memo in favor of stay pending appeal
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THOMAS P. OBRIENUnited States AttorneyLEON W. WEIDMANChief, Civil DivisionMONICA L. MILLERAssistant United States Attorney
RONALD J. TENPASAssistant Attorney GeneralEnvironment & Natural Resources Division
MICHAEL R. EITEL, Neb. Bar No. 22889Trial Attorney, Wildlife & Marine Resources SectionUnited States Department of Justice1961 Stout Street, 8th Floor, Room 812Denver, CO 80294Tele: (303) 844-1479 / Fax: (303) 844-1350E-mail: [email protected]
CHARLES R. SHOCKEY, D.C. Bar No. 914879GUILLERMO A. MONTERO, Ma. Bar No. 660903LUTHER L. HAJEK, D.C. Bar No. 467742Trial Attorneys, Natural Resources SectionUnited States Department of JusticeEnvironment and Natural Resources DivisionP.O. Box 663, Washington, DC 20044-0663Tele: (202) 305-0492/(916) 930-2203Fax: (202) 305-0274/(916) 930-2210E-mail: [email protected]
Attorneys for Defendants
UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
NATURAL RESOURCESDEFENSE COUNCIL, INC.,et al.,
Plaintiffs,
v.
DONALD C. WINTER,Secretary of the Navy, et al.,
Defendants.
))))))
)))))))
Case No. 8:07-cv-00335-FMC (FMOx)
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFAPPLICATION FOR STAY PENDINGAPPEAL
Date: TBDTime: TBD
Hon. Florence-Marie CooperU.S. District Judge
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TABLE OF CONTENTS
PAGE
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3I. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. PROCEDURAL BACKGROUND AND THE COURTSJANUARY 3, 2008 ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. THE NAVY WILL LIKELY PREVAIL IN THEMERITS OF ITS APPEAL BECAUSE THE INJUNCTION
IS OVERBROAD AND DEPRIVES THE NAVY OFREALISTIC TRAINING NECESSARY FOR NATIONALSECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Conditions Imposed Deprive the Navyof Realistic Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. The Record Demonstrates that theInjunction Will Deprive the Navy ofNecessary Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. The Navy Is Entitled to Deference in Mattersof National Security, Including Training
and Military Readiness . . . . . . . . . . . . . . . . . . . . . . . . 14II. THE EQUITIES FAVOR GRANTING A STAY . . . . . . . . . . . . . . 15
A. The Navys MFA Sonar Training Is CriticalTo National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. In a Time of War, the Public Interest FavorsGranting a Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
C. The Navys Compliance With the RelevantSubstantive Statutes, the MMPA and ESA,Weighs in Favor of Granting a Stay . . . . . . . . . . . . . . . . . . . 19
D. The Harm to Plaintiffs of a Stay Would be Minimal . . . . . . 21
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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TABLE OF AUTHORITIES
FEDERAL CASES PAGE
Am. Bioscience v. Thompson, 243 F.3d 579 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . 9
Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . 5Asarco, Inc. v. EPA, 616 F.2d 1153 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 9
Cuomo v. Nuclear Regulatory Commn, 772 F.3d 972 (D.C. Cir. 1985) . . . . . . . . 5
Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) . . . . . 21
FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204 (9th Cir. 2004) . . . . . . . 8,13
Gilligan v. Morgan, 413 U.S. 1 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) 4,5
Holmes v. Cal. Army Natl Guard, 124 F.3d 1126 (9th Cir. 1997) . . . . . . . . . . . 14
Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002) . . . . . . . . . . . . 15
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991) . . . . . . . 1
Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150(6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) 21
Natl Audubon Socy v. Dept of the Navy, 422 F.3d 174 (4th Cir. 2005) . . . . . 14
NRDC v. Pena, 20 F. Supp. 2d 45 (D.D.C. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 17
NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007) . . . . . . . . . . . . . . . 4,5,13,14,16,17
NRDC v. Winter, F.3d , No. 07-56157, 2007 WL 3377229, at *1 (9th Cir. Nov.13, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,4,6,7,13,21
Population Inst. v. McPherson, 797 F.2d 1062 (D.C. Cir. 1986) . . . . . . . . . . . . . . 5
State of Wisconsin v. Weinberger, 745 F.2d 412 (1984) . . . . . . . . . . . . . . . . . . . 13
United States v. Oakland Cannabis Buyers Coop, 532 U.S. 483 (2001) . . . . . . 21
Virginian R. Co. v. Railway Employees, 300 U.S. 515 (1937) . . . . . . . . . . . . . . 21
Washington Metropolitan Area Transit Commn v. Holiday Tours, Inc., 559 F.2d841 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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FEDERAL STATUTES AND REGULATIONS PAGE
10 U.S.C. 5062 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15
16 U.S.C. 1371(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21
16 U.S.C. 1456(c)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1740 C.F.R. 1506.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Federal Rules of Civil Procedure 62(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6
Federal Rules of Civil Procedure 62(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6
Fed. R. App. P. 8(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6
Fed. R. App. P. 8(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6
FEDERAL REGISTER71 Fed. Reg. 38710, 38720 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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INTRODUCTION
Pursuant to Fed. R. Civ. P. 62(c) and 62(e), Fed. R. App. P. 8(1)(A), (C),
and Local Rule 7-19, Defendants Donald C. Winter, Secretary of the Navy, et al.
(Navy), respectfully submit the following Memorandum of Points andAuthorities in Support of Defendants Ex Parte Application For A Stay. For the
reasons set forth below, a stay pending appeal is amply warranted in this case.
On January 3, 2008, the Court issued a preliminary injunction prescribing
conditions that the Navy must implement when it employs mid-frequency active
(MFA) sonar during the challenged Composite Unit Training Exercises
(COMPTUEX) and Joint Task Force Exercises (JTFEX) exercises scheduled
to occur in the Southern California Operating Area (SOCAL). January 3, 2008
Order (Docket No. 91) (January 3 Order). This order was issued on remand
following the Ninth Circuits order vacating the blanket preliminary injunction
against the Navys use of MFA sonar during the exercises issued by this Court on
August 7, 2007 (Docket No. 50) (August 7 Order). The Ninth Circuit overturned
the August 7 Order, stating that an overbroad preliminary injunction is an abuse
of discretion. NRDC v. Winter, F.3d , No. 07-56157, 2007 WL 3377229, at*1 (9th Cir. Nov. 13, 2007) (citing Lamb-Weston, Inc. v. McCain Foods, Ltd., 941
F.2d 970, 974 (9th Cir. 1991)). The Ninth Circuit instructed this Court to narrow
its injunction so as to provide mitigation conditions under which the Navy may
conduct its training exercises. Id. The Navy contends that the Courts January 3
Order is contrary to established equitable principles and does not comply with the
Ninth Circuits directive and the NDE determination by the Secretary of Defense.
Although the Court may not have recognized the full impact that its January
3 Order would have on the Navy, in fact, the conditions imposed by the Court
severely degrade training and would make it unlikely that the Navy could
effectively train and certify naval strike groups for deployment overseas. For
instance, the Court imposed a 2200 yard shutdown whenever marine mammals are
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spotted by Navy lookouts. This condition is a tenfold increase in the existing
shutdown zone and would increase by over 100 times the area within which the
Navy must cease sonar operations due to the presence of marine mammals. Based
on data from previous exercises, this would result in a roughly fivefold increase inthe number of required shutdowns. Application of this condition is infeasible and,
by raising the potential for regular interruptions to training, would create
significant and unacceptable uncertainty into the Navys training and deployment
cycles. The Court also has imposed a 2200 yard shutdown around helicopter
dipping sonar and sonobuoys, sonar sources with much lower intensity than hull-
mounted sonar. This shutdown also could result in frequent interruptions to
training. The Court would also require a dedicated aircraft to monitor for marine
mammals at all times when MFA sonar is in use. This raises safety concerns of
which the Court may not have been aware. The Courts restriction on training in
significant surface ducting conditions is also a serious concern because these
conditions, and learning how to recognize and take advantage of them, are critical
to sonar operators. The court erred in imposing the conditions in the January 3
Order, as explained below and in the Classified Declaration of Admiral GaryRoughead, Chief of Naval Operations (Roughead Declaration) (submitted ex
parte/in camera in support of the Navys stay application). Accordingly, the Navy
raises substantial questions on the merits that the Courts injunction will not allow
the Navy to train and is, therefore, overbroad and in violation of the Ninth Circuits
order.
If the Courts injunction is not stayed, there is a significant risk of severe
harm to the United States, Navy Sailors and Marines, and the public. Naval strike
groups must be able to train using MFA sonar so that they may defend themselves
from attack from quiet, diesel-electric submarines and so that the U.S. Navy can
effectively secure areas of the worlds oceans for safe travel and deter attacks on
the vessels of the United States and other nations. See, e.g., Classified Declaration
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1/ The classified Branch Declaration and Yoshihara Declaration were submitted incamera in support of Defendants Opposition to Plaintiffs Motion for a PreliminaryInjunction (PI Opp.) (Docket No. 25) and Defendants Memorandum Regarding aTailored Preliminary Injunction (Def. Mitigation Br.) (Docket No. 66).
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of Rear Admiral Ted N. Branch (Branch Decl.); Declaration of Rear Admiral
John M. Bird (Bird Decl.) (Docket No. 35); Classified Declaration of David
Yoshihara (Yoshihara Decl.); Declaration of Martin N. May (May Decl.)
(Docket No. 26).
1/
Thus, not staying the Courts injunction would result insignificant impact to the national security and the public welfare. Especially given
that no harm to marine mammals has been documented during the first five training
exercises, any negligible benefit to marine mammals that may result from the
Courts conditions does not outweigh the potential for severe harm to national
security and the compelling public interest in a strong national defense at home and
abroad.
Accordingly, based upon the substantial questions regarding the scope of the
Courts order, the impact on the Navy of following the Courts conditions, as
reflected by the assessment of the Nations most experienced naval officers, and
the marginal benefit to marine mammals if the order is not stayed, this Court
should stay the effect of its order pending the Navys appeal. Because the next
exercise is scheduled to go forward in January, and to build in time for the appeal,
the Navy requests a ruling from this Court as soon as practicable and no later thanJanuary 14, 2008.
BACKGROUND
I. FACTUAL BACKGROUND
The factual background of this case is presented in Defendants Motion to
Dismiss or Stay at 3-7, submitted on June 22, 2007 (Docket No. 23), Defendants
Opposition to Plaintiffs Motion for a Preliminary Injunction at 1-3, submitted on
July 9, 2007 (Docket No. 25), and in Defendants Memorandum Regarding A
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Preliminary Injunction at 1-4, submitted on December 14, 2007 (Docket No. 66),
and will not be repeated here.
II. PROCEDURAL BACKGROUND AND THE COURTS JANUARY 3,2008ORDER
On August 7, 2007, this Court entered an order granting in part Plaintiffsmotion for a preliminary injunction, and the Court issued a blanket preliminary
injunction prohibiting the Navy from engaging in any of the upcoming
COMPTUEX and JTFEX exercises scheduled to occur off the coast of southern
California. See August 7 Order. On August 14, 2007, the Navy appealed the
Courts August 7 Order and moved the Ninth Circuit for a stay of the injunction
pending appeal. On August 31, 2007, the Ninth Circuit granted Defendants
emergency motion to stay the preliminary injunction pending appeal on the
grounds that the Court had failed to adequately consider the harm to the Navy and
the publics interest in having a trained and effective Navy. NRDC v. Winter,
502 F.3d 859, 862 (9th Cir. 2007). On November 13, 2007, the Ninth Circuit
remanded the case to the district court to narrow its injunction so as to provide
mitigation conditions under which the Navy may conduct its training exercises.
NRDC, 2007 WL 3377229, at *1.On remand, this Court has issued an order re-affirming its prior findings
contained in its August 7 Order, see January 3 Order at 4:10-13:3, and issued
affirmative injunctive relief requiring the Navy to implement certain mitigation
measures during upcoming COMPTUEX and JTFEX exercises. Id. at 13:5-18:10.
The Navy now moves for a stay pending appeal of the January 3 Order.
STANDARD OF REVIEW
In determining whether a stay pending appeal should issue, the courts
generally consider: (1) the likelihood that the party seeking a stay will prevail on
the merits of the appeal; (2) the likelihood of irreparable harm to the movant if the
stay is denied; (3) the possibility of substantial harm to others resulting from the
stay, and (4) the public interest in granting the stay. Hilton v. Braunskill, 481 U.S.
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submitted to this Court both in opposition to Plaintiffs motion for injunctive relief
and the briefing on the appropriate scope of a tailored preliminary injunction
demonstrate that Plaintiffs interests will not be irreparably harmed by a stay and
that the interests of the Navy and the public will suffer significant irreparable harmif a stay does not issue. Therefore, this Court should issue a stay pending an appeal
by the Navy. The Ninth Circuit has retained jurisdiction of this case pending the
district courts issuance of a tailored preliminary injunction. See NRDC, 2007 WL
3377229, at *2. Accordingly, this motion is appropriately brought pursuant to both
Fed. R. Civ. P. 62(c), (e) and Fed. R. App. P. 8(a)(1)(A), (C).
I. THE NAVY WILL LIKELY PREVAIL ON THE MERITS OF ITS APPEAL
BECAUSE THE INJUNCTION IS OVERBROAD AND DEPRIVES THE NAVY OF
REALISTIC TRAINING NECESSARY FOR NATIONAL SECURITY
In determining whether to issue a stay, the Court must evaluate the Navys
likelihood of success on appeal. As demonstrated below, there are, at a minimum,
serious questions as to the validity of the Courts decision that warrant a stay
pending appeal to permit appellate review before vital training exercises to the
national security of the United States are compromised by the courts injunction.In the circumstances of this case, the standards for such a stay are manifestly met.
A. The Conditions Imposed Deprive the Navy of Realistic Training
In imposing conditions that have never previously been imposed on the
Navy, the Court would require the Navy to restrict its training in ways that would
prevent Sailors from properly learning how to use MFA sonar to combat the risk of
submarine attack. The Courts 2200 yard shutdown zone is especially onerous and
would risk the Navys ability to certify and deploy strike groups on the basis of
marine mammal presence in the training area. The Courts conditions and their
effects on the Navys training are discussed below, and, in addition, we point out
that the Courts imposition of conditions is in contradiction to the assessment of
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experienced naval officers and did not afford the Navy the deference owed to the
Executive Branch on matters of national defense.
1. The Record Demonstrates that the Injunction Will Deprive
the Navy of Necessary TrainingDefendants will contend on appeal that this Court failed to appropriately
consider or balance the harm to the Navy and to the public interest stemming from
the imposition of the Courts conditions on vital Navy training exercises.
Respectfully, the Courts analysis of the adverse effects on training is contradicted
by the uncontroverted evidence in the record demonstrating that the imposition of
various conditions will severely and irreparably degrade the Navys training. As
such, Defendants will contend that the Courts order, which prevents effective
training and runs counter to the assessment of the Navy regarding degradation on
training, fails to comply with the Ninth Circuits requirement that the injunction be
narrowly tailored so as to provide mitigation under which the Navy may conduct
its training exercises. NRDC, 2007 WL 3377229, at *1. Additional explanation
of the impact of the conditions is described in the Classified Roughead Declaration
(submitted ex parte/in camera).2200 yard shutdown zone. The Court has imposed an MFA sonar shutdown
requirement whenever a marine mammal is spotted within 2200 yards of a ship.
January 3 Order at 15. This shutdown would substantially impair the Navys
training. Some of those effects are described in testimony submitted with the
Navys briefing regarding mitigation:
Plaintiffs proposed shutdown zone of two kilometers contains more
than 100 times the area of the Navys current 200 yard shutdown
zone. This restriction exponentially increases the number of times
that a ship will have to shut down active sonar,preventing realistic
training and depriving ships of valuable submarine contact time.
Operational commanders would lose awareness of the tactical
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3/Mit. Br. Ex. refers to the exhibits to the Declaration of Luther L. Hajek filed insupport of Def. Mitigation Br. (Docket No. 66). PI Opp. Ex. refers to the exhibitsto the Declaration of Luther L. Hajek In Support of Defendants Opposition(Opposition) to Plaintiffs Motion for a Preliminary Injunction (Docket No. 34).
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situation through the constant stopping and starting of MFAS leading
to exercise event disruption.
Bird Supp. 11 (emphasis added). Data from previous exercises show that this
would result in a roughly fivefold increase in the number of required shutdowns.In addition, a shutdown at a critical part of the exercise would waste days of effort
in getting to that critical point and undermine the purpose of the exercise.
Contrary to the testimony submitted to the Court, the order states that [a
2200 yard shutdown zone] represents a minimal imposition of the Navys training
exercises. January 3 Order at 15:18-19. The Courts failure to consider the
Navys testimony, without presenting any detailed factual or legal findings, is in
error. See FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir.
2004) (vacating preliminary injunction for failure to make sufficient factual
findings).
The shutdown zone imposed by the Court also did not appropriately consider
the extensive testimony submitted by the Navy regarding the potential effects on
marine mammals of exposure to MFA sonar at certain distances and relies on
evidence that the Court previously rejected. The maximum shutdown zone that theNavy has ever employed for MFA sonar, based on its consultation with scientists at
NMFS with decades of experience in marine mammal biology, is 200 meters.
NDE I, Mit. Br. Ex. 2 at 12.3/ As explained in the Navys testimony to the Court:
The Temporary Threshold Shift (TTS) (195 dB) is a scientifically measured, peer-
reviewedvalue that identifies a causal relationship between MFAS exposure level
and a temporary harm to marine mammals. Bird Decl. 50 (emphasis added).
Under the Navys current safety zone and power down procedure, at 200 yards, a
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marine mammal would be exposed to only 3% of the energy required to cause
temporary harm. Id. The Court does not address this evidence, nor is the Courts
analysis consistent with its previous findings that the Navys establishment of dB
thresholds, on which the safety zone is based, constituted a reasoned decisionbased on its evaluation of the evidence. August 7 Order at 10 (citation omitted).
Furthermore, the Courts reliance on the Supplemental Declarations of
David Bain and Edward Parsons was in error. January 3 Order at 15. Plaintiffs
declarants are entitled to no deference and may not be relied upon to challenge the
correctness or wisdom of the Navys mitigation. Asarco, Inc. v. EPA, 616 F.2d
1153, 1160 (9th Cir. 1980); Am. Bioscience v. Thompson, 243 F.3d 579, 582-83
(D.C. Cir. 2001). But, even considering the testimony of Plaintiffs declarants,
their vague and unsupported assertions do not controvert the Navys testimony.
Bain Decl. 7 states without support that: The 1000 yd power-down / 200 yd
shutdown is only intended to prevent injuries to hearing. It is not designed to
mitigate injuries to other mechanisms. To the contrary, the Navys safety zone is
intended to limit exposures that may cause behavioral harassment at 173 dB, a
conservative figure established with NMFS that this Court has upheld. August 7Order at 10; Bird Decl. 50; Declaration of Brandon Southall 20-23 (Docket
No. 30). The Courts condition also does not make an exception for dolphins and
porpoises that often seek out vessels to ride the bow wave regardless of whether
sonar is operating. See NDE II, Mit. Br. Ex. 1 at 8. Without this exception, an
entire exercise could be jeopardized because of one marine mammal who chooses
to follow the vessel despite the emission of active sonar (demonstrating that the
marine mammal is not being harmed). Accordingly, the Courts finding with
respect to the necessity of a 2200 yard shutdown zone is unsupported, contradicts
the Courts earlier finding, and illustrates that the affirmative relief in the order is
overly broad.
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Shutdown zone for helicopter dipping sonar and sonobuoys. The Courts
order would also require a 2200 yard shutdown zone around the Navys use of
helicopter dipping sonar and sonobuoys. See January 3 Order at 15, 17. This
condition was not raised by either party during briefing on mitigation, andtherefore has not been previously addressed by the Navy. However, much like the
2200 yard shutdown zone for hull mounted MFA sonar, it would substantially
interfere with the Navys ability to train and would jeopardize strike group
certification. Additional explanation of the impairment on training is discussed in
the Classified Roughead Declaration (submitted ex parte/in camera).
In addition, there is no factual basis for imposing such a restriction on
training. Both dipping sonar and sonobuoys transmit at much lower decibel levels
than hull mounted sonar, and thus emit only a small fraction of the power of hull
mounted sonar. Moreover, in the biological opinion, NMFS concluded that
[b]ecause [sonobuoys and dipping sonar] systems emit a relatively small number
ofvery short pulses (2-5 pulses of 3.5-700 milliseconds (msec), it is extremely
unlikely that its use would have any effecton marine mammals or sea turtles.
BiOp at 10 (emphasis added); see also Notice; Issuance of Incidental HarassmentAuthorization, 71 Fed. Reg. 38710, 38720 (NMFS explaining in detail that the use
of sonobuoys and dipping sonar have no potential to affect marine mammals).
No party presented any evidence warranting a departure from NMFSs expert
determinations in the biological opinion or even suggesting that the mitigation
condition imposed by the Courts order is necessary or appropriate. Indeed, this
Court has already deferred to the determinations of NMFS the expert wildlife
agency and found that the Navy is likely to prevail on its claim that NMFSs
biological opinion is lawful. Accordingly, the condition is unsupported by the
record and is not narrowly tailored.
Surface ducting conditions. The Courts order requires that the Navy power
down sonar use by 6 dB when surface ducting conditions are encountered. January
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4/ The Navy interprets the order as requiring that the Navy power down insignificant surface ducting conditions, as that was the issue before the Court. Boththe Navy and Plaintiffs only addressed significant surface ducting. See PlaintiffsOpening Brief Regarding Appropriate Mitigation Measures for the RemainingSOCAL Exercises at 22 (Docket No. 68); Def. Mitigation Br. at 26 (Docket No. 66);see also Bird Decl. 52 (discussing strong surface ducting conditions).
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3 Order at 17.4/ The Navy has demonstrated that it needs to train in significant
surface ducting conditions. See Bird Decl. 52; Bird Supp. 13. Training in such
conditions is critical because enemy submarines use the thermocline (the boundary
between layers of water with different temperatures) to hide and potentially attack,and the Navy must train in such conditions at ranges relevant to antisubmarine
warfare. Id. The Classified Roughead Declaration submitted ex parte/in camera in
support of this motion provides more specific information as to why training in
surface ducting conditions at less than normal power results in substantial
degradation of training.
Although the Court cited Bird Decl. 52 and acknowledged that surface
ducting makes submarines difficult to detect, the Court did not properly weigh
the Navys need to train in such conditions against the negligible benefit that may
be imparted to marine mammals if the Navy always powers down by 6 dB in such
conditions. January 3 Order at 17. The order states only that the Navy shall
power down sonar by 6 dB. Id. Moreover, the Court did not consider that
significant surface ducting only poses a threat to marine mammals when it occurs
in combination with other factors: a restricted channel with limited egress, steepbathymetry (underwater topographic features), the presence of beaked whales, and
multiple sources of sonar operating simultaneously. See EA, PI Opp. Ex. 1 at 181.
NDE II condition No. 26 addresses this risk by requiring that the Navy take special
precautions when surface ducting conditions exist, along with other factors that in
combination could pose a threat to beaked whales. Mit. Br. Ex. 1 at 8-9.
Therefore, we respectfully contend that the Courts failure to give greater
consideration to the need of young Sailors to train in the conditions and in the
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manner in which they will be required to protect the safety of the strike group and
the Sailors and Marines on board ship conflicts with the Ninth Circuits instruction
to develop narrowly tailored mitigation measures that allow the Navy to conduct its
MFA sonar training.Aerial Monitoring. The Court has ordered that [a]erial monitoring shall
continue for the duration of the exercises involving the use of MFA sonar.
January 3 Order at 15. This condition was not requested by any party and there is
no record evidence to support the imposition of such a condition. NDE II, which
the Navy follows, requires that: Navy aircraft participating in exercises at sea will
conduct and maintain, when operationally feasible and safe, surveillance for
marine species of concern as long as it does not violate safety constraintsor
interfere with the accomplishment of primary operational duties. Mit. Br. Ex. 1 at
7 (emphasis added). The Courts order does not explain why the Navys own
aircraft are insufficient to conduct monitoring or how an additional dedicated
aircraft would be more effective. The Courts requirement also fails to give due
consideration to the safety risks to Navy pilots and pilots of dedicated monitoring
aircraft if a monitoring aircraft is kept constantly aloft during an exercise that maytake weeks. In addition, severe training disruptions could occur due to mechanical
failure or other circumstances preventing a dedicate monitoring aircraft from being
launched. Therefore, the condition is overly broad.
Choke Points and the Catalina Basin. The Courts condition would entirely
exclude the Navy from training using MFA sonar in the Catalina basin. January 3
Order at 17-18. Testimony previously submitted by the Navy states: The area
described in this exclusion is a vital staging area where small boat attacks are
generated and can safely take place in numbers sufficient to simulate the enemy.
The multi-dimensional nature of coordinating enemy air, surface and subsurface
attacks is lost, training is degraded, warfare commanders and sailors are left with
an untested sense of security and training opportunities against anticipated real
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world threats are lost. Bird Supp. 5 (emphasis added). In imposing a blanket
exclusion of MFA sonar training in this area, the Court did not give proper
consideration to this testimony, nor did the Court give proper consideration to the
fact that the Navys current mitigation, developed in consultation with NMFS,already requires that special precautions be taken in chokepoint areas when other
factors are also present which together may pose a risk to marine mammals. NDE
II, Mit. Br. Ex. 1 at 8-9.
In addition, the Courts finding that the Catalina Basin constitutes an actual
chokepoint that would endanger marine mammals by limiting ingress and egress is
contrary to the evidence submitted by the parties. The Navy presented unrebutted
testimony that the waters off southern California have no actual constricted
channels so a measure particular to chokepoints or constricted channels is not
necessary in southern California waters. Bird Decl. 54. Indeed, as the Court
recognized in the order, when training in the Catalina Basin, the Navy uses
simulated chokepoints. January 3 Order at 17. A simulated chokepoint would
not have any impact on marine mammal egress and therefore would pose no danger
to marine mammals. The finding that a simulated chokepoint was the same as anactual chokepoint and presented the same risks was a factual error and led the
Court to craft an overly broad restriction on training.
As the Ninth Circuit has held, the issues in this case go to the very heart of
the welfare and security of this country. The public interest in a strong national
defense must be meaningfully weighed and considered alongside the publics
interest in protecting the environment. NRDC, 502 F.3d at 863-64. Given the
complexity of the military operations involved, the imposition of the conditions in
the January 3 Order does not permit the COMPTUEX and JTFEX to proceed in an
effective and meaningful manner, as required by the Ninth Circuit. Id.; see also
State of Wisconsin v. Weinberger, 745 F.2d 412, 428 ([T]he district court abused
its discretion by failing to consider the degree to which the NEPA interest would,
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in fact, be served by an injunction, the efficacy of other forms of relief, and the
harm to the national defense that would result.); Enforma, 362 F.3d at 1212
(factual findings must be sufficiently comprehensive and pertinent to the issues to
provide a basis for decision). Accordingly, the Court has failed to issue tailoredinjunctive relief so as to provide mitigation under which the Navy may conduct its
training exercises. NRDC, 2007 WL 3377229, at *1, and the Navy has raised
serious legal issues which justify a stay pending appeal.
2. The Navy Is Entitled to Deference in Matters of National
Security, Including Training and Military Readiness
As described above, in imposing conditions on the Navys MFA sonar
training, we will argue that the Court failed to give the required deference to the
Navys considered assessment of which conditions would permit the Navy to
properly train and certify strike groups for deployment. In doing so, the Court
acted contrary to the deference that must be afforded to the Executive Branch on
issues relating to the national defense. The Navy is statutorily responsible for the
preparation of naval forces necessary for the effective prosecution of war. 10
U.S.C. 5062. Therefore, the Navys assessment of what is necessary for effectivetraining, and what the impact of restrictive measures would be, is entitled to
substantial deference. Courts give considerable deference to the Executive
Branchs judgment regarding foreign policy and national defense. NRDC, 502
F.3d at 862; see also Holmes v. Cal. Army Natl Guard, 124 F.3d 1126, 1133 (9th
Cir. 1997) ([judicial] review is especially deferential in the military context.).
The readiness of carrier groups so essential to the protection of this nations vital
interests and the safety of [sailors] who risk their lives in the common defense are
matters of the gravest import. Natl Audubon Socy v. Dept of the Navy, 422
F.3d 174, 203 (4th Cir. 2005). District courts should not substitute their own
judgments for those of the Executive Branch in such national security matters as . .
. training, squadron readiness, and safety. Id.; see also Gilligan v. Morgan, 413
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U.S. 1, 10 (1973) ([I]t is difficult to conceive of an area of governmental activity
in which the courts have less competence.).
Even in circumstances that did not involve the national security interests at a
stake here, the Ninth Circuit has held that a district court should defer to agencyexpertise in fashioning a tailored preliminary injunction. See Idaho Watersheds
Project v. Hahn, 307 F.3d 815, 831 (9th Cir. 2002) (district court properly rejected
drastic proposals from the Environmental Groups and deferred to the
considerable agency expertise in fashioning interim protective measures). The
Courts frequent citation to Plaintiffs declarations and exhibits and failure to
appropriately consider or weigh the directly relevant evidence submitted by the
Navy is contrary to the deference that should have been afforded the Navy under
these circumstances. Accordingly, the Navy has raised substantial questions, if not
a likelihood of success, on the merits of an appeal of the Courts January 3 Order.
II. THE EQUITIES FAVOR GRANTING ASTAY
A. The Navys MFA Sonar Training Is Critical to National Security
The COMPTUEX and JTFEX, which are the subject of the Courts
injunction, are a critical component of the Navys training and fulfill the obligationof the Chief of Naval Operations under 10 U.S.C. 5062 to organize, train, and
equip all naval forces for combat. Environmental Assessment (EA), PI Opp. Ex.
1 at 26; Bird Decl. 35. Naval strike groups, which are built around either an
aircraft carrier or amphibious assault ship, must successfully complete JTFEX and
be certified before they can deploy and conduct their missions overseas. PI Opp.
Ex. 1 at 26, 33; Bird Decl. 35. The COMPTUEX and JTFEX are the only
opportunities for the thousands of Sailors and Marines in a strike group to train in a
coordinated manner and in a realistic environment prior to deployment to hostile
and dangerous parts of the world. Bird Decl. 16.
Training in the use of MFA sonar, which the Court has effectively enjoined
through overbroad mitigation measures, is a vital component of the pre-
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5/Due to the significant adverse national security impact of the Courts injunctiveorder, the Navy is also in the process of evaluating alternative legal options. Cf., e.g.,NRDC v. Pena, 20 F. Supp. 2d 45, 50 (D.D.C. 1998) (discussing NEPA emergency
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deployment training in the COMPTUEX and JTFEX. PI Opp. Ex. 1 at 43-44, 47-
48; May Decl. 6-7 (Docket No. 26); Classified Yoshihara Decl. The use of
MFA sonar is complex and requires constant training in realistic combat scenarios
to maintain. May Decl. 13-18, 21. MFA sonar is the Navys primary means ofdetecting potentially hostile diesel-electric submarines used by such nations as
China, North Korea, and Iran. See id. 11-12, 19-20; Bird Decl. 22. The
primary target of hostile submarines is the U.S. Navy aircraft carrier, which
typically carries over 5,300 servicemen and civilians. May Decl. 10. Thus, the
inability to train with MFA sonar literally puts the lives of thousands of American
men and women at extreme risk, as well as endangering national security. Id.
27-30; Bird Decl. 16; Classified Yoshihara Decl.; Classified Branch Decl.
As explained in the Classified Roughead Declaration submitted ex parte/in
camera, if the Navy were to follow the conditions in the Courts January 3 Order, it
would not have any reasonable assurance that it could conduct its training in a
manner that would permit certification of strike groups and thus allow the strike
groups to deploy. The inability to certify strike groups from the West Coast would
have immediate impacts on the Navys deployment cycles, affect thousands ofSailors and Marines and their families, and cause severe, irreparable harm to the
United States, its citizens, and other nations. See Classified Branch Decl. The
Ninth Circuit has already issued a stay in this case on the basis that a blanket
injunction of the Navys use of MFA sonar during the COMPTUEX and JTFEX
would irreparably harm the interests of the Navy and the public. NRDC, 502 F.3d
at 864-65. Since the Courts January 3 Order has the same practical effect as a
blanket injunction, the equities mandate the issuance of a limited stay while the
Navy pursues an appeal of the Courts January 3 Order.5/
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28provision under 40 C.F.R. 1506.11); 16 U.S.C. 1456(c)(1)(B) (authorizingPresidential exemption under CZMA).
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B. In a Time of War, the Public Interest Favors Granting a Stay
In this case, and in binding precedent, the Ninth Circuit has held that the
failure to consider the public interest when issuing injunctive relief constitutes an
abuse of discretion. NRDC, 502 F.3d at 862. Moreover, the Ninth Circuit foundthat this case touches on issues going to the heart of this Nations security and to
the welfare of the public interest: We are currently engaged in a war, in two
countries. There are no guarantees extending from 2007 to 2009 or at any other
time against other countries deciding to engage us, or our determining that it is
necessary to engage other countries. The safety of our whales must be weighed,
and so must the safety of our warriors. Id. at 863-64. In terms of balancing the
public interest, the potential environmental harms for purposes of considering a
stay pending appeal are the same now as they were when the Court issued the
August 7 Order, which the Ninth Circuit vacated as overbroad.
We respectfully submit that the Courts January 3 Order did not give due
consideration to the publics interest in a national defense. NRDC, 502 F.3d at
863. With respect to taking account of the demonstrated irreparable harm to the
Navy and the public interest, the Court stated:The Court is also satisfied that the balance of the 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
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.
January 3 Order at 12-13.
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However, the Court did not make any other reviewable findings regarding
the importance of the exercises to the Navy, the public, and national security. As
explained above, equitable principles and the Ninth Circuits decision require that
the training be permitted to go forward, and it must therefore go forward in amanner in which it will be effective. Any mitigation measures that may be
imposed by injunction may not prevent accomplishment of that purpose.
Moreover, the Secretary of Defense, pursuant to express statutory authorization,
has determined that this training exercise to be carried out under criteria concurred
in by the Secretary of Commerce, is necessary to the national defense and on that
basis has exempted it from the MMPA, the Act of Congress that affords
substantive protection to marine mammals. Because equitable relief must be
consistent with the applicable statutory framework, the Court may not override that
determination by imposing its own substantive conditions to prevent impacts on
marine mammals if those conditions would prevent the accomplishment of the
training mission.
But even if the Court could do so, it made no findings of the sort that would
be required for that purpose. The Courts order does not mention the ClassifiedBranch Declaration, which explains the extreme risk to national security should an
overbroad injunction issue. The order also does not reference the testimony of
Rear Admiral Bird, whose declaration states: If a strike group does not gain
proficiency in MFA sonar, and cannot be certified as combat ready, this carries
national security implications. Bird Decl. 16 (emphasis added).
In addition, the Courts description of the COMPTUEX and JTFEX as a
subset of their regular activities in one part of one state for a limited period also
indicates a misunderstanding of the importance of these exercises and the need to
conduct them in SOCAL. These are not just any exercises. These are theexercises
by which the Navy evaluates and certifies strike groups for combat readiness. Bird
Decl. 35. U.S. THIRD Fleet, which includes a substantial portion of the Navys
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carrier and expeditionary strike groups, conducts certification exercises in SOCAL.
See PI Opp. Ex. 1 at 26-27. It is critical that the Navy conduct these exercises in
SOCAL because all of the land, air, and at-sea bases necessary for conducting the
exercises are located in SOCAL, including an instrumented range which allowsNavy commanders to evaluate strike groups; the training areas in SOCAL are a
long term investment by the Navy and the Navy cannot immediately transplant all
of its bases and thousands of Sailors and Marines overnight; and the shallow
coastal areas in SOCAL provide a unique environment for the Navy to train in
conditions where hostile submarines are likely to hide and that the Navy will
encounter overseas. Bird Decl. 17-23, Supplemental Declaration of Rear
Admiral Bird (Bird Supp.) 2-4 & Fig. 2 (Docket No. 80). When the
importance of the exercises, the harm to the public interest, and the harm to the
Navy are considered and weighed, the equities mandate more narrowly tailored
injunctive relief. In light of the serious national security issues at stake and the
potential for grievous irreparable harm to the United States and to the American
public absent a stay, the Navy respectfully contends that a stay is warranted.
C. The Navys Compliance With the Relevant Substantive Statutes,the MMPA and ESA, Weighs in Favor of Granting a Stay
In balancing the equities of imposing injunctive relief, the Navys
compliance with the applicable requirements of the Marine Mammal Protection
Act (MMPA), established through the issuance of a National Defense Exemption
(NDE) for the MFA sonar training, NDE II, Mit. Br. Ex. 1, and the Navys
compliance with the Endangered Species Act (ESA), August 7 Order at 18,
should also have been given effect by the Court in crafting narrowly tailored
injunctive relief. In invoking the NDE, after consultation with the Secretary of
Commerce, the Secretary of Defense established 29 mitigation measures to protect
marine mammals during the course of the exemption a step that goes beyond the
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bare requirements of the MMPA. See id. The Navy has complied with those
requirements.
The NDE is critical to the Courts determination because it is based upon a
finding by the Secretary of Defense, pursuant to express statutory authority andafter consulting with the Secretary of Commerce, that the Navys training using
MFA sonar is necessary for the national defense. NDE II, Mit. Br. Ex. 1 at 4.
When Congress amended the MMPA to provide for the NDE, it delegated to the
Secretary of Defense the authority to determine when national security needs
warrant exemption from the usual requirements of the MMPA and its substantive
protection of marine mammals. 16 U.S.C. 1371(f)(1). Here, the Secretary of
Defense has invoked the NDE, found these exercises to be necessary for national
defense, and found that effective training can occur with the NDE mitigation
measures developed in consultation with NMFS. Mit. Br. Ex. 1 at 4.
Equitable relief must comport with the governing statutory framework. The
Secretarys national defense determination and the Act of Congress authorizing it
therefore must be understood to have struck the proper balance of the hardships
and the public interest insofar as the effect of the training exercise on marinemammals is concerned; at the very least, that determination must be given great
weight. The Secretary of Defenses invocation of the NDE thus confirms that the
balance of the hardships and the public interest lies squarely with permitting the
challenged exercises to proceed with the NDE II mitigation measures in place. The
Courts January 3 Order, which goes well beyond those measures determined by
the Secretary of Defense to be within the public interest, is therefore overbroad.
Moreover, the Navy contends that the Court did not appropriately consider the
invocation of NDE II or the Courts finding that the Navy is likely in compliance
with the ESA when issuing injunctive relief, contrary to the standards governing
this Courts review. United States v. Oakland Cannabis Buyers Co-op, 532 U.S.
483, 497 (2001) ([A] court sitting in equity cannot ignore the judgment of
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Congress, deliberately expressed in legislation. (quoting Virginian R. Co. v.
Railway Employees, 300 U.S. 515, 551 (1937)).
The public interest in this case clearly favors permitting the Navy to conduct
its training in a way that allows it to certify strike groups so that they can bedeployed to conduct combat and other missions overseas. Two cabinet level
officials acting under the express statutory authorization in the MMPA and finding
that Navys MFA sonar training have already determined that these exercises are
necessary for national defense, and the need to conduct such training has already
been balanced against environmental concerns, specifically with respect to marine
mammals. Mit. Br. Ex. 1 at 4; see also 16 U.S.C. 1371(f)(1). These issues
demonstrate that serious questions are raised as to the scope of this Courts order
and further demonstrates that a stay is amply warranted in this case.
D. The Harm to Plaintiffs of a Stay Would be Minimal
As the Navy argued to this Court and the Court has now agreed, in order to
constitute irreparable harm to marine mammals, the Navys MFA sonar use would
have to cause population-affecting levels of disruption. January 3 Order at 12;
see also Def. Mitigation Br. at 6-7; Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451F.3d 1005, 1010 (9th Cir. 2006) (NEPA regulations direct the agency to consider
the degree of adverse effect on a species, not the impact on individuals of that
species.); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240
(9th Cir. 2005) ([I]t does not follow that the presence of some negative effects [on
wildlife species or their habitat] necessarily rises to the level of demonstrating a
significant effect on the environment.). Yet, the order does not explain which
marine mammal species or populations are being put at risk by the Navys training,
let alone any harm that NRDC or its member might suffer as a result of the Navys
training. Nor does the order explain the contradiction between the earlier finding
that Plaintiffs have no likelihood of success on their Endangered Species Act
claim, August 7 Order at 18, and the finding that the Navys SOCAL exercises will
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cause irreparable harm to five species of endangered whales. January 3 Order at
12. The Court also previously found the Navys 173 dB threshold to be
sufficiently protective, August 7 Order at 10, yet now it would require a shutdown
zone that would limit exposure levels to far below that threshold. January 3 Orderat 15.
Despite Plaintiffs exaggerated predictions of mass strandings and injuries to
whales from the Navys exercises in SOCAL, there is no evidence before the Court
indicating that any marine mammal has ever been injured by the Navys use of
MFA sonar in SOCAL. In fact, the Ninth Circuit in reviewing this case stated only
that Plaintiffs have shown a possibility of irreparable harm warranting some
form of preliminary injunctive relief that is narrowly tailored. NRDC, 2007
WL 3377229, at *1. As explained above, the January 3 Order does not impose
narrowly tailored injunctive relief and severely compromises the Navys ability
to train with MFA sonar in SOCAL in a manner disproportionate to any record
evidence of possible risk to marine mammals.
What the evidence in the record does show is that the Navy has been using
MFA sonar with the same intensity (decibel level) and at comparable usage levelsin SOCAL since the 1960s. Bird Decl. 18. In fact, MFA sonar usage has
declined slightly since 1992 and likely was even higher prior to 1992 because the
Navy had more ships with MFA sonar capability homeported in San Diego during
that time frame. Id. It remains the case that, after over 40 years of conducting
similar exercises in SOCAL, not a single stranding has occurred that has been
linked to the Navys use of MFA sonar. See Defendants Opposition at 23-24
(Docket No. 25). The Navys reports to NMFS following the SOCAL exercises
last spring did not indicate any unusual marine mammal behavior and certainly no
injuries or stranding due to the use of MFA sonar. See PI Opp. Ex. 6. Plaintiffs
are constantly on the lookout for a stranding that they can attempt to attribute to the
Navy, and yet, to date, none has occurred. As the Navy has explained, the Navys
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use of MFA sonar during the COMPTUEX and JTFEX is expected to result, at
most, in the temporary, non-injurious harassment of marine mammals.
Defendants Opposition at 8-9 (Docket No. 25). Marine mammal populations in
SOCAL are not decreasing and the populations of many listed species, such ashumpback whales and blue whales, are stable or increasing. Id. at 24.
Accordingly, based on past experience and the failure of Plaintiffs to describe any
irreparable harm that has occurred from the Navy conducting its training as
normally scheduled for nearly a year, a stay will not result in any irreparable harm
to marine mammal species in SOCAL or to the Plaintiffs interests. Indeed, given
the Secretary of Defenses NDE determination, little may properly be attributed to
any such harm as a legal matter.
CONCLUSION
For the reasons stated above and in prior briefing of these issues to the
Court, the Navy requests an immediate stay of the Courts January 3, 2008 Order.
Because the next exercise is scheduled to go forward in January, and to build in
time for the appeal, the Navy requests a ruling from this Court as soon as
practicable and no later than January 14, 2008.Respectfully submitted this 9th day of January, 2008.
/s/Luther L. HajekLUTHER L. HAJEK, D.C. Bar No. 467742U.S. Department of Justice
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THOMAS P. OBRIENUnited States AttorneyLEON W. WEIDMANChief, Civil DivisionMONICA L. MILLERAssistant United States Attorney
RONALD J. TENPASAssistant Attorney GeneralEnvironment & Natural Resources Division
MICHAEL R. EITEL, Neb. Bar No. 22889Trial Attorney, Wildlife & Marine Resources SectionUnited States Department of Justice1961 Stout Street, 8th Floor, Room 812Denver, CO 80294Tele: (303) 844-1479 / Fax: (303) 844-1350E-mail: [email protected]
CHARLES R. SHOCKEY, D.C. Bar No. 914879GUILLERMO A. MONTERO, Ma. Bar No. 660903LUTHER L. HAJEK, D.C. Bar No. 467742Trial Attorneys, Natural Resources SectionUnited States Department of JusticeEnvironment and Natural Resources DivisionP.O. Box 663, Washington, DC 20044-0663Tele: (202) 305-0492/(916) 930-2203Fax: (202) 305-0274/(916) 930-2210E-mail: [email protected]
[email protected]@usdoj.gov
Attorneys for Defendants
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PROOF OF SERVICE
I, Luther L. Hajek, hereby certify that on Wednesday, January 9, 2008, I
electronically filed the foregoing MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF APPLICATION FOR STAY PENDINGAPPEAL with the Clerk of Court using the CM/ECF system, which will
automatically send email notification to attorneys of record. Moreover, I caused to
be served, via electronic and overnight mail, postage prepaid, copies of the
foregoing on the following counsel:
Joel R. ReynoldsAndrew E. WetzlerCara A. Horowitz
NATURAL RESOURCES DEFENSE COUNCIL, INC.1314 Second StreetSanta Monica, CA 90401Tele: (310) 434-2300 / Fax: (310) [email protected]
/s/ Luther L. HajekLuther L. Hajek
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