August 4, 2016 – First: the 9th Circuit Court’s does not mean the Navy is stopping its use of sonar. The Navy has publicly said the ruling has “no impact” on its current activities. It means the case, argued on fairly narrow but powerful terms, is going back to trial in the lower court. However significant this decision is for the protection of marine mammals, it is not a done deal yet and we will cautiously wait to celebrate until after the trial. WCAA has no information on the new trial. But we applaud the Natural Resources Defense Council’s astuteness and unwillingness to back down.
Here’s what happened: On July 15, 2016, the 9th Circuit Court granted an appeal filed by the Natural Resources Defense Council that reversed a lower court decision upholding NOAA’s 2012 approval for the Navy to use low-frequency sonar for training, testing and routine operations. Specifically, this case was about the Navy’s towed low-frequency sonar array, which is so powerful that there are only 4 ships doing it, in 4 separate oceans. It’s for surveillance, and each sonar blast is at least 215 decibels and lasts for sixty seconds. It’s low-frequency so the noise travels for thousands of miles. Guess what animals are low-frequency hearers? Whales. The court did not address the Navy’s other sonar use in this decision, but it did make a distinction between peacetime and wartime use, in effect saying to NMFS, the law says you have to mitigate in peacetime, and you didn’t.
The effect of blasting so many of Earth’s oceans with this much surveillance sonar all the time would be like blindfolding every one of you and saying ‘Now go find food, avoid getting hit by cars, try to stay with your family, and by the way, here’s a big headache for you that will last forever.’
The Court found that NOAA’s National Marine Fisheries Service (NMFS) had acted in an “arbitrary and capricious” manner by ignoring habitat requirements for mitigation under the law. In other words, they were supposed to have done a lot more than they did to help the animals whose welfare they oversee. By their actions (or lack thereof) NMFS and the Navy were in effect saying an animal that needs to hear to find food can survive just fine with impaired hearing and without a protected place in which to find it. This has been proven wrong again and again in the courts over decades. You would think NMFS might do everything it can for whales, given the other stresses they are under (climate change, ship strikes, pollution, etc.)
The Court found that NMFS violated the Marine Mammal Protection Act’s “least practicable adverse impact” standard when they eliminated 70 percent of candidate Offshore Biologically Important Areas from consideration. It’s well known that not enough data exist for these offshore areas, so NOAA scientists wrote a white paper saying that specific areas of the ocean should be protected anyway, even if we don’t have the data, because what we do have shows they are important. NMFS could have listened to its scientists, but instead it chose to eliminate the potential Offshore Biologically Important Areas that didn’t have enough data, from consideration. This was of course to the Navy’s benefit. NMFS used the rationale that “no data means it’s unimportant.” They ignored their own scientists, and in fact the white paper was never factored into NMFS’ decision to grant the Navy its permit until after the fact, when someone “discovered” it.
Finally, the Court found that there is a bias toward establishing Offshore Biologically Protected Areas in the US over other countries, and that “unless an area is within 12 miles of the coast or designated as an Offshore Biologically Important Area, there is minimal mitigation of Level B harassment.” Meaning, too many places where marine mammals migrate are not protected and the Navy can blast away at will.
The case has been remanded back to the lower court for trial. In the meantime, the Navy has responded that this decision will have no impact on its current activities.
But it’s not just whales being harmed. According to a 2012 complaint filed by Earthjustice and the Natural Resources Defense Council, “High-intensity sound has been shown to reduce the viability of fish eggs and to cause developmental damage in young fish. Intense sound can kill eggs, larvae, and fry outright or retard their growth in ways that may hinder their survival later. It has also been shown to injure the ears and lateral lines necessary for hearing in adult fish. Intense sound may also have harmful resonance impacts on fish with swim bladders, particularly larger pelagic fish such as tuna. Because fish rely on hearing to locate prey and avoid predators, affects to their hearing both impair their ability to find food and increase their vulnerability to predation.”
We will post more on this subject. In the meantime, we should all consider this a big, but conditional, win for the whales.