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January 29, 2004.

AUSTRALIANS FOR ANIMALS, et al., Plaintiffs,
DONALD L. EVANS, et al., Defendants

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



Plaintiffs Australians for Animals, et al, seek a permanent injunction to prevent Defendant Peter Stein ("Dr. Stein") from conducting oceanographic research involving the use of under-water sonar. The National Marine Fisheries Service ("NMFS"), a co-Defendant, issued Dr. Stein a permit to perform this type of research (the "Permit"), and the legitimacy of the Permit represents the heart of this dispute. In January 2003, this Court invalidated a similar permit that NMFS had issued for the same research (as well as other activities unrelated to the present litigation), holding that NMFS violated the National Environmental Policy Act (NEPA) in authorizing that permit without undertaking a Page 2 thorough review of the project's possible environmental impact. In the January 2003 Order, this Court enjoined NMFS from issuing any permit allowing similar research without first completing an Environmental Assessment ("EA"). In response to Dr. Stein's recent application, NMFS conducted an Environmental Assessment ("the Stein EA") and subsequently issued the Permit now in question. Plaintiffs allege that NMFS, in issuing the Permit and in preparing the Stein EA, violated NEPA, the Administrative Procedure Act (the "APA") and the Marine Mammal Protection Act (the "MMPA"). This Court, after holding an accelerated trial on the merits, finds that Plaintiffs have failed to establish that Defendants acted arbitrarily or capriciously in issuing the Permit. Accordingly, Plaintiffs' motion for a permanent injunction is denied and judgment is entered in favor of Defendants.


  A. Prior Litigation

  One year ago, these same Plaintiffs challenged several permits that NMFS issued to Dr. Peter Tyack for various research projects, including an experiment essentially identical to that of Dr. Stein which lies at the center of this action.*fn1 In that case, Hawaii County Green Party, et al. v. Evans, et al., No. C-03-078-SC Page 3 (N.D. Cal.), Dr. Tyack held multiple permits authorizing him to, inter alia, test whale-finding sonar in the Northern Pacific. Dr. Stein developed the sonar technology that was to be tested, and Dr. Tyack was retained as the scientific advisor. NMFS granted those permits to Dr. Tyack pursuant to categorical exclusions under NEPA which allow for scientific permits generally to be issued without having conducted any sort of formal environmental evaluation. See NOAA Admin. Order Series 216-6, § 6.03. This Court, however, invalidated some of the permits, finding that the public controversy and potential environmental consequence associated with the proposed research precluded application of the categorical exclusion. See Order Granting Permanent Injunction, Hawaii County Green Party, No. C-03-0078-SC (N.D. Cal. Jan. 24, 2003) (the "2003 Order"); see also NOAA Admin. Order Series 216-6, § 5.05c. The 2003 Order enjoined all defendants in that case from continuing activities covered by the invalid permits and required that NMFS prepare an Environmental Assessment prior to granting a permit for similar sonar testing on marine mammals.

  B. The 2004 Permit

  On May 15, 2003 Dr. Stein submitted an application to NMFS for a permit to conduct high-frequency sonar testing on gray whales off the California coast. In response to Dr. Stein's permit application and in accordance with the relevant administrative regulations, NMFS prepared a draft EA and on November 5, 2003 published a notice in the Federal Register announcing Dr. Stein's application. See 68 Fed. Reg. No. 62563 Page 4 (Nov. 5, 2003); Administrative Record ("AR"), Tab 3. NMFS also announced that it was holding a public meeting in Silver Springs, MD regarding Dr. Stein's permit application. See 68 Fed. Reg. 64865 (Nov. 17, 2003); AR, Tab 5. Five different entities or individuals sent written comments to NMFS, including Mr. Lanny Sinkin, counsel for Plaintiffs in this action. That meeting occurred on November 20, 2003, and on December 23, 2003, NMFS issued their final EA and a Finding of No Significant Impact and then the Permit itself. The Permit authorizes Dr. Stein to:
conduct research to validate and improve the ability of whale-finder sonar systems to detect marine mammals without adversely affecting them. The permit authorizes [Dr. Stein] to expose gray whales (Eschrictius robustus) to the whale-finder sonar sounds to gather data on the reflectivity of gray whales, determine the probability of detection of gray whales out to one mile, and determine, what, if any, reaction the gray whales may have to high frequency active sonars designed to detect marine mammals. See AR, Tab 10 at p.1.
According to the Permit, the proposed research does not involve "activities that may pose a risk of death or injury to marine mammals." Id.

  C. The Environmental Assessment

  Pursuant to the 2003 Order, NMFS prepared the Stein EA in Page 5 response to Dr. Stein's permit application to investigate the possible detrimental effects caused by the whale-finder sonar system. At forty-plus pages in length, the Stein EA discusses the purpose of and need for the proposed research, possible alternatives, the affected environment — including social and economic, physical, and biological concerns — and environmental consequences. The chapter on environmental consequences details the effects of proposed alternatives, a comparison of alternatives, compliance with the Endangered Species Act, mitigation measures, unavoidable adverse effects and cumulative environmental impact. The primary section of the Stein EA ends with a consideration of the significant criteria, which leads NMFS to the conclusion that a more thorough Environmental Impact Statement is not warranted.

  Plaintiffs, in attempting to invalidate the Permit, allege violations of NEPA, the MMPA and the APA. The common charge underlying Plaintiffs' various objections to the Stein EA is that the sonar that Dr. Stein developed and the manner in which he employs it produces hazardous effects on the Northern Pacific ecosystem, particularly against California gray whales. On January 8, 2004, Plaintiffs filed a complaint seeking a temporary restraining order and preliminary injunction against Defendants that would halt Dr. Stein's research which was already underway. On January 12, 2004, this Court held a temporary restraining order hearing, after which we held that Plaintiffs failed to satisfy the requirements for a T.R.O., namely probable success on the merits and a possibility of irreparable harm. Page 6

  Following the denial of Plaintiffs' motion for a T.R.O., this Court held a permanent injunction hearing on Plaintiffs' claims regarding Defendants' alleged violations of NEPA, the MMPA, and the APA. Although Plaintiffs' motion sought only a preliminary injunction, this Court ordered the trial on the merits to be advanced and consolidated with the preliminary injunction hearing, as authorized under Rule 65(a)(2)of the Federal Rules of Civil Procedure. Given the urgency of the situation, we decided sua sponte to convert the preliminary injunction hearing into a consolidated trial on the merits. See Fed.R.Civ.P. 65(a)(2). As this Court informed the parties of its intent to consolidate the injunction hearing into an accelerated trial and the parties offered no objection, there is no question that the litigants received fair notice and opportunity to be heard. See Glacier Park Foundation v. Watt, 663 F.2d 882, 886 (9th Cir. 1981); see also Carlvn v. City of Akron, 726 F.2d 287, 288 (6th Cir. 1984)(parties could not challenge Rule 65 consolidation after resolution of trial on the merits when judge had informed them of his intent to consolidate at the prior T.R.O. hearing).


  A. National Environmental Policy Act

  The purpose of NEPA, 42 U.S.C. § 4321, et seq., is to "ensure that federal agencies are informed of environmental consequences before rendering decisions and that the information is available to the public." Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000). The legislative Page 7 intent is to focus the attention of both the government agency and the general public on a proposed action in order to evaluate the likely consequences of a particular proposal and make an informed determination regarding that proposal. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989). "By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Id. NEPA requires that relevant environmental information be publicized and subjected to public scrutiny prior to an agency making a decision. See 40 C.F.R. § 1500.1(b). NEPA mandates procedure; the statute does not demand particular results but only prescribes the process by which agency decisions are rendered. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 558 (1978). "If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Robertson, 490 U.S. at 350. Thus the pertinent question for the Court is not whether we would have arrived at the same decision as that of the agency but merely whether the agency's decision was an informed one. Vermont Yankee, 435 U.S. at 558.

  NEPA generally requires federal agencies to prepare an Environmental Impact Statement ("EIS") prior to undertaking major federal action where there is a substantial likelihood of Page 8 significant environmental degradation. See Public Citizen v. Department of Transp., 316 F.3d 1002, 1021 (9th Cir. 2002); Anderson v. Evans, 314 F.3d 1006, 1017 (9th Cir. 2002); Tilamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140, 1143 (9th Cir. 2002); Hall v. Norton, 266 F.3d 969, 972-73 (9th Cir. 2001). However, an EIS is not necessary in all cases. See id. NEPA demands an EIS when substantial questions exist as to whether a proposed project may have a significant effect on the environment. Id. Therefore, where no significant environmental impact is likely, the government agency may prepare an EA instead.*fn2 40 C.F.R. § 1508.9(a)(2) (1997). An Environmental Assessment is a document that examines whether significant environmental impacts could result from issuance of the proposed scientific research permit. The purpose of an EA is to aide the agency's determination when no EIS is required. Id.

  An EA should "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1) (1997). While an EA ought to include short discussions of the need for the proposal, practical alternatives and the environmental impacts of both the proposal and such alternatives, "long descriptions or detailed data" are unnecessary. 46 Fed. Reg. 18026 (March 23, 1981). Thus an EA is essentially a "rough-cut, low budget environmental impact Page 9 statement intended to ...

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