On Friday night, the U.S. Court of Appeals issued a ruling on Navy sonar off southern California.  This is the first ruling by a U.S. appeals court on the merits of this issue; and it came down on the same day as a lower court decision on Hawaii sonar training, which Paul Achitoff summarized.in a recent posting.

In January (as many of you know), a federal court issued an order that required additional mitigation of the Navy while allowing it to continue training off southern California.  Within two weeks, the White House issued “waivers” that would have effectively exempted the Navy from the requirements of the National Environmental Policy Act (NEPA) and Coastal Zone Management Act (CZMA), the two laws that the Navy was found to have violated.

This new 108-page ruling from the Court of Appeals affirms that the Navy had violated the law, that the mitigation the district court prescribed was reasonable and in the public interest, and that the White House NEPA waiver was illegal.  (The lower court also found the President’s CZMA waiver to be constitutionally suspect, but both courts declined to rule on that issue since the case could be resolved on narrower grounds.)

The mitigation measures required under the order include geographic restrictions (i.e., exclusions on sonar use within 12 nm of shore and within the Catalina Basin, which lies between Santa Catalina and San Clemente Islands); an expanded safety zone provision, requiring shut-down if marine mammals are detected within 2200 yards; a provision requiring the Navy to power down by 6 dB during significant surface ducting conditions; and enhanced monitoring requirements (including dedicated aerial surveillance before exercises, training of visual observers by NMFS, and use of the Navy’s range instrumentation for passive acoustic monitoring to the extent practical).

In its decision, the Court of Appeals upheld the injunction, but temporarily modified the safety zone and surface-ducting provisions to allow the Navy time to appeal to the U.S. Supreme Court.

As always, please let me know if you’d like a copy of the ruling.

Cheers,

Michael

Michael Jasny

Senior Policy Analyst

Natural Resources Defense Council

4479 W. 5th Avenue

Vancouver, BC  V6R1S4

tel. 604-736-9386

fax 310-434-2399

mjasny@nrdc.org

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