Jump to Navigation
Jump to Content

Defenders of Wildlife v. United States Department of the Navy

ELR Citation: 43 ELR 20227
Nos. 12-15680, (11th Cir., 10/01/2013)

The Eleventh Circuit affirmed a lower court decision dismissing environmental groups' claim that the U.S. Navy and the National Marine Fisheries Service (NMFS) violated NEPA, the ESA, and the APA in deciding to install and operate an undersea warfare training range in waters adjacent to the only known calving grounds of the endangered North Atlantic right whale. The groups argued that the Navy violated NEPA because it signed a construction contract before it has issued a record of decision (ROD) for the project. But the Navy did issue its ROD before it signed the contract. Although the ROD only authorized a portion of the entire range proposal, the groups failed to point to any provision in NEPA requiring an agency to authorize all phases of a proposed action evaluated in an EIS at the time it issues a ROD. The groups also argued that NMFS' biological opinion was arbitrary and capricious in violation of the ESA because it did not “meaningfully” analyze the “entire action” proposed by the Navy—including both the installation and the operation phases of the range. But the biological opinion clearly considered the specific types of training proposed for the range. Moreover, NMFS' decision to postpone the issuance of the incidental take statement for all listed species until closer in time to when the operations that warrant it actually occur was not inconsistent with the ESA's statutory scheme or otherwise arbitrary or capricious. The lower court's grant of summary judgment in favor of the government was therefore affirmed.