INDEX - JUSTICE
www.islandbreath.org ID# 0715-07
SUBJECT: SONAR USE JUDGEMENT
SOURCE: MARK PALMER email@example.com
POSTED: 7 AUGUST 2007 - 10:00am HST
Judge restricts sonar off California Coast
imgae above: Navy graphics on public relations webpage explaining the use of sonar
by Kenneth R. Weiss on 7 August 2007 in The Los Angeles Times
Federal jurist backs activists, saying use during training exercises off Southern California could harm whales. A federal judge in Los Angeles banned the U.S. Navy from using high-powered sonar in nearly a dozen upcoming training exercises off Southern California, ruling Monday that it could "cause irreparable harm to the environment."
U.S. District Judge Florence-Marie Cooper issued the preliminary injunction after rejecting the Navy's request to dismiss a lawsuit brought by the Natural Resources Defense Council.
The lawsuit, along with a similar one filed by the California Coastal Commission, argues for broader safeguards to protect marine mammals from powerful blasts of mid-frequency active sonar that have been linked elsewhere to panicked behavior and mass die-offs of whales.
The Navy, which plans to appeal the decision, said even a temporary ban would disrupt crucial training of sailors before they are sent overseas. The Navy uses the sonar to detect potentially hostile vessels, including quiet diesel submarines, which one captain called "the most lethal enemy known" on the high seas.
"It's akin to sending a hunter into the woods after one of the most lethal preys known, but sending him in partly deaf and blind," said Navy Capt. Neil May, assistant chief of staff for 3rd Fleet training and readiness.
Over the last decade, scientists have linked mid-frequency active sonar to a number of mass strandings or panicked behavior of whales after naval exercises in the waters off Greece, Hawaii, the Bahamas and elsewhere.
In a well-documented case near the Canary Islands in 2003, an international team of scientists found that at least 10 beaked whales probably succumbed to the bends after bolting to the surface in a panic.
The dead whales washed ashore after the Spanish navy led international military exercises involving warships from the United States and other members of the North Atlantic Treaty Organization. Pathologists found tissue in the whales' internal organs that appeared to have been damaged by compressed gas bubbles bursting inside them.
Navy lawyers argued in court that mid-frequency active sonar is crucial to national security and to keeping sailors safe from attacks by enemy submarines. Unlike passive listening devices that rely on detecting sounds, mid-frequency active sonar emits bursts of sound waves that can reveal even quiet submarines.
"Today, dozens of countries - including North Korea and Iran - have extremely quiet diesel-electric submarines, and more than 180 of them operate in the Pacific," said Vice Adm. Samuel Locklear, commander of the U.S. 3rd Fleet. "Active sonar is the best system we have to detect and track them."
To remove the temporary ban, the Navy will have to take the case to the U.S. 9th Circuit Court of Appeals. Navy lawyers plan to move quickly because the next training mission is scheduled to begin in September.
Cooper said it was never easy to balance the interests of wildlife with those of national security. But in this case, she said, environmental lawyers have made a persuasive case that the potential harm to whales and other marine life outweighs any harm to the Navy while the court case proceeds.
The lawsuit, according to environmental lawyers, could be settled quickly if the Navy would agree to more sweeping precautions, such as shutting off or reducing the intensity of the sonar when visibility is too low for spotters stationed on deck to see whales that venture into harm's way.
Joel Reynolds, a senior attorney with the Natural Resources Defense Council, said the judge's ruling in no way restricts the Navy's ability to use sonar against real threats or in battle. Instead, he said, the court decision zeroes in on training exercises planned long in advance in waters rich with endangered blue whales, various kinds of dolphins and migrating gray whales.
"Just as the Army has a responsibility not to train soldiers to shoot in the middle of a crowded city street, the Navy has a duty, when it's learning how to hunt with sonar, not to choose a practice range next to a marine sanctuary."
Cooper also ruled against the Navy last year in an earlier case, temporarily blocking the use of active sonar in multinational war games near Hawaii.
Ultimately, her decision forced the Navy to negotiate with environmentalists and establish a buffer zone and other precautionary measures before conducting its monthlong Rim of the Pacific exercises involving 40 surface ships and six submarines from the U.S., Korea, Japan and Australia.
Other federal judges have also shut down or forced the Navy and various marine researchers to negotiate for stronger safeguards. The U.S. Navy has already conducted three of 14 planned training missions scheduled over the next two years in Southern California waters.
Naval attorneys said in court Monday that there was no evidence of strandings, injuries or even behavioral disturbances in marine mammals during those exercises. But the Navy's own environmental assessment, Cooper noted, predicted that the exercises using powerful sonar will harass or disrupt the behavior of marine mammals 170,000 times and will cause hundreds of cases of permanent injury to deep-diving whales.
"The predicted permanent injury of 436 Cuvier's beaked whales is especially significant in light of" federal scientists' "estimate that there are as few as 1,211 such whales remaining off the entire U.S. West Coast," Cooper wrote in a detailed, 19-page tentative ruling.
The judge also took issue with an array of measures to protect whales that the Navy has already put in place, including rules that prohibit using the sonar within 1,000 yards of marine mammals. Sound waves may not dissipate to sublethal levels for more than 5,000 yards, she noted.
Environmental lawyers have argued for a larger safety zone, as well as for a 12-mile buffer along the coastline. They want training missions to remain a respectful distance from the Channel Islands National Marine Sanctuary, and they want the Navy to use acoustic monitoring as well as spotters in aircraft to watch for whales.
The California Coastal Commission, which filed a similar lawsuit, has also been negotiating with the Navy for extensive safeguards. Its hand was significantly strengthened Monday when Cooper ruled that the Navy had failed to comply with the federal Coastal Zone Management Act.
That's the law that gives the California Coastal Commission power to influence federal activities in waters off the state.
Paul Achitoff - Earthjustice Hawaii at (808) 599-2436
Marsha Green - Ocean Mammal Institute at (610) 670-7386
Mark Palmer - International Marine Mammal Project at (415) 788-3666