Ninth Circuit Hears Case on Navy Sonar v. Whales

PASADENA, Calif. (CN) - In a 9th Circuit hearing that setargumentsfornational security in sharp conflict with thoseforenvironmental protection, environmentalists arguedthat the executive branchplays "fast and loose" with the law as it seeks to conduct navy exercises that are often deadly for whales and dolphins.

Government lawyers argued that national security and the need to certify sailors capable of fighting the enemy justified not only the tests but also a large amount ofdiscretion for ship commanders over when to hold off using their powerful sonar.

The case was brought to the 9th Circuitby the Justice Department challenging a ruling in the district court that put limits on the Navy's use of the sonar in coastal areas, including a prohibition on using the sonar within 2,200 yards of marine mammals.

The panel of Judges Stephen Reinhardt, Dorothy Nelson and Betty Fletcher repeatedly asked about the government's definition of an "emergency action" that would justify the Navy's exerciseswithout an adequate study of the effects of the sonar on whales. Independently, a number of experts have reported onthe extensive and fatal effect of the Navy's sonar on whales.

But Ronald Tenpas, head of the Environment and Natural Resources Division at the Department of Justice, argued that the need to train sailors in a timely manner was such an emergency.He saida whale could pop up and sabotage an exercise by interfering with a battle ship'spreparation of "a solution to kill the sub."

Representing the Natural Resources Defense Council, Richard Kendall with Irell & Manella said, "There's a history of the Navy playing fast and loose with issue of feasibility" of environmental protections. He said the Pacific Fleet in particular repeatedly refused to accept environmental protections on the grounds that it would create a "bad precedent."

In fact, said Kendall, the mitigation of environmental harm was quite feasible, but the Navy simply did not want to comply with environmental protections and used a standard argument that it was impossible.

In their questioning, the judges seemed particularly concerned with the government's effort to go around the district court's injunction by obtaining a presidential order exempting the Navy from California's coastal regulations and by having the Council on Environmental Quality authorize the Navy's actions by sayingthere was an emergency.

"The President is always going to have a broader base of information," Tempas argued for the government.Even though the Council on Environmental Quality heard only one side of the argument the Navy's there was nevertheless a "robust record" justifying the council's decision, said Tempas.

His opponent noted that on the issue of getting all the evidence out,the government had withheld many of their affidavits on national security grounds. Kendall pointed out hehad in fact held a higher security clearance than the government'slawyers when he worked for the U.S. Attorney's office in Los Angeles. "They are making tactical use of classified declarations," he said.

Responding to the government's argument that the end-run around the lower court injunction was justified by an emergency, Kendall saidthe only emergency was the injunction itself. The Navy is fully capable of limiting its use of sonar and has done so in the past, he argued. Further, it was the Navy's decision to conduct exercises in coastal zones frequented by marine mammals.

"What they are really saying is that it is for us to decide how we will mitigate and for the court to stay out of the way," said Kendall. "That is not the law."

Near the end of the hearing, the government lawyer came back to the argument that the restrictions on the Navy would be harmful to national security. Judge Reinhardt questioned whether it would not be more damaging to the nation to allow the government to simply go around court decisions thatit didn't like. He noted that when past administrationsdisagreed with court rulings, they would challenge themthrough the court system.

Reinhardt concluded by saying that a ruling would be issued quickly.

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