Federal Court: Whales can't sue
on their own behalf
posted 10/22/04
Whales do not have the right to sue, according to a decision Wednesday, Oct. 21, 2004 by the U.S. Ninth Circuit Court of Appeals. The plaintiff in the case was the Cetacean Community, the name chosen by the Cetaceans’ self-appointed attorney for all of the world’s whales, porpoises, and dolphins. The Cetaceans challenged the United States Navy’s use of low frequency active sonar during wartime or heightened threat
conditions.
The court stated: " We are asked to decide whether the world’s cetaceans have
standing to bring suit in their own name under the Endangered
Species Act, the Marine Mammal Protection Act, the National
Environmental Protection Act, and the Administrative Procedure
Act. We hold that cetaceans do not have standing under
these statutes.
"The
scheme of the ESA is that a "person," as defined in
§ 1532(13), may sue in federal district court to enforce the
duties the statute prescribes. Those duties protect animals who
are "endangered" or "threatened" under §§ 1532(6) and (20).
The statute is set up to authorize "persons" to sue to protect
animals whenever those animals are "endangered" or "threatened."
Animals are not authorized to sue in their own names
to protect themselves.
"We agree with the district court in Citizens to End Animal
Suffering & Exploitation, Inc., that "[i]f Congress and the
President intended to take the extraordinary step of authorizing
animals as well as people and legal entities to sue, they
could, and should, have said so plainly." 836 F. Supp. at 49.
In the absence of any such statement in the ESA, the MMPA,
or NEPA, or the APA, we conclude that the Cetaceans do not
have statutory standing to sue."
The complete decision is available on the Court's Web site.
Cause of porpoise deaths remains uncertain
posted 02/10/04
No definitive evidence linking the deaths of 11 harbor porpoises to a May 2003 U.S. Navy sonar exercise in Haro Straight has been found according to a preliminary scientific report. UC Davis wildlife veterinarian Joe Gaydos of Orcas Island was one of the authors of the report released Feb. 9, 2004. Gaydos said the investigation was difficult because some of the carcasses were rotting when they were collected.
"Additionally, we need to know more about the effects of mid-range sonar on marine
mammals' hearing systems," he said. The panel did find signs of illness or
injury in some of the porpoises' ears, he said. "But we aren't able
to distinguish damage caused by sonar from damage caused by other
agents, such as decomposition."
The porpoise carcasses underwent a variety of studies,
including high-resolution computer tomography (CT scanning) and tests
for chemical toxins, diseases and parasites. The scientific team then
analyzed that data to establish a possible cause of death for each
animal.
The team declared a cause of death for only five of the porpoises.
Two had died of "blunt-force trauma," which could include ship
strikes or natural injury from coming ashore or being struck by
another animal. The other three likely died of peritonitis, a
bacterial infection (salmonellosis) and pneumonia.
The team said it could not find evidence of acoustic trauma in any of
the animals but cautioned that lesions "consistent with acoustic
trauma" can be difficult to interpret in decomposed animals. It said
the possibility of acoustic trauma exacerbating or compounding the
conditions that it found "cannot be excluded" in any of the animals.
Gaydos and 13 other scientists were asked to investigate after 14
porpoises stranded and died just before and after a U.S. Navy guided
missile destroyer, the USS Shoup, conducted sonar exercises in Haro
Strait. The scientists included veterinarians, pathologists, biologists and
an expert in porpoise ear anatomy.
Gaydos is staff veterinarian for U.C. Davis Wildlife Center's
SeaDoc Society which has offices and laboratories on Orcas Island. SeaDoc Society focuses on the marine wildlife and ecosystem of the Pacific Northwest.
For the past several years Gaydos and Richard Osborne, research director
of The Whale Museum in Friday Harbor, have investigated the death of every marine mammal found dead on the shores of San Juan County. The area has more than a dozen different
species of marine mammals, including orcas, harbor porpoises and
harbor seals.
The 60-page preliminary report which is available online at the National Oceanic and Atmospheric Administration http://www.nwr.noaa.gov/mmammals/cetaceans/necropsypage.htm was released Feb. 9, 2004 for scientific
review. A final report is expected in April, 2004.
Federal Court restricts global deployment of Navy sonar
posted 08/28/03
PRESS RELEASE: A federal judge ruled August 26, 2003 that the Navy's plan to deploy a new high-intensity sonar system violates numerous federal environmental laws and could endanger whales, porpoises and fish. In a 73-page opinion, U.S. Magistrate Judge Elizabeth Laporte barred the Navy's planned around-the-world deployment and ordered the Navy to reduce the system's potential harm to marine mammals and fish by negotiating limits on its use with conservation groups who had sued over its deployment.
The sonar system, known as Surveillance Towed Array Sensor System Low Frequency Active sonar (or LFA), relies on extremely loud, low-frequency sound to detect submarines at great distances. According to the Navy's own studies, LFA generates sounds up to 140 decibels even more than 300 miles away from the sonar source. Many scientists believe that blasting such intense sounds over large expanses of the ocean could harm entire populations of whales, porpoises and fish. During testing off the California coast, noise from a single LFA system was detected across the breadth of the North Pacific Ocean.
"Today's ruling is a reprieve not just for whales, porpoises, and fish, but ultimately for all of us who depend for our survival on healthy oceans," said Joel Reynolds, senior attorney and director of the Marine Mammal Protection Project at NRDC, the lead plaintiff and counsel in the case. "The decision recognizes that both national security and environmental protection are essential. It recognizes that during peacetime, even the military must comply with our environmental laws, and it rejects the blank-check permit that would have allowed the Navy to operate LFA sonar virtually anywhere in the world."
In her ruling, Judge Laporte found that a permit issued to the Navy by the National Marine Fisheries Service to deploy LFA sonar violates the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) because it did not adequately assess or take steps to mitigate the risks posed by the system to marine mammals and fish.
Judge Laporte found that, "endangered species, including whales, listed salmon and sea turtles will be in LFA sonar's path. There is little margin for error without threatening their survival…Absent an injunction, the marine environment that supports the existence of these species will be irreparably harmed."
In October, Judge Laporte granted a request by conservation groups for a temporary injunction to restrict deployment under the permit. Today's ruling orders the Navy to negotiate with NRDC and its co-plaintiffs on terms of a permanent injunction that would limit where, when and how the Navy can use LFA for testing and training. The injunction wouldn't prevent the Navy from using the system during war or "heightened threat conditions," as determined by the military.
Scientists have been increasingly alarmed in recent years about undersea noise pollution from high-intensity active sonar systems, which have been shown to harm and even kill whales and other marine life.
The mass stranding of multiple whale species in the Bahamas in March 2000 and the simultaneous disappearance of the region's entire population of beaked whales intensified these concerns. A federal investigation identified testing of a U.S. Navy mid-frequency active sonar system as the cause. Last September, mass strandings occurred in the Canary Islands as a result of military sonar, and in the Gulf of California as the likely result of an acoustic geophysical survey using extremely loud air guns.
Most recently, more than a dozen harbor porpoises were found dead on the beach near the San Juan Islands soon after the Navy tested active sonar in the Haro Strait in May. Videotape shows a pod of orca whales in the foreground behaving erratically as the Shoup, a U.S. Navy vessel, emits loud sonar blasts. Recent tests on one of the harbor porpoises revealed injuries consistent with acoustic trauma.
"The science is clear -- intense active sonar can kill whales, porpoises and fish," said Naomi Rose, a marine mammal scientist with the Humane Society of the United States, one of the co-plaintiffs. "The Navy must find ways to test and train with the LFA system that do not needlessly damage marine life."
"The public has a strong interesting in minimizing, as much as possible, any disruption or injury to these creatures from exposure to the extremely loud and far-traveling naval sonar system," Judge Laporte wrote in her opinion. "Public concern has been heightened by incidents where exposure to another kind of Navy sonar has led to lethal strandings of whales on the beach, as in the Bahamas in 2000."
"The court properly ruled that the permit to deploy the LFA system violates federal law," said Andrew Sabey, a partner with the international firm of Morrison & Foerster, which is representing the plaintiffs NRDC, the Humane Society, the League for Coastal Protection, the Cetacean Society International, and the Ocean Futures Society and its president, Jean-Michel Cousteau.
"The marine environment is an invaluable resource that we all must share," said Jean-Michel Cousteau. "I am very pleased that good sense has prevailed. The court has taken an extremely valuable step to protect a part of our life support system from destruction."
The Natural Resources Defense Council is a national, non-profit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has more than 550,000 members nationwide, served from offices in New York, Washington, Los Angeles and San Francisco.
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