Ban on Naval Exercises Harms National Security, Lawyer Tells Ninth Circuit

Friday, November 9, 2007

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Ban on Naval Exercises Harms National Security, Lawyer Tells Ninth Circuit

By a MetNews Staff Writer

A federal injunction barring the Navy from using medium frequency active sonar during anti-submarine warfare exercises off the Southern California coast should be overturned because of the importance of the exercises to national defense, a government lawyer told the Ninth U.S. Circuit Court of Appeals yesterday.

The order by U.S. District Judge Florence-Marie Cooper, acting in a suit by the Natural Resources Defense Council and other advocates who say the sonar harms whales and other marine mammals, has “profound impacts on national security and the Navy’s effectiveness,” Allen M. Brabender told the court.

Cooper preliminarily enjoined the Navy from using the sonar during 14 exercises scheduled for 2007 through 2009, but her order was stayed by a motions panel of the Ninth Circuit on Aug. 31. Depending on how quickly the three judges who heard yesterday’s case—Judge Stephen Reinhardt and Senior Judges Betty B. Fletcher and Dorothy W. Nelson—rule, up to nine more exercises could be affected, Brabender said.

Medium frequency active sonar bounces a loud noise off the hulls of submarines, thus detecting their presence. Citing evidence of potential harms to marine mammals resulting from the noise, Cooper ruled that the Navy had failed to conduct sufficient environmental reviews to justify use of the sonar, as required by the National Environmental Policy Act and the Coastal Zone Management Act.

Brabender argued that the court is now bound by the merits panel’s conclusion that the district judge failed to balance environmental interests against those of national security, a position that did not sit well with Fletcher and Reinhardt.

The motions panel’s ruling is of no moment once the merits panel “issues our decision,” Reinhardt insisted. Fletcher, noting that she had just finished a month of duty on a motions panel that had considered more than 300 different matters, suggested that a ruling on a motion represents “our best guess at the moment,” and is not equivalent to the full consideration given by the merits panel.

Brabender said that was not the case here, noting that the opinions from the motions panel, including a partial dissent, ran to 25 pages. That led to a brief exchange with Reinhardt, causing Fletcher to intervene and suggest to Brabender that he’d “better stick to the merits,” to which he returned after breathing a sigh of relief.

Brabender argued that Cooper’s “factfinding was purely erroneous,” and there was no evidence that marine mammals had been harmed by sonar in the 40 years that exercises of this type have been conducted, and that the injunction was an extraordinary and unnecessary remedy. “The public interest does not require enjoining essential military activities,” he told the panel.

But Richard Kendall of Irell & Manella, arguing for the NRDC and other plaintiffs, cited government reports suggesting that the Navy’s use of sonar may have harmed marine life in the past, even if the Navy didn’t observe it. He added that by law, it is “the potential for future harm, not the existence of past harm,” that the court must look to.

“We do not oppose training,” Kendall told the judges. “We oppose careless training....We oppose training without the environmental impact analysis that the law requires.”

The case is Natural Resources Defense Council v. Winter, 07-56157.