On February 29, 2008, federal Ninth Circuit Court of Appeals Judge Betty Fletcher (1923-2012), writing for a three-judge panel, refuses to overturn an injunction halting naval exercises off the coast of southern California that pose a risk of harm to marine mammals protected under federal and state law. The original injunction, issued by a U.S. District Court in California, was based on evidence that use of a particular type of sonar during naval exercises would be harmful to marine mammals that use echolocation to find food and for communication. In upholding the injunction, the appellate court rules that the district court's finding that there was a possibility of irreparable injury to the animals was supported by the evidence and that the court did not abuse its discretion in imposing restrictions on sonar use. The U.S. Supreme Court will later overturn the appeals court panel's decision by a narrow margin, allowing the naval exercises to continue.
Sonar vs. Cetacea
In January 2007, the United States Navy announced a series of naval exercises off the coast of Southern California that would start the following month and last until January 2009. Among the technologies the navy planned to use was high-intensity, mid-frequency active sonar (MFA sonar). In 1998, this type of sonar was linked to the phenomenon of whales and other members of the order Cetacea beaching themselves, most often in groups and almost always with fatal results. Studies confirmed the connection and found that the sonar signals caused actual physical damage to some species of marine mammals, including several species of whales and dolphins. It was believed that the sonar's effect on the animals' sensitive auditory systems, including ear-drum ruptures, caused disorientation and extreme distress and that this, in turn, led to the mysterious mass beachings. Even in cases in which beaching did not occur, the sonar was thought to affect the ability of these highly evolved mammals to communicate and to locate and capture prey.
The National Resources Defense Council (NRDC), a New York-based environmental nonprofit organization, had been opposing the use of MFA sonar in naval exercises since 2003 and had enlisted several other environmental groups to the cause. On March 22, 2007, an action was filed in the U.S. District Court for the Southern District of California seeking to bar or condition the use of the sonar during the exercises. The plaintiffs included the council, the International Fund for Animal Welfare, the Cetacean Society International, the League for Coastal Protection, the Ocean Futures Society, and Jean-Michel Cousteau (b. 1938), son of famed ocean explorer Jacques Cousteau (1910-1997) and an explorer and environmentalist in his own right. The defendants included the navy, the National Marine Fisheries Service, and other federal agencies.
The case, titled Natural Resources Defense Council, Inc. v. Winter (Donald C. Winter [b. 1948] was Secretary of the navy at the time the suit was filed), went on to have a relatively short but complicated history, ping-ponging between the federal district court and the court of appeals. Because the basic scientific facts were not in substantial dispute, the case presented a clear and instructive contest between the U.S. military's claimed national-security needs and the laws protecting the environment and the creatures within it. In this instance, the environment lost.
A Delicate Balancing Act
The district court issued a preliminary injunction on August 7, 2007, ordering the navy to halt the last 11 of the planned series of exercises. The navy responded by filing an emergency motion with the Ninth Circuit Court of Appeals. A divided panel of that court, based on written submissions by the parties, set aside the injunction, holding that the public interest in having a well-trained navy had not been adequately considered and questioning why the injunction was not limited to requiring mitigation measures, rather than barring the exercises entirely.
After oral argument, the court of appeals on November 13, 2007, reversed its reversal, holding that the plaintiffs had established that injunctive relief was warranted but ordering the district court to narrow the injunction by requiring mitigation measures rather than a cancellation of the exercises. District Court Judge Florence-Marie Cooper (1940-2010), who had issued the original injunction, visited the naval base in San Diego to learn more about the sonar in question and the feasibility of proposed mitigation measures. On January 3, 2008, she issued a new preliminary injunction, permitting the exercises to continue if the navy used prescribed measures to mitigate the effects of the sonar on marine mammals. On the subsequent motion of the navy, Judge Cooper relaxed the restrictions somewhat on January 10, 2008, but refused to lift or delay their implementation. Things then got interesting.
The President Intervenes
On the evening of January 15, 2008, the navy filed an emergency motion with the court of appeals asking that the injunction be vacated or at least stayed pending a full hearing. Cited in support of its motion was a formal finding by President George W. Bush (b. 1946), made that same day, that the untrammeled use of the sonar in the exercises was "essential to national security" and in the "paramount interest of the United States" and therefore exempt from review under the Coastal Zone Management Act (518 F.3rd at 662). To further complicate things, the federal government's Council on Environmental Quality, also on January 15, issued a ruling that found "emergency circumstances" and "purported" (the court of appeals' word) to allow the navy to go forward with its exercises before the environmental impact statement mandated by the National Environmental Protection Act (NEPA) had been completed (518 F.3rd at 662). In other words, the navy could use the sonar without significant restrictions and only later determine what the environmental consequences of that use were. This was not the way the requirements of the environmental protection act were usually implemented.
The court of appeals on January 16, 2008, sent the dispute back to Judge Cooper for a determination of whether the president's national-security finding and the actions of the Council on Environmental Quality required that the temporary injunction be stayed or lifted. Judge Cooper issued a partial stay on January 17, and the navy went ahead with the sixth of its planned 11 exercises. Then, on February 4, after a full hearing, Judge Cooper ruled that the preliminary injunction would stand. Two days later, the navy asked the court of appeals for review of that ruling. The appeal would be heard by a panel that included, besides Judge Fletcher, Judge Dorothy Wright Nelson (b. 1928) and Judge Stephen Reinhardt (b. 1931).
Judge Betty Fletcher
Judge Betty Fletcher was a trailblazer in the law, having graduated in 1956 at the top of her class at the University of Washington School of Law in an era when there were very few women attorneys. After facing hiring discrimination at a number of firms, she was finally taken on by the small but prestigious Preston, Thorgrimson, & Horowitz in Seattle (which in 2013, after multiple mergers and under the name K&L Gates, is an international mega-firm employing more than 2,000 lawyers in offices on five continents).
After getting her foot in the door, Fletcher soon proved her skills as an attorney and became an advocate for women in the professions and for women's rights in general. In 1972 she became the first woman to lead the Seattle Bar Association, and this made her the first woman member of the American Bar Association's Commission of Bar Presidents. She later was appointed the first woman member of the Washington State Bar Association's Board of Governors, and in 1978 she became the first woman admitted to full membership in Seattle's exclusive Rainier Club. She was instrumental in the passage of the state's version of the Equal Rights Amendment and in modifying community property laws to remove discriminatory provisions.
Betty Fletcher became Judge Fletcher on September 26, 1979, after President Jimmy Carter (b. 1924) nominated her to a new seat on the Ninth Circuit Court of Appeals and the U.S. Senate approved. She would be one of the last truly progressive judges to make it to the federal bench for many years to come, as first President Ronald Reagan (1911-2004) and then President George H. W. Bush (b. 1924) generally nominated staunch conservatives.
In 1995, President Bill Clinton (b. 1946) wanted to appoint Judge Fletcher's oldest son, William Fletcher (b. 1945), to a seat on the Ninth Circuit. Republicans blocked the nomination, relying on an old anti-nepotism statute that over the years had been regularly ignored. After a drawn-out blocking action waged by Senate Republicans, Betty Fletcher agreed to go on "senior" status to ensure her son's approval. However, unlike most judges on senior status, she continued to take on a full load of cases, and she was present in court, hearing oral arguments, just five days before her death in 2012.
The Opinion
Although both the Council on Environmental Quality's finding of an "emergency circumstance" and President Bush's attempt to exempt the navy from the requirements of the Coastal Zone Management Act sought to circumvent the injunction, the appellate court addressed only the first of these. President Bush's finding applied only to the Coastal Zone Management Act, and the district court based its injunction in large part on the requirements of other federal statutes.
In her opinion, Judge Fletcher first reviewed the dispute's complicated procedural history, then moved on to the facts, explaining what MFA sonar was and why the navy considered its use in training exercises critical to force readiness. She then addressed the other side of the coin:
"At least thirty-seven species of marine mammals are found there [in the waters off Southern California], with the most common being various species of dolphin and whale, as well as the California sea lion. Nine of those species are listed as threatened or endangered under the Endangered Species Act ('ESA') ... : the blue whale, fin whale, humpback whale, Northern Pacific right whale, sei whale, sperm whale, sea otter, Stellar sea lion, and Guadalupe fur seal. In addition, up to eight species of beaked whale are found in the Southern California Operating Area. A study submitted by NRDC classifies the California coastal waters as a 'key area' for beaked whales because over 25 percent of all beaked whale species are found there" (518 F.3rd at 665).
There followed a long discussion of the science supporting the view that the specific sonar used in the exercises was harmful to whales and dolphins and possibly other marine mammals, a fact that the navy only partially disputed. Citing a study by the National Oceanographic and Atmospheric Administration, Fletcher wrote:
"NOAA concluded in 2006 that studies of marine mammals in the wild 'strongly suggest' that the use of sonar at levels lower than those found to produce behavioral effects in the tests of captive animals can result in 'profound' behavioral alterations, including changes in feeding, diving, and social behavior" (518 F.3rd at 665).
Judge Fletcher's opinion ran to 45 pages, with 69 rather detailed footnotes. In the thorough manner she had become noted for, she reviewed much of the literature on sonar effects, including studies done by the navy as part of its "environmental assessment" of the naval exercises (a preliminary requirement of NEPA that is far less burdensome and comprehensive than a full Environmental Impact Statement).
After a detailed comparison of the navy's voluntary mitigation measures with those mandated by the district court, Judge Fletcher addressed the merits of the case, first taking on the question of whether the district court was correct in disregarding the Council on Environmental Quality's finding of an "emergency circumstance":
"In reaching these conclusions, the district court examined the various legal rules and applied those that were relevant to this proceeding. Having done so, it acted well within its discretion in determining that CEQ's broad interpretation of 'emergency circumstances' is contrary to the dictates of NEPA" (518 F.3rd at 686).
Round one for marine mammals. The remaining issue for the court was whether the plaintiffs had shown that they would probably succeed in a full hearing on their claim that the navy violated NEPA by failing to prepare a full Environmental Impact Statement, as opposed to the limited "environmental assessment." Such a finding of "probable success on the merits" is a prerequisite to the grant of a preliminary injunction.
Judge Fletcher once again conducted a detailed analysis of the facts and the science that supported the positions of the litigants. Once again, she concluded that the district court had ample justification for its findings:
"The district court did not abuse its discretion in concluding that NRDC raised substantial questions as to whether the ... exercises would have a significant impact on the environment. All of the reasons stated in the EA [environmental assessment] for why the Navy believed the ... exercises would not have the deleterious effect that the Navy's own model predicted were cursory, unsupported by cited evidence, or unconvincing. Thus, we find ample support for the district court's conclusion that the Navy has not 'articulate[d] a rational connection between the facts found and the conclusion reached'" (518 F.3rd at 693).
Justice Roberts Differs
Judges Fletcher, Nelson, and Reinhardt upheld the preliminary injunction issued by the district court, with modifications, and the navy appealed to the only higher judicial authority in the land, the U.S. Supreme Court. The case was argued there on October 8, 2008, and decided barely a month later, on November 12. Chief Justice John Roberts (b. 1955) wrote the opinion for a badly fractured court, setting aside the injunction and permitting the naval exercises to continue.
Justice Roberts's opinion again reviewed the dispute's convoluted history and, as is generally the case, accepted the lower courts' factual findings as true. But he found that the district court, in particular, had failed to properly balance the needs of the military with the requirements of the environmental laws. The opinion explained:
"Even if plaintiffs have demonstrated a likelihood of irreparable injury, such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. For the same reason, it is unnecessary to address the lower courts' holding that plaintiffs have established a likelihood of success on the merits" (555 U.S. at 3).
Roberts concluded:
"There is ... no basis for enjoining such training pending preparation of an EIS -- if one is determined to be required -- when doing so is credibly alleged to pose a serious threat to national security" (555 U.S. at 5).
Justice Roberts was joined in his opinion by other conservative members of the Court -- Justices Antonin Scalia (b. 1936), Clarence Thomas (b. 1948), and Samuel Alito (b. 1950) -- and by Justice Anthony Kennedy (b. 1936), often regarded as the Court's swing vote. Justice Stephen Breyer (b. 1938), joined by Justice John Paul Stevens (b. 1920), concurred in part and dissented in part, finding that conditions imposed by Judge Fletcher's opinion, which eased those of the district court, were justified and should apply:
"In my view, the modified conditions imposed by the Court of Appeals in its February stay order reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready ... . Therefore, I would modify the Court of Appeals' February 29, 2008, order so that the provisional conditions it contains remain in place until the Navy's completion of an acceptable EIS" (555 U.S. at 11).
Justice Ruth Bader Ginsburg (b. 1933), joined by Justice David Souter (b. 1939), dissented, concluding:
"In light of the likely, substantial harm to the environment, NRDC's almost inevitable success on the merits of its claim that NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion" (555 U.S. at 12).
Aftermath
Because the injunction had been partially stayed pending a hearing on the navy's appeal, the exercises continued under moderately restricted conditions and were substantially completed before the Supreme Court heard arguments. In practical terms, the matter was somewhat moot by then, but the importance of the issues still warranted a decision by the highest court in the land.
The navy subsequently accepted its responsibility to prepare a full Environmental Impact Statement for such exercises and pledged to do so by January 2009, before any additional tests outside of the original series were conducted. It made good on its pledge, and based on the statement's findings accepted an alternative plan that placed some restrictions on future exercises.
Whales and dolphins continue to beach themselves at locations around the world, most often in the absence of any known military sonar testing. The precise cause of many of these beachings remains undetermined.
