Defenders of Wildlife et al v. United States Department of the Navy et al
Filing
87
ORDER denying 73 Plaintiffs' Motion for Summary Judgment and granting 76 Defendants' Motion for Summary Judgment. The Clerk of Court is instructed to close this case and enter an appropriate judgment. Signed by Chief Judge Lisa G. Wood on 9/6/2012. (csr)
L E C)
T
Sn the 111titeb Otatto Motrict Court
for the Lioutijern J)Istrttt of ga6 P1 3: 3
ufrjjjj
'D F G A.
DEFENDERS OF WILDLIFE,
THE HUMANE SOCIETY OF THE
UNITED STATES, WHALE AND DOLPHIN
CONSERVATION SOCIETY, NATURAL
RESOURCES DEFENSE COUNCIL,
CENTER FOR A SUSTAINABLE COAST,
FLORIDA WILDLIFE FEDERATION,
SOUTH CAROLINA COASTAL
CONSERVATION LEAGUE, NORTH
CAROLINA WILDLIFE FEDERATION,
ANIMAL WELFARE INSTITUTE,
OCEAN MAMMAL INSTITUTE, CITIZENS
OPPOSING ACTIVE SONAR THREATS,
and CETACEAN SOCIETY
INTERNATIONAL.
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Plaintiffs,
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VS.
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UNITED STATES DEPARTMENT OF THE *
NAVY, RAY MABUS, SECRETARY OF *
THE NAVY, NATIONAL OCEANIC AND *
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ATMOSPHERIC ADMINISTRATION,
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NATIONAL MARINE FISHERIES
SERVICE, and GARY LOCKE, SECRETARY *
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OF COMMERCE.
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Defendants.
CV 210-014
ORDER
Presently before the Court are Cross-Notions for Summary
Judgment filed by the Plaintiffs and the Defendants in this
action. See Dkt. Nos. 73, 76. Upon due consideration,
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Defendants' Motion for Summary Judgment is GRANTED, and
Plaintiffs' Motion for Summary Judgment is DENIED.
INTRODUCTION
This action is predicated on alleged violations by one or
more of the Defendants under the National Environmental Policy
Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., the Endangered
Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the
Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706.
Plaintiffs are twelve environmental groups l who challenge the
United States Department of Navy's ("Navy") decision to install
an Undersea Warfare Training Range ("USWTR") off the coast of
Jacksonville, Florida. At the heart of this dispute is the fact
that the USWTR is to be located offshore of federally-designated
critical habitat and adjacent to the only known calving grounds
of the highly endangered North Atlantic right whale.
FACTUAL BACKGROUND
The USWTR's stated purpose is to enable the Navy to train
effectively in a shallow water environment at a suitable
location for Atlantic Fleet anti-submarine warfare ("ASW")
1 The environmental groups are Defenders of Wildlife, The Humane Society of
the United States, Whale and Dolphin Conservation Society, Natural Resources
Defense Council, Center for Sustainable Coast, Florida Wildlife Federation,
South Carolina Coastal Conservation League, North Carolina Wildlife
Federation, Animal Welfare Institute, Ocean Mammal Institute, Citizens
Opposing Active Sonar Threats, and the Cetacean Society International.
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capable units. DON181854. 2 It will enhance the Navy's ASW
training exercises by providing real-time feedback to the units
engaged in those training activities. Dkt. No. 76 at 6. With
this purpose in mind, the Navy has been planning the development
of the USWTR for well over a decade.
On May 13, 1996, the Navy first, published its Notice of
Intent to prepare an environmental impact statement ("EIS") for
an undersea warfare range somewhere along the east coast. Dkt.
No. 73 at 3. The four alternative sites originally considered
were the Gulf of Maine, Wallops Island, Virginia, off the coast
of North Carolina, and offshore of Charleston, South Carolina.
Dkt. No. 73 at 3. In 2005, the Navy released a draft EIS
("DEIS") proposing to locate the USWTR off the coast of North
Carolina. Id. However, in September 2008, the Navy changed
course and released a new DEIS changing the preferred
alternative from North Carolina to the present site offshore of
the Georgia/Florida border. Id.
On June 26, 2009, after evaluating public comments on its
revised DEIS, the Navy issued a Final EIS ("FEIS") for the
installation and the operation of the USWTR at the preferred
site in the Jacksonville Operating Area. DON181852. The Navy
also prepared a Biological Assessment and initiated formal
consultation with the National Marine Fisheries Service ("NMFS")
2 "DON" refers to the Navy's Administrative Record for its Record of
Decision.
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pursuant to the ESA. D0N160498; D0N185886. The NMFS's
Biological Opinion followed on July 28, 2009. NMFS AR 1731.
Finally, on July 31, 2009, the Navy issued its Record of
Decision ("ROD") approving construction of the tJSWTR at the
preferred site within the Jacksonville Operating Area.
DON185885. Construction is expected to take at least five years
to complete. Id.
The Navy has conducted ASW training in the Jacksonville
Operating Area for over sixty (60) years. D0N185892. The
current plan is to construct the USWTR within this Jacksonville
Operating Area. Dkt. No. 76 at 6. Construction of the USWTR
will involve the placement of undersea cables and transducer
nodes in a 500-sqaure-nautical-mile area of the ocean.
D0N181854. Transducer nodes are acoustic devices that transmit
and receive acoustic signals from ships and submarines operating
within the tJSWTR, which allows the position of participants to
be determined and stored electronically for both real-time and
future evaluation. D0N181857. This instrumented area would then
be connected to the shore via a single trunk cable. D0N181854.
According to the Navy, this construction has not yet commenced,
and will be completed no sooner than 2014. Dkt. No. 76 at 7
(citing DON185885)
3 "NMFS AR " refers to the NMFS's Administrative Record for its Biological
Opinion.
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The parties dispute the scope of the tJSWTR. The Navy
argues that the USWTR will be constructed in a relatively small
portion of the Navy's existing Jacksonville Operating Area. Dkt.
No. 76 at 1. According to the Navy's Record of Decision:
"Submarines, ships and aircraft all currently conduct ASW
training in the JAX OPAREA and will be the principal users of
the USWTR." D0N185886. The Navy, therefore, argues that the
tJSWTR is "not expected to cause any significant change to
training already occurring in the area." Dkt. No. 76 at 1.
Plaintiffs, in contrast, argue that the Navy's characterization
of the proposed action is not accurate, as the entire point of
the USWTR is to concentrate intensive ASW exercises from the
vast Jacksonville Operating Area (spanning tens of thousands of
square miles) into the USWTR instrumented area. Dkt. No. 80 at
2. Plaintiffs also point out that, unlike the rest of the
Jacksonville Operating Area, the USWTR would involve the
installation outlined above. Id. at 3.
What is not in dispute is that the USWTR is to be
constructed adjacent to the calving grounds of the North
Atlantic right whale, which is "the world's most critically
endangered large whale species and one of the world's most
endangered mammals." D0N154895. The Southeastern United States
is the only known calving ground for North Atlantic right whales
and is, therefore, vital to the population. D0N144853. Despite
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protection from commercial whaling since 1935, the remaining
population has failed to fully recover. DON154895. The best
current estimate of minimum population is 313 whales. Id.
(citing Waring et al., 2007). Due to this fragile status, and
"[b]ecause of the species' low reproduction level and small
population size, even low levels of human-caused mortality can
pose a significant obstacle for North Atlantic right whale
recovery." Id.
Plaintiffs' legal attack on the Navy occupies many fronts;
but, at its core, Plaintiffs argue that the Navy has failed to
adequately analyze the potential environmental impact the
proposed USWTR will have on right whales and other protected
species. Much of Plaintiffs' allegations against the Navy stems
from Plaintiffs' belief that the Navy has recommended the
Jacksonville site for the USWTR without analyzing both the
installation and operation phases of the action. Dkt. No. 73.
While Plaintiffs certainly argue that the Navy's installation
analysis was flawed, the heart of Plaintiffs' allegations is
that the Navy has committed to this site without analyzing the
operations phase of the project. Id.
Specifically, Plaintiffs contend that the Navy selected the
Jacksonville site without the surveys necessary to assess
densities for marine mammals, including the densities of right
whales in the area. Dkt. No. 73 at 4. In this regard,
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Plaintiffs note that right whale scientists and the Georgia
Department of Natural Resources have expressed concerns with the
Navy's plans to go forward without such information. Id. at 4-5.
In a similar vein, Plaintiffs charge the Navy with segmenting
its analysis by only conducting such research after it released
its FEIS selecting Jacksonville as its preferred alternative.
Id. at 5. The Navy, for its part, disputes this contention and
maintains that it conducted the appropriate analysis required
under federal law.
Plaintiffs' argument of unlawful segmentation also applies
to the Navy's ROD, where the Navy only authorizes the
installation phase of the USWTR. Plaintiffs maintain that the
ROD has the practical effect of approving the $100 million
dollar construction of the range, while delaying an analysis
over its use. Dkt. No. 73 at 7. The Navy responds that these
segmentation allegations are unfounded, as the FEIS and ROD both
fully analyzed the operations and installation phases of the
USWTR. The Navy also points out that the ROD does not approve
the operations component because of timing considerations, not
due to a lack of analysis.4
The Navy claims that it deferred any decision to implement training on the
tJSWTR because of the need to first obtain Marine Mammal Protection Act
("MMPA") take regulations from the NMFS, which are subject to a five-year
time limit. Dkt. No. 76 at 9 (citing D0N185885) . Therefore, according to the
Navy, had it sought to obtain MML'A take regulations covering tJSWTR operations
in 2009, they would expire before operations commenced. Id.
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As for the NMFS, Plaintiffs argue that it was derelict of
its agency responsibilities. Specifically, Plaintiffs argue
that the 2009 Biological Opinion issued by the NMFS is legally
deficient. Dkt. No. 73 at 7. This allegation is based on
Plaintiffs' belief that the NMFS's analysis of the tJSWTR was
incomplete and that it irrationally makes findings not supported
by-the facts before the agency. Id.
In accordance with Plaintiffs' contention that Defendants
are acting in violation of the ESA, NEPA, and APA, they brought
suit in this Court on January 28, 2010. Dkt. No. 1. Plaintiffs'
Original Complaint was followed shortly thereafter with an
Amended Complaint. Dkt. No. 24. In this Amended Complaint,
Plaintiffs ask the Court to, among other things, (1) declare
that the Navy Defendants have violated both NEPA and the ESA,
(2) declare that the NMFS Defendants have violated the APA and
ESA, (3) vacate the Navy's FEIS and ROD, (4) vacate the NMFS's
Biological Opinion, and (5) remand the FEIS, ROD, and Biological
Opinions for further preparation. Dkt. No. 24 at 55. On August
22, 2011, Plaintiffs moved for summary judgment as to all of its
claims. Dkt. No. 73. On October 6, 2011, Defendants filed a
cross-motion for summary judgment opposing Plaintiffs' motion
and seeking summary judgment on Defendants behalf. Dkt. No. 76.
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LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Id. A fact
is "material" if it "might affect the outcome of the suit under
the governing law." FindWhat Investor Grp. v. FindWhat.com , 658
F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Libert
Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over such a
fact is "genuine" if the "evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. In
making this determination, the court is to view all of the
evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. Johnson v.
Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th
Cir. 2000) . Where, as here, cross-motions for summary judgment
have been filed, the court must consider each motion on its own
merits, resolving all reasonable inferences against the party
whose motion is under consideration. Sun Life Assur. Co. of
Canada (U.S.) v. Williams, 2008 WL 762204, at *5 (M.D. Ga. Mar.
18, 2008) (citing Am. Bankers Ins G
v. United States, 408
F.3d 1328, 1331 (11th Cir. 2005))
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
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satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
257 (1986)
STANDARD OF REVIEW
Judicial review of the agency actions at issue, both under
NEPA5 and the ESA, 6 are governed by the Administrative Procedure
Act, 5 U.S.C. § 706. The APA.provides that a court shall "set
aside agency action, findings, and conclusions found to be
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." Id. at § 706(2) (A) . The arbitrary and
capricious standard is "exceedingly deferential." Fund for
Animals, Inc. v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). In
fact, even in the context of summary judgment, an agency action
is entitled to great deference. Pres. Endangered Areas of Cobb's
See Little Lagoon Pres. Soc'y, Inc. v. U.S. Army Corps of Sng'rs, 2008 wL
4080216, at *15 (S.D. Ala. Aug. 29, 2008) ("[T]he determination of whether
the [agency] fulfilled its NEPA obligations must be examined though the lens
of the Administrative Procedure Act . . .
See Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257,
1264 (11th dr. 2009) ("Biclogical opinions are final agency actions subject
to judicial review under the Administrative Procedure Act." (internal
citation omitted))
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History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246
(11th Cir. 1996)
The Court is not authorized to substitute its judgment for
the agency's so long as the agency's conclusions are rational.
Mjccosukee Tribe of Indians of Florida v. United States, 566
F.3d 1257, 1264 (11th Cir. 2009) . Instead, "[t]he Court's role
is to ensure that the agency came to a rational conclusion, 'not
to conduct its own investigation.'" Sierra Club v. Van Antwerp,
526 F.3d 1353, 1360 (11th Cir. 2008) (quoting Pres. Endangered
Areas of Cobb's History, 87 F.3d at 1246)
However, an agency action may be found arbitrary and
capricious:
where the agency has relied on factors which Congress
has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered
an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view
or the product of agency expertise.
Miccosukee Tribe of Indians, 566 F.3d at 1264 (quoting AlabamaTombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th
Cir. 2007)).
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DISCUSSION
A. The National Environmental Polic y Act of 1969
NEPA is the "basic national charter for protection of the
environment." 40 C.F.R. § 1500.1(a). Its procedures ensure that
environmental information is available to public officials and
citizens before decisions are made and before actions are taken.
Id. at § 1500.1(b); see also Wilderness Watch and Pub. Em p , for
Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1094 (11th
Cir. 2004) ("NEPA essentially forces federal agencies to
document the potential environmental impacts of significant
decisions before they are made, thereby ensuring that
environmental issues are considered by the agency and that
important information is made available to the large audience
that may help to make the decision or will be affected by it.")
NEPA's requirements are procedural and are designed to ensure
that .an agency adequately assesses the environmental impacts of
actions they undertake. City of Oxford, Ga. v. Fed. Aviation
Admin., 428 F.3d 1346, 1352 (11th Cir. 2005); see also Dep't of
Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004) ("NEPA
imposes only procedural requirements on federal agencies with a
particular focus on requiring agencies to undertake analyses of
the environmental impact of their proposals and actions.")
Accordingly, "NEPA itself does not mandate particular results."
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008)
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(quoting Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 350 (1989)
The mechanism implemented under NEPA to ensure that
environmental information is available is the requirment that a
federal agency prepare an EIS if that agency proposes "a major
Federal action[] significantly affecting the quality of the
human environment." 42 U.S.C. § 4332(C). The first step in the
515 process is determining whether it is necessary. 7 Here, this
step is not in dispute, as the Navy did indeed prepare an ElS.
D0N181852-182848.
The EIS "shall provide full and fair discussion of
significant environmental impacts" of a proposed action. 40
C.F.R. § 1502.1. The EIS does so by identifying the direct,
indirect, and cumulative impacts of the proposed action,8
including an analysis of alternatives of the proposed action, 42
U.S.C. § 4332 (C) (iii), and a discussion of means to mitigate
adverse environmental impacts. 40 C.F.R. § 1502.16(h). Even
In determining whether an EIS is necessary, the agency must first surmise
whether the proposal is one which: (1) Normally requires an EIS; or (2)
Normally does not require either an environmental impact statement or an
environmental assessment (categorical exclusion). 40 C.F.R. § 1501.4(a). If
not covered by the proceeding section, the agency must prepare an
environmental assessment (40 C.F.R. § 1508.9). Id. § 1501.4(b). Based on the
environmental assessment, a determination is then made as to whether an EIS
is needed. Id. § 1501.4(c).
8
Direct effects are those which are caused by the action and occur at the
same time and place. Indirect effects are those which are caused by the
action and are later in time or farther removed in distance but are still
reasonably foreseeable. Id. § 1508.8(a)-(b). Cumulative impacts are impacts
from "past, present and reasonably foreseeable future actions regardless of
what agency (Federal or non-Federal) or person undertakes such other
actions." Id. § 1508.7.
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though • the agency's decision is entitled to deference, the Court
must ensure that the agency took a "hard look" at the
environmental consequences of the proposed action. Sierra Club
v. U.S. Army Corps of Eng'rs, 295 F.3c1 1209, 1216 (11th Cir.
2002). In determining whether an agency has complied with NEPA,
the reviewing court's only role "is to insure that the agency
has considered the environmental consequences; it cannot
interject itself within the area of discretion of the
executive." Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547
(11th Cir. 1996) (internal citations omitted)
Plaintiffs argue that the Navy has failed to comply with
NEPA in four ways: (1) by failing to comply with 40 C.F.R. §
1502.22; (2) by unlawfully segmenting its analyses, through
deferring analysis of USWTR's operation until after the
construction was authorized; (3) by failing to take a "hard
look" at the potential impacts that the proposed action will
have on the North Atlantic right whàle, manatees, and sea
turtles; and (4) by including a mitigation analysis that is
arbitrary and capricious. The Court addresses each argument
below.
a. Compliance with 40 C.F.R. § 150222
The Code of Federal Regulations provides that when an
"agency is evaluating reasonably foreseeable significant adverse
effects on the human environment in an environmental impact
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statement and there is incomplete or unavailable information,
the agency shall always make clear that such information is
lacking." 40 C.F.R. § 1502.22. Further, "[i]f the incomplete
information relevant to reasonably foreseeable significant
adverse impacts is essential to a reasoned choice among
alternatives and the overall costs of obtaining it are not
exorbitant, the agency shall include the information in the
environmental impact statement." Id. § 1502.22(a).
Plaintiffs allege that the Navy has violated 40 C.F.R. §
1502.22(a) by failing to obtain information essential to a
reasoned choice among alternative locations for the USWTR. Dkt.
No. 80 at 3. Specifically, Plaintiffs contend that the Navy
failed to obtain essential baseline data on marine mammal
populations and bottom habitat in the USWTR area prior to
issuing its FEIS. Dkt. No. 73 at 10. Instead, Plaintiffs insist
that the Navy only began to gather such information for the
Jacksonville location in February and June 2009, leaving no time
for this information to be considered by decision-makers or
reviewed by the public before making a final decision on the
location of the USWTR. Id.
In response, the Navy, argues that it gathered and analyzed
sufficient baseline information for marine mammal density and
bottom habitat and, only after considering that information,
made its final decision to locate the USWTR in the Jacksonville
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Operating Area. Dkt. No. 82 at 6. Further, the Navy argues that
references made in the record noting the need for further
studies do not mean that no baseline data previously existed or
that the information previously relied upon was somehow
insufficient to support the agency's decision. Id. Stated
differently, the Navy asserts that the "mere fact that the Navy
intends to do more comprehensive research in the future does not
render the analysis in the EIS arbitrary or capricious." Id. at
8. The Navy does not argue that information related to baseline
data on marine mammal populations and bottom habitat is not
essential. Rather, the Navy submits that the information that
it relied on was not incomplete or unavailable. Id. at 6.
Therefore, the Court will turn to the record and discern what
the Navy relied upon and determine whether that information was
incomplete.
Plaintiffs' contention that the Navy illegally deferred
required analysis of baseline data on marine mammal populations
and bottom habitat is based upon statements made by the Navy at
various points within the record that indicate the Navy's plan
to conduct further analysis. For example, in its FEIS the Navy
responds to concerns about the proximity of the USWTR to right
whale critical habitat and breeding grounds by noting that:
Site A range is far offshore from recognized right
whale critical habitat. The Navy will be implementing
mitigation measures as stated in Chapter 6. The Navy
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initiated a program in the spring of 2009 that is
monitoring marine mammals at the Jacksonville USWTR
site. Through the Navy's marine mammal monitoring
program, we will be able to establish baseline
occurrence information.
D0N183390; see also DON183350 (in responding to concerns that
the DEIS does not include mitigation for impacts to benthic
habitats, the Navy responds by stating: "The Navy is conducting
bottom mapping surveys at the Jacksonville site. Data can be
used to characterize potential biological habitats and hard
bottom."); D0N185885 (commenting within the summary of the ROD
reasoning that "[b]ecause operation of the USWTR is not
anticipated to occur until at least 2014, the analysis regarding
the environmental effects from training on the USWTR in the
Final Overseas Environmental Impact Statement/Environmental
Impact Statement (OEIS/EIS), will be updated in a future
OEIS/EIS closer in time to the date when the training will
begin")
The Navy's plans to conduct further studies do not
necessarily establish that it failed to comply with 40 C.F.R. §
1502.22. Indeed, the Court is aware of no authority within this
Circuit that dictates that the Navy would be required to
independently gather such baseline data under NEPA at all. As
the Navy correctly points out, courts in other jurisdictions
have found compliance with NEPA in instances of unknown baseline
data, Gaule v. Meade, 402 F. Supp. 2d 1078, 1089 (D. Alaska
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lk
2005), and in instances, such as this one, where the agency
relies on previous studies for its baseline analysis. Theodore
Roosevelt Conservation P'ship v. Salazar, 605 F. Supp. 2d 263,
281 (D.D.C. 2009), aff'd, 616 F.3d 497 (D.C. Cir. 2010).
Furthermore, acknowledgement on the part of the Navy that
further studies would be useful does not indicate a violation of
NEPA. See Churchill Cnty, v. Norton, 276 F.3d 1060, 1082 (9th
Cir. 2001) (""[Though ajdditional studies undoubtedly would fill
in relevant details regarding groundwater resources under each
of the action alternatives[,] .
. the Service relied on
current information, not outdated studies or technology.")
The issue presently in dispute is whether data on marine
mammal populations and bottom habitat was "essential to a
reasoned choice among alternatives" and whether that information
was incomplete or unavailable. 40 C.F.R. § 1502.22(a). This
issue does not turn on what the Navy does in the future, but
rather, on what the Navy consulted in preparing its FEIS.
With regards to the marine mammal density data, the Navy
consulted the Navy OPAREA Density Estimates ("NODE") for the
Southeast OPAREAs: VACAPES, CHPT, JAX/CHASN, and Southeastern
Florida & Autec-Andros, D0N121653, which notes "density
estimates are needed to assist in the determination of the
potential impacts of military operations to marine mammal and
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sea turtle species." 9
Accordingly, the stated goal of the NODE
is to "provide a compilation of the most recent data and
information on the occurrence, distribution, and density of
marine mammals and sea turtles in this area. " 10 Notably, NODE
specifically includes density estimates for various marine
mammals, including the North Atláhtic right whale. See, eg.,
D0N121711-D0N121722 (providing Atlantic density surface of the
North Atlantic right whale for various months of the year based
upon Southeast Marine Resource Assessment polygons). The Navy
also specifically cites numerous reports within the FEIS
concerning marine mammal density. See D0N182006; D0N182088; see
also D0N182655 (producing Table 6-2 depicting a range of
estimates for marine mammal species - including the right whale
- found in the tJSWTR study area in reliance on Palka, 2006; Ham
et al., 1999; and Palka, 2005b).
Turning to the bottom habitat surveys, the Navy also points
to specific provisions in the record which it analyzed and
relied on in producing the FEIS. See, e.g., D0N182044-182045
(discussing sea bottom habitat); see also D0N182 699 (referencing
"2001 Distribution of Bottom Habitats on the Continental Shelf
The NODE specifically lists the North Atlantic right whale as one of the
species where survey data existed. DON121688.
10
The study area ranges from the U.S./Canada border and is bounded to the
south by the territorial waters of Cuba and to the west by the Key West
Complex. The Narragansett Bay, Atlantic City, VACAPES, CHPT, and JAX/CHASN
OPAREAs, as well as southeastern Florida, are all located within this region.
DON167266.
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from North Carolina to the Florida Keys, Washington D.C.: SEANAP
Bottom Mapping Project"); D0N182827 (referencing "Wenner E.L.,
P. Hinde, D.M. Knott, and R.F. Van Dolah, 1984, A temporal and
spatial study of invertebrate communities associated with
hardbottom habitats in the South Atlantic Bight. Seattle,
Washington, National Marine Fisheries Service. NOAA Technical
Report NMFS 18: 1-106") . Moreover, the Navy specifically
discussed the hard bottom data internally in an attempt to
ensure that the EIS used a more recent form of the SEAMAP data.
D0N123536-37.
As is made clear from the record, the Navy analyzed marine
mammal densities and bottom habitat surveys in forming the FEIS.
That the Navy plans to conduct further thorough studies in the
future in no way vitiates this prior analysis. To decide
otherwise would provide a disincentive for agencies who wish to
go beyond what is required under NEPA. Therefore, the Court is
satisfied that the Navy did not have "incomplete" or
"unavailable" information with regards to marine mammal
densities and bottom habitat surveys. As a result, the
strictures of 40 C.F.R. § 1502.22 were not prompted, and the
Navy was not required to make clear that such information was
lacking.
.0 72A
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20
b. Segmentation
Actions that are closely related are deemed connected and
should be discussed in the same EIS. 40 C.F.R. § 1508.25(a) (1) ."
In determining the proper scope of an EIS, "courts have
considered such factors as whether the proposed segment (1) has
logical termini, (2) has substantial independent utility, (3)
does not foreclose the opportunity to consider alternatives, and
(4) does not irretrievably commit federal funds for closely
related projects." Piedmont Heights Civic Club, Inc. v.
Moreland, 637 F.2d 430, 439 (5th Cir. 1981) •12 Stated
differently, if "proceeding with one project will, because of
functional or economic dependence, foreclose options or
irretrievably commit resources to future projects, the
environmental consequences of the projects should be evaluated
together." O'Reilly v. U.S. Army Corp of Eg'rs, 477 F.3d 225,
236 (5th Cir. 2007). This requirement is in place so that
agencies "may not evade their responsibilities under NEPA by
artificially dividing a major federal action into smaller
I
components, each without a significant impact." Pres. Endangered
" "Actions are connected if they: (1) Automatically trigger other actions
which may require environmental impact statements; (ii) Cannot or will not
proceed unless other actions are taken previously or simultaneously; (iii)
Are interdependent parts of a larger action and depend on the larger action
for their justification." 40 C.F.R. § 1500.25(a) (1) (i)-(iii)
12 1n Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the
former Fifth Circuit handed down before the close of business on September
30, 1981.
O 72A
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21
I
Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 916
F. Supp. 1557, 1562 (N.D. Ga. 1995) (quoting Coal. of Sensible
Tran p., Inc.
V.
Dole, 826 F.2d 60, 68 (D.C. Cir. 1987)).
The parties' argument over segmentation in this case
is unique. In most instances the disputed issue is whether
actions are related and, therefore, must be analyzed in the
same EIS. See, e.g., Pres. Endangered Areas of Cobb's
Histor y , Inc. v. U.S. Army Corp s of Ena'rs, 87 F.3d 1242
(11th Cir. 1996). Here, there is no dispute that the
installation and operation components of the USWTR are to
be discussed. in the same EIS. Rather, the contested issue
is whether the Navy did, in fact, analyze the operations
component of the USWTR. In this sense, there is no real
dispute as to the connectedness of the operation and
installation components of the project. Instead,
Plaintiffs' true argument is that the Navy did not
adequately analyze the operations component of the USWTR.
Plaintiffs argue that, by deferring analysis of USWTR's
operation until after the construction was authorized, the Navy
has unlawfully segmented its analysis. Dkt. No. 73 at 15. In
essence, Plaintiffs contend that the Navy has attempted to
obtain authorization of the construction of the USWTR without
properly examining the operations to be performed there.
1O 72A
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I
The Navy denies this contention, maintaining that in
preparing the USWTR FEIS, the Navy fully analyzed the impacts of
both construction and operation of the planned range. Dkt. No.
76 at 15. The Navy further asserts that it postponed a final
decision to authorize the operations phase of the USWTR to avoid
wasting resources by securing authorization under the Marine
Mammal Protection Act ("MMPA") that would expire before the
covered operations commenced. Dkt. No. 82 at 3. In short, the
Navy admits that the construction and operation components are
connected actions, and it maintains that both were analyzed in
the USWTR FEIS.
Plaintiffs contend that the Navy violated 40 C.F.R. §
1508.25(a) by failing to consider the environmental impacts of
the operations component of the project. Dkt No. 73 at 15. The
Navy is quick to point out, however, that the USWTR FEIS was
prepared "to assess the potential effects of installing and
operating a USWTR offshore of the east coast of the United
States." DON18156 (emphasis added); see also DON185885
(ROD)(noting that the Navy has "carefully wei.gh[ed] the
environmental consequences of the installation and operation of
the proposed action"); DON185886 (ROD) (stating that "both the
installation phase and training phase of the USWTR are fully
analyzed in the [FEIS]"). However, this assertion is perhaps
undermined by the Navy's plans to create another EIS with
72A
8182)
l I
23
regards to the operations component of the proposed action. See
D0N185885 (noting that "[t]he decision to implement training on
USWTR will be based on the updated analysis of environmental
effects in a future OEIS/EIS")
In response to Plaintiffs' labeling its future EIS plans as
evidence of segmenting, the Navy retorts that the "additional
NEPA analysis [that] will occur in connection with the decision
to authorize training on the USWTR is of no moment, because that
analysis will focus on alternative training and testing
scenarios, including tempo of activities - not on the location
of the range." Dkt. No, 82 at 4. Further, the Navy adds that it
has no obligation to revisit or reanalyze its decision as to the
USWTR's location. Id.
After carefully considering the parties' respective
contentions, the Court is satisfied that the Navy did not
segment its analysis of the USWTR. Section 1508.25(a) of the
Code of Federal Regulations requires that connected actions "be
discussed in the same impact statement." This provision,
however, does not mandate that all connected actions be approved
in the same ROD, as Plaintiffs' argument suggests. Rather, this
provision requires that an agency study impacts of the entire
project at the same time. See Stewart Park and Reserve Coal.
Inc. (SPARC) v. Slater, 352 F.3d 545, 559 (2d Cir. 2003)
("Segmentation is an attempt to circumvent NEPA by breaking up
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one project into smaller projects and not studying the overall
impacts of the single overall project."). The Navy's FEIS
analyzed both the installation and operation phases of the
USWTR, and, therefore, it did not unlawfully segment the
proposed action's analysis. As a result, the real question is
whether the Navy provided inadequate analysis for the operations
component of the USWTR. This issue will be fully addressed
throughout the course of this Order as it pertains to
Plaintiffs' specific legal challenges under NEPA and the EPA.
Further, the Navy did not violate 40 C.F.R. § 1506.1(a) as
Plaintiffs suggest. 13 This is because the Navy did not commit
itself to the Jacksonville Operating Area until after assessing
the environmental impacts of the installation and operation
components of the USWTR, in accordance with NEPA. The authority
cited by Plaintiffs on this point is not persuasive, as each of
those cases involved the commitment of resources prior to
environmental analysis. See, e.g., Metcalf
V.
Daley, 214 F.3d
1135, 1144-45 (9th Cir. 2000) (finding that an agency had
violated NEPA by signing two binding contracts before preparing
the environmental assessment); Save the Yaak Comm. v. Block, 840
134Q
C.F.R. § 1506.1(a) provides that:
a) Until an agency issues a record of decision as provided in §
1505.2 (except as provided in paragraph (c) of this section), no
action concerning the proposal shall be taken which would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
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I
F.2d 714, 718 (9th Cir. 1988) (holding that the agency had
violated.NEPA because "[i]n this case, the reconstruction
contracts were awarded prior to preparation of the
[environmental assessments]") . In contrast, here the Navy did
not commit to the Jacksonville Operating area until after such
analysis was completed. Accordingly, the Court is satisfied
that the Navy did not unlawfully segment its analysis, as the
FEIS considered both the installation and operations phases of
the USWTR. As to whether this analysis is adequate, the Court
will address that argument in relation to the specific
deficiencies alleged.
c. Hard Look
"An agency has met its 'hard look' requirement if it has
'examined the relevant data and articulated a satisfactory
explanation for its action including a rational connection
between the facts found and the choice made.'" Sierra Club v.
U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir. 2002)
.
(quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). In this
context, the Court is duty-bound to ensure that the agency took
a hard look at the environmental consequences of the proposed
action. Nat'l Parks Conservation Ass'n, Inc. v. U.S. Arm y CorDs
of Eng'rs, 446 F. Supp. 2d 1322, 1336 (S.D. Fla. 2006) (citing
North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1541 (11th
72
W
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II
II
26
Cir. 1990)). However, it is not required that the agency reach
the same conclusion that the reviewing court would reach.
Instead, the agency "must merely have reached a conclusion that
rests on a rational basis." City of Oxford, Ga. v. Fed. Aviation
Admin., 428 F.3d 1346, 1352 (11th Cir. 2005). The Court is not
to "fly speck" the Navy's EIS but is instead to be guided by a
"rule of reason." Citizens for Mass Transit, Inc. v. Adams, 630
F.2d 309, 313 (5th Cir. 1980) . In this light, a reviewing court
may overturn an agency's decision only if:
(1) the decision does not rely on the factors that
Congress intended the agency to consider; (2) the
agency failed entirely to consider an important aspect
of the problem; (3) the agency offers an explanation
which runs counter to the evidence; or (4) the
decision is so implausible that it cannot be the
result of differing viewpoints or the result of agency
expertise.
City of Oxford, 428 F.3d at 1352 (citing Sierra Club v. U.S.
Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir. 2002.)).
Plaintiffs assert that the Navy failed to take a "hard
look" and adequately consider the risks for (1) North
Atlantic right whales and other marine mammals, (2) sea
turtles, and (3) manatees. For the reasons set forth
below, the Court finds that the Navy's decision regarding
the environmental impacts to these three groups was not
"arbitrary, capricious, or an abuse of discretion," and
therefore, the Court declines to substitute its judgment
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for that of the Navy. Pres. Endangered Areas of Cobb's
History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242,
1246 (11th Cir. 1996)
i.
Right Whales
Plaintiffs first argue that the Navy failed to adequately
consider the risks that the USWTR posed to the North Atlantic
right whale. Dkt. No. 73 at 18. Plaintiffs point out that
mothers and their calves are primary occupants of the critical
habitat in Georgia and Florida and that these occupants are the
species most vulnerable and important segments of the
population. Id. Additionally, while Plaintiffs acknowledge the
FEIS's recognition that the right whale is among the world's
most endangered species, Plaintiffs' argue it simply does not
adequately address the risks the USWTR poses to the species. Id.
Specifically, Plaintiffs argue that the Navy failed to
adequately consider risks posed by ship strikes, entanglement in
discarded debris, and the impact of sonar operations. Id. The
Navy disputes these allegations.
1 Ship Strikes
As Plaintiffs point out, ship strikes are the greatest
source of mortality for right whales. Dkt. No. 73 at 18 (citing
NNFS AR 1789) . The effects are intensified because a
disproportionate number of ship strike victims are female right
whales. Id. (citing D0N154896)
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This threat undoubtedly has
28
severe environmental consequences because, as previously noted,
the right whale is "the world's most critically endangered large
whale species and one of the world's most endangered species."
Id. at 3 (citing D0N154895)
Although the risk is considerable, the Navy performed
extensive analysis regarding the risks posed to the right whales
by ship strikes. In doing so, the Navy found that ship strikes
are an issue of concern for the right whale, D0N182360 (citing
MMC 2008; Nelson et al., 2007), specifically with regards to
potential stranding, avoidance behavior, changes in dive
patterns, and fatalities. Dkt. No. 76 at 18 (citing D0N18235860) . In short, the Navy was fully apprised of the dangers that
ship strikes pose to the right whale.
In considering the magnitude of the threat of ship strikes
on right whales, the Navy reviewed the historical record of ship
strikes by the Navy during Navy operations in the Jacksonville
Operating Area. IJkt. No. 82 at 11. Based on this record, the
Navy submits that in its sixty (60) year history of training in
the area, there has not been one instance of a Navy vessel
striking a whale. Id. (citing D0N080034). The historical record
also indicates that the Navy has already placed protective
measures into practice to avoid harming the right whale. Such
protective measures have been in place since 1997 and include
the funding of an Early Warning System ("EWS") to provide daily
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aerial surveillance flights during calving season. 14 Dkt. No. 76
at 19. Since the onset of the EWS, the Navy has transited
through right whale critical habitat without incident. Id.
Additionally, in 2004, the Navy and the NMFS coordinated to
identify seasonal right whale "occurrence patterns." DON182360.
As a result of this effort, the Navy has identified areas where
its guidance "calls for extreme caution and operation at a slow,
safe speed" at specified coastal and port reference points. 15 Id.
To compliment the efforts discussed above, the Navy has
outlined protective measures for the critical habitat itself.
Notably, these protective measures are "tailored according to
the temporal and spatial distribution of right whales at each
location." DON182360. For the Southeast these measures include
(1) an annual message sent to all ships prior to the calving
season, (2) moving through the critical habitat in the most
direct manner possible, avoiding north-south transits during the
calving season, (3) using extreme caution and operating a slow,
safe speed, and (4) to the extent practicable and consistent
with mission, training, and operations, limiting vessel
14
The Early Warning System is a collaborative effort that involves
comprehensive aerial, surveys conducted during the North Atlantic right whale
calving season. Surveys are flown daily, weather permitting, from December
1st through March 31st. D0N182084. The purpose of the surveys is to locate
North Atlantic right whales and provide whale detection and reporting
information to mariners in the calving ground in an effort to avoid
collisions with this endangered species. Id.
15 This guidance also "reiterates previous instructions that Navy ships post
two lookouts, one of whom must have completed marine mammal recognition
training, and emphasizes the need for utmost vigilance in performance of
these lookout duties." DON182360.
AO 72A
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30
operations in critical habitat to daylight and periods of good
visibility. D0N182360-61,
Although Plaintiffs contend that Defendants are unable to
cite to anything in the record that "meaningfully analyzes" the
potential impacts on right whales, Dkt. No. 78 at 13, it is
clear from the foregoing that the Navy indeed took a "hard look"
at the potential impacts of ship strikes on the right whale
within the meaning of NEEA. In doing so, the Navy concluded
that the threat that ship strikes pose to the right whales,
while not impossible to avoid, is not expected in the area of
the proposed USWTR. Dkt. No. 82 at 20. The Court is not
required to agree with this assessment but, instead, must ensure
that the Navy took a "hard look" at the environmental impacts.
See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23
(2008) (noting that NEPA's requirements are procedural and the
Statute itself "does not mandate particular results" (quoting
Robertson v. Nethow Valley Citizens Council, 490 U.S. 332, 350
(1989))) . Here, the Navy has done so.
2. Entanglement
Plaintiffs argue that the Navy failed to take a "hard look"
at the possibility that right whales will become entangled in
discarded debris from the air launch accessories and parachutes
used on the range. Dkt. No. 73 at 20. This alleged failure is
significant because fishing gear entanglement is the second
AO 72A
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largest source of mortality for right whales. Id. (citing NMFS
AR 1789). Specifically, Plaintiffs contend that the Navy's
conclusion that entanglement is "unlikely" is flawed because it
was reached in a cursory manner without meaningful analysis. Id.
at 20-21.
The Navy responds, in turn, by arguing that it did consider
the risk of entanglement from the installation and operation of
the tJSWTR. Dkt. No. 76 at 20. In doing so, the Navy analyzed
the risk that discarded materials could have on right whales.
See, e.g, D0N182318 (discussing the potential impacts that
discarded control wires and flex hoses will have on sea turtles,
whales, or other animals); D0N182363 (analyzing the potential
for sea turtles or marine mammals to encounter an expended
parachute assembly). The Navy, however, determined that the
parachute's design, which includes weights designed to sink the
parachute from the surface within fifteen (15) minutes, reduces
the risk of entanglement. Dkt. No. 76 at 20-21 (citing
D0N096581; D0N162252) . Furthermore, contrary to Plaintiffs'
assertion, the Navy did consider the risk of billowing and
determined that it was unlikely as, "once the expended parachute
assembly has landed, it and its housing are expected to lay flat
on the seafloor, as observed at other locations." Id. at 21
(citing DON182363). The Navy also reasoned that discarded
debris associated with torpedoes "will not easily loop or
AO 72A
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tangle[,]" making it unlikely that these materials "will result
in the entanglement of any sea turtles, whales, or other
animals." DON182318.
The record makes clear that the Navy considered the
environmental consequences of the proposed action as it relates
to right whale entanglement with regards to parachutes and other
discarded debris. Further, the Navy has "articulated a
satisfactory explanation" as to why the proposed action would be
unlikely to have •a significant impact on right whales with
regards to entanglement, and there is "a rational connection
between the facts found and the choice made.'" Sierra Club v.
U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir. 2002)
(quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). As such, the
Navy has fulfilled its obligation.
3. Impacts from Sonar Exercises
Lastly, with respect to the right whales, Plaintiffs
contend that the Navy failed to take a "hard look" at the impact
that the systems used during exercises on the USWTR,
particularly the mid-frequency sonar, would have on right
whales. Dkt. No. 73 at 21. The record reveals, however, that
the Navy consulted the NMFS to address the potential effects to
marine mammals from sound associated with USWTR. DON182367. In
doing so, the Navy concluded that "the potential exists for
A0 72A
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3
33
moderate, but recoverable, effects to occur to sea turtles and
marine mammals from the introduction of sound into-the
environment. However, with the implementation of proper
mitigations, no significant impacts are anticipated." Id.
This
conclusion is rationally related to the analysis set forth in
section 4.3-64 of the FEIS. See DON12434-35 (analyzing the
impacts of low, mid, and high frequency on right whales) . As a
result, it is evident that the Navy took the "hard look"
required under NEPA regarding the potential environmental
impacts that sonar exposure could have on the right whales.
ii. Sea Turtles
Plaintiffs next argue that the FEIS fails to consider the
risks posed to threatened and endangered sea turtles resulting
from installation activities, ship strikes, and entanglement.
Dkt. No. 73 at 22. Contrary to Plaintiffs' contention, the Navy
did indeed take a "hard look" at the potential impacts that the
USWTR could have on sea turtles.
1. Installation
First, the Navy thoroughly considered the potential impacts
that the installation of the UWSTR could have on sea turtles.
Namely, the Navy rationally concluded that the risk of a ship or
the burial vehicle striking a sea turtle was minimal. Dkt. No.
76 at 22. The Navy came to this conclusion based on a
combination of the fact that the cable installation will proceed
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at slow speeds 16 and its reliance on studies which show sea
turtles evade vessels traveling at such slow speeds. See, e.q.,
DON182508 (citing a study for the proposition that turtles
frequently fled in encounters with a slow-moving (2.2 knots)
vessel); DON160498 (noting the "ability of turtles to detect
approaching vessels in the water via auditory and/or visual cues
would be expected based on knowledge of their sensory biology").
Additionally, the vessels will be required to have lookouts,
reducing the likelihood of a'ship strike during installation.
See DON185910 (stating that "all cable installation vessels will
be required to have lookouts that assist in advising the captain
when a marine mammal or sea turtle is in the vicinity"). The
record is clear that the Navy adequately considered the
potential impacts that ship strikes could have on sea turtles
and rationally concluded that the risk was minimal due both to
the speed of the vessel and the mitigation techniques employed.
Aside from ship strikes during installation, the Navy also
properly considered whether there was a risk that cable burial
could disturb a sea turtle in the process of brumating. 17 The
Navy again rationally concluded that the risk was minimal
because only a small number of sea turtles brumate in the area
16
The speed of the installation ship will be 1 to 3.7 km/hr or 0.5 to 2
NM/hr. DON182350.
17 Brumation is the reptilian equivalent to hibernation.
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for short periods during the winter 18 and cable installation will
be suspended between November 15 and April 15. See D0N185909
(noting that cable installation would be suspended during the
North Atlantic right whale calving season, November 15 through
April 15)
2. Entanglement
The Navy also considered the potential impacts of sea
turtles becoming entangled and rationally concluded that the
risk was low. The Navy cites studies that have found that
interactions between sea turtles and parachutes generally take
place at the surface or in the water column. D0N160619. The
parachute assemblies used for this project are designed to float
for a short time and then sink to the bottom. Id. Based on this
information, the Navy rationally concluded that the risk of
entanglement would be greatly reduced due to the amount of time
that sea turtles were exposed to the parachutes. Further,
although Plaintiffs posit that the Navy failed to consider the
risk of the parachutes billowing, Dkt. No. 73 at 23, the Navy
did indeed consider the risk and discounted the possibility in
reliance on a 2005 study. D0N182363 (citing ESG, 2005). As a
The Navy cites a study that found sea turtles generally rely on migration
to avoid northern winters. D0N182351 (citing Ultsch, 2006) . Further, in
reliance on this study and others, the Navy concluded that based on
observations and temperature requirements "[sjea turtles may possibly brumate
off the coast of Florida near the proposed Site A USWTR location for short
periods of time during cold winters." Id.
AO 72A
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result, the record reveals that the Navy adequately considered
the potential risks posed to sea turtles based on entanglement.
3. Ship Strikes
The Navy considered the potential impacts that ship strikes
could have on sea turtles and rationally determined that these
strikes would not significantly impact them. This conclusion
was based on a combination of sea turtles' ability to detect
approaching vessels in the water via auditory and/or visual cues
based on knowledge of their sensory biology, (D0N160498;
D0N182508), and the use of lookouts specifically trained to
detect sea turtles. D0N182359. While Plaintiffs disagree with
the Navy's conclusion that ship strikes do not pose a
significant risk to sea turtles, the Court finds that the Navy's
conclusion is satisfactory in that the explanation bears
rational connection to the facts found. Sierra Club v. U.S. Arm
Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir. 2002)
Consequently, the Court is satisfied that the Navy took a "hard
look at the-environmental consequences of the proposed action"
with respect to sea turtles. Id.
iii. Manatees
Plaintiffs also contend that the Navy failed to take a
"hard look" at the impacts of construction or operations on the
range of manatees. Dkt. No. 73 at 24. The record reveals,
AO 72A
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however, that the Navy did indeed take a "hard look" at
potential impacts that the proposed action could have on
manatees for both installation and operations of the USWTR.
1. Installation
As for the installation, the Navy examined evidence showing
that manatees are only likely to be in shallow areas near shore.
See DON182135 (noting that manatees are "fairly restricted to
shallower nearshore waters" (citing Wells et al., 1999) and that
manatees occur in "very shallow waters of 2 to 4m (7 to 13 ft)
in depth generally close to the shore" (citing Beck et al.,
2004)).
As a result, the Navy concluded that manatees are only
reasonably likely to occur in the shallow area where the trunk
cable portion of the USWTR may be installed. See D0N182136
("Manatees are expected in the freshwater, estuarine, and
nearshore coastal waters in or near the cable range portion of
Site A throughout the year. They are not expected in the
offshore portions of the Jacksonville OPAREA.")
This portion
of the installation will be installed through horizontal
drilling, meaning that vessels will not be used in the process.
D0N181937. Therefore, it was rational to conclude that this
process would not adversely affect manatees.
2. Operations
The Navy also analyzed potential impacts on manatees from
operation of the USWTR. In light of the evidence that manatees
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occupy riearshore waters, the Navy concluded that sonar usage
would be unlikely to impact the manatees. This conclusion was
reached based on studies that have shown that manatees do not
exhibit strong startle responses or an aggressive nature towards
stimuli, D0N182428 (citing Bowles et al., 2004), the fact that
manatees would not likely show a strong reaction or be disturbed
from their normal range of behaviors, and the fact that limited
active sonar activities would take place in the manatee habitat.
D0N182428. The Navy's conclusion in this regard was clearly
rationally connected to the evidence presented in the record.
The potential for manatee ship strikes was also examined by
the Navy. The USWTR will be located fifty (50) nautical miles
offshore, a location much farther from shore than traditional
manatee habitat. The Navy expects vessel traffic to occur at
roughly the same frequency in the manatee habitat as has
historically occurred. 19 Dkt. No. 76 at 27. This observation,
when combined with the mitigation techniques planned, 21 led the
Navy to the rational conclusion that the operations portion of
the USWTR would not have a significant impact on the manatees
due to ship strikes. It is clear from the foregoing that the
Navy has examined the relevant data with regards to risks posed
to manatees associated with the proposed action and has offered
is Notably, the Navy expects vessel traffic to actually decrease from Mayport
Naval Station. D0N165419.
20
For example, by using extensively trained lookouts. DON12359.
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I
'I
a satisfactory explanation for its decision. Accordingly, the
Navy has fulfilled its "hard look" requirement under NEPA. Motor
Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Nut. Auto
Ins. Co., 463 U.S. 29, 43 (1983).
d. Mitigation.
Plaintiffs' final challenge under NEPA is that the Navy's
analysis of mitigation techniques is arbitrary and capricious.
Dkt. No. 73 at 24. The Navy responds by noting that it
fulfilled its obligations regarding mitigation analysis and that
Plaintiffs simply wish the Navy would have adopted Plaintiffs'
favored mitigation measures. Dkt. No. 76 at 28. The record
reveals that the Navy fulfilled its obligations in considering
mitigation measures.
The Supreme Court has noted that "one important ingredient
of an EIS is the discussion of steps that can be taken to
mitigate adverse environmental consequences." Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 351 (1989) . This
"requirement is implicit in NEPA's demand that an EIS must
discuss any adverse environmental effects which cannot be
avoided should the proposal be implemented." Okanogan Highlands
Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000)
(internal citations and quotations omitted) . The Supreme Court
in Robertson also found that "[t]here is a fundamental
distinction, however, between a requirement that mitigation be
'O 72A
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discussed in sufficient detail to ensure that environmental
consequences have been fairly evaluated, on the one hand, and a
substantive requirement that a complete mitigation plan be
actually formulated and adopted, on the other." 490 U.S. at 352.
The Navy's FEIS includes an extensive mitigation analysis.
This mitigation analysis includes, a detailed description of
mitigation with respect to acoustical effects on marine animals,
(section 6.1), a discussion of the mitigation related to vessel
transits, (section 6.2), a description of the mitigation
measures that would be employed during cable installation,
(section 6.4), a statement of dedication to dynamic mitigation
as conditions change with time, (section 6.5), and a discussion
of the other mitigation measures that have been considered and
rejected, (section 6.6). D0N182647-182682. Plaintiffs' specific
attacks on this analysis evolve from their contention that the
Navy's usage of lookouts is ineffective and charges that the
Navy has arbitrarily refused other mitigation measures.
First, the Navy's decision to use professionally trained
lookouts is based on its belief that these lookouts have been an
integral part of the mitigation measures it has had in place
since 1997, during which time no strikes have occurred. Dkt. No.
76 at 28 (citing D0N183907) . As this conclusion is rationally
related to the underlying record of success the Navy has had
utilizing this measure, the Court is satisfied that this
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determination is not arbitrary and capricious. Second, the Navy
did consider the mitigation measures Plaintiffs discuss in their
motion, Dkt. No. 73 at 25-28, and rationally rejected them.
Specifically, the Navy properly considered restricting
operations during calving season and limiting speeds to 10knots. With regards to these two suggestions, the Navy reasoned
that "any reduction of training (including seasonal, weather- or
light based restrictions) would prohibit sailors from achieving
satisfactory levels of readiness needed to accomplish their
mission" and that "[t]raining differently than what would be
needed in an actual combat scenario would decrease training
effectiveness and reduce the crew's abilities." D0N182678;
D0N182680. Despite Plaintiffs' objections to this rationale,
this Court is to give "great deference to the professional
judgment of military authorities concerning the relative
importance of a particular military interest." Winter v. Natural
Res. Def. Council, Inc.., 555 U.S. 7, 24 (2008) (quoting Goldman
v. Weinberger, 475 U.S. 503, 507 (1986)).
Here, the Navy has met its requirement to discuss
mitigation in sufficient detail to ensure that the environmental
consequences have been fairly evaluated. Therefore, the Navy is
in full compliance with this requirement as stated under
Robertson. 490 U.S. 332, 352'(1989). Consequently, the Court is
satisfied that the Navy's mitigation analysis satisfied the
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"hard look" requirement of NEPA and was not arbitrary or
capricious.
e. NEPA Compliance
Based on the discussion above, the Court is satisfied that
the Navy fully complied with its responsibilities under NEPA.
As a result, the Court grants summary judgment in Defendants'
favor as to Plaintiffs' claims arising under NEPA.
B. The Endangered Species Act
The policy of Congress in initiating the ESA was to mandate
"that all Federal departments and agencies . . . seek to
conserve endangered species and threatened species." 16 U.S.C. §
1531(c) (1); see also Tenn. Valley Auth. v. Hill, 437 U.S. 153,
184 (1978) ("The plain intent of Congress in enacting this
statute was to halt and reverse the trend toward species
extinction, whatever the cost.") . In accordance with this
policy, the Secretary of the Interior is charged with publishing
a list of all species determined by him or the Secretary of
Commerce to be engendered or threatened in the Federal Register.
16 U.S.C. § 1533(c) (1).
Section 9 of the ESA establishes a prohibition of the
"taking" 2 ' of any member of a listed endangered species. 16
21
TheESA defines the term "take" as "to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any such
conduct." 16 U.S.C. § 1532(19). The Code defines "harm" in this context as
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U.S.C. § 1536(a) (2). Section 7 of the ESA requires that federal
agencies "insure that any action authorized, funded, or carried
out by such agency . . . is not likely to jeopardize the
continued existence of any endangered species or threatened
species" or destroy critical habitat. Id. at § 1536(a) (2) . To
comply with this provision, the ESA requires that a federal
agency consult with the National Marine Fisheries Service
("NMFS") or U.S. Fish and Wildlife Service ("FWS") under certain
circumstances. Such consultation is required whenever an action
"may affect" a listed species or critical habitat. 50 C.F.R. §
402.14(a). If it is determined that the action "may affect" a
listed species or critical habitat, formal consultation is
required. Id. 22
In determining whether formal consultation is necessary,
the acting agency prepares a "biological assessment" to evaluate
the potential effects "on listed and proposed species and
designated and proposed critical habitat and determine whether
any such species or habitat are likely to be adversely affected
"an act which actually kills or injures wildlife. Such act may include
significant habitat modification or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering." 50 C.F.R. § 17.3.
22
Formalconsultation is not required, however, if:
as a result of the preparation of a biological assessment under §
402.12 or as a result of informal consultation with the Service
under § 402,13, the Federal agency determines, with the written
concurrence of the Director, that the proposed action is not
likely to adversely affect any listed species or critical
habitat. Id. at § 402.14(b) (1).
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p
by the action." 50 C.F.R. § 402.12(a). If formal consultation
is necessary, the NMFS or FWS is responsible for issuing a
"biological opinion as to whether the action, taken together
with cumulative effects, is likely to jeopardize the continued
existence of listed species or result in the destruction or
adverse modification of critical habitat." 50 C.F.R. §
402..14(g)(4). 23 If, after consultation, the NMFS determines that
the proposed action will not jeopardize the continued existence
of the listed species but that an incidental taking of the
species may occur, the NMFS issues an "incidental take
statement" containing reasonable and prudent measures necessary
or appropriate to minimize the impact of the incidental take. 16
U.S.C. § 1536(b) (4); see also Or. Natural Res. Council v. Allen
476 F.3d 1031, 1036 (9th Cir. 2007) ("The FWS must issue an
Incidental Take Statement if the [Biological Opinion] concludes
no jeopardy to listed species or adverse modification of
critical habitat will result from the proposed action, but the
action is likely to result in incidental takings.")
In preparing its Biological Opinion the NMFS is to use "the
best scientific and commercial data available." Miccosukee Tribe
of Indians of Florida v. United States, 566 F.3d 1257, 1265
23
If the NMFS concludes the action is likely to jeopardize the continued
existence of the listed species, it must suggest "reasonable and prudent
alternatives" which can be taken by the acting agency to ensure that its
actions do not jeopardize the continued existence of the listed species. 16
U.S.C.
1536(b) (3) (A).
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(11th Cir. 2009); 16 U.S.C. § 1536(a) (2); 50 C.F.R. §
402.14(g)(8). Generally, the agency decides which data and
studies are the "best available" because the decision is itself
a scientific determination deserving deference. Id. (citing
Marsh v. Or. Natural Res. Council, 490 U.S 360, 377-78 (1989)).
a. Manatees
Plaintiffs' first argument under the ESA is that the Navy
failed to consult with the NMFS or FWS regarding the potential
effects that the proposed action could have on the West Indian
manatee, as is mandated by 16 C.F.R. § 402.14(a). The Navy's
biological assessment for the USWTR enumerates multiple ways in
which manatees may be affected by the project. See, e.g.,
D0N150137 ("Manatees are . . . particularly susceptible to
vessel interactions and collisions with watercraft constituting
the leading cause of mortality." (citation omitted)).
Plaintiffs argue that this finding requires that the Navy
initiate consultation.
The Navy did, in fact, consult the FWS informally. The FWS
concurred with the Navy's determination that the USWTR would not
be likely to jeopardize the continued existence of the West
Indian manatee. Dkt. No. 76 at 30 (citing Ex. 1) . The FWS's
concurrence terminated the consultation process, and no further
action was required on the part of the Navy. Id. As a result,
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the Navy fulfilled its obligations of consultation under 16
C.F.R. § 402.14.24
b. NMFS's Biological Opinion
Plaintiffs argue that the NMFS's biological opinion is
arbitrary and capricious because it fails to make connections
between the facts found and the conclusions reached. Dkt. No. 78
at 16. Specifically, Plaintiffs contend that the NMFS has
failed to support its conclusion that installation activities
will not result in the "take" of endangered sea turtles and that
operations on the range will not cause "jeopardy" to right
whales. Dkt. No. 73. Plaintiffs also contend that the NMFS
violated the ESA by failing to consider the "entire action" in
its jeopardy analysis. Id. Finally, Plaintiffs assert that NMFS
has failed to support its conclusion that there will be no
adverse modification on critical habitat.
i.
Sea Turtles
1. Installation
Plaintiffs submit that while the Biological Opinion listed
potential impacts on turtles associated with the installation
phase, it failed to "meaningfully analyze" the likelihood that
24 This exhibit was not a part of the administrative record because the FWS is
not a part of the current lawsuit. Plaintiffs contest the timing of the
Navy's consultation. However, the timing argument likely runs into a
mootness problem, as even if consultation here was untimely, the Navy has
indeed fulfilled its obligations with the FWS. Cf. Sierra Club v. Glickman,
156 F.3d 606, 619 (5th Cir. 1998) (finding an appeal on compliance with 50
C.F.R. § 402.13(a) moot as the agency had fully fulfilled its obligations
since the Court's order).
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sea turtles will be taken in connection with these activities
and to include an incidental take statement ("ITS") for any
takes that may occur as required by the ESA. Dkt. No. 73 at 31.
As for Defendants failure to meaningfully analyze, Plaintiffs
contend that the conclusion that it is unlikely that any takes
will occur during the installation phase is unexplained and
unsupported by the record. Id. at 32. With regards to the ITS,
Plaintiffs contend that the NMFS's own analysis provided
evidence that a "take" of sea turtles "may occur" during
installation, and thus, the NMFS has violated § 7(b) (4) of the
ESA by not including an ITS. Id.
The determination that USWTR installation is not likely to
adversely affect or result in the incidental take of sea turtles
is supported by the record and entitled to deference. The risk
of ship strikes involving sea turtles was considered, see, e.g.,
NNFS AR 1845, 1882-83, 1928 (noting that the risk of ship
strikes involving sea turtles is improbable because the ships
move at such slow speeds and there will be dedicated observers
on deck), as was the risk of entanglement, see, e.g., NMFS AR
1928 (analyzing the risk of entanglement)
•25
Furthermore,
Plaintiffs' argument that the record does not explain how sea
turtles are not at risk during the installation as it "can occur
25
Further, the record reflects that "[d]ue to the narrow width of the oceanbottom burial equipment, it is estimated that there would be an extremely low
probability that installation equipment would come into direct contact with
any turtle that may be on or in bottom sediments." D0N160616.
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during nesting season" is also addressed. Dkt. No. 80 at 19-20.
This is because, as Defendants point out, installation does not
require any significant construction on the beach or adjacent
waters where sea turtles nest. Dkt. No. 82 at 18 (citing
D0N182058; NNFS AR 1763)
26
In sum, although Plaintiffs feel the
NNFS's analysis was inadequate, the Court is satisfied that
there is a rational connection between the facts found and the
conclusions reached. Therefore, the Court cannot say that the
determination that the installation phase is unlikely to result
in a "taking" of a sea turtle was arbitrary and capricious.
Plaintiffs next argue that the NMFS illegally failed to
include an ITS for turtles in its Biological Opinion. Dkt. No.
73 at 32. In support of this argument, Plaintiffs contend that
the "NMFS's own analysis in the [Biological Opinion] provided
evidence that take of listed species - i.e., sea turtles - 'may
occur' as a result of that installation." Dkt. No. 73 at 32
(citing 50 C.F.R. § 402.14(g)(7)). However, the Biological
Opinion concluded that sea turtles are not likely to be
adversely affected by the installation phase. NMFS AR 1846; see
also NMFS AR
1930 (concluding that "we do not expect endangered
or threatened species to be 'taken' during the installation
phase of the proposed action"). The NMFS did not make a finding
that an "incidental taking" of sea turtles "may occur" during
2
6 Additionally, sea turtle nesting activity, which takes place on the shore,
falls under the purview of the FWS, not the NMFS.
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the operations phase of the USWTR. The Court has already
determined that the NMFS's determination regarding the "taking"
of sea turtles was not arbitrary and capricious. Suffice it to
say, 50 C.F.R. §'402.14(g)(7) was simply not triggered in light
of the rational conclusions reached by the NMFS pertaining to
the risk of a "taking" to sea turtles during the installation
phase.
2. Operation
Plaintiffs also challenge the Biological Opinion's
determination that the operations phase will not result in
jeopardy to sea turtles. Specifically, Plaintiffs assert that
the Biological Opinion fails to analyze whether a taking of sea
turtles may occur due to ship strikes or whether sea turtles are
at risk for entanglement from discarded debris used during Navy
operations. Id. at 36.
The record reflects that the NMFS did analyze the risk of
ship strikes and entanglement in the Biological Opinion. See,
e.g., NMFS AR 1875, 1928 (analyzing sea turtle exposure to
parachutes); NMFS AR 1882-83 (analyzing the risk of ship strikes
to sea turtles) . Further, aside from the Biological Opinion
itself, the record reveals additional support for the NMFS's
conclusion that the operations phase is unlikely to jeopardize
the continued existence of sea turtles. See, e.g.., D0N160615-16
(analyzing the risk of torpedo strikes on sea turtles and
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determining that the risk is "negligible"); DON160 619 (examining
the risks posed to sea turtles associated with the use of
sensing devices); D0N160619 (analyzing the risk of sea turtle
entanglement and determining that the parachutes design "would
greatly limit the amount of time that sea turtles are exposed to
the parachutes") . Finally, contrary to Plaintiffs' implication,
the NMFS did not attempt sidestep its obligation to make an
accurate "no jeopardy" opinion and wait on future data. Nor
would the NMFS be required to postpone its determination until
future studies were performed, as they are required to consult
the "the best scientific and commercial data available."
Miccosukee Tribe of Indians of Florida v. United States, 566
F.3d 1257, 1265 (11th Cir. 2009); 16 U.S.C. § 1536(a) (2); 50
C.F.R. § 402.14(g)(8). Here, the record supports a
determination that the NMFS fulfilled its obligation by relying
on the "best available science" in issuing its "no jeopardy"
opinion. Id.
ii. Jeopardy of Right Whales
Plaintiffs next challenge the Biological Opinion's
conclusion that operations on the USWTR will not cause jeopardy
to the North Atlantic right whale. Dkt. No. 73 at 33. This
challenge attacks the Biological Opinion's conclusion with
regards to the risks posed to right whales due to ship strikes
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and sonar usage . 27 As explained below, the NMFS's "no jeopardy"
determination is rational and based on the best available
scientific data. Therefore, the Biological Opinion is not
arbitrary and capricious and is entitled to deference.
Moreover, the deference owed to this "no jeopardy" determination
is especially strong as the NMFS had to make predictions over
the likelihood of ship strikes during USWTR activities.
Miccosukee Tribe of Indians, 566 F.3d at 1271; see also Bait.
Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87,
102 (1983) (stating that, when an agency "is making predictions,
within its area of special expertise, at the frontiers of
science . . . as opposed to simple findings of fact, a reviewing
court must generally be at its most deferential").
1. Ship Strikes and Sonar Usage
The Biological Opinion included an exposure analysis which
specifically examined the likelihood of a ship strike during the
operations phase of the USTWR. NMFS AR 1864-66. The NMFS
ultimately concluded that Navy vessels would have a 0.0000472
27
Tothe extent that Plaintiffs challenge the NMFS's failure to consider the
risk of entanglement to right whales, such an assertion is unfounded. See,
e.g., D0N160567 (noting that "Ie]ntanglement and drowning of a marine mammal
in a parachute would be unlikely, since the parachute would have to land
directly on an animal, or an animal will have to swim into it before it
sinks") . That this analysis is included in the Biological Assessment rather
than the Biological Opinion does not matter, as judicial review is based on
the entire record. See In re Operation of Mo. River Sy. Litigation, 421 F.3d
618, 634 (8th Cir. 2005) ("[T]here is no requirement that every detail of the
agency's decision be stated in the [Biological Opinion]. The rationale is
present in the administrative record underlying the document, and this is all
that is required.").
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probability of striking a whale in any year or a probability of
0.000236 over the five-year period of any permit the NMFS might
issue for the operations phase of the USWTR. 28 NMFS AR 1866.
Based on this analysis, the Biological Opinion concludes that,
while it cannot say that a ship strike is absolutely impossible,
the probabilities are sufficiently miniscule to conclude that a
strike is not likely. 29 Id. Based on this statistical analysis,
it cannot be said that the Biological Opinion's ultimate
conclusion that the operations phase of the USTWR is "not
likely" to jeopardize the continued existence of the right whale
is arbitrary or capricious.
Plaintiffs' challenges to this finding are unavailing.
First, Plaintiffs contend that the NMFS failed to consider the
best available science, which Plaintiffs argue demonstrates that
right whales exposed to mid-frequency alarm sounds are
especially vulnerable to ship strikes. Dkt. No. 80 at 18
(discussing the study by Nowacek et al., 2004). This study does
not, however, undermine the estimates provided in the Biological
Opinion. This is because, as Defendants point out, the database
used by the NMFS to calculate the figures does not exclude
28
Thisestimate of the probability of a future collision was derived by using
the number of steaming days in which U.S. Navy vessels engaged during 2006
and 2007 as representative of the annual number of steaming days between 1945
and 2009 and using the number of whales that the Navy has struck over that
sixty (60) year time interval. NMFS AR 1866.
29
WhilePlaintiffs repeatedly point out that the death of one right whale due
to a ship strike would be devastating to the species as a whole, the
consequences of this risk do not change the soundness of the Navy's
statistically-based conclusion that a ship strike is highly unlikely.
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collisions involving sonar. Dkt. No. 82 at 16 (citing
DON08 0195) . Furthermore, there are no reported instances of
sonar causing marine mammals to surface and collide with ships.
Id. (citing D0N183325)
Next, Plaintiffs argue that the NMFS's probability
calculation contains "fundamental flaws." Dkt. No. 80 at 18. In
making this argument, Plaintiffs make a number of observations
that they feel the NMFS should have considered in making its
calculation. See Dkt. No. 80 at 18 (arguing (1) that the
calculation failed to take into account the fact that there are
areas where right whale concentration would be higher and (2)
the study relied upon, which catalogued ship strikes
(D0N080195), warns that "the actual number of strikes is
undoubtedly much greater than reported here") . The calculations
were not flawed.
With regards to Plaintiffs' first challenge, Defendants
correctly note that the strike estimate would be zero had the
NMFS limited the analysis to the Jacksonville Operating Area, as
there have been no ship strikes involving Navy vessels and any
large whale species in this area since 1945. Dkt. No. 82 at 15
(citing D0N080206-18; NMFS AR 1865). Second, the NMFS did not
fail to compensate for underestimations of ship strikes, as the
Large Whale Ship Strike Database makes clear that federal
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represented. Id. (citing DON080198-99). In arriving at its
calculations, the NMFS relied on the Large Whale Ship Strike
Database, which is "the most comprehensive set of data to date
on this subject." DON080195. Plaintiffs make no attempt to show
that better data is available, and thus, the Court is satisfied
that the NMFS consulted the best available science in making its
probability assessment.
The NMFS also analyzed the potential impacts that sonar
could have on the right whale in coming to its "no jeopardy"
determination. The NMFS found that the right whale is not
likely to respond to high-frequency sound sources associated
with the proposed training activities. NMFS AR 1925. In
analyzing mid-frequency active sonar, the NMFS noted that the
evidence of whether right whales are likely to respond is
equivocal. See id. (noting that while the Nowacek et al., 2004
study found that "alert stimulus caused whales to immediately
cease foraging behavior and swim rapidly to the surface, [the
study], offer[ed] no information on whether the whales were
probably responding to the low- or mid-frequency components of
the signal"). However, while acknowledging this ambiguity, the
NMFS goes on to rationally conclude that "right whales seem less
likely to devote attentional resources to stimuli in the
frequency ranges of mid-frequency active sonar" and, therefore,
"are not likely to respond physiologically or behaviorally to
no
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sounds in this frequency range." NMFS AR 1926. Although
Plaintiffs disagree with this assessment, the NMFS certainly
considered the effect that sonar could have on the right whale.
Under the APA, this Court is to give substantial deference
to the NMFS's decisions as to "what evidence to find credible"
and "drafting decisions like how much discussion to include on
each topic, and how much data is necessary to fully address each
issue," finding such decisions inadequate only where they are
arbitrary, capricious, or an abuse of discretion. Nat'l
Wildlife Fed'n v. Souza, 2009 WL 3667070, at *5 (S.D. Fla. Oct.
23, 2009) (quoting Sierra Club v. Van Antwerp, 526 F.3d 1353,
1361 (11th Cir. 2008)) . Here, the arguments made by Plaintiffs
over the NMFS's shortcomings fall far short of what is required
to amount to decisions that are arbitrary, capricious, or an
abuse of discretion.
iii.
Whether NMFS Considered the Entire Action
Plaintiffs next contend that the Biological Opinion is
arbitrary and capricious because it fails to consider the entire
action in its jeopardy analysis for right whales. Dkt. No. 73 at
37; see also Dkt. No. 80 at 14 (citing Wild Fish Conservancy v.
Salazar, 628 F.3d 513, 521 (9th Cir. 2010) ("[T]he ESA requires
the biological opinion to analyze the effect of the
entire
agency action.")). More specifically, Plaintiffs argue that the
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NMFS failed to analyze both the installation and operation of
the USWTR. Dkt. No. 80 at 14.
Much of Plaintiffs' arguments in this regard come in the
form of supposed admissions on the part of the Navy and the NMFS
that the Biological Opinion only analyzed the installation phase
of the action. See, e.g., DON185918 (ROD) ("[T]he Navy's section
7 consultation under the ESA is only with regard to the
installation of the range. The Navy will initiate another
formal consultation under Section 7 of the ESA to address ASW
training on the USWTR in the 2014/2015 timeframe"); 30 NMFS AR
1731 (Cover Page of Biological Opinion) (noting that "[t]his
opinion concludes that the U.S. Navy's proposal to install an
Undersea Warfare Training Range (USWTR) is not likely to
adversely affect endangered or threatened species under NMFS'
jurisdiction or critical habitat that has been designated for
those species") 31
Defendants respond by arguing that just because the NMFS
acknowledged that its issuance of any MMPA "take" authorization
covering USWTR operations would trigger a new consultation
resulting in a new biological opinion does not reveal any flaw
3o
Defendants counter this statement by noting that the issuance of any MMPA
(which the Navy plans to do before it commences the operations phase) will
trigger a new consultation, resulting in a new biological opinion. Dkt. No.
82 at 14.
31 Plaintiffs neglect, however, to point out that the next sentence states:
"We have concluded that anti-submarine warfare training activities the U.S.
Navy plans to conduct on USWTR are likely to adversely affect endangered
whales, but [are] not likely to jeopardize the continued existence of those
whales." NMFS AR 1731 (Cover Page of Biological Opinion) (emphasis added).
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in the existing Biological Opinion. Dkt. No. 76 at 35. Further,
Defendants argue that the Biological Opinion clearly analyzed
both the operations and installation portions of the proposed
action. See, e.g., DON185886 (ROD) (noting that the "NMFS
provided the Navy with a BiologicalOpinion (30) on July 28,
2009, in which it analyzed the effects of both installation and
use of the USWTR"); NMFS AR 1731-32 (Cover Page of Biological
Opinion) ("We have concluded that anti-submarine warfare
training activities the U.S. Navy plans to conduct on USWTR are
likely to adversely affect endangered whales, but [are] not
likely to jeopardize the continued existence of those whales.").
Irrespective of "admissions" as to whether the Biological
Opinion analyzed only the installation phase or both the
installation and operation phases of the proposed action, the
content of the NMFS itself clearly analyzes both the
installation and operations of the USWTR. For example, pages
1925-26 of the Biological Opinion analyze the training
activities that are likely to occur during the operations phase
of the proposed USWTR. NMFS AR 1925-26. After a discussion of
the ASW training's effects on right whales - including estimates
of the number of right whales that might be exposed to the
active sonar and the expected response of these affected whales
to differing levels of frequency - the NMFS ultimately concludes
that the "anti-submarine warfare training activities associated
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with the Operations Phase of the Undersea Warfare Training Range
are not likely to adversely affect the population dynamics,
behavioral ecology, and social dynamics of individual North
Atlantic right whales in ways or to a degree that will reduce
their fitness." Id.,; see also NMFS AR 1913 (analyzing probable
responses of right whales to activities that are likely to occur
during the operations phase) . Similar analyses of the
operations phase of the proposed USWTR are also included for sea
turtles, see, e.g., NMFS AR 1916-17 (analyzing sea turtles
response to varying levels of sonar frequency and concluding
that "mid-frequency active sonar associated with the proposed
exercises 'may affect, but is not likely to adversely affect'.
loggerhead sea turtles");. NMFS AR 1918 (analyzing sea turtle
responses to underwater detonations) and sperm whales, see,
e.g., NMFS AR 1914 (analyzing probable responses of sperm whales
to sonar training)
To be clear, this is just a sampling of specific instances
where the Biological Opinion analyzed the operations phase of
the USWTR. 32 It is true, as Plaintiffs point out, that
"Defendants cannot use their need to comply with the MNPA in the
future as an excuse for not consulting on USWTR operations now."
32 1n addition to these specific examples, Defendants point out numerous other
occasions in which the Biological Opinion analyzes the operations phase of
the proposed action. See Dkt. No. 82 at 13 n.6 (citing NMFS AR 1734-46; 175253; 1847-63; 1864-79; 1879-1928; 1929) . Notably, Plaintiffs at no point
discuss these portions of the Biological Opinion.
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Dkt. No. 80 at 15. However, the inverse is also true.
Defendants' acknowledgement that another Biological Opinion will
have to be conducted pursuant to the MNPA does not mean that the
current Biological Opinion is insufficient. With this in mind,
the Court is convinced from the foregoing that the NMFS did not
fail to analyze the entire action. Rather, the record reveals
that the NMFS analyzed the entire action, including both the
installation and the operation phases of the USWTR. Therefore,
the Court cannot say that the NMFS acted arbitrarily and
capriciously in this regard.
iv.
Adverse Modification to Critical Habitat
Finally, Plaintiffs argue that the Biological Opinion
arbitrarily concludes that neither installing nor operating the
USWTR is likely to adversely modify critical habitat for the
right whale in violation of 50 C.F.R. § 402.14(g) (4) .
Dkt. No.
73 at 38. Specifically, Plaintiffs •contend that the Biological
Opinion fails to discuss whether the installation of the trunk
cable would adversely affect right whale habitat. Id. Likewise,
Plaintiffs assert that the Biological Opinion does not discuss
During formal consultation, this provision requires the service to
"[f]orrnu late its biological opinion as to whether the action, taken together
with cumulative effects, is likely to jeopardize the continued existence of
listed species or result in the destruction or adverse modification of
critical habitat." 50 C.F.R. § 402.14 (g) (4).
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the potential impacts that sonar may have on the critical
habitat. 34 Id. at 39.
The record reveals that the NMFS considered the potential
impact on the critical habitat of the right whale. First, the
Biological Opinion considered the potential impacts that the
cable installation could have on the right whale habitat. As a
preliminary matter, installation will not occur during the right
whale calving season. NMFS AR 1746. Furthermore, the Biological
Opinion includes an analysis as to whether the cable itself will
impact the right whale and discusses a study which found that
even an unburied cable has a "minimal statistically-significant
effect on the biota of the cable route." NMFS AR 1846 (citing
Korgan Study).
Additionally, the NMFS did consider whether sonar
activities would potentially affect right whale critical
habitat. The record reveals that the right whales critical
habitat was considered with regards to sonar and that it was
rationally determined that the Navy's active sonar training
Plaintiffs also contend that making any analysis of the impacts of the
cable installation on critical habitat would be meaningless because the Navy
had not completed its bottom mapping at the time the Biological Opinion was
released. Dkt. No. 73 at 39. However, as Defendants point out, the NMFS is
required to render its opinion using the best available data at the time of
the consultation. Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58,
60 (D.C. Cir. 2000); see also Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d
428, 436 (8th Cir. 2004) ("The requirement that agencies use the 'best
scientific and commercial data available,' . . . does not require an agency
to conduct new studies when evidence is available upon which a determination
can be made.")
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activities should not reduce the conservation value of the
designated habitat. NMFS AR 548; 35 see also NMFS AR 1926.
The NMFS rationally supported its position that the
critical habitat of the right whale would not be adversely
impacted by the USWTR. Accordingly, its conclusion in this
regard is entitled to deference, as it is not arbitrary and
capricious.
c. The Navy's Reliance on the Biological Opinion
Plaintiffs' final argument is that the Navy has failed to
ensure against jeopardy to listed species in violation of the
ESA by relying on a flawed Biological Opinion. Dkt. No. 73 at
39. In essence, Plaintiffs' position is that the Court should
find the Biological Opinion arbitrary and capricious, and that
the Navy's decision to rely on this Biological Opinion was
arbitrary and capricious as well. In this regard, Plaintiffs
cite an Eleventh Circuit opinion, Fla. Key Deer v. Paulison, 522
F.3d 1133, 1144 (11th Cir. 2008), which cites a Ninth Circuit
opinion, Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of
Nav, 898 F.2d 1410, 1415 (9h C±r. 1990), which stands for the
proposition that the "decision to rely on [the] biological
This conclusion was derived from a consideration of the Navy's mitigation
measures: "the northern units of right whale critical habitat would not be
exposed to mid-frequency active sonar at received levels greater than about
170 dB . . . [and] [b]ecause North Atlantic right whales are not likely to
respond to high-frequency sound sources associated with the proposed training
activities, high-frequency sound sources associated with the Navy's active
sonar training activities should not reduce the conservation value of the
designated critical habitat." NMFS AR 548.
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opinion must not have been arbitrary and capricious." However,
as the Eleventh Circuit noted in Paulison, the Ninth Circuit
qualified this statement by stating "another agency's reliance
on that opinion will satisfy its obligations under the [ESA] if
a challenging party can point to no 'new' information - i.e.,
information the [NMFS] did not take into account - which
challenges the opinion's conclusions." Id.
Plaintiffs, as the challenging party, "bean] a heavy
burden to prove that the [agency] was arbitrary and capricious
in relying upon the [NMFS] determination of a matter firmly
within that agency's area of expertise." Sierra Club v. U.S.
Army Corps of Eng'rs, 295 F.3d 1209, 1222 (11th Cm. 2002).
Here, as noted above, the NMFS has identified reasonable
justifications for its "no jeopardy" determination in the
Biological Opinion. Furthermore, Plaintiffs have pointed to no
new information that the NMFS failed to consider which would
call into question the Biological Opinion's conclusions.
Paulison, 522 F.3d at 1144. Accordingly, Plaintiffs have failed
to satisfy this heavy burden.
d. ESA
Based on the discussion above, the Court is satisfied that the
NMFS fully complied with its responsibilities under the ESA. As
a result, the Court grants summary judgment in Defendants' favor
on Plaintiffs' claims arising under ESA.
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CONCLUSION
The Court is satisfied that the Defendants complied fully
with NEPA, the ESA, and the APA. As a result, Defendants'
Motion for Summary Judgment is GRANTED, and Plaintiffs' Motion
for Summary Judgment is DENIED. The Clerk of Court is instructed
to close the case and enter an appropriate judgment.
SO ORDERED, this 6th day of September, 2012.
OISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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