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Thursday, April 02, 2015

LEGAL: Important opinion issued in Navy sonar/explosives case

IWM caption : A depth charge explodes after it...
(Photo credit: Wikipedia)
A federal court in Hawaii has just issued an opinion in our case challenging Navy sonar and explosives activities, off Southern California and Hawaii, and NMFS' decision to authorize the Navy's take of marine mammals.

The Court ruled for Plaintiffs on all claims: for all parties under the U.S. Marine Mammal Protection Act and Endangered Species Act, and in favor of Conservation Council for Hawaii on the additional ESA and National Environmental Policy Act claims it raised in the related case.  

Among other points, it held, under the MMPA, that there was no "rational connection" between the facts on record and NMFS' determination that the takes resulting from the activity would have a "negligible impact" on marine mammal populations.  It also held that the agency's acceptance of the Navy's mitigation claims—namely that no mitigation beyond the use of safety zones was practicable—is arbitrary and capricious.

As the Court remarked, in declining to address some of the narrower arguments made by Plaintiffs:

[T]he problems this court identifies are so fundamental
that the court cannot conceive of a new Final Rule or new LOAs
that simply tweak the earlier documents and regurgitate old
language. If NMFS addresses the matters identified here, any new
Final Rule or new LOAs will need to be so completely different
from existing documents that present issues should be irrelevant.

In this case, NMFS authorized the Navy to take marine mammals some 9.6 million times over 5 years, mostly through behavioral disruption and temporary threshold shift, in the course of its sonar and explosives activities.  It also authorized some 2000 instances of permanent threshold shift and about 135 mortalities. 

Please send me an email offline if you'd like a copy of the opinion or have any questions. 

Michael jasny
Director, Marine Mammal Protection

NATURAL RESOURCES DEFENSE COUNCIL
4479 W. 5th Avenue
Vancouver, bc v6r1s4
T 604.736.9386
c 310.560.5536
mjasny@NRDC.ORG         

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