United States Ninth Circuit

In an environmental appeal presenting a challenging question relating to the proper scope under the Marine Mammal Protection Act (MMPA) of mitigation measures required to protect marine mammals when the responsible federal agency, the National Marine Fisheries Service (NMFS), seeks to approve incidental 'take' relating to military readiness activities, namely, the Navy's peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar, the District Court's grant of summary judgment to federal defendants is reversed where: 1) the agency's 2012 Final Rule did not establish means of 'effecting the least practicable adverse impact on' marine mammal species, stock and habitat, as was specifically required by the MMPA; 2) the agency impermissibly conflated the 'least practicable adverse impact' standard with the 'negligible impact' finding; and 3) the agency did not give adequate protection to areas of the world's oceans flagged by its own experts as biologically important, based on the present lack of data sufficient to meet their designation criteria.

Appellate Information

• Published 2016/07/15

Judges

• GOULD

Court

• United States Ninth Circuit

Counsel