On Nov. 12 the Supreme Court ruled for the Navy on the challenge to Navy's use of sonar for the 14 anti-submarine warfare (ASW) combat certification training exercises off the coast of Southern California (SOCAL).
In a strongly worded opinion, supported by a majority of the Justices, the Court recognized both the public interest and the Navy's interest in effective realistic training to ensure the Navy is able to track and target enemy submarines. The Supreme Court vacated the two training restrictions in the preliminary injunction that Navy told the court unacceptably restricted our Sailors' ability to conduct realistic combat training in SOCAL with mid-frequency active sonar (MFAS). The majority opinion concluded that "the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy."
"This case was vital to our Navy and nation's security, and we are pleased with the Supreme Court's decision in this matter. We can now continue to train our Sailors effectively, under realistic combat conditions, and certify our crews 'combat ready' while continuing to be good stewards of the marine environment," said Donald C. Winter, Secretary of the Navy.
This decision enables the nation to achieve a balanced, responsible approach to meeting the Navy's dual obligation for maintaining a trained and effective force and environmental stewardship.
The original injunction, handed down in August 2007 by a U.S. District Court in Los Angeles and later amended, was affirmed by the Ninth Circuit Court of Appeals in February. The Supreme Court granted the Government's Petition for Certiorari in June and heard the oral argument Oct. 8.
The decision vacated two training restrictions - the 2,200-yard shutdown zone and the mandatory power reduction when significant surface ducting conditions are encountered. The 2,200-yard shutdown zone is 11 times greater than the existing shutdown distance developed in consultation with the National Marine Fisheries Service (NMFS), the Federal Regulator, and supported by science. The 2,200 yard shutdown zone effectively imposes a 4.9-square mile shutdown zone around each U.S. Navy ship. The Court noted that the courts below had not given sufficient weight to the views of several top Navy officers, who explained the serious impact of these two measures on effective training.
The Navy implements extensive measures designed to protect marine mammals during ASW training. As the Court observed, the Navy has conducted exercises similar to those at issue in this litigation in SOCAL for 40 years, without a single marine mammal stranding linked to MFA sonar usage.
This injunction and this decision concern 14 major training exercises off Southern California. The last of these exercises will be completed this December. For the final SOCAL exercises, the Navy will continue to train while applying a number of mitigation measures set forth by a National Defense Exemption and additional requirements imposed by the President's Council on Environmental Quality (CEQ), and other mitigation measures ordered by the District Court that were not challenged by the Navy. These measures were established in cooperation with NMFS and the CEQ, and since they were instituted in January 2007, no marine mammal strandings have been linked to the United States Navy use of sonar anywhere in the world. The Navy will continue to employ successful mitigation measures.
"We are pleased with the Supreme Court's decision on this case of vital importance to our national security. We will continue to train realistically and certify the Sailors and Marines of our Navy strike groups in a manner that protects our nation's security and the precious maritime environment," said Chief of Naval Operations Adm. Gary Roughead.
The Navy expects to complete an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) for all training activities on the Southern California Range Complex early next year. Starting in January, the Navy's decision on this EIS will provide full environmental compliance for all training activities on the SOCAL range complex, including training with MFAS. The Supreme Court decision does not affect the completion of the EIS and efforts to obtain required letters of authorization and biological opinions which will set the mitigation measures to be observed in the future.
Beyond environmental compliance and marine mammal protection measures, the Navy has also invested more than $100 million in the past five years to increase scientific knowledge about the location, abundance, habitat, physiological characteristics and acoustic sensitivity of marine mammals.