Legal Battles Over US Navy’s Marine Mammal Protection Measures
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The global proliferation of advanced, ultra-quiet diesel electric submarines has prompted a number of responses around the globe, from initial-stage efforts to mimic a shark’s senses in the USA, to the most obvious route of using more powerful active sonars. In Western countries, concerns have been expressed that these sonars may disorient or scare marine mammals, leading to decompression sickness or disruption of their biological sonar navigation systems. This has led to (unsuccessful) lawsuits aimed at curtailing submarine exercises by Western navies.
In December 2007, USN Rear Adm. Lawrence S. Rice, director of Naval Operations Environmental Readiness, discussed some of the measures that are being taken to investigate the issue, and also mitigate any possible effects. In January 2008, a court battle erupted over undersea training off the coast of San Diego, CA, throwing the issue back into the limelight and potentially crippling Navy training before a dangerous deployment to the Persian Gulf. The 9th Circuit Court of Appeals’ follow-on ruling was predictable, but in November 2008, the US Supreme Court issued its ruling.
In light of that favorable ruling, a settlement has now been reached on the Navy’s terms. The Navy has just been given permission to conduct exercises near Hawaii, and this, too, is likely to end up in court, along with its planned training near Florida. Meanwhile, the US Navy continues to fund marine mammal research – which may begin to include UUVs and/or USVs…
- Sonar and Marine Mammals
- Updates and Key Events [updated]
- Additional Readings
Sonar and Marine Mammals
The central tenet of the USA’s Marine Mammal Protection Act states that no one may “take” a marine mammal without prior permission from the National Marine Fisheries Service (NMFS). “Take” includes hunt, capture, kill, or “harass” Animal rights groups have sued regulators to take a particularly strict interpretation of the harassment provision, and that effort has collateral effects beyond the US Navy. Key scientific research into whales and their behavior has been forced into extensive permit reviews that have resulted in multi-year delays, or even canceled research entirely. People have even been prosecuted under restrictive harassment provisions for trying to save marine mammals that have been stranded, or which were in danger of becoming so.
Rear Adm. Rice claims that sonar is implicated as a contributor to 50 strandings over 10 years, or 5 per year on average, vs. an average of 3,600 standings per year due to natural causes, and about 600,000 per year linked to the commercial fishing industry (!).
Over the past couple of years, the Navy spent between $10-14 million per year on research by universities and nonprofit organizations into the locations and abundance of marine mammals, physiological and behavioral effects of sonar, and protective tools the Navy can use to manage its impact. Rear Adm. Rice notes that the navy currently funds “…about 50% of marine mammal research worldwide,” and that funding is scheduled to rise to $18 million annually over the next 5 years.
The US Navy is also employing 29 new mitigation measures during sonar exercises, designed to lessen any potential impacts. These efforts have reportedly been successful in their goal, and have just been shared with NATO; a move is afoot to incorporate them into a NATO planning document. These measures include, among other things, stationing specially trained lookouts to look for marine mammals, passive acoustic monitoring for marine mammals, establishing safety zones around ships where sonar power is reduced or shut down if marine mammals are sighted, and employing extra precautions during chokepoint exercises.
Updates and Key Events
July 22/09: ITT subsidiary EDO Professional Services, Inc. in Arlington, VA received a $10.2 million indefinite-delivery/ indefinite-quantity, cost-plus-fixed-fee contract for engineering support. This 3-year contract includes 2 one-year options which would bring the cumulative value of this contract to an estimated $17.6 million. EDO will help the US Navy develop and maintain mechanical devices, electronics, and software under U.S. Navy Marine Mammal Program – including “associated unmanned vehicles, systems and equipment.”
Work will be performed in San Diego, CA (80%) and Kings Bay, GA (20%), and base year work is expected to be complete on July 21/12. This contract was competitively procured via publication on the Federal Business Opportunities website, and posting to the SPAWAR e-Commerce Central website: 9 proposals were solicited and 1 offer was received by the Space and Naval Warfare Systems Center Pacific (N66001-09-D-0032).
April 16/09: The US Navy details some of its progress in marine mammal science over the past 5 years, in return for $100 million invested. Among the accomplishments:
“Clinical research is being done there on the detection, diagnoses and treatment of diseases that can affect marine mammals. Three years into the effort, eleven marine mammal viruses have been identified, including nine that are new… an increased understanding of similarities between dolphins and people that may lead to new ways to treat debilitating human illnesses, such as diabetes.
Elsewhere, much of the Navy’s research has focused on marine mammals’ detection, behavior, hearing and response to sound… a big part of gathering information is tagging… efforts to tag sperm whales and Cuvier’s beaked whales… collected the first known evidence that toothed whales use echolocation while they dive… led to a study of beaked and pilot whales in the Bahamas… This past year, researchers placed acoustic listening tags on six whales from four species and played simulated mid-frequency sonar sounds and natural sounds.”
Jan 5/09: The National Marine Fisheries Service issues a 1-year authorization for the Us Navy to train in Hawaiian waters, so long as they use their established mitigation measures, exercise extra caution near Maui where humpback whales breed and calve, and avoid detonating explosives within certain areas.
The fisheries service said Monday plans to reissue the permit each of the next 5 years, so long as the Navy follows these measures. The US Navy must reapply to train with sonar after 2014, and of course more radical environmental groups are contemplating lawsuits. Associated Press.
Dec 27/08: US Navy:
“The Navy and several plaintiffs, including the Natural Resources Defense Council (NRDC), the International Fund for Animal Welfare, the Cetacean Society International, the League for Coastal Protection, the Ocean Futures Society, and Jean-Michel Cousteau, entered into a settlement agreement to resolve a worldwide challenge to the Navy’s testing and training with mid-frequency active sonar.
The settlement essentially adopts the long range program for environmental analysis and research that the Navy undertook in August 2005, months before this lawsuit was originally filed… The settlement agreement additionally highlights the Navy’s investment program in marine mammal research – $26 million in fiscal year 2008. As part of the settlement, the Navy has agreed over the next three fiscal years to direct $14.75 million of its research dollars to marine mammal topics of mutual interest to the Navy and the plaintiffs.”
See also: Associated Press.
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Dec 22/08: Florida battle – wrong for the right whales? In 2008, the U.S. Navy announced its intent build an undersea-warfare-training range in a 662-square-mile zone nearly 58 miles from Jacksonville, near Mayport Naval Station and its master anti-submarine warfare base at NAS Jacksonville. The range would include a network of 300 sonar sensors buried in the ocean floor, which would monitor about 470 military exercises each year.
The US Navy says that water depths and the climate make it an ideal location over 3 alternate sites. On the other hand, endangered North Atlantic Right Whales migrate south to southern Georgia and northern Florida to birth and nurse calves. This is the world’s most endangered whale. Some estimates say that only 300 remain, and the Woods Hole Oceanographic Institution says the population does not seem to be recovering.
Over 12 environmental groups are opposing the new range, but key data like the amount of overlap, if any, between the whales’ routes and the training area, the effects of sonar upon their behavior and habits, and whether it presents any hazard to whale calves, remain unknown. The Navy is hiring consultants, and undertaking its own efforts to investigate some of these questions.
The US National Marine Fisheries Service will analyze the species risk during the next few months, and final environmental reports and other federal reviews could be done by May 2009. Court cases are certainly possible beyond that, of course. If so, harm to an endangered species would weigh more heavily than the general complaint launched in California. Orlando Sentinel.
Nov 12/08: The US Supreme Court rules 6-3 for the Navy in Winter v. Natural Resources Defense Council, removing the training restrictions in the preliminary injunction. The Supreme Court expressed its view that the courts below had not given sufficient weight to the views of several top Navy officers, who stated that these measures would cripple training. The majority opinion concluded that:
“…the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy… Military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.”
Restrictions no longer in effect include a 2,200-yard shutdown zone, 11 times greater than the existing shutdown distance developed in consultation with the National Marine Fisheries Service (NMFS) and the Federal Regulator. The revised zone effectively imposed a 4.9-square mile shutdown zone around each U.S. Navy ship. The other measure involved mandatory 75% power reduction when significant surface ducting [thermal] conditions were encountered. As a previous Navy release has noted:
“The requirement to reduce sonar power by 75 percent during significant surface ducting conditions, whether or not a marine mammal is present, will prevent Navy strike groups from conducting training to detect submarines in the same conditions in which submarines seek to hide.”
Justices Ruth Bader Ginsburg and David Souter dissented from the majority, while dissenting Justice Stephen Breyer said he agreed with Roberts only in part, and would have imposed more limited restrictions on the Navy. Justice John Paul Stevens effectively joined Chief Justice Roberts on the majority outcome, without adopting the chief justice’s reasoning.
The Navy did not choose to challenge 4 other restrictions imposed by previous courts, which will remain in effect. So, too, will the Navy’s own mitigation measures during anti-submarine training with mid-frequency active sonar. US Navy release | Bloomberg News | CSM.
Feb 29/08: The US district court ruling is affirmed by the Ninth Circuit Court of Appeals. The 9th Circuit Court is somewhat infamous in the USA for issuing a large number of politicized rulings that are later overturned.
Jan 15/08: President Bush signs an exemption from the requirements of the Coastal Zone Management Act for the Navy’s continued use of mid-frequency active sonar in a series of exercises scheduled to take place off the coast of California through January 2009, on the grounds that continuing these vital exercises without the restrictions imposed by the district court is in the paramount interests of the United States. The US Navy’s 29 mitigation measures approved by federal environmental regulators when using active sonar will remain in place.
In separate but related actions, the Council on Environmental Quality approves the Navy’s request for alternative arrangements for compliance with the National Environmental Policy Act (NEPA) for these exercises until the completion of the Southern California Range Complex environmental impact statement. They include adaptive management measures, more thorough reporting procedures, and increased public participation. Secretary of the Navy Donald C. Winter signs the decision memorandum agreeing to these arrangements.
Chief of Naval Operations Adm. Gary Roughead, quoted in a US Navy story:
“We cannot in good conscience send American men and women into potential trouble spots without adequate training to defend themselves… The southern California operating area provides unique training opportunities that are vital to preparing our forces, and the planned exercises cannot be postponed without impacting national security. The steps that have been taken will allow our men and women to train realistically, while continuing the effective employment of proven mitigation measures that have been endorsed by the Council on Environmental Quality and our regulator, the National Marine Fisheries Service.”
Jan 3/08: An order is issued on by the U.S. District Court for the Central District of California, restricting US Navy sonar training in the Navy’s operating area off the coast of San Diego. Approximately half the US Navy’s fleet receives its most critical, “graduate level” training in this location before it deploys its forces around the world.
Additional Readings
- TNO – SAKAMATA: sonar and marine mammals. The Dutch military engineering and consulting firm has developed software that knows what marine mammals are found in an area, and reportedly helps plan a ramp up curve that allows marine mammals to move away before the sonar gets too loud.
- US Navy (Dec 20/07) – Navy Invests in Protecting Marine Mammals
- Woods Hole Oceanographic Institution, Oceanus Magazine (March 29/06) – Caught in the Middle of the Marine Mammal Protection Act: A law designed to protect animals sometimes hinders research that could help them. The Navy isn’t the only stakeholder affected by rulings that make the Marine Mammal Protection Act’s definition of “harassment” more restrictive, and widen its application.
