War of the Whales (49 page)

Reynolds drilled Sabey repeatedly on the talking points he needed to highlight from their brief: the legal limits on “small numbers” of animals that can be harmed, “specified geographic regions” where sonar can be deployed, and “practicable mitigation” to reduce risk to marine mammals. They then ran Andrew Wetzler, NRDC’s expert on the Endangered Species Act, through similar paces, peppering him with questions about alleged violations of that federal statute. By the end of the day, Reynolds felt confident that both Sabey and Wetzler were on message.

When Balcomb arrived in San Francisco that afternoon, Reynolds explained to him why his written declarations and oral testimony were crucial to making their case. As a former Navy sonar officer with decades of experience studying beaked whales, Ken’s firsthand description of the Bahamas strandings would make a strong impression on the judge.

Balcomb’s testimony would also draw attention to the Navy’s exclusion of beaked whales from its safety studies for LFA sonar. Beaked whales were the species most clearly at risk from military sonar, including during the Greek stranding where LFA sonar
had
been deployed. If beaked whales were the most vulnerable of all whales, why had the Navy studied only LFA sonar’s impact on grays, blues, and humpbacks?

Reynolds listened to Balcomb rehearse his description of the broad distribution of beaked whales across the global range of the Navy permit. He was clear and precise, but Reynolds wanted him to have a visual presentation prop. Late in the afternoon, he and Balcomb hurried down the street to the Rand McNally store, just before closing time, and bought the largest world map it had.

That evening, Balcomb moved all the furniture into the corner of his hotel room and unfurled the map across the floor. Late into the night, he crawled around the edges of the map, hand marking every known beaked whale community in the coastal waters of every continent in the world.

The sonar hearing was held in a small federal courtroom near the Civic Center in downtown San Francisco. Animal rights groups had planned to stage a protest outside the courthouse, but Reynolds persuaded them to call it off. He didn’t want anything to distract the media or the judge from his carefully prepared legal case.

When Reynolds and his team arrived, the courtroom was already crowded with uniformed military personnel, research scientists from inside and outside the Navy, and lawyers from the Department of Justice, the Navy, and Fisheries. Though there were a handful of friendly faces from NRDC’s San Francisco office, it was hard for Reynolds not to feel outnumbered by the opposition. Apart from his co-counsel, he was accompanied only by Balcomb and Naomi Rose. He had several science experts available by speakerphone if the judge wanted to ask them questions about their written declarations. But Balcomb would be his only witness to testify in person.

As was his custom, Reynolds walked over to greet the opposing counsel. When any federal agency is sued, attorneys from the Department of Justice typically represent them in court. Reynolds introduced himself to the two women lawyers from Justice, but the Navy and Fisheries lawyers hung back in a group. Reynolds lingered to say hello to the researchers he’ d come to know well over the previous years: Gentry, Gisiner, Clark, Tyack, and others. Reynolds’ geniality usually succeeded in defusing some of the tension that builds up between legal adversaries. But the energy in this courtroom was tense.

When he approached Darlene Ketten, she took his hand and smiled up at him, almost mischievously. “I’m going to bury you,” she said in a stage whisper. Reynolds tried to laugh it off. He didn’t know whether she was being serious or flippant. But he’ d had enough encounters with Ketten over the years to know that her demeanor could shift quickly and unpredictably from charming to antagonistic, or from chilly to accusatory. He also knew that in the two years since the Bahamas stranding, she’ d often had to respond to hostile questions about the length and secrecy of her investigation. She complained to her colleagues about the time it had taken away from her other research, and that some of her funders now viewed her as “radioactive.” She felt as though she’ d been treated like a chew toy by her antagonists in the conservation community and on Capitol Hill. And she never forgave Balcomb for releasing forensic evidence to the public before she’d completed her investigation.

The judge’s law clerk strode into the courtroom bearing a large stack of briefing binders and exhibits that he deposited on the judge’s desk. Everyone rose as Judge Laporte entered carrying her own armload of document binders. When she set her stack of papers alongside the other documents, Reynolds could see that each of the binders was flagged with color-coded tabs.

Laporte was a petite, middle-aged woman with a no-nonsense haircut and glasses. She acknowledged the crowd with a nod. “Why don’t we all sit down and get started,” she said.

Reynolds had appeared before all kinds of judges over the years. Brilliant legal scholars, not-so-smart political hacks, respectful inquisitors, bullies and blowhards who liked to intimidate from the bench, and silent ciphers who kept you guessing. Laporte reminded him of the organized and buttoned-up law professors who always came to class prepared to teach, not to tell entertaining stories. As soon as the judge began her opening remarks, it was clear that she had done her homework over the past six weeks. She had an impressive command of all the briefs, as well as the statutes and regulations at issue.

At the outset, she expressed several of her concerns about the legality of the permit and explained that she wanted to use this one-day hearing to answer a list of questions she’ d compiled. Reynolds was pleased to hear her make cautionary reference to the Bahamas stranding, as well as the recent stranding in the Canary Islands, which she said she wanted to hear more about from the expert witnesses. She invited both sides to present their arguments, but asked them not to rehash their briefs, saying she’ d already studied them carefully.

Sabey led off for the plaintiffs, summarizing the points of law that he and Reynolds had agreed on. He quickly established rapport with the judge, watching her reactions to his line of reasoning, responding to her questions directly when she interrupted with a query, and then seamlessly returning to the thread of his argument. Sabey, and then Wetzler, took aim at the safeguards the permit proposed: a 12-mile coastal exclusion zone, a 180-decibel threshold for harm to marine mammals, visual surveillance for marine mammals from ships. After whittling away at the efficacy of these measures, they turned to Balcomb to topple them.

Balcomb was sitting in the front row of the gallery with his enormous map rolled into a tight cylinder, pointed skyward like a ship’s mast. He came forward to be sworn in, and then introduced himself to the judge as “someone familiar with both the sound and the whale side of this discussion.” After describing his seven years of service in Navy sound surveillance, he stated, “I do not dispute for a moment the Navy’s need for this sonar system. Nor do I dispute that training is necessary. I
do
dispute that one hundred eighty decibels is a safe level of acoustic energy for any marine mammal, certainly in the case of beaked whales. I dispute that the numbers of ‘takes’ at levels below one hundred eighty decibels are negligible and small. And I dispute that the mitigation methods and the areas authorized are adequate to protect marine mammals.”

Reynolds had seen Balcomb speak only at their joint press conference, where he’ d addressed a roomful of reporters in the glare of television lights. Balcomb was much more at ease talking one on one with Judge Laporte. He was soft-spoken but authoritative, polite but firm in his opinions. Balcomb walked the judge through the Navy’s own acoustic modeling of the Bahamas stranding, explaining how the battle group created a force field of sound that was lethal to whales at distances of hundreds, not dozens, of miles and at sound levels well below 180 decibels. Watching the judge react to Balcomb’s narration of the Bahamas stranding, Reynolds was reminded of the persuasive power of expert and compelling eyewitness testimony.

Next, Balcomb explained how Jim Mead’s historical analysis of beaked whale strandings showed that the Bahamas incident was part of a consistent pattern of mass strandings during sonar exercises—not an anomaly, as the Navy claimed. The recent Canary Islands stranding, he pointed out, was just the latest example of how deadly high-intensity sonar could be to beaked whales.

When Balcomb struggled to unfurl his oversized map to its full breadth, Wetzler and Jasny stepped forward to hold it open while he spoke. Balcomb showed the judge how beaked whales, which the Navy had excluded from its safety study, were ubiquitous throughout the global range approved under the Fisheries permit. Future collisions between beaked whales and Navy sonar were inevitable, he said, if the Navy was granted a permit to deploy LFA sonar across the world’s oceans. The map was entered into evidence, and Balcomb returned to his seat.

When the two Department of Justice attorneys followed with their presentation, they were immediately on their heels.
¹
They seemed flustered by the concerns that the judge had voiced during her preliminary comments. Instead of defending the legal requirements of the permitting process that NRDC had attacked, they walked through their brief in some detail. The judge kept interrupting them to say she’ d already read their submissions and was familiar with their arguments. The two attorneys ended up deferring most of their allotted time to their expert witnesses. Clark and Tyack argued that the Navy’s scientific research program demonstrated that low-frequency sonar’s impact on marine mammals would be negligible. Joe Johnson, the sonar program director, explained why LFA sonar was important to national security and tried to rebut the written declaration from NRDC’s military expert highlighting the technical problems that had plagued the LFA system since its inception.

Darlene Ketten was obviously eager to be heard, but her testimony came off as tone-deaf. She began rather strangely by saying, “I have not testified officially before, and I’ll try to do it right, but I also would appreciate some instruction on how to do so.”

To which the judge replied sardonically, “Just tell the truth.”

Ketten proceeded to dismiss the claims of sonar-related strandings in the Bahamas. She insisted, as she had in congressional hearings and to reporters for the past two years, that sonar hadn’t killed the beaked whales she examined. Rather, they had died of exposure to the elements and the crushing weight of their own bodies on the beach after stranding alive. Judge Laporte pressed her to acknowledge the causal link between sonar and the strandings that the Navy’s interim report had already conceded. Ketten stood firm behind her seemingly obtuse reasoning.

As to the whales that recently stranded on the Canary Islands, Ketten expressed skepticism about the findings of acoustic trauma. “The head analyses were not done with the same rigor as they were in the case of the Bahamas. They do not have appropriate experts there. And there was no brain damage in these animals,” she said. “There was bleeding in the spaces
around
the brain. That’s not at all the same thing.”

It seemed clear from the judge’s expression that she was put off by Ketten’s peculiar parsing of the causes of death. Reynolds could see that in her attempt to “bury” him, Ketten was hurting the Navy’s case. Expert witnesses are supposed to testify to findings of scientific fact. When an expert becomes prosecutorial and starts to try the case for the lawyers, it undermines the credibility of her testimony and the competence of the legal team.

At the judge’s suggestion, the hearing continued through lunch in order to conclude that afternoon. By three o’clock, the Justice Department lawyers were visibly sagging in their seats. The naval officers in attendance seemed agitated and impatient with the pace and direction of the hearing. As the crowded courtroom emptied out onto Golden Gate Avenue, Reynolds had to struggle to keep a lid on his optimism. Despite all the positive signals from the judge’s comments and questions, Reynolds knew that he’ d have to await her formal ruling before he could relax. In the meantime, he permitted himself and his team a celebratory meal and congratulated them all on a job well done.

•  •  •

Three weeks after the hearing, Reynolds received a call from Judge Laporte’s clerk alerting him to stand by for a fax of the judge’s ruling. Reynolds and Wetzler hovered over the fax machine, grabbing each of the 37 pages and speed-reading them as they came through.

It was a lengthy and detailed decision. The judge reviewed the arguments on both sides, point by point, noting the strengths and weaknesses of each argument, as well as the statutory mandates that drove her ruling. Finally, on the last page, the judge ruled on the motion for a preliminary injunction:

The plaintiffs have shown that they are likely to prevail on establishing violations of the Marine Mammal Protection Act, the National Environmental Policy Act and the Endangered Species Act. They have also shown the possibility, indeed the probability, of irreparable injury . . . It is undisputed that marine mammals, many of whom depend on sensitive hearing for essential activities like finding food and mates and avoiding predators, and some of whom are endangered species, will at a minimum be harassed by the extremely loud and far traveling LFA sonar . . .

The Court has also balanced the hardships and considered the public interest. The public interest in the survival and flourishing of marine mammals and endangered species, as well as a healthy marine environment, is extremely strong. Indeed, Congress enacted the Marine Mammal Protection Act and the Endangered Species Act in recognition of this compelling public interest, not only to the American public but to the international community, and not only to present generations but to future generations to come . . . Stewardship of the world’s precious oceans and the marine life within them is undoubtedly of utmost importance.