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July 13, 2000 Judge's decision on Navy's use of low frequency sonar around Hawai'i by Lanny Sinkin Judge Alan C. Kay entered an order on July 10 denying the Hawai`i County Green Party motion to reopen the 1998 case brought against the U.S. Navy and other defendants challenging the testing of low frequency sonar off the coast of Hawai`i. Judge Kay also entered an order dismissing a new case filed on February 29 by the Hawai`i County Green Party and ten other plaintiffs seeking to enjoin the Navy from making irreversible and irretrievable commitments of resources to the development and deployment of the low frequency sonar system. In denying the request to reopen the 1998 case, the judge did not find that the "extraordinary circumstances" necessary to reopen a dismissed case existed in this instance. The judge did not find persuasive the evidence presented of a Navy intention to conduct further tests similar to the ones upon which the 1998 case was based. The Navy filed declarations denying any such intention. The judge did not see a reason to reopen a "musty" case because the Green Party could file a new case if the Navy did actually proceed to conduct new tests. The judge also noted that the Navy had agreed not to conduct any tests of the SURTASS LFA system prior to the completion of the EIS for deployment and the expiration of a 30 day period from the date the final Record of Decision to deploy the system was signed. In dismissing the new case, the major ruling found that the expenditures by the Navy to date did not constitute irreversible and irretrievable commitments of resources. The judge reasoned that the Navy research on LFA had other uses than simply to prepare for deployment of SURTASS LFA. The judge also found that the construction of a new ship to carry the SURTASS LFA did not constitute commitment toward deployment because the ship could be used for passive surveillance even if the ultimate decision was not to deploy SURTASS LFA. Because the court found that the alleged commitments did not foreclose a decision not to deploy SURTASS LFA, the court found the case to be premature. Similarly the court found that because the money spent by the Navy did not constitute "irretrievable and irreversible commitment to deployment" plaintiffs had suffered no injury. The court ruled that plaintiffs should appropriately file their suit after a final EIS was issued. The court did state: "Despite the above outcome, the Court notes and expresses its concern that, according to an independent study sponsored by the Navy, low frequency sonar tests do indeed affect marine life. Although the researchers are not sure whether the tests have a harmful impact, they recommend at the very minimum that the Navy should avoid active breeding areas when performing tests. Further, the Court notes that the article states that whales breed and calf off Hawaii in the winter and spring before migrating north to the Gulf of Alaska. Following these recommendations would seem to have a severe impact on any testing off Hawaii." I have the following preliminary responses to the above ruling: 1. The quote above from the judge is very noteworthy. More and more evidence is emerging that the Navy sonar systems are in fact a danger to marine life, whether or not a particular legal challenge is successful. The Navy must acknowledge this evidence and halt its plans to deploy new, high intensity, low frequency sonar. The quotation above is also a fairly strong indication that the judge would consider a future challenge to any testing or deployment in Hawaiian waters. 2. The court took a very narrow view of what constituted plans to conduct further tests similar to the 1998 tests. The 1998 case focused on the Phase III tests in the Scientific Research Program (SRP) being conducted to prepare the EIS. The plaintiffs did not allege that the new tests were part of Phase III. The plaintiffs did allege that the new tests were part of what was apparently intended as Phase IV of the SRP. The 1998 case could not seek to enjoin Phase IV because that phase did not exist at the time. At the same time, the stipulation agreed to by the Navy is at least a barrier to some forms of further testing 3. The court found "unpersuasive" the Green Party's argument that the Navy changed its plans after the filing of the motion to reopen the 1998 case. The court did not state, however, why that argument was not persuasive. The Office of Naval Research clearly made every effort after the filing of the motion to back away from its stated intention to conduct "Further LFA SRP" tests. 4. The court ruling dismissing the new case is clearly erroneous. There is no question that the ship constructed to carry the LFA system is very different from the ships already constructed to carry only the passive equipment. The only reason for those major differences is to be able to deploy the LFA system. The fact that the ship can be used for passive surveillance does not mean that major expenditures for design, engineering, construction, hardware, and software solely for purposes of deploying LFA have not been made. Such expenditures do constitute irreversible and irretrievable commitments to actual deployment. 5. Equally important, the court essentially ruled that plaintiffs, without any opportunity to conduct discovery and without the Federal Defendants producing any record of administrative decisions on resource commitments, had to prove that irreversible and irretrievable commitments to deployment had been made. Plaintiffs did not have that burden at this stage of the case. Furthermore, the court equates irreversible commitments of resources which might influence the ultimate decision -- the type of commitments the law forbids -- with commitments directly to deployment. The whole purpose of the law is to prevent an agency from making financial or other resource commitments to a project until the environmental impact statement is completed. The idea that the Navy would spend more than $350 million on development and preparing to deploy LFA and not be heavily influenced to deploy the system flies in the face of common sense. Preventing such influence is the purpose of the law invoked by plaintiffs. 6. I would fully expect the Ninth Circuit to reverse the ruling to dismiss and reinstate this case. The question remains whether pursuing that reversal is the best use of resources. There is every likelihood that the final EIS will be issued before the Ninth Circuit can rule on such an appeal. If the final EIS is issued, then the appropriate legal action would be to expose the obvious and substantial deficiencies in the EIS process and what we expect to be deficiencies in the final EIS. There is already ample reason for the Navy to prepare a supplemental draft EIS based on the evidence which emerged from the standings and deaths of cetaceans in the Bahamas. I will be discussing with plaintiffs over the next 30 days whether pursuit of an appeal is appropriate. Aloha, Lanny Sinkin ===================== Back to whaleupdate page C-paper index LF Sonar tests off Scotland |