UNITED STATES NAVY TESTING OF
LOW FREQUENCY ACTIVE SONAR
ON HUMPBACK WHALES AND OTHER BEINGS
OFF THE ISLAND OF HAWAII:   

By Lanny Sinkin

                                     
FACTS AND POLICY ISSUES

April 16, 1998

The following is a report on the testing of a new U.S. Navy sonar system. This system uses loud, low frequency sound to detect submarines. The Navy intends to deploy this system throughout the oceans of the world. The Navy plan will put the entire marine environment at risk.

In March 1998, the Navy conducted tests of this system directed at Humpback Whales in their breeding, calving, and nursing cycle off the west coast of Hawaii. The results demonstrated that adverse effects on whales, humans, and dolphins took place at sound levels far below the intended level for the deployed system.

From the Report 
 "When the
islanders discovered that the Navy had already spent millions of dollars bringing the SURTASS LFA (Low Frequency Active Sonar) to the deployment stage before preparing an Environmental Impact Statement (EIS)and that the Navy only agreed to prepare an EIS after an environmental group caught the Navy violating numerous environmental laws, the tests appeared to be little
more than window dressing for a decision already made."

BACKGROUND
In 1980, the United
States Navy began developing a sonar system using low frequency broadcasts to detect submarines. The existing listening devices on the ocean floor could not detect a new class of silent
diesel electric submarines. The noise levels in coastal areas created the possibility that an undetected submarine could move close to shore. Development of the new sonar system --
SURTASS LFA --, took place as a secret program. The SURTASS LFA system is intended fordeployment in eighty percent of the Earth's oceans.

Unfortunately, the United States Navy violated its obligations under various environmental statutes, including the National Environmental Policy Act, the Endangered Species Act, the Marine Mammal Protection Act, and the Coastal Zone Management Act. The Navy did not prepare an Environmental ImpactStatement(EIS) prior to beginning the development of the SURTASS LFA system.

During approximately fifteen years, the Navy moved from concept; through design, engineering, and construction; and to the point of deployment without a comprehensive look at the potential
environmental impact of this system on the marine environment or humans using the marine environment. In addition, the Navy commissioned a ship designed, in part, to carry the SURTASS
LFA.

In 1995, a scientist discovered the planned deployment of the system and alerted the Natural Resources Defense Council (NRDC). NRDC contacted the Navy to question the legality of the
Navy ignoring the environmental statutes.

The Navy agreed to prepare an EIS prior to final deployment of the system.  By that time, the sunk cost in the development of this system and the ship to carry the system was well into millions of dollars, perhaps hundreds of millions. Furthermore, the system had been extensively tested in various oceans, including full power tests.

Dr. Alexandros Frantzis published a letter in the March 5, 1998 issue of Nature reporting on the stranding and death of Curvier beaked whales off the coast of Greece. The stranding was
extraordinary both in terms of the number of whales stranded (12) and the location of the strandings (significantly distant from each other where previous strandings have almost always
been groups together). In his letter, Dr. Frantzis correlated the stranding with full power tests of a Low Frequency Active Sonar system broadcasting from a NATO research vessel. Dr. Frantzis
calculated the probability of the mass stranding occurring for reasons other than the sonar test as less than 0.07%.

As part of the EIS process, the Navy contracted with scientists to conduct a series of tests focused primarily on whales to determine their sensitivity to the low frequency broadcasts. These tests were to be conducted at loudness levels at least 1,000 times less than  intended operational levels.

The scientists and the Navy conducted tests in Phase I and II in the waters off California. Quicklook I, a report on the Phase I testing of the SURTASSLFA off the
coast of California, reported that vocalizations of Blue Whales declined 50% and vocalizations of Fin Whales decreased 30%.  The scientists do not consider this decrease biologically significant.

Phase III called for conducting tests off the west coast of the Island of Hawaii. The initiation, conduct, and results of those tests created a major controversy and strongly suggested the need
for a reevaluation of the entire program.

Evidence emerging from tests of the system supports a conclusion that the system is environmentally harmful and should not be deployed.

THE HAWAIIAN TESTS

On December 17, 1998, Dr. Chris Clark, lead scientist in the SURTASS LFA testing, applied for an amendment to his Phase I and II permit to include testing the system on Humpback and Sperm whales off the west coast of the Island of Hawaii. By that point in time, the limited Humpback Whale season in Hawaii was almost one third over. The whales generally arrive in November and leave in mid-to-late April. The Humpback Whales come to the waters off Hawaii to breed, birth, and nurse their calves. The amendment sought specifically to test the system in this particular cycle. The National Marine Fisheries Service (NMFS) posted notice of the amendment application in the Federal Register on December 23, 1997. That notice set a deadline for comments at January 22, 1998. On February 7, 1998, the Navy and scientists conducted an informational meeting on the Island of Hawaii, the first such presentation of the program on the island.

On February 12, 1998, NMFS issued an Environmental Assessment for the amendment and issued the amendment. On February 20, 1998, NMFS placed a notice of the issued amendment in the Federal Register. On February 25, 1998, the United States Navy and the scientists began initial calibration of the SURTASS LFA system of the west coast of the Island of Hawaii.

From March 1 or 2 through March 29, 1998, the tests broadcast loud, low frequency sounds at targeted Humpback Whales. Initial reports indicate that the Navy and scientists did not
locate any Sperm Whales for testing.

THE HAWAIIAN CONTROVERSY

The Hawaiian controversy began at the February 7 informational meeting. The Navy and the scientists assumed they were simply going to provide information about the tests to the public. Instead, they found themselves facing an irate audience and a meeting best described as chaotic. A very divergent perspective on the tests emerged, which continued to manifest throughout the testing period.

The Navy and the scientists tried to portray the tests as harmless and beneficial to scientific understanding. From their perspective, the fact that the loudness of the broadcasts would be at
least 1,000 times less than the planned deployment level meant that the broadcasts were safe. To the islanders, the testing was outrageous, unethical, unnecessary, and essentially fraudulent. The
Navy and scientists came to the island with no understanding of the deep bond between the islanders and the whales. The return of the Humpback Whales to Hawaii in winter is a source of
great joy to many in the islands. Watching the breaching, tail slapping, pectoral slapping, birthing, and other activities of the whales is an important part of life on island. People can swim in the
waters and listen to the singing. The relationship to the whales is, for many, very personal and spiritual. The testing came as a shock compared to a second Pearl Harbor, only this time the
attacking military was supposedly friendly.

At the political level, a lengthy process had just been completed to establish a National Marine Humpback Whale Sanctuary in Hawaiian waters.   For a federal agency to come to the Sanctuary area shortly after the dedication with a permit to harass the very whales protected appeared to be"grand hypocrisy," to quote a letter from Representative Patsy Mink to the National Marine Fisheries Service. The Humpback Whale is also the state animal of Hawaii. The idea of deliberately disrupting in any way the breeding, birthing, and nursing cycle of the whales is unthinkable to islanders. The Humpbacks area species slowly recovering from human devastation. With little knowledge of their natural cycles, the scientists risked disturbing these endangered beings at the most critical point in their lives and, thereby, possibly endangering their recovery as a species. When the islanders discovered that this testing was part of a planned deployment of an even louder and potentially more damaging system throughout 80% of the Earth's oceans in order to detect quiet submarines, they viewed the tests as a relic of a Cold War that no longer exists and, therefore, unnecessary. When the islanders discovered that the Navy had already spent many years and millions of dollars bringing the SURTASS LFA system to the deployment stage before conducting an Environmental Impact Statement (EIS) and only agreed to prepare an EIS after an environmental group caught the Navy violating numerous environmental laws, the tests appeared to be little more than window dressing for a decision already made.

THE TESTING PERIOD

The initiation of the tests on March 1 or 2, 1998 only intensified the controversy. More and more people on the island became involved in one form or another of opposition to the testing. Ben White of the Animal Welfare Institute flew from Washington State to organize direct action opposition. Local boat captains volunteered to ferry swimmers out to the Navy's broadcasting boat where the swimmers would enter the water.

The protocol for the tests required turning off the broadcast equipment, if human swimmers were nearby. The protesters forced the tests to stop on various occasions. An international email
campaign began to alert people to what was happening in Hawaii and to urge protest messages be sent to President Clinton, Vice-president Gore, the Secretary of the Navy, and other federal and
state officials. Benedick Howard set up a special web site carrying daily updates and information on how people could register their opposition to the testing.  Eventually, tens of thousands of
messages flowed into federal offices protesting the testing. A political effort resulted in a unanimous letter from the Hawaii County council to the President and other federal officials
calling for suspension of the tests until further discussions could be held. On February 23, 1998, the first of four law suits sought to stop the testing with a Temporary Restraining Order (TRO).
The Ocean Mammal Institute, Earth Island Institute, Greenpeace Foundation, Animal Welfare Institute, and Earthtrust, represented by Earthjustice Legal Defense Fund in Honolulu, filed a suit
challenging the failure of the Navy to complete the Environmental Impact Statement (EIS) prior to conducting tests with a potential for harm. The essential argument in the suit is that the Navy
reversed the requirements of the National Environmental Policy Act by conducting such testing prior to completion of the EIS. Over the next thirty days, three more suits were filed.

THE LITIGATION

All the cases sought relief beyond the emergency order (TRO), such as preliminary injunctions and permanent injunctions. The rulings on the TROapplications, in most cases, did not
address those questions. The status of the cases is as follows: 

Suit 1: On February 23, four environmental organizations filed suit seeking to enjoin any further testing until the EIS is completed. After denying the TRO, Judge Gillmor also denied the preliminary injunction. An appeal of that denial is now pending before the Ninth Circuit Court of Appeals.

Suit 2: On March 10, Na Koa O Pu'u Kohola Heiau, Warriors of the Temple on the Mound of the Whale, filed a suit challenging the testing as interfering with their spiritual practices, which hold the whale to be sacred and an integral part of their sacred practices. Hank Fergerstrom, a member of NaKoa, filed the suit pro se and proceeded to represent himself with advice and assistance from attorneys in the other cases. Judge Alan Kay denied the TRO. As of that date, there had been no compilation of the evidence of adverse effects from the testing. There have been no further proceedings on the preliminary or permanent injunctions.

Suit 3: On March 18, Hawaii County Green Party, represented by Lanny Sinkin in Hilo, filed suit seeking to enjoin any further testing based on the actual evidence of adverse effects from the testing. The suit alleges nine separate violations of the mitigation requirements found in the Environmental Assessment and the Permit from NMFS. The mitigation requirements found in Section 6 of the Permit are:     "Source transmissions shall be suspended immediately if an acute behavioral response (e.g. repeated/prolonged activity (vocalizations, breaching, blowing, time on surface, etc.), potential injurious activity, abnormal number of animals present or absent in the area, abnormal mother-calf activity, or erratic swimming behavior of pinnipeds, small cetaceans, or sea turtles) by a marine mammal or sea turtle
is detected." Judge Alan Kay denied the TRO. There have been no further proceedings on the preliminary or permanent injunction.

Suit 4: Kanoa Inc. dba Body Glove Cruises, which operates a whale watching company, filed suit after not seeing any whales for five days (March18-22). The company halted their whale watch tours and claim damages of$60,000 in lost revenue. The suit, also filed by Lanny Sinkin, seeks injunctive relief to stop any further testing, compensatory damages for the lost revenue, and punitive damages based on the failure of the defendants to stop the testing in violation of the mitigation requirements.  This case presented even stronger evidence focused on four of the violations raised in the Green Party case. Judge David Ezra denied the TRO and dismissed the case based on finding an absence of jurisdiction under the National Environmental Policy Act and the Endangered Species Act. A motion to reconsider is pending.

Either reinstatement of the case by the district court judge or by the Ninth Circuit on appeal is highly likely.

Summary of arguments in Kanoa Inc. dba Body Glove Cruises v. William Jefferson Clinton and others: (1) Absence of Whales Plaintiff submitted extensive evidence from whale
watch boat captains, fishermen, and others documenting a decline in the number of whales in the test area beginning at the same time testing began (first week in March)and continuing until there
were no whales present in the area prior to the suit being filed. Kanoa Inc. dba Body Glove Cruises stated that their decision to close down was based on five continuous days without
sighting a single whale (March 18-22). Kanoa Inc. dba Body Glove Cruises alleged that the only reasonable explanation for the disappearance of the whales was the testing program. The
defendants responded: (a) presenting results of an aerial survey take on March 1 and 8 showing numerous whales off the west coast, (b)acknowledging that their own observers saw a dramatic
decline in the period beginning March 18, (c)attributing the rapid decline in the number of whales to the beginning of a seasonal migration out of the islands, (d) suggesting that El Nino might be
responsible for the whale exodus, and (e) characterizing the observations provided by plaintiff as anecdotal and lacking scientific credibility. The aerial survey covered a very extensive area from
the northernmost point of the island to the southernmost point and 25-30 nautical miles off shore. The count could, therefore, mask an effect in the more limited area where the testing was taking
place. Absent distribution, the government did not refute the observations of the whale boat captains for the March 1 through18 period. Defendants agreed that a rapid decline in the number
of whales had taken place after March 18. The defendants did not provide any data from Niihau down through Maui that would support the proposition that a seasonal migration was underway.
The only data available to the court was from the west coast of Hawaii. There was, therefore, no evidence of a seasonal migration when the Navy, the scientists, or the NMFS made their decisions
to continue testing despite the numerous reports of whales moving out of the test area. Similarly for El Nino, with data only from the west side of Hawaii, there would be no basis for concluding
that El Nino someho

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