Hawaii Lawyers: Supreme Court Sonar Decision Sets National Security as Paramount

HONOLULU, Dec. 10 /PRNewswire/ — The United States Supreme Court ruled “the Navy and its leaders — not federal judges — should determine how best to defend our nation,” Robert H. Thomas and Mark M. Murakami of the Hawaii law firm of Damon Key Leong Kupchak Hastert wrote in a recent commentary.

Thomas and Murakami had filed an amicus brief in Winter v. Natural Resources Defense Council on behalf of nine retired Navy admirals, the Navy League of the United States–Honolulu Council, and a coalition of military service organizations.

On November 12, 2008, the high court overruled a lower court’s restrictions on Navy sonar training within 12 miles of the California coastline or within 1.2 miles of any whale spotted.

“The Navy has gone to extraordinary lengths to protect marine mammals from perceived harms and this decision protects the Navy’s authority to conduct operations unconstrained by an individual judge’s notions of what’s good for the fleet,” said retired Navy Admiral Stephen R. Pietropaoli, now Executive Director of the U.S. Navy League. “The use of sonar to detect submarines, particularly the silent diesel-electric sub, is critical to national defense given increased global risk.” Pietropaoli, one of the parties to the amicus brief, was Navy Chief of Information and a surface warfare specialist before retiring.

The retired admirals, with more than 300 years of collective naval warfare experience, and a coalition of organizations outlined the threat from silent submarines, and asserted sailors should not be precluded from training realistically.

“The U.S. Supreme Court said judges should not lightly second-guess the Navy’s judgment,” Murakami added.

A torpedo can sink a carrier with a crew of 4,000. These submarines can carry nuclear, biological, or chemical weapons. Under the lower courts’ restrictions, the first time a sonar operator could use his equipment realistically is in combat, when there is no margin for error.

Thomas said that in Winter v. NRDC, the high court held that the balance between national security and our nation’s desire to protect marine mammals tilted in favor of defense.

“The United States has done more than any other country to protect whales, porpoises, seals, and other mammals,” Murakami said; “our clients filed as friend of the court to ensure the Supreme Court knew the urgent need to protect our ships, sailors and marines from the threat of quiet, diesel-electric submarines.”

The lower court imposed restrictions on sonar because environmentalists claimed mid-frequency active (MFA) sonar frightens or injures whales. However, there has been no evidence of harm to a marine mammal in the 40-plus years of sonar use in the training area.

The Navy employs two sonar types: passive sonar detects sounds emitted by submarines; active sonar transmits sound and listens for a reflection. Active sonar is the most effective to detect diesel-electric submarines, designed for silent running and to avoid discovery by other types of sonar. China, North Korea, and Iran, among others, have deployed them, and recently, a Chinese submarine went undetected until surfacing within torpedo range of the Kitty Hawk Strike Group. This battle group was later shadowed in the Taiwan Strait, prompting a 28-hour standoff between Chinese and U.S. warships.

Even with a Congressionally provided exemption from the Marine Mammal Protection Act, the Navy takes extraordinary fleet-wide measures to minimize effects of MFA sonar, including extra lookouts with enhanced search procedures, limitations on transmission levels within 1,000 yards of mammals, and additional powering down when mammals come within 500 yards of sonar equipment.

The Supreme Court recognized that judges do not have the expertise to evaluate threats, and the lower court injunction unnecessarily put sailors, and the nation they defend, at risk. The Court noted, “neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Training sonar operators is of paramount public interest; the fleet cannot be jeopardized because environmental groups fear an imposition on their desire to “take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats.”

Thomas and Murakami are directors of Damon Key Leong Kupchak Hastert (hawaiilawyer.com), a Meritas firm. Thomas is a land use and appellate lawyer and Murakami, formerly on Coast Guard active duty with both shipboard and judge advocate assignments, practices commercial and land use litigation, environmental and maritime law.

Thomas’s blog, http://www.Inversecondemnation.com, covers developments on regulatory takings, eminent domain, inverse condemnation, property rights, and Hawaii land use law.

Murakami’s blog, http://www.Hawaiioceanlaw.com, relates to the ocean and its maritime use, in and around Hawaii, Oceania and beyond.

[Via http://www.prnewswire.com]

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