In early February 2007, the U.S. Navy announced it had prepared an environmental assessment for a two-year series of 12 undersea warfare exercises in waters around Hawai`i. The notice of the EA was accompanied by a finding that the exercises, involving the use of high-intensity mid-frequency active sonar, would have no significant impact on the environment.
That notice, published in the Federal Register of February 2, 2007, shed public light for the first time on the Navy’s planned exercises. Although the Navy has to follow the National Environmental Policy Act when it comes to disclosure of environmental impacts of its activities, and the act requires that the public be included in the process before a finding of no significant impact can be made, no such opportunity had been provided in advance of the Federal Register notice.
On January 27, 2007, the same date that the FONSI was signed, the National Marine Fisheries Service, which has jurisdiction over marine mammals, gave the Navy permission to harass, or “take,” such animals (including endangered humpback, sperm, fin, and sei whales) up to 11,299 times a year for each of the two years the exercises would run – the exact number of animals that the Navy had predicted would be affected in its EA. The Navy’s actions, NMFS determined in an accompanying biological opinion, were “not likely to jeopardize the continued existence of threatened or endangered species.”
The exercises, intended to supplement training of Navy personnel in the detection of enemy submarines, involve the use of mid-range sonar at levels believed by many scientists to cause permanent harm to marine mammals, and for periods of up to 222 hours (nearly 10 days) per exercise. Although litigation involving the use of sonar in the Navy’s Rim of the Pacific (RIMPAC) exercises had resulted in the Navy agreeing to more than two dozen conditions intended to mitigate harm to marine mammals, in the case of the Undersea Warfare Training Exercises (USWEX), no mitigation measures were included in either the NMFS biological opinion or the environmental assessment other than a meek list proposed by the Navy.
The first two exercises were conducted in April 2007. Within a few days of each exercise, dead pygmy sperm whales washed up on Hawai`i beaches – a pregnant female on Lana`i, an adult male on Maui.
On May 16, 2007, the Navy and NMFS were sued by five groups concerned with protecting marine resources – the Ocean Mammal Institute, KAHEA: The Hawaiian-Environmental Alliance, the Animal Welfare Institute, the Center for Biological Diversity, and Surfrider Foundation, Kaua`i Chapter. The groups, represented by Earthjustice attorneys Paul Achitoff and Koalani Kaulukukui, alleged that the agencies and their administrators had violated provisions of NEPA, the Endangered Species Act, the Coastal Zone Management Act, and the National Marine Sanctuaries Act. The lawsuit asked for a declaratory judgment finding that the Navy had violated the laws, vacating the NMFS biological opinion and the FONSI, and enjoining the use of high-intensity, mid-frequency active sonar during or in association with the planned exercises until the agencies were in full compliance with applicable laws.
A Rush to Cure
After a series of planning meetings and scheduling conferences, during which the Navy disclosed that its next round of USWEX was scheduled for sometime in November, the plaintiffs filed with U.S. District Judge David A. Ezra their motion for a preliminary injunction in August 2007, accompanied by statements from six of the world’s foremost experts on the subject of sonar’s impact on whales. The arguments in support of the injunction repeated and expanded on those contained in the original complaint, while the collective views of the plaintiffs’ experts challenged the claims of the Navy and NMFS that the use of mid-frequency active sonar (MFAS) had no documented effect on deep-diving whales.
In the months following the filing of the complaint, the Navy sought to cure some of the violations. In September, it released for public review and comment a new (but virtually unchanged) environmental assessment of the impacts of the undersea warfare exercises. This, the Navy claimed, made moot the allegations of non-compliance with NEPA. For its part, NMFS revised the biological opinion it had issued, tweaking it to address several errors brought to the agency’s attention by the plaintiffs’ experts, but still allowing the Navy’s planned exercises to move forward with minimal mitigation.
In an effort to address the allegations of CZMA violations, the Navy had given the state Office of Planning a “negative determination” in early August, stating that the warfare exercises would have no effect on coastal resources.
As to the claim of violating the National Marine Sanctuary Act, the Navy argued that the use of sonar in undersea warfare exercises was identified as an existing use at the time the Hawaiian Island Humpback Whale National Marine Sanctuary was established. It disputed the plaintiffs’ assertion that the pre-existing exercises did not include high-intensity mid-frequency active sonar; “the Navy has been employing the same active mid-frequency sonar technology in Hawai`i for the past 60 years,” Department of Justice attorneys representing the Navy argued in court filings.
The Navy’s response to the motion for a preliminary injunction was made on September 27, four weeks after a divided panel of the 9th U.S. Circuit Court of Appeals in California had granted the Navy’s emergency request for a stay of a preliminary injunction that had been issued in a California case with many similarities to the Hawai`i case. In the California litigation, the Natural Resources Defense Counsel and other groups had sought to prevent the Navy from undertaking two types of exercises involving the use of high-intensity sonar. The judge hearing the case had issued the injunction, which the Navy then appealed to the 9th Circuit; the motions panel concluded that while better mitigation might be appropriate, a complete ban on sonar was not. (This case, which is to be argued before the Supreme Court later this month, is discussed more fully in a separate article in this issue.)
In this context, says Achitoff, one of the plaintiffs’ attorneys, there was little chance that Judge Ezra might grant a temporary restraining order against the Navy’s planned November warfare exercises. “We were running around procedurally while the Navy tried to cure all of the defects in their environmental assessment to effectively moot the lawsuit,” he said in a telephone interview. “They wanted to change the briefing schedule, so it would accommodate the release dates for the revised EA and biological opinion, and so we went through all that. They wanted to give me two days to respond to their new briefs before the motion for injunction was heard, which was scheduled for the beginning of November.
“I resisted that. I didn’t want the date to be moved, but the way that things played out, I either had to move the hearing back, or had to respond to their briefs in too short a period of time. So I said, all right, we’ll have to move the hearing date back further into November.”
On November 16, when Judge Ezra finally conducted a conference on the injunction motion in his chambers, attorneys for the Navy announced that the November exercises had concluded that morning and that the next exercises were not scheduled to occur until sometime in the summer of 2008. “In light of these changed circumstances,” Ezra wrote in his order, “the court finds there is no longer a threat of immediate harm to plaintiffs’ interests and, as such, plaintiffs’ injunction motion is now moot.” If the Navy changed its schedule, however, Ezra would give the plaintiffs’ permission to refile their motion “on an expedited basis.”
“I knew there was a risk the exercises would occur before the injunction hearing,” Achitoff said, “but I really didn’t have a choice…. Without an injunction, they were free to do their exercises. The only alternative was to seek a temporary restraining order, and I didn’t do that because I wanted to have everything briefed fully, and I preferred not to ask Judge Ezra to issue a TRO at the last minute,” in light of the 9th Circuit Appeals Court action in the NRDC case, which ruled out a total sonar ban.
A Rush to Exercise
Within weeks of the November hearing, the Navy announced it had moved up the schedule for the next planned exercises, which now were to occur in March 2008. In response, Ezra scheduled a hearing on the motion for an injunction on February 11.
In a court session that lasted little more than an hour, Ezra announced he had prepared nine questions for the parties to address before he would make a decision on the motion. The questions ranged from how NMFS decided on a 173-decibel level as the point below which marine mammals’ behavior would not be affected, to how the sonar exercises in Hawai`i differed from those being litigated in California.
When the Navy attorney Luther Hajek was given an opportunity to make a statement, he insisted that the fact that no whale carcasses had washed ashore nor had whales been known to have recently stranded “demonstrates the fundamental weakness in [the plaintiffs’] case… The confluence of factors that have been linked to MFA sonar strandings in other places, particularly the Bahamas, do not occur during the USWEX.”
Another Navy attorney, Jay Govindan, repeated the point: “The training that the Navy conducts is not at the expense of the environment… [T]he plaintiffs really can’t rebut the fact that there has been no known impact to marine mammals ever since these mitigation measures” – measures proposed by the Navy – “have been in place.”
Achitoff responded by noting that the Navy arguments put forward “are the same arguments the Navy has been making time and again, month after month; and … every court that has heard them has rejected them…. At this point, it’s getting a little ridiculous.”
As to the lack of strandings or deaths, Achitoff replied that not all injured whales will wash ashore. Whale expert Robin Baird “pointed out in detail all the reasons why whales can be harmed or killed as a result of the sonar and not be found,” he said. “They include the presence of sharks, the fact that the carcasses sink, the fact that there are fringing reefs that prevent the bodies from wshing ashore, the fact that there’s a lot of inaccessible coastline in Hawai`i. So again, you know, the Navy hammers on the fact that, ‘well, show us the carcasses.’ That’s not the test here. It really isn’t.”
On February 29, Ezra issued an 84-page-order granting in part and denying in part the injunction that the plaintiffs had sought. It was agreed by all parties that MFA sonar “can cause injury, death, and behavioral alteration” to marine mammals, he wrote. Although “a preliminary injunction is warranted under the law, … the undeniable national security interest of having a competently trained Navy in these uncertain times strongly militates against stopping USWEX or stripping it of its usefulness.”
Rather than halt the exercises altogether, Ezra went on to impose a series of mitigation measures. They included all measures attached to a national defense exemption to the Marine Mammal Protection Act that the Secretary of Commerce gave the Navy in early 2007, and eight more. Among them:
- Powering down of sonar by 6 decibels whenever a marine mammal is spotted within 1,500 meters, or by 10 dB when a marine mammal is within 750 meters, and stopping sonar altogether when a marine mammal is spotted within 500 meters of the sonar dome.
- Monitoring for 60 minutes before the start-up of any MFA sonar and continuing to monitor while exercises are occurring. And monitoring is to include not only the use of lookouts with binoculars, but also “passive acoustic monitoring,” including the Navy’s underwater hydrophones when exercises are conducted in or near the Pacific Missile Range Facility as well as aerial monitoring.
- Powering down sonar when rapid changes in the seafloor occur (these conditions can result in a kind of underground echo chamber, exacerbating the sonar’s effect on whales), when sonar is being deployed by more than one vessel in an area, and where bathymetry, channels or other conditions conducive to “surface ducting” may multiply the undersea noise generated by the sonar.
- Gradually “ramping up” sonar, “with sound levels starting at sufficiently low levels and gradually increasing to allow marine mammals to depart the area before transmissions reach harmful levels.”
Both the plaintiffs and the Navy asked Ezra for clarification on several points, leading Ezra to revise the injunction in early March. Later that month, the Navy conducted exercises under the provisions of the revised injunction, but was unhappy with the outcome. Having to modify exercises when surface ducting conditions existed resulted in “ineffective and flawed training,” the Navy claimed in its second request for a modification to the injunction. It sought to eliminate completely any restriction related to surface ducting.
The plaintiffs responded by noting that the conditions imposed by Ezra were already weak. If the injunction were to be modified, they said, Ezra should either replace the provision the Navy objected to with the one in the original injunction (changed at the Navy’s request) or adopt a surface ducting provision that the 9th Circuit court had imposed following the Navy’s similar complaint in the California case.
Ezra denied the Navy’s request. “Defendants have presented this court with no new information… [They] did not provide the court with an alternative proposal beyond the wholesale elimination of the … condition,” he wrote. Although the training may have had an impact on the March exercises, he continued, the Navy’s “continued adherence to the uncompromising position of ‘we must train as we fight’ remains unpersuasive.”
“The Navy does not exist in a vacuum,” Ezra went on to say. “Context, whether financial, cultural, environmental or otherwise, requires the Navy and other branches of the armed services to function in such a manner as to recognize considerations in addition to those related to military preparedness. Where, as here, there is a likelihood that the Navy has not adhered to federal law, it cannot simply fall back on the training argument as a catch-all reason for avoiding its responsibilities.”
After conferring with both parties, Ezra modified his injunction for a second time, substituting the 9th Circuit’s surface ducting provisions. He also imposed a 12-nautical mile coastal exclusion provision during the Navy’s May and June exercises, except for two areas west of Kaua`i.
A Hurried Appeal
Within a week of Ezra’s second revision to the February injunction, the Navy appealed to the 9th Circuit, asking that the appellate court either vacate the injunction or remand it for further modification. In 2007, the Navy had announced it would prepare a full environmental impact statement for all the Navy’s activities in the Hawai`i Range Complex, including USWEX. By June 2008, with the EIS nearing completion (the record of decision was issued in late June), the Navy wanted essentially to moot the current litigation and have the undersea exercises conducted under the terms set in the EIS without the court’s additional mitigation measures.
Early last month, the appellate court issued its first order in the case, refusing to vacate the injunction but agreeing to remand it to Ezra for consideration of whether the injunction should be vacated or modified in light of the EIS. October 4 was the deadline set by the court for the Navy to report back, either with an update on the status and a motion for “appropriate relief,” or with a motion to supplement the Navy’s opening brief in the appeal.
According to Achitoff, if the Navy’s preparation of the Hawai`i Range Complex EIS has any effect, it still cannot moot the whole lawsuit, since the claims concern more than National Environmental Policy Act violations alone.
And, to underscore the point, in August the plaintiffs filed a motion for partial summary judgment on the allegations that the National Marine Fisheries Service violated the Endangered Species Act by issuing flawed biological opinions as to the impact of the undersea exercises. (The ESA claim, part of the original complaint, had not been included in the motion for preliminary injunction.) Because NMFS had “relied heavily on the Navy’s inadequate EAs in formulating its biological opinions,” the motion said, “the BiOps were at least as flawed as the EAs upon which they were based.”
The Next Chapter
Documents attached to the motion indicate the extent to which the Navy had planned to evade NEPA requirements and skirt Endangered Species Act requirements.
In June 2006, seven months before any notice of the USWEX environmental assessment was made public, Navy personnel were discussing how to circumvent NMFS’ concerns over impacts to marine mammals. “NMFS is holding the USWEX permit application until the Navy adds more mitigation,” a Navy staffer informed his colleagues. “Also, note the reluctance for NMFS to accept an EA/IHA [incidental harassment authorization] package – [they] seemingly want an EIS/LOA.” (Under the Marine Mammal Protection Act, an IHA, or incidental harassment authorization, permits an agency to harass marine mammals; a LOA, or letter of authorization, allows for incidental “takes,” which can include injury or death.)
And, in fact, in a letter October 5, 2006, from NMFS to the Navy, NMFS pushed the Navy to go this route. “The LOA process allows NMFS to consider the potential for incidental mortality and to authorize incidental mortality provided the activity has a negligible impact on the population or stock involved. Because mid-frequency sonar has been implicated in several marine mammal stranding events including some involving serious injury and mortality, and because there is no scientific consensus regarding the causal link between sonar and stranding events, NMFS cannot conclude with certainty the degree to which mitigation measures would eliminate or reduce the potential for serious injury or mortality. Therefore, NMFS recommends…that the Navy revise its application.…”
But when the Navy refused, NMFS backed down. The biological opinion it released to accompany the January 2007 environmental assessment for the exercises was based almost entirely on information fed it by the Navy and did not contain any independent analysis or critical review of that information. NMFS itself acknowledged this in the bi-op: “For our exposure analysis, NMFS relied solely on the results of acoustic models the U.S. Navy used.”
Making the flaws in the biological opinion even more egregious, the plaintiffs argue, is the fact that when the Navy began to prepare a more thorough EIS on all Hawai`i Range Complex activities, including the undersea execises, in the summer of 2007, it adopted a different standard to determine harm to marine mammals – one based on a dose-response calculation (where injury is proportional to the intensity of sound received by an animal) instead of the threshold calculation used in the EA (where any sound received below 173dB is deemed to have no effect). The draft EIS plainly stated that the assumptions used in the earlier EA were not supported by data.
But when the Navy hastily prepared a second EA for the undersea exercises a few months later, in an effort to make moot the NEPA issues in the lawsuit pending before Ezra, it retained the 173dB-threshold calculations of harm – and NMFS did the same in its accompanying biological opinion.
As the plaintiffs note, “although NMFS had been working on this newer methodology for many months, and although it had already been utilized in a publicly released draft EIS in July 2007 assessing MFA sonar activities, NMFS in its September 2007 revised BiOp pretended it did not exist. NMFS … was under intense pressure from the Navy to issue a biological opinion that did not interfere with the Navy’s plan to conduct its next USWEX in November 2007. Thus, when NMFS issued its revised BiOp on September 26, 2007, it retained the obsolete methodology despite knowing the newer dose-response methodology was not only more accurate, but available.”
This, the plaintiffs argue, constitutes a clear violation of the Endangered Species Act. By failing to use what it already had acknowledged was a more accurate methodology, or to consider the views of respected marine mammal experts not in the pay of the Navy, they conclude, NMFS’ actions were “arbitrary and capricious” and, as such, constitute a violation of the Endangered Species Act.
Government lawyers had not drafted a response to the most recent filing by press time. A hearing on the motion for partial summary judgment was set for 9 a.m., October 27, in the courtroom of Judge Ezra.
— Patricia Tummons
Volume 19, Number 4 October 2008
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