Judge Limits Navy Sonar Experiments

A federal judge in San Francisco on Tuesday prohibited the Navy from testing a powerful sonar system in most parts of the world’s oceans, ruling that the booming sounds to detect enemy submarines could “irreparably harm” whales, dolphins and fish.

U.S. District Judge Elizabeth D. Laporte ruled that the Navy and the National Marine Fisheries Service failed to consider alternatives that could shield whales and other marine life from these loud sounds, which some acousticians compare to standing next to the space shuttle at takeoff.

She ordered military and federal regulators to meet with environmental lawyers and their scientific experts to outline areas of the Pacific Ocean where the Navy can safely test the system. She recommended that the Navy give wide berth to coastal waters with abundant sea life as well as steer clear of corridors used by migrating whales and areas where they congregate.

In a 73-page opinion, Laporte wrote that she reviewed classified military information and accepted the Navy’s determination that it needs the sonar to detect super-quiet diesel submarines. For that reason, the judge said, she decided not to issue a complete ban on the sonar and instead will allow the Navy and environmental advocates to work out a carefully tailored plan that would become part of a permanent injunction.

The judge noted that her injunction would not hamper the Navy during times of war or heightened threat conditions.

Yet for peacetime testing and training, she wrote that she wanted to balance America’s national security needs with environmental safeguards for “whales, dolphins and other magnificent mammals that still live in the ocean.”

“Unfortunately, the populations of many of these creatures, once abundant, have shrunk, and some are on the verge of extinction,” Laporte wrote.

The public, she wrote, has a “strong interest in minimizing” injury from the “extremely loud and far-traveling sonar.” She noted that government scientists have attributed the March 2000 mass stranding and death of beaked whales in the Bahamas to a burst of Navy midfrequency sonar.

Scientists have discovered that bursts of intensive sound can tear the delicate air-filled tissues around mammals’ brains and ears, resulting in hemorrhaging and death.

Government scientists are investigating similar incidents, including the death of at least 11 porpoises in May around the San Juan Islands in the Pacific Northwest, shortly after naval exercises involving midfrequency sonar.

The Navy points out that its newest system, which uses low-frequency waves, has never been implicated in mass strandings, in which injured whales beach themselves. The Navy wants to comb 75% of the world’s oceans with the low-frequency active sonar, or LFA, which is designed to “light up” enemy submarines with acoustics, much the way a floodlight can illuminate an intruder in a darkened backyard.

The shipboard system consists of an array of 18 speakers capable of releasing 215-decibel bursts of low-frequency waves that can travel hundreds of miles before dissipating. The Navy says Russia and other nations have new, highly elusive submarines, and stresses that it needs the sonar to detect them in a timely manner to protect warships.

The National Marine Fisheries Service last year decided the sonar would have a “negligible impact” on marine species as long as it operated at least 12 miles from shore and was immediately turned off when observers spotted whales.

But the judge said such measures were not enough to satisfy the Marine Mammal Protection Act and other environmental laws, which apply to naval activities in U.S. territorial waters and on the high seas. The wide sweep of the sonar deployment, she wrote, would cross paths with endangered whales, salmon and sea turtles.

“There is little margin for error without threatening their survival,” she wrote. “For example, if even a few endangered gray whales of the mere 100 which remain near Sakhalin Island [north of Japan] are disturbed by LFA and fail to mate or give birth, that population might disappear permanently.

“Similarly, some populations of endangered sea turtles are so precarious that even the loss of a small number would be catastrophic to their survival,” she said.

In response to the ruling, the Navy expressed concern about the implications of her decision “for national defense and the ability of the Navy to respond to current and future threats.”

The Navy is urging Congress to relax some rules of the Marine Mammal Protection Act so it can more easily deploy sonar systems and other equipment without running afoul of the law.

Neither the Navy nor the National Marine Fisheries Service has indicated whether it will appeal Laporte’s decision.

“We are anxious to move forward on this,” said Rebecca Lent, a deputy director of the National Marine Fisheries Service. “We required all kinds of mitigation efforts. The judge would like us to consider additional measures.” Government officials expect to meet with environmental advocates and scientists in coming weeks and provide Laporte a status report by the end of September. She set a court date to review the plan on Oct. 7.

Joel Reynolds, a senior attorney with the Natural Resources Defense Council, called the injunction a “reprieve” for marine mammals and other creatures.

“It’s not the final answer, in terms of intense military sonar,” Reynolds said, whose organization, along with the Humane Society of the United States and other groups, filed suit. “But it’s a major step forward in addressing the problem of uncontrolled proliferation of dangerous high-intensity sonar.”

Until new restrictions are fashioned, the Navy will be limited to deploying the low-frequency sonar in the deep waters of the western Pacific, east and south of Japan, and stretching south to the Philippines. This is an area that environmentalists worked out with Navy strategists to meet the conditions of a temporary ban Laporte imposed last fall.

Laporte focused her latest opinion largely on whales, dolphins and other marine mammals with sensitive hearing that helps them find food and mates and avoid predators.

She noted that the Navy “arbitrarily and capriciously” ignored a British study that low-frequency sonar can kill fish and that federal officials have failed to properly assess the effect on endangered salmon.

The judge also emphasized the need to warn human divers about the sonar -- as the Navy has done in Guam -- to reduce the potential for casualties from panicked divers.

The opinion cited a study that one diver experienced “lightheadedness, dizziness, difficulty hearing, vibration in his arms, hands and distal lower extremities and shaking” at 160 decibels, prompting the Navy to reduce exposure in subsequent tests with human subjects.