Kenneth R. Weiss / Los Angeles Times – 2007-11-16 00:02:04
SAN FRANCISCO (November 14, 2007) — A federal appeals court Tuesday restored a ban on the US Navy’s use of submarine-hunting sonar in upcoming training missions off Southern California until it adopts better safeguards for whales, dolphins and other marine mammals.
The order allows the Navy to continue its current exercises, but will force the Pentagon to devise ways to ensure that marine mammals are not harassed or injured by powerful sonic blasts during a series of training missions slated to begin in January.
Those precautions, such as reducing sonar power at night, when whales are not easily spotted, will have to be approved by the same federal court in Los Angeles that ordered the initial sonar ban in August.
Tuesday’s decision by a three-judge panel of the US 9th Circuit Court of Appeals came in a case that had pitted the interests of unencumbered military training against environmental protection.
At issue is mid-frequency, active sonar, a technology developed to hunt for Soviet submarines in the deep ocean. The Navy has adopted the technique in coastal waters to train sailors for a potential threat posed by quiet, diesel-electric submarines operated by North Korea, Iran or other nations.
US and NATO warships using mid-frequency sonar near land have, at times, left behind clusters of panicked and sometimes fatally injured whales and dolphins in the Pacific and Atlantic oceans and in the Mediterranean Sea.
US District Judge Florence-Marie Cooper had issued a temporary injunction forbidding the Navy from training with sonar off Southern California until she could hear the merits of a case brought by the Natural Resources Defense Council and other groups.
The Navy appealed her decision and won a reprieve from the 9th Circuit Court. Tuesday’s ruling restored the original court decision, essentially forcing the world’s most powerful navy either to negotiate with environmental attorneys or unilaterally propose measures that will satisfy the district court.
In its five-page ruling, the three judges said that the environmental groups had shown a “strong likelihood” of winning their lawsuit and that the Navy had used many of the additional safeguards those groups have been pushing.
At the same time, the panel said Cooper did not explain why “a broad, absolute injunction . . . for two years was necessary to avoid irreparable harm to the environment.”
The panel ordered the judge to narrow the injunction to allow the Navy to increase its safeguards and proceed with training exercises that military officials say are needed to certify sailors as battle-ready.
Both the Navy and environmental attorneys claimed some measure of victory in the ruling.
“We are encouraged that the appeals court found the original injunction was too broad and ordered the district court to tailor mitigation conditions under which the Navy may conduct its training,” Navy spokesman Capt. Scott Gureck said in a statement. He declined to reveal the Navy’s next move, saying: “We are considering our options.”
Attorney Richard Kendall, representing environmental groups, said his clients will offer to meet with the Navy immediately to fashion timely remedies that will not disrupt the Navy’s training schedule.
“Our position has been the same all along: We are not opposed to training, but we are opposed to training without precautions that will prevent unnecessary harm to whales and other marine mammals,” Kendall said. “We’re pleased that the appeals court has upheld our position.”
The California Coastal Commission, which also sought additional safeguards that were rejected by the Navy, has joined the lawsuit.
The commission has some say in Navy activities because of a federal law that empowers states to protect their coastal resources.
The Navy says it already uses 29 protective measures during the exercises, including placing personnel on ships to look for marine mammals and turning off sonar when dolphins or whales come within about 1,000 yards of sonar-emitting ships.
The Coastal Commission and other groups want to double the radius of that “safety zone” and require the Navy to reduce the intensity of sonar at night and during rough sea conditions, when whales and dolphins cannot be spotted.
The commission and environmentalists are pushing the Navy to avoid training in the gray whale migration route, typically within a dozen miles of the coast, and to avoid the Channel Islands, shallow banks and seamounts, where marine mammals tend to congregate.
“The Navy is faced with a brick wall,” said Joel Reynolds, an attorney with the Natural Resources Defense Council. “It has no alternative but to increase the level of protections for marine life.”
In a similar lawsuit brought by environmentalists, the Navy agreed last year to expand its buffer zone, and take other steps during multinational “Rim of the Pacific” exercises held off Hawaii in July 2006.
The Navy appeared to be eager to take the issue to the Supreme Court and establish a precedent that would prevent further legal action. But the decision Tuesday made it unlikely that the nation’s highest court would take up the matter because the Navy has alternatives available through the lower court.
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Good news from Michael Jasny of the Natural Resources Defense Council (NRDC). Our thanks to him and the other lawyers working on this important issue. (Thanks also to the California Coastal Commission for standing up to the Navy on this issue.)
Once again, it appears that the US courts (at least on the Left Coast) are willing to go where the Congress and Administration dare not: to protect whales and dolphins from the ear-splitting noise of Navy sonars (in this case, the use of Mid-range Frequency Sonars during training exercises in the waters off Southern California).
— Mark J. Palmer, International Marine Mammal Project, Earth Island Institute.