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 pageok [Orin Kerr, November 12, 2008 at 1:06pm] Trackbacks First Opinion in an Argued Case in OT08: That was quick -- the Supreme Court has handed down its first signed opinion of the new Term, Winter v. NRDC, a case argued just a month ago about the standards for a preliminary injunction. In the dog-bites-man department, the Court reversed a Ninth Circuit panel of Reinhardt, Betty Fletcher, and Dorothy Nelson that had enjoined aspects of U.S. Navy sonar training exercises. But what explains the hurry in getting out the complicated set of opinions so quickly? SCOTUSblog explains:The Court had heard argument in the case on Oct. 8, and moved comparatively rapidly to prepare the opinions because the specific round of sonar exercises the Navy is conducting are to be finished by January, at the latest. (link) Ben P: before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy's sonar training, even thoughthat court acknowledged that "the record contains no evidence that marine mammals have been harmed" by the Navy's exercises. 518 F. 3d 658, 696 (CA9 2008). The Court of Appeals was wrong, and its decision is reversed. The tone of that seems odd to me. I don't typically recall seeing "the court of appeals was wrong" stated quite that bluntly. 11.12.2008 1:14pm (link) Office of Fairness (mail): Comment has been removed. 11.12.2008 1:27pm (link) Malvolio: Any predictions on how long before the word "Reinhardt" finds use as a verb meaning "reverse on appeal"? 11.12.2008 1:28pm (link) Happyshooter: The tone of that seems odd to me. I don't typically recall seeing "the court of appeals was wrong" stated quite that bluntly. When you read the opinion in total, the Supreme majority disagreed with the 9th on every point, including ignoring testimony from senior officers. 11.12.2008 1:34pm (link) Ben P: After reading the opinion more fully "dog bites man" seems rather apt. Even if it's not a legal rule, it's rather unextraordinary that the Supreme Court would essentially give a great deal of deference to the Armed Forces when they maintain that a certain activity is necessary. However, the procedural history here seems strange to me. I'd have to do more reading into what the district court actually wrote, but the idea of the District Court finding that there was the likelihood of danger, the appeals court reversing in part and remanding for more limited conditions, the Navy deciding that wasn't good enough and going to the CEQ to get their "own" conditions, just seems strange to me. 11.12.2008 1:36pm (link) Dave N (mail): When I first read the posts, I thought "Comment has been removed" was in response to Ben P.'s post immediately above it. It is not. The Court's decision (by Chief Justice Roberts) contains that language in its introductory section. 11.12.2008 1:36pm (link) Cornellian (mail): I guess the Navy can afford better lawyers than the dolphins can. 11.12.2008 1:41pm (link) JohnO (mail): I'm glad to see the court referenced (at page 14 of the slip opinion) that the military context matters here, and that the Court's military deference doctrine counsels that the Court give great deference to the military's assessment of need (and the judiciary's concomitant lack of expertise in making such evaluations). The Court potentially could have just said the 9th Circuit got the test wrong and remanded it, which would have left it unclear how the military aspects of the case should be viewed below. 11.12.2008 1:42pm (link) Q: Michael Stipe is NOT pleased. 11.12.2008 1:49pm (link) Anderson (mail): Stupid whales! Go to your *own* part of the ocean! 11.12.2008 1:50pm (link) MisterBigTop (mail): Thank God sanity ruled the day on this one! 11.12.2008 1:51pm (link) Dave N (mail): I would also note the anomoly that the 9th Circuit decision reversed today (NRDC v. Winter, 518 F.3d 658 (2008)) was argued on February 27 and the decision issued on February 29. As an appellate attorney in the 9th Circuit, I consider a two day turnaround to be nothing short of breathtaking. The district judge in the case is Florence Marie Cooper, appointed by President Clinton in 1999 after she had served eight years as a state superior court judge. I know nothing else about her. 11.12.2008 1:54pm (link) Simon Dodd (mail) (www): I couldn't find the complaint in PACER, and it's not really apparent from the opinions: why do these plaintiffs have standing in the first place? What's their injury? 11.12.2008 2:18pm (link) Al Maviva: This is a travesty! Everybody knows sonar causes autism in whales. 11.12.2008 2:20pm (link) A Law Dawg: The whales will get the last laugh when their friend shows up. 11.12.2008 2:24pm (link) Dave N (mail): Most significantly for practioners in the 9th Circuit (as opposed to the Navy), the Court held that the 9th Circuit's "possibility of success on the merits" preliminary injunction standard is too lenient (slip op. at 12). 11.12.2008 2:25pm (link) James Gibson (mail): As Malvolio noted Reinhardt has been reversed "again." I can also note that so has the NRDC which is probably just making Robert Kennedy Jr just fit to be tied. But of more note look at how the vote went down. Stevens, the World War II veteran and war hero voted for complete reversal but wouldn't support the majority opinion. Breyer was for partial reversal leaving only Souter and Ginsburg supporting the 9th circuit ruling. Hardly the split court SCOTUS Blog suggests. But also showing that the partisanship on the court is as strong as ever, even when some of the Liberals agree with the conservatives. 11.12.2008 2:32pm (link) Tom M. (mail): The opinion has a slight mathematical error... There is an exponential relationship between radius length and surface area (Area = π r^2). (p 18) The mathematicians and scientists I know would say that's a power-law relationship. An exponential relationship would be something like x = 2^y. Still the court has ruled that a tomato is a vegetable so perhaps it has jurisdiction over mathematical as well as botanical terminology. 11.12.2008 2:46pm (link) Ben P: I couldn't find the complaint in PACER, and it's not really apparent from the opinions: why do these plaintiffs have standing in the first place? What's their injury? It's been a while since I've studied environmental law in detail, but as I recall it's statutory. The National Environmental Policy Act (NEPA) requires any government agency to prepare an "Environmental Impact Assessment" (EIS) prior to conducting any "major federal action significantly effecting the environment." Because the EIS is time consuming, agencies also have the option in cases to simply prepare an Environmental Assessment (EA) that will state that the action will have "no significant impact" and therefore that an EIS is not required. NEPA is entirely disclosure based. It's irrelevant what the actual consequences are as long as the agency fills out the proper reports. If they fail to prepare the reports, the statute give some standing for citizen suits to force the reports to be prepared (and probably enjoin the action until they are prepared). In this case I believe the Navy prepared only an EA that stated that the sonar tests would have no significant impact. The plaintiffs sued to enjoin the exercises and contended that the would have an impact of some sort. The question in this case was whether or not there is sufficient evidence to grant a preliminary injuction to stop the Navy from conducting the exercises prior to preparing the reports. 11.12.2008 2:49pm (link) wandering by (mail): I didn't read the opinion but if it is referring to the surface area of a circle than it is not exponential (2*pi*radius). If it is referring to a sphere than it would be exponential but the formula would be 4*pi*radius squared. 11.12.2008 2:57pm (link) MGoBlue (mail): conlawprof: "(In addition to the separation-of-powers issue, counsel for the NRDC may have opened up a standing question in arguing irreparable harm (on the preliminary injunction). Justice Scalia noted that harm for the preliminary injunction is the same as harm for standing, and the NRDC might not have it. That's because the NRDC sued in part on the ground that the Navy failed to comply with the National Environmental Policy Act (NEPA) by not issuing an Environmental Impact Statement (EIS)—a procedural harm, which, as Justice Scalia noted, 'is not the kind of harm that gives rise to Article III standing.')" 11.12.2008 3:06pm (link) za3lan: wandering by - 2*pi*r measures circumference... 11.12.2008 3:09pm (link) BZ (mail): Bay Area Peace Navy v. U.S. Navy, 914 F.2d 1224 (9th Cir. 1990)(75-yard water-borne exclusion zone upheld). Note that the Navy suggested that the Peace Navy should get a bigger boat. They might have changed their position since the U.S. Cole bombing, but haven't seen a case. 11.12.2008 3:11pm (link) BZ (mail): Oops, should have been "zone struck down". 11.12.2008 3:12pm (link) Bob from Ohio (mail): It was only 6-3. Reinhardt would call that an "historic victory" I think. 11.12.2008 3:21pm (link) Dilan Esper (mail) (www): The preliminary injunction analysis is actually quite interesting. The Ninth Circuit engages in a lot of flim-flam to grant preliminary injunctions, not only relaxing the irreparable harm standard but also presuming irreparable harm in many cases. The Court seems to be saying, far beyond the issue of military sonar, that these standards aren't right and that preliminary injunctions should only issue on a very strong showing. 11.12.2008 3:26pm (link) Sean M: "The Court of Appeals was wrong and its decision is reversed" is blunt, but is Roberts's tone. I listed to some of his oral advocacy at the Oyez Project in preparation for my own Moot Court and I recall him ending one introduction as something like: "The decision of the Court of Appeals was incorrect and it should be reversed." 11.12.2008 3:55pm (link) Tom M. (mail): Not to get sidetracked on the math, but... For a circle: circumference = 2 pi r area = pi r^2 volume = 4/3 pi r^3 None of these relationships are exponential and all of them would be called power-law relations (with respect to radius). The relationship between radius and circumference is also 'linear' which is essentially short hand for a power law relationship where the power is 1. An exponential relationship must have the variable in the exponent. So x = y^1000000000000000 is a power-law relationship -- but to a pretty high power! x = 1.00000000001^(.00000000000001 y) is exponential but will nonetheless appear almost constant for reasonable values of y. 11.12.2008 4:12pm (link) MartyA: There is some good news here. We've got to find things for the BDS crowd to do with all their spare time. This provides such a thing. Now, whenever a whale dies on a beach anywhere in the world these whackos will be able to protest and riot and blame the USN. BTW, whale meat tastes a lot like chicken. 11.12.2008 4:31pm (link) Oren: When you read the opinion in total, the Supreme majority disagreed with the 9th on every point, including ignoring testimony from senior officers. Testimony that was shown by the record to be blatantly untruthful. The trial court was correct in finding that testimony entirely incredible. And, yes, Roberts has no idea what the word exponential means. 11.12.2008 4:44pm (link) Tom M. (mail): Shouldn't have included the volume formula. It is in any case the volume of a sphere rather than a circle. 11.12.2008 4:49pm (link) UW3L: Howard the Porpoise is gonna be pissed. 11.12.2008 4:50pm (link) ForWhatItIsWorth: Anderson: "...Stupid whales! Go to your *own* part of the ocean!" The problem with this entire case and all of the protests, etc is this: MOST and I do mean the vastest possible majority of sonar activities are "passive." Active sonar (Of the higher power variety) is used, mainly, to target an enemy at the point you don't care that they know of your presence. Most sonar exercises are, indeed, passive in nature. That is where the real practice is required. Listening and determining what it is you are hearing..... and exactly where it is.... all while staying as silent as possible so as not to give your own position or presence away. You cannot do that with active sonar. "You ping, you die" was an informal motto used in my day. Are whales bothered by passive sonar? Uh, let's not be silly. The sonar technician would be more concerned about the noises the whale is making than the whale would be of our "silence." Navigation sonar is certainly active to make sure we aren't going to run aground while coming into port, but that is not very powerful sonar. In fact, I would contend that much of this hullabaloo concerning whale running aground happened when "scientific" organizations started using their ACTIVE sidescan sonar...... anyone think to blame them? Hmmm? 11.12.2008 4:51pm (link) Oren: I'm glad to see the court referenced (at page 14 of the slip opinion) that the military context matters here, and that the Court's military deference doctrine counsels that the Court give great deference to the military's assessment of need (and the judiciary's concomitant lack of expertise in making such evaluations). That would be OK with me if the Navy's statements of needs were consistent with their previous statements and actions. On the other hand, when their statements are contradicted by a substantial record, that deference evaporates. 11.12.2008 4:56pm (link) Oren: Most sonar exercises are, indeed, passive in nature. That is where the real practice is required. Listening and determining what it is you are hearing..... and exactly where it is.... all while staying as silent as possible so as not to give your own position or presence away. You cannot do that with active sonar. "You ping, you die" was an informal motto used in my day. Large surfaces groups are too loud to use passive (well, the pickets do all the way 50 miles from the CVN, but in the core active is the way to go). Furthermore, their rough position ought to be apparent for 400 nm away (since they have an E2-C up in the air, not to mention the rest of the air wing). The dynamic is very different from a submarine hunting alone where stealth is at a premium. 11.12.2008 4:59pm (link) Happyshooter: Questions. Post USS Cole attack, would the Navy violate the constitution if it shot and sunk vessels 150 yards away from its vessels? Would it be in violation of the the Bay Area Peace Navy injunction affirmed by the 9th Circuit? Because the 9th circuit held that a 75 yard security zone violates the constitution, are each of the judges on the circuit at fault in the deaths of the USS Cole Sailors? 11.12.2008 5:20pm (link) whit: oh noes! the 9th got overturned by the scotus? i'm shocked :l 11.12.2008 5:31pm (link) Oren: Because the 9th circuit held that a 75 yard security zone violates the constitution, are each of the judges on the circuit at fault in the deaths of the USS Cole Sailors? If the gunners on the Cole (a) didn't shoot the bad guys because of the ruling and (b) would have shot the bad guys absent the ruling, then yes. For those of us in reality-land, there is no constitution provision requiring the Navy in Yemen to do anything. 11.12.2008 5:33pm (link) Vermando (mail) (www): "the Court's military deference doctrine counsels that the Court give great deference to the military's assessment of need (and the judiciary's concomitant lack of expertise in making such evaluations)." Was their deference limited to the military's assessment of the need of the exercise, or did they also defer to their characterization of the effects of solar on marine life? The first seems like it would deserve substantial deference on competence grounds, the second not so much. 11.12.2008 5:35pm (link) ARCraig (mail): Kinda OT, but as a non-lawyer this case had me thinking- where exactly is the line between the President's power as commander-in-chief and Congress's power to regulate the armed forces? Is there any established test for such a question? 11.12.2008 5:46pm (link) Harry Eagar (mail): 'BTW, whale meat tastes a lot like chicken.' No, it doesn't. It's been a while since I ate a whale, but it was like very low quality, old beef. 11.12.2008 5:52pm (link) CDR D (mail): >>>BTW, whale meat tastes a lot like chicken.<<< Harry Eagar is about right. It has the texture of Moose, but the taste is kind of like a cross between old beef and fish. Definite fishy flavor in any whale meat I ever ate. But then, consider the animal's diet.... 11.12.2008 6:25pm (link) krs: CDR is right. Beef texture and color (whales are mammals), strong fishy flavor, hint of guilt. 11.12.2008 6:53pm (link) New Pseudonym: As Brother Dave Gardner pointed out in reference to the formulas above, "Cornbread are square, Pi are round." Also, once deference is given to the Navy on the need for the exercise, what weight does the purported effect on marine life have to be given, if any? 11.12.2008 7:10pm (link) Riley Still (mail): Oren: Why is it that "... there is no Constitutional provision requiring the Navy in Yemen to do anything ..." but there are Constitutional provisions that require the Navy to do and not do certain things in Cuba? 11.12.2008 7:53pm (link) Lior: Tom M.: in fact, you have the formula for the volume of the ball. The sphere is the two-dimensional boundary of the ball; it has area $4\pi r^2$. 11.12.2008 8:29pm (link) JohnO (mail): To those who have asked, the military deference doctrine obliges the courts to give deference to the political branches' views as to the effect a challenged practice will have on military readiness and/or the government's interest in a program touching on military affairs, to the extent these considerations are applicable to the legal test at issue. Because the preliminary injunction test required an assessment of the effect an injunction would have on the Navy's training and readiness, the Court deferred to the military's assessment of such effects. The military deference doctrine should not, and would not, extend to the military's assessment of the effect of its activities on marine mammals. To the extent that issue is relevant, or necessary to the Court's decision, one wouldn't expect a defernetial analysis of the question by the courts. 11.12.2008 9:11pm (link) Wildlifer: ForWhatItsWorth, I've worked three stranding events linked to Navy manuevers off of the East coast. There were no scientific research ships underway in any of the cases. The Court ruling was wrt active sonar. It is believed the sonar "scares" them out of the water, resulting in a marine mammal version of the bends. Good thing that marine mammal euthanization training is next week. (The fate of all that survive to reach shore) We're going to need it. 11.12.2008 9:20pm (link) John Moore (www): ForWhatItIsWorth Active sonar is becoming more important than in the past. Unlike in the past, modern diesel subs also do not need to surface for weeks, and that combined with their extreme quietness makes them a real threat. Potential adversaries including China have these quiet boats. Surface fleets thus need to use high power active sonar to even detect them, much less to track and range. When I was involved in ASW (P-3), we used passive sonar until right before the kill, when we used a primitive active sonar. Today, that passive sonar wouldn't be good enough. Wildlifer Considering the total number of whales stranded in these events is less than a dozen, it is pretty hard to make a strong scientific case that the sonar was responsible for the whale behavior. There is also a valid question as to the balance of harm between insufficient training of the sailors, and the death of a few whales. One of the reasons the US military is so superior is the very good and frequent training of its personnel. Crippling this capability is dangerous. BTW, are beached whales tasty? Sounds like a good novelty food source. 11.13.2008 1:12am (link) Wildlifer: John Moore, Many whales/dolphin/porpoise are T&E species. Many others are so under-studied, we've no idea of their life histories or populations. So if even one strands in an event - and it's usually dozens unless it's a more solitary species - it's going to be a take of a T&E species. NOAA is not even funding marine mammal stranding response in the SE region anymore and other gov't and private entities are having to take up the slack. I can understand the need during time of war, but I don't understand why simulators couldn't be used in peace time. You'll have to ask the gulls and the crabs if the whales are tasty. 11.13.2008 6:40am (link) c.l.ball (mail) (www): Two things make this decision interesting: the reversal of "activist" conduct and the recurrent problem of expertise. The Ginsberg/Souter dissent is clear. All the Navy need have done was produce the environmental impact statement (EIS) that the NEPA required. Had it done so, and had the EIS found no likely harm to marine mammals, the Navy could have proceeded. It appears, however, that the Navy feared a legitimate EIS would discover that damage would occur to proximate whales. After all, its shorter environmental assessment concluded that damage would occur and came up with some mitigation strategies. It is unclear how effective those would be; an EIS would have determined that. The majority opinion argues that the NEPA and related legislation should be set aside and that the courts should focus on the balance of equities. The SC agrees that the courts should make political judgments -- which public good (protection of marine life v. navy training) should be given more weight. It argues that the lower courts made the wrong judgment and substitutes its own. 11.13.2008 9:44am (link) ForWHatItIsWorth: Marinelifer: "....It is believed the sonar "scares" them out of the water, resulting in a marine mammal version of the bends....." Are you sure about this? For a whale to get the bends would be quite interesting. As a professional diver, both in the civilian world (Divemaster) and the U.S. Navy (Master Diver), I would find that pretty impressive. In other words, I am very well versed in the medical research concerning the "bends" and its causes/mitigation. Please elaborate on how their nitrogen uptake from a deep dive, and despite the mammalian response, produces the "bends" when sonar "scares them out of the water." Them being whales, not people. This should be interesting. We really need to sit back here and get a grip. Considering the sheer amount of active sonar that has been used during wartime and so on, there should have been beachings all over the place. While the exercises in question may well be in-part active, they are not of lengthy duration and certainly aren't of the duration that has been experienced prior. To John Moore: "Mark on top.... now, now, now!" 11.13.2008 10:27am (link) Abdul Abulbul Amir (mail): I can understand the need during time of war, but I don't understand why simulators couldn't be used in peace time. Simulators are often good, but never as good as the real thing. You discover and correct problems found in real training that can never be discovered in a simulator. 11.13.2008 10:32am (link) DiverDan (mail): c.l.ball states: The Ginsberg/Souter dissent is clear. All the Navy need have done was produce the environmental impact statement (EIS) that the NEPA required. But NEPA doesn't require an EIS for EVERY federal action; it explicitly requires an EIS ONLY for actions that will have a significant environmental impact. The Environmental Assessment prepared by the Navy expressly found that there would be no significant environmental impact; thus no EIS was required. As the District Court granted the preliminary injunction without a full trial on the merits, there was no finding that the Navy's assessment was either wrong or arbitrary and capricious. Yes, the Navy found that Active Sonar could harm "proximate" whales, but the mere possibility that whales might be close enough to be harmed when active sonar was engaged does NOT demonstrate "significant" environmental impact. The dissenters just ignore this point; they want to rewrite NEPA to require an expensive and time-consuming EIS for EVERY federal action which might conceivably have any environmental impact. The dissenters also completely ignore the fact that the 9th Circuit (and the District Court) chose to rewrite the legal standard for issuance of a preliminary injunction; rather than requiring a showing of "substantial likelihood" of harm, the injunction was issued based upon the mere possibility of harm. 11.13.2008 10:37am (link) ForWHatItIsWorth: Oh, I should have said "retired" U.S. Navy. My apologies. DiverDan, you are quite correct. The Navy has to fill out EIS on all manner of things. Exercises should not be one of them unless there is a certainty or near certainty of some harm. This would be for several reasons, one of which may be the security required for the exercise. The timing of exercises is often critical and schedule changes can be quite costly. If an EIS were required for any maritime activity of "dubious" damage to the environment, schedules would slip or be completely unknown with the attendant cost to the taxpayer. There was one thing I should have mentioned in my post above, as well. The all-ocean Soviet naval exercises that used to occur during my day. They were anything but quiet. Incredible amounts of active sonar being used by them and, yet, no beachings of which I am aware during those huge exercises. Virtually their entire navy was participating. I am not saying there cannot be problems that need to be researched and mitigated if necessary. But there is something else to consider, why during those exercises, are civilian divers not "damaged" when the exercise are close to shore. Yes, it would appear that our hearing isn't as sensitive as a whale's, but still. Additionally, I do find it difficult to believe that our sonar "scares" whales out of the water. They are exposed to all manner of civilian navigational sonar, scientific sonar, fishing fleet depth sounders and fish locaters, etc, etc. The U.S. Navy is not the only sonar user and may not even be the major user, when it comes down to it. Not sure of the latter, so I'll leave that to someone who is. 11.13.2008 11:28am (link) Harry Eagar (mail): 'Wildlifer Considering the total number of whales stranded in these events is less than a dozen, it is pretty hard to make a strong scientific case that the sonar was responsible for the whale behavior. There is also a valid question as to the balance of harm between insufficient training of the sailors, and the death of a few whales. ' I keep a list of cetacean strandings where I live (Maui), and there are odd pulses, presumably stochastic. In any event, they cannot be related to sonar. They look like 'cancer clusters' to me, that is, meaningless. Since the Navy is in US waters every day, almost every such pulse will be correlated with presence more or less nearby of a Navy ship. 11.13.2008 3:19pm (link) Wildlifer: ForWHatItIsWorth: Whales and other non-pelagic and pelagic cetaceans have to regulate their ascent just as humans do. You might google "cetacean echolocation" to research why human divers wouldn't be bothered by active sonar. See also: Gas-bubble lesions in stranded cetaceans 11.13.2008 5:22pm (link) Wildlifer: Harry Eagar, I do not mean to suggest all strandings are Navy related. There are also fishery interactions, illness etc which can cause them to strand. But, for example in a stranding event I worked in 2005 we had 37 individuals from three different species strand within a couple of days: GOVERNMENT REPORT ON MASS WHALE STRANDING IN N.C. IDENTIFIES NAVAL SONAR AS POSSIBLE CAUSE "Today's report by the federal government establishes that sonar was a possible cause of the January 2005 mass stranding in which 37 whales of three different species died, and that most other possible causes were not in play. "The report establishes that sonar was used in the vicinity of the strandings and that the timing was right for sonar to have caused them. It confirms that the event itself was highly unusual, being the only mass stranding of offshore species ever to have been reported in the region; and that it shared 'a number of features' with other sonar-related mass stranding events (offshore species, stranding alive, atypically distributed). Finally, investigators appear to have eliminated many other potential causes, including viral, bacterial, and protozoal infection, direct blunt trauma, and fishery interactions. "However, it is rare that a stranding investigation gives definitive proof of a connection with sonar. The report released by NMFS today shows once again that this problem endemic to stranding investigations remains true. "We sometimes know when sonar has killed marine mammals because it leaves a calling card: bleeding around the brain, holes in the organs, symptoms similar to those seen in human divers with 'the bends.' That is what we have seen in deep-diving beaked whales. But in other species the signs are less clear. Sonar can cause animals to strand simply by disorienting them; by comparison to the beaked whale strandings, however, those cases are more difficult to prove. 11.13.2008 5:29pm (link) wandering by (mail): I doubt anyone is still reading this thread but some posters seem to have been led astray by the term "surface area." The surface area of a circle would be the circumference- and the surface area of a sphere would be the outer surface. 11.13.2008 6:31pm (link) Harry Eagar (mail): Problem is, Wildlifer, that correlation is not causation, and even extremely rare events do come in clusters, even among unrelated species. For example, the only two strandings ever known of a dwarf sperm whale and a pygmy sperm whale occurred with days and a couple of miles of each other. Neither of these species is even seen around here more often than once every 5 years or so. Not directed at you personally, but evidence doesn't get me very far with whaleolators. We have been having a controversy out here about whether a ferry could or -- some say -- will hit a whale. The fact that ships that size and larger have never hit a whale around here, ever, seems not to count as evidence of anything. 11.13.2008 8:02pm (link) Wildlifer: I think it's been establshed as more than a correlation, based upon necropsies of the animals. What whales are they concerned about getting hit? The Kogia species you mention are usually deep water species (to 1,000 feet)- a reason they are rare. So I don't see much of a danger of them being hit. Here we've seen a right whale strand after a boat strike and there are photos of individual right whales with healed prop scars from old strikes. Unless your ferries are exponentially faster than the ones NC uses, I don't see the problem. 11.13.2008 8:33pm (link) David M. Nieporent (www): But, for example in a stranding event I worked in 2005 we had 37 individuals from three different species strand within a couple of days: GOVERNMENT REPORT ON MASS WHALE STRANDING IN N.C. IDENTIFIES NAVAL SONAR AS POSSIBLE CAUSE Anything is a "possible cause." But that link you provide describes the Bahamas stranding as the "best-documented incident to date," and yet if you actually look at the Bahamas stranding, there's virtually no evidence that sonar played a role; the "necropsies" were based on all of two animals. 11.13.2008 9:02pm (link) Wildlifer: David M. Nieporent, You could be correct. But the possibility an unknown and unseen malady which causes "bends-like" damage which leads cetaceans beach themselves, or die and float in every time sonar is used nearby them violates Occam's razor. These are other-wise healthy animals. When sick animals beach, they are emaciated and have other signs of illness or injury. Whales which beach due to sonar, rarely exhibit any of these signs. I say rarely bacause surf conditions when they beach can often cause severe trauma. The evidence obtained from the two animals in the Bahamas was all that was available, but was emphatic. 11.13.2008 9:38pm (link) ForWhatItsWorth: Wildlifer: "...Whales and other non-pelagic and pelagic cetaceans have to regulate their ascent just as humans do. You might google "cetacean echolocation" to research why human divers wouldn't be bothered by active sonar...." The reason humans must control their ascent is because they are breathing air (or any gas mix) that is under greater pressure than at sea level. THey are "in gassing" at depth due to that. Taking a breath at the surface, descending and ascending rapidly will not cause the bends. Bends are caused by inert gas bubbles coming out of solution, when the ambient pressure is reduced to significantly less than that which the air was "breathed." This doesn't impact oxygen because we utilize it. Oxygen toxicity is something else. Whales do not breath air under increased pressures. As their tissues compress, so does the air. When they come back to the surface, bubbles cannot form because the air was breathed at ambient pressure (sea level) and thus is not saturating the tissues at level greater than that at sea level. NO OUTGASSING, as it were. Thus the bends are not possible. This is why a human being can take a breath of air, dive to depths greater than 400 feet (which is automatic decompression time if you visit that depth with any gas mixture under pressure) and immediately return to the surface without a decompression stop. Read about the new records for free diving. No bends..... Human divers aren't bothered by active sonar? Then why is it that all sonar has to be disabled, and stay disabled, when divers are over the side? Hmmmm? My point being that if people are in the water and their ears aren't blown out of their heads, then it will not do damage to a whale or any other sea life that has the same separation in terms of distance. I DO know well what sonar sounds like underwater. If I hear it, I certainly don't attempt to get closer to it..... nor would a whale. I give them credit for more intelligence than that. 11.14.2008 2:22pm (link) Wildlifer: ForWhatItsWorth I said it was "bends-like" as you should have seen from the link I posted. There are even studies which show repetative shallow dives causes decompression risks in deep-diving whales. REPETITIVE SHALLOW DIVES POSE DECOMPRESSION RISK IN DEEP-DIVING BEAKED WHALES ABSTRACT The impact of naval sonar on beaked whales is of increasing concern. In recent years the presence of gas and fat embolism consistent with decompression sickness (DCS) has been reported through postmortem analyses on beaked whales that stranded in connection with naval sonar exercises. In the present study, we use basic principles of diving physiology to model nitrogen tension and bubble growth in several tissue compartments during normal diving behavior and for several hypothetical dive profiles to assess the risk of DCS. Assuming that normal diving does not cause nitrogen tensions in excess of those shown to be safe for odontocetes, the modeling indicates that repetitive shallow dives, perhaps as a consequence of an extended avoidance reaction to sonar sound, can indeed pose a risk for DCS and that this risk should increase with the duration of the response. If the model is correct, then limiting the duration of sonar exposure to minimize the duration of any avoidance reaction therefore has the potential to reduce the risk of DCS. Whales don't swim closer to the sonar ... they explode up out of the water when hit by it from more than a 1/2 mile away. I thought it was farther than that, but I can't find my source. Whales use echolocation to "see" in the water, now imagine what they're seeing when they get hit by a blast of sonar. 11.14.2008 10:10pm (link) Fluext (mail) (www): MESSAGE 11.26.2008 12:57pm pageok pageok