Facing Suit, Navy Declares Itself Above the Law in High-Intensity Sonar Fight

LOS ANGELES (January 23, 2007) – With the U.S. Navy in litigation aimed at stopping its illegal use of high-
intensity sonar, the Pentagon today unilaterally declared the military exempt for a period of two years from the basic law protecting whales, dolphins, and other marine mammals.   
High intensity, mid-frequency sonar is a technology that has been directly associated with mass strandings and other fatalities in marine mammals around the world. The pending lawsuit was filed by the Natural Resources Defense Council (NRDC) and other conservation groups in the fall of 2005 in Los Angeles, after the Navy ignored requests for a safe and sensible resolution of the problem.
“The move constitutes clear admission by the U.S. Navy that its current operations violate the protective standards for whales, dolphins, and other marine life under the Marine Mammal Protection Act,” said Joel Reynolds, a senior attorney at NRDC and director of its Marine Mammal Protection Project. “It’s not that the Navy can’t comply with the law; it’s that the Navy chooses not to.” 
Despite the Marine Mammal Protection Act exemption invoked today by Deputy Secretary England, the groups say the Navy is also operating in violation of the National Environmental Policy Act and the federal Endangered Species Act, and they plan to vigorously pursue the pending lawsuit regardless of today’s action.
In a three-paragraph memorandum, Deputy Defense Secretary Gordon England excused the Navy for a period of two years from any and all provisions of the Marine Mammal Protection Act (MMPA) in its use of high-intensity, mid-frequency sonar in major exercises and on its training ranges. The memo from Deputy Secretary England states that in that period, the Navy will “execute the plan coordinated with the Department of Commerce to come into full compliance with the requirements of the Marine Mammal Protection Act.”
Numerous mass strandings and mortality incidents have been associated with sonar use, including events in Hawaii, Washington State, North Carolina and the Bahamas.  Whales exposed to high-intensity sonar have been found bleeding from the eyes and ears, with lesions in their organ tissue. Biologists worry that whales found dying on beaches are only the tip of an iceberg, and that many more are dying at sea.
“Whales and other
marine mammals shouldn’t have to die for practice,” said Reynolds. “
The Navy has more than enough room in the oceans to train effectively without injuring or killing endangered whales and other marine species. Because the Navy trains with this dangerous technology in
some of the richest underwater habitat on earth, it is legally obligated to take simple, common sense steps to protect marine life.”
Just this month, the California Coastal Commission joined a long list of scientists, regulators, and other experts in concluding that the Navy’s measures are inadequate to protect marine life.  The Commission itself urged the Navy to adopt a number of additional measures in training planned for waters off the Southern California coast.
Among preventive measures that the Navy has refused to accept so far: a larger safety zone at all times around the sonar source, as the Navy uses for other sonar systems;
reducing the sonar power level at night or at other times when spotters’ visibility is compromised; and avoiding areas in or near significant marine mammal habitat like whale breeding and feeding areas and migratory routes.  
“The rule in this country has always been that no one is above the law, including the military,” said Richard Kendall, a litigation partner at the Los Angeles law firm of Irell & Manella and co-counsel for plaintiffs in the lawsuit. “We intend to continue our efforts to force the Navy to mitigate its sonar use by prosecuting the Navy’s other violations of law.”
The lawsuit was brought by NRDC in conjunction with the International Fund for Animal Welfare, the Cetacean Society International, the Ocean Futures Society, and Jean-Michel Cousteau. It was filed in the U.S. District Court for the Central District of California, in Los Angeles.