July 18, 2016 - In a unanimous rebuke, the Ninth Circuit court ruled Friday that the National Marine Fisheries Service (NMFS) had illegally approved a permit authorizing the Navy to use its high-intensity long-range sonar – called low-frequency active sonar (or LFA) – in more than 70 percent of the world’s oceans. Designed for submarine detection over vast expanses of deep sea, LFA has the capacity to expose thousands of square miles – and everything in it – to dangerous levels of noise.
The case against the Fisheries Service was brought by the Natural Resources Defense Council (NRDC), The Humane Society of the United States, Cetacean Society International, League for Coastal Protection, Ocean Futures Society and its President Jean-Michel Cousteau, and Michael Stocker, a bioacoustician and director of Ocean Conservation Research in California.
In its decision, the three-judge panel found that the Fisheries Service had unlawfully ignored reasonable safeguards recommended by the government’s own scientists to reduce or prevent harm from the sonar system, resulting in a “systematic under protection of marine mammals” throughout “most of the oceans of the world.” Experts had recommended that the Fisheries Service protect the Galapagos Islands off the coast of Ecuador, the Papahanaumokuakea Marine National Monument off of Hawaii, Challenger Bank off of Bermuda, and other areas around the world important to whales, dolphins, seals, and other marine mammals. But the Fisheries Service went ahead and gave the Navy the greenlight to operate its intense sonar in the vast majority of these areas.
Among other things, the court also found that:
Protecting marine mammal habitat from Navy sonar is “of paramount importance” under the law.
The Fisheries Service has an independent responsibility to ensure the “least practicable impact on marine mammals” (i.e., the lowest possible level of harm) before giving the Navy – or anyone else – permission to harm these protected species; and that the Fisheries Service must err on the side of overprotection rather than under protection.
The Fisheries Service had given “mere lip service” to the requirement to minimize impacts during Navy sonar training.
The law requires the Fisheries Service to mitigate harm to individual marine mammals and their habitat, rather than ignore its statutory responsibility until species as a whole are threatened.
This is the third time that NRDC has successfully challenged the government’s failure to adequately protect marine mammals from the Navy’s use of the LFA system. In the prior district court cases (2002 and 2007) plaintiffs and the Navy reached a court-ordered settlement allowing use of the system in significantly reduced areas of the world's oceans, with the promise of sufficient protections under future permits. The Fisheries Service failed to meet that promise, and the Ninth Circuit’s decision requires the agency to provide greater protections for whales and other marine mammals.