War of the Whales (50 page)

At the same time, the Navy has shown that a total ban on use of LFA sonar for training and testing would pose a hardship. More broadly, the public has a compelling interest in protecting national security by ensuring military preparedness and the safety of those serving in the military from attacks by hostile submarines . . .

Balancing the harms and weighing the public interest, the Court concludes that a preliminary injunction should issue, but that it should not impose a complete ban on peacetime use of LFA sonar. Rather, the preliminary injunction should be carefully tailored to reduce the risk to marine mammals and endangered species by restricting the sonar’s use in additional areas that are particularly rich in marine life, while still allowing the Navy to use this technology for testing and training in a variety of oceanic conditions.

In particular, the preliminary injunction will extend the coastal buffer zone beyond 12 nautical miles in those coastal areas where LFA sonar can effectively operate at that distance, and will include additional, interim Offshore Biologically Important Areas that are reasonable candidates for permanent status . . . Defendants have acknowledged that they can restrict operations in certain parts of the ocean, during particular seasons, where LFA-equipped vessels are more likely to encounter marine mammals and endangered species. A tailored injunction will help ensure that they do so in compliance with the statutory mandates, including the Marine Mammal Protection Act’s mandate that LFA sonar has only a negligible impact on small numbers of marine mammals.

Accordingly, the parties are ordered to meet and confer on the precise terms of a preliminary injunction consistent with this opinion.

It Is So Ordered.

“It is so ordered,” Wetzler intoned with quiet satisfaction.

Reynolds returned to page one and reread the whole decision. He was impressed by the way that Laporte constructed her ruling to defend it against being overturned by a higher court. She deferred to the military’s national security concerns, as well as to the government’s scientific experts, but she managed to rule against the Navy and Fisheries on almost every substantive issue. She was careful to rule within the limits of the statutes, while taking full advantage of protections that each law afforded marine mammals.

Reynolds still had to negotiate the terms of the injunction. Judge Laporte had directed NRDC and the Navy to meet with a court-appointed mediator and reach a settlement as to where and when LFA sonar could operate and what safeguards would have to be implemented.
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As important as NRDC’s briefings and oral arguments had been to securing an injunction, the outcome of the settlement negotiations would be the most tangible measure of its success in limiting the risks of LFA sonar to marine mammals. Reynolds took the lead for the plaintiffs in the settlement talks, as he had more historical knowledge of the case—its origins, legal underpinnings, and technical aspects—than anyone on either side.

The mediation was a multistage, multiday process that included opening statements, arguments, and counterarguments. From the start, Reynolds’ strategy was to make the Navy declare the precise areas where it needed to operate for reasons of national security. The Justice Department lawyers balked at this, insisting that the negotiations begin from the 75 percent of the world’s oceans that Fisheries had initially approved. That was a nonstarter for Reynolds. Negotiations stalled.

Reynolds held important leverage in the negotiations. Without a settlement on geographic and seasonal exclusion areas, the Navy was barred by the preliminary injunction from operating LFA sonar anywhere. On the other hand, if he refused to agree to some sort of compromise, the judge would impose her own resolution.

For their part, the Department of Justice lawyers continued to behave as if they expected the Navy to eventually get its way, as it had always done. Under pressure from the mediator, they eventually offered to limit the geographic scope of deployment to the Pacific Ocean—65 million square miles, or fully half of the world’s ocean area. For Reynolds, that was another nonstarter. They were once again at an impasse.

LFA sonar’s program director, Joe Johnson, was beside himself with frustration. Reynolds may have waited seven years for his day in court, but Johnson had been working on Low Frequency Active sonar since its inception in the mideighties, and he’ d been directing the program since the midnineties. He and Bob Gisiner spent years building an Environmental Impact Statement that they hoped would stand up to any legal challenge.

Then he’ d suffered through the aftermath of the Bahamas stranding, watching the Navy, in his opinion, make a mess of the investigation
and
look guilty in the process. From Johnson’s perspective, the Navy had an agenda from the start of the investigation—to keep operating as it wanted without interference from regulators or watchdog groups—and it had constructed a narrative of the stranding that would sustain that agenda. But the Navy’s initial denials, its delaying tactics during the investigation, and the interim report with its backhanded admission of culpability only undermined the Navy’s credibility and tainted Johnson’s LFA sonar program.

Johnson had been forced to sit in court and watch NRDC dance circles around the Justice Department lawyers. Now those same government attorneys were keeping his sonar vessel, the
Cory Chouest
, locked up in port while they postured behind legal concepts that Judge Laporte had already ruled against. The Justice Department’s entire investment in Navy sonar was the six months it had spent arguing and losing its case. Johnson wasn’t going to let them play chicken with NRDC over the fate of a program he’ d nurtured for 15 years. It was high time, he believed, to get back out on the water and operate.

Johnson knew that if Steve Honigman had still been the Navy’s general counsel and Richard Danzig the Secretary of the Navy, the settlement talks would be over by now. But Danzig and Honigman were long gone. The new Navy Secretary, H. T. Johnson, was a former four-star Air Force general who’ d raised a lot of money for Bush’s 2000 campaign. He called the Secretary and explained the urgent need to reach a settlement that would allow the Navy to operate LFA sonar in strategic areas. Johnson was relieved when the Secretary gave him his proxy to cut a deal with NRDC.

Joe Johnson may have had another motive for intervening in the settlement negotiations, to which neither the Justice Department nor NRDC was privy. Once the preliminary injunction was ratified by the judge, there would be a “discovery” period during which NRDC would gain access to internal emails and other communications between Fisheries and the Navy during the permit application and review period. Johnson may have assumed that NRDC would discover, among other things, that the Office of Naval Research and its contractors had engaged in inappropriate collaboration on Fisheries’ drafting of the “final rules” of the permit. There was also a clear email trail showing that the Navy had failed to disclose a British navy study that concluded that low-frequency sound was likely damaging to fish populations. And Johnson himself had conveyed strong doubts, in writing, about the viability of the Navy’s 180-decibel safety threshold. Once brought to light, those incriminating documents would torpedo the Navy’s already suspect credibility and drive the judge even further into NRDC’s camp. Better to negotiate terms now, Johnson may have reasoned, while he still had a quantum of leverage.

Johnson and Reynolds sat down together, and within a few hours, they cut to the nub of the issue: the Navy wanted to be able to operate wherever and whenever it chose. But where did it
need
to deploy LFA sonar for national security? Johnson designated the Navy’s “need to operate” area along the eastern seaboard of Asia and in the deep ocean waters off the Philippine Sea, just outside the Taiwan Strait. Now that China had supplanted the Soviet Union as America’s primary naval rival in the Pacific, the US Navy wanted to bring every possible system to bear on monitoring China’s offshore waters.

The calculation for Reynolds was straightforward: Joe Johnson was willing to settle for between 1 percent and 2 percent of the world’s oceans, rather than the 75 percent that Fisheries had granted. He was also willing to agree to seasonal and geographic exclusions to avoid migration routes, feeding areas, and breeding grounds for the West Pacific gray whales and humpbacks, and to exclude the marine protected area around the Mariana Islands. By the end of the day, the two sides had hammered out the terms of a settlement agreement, which Judge Laporte quickly approved.

After a lengthy discovery period—which indeed uncovered the incriminating trail of inappropriate emails between the Navy and Fisheries
³
—Judge Laporte issued a permanent injunction extending the terms of the negotiated settlement for five years.

The next day, Reynolds convened a press conference on the Santa Monica bluffs overlooking the Pacific Ocean. Flanked by Jean Michel Cousteau, International Fund for Animal Welfare president Fred O’Regan, and actor and marine mammal activist Pierce Brosnan, Reynolds announced the launch of an international campaign to stop the proliferation of high-intensity sonar in oceans around the world.

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Counterattack

It didn’t take long for the Navy to regroup and counterattack. If the courts ruled that the Navy was violating environmental statutes, it could go to Congress to change the laws. And within months of the Low Frequency Active sonar decision, the Navy did just that. In rapid succession, the Pentagon’s allies on Capitol Hill introduced and passed amendments to the Marine Mammal Protection Act that deleted the “small take” and “specified geographic region” requirements and added a “national security exemption” that the Secretary of Defense could invoke at his sole discretion. Hoping to ride a wave of promilitary sentiment in Congress, the Defense Department also proposed national security exemptions to the Clean Water Act, the Clean Air Act, and the Migratory Bird Treaty Act.

Meanwhile, NRDC aimed to make up the ground it lost on Capitol Hill by mobilizing the advocacy and scientific communities. Winning the sonar case, Reynolds learned, turned night into day when it came to recruiting partners. Previously unpersuaded conservation groups were now eager to join NRDC’s campaign. Many of the fence-sitting scientists were emboldened to join the fight against high-intensity sonar.

NRDC’s sonar victory, and media reports about it, also raised public awareness of the threat that military sonar posed to whales. Now, when whales stranded on beaches, people trained their sights on the horizon line. With increasing frequency, they noticed battleships conducting midfrequency sonar exercises:

In June 2004 six beaked whales stranded in the Gulf of Alaska during “Northern Edge” joint exercises between the US and Canadian navies.

In July 2004 four beaked whales stranded during “Majestic Eagle” NATO exercises in the Canary Islands, not far from the site of the 2002 stranding.

Later that same month, during US-Japanese joint exercises conducted near the Hawaiian island of Kauai, 200 melon-headed whales fled into Hanalei Bay and milled about for hours in tight, frantic circles. Local volunteers in kayaks and canoes were eventually able to herd them back out to open water.

In January 2005, 37 whales stranded along North Carolina’s Outer Banks following US Navy sonar exercises.
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Scientists working under federal contract conducted necropsies and tissue analyses to determine the causes of death. The government refused to release the scientists’ findings despite a Freedom of Information Act lawsuit filed by NRDC.

On January 26, 2006, following midfrequency sonar exercises by the British Royal Navy, four Cuvier’s beaked whales stranded on the Almerían coast of southern Spain, with the same suite of bends-like symptoms seen in whales that stranded in the Canary Islands in 2002 and 2004.

But of all the mass strandings during the period following the LFA sonar case, the one that gained the most attention and notoriety occurred—once again—in Ken Balcomb’s front yard. For the second time in three years, Balcomb documented and publicized a mass stranding during US Navy sonar exercises.

After testifying at NRDC’s sonar hearing in October, Balcomb had returned to San Juan Island, content to resume his orca survey and leave the courtroom dramas to the lawyers.

The whales returned to Puget Sound in April, on schedule. Just before noon on May 5, 22 members of J Pod, ranging in age from 60 years to three months, were foraging for salmon in the cove behind Balcomb’s home and research station. Standing on his deck and watching the whales through the zoom lens of his video camera, Balcomb could see a harbor porpoise and a minke whale hunting alongside the orcas. Two whale-watching boats bobbed in the water nearby. He switched on the underwater hydrophones to hear if he could distinguish the orcas’ chirping from the harbor porpoise’s and minke whale’s calls.