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1 Richard B. Kendall (State Bar No. 90072) 2 Josh B. Gordon (State Bar No. 244818) 3 1800 Avenue of the Stars, Suite 900 4 Telephone: (310)277-1010 5 Email: gfayer@irell.com 6 Attorneys for Plaintiff
Facsimile: (310)203-7199 IRELL & MANELLA LLP Los Angeles, California 90067-4276 Gregory A. Payer (State Bar No. 232303)

Natural Resources Defense Council, Inc.

1314 9 Santa Second Street90401 Monica, CA Telephone: (310)434-2300 10 Facsimile: (310)434-2399

7 Joel R. Reynolds (State Bar No. 85276) Cara A. Horowitz (State Bar No. 220701) 8 NATURAL RESOURCES DEFENSE COUNCIL, INC.

11 Email: chorowitz@nrdc.org

International Fund for Animal 13 Cetacean Society International;Welfare;

Attorneys for Plaintiffs 12 Natural Resources Defense Council, Inc.; For Coastal Protection; 14 LeagueFutures Society; and Jean-Michel Cousteau Ocean 15

UNITED STATES DISTRICT COURT WESTERN DIVISION

16 17 18

CENTRAL DISTRICT OF CALIFORNIA

19 COUNCIL, INC. et al, 20 Plaintiffs, 21
v.

NATURAL RESOURCES DEFENSE

Case No. SACV 07-0335 FMC (FMOx) PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS' EXPARTE APPLICATION FOR STAY PENDING APPEAL Judge: Hon. Florence-Marie Cooper Ctrm: 750

22 DONALD C. WINTER, Secretary of the Navy, et al., 23 24 25 26 27 28
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Defendants.

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2 3 I. 4 II. 5 6 7 8 9
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TABLE OF CONTENTS Page INTRODUCTION DEFENDANTS ARE NOT ENTITLED TO A STAY OF THE COURT'S MITIGATION ORDER A. B. Legal Standards The Navy Is Not Likely to Prevail on the Merits of Its Appeal 1. 2. 3. The Court Correctly Held That Plaintiffs Are Likely to Prevail on the Merits of Their NEPA and CZMA Claims The Court Correctly Determined that Plaintiffs Have Shown a Possibility of Irreparable Injury Absent Injunctive Relief. The Mitigation that the Court Ordered Is Both Practicable and Significantly Protective of the Marine Environment a. The Court's Determination that the Measures Set Forth in the Mitigation Order Are Both Practicable and Protective of the Marine Environment Is Not Clearly Erroneous The Balance of the Harms and Public Interest Favor Imposition of the Mitigation Measures that the Court Has Ordered 1 4 4 5 5 5 6

7 14 15 17 20

b. C. D. III.

Traditional Deference to the Executive Branch Regarding Matters of National Security Cannot Justify a Stay The Equities Do Not Favor Issuance of a Stay

CONCLUSION

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2 3 Cases

TABLE OF AUTHORITIES Pagefs)

4 Am. Bioscience v. Thompson, 5 6 7 8
10 11 13 14 16 17 19 20

243 F.3d 579 (D.C.Cir. 2001)

10

Arizona Cattle Growers'Ass'n v. U.S. Fish and Wildlife, Bureau of Land Management, 273 F.3d 1229 (9th Cir. 2001) Asarco Inc. v. EPA, 616 F.2d 1153 (9th Cir. 1980) 542 U.S. 656 (2004)

5
10
4 4, 14 14 16

9 As hero ft v. ACLU,

Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147 (9th Cir. Mar. 24, 2006) 27 F.Supp.2d 8 (D.D.C. 1998)

12 Fund for Animals v. Clark,
Gilligan v. Morgan, 413 U.S. 1(1973)

15 GWENAlliance v. Aldridge,

855 F.2d 1380 (9th Cir. 1988)

16
4 14 5

Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) 163 F.Supp.id 1202 (D. Haw. 2001)

18 Makau v. Rumsfeld,

Minidoka Irrigation Dist. V. Dep't of Interior of U.S., 406 F.3d 567 (9th Cir. 2005)

21 Nat 'I Audubon Soc V v. Dep 't ol 422 F.3d 174 (4th Cir. 2005) 22 23 25 26 28
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I.

16
3 passim 5 14, 15

Nat 7 Wildlife Fed'n v. Nat 'I Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005) 508 F.3d 885 (9th Cir. 2007)

24 Natural Resources Defense Council, Inc. v. Winter,
NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) 279 F.Supp.2d 1129 (N.D. Cal. 2003)

27 NRDC v. Evans,

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1 2 3 NRDCv. Navy, 4 5 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Pagefs)

857 F.Supp. 734 (C.D. Cal. 1994)

15,19 3, 15, 16, 17 14 10 10

San Luis Obispo Mothers for Peace v. Nuclear Regulatory Com 'n, 449 F.3d 1016 (9th Cir. 2006) 111 F.Supp. 1081 (W.D. Wash. 1991)

6 Seattle Audubon Soc. v. Evans,

Sierra Club v. Peterson, 185F.3d349(5thCir. 1999) 395 F.3d 1019 (9th Cir. 2005)

9 The Lands Council v. Powell,
Rules

Fed. R. Civ. P. 62
Regulations 71 Fed. Reg. 38,718-19 71 Fed. Reg. 38720

4
12 12

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I.

INTRODUCTION Defendants' Ex Parte Application requesting that the Court stay its January 3

2

3 Order Issuing Preliminary Injunction ("January 3 Order") as subsequently modified 4 by the Court's January 10 Modified Order Issuing Preliminary Injunction ("January 5 10 Order") (collectively, "Mitigation Order") should be denied. In issuing its initial 6 preliminary injunction of the SOCAL exercises on August 6, 2007 ("August 6 7 Order"), the Court concluded that Plaintiffs are likely to prevail on the merits of 8 their claims that Defendants have violated the National Environmental Policy Act 9 ("NEPA") and the Coastal Zone Management Act ("CZMA"), that a possibility of
10 irreparable harm exists in the absence of an injunction, that the balance of the harms 11 favors an injunction, and that the public interest is served by its issuance. On 12 appeal, the Ninth Circuit affirmed each of these conclusions, but stated that "having 13 considered the effect that narrowly tailored mitigation conditions might have on the 14 parties' interests, we conclude that such an injunction would be appropriate." 15 Natural Resources Defense Council, Inc. v. Winter, 508 F.3d 885, 887 (9th Cir. 16 2007). The Court of Appeals thus remanded for this Court to issue a tailored 17 injunction, ordering specific mitigation measures for the protection of the marine 18 environment that would permit the Navy to carry out its training activities subject to 19 those measures. This Court's Mitigation Order did just that. 20
The Navy can show no error in the Mitigation Order. First, the Ninth Circuit

21 has already affirmed this Court's determination that Plaintiffs are entitled to 22 injunctive relief in connection with the Navy's apparent violations of two federal 23 environmental statutes - each of which is independently sufficient to support the 24 issuance of injunctive relief. The Ninth Circuit affirmed this Court's determination 25 that Plaintiffs are likely to prevail on the merits of their NEPA and CZMA claims, 26 that Plaintiffs have demonstrated a possibility of irreparable harm to the 27 environment sufficient to merit injunctive relief, and that the balance of the harms 28 and the public interest favor injunctive relief. As this Court noted, these findings
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"were not disturbed by the Ninth Circuit's November decision." January 3 Order at

2 5. The Navy can show no possibility of prevailing on a challenge to those findings 3 and conclusions. The Ninth Circuit has already affirmed them. 4
Second, the Navy can show no error in the Court's tailoring of the injunction.

5 The mitigation measures that the Court ordered are both practicable for the Navy to 6 implement and necessary to comply with federal law. The Court's findings 7 concerning the practicability and necessity of these mitigation measures are factual 8 findings and cannot be disturbed absent a showing of clear error. As Plaintiffs 9 emphasized in their mitigation briefing, the evidence submitted to the Court clearly
10 demonstrates that these measures are practicable. Indeed, the Navy has 11 implemented most of these measures - as well as even more stringent measures 12 during similar training exercises in the past. There is also more than ample support 13 in the record for the Court's conclusion that these measures are necessary for the 14 protection of the marine environment - as demonstrated by the overwhelming 15 evidence that the Navy's activities have a demonstrated potential for significant 16 harms to the marine environment in absence of effective protections. In sum, 17 Defendants can show no likelihood of prevailing on the merits of their appeal and 18 their application for stay should be denied. 19
In arguing that the Court's Mitigation Order is erroneous and should be

20 overturned on appeal, the Navy clearly misunderstands the standard for appellate 21 review of this Court's Order. While the Navy repeatedly claims that the Court erred 22 by failing to adopt the Navy's view of specific mitigation measures because the 23 Navy submitted evidence supporting its view of those measures, that is not the stuff 24 of which "clear error" is made. The Court's factual determinations regarding 25 appropriate mitigation measures - which were made after a careful review of the 26 voluminous evidence and briefing submitted by both parties and after a personal 27 Navy-guided tour of one of the Navy's sonar-equipped destroyers - must be upheld 28 absent a showing that there was insufficient evidence in the record to support the
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Court's determination that the mitigation it ordered is practicable and would

2 significantly reduce impacts on southern California marine life. Nat 7 Wildlife 3 Fed'n v. Nat'I Marine Fisheries Serv., 422 F.3d 782, 794 (9th Cir. 2005) ("NWF'). 4 That is clearly not the case here. Plaintiffs submitted many hundreds of pages of 5 scientific evidence, declarations from eminent scientists, and the Navy's own 6 internal documents showing that each of the measures that the Court ordered was 7 both practicable and significantly protective of the marine environment. 8
The Navy's application fails for the additional reason that the equities do not

9 favor issuing a stay under the circumstances here. The temporary inconvenience of
10 having to implement additional protective measures during the remaining SOCAL 11 exercises - many of which the Navy has already implemented in its exercises in the 12 past while still training and certifying its troops for deployment - cannot outweigh 13 the likelihood of irreparable harm to the environment should the Navy be permitted 14 to carry out its exercises without proper safeguards in place. 15
Nor can traditional deference to the executive branch regarding national

16 security matters justify a stay. Contrary to the Navy's representations, deference is 17 not a blank check to violate the law and does not insulate the executive's actions 18 from judicial review and scrutiny. See San Luis Obispo Mothers for Peace v. 19 Nuclear Regulatory Com 'n, 449 F.3d 1016, 1035 (9th Cir. 2006) ("There is no 20 'national defense' exception to NEPA.... The Navy, just like any federal agency, 21 must carry out its NEPA mandate to the fullest extent possible and this mandate 22 includes weighing the environmental costs of the [project] even though the project 23 has serious national security implications." (internal quotation omitted)). The Court 24 carefully considered and more than adequately accommodated and deferred to the 25 Navy's national security claims in crafting its order. 26
The Navy raises no new arguments or issues on its request for stay - either on

27 the merits or on the equities - that the Court has not already carefully considered 28 and weighed in crafting its preliminary injunction. Defendants have fallen far short
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of meeting their burden of demonstrating that they are likely to succeed in any

2 eventual appeal of the Court's ruling. Plaintiffs respectfully request that their 3 application be denied. 4 II. 5 6 7
DEFENDANTS ARE NOT ENTITLED TO A STAY OF THE COURT'S MITIGATION ORDER A. Legal Standards Motions to stay an injunction pending appeal are entrusted to the sound

8 discretion of the district court. Fed. R. Civ. P. 62(c). The standard for stay requests 9 is largely the same as that for preliminary injunctive relief. See, e.g., Hilton v.
10 Braumkill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Thus, 11 Defendants are not entitled to a stay of the Court's injunction unless they can 12 demonstrate: "(1) a combination of probable success on the merits [of their appeal] 13 and the possibility of irreparable harm; or (2) that serious questions are raised and 14 the balance of hardships tips sharply in favor of granting the requested injunction." 15 Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 1158-59 (9th Cir. 16 2006). 17
On appeal, a district court's issuance of a preliminary injunction is reviewed

18 for "abuse of discretion." Ashcroft v. ACLU, 542 U.S. 656, 664 (2004). This 19 "review is limited and deferential," and "[m]ere disagreement with the district 20 court's conclusions is not sufficient reason [] to reverse the district court's decision 21 regarding a preliminary injunction." NWF, 422 F.3d at 793. A district court's 22 factual determinations, including findings of irreparable harm, will not be 23 overturned "as long as findings are plausible in light of the record viewed in its 24 entirety." Id. at 795. Even when the "facts and scientific analysis underlying the 25 district court's decision are hotly contested," an appellate court's review is "very 26 deferential." Id. at 794. "[I]n reviewing district court findings of fact for clear 27 error," the appellate court "must view the evidence in the light most favorable to the 28
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1 prevailing party." Minidoka Irrigation Dist. V. Dep 't of Interior of U.S., 406 F.3d 2 567, 572 (9th Cir. 2005) (citation omitted).1 3 4 5 6
B. The Navy Is Not Likely to Prevail on the Merits of Its Appeal 1. The Court Correctly Held That Plaintiffs Are Likely to Prevail on the Merits of Their NEPA and CZMA Claims The Court's August 6, 2007 Order granting Plaintiffs' motion for preliminary

7 injunction concluded that Plaintiffs were likely to prevail on the merits of their 8 NEPA and CZMA claims. Aug. 6 Order at 5; Jan. 3 Order at 4-5. The Court of 9 Appeals' November 13 Order expressly affirmed this conclusion, holding that
10 "Plaintiffs have shown a strong likelihood of success on the merits of their claims 11 under [NEPA and the CZMA]...." NRDC v. Winter, 508 F.3d at 886. This holding 12 is binding under law of the case principles and the Navy presents no colorable basis 13 for overturning it. In short, the Navy's violations of law that form the basis of the 14 injunction that the Navy here asks the Court to stay are not subject to doubt. 15 16 17
2. The Court Correctly Determined that Plaintiffs Have Shown a Possibility of Irreparable Injury Absent Injunctive Relief Likewise, in its initial Preliminary Injunction Order this Court found that

18 Plaintiffs had "established to a near certainty that use of MFA sonar during the 19 planned SOCAL exercises will cause irreparable harm to the environment and 20 Plaintiffs' standing declarants." Aug. 6 Order at 19; Jan. 3 Order at 12. The Court 21 of Appeals unequivocally affirmed this aspect of the Court's ruling, holding that 22 Plaintiffs "have met the necessary burden of proof having demonstrated "the 23 possibility of irreparable injury if relief is not granted." NRDCv. Winter, 508 F.3d 24 25
Plaintiffs' NEPA and CZMA claims have been brought pursuant to the Administrative Procedure Act ("APA"). Under the APA, Courts may not simply 26 "rubber-stamp ... administrative decisions that they deem inconsistent with a 27 statutory mandate or that frustrate the congressional policy underlying a statute." Arizona Cattle Growers' Ass 'n v. U.S. Fish and Wildlife, Bureau of Land 28 Management, 273 F.3d 1229, 1236 (9th Cir. 2001) (quoting NLRB v. Brown, 380 U.S. 278, 291-92, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965)).
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1 at 886. As with the Court's merits determination, this holding is binding under law 2 of the case principles and the Navy presents no colorable basis for overturning it. 3 4 5
3. The Mitigation that the Court Ordered Is Both Practicable and Significantly Protective of the Marine Environment This Court's August 6 PI Order also found that "the balance of hardships tips

6 in favor of granting an injunction" and that "the harm to the environment, Plaintiffs, 7 and public interest outweighs the harm that Defendants would incur." Aug. 6 Order 8 at 19; Jan. 3 Order at 12. Again, the Court of Appeals affirmed this aspect of the 9 Court's ruling:
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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 circumstances 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. NRDC v. Winter, 508 F.3d at 886. The Navy nevertheless argues (apparently) that a stay should issue because it asserts that the Court's determination that the mitigation measures included in the Mitigation Order are practicable and needed to address the Navy's violations of law was clearly erroneous, thus tipping the balance of hardships and the public interest against the issuance of an injunction that includes such measures. For the reasons stated below, this argument fails. Since the Ninth Circuit has already determined that the public interest and the balance of harms favor the issuance of "an injunction that require[s] adequate mitigation measures," id., the sole issue that remains for the Court of Appeals to address on the Navy's appeal is whether this Court abused its discretion in ordering the Navy to adopt the mitigation measures set forth in the Mitigation Order. After reviewing the considerable evidence submitted by the parties and personally taking a Navy-guided tour of one of its sonar vessels, this Court properly determined that the measures set forth in the Mitigation Order are both practicable for the Navy to implement and needed to address the Navy's violations of law. Jan. 3 Order at 13. Because these factual determinations were not clearly erroneous, the Navy can show
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no likelihood of prevailing on the merits of its appeal and, accordingly, its instant

2 request for a stay pending appeal must be denied. 3 4 5 6 7
a. The Court's Determination that the Measures Set Forth in the Mitigation Order Are Both Practicable and Protective of the Marine Environment Is Not Clearly Erroneous This Court's August 6 Order determined that the mitigation measures that the

8 Navy proposed for the SOCAL exercises were "woefully inadequate and 9 ineffectual" for preventing harm to the SOCAL marine environment and for
10 preventing the possibility of significant effects on such environment. Aug. 6 Order 11 at 17. The Ninth Circuit agreed that the SOCAL exercises, as the Navy proposed to 12 conduct them, were illegal under NEPA and the CZMA and that the Navy must 13 implement additional mitigation in order to comply with these laws. NRDC v. 14 Winter, 508 F.3d at 886-87. For the reasons set forth in the Court's Mitigation 15 Order and those set forth below, the mitigation measures that the Court has now 16 ordered the Navy to implement are needed to address the Navy's violations of 17 NEPA and the CZMA - to reduce the likelihood of significant effects on the marine 18 environment and to bring the Navy's activities closer in line with the requirements 19 of the California Coastal Act. 20
Plaintiffs have also submitted many hundreds of pages of scientific evidence,

21 declarations from eminent scientists, and the Navy's own internal documents 22 showing that each of the measures that the Court ordered was practicable for the 23 Navy to implement. 24 25 26 27 28
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-Redacted1

2 4 the record. 5

The carefully-considered measures set forth by

3 this Court clearly fulfill the aims set by the Ninth Circuit and are well-supported by
In arguing to the contrary, the Navy grossly misunderstands the applicable

6 standard for appellate review of this Court's determinations - indeed, its entire 7 application is infected with this error. The Navy repeatedly asserts that the Court 8 erred because the Navy submitted evidence supporting its position on various 9 measures and, notwithstanding this evidence, the Court failed to adopt its position
10 on each measure. Def. Br. at 8-9, 11, 12-13. But even taking the Navy's assertions 11 at face value, this is not the stuff of which "clear error" is made. The Court's 12 assessment of the evidence before it and its factual determinations regarding 13 appropriate mitigation measures cannot be overturned absent a showing that there 14 was insufficient evidence in the record to support the Court's determinations. NWF, 15 422 F.3d at 793. That is clearly not the case here. As seen below and in Plaintiffs' 16 prior briefing, and as acknowledged in the Court's January 3 Order, there is ample 17 evidence in the record demonstrating that the mitigation measures that the Court 18 adopted were both practicable for the Navy to implement and necessary for the 19 protection of marine life in southern California. 20 21
(1) 2200 yard shut-down zone The Navy argues that a 2200 yard safety zone is impracticable because it

22 "exponentially increases the number of times" that sonar would have to shut down. 23 Def. Br. at 7. Specifically, it claims twice - without any analysis or citation to 24 evidence - that the measure would result in a "five-fold increase" in required shut25 downs. Def. Br. at 2, 8. That assertion is both misleading and contradicted by the 26 Navy's own past practice. The Navy's report for the first three southern California 27 exercises indicates that a 2220 yard zone would require shut-down in only six 28 additional instances, out of a total of 16 in which the Navy already took action. Ex.
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1 14 at 10-11, A-3 to A-l 1 (citing 6 instances between 200 and 2200 yards where 2 Navy powered down but did not secure sonar).2 Moreover, as Plaintiffs discussed at 3 length in their opening brief, the requirement's marginal effect on training hours is 4 extremely small. Op. Br. at 20 n.9; Ex. 14 at 10-11 (indicating that six events would 5 affect under 1% of all 317 hours of sonar use)
-RedactedEx. 19 at 2

6 (indicating this would be significant overestimate given ships' average rate of 7 speed). Indeed, during the first three SOCAL exercises, the Navy observed a de 8 facto 4,000 yard safety zone, sometimes shutting down when marine mammals were 9 sited at 4000 yards, and the Navy has never contended that its strike groups were not
10 properly trained or could not be certified during these exercises. Op. Br. at 19; Ex. 11 14 at 10-11, A-3 to A-l 1. For these and other reasons, the Court's finding that the 12 requirement would present a minimal imposition on the Navy is hardly erroneous. 13 Jan. 3 Order at 15 j
i

f

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14 15
The Navy further avers that the Court "did not appropriately consider" its

16 claim that a 200 meter shut-down zone sufficiently reduces harm to marine 17 mammals. Def. Br. at 8. In fact, the Court carefully considered the evidence before 18 it, and concluded that the Navy's 1000 yard/ 500 yard/ 200 yard scheme "is grossly 19 inadequate to protect marine mammals from debilitating levels of sonar exposure." 20 Jan. 3 Order at 8, 15 (citing Exs. 5, 6; Bain Supp. Decl. flf 7, 12-13; Parsons Decl. If 21 5, and other evidence). As the record shows, a larger safety zone is needed given 22 the vast area in which significant impacts on all species are expected to occur, the 23 record of sonar-related injuries occurring at considerable distances from the sonar 24 array, and the difficulty of determining the bearing of animals even when they are 25 sighted. Id.26 27
All citations to "Ex." refer to the exhibits to the declaration of Josh B. Gordon filed under seal in support of Plaintiffs' Opening Brief Regarding 28 Appropriate Mitigation Measures for the Remaining SOCAL Exercises on December 14, 2007.
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Parsons Decl. 19. The Court's findings were well considered and amply Additionally, the Navy claims that, because dipping sonar and sonobuoys

2 supported by the evidence.3 3 4 transmit at lower decibel levels and with shorter pulses than ships and submarines, it 5 should not maintain a 2200-yard shut-down zone around them. Def. Br. at 10. The 6 evidence before the Court, however, demonstrates that mid-frequency sound with 7 even shorter pulses and far lower source levels cause some species to react strongly 8 from kilometers away. Horowitz Decl. Ex. 28 (harbor porpoises); Horowitz Decl. 9 Ex. 29 at 10 (NMFS, indicating strong reactions in harbor porpoises); Horowitz
10 Decl. Ex. 78 (orcas); Bain Decl. f 6 (orcas). The Court was correct in requiring that 11 a similar safety zone be maintained for dipping sonar and sonobuoys. 12 13
(2) Catalina Basin According to the Navy, the Court erred in restricting sonar from Catalina

14 Basin because it purportedly characterized that area as a "chokepoint" (Def. Br. at 15 13), which the Navy defined, in its opening brief, as a "strategic strait or canal." 16 Jan. 3 Order at 17 (citing Def. Br. at 11). But the Court did no such thing: on the 17 contrary, it made a reasonable factual finding that - regardless of the terminology 18 used by the Navy - the Catalina Basin affords only limited ingress and egress and 19 includes a high density of marine mammals. Jan. 3 Order at 17; see also Baird 20 Supp. Decl. f 8; Ex. 13 at 2-7 (Navy bathymetric map, indicating that area lies 21 22 23 24 25 26 27 28
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The Navy cites Asarco Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980), and Am. Biosciencev. Thompson, 243 F.3d 579, 582-83 (D.C. Cir. 2001), for the proposition that Plaintiffs' declarations cannot be used to challenge the Navy's safety zone mitigation because they lie outside the administrative record. Def. Br. at 9. Unlike those cases, however, the Court here is considering this evidence within the context of equitable relief, an established exception to the limit on extra-record material. Even if it were otherwise, such material would be admissible as "necessary to determine 'whether the agency has considered all relevant factors and has explained its decision'" or as "necessary to explain technical terms or complex subject matters" - all the more so given the Navy's failure to produce an administrative record for the challenged actions. Sierra Club v. Peterson. 185 F.3d 349, 372 (5th Cir. 1999); The Lands Council v. Powell, 395 F.3d 1019, 1^30 (9th Cir. 2005). Moreover, the Navy's one-sided approach to admissibility cannot be squared with its almost exclusive reliance on a single declarant, RADM Bird, throughout its briefing. Finally, the Court explicitly relies both on published studies and on declarations for its finding at issue here. Jan. 3 Ord. at 15.
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between two islands and two long escarpments);;

2 3 4 5 6 7 8 9 error in the Court's findings here.
10
The Navy also argues that the Court did not give "proper consideration" to the There is no -Redacted-

11 Navy's general statement about its use of this area. In fact, as set forth in Plaintiffs' 12 opening brief, the record contains extensive and unrebutted evidence demonstrating 13 the practicability of the Court's measure:; 14 15 16 17 18 19 20 21 22 24 of the measure. 25 26
(3) Surface-ducting conditions The Navy argues that the Court erred in prescribing a 6-decibel power down The evidence before the Court amply shows the effectiveness of -Redacted-

23 geogiapmc avoidance, the biological importance of the area, and the practicability

27 during surface-ducting conditions because the requirement would provide only a 28 negligible benefit for marine mammals. Def. Br. at 11. This assertion is meritless.
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In support of its position, the Navy merely restates its baseless claim that surface

2 ducting "only poses a threat" in combination with other factors, such as steep 3 bathymetry or "multiple sources of sonar operating simultaneously." Def. Br. at 11. 4 Yet, as Plaintiffs have observed (Op. Br. at 10), such a claim has been rejected even 5 by NMFS, which has made clear that surface ducting elevates the risk of serious 6 harm independent of other factors. 71 Fed. Reg. 38,718-19 ("the presence of 7 surface ducts ... added to the operation of mid-frequency sonar in the presence of 8 cetaceans (especially beaked whales and, potentially, deep divers) may increase 9 the probability of producing a sound field with the potential to cause cetaceans to
10 strand, and therefore, necessitates caution"); see also 71 Fed. Reg. 38720; 11 12 ;
-Redacted. As Plaintiffs have noted, this concern is

13 particularly pressing here where the Navy plans to use sonar in areas rich in deep14 diving species, including as many as seven beaked whale species such as Perrin's 15 beaked whale, whose entire known range exists between Monterey and San 16 Diego. Ex. 12 at 578-79; Baird Decl. ^ 12. 17
Similarly, the Navy's suggestion that the Court did not properly consider the

18 Navy's training needs (Def. Br. at 11) has no merit. During its briefing (Def. Op. 19 Br. at 27), the Navy argued that powering down during surface-ducting conditions 20 was impractical because they are difficult to track, a fact that the Court considered 21 (Jan. 3 Order at 17).; 22 23 24 Indeed, the Navy itself states that "[i]n order to become proficient in MFA sonar 25 use, Sailors must learn to identify when surface ducting conditions exist." Def. Op. 26 Br. at 27. Furthermore, the Navy has employed power downs under certain 27 conditions in the past. Ex. 15 at 2. The Court clarified the surface-ducting measure 28 in its Modified Order, inserting the qualifier "significant" to ensure that the balance
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1 between training and environmental protection was properly calibrated. Jan. 10

2 Order at 4. Its prescription of the requirement is supported by the record and is not
3 erroneous. 4 5
(4) Aerial monitoring The Court has ordered the Navy to provide dedicated aerial monitoring for

6 one hour before the start of sonar use and additional monitoring by participating 7 aircraft for the duration of sonar exercises. Jan. 10 Order at 3. This clarification of 8 the Court's intent plainly addresses the Navy's expressed concern that the injunction 9 would require dedicated and continuous aerial monitoring over several weeks. Jan.
10 10 Order at 3 n.2. The Navy has not challenged the efficacy of pre-exercise aerial 11 monitoring by dedicated aircraft. To the contrary, such monitoring was required by 12 the Navy and NMFS for certain exercises during RIMPAC 2006 and the tenure of 13 the 2006 NDE. 72 Fed. Reg. 38732 (measure 9); Ex. 15 at 3; see also Horowitz 14 Decl. Ex. 44 at 248 (noting the greater effectiveness of dedicated observers). As the 15 Court has repeatedly noted based on a thorough review of the evidence, the Navy's 16 current methods of detection are poor at detecting many species of marine 17 mammals. Jan. 3 Order at 8, Aug. 6 Order at 12 (citing declarations and published 18 papers); see also Horowitz Decl. Ex. 43 at 3. The Court properly found that the 19 requirement to conduct pre-exercise monitoring is both practicable and needed. 20
In sum, the carefully-considered measures set forth by this Court fulfill the

21 aims set by the Ninth Circuit and are well-supported by the record. The evidence 22 more than amply supports the Court's conclusion that these measures are both 23 practicable for the Navy to implement and effective in preventing unnecessary harm 24 to marine life. 25 26 27 28
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1

b.

The Balance of the Harms and Public Interest Favor Imposition of the Mitigation Measures that the Court Has Ordered

2 3 4

As the Ninth Circuit has acknowledged, "[t]he preservation of our

5 environment, as required by NEPA and [other environmental statutes], is clearly in 6 the public interest." Earth Island Institute v. U.S. Forest Service, 442 F.3d 1147, 7 1177 (9th Cir. 2006). Thus, for example, inNRDC v. Evans, 279 F.Supp.2d 1129, 8 1190-91 (N.D. Cal. 2003), the court acknowledged that the public has important 9 interests both in "military preparedness" and in the "survival and flourishing of
10 marine mammals and endangered species, as well as a healthy marine environment." 11 Id. at 1190-91. Balancing these interests, the court concluded that the public interest 12 favored an injunction "carefully tailored to reduce the risk to marine mammals and 13 endangered species" against the Navy's worldwide use of low-frequency sonar. Id.; 14 see alsoMakau v. Rumsfeld, 163 F.Supp.2d 1202, 1221-22 (D. Haw. 2001) (granting 15 preliminary injunction under NEPA holding that public interest favored protection of 16 species threatened by proposed military action despite countervailing claims of 17 national security). 18
In addition, "the interest in having government officials act in accordance

19 with law" in environmental cases "invokes a public interest of the highest order." 20 Seattle Audubon Soc. v. Evans, 111 F.Supp. 1081, 1096 (W.D. Wash. 1991) 21 (granting preliminary injunction), aff d, 952 F.2d 297 (9th Cir. 1991); see also Fund 22 for Animals v. Clark, 27 F.Supp.2d 8, 15 (D.D.C. 1998) (granting preliminary 23 injunction under NEPA, acknowledging public interest in "the meticulous 24 compliance with the law by public officials"). 25
In this case, the Ninth Circuit has squarely held that "the public interest would

26 be advanced by an injunction that required adequate mitigation measures." NRDC 27 v. Winter, 508 F.3d at 886. Moreover, "the balance of hardships tips in [plaintiffs'] 28 favor if a properly tailored injunction is issued providing that the Navy's operations
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1 may proceed if conducted under circumstances that provide satisfactory safeguards

2 for the protection of the environment." Id. For the reasons stated above, the 3 mitigations measures ordered by this Court are "properly tailored" in accordance 4 with the Ninth Circuit's instructions. They are practicable for the Navy to
5 implement and are needed to address the Navy's violations of law and to prevent 6 needless harm to the marine environment. As a result, the Navy cannot prevail on 7 any contention that the Mitigation Order tips the balance of the public interest or the 8 balance of the harms against injunctive relief. 9
10 11
C. Traditional Deference to the Executive Branch Regarding Matters of National Security Cannot Justify a Stay The traditional deference accorded to the executive branch regarding matters

12 of national security cannot and was never intended to insulate the executive's 13 actions from judicial review and cannot excuse the Navy from employing 14 reasonable and appropriate mitigation measures during its training exercises. See 15 San Luis Obispo, 449 F.3d at 1035 ("There is no 'national defense' exception to 16 NEPA.... The Navy, just like any federal agency, must carry out its NEPA mandate 17 to the fullest extent possible and this mandate includes weighing the environmental 18 costs of the [project] even though the project has serious national security 19 implications." (internal quotation omitted)); see also Ex. 16 (enjoining Navy's use 20 of MFA sonar during PJMPAC exercises); NRDC v. Evans, 279 F.Supp.2d 1129 21 (N.D. Cal. 2003) (enjoining Navy's worldwide use of low-frequency sonar); NRDC 22 v. Navy, 857 F.Supp. 734 (C.D. Cal. 1994) (enjoining Navy's use of underwater 23 explosives). 24
The Navy has raised national security concerns repeatedly throughout this

25 litigation: it has articulated such concerns in its briefing, and it has submitted 26 voluminous evidence and numerous classified declarations (including, improperly, a 27 new one submitted with this application) in support of its contentions. Plaintiffs, on 28 the other hand, submitted evidence demonstrating that the Navy has employed most
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1 of these same measures, as well as even more stringent measures, in similar

2 exercises in the past, and that the Navy has trained, certified, and deployed its troops 3 with such measures in place. 4
The Court reviewed and carefully considered all of the evidence before it, and

5 gave more than due deference to the Navy's national security claims in crafting its 6 Order. Indeed, the Court's Mitigation Order declined to impose many of the 7 conditions recommended by Plaintiffs and by the California Coastal Commission 8 including power-downs in low-visibility conditions and more extensive geographic 9 mitigation, despite the undisputed efficacy of such measures in preventing harm to
10 marine mammals - and instead adopted many of the Navy's proposed mitigation 11 provisions such as enhanced monitoring, which the Navy argued was easier to 12 implement than geographic exclusions. 13
But contrary to the Navy's representations, deference is not a blank check to

14 violate the law. The Ninth Circuit has repeatedly made clear that "[tjhere is no 15 'national defense' exemption to NEPA." San Luis Obispo, 449 F.3d at 1035. The 16 Navy cannot even begin to meet its burden of showing that the carefully crafted 17 Mitigation Order failed to adequately take into account and defer to the Navy's
4 18 alleged national security concerns.

19 20 21 22 23 24 25 26 guessing at agency's "subjective intent" rather than basing its decision on the objective 27 long been evidence regarding the Navy's actions). As stated above, the military ims required to comply with NEPA and numerous other environmental laws,
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The cases cited by the Navy (Br. at 14-15) do not support its broad claims. Gilligan v. Morgan, 413 U.S. 1, 5, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), for instance, expressly contradicts the Navy's position. There, in addressing a "broad call on judicial power to assume continuing regulatory jurisdiction" over a segment of the military, the Court held that "there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied. Id. at 11-12 n. 16; see also Holmes v. Cal Army Nat'I Guard, 124 F.3d 1126, 1133 (9th Cir. 1997) (holding

even though Luis Obispo, 449 28 F.3d at 1035;national security interests are involved. See, e.g., San(9th Cir. 1988). No GWENAlliance v. Aldridge, 855 F.2d 1380, 1384
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1

D.

The Equities Do Not Favor Issuance of a Stay

2

The equities do not warrant a stay under the circumstances here. As

3 discussed supra at II.B.3, this Court correctly determined (and the Ninth Circuit 4 affirmed) that the balance of harms and the public interest favor injunctive relief, 5 and the Court worked diligently to strike an appropriate balance between species 6 protection and naval readiness. The result is a carefully tailored injunction that 7 allows the Navy to go forward with its SOCAL exercises while putting safeguards 8 in place to help minimize harm to marine life. The temporary burden of having to 9 implement additional protective measures during the remaining SOCAL exercises 10 many of which the Navy has implemented in past exercises while still training and 11 certifying its troops for deployment - cannot outweigh the "near certainty" of 12 irreparable harm to the environment should the Navy be permitted to carry out its 13 exercises without proper protections. Aug. 6 Order at 19; Jan. 3 Order at 12; San 14 Luis Obispo, 449 F.3d at 1035. 15
The Navy makes essentially four arguments why the equities mandate a stay,

16 none of which has merit. First, the Navy emphasizes the importance of MFA sonar 17 training to national security and states that this Court has effectively enjoined the 18 exercises through overbroad measures, creating "the same practical effect as a 19 blanket injunction." Navy Br. at 16. But nearly every measure imposed by the 20 Court is one that the Navy has implemented before, often on its own accord. It has 21 employed a 12 nm coastal buffer zone;
-Redacted-

22 aerial monitoring; special provisions for strong surface ducting conditions; and even 23 safety zones greater than the one required here. See Ex. 15 at 1-2 (coastal zone and 24 surface ducting provisions) 25 j
-Redacted72 Fed. Reg. 38732 and Ex. 15 at 3

26 (aerial monitoring); Op. Br. at 19, Ex. 28 at 1-3, Ex. 29 at 27, and Ex. 14 at 10-11, 27 A-3 to A-l 1 (safety zone enlargements). Each of the specific measures required by 28 the Court is practicable and will reduce harm, as discussed supra at II.B.3.a.
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1

Though the employment of these measures may require adjustments to the Navy's

2 procedures, it strains credulity to believe that the Navy is incapable of training its 3 soldiers while taking these steps to protect whales and other marine life. 4
Second, the Navy argues that this Court did not give due consideration to the

5 public's interest in national defense. Navy Br. at 17. But the Ninth Circuit squarely 6 held in this case that "the public interest would be advanced by an injunction that 7 required adequate mitigation measures." NRDC v. Winter, 508 F.3d at 886. As 8 discussed above, this Court reviewed the considerable evidence submitted by the 9 parties, personally toured one of the Navy's sonar vessels, and made factual findings
10 that the public's interest in military readiness would not be unduly harmed by the 11 measures set forth in the Mitigation Order. Jan 3 Order at 12-13. Nothing more was 12 required. 13
Third, the Navy points to two statutes not at issue in the Court's ruling, the

14 MMPA and ESA, and argues in essence that the Navy's compliance with those 15 statutes weighs against an injunction for its violations of NEPA and the CZMA. 16 Navy Br. at 19-20. Putting aside the fact that the Navy "complied" with the MMPA 17 only via the issuance of a National Defense Exemption excusing it from the 18 substantive protections of the Act, and that the merits of Plaintiffs' allegations of 19 ESA violations are still to be judged, the Navy cites no precedent for the proposition 20 that violations of environmental laws can be remedied only if they are transgressed 21 in bulk. Indeed, as stated above, the Ninth Circuit has made clear that there is no 22 national defense exemption to NEPA. 23
Last, the Navy reprises its argument that the harm to Plaintiffs from the

24 SOCAL exercise as planned would be "minimal." Navy Br. at 21. But this Court's 25 repeated findings to the contrary were unequivocally affirmed by the Court of 26 Appeals, which held that Plaintiffs have demonstrated "the possibility of irreparable 27 injury if relief is not granted" and held that injunctive relief of precisely the sort 28
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1

awarded is warranted. NRDC v. Winter, 508 F.3d at 886. Harm to Plaintiffs thus The Navy's appeal to equities is particularly weak given the many

2 weighs heavily against a stay. 3 4 opportunities the Navy has had- and spurned - to bring its training exercises into 5 compliance with the law. NRDC has been advocating for enhanced mitigation of 6 the impacts of MFA sonar use from the outset in every forum available to it, and 7 the CCC itself warned the Navy a year ago that its SOCAL exercises would be 8 illegal absent meaningful additional mitigation. This Court's August 6 9 Preliminary Injunction Order, together with the Ninth Circuit's call for "an 10 injunction that require[s] adequate mitigation measures," NRDC v. Winter, 508 F.3d
11 at 886, put the Navy firmly on notice that it could not continue with business-as12 usual in these exercises. As one court observed in enjoining a naval weapons 13 testing program, any hardship that the Navy might suffer "is likely the direct 14 result of the failure to comply with [federal environmental laws]" and its "refusal 15 or inability to recognize [that failure] at an earlier date." NRDC v. Navy, 857 16 F.Supp. at 741 n.13. That the Navy failed to heed these warnings and undertake 17 the sort of planning that would have avoided the hardship it now suffers does not 18 justify a stay. The measures ordered by this Court strike an educated, evidence-based 19 20 balance between protecting marine life and allowing the Navy to go forward with 21 its training and certification of troops, thus minimizing harm to the public 22 interest. Any stay granted by this Court would have the practical effect of 23 allowing many or all of the challenged exercises to go forward unmitigated, 5 24 leaving Plaintiffs without a remedy despite the Navy's clear violations of law. 25 The injunction should therefore remain in place pending appeal. 26
Even if this Court were inclined to grant a stay 27 proposed order is unjustifiably broad in that it calls for pending appeal, the Navy's a stay of the order "pending the conclusion of any appeal. As written, this is tantamount to a vacation of the 28 injunction, since the Navy would be under no obligation to prosecute an appeal.
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1

m. CONCLUSION
For the reasons stated above, Plaintiffs respectfully request that the Court

. 2

3 deny Defendants' Ex Porte Application to stay the Court's January 3 Order Issuing 4 Preliminary Injunction, as subsequently modified by the Court's January 10 Order 5 Issuing Modified Preliminary Injunction. 6 IRELL & MANELLA LLP 7 Dated: January 11, 2008 Richard B.Kendall 8 Gregory A. Payer Josh B. Gordc 9 10 11 Dated: January 11, 2008 NATURAL RESOURCES DEFI COUNCIL, INC. 12 Joel R. Reynolds 13 Andrew E. Wetzler Cara A. Hoi 14 By:. 15 JoeOKTReynolds / ATTORNEYS FOR PLAINTIFFS 16 17 18
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19 20 21 22 23 24 25 26 27 28
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