## Facts

- Environmental and animal-protection organizations challenged federal approvals for the U.S. Navy’s 2013–2018 Hawaii–Southern California Training and Testing program using sonar and explosives.
- The program area contained habitat for dozens of marine mammal species, including ESA-listed whales and other protected stocks.
- The Navy projected large-scale impacts, including deaths, permanent injuries, and millions of instances of temporary threshold shift and significant behavioral disruption.
- NMFS issued (1) MMPA incidental take regulations and a Letter of Authorization concluding the take would have a “negligible impact” on affected marine mammal species/stocks and (2) an ESA § 7 biological opinion finding no jeopardy and no adverse modification of critical habitat.
- The Navy prepared an EIS under NEPA for the program.
- The consolidated actions were decided on cross-motions for summary judgment under APA review standards.

## Issues

1. Whether NMFS’s MMPA “negligible impact” finding and mitigation measures for extensive incidental take were arbitrary, capricious, or contrary to law.
2. Whether NMFS’s ESA § 7 biological opinion (no jeopardy/no adverse modification) was arbitrary and capricious given the scale and duration of expected take.
3. Whether the Navy’s NEPA EIS took a hard look at environmental consequences and reasonably analyzed alternatives and mitigation, including time-area restrictions.
4. Whether the agencies reasonably addressed scientific uncertainty, contrary evidence, and public comments, and adequately explained their conclusions.

## Decision

- The court granted summary judgment for plaintiffs and denied defendants’ competing motions on the core MMPA, ESA, and NEPA challenges.
- The court held NMFS’s MMPA negligible-impact determination and associated mitigation/authorizations were arbitrary and capricious in light of the magnitude of anticipated harm and insufficient explanation.
- The court held NMFS’s ESA biological opinion was arbitrary and capricious for failing to rationally connect the expected effects to its no-jeopardy/no-adverse-modification conclusions and for inadequate treatment of baseline and cumulative effects.
- The court held the Navy’s EIS violated NEPA by failing to take a hard look at the consequences of predicted take and by inadequately evaluating reasonable alternatives and stronger mitigation (including habitat-based restrictions).
- The court set aside the challenged approvals and related agency actions to the extent they depended on the flawed analyses.

## Legal Principles

- Under the APA, agency action is unlawful if the agency fails to examine relevant data, ignores important aspects of the problem, treats uncertainty inconsistently, or does not provide a reasoned explanation connecting record facts to its conclusions.
- MMPA incidental take authorizations require a supported finding of “negligible impact” on affected species/stocks; mitigation must be sufficient in light of the expected scope, intensity, and duration of impacts.
- ESA § 7 requires a biological opinion that rationally evaluates effects on listed species and critical habitat, including consideration of the environmental baseline and cumulative effects, and explains why anticipated take will not cause jeopardy or adverse modification.
- NEPA requires a hard look at environmental impacts and meaningful consideration of reasonable alternatives and mitigation; an EIS must do more than list predicted take numbers without analyzing their biological significance.

## Conclusion

The court invalidated NMFS and Navy approvals for a major sonar-and-explosives training/testing program because the agencies’ MMPA and ESA determinations lacked reasoned support given the projected level of harm and because the Navy’s EIS did not adequately analyze impacts, alternatives, and mitigation as required by NEPA.


Conservation Council for Haw. v. Nat'l Marine Fisheries Serv., 97 F. Supp. 3d 1210 (D. Haw. 2015)