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NATURAL RESOURCES DEFENSE COUNCIL, INC. v. EVANS

August 26, 2003

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL., PLAINTIFFS,
v.
DONALD EVANS, ET AL., DEFENDANTS



The opinion of the court was delivered by: Elizabeth Laporte, Magistrate Judge

OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
In this environmental litigation, the parties' cross-motions for summary judgment are currently before the Court. For the reasons set forth below, each parties' motion for summary judgment is granted in part and denied in part.

I. INTRODUCTION

Plaintiffs, various environmental organizations and a concerned individual, seek a permanent injunction against federal officials to prevent the United States Navy's peacetime use of a low frequency sonar system for training, testing and routine operations.*fn1 This new technology, Surveillance Towed Array Sensor System ("SURTASS") Low Frequency Active Sonar ("LFA"), sends out intense sonar pulses at [ Page 2]

low frequencies that travel hundreds of miles in order to timely detect increasingly quiet enemy submarines. Plaintiffs charge that the National Marine Fisheries Service ("NMFS") improperly approved use of LFA in as much as 75% of the world's oceans in violation of the Marine Mammal Protection Act ("MMPA"), the Endangered Species Act ("ESA"), and the Administrative Procedure Act ("APA"). Plaintiffs also claim that the Navy participated in the ESA violation and issued an inadequate Environmental Impact Statement ("EIS")*fn2 in violation of the National Environmental Policy Act ("NEPA") and the APA.*fn3 Plaintiffs claim that these violations will cause irreparable injury by harassing, injuring and killing marine mammals and other sea creatures with sensitive hearing, many of them rare and endangered, including whales, dolphins, seals, sea turtles and salmon. Defendants counter that they have fully complied with the applicable laws. Defendants argue further that enjoining the peacetime use of LFA sonar would harm national security because training and testing is necessary for military readiness.

On October 31, 2002, the Court granted plaintiffs' motion for a preliminary injunction. After ordering the parties to engage in a settlement conference regarding the precise language of the injunction, the Court issued a preliminary injunction on November 15, 2002, based on the resulting agreement.

Both parties filed cross-motions for summary judgment on April 15, 2003. On May 29, 2003, the Pacific Legal Foundation filed a motion to appear as amicus curiae and an amicus brief in support of defendants. On June 16, 2003, this Court granted PLF's motion to appear as amicus curiae. On June 24, 2003, the parties filed supplemental briefing on the admissibility of extra-record documents. On June 30, 2003, the Court heard the parties' cross-motions for summary judgment. The Court now decides these motions.

In summary, NMFS and the Navy undertook valuable research into the potential impact of LFA on whales, and made commendable progress in complying with these statutes. Nonetheless, the Court concludes that their efforts did not comply in certain important respects with these statutes, which are [ Page 3]

designed to protect the oceanic environment and safeguard the whales, dolphins and other marine life within it. The Court also concludes that plaintiffs have shown the likelihood of irreparable harm. The Court therefore must balance the competing interests of the parties in deciding whether to issue injunctive relief and what the contours of any injunction should be.

The Court recognizes and respects the very important interests at stake on both sides of this case and, after reviewing the extensive record, believes that both can be safeguarded. On the one hand, there can be no doubt that the public interest in military preparedness and protection against enemy submarine attacks through early detection is of grave importance. It is true that only peacetime use of this new sonar system is at issue; the Navy is free to use the system without restriction in time of war or heightened threat. At the same time, the Court fully accepts and defers to the Navy's assessment that it needs to train and test this new sonar system during peacetime in a variety of oceanic conditions in order to be ready to address threats from modern submarines employed by potentially hostile powers.

On the other hand, there can also be no doubt that the public interest in protecting the world's oceans and the sea creatures that depend upon the oceanic environment to survive is also of the highest importance. The Marine Mammal Protection Act, for example, reflects the public's profound interest in safeguarding whales, dolphins and other magnificent mammals that still live in the ocean. Unfortunately, the populations of many of these creatures, once abundant, have shrunk, and some are on the verge of extinction. Other precious species, like certain salmon and sea turtles, also are in peril of disappearing from the earth forever. The public has a strong interest in minimizing, as much as possible, any disruption or injury to these creatures from exposure to the extremely loud and far-traveling naval sonar system. Public concern has been heightened by incidents where exposure to another kind of Navy sonar has led to lethal strandings of whales on the beach, as in the Bahamas in 2000.

Based on the record in these proceedings, the Court believes that the public interest in both military preparedness and protection of marine life can be reconciled through a carefully tailored injunction that allows the Navy to meet its needs for peacetime training and testing, while also providing reasonable safeguards for marine mammals and other sea animals. As explained more fully below, the Court's injunction will permit the Navy to train and test LFA sonar in a wide range of oceanic conditions as needed, while restricting it from operating in certain sensitive areas when marine mammals are particularly abundant [ Page 4]

there. In particular, the injunction will extend the coastal buffer zone beyond the current twelve miles to include more of the continental shelf in the great majority of coastlines where the record shows that the Navy need not operate closer to shore. The injunction will also require the Navy to avoid certain areas of the deep ocean during seasons when data on marine mammals and other endangered species such as sea turtles shows that they are migrating, breeding, feeding or otherwise clustering there. The evidence in this case shows that this kind of data is available to enable the Navy to refine its operations in order to afford reasonable protections to marine life, while still meeting its testing and training needs. Indeed, the Court appreciates that, in response to the preliminary injunction issued earlier, NMFS and the Navy have decided to engage in further analysis of this kind of data for potential use in planning routes that minimize sea creatures' exposure to the sonar. Further, where the Navy needs to operate close to shore in areas where sea life tends to be abundant and where conditions may make strandings of whales more likely, whenever feasible the Navy shall use additional measures to check for the presence of marine mammals before activating the sonar. In sum, the Navy and NMFS can fully comply with environmental laws and also meet the need to test and train with this new type of sonar.

II. STANDARD OF REVIEW

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. "Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983). The Court's role is to:

consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency. The final inquiry is whether the Secretary's action followed the necessary procedural requirements. [ Page 5]
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Moreover, "[w]hen 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).
Where agency action is challenged on the record as arbitrary, capricious, and in violation of the procedures required by law, summary disposition is appropriate. Summary judgment is also appropriate in cases involving the issue of whether an EIS adequately explains environmental consequences of a proposed agency action.
Resources Ltd., Inc. v. Robertson, 789 F. Supp. 1529, 1534 (D. Mont. 1991) (citing Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D.Wash. 1988) and Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir. 1987)).

III. EXTRA-RECORD DOCUMENTS

"Judicial review of an agency decision typically focuses on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court." Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996). The Ninth Circuit

has only allowed extra-record materials: (1) if necessary to determine "whether the agency has considered all relevant factors and has explained its decision," (2) "when the agency has relied on documents not in the record," or (3) "when supplementing the record is necessary to explain technical terms or complex subject matter." Extra-record documents may also be admitted "when plaintiffs make a showing of agency bad faith."
Id. Each side argues that the other side has improperly sought to supplement the record with material that the Court should not consider. The Court has ruled on the parties' requests to strike extra record material in a separate order also issued today.

IV. RELATIONSHIP BETWEEN NMFS AND THE NAVY

Plaintiffs contend that the administrative record reveals an improperly close collaboration between NMFS and the Navy, instead of the arms-length regulatory relationship needed to enforce federal environmental laws. Plaintiffs point out that the record includes hundreds of communications between the [ Page 6]

principal author of the Final Rule*fn4 at NMFS and employees of the Navy or its consultant, MAI. These communications show that the Navy and its consultant had significant input into the drafting of the Final Rule. (See, e.g., AR 15016, 23897, 24388, 24389; NMFS AR Vol. 18, Doc. 185h at 656-721, 812-881.) In their briefs, plaintiffs appeared to argue that this close cooperation amounted to an improper abdication of NMFS' regulatory duties. The few cases they cited, however, involved the very different situation of undue influence by private parties on government regulators, e.g., Texas Office of Public Utility Counsel v. Federal Communications Commission, 265 F.3d 313, 328 (5th Cir. 2001), not two federal agencies in the same administration. The Court did not find this argument persuasive.

At oral argument, plaintiffs clarified that they do not claim that cooperation between the agencies was itself illegal, but rather view the extent of the Navy's influence on NMFS as the context for violations found in the resulting Final Rule and EIS. The Court declines to draw any overall conclusions from what plaintiffs contend is a pattern of improper influence. Indeed, defendants correctly point out other examples in the record where NMFS differed from the Navy and imposed additional limitations on the use of LFA sonar. (See, e.g., AR 23881; 67 Fed. Reg. 46758, 46784.) Instead, the Court considers each issue on its merits, and only considers comments by NMFS or the Navy contained in the administrative record where they are relevant to explain particular choices or omissions.

V. DISCUSSION

A. Marine Mammal Protection Act

The MMPA was enacted in 1972 to prevent the extinction or depletion of marine mammal stocks as a result of man's activities. 16 U.S.C. § 1361(1). "[S]uch species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population." 16 U.S.C. § 1362(2). The MMPA generally prohibits the taking of marine mammals, with certain statutory exceptions. 16 U.S.C. § 1371(a)(3). "Take" is defined as "to harass, hunt, capture, collect, or kill, or attempt to [ Page 7]

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). [ Page 8]

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 issued by NMFS violates the MMPA in five 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, and fails to set forth sufficient requirements for monitoring and reporting impacts 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 fifteen different biomes, divided into numerous provinces and subprovinces. 67 Fed Reg. 46785-76 (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 [ Page 9]

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:

It is the intention of the Committee that both the specified activity and the specified region referred to in section 101(a)(5) be narrowly identified so that the anticipated effects will be substantially similar. Thus, for example, it would not be appropriate for the Secretary to specify an activity as broad and diverse as outer continental shelf oil and gas development. Rather, the particular elements of that activity should be separately specified as, for example, seismic exploration or core drilling. Similarly, the specified geographical region should not be larger than is necessary to accomplish the specified activity, and should be drawn in such a way that the effects on marine mammals in the region are substantially the same. Thus, for example, it would be inappropriate to identify the entire Pacific Coast of the North American continent as a specified geographical region, but it may be appropriate to identify particular segments of that coast having similar characteristics, both biological and otherwise, as specified geographical regions.
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. 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 [ Page 10]
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. NMFS agreed that the use of those sixteen 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 fifteen biomes, and fifty-four 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.

While admittedly, the Longhurst schematic was designed for plankton, it is the best scientific application available for designating specified geographic regions because no biogeographic concept has been designed for marine mammals and, in general, the distribution of marine organisms at higher trophic levels resembles the general geographic patterns of primary productivity, with the largest aggregations concentrated in coastal areas and zones of upswelling. (Longhurst, 1998).
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. During briefing on the motion for preliminary injunction, plaintiffs provided a map, attached as Exhibit A to their motion, showing the very large size of some of these provinces. According to plaintiffs, Province sixty is larger than the continental United States and encompasses six million square miles of open ocean. Province sixty-six 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 Continent 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 [ Page 11]

of the United States violates the MMPA.

Defendants argue, as they did during briefing on the motion for preliminary injunction, that the specified regions need not be small, but they should not be larger than necessary to accomplish the specified activity. They contend that fairly large areas were needed in order for a LFA sonar mission to remain within one, or at most two specified geographic regions. LFA can be heard at very large distances from the vessel; plaintiffs acknowledge that the LFA sonar has a sound pressure level of approximately 140 dB more than 400 miles from the vessel. In addition, because LFA sonar bounces from the ocean bottom to the surface and back again, with the second and third reflection at upwards of 100 kilometers and 150 kilometers from the vessel, defendants contend that small geographic regions would be functionally inappropriate. 67 Fed. Reg. 46769 (MMPAC 39). Defendants also argue that smaller geographic units are not necessarily geographically stable. Defendants fail to explain how the enormous provinces set forth in the Final Rule have similar biogeographic characteristics, however. Even water temperature will be dramatically different within provinces that stretch for thousands of miles.

Plaintiffs also argue that Congress intended that a "specified geographic region . . . should be drawn in such a way that the effects on marine mammals in the region are substantially the same." H.R. Rep. No. 97-228 (1981), reprinted in 1981 U.S.C.C.A.N. 1458, 1981 WL 21352 at **1469. The Code of Federal Regulations similarly 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. Plaintiffs interpret this language to require that the abundance and distribution of particular marine mammals must be relatively uniform within any given specific geographical area. At the preliminary injunction stage, the Court rejected this argument, but on further reflection, the Court agrees with the plaintiffs that the effects of an activity on marine mammals cannot be substantially the same throughout a specified geographic region unless the distribution of marine mammals in that region is relatively uniform. For example, if LFA is deployed in a sparsely populated area, the effects are unlikely to be substantially the same as they would be if it were deployed in an area that contained marine mammal breeding grounds.

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, and attests to what he believes is an alternative and preferable method. The [ Page 12]

Court cannot consider the Fujita declaration, however, for the reasons stated in its Order on Parties' Requests to Strike Extra Record Documents Submitted in Connection with Cross-Motions For Summary Judgment.

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. 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. The Court agrees with defendants that the problem with Fujita's belated argument in his declaration is that there is no suggestion of his theory in the administrative record, and no evidence that his theory could have been considered at the time the Final Rule was adopted. The Final Rule itself states that "[n]o comments were received that provided information or data on an alternative approach[.]" 67 Fed. Reg. 46768. Accordingly, plaintiffs' attempt to now articulate an alternative approach has no relevance to whether the adoption of the Final Rule was arbitrary and capricious based on the information available at the time it was adopted.

Plaintiffs are on stronger ground when they assert that because the Final Rule contains no limitation on how many provinces may be involved in any given deployment of the LFA system, the Final Rule in fact imposes no specific geographical limitation on LFA's deployment at all. NMFS has conceded that "no world-wide authorizations have previously been granted." 66 Fed. Reg. 15378. NMFS acknowledges in the Final Rule that "[t]he total area that would be available for SURTASS LFA sonar to operate includes about 70-75% of the world's oceans." 67 Fed. Reg. 46761. NMFS noted, however, that:

this in no way equates to affecting 70-75 percent of the world's ocean area. The current authorization is for only two SURTASS LFA sonar vessels — normally one in the Atlantic Ocean/Mediterranean Sea and the other in the Pacific/Indian ocean.
Id.*fn5 The Navy is "required to notify NMFS annually as to which provinces or subprovinces it intends to operate SURTASS LFA sonar system in the upcoming year, and the extent of the take (by harassment) it expects to encounter during the mission." 67 Fed. Reg. 46769; see also id. at 46788 (50 C.F.R. § 216.187). Thus, according to defendants, in practice the Navy will be limited to operating in certain specified geographical regions each year. [ Page 13]

Plaintiffs are correct, however, that there is nothing in the Final Rule that prevents the Navy from applying for authorization to deploy LFA in all fifty-four provinces in a particular year, or that would prevent NMFS from granting such world-wide authorization. The regulations only require the Navy to specify "[t]he date(s), duration, and the specified geographical region where the vessel's activity will occur." Id. at 46788 (50 C.F.R. § 216.187). They do not limit the number of geographical regions in which the Navy may seek to operate under any given Letter of Authorization. Similarly, the regulations require each Letter of Authorization to set forth the "[a]uthorized geographical areas for incidental takings," but do not set forth a limit on the number of geographical areas in which the Navy may be authorized to operate. Id. (50 C.F.R. § 216.188). Thus, the regulations do not prevent the Navy from seeking a worldwide Letter of Authorization, nor do they prevent NMFS from granting world-wide authorization. By limiting small take permits to "specified geographic regions," Congress did not intend that worldwide small take permits could be granted.

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 not established, however, that NMFS failed to consider any alternative biogeographical scheme that existed at the time the Final Rule was adopted. While plaintiffs argue that defendants should have created its own scheme in the absence of existing ones, defendants have a strong argument that it would have been impractical to do so given the limited scientific knowledge about many areas of the ocean, beyond the better-studied continental shelf, and their lack of stability. Thus, the Court finds that NMFS did not act in an arbitrary and capricious manner in choosing the specified geographical regions identified in the Final Rule, provided that NMFS takes the additional step of carving out locations within those regions, during particular seasons, where known high concentrations of marine mammal activities in those areas would otherwise render the effects on marine mammals throughout the region very disparate.

In particular, the inability of the Longhurst model to ensure that the effects on marine mammals within the regions are substantially the same, as Congress intended, heightens the need for strict compliance with other provisions of the MMPA designed to protect marine mammals. The designation of additional "off-limits" areas within the geographical regions, such as extension of the coastal exclusion zone where [ Page 14]

possible, and designating more areas to avoid during seasons when marine mammals are particularly abundant or vulnerable is necessary to ensure more uniformity in effects on marine mammals within the specified geographical regions, as Congress intended.

Plaintiffs have shown, however, that the Final Rule does not preclude the Navy from applying to proceed in all fifty-four provinces in a given year, nor does it preclude the NMFS from authorizing worldwide deployment of LFA. The Navy has not indicated that it intends to operate in all fifty-four provinces simultaneously, and with only two ships, it is not currently capable of doing so. As written, however, the Final Rule does not limit the Navy's operations to a specified geographic region. Thus, plaintiffs have shown that the Final Rule violates the MMPA by failing to limit the take of marine mammals to a "specified geographic region." In order to comply with the MMPA, the Final Rule must authorize the Navy to operate in only a limited number of geographical regions at any given time. Accordingly, plaintiffs' motion for summary judgment on this issue is granted, and defendants' motion for summary judgment on this issue is denied.

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. [ Page 15]

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 following 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 its application in this particular situation 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 parties refer to that case as the Shipshock case. 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 [ Page 16]

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 Final Rule is not time-barred, and defendants' motion for summary judgment on that issue is denied.

b. Res Judicata/Collateral Estoppel

Defendants also argue, in a footnote to their motion for summary judgment, that plaintiffs are precluded from challenging defendants' definition of "small numbers" on res judicata and collateral estoppel theories, as a result of the litigation in the Shipshock case. Defendants argue that NRDC and the Humane Society were both plaintiffs in the Shipshock case and could have challenged the "small numbers" definition in that case. Defendants also argue that the remainder of the plaintiffs in this case are also bound by the failure of the NRDC and the Humane Society to challenge the "small numbers" definition, even though they were not parties to that litigation, because they share a sufficient commonality of interests with NRDC and the Humane Society that they should be considered in privity with them.

Plaintiffs first argue that this defense was waived because it was not included in defendants' answer. The Ninth Circuit has held, however, that a defendant's failure to raise an affirmative defense in its answer does not necessarily waive the defense. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). The defense may be raised later if the delay in raising it does not prejudice the plaintiff. Id. Plaintiffs make no argument that they have been prejudiced by defendants' failure to raise their res judicata/collateral estoppel defense in their answer. Moreover, the Ninth Circuit suggests that failure to raise a res judicata defense in the answer can never prejudice a plaintiff because, if applicable, the defense would have been dispositive at the time the action was filed. Id. Accordingly, the Court finds that defendants did not waive their res judicata/collateral estoppel defense by failing to raise it in their answer.

Plaintiffs also argue that there can be no res judicata/collateral estoppel effect from the Shipshock case on the issue of the "small numbers" definition because that case was resolved by consent decree, rather than by final judgment. The Supreme Court has held that "[i]n most circumstances, it is recognized that consent agreements ordinarily are intended to preclude further litigation on the claim presented but are not intended to preclude further litigation on any of the issues presented[,]" unless it is clear that the parties [ Page 17]

intended their agreement to have such an effect. Arizona v. California, 530 U.S. 392, 414 (2000). This conclusion follows from the doctrine that issue preclusion generally applies only where the issue has been actually litigated and determined. Id. Thus, although res judicata (claim preclusion) may apply, collateral estoppel (issue preclusion) does not apply unless the consent decree indicates that the parties intended that it should have such an effect.

Res judicata applies when there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between the parties. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). The doctrine of res judicata "bars relitigation of all grounds of recovery that were asserted, or could have been asserted, in a previous action between the parties, where the previous action was resolved on the merits." Id. at 1078 (quoting United States ex rel. Barajas v. Northrop Corp., 147 F.3d 905, 909 (9th Cir. 1998)). Identity of claims exists when two suits arise from the same transactional nucleus of facts. Id. at 1078. The facts of Shipshock are entirely different from the facts of the present case. Although both cases involve MMPA challenges to Navy programs, the programs and regulations at issue in the two cases are entirely different. Moreover, Wind River permits plaintiffs' current challenge to the "small numbers" definition only on an "as applied" basis, in the context of the Final Rule. As the Final Rule was not issued until after Shipshock was decided, the current challenge could not have been raised in Shipshock. As there is no identity of claims, there can be no res judicata.

Collateral estoppel (issue preclusion) applies only when "an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment." Arizona v. California, 530 U.S. at 414. Defendants acknowledge in their motion that NRDC and the Humane Society did not contest the definition of "small numbers" in the Shipshock case. (Defendants' motion for summary judgment at 27 n. 15.) Thus, they concede that the issue was not actually litigated. Moreover, as Shipshock was resolved by a consent decree, it has no collateral estoppel effect unless the consent decree so indicates. Arizona v. California, 530 U.S. at 414. There is no evidence that the Shipshock consent decree intended to preclude NRDC and the Humane Society, or anyone else, from initiating future litigation over the definition of "small numbers." In fact, in the Shipshock consent decree, "plaintiffs reserve the right to challenge any future regulations . . . under all applicable federal laws." NRDC v. United States Dept. of the Navy, 1994 WL 715704 at *2 (C.D. Cal. 1994). Accordingly, the doctrine of collateral estoppel also [ Page 18]

does not bar the plaintiffs from bringing their challenge on the definition of "small numbers."

Defendants' motion for summary adjudication that plaintiffs are barred from challenging the definition of "small numbers," pursuant to the doctrines of res judicata and collateral estoppel, is denied.

c. Whether NMFS Acted Outside the Scope of its Authority
The MMPA specifically authorizes the Secretary to prescribe regulations for the taking of marine mammals "as he deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in section 1361 of this title." 16 U.S.C. § 1373. Section 1361 provides, in relevant part:

The Congress finds that —

(1) certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities;
(2) such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.
(6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.
16 U.S.C. § 1361.

Section 1371(a)(5)(A) of the MMPA permits the Secretary to authorize the incidental take of "small numbers of marine mammals of a species or population" 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. . . ." 16 U.S.C. § 1371(a)(5)(A). The plain language indicates that "small numbers" is a separate requirement from "negligible impact." To treat them as identical would appear to render the reference to "small numbers" mere surplusage. The Ninth Circuit has held that "statutes should not be construed in a manner which robs specific provisions of independent effect" and noted that it has "consistently invoked this [ Page 19]

rule to reject interpretations that would render a statutory provision surplusage or a nullity." County of Santa Cruz v. Cervantes (In re Cervantes), 219 F.3d 955, 961 (9th Cir. 2000). See also Nevada v. Watkins, 939 F.2d 710, 715 (9th Cir. 1991) (quoting Beisler v. Commissioner, 814 F.2d 1304, 1307 (9th Cir. 1987)) ("It is a fundamental rule of statutory construction that `[w]e should avoid an interpretation of a statute that renders any part of it superfluous and does not give effect to all of the words used by Congress.'").

Furthermore, Congress made its intent clear when it added this section to the MMPA in 1981. The legislative history demonstrates that Congress intended that "small numbers" and "negligible impact" serve as two separate standards. The legislative history provides:

The taking authorized under these new provisions is the taking of small numbers of marine mammals. The Committee recognizes the imprecision of the term `small numbers', but was unable to offer a more precise formulation because the concept is not capable of being expressed in absolute numerical limits. The Committee intends that these provisions be available for persons whose taking of marine mammals is infrequent, unavoidable, or accidental.
It should also be noted that these new provisions of the Act provide an additional and separate safeguard in that the Secretary must determine that the incidental takings of small numbers of marine mammals have a `negligible' impact upon the species from which such takings occur. This additional test is meant to serve as a separate standard restricting the authority of the Secretary. The term `negligible' is intended to mean an impact which is able to be disregarded. In this regard, the Committee notes that Webster's dictionary defines the term `negligible' to mean `so small or unimportant or of so little consequence as to warrant little or no attention.' Unless a particular activity takes only small numbers of marine mammals, and that taking has a negligible impact on the species, the new provisions of sections 101(a)(4) and (5) are not applicable to that activity.
H.R. Rep. No. 97-228 (1981), reprinted in 1981 U.S.C.C.A.N. 1458, 1981 WL 21352 at **1469 (emphases added). These new standards strengthened the already conservative approach of the statute. When the House Committee on Merchant Marines and Fisheries originally sent the bill that became the MMPA to the House floor in 1971, it noted that:
In the teeth of . . . the certain knowledge that these animals are almost all threatened in some way, it seems elementary common sense to the Committee that legislation should be adopted to require that we act conservatively — that no steps be taken regarding these animals that might prove to be adverse or even irreversible in their effects until more is known. As far as could be done, we have endeavored to build such a conservative bias into the legislation here presented.
H.R. Rep. No. 92-707 (1971), reprinted in 1972 U.S.C.C.A.N. 4144, 4148, 1971 WL 11285 at *4148. [ Page 20]

Plaintiffs' argument that the "small numbers" and "negligible impact" standards have been improperly conflated was raised by others in the comments to the Final Rule. In response, NMFS stated:

NMFS does not believe that the term can be expressed as an absolute number or percentage or be defined in any absolute terms. However, NMFS feels that by defining "small numbers" to mean a portion of a marine mammal species or stock whose taking would have a negligible impact, an upper limit is placed on the term, and the phrase effectively implements the Congressional intent. . . .
67 Fed. Reg. 46764. By conflating the two terms, however, NMFS has eliminated the ability of the two terms to act, as intended, as separate checks on the Secretary's authority. For example, where populations of marine mammals are large, the number of mammals taken before there is a greater than negligible impact on the population may also be large. The statute, however, expressly requires that the number of marine mammals that may be taken incidentally must be small. NMFS' contention that the "greater than negligible impact" threshold is an upper limit fails to recognize that this definition of "small numbers" improperly permits the Secretary to allow incidental takes that are quite large in number.

For example, in the Final Rule, one comment expressed concern that the takings permitted are not "small" and that more than 16% of the blue whales in the eastern North Atlantic, more than 10% of the beaked whales in the Mediterranean Sea, and more than 12% of the elephant seals in the eastern North Pacific will be affected. 67 Fed. Reg. 46764. In response, NMFS did not deny this possibility. Id. Instead, it noted that this was the worst case scenario, not the situation that will most likely take place, due to the Navy's likely voluntary avoidance of certain areas in certain seasons where marine mammals are likely to be particularly abundant. Id. NMFS noted that 12.4% of the elephant seals will be affected only if LFA sonar operated in both offshore central California for one mission and offshore Washington on another mission. Id. Yet NMFS acknowledged that under another scenario as many as 18.6% of elephant seals could be affected. Id. NMFS also stated that a more realistic estimate is that 1-2% of stocks would be affected during a single twenty-day mission. Id. at 46765.

Later in the Final Rule, NMFS states:

Short-term incidental harassment levels between 1 and 12 percent and below are considered by NMFS to comply with the MMPA as Level B harassment at this level is unlikely to result in significant effects on any species' or stock's reproduction or survival. Therefore, in order for incidental takings by SURTASS LFA sonar under this regulation to be negligible, takings by SURTASS LFA sonar operations during the effective time period (1 year) of any LOA issued for such Navy operations must not exceed 12 percent of any marine mammal stock. [ Page 21]
67 Fed. Reg. 46780. NMFS then went on to say that "this 12 percent level should not be interpreted to mean that the Navy will take up to 12 percent of all affected marine mammal stocks." Id. "In most cases, with carefully planned SURTASS LFA sonar missions (e.g., to avoid certain biogeographic provinces during seasons of increased marine mammal abundance), the total annual Level B takes are expected to be significantly less than this level." Id. Nothing in the Final Rule, however, requires the Navy to ensure that takes of marine mammals are at the low end of this wide range of up to 12%.

In order to obtain a Letter of Authorization, the Navy must provide an estimate of the "percentage of marine mammal species/stocks potentially affected in each specified geographic region for the 12-month period of effectiveness of the Letter of Authorization." 67 Fed. Reg. 46788 (50 C.F.R. § 216.187(c)(4)). The Final Rule provides that issuance of each Letter of Authorization will be based on a determination that the number of marine mammals taken by the activity will be small, and will have no more than a negligible impact on the species of stock of affected marine mammals. 67 Fed. Reg. 46788 (50 C.F.R. § 2161.88(c)). Since these two requirements are improperly defined to mean the same thing, however, there is no independent requirement that the take be small, as mandated by Congress.

The default provision of the MMPA is that "no permit may be issued for the taking of any marine mammal." 16 U.S.C. § 1371(a) (emphases added). The intent of Congress is that the taking of even a single marine mammal is to be avoided. Incidental takes permitted under section 1371(a)(5)(A) must be small and have a negligible impact on the affected species or stock of marine mammals. 16 U.S.C. § 1371(a)(5)(A). A definition of "small number" that permits the potential taking of as much as 12% of the population of a species is plainly against Congress' intent.

Defendants argue that any other definition would contradict Congress' pronouncement in the legislative history that "small numbers" is not a concept that can be "expressed in absolute numerical limits." H.R. Rep. No. 97-228 (1981), reprinted in 1981 U.S.C.C.A.N. 1458, 1981 WL 21352 at **1469. The Court does not require defendants to set an absolute numerical limit. It is clear, however, that defendants' current definition, which completely eliminates the separate requirements that only a "small number" of marine mammals be taken, is arbitrary, capricious, and manifestly contrary to the statute and cannot be upheld. While defendants are free to reasonably interpret the meaning of "small numbers," their decision to write this requirement out of the MMPA is flatly inconsistent with the plain language of the statute and is [ Page 22]

entitled to no deference. The Court "must reject administrative constructions which are contrary to clear Congressional intent." Chevron, 467 U.S. at 843 n. 9. To effectuate Congress' intent, "small numbers" and "negligible impact" must be defined so that each term has a separate meaning. Accordingly, plaintiffs' motion for summary judgment is granted on this issue, and defendants' motion for summary judgment is denied.

3. The Final Rule's Definition of "Harassment"

Plaintiffs argue that the Final Rule also uses an illegal definition of "harassment." The MMPA generally prohibits the taking of marine mammals, with certain statutory exceptions. 16 U.S.C. § 1371(a)(3). The MMPA and the regulations promulgated there under define "take" 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. § ...

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