The Navy’s use of high-intensity sonar has been challenged in several court cases, including three that recently came before the 9th U.S. Circuit Court of Appeals. Oral arguments for one of the cases will be made this month before the U.S. Supreme Court.
RIMPAC
The first lawsuit was filed in June 2006 over the Navy’s environmental assessment for the 2006 Rim of the Pacific (RIMPAC) naval exercises. Suing Secretary of the Navy Donald C. Winter, Secretary of Commerce Carlos M. Gutierrez, National Marine Fisheries Service administrator William Hogarth, and National Oceanic and Atmospheric Administration head Conrad C. Lautenbacher were the Natural Resources Defense Council, other environmental and conservation groups, and Jean-Michel Cousteau. They claimed that the Navy’s environmental assessment violated the National Environmental Policy Act and that the exercises would constitute a violation of the Marine Mammal Protection Act as well. The EA had been prepared for RIMPAC 2006 exercises after a mass stranding of some 200 melon-headed whales had occurred in Hanalei Bay, Kaua`i, during RIMPAC 2004.
The Navy sought to fend off the litigation by invoking the national defense exemption allowed in the MMPA. But days later, Judge Florence Marie Cooper granted a temporary restraining order based on the NEPA claim alone. The litigation was settled after the Navy agreed to beef up mitigation measures when employing mid-frequency active sonar.
SOCAL Exercises
The second was filed in March 2007 and is still being litigated. That lawsuit, brought by the Natural Resources Defense Council and several other groups against the Navy, challenges the Navy’s use of mid-frequency active sonar in undersea warfare training exercises to be conducted off the Southern California coast between February 2007 and January 2009. According to the Navy’s own estimate, the exercises would result in a total of 170,000 “takes” of marine mammals.
The plaintiffs accused the Navy of again violating NEPA, the Endangered Species Act, and the Coastal Zone Management Act and sought to ban the exercises until the violations were cured.
In August 2007, Judge Florence Marie Cooper found that the plaintiffs had a good chance of succeeding in their NEPA and CZMA claims and issued a preliminary injunction. (Unlike Judge Ezra, in the Hawai`i case, her injunction did not allow the exercises to be conducted pursuant to court-imposed mitigation measures.) At the same time, she denied the Navy’s request to stay the injunction,
The Navy appealed to a panel of the 9th Circuit, which, on August 31, granted a stay of the injunction pending a full hearing on the injunction. In November, after a hearing on the issues, the 9th Circuit Court of Appeals remanded the case back to Judge Cooper, with instructions to craft mitigation measures so that the Navy would be able to carry out its exercises in some manner.
Judge Cooper promptly revisited the issues and on January 3, 2008, she issued a revised preliminary injunction that imposed mitigation measures on the Navy. In response to Navy concerns, the injunction was again modified on January 10 – but not enough to satisfy the Navy. When Cooper did not agree to a stay of the injunction, the Navy appealed to the 9th Circuit Court of Appeals on the evening of January 15, asking it either to vacate the injunction or issue a stay.
As the Appeals Court later wrote, “The Navy’s motion was based in part on two developments that occurred on the same day that the motion was filed. First, the President of the United States … exempted from the provisions of the CZMA the Navy’s use of MFA sonar during the SOCAL exercises, finding that such use of MFA sonar is ‘essential to national security’ and in the ‘paramount interest of the United States.’ Second, the [Council on Environmental Quality], finding ‘emergency circumstances,’ purported to approve ‘alternative arrangements’ to accommodate those emergency circumstances…. It permitted the Navy to follow the prescribed arrangements to continue its exercises pending completion of the Navy’s EIS.”
Again, the case was remanded to Judge Cooper, who, on January 17, issued a partial stay pending her consideration of the Navy’s request that the injunction be vacated. But after hearing the Navy’s arguments, on February 4, Judge Cooper once more denied the request to vacate the injunction and lift the stay. Among other things, Cooper determined that the CEQ’s imposition of “alternative arrangements” was invalid, since no emergency conditions existed to allow such an action.
Two days later, the Navy appealed once more to the 9th Circuit, seeking a stay so it could proceed with exercises planned for March 2008.
By February 29, the Appeals Court judges had issued their order, refusing to overturn Judge Cooper’s injunction but at the same time, “out of an abundance of caution,” modifying in the Navy’s favor two of the injunction’s provisions that the Navy claimed could impair its readiness. On June 23, the Supreme Court agreed to hear the case in its 2008-09 term.
LFA Sonar
Another lawsuit filed by a coalition of conservation and animal welfare groups headed up by the NRDC took on the issue of the Navy’s use of low-frequency active sonar, alleging that the Navy and the National Marine Fisheries Service had improperly approved the Navy’s use of this type of sonar in up to 75 percent of the world’s oceans, violating the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Protection Act. Last February, U.S. District Judge Elizabeth Laporte of the Northern District of California found that the plaintiffs were likely to prevail on several of their charges and ordered the parties to negotiate mitigation measures. In August, the court-approved settlement was announced; it requires the Navy to adhere to mitigation measures it had agreed to years before on the use of low-frequency sonar and avoid certain specified areas, including the Papahanaumokuakea Marine National Monument and the Hawaiian Islands Humpback Whale Marine Sanctuary.
— Patricia Tummons
Volume 19, Number 4 October 2008
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