Real Estate & Property Law

Navy Sonar Case Round-up

By Robert Thomas (inversecondemnation.com)

Yesterday's Supreme Court decision in Winter v. Natural Resources Defense Council, Inc., No. 07-1239 has generated a fair amount of media and blog coverage, both nationally and in Hawaii.  Why do we care about a case involving the Navy's use of sonar in training exercises off the California coast?  First, as we explained here, the case is philosophically interesting because of the arguments of when courts should defer to the judgment of the executive.  Second, we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), supporting the Navy's arguments.

• The majority opinion
  

• Ruling on Navy sonar won't affect isles now (Honolulu Advertiser)  (The story gets the majority-dissent breakdown wrong (Winter is 6-3, not 5-4, as the lede states)).  The story quotes only an attorney for an environmental group suing the Navy for the use of sonar in exercises in Hawaiian waters.

• The Maui News ran a story with a similar headline: Attorney sees limited effects on Hawaii case.  At least the Maui News got the Navy's input: "'Without the crippling restrictions contained in the preliminary injunction, our sailors can train realistically, and the Navy is able to certify our forces are ready for anti-submarine warfare, reducing risk to our sailors and national security while simultaneously protecting the environment,' a Navy spokesman said."

• Honolulu's ABC affiliate KITV reports: Supreme Court Rules In Favor Of Navy On Sonar Use: "'The navy has continued to refuse to acknowledge what the scientific consensus is, that its sonar is frequently damaging and sometimes kills whales,' said Paul Achitoff, with Earth Justice."  Not quite: the Navy has acknowledged that mid-frequency active sonar may cause injury to marine mammals (one of the reasons that the Navy is specifically exempted by the Marine Mammal Protection Act from incidentally harming them. The exemption allowing the Navy to ?take? marine mammals was Congress? determination that military commanders and their civilian leaders could exercise their best professional judgment about the training needs of the fleet even if it might mean ?harassing, hunting, capturing, or killing? marine mammals otherwise protected by the MMPA. Additionally, the Navy has imposed fleet-wide mitigation measures to minimize risk to marine mammals from sonar in training exercises.

• Honolulu's other daily paper, the Star-Bulletin, apparently reached a different conclusion and thinks Winter may affect the Hawaii case: Sonar ruling may affect Hawaii case.

• Supreme Court on sonar: Navy trumps whales (San Francisco Chronicle)

• Ruling unlikely to quell sonar storm (LA Times)

• Supreme Court Rules for Navy in Sonar Case (New York Times)

• The Wall St. Journal Law Blog: Navy Wins, Whales Lose at High Court

• SCOTUSblog: Court rules for Navy in sonar use

• The law bloggers at Volokh Conspiracy comment on the decision here.

Full post as published by inversecondemnation on November 13, 2008 (boomark / email).