ELR Citation: ELR 20085
No(s). CV 94-2337 SVW (CTx) (C.D. Cal. Apr 26, 1994)

The court issues a preliminary injunction barring the implementation of a National Marine Fisheries Service (NMFS) regulation that would authorize an incidental taking of marine mammals under the Marine Mammal Protection Act (MMPA) during the U.S. Department of the Navy's underwater weapons testing program and a ship-shock test in the Southern California Bight. The court first holds that NMFS' interpretation of the MMPA as not requiring consideration of alternative weapons testing sites is arbitrary and capricious because it would allow NMFS to authorize projects that would result in the taking of an unnecessarily high number of marine mammals. The court holds that NMFS' failure to consider alternative sites outside the Outer Sea Testing Range (OSTR) before promulgating the final rule approving the Navy's program violates the MMPA. Moreover, the Navy's application for approval of an MMPA §101(a)(5)(A) incidental take exception to the moratorium on taking marine mammals did not establish that the weapons testing program necessitated a site within the OSTR. Furthermore, the proposed project area is in or near areas of unusually high marine mammal activity. The court next holds that even if the final rule authorizing the program is lawful, the letter of authorization for the ship-shock test violates the MMPA. The survey area for determining marine mammal density was selected in an arbitrary and capricious manner because sites further from shore were not considered. NMFS could practicably have surveyed an area further from shore. Moreover, NMFS considered only a narrow portion of the survey area because the survey was planned and performed in a manner that did not produce statistically reliable data for substantial segments of the survey area. Neither the Navy nor NMFS considered that the possible impairment of mitigation efforts that occurs with sites further from shore might be outweighed by reductions in mammal density.

The court then holds that the environmental group has shown a near-certain probability of success in showing that NMFS and the Navy violated NEPA by failing to adequately consider alternatives. Promulgation of the final rule was premised on an impermissible determination that alternatives outside the OSTR need not be considered. NMFS' issuance of the letter of authorization and the Navy's decision to proceed with the ship-shock test relied on a site-selection survey that was constructed in an arbitrary and capricious manner and that excluded reasonable alternatives that met the requirements of the proposed action. Finally, the court holds that irreparable environmental injury is sufficiently likely as a result of the MMPA and NEPA violations to warrant issuance of a preliminary injunction. The best available evidence indicates that the proposed test location in particular and much of the OSTR in general is in a region with a particularly dense marine mammal population.

Counsel for Plaintiffs
Everett L. DeLano
Natural Resources Defense Council
6310 Sanvicente Blvd., Ste. 250, Los Angeles CA 90048
(213) 934-6900

Counsel for Defendant
Charles Findlay, Brian L. Ferrell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000