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Navy can use sonar, court says

Appellate ruling gives the go-ahead for training off the Southland coast, despite concerns that whales may be harmed.

September 01, 2007|Joe Mozingo | Times Staff Writer

A federal appeals court in San Francisco has given the U.S. Navy a temporary go-ahead to use high-powered sonar during nearly a dozen upcoming training exercises in Southern California waters.

Friday's ruling puts a temporary stay on an injunction ordered last month by a Los Angeles federal judge to stop the powerful bursts of sonar -- used to detect hostile submarines -- because they could "cause irreparable harm to the environment." Scientists have linked sonar use to mass whale die-offs.

A three-judge panel ruled 2 to 1 that U.S. District Judge Florence-Marie Cooper did not give adequate consideration to the public's interest "in having a trained and effective Navy."

"The safety of our whales must be weighed, and so must the safety of our warriors. And of our country," wrote Judge Andrew Kleinfeld of the U.S 9th Circuit Court of Appeals.

The ruling Friday is not the final say on the issue. Another 9th Circuit panel will hear more in-depth arguments to decide whether to reinstate the injunction or maintain the stay, which would allow the Navy to continue to use sonar until the lawsuit is settled. That hearing is scheduled for Nov. 5 in Pasadena.

The dissenting judge, Milan D. Smith, wrote that the Navy did not make a compelling case that the nation's security would be jeopardized if it took the same precautions to protect marine mammals that it used just last year in Hawaii as part of an earlier court settlement.

Unless "someone can demonstrate that the Navy jeopardized our national security and failed to properly train our involved military personnel [then]. . . it is hard to imagine why implementing some of those same environmental mitigation measures would do so now."

The suit was brought by the Natural Resources Defense Council, citing reports by scientists over the last decade tying mid-frequency active sonar to a number of mass whale strandings or panicked behavior after naval exercises in the waters off Greece, Hawaii, the Bahamas and elsewhere.

Smith, appointed by President Bush last year, said the suit to stop the Navy's sonar use is likely to prevail.

"This is a short-term stay to allow the court to review the merits in full," said Joel Reynolds, senior attorney for the plaintiffs. "The court will hear the matter on a highly expedited basis, and we look forward to that review."

The Navy, which has planned its next sonar exercise for this month, praised Friday's ruling.

"The ability to detect and track potentially hostile submarines is a critical skill that cannot be duplicated in the classroom or by simulation," said Navy spokesman Capt. Scott Gureck.

The Navy says more than 40 nations, including Iran and North Korea, use quiet diesel submarines that are best detected using bursts of mid-frequency sonar.

Adm. Robert Willard, commander of the U.S. Pacific Fleet, said in a statement, "The initial injunction left us in an untenable position of having strike groups needing this training and not being able to accomplish it."

Mark Matsunaga, a spokesman for the Pacific Fleet, said that in 40 years of sonar exercises in Southern California, no marine mammal had been stranded or injured. He said some of the measures the Navy had taken to protect whales in Hawaii rendered the exercises less effective.

He said one measure prohibited the use of active sonar within 12 miles of the coast, the very area where submarines can be hardest to detect and thus where sailors need the most practice. "We need to practice in the coastal areas because there's the most noise there," Matsunaga said.

Reynolds said the Navy offered no evidence that the measures were ineffective or significantly hindered its exercises. "They said it, but they couldn't prove it."

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joe.mozingo@latimes.com

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