United States v. 2007-11-13 | 07-56157 | Natural Resources Defense Council, Inc. Vwinter |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NATURAL RESOURCES DEFENSE
COUNCIL, INC.; THE INTERNATIONAL
FUND FOR ANIMAL WELFARE;
CETACEAN SOCIETY INTERNATIONAL;
LEAGUE FOR COASTAL PROTECTION;
OCEAN FUTURES SOCIETY; JEAN-
MICHEL COUSTEAU,
Plaintiffs-Appellees,
No. 07-56157v.
D.C. No.DONALD C. WINTER, Secretary of CV-07-00335-the Navy; UNITED STATES FMC/FMODEPARTMENT OF THE NAVY; CARLOS  Central DistrictM. GUTIERREZ, Secretary of the of California,Department of Commerce; Santa AnaNATIONAL MARINE FISHERIES
SERVICES; WILLIAM HOGARTH, ORDER
Assistant Administrator for
Fisheries of the National
Oceanographic and Atmospheric
Administration; CONRAD C
LAUTENBACHER, JR., Administrator
of the National Oceanographic and
Atmospheric Administration,
Defendants-Appellants. 
Filed November 13, 2007
Before: Betty B. Fletcher, Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
15035

-- 1 of 8 --

ORDER
This appeal concerns the Navy’s use of mid-frequency
active sonar in fourteen training exercises off the coast of
Southern California. The Navy completed three of these exer-
cises in February and March of this year. On August 7, 2007,
the district court entered a preliminary injunction prohibiting
the Navy from using mid-frequency active sonar during the
course of the eleven remaining exercises. On August 31,
2007, a motions panel of this court granted the Navy’s motion
to stay the preliminary injunction pending appeal. At oral
argument held before this court on November 8, 2007, the
Navy reported that since the stay was entered it has conducted
one more exercise, and that an exercise currently underway
would be completed by November 22, 2007. The Navy plans
to conduct its next exercise in January 2008.
Plaintiffs have met the necessary burden of proof to dem-
onstrate that some form of preliminary injunctive relief is
appropriate. Specifically, Plaintiffs have shown a strong like-
lihood of success on the merits of their claims under the
National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4321 et seq., and the Coastal Zone Management Act
(CZMA), 16 U.S.C. § 1451 et seq., as well as the possibility
of irreparable injury if relief is not granted. 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 may proceed if conducted under circum-
stances that provide satisfactory safeguards for the protection
of the environment. Moreover, the public interest would be
advanced by an injunction that required adequate mitigation
measures.
We agree with the motions panel that the “[t]he district
court did not explain why a broad, absolute injunction against
the use of the medium frequency active sonar in these com-
plex training exercises for two years was necessary to avoid
irreparable harm to the environment.” NRDC v. Winter, ___
15036 NATURAL RESOURCES v. WINTER

-- 2 of 8 --

F.3d ___, 2007 WL 2481465, at *3 (9th Cir. Aug. 31, 2007).
Injunctive relief must be tailored to remedy the specific harm
alleged, and an overbroad preliminary injunction is an abuse
of discretion. Lamb-Weston, Inc. v. McCain Foods, Ltd., 941
F.2d 970, 974 (9th Cir. 1991).
The motions panel was faced, however, with the all-or-
nothing choice of staying the district court’s blanket injunc-
tion pending our determination of this appeal, or denying the
request for a stay entirely. The panel noted that “[w]e do not
suggest whether an injunction allowing the exercises but sub-
jecting them to mitigation measures might lead to a different
result, because no such injunction is before us.” NRDC, 2007
WL 2481465, at *4. Now that this matter has come to this
court on its merits, we are able to consider whether remanding
for a more tailored injunction would be an appropriate rem-
edy.
Having heard arguments on that question and having con-
sidered the effect that narrowly tailored mitigation conditions
might have on the parties’ interests, we conclude that such an
injunction would be appropriate. In light of the Navy’s past
use of additional mitigation measures to reduce the harmful
effects of its active sonar during its 2006 exercises in the
Pacific Rim, and of the district court’s longstanding involve-
ment with this matter and its familiarity with the effectiveness
and practicability of available mitigation measures, we vacate
the stay and remand this matter to the district court to narrow
its injunction so as to provide mitigation conditions under
which the Navy may conduct its training exercises. The dis-
trict court shall determine the appropriateness of whatever
conditions may be suggested by either party, or may advance
such conditions on its own.
So as to allow the Navy to complete the exercise that is cur-
rently in progress, the stay shall remain in effect until the end
of the current exercise, or ten days from the date of this order,
whichever is earlier. Once the stay is lifted, the preliminary
15037 NATURAL RESOURCES v. WINTER

-- 3 of 8 --

injunction entered by the district court on August 7, 2007,
shall take effect. The district court shall then conduct what-
ever hearings it deems reasonable or necessary, and enter an
appropriate preliminary injunction by January 4, 2008, the
earliest approximate date at which the Navy plans its next
exercise. If the district court fails to modify the preliminary
injunction so as to include mitigation measures by January 4,
2008, the Navy may make a motion before this panel for rein-
statement of the stay order. This panel shall retain jurisdiction
over any further motions, requests for relief, or appeals in this
matter. An opinion will follow.
The stay is VACATED as of the time provided above, and
the matter is REMANDED for the district court to enter a
modified preliminary injunction containing appropriate miti-
gating conditions.
15038 NATURAL RESOURCES v. WINTER

-- 4 of 8 --

-- 5 of 8 --

-- 6 of 8 --

-- 7 of 8 --

PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.

-- 8 of 8 --