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The State

Judge Bars Use of Experimental Sonar in Tracking Gray Whales

Ruling ends test plans, faulting scientists for lack of a full study of effects on the marine mammals that 'finder' was designed to help.

January 25, 2003|Kenneth R. Weiss | Times Staff Writer

A federal judge in San Francisco on Friday barred scientists from tracking gray whales with experimental sonar along the California coast, because the U.S. government failed to properly study whether the experiment was safe.

The ruling ends the planned experiment to develop a "whale-finding" sonar system that scientists hoped would be used by the oil industry, the Navy and others to spot whales before they come into harm's way from underwater explosions and from the extremely loud sonic blasts emitted by warships.

A collection of animal-welfare groups that filed suit argued that the experiment itself would stress the gray whales, particularly newborn calves and pregnant females, as they migrate south this month from their arctic feeding grounds to warm lagoons in Baja California, where they nurse their young.

The environmentalists argued that the National Marine Fisheries Service failed to conduct the proper environmental reviews to prove that the "whale-finding" sonar did not pose a significant risk to the whales.

U.S. District Court Judge Samuel Conti sided with the environmentalists and ordered biologist Peter Tyack and a boatload of other researchers from Woods Hole Oceanographic Institution in Massachusetts to refrain from conducting the experiments off the San Luis Obispo County coastline.

In a 26-page opinion filed Friday, Conti also scolded the National Marine Fisheries Service for taking a shortcut in issuing a research permit to Tyack and for failing to perform the proper environmental evaluations.

The ruling was the third in recent months in which a San Francisco federal judge has halted or restricted sonic testing because of concerns about the impact on marine mammals.

Rebecca Lent, deputy director of the National Marine Fisheries Service, said the agency had done an analysis of the experiments and determined that they posed no significant risk to marine mammals.

"That's our job," Lent said, "to make sure these marine mammals are in good shape. This is our specialty. Sometimes it's not a matter of substance. This time, it sounds [as if] we may have been tripped up by process."

The Bush administration, in an appeal to cut red tape and streamline government action, is trying to reinterpret laws requiring environmental reviews so that more extensive studies are required only when activities could potentially cause major environmental damage. But these efforts are increasingly being tripped up in the courts, as in this case.

The result is that Tyack and his research associates, who have worked for months to prepare for the Navy-funded experiment, have been idled by a federal court order after they had booked and outfitted an expensive research vessel for weeks of sonar testing.

"It's very frustrating," Tyack said last week after Conti issued a temporary restraining order. That order evolved into a permanent injunction Friday. "The irony is that this whale-finder is specifically designed to protect whales from sonic work."

Tyack, who studies the behavior of marine mammals, said his idea was to develop a sonar system that would help the oil industry and Navy spot whales so they could halt underwater explosions, firing powerful air guns or much louder sonar systems. The Hawaii County Green Party, Australians for Animals and other groups were worried that the experiments themselves could pose a danger, particularly after gray whale populations dropped mysteriously in recent years -- from a high of 26,635 in 1998 to 17,414 last spring.

"It's clear that Dr. Tyack and the National Marine Fisheries Service were intending to use the gray whale like a laboratory rat," said Sue Arnold, president of Australians for Animals. "Given that there has been a catastrophic drop of 9,000 animals of this species, this decision has probably ensured its survival."

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