Tuesday, June 24, 2008
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High Court to Review Ninth Circuit Ruling on Navy’s Sonar Use
From Staff and Wire Service Reports
The U.S. Supreme Court yesterday agreed to decide whether the U.S. Navy is required to take action to lessen the harm its high-power sonar does to whales and other marine life during exercises off the Southern California coast.
The court, without comment, agreed to review a Ninth U.S. Circuit Court of Appeals ruling directing the issuance of an injunction sought by the Natural Resources Defense Council and other advocates.
The Ninth Circuit last year directed 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 directed that an appropriately tailored injunction be entered prior to further exercises.
Preliminary Injunction
In 2006, Cooper granted a preliminary injunction against use of medium frequency active sonar during 14 exercises scheduled for 2007 through 2009. The NRDC and other plaintiffs contended 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 of last year. 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.
The merits panel, however, found that the plaintiffs met their burden of showing that they were likely to prevail on the merits and that irreparable harm would 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.
Bush’s Waiver
As redrawn earlier this year, the injunction created a 12-nautical-mile no-sonar zone along the coast and requires the Navy to shut off all sonar use within 2,200 yards of a marine mammal. That prompted President Bush to step in and sign a waiver exempting the Navy from a section of the Coastal Zone Management Act so training could continue as the government appealed the decision.
The Ninth Circuit sided with the lower court and said the Navy must abide by the injunction. However, while the litigation was under way the appeals court gave the Navy leeway to lessen the restrictions if it determined it was in a critical maneuver point, so that sonar shutdown would begin at 1,000 meters (about 1,093 yards) and full sonar shutdown would come at 200 meters (about 219 yards). Those are the restrictions the Navy is currently operating under.
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 attorneys told the courts.
Navy’s Argument
Enjoining the exercises, however, jeopardizes the Navy’s ability to train sailors and Marines for service in wartime, it argues. The government also says national security interests can trump those of marine mammals, and that its use of mid-frequency sonar in training exercises hasn’t caused any documented harm to dolphins or beaked whales.
The Navy applauded the high court’s intervention.
“The Navy’s position has been the same since the first court case. This is an issue that is essential to national security and we welcome the Supreme Court’s decision to hear the case,” said Admiral Larry Rice, the director of the Chief of Naval Operations’ Environmental Readiness Division.
Rice said the restrictions placed on the Navy in earlier court rulings, if not overturned, could cripple training exercises.
The NRDC contends there are ways to use sonar and to protect wildlife.
“It’s clear ... that the Navy can reduce the risk of this harm by commonsense safeguards without compromising our military readiness,” Joel Reynolds, director of NRDC’s Marine Mammal program, said in a statement.
Some environmentalists said the Supreme Court’s hearing of the case will finally settle what takes precedence — national security or environmental protection.
“This will decide whether or not the Navy is fulfilling its security goals in a way that doesn’t leave massive collateral damage,” said William Rossiter, president of Cetacean Society International, one of the plaintiffs in the case.
Arguments will take place in the next court term, beginning in October.
The case is Winter v. Natural Resources Defense Council, 07-1239.
Copyright 2008, Metropolitan News Company