Richard Max Strahan v. Gary Roughead, et al

Filing 98

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDERAccordingly, it is hereby ORDERED that: 1. Defendants' Renewed Motion to Dismiss is DENIED. 2. By February 15, 2013, the parties shall confer and report, jointly if possible but sepa rately if necessary, on a plan and schedule necessary to complete discovery on both the issue of mootness and the merits of the case. 3. A Scheduling Conference shall be held on February 28, 2013, at 3:30 p.m. Representatives of the parties with full settlement authority shall attend. 4. After discovery is complete, in consultation with the parties, the court will decide whether to establish a schedule for motions for summary judgment or whether to proceed directly to trial.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RICHARD MAX STRAHAN,
Plaintiff,
v.
ADM. GARY ROUGHEAD, et al.,
Defendants

)
)
)
)
)
)
)

C.A. No. 08-10919-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

December 26, 2012

I. INTRODUCTION
This case involves the United States Navy's obligations to
protect four whale species (the "Federally Protected Whales") under
the Endangered Species Act (the "ESA"), 16 U.S.C. §1531 et seq.
Plaintiff Richard Max Strahan, proceeding pro se, seeks declaratory
and injunctive relief against the defendants, Admiral Gary Roughead
and Secretary Raymond E. Mabus of the United States Navy, and Leon
Panetta, the Secretary of the United States Department of Defense
(collectively the "Navy").1 In essence, plaintiff contends that the
Navy is violating provisions of the ESA by: (1) operating its
vessels

and

conducting

training

operations

in

United

States

Atlantic coastal waters in a manner that kills and injures the
Federally

Protected

Whales

and

adversely

alters

federally

designated critical habitat; and (2) failing to consult with the

1

Panetta is now the Secretary of Defense and is, therefore,
automatically substituted for his predecessor, Robert M. Gates,
pursuant to Federal Rule of Civil Procedure 25(d).

National Marine Fisheries Service (the "NMFS") regarding the impact
of its operations. The Federally Protected Whales are the blue
whale

(Balaenoptera

musculus),

the

fin

whale

(Balaenoptera

physalus), the humpback whale (Megaptera novaeangliae), and the
North

Atlantic

right

whale

(Eubalaena

glacialis)

(the

"right

whale").2 See Compl. ¶2; see also 50 C.F.R. §§17.11(h) & 224.101(b)
(listing protected species).
In their renewed their motion to dismiss for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) (the "Renewed Motion to Dismiss"), defendants essentially
contend that plaintiff's claims are moot because the Navy has
engaged in the consultation required under the ESA, and has
obtained permission from the NMFS to incidentally "take" Federally
Protected Whales while conducting its activities. See Defendants'
Supp. Mem. of Points and Authorities in Supp. of Mot. to Dismiss
(Docket No. 71); Defendants' Mot. to Dismiss For Lack of Subject
Matter Jurisdiction (Docket No. 25).3
2

The North Atlantic right whale was formerly referred to as
the "Northern right whale," and is so referred to in the Complaint.
See Compl. ¶2.
3

The Navy's original Motion to Dismiss for Lack of Subject
Matter Jurisdiction (Docket No. 25) was denied without prejudice to
renewal on November 22, 2010. On July 28, 2011, the Navy filed a
Supplemental Memorandum of Points and Authorities in Support of
Motion to Dismiss (Docket No. 71). The plaintiff responded to that
filing with an Opposition to Defendants' Renewed Motion to Dismiss
(Docket No. 76). As the parties agree that the defendants have
renewed their motion to dismiss, the court is treating defendants'
2

At a hearing on March 16, 2012, the court denied plaintiff's
oral motions to file a supplemental memorandum in opposition to the
Renewed Motion to Dismiss and to file an amended complaint. In a
companion Memorandum and Order issued today, the court is denying
Plaintiff's Notice of Withdrawal, in which plaintiff seeks to
withdraw

his

Opposition

Memorandum

and

submit

a

new

one.

Defendants' Renewed Motion to Dismiss is being decided on the
parties' current submissions.
For the reasons described below, defendants' Renewed Motion to
Dismiss is being denied because there remain in the present record
material disputed facts concerning whether the plaintiff's claims
are moot. Therefore, the parties are being ordered to confer and
report on a proposed schedule for the remainder of the case.
II. LEGAL STANDARD
The court is addressing a motion to dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). One ground for such a motion is mootness. See
Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir.
2001).
Under Article III of the Constitution, federal courts do not
have jurisdiction "to give opinions upon moot questions." Church of
Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills
submissions as a Renewed Motion to Dismiss.
3

v. Green, 159 U. S. 651, 653 (1895)). A case is moot "if the court
is not capable of providing any relief which will redress the
alleged injury." Gulf of Maine Fishermen's Alliance v. Daley, 292
F.3d 84, 88 (1st Cir. 2002).4 "The burden of establishing mootness
rests squarely on the party raising it, and '[t]he burden is a
heavy one.'" Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir.
2003) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953)); see also ConnectU LLC v. Zuckerberg, 522 F.3d 82, 88 (1st
Cir. 2008).
As plaintiff is proceeding pro se, his pleadings must be
liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94
(2007);

Hughes

v.

Rowe,

449

U.S.

5,

9

(1980);

Instituto

de

Educacion Universal Corp. v. United States Dep't of Educ., 209 F.3d
18, 23 (1st Cir. 2000). However, in deciding a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(1), a court may
consider evidence submitted by a defendant in addition to crediting
factual allegations made in a complaint. See Aguilar v. U.S.
Immigration & Customs Enforcement Div. of Dep't of Homeland Sec.,
510 F.3d 1, 8 (1st Cir. 2007); see also Merlonghi v. United States,
620 F.3d 50, 54 (1st Cir. 2010).
4

See also Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d
1241, 1244-45 (9th Cir. 1988) (in appeal of district court
dismissal of claims as moot, stating "the basic question in
determining mootness is whether there is a present controversy as
to which [any] effective relief can be granted").
4

There are two types of Rule 12(b)(1) challenges, facial and
factual. "[W]hen a motion to dismiss for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) involves factual
questions . . . the court must determine whether the relevant
facts,

which

implicate

would

elements

determine
of

the

the

court's

plaintiff's

jurisdiction,
cause

of

also

action."

Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 162-63 (1st Cir.
2007). "[I]f the facts relevant to the jurisdictional inquiry are
not intertwined with the merits of the plaintiff's claim, . . .
'the trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.'" Id. at 163
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
However, "where the jurisdictional issue and substantive claims are
so intertwined the resolution of the jurisdictional question is
dependent on factual issues going to the merits, the district court
should employ the standard applicable to a motion for summary
judgment."

Id.

(internal

quotation

and

punctuation

omitted)

(quoting Autery v. United States, 424 F.3d 944, 956 (9th Cir.
2005)). "Thus, where the relevant facts are dispositive of both the
12(b)(1) motion and portions of the merits, the trial court should
grant the motion to dismiss 'only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.'" Id. (internal quotation omitted)
5

(quoting Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813
F.2d 1553, 1558 (9th Cir. 1987)).
In the instant case, defendants make a factual challenge based
on mootness. Resolution of the mootness question is dependent on
factual matters going to the merits. Therefore, the jurisdictional
issue and substantive claims are intertwined. Accordingly, to
satisfy their "heavy" burden of showing mootness, Mangual, 317 F.3d
at 60, defendants must demonstrate that no material jurisdictional
facts are in dispute and that they are entitled to prevail as a
matter of law. See Torres-Negrón, 504 F.3d at 163. Moreover, as
with a motion for summary judgment, plaintiff is entitled to
additional discovery if he can show: "(i) good cause for his
inability to have discovered or marshalled the necessary facts
earlier in the proceedings; (ii) a plausible basis for believing
that additional facts probably exist and can be retrieved within a
reasonable time; and (iii) an explanation of how those facts, if
collected,

will

suffice

to

defeat

the

pending"

motion.

Rivera-Torres v. Rey-Hernández, 502 F.3d 7, 10 (1st Cir. 2007)
(discussing predecessor to Federal Rule of Civil Procedure 56(d)).
As described below, the court concludes that material facts
are

in

genuine

dispute,

or

may

be

if

plaintiff

is

afforded

additional discovery, and that defendants have not now shown that
they are entitled to prevail as a matter of law. Therefore,
6

defendants have not satisfied their heavy burden, and the Renewed
Motion to Dismiss for mootness is not meritorious.
III. BACKGROUND
A. ESA Statutory Framework
The ESA "was enacted in 1973 to prevent the extinction of
various

fish,

wildlife,

and

plant

species."

Turtle

Island

Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d 969,
973 (9th Cir. 2003). It authorizes "the Secretary of the Interior
to promulgate regulations listing those species of animals that are
'threatened' or 'endangered' under specified criteria, and to
designate their 'critical habitat.'" Bennett v. Spear, 520 U.S.
154, 157-58 (1997) (quoting ESA §4, 16 U.S.C. §1533). Blue, fin,
humpback and right whales are all listed species. See 50 C.F.R.
§§17.11(h) & 224.101(b). Of these species, only the North Atlantic
right whale has designated critical habitat, which is defined as:
Cape Cod Bay, Massachusetts; the Great South Channel, which runs
between

Nantucket

Shoals

and

Georges

Bank

off

Cape

Cod,

Massachusetts; and the coastal waters of the southeastern United
States

running

roughly

between

Brunswick,

Georgia,

and

Cape

Canaveral, Florida. See 50 C.F.R. §226.203; see also id. §224.105,
Figs. 1-3; 59 Fed. Reg. 28,793, 28,806-08 (June 3, 1994). The ESA
provides a variety of protections for endangered species once a
species is listed or critical habitat is designated.
7

1. ESA §7
Section 7 of the ESA "directs federal agencies to insure that
agency action 'is not likely to jeopardize the continued existence
of any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species.'"
Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21, 25 (1st
Cir. 2001) (quoting ESA §7(a)(2), 16 U.S.C. §1536(a)(2)). "This
substantive requirement is backed up by a scheme of procedural
requirements that set up a consultation process" between the
federal agency and the overseeing federal service, the NMFS or the
United States Fish and Wildlife Service (the "FWS"), "to determine
whether endangered species or critical habitat are jeopardized by
proposed agency action and whether this adverse impact may be
avoided or minimized." Id. (citing ESA §7, 16 U.S.C. §1536).
To determine the possible effects of its actions, the agency
–- here, the Navy –- may consult with the relevant service –- here,
the NMFS –- through "informal consultation," a term that "simply
describes discussions and correspondence between the [NMFS] and the
agency designed to assist the agency in determining whether its
proposed action is likely to impact listed species or critical
habitat." Id. (citing 50 C.F.R. §402.13). "If, at the conclusion of
the

informal

consultation,

the

[NMFS]

issue[s]

[a]

written

concurrence[] that a 'proposed action is not likely to adversely
8

affect any listed species or critical habitat,' the agency may
proceed with the action without further consultation between the
parties." Id. (quoting 50 C.F.R. §402.14(b)(1)).
However, where the informal consultation does not resolve the
issue, the agency must embark on formal consultation. See id. at
26. "[F]ormal consultation culminates in the [NMFS's] issuance of
[a] biological opinion[] advising the agency 'whether the action is
likely to jeopardize the continued existence of a listed species or
result in the destruction or adverse modification of critical
habitat,' and, if so, whether 'reasonable and prudent alternatives'
exist to allow the agency to comply with the ESA." Id. (quoting 50
C.F.R.

§402.14(h)

and

citing

ESA

§7(b)(3)(A),

16

U.S.C.

§1536(b)(3)(A)). "If the [NMFS] conclude[s] that the action, or the
implementation of any reasonable and prudent alternatives, comply
with the ESA, the [NMFS] must also issue an 'incidental take
statement' that specifies the amount or extent of the authorized
taking of the species." Id. (quoting ESA §7(b)(4), 16 U.S.C.
§1536(b)(4) and citing 50 C.F.R. §402.14(i)).
Section 7 consultation generally results in the issuance of
either a concurrence letter stating that proposed actions are not
likely to jeopardize listed species, or a biological opinion
("BiOp") and an accompanying incidental take statement ("ITS"). A
biological opinion and incidental take statement review the effects
9

of proposed actions on listed species, list reasonable and prudent
measures to mitigate the effects on the species, and authorize a
certain amount of incidental "take" resulting from those actions.
See id. at 25-27.
2. ESA §9
Section 9 of the ESA prohibits any person from "taking" a
listed species. See ESA §9(a)(1), 16 U.S.C. §1538(a)(1)(B). The
term "person" includes "any officer, employee, agent, department,
or instrumentality of the Federal Government." ESA §3(13), 16
U.S.C. §1532(13). The word "take" means "to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in any such conduct." ESA §3(19), 16 U.S.C. §1532(19).
"'Take' is defined . . . in the broadest possible manner to include
every conceivable way in which a person can 'take' or attempt to
'take' any fish or wildlife." S. Rep. No. 93-307, at 7 (1973),
reprinted in 1973 U.S.C.C.A.N. 2989, at 2995; see also Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687,
703-04

(1995)

("Sweet

(citing

Home")

congressional

reports

demonstrating that "take" is to be defined broadly); Strahan v.
Coxe, 127 F.3d 155, 162 (1st Cir. 1997).
The term "harm" is not defined by the ESA. NMFS regulations
define "harm" as "an act which actually kills or injures fish or
wildlife . . . includ[ing] significant habitat modification or
10

degradation which actually kills or injures fish or wildlife by
significantly impairing essential behavioral patterns, including,
breeding, spawning, rearing, migrating, feeding or sheltering." 50
C.F.R.

§222.102;

see

also

Greenpeace

Found.

v.

Mineta,

122

F. Supp. 2d 1123, 1133 (D. Haw. 2000).5
Similarly, the term "harass" is not defined by the ESA. The
NMFS has not issued regulations defining "harassment," but in its
biological opinions, NMFS interprets "harassment" to mean "an
intentional or unintentional human act or omission that creates the
probability of injury to an individual animal by disrupting one or
more behavioral patterns that are essential to the animal's life
history

or

its

contribution

to

the

population

the

animal

represents." NMFS Programmatic Biological Opinion on U.S. Navy
Training Activities on East Coast Training Ranges ("Programmatic
Navy Training BiOp"), Affidavit of David T. MacDuffee ("MacDuffee
Affidavit") Ex. A, at 211.6
5

FWS regulations define "harm" similarly as meaning "an act
which actually kills or injures wildlife [and that] 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(c); see also Palila v. Hawaii Dep't of Land & Natural
Res., 639 F.2d 495, 497 (9th Cir. 1981).
6

The NMFS definition of "harassment" derives from the Marine
Mammal Protection Act of 1972, which:
defines "harassment" as "any act of pursuit, torment, or
annoyance which has the potential to injure a marine
mammal or marine mammal stock in the wild or has the
11

As explained earlier, if the NMFS concludes after §7 formal
consultation that any taking of a listed species incidental to the
agency action will not violate the ESA, the NMFS is required to
provide the agency with an incidental take statement specifying the
"impact of such incidental taking on the species" and "reasonable
and prudent measures . . . necessary or appropriate to minimize
such impact." ESA §7(b)(4), 16 U.S.C. §1536(b)(4). "[A]ny taking
that is in compliance with the terms and conditions [so] specified
. . . shall not be considered to be a prohibited taking of the
species" under §9 of the ESA. ESA §7(o)(2), 16 U.S.C. §1536(o)(2).

potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering" [16
U.S.C. 1362(18)(A)]. For military readiness activities,
this definition of "harassment" has been amended to mean
"any act that disrupts or is likely to disturb a marine
mammal or marine mammal stock by causing disruption of
natural behavioral patterns including, but not limited
to, migration, surfacing, nursing, breeding, feeding, or
sheltering to a point where such behaviors are abandoned
or significantly altered" (Public Law 106-136, 2004).
Programmatic Navy Training BiOp at 211.
The FWS defines harassment similarly as "an intentional or
negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly
disrupt normal behavioral patterns which include, but are not
limited to, breeding, feeding, or sheltering." 50 C.F.R. §17.3(c);
see also Palila, 639 F.2d at 497.
12

B. Procedural History and Facts
Strahan filed his Complaint pro se under the ESA's citizen
suit provision on May 30, 2008, seeking declaratory and injunctive
relief that would, among other things, compel the Navy to engage in
formal consultation with the NMFS under §7 of the ESA. On May 19,
2009, defendants moved to dismiss for lack of subject matter
jurisdiction, arguing, in part, that plaintiff's claims were moot
because the Navy had already initiated formal consultation with
NMFS regarding its activities. On November 22, 2010, the court
denied the motion to dismiss without prejudice to renewal after the
parties had an opportunity to conduct limited discovery on the
matter of consultation.
Following limited discovery, defendants filed their Renewed
Motion to Dismiss and accompanying exhibits. Plaintiff opposed the
motion.7 The following facts are derived from the Complaint and the
parties' submissions relating to the Renewed Motion to Dismiss, see
Merlonghi, 620 F.3d at 54; Aguilar, 510 F.3d at 8, with certain
details reserved for analysis of the issues raised in the Renewed
Motion to Dismiss.

7

Plaintiff has also filed several notices or reports since
filing his opposition memorandum. See Plaintiff's Report on New
Incidents (Docket No. 95); Plaintiff's Notice of Ongoing
Proceedings (Docket No. 88). These submissions have not been
considered in deciding the Renewed Motion to Dismiss, in part
because the Navy has not had the opportunity to respond to them.
13

1. Plaintiff's Complaint
Strahan is a conservation biologist and the Chief Science
Officer of Whale Safe USA. See Compl. ¶¶6, 12. He is a frequent and
impassioned litigant on behalf of endangered whales. See Strahan v.
Diodati, 755 F. Supp. 2d 318 (D. Mass. 2010); Strahan v. Holmes,
595 F. Supp. 2d 161 (D. Mass. 2009); Strahan v. New England
Aquarium, 25 Fed. Appx. 7 (1st Cir. 2002); Strahan v. Coxe, 939
F. Supp. 963 (D. Mass. 1996), aff'd in part and vacated in part,
127 F.3d 155 (1st Cir. 1997); Strahan v. Linnon, 967 F. Supp. 581
(D. Mass. 1997), aff'd, 187 F.3d 623 (1st Cir. 1998). As noted
earlier, plaintiff filed his Complaint on May 30, 2008.
In the Complaint, plaintiff alleges that the Navy, through the
operation of its vessels and its military training operations,
routinely causes harm to Federally Protected Whales along the
United States Atlantic coast.8 See Compl. at 1-2, ¶¶3-4, 11, 15,
18-21, 23-25, 27-29, 31-32, 34-36. The primary harms identified by
plaintiff include: (1) "ship strikes" of whales by Navy vessels;
(2)

noises

associated

with

Navy

ships

and

equipment;

and

(3) discharges of bombs and other ordnance. See id. Plaintiff
asserts that these activities "historically," "routinely," and

8

Paragraph 25 of the Complaint refers to the activities and
obligations of the "U.S. Coast Guard," not the Navy. For the
purposes of this Memorandum and Order, it is presumed that the
plaintiff intended this paragraph to refer to the Navy.
14

"currently" injure, kill or harass Federally Protected Whales. Id.
at 1-2, ¶¶3, 19-21, 23-25, 27, 31, 35.
Plaintiff particularly emphasizes the alleged harm to the
North Atlantic right whale. See id. at 1-2, ¶¶2-3, 13, 19-23, 29,
31-32, 34-35. The Complaint highlights several instances where
plaintiff claims that the Navy has killed right whales, including:
the 2005 death of a right whale off Monomoy Island in Massachusetts
allegedly resulting from a Navy training operation; the alleged
November 17, 2004, Naval ship strike resulting in the death of a
pregnant right whale off the Delaware coast; the June 10, 2002,
death of a right whale calf who was discovered near an area
designated as critical habitat and also near an area where the Navy
had conducted bombing exercises off the coast of Cape Cod in
Massachusetts; and the death of five right whales in 1996 that were
discovered in an area bordering designated critical habitat for the
species,

and

just

outside

an

area

where

the

Navy

had

been

conducting military training exercises with live ordnance. See id.
¶¶3, 19-21, 23. Plaintiff claims that, by these actions, the Navy
"has destroyed the ability of the Northern Right Whale to recover
from its endangered status." Id. ¶20.
The

Complaint

alleges

three

claims

against

defendants:

(1) Count I - violation of ESA §9 for the unlawful "taking" or
harming of Federally Protected Whales; (2) Count II - violation of
15

ESA §9 for the unlawful harming of North Atlantic right whales by
adversely

altering

their

designated

critical

habitat;

and

(3) Count III - violation of ESA §7(a) for refusing to enter into
formal consultation with the NMFS regarding the impact of its
vessel and military operations on Federally Protected Whales. See
id. ¶¶26-36. Plaintiff asserts that, despite the danger that Naval
operations pose to the survival of the Federally Protected Whales,
the Navy has: (1) failed to develop a conservation plan to prevent
harm to the Federally Protected Whales; (2) refused to record and
report on whale injuries and deaths caused by its operations;
(3) refused to enter into formal ESA consultation with NMFS; and
(4) failed to obtained an incidental take statement from NMFS
authorizing the incidental taking of Federally Protected Whales.
See id. ¶¶1, 3, 15, 24-36. Plaintiff also alleges that the NMFS has
never

reviewed

the

impact

of

Naval

operations

on

Federally

Protected Whales. See id. ¶15, 25.
The Complaint seeks a variety of relief, including: (1) a
declaratory judgment that the Navy has violated its duty under ESA
§7 to enter into formal consultation with the NMFS regarding its
operations, and injunctive relief compelling the Navy to do so;
(2) a declaratory judgment that the Navy has violated its duty
under ESA §7 to develop and implement a conservation plan to ensure
the recovery of Federally Protected Whales; (3) a declaratory
16

judgment that defendants are violating the ESA §9 "take" provisions
by harming Federally Protected Whales, and an order enjoining
defendants from conducting ship and military operations in a manner
that violates this provision; (4) a permanent injunction to enjoin
Navy ships from operating and Navy exercises from occurring within
1,000 yards of Federally Protected Whales; and (5) a permanent
injunction to prevent Navy ships from traveling in excess of 10
knots within critical habitat of the North Atlantic right whale and
within two miles of a sighted or known location of a Federally
Protected Whale. See id. ¶¶1, 3-4, I-VII.
2. Navy ESA Consultation and Documentation
In response to the November 22, 2010 Order, the parties
engaged in limited discovery relating to the Navy's consultation
with NMFS. In support of the Renewed Motion to Dismiss, the Navy
has produced biological opinions, incidental take statements, and
other documents relating to its ESA consultation with the NMFS on
various Atlantic coast Naval activities. These thirteen exhibits
are attached to the sworn declaration of Navy Natural Resources
Manager David T. MacDuffee ("MacDuffee Affidavit") and include:
(1) one "programmatic" and three annual NMFS Biological Opinions on
U.S. Navy Training Activities on East Coast Training Ranges ("Navy
Training BiOps"), see MacDuffee Aff. Exs. A-D; (2) one programmatic
and three annual NMFS Biological Opinions on U.S. Navy Atlantic
17

Fleet Active Sonar Training ("Navy AFAST BiOps"), see MacDuffee
Aff. Exs. E-H; (3) a programmatic NMFS Biological Opinion on the
U.S. Navy Undersea Warfare Training Range ("Navy USWTR BiOp"), see
MacDuffee Aff. Ex. K; and (4) an informal consultation concurrence
letter from NMFS regarding the Navy's DDG 51 Class Sea Trials dated
September 12, 2008 ("DDG 51 Class Sea Trials Concurrence Letter"),
see MacDuffee Aff. Ex. L. In addition, the Navy has submitted two
NMFS Final Environmental Impact Statements on measures to reduce
ship strikes to the North Atlantic right whale, see MacDuffee Aff.
Ex. I-J, and a February 2009 Addendum to the August 2008 Biological
Evaluation for East Coast Range Complexes, see MacDuffee Aff.
Ex. M.
The court may properly consider these exhibits for purposes of
deciding the Renewed Motion to Dismiss. See Merlonghi, 620 F.3d at
54; Aguilar, 510 F.3d at 8. Because defendants assertions of
mootness

rely

on

the

contents

of

these

documents,

they

are

summarized in detail.9
i. Navy Training BiOps & ITSs
The Programmatic and Annual Navy Training BiOps are the result
of formal ESA §7 consultation with the NMFS initiated by the Navy

9

Citations in the following sections refer to the page number
of the exhibits, not the documents themselves, as not all of the
documents contain correct pagination.
18

in 2008. See, e.g., Programmatic Navy Training BiOp at 2.10 These
biological

opinions

consider

vessel

operations

and

training

activities in Naval operating areas and "range complexes" along the
Atlantic coast of the United States. See id. at 3-42, 73, 128. The
Navy Training BiOps conclude that there may be some, but very few,
impacts on Federally Protected Whales from these activities.
The "action areas" covered by the Navy Training BiOps include
the Northeast Operating Areas, comprised of the Boston Complex
Operating Area, the Narragansett Bay Operating Area, and the
Atlantic City Operating Area; the Virginia Capes Range Complex; the
Cherry Point Range Complex, off the coast of North Carolina; and
the Jacksonville Range Complex, which includes both the Charleston
and Jacksonville Operating Areas and runs from North Carolina to
Florida. See id. at 2, 4, 9, 17, 24, 31-35, 40, 73, 128.
The proposed actions considered in the Navy Training BiOps
primarily involve individual unit and joint training exercises for

10

Similar information is included in the Programmatic and
Annual Navy Training BiOps except where so noted. See generally
2009 Annual Navy Training BiOp; 2010 Annual Navy Training BiOp;
2011 Annual Navy Training BiOp.
The Programmatic Navy Training BiOp was issued on June 5,
2009, and covers the years between June 2009 and June 2014. See
Programmatic Navy Training BiOp at 1-4. The three Annual Navy
Training BiOps were issued in June 2009, June 2010, and June 2011,
and cover Navy operations for the year following those dates. See
2009 Annual Navy Training BiOp at 1-3; 2010 Annual Navy Training
BiOp at 3-6; 2011 Annual Navy Training BiOp at 3-6.
19

various types of Naval combat operations. See id. at 3-42.11 The
BiOps consider the potential impacts of these Naval activities on
the Federally Protected Whales and several other listed species.
See id. at 129-193. They also discuss mitigation and protective
measures to be implemented by the Navy, including: special training
for Navy personnel; posting of lookouts on Navy ships; reporting,
monitoring

and

tracking

whale

locations;

utilizing

special

operating procedures and collision avoidance strategies, including
vessel speed restrictions and safety zones around known whales; and
taking additional protective measures in and around North Atlantic
right whale habitat. See id. at 43-66. In addition, they discuss
monitoring and reporting requirements, including: notifying NMFS
when activities are thought to have resulted in the injury, death,
or unauthorized take of a marine mammal, or if an injured or dead
mammal

is

found

in

the

vicinity

of

certain

Naval

training

exercises; creating an Integrated Comprehensive Monitoring Program
Plan; and submitting both comprehensive (i.e., five-year) and
annual monitoring and exercise reports for the Virginia Capes,

11

The Navy Training BiOps also discuss activities related to
the Navy's Atlantic Fleet Active Sonar Training ("AFAST") as
"Interrelated and Interdependent Actions." See, e.g., Programmatic
Navy Training BiOp at 71-112, 219-228, 243-248, 258-319. AFAST
actions, however, are the subject of separate ESA §7 consultation
resulting in the Navy AFAST BiOps.
20

Cherry Point, and Jacksonville Range Complexes. See id. at 66-70.12
The Navy Training BiOps identify a variety of potential
"stressors" for Federally Protected Whales stemming from Naval
training activities, including: ship collisions; disturbances due
to movement of vessels and aircraft; exposure to shock and sound
waves from underwater detonations; interactions with unexpended
ordnance; and exposure to chemicals from explosive charges and
ordnance. See id. at 212-219. Based on estimates of the amount and
types of operations, the total number of Navy ships operating on
the Atlantic coast, and the total number of hours at sea (or
"steaming days") for the Atlantic fleet, the Navy Training BiOps
estimate that there may be some, but very few, impacts on Federally
Protected Whales. See id. at 213-219, 228-243, 248-257, 296-319.
In particular, the Navy Training BiOps calculate that based on
an estimated 3,450 steaming days per year, "Navy vessels would have
a 0.0000472 probability of striking a whale in any year over the
next five years or a probability of 0.000236 over the five-year
period." Id. at 231. Three of the Navy Training BiOps do not
calculate specific numbers of whales that may be at risk of being
struck by Navy vessels, but the 2010 and 2011 Annual Navy Training
BiOps estimate these numbers at zero blue whales, two fin whales,
12

See also 2009 Annual Navy Training BiOp at 42-69; 2010
Annual Navy Training BiOp at 43-67; 2011 Annual Navy Training BiOp
at 47-78.
21

53 humpback whales, and one right whale per year. See 2010 Annual
Navy Training BiOp at 248-254; 2011 Annual Navy Training BiOp at
291-296. The Navy Training BiOps also estimate that, annually, just
two fin whales and two humpback whales are at risk of being exposed
to underwater detonations, and only in the Virginia Capes Range
Complex. See, e.g., Programmatic Navy Training BiOp at 238, 298. No
other Federally Protected Whales are estimated to be at risk from
underwater explosions in any Atlantic coast operating area. In
addition, the Navy Training BiOps discuss, but do not calculate
specific exposures for vessel and aircraft disturbances, chemicals,
and unexploded ordnance. See id. at 243-245.
Each of the Annual Navy Training BiOps also includes an
incidental take statement. See, e.g., 2009 Annual Navy Training
BiOp at 318-320.13 Each ITS permits two "harassments" of both
humpback and fin whales in the Virginia Capes Range Complex
relating to underwater detonations, but no other harassments or
"harm" to any Federally Protected Whale along the Atlantic coast,
including for ship strikes. See id. at 328-319. Each ITS notes that
"[n]o whales are likely to die or be wounded as a result of their
exposure

to

U.S.

Navy

training

activities

in

the

Northeast

Operating Area, Virgina Capes Range Complex, Cherry Point Range
13

The other Navy Training BiOps contain essentially the same
Incidental Take Statement. See 2010 Annual Navy Training BiOp at
288-290; 2011 Annual Navy Training BiOp at 333-336.
22

Complex, or Jacksonville Range Complex." Id. at 319.
The incidental take statements require the Navy to submit
various reports on its actions, and recommend that the Navy work
with the NMFS to conduct a cumulative impact analysis of its
activities on marine mammals. See id. at 319-320. The ITS for the
2011 Annual Navy Training BiOp specifically provides that "to be
exempt from the prohibitions of section 9 of the Endangered Species
Act" the Navy shall provide annual monitoring reports and annual
military exercise reports for the Virginia Capes, Cherry Point, and
Jacksonville Range Complexes. 2011 Annual Navy Training BiOp at
335.
Reinitiation of formal consultation is required if: "(1) the
amount

or

extent

of

incidental

take

is

exceeded;

(2)

new

information reveals effects of the agency action that may affect
listed species or critical habitat in a manner or to an extent not
considered in this opinion; (3) the agency action is subsequently
modified in a manner that causes an effect to the listed species or
critical habitat not considered in this opinion." Id. at 336.
ii. AFAST BiOps and ITSs
Like the Navy Training BiOps, the Programmatic and Annual Navy
AFAST BiOps are the result of formal ESA §7 consultation with the
NMFS initiated by the Navy in 2008. See, e.g., Programmatic Navy

23

AFAST BiOp at 3.14 The Navy AFAST BiOps consider Atlantic Fleet
Active Sonar Training ("AFAST") activities occurring along the
Atlantic coast of the United States from the Boston Complex
Operating Area in the Gulf of Maine, to the Jacksonville-Charleston
Operating Areas, and further south to approximately 23 degrees
north latitude, which is south of the southern tip of Florida. See
id.

at

3-4,

14-15,

59.

The

Navy

AFAST

BiOps

conclude

that

significant numbers of Federally Protected Whales are likely to be
harassed, but not harmed, by Navy AFAST activities. See id. at 144146, 180-183, 190-195, 205.
The proposed activities considered in the Navy AFAST BiOps
involve individual unit and group exercises for various types of
combat and sonar-related operations, and include training with midfrequency and high-frequency active sonar, as well as the Navy's
extended echo ranging systems. See id. at 4-16. The AFAST BiOps
discuss mitigation and protective measures to be implemented by the

14

In essence, the same information is included in the
programmatic and annual Navy Training BiOps with minor variations
except where so noted. See generally 2009 Annual Navy AFAST BiOp;
2010 Annual Navy AFAST BiOp; 2010 Annual Navy AFAST BiOp.
The Programmatic Navy AFAST BiOp was issued on January 16,
2009, and covers the years between January 2009 and January 2014.
See Programmatic Navy AFAST BiOp at 1-4. The three Annual Navy
Training BiOps were issued in January 2009, January 2010, and
January 2011, and cover Navy operations for one year from those
dates. See 2009 Annual Navy AFAST BiOp at 1-4; 2010 Annual Navy
AFAST BiOp at 1-3; 2011 Annual Navy AFAST BiOp at 1, 5-6.
24

Navy, including: special training for Navy personnel; posting of
lookouts on Navy ships; reporting, monitoring and tracking whale
locations; creating safety zones and decreasing sonar decibel
levels where animals are detected; avoiding exercises in designated
Planning Awareness Areas that contain high concentrations of marine
mammals; utilizing special operating procedures and collision
avoidance strategies, including vessel speed restrictions; taking
additional protective measures such as speed restrictions and
exercise limitations in and around North Atlantic right whale
critical

habitat

and

migration,

calving,

and

feeding

areas;

creating an Integrated Comprehensive Monitoring Program Plan;
submitting annual AFAST Monitoring Plan and AFAST Exercise Reports;
and submitting an AFAST 5-Year Comprehensive Report in November of
2012. See id. at 16-41.
The

Navy

AFAST

BiOps

identify

a

variety

of

potential

"stressors" for Federally Protected Whales stemming from AFAST
activities, including: ship collisions; disturbances due to vessel
proximity; harms from high and mid-frequency active sonar sound
waves; harms from explosive charges in certain sonar devices; and
entanglements with parachutes from sonobuoy deployments. See id. at
49, 132-141. Based on estimates of the amounts and types of
activities described, the Navy AFAST BiOps anticipate a variety of
possible impacts on Federally Protected Whales, primarily stemming
25

from exposure to active sonar sound waves. See id. at 131-202. The
Programmatic and Annual Navy AFAST BiOps vary somewhat in their
estimates of annual whale exposures to active sonar, but fall
within the following ranges: 800-881 blue whales; 880-970 fin
whales; 4,172-4,622 humpback whales; and 662-733 right whales. See
id. at 144-146, 180-183, 190-195.15 The Navy AFAST BiOps do not
calculate

specific

estimated

exposures

for

ship

collisions,

disturbances due to vessels and aircraft, explosive charges, or
sonobuoy parachutes, but instead discuss mitigation measures and
likely animal responses. See id. at 132-136, 140-142, 148-152, 190196.
Each

of

the

Annual

Navy

AFAST

BiOps

also

includes

an

incidental take statement. See, e.g., 2009 Annual Navy AFAST BiOp
at 204-209.16 The incidental take statements permit, in essence, the
following numbers of annual harassments due to active sonar: 880
blue whale harassments; 970 fin whale harassments; 4,620 humpback
whale harassments; and 730 right whale harassments. See id. at
205.17 There are no other permitted harassments or harms for any
Federally Protected Whales, including for ship strikes, although
15

See also 2010 Annual Navy AFAST BiOp at 146-147, 184-187,
194-200; 2011 Annual Navy AFAST BiOp at 137-139, 170-172, 177-182.
16

See also 2010 Annual Navy AFAST BiOp at 208-212; 2011 Annual
Navy AFAST BiOp at 188-192.
17

See also 2010 Annual Navy AFAST BiOp at 208-209; 2011 Annual
Navy AFAST BiOp at 188-189.
26

each ITS notes that the NMFS "generally expect[s]" that blue, fin,
and humpback whales will "change their behavior in response to cues
from [Navy] vessels." Id.18 Each ITS also states that "[n]o whales
would die or be wounded as a result of their exposure to U.S. Navy
active sonar training activities along the Atlantic Coast." Id.
The incidental take statements also require the Navy to submit
various reports on its actions to NMFS, and recommend that the Navy
work with the NMFS to conduct a cumulative impact analysis of its
activities

on

marine

mammals.

See

id.

at

206-208.

Each

ITS

specifically provides that "to be exempt from the prohibitions of
section 9 of the Endangered Species Act" the Navy shall submit: an
Annual Atlantic Fleet Active Sonar Training Report, which contains,
among other things, a Cumulative Impact Report, and information on
AFAST training exercises, sonar usage, and mammal sightings; and
individual

reports

following

the

completion

of

major

sonar

exercises. Id. at 206-208.
Reinitiation of formal consultation is required if: "(1) the
amount

or

extent

of

incidental

take

is

exceeded;

(2)

new

information reveals effects of the agency action that may affect
listed species or critical habitat in a manner or to an extent not

18

The right whale is omitted from this paragraph in all three
incidental take statements. See 2009 Annual Navy AFAST BiOp at 205;
2010 Annual Navy AFAST BiOp at 209; 2011 Annual Navy AFAST BiOp at
189.
27

considered in this opinion; (3) the agency action is subsequently
modified in a manner that causes an effect to the listed species or
critical habitat not considered in this opinion." Id. at 209.
iv. Navy USWTR BiOp
The Programmatic USWTR BiOp was issued on July 28, 2009, and
resulted from formal ESA consultation initiated in 2004 on the
Navy's proposed installation and use of its Undersea Warfare
Training Range ("USWTR") in the Jacksonville Range Complex off the
coast of Florida. See Programmatic Navy USWTR BiOp at 1, 3-4.
The

USTWR

project

comprises

two

phases:

installation,

scheduled to begin in 2012 or 2013, which involves the placing of
a network of devices and undersea cables about 50 nautical miles
off the Florida Coast; and operations, scheduled to begin in 2014
or 2015, when anti-submarine warfare training will be conducted in
the area. See id. at 3-8, 22. The Programmatic USWTR BiOp concludes
that the installation phase is "not likely to adversely affect
endangered or threatened species under NMFS' jurisdiction" or their
critical habitat, but that activities during the operations phase
will likely adversely affect some Federally Protected Whales. Id.
at 1, 3-7, 193-196, 199. Identified potential stressors in the
installation phase include risk of collisions with vessels involved
in placing the USWTR equipment, disturbances from those vessels,
alteration of habitat, and potential entanglements with cables. See
28

id. at 114-116. Mitigation measures for the installation phase
involve lookouts on all installation vessels, and suspension of
installation activities during North Atlantic right whale calving
season. See id. at 16. Stressors, potential impacts and mitigation
procedures for the operations phases are also identified.
The BiOp does not include an ITS that provides for any "take"
of Federally Protected Whales, and requires reinitiation of formal
consultation

when

the

operations

phase

begins

or

if:

"(1) endangered or threatened marine animals are 'taken' incidental
to the installation of the training range; (2) new information
reveals effects of the installation of the training range that may
affect listed species or critical habitat in a manner or to an
extent not previously considered in this biological opinion; [or]
(3) the installation of the training range is subsequently modified
in a manner that causes an effect to the listed species or critical
habitat that was not considered in this biological opinion." Id. at
1-2, 200-201.
iv. DDG 51 Class Sea Trials Concurrence Letter
The DDG 51 Class Sea Trials Concurrence Letter is an informal
consultation concurrence letter written by NMFS regarding the
Navy's proposed sea trials for the new DDG 51 Class guided missile
destroyers between 2008 and 2011. See DDG 51 Class Sea Trials
Concurrence Letter. It covers a variety of testing activities and
29

maneuvers for the destroyers occurring in the Gulf of Maine, the
Great South Channel, and waters south of Georges Bank. See id. at
1-3.

The

concurrence

letter

notes

that

the

Navy's

proposed

mitigation measures include: conducting full power runs only during
daylight; utilizing trained observers and lookouts; using sighting
advisory system reports for protected marine mammals; limiting
speeds or using traffic separation schemes to avoid collisions; and
implementing extra precautions if whales are known to be in the
area. See id. at 2-3. The letter states that the only anticipated
effects of the sea trials are "ship strikes or other direct
interaction

with

exercise

components

(e.g.,

released

[inert]

ordnance)." Id. at 3. The letter concludes that the Navy's proposed
activities are "not likely to adversely affect any species under
NMFS jurisdiction" and that "no further consultation pursuant to
section 7 of the ESA is required." Id. at 4.
IV. ANALYSIS
In the Renewed Motion to Dismiss, defendants contend that
plaintiff's claims are moot because the Navy has initiated ESA §7
formal consultation for all activities challenged in the Complaint,
and because it has been issued incidental take statements for those
activities, which provide an "absolute defense" to claims under §9
of the ESA. As explained earlier, a case is moot "if the court is
not capable of providing any relief which will redress the alleged
30

injury." Gulf of Maine Fishermen's Alliance, 292 F.3d at 88
(citation omitted). "Thus, 'if an event occurs while a case is
pending . . . that makes it impossible for the court to grant any
effectual relief whatever to a prevailing party, the [action] must
be dismissed.'" Id. (quoting Church of Scientology, 506 U.S. at
12); see also New Engl. Reg'l Council of Carpenters v. Kinton, 284
F.3d 9, 17-19 (1st Cir. 2002). The party asserting mootness bears
a heavy burden in attempting to establish its applicability.
Connectu, 522 F.3d at 88; Mangual, 317 F.3d at 60. In the instant
case, the Renewed Motion to Dismiss may be granted only if the
material jurisdictional facts are not in dispute and defendants
show

they

are

entitled

to

prevail

as

a

matter

of

law.

See

Torres-Negrón, 504 F.3d at 163.
A. Count I - Violation of ESA §9 for Harming Federally
Protected Whales
Count I of plaintiff's Complaint asserts that defendants are
violating §9 of the ESA by killing, injuring and unlawfully taking
Federally Protected Whales in the course of the Navy's vessel
operations and training activities. Defendants contend that this
claim is moot because the Navy has been issued incidental take
statements for these activities, and that these ITSs constitute an
"absolute defense" to claims under ESA §9.
Although the First Circuit has not decided the issue, other

31

courts have held that while an incidental take statement may moot
§9 claims and shield an agency from §9 liability, it does so only
if the ITS and its accompanying biological opinion address the
agency's actions, and the agency complies with the conditions and
take limits established by the ITS. See

Ctr. for Biological

Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1108 (9th
Cir. 2012); Oregon Natural Res. Council v. Allen, 476 F.3d 1031,
1034-35 (9th Cir. 2007); Arizona Cattle Growers' Ass'n v. U.S. Fish
& Wildlife, 273 F.3d 1229, 1239 (9th Cir. 2001); In re Operation of
Missouri River Sys. Litig., 363 F. Supp. 2d 1145, 1160 (D. Minn.
2004) ("Missouri River"), aff'd in part and vacated in part, 421
F.3d 618 (8th Cir. 2005).
The ESA provides that any taking in compliance with an ITS
"shall not be considered to be a prohibited taking" of the species.
ESA §7(o)(2), 16 U.S.C. §1536(o)(2). The Ninth Circuit has stated
that an ITS "functions as a safe harbor provision immunizing
persons

from

Section

9

liability

and

penalties

for

takings

committed during activities that are otherwise lawful and in
compliance with its terms and conditions." Ctr. for Biological
Diversity, 698 F.3d at 1108 (emphasis added) (quoting Arizona
Cattle Growers, 273 F.3d at 1239); see also Oregon Natural Res.
Council, 476 F.3d at 1034-35; Missouri River, 363 F. Supp. 2d at
1160 (a federal agency has an "absolute defense to a Section 9
32

claim

so

long

as

its

operations

are

in

accordance

with

the

[biological opinion] and the terms and conditions of the ITS").
However, the Ninth Circuit has also noted that "if the terms
and conditions of the Incidental Take Statement are disregarded and
a taking does occur, the action agency or the applicant may be
subject to potentially severe civil and criminal penalties under
Section 9." Arizona Cattle Growers, 273 F.3d at 1239; see also
Bennett, 520 U.S. at 170. For example, ESA regulations require a
federal agency, in accordance with its ITS, to monitor and report
on

the

impacts

of

its

incidental

take,

and

to

reinitiate

consultation if the amount or extent of incidental take permitted
in the ITS is exceeded. See 50 C.F.R. §402.14(i)(3)-(4); Ctr. for
Biological Diversity, 698 F.3d at 1108. "When reinitiation of
consultation is required, the original biological opinion loses its
validity, as does its accompanying incidental take statement, which
then no longer shields the action agency from penalties for
takings." Ctr. for Biological Diversity, 698 F.3d at 1108 (citing
Allen, 476 F.3d at 1037); see also Arizona Cattle Growers, 273 F.3d
at 1249 (each ITS "set[s] forth a 'trigger' that, when reached,
results in an unacceptable level of incidental take, invalidating
the safe harbor provision, and requiring the parties to re-initiate
consultation").
That §9 liability is only narrowly circumscribed by biological
33

opinions

and

incidental

take

statements

is

reflected

in

the

relevant caselaw. For example, in Mt. Graham Red Squirrel v. Espy,
the Ninth Circuit concluded that there was no §9 liability for
deaths of protected squirrels during a trapping and tagging program
authorized by the United States Forest Service because a biological
opinion addressed the relevant actions, and because the squirrel
deaths did not exceed the limits in the incidental take statement.
See 986 F.2d 1568, 1580 (9th Cir. 1993). Similarly, in Oregon Wild
v. Connor, the United States District Court for the District of
Oregon determined that §9 claims were moot, but only because a
biological opinion and incidental take statement had been issued
covering all challenged actions impacting endangered salmon, and
the agency was acting in compliance with the terms and conditions
of the incidental take statement. See No. 6:09-CV-00185-AA, 2012 WL
3756327, at *1-*3 (D. Or. Aug. 27, 2012). Likewise, in Strahan v.
Linnon, a judge of this Court determined, on a motion for summary
judgment, that declaratory and injunctive relief under §9 were not
warranted

where

United

States

Coast

Guard

admitted

it

had

previously taken endangered whales and implemented measures in a
newly promulgated biological opinion to protect whales in the
future. See 967 F. Supp. at 599-602 (Woodlock, J.).19
19

Cf. Oregon Natural Desert Ass'n v. Tidwell, 716 F. Supp. 2d
982, 1005 (D. Or. 2010) (in case involving United States Forest
Service grazing permits, noting that exceedance of take limits in
34

In the instant case, the Navy has submitted its Annual Navy
Training and Navy AFAST BiOps, each of which contains an ITS
authorizing incidental take of Federally Protected Whales. However,
defendants have submitted no evidence concerning whether they are
acting in compliance with these biological opinions or their
associated incidental take statements. For example, the Navy has
not submitted any of the range complex monitoring and exercise
reports that it is required to submit to NMFS pursuant to its Navy
Training BiOps. The Navy also has not provided any of the AFAST
reports or individual exercise reports required by the Navy AFAST
BiOps.

As

the

incidental

take

statements

attached

to

these

biological opinions state, such reports must be submitted to NMFS
for the Navy "to be exempt from the prohibitions of section 9 of
the Endangered Species Act." 2011 Annual Navy Training BiOp at 335;
see also 2011 Annual Navy AFAST Biop at 189-191; 2010 Annual Navy
AFAST Biop at 209-211; 2009 Annual Navy AFAST Biop at 206-208.
Moreover, when liberally construed because it was filed by

Forest Service's ITS would invalidate the safe harbor provision and
subject the agency to §9 liability, but that "plaintiffs must still
demonstrate that take has occurred"); S. Yuba River Citizens League
v. Nat'l Marine Fisheries Serv., 629 F. Supp. 2d 1123, 1131-34
(E.D. Cal. 2009) (discussing citizen suits and §9 liability for
violating ITSs and causing take); Ctr. for Marine Conservation v.
Brown, 917 F. Supp. 1128 (S.D. Tex. 1996) (determining that takings
in excess of ITS limits were not prohibited takings under ESA §§7
and 9 provided that the agency was otherwise acting within the
terms and conditions of the incidental take statement).
35

plaintiff

pro

se,

the

Complaint

contains

factual

allegations

asserting, in essence, that the Navy is not acting in compliance
with the terms of its incidental take statements. See Merlonghi,
620 F.3d at 54; Aguilar, 510 F.3d at 8. For example, the Complaint
states that defendants have failed to record and report on injuries
to Federally Protected Whales. See Compl. §§19, 24. The Complaint
also asserts that Navy vessels and training operations routinely
injure,

kill,

and

harass

Federally

Protected

Whales

by

ship

strikes, disturbances associated with Navy ships and equipment, and
discharges of bombs and other ordnance. See id. at 1-2, ¶¶3-4, 15,
18-21, 23-25, 27-29, 31-32, 34-36. The Navy has not submitted any
evidence
regarding

to

the

the

contrary.

actual

Nor

impact

of

has
its

it

submitted

operations

any
on

reports

Federally

Protected Whales.
None of the Navy's incidental take statements authorize takes
stemming from ship strikes or vessel traffic. None authorize any
incidental whale deaths. The only authorized takes are sonarrelated

harassments,

and

two

annual

underwater

detonation

harassments for both humpback and fin whales in the Virginia Capes
Range Complex. The Complaint, therefore, in essence alleges that
unauthorized incidental takes are occurring and there is, at
present, no evidence to refute these contentions. Such allegations,
if proved, would require reinitiation of consultation, would render
36

the Navy's relevant biological opinions and ITSs invalid, and would
deprive the Navy of §9 immunity for such takes. See Ctr. for
Biological Diversity, 698 F.3d at 1108; Arizona Cattle Growers, 273
F.3d at 1249.
Moreover, as discussed in more detail below, it remains
unclear, based on the evidence before the court, whether the Navy's
biological opinions and incidental take statements cover all of the
Navy's actions along the Atlantic coast. Any takings resulting from
its activities that were not addressed in the biological opinions
would also be subject to §9 liability.
Accordingly, because there are material jurisdictional facts
in dispute and defendants have not shown that they are entitled to
prevail as a matter of law. See Torres-Negrón, 504 F.3d at 163. The
court concludes, therefore, that defendants have not satisfied
their heavy burden to show that plaintiff's ESA §9 claim in Count
I is moot. See Mangual, 317 F.3d at 60.
B. Count II - Violation of ESA §9 for Harming the North
Atlantic Right Whale by Adversely Altering Critical Habitat
Count II of the Complaint alleges that defendants are harming
the North Atlantic right whale by adversely altering its designated
critical habitat and, therefore, violating the take provision of §9
of the ESA. In their original motion to dismiss, defendants
contended that this claim was moot because there can be no "take"

37

of designated critical habitat. In the Renewed Motion to Dismiss,
they contend that Count II is merely a subset of the harms
articulated in Count I, and is likewise moot.
Defendants have not shown that they are entitled to judgment
as a matter of law because degradation of critical habitat may, in
fact, lead to violations of ESA §9. As explained earlier, ESA §9
makes

it

unlawful

to

"take"

any

listed

species.

See

ESA

§9(a)(1)(B), 16 U.S.C. §1538(a)(1)(B). The term "'take' means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect." ESA §3(19), 16 U.S.C. §1532(19). The NMFS has defined
"harm" as an act "includ[ing] significant habitat modification or
degradation which actually kills or injures fish or wildlife by
significantly impairing essential behavioral patterns, including,
[sic]

breeding,

spawning,

rearing,

migrating,

feeding

or

sheltering." 50 C.F.R. §222.102; see also Sweet Home, 515 U.S. at
690-708 (upholding FWS regulation 50 C.F.R. §17.3 that included
"habitat modification" in the definition of "harm"). The NMFS also
interprets "harassment" as meaning "an intentional or unintentional
human act or omission that creates the probability of injury to an
individual animal by disrupting one or more behavioral patterns
that are essential to the animal's life history or its contribution
to

the

population

the

animal

represents."

Programmatic

Navy

Training BiOp at 211. Therefore, modification or degradation of the
38

North Atlantic right whale's designated critical habitat may lead
to unlawful takes of North Atlantic right whales under ESA §9. See
Greenpeace Found. v. Mineta, 122 F. Supp. 2d at 1133-34; Greenpeace
Found. v. Daley, 122 F. Supp. 2d 1110, 1121 (D. Haw. 2000); see
also Sweet Home, 515 U.S. at 690-708.
In addition, the Complaint, liberally construed, alleges
ongoing degradation of designated critical habitat for the North
Atlantic

right

whale

causing

injury

or

harm

to

that

whale

population. See Compl. at 1-2, ¶¶13, 31. For the purposes of the
Renewed Motion to Dismiss, in the absence of any evidence to the
contrary,

these

allegations

are

being

credited

as

true.

See

Merlonghi, 620 F.3d at 54; Aguilar, 510 F.3d at 8.
In view of the foregoing, the court concludes that there are
material jurisdictional facts in dispute and that defendants have
not shown that they are entitled to prevail as a matter of law
concerning Count II of the Complaint. See Torres-Negrón, 504 F.3d
at 163. In addition, even if the court were to assume that
plaintiff's designated critical habitat claim is a subset of
plaintiff's other §9 claim, for the reasons discussed earlier these
claims are not moot. Accordingly, the court finds that defendants
have not satisfied their heavy burden to show plaintiff's ESA §9
claim in Count II is moot. See Mangual, 317 F.3d at 60.

39

C. Count III - Violation of ESA §7
Count III of the Complaint alleges that the Navy violated its
obligations

under

§7

of

the

ESA

by

failing

to

enter

into

consultation with the NMFS concerning the impact of its vessel and
military operations on Federally Protected Whales. Defendants
contend that this claim is moot because the Navy has entered into
formal consultation regarding its activities, and the court can no
longer grant the declaratory and injunctive relief plaintiff seeks.
As noted previously, §7 of the ESA contains both substantive
and procedural protections for listed species. Substantively, it
requires federal agencies to "insure that agency action 'is not
likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or
adverse modification of habitat of such species.'" Water Keeper
Alliance,

271

F.3d

at

25

(quoting

ESA

§7(a)(2),

16

U.S.C.

§1536(a)(2)); see also Pyramid Lake Paiute Tribe v. U.S. Dept. of
Navy, 898 F.2d 1410, 1414-15 (9th Cir. 1990) ("Pyramid Lake").
Procedurally, §7 establishes the methods of informal and formal
consultation "to determine whether endangered species or critical
habitat are jeopardized by proposed agency action and whether this
adverse impact may be avoided or minimized." Water Keeper Alliance,
271 F.3d at 25 (citing ESA §7, 16 U.S.C. §1536); see also Pyramid
Lake, 898 F.2d at 1414-15. The court considers first the procedural
40

and then the substantive issues relating to whether plaintiff's §7
claim is moot.
1. Procedural Obligations
The Navy contends that it has engaged in both informal and
formal consultation on its Atlantic coast activities that may
impact Federally Protected Whales, rendering plaintiff's §7 claim
moot. These activities include the Navy's training and AFAST
operations, installation of its Undersea Warfare Training Range,
and the Navy's DDG 51 Class Sea Trials. The Navy contends that
these

four

consultations

address

the

Navy's

ongoing

military

readiness activities involving vessel speeds over 10 knots in
action areas covering the entire length of the Atlantic coast. See
MacDuffee Aff. ¶¶3-8.
Section 7 claims seeking declaratory relief and injunctive
relief such as court ordered consultation are moot if the desired
consultation has already occurred, even where it was initiated
after the lawsuit was filed. See Forest Guardians v. Johanns, 450
F.3d 455, 461-63 (9th Cir. 2006); Voyageurs Nat'l Park Ass'n v.
Norton, 381 F.3d 759, 765 (8th Cir. 2004); S. Utah Wilderness
Alliance v. Smith, 110 F.3d 724, 727-30 (10th Cir. 1997).20 However,
20

See also Defenders of Wildlife v. Jackson, 791 F. Supp. 2d
96, 108-14 (D.D.C. 2011); Oregon Natural Desert Ass'n, 716
F. Supp. 2d at 994-95; Oceana, Inc. v. Evans, C.A. No.
03-10570-GAO, 2004 WL 1730340, at *3-*4 (D. Mass. July 30, 2004);
Greenpeace Found. v. Mineta, 122 F. Supp. 2d at 1127-29; Sw. Ctr.
41

such claims are not moot where the consultation does not encompass
the entire range of challenged activities, where a continuing
practice is at issue that involves ongoing violations of the ESA,
where

future

injunctive

relief

may

be

available,

or

where

declaratory relief would serve some other valid purpose. For
example,

in

Forest

Guardians

v.

Johanns,

the

Ninth

Circuit

concluded that plaintiff's ESA claims seeking reinitiation of
consultation were not rendered moot by reinitiation having already
occurred because a declaratory judgment that the United States
Forest Service had violated the ESA by failing to comply with
monitoring requirements would help remedy the effects of the
agency's violations and ensure that similar violations would not
occur in the future. See 450 F.3d at 462-63; see also Oregon
Natural Desert Ass'n, 716 F. Supp. 2d at 994-95 (concluding that
reinitiation of formal consultation did not moot ESA §7 claim of
failure to consult where declaratory and future injunctive relief
remained available). Similarly, in Greenpeace Foundation v. Mineta,
the court determined that although reinitiation of consultation had
mooted two ESA claims, plaintiff could still challenge the adequacy
of current biological opinions, and could seek judicial oversight
of

the

agency's

actions

and

implementation

plans.

See

122

for Biological Diversity v. U.S. Forest Serv., 82 F. Supp. 2d 1070,
1079 (D. Ariz. 2000); Lone Rock Timber Co. v. U.S. Dep't of
Interior, 842 F. Supp. 433, 438-39 (D. Or. 1994).
42

F. Supp. 2d at 1127-29; see also Defenders of Wildlife, 791
F. Supp. 2d at 108-14 (concluding that although reinitiation of
formal consultation mooted certain ESA claims relating to failure
to consult, the court could still provide injunctive relief by
enjoining certain agency actions until formal consultation was
completed).
In the instant case, the Navy has engaged in significant and
meaningful consultation with the NMFS regarding its operations. As
described earlier, the Navy has engaged in §7 consultation on its
training and AFAST operations, its Undersea Warfare Training Range,
and its DDG 51 Class Sea Trials, resulting in associated biological
opinions, incidental take statements, and concurrence letter.21
These documents contain extensive analyses of the impacts of these
Naval actions on the Federally Protected Whales. The biological
opinions and incidental take statements require a variety of
mitigation and protective measures for Federally Protected Whales,
including

special

operating

procedures

and

vessel

speed

restrictions, as well as monitoring and reporting of both whale and
Naval activities. They also provide for specific protections for

21

See Defenders of Wildlife v. U.S. Dep't of Navy, --- F.
Supp. 2d ----, 2012 WL 3886412, at *24 (S.D. Ga. Sep. 6, 2012)
(determining at summary judgment that Navy had complied with
consultation obligations under ESA on its installation of the
Undersea Water Training Range, including with regard to North
Atlantic right whale).
43

the North Atlantic right whale and its designated critical habitat.
Such conditions are similar, but not identical, to the forms of
relief

sought

by

the

plaintiff,

which

include

vessel

speed

restrictions and safety radii from known whales. In addition, the
geographic

range

of

the

activities

considered

in

these

consultations encompasses virtually all of the Atlantic coast of
the

United

States,

including

the

entirety

of

the

designated

critical habitat of the North Atlantic right whale.22
22

The Navy Training BiOps cover training actions in waters in
and adjacent to: the Northeast Operating Areas, which run from the
Canadian border to Delaware Bay; the Virginia Capes Range Complex,
which extends from Delaware to North Carolina; the Cherry Point
Range Complex, which is off the coast of North Carolina; and the
Jacksonville Range Complex, which runs from approximately Camp
Lejeune in North Carolina to Daytona Beach, Florida. See
Programmatic Navy Training BiOp at 2, 4, 9, 17, 24, 31-35, 40, 73,
128. These operating areas and range complexes extend east off the
Atlantic coastline more than 50 nautical miles. See id. at 9, 24,
35, 73. Similarly, the Navy AFAST BiOps cover activities occurring
along the Atlantic coast of the United States from waters within
and adjacent to the Boston Complex Operating Area in the Gulf of
Maine, to the Jacksonville-Charleston Operating Areas, and further
south to approximately 23 degrees north latitude, which is south of
the southern tip of Florida. See Programmatic Navy AFAST BiOp at 34, 14-15, 59. The AFAST action areas extend east from the Atlantic
coastline to 45 degrees west longitude, which is approximately
perpendicular to the southern tip of Greenland. See id. at 14. In
addition, the Programmatic USWTR BiOp covers the Navy's proposed
installation of its Undersea Warfare Training Range in the
Jacksonville Range Complex off the coast of Florida. See
Programmatic Navy USWTR BiOp at 1, 3-4. The DDG 51 Class Sea Trials
Concurrence Letter also covers testing occurring in the Gulf of
Maine, the Great South Channel, and waters south of Georges Bank.
See DDG 51 Class Sea Trials Concurrence Letter at 1-3.
The action areas for these Navy consultations include the
entirety of the designated critical habitat for the North Atlantic
44

Nevertheless, the Navy has not provided evidence that proves
that these consultations encompass the full scope of its activities
along the Atlantic coast. Therefore, material jurisdictional facts
remain in dispute. See Torres-Negrón, 504 F.3d at 163. For example,
the Navy contends that its consultations, in particular the Navy
Training BiOps, consider the impact of ordinary Naval vessel
traffic in addition to training operations on Federally Protected
Whales, such as transits to and from ports along the Atlantic
coast. See, e.g., 2011 Navy Training BiOp at 141-144, 282-288
(discussing mitigation measures relating to Atlantic coast port
transits and right whales); February 2009 Addendum to the August
2008 Biological Evaluation for East Coast Range Complexes at 8-11
(discussing vessel transits in East Coast ports). However, although
such ship traffic is discussed in portions of the Navy Training
BiOps, the parts of these BiOps that estimate the possibility of
ship strikes to Federally Protected Whales due to Navy operations
do not take such ship traffic into account. See, e.g., 2011 Navy
Training BiOp at 262 (in estimating the total number of "steaming
days" at sea for its proposed actions, noting that "[v]essel
movements unrelated to training activities — for example, for storm
right whale, which is Cape Cod Bay, Massachusetts; the Great South
Channel, which runs between Nantucket Shoals and Georges Bank east
and south of Cape Cod, Massachusetts; and the coastal waters of the
southeastern United States between Brunswick, Georgia, and Cape
Canaveral, Florida. 50 C.F.R. §203 & §224.105, Figs. 1-3.
45

evasion, deployment transits, and movements in basins to rearrange
ships

for

repairs,

berthing,

loading,

and

off-loading

from

designated piers — would increase these estimates.").23 These data
form the basis for the conclusions in each Navy Training BiOp and
ITS that the Navy's actions are likely to adversely affect, but are
not likely to jeopardize the continued existence of, the Federally
Protected Whales. The court concludes, therefore, that the Navy has
not satisfied its burden to show that there are no material
jurisdictional

facts

in

dispute

because

the

Navy

has

not

demonstrated that its consultation encompasses all Naval ship
movements along the Atlantic coast. See Torres-Negrón, 504 F.3d at
163.
In addition, there may still be meaningful relief available to
the plaintiff. The Complaint alleges that defendants continue to
harm Federally Protected Whales by ship strikes. In the absence of
any conflicting evidence, the court must credit these allegations
as true for the purposes of the Renewed Motion to Dismiss. See
Merlonghi, 620 F.3d at 54; Aguilar, 510 F.3d at 8. These factual

23

See also February 2009 Addendum to the August 2008
Biological Evaluation for East Coast Range Complexes at 8
(providing data on estimated steaming days per year for training
operations and noting that "non-training related vessel movements
could occur and are unpredictable as to their occurrence in a year,
such as, but not limited to, storm evasion, deployment transits,
and movements in the basin to rearrange for repairs[,] berthing[,]
loading[, and] off-loading from designated piers").
46

allegations, if proved, may justify declaratory relief that would
ultimately lead to, at a minimum, reinitiation of consultation.
Similarly,

the

Complaint

seeks

injunctive

relief

that

would

prohibit the Navy from operating its ships within 1,000 yards of
Federally Protected Whales and from traveling over 10 knots within
two miles of a sighted or known location of a Federally Protected
Whale. Compl. ¶¶1, 3-4, I-VII. Although the Navy's biological
opinions and incidental take statements contain protective measures
that include both safety radii from known whales and vessel speed
restrictions, the protective measures in those documents are not as
broad as those sought by the plaintiff. See, e.g., Programmatic
Navy Training BiOp at 48, 60, 235 (providing that Navy ships should
attempt to keep at least 500 yards away from known whales, subject
to ship safety). Accordingly, the court concludes that, depending
on the merits of his claims, there may be meaningful relief
available to the plaintiff. See Forest Guardians, 450 F.3d at 46263; Oregon Natural Desert Ass'n, 716 F. Supp. 2d at 994-95.
The facts that the biological opinions do not definitively
address the entire range of the challenged Naval activities and
that there may be meaningful relief available to the plaintiff
reinforce the conclusion that there are material jurisdictional
facts in dispute and that defendants have not showed that they are
entitled to prevail as a matter of law. See Torres-Negrón, 504 F.3d
47

at 163. The court finds, therefore, that defendants have not
satisfied their heavy burden to show plaintiff's §7 claim is moot.
See Mangual, 317 F.3d at 60; see also Gulf of Maine Fishermen's
Alliance, 292 F.3d at 88; Forest Guardians, 450 F.3d at 462-63;
Northwest Envtl. Def. Ctr., 849 F.2d at 1244-45.
2. Substantive Obligations
Even if the court were to conclude that defendants had
satisfied their procedural duties, they would still be required to
satisfy their substantive §7 obligations because a "federal agency
cannot abrogate its responsibility to ensure that its actions will
not jeopardize a listed species" merely by relying on a biological
opinion. Pyramid Lake, 898 F.2d at 1415. Reliance on a biological
opinion

that

is

legally

flawed

or

that

fails

to

consider

information that would undercut the opinion's conclusions violates
the substantive duties imposed by ESA §7. See Ctr. for Biological
Diversity, 698 F.3d at 1128; Wild Fish Conservancy v. Salazar, 628
F.3d 513, 532 (9th Cir. 2010).
The Navy Training BiOps calculate the future likelihood of
ship strikes based on the number of known Navy ship strikes over a
60-year period and the estimated number of steaming days over that
period, while conceding that estimates of the number of steaming
days are "almost certainly incorrect." Programmatic Navy Training

48

BiOp at 230-231.24 As discussed earlier, these data do not contain
estimates for non-training vessel movements such as storm evasions,
deployment transits, or repairs, which the Training BiOps recognize
"would increase these estimates" if included. Id. at 213, 229-30.
Similarly, the Navy AFAST BiOps do not attempt to calculate the
likelihood of ship strikes due to AFAST activities, but instead
conclude that the "probability of a collision seem[s] fairly small
given the [mitigation and protective] measures that are in place."
Programmatic Navy AFAST BiOps at 132-33, 142. Based on the evidence
provided by defendants, the court cannot determine whether the Navy
has satisfied its substantive obligations under §7 of the ESA by
relying on these biological opinions.
Moreover, the Complaint contains specific factual allegations
about recent harms to right whales that are not directly addressed
in the relevant biological opinions. See Compl. ¶¶3, 19-21, 23. If
24

For purposes of these calculations, the Navy Training BiOps
assume that the number of annual steaming days between 2006 and
2007 are representative of the annual number of steaming days
between 1945 and 2009, but note that "this assumption is almost
certainly incorrect" and that the data on actual steaming days are
not available. Programmatic Navy Training BiOp at 231. Notably, the
Navy Training BiOps estimate that the likelihood of its vessels not
striking a whale is 99.99% in any given year and 99.97% over a five
year period, but elsewhere note that there have been at least seven
confirmed ship strikes of whales by Navy vessels along the Atlantic
coast in the past 60 years. See id. at 230-231. The Navy Training
BiOps also state that they "do not have the information necessary"
to estimate the probability of a ship strike using the "most
relevant" methodology identified in the biological opinion. Id. at
230.
49

proven, these allegations would undercut the Navy's biological
opinions and incidental take statements. In the absence of other
evidence to the contrary, these allegations must be credited as
true for the purposes of the Renewed Motion to Dismiss. See
Merlonghi, 620 F.3d at 54; Aguilar, 510 F.3d at 8. Therefore, the
court concludes that defendants have not satisfied their heavy
burden to show that plaintiff's ESA §7 claims are moot. See
Mangual, 317 F.3d at 60; see also Torres-Negrón, 504 F.3d at 162.
V. CONCLUSION
In view of the foregoing, the court concludes that defendants
have not proven that plaintiff's claims are moot because there are
material jurisdictional facts in dispute and defendants have not
demonstrated that they are entitled to prevail as a matter of law.
See Torres-Negrón, 504 F.3d at 163. The court further finds that
additional discovery is necessary to address not only the merits of
plaintiff's claims but the issues identified in this Memorandum and
Order concerning mootness. Cf. Rivera-Torres, 502 F.3d at 10 (at
summary judgment, additional discovery appropriate where party can
show good cause, a plausible basis for believing that additional
facts exist and can be retrieved within a reasonable time, and an
explanation of how those facts may defeat the pending motion).
Accordingly, it is hereby ORDERED that:
1. Defendants' Renewed Motion to Dismiss is DENIED.
50

2. By February 15, 2013, the parties shall confer and report,
jointly if possible but separately if necessary, on a plan and
schedule necessary to complete discovery on both the issue of
mootness and the merits of the case.
3. A Scheduling Conference shall be held on February 28, 2013,
at 3:30 p.m. Representatives of the parties with full settlement
authority shall attend.
4. After discovery is complete, in consultation with the
parties, the court will decide whether to establish a schedule for
motions for summary judgment or whether to proceed directly to
trial.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

51