Court Says Military’s Needs Come before Whales

September 2nd, 2007 - by admin

Bob Egelko / San Francisco Chronicle & Kevin Fagin / San Francisco Chronicle – 2007-09-02 08:08:13

Whales get blown off: Federal court says Navy can do sonar testing

(September 1, 2007) — A federal appeals court allowed the Navy on Friday to resume using underwater sonar blasts in anti-submarine warfare tests off Southern California despite possible harm to endangered whales, saying the nation’s military needs come first.

“The safety of the whales must be weighed, and so must the safety of our warriors. And of our country,” said the Ninth US Circuit Court of Appeals in San Francisco.

The 2-1 ruling suspended an Aug. 6 injunction by a federal judge in Los Angeles that ordered the Navy to halt the sonar experiments during training exercises off the Channel Islands planned through January 2009. Three of the 14 scheduled tests had already been conducted before the judge intervened.

In her ruling, US District Judge Florence-Marie Cooper said the underwater sound waves could harm nearly 30 species of marine mammals, including five species of endangered whales. She said the Navy’s planned protective measures were “woefully inadequate and ineffectual,” and cited the Navy’s estimate that the tests would cause 466 permanent injuries to whales.

The appeals court said Cooper had failed to consider the need for military preparedness.

“We are currently engaged in war, in two countries,” said Judge Andrew Kleinfeld in the majority opinion, joined by Judge Consuelo Callahan. “There are no guarantees extending from 2007 to 2009 or at any other time against other countries deciding to engage us, or our determining that it is necessary to engage other countries.

“We customarily give considerable deference to the executive branch’s judgment regarding foreign policy and national defense,” the court said.

In dissent, Judge Milan Smith said the nation’s environmental laws apply to the armed forces. He said the Navy is conducting similar tests all over the world and would suffer no hardship by delaying its Southern California exercises until it adopts adequate protective measures.

“There is no ‘national security trump card’ that allows the Navy to ignore (the environmental law) to achieve other objectives,” Smith said.

But the court majority said the tests should be allowed to resume, while the case continues, because the government is likely to be able to show that sonar can be used safely, with some protective measures, and that the Channel Islands area is an essential testing site.

Capt. Scott Gureck, a Navy spokesman, said the ruling “allows us to resume active sonar training for our carrier and expeditionary strike groups,” training he said was essential before the groups deploy to the western Pacific, the Middle East and around the world.

Sonar is the best way to detect quiet diesel-electric submarines used by more than 40 nations, including Iran and North Korea, the Navy said.

Attorney Michael Jasny of the Natural Resources Defense Council, which has challenged the sonar tests in years of litigation, said the organization would press its case in the appeals court.

The question is not whether the Navy needs such tests, he said, but “whether the environment should be unnecessarily harmed and endangered species threatened.”

There are many steps the Navy could take to lessen the harm to the whales and other marine life, Jasny said, including measures that foreign navies and even the US Navy itself have used in the past.

The Navy had been allowed to conduct sonar tests in the area in previous years while taking such steps as using lookouts and reducing sound levels when whales were spotted, or during conditions that allowed sound waves to travel farther than usual.

Navy officials have dropped most of those measures from the current tests, apart from the continued posting of lookouts. The California Coastal Commission, which reviewed the testing plans, concluded in January that additional protections were needed, such as steering clear of the Channel Islands National Marine Sanctuary and the annual migration path of the gray whales.

The Navy said it was not bound by those conditions and declared that its tests would cause no harm to marine mammal populations.

Gureck, the Pacific Fleet spokesman, said the Navy “employs extensive mitigation measures, approved by the National Marine Fisheries Service, to minimize the risk to marine life whenever active sonar is used.”

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Environmental Campaigners Respond

In our Southern California sonar case, as you know, the Navy had asked the 9th circuit for an emergency stay of the District Ct’s injunction pending full review by the 9th circuit of the merits of the appeal. A three-judge motions panel ruled 2-1 this morning and granted the stay (which I’ll forward to Ingrid for posting).

Some encouraging aspects about the majority opinion:

• The majority does not question the District Ct’s findings on any of the substantive issues, incl. irreparable harm. It seems to accept that MF sonar is harmful, that the Navy is not complying with federal law, and that the Navy is not doing enough to mitigate harm to marine mammals.

• The majority suggests that a more tailored injunction applying additional mitigation measures may work.

• There is a strong and well-reasoned dissent from Smith, which, among other things, correctly points out the majority is applying the wrong standard on review.

• The panel expedites full review by the 9th circuit of Judge Cooper’s order. We’re awaiting an expedited briefing schedule, but this means that the Navy is unlikely to able to conduct perhaps more than 1 of its exercises before the 9th circuit issues its full ruling.

We remain very confident that we’ll win the full appeal-which would reinstate the preliminary injunction. We’ll keep you posted.

Michael Jasny
Senior Policy Analyst
Natural Resources Defense Council
4479 W. 5th Avenue
Vancouver, BC V6R1S4