ASSOCIATED PRESS / JANUARY 2008 A gray whale dives off the Southern California coast. The Supreme Court agreed yesterday to review a federal appeals court ruling that limited the use of sonar in naval exercises off Southern California because of the potential harm to whales.

Court to hear sonar case

Justices have decided to review a decision limiting tests close to marine mammals

Acting at the Bush administration's urging, the court agreed yesterday to review a federal appeals court ruling that limited the use of sonar, or sound waves, in naval training exercises off Southern California's coast because of the potential harm to marine mammals.

Mid-frequency sonar, which the Navy relies on to locate enemy submarines, can interfere with the sound waves whales use to navigate and communicate underwater.

There is also evidence that the extra noise has caused whales to strand themselves on shore.

The Navy argues that the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes its ability to train sailors and Marines for service in wartime in exchange for a limited environmental benefit. The Navy says it has already taken steps to protect beaked whales, dolphins and other creatures in balancing war training and environmental protections, officials said.

The Navy also has appealed to the 9th Circuit a ruling by Honolulu federal Judge David Ezra earlier this year that the Navy must follow strict guidelines when using mid-frequency sonar in Hawaiian waters.

That suit was filed by Earthjustice, representing the Ocean Mammal Institute, and demands the Navy adopt stricter measures, including avoiding sonar training where there are known high densities of whales. It requires Navy warships in Hawaii to reduce sonar power at night and other times when it is hard for lookouts to spot whales.

In the Southern California case, Navy ships must shut down their sonar when a marine mammal is sighted within 6,600 feet. In Hawaiian waters, Ezra reduced that range to 5,000 feet but also required that warships training in Hawaii have six lookouts on the bridge instead of the five mandated in California.

The Supreme Court case could settle the issue.

"If they rule in the Navy's favor, it would go a long ways to assuring the balance between environmental stewardship and national security," said Vice Adm. Samuel J. Locklear, commander of the U.S. 3rd Fleet in San Diego, which is leading the training exercises.

Locklear said the restrictions placed on the Navy by the court have shut down effective training and are "putting sailors and Marines in danger and our national security at stake."

The Natural Resources Defense Council, one of five advocacy groups that sued the Navy over the issue, contends that more needs to be done to make sure sonar is not harming marine wildlife.

"This will decide whether or not the Navy is fulfilling its security goals in a way that doesn't leave massive collateral damage," said William Rossiter, president of Cetacean Society International, a plaintiff in the case.

The Navy's own environmental assessment of using sonar during the 14 training exercises off the California coast found that it could disturb or harm an estimated 170,000 marine mammals, including possible temporary hearing loss in at least 8,000 whales. But only five whales have been stranded and 37 whales have died because of sonar since 1996, the Navy says.

An injunction by a federal judge in Los Angeles early this year created a 12-nautical-mile no-sonar zone along the coast and ordered the Navy to shut off all sonar use within 2,200 yards of a marine mammal.

That prompted President Bush to step in and sign a waiver exempting the Navy from a section of the Coastal Zone Management Act so training could continue as the government appealed the decision. Only two of the 14 training exercises still need to be completed, the Navy said.

The 9th Circuit sided with the lower court and said the Navy must abide by the injunction. However, while the litigation was under way, the appeals court gave the Navy permission to use sonar closer than the restrictions allow during critical maneuvers.