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First ruling in new sonar challenges fails to limit huge take numbers

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The first ruling is in from the latest round of legal challenges to Naval training permits, and it’s a split decision.  You’ll need to click through to read the full post to get all the details, but here’s a preview of the conclusion you’ll find at the end:

It appears that the places that the court found NMFS falling short are in the details of how they prepare and analyze information, while the end results of the Navy activities and NMFS analysis and permits were upheld as valid. The court did not accept the plaintiff’s core concerns about the huge numbers of animals authorized to be affected (as litigated on the questions of protected habitats, mitigation measures, and cumulative impacts), deferring to the NMFS analysis that deemed even these large numbers to be acceptable, largely because most impacts are minor and temporary. The rulings that went against NMFS each appear to require simply more data analysis, which will then be fed into the same decision-making process that has been upheld as valid. 

In 2012, Earthjustice, NRDC, and others challenged both the 2010 Northwest Training Range Complex permits authorizing five years of mid-frequency active sonar and explosions at sea, and permits authorizing global deployment of low-frequency active sonar through August 2017. While earlier challenges targeted the Navy’s environmental analysisor originally, the lack thereof—and ran aground when the Supreme Court ruled the Navy has broad discretion to weigh environmental safety against national security interests, this new round of lawsuits is directed at the National Marine Fisheries Service’s regulations and permits for the activities. 

In both cases, the primary focus of the challenges, at least as described in press releases, was insufficient protection of biologically important areas.  For several years, NRDC and others have stressed that Navy training ranges, which stretch along nearly the entire east and west coasts of the US, contain enough area for diverse training while setting aside some seasonal or year-round exclusion zones where training is avoided due to concentrations of marine animals.  Navy estimates of the numbers of animals likely to hear sonar or explosions, leading to either behavioral changes or injury, are alarmingly high, and the plaintiffs suggest that these numbers could be reduced significantly by setting some areas off limits, at least at key times. Unlike in previous challenges directed at the Navy itself, the plaintiffs did not seek any sort of injunction to halt the training exercises; rather, they asked that the court require the NMFS to revisit and revise their previous rules or authorizations in light of any deficiencies the court determined to be present.

As the NWTRC case moved into the argument phase, several specific challenges to NMFS procedures, analysis, and conclusions were raised and addressed. In a ruling issued by US Magistrate Judge Nandor Vadas in late September, the plaintiffs came away with at least a temporary win on several points, while the NMFS prevailed on several other fronts, including on the fundamental arguments about habitat protection and long-term impacts.  As in previous rounds of this legal battle, it appears that the end result will be Navy training continuing pretty much as it was before any of the legal challenges began—though with detailed analysis of potential impacts continuing to be pushed into new realms by the legal challenges.

The court ruled that the NMFS had improperly failed to include some relevant studies from 2010 and 2011 when issuing a 2012 Letter of Authorization and Incidental Take Statement, two years after the initial Five-Year Regulations were issued, and so did not rely on the “best available evidence” and likely underestimated the number of animals affected by Navy activity in its 2012 permitting documents.  In addition, the court ruled that the NMFS should analyze impacts not just over the five years of each planning cycle, but for a longer (unspecified) time period, because Navy training is considered to be a permanent, long-term activity.  Over the next month, NMFS will file a brief describing what they see as an appropriate scope and duration of any order to change their previous documents, and the plaintiffs will file a reply; presumably, the Court will rule shortly thereafter on specific remedies.

However, the NMFS prevailed on several substantial issues, including the primary one and two important related challenges.  On the central question of setting aside exclusion zones to better protect essential habitats, the court ruled that the NMFS had given such exclusions due consideration, and lawfully concluded that such exclusions would not be likely to reduce take numbers significantly.  Likewise, the court ruled that NMFS determination of no significant impact did not rely on insufficient mitigation measures (primarily visual observers) in making its assessment of likely harm; rather, NMFS determined that even before mitigation measures were implemented, the numbers of animals affected and the degree of impact did not pose long-term risks to local populations.  

In a ruling that somewhat confounds the plaintiffs’ win on the “best available evidence” part of the case, the court ruled that the 2012 Letter of Authorization was not required to change permitting conditions because of the possibly higher take numbers that the 2010 and 2011 research might have implied, but only had to address the initial 2010 Final Rule’s requirements; this is a bit of a legal technicality ruling, in that both NMFS and the court agree that the plaintiffs could petition NMFS to amend that Rule, but not challenge the LOAs that follow from it. Apparently, the court feels that the LOA should have acknowledged the more recent studies, but did not need to change its permitting conditions based on them. UPDATE, 10/10/13: I’ve learned that these two rulings reflect some legal differences between requirements under the Marine Mammal Protection Act and the Endangered Species Act; the plaintiffs won their arguments re: the ESA and the 2012 Biological Opinion and Incidental Take Statement, but not under the MMPA and the Letter of Authorization issued under it.

It’s a somewhat confusing ruling (at least for my limited legal mind), in that the court explicitly rejected the NMFS claim that its consideration of the new studies in the forthcoming 5-year plan is a sufficient approach to integrate the new findings into planning conditions, while also denying, at least in part, the plaintiffs’ efforts to apply the results to the current 5-year period. (Ed. note: it’s hard to imagine that the “best available evidence” ruling is meant to suggest that every new research study published can be grounds for challenging and revising the 5-year Regulations; in practice, these 5-year plans take at least 3 years of preparation, analysis, comment, and revision to complete.  By the time these suits were filed in 2012, the planning process for the 2014-19 Navy training was well underway, and was including the contentious 2010 and 2011 studies in its proposed impact numbers.)

A final ruling denied the plaintiffs’ claim that NMFS failed to consider indirect cumulative and long-term effects on animal populations.  Interestingly, the NMFS defense points to explicit evaluation of aggregate effects, but in the 2012 LOA Biological Opinion, rather than in the 2010 Final Rule; one must wonder whether legal challenges on these grounds had an effect on the drafting of the 2012 document.  In any case, the NMFS cumulative, long-term impact analysis was ruled sufficient, with the highlighted caveat from the court, “as it was then defined.”  This apparently refers to the court’s separate ruling that such impacts should be evaluated for some unspecified longer timeline than the five years of any given management plan. 

While I’m no legal expert, it appears that the places that the court found NMFS falling short are in the details of how they prepare and analyze information, while the end results of the Navy activities and NMFS analysis and permits were found to be valid. The court did not accept the plaintiff’s core concerns about the huge numbers of animals authorized to be affected (as litigated on the questions of protected habitats, mitigation measures, and cumulative impacts), deferring to the NMFS analysis that deemed even these large numbers to be acceptable, largely because most impacts are minor and temporary. (See this in-depth AEI analysis of the most recent Proposed Rules for Navy training for more on the the rationale behind Navy and NMFS thinking on these questions.)  

The rulings that went against NMFS each appear to require simply more data analysis, which will then be fed into the same decision-making process that has been upheld as valid. Indeed, the 2014-2019 Navy training range plans currently being finalized do take into account the newer research that was highlighted in this case, and NMFS has approved the resultant (much) larger number of Incidental Takes, relying on analysis very similar to that upheld here—thus suggesting that increasing the numbers in the 2012 Incidental Take Statement that the court found lacking would not have hampered NMFS’s ability to issue the necessary permits.  With their cumulative impact assessment process similarly affirmed, it shouldn’t be hard for NMFS to extend that same analysis out beyond the current five-year time horizon, thus curing the other shortcoming identified by the court.

The rulings likely came as a disappointment to the plaintiffs and to marine mammal lovers, who are deeply outraged at the huge numbers of takes being approved by the NMFS in each of the Navy training 5-year plans: millions of animals hearing and potentially changing behavior each year, thousands potentially exposed to damaging sound levels that could trigger partial hearing loss.  Each of the legal challenges to these core concerns were turned aside in this case; it will be interesting to see if and how the current round of planning documents may be challenged once they are finalized.  Are there other legal avenues that could turn the huge take numbers, or a relatively cursory cumulative/long-term impact analysis, into a weak leg in the Navy plans or NMFS permits?  Plaintiffs have expressed satisfaction that the scope of cumulative effects analysis must cover more than the five-year period; this may become a significant analysis or legal hurdle in future planning cycles.  Or, will the lack of definite evidence of widespread harm during the past decades of similar activities continue to provide support for the recurring assessment that effects are minimal, even though Navy activities are heard and may cause some impacts at distances 50 or more miles?  I doubt that the legal jousting match is over yet.

 

As a side note, it’s always interesting (or kind of amusing) to see the ways that the press oversimplifies these complex court rulings.  In this case, most of the headlines I saw made it sound as if the court had derailed Navy sonar training:

  • Sound justice: Judge blocks US Navy’s sonar activities that harm whales
  • Environmentalists win US court fight to protect whales from Navy sonar
  • Judge Rules in Favor of Whales, Dolphins Deafened by Navy Sonar
  • Federal Judge Tells Navy to Back off North Coast Sonar Testing Plan

Only the LA Times passes my headline test:

  • Agency ignored best science on sonar, marine mammals, judge rules: National Marine Fisheries Service probably underestimated the level of harm to whales and other animals posed by Navy tests, judge says.

Each of the press reports I saw addressed only the two points on which the plaintiffs had prevailed, and did not mention any of the more substantial rulings that affirmed the NMFS process.  This may be thanks to using plaintiff press releases as their only source; neither the NMFS nor Navy was commenting publicly in the days following the ruling.  Still, nothing in the ruling “blocked” sonar activities or “protected” whales from sonar.  Indeed, while these cases often are framed in the press as challenges to navy sonar (since this was the initial hot-button issue that triggered closer scrutiny a decade ago), the Navy activities in the training ranges include many other exercises that cause acoustic exposures, including live fire exercises leading to in- and above-water explosions and “ship shock trials” that test the robustness of Navy ships by setting up large explosions nearby.  In most cases, more animals are exposed to explosion noise than to sonar noise, since such live-fire exercises are far more common than sonar exercises (again, for more detail, see this recent AEI analysis of the current round of planning).  In the NWTRC, for example, a total of 150 hours of sonar exercises takes place each year, generally in 90-minute sessions, and nearly always 50 nautical miles or more offshore. Still, the acoustic thresholds that are used to estimate physical harm or behavioral impacts are the same, whatever the sound source may be, and the validity of these thresholds, along with a goal of reducing the numbers of animals impacted, are the basis of many of the legal challenges.  

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