Memo Opposing Stay Pending Appeal

8/14/2019 Memo Opposing Stay Pending Appeal

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Richard B. Kendall (State Bar No. 90072)Gregory A. Payer (State Bar No. 232303)Josh B. Gordon (State Bar No. 244818)IRELL & MANELLA LLP1800 Avenue of the Stars, Suite 900Los Angeles, California 90067-4276Telephone: (310)277-1010Facsimile: (310)203-7199Email: [email protected] fo r PlaintiffNatural Resources Defense Council, Inc.Joel R. Reynolds (State Bar No. 85276)Cara A. Horowitz (State Bar No. 220701)NATURAL RESOURCES DEFENSE COUNCIL, INC.1314 Second StreetSanta Monica, CA 90401Telephone: (310)434-2300Facsimile: (310)434-2399Email: [email protected] for PlaintiffsNatural Resources Defense Council, Inc.;International Fund fo r Animal Welfare;Cetacean Society International;League For Coastal Protection;Ocean Futures Society; and Jean-Michel Cousteau

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISIONNATURAL RESOURCES DEFENSECOUNCIL, INC. et al,

Plaintiffs,v.

DONALD C. WINTER, Secretary ofthe Navy, et al.,Defendants.

Case No. SACV 07-0335 FMC (FMOx)PLAINTIFFS' MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO DEFENDANTS'EXPARTE APPLICATION FORSTAY PENDING APPEALJudge: Hon. Florence-Marie CooperCtrm: 750

1803438

-Redacted-OPPOSITION TO DEFENDANTS' EXPARTE APP

FOR STAY PENDING APPEA

Case 8:07-cv-00335-FMC-FMO Document 107 Filed 01/11/2008 Page 1 of 24


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TABLE OF CONTENTSPage

I. INTRODUCTION 1II. DEFENDANTS ARE NOT ENTITLED TO A STAY OF THECOURT'S MITIGATION ORDER 4

A. Legal Standards 4B. The Navy Is Not Likely to Prevail on the Merits of ItsAppeal 5

1. The Court Correctly Held That Plaintiffs Are Likely toPrevail on the Merits of Their NEPA and CZMA Claims 52. The Court Correctly Determined that Plaintiffs HaveShown a Possibility of Irreparable Injury AbsentInjunctive Relief. 53. The Mitigation that the Court Ordered Is Both Practicableand Significantly Protective of the Marine Environment 6

a. The Co urt's Determination that the MeasuresSet Forth in the Mitigation O rder Are B othPracticable and Protective of the MarineEnvironment Is Not Clearly Erroneous 7b. The Balance of the Harms and Public InterestFavor Imposition of the Mitigation Measures

that the Court Has Ordered 14C. Traditional Deference to the Executive Branch RegardingMatters of National Security Cannot Justify a Stay 15D. The Equities Do Not Favor Issuance of a Stay 17

III. CONCLUSION 20

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TABLE OF AUTHORITIESPagefs)

CasesAm. Bioscience v. Thompson,243 F.3d 579 (D.C.C ir. 2001) 10Arizona Cattle Growers'Ass'n v. U.S. Fish an d Wildlife, Bureau ofLand Management,273 F.3d 1229 (9th Cir. 2001) 5Asarco Inc. v. EPA,616 F.2d 1153 (9th Cir. 1980) 10As hero f t v. ACLU,542 U.S. 656 (2004) 4Earth Island Institute v. U.S. Forest Service,442 F.3d 1147 (9th Cir. Mar. 24, 2006) 4, 14Fund for Animals v. Clark,27 F.Supp.2d 8 (D.D.C. 1998) 14Gilligan v. Morgan,413 U.S. 1(1973) 16GW ENAlliance v. Aldridge,855 F.2d 1380 (9th Cir. 1988) 16Hilton v. Braunskill,

481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) 4Makau v. Rumsfeld,163 F.Supp.id 1202 (D. Haw . 2001) 14Minidoka Irrigation Dist. V. Dep't of Interior of U.S.,406 F.3d 567 (9th Cir. 2005) 5Nat 'I Audubon Soc V v. Dep 't ol422 F.3d 174 (4th Cir. 2005) I. 16Nat 7 W ildlife Fed'n v. Nat 'I Ma rine Fisheries Serv.,422 F.3d 782 (9th C ir. 2005) 3Natural Resources Defense Cou ncil, Inc. v. W inter,508 F.3d 88 5 (9th Cir. 2007) passimNLRB v. Brown,380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) 5NRDC v. Evans,279 F.Supp.2d 1129 (N.D. Cal. 2003) 14, 15

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NRDCv. Navy,857 F.Supp. 734 (C.D. Cal. 1994) 15 ,19San Luis Obispo Mo thers for Peace v. Nuclear Regulatory Com 'n,449 F.3d 1016 (9th Cir. 2006) 3, 15, 16, 17Seattle Aud ubon Soc. v. Evans,111 F.Supp. 1081 (W.D. Wash. 1991) 14Sierra Club v. Peterson,185F.3d349(5thCir. 1999) 10The Lands Council v. Powell,395 F.3d 1019 (9th Cir. 2005) 10RulesFed. R. Civ. P. 62 4Regulations71 Fed. Reg. 38,718-19 1271 Fed. Reg. 38720 12

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I. INTRODUCTIONDefendants' Ex Parte Application requesting that the Court stay its January 3

Order Issuing Preliminary Injunction ("January 3 Order") as subsequently modifiedby the Co urt's January 10 Mo dified Order Issuing Preliminary Injunction ("January10 Order") (collectively, "Mitigation Order") should be denied. In issuing its initialpreliminary injunction of the SOCAL exercises on August 6, 2007 ("August 6Order"), the Court concluded that Plaintiffs are likely to prevail o n the merits oftheir claims that Defendants have violated the National Environmental Policy Act("NEPA") and the Coastal Zone M anagement Act ("CZMA"), that a possibility ofirreparable harm exists in the absence of an injun ction, that the balance of the harmsfavors an injunction , and that the public interest is served by its issuance. Onappeal, the Ninth Circuit affirmed each of these conc lusions, but stated that "havingconsidered the effect that narrowly tailored mitigation conditions might have on theparties' interests, we conclude that such an injunction would be appropriate."Natural Resources Defense Council, Inc. v. W inter, 508 F.3d 885, 887 (9th Cir.2007). The Court of Appeals thus reman ded for this Court to issue a tailoredinjunction, ordering specific mitigation m easures for the protection of the marineenvironmen t that would permit the Navy to carry out its training activities subject tothose measures. This Court's Mitigation Order did just that.

The Navy can show no error in the Mitigation Order. First, the Ninth Circuithas already affirmed this C ourt's determination that Plaintiffs are entitled toinjunctive relief in connection with the Nav y's apparent violations of two federalenvironmental statutes - each of which is independently sufficient to support theissuance of injunctive relief. The Ninth C ircuit affirmed this Court's determinationthat Plaintiffs are likely to prevail on the merits of their NEP A and CZMA claims,that Plaintiffs have demonstrated a possibility of irreparable harm to theenvironment sufficient to merit injunctive relief, and that the balance of the harmsand the public interest favor injunctive relief. As this Court noted, these findings1803438 -1 OPPOSITION TO DEFENDANTS' EX PARTE APP.

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"were not disturbed by the Ninth Circuit's November decision." January 3 Order at5. The Navy can show no possibility of prevailing on a challenge to those findingsand conclusions. The Nin th Circuit has already affirmed them.

Second, the Navy can show no error in the Court's tailoring of the injunction.The mitigation m easures that the Court ordered are both practicable for the Navy toimplement an d necessary to comply with federal law. The Court's findingsconcerning the practicability and necessity of these mitigation measures are factualfindings an d cannot be disturbed absent a showing of clear error. As Plaintiffsemphasized in their mitigation briefing, the evidence submitted to the Court clearlydemonstrates that these measures are practicable. Indeed, the Navy hasimplemented most of these measures - aswell as even more stringent measures -during similar training exercises in the past. There is also more than ample supportin the record for the Co urt's conclusion that these measures are necessary for theprotection of themarine environment - as demonstrated by the overwhelmingevidence that the Nav y's activities have a demonstrated potential for significantharms to the marine environment in absence of effective protections. In sum,Defendants can show no likelihood of prevailing on the merits of their appeal andtheir application for stay should be den ied.

In arguing that the C ourt's M itigation Order is erroneous and should beoverturned on appeal, the Navy clearly misunderstands the standard for appellatereview of this Court's Order. While the Navy repeatedly claims that the Co urt erredby failing to adopt the Navy's view of specific mitigation measures because theNavy submitted evidence supporting its view of those measures, that is not the stuffof which "clear error" is made. The Court's factual determinations regardingappropriate mitigation measures - which were made after a careful review of thevoluminous evidence an d briefing submitted by both p arties an d after a personalNavy-guided tour of one of the Nav y's sonar-equipped destroyers - must be upheldabsent a showing that there was insufficient evidence in the record to support the1803438 -2- OPPOSITION TO DEFENDANTS' EXPARTE APPFOR STAY PENDING APPEA



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Court's determination that the mitigation it ordered is practicable and wouldsignificantly reduce impacts on southern California marine life. Nat 7 WildlifeFed'n v. Nat'I M arine Fisheries Serv., 422 F.3d 782, 794 (9th Cir. 2005) ("NW F').That is clearly n ot the case here. Plaintiffs submitted many hun dreds of pages ofscientific evidence, declarations from eminent scientists, and the Navy 's ow ninternal docum ents show ing that each of the measures that the Court ordered wasboth practicable and significantly protective of the marine environment.

The Navy's application fails for the additional reason that the equities do notfavor issuing a stay under the circumstances here. The tempo rary inconvenience ofhaving to implement additional protective measures during the remaining SOCALexercises - many of which theNavy has already im plemented in its exercises in thepast w hile still training and certifying its troops for deployment - cannot outweighthe likelihood of irreparable harm to the environment should the Navy be permittedto carry out its exercises without proper safeguards in place.

Nor can traditional deference to the executive branch regarding nationalsecurity matters justify a stay. Con trary to the Navy 's representations, deferen ce isnot a blank check to violate the law and does not insulate the executive's actionsfrom judicial review and scrutiny. See San Luis Obispo Mothers for Peace v.Nuclear Regulatory Com 'n, 449 F.3d 1016, 1035 (9th Cir. 2006) ("There is no'national defense' exception to NE PA .... The Navy, just like any federal agency,must carry out its NEP A mandate to the fullest extent possible and this mandateincludes weighing the environmental costs of the [project] even though the projecthas serious national security implications." (internal quotation omitted)). The Courtcarefully considered and more than adequately accomm odated and deferred to theNav y's national security claims in crafting its order.

The Navy raises no new arguments or issues on its request for stay - either onthe merits or on the equities - that the Court has not already carefully consideredand weighed in crafting its preliminary injunction. Defend ants have fallen far short1803438 -3- OPPOSITION TO DEFENDANTS' EXPARTE APP




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of meeting their burden of demonstrating that they are likely to succeed in anyeventual appeal of the Co urt's ruling. Plaintiffs respectfully request that theirapplication be denied.II. DEFENDANTS ARE NOT ENTITLED TO A STAY OF THE COURT'S

MITIGATION ORDERA. Legal StandardsMotions to stay an injunction pending appeal are entrusted to the sound

discretion of the district cou rt. Fed. R. Civ. P. 62(c). The standard for stay requestsis largely the same as that for prelimin ary in jun ctive relief. See, e.g., Hilton v.Braumkill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Thus,Defendants are not entitled to a stay of the Cou rt's injunction unless they candemonstrate: "(1) a combination of probable success on the merits [of their appeal]and the possibility of irreparable harm; or (2) that serious questions are raised andthe balance o f hardships tips sharply in favor of granting the requested injunction."Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 1158-59 (9th Cir.2006).

On appeal, a district court's issuance of a preliminary injunction is reviewedfor "abuse of discretion." Ashcroft v. ACLU, 542 U.S. 656, 664 (2004). This"review is limited an d deferential," and "[m]ere disagreement with the districtcourt's conclusions is not sufficient reason [] to reverse the district co urt's decisionregarding a preliminary injunction." N W F , 422 F.3d at 793. A district court'sfactual determinations, including findings of irreparable harm, w ill not beoverturned "as long as findings are plausible in light of the record viewed in itsentirety." Id . at 795. Even when the "facts and scientific analysis underlying thedistrict court's decision are hotly con tested," an appellate court's review is "verydeferential." Id. at 794. "[I]n rev iewin g district court finding s of fact fo r clearerror," the appellate court "must view the evidence in the light most favorable to the

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prevailing party." Minidoka Irrigation Dist. V. Dep 't of Interior of U.S., 406 F.3d567, 572 (9th Cir. 2005) (citation omitted).1

B. The Navy Is Not Likely to Prevail on the Merits of Its Appeal1. The Court Correctly Held That Plaintiffs Are Likely to

Prevail on the Merits of Their NEPA and CZMA ClaimsThe Court's August 6, 2007 Order granting Plaintiffs' motion fo r preliminary

injunction concluded that Plaintiffs were likely to prevail on the merits of theirNEPA and CZMA claims. Aug. 6 Order at 5; Jan. 3 Order at 4-5. The Court ofAppeals' November 13 Order expressly affirmed this conclusion, holding that"Plaintiffs have shown a strong likelihood of success on the merits of their claimsunder [NEPA and the CZMA]...." NRDC v. W inter, 508 F.3d at 886. This holdingis binding under law of the case principles and the Navy presents no colorable basisfor overturning it. In short, the Navy's violations of law that form the basis of theinjunction that the Navy here asks the Court to stay are not subject to doubt.

2. The Court Correctly Determined that Plaintiffs Have Showna Possibility of Irreparable Injury Absent Injunctive Relief

Likewise, in its initial Preliminary Injunction Order this Court found thatPlaintiffs had "established to a near certainty that use of MFA sonar during theplanned SOCAL exercises will cause irreparable harm to the environment andPlaintiffs' standing declarants." Aug. 6 Order at 19; Jan. 3 Order at 12. The Courtof Appeals unequivocally affirmed this aspect of the Court's ruling, holding thatPlaintiffs "have met the necessary burden of proof having demonstrated "thepossibility of irreparable injury if relief is not granted." NRDCv. W inter, 508 F.3d

Plaintiffs' NEPA an d CZMA claims have been brought pursuant to theAdministrative Procedure Act ("APA"). Under the APA, Courts may not simply"rubber-stamp ... administrative decisions that they deem inconsistent with astatutory mandate or that frustrate the congressional policy underlying a statute."Arizona Cattle Growers' Ass 'n v. U.S. Fish and Wildlife, Bureau of LandManagement, 273F.3d 1229, 1236 (9th Cir. 2001) (quoting NLRB v. Brown, 380U.S. 278, 291-92, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965)).1803438 -5 - OPPOSITION TO DEFENDANTS' EXPARTE APPFOR STAY PENDING APPEA



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at 886. As with the Co urt's merits determination , this holding is binding under lawof the case principles and the Navy presen ts no colorable basis for overturning it.

3. The Mitigation that the Court Ordered Is Both Practicableand Significantly Protective of the M arine Environment

This Cou rt's August 6 PI Order also found that "the balance of hardships tipsin favor of granting an injunction" and that "theharm to the environment, Plaintiffs,and public interest o utweighs the harm that Defendants w ould incur." Aug. 6 Orderat 19; Jan. 3 Order at 12. Again, the Court of Appeals affirmed this aspect of theCourt's ruling:

Plaintiffs have also shown that the balance of hardships tips in their favor if aproperly tailored injunction is issued providing that the Navy's operationsmay proceed if conducted under circumstances that provide satisfactorysafeguards for the protection of the environment. Moreover, the publicinterest w ould be advanced by an inju nction that required adequate mitigationmeasures.

NRDC v. W inter, 508 F.3d at 886. The Navy nevertheless argues (apparently) that astay should issue because it asserts that the Co urt's determination that the mitigationmeasures included in the Mitigation Order are practicable and needed to address theNavy's violations of law was clearly erroneous, thus tipping the balance ofhardships and the public interest against the issuance of an injun ction that includessuch measures. For the reasons stated below, this argument fails.

Since the Ninth Circuit has already determined that the public interest and thebalance of harms favor the issuance of "an injunction that require[s] adequatemitigation measures," id., the sole issue that remains for the Court of Appeals toaddress on the Navy's appeal is whether this Court abused its discretion in orderingthe Navy to adopt the mitigation m easures se t forth in the Mitigation Order. Afterreviewing the considerable evidence submitted by the parties and personally takinga Navy-guided tour of one of its sonar vessels, this C ourt properly determined thatthe measures se t forth in the Mitigation Order are both practicable for the Navy toimplement and needed to address the Navy 's violations of law. Jan. 3 Order at 13.Because these factual determinations w ere not clearly erroneous, the Navy can show

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no likelihood of prevailing on the merits of its appeal and, accordingly, its instantrequest for a stay pending appeal must be denied.

a. The Court's Determination that the Measures SetForth in the Mitigation Order Are Both Practicableand Protective of the Marine Environment Is NotClearly Erroneous

This Court's August 6 Order determined that the mitigation measures that theNavy proposed for the SOCAL exercises were "woefully inadequate andineffectual" for preventing harm to the SOCAL marine environment and forpreventing the possibility of significant effects on such environment. Aug. 6 Orderat 17. The Ninth Circuit agreed that the SOCAL exercises, as the Navy proposed toconduct them, were illegal under NEPA and the CZMA and that the Navy mustimplement additional mitigation in order to comply with these laws. NRDC v.W inter, 508 F.3d at 886-87. For the reasons set forth in the Court's MitigationOrder and those set forth below, the mitigation measures that the Court has nowordered the Navy to implement are needed to address the Navy's violations ofNEPA and the CZMA - to reduce the likelihood of significant effects on the marineenvironment and to bring the Navy's activities closer in line with the requirementsof the California Coastal Act.

Plaintiffs have also submitted many hundreds of pages of scientific evidence,declarations from eminent scientists, and the Navy's own internal documentsshowing that each of the measures that the Court ordered was practicable for theNavy to implement.

-Redacted-

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14 at 10-11, A-3 to A-l 1 (citing 6 instances between 200 and 2200 yards w hereNavy powered down but did not secure sonar).2 Moreover, as Plaintiffs discussed atlength in their opening brief, the requirement's marginal effect on training hours isextremely small. Op. Br. at 20 n.9; Ex. 14 at 10-11 (indicating that six events wouldaffect under 1% of all 317 hours of sonar use) -Redacted- Ex. 19 at 2(indicating this would be significant overestimate given ships' average rate ofspeed). Indeed, during the first three SOCAL exercises, the Navy observed a de

facto 4,000 yard safety zone, sometimes shutting down when marine mammals weresited at 4000 yards, and the Navy has n ever contended that its strike groups were notproperly trained or could not be certified during these exercises. Op. Br. at 19; Ex.14 at 10-11, A-3 to A-l 1. For these and other reasons, the Court's finding that therequirement would present a minimal imposition on the Navy is hardly erroneous.Jan. 3 Order at 15 j fi -Redacted-

The Navy further avers that the Court "did not appropriately consider" itsclaim that a 200 meter shut-down zone sufficiently reduces harm to m arinemammals. Def. Br. at 8. In fact, the Court carefully considered the evidence beforeit, and concluded that the Nav y's 1000 yard/ 500 yard/ 200 yard scheme "is grosslyinadequate to protect marine mamm als from debilitating levels of sonar exposure."Jan. 3 Order at 8, 15 (citing Exs. 5, 6; Bain Supp. Decl. flf 7, 12-13; Parsons Decl. If5, and other evidence). As the record shows, a larger safety zone is needed giventhe vast area in which significant impacts on all species are expected to occur, therecord of sonar-related in juries occurring at considerable distances from the sonararray, and the difficulty of determining the bearing of animals even when they aresighted. Id.- -Redacted- Ex. 34 at 120; Ex. 35 f 9;

All citations to "Ex." refer to the exhibits to the declaration of Josh B.Gordon filed un der seal in support of Plain tiffs' Opening Brief RegardingAppropriate Mitigation Measures for the Remaining SOCAL Exercises onDecember 14, 2007.1803438 -9 - OPPOSITION TO DEFENDANTS' EX PARTS APPFOR STAY PENDING APPEAL



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Parsons Decl. 19. The Court's findings were well considered and amplysupported by the evidence.3

Additionally, the Navy claims that, because dipping sonar and sonobuoystransmit at lower decibel levels and with shorter pulses than ships and subm arines, itshould not maintain a 2200-yard shut-down zone aroun d them. Def. Br. at 10. Theevidence before the Court, however, dem onstrates that m id-frequency sound witheven shorter pulses and far lower source levels cause some species to react stronglyfrom kilometers away. Ho row itz Decl. Ex. 28 (harbor porpoises); Horow itz Decl.Ex. 29 at 10 (NMFS, indicating strong reactions in harbor porpoises); HorowitzDecl. Ex. 78 (orcas); Bain Decl. f 6 (orcas). The Court was correct in requirin g thata similar safety zone be maintained fo r dipping sonar an d sonobuoys.

(2) Catalina BasinAccording to the Navy, the Court erred in restricting sonar from Catalina

Basin because it purp orted ly characterized that area as a "chokepoint" (Def. Br. at13), which the Navy defined, in its opening brief, as a "strategic strait or canal."Jan. 3 Order at 17 (citing Def. Br. at 11). But the Court did no such thing: on thecontrary, it made a reasonable factual findin g that - regardless of the terminologyused by the Navy - the Catalina Basin affords only limited ingress and egress andincludes a high density of marine mamm als. Jan. 3 Order at 17; see also BairdSupp. Decl. f 8; Ex. 13 at 2-7 (Nav y bathymetric map , indicating that area lies

3 The Navy cites Asarco Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980),and Am. Biosciencev. Thompson, 243 F.3d 579, 582-83 (D.C. Cir. 2001), for theproposition that Plaintiffs' declarations cannot be used to challenge the Navy'ssafety zone m itigation because they lie outside the administrative record. Def. Br. at9. Unlike those cases, however, the Court here is considering this evidence withinthe context of equitable relief, an established exception to the limit on extra-recordmaterial. Even if it were otherwise, such material would be admissible as"necessary to determine 'whether the agency has considered all relevant factors an dhas explained its decision'" or as "necessary to explain technical terms or com plexsubject matters" - all the more so given theNavy's failure to produce anadministrative reco rd for the challenged actions. Sierra Club v. Peterson. 185 F.3d349, 372 (5th Cir. 1999); The Lands Council v. Powell, 395 F.3d 1019, 1^30 (9thCir. 2005). Moreover, the Navy's one-sided approach to admissibility cannot besquared with its almost exclusive reliance on a single declarant, RAD M Bird,throughout its briefing. Finally, the Court explicitly relies both on published studiesand on declarations for its finding at issue here. Jan. 3 Ord. at 15.1803438 - 1 0 - OPPOSITION TO DEFENDANTS' EXPARTE APPFOR STAY PENDING APPEAL



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between two islands and two long escarpments);;

-Redacted-

There is noerror in the Court's findings here.

The Navy also argues that the Court did not give "proper consideration" to theNavy's general statement about its use of this area. In fact, as set forth in Plaintiffs'opening brief, the record contains extensive and unrebutted evidence demonstratingthe practicability of the Court's measure:;

-Redacted-

The evidence before the Court amply shows the effectiveness ofgeogiapmc avoidance, the biological importance of the area, and the practicabilityof the measure.

(3) Surface-ducting conditionsThe Navy argues that the Court erred in prescribing a 6-decibel power down

during surface-ducting conditions because the requirement would provide only anegligible benefit fo r marine mammals. Def. Br. at 11. This assertion is meritless.1803438 -11- OPPOSITION TO DEFENDANTS' EXPARTE AP




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In support of its position, the Navy merely restates its baseless claim that surfaceducting "only poses a threat" in combination with other factors, such as steepbathymetry or "multiple sources of sonar operating simultaneously." Def. Br. at 11.Yet, as Plaintiffs have observed (Op. Br. at 10), such a claim has been rejected evenby NMFS, which has made clear that surface ducting elevates the risk of seriousharm independent of other factors. 71 Fed. Reg. 38,718-19 ("the presence ofsurface ducts ... added to the operation of mid-frequency sonar in the presence ofcetaceans (especially beaked whales and, potentially, deep divers) may increasethe probability of producing a sound field with the potential to cause cetaceans tostrand, and therefore, necessitates caution"); see also 71Fed. Reg. 38720;

-Redacted- .; As Plaintiffs have noted, this concern isparticularly pressing here where the Navy plans to use sonar in areas rich in deep-diving species, including as many as seven beaked whale species such as Perrin'sbeaked whale, whose entire known range exists between Monterey and SanDiego. Ex. 12 at 578-79; Baird Decl. 12.

Similarly, the Navy 's suggestion that the Court did not properly consider theNav y's training needs (Def. Br. at 11) has no merit. During its briefing (Def. Op.Br. at 27), the Navy argued that powering down during surface-ducting conditionswas impractical because they are difficult to track, a fact that the Court considered(Jan. 3 Order at 17).;

-Redacted-

Indeed, the Navy itself states that "[i]n order to become proficien t in MFA sonaruse, Sailors must learn to identify when surface ducting conditions exist." Def. Op.Br. at 27. Furthermore, the Navy has employed power dow ns under certainconditions in the past. Ex. 15 at 2. The Court clarified the surface-ducting measurein its Modified Order, inserting the qualifier "significant" to ensure that the balance1803438 - 1 2 - OPPOSITION TO DEFENDANTS' EXPARTE APP

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between training and environmental protection was properly calibrated. Jan. 10Order at 4. Its prescription of the requirement is supported by the record and is noterroneous.

(4) Aerial mon itoringThe Court has ordered the Navy to provide dedicated aerial monitoring for

one hour before the start of sonar use and additional monitoring by participatingaircraft for the duration of sonar exercises. Jan. 10 Order at 3. This clarification ofthe Court's intent plainly addresses the Navy's expressed concern that the injunctionwould require dedicated and continuous aerial monitoring over several weeks. Jan.10 Order at 3 n.2. The Navy has not challenged the efficacy of pre-exercise aerialmonitoring by dedicated aircraft. To the contrary, such monitoring was required bythe Navy and NMFS for certain exercises during RIM PAC 2006 and the tenure ofthe 2006 NDE. 72 Fed. Reg. 38732 (m easure 9); Ex. 15 at 3; see also HorowitzDecl. Ex. 44 at 248 (noting the greater effectiveness of dedicated observers). As theCourt has repeatedly noted based on a thorough review of the evidence, the Navy'scurrent methods of detection are poor at detecting many species of marinemammals. Jan. 3 Order at 8, Aug. 6 Order at 12 (citing declarations and publishedpapers); see also Horow itz Decl. Ex. 43 at 3. The Court properly found that therequirement to conduct pre-exercise monitoring is both practicable and needed.

In sum, the carefully-considered measures se t forth by this Court fulfill theaims set by the Ninth Circuit and are well-suppo rted by the record. The evidencemore than am ply supports the C ourt's conclusion that these m easures are bothpracticable for the Navy to implement and effective in preventing unnecessary harmto marine life.

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b. The Balance of the Harms and Public Interest FavorImposition of the Mitigation Measures that the CourtHas Ordered

As the Ninth Circuit has acknowledged, "[t]he preservation of ourenvironment, as required by NEPA and [other environmental statutes], is clearly inthe public interest." Earth Island Institute v. U.S. Forest Service,44 2 F.3d 1147,1177 (9th Cir. 2006). Thus, fo r example, inNRDC v. Evans, 279 F.Supp.2d 1129,1190-91 (N.D. Cal. 2003), the court acknowledged that the public has importantinterests both in "military preparedness" and in the "survival and flourishing ofmarine mammals and endangered species, as well as a healthy marine environment."Id. at 1190-91. Balancing these interests, the court concluded that the public interestfavored an injunction "carefully tailored to reduce the risk to marine mammals andendangered species" against the Navy's worldwide use of low-frequency sonar. Id.;see alsoMakau v. Rumsfeld, 163 F.Supp.2d 1202, 1221-22 (D. Haw. 2001) (grantingpreliminary injunction under NEPA holding that public interest favored protection ofspecies threatened by proposed military action despite countervailing claims ofnational security).In addition, "the interest in having government officials act in accordancewith law" in environmental cases "invokes a public interest of the highest order."Seattle Audubon Soc. v. Evans, 111 F.Supp. 1081, 1096 (W.D. Wash. 1991)(granting preliminary injunction), aff d, 952 F.2d 297 (9th Cir. 1991); see also Fundfor Animals v. Clark, 27 F.Supp.2d 8, 15 (D.D.C. 1998) (granting preliminaryinjunction under NEPA, acknowledging public interest in "the meticulouscompliance with the law by public officials").

In this case, the Ninth Circuit has squarely held that "the public interest wouldbe advanced by an injunction that required adequate mitigation measures." NRDCv. W inter, 508 F.3d at 886. Moreover, "the balance of hardships tips in [plaintiffs']favor if a properly tailored injunction is issued providing that the Navy's operations1803438 -14- OPPOSITION TO DEFENDANTS' EX PARTS APPFOR STAY PENDING APPEA



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may proceed if conducted under circumstances that provide satisfactory safeguardsfor the protection of the environment." Id . For the reasons stated above, themitigations measures ordered by this Court are "properly tailored" in accordancewith the Ninth Circuit's instructions. They are practicable for the Navy toimplement and are needed to address the Navy's violations of law and to preventneedless harm to the marine environment. As a result, the Navy cannot prevail onany contention that the Mitigation Order tips the balance of the public interest or thebalance of the harms against injunctive relief.

C. Traditional Deference to the Executive Branch Regarding Mattersof National Security Cannot Justify a Stay

The traditional deference accorded to the executive branch regarding mattersof national security cannot and was never intended to insulate the executive'sactions from judicial review an d cannot excuse the Navy from employingreasonable and appropriate mitigation measures during its training exercises. SeeSan Luis Obispo, 449 F.3d at 1035 ("There is no 'national defense' exception toNEPA.... The Navy, just like an y federal agency, must carry out its NEPA mandateto the fullest extent possible and this mandate includes weighing the environmentalcosts of the [project] even though the project has serious national securityimplications." (internal quotation omitted)); see also Ex. 16 (enjoining Navy's useof MFA sonar during PJMPAC exercises); NRDC v. Evans, 279 F.Supp.2d 1129(N.D. Cal. 2003) (enjoining Navy's worldwide use of low-frequency sonar); NRDCv. Navy, 857 F.Supp. 734 (C.D. Cal. 1994) (enjoining Navy's use of underwaterexplosives).

The Navy has raised national security concerns repeatedly throughout thislitigation: it has articulated such concerns in its briefing, and it has submittedvoluminous evidence and numerous classified declarations (including, improperly, anew one submitted with this application) in support of its contentions. Plaintiffs, onthe other hand, submitted evidence demonstrating that the Navy has employed most1803438

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of these same measures, as well as even mo re stringent measures, in similarexercises in the past, and that the Navy has trained, certified , and deployed its troopswith such measures in place.

The Court reviewed and carefully considered all of the evidence before it, andgave more than due deference to the Navy's national security claims in crafting itsOrder. Indeed, the C ourt's M itigation Order declined to impose many of theconditions recommended by Plaintiffs and by the California Coastal Comm ission -including power-downs in low-visibility conditions and more extensive geographicmitigation, despite the undisputed efficacy of such measures in preventing harm tomarine mammals - and instead adopted m any of the Nav y's proposed mitigationprovisions such as enhanced monitoring, which the Navy argued was easier toimplement than geographic exclusions.

But contrary to the Nav y's representations, deference is not a blank check toviolate the law. The Nin th Circuit has repeatedly mad e clear that "[tjhere is no'national defense' exemption to NEPA." San Luis Obispo, 449 F.3d at 1035. TheNavy cannot even begin to meet its burden of showing that the carefully craftedMitigation Order failed to adequately take into account and defer to the Navy'salleged national security concerns.4

The cases cited by the Navy (Br. at 14-15) do not support its broad claims.Gilligan v. Morgan, 413 U.S. 1, 5, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), forinstance, expressly contradicts the Navy's position. There, in addressing a "broadcall on judicial power to assume continuing regulatory jurisdiction" over a segmentof the military, the Court held that "there is nothing in our Nation's history or in thisCo urt's decided cases, including our holding today, that can properly be seen asgiving any indication that actual or threatened injury by reason of unlawful activitiesof the military w ould go unnoticed or unremedied. Id . at 11-12 n. 16; see alsoHolmes v. Cal Army Nat'I Guard, 124 F.3d 1126, 1133 (9th Cir. 1997) (holdingJ- . . \_4. JL / *j *\J^J \ IHJ V^AJL . *\J\J+SI I J.J.\_f JVJiiX U.JLU-V V*A LJW JL WI, WW U.J. I,UISWI-LJW\_l A HJ \J--LLJWAV *.JU vyA J.guessing at agency's "subjective intent" rather than basing its decision on theobjective evidence regarding the Nav y's actions). As stated above, the military imslong been required to com ply with NEP A and num erous other environmental laws,even though national security interests are involved. See, e.g., San Luis Obispo, 449F.3d at 1035; No GW ENAlliance v. Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988).1803438 - 1 6 - OPPOSITION TO DEFENDANTS' EX PARTS APP




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D. The Equities Do Not Favor Issuance of a StayThe equities do not warran t a stay under the circumstances here. As

discussed supra at II.B.3, this Court correctly determined (and the Ninth Circuitaffirmed) that the balance of harms and the public interest favor injunctive relief,and the Court worked diligently to strike an appropriate balance betw een speciesprotection an d naval readiness. The result is a carefully tailored in junction thatallows the Navy to go forward with its SOCAL exercises while putting safeguardsin place to help minimize harm to marine life. The temporary burden of having toimplement additional protective measures during theremaining SOCAL exercises -many of which the Navy has implemen ted in past exercises w hile still training andcertifying its troops for deployment - cannot outweigh the "near certainty" ofirreparable harm to the environment should the Navy be permitted to carry out itsexercises without proper protections. Aug. 6 Order at 19;Jan. 3 Order at 12;SanLuis Obispo, 44 9 F.3d at 1035.

The Navy makes essentially four arguments why the equities mandate a stay,none of which has merit. First, the Navy emphasizes the importance of MFA sonartraining to national security and states that this Co urt has effectively enjoined theexercises through overbroad measures, creating "thesame practical effect as ablanket injunction." Navy Br. at 16. But nearly every m easure imposed by theCourt is one that the Navy has implemented before, often on its own accord. It hasemployed a 12 nm coastal buffer zone; -Redacted-aerial monitoring; special provisions for strong surface ducting conditions; and evensafety zones greater than the one required here. See Ex. 15 at 1-2 (coastal zone andsurface ducting provisions) -Redacted-

j 72 Fed. Reg. 38732 and Ex. 15 at 3(aerial monitoring); Op. Br. at 19, Ex. 28 at 1-3, Ex. 29 at 27, and Ex. 14 at 10-11,A-3 to A-l 1 (safety zone enlargements). Each of the specific measures required bythe Court is practicable and will reduce harm, as d iscussed supra at II.B.3.a.1803438 - 1 7 - OPPOSITION TO DEFENDANTS' EXPARTE APPFOR STAY PENDING APPEAL



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Though the employment of these measures m ay require adjustments to the N avy 'sprocedures, it strains credulity to believe that the Navy is incapable of training itssoldiers while taking these steps to protect whales and other marine life.

Second, the Navy argues that this Court did not give due consideration to thepub lic's interest in national defense. Navy Br. at 17. But the Ninth C ircuit squarelyheld in this case that "the public interest wo uld be advanced by an injun ction thatrequired adequate mitigation measures." NRDC v. W inter, 508 F.3d at 886. Asdiscussed above, this Court reviewed the considerable evidence submitted by theparties, personally toured one of the Nav y's sonar vessels, an d made factual findingsthat the public's interest in military readiness would not be unduly harmed by themeasures se t forth in the Mitigation Order. Jan 3 Order at 12-13. Nothing more wasrequired.

Third, the Navy points to two statutes not at issue in the C ourt's ruling, theMM PA and ESA, and argues in essence that the Navy 's compliance with thosestatutes weighs against an injunction for its violations of NEPA and the CZMA.Navy Br. at 19-20. Puttin g aside the fact that the Navy "complied" with the MM PAonly via the issuance of a National Defense Exemption excusing it from thesubstantive protections of the Act, and that the merits of Plaintiffs' allegations o fESA vio lations are still to be judged , the Navy cites no precedent for the propositionthat violations of environmental laws can be remedied on ly if they are transgressedin bulk. Indeed, as stated above, the Ninth C ircuit has made clear that there is nonational defense exemption to NEPA .

Last, the Navy reprises its argument that the harm to Plaintiffs from theSOCAL exercise as planned wou ld be "minimal." Navy Br. at 21. But this C ourt'srepeated findings to the contrary were unequivocally affirmed by the C ourt ofAppeals, which held that Plaintiffs have demonstrated "the possibility of irreparableinjury if relief is not granted" and held that injunctiv e relief o f precisely the sort

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awarded is warranted. NRDC v. W inter, 508 F.3d at 886. Harm to Plaintiffs thusweighs heavily against a stay.

The Navy's appeal to equities is particularly weak given the manyopportunities theNavy hashad- andspurned - to bring its training exercises intocompliance with the law. NRDC has been advocating for enhanced mitigation ofthe impacts of MFA sonar use from the outset in every forum available to it, andthe CC C itself warned the Navy a year ago that its SOCAL exercises wo uld beillegal absent meanin gful additional mitigation. This C ourt's August 6Preliminary Injun ction Order, together w ith the Ninth Circuit's call for "aninjunction that require[s] adequate mitigation measures," NRDC v. W inter, 508 F.3dat 886, put the Navy firmly on notice that it could not continue w ith business-as-usual in these exercises. As one court observed in enjoining a naval weaponstesting program, any hardship that the Navy might suffer "is likely the directresult of the failure to comply with [federal environmen tal laws]" and its "refusalor inability to recogn ize [that failure] at an earlier date." NRDC v. Navy, 857F.Supp. at 741 n.13. That the Navy failed to heed these warnings and undertakethe sort of planning that would have avoided the hardship it now suffers does notjustify a stay.

The measures ordered by this Court strike an educated, evidence-basedbalance between protecting m arine life an d allowing the Navy to go forward withits training and certification of troops, thus minimizing harm to the publicinterest. Any stay granted by this Court would have the practical effect ofallowing many or all of the challenged exercises to go forward unmitigated,leaving Plaintiffs without a remedy despite the Navy's clear violations of law.5The injunction should therefore remain in place pending appeal.

Even if this Court were inclined to grant a stay pending appeal, the Navy'sproposed order is unjustifiably broad in that it calls for a stay of the order "pendingthe conclusion of any appeal. As written, this is tantamount to a vacation of theinjunction, since the Navy would be under no obligation to prosecute an appeal.1803438 - 1 9 - OPPOSITION TO DEFENDANTS' EX PARTS APPFOR STAY PENDING APPEA



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m. C O N C L U S I O NFor the reasons stated above, P laintiffs respectfully request that the Court

deny Defendants' Ex Porte Application to stay the Court's January 3 Order IssuingPreliminary Injunction, as subsequently modified by the Court's January 10 OrderIssuing M odified Preliminary Injunction.

Dated: January 11, 2008

Dated: January 11, 2008

1803438

IRELL & MAN ELLA LLPRichard B.KendallGregory A. PayerJosh B. Gordc

NATURAL RESOURCES DEFICOUNCIL, INC.Joel R. ReynoldsAndrew E. WetzlerCara A. HoiBy:. gU-^XOtJoeOKTReynolds /ATTORNEYS FOR PLAINTIFFS

OPPOSITION TO DEFENDANTS' EX PARTS APP.

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Documents

Memo Opposing Stay Pending Appeal