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War of the Whales
A True Story
The paths of the world’s most powerful navy and the ocean’s deepest-diving whales collided on March 15, 2000, when veteran whale researcher Ken Balcomb witnessed a mass whale stranding that left its victims dying helplessly from a mysterious unknown cause on the shores of the Bahamas. That heartrending event led to an epic legal battle—with Balcomb and environmental lawyer Joel Reynolds on one side and the U.S. Navy on the other—that went all the way to the U.S. Supreme Court. Along the way, the Navy conceded for the first time that its sonar war games had driven whales onto beaches, and agreed to comply with federal environmental laws intended to protect whales and other marine animals.
The product of seven years of research and writing, WAR OF THE WHALES: A True Story (Simon & Schuster; July 1, 2014; $28.00 U.S./$32.00 CAN) is a riveting, wide-ranging, and masterly account of this landmark showdown in courtrooms and the court of public opinion. Author Joshua Horwitz takes readers onto the beaches and the research vessels, into the labs and the courtrooms, behind closed doors at Pentagon strategy sessions, and into the thick of the debate over how to balance the requirements of national security with safeguarding the ocean environment. At the center of his vivid tale are two courageous and sometimes conflicted agents of social change —one a maverick, one an consummate insider —who put their personal and professional lives on the line in order to hold the Navy accountable for the survival of the sea’s most majestic and beloved creatures.
A reluctant whistle-blower and a lone gunslinger
Ken Balcomb was an unlikely and reluctant whistle-blower. As a young man, he had done two tours of duty in the Navy, working with sonar in submarine detection, and had taken an oath of secrecy. Fascinated by marine mammals, he later became a leading authority on the relatively unknown beaked whales, species that inhabit the world’s deep underwater canyons, as well as orcas, or killer whales. Balcomb was loyal to the Navy and recognized the need for a robust national defense, but believed that it could be achieved without flooding the oceans with whale-killing sonar. As Horwitz explains, whales and their smaller dolphin relatives depend on their own extraordinarily sophisticated forms of bio sonar for navigation, hunting, and courtship. An ocean flooded with manmade noise – from shipping, oil exploration, and military sonar – can make it difficult for whales to forage, communicate, and even survive. As the saying among marine scientists goes, a deaf whale is a dead whale.
Joel Reynolds, a superb litigator with a passion for environmental justice, had already made a name for himself as an attorney for the Natural Resources Defense Council (NRDC). Staffed with legal gunslingers like Reynolds, NRDC was one of the groups that had made environmental law sexy in the 1980s by suing corporate polluters on behalf of its members. In 1994, Reynolds had won a lawsuit against the Navy for its use of underwater explosions in marine sanctuaries, which violated marine mammal protection laws. When he uncovered evidence of a secret Navy sonar system, he suspected that it was linked to a rash of mass whale strandings around the world but lacked a trail of physical evidence to support a lawsuit. Perhaps, he hoped, that trail might begin in the Bahamas.
The war begins
Horwitz follows the dramatic unfolding of this tale from Day 1 of the Bahamas stranding, where Balcomb, his fellow whale researcher and then-wife, Diane Claridge, and their volunteer helpers tried to rescue the stranded whales. The next day, in search of forensic evidence, they had to wrestle the whales’ remains away from sharks, sever their heads, and stow them in a friend’s restaurant freezer. Weeks later, only the last-minute intervention of a friendly Redcap at the Miami airport (whose daughter was a marine biology student) enabled Balcomb and Claridge to fly the frozen heads safely to Boston. There, Darlene Ketten, the world’s foremost whale forensic pathologist and expert on whale hearing, examined the heads in her lab at Harvard. The CT scans revealed pools of blood from brain hemorrhages, though Ketten was reluctant to speculate on the cause.
But Ken Balcomb needed no further convincing. He had photographed Navy destroyers in Bahamian waters during the days following the strandings, and knew from personal experience that these warships were equipped with high-powered sonar transmitters. Soon—much to the displeasure of Ketten and others in the scientific establishment and their Navy patrons —Balcomb was standing in front of the cameras on 60 Minutes and at a press conference in Washington, D.C. Backed up by dramatic and disturbing video footage he had recorded during the Bahamas strandings, he stated, “I believe the Navy did it.” Balcomb’s claim was soon bolstered by a groundbreaking study published by Jim Mead, the eminent curator of marine mammals at the Smithsonian, which documented the historical connection between naval exercises around the world and beaked whale strandings.
Meanwhile, Joel Reynolds pursued a relentless pressure campaign, backed up by the threat of litigation, with lawyers from the Navy, the National Marine Fisheries Service, and the Justice Department. Top naval officers like Rear Admiral Dick Pittenger were charged with protecting America and its ships and sailors from attack by undetected enemy submarines. Understandably, they had a different point of view than the Navy’s civilian leadership, who grasped the political necessity of trying to find some accommodation with Reynolds and the wider Save the Whales movement, which had grown into a mass coalition of whale and dolphin lovers, ocean conservationists, and animal rights activists.
Horwitz writes of this culture war over whales: “It defied the admirals’ comprehension that they had to kowtow to a roomful of lawyers and regulators. They had built and trained the most powerful Navy in the history of maritime warfare, had outlasted the fearsome Soviet armada during a four-decade Cold War, and now they were being called to account because a dozen whales had stranded during a training exercise?”
But in order to retain its hard-earned Cold War sonar assets the peacetime Navy had to promote itself as a good steward of the environment – in part, by ingeniously retrofitting its sound surveillance systems to measure climate change in the ocean. However, two years after 9-11, in the most patriotic, pro-military political climate since WWII, NRDC and Balcomb won a major courtroom victory, forcing the Navy to drastically curtail the planned deployment of its LFA (Low Frequency Active) sonar system that would have flooded most of the world’s oceans with high-decibel sound.
Taking the fight to the Supreme Court
In response, the Navy turned to Congress and the executive branch for sweeping national security exemptions from a host of federal environmental laws, including the Marine Mammal Protection Act. In the meantime, evidence of the damage to whales from military sonar continued to mount. In 2003, Balcomb witnessed another mass stranding, this time of pilot whales on San Juan Island in Washington State, where he regularly spent his summers monitoring the endangered killer whales of Puget Sound. Balcomb videotaped a pod of orcas in extreme distress in close proximity of a U.S. Navy destroyer, which only ceased transmitting high-decibel sonar after the Coast Guard intervened at Balcomb’s request. In another major victory for Reynolds and the NRDC, a federal judge ordered the Navy to negotiate a settlement over the use of sonar in training exercises that drastically restricted its zones of operation off the West Coast.
After losing again in the Court of Appeals, the Navy asked the White House to intervene, turning the fight over the use of military sonar into a constitutional confrontation over the separation of powers. When an executive order signed by President Bush was struck down by the courts, the Navy asked the Supreme Court to grant the case a hearing, which the Court agreed to do. In November of 2008, just weeks after Barack Obama’s election, the Roberts Court ruled, by a closely divided vote, that the national security concerns of the Navy admirals should trump the requirements of federal laws protecting whales. However, the Court did uphold many of the specific restrictions sonar trainings that the lower court had placed on the Navy.
A new level of national discussion and accountability
While Reynolds and his allies had suffered a legal setback, litigating the sonar case in front of the Supreme Court had elevated the topic to a level of national discussion that would have been unimaginable even a few years earlier. Reynolds felt confident that they were slowly but surely reining in the Navy’s use of whale-killing sonar in training exercises. They needed to keep pushing for better safeguards, but the Navy’s obligation to comply with federal environmental laws was no longer in dispute.
Furthermore, in the years since the Supreme Court decision, consensus has built inside the research community—including among many of the Navy’s own researchers—about the threat that noise pollution, including military and commercial sonar, poses to whales. In particular, research has revealed that much lower sound levels than previously believed cause changes to migration patterns as well as foraging and communications habits. Most importantly to endangered cetacean species, research has also shown that chronic noise pollution depresses their rates of reproduction.
The mass strandings—and the war—continue
Meanwhile, whales continue to mass-strand around the world in the presence of military and commercial sonar. In 2008, sixty dolphins stranded in Cornwall, England, during sonar exercises being conducted by the Royal Navy and the U.S. Navy. That same year, more than one hundred melon-headed whales were driven ashore in Madagascar by sonar being used to explore for oil and gas by the ExxonMobil Corporation. In 2011, at least ten and possibly dozens of beaked whales stranded or washed ashore dead on the Greek island of Corfu following a major Italian military exercise nearby. And in April of 2014, during joint exercise among U.S., Israeli, and Greek navies offshore from Crete, five beaked whales stranded and died.
In 2012, the U.S. Navy filed for permits to expand its sonar training ranges up and down the East and West coasts – including new testing ranges for mines, torpedoes, and other underwater explosive devices. The Navy’s own Environmental Impact Statements predicted millions of marine mammal “takes,” or exposures to these tests, including nearly a thousand deaths and 13,000 serious injuries. In December, 2013, Fisheries granted the Navy its requested permits. Within a month, in separate lawsuits, NRDC and Earthjustice, along with half a dozen co-plaintiffs, sued the Navy and Fisheries for violations of the Marine Mammal Protection Act, the Endangered Species Act, and the Coastal Zone Management Act.
A major new work of narrative non-fiction, WAR OF THE WHALES is at once an enthralling piece of natural history, a gripping David-and-Goliath legal battle, an eye-opening chronicle of secret Cold War military activity, an environmental call to arms, and a probing examination of the conflicting demands of the environment, the law, and national defense.
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ABOUT THE AUTHOR:
Joshua Horwitz is the co-founder and publisher of Living Planet Books in Washington, D.C., which specializes in books by thought leaders in science, medicine, and psychology. The co-author of two previous books of nonfiction, he lives with his wife and three daughters in Washington, DC.
ABOUT THE BOOK:
WAR OF THE WHALES: A True Story
By Joshua Horwitz
Published by Simon & Schuster
Publication Date: July 1, 2014
E-Book ISBN: 9781451645033
Learn More about Joshua Horwitz at www.WaroftheWhales.com
Visit Simon & Schuster on the web at www.simonandschuster.com
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