Page:Cetacean Community v. Bush.pdf/4

 Policy Act (“NEPA”), 16 U.S.C. §§ 4321–4347.

The Navy has developed SURTASS LFAS to assist in detecting quiet submarines at long range. This sonar has both active and passive components. The active component consists of low frequency underwater transmitters. These transmitters emit loud sonar pulses, or “pings,” that can travel hundreds of miles through the water. The passive listening component consists of hydrophones that detect pings returning as echoes. See 67 Fed.Reg. 46,712–16 (explaining SURTASS LFAS in more detail); 67 Fed.Reg. 48,145–48 (same). Through their attorney, the Cetaceans contend that SURTASS LFAS harms them by causing tissue damage and other serious injuries, and by disrupting biologically important behaviors including feeding and mating.

The negative effects of underwater noise on marine life are well recognized. An analysis accompanying the current regulations for the Navy’s use of SURTASS LFAS summarizes the harmful effects as follows: "[A]ny human-made noise that is strong enough to be heard has the potential to reduce (mask) the ability of marine mammals to hear natural sounds at similar frequencies, including calls from conspecifics, echolocation sounds of ondontocetes, and environmental sounds such as surf noise…. [V]ery strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration, and other functions. This trauma may include minor to severe hemorrhage."

67 Fed.Reg. 46,778; see also Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 737 n. 4 (9th Cir.2001) (noting that the “acoustic environment appears to be very important to humpback whales”). The current regulations, governing routine peacetime training and testing, have been challenged in a separate action. Natural Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1191 (N.D.Cal.2003) (“NRDC”) (issuing permanent injunction restricting the Navy’s routine peacetime use of LFA sonar “in areas that are particularly rich in marine life”).

The Cetaceans do not challenge the current regulations. Instead, they seek to compel President Bush and Secretary of Defense Rumsfeld to undertake regulatory review of use of SURTASS LFAS during threat and wartime conditions. The Navy has specifically excepted such use of SURTASS LFAS from the current regulations. See Fed.Reg.67 Fed.Reg. [sic] 46,717; 67 Fed.Reg. 48,146. The Cetaceans seek an injunction ordering the President and the Secretary of Defense to consult with the National Marine Fisheries Service under the ESA, 16 U.S.C. § 1536(a), to apply for a letter of authorization under the MMPA, 16 U.S.C. § 1371(a)(2), and to prepare an environmental impact statement under NEPA, 42 U.S.C. § 4332(2)(C). They also seek an injunction banning use of SURTASS LFAS until the President and the Secretary of Defense comply with what the Cetaceans contend these statutes command.

Defendants moved to dismiss the Cetaceans’ suit under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. Without specifying which of these rules was the basis for its decision, the district court granted the motion to dismiss. The court held, inter alia, that the Cetaceans lacked standing under the ESA, the MMPA, NEPA and the Administrative Procedure Act (“APA”). Cetacean