To add muscle and mainstream credibility to his legal team, Reynolds reached out to a partner in the Los Angeles office of a Wall Street law firm, Shearman & Sterling. Like many corporate lawyers in Los Angeles, Richard Kendall was eager to get involved in pro bono cases of personal interest. He was a corporate litigation specialist who didn’t know anything about marine mammal protection. But he was a highly successful trial attorney, with a stable of smart young associates he could lend to the fight. And he had the kind of corner office that broadcast power and success.
Reynolds boned up on the Marine Mammal Protection Act. Originally passed in 1972, it was unique among environmental protection statutes in codifying the “precautionary principle.” In drafting the law, Congress made clear that if there’s any doubt about a potential threat to marine mammals, the dispute should be resolved to the benefit of the animal. Where was the precaution, Reynolds wondered, in the Navy’s selection of such a biologically rich and sensitive marine environment for hundreds of explosives tests?
• • •
Two weeks before the ship shock explosions were scheduled to begin, Kendall invited Fisheries and the Navy to a settlement meeting at the law offices of Shearman & Sterling. Given the high stakes, Reynolds would have welcomed an out-of-court settlement. And if they did end up in court, he wanted the judge to know that they’ d made every effort to negotiate a settlement.
Kendall’s 32nd-floor office had a commanding view west over Century City. On a clear day, you could see all the way to the ocean. Reynolds hoped that Shearman & Sterling’s imposing glass and steel fortress would send a message to the Navy that NRDC wouldn’t be outgunned if the case went to court.
The day of the meeting, a squadron of Navy attorneys, marine mammal experts, and admirals crowded into Kendall’s office. Frank Stone was there from the Navy’s Environmental Readiness Office. Gisiner had worked on the Environmental Assessment but hadn’t traveled west to the settlement meeting. Fisheries sent representatives from its Southwest Office, which had approved the Navy’s permit.
Reynolds hoped his own marine mammal experts would engage the Navy experts in a dialogue that could lead to a safer location for the tests. But the Navy’s contingent was led by Sam Ridgway, one of the founders of the Navy’s Marine Mammal Training Program back in the early sixties. He was old school and didn’t kowtow to civilian whale huggers. An internationally recognized dolphin expert, Ridgway had edited the multivolume Handbook of Marine Mammals, the standard text that every science expert in the room had studied in school—and that included Balcomb’s chapter on Baird’s beaked whales, which Ridgway had invited him to contribute. Ridgway had also been John Hall’s boss back in the late sixties when they trained Navy dolphins together. Marine mammal science was still a very small world in the mid-1990s.
As the meeting progressed, it seemed clear to Reynolds that Hall was reluctant to stand up to his old mentor. Reynolds grew increasingly frustrated with the way everyone was pussyfooting around, waiting for the meeting to end. “We’re wasting time,” he said. “And we don’t have much of it left.”
He stood up, walked over to a large map of the Southern California coastline that hung on the wall, and pointed to the deep water beyond the continental shelf. “All our experts believe it would be much less risky to detonate out here, beyond the animals’ foraging areas on the shelf. Isn’t there some compromise area we can agree to?”
The Navy wouldn’t budge. The admirals insisted that they needed to move ahead with the tests on schedule, in waters near their San Diego base. Ridgway asked, skeptically, if Reynolds’ experts had any “hard data” to support their theory that deep water explosions would pose fewer risks to marine mammals. Reynolds replied that the consensus opinion of his experts was solid enough for him.
Ridgway lifted a large Sierra Club photo book off of Kendall’s coffee table, admiring its heft and colorful cover. “In my consensus opinion,” he said, “this is what the ship shock test will sound like to the whales, dolphins, and sea lions.” He held the book a foot above the oak coffee table and let it drop with a dull thud. “That’s about it.”
Ridgway looked over at the Navy contingent. They rose in unison from their seats. The settlement meeting was over.
• • •
The day after the failed settlement meeting, Reynolds filed a motion for preliminary injunction. US District Judge Stephen Wilson scheduled a half-day hearing. It lasted five days.
Initially, Judge Wilson was skeptical of NRDC’s challenge. The Navy presented a lineup of uniformed officers from the Pacific Fleet who explained how crucial these tests were to ensure the seaworthiness of its vessels and the safety of its sailors. Relocating the tests would cost millions of dollars and delay deployment of the destroyer to the Far East. But as the facts emerged about the diversity of marine life in the sanctuary and the impact of 10,000-pound bombs on the entire ecosystem, Wilson began asking the Navy and Fisheries pointed questions that weren’t addressed in their Environmental Assessments. By the end of the third day, he urged the Navy to work with Fisheries and NRDC to reach an agreement on a different location for the test.
That night, Reynolds fielded phone calls from his own experts, Stewart and Eckert, urging him to reconsider his lawsuit. Yes, they agreed that there were problems with the Navy’s plan, but this was the first time it had ever applied for a permit. Next time, they insisted, the Navy would do a better job. If Reynolds pushed the Navy to the wall, it might retreat from the permitting process altogether. Reynolds assumed his experts were feeling the heat from their ONR sponsors, but he wasn’t prepared to reverse course.
Judge Wilson eventually grew impatient with the Navy’s and Fisheries’ unwillingness to reach a settlement. On the fifth day, he announced that he was prepared to rule. During the recess, the Navy’s lawyer approached Kendall and Reynolds. “We’ll settle,” he said, “but only if we do it before the judge issues his decision.” Reynolds declined the 11th-hour offer, sensing that the tide had turned in his favor.
After the recess, Judge Wilson granted a preliminary injunction and halted the ship shock tests. He ruled that Fisheries and the Navy had “failed in its obligation to protect marine mammals, that it hadn’t prepared a full Environmental Impact Statement, and that it hadn’t investigated all reasonable alternative sites and properly mitigated the impact of detonations on marine life.”3
The Navy immediately filed an appeal. But in the meantime they were prohibited from proceeding with the ship shock tests. That’s when the general counsel to the Secretary of the Navy, Steven Honigman, decided it was time to intervene.
Honigman had been a Navy JAG attorney and corporate lawyer before President Clinton appointed him general counsel to the Navy. Like Danzig, Honigman had been a Yale Law School classmate of the Clintons, and he was on the same page as the president about the challenge facing the armed forces following the end of the Cold War. If the Navy wanted to maintain its expensive bases and fleets of battleships and submarines, it would have to serve the public interest—and that included protecting the environment. Transparency and accountability were the new bywords, and they were here to stay. During Honigman’s tenure, the Navy had stopped dumping garbage and toxic waste at sea. Ship shock threatened to erase its improved image as a good steward of the ocean environment.
Honigman had a broader perspective than the Department of Justice and Navy JAG attorneys who’ d tried the case and now wanted to appeal the injunction. He understood that the peacetime battlefront extended beyond the oceans, to the courtroom and to the court of public opinion. Losing an appeal of the ship shock case in a higher court would undermine the veneer of invincibility that the Navy, and every fighting force, works tirelessly to cultivate. He wanted the Navy to stay out of court and start taking the Fisheries permitting process seriously. When legal challenges emerged, he would reach out to reasonable parties on the other side to find compromises the Navy could abide. At least NRDC was staffed by lawyers who spoke a langu
age Honigman could understand.
Within a few days, Honigman had negotiated a settlement with Reynolds and Kendall. The five-year permit for 280 detonations was withdrawn. After three days of aerial surveillance for marine mammals in areas selected by the Navy and by NRDC, Fisheries opted for NRDC’s proposed deep-water location as the lowest-risk site.
On June 10, 1994, 85 miles southwest of Point Mugu, California, a Navy tugboat towed a 10,000-pound charge to within a hundred feet of the guided-missile destroyer John Paul Jones. The bomb detonated at a depth of 200 feet, and the John Paul Jones withstood the blast. But the aftershocks of NRDC’s lawsuit resounded through the fleet for more than a decade.
12
Beachside Necropsy
DAY 6: MARCH 20, 2000
Sandy Point, Abaco Island, the Bahamas
To judge by the gaiety, a passerby might have mistaken the necropsy under way outside Ken and Diane’s house for a festive beach party. But instead of conch fritters and beer lining the wooden picnic table, it was groaning under the weight of a defrosting Cuvier’s head, which was quickly attracting flies.
Much to Balcomb’s relief, Alan Bater and Ruth Ewing had stayed behind in Grand Bahama. The Earthlings were in attendance, but they hung back at a respectful distance while Darlene Ketten prepared to conduct her master class in ear anatomy and head dissection. Dave Ellifrit videotaped the proceedings.
Everyone was in exceptionally high spirits, especially Balcomb. The world’s leading expert in beaked whale hearing was about to give a tutorial using his specimen. Ketten seemed equally elated. It seemed as if every time she rushed to a beaked whale stranding, she was disappointed to find badly decayed remains. She’ d certainly never seen anything as fresh as the two heads Ken and Diane had collected. Earlier that morning, they’ d decided to dissect the jawbone and the ears from the Cuvier’s and leave the Blainville’s intact for CT scanning and necropsy back in the States.
Wearing a white smock over her shorts and T-shirt, Ketten flexed her fingers underneath latex gloves and circled the picnic bench in her bare feet, appraising the head from every angle. She asked Balcomb some polite questions about his photo-ID work, which he was pleased to answer. Then she shifted her questioning to the condition of the whale head, which she determined had finally thawed out enough for dissection.
“As you can see, this guy was hit pretty bad by sharks,” Balcomb explained. “My guess is he was alive and bleeding when they started to attack, which is why there was so little blood inside when we found him.”
“Was there any blood coming out the pinna?” she asked, referring to the vestigial cetacean ear holes, no longer used for hearing. “Or the eyes?”
“No blood from the eyes or ear holes. The eyes were bubbling a little bit. But it was postmortem fluid, mostly, probably juicy from pressure.”
“Remarkably fresh specimen. Really extraordinary.” Ketten assessed the head with the discerning appreciation that Balcomb remembered seeing on the faces of tuna merchants at Tokyo fish auctions. She selected a green-handled scalpel from her kit and excised a blubber sample from the back of the head. “See how white and smooth this blubber is?” she asked, displaying the specimen for the Earthlings. “You can see the collagen running in white strips, here. That’s what makes it so resilient.”
After securing the blubber in a plastic sample bag, she selected an entry point at the back of the jawbone. “The acoustic fats along the jawbone are a very different story, as you’ll see.” She cut a clean slice all the way down the rostrum. “Look at what we’ve got here. An entirely intact lobe of acoustic fats along the length of the auditory canal! I need a picture of this. Dave, come get a close-up. This is so cool! I’ve never seen this before. Low-density fats in the auditory canal! Ken, this turned out better than I had dared to hope.”
Balcomb was blushing under his salt-and-pepper beard. “You really have Dave to thank for this head.” He motioned to Ellifrit behind the video camera. “I’ d never have been able to get it off the beach without his help.”
Ketten carefully finished resecting the acoustic fat lobe and presented it for all to admire. It was the size and shape of a large salmon fillet but the color of pale ivory. She held up the lobe to her own jaw and moved her head in a lunging motion to mime how beaked whales use the acoustic fats like a receiving antenna for incoming sound waves. “We humans have an internal air cavity to conduct sound from the air to our eardrum,” she told the Earthlings. “But whales use these acoustic fats, which are almost precisely matched to the density of salt water. They create a low-impedance channel that conducts the incoming sound straight up the jawbone to the ear bone.”
Once the specimen was safely triple-bagged and tagged, Ketten shifted her attention to the ears. “Ordinarily, this would all be greenish and putrefied,” she said as she exposed the tissue covering the ear bone. “But see, it looks like teriyaki. Still dark red with myoglobin,” she said, referring to the iron-rich protein. “I can’t wait to see the ear.”
When she got close to the tympanic bone, Ketten motioned the Earthlings to come closer. “Look here, where you can see the stapes tucked in behind the bulla. The stapes is the smallest bone in the body, and it’s connected to the largest proportional muscle, the stapedial ligament, which they use to attenuate sound. These animals can put out two hundred twenty decibels at the source, but they can shut down their own receivers before they make that noise. When they know a loud sound is coming, they can turn down the volume, the same way you’ d turn down a hearing aid. The problems happen when they don’t have time to turn down the volume before a loud sound arrives.”
Switching to a flat blade, Ketten slowly, carefully wedged the tympanic bulla free from the ligaments. It was the size and shape of a small conch shell in her hand. “Look at that. This turned out great. A beautiful job,” she said, in matter-of-fact appreciation of her own work.
Diane Ketten dissecting the ears from a Cuvier’s whale head on Abaco Island, March 20, 2000.
Ear bone extracted from a Cuvier’s beaked whale, Abaco Island, March 20, 2000.
Everyone crowded in to admire the ear bone. “This is beautiful,” said Ketten as she rotated the bone in her hand. “Look: this auditory nerve is in perfect shape. It’s gorgeous! I love it. The facial nerve is good too; it’s huge because there are so many jaw muscles to control. Look at that condition of that nerve—fabulous.”
Then her smile gave way to a frown. “Hmm . . . There are two things I don’t like about the way this ear looks. The round window is filled with blood. So is the cochlear aqueduct.”
An hour later, Ketten had removed the second ear, injected it with formalin, and submerged each ear in a carefully labeled jar of fixative. She was eager to get the Cuvier’s head back to the freezer at Nancy’s Restaurant, so they swatted away the flies and wrapped it carefully in plastic garbage bags. Then, under Ketten’s watchful gaze, Balcomb stowed the formalin jars holding the ear bones in a locked filing cabinet in his office.
Ketten wanted to escort the head back to storage. After inspecting Les’ bait freezer, she was satisfied that the specimens were being kept at a constant temperature. But she was unhappy with the fact that it didn’t have a lock. After they’ d replaced the head, she wrapped the freezer lid with yellow tamper-evident tape and signed and dated the chain-of-custody form. She explained to Balcomb and Claridge that they needed to sign and date the same form when they removed the specimens for transport to Boston. She expressed optimism that Fisheries could clear the import paperwork within a week or ten days.
“I want these two heads up at my lab at Harvard, where we can get a better look at them inside the scanner,” said Ketten. “The dolphin too. Then we’ll take them down to Woods Hole for a proper necropsy.”
Though he didn’t want to spoil the collegial mood, Balcomb needed explicit reassurance from Ketten that he and Claridge would be included in the ongoing investigation after they delivered the heads. And as a lifelong collector of be
aked whale skulls, he wanted to get the heads back from Fisheries once the final necropsies had been completed. Ketten agreed to his conditions.
They had time for a late lunch before Ketten’s flight. She was highly complimentary of the conch salad Les served them on his back porch, comparing it favorably to the octopus she’ d recently enjoyed in Greece.
“You’ve done good work,” said Ketten, raising her Kalik beer bottle toward Balcomb and Claridge. “I can’t tell you how often I get on a plane to Timbuktu and come back with nothing to show for it. This has been a rare pleasure.”
“To the ‘volunteers’ who brought you here,” Balcomb toasted. They clinked their three bottles together as one.
MARCH 20, 2000
Navy Office of Environmental Readiness, Alexandria, Virginia
It had only taken 48 hours from its first reports for the story to go national. Admiral Baucom stared glumly at the clippings that bulged out of his Early Bird briefing file. Dozens of papers across the country had picked up a full-length Associated Press article connecting the Navy to the Bahamas stranding. Meanwhile, the headline of the article in the Washington Post read: “Whales Became Stranded After U.S. Naval Exercises; Bahamas Incidents Drawing Scrutiny.”
The Navy public affairs office, in concert with a cluster of internal lawyers, had crafted an artfully ambiguous response to the incident. Reading the AP article, Admiral Baucom wasn’t altogether sure what to make of the Navy statement. It seemed to acknowledge that ONR was conducting research on the north side of Abaco Island—while at the same time insisting that it couldn’t possibly be related to the stranding. Frank Stone and the Navy JAG attorney assigned to N-45 stood behind Baucom’s desk, reading over his shoulder.
War of the Whales: A True Story Page 15
