Navy Seeks Repeal of Judge’s Ban on Sonar

A judge’s order banning active sonar during a naval exercise off Hawaii will damage national security, embarrass the United States in front of allies, and make it difficult to form future coalitions to “deter aggression,” Navy lawyers charged in a federal appeal to lift the ban.

District Judge Florence-Marie Cooper on Monday issued a temporary restraining order keeping the Navy from using active sonar in its Rim of the Pacific exercise until a July 18 hearing.

Cooper also ordered the Navy to meet with Natural Resources Defense Council attorneys by July 12 to consider their lawsuit alleging that the sound waves would hurt whales and other marine mammals.

The biennial Rim of the Pacific exercise, set to run through July 28, involves the naval forces of the U.S., Britain and six Pacific Rim nations, with 40 ships, six submarines, dozens of aircraft, and 19,000 military personnel. The active sonar portion of the exercise was set to begin this week.

The Navy, backed by lawyers from the Justice Department, wants judges from the U.S. 9th Circuit Court of Appeals in San Francisco to quash Cooper’s order. Waiting until a July 18 hearing would be too late in the exercise , the Navy says.

The Navy insists that the use of midfrequency active sonar in the exercise is needed to help sailors learn how to hunt for quiet submarines similar to the kinds Iran, China and North Korea are using as the centerpieces of their naval forces. It contends that the mitigation measures agreed on during negotiations with the National Marine Fisheries Service are sufficient to safeguard the whales.

But the Natural Resources Defense Council says in its lawsuit that the Navy should move its exercise farther from the Hawaiian Islands, expand the “quiet” zone where active sonar will not be used and add more spotters so that the sonar can be turned off if whales are discovered.

Also, the council says the Navy manufactured “a purported emergency” by waiting until the exercise had begun to finish its environmental review and receive a permit from the fisheries service. The Navy’s “tactics should not be rewarded,” the group says.

In 2004, during a similar multinational test of active sonar, 150 whales herded into a shallow bay. Federal scientists later concluded that the sonar was the reason for the abnormal behavior.

In the court documents filed in the appeal, Rear Adm. John Jay Donnelly, deputy commander and chief of staff for the Pacific Fleet, says allowing the ban to remain in effect “from a foreign relations perspective would be an embarrassment to the United States and would seriously undermine our ability to build coalitions to address future threats in the Pacific Theater.”

After the Natural Resources Defense Council filed its lawsuit last week, the Department of Defense authorized a six-month exemption for the Navy from the Marine Mammal Protection Act.

But Cooper ruled that the exemption did not cover another federal animal protection law, the National Environmental Policy Act -- an assertion that Department of Justice lawyers are contesting.