RIMPAC 2006 that are not a part of NDE II, will commit to implemen ting the following additional measures that, when added to the 29 previously-described mitigation measures, should be the full complement of measures for a tailored preliminary injunction for the remaining JTFEX/ COMPTUEX exercises. 58. The Navy will modify the NDE II safety zone pro visions so that Navy will power-down 6 dB if a marine mammal is detected within 1,000 meters (instead of yards) of the ship. The maximum received level before the power-down at 1,000 meters is 174.7 dB; with a 6 dB power-down at 500 meters is 174.4 dB; and with an additional 4 dB power down at 200 meters is 178.2 dB. These levels show that a marine mammal is never ex posed to a dB level greater than 178.2 dB from the time the first power-down is implemented at 1000 meters until the sonar is secured at 200 meters. The remaining safety zone provisions of NDE II will also be converted to meters from yards. This will increase the size of the safety zone by roughly 10%, increasing the area moni tored by the Navy by over 618,000 square yards. The increased safety zone applies at all times and in all en vironmental conditions: night, low visibility, and surface ducting. The provision provides additional protection to marine mammals, but does not unduly restrict Navy training. 59. For coastal operations, the Navy will commit to not operating sonar landward of the eastern boundary of the defined exercise range (W-291), which is the black line represented on the below map: and is defined by the following coordinates: LATITUDE NORTH 33° 14' 24" 33° 15' 00" 33° 12' 30" 32° 53' 00" 32° 36' 50" 32° 31' 30" 32° 28' 00" LONGITUDE WEST 118° 28' 00" 118° 15' 00" 117° 58' 48" 117° 41' 43" 117° 32' 57" 117° 30' 03" 117° 30' 03" 60. This condition confirms that the training will occur in W-291, and that the entirety of the W-291 training area is located more than 12nm from the United States mainland coast. 61. The Navy will also commit that it will not operate MFAS within the currently defined limits of the Channel Islands National Marine Sanctuary, as the Sanctuary is not within the boundary of the defined exercise range (W-291). 62. There is only one island within the boundary of W- 291: San Clemente Island. For San Clemente Island, the Navy will commit to not operating sonar within an area, which is the black box represented on the above map, surrounding San Clemente Island, defined by the following coordinates: LATITUDE NORTH LONGITUDE WEST 33° 07' 40" 118° 36' 15" 33° 00' 15" 118° 43' 00" 32° 46' 30" 118° 34' 30" 32° 53' 00" 117° 41' 43" 32° 40' 25" 118° 29' 00" 32° 40' 25" 118° 29' 00" 32° 47' 15" 118° 17' 15" 32° 50' 30" 118° 18' 15" 63. This condition confirms that MFA sonar training is located at least 5nm away from the western shore of San Clemente Island. In addition, this condition prevents MFA sonar training within 3nm of the island's other shores. 64. The Navy will post two dedicated marine mammal lookouts on all surface ships operating MFA sonar for all exercises. 65. The Navy will confirm the presence of at least 3 non-dedicated watchstanders on all surface ships oper ating MFA sonar for all exercises. 66. The Navy will notify all ASW-capable surface ships that non-dedicated watchstanders are required to look out for marine mammals during all exercises and that all sightings are to be reported. 67. The Navy will ensure aircraft operating during the exercises will monitor for marine mammals and that all sightings are reported. 68. The Navy will confirm that all personnel engaged in passive sonar will monitor for marine mammals and report detection. All aircraft flying low enough to rea sonably spot marine mammals will watch for marine mammals and report to ships in the vicinity for dissem ination and appropriate action. 69. For the Tanner and Cortez Banks: from July to September of 2008, in recognition of blue whale migra tion patterns, the Navy will conduct pre-exercise moni toring of the Tanner and Cortez Banks prior to the com mencement of a JTFEX or COMPTUEX. This moni toring will be one full hour or more of pre-exercise aerial monitoring. The Navy will consider relocating or de laying the exercise based on the result of the aerial mon itoring. The decision to relocate or delay would be made by Commander, Third Fleet, who will issue messages to exercise participants (1) advising them to be generally on the lookout for blue whale presence near Tanner and Cortez Banks; and (2) providing the results of the aerial monitoring to assist with (1). 70. During March 7-21, 2008 and April 15 to May 15, 2008, in recognition of gray whale off-shore migration patterns, the Navy will: conduct pre-exercise aerial monitoring in the area around the off-shore migration corridor during a JTFEX or COMPTUEX. Aerial moni toring would cover the portion of the gray whale migra tion path that passed through the exercise area. The Navy will consider relocating or delaying the exercise based on results of the aerial monitoring. The decision to relocate or delay would be made by Commander, Third Fleet, who will issue pre-exercise advisory messa ges to exercise participants, (1) advising them to be gen erally on the lookout for gray whale presence; and (2) providing the results of the aerial monitoring to assist with (1). IX. CONCLUSION 71. The current marine mammal mitigation measures in NDE II are the result of both Navy and NMFS ap plying best available science to protect marine mammals while allowing realistic and effective Navy sonar train ing. The measures in section VIII provide additional protection to marine mammals, are offered in recog nition of the Court's expressed concerns, and also allow the Navy to continue to certify its Strike Groups. The Navy recommends the NDE II mitigation measures and the additional measures of section VIII as the appro priate mitigation measures for a tailored preliminary injunction. Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief. Executed on the 14 day of December, 2007 at New port, RI. By: /s/ ILLEGIBLE John M. Bird Rear Admiral, U.S. Navy 1 Mutual Interference is caused by a transmission of one ship sonar system being received unintentionally by another ships system. 2 The factors are currently included in aggregate as a specific measure to protect beaked whales under the current Marine Mammal Protection Act National Defense Exemption II, measure # 26. 3 Research later published in Finneran, J.J., D.A. Carder, C.E. Schlundt and S.H. Ridway, 2005. Temporary threshold shift in bottle nose dolphins (Tursiops truncates) exposed to mid-frequency tones. Journal of the Acoustical Society of America. 118:2696-2705. 4 "Interoperable" means that the commanders and units of all the forces must be able to communicate effectively, understand the capabil ities and limitations of each others' forces, and be able to execute the tactics and common doctrine quickly and precisely. 5 The transition layer between the mixed surface layer of the ocean and the deep water layer, where temperature changes rapidly with depth. 6 For example, the Hawaiian Islands present obstacles to the north easterly trade winds, creating calm regions in the leeward (downwind) side of the islands. Sharp horizontal shear lines usually separate the trade winds and heavy seas from the calm regions.
reduction. The reason is that decibel levels are on a logarithmic scale, not a linear scale. While seemingly minor, a 6 dB reduction results in a power level only 25 percent of the original power. Passive sonar provides very little opportunity for detecting the submarine until it is very close, representing a potentially high risk of submarine attack on the surface vessel, but note in the left graphic above that MFAS at normal operating power provides a nearly unbroken circle of detection opportunity against the submarine, representing a greatly reduced risk of submarine attack on the surface vessel.
VI. HISTORY OF NAVY MITIGATION MEASURES
30. In order to understand the mitigation that the Navy currently imposes upon its Fleets, it is important to understand the Navy's history with regards to protec tive measures. The Navy historically has used protec tive measures developed through scientific research to ensure its training reduces the possibility of harm to marine mammals but also permits effective training. Navy policy expressed in December 2000 tasked Fleet Commanders to take a programmatic approach to envi ronmental compliance in at-sea ranges and operating areas. In parallel with Navy's programmatic approach, the Fleets implemented certain protective measures during SONAR and non-SONAR activities as briefly described below.
A. Protective Measures Assessment Protocol (PMAP)
31. In October 2004, the Navy instituted Protective Measures Assessment Protocol (PMAP). PMAP is a computer-based tool that provides commanding officers with environmental situational awareness and recom mends protective measures that are to be implemented during routine unit level training that occurs in outside of established Department of Defense maritime ranges and established operating areas. The tool provides mar ine resource protective measures for 17 specific, routine training and exercise activities that have been developed to maximize the Navy's protection and conservation of important marine resources. The 17 specific training/ exercise events include torpedo exercises involving use of MFAS, helicopter dipping SONAR training opera tions, and ship and submarine MFAS usage.
32. Specifically, PMAP requires special consideration of whether to halt MFAS training when the following conditions are encountered in aggregate: strong surface duct, significant bathymetry (composed of steep or com plex features such as continental shelf break, seamounts and canyons), the use of multiple MFAS systems over an extended period of time, and constricted channels or li mited egress for marine mammals.2 If training in these aggregate conditions is necessary, a vessel is required to obtain higher approval via the chain of command.
33. Further, trained lookouts are required to survey for marine mammals prior to activity commencement and during any MFAS exercise. Submarines are requi red to use passive acoustic means to monitor for the presence of marine mammals. PMAP also contains pow er down mitigation measures when marine mammals are detected close to the vessel. As part of PMAP, Navy im plemented safety zones based on research that deter mined the onset of Temporary Threshold Shift (TTS) oc curred at about 195 dB.3
B. RIMPAC in General
34. RIMPAC is a unique training event. With the Rim of the Pacific (RIMPAC) Exercise conducted bien nially in the Hawaiian operating area, the United States Pacific Fleet, which is responsible for the Third Fleet and the Seventh Fleet, seeks to enhance interoperabil ity4 between Pacific Rim armed forces, as a means of promoting stability in the region to the benefit of all par ticipating nations.
35. RIMPAC is different from JTFEX and COMP TUEX conducted offshore of southern California in many important ways. RIMPAC is not an exercise in tegral to the Fleet Response Training Plan (FRTP), like JTFEX and COMPTUEX. The FRTP is a process that is designed to fulfill the Chief of Naval Operation's obligation under Section 5062 of Title 10 of the U.S. Code, which requires organization, training and equip ping of all naval forces for combat. The FRTP is an ard uous training cycle that ensures U.S. forces achieve the highest possible readiness levels prior to deployment. As part of the FRTP, conducting JTFEX and COMP TUEX aligns Navy capabilities and missions in support of combatant commander and Navy requirements. Both JTFEX and COMPTUEX, unlike RIMPAC, are part of the integrated phase of training for U.S. and some allied forces, which requires a synthesis of unit and staff ac tions into a coordinated Strike Group necessary for surge and readiness certification. RIMPAC does not fit into any of the defined progressive levels of graduate level ASW training for Navy forces because of RIMPAC's unique multi-national training focus. The RIMPAC exercise is focused on command and control among the nations involved, and not focused on certify ing Strike Groups for deployment. RIMPAC offers the only opportunity for military forces from both the Wes tern and Eastern Pacific to train together in scripted, but realistic, hostile scenarios, and in that regard is a vital training exercise. For these reasons, equating what was done in past RIMPAC exercises for purposes of mitigation, to what mitigation should be done in up coming JTFEX or COMPTUEX off Southern California does not make sense, as is explained more thoroughly below.
C. RIMPAC 2004
36. Even before the NRDC lawsuit challenging RIM PAC 2006, the Navy independently chose to require sci ence-based protective measures by all U.S. participants in RIMPAC 2004 through an operational order (and Navy had also started requiring protective measures in PMAP, discussed above). Those measures were to be followed to the maximum extent practicable.
37. Surface and submarine vessel protective mea sures required observers to visually survey for and av oid operating active SONAR when sea turtles or marine mammals were observed.
38. Both submarines and surface vessels were to monitor acoustic detection devices for indications of close aboard (which means risk of collision or near col lision exists) marine mammals (high bearing rate bio logic contacts). When a surface vessel or a submarine conducting active SONAR training detected a marine mammal close aboard, the vessel was to reduce maxi mum SONAR levels. Particularly, when a marine mam mal was detected by any means within 600 feet (183 meters) of the SONAR dome, the ship or submarine was to limit active transmissions at least 4db below their equipment maximum for sector search modes. Then the submarine or ship was to continue to limit the maximum transmission levels by this 4dB factor until the marine mammal was no longer within 600 feet (183 meters) of the SONAR dome.
39. If the marine mammal was detected by any means within 300 ft (92 meters) of the SONAR dome, the prin cipal risk to the mammal changed from acoustic harass ment to potential physical collision. Therefore, ships and submarines were directed to maneuver to avoid col lision and follow standard whale strike avoidance pro cedures.
40. If a seal was detected by any means (sight or sound) within 1,050 feet (320 meters) of the SONAR dome, then the ship or submarine was to limit active transmission levels to at least 4 dB below equipment maximum for sector search mode. Then the ship or sub marine was to continue to limit maximum power levels by this 4 dB factor until the ship or submarine deter mined that the seal was no longer within 1,050 ft (320 meters) of the SONAR dome.
41. For dolphins only, if after conducting an initial maneuver to avoid close quarters with dolphins, the ship or submarine concluded that dolphins were deliberately closing on the ship to ride the vessel's bow waves, no further mitigation actions were necessary. While in the shallow wave area of the vessel near the bow, dolphins are out of the main transmission axis of the mainframe active SONAR and are exposed to significantly lower power levels.
42. Aircraft protective measures included helicopters observing and surveying the intended exercise area for marine mammals and sea turtles for 10 minutes before dipping active SONAR transducers in the water. Ad ditionally, helicopters were also required to not dip their active SONAR transducer within 600 feet (183 meters) of a marine mammal or sea turtle. Then, if a marine mammal or sea turtle was detected while a helicopter had its SONAR dipped and pinging, the SONAR pinging would be halted if a marine mammal or sea turtle was located closing within 150 feet (46 meters).
43. The measures used in RIMPAC 2004 (July) resul ted in sound exposure received levels of 185 dB at 600 feet and provided mitigation based on the state of mar ine mammal science at the time.
D. RIMPAC 2006
44. In June 2006, in preparation for RIMPAC 2006, the Navy obtained the first Incidental Harassment Authorization (IHA) from National Marine Fisheries Service (NMFS) related to SONAR use in naval training activities, pursuant to the Marine Mammal Protection Act. The measures contained in the RIMPAC IHA were unprecedented in their scope. Per the IHA, the Navy prepared an After Action Report analyzing the opera tional and environmental effectiveness of the IHA mea sures. That After Action Report analyzed the effective ness of measures common to both the RIMPAC IHA and the NDE I.
45. Because of the unique nature of RIMPAC in gen eral, as discussed above, the mitigation measures did not compromise the primary objectives of RIMPAC: multi- national coordination and interoperability. But, as the RIMPAC 2006 After Action Report made clear, the use of some of these mitigation measures compromised realistic ASW training. This analysis is discussed in detail below.
E. National Defense Exemption I (NDE I)
46. The MMPA allows the Secretary of Defense, in consultation with the Secretary of Commerce, to exempt from the MMPA actions that are necessary for the national defense. Three days after issuance of the IHA, the Deputy Secretary of Defense issued National De fense Exemption I (NDE I), exempting all non-RIM PAC MFAS activities from the MMPA's permitting process for a six month period. In seeking the exemp tion, and as part of its terms, the Secretary of Defense worked with NMFS to develop mitigation measures that were to be followed when using mid-frequency ac tive SONAR during the 6 month period of the exemp tion. The effectiveness of the measures and their opera tional impact was not fully known prior to their adop tion. Therefore, NDE I represented an effort to in crease protection of marine mammals while ensuring ASW training was not sacrificed. It did so through miti gation measures which would be reviewed and developed with operational evaluation and input during the six month period of use. The measures contained in NDE I required the following:
a. Shipboard lookouts were required to be qual ified watchstanders who completed NMFS-approved Marine Species Awareness Training (MSAT);
b. Ships and surfaced submarines were required to have personnel on lookout with binoculars at all times while the vessel was moving through the water, who were to maintain surveillance of the area visible around the vessel and to report the sightings of any marine spe cies disturbance to the water's surface, or any object, to the Officer in Command. Such lookout personnel were to have completed the marine species awareness train ing, and at least one person with the training was to be present and on watch at all times during operation of tactical mid-frequency SONAR, on each vessel operating mid-frequency SONAR;
c. Aviation units participating in ASW events were to conduct and maintain, whenever possible, sur veillance for marine species prior to and during ASW events, and to report sightings immediately to the ships in the vicinity of the event;
d. Ship and submarine SONAR operators were to check for passive indications of close aboard marine mammals prior to commencing ASW operations involv ing mid-frequency SONAR, and were to operate SO NAR at the lowest practicable level, not to exceed 235 dB, except for occasional short periods of time to meet tactical training objectives. Use of MFA SONAR at source levels above 235 dB was to be logged and re ported;
e. The Navy did not intend to, and the IHA did not permit, use of MFA SONAR within 25km of the 200- m isobath during RIMPAC 2006 except during choke point exercises and on the Pacific Missile Range Facil ity. Therefore, such a measure was agreed to as an ex clusion zone measure. But, in major fleet exercises oth er than RIMPAC 2006 for which NDE I applied, MFA SONAR was restricted within 12nm of a coast, except at established ranges that were clearly within 12 nautical miles such as the ranges at San Clemente Island and Pacific Missile Range Facility. Additionally, NDE I prohibited operation of MFA SONAR in constricted channels except during choke point exercises, which re quired additional mitigation.
f. NDE I established safety zones requiring reduction of MFA SONAR power levels when marine mammals were detected within a certain range. For helicopters, if a marine mammal was within 200 yards of the SONAR transducer, then the SONAR transducer would not be dipped or if already dipped, any pinging would be stopped. For ships and submarines, if a mar ine mammal was within 1,000 meters of the SONAR dome, the ship or submarine was to decrease SONAR transmissions by 6 dB below its normal operating level. The reduced transmission was to continue until either the animal had been seen to leave the area, had not been seen for 30 minutes, or the vessel had traveled more than 2,000 meters beyond the location of the sighting.
If a mammal was detected within 500 meters of the SONAR dome, the transmitting level was to be reduced by 10 dB below its normal operating level until the ani mal had been seen to leave the area, had not been seen for 30 minutes, or the vessel had traveled 1,500 meters beyond the location of the sighting. If the mammal was detected within 200 meters of the SONAR dome, active SONAR transmission was to cease completely and the vessel was to maneuver to avoid the animal. SONAR use was not to resume until the animal was seen to leave the area, had not been seen for 30 minutes, or the vessel had traveled more than 1,200 meters beyond the location of the sighting. The above safety zone distances were increased if significant surface ducting were present, to a 6 dB decrease in transmission at 2,000 meters, a 10 dB decrease in transmission at 1,000 meters, and cessation of use at 500 meters. In low visibility conditions, reduc tion in transmission levels were to occur based upon the ability to detect marine mammals within the standard safety zone distances. In other words, if visibility pre vented detection of mammals out to the prescribed safe ty zones, Navy was required to power down as if mam mals were present in the zones they were unable to see;
g. Any choke point exercises required additional coordination with NMFS, one Navy observer dedicated to detecting marine mammals per ship, and monitoring of the choke point areas before, during, and after the exercise;
h. The Navy was to coordinate with the NMFS Stranding Coordinator for any unusual marine mammal behavior, and to provide an After Action Report to NMFS assessing the effectiveness of mitigation and monitoring measures, and the results of the monitoring.
These measures, adopted from the NMFS IHA, were analyzed by the Navy Fleets along with the RIMPAC measures within the RIMPAC 2006 After Action Report to inform the eventual decision to seek a second National Defense Exemption upon NDE I's expiration. Certain NDE I mitigation measures restricted Navy's ability to conduct training necessary for operational requirements.
F. National Defense Exemption II (NDE II)
47. Following RIMPAC 2006, NMFS and Navy anal yzed the 2006 RIMPAC After Action Report to deter mine which mitigation measures were effective. NDE II, issued in January 2007 after the consultation with NMFS, contained 29 mitigation measures. Many of the NDE I measures were incorporated in NDE II, in prin ciple or in some cases in the same language, because they were determined to be effective based on RIMPAC 2006 analysis. Additional measures were added to NDE II, including training for officers, additional passive monitoring, requirements to use all available sensors and optical systems, and requirements for more specific training and techniques for night lookouts. Additionally, another measure was added (measure #26 of NDE II) recognizing that a confluence of conditions in the aggre gate (rapid bathymetry differences, multiple ships active in the area for extended time in close proximity to one another, near land masses separated by less than 35 nautical miles and at least 10 nautical miles in length, significant surface ducting) may contribute to marine mammal stranding, particularly beaked whales. The mi tigation measures contained in NDE II were developed with the benefit of the After Action Report from the 2006 RIMPAC exercise, which provided specific data on the estimate of the number of marine mammals affected by RIMPAC ASW based on (1) both the model results of real-time exercises and sightings of marine mammals; (2) an assessment of the mitigation and monitoring mea sures with recommendations on how to improve them; (3) results of marine species monitoring; and (4) as much unclassified information as the Navy could provide re garding when and where SONAR was used so it could be coordinated with observed cetacean behaviors. When finally implemented, NDE II incorporated those mea sures set forth in the 2006 RIMPAC IHA that were shown to be effective. Therefore, NDE II was better suited to allowing maximum effective Navy training while still preserving and protecting marine species be cause it was based on Fleet input from actual training observations and conclusions and because it was based on additional scientific analysis by NMFS and the Navy. With use of NDE II, no known strandings or scientifi cally measured harm have occurred, therefore the miti gation methods have been shown effective.
48. One of the NDE II measures includes a power down or safety zone scheme. The scheme is substan tially identical to NDE I, except that the NDE II dis tances are defined in yards, rather than meters. The Navy made this revision because United States sailors routinely measure distances at sea in terms of yards and nautical miles rather than in meters or kilometers. The NDE II scheme, therefore, requires powering down of at least 6 dB below normal levels when any marine mammal is detected within 1,000 yards of the SONAR dome. The ship is required to maintain the reduced lev el of transmission until the mammal has been seen to leave the area, has not been detected for 30 minutes, or the ship has transited 2,000 yards beyond the location of the last detection. If a marine mammal is detected with in or closing to within 500 yards, the SONAR transmis sions are to be reduced to at least 10 dB below the nor mal operating level and shall be maintained at that low er level until the same requirements above are met. SO NAR operation is to cease if the mammal is detected within or closing to within 200 yards of the SONAR dome.
49. Reduction of SONAR power levels by 6 dB to 10 dB results in a 50 to 80 percent reduction of detection of submarines in the area due to a decrease in power of 75 to 90 percent, resulting in a ship's crew not learning of its capabilities and not learning how to use its sensors when required to counter a submarine threat as dis cussed in more detail, with graphics, above. Reduction of SONAR power levels results in an inability to detect submarines at greater distances than reflect real world situations, as submarines are capable of striking ships at distances greater than a powered-down SONAR would be able to detect.
50. The illustrated graphic below this paragraph demonstrates that current NDE II measures provide an adequate safety margin to marine mammals and allows for effective realistic ASW training. More restrictive power reduction and safety zone schemes, however, do not show appreciable further protection of exposure levels of marine mammals to MFAS but greatly reduce the ability of the sonar to detect submarines. The Temporary Threshold Shift (195 dB) is a scientifically measured, peer-reviewed value that identifies a causal relationship between MFAS exposure level and a tem porary harm to marine mammals. A temporary dim inishment of hearing acuity is associated with a received underwater sound exposure level (SEL) of 195 dB. NDE II mitigation procedures are not expected to ex pose marine mammals to more than 179 dB at 200 yards. For a 1 second pulse, this is just about 3% of the SEL associated with a temporary reduction in hearing acuity, meaning the mammal only receives 3% of the energy required to cause temporary harm. Therefore, the Navy's power-down mitigation measure includes a sig nificant safety margin.
Maximum received level (top line) to which a marine mammal would be exposed using NDE II mitigation pro cedures is 179 dB. This occurs just outside the 200 yard shutdown range. The maximum received level just be fore 6 dB power down at 1000 yards is 175 dB and the maximum dB just before 10 dB power down at 500 yards is 175 dB. At the 500 and 200 yard points, the primary concern is not behavioral disturbance (because the animal is not likely being disturbed and may be drawn to the sonar ping), but the potential for injury due to ex posure to MFA sonar or vessel strike. The 500 and 200 yard measures have a large safety margin to prevent injury. NDE II mitigation procedures allow a maximum single ping exposure of about 2.5% (or about 1/40) of the amount of energy (bottom line above) known to cause the onset of temporary diminished audio acuity in some marine mammals. Placed in perspective, the level to which the Navy already mitigates (169 dB when reduc ing 6dB at 1000 yards) is even lower than humpback whale's vocalization at 190 dB (.4 to 4.0 kHz frequency). Marine mammals are often exposed to higher sound lev els in their own communications.vessel.
VII. NAVY ANALYSIS OF RIMPAC 2006 AND NDE I MITIGATION MEASURES THAT HAVE BEEN MOD IFIED
51. This section will explain why previous measures used during RIMPAC 2006 and NDE I are either modi fied or no longer used.
A. Enlarging Safety Zones Because of Strong Surface Ducting
52. Surface ducting is a condition when water con ditions (e.g., temperature layers, lack of wave action) re sult in sound energy emitted at or near the surface to be refracted back up to the surface, then reflected from the surface only to be refracted back up to the surface so that relatively little sound energy penetrates to the depths that otherwise would be expected. This increases active sonar detection ranges in a narrow layer near the surface, but decreases active sonar detection below the thermocline5-a phenomenon that submarines have long exploited. Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advan tage of them. Measurements of surface ducting taken during RIMPAC 2006 indicated a large variation in the presence of strong surface ducts over relatively short distances. The models used in forecasting a strong sur face duct used high resolution that still resulted in gen- eralized sea state, sound Speed Velocity Profile (SVP) and cloud cover over a large operational area covered by exercise participants. Therefore, these measured loca tion variations so differ from forecasts that concluding whether a strong surface duct existed was inherently inaccurate. Additionally, the measure failed to account for location variations from tidal flux, differential sea states that are frequently seen in channels, the fact that there are shear lines6 in some locations, and the occur rence of currents and eddies. Variations due to these characteristics have significant effects on surface duct ing. Because there is no evidence that surface ducting in and of itself causes MFAS overall effects to marine mammals to be greater, and because it is scientifically unknown to what extent the presence of surface ducting was significant in the known beaked whale stranding incidents, the RIMPAC After Action Report recommen ded omitting this separate measure for NDE II. Navy still considers significant surface ducting in the current NDE II measure #26 as one condition of an aggregate of many conditions (land masses surrounded by less than 35 nm and at least 10 nm in length, areas of rapid bathymetry change from 1000-6000 meters within short horizontal distance (5nm), and where multiple ships (greater than 3) are operating MFAS in the same area over at least 6 hours and less than 10 nm apart) that are to be considered in exercise planning. If those condi tions exist in the aggregate, dedicated aerial surveil lance will occur in the area ahead of the exercise par ticipants to detect any marine mammals that could be exposed to active SONAR. Additionally, normal safety zone requirements always apply and any detected mar ine mammals exhibiting unusual behaviors are required to be reported to the Officer in Tactical Command of the exercise who decides whether to delay, suspend or alter the exercise.
B. Low Visibility Specific Measure
53. This RIMPAC 2006 mitigation measure called for additional detection measures such as infrared (many Navy ships have stabilized infrared sensors that can de tect animals without any visible light because of the tem perature differences between the animal and the water) or enhanced passive acoustic detection in "low visibility conditions (i.e., whenever the entire safety zone cannot be effectively monitored due to the nighttime, high sea state, or other factors)." If detection of marine mam mals was still not possible out to the prescribed safety zone, the measure required Navy to power down sonar as if marine mammals were present in the zones they could not see. The operational necessity to preserve ASW proficiency in a variety of conditions, as discussed above in section V of this declaration, and the recog nition that prohibiting or limiting vessels from using MFAS during periods of restricted visibility violates in ternational navigational rules, increases navigational risk, and jeopardizes the safety of the vessel and crew compelled omission of this measure. The Navy is, in fact, capable of effectively monitoring a 1,000 meter safety zone at night using night vision goggles, infrared cameras, and passive acoustic monitoring. NDE II still requires personnel to use all available sensors and op tical systems (such as night vision goggles) to aid in de tection of marine mammals when employing MFAS so even in restricted visibility conditions, the Navy takes advantage of all available sensors.
C. Additional Measures during Chokepoint Exer cises or in Constricted Channels
54. A chokepoint is a strategic strait or canal. Al though there are over 200 straits around the world, only a handful around the world are considered to be "choke points," such as the Strait of Gibraltar, Panama Canal, Strait of Magellan, Strait of Malacca, Bosporus and Dar danelles, Strait of Hormuz, Suez Canal, and Bab el Man deb. While chokepoints are relatively few in number, significant quantities of international commerce and na val shipping move through these chokepoints making them strategically important to the United States be cause a single quiet diesel submarine can position itself in the chokepoint and effectively block access beyond that point. RIMPAC 2006 required extensive specific additional measures for chokepoint exercises. The pri mary similarity of these chokepoints is lengthy shore lines that restrict maneuverability. The longer and more narrow the passage, the more likely the chokepoint creates an area of restricted egress for marine mam mals. The waters off southern California have no actual constricted channels so a mitigation measure particular to chokepoints or constricted channels is not necessary in southern California waters, and even if it were, NDE II already considers them in measure #26.
D. Twelve nautical mile (nm) coastal exclusion in NDE I
55. In NDE I, the Navy agreed not to conduct exer cises within 12 nm of the coastline except for activities at San Clemente and PMRF (a range in Hawaii). This condition was arbitrary and was not based on any sci ence. For example, there is no scientific evidence that any set distance from the coast is more protective of marine mammals than any other distance. In post-exer cise analysis, the Navy also determined that limiting the exercise to outside the 12 nm distance prevented crew members from gaining critical experience in training in shallow waters, and training in littoral waters. Sound propagates differently in shallower water. In real world events, it is highly likely crew members would be work ing in these types of areas, and these are the types of areas where diesel-electric submarines would be opera ting. Without the critical training near shore that ASW exercises provide, crews will not have the experience needed to successfully operate SONAR in these types of waters, impacting vital military readiness. In any event, the Navy has planned the SOCAL exercises to occur within an exercise range (W-291), the eastern boundary of which is farther than 12 nm off the United States mainland coast.
E. 25 Kilometers of 200 meter Isobath
56. In RIMPAC 2006 only, MFAS training was pro hibited within 25 kilometers of the 200 meter isobath. There is no specific evidence that marine mammals are more or less likely to be present within the 200 meter isobath nor within 25 kilometers from the 200 meter iso bath. In RIMPAC 2006, this measure had no observable effect on the protection of marine mammals during the exercise, but its effect on ASW training was clear and significant because it effectively prohibited ASW train ing in the littorals, a vital realistic training area known to be a diesel submarine threat environment. Also, in the event that this measure was to be applied to SOCAL, and in NDE I it was not, this type of measure cannot be transferred from one part of the world to the other. The bathymetry off of the Hawaiian Islands where RIMPAC is held is much different than the bathymetry off of Southern California. For example, while there is a smooth and steep transition from the coast of the Hawai ian Islands to the deep seabed, the underwater bathy metry off southern California appears more like a moun tain range as opposed to a plain. Nautical charts do not contain a 200 meter isobath line that could be used as reference datum. If the Navy were required to comply with such a measure, it would greatly complicate navi gation, exercise planning, exercise implementation, and would prevent the Navy from using portions of its in strumented underwater range off San Clemente Island.
VIII. MEASURES NAVY WILL EMPLOY BEYOND NDE II
57. The Navy, in recognition of the Court's concern ov er mitigation measures employed during RIMPAC 2006 that are not a part of NDE II, will commit to implemen ting the following additional measures that, when added to the 29 previously-described mitigation measures, should be the full complement of measures for a tailored preliminary injunction for the remaining JTFEX/ COMPTUEX exercises.
58. The Navy will modify the NDE II safety zone pro visions so that Navy will power-down 6 dB if a marine mammal is detected within 1,000 meters (instead of yards) of the ship. The maximum received level before the power-down at 1,000 meters is 174.7 dB; with a 6 dB power-down at 500 meters is 174.4 dB; and with an additional 4 dB power down at 200 meters is 178.2 dB. These levels show that a marine mammal is never ex posed to a dB level greater than 178.2 dB from the time the first power-down is implemented at 1000 meters until the sonar is secured at 200 meters. The remaining safety zone provisions of NDE II will also be converted to meters from yards. This will increase the size of the safety zone by roughly 10%, increasing the area moni tored by the Navy by over 618,000 square yards. The increased safety zone applies at all times and in all en vironmental conditions: night, low visibility, and surface ducting. The provision provides additional protection to marine mammals, but does not unduly restrict Navy training.
59. For coastal operations, the Navy will commit to not operating sonar landward of the eastern boundary of the defined exercise range (W-291), which is the black line represented on the below map:
and is defined by the following coordinates:
LATITUDE NORTH
33° 14' 24"
33° 15' 00"
33° 12' 30"
32° 53' 00"
32° 36' 50"
32° 31' 30"
32° 28' 00"
LONGITUDE WEST 118° 28' 00"
118° 15' 00"
117° 58' 48"
117° 41' 43"
117° 32' 57"
117° 30' 03"
117° 30' 03"
60. This condition confirms that the training will occur in W-291, and that the entirety of the W-291 training area is located more than 12nm from the United States mainland coast.
61. The Navy will also commit that it will not operate MFAS within the currently defined limits of the Channel Islands National Marine Sanctuary, as the Sanctuary is not within the boundary of the defined exercise range (W-291).
62. There is only one island within the boundary of W- 291: San Clemente Island. For San Clemente Island, the Navy will commit to not operating sonar within an area, which is the black box represented on the above map, surrounding San Clemente Island, defined by the following coordinates:
LATITUDE NORTH LONGITUDE WEST
33° 07' 40" 118° 36' 15"
33° 00' 15" 118° 43' 00"
32° 46' 30" 118° 34' 30"
32° 53' 00" 117° 41' 43"
32° 40' 25" 118° 29' 00"
32° 40' 25" 118° 29' 00"
32° 47' 15" 118° 17' 15"
32° 50' 30" 118° 18' 15"
63. This condition confirms that MFA sonar training is located at least 5nm away from the western shore of San Clemente Island. In addition, this condition prevents MFA sonar training within 3nm of the island's other shores.
64. The Navy will post two dedicated marine mammal lookouts on all surface ships operating MFA sonar for all exercises.
65. The Navy will confirm the presence of at least 3 non-dedicated watchstanders on all surface ships oper ating MFA sonar for all exercises.
66. The Navy will notify all ASW-capable surface ships that non-dedicated watchstanders are required to look out for marine mammals during all exercises and that all sightings are to be reported.
67. The Navy will ensure aircraft operating during the exercises will monitor for marine mammals and that all sightings are reported.
68. The Navy will confirm that all personnel engaged in passive sonar will monitor for marine mammals and report detection. All aircraft flying low enough to rea sonably spot marine mammals will watch for marine mammals and report to ships in the vicinity for dissem ination and appropriate action.
69. For the Tanner and Cortez Banks: from July to September of 2008, in recognition of blue whale migra tion patterns, the Navy will conduct pre-exercise moni toring of the Tanner and Cortez Banks prior to the com mencement of a JTFEX or COMPTUEX. This moni toring will be one full hour or more of pre-exercise aerial monitoring. The Navy will consider relocating or de laying the exercise based on the result of the aerial mon itoring. The decision to relocate or delay would be made by Commander, Third Fleet, who will issue messages to exercise participants (1) advising them to be generally on the lookout for blue whale presence near Tanner and Cortez Banks; and (2) providing the results of the aerial monitoring to assist with (1).
70. During March 7-21, 2008 and April 15 to May 15, 2008, in recognition of gray whale off-shore migration patterns, the Navy will: conduct pre-exercise aerial monitoring in the area around the off-shore migration corridor during a JTFEX or COMPTUEX. Aerial moni toring would cover the portion of the gray whale migra tion path that passed through the exercise area. The Navy will consider relocating or delaying the exercise based on results of the aerial monitoring. The decision to relocate or delay would be made by Commander, Third Fleet, who will issue pre-exercise advisory messa ges to exercise participants, (1) advising them to be gen erally on the lookout for gray whale presence; and (2) providing the results of the aerial monitoring to assist with (1).
IX. CONCLUSION
71. The current marine mammal mitigation measures in NDE II are the result of both Navy and NMFS ap plying best available science to protect marine mammals while allowing realistic and effective Navy sonar train ing. The measures in section VIII provide additional protection to marine mammals, are offered in recog nition of the Court's expressed concerns, and also allow the Navy to continue to certify its Strike Groups. The Navy recommends the NDE II mitigation measures and the additional measures of section VIII as the appro priate mitigation measures for a tailored preliminary injunction.
Pursuant to 28 U.S.C. §1746, I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.
Executed on the 14 day of December, 2007 at New port, RI.
By: /s/ ILLEGIBLE
John M. Bird
Rear Admiral, U.S. Navy
1 The Battle Efficiency "E" is awarded annually to the small number of U.S. Navy ships, submarines, aviation and other units that win their battle efficiency competition. The criterion for the Battle Efficiency Award is the overall readiness of the command to carry out its assigned wartime tasks, and is based on a year-long evaluation. The competition for the award is, and has always been, keen. To win, a ship or unit must demonstrate the highest state of battle readiness.
2 Submarine Group SEVEN is comprised of submarines deployed to the Western Pacific, three submarines homeported in Guam, and a per manently forward deployed submarine tender. The deployed subma rines are rotated from their homeports in Bremerton, Washington, San Diego, California and Pearl Harbor, Hawaii for approximately six months. The tender is home ported out of Guam. Additionally, Sub marine Group SEVEN has a representative in Guam who liaisons for supply, logistics and repair support for all submarines assigned to Com mander Task Force SEVEN FOUR. Commander Submarine Force Seventh Fleet coordinates and controls submarine activities over a vast expanse covering nearly forty-eight percent of the earth's ocean sur face, ranging from the Western Pacific to the Indian Ocean. Comman der Task Force SEVEN FOUR as Seventh Fleet's submarine move ment advisory authority and operational commander directs all submar ine operations and mission tasking requirements in the Seventh Fleet area of responsibility. Commander Task Force SEVEN FOUR is also responsible for staff briefings, reprovisioning and repairs for those sub marines operating in Seventh Fleet.
3 Submarine Group SEVEN was activated as Commander Task Force ONE FIVE SEVEN on 15 October 1992 to direct all submarine operations and mission tasking requirements in the Central Command area of responsibility, including the Red Sea and Arabian Gulf. On 1 July 1995, upon establishment of U.S. Fifth Fleet in that same area of responsibility, Commander Task Force ONE FIVE SEVEN was redes ignated as Commander Task Force FIVE FOUR.
4 A COMPTUEX integrates the deploying personnel and assigned ships, submarines, and aircraft, into an effective fighting force through realistic training, integrating basic skills into a Strike Group team cap able of operating in a complicated threat-based scenario environment that simulates real world situations. Anticipated real world situations require the ability to identify and defeat multiple threats including sur face, air, and most importantly, submarines. A JTFEX is designed to evaluate Strike Group preparedness in a joint and coalition environ ment for deployed contingency and combat operations.
5 Mr. Donald Shregardus, DASN (I) & (E), U.S. Navy, Letter to the Editor of San Francisco Chronicle, September 12, 2007.
6 The Navy first installed SONAR on a destroyer in 1927.
7 Sea lines of communication refers to primary maritime routes between ports, used for trade, logistics and naval forces. One of the primary functions of the U.S. Navy is to conduct prompt and sustained combat operations at sea. This includes protecting vital sea lines of communication.
8 "Holding" a submarine "at risk" means to deny enemy submarines an offensive capability by maintaining the ability to destroy them, if and when required.
9 The Southern California Bight encompasses the body of water lying between Point Conception on the Santa Barbara County coast and a point just south of the United States-Mexico border.
10 Angliss, R. P., and R. B. Outlaw. 2007. Alaska marine mammal stock assessments, 2006. U.S. Dep. Commer., NOAA Tech. Memo. NMFSAFSC-168, 244 p; Bonnell, M.L. and M.D. Dailey. 1993. Marine Mammals. IN: pp 604-681M.D. Dailey, D.J. Reish, J.W. Anderson (eds). Ecology of the Southern California Bight: A Synthesis and Interpreta tion. University of California Press, Los Angeles; Mate, B. R. and J. Urban-Ramirez. 2003. A note on the route and speed of a gray whale on its northern migration from Mexico to central California, tracked by satellite-monitored radio tag. Journal of Cetacean Research Manage ment 5:155-157; Scammon, C.M. 1874. The Marine Mammals of the North-western Coast of North America, Described and Illustrated: To gether With An Account Of The American Whale-Fishery. Reprint in 1968 by Dover Publications, new York. 319 pp.
11 NCCOS. 2005. Biogeographic assessment of the Channel Islands National Marine Sanctuary: A Review of Boundary Expansion Con cepts for NOAA's national Marine Sanctuary Program. NOAA Nation al Centers for Coastal Ocean Science Biogeography team in cooperation with the National Marine Sanctuary Program. Silver Spring, MD. NOAA Technical Memorandum NOS NCCOS 21. 215 pp.
12 See note 2.
13 The Classified declaration of Mr. David Yoshihara and the unclas sified declaration of Captain Martin M. May, USN explain further the current national security concerns necessitating the continued use of MFAS SONAR in JTFEX and COMPTUEX training.
14 International Collision Regulations (72 COLREGS) as codified in 33 U.S.C. Sections 1601-1608.
15 Rule 5, COLREGS.
16 Active SONAR is a very effective means for detecting surface ves sels and their exact range from the transmitting vessel and is therefore effective at helping to prevent collisions at sea.
1 Mutual Interference is caused by a transmission of one ship sonar system being received unintentionally by another ships system.
2 The factors are currently included in aggregate as a specific measure to protect beaked whales under the current Marine Mammal Protection Act National Defense Exemption II, measure # 26.
3 Research later published in Finneran, J.J., D.A. Carder, C.E. Schlundt and S.H. Ridway, 2005. Temporary threshold shift in bottle nose dolphins (Tursiops truncates) exposed to mid-frequency tones. Journal of the Acoustical Society of America. 118:2696-2705.
4 "Interoperable" means that the commanders and units of all the forces must be able to communicate effectively, understand the capabil ities and limitations of each others' forces, and be able to execute the tactics and common doctrine quickly and precisely.
5 The transition layer between the mixed surface layer of the ocean and the deep water layer, where temperature changes rapidly with depth.
6 For example, the Hawaiian Islands present obstacles to the north easterly trade winds, creating calm regions in the leeward (downwind) side of the islands. Sharp horizontal shear lines usually separate the trade winds and heavy seas from the calm regions.
APPENDIX N
Unclassified upon removal of text of paragraphs 3, 6, 7, 8, 14, 21, 22, 30, 31, 32, 33, 34, 35, 38, 39, 40, 41, and 42.
SECRET
cover page is unclassified
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
Case No. 8:07-cv-00335-FMC (FMOx)
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., DEFENDANTS
Hearing Date: TBD
Time: TBD
Hon. Florence-Marie Cooper
U.S. District Judge
DECLARATION OF REAR ADMIRAL TED N. BRANCH, UNITED STATES NAVY, IN SUPPORT OF DEFENDANTS' MEMORANDUM REGARDING A TAILORED PRELIMINARY INJUNCTION
Unclassified upon removal of text of paragraphs 3, 6, 7, 8, 14, 21, 22, 30, 31, 32, 33, 34, 35, 38, 39, 40, 41, and 42.
SECRET
I, Rear Admiral Ted N. Branch, U.S. Navy, pursuant to 28 U.S.C. _ 1746 do hereby declare as follows:
I. INTRODUCTION AND QUALIFICATIONS.
1. [U] I am a 1979 graduate of the U. S. Naval Acade my, where I received a Bachelor of Science with a major in Oceanography. Subsequently, in 1992, I earned a master's degree from the Naval War College in National Security and Strategic Studies, and completed the Armed Forces Staff College. I have also completed Na vy Nuclear Power Training, and CAPSTONE, a joint Flag and General Officer professional development pro gram for senior military officers and government of ficials. The CAPSTONE course objective is to make these individuals more effective in planning and employ ing US forces in joint (i.e., involving two or more mili tary services) and combined (involving two or more coa lition countries) operations.
2. [U] Upon graduation from the U.S. Naval Academy, I reported to flight training and was designated a Naval Aviator in August 1981. My operational aviation tours of duty have included five Aviation Squadrons, with de ployments to the Atlantic, Mediterranean, Red Sea, In dian Ocean, Arabian Gulf, and Pacific Ocean. I've flown in combat over Grenada, Lebanon, Iraq, and Bosnia. I've been an instructor pilot in two squadrons and held various positions, including squadron Executive and Commanding Officer. I have performed a variety of du ties aboard surface ships, including: Assistant Naviga tor in the aircraft carrier USS FORRESTAL (CV 59); Executive Officer in the nuclear aircraft carrier USS JOHN C. STENNIS (CVN 74) (completing pre-deploy ment certification workups in the Southern California Operating Area (SOCAL) and Western Pacific and Per sian Gulf deployments); Commanding Officer in USS CORONADO (AGF 11) which, as the THIRD Fleet flag ship, participated in three major strike group certifica tion exercises; and most recently, Commanding Officer in the nuclear aircraft carrier USS NIMITZ (CVN 68). Under my command, NIMITZ won the Battle Efficiency and Safety Awards and the Golden Anchor for retention excellence, completed a Western Pacific and Arabian Gulf combat deployment, and two cycles of SOCAL training and certification. In total, I have completed pre-deployment certification work-ups (COMPTUEXs and JTFEXs) in conjunction with each of my eight de ployments.
3. [S] [REDACTED]
4. [U] I am the Director of Information, Plans, and Security assigned to the staff the Deputy Chief of Naval Operations for Information, Plans, and Strategy (OPNAV N3/N5). My specific responsibilities include providing Office of the Chief of Naval Operations (CNO) oversight of all global Naval operations and force as signments, Anti-terrorism and force protection, Defense Support to Civilian Authorities (DSCA), Fleet and Combatant Commander Operational Plans and Contin gency Plans, sourcing information and oversight of in dividual augmentee (individuals sent to assist in the Global War on Terror) and Navy Reserve mobilization processes, management of the Office of the CNO's crisis response and continuity of operations programs, and various other duties.
5. [U] The purpose of this declaration is to provide an overview of the missions and organization of the U.S. Navy's operational forces and to identify the U.S. na tional security and U.S. Navy strategic and operational impacts of failing to certify west coast strike groups for deployment. The statements made herein are based on my personal knowledge of Navy operations and on in formation made available to me as OPNAV Director for Information, Plans, and Security. I have also reviewed the 14 December 2007 Declaration of Rear Admiral John Bird. The information provided in this document does not exceed the SECRET classification. Any additional specificity might result in a higher classification of this declaration.
6. [S] [REDACTED]
7. [S] [REDACTED]
8. [S] [REDACTED]
II. THE NAVY'S STRATEGIC MISSION-THE CON TEXT OF RIPPLE EFFECTS
9. [U] Our challenge is to apply seapower in a manner that protects U.S. vital interests even as it promotes greater collective security, stability, and trust. As a maritime nation, we rely on our Navy's ability to operate freely at sea to guarantee access, sustain trade and commerce, and partner with other nations to ensure not only regional security but defense of our own homeland. We do this through physical presence at vital locations, including the Middle East and Western Pacific.
10. [U] The flexibility of naval forces allows them to be mission-tailored to meet a variety of global challenges. The ability to aggregate and disaggregate forces enhan ces our ability to group or disperse forces for maximum employment. To operate in this manner, naval forces must be unconstrained by the presence of an opposing submarine force or even the uncertainty of that pres ence.
11. [U] One of the principal threats is the large-and in creasing-number of diesel and nuclear powered sub marines, which give our potential adversaries an asym metric advantage over our deployed surfaces forces. Central to our ability to mitigate this increasing threat is our ASW capability, which is uniquely maritime in nature. The Navy is the only service that can address this threat and neutralize it. The art of detecting, tracking, and prosecuting advanced submarines requires a highly developed set of skills and robust training to integrate the efforts of the entire strike group. No simulation can completely replace the environmental and technical challenges or substitute for real-world ASW experience for managing multiple assets in a complex, integrated fashion. Any curtailment in our ability to train for this mission would increase risk to our capability to conduct forward presence, deterrence, and most importantly, sea control operations.
12. [U] Our ability to conduct our missions relies on more than just being there. Only through maintaining a credible ASW capability can we convince our potential adversaries that they cannot prevail against us. Any thing short of full ASW competency will convey the mes sage that we may be vulnerable, and may embolden our adversaries.
13. [U] Retaining sea control allows us to secure stra tegic access and maintain global freedom of action. The ability to operate freely at sea is one of the most impor tant enablers of national power: diplomatic, informa tion, military and economic. We cannot permit condi tions under which our maritime forces would be impeded from freedom of maneuver and freedom of access, nor can we permit an adversary to interrupt the global sup ply chain by attempting to block historic sea-lines of communication. We must be able to impose local sea control wherever necessary, ideally in concert with friends and allies, but by ourselves if we must.
14. [S] [REDACTED]
III. HOW THE NAVY ORGANIZES ITS FORCES
15. [U] As discussed above, the Navy deploys its forces in various ways to meet to the goals of the National Se curity Strategy. Among the key elements of Navy major force organization and deployment are the Carrier Strike Groups and Expeditionary Strike Groups (CSGs and ESGs).
CARRIER STRIKE GROUPS
16. [U] The U.S. Navy employs much of its strike-cap able force around the world in Carrier Strike Groups (CSGs), whose centerpiece is an aircraft carrier for which the CSG is named, e.g., the NIMITZ CSG is named after USS NIMITZ. Each CSG includes five sur face combatant ships, a submarine, and the nine aircraft squadrons on the aircraft carrier. "Surface combatants" arc designed to fight other ships, submarines, and air craft in conjunction with the CSG's own aircraft. Surface combatants include cruisers, destroyers, and frigates among others.
EXPEDITIONARY STRIKE GROUPS
17. [U] Expeditionary Strike Groups (ESGs) are typi cally comprised of three amphibious ships and three surface combatants. Amphibious ships are designed to carry Marines or other ground forces and to put those troops ashore in combat. The surface combatants pro vide defense to the ships and aircraft assigned to the Group and offensive power to support the troops ashore. ESGs arc named after the large amphibious ship that is the flagship of the group. For example, the TARAWA ESG, which is currently deployed, is named after the USS TARAWA.
IV. CAPACITY, OPERATIONAL AVAILABILITY AND LIMITATIONS.
18. [U] The Navy currently has eleven aircraft carriers, one of which is always undergoing a major maintenance period making it unavailable for operations, and one CSG based in a forward location away from the con tinental United States.
18.a. [U] USS CARL VINSON is currently in re-fueling overhaul in Newport News, Virginia. This overhaul will he completed in November 2009 at which time VINSON will return to the west coast.
18.b. [U] The USS KITTY HAWK, is forward deployed in Yokosuka, Japan, as part of the Navy's Forward De ployed Naval Force1 (FDNF).1
18.c. [U] Five nuclear powered aircraft carriers, the USS ENTERPRISE, USS THEODORE ROOSEVELT, USS HARRY S TRUMAN, USS DWIGHT D. EISEN HOWER, and USS GEORGE WASHINGTON are homeported on the east coast in Norfolk Virginia.
18.d. [U] Four nuclear powered aircraft carriers, USS RONALD REAGAN, USS JOHN C. STENNIS, USS NIMITZ, and USS ABRAHAM LINCOLN are home ported on the West coast in San Diego, California, and Bremetron and Everett, Washington. All west coast CSGs and ESGs conduct certification exercises in SO CAL.
19. [U] Aircraft carriers undergo a planned mainten ance program which enables them to remain operational to the end of their 50-year design service life. In addi tion to the carrier which is in long-term re-fueling over haul (VINSON), an average of three carriers typically is in short term maintenance periods. This leaves an av erage of seven aircraft carriers available and ready to be deployed around the world.
20. [U] Similarly, there are ten major amphibious as sault ships that serve as the centerpiece of the ESG.
20.a. [U] USS BONHOMME RICHARD, USS BOXER, USS PELELIU, and USS TARAWA are homeported in San Dicgo, CA
20.b. [U] USS BATAAN, USS IWO JIMA, USS KEAR SARGE ,USS NASSAU, and USS WASP are home ported in Norfolk, VA
20.c. [U] USS ESSEX is forward deployed in her home port of Sasebo, Japan as part of the FDNF.
21. [S] [REDACTED]
22. [S] [REDACTED]
V. THE DEPLOYMENT CYCLE: TRAINING AND MAINTENANCE
CSG AND ESG SCHEDULES
23. [U] Utilization of individual CSGs/ESGs is cyclical. Each cycle contains Training, Deployment and Mainten ance phases. The cycle begins when the ship completes maintenance and enters the training phase. Upon certi fication of combat readiness, the deployment phase be gins. The cycle is completed at the end of the subse quent maintenance phase following deployment. The notional cycle length is 32 months for a CSG, but actual cycles may vary based on maintenance requirements (addressed below) and such operational factors as the demand for forces as expressed by the Combatant Com manders; the numbcr of available operational carriers; thc availability of training facilities and ranges; and the availability of repair facilities.
24. [U] The Maintenance phase. A full spectrum of maintenance and modernization will be accomplished during various types of maintenance periods, referred to as "availabilities." Duration of a particular maintenance availability is a function of the overall plan for that ship. Maintenance availabilities range from 30 days to 39 months, depending on the type of maintenance. It is im portant to note that a planned maintenance regime is essential to enable these ships to reach their design ser vice lives and permit an opportunity to install tech nology upgrades to their warfighting capability. Some limited amount of schedule flexibility exists in the event a major operational effort is required (major combat operations), but deferred maintenance and moderni zation has to be performed later or the service life of the ship will be shortened.
25. [U] The Training phase which follows Maintenance, is further broken down into Basic, Integrated and Sus tainment phases. The Basic Training phase focuses on completion of unit level training (individual ship, sub marine, and aircraft squadron) requirements. During this phase individual ships, submarines, or aircraft squa drons focus on honing the skills of their Sailors and Mar ines into a cohesive warfighting team. They do this by learning how to efficiently operate their tactical systems against air, surface, and subsurface threats. Upon attainment of unit level proficiency in the Basic phase, the ship, aircraft squadron or submarine will then inte grate with other strike group units to conduct Inte grated Training phase. The goal of the Integrated Training phase is to synthesize individual units and staffs into aggregated, coordinated strike groups in a challenging, multi-dimensional, full-spectrum warfare operational environment. In short, the Integrated phase trains individual ships, squadrons and staffs how to function as one team, capable of conducting a wide var iety of missions in any place or environment. It is dur ing this phase that Composite Unit Training Exercise (COMPTUEX) and Joint Task Force Exercise (JTFEX) are conducted. After this Integrated Training phase, the Fleet Commander (on behalf of the CNO) is able to certify the CSG or ESG fully ready to cxecute its mis sions, and it can be deployed to its ultimate theater of operations. The Sustainment phase begins upon comple tion of the Integrated phase, continues through thc sche duled deployment and post-deployment periods and ends with the commencement of the Maintenance Phase. Training during this phase focuses on honing the war fighting proficiency and readiness that was attained at the completion of integrated training, and keeping the ships and aircraft crews proficient and ready to deploy as scheduled, or to respond to crises around the world. In general, up to 60% of the ship's crew are re-assigned during any 32 month deployment cycle (primarily during thc maintenance phase), resulting in a constant need to train to ensure sustained proficiency. As mentioned earlier, ASW skills are particularly fragile and perish able.
26. [U] Once fully trained and prepared, the CSG or ESG is dispatched on deployment to an overseas theater of operations, generally either to the Middle East reg ion, where it becomes an asset of the U.S. Central Com mand (CENTCOM) or the western Pacific Ocean area, falling under the responsibility of U.S. Pacific Command (PACOM). East coast CSGs also provide support to U.S. European Command (EUCOM) while transiting from the United States to the Middle East via the Medi terranean Sea and the Suez Canal. A normal deploy ment lasts at least six months from the time the carrier leaves its home port in the United States until returning home. While deployed, the CSC/ESC is an instrument of national policy through participation in combat opera tions (e.g., OPERATION IRAQI FREEDOM and OP ERATION ENDURING FREEDOM- AFGHANI STAN), through bilateral exercise participation with partner nations around the world, engagement with officials and civilians of other nations through port visits, and crisis response or humanitarian relief as sistance. During the entire deployment, these are the forces that guarantee the nation's security in the event of an unplanned conflict, keeping the fight far away from the United States shores and ensuring freedom of the seas. In these tasks, specific skill sets, including ASW, are absolutely crucial.
VI. EXPLORING ALTERNATIVES TO TRAINING ON THE WEST COAST
27. [U] If Navy is prohibited from utilizing its Southern California operating area and training ranges in a man ner that allows readiness certification training for west coast-based CSGs and ESGs, there is no suitable alter native location available to ships homeported on the west coast. Due to operational, maintenance and fleet support issues, it is not feasible for west coast-based ships to use the training facilities and ranges on the east coast to achieve certification.
28. [U] Adding west coast-based CSGs and ESGs to the schedule of the east coast training facilities and ranges would stretch these resources beyond their capability to support. These facilities are carefully scheduled months in advance in order to marshal resources and provide quality training to the CSGs and ESGs using them. Ad ditional CSGs and ESGs would add great complexity and overtax the capacity of east coast facilities.
29. [U] Sending extra ships to the east coast would place an unacceptable burden on the port infrastructure that would be required to support them. Pier space, already at a premium, would be overwhelmed and could require some ships to be berthed at ports in other states along the east coast that are not currently outfitted for CSG/ESG berthing. Maintenance facilities would be ov er capacity, slowing repairs and dramatically increasing costs.
30. [S] [REDACTED]
31. [S] [REDACTED]
VII. IMPACTS OF BEING UNABLE TO DEPLOY WEST COAST-BASED STRIKE GROUPS
32. [S] [REDACTED]
CSG IMPACT
33. [S] [REDACTED]
ESG IMPACTS
34. [S] [REDACTED]
THE EFFECT OF EXTENDING DEPLOYMENT SCHEDULES
35. [S] [REDACTED]
36. [U] Moreover, while they are at sea, our Sailors and Marines work extremely long hours. It is not at all un common for work days to extend to 16-20 hours a day, and while at sea during operational and training periods, the typical work week is seven days. Much of the work is physically demanding and potentially dangerous.
37. [U] The toll on equipment from long deployments is also very real. For example-and this has been par ticularly true since the U.S. engaged in combat oper ations in Afghanistan in late 2001-the aircraft deployed on each aircraft carrier have experienced an unprece dented pace of operations, with associated wear and tear on the airframes as well as on the complicated systems in each aircraft. The aircraft carrier contains its own aircraft maintenance and repair facility onboard, but at
some point the work necessary to keep planes flying be gins to exceed the capacity available at sea. Additional ly, given the corrosive effects of the salt-water marine environment, the longer equipment is continuously and unrelentingly exposed to that environment, the greater the likelihood that it will degrade or, ultimately, fail al together.
THE EFFECT OF COMPRESSING TRAINING SCHEDULES
38. [S] [REDACTED]
39. [S] [REDACTED]
THE EFFECT OF NOT BEING PRESENT IN CRITICAL AREAS
40. [S] [REDACTED]
41. [S] [REDACTED]
42. [S] [REDACTED]
CONCLUSION
43. [U] In the event the District Court issues an overly restrictive tailored preliminary injunction which pre vents Strike Groups' certification, the nation will suffer critical degradation of national security. Any restriction or disadvantage imposed on our ASW capability that impedes the U.S. Navy's ability to retain control of the sea or project naval forces may have grave consequen ces. Moreover, loss of sea control could result in nothing less than a breakdown of the global system, a significant change in our international standing, and an alteration in our established way of life. For all the reasons dis cussed above, there will be severe, long-term harm to U.S. national security and Navy operations if the Navy is unable to certify west coast-based strike groups to carry out its worldwide missions.
Pursuant to 28 U.S.C. _ 1746, I hereby declare un der penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.
Executed this 19th day of December, 2007, at Arlington, VA
By: /s/ ILLEGIBLE
TED N. BRANCH
1 The U.S. Navy and Marine Corps station units in Japan as the For ward Deployed Naval Forces (FDNF) for several reasons. The pres ence of U.S. Naval Forces permanently stationed in Japan promotes regional stability and deters aggression by North Korea, China, or oth er would-be hostile actors in the region. Should deterrence fail, our for ces are ready on station to conduct and support combat operations and fulfill our formal alliance obligations. Further, as the conflict against terror is a global effort, having our forces permanently deployed abroad ensures we are able to defend ourselves and our allies from terrorists worldwide and is a key element in homeland defense.
APPENDIX O
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
No. 8:07-cv-00335-FMC (FMOx)
NATURAL RESOURCES DEFENSE COUNCIL,
INC., ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., DEFENDANTS
Hearing Date: TBD
Time: TBD
Hon. Florence-Marie Cooper
U.S. District Judge
SUPPLEMENTAL DECLARATION OF REAR ADMIRAL JOHN M. BIRD IN SUPPORT OF DEFENDANTS' MEMORANDUM REGARDING A TAILORED PRELIMINARY INJUNCTION
I, Rear Admiral John M. Bird, U.S. Navy, do hereby de clare as follows:
I. BACKGROUND
1. My declaration of December 14, 2007, Declaration of Rear Admiral John M. Bird In Support of Defendants' Memorandum Regarding a Tailored Preliminary Injunc tion (Docket No. 67) (Bird Declaration I) contains my bi ography. This declaration addresses the impact of im plementing Plaintiffs' proposed training restrictions during Composite Training Unit Exercises (COMP TUEX) and Joint Task Force Exercises (JTFEX) in the southern California Operational Area (SOCAL OPA REA).
II. IMPACT OF ALL CUMULATIVE PLAINTIFFS' RE STRICTIONS
2. Figure 1 graphically represents the SOCAL OPA REA. Represented in green are the geographic areas in which mid-frequency active sonar (MFAS) would be al lowed under Plaintiffs' proposed training restrictions. Even in the green areas, Navy would face further re strictions, such as power-down restrictions in low visi bility and increased shut-down zones. Isolating MFAS to the southwestern area, as indicated in green, prevents required Strike Group training. Figure 2 shows the un derwater topography, known as bathymetry, of the SO CAL OPAREA. Crucial to Navy deployment prepara tions is an ability to train in what appears in Figure 2 as mountainous terrain. It is here that the SOCAL OPA REA terrain is the most similar to the "littoral" areas of the world, where Navy must operate MFAS (see para graph 19 of Bird Declaration I). This area of uneven bathymetry, essential to Navy Strike Group certifica tion, is where Plaintiffs' restrictions would prevent Navy from training in the environment most threatening to Navy's support of national objectives. The Navy trains to the greatest threat, which is in the littoral environ ment at this time. Training in the deep water environ ment of the SOCAL OPAREA does not provide the un ique challenges Navy faces in the littoral regions. Fur ther, Expeditionary Strike Groups, charged with trans porting Marines ashore and providing gunfire support for U.S. land forces while defending themselves from air, surface, and subsurface attacks, train primarily between San Clemente Island (SCI) and Camp Pendle ton (where the landing and training ranges to support Marine assaults are located). Strike Groups would not be able to conduct integrated (simultaneous air, sea, and land) warfare training under Plaintiffs' proposed re strictions. Therefore, Fleet evaluators would be not be able to assess the integrated capabilities of the Strike Groups before deployment.
3. Moving carriers and associated integrated training requirements farther out to sea precludes critical train ing of the Carrier Strike Groups. Operating in the unen cumbered green shaded area of Figure 1, carrier air craft would also be farther from land-based divert air fields in the event of emergency. Additionally, the in creased distances for opposing forces aircraft, ships and submarines to engage the carrier make realistic training untenable because of the time and distance to transit to the carrier's area; to the extent they even have the abil ity to do so. The cumulative effects of these restrictions will result in the Navy not being able to certify its Strike Groups in all warfare areas. The consequences to na tional security of inadequate predeployment training and certification are detailed in Rear Admiral Ted Branch's classified declaration.
4. The Southern California Anti-Submarine Warfare Range (SOAR), even if available under Plaintiffs' pro posed restrictions, cannot support all Strike Group training. The size is not adequate for carrier flight op erations during multiple launch and recoveries of air craft. Additionally, bisecting the northwest portion of SOAR is an air corridor used by Los Angeles Inter national airport. Navy use of the airspace around that corridor is restricted due to safety of flight concerns for both commercial and military aircraft. Expeditionary Strike Groups would not be able to conduct integrated warfare training at SOAR because of the reasons iden tified above in paragraph 2. The Navy and Marine Corps would lose the ability to do multi-dimensional warfare training, and capturing the end-to-end assess ment would be impossible if MFAS training in the lit torals were limited to SOAR.
III. ANALYSIS OF INDIVIDUAL TRAINING RESTRIC TIONS PROPOSED BY PLAINTIFFS
A. Exclusion of the Catalina Basin between SCI and San ta Catalina Island
5. Expeditionary Strike Groups conduct vital training between SCI and Camp Pendleton (where the landing and training ranges to support Marine assaults are lo cated). Forcing Navy out of this training area would prevent integrated training by bifurcating warfare re quirements. Navy would have to conduct MFAS many miles to the southwest in deep water and then conduct the amphibious assault at some later date. Navy would be prohibited from transiting around SCI to simulate a strait transit which enables us to train strike groups to deal with coastal defense cruise missiles (emitters on SCI), small boat swarm attack, submarines, and aircraft in restricted waters. The area described in this exclus ion is a vital staging area where small boat attacks are generated and can safely take place in numbers suf ficient to simulate the enemy. The multi-dimensional nature of coordinating enemy air, surface and subsur face attacks is lost, training is degraded, warfare com manders and sailors are left with an untested sense of security and training opportunities against anticipated real world threats are lost. In the past, Navy infre quently limited the parameters of exercises in this area, but it has done so for operational, not environmental, reasons.
B. 25 Nautical Mile Exclusion
6. SCI is Navy's west coast capstone training range. It has bombing ranges used by Navy aircraft and ships, an emergency airfield, and its nearby waters contain an in strumented range. Navy has conducted integrated com bat operations near shore in every decade since 1940. Plaintiffs' proposed restriction would keep Navy out of more than 1,000 square nautical miles of ocean surroun ding the island. This exclusion will also eliminate the ability to conduct ASW between SCI and Camp Pendle ton where amphibious assaults are staged by Strike Groups (see previous paragraphs).
7. This restriction also restricts ASW during Replen ishment-at-Sea (RAS) activities1, normally conducted just south of SCI for safety purposes due to reduced wave height. ASW during RAS is a critical training ev ent when ships conduct close maneuvers to transfer food, fuel, and ordnance. Submarine commanders take advantage of ships' restricted maneuvering during RAS to conduct attacks. Hence, Navy conducts opposed RAS training events using submarines simulating an adver sary. Passive sonar is not a viable means of submarine detection during RAS due to the close proximity of other ships; hence, the use of MFAS is synonymous with RAS operations in a submarine threat area.
C. Exclusion of Tanner and Cortez Banks
8. ASW training in shallow water is vitally important to the U.S. Navy since diesel submarines typically hide in that extremely noisy and hence complex marine environ ment. The Arabian Gulf, Strait of Malacca, Sea of Ja pan, and the Yellow Sea all contain water less than 200 meters deep. The Tanner and Cortez Banks enable shallow water training in SOCAL because of their cri tical bathymetric features similar to the areas listed ab ove. The Navy cannot conduct realistic training exercis es without training in and around Tanner and Cortez Banks.
D. Seamount Exclusions
9. Seamounts are used by submarines to hide or mask their presence, requiring the need to train in this com plex ocean environment. This is precisely the type of area needed by the Navy to train with MFAS. The Navy has not adopted large safety zones around sea mounts when operating with Australian forces.
E. Conducting Exercises to the Maximum Extent Prac ticable in Waters Deeper Than 1500 Meters
10. As seen in Figure 1, water that is deeper than 1500 m is the green area. Forcing the Navy out to the unen cumbered areas for integrated training, as discussed above, would place Strike Groups at unsafe distances from their emergency divert airfields, remove Navy from its instrumented range (SOAR), and prevent Sail ors from learning how to operate in areas of varied bathymetry (see Figure 2). In addition, it precludes the Expeditionary Strike Groups from conducting integra ted amphibious training around San Clemente Island.
F. Safety Zone-Two Kilometer Shutdown
11. Plaintiffs' proposed shutdown zone of two kilome ters contains more than 100 times the area of Navy's current 200 yard shutdown zone. This restriction ex ponentially increases the number of times that a ship will have to shut down active sonar, preventing realistic training and depriving ships of valuable submarine con tact time. Operational commanders would lose aware ness of the tactical situation through the constant stop ping and starting of MFAS leading to exercise event disruption. In RIMPAC 06, in one event, Navy shut down twice using a 200 meter shutdown range. Assum ing a uniform dispersion of marine mammals, the pro posed restriction would yield 200 shutdowns, rendering any exercise ineffective. The increase in required shut downs combined with the increased time to ensure this larger zone is clear of marine mammals will significantly harm the ability of Navy to train and certify Strike Groups. Also, a submarine could take advantage of the lapses in active sonar, and position itself for an attack. SOCAL JTFEXs have not applied de facto shutdown zones greater than 1000 yards. Contrary to Plaintiffs' assertions, the Navy has not adopted larger safety zones or shut down zones when operating with Australian for ces.
G. POWER-DOWN AT NIGHT AND IN LOW-VISIBIL ITY CONDITIONS (INCLUDING SEA STATES GREAT ER THAN 3)
12. The Beaufort Scale is an established means to des cribe sea state. The lowest sea state is 0 which is des cribed as "Calm (glassy)." The highest sea state is 12, which is described as with wave heights over 16 meters (52 feet). Sea state 3 is described with wave heights from 0.6 to 1 meters (about 2 to 3 feet). Analysis of rec ords over 100 years indicates that the sea state in the SOCAL OPAREA exceeds sea state 3 the majority of the time. For instance, in January 2007, conditions ex ceeded sea state 3 every day. The Navy cannot wait days, let alone months, for the sea to calm in order to conduct effective training. With a 6 dB power-down Navy would be forced to operate its sonar at only 25% of its normal power. Power reduction will eliminate realis tic training for crews as described in the Bird Declar ation I, paragraphs 25-29. Paragraphs 23, 24, and 53 of the Bird Declaration I further address nighttime and low-visibility conditions.
H. POWER-DOWN SONAR BY 6 DECIBELS IN SIGNIF ICANT SURFACE DUCTING CONDITIONS
13. Training in surface ducting conditions is critical to effective training because such conditions alter sonar transmissions and submarines take advantage of these sound distortions. See paragraph 52 of the Bird Declar ation I. Ocean conditions contributing to surface duct ing change frequently and surface ducts can be of short duration. The means to predict surface ducts in advance are ineffective. Surface ducting is also non-uniform and does not necessarily extend over a large geographic ar ea, making it difficult to determine where to reduce pow er and for how long. As a result, implementing this re striction would result in powering down when surface ducting was not actually present, thereby unreasonably preventing realistic training.
I. Reducing Sonar Use
14. Navy environmental planning uses estimated num bers of sonar use to model marine mammal effects based on review of historical data and an understanding of how ASW training events occur, which is in turn is based on operational requirements. Once an exercise starts, the operational commanders use MFAS as dictated by their assessment of the tactical situation, the exercise and their actions are not scripted. Sonar use is dependent on the ability of submarines to remain hidden from ex ercise participants, environmental conditions and how well the integrated ASW team works together. Reduc ing sonar use below the needs of the operational com mander would result in significantly degraded training.
J. Pre-Exercise Monitoring
15. Lookouts and watchstanders report everything they see on or in the water, day or night, 24/7, including mar ine mammals and sea turtles.
K. Passive Acoustic Monitoring
16. NDE II requires passive acoustic monitoring by ex ercise participant sensors. Technology does not exist on the instrumented range to provide bearings and ranges of marine mammals to exercise participants.
L. Near-Shore Monitoring
17. The extra monitoring associated with choke-point exercises was to mitigate the "Bahamas' factors," which are carefully addressed in NDE II. There is no choke- point between San Clemente and Santa Catalina islands. All "choke-points" are notional. See Bird Declaration I, paragraph 54.
IV. SUMMARY
18. I have read Plaintiffs' brief and find their claim that Navy can effectively train for war under the above re strictions to be entirely without merit. Plaintiffs' train ing restrictions will result in the inability of the Navy to train its Strike Groups to the level that the Navy has determined is required for deployment. Navy's mitiga tion measures as outlined in NDE II, combined with the additional measures Navy offered for the tailored in junction, meet national security requirements while pro tecting marine mammals
Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.
Executed on this 20 day of December, 2007, at Pearl Harbor, Hawaii.
By: /s/ ILLEGIBLE
JOHN M. BIRD
Rear Admiral, U.S. NAVY
1 U.S. Navy vessels transfer fuel, food, ordnance, and other stores across cables rigged between two moving vessels.
APPENDIX P
Unclassified upon removal of text of paragraphs 11, 14, through 18, 22 through 25.
SECRET
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
Case No. 8:07-cv-00335-FMC (FMOx)
NATURAL RESOURCES DEFENSE COUNCIL, INC.,
ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., DEFENDANTS
Hearing Date: TBD
Time: TBD
Hon. Florence-Marie Cooper
U.S. District Judge
DECLARATION OF ADMIRAL GARY ROUGHEAD,
UNITED STATES NAVY, IN SUPPORT OF DEFENDANTS' MOTION FOR A STAY
PENDING APPEAL
Unclassified upon removal of text of paragraphs 11, 14, through 18, 22 through 25.
SECRET
I, Admiral Gary Roughead, U.S. Navy, Chief of Na val Operations, do hereby declare as follows pursuant to 28 U.S.C. § 1746:
BACKGROUND
1. [U] I am a 1973 graduate of the U.S. Naval Acade my, where I received a Bachelor of Science degree with a major in Foreign Affairs.
2. [U] I am a designated Surface Warfare Officer in the United States Navy. I have served in seven U.S. Navy warships: Gunnery Assistant onboard USS JOSE PHUS DANIELS (DLG 27); Engineering Officer in USS OBANNON (DD 987); Executive Officer in the patrol gunboats USS DOUGLAS (PG 100) and USS TACOMA (PG 92); Executive Officer in USS SPRU ANCE (DD 963); and Commanding Officer of USS BAR RY (DDG 52) and USS PORT ROYAL (CG 73). I am the first naval officer to have commanded first a destroyer and then a cruiser outfitted with the Navy's most ad vanced and comprehensive detecting, tracking and mis sile weapon system (Aegis).
3. [U] Ashore, I have held numerous staff positions, in cluding: Aide and Flag Lieutenant to Commander, Na val Surface Forces, U.S. Atlantic Fleet; Resource Spon sor and Surface Warfare Analyst within the offices of both the Chief of Naval Operations and the Secretary of the Navy; Administrative Assistant to the Secretary of the Navy; and Executive Assistant to the Commander, U.S. Pacific Command (joint tour).
4. [U] I was promoted to Flag Rank in October 1997. Since that time, I have served in the following positions: Commandant of the U.S. Naval Academy; Commander, Cruiser Destroyer Group TWO; Chief of Legislative Af fairs; Commander, SECOND Fleet and Striking Fleet Atlantic (joint tour); Deputy Commander, U.S. Pacific Command; Commander, U.S. Pacific Fleet and Com mander, Joint Task Force 519 (joint tour); and Com mander, U.S. Fleet Forces Command. On September 29, 2007, I assumed the position of the Chief of Naval Operations.
5. [U] I have over three decades of experience training with and employing mid-frequency active (MFA) sonar. As Executive and Commanding Officer of several ships, I have extensive experience in deploying MFA sonar in individual unit and strike group anti-submarine warfare (ASW) exercises and operations. As Commander, Des troyer Group TWO, I commanded the USS GEORGE WASHINGTON (CVN 73) Strike Group, actively train ing the integrated strike group in ASW proficiencies and then employing MFA sonar in full-spectrum operations during deployment to the Arabian Gulf in support of United Nations' mandates regarding Iraq. As the Com mander of SECOND FLEET, I was directly responsible for the training and certification of all East Coast car rier and expeditionary strike groups, specifically to in clude certification in ASW capabilities. As Deputy Com mander, U.S. Pacific Command, I helped oversee the re ceipt and deployment of certified Navy carrier and ex peditionary strike groups to meet requirements of the National Command Authority throughout the Pacific and Indian Oceans. As Commander, U.S. Pacific Fleet, I was the Naval Component Commander for U.S. Pacific Command, responsible for delivering trained and certi fied naval forces, specifically those strike groups trained and certified in the Southern California Operating Area (SOCAL OPAREA) and, as Commander, Joint Task Force 519, responsible for carrying out U.S. Navy obli gations pursuant to the Taiwan Relations Act. As Com mander, U.S. Fleet Forces Command, I served as the primary advocate for personnel, training, requirements, maintenance, and operational issues for the combined Fleet, reporting directly to the Chief of Naval Opera tions.
6. [U] As the Chief of Naval Operations, by Title 10, United States Code and U.S. Navy Regulations, I am specifically responsible to organize, train, equip, prepare and maintain the readiness of Navy forces, including those for assignment to unified or specified commands, for the performance of military missions as directed by the President, the Secretary of Defense, or the Chair man of the Joint Chiefs of Staff. 10 U.S.C. § 5031, et. seq.; 32 C.F.R. _ 700.405(c)(1). While I have delegated to certain subordinate commanders the authority to certify strike groups for deployment, I am ultimately responsible for and oversee the certification and deliv ery of trained naval forces to meet any and all national security requirements. I am a member of the Joint Chiefs of Staff as the Navy's uniformed advisor to the President, National Security Council, Homeland Secur ity Council, and the Secretary of Defense. 10 U.S.C. _ 151.
7. [U] This declaration addresses the impact of imple menting the training restrictions imposed on Composite Training Unit Exercises (COMPTUEX) and Joint Task Force Training Exercises (JTFEX) in the SOCAL OPAREA pursuant to the district court's Order Issuing Preliminary Injunction of January 3, 2008 [hereinafter "Order"].
II. STRIKE GROUP TRAINING AND CERTIFICATION
8. [U] Strike group training consists of Basic and Inte grated Phases. The Basic Phase is training at the indi vidual ship and aircraft level. The Integrated Phase brings the entire strike group together to perform as a team during COMPTUEX and JTFEX exercises. The COMPTUEX and JTFEX are indispensable exercises, as they are the only opportunity for the strike group's 6,000-plus Sailors and Marines to come together prior to deployment for integrated combat training carefully planned and structured to meet real world threats. In tegration is vital, as the real value of these exercises is in bringing the air, surface and sub-surface assets to gether, and training them concurrently in a myriad of different mission areas. It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impacted-for example, if effective sonar training were not possible- the training value of the other elements would also be degraded because-as with all tasks-it is easier to con duct fewer simultaneously than it is to conduct many. COMPTUEX is a 21 day at-sea exercise that includes a schedule of events and three integrated battle problems. COMPTUEX is scheduled prior to JTFEX in the Fleet Response Training Plan cycle, and uses a "crawl- walk-run" training methodology because it is the first time the strike group comes together as a composite fighting team.
9. [U] A JTFEX is an advanced, free-play, scenario- driven war-game, testing the strike group against dedi cated opposition forces. It picks up where COMPTUEX leaves off, and uses a "run-sprint" training methodolo gy. The JTFEX is the "final exam" or "graduation ev ent" due to its operational tempo, difficulty and length. The JTFEX is the culminating training event that deter mines strike group certification. Whether to certify, and in what war-fighting disciplines, is a military decision based upon objective and subjective assessments of mili tary proficiencies demonstrated in realistic scenarios that replicate current and projected threats.
10. [U] Strike group training is a discrete event within the Fleet Response Plan schedule. All strike group schedules are coordinated to optimize the Navy's limited assets and provide trained and ready forces to meet Combatant Commander requirements. The Fleet Res ponse Plan schedule is interlocking and interdependent. Each strike group must perform the required training during the time allotted. The United States Navy has only eleven carriers, of which one will always be in long- term nuclear refueling. With a tight interlocking sched ule to rotate the remaining ten carrier strike groups through maintenance, training and deployment cycles, the inability to certify just one strike group during the planned training period creates a negative cascading ef fect on my ability to provide combat ready forces to Combatant Commanders who employ them. Due to the interlocking elements of a particular Strike Group's training cycle, extraneous restrictions seriously jeopar dize the Navy's ability to produce combat ready forces to Combatant Commanders. In this context, marine mammal mitigation measures must be compatible with realistic strike group training under all conditions and at all times. Anything less will result in uncertainty of scheduling, and present an unacceptable risk to strike group certification and to providing naval forces to Com batant Commanders as demanded.
III. IMPACT OF PRELIMINARY INJUNCTION TRAIN ING RESTRICTIONS
11. [S] [REDACTED]
12. [U] The Order requires the Navy cease all use of MFA sonar, whether from ships or aircraft, when mar ine mammals are spotted within 2,200 yards. This 2,200 yard "shut-down" zone is markedly more onerous than the 1,000 yard "safety zone" of NDE II, which has a "shut-down" requirement at 200 yards. The Order's 2,200 yard "shut down" zone will result in increased in terruptions to training exercises, and introduce artificial constraints into certification exercises designed to stress every aspect of strike group performance. The timing of a shut- down (or power-down) can be critical as the ASW component of an exercise can proceed over the course of several days. (This is particularly important given that a JTFEX usually lasts less than two weeks.) The exer cises are scored as a successful "attack" when either the surface ship or the submarine maneuvers to a location that allows for the training "kill." It may take days for the scenario to develop to the point where a ship or sub marine makes a successful attack. Thus, any shut-down during the critical phase of sonar tracking can result in the loss of multiple days' worth of training, and negate the effectiveness of the entire exercise. The 2,200 yard shut-down provision vastly increases the risk of negat ing training effectiveness, preventing strike group cer tification, and disrupting carefully orchestrated deploy ment plans to meet world-wide operational commit ments.
13. [U] From July 2006 to September 2007, eight COMPTUEX or JTFEX exercises were conducted in the SOCAL OPAREA. For those exercises, the participat ing vessels reported 336 sightings of approximately 4,300 marine mammals. (Sightings were variable by ex ercise, ranging from 73 sightings of 1,225 marine mam mals in one exercise to 11 sightings of 230 marine mam mals in another.) Of the total sightings, 57 occurred when sonar was employed. Of those, 7 sightings oc curred within 200 yards, and 38 occurred within 2,200 yards of the transmitting vessel. Increasing the shut- down distance from 200 to 2200 yards, therefore, in creases the requirement to shut down sonar five-fold based upon data from the eight SOCAL exercises (38 shut-downs is a five-fold increase over 7 shut-downs). By making a shut-down five times more likely, the 2,200 yard "shut down" zone greatly increases the risk that the value of the exercise will be lost and certification jeopardized. (The five-fold increase is only an average. For any particular exercise the increase in shutdowns may be greater.) The risk that this potential loss of so nar training represents, when also considering that any shut-down at a critical moment can negate days of ASW effort, presents training restrictions that will not reli ably allow for certification and deployment of naval for ces in time and in accord with national security require ments.
14. [S] [REDACTED]
15. [S] [REDACTED]
16. [S] [REDACTED]
17. [S] [REDACTED]
18. [S] [REDACTED]
19. [U] The Order's additional restrictions are overly broad and present other difficulties. For example, the 2,200 yard "shut-down" zone provision applies not only to ships' sonar, but also to aircraft-launched sonobuoys and active dipping sonar. Helicopter active dipping so nar transmits at a different power (dB) level than ves sel-based sonar: 217dB vice 235dB, which is less than 2% of the power of the ship's sonar. Aircraft-based so nobuoys operate at an even lower power level: 202dB. It is not appropriate to employ an identical "shut-down" zone for these three systems when two of the three transmit at significantly reduced dB levels.
20. [U] The Order also does not account for marine mammal "bow riders." Marine mammals (dolphins and porpoises primarily) often "play" by riding on the bow-wave of a ship, purposefully swimming close to the ship. This occurs even during active MFA sonar transmissions (NDE II makes specific provision for bow riding marine mammals), and the combination of the two events demonstrate that these mammals are not ad versely affected by the use of sonar. The Order, howev er, would have a ship cease all sonar transmissions dur ing "bow rider" events. A dolphin can keep pace with a Navy ship, even at cruising speed. The Order, there fore, would place vital MFA sonar training at the whim of a playful marine mammal should the mammal chose to continue to ride the bow-wave of the ship.
21. [U] Finally, the Order requires aerial monitoring by a dedicated aircraft for the duration of an MFA sonar exercise, without consideration for safety, maintenance, or the efficiency of monitoring techniques. During ma jor exercises, strike groups have many aircraft with trained aircrews whose primary responsibility is to search the sea surface for periscopes (small in size when compared to marine mammal) or any other signs of a submarine. These focused observers, and the trained lookouts and watchstanders on strike group ships, are far more likely to spot marine mammals than a single, dedicated aircraft. Further, a dedicated aircraft would present a flight safety hazard as it traverses the exer cise area, adding to the already high activity demands of strike group mission aircrews and controllers.
IV. CONCLUSION
22. [S] [REDACTED]
23. [S] [REDACTED]
24. [S] [REDACTED]
25. [S] [REDACTED]
Executed this 10th day of January, 2008, at Washington, D.C.
By: /s/ ILLEGIBLE
FIGURE 1
CLASSIFIED-SECRET
[REDACTED]
FIGURE 2
CLASSIFIED-SECRET
[REDACTED]
APPENDIX Q
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
No. 8:07-cv-00335-FMC (FMOx)
NATURAL RESOURCES DEFENSE COUNCIL,
INC., ET AL., PLAINTIFFS
v.
DONALD C. WINTER, SECRETARY OF THE NAVY,
ET AL., DEFENDANTS
Hearing Date: TBD
Time: TBD
Hon. Florence-Marie Cooper
U.S. District Judge
DECLARATION OF VICE ADMIRAL SAMUEL J. LOCKLEAR III, U.S. NAVY, IN SUPPORT OF DEFENDANTS' EX PARTE APPLICATION FOR STAY PENDING APPEAL
I, Vice Admiral Samuel J. Locklear III, U.S. Navy, Commander of the U.S. THIRD Fleet, do hereby de clare as follows:
PROFESSIONAL BACKGROUND AND
RESPONSIBILITIES
1. I am Commander of the U.S. THIRD Fleet.
2. As THIRD Fleet Commander, I am responsible for all naval operations in the Eastern Pacific and the over sight of the integrated training and deployment certi fication for all West Coast naval forces, to include Car rier and Expeditionary Strike Groups.
3. The purpose of this declaration is to provide the Court with important information on the impact that its Modified Preliminary Injunction will have on the ability of U.S. THIRD Fleet to complete its mission of provid ing naval forces, particularly strike groups, prepared to deploy to meet the requirements of the combatant com manders. The statements made herein are based on my personal knowledge of Navy operations and on informa tion made available to me as Commander, U.S. THIRD Fleet.
4. I am a 1977 graduate of the United States Naval Academy where I earned a Bachelor of Science degree in Operations Analysis. After initial Surface Warfare training, I served in the destroyer WILLIAM V PRATT (DDG-44) as missile Fire Control Officer and Main Pro pulsion Assistant. After selection for training and ser vice in the Navy Nuclear Propulsion program, I subse quently served as the Electrical Principal Assistant in the aircraft carrier CARL VINSON (CVN-70).
5. Graduating with "Top Gun" honors from the Sur face Warfare Department Head School, I then served as Operations Officer and Engineer in the destroyer CAL LAGHAN (DDG-994). After completing an Executive Officer tour in the cruiser TRUXTUN (CGN-35), I com manded the Spruance-class destroyer LEFTWICH (DD-984). I subsequently commanded DESTROYER SQUADRON 2, where I was responsible for six destroy ers and frigates and served as the Anti-Submarine War fare Commander within the EISENHOWER Carrier Battle Group. In October 2002, I assumed command of NIMITZ Carrier Strike Group, deploying to the Arabian Gulf in 2003 in direct support of Operation Iraqi Free dom and Operation Enduring Freedom. In May 2007, I assumed command of U.S. THIRD Fleet in San Diego, responsible for oversight on all Navy operations, inte grated training, and certification of strike groups in the Eastern Pacific.
6. Ashore, I have served as a Company Officer at the United States Naval Academy and later as the 78th Commandant of Midshipmen at the Naval Academy. In Washington, D.C., I have served in the Joint Staff, as Chief of the Regional Engagement and Presence Branch in the Strategic Plans and Policy Directorate. Within OPNAV, I have served as Executive Assistant to the Vice Chief of Naval Operations, Deputy Director for Re quirements in the OPNAV Assessment Division (N81D), Deputy Director for Surface Warfare (N76B), Director of the Assessment Division (N81) and Director of the Programming Division (N80).
7. I am a 1992 graduate of the Industrial College of the Armed Forces, hold a master's degree in Public Ad ministration from George Washington University, and attended the Senior Officials in National Security course at the Maxwell School of Syracuse University.
8. I have interacted with all aspects of naval opera tions from the tactical level (during my shipboard as signments and as a Destroyer Squadron and Strike Group Commander), to the operational level (as a Fleet Commander and in positions on the Joint Staff), to stra tegic level decision making as a member of the Chief of Naval Operations staff. Accordingly, and in the specific context of this litigation, I understand how sonar is em ployed and deployed, as well as its relevance to our glo bal national security considerations.
9. Based on my experience at sea, both as a surface warfare officer, Commanding Officer of warships that employ sonar, and as Commander, U.S.THIRD Fleet re sponsible for the training that is conducted in the South ern California Operating Areas-including the exercises in question-my opinion is that imposing a 2200-yard shutdown zone will have crippling implications on Na vy's ability to conduct realistic pre-deployment ASW training employing MFA sonar. I am aware that Com manding Officers have shut down sonar in the past, be cause of the presence of marine mammals, even when not required to do so by law or higher authority. I must caution, however, that their actions do not mean that re quiring mandatory shutdowns at similar ranges would have a negligible impact on training effectiveness. Based on my experience, information made available to me in official records and reports, including the exhibits attached to this declaration,1 and the performance re views that I have received after major training exercis es, I know that a 2,200 yard shutdown zone will present a severe impact to training and certification of readiness to perform realistic ASW.
10. There are several significant reasons why ships' Commanding Officers may shut down sonar before being legally required as a result of the presence of marine mammals. First, the Navy places great emphasis upon environmental stewardship, a point not lost on our Com manding Officers. There is no Commanding Officer of a destroyer, cruiser, or frigate who does not understand the importance of avoiding harm to marine mammals. Commanding Officers have repeatedly been advised of the need to comply with prescribed mitigation measures, including specifically the 1,000 yard safety zone. Com manding Officers have not been advised that they cannot shut down sonar until a marine mammal is sighted just beyond the shutdown zone. Second, Commanding Offi cers have the discretion to take action whenever possi ble, consistent with the tactical situation and the level of warfighting risk they find themselves in.
11. It is critical to understand, however, that all of these discretionary decisions by a Commanding Officer are ultimately influenced by the tactical situation, some thing they are charged with understanding at all times. The same Commanding Officer who might order a shutdown of sonar beyond that required by law or regu lation when not in contact with a submarine-or when he determines that the submarine threat in the area for which he is responsible is minimal-would not shut down sonar until legally required to do so if in contact with a submarine, or in a position where imminent contact with a submarine was anticipated. Commanding Officers could also consider whether other MFAS-capable ships of the strike group (or a helicopter's dipping sonar or a pattern of sonobuoys) have contact on the submarine, which could mitigate the operational impact of MFAS shutdown. Because the Modified Temporary Injunction applies to shipboard sonar, dipping sonar, and sonobuo ys alike (despite the vast differences in source levels), removing the ASW commander's option in appropriate circumstances to maintain contact with a submarine us ing helicopter dipping sonar or sonobuoys eliminates a tool to mitigate the impacts of the surface ship shut down. Helicopter dipping sonars and sonobuoys are val uable antisubmarine warfare tools in their own right because they can be deployed faster than a ship can move, but under NDE II, they also provided options to an ASW commander when ship sonar is restricted. Anti submarine warfare is a science steeped in art, a frus tratingly difficult warfare area in which tremendous ef fort goes into gaining and maintaining contact on the submarine, often at ranges less than 2200 yards. No Commanding Officer surrenders contact on a submarine unless ordered to do so; the stakes are too high. In a tactical situation where a Commanding Officer is in con tact with a submarine, or contact is imminent, or the risk to the aircraft carrier or other high value unit (HVU) is elevated, the CO will be expected to continue to use ac tive sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise. In these critical tactical situations, shutdown-even for a few minutes-is destructive to the operational effective ness of the exercise, just as it would be potentially fatal in combat. Just a few minutes of lost tactical momentum will destroy much of the effectiveness of an exercise if the tactical situation becomes driven by artificial con straints (i.e., marine mammal induced MFAS shutdown) rather than the exercise events to that point, and the tactics and skill of the participants. A single lost contact in an exercise scenario, as it would be in combat, crip ples certification for the units involved. It may take days to get to the pivotal attack in antisubmarine war fare, but only minutes to confound the results upon which certification is based. Success in ASW relies upon difficult and perishable skills that must be honed and realistically tested, to meet the operational challenges we face in the real world today. For these reasons, I believe that all the discretionary shutdowns likely oc curred during tactically insignificant times.
12. Under the current court order, a 2200-yard shut down zone would be mandatory irrespective of the tac tical situation, and would remove a Commanding Offi cer's ability to use sonar to its fullest capability. There is a big difference between one or two commanding offi cers voluntarily shutting down at tactically insignificant times during any given exercise and removing every sin gle commanding officer's discretion, forcing a shutdown at 2200 yards all the time. This operational restraint would lead to many more mandatory MFAS shutdowns than the current 200 yard shutdown zone, and result in a significant, adverse impact to realistic training. Ad miral Roughead's classified declaration describes in de tail the adverse impact to training caused by a 2200-yard shutdown zone. In addition, Navy has not developed a de facto 4,000-yard shutdown zone. In fact, during the COMPTUEX completed in November 2007, the Sea Combat Commander aboard the aircraft carrier, who controls the antisubmarine escort, took specific action to eliminate unnecessary shutdowns out of a concern that precious antisubmarine training was being lost.
13. A Commanding Officer at sea has great authority and the discretion to take mitigation actions beyond those required by law and regulation if supported by the tactical situation; however, we must not sacrifice our li mited ability to conduct realistic, integrated ASW train ing prior to strike group deployment. Without appro priate relief, the mandatory 2200-yard shutdown will significantly impact COMPTUEX and JTFEX inte grated ASW training and jeopardize the training and readiness of U.S. THIRD Fleet CSG/ESGs. These strike groups will then lack critically important skills to meet the full demands of the planned operational environment for real world missions.
Pursuant to 28 U.S.C. § 1746, I hereby declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information, and belief.
Executed this 13th day of January, 2008, at San Diego, California
By: /s/ ILLEGIBLE
SAMUEL J. LOCKLEAR III
COMMANDER, U.S. NAVY
[EXECUTED THIS 13TH DAY OF JANUARY 2008]
1 Based upon reasonable inquiry, attached as Exhibit 1 is a true and correct copy of excerpts of six After Action Reports prepared by the Navy for the following exercises: USS Boxer ESG-5 COMPTUEX 06- 03 and JTFEX 06-04; USS Stennis CSG COMPTUEX 06-04; USS Sten nis CSG JTFEX 07-01; USS Nimitz CSG COMPTUEX 07-01; Com bined After Action Report for COMPTUEX 07-02, JTFEX 07-03, and JTFEX 07-05; and the January 4, 2008 preliminary draft version of the ARR for COMPTUEX 07-7. The Draft AAR is the most recent report available for COMPTUEX 07-7. Attached as Exhibits 2 through 7 are true and correct, complete copies of the above-described six After Ac tion Reports. Because some reports cover more than one exercise, these six reports cover eight exercises with monitoring data.
APPENDIX R
1. Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq., provides in pertinent part:
§ 1362 Definitions
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(6) The term "marine mammal" means any mammal which (A) is morphologically adapted to the marine envi ronment (including sea otters and members of the or ders Sirenia, Pinnipedia and Cetacea), or (B) primarily inhabits the marine environment (such as the polar bear); and, for the purposes of this chapter, includes any part of any such marine mammal, including its raw, dressed, or dyed fur or skin.
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(10) The term "person" includes (A) any private person or entity, and (B) any officer, employee, agent, department, or instrumentality of the Federal Govern ment, of any State or political subdivision thereof, or of any foreign government.
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(13) The term "take" means to harass, hunt, cap ture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.
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(18)(A) * * * *
(B) In the case of a military readiness activity (as defined in section 315(f) of Public Law 107-314; 16 U.S.C. 703 note) or a scientific research activity conducted by or on behalf of the Federal Govern ment consistent with section 1374(c)(3) of this title, the term "harassment" means-
(i) any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or
(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, surfacing, nursing, breeding, feeding, or shelter ing, to a point where such behavioral patterns are abandoned or significantly altered.
(C) The term "Level A harassment" means ha rassment described in subparagraph (A)(i) or, in the case of a military readiness activity or scientific re search activity described in subparagraph (B), ha rassment described in subparagraph (B)(i).
(D) The term "Level B harassment" means ha rassment described in subparagraph (A)(ii) or, in the case of a military readiness activity or scientific re search activity described in subparagraph (B), ha rassment described in subparagraph (B)(ii).
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§ 1371. Moratorium on taking and importing marine mammals and marine mammal products
(a) Imposition; exceptions
There shall be a moratorium on the taking and im portation of marine mammals and marine mammal prod ucts, commencing on the effective date of this chapter, during which time no permit may be issued for the tak ing of any marine mammal and no marine mammal or marine mammal product may be imported into the United States except in the following cases:
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(f) Exemption of actions necessary for national defense
(1) The Secretary of Defense, after conferring with the Secretary of Commerce, the Secretary of the Inte rior, or both, as appropriate, may exempt any action or category of actions undertaken by the Department of Defense or its components from compliance with any requirement of this chapter, if the Secretary determines that it is necessary for national defense.
(2) An exemption granted under this subsection-
(A) subject to subparagraph (B), shall be effec tive for a period specified by the Secretary of De fense; and
(B) shall not be effective for more than 2 years.
(3)(A) The Secretary of Defense may issue addi tional exemptions under this subsection for the same action or category of actions, after-
(i) conferring with the Secretary of Com merce, the Secretary of the Interior, or both as appropriate; and
(ii) making a new determination that the addi tional exemption is necessary for national de fense.
(B) Each additional exemption under this para graph shall be effective for a period specified by the Secretary of Defense, of not more than 2 years.
(4) Not later than 30 days after issuing an ex emption under paragraph (1) or an additional exemp tion under paragraph (3), the Secretary of Defense shall submit to the Committee on Armed Services of the House of Representatives and the Committee on Armed Services of the Senate notice describing the exemption and the reasons therefor. The notice may be provided in classified form if the Secretary of De fense determines that use of the classified form is necessary for reasons of national security.
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§ 1372. Prohibitions
(a) Taking
Except as provided in sections 1371, 1373, 1374, 1379, 1381, 1383, and 1383a, and 1387 of this title and sub chapter V of this chapter, it is unlawful-
(1) for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas;
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2. Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq., provides in pertinent part:
§ 1456. Coordination and cooperation
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(c) Consistency of Federal activities with State man agement programs; Presidential exemption; certif ication
(1)(A) Each Federal agency activity within or out side the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable pol icies of approved State management programs. A Federal agency activity shall be subject to this para graph unless it is subject to paragraph (2) or (3).
(B) After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of Title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with subpara graph (A), and certification by the Secretary that me diation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States. No such ex emption shall be granted on the basis of a lack of ap propriations unless the President has specifically re quested such appropriations as part of the budgetary process, and the Congress has failed to make avail able the requested appropriations.
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3. Natural Environmental Policy Act of 1969, 42 U.S.C. 44321 et seq., provides in pertinent part:
§ 4331. Congressional declaration of national environ mental policy
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(b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Fed eral Government to use all practicable means, consis tent with other essential considerations of national policy, to improve and coordinate Federal plans, func tions, programs, and resources to the end that the Nation may-
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding gen erations;
(2) assure for all Americans safe, healthful, pro ductive, and esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unin tended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and main tain, wherever possible, an environment which sup ports diversity and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
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§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts
The Congress authorizes and directs that, to the full est extent possible: (1) the policies, regulations, and pub lic laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Govern ment shall-
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(C) include in every recommendation or report on pro posals for legislation and other major Federal actions significantly affecting the quality of the human environ ment, a detailed statement by the responsible official on-
(i) the environmental impact of the proposed ac tion,
(ii) any adverse environmental effects which can not be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and en hancement of long-term productivity, and
(v) any irreversible and irretrievable commit ments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the com ments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmen tal impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
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4. 40 C.F.R. 1506.11 provides:
Emergencies.
Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions nec essary to control the immediate impacts of the emer gency. Other actions remain subject to NEPA review.