memo in favor of stay pending appeal

8/14/2019 Memo in Favor of Stay Pending Appeal

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THOMAS P. OBRIENUnited States AttorneyLEON W. WEIDMANChief, Civil DivisionMONICA L. MILLERAssistant United States Attorney

RONALD J. TENPASAssistant Attorney GeneralEnvironment & Natural Resources Division

MICHAEL R. EITEL, Neb. Bar No. 22889Trial Attorney, Wildlife & Marine Resources SectionUnited States Department of Justice1961 Stout Street, 8th Floor, Room 812Denver, CO 80294Tele: (303) 844-1479 / Fax: (303) 844-1350E-mail: [email protected]

CHARLES R. SHOCKEY, D.C. Bar No. 914879GUILLERMO A. MONTERO, Ma. Bar No. 660903LUTHER L. HAJEK, D.C. Bar No. 467742Trial Attorneys, Natural Resources SectionUnited States Department of JusticeEnvironment and Natural Resources DivisionP.O. Box 663, Washington, DC 20044-0663Tele: (202) 305-0492/(916) 930-2203Fax: (202) 305-0274/(916) 930-2210E-mail: [email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

NATURAL RESOURCESDEFENSE COUNCIL, INC.,et al.,

Plaintiffs,

v.

DONALD C. WINTER,Secretary of the Navy, et al.,

Defendants.

))))))

)))))))

Case No. 8:07-cv-00335-FMC (FMOx)

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFAPPLICATION FOR STAY PENDINGAPPEAL

Date: TBDTime: TBD

Hon. Florence-Marie CooperU.S. District Judge

Case 8:07-cv-00335-FMC-FMO Document 97 Filed 01/09/2008 Page 1 of 29


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TABLE OF CONTENTS

PAGE

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3I. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. PROCEDURAL BACKGROUND AND THE COURTSJANUARY 3, 2008 ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. THE NAVY WILL LIKELY PREVAIL IN THEMERITS OF ITS APPEAL BECAUSE THE INJUNCTION

IS OVERBROAD AND DEPRIVES THE NAVY OFREALISTIC TRAINING NECESSARY FOR NATIONALSECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Conditions Imposed Deprive the Navyof Realistic Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

1. The Record Demonstrates that theInjunction Will Deprive the Navy ofNecessary Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. The Navy Is Entitled to Deference in Mattersof National Security, Including Training

and Military Readiness . . . . . . . . . . . . . . . . . . . . . . . . 14II. THE EQUITIES FAVOR GRANTING A STAY . . . . . . . . . . . . . . 15

A. The Navys MFA Sonar Training Is CriticalTo National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. In a Time of War, the Public Interest FavorsGranting a Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. The Navys Compliance With the RelevantSubstantive Statutes, the MMPA and ESA,Weighs in Favor of Granting a Stay . . . . . . . . . . . . . . . . . . . 19

D. The Harm to Plaintiffs of a Stay Would be Minimal . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23



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TABLE OF AUTHORITIES

FEDERAL CASES PAGE

Am. Bioscience v. Thompson, 243 F.3d 579 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . 9

Artukovic v. Rison, 784 F.2d 1354 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . 5Asarco, Inc. v. EPA, 616 F.2d 1153 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . 9

Cuomo v. Nuclear Regulatory Commn, 772 F.3d 972 (D.C. Cir. 1985) . . . . . . . . 5

Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) . . . . . 21

FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204 (9th Cir. 2004) . . . . . . . 8,13

Gilligan v. Morgan, 413 U.S. 1 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) 4,5

Holmes v. Cal. Army Natl Guard, 124 F.3d 1126 (9th Cir. 1997) . . . . . . . . . . . 14

Idaho Watersheds Project v. Hahn, 307 F.3d 815 (9th Cir. 2002) . . . . . . . . . . . . 15

Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970 (9th Cir. 1991) . . . . . . . 1

Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150(6th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) 21

Natl Audubon Socy v. Dept of the Navy, 422 F.3d 174 (4th Cir. 2005) . . . . . 14

NRDC v. Pena, 20 F. Supp. 2d 45 (D.D.C. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 17

NRDC v. Winter, 502 F.3d 859 (9th Cir. 2007) . . . . . . . . . . . . . . . 4,5,13,14,16,17

NRDC v. Winter, F.3d , No. 07-56157, 2007 WL 3377229, at *1 (9th Cir. Nov.13, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,4,6,7,13,21

Population Inst. v. McPherson, 797 F.2d 1062 (D.C. Cir. 1986) . . . . . . . . . . . . . . 5

State of Wisconsin v. Weinberger, 745 F.2d 412 (1984) . . . . . . . . . . . . . . . . . . . 13

United States v. Oakland Cannabis Buyers Coop, 532 U.S. 483 (2001) . . . . . . 21

Virginian R. Co. v. Railway Employees, 300 U.S. 515 (1937) . . . . . . . . . . . . . . 21

Washington Metropolitan Area Transit Commn v. Holiday Tours, Inc., 559 F.2d841 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5



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iii

FEDERAL STATUTES AND REGULATIONS PAGE

10 U.S.C. 5062 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15

16 U.S.C. 1371(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,21

16 U.S.C. 1456(c)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1740 C.F.R. 1506.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Federal Rules of Civil Procedure 62(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6

Federal Rules of Civil Procedure 62(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6

Fed. R. App. P. 8(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6

Fed. R. App. P. 8(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6

FEDERAL REGISTER71 Fed. Reg. 38710, 38720 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



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1

INTRODUCTION

Pursuant to Fed. R. Civ. P. 62(c) and 62(e), Fed. R. App. P. 8(1)(A), (C),

and Local Rule 7-19, Defendants Donald C. Winter, Secretary of the Navy, et al.

(Navy), respectfully submit the following Memorandum of Points andAuthorities in Support of Defendants Ex Parte Application For A Stay. For the

reasons set forth below, a stay pending appeal is amply warranted in this case.

On January 3, 2008, the Court issued a preliminary injunction prescribing

conditions that the Navy must implement when it employs mid-frequency active

(MFA) sonar during the challenged Composite Unit Training Exercises

(COMPTUEX) and Joint Task Force Exercises (JTFEX) exercises scheduled

to occur in the Southern California Operating Area (SOCAL). January 3, 2008

Order (Docket No. 91) (January 3 Order). This order was issued on remand

following the Ninth Circuits order vacating the blanket preliminary injunction

against the Navys use of MFA sonar during the exercises issued by this Court on

August 7, 2007 (Docket No. 50) (August 7 Order). The Ninth Circuit overturned

the August 7 Order, stating that an overbroad preliminary injunction is an abuse

of discretion. NRDC v. Winter, F.3d , No. 07-56157, 2007 WL 3377229, at*1 (9th Cir. Nov. 13, 2007) (citing Lamb-Weston, Inc. v. McCain Foods, Ltd., 941

F.2d 970, 974 (9th Cir. 1991)). The Ninth Circuit instructed this Court to narrow

its injunction so as to provide mitigation conditions under which the Navy may

conduct its training exercises. Id. The Navy contends that the Courts January 3

Order is contrary to established equitable principles and does not comply with the

Ninth Circuits directive and the NDE determination by the Secretary of Defense.

Although the Court may not have recognized the full impact that its January

3 Order would have on the Navy, in fact, the conditions imposed by the Court

severely degrade training and would make it unlikely that the Navy could

effectively train and certify naval strike groups for deployment overseas. For

instance, the Court imposed a 2200 yard shutdown whenever marine mammals are



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spotted by Navy lookouts. This condition is a tenfold increase in the existing

shutdown zone and would increase by over 100 times the area within which the

Navy must cease sonar operations due to the presence of marine mammals. Based

on data from previous exercises, this would result in a roughly fivefold increase inthe number of required shutdowns. Application of this condition is infeasible and,

by raising the potential for regular interruptions to training, would create

significant and unacceptable uncertainty into the Navys training and deployment

cycles. The Court also has imposed a 2200 yard shutdown around helicopter

dipping sonar and sonobuoys, sonar sources with much lower intensity than hull-

mounted sonar. This shutdown also could result in frequent interruptions to

training. The Court would also require a dedicated aircraft to monitor for marine

mammals at all times when MFA sonar is in use. This raises safety concerns of

which the Court may not have been aware. The Courts restriction on training in

significant surface ducting conditions is also a serious concern because these

conditions, and learning how to recognize and take advantage of them, are critical

to sonar operators. The court erred in imposing the conditions in the January 3

Order, as explained below and in the Classified Declaration of Admiral GaryRoughead, Chief of Naval Operations (Roughead Declaration) (submitted ex

parte/in camera in support of the Navys stay application). Accordingly, the Navy

raises substantial questions on the merits that the Courts injunction will not allow

the Navy to train and is, therefore, overbroad and in violation of the Ninth Circuits

order.

If the Courts injunction is not stayed, there is a significant risk of severe

harm to the United States, Navy Sailors and Marines, and the public. Naval strike

groups must be able to train using MFA sonar so that they may defend themselves

from attack from quiet, diesel-electric submarines and so that the U.S. Navy can

effectively secure areas of the worlds oceans for safe travel and deter attacks on

the vessels of the United States and other nations. See, e.g., Classified Declaration



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1/ The classified Branch Declaration and Yoshihara Declaration were submitted incamera in support of Defendants Opposition to Plaintiffs Motion for a PreliminaryInjunction (PI Opp.) (Docket No. 25) and Defendants Memorandum Regarding aTailored Preliminary Injunction (Def. Mitigation Br.) (Docket No. 66).

3

of Rear Admiral Ted N. Branch (Branch Decl.); Declaration of Rear Admiral

John M. Bird (Bird Decl.) (Docket No. 35); Classified Declaration of David

Yoshihara (Yoshihara Decl.); Declaration of Martin N. May (May Decl.)

(Docket No. 26).

1/

Thus, not staying the Courts injunction would result insignificant impact to the national security and the public welfare. Especially given

that no harm to marine mammals has been documented during the first five training

exercises, any negligible benefit to marine mammals that may result from the

Courts conditions does not outweigh the potential for severe harm to national

security and the compelling public interest in a strong national defense at home and

abroad.

Accordingly, based upon the substantial questions regarding the scope of the

Courts order, the impact on the Navy of following the Courts conditions, as

reflected by the assessment of the Nations most experienced naval officers, and

the marginal benefit to marine mammals if the order is not stayed, this Court

should stay the effect of its order pending the Navys appeal. Because the next

exercise is scheduled to go forward in January, and to build in time for the appeal,

the Navy requests a ruling from this Court as soon as practicable and no later thanJanuary 14, 2008.

BACKGROUND

I. FACTUAL BACKGROUND

The factual background of this case is presented in Defendants Motion to

Dismiss or Stay at 3-7, submitted on June 22, 2007 (Docket No. 23), Defendants

Opposition to Plaintiffs Motion for a Preliminary Injunction at 1-3, submitted on

July 9, 2007 (Docket No. 25), and in Defendants Memorandum Regarding A



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Preliminary Injunction at 1-4, submitted on December 14, 2007 (Docket No. 66),

and will not be repeated here.

II. PROCEDURAL BACKGROUND AND THE COURTS JANUARY 3,2008ORDER

On August 7, 2007, this Court entered an order granting in part Plaintiffsmotion for a preliminary injunction, and the Court issued a blanket preliminary

injunction prohibiting the Navy from engaging in any of the upcoming

COMPTUEX and JTFEX exercises scheduled to occur off the coast of southern

California. See August 7 Order. On August 14, 2007, the Navy appealed the

Courts August 7 Order and moved the Ninth Circuit for a stay of the injunction

pending appeal. On August 31, 2007, the Ninth Circuit granted Defendants

emergency motion to stay the preliminary injunction pending appeal on the

grounds that the Court had failed to adequately consider the harm to the Navy and

the publics interest in having a trained and effective Navy. NRDC v. Winter,

502 F.3d 859, 862 (9th Cir. 2007). On November 13, 2007, the Ninth Circuit

remanded the case to the district court to narrow its injunction so as to provide

mitigation conditions under which the Navy may conduct its training exercises.

NRDC, 2007 WL 3377229, at *1.On remand, this Court has issued an order re-affirming its prior findings

contained in its August 7 Order, see January 3 Order at 4:10-13:3, and issued

affirmative injunctive relief requiring the Navy to implement certain mitigation

measures during upcoming COMPTUEX and JTFEX exercises. Id. at 13:5-18:10.

The Navy now moves for a stay pending appeal of the January 3 Order.

STANDARD OF REVIEW

In determining whether a stay pending appeal should issue, the courts

generally consider: (1) the likelihood that the party seeking a stay will prevail on

the merits of the appeal; (2) the likelihood of irreparable harm to the movant if the

stay is denied; (3) the possibility of substantial harm to others resulting from the

stay, and (4) the public interest in granting the stay. Hilton v. Braunskill, 481 U.S.



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submitted to this Court both in opposition to Plaintiffs motion for injunctive relief

and the briefing on the appropriate scope of a tailored preliminary injunction

demonstrate that Plaintiffs interests will not be irreparably harmed by a stay and

that the interests of the Navy and the public will suffer significant irreparable harmif a stay does not issue. Therefore, this Court should issue a stay pending an appeal

by the Navy. The Ninth Circuit has retained jurisdiction of this case pending the

district courts issuance of a tailored preliminary injunction. See NRDC, 2007 WL

3377229, at *2. Accordingly, this motion is appropriately brought pursuant to both

Fed. R. Civ. P. 62(c), (e) and Fed. R. App. P. 8(a)(1)(A), (C).

I. THE NAVY WILL LIKELY PREVAIL ON THE MERITS OF ITS APPEAL

BECAUSE THE INJUNCTION IS OVERBROAD AND DEPRIVES THE NAVY OF

REALISTIC TRAINING NECESSARY FOR NATIONAL SECURITY

In determining whether to issue a stay, the Court must evaluate the Navys

likelihood of success on appeal. As demonstrated below, there are, at a minimum,

serious questions as to the validity of the Courts decision that warrant a stay

pending appeal to permit appellate review before vital training exercises to the

national security of the United States are compromised by the courts injunction.In the circumstances of this case, the standards for such a stay are manifestly met.

A. The Conditions Imposed Deprive the Navy of Realistic Training

In imposing conditions that have never previously been imposed on the

Navy, the Court would require the Navy to restrict its training in ways that would

prevent Sailors from properly learning how to use MFA sonar to combat the risk of

submarine attack. The Courts 2200 yard shutdown zone is especially onerous and

would risk the Navys ability to certify and deploy strike groups on the basis of

marine mammal presence in the training area. The Courts conditions and their

effects on the Navys training are discussed below, and, in addition, we point out

that the Courts imposition of conditions is in contradiction to the assessment of



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experienced naval officers and did not afford the Navy the deference owed to the

Executive Branch on matters of national defense.

1. The Record Demonstrates that the Injunction Will Deprive

the Navy of Necessary TrainingDefendants will contend on appeal that this Court failed to appropriately

consider or balance the harm to the Navy and to the public interest stemming from

the imposition of the Courts conditions on vital Navy training exercises.

Respectfully, the Courts analysis of the adverse effects on training is contradicted

by the uncontroverted evidence in the record demonstrating that the imposition of

various conditions will severely and irreparably degrade the Navys training. As

such, Defendants will contend that the Courts order, which prevents effective

training and runs counter to the assessment of the Navy regarding degradation on

training, fails to comply with the Ninth Circuits requirement that the injunction be

narrowly tailored so as to provide mitigation under which the Navy may conduct

its training exercises. NRDC, 2007 WL 3377229, at *1. Additional explanation

of the impact of the conditions is described in the Classified Roughead Declaration

(submitted ex parte/in camera).2200 yard shutdown zone. The Court has imposed an MFA sonar shutdown

requirement whenever a marine mammal is spotted within 2200 yards of a ship.

January 3 Order at 15. This shutdown would substantially impair the Navys

training. Some of those effects are described in testimony submitted with the

Navys briefing regarding mitigation:

Plaintiffs proposed shutdown zone of two kilometers contains more

than 100 times the area of the Navys current 200 yard shutdown

zone. This restriction exponentially increases the number of times

that a ship will have to shut down active sonar,preventing realistic

training and depriving ships of valuable submarine contact time.

Operational commanders would lose awareness of the tactical



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3/Mit. Br. Ex. refers to the exhibits to the Declaration of Luther L. Hajek filed insupport of Def. Mitigation Br. (Docket No. 66). PI Opp. Ex. refers to the exhibitsto the Declaration of Luther L. Hajek In Support of Defendants Opposition(Opposition) to Plaintiffs Motion for a Preliminary Injunction (Docket No. 34).

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situation through the constant stopping and starting of MFAS leading

to exercise event disruption.

Bird Supp. 11 (emphasis added). Data from previous exercises show that this

would result in a roughly fivefold increase in the number of required shutdowns.In addition, a shutdown at a critical part of the exercise would waste days of effort

in getting to that critical point and undermine the purpose of the exercise.

Contrary to the testimony submitted to the Court, the order states that [a

2200 yard shutdown zone] represents a minimal imposition of the Navys training

exercises. January 3 Order at 15:18-19. The Courts failure to consider the

Navys testimony, without presenting any detailed factual or legal findings, is in

error. See FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir.

2004) (vacating preliminary injunction for failure to make sufficient factual

findings).

The shutdown zone imposed by the Court also did not appropriately consider

the extensive testimony submitted by the Navy regarding the potential effects on

marine mammals of exposure to MFA sonar at certain distances and relies on

evidence that the Court previously rejected. The maximum shutdown zone that theNavy has ever employed for MFA sonar, based on its consultation with scientists at

NMFS with decades of experience in marine mammal biology, is 200 meters.

NDE I, Mit. Br. Ex. 2 at 12.3/ As explained in the Navys testimony to the Court:

The Temporary Threshold Shift (TTS) (195 dB) is a scientifically measured, peer-

reviewedvalue that identifies a causal relationship between MFAS exposure level

and a temporary harm to marine mammals. Bird Decl. 50 (emphasis added).

Under the Navys current safety zone and power down procedure, at 200 yards, a



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marine mammal would be exposed to only 3% of the energy required to cause

temporary harm. Id. The Court does not address this evidence, nor is the Courts

analysis consistent with its previous findings that the Navys establishment of dB

thresholds, on which the safety zone is based, constituted a reasoned decisionbased on its evaluation of the evidence. August 7 Order at 10 (citation omitted).

Furthermore, the Courts reliance on the Supplemental Declarations of

David Bain and Edward Parsons was in error. January 3 Order at 15. Plaintiffs

declarants are entitled to no deference and may not be relied upon to challenge the

correctness or wisdom of the Navys mitigation. Asarco, Inc. v. EPA, 616 F.2d

1153, 1160 (9th Cir. 1980); Am. Bioscience v. Thompson, 243 F.3d 579, 582-83

(D.C. Cir. 2001). But, even considering the testimony of Plaintiffs declarants,

their vague and unsupported assertions do not controvert the Navys testimony.

Bain Decl. 7 states without support that: The 1000 yd power-down / 200 yd

shutdown is only intended to prevent injuries to hearing. It is not designed to

mitigate injuries to other mechanisms. To the contrary, the Navys safety zone is

intended to limit exposures that may cause behavioral harassment at 173 dB, a

conservative figure established with NMFS that this Court has upheld. August 7Order at 10; Bird Decl. 50; Declaration of Brandon Southall 20-23 (Docket

No. 30). The Courts condition also does not make an exception for dolphins and

porpoises that often seek out vessels to ride the bow wave regardless of whether

sonar is operating. See NDE II, Mit. Br. Ex. 1 at 8. Without this exception, an

entire exercise could be jeopardized because of one marine mammal who chooses

to follow the vessel despite the emission of active sonar (demonstrating that the

marine mammal is not being harmed). Accordingly, the Courts finding with

respect to the necessity of a 2200 yard shutdown zone is unsupported, contradicts

the Courts earlier finding, and illustrates that the affirmative relief in the order is

overly broad.



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Shutdown zone for helicopter dipping sonar and sonobuoys. The Courts

order would also require a 2200 yard shutdown zone around the Navys use of

helicopter dipping sonar and sonobuoys. See January 3 Order at 15, 17. This

condition was not raised by either party during briefing on mitigation, andtherefore has not been previously addressed by the Navy. However, much like the

2200 yard shutdown zone for hull mounted MFA sonar, it would substantially

interfere with the Navys ability to train and would jeopardize strike group

certification. Additional explanation of the impairment on training is discussed in

the Classified Roughead Declaration (submitted ex parte/in camera).

In addition, there is no factual basis for imposing such a restriction on

training. Both dipping sonar and sonobuoys transmit at much lower decibel levels

than hull mounted sonar, and thus emit only a small fraction of the power of hull

mounted sonar. Moreover, in the biological opinion, NMFS concluded that

[b]ecause [sonobuoys and dipping sonar] systems emit a relatively small number

ofvery short pulses (2-5 pulses of 3.5-700 milliseconds (msec), it is extremely

unlikely that its use would have any effecton marine mammals or sea turtles.

BiOp at 10 (emphasis added); see also Notice; Issuance of Incidental HarassmentAuthorization, 71 Fed. Reg. 38710, 38720 (NMFS explaining in detail that the use

of sonobuoys and dipping sonar have no potential to affect marine mammals).

No party presented any evidence warranting a departure from NMFSs expert

determinations in the biological opinion or even suggesting that the mitigation

condition imposed by the Courts order is necessary or appropriate. Indeed, this

Court has already deferred to the determinations of NMFS the expert wildlife

agency and found that the Navy is likely to prevail on its claim that NMFSs

biological opinion is lawful. Accordingly, the condition is unsupported by the

record and is not narrowly tailored.

Surface ducting conditions. The Courts order requires that the Navy power

down sonar use by 6 dB when surface ducting conditions are encountered. January



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4/ The Navy interprets the order as requiring that the Navy power down insignificant surface ducting conditions, as that was the issue before the Court. Boththe Navy and Plaintiffs only addressed significant surface ducting. See PlaintiffsOpening Brief Regarding Appropriate Mitigation Measures for the RemainingSOCAL Exercises at 22 (Docket No. 68); Def. Mitigation Br. at 26 (Docket No. 66);see also Bird Decl. 52 (discussing strong surface ducting conditions).

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3 Order at 17.4/ The Navy has demonstrated that it needs to train in significant

surface ducting conditions. See Bird Decl. 52; Bird Supp. 13. Training in such

conditions is critical because enemy submarines use the thermocline (the boundary

between layers of water with different temperatures) to hide and potentially attack,and the Navy must train in such conditions at ranges relevant to antisubmarine

warfare. Id. The Classified Roughead Declaration submitted ex parte/in camera in

support of this motion provides more specific information as to why training in

surface ducting conditions at less than normal power results in substantial

degradation of training.

Although the Court cited Bird Decl. 52 and acknowledged that surface

ducting makes submarines difficult to detect, the Court did not properly weigh

the Navys need to train in such conditions against the negligible benefit that may

be imparted to marine mammals if the Navy always powers down by 6 dB in such

conditions. January 3 Order at 17. The order states only that the Navy shall

power down sonar by 6 dB. Id. Moreover, the Court did not consider that

significant surface ducting only poses a threat to marine mammals when it occurs

in combination with other factors: a restricted channel with limited egress, steepbathymetry (underwater topographic features), the presence of beaked whales, and

multiple sources of sonar operating simultaneously. See EA, PI Opp. Ex. 1 at 181.

NDE II condition No. 26 addresses this risk by requiring that the Navy take special

precautions when surface ducting conditions exist, along with other factors that in

combination could pose a threat to beaked whales. Mit. Br. Ex. 1 at 8-9.

Therefore, we respectfully contend that the Courts failure to give greater

consideration to the need of young Sailors to train in the conditions and in the



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manner in which they will be required to protect the safety of the strike group and

the Sailors and Marines on board ship conflicts with the Ninth Circuits instruction

to develop narrowly tailored mitigation measures that allow the Navy to conduct its

MFA sonar training.Aerial Monitoring. The Court has ordered that [a]erial monitoring shall

continue for the duration of the exercises involving the use of MFA sonar.

January 3 Order at 15. This condition was not requested by any party and there is

no record evidence to support the imposition of such a condition. NDE II, which

the Navy follows, requires that: Navy aircraft participating in exercises at sea will

conduct and maintain, when operationally feasible and safe, surveillance for

marine species of concern as long as it does not violate safety constraintsor

interfere with the accomplishment of primary operational duties. Mit. Br. Ex. 1 at

7 (emphasis added). The Courts order does not explain why the Navys own

aircraft are insufficient to conduct monitoring or how an additional dedicated

aircraft would be more effective. The Courts requirement also fails to give due

consideration to the safety risks to Navy pilots and pilots of dedicated monitoring

aircraft if a monitoring aircraft is kept constantly aloft during an exercise that maytake weeks. In addition, severe training disruptions could occur due to mechanical

failure or other circumstances preventing a dedicate monitoring aircraft from being

launched. Therefore, the condition is overly broad.

Choke Points and the Catalina Basin. The Courts condition would entirely

exclude the Navy from training using MFA sonar in the Catalina basin. January 3

Order at 17-18. Testimony previously submitted by the Navy states: The area

described in this exclusion is a vital staging area where small boat attacks are

generated and can safely take place in numbers sufficient to simulate the enemy.

The multi-dimensional nature of coordinating enemy air, surface and subsurface

attacks is lost, training is degraded, warfare commanders and sailors are left with

an untested sense of security and training opportunities against anticipated real



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world threats are lost. Bird Supp. 5 (emphasis added). In imposing a blanket

exclusion of MFA sonar training in this area, the Court did not give proper

consideration to this testimony, nor did the Court give proper consideration to the

fact that the Navys current mitigation, developed in consultation with NMFS,already requires that special precautions be taken in chokepoint areas when other

factors are also present which together may pose a risk to marine mammals. NDE

II, Mit. Br. Ex. 1 at 8-9.

In addition, the Courts finding that the Catalina Basin constitutes an actual

chokepoint that would endanger marine mammals by limiting ingress and egress is

contrary to the evidence submitted by the parties. The Navy presented unrebutted

testimony that the waters off southern California have no actual constricted

channels so a measure particular to chokepoints or constricted channels is not

necessary in southern California waters. Bird Decl. 54. Indeed, as the Court

recognized in the order, when training in the Catalina Basin, the Navy uses

simulated chokepoints. January 3 Order at 17. A simulated chokepoint would

not have any impact on marine mammal egress and therefore would pose no danger

to marine mammals. The finding that a simulated chokepoint was the same as anactual chokepoint and presented the same risks was a factual error and led the

Court to craft an overly broad restriction on training.

As the Ninth Circuit has held, the issues in this case go to the very heart of

the welfare and security of this country. The public interest in a strong national

defense must be meaningfully weighed and considered alongside the publics

interest in protecting the environment. NRDC, 502 F.3d at 863-64. Given the

complexity of the military operations involved, the imposition of the conditions in

the January 3 Order does not permit the COMPTUEX and JTFEX to proceed in an

effective and meaningful manner, as required by the Ninth Circuit. Id.; see also

State of Wisconsin v. Weinberger, 745 F.2d 412, 428 ([T]he district court abused

its discretion by failing to consider the degree to which the NEPA interest would,



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in fact, be served by an injunction, the efficacy of other forms of relief, and the

harm to the national defense that would result.); Enforma, 362 F.3d at 1212

(factual findings must be sufficiently comprehensive and pertinent to the issues to

provide a basis for decision). Accordingly, the Court has failed to issue tailoredinjunctive relief so as to provide mitigation under which the Navy may conduct its

training exercises. NRDC, 2007 WL 3377229, at *1, and the Navy has raised

serious legal issues which justify a stay pending appeal.

2. The Navy Is Entitled to Deference in Matters of National

Security, Including Training and Military Readiness

As described above, in imposing conditions on the Navys MFA sonar

training, we will argue that the Court failed to give the required deference to the

Navys considered assessment of which conditions would permit the Navy to

properly train and certify strike groups for deployment. In doing so, the Court

acted contrary to the deference that must be afforded to the Executive Branch on

issues relating to the national defense. The Navy is statutorily responsible for the

preparation of naval forces necessary for the effective prosecution of war. 10

U.S.C. 5062. Therefore, the Navys assessment of what is necessary for effectivetraining, and what the impact of restrictive measures would be, is entitled to

substantial deference. Courts give considerable deference to the Executive

Branchs judgment regarding foreign policy and national defense. NRDC, 502

F.3d at 862; see also Holmes v. Cal. Army Natl Guard, 124 F.3d 1126, 1133 (9th

Cir. 1997) ([judicial] review is especially deferential in the military context.).

The readiness of carrier groups so essential to the protection of this nations vital

interests and the safety of [sailors] who risk their lives in the common defense are

matters of the gravest import. Natl Audubon Socy v. Dept of the Navy, 422

F.3d 174, 203 (4th Cir. 2005). District courts should not substitute their own

judgments for those of the Executive Branch in such national security matters as . .

. training, squadron readiness, and safety. Id.; see also Gilligan v. Morgan, 413



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U.S. 1, 10 (1973) ([I]t is difficult to conceive of an area of governmental activity

in which the courts have less competence.).

Even in circumstances that did not involve the national security interests at a

stake here, the Ninth Circuit has held that a district court should defer to agencyexpertise in fashioning a tailored preliminary injunction. See Idaho Watersheds

Project v. Hahn, 307 F.3d 815, 831 (9th Cir. 2002) (district court properly rejected

drastic proposals from the Environmental Groups and deferred to the

considerable agency expertise in fashioning interim protective measures). The

Courts frequent citation to Plaintiffs declarations and exhibits and failure to

appropriately consider or weigh the directly relevant evidence submitted by the

Navy is contrary to the deference that should have been afforded the Navy under

these circumstances. Accordingly, the Navy has raised substantial questions, if not

a likelihood of success, on the merits of an appeal of the Courts January 3 Order.

II. THE EQUITIES FAVOR GRANTING ASTAY

A. The Navys MFA Sonar Training Is Critical to National Security

The COMPTUEX and JTFEX, which are the subject of the Courts

injunction, are a critical component of the Navys training and fulfill the obligationof the Chief of Naval Operations under 10 U.S.C. 5062 to organize, train, and

equip all naval forces for combat. Environmental Assessment (EA), PI Opp. Ex.

1 at 26; Bird Decl. 35. Naval strike groups, which are built around either an

aircraft carrier or amphibious assault ship, must successfully complete JTFEX and

be certified before they can deploy and conduct their missions overseas. PI Opp.

Ex. 1 at 26, 33; Bird Decl. 35. The COMPTUEX and JTFEX are the only

opportunities for the thousands of Sailors and Marines in a strike group to train in a

coordinated manner and in a realistic environment prior to deployment to hostile

and dangerous parts of the world. Bird Decl. 16.

Training in the use of MFA sonar, which the Court has effectively enjoined

through overbroad mitigation measures, is a vital component of the pre-



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5/Due to the significant adverse national security impact of the Courts injunctiveorder, the Navy is also in the process of evaluating alternative legal options. Cf., e.g.,NRDC v. Pena, 20 F. Supp. 2d 45, 50 (D.D.C. 1998) (discussing NEPA emergency

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deployment training in the COMPTUEX and JTFEX. PI Opp. Ex. 1 at 43-44, 47-

48; May Decl. 6-7 (Docket No. 26); Classified Yoshihara Decl. The use of

MFA sonar is complex and requires constant training in realistic combat scenarios

to maintain. May Decl. 13-18, 21. MFA sonar is the Navys primary means ofdetecting potentially hostile diesel-electric submarines used by such nations as

China, North Korea, and Iran. See id. 11-12, 19-20; Bird Decl. 22. The

primary target of hostile submarines is the U.S. Navy aircraft carrier, which

typically carries over 5,300 servicemen and civilians. May Decl. 10. Thus, the

inability to train with MFA sonar literally puts the lives of thousands of American

men and women at extreme risk, as well as endangering national security. Id.

27-30; Bird Decl. 16; Classified Yoshihara Decl.; Classified Branch Decl.

As explained in the Classified Roughead Declaration submitted ex parte/in

camera, if the Navy were to follow the conditions in the Courts January 3 Order, it

would not have any reasonable assurance that it could conduct its training in a

manner that would permit certification of strike groups and thus allow the strike

groups to deploy. The inability to certify strike groups from the West Coast would

have immediate impacts on the Navys deployment cycles, affect thousands ofSailors and Marines and their families, and cause severe, irreparable harm to the

United States, its citizens, and other nations. See Classified Branch Decl. The

Ninth Circuit has already issued a stay in this case on the basis that a blanket

injunction of the Navys use of MFA sonar during the COMPTUEX and JTFEX

would irreparably harm the interests of the Navy and the public. NRDC, 502 F.3d

at 864-65. Since the Courts January 3 Order has the same practical effect as a

blanket injunction, the equities mandate the issuance of a limited stay while the

Navy pursues an appeal of the Courts January 3 Order.5/



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28provision under 40 C.F.R. 1506.11); 16 U.S.C. 1456(c)(1)(B) (authorizingPresidential exemption under CZMA).

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B. In a Time of War, the Public Interest Favors Granting a Stay

In this case, and in binding precedent, the Ninth Circuit has held that the

failure to consider the public interest when issuing injunctive relief constitutes an

abuse of discretion. NRDC, 502 F.3d at 862. Moreover, the Ninth Circuit foundthat this case touches on issues going to the heart of this Nations security and to

the welfare of the public interest: We are currently engaged in a war, in two

countries. There are no guarantees extending from 2007 to 2009 or at any other

time against other countries deciding to engage us, or our determining that it is

necessary to engage other countries. The safety of our whales must be weighed,

and so must the safety of our warriors. Id. at 863-64. In terms of balancing the

public interest, the potential environmental harms for purposes of considering a

stay pending appeal are the same now as they were when the Court issued the

August 7 Order, which the Ninth Circuit vacated as overbroad.

We respectfully submit that the Courts January 3 Order did not give due

consideration to the publics interest in a national defense. NRDC, 502 F.3d at

863. With respect to taking account of the demonstrated irreparable harm to the

Navy and the public interest, the Court stated:The Court is also satisfied that the balance of the hardships tips in

favor of granting an injunction, as the harm to the environment,

Plaintiffs, and public interest outweighs the harm that Defendants

would incur (or the public interest would suffer) if Defendants were

prevented from using MFA sonar, absent the use of effective

mitigation measures, during a subset of their regular activities in one

part of one state for a limited period.

January 3 Order at 12-13.



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18

However, the Court did not make any other reviewable findings regarding

the importance of the exercises to the Navy, the public, and national security. As

explained above, equitable principles and the Ninth Circuits decision require that

the training be permitted to go forward, and it must therefore go forward in amanner in which it will be effective. Any mitigation measures that may be

imposed by injunction may not prevent accomplishment of that purpose.

Moreover, the Secretary of Defense, pursuant to express statutory authorization,

has determined that this training exercise to be carried out under criteria concurred

in by the Secretary of Commerce, is necessary to the national defense and on that

basis has exempted it from the MMPA, the Act of Congress that affords

substantive protection to marine mammals. Because equitable relief must be

consistent with the applicable statutory framework, the Court may not override that

determination by imposing its own substantive conditions to prevent impacts on

marine mammals if those conditions would prevent the accomplishment of the

training mission.

But even if the Court could do so, it made no findings of the sort that would

be required for that purpose. The Courts order does not mention the ClassifiedBranch Declaration, which explains the extreme risk to national security should an

overbroad injunction issue. The order also does not reference the testimony of

Rear Admiral Bird, whose declaration states: If a strike group does not gain

proficiency in MFA sonar, and cannot be certified as combat ready, this carries

national security implications. Bird Decl. 16 (emphasis added).

In addition, the Courts description of the COMPTUEX and JTFEX as a

subset of their regular activities in one part of one state for a limited period also

indicates a misunderstanding of the importance of these exercises and the need to

conduct them in SOCAL. These are not just any exercises. These are theexercises

by which the Navy evaluates and certifies strike groups for combat readiness. Bird

Decl. 35. U.S. THIRD Fleet, which includes a substantial portion of the Navys



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carrier and expeditionary strike groups, conducts certification exercises in SOCAL.

See PI Opp. Ex. 1 at 26-27. It is critical that the Navy conduct these exercises in

SOCAL because all of the land, air, and at-sea bases necessary for conducting the

exercises are located in SOCAL, including an instrumented range which allowsNavy commanders to evaluate strike groups; the training areas in SOCAL are a

long term investment by the Navy and the Navy cannot immediately transplant all

of its bases and thousands of Sailors and Marines overnight; and the shallow

coastal areas in SOCAL provide a unique environment for the Navy to train in

conditions where hostile submarines are likely to hide and that the Navy will

encounter overseas. Bird Decl. 17-23, Supplemental Declaration of Rear

Admiral Bird (Bird Supp.) 2-4 & Fig. 2 (Docket No. 80). When the

importance of the exercises, the harm to the public interest, and the harm to the

Navy are considered and weighed, the equities mandate more narrowly tailored

injunctive relief. In light of the serious national security issues at stake and the

potential for grievous irreparable harm to the United States and to the American

public absent a stay, the Navy respectfully contends that a stay is warranted.

C. The Navys Compliance With the Relevant Substantive Statutes,the MMPA and ESA, Weighs in Favor of Granting a Stay

In balancing the equities of imposing injunctive relief, the Navys

compliance with the applicable requirements of the Marine Mammal Protection

Act (MMPA), established through the issuance of a National Defense Exemption

(NDE) for the MFA sonar training, NDE II, Mit. Br. Ex. 1, and the Navys

compliance with the Endangered Species Act (ESA), August 7 Order at 18,

should also have been given effect by the Court in crafting narrowly tailored

injunctive relief. In invoking the NDE, after consultation with the Secretary of

Commerce, the Secretary of Defense established 29 mitigation measures to protect

marine mammals during the course of the exemption a step that goes beyond the



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bare requirements of the MMPA. See id. The Navy has complied with those

requirements.

The NDE is critical to the Courts determination because it is based upon a

finding by the Secretary of Defense, pursuant to express statutory authority andafter consulting with the Secretary of Commerce, that the Navys training using

MFA sonar is necessary for the national defense. NDE II, Mit. Br. Ex. 1 at 4.

When Congress amended the MMPA to provide for the NDE, it delegated to the

Secretary of Defense the authority to determine when national security needs

warrant exemption from the usual requirements of the MMPA and its substantive

protection of marine mammals. 16 U.S.C. 1371(f)(1). Here, the Secretary of

Defense has invoked the NDE, found these exercises to be necessary for national

defense, and found that effective training can occur with the NDE mitigation

measures developed in consultation with NMFS. Mit. Br. Ex. 1 at 4.

Equitable relief must comport with the governing statutory framework. The

Secretarys national defense determination and the Act of Congress authorizing it

therefore must be understood to have struck the proper balance of the hardships

and the public interest insofar as the effect of the training exercise on marinemammals is concerned; at the very least, that determination must be given great

weight. The Secretary of Defenses invocation of the NDE thus confirms that the

balance of the hardships and the public interest lies squarely with permitting the

challenged exercises to proceed with the NDE II mitigation measures in place. The

Courts January 3 Order, which goes well beyond those measures determined by

the Secretary of Defense to be within the public interest, is therefore overbroad.

Moreover, the Navy contends that the Court did not appropriately consider the

invocation of NDE II or the Courts finding that the Navy is likely in compliance

with the ESA when issuing injunctive relief, contrary to the standards governing

this Courts review. United States v. Oakland Cannabis Buyers Co-op, 532 U.S.

483, 497 (2001) ([A] court sitting in equity cannot ignore the judgment of



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Congress, deliberately expressed in legislation. (quoting Virginian R. Co. v.

Railway Employees, 300 U.S. 515, 551 (1937)).

The public interest in this case clearly favors permitting the Navy to conduct

its training in a way that allows it to certify strike groups so that they can bedeployed to conduct combat and other missions overseas. Two cabinet level

officials acting under the express statutory authorization in the MMPA and finding

that Navys MFA sonar training have already determined that these exercises are

necessary for national defense, and the need to conduct such training has already

been balanced against environmental concerns, specifically with respect to marine

mammals. Mit. Br. Ex. 1 at 4; see also 16 U.S.C. 1371(f)(1). These issues

demonstrate that serious questions are raised as to the scope of this Courts order

and further demonstrates that a stay is amply warranted in this case.

D. The Harm to Plaintiffs of a Stay Would be Minimal

As the Navy argued to this Court and the Court has now agreed, in order to

constitute irreparable harm to marine mammals, the Navys MFA sonar use would

have to cause population-affecting levels of disruption. January 3 Order at 12;

see also Def. Mitigation Br. at 6-7; Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451F.3d 1005, 1010 (9th Cir. 2006) (NEPA regulations direct the agency to consider

the degree of adverse effect on a species, not the impact on individuals of that

species.); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240

(9th Cir. 2005) ([I]t does not follow that the presence of some negative effects [on

wildlife species or their habitat] necessarily rises to the level of demonstrating a

significant effect on the environment.). Yet, the order does not explain which

marine mammal species or populations are being put at risk by the Navys training,

let alone any harm that NRDC or its member might suffer as a result of the Navys

training. Nor does the order explain the contradiction between the earlier finding

that Plaintiffs have no likelihood of success on their Endangered Species Act

claim, August 7 Order at 18, and the finding that the Navys SOCAL exercises will



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cause irreparable harm to five species of endangered whales. January 3 Order at

12. The Court also previously found the Navys 173 dB threshold to be

sufficiently protective, August 7 Order at 10, yet now it would require a shutdown

zone that would limit exposure levels to far below that threshold. January 3 Orderat 15.

Despite Plaintiffs exaggerated predictions of mass strandings and injuries to

whales from the Navys exercises in SOCAL, there is no evidence before the Court

indicating that any marine mammal has ever been injured by the Navys use of

MFA sonar in SOCAL. In fact, the Ninth Circuit in reviewing this case stated only

that Plaintiffs have shown a possibility of irreparable harm warranting some

form of preliminary injunctive relief that is narrowly tailored. NRDC, 2007

WL 3377229, at *1. As explained above, the January 3 Order does not impose

narrowly tailored injunctive relief and severely compromises the Navys ability

to train with MFA sonar in SOCAL in a manner disproportionate to any record

evidence of possible risk to marine mammals.

What the evidence in the record does show is that the Navy has been using

MFA sonar with the same intensity (decibel level) and at comparable usage levelsin SOCAL since the 1960s. Bird Decl. 18. In fact, MFA sonar usage has

declined slightly since 1992 and likely was even higher prior to 1992 because the

Navy had more ships with MFA sonar capability homeported in San Diego during

that time frame. Id. It remains the case that, after over 40 years of conducting

similar exercises in SOCAL, not a single stranding has occurred that has been

linked to the Navys use of MFA sonar. See Defendants Opposition at 23-24

(Docket No. 25). The Navys reports to NMFS following the SOCAL exercises

last spring did not indicate any unusual marine mammal behavior and certainly no

injuries or stranding due to the use of MFA sonar. See PI Opp. Ex. 6. Plaintiffs

are constantly on the lookout for a stranding that they can attempt to attribute to the

Navy, and yet, to date, none has occurred. As the Navy has explained, the Navys



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use of MFA sonar during the COMPTUEX and JTFEX is expected to result, at

most, in the temporary, non-injurious harassment of marine mammals.

Defendants Opposition at 8-9 (Docket No. 25). Marine mammal populations in

SOCAL are not decreasing and the populations of many listed species, such ashumpback whales and blue whales, are stable or increasing. Id. at 24.

Accordingly, based on past experience and the failure of Plaintiffs to describe any

irreparable harm that has occurred from the Navy conducting its training as

normally scheduled for nearly a year, a stay will not result in any irreparable harm

to marine mammal species in SOCAL or to the Plaintiffs interests. Indeed, given

the Secretary of Defenses NDE determination, little may properly be attributed to

any such harm as a legal matter.

CONCLUSION

For the reasons stated above and in prior briefing of these issues to the

Court, the Navy requests an immediate stay of the Courts January 3, 2008 Order.

Because the next exercise is scheduled to go forward in January, and to build in

time for the appeal, the Navy requests a ruling from this Court as soon as

practicable and no later than January 14, 2008.Respectfully submitted this 9th day of January, 2008.

/s/Luther L. HajekLUTHER L. HAJEK, D.C. Bar No. 467742U.S. Department of Justice



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THOMAS P. OBRIENUnited States AttorneyLEON W. WEIDMANChief, Civil DivisionMONICA L. MILLERAssistant United States Attorney

RONALD J. TENPASAssistant Attorney GeneralEnvironment & Natural Resources Division

MICHAEL R. EITEL, Neb. Bar No. 22889Trial Attorney, Wildlife & Marine Resources SectionUnited States Department of Justice1961 Stout Street, 8th Floor, Room 812Denver, CO 80294Tele: (303) 844-1479 / Fax: (303) 844-1350E-mail: [email protected]

CHARLES R. SHOCKEY, D.C. Bar No. 914879GUILLERMO A. MONTERO, Ma. Bar No. 660903LUTHER L. HAJEK, D.C. Bar No. 467742Trial Attorneys, Natural Resources SectionUnited States Department of JusticeEnvironment and Natural Resources DivisionP.O. Box 663, Washington, DC 20044-0663Tele: (202) 305-0492/(916) 930-2203Fax: (202) 305-0274/(916) 930-2210E-mail: [email protected]

[email protected]@usdoj.gov

Attorneys for Defendants



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PROOF OF SERVICE

I, Luther L. Hajek, hereby certify that on Wednesday, January 9, 2008, I

electronically filed the foregoing MEMORANDUM OF POINTS AND

AUTHORITIES IN SUPPORT OF APPLICATION FOR STAY PENDINGAPPEAL with the Clerk of Court using the CM/ECF system, which will

automatically send email notification to attorneys of record. Moreover, I caused to

be served, via electronic and overnight mail, postage prepaid, copies of the

foregoing on the following counsel:

Joel R. ReynoldsAndrew E. WetzlerCara A. Horowitz

NATURAL RESOURCES DEFENSE COUNCIL, INC.1314 Second StreetSanta Monica, CA 90401Tele: (310) 434-2300 / Fax: (310) [email protected]

/s/ Luther L. HajekLuther L. Hajek


memo in favor of stay pending appeal

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