SAN FRANCISCO (CN) – The Ninth Circuit heard arguments Thursday on the Navy’s ability to protect endangered marine mammals from low-frequency sonar blasts.
The federal appeals court met in the James R. Browning U.S. Courthouse to consider several environmental groups’ challenge to the Navy’s use of Surveillance Towed Array Sensor System Low Frequency Active Sonar, or SURTASS LFA, to better detect enemy submarines as part of peacetime training.
Though artificial underwater noise like sonar can cause hearing loss in marine mammals, make them abandon habitats, and impede their ability to navigate, communicate, and catch prey, the Navy claimed no other type of sonar could fulfill its needs. It also insisted that it never found any obvious signs of death or serious injury to marine mammals in its 11 years of using LFA.
In 2012, the National Marine Fisheries Service (NMFS) approved the Navy’s plan to deploy 18 deepwater loudspeakers in the Atlantic, Pacific, and Indian Oceans and the Mediterranean Sea over a five-year period.
Among other things, the plan mandates that no more than 12 percent of any species of marine mammal can face level B harassment, or disruptions to breeding, feeding and migration. It also designated off-shore biologically important areas (OBIAs) and required the Navy to keep operations at least 12 nautical miles from coastal exclusion zones.
But the National Resources Defense Counsel (NRDC) and several co-plaintiffs claimed the mitigation measures were not enough to protect marine mammals from being hurt by blasts of sonar.
Though U.S. District Judge Elizabeth Laporte nixed many of the environmentalists’ claims in March 2014 and praised several of the Navy’s mitigation measures, she also found that the government did not properly assess impacts to bottlenose dolphin populations around Hawaii.
Two months later, the Navy promised to better estimate bottlenose dolphin stocks before authorizing the sonar system in an effort to avert trial, but the environmental groups appealed to the Ninth Circuit that July.
NRDC attorney Michael Wall argued at Thursday’s hearing that the Navy shirked its duty to mitigate take of marine mammals to the lowest possible levels.
“Your honors, a negligible impact finding by the service is where the duty to mitigate begins, not where it ends,” he said in his opening statement, addressing the three-judge panel.
Since the service cannot authorize any activity until it reaches a negligible impact finding, it must ensure that negligible impacts themselves are mitigated under the least practicable adverse impact standard, which it has not done here, Wall argued.
In their litigation briefs, the government claimed that whether the Navy could further reduce harm doesn’t matter because there were no impacts to mitigate – a position it reaches by “importing its definition of negligible impacts” into the standard so that it refers solely to impacts to species-level reproduction and survivability, Wall said.
“If you have to have impacts that exceed that standard, then you’re never going to have any mitigation under the act,” Wall said.
Since the preamble to the final rule contains no discussion of population level impacts or species survival rates, he argued, the government’s litigation position and arguments adopted by the briefs are not based on anything within the initial rulemaking.
When Judge Michelle Friedland asked if the court’s agreeing with the plaintiffs on the issue of securing more protected habitat as a mitigation measure would solve their problem, Wall acknowledged that it could do so for this case but not necessarily for others.
Judge Ronald Gould, who attended the hearing via video monitor, asked Wall whether the statute and regulation only apply to peacetime exercises.
Wall assured him that there is a national security exemption that allows the Navy to use sonar for wartime purposes, which he said is not what the conservationists are challenging.
“This is very much not a case about military readiness. The problem here is that there were available means of reducing impacts to both the marine mammals and their habitat, and the service said that the practicability question was immaterial,” Wall said.
Friedland, who asked most of the questions during the hearing, wondered how well the rule actually protected marine mammals.
Wall explained that while the Navy has observers and a two-kilometer buffer zone around ships, the impacts of the SURTASS LFA sonar extend far beyond that.
“It would be very surprising actually if you could document that in any practical way. It hasn’t been documented, but what we have is the science saying this is what we expect to happen,” Wall answered.
Meanwhile, Emily Polachek, attorney for the NMFS and the Navy, argued that the government followed the statute to the letter.
She countered Wall’s argument that the least practicable impact standard does not apply to the population or species level by pointing out that the phrase “species or population stock” is repeated in the text, indicating that Congress intended that standard to refer to population level effects.
When Polachek argued that the environmental groups’ interpretation writes out that phrase from the statute, Friedland cited their argument that the government has written out mitigation from the statute and asked for her response.
Polachek explained that the NMFS could mitigate and reduce negligible impacts, which is what happened here.
“Here the mitigation measures bring it down so that there are no population impacts,” she said. “None is less than negligible, so in that way mitigation does serve a purpose.”
Though the negligible impact and least practicable impact standards overlap in several places, they are very different statutes and the government is treating them as such, Polachek said.
Friedland asked how the Navy has minimized impacts to marine mammals despite not following the White Paper, a 2010 document recommending that the Navy mitigate impacts based on predictions about the presence of mammals.
Polachek argued that the government requires “an actual showing of biological importance” rather than mere inferences, but Friedland noted that there are entire regions of the ocean in which we do not have data.
“Doesn’t it seem logical that it would be less of an impact on the mammals if we assumed that they did exist in some of the areas where the scientists say they probably do?” Friedland asked, gesturing with her pen.
Polachek said the government wants concrete facts before it designates OBIAs because these areas restrict the Navy’s movements. As per Congress’s directive, the service must balance between military readiness and environmental protection, she said.
Friedland asked how the Navy could be sure about its amount of take, especially if an animal was hurt in the mitigation zone but then swam away and later died.
Polachek said the Navy uses formulas based on monitoring the number of times an animal is visually observed in the buffer zone and how many times the passive and active sonar indicated an animal’s presence.
“It’s near 100 percent effective with the protocols that the final rule puts forward,” she stated.
Friedland again pointed out that there is no way to know if a baby animal outside the mitigation zone loses its mother as a result of sonar blasts and dies.
“I just don’t understand how we can even know whether this is working,” the judge said.
Polachek argued that the Navy is the foremost researcher on marine mammals. “To the extent that we’re guessing, it’s guessing on the side of the species,” she said.
Both the Navy and the NMFS report annual take reports online. According to past reports, the highest take level over the past three years was 4.37 percent – well under the 12 percent limit, Polachek said.
Judge John Noonan Jr. broke his silent observation of the proceedings to ask if Polachek could cite a source that could give the court a sense of the span of the Navy’s use of SURTASS LFA sonar.
Polachek again referred to the online applications take, in which the Navy must specify the geographic scope of its missions, but said she did not know of any source delineating the general scope of the operations.
Noting that her time was up, Polachek gathered her papers and sat down.
In a short rebuttal, Wall disputed whether plain language supported the government’s interpretation.
“If you were to take the words ‘least practicable adverse impact on such species’ and replace it with the words ‘least practicable adverse impact on homo sapiens,’ which of course is a species,” he said, eliciting a smile from Friedland, “I don’t think there’d be any doubt that if you were causing up to 12 percent of homo sapiens to abandon or significantly alter their natural behaviors, that that would be an adverse impact.”
Wall asked how there can be a finding of both negligible impacts and population impacts when a negligible impact by definition has no species-level effects.
“Basically what happened here is that the service ignored a problem,” he said. “It knew that identifying biologically important areas was important. …But the methodology it came up with was totally inapplicable in most of the world’s oceans and incapable of distinguishing important from insignificant areas.”
The government’s own scientists are telling them they have enough data to reduce impacts now without resorting to adaptive management like the final rule, but the service is ignoring its own experts, Wall claimed.
Studies are being conducted to help fill in the gaps in the data, but it’s a difficult problem to study definitively – the idea that a fish-finding sonar tool can tell whether mothers are being separated from calves who then end up dying “is entirely unsupported by the record,” Wall argued.
As the hearing wound down, Gould complimented and thanked the attorneys for a case well-argued on both sides.
Friedland announced the case was submitted and, with a bang of her gavel, adjourned the court for the day.
- Harold Ramis
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