Free Declaration in Support - District Court of California - California

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RONALD J. TENPAS Acting Assistant Attorney General Environment and Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE JEAN E. WILLIAMS, Chief KRISTEN L. GUSTAFSON, Senior Trial Attorney Wildlife and Marine Resources Section GUILLERMO MONTERO, Trial Attorney Natural Resources Section Environment & Natural Resources Division UNITED STATES DEPARTMENT OF JUSTICE Benjamin Franklin Station - P.O. Box 7369/ P.O. Box 663 Washington, D.C. 20044 (202) 305-0211 (tel.) / (202) 305-0443 (tel.) (202) 305-0275 (fax)/ (202) 305-0274 (fax) [email protected] [email protected] Counsel for Federal Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NATURAL RESOURCES DEFENSE COUNCIL, ) INC., et al., ) ) Plaintiffs, ) Civ. Action No. 07-4771-EDL ) v. ) ) DECLARATION OF CARLOS M. GUTIERREZ, SECRETARY OF ) DORIAN S. HOUSER, PH.D. THE UNITED STATES DEPARTMENT OF ) COMMERCE, et al. ) ) Defendants. ) )

DECLARATION OF DORIAN S. HOUSER Case No. CV 07-04771 EDL

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I, DORIAN S. HOUSER, declare that the following is true and correct to the best of my knowledge: 1. I graduated summa cum laude from Coker College in 1992 with a Bachelor of

Arts degree, with honors, in Biology. I subsequently earned a Doctor of Philosophy degree in Biology from the University of California, Santa Cruz in 1998. 2. From 1998 until 2001, I was a National Research Council Post-Doctoral Fellow at

the Navy Marine Mammal Program in San Diego, California. 3. I presently hold two academic positions: Associate Adjunct Professor of Biology

at Sonoma State University, Rohnert Park, California, and Adjunct Professor of Psychology at the University of Southern Mississippi, Hattiesburg, Mississippi. I have held the position at Sonoma State University since 2001 and the position at the University of Southern Mississippi since 2002. 4. I own and operate BIOMIMETICA, a consulting firm located in Santee,

California, where I consult on the study and modeling of biological systems. Through BIOMIMETICA, I work on a contractual basis for the United States Navy Marine Mammal Program, where I have become familiar with the Mid-Frequency Active (MFA) sonar employed by the United States Navy and the issues related to its potential effect on marine mammals. My experience includes: 1) involvement with the development and review of numerous United States Navy environmental impact statements and environmental assessments that deal with the use of MFA sonar, including ones developed for exercises around the Hawaiian Islands; 2) involvement in research that specifically addresses mechanisms by which sound may induce physiological changes in marine mammals; 3) study of auditory processes and bioacoustics in marine mammals; and 4) involvement with stranding network reviews of strandings putatively related to sonar exposure.
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5.

I have received several important awards for my work with marine mammals and

bioacoustics. From the Acoustical Society of America, the largest international society of professional acousticians, I received the "R. Bruce Lindsay Award" (2007) for outstanding contributions to the field of acoustics. From the Strategic Environmental Research and Development Program (SERDP), which is the Department of Defense's environmental science and technology program, I received a team "Project of the Year" award (2000) for contributions to the development of dolphin and great whale auditory system models. 6. My research focuses on marine mammal physiology and bioacoustics. My past

and current research efforts include: a. Development and application of electrophysiological methods for studying

marine mammal hearing. b. Development of marine mammal dive and behavior models for use in

environmental impact assessment. c. Studies of dolphin anatomy and physiology via structural and functional medical

imaging techniques (e.g. CT, PET, MRI). d. Determining the presence of and potential for nitrogen bubble formation in

dolphins resulting from repetitive diving. e. f. Assessing behavioral and physiological impacts of sound on marine mammals. Determining physiological adaptations that allow phocid (earless) seals to fast for

months without food or water. g. h. i. j. Developing computer models of dolphin and whale auditory systems. Investigation of dolphin biosonar control and echolocation search strategies. Investigations of the foraging ecology of the phocids and otariids (eared seals). Investigations of how different species of zooplankton utilize estuarine waters

over time and respond to changing water conditions. I have written over 40 peer-reviewed scientific publications and book chapters, DECLARATION OF DORIAN S. HOUSER 3
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many of which address marine mammals and acoustics. At the request of the National Marine Fisheries Service, United States Navy, and NATO Alliance, I have participated as a panelist or advisor in a number of working groups, including: a. The Workshop on Acoustic Resonance as a Source of Tissue Trauma in

Cetaceans (April 24-25, 2002, Silver Springs, MD). This workshop investigated potential mechanisms related to the stranding of beaked whales in the Bahamas in 2000. b. The scientific committee on anthropogenic impacts to beaked whales (Beaked

Whale Workshop, April 13-16, 2004, Baltimore, MD). This follow-on meeting to the Acoustic Resonance workshop focused on an increased number of hypotheses related to beaked whale strandings in relation to SONAR operations, as well as a recommendation list for future research. c. (2005, 2007). d. The committee for standardization of stranded marine mammal necropsy The NATO sponsored conferences of the Effects of Sound on Marine Mammals

procedures (September, 2006, Woods Hole, MA). This committee was responsible for developing recommended necropsy procedures to determine the frequency that traumas noted in beaked whale strandings occurred in other marine mammals or in other non-SONAR related events, as well as the potential for artifacts to be introduced during necropsy procedures which might lead to faulty conclusions regarding the cause of stranding. 8. 9. My curriculum vita is attached to this declaration as Exhibit A. I have been asked to comment on the SURTASS LFA sonar (LFA sonar) and its

potential to affect marine mammals. In preparation for this declaration, I reviewed the declarations of Robin Baird, Linda Weilgart, Natacha Aguilar De Soto, and Ken Balcomb written in support of the Plaintiffs' motion for a preliminary injunction.

Unqualified Comparisons between LFA and Mid-Frequency Active (MFA) Sonar I am concerned that instances of marine mammal stranding putatively associated DECLARATION OF DORIAN S. HOUSER 4
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with MFA sonar activities are extrapolated to LFA sonar without appropriate qualification. The differences in frequency between the two types of sonar (LFA approximately 100-500 Hz; MFA approximately 3000 Hz) are important because of the differences in the hearing sensitivity of different species of marine mammals. Hearing sensitivity is important to estimating the potential for behavioral harassment in marine mammals; the lower the sensitivity to a particular frequency of sound, the greater the level of the received sound that will need to be present prior to detection and possible reaction. Furthermore, it should noted that even though there have been associations with MFA sonar activity and beaked whale strandings, there have been no linkages between LFA sonar activity and any whale stranding.

The Claim that Marine Mammals Die at Sea as a Result of Sonar Operations but are not Observed 11. To my knowledge, the statement that impacts to marine mammals exposed to

LFA Sonar are underestimated because most marine mammals sink upon death (Baird Declaration, para.12, Weilgart Declaration, para. 9) is not supported by empirical evidence or literature that documents the occurrence of floating versus sinking among deceased whales soon after death. Most whales will sink; but how long after death before sinking occurs is largely unknown. As a matter of physics, the probability and time required for a whale at the surface to sink after death will depend on the buoyancy of the animal as dictated by its oil stores (blubber and bone oil), the volume of residual air in the lungs at death, and the time necessary for the residual air volume to dissipate. Personally, I have encountered freshly shot sea lions floating at sea (presumably shot by fishermen) and have observed recently killed elephant seals bobbing in near-shore water. Recently, off the coast of California, three blue whales were repeatedly observed floating at sea, one of which was identified as a recent death because of its physical condition. There is merit to the notion that animals that die at depth do not float to the DECLARATION OF DORIAN S. HOUSER 5
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surface because of hydrostatic pressure, i.e. the pressure of a fluid on a body within the fluid. The deeper an animal dives, the greater the hydrostatic pressure, and the more likely that pressure will overcome buoyancy. As noted in paragraph 10, animals are also more likely to sink if they are emaciated and do not have a robust blubber layer. However, the fact that 30% of the beaked whales analyzed following the Canary Islands stranding event (2002) were found floating at sea (Fernández et al. 2005) suggests that because an animal is a deep diver does not mean it will sink to the bottom of the ocean after death.

The Claim that Sonar Exposure Caused Beaked Whales to Strand in the Canary Islands in 2004 13. The Declaration of Natacha Aguilar De Soto (para. 7) states that a 12 nm (22.2

km) buffer from shore for LFA sonar use is insufficient to prevent the risk of mortality in beaked whales because ship tracks reported for the Bahamas 2000 and Canary Islands 2004 strandings show that the sonars were operated well beyond that distance from shore. Four beaked whales stranded in the Canary Islands in 2004, near to the time that NATO exercises (Majestic Eagle) were performed nearly 200 km away. Dr. Aguilar De Soto asserts a relationship between the stranding and the sonar activity based upon the finding of hemorrhagic symptoms and decompression pathologies that were consistent with those found in the Canaries in 2002 and the Bahamas in 2000. 14. However, assuming the NATO vessels were in deep water (greater than 1000 m,

which is a reasonable assumption based on the bathymetry of the area in which Majestic Eagle occurred), and that whales were near the steep slopes associated with the archipelago, the weakening of any produced sonar signal from 200 km away would be substantial. As sound moves away from its source, it weakens as the area it travels through increases. As long as the sound is unbounded (i.e. the sound can travel the same distance laterally as it does vertically), then it weakens according to "spherical spreading loss." The initial attenuation of sound at 1000 DECLARATION OF DORIAN S. HOUSER 6
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m would be approximately 60 dB due to spherical spreading loss. Beyond this point, attenuation can be modeled with "cylindrical spreading loss," which yields an additional attenuation of approximately 53 dB. In addition, sound loses energy through its conversion to heat as it travels through water. This process, called absorption, accounts for an approximately 0.3 dB weakening of a 3 kHz signal per 1000 yds traveled. Accounting for the conversion from yards to meters, the weakening of the signal over 200 km is approximately 66 dB due to absorption. Thus, the total attenuation of the sound source at this distance would be approximately 179 dB. Assuming a sonar source level of 235 dB re: 1 Pa, the received level of the sonar at 200 km would be approximately 56 dB re: 1 Pa. This level of sound would be near or below the background noise of the ocean and would be just perceptible if not undetectable, even if the beaked whales were several miles off-shore of the archipelago. 15. Given the improbability that beaked whales near the slopes of the archipelago

could receive any significant level of exposure from a sonar signal generated at a 200 km distance, the pathological findings of the beaked whales that stranded in the Canary Islands in 2004 might not necessarily indicate trauma related to sonar exposure. On the contrary, if there is merit to the various hypotheses related to fat emboli formation in these animals, then other causative factors, potentially natural ones, should be considered. 16. The beaked whales mentioned were found nearly 1 week after the completion of

Majestic Eagle operations, and could hypothetically have floated to the archipelago from some point closer to those activities. However, it should be noted that the four beaked whales were autolytic (decomposed) to the point that no macroscopic findings could be recorded. The primary indicator of a severe decompression event is the presence of nitrogen bubbles (gas emboli) in blood vessels and tissues. Existence of these bubbles cannot be determined once decomposition occurs since the process causes the breakdown of tissue and the formation of gas. The conclusion that the traumas are related to a sonar-induced decompression event is primarily based on the finding of fat emboli. Fat emboli have been observed in cases of acute decompression sickness; DECLARATION OF DORIAN S. HOUSER 7
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however, fat emboli are not in and of themselves diagnostic of decompression sickness.

Sensitization in Marine Mammals 17. Sensitization is a process in which animals become more reactive to a stimulus

because it is either aversive or it is associated with another aversive stimulus. Desensitization is the reverse process in which a stimulus is learned to be inconsequential and/or tolerable. The work of T. Götz and V. Janik is used as the basis for describing sensitization in eight captive seals [Weilgart Declaration, para. 6; (Götz and Janik, 2007)]. This study could be important in understanding the response of marine mammals to rapid onset noise; however, there are a number of caveats that should accompany any interpretation of this work. As a conference presentation, and therefore not having undergone peer-review, the work requires vetting by experts in acoustics and animal behavior to ensure that the methodology employed was suitable and that the interpretation of the results take into consideration the methodological limitations of the study. 18. The study surmises that lack of a startle response at the maximum exposure level

of 180 dB re: 1 Pa in three seals is due to hearing loss in these animals. The only way to determine whether an animal has hearing loss is to perform a hearing test. To conclude that hearing loss is responsible for this lack of response in the absence of having conducted baseline hearing tests disregards the possibility that the animals simply did not perceive the sound as either threatening or startling. This is not an unreasonable conclusion based on the fact that sensitization/desensitization is subject to much individual variability. Furthermore, three out of eight animals having hearing loss is a high percentage of hearing loss for a group of animals presumably randomly drawn from a population. Also, 250-2000 Hz is a fairly broadband signal in the low frequency range of hearing. Hearing loss typically occurs at the higher frequencies, with lower frequency sensitivity preserved, except in instances of profound hearing loss. It is also unlikely that any of the exposures could have resulted in temporary or permanent hearing DECLARATION OF DORIAN S. HOUSER 8
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loss, as prior testing with pinnipeds has demonstrated that the duration and amplitude of signals used in this study are insufficient to produce temporary or permanent threshold shifts (Finneran et al., 2003; Kastak et al., 2005). 19. An important factor to consider in the observed behavioral reaction to sound in

the Götz and Janik (2007) study is that seals have an acute underwater localization ability (Bodson et al., 2006). The seals in the study were likely not only responding to the stimulus, but also to the proximity of the stimulus to them. Contextually, the seals may have responded as much to the fact that the sound source was within the region of the haul-out site (a region where groups of seals come to shore), or in the pool with them, as they did to the stimulus itself. This is an important consideration since a sound source at some distance is likely perceived in a different context than one that is close. Because of the differences between context and proximity to the sound source in this study and those potentially resulting from LFA sonar operations, the observations in this study and their relevance to LFA sonar operations are questionable.

Beaked Whale Sensitivity to Low Frequency Sound 20. The hearing organs have evolved to be the most sensitive organ to sound. The

less sensitive an organism is to a particular frequency of sound, the less likely it is to perceive and respond to the sound. Ken Balcomb's Declaration (para.12) argues that the Navy's use of hearing criteria to establish susceptibility to low-frequency sound as part of the selection of study species for the Low Frequency Sound (LFS) Scientific Research Program was flawed because it did not take into account induced behaviors in beaked whales. However, the Navy's hearing criteria are consistent with what is known about beaked whale hearing (Cook et al., 2006) and hearing in odontocetes (toothed whales) as a group (Richardson et al., 1995; Nachtigall et al., 2000; Supin et al., 2001), and whether beaked whale hearing is sensitive or insensitive to low frequency sound is relevant to whether exposure to SURTASS LFA sonar is DECLARATION OF DORIAN S. HOUSER 9
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likely or unlikely to produce a behavioral reaction in beaked whales. This includes any behavioral reaction that might result in a non-auditory injury. Thus, the LFS Scientific Research Program, which was designed to study the potential behavioral impacts on marine mammals of LFA sonar use, appropriately focused on large baleen whales because they presumably have the greatest hearing sensitivity to low frequency sounds in the 100-500 Hz range. 21. Odontocete hearing covers a wide frequency range and can exceed 150 kHz. It

encompasses frequencies predominantly used in communication (e.g. whistles), which are in the lower end of the hearing range, and those predominantly used in echolocation, which comprise the upper range of hearing. Of the more than 13 species of odontocete for which audiometric information has been obtained, a general pattern of hearing sensitivity can be determined. The frequency of best hearing is greater than 10 kHz and sensitivity worsens as frequency decreases below 10 kHz. The LFA source operates between 100 and 500 Hz. Sensitivity at these frequencies is 40-80 dB less sensitive than at the frequencies of greatest sensitivity. 22. To date, the hearing sensitivity of a single beaked whale has been tested (Cook et

al., 2006). Although absolute sensitivity could not be determined for the animal, a relative pattern in sensitivity as a function of frequency was determined. Like other odontocetes, the beaked whale's hearing was observed to be most sensitive at higher frequencies and a reduction in hearing sensitivity with declining frequency was observed. Extrapolation of the sensitivity curve to 100 to 500 Hz also suggests that the magnitude of difference between sensitivity at these frequencies and the region of best sensitivity is consistent with that observed in other odontocetes. Thus, it is reasonable to assume that these animals are relatively insensitive to frequencies ranging from 100 to 500 Hz. 23. Mr. Balcomb's argument that the LFS Scientific Research Program failed to

account for induced behaviors that alter normal dive decompression and lead to non-auditory trauma, also relies on a hypothetical mechanism of tissue damage in beaked whales. The traumas noted in the stranding of beaked whales in the Bahamas (2000) and Canary Islands (2002) ­ DECLARATION OF DORIAN S. HOUSER 10
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References Bodson, A., Miersch, L., Mauck, B., and Dehnhardt, G. (2006). "Underwater auditory localization by a swimming harbor seal (Phoca vitulina)," J. Acoust. Soc. Am. 120, 1550­1557. Cook, M. L. H., Varela, R. A., Goldstein, J. D., McCulloch, S. D., Bossart, G. D., Finneran, J. J., Houser, D., and Mann, D. A. (2006). "Beaked whale auditory evoked potential hearing measurements," J. Comp. Physiol. A 192, 489-495. Finneran, J. J., Dear, R., Carder, D. A., and Ridgway, S. H. (2003). "Auditory and behavioral responses of California sea lions (Zalophus californianus) to single underwater impulses from an arc-gap transducer," J. Acoust. Soc. Am. 114, 1667-1677. Götz, T., and Janik, V. M. (2007). "The acoustic startle response in phocids: An initiator of extreme behavioural responses to anthropogenic noise," in Effects of Noise on Aquatic Life (Nyborg, Denmark). Kastak, D., Southall, B. L., Schusterman, R. J., and Kastak, C. R. (2005). "Underwater temporary threshold shift in pinnipeds: effects of noise level and duration," J. Acoust. Soc. Am. 118, 3154-3163. Nachtigall, P. E., Lemonds, D. W., and Roitblat, H. L. (2000). "Psychoacoustic studies of dolphin and whale hearing," in Hearing by Whales and Dolphins, edited by W. W. L. Au, A. N. Popper, and R. R. Fay (Springer, New York, NY), pp. 330-363. Richardson, W. J., Greene, C. R., Jr., Malme, C. I., and Thomson, D. H. (1995). Marine Mammals and Noise (Academic Press, New York). Supin, A. J., Popov, V. V., and Mass, A. M. (2001). The Sensory Physiology of Aquatic Mammals (Kluwer Academic Publishers, Boston).

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