A daily compilation of significant news articles and comment
November 13, 2008
3. Watersheds –
Supreme Court on sonar: Navy trumps whales
San Francisco Chronicle
Ruling unlikely to quell sonar storm
Los Cerritos Wetlands plan is complex
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Supreme Court on sonar: Navy trumps whales
San Francisco Chronicle – 11/13/08
By Bob Egelko, staff writer
(11-12) 19:00 PST -- Threats to national security are more important than possible harm to whales and dolphins, the Supreme Court ruled Wednesday in lightening restrictions on the Navy's use of sonar in anti-submarine training off Southern California despite its potential effects on undersea creatures.
The ruling, the first of the court's 2008-09 term, accepted the Navy's arguments that the limitations would hinder vital exercises in the use of sonar to detect enemy submarines. The restrictions, imposed by lower courts, would have required the Navy to reduce or halt underwater sonar pulses when marine mammals might be nearby.
"Forcing the Navy to deploy an inadequately trained anti-submarine force jeopardizes the safety of the fleet," Chief Justice John Roberts wrote in the majority opinion. The resulting damage to the Navy and the public interest, he said, outweighs the injury that environmental groups that challenged the use of sonar might suffer from "harm to an unknown number of marine mammals that they study and observe."
The ruling - endorsed by six of the nine justices, and in part by a seventh - overturned decisions by a federal judge in
The court kept its ruling relatively narrow, however, and did not address the legality of an order by President Bush in January seeking to remove all legal restrictions on sonar by exempting the Navy from environmental laws. The judge in
The case was also limited by the Navy's decision to challenge only two of the six restrictions on sonar use that the lower courts imposed. One unchallenged restriction, which remains in effect, bans the Navy from using sonar within 12 miles of the coast.
"It's gratifying that the court did not accept the Navy's expansive claims of executive power," said Richard Kendall, an attorney who represented the Natural Resources Defense Council and other environmental groups in seeking to maintain the restrictions.
Joel Reynolds, a lawyer with the same organization, said the ruling would have little effect on the Navy's one remaining anti-submarine exercise off
After 10 years of litigation, he said, "we have seen significant progress."
Navy officials declared victory.
"This case was vital to our Navy and our nation's security," said Navy Secretary Donald Winter. "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."
The Navy has used sonar for 40 years in anti-submarine training off the
The Navy says its voluntary safeguards protect marine mammals. Those safeguards include the posting of lookouts and requirements to reduce sonar when vulnerable creatures are nearby.
But U.S. District Judge Florence-Marie Cooper of
Cooper's injunction was modified by the appeals court to allow commanders to reduce buffer zones at crucial times in training. The injunction has been in effect since March, affecting several exercises in a series that began in January 2007.
The Supreme Court said Wednesday that Cooper and the appeals court had given too little weight to the Navy's concerns.
Roberts' opinion quoted top Navy officials as saying sonar training under realistic conditions would be hindered by the two restrictions they challenged: a requirement that sonar be shut off whenever a marine mammal is spotted within 2,200 yards, and a requirement to reduce sonic pulses by 75 percent during conditions in which underwater sound travels farther than usual.
Judges must defer to those expert assessments, the chief justice said, especially because the Navy has conducted sonar training for four decades "with no documented episode of harm to a marine mammal."
Dissenting Justice Ruth Bader Ginsburg, joined by Justice David Souter, said Cooper had properly used her authority under the environmental law after finding that unrestricted sonar use could harm thousands of creatures. Instead of conducting an environmental study as the law required, or asking Congress to change the law, Ginsburg said, the Navy undermined the law with a "self-serving resort to an office in the White House" for an exemption.
Ruling on whales and sonar
How the Supreme Court voted Wednesday in a ruling loosening restrictions on the Navy's use of sonar in anti-submarine training off the
-- Majority: Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
-- Concurrence: Justice John Paul Stevens.
-- Partial dissent: Justice Stephen Breyer. He agreed with the majority that national security concerns outweigh possible harm to whales and dolphins from sonar use, but said buffer zones imposed by lower courts, with exceptions for critical points in the training exercises, should remain in place while the Navy completes an environmental study.
-- Dissent: Justices Ruth Bader Ginsburg and David Souter, who said the restrictions were validly based on evidence of potential harm to thousands of marine mammals.
The full opinions in the case, Winter vs. Natural Resources Defense Council, 07-1239, can be read at links.sfgate.com/ZFJA. #
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/13/BALA1436Q5.DTL
Ruling unlikely to quell sonar storm
By David G. Savage and Kenneth R. Weiss
Reporting from Los Angeles and Washington -- Despite the Supreme Court's ruling Wednesday that the nation's security outweighs the need to protect marine mammals from high-powered sonar during Navy training exercises, environmentalists said the fight was far from over.
The court immediately lifted limits on the Navy exercises now being held 12 miles off the
Another set of Navy exercises is scheduled for February.
"We don't know what the Supreme Court decision means for the next go-round. We will have a new commander in chief. It's a new game," said Mark Delaplaine, an analyst with the California Coastal Commission.
Lawrence J. Korb, a former Defense Department official who has been an advisor to the Obama campaign, said, "This says the Navy can do this. It doesn't say they should do it. The new people could come in and say, 'OK. Let's find a way to do this differently.' "
Saying the court should defer to the military, Chief Justice John G. Roberts Jr. wrote that the Navy needs to train its crews to detect modern, silent submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby.
"The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs" the concerns voiced by environmentalists, he said, speaking for a five-justice majority. This "does not strike us as a close question," he added.
Environmentalists contend that the sonar has a possible deafening effect on the whales. Roberts questioned whether whales have indeed been harmed by sonar. He said the Navy had been operating off the
The Natural Resources Defense Council and other environmentalist groups strongly disagreed. They said studies conducted around the world have shown the piercing underwater sounds cause whales to flee in panic or to dive too deeply. Whales have been found beached in
Last year, the NRDC and several other groups went to court in
Citing Navy estimates, the NRDC said the use of high- intensity sonar could disturb or threaten 170,000 marine mammals, and it predicted the exercises would cause permanent injury to more than 500 whales and lead to temporary deafness in at least 8,000 whales.
U.S. District Judge Florence-Marie Cooper agreed with the environmentalists. She did not tell the Navy to halt its exercises but instead ordered it to take steps to protect the whales.
For example, the Navy was told not to use sonar within 12 miles of the coast or in areas near Santa Catalina and
After her order was upheld by the U.S. 9th Circuit Court of Appeals, the Bush administration appealed to the Supreme Court on behalf of Navy Secretary Donald C. Winter. It said the extra conditions -- such as the sonar shutdown when whales are seen nearby -- would jeopardize the training exercises.
Roberts and the court moved quickly to overturn key parts of the judge's order. In Winter vs. NRDC, he stressed the military threat posed by modern subs. They "can operate almost silently, making them extremely difficult to detect and track," he said.
"The president -- the commander in chief -- has determined that the training with active sonar is 'essential to the national security,' " he said. "We give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest," Roberts said. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed.
The four more-liberal-leaning justices were divided. Justices Ruth Bader Ginsburg and David H. Souter dissented and said the Navy should be required to complete an environmental impact statement before going ahead with its final training exercises. Justices John Paul Stevens and Stephen G. Breyer agreed with the majority that the judge's order went too far, but Breyer said it should be modified so the Navy's exercises can proceed. Stevens concurred in overturning the judge's order.
The two restrictions on sonar were immediately lifted as the Navy aircraft carrier the John C. Stennis and 11 accompanying ships continue war games off
The last set of exercises in the current series is set to begin in December.
NRDC lawyers described the ruling as narrow and said it could have been worse. The court did not, for example, exempt the Navy from conducting environmental impact studies, nor did it say the president and the Defense secretary can ignore the environmental laws by invoking the needs of the military.
In February, the next set of training exercises begins under a new set of rules laid out in a massive environmental impact statement that has already been challenged by the California Coastal Commission.
Last month, the 12 commissioners nudged the Navy to again turn off sonar any time a whale or dolphin is spotted within 1.2 miles or a reasonable distance away, among other considerations. The Navy only wants to shut down its sonar when a marine mammal is seen within 220 yards.
"This Supreme Court decision doesn't necessarily give the Navy a green light to do what it wants," said Delaplaine, who managed federal matters for the commissioners. This could end up in court again, he said, or the Navy could decide to negotiate with the commission, which has certain powers to weigh in on federal activities under federal law.#
http://www.latimes.com/news/science/environment/la-na-scotus13-2008nov13,0,7552928.story
Los Cerritos Wetlands plan is complex
By John Canalis, Staff Writer
"Our goal is to put these 175 acres in the public trust in perpetuity," City Manager Pat West said at a news conference at the Aquarium of the Pacific. "It's something we've been working on since the dawn of time."
Assistant City Manager Suzanne Frick said the exchange of land between the city and a private developer that would make the deal possible requires additional real estate appraisals and City Council approval.
"Let me make this very clear - this is a proposal," she said.
Frick said the council will learn more about the deal in a study session at Tuesday's meeting.
The city has proposed exchanging parcels elsewhere in
As proposed, that portion of the wetlands would be sold to the Los Cerritos Wetlands Authority, a public agency, for restoration, along with two adjacent parcels: a 66-acre property called the Bryant land and the 174-acre Hellman property.
The goal is to combine those three parcels for a restoration project on the level of nearby Bolsa Chica. The city would net 192
acres in exchange for about 52 acres.
"We envision this to be the absolute jewel in the crown of the wetlands," Frick said.
How Los Cerritos Wetlands Authority would come up with $25 million to purchase the parcel, and then millions more to restore the habitat, is unknown.
Belinda Faustinos of the wetlands authority said that she believed the money could be found to acquire the site, possibly from a park bond or a coastal conservancy.
Frick said one possibility - at least for partial funding for restoration of the wetlands - is for the authority to use environmental credits from the
When the port undertakes a project in the harbor, such as dredging, it can use the credits from upsetting the environment in one area to make improvements to another.
Frick said she would like to see the credits applied in
The parcels going to Los Cerritos Inc., which is headed by investors Tom Dean and Jim Berger, include a 12-acre city service yard on the Westside, about 9.5 acres of Long Beach Gas & Oil land at Spring and the
Much of that land, Frick said, could be used by businesses that generate taxes for the city.
Projects on those sites, she added, would go through the normal review processes as they are proposed.
Former City Manager Jerry Miller, who is representing Los Cerritos Inc. as a consultant, issued a statement: "This will confirm that Los Cerritos Wetlands Inc. has been in discussion with the city of Long Beach over the past several months concerning both parties' interest in seeing the Los Cerritos Wetlands property, as well as the developable portions of the property placed into the public trust so as to enable the ultimate preservation and public enjoyment of the wetlands."
Los Cerritos Wetlands Inc., according to Miller, would retain mineral rights in the wetlands area and "will continue to conduct oil operations in an economically-beneficial and environmentally sensitive manner."
"The city and LCW Inc. acknowledge that the wetlands and the oil operations can continue to co-exist, as they have for decades, and is commonly found in other wetlands areas in
Another issue that needs to be decided is where to relocate city facilities on land going to Dean and Berger, the city service yard on the Westside and the Long Beach Gas & Oil building on Spring Street.
Frick said the city is considering relocating the service yard to a parcel at
In order to make the deal work, the city would sell much of the 55 acres of property at Spring Street and
"In this economy, we're unable to cobble together the funding for this project," Frick said.
Some of that land - about 18acres - would be dedicated to open space.
Councilwoman Tonia Reyes Uranga said in a letter to the editor on page A10 in today's Press-Telegram that she had concerns that the deal would impact recreation opportunities promised to the Westside.
"It is true that all great deals come at great cost, and cost of this deal is borne by the residents who unfortunately are all too familiar with bearing the burden of this great city - the West Side of Long Beach," Uranga wrote.
In addition, the city would use proceeds from the sale to acquire a nearly 19-acre oil field in the
To offset the loss of the soccer fields proposed at the sports park, the city's Department of Parks Recreation and Marine is scouting locations to build 10 new soccer fields west of
The sports park - which was proposed for adult league play - initially offered three soccer fields. The new fields would be built primarily for children.
Council reaction
Some council members expressed initial support for the proposal.
City Councilman Patrick O'Donnell praised environmental activists for pushing for the project for so long.
"I thank those who have remained vigilant in their efforts to protect and preserve this space," he said. "It is clear that the advocacy to protect the wetlands played a role in getting everybody to the table."
City Councilwoman Gerrie Schipske, who has a task force that addresses wetlands, said, "While the City Council has yet to see the details on the proposed land deal that will result in the purchase of wetlands property, I do feel if done correctly it could be the most significant step this city has taken to preserve our environment." #
http://www.presstelegram.com/news/ci_10970099
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