War of the Whales (48 page)

Reynolds fully expected Fisheries and the Navy to argue that evidence from the Bahamas investigation was irrelevant to LFA sonar. As the executive summary of their interim report stated clearly: “Low Frequency Active, another Navy sonar, had no involvement in this event.” High-intensity sonar may have caused the mass stranding in the Bahamas, the report conceded, but that was a different kind of high-intensity sonar operating in “unique” waters. Reynolds had encountered this tactic of “compartmentalization” before, during his seven-year fight to keep PG&E from bringing its Diablo Canyon nuclear power plant online. Yes, there was a partial core meltdown at Three Mile Island, PG&E admitted, but that was a
Babcock & Wilcox
reactor. Our
Westinghouse
reactors are
safe
nuclear technology.

Reynolds believed that he didn’t have to prove that low-frequency sonar was as dangerous to whales as the midfrequency sonar used in the Bahamas. He simply needed to use Balcomb’s eyewitness account to amplify the judge’s doubts about the safety of the Navy’s new sonar system. What Reynolds couldn’t predict was how a judge would weigh Balcomb’s testimony against the expert scientists and highly decorated fleet commanders that the Navy would bring to court. Assuming, of course, that Balcomb was willing to testify.

•  •  •

Balcomb had no hesitation about working with NRDC on its sonar lawsuit. He wanted to help publicize the interim report’s findings, since, as Gentry predicted, there was no final report in the offing, and the Navy and Fisheries had succeeded in burying their interim report in the news graveyard of New Year’s Eve. He welcomed the chance to testify in an open courtroom, rather than at a press conference or in a closed-door agency meeting.

On a personal level, collaborating on a high-impact legal case offered Balcomb a way to reconnect with his father, who’ d spent his legal career trying water rights cases in Colorado, including a successful argument before the US Supreme Court. Balcomb hoped that his father might finally signal his approval, or at least his acknowledgment that his son’s obsessive chase after whales had finally added up to something.

By 2002, “Blue” Balcomb had retired and moved into a creekside home in Arizona. Father and son met over lunch in the dining room of a local golf course. Though now in his eighties, with bad knees and a heart condition, Blue still had a piercing gaze and an upright posture.

While sipping their soup, they shared notes on how much the Southwest had changed in the 50 years since they’ d each moved away. Over dessert, Balcomb told his father about the written declaration he’ d prepared for NRDC’s lawsuit and the oral testimony he planned to give in court. He explained the sonar case as best he could, though his legal lexicon was limited, and he struggled to answer some of his father’s questions about the relevant statutes at issue. Balcomb showed him copies of the interim report and the
Bahamas Journal
article, which Blue flipped through while he finished his fruit cup. Then he stacked the documents in a neat pile and pushed them back across the table.

“I know you’re trying to do a good thing,” Blue said, shaking his head, “but you’re on the wrong side of this fight. God and country come first.”

Balcomb wanted to ask him what God had to do with it. He wanted to remind his father that he wasn’t the only one who’ d served his country in uniform. Instead, he appealed to Blue’s respect for due process, for equal justice under the law, even for legally protected wildlife. Surely he didn’t think the Navy was above the law. No one was.

“The law isn’t the point,” Blue insisted, tapping the table for emphasis with the butt of his spoon. “Not during wartime.” If Ken really cared about justice, Blue said, he’ d get off the Navy’s back and let it do its job, which was to hunt down the bastards who’ d attacked America on its own soil. They crashed a passenger plane into the Pentagon, for chrissakes!

Balcomb started to explain about the whales that had beached in the Bahamas; about all the whales that had never been seen again after the sonar exercises. When his father just stared back at him and shook his head, Balcomb realized that he’ d come on a fool’s errand. He should have known better than to expect a former Marine and lifelong hard-ass like Blue to put his son before his conservative politics. Before God and country.

Balcomb steered the conversation back to neutral ground. He didn’t want to end this visit, perhaps their last, with an argument. They talked about Arizona’s new baseball team, the Diamondbacks, who had beaten the Yankees in the World Series the previous fall. Blue said the D-backs would have to trade for a better relief pitcher if they hoped to make the playoffs this season, and Balcomb said he was probably right. When he said he needed to be heading out, Blue thanked him for making the trip. Balcomb collected his papers, shook his father’s hand, and said good-bye.

•  •  •

Reynolds and his team canceled or cut short their summer vacations. They sprinted through July and early August, working nights and weekends to complete their complaint and accompanying motion for an injunction, including a 100-page brief and thousands of pages of supporting declarations and exhibits.

On August 8, 2002, they filed suit against Fisheries and the Navy on behalf of NRDC and its co-plaintiffs, asking the court to reject the Fisheries permit as illegal and to issue a preliminary injunction to prevent the Navy from deploying Low Frequency Active sonar. Reynolds decided to file in San Francisco, where he calculated their chances were greatest to draw a sympathetic judge.

It was still a game of chance. Of all the variables that can determine the success or failure of a lawsuit, none may be more crucial than the judge assigned to hear the case. And nothing better embodies the unpredictable outcome of litigation than “the wheel.” In a tradition dating back to colonial times most federal courts assign judges to cases by spinning a wheel—or, more precisely, turning a solid wooden box with a crank, like a bingo cage—before withdrawing a sealed envelope with the name of one of the judges on the court’s panel.

NRDC drew Magistrate Judge Elizabeth Laporte on the wheel. As soon as Reynolds heard the news, he dug into Judge Laporte’s background. She had a reputation as ideologically moderate, smart, thorough, and fair minded. He knew their case presented difficult legal issues, so he was glad to have a judge who would be focused on the law rather than on politics. Before becoming a magistrate, Laporte had been a partner in a private law firm and then ran the tobacco unit in San Francisco’s Office of the City Attorney. Reynolds felt good about her background, reasoning that she had litigation experience in matters of scientific complexity, presented through expert testimony. And perhaps it wouldn’t hurt that she was once a summer associate at Sabey’s firm, Morrison & Foerster.

Judge Laporte promptly scheduled the court hearing in San Francisco for October 18, with briefs due by the middle of September.

Then, just weeks before the hearing—not long after Reynolds and his team had submitted their opening brief—another population of beaked whales washed ashore 6,000 miles from California.

Early-rising tourists on the islands of Lanzarote and Fuerteventura emerged from their cabanas to find 14 beaked whales stranded on the shore. Throughout the day, the vacationers did their best to shield the whales from the sun and keep them hydrated with wet towels. But by sunset, all the whales had died on the beach.

Clearly visible on the horizon were dozens of NATO warships from member nations participating in joint naval exercises. The archipelago of volcanic islands off the Atlantic coast of Morocco was a frequent site for sonar trainings by NATO and Spanish navies. As in the Bahamas, the steeply sloped underwater canyon abutting the Canary Islands provided an ideal setting for antisubmarine “choke point” sweeps. Between 1985 and 1991, there had been four mass strandings of beaked whales in the Canary Islands, all in close proximity to naval exercises using antisubmarine sonar.

Researchers from the nearby Veterinary School of the University of Las Palmas collected the heads and organs from six of the whales as soon as they died. In addition to bleeding around their brains and ears, the necropsies revealed lesions in their livers, lungs, and kidneys, as well as nitrogen bubbles in their organ tissue—classic symptoms of the bends, a rapid-decompression syndrome that marine biologists had previously believed beaked whales were immune to, due to their specialized evolution for deep diving.

The
New York Times
reported the strandings and the necropsy findings of ear and brain damage “consistent with acoustic trauma.” Asked to comment, the spokesman for the US Navy contingent at the exercises said, “It would be inappropriate to speculate on the cause of the stranding.”

The findings from the Canary Islands strandings would eventually lead to strict limits on sonar exercises in the Canary Islands and Mediterranean waters. Back in California, in the run-up to the sonar hearing, Reynolds could only hope that the media coverage of the stranding reached Judge Laporte’s chambers, where she and her clerks were poring over the opposing legal briefs.

Four of the 14 beaked whales that stranded on the Canary Islands during NATO sonar training exercises, September 24, 2002.

Severed beaked-whale heads awaiting dissection at the Veterinary School of the University of Las Palmas, Canary Islands, September 2002.

25

“It Is So Ordered”

On October 17, the day before the hearing, Reynolds, Jasny, and Wetzler decamped to Morrison & Foerster’s San Francisco office, where they were joined by Andrew Sabey and his team of associates for a full-day run-through of the oral argument. As a seasoned courtroom litigator with the establishment credentials of a large corporate firm, Sabey seemed to Reynolds like the best choice to lead off. He also understood that pro bono attorneys need some tangible incentive for donating their time and their firm’s resources to a case.

After an hour of moot court rehearsal, Reynolds saw that Sabey was lost. Instead of focusing on the legal requirements of the statutes and the agencies’ failure to meet them, he began his argument with a dramatic recitation of the physical harm sonar might cause and an attack on the Navy’s science. And he wasn’t clear on the provisions of the various environmental laws around which their legal briefs had been constructed. Whatever deference Reynolds had previously shown toward his pro bono co-counsel quickly evaporated. After seven years of painstaking preparation and careful development of their most compelling legal case, no way was he going to let someone fumble it at the goal line—not when their only hope for success lay in flawless execution.

“This isn’t going to work,” Reynolds told Sabey during a break. “If we spend our limited time during the hearing arguing the science, we lose. Let the other side wander in that wilderness. We can only win if we keep the judge focused on the Navy’s and Fisheries’ failure to meet the statutory requirements for the permit.”