Justices asked to hear Navy sonar, whales case

updated 7:19 p.m. ET March 31, 2008

WASHINGTON - The Justice Department on Monday asked the Supreme Court to review a federal appeals court decision limiting the Navy's use of sonar off the Southern California coast because of potential harm to dolphins and whales.

The Justice Department petition argues that the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes the Navy's ability to train sailors and Marines for service in wartime.

The agency also contends that national security interests trump those of marine mammals, and that its use of mid-frequency sonar in training exercises hasn't caused any documented harm to dolphins or beaked whales in the waters where they're conducted.

"We believe that this is an issue that is absolutely essential to national security and that a Supreme Court review of this case is warranted," said Cmdr. Jeff Davis, a Navy spokesman. He said sonar was the only way to detect quiet diesel electric submarines used by potential adversaries.

The Natural Resources Defense Council, which sued the Navy over the issue, contends that exposing dolphins and beaked whales to sonar can hurt them by disrupting their feeding and mating patterns and, in the worst case, can kill them by causing them to beach themselves.

NRDC attorney Cara Horowitz said lower courts had concluded there would be near certain harm to marine life in Southern California if the Navy went ahead with sonar exercises as planned.

"That's why in our view it's critical the Navy take all reasonable steps to minimize harm to marine life as the lower courts ordered," Horowitz said. "We expected the Navy to seek review in the Supreme Court but we'd be surprised if the court agrees to take the case."

An injunction by a federal judge in Los Angeles ordered the Navy to shut off all sonar use within 2,200 yards of a marine mammal. Earlier this year the 9th Circuit gave the Navy leeway to lessen that restriction if it determined it was in a critical maneuver point, so that complete shutdown would come at 200 meters (about 219 yards). That's the restriction the Navy is currently operating under.

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