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October 31, 2002


The opinion of the court was delivered by: Elizabeth D. Laporte, United States Magistrate Judge



As explained below, the Court recognizes the importance of this new sonar technology to national security. The Court also commends defendants' sponsorship of independent scientific research to advance our limited understanding of the effects of low frequency sound on marine mammals. Plaintiffs have shown, however, that they are likely to prevail on a number of issues. These include the likelihood of establishing that the authorization of harassment of up to 12 percent of marine mammals violates the "small numbers" limitation and that NMFS has impermissibly narrowed the definition of harassment, in violation of the MMPA; that NMFS acted arbitrarily in postponing the designation of additional "off limits" areas within the ocean where marine mammals and endangered species are likely to be particularly abundant, and did not sufficiently analyze reasonable alternatives, in violation of NEPA; and that, by relying on an illegal regulatory definition of adverse modification and not including proper incidental take statements in its two biological opinions, NMFS violated the ESA. Plaintiffs have also raised serious questions on the merits on the issues of whether NMFS acted arbitrarily and capriciously in choosing the specified geographic regions identified in the Final Rule, and whether the taking authorized will have more than a negligible impact on marine mammals. However, the Court is not predicating any injunctive relief upon these issues. Defendants are likely to prevail on the remaining issues.

The Court concludes that a preliminary injunction should issue. Plaintiffs have shown the likelihood of irreparable injury and of a future violation of the ESA. At the same time, the Court must consider the public interests both in national security and in protecting marine mammals. and endangered species. Accordingly, the Court concludes that a carefully tailored preliminary injunction should issue, which permits the use of LFA sonar for testing and training in a variety of ocean conditions, but provides additional safeguards to reduce the risk to marine mammals and endangered species.


The Court reviews challenges under the MMPA, ESA, NEPA, and APA to ensure that the agency has not acted in a manner that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 471 (9th Cir., 2000); 5 U.S.C. § 706. To obtain a preliminary injunction,

the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.

Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998). "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (citing Railroad Comm'n. v. Pullman Co., 312 U.S. 496, 500 (1941)).

A. Scientific Background, Including Basis for 180 dB Threshold

One important scientific dispute between the parties is whether the standard of 180 decibels ("dB") adopted by NMFS as the threshold for probable injury to marine life is arbitrary and capricious. Decibels measure sound intensity or loudness on a logarithmic scale; for example, a sound measuring 180 dB is approximately ten times more intense than a 170 dB sound. LFA sonar uses low frequency sound waves which travel farther distances in the ocean with less loss of intensity than higher frequency sound waves. Plaintiffs contend that substantial scientific evidence indicates that injury to marine mammals occurs at much lower levels than 180 dB. Defendants respond that an independent scientific team arrived at the 180 dB threshold based on a review of the relevant literature, the results of a specially designed Scientific Research Program ("SRP"), and underwater acoustical modeling. (2nd Johnson Dec. at ¶ 7, 9-11; EIS p. 4.201.)

Under the SRP, independent scientists designed controlled scientific studies of the impact of LFA sonar on marine mammals at sound levels between 120 dB and approximately 155 dB, which they conducted over a one-year period using an LFA-equipped ship provided by the Navy. The studies tested the effect of LFA sonar on four species of endangered baleen whales, which specialize in hearing sounds in the low frequency range in which LFA sonar operates, and thus were expected to be most sensitive to LFA sonar. The results surprised the scientists:

Prior to the LFS SRP, the expectation was that whales would begin to show avoidance responses at RLs [Received Levels] of 120 dB. Immediately obvious avoidance responses were expected for levels > 149 dB. The LFS SRP experiments detected some short-term behavioral responses at estimated RLs between 120-155 dB. In the Phase II research, avoidance responses were sometimes obvious in the field when the LF source was in the gray whale migration path. Although several behavioral responses were revealed through later statistical analysis, there was no
significant change in a biologically important behavior detected in any of the three phases. Most animals that did respond returned to normal baseline behavior within a few tens of minutes.

(EIS at p. ES-16.)

Dr. Tyack, Senior Scientist at Woods Hole Oceanographic Institution, originally became concerned about the potential impact of the LFA sonar system on whales as a volunteer science advisor to plaintiff NRDC. (Tyack Decl. ¶ 6.) He was subsequently retained by the Navy as one of two principal investigators of SRP. He explained:

The SRP was designed to study exposure ranges from 120-160 dB, the range in which we expected to see significant responses. The experiments were carefully designed to start at the low end of this exposure range and slowly work up, stopping at the level at which significant responses were observed. The results from the SRP show minor enough responses that most scientific reviewers have urged further study of higher exposure levels, at least from 160-180 dB.

(Tyack Dec. at ¶¶ 29-30.)

Similarly, Dr. Clark, the other principal investigator of the SRP concluded:
The SRP results support the conclusion that the received level at which behavioral responses occur is around 140 dB, not 120 dB as expected based on the earlier gray whale research. This result cannot be extended to arctic species such as the bowhead and beluga whales, which are known to be extremely sensitive to noises from human activities. However, since the Navy has stated that LFA will not be used in the Arctic, these sensitive species are not placed at risk. For lower latitude areas, the SPY results reduce the scale of potential impact by as much as several orders of magnitude. The results showing that responses last for only tens of minutes and involve modest changes in behavior does not mean that animals are not responsive to LFA sounds. It means that their response levels are much less than those expected based on the best evidence available prior to the SPY.

(Clark Dec. at ¶ 22; see also Fristrup Dec. at ¶ 11 (the brevity and subtlety of the behavioral responses observed "are strong indicators that LFA exposures at received levels up to 155 dB could not affect survivorship or reproduction.")).

The SRP did not test responses of marine mammals to LFA sonar at received levels above 155 dB, but instead used modeling to extrapolate from a presumed 95 percent risk at a received level of 180 dB. According to Dr. Kurt Fristrup,

Having attached the Risk Continuum to 95% risk at 180 dB, the remaining choice involved determining how rapidly risk declined with decreasing received level. The OEIS/EIS incorporates a plausible, worst-case assumption that biologically significant behavioral reactions could begin to appear at received levels just above the received levels we achieved in the experiments (155 dB). As a result, the Risk Continuum provides an upper bound for the plausible impact of LFA signals in the range of received levels for which no experimental evidence is available. For example, a 50% risk value is assigned for exposure to one LFA signal at a received level of 165 dB. Thus, we expect that there is less than a 50% chance that exposure to a single LFA broadcast at 165 dB could result in a biologically significant response.

(Fristrup Dec. at ¶¶ 16-18.)

In addition to results from the SPY, defendants relied on extrapolations from levels of sound that cause injury to other species, including humans and guinea pigs. 67 Fed. Reg. 46779. Mr. Johnson, Technical Director for the Chief of Naval Operations, explains that "[h]earing loss due to sound exposure is well studied in humans and other land animals, but data for marine mammals are sparse. These data gaps . . . prompted the use of models and extrapolations, in order to provide a rational basis for the assessment of risk potential." (2nd Johnson Dec. at ¶ 8.)

Plaintiffs argue that the mass stranding of marine mammals, primarily beaked whales, in March 2000 in the Bahamas, which the Navy's and NMFS's own task force linked to military exercises involving the use of underwater mid-frequency sonar, demonstrates that the injury threshold of 180 dB is too high. The task force report indicated that the injured whales were likely exposed to levels of 165 dB. The whales sustained hemorrhages in the inner ear, in some tissues adjacent to the ear, and in the fluid spaces surrounding the brain, as well as clotting in the cerebral ventricles, although their deaths apparently resulted most immediately from protracted exposure upon beaching. (Ketten Dec. at ¶¶ 16-17.) Rescuers returned some whales to the sea, but those whales have not been seen again. (Balcomb Dec. at ¶ 10.) Plaintiffs' expert contends that they either died at sea or were largely driven to abandon their habitat. (Balcomb Dec. at ¶ 11.) Defendants' expert argues that there is not enough data on resighting rates to support this conclusion. (Ketten Dec. at ¶ 38.) Plaintiffs' expert Balcomb, however, testified at the hearing that he and his scientific team had studied beaked whales in the area prior to the mass stranding and identified and photographed 35 as frequent visitors. Yet, in the two years since the stranding, his team has seen only one of the previously identified whales return to the area.

The experts on both sides agree that the mechanism of injury in the Bahamas strandings is unknown. (Potter Dec. at ¶ 15; Cudahy Dec. at ¶ 17.) What they dispute is the implication to be drawn from this lack of scientific knowledge; in particular, whether LFA, which operates at much lower frequencies than the sonar involved in the Bahamas strandings, is likely to cause similar injuries. Plaintiffs expert Dr. Potter, Research Associate Professor of the Tropical Marine Science Institute, opines that "[s]ince the mechanism is unknown, it is not scientifically justifiable to assume anything about its frequency-dependence. The mechanism may well also apply at low frequencies, such as those used by the SURTASS LFA sonar." (Potter Dec. at ¶ 15.)

Defendant's experts Dr. Cudahy and Dr. Fristrup counter that it is speculative to assume that the unknown mechanism involved in the strandings related to mid-frequency sonar will apply when low frequency sonar is employed. For example, Dr. Cudahy states that:

[while] there is little data on the non-auditory physiological impact of mid-frequency underwater sound on animals or humans . . . . there is an extensive data set on non-auditory and auditory injury due to low frequency underwater sound, collected on over 500 animals and over 100 humans. The conclusions drawn m the EIS regarding tissue damage at low frequencies were based in part on these data. Currently, there is no established mechanism for the tissue damage observed in the marine mammals stranded in the Bahamas in March 2000 and very little data to bring to bear on what happened. Nor is there a data set collected on other animals exposed to mid-frequency underwater sound that addresses non-auditory damage. This makes extrapolation from mid-frequency data to low-frequency data very problematic. In order to make such an extrapolation, clear physiological data on a large sample set (tens or hundreds) of animals exposed to mid-frequency underwater sound is needed. In the absence of such data all that exists are hypotheses. Again, the best extrapolations will be made from data collected in the same frequency region and for comparable organ systems. Thus, it is incorrect to draw the kind of correlation that the plaintiffs in this case assert between the stranding of beaked whales in the Bahamas when exposed to mid-frequency sonar and possible impacts to marine mammals associated with the operation of the low frequency SURTASS LFA.

(Cudahy Dec. at ¶ 17-18.) Similarly, Dr. Fristrup points out that natural sources of loud low frequency sound, such as earthquakes and lightning strikes, are common in the ocean, so marine mammals likely adapted to such loud low frequency sounds in their evolution. (Fristrup Dec. at ¶ 25.) Dr. Ketten concludes:

We are logically compelled to infer that the traumas observed in the Bahamian strandings, whatever the mechanism, is species or taxa specific and is not common to whales much less marine mammals per se. For this reason alone it is highly inappropriate to construe this event as an indicator of similar events in other whales from the same or other sonars or acoustic devices.

(Ketten Dec. at ¶ 33.) The EIS states that "[c]urrent evidence would suggest that[,] while beaked whales may be sensitive to frequencies above SURTASS LFA sonar, there is little evidence that they are more sensitive to LFA sounds than the species selected as subjects for the LFS SRP." (Stafford Dec. Ex. 1 at 3.2-47) (as corrected).

Plaintiffs respond that defendants themselves have extrapolated from mid- and even high-frequency sound to low frequency sound, and across species, even though they chastise plaintiffs' experts for doing so with respect to the mass strandings. (Navaro Dec. Ex. 14 at 1-23 to 1-28, 4.2-21 to 4.2-23; 67 Fed. Reg. 46737, 46740-46741; Navaro Dec. Ex. 3 at 104-06). Furthermore, there have been prior strandings correlated with the use of mid-frequency military sonar, although these events were less well studied. (Stafford Dec. Ex. 20.) For example, another mass stranding of beaked whales occurred along the west coast of Greece in 1996, which was correlated with the movements of an active sonar system operated by NATO in both low and mid-frequency bands. (Stafford Dec. Ex. 20.)

It appears to the Court that both plaintiffs' and defendants' experts make reasonable points about the possible implications of the strandings, but that both sets of experts must, of necessity, engage in some speculation, given the current state of scientific uncertainty. The possibility that the stranding in the Bahamas, and other strandings, could foretell similar injuries from LFA sonar is very troubling. It would be more protective of marine mammals to adopt the plaintiffs' experts' more conservative approach to uncertainty and not deploy LFA sonar unless and until further scientific research rules out a similar impact from LFA sonar. The law is clear, however, that when qualified experts on both sides reach carefully reasoned but different conclusions, the Court must defer to the agency's experts: "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

In conclusion, while the Court is concerned about potential dangers of LFA operated at levels below 180 dB, on this record, plaintiffs have not shown that they are likely to prevail on their argument that adoption of the 180 dB threshold was arbitrary and capricious, even in light of the stranding in the Bahamas and other mass strandings. Qualified experts, many of whom are not Navy employees but researchers at major scientific institutions such as Woods Hole, adopted the 180 dB threshold based on reasonable original research and review of the literature. While plaintiffs' qualified scientists reach different conclusions in an area of scientific uncertainty and legitimate disagreement among experts, the Court is not empowered to adopt their views in lieu of the reasonable views of defendants' qualified experts.

B. Marine Mammal Protection Act

"Take" is defined as "to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect or kill, any marine mammal." 50 C.F.R. § 216.3;16 U.S.C. § 1362(13). The definition of "take" includes any negligent or intentional act which results in disturbing or molesting a marine mammal. 50 C.F.R. § 216.3.

The MMPA defines "harassment" as "any act of pursuit, torment or annoyance" that:

(i) has the potential to injure a marine mammal or marine mammal stock in the wild; or

(ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering.

16 U.S.C. § 1362(18)(A). Harassment as defined in subsection (i) is referred to as Level A harassment. 16 U.S.C. § 1362(18)(B). Harassment as defined in subsection (ii) is referred to as Level B harassment. 16 U.S.C. § 1362(18)(C).

Citizens of the United States who engage in a specified activity other than commercial fishing within a specified geographical region may petition the Secretary to authorize the incidental, but not intentional, taking of small numbers of marine mammals within that region. 16 U.S.C. § 1371(a)(5)(A). Such authorization is limited to a period of not more than five consecutive years. Id. The Secretary "shall allow" the incidental taking if the Secretary finds that "the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species of stock for taking for subsistence uses . . . ." Id. If the Secretary allows the incidental taking, the Secretary also must prescribe regulations setting forth: (i) permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses; and (ii) requirements pertaining to the monitoring and reporting of such taking. Id.

Thus, to receive a "small take" authorization, an activity must: (i) be limited to a "specified geographical region," (ii) result in the incidental take of only "small numbers of marine mammals of a species or population stock," and (iii) have no more than a "negligible impact" on species and stocks. In addition, in issuing an authorization, the Secretary must: (iv) provide for the monitoring and reporting of such takings, and (v) prescribe methods and means of effecting the "least practicable adverse impact" on species and stock and their habitat. 16 U.S.C. § 1371(a)(5)(A).

There is no private right of action under the MMPA. Hawaii County Green Party v. Clinton, 124 F. Supp.2d 1173, 1190 (D.Haw. 2000) (citing Didrickson v. U.S. Dep't of Interior, 982 F.2d 1332, 1338 (9th Cir. 1992)). Citizens challenging actions done under the MMPA must sue under the APA. Id. Therefore, actions challenged under the MMPA are reviewed under the APA "arbitrary and capricious" standard.

Plaintiffs argue that the Final Rule*fn2 violates the MMPA in four ways. First, they contend that the Final Rule is not limited to a specified geographical region. Second, they argue that the Final Rule uses an improper definition of "small numbers." Third, they claim that the Final Rule uses an improper definition of "harassment." Finally, plaintiffs argue that the Final Rule will have more than a negligible impact on marine mammals.

1. Specified Geographical Region

The Final Rule authorizes incidental taking by Level A and Level B harassment of mysticete whales (whales without teeth), odontocete whales (whales with teeth), and pinnipeds (seals, sea lions, fur seals, and walruses) in 15 different biomes, divided into numerous provinces and subprovinces. 50 C.F.R. § 216.180. Plaintiffs argue that the "provinces" identified by NMFS are gargantuan in scale and far too large to meet the MMPA's requirement of a "specific geographical region." 16 U.S.C. § 1371(a)(5)(A). Defendants argue, on the other hand, that there is no requirement in either the statute or the regulations that the specified geographic regions must be small, as long as they are no larger than necessary to accomplish the specified activity.

In reviewing the NMFS' interpretation of the MMPA, the Court must first determine whether Congress has directly spoken to the precise question at issue. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. The Court "must reject administrative constructions which are contrary to clear Congressional intent." Id. at 843 n. 9. If Congress has not directly addressed the precise question at issue, the court may not simply impose its own construction of the statute, but must determine whether the agency's answer is based on a permissible construction of the statute. Id. at 843. "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 843 n. 11.

If Congress has expressly delegated authority to elucidate a specific provision of the statute by regulation, those regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Id. at 843-44. If the legislative delegation to an agency on a particular question is implicit rather than explicit, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Id. at 844.

The only language in the legislative history that addresses the "specified geographic region" requirement provides:

H.R. Rep. No. 97-228 (1981), reprinted in 1981 U.S.C.C.A.N. 1458, 1981 WL 21352 at **1469-70. The Code of Federal Regulations defines "specified geographical region" as "an area within which a specified activity is conducted and which has similar biogeographic characteristics." 50 C.F.R. § 216.103.

Initially, NMFS' proposed rule divided the world's oceans into sixteen regions. See 66 Fed. Reg. 15390 (2001) (proposed 50 C.F.R. § 216.180). At that time, NMFS explained that:

NMFS believes that the regions described in this proposed rule are in keeping with Congress' legislative intent in enacting this provision. Although SURTASS LFA sonar requires fairly large geographic regions because of the Navy's need to deploy the system on a world-wide basis, these areas have been selected so as to retain similar biological characteristics within each region. As a result, NMFS believes that these areas are large enough to accomplish the specified activity without being so large that the effects on marine mammals will not be substantially the same.
It should be noted that the regions described in this proposed rule differ from those contained in the Navy's original application and described in the ANPR. Based on a suggestion made by NMFS in the ANPR, the U.S. Navy revised its original proposal for 10 regions to one that proposes to adopt, with modification, the United Nation Food and Agriculture Organization's (FAO) division of the world's oceans into 16 distinct areas . . . .

66 Fed. Reg. 15378. NMFS then received objections that this division of the world's oceans into sixteen regions did not meet the requirement of the MMPA for a "specified geographical region." 67 Fed. Reg. 46768 (2002). NMFS agreed that the use of those 16 regions violated its own definition of "specified geographical region" as "an area within which a specified activity is conducted and which has certain biogeographic characteristics." Id. (citing 50 C.F.R. § 216.103.) NMFS agreed that "the 16 areas designed in the proposed rule document were not based on biogeographic characteristics as specified in the definition, but were based on other considerations by the U.N. Food and Agricultural Organization." Id.

NMFS then adopted its current approach of dividing the oceans into 15 biomes, and 54 provinces within those biomes, as designed by Longhurst (1998). Id. NMFS stated that it believed that this approach met the statutory definition because "a biome is the most likely geographic region to contain the majority of a specific marine mammal stock, especially those that are migratory." Id.

Id. at 46768-69. "These provinces and biomes effectively delineate the area wherein discrete population units reside thereby allowing NMFS to analyze impacts from SURTASS LFA sonar on a species and/or stock basis." Id. at 46769.

Plaintiffs object that the biomes and provinces identified by NMFS are still far too large. Plaintiffs have provided a map, attached as Exhibit A to their motion, showing the very large size of some of these provinces. According to plaintiffs, Province 60 is larger than the continental United States and encompasses six million square miles of open ocean. The Court notes that Province 66 covers the entire Pacific coast from roughly Cabo San Lucas at the southern tip of Baja California to the Canadian border. Plaintiffs argue that if "it would be inappropriate to identify the entire Pacific coast of the North American Continents as a specified geographical region," H.R. Rep. No. 97-228 (1981), reprinted in 1981 U.S.C.C.A.N. 1458, 1981 WL 21352 at **1469-70, then surely an area twice the size of the United States violates the MMPA.

Defendants argue that the specified regions need not be small, but they should not be larger than necessary to accomplish the specified activity. (Hollingshead Decl. ¶ 19.) Here, fairly large areas were needed in order for a SURTASS LFA sonar mission to remain within one, or at most two specified geographic regions. (Id.) NMFS felt that it had three choices: (1) deny the requested authorization because Naval operations could not, and should not, be confined to a single biogeographic area; (2) issue up to 54 sets of regulations so that each set of regulations would be effective in only one area; or (3) issue a single set of regulations and then issue a Letter of Authorization designating which areas a single ship would operate within in any single year. Id. NMFS chose the third alternative as an efficient way to comply with the requirements of the MMPA. Id. Choosing smaller regions would not have worked because NMFS had to make the geographic regions big enough to accomplish the specified activity. Id. ¶ 20. LFA can be heard at very large distances from the vessel; plaintiffs acknowledge that the LFA sonar has a sound pressure level of approximately 140dB more than 400 miles from the vessel. Id. In addition, "LFA sonar in most cases does not transmit equitably throughout the ocean but has a narrow ray path that tends from its origin towards the ocean bottom (below the habitation zone of marine mammals) and reflects back towards the surface and back down again with its second and third reflection at the surface upwards of 100Km (54nm) and 150 km (81nm), respectively, from the vessel." Id. "Therefore, smaller geographic regions would be functionally inappropriate, as sounds could easily transmit across a number of them." Id. Defendants also point out that smaller geographic units are not necessarily geographically stable; some, for instance, may change during an El Niño period. (Hollingshead Decl. ¶ 22.)

Plaintiffs' expert Rodney M. Fujita, who has a Ph.D. in marine ecology, attests that the Longhurst biomes are not particularly useful for estimating biological impacts on specific populations of marine mammals or other organisms. (Fujita Decl. ¶ 7.) According to Fujita, the provinces identified by NMFS are so large that each one contains many diverse habitats, species assemblages, and levels of productivity. (Id. ¶ 8.) "Even if NMFS' purpose in creating very large biogeographical provinces was to ensure that they contain whole stocks of migratory marine mammals, the boundaries are somewhat biologically arbitrary, failing to correspond to population distributions of gray whales, blue whales, and other species." (Id. ¶ 12.) Fujita particularly notes that:

to ensure that marine mammal impacts are substantially the same in a biogeographic area, it is necessary to consider the effects of LFA on smaller areas where marine mammals congregate to feed, breed, and rear their young. Disruption of communication by LFA signals may be especially harmful in such areas.

(Id.) Fujita concludes that:

The biogeographic biomes and provinces defined by NMFS do not have homogeneous ecological or biogeographical characteristics. Each province contains many distinctive habitats and biogeographic subdivisions, some of which may be vitally important to marine mammals and others less important. Thus, these biomes and provinces are not consistent with the intent of the MMPA to limit permitted activities to distinct biogeographic areas with similar characteristics.

(Id. ¶ 13.)

NMFS acknowledges in the Final Rule that the biomes and provinces were not chosen because of their specific relevance to marine mammals. 67 Fed. Reg. at 46768-69. NMFS stated, however, that "it is the best scientific application available for designating specified geographic regions because no biogeographic concept has been designed for marine mammals . . . ." Id. at 46769; see also Hollingshead Decl. ¶ 21. Fujita does not dispute this point.

Defendants contend that to the extent scientific information permits, the specified geographical regions have been drawn so that the effects on marine mammals in a specified region are substantially the same. (Hollingshead Decl. ¶ 24.) Anticipated effects on marine mammals from LFA sonar noise will be based primarily on their hearing anatomy and on water mass characteristics (such as water temperature), which influence the way in which sonar sound propagates. Id. Defendants fail to explain how the enormous provinces set forth in the Final Rule have similar biogeographic characteristics, however. Even water temperature obviously will be dramatically different within provinces that stretch for thousands of miles.

Given the enormous scope of the SURFASS LFA system, the geographic areas need to be quite large. It is troublesome that NMFS has chosen large areas that undisputedly do not have homogeneous ecological or biogeographical characteristics. Plaintiffs have established serious issues with respect to whether NMFS violated the MMPA by choosing such undifferentiated geographical areas, particularly in light of the failure to carve out sufficient areas of special biological importance for feeding, breeding, and the like that lie within these large areas and make them less homogenous. See Section II.B.5 below. Plaintiffs have not presented any evidence, however, disputing NMFS' conclusion that no alternative biogeographical scheme currently exists for marine mammals that can readily be applied here. Thus, plaintiffs have not shown a likelihood of success on their claim that NMFS acted in an arbitrary and capricious manner in choosing the specified geographical regions identified in the Final Rule. Although the NFMS' choices may be flawed, on this record they do not appear to be so flawed that the Court will likely invalidate them as arbitrary and capricious. At most, plaintiffs have raised a serious question on the merits.

2. Small Numbers

Plaintiffs also argue that NMFS is violating the MMPA by using an erroneous definition of "small numbers" that conflicts with the plain language of the MMPA. Under the MMPA, the Secretary can authorize the incidental taking of small numbers of marine mammals if the Secretary finds that the total amount of such taking will have a negligible impact on those species or stock of marine mammals. 16 U.S.C. § 1371(a)(5)(A). The MMPA does not define "small numbers," but NMFS has promulgated a regulation which provides that "[s]mall numbers means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock." 50 C.F.R. § 216.103. Plaintiffs contend that this definition dilutes the stringent protections for marine mammals imposed by Congress by improperly merging two separate statutory requirements. Under the MMPA, the Secretary can only authorize the taking of "small numbers" of marine mammals and must ensure that the total amount of the taking has only a "negligible impact" on any species or stock of marine mammals. In other words, plaintiffs argue that even if a particular species has a large population and thus it would require a fairly large number of takes to have a greater than negligible impact on that species, the Secretary is still limited to authorizing incidental takes of only a small number of such marine mammals.

a. Statute of Limitations

Defendants' first argument is that plaintiffs' challenge to the regulation is time-barred. Civil actions against the United States are subject to a six-year statute of limitations, except in certain circumstances not relevant here. 28 U.S.C. § 2401(a). The regulation at issue, 50 C.F.R. § 216.103, was promulgated in final form on May 18, 1982, more than twenty years ago. 47 Fed. Reg. 21255 (1982).

The Ninth Circuit has held that a challenge to a mere procedural violation in the adoption of a regulation or other agency action must be brought within six years of the decision. Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991). Similarly, policy-based facial challenges to the government's decision must also be brought within six years of the decision. Id.

If, however, a challenger contests the substance of an agency decision as exceeding constitutional or statutory authority, the challenger may do so later than six years follow the decision by filing a complaint for review of the adverse application of the decision to the particular challenger. . . . The government should not be permitted to avoid all challenges to its actions, even if ultra vires, simply because the agency took the action long before anyone discovered the true state of affairs. . . . [Thus,] a substantive challenge to an agency decision alleging lack of agency authority may be brought within six years of the agency's application of that decision to the specific challenger.

Id. at 715-16 (emphasis in original).

Here, plaintiffs challenge the definition of "small numbers" that is contained in 50 C.F.R. § 216.103 on the ground that it is ultra vires because it flatly contradicts the statutory language of the MMPA. Under Wind River, plaintiffs are time-barred from challenging the regulation itself, but are not time-barred from challenging the application of that regulation to them, unless it was first applied to them more than six years ago. Wind River, 946 F.2d at 715-16 (noting in particular the discussion of Oppenheim v. Coleman, 571 F.2d 660 (D.C. Cir. 1978)). Defendants argue that at least two of the plaintiffs challenged NMFS' issuance of a small take authorization to the Navy under the MMPA in 1994, more than six years ago, without raising a challenge to the definition of "small take," citing NRDC v. United States Dept. of the Navy, 857 F. Supp. 734 (C.D. Cal. 1994) (vacated by consent decree). The Court need not consider whether those particular plaintiffs are time-barred from challenging the application of the "small numbers" definition here, because defendants make no argument that the remainder of the plaintiffs also filed similar lawsuits more than six years ago without raising the issue. Thus, even if certain plaintiffs are time-barred from making this argument, the remainder of the plaintiffs are not.

Accordingly, the Court finds that plaintiffs' challenge to the application of the definition of "small numbers" to the ...

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