Cetacean Society International
Whales Alive! - Vol. XII No. 4 - October 2003
By William Rossiter
The U.S. Navy's LFA (Surveillance Towed Array Sensor System Low Frequency Active Sonar) was barred on 26 August 2003 from full deployment by U.S. Magistrate Judge Elizabeth Laporte of San Francisco. The Judge also ordered the Navy to negotiate limits on the LFA's use with conservation groups who had sued over its deployment, so as to reduce the system's potential harm to marine mammals and fish. Plaintiffs are represented by the international firm of Morrison & Foerster, and include CSI, the Humane Society, the League for Coastal Protection, the Ocean Futures Society and its president, Jean-Michel Cousteau, under the leadership of the Natural Resources Defense Council (NRDC). Previously Judge Laporte in October 2002 had granted a request by the plaintiffs for a temporary injunction to restrict LFA deployment under an inadequate authorization permit.
The 73-page ruling and opinion (http://www.cand.uscourts.gov/) found that the Navy's plan to deploy the LFA violates numerous federal environmental laws and could endanger whales, porpoises and fish. Judge Laporte also found that a permit issued to the Navy by the National Marine Fisheries Service to deploy LFA sonar violates the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), because it did not adequately assess or take steps to mitigate the risks posed by the system to marine mammals and fish.
Judge Laporte found that, "endangered species, including whales, listed salmon and sea turtles will be in LFA sonar's path. There is little margin for error without threatening their survival... Absent an injunction, the marine environment that supports the existence of these species will be irreparably harmed." The Judge stopped short of a complete ban, accepting that the Navy needs the LFA to detect some submarines, so as to balance national security needs in peacetime with environmental safeguards for "whales, dolphins and other magnificent mammals that still live in the ocean". "Unfortunately, the populations of many of these creatures, once abundant, have shrunk, and some are on the verge of extinction," Judge Laporte wrote. "Other precious species, like certain salmon and sea turtles, also are in peril of disappearing from the earth forever."
Joel Reynolds, senior attorney and director of the Marine Mammal Protection Project of the NRDC, said, "Today's ruling is a reprieve not just for whales, porpoises, and fish, but ultimately for all of us who depend for our survival on healthy ocean," and "The decision recognizes that both national security and environmental protection are essential. It recognizes that during peacetime, even the military must comply with our environmental laws, and it rejects the blank-check permit that would have allowed the Navy to operate LFA sonar virtually anywhere in the world."
Led by NRDC, the plaintiffs are negotiating with the Navy on terms of a permanent injunction to define the limits for LFA testing and training. LFA operations would not be restricted during war or "heightened threat conditions," which would be determined by the military.
Infuriated by this handicap, the Navy continues to push the Department of Defense and Congress to legislate relief from a broad range of environmental restrictions, such as the fundamental laws above, as previously reported in Whales Alive!
"Gas-bubble lesions in stranded cetaceans: Was sonar responsible for a spate of whale deaths after an Atlantic military exercise?" was published in the scientific journal Nature of 9 October, pages 575-576. The paper was a collaborative effort by scientists and veterinarians in the UK and Canary Islands, addressing the issues first presented at May's meeting of the European Cetacean Society, and reported on in July's Whales Alive! The research found that "There are spatial and temporal links between some mass strandings of cetaceans - predominantly beaked whales - and the deployment of military sonar. Here we present evidence of acute and chronic tissue damage in stranded cetaceans that results from the formation in vivo of gas bubbles, challenging the view that these mammals do not suffer decompression sickness." The full paper is available from CSI.
The USS Shoup's active sonar transit of Washington's Haro Strait was recounted at a State House Committee hearing on 2 October, five months after the event coincided with apparently harassed cetaceans and stranded harbor porpoises. A selected team of experts is still studying the remains of the dead porpoises for evidence of acoustic trauma, and the Navy still denies any connection. Some of the mid-range sonars the Shoup uses have been implicated in the deaths of cetaceans elsewhere, as reported in CSI's Whales Alive!
The European Coalition for Silent Oceans, representing over 400,000 European citizens, has petitioned the European Parliament to act to limit the military use of high-intensity active sonar. The Coalition, led by ASMS, the Swiss Marine Mammal Protection group, http://www.asms-swiss.org/, built on the increasing concern expressed by official agencies in response to several events this year. The Cetacean Specialist Group of the IUCN-World Conservation Union said: "Military operations involving the use of high-intensity sonar, explosive devices, and other intense noise sources pose both lethal and sub-lethal threats to cetaceans." They added particular concerns about "the development by several navies of very low-frequency sonars, known as `LFA' in the United States, with detection ranges, and thus potential effect ranges, of several hundred kilometers." LFA-type systems are being developed or used by Australia, Canada, France, Germany, Great Britain, and the Netherlands. ASMS also commissioned The Use of LFA Sonar under International Law, a legal analysis by PD Dr. Alexander von Ziegler, designed to "lay down some of the most important and relevant obligations of the States under international law with regard to the preservation, protection and/or exploitation of marine environment and to analyse whether the implementation of the LFAS technology constitutes a violation of any such obligations."
The analysis concludes that the LFA, by the damage it does and by ignoring the precautionary approach, violates international law, specifically certain Articles of the UN Law of the Sea treaty, Convention on Biological Diversity, Convention on the Conservation of Migratory Species of Wild Animals; Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, Convention on the Conservation and Management of Fishery Resources in the Southeast Atlantic Ocean, EX Environmental Assessment Directive, and the Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Yes, that was one sentence! The analysis is available from either ASMS or CSI.