In particular, the preliminary injunction will extend the coastal buffer zone beyond 12 nautical miles in those coastal areas where LFA sonar can effectively operate at that distance, and will include additional, interim Offshore Biologically Important Areas that are reasonable candidates for permanent status . . . Defendants have acknowledged that they can restrict operations in certain parts of the ocean, during particular seasons, where LFA-equipped vessels are more likely to encounter marine mammals and endangered species. A tailored injunction will help ensure that they do so in compliance with the statutory mandates, including the Marine Mammal Protection Act’s mandate that LFA sonar has only a negligible impact on small numbers of marine mammals.
Accordingly, the parties are ordered to meet and confer on the precise terms of a preliminary injunction consistent with this opinion.
It Is So Ordered.
Judge Elizabeth D. Laporte
United States District Court for the Northern District of California
“It is so ordered,” Wetzler intoned with quiet satisfaction.
Reynolds returned to page one and reread the whole decision. He was impressed by the way that Laporte constructed her ruling to defend it against being overturned by a higher court. She deferred to the military’s national security concerns, as well as to the government’s scientific experts, but she managed to rule against the Navy and Fisheries on almost every substantive issue. She was careful to rule within the limits of the statutes, while taking full advantage of protections that each law afforded marine mammals.
Reynolds still had to negotiate the terms of the injunction. Judge Laporte had directed NRDC and the Navy to meet with a court-appointed mediator and reach a settlement as to where and when LFA sonar could operate and what safeguards would have to be implemented.2 As important as NRDC’s briefings and oral arguments had been to securing an injunction, the outcome of the settlement negotiations would be the most tangible measure of its success in limiting the risks of LFA sonar to marine mammals. Reynolds took the lead for the plaintiffs in the settlement talks, as he had more historical knowledge of the case—its origins, legal underpinnings, and technical aspects—than anyone on either side.
The mediation was a multistage, multiday process that included opening statements, arguments, and counterarguments. From the start, Reynolds’ strategy was to make the Navy declare the precise areas where it needed to operate for reasons of national security. The Justice Department lawyers balked at this, insisting that the negotiations begin from the 75 percent of the world’s oceans that Fisheries had initially approved. That was a nonstarter for Reynolds. Negotiations stalled.
Reynolds held important leverage in the negotiations. Without a settlement on geographic and seasonal exclusion areas, the Navy was barred by the preliminary injunction from operating LFA sonar anywhere. On the other hand, if he refused to agree to some sort of compromise, the judge would impose her own resolution.
For their part, the Department of Justice lawyers continued to behave as if they expected the Navy to eventually get its way, as it had always done. Under pressure from the mediator, they eventually offered to limit the geographic scope of deployment to the Pacific Ocean—65 million square miles, or fully half of the world’s ocean area. For Reynolds, that was another nonstarter. They were once again at an impasse.
LFA sonar’s program director, Joe Johnson, was beside himself with frustration. Reynolds may have waited seven years for his day in court, but Johnson had been working on Low Frequency Active sonar since its inception in the mideighties, and he’ d been directing the program since the midnineties. He and Bob Gisiner spent years building an Environmental Impact Statement that they hoped would stand up to any legal challenge.
Then he’ d suffered through the aftermath of the Bahamas stranding, watching the Navy, in his opinion, make a mess of the investigation and look guilty in the process. From Johnson’s perspective, the Navy had an agenda from the start of the investigation—to keep operating as it wanted without interference from regulators or watchdog groups—and it had constructed a narrative of the stranding that would sustain that agenda. But the Navy’s initial denials, its delaying tactics during the investigation, and the interim report with its backhanded admission of culpability only undermined the Navy’s credibility and tainted Johnson’s LFA sonar program.
Johnson had been forced to sit in court and watch NRDC dance circles around the Justice Department lawyers. Now those same government attorneys were keeping his sonar vessel, the Cory Chouest, locked up in port while they postured behind legal concepts that Judge Laporte had already ruled against. The Justice Department’s entire investment in Navy sonar was the six months it had spent arguing and losing its case. Johnson wasn’t going to let them play chicken with NRDC over the fate of a program he’ d nurtured for 15 years. It was high time, he believed, to get back out on the water and operate.
Johnson knew that if Steve Honigman had still been the Navy’s general counsel and Richard Danzig the Secretary of the Navy, the settlement talks would be over by now. But Danzig and Honigman were long gone. The new Navy Secretary, H. T. Johnson, was a former four-star Air Force general who’ d raised a lot of money for Bush’s 2000 campaign. He called the Secretary and explained the urgent need to reach a settlement that would allow the Navy to operate LFA sonar in strategic areas. Johnson was relieved when the Secretary gave him his proxy to cut a deal with NRDC.
Joe Johnson may have had another motive for intervening in the settlement negotiations, to which neither the Justice Department nor NRDC was privy. Once the preliminary injunction was ratified by the judge, there would be a “discovery” period during which NRDC would gain access to internal emails and other communications between Fisheries and the Navy during the permit application and review period. Johnson may have assumed that NRDC would discover, among other things, that the Office of Naval Research and its contractors had engaged in inappropriate collaboration on Fisheries’ drafting of the “final rules” of the permit. There was also a clear email trail showing that the Navy had failed to disclose a British navy study that concluded that low-frequency sound was likely damaging to fish populations. And Johnson himself had conveyed strong doubts, in writing, about the viability of the Navy’s 180-decibel safety threshold. Once brought to light, those incriminating documents would torpedo the Navy’s already suspect credibility and drive the judge even further into NRDC’s camp. Better to negotiate terms now, Johnson may have reasoned, while he still had a quantum of leverage.
Johnson and Reynolds sat down together, and within a few hours, they cut to the nub of the issue: the Navy wanted to be able to operate wherever and whenever it chose. But where did it need to deploy LFA sonar for national security? Johnson designated the Navy’s “need to operate” area along the eastern seaboard of Asia and in the deep ocean waters off the Philippine Sea, just outside the Taiwan Strait. Now that China had supplanted the Soviet Union as America’s primary naval rival in the Pacific, the US Navy wanted to bring every possible system to bear on monitoring China’s offshore waters.
The calculation for Reynolds was straightforward: Joe Johnson was willing to settle for between 1 percent and 2 percent of the world’s oceans, rather than the 75 percent that Fisheries had granted. He was also willing to agree to seasonal and geographic exclusions to avoid migration routes, feeding areas, and breeding grounds for the West Pacific gray whales and humpbacks, and to exclude the marine protected area around the Mariana Islands. By the end of the day, the two sides had hammered out the terms of a settlement agreement, which Judge Laporte quickly approved.
After a lengthy discovery period—which indeed uncovered the incriminating trail of inappropriate emails between the Navy and Fisheries3—Judge Laporte issued a permanent injunction extending the terms of the negotiated settlement for five years.
The next day, Reynolds convened a press conference on the Santa Monica bluffs overlooking the Pacific Ocean. Flanked by Jean Michel Cousteau, Internat
ional Fund for Animal Welfare president Fred O’Regan, and actor and marine mammal activist Pierce Brosnan, Reynolds announced the launch of an international campaign to stop the proliferation of high-intensity sonar in oceans around the world.
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Counterattack
It didn’t take long for the Navy to regroup and counterattack. If the courts ruled that the Navy was violating environmental statutes, it could go to Congress to change the laws. And within months of the Low Frequency Active sonar decision, the Navy did just that. In rapid succession, the Pentagon’s allies on Capitol Hill introduced and passed amendments to the Marine Mammal Protection Act that deleted the “small take” and “specified geographic region” requirements and added a “national security exemption” that the Secretary of Defense could invoke at his sole discretion. Hoping to ride a wave of promilitary sentiment in Congress, the Defense Department also proposed national security exemptions to the Clean Water Act, the Clean Air Act, and the Migratory Bird Treaty Act.
Meanwhile, NRDC aimed to make up the ground it lost on Capitol Hill by mobilizing the advocacy and scientific communities. Winning the sonar case, Reynolds learned, turned night into day when it came to recruiting partners. Previously unpersuaded conservation groups were now eager to join NRDC’s campaign. Many of the fence-sitting scientists were emboldened to join the fight against high-intensity sonar.
NRDC’s sonar victory, and media reports about it, also raised public awareness of the threat that military sonar posed to whales. Now, when whales stranded on beaches, people trained their sights on the horizon line. With increasing frequency, they noticed battleships conducting midfrequency sonar exercises:
In June 2004 six beaked whales stranded in the Gulf of Alaska during “Northern Edge” joint exercises between the US and Canadian navies.
In July 2004 four beaked whales stranded during “Majestic Eagle” NATO exercises in the Canary Islands, not far from the site of the 2002 stranding.
Later that same month, during US-Japanese joint exercises conducted near the Hawaiian island of Kauai, 200 melon-headed whales fled into Hanalei Bay and milled about for hours in tight, frantic circles. Local volunteers in kayaks and canoes were eventually able to herd them back out to open water.
In January 2005, 37 whales stranded along North Carolina’s Outer Banks following US Navy sonar exercises.1 Scientists working under federal contract conducted necropsies and tissue analyses to determine the causes of death. The government refused to release the scientists’ findings despite a Freedom of Information Act lawsuit filed by NRDC.
On January 26, 2006, following midfrequency sonar exercises by the British Royal Navy, four Cuvier’s beaked whales stranded on the Almerían coast of southern Spain, with the same suite of bends-like symptoms seen in whales that stranded in the Canary Islands in 2002 and 2004.
But of all the mass strandings during the period following the LFA sonar case, the one that gained the most attention and notoriety occurred—once again—in Ken Balcomb’s front yard. For the second time in three years, Balcomb documented and publicized a mass stranding during US Navy sonar exercises.
MAY 5, 2003
Smugglers Cove, San Juan Island, Washington
After testifying at NRDC’s sonar hearing in October, Balcomb had returned to San Juan Island, content to resume his orca survey and leave the courtroom dramas to the lawyers.
The whales returned to Puget Sound in April, on schedule. Just before noon on May 5, 22 members of J Pod, ranging in age from 60 years to three months, were foraging for salmon in the cove behind Balcomb’s home and research station. Standing on his deck and watching the whales through the zoom lens of his video camera, Balcomb could see a harbor porpoise and a minke whale hunting alongside the orcas. Two whale-watching boats bobbed in the water nearby. He switched on the underwater hydrophones to hear if he could distinguish the orcas’ chirping from the harbor porpoise’s and minke whale’s calls.
Within a few minutes, the three-way cetacean conversation was overwhelmed by pulses of loud, shrieking noise. Balcomb immediately recognized the sound as sonar—probably midfrequency, to judge by the whining pitch of the “pings.” He scanned the horizon with the big-eye binoculars mounted on his deck and soon locked in on the outline of a battleship 12 miles offshore in Haro Strait, the narrow channel separating San Juan Island from the Canadian mainland. It was too far away for him to tell whether it belonged to the Canadians or to the US Navy.
Back in the cove, J Pod grouped tightly together and hovered close to shore. Clearly agitated, they milled in circles, first in one direction and then the other. In decades of observing killer whales in the cove, Balcomb had never witnessed this kind of panicked behavior. As the battleship drew closer to the mouth of the cove, the intensity of the sonar noise increased, along with the animals’ distress. The minke whale took off like a shot toward the far end of the cove. The harbor porpoise zoomed across the surface in the same direction. The mouth of the cove was 20 miles wide, but the pod of killer whales seemed to be trapped inside. They broke into two groups and began slapping their tails against the surface.
May 5th, 2003: Smuggler’s Cove, San Juan Island, Washington. Ken Balcomb photographs and videotapes the guided-missile destroyer USS Shoup as it conducts a sonar sweep of Haro Strait. Foreground: whale-watching vessels and the orcas of J Pod.
When the warship approached to within three miles of shore, Balcomb could make out the markings on its side. It was a guided-missile destroyer, the USS Shoup. Balcomb called the US Coast Guard and the regional Fisheries office and told them they needed to get hold of the Shoup’s commander and tell him to shut off its sonar. Twenty minutes later, the sonar storm subsided.
Balcomb called a Seattle TV station, KOMO 4 TV, which dispatched a helicopter news crew to the scene. When it contacted the Navy for a response to the incident, a spokesman denied that any Navy vessels were operating in the strait. That evening, KOMO 4 broadcast Balcomb’s video of the Shoup in Haro Strait and the audio of its piercing sonar.* In the foreground, the killer whales looked tormented, and many of the whale watchers nearby were hysterical. Interviewed for the evening news, they described the terrifying din of the sonar, which was audible in the air above the water.
By the next morning, the Navy amended its statement. For five hours the previous day, the Shoup had conducted minesweeping exercises in the Strait of Juan de Fuca and Haro Strait while transmitting 235 decibels of midfrequency sonar. The sound Balcomb recorded on tape was the Shoup’s SQS-53C sonar. The Shoup’s Destroyer Squadron 9, operating out of the naval station in Everett, Washington, often conducted maneuvers in Puget Sound. But after the Bahamas stranding and the interim report, Balcomb assumed that the Navy knew better than to conduct sonar exercises in a narrow channel. Especially inside Haro Strait, which was world famous as a whale-watching destination. Apparently, the Shoup’s commander didn’t get the memo.
The day after the incident, dead harbor porpoises began floating ashore. Ten landed on the US coastline, and six stranded on the Canadian side of the border. When a freshly dead harbor porpoise drifted into nearby False Bay with blood leaking from its eye, Balcomb wrapped the animal in plastic and stowed it in the six-foot freezer chest in his basement.
Balcomb’s video of the Shoup incident quickly went viral on the internet. Whale watchers were used to seeing wild orcas knifing majestically through the water, not cowering in the shadow of a US destroyer. Most people had never heard the sound of military sonar, and they were horrified to see a US Navy destroyer bearing down on a pod of terrified whales.
The ensuing uproar over the strandings and the videotape forced Fisheries to launch an investigation. Soon six porpoises lay in a freezer at the regional Fisheries headquarters. Fisheries wanted to CT scan the animals before necropsy but said it couldn’t reserve time on a local CT scanner for two months. Balcomb found a private clinic that offered to scan his harbor porpoise as soon as he could bring it over. The scans, which he copied before turn
ing them over to Fisheries along with the frozen porpoise, showed the same signs of acoustic trauma and hemorrhaging around the brain that he’ d seen in the scans of the Bahamas specimens.
Fisheries put Darlene Ketten in charge of its forensic investigation and barred Balcomb from the necropsies, even though he had contributed one of the specimens. He showed up at Fisheries the day of the necropsies anyway and was blocked from entering by two guards. So he stood in the press gallery and observed the proceedings through a telephoto lens.
In October the Navy’s Pacific Fleet published a report exonerating itself of culpability in the Haro Strait stranding. A panel of experts from the Navy’s Marine Mammal Training Program, led by Sam Ridgway, had reviewed Balcomb’s videotape of the incident and suggested—in defiance of the videos’ alarming visual and audio evidence to the contrary—that the whale-watching boats were more likely to have distressed the killer whales than the Shoup’s sonar transmissions. The Navy report concluded: “The Shoup operated its sonar on 5 May 2003 in a manner consistent with established guidelines and procedures.”2
Months later, Fisheries released its report on the stranding incident, citing “inconclusive evidence of causation,” due in part to the “advanced stage of decomposition” of the specimens.3 According to a local colleague of Balcomb’s who participated in the necropsies, the Fisheries freezer had been set to “auto-defrost” mode, so the specimens had been continuously thawing and refreezing during the two months between the stranding and the necropsies. The reports by the Navy and Fisheries were widely perceived as flying in the face of reality—and of the most damning documentation ever preserved on videotape of whales caught in the cross fire from a sonar training exercise.
• • •
Sonar wasn’t the only man-made threat to the Southern Resident Community of orcas. Two decades after the wild capture spree of the sixties and seventies, the killer whales had rebounded to a healthy and stable population of about 100. Then, in the nineties, the community went into steep decline. With their wild salmon prey dying off from dammed rivers and overforested streambeds, orcas were forced to feed on contaminated bottom fish. Fecal samples from killer whales revealed the highest concentrations of toxins, including PCBs and the banned insecticide DDT, found in any animals ever tested. By the turn of the century, the Southern Resident Community had declined to fewer than 80 whales.
War of the Whales: A True Story Page 35