Judge Halts Baja Research After Two Whale Deaths

SAN FRANCISCO, California, October 29, 2002 (ENS) - A federal district court judge ordered the National Science Foundation to stop using high decibel airguns in the Gulf of California yesterday, citing concern over possible harm to whales that environmentalists believe the research project has caused.

The National Science Foundation (NSF) had been using the airguns to fire high energy acoustic bursts at the sea floor to help map a fault in the earth's crust.

It is these high energy acoustic bursts that The Center for Biological Diversity believes is the likely cause of the death of two beaked whales, which found stranded on September 25 at Isla San Jose in the Gulf of California which separates Mexico's Baja Peninsula from mainland Mexico.


Satellite image of Baja, Mexico and the Gulf of California. The "x" marks the approximate location of the whale strandings. (Satellite image courtesy NASA)
The whales were discovered by National Marine Fisheries Service scientists, who were on vacation at the time. After examining the dead animals, the scientists determined the activities of the NSF project were probably responsible for their deaths.

After NSF refused its request to stop its work, the Center filed suit in federal district court in San Francisco on October 18 to halt the research project, citing concern for marine wildlife and accusing the National Science Foundation of not having the correct environmental permits for its activities.

On Monday, U.S. Magistrate James Larson found that NSF was likely violating both the National Environmental Policy Act and the Marine Mammal Protection Act and has ordered suspension of the use of the airguns.

Closeup view of airgun explosion (Photo courtesy University of California-Santa Cruz Marine Geophysics Dept.)
"We're delighted that the judge ordered a halt to this dangerous and illegal project," said Brendan Cummings, an attorney with the Center for Biological Diversity. "We had hoped that such a renowned scientific institution as the NSF would exercise some concern over the environmental effects of its actions. Unfortunately, the NSF has displayed the same disregard of environmental laws that we have come to expect from this administration."

The ruling has effectively terminated the NSF's research project, which began on September 18 and was scheduled to conclude by November 4.

The science foundation is unlikely to challenge the decision, but it does not believe that it in any way endangered marine wildlife nor disregarded environmental laws in carrying out its research, which was funded by a $1.6 million grant from the National Science Foundation.

"We lost a huge amount of the science," said NSF spokesperson Curt Suplee. "It will be better than nothing, but it wouldn't be what they needed. Will it justify the cost of the cruise? Probably not."

The agency is convinced it did not need to complete an environmental impact statement under the National Environmental Policy Act because it was operating in Mexican waters. NEPA, however, is applicable to "major federal actions," and as a federally funded project using a federal agency's resources, this research fits the bill.

"If any agency should know better, it is the NSF," Cummings said, noting that NSF was party to a seminal case involving application of NEPA to waters outside the U.S. The Marine Mammal Protection Act applies, Cummings explained, for several reasons, primarily, the use of a sound source loud enough to potentially impact marine wildlife.


R/V Maurice-Ewing (Photo courtesy Lamont-Doherty Earth Observatory of Columbia University)
In order to map and study the underwater plate boundaries of the earth's crust, scientists have to bounce sound off the ocean floor. The R/V Maurice-Ewing, a research vessel owned by the National Science Foundation, is equipped with 20 airguns designed for this kind of project. According Suplee, the vessel has been in use for 12 years and has mapped hundreds of thousands of miles without incident.

"To the best of NSF's knowledge, there has never been a reported incident of injury or death to a marine mammal," Suplee said. "We still believe that is the case. This is not new technology that we started for the first time on this cruise to torment marine wildlife."

True, said Cummings, but NSF should have taken into consideration the possibility that marine mammals might have been affected. The decibel levels of the array of airguns on the R/V Maurice-Ewing can be louder than the techonology used by the Navy, he added.

The technology used on the R/V Maurice Ewing is not the same as what the U.S. Navy's high intensity, low frequency, active sonar, Suplee added. But that type of sonar is not the only kind that is damaging to whales. U.S. Naval operations involving quieter, medium intensity sonar have been directly linked to beaked whale strandings in the Bahamas in 2000. NATO naval exercises were linked to the deaths of a dozen whales in the Canary Islands in September.


Cuvier's beaked whale in the Gulf of Mexico (Photo by Heinrich Schatz courtesy MMS)
NSF also argues that the R/V Maurice-Ewing was, at a minimum, 40 miles from where the whales were found. In addition, NSF immediately halted the project when it learned of the deaths, only restarting a week later after what Suplee called extensive efforts to ensure the research activities were not the cause.

"We waited an entire week until the scientists conducting this were all satisfied that we were not involved in this unfortunate stranding," Suplee said. "We promised everyone in sight that if there was even the remotest indication that this was dangerous, that we'd shut it down. We've not only been legal. Legal is easy. We've done everything that is morally and ethically responsible in this."

Cummings does not argue that NSF did not take this seriously once the issue with the whales had come up. The problem is that NSF failed to take the possibility of damage to marine mammals into consideration during the funding and planning of the project.

"They did the research first and then once the whale issue became a concern, were scrambling to try to justify how it wasn't impacting whales rather than trying to do that first," Cummings said.

"We've perhaps only scratched the surface, and there may be other NSF funded projects out there where they've ignored their obligations to carry out environmental review before funding them or carrying them out," said Cummings. "Our goal is not to stop this research, it is to make sure NSF looks at the possible effects of the research before carrying it out."