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For Whales' Sake, Judge Halts Sonar
Published on Friday, November 1,2002 by the Los Angeles Times
For Whales' Sake, Judge Halts Sonar
Navy's worldwide use of powerful new system is banned until military and environmentalists agree on where it's not likely to hurt animals.
by Kenneth R. Weiss

A federal judge Thursday prohibited the U.S. Navy from combing the world's oceans with a powerful new sonar, ruling that the booming sounds meant to detect enemy submarines could cause irreparable harm to whales.

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The temporary injunction bans a type of low-frequency sonar that has not been conclusively linked to marine mammal mortality.

Although the ruling could allow the Navy to resume using the sonar in some places, U.S. Magistrate Elizabeth D. LaPorte imposed a worldwide ban until Navy brass and environmental experts can agree on a list of spots where sailors can deploy the sonar without harming marine life.

In her 58-page opinion, the judge, who is based in San Francisco, agreed with the Navy that even a temporary peacetime ban on the low-frequency sonar system could hamper military preparedness.

She gave the Navy and environmental groups that filed the lawsuit until Nov. 7 to report back to her with an interim solution.

The Navy and federal marine fisheries officials declined immediate comment.

But environmental groups were elated by the preliminary injunction. They had sued to overturn a Bush administration decision in July that gave the Navy permission to "harass" or injure whales in training missions using the sonar designed to search for super-quiet diesel submarines.

"There was no justification for giving the Navy a blank check to operate this sonar in 75% of the world's oceans," said Joel Reynolds, an attorney with the Natural Resources Defense Council. If allowed to continue, he said, the sonar system would have "threatened marine life on a staggering and unprecedented geographic scale."

Thursday's ruling is the latest legal victory for environmental groups trying to rein in powerful sonar and other loud sounds that science is increasingly linking to deaths and injuries of marine mammals.

The Bush administration is pushing to exempt military activities from a variety of environmental constraints. In September, a federal judge rejected arguments that sonar use in the deep ocean was exempt from the National Environmental Policy Act.

In early 2000, 16 beaked whales beached themselves in the Bahamas in a mass stranding that the Navy and other authorities have linked to bursts of midfrequency sonar. A similar mass die-off of whales occurred in September in the Canary Islands, following naval operations by warships from the United States and nearly a dozen NATO allies.

"From a scientific point of view, there is very little question that, given the right set of circumstances, active sonar can kill marine life," said Naomi Rose, a marine mammal scientist with the U.S. Humane Society.

Yet military officials point out that naval operations in the Bahamas and Canary Islands were not using the new surveillance towed array sonar system banned Thursday. That system broadcasts low-frequency sonic waves through 18 speakers dangled behind a ship on cables hundreds of feet long.

Such active sonar emits 215-decibel bursts of low-frequency waves that can "light up" enemy submarines with acoustics, much the way a floodlight can light up an intruder in a darkened backyard. These intense waves travel 300 miles through the ocean before dissipating, and so are much more effective at spotting submarines than passive listening devices.

Environmentalists argue that the frequency of the sonic waves matters less than their intensity, and that the low-frequency system spreads intensely loud sound farther than any other sonar.

The National Marine Fisheries Service decided in July that the sonar would have "negligible impact" on any marine species so long as it operated at least 12 miles from shore and was immediately shut down if sailors spotted any whales.

In permitting the sonar, the National Marine Fisheries Service granted the Navy an exemption from the Marine Mammal Protection Act to harass or injure up to 12% of any species of whales, dolphins or other marine mammals.

Environmentalists quickly sued, alleging that the federal government violated a number of federal laws designed to protect whales and endangered species.

Thursday, Judge LaPorte wrote that environmentalists were likely to win their lawsuit. She found persuasive the environmentalist argument that the fishery service's permission to harass up to 12% of marine mammals exceeds the "small numbers" allowed for harassment, injury or death under the Marine Mammal Protection Act.

The environmental groups were likely to prevail on their claim that the federal government failed to consider reasonable alternatives to a worldwide sonar deployment, she wrote. Federal officials also failed to set off-limits places in the ocean where marine mammals and endangered species are known to be particularly abundant, her ruling said.

"It is undisputed that marine mammals, many of whom depend on sensitive hearing for essential activities like finding food and mates and avoiding predators, and some of whom are endangered species, will at a minimum be harassed by the extremely loud and far traveling [low-frequency] sonar," LaPorte wrote.

The judge said she intends to modify her injunction to balance the public interest in "the survival and flourishing of marine mammals and endangered species," with "ensuring military preparedness and safety of those serving in the military from attacks by hostile submarines."

To achieve that balance, she ordered the Navy to meet with environmentalists and work out specific places acceptable to both sides.

A modified injunction, she wrote, "should be carefully tailored to reduce the risk to marine mammals and endangered species by restricting the sonar's use in additional areas that are particularly rich in marine life, while still allowing the Navy to use this technology for testing and training in a variety of oceanic conditions."

The lawsuit focuses only on peacetime training and testing of the sonar, the judge noted. Neither the injunction, nor any final ruling, will interfere with the Navy's use of low-frequency active sonar in times of war or "declared heightened threat."

Reynolds, the Natural Resources Defense Council attorney, said environmentalists will be happy to help locate places away from whale feeding, breeding and migration corridors. The lawsuit was joined by the Humane Society, the League for Coastal Protection, the Cetacean Society International and Jean-Michel Cousteau's Ocean Futures Society.

The National Marine Fisheries Service, which was sued along with the Navy, declined to comment. "This is between the Navy and the groups that filed the lawsuit," said Connie Barclay, an agency spokeswoman.

Lt. Cmdr. Pauline Storum said the Navy will have nothing to say until its attorneys have analyzed the ruling. "We are still reviewing the decision," she said.

Copyright 2002 Los Angeles Times


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