Federal Appeals Court Limits Navy Sonar Exercises Off Southern California

Court Upholds Injunction to Protect Whales, Dolphins and other Marine Life
LOS ANGELES (November 13, 2007) – A federal appeals court today ordered the U.S. Navy not to use a dangerous form of high-intensity sonar in its future training
exercises planned for the rich biological waters off Southern California until serious questions over likely harm to marine mammals can be resolved. High-intensity mid-frequency (MFA) sonar has killed marine mammals in numerous incidents around the world. The waters off Southern California have high concentrations of whales and dolphins.
A recent stay of injunction allowing the Navy to use sonar, granted in August by a motion’s panel of the same court, remains in effect until the end of the current exercise on November 22. After that date, the Navy will be enjoined from continuing with its training exercises unless it adheres to mitigation measures to be ordered by the District Court.
 “There are simple, proven ways to avoid this problem without compromising the Navy’s readiness. The court’s decision prevents the needless infliction of harm to whales and other marine species during the Navy’s training off our coast,” said
Joel Reynolds, senior attorney and director of the Marine Mammal Protection Project at the
Natural Resources Defense Council (NRDC
), which filed the lawsuit. “
We don’t train soldiers to shoot in the middle of crowded city streets
, and
the Navy shouldn’t practice hunting with sonar in California’s rich ocean habitat without the most basic precautions.”
The Navy had planned to blast high-intensity sonar repeatedly into some of the richest marine habitat in the country, including waters around the Channel Islands. Among the varied marine life found in the target area are five endangered species of whales, including a globally important population of blue whales, the largest animal ever to live on earth; and as many as seven individual species of beaked whales, which are known to be particularly vulnerable to underwater sound.
 The court of appeals ordered the District Court to impose additional mitigation on the Navy exercises, sufficient to “provide adequate safeguards for the protection of the environment.” The District Court had characterized the Navy’s existing mitigation measures as “woefully inadequate and ineffectual.”
In early August, a coalition led by NRDC won an injunction from the U.S. District Court for the Central District of California, which concluded that without adequate measures to protect marine life, the Navy’s use of high-intensity sonar during training exercises likely violates federal environmental laws. The court wrote that the injunction was necessary given the “near certainty” that the use of MFA sonar during the planned Southern California exercises would cause irreparable harm to the environment. 
In late August, a three-judge motion panel of the Ninth Circuit Court of Appeals made a split decision to stay the injunction. That stay has been reversed by today’s order.
The Navy could better protect marine mammals by adopting simple mitigation measures, but it refuses to do so. Those measures include: adopting larger safety zones to protect marine mammals close to sonar ships; avoiding key whale habitat; seasonally avoiding the grey whale migratory routes; monitoring for marine mammals thirty minutes before training begins; and reducing sonar power during times of low visibility, when whales are hard to spot.
These measures were urged on the Navy earlier this year by the California Coastal Commission, which found them necessary to bring the Navy’s exercises into compliance with California’s coastal laws. The District Court characterized the Navy’s existing mitigation measures as “woefully inadequate and ineffectual.”
“Once again, a federal court has told the Navy that it cannot act without regard to the environment and our environmental laws,” said Richard Kendall, a senior partner at the Los Angeles law firm of Irell & Manella, co-counsel with NRDC in the lawsuit. “In order to comply with federal environmental laws, the Navy should find alternative sites for its exercises and take better precautions to protect marine life.”
NRDC was joined in the lawsuit by the International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau.