U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

To Save Whales, 9th Cir. Strikes Down Navy Sonar Program

By sending out a wall of sound through the oceans, Navy sonar can detect enemy ships hundreds of miles away, day or night, in weather fair or foul. But that blast of sound can be damaging to the ocean's inhabitants, deafening whales and disturbing other marine mammals. Some marine mammals swim hundreds of miles to escape sonar, others may bleed from their eyes or ears, and some beach themselves on shore to get away from the harsh sounds.

And while the Navy's current peacetime sonar use makes efforts to reduce those impacts, it does not go far enough, the Ninth Circuit ruled on Friday, finding that government approvals for the sonar program violated the requirements of the Marine Mammal Protection Act.

Marine Mammal Protection and Incidental Take

The Marine Mammal Protect Act makes it a crime to injure, kill, harass, or otherwise "take" marine mammals, such as whales, seals, and dolphins. The MMPA does not ban all activities that could be injurious to marine mammals, however, allowing the National Marine Fisheries Service to issue "incidental take" authorizations for activities, like the Navy's sonar program, where take is an unintentional byproduct of the activity.

But that incidental take authorization comes with caveats. Such take must have a negligible impact on the species, and authorization must include mitigation measures meant to limit harm to the "least practicable adverse impact."

The 2012 Incidental Take Authorization

In 2012, NFMS issued an incidental take authorization for the Navy's low-frequency active sonar program. LFA sonar operates by sending bursts of sound through the ocean, for about a minute at a time, typically with an acoustic intensity of around 215 decibels. For comparison's sake, the loudest rock bands max out at about 130 decibels, according to Scientific American.

Concerned with the effect of those sounds on marine mammals, several environmentalist groups sued, including the Natural Resources Defense Counsel, the Humane Society of the United States, and Jean-Michel Cousteau, the son of famous oceanographer Jacques Cousteau. They alleged that the NFMS's approval of the program did not include sufficient mitigation measures, in violation of the MMPA.

Two Limits on Take, Two Independent Requirements

As the court notes, LFA sonar can harm "'low-frequency hearing specialists' such as baleen whales, but also sperm whales and pinnipeds such as seals and walruses," by disrupting their hearing, interfering with natural behaviors, and causing physical injuries.

To mitigate against these negative impacts, the Navy adopted measures which required sonar levels to be lowered when marine mammals were near, excluded LFA sonar in certain areas, and prohibited high-level sonar pulses in "offshore biologically important areas."

First, the court addressed whether the negligible impact and least practicable adverse impact inquires imposed separate requirements on NMFS, and found that they did. It rejected the argument by NMFS that it need only find that an activity will have a "negligible impact" on marine mammals in order to approve incidental take, holding stead that the service must also reduce take "to the lowest level practicable." "Compliance with the 'negligible impact' requirement," Judge Ronald M. Gould wrote for the unanimous 3-judge panel, "does not mean there was compliance with the 'least practicable adverse impact' standard during rulemaking."

The plan's mitigation measures, then, did not achieve the "lease practicable adverse impact," the court found. First, NFMS final rule gave only "cursory attention" to that requirement, the Ninth said, conflating that standard with the negligible impact standard.

Further, NMFS ignored its own subject matter experts when designating "offshore biologically important areas," instead focusing largely on waters near the United States, but ignoring important habitat elsewhere. "The result is that a meaningful proportion of the world's marine mammal habitat is under-protected," the court concluded.

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