War of the Whales (47 page)

WHALES’ DEATHS LINKED TO NAVY’S SONAR TESTS

December 31, 2001: Washington, DC

The mysterious mass stranding of 16 whales in the Bahamas in March 2000 was caused by U.S. Navy tests in which intense underwater sounds were generated for 16 hours, according to a newly released government report compiled by civilian and military scientists.

The report’s conclusions mark the first time that underwater noise other than from an explosion has been shown to cause fatal trauma in marine mammals. The military’s acknowledgment of responsibility also marks a sharp departure from earlier statements by the Navy, which had denied responsibility for the Bahamian beachings and other mass strandings of marine mammals that coincided with sonar exercises.

Experts said the study—which relied on an elaborate airlift of frozen whale heads from the Bahamas to a Harvard Medical School X-ray facility—places the Navy on notice that it will have to balance more carefully its need to conduct underwater sonar tests against the need to protect marine mammals. The report, approved by Navy Secretary Gordon R. England, concludes that the Navy should “put into place mitigation measures that will protect animals to the maximum extent practical” during peacetime training and research efforts.

But the report also allows for the suspension of such protections in the interest of “national security,” a broad exemption that has yet to be defined in practice. And it does not answer the contentious question of whether marine wildlife may also be imperiled by a different kind of sonar test proposed by the Navy, one that would involve much lower-frequency sound waves in the ocean. . . .

The cause of death in the Bahamian strandings may have remained unsettled had it not been for Ken Balcomb, who with his wife, Diane Claridge, ran the
Bahamas Marine Mammal Survey
on the Bahamian island of Abaco. . . .

“There’s no question that these tactical midrange sonars were the sound source that caused the trauma,” said Roger Gentry, who heads the acoustical research team for the National Marine Fisheries Service, an agency of the National Oceanic and Atmospheric Administration.

Navy spokesman Patrick McNally said the Navy believes that the injuries were caused by the unique characteristics of Bahamian underwater topography and other factors, and that similar tests may still be appropriate in other waters. Meanwhile, the Navy is instituting new policies to prevent such injuries, he said, and will increase funding of marine mammal research to $9 million in the coming year.

It was the final line of the article that jumped out at Reynolds:

The Navy is expected to get federal permission to conduct tests of a low-frequency sonar system early next year—permission that environmental groups have promised to fight.

As one of the environmentalists who had “promised to fight” the Navy’s low-frequency sonar systems, Reynolds had no trouble reading between the lines of the Navy spokesman’s remarks. “The Navy believes that the injuries were caused by the unique characteristics of Bahamian underwater topography” was the Navy’s way of trying to put the Bahamas stranding into an “act of God” category that would never recur. “Similar tests may still be appropriate in other waters” was code for “We intend to continue to conduct training exercises where and when we see fit.”

For Reynolds, it was the worst possible time to consider filing a lawsuit against the US Navy. No matter how incriminating the interim report might appear, he knew that the recently transformed political landscape had strengthened the Navy’s hand immeasurably. Three months earlier, immediately following the 9/11 attacks, President George W. Bush had launched the war on terror. American armed forces were deployed across Afghanistan and the Persian Gulf, and every American embassy and military base around the world was on high alert. In October the US Senate had voted 98–1 to pass the Patriot Act—an acronym for Providing Appropriate Tools Required to Intercept and Obstruct Terrorism—which dramatically expanded the government’s power to gather intelligence abroad and at home.

To a degree that Reynolds had never witnessed in his lifetime, American citizens were united by fraught bonds of fear, anger, and patriotism. American flags were on display everywhere, and “America the Beautiful” became the new national anthem, kicking off every NFL football game. For the first time since World War II, the vast majority of Americans embraced a foreign war and the soldiers and sailors fighting overseas. In deference to the prevalent patriotic mood, NRDC—and virtually every other advocacy organization—had suspended communications and direct mail that targeted federal agencies, including the military.

As if to highlight its “all hands on deck” approach to the war on terror, the Navy had redeployed its dolphin mine-clearing unit to the Persian Gulf for the first time since the 1980s. And it wasn’t being bashful about it.

“For thousands of years, man has made use of the capabilities of animals; their strength, extraordinary senses, swimming or flying ability,” wrote the public affairs spokesman for the Navy Marine Mammal Program in the
Stars and Stripes
newspaper. “Dolphins are naturally suited to perform undersea jobs that would be far more time-consuming and dangerous for human divers.” In the same article, Commodore Brian May of the British navy invoked the deity on behalf of the dolphin deployment: “The Lord God decided to give the dolphin the best sonar ability ever devised. We can only aspire to their ability.”

The Humane Society and People for the Ethical Treatment of Animals (PETA) denounced the use of dolphins in war zones and appealed to Secretary of Defense Donald Rumsfeld to withdraw them from the Gulf. But their protests bounced harmlessly off the Navy, which was running with the winds of war at its back, its sights trained on defending against better-armed and more-threatening adversaries.

Reynolds was content to let the animal rights and humane groups agitate in the media. He needed to concentrate on a legal strategy to deny the Navy a permit to unleash LFA sonar around the globe.

•  •  •

In April the Navy applied to Fisheries for a five-year permit to operate LFA sonar in 80 percent of the world’s oceans—everywhere except in the Arctic and Antarctic Oceans. Three months later, Fisheries granted the Navy permission to deploy its sonar in 75 percent of the oceans, excluding only a waterway circling the Antarctic and a handful of marine sanctuaries in the South Pacific.

Reynolds wasn’t surprised. He knew that federal regulators face an inherent conflict of interest when policing other federal agencies—and that Fisheries in particular had a history of accommodating the Navy’s requests. That’s why nongovernmental watchdogs like NRDC were created in the first place.

After seven years of auditing the Navy’s every move on LFA sonar, it was time for Reynolds to either play his hand or fold it. And he didn’t like his hand. Lawsuits, he had learned, are a crapshoot. You could have a good case and draw a bad judge. Even with a strong case and a good judge, there is always the risk of a bad outcome. Considering the country’s preoccupation with defending against another terrorist attack—and in light of how much time and money the Navy had spent preparing its Environmental Impact Statement—this didn’t feel to Reynolds like a strong case to take to court.

He would have preferred to sit down with the Navy and try to work out a settlement. But that wasn’t an option. Navy General Counsel Steve Honigman had been replaced by a Bush-appointed successor who clearly wasn’t interested in engaging with NRDC. Meanwhile, Reynolds had spent seven years mobilizing marine biologists and NRDC members to confront a threat to whales that—as the
Washington Post
reporter had noted—he’ d promised to fight. If NRDC didn’t go to court to contest the permit that Fisheries had issued, it would concede the Navy’s right to flood every ocean on the planet with high-intensity sound regardless of its impact on whales.

In anticipation of litigation, Reynolds and his team had spent much of the winter preparing. After enlisting a roster of local, national, and international conservation groups as co-plaintiffs,
¹
they needed to assemble a legal and scientific team equal to the challenge of a major litigation battle with the Navy, Fisheries, and the US Department of Justice.

In April he traveled to San Francisco to discuss the case with a friend, former Justice Department trial lawyer who had joined the law firm of Morrison & Foerster. In addition to adding some muscle to his legal team, working with corporate firms enhanced NRDC’s credibility with conservative judges. By the end of the day, he had successfully recruited the firm to join forces with NRDC on a pro bono basis. Andrew Sabey, a partner with a good courtroom manner who specialized in environmental litigation on behalf of developers, was assigned to lead the law firm’s team.

With co-plaintiffs and co-counsel in place, all Reynolds needed was a winning legal strategy. In addition to the adverse political climate, his biggest problem was the lack of legal precedent for defending marine mammals against acoustic threats. Congress passed the Noise Pollution and Abatement Act of 1972 to protect human health and minimize public annoyance from noise pollution in the air and on land. But the legal concept of noise pollution had never before been applied to the oceans. And no one had ever framed noise pollution or acoustic trauma as a threat to animals under the Endangered Species Act or as “harassment” of marine mammals under the Marine Mammal Protection Act. If he hoped to make his case to a federal judge, Reynolds would have to break new legal ground, which always reduced the odds of success.

He had other steep hills to climb. The Navy had spent seven years and $10 million building a science-based case for Low Frequency Active sonar as a low-risk antisubmarine weapon. For the first time, the Navy had agreed to abandon its pro forma Environmental Assessments and conduct a comprehensive Environmental Impact Statement. Its centerpiece was a three-part scientific research program co-directed by the country’s two leading bioacousticians, Chris Clark and Peter Tyack. Judges understood the law, not marine science, so Reynolds couldn’t expect to prevail by contesting the Navy’s scientific experts on a topic as complex as marine acoustics.

Finally, and most problematic for Reynolds, there was the time-honored doctrine of judges deferring to the military in disputes that bear on national security, even in peacetime. If Reynolds hoped to persuade a federal judge to rule against the Navy in the middle of an international war on terror, he’ d have to present a compelling rationale.

Reynolds had developed a number of arguments to level the playing field and enable a judge to uphold the interests of whales over the Navy’s. One of those was the precautionary principle, embedded in the Marine Mammal Protection Act. When that law was drafted in 1972, there was considerable uncertainty about which human activities threatened the survival of whales and other marine mammals. Whaling and wild capture posed obvious mortal threats. So did underwater explosions, which is why ship shock had been a relatively straightforward case to win. But there were other, less understood dangers, such as toxic contamination of habitats, and industrial and commercial development. Given the precarious state of marine mammal populations, the Marine Mammal Protection Act directed judges and regulators, in close cases, to resolve doubts about credible but unproven threats
in favor of marine mammals
. Acoustic threats to marine mammals were not yet recognized, much less understood, when the law was drafted. Thirty years later, there were still more questions than answers about the impact of high-intensity sound on whales and other marine life.

Never before had the Navy sought and received approval for so sweeping an activity on a global scale. Reynolds planned to highlight how the permit violated legal limitations on geographic range, numbers of animals affected, and overall impact on individual species. None of these limitations, in his view, would impair the Navy’s national security mission, and he was careful to craft his arguments to underline that point. He understood that to succeed in court, he would have to persuade the judge that environmental compliance and national defense were compatible objectives.

Reynolds had spent enough time in front of judges to understand that beneath their robes and honorific titles, they were individuals. Their job was to interpret the law, but their legal decisions were inevitably informed by their emotions, politics, and personality—particularly in a case like this one, pitting national security against the marine environment.

The one concern shared by all judges was the credibility of the evidence presented. To make his case, Reynolds would have to show “arbitrary and capricious” disregard for the permitting process by the Navy and Fisheries, a high legal standard of proof. But to convince a judge to issue an injunction to prevent the deployment of LFA sonar, Reynolds needed to cast doubt on the Navy’s fundamental contention that it posed no danger to whales.

The Bahamas stranding, which the Navy’s own interim report admitted was likely caused by sonar, upended all of the Navy’s carefully calibrated algorithms that “proved” the safety of high-intensity, low-frequency sound. Reynolds hoped to show how the Bahamas stranding made a mockery of the “safe buffer zones” and “allowable decibel thresholds” that the Navy proposed for LFA sonar. Reynolds had solicited the assistance of a number of scientific experts to make this case, including Hal Whitehead and Naomi Rose. But one, in particular, was central to this line of attack, because he was the only expert
eyewitness
to the Bahamas stranding: Ken Balcomb.

Balcomb’s academic credentials couldn’t compete with those of Navy experts such as Chris Clark and Peter Tyack. But he was a Navy-trained acoustician and an acknowledged beaked whale specialist who had witnessed the stranding and preserved the crucial evidence trail. And perhaps most significantly, Balcomb had challenged the Navy’s initial denial of the role of sonar in the event. The interim report vindicated Balcomb’s assertions and made Fisheries look more like a lapdog than a watchdog.