Nrdc v. Winter ( 2008 )

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; JEAN-
MICHEL COUSTEAU,
Plaintiffs-Appellees,
v. No. 08-55054
DONALD C. WINTER, Secretary of D.C. No.
the Navy; UNITED STATES CV-07-00335-FMC
DEPARTMENT OF THE NAVY; CARLOS  Central District
M. GUTIERREZ, Secretary of the of California,
Department of Commerce; Santa Ana
NATIONAL MARINE FISHERIES
ORDER
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 January 16, 2008
Before: Betty B. Fletcher, Dorothy W. Nelson and
Stephen Reinhardt, Circuit Judges.
1235
1236 NATURAL RESOURCES DEFENSE COUNCIL v. WINTER
ORDER
The Navy has filed an emergency motion in this court to
vacate the preliminary injunction issued by the district court,
or alternatively, to partially stay the injunction. To put the
matter in context, we briefly set forth its procedural posture.
On August 7, 2007, the district court entered a preliminary
injunction prohibiting the Navy from using mid-frequency
active sonar (MFA sonar) during the course of the remaining
eleven of fourteen large training exercises scheduled to be
conducted in the Navy’s training ranges off the coast of south-
ern California. On August 31, 2007, a motions panel of this
court granted the Navy’s motion to stay the preliminary
injunction pending appeal. On November 8, 2007, the merits
panel heard argument and considered the effect that narrowly
tailored mitigation measures might have on the parties’ inter-
ests. On November 13, 2007, it vacated the stay and
remanded to the district court to issue an order by January 4,
2008, “narrow[ing] its injunction so as to provide mitigation
conditions under which the Navy may conduct its training
exercises.” Natural Res. Def. Council v. Winter, 508 F.3d 885,
887 (9th Cir. 2007).1 The Navy stated that its next exercise
was scheduled to commence sometime in January. The deci-
sion to remand for modification of the preliminary injunction
was informed by “the district court’s longstanding involve-
ment with this matter and its familiarity with the effectiveness
and practicability of available mitigation measures.” Id.2
1
The Navy completed one training exercise after the motions panel
granted a stay, but before the merits panel considered the case. The
November 13 order kept the motion panel’s stay in effect until the comple-
tion of an exercise that the Navy was engaged in at the time of the appeal.
Natural Res. Def. Council v. Winter, 508 F.3d at 887. As a result, the
Navy has now completed five of its fourteen scheduled training exercises.
2
The district court’s involvement with this matter began in January
2006, when Plaintiffs first filed an application for a temporary restraining
order seeking to enjoin the Navy from using MFA sonar in that year’s
NATURAL RESOURCES DEFENSE COUNCIL v. WINTER 1237
The district court issued a revised preliminary injunction on
January 3, 2008. It allowed the Navy to use MFA sonar dur-
ing the remaining exercises, but imposed mitigating measures
similar to the type included in the Pacific Rim settlement,
although with different requirements. On January 9, 2008, the
Navy filed an application with the district court asking that it
stay its decision pending appeal and requesting relief by Janu-
ary 14, 2008. In response to arguments raised in the Navy’s
stay application, the district court narrowed the mitigation
measures contained in its January 3, 2008 order and issued a
modified preliminary injunction on January 10, 2008. The
Navy filed a notice of appeal the following day. On January
14, 2008, the district court denied the Navy’s stay application.
On the evening of January 15, 2008, the Navy filed its emer-
gency motion to vacate the preliminary injunction or, alterna-
tively, to partially stay the injunction pending decision on its
appeal to our court. It requested relief by 2:00 p.m. (PST) on
January 18, 2008.
The Navy’s motion was based in part on two significant
legal developments that took place on the same day that the
motion itself was filed, January 15, 2008. These legal devel-
opments, which are reflected in the exhibits that accompanied
the motion, may affect the district court’s preliminary injunc-
tion and stay order. First, the President of the United States,
pursuant to 16 U.S.C. § 1456(c)(1)(B), exempted from the
biennial training exercise in the Pacific Rim; a complaint was filed in June
of that year and a temporary restraining order was issued on July 3, 2006.
In that case, pursuant to the district court’s order, the parties conferred and
negotiated a settlement agreement governing the Pacific Rim exercise. The
district court subsequently dismissed the case with prejudice, but retained
jurisdiction to oversee compliance with the mitigation measures agreed
upon by the parties. In addition to the district court’s oversight of the
Pacific Rim litigation, that court also recently toured the USS Milius at the
naval base in San Diego, California, in order to better understand the
Navy’s training procedures and the feasibility of the parties’ proposed mit-
igation measures for its southern California exercises.
1238 NATURAL RESOURCES DEFENSE COUNCIL v. WINTER
provisions of the Coastal Zone Management Act the Navy’s
use of MFA sonar during the training activities in southern
California, finding that such use of MFA sonar is “essential
to national security” and in the “paramount interest of the
United States.” Second, the Council on Environmental Qual-
ity, finding “emergency circumstances,” provided for “alter-
native arrangements” to accommodate those emergency
circumstances, pursuant to 40 C.F.R. § 1506.11. It permitted
the Navy to follow the prescribed arrangements as a means of
complying with the National Environmental Policy Act pend-
ing completion of the Navy’s Environmental Impact State-
ment. The Navy has issued a decision adopting the alternative
arrangements and determining to proceed under them.
When the district court issued its preliminary injunction on
January 3, 2008, and the ensuing amendment on January 10,
2008, and when it denied the Navy’s stay application on Janu-
ary 14, 2008, these legal developments had not yet taken
place. As a result, the district court has not had an opportunity
to consider their effect on its preliminary injunction and, in
particular, to consider whether these legal developments merit
vacatur or a partial stay of the injunction. Accordingly, we
remand to allow the district court in the first instance to deter-
mine the effect of these developments on its January 3, 2008
preliminary injunction order, as modified on January 10,
2008, and on its January 14, 2008 stay order.
This panel shall retain jurisdiction over any further
motions, requests for relief, or appeals in this matter. We
direct the parties simultaneously to furnish copies to this court
of any papers or documents filed with the district court in this
matter.
REMANDED.
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