National Defense Beats Whales in Sonar Case
SANTA ANA, California, September 4, 2007 (ENS) - The U.S. Navy will be permitted to proceed with underwater sonar blasts in anti-submarine warfare exercises off the coast of Southern California, although the loud sounds might hurt endangered whales, a federal appeals court ruled Friday.
A three-judge panel of the Ninth Circuit Court of Appeals suspended an August 6 injunction by a federal judge in Los Angeles that blocked the Navy from using medium frequency sonar off the Channel Islands in tests planned through January 2009 while the case is being heard in court. Three of the 14 scheduled "SOCAL" tests have already been conducted.
The Navy filed an emergency motion for stay of the injunction pending appeal, which the appeals court granted.
In the case brought by the Natural Resources Defense Council and four other groups, the lower court did not give enough consideration to the public interest in national defense, the appellate panel ruled in a 2-1 decision.
"The public does indeed have a very considerable interest in preserving our natural environment and especially relatively scarce whales. But it also has an interest in national defense," wrote Judge Andrew Kleinfeld in the majority opinion, joined by Judge Consuelo Callahan.
"We are currently engaged in war, in two countries," the judge wrote. "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. The safety of the whales must be weighed, and so must the safety of our warriors. And of our country."
"We customarily give considerable deference to the Executive Branch's judgment regarding foreign policy and national defense," he wrote.
The lower court did not explain why a broad, absolute injunction against the use of the medium frequency active sonar in these training exercises for two years was necessary to avoid irreparable harm to the environment, wrote Judge Keinfeld.
"The district court's previous approval of similar exercises subject to mitigation measures requires some explanation, which we cannot find in the order granting the injunction, for why that is no longer sufficient. Nor does the Navy explain why it no longer proposes to use these mitigation measures, a factor that militates against its probability of full success on the merits in district court."
The majority opinion points to the environmental assessment of these tests, which says that there would be no significant environmental impact if the Navy used mitigation measures such as lookouts with binoculars to scan for marine mammals, reduction of the noise when marine mammals are seen or during conditions when it is so foggy that the lookouts would not be able to see them.
"We do not suggest whether an injunction allowing the exercises but subjecting them to mitigation measures might lead to a different result, because no such injunction is before us," Kleinfeld wrote.
In his dissent, Judge Milan D. Smith, Jr. emphasized the mitigation measures. "Until very recently, the Navy employed some environmental mitigation measures it now rejects in the name of national security."
Judge Smith pointed out that the Navy is testing the same sonar technology "all over the world all the time," according to the Navy's own statement in district court, and so does not need to blast the sonar off the coast of southern California while the merits of the case are being heard.
The Navy's own environmental assessment reports that the planned SOCAL exercises may result in approximately 170,000 "takes" of marine mammals. The district court found that the tests may include "approximately 8,000 exposures powerful enough to cause a temporary threshold shift in the affected mammals' sense of hearing and an additional 466 instances of permanent injury to beaked and ziphiid whales."
"Today's ruling allows us to resume active sonar training for our carrier and expeditionary strike groups," said Navy spokesman Captain Scott Gureck. "These integrated sonar training exercises are absolutely essential for our strike groups to conduct before they deploy to the Western Pacific, the Middle East and around the world."
"The ability to detect and track potentially hostile submarines is a critical skill that cannot be duplicated in the classroom or by simulation," said Gureck.
More than 40 nations, including Iran and North Korea, deploy extremely quiet diesel-electric submarines. Active sonar is the best means the Navy has to locate them, and anti-submarine warfare is the Pacific Fleet's top war-fighting priority.
Admiral Robert Willard, commander of the U.S. Pacific Fleet, said, "The initial injunction left us in an untenable position of having strike groups needing this training and not being able to accomplish it."
The case was brought by the Natural Resources Defense Council, the International Fund for Animal Welfare, Cetacean Society Internation, the League for Coastal Protection, and the Ocean Futures Society and its president Jean-Micheal Cousteau, and the plaintiffs said they will continue to press their case.
Judge Keinfeld ordered the case to be heard as quickly as possible, writing, "Expeditious determination of this appeal can eliminate a great deal of the risk to both our country and to marine wildlife."
