Appeals court ruling on Navy sonar sits on fragile ground

THE ISSUE A three-judge federal appeals panel has lifted a district judge's ban on the Navy's use of high-power sonar during upcoming training exercises.

THE Navy has won a temporary victory in the 9th U.S. Circuit Court of Appeals, which has lifted a district judge's ban on the use of high-power sonar during upcoming training exercises off California's coast. A three-judge panel that issued the ruling hardly reflects the Circuit Court's liberal reputation, and a larger panel may well reinstate the ban. The Navy still needs to show that it will take precautions to avoid endangering marine mammals.

In a split vote, the judges ruled that the Navy can use the sonar in 11 planned training exercises off the Southern California coast. The ban does not apply to next summer's Rim of the Pacific, or RIMPAC, exercises in Hawaiian waters, for which the Navy has prepared a draft environmental impact statement. However, U.S. District Judge Florence-Marie Cooper, who issued the ban, also blocked the Navy's use of mid-frequency active, or MFA, sonar during last year's RIMPAC exercises.

Cooper has ruled in both cases -- and the Pentagon has acknowledged -- that the Navy is not exempt from the requirements of the National Environmental Protection Act, or NEPA. Instead, national security interests were cited by last week's panel in lifting Cooper's ruling.

"The public does indeed have a very considerable interest in preserving our natural environment and especially relatively scarce whales," wrote Appeals Judge Andrew J. Kleinfeld, a nominee of former President George H.W. Bush. "But it also has an interest in national defense. ... The safety of the whales must be weighed, and so must the safety of our warriors. And of our country."

While a judicial nominee of the current President Bush signed onto the opinion, another, Judge Milan D. Smith, argued that "there is no 'national security trump card' that allows the Navy to ignore NEPA to achieve other objectives." (That's right: This panel of the notoriously liberal 9th Circuit Court was comprised of two judges named by the current President Bush and the third by his father, and they disagreed.)

District Judge Cooper had remarked that it was "clear" to her that MFA sonar testing is "critical to national security." However, she added, "What is not clear from the papers nor was it ever fully addressed in the question of the Hawaii exercises is that this is not the only place in the world where this kind of testing can go on."

The Navy would be mistaken to rely on the divided opinion of the Bush judicial trio withstanding the scrutiny of a larger, "en banc" panel of the 9th Circuit. The National Resources Defense Council has sued the Navy five times over this issue and is not likely to accept the smaller panel's ruling. Concessions need to be sought to end this confrontation.