Home » Case Summaries » 2016 » Natural Resources Defense Council, Inc. v. Pritzker, 828 F.3d 1125 (9th Cir. 2016)


Natural Resources Defense Council, Inc. v. Pritzker, 828 F.3d 1125 (9th Cir. 2016)



The Natural Resources Defense Council and other environmental groups (collectively, NRDC)[1] challenged a rule issued by the National Marine Fisheries Service (NMFS), and sought injunctive relief against the United States Navy, seeking to limit the Navy’s practice of employing low-frequency active (LFA) sonar during marine training exercises. NRDC alleged that the Marine Mammal Protection Act[2] (MMPA) required NMFS to develop mitigation measures, using a “least practicable adverse impact standard,” to protect marine mammals that rely on sonar before approving the Navy’s “military readiness activities” involving LFA sonar, because LFA sonar results in an “incidental take” of those marine mammals.[3] While NMFS developed mitigation measures, NRDC argued that the chosen measures failed to comply with the MMPA standard. The United States District Court for the Northern District of California granted summary judgment to NMFS on the question of MMPA compliance.[4] The Ninth Circuit, reviewing the grant of summary judgment de novo and employing an “arbitrary and capricious” standard to review NMFS’s action,[5] found that NMFS had not met the “least practicable adverse impact” standard, and reversed and remanded the district court’s grant of summary judgment.

The Ninth Circuit began by explaining that the MMPA was designed to combat the population decline in marine mammals caused by human activity. The MMPA prevents the unauthorized “take” of marine mammals, including “incidental” takes.[6] NMFS may authorize incidental takes, but may only do so after: 1) ensuring the activity at issue will have a “negligible impact” on affected marine species, and 2) developing mitigation measures to reduce harm to marine mammals to the “least practicable adverse impact.”[7]

Under the MMPA, the Navy’s use of LFA sonar in naval combat training exercises constitutes an incidental take of various species of marine mammal. Accordingly, NMFS first authorized the incidental take in 2012 (the 2012 Rule) for a five-year period.[8] The 2012 Rule limits where, when, and how often the Navy may use LFA sonar. In addition, the 2012 Rule contains three mitigation measures designed to minimize the adverse impacts of LFA sonar on marine mammals. According to NRDC, the 2012 Rule’s mitigation measures fell short of the “least practicable adverse impact” standard. Although the Ninth Circuit acknowledged that federal agencies have discretion to choose between available mitigation measures, the measures in the 2012 Rule were not available because they failed to adhere to the applicable standard.

The Ninth Circuit first held that NMFS was required to develop mitigation standards that satisfied the “least practicable adverse impact” standard. NMFS presented a variety of arguments for why the “least practicable adverse impact” standard was inapplicable. First, NMFS claimed that, because NMFS made a “negligible impact” finding before authorizing the incidental take of marine species via LFA sonar, NMFS was required by the MMPA to authorize the take regardless of the mitigation measures chosen. The Ninth Circuit disagreed. The court looked to the statutory text and concluded that the development of mitigation measures meeting the proscribed standard was an “independent, thresholds statutory requirement” and not a secondary issue to NMFS’s negligible impact finding.[9] Without sufficient mitigation measures, the court determined, NMFS may not authorize the take regardless of impact.

NMFS next argued that the mitigation requirement was superfluous because NMFS had already determined that the impact of LFA sonar would be negligible. Looking to NMFS’s own regulations, the Ninth Circuit rejected NMFS’s contention. The court found that “negligible impacts” were defined by NMFS with respect to population-level effects. By contrast, mitigation measures under the MMPA must do more than preserve population levels. Thus, a “negligible impact” finding did not obviate the need to develop mitigation measures.

After concluding that NMFS was required to develop mitigation measures under a “least practicable adverse impact” standard before authorizing incidental takes caused by LFA sonar, the Ninth Circuit scrutinized the mitigation measures in the 2012 Rule for compliance with that standard. The court began by acknowledging that the “least practicable adverse impact” standard requires a balance between impact reductions with the Navy’s need to conduct military-readiness training. But the court found nothing in the 2012 Rule addressing how the chosen mitigation measures met the applicable standard. Nor could the Ninth Circuit find any effort by NMFS to assess the impacts differing mitigation measures might have on Naval training exercises. In the court’s eyes, NMFS paid “mere lip service” to the applicable standard and, in doing so, acted contrary to the law.[10] The Ninth Circuit held that NMFS should have considered the need for additional mitigation measures beyond the three adopted in the 2012 Rule.

The Ninth Circuit went on to discuss NMFS’s chosen mitigation measures in detail, explaining why the evidence before the agency did not justify NMFS’s mitigation decisions in the 2012 Rule. The court again acknowledged that an agency’s technical assessment of matters within the agency’s area of expertise generally warranted great judicial deference. But the court declined to “rubber stamp” NMFS’s 2012 Rule when the Rule’s mitigation measures were clearly inconsistent with the MMPA’s mandate. Nor was the Ninth Circuit persuaded by NMFS’s pledge to use “adaptive management” to develop more effective mitigation measures over time. The court found nothing in the 2012 Rule binding NMFS to that promise, and held that the “mere possibility of changing the rules to accommodate new information” fell short of the MMPA’s mitigation requirements.[11]

In sum, the Ninth Circuit found that the 2012 Rule authorizing the incidental take of marine mammals caused by LFA sonar in Navy training exercises failed to comply with the MMPA’s strict mitigation requirements. The MMPA requires, as a prerequisite to authorizing incidental takes, development by NMFS of a mitigation plan under a “least practicable adverse impact” standard. The court found that the mitigation measures in the 2012 Rule failed to meet this standard. Accordingly, the court reversed the district court’s grant of summary judgment to NMFS and remanded for further proceedings.



Footnotes    (↵ returns to text)

  1. Other plaintiffs included the Humane Society of the United States, Cetacean Society International, and the Ocean Futures Society.
  2. Marine Mammals Protection Act of 1972, 16 U.S.C. §§ 1361–1421h (2012).
  3. Id. § 1371(a)(5)(A).
  4. Nat. Res. Def. Council, Inc. v. Pritzker, 62 F. Supp. 3d 969, 980 (N.D. Cal. 2014).
  5. APA, 5 U.S.C. § 706(2)(A) (2012).
  6. 16 U.S.C. § 1361(2), (13).
  7. Id. § 1371(a)(5)(A).
  8. Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to U.S. Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, Fed. Reg. 50,290, 50,290 (Aug. 20, 2012) (to be codified at 50 C.F.R. pt. 218).
  9. Nat. Res. Def. Council, Inc. v. Pritzker, 828 F.3d 1125, 1133 (9th Cir. 2016).
  10. Id. at 1135.
  11. Id. at 1142.
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