The following is a report on the testing of a new U.S. Navy sonar system. 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.
In 1980, the United States Navy began developing a sonar system using low frequency broadcasts to detect submarines. The existing listening devices on the ocean floor could not detect a new class of silent diesel electric submarines. The noise levels in coastal areas created the possibility that an undetected submarine could move close to shore. Development of the new sonar system -- 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 violated its 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 discovered the planned deployment of the system and alerted the Natural Resources Defense Council (NRDC). NRDC 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 reporting on the stranding and death 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 full power tests of a Low Frequency Active Sonar system being used on 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 loudness levels at least 1,000 time less than intended operational levels.
The scientists and 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%.
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.
On December 17, 1998, Dr. Chris Clark, 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 tried to portray the tests as harmless and beneficial to scientific understanding. From their perspective, the fact that the loudness of the broadcasts would be at least 1,000 times less than the planned deployment level 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 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 were 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 the oceans of the world 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 required turning off the broadcast equipment, if human swimmers were nearby. 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 carrying daily updates and 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 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. As of that date, 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 are:
Section 6 of the Permit (emphasis added).
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. A motion to reconsider is pending. Either reinstatement of the case by the district court judge or by the Ninth Circuit on appeal is highly likely.
Summary of arguments in Kanoa Inc. dba Body Glove Cruises v. William Jefferson Clinton and others:
(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 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.
The aerial 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.
Defendants agreed that a rapid decline in the number of whales had taken place after March 18. 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.
There was, therefore, no evidence of a seasonal migration when the Navy, the scientists, or the NMFS made their decisions to continue testing despite the numerous reports of whales moving out of 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, the observations of those filing declarations were based upon more than 125 years cumulative experience in the testing area and 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. The evidence of an abnormal absence of whales was uncontested and the failure to suspend was a violation of the permit.
(2) Injury to human
The evidence included (1) 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; (2) the declaration of the boat captain who recorded the broadcast taking place at the time Ms. Reid was in the water; and (3) the declaration of the doctor who examined Ms. Reid and found her to be demonstrating symptoms comparable to an acute trauma patient in a hospital.
Defendants 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.
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. Because 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.
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 experiment). 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.
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
The court heard 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 1995. The illegal development and testing and the amount of investment in equipment, research, a ship to carry the SURTASS LFA (TAGOS-23), etc. meant. the pressure to deploy would be great and objectivity of the tests questionable. 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 the extraordinary reluctance of federal judges to overturn Executive Branch decisions, 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 for the permit to test off Hawai'i specifically requested further testing on the Humpbacks in their 1999 season in Hawai'i. 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.
Weather, protestors in the water, and other factors reduced actual transmissions to approximately 300+, or approximately 50% of the minimum number of transmissions and 40% of the maximum transmissions planned. In a post-test meeting, the scientists expressed 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?
As the testing drew to a close, the Hawai'i State Legislature took up a resolution addressing the testing. The resolution has unanimously passed three committees of the House and is now moving to the Senate. The resolution includes the following clauses:
WHEREAS, there has been a large outpouring of public concern from the citizens of Hawaii, the nation, and the world who have protested this research because it may harm the marine life, or severely impede the whales' acoustic activities, or both; and ...
WHEREAS, there have been numerous reports of whale sightings and behaviors in West Hawaii coastal waters that may contribute to a better understanding of the actual impacts on marine life of this LFA sonar testing; therefore,
BE IT RESOLVED by the House of Representatives ... the Senate concurring, that if the findings of this research conclude that low frequency active sonar results in harm or adverse effects to marine mammals, sea turtles, and other marine life, that the state Legislature will not support the installation, deployment, or use in Hawaiian waters of any devices such as SURTASS LFA that would generate or be used to produce this type of sonar; and
BE IT FURTHER RESOLVED that the environmental impact statement should include a compilation and analysis of sightings and observations from whale-watch vessels, fishers, research organizations, and other sources ...;
BE IT FURTHER RESOLVED That the Navy not conduct further testing or use of SURTASS LFA devices in Hawaiian waters until completion and approval of the final project EIS, but no earlier than the end of the 1999 whale breeding/calving season in Hawaiian waters.
Excerpts from HCR (House Concurrent Resolution) 134, Hawai'i State Legislature.
The entire history of the SURTASS LFA system and the specific history in Hawai'i raise numerous policy issues.
First, as a classified program initiated during the Cold War, the Navy developed the SURTASS LFA system without complying with environmental laws. Are other classified programs being developed and/or used without adequate assessment of their environmental effects?
Second, the SURTASS LFA is meant to counter silent submarines sent against the United States. Are there programs begun during the Cold War, which are still being funded even after their initial purpose no longer justifies pursuit of the program?
Third, the National Marine Fisheries Service failed to aggressively enforce the mitigation requirements. Is the sunk cost in SURTASS LFA and the deployment-ready status of this system preventing an objective assessment of the environmental impacts of the system?
Fourth, a reasonable conclusion from the Hawai'i data is that Humpback Whales are very sensitive to sound in their breeding, calving, and nursing cycle. Even broadcasts 1,000 time less than deployment level can drive them out of their traditional reproducing grounds. A further reasonable conclusion is that exposure of human swimmers in the water to 125 dB, which is at least 1 million times less than deployment level, is physically harmful. Did the tests in Hawai'i produce sufficient evidence to conclude that deployment of SURTASS LFA would be environmentally unacceptable?
Fifth, while there are protocols protecting animals used for testing in laboratories, these same protocols are not applied to animals in the wild. Is there a need to adopt measures to ensure that scientific testing on animals in the wild is controlled to ensure protection of the animals to the greatest extent?
Sixth, this entire episode highlighted the issue of noise in the oceans. Numerous human activities result in emitting loud sounds into the ocean environment. There are already other sound broadcasts from various installations going into the oceans and that other nations are developing systems similar to SURTASS LFA. Is there a need for national regulation and international agreement on the levels of noise which can permissibly be emitted into the ocean environment?
These question should be addressed by Congress. Congress should make a swift assessment of whether any further funding should be sunk into the SURTASS LFA system.
There is a bureaucratic momentum pushing deployment of SURTASS LFA. That momentum is further encouraged by fear of adverse career effects of admitting a mistake. Congress can step in and cure both those problems.
Return to LFAS Litigation Index