Blog

We attended the Honolulu scoping meeting on the Navy’s planned expansion of sonar and underwater munitions testing and training activities two weeks ago. We’re still working on processing the information and our thoughts about the process. In the meantime, we thought we’d share these thoughts from Uncle Jim on Moku o Keawe about their experience in Hilo:

From Uncle Jim Albertini:

Tonight’s (8/26/10) EIS Scoping Meeting on Navy expansion plans for Hawaii and the Pacific was more hardball than the Marines similar meeting of 2 days ago. (Then again, at the Marines meeting we had retired Marine Sergeant Major, Kupuna Sam Kaleleiki, to open the path with a pule and the initial public testimony.)

The Navy EIS personnel weren’t nearly as respectful of the right to public speaking and the community being able to hear each others concerns.  Some of the Navy team were downright arrogant, insulting and contemptuous.  Initially the Navy wasn’t going to allow us to bring our portable sound system into the Hilo H.S. cafeteria to hold a citizen public hearing.  Finally with police presence brought in, the Navy yielded the last hour of the planned 4-8PM event to our citizen hearing.

Some of the Navy EIS team were blatantly rude in not listening to community speakers and carried on their own conversations.  Before the public testimony, we invited all present to join hands in a pule and asked for mutual respect, and open minds and hearts.

The Navy refused to have any of their personnel take notes to make the public comments part of the official record of scoping concerns.  Community people were very respectful of the Navy personnel as human beings, but the aloha spirit wasn’t returned by many of the Navy people present.  Too bad.

Many of the Navy people were hard set to their format. Tour the science fair stations, and  If you wanted to comment, put it in writing or type it into a computer.  We were told over and over.  This is not a public hearing. No public speaking is allowed.

From:  Andrea

Last night at the public hearing on the Draft Science Plan for Papahanaumokuakea Marine National Monument, held at the monument office in Hawaii Kai, a troubling consequence of the lack of environmental review was elucidated.

One of the Science Plan authors stated that research activities that have already been permitted are assumed to have gone through a “rigorous” review by management.  The problem?

Actually, there could be quite a few from this muddy statement.  For one, this statement suggests that research activities that have already been permitted will not be scrutinized- nor, certainly, environmentally assessed- in the future.  It sounds like grandfathering-in existing and previous permits, meaning some activities that have been permitted in the past will be continuously assumed to pass muster, despite never actually being environmentally reviewed.

Clearly, grandfathering-in research activities so that they never undergo environmental review creates informational ravines that make cumulative impact analysis impossible.  Cumulative impacts, the incremental impacts of an action when added to other past, present, and reasonably foreseeable future action, must be assessed.  The managers need to understand the big picture, especially when making seemingly small decisions like permitting.

Secondly, what is this “rigorous” review that the manager mentioned?  There has been no environmental assessment on any permits nor the entire permitting system nor the Science Plan, so it clearly was not environmental review.  If this rigorous review were undertaken via the prioritization system of the Science Plan, that, too, is problematic.

As I have blogged before, the Science Plan has two tragic flaws:  (1)  the prioritization scheme that doesn’t actually prioritize permit activities (To prioritize permit activities, it asks, pros and…pros?, leading to 97% of potential research activities to be ranked as “critical” or “high” in importance.) and (2)  the lack of environmental review.

But, the environmental assessment did not come with the Science Plan.  The managers argue that this is the draft plan, so environmental assessment is not appropriate now.  However, they also proclaim the plan to be an evolving document- not problematic necessarily.  The evolving nature of the plan is problematic, however, for lack of environmental review because, if it is meant to evolve, when would the managers consider environmental review appropriate? There could always be an argument that it is not truly finalized yet if it’s an “evolving” document.

On the other side, if the monument managers, in fact, conduct an environmental assessment for the Final Science Plan, which is the next step after last night’s public hearing, the decision on permitting prioritization will have been made.  And, environmental assessment is legally required to take place prior to decision-making.  The whole point of environmental review is for decision-makers to be informed of environmental impacts before they make final decisions.

So, either the Science Plan truly is an evolving document, in which case an environmental review is likely to be put off forever.  Or, the Science Plan will be finalized in the next step, the Final Science Plan, which frustrates the point of environmental review taking place before decisions are made.

Confusing?  Yes.  But it need not be.

KAHEA urges the monument managers to take the straightforward approach by conducting environmental review of the Science Plan, which guides the entire permitting process, prior to finalization of the plan.  KAHEA also urges environmental review of all permits- no grandfathering-in.  Each proposed permit should be looked at with a fresh eye, through the lens of cumulative impacts, which inherently change over time.

Let’s hope that public comments are indeed incorporated into the Final Science Plan, whenever that may be.  Otherwise, the one-sided prioritization system will continue to rank most activities high, leading to excessive access and impact in a fragile, irreplaceable ecosystem.

What can you do?  Speak up!

Last public hearing on the Science Plan  is in Hilo tomorrow:

Hawai‘i, July 23th, 6-8 p.m.
Mokupapapa Discovery Center,
308 Kamehameha Ave, Suite 203, Hilo, HI, 96720.

All written public comments must be received by the monument managers by or before August 10.

• U.S. Mail:
Papahanaumokuakea Marine National Monument, Attn: Science Plan Comments, 6600 Kalaniana‘ole Hwy, Suite 300, Honolulu HI, 96825

• E-mail: nwhicomments@noaa.gov.

To read the plan:

http://papahanaumokuakea.gov/research/plans/draft_natressciplan.pdf

(It takes a few minutes to download, but once you’re there, skip to page 10 for the prioritization chart.)

Female humpback whale calf will be buried at the Pacific Missile Range Facility (PMRF), perhaps appropriate–since PMRF is the place where much of the high intensity sonar activity in Hawaii is centered. The Navy 20 years ago placed sonar devices on the ocean floor off the west coast of Kauai to detect and track underwater activity.

Maybe we can count this one against the 20 serious injury or mortality ‘takes’ for seven species of marine mammals the Navy requested a few years ago. Sigh.

From the Associated Press:

Officials are conducting a necropsy on a dead humpback whale calf that washed ashore in western Kauai this week.

A veterinarian, National Oceanic and Atmospheric Administration officials and the Hawaii Pacific University Marine Mammal Response Team arrived on Kauai on Tuesday to determine how the whale died. A Kauai cultural practitioner met the group and conducted appropriate cultural practices over the remains. NOAA said the whale is 17 feet long and is female. The cultural practitioner is expected to return to conduct ceremonies for the whale, and the remains will be buried on site at the Pacific Missile Range Facility. A tour boat captain spotted the dead whale in the vicinity of Kokole Point in Kekaha at about 8:45 a.m. Monday.

From Allison Winter, E&E reporter:

The Bush administration has failed to provide safeguards to protect more than a dozen stocks of marine mammals from injury or death in commercial fishing nets, congressional investigators said in a report released yesterday. The Government Accountability Office found that the National Marine Fisheries Service has failed to meet its legal obligation to guard whales, dolphins and other marine mammals from entanglement in fishing gear. The 1994 amendments to the Marine Mammal Protection Act require that the agency establish “take reduction teams” for certain marine mammals to reduce accidental injuries or death in fishing gear. The agency failed to set up teams of experts to protect 14 of 30 different stocks of marine mammals that deserve protection, the report says. False killer whales off the Hawaiian Islands, bottlenose dolphins in the Gulf of Mexico and Steller sea lions in the eastern and western United States are among animals left without bycatch protection teams.

And for the rest of the stocks, NMFS lacked a “comprehensive strategy” to assess the effectiveness of its program and frequently missed deadlines to set up teams and create safety plans. For most stocks, the agency relies on incomplete, outdated or imprecise data on population size or mortality, GAO found. Federal fisheries officials told GAO they were aware of some of the limitations but did not have enough funding to implement plans or improve their data. For some marine mammal stocks, officials said a take-reduction team would be useless, since the threats to the marine mammals are not from fishing but from other sources, such as Navy sonar exercises. NMFS officials agreed with a recommendation from GAO that the agency develop a comprehensive strategy for assessing the effectiveness of the plans and the regulations. The report came as President George W. Bush this week declared three new national monuments in the Pacific Ocean — a move than won praise from environmental and marine conservation groups. Bush used the announcement as an opportunity to defend his environmental record — often praised for ocean conservation but widely criticized for its policies on public lands, endangered species and climate change.

“For an administration that is desperately trying to create a legacy of ocean stewardship before leaving office, it is disappointing to hear that they have dropped the ball on reducing incidental deaths of mammals due to commercial fishing,” said House Resources Chairman Nick Rahall (D-W.Va.), who requested the report. Rahall said the report would create a “solid road map for the tremendous work that lies ahead” and pledged to work with the incoming Obama administration to try to secure protections for whales and other marine species. The report recommends that Congress amend the existing law to specify that the teams are only required for marine mammals that interact with a fishery and change the law’s deadlines to make them easier for NMFS to comply. GAO also recommended that lawmakers require federal officials to report on progress in developing the teams and any limitations hindering the agency. “NMFS faces a very large, complex, and difficult task in trying to protect marine mammals from incidental mortality and serious injury during the course of commercial fishing operations,” the report states.

Monday = RIMPAC exercises end and another whale strands itself on Molokai beach. Think they’re related?

“Any statements implicating sonar or RIMPAC activities are premature and speculative,” said spokesman Mark Matsunaga.

Star-Bulletin story: http://starbulletin.com/2008/07/30/news/story09.html

“Obviously I feel that there may be a correlation because, for one thing, this type of whale stranding does occur for a variety reasons. This particular type of whale has consistently been associated with stranding related to the Navy’s sonar all around the world,” said Paul Achitoff, attorney with the Earthjustice office in Hawaii, adding, “So when one happens while the Navy is using its sonar … it’s obviously something that should raise concern among any objective person.”

(graphic from abcnews.com)

The Supreme Court has taken up the question of whether the Bush Administration can exempt the Navy from laws protecting marine mammals from sonar, and media is chiming in. Both the New York Times and Star Bulletin have come out recently in favor of upholding environmental law when it comes to Navy training exercises.

From Op-Ed in today’s New York Times:

Environmentalists have long claimed that the Navy’s use of sonar for training exercises unduly threatens whales, dolphins and other acoustically sensitive marine creatures. The Navy has adopted some procedures to mitigate the risk but has resisted stronger protections ordered by two federal courts. The Supreme Court has now agreed to address the issue.

The justices will not try to determine the extent of harm but rather the balance of power between the executive branch and the courts in resolving such issues. In an effort to sidestep the courts, the Bush administration invoked national security to exempt the Navy from strict adherence to the two federal environmental laws that underlay the court decisions. The top court will now have to decide whether the military and the White House should be granted great deference when they declare that national security trumps environmental protection or whether the courts have a role in second-guessing military judgments and claims of fact.

The case at hand was filed by the Natural Resources Defense Council and other conservation groups to rein in Navy training exercises that use sonar to search for submarines off the coast of Southern California. The Navy says that its exercises pose little threat to marine life and that the training is vital to national security.

A federal district judge and a federal appeals court in California, after careful reviews of the facts, have found that the Navy’s arguments are largely hollow. Although the Navy likes to boast that there has never been a documented case of a whale death in 40 years of training, that may be mostly because no one has looked very hard. The Navy itself estimates that the current series of drills, conducted over two years, might permanently injure hundreds of whales and significantly disrupt the behavior of some 170,000 marine mammals.

No one has questioned that sonar training is vital to national security, and the federal courts have not tried to ban the training. They have simply tried to impose tough measures to minimize damage. The Navy objected to two proposed restrictions in particular — that it shut off its sonar when marine mammals are detected within 2,200 yards and power down its sonar under sea conditions that carry sound farther than normal.

High-ranking officers said these restrictions would cripple the Navy’s ability to train and certify strike groups as ready for combat. The appeals court, mining the Navy’s own reports of previous exercises, disagreed. It said the Navy, following earlier procedures, had already been shutting down sonars with little impact on training or certification.

It seems telling that the Navy has accepted the 2,200-yard safety zone for other sonar exercises. NATO requires the same zone, and the Australian Navy mandates a shutdown if a marine mammal is detected within 4,000 yards.

The federal courts have played a valuable role in deflating exaggerated claims of national security. Let us hope that the Supreme Court backs them up.

And, from our own Honolulu Star-Bulletin:

The Navy’s application for a new permit for sonar training exercises in Hawaii waters could be the last time it will need to go through the process, depending on a ruling from the U.S. Supreme Court.

Should the court agree with the Bush administration’s assertion that it has the authority to override laws that protect the environment and marine mammals, the Navy would no longer be required to seek the permits designed to minimize harm to ocean species.

The court is not expected to focus on a continuing dispute between the Navy and environmental organizations about the level of injury sonar causes to marine mammals.

Instead, justices will decide whether the administration, with the support of the military, can set aside enforcement of well-established law. The administration argues that protective conditions put in place by federal courts jeopardize “the Navy’s ability to train sailors and marines for wartime deployment.”

The claim is belied by the fact that the Navy has been able to conduct training while mitigating harm.

The case involves naval exercises off the Southern California cast in which a federal judge restricted mid-frequency sonar use and required it to be shut down when a marine mammal is sighted within 6,000 feet. In a similar ruling in Hawaii, federal Judge David Ezra established several guidelines, putting the range at 5,000 feet. The different requirements have frustrated the Navy, but they are due to variations in coastal waters and marine mammal populations.

While the California case was proceeding through the appeals court, President Bush exempted the Navy from the Coastal Zone Management Act. At the same time, an executive branch agency, the Council on Environmental Quality, granted an exemption of the National Environmental Policy Act, claiming an emergency situation. The Defense Department has previously claimed an exception for “military readiness activity,” as allowed under the Marine Mammal Protection Act.

Through these laws, environmental groups have been successful in establishing restrictions, showing evidence that sonar soundings have injured or led to the deaths of whales. Navy studies have shown probable harm, disturbance or death to 175,000 marine mammals. The Navy also says only 37 whales have died from sonar since 1996, but that doesn’t mean that other haven’t been killed without their carcasses being found.

(Photo: 2006 dolphin stranding, Mozambique.)

The administration’s crafty argument, however, is aimed at defining the scope of executive authority, which might be a gamble because the court has not been sympathetic to Bush’s attempts to stretch presidential power.

A ruling will have implications in Hawaii, where the Navy’s permit for sonar exercises will expire in January. Until the court’s decision in its next term, the public has an opportunity to weigh in with the argument that training can be conducted effectively while reducing the risk of harm to animals in the sea.

Hawai‘i federal district Judge David A. Ezra today found that the Navy is violating federal law and enjoined it from carrying out its Undersea Warfare Exercises in Hawai’i’s waters without adhering to additional mitigation measures to protect marine mammals. The Navy is also required to take a hard look at the impacts of its high-intensity, mid-frequency active (MFA) sonar by preparing an Environmental Impact Statement.

Earthjustice, on behalf of Ocean Mammal Institute, Animal Welfare Institute, KAHEA: The Hawaiian-Environmental Alliance, the Center for Biological Diversity, and Surfrider Foundation’s Kaua’i Chapter, sued the Navy last May. Judge Ezra issued a preliminary injunction after finding the Navy was violating the National Environmental Policy Act (NEPA) and the Coastal Zone Management Act (CZMA), and was likely to cause harm if allowed to proceed without greater protections.

He noted the Navy’s harm threshold—173 decibels (dB)—contradicts the best available science, and “cast into serious doubt the Navy’s assertion that, despite over 60,000 potential exposures to MFA sonar, marine mammals will not be jeopardized.” The Court said further the Navy had failed to analyze reasonable alternatives to conducting its exercises in the manner it proposed, failed to notify and involve the public as required by law, and failed to take into account the potential for serious harm from an exceptionally controversial activity.

Learn more about the lawsuit and the impacts of high-intensity mid-frequency (MFA) sonar on Hawaii’s marine mammals.