Supreme Court On Sonar: Navy Trumps Whales

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The San Francisco Chronicle

Supreme Court On Sonar: Navy Trumps Whales

Bob Egelko

A humpback whale breaches out the ocean not far from the Farallon Islands. The Gulf of the Farallones National Marine Sanctuary protects 948 square nautical miles off the California coast, just a few miles west of San Francisco. Threats to national security are more important than possible harm to whales and dolphins, the Supreme Court ruled Wednesday in lightening restrictions on the Navy's use of sonar in anti-submarine training off Southern California despite its potential effects on undersea creatures. (SFC)

WASHINGTON - Threats to national security are more
important than possible harm to whales and dolphins, the Supreme Court
ruled Wednesday in lightening restrictions on the Navy's use of sonar
in anti-submarine training off Southern California despite its
potential effects on undersea creatures.

The ruling, the first of the court's 2008-09 term, accepted the
Navy's arguments that the limitations would hinder vital exercises in
the use of sonar to detect enemy submarines. The restrictions, imposed
by lower courts, would have required the Navy to reduce or halt
underwater sonar pulses when marine mammals might be nearby.

"Forcing the Navy to deploy an inadequately trained anti-submarine
force jeopardizes the safety of the fleet," Chief Justice John Roberts
wrote in the majority opinion. The resulting damage to the Navy and the
public interest, he said, outweighs the injury that environmental
groups that challenged the use of sonar might suffer from "harm to an
unknown number of marine mammals that they study and observe."

The ruling - endorsed by six of the nine justices, and in part by a
seventh - overturned decisions by a federal judge in Los Angeles and
the Ninth U.S. Circuit Court of Appeals in San Francisco restricting
sonar use during training exercises scheduled to end next month.

The court kept its ruling relatively narrow, however, and did not
address the legality of an order by President Bush in January seeking
to remove all legal restrictions on sonar by exempting the Navy from
environmental laws. The judge in Los Angeles ruled that the order was

The case was also limited by the Navy's decision to challenge only
two of the six restrictions on sonar use that the lower courts imposed.
One unchallenged restriction, which remains in effect, bans the Navy
from using sonar within 12 miles of the coast.

"It's gratifying that the court did not accept the Navy's expansive
claims of executive power," said Richard Kendall, an attorney who
represented the Natural Resources Defense Council and other
environmental groups in seeking to maintain the restrictions.

Joel Reynolds, a lawyer with the same organization, said the ruling
would have little effect on the Navy's one remaining anti-submarine
exercise off Southern California. He also noted that the Navy is
preparing an environmental impact report for future anti-submarine
training, which he said had been the plaintiffs' main goal all along.

After 10 years of litigation, he said, "we have seen significant progress."

Navy officials declared victory.

"This case was vital to our Navy and our nation's security," said
Navy Secretary Donald Winter. "We can now continue to train our sailors
effectively, under realistic combat conditions, and certify our crews
'combat ready' while continuing to be good stewards of the marine

The Navy has used sonar for 40 years in anti-submarine training off
the Channel Islands and nearby coastal areas. Environmentalists say
scientific studies show that sonar pulses damage the hearing organs of
whales and dolphins, can interfere with their ability to navigate, mate
and find food, and have caused whales to strand themselves on shore.

The Navy says its voluntary safeguards protect marine mammals. Those
safeguards include the posting of lookouts and requirements to reduce
sonar when vulnerable creatures are nearby.

But U.S. District Judge Florence-Marie Cooper of Los Angeles said in
an August 2007 ruling that the protections were "woefully ineffectual
and inadequate" and would leave nearly 30 species at risk, including
five species of endangered whales. She also said the Navy had failed to
show that a mandatory buffer zone on sonar use and other restrictions
would disrupt training.

Cooper's injunction was modified by the appeals court to allow
commanders to reduce buffer zones at crucial times in training. The
injunction has been in effect since March, affecting several exercises
in a series that began in January 2007.

The Supreme Court said Wednesday that Cooper and the appeals court had given too little weight to the Navy's concerns.

Roberts' opinion quoted top Navy officials as saying sonar training
under realistic conditions would be hindered by the two restrictions
they challenged: a requirement that sonar be shut off whenever a marine
mammal is spotted within 2,200 yards, and a requirement to reduce sonic
pulses by 75 percent during conditions in which underwater sound
travels farther than usual.

Judges must defer to those expert assessments, the chief justice
said, especially because the Navy has conducted sonar training for four
decades "with no documented episode of harm to a marine mammal."

Dissenting Justice Ruth Bader Ginsburg, joined by Justice David
Souter, said Cooper had properly used her authority under the
environmental law after finding that unrestricted sonar use could harm
thousands of creatures. Instead of conducting an environmental study as
the law required, or asking Congress to change the law, Ginsburg said,
the Navy undermined the law with a "self-serving resort to an office in
the White House" for an exemption.

Ruling on whales and sonar

the Supreme Court voted Wednesday in a ruling loosening restrictions on
the Navy's use of sonar in anti-submarine training off the Southern
California coast:

-- Majority: Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.

-- Concurrence: Justice John Paul Stevens.

Partial dissent: Justice Stephen Breyer. He agreed with the majority
that national security concerns outweigh possible harm to whales and
dolphins from sonar use, but said buffer zones imposed by lower courts,
with exceptions for critical points in the training exercises, should
remain in place while the Navy completes an environmental study.

Dissent: Justices Ruth Bader Ginsburg and David Souter, who said the
restrictions were validly based on evidence of potential harm to
thousands of marine mammals.

The full opinions in the case, Winter vs. Natural Resources Defense Council, 07-1239, can be read at

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