The Supreme Court yesterday heard arguments in Winter v. Natural Resources Defense Council, a case revolving around Navy sonar exercises off the coast of California and their potential impact on the environment.

Justices on both sides of the normal ideological division seemed unpersuaded by the NRDC. Justice Breyer at one time asked,

I will express a little frustration. Not your fault. But why couldn’t you work this thing out? I mean, they are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions. And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who’s right in the case where the other side says the other side is totally unreasonable. And the issue at law seems to be something that is going to last for two months. So — so, why? What is so — what is the important thing here?

The argument eventually came down to deciding whether or not the Navy was required to file an Environmental Impact Statement before it could proceed with the sonar training. An Environmental Assessment had been conducted which concluded that the training was most likely harmless to marine mammals in the area. The Navy failed to file a more comprehensive EIS and Justice Souter noted that the Navy was acting “in a state of some degree of ignorance greater than would e the case if it .. had done the EIS” Justice Scalia was adamant that the only harm caused here was procedural – that no EIS had been filed – and that was insufficient to confer standing to the NRDC to file against the Navy.

The NRDC argued quite simply that the original finding by the district court was justified by evidence in the case and unless it was ‘clearly erroneous,’ it should not be overturned by this court. Justice Alito found it odd to justify a single judge’s opinion of a military exercise overturning the determination of the Military.

In the end, it looks like Justice Breyer will almost certainly side with the Chief Justice and Justices Scalia and Alito. As usual, Justice Thomas didn’t say anything but if you assume that he will side with his fellow conservatives, then the case is closed. Justice Kennedy is harder to read although he expressed some skepticism at the NRDC’s claims and to be honest- the standing argument is pretty persuasive. The NRDC also pushed the idea that beaked whales were being beached en mass by the Navy’s use of sonar and the Navy refuted that claim, but the science of the matter may be lost on both sides. The conservatives will likely claim that the experts and evidence point in their direction, the liberals will claim that it weighs in their favor.


1 Response to “Court Hears Arguments in Navy Sonar Case”

  1. 1 Capt. David Williams

    Navy sonar obviously falls thousands of years short of explaining why whales and dolphins have been mass stranding themselves since long before the start of the stone age. On the other hand, mass beachings during sonar operations are eerily similar to mass beachings throughout history. Obviously, sonar-induced strandings are linked to strandings from natural causes. The only question is how are the two sources tied together?

    Amazingly, the very key to unraveling one of nature’s oldest mysteries is the realization that the species known to consistently mass strand are the only species known to feed in close-nit family groups a few hundred meters above the most volatile earthquake zones on the planet – Mid-Ocean Ridge Systems. Shallow-focused thrusting undersea earthquakes open large cracks in the seabed and cause the seafloor to dance up and down violently like the faceplate of a gigantic sonar transducer, pushing and pulling at the water in the vertical plane and generating pressure waves that travel upward toward the surface at 1,500 meters per second.

    These hydroacoustic seismic waves are eerily similar those coming from navy sonar in all aspects except: (a) seismic pressure waves are a bit more intense, and (b) mid-range sonar operates at a higher frequency.

    Surprisingly, the intensity of the seismic pressure changes that might crisscross over a pod of diving whales does not depend so much on the magnitude of the quake; rather, the driving forces behind the fluctuating pressures are the combined effects of the depth of the earthquake focal point, the depth of the water, the depth of the whales, the SPEED (acceleration) at which the seafloor moves vertically, any focusing by either the bedrock and/or the undersea terrain, and the composition of the rocky bottom between the focus point and the epicenter.

    Not all underwater earthquakes are dangerous. If the movement in the seafloor is mostly side-to-side (horizontal to the surface), the hazard faced by a family of diving whales is not so great because liquids and gases will not transfer shearing motion. Side-to-side motion slides through the water like a boat paddle turned sideways. However, such motion in the seafloor can generated dangerous pressures if the action causes mountainous terrain to shake back and forth. The face of the mountain becomes the face of the transducer. In fact, some of the most dangerous earthquakes might be those that occur at the base of tall seamounts, a favorite feeding area for pods of whales.

    The ability of the whales to compensate for seismic waves is obvious critical. The closer the pod is to the surface when exposed, the greater the odds they will be injured. This is so because the percentage of change in the volume of air enclosed in the numerous air cavities is much greater near the surface.

    The small air sacs surrounding each cochlea is of particular concern since barotrauma in these sinuses will not only disable biosonar and echo-navigation but will also prevent the pod from diving and feeding.

    Such a seaquake-injured pod has no choice but to surface and remain there until the injury heals, which might take several weeks.

    The swim path of the non-navigating pod during the recovery period is controlled solely of the flow of oceanic surface currents. Some pods remain in the open ocean; others are carried toward land. Regardless, they are under constant pressure from oceanic sharks that trail them like a pack of wolves dog a herd of caribou picking off any stragglers that fall behind. If there is an increase in the number of beachings in a given area, the likely reason is not sonar but falling shark populations.

    Seaquake-injured pods are also subject to be driven ashore during the recovery period by fishermen in small boats, similar to the methods used by the drive-fisheries for small whales in the Faeroe Islands and in Japan. If not harvested by fishermen or taken by sharks, they stand a good chance of be carried ashore by local currents where they mass strand, usually at night due to failing night vision.

    If the SEAQUAKE SOLUTION is on target, seismic injury might be quite common, likely occurring once or twice every three or four years during a pod’s long life.

    The Deafwhale Society has evidence suggesting that navy ships with active sonar are accidently crossing the path of seaquake-injured whales on their way to the beach. We believe prior barotra-matic injury during a seaquake sets up a special sensitivity to sonar. The trauma from the seaquake causes leaks in the air sacs surrounding the inner ears and leads to the inability to determine the direction of sound underwater. If pods suffering from biosonar failure encounter a military exercise using sonar, they would not know in which direction to swim to avoid close contact. They might dart in panic to escape the loud noise only to run head first into the ship responsible.

    On the other hand, giving consideration to the fact that the species known to mass strand (especially beaked whales) have been dealing with seismically-generated changes in pressure on a daily basis for more than twenty million years leads the Deafwhale Society to conclude that these animals have surely evolved anatomical changes to enable them to deal with pressure changes from both seaquakes and navy sonar.

    But evolution ran into a catch-22 in which it had to make a compromise. As mentioned briefly above, the most dangerous depth to be during a seaquake or sonar is shallow at less than ten (10) meters.

    The difference between the volume of air in a sealed balloon at the surface and at ten meters is one hundred percent whereas the difference between the volume of air when going from 300 meters to 400 meters is only twenty percent. This means that a pressure wave encounter near the surface will cause the entrapped air inside to expand and contract up to twice normal volume whereas the same pressure wave encountered at 300 meters will cause only a twenty percent change in volume.

    There was nothing evolution could do. The better equipped the whale was to deal with the extreme pressures of a 1,000 meter dive (beaked whales), the more vulnerable they became to being caught shallow. Accepting the danger of the shallow zone was the price evolution paid to get the whales down deeper. Beaked whales are far better equipped to deal with rapid pressures changes at depth where they spend a lot of time but less able to deal with seaquake waves at 100 meters; thus, this particular species is predisposed to both seaquake and sonar injury.

    The Deafwhale Society suggest that beaked whales are more vulnerable to pressure changes at a shallow depth but are better equipped to recover from such injuries.

    We urge the US and the British Royal Navy to investigate seaquake-induced barotrauma. Until they do, we highly recommend that all naval vessels using high-powered sonar avoid operations downstream for known habitats following any suspicious earthquake activity.

    In defense of navy sonar, the Deafwhale Society strongly urges that before the public condemns defensive devices important to our national security that we must first fully understand how nature itself has caused injury in whales. Only with a complete comprehension of seaquake-induced injury will we be able to prove the danger from sonar and know what the remedy might be.

    The Deafwhale Society also believes that sonar and whales can co-exist and strongly urges Supreme Court Justices to read these web page before passing judgment on the sonar/whale issues.

    Capt. David Williams
    Deafwhale Society, Inc.
    http://www.deafwhale.com

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