The United States lurched into a dreaded government shutdown early Tuesday for the first time in 17 years, triggering agency closures and hundreds of thousands of furloughs as Congress missed a deadline to pass a budget. Ten minutes before midnight…
A federal court has ruled that the National Marine Fisheries Service (NMFS) failed to protect thousands of whales, dolphins, porpoises, seals, and sea lions from U.S. Navy warfare training exercises along the coasts of California, Oregon and Washington.
In an opinion released Sept. 25, Magistrate Judge Nandor Vadas, U.S. District Court for the District of Northern California, found that the agency’s approval of the Navy’s training activities in its Northwest Training Range Complex failed to use the best available science to assess the extent and duration of impacts to whales and other marine mammals. The decision requires the federal agency to reassess its permits to ensure that the Navy’s training activities comply with protective measures in the Endangered Species Act.
“This is a victory for dozens of protected species of marine mammals, including critically endangered Southern Resident orcas, blue whales, humpback whales, dolphins and porpoises,” said Steve Mashuda, an Earthjustice attorney representing a coalition of conservation and Northern California Indian Tribes. “NMFS must now employ the best science and require the Navy to take reasonable and effective actions to avoid and minimize harm from its training activities.”
The Navy uses a vast area of the West Coast, stretching from Northern California to the Canadian border, for training. Activities include anti-submarine warfare exercises involving tracking aircraft and sonar; surface-to-air gunnery and missile exercises; air-to-surface bombing exercises; and extensive testing for several new weapons systems.
In 2010 and 2012, the Fisheries Service authorized the Navy to harm or “take” marine mammals and other sea life through 2015. The permits allow the Navy to conduct increased training exercises that can harm marine mammals and disrupt their migration, nursing, breeding or feeding, primarily as a result of harassment through exposure to the use of sonar.
New science from 2010 and 2011 shows that whales and other marine mammals are far more sensitive to sonar and other noise than previously thought. In permitting the Navy’s activities, NMFS ignored this new information. The court found that the agency violated its legal duty to use this “best available data” when evaluating impacts to endangered whales and other marine life.
The court also rejected the agency’s decision to limit its review to only a five-year period when the Navy has been clear that its training activities will continue indefinitely. The court held that NMFS’s limited review “ignores the realities of the Navy’s acknowledged long-term, ongoing activities in the [Northwest Training Range],” because “a series of short-term analyses can mask the long-term impact of an agency action. … [T]he segmented analysis is inadequate to address long-term effects of the Navy’s acknowledged continuing activities in the area.”
“This is an important win for the environment and for the tribes’ traditional, cultural and subsistence ways in their ancestral coastal territories,” said Hawk Rosales, executive director of the InterTribal Sinkyone Wilderness Council. “Marine mammals now stand a better chance of being protected from the Navy’s war testing and training off our coastline.”
According to the ruling, the Fisheries Service must now reassess the permits using the latest science, which could trigger a requirement that the Navy do more to protect whales and dolphins in its ongoing training exercises.
“The Navy’s Northwest Training Range is the size of the state of California, yet not one square inch was off-limits to the most harmful aspects of naval testing and training activities,” said Zak Smith, staff attorney for NRDC. “NMFS relied on faulty science when approving the Navy’s permits and thousands of marine mammals suffered the consequences.”
“Today’s ruling gives whales and other marine mammals a fighting chance against the Navy,” said Miyoko Sakashita, oceans director at the Center for Biological Diversity. “This ruling means that the Navy must take greater precautions to protect marine life.”
The Navy’s mid-frequency sonar has been implicated in mass strandings of marine mammals in, among other places, the Bahamas, Greece, the Canary Islands and Spain. In 2004, during war games near Hawaii, the Navy’s sonar was implicated in a mass stranding of up to 200 melon-headed whales in Hanalei Bay. In 2003 the USS Shoup,operating in Washington’s Haro Strait, exposed a group of endangered Southern Resident killer whales to mid-frequency sonar, causing the animals to stop feeding and attempt to flee the sound. Even when sonar use does not result in these or other kinds of physical injury, it can disrupt feeding, migration and breeding or drive whales from areas vital to their survival.
“In 2003, NMFS learned firsthand the harmful impacts of Navy sonar in Washington waters when active sonar blasts distressed members of J pod, one of our resident pods of endangered orcas,” said Kyle Loring, staff attorney at Friends of the San Juans. “The use of deafening noises just does not belong in sensitive areas or marine sanctuaries where whales and dolphins use their acute hearing to feed, navigate, and raise their young.”
Said Marcie Keever, Oceans & Vessels program director at Friends of the Earth: “Recent research confirms that the 82 remaining endangered Southern Resident orcas use coastal waters within the Navy’s training range to find salmon during the critical fall and winter months. NMFS must do more to assure that the Navy is not pushing these critically endangered orcas and other endangered marine mammals even closer to extinction.”
Earthjustice represents the InterTribal Sinkyone Wilderness Council, Center for Biological Diversity, Friends of the Earth, and Friends of the San Juans and has partnered with the Natural Resources Defense Council (NRDC) in the lawsuit.
(Source: Center for Biological Diversity)
The California State Lands Commission (CSLC) adopted a long-overdue revision of its Mitigated Negative Declaration (MND) as part of its “Offshore Low Energy Geophysical Permit Program Update” (OGPP), and adopted a general survey permit in a meeting in Sacramento on Sept. 20.
The update, anchored by a 443-page staff report, replaces the expiring MND and paves the way for a potential increase in seismic testing off the coast of San Luis Obispo County in the years to come.
Jennifer DeLeon, CSLC Project Manager, who gave the staff presentation at the meeting, cited advantages of the general permit as improved time and cost efficiencies and the timely running of surveys.
“There are about 10 to 12 surveys per year based on our history,” DeLeon told the Commission, “and to have each and every one of those go through an individual CEQA development process would not be timely and would be very redundant.”
The MND, last updated in 1998, allows applicants to declare that their projects have no significant impacts on the environment or marine life, and so there’s no loss to mitigate, and therefore no reason for the applicant to meet additional environmental requirements or seek additional permitting that more strictly regulates the “taking” of marine life.
The Commission first adopted a Mitigated Negative Declaration for the geophysical program in 1984, and that same MND has been in use since then, according to Miss DeLeon. In 1987 the Commission prohibited the use of air guns or survey techniques with more than 2 kilojoules of energy input, and in 1998 instituted a requirement for a Marine Wildlife Contingency Plan.
“Obviously, 1984 was a long time ago,” Miss De Leon told the Commission. “We understand the need to update the program based on the current understanding of acoustics and the ocean and its interaction with marine life.”
Commission staff worked closely with the National Resources Defense Council (NRDC) on the update. NRDC’s Karen Garrison told the Commission, “Because the State’s landmark new network of marine protected areas was just completed at the end of last year we want to keep that network in full view as you consider the updates to this permit. Surveys that could harm marine life or habitat in marine protected areas, especially marine reserves, should be avoided to the extent possible unless they advance the purposes of the Marine Life Protection Act. … We don’t want to unintentionally let harmful projects through.”
“Both the current program and proposed program prohibit the use of air guns,” Miss DeLeon said, “However, we’re proposing to change the way that that is measured by the eliminating the 2 kilojoules energy input threshold because it is not useful. Our current understanding of the science is that what is the most useful is to determine the sound propagation through the water and how far harmful decibel levels would propagate to reach marine life within that area, so we are moving towards a sound-modeling criteria and away from kilojoules energy input threshold.”
Miss DeLeon addressed a concern that the general permit would be a blanket permit that harmful projects could use to slip in to coastal waters.
“In the proposal that we have now,” she said, “we are looking to have surveys be screened every time so that it’s not a blanket permit, it’s not a free-for-all once you get your general permit, that there are certain requirements that each and every survey has to follow, and staff would be looking at every one of those individually for compliance.
“Another major revision we’re proposing,” said Miss DeLeon, “is vastly increased oversight and accountability, tracking and effectiveness monitoring… This goes back to why we changed from kilojoules to model-sound output. What’s become evident is that the effects on marine life are dependent on the sound level that they experience in the water. The primary factors contributing to how far that harmful sound level travels are the frequency of the sound waves and the decibel level output. There are other variables such as water depth, salinity, etc. but these are the two primary factors that we looked at.
“In this case, unlike last year’s (PG&E) high-energy survey, we’re looking at equipment that generally speaking is highly directional. The beams are directed down toward the sea floor rather than in all directions. This greatly changes the amount of radial sound propagation that takes place, and was a very important part of our analysis.”
Public commenters questioned the Commission’s lack of specificity and clarity on key issues, particularly on the lethal overlap between low- and high-energy seismic surveys, as well as on worrisome holes in the monitoring regimen and critical enforcement of the permit.
“Low-energy seismic testing is not low energy,” commented Brad Snook, Chair of the San Luis Obispo County chapter of the Surfrider Foundation, which since the beginning of the year has queried Commission staff in writing on whether seismic testing should be halted until all the wrinkles in the process are ironed out and all outstanding concerns addressed.
“The overall changes to the OGPP policy are largely insignificant without a planned measurable reduction to ocean noise pollution,” Mr. Snook said. “The OGPP update does not quantify risks to sustainability or to public health.” In order to bring the OGPP “in phase with other agencies in California, you will have to surpass staff’s limited recommendations and you will have to ask yourself, ‘How can this OGPP update help protect our marine resources and ocean users in a measurable sustainable way?’”
Mr. Snook expressed hope that “the Commission’s new policy will be part of the solution instead of remaining part of the problem.”
Jeff Carothers, Manager, Offshore Survey Division for contractor Fugro Consultants Inc., expressed his skepticism about enforcement.
“When people come in from out of state they don’t even know they need a permit, they just hop in the water and go to work,” Mr. Carothers told the Commission. “We play by the rules… I don’t see, and self-admittedly by staff, there’s no way to police this thing. Anybody can come out here and do a survey. So my question is: Can I do a survey without a permit? Seems to be a lot of people that do.”
As an example, Mr. Carothers recounted how a company that needed a permit to do a geophysical survey – ironically, a survey Mr. Carothers had bid for and lost and informed the company they’d need a permit — asked him whether they could borrow his. “I said, ‘I’m not prostituting my permit to anybody.’ So I just see no way to enforce this, and it hurts me. It hurts companies that do get permits. We’re going to follow the rules. (But) there’s a lot of permits that are going to come in, and again staff self-admittedly – we’ve asked this question – they cannot police this at all. It’s unfair.
“I care about the environment, too,” he added, “and we do operate environmentally, but I don’t want to see people come in from the outside that don’t follow the rules who could do some damage.”
“Enforcement is a challenge for us,” Commission Executive Director Jennifer Lucchesi said. “Industry who wants to conduct these types of surveys does not need a permit from the Commission if they’re conducting activities that are in federal waters or in lands that have been granted to a local jurisdiction. …There are significant areas outside state waters and federal waters where industry that has not obtained a permit from the State Lands Commission conducts these surveys, and also in state waters and granted lands.
“With that said, there’s still a large area in California that we have jurisdiction over where enforcement is a challenge,” she said. “We are exploring internally ways that we can use existing law, existing regulations to help beef up our ability to enforce, but the real problem is having boots out in the field and knowing whether these activities are actually taking place.”
Miss Lucchesi said the Commission staff has been talking with Lt. Gov. Newsom’s office “about working with the Coastal Commission and other regulatory agencies, other academic institutions that employ or require these types of surveys, to require that they are conducted by State Lands Commission-permitted entities.”
Responded Lt. Gov. Newsom, who heads the Commission, “The race should be to the top, not the bottom. (But) I don’t want to move away from the permitting regime just because it’s difficult or near impossible to enforce. That said, we’ll see what we can do to raise the bar. We heed the comments and certainly respect the good players in this, and we’ll encourage more (good) examples and we’ll discourage those that are here inappropriately.”
Respected San Luis Obispo County activist Eric Greening spoke briefly about the State Lands meeting at the Sept. 24 SLO County Board of Supervisors session in San Luis Obispo. He called the MND a “blanket permit” and said the CLSC acted “irresponsibly” by certifying it.
“With a Negative Declaration you don’t even need to make findings that it’s a needed or important project,” Mr. Greening said. “They don’t have overriding considerations with a Negative Declaration. With a Negative Declaration they have to be able to assert that ‘no fair argument’ can be made that there may be a significant impact on the environment, and in fact such a ‘fair argument’ is in the record in correspondence and testimony relative to the Negative Declaration and the certification.”
Anyone who thought that the Coastal Commission’s historic rejection of PG&E’s 3D high-energy seismic survey last November would stop or even slow down the assault on the ocean may face a new wave, and PG&E isn’t the only fish in the sea when it comes to suitors seeking to conduct seismic testing off the Central Coast.
“Even though this is a state-wide plan it’s not an individual project like the PG&E one that the Coastal Commission shot down… It’s a statewide blanket permit, but the estimate is that 55.8% of the use of it would be in the Central Coast, and we don’t know who or for what because there’s ‘including but not limited to’ weasel wording,” Mr. Greening said, adding that about 30% of the survey activity would be oil or gas related, although not necessarily surveys for oil or gas deposits, some focusing on pipelines and infrastructure.
“It’s to be a blanket permit for seismic ocean blasting that’s so-called ‘low energy,’ but the decibel count can get over 200, and the mitigations are laughable—having an observer in the boat when the sound waves are being propagated straight down is not a mitigation of any sort.
“A Negative Declaration can only hold up if there is no significant impact on the environment, and there’s just no way they can make that claim,” he said.
“Low energy doesn’t necessarily mean low impact or low decibels, and I would very strongly question whether a Negative Declaration is appropriate on this,” Mr. Greening previously said before the Board of Supervisors. “We’re not talking miniature decibels here. The output of the different boats that would be used is anywhere from 198 to 230. Granted, that’s within a meter of the actual sound source, but it can’t always be counted on to attenuate, especially when it is a focused beam and they tend for this type of survey to be focused downward, meaning monitors aren’t necessarily going to see what’s being affected.”
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09/27: Mayor Irons issued a statement to The ROCK regarding the recall. “My actions through this are driven by my responsibility and duty. I have requested outside legal counsel to ensure that City Council has legal representation through this personnel matter to protect the City and employees. I will not let the threat of recall sway my decision to move forward or distract me from my duties as Mayor.”
Morro Bay Mayor Jamie Irons is the subject of a recall petition that is being circulated around the community.
Residents initiated the recall after the mayor hastily arranged a closed session meeting on Sept. 12 to discuss the termination of City Manager Andrea Lueker and City Attorney Robert Schultz. Two weeks after the very contentious meeting took place, former City Council member William Peirce delivered a “Notice of Intention to Circulate Recall Petition” to Irons at Tuesday’s meeting. The notice wasn’t officially certified until Thursday by the city clerk’s office, when the notice reached the 30 signature threshold that is required.
The recall takes aim at Irons for what recall supporters say is a lack of transparency from Irons. They also sharply criticized Irons for reportedly failing to take into the account the financial and ethical repercussions. The Tribune calculated that the move to terminate Lueker and Schultz would cost the City approximately $300,000 while recall supporters claim the cost would be higher. At the Sept. 24 meeting, the Council voted to take $12,500 from excess in the risk management fund to hire independent legal counsel and help facilitate the termination. Irons stated that the $12,500 would be the maximum cost for the contract.
Irons defended his actions by stating that the move was legally necessary. Because Lueker and Schultz are at-will employees, they can be terminated without complaint or stated cause. Stating an opinion about personnel matters would result in potential litigation, said Irons, at the Sept. 24 meeting. Irons declined to speculate or entertain speculation about his intent to terminate the city’s top employees, who received above-average performance evaluations since he was sworn into office. Councilmembers Noah Smukler and Christine Johnson have not made any statements to the media about reasons to terminate Lueker and Schultz. Councilmembers George Leage and Nancy Johnson, who are staunchly opposed to terminating Lueker and Schultz, claim that Irons has not yet elaborated to them about his decision. However, Irons invited the two dissenting councilmembers to participate in discussions with a law firm that he will choose to work with.
Calling the circumstances “unusual” for the City of Morro Bay, Councilmember Christine Johnson said the move to hire independent counsel was necessary. Smukler agreed, noting that his vote was completely apolitical and not indicative of any future political ambitions. Both Smukler and Johnson have declined to comment to the media about the recall effort.
Supporters of the recall movement have also backed renovations for current wastewater project and keeping it at the same location. Irons and the majority of the Council voted to move the project due to clear and consistent objections made by the California Coastal Commission, which included — but not included to — flooding and tsunami concerns. The recall petition criticizes Irons for wasting eight years of staff time and labor by seeking a denial of the permit to rebuild the wastewater project at its current location. The Coastal Commission unanimously turned down the proposal.
The recall petition mentions that Irons supposedly edited staff reports after presentations to the Council and has raised taxes.
Irons will have a week to formulate a response to the recall notice.
Residents are already going door-to-door, soliciting signatures for the recall petition, which need support from 25% of the city’s registered voters. The Tribune notes that about 1,700 signatures would be needed to put a recall vote on the ballot. If the recall is successful, this would be the first recall of an elected official in Morro Bay since the city was incorporated in July 1964.
The recall effort is reminiscent of the contentious 2005 Los Osos recall. At that time, the recall was successful, but only by a hairline-slim margin.
Recall supporters will face an uphill battle to get the necessary signatures. For the June 5, 2012 election, 59.9% of registered voters elected Irons by 53.17% (2,089 votes). Former City Council member Carla Wixom received 20.90% (821 votes) and former Mayor William Yates received 20.21% (794 votes). Both Wixom and Yates are supportive of the recall and have spoken publicly in opposition to Irons’ intent to fire the city’s two top employees.
The Morro Bay City Council meeting on Tuesday, Sept. 24 remained contentious, but tensions at the podium simmered down as they voted 3-1 to hire an independent attorney. The attorney, who would be contracted for $12,500 — funds taken from from the city’s risk management budget — would advise the council on how to proceed with the termination of City Manager Andrea Lueker and and City Attorney Robert Schultz.
According to Mayor Jamie Irons, the request to seek independent legal counsel was meant to prevent conflict of interest, which would have Schultz providing counsel on his own personnel issue.
The vote allows Irons to seek an independent attorney with advice and recommendations from the rest of the Council. Irons voted with Councilmembers Noah Smukler and Christine Johnson. Councilwoman Nancy Johnson was absent from the meeting. Unsatisfied with the explanations from Mayor Irons regarding the questions he asked, Councilman George Leage cast the lone dissenting vote.
More than 200 people arrived at the meeting with a recall petition for Mayor Irons and yellow-colored protest signs that demanded the Council opt out of seeking outside legal advice, which Council dissidents say would cost up to $500,000 in additional post-termination expenses including — but not limited to — severance pay and paid administrative leave. On Sept. 20, The Tribune calculated that the terminations could cost the City at least $305,000.
The turnout was similar to the meeting that two place two weeks earlier on Sept. 12, except there was applause instead of cheering and jeering. At this meeting, half of residents who spoke were supportive of the council’s decisions while others expressed strong disapproval over Irons alleged lack of transparency. Unlike the meeting that took place on Sept. 12, the Council decided to take action on the controversial agenda item.
The Council declined to offer any explanation for attempting to terminate Lueker and Schultz. Some supporters of the Council levied accusations about Schultz with the intent to substantiate Irons’ efforts, but none of the accusations were revisited by the Council.
The article will be updated if or when City officials comment on the story.
By GEORGE LEAGE & NANCY JOHNSON
Just over a week ago Mayor Jamie Irons attempted to call a special closed meeting of the city council on barely 24 hours notice. The extraordinary meeting was to be held behind closed doors midday in the City Hall conference room for the purpose of firing both the City Administrator and the City Attorney in one fell swoop. Rest assured that the mayor would not have attempted such bold action if he did not believe that he already had two additional votes for the firings.
Unfortunately for the mayor, even closed session meetings require the opportunity for citizens to speak before the session is closed. Well, in less than 24 hours over three hundred folks showed up at city hall for the meeting. This forced the meeting to be moved to the Vet’s Hall. At the Vet’s Hall, dozens of speakers were given one minute to speak. Over 95 percent of those present were against the firings. What was particularly noteworthy was the amazing broad range of speakers in support of Andrea Lueker and Rob Schultz. Voters of all local and national political persuasions (including many local political enemies), many city board members, former council members, former mayors and even city workers who took vacation time to be there showed their heartfelt support. Even the union representatives voiced support for both Rob & Andrea. Think about that one: unions in vocal support of management!
Over and over, each in their own way, made the following points:
- Rob and Andrea have always worked for the best interests of the city regardless of the subject at hand.
- Rob and Andrea have had an open door policy where citizen input was welcomed.
- Even when a person was coming from a different direction than the city policy they were treated with respect by both Rob and Andrea.
- That they were doing a very good job.
There was a handful of folks whose basic message was that they supported the mayor with whatever he wished to do.
In the council discussion which followed public comment the following occured:
- Mayor Irons stated that he didn’t need additional time to make up his mind. He already knew what he wanted to do.
- Mayor Irons stated for the record that the action he wanted to take had nothing to do with any complaints or charges against either Rob Schultz or Andrea Lueker.
The mayor then dismissed the public and took the meeting behind closed doors where a long discussion ensued.
After the closed session, the mayor announced that no action had been taken. Many of the public took this to mean that sanity had ruled and that Rob Schultz and Andrea Lueker would remain in their positions.
Unfortunately, that is not the case.
Instead of taking the citizen input to heart, the mayor has agendized the hiring of outside legal counsel to advise the city on how to fire of the city attorney and city administrator. That motion is agendized to be heard right after public comment at the city council meeting today, Tuesday, September 24 at 6pm.
The mayor and his supporters will undoubtedly want to make their support of his planned actions during the public comment period. We need your help to keep the community record clear on this matter.
Please think about the following:
It is clear that both the city administrator and city attorney are behaving ethically and doing their jobs well. Between them they have approximately FORTY YEARS of experience serving Morro Bay. Despite those FACTS, the mayor has already decided that wants them BOTH gone as soon as he can arrange it.
What do you think the mayor has planned once admittedly experienced, competent and ethical people have been removed from those positions? Where is our community headed?
Show up! Bring friends! Even if you don’t speak your presence in support of speakers is important. We’re counting on you being present at the council meeting!
George Leage and Nancy Johnson are members of the Morro Bay City Council. Reply to this viewpoint by commenting below or e-mailing us at firstname.lastname@example.org.
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