Despite a federal court's ruling that the National Marine Fisheries got it wrong when the agency decided that the U.S. Navy could use sonar known to harm whales, dolphins, and other marine mammals, the Navy is going to be using that sonar again this year.
"The National Marine Fisheries Service is not doing its job of acting as a regulator — it is acting as if it is a part of the Navy," said Joel Reynolds, the attorney who sued. "It is the perfect example of bad governance. It is responsible for the safety and survival of marine mammals and it has become captive to the industries and agencies they regulate."
The Navy has scheduled training exercises in the Pacific and Indian oceans in the next year, Navy spokesman Kenneth Hess confirmed. Hess said that the Navy will continue using the low-frequency sonar, known as SURTASS, as it has in the past three years.
"Under the current [National Marine Fisheries Service] Letter of Authorization SURTASS [low-frequency active sonar] is authorized for use in routine training, testing and military operations in the Pacific and Indian Oceans," Hess wrote.
Reynolds, a senior staff attorney with the Natural Resources Defense Council, has been suing over sonar since 2002. In July, the council finally got the ruling it wanted, only to see the federal fisheries give the Navy permission to use the sonar until August of 2017.
Low-frequency active sonar was developed in the 1980s to locate Russian submarines and works by generating the loudest sound possible and then capturing the echo.
"From 100 miles away they can tell the difference between a seamount [underwater mountain] and a submarine," Reynolds said. "The ping lasts 106 seconds at 235 decibels, 200 billion times the level known to make whales change course."
Whales and dolphins seem to abandon habitat, stop feeding, go off course from the migration path, and get stranded. "It affects entire populations, including endangered populations like the [Pacific Ocean's] beaked whales," he said. "It causes disruptions that may push them over the precipice of extinction."
The sonar is believed to cause massive internal bleeding, and dolphins that have stranded and died on the shore after such events often have blood coming out of their eyes and ears, he said. In the past, Navy spokesmen have talked about the need for low-frequency active sonar as a national security tool, with regret for the collateral damage to marine life.
Evidence in the lawsuit showed that fisheries scientific staff had written a "white paper" on the not-yet fully identified populations of vulnerable marine mammals that would be affected by the Navy's use of sonar — which the agency leadership ignored. Judges on the panel seemed to find that particularly offensive.
"It gets to the heart of what the problem is," Reynolds said. "The fisheries are completely overwhelmed by the Navy's political power to the point where they ignore their own experts."
The 9th U.S. Court of Appeals kicked that lawsuit back to the judge who'd handed the Navy a win and ordered her to try again. (The fisheries and the Navy have the option of taking the 9th circuit ruling to the U.S. Supreme Court, which expires on Oct. 15th.)
The question of how the fisheries measured harm to the animals and used that measure to give the Navy permission to use sonar where marine mammals can be found still remains open.
Reynolds has sued nearly a dozen times to get the fisheries service to recognize the harm. His ire isn't with the Navy; he is angry with the fisheries service.
"The Navy is a most formidable applicant for permits because they perform a very valuable function," he said. "But the fisheries structure and culture is so poor that it can barely regulate the Navy — or even the commercial fishing industry it is supposed to regulate."
Reynolds is particularly worried about dolphins and whales in the Southern California bight, which extends from Point Conception to the Mexican border. Endangered blue, sperm, and fin whales are present, as well as dozens of species of porpoises, dolphins, seals, sea lions, and otters, according to the Scripps Institute of Oceanography.
"The bight is rich with sea life and several endangered marine mammals have populations within the bight," he said.