War of the Whales (22 page)

Ironically, it was the Nixon administration that offered Joel a path out of Riverside. During his junior year he landed a seven-month internship at the Environmental Protection Agency, which the president had established, albeit reluctantly, in 1970. While the Watergate hearings wore on during the spring and summer of 1973, the 20-year-old Reynolds cut his teeth alongside the first generation of environmental regulators, who were armed with a growing portfolio of newly enacted environmental laws. A year later, after Nixon had resigned and returned in exile to Southern California, Joel was heading east to Manhattan, and Columbia Law School.

Joel Reynolds graduating from Columbia Law School, May 1978 (with classmate Roger Morie).

Every environmental lawsuit has a ticking clock, but the 30-day run-up to the first ship shock test was the steepest learning curve Reynolds had ever faced.

The lunacy of detonating 10,000-pound bombs adjacent to a marine sanctuary seemed self-evident to Reynolds. But common sense is never enough to win a case in court. He had to present fact-based legal arguments. And to do that he had to line up co-plaintiffs, recruit expert witnesses, and learn marine mammal law, all in very short order.

Co-plaintiffs were the easiest box to check off. Reynolds wanted a large national organization and local grassroots activists to join the suit. Naomi Rose convinced the Humane Society to join NRDC as lead co-plaintiff. Save the Whales and Heal the Bay filled out the local slots.

Next came the crucial expert testimony, on which virtually every environmental lawsuit depends. Reynolds’ roster was deep in ornithologists and toxicologists, but what he knew about marine biology could fit in a petri dish. Fortunately, Save the Whales had cultivated Hal Whitehead, a respected Canadian-based cetacean expert, and his wife and research partner, Lindy Weilgart. Together they helped Reynolds recruit two expert witnesses from the Hubbs-SeaWorld Research Institute—the research arm of SeaWorld marine parks, based in San Diego. Marine parks had deep roots with the Navy, and none went deeper than SeaWorld’s. So Reynolds felt fortunate to have Brent Stewart, a pinniped researcher, and Scott Eckert, a turtle expert, join his team.

Naomi Rose introduced Reynolds to John Hall, who signed on as his dolphin expert. Hall had crossed over to the environmental camp after spending most of his career working with the Navy, SeaWorld, and the oil industry. He’ d done it all: trained Navy dolphins to clear mines; served as the chief scientist for SeaWorld during the legal and public relations battles over its wild-capture of orcas; conducted bowhead whale surveys for oil companies that wanted to drill under the Arctic ice. By 1994, he was fed up with turning cetaceans into entertainers and research subjects. He’ d decided to move to Hawaii to run deep-sea fishing charters. But on his way out the door, he couldn’t resist giving the Navy a parting shot—and the whale huggers a boost—if he could.

To add muscle and mainstream credibility to his legal team, Reynolds reached out to a partner in the Los Angeles office of a Wall Street law firm, Shearman & Sterling. Like many corporate lawyers in Los Angeles, Richard Kendall was eager to get involved in pro bono cases of personal interest. He was a corporate litigation specialist who didn’t know anything about marine mammal protection. But he was a highly successful trial attorney, with a stable of smart young associates he could lend to the fight. And he had the kind of corner office that broadcast power and success.

Reynolds boned up on the Marine Mammal Protection Act. Originally passed in 1972, it was unique among environmental protection statutes in codifying the “precautionary principle.” In drafting the law, Congress made clear that if there’s any doubt about a potential threat to marine mammals, the dispute should be resolved to the benefit of the animal. Where was the precaution, Reynolds wondered, in the Navy’s selection of such a biologically rich and sensitive marine environment for hundreds of explosives tests?

•  •  •

Two weeks before the ship shock explosions were scheduled to begin, Kendall invited Fisheries and the Navy to a settlement meeting at the law offices of Shearman & Sterling. Given the high stakes, Reynolds would have welcomed an out-of-court settlement. And if they did end up in court, he wanted the judge to know that they’ d made every effort to negotiate a settlement.

Kendall’s 32nd-floor office had a commanding view west over Century City. On a clear day, you could see all the way to the ocean. Reynolds hoped that Shearman & Sterling’s imposing glass and steel fortress would send a message to the Navy that NRDC wouldn’t be outgunned if the case went to court.

The day of the meeting, a squadron of Navy attorneys, marine mammal experts, and admirals crowded into Kendall’s office. Frank Stone was there from the Navy’s Environmental Readiness Office. Gisiner had worked on the Environmental Assessment but hadn’t traveled west to the settlement meeting. Fisheries sent representatives from its Southwest Office, which had approved the Navy’s permit.

Reynolds hoped his own marine mammal experts would engage the Navy experts in a dialogue that could lead to a safer location for the tests. But the Navy’s contingent was led by Sam Ridgway, one of the founders of the Navy’s Marine Mammal Training Program back in the early sixties. He was old school and didn’t kowtow to civilian whale huggers. An internationally recognized dolphin expert, Ridgway had edited the multivolume
Handbook of Marine Mammals
, the standard text that every science expert in the room had studied in school—and that included Balcomb’s chapter on Baird’s beaked whales, which Ridgway had invited him to contribute. Ridgway had also been John Hall’s boss back in the late sixties when they trained Navy dolphins together. Marine mammal science was still a very small world in the mid-1990s.

As the meeting progressed, it seemed clear to Reynolds that Hall was reluctant to stand up to his old mentor. Reynolds grew increasingly frustrated with the way everyone was pussyfooting around, waiting for the meeting to end. “We’re wasting time,” he said. “And we don’t have much of it left.”

He stood up, walked over to a large map of the Southern California coastline that hung on the wall, and pointed to the deep water beyond the continental shelf. “All our experts believe it would be much less risky to detonate out here, beyond the animals’ foraging areas on the shelf. Isn’t there some compromise area we can agree to?”

The Navy wouldn’t budge. The admirals insisted that they needed to move ahead with the tests on schedule, in waters near their San Diego base. Ridgway asked, skeptically, if Reynolds’ experts had any “hard data” to support their theory that deep water explosions would pose fewer risks to marine mammals. Reynolds replied that the consensus opinion of his experts was solid enough for him.

Ridgway lifted a large Sierra Club photo book off of Kendall’s coffee table, admiring its heft and colorful cover. “In
my
consensus opinion,” he said, “this is what the ship shock test will sound like to the whales, dolphins, and sea lions.” He held the book a foot above the oak coffee table and let it drop with a dull thud. “That’s about it.”

Ridgway looked over at the Navy contingent. They rose in unison from their seats. The settlement meeting was over.

•  •  •

The day after the failed settlement meeting, Reynolds filed a motion for preliminary injunction. US District Judge Stephen Wilson scheduled a half-day hearing. It lasted five days.

Initially, Judge Wilson was skeptical of NRDC’s challenge. The Navy presented a lineup of uniformed officers from the Pacific Fleet who explained how crucial these tests were to ensure the seaworthiness of its vessels and the safety of its sailors. Relocating the tests would cost millions of dollars and delay deployment of the destroyer to the Far East. But as the facts emerged about the diversity of marine life in the sanctuary and the impact of 10,000-pound bombs on the entire ecosystem, Wilson began asking the Navy and Fisheries pointed questions that weren’t addressed in their Environmental Assessments. By the end of the third day, he urged the Navy to work with Fisheries and NRDC to reach an agreement on a different location for the test.

That night, Reynolds fielded phone calls from his own experts, Stewart and Eckert, urging him to reconsider his lawsuit. Yes, they agreed that there were problems with the Navy’s plan, but this was the first time it had ever applied for a permit. Next time, they insisted, the Navy would do a better job. If Reynolds pushed the Navy to the wall, it might retreat from the permitting process altogether. Reynolds assumed his experts were feeling the heat from their ONR sponsors, but he wasn’t prepared to reverse course.

Judge Wilson eventually grew impatient with the Navy’s and Fisheries’ unwillingness to reach a settlement. On the fifth day, he announced that he was prepared to rule. During the recess, the Navy’s lawyer approached Kendall and Reynolds. “We’ll settle,” he said, “but only if we do it before the judge issues his decision.” Reynolds declined the 11th-hour offer, sensing that the tide had turned in his favor.

After the recess, Judge Wilson granted a preliminary injunction and halted the ship shock tests. He ruled that Fisheries and the Navy had “failed in its obligation to protect marine mammals, that it hadn’t prepared a full Environmental Impact Statement, and that it hadn’t investigated all reasonable alternative sites and properly mitigated the impact of detonations on marine life.”
³

The Navy immediately filed an appeal. But in the meantime they were prohibited from proceeding with the ship shock tests. That’s when the general counsel to the Secretary of the Navy, Steven Honigman, decided it was time to intervene.

Honigman had been a Navy JAG attorney and corporate lawyer before President Clinton appointed him general counsel to the Navy. Like Danzig, Honigman had been a Yale Law School classmate of the Clintons, and he was on the same page as the president about the challenge facing the armed forces following the end of the Cold War. If the Navy wanted to maintain its expensive bases and fleets of battleships and submarines, it would have to serve the public interest—and that included protecting the environment. Transparency and accountability were the new bywords, and they were here to stay. During Honigman’s tenure, the Navy had stopped dumping garbage and toxic waste at sea. Ship shock threatened to erase its improved image as a good steward of the ocean environment.

Honigman had a broader perspective than the Department of Justice and Navy JAG attorneys who’ d tried the case and now wanted to appeal the injunction. He understood that the peacetime battlefront extended beyond the oceans, to the courtroom and to the court of public opinion. Losing an appeal of the ship shock case in a higher court would undermine the veneer of invincibility that the Navy, and every fighting force, works tirelessly to cultivate. He wanted the Navy to stay out of court and start taking the Fisheries permitting process seriously. When legal challenges emerged, he would reach out to reasonable parties on the other side to find compromises the Navy could abide. At least NRDC was staffed by lawyers who spoke a language Honigman could understand.

Within a few days, Honigman had negotiated a settlement with Reynolds and Kendall. The five-year permit for 280 detonations was withdrawn. After three days of aerial surveillance for marine mammals in areas selected by the Navy and by NRDC, Fisheries opted for NRDC’s proposed deep-water location as the lowest-risk site.

On June 10, 1994, 85 miles southwest of Point Mugu, California, a Navy tugboat towed a 10,000-pound charge to within a hundred feet of the guided-missile destroyer
John Paul Jones
. The bomb detonated at a depth of 200 feet, and the
John Paul Jones
withstood the blast. But the aftershocks of NRDC’s lawsuit resounded through the fleet for more than a decade.

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Beachside Necropsy