MILITARY: Supreme Court lifts Navy sonar limits

By DAVE DOWNEY - Staff Writer | Wednesday, November 12, 2008 7:08 PM PST ∞

In a partial victory for local military officials, the nation's highest court Wednesday cleared the way for the Navy to use sonar in war games in the open ocean off the coast of San Diego County and Southern California.

Environmentalists who brought the suit said they were disappointed, but stressed that the ruling's impact would be limited.

Citing several reports of whale beachings around the world over the last several years, the Natural Resources Defense Council has been arguing that limits are needed because the exceptionally strong sound waves launched by sonar pose a serious threat to whales and dolphins.

Scientists say the piercing underwater sound causes marine mammals to panic and to rise too quickly. In essence, the animals get the bends, and expanding gas bubbles sometimes rupture the delicate vessels in their brains and ears.

The group has maintained that sonar limits would not get in the way of the Navy's mission.

But in its first decision of the new term, the U.S. Supreme Court voted 5-4 to dismiss some restrictions on sonar use that were imposed by a federal judge in Los Angeles earlier this year. The majority determined that those limits could in fact jeopardize the mission to prepare sailors for war.

However, the ruling only applied to a series of 14 Navy exercises over the last two years that is scheduled to conclude with a round of training in December. It was unclear how the decision will affect exercises in coming years.

For now, the next time sailors go out to sea to practice with sonar, they won't have to shut down the underwater sound device when they spot whales a little more than a mile away, as they have in recent months.

And they won't have to ratchet down the volume when conditions are present that allow sound to travel long distances without losing strength.

The Navy still is barred from using sonar in exercises within 12 miles of the shore of San Diego, Orange and Los Angeles counties, and in an underwater canyon that extends from Santa Catalina Island to the military-owned San Clemente Island west of San Diego.

Both are locations where many whales and dolphins are found.

Those restrictions, as well as those struck down by the high court, were imposed in January by U.S. District Judge Florence-Marie Cooper in Los Angeles.

Local Navy officials deferred comment on the Supreme Court ruling to the Pentagon.

Secretary of the Navy Donald C. Winter said in a statement that the Navy was pleased with the ruling, which came in a case it said it considered vital for national security.

"We can now continue to train our sailors effectively, under realistic combat conditions, and certify our crews 'combat ready' while continuing to be good stewards of the marine environment," Winter said.

Environmentalists were not pleased.

"It is a setback," said Zak Smith, marine mammal attorney for Natural Resources Defense Council in Santa Monica, the environmental group that sued to force the Navy to limit its sonar use. "There is no getting around the fact that, after this ruling today, in the exercise in December there will be fewer protections for marine mammals."

But Smith said the court's ruling narrowly focused on the 14 training exercises the Navy planned between early 2007 and the first of 2009. And the December exercise is the last of those.

"As for the applicability to future exercises, we will have to wait and see," he said.

Smith said the Natural Resources Defense Council would continue to press for limits on sonar use in Southern California as the Navy prepares to conduct additional war exercises.

In issuing the decision, Chief Justice John Roberts wrote the majority opinion, which was joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. They noted that, while a number of whale deaths around the world have been linked to sonar use, no such connections have been made thus far in California.

In a pair of separate dissenting opinions, Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter suggested that limits on sonar use were justified because of the potential harm to whales.

Still, Roberts wrote that the overall public interest tips "strongly in favor of the Navy. ... Forcing the Navy to deploy an inadequately trained anti-submarine force jeopardizes the safety of the fleet."

Ginsburg preferred to focus on the safety of the whales.

A Navy document had estimated the exercises would expose marine mammals to dangerously loud sound on approximately 170,000 occasions.

Ginsburg said that "this likely harm ... cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy's 14 training exercises."

The Associated Press contributed to this report. Contact staff writer Dave Downey at (760) 745-6611, Ext. 2623, or ddowney@nctimes.com.