Free Declaration in Support - District Court of California - California

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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, NATACHA AGUILAR DE SOTO 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 NATACHA AGUILAR DE SOTO Case No. CV 07-4771 EDL

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I, NATACHA AGUILAR DE SOTO, 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 am a cetacean researcher at La Laguna University, in the Canary Islands, Spain,

which is among the places that have experienced the highest number of mass mortalities of cetaceans related to naval exercises. I am also a member of the Scientific Committee for the Study of the Mass Stranding of Beaked Whales in Conjunction with Military Exercises in Canary Islands, created in 2002 by the regional government and the Ministry of Defence of the Spanish Government. My research includes acoustic ecology, population and distribution studies, and habitat use and diving patterns of Blainville´s and Cuvier´s beaked whales and the short-finned pilot whale. I received my Ph.D. on beaked whales from La Laguna University, co-supervised by Aarhus University in Denmark and University College Cork in Ireland. A copy of my curriculum vitae is attached to this Declaration. 3. In preparing this Declaration, I have reviewed relevant portions of the Navy's

Final Supplemental Environmental Impact Statement and NMFS' August, 2007 Final Rule regarding deployment of SURTASS LFA. The conclusions I draw and opinions I express are supported by texts and research that other experts in my field would consider reliable. 5. The Final Rule's conclusion that "the effects on marine mammals from operation

of SURTASS LFA sonar will not be the lethal removal of animals" (p. 46886) should be considered with great care, in light of the lack of scientific data supporting it (it is important to differentiate between lack of data and lack of effect) and the precedent of the unforeseen potential consequences of mid-frequency sonar prior to the Greek stranding. 6. It is incorrect to say, as the Final Rule does, that sonar-related mortalities require

the presence of deep water close to land. When quantifying the extent of an impact on marine mammals, detectability is the main limiting factor; strandings are considered in epidemiology only as an indication of a wider problem. The only common factor in most mass strandings of
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beaked whales related to the use of military sonar is the location of the exercises in deep waters close to land, but it is unknown if this affects the behaviour of the animals or the sound transmission in a way that increases the impact of sonar (Fernández et al. 2005; Cox et al. 2006). What is clear is that near-coastal operations increase significantly the probability of detecting a mass stranding should one occur. Most LFA usage has been restricted to deep waters far from land, where any potential effect on marine fauna would tend to pass unnoticed. Until a strict and extensive marine mammal monitoring procedure is in place before, during and after any LFA usage, it is not possible to verify with certainty that there have been no mortalities solely associated with LFA sonar. 7. Furthermore, establishing a coastal buffer 12 nm from shore would not remove

the risk of mortalities. In several of the stranding and mortality events in which ship tracks were reported (e.g. Bahamas in 2000, Canary Islands in 2004), sonars were operated well beyond that distance. For example, the 2004 mortality of four beaked whales that died at sea near the Canary Islands occurred in relation to NATO naval exercises performed some 100 nautical miles (nearly 200 km) northeast of the archipelago. Pathological analyses of these whales showed decompression pathologies and haemorrhagic symptoms consistent with those found in Canaries 2002 and Bahamas 2000 mass strandings (Fernández et al. 2005), as reported by the Scientific Committee of the International Whaling Commission (IWC 2006). 8. NMFS also states that strandings will not occur unless a sonar source is operated

in depths of less than 10 meters. Operation of an acoustic system within the upper 10 meters of the water column matters significantly for propagation only if there is a sound duct near the surface to concentrate and conduct sound. In fact, such a duct did not occur during all naval manoeuvres related to strandings, e.g. during the exercises conducted in the Canary Islands in 2002, one of the most closely examined strandings related to sonar. Oceanographic data around the Canary Islands during the strandings were taken with CTD recorders, which measure conductivity and temperature at various depths within the water column; these data did not indicate the presence of a surface duct. Mass strandings in relation to sonar in Canaries have occurred in different seasons of the year when oceanographic conditions vary greatly.
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9.

NMFS also suggests that the speed of the boats during the exercises related to the

strandings (5.1 knots or more) was somehow significant. Based on the available literature, I can find no biologically meaningful reason why the speed of a boat would relate to its potential impact. Strandings of beaked whales have been related to exercises including emissions from only one vessel (e.g. Greece) or several (e.g. Canaries 2002 & 2004). 10. Finally, there is no scientific certainty about the statement that beaked whales

would not respond significantly to SURTASS LFA because they have relatively poor hearing in the low frequencies. The spectral sensitivity of cetaceans has been studied in only a handful of species (Richardson et al. 1995), and there are virtually no data on the sensitivity of the some 28 species of beaked whales (Cook et al. 2006). Recent studies show that two of the most common species in sonar-related mass strandings, Cuvier's and Blainville's beaked whales, vocalize at ultrasonic frequencies above 25-30 kiloHertz (kHz) (Johnson et al., 2004; Zimmer et al., 2005; Johnson et al., 2006). However, the same species have been recorded to strand in relation to exercises using mid-frequency sonar (1-10 kHz), which are much closer to the frequencies of low-frequency sonar (<1kHz) than to the frequencies used by the whales themselves. The reasons for this apparent sensitivity to frequencies well out of the spectral range of their own vocalizations are still unknown and it can not be excluded that they may be also sensitive to lower frequencies. Another acoustically responsive species, the harbour porpoise, has been reported to react aversively to sound at levels not far above its threshold of detection (Kastelein et al. 2005). 11. The Navy's Supplemental Environmental Impact Statement for LFA sonar

concludes that "the consistent association of MF sonar in the Bahamas, Madeira and Canary Islands strandings suggest that it was the MF component, not the LF component, in the NATO sonar that triggered the Greek stranding of 1996 (ICES, 2005)." However, the fact that LFA sonar was used during the Greek exercise leading to the stranding makes it scientifically impossible to exclude LFA from the range of potential causes. 12. The Final Rule authorizing use of LFA sonar states that there will be a 12

percent cap on annual takes of any cetacean population. Beaked whales account for nearly 30
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percent of all toothed whale species; in order to fulfill NMFS' statement, it is necessary to have a prior knowledge of the distribution and stock size of beaked whales, which is lacking in most cases. The most striking example is the spade-toothed beaked whale (Mesoplodon traversii), known only for pieces of bones found on both sides of the south Pacific. The scarce data available (e.g., Gowans et al. 2000; Dalebout et al. 2005; McSweeney et al. 2007) indicate that beaked whales do not have large local populations, which potentially reduces the sustainable take that these populations may be able to stand in the long term. 13. There are on-going studies in the Bahamas, the Canary Islands, and Italy on

populations of beaked whales from species involved in sonar-related mass strandings. These and other studies (Barlow, 1999; Aguilar Soto, 2006; Tyack et al., 2006) show that beaked whales are among the most difficult marine mammals to spot at sea, due to the short duration of each surfacing in their dive patterns (Blainville's and Cuvier's beaked whales spend only some 8% of their time visible at the surface). In spite of these inherent difficulties, the results of the studies indicate that individual beaked whales are seen in the same areas over several years, supporting the hypothesis that beaked whales may have strong site fidelity. All of these factors would suggest that the effectiveness of visual monitoring for mitigation is limited and this should be complemented with a strict monitoring protocol including passive acoustic detection. The suggested territorial fidelity of the whales might prevent their ability to avoid areas of disturbance and thus make them more vulnerable to impacts from intense acoustic sources. 14. In my expert opinion, the literature that has developed over the past five years on

beaked whales and acoustic impacts increases concern about the potential for SURTASS LFA exercises to impact beaked whales. Intense sound sources may also affect other marine fauna, including fish and crustaceans and this should also be assessed.

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I hereby declare under penalty of perjury that the foregoing is true and correct to my knowledge. Executed this 12th day of October, 2007.

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Natacha Aguilar de Soto

REFERENCES Aguilar de Soto, N. 2006. Acoustic and diving behaviour of the short finned pilot whale (Globicephala macrorhynchus) and Blainville´s beaked whale (Mesoplodon densirostris) in the Canary Islands. Implications on the effects of man-made noise and boat collisions. PhD thesis. La Laguna University. Tenerife. Canary Islands. Barlow J. 1999. Trackline detection probability for long-diving whales. In: Marine Mammal Survey and Assessment Methods (Garner GW, Amstrup SC, Laake JL, Manly BFJ, McDonald LL, Robertson DG, eds). Rotterdam, Netherlands: A. A. Balkema. Cook, MLH, Varela, RE, Goldstein, FD, McCulloch, SD, Bossart, GD, Finneran, JJ, Houser, D, Mann, DA. 2006. Beaked whale auditory evoked potential hearing measurements. J Comp Physiol A. DOI 10.1007/s00359-005-0086-1 Cox TM, Ragen TJ, Read AJ, Vos E, Baird RW, Balcomb K, Barlow J, Caldwell J, Cranford T, Crum L, D'Amico A, D'Spain G, Fernández A, Finneran J, Gentry R, Gerth W, Gulland F, Hildebrand J, Houser D, Hullar T, P.D. Jepson, D. Ketten, C.D. Macleod, P. Miller, S. Moore, D.C. Mountain, D. Palka, P. Ponganis, S. Rommel, T. Rowles, B. Taylor, P. Tyack, D. Wartzok, R. Gisiner, J. Mead, and L. Benner. 2006. Understanding the impacts of anthropogenic sound on beaked whales. J. Cetacean Research & Management 7: 177-187. Dalebout, ML, Robertson KM, Frantzis A, Engelhaupt D, Mignucci-Giannoni AA, RosarioDelestre RJ, and Baker CS. 2005. Worldwide structure of mtDNA diversity among Cuvier's beaked whales (Ziphius cavirostris): implications for threatened populations. Molecular Ecol. 14: 3353-3371. Fernández A, Edwards JF, Rodriguez F, Espinosa de los Monteros A, Herráez P, Castro P, Jaber JR, Martin V, Arbelo M. 2005. "Gas and fat embolic syndrome" involving a mass stranding of beaked whales (family Ziphiidae) exposed to anthropogenic sonar signals. Veterinary Pathology 42: 446-457.

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Gowans S, Whitehead H, Arch JK, and Hooker SK. 2000. Population size and residency patterns of northern bottlenose whales (Hyperoodon ampullatus) using the Gully, Nova Scotia. J. Cetacean Res. Manage. 2: 201-210. Hooker SK and Whitehead H. 2002. Click characteristics of northern bottlenose whales (Hyperoodon ampullatus). Mar. Mamm. Sci. 18: 69-80. IWC (International Whaling Commission). 2006. Report of the IWC Scientific Committee. Cambridge, U.K. 87 pp. Johnson M, Madsen PT, Zimmer WMX, Aguilar de Soto N, and Tyack PL. 2004. Beaked whales echolocate on prey. Proc. R. Soc. London, Ser. B 271: S383-S386. Johnson M, Madsen PT, Aguilar Soto N, Tyack P. Foraging Blainville's beaked whale (Mesoplodon densirostris) produce distinct click types matched to different phases of echolocation. J. Exp. Biol. 209: 5038-5050. Kastelein RA, Verboom WC, Muijsers M, Jennings NV, van der Heul S. 2005. The influence of acoustic emissions for underwater data transmission on the behaviour of harbour porpoises (Phocoena phocoena) in a floating pen. Marine Environmental Research 59: 287-307. McSweeney DJ, Baird RW, and Mahaffy SD. 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: 666-687. Tyack, P., Johnson, M., Aguilar Soto, N., Sturlesse, A., Madsen, P. 2006. Extreme diving behaviour of beaked whale species Ziphius cavirostris and Mesoplodon densirostris. The Journal of Experimental Biology, 209, 4238-4253. Zimmer WMX, Johnson MP, Madsen PT, and Tyack PL. 2005. Echolocation clicks of freeranging Cuvier's beaked whales (Ziphius cavirostris). J. Acoust. Soc. Am. 117: 3919-3927.

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