Whales and Dolphins Defeat Navy in High-Stakes War Games

A federal judge rules that allowing marine mammals to be subjected to potentially deadly sonic blasts violates environmental law.

(Photo: David McNew/Getty Images)

Apr 1, 2015· 2 MIN READ
David Kirby has been a professional journalist for 25 years. His third book, Death at Seaworld, was published in 2012.

Federal wildlife officials broke the law by permitting the United States Navy to harm whales, dolphins, and other marine mammals with sonic booms and sonar nearly 10 million times, a federal judge ruled on Tuesday.

The decision was a major victory for environmental groups that sued the Navy and the National Marine Fisheries Service in U.S. district court in Hawaii to restrict the use of sonic detonations in huge swaths of the Pacific Ocean off Southern California and surrounding the Hawaiian islands. The two regions are home to 39 marine mammal species, some of them listed as endangered or threatened.

The exercises will ultimately emit up to 90,000 hours of sonar frequencies and more than 260,000 underwater explosions, according to the plaintiffs, which included EarthJustice, the National Resources Defense Council, and other environmental and animal welfare groups.

“Under its five-year plan for training and testing, the Navy is permitted to harm whales, dolphins, and other marine mammals nearly 9.6 million times,” NRDC said in a statement. “These harmful impacts include millions of instances of temporary hearing loss and significant disruptions in vital behaviors, such as habitat abandonment, as well as permanent hearing loss, permanent injury and more than 150 deaths.”

The fisheries service “violated multiple requirements of the Marine Mammal Protection Act and the Endangered Species Act when agreeing to the Navy’s plan,” NRDC added.

Despite that, NMFS determined that the impact on marine mammals would be minimal. But federal judge Susan Oki Mollway disagreed with that rosy assessment.

“The government actions that are challenged in this case permit the Navy to conduct training and testing exercises even if they end up harming a stunning number of marine mammals,” Oki Mollway wrote in her ruling.

“While NMFS has found that the Navy’s proposed activities will have a ‘negligible impact’ on affected species or stock,” she added, “that finding is so insufficiently supported as to be arbitrary and capricious.”

Oki Mollway ruled that NMFS "failed to use the ‘best scientific evidence available" and did not analyze the actual effects the exercises would have on many marine-mammal species.

“This is a monumental victory because it went straight to the heart of the underlying approach that agencies have used for downplaying harm and drawing conclusions that aren’t supported by the record,” said Zak Smith, an attorney for NRDC’s Marine Mammal Protection Project.

“This court has issued a wholesale rejection of NMFS’ approach to how they think these laws work,” he added. “And there is no easy fix. They now have to go back and completely redo their assessment.”

Navy officials did not respond to a request for comment.

NMFS spokesperson Jennie Lyons said in an email that the agency is “reviewing the judge's decision [and] evaluating what this means as far as next steps.”

Those next steps will likely include a court-mandated remedy to the problem, Smith said, adding that he hoped to discuss the details with federal officials in the coming weeks.

“The best available means to protect marine mammals is to separate them from harmful effects in so-called hot spots,” or biologically important areas and points in time, Smith said. Such areas include places where marine mammals feed, migrate, and breed.

“We do want to build in flexibility so that the Navy can meet national security needs,” Smith added.

The ruling could also place new restrictions on the use of sonar and other noise-generating activities elsewhere, including oceanic studies on climate change, tsunami threats, and energy exploration, Smith said.

“The government used the same approach of assessment in those cases that this court found illegal,” Smith said.

Rejecting the Navy exercises “can definitely mean that [NMFS] will have to go back and assess whether or not it is truly protecting all marine mammals, as Congress intended with the law,” he said. “They certainly weren’t doing so here.”