Earthjustice and Others Challenge NMFS Regulation of Navy Sonar Activity

On January 26th, five environmental groups and an inter-tribal group representing ten Northern California American Indian tribes sued the National Marine Fisheries Services (NMFS) for violations of the Endangered Species Act and the Marine Mammal Protection Act. The complaint asserts that NMFS failed to adequately protect thousands of marine mammals off the coasts of Northern California, Oregon, and Washington by developing five-year regulations approving the Navy’s request to conduct training exercises, including mid-frequency active sonar (MFAS), in its Northwest Training Range Complex. Plaintiffs allege that the MFAS activity disrupts marine mammals’ migration, nursing, breeding, and feeding, and causes temporary hearing loss in species that depend on sound for their reproduction and survival. The 126,000 nautical square-mile area in question is the size of California, and encompasses some of the most biologically significant and productive marine areas in the world. The area is home to six endangered whale species, threatened Stellar sea lions, threatened and endangered salmon, and endangered leatherback sea turtles.

This is not the first time the Navy has asked for permission to conduct high-intensity training exercises, including MFAS, in biologically sensitive areas. In Winter v. Natural Resources Defense Council, NRDC and others sued the Navy, seeking declaratory and injunctive relieve on the grounds that its training exercises violated the National Environmental Policy Act (NEPA) by causing serious injuries to at least 37 species of marine mammals. The plaintiffs contended that the Navy should have prepared an environmental impact statement (EIS) before conducting the activity. After the District Court entered a preliminary injunction prohibiting the Navy from using MFAS during its training sessions, it sought relief from the executive branch. The Council on Environmental Quality (CEQ) subsequently authorized the Navy to implement “alternative arrangements” to NEPA compliance in light of “emergency procedures,” and the Navy continued its training under voluntary mitigation procedures. Despite the CEQ’s actions, the District Court refused to vacate the injunction, and the Ninth Circuit affirmed. On a writ of certiorari, the Supreme Court vacated the injunction, holding that the balance of equities and the public interest tipped strongly in favor of the Navy’s need to conduct realistic training. Chief Justice Roberts opened the court’s opinion with a quote by George Washington that emphasized the policy rationale underlying the holding: “To be prepared for war is one of the most effectual means of preserving peace.”

What does Winter mean for the current challenge to the NMFS regulations? Given the high value the Court in Winter assigned to the Navy’s MFAS activities (which the Court characterized as “mission-critical” because it is the only proven method of identifying certain submarines), a challenge to Navy MFAS operations seems like an uphill battle. However, here the plaintiffs do not intend to halt the Navy’s exercises, but are rather asking NMFS to reassess the permits using the latest science and order the Navy to stay out of biologically critical areas at least at certain times of the year. The complaint asserts that NMFS failed to adequately analyze the aggregate effects and harm that could result to the species during the five-year period, merely repeating the Navy’s estimates of the annual take of mammals (in the form of harassment) from MFAS. Furthermore, NMFS arbitrarily rejected designation of certain biologically important coastal areas as exclusion zones that would be either wholly or seasonally off-limits to training exercises in order to protect marine mammals and their habitat. California Congressman Mike issued a statement in support of the lawsuit, agreeing that “the Navy should train in a way that respects local communities, natural resources and our environment – and the National Marine Fisheries Service should be the agency that ensures those protections.”

Written by Ingrid Seggerman, GIELR staff member.