War of the Whales (52 page)

Having successfully lobbied Congress for its national security exemption, the Navy showed no interest in negotiating with NRDC over its midfrequency sonar trainings. The US military was waging wars in both Afghanistan and Iraq, so rallying the public to pressure the Navy for reforms was a long shot. But relying on the Navy’s internal Environmental Assessments was a certain formula for continued mass strandings. Litigation, Reynolds concluded, was the only stick that could move the Navy toward accountability and outside review.

By 2005, Reynolds faced a fateful go/no-go decision. Filing a lawsuit was likely to instigate a series of actions and reactions inside the Navy, the Pentagon, the Congress, and the White House over which he’ d have no control. The Navy had a national security exemption in its back pocket, a virtual “Get out of jail free” card it could play at will. And even if he won a ruling in a lower court, Reynolds could expect the Navy to appeal it, if necessary, all the way up to the US Supreme Court.

Reynolds reached out for assistance to Richard Kendall, the attorney who’ d helped him win the ship shock case back in 1994. Ten years on, Kendall was now a senior partner at Irell & Manella, where he represented Viacom, CBS, Paramount Pictures, and a host of other Hollywood heavyweights. Kendall was a successful-enough litigator to charge his clients top-of-the-market rates: at that time, over $700 an hour. But he agreed to help on a pro bono basis and to bring along several of his brightest young associates.

Reynolds had recently bolstered his own legal team by recruiting a young attorney to replace Andrew Wetzler when he moved to NRDC’s Chicago office to focus on his own endangered species cases. Cara Horowitz had graduated first in her UCLA Law School class. She was as smart as Jasny and as calm in a storm as Wetzler.

Reynolds also lined up potential co-plaintiffs. His first call was to Naomi Rose at the Humane Society. But despite their successful partnership in opposing low-frequency sonar, Acoustic Thermometry, and ship shock, Rose couldn’t persuade her organization to sign on to the midfrequency case. The Humane Society deemed it too risky politically to take on the Navy with such a confrontational and high-profile lawsuit. Fortunately, Fred O’Regan of the International Fund for Animal Welfare and Jean-Michel Cousteau of Ocean Futures Society had no reservations. They were in.

On October 19, 2005, NRDC and its co-plaintiffs filed suit against the US Navy for violations of environmental laws in its midfrequency sonar testing and training around the world. Reynolds decided to file in Los Angeles, where he knew the judges and where the coastline was particularly rich with marine life. US District Judge Florence-Marie Cooper, a Clinton appointee with decades of experience on the bench, was assigned the case from the wheel. When Reynolds filed “discovery” of the Navy’s sonar training records, the Navy lawyers protested that NRDC’s request was “overbroad and irrelevant.” Judge Cooper rejected their objections and ordered the Navy to produce most of the requested documents. As Reynolds had expected, the Navy leadership responded like a tiger jabbed with a sharp stick.

* To view the original video and sound recorded by Ken Balcomb in Haro Strait, go to: http://vimeo.com/35584781.

27

The Admirals Take Charge

Early on a Tuesday morning, an attorney from Operations stuck her head into Rear Admiral Pete Daly’s office. “You’re not going to believe this,” she said, “but the legal eagles over in Environmental Readiness are preparing to deliver a ton of sonar data that the California court ordered them to make public. You should take a look.” She handed Daly six fat folders filled with ships’ logs. “And this is just for the Atlantic ranges.”

Daly was incredulous that Navy lawyers were preparing to release five years of classified operational data detailing the locations and capabilities of Navy sonar assets around the world. The 27-year veteran had served as antisubmarine warfare commander aboard a midfrequency sonar destroyer in the Pacific before commanding a destroyer, a destroyer squadron, and a carrier strike group in the Gulf. After commanding the
Nimitz
strike group in support of Operations Enduring Freedom and Iraqi Freedom, he was awarded his second star and assigned to the staff of the Chief of Naval Operations, Admiral Mike Mullen.

By lunchtime, Daly had expressed his concerns to Mullen about handing over the sonar data. Mullen shared Daly’s outrage, both at the judge’s order and at the willingness of the Navy environmental compliance lawyers at N-45 to, well, comply with such an order. By day’s end, Mullen had arranged a sit-down between Daly, himself, and the new Navy Secretary, Donald Winter. Ever since Winter’s predecessor, H. T. Johnson, gave his blessing to the LFA settlement back in 2002, the admirals had regarded the secretariat with suspicion—and as a potential adversary in Fleet Command’s struggle to maintain control over its sonar exercises. They considered Secretary Winter, who had been CEO of defense contractor Northrop Grumman before his appointment by President Bush, as more of a businessman than a comrade in arms.

Secretary Winter was sympathetic to the admirals’ expressed concern that the environmental compliance lawyers were “driving the bus over a cliff.” But when Admiral Mullen asked him to invoke the state secrets privilege in response to NRDC’s discovery motion, Winter demurred. The state secrets privilege was reserved for extraordinary cases where the government refused to turn over evidence to a court on grounds of national security. Winter wanted to develop a detailed rationale that he could defend in court before invoking the privilege. Otherwise the judge could overrule his request, and the last thing the Navy needed—he was sure they all agreed—was another poke in the eye from the judiciary. Mullen directed Daly to “work it up” with the Navy general counsel—but not with the lawyers at Environmental Readiness.

Ultimately, the Navy invoked the state secrets privilege, which led to another round of furious briefings on all sides—and eventually, a compromise settlement was hammered out in Judge Cooper’s courtroom.

In the meantime, the Navy responded by filing its own broad discovery motions aimed at NRDC’s co-plaintiffs. In particular, the Navy demanded that Jean-Michel Cousteau provide them with access to every foot of film and videotape he’ d shot of whales, going back ten years. With each side filing successive rounds of motions and objections, the case soon bogged down into legal trench warfare, with neither side able to gain an advantage.

Reynolds’ first gut check on litigating midfrequency sonar came a few months later, in the summer of 2006. The US Pacific Fleet was preparing to conduct eight days of joint sonar exercises with the navies of six Pacific Rim allies in the waters off Hawaii.
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Two years earlier, the same exercises had caused the panicked flight of 200 melon-headed whales into Hanalei Bay—although the Navy still contended that some rare combination of meteorological circumstances may have been to blame. In advance of these latest joint exercises, the Navy had prepared its usual Environmental Assessment, leading to its usual Finding of No Significant Impact. Since the Navy proposed to conduct the joint exercises in one of the most whale-rich environments in the Pacific, Reynolds thought this might be a strong test case for challenging midfrequency sonar.

Reynolds and Jasny debated whether or not they should sue. Jasny worried that if they confronted the Pacific Fleet on the eve of a major exercise, the Navy would set a damaging precedent by invoking its new national security exemption. Their discussions turned into heated arguments. Voices were raised. Jasny had differed with Reynolds over strategy now and again, but this was the first time he believed his mentor was flat wrong. Suing the Navy over imminent international war games felt to Jasny like going over the falls in a barrel. Just the thought of it made him nauseous.

Reynolds conferred with Kendall, who said he was ready to sue the Navy if Reynolds was. In the end, Reynolds decided the potential upside outweighed the risks. They’ d have the same moderate federal judge in that jurisdiction as in the case they filed in Los Angeles—Florence-Marie Cooper—who Reynolds bet was strong willed enough to stand up to the military. Given the near-disastrous melon-headed-whale incident during the previous joint exercises in these waters, he thought they had a reasonable chance to make good law and set an important legal precedent. Two days before the scheduled start of the joint exercises, NRDC filed suit, asking the judge to issue a temporary restraining order pending a hearing on a preliminary injunction.

As Jasny had feared, Secretary of Defense Rumsfeld immediately granted the Navy a two-year national security exemption from the Marine Mammal Protection Act. It was the first time the Navy had invoked the exemption that Congress granted it three years earlier.

The long Fourth of July weekend was a blur of speed-written briefs and reply briefs. On Monday, July 3, Judge Cooper stunned the Navy by issuing a temporary restraining order that blocked commencement of the international joint exercises. Judge Cooper ruled that regardless of its national security exemption from the Marine Mammal Protection Act, the Navy had violated another federal environmental statute, the National Environmental Policy Act, by failing to conduct a thorough environmental impact analysis. In issuing the temporary restraining order, she stated that “given the considerable convincing scientific evidence demonstrating that the Navy’s use of midfrequency sonar can kill, injure, and disturb many marine species, including marine mammals,” NRDC was “likely to prevail” in its lawsuit. The Navy quickly filed an emergency appeal with the US Court of Appeals for the Ninth Circuit.

Meanwhile, Judge Cooper directed the Navy and NRDC to meet immediately to try to negotiate a settlement that would allow the exercises to proceed with increased safeguards in place. While the US and Pacific Rim navies idled in the waters off the Hawaiian Islands, Reynolds and Kendall talked terms with the Navy’s lawyers. After several rounds of bids and counterbids, the Navy made its final settlement offer on Friday morning, July 7. If NRDC turned it down, the Navy would pursue its appeal, with a decision requested from the Ninth Circuit by noon.

The Navy’s final offer included a 25-mile exclusion zone around coastal areas and the Northwestern Hawaiian Islands Marine National Monument, as well as other operational safeguards such as underwater, aerial, and ship-based surveillance for marine mammals. Reynolds was torn. The Navy’s position was less than he thought that NRDC—and the whales—deserved. But it was more than the Navy had ever agreed to for a midfrequency sonar exercise. If he didn’t settle for half of what he wanted now, Reynolds worried that he might lose it all in the court of appeals.

The Navy had always claimed it couldn’t train under the restrictions of environmental safeguards. Its current willingness, under legal pressure, to submit to even partial limitations on its sonar training methods would set an important precedent, Reynolds believed. After conferring with his team, Reynolds decided to accept the Navy’s final offer.

When Judge Cooper entered her settlement order, allowing the exercises to proceed with new safety measures in place, some of the more radical Hawaiian conservationists condemned the deal as a sellout by NRDC. Reynolds wasn’t surprised. He reminded himself that while some of his critics might be good at mobilizing public protests and press coverage, none of them had ever successfully sued the Navy over its use of sonar. As he’ d learned over the years, the hardest part of his job was deciding when to litigate and when to cut a good-enough deal, which—as in this case—was often on the table for only a brief moment. With this settlement, NRDC had now won significant concessions by the Navy in its deployment of both low-frequency and midfrequency sonar.

It wasn’t his nature to second-guess himself, but Reynolds still held his breath until the newspapers reported on the settlement. To his relief, the press credited the agreement as a major environmental victory.

It soon became clear to Reynolds that contesting midfrequency sonar was going to be a war of attrition, fought in successive Navy ranges around the country and, eventually, around the world. Six months after winning an injunction and sonar safeguards in Hawaii, NRDC faced another midfrequency battle closer to home. The Navy announced 14 major training exercises over a two-year period in the waters off the Southern California coast, including sonar training in and around the Channel Islands National Marine Sanctuary. According to the Navy’s own Environmental Assessment, these exercises would result in a “take,” or harassment, of 170,000 marine mammals from 30 species, including five species of endangered whales.

The California Coastal Commission informed the Navy of safeguards it would require. When the Navy challenged the commission’s jurisdiction and proceeded without those safeguards, NRDC, its co-plaintiffs,
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and the Coastal Commission sued the Navy to block the Southern California exercises. Because the Navy’s two-year national security exemption from the Marine Mammal Protection Act was still in force, Reynolds had to rely once again on the National Environmental Policy Act, the Endangered Species Act, and other statutes.