War of the Whales: A True Story

by Joshua Horwitz

  It wasn’t his nature to second-guess himself, but Reynolds still held his breath until the newspapers reported on the settlement. To his relief, the press credited the agreement as a major environmental victory.

  FEBRUARY 12, 2007

  Los Angeles

  It soon became clear to Reynolds that contesting midfrequency sonar was going to be a war of attrition, fought in successive Navy ranges around the country and, eventually, around the world. Six months after winning an injunction and sonar safeguards in Hawaii, NRDC faced another midfrequency battle closer to home. The Navy announced 14 major training exercises over a two-year period in the waters off the Southern California coast, including sonar training in and around the Channel Islands National Marine Sanctuary. According to the Navy’s own Environmental Assessment, these exercises would result in a “take,” or harassment, of 170,000 marine mammals from 30 species, including five species of endangered whales.

  The California Coastal Commission informed the Navy of safeguards it would require. When the Navy challenged the commission’s jurisdiction and proceeded without those safeguards, NRDC, its co-plaintiffs,2 and the Coastal Commission sued the Navy to block the Southern California exercises. Because the Navy’s two-year national security exemption from the Marine Mammal Protection Act was still in force, Reynolds had to rely once again on the National Environmental Policy Act, the Endangered Species Act, and other statutes.

  Once again Judge Cooper ruled that NRDC had established a “near certainty” that the Navy exercises would cause “irreparable harm to the environment.”3 The judge granted a preliminary injunction that prohibited the Navy from training with midfrequency sonar in its Southern California range for the next two years.

  Office of the Chief of Naval Operations, the Pentagon

  Being barred from operating on its Southern California range was a clarifying moment for the fleet commanders. With the Vieques range in Puerto Rico no longer in play, Southern California was the crown jewel of the Navy’s training grounds. It was the only range left where all the right training elements came together: a land-sea staging area with usable airspace; a shore bombardment range; a naval air station right on the coast, which pilots could use as a “bingo field”; and inshore bombing ranges. The Southern California range had it all. And now the environmentalists were trying to take it away and give it to the whales.

  Admiral Mullen had recently been nominated to become chairman of the Joint Chiefs of Staff. Before he moved up and out, he wanted to make sure that his replacement as Chief of Naval Operations, Admiral Gary Roughead, was engaged with Daly on this issue. The three admirals in the room—Mullen, Roughead, and Daly—were of one mind on the subject. They saw the Navy as a giant deployment machine, constantly working up strike groups and deploying them into forward environments. Everyone, including some inside the Navy, felt free to tell the fleet, “Train less. You’re not in a submarine shooting war right now.” But never having commanded ships at sea, they didn’t realize that the most dangerous submarine is the one you don’t yet know about and aren’t prepared to kill. The fleet commanders worried that if they let judges and environmentalists dictate conditions for sonar exercises, they wouldn’t be able to conduct training realistic enough to certify battle groups as ready for deployment.

  The fleet commanders decided they needed to take charge of the Southern California case before the lawyers at Justice and at the Navy’s own Office of Environmental Readiness caused irreparable harm to their environment. For years now, the admirals had watched the government lawyers argue one elegant and losing legal theory after another, each time giving up more and more of the Navy’s autonomy. They’ d lost and settled with NRDC on low frequency. Then they’ d lost and settled on the midfrequency sonar exercises in Hawaii. Now they’ d lost another midfrequency case in the Pacific Fleet’s home base of Southern California. The time had come for the folks at Justice and Environmental Readiness to step back and let the fleet make the case for midfrequency sonar on the firmest ground it still held: national security.

  What the judges and politicians didn’t seem to grasp—perhaps, believed the admirals, because it hadn’t been presented to them in plain English—was that without experienced sonar operators who had trained rigorously at sea, American servicemen and servicewomen would likely die in a contested threat environment. To maintain antisubmarine warfare proficiency you need to conduct realistic training in conditions that replicate the threat environment. You never know where you’ll have to operate. But if you’re not trained and ready to fight in every environment—even in places where whales live—your sailors will be directly in the path of an incoming torpedo or submarine-launched-missile attack.

  What crystalized the Navy’s dilemma in Daly’s mind was hearing a senator tell the Secretary of the Navy, “I am worried about the possibility that any whale may be harmed or killed in the course of Navy sonar training.” At no point did she express any concern for the men and women on ships who could die if they weren’t properly trained in antisubmarine warfare.

  • • •

  Judge Cooper had directed the Navy and NRDC to try to reach a settlement for trainings in the Southern California range. Admiral Roughead sent Daly out to Los Angeles to replace Environmental Readiness as the lead in those settlement meetings. It soon became evident to Reynolds that Daly had little interest in settling. Reynolds knew that the Navy had appealed Judge Cooper’s injunction to the Ninth Circuit Court of Appeals. What Reynolds didn’t know was that the admirals were already planning to outflank the judiciary and go straight to the executive branch for help.

  Throughout the autumn of 2007, the Southern California case bumped back and forth between the court of appeals and the district court. First an emergency motions panel of the court of appeals lifted the injunction; then a different panel reinstated it but sent the case back to Judge Cooper, instructing her to “tailor” her injunction to allow the training to proceed, subject to whatever safeguards she imposed. Just before New Year’s, Judge Cooper toured a sonar-equipped destroyer in San Diego to observe the safeguards that the Navy had already adopted. Then, in the first week of January 2008, she issued a revised injunction, which the Navy once again appealed to the Ninth Circuit Court of Appeals.

  The admirals assumed that the liberal Ninth Circuit would uphold Judge Cooper’s injunction—which it eventually did. But the commanders had decided not to subordinate their military authority to a civilian judge who knew nothing about the training requirements for antisubmarine warfare. If they couldn’t make their case in a federal courtroom, the admirals assumed they’ d find a more receptive hearing at the White House.

  • • •

  During all of the pinballing of the Southern California sonar case between the trial and appellate court levels that fall, Reynolds was enduring another, more personal trial. In September he’ d taken his mother to the doctor to assess her failing memory. He was surprised when she received a diagnosis of acute anemia, which progressed to leukemia by October. She was clearly on a steep downward slope, so the family decided to move her to stay with Reynolds’ sister, Ellen, in Madison, Wisconsin, where the children and grandchildren spread across both coasts could visit.

  While work on the Southern California case progressed, Reynolds flew back and forth to Wisconsin to be with his mother and the extended family that had gathered there. He edited briefs in the airport, and on the plane rides, and after his mother and everyone else in the house had gone to sleep. He brought each of his children for a final visit with his mother, ferrying them between Los Angeles and Madison. He’ d just returned to Los Angeles with his youngest daughter one night in early December when he learned by phone that his mother was fading fast. He caught the next flight back to Madison, but she died before he got to see her again.

  DECEMBER 17, 2007

  West Wing of the White House

  Admiral Daly made sure that the key decision makers from all the relevant agencies were assembled for t
he White House strategy meeting: Navy lawyers from Environmental Readiness, the Judge Advocate General, and the Navy general counsel; the leadership and lawyers from Fisheries; and the senior staff and attorneys at the parent agencies, NOAA and the US Department of Commerce.

  They had all convened on the weekend before Christmas to convince the Council on Environmental Quality, a White House advisory group with offices across the street at Jackson Place, to intervene on the Navy’s behalf. Though it was rarely invoked, the Navy lawyers had identified an obscure provision in regulations enacted under the National Environmental Policy Act that might allow the CEQ to suggest “alternative arrangements” to a full Environmental Impact Statement. The roomful of government lawyers worked through the weekend to craft a credible legal rationale for the White House agency to supersede the courts’ authority in deciding that the Navy had failed to comply with federal environmental law.

  At the same time, another team of Navy lawyers was working with the White House general counsel on a parallel strategy: asking the president to issue an executive order exempting the Navy from compliance with other federal statutes. On Monday morning, the Secretary of Defense and the Secretary of the Navy delivered their request to the president. They asked that he sign a letter, for the first time, invoking his authority under the Coastal Zone Management Act to exempt the Navy from compliance, in the interest of national security.

  President Bush signed the exemption letter the same day that the Council on Environmental Quality issued its alternative arrangements to allow the Navy to proceed with its Southern California sonar exercises regardless of the court’s decision. With the stroke of two pens, the president and his White House environmental advisor elevated a dispute over a preliminary injunction to a constitutional confrontation over the separation of powers between the executive and judicial branches of government.

  NRDC promptly opposed the Navy’s actions, arguing that both the president’s exemption and the council’s alternative arrangements should be dismissed as unlawful attempts by the executive branch to trump a federal court’s right of judicial review.

  Two weeks later, Judge Cooper ruled for NRDC, rejecting on a litany of legal grounds the White House’s attempted end run around the judiciary. The Department of Justice immediately appealed her ruling to the Ninth Circuit, telling the court of appeals that for reasons of national security and readiness, the Navy needed a decision within a week. The appeals court pushed back, telling the Justice Department and the Navy that they couldn’t dictate the court’s schedule.

  On February 29, two days after a hearing in its Pasadena courtroom, the court of appeals issued a 110-page decision upholding Judge Cooper’s preliminary injunction and rejecting both White House waivers. However, the court of appeals waited to impose the injunction to give the government the opportunity to petition the US Supreme Court.

  • • •

  The decision whether or not to appeal to the Supreme Court was a difficult call for the Justice Department and the Navy. If the Supreme Court ruled against them, they’ d have no recourse in the courts, no leverage in any settlement negotiations, and no way to save face with the media. Despite its power and privilege at sea, on Capitol Hill, and in the courts, the Navy leadership cared deeply about public opinion. They disliked being perceived as bullies or as bad stewards of the environment. Most of all, they hated being seen as losers in face-offs against environmental activists.

  Back at Woods Hole, Retired Admiral Dick Pittenger worried that appealing to the Supreme Court could prove disastrous. He thought that the Navy was in denial about its dismal track record in the courts. Every judge to date, in multiple sonar cases, had agreed with NRDC’s arguments that the Navy’s sonar training protocols violated federal environmental laws. Even the industrial manufacturers of naval sonar seemed intimidated by Reynolds. It hadn’t escaped Pittenger’s notice that not one of the sonar companies had raised a voice in defense of the Navy or of their own technology—a silence he attributed to their fear that they might become the next target of an NRDC lawsuit.

  The Navy needed to wake up to the fact that every time it got knocked down in court, it gave up another piece of whatever moral high ground it still held in the public’s esteem. He was as concerned as any other admiral about the need to train for combat missions in real-world conditions. But the courtroom had proven to be NRDC’s winning battleground, not the Navy’s. It would be much more prudent, he told his fraternity of retired admirals and anyone who would listen in the secretariat, for Secretary Winter to sit down with Reynolds and hammer out an agreement the Navy could live with.

  Admiral Pittenger’s view was not shared by the fleet commanders. The admirals in charge weren’t interested in settling with NRDC. They believed that the conservative Supreme Court offered them their best chance to finally prevail. After all was said and done, they were warriors who planned for victory, not negotiated terms of surrender.

  On the last day of February, the Department of Justice filed the Navy’s request for the US Supreme Court to hear the case.

  • • •

  No one knew whether or not the Supreme Court would agree to hear the government’s appeal. Of the more than 7,000 petitions for hearing that the US Supreme Court receives each year, it grants fewer than 100, or less than 2 percent. But Reynolds knew that when the request is made by the solicitor general—the attorney who argues for the federal government before the Supreme Court—the court’s acceptance rate shoots up to 70 percent.

  Even before the solicitor general’s petition was filed on the Navy’s behalf, Reynolds and his team had begun intensive preparation for what they saw as the inevitable battle to come in the Supreme Court. Richard Kendall added more legal talent, recruiting several of his law firm partners with extensive Supreme Court experience—specialists who would look at the case with a fresh eye, propose alternative approaches to the legal issues, and develop the arguments most likely to sway the justices in NRDC’s favor. Work began on a brief opposing the solicitor general’s expected petition for review, and 30 days after the petition was filed, NRDC submitted its brief.

  At 6:00 a.m. on June 24, Reynolds turned on his laptop and logged on to the SCOTUS (Supreme Court of the United States) blog for the real-time announcement of the cases the court had agreed to hear in its upcoming term. He scrolled through the list of petitions pending to where he found the court’s one-word decision on the petition to hear NRDC v. Winter: “Grant.”

  His heart sank. For the Supreme Court to agree to hear a case, four of the nine justices needed to vote yes. Usually, though not always, a vote to hear a case meant that the judges wanted to review the lower court’s decision and might well be inclined to overturn it. So Reynolds understood that even before the arduous months of preparation to come, the solicitor general likely had at least four justices leaning his way, with only a fifth needed to overturn.

  After riding a five-year wave of courtroom victories against Navy sonar, Reynolds feared that the tide was beginning to turn.

  28

  The Highest Court in the Land

  Ever since he was a young lawyer, Joel Reynolds had a compulsion for over-preparation that revealed itself in a recurrent anxiety dream. The setting, progression, and outcome of the dream were always the same. It was his Supreme Bad Dream.

  The nightmare begins en route to court. Whether or not the traffic-clogged streets resemble Washington, DC, he knows right away that it’s the Supreme Court he’s trying to get to—and he’s running late.

  When he finally arrives, he recognizes the courthouse by its neoclassical design, the 16 Corinthian columns guarding the doorway beneath the inscription: “Equal Justice Under Law.” But everything’s warped. The wide flight of marble steps leading to the doorway feel soft and spongy underfoot, and no matter how quickly he tries to climb them, they seem to propel him backward as if on a down escalator.

  Suddenly, against all laws of gravity and physics, he’s standing inside the chambers, face
-to-face with the nine black-robed judges arrayed like phantoms behind the raised mahogany bench. His oral argument is about to begin.

  The green light flicks on, signaling the start of his allotted time. But when Reynolds looks down to consult his notes, he realizes to his horror that they’re blank. He rifles through his briefcase but finds only blank pages inside. That’s when he realizes he’s not dressed for court. No tie, no white shirt, and no suit!

  Reynolds had, in fact, once argued a real-life nightmare in front of the Supreme Court, preparing relentlessly for weeks and in vain to find the elusive arguments—any argument—that might salvage his client’s prospects in the high court. Back in the 1980s, he’ d represented the community living near the Stringfellow Acid Pits, a huge toxic waste dump outside his hometown of Riverside, California. Two dozen corporations and the US Air Force had been dumping toxic waste at the site for years, ultimately contaminating the groundwater aquifer beneath the site. Reynolds first lost the case but then won a reversal from the court of appeals. When the polluters convinced the Supreme Court to review that decision, Reynolds lost 9–0.

  The funny thing was, his Supreme Bad Dreams had begun years before the Stringfellow case and persisted for decades afterward.

  Reynolds at a UC Riverside Distinguished Alumni Award ceremony, spring 2007.