Ninth Circuit Court Rules Against Navy Sonar

The United States Court of Appeals for the Ninth Circuit recently held that the U.S. National Marine Fisheries Service committed errors in issuing a marine mammal Take Permit for U.S. Navy peacetime sonar operations.  The Ninth Circuit’s opinion includes the following summary:


“The panel [of Ninth Circuit judges] reversed the district court’s grant of summary judgment to federal defendants in a case relating to the proper scope under the Marine Mammal Protection Act (“MMPA”) of mitigation measures required to protect marine mammals when the responsible federal agency, the National Marine Fisheries Service, sought to approve incidental “take” relating to military readiness activities, namely, the Navy’s peacetime use of Surveillance Towed Array Sensor System Low Frequency Active sonar.


The Fisheries Service most recently authorized incidental take of marine mammals from Low Frequency Active sonar use for five years beginning in 2012 in a Final Rule.


The panel held that the 2012 Final Rule did not establish means of ‘effecting the least practicable adverse impact on’ marine mammal species, stock and habitat, as was specifically required by the MMPA. The panel further held that the Fisheries Service impermissibly conflated the ‘least practicable adverse impact’ standard with the ‘negligible impact’ finding; and concluded that to authorize incidental take, the Fisheries Service must achieve the ‘least practicable adverse impact’ standard in addition to finding a negligible impact.


The panel held that the Fisheries Service did not give adequate protection to areas of the world’s oceans flagged by its own experts as biologically important, based on the present lack of data sufficient to meet the Fisheries Service’s designation criteria. The panel remanded for further proceedings.”

Click here to read the court’s opinion.

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