Supreme Court, in 5-4 Decision, Reverses Lower Court Decision and Supports Navy in the Sonar Case

Well … last week we got the news that the Supreme court, in a 5-4 decision, has supported the US Navy, reversing a lower court decision in its case against environmental groups in California who had previously won a decision at the appellate court level.  This is disappointing to environmentalists everywhere but for the moment our attention is on what it means for our film — since this is a topic we deal with and in fact we were about to shoot the LA scenes which are centered on the Navy/Sonar issue when this ruling came out.

The good news is — it came out in time for us to put on the brakes and make sure our story makes sense in light of this new reality.   In truth it does not affect the broad outlines of the story — however it does affect certain key aspects.  For example, in the story the Navy is conducting exercises in the Bahamas in part because of the ban in California.  Also, Hawk’s position when he confronts the Navy Commander on this is buttressed, in the original script, by the fact that the California ban is in place.  Had the Supreme Court upheld the California Ban (as many predicted it would), his position would have been even stronger.  Now … with the decision going the other way … a re-think is in order.

While this situation  of “breaking news” affecting a film-in-progress is a little unusual, the mental gymnastics to accomodate a slightly altered reality are not. We go through this all the time in our regular process of creating and refining a story — the only difference is the “let’s alter the assumptions” consideration is fictional and under control of the writers, whereas in this situation the altered assumptions are imposed on us from the “real world”.

It’s an interesting challenge.  We are going to move with “all deliberate haste” to factor this new reality into the story in such a way that it does no harm — and may in fact help — the story we are telling.  But it will take a few weeks to assess the impact and adjust the script and scenes.  Slight delay, but the important thing is to get it right.

Here is one of the articles on the Supreme Court Ruling:

Supreme Court on sonar: Navy trumps whales
Bob Egelko, Chronicle Staff Writer
Thursday, November 13, 2008

(11-12) 19:00 PST — Threats to national security are more important than possible harm to whales and dolphins, the Supreme Court ruled Wednesday in lightening restrictions on the Navy’s use of sonar in anti-submarine training off Southern California despite its potential effects on undersea creatures.

The ruling, the first of the court’s 2008-09 term, accepted the Navy’s arguments that the limitations would hinder vital exercises in the use of sonar to detect enemy submarines. The restrictions, imposed by lower courts, would have required the Navy to reduce or halt underwater sonar pulses when marine mammals might be nearby.

“Forcing the Navy to deploy an inadequately trained anti-submarine force jeopardizes the safety of the fleet,” Chief Justice John Roberts wrote in the majority opinion. The resulting damage to the Navy and the public interest, he said, outweighs the injury that environmental groups that challenged the use of sonar might suffer from “harm to an unknown number of marine mammals that they study and observe.”

The ruling – endorsed by six of the nine justices, and in part by a seventh – overturned decisions by a federal judge in Los Angeles and the Ninth U.S. Circuit Court of Appeals in San Francisco restricting sonar use during training exercises scheduled to end next month.

The court kept its ruling relatively narrow, however, and did not address the legality of an order by President Bush in January seeking to remove all legal restrictions on sonar by exempting the Navy from environmental laws. The judge in Los Angeles ruled that the order was invalid.

The case was also limited by the Navy’s decision to challenge only two of the six restrictions on sonar use that the lower courts imposed. One unchallenged restriction, which remains in effect, bans the Navy from using sonar within 12 miles of the coast.

“It’s gratifying that the court did not accept the Navy’s expansive claims of executive power,” said Richard Kendall, an attorney who represented the Natural Resources Defense Council and other environmental groups in seeking to maintain the restrictions.

Joel Reynolds, a lawyer with the same organization, said the ruling would have little effect on the Navy’s one remaining anti-submarine exercise off Southern California. He also noted that the Navy is preparing an environmental impact report for future anti-submarine training, which he said had been the plaintiffs’ main goal all along.

After 10 years of litigation, he said, “we have seen significant progress.”

Navy officials declared victory.

“This case was vital to our Navy and our nation’s security,” said Navy Secretary Donald Winter. “We can now continue to train our sailors effectively, under realistic combat conditions, and certify our crews ‘combat ready’ while continuing to be good stewards of the marine environment.”

The Navy has used sonar for 40 years in anti-submarine training off the Channel Islands and nearby coastal areas. Environmentalists say scientific studies show that sonar pulses damage the hearing organs of whales and dolphins, can interfere with their ability to navigate, mate and find food, and have caused whales to strand themselves on shore.

The Navy says its voluntary safeguards protect marine mammals. Those safeguards include the posting of lookouts and requirements to reduce sonar when vulnerable creatures are nearby.

But U.S. District Judge Florence-Marie Cooper of Los Angeles said in an August 2007 ruling that the protections were “woefully ineffectual and inadequate” and would leave nearly 30 species at risk, including five species of endangered whales. She also said the Navy had failed to show that a mandatory buffer zone on sonar use and other restrictions would disrupt training.

Cooper’s injunction was modified by the appeals court to allow commanders to reduce buffer zones at crucial times in training. The injunction has been in effect since March, affecting several exercises in a series that began in January 2007.

The Supreme Court said Wednesday that Cooper and the appeals court had given too little weight to the Navy’s concerns.

Roberts’ opinion quoted top Navy officials as saying sonar training under realistic conditions would be hindered by the two restrictions they challenged: a requirement that sonar be shut off whenever a marine mammal is spotted within 2,200 yards, and a requirement to reduce sonic pulses by 75 percent during conditions in which underwater sound travels farther than usual.

Judges must defer to those expert assessments, the chief justice said, especially because the Navy has conducted sonar training for four decades “with no documented episode of harm to a marine mammal.”

Dissenting Justice Ruth Bader Ginsburg, joined by Justice David Souter, said Cooper had properly used her authority under the environmental law after finding that unrestricted sonar use could harm thousands of creatures. Instead of conducting an environmental study as the law required, or asking Congress to change the law, Ginsburg said, the Navy undermined the law with a “self-serving resort to an office in the White House” for an exemption.

Ruling on whales and sonar

How the Supreme Court voted Wednesday in a ruling loosening restrictions on the Navy’s use of sonar in anti-submarine training off the Southern California coast:

— Majority: Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.

— Concurrence: Justice John Paul Stevens.

— Partial dissent: Justice Stephen Breyer. He agreed with the majority that national security concerns outweigh possible harm to whales and dolphins from sonar use, but said buffer zones imposed by lower courts, with exceptions for critical points in the training exercises, should remain in place while the Navy completes an environmental study.

— Dissent: Justices Ruth Bader Ginsburg and David Souter, who said the restrictions were validly based on evidence of potential harm to thousands of marine mammals.

The full opinions in the case, Winter vs. Natural Resources Defense Council, 07-1239, can be read at

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