A judge's decision to issue a "narrowly tailored" preliminary injunction that would strictly limit the use of Low Frequency Active (LFA) sonar over the next year is being hailed by marine mammal advocates as a major victory. In a court-ordered negotiating session on November 14, the United States Navy made significant concessions and gave up 90% of geographic areas in which it originally wanted to use the submarine-detecting technology, a move seen as an enormous victory for foes of LFA sonar. The concession is one outcome of a suit filed against the Navy by The HSUS, the Natural Resources Defense Council (NRDC) and several other groups.
At a November 14 negotiating session ordered by Magistrate Judge Elizabeth LaPorte, Navy negotiators agreed to test only in waters where few marine mammals are found. "Given that Judge LaPorte felt compelled to allow some limited use of LFA sonar for testing and training, the plaintiffs recognized the agreement as the best bargain possible prior to the judge's final ruling on LFA," said Naomi Rose, marine mammal scientist for The HSUS. The judge's final ruling on the suit is not expected until summer 2003.
LFA sonar is the latest method for detecting increasingly quiet submarines. Unlike passive sonars, which merely listen, LFA and other active sonars transmit a loud sound, and then record the sound's echoes as it bounces off objects in its path. LFA sonar differs from other active sonars in that it uses low frequency sounds, which can travel much greater distances underwater. The Navy's original plan was to man four ships with LFA transmitters, each producing at least 215 decibels of sound underwater. However, the one-year authorization was for only two vessels.
The HSUS fears that LFA sonar poses too great a risk for marine animals. LFA may damage or destroy marine mammal hearing, as well as disrupt calving, breeding, feeding, and communication. There may be other impacts, too, like those seen when a glass shatters as an opera singer hits a high note. A sound wave can cause material that resonates in its frequency to vibrate, shatter, shear, or tear. Some air spaces in mammals and fish may react to LFA sonar in this manner. In 2000, an investigation into a mass stranding of whales near a Navy exercise in which sonar was used indicated that the whales died from the impacts of a loud sound acting on their air spaces.
In early August 2002, The HSUS, NRDC and several other environmental protection groups filed a lawsuit against the U.S. Navy and the National Marine Fisheries Service (NMFS) in U.S. District Court in San Francisco. The suit claimed that the agencies violated the Marine Mammal Protection Act (MMPA), Endangered Species Act (ESA), and the National Environmental Policy Act (NEPA) by issuing a five-year small take permit and a Letter of Authorization (to be renewed annually) to harass marine mammals during the use of LFA sonar. NMFS had authorized the Navy to use LFA sonar anywhere within an area of approximately 14 million square miles in the north Pacific Ocean over the next year. The suit sought to overturn the permit and authorization and also asked the court to issue a preliminary injunction against LFA sonar use, which would prohibit the Navy from using the device until the court ruled on the merits of the case.
Preliminary Injunction
At at a lengthy preliminary injunction hearing on October 18, Judge LaPorte failed to dispute the plaintiffs' conclusion that this loud, far-ranging sonar will harass large numbers of marine mammals, in some cases to the point of injury. Neither did she dispute the defendants' claim that LFA sonar is necessary to detect quiet submarines (plaintiffs in the case argued that active sonar is not strategically defensible, because it can reveal the location of the transmitting vessel).
On November 1, Judge LaPorte's 58-page decision on the preliminary injunction motion stated that the plaintiffs were likely to prevail on a number of points raised in the lawsuit, for all three statutes—the MMPA, ESA and NEPA. She ordered the plaintiffs and defendants to meet to determine areas in the Pacific Ocean where marine mammal densities were low and LFA sonar could be most safely used during peacetime testing and training. Her goal was to issue a "narrowly tailored" preliminary injunction that would allow—but limit—LFA sonar use until she made a final ruling on the case.
An Order to Negotiate
On November 7, as part of ongoing negotiations to define the limits of sonar use by the Navy, Judge LaPorte rejected the Navy's insistence that it required five million square miles for LFA sonar use. The plaintiffs proposed restrictions that would limit LFA sonar use to a small area in the northwestern Pacific, where few whales are believed to be found. Faced with these widely divergent positions, Judge LaPorte ordered a schedule for negotiations to craft a mutually acceptable compromise, mediated by a court-appointed magistrate.
The next appearance before Judge LaPorte is scheduled for November 22, when the preliminary injunction settlement agreement will be finalized.
Other plaintiffs in the suit are the Cetacean Society International, League for Coastal Protection, and the Ocean Futures Society.
