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.
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
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).
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 ...