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Monday, September 22, 2008

Memo to the U.S. Navy: So long, and thanks for all the fish

I spent a little time this weekend reading the briefs for a case on the U.S. Supreme Court's docket next month. (I know, I know, it's a gripping way to spend one's off time, isn't it?) Actually it was for a piece I was putting together for Supreme Court Preview, an excellent ABA publication that provides a sneak peek at upcoming high court decisions.

The case I was turning my attention to -- Winter v. Natural Resource Defense Council -- involves an epic battle between the U.S. Navy and err ... dolphins. OK, OK, the parties on the other side of this mammalian struggle are really environmental groups. You may have heard about the case -- which has made quite the media splash. It involves a federal court injunction limiting the Navy's use of sonar during training exercises off the coast of California. The dolphins -- and certain type of whales -- apparently don't appreciate the high pitch blasts of sound. The extent of the injury to their populations is part of the litigation.

It's a serious environmental case that brings up a bevvy of legal issues. For example, when must environmental-protection concerns yield to military preparedness? I can't help recalling those above-ground atomic tests in Nevada back in the 1950s. Those weapons tests obviously wreaked havoc on the environment, but a very good case can be made that they were a necessary part of our national-security strategy. What would have happened if today's environmental laws had existed then? Of course, that would have been the least of the government's potential problems. Officials were allowing spectators in the area to watch the tests with only sunglasses for protection ...

The Winter case also implicates a number of interesting procedural issues that involve the interplay of the three branches of government. It will be interesting to see how the Supreme Court treats the case in a world faced with an increasing number of both national-security and environmental hazards.

Meanwhile, the dolphins (and whales for that matter) have no idea that this is playing out in the highest court in the land of something called the United States of America. Yet, despite their ignorance of our legal system, Douglas Adams, the late author of the very humorous "Hitchhiker's Guide to the Galaxy" series, referred to dolphins as the second most intelligent mammal on the planet-- next to, of course, us. However, even that was the subject of some dispute. The following is one of my favorite quotes from the Hitchhiker series:

"It is an important and popular fact that things are not always what they seem. For instance, on the planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much -- the wheel, New York, wars and so on -- whilst all the dolphins had ever done was muck about in the water having a good time. But conversely, the dolphins had always believed that they were far more intelligent than man -- for precisely the same reasons."

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