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Conservation Council for Haw. v. National Marine Fisheries Service

United States District Court, D. Hawaii

March 31, 2015

CONSERVATION COUNCIL FOR HAWAII, et al., Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, et al., Defendants. NATURAL RESOURCES DEFENSE COUNCIL, INC, et al., Plaintiffs,
v.
NATIONAL MARINE FISHERIES SERVICE, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Conservation Council for Hawaii, a non-profit corporation, Animal Welfare Institute, a non-profit corporation, Center for Biological Diversity, a non-profit corporation, Ocean Mammal Institute, a non-profit corporation, Plaintiffs (1:13-cv-00684-SOM-RLP): David L. Henkin, LEAD ATTORNEY, Earthjustice Legal Defense Fund, Honolulu, HI.

For Natural Resources Defense Council, Inc., Plaintiff in CV 14-00153 SOM-RLP, Cetacean Society International, Plaintiff in CV 14-00153 SOM-RLP, Animal Legal Defense Fund, Plaintiff in CV 14-00153 SOM-RLP, Pacific Environment and Resources Center, Plaintiff in CV 14-00153 SOM-RLP, Michael Stocker, Plaintiff in CV 14-00153 SOM-RLP, Consol Plaintiffs (1:13-cv-00684-SOM-RLP): Colin A. Yost, LEAD ATTORNEY, Law Office of Colin A. Yost, Pan Am Building, Honolulu, HI; Jennifer Ann Sorenson, LEAD ATTORNEY, PRO HAC VICE, Natural Resources Defense Council, San Francisco, CA; Nancy Sharman Marks, LEAD ATTORNEY, PRO HAC VICE, Natural Resources Defense Council, New York, NY; Stephen Zak Smith, LEAD ATTORNEY, PRO HAC VICE, Natural Resources Defense Council, Santa Monica, CA.

For National Marine Fisheries Service, This party is also a Defendant in CV 14-00153 SOM-RLP, United States Department of Commerce, Penny Pritzker, Secretary of Commerce -- This party is also a Defendant in CV 14-00153 SOM-RLP, United States Department of the Navy, This party is also a Defendant in CV 14-00153 SOM-RLP, United States Department of Defense, Chuck Hagel, Secretary of Defense, United States of America, Eileen Sobeck, in her official capacity as the Assistant Administrator for Fisheries - Defendant in CV 14-00153 SOM-RLP, Kathryn Sullivan, in her official capacity as the Acting Administrator of the National Oceanic and Atmospheric Administratiion -- Defendant in CV 14-00153 SOM-RLP, Ray Mabus, in his official capacity as the Secretary of the Navy - Defendant in CV 14-00153 SOM-RLP, Consol Defendants (1:13-cv-00684-SOM-RLP): Harry Yee, LEAD ATTORNEY, Office of the United States Attorney, Prince Kuhio Federal Building, Honolulu, HI; Kevin W. McArdle, LEAD ATTORNEY, U.S. Department of Justice, Environment and Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC; Ty Bair, LEAD ATTORNEY, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC.

For Natural Resources Defense Council, Inc., Cetacean Society International, Animal Legal Defense Fund, Pacific Environment and Resources Center, Michael Stocker, Plaintiffs (1:14-cv-00153-SOM-RLP): Jennifer Ann Sorenson, LEAD ATTORNEY, PRO HAC VICE, Natural Resources Defense Council, San Francisco, CA; Stephen Zak Smith, LEAD ATTORNEY, PRO HAC VICE, Natural Resources Defense Council, Santa Monica, CA; Colin A. Yost, Law Office of Colin A. Yost, Pan Am Building, Honolulu, HI; Nancy Sharman Marks, PRO HAC VICE, Natural Resources Defense Council, New York, NY.

For National Marine Fisheries Service, Penny Pritzker, in her official capacity as the Secretary of the Department of Commerce, Kathryn Sullivan, in her official capacity as the Acting Administrator of the National Oceanic and Atmospheric Administration, Eileen Sobeck, in her official capacity as the Assistant Administrator for Fisheries, Department of the Navy, Secretary of the Nav Ray Mabus, in his official capacity as the Secretary of the Navy, Defendants (1:14-cv-00153-SOM-RLP): Kevin W. McArdle, LEAD ATTORNEY, U.S. Department of Justice, Environment and Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC; Ty Bair, LEAD ATTORNEY, U.S. Department of Justice, Environment and Natural Resources Division, Washington, DC.

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AMENDED ORDER GRANTING CONSERVATION COUNCIL'S MOTION FOR SUMMARY JUDGMENT, GRANTING NRDC'S MOTION FOR SUMMARY JUDGMENT, DENYING NRDC'S MOTION FOR LEAVE TO SUBMIT EXTRA-RECORD EVIDENCE, AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO STRIKE

Susan Oki Mollway, Chief United States District.

I. INTRODUCTION.

This case involves challenges by environmental groups to federal government actions affecting vast areas of the Pacific Ocean and the marine life in those areas. Before the court is a motion for summary judgment filed in Civil No. 13-00684 by Plaintiffs Conservation Council for Hawaii, Animal Welfare Institute, Center for Biological Diversity, and Ocean Mammal Institute (collectively, " Conservation Council" ), and a separate motion for summary judgment filed in Civil No. 14-00153 by Plaintiffs Natural Resources Defense Council, Inc., Cetacean Society International, Animal Legal Defense Fund, Pacific Environment and Resources Center, and Michael Stocker (collectively, " NRDC" ). The cases were consolidated by stipulation, but the stipulation provided that separate summary judgment motions could be filed by the parties in each case. See ECF Nos. 22, 23, 24 (ECF Nos. cited in this order refer to the docket sheet in Civil No. 13-00684). The court grants both summary judgment motions.

The government actions that are challenged in this case permit the Navy to conduct training and testing exercises even if they end up harming a stunning number of marine mammals, some of which are endangered or threatened. Searching the administrative record's reams of pages for some explanation as to why the Navy's activities were authorized by the National Marine Fisheries Service (" NMFS" ), this court feels like the sailor in Samuel Taylor Coleridge's " The Rime of the Ancient Mariner" who, trapped for days on a ship becalmed in the middle of the ocean, laments, " Water, water, every where, Nor any drop to drink."

II. FACTUAL BACKGROUND.

The issues in this case are best understood by examining specific details, but the court begins by providing a broad overview. This introductory section thus has the limited purpose of providing the context for the challenges raised by Conservation Council and NRDC to the actions taken by NMFS and the Navy. Illustrations will be provided in connection with the court's analysis of specific challenges.

The Navy proposed to conduct training and testing activities in an area of the Pacific Ocean known as the Hawaii-Southern California Training and Testing (" HSTT" ) Study Area. This area includes (1) the Southern California Range Complex, consisting of San Diego Bay and approximately 120,000 square nautical miles of ocean between Dana Point, California, and San Diego, California; (2) the Hawaii Range Complex, consisting of approximately 2.7 million square nautical miles of ocean around the Hawaiian Islands; (3) Silver Strand Training Complex, on and adjacent to the Silver Strand, an isthmus between San Diego Bay and the Pacific Ocean; (4) pierside locations in Hawaii and Southern California; and (5) a transit corridor between Southern California and Hawaii. See ECF No. 70, PageID # 13556; ECF No. 79, PageID # 14041. Thirty-nine marine mammal species have been identified as occupying the HSTT Study Area, eight of which are endangered and one of which is threatened under the Endangered Species Act (" ESA" ). See ECF No. 66-19, PageID # 10214.

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In 2010, the Navy began the process of reviewing the environmental impact of its proposed activities and invited NMFS to act as a cooperating agency in the preparation of the environmental impact statement (" EIS" ). The Navy ultimately issued its corrected Final Environmental Impact Statement (" FEIS" ) on August 30, 2013, and NMFS adopted that FEIS on December 5, 2013. ECF No. 66-18, PageID # 10201; ECF 66-21, PageID # 10267. While working on the FEIS, the Navy was also consulting with NMFS on compliance with the Endangered Species Act and was applying for Letters of Authorization from NMFS under the Marine Mammal Protection Act (" MMPA" ) that would allow the Navy to take, incidental to the Navy's training and testing activities, a certain number of marine mammals in the HSTT Study Area.

Under the MMPA, " to take" means " to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(13). The Navy's proposed activities included " [s]onar use, underwater detonations, airguns, pile driving and removal, and ship strike," which the NMFS viewed as " the stressors most likely to result in impacts on marine mammals that could rise to the level of harassment, thus necessitating MMPA authorization." ECF No. 66-19, PageID # 10209.

The Navy sought authorization for the incidental take of the HSTT Study Area's thirty-nine species of marine mammals by Level B harassment. Id. at PageID # 10208. As applied to military readiness activities, Level B harassment is " any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered." 16 U.S.C. § 1362(18)(B)(ii). In addition, the Navy sought authorization for the incidental take of twenty-four of the thirty-nine species of marine mammals by Level A harassment or mortality. ECF No. 66-19, PageID # 10208. Level A harassment is " any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild." 16 U.S.C. § 1362(18)(B)(i).

In December 2013, pursuant to the MMPA, NMFS issued its Final Rule applicable to the period from December 2013 through December 2018, and issued Letters of Authorization permitting the Navy to take marine mammals in the HSTT Study Area during that period. In summary, NMFS determined that the effect of the activities proposed by the Navy would have a " negligible impact" on all the marine mammal species and stocks that would be affected. See ECF No. 66-19, PageID # 10249. NMFS set authorized take levels for Level A and Level B harassment for each such species or stock. The authorized take levels were the levels requested in the Navy's application and included authorized mortalities. See id. at PageID #s 10244-48.

Also in December 2013, the NMFS-ESA Cooperation Division issued a final Biological Opinion concerning the Navy's activities. The Biological Opinion included NMFS's finding of " no jeopardy" to endangered whale species, authorization for an " unspecified number" of takes of turtles by vessel strikes, and a finding of " no jeopardy" to turtles.

Amended versions of the December 2013 LOAs and Biological Opinion subsequently issued. See ECF No. 67-22, PageID #s 12766-69; ECF No. 67-23, PageID #s 12784-87; ECF No. 67-19.

Conservation Council has sued NMFS, which falls under the jurisdiction of the

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Department of Commerce, and other related parties, seeking judicial review under the Administrative Procedure Act (" APA" ) of administrative decisions that Conservation Council asserts violate the National Environmental Policy Act (" NEPA" ), the MMPA, and the ESA. See ECF No. 78. NRDC has sued NMFS and related federal officials as well as the Navy, similarly seeking judicial review under the APA for alleged violations of the MMPA and the ESA. See ECF No. 73. Plaintiffs in both cases seek summary judgment on all their claims.

For their part, Defendants contend that, having complied with the requirements of NEPA, the MMPA, and the ESA, they are entitled to summary judgment in their favor in both actions. See ECF No. 68; ECF No. 71.

III. STATUTORY FRAMEWORK.

This case requires analysis of four statutory schemes.

A. MMPA.

The MMPA was enacted to address concern that " certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities." 16 U.S.C. § 1361(1). Congress noted that " such species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population." 16 U.S.C. § 1361(2).

The MMPA imposes a general prohibition on the " taking" of marine mammals unless the taking falls under a statutory exception. See 16 U.S.C. § 1371(a).

One statutory exception to the prohibition on the taking of marine mammals permits " citizens of the United States who engage in a specified activity (other than commercial fishing) within a specified geographical region" to take " small numbers of marine mammals of a species or population stock" during " periods of not more than five consecutive years each" if the Secretary[1] finds that " the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses." 16 U.S.C. § 1371(a)(5)(A)(i).

Congress amended the MMPA to exempt military readiness activities from the " specified geographical region" and " small numbers" requirements in 16 U.S.C. § 1371(a)(5)(A)(i). See 16 U.S.C. § 1371(a)(5)(F). Therefore, take of marine mammals incidental to military readiness activities, such as the Navy's activities at issue in this case, may be permitted if the taking will have a " negligible impact" on an affected species or stock and will not have " an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses." 16 U.S.C. § 1371(a)(5)(A)(i).

If those two findings are made, the Secretary must prescribe regulations setting forth " permissible methods of taking" and

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" other means of effecting the least practicable adverse impact on such species or stock and its habitat." 16 U.S.C. § 1371(a)(5)(A)(i)(II)(aa). In determining the " least practicable adverse impact" with respect to

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a military readiness activity, the Secretary is required to consider " personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity." 16 U.S.C. § 1371(a)(5)(A)(ii).

B. ESA.

The ESA requires federal agencies, in consultation with the Secretary of Commerce, to " insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). " Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02.

The Secretary of Commerce has delegated responsibility for administering the ESA with respect to threatened and endangered marine species to NMFS. See 50 C.F.R. § 17.2; see also Trout Unlimited v. Lohn, 645 F.Supp.2d 929, 932 (D. Or. 2007).

After completing consultation regarding a proposed action, NMFS must prepare a Biological Opinion that discusses whether the proposed action is likely to cause jeopardy and the effects of the proposed action on listed species or on the species' critical habitat. 50 C.F.R. § 402.14(h). In preparing its Biological Opinion, NMFS must use " the best scientific and commercial data available." 50 C.F.R. § 402.14(g)(8).

If NMFS concludes that a proposed action will result in the incidental taking of an endangered or threatened species but will not cause jeopardy, it must include in its Biological Opinion an " incidental take statement" specifying, among other things, " the impact of such incidental taking on the species" affected. See 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). If an endangered or threatened species of marine mammal is involved, the take must be authorized under the MMPA. See 16 U.S.C. § 1536(b)(4)(C). Under the ESA, a taking that complies with an incidental take statement " shall not be considered to be a prohibited taking of the species concerned." See 16 U.S.C. § 1536(o)(2).

C. NEPA.

NEPA is the " basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). Congress enacted NEPA to ensure that all federal agencies would factor environmental considerations into decisionmaking.

To achieve this goal, NEPA requires a federal agency to prepare an EIS for " major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS " shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.

An EIS shall " [r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a). " [S]ubstantial treatment" must be devoted " to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits." 40 C.F.R. § 1502.14(b). A " no action" alternative also must be considered. 40 C.F.R. § 1502.14(c).

In reviewing an EIS, courts must ensure that the agency has taken a " hard look" at the environmental consequences of the proposed action. See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003); Smallwood v. U.S. Army Corps of Eng'rs, Civ. No. 08-00512 DAE-KSC, 2009 WL 196228, at *10 (D. Haw. Jan. 26, 2009).

D. Administrative Procedure Act.

The APA is the vehicle through which challenges to agency action as violative of the MMPA, ESA, and NEPA are brought to court. Oregon Natural Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007) (review of ESA challenge under the APA); Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 858 (9th Cir. 2005) (review of MMPA and NEPA challenges under the APA).

Under the APA, a court must set aside agency action that is " arbitrary" or " capricious." 5 U.S.C. § 706; see also Butte Envtl. Council v. U.S. Army Corps of Eng'rs, 620 F.3d 936, 945 (9th Cir. 2010). Review under the arbitrary and capricious standard is " highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision." Sacora v. Thomas, 628 F.3d 1059, 1068 (9th Cir. 2010) (internal quotation marks omitted). " A reasonable basis exists where the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made." Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (internal quotation marks omitted). An agency's decision will be set aside only if

it has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Butte, 620 F.3d at 945 (internal quotation marks omitted). A court may not " infer an agency's reasoning from mere silence." Crickon v. Thomas, 579 F.3d 978, 982 (9th Cir. 2009) (internal quotation marks omitted). " [E]ven when an agency explains its decision with less than ideal clarity, a reviewing court will not upset the decision on that account if the agency's path may reasonably be discerned." Id.

IV. LEGAL STANDARD.

The parties ask this court to resolve their dispute through summary judgment motions. Summary judgment shall be granted when " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (2010); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). However, in the context of reviewing an administrative decision under the APA, " there are no disputed facts that the district court must resolve." Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). " [T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id.; see also City & Cnty. of San Francisco v. United States, 130 F.3d 873, 877 (9th Cir. 1997). " [S]ummary judgment is an appropriate mechanism for deciding the legal question of whether the agency could reasonably

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have found the facts as it did." Occidental, 753 F.2d at 770.

V. EXTRA-RECORD MATERIAL.

A. NRDC's Motion for Leave to Submit Extra-Record Evidence is Denied.

Judicial review of agency action is generally limited to the administrative record. Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005). There are narrow exceptions to this general rule. Extra-record evidence may be allowed when " (1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014) (quoting Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010)). NRDC relies on the third exception, arguing that extra-record evidence is necessary to clarify complex scientific concepts for the court. See ECF No. 76, PageID # 13857.

The court does not agree with NRDC that it needs the extra-record evidence NRDC wishes to submit. The exceptions to the general rule against extra-record evidence " operate to identify and plug holes in the administrative record." Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). NRDC fails to identify any holes in the administrative record that need to be plugged. Many of the terms and concepts NRDC identifies as warranting explanation are adequately explained in the record or need not be reviewed in such depth that additional evidence is needed.

B. Defendants' Motion to Strike is Granted in Part and Denied in Part.

Defendants move to strike the Declaration of Robin W. Baird, Ph.D., and Exhibits 1, 3, 4, and 5 to the declaration, arguing that no exception to the general rule barring extra-record ...


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