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Accepting Dr. Mobley's disclaimer as true, the only evidence available regarding the presence or absence of whales in the test area during the earliest testing days is the limited observation data from the two Navy ships involved in the testing and their shore observation post and the numerous observations of the whale watch captains and others outside the scientific team. A complete technical report and DEIS would have addressed all the evidence and discussed the question of an absence of whales from the test area in terms of all the evidence.   That the technical report and the DEIS do not discuss the captains' observations is one of many indicators that facts will not be allowed to impede a predetermined deployment decision.

While judicial rulings have taken most of the value out of the National Environmental Policy Act, two principles at least have survived - the decision-makers must consider the evidence before them and provide an opportunity for the public to comment on the decision-making process. By excluding highly relevant evidence known to the Navy; their contractor, Marine Acoustics, Inc.; and the scientists preparing the critical
underlying report(s), the DEIS violates both these principles. There is every reason, therefore, to expect a court to rule that the process must be reopened to consider such
evidence. The failure to address the evidence of whales leaving the testing area is matched by a similar failure to address the evidence of a swimmer in the water suffering traumatic physical harm from insonification by the SURTASS LFA.

During the litigation, Ms. Chris Reid, a naturalist living on Hawai`I studying dolphins, submitted an affidavit stating that she was exposed to a broadcast from the SURTASS LFA and experienced adverse physical effects for a period of months after the exposure. A doctor who examined Ms. Reid shortly after the exposure compared her condition to that of a trauma patient in a hospital ward.  In the litigation, the scientists admitted that Ms. Reid was exposed to an LFA broadcast. The scientists did not, however, provide the underlying data regarding that exposure nor any analysis of the possible effects on Ms. Reid.  At no time since Ms. Reid and her doctor filed declarations in the litigation did the scientists conducting the study or any one else associated with the DEIS process make any attempt to contact Ms. Reid or her doctor for further information or to conduct any physical examination of Ms. Reid.

A separate technical report addresses the bioeffects of LFA on humans. That report does not mention Ms. Reid's experience.  Data on the effects of low frequency sound on humans in the water is very limited. One would think that scientists studying that question would be highly motivated to investigate and report upon Ms. Reid's experience.

The thundering silence in the technical report and DEIS regarding Ms. Reid is yet further evidence of a predetermined decision - deployment - not to be disturbed by any evidence developed failing to support that decision. The disappearing whales and the damage to Ms. Reid represent only part of the evidence of adverse impacts of SURTASS LFA submitted in the Hawaiian litigation. Other than a passing reference to one event, the technical reports and the DEIS ignore all of that evidence. Further evidence that the Navy did not take its obligations under the law seriously, even after getting caught by NRDC, is that the DEIS was rushed to completion before all the relevant studies were completed and available to the public.

The technical report by the scientists studying the effects on marine life states: "We have only started to analyze the data ...."  The technical report on the bioeffects on humans relies on numerous studies conducted in the last two years. In the References section, those studies designated as preliminary reports are "for internal use only." Those studies consist of seven of the critical studies upon which the report relied. Whatever the reasons for withholding these reports, the fact remains that critical reports upon which a major component of the DEIS is based are not available publicly for comment.

Finally, the Draft supposedly presents three alternatives: no action, deployment with limits, or deployment without limits. The Navy states its preference as deployment with limits (Alternative 1). The problem is that the Draft defines those limits in two very different scenarios. 

In the first scenario, only the passive (listening) element of the SURTASS LFA system is to be used in "geographically-restricted areas." Those areas are coastal waters; biologically important areas, such as breeding grounds; and areas where divers are likely to be present.

In the second scenario, the activities within the geographically-restricted areas are described in terms of a sound field that "does not exceed 180 dB" within 22 km of any coastline nor in offshore biologically important areas outside the 22 km zone and "does not exceed 145 dB" in the vicinity of known recreational and commercial dive sites.

There is obviously a major difference in an alternative that would limit use of SURTASS LFA to only passive missions in geographically-restricted areas and an alternative that would permit broadcasts up to 180 dB and/or 145 dB in geographically-restricted areas. The two conflicting scenarios is simply one more measure of the rush to complete the EIS process so deployment can begin.   Based on these obvious deficiencies, environmentalists and others are already calling upon the Navy to withdraw the DEIS and prepare a new draft OEIS/EIS that deals honestly with the available evidence, provides time for the scientists to complete their work, and presents the opportunity for public comment. See http://manyrooms.com/martingale.htm. The deadline for comments is October 28, 1999 (but late comments can reinforce those that arrived on time.)

There is little reason to be optimistic that the Navy can go full steam astern at this point. Lurking in the technical report by the scientists hired by the Navy are such statements as: "Responses did not scale consistently to received level, and it will be difficult to extrapolate from these results to predict responses at higher exposure
levels."  Translation: The scientists were only able to test the SURTASS LFA at sound levels mostly below 140 decibels. The reactions of whales at those levels were not consistent. Those levels are far below the planned deployment levels reaching to 235 decibels, which happens to be more than one billion times louder than the tests.
Such statements by their own scientists make even an honest treatment of the Navy's funded studies a challenge to deployment. To seriously  consider all the other adverse information gathered those outside of the hired scientists could well doom the system.

One can have pity for the poor naval personnel faced with this dilemma. They thought they were protecting national security and, therefore, doing the right thing. The mistake was not considering the environmental consequences ten years ago. Life in the ocean and the marine environment should not pay the price for that mistake.
The only question remaining is whether the Navy will admit their mistake, cut their losses, and eliminate yet another threat to an ocean environment already stressed by human toxins, wastes, noise, and induced climate change or play the national security card as trump to any concerns about the health of the ocean environment, the creatures living in that environment, or humans visiting that environment.

Only a concerted effort by citizens to contact their favorite environmental organization to urge them to get involved in stopping SURTASS LFA and to contact their congressional representative to demand accountability to the law for the Navy and its system can stop the juggernaut barreling out to sea and convince the Navy to do the right thing.

The author is an attorney in Hilo, Hawai`i who filed two of the four lawsuits against the Navy during the Hawaiian testing. 

Lanny Sinkin
P. O. Box 944
Hilo, Hawai`i 96720
(808) 969-7768
light@ilhawaii.net

To secure a copy of the draft EIS and the technical reports on which the
DEIS relied, contact:

Mr. J.S. Johnson
Attn: SURTASS LFA Sonar OEIS/EIS Program Manager
901 North Stuart Street, Suite 708
Arlington VA 22203

FAX 703-465-8420

Civitas submission to US Navy (before receiving Larry Sinkin's report)

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