Case 8:07-cv-00335-FMC-FMO Document 131 Filed 01/17/2008 Page 1 of 8

1 THOMAS P. O’BRIEN
United States Attorney
2 LEON W. WEIDMAN
Chief, Civil Division
3 MONICA L. MILLER
Assistant United States Attorney
4
RONALD J. TENPAS
5 Assistant Attorney General
Environment & Natural Resources Division
6
MICHAEL R. EITEL, Neb. Bar No. 22889
7 Trial Attorney, Wildlife & Marine Resources Section
United States Department of Justice
8 1961 Stout Street, 8th Floor, Room 812
Denver, CO 80294
9 Tele: (303) 844-1479 / Fax: (303) 844-1350
E-mail: Michael.Eitel@usdoj.gov
10
CHARLES R. SHOCKEY, D.C. Bar No. 914879
11 GUILLERMO A. MONTERO, Ma. Bar No. 660903
LUTHER L. HAJEK, D.C. Bar No. 467742
12 Trial Attorneys, Natural Resources Section
United States Department of Justice
13 Environment and Natural Resources Division
P.O. Box 663, Washington, DC 20044-0663
14 Tele: (202) 305-0492/(916) 930-2203
Fax: (202) 305-0274/(916) 930-2210
15 E-mail: Luke.Hajek@usdoj.gov
16 Attorneys for Defendants
17 UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
18 WESTERN DIVISION
19 NATURAL RESOURCES ) Case No. 8:07-cv-00335-FMC (FMOx)
DEFENSE COUNCIL, INC., et al., )
20 ) DEFENDANTS’ EX PARTE
Plaintiffs, ) APPLICATION FOR EMERGENCY
21 ) TEMPORARY PARTIAL STAY
v. ) PENDING CONSIDERATION OF EX
22 ) PARTE APPLICATION TO VACATE
DONALD C. WINTER, Secretary ) PRELIMINARY INJUNCTION OR
23 of the Navy, et al., ) TO PARTIALLY STAY PENDING
) APPEAL, AND FOR IMMEDIATE
24 Defendants. ) VACATUR OR PARTIAL STAY
) PENDING APPEAL
25 )
) Hearing Date: TBD
26 ) Time: TBD
)
27 ) Hon. Florence-Marie Cooper
) U.S. District Judge
28
 Case 8:07-cv-00335-FMC-FMO Document 131 Filed 01/17/2008 Page 2 of 8

1 PLEASE TAKE NOTICE that, by submission to the Honorable Florence-Marie

2 Cooper of the United States District Court for the Central District of California,
3 Western Division, located at 255 East Temple Street, Los Angeles, California,
4 Defendants Donald C. Winter, et al. (“Navy”), by and through their undersigned
5 counsel, hereby apply ex parte for an emergency temporary partial stay of the
6 preliminary injunction pending the Court’s consideration of the Navy’s ex parte
7 application to vacate the preliminary injunction or to partially stay the injunction
8 pending appeal. At the same time, the Navy hereby applies ex parte for immediate
9 vacatur of the preliminary injunction or for partial stay pending appeal. Because the
10 exercises scheduled for January will begin next week, and to preserve the
11 government’s ability to pursue all available avenues of appellate relief, the Navy
12 respectfully seeks a ruling from this Court by January 17, 2008, at 4 pm Pacific
13 Standard Time, to allow the MFA sonar training in the January exercise to proceed as
14 planned.
15 Notice of Application to Counsel. On January 16, 2008, in accordance with
16 L.R. 7-19, Defendants gave notice to Plaintiffs’ counsel by electronic mail of
17 Defendants’ intention to file this Application on January 16, 2008, between
18 approximately 7:00 p.m. and 12:00 a.m. Plaintiffs have indicated that they oppose
19 this Application.1/
20 This Application is made pursuant to Fed. R. Civ. P. 62(c) and 62(e) and Fed.
21 R. App. P. 8(a)(1)(A), (C), and Local Rule 7-19, and is based upon the Navy’s
22 Appellate Brief, filed with the Ninth Circuit on January 15, 2008 (which is
23 incorporated by reference and attached as Exhibit (“Ex.”) 21 to the accompanying
24 Declaration of Michael R. Eitel (“Eitel Declaration”)), the Eitel Declaration and
25
1/
Although the California Coastal Commission’s (“CCC”) status in this case is
26 unclear, see Defendants’ Response to the CCC’s Brief on Proposed Mitigation
Measures for Preliminary Injunction at 1 n. 1 (docket no. 78) (filed Dec. 21, 2007),
27 Defendants provided the CCC with notice of Defendants’ intent to file the instant
Application, and the CCC responded but did not indicate whether or not it would
28 oppose this Application.

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1 exhibits thereto; the pleadings and other documents on file in this action; and such
2 other matters that the Court may consider or of which the Court may take judicial
3 notice.
4 For the reasons set forth below and in the attached motion filed in the U.S.
5 Court of Appeals for the Ninth Circuit, see Ex. 21, an emergency temporary partial
6 stay of the preliminary injunction is amply warranted. Indeed, legal developments,
7 occurring after this Court’s January 14, 2008, order denying the motion to stay,
8 eliminate the bases for the preliminary injunction and Plaintiffs’ legal challenge.
9 Specifically, on January 15, 2008, President George W. Bush, in accordance
10 with the express terms of 16 U.S.C. 1456(c)(1)(B), exempted the Navy’s mid-
11 frequency active (“MFA”) sonar use during training activities in the Southern
12 California Operating Area (“SOCAL”) from the provisions of the Coastal Zone
13 Management Act (“CZMA”), finding that the MFA sonar use that the district court
14 has enjoined is “essential to national security” and in the “paramount interest of the
15 United States.” Ex. 18 at 320. The timing of the issuance of this exemption flows
16 from the fact that the CZMA confers that authority only in response to a court order
17 that is appealable under 28 U.S.C. section 1291 or 1292. See 16 U.S.C. §
18 1465(c)(1)(B) (exemption requires “any final judgment, decree, or order of any
19 Federal court that is appealable”). This Court entered such an order in its preliminary
20 injunction on January 3, and again in its modified injunction on January 10, 2008. The
21 President issued the exemption on January 15, 2008, while overseas.
22 Contemporaneous with the President’s decision, on January 15, 2008, the
23 Council on Environmental Quality (“CEQ”) provided for alternative arrangements in
24 emergency circumstances, pursuant to the longstanding authority in 40 C.F.R.
25 § 1506.11, requiring the Navy to follow those arrangements to comply with the
26 National Environmental Policy Act (“NEPA”) pending completion of an
27 Environmental Impact Statement (“EIS”) for SOCAL training in January 2009. Ex.
28 15. The Navy has issued (and will publish in the Federal Register) a decision

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1 adopting the alternative arrangements and determining to proceed under them. Ex. 17.
2 In making its determination, CEQ reviewed the Navy’s imperative to train effectively
3 and certify strike groups for activities essential to the national security in light of this
4 Courts January 3 and 10 orders. On that basis, CEQ concluded that “emergency
5 circumstances” are present for the remaining nine exercises in the current series that
6 trigger the availability of alternative arrangements for complying with NEPA under
7 40 C.F.R. § 1506.11, and that such arrangements for compliance with NEPA are
8 warranted. Ex. 16 at 144-45. In that context, CEQ reviewed the Navy’s extensive and
9 ongoing undertakings to comply with NEPA and other mitigation and assessment
10 measures integrated with the NEPA process, including: (1) the Navy’s initiation of a
11 comprehensive EIS process for the SOCAL Training Area in December 2006, to be
12 completed by January 2009; (2) the Navy’s plans for publication of a draft EIS early
13 in 2008; (3) its issuance of an environmental assessment in February 2007 to comply
14 with NEPA for the current series of training exercises; (4) mitigation measures
15 adopted by the Navy, in consultation with NMFS, in connection with the National
16 Defense Exemption (“NDE”) from the Marine Mammal Protection Act issued by the
17 Deputy Secretary of Defense in January 2007; (5) the Biological Opinion issued by
18 NMFS in February 2007; (6) the after-action report analyses prepared by the Navy for
19 NMFS concerning each exercise in the current series; and (7) NMFS’ most recent
20 review of the environmental effects of MFA sonar training in the SOCAL Training
21 Area. Ex. 16 at 143-44 & 288-92 (Attachment H). In addition, CEQ specified the
22 additional measures provided by Navy in its request to CEQ: Navy’s commitment to
23 comply with the NDE mitigation measures, enhanced public participation measures
24 for preparation of the SOCAL EIS, measures for adaptive management, and long-term
25 research commitments. Ex. 16 at 145-49. CEQ’s determination that Navy’s request
26 satisfies the requirements of CEQ’s longstanding regulation providing for alternative
27 arrangements to comply with NEPA is entitled to great weight. See Auer v. Robbins,
28 519 U.S. 452,461-462 (1997).

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1 These actions by the President, CEQ, and the Navy obviate the bases for the
2 Court’s “likelihood of success on the merits” conclusions. Although these actions
3 came after the Court issued its order denying the Navy’s motion for stay pending
4 appeal, neither the Court nor Plaintiffs should have been surprised by the actions of
5 the Navy, the President, and CEQ. The Navy referred in its papers submitted with its
6 stay application a week ago to those very options. See Defendants’ Memorandum in
7 Support of Ex Parte Application for Stay Pending Appeal at 17 n.5. (Docket No. 97),
8 filed on January 9, 2008.
9 On January 16, 2008, the Ninth Circuit “remand[ed] to the district court in the
10 first instance to determine the effect of these developments on its January 3, 2008
11 preliminary injunction order, as modified on January 10, 2008, and on its January 14,
12 2008 stay order.” Ninth Circuit slip op. at 5. This court’s January 3, 2008, injunction
13 (as modified on January 10, 2008) dramatically departed from the status quo – not
14 only from the Navy’s past 40 years of conducting training in the SOCAL area but also
15 from the requirements that have governed five completed training exercises – by
16 significantly restricting the manner in which the Navy may conduct its training. The
17 conditions imposed, the 2,200 yard mandatory shutdown zone and the six decibel
18 power-down in significant surface ducting conditions, severely degrade the Navy’s
19 training and they create unacceptable uncertainty for the Navy’s ability to certify its
20 strike groups for deployment. Even without any other developments, an injunction
21 – especially a preliminary injunction – so altering the status with those consequences
22 for military readiness should not be permitted to go into effect until the Navy has had
23 a fair opportunity to obtain review of that decision.
24 But beyond that, since that injunction was issued the legal landscape has
25 substantially changed. This is a fact that NRDC does not dispute. And this change
26 of circumstances alone warrants a temporary stay. Indeed, the Ninth Circuit has now
27 twice permitted exercises to go forward while this court duly considered the important
28 issues before it. A similar stay of this court’s injunction is especially warranted now.

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1 But even more importantly, the President of the United States has determined,
2 pursuant to express statutory authority and in his capacity as Commander in Chief,
3 that the Navy’s on-going training exercises off southern California are “essential to
4 national security” and in the “paramount interest of the United States.” Due respect
5 and deference for the President under the Constitution and for his responsibility for
6 military readiness in a nation at war warrants a temporary injunction in this case. The
7 Court therefore should, at the very least, grant an emergency partial stay of the
8 injunction to allow the January exercise to go forward. If the Court limits the grant of
9 an emergency partial stay, the Navy reserves the right to seek to extend the temporary
10 stay to cover additional exercises if the Court has not ruled on the motion to vacate by
11 the time that the additional exercises are scheduled to occur.
12 Plaintiffs’ counsel asserts that: “The Navy’s actions raise complex and serious
13 statutory and constitutional issues.” June 16, 2008 E-mail, Ex. 19. To the contrary,
14 as explained above and in the motion filed in the Ninth Circuit, the actions of the
15 President, CEQ, and the Navy are clearly authorized by law and eliminate the basis
16 for the Plaintiffs’ legal challenges. But even if the Plaintiffs’ description were correct,
17 that would only underscore the need for the Court, at the very least, to issue an
18 emergency temporary partial stay to permit the Court to consider these matters. That
19 course is consistent with the course taken by the Ninth Circuit in August and in
20 November, which allowed a training exercise already scheduled to go forward while
21 further judicial proceedings were held. NRDC v. Winter, 502 F.3d 859, 865 (9th Cir.
22 2007) (granting stay pending appeal to permit exercises to proceed); NRDC v. Winter,
23 508 F.3d 885, 887 (9th Cir. 2007) (permitting exercise to proceed pending the district
24 court’s narrowing of its injunction).
25 In sum, the Navy respectfully moves for an emergency temporary partial stay
26 of preliminary injunction to allow the Navy’s exercise scheduled for January 2008 to
27 proceed without the 2,200 yard mandatory shutdown zone and the six decibel power-
28 down in significant surface ducting conditions restrictions in place. Alternatively, the

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1 Navy requests that the Court immediately vacate the injunction or issue an order
2 staying the preliminary injunction pending appeal.
3 Respectfully submitted this 16th day of January, 2008.
4
5 /s/ Luther L. Hajek
LUTHER L. HAJEK, D.C. Bar No. 467742
6 U.S. Department of Justice
7
8 THOMAS P. O’BRIEN
United States Attorney
9 LEON W. WEIDMAN
Chief, Civil Division
10 MONICA L. MILLER
Assistant United States Attorney
11
RONALD J. TENPAS
12 Assistant Attorney General
Environment & Natural Resources Division
13
MICHAEL R. EITEL, Neb. Bar No. 22889
14 Trial Attorney, Wildlife & Marine Resources Section
United States Department of Justice
15 1961 Stout Street, 8th Floor, Room 812
Denver, CO 80294
16 Tele: (303) 844-1479 / Fax: (303) 844-1350
E-mail: Michael.Eitel@usdoj.gov
17
CHARLES R. SHOCKEY, D.C. Bar No. 914879
18 GUILLERMO A. MONTERO, Ma. Bar No. 660903
LUTHER L. HAJEK, D.C. Bar No. 467742
19 Trial Attorneys, Natural Resources Section
United States Department of Justice
20 Environment and Natural Resources Division
P.O. Box 663, Washington, DC 20044-0663
21 Tele: (202) 305-0492/(916) 930-2203
Fax: (202) 305-0274/(916) 930-2210
22 E-mail: Charles.Shockey@usdoj.gov
Guillermo.Montero@usdoj.gov
23 Luke.Hajek@usdoj.gov
24 Attorneys for Defendants
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1 CERTIFICATE OF SERVICE
2 I, Luther L. Hajek, hereby certify that on Wednesday, January 16, 2008, I
3 electronically filed the foregoing DEFENDANTS’ EX PARTE APPLICATION
4 FOR EMERGENCY TEMPORARY PARTIAL STAY PENDING
5 CONSIDERATION OF EX PARTE APPLICATION TO VACATE
6 PRELIMINARY INJUNCTION OR TO PARTIALLY STAY PENDING
7 APPEAL, AND FOR IMMEDIATE VACATUR OR PARTIAL STAY PENDING
8 APPEAL with the Clerk of Court using the CM/ECF system, which will
9 automatically send email notification to attorneys of record. Moreover, I caused to
10 be served, via electronic and overnight mail, postage prepaid, copies of the
11 foregoing on the following counsel:
12 Joel R. Reynolds
Andrew E. Wetzler
13 Cara A. Horowitz
14
NATURAL RESOURCES DEFENSE COUNCIL, INC.
1314 Second Street
15 Santa Monica, CA 90401
Tele: (310) 434-2300 / Fax: (310) 434-2399
16 awetzler@nrdc.org
17
/s/ Luther L. Hajek
18 Luther L. Hajek
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