Hawai'i federal district Judge David A. Ezra has found that the Navy is violating federal law and enjoined it from carrying out its undersea warfare exercises in Hawai'i's waters without adhering to additional mitigation measures to protect marine mammals. The Navy is also required to take a hard look at the impacts of its high-intensity, mid-frequency active (MFA) sonar by preparing an environmental impact statement.
Earthjustice, on behalf of the Ocean Mammal Institute, the Animal Welfare Institute, KAHEA: The Hawaiian-Environmental Alliance, the Center for Biological Diversity, and the Surfrider Foundation's Kaua'i Chapter sued the Navy last May. Judge Ezra issued a preliminary injunction after finding the Navy was violating the National Environmental Policy Act (NEPA) and the Coastal Zone Management Act (CZMA), and was likely to cause harm if allowed to proceed without greater protections. He noted the Navy's harm threshold -- 173 decibels (dB) -- contradicts the best available science, and "cast into serious doubt the Navy's assertion that, despite over 60,000 potential exposures to MFA sonar, marine mammals will not be jeopardized." The court said further the Navy had failed to analyze reasonable alternatives to conducting its exercises in the manner it proposed, failed to notify and involve the public as required by law, and failed to take into account the potential for serious harm from an exceptionally controversial activity.
The court pointed out the importance of proper training, but concluded the Navy could conduct effective training while taking greater precautions, and ordered the Navy to do so. Specifically, Judge Ezra ordered that the Navy, in addition to following all of its proposed protocols, must also:
- reduce sonar power by 6 dB whenever a marine mammal is spotted within 1,500 meters of the vessel, by 10 dB at 750 m, and shut it down completely at 500m;
- "ramp up" sonar power slowly, by starting at a low level and increasing it, to allow marine mammals to escape;
- monitor the area for marine mammals 60 minutes before each day sonar is used, including using at least one dedicated aircraft for monitoring beginning 60 minutes before using sonar and continuing throughout the duration of the exercise;
- use three dedicated lookouts in addition to its normal watch component, plus passive monitoring to the extent practical, including use of bottom-mounted hydrophones at the Pacific Missile Range Facility on Kaua'i;
- monitor for 10 minutes before deploying dipping sonar from helicopters;
- power-down the sonar by 3 dB when any two of the following factors are present, by 6 dB when any three, and shut off sonar transmission when all are present:
1. rapid change in under water bathymetry;
2. multiple sonar-transmitting vessels;
3. chokepoints, which are areas surrounded by land masses, separated by less than 35 nm, and at least 10 nm in length, or an embayment; and
4. historical presence of a significant surface duct, which is an oceanographic condition that allows sound to travel farther without losing power.
"Today's ruling affirms that the Navy is not above the law, and that it can, and must, take greater precautions to protect marine life from the devastating effects of its high-intensity sonar," said Paul Achitoff of Earthjustice.
The Navy's MFA sonar has been implicated in mass strandings of marine mammals in, among other places, the Bahamas (2000), Greece (1996), Madeira (2000), the Canary Islands (2002), and Spain (2006). In 2004, during RIMPAC exercises, the Navy's sonar was implicated in a mass beaching of up to 200 melon-headed whales in Hanalei Bay, after which a whale calf died.
Brendan Cummings, Ocean Program director of the Center for Biological Diversity, commented the ruling shows "Hawai'i's humpback whales and other marine life need not be sacrificed in order to protect national security."
The Navy has used all of the measures the court ordered today in previous exercises, as well as others, but has resisted continuing to use them.
Read the decision (PDF)