WASHINGTON — The Supreme Court will settle a fight that pits Southern California dolphins against the U.S. military.
In a closely watched case involving national security and the natural environment, the court agreed to review restrictions on the Navy's use of sonar off the California coast. The Bush administration contends that the sonar rules, meant to protect marine mammals, hinder military preparedness.
"The chief of naval operations determined ... that those restrictions unacceptably risk naval training, the timely deployment of (naval) strike groups and national security," Acting Solicitor General Gregory Garre said in a legal filing.
The California Coastal Commission and environmental groups worry about sonar's potentially destructive impact in a 120,000-square-nautical-mile training area that extends from Santa Catalina Island in the north to Mexico's Guadalupe Island in the south. A federal judge agreed and imposed the strict rules that the Bush administration now is challenging.
One rule requires the Navy to shut down its sonar when a marine mammal comes within 2,200 yards of a sonar source. Another requires the Navy to reduce sonar power during certain ocean conditions. The active sonar also is banned within 12 miles off the California coast.
"The imposition of these measures is not likely to prevent effective training," the 9th U.S. Circuit Court of Appeals concluded in February, adding that "irreparable harm to marine mammals will almost certainly result should the Navy be permitted to conduct its remaining exercises without appropriate mitigation measures."
The Supreme Court's decision to take up the case, announced Monday, means that at least four justices agreed to review the lower court's decision. That's notably good news for the Bush administration.
The court, dominated by Republican appointees, often defers to the Pentagon's judgment on military matters. The court is also in the habit of overturning the 9th Circuit. The Supreme Court has reversed the 9th Circuit in seven cases and upheld it only once this year, according to statistics compiled by scotusblog.com.
"Today's decision was anticipated, and we have already begun to prepare for Supreme Court review," said Joel Reynolds, Natural Resources Defense Counsel senior attorney.
Although oral arguments won't be heard until at least next fall, the case is attracting early attention. The California Forestry Association, based in Sacramento, already has filed an amicus brief, in hopes that the court will use the case to make it harder for environmental groups to obtain preliminary injunctions.
The Navy wants to undertake multiple training exercises involving ships, submarines and aircraft. Active sonar is part of each exercise. It involves emitting a loud noise underwater. If the noise bounces back, it's evidence that a submerged submarine has been detected.
"The Navy has concluded that in certain environments, including shallow coastal waters where ambient noise levels are high, (active) sonar allows better detection of quiet submarines," the 9th U.S. Circuit Court of Appeals noted.
However, the Navy's Southern California training area is also home to at least 37 species of marine mammals, including nine that are protected under the Endangered Species Act. The species range from various dolphin types to the blue whale, Stellar sea lion and sea otter.
High sonar frequencies can rupture eardrums and cause temporary or permanent hearing loss among marine mammals, scientists have found.
"Active sonar may cause behavioral responses such as attempting to avoid the site of sound exposure, swimming erratically, sluggish behavior, tail popping and aggressive behavior," the 9th Circuit noted.
Beaked whales, in particular, appear to be discombobulated by active sonar, and a number have run aground and become stranded after exposure to high-frequency sounds.