War of the Whales (30 page)

Internet and public database searches for “Magellan II” came up empty. Reynolds asked the nuclear disarmament wonks at NRDC’s office in Washington, DC, if they’ d ever heard of it. They hadn’t. All they knew was that it must be a classified program, which meant it wouldn’t be mentioned by name in public documents or peer-reviewed journals.

Over the next six months, Reynolds kept digging for leads in dry holes. Then one day in May 1995, a plain manila envelope arrived in his office mail. No return address. Inside he found the latest issue of
Sea Technology
, an esoteric trade magazine that billed itself as the “worldwide information leader for marine business, science & engineering.” A Post-it note pasted to the table of contents read, “Thought you’ d find this interesting—John.” Reynolds knew it must be from John Hall, the former Navy dolphin trainer who’ d coached him on all things Navy during the ship shock trial and Acoustic Thermometry negotiations.

Reynolds scanned down the list of articles to “Low-Frequency, High-Power-Density Active Sonar,” written by a commercial contractor for the Navy’s experimental Low Frequency Active, or LFA, sonar program. The article provided detailed specs of the system’s powerful sound transducer and the array of passive sensors towed behind to capture the return signals. It also described thousands of hours of sea tests, named Magellan I and II, which the Navy conducted between 1992 and 1995, around the world and off the California coastline, aboard the research vessel
Cory Chouest
—which Reynolds recognized as the same ship that Admiral Pittenger had loaned to Munk for the Heard Island Feasibility Test.

Armed with a raft of new search terms, Reynolds uncovered a US General Accounting Office report that outlined the Navy’s plan—conceived by Admiral Pittenger in the mid-1980s as part of his master plan for expanding active sonar—to install LFA sonar aboard dozens of newly commissioned ships and deploy it worldwide. John Hall filled in the gaps in Reynolds’ understanding of the technical specs of the system, including his personal observations of low-frequency sound experiments he’ d witnessed while working for the Navy.

Munk was correct in his assertion that Acoustic Thermometry’s sound level didn’t compare to the intensity of the Magellan transmissions. Since decibels progress logarithmically—much like the Richter scale that measures the intensity of earthquakes—Low Frequency Active sonar’s 235 decibels created a sound pressure wave
10,000 times more powerful
than Acoustic Thermometry’s 195-decibel transmission. And its omnidirectional, low-frequency signal would carry for hundreds of miles across the ocean—
thousands
of miles if it entered the deep sound channel.

Reynolds’ subsequent outreach to acoustic experts confirmed the Navy’s interest in long-range active sonar technology, as well as its geographic range and intensity. As one of them described it to Reynolds, LFA sonar would “light up literally hundreds of thousands of square miles of ocean at a time.” What must 235 decibels feel like, Reynolds wondered, to the humpback, blue, and gray whales that lived and migrated along the California coastline? Or, for that matter, to a recreational swimmer or diver?

•  •  •

By mid-August 1995, Reynolds had completed a six-page letter of inquiry addressed to the Secretary of the Navy and the head of Fisheries. He catalogued the “significant and unknown” risks that LFA sonar posed to the whales, dolphins, and seals of the California coastline. After describing the legal implications of those risks, he asked pointedly if the Navy had complied with the Marine Mammal Protection Act, the US Endangered Species Act, and the National Environmental Policy Act—all of which this sonar system appeared to violate. If the Navy was not in compliance, Reynolds asked Fisheries to order the Navy to cease testing and deployment of LFA sonar “until all required permits have been obtained, legally adequate biological opinions have been issued, and a full Environmental Impact Statement has been prepared and certified.”

Reynolds knew less than his letter implied about the specifics of LFA sonar. But he wanted to make sure he got the attention of the Navy brass.

•  •  •

Reynolds was working in his office when he received a call from the San Diego field office of the Naval Criminal Investigative Service. They were sending an agent over to interview him—as soon as his schedule permitted.

The interview lasted only a half hour. In a courteous but quietly menacing tone, the investigator explained that Reynolds’ letter of inquiry contained classified information related to Navy projects that were critical to the national defense. Whoever had shared them with him had likely violated the Defense Secrets Act. The investigator acknowledged that Reynolds wasn’t bound by an oath to protect state secrets, but he could surely understand the Navy’s interest in learning how he’ d come into possession of classified information.

Reynolds had no intention of identifying Walter Munk as his original source, though it remained a puzzle to Reynolds as to why Munk, who’ d worked on classified Navy programs his whole career, would disclose the existence of Magellan to an environmental attorney.
^*
Reynolds simply told the investigator that the letter was the end product of a lengthy investigation during which he’ d spoken to a lot of people. As to the source of the technical specs, he handed the investigator a copy of
Sea Technology
, which, he noted, was available at several branches of the Los Angeles Public Library.

•  •  •

Three weeks after he sent his letter, Reynolds got a call from Navy General Counsel Steve Honigman, inviting him to the Pentagon for a personal briefing on Magellan II. Honigman was the same general counsel who had stepped in to negotiate a settlement to the ship shock injunction 18 months earlier. He wanted to avoid a repeat of that debacle and preferred to negotiate with Reynolds across a Pentagon conference table rather than place the fate of LFA sonar in the hands of a civilian judge.

After so many months of searching for details about LFA sonar, Reynolds was eager to be briefed inside the citadel. He invited Peter Tyack, a bioacoustician from Woods Hole who’ d been a friendly advisor during the Acoustic Thermometry negotiations, to serve as his wingman and marine mammal expert.

When they arrived at the Pentagon, Reynolds and Tyack were seated on one side of a long conference table. On the other side was a battalion of Navy and Fisheries personnel, including uniformed brass, lawyers, and scientists. Leading the marine biology side of the Navy’s briefing was Chris Clark, who had flown in overnight from a SOSUS listening station in the Pacific Northwest where he’ d been conducting research. (Clark was one of only two civilian scientists afforded access by the Navy to SOSUS stations for whale research.) Like Clark, Whitehead, and Weilgart, Tyack had come of age as a researcher on Roger Payne’s humpback whale expeditions in Argentina and Hawaii. Tyack and Clark had gone on to become rival bioacousticians at competing research centers. Now they found themselves facing each other across a table in an arena that was more political than scientific.

Alongside Clark and Honigman sat a cast of characters who were familiar to Reynolds from the ship shock case, including Bob Gisiner from ONR, Roger Gentry from Fisheries, and Frank Stone from Environmental Readiness. They were flanked by a dozen naval officers of varying rank, including six admirals in blue dress uniforms, their jacket lapels heavy with medals.

Reynolds was accustomed to dealing with corporate CEOs, powerful politicians, and Hollywood celebrities. But it was hard not to feel a bit shabby and underdressed in the presence of the admiralty. The admirals’ demeanor was courteous; their erect, almost royal bearing, imposing. They spoke very little during the meeting. They didn’t have to. Their presence sent the clear message that when it came to safeguarding the country’s national security, they were in charge. The scientists and lawyers were mere functionaries.

General Counsel Honigman explained that the Magellan II exercises off the California coast were the latest in a series of 22 sea tests of LFA sonar that ONR had conducted around the world since the late 1980s. Like the program’s namesake, Portuguese explorer Ferdinand Magellan, the
Cory Chouest
had circumnavigated the globe to test LFA sonar in every ocean environment of tactical significance to the US Navy’s antisubmarine warfare effort. Honigman contended that since each of the internal Environmental Assessments of the sea tests had arrived at a Finding of No Significant Impact, the Navy hadn’t been required to apply for permits from Fisheries. Reynolds was skeptical that the fig leaf of internal assessments would stand up to a legal challenge. But rather than contradict the Navy’s general counsel in the presence of the admiralty, he decided to hold his peace.

Over the next several months, Reynolds and Honigman continued to talk and to negotiate. In order to forestall an NRDC lawsuit over LFA sonar, Honigman agreed to have ONR conduct a program-wide Environmental Impact Statement, rather than a perfunctory Environmental Assessment, for its LFA permit application to Fisheries. The Navy had never before undertaken this much more time-consuming, transparent, and rigorous level of risk–assessment for a sound experiment in the ocean.

Reynolds counted it a major victory when, as part of its Environmental Impact Statement, ONR agreed in 1997 to sponsor a three-phase scientific research program to study the impact of low-frequency sound on whales off the coasts of California and Hawaii.
¹
Previously, there had been very little research on the subject, and much speculation. During the Acoustic Thermometry debate, many marine mammal researchers, including Clark and Tyack, had expressed concerns that low-frequency sound signals could interfere with the hearing-based behaviors that were critical to whales’ survival, including migration, navigation, communication, hunting, and mating. LFA sonar transmissions might cause whales to abandon their feeding grounds, alter their migration patterns, or cease vocalizing. If their auditory environment was swamped by ambient noise, whales could have trouble locating their prey, their predators, or their mates.

As soon as Reynolds felt he had gained some ground, the Navy seized it back. Bob Gisiner, who was in charge of ONR’s research program for its Environmental Impact Statement, appointed Chris Clark as his principal investigator. Gisiner’s nomination of Peter Tyack as co–principal investigator caught Reynolds off guard. When Tyack subsequently decided to accept the position, it was a setback for Reynolds. Not only had he lost his lead scientific advisor but also an expert witness if he decided to challenge Low Frequency Active sonar in court.
²

•  •  •

The Navy’s hope of moving beyond the chant of “A deaf whale is a dead whale” ran aground before its research program even began. In November 1995, at the very beginning of the first phase of Acoustic Thermometry that Munk had agreed to devote to monitoring the impact of low-frequency sound on marine mammals, three dead humpback whales washed ashore on the California coastline at Half Moon Bay. One of the whales was buried quickly, and the other two drifted back out to sea, so no cause of death was ever determined. When the media reported the whale deaths—and when Scripps soon resumed the testing—an already aroused public turned its outrage on the Navy’s proposed scientific research program. The most vocal dissidents denounced the research, which would use the
Cory Chouest
to test the behavioral effect of low-frequency sound on gray, blue, fin, and humpback whales, as irresponsible and dangerous.

The confrontation between the public and the Navy came to a head in Hawaii, where activists organized to halt the Navy’s offshore sound tests. A coalition of animal welfare and environmental groups went to court to prevent the experiments during the local humpback breeding and calving season. They urged NRDC to join their lawsuit.

Reynolds was reluctant to sue to prevent a research program he felt might yield important missing information about the impact of low-frequency sound. More to the point, he didn’t believe there were strong-enough legal arguments to win an injunction. As a result-oriented litigator, Reynolds never undertook a lawsuit merely to generate publicity. He was determined to build the strongest possible science-based case he could marshal before going to court against Low Frequency Active sonar. If not suing to block the Navy’s scientific research program meant that he had to take flack from hard-core activists on his left flank, Reynolds accepted it as a small price to pay for moving Navy research out of the Cold War shadows and into the daylight of the Fisheries permitting process.

As Reynolds had predicted, a district judge ruled against the Hawaiian lawsuit. That’s when the nonlawyers took up the fight. Ben White of the Animal Welfare Institute called on the public “to join me in harm’s way by forming a human wall of divers between the Navy and the whales.” White proclaimed, “The time has come to literally put our bodies on the line to stop this unprecedented sonic attack on humpback whales. If the United States Navy insists on going forward,” he said, “they may well kill their own citizens as well as whales.”

As a safety precaution, Clark’s and Tyack’s research protocol required that the LFA sound signal be shut down whenever swimmers were sighted in the water within a mile of the
Cory Chouest
. Back in 1993, during Magellan I sea tests in the Mediterranean, the French government complained to the US Navy that LFA sonar had disturbed recreational divers 220 miles away and might be implicated in the death of another diver. Subsequent diver studies by the US Navy found that exposure to LFA transmissions above 130 decibels induced vibration in the lungs, abdomen, head, and arms. One diver exposed to 150 decibels said he “felt like being between two catapults on an aircraft carrier” and that it was “much greater in intensity” than any of his previous exposures to active sonar.
³

Ben White failed to recruit a “human wall of divers.” But he did find a few stalwarts to heckle the
Cory Chouest
from small boats and dive into the water with him when it started transmitting sonar. The Navy had to postpone the tests and reduce the phase-three exercises from 21 days to 10. The shortened test produced very little data and no apparent deaths, either cetacean or human. Reynolds appreciated that Ben White’s style of gonzo activism energized public opposition. And by staking out an abolitionist position, activists like White motivated the Navy to negotiate with mainstream legal groups such as NRDC.