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January 16, 2004.

DONALD L. EVANS, et al. Defendants

The opinion of the court was delivered by: SAMUEL CONTI, Senior District Judge



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 Page 2 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 applicable law.

  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 Page 3 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 Page 4 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. Page 5

  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 study.

  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.


20040116 ...

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