Memo Opposing Stay Pending Appeal

Case 8:07-cv-00335-FMC-FMO Document 107 Filed 01/11/2008 Page 1 of 24
1 Richard B. Kendall (State Bar No. 90072)

Gregory A. Payer (State Bar No. 232303)
2 Josh B. Gordon (State Bar No. 244818)
IRELL & MANELLA LLP
3 1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
4 Telephone: (310)277-1010
Facsimile: (310)203-7199
5 Email: gfayer@irell.com
6 Attorneys for Plaintiff
Natural Resources Defense Council, Inc.
7 Joel R. Reynolds (State Bar No. 85276)
Cara A. Horowitz (State Bar No. 220701)
8 NATURAL RESOURCES DEFENSE COUNCIL, INC.
1314 Second Street
9 Santa Monica, CA 90401
Telephone: (310)434-2300
10 Facsimile: (310)434-2399
11 Email: chorowitz@nrdc.org
Attorneys for Plaintiffs
12 Natural Resources Defense Council, Inc.;
International Fund for Animal Welfare;
13 Cetacean Society International;
14 League For Coastal Protection;
Ocean Futures Society; and Jean-Michel Cousteau
15
UNITED STATES DISTRICT COURT
16
CENTRAL DISTRICT OF CALIFORNIA
17
WESTERN DIVISION
18
NATURAL RESOURCES DEFENSE Case No. SACV 07-0335 FMC (FMOx)
19 COUNCIL, INC. et al,
20 Plaintiffs, PLAINTIFFS' MEMORANDUM OF
POINTS AND AUTHORITIES IN
21 v. OPPOSITION TO DEFENDANTS'
EXPARTE APPLICATION FOR
22 DONALD C. WINTER, Secretary of STAY PENDING APPEAL
the Navy, et al.,
23
Defendants. Judge: Hon. Florence-Marie Cooper
24 Ctrm: 750
25
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IRELL & MANELLA LLP 1803438 OPPOSITION TO DEFENDANTS' EXPARTE APP.
A Registered Limited Liability FOR STAY PENDING APPEAL
Law Partnership Including
Professional Corporations -Redacted-
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION 1
4 II. DEFENDANTS ARE NOT ENTITLED TO A STAY OF THE
5 COURT'S MITIGATION ORDER 4
6 A. Legal Standards 4
7 B. The Navy Is Not Likely to Prevail on the Merits of Its

Appeal 5
8 1. The Court Correctly Held That Plaintiffs Are Likely to
9 Prevail on the Merits of Their NEPA and CZMA Claims 5
10 2. The Court Correctly Determined that Plaintiffs Have

Shown a Possibility of Irreparable Injury Absent
11 Injunctive Relief. 5
12 3. The Mitigation that the Court Ordered Is Both Practicable

and Significantly Protective of the Marine Environment 6
13 a. The Court's Determination that the Measures
14 Set Forth in the Mitigation Order Are Both
Practicable and Protective of the Marine
15 Environment Is Not Clearly Erroneous 7
16 b. The Balance of the Harms and Public Interest

Favor Imposition of the Mitigation Measures
17 that the Court Has Ordered 14
18 C. Traditional Deference to the Executive Branch Regarding

Matters of National Security Cannot Justify a Stay 15
19 D. The Equities Do Not Favor Issuance of a Stay 17
20
III. CONCLUSION 20
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Professional Corporations
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1 TABLE OF AUTHORITIES
2 Pagefs)
3 Cases
4 Am. Bioscience v. Thompson,
243 F.3d 579 (D.C.Cir. 2001) 10
5
Arizona Cattle Growers'Ass'n v. U.S. Fish and Wildlife, Bureau of
6 Land Management,
273 F.3d 1229 (9th Cir. 2001) 5
7
Asarco Inc. v. EPA,
8 616 F.2d 1153 (9th Cir. 1980) 10
9 As hero ft v. ACLU,
542 U.S. 656 (2004) 4
10
Earth Island Institute v. U.S. Forest Service,
11 442 F.3d 1147 (9th Cir. Mar. 24, 2006) 4, 14
12 Fund for Animals v. Clark,
27 F.Supp.2d 8 (D.D.C. 1998) 14
13
Gilligan v. Morgan,
14 413 U.S. 1(1973) 16
15 GWENAlliance v. Aldridge,
855 F.2d 1380 (9th Cir. 1988) 16
16
Hilton v. Braunskill,
17 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) 4
18 Makau v. Rumsfeld,
163 F.Supp.id 1202 (D. Haw. 2001) 14
19
Minidoka Irrigation Dist. V. Dep't of Interior of U.S.,
20 406 F.3d 567 (9th Cir. 2005) 5
21 Nat 'I Audubon Soc V v. Dep 't ol
422 F.3d 174 (4th Cir. 2005) I. 16
22
Nat 7 Wildlife Fed'n v. Nat 'I Marine Fisheries Serv.,
23 422 F.3d 782 (9th Cir. 2005) 3
24 Natural Resources Defense Council, Inc. v. Winter,
508 F.3d 885 (9th Cir. 2007) passim
25
NLRB v. Brown,
26 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) 5
27 NRDC v. Evans,
279 F.Supp.2d 1129 (N.D. Cal. 2003) 14, 15
28
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1 Pagefs)
2
3 NRDCv. Navy,
857 F.Supp. 734 (C.D. Cal. 1994) 15,19
4
San Luis Obispo Mothers for Peace v. Nuclear Regulatory Com 'n,
5 449 F.3d 1016 (9th Cir. 2006) 3, 15, 16, 17
6 Seattle Audubon Soc. v. Evans,
111 F.Supp. 1081 (W.D. Wash. 1991) 14
7
Sierra Club v. Peterson,
8 185F.3d349(5thCir. 1999) 10
9 The Lands Council v. Powell,
395 F.3d 1019 (9th Cir. 2005) 10
10
Rules
11
Fed. R. Civ. P. 62 4
12
Regulations
13
71 Fed. Reg. 38,718-19 12
14
71 Fed. Reg. 38720 12
15
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1 I. INTRODUCTION
2 Defendants' Ex Parte Application requesting that the Court stay its January 3
3 Order Issuing Preliminary Injunction ("January 3 Order") as subsequently modified
4 by the Court's January 10 Modified Order Issuing Preliminary Injunction ("January
5 10 Order") (collectively, "Mitigation Order") should be denied. In issuing its initial
6 preliminary injunction of the SOCAL exercises on August 6, 2007 ("August 6
7 Order"), the Court concluded that Plaintiffs are likely to prevail on the merits of
8 their claims that Defendants have violated the National Environmental Policy Act
9 ("NEPA") and the Coastal Zone Management Act ("CZMA"), that a possibility of
10 irreparable harm exists in the absence of an injunction, that the balance of the harms
11 favors an injunction, and that the public interest is served by its issuance. On
12 appeal, the Ninth Circuit affirmed each of these conclusions, but stated that "having
13 considered the effect that narrowly tailored mitigation conditions might have on the
14 parties' interests, we conclude that such an injunction would be appropriate."
15 Natural Resources Defense Council, Inc. v. Winter, 508 F.3d 885, 887 (9th Cir.
16 2007). The Court of Appeals thus remanded for this Court to issue a tailored
17 injunction, ordering specific mitigation measures for the protection of the marine
18 environment that would permit the Navy to carry out its training activities subject to
19 those measures. This Court's Mitigation Order did just that.
20 The Navy can show no error in the Mitigation Order. First, the Ninth Circuit
21 has already affirmed this Court's determination that Plaintiffs are entitled to
22 injunctive relief in connection with the Navy's apparent violations of two federal
23 environmental statutes - each of which is independently sufficient to support the
24 issuance of injunctive relief. The Ninth Circuit affirmed this Court's determination
25 that Plaintiffs are likely to prevail on the merits of their NEPA and CZMA claims,
26 that Plaintiffs have demonstrated a possibility of irreparable harm to the
27 environment sufficient to merit injunctive relief, and that the balance of the harms
28 and the public interest favor injunctive relief. As this Court noted, these findings
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1 "were not disturbed by the Ninth Circuit's November decision." January 3 Order at
2 5. The Navy can show no possibility of prevailing on a challenge to those findings
3 and conclusions. The Ninth Circuit has already affirmed them.
4 Second, the Navy can show no error in the Court's tailoring of the injunction.
5 The mitigation measures that the Court ordered are both practicable for the Navy to
6 implement and necessary to comply with federal law. The Court's findings
7 concerning the practicability and necessity of these mitigation measures are factual
8 findings and cannot be disturbed absent a showing of clear error. As Plaintiffs
9 emphasized in their mitigation briefing, the evidence submitted to the Court clearly
10 demonstrates that these measures are practicable. Indeed, the Navy has
11 implemented most of these measures - as well as even more stringent measures -
12 during similar training exercises in the past. There is also more than ample support
13 in the record for the Court's conclusion that these measures are necessary for the
14 protection of the marine environment - as demonstrated by the overwhelming
15 evidence that the Navy's activities have a demonstrated potential for significant
16 harms to the marine environment in absence of effective protections. In sum,
17 Defendants can show no likelihood of prevailing on the merits of their appeal and
18 their application for stay should be denied.
19 In arguing that the Court's Mitigation Order is erroneous and should be
20 overturned on appeal, the Navy clearly misunderstands the standard for appellate
21 review of this Court's Order. While the Navy repeatedly claims that the Court erred
22 by failing to adopt the Navy's view of specific mitigation measures because the
23 Navy submitted evidence supporting its view of those measures, that is not the stuff
24 of which "clear error" is made. The Court's factual determinations regarding
25 appropriate mitigation measures - which were made after a careful review of the
26 voluminous evidence and briefing submitted by both parties and after a personal
27 Navy-guided tour of one of the Navy's sonar-equipped destroyers - must be upheld
28 absent a showing that there was insufficient evidence in the record to support the
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1 Court's determination that the mitigation it ordered is practicable and would

2 significantly reduce impacts on southern California marine life. Nat 7 Wildlife
3 Fed'n v. Nat'I Marine Fisheries Serv., 422 F.3d 782, 794 (9th Cir. 2005) ("NWF').
4 That is clearly not the case here. Plaintiffs submitted many hundreds of pages of
5 scientific evidence, declarations from eminent scientists, and the Navy's own
6 internal documents showing that each of the measures that the Court ordered was
7 both practicable and significantly protective of the marine environment.
8 The Navy's application fails for the additional reason that the equities do not
9 favor issuing a stay under the circumstances here. The temporary inconvenience of
10 having to implement additional protective measures during the remaining SOCAL
11 exercises - many of which the Navy has already implemented in its exercises in the
12 past while still training and certifying its troops for deployment - cannot outweigh
13 the likelihood of irreparable harm to the environment should the Navy be permitted
14 to carry out its exercises without proper safeguards in place.
15 Nor can traditional deference to the executive branch regarding national
16 security matters justify a stay. Contrary to the Navy's representations, deference is
17 not a blank check to violate the law and does not insulate the executive's actions
18 from judicial review and scrutiny. See San Luis Obispo Mothers for Peace v.
19 Nuclear Regulatory Com 'n, 449 F.3d 1016, 1035 (9th Cir. 2006) ("There is no
20 'national defense' exception to NEPA.... The Navy, just like any federal agency,
21 must carry out its NEPA mandate to the fullest extent possible and this mandate
22 includes weighing the environmental costs of the [project] even though the project
23 has serious national security implications." (internal quotation omitted)). The Court
24 carefully considered and more than adequately accommodated and deferred to the
25 Navy's national security claims in crafting its order.
26 The Navy raises no new arguments or issues on its request for stay - either on
27 the merits or on the equities - that the Court has not already carefully considered
28 and weighed in crafting its preliminary injunction. Defendants have fallen far short
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1 of meeting their burden of demonstrating that they are likely to succeed in any
2 eventual appeal of the Court's ruling. Plaintiffs respectfully request that their
3 application be denied.
4 II. DEFENDANTS ARE NOT ENTITLED TO A STAY OF THE COURT'S
5 MITIGATION ORDER
6 A. Legal Standards
7 Motions to stay an injunction pending appeal are entrusted to the sound
8 discretion of the district court. Fed. R. Civ. P. 62(c). The standard for stay requests
9 is largely the same as that for preliminary injunctive relief. See, e.g., Hilton v.
10 Braumkill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Thus,
11 Defendants are not entitled to a stay of the Court's injunction unless they can
12 demonstrate: "(1) a combination of probable success on the merits [of their appeal]
13 and the possibility of irreparable harm; or (2) that serious questions are raised and
14 the balance of hardships tips sharply in favor of granting the requested injunction."
15 Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 1158-59 (9th Cir.
16 2006).
17 On appeal, a district court's issuance of a preliminary injunction is reviewed
18 for "abuse of discretion." Ashcroft v. ACLU, 542 U.S. 656, 664 (2004). This
19 "review is limited and deferential," and "[m]ere disagreement with the district
20 court's conclusions is not sufficient reason [] to reverse the district court's decision
21 regarding a preliminary injunction." NWF, 422 F.3d at 793. A district court's
22 factual determinations, including findings of irreparable harm, will not be
23 overturned "as long as findings are plausible in light of the record viewed in its
24 entirety." Id. at 795. Even when the "facts and scientific analysis underlying the
25 district court's decision are hotly contested," an appellate court's review is "very
26 deferential." Id. at 794. "[I]n reviewing district court findings of fact for clear
27 error," the appellate court "must view the evidence in the light most favorable to the
28
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1 prevailing party." Minidoka Irrigation Dist. V. Dep 't of Interior of U.S., 406 F.3d
2 567, 572 (9th Cir. 2005) (citation omitted).1
3 B. The Navy Is Not Likely to Prevail on the Merits of Its Appeal
4 1. The Court Correctly Held That Plaintiffs Are Likely to
5 Prevail on the Merits of Their NEPA and CZMA Claims
6 The Court's August 6, 2007 Order granting Plaintiffs' motion for preliminary
7 injunction concluded that Plaintiffs were likely to prevail on the merits of their
8 NEPA and CZMA claims. Aug. 6 Order at 5; Jan. 3 Order at 4-5. The Court of
9 Appeals' November 13 Order expressly affirmed this conclusion, holding that
10 "Plaintiffs have shown a strong likelihood of success on the merits of their claims
11 under [NEPA and the CZMA]...." NRDC v. Winter, 508 F.3d at 886. This holding
12 is binding under law of the case principles and the Navy presents no colorable basis
13 for overturning it. In short, the Navy's violations of law that form the basis of the
14 injunction that the Navy here asks the Court to stay are not subject to doubt.
15 2. The Court Correctly Determined that Plaintiffs Have Shown
16 a Possibility of Irreparable Injury Absent Injunctive Relief
17 Likewise, in its initial Preliminary Injunction Order this Court found that
18 Plaintiffs had "established to a near certainty that use of MFA sonar during the
19 planned SOCAL exercises will cause irreparable harm to the environment and
20 Plaintiffs' standing declarants." Aug. 6 Order at 19; Jan. 3 Order at 12. The Court
21 of Appeals unequivocally affirmed this aspect of the Court's ruling, holding that
22 Plaintiffs "have met the necessary burden of proof having demonstrated "the
23 possibility of irreparable injury if relief is not granted." NRDCv. Winter, 508 F.3d
24
25
Plaintiffs' NEPA and CZMA claims have been brought pursuant to the
26 Administrative Procedure Act ("APA"). Under the APA, Courts may not simply
"rubber-stamp ... administrative decisions that they deem inconsistent with a
27 statutory mandate or that frustrate the congressional policy underlying a statute."
Arizona Cattle Growers' Ass 'n v. U.S. Fish and Wildlife, Bureau of Land
28 Management, 273 F.3d 1229, 1236 (9th Cir. 2001) (quoting NLRB v. Brown, 380
U.S. 278, 291-92, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965)).
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1 at 886. As with the Court's merits determination, this holding is binding under law
2 of the case principles and the Navy presents no colorable basis for overturning it.
3 3. The Mitigation that the Court Ordered Is Both Practicable
4 and Significantly Protective of the Marine Environment
5 This Court's August 6 PI Order also found that "the balance of hardships tips
6 in favor of granting an injunction" and that "the harm to the environment, Plaintiffs,
7 and public interest outweighs the harm that Defendants would incur." Aug. 6 Order
8 at 19; Jan. 3 Order at 12. Again, the Court of Appeals affirmed this aspect of the
9 Court's ruling:
10 Plaintiffs have also shown that the balance of hardships tips in their favor if a
properly tailored injunction is issued providing that the Navy's operations
11 may proceed if conducted under circumstances that provide satisfactory
safeguards for the protection of the environment. Moreover, the public
12 interest would be advanced by an injunction that required adequate mitigation
measures.
13
NRDC v. Winter, 508 F.3d at 886. The Navy nevertheless argues (apparently) that a
14
stay should issue because it asserts that the Court's determination that the mitigation
15
measures included in the Mitigation Order are practicable and needed to address the
16
Navy's violations of law was clearly erroneous, thus tipping the balance of
17
hardships and the public interest against the issuance of an injunction that includes
18
such measures. For the reasons stated below, this argument fails.
19
Since the Ninth Circuit has already determined that the public interest and the
20
balance of harms favor the issuance of "an injunction that require[s] adequate
21
mitigation measures," id., the sole issue that remains for the Court of Appeals to
22
address on the Navy's appeal is whether this Court abused its discretion in ordering
23
the Navy to adopt the mitigation measures set forth in the Mitigation Order. After
24
reviewing the considerable evidence submitted by the parties and personally taking
25
a Navy-guided tour of one of its sonar vessels, this Court properly determined that
26
the measures set forth in the Mitigation Order are both practicable for the Navy to
27
implement and needed to address the Navy's violations of law. Jan. 3 Order at 13.
28
Because these factual determinations were not clearly erroneous, the Navy can show
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1 no likelihood of prevailing on the merits of its appeal and, accordingly, its instant
2 request for a stay pending appeal must be denied.
3 a. The Court's Determination that the Measures Set
4 Forth in the Mitigation Order Are Both Practicable
5 and Protective of the Marine Environment Is Not
6 Clearly Erroneous
7 This Court's August 6 Order determined that the mitigation measures that the
8 Navy proposed for the SOCAL exercises were "woefully inadequate and
9 ineffectual" for preventing harm to the SOCAL marine environment and for
10 preventing the possibility of significant effects on such environment. Aug. 6 Order
11 at 17. The Ninth Circuit agreed that the SOCAL exercises, as the Navy proposed to
12 conduct them, were illegal under NEPA and the CZMA and that the Navy must
13 implement additional mitigation in order to comply with these laws. NRDC v.
14 Winter, 508 F.3d at 886-87. For the reasons set forth in the Court's Mitigation
15 Order and those set forth below, the mitigation measures that the Court has now
16 ordered the Navy to implement are needed to address the Navy's violations of
17 NEPA and the CZMA - to reduce the likelihood of significant effects on the marine
18 environment and to bring the Navy's activities closer in line with the requirements
19 of the California Coastal Act.
20 Plaintiffs have also submitted many hundreds of pages of scientific evidence,
21 declarations from eminent scientists, and the Navy's own internal documents
22 showing that each of the measures that the Court ordered was practicable for the
23 Navy to implement.
24
25 -Redacted-
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1
2 The carefully-considered measures set forth by

3 this Court clearly fulfill the aims set by the Ninth Circuit and are well-supported by
4 the record.
5 In arguing to the contrary, the Navy grossly misunderstands the applicable
6 standard for appellate review of this Court's determinations - indeed, its entire
7 application is infected with this error. The Navy repeatedly asserts that the Court
8 erred because the Navy submitted evidence supporting its position on various
9 measures and, notwithstanding this evidence, the Court failed to adopt its position
10 on each measure. Def. Br. at 8-9, 11, 12-13. But even taking the Navy's assertions
11 at face value, this is not the stuff of which "clear error" is made. The Court's
12 assessment of the evidence before it and its factual determinations regarding
13 appropriate mitigation measures cannot be overturned absent a showing that there
14 was insufficient evidence in the record to support the Court's determinations. NWF,
15 422 F.3d at 793. That is clearly not the case here. As seen below and in Plaintiffs'
16 prior briefing, and as acknowledged in the Court's January 3 Order, there is ample
17 evidence in the record demonstrating that the mitigation measures that the Court
18 adopted were both practicable for the Navy to implement and necessary for the
19 protection of marine life in southern California.
20 (1) 2200 yard shut-down zone
21 The Navy argues that a 2200 yard safety zone is impracticable because it
22 "exponentially increases the number of times" that sonar would have to shut down.
23 Def. Br. at 7. Specifically, it claims twice - without any analysis or citation to
24 evidence - that the measure would result in a "five-fold increase" in required shut-
25 downs. Def. Br. at 2, 8. That assertion is both misleading and contradicted by the
26 Navy's own past practice. The Navy's report for the first three southern California
27 exercises indicates that a 2220 yard zone would require shut-down in only six
28 additional instances, out of a total of 16 in which the Navy already took action. Ex.
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1 14 at 10-11, A-3 to A-l 1 (citing 6 instances between 200 and 2200 yards where
2 Navy powered down but did not secure sonar).2 Moreover, as Plaintiffs discussed at
3 length in their opening brief, the requirement's marginal effect on training hours is
4 extremely small. Op. Br. at 20 n.9; Ex. 14 at 10-11 (indicating that six events would
5 affect under 1% of all 317 hours of sonar use) -Redacted- Ex. 19 at 2
6 (indicating this would be significant overestimate given ships' average rate of
7 speed). Indeed, during the first three SOCAL exercises, the Navy observed a de
8 facto 4,000 yard safety zone, sometimes shutting down when marine mammals were
9 sited at 4000 yards, and the Navy has never contended that its strike groups were not
10 properly trained or could not be certified during these exercises. Op. Br. at 19; Ex.
11 14 at 10-11, A-3 to A-l 1. For these and other reasons, the Court's finding that the
12 requirement would present a minimal imposition on the Navy is hardly erroneous.
13 Jan. 3 Order at 15 j f
i -Redacted-
14
15 The Navy further avers that the Court "did not appropriately consider" its
16 claim that a 200 meter shut-down zone sufficiently reduces harm to marine
17 mammals. Def. Br. at 8. In fact, the Court carefully considered the evidence before
18 it, and concluded that the Navy's 1000 yard/ 500 yard/ 200 yard scheme "is grossly
19 inadequate to protect marine mammals from debilitating levels of sonar exposure."
20 Jan. 3 Order at 8, 15 (citing Exs. 5, 6; Bain Supp. Decl. flf 7, 12-13; Parsons Decl. If
21 5, and other evidence). As the record shows, a larger safety zone is needed given
22 the vast area in which significant impacts on all species are expected to occur, the
23 record of sonar-related injuries occurring at considerable distances from the sonar
24 array, and the difficulty of determining the bearing of animals even when they are
25 sighted. Id.- -Redacted- Ex. 34 at 120; Ex. 35 f 9;
26
27 All citations to "Ex." refer to the exhibits to the declaration of Josh B.
Gordon filed under seal in support of Plaintiffs' Opening Brief Regarding
28 Appropriate Mitigation Measures for the Remaining SOCAL Exercises on
December 14, 2007.
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1 Parsons Decl. 19. The Court's findings were well considered and amply
2 supported by the evidence.3
3 Additionally, the Navy claims that, because dipping sonar and sonobuoys
4 transmit at lower decibel levels and with shorter pulses than ships and submarines, it
5 should not maintain a 2200-yard shut-down zone around them. Def. Br. at 10. The
6 evidence before the Court, however, demonstrates that mid-frequency sound with
7 even shorter pulses and far lower source levels cause some species to react strongly
8 from kilometers away. Horowitz Decl. Ex. 28 (harbor porpoises); Horowitz Decl.
9 Ex. 29 at 10 (NMFS, indicating strong reactions in harbor porpoises); Horowitz
10 Decl. Ex. 78 (orcas); Bain Decl. f 6 (orcas). The Court was correct in requiring that
11 a similar safety zone be maintained for dipping sonar and sonobuoys.
12 (2) Catalina Basin
13 According to the Navy, the Court erred in restricting sonar from Catalina
14 Basin because it purportedly characterized that area as a "chokepoint" (Def. Br. at
15 13), which the Navy defined, in its opening brief, as a "strategic strait or canal."
16 Jan. 3 Order at 17 (citing Def. Br. at 11). But the Court did no such thing: on the
17 contrary, it made a reasonable factual finding that - regardless of the terminology
18 used by the Navy - the Catalina Basin affords only limited ingress and egress and
19 includes a high density of marine mammals. Jan. 3 Order at 17; see also Baird
20 Supp. Decl. f 8; Ex. 13 at 2-7 (Navy bathymetric map, indicating that area lies
3
21 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 the
22 proposition that Plaintiffs' declarations cannot be used to challenge the Navy's
safety zone mitigation because they lie outside the administrative record. Def. Br. at
23 9. Unlike those cases, however, the Court here is considering this evidence within
the context of equitable relief, an established exception to the limit on extra-record
24 material. Even if it were otherwise, such material would be admissible as
"necessary to determine 'whether the agency has considered all relevant factors and
25 has explained its decision'" or as "necessary to explain technical terms or complex
subject matters" - all the more so given the Navy's failure to produce an
26 administrative record for the challenged actions. Sierra Club v. Peterson. 185 F.3d
349, 372 (5th Cir. 1999); The Lands Council v. Powell, 395 F.3d 1019, 1^30 (9th
27 Cir. 2005). Moreover, the Navy's one-sided approach to admissibility cannot be
squared with its almost exclusive reliance on a single declarant, RADM Bird,
28 throughout its briefing. Finally, the Court explicitly relies both on published studies
and on declarations for its finding at issue here. Jan. 3 Ord. at 15.
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1 between two islands and two long escarpments);;

2
3
4
5 -Redacted-
6
7
8 There is no
9 error in the Court's findings here.
10 The Navy also argues that the Court did not give "proper consideration" to the
11 Navy's general statement about its use of this area. In fact, as set forth in Plaintiffs'
12 opening brief, the record contains extensive and unrebutted evidence demonstrating
13 the practicability of the Court's measure:;
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17 -Redacted-
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22 The evidence before the Court amply shows the effectiveness of
23 geogiapmc avoidance, the biological importance of the area, and the practicability
24 of the measure.
25 (3) Surface-ducting conditions
26 The Navy argues that the Court erred in prescribing a 6-decibel power down
27 during surface-ducting conditions because the requirement would provide only a
28 negligible benefit for marine mammals. Def. Br. at 11. This assertion is meritless.
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1 In support of its position, the Navy merely restates its baseless claim that surface
2 ducting "only poses a threat" in combination with other factors, such as steep
3 bathymetry or "multiple sources of sonar operating simultaneously." Def. Br. at 11.
4 Yet, as Plaintiffs have observed (Op. Br. at 10), such a claim has been rejected even
5 by NMFS, which has made clear that surface ducting elevates the risk of serious
6 harm independent of other factors. 71 Fed. Reg. 38,718-19 ("the presence of
7 surface ducts ... added to the operation of mid-frequency sonar in the presence of
8 cetaceans (especially beaked whales and, potentially, deep divers) may increase
9 the probability of producing a sound field with the potential to cause cetaceans to
10 strand, and therefore, necessitates caution"); see also 71 Fed. Reg. 38720;
11
-Redacted- .
12 ; As Plaintiffs have noted, this concern is
13 particularly pressing here where the Navy plans to use sonar in areas rich in deep-
14 diving species, including as many as seven beaked whale species such as Perrin's
15 beaked whale, whose entire known range exists between Monterey and San
16 Diego. Ex. 12 at 578-79; Baird Decl. ^ 12.
17 Similarly, the Navy's suggestion that the Court did not properly consider the
18 Navy's training needs (Def. Br. at 11) has no merit. During its briefing (Def. Op.
19 Br. at 27), the Navy argued that powering down during surface-ducting conditions
20 was impractical because they are difficult to track, a fact that the Court considered
21 (Jan. 3 Order at 17).;
22 -Redacted-
23
24 Indeed, the Navy itself states that "[i]n order to become proficient in MFA sonar
25 use, Sailors must learn to identify when surface ducting conditions exist." Def. Op.
26 Br. at 27. Furthermore, the Navy has employed power downs under certain
27 conditions in the past. Ex. 15 at 2. The Court clarified the surface-ducting measure
28 in its Modified Order, inserting the qualifier "significant" to ensure that the balance
IRELL&MANELLALLP
1 between training and environmental protection was properly calibrated. Jan. 10

2 Order at 4. Its prescription of the requirement is supported by the record and is not
3 erroneous.
4 (4) Aerial monitoring
5 The Court has ordered the Navy to provide dedicated aerial monitoring for
6 one hour before the start of sonar use and additional monitoring by participating
7 aircraft for the duration of sonar exercises. Jan. 10 Order at 3. This clarification of
8 the Court's intent plainly addresses the Navy's expressed concern that the injunction
9 would require dedicated and continuous aerial monitoring over several weeks. Jan.
10 10 Order at 3 n.2. The Navy has not challenged the efficacy of pre-exercise aerial
11 monitoring by dedicated aircraft. To the contrary, such monitoring was required by
12 the Navy and NMFS for certain exercises during RIMPAC 2006 and the tenure of
13 the 2006 NDE. 72 Fed. Reg. 38732 (measure 9); Ex. 15 at 3; see also Horowitz
14 Decl. Ex. 44 at 248 (noting the greater effectiveness of dedicated observers). As the
15 Court has repeatedly noted based on a thorough review of the evidence, the Navy's
16 current methods of detection are poor at detecting many species of marine
17 mammals. Jan. 3 Order at 8, Aug. 6 Order at 12 (citing declarations and published
18 papers); see also Horowitz Decl. Ex. 43 at 3. The Court properly found that the
19 requirement to conduct pre-exercise monitoring is both practicable and needed.
20 In sum, the carefully-considered measures set forth by this Court fulfill the
21 aims set by the Ninth Circuit and are well-supported by the record. The evidence
22 more than amply supports the Court's conclusion that these measures are both
23 practicable for the Navy to implement and effective in preventing unnecessary harm
24 to marine life.
25
26
27
28
IRELL&MANELLALLP
1 b. The Balance of the Harms and Public Interest Favor

2 Imposition of the Mitigation Measures that the Court
3 Has Ordered
4 As the Ninth Circuit has acknowledged, "[t]he preservation of our
5 environment, as required by NEPA and [other environmental statutes], is clearly in
6 the public interest." Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147,
7 1177 (9th Cir. 2006). Thus, for example, inNRDC v. Evans, 279 F.Supp.2d 1129,
8 1190-91 (N.D. Cal. 2003), the court acknowledged that the public has important
9 interests both in "military preparedness" and in the "survival and flourishing of
10 marine mammals and endangered species, as well as a healthy marine environment."
11 Id. at 1190-91. Balancing these interests, the court concluded that the public interest
12 favored an injunction "carefully tailored to reduce the risk to marine mammals and
13 endangered species" against the Navy's worldwide use of low-frequency sonar. Id.;
14 see alsoMakau v. Rumsfeld, 163 F.Supp.2d 1202, 1221-22 (D. Haw. 2001) (granting
15 preliminary injunction under NEPA holding that public interest favored protection of
16 species threatened by proposed military action despite countervailing claims of
17 national security).
18 In addition, "the interest in having government officials act in accordance
19 with law" in environmental cases "invokes a public interest of the highest order."
20 Seattle Audubon Soc. v. Evans, 111 F.Supp. 1081, 1096 (W.D. Wash. 1991)
21 (granting preliminary injunction), aff d, 952 F.2d 297 (9th Cir. 1991); see also Fund
22 for Animals v. Clark, 27 F.Supp.2d 8, 15 (D.D.C. 1998) (granting preliminary
23 injunction under NEPA, acknowledging public interest in "the meticulous
24 compliance with the law by public officials").
25 In this case, the Ninth Circuit has squarely held that "the public interest would
26 be advanced by an injunction that required adequate mitigation measures." NRDC
27 v. Winter, 508 F.3d at 886. Moreover, "the balance of hardships tips in [plaintiffs']
28 favor if a properly tailored injunction is issued providing that the Navy's operations
IRELL&MANELLALLP
Law Partnership including
1 may proceed if conducted under circumstances that provide satisfactory safeguards

2 for the protection of the environment." Id. For the reasons stated above, the
3 mitigations measures ordered by this Court are "properly tailored" in accordance
4 with the Ninth Circuit's instructions. They are practicable for the Navy to
5 implement and are needed to address the Navy's violations of law and to prevent
6 needless harm to the marine environment. As a result, the Navy cannot prevail on
7 any contention that the Mitigation Order tips the balance of the public interest or the
8 balance of the harms against injunctive relief.
9 C. Traditional Deference to the Executive Branch Regarding Matters
10 of National Security Cannot Justify a Stay
11 The traditional deference accorded to the executive branch regarding matters
12 of national security cannot and was never intended to insulate the executive's
13 actions from judicial review and cannot excuse the Navy from employing
14 reasonable and appropriate mitigation measures during its training exercises. See
15 San Luis Obispo, 449 F.3d at 1035 ("There is no 'national defense' exception to
16 NEPA.... The Navy, just like any federal agency, must carry out its NEPA mandate
17 to the fullest extent possible and this mandate includes weighing the environmental
18 costs of the [project] even though the project has serious national security
19 implications." (internal quotation omitted)); see also Ex. 16 (enjoining Navy's use
20 of MFA sonar during PJMPAC exercises); NRDC v. Evans, 279 F.Supp.2d 1129
21 (N.D. Cal. 2003) (enjoining Navy's worldwide use of low-frequency sonar); NRDC
22 v. Navy, 857 F.Supp. 734 (C.D. Cal. 1994) (enjoining Navy's use of underwater
23 explosives).
24 The Navy has raised national security concerns repeatedly throughout this
25 litigation: it has articulated such concerns in its briefing, and it has submitted
26 voluminous evidence and numerous classified declarations (including, improperly, a
27 new one submitted with this application) in support of its contentions. Plaintiffs, on
28 the other hand, submitted evidence demonstrating that the Navy has employed most
IRELL&MANELLALLP
1 of these same measures, as well as even more stringent measures, in similar

2 exercises in the past, and that the Navy has trained, certified, and deployed its troops
3 with such measures in place.
4 The Court reviewed and carefully considered all of the evidence before it, and
5 gave more than due deference to the Navy's national security claims in crafting its
6 Order. Indeed, the Court's Mitigation Order declined to impose many of the
7 conditions recommended by Plaintiffs and by the California Coastal Commission -
8 including power-downs in low-visibility conditions and more extensive geographic
9 mitigation, despite the undisputed efficacy of such measures in preventing harm to
10 marine mammals - and instead adopted many of the Navy's proposed mitigation
11 provisions such as enhanced monitoring, which the Navy argued was easier to
12 implement than geographic exclusions.
13 But contrary to the Navy's representations, deference is not a blank check to
14 violate the law. The Ninth Circuit has repeatedly made clear that "[tjhere is no
15 'national defense' exemption to NEPA." San Luis Obispo, 449 F.3d at 1035. The
16 Navy cannot even begin to meet its burden of showing that the carefully crafted
17 Mitigation Order failed to adequately take into account and defer to the Navy's
4
18 alleged national security concerns.
19
20
The cases cited by the Navy (Br. at 14-15) do not support its broad claims.
21 Gilligan v. Morgan, 413 U.S. 1, 5, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), for
instance, expressly contradicts the Navy's position. There, in addressing a "broad
22 call on judicial power to assume continuing regulatory jurisdiction" over a segment
of the military, the Court held that "there is nothing in our Nation's history or in this
23 Court's decided cases, including our holding today, that can properly be seen as
giving any indication that actual or threatened injury by reason of unlawful activities
24 of the military would go unnoticed or unremedied. Id. at 11-12 n. 16; see also
Holmes v. Cal Army Nat'I Guard, 124 F.3d 1126, 1133 (9th Cir. 1997) (holding
25
26 guessing at agency's "subjective intent" rather than basing its decision on the
J- . .^\_4. JL / *j ^*\J ^J \ I H.J. V^AJL . ±*\J\J+S I I J.J.\_f J.VJ.iiX^ U.JLU-V V* A LJ W. JL W I, WW U.J. I, U-IS WI-LJW\_l A HJ \J--LLJ WA V *.JU vy A J.
objective evidence regarding the Navy's actions). As stated above, the military ims
27 long been required to comply with NEPA and numerous other environmental laws,
even though national security interests are involved. See, e.g., San Luis Obispo, 449
28 F.3d at 1035; No GWENAlliance v. Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988).
IRELL&MANELLALLP
A Registered Limited Liability OPPOSITION TO DEFENDANTS' EX PARTS APP.
1803438
1 D. The Equities Do Not Favor Issuance of a Stay

2 The equities do not warrant a stay under the circumstances here. As
3 discussed supra at II.B.3, this Court correctly determined (and the Ninth Circuit
4 affirmed) that the balance of harms and the public interest favor injunctive relief,
5 and the Court worked diligently to strike an appropriate balance between species
6 protection and naval readiness. The result is a carefully tailored injunction that
7 allows the Navy to go forward with its SOCAL exercises while putting safeguards
8 in place to help minimize harm to marine life. The temporary burden of having to
9 implement additional protective measures during the remaining SOCAL exercises -
10 many of which the Navy has implemented in past exercises while still training and
11 certifying its troops for deployment - cannot outweigh the "near certainty" of
12 irreparable harm to the environment should the Navy be permitted to carry out its
13 exercises without proper protections. Aug. 6 Order at 19; Jan. 3 Order at 12; San
14 Luis Obispo, 449 F.3d at 1035.
15 The Navy makes essentially four arguments why the equities mandate a stay,
16 none of which has merit. First, the Navy emphasizes the importance of MFA sonar
17 training to national security and states that this Court has effectively enjoined the
18 exercises through overbroad measures, creating "the same practical effect as a
19 blanket injunction." Navy Br. at 16. But nearly every measure imposed by the
20 Court is one that the Navy has implemented before, often on its own accord. It has
21 employed a 12 nm coastal buffer zone; -Redacted-
22 aerial monitoring; special provisions for strong surface ducting conditions; and even
23 safety zones greater than the one required here. See Ex. 15 at 1-2 (coastal zone and
24 surface ducting provisions) -Redacted-
25 j 72 Fed. Reg. 38732 and Ex. 15 at 3
26 (aerial monitoring); Op. Br. at 19, Ex. 28 at 1-3, Ex. 29 at 27, and Ex. 14 at 10-11,
27 A-3 to A-l 1 (safety zone enlargements). Each of the specific measures required by
28 the Court is practicable and will reduce harm, as discussed supra at II.B.3.a.
IRELL&MANELLALLP
1 Though the employment of these measures may require adjustments to the Navy's
2 procedures, it strains credulity to believe that the Navy is incapable of training its
3 soldiers while taking these steps to protect whales and other marine life.
4 Second, the Navy argues that this Court did not give due consideration to the
5 public's interest in national defense. Navy Br. at 17. But the Ninth Circuit squarely
6 held in this case that "the public interest would be advanced by an injunction that
7 required adequate mitigation measures." NRDC v. Winter, 508 F.3d at 886. As
8 discussed above, this Court reviewed the considerable evidence submitted by the
9 parties, personally toured one of the Navy's sonar vessels, and made factual findings
10 that the public's interest in military readiness would not be unduly harmed by the
11 measures set forth in the Mitigation Order. Jan 3 Order at 12-13. Nothing more was
12 required.
13 Third, the Navy points to two statutes not at issue in the Court's ruling, the
14 MMPA and ESA, and argues in essence that the Navy's compliance with those
15 statutes weighs against an injunction for its violations of NEPA and the CZMA.
16 Navy Br. at 19-20. Putting aside the fact that the Navy "complied" with the MMPA
17 only via the issuance of a National Defense Exemption excusing it from the
18 substantive protections of the Act, and that the merits of Plaintiffs' allegations of
19 ESA violations are still to be judged, the Navy cites no precedent for the proposition
20 that violations of environmental laws can be remedied only if they are transgressed
21 in bulk. Indeed, as stated above, the Ninth Circuit has made clear that there is no
22 national defense exemption to NEPA.
23 Last, the Navy reprises its argument that the harm to Plaintiffs from the
24 SOCAL exercise as planned would be "minimal." Navy Br. at 21. But this Court's
25 repeated findings to the contrary were unequivocally affirmed by the Court of
26 Appeals, which held that Plaintiffs have demonstrated "the possibility of irreparable
27 injury if relief is not granted" and held that injunctive relief of precisely the sort
28
IRELL&MANELLALLP
1 awarded is warranted. NRDC v. Winter, 508 F.3d at 886. Harm to Plaintiffs thus
2 weighs heavily against a stay.
3 The Navy's appeal to equities is particularly weak given the many
4 opportunities the Navy has had- and spurned - to bring its training exercises into
5 compliance with the law. NRDC has been advocating for enhanced mitigation of
6 the impacts of MFA sonar use from the outset in every forum available to it, and
7 the CCC itself warned the Navy a year ago that its SOCAL exercises would be
8 illegal absent meaningful additional mitigation. This Court's August 6
9 Preliminary Injunction Order, together with the Ninth Circuit's call for "an
10 injunction that require[s] adequate mitigation measures," NRDC v. Winter, 508 F.3d
11 at 886, put the Navy firmly on notice that it could not continue with business-as-
12 usual in these exercises. As one court observed in enjoining a naval weapons
13 testing program, any hardship that the Navy might suffer "is likely the direct
14 result of the failure to comply with [federal environmental laws]" and its "refusal
15 or inability to recognize [that failure] at an earlier date." NRDC v. Navy, 857
16 F.Supp. at 741 n.13. That the Navy failed to heed these warnings and undertake
17 the sort of planning that would have avoided the hardship it now suffers does not
18 justify a stay.
19 The measures ordered by this Court strike an educated, evidence-based
20 balance between protecting marine life and allowing the Navy to go forward with
21 its training and certification of troops, thus minimizing harm to the public
22 interest. Any stay granted by this Court would have the practical effect of
23 allowing many or all of the challenged exercises to go forward unmitigated,
5
24 leaving Plaintiffs without a remedy despite the Navy's clear violations of law.
25 The injunction should therefore remain in place pending appeal.
26
27 proposedEven if this Court were inclined to grant a stay pending appeal, the Navy's
order is unjustifiably broad in that it calls for a stay of the order "pending
28 the conclusion of any appeal. As written, this is tantamount to a vacation of the
injunction, since the Navy would be under no obligation to prosecute an appeal.
IRELL&MANELLALLP
A Registered Limited Liability OPPOSITION TO DEFENDANTS' EX PARTS APP.
1803438
1 m. CONCLUSION
. 2 For the reasons stated above, Plaintiffs respectfully request that the Court
3 deny Defendants' Ex Porte Application to stay the Court's January 3 Order Issuing
4 Preliminary Injunction, as subsequently modified by the Court's January 10 Order
5 Issuing Modified Preliminary Injunction.
6
7 Dated: January 11, 2008 IRELL & MANELLA LLP
Richard B.Kendall
8 Gregory A. Payer
Josh B. Gordc
9
10
11
Dated: January 11, 2008 NATURAL RESOURCES DEFI
12 COUNCIL, INC.
Joel R. Reynolds
13 Andrew E. Wetzler
14
15
Cara A. Hoi
By:.
JoeOKTReynolds /
gU-^XOt
'>,
16 ATTORNEYS FOR PLAINTIFFS
17
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IRELL & MANELLA LLP
Professional Coiporattons
1803438
-20- OPPOSITION TO DEFENDANTS' EX PARTS APP.
FOR STAY PENDING APPEAL

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

1 Richard B. Kendall (State Bar No. 90072)

7 B. The Navy Is Not Likely to Prevail on the Merits of Its

10 2. The Court Correctly Determined that Plaintiffs Have

12 3. The Mitigation that the Court Ordered Is Both Practicable

16 b. The Balance of the Harms and Public Interest

18 C. Traditional Deference to the Executive Branch Regarding

1 Court's determination that the mitigation it ordered is practicable and would

2 The carefully-considered measures set forth by

1 between two islands and two long escarpments);;

1 between training and environmental protection was properly calibrated. Jan. 10

1 b. The Balance of the Harms and Public Interest Favor

1 may proceed if conducted under circumstances that provide satisfactory safeguards

1 of these same measures, as well as even more stringent measures, in similar

1 D. The Equities Do Not Favor Issuance of a Stay

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