Court Grants Stay of Injunction in Navy Sonar Case

Natural Resources Defense Council v. Winter, 2007 WL 3377229 (9th Cir. Nov. 13, 2007).

The views expressed herein are those of the author and do not necessarily reflect the views of the Sea Grant Law Center, NOAA, or any of its sub agencies.

Since the 1960s, marine mammal stranding events have been documented. There has been evidence that these events have been linked to underwater sonar testing. The first major stranding event to be recorded was in the Bahamas in March 2000. This event coincided with the Navy’s use of mid-frequency sonar in the area at the time.1 Even more recently, thirty-seven whales were stranded off the coast of North Carolina where Naval use of sonar was identified as the probable cause.2
The National Resources Defense Council (NRDC), bolstered by its success in a previous suit against the Navy’s use of low-frequency sonar, recently filed suit against the Navy once again for its use of mid-frequency sonar.3 The ensuing battle between the Navy and the NRDC is based on the Navy’s plan to use mid-frequency sonar in fourteen large-scale training exercises off the coast of Southern California between February 2007 and January 2009.4 The Navy’s Environmental Assessment states that the exercises will result in an estimated 170,000 “takes,” which can include the harassment, harm, and killing of these creatures.5
In this case, the NRDC filed for an injunction to prohibit the Navy’s use of sonar. In August 2007, the U.S. District Court for the Central District of California granted an injunction; however, less than a month later, the Ninth Circuit Court of Appeals reversed this decision and stayed the injunction. In November 2007, the Ninth Circuit Court of Appeals, upon hearing the case, reinstated the blanket injunction on sonar testing until the Navy adheres to the mitigating factors prescribed by the district court. As a result, marine mammals have been spared from the full exposure of the Navy’s sonar use.

Background
Navy sonar, though not the only cause of noise pollution in the water, is a major one. Mid-frequency sonar is emitted into the water column at a pressure of 235+ decibels for about 0.5 – 2 seconds repeated every 28 seconds.6 The Navy’s Environmental Assessment defines its use of mid-frequency sonar as “Level B” harassment which means that the marine mammals will be “subjected to sound levels of between 170 and 195 decibels.”7 However, the intensity of Level B harassment is difficult to predict given the only comparative test at levels of 235 decibels and greater. The Occupational Safety and Health Administration (OSHA) requires hearing protection to be used where workers are exposed to sounds at “90dB for eight hours or 110dB for as little as thirty minutes.”8 Given that the sound of a rocket taking off is 235 decibels, it is not unreasonable to assume that the use of mid-frequency sonar is potentially disruptive to marine mammals’ health and way of life.9
Scientists have been looking for a definite link between strandings and sonar. One group of scientists, for example, cited a correlation between low-frequency sonar testing and one major stranding event.10 These mass-stranding events are just one of the many alleged effects that sonar has had on marine mammals, others include: embolisms, gross damage to the auditory system, hearing loss, interruption in feeding, breeding and nursing, displacement from habitat, and degradation of habitat.11 Prior to the NRDC litigation, the Navy had been employing mitigation measures to prevent such effects; however, it recently eliminated many of these practices. The district court references the abandonment of such measures as “power-downs” in conditions where sound travels greater distances, within the “twelve nautical mile coastal buffer zone,” and “protection measures” during checkpoint exercises.12

The Ninth Circuit’s Decisions
In August 2007, the Ninth Circuit Court of Appeals took a look at the balance of harms between the two parties when deciding whether to sustain the lower court’s injunction in favor of the NRDC. The court concluded that the district court did not properly balance the harms because it failed to give proper consideration to the public interest.13 The Ninth Circuit suggested that national defense could be a higher priority than the safety of whales. Specifically, the court stated “[t]he public does indeed have a very considerable interest in preserving our natural environment and especially relatively scarce whales. But it also has an interest in national defense . . . The safety of the whales must be weighed, and so much the safety of our warriors. And of our country.”14
Furthermore, the court stated that this is an issue where deference should be given, because it is a matter of national security.15 The majority sided with the Navy based on the premise that there is no other feasible place that this testing could be done, because there is nothing on the record that would suggest a feasible alternative at this time.16 However, both the majority and the dissent urged the expedient resolution to this case in order to “eliminate a great deal of risk to both our country and to marine wildlife.”17 This goal of eliminating risk to national security and wildlife was evident when the Ninth Circuit handed down its decision on November 13, 2007. The decision enjoins the Navy from continuing with its training exercises unless it adheres to the mitigation measures ordered by the district court. However, if the district court fails to order these measures the stay of the injunction can become effective once again.18

Conclusion
The issue can be reduced simply: national security versus the environment. The U.S. Navy touts its commitment to “maintaining the balance between defending freedom and remaining good stewards of the environment” but is resistant to implementing measures that would significantly mitigate the harm caused by its actions.19 The courts are tacitly allowing the Navy to fulfill its role as both steward and defender. The Navy has spent millions of dollars in research on this issue and can point to measures taken to help the animals; hopefully, this, in addition to the court-imposed mitigation measures, means that marine mammals will not suffer the consequences when testing resumes.
Looking to the future, there is a prospect of more litigation if the Navy does not use mitigation measures. The Navy has set its sights on a testing ground near the coast of North Carolina, already the site of a stranding event of thirty-seven whales linked to Naval activity. Suspicion arose because of the proximity of the stranding, both spatially and temporally, to the naval testing and the absence of other factors that could have caused it.20 Hopefully the Navy will learn from the past two lawsuits and implement mitigation measures that are applicable to this area from the start instead of burdening the courts with yet another suit.

Update
On remand, the United States District Court for the Central District of California issued an order limiting the Navy’s sonar training exercises off the coast of Southern California. The order limits the use of medium-range sonar to an area beyond 12 nautical miles from shore and requires monitoring to detect the presence of marine mammals before and during the exercises.

Endnotes
1.   Jasny, Michael, et al. Sounding the Depths II: The Rising Toll of Sonar, Shipping and Industrial Ocean Noise on Marine Life. Natural Resources Defense Council. Nov. 2005. http://www.nrdc.org/wildlife/ marine/
      sound/ sound.pdf . pg. 8-9.
2.   NRDC Press Release: Government Report on Mass Whale Stranding in N.C. Identifies Naval Sonar as Possible Cause. March 29, 2006. http://www.nrdc.org/media/pressreleases/060329a.asp .
3.   NRDC: Protecting Whales from Dangerous Sonar.
      www.nrdc.org/wildlife/marine/sonar.asp .
4.   Natural Resources Defense Council, Inc. v. Winter. Unreported in F.Supp.2d, at 1. 2007 WL 2481037 (C.D.Cal., August 7, 2007).
5.   Id.
6.   Jasny, supra note 1, pg. 3.
7.   NRDC, 2007 WL 2481037 at *1.
8.   Id.
9.   Ocean Noise Affects Marine Life, Envi ron ment, 44 (5):4 (2002).
10. A. Frantzis, Does Acoustic Testing Strand Whales? Nature, 392, (6671):29 (1998).
11. Jasny, supra note 1, pg. 7.
12. NRDC, 2007 WL 2481037.
13. Natural Resources Defense Council v. Winter. 502 F.3d 859, 863 (9th Cir. Aug. 31, 2007).
14. Id. at 863-864.
15. Id. at 862.
16. Id. at 864.
17. Id. at 865.
18. Natural Resources Defense Council v. Winter. 2007 WL 3377229 at *4-5 (9th Cir. Nov. 13, 2007).
19. U.S. Navy Website: Whales and Sonar.
   http://www.whalesandsonar.navy.mil/index.htm .
20. NRDC Press Release, supra note 2.