SAN FRANCISCO – In a unanimous rebuke, the Ninth Circuit court ruled Friday that the National Marine Fisheries Service (NMFS) had illegally approved a permit authorizing the Navy to use its high-intensity long-range sonar – called low-frequency active sonar (or LFA) – in more than 70 percent of the world’s oceans. Designed for submarine detection over vast expanses of deep sea, LFA has the capacity to expose thousands of square miles – and everything in it – to dangerous levels of noise.
The case against the Fisheries Service was brought by the Natural Resources Defense Council (NRDC), The Humane Society of the United States, Cetacean Society International, League for Coastal Protection, Ocean Futures Society and its President Jean-Michel Cousteau, and Michael Stocker, a bioacoustician and director of Ocean Conservation Research in California.
In its decision, the three-judge panel found that the Fisheries Service had unlawfully ignored reasonable safeguards recommended by the government’s own scientists to reduce or prevent harm from the sonar system, resulting in a “systematic underprotection of marine mammals” throughout “most of the oceans of the world.” Experts had recommended that the Fisheries Service protect the Galapagos Islands off the coast of Ecuador, the Papahanaumokuakea Marine National Monument off of Hawaii, Challenger Bank off of Bermuda, and other areas around the world important to whales, dolphins, seals, and other marine mammals. But the Fisheries Service went ahead and gave the Navy the greenlight to operate its intense sonar in the vast majority of these areas.
Among other things, the court also found that:
- Protecting marine mammal habitat from Navy sonar is “of paramount importance” under the law.
- The Fisheries Service has an independent responsibility to ensure the “least practicable impact on marine mammals” (i.e., the lowest possible level of harm)before giving the Navy – or anyone else – permission to harm these protected species; and that the Fisheries Service must err on the side of overprotection rather than underprotection.
- The Fisheries Service had given “mere lip service” to the requirement to minimize impacts during Navy sonar training.
- The law requires the Fisheries Service to mitigate harm to individual marine mammals and their habitat, rather than ignore its statutory responsibility until species as a whole are threatened.
This is the third time that NRDC has successfully challenged the government’s failure to adequately protect marine mammals from the Navy’s use of the LFA system. In the prior district court cases (2002 and 2007) plaintiffs and the Navy reached a court-ordered settlement allowing use of the system in significantly reduced areas of the world's oceans, with the promise of sufficient protections under future permits. The Fisheries Service failed to meet that promise, and the Ninth Circuit’s decision requires the agency to provide greater protections for whales and other marine mammals.
Following is a statement from Michael Jasny, director of NRDC’s Marine Mammal Protection Project:
“The Navy got a virtual blank check to operate in more than 70% of the world’s oceans, as if it were devoid of marine life. But the Court of Appeals understood that the Navy can do more to reduce the risk of its powerful long-range sonar, especially in the vast reaches of the ocean where too little is known. Ignorance is no excuse for inaction where common-sense safeguards recommended by the government's own scientists can prevent avoidable harm.”
Following is a statement from Anna Frostic, senior wildlife attorney for co-plaintiff The Humane Society of the United States:
“Exposure to sonar causes severe stress and suffering in whales and other marine mammals, disrupting essential communication, feeding, reproduction, migration and other behaviors of these vulnerable species. We applaud the court for recognizing the federal government’s legal obligations to prioritize protection of marine life as a prerequisite to employing sonar for military training.”
Following is a statement from William W. Rossiter, executive director for advocacy, science and grants, for co-plaintiff Cetacean Society International:
“Cetacean Society International is pleased with the Court's opinion, proud to have been a small part of the LFA issue since 1996, and enthusiastic about the potential for increased protection that should be afforded to marine mammals.”
Following is a statement from co-plaintiff Michael Stocker, director of Ocean Conservation Research:
“It is such an important step to have the court recognize that the ocean is an acoustic habitat as well as a living environment.”
About Low-Frequency Active Sonar
LFA sonar involves an array of 18 loudspeakers lowered several hundred feet from a ship’s hull into the ocean. Sound waves generated during one Naval test of the LFA system reached 140 decibels – an intensity more than 100 times greater than the level known to disturb gray whales – more than 300 miles from the source. An independent analysis of some of the Navy’s data indicates that, during LFA tests off the coast of California, their signals were clearly audible at sites across the entire North Pacific.
There is continuing evidence that LFA creates a risk of widespread disturbance to countless marine species and their habitat, compromising critical behaviors like breeding, nursing, and foraging.
Because a single LFA source is capable of flooding thousands of square miles of ocean with intense levels of sound, the Navy and NMFS again concede that deployment of the system around the world will harm many thousands of marine mammals, including significant numbers of endangered species such as blue whales, humpback whales, sperm whales.
Ocean noise is the subject of a recent, award-winning documentary, Sonic Sea, which is screening worldwide on the Discovery network this summer. The film was produced by NRDC and Imaginary Forces in association with the International Fund for Animal Welfare and Diamond Docs.
History of LFA Lawsuits
This lawsuit is part of NRDC’s ongoing campaign to bring the Navy’s training with LFA sonar into compliance with federal environmental law. NRDC and other plaintiffs filed suit against the Navy and NMFS in 2002 when the Navy first sought authorization for its SURTASS LFA sonar system, and again in 2007: NRDC v. Evans, 279 F.Supp.2d 1129 (N.D. Cal. 2003), and NRDC v. Gutierrez, 2008 WL 360852 (N.D. Cal. 2008). In both instances, the court granted NRDC’s motions for injunctions and the parties subsequently negotiated the terms of a Court order limiting the Navy’s use of sonar to discrete areas of the world’s oceans.
Other plaintiffs include The Humane Society of the United States, Cetacean Society International, League for Coastal Protection, Ocean Futures Society and its President Jean-Michel Cousteau, and Michael Stocker, a bioacoustician and director of Ocean Conservation Research in California. Plaintiffs are represented by attorneys from Altshuler Berzon LLP and NRDC.
- Major Victory on Low-Frequency Sonar, blog by Michael Jasny, 2016
- Groups Seek to Stop Navy from Blasting Marine Mammals with Sonar, press release, 2012
- NRDC Challenges Navy's Plan to Utilize Dangerous Sonar in More Than 70% of World's Oceans, blog by Zak Smith, 2012
- Agreement Limits Navy's Use of Low-Frequency Active Sonar, press release, 2008
- Final Settlement Agreement Outlining U.S. Navy's Use of LFA Sonar in Pacific Ocean, 2008
- Environmental Groups Sue to Stop Global Deployment of Navy Low Frequency Sonar System, press release, 2002
"But the Court of Appeals understood that the Navy can do more to reduce the risk of its powerful long-range sonar.” — NRDC’s @mdjasny— NRDC (@NRDC) July 18, 2016
About the Natural Resources Defense Council
The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than 2 million members and online activists. Since 1970, our lawyers, scientists, and other environmental specialists have worked to protect the world's natural resources, public health, and the environment. NRDC has offices in New York City, Washington, D.C., Los Angeles, San Francisco, Chicago, Bozeman, MT, and Beijing. Visit us at www.nrdc.org and follow us on Twitter @NRDC.
About The Humane Society of the United States
The Humane Society of the United States is the nation’s largest animal protection organization, rated most effective by our peers. For 60 years, we have celebrated the protection of all animals and confronted all forms of cruelty. We are the nation’s largest provider of hands-on services for animals, caring for more than 100,000 animals each year, and we prevent cruelty to millions more through our advocacy campaigns. Read more about our 60 years of transformational change for animals and people, and visit us online at humanesociety.org.
About Cetacean Society International
CSI is an all-volunteer, non-profit conservation, education and research organization working on behalf of cetaceans (whales, dolphins and porpoises) and their marine environment.
Founded locally as the Connecticut Cetacean Society in 1974, CSI took to the international scene in 1986 and emerged a global leader in cetacean advocacy, with contacts in over 20 countries today!
About Jean-Michel Cousteau’s Ocean Futures Society
The mission of Ocean Futures Society is to explore our global ocean, inspiring and educating people throughout the world to act responsibly for its protection, documenting the critical connection between humanity and nature, and celebrating the ocean's vital importance to the survival of all life on our planet. For more information, please visitwww.oceanfutures.org.
Ocean Conservation Research is focused on understanding the scope of, and exploring solutions to the growing problem of human generated noise pollution and its impact on marine animals.
We engage in marine biological and technological research based on conservation priorities. We use the products of this research to inform the policies and practice of the public, industry, and lawmakers so that we may all become better stewards of the sea.