The following document is a report on the development of a new sonar system by the United State Navy. This system uses loud, low frequency sound to detect submarines. The Navy intends to deploy this system throughout the oceans of the world. The Navy plan will put the entire marine environment at risk.
In March 1998, the Navy conducted tests of this system directed at Humpback Whales in their breeding, calving, and nursing cycle off the west coast of Hawai'i. The results demonstrated that adverse effects on whales, humans, and dolphins took place at sound levels far below the intended level for the deployed system.
We hope you will take the time to read the report and take the follow up actions suggested.
Mahalo ("thank you" in Hawaiian).
From the Report
In 1980, the United States Navy began developing a sonar system using low frequency broadcasts to detect silent submarines. The existing listening devices on the ocean floor were not capable of detecting a new class of silent diesel electric submarines. Of particular concern was that the noise levels in coastal areas created the possibility that an undetected submarine could move close to shore. The development of the new sonar system, known as SURTASS LFA, took place as a secret program. The SURTASS LFA system is intended for deployment in eighty percent of the Earth's oceans.
Unfortunately, the United States Navy failed to comply with obligations under various environmental statutes, including the National Environmental Policy Act, the Endangered Species Act, the Marine Mammal Protection Act, and the Coastal Zone Management Act. The Navy did not prepare an Environmental Impact Statement (EIS) prior to beginning the development of the SURTASS LFA system.
During approximately fifteen years, the Navy moved from concept; through design, engineering, and construction; and to the point of deployment without a comprehensive look at the potential environmental impact of this system on the marine environment or humans using the marine environment. In addition, the Navy commissioned a ship designed, in part, to carry the SURTASS LFA.
In 1995, a scientist noted a report of planned deployment of the system and alerted the Natural Resources Defense Council (NRDC). NRDC discovered the existence of the Navy program and contacted the Navy to question the legality of the Navy ignoring the environmental statutes.
The Navy agreed to prepare an EIS prior to final deployment of the system. By that time, the sunk cost in the development of this system and the ship to carry the system was well into millions of dollars, perhaps hundreds of millions. Furthermore, the system had been extensively tested in various oceans, including full power tests.
Dr. Alexandros Frantzis published a letter in the March 5, 1998 issue of Nature in which he reported on the extraordinary stranding of Curvier beaked whales off the coast of Greece. The stranding was extraordinary both in terms of the number of whales stranded (12) and the location of the strandings (significantly distant from each other where previous strandings have almost always been groups together). In his letter, Dr. Frantzis correlated the stranding with trials of a Low Frequency Active Sonar system broadcasting from a Nato research vessel. Dr. Frantzis calculated the probability of the mass stranding occurring for reasons other than the sonar test as less than 0.07%.
As part of the EIS process, the Navy contracted with scientists to conduct a series of tests focused primarily on whales to determine their sensitivity to the low frequency broadcasts. These tests were to be conducted at levels significantly less than the operational level, by at least a factor of 1,000 in terms of loudness.
The scientists, using a ship leased by the Navy and the SURTASS LFA equipment provided by the Navy, conducted tests in Phase I and II in the waters off California. Quicklook I, a report on the Phase I testing of the SURTASS LFA off the coast of California, reported that vocalizations of Blue Whales declined 50% and vocalizations of Fin Whales decreased 30%. Like the tests in Hawai'i, the tests off California were conducted at sound levels far less than those to be used in a fully deployed system. The scientists did not consider this decline biologically significant.
Phase III called for conducting tests off the west coast of the Island of Hawai'i. The initiation, conduct, and results of those tests created a major controversy and strongly suggested the need for a reevaluation of the entire program. Evidence emerging from tests of the system supports a conclusion that the system is environmentally harmful and should not be deployed.
The Permit: On December 17, 1998, Dr. Chris Clark, the lead scientist in the SURTASS LFA testing, applied for an amendment to his Phase I and II permit to include testing the system on Humpback and Sperm whales off the west coast of the Island of Hawai'i. By that point in time, the limited Humpback Whale season in Hawai'i was almost one third over. The whales generally arrive in November and leave in mid-to-late April.
The Humpback Whales come to the waters off Hawai'i to breed, birth, and nurse their calves. The amendment sought specifically to test the system in this particular cycle.
The National Marine Fisheries Service (NMFS) posted notice of the amendment application in the Federal Register on December 23, 1997. That notice set a deadline for comments at January 22, 1998.
On February 7, 1998, the Navy and scientists conducted an informational meeting on the Island of Hawai'i, the first such presentation of the program on the island.
On February 12, 1998, NMFS issued an Environmental Assessment for the amendment and issued the amendment.
On February 20, 1998, NMFS placed a notice of the issued amendment in the Federal Register.
On February 25, 1998, the United States Navy and the scientists began initial calibration of the SURTASS LFA system of the west coast of the Island of Hawai'i.
From March 1 or 2 through March 29, 1998, the tests broadcast loud, low frequency sounds at targeted Humpback Whales. Initial reports indicate that the Navy and scientists did not locate any Sperm Whales for testing.
The Hawaiian controversy began at the February 7 informational meeting. The Navy and the scientists assumed they were simply going to provide information about the tests to the public. Instead, they found themselves facing an irate audience and a meeting best described as chaotic.
A very divergent perspective on the tests emerged, which continued to manifest throughout the testing period.
The Navy and the scientists attempted to portray what they were doing as harmless testing of benefit to science. From their perspective, the fact that the loudness of the broadcasts would be at least 1,000 times less than the loudness planned, if the system is deployed, meant that the broadcasts were safe.
To the islanders, the testing was outrageous, unethical, unnecessary, and essentially fraudulent.
The Navy and scientists came to the island with no understanding of the deep bond between the islanders and the whales. The return of the Humpback Whales to Hawai'i in the winter is a source of great joy to many in the islands. Watching the breaching, tail slapping, pectoral slapping, birthing, and other activities of the whales is an important part of life on island. People can swim in the waters and listen to the singing. The relationship to the whales is, for many, very personal and spiritual. The testing came as a shock compared to a second Pearl Harbor, only this time the attacking military was supposedly friendly.
At the political level, a lengthy process had just been completed to establish a National Marine Humpback Whale Sanctuary in Hawaiian waters. For a federal agency to come to the Sanctuary area shortly after the dedication with a permit to harass the very whales protected appeared to be "grand hypocrisy," to quote a letter from Representative Patsy Mink to the National Marine Fisheries Service. The Humpback Whale is also the state animal of Hawai'i.
The idea of deliberately disrupting in any way the breeding, birthing, and nursing cycle of the whales is unthinkable to islanders. The Humpbacks are a species slowly recovering from human devastation. With little knowledge of their natural cycles, the scientists risked disturbing these endangered beings at the most critical point in their lives and, thereby, possibly endangering their recovery as a species.
When the islanders discovered that this testing was part of a planned deployment of an even louder and potentially more damaging system throughout 80% of the Earth's oceans in order to detect quiet submarines, they viewed the tests as a relic of a Cold War that no longer exists and, therefore, unnecessary.
When the islanders discovered that the Navy had already spent many years and millions of dollars bringing the SURTASS LFA system to the deployment stage before conducting an Environmental Impact Statement (EIS) and only agreed to prepare an EIS after an environmental group caught the Navy violating numerous environmental laws, the tests appeared to be little more than window dressing for a decision already made.
The initiation of the tests on March 1 or 2, 1998 only intensified the controversy. More and more people on the island became involved in one form or another of opposition to the testing.
Ben White of the Animal Welfare Institute flew from Washington State to organize direct action opposition. Local boat captains volunteered to ferry swimmers out to the Navy's broadcasting boat where the swimmers would enter the water. The protocol for the tests called for turning off the broadcast equipment, if human swimmers were nearby, so the protesters forced the tests to stop on various occasions.
An international email campaign began to alert people to what was happening in Hawai'i and to urge protest messages be sent to President Clinton, Vice President Gore, the Secretary of the Navy, and other federal and state officials.
Benedick Howard set up a special web site carried daily updates and provided information on how people could register their opposition to the testing. Eventually, tens of thousands of messages flowed into federal offices protesting the testing.
A political effort resulted in a unanimous letter from the Hawai'i County Council to the President and other federal officials calling for suspension of the tests until further discussions could be held.
On February 23, 1998, the first of four law suits sought to stop the testing with a Temporary Restraining Order (TRO). The Ocean Mammal Institute, Earth Island Institute, Greenpeace Foundation, Animal Welfare Institute, and Earthtrust, represented by Earthjustice Legal Defense Fund in Honolulu, filed a suit challenging the failure of the Navy to complete the Environmental Impact Statement (EIS) prior to conducting tests with a potential for harm. The essential argument in the suit is that the Navy reversed the requirements of the National Environmental Policy Act by conducting such testing prior to completion of the EIS.
Over the next thirty days, three more suits were filed.
All the cases sought relief beyond the emergency order (TRO), such as preliminary injunctions and permanent injunctions. The rulings on the TRO applications, in most cases, did not address those questions.
The actual status of the cases is as follows:
Suit 1: On February 23, four environmental organizations filed suit seeking to enjoin any further testing until the EIS is completed. After denying the TRO, Judge Gillmor also denied the preliminary injunction. An appeal of that denial is now pending before the Ninth Circuit Court of Appeals.
Suit 2: On March 10, Na Koa O Pu'u Kohola Heiau, Warriors of the Temple on the Mound of the Whale, filed a suit challenging the testing as interfering with their spiritual practices, which hold the whale to be sacred and an integral part of their sacred practices. Hank Fergerstrom, a member of Na Koa, filed the suit pro se and proceeded to represent himself with advice and assistance from attorneys in the other cases.
Judge Alan Kay denied the TRO. At that time, there had been no compilation of the evidence of adverse effects from the testing. There have been no further proceedings on the preliminary or permanent injunctions.
Suit 3: On March 18, Hawai'i County Green Party, represented by Lanny Sinkin in Hilo, filed suit seeking to enjoin any further testing based on the actual evidence of adverse effects from the testing. The suit alleges nine separate violations of the mitigation requirements found in the Environmental Assessment and the Permit from NMFS.
The mitigation requirements found in Section 6 of the Permit (emphasis added) are:
Judge Alan Kay denied the TRO. There have been no further proceedings on the preliminary or permanent injunction.
Suit 4: Kanoa Inc. dba Body Glove Cruises, which operates a whale watching company, filed suit after not seeing any whales for five days (March 18-22). The company halted their whale watch tours and claim damages of $60,000 in lost revenue. The suit, also filed by Lanny Sinkin, seeks injunctive relief to stop any further testing, compensatory damages for the lost revenue, and punitive damages based on the failure of the defendants to stop the testing in violation of the mitigation requirements. This case presented even stronger evidence focused on four of the violations raised in the Green Party case.
Judge David Ezra denied the TRO and dismissed the case based on finding an absence of jurisdiction under the National Environmental Policy Act and the Endangered Species Act. The essence of that ruling was that the "purely economic" interests of the plaintiff are not considered within the zone of interests providing standing to sue under either act. A secondary ruling was that the Secretary of Commerce and violators did not have the required sixty days notice before suit was filed.
Plaintiff responded with a motion to reconsider, which is now pending. In that motion, plaintiff pointed out that whale watching is already recognized by prior decisions of the Ninth Circuit to constitute aesthetic and recreational interest and that such interests are recognized as sufficient to permit filing suit under either act. The interpretation of plaintiff's interests as purely economic ignored the nature of the activity in question (whale watching).
Plaintiff further responded that the filing of the Green Party suit on March 17, which named the Secretary and the violators, had obviously placed the Secretary and the violators on notice of the violations. In the week between the filing of that suit and the filing of the Kanoa Inc. dba Body Glove Cruises suit, the defendants took no action. Furthermore, the Endangered Species Act contains an emergency clause permitting the filing of suit immediately, which the court had overlooked.
Either reinstatement of the case by the district court judge or by the Ninth Circuit on appeal is highly likely.
Summary of Plaintiff's arguments:
(1) Absence of Whales
Plaintiff submitted extensive evidence from whale watch boat captains, fishermen, and others documenting a decline in the number of whales in the test area beginning at the same time the testing began (first week in March) and continuing until there were no whales present in the area prior to the suit being filed. Kanoa Inc. dba Body Glove Cruises stated that their decision to close down was based on five continuous days without sighting a single whale (March 18-22). Kanoa Inc. dba Body Glove Cruises alleged that the only reasonable explanation for the disappearance of the whales was the testing program.
The defendants responded: (a) presenting results of an aerial survey taken on March 1 and 8 showing numerous whales off the west coast, (b) acknowledging that their own observers saw a dramatic decline in the period beginning March 18, (c) attributing the rapid decline in the number of whales to the beginning of a seasonal migration out of the islands, (d) suggesting that El Nino might be responsible for the whale exodus, and (e) characterizing the observations provided by plaintiff as anecdotal and lacking scientific credibility.
As to the aerial survey, plaintiff pointed out that the survey covered a very extensive area from the northernmost point of the island to the southernmost point and 25-30 nautical miles off shore. The count could, therefore, mask an effect in the more limited area where the testing was taking place. Absent distribution, the government did not refute the observations of the whale boat captains for the March 1 through 18 period.
As to the time period in which there was agreement that a rapid decline in the number of whales had taken place, plaintiff pointed out that the defendants did not provide any data from Niihau down through Maui that would support the proposition that a seasonal migration was underway. The only data available to the court was from the west coast of Hawai'i.
Without the supporting data island wide, there was nothing in the record to support the proposition that a seasonal migration was underway and, therefore, the court did not have to defer to the expertise of the federal agencies and accept their conclusion.
Even if later evidence tends to support the seasonal migration theory, that evidence was not available to the Navy, the scientists, or the NMFS when they made their decisions not to immediately suspend the testing based on the absence of whales in the test area.
Similarly for El Nino, with data only from the west side of Hawai'i, there would be no basis for concluding that El Nino somehow affected that area differently than any other area.
As to the anecdotal nature of plaintiff's evidence, plaintiff argued that the observational experience of those filing declarations, which amounted to more than 125 years cumulative experience, essentially represented expert testimony. Furthermore, the absence of any countering data from the defendants made the declarations from the local observers the only substantive data available on the number of whales present in the testing area.
The Permit required suspension of testing if there was abnormal absence of whales. Plaintiff contended that the evidence of an abnormal absence of whales was uncontested and that the failure to suspend was a violation of the permit.
(2) Injury to human
Plaintiff submitted the declaration of Chris Reid, which, in part, discussed her experience of being in the water during a broadcast of the SURTASS LFA and emerging from the water feeling disoriented, nauseous, light-headed, and otherwise ill; the declaration of the boat captain who recorded the broadcast taking place at the time Chris was in the water; and the declaration of the doctor who examined Chris and found her to be demonstrating symptoms comparable to an acute trauma patient in a hospital.
In response, defendant admitted that Ms. Reid was exposed to 125 dB during the period she was in the water. Defendants said this exposure was similar to the sound of a Humpback Whale singing at 400 meters distance and said nothing more.
Plaintiff argued in the hearing that the government response admitted exposure and made no effort to argue that such an exposure could not cause the physiological injury recounted by Ms. Reid. Absent any countering evidence from the defendants, the court had a record supporting the conclusion that Ms. Reid was injured by the broadcast.
The declarations of Ms. Reid and the doctor were filed on March 25. The defendants did not suspend testing at that time nor when they subsequently concluded that Ms Reid had been exposed.
Injury to a human surely was a basis for suspension of the tests. Furthermore, the key areas in which the SURTASS LFA is intended for use are coastal areas, where the noise of boats and other activity make detection of submarines acoustically even harder. Given that swimmers, divers, and other humans using the waters are likely to be found in such areas, the major intended use for SURTASS LFA appears to have the greatest potential for harm to humans.
(3) Abnormal dolphin behavior
Ms. Reid also submitted a declaration detailing the behavior of dolphins while she was in the water and the broadcast was taking place. The behavior, in her view as a long term observer of the dolphins, was abnormal, including staying close to shore, staying near the surface, and excessive vocalization.
The response of the defendants admitting the 125 dB exposure of Ms. Reid was tantamount to an admission that the dolphins were exposed as well. The defendants made no argument and provided no evidence contradicting Ms. Reid's conclusion that the abnormal behavior of the dolphins was associated with the test broadcast.
The permit required suspension if marine mammals were observed demonstrating excessive time on the surface, excessive vocalization, etc. The defendants did not suspend the tests once they were aware of the dolphins' exposure and behavior.
(4) Baby Humpback Whale
The evidence of a baby Humpback Whale, with no mother whale present, excessively breaching, pectoral slapping, tail slapping, and remaining within 100 feet of shore for hours was offered by plaintiff as another basis for suspension and as proof of a violation for failure to suspend.
As part of their response, defendants filed a declaration from Ann Terbush of the National Marine Fisheries Service in Washington, D.C. In her declaration, Ms. Terbush recounted an incident related to the ATOC testing (another noise broadcasting experiement). In that incident, a fisherman saw a dead whale and reported that fact. The ATOC team immediately suspended transmissions and launched an aerial search for the whale carcass (unsuccessful).
In contrast, when the National Marine Fisheries Service office in Honolulu received the report of the baby Humpback Whale in distress on March 9, the only response was to request the observers to provide their data and report if they saw the whale again and to ask other observers to keep an eye out for a lone baby whale. When the observers provided their data demonstrating the behavior and position of the baby, the NMFS took no further action.
Plaintiff argued that the contrast between the proper response in the ATOC experiment and the absence of any substantive response in the SURTASS LFA experiment demonstrated that enforcement of the permit in the latter testing was negligent, if not grossly negligent.
(5) Evidence of bias
Plaintiff presented the court with evidence that the U.S. Navy had been developing the SURTASS LFA system since 1988 [later discovered to be 1980], that more than 20 tests of the system had taken place in various oceans, and that no environmental impact process was in place until environmental organizations found out about the system in 1996. The illegal development and testing and the amount of investment in equipment, research, a ship to carry the SURTASS LFA (TAGOS-23), etc. provided evidence to support a conclusion that the objectivity of the current tests should be carefully scrutinized, e.g. the pressure to deploy based on sunk costs would be present and might influence objectivity. The estimated cost of the TAGOS-23 ship alone is $60 million. The Navy did not refute the historical evidence presented. They did argue that the TAGOS-23 ship now under development would have multiple uses, even if the SURTASS LFA system was not deployed. The fact remains that there are no ships in the Navy fleet capable of carrying the system now and that TAGOS-23 was specifically designed to carry the system.
These suits, particularly the latter three, pose a real threat to the deployment of the SURTASS LFA system. If a court agrees that the low level testing either caused or could cause irreparable harm, then the obvious conclusion is that the full power system will cause irreparable harm. A courageous judge could find that the deployment itself must be enjoined based on the testing in Hawai'i. While such a ruling would be difficult to obtain, given all the pressures against such a ruling, the possibility does exist that the Hawai'i experience will be the end of SURTASS LFA.
It may well be premature to assume that there will be no more tests. The application filed for the permit to test off Hawai'i specifically stated that conditions, such as El Nino, might preclude a full testing period. The application specifically requested an extension of the permit to the same Hawaiian waters for the 1999 Humpback Whale season. While the permit will expire in October, 1998, the intent expressed in the application may well still be there because the scientific team did not complete a full test schedule.
The Environmental Assessment described the testing as 20 days of broadcasts with 30 to 40 transmissions or 600 to 800 transmissions total.
From evidence available in the Kanoa Inc. dba Body Glove Cruises case, we had already calculated that the most the scientists could have completed was 490. In a recent communication by Chris Clark, he states the scientists completed "over 30 playback experiments," which would be only 300+ transmissions (10 per playback). Obviously completing something around 50% of the minimum number of transmissions and something around 40% of the maximum transmissions planned does not constitute a very good record. In a post-test meeting, Chris Clark apparently did express dissatisfaction with the number of tests completed and a desire to conduct further testing.
While public hostility, direct action obstruction, and litigation might well cause the scientists to pause before returning to Hawai'i, the possibility does exist of conducting tests elsewhere, such as Alaska?
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