Plaintiffs reallege paragraphs 1-42.

Prior to completion of the draft EIS, the Director of the Office of Protected Resources within Defendant NMFS acknowledged that Defendant NMFS could not sign off on the draft because to do so would create a conflict with their regulatory function. Nevertheless, personnel from Defendant NMFS' Office of Protected Resources (OPR) participated in the preparation of the draft EIS. The names of two staff members of OPR appear in the Draft EIS List of Preparers representing Defendant Commerce.

Defendant NMFS accepted and is now processing the application by Defendant Navy for a Letter of Authorization to take protected species, including endangered species, during a five year deployment of SURTASS LFA referenced in paragraph 41 above.

At the time Defendant NMFS accepted the application referenced in paragraph 41, Defendant NMFS knew that Defendant Navy was in violation of NEPA and ESA prohibitions on making irreversible and irretrievable commitments of resources.

After accepting the application referenced in paragraph 41, Defendant NMFS assigned responsibility for the processing of the application to one of the two staff members of the Office of Protected Resources who helped Defendant Navy prepare the draft EIS.

While Defendant NMFS sought public comment on the application referenced in paragraph 41, Defendant NMFS made no attempt to extend the period for that comment despite apparently running out of copies for the public to review.

On January 14, 2000, Defendant Navy received formal notice that Defendant Navy was violating the Endangered Species Act and the National Environmental Policy Act. Based on information and belief, Defendant Danzig took no steps to bring Defendant Navy into compliance with the law.

On January 14, 2000, Defendant Commerce received formal notice that Defendant Navy was violating the Endangered Species Act and that Defendant NMFS was ignoring the violation. Based on information and belief, Defendant Deley took no steps to bring Defendant Navy into compliance with the law or to stop Defendant NMFS from processing the application referenced in paragraph 41 above.

Plaintiffs and/or their members who seek to maintain a balanced environment and/or who have scientific, educational, aesthetic, recreational, food gathering, and personal restoration and healing interests related to the oceans and/or ocean life will be harmed by a decision to deploy a system harmful to marine life and the marine environment.

Defendant Navy is attempting to foreclose the "no action" alternative, i.e. a decision not to deploy SURTASS LFA, by investing massive irretrievable resources in deployment. Those plaintiffs and/or their members who participated in or continue to participate in bringing information to the attention of Defendant Navy supporting a "no action" decision in the SURTASS LFA deployment EIS process are harmed by this attempt.

Those plaintiffs and/or their members who participated in or continue to participate in bringing information to the attention of Defendant Navy supporting a "no action decision" in the SURTASS LFA deployment EIS process are harmed by Defendant NMFS legitimizing the illegal acts of Defendant Navy to date through the acceptance and processing of the application for a Letter of Authorization for deployment.

Plaintiffs and/or their members who seek to maintain a balanced environment and/or who have scientific, educational, aesthetic, recreational, food gathering, and personal restoration and healing interests will be harmed by a deployment decision based on an environmental impact statement process, violating NEPA procedures, lacking objectivity and conducted in bad faith.

Plaintiffs and/or their members who seek to maintain a balanced environment and/or who have scientific, educational, aesthetic, recreational, food gathering, and personal restoration and healing interests will be harmed by an NMFS letter of authorization for SURTASS LFA deployment tainted by conflicting interests and based on an environmental impact statement process violating NEPA procedures, lacking objectivity and conducted in bad faith.

Based on the above and foregoing, plaintiff seeks the following relief:

A declaration that past expenditures by Defendant Navy for development of the SURTASS LFA system, including fabrication and testing, other than resources specifically committed to preparing the environmental impact statement, were illegal under the National Environmental Policy Act.

A declaration that past irreversible and irretrievable commitments of resources by Defendant Navy in furtherance of SURTASS LFA deployment were illegal under the National Environmental Policy Act and the Endangered Species Act.

A declaration that current and future irreversible and irretrievable commitments of resources by Defendant Navy in furtherance of SURTASS LFA deployment are and continue to be illegal under the National Environmental Policy Act, until such time as Defendant Navy at least completes the EIS for SURTASS LFA deployment.

A declaration that current and future irreversible and irretrievable commitments of resources by Defendant Navy in furtherance of SURTASS LFA deployment are and continue to be illegal under the Endangered Species Act, until such time as Defendant Navy at least completes the EIS for SURTASS LFA deployment.

A declaration that the Defendant Navy is not conducting the EIS process for SURTASS LFA deployment in good faith nor in compliance with the National Environmental Policy Act.

A declaration that Defendant Navy's application to the Defendant NMFS for a Letter of Authorization for SURTASS LFA deployment was made in bad faith because Defendant Navy was in violation of the National Environmental Policy Act and the Endangered Species Act at the time Defendant Navy submitted the application.

A declaration that Defendant NMFS' acceptance of an application from Defendant Navy for a Letter of Authorization for SURTASS LFA deployment was improper because Defendant Navy was in violation of National Environmental Policy Act and Endangered Species Act at the time of the application.

A declaration that the failure of Defendants Clinton and Cohen to order Defendant Navy to cease and desist from making irreversible and irretrievable commitments of resources in furtherance of SURTASS LFA deployment constitutes a violation of the National Environmental Policy Act and the Endangered Species Act.

A declaration that the failure of Defendants Clinton, Cohen, and Danzig to ensure the integrity of Defendant Navy's EIS process constitutes a violation of the National Environmental Policy Act, the Marine Mammal Protection Act, and the Endangered Species Act.

A declaration that the failure of Defendant Daley to prevent Defendant NMFS from processing Defendant Navy's application for a letter of authorization for SURTASS LFA deployment constitutes a violation of the National Environmental Policy Act, the Marine Mammal Protection Act, and the Endangered Species Act.

A preliminary and permanent injunction prohibiting the United States Navy from making any further irreversible and irretrievable commitments of resources to SURTASS LFA deployment until an environmental impact statement for such deployment is prepared in compliance with the National Environmental Policy Act and judicial review by this court of the adequacy of that environmental impact statement is complete.

A preliminary and permanent injunction prohibiting the United States Navy from deploying the SURTASS LFA system until such time as an environmental impact statement for such deployment is prepared in compliance with the National Environmental Policy Act and judicial review by this court of the adequacy of that environmental impact statement is complete.

An order from this court directing Defendant Navy to retain an independent contractor having no prior relationship with Defendant Navy regarding the SURTASS LFA system to determine whether legitimacy can be restored to the EIS process and, if so, what specific measures should be taken to achieve that end.

Plaintiff further seeks an order from this court directing Defendant NMFS to dismiss Defendant Navy's application for a permit to deploy the SURTASS LFA system as submitted in violation of law or, alternatively, to cease any further processing of the application until Defendant Navy is in compliance with the National Environmental Policy Act and the Endangered Species Act, the EIS is complete, and this court's review of the EIS is complete.

An award to plaintiff of reasonable attorney's fees and costs.

Such other relief as this Honorable Court finds appropriate to this case.

DATED: February 29, 2000, Hilo, Hawai`i

Respectfully submitted,

/s/

____________________________
Lanny Sinkin, TxSB# 18438675
58 Furneaux Lane, Suite 5
Hilo, Hawai'i 96720
(808) 961-9100

Attorney for Plaintiffs Return to beginning of Complaint

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