Whales, Navy clash at high court

On appeal, a panel of the Ninth US Circuit Court of Appeals upheld the injunction but modified the mitigation requirements, allowing the Navy to reduce sonar power rather than turn it off entirely when a marine mammal was spotted within 1.25 miles of a sonar source. In addition, a court-ordered 75 percent power-down requirement during certain thermal conditions would apply only when marine mammals were detected in the area.

In its appeal to the US Supreme Court, the Navy and the Bush administration are urging the justices to allow the Navy training exercises to proceed without court-imposed conditions.

The Ninth Circuit decision “conflicts with the collective judgment of Congress, the President, the nation’s top naval officers and the federal agency charged by Congress with protecting marine mammals,” writes Solicitor General Gregory Garre in the government’s brief.

Lawyers with the NRDC praise the federal judge’s actions and the Ninth Circuit’s support of those actions. “The same or similar measures as the judge required here have been utilized elsewhere by the Navy, in particular by the Atlantic Fleet,” says NRDC lawyer Joel Reynolds. “But the Navy, for whatever reason, has chosen not to adopt measures like these off southern California.”

The sides disagree on the scope of the potential environmental problem. The Navy predicted 170,000 instances of a marine mammal being harassed, injured, or killed through sonar contact, including 548 permanent injuries for beaked whales, according to the NRDC’s brief.

But the government now disputes these estimates. “There have been no observed or documented incidents of injury or death to marine mammals resulting from MFA-sonar exposure [in this area] in the past 40 years,” Mr. Garre says.

Mr. Reynolds says such claims are meaningless. “The Navy simply wasn’t looking,” he says. “Strandings have occurred, but nobody has been able to identify a source.”

Scientists are beginning to piece together correlations between the often top-secret use of military sonars and mass whale strandings, says Chris Parsons, a marine biology professor at George Mason University and a delegate to the International Whaling Commission.

“Now people are starting to look into it and are seeing more of these strandings related to military activities,” Professor Parsons says. Strandings have been observed near military training in the US Virgin Islands, Greece, Japan, Spain, and the Canary Islands, as well as off Hawaii, Washington State, and Alaska, among other areas, according to the NRDC.

Reynolds says the Navy should find a different location to train. “We are not questioning their judgment that mid-frequency sonar training is necessary,” he says. “Our concern is simply that when they do it, they use common-sense safeguards to reduce the risk.”

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