Everett, Wash.
Published: Thursday, January 17, 2008

Legal battle brewing over Navy's sonar use

By Noaki Schwartz
Associated Press

 LOS ANGELES -- Conservationists vowed to return to court to challenge President Bush's decision to let the Navy continue using high-power sonar in its training off Southern California, a practice they say harms whales and other marine mammals.

The president's decision to exempt the Navy from an environmental law will not by itself allow the anti-submarine warfare training to go forward, because an injunction remains in place. But the Navy believes it will significantly strengthen its argument in court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco had been expected to rule on the future of the Navy exercises on Friday. But after Bush's decision, the appeals court on Wednesday sent the issue back to the U.S. District Court in Los Angeles to consider. The Navy asked the court for a decision by 4 p.m. Thursday.

Scientists say loud sonar can damage marine mammal brains and ears. It may also mask the echoes some whales and dolphins listen for when they use their own natural sonar to locate food.

But much is still unknown about how sonar affects whales and other marine mammals. For example, the sound can hurt some species while not affecting others, and experts don't fully understand why.

The White House announced Wednesday that Bush signed the exemption a day earlier while traveling in the Middle East. In his memorandum, Bush said the Navy training exercises "are in the paramount interest of the United States" and its national security.

Peter Douglas, executive director of the California Coastal Commission, which joined in the lawsuit to provide the mammals greater protections from sonar, called the exemption unprecedented in California.

"I'm not surprised at all," he said. "It's typical for this Republican administration to ignore environmental protections under the banner of fear."

Attorneys for the Natural Resources Defense Council, which has been fighting the Navy's sonar training, said the group would file papers with the District Court to challenge Bush's exemption.

"The president's action is an attack on the rule of law," said Joel Reynolds, director of the council's Marine Mammal Protection Project. "By exempting the Navy from basic safeguards under both federal and state law, the president is flouting the will of Congress, the decision of the California Coastal Commission and a ruling by the federal court."

A federal judge in Los Angeles issued a preliminary injunction this month requiring the Navy to create a 12-nautical-mile, no-sonar zone along the Southern California coast and to post trained lookouts to watch for marine mammals before and during exercises. The order required that sonar be shut down when mammals were spotted within 2,200 yards.

The court found that using mid-frequency active sonar violated the Coastal Zone Management Act, and Bush exempted the Navy from a section of that act. Complying with the environmental law would "undermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of carrier and expeditionary strike groups," Bush said.

The Navy says the exercises are vital and that it works to minimizes the risk to marine life.

A statement from the Defense Department said that the new exemption covers the use of mid-frequency active sonar in a series of exercises scheduled to take place off California through January 2009 and that the Navy already applies 29 measures to mitigate the effects.

In a separate development, the Pentagon statement said Navy Secretary Donald Winter signed a memo Tuesday agreeing to greater public participation and better reporting on the issue while officials complete an environmental impact study for Southern California.

Use of sonar "is part of critical, integrated training that must be done in the Navy's operating area off the coast of San Diego to take advantage" of features there related to water depth, as well as extensive ranges, airfields and other infrastructure needed for training, the statement said.

About half the Navy's fleet will receive "its most critical, graduate level training" there before it deploys its forces around the world, it said.

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Associated Presss Erica Werner and Pauline Jelinek in Washington contributed to this report.
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