Court Orders Navy to Reduce Sonar Effect on Whales

Wednesday, November 14, 2007

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Court Orders Navy to Reduce Sonar Effect on Whales

From Staff and Wire Service Reports

The Ninth U.S. Circuit Court of Appeals yesterday ordered the U.S. Navy to lessen the harm its high-power sonar does to whales and other marine life during exercises off the Southern California coast.

The Ninth U.S. Circuit Court of Appeals, which heard oral arguments in the case last week, sent the matter back to U.S. District Judge Florence-Marie Cooper of the Central District of California to figure out exactly how to fix the problem it said was apparent with the sonar. The panel said an appropriately tailored injunction must be entered before the Navy’s next planned exercise in January.

Cooper last year granted a preliminary injunction against use of medium frequency active sonar during 14 exercises scheduled for 2007 through 2009. The Natural Resources Defense Council and other advocates sought the injunction, saying the sonar harms whales and other marine mammals, while government lawyers argued that the injunction would harm national security.

Medium frequency active sonar bounces a loud noise off the hulls of submarines, thus detecting their presence. The NRDC says the Navy’s sonar causes whales to beach themselves, among other environmental harms.

Cooper’s order was stayed by a motions panel of the Ninth Circuit on Aug. 31. The panel which heard the merits—Judge Stephen Reinhardt and Senior Judges Betty B. Fletcher and Dorothy W. Nelson—agreed with the motions panel that the injunction was overly broad, since there was evidence in the record that mitigation measures could be taken to bring the exercises into compliance with federal environmental laws.

But in its order yesterday, the merits panel noted that it does not have to make an “all-or-nothing” decision, as the prior panel had to do when ruling on the motion for a stay. It found that the plaintiffs met their burden of showing that they were likely to prevail on the merits and that irreparable harm will occur unless some form of injunction is entered.

“In light of the Navy’s past use of additional mitigation measures to reduce the harmful effects of its active sonar during its 2006 exercises in the Pacific Rim”—the result of a settlement in another NRDC lawsuit—“and of the district court’s longstanding involvement with this matter and its familiarity with the effectiveness and practicability of available mitigation measures, we vacate the stay and remand this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises,” the court said.

An attorney for the plaintiffs hailed the decision. “There are simple, proven ways to avoid this problem without compromising the Navy’s readiness,” Joel Reynolds, senior attorney and director of the Marine Mammal Protection Project at the NRDC, said.

The Navy maintains it already minimizes risks to marine life. It has monitored the ocean off Southern California for the 40 years it has employed sonar without seeing any whale injuries, its attorney told the court.

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