For Reynolds, it was the worst possible time to consider filing a lawsuit against the US Navy. No matter how incriminating the interim report might appear, he knew that the recently transformed political landscape had strengthened the Navy’s hand immeasurably. Three months earlier, immediately following the 9/11 attacks, President George W. Bush had launched the war on terror. American armed forces were deployed across Afghanistan and the Persian Gulf, and every American embassy and military base around the world was on high alert. In October the US Senate had voted 98–1 to pass the Patriot Act—an acronym for Providing Appropriate Tools Required to Intercept and Obstruct Terrorism—which dramatically expanded the government’s power to gather intelligence abroad and at home.
To a degree that Reynolds had never witnessed in his lifetime, American citizens were united by fraught bonds of fear, anger, and patriotism. American flags were on display everywhere, and “America the Beautiful” became the new national anthem, kicking off every NFL football game. For the first time since World War II, the vast majority of Americans embraced a foreign war and the soldiers and sailors fighting overseas. In deference to the prevalent patriotic mood, NRDC—and virtually every other advocacy organization—had suspended communications and direct mail that targeted federal agencies, including the military.
As if to highlight its “all hands on deck” approach to the war on terror, the Navy had redeployed its dolphin mine-clearing unit to the Persian Gulf for the first time since the 1980s. And it wasn’t being bashful about it.
“For thousands of years, man has made use of the capabilities of animals; their strength, extraordinary senses, swimming or flying ability,” wrote the public affairs spokesman for the Navy Marine Mammal Program in the Stars and Stripes newspaper. “Dolphins are naturally suited to perform undersea jobs that would be far more time-consuming and dangerous for human divers.” In the same article, Commodore Brian May of the British navy invoked the deity on behalf of the dolphin deployment: “The Lord God decided to give the dolphin the best sonar ability ever devised. We can only aspire to their ability.”
The Humane Society and People for the Ethical Treatment of Animals (PETA) denounced the use of dolphins in war zones and appealed to Secretary of Defense Donald Rumsfeld to withdraw them from the Gulf. But their protests bounced harmlessly off the Navy, which was running with the winds of war at its back, its sights trained on defending against better-armed and more-threatening adversaries.
Reynolds was content to let the animal rights and humane groups agitate in the media. He needed to concentrate on a legal strategy to deny the Navy a permit to unleash LFA sonar around the globe.
• • •
In April the Navy applied to Fisheries for a five-year permit to operate LFA sonar in 80 percent of the world’s oceans—everywhere except in the Arctic and Antarctic Oceans. Three months later, Fisheries granted the Navy permission to deploy its sonar in 75 percent of the oceans, excluding only a waterway circling the Antarctic and a handful of marine sanctuaries in the South Pacific.
Reynolds wasn’t surprised. He knew that federal regulators face an inherent conflict of interest when policing other federal agencies—and that Fisheries in particular had a history of accommodating the Navy’s requests. That’s why nongovernmental watchdogs like NRDC were created in the first place.
After seven years of auditing the Navy’s every move on LFA sonar, it was time for Reynolds to either play his hand or fold it. And he didn’t like his hand. Lawsuits, he had learned, are a crapshoot. You could have a good case and draw a bad judge. Even with a strong case and a good judge, there is always the risk of a bad outcome. Considering the country’s preoccupation with defending against another terrorist attack—and in light of how much time and money the Navy had spent preparing its Environmental Impact Statement—this didn’t feel to Reynolds like a strong case to take to court.
He would have preferred to sit down with the Navy and try to work out a settlement. But that wasn’t an option. Navy General Counsel Steve Honigman had been replaced by a Bush-appointed successor who clearly wasn’t interested in engaging with NRDC. Meanwhile, Reynolds had spent seven years mobilizing marine biologists and NRDC members to confront a threat to whales that—as the Washington Post reporter had noted—he’ d promised to fight. If NRDC didn’t go to court to contest the permit that Fisheries had issued, it would concede the Navy’s right to flood every ocean on the planet with high-intensity sound regardless of its impact on whales.
In anticipation of litigation, Reynolds and his team had spent much of the winter preparing. After enlisting a roster of local, national, and international conservation groups as co-plaintiffs,1 they needed to assemble a legal and scientific team equal to the challenge of a major litigation battle with the Navy, Fisheries, and the US Department of Justice.
In April he traveled to San Francisco to discuss the case with a friend, former Justice Department trial lawyer who had joined the law firm of Morrison & Foerster. In addition to adding some muscle to his legal team, working with corporate firms enhanced NRDC’s credibility with conservative judges. By the end of the day, he had successfully recruited the firm to join forces with NRDC on a pro bono basis. Andrew Sabey, a partner with a good courtroom manner who specialized in environmental litigation on behalf of developers, was assigned to lead the law firm’s team.
With co-plaintiffs and co-counsel in place, all Reynolds needed was a winning legal strategy. In addition to the adverse political climate, his biggest problem was the lack of legal precedent for defending marine mammals against acoustic threats. Congress passed the Noise Pollution and Abatement Act of 1972 to protect human health and minimize public annoyance from noise pollution in the air and on land. But the legal concept of noise pollution had never before been applied to the oceans. And no one had ever framed noise pollution or acoustic trauma as a threat to animals under the Endangered Species Act or as “harassment” of marine mammals under the Marine Mammal Protection Act. If he hoped to make his case to a federal judge, Reynolds would have to break new legal ground, which always reduced the odds of success.
He had other steep hills to climb. The Navy had spent seven years and $10 million building a science-based case for Low Frequency Active sonar as a low-risk antisubmarine weapon. For the first time, the Navy had agreed to abandon its pro forma Environmental Assessments and conduct a comprehensive Environmental Impact Statement. Its centerpiece was a three-part scientific research program co-directed by the country’s two leading bioacousticians, Chris Clark and Peter Tyack. Judges understood the law, not marine science, so Reynolds couldn’t expect to prevail by contesting the Navy’s scientific experts on a topic as complex as marine acoustics.
Finally, and most problematic for Reynolds, there was the time-honored doctrine of judges deferring to the military in disputes that bear on national security, even in peacetime. If Reynolds hoped to persuade a federal judge to rule against the Navy in the middle of an international war on terror, he’ d have to present a compelling rationale.
Reynolds had developed a number of arguments to level the playing field and enable a judge to uphold the interests of whales over the Navy’s. One of those was the precautionary principle, embedded in the Marine Mammal Protection Act. When that law was drafted in 1972, there was considerable uncertainty about which human activities threatened the survival of whales and other marine mammals. Whaling and wild capture posed obvious mortal threats. So did underwater explosions, which is why ship shock had been a relatively straightforward case to win. But there were other, less understood dangers, such as toxic contamination of habitats, and industrial and commercial development. Given the precarious state of marine mammal populations, the Marine Mammal Protection Act directed judges and regulators, in close cases, to resolve doubts about credible but unproven threats in favor of marine mammals. Acoustic threats to marine mammals were not yet recognized, much less understood, when the law was drafted. Thirty years later, there were still more questions
than answers about the impact of high-intensity sound on whales and other marine life.
Never before had the Navy sought and received approval for so sweeping an activity on a global scale. Reynolds planned to highlight how the permit violated legal limitations on geographic range, numbers of animals affected, and overall impact on individual species. None of these limitations, in his view, would impair the Navy’s national security mission, and he was careful to craft his arguments to underline that point. He understood that to succeed in court, he would have to persuade the judge that environmental compliance and national defense were compatible objectives.
Reynolds had spent enough time in front of judges to understand that beneath their robes and honorific titles, they were individuals. Their job was to interpret the law, but their legal decisions were inevitably informed by their emotions, politics, and personality—particularly in a case like this one, pitting national security against the marine environment.
The one concern shared by all judges was the credibility of the evidence presented. To make his case, Reynolds would have to show “arbitrary and capricious” disregard for the permitting process by the Navy and Fisheries, a high legal standard of proof. But to convince a judge to issue an injunction to prevent the deployment of LFA sonar, Reynolds needed to cast doubt on the Navy’s fundamental contention that it posed no danger to whales.
The Bahamas stranding, which the Navy’s own interim report admitted was likely caused by sonar, upended all of the Navy’s carefully calibrated algorithms that “proved” the safety of high-intensity, low-frequency sound. Reynolds hoped to show how the Bahamas stranding made a mockery of the “safe buffer zones” and “allowable decibel thresholds” that the Navy proposed for LFA sonar. Reynolds had solicited the assistance of a number of scientific experts to make this case, including Hal Whitehead and Naomi Rose. But one, in particular, was central to this line of attack, because he was the only expert eyewitness to the Bahamas stranding: Ken Balcomb.
Balcomb’s academic credentials couldn’t compete with those of Navy experts such as Chris Clark and Peter Tyack. But he was a Navy-trained acoustician and an acknowledged beaked whale specialist who had witnessed the stranding and preserved the crucial evidence trail. And perhaps most significantly, Balcomb had challenged the Navy’s initial denial of the role of sonar in the event. The interim report vindicated Balcomb’s assertions and made Fisheries look more like a lapdog than a watchdog.
Reynolds fully expected Fisheries and the Navy to argue that evidence from the Bahamas investigation was irrelevant to LFA sonar. As the executive summary of their interim report stated clearly: “Low Frequency Active, another Navy sonar, had no involvement in this event.” High-intensity sonar may have caused the mass stranding in the Bahamas, the report conceded, but that was a different kind of high-intensity sonar operating in “unique” waters. Reynolds had encountered this tactic of “compartmentalization” before, during his seven-year fight to keep PG&E from bringing its Diablo Canyon nuclear power plant online. Yes, there was a partial core meltdown at Three Mile Island, PG&E admitted, but that was a Babcock & Wilcox reactor. Our Westinghouse reactors are safe nuclear technology.
Reynolds believed that he didn’t have to prove that low-frequency sonar was as dangerous to whales as the midfrequency sonar used in the Bahamas. He simply needed to use Balcomb’s eyewitness account to amplify the judge’s doubts about the safety of the Navy’s new sonar system. What Reynolds couldn’t predict was how a judge would weigh Balcomb’s testimony against the expert scientists and highly decorated fleet commanders that the Navy would bring to court. Assuming, of course, that Balcomb was willing to testify.
• • •
Balcomb had no hesitation about working with NRDC on its sonar lawsuit. He wanted to help publicize the interim report’s findings, since, as Gentry predicted, there was no final report in the offing, and the Navy and Fisheries had succeeded in burying their interim report in the news graveyard of New Year’s Eve. He welcomed the chance to testify in an open courtroom, rather than at a press conference or in a closed-door agency meeting.
On a personal level, collaborating on a high-impact legal case offered Balcomb a way to reconnect with his father, who’ d spent his legal career trying water rights cases in Colorado, including a successful argument before the US Supreme Court. Balcomb hoped that his father might finally signal his approval, or at least his acknowledgment that his son’s obsessive chase after whales had finally added up to something.
By 2002, “Blue” Balcomb had retired and moved into a creekside home in Arizona. Father and son met over lunch in the dining room of a local golf course. Though now in his eighties, with bad knees and a heart condition, Blue still had a piercing gaze and an upright posture.
While sipping their soup, they shared notes on how much the Southwest had changed in the 50 years since they’ d each moved away. Over dessert, Balcomb told his father about the written declaration he’ d prepared for NRDC’s lawsuit and the oral testimony he planned to give in court. He explained the sonar case as best he could, though his legal lexicon was limited, and he struggled to answer some of his father’s questions about the relevant statutes at issue. Balcomb showed him copies of the interim report and the Bahamas Journal article, which Blue flipped through while he finished his fruit cup. Then he stacked the documents in a neat pile and pushed them back across the table.
“I know you’re trying to do a good thing,” Blue said, shaking his head, “but you’re on the wrong side of this fight. God and country come first.”
Balcomb wanted to ask him what God had to do with it. He wanted to remind his father that he wasn’t the only one who’ d served his country in uniform. Instead, he appealed to Blue’s respect for due process, for equal justice under the law, even for legally protected wildlife. Surely he didn’t think the Navy was above the law. No one was.
“The law isn’t the point,” Blue insisted, tapping the table for emphasis with the butt of his spoon. “Not during wartime.” If Ken really cared about justice, Blue said, he’ d get off the Navy’s back and let it do its job, which was to hunt down the bastards who’ d attacked America on its own soil. They crashed a passenger plane into the Pentagon, for chrissakes!
Balcomb started to explain about the whales that had beached in the Bahamas; about all the whales that had never been seen again after the sonar exercises. When his father just stared back at him and shook his head, Balcomb realized that he’ d come on a fool’s errand. He should have known better than to expect a former Marine and lifelong hard-ass like Blue to put his son before his conservative politics. Before God and country.
Balcomb steered the conversation back to neutral ground. He didn’t want to end this visit, perhaps their last, with an argument. They talked about Arizona’s new baseball team, the Diamondbacks, who had beaten the Yankees in the World Series the previous fall. Blue said the D-backs would have to trade for a better relief pitcher if they hoped to make the playoffs this season, and Balcomb said he was probably right. When he said he needed to be heading out, Blue thanked him for making the trip. Balcomb collected his papers, shook his father’s hand, and said good-bye.
• • •
Reynolds and his team canceled or cut short their summer vacations. They sprinted through July and early August, working nights and weekends to complete their complaint and accompanying motion for an injunction, including a 100-page brief and thousands of pages of supporting declarations and exhibits.
On August 8, 2002, they filed suit against Fisheries and the Navy on behalf of NRDC and its co-plaintiffs, asking the court to reject the Fisheries permit as illegal and to issue a preliminary injunction to prevent the Navy from deploying Low Frequency Active sonar. Reynolds decided to file in San Francisco, where he calculated their chances were greatest to draw a sympathetic judge.
It was still a game of chance. Of all the variables that can determine the success or failure of a lawsuit, none may be more crucial than
the judge assigned to hear the case. And nothing better embodies the unpredictable outcome of litigation than “the wheel.” In a tradition dating back to colonial times most federal courts assign judges to cases by spinning a wheel—or, more precisely, turning a solid wooden box with a crank, like a bingo cage—before withdrawing a sealed envelope with the name of one of the judges on the court’s panel.
NRDC drew Magistrate Judge Elizabeth Laporte on the wheel. As soon as Reynolds heard the news, he dug into Judge Laporte’s background. She had a reputation as ideologically moderate, smart, thorough, and fair minded. He knew their case presented difficult legal issues, so he was glad to have a judge who would be focused on the law rather than on politics. Before becoming a magistrate, Laporte had been a partner in a private law firm and then ran the tobacco unit in San Francisco’s Office of the City Attorney. Reynolds felt good about her background, reasoning that she had litigation experience in matters of scientific complexity, presented through expert testimony. And perhaps it wouldn’t hurt that she was once a summer associate at Sabey’s firm, Morrison & Foerster.
Judge Laporte promptly scheduled the court hearing in San Francisco for October 18, with briefs due by the middle of September.
Then, just weeks before the hearing—not long after Reynolds and his team had submitted their opening brief—another population of beaked whales washed ashore 6,000 miles from California.
SEPTEMBER 24, 2002
Canary Islands, Spain
Early-rising tourists on the islands of Lanzarote and Fuerteventura emerged from their cabanas to find 14 beaked whales stranded on the shore. Throughout the day, the vacationers did their best to shield the whales from the sun and keep them hydrated with wet towels. But by sunset, all the whales had died on the beach.
Clearly visible on the horizon were dozens of NATO warships from member nations participating in joint naval exercises. The archipelago of volcanic islands off the Atlantic coast of Morocco was a frequent site for sonar trainings by NATO and Spanish navies. As in the Bahamas, the steeply sloped underwater canyon abutting the Canary Islands provided an ideal setting for antisubmarine “choke point” sweeps. Between 1985 and 1991, there had been four mass strandings of beaked whales in the Canary Islands, all in close proximity to naval exercises using antisubmarine sonar.
War of the Whales: A True Story Page 33