The latest chapter, this time in the federal appeals court. In short, another win for the whales. The next chapter may be in the U.S. Supreme Court:
Appellate panel backs a lower court decision but allows a 30-day reprieve from the toughest rules so sonar training can go forward.
By Kenneth R. Weiss, Los Angeles Times Staff Writer
4:18 PM PST, March 1, 2008
A federal appeals court has rejected the Bush administration effort to exempt Navy sonar training from key environmental laws, backing up a lower court that imposed extensive safeguards to protect whales and dolphins from harmful sonic blasts.
Even so, the U.S. 9th Circuit Court of Appeals gave the Navy a 30-day reprieve from the most far-reaching protections -- such as shutting down sonar when whales are spotted within 2,200 yards -- so it could conduct a pair of training missions this month off Southern California and to give it time to appeal to the U.S. Supreme Court.
"The Navy is carefully considering additional review, including possible review by the Supreme Court," Lt. Cmdr. Cindy Moore said Saturday. Once the monthlong reprieve ends, the Navy spokeswoman said, the ruling "leaves in place significant restrictions on our ability to train realistically."
The decision, released late Friday night, is the latest in a string of legal defeats for the Navy in Los Angeles and Hawaii as it tries to avoid court-ordered restraints on how it trains sailors to hunt for submarines with a type of sonar that has been linked to the death of whales and dolphins.
The cases pit the interests of national security and troop readiness against the enforcement of environmental laws and the safeguarding of federally protected marine mammals.
The case in Los Angeles has taken on additional overtones of a constitutional struggle between the judicial and administrative branches of government.
After losing repeatedly in court, the Navy persuaded President Bush and the White House to exempt its Southern California training missions from the environmental laws that underlie the case.
Calling it "constitutionally suspect," U.S. District Judge Florence-Marie Cooper in Los Angeles rebuffed this legal maneuvering and concluded that the Navy's long-planned schedule for eight more training missions this year did not warrant "emergency" arrangements invoked by the White House to get around the law.
The appeals court late Friday backed up Cooper's decision, ruling that she "carefully balanced the significant interests and hardships at stake to ensure that the Navy could continue to train without causing undue harm to the environment."
A three-judge panel said it reviewed "with the utmost care" the classified affidavits submitted by various admirals about how the training exercises are needed to certify a sufficient number of aircraft carrier strike groups as ready for battle in the Persian Gulf and other hot spots.
But the panel said the evidence in the case, much of it submitted by the Navy itself, supports Cooper's conclusion that the additional precautions to avoid marine mammals "will not likely compromise the Navy's ability to effectively train and certify its West Coast strike groups."
Joel Reynolds, an attorney with the Natural Resources Defense Council, said the decision was the first major victory in the appeals court on these sonar cases. "The court is saying that the Navy cannot violate the law with impunity and the president cannot waive it. When the Navy tests and trains with sonar, it can and must do so in an environmentally responsible way," he said.
Added Richard Kendall, another lawyer representing conservation groups in the case, "We proved, based on the Navy's own records, that it is able to train and obey the environmental laws at the same time."
The Navy maintains that its own well-established protocols, such as posting lookouts on deck and reducing the intensity of sonar power when whales are seen swimming too close, provide sufficient protection.
Navy officials said there is no evidence of a fatality of whale or dolphin associated with sonar training missions off Southern California.
After the last training in January, a northern right whale dolphin washed up on Navy-owned San Nicolas Island with blood in its ears -- a symptom seen in the fatalities of deep-diving whales that washed ashore in the Canary Islands and the Bahamas after military sonar exercises.
Researchers have yet to determine a cause of death for the dolphin. The most recently completed tests have ruled out poisoning from algae-produced neurotoxins such as domoic acid, according to Teri Rowles, head of the nation's Marine Mammal Health and Stranding Response Program.
The Navy also says the court order that expands the Navy's marine mammal safety zone of 220 yards to 2,200 yards would disrupt exercises to track quiet diesel submarines, because Navy commanders would have to shut off sonar five times as often.
The appeals court, in its 108-page opinion, conducted an extensive analysis of the Navy's math, suggesting that it had been exaggerated.
Reviewing Navy reports of the previous six sonar training exercises, it found that the Navy had to shut down the sonar 27 times and that the expanded safety zone would have required an additional 21 shutdowns, or two to three additional shutdowns per exercise. Such exercises last a week or more.
The opinion noted that the Navy has accepted the 2,200-yard safety zone in other sonar exercises, as do NATO warships. The Australian Navy's safety zone is 4,400 yards.
Still, the judges gave Navy commanders this month to fall back on the 220-yard safety zone if a whale shows up during a critical point in the training exercise.
