U.S. Judge Blocks Navy Use of Sonar in RIMPAC War Games

LOS ANGELES, California, July 3, 2006 (ENS) - A federal judge in Los Angeles today issued a temporary restraining order blocking the use of high-intensity, mid-frequency sonar by the U.S. Navy during international RIMPAC war games now taking place in waters around Hawaii.

This type of sonar has been associated with mass strandings and deaths of whales, dolphins, and other marine species in U.S. waters and around the world.

The order by U.S. District Judge Florence-Marie Cooper in response to a lawsuit by conservation groups comes three days after the Pentagon declared the Navy exempt from the U.S. law requiring actions to avoid harm to marine mammals.

The lawsuit was filed last Wednesday, the day after the National Oceanic and Atmospheric Administration (NOAA) granted the Navy three permits to use sonar during the RIMPAC exercises.

The temporary restraining order is in effect for 10 court days from today, pending a hearing on the Order to Show Cause why a preliminary injunction should not be granted. The hearing is scheduled and the restraining order is in effect until July 18, 2006.

"We’ve requested and the court has ordered that the parties meet and confer, and we are prepared to begin that conversation immediately," said Richard Kendall, senior litigation partner at the Los Angeles law firm of Irell & Manella, which is serving as co-counsel to one of the plaintiff groups in the lawsuit.

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The crew of the guided missile cruiser USS Lake Erie bow their heads during a change of command ceremony at Pearl Harbor, Hawaii during RIMPAC 2006. USS LAKE ERIE is the U.S. Navy's Theater Wide Ballistic Missile Defense Test Ship. (Photo by Photographer's Mate 2nd Class Jason Swink courtesy U.S. Navy)
RIMPAC 2006 takes place from from June 26 through July 28, so, depending on the outcome of negotiations, 10 days remain for sonar use after the temporary restraining order expires.

In her order, Judge Cooper wrote, "Plaintiffs have submitted considerable convincing scientific evidence demonstrating that the Navy’s use of MFA sonar can kill, injure, and disturb many marine species, including marine mammals."

The restraining order "serves the public interest by ensuring the protection of endangered marine species threatened by the Navy’s proposed MFA sonar training and testing activities off the coast of Hawaii," Judge Cooper wrote.

On this basis, the court ordered that "the Navy is hereby enjoined from using mid-frequency active sonar during its Rim of the Pacific 2006 training exercise…

The conservation groups filed suit seeking the restraining order last Wednesday, saying that use of mid-frequency sonar during the Rim of the Pacific (RIMPAC) 2006 naval exercises posed an unnecessary and avoidable threat to marine mammals and violated two fundamental environmental laws - the Marine Mammal Protection Act (MMPA) and the National Environmental Policy Act (NEPA).

Before filing, the plaintiffs had tried, unsuccessfully, to work with the Navy to develop a series of common sense protective measures for use during the exercise.

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Melon-headed whales of the species that stranded on Kauai during the 2004 RIMPAC exercises. (Photo courtesy CSI)
"We are pleased, but not surprised, by the court’s emergency intervention. This ruling underscores that no one, not even the United States military, is above the law," said Joel Reynolds, a senior attorney with the plaintiff group Natural Resources Defense Council (NRDC) and director of its Marine Mammal Protection Project.

The lawsuit was brought by NRDC in conjunction with the International Fund for Animal Welfare, the Cetacean Society International, the Ocean Futures Society (OFS), and (OFS) founder and director Jean-Michel Cousteau.

The Department of Defense Friday authorized a six month national defense exemption from requirements of the Marine Mammal Protection Act for naval activity involving mid-frequency active sonar use during major training exercises and on established ranges and operating areas.

A statement by the U.S. Navy says it sought the exemption in response to the conservationists' lawsuit.

"The Navy will continue to employ stringent mitigation measures to protect marine mammals during all sonar activities, to include habitat controls, safety zones around ships, trained lookouts, extra precautions during chokepoint exercises, in coordination with National Marine Fisheries Service," said Navy Rear Adm. James Symonds, director of environmental readiness.

"The Navy has a comprehensive strategy in place to comply with the MMPA. This temporary exemption period will give us the time to work with NOAA and devote our resources to the success of our long term environmental actions which form the core of our compliance strategy," said Symonds.

The RIMPAC exercise is taking place in a 210,000 square nautical mile area near the Northwestern Hawaiian Islands Marine National Monument, created earlier this month by President George W. Bush.

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Ships sail in waters near Hawaii during the 2004 RIMPAC exercises. (Photo courtesy U.S. Navy)
During the last RIMPAC exercise in 2004, a group of more than 150 melon-headed whales stranded in Hanalei Bay on the island of Kauai following a Navy sonar exercise. A recent National Marine Fisheries Service report on the incident determined that sonar was a "plausible, if not likely" cause.

This year more than 19,000 sailors, airmen, marines, soldiers and Coast Guardsmen along with 40 surface combatant ships, six submarines, 160 tactical aircraft, and amphibious forces are participating in the exercise. RIMPAC 2006 brings together military forces from Australia, Canada, Chile, Peru, Japan, the Republic of Korea, the United Kingdom and the United States.

"Last Friday the Navy did an end run around the law protecting marine mammals, but fortunately this country has more than one law against the needless infliction of harm to endangered whales and the environment," said Reynolds. "We sincerely hope the Navy will now choose to comply."

Reynolds says the Navy has resisted conservationists' recommendations that a larger, permanent safety zone be establsined around mid-frequency sonar sources, as the Navy uses for other sonar systems.

The conservationists want the Navy to add an extra marine mammal spotter on board ships during all sonar training, reduce the sonar power level at night or at other times when spotters’ visibility is compromised, and avoid areas in or near significant marine mammal habitat, like whale breeding and feeding areas, and migratory routes.

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Porpoise found in Haro Strait, Washington after mid-frequency sonar exercises in 2003 (Photo courtesy NRDC)
Whales exposed to high-intensity mid-frequency sonar have repeatedly stranded and died on beaches around the world - including Hawaii, Washington state, North Carolina and the Bahamas - some bleeding around the brain and in the ears, with severe lesions in their organ tissue.

Marine mammals use echo-location to navigate, avoid predators, find food, care for their young. At lower intensities, mid-frequency sonar can interfere with these activities. Low-frequency sonar, which is not the subject of this lawsuit, is also disruptive to marine mammals.

There is no scientific dispute that intense sonar blasts can disturb, injure, and even kill marine mammals, the NRDC maintains. "Biologists worry that whales found dying on beaches are only the tip of an iceberg, and that many more are dying at sea," the group said.

One of the best-documented incidents took place in the Bahamas, in 2000, when 16 whales of three species stranded along 150 miles of shoreline as ships blasted the area with sonar. The U.S. Navy later acknowledged in an official report that its use of sonar was the likely cause of the stranding.