[MARMAM] first appeals court ruling on sonar

Jasny, Michael mjasny at nrdc.org
Mon Mar 3 11:51:31 PST 2008

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


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.








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 at nrdc.org




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