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Conservation Council for Hawaii v. National Marine Fisheries Service

ELR Citation: 45 ELR 20065
Nos. 13-00684 & 14-00153, (D. Haw., 03/31/2015) (Mollway, J.)

A district court held that the National Marine Fisheries Service (NMFS) violated the Marine Mammal Protection Act (MMPA), the ESA, and NEPA when it authorized the U.S. Navy to take large numbers of marine mammals, some of which are endangered or threatened, incidental to training and testing activities in an area of the Pacific Ocean known as the Hawaii-Southern California Training and Testing (HSTT) Study Area. NMFS' finding that the proposed activities will have a "negligible impact" on affected species or stock in the HSTT Study Area was arbitrary and capricious under the MMPA. NMFS failed to analyze the effects of authorized takes on many affected species and stocks, failed to use the best scientific evidence available, and performed only a cursory analysis of ways to mitigate the negative effects of the Navy’s activities. NMFS also violated the ESA, as its biological opinion included an arbitrary and capricious "no jeopardy" finding for whales and an invalid incidental take statement and no jeopardy finding for turtles. And the EIS prepared by the Navy and adopted by NMFS failed to analyze a true "no action" alternative, much less alternatives with less environmental harm, in violation of NEPA.