The Deep

     It had been the mariners who heralded dolphins as a sign of good fortune.
     At a time when the sea was mysterious, dangerous, bountiful and beautiful.
     And now the sea becomes depleted, heated and polluted.
     So while it may seem that those who sail upon it should also be less than they were, it nevertheless comes as a surprise that those who lead a proud American military service are violating their own tradition as seafarers and the tradition of a nation built upon the law.
     Abandoning the sailor’s long-held regard for mammals of the deep, the Navy has pursued its use of dolphin and whale-killing sonar in coastal areas.
     Abandoning the military’s traditional regard for discipline and rules, the Navy has tried to make an end run around the courts, when they said the Navy must abide by environmental law.
     Listening to the arguments in the Ninth Circuit’s oasis-like setting in Pasadena, with birds singing outside in an extensive garden, I could hear like a bass line how the law has been battered by the Bush administration.
     Under an injunction ordered by Judge Florence Marie Cooper in the Central District of California, the Navy was required to stop using a powerful mid-range sonar when it came within 2,200 yards of a whale.
     The sonar has been reported through independent observation and study to be responsible for mass killings of whales and dolphins whose sense of orientation is wrecked.
     Rather than simply abide by the ruling, based on the nation’s environmental law, the Navy sought to avoid it by having President Bush sign a decree saying California environmental laws did not apply.
     The Navy then also went to the Council on Environmental Quality and obtained a statement saying the need for military exercises was an “emergency” that justified suspension of national environmental laws.
     It was like a what – a sonar echo – to hear the otherwise able government lawyer say that the one-sided hearing before the Council on Environmental Quality, where only the Navy presented its views, was a fair hearing that resulted in “robust record” upon which to base a decision over-riding a federal judge.
     And again the same echo when the government’s champion also refused to be pinned down by the persistent questions from the Ninth Circuit judges as to how the Navy defined an emergency such that the enforcement of the environmental law could be over-ridden.
     Because, what was unsaid, was that without a definition, the government has no limit on its power to declare an emergency whenever it wants to and forget about enforcing environmental laws.
     No challenges, no limitations.
     The lawyer for the environmental groups, Richard Kendall with Irell & Manella, countered that the Navy’s Pacific Fleet in particular has been willing to play “fast and loose” with the environmental laws by saying in practically all circumstances that compliance is not “feasible.”
     “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.”
     It was a reflection, in a hearing with only two reporters and no print coverage outside of Courthouse News, of the widely publicized national scandals over the White House attempt to get around the Hague Convention prohibition on torture, its one-sided hearings in Guantanamo and its firing of U.S. attorneys for political reasons.
     In the end, the government does not think that the law applies to it.
     And like an algae bloom that has spread through the government, the Navy thinks the same.
     Toward the end of the hearing when the government’s lawyer, Ronald Tenpas, argued that national security would be harmed by allowing the injunction to stand, Judge Stephen Reinhardt questioned whether it might not do greater harm to the nation to allow the government to avoid court rulings whenever it felt like it.
     The judge noted in an understated manner that past administrations had certainly challenged court decisions that were not to their liking, but they had done so through the courts.

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