National Resources Defense Council, Inc. v. Winter ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATURAL RESOURCES DEFENSE 
COUNCIL, INC.; THE INTERNATIONAL
FUND FOR ANIMAL WELFARE;
CETACEAN SOCIETY INTERNATIONAL;
LEAGUE FOR COASTAL PROTECTION;
OCEAN FUTURES SOCIETY; JEAN-
MICHEL COUSTEAU,
Plaintiffs-Appellees,
v. No. 07-56157
DONALD C. WINTER, Secretary of D.C. No.
the Navy; UNITED STATES CV-07-00335-FMC
DEPARTMENT OF THE NAVY; CARLOS  Central District of
California,
M. GUTIERREZ, Secretary of the
Department of Commerce; Santa Ana
NATIONAL MARINE FISHERIES ORDER AND
SERVICES; WILLIAM HOGARTH, OPINION
Assistant Administrator for
Fisheries of the National
Oceanographic and Atmospheric
Administration; CONRAD C
LAUTENBACHER, JR., Administrator
of the National Oceanographic and
Atmospheric Administration,
Defendants-Appellants.

Filed August 31, 2007
Before: Andrew J. Kleinfeld, Consuelo M. Callahan, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Kleinfeld;
Dissent by Judge Milan D. Smith, Jr.
11899
NRDC v. WINTER 11901
COUNSEL
Kathryn E. Kovacs and Allen M. Brabender, Appellate Sec-
tion, U.S. Department of Justice, Environment & Natural
Resources Division, Washington, D.C., for the federal
defendants-appellants.
Richard B. Kendall, Alan J. Heinrich, and Gregory A. Fayer,
Irell & Manella, LLP, Los Angeles, California; and Joel R.
Reynolds, Andrew E. Wetzler, and Cara A. Horowitz, Natural
Resources Defense Council, Santa Monica, California, for the
plaintiffs-appellees.
11902 NRDC v. WINTER
OPINION AND ORDER
KLEINFELD, Circuit Judge:
The Navy and environmental advocacy organizations have
battled for years about whether Navy training using sonar is
too harmful to the environment, particularly whales. The
Navy uses something called medium frequency active sonar,
which basically bounces a loud noise off the hulls of
extremely quiet submarines to detect their presence. The loud
noise may be quite harmful to whales and other marine mam-
mals. In a previous round of this litigation, the district court
had approved a settlement that allowed Navy sonar training to
proceed, but required mitigation measures. The measures con-
sisted of such precautions as requiring some sailors to be on
deck looking for whales, and reducing the decibel level when
whales were present, weather prevented seeing whether any
whales were around, or “surface ducting” would let the noise
carry more.1
In this round of the litigation, the Navy proposed to use
medium frequency active sonar in training exercises off the
coast of Southern California without mitigation measures. The
record does not show why the Navy does not propose the mit-
igation measures it has previously used. The district court
issued a preliminary injunction under the National Environ-
mental Policy Act2 and the Coastal Zone Management Act.3
The injunction prohibits all use of medium frequency active
sonar off the coast of Southern California during the fourteen
large training exercises from 2007 to 2009.4 The district court
did not tailor the injunction in any way, such as by requiring
1
See NRDC v. Winter, Settlement Agreement, CV-06-4131-FMC (C.D.
Cal. July 7, 2006).
2
42 U.S.C. §§ 4321-4347.
3
16 U.S.C. § 1451 et seq.
4
NRDC v. Winter, Order, CV-07-00335-FMC at 20 (C.D. Cal. Aug. 7,
2007).
NRDC v. WINTER 11903
the mitigation measures it had found sufficient before. The
district court offers no more explanation of why the training
could not be allowed to proceed with mitigation measures
than the Navy does for why it does not want to commit itself
to using mitigation measures. There is no explanation in the
record for the breadth of the Navy’s position or of the district
court’s injunction.
Medium frequency active sonar has proven to be the most
effective method of detecting quiet-running diesel-electric
submarines by emitting sound underwater at extreme pressure
levels. The 2007 to 2009 exercises at issue were designed to
train the full array of land, sea, undersea, and air components
of the Pacific Fleet to perform successfully in complex, coor-
dinated combat missions. An advocacy group, the Natural
Resources Defense Council, and four other plaintiffs filed this
action against the Navy, alleging that by finding no significant
environmental impact after an environmental assessment,
instead of preparing a full environmental impact statement,
and by concluding that there was no effect on coastal
resources, the Navy violated the National Environmental Pol-
icy Act,5 the Endangered Species Act,6 the Administrative
Procedures Act,7 and the Coastal Zone Management Act.8
Finding that the plaintiffs had demonstrated a high probability
of success on the merits of all claims save the Endangered
Species Act claim and a “near certainty” of irreparable harm
to the environment, the district court enjoined the Navy from
using medium frequency sonar during the fourteen challenged
SOCAL training exercises.9 The Navy filed an emergency
motion for stay of the injunction pending appeal, which we
grant.
5
42 U.S.C. §§ 4321-4347.
6
16 U.S.C. § 1536.
7
5 U.S.C. § 551 et seq.
8
16 U.S.C. § 1451 et seq.
9
NRDC v. Winter, Order, CV-07-00335-FMC (C.D. Cal. Aug. 7, 2007).
11904 NRDC v. WINTER
[1] Two standards affect our determination, the standard
applicable to district courts for preliminary injunctions, and
the standard for appellate courts for stays pending appeal. The
district court must apply a four part standard, or a sliding
scale. What is critical to our review for abuse of discretion10
is that the district court must consider not only the possibility
of irreparable harm, but also, in appropriate cases, the public
interest. The public interest is not the same thing as the hard-
ship to the party against whom the injunction was issued. Bal-
ance of hardships is the third factor, and the public interest is
the fourth factor. They are separate:
Under the traditional test, a plaintiff must show: (1)
a strong likelihood of success on the merits, (2) the
possibility of irreparable injury to plaintiff if prelimi-
nary relief is not granted, (3) a balance of hardships
favoring the plaintiff, and (4) advancement of the
public interest (in certain cases). The alternative test
requires that a plaintiff demonstrate either a combi-
nation of probable success on the merits and the pos-
sibility of irreparable injury or that serious questions
are raised and the balance of hardships tips sharply
in his favor. These two formulations represent two
points on a sliding scale in which the required degree
of irreparable harm increases as the probability of
success decreases. They are not separate tests but
rather outer reaches of a single continuum.11
The district court was required to consider, not only “balance
of hardships” as between the plaintiffs and the Navy as an
Executive Branch agency, but also the “public interest” in
having a trained and effective Navy. We customarily give
10
See Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752
(9th Cir. 1982).
11
Taylor v. Westly, 488 F.3d 1197, 1200 (9th Cir. 2007) (emphasis
added).
NRDC v. WINTER 11905
considerable deference to the Executive Branch’s judgment
regarding foreign policy and national defense.12
[2] The Supreme Court in Hilton v. Braunskill13 articulated
the similar standard appellate courts are required to apply for
stays of civil judgments pending appeal.14 This standard
requires us to consider “where the public interest lies” sepa-
rately from and in addition to “whether the applicant [for stay]
will be irreparably injured absent a stay:”15
The factors regulating issuance of a stay [include]:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.16
12
E.g., Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) (noting that
“unless Congress specifically has provided otherwise, courts traditionally
have been reluctant to intrude upon the authority of the Executive in mili-
tary and national security affairs.”). The dissent argues that Egan was “not
an environmental case” and that it relied heavily on “the President’s
authority as Commander in Chief.” True, NEPA applies to the Navy, but
that is not a distinction that makes a difference. There is no exception to
the President’s authority as Commander in Chief for environmental cases.
13
Hilton v. Braunskill, 481 U.S. 770 (1987).
14
The dissent accurately notes that Hilton involved a stay of a writ of
habeas corpus, but erroneously argues that the Hilton standard would
therefore not apply to an environmental case. The Court in Hilton says that
it is using “the traditional standards governing stays of civil judgments”
to interpret the rules for stays of writs of habeas corpus, id. at 774, and
“the factors regulating the issuance of a stay are generally the same,” id.
at 776. That leaves no room for the dissent’s position that they are not
“generally the same” or that, as the dissent says, “Hilton does not apply
here.”
15
Id. at 776.
16
Id. (emphasis added); see Fed. R. Civ. P. 62(c); Fed. R. App. P. 8(a).
11906 NRDC v. WINTER
Hilton emphasizes that even “failing” a strong likelihood of
success on the merits, the party seeking a stay may be entitled
to prevail if it can demonstrate a “substantial case on the mer-
its” and the second and fourth factors militate in its favor.17
The district court did not give serious consideration to the
public interest factor. All our dissenting colleague can come
up with is an oblique reference in the oral discussion preced-
ing the order. All the order contains is a conclusory remark
about “the harm the Defendants will suffer.” That is the third
factor, not the fourth. There is not a word in the order about
the interest of the public, as distinguished from the interest of
the Navy, in war preparedness:18
The Court is also satisfied that the balance of hard-
ships tips in favor of granting an injunction, as the
harm to the environment, Plaintiffs, and public inter-
est outweighs the harm that Defendants would incur
if prevented from using MFA sonar, absent the use
of effective mitigation measures, during a subset of
their regular activities in one part of one state for a
limited period.19
The reference to “public interest” by the district court extends
only to the interest in protecting marine mammals, especially
beaked whales, not the interest in national defense.
[3] The public does indeed have a very considerable inter-
est in preserving our natural environment and especially rela-
tively scarce whales.20 But it also has an interest in national
defense. We are currently engaged in war, in two countries.
17
Hilton v. Braunskill, 481 U.S. 770, 778 (1987).
18
We reviewed classified documents submitted by the Navy to the dis-
trict court and considered them in coming to our decision.
19
NRDC v. Winter, Order, CV-07-00335-FMC at 19 (C.D. Cal. Aug. 7,
2007).
20
The main argument of the dissent is that NEPA applies to the Navy.
We do not disagree.
NRDC v. WINTER 11907
There are no guarantees extending from 2007 to 2009 or at
any other time against other countries deciding to engage us,
or our determining that it is necessary to engage other coun-
tries. The safety of the whales must be weighed, and so must
the safety of our warriors. And of our country.
Our dissenting colleague also argues that “the Navy is free
to proceed at any time with its MFA sonar training exercises
outside the SOCAL area that are similar to conditions in the
SOCAL area.” The environmental assessment,21 though,
explains that “this particular location” matters.22 According to
that document, “[t]here is no duplicative location where land,
sea, undersea and airspace assets are controlled by military
authorities that allow full play and training by THIRD Fleet
operational actors.”23 The environmental assessment further
explains that none of the potential alternative locations,
including Alaska and Hawaii, “provide the full complement
of range infrastructure necessary to conduct typical, realistic,
coordinated COMPTUEX and JTFEX training.”24 Although
one-time training operations have been conducted off Alaska
and Hawaii, the environmental assessment says that “routine
usage of these training areas for the major exercises is infeasi-
ble.”25 Because the record offers no support for it, we respect-
fully disagree with our dissenting colleague’s implication that
the Navy ought to do whatever it needs to do someplace other
than off the coast of Southern California.
[4] The district court did not explain why a broad, absolute
21
United States Navy, Composite Training Unit Exercises and Joint
Task Force Exercises, Environmental Assessment/Overseas Environmen-
tal Assessment, Final, available at http://www.navydocuments.com/
documents/COMPTUEX-JTFEX%20EA-OEA.pdf (February 2007) (last
visited Aug. 29, 2007).
22
Id. at 2-32.
23
Id.
24
Id. at 2-33.
25
Id.
11908 NRDC v. WINTER
injunction against the use of the medium frequency active
sonar in these complex training exercises for two years was
necessary to avoid irreparable harm to the environment. The
district court’s previous approval of similar exercises subject
to mitigation measures requires some explanation, which we
cannot find in the order granting the injunction, for why that
is no longer sufficient. Nor does the Navy explain why it no
longer proposes to use these mitigation measures, a factor that
militates against its probability of full success on the merits
in district court. On appeal, though, because of the breadth of
the injunction, and the district court’s failure to consider the
fourth factor, the Navy’s probability of at least partial success
on the merits is high. At the least, the Navy presents a “substan-
tial”26 case on appeal, and the “second and fourth factors”27
militate in its favor. Applying independently on appeal our
duty under Hilton28 to consider the fourth factor, the public
interest, we are obligated to grant a stay pending appeal of the
preliminary injunction.
Our conclusion is limited to what is before us, a district
court injunction absolutely prohibiting the Navy’s use of
medium frequency active sonar in its training program rather
than tailoring the injunction with mitigation measures. We do
not suggest whether an injunction allowing the exercises but
subjecting them to mitigation measures might lead to a differ-
ent result, because no such injunction is before us. The envi-
ronmental assessment says that there would be no significant
environmental impact if the Navy used lookouts for marine
mammals, made binoculars available to the lookouts, and
reduced the noise during “surface ducting” conditions or
when it was so foggy that the lookouts would not be able to
see marine mammals.
26
See Hilton v. Braunskill, 481 U.S. 770, 778 (1987).
27
See id.28
Id. at 776.
NRDC v. WINTER 11909
Expeditious determination of this appeal can eliminate a
great deal of the risk to both our country and to marine wild-
life. Accordingly, we order expedited briefing and calendar-
ing of this appeal. The provisions of Ninth Circuit rule 31-
2.2(a) shall not apply to this appeal. A briefing schedule is set
out in a separate order. Any motions to extend time to file the
briefs will be strongly disfavored.
The Navy’s emergency motion to stay the preliminary
injunction entered by the district court on August 7, 2007 is
GRANTED.29
MILAN D. SMITH, JR., Circuit Judge, dissenting in part and
concurring in part:
I respectfully dissent to the granting of a stay of the district
court’s preliminary injunction. The district court did not abuse
its discretion when it issued a preliminary injunction against
the Navy’s use of MFA sonar during certain planned exer-
cises in the SOCAL range through January 2009.
The Navy has not shown a probability of success on the
merits of this case or raised serious questions about the mer-
its. In weighing the possibility of irreparable injury, balancing
hardships, and determining where the public interest lies, the
district court carefully considered and weighed the national
security and public interest issues presented by this case. Until
very recently, the Navy employed some environmental miti-
gation measures it now rejects in the name of national secur-
ity. Moreover, the Navy has the ability to continue training its
29
Natural Resources Defense Council’s motion to strike the “Unclassi-
fied Declaration Addendum of David Yoshihara,” submitted by
Defendants-Appellants with their reply brief, is GRANTED, because it
contains new evidence not presented to the district court. See Fed. R. App.
P. 10(a). All other motions are referred for consideration to the merits
panel.
11910 NRDC v. WINTER
personnel in the use of MFA sonar technology pending the
outcome of the merits of this case by conducting MFA sonar
exercises outside the SOCAL range. In fact, the district court
received evidence that the Navy is testing MFA sonar tech-
nology “all over the world all the time.” It is the Navy’s sharp
starboard tack from its recent training practices that has left
it in irons fighting environmental laws, not a failure by the
district court to consider national security or the public inter-
est.
On appeal, we review the issuance of a preliminary injunc-
tion for abuse of discretion. Ashcroft v. ACLU, 542 U.S. 656,
664 (2004). Under the abuse of discretion standard, a review-
ing court cannot reverse absent “a definite and firm convic-
tion that the district court committed a clear error of judgment
in the conclusion it reached upon weighing of the relevant
factors.” SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001).
The standard for determining whether to grant a stay pend-
ing appeal is similar to that applied by a district court when
considering the issuance of a preliminary injunction. Tribal
Vill. of Akutan v. Hodel, 859 F.2d 662, 663 (9th Cir. 1988).
A preliminary injunction may be issued when the moving
party demonstrates “either: (1) a likelihood of success on the
merits and the possibility of irreparable injury; or (2) that seri-
ous questions going to the merits were raised and the balance
of hardships tips sharply in [the moving party’s] favor.”
Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007)
(quoting Clear Channel Outdoor Inc. v. City of Los Angeles,
340 F.3d 810, 813 (9th Cir. 2003)).
As noted by the majority, we are also required to consider
“where the public interest lies” in certain cases. Hilton v.
Braunskill, 481 U.S. 770, 776 (1987); Taylor v. Westly, 488
F.3d 1197, 1200 (9th Cir. 2007). I respectfully differ with the
majority, however, concerning how the “public interest” con-
sideration applies in this case. Department of Navy v. Egan,
484 U.S. 518 (1988), cited by the majority for the proposition
NRDC v. WINTER 11911
that “unless Congress specifically has provided otherwise,
courts traditionally have been reluctant to intrude upon the
authority of the Executive in military and national security
matters,” is distinguishable from the facts of this case. Egan
involved the discharge of a Navy employee whose security
clearance had been denied; it was not an environmental case.
Id. at 522. The Supreme Court held that the authority to clas-
sify and control access to information bearing on national
security and to determine which individuals have the right to
access such information flows from the President’s authority
as Commander in Chief and exists apart from any explicit
congressional grant. Id. at 527. It also noted a “ ‘compelling
interest’ in withholding national security information from
unauthorized persons in the course of executive business.” Id.But “public interest” considerations in environmental cases
are very different from those in security clearance cases, and
the military has long been required to comply with NEPA and
numerous other environmental laws, even though national
security considerations have been involved. See, e.g., San
Luis Obispo Mothers for Peace v. Nuclear Regulatory Com-
mission, 449 F.3d 1016, 1035 (9th Cir. 2006), and cases cited
therein.
The majority also cites Hilton v. Braunskill, 481 U.S. 770(1987), for the proposition that even “ ‘failing’ a strong likeli-
hood of success on the merits, the party seeking a stay may
be entitled to prevail if it can demonstrate a ‘substantial case
on the merits’ and the second and fourth factors militate in its
favor.” But Hilton was a habeas corpus case, not an environ-
mental case, and deals with the standards for releasing a pris-
oner from confinement pending appeal. Id. at 775-76. The
“public interest” considered in Hilton was whether the lower
court could properly take the dangerousness of the habeas
petitioner into account as part of its decision whether to
release the petitioner pending appeal. Id. at 777. The court
concluded that the court may do so, despite the traditional
preference for release. Id. at 778. The “public interest” in this
case is very different and constitutes a weighing between the
11912 NRDC v. WINTER
“national security” public interest advocated by the Navy ver-
sus the environmental “public interest” advocated by the
Appellees. Hilton does not, in my view, permit this court to
decline to consider the requirement that the Navy show a
probability of success on the merits in order to grant a stay of
the district court’s injunction.
1. The Navy fails to meet its burden of showing probabil-
ity of success on the merits and fails to raise serious questions
going to the merits of this case. Although Congress could eas-
ily include a national security exemption in the National Envi-
ronmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347, it
has not done so. As we stated in San Luis Obispo Mothers for
Peace, 449 F.3d at 1035, “[t]here is no ‘national defense’
exception to NEPA . . . . The Navy, just like any federal
agency, must carry out its NEPA mandate to the fullest extent
possible and this mandate includes weighing the environmen-
tal costs of the [project] even though the project has serious
security implications.” Id. (quoting No GWEN Alliance v.
Aldridge, 855 F.2d 1380, 1384 (9th Cir. 1988)) (internal quo-
tation marks omitted) (emphasis added). The Navy’s Environ-
mental Assessment (“EA”) reports that the planned SOCAL
exercises may result in approximately 170,000 “takes” of
marine mammals and, according to the district court’s order,
may include “approximately 8,000 exposures powerful
enough to cause a temporary threshold shift in the affected
mammals’ sense of hearing and an additional 466 instances of
permanent injury to beaked and ziphiid whales.” Our holding
in Blue Mountains Biodiversity Project v. Blackwood, 161
F.3d 1208 (9th Cir. 1998), instructs that in order for the plain-
tiffs to prevail on a claim that the Navy must prepare an Envi-
ronmental Impact Statement (“EIS”) for the SOCAL
exercises, “a plaintiff need not show that significant effects
will in fact occur. It is enough for the plaintiff to raise sub-
stantial questions whether a project may have a significant
effect on the environment.” Id. at 1212 (internal quotation
marks and citations omitted). The district court found that the
Navy’s EA and other evidence had shown to a “near certainty
NRDC v. WINTER 11913
that the use of MFA sonar during planned SOCAL exercises
will cause irreparable harm to the environment and to plain-
tiffs’ declarants.” Accordingly, it appears at this stage of the
proceedings that the Navy will have to prepare an EIS before
it engages in its training exercises within the SOCAL area. 42
U.S.C. § 4332(2)(C); Native Ecosystems Council v. United
States Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005). The
Navy has not yet prepared an EIS, and it has not yet offered
any legally viable defense to the EIS preparation requirement.
Similarly, the Navy failed to submit its sonar activities for
a consistency determination to the California Coastal Com-
mission (“CCC”) as required by the Coastal Zone Manage-
ment Act (“CZMA”), 16 U.S.C. §1456(c)(1), and then refused
to comply with the Commission’s proposed mitigating mea-
sures, some of which are the same mitigation measures
employed by the Navy from mid-2006 to January of 2007. As
with NEPA, the Congress created no national security exemp-
tion to the CZMA, and the Navy appears to be in violation of
the CZMA. See id. The Navy has not yet offered any legally
viable defense to its failure to comply with CZMA.
Accordingly, the Navy has not met its burden of showing
probability of success on the merits and fails to raise serious
questions going to the merits of this case. The majority does
not address this required prong of the test the Navy must meet
in order to obtain a stay. Hilton does not apply here, but even
if it did, the Navy still cannot meet its burden to show that it
has a “substantial case on the merits,” as Hilton requires.
2. The Navy also fails to show that it will suffer irrepara-
ble harm if the stay is not granted or that the balance of hard-
ships tips sharply in its favor. It also fails to make the case for
a compelling public interest that overrides the Navy’s proba-
ble violations of NEPA and CZMA. From mid-2006 to Janu-
ary of 2007, the Navy used a set of environmental mitigation
measures for all MFA sonar exercises other than RIMPAC. It
adopted similar measures when it conducted MFA sonar exer-
11914 NRDC v. WINTER
cises as part of the 2006 RIMPAC near Hawaii, and added
additional protections for planned chokepoint and isobath
exercises. From mid-2006 to January of 2007, the Navy did
not operate MFA sonar within twelve nautical miles of the
coast. From mid-2006 to January of 2007, the Navy enlarged
the safety zone for marine mammals when certain significant
surface ducting conditions existed. From mid-2006 to January
of 2007, the Navy followed certain procedures during low vis-
ibility conditions, whereby if detection of a marine mammal
was not possible out to the prescribed safety zone, the Navy
would power down sonar if marine mammals were present in
the zones it could not use. From mid-2006 to approximately
January of 2007, the Navy provided focused monitoring for
mammals before, during and after chokepoint exercises.
And yet, commencing some time in early 2007, without
providing convincing (or in some cases, any) evidence com-
pelling its change in policy, the Navy has declined to continue
employing the referenced environmental mitigation measures
it used from mid 2006 to January of 2007, let alone been will-
ing to adopt the further measures sought by the CCC, that
would likely have permitted it to conduct exercises in the
SOCAL range.
There is no “national security trump card” that allows the
Navy to ignore NEPA to achieve other objectives. By declin-
ing to write a national security exemption into NEPA, Con-
gress has evidently concluded that it does not jeopardize
national security to require the military to comply with
NEPA, and the courts have agreed. See e.g., San Luis Obispo
Mothers for Peace, 449 F.3d at 1035. Moreover, unless some-
one can demonstrate that the Navy jeopardized our national
security and failed to properly train our involved military per-
sonnel by adopting the referenced environmental mitigation
measures during the period from mid-2006 to January 2007,
it is hard to imagine why implementing some of those same
environmental mitigation measures now would do so, espe-
NRDC v. WINTER 11915
cially if doing so would open the possibility of training within
the SOCAL range.
3. As further evidence that neither the Navy nor national
security will suffer irreparable harm or that the public interest
will be harmed by leaving the district court’s preliminary
injunction in place pendente lite, the Navy has already com-
pleted three of its fourteen planned SOCAL exercises sched-
uled from February 2007 to January 2009. Even more
importantly, given the limited language and scope of the
injunction, the Navy is free to proceed at any time with its
MFA sonar training exercises outside the SOCAL area that
are similar to the conditions in the SOCAL area. The majority
says this is unpersuasive because the Navy claims “there is no
duplicative location where land, sea, undersea and airspace
assets are controlled by military authorities that allow full
play and training by THIRD Fleet operational actors.” But the
district court already considered this contention by the Navy
and found as follows at the hearing for the preliminary injunc-
tion:
What is not clear from the papers nor was it ever
fully addressed in the question of the Hawaii exer-
cises is the fact that this is not the only place in the
world where this kind of testing can go on.
...
There is nothing before me to indicate there are not
other places in the world where this testing could go
on. And, in fact, in the larger lawsuit, the court has
evidence that, in fact, testing is going on all over the
world all the time.
(emphasis added).
In making these findings, the district court considered the
same classified documentation we did, as well as a far more
extensive set of documents and studies. We traditionally defer
11916 NRDC v. WINTER
to the findings of the district court concerning matters of fact.
This should particularly be true here where much of the
counter documentation of the appellees is not before us as it
was before the district court.
4. Unlike my colleagues in the majority, I am satisfied
that the district court carefully weighed national security and
public interest considerations before issuing the preliminary
injunction in this case. The record shows that the district court
reviewed certain documentation pertaining to national secur-
ity matters in camera prior to issuing its injunction. The court
transcript also shows clearly that the court carefully consid-
ered national security interests before issuing its injunction.
Well, let [me] say it is clear from your papers and
from everything that I have read that the MFA active
sonar testing is important. It’s critical to national
security. I have absolutely no problem with that con-
cept or the reality of it.
What is not clear from the papers nor was it ever
fully addressed in the question of the Hawaii exer-
cises is the fact that this is not the only place in the
world where this kind of testing can go on.
...
There is nothing before me to indicate there are not
other places in the world where this testing could go
on. And, in fact, in the larger lawsuit, the court has
evidence that, in fact, testing is going on all over the
world all the time.
So while I recognize the significance of saying these
fourteen exercises cannot be conducted the way
they’ve been proposed, which is with little or no mit-
igation, it does not mean that there will be no active
NRDC v. WINTER 11917
MFA sonar testing for our Navy. That’s not the
result here.
...
The issues are tremendously important, and it’s
never easy to balance something as significant as
safety to wildlife with issues that may hinge on
national security and injury or harm to the Navy.
I remain satisfied that the plaintiffs have established
to a near certainty that the use of MFA sonar during
planned SOCAL exercises will cause irreparable
harm to the environment and to plaintiffs’ declarants.
The court is satisfied the balance of hardships tips in
favor of granting the injunction as harm to the envi-
ronment, plaintiffs, and the public interest outweighs
harm to the defendants if they were prevented from
using MFA sonar in Southern California during
these exercises without effective mitigation mea-
sures.
(emphasis added).
In light of the district court’s actions and statements, I find
no abuse of discretion merely because the words “national
security” do not appear in the district court’s order granting
the injunction. I also respectfully note that it is the Navy that
has rejected mitigation measures, not the district court or the
plaintiffs.
The district court did not abuse its discretion in handing
down its preliminary injunction, and I respectfully dissent.
I do concur with the majority that this case should be heard
by a merits panel of our court at the earliest possible date. I
11918 NRDC v. WINTER
also concur in the granting of plaintiff’s motion to strike the
“Unclassified Declaration Addendum of David Yoshira.”