Natural Resources Defense Council, Inc. v. Winter

open inspect the contents of his ran- resentencing for on an will remand we is, domly package without limitation on record —that selected intended for over- open may the district court the evidence delivery. seas We also hold that there was consider.”).6 sufficient evidence to establish that social security cards are “identification docu- Reporting Requirement

B. meaning of ments” within the 18 U.S.C. also claims that the 1028(a)(2). Abbouchi agree We the district report probation that he requirement plain by court committed error requiring seventy-two reentry officer within hours participate Abbouchi to a domestic vio- he truth and that into the United States program super- lence treatment while on by asked of him fully any questions answer affirm Accordingly, vised release. we Fifth officer violates his probation convictions but vacate the sentence. We right against self-incrimina Amendment purpose remand for the limited of resen- challenge seventy-two to the tion. His tencing Abbouchi after the district court is fore reporting requirement hour itself opportunity has had the to reconsider the by Rodriguez-Rod closed States v. United imposition of domestic violence Abbouchi’s (9th Cir.2006) 772-73 riguez, F.3d treatment pay- condition its associated (holding requirement that a that the defen ment condition. probation upon office report dant PART, AFFIRMED in VACATED country require reentering the does not PART, and REMANDED. himself). to incriminate the defendant Furthermore, it to decide premature challenge requirement to the

Abbouchi’s truthfully any questions

that he answer probation him officer.

asked of raising a

Nothing prevents Abbouchi from

Fifth Amendment should' arise. issue (holding id. that the defendant could

See privilege Fifth Amendment assert his NATURAL RESOURCES DEFENSE in question asked a that would tend to COUNCIL, INC.; The International him). affirm the district criminate We Welfare; Fund Animal Cetacean for remaining supervised court’s release condi Society International; League tions. Protection; Futures Coastal Ocean Society; Cousteau, Jean-Michel

V. CONCLUSION Plaintiffs-Appellees, package The search of Abbouchi’s UPS place at the Louisville UPS hub took WINTER, Secretary of the Donald C. equivalent

functional of the border because Navy; Department of United States practicable opportunity it was the last Navy; Gutierrez, Carlos M. Secre inspection officers to conduct an Customs Commerce; tary Department from package departed before Abbouchi’s Services; Thus, Marine Fisheries National the United States. the Customs offi- Hogarth, Assistant Adminis- suspicion cers did not need reasonable to William pay- judg- orally pronounced links the Although the condition in the written senlence as requires pay ment Abbouchi to for treatment violence treat- ment condition to domestic disorder,” psychiatric "the defendant's ment. sentencing transcript makes clear the National trator for Fisheries of Atmospheric

Oceanographic Ad

ministration; Lautenbach Conrad C. Jr.,

er, the National Administrator of

Oceanographic Atmospheric Ad

ministration, Defendants-Appellants.

No. 07-56157. Appeals,

United States Court

Ninth Circuit. ducting” carry Allen M. Bra- face would let the noise Kathryn E. Kovacs and Section, bender, Depart- Appellate U.S. more.1 Justice, Natural Environment &

ment litigation, In round of the this DC, Division, Washington, Resources to proposed frequency use medium active defendants-appellants. the federal in training sonar exercises off the coast of Kendall, Heinrich, Alan Richard B. J. California without mitigation Southern Manella, Fayer, Irell & Gregory and A. why measures. The record does not show CA; LLP, Reyn- and Joel R. Angeles, Los Navy propose mitigation the does not the Wetzler, olds, E. and Cara A. Andrew previously measures it has used. The dis- Horowitz, Natural Resources Defense preliminary injunction trict court issued a Monica, CA, Council, plain- Santa Policy under the National Environmental tiffs-appellees. Act2 Management and the Coastal Zone injunction prohibits

Act.3 The all use of frequency medium active sonar off the coast of Southern California large training fourteen exercises from 2007 KLEINFELD, Before: ANDREW J. to The district court did not CALLAHAN, 2009.4 tailor M. and CONSUELO injunction any way, such SMITH, JR., as Judges. MILAN D. Circuit requiring measures had OPINION AND ORDER found sufficient before. The district court explanation why offers no more KLEINFELD, Judge: Circuit could allowed to proceed not be Navy advocacy and environmental Navy than years organizations have battled for about why it want to commit does for does not using sonar is too Navy training whether using mitigation itself to measures. There environment, particularly harmful to the explanation is no in the record for the something uses called whales. Navy’s position or of the breadth sonar, frequency active which ba- medium injunction. district court’s sically a loud noise off the hulls of bounces frequency active sonar has extremely quiet submarines to detect then- Medium be the most effective method of presence. may quite proven The loud noise be detecting quiet-running mam- diesel-electric sub- harmful to and other marine whales by emitting sound underwater at litiga- In a round of this marines previous mals. The 2007 to 2009 tion, pressure extreme levels. approved the district court had designed to train train- exercises at issue were settlement that allowed sonar land, sea, undersea, array the full ing proceed, required mitigation but per- of the Pacific Fleet to components The measures consisted of air “measures.” successfully complex, coordinated form precautions requiring such as some sailors whales, advocacy group, An and combat missions. looking to be on deck Council, and Natural Resources Defense reducing the decibel level when whales filed this action seeing plaintiffs four other present, prevented were weather by finding around, Navy, alleging against whales were or “sur- whether Winter, etseq. Agreement, 3. 16 U.S.C. NRDC v. Settlement 1. See 7, 2006). (C.D.Cal. July CV-06-4131-FMC Winter, Order, CV-07-00335-FMC 4. NRDC v. (C.D.Cal. 2007 WL 2481037 §§ 2. 42 U.S.C. 4321-4347. 2007). factor, hardships pub- the third impact after significant no assessment, instead of an environmental They lic fourth factor. are interest is the impact full environmental preparing a separate: statement, there by concluding test, plaintiff the traditional Under resources, coastal was no effect on (1) strong likelihood of must show: the National Environmental violated (2) merits, possibility success on the Act,6 Act,5 Policy Endangered Species irreparable injury plaintiff pre- Act,7 Procedures the Administrative (3) liminary granted, relief is not a bal- Management Act.8 Find- the Coastal Zone favoring plaintiff, hardships ance had demonstrated a ing plaintiffs (4) advancement of the inter- high of success on the merits probability cases). (in certain The alternative est Endangered Species all claims save certainty” irrepa- requires plaintiff of test that a demonstrate Act claim and a “near environment, harm to the the district rable probable either a combination of success Navy from medi- enjoined using court possibility on the and the of ir- merits frequency during um sonar the fourteen reparable injury ques- or that serious challenged training exercises.9 tions are raised and the balance of hard- emergency The filed an motion for ships tips in his favor. sharply These stay injunction pending appeal, of the represent points two formulations two grant. which we sliding on a the required scale which degree irreparable harm increases as

Two standards affect our deter mination, applicable the standard to dis probability of success decreases. injunctions, preliminary trict courts for They separate are not tests but rather appellate courts for the standard single outer reaches of a continuum.11 stays pending appeal. The district court required The district court was to consid- standard, apply part must a four or a er, only hardships” “balance of as be- sliding critical to our re scale. What is plaintiffs tween the as an view for abuse of discretion10 is that the agency, Executive Branch but also the only district court consider not must “public having interest” in a trained and also, harm, possibility irreparable but Navy. customarily give effective We con- cases, appropriate public interest. siderable deference to the Executive public thing not the interest same judgment regarding foreign poli- Branch’s against as the to the hardship party whom injunction cy was issued. Balance and national defense.12 12. E.g., Navy Egan, §§ Dep't 5. 42 U.S.C. 4321-4347. (1988) 98 L.Ed.2d 918 § 6. 16 U.S.C. 1536. (noting Congress specifically that "unless has otherwise, provided traditionally courts etseq. § 7. 5 U.S.C. 551 upon authority been reluctant to intrude military etseq. 8. 16 of the Executive in U.S.C. 1451 national secu affairs.’’). rity argues Egan The dissent Winter, CV-07-00335-FMC, Order, 9. NRDC v. was "not an environmental case” and that it (C.D.Cal. 2007). 2007 WL 2481037 heavily authority relied on "the President’s as True, applies Commander in Chief.” NEPA Form, Int’l, Sports 10. See Inc. v. United Press Navy, to the but that is not a distinction that Inc., (9th Cir.1982). 686 F.2d 752 exception a makes difference. There is no (9th Taylor Westly, authority 488 F.3d 1200 as Commander in President’s Cir.2007) added). Chief for environmental cases. suffer;” That is harm the Defendants will in Hilton v. Court Supreme factor, not the fourth. There is the third stan articulated the similar Braunskill13 not a word in the order about the interest required apply courts are appellate dard from the public, distinguished of the as judgments pending app stays of civil Navy, in war prepared- interest of the requires us to con This standard eal.14 ness: sepa interest lies” public “where the sider in addition to “whether rately from and bal- The Court is also satisfied irreparably stay] will be applicant hardships tips grant- [for ance of favor stay:” a injured injunction, absent harm to the ing an as the Plaintiffs, environment, inter- of a regulating issuance The factors (1) outweighs the harm that Defendants stay ap- est whether the stay [include]: using prevented would incur if from strong showing plicant has made (2) sonar, merits; MFA absent the use of effective on the likely he is to succeed measures, subset of irrepara- applicant will he whether (3) regular part their activities one of one stay; whether bly injured absent period.19 for a limited state substantially will issuance in the injure parties the other interested “public interest” The reference (4) public where the proceeding; only to the interest district court extends interest lies.16 mammals, especially in marine protecting whales, in national not the interest beaked a “failing” that even emphasizes Hilton defense. merits, of success on the strong likelihood to seeking stay may be entitled party very indeed have a con- public does if it can demonstrate a “substantial

prevail natu- preserving in our siderable interest and the second and relatively case on the merits” especially ral environment in favor.17 The fourth factors militate its an inter- whales.20 But also has scarce give currently court did not serious consider- are district est in national defense. We war, interest factor. All our countries. There public engaged ation to the two from 2007 to colleague up guarantees extending can come with is are no dissenting other any against discussion at other time oblique an reference the oral 2009 or us, our deciding engage to or All the order con- countries preceding the order. necessary engage to determining that it is conclusory “the is a remark about tains added); Braunskill, 770, see Fed.R.Civ.P. 16. Id. v. 481 U.S. 107 13. Hilton 2113, (1987). 62(c); 8(a). R.App. 724 S.Ct. 95 L.Ed.2d Fed. P. accurately notes that Hilton 14. The dissent 778, Braunskill, 770, 17. Hilton corpus, stay but involved a of a writ of habeas (1987). 724 95 L.Ed.2d 107 S.Ct. erroneously argues that the Hilton standard apply not to an environmen- would therefore documents submit- 18. We reviewed classified says in Hilton that it is tal case. The Court court and by the to the district ted governing using "the traditional standards coming decision. to our considered them interpret judgments” the rules stays of civil to stays corpus, id. at of writs of habeas Winter, Order, regulating CV-07-00335- and "the factors 19. NRDC same,” (C.D.Cal. generally are 2481037 the issuance of at 2007 WL FMC no 7, 2007). at S.Ct. 2113. That leaves id. 107 they position that are room for the dissent’s that, "generally as the dis- the same” or argument of the dissent is 20. The main says, apply here.” sent "Hilton does not Navy. We do not dis- applies to the NEPA agree. at S.Ct. 2113. 15. Id. safety years necessary irrep- for two was to avoid countries. whales other safety and so must the arable harm to the environment. The dis- weighed, must be country. our approval of our warriors. And of trict court’s of similar previous subject exercises argues dissenting colleague also Our can- requires explanation, some which we proceed that “the is free granting injunc- not find in the order training with its MFA sonar exercises time tion, why longer that is no sufficient. area that are similar outside the SOCAL why it explain long- Nor does the no in the area.” The to conditions proposes er to use these meas- assessment,21 though, ex- ures, against a factor that militates plains particular that “this location” mat- full probability of success on the merits document, According ters.22 to that appeal, though, district court. On because duplicative is no location where “[t]here injunction, of the breadth of the land, sea, airspace are undersea assets district court’s failure to consider by military controlled authorities that al- factor, Navy’s fourth of at probability full THIRD play low Fleet partial high. least success on the merits is operational actors.”23 The environmental least, Navy presents At the a “substan- explains further that none of assessment tial” appeal, case on and the “second and locations, potential alternative includ- Ap- fourth factors”27 militate in its favor. Hawaii, ing “provide Alaska and the full plying independently appeal duty on our complement range infrastructure neces- realistic, under Hilton28 to fac- consider the fourth sary typical, to conduct coordinat- tor, interest, obligated ed we are training.”24 COMPTUEX and JTFEX Although training operations grant stay pending one-time appeal prelimi- nary injunction. have been conducted off Alaska and Ha- waii, says the environmental assessment Our conclusion is limited to what is be- usage that “routine of these areas us, injunction fore a district court absolute- major for the exercises infeasible.”25 ly Navy’s prohibiting the use of medium support Because the record offers no frequency training pro- active sonar in its it, respectfully disagree we with our dis- gram tailoring injunction rather than senting colleague’s that implication sug- measures. We do not Navy ought to do whatever needs to do gest injunction whether an allowing the someplace than other off the coast of subjecting exercises but them to Southern California. result, might lead to a different injunction

The district court did not because no such is before us. explain broad, why injunction says The environmental against absolute assessment frequency the use of the medium there significant active would be no environmen- complex training sonar these exercises tal impact used lookouts for Navy, Composite Training 21. United States 24. Id. at 2-33. Unit Exercises and Joint Task Force Exercis- es, Environmental Envi- Assessment/Overseas 25. Id. Assessment, Final, ronmental available at http://www.navydocuments.com/documents/ Braunskill, 770, 778, 26. See Hilton v. 481 U.S. COMPTUEX-JTFEXEA-OEA.pdf (February (1987). 107 S.Ct. 95 L.Ed.2d 724 2007) (last 29, 2007). visited 27. See id. 22. Id. at 2-32.

23. Id. Id. at 107 S.Ct. 2113. mammals, personnel in the use of MFA sonar made binoculars avail- marine lookouts, and reduced the noise the outcome of the technology pending able to ducting” conditions or “surface during by conducting merits of this case MFA the lookouts foggy it was so when range. sonar exercises outside marine mammals. able to see would not be fact, In the district court received evidence testing MFA sonar tech- appeal of this Expeditious determination nology “all all the time.” It over world deal of the risk to great can eliminate a Navy’s tack sharp is the starboard from its country and to marine wildlife. both our training practices recent that has left it briefing expedited order Accordingly, we laws, fighting irons not a appeal. provi- of this calendaring 2.2(a) by rule shall failure the district court to consider sions of Ninth Circuit 31— briefing A sched- apply appeal. to this national or the interest. Any separate out in a order. ule is set appeal, we review the issuance of a On to extend time to file the briefs motions preliminary injunction for abuse of discre- strongly will be disfavored. ACLU, tion. Ashcroft stay Navy’s emergency motion to (2004). 159 L.Ed.2d 690 injunction entered preliminary standard, a Under the abuse of discretion 7, 2007 is August district court on “a reviewing court cannot reverse absent GRANTED.29 and firm conviction that the dis- definite judg- trict court committed a clear error of SMITH, JR., Judge, MILAN D. Circuit upon ment in the conclusion it reached dissenting part concurring part. weighing of the relevant factors.” SEC respectfully granting I dissent to the (9th Cir.2001). Coldicutt, 939, 941 258 F.3d preliminary court’s of the district determining whether The standard did not injunction. The district court grant stay pending appeal is similar to pre- when it issued a abuse its discretion con applied by a district court when Navy’s use liminary injunction against the in preliminary of a sidering the issuance planned certain ex- of MFA sonar Hodel, junction. Tribal Vill. Akutan v. range through Janu- ercises the SOCAL Cir.1988). (9th A pre 859 F.2d ary 2009. injunction may be issued when liminary of Navy probability has not shown a The “either: moving party the demonstrates or on the merits of this case raised success (1) a of success on the merits likelihood the merits. In questions serious about injury; possibility irreparable of in- weighing possibility irreparable the (2) going to the questions or that serious determining jury, balancing hardships, and the balance of merits were raised lies, public the interest the district where moving tips sharply par in hardships [the carefully weighed court considered Martin, v. ty’s] favor.” Lands Council interest issues security public national Cir.2007) (9th 636, (quoting 479 F.3d 639 by very recent- presented this case. Until City Inc. v. Los Clear Channel Outdoor Navy employed some environmental ly, the (9th Cir.2003)). 810, 813 Angeles, 340 F.3d rejects in the measures it now majority, we are also by As noted Moreover, security. name of national in- required to consider “where ability to continue Navy has the GRANTED, evi- it contains new mo- because 29. Resources Defense Council's Natural presented court. See not to the district Declaration dence tion to strike the "Unclassified 10(a). Yoshihara,” R.App. All other motions are by Fed. P. submitted Addendum of David brief, panel. consideration to the merits reply referred for Defendants-Appellants with their 866 a in certain cases. Hilton v. demonstrate ‘substantial case on the

terest lies” Braunskill, 770, 776, 107 S.Ct. 481 U.S. merits’ and the second and fourth factors (1987); Taylor 724 95 L.Ed.2d in militate its favor.” But Hilton was a (9th Cir.2007). 1197, 1200 Westly, 488 F.3d case, an corpus habeas environmental majority, respectfully I differ case, and deals with the standards for however, concerning “public how the inter prisoner releasing from confinement in applies est” consideration this case. 775-76, pending appeal. Id. 107 S.Ct. Navy Egan, Department “public 2113. The interest” considered (1988), 518, 108 S.Ct. 98 L.Ed.2d 918 Hilton was whether the lower court could majority for the by proposition cited properly dangerousness take the specifically has Congress pro “unless petitioner part habeas into account as otherwise, traditionally vided courts its decision whether to the petition- release upon been reluctant to intrude the authori pending appeal. er Id. at 107 S.Ct. military ty of the Executive in and national court concluded that the court matters,” distinguishable security from so, may despite do prefer- the traditional Egan case. the facts this involved the ence for release. Id. at discharge Navy employee of a whose secu- “public 2113. The interest” this case is denied; rity been clearance had was not very different weighing and constitutes a an environmental case. Id. at security” public between the “national in- Supreme S.Ct. 818. Court held that by terest advocated versus authority classify and control access “public environmental interest” advocated bearing security to information on national Appellees. not, my Hilton does and to determine which individuals have view, permit this court to decline to consid- right to access such information flows requirement er the show authority from the President’s as Com probability of success on the merits apart mander in Chief and exists from grant order to of the district court’s explicit congressional grant. Id. at injunction. “ It also noted a ‘compel S.Ct. 818. 1. The fails to meet its burden of ling withholding interest’ in national secu showing probability of success on the mer- rity per information from unauthorized its and questions go- fails raise serious sons in the course of executive business.” ing to Although the merits of this case. “public Id. But interest” considerations in Congress easily could include a national very environmental cases are different security exemption in cases, the National Envi- from those clearance (“NEPA”), military long Policy ronmental Act required has been U.S.C. 4321-4347, §§ comply with NEPA and numerous other it has not done so. As we laws, though even national stated in Obispo San Luis Mothers for Peace, considerations 1035, have been in 449 F.3d no “[t]here is See, e.g., volved. Obispo San Luis Moth ‘national exception defense’ to NEPA.... ers v. Nuclear Regulatory Peace Com Navy, just The agency, like federal for (9th mission, 1016, 449 F.3d Cir. carry must out its NEPA mandate to the 2006), and cases cited therein. possible fullest extent and this mandate weighing includes the environmental costs majority

The also cites Hilton v. [project] of the even though project the Braunskill, 770, security implications.” has serious (1987), Id. 95 L.Ed.2d 724 proposition for the “ (quoting No ‘failing’ Aldridge, that even a GWEN Alliance v. strong likelihood of (9th Cir.1988)) (inter- merits, on F.2d party seeking success the the a 855 stay omitted) may prevail be entitled to if it quotation can nal marks added). Navy’s employed Environmental As the same The (“EA”) planned reports Navy January sessment the from mid-2006 to of may approxi result in exercises NEPA, Congress 2007. As with the creat- 170,000 of marine mam mately “takes” security exemption ed no national to the and, district court’s according to the mals CZMA, Navy the to appears be 8,000 order, may “approximately include Navy violation of the CZMA. See id. The cause a powerful enough to exposures yet any legally has not offered viable de- affected threshold shift the temporary comply fense to its failure to with CZMA. an hearing sense of addi mammals’ Accordingly, Navy the has not met its injury to permanent of tional 466 instances showing probability burden success holding ziphiid beaked and whales.” Our to on the merits and fails raise serious Biodiversity Project in Blue Mountains questions going to the merits of this case. (9th Blackwood, Cir.1998), 161 F.3d 1208 majority does not address this re- plaintiffs that in order for the instructs quired prong Navy of the test must Navy a claim that must prevail on stay. meet a order to obtain Hilton Impact Environmental State prepare an here, did, if apply does not but even it (“EIS”) exercises, “a ment for the SOCAL Navy still cannot meet its burden to show significant ef plaintiff need not show It that it has a case on the mer- enough in fact occur. “substantial fects will questions its,” to raise substantial plaintiff requires. as Hilton a project may significant whether Navy 2. The also fails to show that it Id. at 1212 effect on the environment.” irreparable will suffer harm the (internal marks and citations quotation granted or the balance of hard- omitted). found that The district court favor. It also ships tips sharply its fails Navy’s EA and other evidence had compelling public to make the case for certainty that the use of shown to a “near Navy’s probable interest that overrides the SOCAL exer planned MFA sonar of NEPA and CZMA. From violations harm to the irreparable cises will cause mid-2006 January Navy -of plaintiffs’ and to declarants.” environment of environmental used set stage at this Accordingly, appears measures for all MFA sonar exercises oth- Navy will have to proceedings that adopted than RIMPAC. It similar er engages an before it prepare EIS it conducted MFA sonar measures when area. training exercises within the SOCAL the 2006 RIMPAC part exercises as 4332(2)(C); Ecosys Native 42 U.S.C. Hawaii, protec- near and added additional States Forest tems Council United planned chokepoint and isobath tions (9th Cir.2005). Serv., 1233, 1239 428 F.3d January exercises. From mid-2006 EIS, Navy yet prepared has not an MFA sonar operate did not any legally via yet and it has not offered nautical miles of the coast. within twelve re preparation defense to the EIS ble January of From mid-2006 to quirement. marine Navy enlarged safety zone for to submit its Similarly, failed significant certain surface mammals when consistency for a determi- sonar activities ducting existed. From mid- conditions nation to the California Coastal Commis- January followed 2006 to (“CCC”) required by as the Coastal sion visibility during low procedures certain (“CZMA”), Management Act Zone conditions, whereby if detection of a ma- 1456(c)(1), refused to U.S.C. and then possible not out to the rine mammal was proposed the comply with Commission’s zone, measures, safety Navy the would prescribed some of which are mitigating given language scope if marine mammals the limited power down sonar it could not use. present injunction, in the zones Navy proceed were the the is free to January approximately to From mid-2006 training at time with its MFA sonar Navy focused moni- provided the exercises outside the area that are SOCAL before, toring during for mammals and similar to the in the conditions chokepoint after exercises. majority says unpersua- area. The this is Navy sive because the claims “there is no yet, commencing early some time in And (or land, sea, duplicative in location where under- providing convincing without cases, any) compelling by airspace some evidence sea and assets are controlled change policy, Navy the has declined to military full play authorities allow employing the referenced envi- continue by training operational THIRD Fleet ac- mitigation ronmental measures it used already tors.” But the district court con- January from mid 2006 to let Navy sidered this contention the willing adopt alone been to the further hearing found as follows at the for the CCC, sought by measures the that would injunction: preliminary likely permitted have it to conduct exercis- papers is not clear from the nor What range. es in the SOCAL fully ques- was it ever addressed in the security trump

There is no “national tion of the Hawaii exercises is the fact Navy ignore card” that allows the only place this is not the in the objectives. By NEPA to achieve other world testing go where this kind of can declining security to write a national ex on. NEPA, emption Congress into has evi dently jeopard that it not concluded does There is nothing me to indicate before security require military ize national places there are not other in the world NEPA, comply and the courts And, testing go where this could on. agreed. e.g., Obispo See San Luis Moth fact, lawsuit, larger the court has Peace, ers More F.3d 1035. that, fact, testing going evidence on over, unless someone can demonstrate that time, all all over world jeopardized security our national added). and failed to train properly our involved In making findings, these the district court military personnel by adopting the refer considered the same classified documenta- enced did, tion well a far we as as more extensive period from mid-2006 to Janu set of documents and tradi- studies. We ary imagine why imple is hard to tionally defer to findings of the district menting some of those same environmen court concerning matters of fact. This so,

tal measures now would do particularly should be true here where especially doing open possi so would much of the counter documentation of the bility range. within the SOCAL appellees before us as it was before 3. As further evidence that neither the court. district security nor national will suffer ir- my colleagues majori- Unlike reparable harm or that the interest ty, I am satisfied the district court by leaving will be harmed the district carefully weighed national preliminary injunction court’s in place pen- public interest considerations before issu- lite, already completed dente has ing preliminary injunction in this case. three planned of its fourteen SOCAL exer- cises The record shows that the district court February scheduled from 2007 to January importantly, 2009. Even more pertaining reviewed certain documentation pri- weighs they in camera harm to the security matters to national defendants if injunction. The court issuing prevented using its were MFA or sonar from that the court clearly shows transcript also during Southern these ex- California in- national carefully considered ercises without effective injunction. issuing terests before measures. Well, your say it is clear let [me] from added). that I have everything papers from light In of the district court’s actions testing sonar read that the MFA active statements, I find no abuse of discre- to national important. It’s critical merely tion because the words “national absolutely problem no security. I have security” appear do not in the district reality of it. concept or with injunction. I granting court’s order nor papers is not clear from the What respectfully also note that is the ques- in the fully it ever addressed was measures, rejected mitigation that has not exercises is the fact tion of the Hawaii plaintiffs. the district court or the only place this is not testing go kind of can world where this court The district did not abuse its dis- on. in handing preliminary cretion down its

injunction, I respectfully dissent. nothing me to indicate There is before I majority do concur with the that this places in the world there are other panel case should be heard a merits And, in testing go could on. where this possible our court at the earliest date. I lawsuit, fact, has larger in the the court granting plaintiffs also concur in the that, fact, on testing going evidence motion to strike the Declara- “Unclassified all the world all the time. over of David tion Addendum Yoshihara.” recognize significance while I So saying these exercises cannot fourteen way they’ve pro- been

be conducted mitiga- little or no

posed, which is with

tion, not mean that there ivill be it does testing our

no active MFA sonar Navy. That’s not the result here. SHERMAN, Brent Petitioner-

Appellant, tremendously important, are The issues something easy and it’s never to balance UNITED STATES PAROLE COMMIS safety to significant as as wildlife SION; Hood, Warden; A. Robert may hinge on national secu- issues Daniels, Warden, Respon Charles A. Navy. rity injury or harm to the dents-Appellees. plaintiffs I that the remain satisfied certainty a near established to No. 05-35364. SO- planned use of MFA sonar Appeals, States Court of United irreparable CAL exercises will cause Ninth Circuit. plain- harm to the environment and tiffs’ declarants. March Argued and Submitted the balance The couri is satisfied 4, 2007. Sept. Filed hardships tips granting favor environment, injunction harm to the as out- plaintiffs, interest

Case Details

Case Name: Natural Resources Defense Council, Inc. v. Winter

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 31, 2007

Citation: 502 F.3d 859

Docket Number: 07-56157

Court Abbreviation: 9th Cir.