Natural Resources Defense Council, Inc. v. Pritzker

This appeal presents 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. The appeal concerns the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar (SURTASS LFA or “LFA sonar”). Congress has required that NMFS set limitations on activities that may cause “take” — i.e. harm to marine mammals — such as military readiness activities, to reduce their impacts to the least practicable level. The question here is whether NMFS correctly authorized the incidental take of marine mammals in connection with the Navy’s use of LFA sonar for training, testing, and routine operations. NMFS determined that the incidental take of a specified number of marine mammals by use of LFA sonar would have a negligible impact on the marine mammal species, and Plaintiffs do not appeal that determination. Plaintiffs appeal only the district court’s conclusion that NMFS’s mitigation measures satisfied…