United States v. 2008-02-29 | 08-55054 | NRDC VWINTER | precedential | opinion |

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,
CALIFORNIA COASTAL COMMISSION, No. 08-55054
Intervenor-Appellee, D.C. No.
v. CV-07-00335-FMC
Central District DONALD C. WINTER, Secretary of
of California, the Navy; UNITED STATES  Santa Ana DEPARTMENT OF THE NAVY; CARLOS
M. GUTIERREZ, Secretary of the ORDER
Department of Commerce; GRANTING
NATIONAL MARINE FISHERIES PARTIAL STAY
SERVICES; WILLIAM HOGARTH,
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 February 29, 2008
Before: Betty B. Fletcher, Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
2075

-- 1 of 8 --

ORDER
As we explain in our opinion issued concurrently with this
order, we affirm the district court’s January 3, 2008 prelimi-
nary injunction order, as modified on January 10, 2008. The
preliminary injunction permits the Navy to complete the
remaining eight of fourteen scheduled COMPTUEX and
JTFEX exercises in the waters off the coast of southern Cali-
fornia on the condition that it employ a number of measures
designed to mitigate the harm to marine mammals that the
district court found would, “to a near certainty,” result from
the Navy’s use of mid-frequency active sonar (MFA sonar).
See Jan. 3, 2008 Dist. Ct. Order at 12.
The Navy has argued that the balance of hardships tips in
its favor because two of the mitigation measures imposed by
the district court would significantly limit its ability to con-
duct anti-submarine warfare training as part of the scheduled
exercises and would consequently jeopardize its ability to cer-
tify its strike groups as ready for deployment. The two mitiga-
tion measures require the Navy to (1) suspend its use of MFA
sonar if a marine mammal is detected within 2,200 yards of
the sonar source, and (2) reduce the acoustic energy level of
MFA sonar by 6 decibels whenever significant surface duct-
ing conditions are detected. See Jan. 10, 2008 Dist. Ct. Order.
On this appeal, we do not determine the issues finally but
decide only whether the district court relied on an erroneous
legal premise or abused its discretion in issuing its prelimi-
nary injunction order on the basis of its finding that plaintiffs
had a strong likelihood of success on the merits and that the
balance of hardships favored them. Thus, the scope of our
review at this juncture is limited. In light of the short time
before the Navy is to commence its next exercise, the impor-
tance of the Navy’s mission to provide for the national
defense and the representation by the Chief of Naval Opera-
tions that the district court’s preliminary injunction in its cur-
rent form will “unacceptably risk” effective training and strike
2076 NRDC v. WINTER

-- 2 of 8 --

group certification and thereby interfere with his statutory
responsibility under 10 U.S.C. § 5062 to “organiz[e], train[ ],
and equip[ ] the Navy,” we sua sponte partially and temporar-
ily stay the preliminary injunction as adopted by the district
court to the extent provided herein.
We modify the abovementioned two mitigation measures
and stay them in their original form. All other provisions of
the preliminary injunction shall remain unchanged and in
effect. The two modified measures shall be in effect in lieu of
the original measures until the expiration of this stay order.
We act out of an abundance of caution to protect the impor-
tant interests at stake in this appeal pending possible further
review and in the firm belief that the modified provisions
should satisfy the concerns stated by the Chief of Naval Oper-
ations in his affidavit, while protecting the marine mammals
to the extent possible given those concerns.
The first mitigation measure is modified to require the
Navy to suspend its use of MFA sonar if a marine mammal
is detected within 2,200 yards of the sonar source, except
when MFA sonar is being used at a “critical point in the exer-
cise,” in which case the Navy shall reduce the MFA sonar
level by 6 decibels when a marine mammal is detected within
1,000 meters from the sonar source, reduce the MFA sonar
level by 10 decibels when a marine mammal is detected
within 500 meters of the sonar source and suspend its use of
MFA sonar when a marine mammal is detected within 200
meters of the sonar source.1 A “critical point in the exercise”
1We note that the Navy had already agreed to employ the 1,000 meter,
500 meter and 200 meter safety zones before the district court issued its
preliminary injunction order. See Dec. 14, 2007 Bird decl. 58.
Consistent with the Deputy Secretary of Defense’s January 23, 2007
National Defense Exemption from the Requirements of the Marine Mam-
mal Protection Act, the preliminary injunction exempts the Navy from the
2,200 yard “shutdown” requirement where the detected marine mammal
is a dolphin or a porpoise and it appears that the dolphin or porpoise is
intentionally following the sonar-emitting naval vessel in order to play in
or ride the vessel’s bow wave. See Jan. 10, 2008 Dist. Ct. Order. This
exemption shall remain in effect.
2077 NRDC v. WINTER

-- 3 of 8 --

is a point when, in the discretion of the Admiral overseeing
the exercise or the commander of the sonar-emitting vessel,
continued use of MFA sonar is critical to the certification of
a strike group or the effective training of its personnel. For
example, the responsible officer, in his discretion, might
determine that a shutdown would fundamentally undermine
effective training or certification because the particular exer-
cise underway is at a stage that would be seriously compro-
mised by a shutdown.
The second mitigation measure is modified to require the
Navy, when significant surface ducting conditions are
detected, to reduce the MFA sonar level by 6 decibels where
a marine mammal is detected within 2,000 meters of the sonar
source, reduce the MFA sonar level by 10 decibels where a
marine mammal is detected within 1,000 meters of the sonar
source, and suspend its use of MFA sonar where a marine
mammal is detected within 500 meters of the sonar source.
The partial stay of the preliminary injunction is entered
without prejudice to either party’s seeking further relief from
the district court in the event of provable actual harm warrant-
ing such relief.
This stay shall remain in effect for 30 days from the date
of this order, unless a petition for certiorari to the Supreme
Court of the United States is sought. If such petition is filed
on or before the thirtieth day, the partial stay of the prelimi-
nary injunction shall remain in effect until final disposition by
the Supreme Court.
SO ORDERED.
2078 NRDC 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
© 2008 Thomson/West.

-- 8 of 8 --