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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 J. MATTHEW RODRIQUEZ Senior Assistant Attorney General 3 JAMEE JORDAN PATTERSON, State Bar No. 100967 Supervising Deputy Attorney General 4 110 West A Street, Suite 1100 San Diego, CA 92101 5 P.O. Box 85266 San Diego, CA 92186-5266 6 Telephone: (619) 645-2023 Fax: (619) 645-2012 7 Email: Jamee.Patterson@doj.ca.gov 8 Attorneys for Intervenor California Coastal Commission 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY STATEMENT Intervenor California Coastal Commission opposes defendants’ ex parte CALIFORNIA COASTAL COMMISSION, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. DONALD C. WINTER, Secretary of the Navy, et al., Defendants, SACV 07-0335 FMC (FMOx) INTERVENOR CALIFORNIA COASTAL COMMISSION’S OPPOSITION TO DEFENDANTS’ EX PARTE MOTIONS FOR PARTIAL STAY AND VACATUR Hearing: Time: Courtroom: Judge: TBD TBE 750 The Honorable Florence-Marie Cooper IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

27 application for partial stay and immediate vacatur of this Court’s January 10, 2008 28 preliminary injunction. Neither the stay nor vacatur of the preliminary injunction 1

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1 is warranted or appropriate. This Court has expressly weighed the national 2 security interests regarding the Navy’s training exercises against the need for 3 environmental protection and determined that it would be appropriate for the Navy 4 to proceed with those exercises in the interests of national security under specified 5 conditions. The President has now issued an order which attempts to directly 6 contradict this Court’s order. The President’s order provides only a cursory basis 7 for his decision and the federal government has refused to disclose any explanation 8 whatsoever of the reasons offered by the Secretary of Commerce for the 9 exemption. In the absence of any such disclosure, it appears that the President 10 simply disagrees with the conclusions of this Court. Under the Constitution of the 11 United States of America the President cannot review or overturn an order of this 12 Court, an Article III court, because to do so renders this Court’s order an advisory 13 opinion. Such a result violates the doctrine of separation of powers. 14 The Commission also joins plaintiffs, Natural Resources Defense Council

15 et al., in urging that there is no emergency justifying the Council on Environmental 16 Quality determination that the Navy may rely on alternative methods of complying 17 with the National Environmental Policy Act. Any “emergency” is of the Navy’s 18 own creation. 19 20 ARGUMENT Since 1792 the United States Supreme Court and lower courts have

21 consistently held that the executive and legislative branches of our government are 22 not authorized to review or overturn the judicial acts or opinions of an Article III 23 court. Hayburn’s Case, 2 U.S. 408, 2 Dall. 409, 410 fn* (1792). “[B]y the 24 constitution, neither the secretary at war, nor any other executive officer, nor even 25 the legislature, are authorized to sit as a court of errors on ... judicial acts or 26 opinions ....” As the Supreme Court stated in Plaut v. Spendthrift Farm, Inc., 514 27 U.S. 211, 218-219 (1995) 28 /// 2

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“The second type of unconstitutional restriction upon the exercise of judicial power identified by past cases is exemplified by Hayburn's Case, 2 Dall. 409 (1792), which stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch.” The Court further explained, “Article III establishes a ‘judicial department’ with the ‘province and duty ... to say what the law is’ in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy-with an understanding, in short, that ‘a judgment conclusively resolves the case’ because ‘a “judicial Power” is one to render dispositive judgments.’ Easterbrook, Presidential Review, 40 Case W.Res.L.Rev. 905, 926 (1990).” Id.

13 See also, Taylor v. United States, 181 F.3d 1017, 1024 (9th Cir. 1998) [reaffirming 14 the concept that court decisions may not lawfully be revised, overturned or refused 15 faith and credit by another department of government]; Chester James Antieau & 16 William J. Rich, Modern Constitutional Law, 627 (2nd ed. 1997) [the guarantee of 17 Article III of an independent federal judiciary prevents review of judicial decisions 18 by Congress or the executive]. 20 1993) summarized the law as follows: 21 22 23 24 25 26 “A judgment entered by an Article III court having jurisdiction to enter that judgment is not subject to review by a different branch of the government, for if a decision of the judicial branch were subject to direct revision by the executive or legislative branch, the court’s decision would in effect be merely advisory. See, e.g., United States v. Ferreira, 54 U.S. (13 How.) at 49-52. ‘It is, emphatically, the province and duty of the judicial department to say what the law is.’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).” The 19 Second Circuit in Town of Deerfield, N.Y. v. F.C.C., 992 F.2d 420, 428 (2nd Cir.

27 The Court further explained that Congress cannot prescribe a rule for the decision 28 of a cause in a particular way and cannot provide for executive branch review of a 3

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1 judicial determination. Id. The Court reasoned: “[s]imply put, if a judgment of an 2 Article III court were subject to revision by a coordinate branch, it would not be 3 the exercise of judicial power.” Id. (emphasis in original.) The Court concluded 4 that “[j]udgments within the powers vested in courts by the Judiciary Article of the 5 Constitution may not lawfully be revised, overturned or refused faith and credit by 6 another Department of Government.” Id. (emphasis in original.) Article III courts 7 render no judgments not binding and conclusive on the parties and none that are 8 subject to later review or alteration by administrative action. Id. 9 Here, the Navy expressly asked this Court to balance national defense and 10 security interests against the environmental protection afforded under the federal 11 Coastal Zone Management Act (CZMA). The Navy appealed this Court’s August 12 7, 2007 preliminary injunction to the Ninth Circuit Court of Appeals on grounds 13 that this Court gave too little weight to the public interests in having a well trained 14 Navy and in national security. Indeed, the Navy obtained a stay of the preliminary 15 injunction on grounds that this Court should have considered those national 16 security interests in the balance. Natural Resources Defense Council v. Winter, 17 502 F. 3d 859 (9th Cir. 2007). The Ninth Circuit agreed in part with the Navy and 18 remanded this matter back for this Court to consider mitigation measures to allow 19 the Navy to perform the training exercises. The Ninth Circuit, however, rejected 20 the Navy’s contention that national security concerns rendered the issuance of any 21 injunction inappropriate. Natural Resources Defense Council v. Winter, 508 F.3d 22 885, (9th Cir. 2007). The parties briefed the question of appropriate mitigation 23 measures. This Court weighed the public interest, including the harm to the Navy 24 and national security interests, in considering mitigation measures; this Court then 25 issued a preliminary injunction with mitigation measures to allow the Navy to 26 undertake its training. (Navy’s Ex., Tab 6.) The Court subsequently modified the 27 injunction to correct clerical errors and omissions. (Navy’s Ex., Tabs 4-5.) 28 /// 4

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Having expressly asked this Court to balance national defense and security

2 interests against environmental protection and having received a ruling with which 3 it disagreed, the Navy then chose to ask the President to exempt the Navy’s 4 exercises from the CZMA on grounds of national security. The Navy and the 5 National Oceanic and Atmospheric Administration have refused to provide the 6 Commission a copy of the letter written to the President by the Secretary of 7 Commerce requesting the exemption, claiming executive privilege. Hence, the 8 Commission can only rely on what is stated in the President’s January 15, 2008 9 Presidential Exemption. The President stated the “exemption will enable the Navy 10 to train effectively and to certify carrier and expeditionary strike groups for 11 deployment in support of world-wide operational and combat activities, which are 12 essential to national security.” (Navy’s Ex., Tab 18.) Under these facts and 13 circumstances, it appears the President simply disagreed with this Court’s 14 determination that the modified preliminary injunction would protect national 15 security interests while also minimizing harm to marine mammals. (Navy’s Ex., 16 Tab 18.) In issuing the exemption, the President effectively overruled the judicial 17 acts and opinion of this Court, rendering this Court’s decision a mere advisory 18 opinion. This violates the doctrine of separation of powers and is impermissible 19 under our Constitution. 20 The CZMA requires that the Navy determine whether its activity is consistent 21 with California’s management program to the maximum extent practicable. 16 22 U.S.C. § 1456 (c)(1)(A). The CZMA excuses full compliance if and only if full 23 consistency is prohibited by existing law applicable to the Navy. 15 C.F.R. § 24 930.32 (a)(1). After an order of the Court that the Navy’s activity is not in 25 compliance to the maximum extent practicable and certification by the Secretary of 26 Commerce that mediation is not likely to result in such compliance, the CZMA 27 states that the President may, upon written request from the Secretary, exempt from 28 compliance those elements of the Navy’s activity that are inconsistent with 5

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1 California’s management program if the President determines that the activity is in
1/ 2 the paramount interest of the United States. 16 U.S.C. § 1456 (c)(1)(B). The

3 CZMA does not authorize the federal government to refuse to disclose the reasons 4 for such an exemption. In order for the CZMA’s statutory scheme to be consistent 5 with the constitutional doctrine of separation of powers, the grounds for the court 6 order cannot be the same grounds upon which the President grants the exemption. 7 If the grounds are the same, as they appear to be here, the President’s action 8 reviews and overturns an order of an Article III court rendering the court order a 9 mere advisory opinion, a result which cannot be countenanced under our 10 Constitution. The only remedy is to appeal the merits of this Court’s order to a 11 superior tribunal, here the Ninth Circuit Court of Appeals. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. There is a significant question about the constitutionality of 16 U.S.C. § 1456 (c)(1)(B) given that Congress has authorized the President to act after a final 27 order of an Article III judge. However, it is unnecessary to decide the facial validity 28 of the section given the facts and circumstances here which demonstrate that, as applied here, the application of the section is unconstitutional. 26 6
80197922.wpd

This Court should decline to stay or vacate the preliminary injunction. Dated: January 22, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California J. MATTHEW RODRIQUEZ Senior Assistant Attorney General /s/ Jamee Jordan Patterson JAMEE JORDAN PATTERSON Supervising Deputy Attorney General Attorneys for Intervenor
SD2007304580

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1 2 Case Name: 3 4 Case No.: 5 I declare:

DECLARATION OF SERVICE BY U.S. MAIL NRDC v. Winter (on remand) U.S.D.C. for the Central District of California, Western Division SACV 07-0335 FMC (FMOx)

6 I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or 7 older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United 8 States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States 9 Postal Service that same day in the ordinary course of business. 10 On January 22, 2008, I served the attached 11 12 INTERVENOR CALIFORNIA COASTAL COMMISSION’S OPPOSITION TO DEFENDANTS’ EX PARTE MOTIONS FOR PARTIAL STAY AND VACATUR

13 by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, 14 Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: 15 Alan J Heinrich Irell & Manella 16 1800 Avenue of the Stars, Ste 900 Los Angeles, CA 90067-4276 17 Attorney for Plaintiffs: 18 National Resource Defense Council, Inc. 19 Andrew Elsas Wetzler Natural Resources Defense Council, Inc. 20 1314 2nd St Santa Monica, CA 90401 21 Attorney for Plaintiffs NRDC, et al., 22 23 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on January 22, 2008, at San Diego, 24 California. 25 JAMEE JORDAN PATTERSON 26 Declarant 27
80196242.wpd

Guillermo Montero US Department of Justice Environment and Natural Resources Division P O Box 663 Washington, DC 20044-0663 Attorney for Defendants

/s/ Jamee Jordan Patterson Signature

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