Judge lifts parts of Navy sonar restrictions - Navy News | News from Afghanistan & Iraq - Navy Times

Judge lifts parts of Navy sonar restrictions

A federal judge has lifted parts of an injunction that would have restricted sonar training during exercises off the California coast that are to be held by the Abraham Lincoln strike group later this month, as well as similar exercises by other West Coast carrier and amphibious assault strike groups until January 2009.

The injunction was issued Jan. 3 by U.S. District Judge Florence Cooper in response to a lawsuit filed by environmentalist groups, who complained that extensive use of mid-frequency range active sonar during Navy training exercises had killed an untold number of whales around the world.

But in response to the injunction, President Bush issued a statement Jan. 15 exempting naval exercises off the Southern California coast from regulation by the Coastal Zone Management Act. The White House Council on Environmental Quality approved a plan that Navy officials say puts its planned sonar use in compliance with a second federal law, the National Environmental Policy Act.

Navy officials say those two federal laws provided the basis for the lawsuit and for Cooper’s injunction, which barred the Navy from using sonar within 12 miles of the California coast; required Navy sonar to be shut down when whales are spotted within 2,000 meters of Navy ships; required the Navy to use two specially trained lookouts during sonar use; required the Navy to watch for whales from the air for at least 60 minutes before sonar can be powered up; and required the Navy to power down its sonar when sea conditions are such that sound waves carry farther.

The Navy, citing the two developments, asked a federal appeals court in San Francisco to overturn Cooper’s injunction, and the appeals court sent the case back to Cooper for further consideration. She announced her latest decision Jan. 17.

In his statement, Bush said the Navy’s ability to conduct composite training unit exercises and joint task force exercises as soon as the week of Jan. 21 “are in the paramount interest of the United States” — a finding that the law required him to make in order to grant the exemption.

Cooper’s ruling left much of her injunction in place, but rescinded the 2,000-meter shut-down requirement and the surface sound wave shut-down requirement; those restrictions, especially the distance requirement, compromised the effectiveness of sonar training, a senior Navy officer said at a briefing Jan. 16.

Natural Resources Defense Council officials said they intended to submit a brief to Cooper by Jan. 22 asking that the injunction be reinstated.

“We are confident that we will prevail,” Daniel Hinerfeld, a spokesman for NRDC, said Jan. 18.

“These waivers are illegal, both of them,” he said. “The waiver under CZMA is procedurally improper. It was filed with the wrong court. Under NEPA, no emergency conditions exist. What we are talking about is training exercises and litigation that has been going on for more than a year. If there is any emergency here, it was one entirely created by the Navy.”

Moreover, Hinerfeld said, there is no language in the NEPA statute that allows for a presidential waiver. The language allowing the waiver was written by the executive branch.

“If that follows, the executive branch wouldn’t have to follow any laws,” he said. “They could just write a regulation that says they won’t follow it.”

Hinerfeld said NRDC officials understand the Navy’s need to train using active sonar, but say they can do so effectively under the rules set out in Cooper’s injunction.

“We acknowledge the Navy’s need to train with mid-frequency sonar,” Hinerfeld said. “It is an important tool for the Navy to defend its ships and sailors. On that we agree. Where we disagree is the need to use sonar [under less stringent restrictions] in these places where you have a very high concentration of marine mammals. We believe the Navy can effectively train and abide by the court’s order. We don’t think that’s asking too much.”

But a senior Navy officer said potential adversaries’ modern diesel-electric submarines, which he said are the most serious threat to the Navy’s carrier strike and amphibious assault groups in coastal waters, are “nearly undetectable” without the use of mid-frequency range sonar, and that its operators must train constantly to maintain their proficiency.

And the Navy says that Southern California coastal waters are an ideal place for strike group training because of their undersea mountains and proximity to bombing ranges, nearby beaches at a Marine Corps base for practice invasions, and because the Catalina basin provides sea conditions much like those found in choke points such as the Straits of Hormuz and Malacca.

“It’s like asking somebody to train on plains for mountain climbing,” the senior Navy officer said of suggestions that the training be moved to another area. “We need to train in this area.”

Navy officials say they will use 29 less restrictive measures developed last year and used worldwide. Those measures include the use of passive sonar and trained lookouts to detect whales.

“We are pleased with the district court’s decision,” Navy spokesman Cmdr. Jeff Davis said. “This ruling helps ensure that our sailors and Marines will deploy with the best possible training. As always, we will continue to protect our nation while simultaneously remaining good stewards of the environment.”