United States District Court, N.D. California
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
FINAL ORDER DENYING PERMANENT INJUNCTION
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
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.
II. FACTUAL HISTORY
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
(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
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
(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.
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."
C. The Environmental Assessment
Pursuant to the 2003 Order, NMFS prepared the Stein EA in
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
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.
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).
III. LEGAL STANDARD
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
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
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
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
statement intended to determine whether environmental effects are
significant enough to warrant preparation of an EIS." Sierra
Club v. Espy, 38 F.3d 792, 802 (5th Cir. 1994).
B. The Marine Mammal Protection Act
The MMPA generally prohibits "takings" of marine mammals, where a
"taking" means to "harass, hunt, capture, or kill, or attempt [any of
such]." 16 U.S.C. § 1372(a); 1362(13). The MMPA, however, carves out
an exception allowing for "takings" for the purpose of scientific
research, as determined by the Secretary of Commerce who may issue
permits accordingly. See 16 U.S.C. § 1371(a)(1)); 1374(c)
(3).*fn3 The process for acquiring a permit pursuant to the MMPA is
similar to that of NEPA. Individuals seeking MMPA permits must submit an
application to the NMFS, which following a period for public review,
determines whether the proposed activity comports with the MMPA
guidelines or whether such a determination first requires preparation of
an EA or EIS. 15 C.F.R. § 216.33(d).
C. The Administrative Procedure Act
The Administrative Procedure Act governs judicial review of an agency
decision under NEPA and the MMPA. See 5 U.S.C. § 706;
Pyramid Lake Paiute Tribe of Indians v. United States Dept. of
Navy, 898 F.2d 1410, 1414 (9th Cir. 1990). Agency actions may be
properly overturned where they are "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law." Id. at
§ 706(2)(A); see also Idaho Sporting Congress v. Thomas,
137 F.3d 1146, 1149 (9th Cir. 1998); Oregon Natural Res. Council v.
Lowe, 109 F.3d 521, 526 (9th Cir. 1997). 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. This standard
is highly deferential, and review of the record is to be "searching and
careful" but "narrow." Marsh, 490 U.S. at 378. District courts
are not empowered to substitute their own judgment for that of the
government agency. Wetlands Action Network v. U.S. Army
Corps of Eng'rs, 222 F.3d 1005, 1114 (9th Cir. 2000). The reason
behind this doctrine lies in the principle that a court should not usurp
the role of the agency but rather should determine simply whether the
agency took a "hard look" at the evidence before it that is,
whether the agency decision was arbitrary or capricious. See Center
for Biological Diversity v. U.S. Forest Serv.,
349 F.3d 1157, 1166 (9th Cir. 2003).
For decisions involving the particular expertise of the decision-maker,
the reviewing court should defer to the "informed discretion of the
responsible federal agencies." Marsh, 490 U.S. at 377. As the
Supreme Court explained:
"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."
Id. at 378.
For this reason, courts are not required to balance conflicting
expert opinions. See Friends of Endangered Species, Inc. v.
Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). That a plaintiff can
dispute an agency's findings does not sufficiently establish that the
agency acted arbitrarily or capriciously. See Greenpeace Action v.
Franklin, 14 F.3d 1324, 1336 (9th Cir. 1992). Ultimately, the
dispositive question is whether or not the agency made an informed
A. Compliance with NEPA
Plaintiffs raised seven claims in their original complaint and voiced
one additional objection during the T.R.O. hearing before the Court. The
first five of these claims involve specific challenges to conclusions
that NMFS made in the Stein EA regarding the possible detrimental effects
of Dr. Stein's research on the surrounding environment. Plaintiffs also
contest the validity of the Stein EA for its failure to discuss
significant unknowns associated with the project. This claim surfaced for
the first time at the T.R.O. hearing. Plaintiffs' final two claims
allege, respectively, that NMFS produced the Stein EA in bad faith and
erred in deciding that the proposed research did not warrant preparation
of an EIS. We now consider each of these claims in
1. Auditory Effects of Sonar on Gray Whales
Plaintiffs allege that Defendants ignored possible harmful effects on
gray whales stemming from the animals' ability to hear the sonar.
According to Plaintiffs, the Stein EA erroneously asserts that gray
whales will not be able to detect the sonar sounds. See Pls.,
Mem. in Supp. of T.R.O. and Prelim. Inj. ("Pls.' Memo") at p. 6. Their
contention is that gray whales will likely modify their behavior in
reaction to the sonar or that the sonar is loud enough to possibly harm
the whales' hearing capacity. Plaintiffs believe that Defendants acted
arbitrarily and capriciously in ignoring evidence of how insonification
potentially affects gray whales.
The Stein EA adequately discusses the auditory effects of sonar on gray
whales (as well as other marine mammals). See Environmental
Assessment at p. 24. It explains in detail the hearing range of baleen
whales (the classification to which gray whales belong) based on
frequency and decibel level and concludes that these whales are more
sensitive to lower-frequency sounds. See id. Furthermore, Dr.
Roger Gentry, director of the NMFS Acoustics Program, testified that the
sonar, when operated at high frequencies, will be inaudible to gray
whales and therefore not alter their normal behavior. Decl. of Roger
Gentry in Supp. of Federal Defs.' Opp. to Pls.' Mot. for T.R.O. and
Prelim. Inj. ("Gentry Decl."), ¶ 3. Also, with respect to the
auditory damage, Dr. Gentry explained, "no sonar could produce a
sound at [the pertinent] frequency loud enough to cause even a temporary
change in hearing." Id. Dr. Gentry compared the effect of the
sonar on gray whales to that of a dog whistle on humans and concluded
that the Stein EA reasonably and accurately determined that the research
posed no risk of acoustic injury to gray whales.
Relying on affidavits and testimony from Mr. Larry Mebust and Ms. Katy
Penland, Plaintiffs offer evidence to refute the Stein EA's conclusions
and illustrate that gray whales can hear sonar. The majority of this
evidence, however, came in the form of anecdotal hearsay regarding the
claims of whale-watching boat captains who boasted that they could cause
gray whales to breach by activating sonar. Plaintiffs contend that NMFS
should have consulted with Mr. Mebust or Ms. Penland in order to
thoroughly investigate the behavioral effects of the sonar on gray
whales. However, given the lack of scientific expertise of Mr. Mebust and
Ms. Penland a pilot and photographer, respectively such
consultations were not imperative. In addition, even if the Court were to
accept the testimony of Mr. Mebust and Ms. Penland as given, Plaintiffs
have not offered any explanation as to how the gray whales' mere ability
to hear the sonar equates to a harmful effect on the animals.
At the injunction hearing, Plaintiffs' own witness, David Bain,
testified under cross-examination to the similarity between the type of
sonar employed by Dr. Stein and that of commercial fish-finders.
According to Mr. Bain, Dr. Stein's sonar uses a
longer pulse duration, generally lower frequency and has greater
depth and range than commercial sonar, but the power source levels
between the two are comparable. Furthermore, the frequency range of Dr.
Stein's sonar overlaps with that of commercial sonar. Thus there was
inconclusive evidence that the sonar involved with the proposed research
was substantially different than that which commercial fisherman
permissibly use on a regular basis.
2. Effects on Cow-Calf Migration
Plaintiffs argue that the Stein EA fails to consider the potential harm
that the sonar causes on gray whale migration, specifically regarding
cow-calf communication.*fn4 See Pls.' Memo at pp. 18-20. They
contend that use of the sonar risks interfering with the ability of cows
to communicate with their calves, possibly resulting in calves becoming
separated from their mothers and thereby extremely vulnerable. The Stein
EA, however, directly addresses the likelihood of communicative
interference ("masking"), explaining that masking is improbable given the
duration and frequency of the signal. See Environmental
Assessment at p. 25. On this issue, the Stein EA relies on the opinion of
Dr. Tyack, a recognized expert in marine mammal acoustics, and cites
three different studies to justify its position. Furthermore, Dr. Gentry
testified that the sonar was not likely to compromise cow-calf
communications given the frequency of the sonar versus that which gray
whales use to
communicate. See Gentry Decl., ¶ 3. Dr. Gentry
analogized the question to humans' ability to converse over the sound of
a dog whistle to illustrate the appropriateness of the conclusions
reached in the Stein EA.
3. Gray Whale Population
Plaintiffs allege that the Stein EA neglected the precarious state of
the gray whale population. Specifically, Plaintiffs challenge the Stein
EA's population estimate and question NMFS's failure to list gray whales
as an endangered or threatened species. Plaintiffs offer credible
testimony through Mr. Bain identifying the forty-percent decline over the
past few years as a sufficiently extraordinary event to merit further
investigation, and they contend that the Stein EA improperly disregards
the significance of this decline. See Pls.' Memo, pp. 11-13.
The Stein EA, however, adequately addresses gray whale population, citing
multiple studies over the past decade and as recently as 2002 and
discussing population trends over the past thirty years.
In rebuttal to Mr. Bain, Dr. David J. Rugh confirmed the veracity of
the data referenced in the Stein EA and justified the NMFS having removed
the Eastern North Pacific stock of gray whales from the endangered
species list. See Dec. of David Rugh in Supp. of Fed. Defs.'
Opp. to Pls.' Mot. for T.R.O. & Prelim. Inj ("Rugh Decl."), ¶¶
7-8. Additionally, Dr. Gentry opined that the long-term significance of
the recent population decline is indeterminable given the small sample
size and other statistical indicators regarding dynamic equilibrium and
See Gentry Decl., ¶ 2. As the responsibility of the
Court is not to resolve conflicting expert testimony but rather to
determine whether the conclusions in the Stein EA are reasonable and
well-informed, the testimony of Drs. Rugh and Gentry preclude a finding
of arbitrariness or capriciousness on this issue. See Franklin,
14 F.3d at 1336; Jantzen, 760 F.2d at 986.
Plaintiffs also object to the Stein EA's lack of discussion of the
causes of the recent population decline. In particular, Plaintiffs argue
that the Stein EA excludes consideration of links between this population
decline and food shortages or other climatic events and the likelihood of
further ecological occurrences affecting the gray whale population. The
Stein EA's failure to analyze these concerns, according to Plaintiffs,
constitutes a fatal defect. See Pls.' Memo at p. 9. Plaintiffs
accurately indicate that the Stein EA lacks a comprehensive discussion of
the potential causes of the recent gray whale population decline. That,
however, is not the purpose of the Stein EA. An EA is required to
"briefly provide sufficient evidence and analysis. . . ."
40 C.F.R. § 1508.9(a)(1) (1997). The Stein EA was not intended to serve as a
treatise on marine mammal population dynamics. As the aim of the Stein EA is
to address the environmental effects of sonar use, its treatment of the
current gray whale population was adequate.
4. Effects on Other Species
Plaintiffs' fourth claim concerns the supposed failure of the Stein EA
to discuss the impact on species other than the
California gray whale. Plaintiffs focus on the limited discussion
of harbor porpoises contained within the Stein EA. At trial, Mr. Bain
testified that the research project could scare away harbor porpoises
from the insonified area, thereby reducing the available space in which
the porpoises live. That in turn would result in an overcrowding effect
where a greater number of porpoises would depend on a presumably static
food supply within a given area. Mr. Bain estimated that this chain
reaction could ultimately adversely affect even kill a
significant percentage of the harbor porpoises in the vicinity.
See Supp. Decl. of David Bain ("Bain Decl."), ¶¶ 2-10;
In response, Dr. Gentry testified that the scenario described by Mr.
Bain was implausible based on the ease with which harbor porpoises
habituate to high-frequency sounds. According to Dr. Gentry, it is
therefore doubtful that the sonar would scare any porpoises away from the
insonified area. Furthermore, Defendants introduced Dr. Adam Frankel, the
scientist supervising observation for Dr. Stein's research project. Dr.
Frankel testified that in his experience as an observer for this project
as well as Dr. Tyack's project in 2003, zero harbor porpoises had been
observed near the insonified area regardless of whether the sonar was
active or not. In Dr. Frankel's opinion, harbor porpoises seemingly do
not live in or travel through the particular part of the ocean where the
research is being conducted. In addition to these experts' testimony, the
Stein EA discusses the possible presence of harbor porpoises, their
ability to hear sounds in the
frequency range of the research and the potential behavioral
reactions caused by the sonar. See Environmental Assessment at
pp. 12; 22; 31-34.
Plaintiffs cannot substantiate their assertion that the Stein EA
grossly miscalculates the extent to which the research project will
affect harbor porpoises. Even if this Court were to disregard the
credible evidence offered through Drs. Gentry and Frankel, Plaintiffs
have still failed to demonstrate the likelihood of any harmful effects on
the harbor porpoise population. Although Plaintiffs boldly state that the
research will create "an extraordinary loss of population," the theory
that harbor porpoises will perish as an indirect result of the project as
the animals, in avoiding the sonar, relocate to a different area that
lacks an adequate food supply is highly speculative. See Pls.'
Supplemental Mem. in Supp. of Mot. for Prelim. Inj. ("Pls.' Supplement").
Furthermore, Mr. Bain even admitted that the noise from the sonar which
could conceivably trigger the tragic chain reaction ending in the death
of some creatures is similar to other oceanic noise, such as that from a
boat's motor. Thus the potential harm to harbor porpoises from the sonar
again, which seems quite dubious is no different than
that risked whenever boats permissibly venture into these waters. For
this reason, Plaintiffs' allegation that Defendants acted arbitrarily or
capriciously in not considering the possible harm to harbor porpoises is
We also note that Plaintiffs' claims regarding the plight of
harbor porpoises was conspicuously absent from the administrative
process. Following the announcement of Dr. Stein's permit application,
various groups including Plaintiffs contested the Stein EA while it was
in draft form prior to NMFS issuing the Permit. At no time, however, did
Plaintiffs raise the point of harbor porpoises. While we acknowledge that
NEPA obligates the agency to consider the various potential environmental
impacts of a proposed action, "it is still incumbent upon intervenors who
wish to participate to structure their participation so that it is
meaningful, so that it alerts the agency to the intervenors' position and
contentions." Vermont Yankee, 435 U.S. at 553. Therefore, that
Plaintiffs raised the issue of harbor porpoises for the first time at the
T.R.O. hearing detracts from the efficacy of this claim. See
Aside from harbor porpoises, Plaintiffs claim that the Stein EA does
not sufficiently consider the effects of the proposed research on other
species, including killer whales. On this point, the Court finds it
beneficial to note some of the species that the Stein EA explicitly
considers: invertebrates such as mollusks, crustaceans, sponges and
jellyfish; fish including anchovy, tuna, swordfish, herring, sardine,
mackerel, rockfish, and flatfish; sea turtles; seabirds; blue whales; fin
whales; minke whales; right whales; humpback whales; beaked whales; sperm
whales; harbor seals; northern fur seals; California sea lions; and sea
otters. We include this lengthy list of species to illustrate the
comprehensiveness of the Stein EA. Because the
Stein EA is specifically designed to briefly discuss the potential
environmental impact, it is always possible to identify some
considerations which were not analyzed in depth. However, given the
extensive list of species that the Stein EA covers, including specific
discussions regarding odontocetes such as killer whales, we find that the
Stein EA satisfactorily discusses the impact on animals other than gray
5. Mitigation Measures
There is no dispute that the Stein EA considers and adopts mitigation
measures intended to "minimize the potential for adverse effects on
marine mammals." Environmental Assessment at p. 36. Still, Plaintiffs
contend that the mitigation measures included are "woefully inadequate."
See Pls.' Memo at p. 20. Specifically, Plaintiffs argue that
Defendants' intent to use observers stationed on the research vessel and
onshore but not employ aerial observation represent insufficient
precautions. The evidence, however, indicates otherwise. Dr. Stephen
Leathery, Chief of the Permits Division for NMFS, explained that aerial
surveys are unlikely to increase the detection of adverse reactions
during sonar transmissions given the altitude and airspeed of most survey
craft, and thus onshore and onboard observers definitely suffice.
See Decl. of Stephen Leathery, ¶ 6. In addition, Dr.
Leathery cites evidence that low-flying aircraft such as those conducting
aerial surveys often disturb marine mammals and could therefore tamper
with the data that the research aims to collect. See
id., ¶ 7.
Plaintiffs also contest the effectiveness of the prescribed ramp-up
procedure in which the researchers initiate the sonar signal at a
low power level and progressively increase it. The Stein EA details how
ramping up the sonar signal in this manner would allow disturbed animals
to flee the immediate area. Furthermore, the sonar is to be deactivated
if a marine mammal approaches within one hundred meters of the vessel or
if any endangered species comes within two kilometers of the vessel.
Also, the sonar will only be used during daylight hours so that the
onshore and onboard observers can be most effective. NEPA only requires a
"reasonably complete discussion of possible mitigation measures."*fn5
Thus, in light of the absence of evidence illustrating that the sonar
even harms marine mammals or other species, we hold that the mitigation
measures are entirely adequate.
6. Significant Unknowns
During the T.R.O. hearing, Plaintiffs raised the issue of significant
unknowns, a claim that they did not include in their original complaint.
Plaintiffs' argument on this issue is essentially a conglomeration of
elements from their other claims in that they contend the Stein EA did
not assess the impact of numerous unknown factors related to the
proposal, thereby rendering the NMFS decision to issue the Permit
capricious. According to Plaintiffs, the ability of marine mammals
to hear the sonar, the effects of sonar on cow-calf communication, the
causes of the gray whale population decline, and the potential impact on
harbor porpoises all represent significant unknowns that invalidate the
legitimacy of the Permit.
Throughout its discussion of particular areas of potential
environmental impact, the Stein EA acknowledges that there are unknown
factors and indeterminable consequences. Plaintiffs seek to use this
acknowledgment to justify nullification of the Permit. NEPA, however,
requires an agency to discuss the present knowledge base and draw
reasonable conclusions given the available scholarship. See Okanoqan
Highlands, 236 F.3d at 473. To demand that an agency predict or even
precisely identify every possible unknown prior to approving proposals
would severely restrict scientific research. As it was once said, "to
solve a problem that we have never solved before, we must leave the door
to the unknown ajar."*fn6 For this reason and in light of the
extensiveness of the Stein EA and its attempts to identify the
significant unknowns associated with the proposal, 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
7. Bad Faith
Plaintiffs accuse NMFS of conducting the administrative process in bad
faith. Plaintiffs argue that because NMFS was
biased from the beginning of the entire administrative process
surrounding Dr. Stein's permit application, the agency was not objective
in preparing the Stein EA, deciding not to conduct an EIS or ultimately
issuing the Permit. Allegedly, the agency's response to the 2003 Order
reflects its bias in favor of the deployment of the high-frequency sonar.
See Pls.' Memo at p. 22-24. On the official website of the
National Oceanic and Atmospheric Administration ("NOAA"), NMFS posted a
listing entitled "Whale Conservation Setback" in which it decried the
2003 Order and proclaimed the absence of scientific evidence
demonstrating any potential harm to marine mammals. See Pls.'
Ex. 16. The NOAA website posting, in Plaintiffs' opinion, demonstrates
NMFS' partiality in support of the proposal. According to Plaintiffs,
NMFS's lack of objectivity violates the APA.
While NMFS undoubtedly disagreed with the 2003 Order, such disagreement
does not translate into a procedural violation. It is self-evident that
an agency which decides to support a given proposal after objectively
weighing the merits of that proposal will subsequently defend the
propriety of its decision. That NMFS stood by its choice to issue the
Permit following the 2003 Order does not create an inference of bias that
bears on the objectivity with which the agency initially considered the
proposal. Thus, NMFS's support of this type of whale-finding sonar
research does not render its decision to grant the Permit arbitrary or
capricious. In scrutinizing the tedious EA, we find no basis for
any assertion that Defendants deliberately ignored evidence,
manipulated the administrative process or engaged in otherwise
objectionable behavior. Accordingly, Plaintiffs' allegation of bad faith
8. Environmental Impact Statement
Plaintiffs' eighth and final objection to the Stein EA concerns NMFS's
conclusion that the proposed research did not warrant preparation of an
Environmental Impact Statement. NEPA stipulates that an EIS is necessary
where an EA demonstrates that a proposed project may have a significant
effect on the environment. Public Citizen v. Department of
Transp., 316 F.3d at 1021. As the Ninth Circuit explained, "The
plaintiff need not show that significant effects will in fact
occur, but if the plaintiff raises substantial questions whether a
project may have a significant effect, an EIS must be prepared."
Greenpeace, 14 F.3d at 1332. An agency's decision not to
prepare an EIS is reviewed under the arbitrary and capricious standard.
Marsh, 490 U.S. at 376-77; Anderson v. Evans, 350
F.3d at 829.
Plaintiffs essentially repeat their first six claims to illustrate that
the proposal required an EIS, arguing that the potential harms to marine
mammals from the sonar and the unknown consequences associated with the
sonar research necessitated further investigation prior to issuance of
the Permit. We respectfully disagree. NMFS considered the significance of
the potential effects of the research in terms of both context and
intensity and concluded that there were not substantial questions
of significant impact. See Environmental Assessment at
pp. 41-43; 40 C.F.R. § 1508.27 (defining "significantly" for purposes of
NEPA). The Stein EA explored all of the questions raised by Plaintiffs
the possible harm to marine mammals from hearing the sonar, the
status of the gray whale population, the effects on gray whale calf
migration, impact on other species including the harbor porpoise and the
adequacy of the mitigation measures included and reasonably
concluded that preparation of an EIS was unnecessary. Thus there is no
basis to hold that Defendants acted arbitrarily or capriciously in
concluding that the Stein EA foreclosed any substantial questions about
significant environmental effects that may occur as a result of the
B. Compliance with The MMPA
The MMPA authorizes the issuance of permits for "takings" of marine
mammals for scientific purposes, provided that the Marine Mammal
Commission (the "MMC") and the Committee of Scientific Advisors on Marine
Mammals (the "CSAMM") first review the proposed taking.
16 U.S.C. § 1371 (a)(1). The MMC, in consulting with the CSAMM, supported
NMFS's decision to issue the Permit, finding that Dr. Stein's proposal is
"important and will contribute to our knowledge concerning the efficacy
of whale finding sonar and its effects on marine mammals" and "consistent
with the purposes and policies of the MMPA." Letter from MMC to Stephen
Leathery, AR, Tab 5. As Dr. Stein's permit application addresses the
various MMPA elements required under 16 U.S.C. § 1374(d)(3) and in
of the support from the MMC and the CSAMM, we find that Defendants
have not violated MMPA.
Plaintiffs have failed to establish that Defendants acted in any
arbitrary or capricious manner that would constitute a violation of
federal law. Given the applicable standard, the fact that Plaintiffs'
offer of evidence only some of which qualifies as expert
testimony and is persuasive partly contradicts some of the
conclusions formulated in the Stein EA is insufficient to justify an
injunction. The APA, the MMPA and NEPA mandate procedure. NMFS was
required totake a hard look at the potential environmental impact and use
itsown judgment in assessing the merits of the proposal. Defendants
heeded the environmental concerns that Plaintiffs had previously voiced
and spent considerable time and effort researching and examining the
consequences of the proposed research. The Stein EA, produced at the
direction of the Court and in response to Plaintiffs' objections, is both
specific and exhaustive and thoroughly addresses the environmental impact
of the project, including the likely physical and behavioral effects of
sonar use on a menagerie of ocean organisms, particularly the gray whale.
After adequately identifying and evaluating Dr. Stein's project, NMFS had
the discretion to decide whether the benefits from the research
outweighed its environmental costs. See Robertson, 490 U.S. at
350. The decision to issue the Permit was neither arbitrary nor
capricious but rather connotes an informed judgment. Accordingly,
Plaintiffs' motion for a permanent injunction is HEREBY DENIED and
JUDGMENT IS ENTERED IN FAVOR OF DEFENDANTS.
IT IS SO ORDERED.