Injunction Bars Sonar Testing on Gray Whales

SAN FRANCISCO, California, January 27, 2003 (ENS) - A federal judge has issued a permanent injunction against the testing of a controversial sonar system that critics charge could harm migrating gray whales along the California coast.

Judge Samual Conti had earlier entered a temporary restraining order stopping the testing, designed by Woods Hole Oceanographic Institute (WHOI), until a full hearing could be held. The judge based his decision, in part, on the failure of the National Marine Fisheries Service (NMFS) to perform an analysis of possible environmental impacts from the testing and on the potential for the testing to harm gray whales.

NMFS had claimed a "categorical exclusion" that allowed them to grant amendments to an existing permit without conducting an environmental assessment. But a variety of environmental groups argued that six different exceptions to this rule applied in this case.

Judge Conti found the exclusion claim did not adequately consider a number of exceptions that could have required preparation of an environmental analysis. His ruling found that an exception for public controversy applied.

"Plaintiffs have proven that NMFS acted arbitrarily, capriciously, and in a manner contrary to law when, during its review of the application for the First Amended Permit and the Third Amended Permit, it decided not to apply the exception to categorical exclusion relating to actions that are the subject of public controversy," Conti wrote.

Dr. Peter Tyack of WHOI had planned to deploy sonar from Pacific Gas & Electric's property at Point Buchon, California from January 8 to 24. The experiment was aimed at learning whether broadcasting high frequency sonar pulses could keep whales from colliding with ships. Environmental groups charged that Tyack's sonar experiment could affect migrating gray whales, including pregnant whales and newborn calves.

The judge cited two earlier cases relating to acoustic testing on marine mammals that had resulted in injunctions. The judge noted that NMFS had prepared an environmental assessment for the initial permit based on the existence of such controversy.

"The presence of the controversy was obvious in 2000," Judge Conti ruled. "It was also obvious in 2001 and in 2002 when NMFS was considering Dr. Tyack's applications for the First Amended Permit and the Third Amended Permit. It is certainly no less obvious today."

The ruling revokes the first and third amendments to a permit granted in August 2000. The amendments permitted additional activities, including the sonar testing on gray whales. The revocation of the amendments also prevents the tagging of humpback whales in Hawaii and increasing the sound levels reaching the whales to as high as 180 decibels.

"The likely harm is pain and/or injury that marine mammals will suffer when subjected to the sounds. It cannot be doubted that the sound will, at the very least, disturb the animals to whom they are broadcast."

The court did not revoke the initial permit, which allows sonar testing at low, mid, and high frequency levels on hundreds of thousands of marine mammals.

"We are thrilled that we were able to present sufficient evidence in a very short period of time to convince the judge to revoke the NMFS permits and stop Dr. Tyack's experiments on gray whales," said Lanny Sinkin, attorney for the plaintiffs.

Plaintiffs in the case were the Hawaii County Green Party, Australians for Animals, Stop LFAS [low frequency active sonar] Worldwide Network, Channel Islands Animal Protection Association, Robert Puddicombe, and Sea Sanctuary, Inc. The coalition is now drafting a petition aimed at returning gray whales to the endangered species list.