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, LINDA WEILGART 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 LINDA WEILGART Case No. CV 07-4771 EDL

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I, LINDA WEILGART, 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 Biology from Dalhousie University and an M.Sc. in

Biopsychology from the Memorial University of Newfoundland. For the past twelve years, I have been a Research Associate at Dalhousie University and from 2003 to 2005 was an Assistant Professor in its Department of Biology. I have also been a Research Associate in bioacoustics at the Max Planck Institute of Behavioral Physiology, in Seewiesen, Germany, and did my postdoctoral work in the Bioacoustics Research Program at Cornell University. 3. Almost all of my work as a researcher has been concerned with bioacoustics,

particularly with regard to the role that sound plays in the biology of whales, especially deepdiving whales. I have been an invited participant at several scientific meetings and workshops, including ones organized by the International Whaling Commission's Scientific Committee and the Canadian Department of Fisheries and Oceans, concerning the impacts of anthropogenic noise on marine mammals. I was also an alternate member of the Federal Advisory Committee on Acoustic Impacts on Marine Mammals, convened by the U.S. Marine Mammal Commission. I also served on an expert review panel to evaluate studies of the effects of noise on snow crabs. My curriculum vitae is appended to this Declaration. 4. The conclusions I draw and the opinions I express are supported by texts and

research that other experts in my field consider reliable. In preparing this Declaration, I reviewed relevant portions of the Navy's Supplemental Environmental Impact Statement for the SURTASS LFA system and related documents. 5. I am concerned that the Navy has not adequately addressed the potential for

cumulative effects from years of operating the LFA system in the same regions. The SEIS appears to discount the potential for such effects by comparing LFA's contribution to the global budget of acoustic energy from all anthropogenic sources, observing that each LFA sonar source
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contributes about 0.5% to the total energy budget annually. If one considers that the budget includes such other sources as underwater explosions and an estimated 90 airgun arrays and 11,000 supertankers operating most of the year (Hildebrand 2005), it is remarkable that a single LFA sonar source should even register in this calculation. When this figure is considered at the more appropriate spatial scale, as a proportion of the local and regional budgets where the system is actually used, the contribution is likely to be significant. It is important to note that naturally occurring noise and anthropogenic noise cannot be equated, because cetaceans have encountered each at different evolutionary time scales. Especially for long-lived species, such as whales, and where background noise levels have rapidly increased, animals are highly unlikely to be able to genetically adapt at a pace similar to that of habitat change (Rabin and Greene 2002).1 6. I am also concerned about LFA's potential to induce sensitization: a process in

which, following an alarming experience with noise, an animal reacts more strongly to noise in future. To examine the Acoustic Startle Response, Götz and Janik (2007)2 played back a 170 dB (RL rms) sound underwater to eight captive seals, preceded by a weaker (130 dB) pre-sound to allow conditioning. The animals were tested individually when they approached an underwater feeding station. Five out of the eight individuals became sensitized: they showed an immediate flight response, stopped feeding at the underwater feeding station, and largely refused to enter the water again; and after the fourth or fifth playback, underwent the same flight response on stimulation by the pre-sound alone. The three animals that had appeared to habituate to the loud sound were suspected of being hearing impaired, based on subsequent tests. A similar response was seen in gray seals in the wild, where seals avoided a presumably important area (Götz and Janik 2007). 7. I remain concerned about the potential effects of acoustic masking on cetaceans.

Reverberations or multipaths from the ocean floor can make signals all but continuous, as shown

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Rabin, L.A., and Greene, C.M. (2002), "Changes in acoustic communication systems in humanaltered environments." J. Comp. Psychol. 116: 137-141.
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Götz, T., and Janik, V.M. (2007), "The Acoustic Startle Response in Phocids: an initiator of extreme behavioural responses to anthropogenic noise," poster and abstract at the Effects of Noise on Aquatic Life International Conference, Nyborg, Denmark, Aug. 13-17, 2007.
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by analysis of both mid-frequency sonar transmissions (NMFS 2005)3 and airgun pulses (IWC 2004).4 Masking is not just restricted to the duration of the signal; rather, low-frequency reverberation effects can draw out the duration of the masking considerably. The noise from multipaths after one ping does not, in certain situations, return to baseline before the next ping commences. Thus, the nominal duty cycle of SURTASS LFA may in effect not be 7.5 to 10% as claimed, but much higher, and masking effects, which for some large whales may occur just above their threshold of sound detection, could well be significant. 8. As a bioacoustician, I do not see any basis for the claim that beaked whales would

not respond significantly to low-frequency sound. Audiograms have been carried out on a small number of animals from a small number of species, and relatively little is known about the auditory sensitivity of beaked whales at various frequencies. While hearing loss from intermittent sources requires exposure to sound of greater amplitude, animals can react behaviorally to sound not far above their threshold of detection. Moreover, animals may sense sound other than through their hearing, via non-auditory processes such as skin sensations, resonances in air sacs, and vestibular responses. In the 2000 Bahamas stranding, Cuvier's beaked whales were thought to have been exposed to relatively moderate levels of MF sonar, on the order of 150-160 dB for 50150 s (Hildebrand 2005),5 based on a good knowledge of the distribution of Cuvier's beaked whales in the area from previous surveys and by modeling the sound field. These levels are too low to cause permanent or probably even temporary hearing loss in these animals, especially as beaked whales seem to have greatest auditory sensitivity at higher frequencies. The fact that the whales appear to have responded profoundly to sounds outside their expected range of maximum

NMFS (2005), "Assessment of acoustic exposures on marine mammals in conjunction with USS Shoup active sonar transmissions in the eastern Strait of Juan de Fuca and Haro Strait, Washington, 5 May 2003," Silver Spring, Md., NMFS. 4 International Whaling Commission Scientific Committee (2004), Annex K of the 2004 Scientific Committee Report: Report of the Standing Working Group on Environmental Concerns. Annual IWC meeting, Sorrento, Italy, 29 June ­ 10 July 2004.
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Hildebrand, J. (2005), "Impacts of anthropogenic sound," in T.J. Ragen, J.E. Reynolds III, W.F. Perrin, R.R. Reeves, S. Montgomery, Marine Mammal Research: Conservation beyond Crisis, Baltimore, Md., Johns Hopkins.
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auditory sensitivity should raise strong concern that low-frequency sound could induce similar effects. 9. Simply stating that "no reported Level A... harassment takes or strandings" have

taken place since 2003 has little meaning given the actual monitoring effort pursuant to LFA exercises. Even with an extensive monitoring effort (which was not the case here) to look for strandings or deaths at sea, most cetacean carcasses easily escape detection. Similarly, one cannot suggest that there are no field data to contradict a conclusion of negligible effect from LFA sonar on stocks of marine mammals, since population effects weren't investigated in relation to exposure to LFA sonar. LFA sonar operates at too large a spatial and temporal scale to imagine there will be no significant impact on the marine environment and on marine animal populations. This is a clear case when precaution should dictate our policy before it is too late and irreversible damage is done to our oceans. I hereby declare under penalty of perjury that the foregoing is true and correct. Executed this 10th day of October, 2007.

_____ Linda S. Weilgart

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