Tag Archives: Joel Reynolds

Agency failing to protect marine mammals from the Navy — Joel Reynolds

After more than a decade of losing court battles, the U.S. Navy still refuses to fully embrace the idea that whales and other sea creatures should be protected during Navy training exercises, says Joel Reynolds, senior attorney for the Natural Resources Defense Council.

But the blame cannot be placed entirely on the Navy, Joel says in a blog entry he wrote for the Huffington Post.

“In fact, much of the blame lies with the government regulatory agency whose mandate it is to protect our oceans,” he writes. “It lies with the failure of the National Marine Fisheries Service to do its job.”

Joel has been at the forefront of the legal effort to get the Navy to change its ways — and the effort has been successful to a large degree. At least we now have a much greater understanding about the effects of sonar on whales and other marine animals. Legal challenges forced the Navy to acknowledge that it didn’t really know what damage its activities were doing to the oceans. The result was to develop studies, which turned out to provide some unwelcome answers.

Joel’s latest frustration comes this week in the wake of new authorizations by NMFS to sanction Navy activities found to be unacceptable by the U.S. Ninth Circuit Court of Appeals.

Joel’s life story and that of Ken Balcomb, who I call the dean of killer whales in Puget Sound, are described in intriguing detail in the book “War of the Whales” by Joshua Horwitz. The book documents their personal and legal battles to hold the Navy accountable for its impacts on whales.

In January 2015, I reviewed the book (“My take on the book…,” Water Ways, Jan. 10, 2015), and I also interviewed the author for his inside story (“A discussion with author Joshua Horwitz,” Jan. 11, 2015).

USS Shoup, a Navy destroyer based in Everett. U.S. Navy photo — USS Shoup, a Navy destroyer based in Everett.
U.S. Navy photo

The Navy would never have found itself on the losing side of these sonar lawsuits if the National Marine Fisheries Service (sometimes called NOAA Fisheries) had been doing its congressionally mandated job of protecting marine mammals, Joel says. For the agency, that would mean approving “take” permits only when the Navy has done its best to reduce the risk of injury during training exercises — which everyone agrees are important.

“Rather than exercising the oversight required by law, the Service has chosen in effect to join the Navy’s team, acquiescing in the omission of common-sense safeguards recommended even by its own scientific experts,” Joel writes in his latest blog post.

After reading his post, I asked Joel by phone yesterday what it would take to get the National Marine Fisheries Service on the right track.

“I don’t have an easy answer for that,” Joel told me, noting that he recently held a related discussion with Sylvia Earle, renowned oceanographer and formerly chief scientist for the National Oceanic and Atmospheric Administration.

“She is very familiar with the problems of NMFS,” Joel said. “She said NMFS is an agency responsible for killing fish.”

That said, the agency has a lot of dedicated researchers and experts who know what needs to be done, especially at the regional level. But they are hamstrung by federal politics and by budget limitations.

“The Pentagon is essentially able to dictate every part of government,” Joel said. “The financial implications are very real, because the military is so powerful. If NMFS gives them trouble, they call their contacts on Capitol Hill, and pressure is brought to bear.”

The Navy has spent decades operating at its own discretion throughout the world’s oceans. The notion that another federal agency or some upstart environmental groups should limit its activities just doesn’t sit well among established Navy officers.

The problem is so entrenched in government that any resolution “is going to take some focused attention under the next administration,” according to Joel.

If Hillary Clinton is elected, Joel said he might look to John Podesta to untangle the mess. Podesta served as chief of staff under President Bill Clinton and was instrumental in opening up long-held but arguably unnecessary government secrets. He currently serves as chairman of Hillary Clinton’s campaign.

“John Podesta understands these things,” Joel told me. “If we can’t get him (to do something), we can’t get anyone. I think it would take a reorganization. The way NMFS is set up, they are in the business of authorizing ‘take’ instead of issuing permits based on the protections that are needed.”

Joel wasn’t clear how a regulatory agency might be organized to hold its own against the Navy, but the idea should be on the table, he said. Until then, the NRDC and other environmental groups will continue to battle in the courts, where judges are able to use some common sense.

Meanwhile, NOAA has developed an “Ocean Noise Strategy Roadmap,” which promises to find ways to control harmful man-made noise. The roadmap is based, in part, on scientific studies about the hearing capabilities of marine mammals. Review my Water Ways post on the “draft guidance” Water Ways, March 26, 2016.

These steps have been encouraging — at least until this week when NMFS issued letters of authorization for the Navy to keep operating under its 2012 plan, which the Ninth Circuit Court of Appeals had declared a failure to meet requirements for the “least practicable adverse impact.” (Read the opinion.)

The agency chose to move ahead because the court had not yet issued its mandate — a formal direction to a lower court — by the time the letters of authorization were issued.

“The Navy has a robust and practicable monitoring and mitigation program that we believe is very effective in reducing the likelihood of injury,” according to an explanation from NMFS.

Check out Ramona Young-Grindle’s story about this latest finding in yesterday’s Courthouse News, which includes these further comments from Joel:

“We are astonished to see an LOA issued in the wake of the court of appeals’ decision that the LFA (low frequency active sonar) permit is illegal. NMFS is entrusted under federal law to enforce the Marine Mammal Protection Act for the benefit of marine mammals — not for the convenience of the Navy. This capitulation to the Navy’s request to continue ‘business as usual’ under a permit determined by a federal court to be illegal is outrageous.”

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‘War of the Whales’ : A discussion with author Joshua Horwitz

Christopher Dunagan

The title of the book “War of the Whales” comes from the “cultural war” between the Navy, which is primarily interested in national security, and environmental advocates trying to protect whales, according to author Joshua Horwitz.

“You have these two groups that care about the whales but for different reasons,” Josh told me in a telephone interview. “One group is trying to save the whales; the other is trying to get a leg up on the Cold War.”

As I described yesterday in Water Ways, “War of the Whales” is really several stories woven into an exquisitely detailed narrative. I found the biography of Ken Balcomb, who served in the Navy, especially compelling within the full context of the Navy’s involvement with marine mammals.

Horwitz was successful in interviewing retired Navy officers, who explained anti-submarine warfare and put the Navy’s viewpoint into perspective.

“I have a lot of respect for the Navy,” he said. “None of these guys are villains. This is a totally different story from ‘Blackfish.’ The Navy is a lot more complicated.”

While SeaWorld, the subject of Blackfish, and other aquariums exploit marine mammals for commercial purposes, the Navy has our national interest at heart, Josh said, adding that some Navy officials failed to understand the full implications of the harm they were doing.

“They hate to see their reputation sullied as good stewards of the environment,” he noted. “They do care, and it almost tears them up that they have gotten a black eye.”

Through a series of lawsuits, the Navy was forced to confront the effects of its testing and training exercises with sonar, Josh said.

“I think the Navy has come a long way on what they do on ranges on our coasts,” he said. “They are taking the process much more seriously now. But they still aren’t doing that on the foreign ranges.”

As recently as April, a mass stranding of beaked whales was observed during a training exercise involving the U.S., Greek and Israeli navies. Check out a report by Greek Reporter and a blog post by Michael Jasny of Natural Resources Defense Council.

New lawsuits have been filed by NRDC based on potential impacts to marine mammals, as revealed in a series of environmental impact statements dealing with the effects of Navy training.

“I really do feel that it is important to keep the pressure on the Navy and the government on all fronts,” Josh said. “There is a limit to what the courts can do. And there are enough good actors inside the Navy.”

One lawsuit, which Horwitz followed closely in “War of the Whales,” focused on violations of environmental and administrative law — until the Navy pulled out its “national security card.” The U.S. Supreme Court seemed reluctant to put a hard edge on its ruling, thus allowing uncertain security threats to trump potential harm to marine life.

Josh contends that responsible parties from all sides should sit down together and work out reasonable procedures for Navy training. They should include exclusionary zones for the deployment of sonar and live bombing in areas where whales go, at least during times when whales are likely to be there.

More could be done with computer simulations to train Navy personnel, he said. The other armed services are doing much more in terms of simulating and responding to conditions that may be encountered in real life.

“I have heard from well-placed people in the Navy that there is room for vastly increasing the amount of simulation training,” he said.

“We know you can’t land an aircraft on a carrier (with simulation), but if you can reduce the amount of live training, it would be a win for everybody,” he added.

Simulations would not only reduce the impact on the marine ecosystem, it would reduce the Navy’s cost of training, its use of energy and its overall carbon footprint.

One thing is for sure, he said. Government oversight into the Navy’s operations is nothing like the oversight into private business. The National Marine Fisheries Service is so outgunned by the Navy in terms of “political muscle” that the agency is relegated to approving practically anything the Navy wants to do. “I hope that comes through in the book,” he said.

Meanwhile, the Navy has developed the technology that could help quiet commercial ships and reduce the noise and stress on marine life throughout the world, he said.

“The Navy could take the lead and wear the white hat and save the ocean from noise pollution,” Josh told me. “When you mitigate for noise, the pollution goes away. It’s not like plastic pollution that will still be there for a very long time.”

At the start, Horwitz was not sure what kind of story would develop. It began with a meeting with Joel Reynolds, the lead attorney for NRDC. At the time, Josh had just taken his 13-year-old daughter on a whale-watching trip to Baja, Mexico. Like many of us, he got sucked into one whale story after another, and he came to learn about the Navy’s long and complicated relationship with marine mammals.

Horwitz has been involved in the publishing industry since the 1990s. He calls himself a kind of “midwife” for new books, which involves putting writers together with characters who have a great story to tell. He initially planned to “package” the story of the whales by working with a professional journalist, but his wife encouraged him to forge his passion into a book of his own.

Josh had co-written a handful of books in his life, including some children’s books, after he graduated from film school at New York University. But this was the first time he had tackled a project with the breadth and depth of the story that became “War of the Whales.” The project took seven years to research, write and craft into a full-length, hard-bound book. Now, a paperback version is in the works.

During the early part of the project, Josh continued part-time with his publishing business. Over the final two years or so, he devoted his full effort into the writing and follow-up research. To pay the bills, he supplemented his publisher’s advance with money raised through The Ocean Foundation.

By the time the writing was done, several editors who originally expressed interest in the book were no longer in the business, he said. As luck would have it, one interested editor had risen in the ranks to publisher and was able to help him complete the project and get the book into print.

Josh and his wife, Ericka Markman, live in Washington, D.C., with their three daughters, ages 20, 18 and 13.

“War of the Whales” can be ordered from the Center for Whale Research, which gets a share of the proceeds, or visit the book’s webpage, “War of the Whales.”

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‘War of the Whales’ :
My take on the book by Joshua Horwitz

Christopher Dunagan

In the book “War of the Whales,” author Joshua Horwitz reveals, in exquisite detail, how Ken Balcomb played a central role in showing how Navy sonar was killing and injuring whales around the world.

Ken, who we know as the dean of orca research in Puget Sound, has not been alone, of course, in the quest to get the Navy to better protect marine mammals. Horwitz introduces us to a variety of people, each with his or her own interest in saving the whales.

Frankly, I was surprised at how much I learned from the book, given that I have been covering these same issues as a reporter for many years. What really gained my admiration for Horwitz was how he was able to weave scientific and historical aspects of the story into a gripping tale that reads like a detective thriller.

I consider this book to be several stories woven into one. First, there are the personal biographies of two key players in this conflict with the Navy. The lives of Ken Balcomb, of the Center for Whale Research, and Joel Reynolds, of the Natural Resources Defense Council, became intertwined with each other after the NRDC sued the Navy over its use of sonar around whales.

Next, we are given the history of the Navy’s sonar technology, developed to track stealthy submarines. We meet many of the Navy officials involved, including some who became emotionally involved with marine mammals, flipping to the other side, as Horwitz describes it.

The Navy has long controlled much of the research involving marine mammals — the original models for sonar. At times, whales and dolphins were even trained as military combatants, with mixed success.

Last, but not least, we are shown the legal arguments related to environmental law versus the need for national security. As a result, we see how the Navy has become more open today about the risks to whales from its testing and training procedures.

Horwitz paints intimate portraits of many of the characters, especially Balcomb, the biologist, and Reynolds, the lawyer. He sees the pair coming together from different backgrounds and uniting in their effort to protect the whales against the Navy’s single-minded approach to national security.

Joel Reynolds, left, and Ken Balcomb at the Center for Whale Research on San Juan Island, September 2013. Photo by Joshua Horwitz — Joel Reynolds, left, and Ken Balcomb at the Center for Whale Research on San Juan Island, September 2013.
Photo by Joshua Horwitz

“Ken was such an extraordinary character,” Horwitz told me in a telephone interview. “He was a reluctant activist. Activism wasn’t Ken’s thing.”

The story begins in the Bahamas, where Balcomb was doing research when a mass stranding of beaked whales took place, practically at his doorstep. Navy sonar had been suspected of killing whales in other areas of the world, but Balcomb was able to secure fresh tissues — essential evidence to understand how their injuries were caused by sound waves. Balcomb also observed that the Navy was conducting exercises in the Bahamas at the same time, and he made the connection to the dead whales.

From there, other researchers and policy officials became involved, but Balcomb kept pushing to keep the incident from being swept under the rug.

“Ken’s investment was immediate,” Horwitz explained. “One night the Navy just plowed through and decimated this population of whales.”

We learn from the book about Ken’s serendipitous life. As a young biologist, he collected whale lungs for research by going to a commercial whaling station still operating in California. He later signed onto a research crew as a dishwasher, but his skills with a shotgun earned him the lead job of tagging whales.

Balcomb joined the Navy during the Vietnam War and became a pilot. A series of circumstances led him into Fleet Sonar School and the Navy’s highly secretive Sound Surveillance System, or SOSUS. At the same time, his compatriots in graduate school became some of the top marine mammal experts for the Navy and the National Marine Fisheries Service. His later interactions with these folks revealed something about their past and present positions in life.

Horwitz ties all these pieces of the story together in a compelling narrative that kept offering me new and surprising tidbits of information. It took the author seven years to complete the book.

“He kept asking over and over the same questions,” said Ken, somewhat amused when I asked him about it. “I didn’t know if he had confused notes or what.”

Horwitz was seeking an extraordinary level of precision and accuracy, so that his telling of this true and controversial story could not be assailed.

Balcomb said he could find no errors, except for the conscious decision by Horowitz and his editors to describe two overflights by Balcomb in the Bahamas as a single event.

Most surprising of all was the account from Navy officials, whose story about underwater warfare has rarely been told, except perhaps in novels by Tom Clancy and others. Horwitz said active-duty military officials were no help to him, but he got to know retired Admiral Dick Pittenger, who opened doors to other retired officers.

“He (Pittenger) was a total career Navy guy, but he was skeptical about the way the Navy was handling some of these matters,” Horwitz said, noting that the admiral spent days helping him understand anti-submarine warfare.

Pittenger wanted the story told right, and he must have been satisfied with the result, since he offered this comment in promotional materials for the book:

“‘War of the Whales’ is an important book about a major post-Cold War problem: the often conflicting goals of national security and environmental protection. The author presents this very complex and multidimensional story with great clarity.

“I’m certain that no one who has been involved with this issue will agree with everything in this book (I don’t). But the topic is, by its nature, so emotionally charged and controversial that I doubt anyone can read it without a strong personal response. The importance of this book is that it tells the ‘inside’ story to the wide reading public in a compelling way.”

In my mind, Horwitz did a remarkable job of capturing the relevant facts for this complicated story. He then seamlessly joined the pieces together into a coherent and dramatic story — one especially important to those of us living in an area where the Navy maintains a strong presence among an abundance of marine life.

Check back to “Watching Our Water Ways” tomorrow, when I will describe more of Josh Horowitz’s personal views about his book and what he learned along the way.

The book can be ordered from the Center for Whale Research, which gets a share of the proceeds, or visit the book’s webpage, “War of the Whales.”

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