Note: For additional information about the plaintiffs and for contact information, visit the Plaintiffs page
Lanny Sinkin, TxSB# 18438675
Attorney at Law
58 Furneaux Lane Suite 5
Hilo, Hawai'i 96720
(808) 961-9100
Attorney for Plaintiffs
Plaintiffs:
Hawai'i County Green Party
Julie Jacobson, Member, Hawaii County Council
Ocean Mammal Institute
Animal Welfare Institute
Sea Shepherd Conservation Society
Stop LFAS Worldwide Network
Silent Oceans Trust, Inc.
Kohanaiki `Ohana
Universal Cetacean Institute
Orca Quest
Whale Rescue Team
Defendants:
William Jefferson Clinton, President, as Commander in Chief of the Armed Forces
William Cohen, Secretary of Defense
Richard Danzig, Secretary of the Navy
William M. Daley, Secretary of Commerce
Penelope Dalton, Assistant Administrator for Fisheries, National Marine Fisheries Service
Donald R. Nowles, Director, Office of Protected Resources, National Marine Fisheries Service
Donna Weiting, Chief, Marine Mammal Conservation Division, National Marine Fisheries Service
Laws:
National Environmental Protection Act,
Endangered Species Act,
Marine Mammal Protection Act.
No. CV _______________
Now come plaintiffs before this Honorable Court pursuant to FRCP 65 to seek declaratory relief, a preliminary injunction, and a permanent injunction.
Plaintiffs seek to compel Defendant Danzig (hereinafter "Defendant Navy") to comply with a clear duty under the National Environmental Policy Act to avoid making irreversible and irretrievable commitments of resources to the deployment of the Surface Towed Array Surveillance System Low Frequency Active (SURTASS LFA) sonar system prior to completing the environmental impact statement (EIS) for deployment of this system.
To achieve this purpose, plaintiffs seek an injunction prohibiting Defendant Navy from continuing to expend irretrievable resources and make irreversible commitments in furtherance of SURTASS LFA deployment until such time as the EIS and this court's review of the adequacy of the EIS are complete.
Plaintiffs seeks continuing jurisdiction of this court over Defendant Navy's environmental impact statement process for the SURTASS LFA deployment in order to ensure the integrity of the NEPA process.
Based on a lack of integrity in Defendant Navy's environmental impact statement process to date, Plaintiffs further seeks an order from this court directing Defendant Navy to retain an independent contractor having no prior relationship with Defendant Navy regarding this 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.
Plaintiffs further seek an order from this court directing Defendant Daley (hereinafter "Defendant Commerce") to order Defendants Dalton, Nowles, and Weiting of the National Marine Fisheries Service (hereinafter "Defendant NMFS") to dismiss Defendant Navy's application for a permit to deploy the SURTASS LFA system or, alternatively, to cease any further processing of the application until such time as Defendant Navy is in compliance with NEPA and the Endangered Species Act (ESA), the EIS for SURTASS LFA deployment is complete, and this court finds the completed EIS adequate.
In support of the foregoing, plaintiffs allege the following:
This court has jurisdiction under 28 U.S.C. 1331 (Federal Question) and the Administrative Procedures Act, 5 U.S.C. Section 702, 706.
This court has authority to issue declaratory relief pursuant to 28 U.S.C. Sections 2201-2202.
This action arises under the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321 et seq.; the Endangered Species Act of 1973 (ESA), 16 U.S.C. Section 1531 et seq.; and the Marine Mammal Protection Act (MMPA), 16 U.S.C. Section 1361 et seq.
Venue is appropriate in this court under 28 U.S.C. 1391(e) because this suit is an action against officers and employees of the United States government acting in their official capacity and lead plaintiff Hawai'i County Green Party has members living in the District of Hawai'i.
Hawai'i County Green Party (HCGP) is a political organization devoted to public education regarding protection of the environment and to electing candidates for political office who embrace that commitment. Almost all the members of the organization live on and/or own property in the County of Hawai'i on the Island of Hawai'i in the State of Hawai'i. Party members use the waters surrounding the island for scientific study; educational purposes; aesthetic enjoyment, including whale watching; recreation, including snorkeling and diving; sport, food gathering, and personal restoration and healing. The Party has participated in the environmental impact statement process for SURTASS LFA deployment by bringing to the attention of Defendant Navy adverse impacts of the SURTASS LFA system on the marine environment and on humans within the marine environment.
Julie Jacobson is an elected member of the Hawaii County Council. She previously served as Co-Chair of the Hawai`i County Green Party at the time the HCGP became a plaintiff in the March 1998 litigation seeking to stop the testing of the SURTASS LFA system in the waters off the Island of Hawai`i.
As an elected official of the County of Hawai`i, Ms. Jacobson has a commitment and an obligation to protect the citizens of the island. She is familiar with the adverse impacts on at least one human in the water during a broadcast of the SURTASS LFA system off the coast of Hawai`i in March 1998 and has a commitment to preventing further such instances of harm.
In her official capacity, Ms. Jacobson has a commitment and an obligation to protect and preserve the quality of the island's environment, including the ocean environment which surrounds the island. Ms. Jacobson is familiar with the adverse impacts on marine life apparently associated with the testing of the SURTASS LFA system off the Island of Hawai`i in March 1998 and has continuing concerns that such adverse impacts be prevented in the future.
In her official capacity, Ms. Jacobson is committed to protecting the economy of the island from adverse impacts caused by environmental harm. The whale watching industry is a major contributor to the economy of the island. Permitting the deployment of SURTASS LFA poses a threat to the continued viability of that industry.
The Ocean Mammal Institute (OMI) is a nonprofit organization that does ecologically sensitive research on marine mammals and their interactions with humans. OMI research results are directly applied to protecting whales and dolphins. OMI data helped convince the Hawaii State Legislature to ban the operation of parasail boats during whale season. Currently, OMI is studying the effects of boats and engine noise on whales and dolphins.
OMI personnel monitored whale populations during the SURTASS LFA testing off the island of Hawaii in March 1998 and documented what appeared to be adverse effects of the LFAS broadcasts on marine life. OMI filed suit against Defendant Navy and other defendants challenging the testing off Hawaii. OMI submitted comments on the draft Environmental Impact Statement for SURTASS LFA deployment. OMI is also an educational organization offering college credits through research internships.
The Animal Welfare Institute is a nonprofit charitable organization organized and existing under the laws of Delaware, with its principal place of business in Washington, DC. The Animal Welfare Institute was founded in 1951 to reduce the sum total of pain and fear inflicted on animals, including marine mammals, by humans. The Animal Welfare Institute publishes and distributes books, films and educational materials to the public and provides representation, speakers and exhibits at conferences and meetings around the world to address animal welfare issues. The Animal Welfare Institute and its members remain very concerned about the senseless injury and death of marine mammals by low frequency active sonars.
Sea Shepherd Conservation Society (SSCS) is a non-profit marine wildlife conservation organization involved in the investigation and documentation of violations of international laws, regulations and treaties that maintain global biodiversity through the protection of marine wildlife. Sea Shepherd's efforts ended the seal hunt in the Scottish Orkney Islands and the dolphin slaughter in Iki, Japan; combatted pirate pelagic whaling in the Atlantic Ocean and illegal driftnetters in the Pacific Ocean, and contributed to the creation of the "dolphin-safe" tuna label and US ban on the import of tuna caught by setting nets on dolphins. The Society is committed to the goal of stopping illegal activities that are decimating marine species. SSCS participated in the public comment process on the Environmental Impact Statement for the SURTASS LFA system, and advised Defendant Navy of probable adverse impacts of the system and the inadequacy of the DEIS.
The Stop LFAS Worldwide Network is an international, unincorporated association of individuals and affiliated organizations dedicated to the task of creating public awareness about the risks associated with any country deploying Low Frequency Active Sonar (LFAS), including the United States. While most Network associates live within the United States, the membership seeks to organize citizens internationally so as to save our oceans and our planet from the perceived acoustic threat of LFAS. For this reason, the Stop LFAS Worldwide Network coordinates its information resources with cetacean protection groups and environmental organizations. Each individual member is encouraged to interact with government leadership encouraging resolution of this global threat through peaceful negotiation.
Associates include authors, journalists, musicians, wildlife photographers and groups which focus on animal rights, and aquarium issues as well as spiritual and healing groups.
The Network provides regular updates on developments related to LFAS to associates, non-associated subscribers to the Network newsletter, governments of the world, the UN and media. The Network maintains an extensive, publicly accessible web site containing information related to LFAS.
Associates participated in Navy workshops discussing LFAS, conducted and participated in the litigation filed to challenge the Navy's Phase III testing program off the Island of Hawai`i, appeared at public hearings conducted by the Navy as part of the EIS process, and filed comments on the draft EIS issued for deployment of SURTASS LFA. Associates participated with marine mammal experts from other organizations in a California Coastal Commission workshop on LFAS.
The Silent Oceans Trust, a 501 (c) (3) public non-profit organization, is an international educational foundation of ocean stewardship focusing on raising public awareness of the issue of ocean noise pollution. The primary activity of the Trust is the Silent Oceans Project in celebration of and reverence for the sea as the source of life on the planet. The first annual Silent Oceans Day, September 19, 1999, marked the beginning of a five year process of global consciousness raising, educational programs and the creation of international standards concerning human-made sound pollution in the ocean. The day will be repeated on September 19, 2000 globally.
Kohanaiki `Ohana is a 501(c)(3) non profit organization whose goal is to protect the cultural and environmental integrity of Hawai`i's oceans and land. The Kohanaiki `Ohana formed in 1990 as a blending of Hawaiian cultural practitioners and environmentalists working together to protect Hawai`i's unique natural and cultural resources by bringing the Hawaiian perspective into the planning process. The `Ohana continues to advocate for environmental justice; the civil and social rights of the people of Hawai`i; for citizen's voices to be heard; and for Hawaiian values to be integrated into land use policies.
The Universal Cetacean Institute is a non-profit organization based on Kaua`i, Hawaiian Islands, whose mandate is to educate the public regarding protection of marine species. UCI's goal is to encourage respect for and intelligent interaction with the marine environment. UCI has a special focus on captive display industries which trap wild dolphins for public display.
Orca Quest is a Washington State non-profit research project dedicated to research on Orcinus orca (killer whales) and other cetacean species. The primary goal is to establish that the species has a culture as defined by anthropological criteria. The study encompasses behavior as well as other criteria, such as pollution, noise pollution and the effects of sonar on said behavior.
The Whale Rescue Team is a 501(c)(3) non-profit corporation. The team is a group of people who care about marine life and the health of the planet. The Whale Rescue Team takes direct action to rescue and protect marine mammals, including whales, dolphins, and sea lions. Whale Rescue Team works with the City of Los Angeles and the City of Santa Monica to respond, rescue and transport injured and orphaned marine mammals on those cities' beaches.
The Whale Rescue Team also participates in the production of documentaries regarding human abuse of marine mammals.
The Whale Rescue Team supports public policies which ensure a healthy ocean environment and, thereby, minimize the likelihood that the services of the team will be called upon.
Defendant William Jefferson Clinton is President of the United States and constitutionally designated as the Commander in Chief of the Armed Forces.
Defendant William Cohen is Secretary of Defense with responsibility for the actions of the Armed Forces, including the United States Navy.
Defendant Richard Danzig is Secretary of the Navy with responsibility for the actions of the United States Navy.
William M. Daley is Secretary of Commerce with responsibility for the actions of the National Marine Fisheries Service.
Penelope Dalton is Assistant Administrator for Fisheries, National Marine Fisheries Service, with responsibility for receiving and processing Defendant Navy's application for a Letter of Authorization, which is the subject of this suit, and for the actions of the Office of Protected Resources.
Donald R. Nowles is Director, Office of Protected Resources, National Marine Fisheries Service, with responsibility for receiving and processing Defendant Navy's application for a Letter of Authorization, which is the subject of this suit.
Donna Weiting is Chief, Marine Mammal Conservation Division, National Marine Fisheries Service, with responsibility for receiving and processing Defendant Navy's application for a Letter of Authorization, which is the subject of this suit.
Over a period of approximately ten years, Defendant Navy, in violation of various environmental statutes, developed the SURTASS LFA system for the detection of silent submarines.
During the developmental phase of the SURTASS LFA program, Defendant Navy expended considerable irretrievable resources without preparing an environmental impact statement, including funds spent on fabrication, assembly, integration, testing, technical manuals and data for the system itself; engineering support during at-sea testing of the system; and leasing of a ship to carry the system for at-sea testing.
In 1995, the Natural Resources Defense Council (NRDC) discovered Defendant Navy's SURTASS LFA program and threatened suit, if Defendant Navy continued to violate the applicable environmental laws.
On July 18, 1996, Defendant Navy filed a Notice of Intent to prepare an environmental impact statement (EIS) for the operational deployment of the SURTASS LFA system.
Even after commencing the preparation of an EIS, Defendant Navy continued to expend substantial irretrievable resources in furtherance of SURTASS LFA deployment, including building of a ship upon which to deploy the system; fabrication, assembly, integration, testing, technical manuals and data for an additional system and installation of that system aboard the new ship; and engineering support for at-sea certification of the new system. These activities included contracts initiated after the publication of the notice of intent referenced in paragraph 22 above.
On May 18, 1998, Defendant Navy initiated consultation pursuant to Section 7 of the Endangered Species Act with Defendant National Marine Fisheries Service (NMFS) regarding the operational deployment of SURTASS LFA.
As of the date this suit is filed, Defendant Navy continues to expend substantial irretrievable resources and make irreversible commitments in furtherance of SURTASS LFA deployment and has spent in excess of $350 million on the development and deployment of this system. Based on information and belief, the Navy is making every investment necessary to deploy the SURTASS LFA as soon as the EIS is final or shortly thereafter.
Plaintiffs reallege paragraphs 1-25.
By making major, illegal irreversible and irretrievable commitments of resources in preparation for SURTASS LFA deployment, before and after commencing the preparation of an EIS, Defendant Navy compromised the objectivity of the EIS process.
Prior to the NRDC threat to sue, Defendant Navy ignored concerns about potential environmental impacts of the SURTASS LFA system, particularly on marine mammals.
During the testing off Hawai`i, Defendant Navy made no attempt to investigate evidence of adverse impacts emerging at that time, such as a snorkeler reporting traumatic impacts from exposure to a broadcast of the SURTASS LFA system and whale watch captains and shore observers reporting whales disappearing from the testing area.
Defendant Navy refused to permit a presentation regarding the adverse impacts of the Hawaiian testing to its advisory panel for the SURTASS LFA program.
The draft EIS completely ignored evidence of adverse effects obviously known to Defendant Navy. That evidence included all the evidence presented by plaintiffs to the federal courts in Hawai`i during the litigation of suits filed against Defendant Navy to stop the testing of Surtass LFA in March 1998. That evidence also included reports of whale strandings resulting from NATO LFAS broadcasts in the Mediterranean. The omission of this adverse evidence is part of the proof of bad faith conduct of the EIS process.
The draft EIS deliberately misrepresented the actual evidence being discussed, particularly the evidence regarding the presence or absence of whales in the Hawaiian testing area during the testing period.
The draft EIS misused evidence to reach predetermined conclusions. For example, the SURTASS LFA broadcast levels during testing were far below planned operational levels. The scientists conducting the research stated that their limited testing could not be generalized to reach conclusions. Yet the draft EIS assumes that the limited results from the testing can be generalized to define limits on broadcast operations. The draft EIS uses the very limited study done for the EIS process to supplant an accepted body of literature on levels of sound intensity causing responses from marine mammals. The draft EIS further assumes the limited number of species studied provide an adequate basis for assessing environmental harm to all ocean species. These and other misuses of the available evidence manifest a bias toward deployment.
The draft EIS failed to present the legally mandated, detailed statement of irreversible and irretrievable commitments of resources required for the proposed deployment of SURTASS LFA. Instead, the draft EIS presented a one paragraph discussion of irreversible and irretrievable commitments of resources that misrepresented the required inquiry, failed completely to identify the resource commitments required to reach full deployment status, and failed to discuss the irreversible and irretrievable commitments of resources made to date.
The draft EIS failed to discuss alternatives to low frequency active sonar. Based on information and belief, this omission took place despite the fact the Navy is currently funding such alternatives.
Defendant Navy rushed the draft EIS to completion before the completion of Defendant Navy's underlying Scientific Research Program reports.
Defendant Navy refused to withdraw the draft EIS despite being placed on notice of obvious deficiencies in the document.
Defendant Navy made no effort to conduct follow up research on reports of a human injury resulting from the testing off Hawai`i and, therefore, failed to document the continued suffering and lengthy recovery of the injured person.
Defendant Navy made no effort to conduct follow up research to determine whether long term adverse effects on marine life resulted from the adverse effects during the testing performed as part of the EIS process.
Defendant Navy included staff from Defendant NMFS, in the preparation the draft EIS, despite the clear conflict of interest represented by such participation.
Shortly after issuing the draft EIS, Defendant Navy, pursuant to the Marine Mammal Protection Act (MMPA) applied to Defendant NMFS for a Letter of Authorization to deploy the SURTASS LFA world-wide for five years based on the draft EIS. At the time of the application, Defendant Navy was in violation of NEPA and ESA.
Defendant Navy is currently engaged in a major effort to prepare for deployment of the SURTASS LFA system despite the fact the EIS is not yet complete. The level of expenditures to date and the obvious deficiencies in the draft EIS raise the question whether an objective EIS is possible.
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