Conservation Council for Hawaii v. National Marine Fisheries Service
97 F. Supp. 3d 1210
D. Haw.2015Background
- The Navy proposed training/testing across the Hawaii–Southern California Training and Testing (HSTT) Study Area, affecting 39 marine mammal species (8 endangered, 1 threatened); NMFS adopted the Navy’s FEIS and issued a five‑year MMPA Final Rule and Letters of Authorization (2013–2018).
- NMFS authorized Level A and B harassment and authorized mortalities for multiple species/stocks; NMFS also issued an ESA Biological Opinion concluding “no jeopardy” for listed species and an incidental take statement (including an unspecified number of turtle takes by vessel strike).
- Plaintiffs Conservation Council and NRDC sued under the APA, alleging violations of NEPA, the MMPA, and the ESA; cases were consolidated and cross summary‑judgment motions were filed.
- Court limited extra‑record submissions: denied NRDC’s motion for extra‑record evidence; struck an expert declaration for Conservation Council but admitted three NMFS documents as supplemental exhibits.
- The court found NMFS’s MMPA negligible‑impact findings arbitrary and capricious for multiple reasons (analyzing authorized vs. anticipated take; failure to analyze impacts stock‑by‑stock; failure to use best available science, especially PBR; inadequate mitigation analysis).
- The court found the Biological Opinion defective under the ESA (arbitrary “no jeopardy” for whales; invalid incidental take statement for turtles because it authorized an unspecified number of vessel‑strike takes and provided no numerical or surrogate trigger), and the FEIS failed NEPA (no true ‘‘no action’’ alternative and inadequate evaluation of reasonable mitigation/time/area alternatives).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NMFS’s MMPA "negligible impact" findings were lawful | NMFS must evaluate the authorized take for negligible impact, use best available science (including PBR), analyze impacts on each affected species/stock, and prescribe the least practicable adverse impact | NMFS may rely on anticipated takes and need not be constrained by PBR or analyze every stock in detail; mitigation (lookouts/mitigation zones) suffices | Court: Held for plaintiffs — NMFS acted arbitrarily and capriciously (focused on anticipated not authorized take, failed stock‑level analyses, ignored PBR and best available science, and provided inadequate mitigation analysis) |
| Validity of Biological Opinion’s "no jeopardy" for whales | Biological Opinion fails to analyze how authorized mortalities affect survival/recovery (sex/maturity, population consequences) | Defendants point to low risk of mortalities and rely on the MMPA analysis | Court: Held for plaintiffs — "no jeopardy" for whales arbitrary and capricious due to lack of required analysis |
| Incidental Take Statement for sea turtles (vessel strikes) | Incidental Take Statement unlawfully authorizes an unspecified number of turtle takes and lacks numeric cap or surrogate trigger for reinitiation of consultation | Defendants rely on anticipated low take and argue certain modeled PTS numbers could operate as surrogates | Court: Held for plaintiffs — incidental take statement invalid (no numerical limit and no adequate surrogate/trigger) |
| NEPA adequacy of the FEIS (alternatives and ‘‘no action’’) | FEIS failed to consider a true no‑action alternative (denial of MMPA authorizations) and did not rigorously evaluate reasonable time/area or other mitigation alternatives | Defendants argue the FEIS (prepared/led by Navy) reasonably considered alternatives and practicality concerns about restrictions | Court: Held for plaintiffs — FEIS deficient (not a true no‑action alternative; failed to rigorously explore reasonable mitigation/time‑area alternatives) |
Key Cases Cited
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (limits on extra‑record evidence and supplementation exceptions)
- Occidental Eng’g Co. v. I.N.S., 753 F.2d 766 (9th Cir. 1985) (scope of district court review of administrative records)
- Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (9th Cir. 2003) (NEPA “hard look” standard)
- Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) (agency must articulate rational connection between facts and choices)
- Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) (arbitrary and capricious review: failure to consider an important aspect)
- Oregon Natural Res. Council v. Allen, 476 F.3d 1031 (9th Cir. 2007) (ESA incidental take statement and preference for numerical limits)
- Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir. 2001) (surrogate triggers required when numerical take limits absent)
- Center for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009) (negligible impact finding arbitrary where agency failed to consider important aspects)