NATIONAL RESOURCES DEFENSE COUNCIL, INC. v. WINTER
The Ninth Circuit Court of Appeals today released an order in NATIONAL RESOURCES DEFENSE COUNCIL, INC. v. WINTER, No. 07-56157, an appeal in a civil action against the United States. The panel consisted of KLEINFELD, CALLAHAN, and M. SMITH, Circuit Judges.
MILAN D. SMITH, JR., Circuit Judge, dissenting in part and concurring in part. I respectfully dissent to the granting of a stay of the district court’s preliminary injunction. The district court did not abuse its discretion when it issued a preliminary injunction against the Navy’s use of MFA sonar during certain planned exercises in the SOCAL range through January 2009. The Navy has not shown a probability of success on the merits of this case or raised serious questions about the merits. In weighing the possibility of irreparable injury, balancing hardships, and determining where the public interest lies, the district court carefully considered and weighed the national security and public interest issues presented by this case. Until very recently, the Navy employed some environmental mitigation measures it now rejects in the name of national security. Moreover, the Navy has the ability to continue training its personnel in the use of MFA sonar technology pending the outcome of the merits of this case by conducting MFA sonar exercises outside the SOCAL range. In fact, the district court received evidence that the Navy is testing MFA sonar technology “all over the world all the time.” It is the Navy’s sharp starboard tack from its recent training practices that has left it in irons fighting environmental 14 . . .