Free Declaration in Support - District Court of California - California

Case 3:07-cv-04771-EDL

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ROBERT FALK (SBN 142007) ROBIN S. STAFFORD (SBN 200950) SARAH SCHINDLER (SBN 236414) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: [email protected] Email: [email protected] Email: [email protected] JOEL R. REYNOLDS (SBN 85276) CARA HOROWITZ (SBN 220701) NATURAL RESOURCES DEFENSE COUNCIL, INC. 1314 Second Street Santa Monica, California 90401 Telephone: (310) 434-2300 Facsimile: (310) 434-2399 Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE HUMANE SOCIETY OF THE UNITED STATES; INTERNATIONAL FUND FOR ANIMAL WELFARE; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL Civil Action No. CV 07-4771 EDL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU DECLARATION OF Plaintiffs, HAL WHITEHEAD v. CARLOS M. GUTIERREZ, SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; WILLIAM HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; VICE ADMIRAL CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES DEPARTMENT OF THE NAVY; DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY; ADMIRAL MIKE MULLEN, CHIEF OF NAVAL OPERATIONS Defendants.

DECLARATION OF HAL WHITEHEAD Case No.

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I, HAL WHITEHEAD, declare as follows: 1. This Declaration is submitted in support of Plaintiffs' motion for a preliminary

injunction. The statements contained in this Declaration are true and correct to the best of my knowledge and, in the case of my opinions, I believe them to be true. If called as a witness, I could and would testify to the statements contained herein.

2.

I hold a Ph.D. in Zoology, a Diploma in Mathematical Statistics, and a B.A. in

Pure Mathematics, which were awarded by Cambridge University. For the past fifteen years, I have been employed as a Professor of Biology at Dalhousie University. I have served on scientific committees concerned with the conservation of marine mammals both for the Canadian government and for intergovernmental organizations such as the International Whaling Commission (IWC) and the International Union for the Conservation of Nature (IUCN). 3. I have authored or co-authored over 150 scholarly publications in the field of

marine biology, population ecology, and the use of statistical analysis in biological research. A significant portion of my work as a researcher has been concerned with bioacoustics, primarily with regard to the role that sound plays in the ecology of whales, especially sperm whales and beaked whales. Another major portion of my work has been devoted to population analyses of marine mammals. My curriculum vitae and list of publications are attached. 4. The conclusions I draw and the opinions I express are supported by texts and

research that other experts in my field consider reliable. 5. It remains my expert opinion that deployment of the SURTASS LFA system,

particularly to the extent and in the manner that the Navy has proposed, constitutes a substantial and serious risk to marine life. Indeed, it should be clear on the basis of the available evidence that LFA is likely to have adverse impacts on marine mammal at a population scale. 6. The Navy's dismissal of any potential for cumulative or synergistic effects with

other environmental stressors is without any basis in the literature. There are no studies I know of that have researched this issue in relation to LFA sonar and marine mammal populations. In contrast, there are many studies on other marine or freshwater species that document cumulative and synergistic impacts occurring between stressors such as overfishing, eutrophication, climate
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change, and UV radiation (e.g. Lotze and Worm 2002; Worm et al. 2002),1 and studies on fish populations have demonstrated that failure to account for interactions among stressors can result in significant underestimations of effects (Power 1997).2 Threats such as by-catch, contaminants, and overfishing could all exacerbate the impacts of low-frequency noise on whale populations; indeed, I would be surprised if there were no such negative interactions. 7. The Navy's statement that several noise sources (e.g., mid-frequency and LFA

sonar) could not interact in a negative way because their signal characteristics would be different, and therefore would be unlikely to converge, has no basis in behavioural science. Convergence of signals could well increase the potential for auditory and direct physiological impacts, which depend largely on the amplitude of received sound at given frequencies, but clearly is not necessary for those signals to work synergistically on animal behaviour. The complex sound field generated by different sources of aversive sound may increase the risk of strong responses in marine mammals, particularly as the animal may find it more difficult to escape the sound field. 8. I am deeply concerned about the geographical extent of the authorization.

Outside the east coast of the continental United States, virtually no attempt is made to account for concentrations of animals, or for the limited range of discrete populations, that are known or expected to occur within subareas of the National Marine Fisheries Service's biomes and provinces. Depending on where the LFA system is located within a province, the potential for impacts on marine mammal populations and stocks would vary widely. 9. Relatively little is known about the population biology of beaked whales, but one

genetically distinct population that has been studied in my lab is the northern bottlenose whale (Hyperoodon ampullatus) off Nova Scotia. About 34% of this population can be found, at any

Lotze, H.K., and Worm, B. (2002), "Complex interactions of climatic and ecological controls on macroalgal recruitment," Limnol. Oceanogr. 47: 1734-1741; Worm, B., Lotze, H.K., Hillebrand, H., and Sommer, U. (2002), "Consumer versus resource control of species diversity and ecosystem functioning," Nature (London), 417: 848-851. 2 Power, M. (1997), "Assessing the effects of environmental stressors on fish populations," Aquat. Toxicol. 39: 151-169.
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time, within an ocean area about 25 kilometers across, around the Gully (Gowans et al. 2000),3 and about another 33% in two smaller canyons 50 kilometers and 100 kilometers from the Gully (Wimmer and Whitehead 2004).4 The Gully has been excluded from LFA training activities, but recent genetic and other studies indicate that beaked whale populations may generally be small and discrete (Dalebout et al. 2005; McSweeney et al. 2007).5 Other beaked whale populations that are small and geographically discrete or concentrated, such as populations in several parts of the Mediterranean Sea and around the Hawaiian Islands, would be extremely vulnerable to harm from the LFA system. The Navy's monitoring system, limited as it is, would not detect the physical injury and other impacts that have already been documented in the Bahamas, the Canary Islands, and elsewhere. 10. The Navy has funded research to identify beaked whale "hotspots."6 While it

cannot be assumed that this compilation is exhaustive, many of the areas that have been identified are suitable for offshore exclusion. For example, the waters around New Zealand, which have some of the highest biodiversity of beaked whales in the world, including several species with limited ranges, and the Galapagos Islands are important habitat for beaked whales as well as other cetaceans. Other than the Gully off Nova Scotia, none of these areas to my knowledge have been excluded from LFA sonar training. 11. Many areas with concentrations of marine mammals, high biodiversity, and/or

small and discrete marine mammal populations are identified in the available literature; still Gowans, S., Whitehead H., Arch, J.K., and Hooker, S.K. (2000), "Population size and residency patterns of northern bottlenose whales (Hyperoodon ampullatus) using the Gully, Nova Scotia," J. Cetacean Res. Manage. 2: 201-210. 4 Wimmer, T., and Whitehead, H. (2004), "Movements and distribution of northern bottlenose whales, Hyperoodon ampullatus, on the Scotian Slope and in adjacent waters," Can. J. Zool. 82: 1782-1794. 5 Dalebout, M.L., Robertson, K.M., Frantzis, A., Engelhaupt, D., Mignucci-Giannoni, A.A., Rosario-Delestre, R.J., and Baker, C.S. (2005), "Worldwide structure of mtDNA diversity among Cuvier's beaked whales (Ziphius cavirostris): implications for threatened populations," Mol. Ecol. 14: 3353-3371; McSweeney, D.J., Baird, R.W., and Mahaffy, S.D. (2007), "Site fidelity, associations, and movements of Cuvier's (Ziphius cavirostris) and Blainville's (Mesoplodon densirostris) beaked whales off the Island of Hawai`i," Mar. Mamm. Sci. 23: 666687 6 E.g., MacLeod, C.D., and Mitchell, G. (2006), "Key areas for beaked whales worldwide," J. Cetacean Res. Manage. 7: 309-322.
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others can be identified using survey data. Even when survey data do not exist, there are numerous ways to identify important habitat. For example, the distribution of many marine mammal species and other marine biota are moderately well correlated with primary productivity, a feature for which global data are regularly produced, through satellite observation, by the National Oceanographic and Atmospheric Administration (NOAA); exclusions for the most productive areas would be likely to protect concentrations of numerous marine mammal and other species. Habitat preference models are used in various contexts in marine mammal research and management, including for identification of marine protected areas, as well as for abundance modeling and identification of areas with fishery-marine mammal interactions. To take just one example, researchers at the University of St. Andrews have been working on modelling marine mammal distributions worldwide for the British Royal Navy, for purposes of managing sonar training exercises. 12. The Navy's coastal exclusion analysis, which compares "standoff" distances of

12 and 25 nautical miles, is deeply flawed. To say that there is a greater risk to marine mammals with greater coastal standoff distance because the affected marine area is greater is misleading, as it fails to account for factors such as endangered species, biodiversity, and bottom topography, all of which would significantly heighten risk. It also underestimates the number of coastal marine mammals that would receive greater protection from a wider exclusion. 13. It is remarkable to me that the Navy's analysis, in breaking down species into

shelf, shelf-break, and pelagic groups, does not take account of an extremely common type of marine mammal: the near-coastal species, 90-100% of whose population is found within 1-3 nautical miles of shore, regardless of the width of the continental shelf. There are many such species, including harbour porpoises, sea otters, and harbour seals, and many of the most endangered cetacean species as well, including Hector's dolphin and the vaquita. In addition, many of the other species that the Navy would consider shelf-based have highest densities near land. Examples include most sea lion species and minke whales. 14. These two classes of species represent a substantial proportion of marine mammals 4

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generally. Of 121 marine mammal species, roughly 24 (or 20 percent) occur primarily near shore and 18 (or 15 percent) occur over the shelf but are concentrated near shore. Thus the Navy's analysis, which assumes even densities of coastal species across the shelf, is likely to very significantly underestimate the relative impact of a smaller standoff distance on a large number of animals, particularly under the scenarios where the shelf break is deemed to lie further from shore. 15. Furthermore, the same species also represent a high proportion of the marine

mammals included on endangered species lists. They account for half of the 22 species listed under the U.S. Endangered Species Act and for 21 (or 60 percent) of the 35 species listed as Critically Endangered, Endangered, or Threatened on the IUCN Red List, which is generally considered by conservation biologists to be the most authoritative international reference. They are also the species that, in general, have the least ability to flee a sound source into alternative habitats. The Navy does not appear to consider protection of endangered species or small populations in rejecting a wider exclusion zone. 16. The Navy's analysis assumes that the LFA source is stationary (which it will not

be), or moving parallel to the coastline (which it may not be). Animals may try to seek safety in shallower inshore waters, but if the source is also moving inshore this becomes more difficult; the situation would become more dangerous the closer the source is to land. For this reason also, it is preferable to keep mobile sources away from the coast. 17. Given all of these factors, and considering, too, the use by other species of the

shelf break itself, the optimal environmental solution would establish a stand-off distance at the greatest possible distance from the coast and, preferably, at some distance seaward of the shelf break, where cetaceans also concentrate. 18. I remain deeply concerned about the biological impacts that deployment of the

LFA system will have in the Northern Pacific Ocean and elsewhere, especially with regard to deep-diving species, such as the beaked whales and sperm whales that have been the subject of a substantial part of my research. The LFA system, if deployed as the Navy intends, poses a significant risk of serious harm to marine mammals. In my opinion, employing robust geographic
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mitigation would significantly reduce, though certainly not eliminate, the potential impacts of the system. I hereby declare under penalty of perjury that the foregoing is true and correct.

Executed this 10th day of October, 2007.

_____ Hal Whitehead

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