Conference Call: DOJ Asks Court to Approve Navy Training

The following column by Akin Gump associate Troy D. Cahill, featuring a selected petition up for consideration at the Justices private conference on June 19, appears in todays edition of Legal Times (available to subscribers here). To see the full list of petitions to watch for Thursdays conference, click here.

Since the attacks of Sept. 11, 2001, the Supreme Court has repeatedly confronted politically controversial questions over presidential power exercised in the name of national security.

At the justices private conference on June 19the final one scheduled before the summer recessthe Court will decide whether to enter the fray once more, albeit in a case concerning not Guantánamo detainees or warrantless wiretapping, but sea mammals off the coast of Southern California.

Specifically, the petitionWinter, et al. v. Natural Resources Defense Council, et al. (No. 07-1239)presents two questions on the scope of the presidents power: whether the Council on Environmental Quality, an executive branch agency that coordinates federal environmental efforts, permissibly interpreted its own regulations to determine that a court-ordered injunction can amount to emergency circumstancesand even if such circumstances did not exist, whether a district court properly awarded injunctive relief. The Court could announce whether it will hear the case as early as June 23.

The case has its origins in the Navys scheduling of a series of training exercises in the waters off the coast of Southern California beginning in February 2007. Designed to prepare naval strike groups for deployment to the western Pacific and Middle East, the Navy intended to use a specific frequency of sonar believed to be the most effective method for detecting quiet-running enemy submarines.

A month after the training began, the National Resources Defense Council, along with other environmental groups, sued the Navy and several other federal agencies in the U.S. District Court for the Central District of California on grounds the exercises violated numerous federal laws, including the National Environmental Policy Act and the Coastal Zone Management Act, and sought to enjoin the Navys use of sonar because it is harmful to marine life, particularly endangered beak whales.

After finding the plaintiffs had established a likelihood of success on its statutory claims, Judge Florence-Marie Cooper in January issued a preliminary injunction placing conditions on the Navys sonar use. Under the ruling, the district court required the Navy to cease sonar transmissions whenever a marine mammal was spotted within 2,200 yards (1.25 miles) of any sonar source; and reduce sonar power by six decibels whenever the Navy detects significant surface ducting, an environmental condition characterized by a mixed layer of constant water temperature extending at least 100 feet from the surface, whether or not a marine mammal is present.

While the Navy appealed the injunction, the Council on Environmental Quality, after consultation with the Navy, authorized alternative arrangements for the Navys compliance with the law in relation to the training exercises. The council based its decision on its conclusion that the district courts injunction amounted to emergency circumstances under federal regulations.

The Navy accepted the councils alternative arrangements and the U.S. Court of Appeals for the 9th Circuit remanded the matter to the district court to consider the intervening action of the council. The 9th Circuit also directed the district court to consider the effect of another intervening act by the executive branchthe presidents decision to grant the Navy an exemption from compliance with the Coastal Zone Management Act on grounds that the training exercises and sonar use were of paramount interest to the United States and the ability of the Navy to protect national security.

On remand, Cooper held that the previously ordered preliminary injunction remained an appropriate remedy because the councils alternative arrangements were outside the agencys regulatory authority and because there was no emergency. The 9th Circuit affirmed Coopers decision in February, but stayed the mandatory shutdown limitations and the power-down requirement pending disposition of the petition for a writ of certiorari.

In its petition, the Navyrepresented by then-Solicitor General Paul Clementargues that the 9th Circuits ruling both poses substantial harm to national security and improperly overrides the judgment of the executive.

Clement contends, first, that the councils interpretation of what amounts to an emergency was a reasonable construction of its own regulation, fully comported with the regulations text, and should have been given controlling weight. The petition further maintains that a court order requiring that a violation of the National Environmental Policy Act be remedied before vital military exercises can proceed constitutes an emergency. To support its position that the 9th Circuit failed to afford sufficient deference to the agencys interpretation, the Navy argues that the decision conflicts with National Audubon Society v. Hester, a 1986 decision rendered by the U.S. Court of Appeals for the D.C. Circuit.

Alternatively, the Navy argues that, even if the councils actions were invalid, preliminary injunctive relief was unwarranted because the 9th Circuit wrongly based its affirmance on its conclusion that the plaintiffs had established a possibility of irreparable injury instead of the required showing of a likelihood of irreparable injury; and the lower courts failed to consider the harm to the Navy and the risks the injunction poses to national security.

Opposing certiorari, the National Resources Defense Councilrepresented by Richard Kendall of Irell & Manella of Los Angelesdepicts the case as one in which the Navy has failed to identify any legal issue appropriate for certiorari and one that simply seeks review of fact-bound issues. According to the plaintiffs, the district court found, and the 9th Circuit affirmed, a near certainty of harm, not a mere showing of a possibility of irreparable harm. Moreover, the plaintiffs argue that, in granting the injunction, the lower courts properly weighed the interests of the Navy.

The plaintiffs further argue that the 9th Circuit correctly concluded that the councils action did not require the district court to vacate the injunction because the agencys factual findings were likely invalid, the councils application of its regulation to the facts of this case conflicted with the language and purpose of the National Environmental Policy Act, and the agencys unprecedented extension of its regulation to overturn a court-ordered injunction exceeded the scope of the regulation and raised serious separation of powers issues. Troy D. Cahill

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