A federal judge in Honolulu says the National Marine Fisheries Service violated federal law in issuing a permit to the U.S. Navy to conduct sonar testing, underwater detonations and other activities over millions of square miles of ocean between Hawaii and the West Coast.

U.S. District Court Judge Susan Oki Mollway sided with the Conservation Council for Hawaii, the Natural Resources Defense Council and a number of other environmental organizations in issuing her ruling Tuesday afternoon.

The decision does not stop Navy exercises authorized under a federal permit granted by the NMFS in December 2013. But it does set the stage for the conservation organizations to force the Navy to put in place mitigation, such as restricted areas or stopping testing during times that may be too dangerous for marine mammals.

humpback whale

A humpback whale breaches.


From the beginning of the 66-page ruling, Mollway is unflinching in her smack down of the NMFS for the way it handled the issuance of the permit, including conclusions in the final environmental impact statement that the judge found far out of line with reality. She said NMFS ignored scientific evidence about the impact of sonar and other disruptive activities on numerous species, including whales and dolphins. At one point she calls the FEIS’ finding that there would be no jeopardy to turtles “patently absurd.”

“The government actions that are challenged in this case permit the Navy to conduct training and testing exercises even if they end up harming a stunning number of marine mammals, some of which are endangered or threatened,” Mollway writes in her introductory section. “Searching the administrative record’s reams of pages for some explanation as to why the Navy’s activities were authorized by the National Marine Fisheries Service, this court feels like the sailor in Samuel Taylor Coleridge’s ‘The Rime of the Ancient Mariner’ who, trapped for days on a ship becalmed in the middle of the ocean, laments, ‘Water, water every where, Nor any drop to drink.'”

The Navy has tested sonar and explosives in the Pacific for decades. But the five-year program that began in late 2013 was expected, by the Navy’s own estimates, to result in the death or injury to an even greater number of marine mammals.

Still, NMFS determined the activity would have “negligible impact,” a conclusion with which Mollway strongly disagreed.

“No one is disputing the importance of military readiness, but recognition of that importance does not permit the parties or this court to ignore the (Marine Mammal Protection Act), ” she said, adding that the Navy can’t “skirt the MMPA purely to avoid having its training and testing activities interrupted.”

David Henkin, an attorney with Earthjustice in Honolulu who represented the Conservation Council and other groups, said Tuesday the judge recognized the Navy and NMFS’s “untenable” position that an area of the Pacific Ocean larger than all 50 states needed to be available at all times if the U.S. wanted to be prepared for military action.

“Certainly, this is a very very strong victory for marine mammals,” he said, noting that the judge gave a “clear indication that they need to go back to drawing board and do it again.”

Henkin said he expected the environmental groups to be back in court soon for the next phase of the case, which will be to argue for restrictions and conditions that will protect marine life as best as they can.

“No one is arguing that they can’t do training and testing that they think is necessary to protect the country,” he said. “We’re saying they can do training and testing and still protect marine mammals. It just may not be as convenient” as the Navy wants it to be.

Officials with the NMFS could not be reached for comment late Tuesday.

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