Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 1 of 12

THOMAS P. O’BRIEN United States Attorney 2 LEON W. WEIDMAN Chief, Civil Division 3 MONICA L. MILLER Assistant United States Attorney
1 4 5 6 7

RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

MICHAEL R. EITEL, Neb. Bar No. 22889 Trial Attorney, Wildlife & Marine Resources Section United States Department of Justice 8 1961 Stout Street, 8th Floor, Room 812 Denver, CO 80294 9 Tele: (303) 844-1479 / Fax: (303) 844-1350 E-mail: Michael.Eitel@usdoj.gov
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CHARLES R. SHOCKEY, D.C. Bar No. 914879 GUILLERMO A. MONTERO, Ma. Bar No. 660903 LUTHER L. HAJEK, D.C. Bar No. 467742 Trial Attorneys, Natural Resources Section United States Department of Justice Environment and Natural Resources Division P.O. Box 663, Washington, DC 20044-0663 Tele: (202) 305-0492/(916) 930-2203 Fax: (202) 305-0274/(916) 930-2210 E-mail: Luke.Hajek@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. DONALD C. WINTER, Secretary of the Navy, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:07-cv-00335-FMC (FMOx) DEFENDANTS’ REPLY IN SUPPORT OF EX PARTE APPLICATION FOR STAY PENDING APPEAL Date: TBD Time: TBD Hon. Florence-Marie Cooper U.S. District Judge

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 2 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Pursuant to L.R. 7-10 and 7-19, Defendants Donald C. Winter, et al. (“Navy”), respectfully submit this reply in support of the Navy’s Application for Stay Pending Appeal (Docket No. 96) (“Stay Application”). The upcoming COMPTUEX and JTFEX exercises subject to the Court’s January 3, 2008 Order Issuing Preliminary Injunction (“January 3 Order”) (Docket No. 91), as modified on January 10, 2008 (“January 10 Order”) (Docket No. 102) and (“January 10 Injunction”) (Docket No. 103), are of critical importance to the training of our Navy forces and the national security of the United States. In the Stay Application and in the Classified Declaration of Admiral Gary Roughead, Chief of Naval Operations (“Roughead Declaration”) (submitted ex parte/in camera), the Navy demonstrated that a stay pending appeal of the Court’s January 3 Order, as modified on January 10, 2008, is warranted in this case. See Defendants’ Memorandum in Support of Ex Parte Application for Stay Pending Appeal (“Def. Stay Memo.”) (Docket No. 97). In light of the Court’s January 10 Order, and due to the circumstances of at least the next few exercises, the Navy is seeking only a stay pending appeal of the requirements that the Navy shut down mid-frequency active (“MFA”) sonar transmissions when marine mammals are spotted by lookouts within 2200 yards of the ship, dipping sonar, and sonobuoys and that the Navy power down by 6 dB when significant surface ducting conditions are present. January 10 Injunction at 2-5.1/ Plaintiffs Natural Resources Defense Council et al. (“Plaintiffs”) simply mischaracterize the consequences to the Navy of, in particular, the Court’s 2200 yard shutdown requirement and the 6 dB power down requirement in significant surface ducting conditions. Specifically, Plaintiffs rely on data from just three of
1/

Other conditions in the Court’s order may have significant adverse effects on training in certain circumstances. Indeed, for that reason, the Navy reserves the right to challenge such conditions on the merits of its appeal and to seek a further stay if 27 necessary. However, due to the critical nature of these exercises, the Navy seeks only a partial stay pending appeal at this time.
26 28 -1-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 3 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the last eight training exercises; they inaptly compare voluntary shutdowns to mandatory shutdowns; they ignore data clearly undermining their claim of a “de facto” 4,000 yard shutdown zone; they ignore that the injunction expands the area of the shutdown zone by more than 100 times when compared to the existing mandatory shutdown zone; and they ignore the necessary discretion for a naval Commanding Officer to make decisions to ensure that these training exercises are effective. In short, Plaintiffs’ data – the primary support for their claim that the injunction will have minimal training impact – is completely wrong. The Navy respectfully submits this reply memorandum and the supporting Declaration of Vice Admiral Samuel J. Locklear III (“Locklear Decl.”) and exhibits thereto (referred to herein as “Ex.”), to clarify the record regarding the significant impacts of the 2200 yard shutdown and the 6 dB powerdown in significant surface ducting conditions on the upcoming COMPTUEX and JTFEX exercises and on the national security of the Untied States. Indeed, the record makes clear (contrary to Plaintiffs’ representation) that the 2200 yard shutdown zone, if it had been imposed during the eight prior Navy exercises in Southern California, would have resulted in at least a fivefold increase in the number of mandatory shutdowns of MFA sonar use. Similarly, the Navy has demonstrated that a 6 dB power down restriction in significant surface ducting conditions would remove the ability of Navy strike groups to train at full power in conditions that are critical to antisubmarine warfare. Plaintiffs’ reliance on incomplete data ignores a more fundamental problem with their response. The mandatory shutdowns or power downs imposed by this Court’s injunction would usurp the Commanding Officer’s discretion to evaluate whether a training exercise was at a critical stage and thus would be rendered unsuccessful by an ill-timed decrease in sonar use. The Court’s requirements increase the chance of a shutdown or powerdown at a critical stage of the exercise

-2-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 4 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

to such a significant degree that certification of the fleet could not be adequately assured, thereby adversely affecting the national security of the United States. 2200 yard shutdown zone. The Court’s injunction requires the Navy to shut down MFA sonar transmissions when marine mammals are spotted by lookouts within 2200 yards of the ship, dipping sonar, and sonobuoys. January 10 Injunction at 2-4. Plaintiffs’ contention that this restriction would cause minimal harm to the Navy because it would only result in six more shutdowns and negligible lost training time is incorrect. See Plaintiffs’ Opposition to Defendants’ Ex Parte Application for Stay Pending Appeal (“Pls. Opp.”) (Docket Nos. 106 & 107). Plaintiffs assert that: “The Navy’s report for the first three southern California exercises indicates that a 2220 [sic] yard zone would require shut-down in only six additional instances, out of a total of 16 in which the Navy already took action.” Pls. Opp. at 8-9. As explained below, this assertion simply misstates the facts. First, Plaintiffs rely on incomplete data. Plaintiffs analyze the after action reports for just three exercises conducted in February and March 2007. See Pls. Mit. Br. Ex. 14 at 699-709.2/ Plaintiffs’ analysis therefore excludes data from after action reports for five additional training exercises conducted since July 2006. See Exs. 2-7. In analyzing the effect of a 2200 yard shutdown zone, the Navy analyzed a broader data set which included reports from the last eight exercises that were conducted. See Exs. 1-7.3/ Data from the eight exercises show that, of the
2/

“Pls. Mit. Ex.” refers to the exhibits to the Declaration of Josh B. Gordon (Docket No. 70) in Support of Plaintiffs’ Opening Brief Regarding Appropriate Mitigation 24 Measures for the Remaining Socal Exercises (Docket No. 68). “Def. Mit. Ex.” refers to the exhibits to the Declaration of Luther L. Hajek (Docket No. 64) filed in support 25 of Defendants’ Memorandum Regarding a Tailored Preliminary Injunction (Docket No. 66). “PI Opp. Ex.” refers to the exhibits to the Declaration of Luther L. Hajek 26 (Docket No. 34) submitted in Support of Defendants’ Opposition to Plaintiffs Motion for a Preliminary Injunction (Docket No. 25).
23 27 28

The six exhibits report on nine exercises that were conducted in SOCAL from July 2006 to September 2007. The first exercise, USS Boxer ESG-5 COMPTUEX 06-03,
-3-

3/

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 5 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

sightings of marine mammals when MFA sonar was being used, 37 were within 2200 yards, and of those 37 sightings, 7 were within 200 yards (the required shutdown under NDE II, Def. Mit. Ex. 1 at 2-3). See Ex. 1 at 2-3 (Boxer JTFEX 06-04); Ex. 1 at 7-10, 12 (Stennis COMPTUEX 06-04); Ex. 1 at 16 (Stennis JTFEX 07-01); Ex. 1 at 22-24 (Nimitz COMPTUEX 07-01); Ex. 1 at 32-33 (Bonhomme Richard COMPTUEX 07-02); Ex. 1 at 34-35 (Nimitiz JTFEX 07-03); Ex. 1 at 37-39 (Bonhomme Richard JTFEX 07-05); and Ex. 1 at 44-47 (Tarawa COMPTUEX 07-07). As a result, if a 2200 yard shutdown zone had been employed during those eight exercises, the Navy would have been required to shutdown five times more often (37 divided by 7) than it was required to do with a 200 yard shutdown zone. That was the “fivefold increase” the Navy originally cited in support of its stay application. See Def. Stay Memo. at 2, 8. Thus, Plaintiffs’ calculations regarding the potential for increased shutdowns rely on incomplete data and are fatally flawed. Second, when Plaintiffs argue (relying on only three of the eight exercises) that a 2200 yard zone “would require shut-down in only six additional instances,” they are confusing actual shutdowns with required shutdowns. See Pls. Opp. at 8. This is an apples to oranges comparison. Using the same exercises and comparing the correct figures, an increase of the shutdown zone would increase the number of required shutdowns from 2 (200 yards) to 11 (2200 yards). See Ex. 1 at 32-33 (Bonhomme Richard COMPTUEX 07-02); Ex. 1 at 34-35 (Nimitiz JTFEX 07-03); and Ex. 1 at 37-39 (Bonhomme Richard JTFEX 07-05). This is in line with the Navy’s calculation of a fivefold increase in the number of required shutdowns. Plaintiffs’ calculations also discount the fact that, with an expanded shutdown

however, was conducted immediately following the promulgation of NDE I, and did not report on marine mammal sightings. Exhibit 1, referenced above, contains excerpts from each of the six After Action Reports, which are attached as Exhibits 227 7. Moreover, Exhibit 7, the After Action Report for Tarawa COMPTUEX 07-07, is in preliminary, draft form, and its contents may change pending additional review by 28 the Navy.
26 -4-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 6 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

zone, ship commanders may continue to be extra cautious (for the reasons discussed directly below) and shutdown at distances greater than required, in that case greater than 2200 yards. See Locklear Decl. ¶ 10. Thus, the increased number of shutdowns would be even greater than the existing data show. The voluntary shutdowns should not be interpreted as meaning that a mandatory shutdown at similar ranges would not have significant adverse impacts on training. Locklear Decl. ¶ 9. Indeed, a mandatory shutdown at 2200 yards would have a severe impact on the Navy’s MFA sonar training. Id. For a number of reasons, a commanding officer may choose, if the safety of the ship and the tactical situation permits, to power down or shut down sonar if a marine mammal is spotted outside the mandatory safety or shutdown zone. Id. ¶ 10. The Navy has asked its commanding officers to be good stewards of the environment. Id. Commanding officers understand the importance of avoiding harm to marine mammals and have been repeatedly been advised of their obligation to comply with marine mammal mitigation measures. Id. Commanders officers have the discretion to take action to avoid marine mammals when the tactical situation of the training allows it. Id. However, when considering the impact on training, discretionary shutdowns cannot be compared to mandatory shutdowns. If a shutdown is required in all instances when marine mammals are spotted within 2200 yards, then the ship commander must cease sonar transmissions even if the ship has reached a critical point during the exercise where shutting down sonar would cause days of training to be lost. See Ex. 1 at 29 (“[L]ost MFAS time not only equates to lost exercise time but should be considered in the fuller context of its overall impact on the tempo and development of a ‘tactical picture’ shared among exercise participants.”). Antisubmarine warfare is a high stakes game which occurs over many days, and when a ship is finally at the point where it can pinpoint and “kill” a sub, no commander should be expected (or compelled) to forego that critical phase
-5-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 7 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of the training. Locklear Decl. ¶ 11. At that critical point, a shutdown, even for a very short period, would destroy the effectiveness of the exercise because commanders would not be able to evaluate whether the outcome was dictated by the skill of the ship or the submarine or artificial constraints (marine mammal presence). Id. Thus, it is not just the amount of time lost that is important, as Plaintiffs argue, but also the stage in the exercise the shutdowns may occur. Therefore, removing ship commanders’ discretion in deciding whether to shutdown at distances greater than 200 yards would lead to many more shutdowns and result in significant adverse impacts to training. Locklear Decl. ¶ 12. Third, Plaintiffs are incorrect that “a de facto 4,000 yard safety zone” was applied by the Navy during the SOCAL exercises. Pls. Opp. at 9. The Navy already has rebutted this assertion, and it does not comport with the facts. See Supplemental Declaration of Rear Admiral John M. Bird ¶ 11 (“Bird Supp.”) (Docket No. 80); Locklear Decl. ¶ 12. As described directly above, ship commanders have at times shut down sonar when marine mammals were spotted at distances greater than 200 yards when operationally feasible. Locklear Decl. ¶ 10. However, the after action reports also include many instances where ship commanders did not power down or shut down sonar at distances greater than required. During the Stennis COMPTUEX 06-04, for example, sonar operations continued even though marine mammals were reported at 2,000 yards on six separate occasions. See Ex. 1 at 7-8. Similarly, during the Nimitz COMPTUEX 07-01, sonar operations continued even though marine mammals were reported at 4,000 yards on three separate occasions; marine mammals were reported at 2,000 yards on one occasion; marine mammals were reported at 1,700 yards on one occasion; and marine mammals were reported at 1,500 yards on two separate occasions. See Ex. 1 at 22-23. Moreover, during the COMPTUEX completed in November 2007, the Sea Combat Commander aboard the aircraft carrier, who controls the antisubmarine escort, took specific action to eliminate unnecessary
-6-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 8 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

shutdowns out of a concern that precious antisubmarine training was being lost. Locklear Decl. ¶ 12. Fourth, under the existing safety zone (power down by 6 dB at 1000 yards, power down by 10 dB at 500 yards, and shut down at 200 yards), there is significantly greater opportunity for ship commanders to spot marine mammals outside the zone and divert course to avoid a situation that would require a power down or shutdown. See, e.g., Ex. 1, 12 (noting instances where ship commanders diverted course or speed when sonar was in use and when marine mammals were observed, in addition to, or instead of, powering down or shutting down sonar systems); Ex. 1 at 22-23 (same); Ex. 1 at 32, 37-38 (same). A 2200 yard shutdown zone greatly diminishes the opportunity to divert course to avoid encountering marine mammals and thereby prevent training disruptions, because marine mammals may not be spotted at all until they approach to that distance, requiring an immediate shutdown. Fifth, the 2200 yard shutdown zone creates a far larger area covered by the shutdown requirement. Indeed, the shutdown area is over 100 times larger than current mitigation approved by the Secretary of Defense in NDE II after consulting with the Secretary of Commerce and relied upon by the National Marine Fisheries Service (NMFS) – the expert wildlife agency – in the Biological Opinion. Bird Supp. ¶ 11; Biological Opinion, PI Opp. Ex. 8 at 733-34; NDE II, Def. Mit. Ex. 1 at 7-8. All other things being equal, the court’s 2200 yard shutdown zone requires that a ship wait for a marine mammal to travel eleven times the distance (2200 yards versus 200 yards) before sonar transmission may be reactivated. NDE II, Def. Mit. Ex. 1 at 8.4/ Because a ship must wait until a larger area is cleared before

Under NDE II, sonar transmission may also resume if a marine mammal has not been detected for 30 minutes or the vessel has transited more than 2000 yards beyond 27 the location of the last detection. Def. Mit. Ex. 1 at 8. The Navy interprets the injunction as not disturbing these other options. See January 10 Injunction at 5-6 28 (“The Navy shall continue to employ the mitigation measures listed in NDE II. To the
-7-

4/

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 9 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MFA sonar transmission will resume, the length of the shutdowns will be greater than under NDE II. Sixth, the Court’s application of the 2200 yard shutdown zone to helicopter dipping sonar and sonobuoys, as well as shipboard sonar, would have significant adverse consequences that the Court may not have intended. Helicopter dipping sonar and sonobuoys are important antisubmarine warfare tools in their own right and can be deployed faster than a ship can move. Locklear Decl. ¶ 11. Dipping sonar and sonobuoys also give ship commanders other alternative sources of sonar (which emit at substantially lower source levels) to employ when shipboard sonar use is restricted due to the presence of marine mammals. Id. Without this condition, commanders would at least have the option of employing these other sonar alternatives, which NMFS has found do not pose a risk to marine mammals. Biological Opinion, PI Opp. Ex. 8 at 723. Power down in significant surface ducting conditions. The Court’s order requires that the Navy power down MFA sonar by 6 dB when significant surface ducting conditions are detected. January 10 Injunction at 5. Plaintiffs assert that “the Navy operated with a surface-ducting measure in place during the tenure of the 2006 NDE without any measurable loss of training objectives.” Id. at 12. To the contrary, the Navy has provided substantial testimony that requiring ships to power down MFA sonar by 6 dB in significant surface ducting conditions would prevent effective MFA sonar training where such conditions exist. See Declaration of Rear Admiral John M. Bird (“Bird Decl.”) ¶ 52 (Docket No. 67). Although such conditions are not prevalent in SOCAL, the Navy must train in them when they do occur. As discussed in the context of the 2200 yard shutdown above, a power down at a critical point could cause a sonar operator to lose track of a submarine, thereby making days of training a wasted effort and making evaluation of the extent that the requirements of this Order conflict with, or are stricter than, the NDE II mitigation measures, this Order controls.”).
-8-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 10 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

success of the commanders impossible. Moreover, Plaintiffs are incorrect that the Navy has employed such a condition in the past. See Pls. Opp. at 11-13. The first NDE issued on June 30, 2006 (“NDE I”) required that: “In significant surface ducting conditions, the Navy will enlarge the safety zones such that a 6-dB powerdown will occur if a marine mammal enters the zone within a 2000 m radius around the source . . . .” NDE I, Def. Mit. Ex. 2 at 12.5/ The court’s requirement that the Navy always power down by 6 dB in surface ducting conditions is significantly different from the NDE I requirement that a power down occur only where marine mammals are present. Because the injunction flatly prohibits training at full power in significant surface ducting conditions (requiring instead reduced power), the Navy can never use SOCAL to train in surface ducting conditions in a sufficiently realistic manner. Accordingly, the inability to train in surface ducting conditions when they are encountered would have significant adverse impacts on training effectiveness. Impact on military readiness. Finally, the Chief of Naval Operations, based upon a review of the Court’s conditions, the data from the eight after action reports, and his 34 years of experience as a Naval officer, much of it spent on ships or assignments with antisubmarine warfare missions, determined that the Court’s conditions, especially the 2200 yard shutdown and 6 dB power down in significant surface ducting conditions, would have unacceptable impacts on critical training. See Classified Roughead Declaration. Nothing the Plaintiffs have provided carries the weight of the personal assessment of the one person charged with responsibility for the readiness of the Navy to fight and win whenever the security of the nation demands it. Accordingly, for the reasons expressed above, in the Navy’s Ex Parte Application for Stay Pending Appeal and supporting memorandum, and in the
5/

28

NDE II contains no restriction on training in surface ducting conditions. See Def. Mit. Ex. 1.
-9-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 11 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Classified Roughead Declaration, the Navy respectfully submits that a stay pending appeal of the Court’s January 3 Order, as modified by Orders dated January 10, 2008, is warranted and appropriate in this case. Therefore, the Navy respectfully requests a ruling on its pending stay application by January 14, 2008. Respectfully submitted this 13th day of January, 2008. /s/ Luther L. Hajek Luther L. Hajek D.C. Bar No. 467742 THOMAS P. O’BRIEN United States Attorney LEON W. WEIDMAN Chief, Civil Division MONICA L. MILLER Assistant United States Attorney RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division MICHAEL R. EITEL, Neb. Bar No. 22889 Trial Attorney, Wildlife & Marine Resources Section United States Department of Justice 1961 Stout Street, 8th Floor, Room 812 Denver, CO 80294 Tele: (303) 844-1479 / Fax: (303) 844-1350 E-mail: Michael.Eitel@usdoj.gov CHARLES R. SHOCKEY, D.C. Bar No. 914879 GUILLERMO A. MONTERO, Ma. Bar No. 660903 LUTHER L. HAJEK, D.C. Bar No. 467742 Trial Attorneys, Natural Resources Section United States Department of Justice Environment and Natural Resources Division P.O. Box 663, Washington, DC 20044-0663 Tele: (202) 305-0492/(916) 930-2203 Fax: (202) 305-0274/(916) 930-2210 E-mail: Charles.Shockey@usdoj.gov Guillermo.Montero@usdoj.gov Luke.Hajek@usdoj.gov Attorneys for Defendants

-10-

Case 8:07-cv-00335-FMC-FMO

Document 108

Filed 01/13/2008

Page 12 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE I, Luther L. Hajek, hereby certify that on January 13, 2008, I electronically filed the foregoing DEFENDANTS’ REPLY IN SUPPORT OF EX PARTE APPLICATION FOR STAY PENDING APPEAL with the Clerk of Court using the CM/ECF system, which will automatically send email notification to attorneys of record. Moreover, I caused to be served, via electronic and overnight mail, postage prepaid, copies of the foregoing on the following counsel: Joel R. Reynolds Andrew E. Wetzler Cara A. Horowitz NATURAL RESOURCES DEFENSE COUNCIL, INC. 1314 Second Street Santa Monica, CA 90401 Tele: (310) 434-2300 / Fax: (310) 434-2399 awetzler@nrdc.org /s/ Luther L. Hajek Luther L. Hajek

Sign up to vote on this title
UsefulNot useful