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9th Circuit Upholds Sonar Limits on Navy Training Exercises

A federal appeals court, citing the need to protect marine life, has affirmed restrictions on the use of high-intensity sonar during Navy training exercises off the coast of Southern California.

The U.S. Court of Appeals for the 9th Circuit rejected the Bush administration's argument that the exercises were exempt from environmental law because they were essential to national security.

"While we are mindful of the importance of protecting national security, courts have often held, in the face of assertions of political harm to military readiness, that the armed forces must take precautionary measures to comply with the law during its training," the 9th Circuit said in a 108-page opinion.

The restrictions apply to present and future naval exercises.

However, the appeals court stayed two of the stricter measures for 30 days until the Navy finishes eight of 14 planned exercises this month.

If the Navy petitions the U.S. Supreme Court for review of the decision, the stay could extend beyond the 30 days.

One measure would require the Navy to shut down the sonar when marine mammals are spotted within 2,200 yards unless the sonar is being used at a critical point in the exercise.

The other involves lowering the decibel levels of the sonar in certain ocean conditions.

"The court's detailed ruling strikes the right balance between national security and environmental protection and properly rejects the unlawful waiver the Navy obtained from the White House," plaintiffs' attorney Richard Kendall of Irell & Manella said in a statement.

In January President Bush exempted the Navy training exercises from the requirements of the National Environmental Policy Act, saying they were essential to national security.

Under NEPA the Navy was required to prepare an environmental impact statement before conducting the exercises.

The exercises involved mid-frequency sonar, the most effective method for detecting quiet-running enemy submarines, according to the government.

Five environmental groups sued the Navy and several federal agencies in the U.S. District Court for Central District of California, contending that mid-frequency sonar is harmful to marine life, particularly endangered beak whales.

The suit alleged that the Navy's proposed training exercises would violate NEPA and several other federal laws.

The Navy previously agreed to use mitigating measures, such as posting lookouts to search for whales near the training exercises, reducing the decibel level when whales are present and suspending use of the sonar in bad weather when spotters cannot see whales on the surface.

However, the Navy did not propose using the mitigating measures for certain training exercises in a specific area off the coast of California where the underwater terrain is well suited for sonar training. Those exercises were the subject of the lawsuit.

U.S. District Judge Florence-Marie Cooper granted a blanket injunction, finding that the plaintiffs were likely to prevail and that the public interest in preserving marine wildlife outweighs the harm the government would suffer if it were prevented from using the sonar.

On appeal the 9th Circuit determined that the injunction should be narrower than a complete ban on sonar.

The panel instructed Judge Cooper to set restrictions the Navy must follow while conducting the remaining training exercises.

On remand, the judge banned the Navy from using sonar within 12 nautical miles of the California coast because of the abundance of marine life that would be harmed by sonar.

She also required the Navy to use spotters on ships to look for marine mammals for an hour before using sonar and move 2,200 yards away from the animals before using the sonar.

Further, the Navy must conduct aerial monitoring for the entire time the sonar is in use, the order said.

The Navy then sought a stay of Judge Cooper's injunction pending an appeal.

It said the Council on Environmental Quality, an executive agency that coordinates federal environmental efforts, approved "emergency alternative arrangements" for the exercises Jan. 15.

The Navy argued that the judge must defer to the CEQ and lift the injunction.

But Judge Cooper said the CEQ acted outside its regulatory authority because there was no "emergency."

The Navy then asked the 9th Circuit for an emergency stay of the injunction.

The appeals court refused, saying it wanted to rule directly on the merits of the preliminary injunction rather than first issuing an opinion on the motion for a stay.

The court then issued its ruling Feb. 29 affirming but narrowing Judge Cooper's injunction.

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