The opinion of the court was delivered by: SAMUEL CONTI, Senior District Judge
PRELIMINARY ORDER DENING PERMANENT INJUNCTION
In arriving at its decision, the Court has considered the evidence
presented at yesterday's hearing and the TRO hearing on Monday including
the administrative record, the arguments of counsel and the briefs
submitted. The following Order of the Court will be succeeded by a more
expansive opinion, but due to the urgency of time, the Court now renders
a judgment on the motion for a permanent injunction.
Plaintiffs seek to invalidate the permit issued by the NFMS that allows
Defendant Stein to conduct sonar research in California waterways.
Plaintiffs allege violations of the National Environmental Policy Act,
the Marine Mammal Protection Act, and the Administrative Procedure Act.
Plaintiffs claim that the type of sonar that Dr. Stein employs and the
manner in which he uses it produces hazardous effects on the Northern
Pacific ecosystem, and in particular against California gray whales. Much
evidence has been presented by the parties as to the potential benefits
for both man and animal as well as the potential harms
that stem from Dr. Stein's activities. The research project at issue is
extremely technical, the expected consequences are debatable, and
its legitimacy is highly controversial. The function of this Court,
however, is not to determine whether Dr. Stein's research is socially
desirable, but merely to arbitrate whether Defendants violated any
Plaintiffs contest the procedure by which the NMFS issued Dr. Stein's
permit. The same Plaintiffs made essentially the same claims last year,
and this Court agreed, ruling that despite the fact that scientific
research generally qualifies for a categorical exemption under NEPA,
public policy concerns required a preliminary investigation into the
environmental impact of the project. Thus, Defendants were ordered to
halt all activities governed by the invalid permit until they conducted
an Environmental Assessment to address Plaintiffs' legitimate concerns
about the possible environmental degradation caused by the research. As
directed, Defendants undertook an Environmental Assessment, a document
that examines whether significant environmental impacts could result from
issuance of the proposed scientific research permit or any of the
alternatives identified as reasonable. The heart of Plaintiffs' claim is
that Defendants either ignored crucial evidence regarding potential
environmental harm or engaged in bad faith in merely paying lip service
to the Court's previous ruling in preparing the Environmental Assessment.
Plaintiffs raise seven claims in their complaint, which we now consider
briefly in turn. One, Plaintiffs allege that Defendants ignored the
general environmental impact of the research project in asserting that
gray whales cannot hear high frequency sonar. However, the EA explicitly
addresses the auditory capabilities of gray whales, including their
sensitivity based on frequency and decibel level. Two, Plaintiffs assert
that Defendants failed to consider the present state of the gray whale
population. However, the EA directly addresses this point as well,
relying on multiple expert studies conducted over the past 6 years.
Three, Plaintiffs claim that Defendants did not weigh the impact on gray
whale calf migration. Again, however, the EA explicitly discusses the
possibility of sonar interfering
with mother-calf communication. Next, Plaintiffs contend that Defendants
inadequately addressed potential harm to other species. Quite the
contrary, specific sections of the EA cover the impact on, for example,
invertebrates, fish, sea turtles, sea birds, beaked whales, toothed
whales, pinnipeds, and sea otters. Fifth, Plaintiffs allege that
Defendants did not provide for adequate mitigation measures for the
research, but the EA specifically describes the mitigation measures in
place, including use of a ramp-up procedure for starting the sonar and the
presence of on-board and on-shore observers. The documentation in the EA
that refutes each of these five claims was supported by the testimony of
Dr. Stein, Dr. Gentry, and Dr. Frankel in open court.
Sixth, Plaintiffs claim that the EA was prepared in bad faith. In
scrutinizing the tedious EA and the arduous procedure to produce it,
however, we find no basis for any assertion that Defendants deliberately
ignored evidence, manipulated the process or engaged in otherwise
objectionable behavior. Plaintiffs' seventh claim asserts that Defendants
improperly failed to prepare an Environmental Impact Statement. NEPA and
the APA require production of an Environmental Impact Statement where
there exists a substantial likelihood of significant environmental
degradation. As the EA demonstrates that the project will not
significantly affect the environment, the Court finds that an EIS is not
warranted in this case. At the TRO hearing, Plaintiffs raised an eighth
claim that was not included in their original complaint, the argument
being that Defendants did not assess the impact of significant unknowns.
However, NEPA requires an agency to discuss the present knowledge base
and come to reasonable conclusions given the available scholarship. For
this reason, the Court refuses to hold that Defendants' failure to hazard
a guess as to what unforeseen consequences will stem from unknown
variables amounts to a violation of applicable law, especially given the
extensiveness of the EA and Defendants' attempt to articulate the
significant unknowns associated with the project.
Judicial review of administrative actions including those involving
NEPA and the
MMPA is governed by section 706 of the APA, 5 U.S.C. § 706.
Therefore, in evaluating the legal sufficiency of the agency's action,
the Court is required to apply the "arbitrary and capricious" standard of
the APA. Review under the arbitrary and capricious standard is to be
"searching and careful" but "narrow," and a court is not to substitute
its own judgment for that of the government agency. This standard is
highly deferential. The reason for the doctrine lies in the principle
that the Court must not usurp the role of the agency decision-maker but,
instead, should determine whether the agency decision, based on the
record before the decision-maker, was arbitrary and capricious.
The purpose of NEPA is to "ensure that federal agencies are informed of
environmental consequences before rendering decisions and that the
information is available to the public." The federal statutes in question
mandate procedure. Thus the only question is whether the government's
decision to issue the permit was an informed one. This point is so
crucial as to merit repetition: the agency must take a "hard look."
Accordingly, this Court has neither the authority nor the inclination to
substitute its judgment for that of Defendants.
Plaintiffs have failed to establish that Defendants acted in any
arbitrary and capricious manner that would constitute a violation of
federal law. Given the applicable standard, that Plaintiffs' offer of
evidence only some of which is expert testimony and therefore
persuasive partly contradicts some of the conclusions formulated
in the EA is insufficient to justify an injunction. Defendants heeded the
environmental concerns previously raised by Plaintiffs and spent
considerable time and effort researching and evaluating the consequences
of Dr. Stein's proposed research. The Environmental Assessment, produced
at the direction of the Court and in response to Plaintiffs' objections,
is specific and exhaustive, and thoroughly addresses the environmental
impact of the research, including the likely physical and behavioral
effects of sonar use on a wide variety of ocean organisms, particularly
the gray whale.
Plaintiffs' last-minute objections to the permit based on the effects
on harbor porpoises when Plaintiffs were silent during the comment period
are hereby addressed: the question raised regarding the effect on the
harbor porpoise population is whether the agency acted in an arbitrary or
capricious manner in not fully analyzing the effects thereon. Plaintiffs'
testimony as to the potential detrimental effects on the harbor porpoise
is highly speculative and does not warrant such a conclusion. Defendants'
comprehensive analysis of marine life to be affected was adequate for
issuance of the permit, and any ostensible shortcomings in the EA's
treatment of harbor porpoises does not tarnish an otherwise thorough
Thus the Court, after a careful review of the evidence presented, finds
that Plaintiffs have failed to establish that Defendants acted in a
manner that would constitute a violation of the appropriate standard of
review, and finds that the agency's actions were neither arbitrary nor
capricious, but rather connote an informed judgment. Accordingly,
Plaintiffs' motion for a permanent injunction is denied.