Case 8:07-cv-00335-FMC-FMO Document 135 Filed 01/22/2008 Page 1 of 7

1 EDMUND G. BROWN JR.

Attorney General of the State of California
2 J. MATTHEW RODRIQUEZ
Senior Assistant Attorney General
3 JAMEE JORDAN PATTERSON, State Bar No. 100967
Supervising Deputy Attorney General
4 110 West A Street, Suite 1100
San Diego, CA 92101
5 P.O. Box 85266
San Diego, CA 92186-5266
6 Telephone: (619) 645-2023
Fax: (619) 645-2012
7 Email: Jamee.Patterson@doj.ca.gov
8 Attorneys for Intervenor California Coastal Commission
9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE CENTRAL DISTRICT OF CALIFORNIA
11
12
13
SACV 07-0335 FMC (FMOx)
14 NATURAL RESOURCES DEFENSE
COUNCIL, INC., et al., INTERVENOR CALIFORNIA
15 COASTAL COMMISSION’S
Plaintiffs, OPPOSITION TO
16 DEFENDANTS’ EX PARTE
v. MOTIONS FOR PARTIAL
17 STAY AND VACATUR
18 DONALD C. WINTER, Secretary of the Hearing: TBD
Navy, et al., Time: TBE
19 Courtroom: 750
Defendants, Judge: The Honorable
20 Florence-Marie
Cooper
21 CALIFORNIA COASTAL
COMMISSION,
22
Intervenor.
23
24
25 PRELIMINARY STATEMENT
26 Intervenor California Coastal Commission opposes defendants’ ex parte
27 application for partial stay and immediate vacatur of this Court’s January 10, 2008
28 preliminary injunction. Neither the stay nor vacatur of the preliminary injunction

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1 is warranted or appropriate. This Court has expressly weighed the national

2 security interests regarding the Navy’s training exercises against the need for
3 environmental protection and determined that it would be appropriate for the Navy
4 to proceed with those exercises in the interests of national security under specified
5 conditions. The President has now issued an order which attempts to directly
6 contradict this Court’s order. The President’s order provides only a cursory basis
7 for his decision and the federal government has refused to disclose any explanation
8 whatsoever of the reasons offered by the Secretary of Commerce for the
9 exemption. In the absence of any such disclosure, it appears that the President
10 simply disagrees with the conclusions of this Court. Under the Constitution of the
11 United States of America the President cannot review or overturn an order of this
12 Court, an Article III court, because to do so renders this Court’s order an advisory
13 opinion. Such a result violates the doctrine of separation of powers.
14 The Commission also joins plaintiffs, Natural Resources Defense Council
15 et al., in urging that there is no emergency justifying the Council on Environmental
16 Quality determination that the Navy may rely on alternative methods of complying
17 with the National Environmental Policy Act. Any “emergency” is of the Navy’s
18 own creation.
19 ARGUMENT
20 Since 1792 the United States Supreme Court and lower courts have
21 consistently held that the executive and legislative branches of our government are
22 not authorized to review or overturn the judicial acts or opinions of an Article III
23 court. Hayburn’s Case, 2 U.S. 408, 2 Dall. 409, 410 fn* (1792). “[B]y the
24 constitution, neither the secretary at war, nor any other executive officer, nor even
25 the legislature, are authorized to sit as a court of errors on ... judicial acts or
26 opinions ....” As the Supreme Court stated in Plaut v. Spendthrift Farm, Inc., 514
27 U.S. 211, 218-219 (1995)
28 ///

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1 “The second type of unconstitutional restriction upon the

exercise of judicial power identified by past cases is
2 exemplified by Hayburn's Case, 2 Dall. 409 (1792), which
stands for the principle that Congress cannot vest review of the
3 decisions of Article III courts in officials of the Executive
Branch.”
4
5 The Court further explained,
6 “Article III establishes a ‘judicial department’ with the
7 ‘province and duty ... to say what the law is’ in particular cases
and controversies. Marbury v. Madison, 1 Cranch 137, 177, 2
8 L.Ed. 60 (1803). The record of history shows that the Framers
crafted this charter of the judicial department with an expressed
9 understanding that it gives the Federal Judiciary the power, not
merely to rule on cases, but to decide them, subject to review
10 only by superior courts in the Article III hierarchy-with an
understanding, in short, that ‘a judgment conclusively resolves
11 the case’ because ‘a “judicial Power” is one to render
dispositive judgments.’ Easterbrook, Presidential Review, 40
12 Case W.Res.L.Rev. 905, 926 (1990).” Id.

13 See also, Taylor v. United States, 181 F.3d 1017, 1024 (9th Cir. 1998) [reaffirming
14 the concept that court decisions may not lawfully be revised, overturned or refused
15 faith and credit by another department of government]; Chester James Antieau &
16 William J. Rich, Modern Constitutional Law, 627 (2nd ed. 1997) [the guarantee of
17 Article III of an independent federal judiciary prevents review of judicial decisions
18 by Congress or the executive]. The
19 Second Circuit in Town of Deerfield, N.Y. v. F.C.C., 992 F.2d 420, 428 (2nd Cir.
20 1993) summarized the law as follows:
21 “A judgment entered by an Article III court having
jurisdiction to enter that judgment is not subject to review by
22 a different branch of the government, for if a decision of the
judicial branch were subject to direct revision by the
23 executive or legislative branch, the court’s decision would in
effect be merely advisory. See, e.g., United States v. Ferreira,
24 54 U.S. (13 How.) at 49-52. ‘It is, emphatically, the province
and duty of the judicial department to say what the law is.’
25 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60
(1803).”
26
27 The Court further explained that Congress cannot prescribe a rule for the decision
28 of a cause in a particular way and cannot provide for executive branch review of a

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1 judicial determination. Id. The Court reasoned: “[s]imply put, if a judgment of an

2 Article III court were subject to revision by a coordinate branch, it would not be
3 the exercise of judicial power.” Id. (emphasis in original.) The Court concluded
4 that “[j]udgments within the powers vested in courts by the Judiciary Article of the
5 Constitution may not lawfully be revised, overturned or refused faith and credit by
6 another Department of Government.” Id. (emphasis in original.) Article III courts
7 render no judgments not binding and conclusive on the parties and none that are
8 subject to later review or alteration by administrative action. Id.
9 Here, the Navy expressly asked this Court to balance national defense and
10 security interests against the environmental protection afforded under the federal
11 Coastal Zone Management Act (CZMA). The Navy appealed this Court’s August
12 7, 2007 preliminary injunction to the Ninth Circuit Court of Appeals on grounds
13 that this Court gave too little weight to the public interests in having a well trained
14 Navy and in national security. Indeed, the Navy obtained a stay of the preliminary
15 injunction on grounds that this Court should have considered those national
16 security interests in the balance. Natural Resources Defense Council v. Winter,
17 502 F. 3d 859 (9th Cir. 2007). The Ninth Circuit agreed in part with the Navy and
18 remanded this matter back for this Court to consider mitigation measures to allow
19 the Navy to perform the training exercises. The Ninth Circuit, however, rejected
20 the Navy’s contention that national security concerns rendered the issuance of any
21 injunction inappropriate. Natural Resources Defense Council v. Winter, 508 F.3d
22 885, (9th Cir. 2007). The parties briefed the question of appropriate mitigation
23 measures. This Court weighed the public interest, including the harm to the Navy
24 and national security interests, in considering mitigation measures; this Court then
25 issued a preliminary injunction with mitigation measures to allow the Navy to
26 undertake its training. (Navy’s Ex., Tab 6.) The Court subsequently modified the
27 injunction to correct clerical errors and omissions. (Navy’s Ex., Tabs 4-5.)
28 ///

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1 Having expressly asked this Court to balance national defense and security
2 interests against environmental protection and having received a ruling with which
3 it disagreed, the Navy then chose to ask the President to exempt the Navy’s
4 exercises from the CZMA on grounds of national security. The Navy and the
5 National Oceanic and Atmospheric Administration have refused to provide the
6 Commission a copy of the letter written to the President by the Secretary of
7 Commerce requesting the exemption, claiming executive privilege. Hence, the
8 Commission can only rely on what is stated in the President’s January 15, 2008
9 Presidential Exemption. The President stated the “exemption will enable the Navy
10 to train effectively and to certify carrier and expeditionary strike groups for
11 deployment in support of world-wide operational and combat activities, which are
12 essential to national security.” (Navy’s Ex., Tab 18.) Under these facts and
13 circumstances, it appears the President simply disagreed with this Court’s
14 determination that the modified preliminary injunction would protect national
15 security interests while also minimizing harm to marine mammals. (Navy’s Ex.,
16 Tab 18.) In issuing the exemption, the President effectively overruled the judicial
17 acts and opinion of this Court, rendering this Court’s decision a mere advisory
18 opinion. This violates the doctrine of separation of powers and is impermissible
19 under our Constitution.
20 The CZMA requires that the Navy determine whether its activity is consistent
21 with California’s management program to the maximum extent practicable. 16
22 U.S.C. § 1456 (c)(1)(A). The CZMA excuses full compliance if and only if full
23 consistency is prohibited by existing law applicable to the Navy. 15 C.F.R. §
24 930.32 (a)(1). After an order of the Court that the Navy’s activity is not in
25 compliance to the maximum extent practicable and certification by the Secretary of
26 Commerce that mediation is not likely to result in such compliance, the CZMA
27 states that the President may, upon written request from the Secretary, exempt from
28 compliance those elements of the Navy’s activity that are inconsistent with

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1 California’s management program if the President determines that the activity is in

1/
2 the paramount interest of the United States. 16 U.S.C. § 1456 (c)(1)(B). The
3 CZMA does not authorize the federal government to refuse to disclose the reasons
4 for such an exemption. In order for the CZMA’s statutory scheme to be consistent
5 with the constitutional doctrine of separation of powers, the grounds for the court
6 order cannot be the same grounds upon which the President grants the exemption.
7 If the grounds are the same, as they appear to be here, the President’s action
8 reviews and overturns an order of an Article III court rendering the court order a
9 mere advisory opinion, a result which cannot be countenanced under our
10 Constitution. The only remedy is to appeal the merits of this Court’s order to a
11 superior tribunal, here the Ninth Circuit Court of Appeals.
12 This Court should decline to stay or vacate the preliminary injunction.
13
Dated: January 22, 2008
14
Respectfully submitted,
15
16 EDMUND G. BROWN JR.
Attorney General of the State of California
17
J. MATTHEW RODRIQUEZ
18 Senior Assistant Attorney General
19
20 /s/ Jamee Jordan Patterson
JAMEE JORDAN PATTERSON
21
Supervising Deputy Attorney General
22 Attorneys for Intervenor
23 80197922.wpd

SD2007304580
24
25
26 1. There is a significant question about the constitutionality of 16 U.S.C. §
1456 (c)(1)(B) given that Congress has authorized the President to act after a final
27 order of an Article III judge. However, it is unnecessary to decide the facial validity
28 of the section given the facts and circumstances here which demonstrate that, as
applied here, the application of the section is unconstitutional.

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1 DECLARATION OF SERVICE BY U.S. MAIL

2 Case Name: NRDC v. Winter (on remand)

U.S.D.C. for the Central District of California, Western Division
3

4 Case No.: SACV 07-0335 FMC (FMOx)

5 I declare:

6 I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
7 older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
8 States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
9 Postal Service that same day in the ordinary course of business.

10 On January 22, 2008, I served the attached

11 INTERVENOR CALIFORNIA COASTAL COMMISSION’S

OPPOSITION TO DEFENDANTS’ EX PARTE MOTIONS FOR
12 PARTIAL STAY AND VACATUR

13 by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,
in the internal mail collection system at the Office of the Attorney General at 110 West A Street,
14 Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows:

15 Alan J Heinrich Guillermo Montero

Irell & Manella US Department of Justice
16 1800 Avenue of the Stars, Ste 900 Environment and Natural Resources Division
Los Angeles, CA 90067-4276 P O Box 663
17 Washington, DC 20044-0663
Attorney for Plaintiffs:
18 National Resource Defense Council, Inc. Attorney for Defendants

19 Andrew Elsas Wetzler

Natural Resources Defense Council, Inc.
20 1314 2nd St
Santa Monica, CA 90401
21
Attorney for Plaintiffs NRDC, et al.,
22

23 I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on January 22, 2008, at San Diego,
24 California.

25
JAMEE JORDAN PATTERSON /s/ Jamee Jordan Patterson
26
Declarant Signature
27
80196242.wpd
28