FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE 

COUNCIL, INC.; THE INTERNATIONAL

FUND FOR ANIMAL WELFARE;

CETACEAN SOCIETY INTERNATIONAL;

LEAGUE FOR COASTAL PROTECTION;

OCEAN FUTURES SOCIETY; JEANMICHEL COUSTEAU,

Plaintiffs-Appellees,

CALIFORNIA COASTAL COMMISSION, No. 08-55054

Intervenor-Appellee,

D.C. No.

v. CV-07-00335-FMC

DONALD C. WINTER, Secretary of Central District

the Navy; UNITED STATES  of California,

DEPARTMENT OF THE NAVY; CARLOS Santa Ana

M. GUTIERREZ, Secretary of the ORDER

Department of Commerce; GRANTING

NATIONAL MARINE FISHERIES PARTIAL STAY

SERVICES; WILLIAM HOGARTH,

Assistant Administrator for

Fisheries of the National

Oceanographic and Atmospheric

Administration; CONRAD C.

LAUTENBACHER, JR., Administrator

of the National Oceanographic and

Atmospheric Administration,

Defendants-Appellants. 

Filed February 29, 2008

Before: Betty B. Fletcher, Dorothy W. Nelson, and

Stephen Reinhardt, Circuit Judges.

2075
ORDER

As we explain in our opinion issued concurrently with this

order, we affirm the district court’s January 3, 2008 preliminary injunction order, as modified on January 10, 2008. The

preliminary injunction permits the Navy to complete the

remaining eight of fourteen scheduled COMPTUEX and

JTFEX exercises in the waters off the coast of southern California on the condition that it employ a number of measures

designed to mitigate the harm to marine mammals that the

district court found would, “to a near certainty,” result from

the Navy’s use of mid-frequency active sonar (MFA sonar).

See Jan. 3, 2008 Dist. Ct. Order at 12. 

The Navy has argued that the balance of hardships tips in

its favor because two of the mitigation measures imposed by

the district court would significantly limit its ability to conduct anti-submarine warfare training as part of the scheduled

exercises and would consequently jeopardize its ability to certify its strike groups as ready for deployment. The two mitigation measures require the Navy to (1) suspend its use of MFA

sonar if a marine mammal is detected within 2,200 yards of

the sonar source, and (2) reduce the acoustic energy level of

MFA sonar by 6 decibels whenever significant surface ducting conditions are detected. See Jan. 10, 2008 Dist. Ct. Order.

On this appeal, we do not determine the issues finally but

decide only whether the district court relied on an erroneous

legal premise or abused its discretion in issuing its preliminary injunction order on the basis of its finding that plaintiffs

had a strong likelihood of success on the merits and that the

balance of hardships favored them. Thus, the scope of our

review at this juncture is limited. In light of the short time

before the Navy is to commence its next exercise, the importance of the Navy’s mission to provide for the national

defense and the representation by the Chief of Naval Operations that the district court’s preliminary injunction in its current form will “unacceptably risk” effective training and strike

2076 NRDC v. WINTER
group certification and thereby interfere with his statutory

responsibility under 10 U.S.C. § 5062 to “organiz[e], train[ ],

and equip[ ] the Navy,” we sua sponte partially and temporarily stay the preliminary injunction as adopted by the district

court to the extent provided herein. 

We modify the abovementioned two mitigation measures

and stay them in their original form. All other provisions of

the preliminary injunction shall remain unchanged and in

effect. The two modified measures shall be in effect in lieu of

the original measures until the expiration of this stay order.

We act out of an abundance of caution to protect the important interests at stake in this appeal pending possible further

review and in the firm belief that the modified provisions

should satisfy the concerns stated by the Chief of Naval Operations in his affidavit, while protecting the marine mammals

to the extent possible given those concerns. 

The first mitigation measure is modified to require the

Navy to suspend its use of MFA sonar if a marine mammal

is detected within 2,200 yards of the sonar source, except

when MFA sonar is being used at a “critical point in the exercise,” in which case the Navy shall reduce the MFA sonar

level by 6 decibels when a marine mammal is detected within

1,000 meters from the sonar source, reduce the MFA sonar

level by 10 decibels when a marine mammal is detected

within 500 meters of the sonar source and suspend its use of

MFA sonar when a marine mammal is detected within 200

meters of the sonar source.1 A “critical point in the exercise”

1We note that the Navy had already agreed to employ the 1,000 meter,

500 meter and 200 meter safety zones before the district court issued its

preliminary injunction order. See Dec. 14, 2007 Bird decl. 58. 

Consistent with the Deputy Secretary of Defense’s January 23, 2007

National Defense Exemption from the Requirements of the Marine Mammal Protection Act, the preliminary injunction exempts the Navy from the

2,200 yard “shutdown” requirement where the detected marine mammal

is a dolphin or a porpoise and it appears that the dolphin or porpoise is

intentionally following the sonar-emitting naval vessel in order to play in

or ride the vessel’s bow wave. See Jan. 10, 2008 Dist. Ct. Order. This

exemption shall remain in effect. 

NRDC v. WINTER 2077
is a point when, in the discretion of the Admiral overseeing

the exercise or the commander of the sonar-emitting vessel,

continued use of MFA sonar is critical to the certification of

a strike group or the effective training of its personnel. For

example, the responsible officer, in his discretion, might

determine that a shutdown would fundamentally undermine

effective training or certification because the particular exercise underway is at a stage that would be seriously compromised by a shutdown. 

The second mitigation measure is modified to require the

Navy, when significant surface ducting conditions are

detected, to reduce the MFA sonar level by 6 decibels where

a marine mammal is detected within 2,000 meters of the sonar

source, reduce the MFA sonar level by 10 decibels where a

marine mammal is detected within 1,000 meters of the sonar

source, and suspend its use of MFA sonar where a marine

mammal is detected within 500 meters of the sonar source. 

The partial stay of the preliminary injunction is entered

without prejudice to either party’s seeking further relief from

the district court in the event of provable actual harm warranting such relief. 

This stay shall remain in effect for 30 days from the date

of this order, unless a petition for certiorari to the Supreme

Court of the United States is sought. If such petition is filed

on or before the thirtieth day, the partial stay of the preliminary injunction shall remain in effect until final disposition by

the Supreme Court. 

SO ORDERED.

2078 NRDC v. WINTER



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