Who got it wrong? Try the AP, ABC, LA Times, New York Times, AFP, Wired, The Wall Street Journal, Reuters, CNN, MSNBC, and Foxnews. Most of those news services didn't even get the decision right, and honestly I doubt any of them care.
The Supreme Court decision today was 6-3, not 5-4 as most of those reports claim. Justices Alito, Scalia, Thomas and Kennedy joined an opinion written by Chief Justice Roberts. Justice Breyer filed an opinion concurring in part and dissenting in part, in which Stevens joined as to the concurrence. Ginsburg and Souter dissented outright. You can read the decision yourself here (PDF).
How did the media get it wrong? Well, mostly because nobody but the Navy and a few environmental groups actually cares about this stuff, and the media was ready and willing to immediately hear what the National Resource Defense Council was saying and buy into their dishonest characterization immediately. This was not a case of Navy vs the Whale, this was a case where the Navy wanted the application of science, and the environmental groups wanted to apply restrictions absent the application of science.
Despite what you may have heard, the Navy will still take great care in preventing harm to ocean mammals. Here are some things you probably don't know.
The research that discovers the deep dive patterns of beaked whales was funded, and discovered by the US Navy. The Navy didn't know, the environmentalists didn't know, nobody knew just 4 years ago why or if beaked whales were being damaged by sonar. The Navy funded a study, which is not uncommon since the US Navy funds more research on oceanic mammals than the rest of the world combined, and found that beaked whales could hold their breath for up to an hour, usually around 45 minues, and would dive very deep where no one was looking. Because they would only surface about 30 times a day, no one knew how many of beaked whales there were.
Upon discovery of the beaked whale population, the Navy found that high intensity mid-frequency sonar could effect beaked whales that were hundreds of feet underwater. The whales would surface rapidly as a result of the sound, and this was contributing to their deaths, often resulting in the whales being washed up on shore. The Navy took action implimenting the famous 29 rules to protect marine mammals, rules that will still exist after this court ruling.
All of the ranges determined in the 29 rules were determined by research funded by the Navy. Is the research tainted? Nope, the Navy funded these groups to conduct the research, to insure independence. The National Resource Defense Council blew smoke up the ass of the mainstream media today, didn't mention any of that, and nobody in the media cared to fact check.
What are the 29 measures? Well, you can't find them online anywhere, trust me I've looked. Then I asked for them, and it turns out very few had ever asked for them before. Clearly, the Navy has taken the issue seriously, because this is how it is even after the decision.
Mid-Frequency Active Sonar Mitigation Measures during Major Training Exercises or within Established DoD Maritime Ranges and Established Operating AreasFact is, the Navy is a good steward of the environment, the National Resources Defense Council was never acting in good faith, and the media let them slide with their nonsense about how the Navy will now run around killing mammals and destroying the environment.
I. General Maritime Protective Measures: Personnel Training:
1. All lookouts onboard platforms involved in ASW training events will review the NMFS approved Marine Species Awareness Training (MSAT) material prior to use of mid-frequency active sonar (MFA).
2. All Commanding Officers, Executive Officers, and officers standing watch on the bridge will have reviewed the MSAT material prior to a training event employing the use of MFA.
3. Navy lookouts will undertake extensive training in order to qualify as a watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 12968-B).
4. Lookout training will include on-the-job instruction under the supervision of a qualified, experienced watch stander. Following successful completion of this supervised training period, lookouts will complete the Personal Qualification Standard program, certifying that they have demonstrated the necessary skills (such as detection and reporting of partially submerged objects). This does not preclude personnel being trained as lookouts fiom being counted as those listed in previous measures so long as supervisors monitor their progress and performance.
5. Lookouts will be trained in the most effective means to ensure quick and effective communication within the command stnrcture in order to facilitate implementation of protective measures if marine species are spotted.
II. General Maritime Protective Measures: Lookout and Watchstander Responsibilities:
6. On the bridge of surface ships, there will always be at least three people on watch whose duties include observing the water surface around the vessel.
7. In addition to the three personnel on watch noted previously, all surface ships participating in ASW exercises will, have at all times during the exercise at least two additional personnel on watch as lookouts.
8. Personnel on lookout and officers on watch on the bridge will have at least one set of binoculars available for each person to aid in the detection of marine mammals.
9. On surface vessels equipped with MFA, pedestal-mounted "Big Eye" (20x1 10) binoculars will be present and in good working order to assist in the detection of marine mammals in the vicinity of the vessel.
10. Personnel on lookout will employ visual search procedures employing a scanning methodology in accordance with the Lookout Training Handbook (NAVEDTRA 12968-B).
11. After sunset and prior to sunrise, lookouts will employ Night Lookout Techniques in accordance with the Lookout Training Handbook.
12. Personnel on lookout will be responsible for reporting all objects of anomalies sighted in the water (regardless of the distance from the vessel) to the Officer of the Deck, since any object or disturbance (e.g. trash, periscope, surface disturbance, discoloration) in the water may be indicative of a threat to the vessel and its crew or indicative of a marine species that may need to be avoided as warrented.
III. Operating Procedures
13. A Letter of Instruction, Mitigation Measures Message, or Environmental Annex to the Operational Order will be issued prior to the exercise to disseminate further the personel training requirement and general marine mammal protective measures.
14. Commanding Officers will make use of marine species detection cues and information to limit interaction with marine species to the maximum extent possible consistent with safety of the ship.
15. All personnel engaged in passive acoustic sonar operation (including aircraft, surface ships, or submarines) will monitor for marine mammel vocalizations and report the detection of any marine mammal to the appropriate watch station for dissemination and appropriate action.
16. During MFA operations, personnel will utilize all available sensor and optical systems (such as Night Vision Goggles) to aid in the detection of marine mammals.
17. Navy aircraft participating in exercises at sea will conduct and maintain, when operationally feasible and safe, surveillance for marine species of concern as long as it does not violate safety constraints or interfere with the accomplishment of primary operational duties.
18. Aircraft with deployed sonobouys will use only the passive capability of sonobouys when marine mammals are detected within 200 yards of the sonobouy.
19. Marine mammal detections will be immediately reported to the assigned Aircraft Control Unit for further dissemination to ships in teh vicinity of the marine species as appropriate when it is reasonable to conclude that the course of the ship will likely result in a closing of the distance to the detected marine mammal.
20. Safety Zones - When marine mammals are detected by any means (aircraft, shipboard lookout, or acoustically) within 1,000 yards of the sonar dome (the bow), the ship or submarine will limit active transmission levels to at least 6 dB below normal operating levels.
(i) Ships and submarines will continue to limit maximum transmission levels by this 6 dB factor until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection.
(ii) Should a marine mammal be detected within or closing to inside 500 yards of the sonar dome, active sonar transmissions will be limited to at least 10 dB below the equipment's normal operating level. Ships and submarines will continue to limit the maximum ping levels by this 10 dB factor until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection.
(iii) Should the marine mammal be detected within or closing to inside 200 yards of the sonar dome, active sonar transmissions will cease. Sonar will not resume until the animal has been seen to leave the area, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yards beyond the location of the last detection.
(iv) Special conditions applicable for dolphins and porpoises only: If, after conducting an initial maneuver to avoid close quarters with dolphins or porpoises, the Officer of the Deck concludes that dolphins or porpoises are deliberately closing to ride the vessel's bow wave, no further mitigation actions are necessary while the dolphins or porpoises continue to exhibit bow wave riding behavior.
(v) If the need for power-down should arise as detailed in "Safety Zones" above, the ship or submarine shall follow the requirements as though they were operating at 235 dB - the normal operating level (i.e., the first power-down will be to 229 dB, regardless of at what level above 235 sonar was being operated).
21. Prior to start-up or restart of active sonar, operators will check that the Safety Zone radius around the sound source is clear of marine mammals.
22. Sonar levels (generally) - The ship or submarine will operate sonar at the lowest practicable level, not to exceed 235 dB, except as required to meet tactical training objectives.
23. Helicopters shall observelswey the vicinity of an ASW exercise for 10 minutes before the first deployment of active (dipping) sonar in the water.
24. Helicopters shall not dip their sonar within 200 yards of a marine mammal and shall cease pinging if a marine mammal closes within 200 yards after pinging has begun.
25. Submarine sonar operators will review detection indicators of close-aboard marine mammals prior to the commencement of ASW operations involving active mid-fiequency sonar.
26. Increased vigilance during major ASW training exercises with tactical active sonar when critical conditions are present:
Based on lessons learned from strandings in the Bahamas (2000), the Madeiras(2000), the Canaries (2002) and Spain (2006), beached whales are of particular concern since they have been associated with MFA operations. Navy should avoid planning major ASW training exercises with MFA in areas where they will encounter conditions that, in their aggregate, may contribute to a marine mammal stranding event.
The conditions to be considered during exercise planning include:
If the major exercise must occur in an area where the above conditions exist in their aggregate, these conditions must be fully analyzed in environmental planning documentation. Navy will increase vigilance by undertaking the following additional protective measure:
- Areas of at least 1,000 m depth near a shoreline where there is a rapid change in bathmetry on the order of 1,000-6,000 meters occurring across a relatively short horizontal distance (e.g., 5 nm).
- Cases for which multivle shi~osr submarines [2 3)-operating MFA in the same area over extended periods of time [> 6 hours) in close proximity (I 10 nm apart).
- An area surrounded by land masses, smarated bv less than 35 nm and at least 10 nm in length or an embayment, wherein operations involving multiple ships/subs (> or = 3) employing MFA near land may produce sound directed toward the channel or embayment that may cut off the lines of egress for marine mammals.
- Although not as dominant a condition as bathyrnetric features, the historical presence of a simificant surface duct (i.e., a mixed layer of constant water temperature extending fiom the sea surface to 100 or more feet).
A dedicated aircraft (Navy asset or contracted aircraft) will undertake reconnaissance of the embayment or channel ahead of the exercise participants to detect marine mammals that may be in the area exposed to active sonar. Where practical, advance survey should occur within about two hours prior to MFA use, and periodic surveillance should continue for the duration of the exercise. Any unusual conditions (e.g., presence of sensitive species, groups of species milling out of habitat, any stranded animals) shall be reported to the Officer in Tactical Command (OTC), who should give consideration to delaying, suspending or altering the exercise.
All Safety Zone requirements described in Measure 20 apply.
The post-exercise report must include specific reference to any event conducted in areas where the above conditions exist, with exact location and timelduration of the event, and noting results of surveys conducted.
IV. Coordination and Reporting
27. Navy will coordinate with the local NMFS Stranding Coordinator regarding any unusual marine mammal behavior and any stranding, beached liveldead, or floating marine mammals that may occur at any time during or within 24 hours after completion of mid-frequency active sonar use associated with ASW training activities.
28. Navy will submit a report to the Office of Protected Resources, NMFS, within 120 days of the completion of a Major Exercise. This report must contain a discussion of the nature of the effects, if observed, based on both modeled results of real-time events and sightings of marine mammals.
29. If a stranding occurs during an ASW exercise, NMFS and Navy will coordinate to determine if MFA should be temporarily discontinued while the facts surrounding the stranding are collected.
The heart of the case had nothing to do with whether the Navy "could use sonar" rather was specifically about "when and how it could use sonar." The matter in dispute was specific in regards to what ranges certain actions should be taken to mitigate damage to marine mammals. The best oceanic scientists in the country determined the ranges used in the Navy measures, judges came up distances during appeals absent any applied scientific research. The winner in the Supreme Court may have been the Navy, but ultimately the reason the decision was 6-3, particularly given how little the judges appeared to look at the science in the decision, was because the Navy had a scientific case and the National Research Defense Council and the 9th Circuit didn't.
It is really ignorant that so much science media ignores this aspect of the case, but it does show how little science is actually applied in the media these days once an issue becomes political.