President Bush has bucked a court order by exempting Navy exercises off Southern California from certain safeguards designed to protect whales and dolphins from mid-frequency active sonar.
REED SAXON / Associated Press
A gray whale dived off the coast of Palos Verdes Peninsula yesterday. In recent years, a growing number of studies have shown that sonar harmed marine mammals during military exercises worldwide.
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A federal judge had set a national precedent Jan. 3 when she announced the sonar restrictions, the strongest to date. Bush's exemption, announced yesterday, also set a precedent: California officials said it was the first time a president has overridden the U.S. Coastal Zone Management Act of 1972, which allows states to review federal activities that affect their coastal resources.
The president's memo said sonar use is “in the paramount interest of the United States . . . (and) essential to national security.”
Based on Bush's action, federal lawyers asked the 9th U.S. Circuit Court of Appeals to sign off on the presidential exemption and a related waiver by tomorrow afternoon, ahead of Navy drills planned for next week.
Late yesterday, the appellate court sent the case back to the judge who ruled on it two weeks ago, along with orders for her to consider the newest developments. The 9th Circuit would handle further appeals, which are expected no matter what the lower court decides.
The outcome of the case could affect military operations nationwide.
Navy commanders argue that they already follow 29 measures for reducing sonar injury or death to marine mammals and that more limits would jeopardize critical training. Environmentalists and the California Coastal Commission said the stepped-up protections would still allow for effective practice.
“(This) has been a really salient part of the litigation all along – the clash between the environment and national security . . . and how you reconcile them in instances where there is conflict,” said Carl Tobias, a constitutional law professor at the University of Richmond.
The Natural Resources Defense Council, a national environmental group that initially sued the Navy over its sonar use, vowed to fight the Bush administration's bid to avoid court-ordered marine protections. Analysts were uncertain about how compelling of a case the conservationists could present, but a spokesman for the resources council said its lawyers are polishing arguments to keep the enhanced sonar restrictions intact.
“This is not a national security issue. The Navy doesn't need to harm whales to train effectively with sonar. It simply chooses to for the sake of convenience,” said Joel Reynolds, a senior attorney for the council in Santa Monica.
Adm. Gary Roughead, chief of naval operations, said yesterday's moves were needed to ensure the Navy's ability to teach sailors how to detect submarines and other threats to its ships.
“We cannot in good conscience send American men and women into potential trouble spots without adequate training to defend themselves,” Roughead said in a statement.
Navy officials said the waters off San Diego County and other parts of Southern California have features important to sonar operations. These include submerged land forms, extensive ranges and airfields. Roughly half the Navy's fleet will receive “graduate level” training in the region before being deployed, the Pentagon said.
In recent years, a growing number of studies have shown that sonar harmed marine mammals during military exercises worldwide. Sonar-related problems include fatal strandings, decompression sickness and disruption of normal activities such as mating and foraging.
On Jan. 3, U.S. District Judge Florence-Marie Cooper allowed the Navy to continue its training program off Southern California through January 2009 as long as it took stronger precautions.
For instance, she ordered the Navy not to send out mid-frequency active sonar within 12 nautical miles of the coastline and to turn off the sonar when marine mammals are within 2,200 yards. She also required the Navy to hire specially trained lookouts to spot whales, dolphins and other marine mammals before and during drills.
In her ruling, Cooper said the Navy's own research shows that its Southern California exercises “will cause widespread harm to nearly 30 species of marine mammals.”
On Monday, Cooper denied the Navy's request to let the appeals process play out before her order took effect. “The Navy has employed mitigation measures in the past without sacrificing training objectives,” she said.
Navy brass said in papers made public yesterday that they had agreed with the White House to “alternative arrangements” to protect sea life until they complete an environmental review of sonar later this year. Those steps include adopting more thorough reporting procedures, increasing public participation in environmental reviews and promising to make other changes based on what happens during future sonar exercises.
“These alternative measures, in addition to the 29 protective measures already in place, will ensure our operating forces can train realistically without harming the environment,” Navy Secretary Donald C. Winter said in a statement.
Yesterday's announcements by Bush and the Navy sparked opposition from politicians such as Sen. Barbara Boxer, D-Calif.
“Unfortunately, this Bush administration action will send this case right back into court, where more taxpayer dollars will be wasted defending a misguided decision,” Boxer said in a statement.
In Sacramento, Assemblyman Pedro Nava, D-Santa Barbara, pledged to seek official criticism of the president by the Assembly and the state's Ocean Protection Council.
The California Coastal Commission also faulted the White House.
“It's just another example of overriding environmental protections under the banner of fear,” said Peter Douglas, the commission's executive director.
Douglas said his agency has run out of legal options to force safeguards for marine mammals under the Coastal Zone Management Act.
“This is the end of the line,” he said.
Daniel Hinerfeld, a spokesman for the Natural Resources Defense Council, said the Navy's latest request for court approvals can be challenged on several grounds. Among other things, his group will argue that the National Environmental Policy Act doesn't offer an “escape clause” for the president.
“(It) does not . . . allow the executive branch to just . . . say we are not going to abide by these provisions,” Hinerfeld said.
Mike Lee: (619) 542-4570; mike.lee@uniontrib.com
