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February 2003
Judge bans navy sonar tests on gray whales
Federal Judge Samual Conti in San Francisco has entered a permanent
injunction stopping planned sonar testing on migrating Gray Whales off
the coast of California.

The judge had earlier entered a temporary restraining order stopping the
testing until a full hearing could be held.

Plaintiffs in the case were the Hawai`i County Green Party, Australians for Animals, Stop LFAS {low frequency active sonar} Worldwide Network, Channel Islands
Animal Protection Association, Robert Puddicombe, and Sea Sanctuary, Inc.

Defendants included the Secretary of Commerce Donald L. Evans, other federal
officials, and Dr. Peter Tyack of Woods Hole Oceanographic Institute.

The judge based his decision, in part, on the failure of the National Marine
Fisheries Service (NMFS) to perform any analysis of possible environmental
impacts from the testing and on the potential for the testing to harm Gray
Whales.

NMFS had claimed a "categorical exclusion" that allowed them to grant
amendments to an existing permit without conducting an environmental
assessment.

Plaintiffs argued that six different exceptions to this rule applied in this case.

Judge Conti found the exclusion claim did not adequately consider a number
of exceptions that could have required preparation of an environmental
analysis. The ruling particularly found that an exception for public
controversy applied.

"Plaintiffs have proven that NMFS acted arbitrarily, capriciously, and in a
manner contrary to law when, during its review of the application for the
First Amended Permita and the Third Amended Permit, it decided not to
apply  exception to categorical exclusion relating to actions that are the
subject of public controversy."

The court further found that other exceptions may have applied and the
public controversy exception was so clear that there was no need to even
consider whether the other exceptions did apply.

The judge cited two earlier cases in the same judicial district relating to
acoustic testing on marine mammals that had resulted in injunctions being
issued.

The judge noted that NMFS prepared an environmental assessment for the
initial permit based solely on the existence of such controversy. "The
presence of the controversy was obvious in 2000. It was also obvious in
2001 and in 2002 when NMFS was considering Dr. Tyack's applications for the
First Amended Permit and the Third Amended Permit. It is certainly no less
obvious today."

The ruling revoked the first and third amendments to a permit granted in
August 2000. The amendments permitted additional activities, including the
sonar testing on Gray Whales. The revocation of the amendments also
prevents the tagging of Humpback Whales in Hawai`i and increasing the sound
levels reaching the whales.

The second amendment is a minor amendment that the court left in place.

The judge found that the NMFS claim that no environmental analysis was
necessary failed because the absence of such analysis violated the National
Environmental Policy Act requirement to consider exceptions to the
categorical exclusion rule and posed a threat of harm to the Gray Whales.

The judge noted that the Third Amended Permit allowed broadcast at levels
received by the whales as high as 180 decibels. "The likely harm is pain
and/or injury that marine mammals will suffer when subjected to the sounds.
It cannot be doubted that the sound will, at the very least, disturb the
animals to whom they are broadcast."

The harm to the Gray Whales could also come from broadcasts of sonar that
overlapped the hearing range of the Gray Whales.

In addition the court expressed concern about the decline in the Gray Whale
population to a level of below their number at the time NMFS removed the
Gray Whale from the Endangered and Threatened List.

While the court noted that NMFS argued that the decline in the Gray Whale
population level is not serious, the court found that the issue was "to say
the least, debatable."

The court did not revoke the initial permit. That permit still permits
sonar testing at low, mid, and high frequency levels on hundreds of
thousands of marine mammals.

Lanny Sinkin, attorney for the plaintiffs, said "We are thrilled that we
were able to present sufficient evidence in a very short period of time to
convince the judge to revoke the NMFS permits and stop Dr. Tyack's
experiments on Gray Whales. As a Hawaiian attorney, I am also pleased the
permit to tag Humpback Whales in Hawai`i was also revoked."

The next step, according to Sinkin, is to file a petition with NMFS to
return the Gray Whales to the endangered list. "Sue Arnold of Australians
for Animals is drafting the relisting petition now and it should be filed
within a month."

For further information on the ruling, contact Lanny Sinkin (808) 982-5110

For further information on the crisis in the Gray Whale population, contact
Sue Arnold (650) 208-4628.

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