Free Declaration in Support - District Court of California - California

Case 3:07-cv-04771-EDL

Document 71

Filed 11/15/2007

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RONALD J. TENPAS Acting Assistanl Attorney General Enviromnent and Natural Resources Division UNITED STATES DEPARTM ENT OF JU STICE JEAN E WILLIAMS, Chief KRISTEN L GUSTAFSON, Senior Trial Attorney Wildlife and Marine Resources Section GUtLLERMO MONTERO. Trial Attorney Natural Resources Section Environment & Natural Resourcexs Division UNITED STATES DEPARTMENT OF JUSTICE Benjamin Franklin Station - P,O. Box 7369/P.O. Box 663 Washington, D.C, 20044 (2021 305-0211 (tel.) / (202,) 305~0443 (tel.) (202) 305-0275 (fax~/(202') 305-0274 (fax)
Kristen.Gustafson@ usdoj.gov

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Guillermo. Montero @ usdoj .gov
Counsel for Federal l)efendants UNrFED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION NATURAL RESOURCES DEF-~NSE COUNCIL. INC.. et al.. Civ, Action No. 07-477 t-EDL

DECLARATION OF CARLOS/vl. GUTIERREZ. SECRETARY OF REAR ADMIRAL THE UN~D STATES DEPARTMENT OF JOHN M. BIRD, U.S. NAVY COMMERCE. et al.

Defendants.

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m DECLARATION OF REAR ADlVlIRAL JOHN M. BIRD. USN Ca~ No. CV 074)477 ! EDL

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1. Rear Admiral John M, Bird, do hereby declare as follows:

1. INTRODUCTION AND QUALIFICATIONS 1. I gn~duated fi'om the United States Naval Academy in 1977 with a Bachelor of

degree in Mechanical Engineering. Subsequently, I earned a Masters of Science deg
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Engineering Management t)?om Catholic University of America. I have also complete

Massachusetts Institute of Technology Seminar XXI in Foreign Affairs. Internation

and National Security, an educational program for senior military officers, gove and business executives in the national security policy community+

2.

Upon graduating f?o:m the U.S. Naval Academy. | began a career as a submarine

in the U.S. Navy. Among my operational assignments. I have served on both fast at

ballistic missile submarines in both the Pacific and Atlantic Fltmts. Some of my

assignments have included service on: USS Seahorse (SSN 669). an attack submari

Simon Bolivar ~SSBN 641 ~, a fleet ballistic missile submarine; USS Sea Devil {S

attack submarine: and USS Tunny ~SSN 682), also an attack submarine. My mos~ recent. submm'ine assignment was on the USS Scranton (SSN756~+ an attack submarine, where !

as the Commanding Officer ,and was awm~ded the Naval Submarine League's Jack Darbv A

lBr Inspirational Leadership .and Excellence in Command. While I was Commanding O US~ Scran.l~: n also earned the Subm~ine Squadron Six Battle Efficiency "+E" award~

consecutive years in ]994 and 1995. From August 1999 to April 2001. I commanded

Squadron EIGHT (SUBRON EIGHT~ which included eight fast attack submarines station

Norfolk, Virginia. SUBRON EIGItT exercises operational control over its fast atta

submarines, a function which encompasses responsibility lbr tactica+ and operatio

The Battle Efficiency "+E"" is awarded annually to the snmll number of IJ.S+ submarines, aviation and other units that win their battle efficiency competitio the Battle Efficiency Award is the overall readiness of the command to cmTy om it wartime tasks, and is based o.n a year-long evaluation. The competition for the a always+ been keen. To win. a ship or unit must demonstrate the highest state of ba
2 DECLARATION OF REAR ADMIRAL JOHN M. BIRD. USN Case No, CV 07-(M77t EDL

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for war. inspection and monitoring, nuclear and radiological safety, and developme of submmne operating schedules.

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3.

Staff assignments I have held staff assignments as Special Assistant (Legisla

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to the Chie.f of Naval Personneh Principa Assistant in the Office of Deputy Chief

Operations tbr Undersea Warfare (Readiness and Tactics); Joint Chiet~ of Staff Di

for Central. South and Soutl~east Asia: Assistant Deputy Director for Political-Mi

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Asia.. also on the Joint Chic-is of Staff; and Director ()perations and Plans, Log ~ Engineering, United Sates Joint Forces Command

4.

From September 2005 to December 2006. I served as the Commander of Submari

Group SEVEN tSUBGRU SEVENL where i served ~,~ N~th Commander. Task Force SEVEN

FOUR2 and Commander Task Force FIVE FOUR:~ in Yokosuka. in that ro~e, SUBGRU SEV

was responsible for ,suppomng operations in lhe Western Pacific and assumed admini

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Submarine Group SEVEN is comprised of submarines deployed to the Western Pa three submarines homeported in Guam. and a permanently forward deployed submarine The depioyed submarines are totaled from their homeports in Bremenon. Washington, Diego, California and Pearl Harbor. Hawaii for approximately six months. The te ported out of Guam. Additkmally, Submarine Group SEVEN has a representative in liaisons for supply, logistics and repmr support tot all submarines assigned m Co Force SEVEN FOUR. Commander Submarine Force Seventh Flem coordinates and contro submarine activities over a vast expanse covering nearly forty-eight percent of th surface_ ranging from the Western Pacific to the Indian Ocean. Commander Task For FOUR as Seventh Fleet's submarine movement advisory authority and owrational comm directs all submarine operations and ~nission taskir~g requirements in the Seventh responsibility. Commander "]['~k Force SEVEN FOUR is also responsible for stuff b reprovisiomng and repairs for those submarines operating in Seventh Fleet.

Submarine Group SEVEN was aclivated as Commander Task Force ONE FIVE SEVE on t5 October 1992 to direct all submarine operations and mission tasking require Central Command area of responsibility, including the Red Sea and Arabian Gulf. 1995. upon establishmenl of U.S. Fifth Fleet in that same area of responsibility Task Force ONE FIVE SEVEN was redes~gnated as Commander Task Force FIVE FOI IR. 3
I)ECLARATION OF REAR ADMIRAl. JOHN M, BIRD. USN Case No. CV 07-(N771 EDI.

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control over deployed subrnarines and tenders, reporting to Commander. Submarine F Pacific.

5.

In December 21)06. I reported to U.S, Pacific Fleet. Pearl Harbor. Hawaii m ass

duties a~s Deputy Cormmander and Chief of' St~aff and continue to hold that responsib
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6.

I have an intimate understanding and knowledge of Anti-Submarine Warfare (ASW

tactics. Through my pas~ and present assigmnents, l am very familiar wifl~ the use

Surveillance Towed Array Sensor System l.ow Frequency Active sonar {SURTASS LFA) an the harm that will result m national security if the Navy is prevented from using

for routine training, testing, and operational missions 1 have gained this under

my extensive absea experience on attack and missile submarines, my operational ass

directly relating to ASW, and my staff assignments that were pnmanly focused on ~md

warlSire, joint (among services) warfighting capabilities, and lbreign political-

7, I have reviewed the unclassified declarations of Vice Admiral Nathman, Vice Wiltard, Rear Admiral Padgett and Joseph Johnson that the Government submitted in

litigation in this Court regarding SURTASS LFA, NRDC, et atl v. E~,ans, et aL, Cir.

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3805 EDL. t agree with everything they have said about the critical need for SURTA

and the criticN need to be able to test and train with it in a variety of conditio need has only increased since those declarations were submitted in 2002-2003.

iI. THE QUIET SUBMARINL THREAT

ASW is the Commander of the Pacific Fleel's (COMPACFLT) #1 warfighting prior Submarines zkre owmted by numerous navies, including potential adversalies in the and Middle East areas. U.S, Navv~ strike groups,, are constantly deployed to
4 DECLARATION OF REAR ADMIRAL JOHN M. BIRD, USN Cm~e No. CV 0%CN771 EDL

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areas. Today's modern, qu:let diese[-e|ectric submarines operated by navies acro

pose the primary threat to the U.S. Navy's ability to perform a number of critical

missions. These missions include being able to access and operate in waters near s
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strategic maritime chokepointsL transit international straits, and protect sea li communication~ supporting international commerce.

9.

Potential adversary nations are investing heavitv in submarine techno|ogy,

designs for nuclear attack submarines, strategic bNlistic missile submarines, and

submarines. Over 40 countries have operational modem submarines, or are pt~mning t

to their naval forces. There are a total of 470 submarines owned by 40 countries-

(392) or being built (78), Of these. 257 are diesel submarines--their combinati operation and effective weapons gives them a substantial and multifaceted combat

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Diesel-electric submarines equipped with advanced propulsion systems an

exterior coatings can covertly operate in the coastal and open ocean areas, possib

Navy access to combat zones and making U.S. vessels vulnerable to torpedo attacks.

identifying, locating, tracking and~ if necessary, holding~ diesel-electric subm

important to the U.S. Navy's', ability m conducl operations and accomplish its mi

A chokepoint is a strategic strait or canal which could be closed or blocked traffic, There are approximately 200 s~raiis ~narrow bodies of water connecting tw of water) or canals arotmd the world but only a handful are known as chokepoints.

Sea Lines of Communication refers m primary maritime romes between ports, use trade, logistics and naval forces. One of the primary functions of the U.S. Navv i prompt and sustained comba~r ol~ra~ions at sea, This includes protecting vital sea communication.

"Holding" a submarine means to deny enemy submarines an offensive capabili maintaining the ability to destroy them, if and when required.
5 DECLARATION OF REAR ADMIRAL JOHN M. BIRD. USN Case No. CV 07-0477t EDL

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Modem diesel-ele, ztric submarines are designed to supp,ess mnitted nois~

~peeifically to counter and defea| the best available passive sonar lechnoJogv. Pas involves listening for sounds emitted hy a potentially hostile submarine in order

localize and track it. As submarines become q memr through improved s~mnd dampenin technology, the usefulness ecl: passive sonar systems has great ly diminished. Umit

ranges, a diesel-electric submarine operating on battery power zs nearly undetecta
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allied naval forces using passive sonar alone.

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The Rassian Federation and the People's Republic of China hay e publicly

the submm'ine is the singte most potent ship in their fleets and the cenlerpiece of

navies. Published naval strategies of poteniia~ adversaries_ including lran and Nor
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expressed similar strategic doctrine, As regional Asian economies recover fi'om l

fSnancial crisis, established powers and smaller nations are planning m build or bu
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capable new submarines. "It~e competition threatens m sNft the power balance among

the region's long-standing military rivals and poses a potential ~hreat ~o ke) trad

I3.

China. Taiwan. India. Pakistan. Singapore, Malaysia, South Kor~ Japan a

are taking delivery or have ordered advanced, steg~lthy submarines armed with state-

missiles and torpedoes capable of striking targets at sea or on ] and f'tr from the

2fR?4 promotion of Admiral Zhang Ding fa. a cm-eer submariner, m Chief of Staff o

People's Liberation Army Navy (PLAN} and a full seat on the CentrN Military Comm

a clear signal o| the primacy of submarine warfare in China's stra~eg~ for the A

tTkacik, 2006J, In February 2(g)5. Secretary of Defense Donald RumsIeld comtnent

size of the Chinese fleet could surpass the U,S. Navy's within a decade. Their ne

and Yuan-class diesel-electric submarines will be mcue lethal when armed wiih Ru

("SquMl"~) to~does~ which public tetx~rTs state can reach 200 kno~s {230 mph) underwa

e~ DECLAR AT1ON OF REAR ADMIRAL JOHN M BIRD. USN Case N~. CV 07414771 EDI_

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There ~e reports that the SKVAL ~s, heady operational on some Chinese submarines 2006),

14. Com~tifion between China and India for maritime influence has keyed Indi

boost its submarine fbrce with i7 new acquisitions over the next decade. Singapor

has recently reached four Swedish~built dieset submarines. Malaysia has ordered two

built conventional submarines expected to be operational in 2007 and 2~8. With Si

Malaysia in the submarine market, ThNland is now considering its underwater optio

explained in the Navy's Supplemental Environmental Impact Stamment, when all the

submarines come into selwice, Asia's key waterways could again become as cmwded~a dangerons~below the surfime as they were at the height of the Cold War when U.S. submarines hunted each other on a regular basis.

15. The destruction of U.S, Carrier Strike Groups (CSGs) and Expeditionary' S

(ESGs) is the focal point in ILhe naval warfare doctrine of many non-aligned nati

generally consist of six ships: an Aimraft Carrier and five surface combatant shi of Cruisers, Destroyers and Frigams). In total, nearly 6,0(~d sailors are in the

a CSG. CSGs must be able to conduct operations from near-shore to open ocean, depe the mission (e.g., combat strike operations using the 48-60 aimraft onboard the

able to operate safely in such an environment r~uires the CSG's ASW commander, a

officer (CAPTAIN) that is embarked on the Aircraq't Carrier, to coordinate the pro

of the CSG against a number of opposition fc, rce submarines inmnt on either sinki or driving it from the areas in which it must operate.

16. ESGs generally consist of three surface combatant ships, as well as a num

amphibious ships, such as an Amphibious Assault ship, Transport Dock ship, and Doc

ship, all of which carry U,S. Marine, a~d the means to transport them ashore fi)r 7 DECLARATION OF REAR ADMIRAL JOHN M. BIRD, USN Case No, CV 074)477 { EDL

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landings. ESGs must transit through areas contested by submarines and may be requi 2

conduct amphibious missions within sight of land or "'over the horizon" t?om land.

must be accomplished while also engaging opposition submarines and negotiating mi 4 5 6 7 8 t 7.

all of which require constam attention and coordination by the ESG's ASW commande

A single diesel-electric submarine ~hat is capable of peneIrating U,S. o

force defenses could cause catastrophic damage to those forces, and jeopardize the

thousands of Sailor and Marines onboard our ships. Even the threal of {he presence

I 0 diesel submarine could ef|~ctiveIy deny or delay U.S, or coatidon naval ti~rces ac 11 operational areas. As demonstrated in both World Wars, submarines inflicl damages

f2 merchant and military shipping. Compared to the period of World War IL the U,S. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 19. 1II, THE CONTINUED AVAILABITLITY OF SURTASS LFA IS CRITICAL TO ¯ " NEC1 NA'I IONAL ~ , IR1TY ItS. dependent on imports from !he sea, making the mission of ~he U.S. Navy to protecl of communication even more critical now than i1[ has been in the pas~.

As an operational commander, it is my responsibility m know the locatio

hostile subm~ines thai pose a threat to U.S. and allied ibrces, SURTASS LFA rema

effective and best available iechnology m detect these quiet submarines m long-ran

they can ge~ close enough to use their weapons. The conti~med availability of SURT

critical m the undersea surveillance capability necessary to locate and track thes

SURTASS LFA ~s presently onboard Iwo vessels, currently conducting operati

northwestern Pacific. The Navv inlends to increase the number of these ASW essent

platforms to a Iotal of four over the next five >ears, Only two or three systems

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DEf21,ARATI'ON fIF REAR ADMIRAL JOHN M. BIRD. USN Case No. CV 0%04771 EDI.

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{)pc.rat ional through September 2010. with the tx~tential liar four vessels Eo be op thereafter.

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The Navy is obligated to provide the best available protection for our fo

submarine threaLs described above. SURTASS LFA has substantially in,creased this pr

through its ability to detect quieter and harder-toqind foreign submarines at lo

and testing by actually using SURTASS LFA with Fleet units---and against real submari is

critical m the formulation of viable ASW |actics, SURTASS LFA sonar has linen use

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great success over the last five years, but complex sonar skills are highly perish

Navy must test and m~in continuously in order to maintain them, In addition, it i

the Navy be able to test and train with SURTASS LFA in various ocean environments

in limited deep-water areas, as the topography of the ocean bottom and other envir

characteristics dramatically affect system operation. In a real-world situation. N

operators need to know how to operate SURTASS LFA effectiveIv in whatever environm

they may find themselves. As stated by the Vice Chief of Naval Operations in 2002.

operational cc~mmander can employ a system, of any type. wi~h confidence that it is combat unless the personnel using the system have trained to use ~t and have used

of realistic situations.'" SURTASS LFA is a critical t(ml in the execution of Sev

plans and operations. The continued unintclTupted operation of SURTASS LFA is a h priority in this most challen gi~g wattare area.

21. As demonstrated in my classified d~taration in ~his case, the Navy knows t

areas where it must be able to use SURTASS LFA sonar as close as 12 nm fi'ont the s

that system performance varies by area, and given that the Navy cannot predict wit

over the full five-year period of the Final Rule where and when it may need to use

isimpracticable to atiempt to tailor site-specific coastal exclusion zones t2~r a

the Final Rule. Likewise, the difficulty of predicting where threats may occur c
9 DECLARATION OF REAR ADMIRAL JOHN M. BIRD, 'S N U, Ca,';e No. CV 074)4?71 EDL

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of a discriminating approach to Me designation of those offshore biologically impo

~OBIAs"~ where the use of SURTASS LFA sonar is excluded, since it is not diffict~tt to m~ag

how placing large areas of 1he ~xzean off limits m the sonar's use could have a neg the effectiveness of training, ms~ing, and militar3 opera~ions.

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As addressed in my classified declaration in ~his case. the Navy provided

Marine Fisheries Service (NMFS 1 with information identifying me need to be able

SURTASS LFA sonar immediately following expiration of the prior authorization on

2007. This information indicated how a gap in SURTASS I~FA sonar ~pera{ions wouId po|entially be detrimental to national security.

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IV, CONCI.~I[JSI{)N

23.

While no ma|-world military action is risk4"ree, the Department of Defen

Departmen! of the Navy have demonstrated tha~ they are committed to the stewardshi

environmem and ~he seas. The environmental issues have been thoroughly examined ov
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past ten years through com~rehensive and unprecedented sc enteric research pro8 ram

detailed analysis processes m accordance with applicable environmenta~ laws and re

As a result, the Navv and the National Marine Fisheries Service (NMFS ~ have deter with appropriam mitigation measures. SURTASS LFA is and wilt continue to be used

effectively, and in compliance wi~h applicable en mmmental laws. During the las

accordance wilh NMFS regularions' monitoring and repo~ing reqmrements, the Navy h

documented any observed impacls of rising S URTASS LFA m the northwestern Pacific

and reported t.hese findings ~o NMFS. In five years of sonar operation, there has b

reporte~J harm to the marine environmem and most notably, nc~ known inim) to marin mammals.

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Ht DECLARATION ( ~F REAR ADMfRAL JOHN M. BIRD. USN Ca~ No. CV {}7-{ ~477t EDI,

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24.

SL RTASS LFA haa~ enabled the Navy to meet the clearly defined, real-world

security need Ibr improved ASW capability by ailowing Navy Fleet units to reliably 3 4 5
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quieter and harder-to-find submarines at tong hinge, before they ge~ within their

weapons range and can launch missites or torpedoes against our ships or missiles a

targets, foreign or domestic. The operative word here is ha. s, SURTASS LFA is a c

system, But in order to protect U.S. and allied fleet assets, and merchal~t shippin

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of SURTASS LVA sonar and the training of our wrsonnel must continue tminrerrupted.

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Without the continued operaiion of SURTASS LFA. both in the open ocean and

near-shore areas where U.S. Naval forces must. operate, our Navy cannot effecti,eel

charter tk3r protectmn of U.S. and coalition naval fk)rces From the possibility of ho

submarines using m~pedoes,, missiles, and mines m target our militate" personnel an civilians. We must conlinue m counter these real submarine threats.

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Pursuant to 28 U.S.C. §1746. l decl~e under penalty of perjury under the laws

United States of America tllat the foregoing is l:rt~e and correct to the best of m intormation and belie|.

Executed ~.~n the 13m day. of November. ~*earl [tarbor, Hawaii 2O 2! 22 2q 24 25 26 27

/oil. Bird
U.S. Navy Deputy Commander. United States Pacific Flee{

fI DECLARATION t)F REAR ADMIRAL I()HN M. BIRD. [JSN Case No. CV 117-04771 EDL