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THOMAS P. O’BRIENUnited States AttorneyLEON W. WEIDMANChief, Civil DivisionMONICA L. MILLERAssistant United States AttorneyRONALD J. TENPASAssistant Attorney GeneralEnvironment & Natural Resources DivisionMICHAEL R. EITEL, Neb. Bar No. 22889Trial Attorney, Wildlife & Marine Resources SectionUnited States Department of Justice1961 Stout Street, 8th Floor, Room 812Denver, CO 80294Tele: (303) 844-1479 / Fax: (303) 844-1350E-mail: Michael.Eitel@usdoj.govCHARLES R. SHOCKEY, D.C. Bar No. 914879GUILLERMO A. MONTERO, Ma. Bar No. 660903LUTHER L. HAJEK, D.C. Bar No. 467742Trial Attorneys, Natural Resources SectionUnited States Department of JusticeEnvironment and Natural Resources DivisionP.O. Box 663, Washington, DC 20044-0663Tele: (202) 305-0492/(916) 930-2203Fax: (202) 305-0274/(916) 930-2210E-mail: Luke.Hajek@usdoj.govAttorneys for Defendants

UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIAWESTERN DIVISION

NATURAL RESOURCESDEFENSE COUNCIL, INC., et al.,Plaintiffs,v.DONALD C. WINTER, Secretaryof the Navy, et al.,Defendants.))))))))))))))))))Case No. 8:07-cv-00335-FMC (FMOx)

DEFENDANTS’ EX PARTEAPPLICATION FOR EMERGENCYTEMPORARY PARTIAL STAYPENDING CONSIDERATION OF EXPARTE APPLICATION TO VACATEPRELIMINARY INJUNCTION ORTO PARTIALLY STAY PENDINGAPPEAL, AND FOR IMMEDIATEVACATUR OR PARTIAL STAYPENDING APPEAL

Hearing Date: TBDTime: TBDHon. Florence-Marie CooperU.S. District Judge

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Although the California Coastal Commission’s (“CCC”) status in this case isunclear, see Defendants’ Response to the CCC’s Brief on Proposed MitigationMeasures for Preliminary Injunction at 1 n. 1 (docket no. 78) (filed Dec. 21, 2007),Defendants provided the CCC with notice of Defendants’ intent to file the instantApplication, and the CCC responded but did not indicate whether or not it wouldoppose this Application.

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PLEASE TAKE NOTICE that, by submission to the Honorable Florence-MarieCooper of the United States District Court for the Central District of California,Western Division, located at 255 East Temple Street, Los Angeles, California,Defendants Donald C. Winter, et al. (“Navy”), by and through their undersignedcounsel, hereby apply ex parte for an emergency temporary partial stay of thepreliminary injunction pending the Court’s consideration of the Navy’s ex parteapplication to vacate the preliminary injunction or to partially stay the injunctionpending appeal. At the same time, the Navy hereby applies ex parte for immediatevacatur of the preliminary injunction or for partial stay pending appeal. Because theexercises scheduled for January will begin next week, and to preserve thegovernment’s ability to pursue all available avenues of appellate relief, the Navyrespectfully seeks a ruling from this Court by January 17, 2008, at 4 pm PacificStandard Time, to allow the MFA sonar training in the January exercise to proceed asplanned.Notice of Application to Counsel. On January 16, 2008, in accordance withL.R. 7-19, Defendants gave notice to Plaintiffs’ counsel by electronic mail of Defendants’ intention to file this Application on January 16, 2008, betweenapproximately 7:00 p.m. and 12:00 a.m. Plaintiffs have indicated that they opposethis Application.

This Application is made pursuant to Fed. R. Civ. P. 62(c) and 62(e) and Fed.R. App. P. 8(a)(1)(A), (C), and Local Rule 7-19, and is based upon the Navy’sAppellate Brief, filed with the Ninth Circuit on January 15, 2008 (which isincorporated by reference and attached as Exhibit (“Ex.”) 21 to the accompanyingDeclaration of Michael R. Eitel (“Eitel Declaration”)), the Eitel Declaration and

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exhibits thereto; the pleadings and other documents on file in this action; and suchother matters that the Court may consider or of which the Court may take judicialnotice.For the reasons set forth below and in the attached motion filed in the U.S.Court of Appeals for the Ninth Circuit, see Ex. 21, an emergency temporary partialstay of the preliminary injunction is amply warranted. Indeed, legal developments,occurring after this Court’s January 14, 2008, order denying the motion to stay,eliminate the bases for the preliminary injunction and Plaintiffs’ legal challenge.Specifically, on January 15, 2008, President George W. Bush, in accordancewith the express terms of 16 U.S.C. 1456(c)(1)(B), exempted the Navy’s mid-frequency active (“MFA”) sonar use during training activities in the SouthernCalifornia Operating Area (“SOCAL”) from the provisions of the Coastal ZoneManagement Act (“CZMA”), finding that the MFA sonar use that the district courthas enjoined is “essential to national security” and in the “paramount interest of theUnited States.” Ex. 18 at 320. The timing of the issuance of this exemption flowsfrom the fact that the CZMA confers that authority only in response to a court orderthat is appealable under 28 U.S.C. section 1291 or 1292. See 16 U.S.C. §1465(c)(1)(B) (exemption requires “any final judgment, decree, or order of anyFederal court that is appealable”). This Court entered such an order in its preliminaryinjunction on January 3, and again in its modified injunction on January 10, 2008. ThePresident issued the exemption on January 15, 2008, while overseas.Contemporaneous with the President’s decision, on January 15, 2008, theCouncil on Environmental Quality (“CEQ”) provided for alternative arrangements inemergency circumstances, pursuant to the longstanding authority in 40 C.F.R.§ 1506.11, requiring the Navy to follow those arrangements to comply with theNational Environmental Policy Act (“NEPA”) pending completion of anEnvironmental Impact Statement (“EIS”) for SOCAL training in January 2009. Ex.15. The Navy has issued (and will publish in the Federal Register) a decision

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