LISA GODBEY WOOD, Chief Judge.
Presently before the Court are Cross-Motions for Summary Judgment filed by the Plaintiffs and the Defendants in this action. See Dkt. Nos. 73, 76. Upon due consideration, Defendants' Motion for Summary Judgment is
This action is predicated on alleged violations by one or more of the Defendants under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Plaintiffs are twelve environmental groups
The USWTR's stated purpose is to enable the Navy to train effectively in a shallow water environment at a suitable location for Atlantic Fleet anti-submarine warfare ("ASW") capable units. DON181854.
On May 13, 1996, the Navy first, published its Notice of Intent to prepare an
On June 26, 2009, after evaluating public comments on its revised DEIS, the Navy issued a Final EIS ("FEIS") for the installation and the operation of the USWTR at the preferred site in the Jacksonville Operating Area. DON181852. The Navy also prepared a Biological Assessment and initiated formal consultation with the National Marine Fisheries Service ("NMFS") pursuant to the ESA. DON160498; DON185886. The NMFS's Biological Opinion followed on July 28, 2009. NMFS AR 1731.
The Navy has conducted ASW training in the Jacksonville Operating Area for over sixty (60) years. DON185892. The current plan is to construct the USWTR within this Jacksonville Operating Area. Dkt. No. 76 at 6. Construction of the USWTR will involve the placement of undersea cables and transducer nodes in a 500-sqaure-nautical-mile area of the ocean. DON181854. Transducer nodes are acoustic devices that transmit and receive acoustic signals from ships and submarines operating within the USWTR, which allows the position of participants to be determined and stored electronically for both real-time and future evaluation. DON181857. This instrumented area would then be connected to the shore via a single trunk cable. DON181854. According to the Navy, this construction has not yet commenced, and will be completed no sooner than 2014. Dkt. No. 76 at 7 (citing DON185885).
The parties dispute the scope of the USWTR. The Navy argues that the USWTR will be constructed in a relatively small portion of the Navy's existing Jacksonville Operating Area. Dkt. No. 76 at 1. According to the Navy's Record of Decision: "Submarines, ships and aircraft all currently conduct ASW training in the JAX OPAREA and will be the principal users of the USWTR." DON185886. The Navy, therefore, argues that the USWTR is "not expected to cause any significant change to training already occurring in the area." Dkt. No. 76 at 1. Plaintiffs, in contrast, argue that the Navy's characterization of the proposed action is not accurate, as the entire point of the USWTR is to concentrate intensive ASW exercises from the vast Jacksonville Operating Area (spanning tens of thousands of square miles) into the USWTR instrumented area. Dkt. No. 80 at 2. Plaintiffs also point out that, unlike the rest of the Jacksonville Operating Area, the USWTR would involve
What is not in dispute is that the USWTR is to be constructed adjacent to the calving grounds of the North Atlantic right whale, which is "the world's most critically endangered large whale species and one of the world's most endangered mammals." DON154895. The Southeastern United States is the only known calving ground for North Atlantic right whales and is, therefore, vital to the population. DON144853. Despite protection from commercial whaling since 1935, the remaining population has failed to fully recover. DON154895. The best current estimate of minimum population is 313 whales. Id. (citing Waring et al., 2007). Due to this fragile status, and "[b]ecause of the species' low reproduction level and small population size, even low levels of human-caused mortality can pose a significant obstacle for North Atlantic right whale recovery." Id.
Plaintiffs' legal attack on the Navy occupies many fronts; but, at its core, Plaintiffs argue that the Navy has failed to adequately analyze the potential environmental impact the proposed USWTR will have on right whales and other protected species. Much of Plaintiffs' allegations against the Navy stems from Plaintiffs' belief that the Navy has recommended the Jacksonville site for the USWTR without analyzing both the installation and operation phases of the action. Dkt. No. 73. While Plaintiffs certainly argue that the Navy's installation analysis was flawed, the heart of Plaintiffs' allegations is that the Navy has committed to this site without analyzing the operations phase of the project. Id.
Specifically, Plaintiffs contend that the Navy selected the Jacksonville site without the surveys necessary to assess densities for marine mammals, including the densities of right whales in the area. Dkt. No. 73 at 4. In this regard, Plaintiffs note that right whale scientists and the Georgia Department of Natural Resources have expressed concerns with the Navy's plans to go forward without such information. Id. at 4-5. In a similar vein, Plaintiffs charge the Navy with segmenting its analysis by only conducting such research after it released its FEIS selecting Jacksonville as its preferred alternative. Id. at 5. The Navy, for its part, disputes this contention and maintains that it conducted the appropriate analysis required under federal law.
Plaintiffs' argument of unlawful segmentation also applies to the Navy's ROD, where the Navy only authorizes the installation phase of the USWTR. Plaintiffs maintain that the ROD has the practical effect of approving the $100 million dollar construction of the range, while delaying an analysis over its use. Dkt. No. 73 at 7. The Navy responds that these segmentation allegations are unfounded, as the FEIS and ROD both fully analyzed the operations and installation phases of the USWTR. The Navy also points out that the ROD does not approve the operations component because of timing considerations, not due to a lack of analysis.
As for the NMFS, Plaintiffs argue that it was derelict of its agency responsibilities.
In accordance with Plaintiffs' contention that Defendants are acting in violation of the ESA, NEPA, and APA, they brought suit in this Court on January 28, 2010. Dkt. No. 1. Plaintiffs' Original Complaint was followed shortly thereafter with an Amended Complaint. Dkt. No. 24. In this Amended Complaint, Plaintiffs ask the Court to, among other things, (1) declare that the Navy Defendants have violated both NEPA and the ESA, (2) declare that the NMFS Defendants have violated the APA and ESA, (3) vacate the Navy's FEIS and ROD, (4) vacate the NMFS's Biological Opinion, and (5) remand the FEIS, ROD, and Biological Opinions for further preparation. Dkt. No. 24 at 55. On August 22, 2011, Plaintiffs moved for summary judgment as to all of its claims. Dkt. No. 73. On October 6, 2011, Defendants filed a cross-motion for summary judgment opposing Plaintiffs' motion and seeking summary judgment on Defendants behalf. Dkt. No. 76.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute over such a fact is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.2000). Where, as here, cross-motions for summary judgment have been filed, the court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. Sun Life Assur. Co. of Canada (U.S.) v. Williams, 2008 WL 762204, at *5 (M.D.Ga. Mar. 18, 2008) (citing Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir.2005)).
The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Judicial review of the agency actions at issue, both under NEPA
The Court is not authorized to substitute its judgment for the agency's so long as the agency's conclusions are rational. Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir.2009). Instead, "[t]he Court's role is to ensure that the agency came to a rational conclusion, `not to conduct its own investigation.'" Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008) (quoting Pres. Endangered Areas of Cobb's History, 87 F.3d at 1246).
However, an agency action may be found arbitrary and capricious:
Miccosukee Tribe of Indians, 566 F.3d at 1264 (quoting Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1254 (11th Cir.2007)).
NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). Its procedures ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. Id. at § 1500.1(b); see also Wilderness Watch and Pub. Emp. for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1094 (11th Cir.2004) ("NEPA essentially forces federal agencies to document the potential environmental impacts of significant decisions before they are made, thereby ensuring that environmental issues are considered by the agency and that important information is made available to the large audience that may help to make the decision or will be affected by it."). NEPA's requirements are procedural and are designed to ensure that an agency adequately assesses the environmental impacts of actions they undertake. City of Oxford, Ga. v. Fed. Aviation Admin., 428 F.3d 1346, 1352 (11th Cir.2005); see also Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) ("NEPA imposes only procedural requirements on federal agencies with a
The mechanism implemented under NEPA to ensure that environmental information is available is the requirement that a federal agency prepare an EIS if that agency proposes "a major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The first step in the EIS process is determining whether it is necessary.
The EIS "shall provide full and fair discussion of significant environmental impacts" of a proposed action. 40 C.F.R. § 1502.1. The EIS does so by identifying the direct, indirect, and cumulative impacts of the proposed action,
Plaintiffs argue that the Navy has failed to comply with NEPA in four ways: (1) by failing to comply with 40 C.F.R. § 1502.22; (2) by unlawfully segmenting its analyses, through deferring analysis of USWTR's operation until after the construction was authorized; (3) by failing to take a "hard look" at the potential impacts that the proposed action will have on the North Atlantic right whale, manatees, and sea turtles; and (4) by including a mitigation analysis that is arbitrary and capricious-. The Court addresses each argument below.
The Code of Federal Regulations provides that when an "agency is evaluating
Plaintiffs allege that the Navy has violated 40 C.F.R. § 1502.22(a) by failing to obtain information essential to a reasoned choice among alternative locations for the USWTR. Dkt. No. 80 at 3. Specifically, Plaintiffs contend that the Navy failed to obtain essential baseline data on marine mammal populations and bottom habitat in the USWTR area prior to issuing its FEIS. Dkt. No. 73 at 10. Instead, Plaintiffs insist that the Navy only began to gather such information for the Jacksonville location in February and June 2009, leaving no time for this information to be considered by decision-makers or reviewed by the public before making a final decision on the location of the USWTR. Id.
In response, the Navy argues that it gathered and analyzed sufficient baseline information for marine mammal density and bottom habitat and, only after considering that information, made its final decision to locate the USWTR in the Jacksonville Operating Area. Dkt. No. 82 at 6. Further, the Navy argues that references made in the record noting the need for further studies do not mean that no baseline data previously existed or that the information previously relied upon was somehow insufficient to support the agency's decision. Id. Stated differently, the Navy asserts that the "mere fact that the Navy intends to do more comprehensive research in the future does not render the analysis in the EIS arbitrary or capricious." Id. at 8. The Navy does not argue that information related to baseline data on marine mammal populations and bottom habitat is not essential. Rather, the Navy submits that the information that it relied on was not incomplete or unavailable. Id. at 6. Therefore, the Court will turn to the record and discern what the Navy relied upon and determine whether that information was incomplete.
Plaintiffs' contention that the Navy illegally deferred required analysis of baseline data on marine mammal populations and bottom habitat is based upon statements made by the Navy at various points within the record that indicate the Navy's plan to conduct further analysis. For example, in its FEIS the Navy responds to concerns about the proximity of the USWTR to right whale critical habitat and breeding grounds by noting that:
DON183390; see also DON183350 (in responding to concerns that the DEIS does not include mitigation for impacts to benthic habitats, the Navy responds by stating: "The Navy is conducting bottom mapping surveys at the Jacksonville site. Data can be used to characterize potential
The Navy's plans to conduct further studies do not necessarily establish that it failed to comply with 40 C.F.R. § 1502.22. Indeed, the Court is aware of no authority within this Circuit that dictates that the Navy would be required to independently gather such baseline data under NEPA at all. As the Navy correctly points out, courts in other jurisdictions have found compliance with NEPA in instances of unknown baseline data, Gaule v. Meade, 402 F.Supp.2d 1078, 1089 (D.Alaska 2005), and in instances, such as this one, where the agency relies on previous studies for its baseline analysis. Theodore Roosevelt Conservation P'ship v. Salazar, 605 F.Supp.2d 263, 281 (D.D.C.2009), aff'd, 616 F.3d 497 (D.C.Cir.2010). Furthermore, acknowledgement on the part of the Navy that further studies would be useful does not indicate a violation of NEPA. See Churchill Cnty. v. Norton, 276 F.3d 1060, 1082 (9th Cir.2001) ("[Though a]dditional studies undoubtedly would fill in relevant details regarding groundwater resources under each of the action alternatives[,] ... the Service relied on current information, not outdated studies or technology.").
The issue presently in dispute is whether data on marine mammal populations and bottom habitat was "essential to a reasoned choice among alternatives" and whether that information was incomplete or unavailable. 40 C.F.R. § 1502.22(a). This issue does not turn on what the Navy does in the future, but rather, on what the Navy consulted in preparing its FEIS.
With regards to the marine mammal density data, the Navy consulted the Navy OPAREA Density Estimates ("NODE") for the Southeast OPAREAs: VACAPES, CHPT, JAX/CHASN, and Southeastern Florida & Autec-Andros, DON121653, which notes "density estimates are needed to assist in the determination of the potential impacts of military operations to marine mammal and sea turtle species."
Turning to the bottom habitat surveys, the Navy also points to specific provisions in the record which it analyzed and relied on in producing the FEIS. See, e.g., DON182044-182045 (discussing sea bottom habitat); see also DON182699 (referencing "2001 Distribution of Bottom Habitats on the Continental Shelf from North Carolina to the Florida Keys, Washington D.C.: SEAMAP Bottom Mapping Project"); DON182827 (referencing "Wenner E.L., P. Hinde, D.M. Knott, and R.F. Van Dolah, 1984, A temporal and spatial study of invertebrate communities associated with hardbottom habitats in the South Atlantic Bight. Seattle', Washington, National Marine Fisheries Service. NOAA Technical Report NMFS 18: 1-106"). Moreover, the Navy specifically discussed the hard bottom data internally in an attempt to ensure that the EIS used a more recent form of the SEAMAP data. DON123536-37.
As is made clear from the record, the Navy analyzed marine mammal densities and bottom habitat surveys in forming the FEIS. That the Navy plans to conduct further thorough studies in the future in no way vitiates this prior analysis. To decide otherwise would provide a disincentive for agencies who wish to go beyond what is required under NEPA. Therefore, the Court is satisfied that the Navy did not have "incomplete" or "unavailable" information with regards to marine mammal densities and bottom habitat surveys. As a result, the strictures of 40 C.F.R. § 1502.22 were not prompted, and the Navy was not required to make clear that such information was lacking.
Actions that are closely related are deemed connected and should be discussed in the same EIS. 40 C.F.R. § 1508.25(a)(1).
The parties' argument over segmentation in this case is unique. In most instances the disputed issue is whether actions are related and, therefore, must be analyzed in the same EIS. See, e.g., Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242 (11th Cir.1996). Here, there is no dispute that the installation and operation components of the USWTR are to be discussed in the same EIS. Rather, the contested issue is whether the Navy did, in fact, analyze the operations component of the USWTR. In this sense, there is no real dispute as to the connectedness of the operation and installation components of the project. Instead, Plaintiffs' true argument is that the Navy did not adequately analyze the operations component of the USWTR.
Plaintiffs argue that, by deferring analysis of USWTR's operation until after the construction was authorized, the Navy has unlawfully segmented its analysis. Dkt. No. 73 at 15. In essence, Plaintiffs contend that the Navy has attempted to obtain authorization of the construction of the USWTR without properly examining the operations to be performed there.
The Navy denies this contention, maintaining that in preparing the USWTR FEIS, the Navy fully analyzed the impacts of both construction and operation of the planned range. Dkt. No. 76 at 15. The Navy further asserts that it postponed a final decision to authorize the operations phase of the USWTR to avoid wasting resources by securing authorization under the Marine Mammal Protection Act ("MMPA") that would expire before the covered operations commenced. Dkt. No. 82 at 3. In short, the Navy admits that the construction and operation components are connected actions, and it maintains that both were analyzed in the USWTR FEIS.
Plaintiffs contend that the Navy violated 40 C.F.R. § 1508.25(a) by failing to consider the environmental impacts of the operations component of the project. Dkt. No. 73 at 15. The Navy is quick to point out, however, that the USWTR FEIS was prepared "to assess the potential effects of installing and operating a USWTR offshore of the east coast of the United States." DON18156 (emphasis added); see also DON185885 (ROD) (noting that the Navy has "carefully weigh[ed] the environmental consequences of the installation and operation of the proposed action"); DON185886 (ROD) (stating that "both the installation phase and training phase of the USWTR are fully analyzed in the [FEIS]"). However, this assertion is perhaps undermined by the Navy's plans to create another EIS with regards to the operations component of the proposed action. See DON185885 (noting that "[t]he decision to implement training on USWTR will be based on the updated analysis of environmental effects in a future OEIS/ EIS").
In response to Plaintiffs' labeling its future EIS plans as evidence of segmenting, the Navy retorts that the "additional NEPA analysis [that] will occur in connection with the decision to authorize training on the USWTR is of no moment, because that analysis will focus on alternative training and testing scenarios, including tempo of activities-not on the location of the range." Dkt. No. 82 at 4. Further, the Navy adds that it has no obligation to revisit or reanalyze its decision as to the USWTR's location. Id.
After carefully considering the parties' respective contentions, the Court
Further, the Navy did not violate 40 C.F.R. § 1506.1(a) as Plaintiffs suggest.
"An agency has met its `hard look' requirement if it has `examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'" Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir.2002) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In this context, the Court is duty-bound to ensure that the agency took a hard look at the environmental consequences of the proposed action. Nat'l Parks Conservation
City of Oxford, 428 F.3d at 1352 (citing Sierra Club v. U.S. Army Corps of Enq'rs, 295 F.3d 1209, 1216 (11th Cir.2002)).
Plaintiffs assert that the Navy failed to take a "hard look" and adequately consider the risks for (1) North Atlantic right whales and other marine mammals, (2) sea turtles, and (3) manatees. For the reasons set forth below, the Court finds that the Navy's decision regarding the environmental impacts to these three groups was not "arbitrary, capricious, or an abuse of discretion," and therefore, the Court declines to substitute its judgment for that of the Navy. Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir.1996).
Plaintiffs first argue that the Navy failed to adequately consider the risks that the USWTR posed to the North Atlantic right whale. Dkt. No. 73 at 18. Plaintiffs point out that mothers and their calves are primary occupants of the critical habitat in Georgia and Florida and that these occupants are the species most vulnerable and important segments of the population. Id. Additionally, while Plaintiffs acknowledge the FEIS's recognition that the right whale is among the world's most endangered species, Plaintiffs' argue it simply does not adequately address the risks the USWTR poses to the species. Id. Specifically, Plaintiffs argue that the Navy failed to adequately consider risks posed by ship strikes, entanglement in discarded debris, and the impact of sonar operations. Id. The Navy disputes these allegations.
As Plaintiffs point out, ship strikes are the greatest source of mortality for right whales. Dkt. No. 73 at 18 (citing NMFS AR 1789). The effects are intensified because a disproportionate number of ship strike victims are female right whales. Id. (citing DON154896). This threat undoubtedly has severe environmental consequences because, as previously noted, the right whale is "the world's most critically endangered large whale species and one of the world's most endangered species." Id. at 3 (citing DON154895).
Although the risk is considerable, the Navy performed extensive analysis regarding the risks posed to the right whales by ship strikes. In doing so, the Navy found that ship strikes are an issue of concern for the right whale, DON182360 (citing MMC 2008; Nelson et al., 2007), specifically with regards to potential stranding,
In considering the magnitude of the threat of ship strikes on right whales, the Navy reviewed the historical record of ship strikes by the Navy during Navy operations in the Jacksonville Operating Area. Dkt. No. 82 at 11. Based on this record, the Navy submits that in its sixty (60) year history of training in the area, there has not been one instance of a Navy vessel striking a whale. Id. (citing DON080034). The historical record also indicates that the Navy has already placed protective measures into practice to avoid harming the right whale. Such protective measures have been in place since 1997 and include the funding of an Early Warning System ("EWS") to provide daily aerial surveillance flights during calving season.
To compliment the efforts discussed above, the Navy has outlined protective measures for the critical habitat itself. Notably, these protective measures are "tailored according to the temporal and spatial distribution of right whales at each location." DON182360. For the Southeast these measures include (1) an annual message sent to all ships prior to the calving season, (2) moving through the critical habitat in the most direct manner possible, avoiding north-south transits during the calving season, (3) using extreme caution and operating a slow, safe speed, and (4) to the extent practicable and consistent with mission, training, and operations, limiting vessel operations in critical habitat to daylight and periods of good visibility. DON182360-61.
Although Plaintiffs contend that Defendants are unable to cite to anything in the record that "meaningfully analyzes" the potential impacts on right whales, Dkt. No. 78 at 13, it is clear from the foregoing that the Navy indeed took a "hard look" at the potential impacts of ship strikes on the right whale within the meaning of NEPA. In doing so, the Navy concluded that the threat that ship strikes pose to the right whales, while not impossible to avoid, is not expected in the area of the proposed USWTR. Dkt. No. 82 at 20. The Court is not required to agree with this assessment but, instead, must ensure that the Navy took a "hard look" at the environmental impacts. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23, 129 S.Ct. 365,
Plaintiffs argue that the Navy failed to take a "hard look" at the possibility that right whales will become entangled in discarded debris from the air launch accessories and parachutes used on the range. Dkt. No. 73 at 20. This alleged failure is significant because fishing gear entanglement is the second largest source of mortality for right whales. Id. (citing NMFS AR 1789). Specifically, Plaintiffs contend that the Navy's conclusion that entanglement is "unlikely" is flawed because it was reached in a cursory manner without meaningful analysis. Id. at 20-21.
The Navy responds, in turn, by arguing that it did consider the risk of entanglement from the installation and operation of the USWTR. Dkt. No. 76 at 20. In doing so, the Navy analyzed. the risk that discarded materials could have on right whales. See, e.g., DON182318 (discussing the potential impacts that discarded control wires and flex hoses will have on sea turtles, whales, or other animals); DON182363 (analyzing the potential for sea turtles or marine mammals to encounter an expended parachute assembly). The Navy, however, determined that the parachute's design, which includes weights designed to sink the parachute from the surface within fifteen (15) minutes, reduces the risk of entanglement. Dkt. No. 76 at 20-21 (citing DON096581; DON162252). Furthermore, contrary to Plaintiffs' assertion, the Navy did consider the risk of billowing and determined that it was unlikely as, "once the expended parachute assembly has landed, it and its housing are expected to lay flat on the seafloor, as observed at other locations." Id. at 21 (citing DON182363). The Navy also reasoned that discarded debris associated with torpedoes "will not easily loop or tangle[,]" making it unlikely that these materials "will result in the entanglement of any sea turtles, whales, or other animals." DON182318.
The record makes clear that the Navy considered the environmental consequences of the proposed action as it relates to right whale entanglement with regards to parachutes and other discarded debris. Further, the Navy has "articulated a satisfactory explanation" as to why the proposed action would be unlikely to have a significant impact on right whales with regards to entanglement, and there is "a rational connection between the facts found and the choice made.'" Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir.2002) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). As such, the Navy has fulfilled its obligation.
Lastly, with respect to the right whales, Plaintiffs contend that the Navy failed to take a "hard look" at the impact that the systems used during exercises on the USWTR, particularly the mid-frequency sonar, would have on right whales. Dkt. No. 73 at 21. The record reveals, however, that the Navy consulted the NMFS to address the potential effects to marine mammals from sound associated with USWTR. DON182367. In doing so, the Navy concluded that "the potential exists for moderate, but recoverable, effects to
Plaintiffs next argue that the FEIS fails to consider the risks posed to threatened and endangered sea turtles resulting from installation activities, ship strikes, and entanglement. Dkt. No. 73 at 22. Contrary to Plaintiffs' contention, the Navy did indeed take a "hard look" at the potential impacts that the USWTR could have on sea turtles.
First, the Navy thoroughly considered the potential impacts that the installation of the USWTR could have on sea turtles. Namely, the Navy rationally concluded that the risk of a ship or the burial vehicle striking a sea turtle was minimal. Dkt. No. 76 at 22. The Navy came to this conclusion based on a combination of the fact that the cable installation will proceed at slow speed's
Aside from ship strikes during installation, the Navy also properly considered whether there was a risk that cable burial could disturb a sea turtle in the process of brumating.
The Navy also considered the potential impacts of sea turtles becoming entangled and rationally concluded that the risk was low. The Navy cites studies that have found that interactions between sea turtles and parachutes generally take place at the surface or in the water column. DON160619. The parachute assemblies used for this project are designed to float for a short time and then sink to the bottom. Id. Based on this information, the Navy rationally concluded that the risk of entanglement would be greatly reduced due to the amount of time that sea turtles were exposed to the parachutes. Further, although Plaintiffs posit that the Navy failed to consider the risk of the parachutes billowing, Dkt. No. 73 at 23, the Navy did indeed consider the risk and discounted the possibility in reliance on a 2005 study. DON182363 (citing ESG, 2005). As a result, the record reveals that the Navy adequately considered the potential risks posed to sea turtles based on entanglement.
The Navy considered the potential impacts that ship strikes could have on sea turtles and rationally determined that these strikes would not significantly impact them. This conclusion was based on a combination of sea turtles' ability to detect approaching vessels in the water via auditory and/or visual cues based on knowledge of their sensory biology, (DON160498; DON182508), and the use of lookouts specifically trained to detect sea turtles. DON182359. While Plaintiffs disagree with the Navy's conclusion that ship strikes do not pose a significant risk to sea turtles, the Court finds that the Navy's conclusion is satisfactory in that the explanation bears a rational connection to the facts found. Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (11th Cir.2002). Consequently, the Court is satisfied that the Navy took a "hard look at the environmental consequences of the proposed action" with respect to sea turtles. Id.
Plaintiffs also contend that the Navy failed to take a "hard look" at the impacts of construction or operations on the range of manatees. Dkt. No. 73 at 24. The record reveals, however, that the Navy did indeed take a "hard look" at potential impacts that the proposed action could have on manatees for both installation and operations of the USWTR.
As for the installation, the Navy examined evidence showing that manatees are only likely to be in shallow areas near shore. See DON182135 (noting that manatees are "fairly restricted to shallower nearshore waters" (citing Wells et al., 1999) and that manatees occur in "very shallow waters of 2 to 4m (7 to 13 ft) in depth generally close to the shore" (citing Beck et al., 2004)). As a result, the Navy concluded that manatees are only reasonably likely to occur in the shallow area where the trunk cable portion of the USWTR may be installed. See DON182136 ("Manatees are expected in the freshwater, estuarine, and nearshore coastal waters in or near the cable range portion of Site A throughout the year. They are not expected in the offshore portions of the Jacksonville OPAREA."). This portion of the installation will be installed through horizontal drilling, meaning that vessels will not be used in the process. DON181937. Therefore, it was
The Navy also analyzed potential impacts on manatees from operation of the USWTR. In light of the evidence that manatees occupy nearshore waters, the Navy concluded that sonar usage would be unlikely to impact the manatees. This conclusion was reached based on studies that have shown that manatees do not exhibit strong startle responses or an aggressive nature towards stimuli, DON182428 (citing Bowles et al., 2004), the fact that manatees would not likely show a strong reaction or be disturbed from their normal range of behaviors, and the fact that limited active sonar activities would take place in the manatee habitat. DON182428. The Navy's conclusion in this regard was clearly rationally connected to the evidence presented in the record.
The potential for manatee ship strikes was also examined by the Navy. The USWTR will be located fifty (50) nautical miles offshore, a location much farther from shore than traditional manatee habitat. The Navy expects vessel traffic to occur at roughly the same frequency in the manatee habitat as has historically occurred.
Plaintiffs' final challenge under NEPA is that the Navy's analysis of mitigation techniques is arbitrary and capricious. Dkt. No. 73 at 24. The Navy responds by noting that it fulfilled its obligations regarding mitigation analysis and that Plaintiffs simply wish the Navy would have adopted Plaintiffs' favored mitigation measures. Dkt. No. 76 at 28. The record reveals that the Navy fulfilled its obligations in considering mitigation measures.
The Supreme Court has noted that "one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). This "requirement is implicit in NEPA's demand that an EIS must discuss any adverse environmental effects which cannot be avoided should the proposal be implemented." Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000) (internal citations and quotations omitted). The Supreme Court in Robertson also found that "[t]here is a fundamental distinction, however, between a requirement that mitigation be discussed in sufficient detail to ensure that environmental
The Navy's FEIS includes an extensive mitigation analysis. This mitigation analysis includes, a detailed description of mitigation with respect to acoustical effects on marine animals, (section 6.1), a discussion of the mitigation related to vessel transits, (section 6.2), a description of the mitigation measures that would be employed during cable installation, (section 6.4), a statement of dedication to dynamic mitigation as conditions change with time, (section 6.5), and a discussion of the other mitigation measures that have been considered and rejected, (section 6.6). DON182647-182682. Plaintiffs' specific attacks on this analysis evolve from their contention that the Navy's usage of lookouts is ineffective and charges that the Navy has arbitrarily refused other mitigation measures.
First, the Navy's decision to use professionally trained lookouts is based on its belief that these lookouts have been an integral part of the mitigation measures it has had in place since 1997, during which time no strikes have occurred. Dkt. No. 76 at 28 (citing DON183907). As this conclusion is rationally related to the underlying record of success the Navy has had utilizing this measure, the Court is satisfied that this determination is not arbitrary and capricious. Second, the Navy did consider the mitigation measures Plaintiffs discuss in their motion, Dkt. No. 73 at 25-28, and rationally rejected them. Specifically, the Navy properly considered restricting operations during calving season and limiting speeds to 10-knots. With regards to these two suggestions, the Navy reasoned that "any reduction of training (including seasonal, weather — or light based restrictions) would prohibit sailors from achieving satisfactory levels of readiness needed to accomplish their mission" and that "[t]raining differently than what would be needed in an actual combat scenario would decrease training effectiveness and reduce the crew's abilities." DON182678; DON182680. Despite Plaintiffs' objections to this rationale, this Court is to give "great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (quoting Goldman v. Weinberger, 475 U.S. 503, 507, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986)).
Here, the Navy has met its requirement to discuss mitigation in sufficient detail to ensure that the environmental consequences have been fairly evaluated. Therefore, the Navy is in full compliance with this requirement as stated under Robertson, 490 U.S. 332, 352, 109 S.Ct. 1835 (1989). Consequently, the Court is satisfied that the Navy's mitigation analysis satisfied the "hard look" requirement of NEPA and was not arbitrary or capricious.
Based on the discussion above, the Court is satisfied that the Navy fully complied with its responsibilities under NEPA. As a result, the Court grants summary judgment in Defendants' favor as to Plaintiffs' claims arising under NEPA.
The policy of Congress in initiating the ESA was to mandate "that all Federal departments and agencies ... seek to conserve
Section 9 of the ESA establishes a prohibition of the "taking"
In determining whether formal consultation is necessary, the acting agency prepares a "biological assessment" to evaluate the potential effects "on listed and proposed species and designated and proposed critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action." 50 C.F.R. § 402.12(a). If formal consultation is necessary, the NMFS or FWS is responsible for issuing a "biological opinion as to whether the action, taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." 50 C.F.R. § 402.14(g)(4).
In preparing its Biological Opinion the NMFS is to use "the best scientific and commercial data available." Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1265 (11th Cir.2009); 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). Generally, the agency decides which data and studies are the "best available" because the decision is itself a scientific determination deserving deference. Id. (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377-78, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)).
Plaintiffs' first argument under the ESA is that the Navy failed to consult with the NMFS or FWS regarding the potential effects that the proposed action could have on the West Indian manatee, as is mandated by 50 C.F.R. § 402.14(a). The Navy's biological assessment for the USWTR enumerates multiple ways in which manatees may be affected by the project. See, e.g., DON150137 ("Manatees are ... particularly susceptible to vessel interactions and collisions with watercraft constituting the leading cause of mortality." (citation omitted)). Plaintiffs argue that this finding requires that the Navy initiate consultation.
The Navy did, in fact, consult the FWS informally. The FWS concurred with the Navy's determination that the USWTR would not be likely to jeopardize the continued existence of the West Indian manatee. Dkt. No. 76 at 30 (citing Ex. 1). The FWS's concurrence terminated the consultation process, and no further action was required on the part of the Navy. Id. As a result, the Navy fulfilled its obligations of consultation under 50 C.F.R. § 402.14.
Plaintiffs argue that the NMFS's biological opinion is arbitrary and capricious because it fails to make connections between the facts found and the conclusions reached. Dkt. No. 78 at 16. Specifically, Plaintiffs contend that the NMFS has failed to support its conclusion that installation activities will not result in the "take" of endangered sea turtles and that operations on the range will not cause "jeopardy" to right whales. Dkt. No. 73. Plaintiffs also contend that the NMFS violated the ESA by failing to consider the "entire action" in its jeopardy analysis. Id. Finally, Plaintiffs assert that NMFS has failed to support its conclusion that there will be no adverse modification on critical habitat.
Plaintiffs submit that while the Biological Opinion listed potential impacts on
The determination that USWTR installation is not likely to adversely affect or result in the incidental take of sea turtles is supported by the record and entitled to deference. The risk of ship strikes involving sea turtles was considered, see, e.g., NMFS AR 1845, 1882-83, 1928 (noting that the risk of ship strikes involving sea turtles is improbable because the ships move at such slow speeds and there will be dedicated observers on deck), as was the risk of entanglement, see, e.g., NMFS AR 1928 (analyzing the risk of entanglement)
Plaintiffs next argue that the NMFS illegally failed to include an ITS for turtles in its Biological Opinion. Dkt. No. 73 at 32. In support of this argument, Plaintiffs contend that the "NMFS's own analysis in the [Biological Opinion] provided evidence that take of listed species — i.e., sea turtles — `may occur' as a result of that installation." Dkt. No. 73 at 32 (citing 50 C.F.R. § 402.14(g)(7)). However, the Biological Opinion concluded that sea turtles are not likely to be adversely affected by the installation phase. NMFS AR 1846; see also NMFS AR 1930 (concluding that "we do not expect endangered or threatened species to be `taken' during the installation phase of the proposed action"). The NMFS did not make a finding that an "incidental taking" of sea turtles "may occur" during the operations phase of the USWTR. The Court has already determined that the NMFS's determination regarding the "taking" of sea turtles was not arbitrary and capricious. Suffice it to say, 50 C.F.R. § 402.14(g)(7) was simply not triggered in light of the rational conclusions
Plaintiffs also challenge the Biological Opinion's determination that the operations phase will not result in jeopardy to sea turtles. Specifically, Plaintiffs assert that the Biological Opinion fails to analyze whether a taking of sea turtles may occur due to ship strikes or whether sea turtles are at risk for entanglement from discarded debris used during Navy operations. Id. at 36.
The record reflects that the NMFS did analyze the risk of ship strikes and entanglement in the Biological Opinion. See, e.g., NMFS AR 1875, 1928 (analyzing sea turtle exposure to parachutes); NMFS AR 1882-83 (analyzing the risk of ship strikes to sea turtles). Further, aside from the Biological Opinion itself, the record reveals additional support for the NMFS's conclusion that the operations phase is unlikely to jeopardize the continued existence of sea turtles. See, e.g., DON160615-16 (analyzing the risk of torpedo strikes on sea turtles and determining that the risk is "negligible"); DON160619 (examining the risks posed to sea turtles associated with the use of sensing devices); DON160619 (analyzing the risk of sea turtle entanglement and determining that the parachutes design "would greatly limit the amount of time that sea turtles are exposed to the parachutes"). Finally, contrary to Plaintiffs' implication, the NMFS did not attempt sidestep its obligation to make an accurate "no jeopardy" opinion and wait on future data. Nor would the NMFS be required to postpone its determination until future studies were performed, as they are required to consult the "the best scientific and commercial data available." Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1265 (11th Cir.2009); 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(g)(8). Here, the record supports a determination that the NMFS fulfilled its obligation by relying on the "best available science" in issuing its "no jeopardy" opinion. Id.
Plaintiffs next challenge the Biological Opinion's conclusion that operations on the USWTR will not cause jeopardy to the North Atlantic right whale. Dkt. No. 73 at 33. This challenge attacks the Biological Opinion's conclusion with regards to the risks posed to right whales due to ship strikes and sonar usage.
The Biological Opinion included an exposure analysis which specifically examined the likelihood of a ship strike during the operations phase of the USWTR. NMFS AR 18 64-66. The NMFS ultimately concluded that Navy vessels would have a 0.0000472 probability of striking a whale in any year or a probability of 0.000236 over the five-year period of any permit the NMFS might issue for the operations phase of the USWTR.
Plaintiffs' challenges to this finding are unavailing. First, Plaintiffs contend that the NMFS failed to consider the best available science, which Plaintiffs argue demonstrates that right whales exposed to mid-frequency alarm sounds are especially vulnerable to ship strikes. Dkt. No. 80 at 18 (discussing the study by Nowacek et al., 2004). This study does not, however, undermine the estimates provided in the Biological Opinion. This is because, as Defendants point out, the database used by the NMFS to calculate the figures does not exclude collisions involving sonar. Dkt. No. 82 at 16 (citing DON080195). Furthermore, there are no reported instances of sonar causing marine mammals to surface and collide with ships. Id. (citing DON183325).
Next, Plaintiffs argue that the NMFS's probability calculation contains "fundamental flaws." Dkt. No. 80 at 18. In making this argument, Plaintiffs make a number of observations that they feel the NMFS should have considered in making its calculation. See Dkt. No. 80 at 18 (arguing (1) that the calculation failed to take into account the fact that there are areas where right whale concentration would be higher and (2) the study relied upon, which catalogued ship strikes (DON080195), warns that "the actual number of strikes is undoubtedly much greater than reported here"). The calculations were not flawed.
With regards to Plaintiffs' first challenge, Defendants correctly note that the
The NMFS also analyzed the potential impacts that sonar could have on the right whale in coming to its "no jeopardy" determination. The NMFS found that the right whale is not likely to respond to high-frequency sound sources associated with the proposed training activities. NMFS AR 1925. In analyzing mid-frequency active sonar, the NMFS noted that the evidence of whether right whales are likely to respond is equivocal. See id. (noting that while the Nowacek et al., 2004 study found that "alert stimulus caused whales to immediately cease foraging behavior and swim rapidly to the surface, [the study], offer[ed] no information on whether the whales were probably responding to the low- or mid-frequency components of the signal"). However, while acknowledging this ambiguity, the NMFS goes on to rationally conclude that "right whales seem less likely to devote attentional resources to stimuli in the frequency ranges of mid-frequency active sonar" and, therefore, "are not likely to respond physiologically or behaviorally to sounds in this frequency range." NMFS AR 1926. Although Plaintiffs disagree with this assessment, the NMFS certainly considered the effect that sonar could have on the right whale.
Under the APA, this Court is to give substantial deference to the NMFS's decisions as to "what evidence to find credible" and "drafting decisions like how much discussion to include on each topic, and how much data is necessary to fully address each issue," finding such decisions inadequate only where they are arbitrary, capricious, or an abuse of discretion. Nat'l Wildlife Fed'n v. Souza, 2009 WL 3667070, at *5 (S.D.Fla. Oct. 23, 2009) (quoting Sierra Club v. Van Antwerp, 526 F.3d 1353, 1361 (11th Cir.2008)). Here, the arguments made by Plaintiffs over the NMFS's shortcomings fall far short of what is required to amount to decisions that are arbitrary, capricious, or an abuse of discretion.
Plaintiffs next contend that the Biological Opinion is arbitrary and capricious because it fails to consider the entire action in its jeopardy analysis for right whales. Dkt. No. 73 at 37; see also Dkt. No. 80 at 14 (citing Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521 (9th Cir.2010) ("[T]he ESA requires the biological opinion to analyze the effect of the entire agency action.")). More specifically, Plaintiffs argue that the NMFS failed to analyze both the installation and operation of the USWTR. Dkt. No. 80 at 14.
Much of Plaintiffs' arguments in this regard come in the form of supposed admissions
Defendants respond by arguing that just because the NMFS acknowledged that its issuance of any MMPA "take" authorization covering USWTR operations would trigger a new consultation resulting in a new biological opinion does not reveal any flaw in the existing Biological Opinion. Dkt. No. 76 at 35. Further, Defendants argue that the Biological Opinion clearly analyzed both the operations and installation portions of the proposed action. See, e.g., DON185886 (ROD) (noting that the "NMFS provided the Navy with a Biological Opinion (BO) on July 28, 2009, in which it analyzed the effects of both installation and use of the USWTR"); NMFS AR 1731-32 (Cover Page of Biological Opinion) ("We have concluded that anti-submarine warfare training activities the U.S. Navy plans to conduct on USWTR are likely to adversely affect endangered whales, but [are] not likely to jeopardize the continued existence of those whales.").
Irrespective of "admissions" as to whether the Biological Opinion analyzed only the installation phase or both the installation and operation phases of the proposed action, the content of the NMFS itself clearly analyzes both the installation and operations of the USWTR. For example, pages 1925-26 of the Biological Opinion analyze the training activities that are likely to occur during the operations phase of the proposed USWTR. NMFS AR 1925-26. After a discussion of the ASW training's effects on right whales — including estimates of the number of right whales that might be exposed to the active sonar and the expected response of these affected whales to differing levels of frequency — the NMFS ultimately concludes that the "anti-submarine warfare training activities associated with the Operations Phase of the Undersea Warfare Training Range are not likely to adversely affect the population dynamics, behavioral ecology, and social dynamics of individual North Atlantic right whales in ways or to a degree that will reduce their fitness." Id.; see also NMFS AR 1913 (analyzing probable responses of right whales to activities that are likely to occur during the operations phase). Similar analyses of the operations phase of the proposed USWTR are also included for sea turtles, see, e.g.,
To be clear, this is just a sampling of specific instances where the Biological Opinion analyzed the operations phase of the USWTR.
Finally, Plaintiffs argue that the Biological Opinion arbitrarily concludes that neither installing nor operating the USWTR is likely to adversely modify critical habitat for the right whale in violation of 50 C.F.R. § 402.14(g)(4).
The record reveals that the NMFS considered the potential impact on the critical habitat of the right whale. First, the Biological Opinion considered the potential impacts that the cable installation could have on the right whale habitat. As a preliminary matter, installation will not occur during the right whale calving season.
Additionally, the NMFS did consider whether sonar activities would potentially affect right whale critical habitat. The record reveals that the right whales critical habitat was considered with regards to sonar and that it was rationally determined that the Navy's active sonar training activities should not reduce the conservation value of the designated habitat. NMFS AR 548;
The NMFS rationally supported its position that the critical habitat of the right whale would not be adversely impacted by the USWTR. Accordingly, its conclusion in this regard is entitled to deference, as it is not arbitrary and capricious.
Plaintiffs' final argument is that the Navy has failed to ensure against jeopardy to listed species in violation of the ESA by relying on a flawed Biological Opinion. Dkt. No. 73 at 39. In essence, Plaintiffs' position is that the Court should find the Biological Opinion arbitrary and capricious, and that the Navy's decision to rely on this Biological Opinion was arbitrary and capricious as well. In this regard, Plaintiffs cite an Eleventh Circuit opinion, Fla. Key Deer v. Paulison, 522 F.3d 1133, 1144 (11th Cir.2008), which cites a Ninth Circuit opinion, Pyramid Lake Paiute Tribe of Indians v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir.1990), which stands for the proposition that the "decision to rely on [the] biological opinion must not have been arbitrary and capricious." However, as the Eleventh Circuit noted in Paulison, the Ninth Circuit qualified this statement by stating "another agency's reliance on that opinion will satisfy its obligations under the [ESA] if a challenging party can point to no `new' information — i.e., information the [NMFS] did not take into account — which challenges the opinion's conclusions." Id.
Plaintiffs, as the challenging party, "bear[] a heavy burden to prove that the [agency] was arbitrary and capricious in relying upon the [NMFS] determination of a matter firmly within that agency's area of expertise." Sierra Club v. U.S. Army Corps of Eng'rs, 295 F.3d 1209, 1222 (11th Cir.2002). Here, as noted above, the NMFS has identified reasonable justifications for its "no jeopardy" determination in the Biological Opinion. Furthermore, Plaintiffs have pointed to no new information that the NMFS failed to consider which would call into question the Biological Opinion's conclusions. Paulison, 522 F.3d at 1144. Accordingly, Plaintiffs have failed to satisfy this heavy burden.
Based on the discussion above, the Court is satisfied that the NMFS fully
The Court is satisfied that the Defendants complied fully with NEPA, the ESA, and the APA. As a result, Defendants' Motion for Summary Judgment is
