Federal Judge Overturns Bush Sonar Waiver

In nullifying the waiver, U.S. District Court Judge Florence-Marie Cooper reaffirmed an injunction issued early in January, requiring the Navy to reduce harm to whales and other marine mammals from sonar training. The Navy has acknowledged that the high-intensity, mid-frequency sonar at issue can injure and kill whales and other marine mammals.

Gray whales migrating off the coast of Southern California (Photo by Sue Moore courtesy NOAA)

"The Court has affirmed that we do not live under an imperial presidency," said Joel Reynolds, director of the Marine Mammal Protection Project at the Natural Resources Defense Council, NRDC, which obtained the injunction against the Navy.

"It is a bedrock principle of our government that neither the military nor the president is above the law," said Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, and co-counsel with NRDC in the lawsuit. "Judge Cooper has upheld that fundamental doctrine."

On January 15, President Bush issued the Navy an unprecedented waiver under the Coastal Zone Management Act (CZMA), and allowed the Navy an "emergency" waiver under the National Environmental Policy Act (NEPA), for a series of training exercises involving high-intensity, mid-frequency sonar now underway.

Those statutes are the basis of a January 3 injunction issued by Judge Cooper, requiring the Navy to monitor for and avoid marine mammals while operating sonar during the SOCAL naval exercises.

Today, in rejecting the Bush administration’s waiver under NEPA, Judge Cooper wrote, "The Navy's current 'emergency' is simply a creature of its own making, i.e., its failure to prepare adequate environmental documentation in a timely fashion."

The judge said the Navy's position "produces the absurd result of permitting agencies to avoid their NEPA obligations by re-characterizing ordinary, planned activities as 'emergencies' in the interests of national security, economic stability, or other long-term policy goals."

"This cannot be consistent with Congressional intent," she ruled.

In addition, although Judge Cooper expressed "significant concerns about the constitutionality of the President’s exemption of the Navy from the requirements of the Coastal Zone Management Act," she wrote that no finding on the issue is necessary because the "Court is satisfied that its injunction stands firmly on NEPA grounds."

The judge reaffirmed the January 3 injunction, which requires the Navy to maintain a 12 nautical mile no-sonar buffer zone along the California coastline; to avoid other key whale habitat; to shut down sonar when marine mammals are spotted within 2,000 meters; and to monitor for marine mammals using various methods, among other measures.

"The Navy doesn’t need to harm whales to train effectively with sonar. By following the carefully crafted measures ordered by the court, the Navy can conduct its exercises without imperiling marine mammals," Reynolds said.

NRDC was joined in the lawsuit by the International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau.

The conservation groups warn that the high-intensity mid-frequency sonar systems can blast across large areas with levels of underwater noise loud enough to have killed marine mammals in incidents around the world.

The waters off Southern California have some of the richest marine habitat in the country, and include five endangered species of whales, a globally important population of blue whales, the largest animal ever to live on Earth, and seven species of beaked whales, which are known to be particularly vulnerable to underwater sound.

U.S. Navy sonar technicians monitor contacts on their screens. (Photo Communication Specialist 2nd Class James R. Evans courtesy U.S. Navy)

Rear Adm. Larry Rice, director of the Chief of Naval Operations Environmental Readiness Division defended the Navy's use of sonar in California coastal waters. He said sonar is essential to detect new, silent submarines and added that no marine mammal incidents have occurred in Southern California waters.

"The U.S. Navy has trained in Southern California for the past 40 years and they have had zero incidents with marine mammals - no strandings, no deaths, and no documented injuries," he said.

"We want to keep that up," said Rice. "In order to accomplish this, we have 29 protective measures that we already employ. The additional training restrictions that the court levied on us frankly don't help us take care of the environment - and it restricts our training."

Rice says worldwide naval use of active sonar has been correlated with the stranding of approximately 50 whales during the 10 year period from 1996-2006.

"Contrast that with over 3,500 marine mammal 'normal' strandings that occur on U.S. shores annually, and 600,000 marine mammal deaths each year by commercial fishing interests," Rice said.

Rice attributes the U.S. Navy's "success with sonar to the fleet operators who are paying attention to what is going on in the world with marine mammals and sonar, and they realize that this is really important."

"The ocean is a noisy place," said Rice, "not only are there submarines out there, but there is wave sound, rain sounds, there are other marine mammals, there are seismic sounds, earthquakes, volcanoes — a lot of sounds in the oceans, and they have to pick out that really quiet diesel electric submarine amongst all of those other sounds. That isn't something that we can simulate."

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