Opinion
Civ. No. 02-3805-EDL
October 14, 2003
THOMAS L. SANSONETTI
JEAN WILLIAMS, Chief
KRISTEN L. GUSTAFSON, Trial Attorney
ANN D. NAVARO, Senior Attorney Washington, D.C.
KEVIN V. RYAN United States Attorney
JAJVIES A. CODA Assistant United States Attorney San Francisco, California, for Defendants
ANDREW B. SABEY, ROBIN S. STAFFORD Morrison Foerster LLP San Francisco, California
JOEL R. REYNOLDS ANDREW E. WETZLER Los Angeles, California, for Plaintiffs
STlPULATION REGARDING PERMANENT IN JUNCTION
Pursuant to the Court's August 26, 2003, Opinion and Order on Cross Motions for Summary Judgment (Opinion and Order) in this matter, and after the meet and confer process directed by that Opinion and Order, the parties have arrived at the following Stipulation:
1. Neither party waives any right of appeal from the Opinion and Order or from the Order entering this Stipulation by entering into the meet and confer process or by submitting this agreed upon Stipulation.
2. The parties agree that all negotiations leading up to this Stipulation are confidential.
3. The parties agree that this Stipulation shall remain in effect unless modified by the Court until the earlier of: (a) the expiration of the Final Rule, 50 C.F.R. Part 216, Subpart Q (Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar) (Final Rule); (b) the determination by this Court, pursuant to a noticed motion or stipulation by the parties, that the Opinion and Order and this Stipulation are superseded by subsequent relevant events or authority, including but not limited to the outcome of any appeal; or (c) the issuance of a mandate by a higher court which overturns this Court's Opinion and Order and vacates the injunction.
4. The parties agree that if the Navy wishes to seek an alteration to the stipulated operational areas (described in paragraph 5 below) for the final two years of the Final Rule, the parties shall engage in a meet and confer process with the assistance of a court-designated mediator. This meet and confer process shall be subject to the Opinion and Order and any subsequent relevant opinions, orders, or other applicable authority. No later than April 1, 2005, the parties agree to submit a joint status report to the Court stating whether there is a need for a further meet and confer process. The parties agree to complete this meet and confer process no later than August 1, 2005. If the meet and confer process does not yield an agreement, any party may apply to the Court for resolution of the dispute.
5. The parties agree that the attached maps and associated text describing coordinates and seasonal restrictions (Tabs 1, 2, 3, 4) will govern operations of SURTASS LFA sonar under the current Letters of Authorization ("LOAs") or any future LOAs issued during the pendency of the Stipulation until one of the events described in paragraphs 3 and 4 above occurs. The associated map text reflects the following coastal exclusion zones wherein received sound pressure levels shall not exceed 180 dB: (a) for the Stipulated Area within the Philippine Sea, a coastal exclusion zone of at least 60 nautical miles or 30 nautical miles seaward of the 200 meter isobath, whichever is greater, except for waters adjacent to Taiwan, which shall be subject to "(b)" below; and (b) for all other areas, a coastal exclusion zone of at least 30 nautical miles. In the event of a discrepancy between the maps in Tabs 1 through 4 and the associated map text, the associated text controls. Likewise, in the event of a discrepancy between this paragraph's description of the associated map text ((5)(a) and (b) above) and the map text itself, the map text controls. The parties agree that the Navy shall also observe a coastal exclusion zone of 30 nautical miles around any islands occurring within the stipulated areas of operation.
6. The Navy agrees that if SURTASS LFA sonar transmissions are delayed or suspended as a result of the detection by the HF/M13 sonar, passive sonar, or visual observation within the 180 dB plus the one-kilometer buffer zone, as set forth in 50 C.F.R. § 216.184(b), of a marine mammal, sea turtle, or other marine species, transmissions will not resume until 15 minutes after there are no further detections by the HF/M3 sonar or by visual observations of the marine mammal, sea turtle, or other marine species within the 180 dB plus the one-kilometer buffer zone.
7. The parties agree that the Navy is not required to conduct "pre-operation surveys," as described in the Opinion and Order, for the duration of this Stipulation.
8. Operation of SURTASS LFA pursuant to this Stipulation shall remain subject to the applicable Letters of Authorization issued by the National Marine Fisheries Service. In the event of a conflict between this Stipulation and any Letter of Authorization, the more restrictive condition, provision, or requirement will apply.
9. This Stipulation shall not be deemed a waiver by either party of the right to claim or oppose attorney's fees.
10. This Stipulation is not to be construed as a concession by either party as to (a) the potential impacts on marine mammals or other animals of operating SURTASS LFA sonar, (b) the absence or presence of marine mammals or other animals in any areas depicted on the attached maps, or (c) the validity of any other fact or legal position concerning the claims or defenses in this action.
11. Nothing in this Stipulation shall prevent any party from returning to the Court at any time to seek relief from its terms.
SO STIPULATED.
Respectfully stipulated to and submitted this 8th day of October 2003,
The terms of the above Stipulation are hereby approved and so ORDERED.
Philippine Sea Area
Posit # Latitude Longitude Posit # Latitude Longitude
Philippine Sea Year-Round 1 1000.0 N 12709.5 E 19 3134.6 N 132 38.6 E 7 1000.0 N 13716.0 E 20 3005.1 N 132 02.4 E 3 1100.0 N 13737.0 E 21 2741.6 N 130 54.9 E 4 1100.0 N 14044.6 E 22 2533.5 N 128 19.4 E 5 1000.0 N 14131.9 E 23 2526.9 N 126 48.3 E 6 1000.0 N 15500.0 E 24 2419.4 N 125 50.8 E 7 4000.0 N 15500.0 E 25 2326.6 N 123 42.3 E 8 4000.0 N 14332.7 E 26 2353.4 N 122 53.3 E 9 3509.6 N 14155.4 E 27 2401.3 N 122 15.8 E 10 3417.2 N 14055.2 E 28 2302.2 N 121 56.4 E 11 3306.7 N 14058.4 E 29 2129.7 N 122 13.8 E 12 3102.2 N 14117.3 E 30 2122.6 N 122 39.9 E 13 2824.4 14252.1 E 31 2055.4 N 123 04.8 E 14 2701.8 N 14047.1 E 32 1703.5 N 123 35.4 E 15 3010.7 N 13910.3 E 33 1533.5 N 123 01.2 E 16 3245.7 N 13835.4 E 34 1441.2 N 125 07.0 E 17 3334.3 N 13814.5 E 35 1231.1 N 126 28.9 E 18 3229.3 N 13612.3 E Philippine Sea Exclusion Zone Restricted 1 2849.9 N 14153.9 E 20 1240.5 N 144 35.8 E 2 2824.0 N 14252.8 E 21 1252.2 N 144 14.9 E 3 2739.4 N 14315.9 E 22 1319.9 N 14401. 1 E 4 2633.3 N 14316.6 E 23 1357.6 N 144 15.4 E 5 2551.3 N 14257.4 E 24 1445.4 N 145 01.0 E 6 2454.2 N 14222.7 E 25 1500.0 N 144 37.4 E 7 2422.9 N 14226 2 E 26 1644.9 N 144 46.6 E 8 2357.5 N 14224.2 E 27 1917.6 N 14431. 1 E 9 2126.0 N 14444.6 E 28 2015.0 N 144 00.7 E 10 2124.5 N 14513.5 E 29 2032.5 N 143 56.1 E 11 2101.1 N 14543.5 E 30 2050.2 N 143 59.3 E 12 1955.5 N 14621.7 E 31 2320.0 N 141 41.6 E 13 1814.8 N 14646.6 E 32 2319.3 N 141 18.8 E 14 1733.4 N 14649.8 E 33 2331.0 N 140 50.2 E 15 1630.0 N 14642.4 E 34 2355.9 N 140 31.0 E 16 1500.0 N 14643.0 E 35 2451.7 N 140 15.3 E 17 1451.2 N 14613.5 E 36 2539.0 N 140 18.3 E 18 1347.4 N 14544.3 E 37 2710.0 N 140 44.8 E 19 1250.1 N 14504.4 E 38 2850.0 N 141 53.9 E