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, JOHN CALAMBOKIDIS 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 JOHN CALAMBOKIDIS Case No. CV 07-4771 EDL

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I, JOHN CALAMBOKIDIS, 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 Research Biologist with Cascadia Research, a non-profit research

organization I founded in 1979. I have conducted research on marine mammals, especially the impact of human activities on marine mammals since 1976. I have been the Project Director of more than 50 studies on marine mammals and have authored over 40 publications in journals or books and more than 60 technical reports. 3. I have also been conducting extensive studies of humpback and blue whales in

the North Pacific since 1986. I have authored and co-authored publications in both scientific journals and technical reports on the population status, stock structure, and migration patterns of humpback and blue whales across the North Pacific. This included a study of humpback whale population status and migrations that lead to the first revised basin-wide estimates since commercial whaling ended for humpback whales (Calambokidis et al., 1997, "Abundance and population structure of humpback whales in the North Pacific Basin"; Calambokidis et al., 2001, "Movements and population structure of humpback whales in the North Pacific"); and SPLASH, a multi-year study of the abundances, population structure, and potential human impacts on humpback whale populations across the North Pacific (Cascadia Research et al., "Final programmatic report: status of humpback whales and human impacts"). Our studies on blue whales have also provided estimates of blue whale abundance in the eastern North Pacific and insight into their migration patterns. 4. In recent years my research included several studies on the impact of low-

frequency sound on marine mammals including the impacts of sound generated by the Navy's LFA system. (Other studies were focused on impacts from a sound source used for oceanographic research (known as ATOC) off the California coast; and impacts from airguns used in seismic exploration.) I participated in the aerial surveys and photographic identification
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of marine mammals associated with the Navy's LFA research off San Nicolas Island, California, and later submitted comments on the Navy's Environmental Impact Statement. 5. I remain concerned that the Navy and NMFS have not accurately addressed the

potential impacts of the LFA system and have underestimated the potential impacts of LFA on marine mammals. Our experience assessing the impact of the California ATOC sound source found that humpback and sperm whales were distributed farther from the sound source when it was transmitting than when it was off. This effect was noted despite the source's relatively low transmission rate (20 min. transmissions every 4 hours), and its lower effective source level (at 195 decibels, many orders of magnitude lower) compared to LFA. The range of these effects indicate that animals were moving away from the source at exposures of under 130 decibels. While movement away from the sound source at such low levels might protect animals from being exposed to injurious levels of sound, it is also likely to result in disruption of feeding and other essential activities at ranges of tens and hundreds of kilometers from a low-frequency source as loud as LFA at full power. These findings directly contradict the assumption made by the Navy and National Marine Fisheries Service that few biologically significant impacts will occur below 150 decibels. 6. From our research on humpback whales, I am particularly concerned about

potential LFA transmissions near their breeding grounds. LFA has been shown to alter the singing behavior of male humpback whales at relatively low exposure levels, which could have a significant impact on the reproductive success of this endangered species (Miller, P.G.O., N. Biassoni, A. Samuels, and P.L. Tyack (2000), "Whales Songs lengthen in response to sonar," Nature 405: 903; Miller, P.G.O., unpublished 2001). In the western North Pacific, humpback whale populations remain dangerously low. Our studies of humpback whale abundance in the North Pacific yielded estimates of well under 1,000 humpback whales at the major western North Pacific breeding grounds off Ogasawara and Okinawa (Calambokidis et al. 1997). These breeding grounds occur within two of the "provinces" (numbers 53 and 56) designated for LFA exercises in the coming year. With such a small remnant population utilizing this area, deployment of the LFA system as authorized poses a significant risk.
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7.

I am concerned about the impacts of LFA transmissions on blue whale

populations. Blue whales make regular low-frequency calls and although the exact role of these calls is not understood, it appears from our research that they are used by males, possibly to attract females. Given the dispersed distribution of blue whales on their breeding grounds, interference or masking these calls could make it harder for whales to locate each other and interfere with mating. 8. Many blue whale populations worldwide remain at a considerable risk. From a

pre-whaling population of several hundred thousand worldwide abundances are now thought to be below 10,000. While the population in the eastern North Pacific appears healthy, the status of the western North Pacific blue whale is more uncertain. Blue whales in the western North Pacific are a separate population with a distinct call-type. While their population status is not known, the few sightings reported (from surveys and opportunistic observations) in areas they were formerly hunted suggests it is very low. An additional impact to this population that has shown little signs of recovery could further threaten their recovery. 9. The mitigation of impacts through exclusion in coastal zones and other specific

areas is not adequate to minimize impacts on humpback whales and other species we study. For example, in the North Pacific, the Navy specifically excludes none of the humpback whale's feeding and breeding grounds with the exception of the Hawaii Humpback Whale National Marine Sanctuary, although these areas are well known through years of sighting data (e.g., Cascadia Research et al., "Final programmatic report: status of humpback whales and human impacts"). These seasonally important breeding grounds include Ogasawara, Okinawa, the Northern Marianas Islands, the Babuyan Islands in the Philippines, the Revillagigedo Islands, the central coast of mainland Mexico, and southern Baja California. The whales' highestdensity feeding grounds include southeast Alaska, Kodiak Island, and Unimak Pass and the whales' feeding grounds off Russia, particularly around the Commander Islands. Off California, Oregon, and Washington, where we have extensively studied humpback and blue whales, we find the highest densities of animals near the shelf break. There would need to be a buffer zone of several hundred miles, or at least 30 nautical miles (one convergence zone)
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beyond the shelf break, to ensure that transmissions outside these areas did not result in behavioral impacts within them. 10. In my expert opinion, the deployment of the LFA system under these

circumstances presents a substantial risk of imminent harm to marine mammals, including endangered populations of humpback and blue whales. I hereby declare under penalty of perjury that the foregoing is true and correct.

Executed this 12th day of October, 2007.

_______________________________ John Calambokidis

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