Cetacean Community v. Bush

386 F.3d 1169 (9th Cir. 2004)


P is the name chosen by the Cetaceans' self-appointed attorney for all of the world's whales, porpoises, and dolphins. Ps challenge the United States Navy's use of Surveillance Towed Array Sensor System Low Frequency Active Sonar during wartime or heightened threat conditions. Ps allege that the Navy has violated, or will violate, the Endangered Species Act, the Marine Mammal Protection Act, and the National Environmental Policy Act. Ps contend that the Navy's SURTASS LFAS sonar detection system harms them by causing tissue damage and other serious injuries, and by disrupting biologically important behaviors including feeding and mating. The negative effects of underwater noise on marine life are well recognized. Very strong sounds have the potential to cause a temporary or permanent reduction in hearing sensitivity. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration, and other functions. This trauma may include minor to severe hemorrhages. Ps seek to compel D to undertake a regulatory review of the use of SURTASS LFAS during threat and wartime conditions. Ps seek an injunction ordering D to consult with the National Marine Fisheries Service under the ESA, to apply for a letter of authorization under the MMPA, \ and to prepare an environmental impact statement under NEPA. Ps seek an injunction banning the use of SURTASS LFAS until D complies with what Ps contend these statutes command. Ds moved to dismiss under 12(b)(1) for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. The district court granted the motion to dismiss. The court held that Ps lacked standing under the ESA, the MMPA, NEPA, and APA. Ps appealed.