On January 14, 2000, the following email went to the Secretary of Commerce William M. Daley (WDaley@doc.gov) with a copy to the Secretary of the Navy Richard Danzig (danzig.richard@hq.navy.mil). This notice starts the clock on the legally required sixty days notice for suits filed under the Endangered Species Act, hence the reference to 16 U.S.C. Section 1540(g)(2)(A). That limitation on filing a citizen suit does not apply to actions filed under the National Environmental Policy Act, i.e. such an action can be filed at any time.
William M. Daley
Secretary of Commerce
Washington, D.C.
Dear Mr. Secretary,
This email is notification to you pursuant to 16 U.S.C. Section 1540 (g)(2)(A) that the United States Navy is violating the Endangered Species Act and that the National Marine Fisheries Service is ignoring and thereby accepting as legitimate the Navy's illegal activities.
As I am sure you are aware, the Navy is preparing an Environmental Impact Statement (EIS) for the deployment of their low frequency sonar system known as SURTASS LFA.
The National Environmental Policy Act requires that an agency preparing an EIS evaluate alternatives pursuant to 42 U.S.C. Section 4332(C)(iii) and (E). Related to that duty is a clear duty to prepare a detailed statement regarding irreversible and irretrievable commitments of resources which would be made if the proposed action were pursued. 42 U.S.C. Section 4332(C)(v). Until such time as the EIS is complete, the agency has an obligation to avoid making irreversible or irretrievable commitments of resources.
The Endangered Species Act, Section 7 has a similar provision forbidding irreversible or irretrievable expenditure of resources prior to the decision under ESA. 16 U.S.C. Section 1536(d). That provision is triggered once an agency requests consultation with NMFS.
In the draft EIS for SURTASS LFA deployment, there is an Appendix containing communications between the Navy and various federal agencies, appearing on unnumbered pages. In that Appendix, there is a letter from the Navy to NMFS requesting assistance pursuant to Section 7 of ESA dated May 18, 1998 and a reply from NMFS dated January 23, 1999 acknowledging that the Navy had requested consultation pursuant to Section 7 for the "proposed operational deployment" of SURTASS LFA.
At this time, the Navy EIS is still at the draft stage. Thus, under both NEPA and the ESA, the Navy is under an obligation to avoid making irreversible or irretrievable commitments of resources until the EIS process is complete.
Despite these clear duties, the Navy continued to make major commitments of resources to SURTASS LFA after filing its notice of an intent to prepare an EIS on July 18, 1996 and after initiating consultations with NMFS on January 23, 1998. The Navy is actively pursuing its preparations for SURTASS LFA deployment through the construction of a ship to carry the system, the installation on the ship of the necessary infrastructure to operate the system, the fabrication of a new system, and other major investments in furtherance of deployment. These commitments constitute violations of both NEPA and the ESA.
Your office has been on notice of the Navy committing irretrievable resources prior to completing the EIS since at least March 25, 1998. At that time, plaintiff in a suit filed against you, in your official capacity as Secretary of Commerce, and others submitted evidence of extensive, ongoing expenditures by the Navy preparing for deployment of SURTASS LFA. Kanoa, Inc. dba Body Glove Cruises v. William Jefferson Clinton et al., CV98-00250 (DAE), Memorandum in Support of Motion for Declaratory Relief, Temporary Restraining Order, and Preliminary Injunction filed March 25, 1998 at 12-13.
In August 1999, pursuant to Section 101(a)(5)(A) of the Marine Mammal Protection Act, the Navy filed an application to NMFS for a Letter of Authorization for a five year deployment of SURTASS LFA. On October 22, 1999, NMFS published advanced notice of proposed rulemaking as a response to the Navy application. Federal Register, Volume 64, No. 204 at 57026. The application is based on the draft EIS. The notice of this application included a request for comment and information to be submitted to NMFS within thirty days.
In response to the notice and request for comments, I and numerous others filed objections to NMFS considering the application. Those objections were based on various grounds, including the premature nature of the application given that the EIS was not complete. Despite those objections, NMFS continues to process the application.
There are other factors which call into question the integrity of the NMFS process. In the same Appendix to the draft EIS noted above, there is an April 1, 1999 letter from Hilda Diaz-Soltero which includes the following statements:
"In cooperating with the U.S. Navy on this activity, NMFS has a dual role, both through (and limited to) review and comment on the DEIS during preparation and in the regulatory process involved with processing an incidental small take application under 101(a)(5)(a) of the Marine Mammal Protection Act. NMFS will also be in formal consultation with the U.S. Navy for this activity under Section 7 of the Endangered Species Act. Therefore, although NFMS agrees to be a fully cooperating agency in the preparation of the DEIS, because of its regulatory role, we believe that it would be inappropriate for NMFS to be a signatory agency on the document."
Despite the clear and correct description of the appropriate role of NMFS as limited to review and comment, the DEIS contains a section entitled List of Preparers which includes the Department of Commerce (NOAA) and identifies Mr. Kenneth Hollingshead and Mr. Roger Gentry of the NMFS Office of Protected Resources as among those involved in preparing the DEIS.
The Navy's application for a Letter of Authorization is now being processed by the same Office of Protected Resources. The Federal Register notice also directs requests for further information to the same Kenneth Hollingshead appearing as one of those preparing the DEIS.
There appears to be an obvious conflict of interest for the staff of the Office of Protected Species to engage in the preparation of another agency's DEIS and then be given the responsibility for a regulatory decision based on their own work.
As I am sure you are aware, the NEPA EIS process requires an agency to consider alternatives, including the "no action" alternative. If the Navy is conducting an honest EIS process, the assumption is that the Navy may decide not to deploy the SURTASS LFA. All resources being spent by NMFS to process the application would then be wasted. I assume it is not the policy of NMFS to waste its limited resources processing requests by applicants who have not yet decided whether to pursue the activity covered by the request.
The corollary to this observation is that the NMFS processing of the application constitutes an implicit assumption that deployment will take place, i.e. that the Navy is not conducting an honest EIS process. NMFS processing of the Navy's application under these circumstances amounts to NMFS acceptance of the Navy's violations of NEPA and ESA.
NMFS is, therefore, in a position where NMFS is spending resources processing an application for deployment made by an agency currently in violation of NEPA and ESA regarding that very issue, is giving responsibility for that processing to an office with a conflict of interest in making the regulatory decision, and, therefore, is actively cooperating with the Navy in violating the law.
I bring this matter to your attention so that you can take appropriate action. I urge you to take enforcement action to prevent the Navy from further violating the ESA. I also urge you to order NMFS to cease any further processing of the application until such time as the Navy is in compliance with NEPA and ESA and has completed its EIS process.
Thank you for your attention to this notice of violation. I look forward to hearing from you.
Aloha,
Lanny Sinkin
Mail Copy to: William M Daley
Secretary of Commerce
14th Street and Constitution, N.W.
Washington, D.C. 20230
c.c. Secretary of the Navy Richard Danzig
danzig.richard@hq.navy.mil
Mail Copy to: Richard Danzig
Secretary of the Navy
1000 Navy Pentagon
Washington, D.C. 20350-1000
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