After years as a loner adrift in his own world, Ken (Balcomb) had finally found a peer group and a mission,” writes Joshua Horwitz in his new book. Balcomb was the first to do in-depth studies of the various pods of orca whales that live in Washington’s Puget Sound. “(His) and Michael Bigg’s (of the Humane Society) research offered the first science-based understanding of orca behavior and communication, and an appreciation of a mammal group whose social complexity equaled that of elephants and great apes,” Horwtiz writes.

Balcomb observed so closely that he detected a matrilineal social organization among orcas; he knew every whale by the signature scars on their dorsal fins; he knew how many there were and when their numbers dropped. So when whales started stranding on beaches in the Bahamas, where Balcomb spent his summers researching beaked whales, he was the first to sound the alarm.

What follows in Joshua Horwitz’s “War of the Whales” is the tale of the fight to win protections for marine mammals. But sides are sometimes hard to determine. The lawyers of the Natural Resources Defense Council (NRDC), particularly Joel Reynolds, are staunchly against the U.S. Navy’s indiscriminate use of sonar in their antisubmarine exercises; they dump noise pollution into the world’s oceans, confusing whales and causing strandings, which are usually fatal.

But the Navy has tentacles nearly everywhere: Many of the cetacean researchers get their funding from the nautical branch of the military, making them hesitant to cross the Navy. And that’s not to mention how much political sway it has. Even Balcomb was originally reluctant to speak out against the world’s most powerful nautical fleet. “Balcomb was 60 years old, a proud veteran of two tours — too old and too loyal to call out the Navy in public. He’d taken oaths. He knew how to keep secrets and he understood why the Navy had to keep some things hidden.”

The priorities of the Navy, revealed throughout the sweeping course of Horwitz’s retelling of the war for the whales, are decidedly not healthy for marine life.

The use of sonar was a matter of national security; a few whale deaths here and there could be viewed as merely incidental, especially when the lives of men and women — civilian and uniformed — are at stake.

But “despite its power and privilege at sea, on Capitol Hill and in the courts, the Navy leadership cared deeply about public opinion. They disliked being perceived as bullies or as bad stewards of the environment. Most of all, they hated being seen as losers in face-offs against environmental activists.”

Of course, the rally cry to save the whales hasn’t always been ringing. “When the Navy began studying cetacean biosonar in the late 1940s, the only people who cared about saving the whales were whalers.”

The perils of antisubmarine sonar technology were brought to the attention of the general public recently, and even in the face of undeniable evidence, they have not been easy to curtail.

“Photographs of stranded whales with blood leaking from their eyes fed a growing wave of public indignation that even the world’s most powerful Navy couldn’t contain,” Horwitz writes. But this indignation was difficult to sustain.

“Millions of Americans watched (Balcomb’s) videotape of the mass stranding (in the Bahamas in 2000) and listened to David Martin of CBS News indict the U.S. Navy as the likeliest culprit — and then went back to speculating on whether or not the New York Mets and the New York Yankees would face off in the first Sunday Series since 1956. Except for a few calls from journalists, the ‘60 Minutes’ broadcast didn’t seem to move the meter.” The world’s most powerful Navy can be moved by public opinion, but the public, it seems, can be moved more easily by football than threats to sea life.

Eventually, Reynolds, the lead lawyer at the NRDC, was able to stir public outrage, which he did as part of his burgeoning case against the Navy’s use of low- and mid-frequency sonar in its training exercises.

“Reynolds’ compulsion to answer calls for help was bred in the bone. Growing up, his brother and four sisters often joked about his messiah complex. … He reserved his professional aspirations for the only mission that really mattered to him: saving the planet.”

With a team of the smartest lawyers he could find, Reynolds filed suit against the Navy for violating environmental regulations with its unscrupulous use of sonar. The NRDC initially won a preliminary injunction against sonar use and eventually protections in key whale breeding grounds and coastal regions. The court order allowed naval sonar exercises to continue with certain safeguards but, while Reynolds saw the Navy’s concessions as a victory, more radical environmentalists saw it as a sellout on the NRDC’s part.

“Reynolds wasn’t surprised. He reminded himself that while some of his critics might be good at mobilizing public protests and press coverage, none of them had ever successfully sued the Navy over its use of sonar. As he’d learned over the years, the hardest part of his job was deciding when to litigate and when to cut a good-enough deal which — as in this case — was often on the table for only a brief moment.”

The only problem is that the Navy had the power to write the laws in the face of continual mass strandings, public protest and even lower-court laws. It appealed all the way to the U.S. Supreme Court and won an exemption to environmental regulations, including the Endangered Species Act and the Clean Water Act, in the name of national security, which the public valued even more than sports, especially after 9/11.

“(Justice John) Roberts invoked two presidential quotations to bookend his decision. He opened his opinion with George Washington’s statement: ‘To be prepared for war is one of the most effectual means of preserving peace.’ Twenty-four pages later, he closed with Theodore Roosevelt ‘The only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed.’” So now, “having barely escaped commercial whaling, were the survivors doomed to be overrun by the ceaseless naval arms race after more and more powerful acoustic weapons? Would judges and politicians continue to defer to admirals in their ‘balance of hardships’ calculations until there were no more whales left to save?”

Horwitz’s narrative is almost soggy with backstory and personal histories of many of the major players. From Balcomb’s fourth failed marriage, which comes so abruptly, one holds out hope until the last page of the epilogue that it may be repaired, to Reynolds’ engagement after the breakup of his first marriage to the scientist who dictated the date of D-Day by forecasting a two-day window of windless weather, the behind-the-scenes look at some of the nation’s most well-known memories is intriguing, if a little overwhelming. And I’m a bit uncomfortable with how Horwitz portrays women and relationships: The single professional women, such as forensic pathologist and whale and human hearing expert Darlene Ketten, come off as frigid and somewhat backstabbing; Ken’s wives and girlfriends seem fickle and less committed than the whales he studies.

The book is about the struggle to protect the magnificent marine life that is so elusive it’s enchanting, but the potential inferences that can be made from the character stories about women are, to say the least, a distraction.

“(Balcomb) had a couple of girlfriends who moved in and out of Smuggler’s Cove, seasonally, like the whales. Balcomb acknowledged, with a smile, that he wasn’t sure whether the women were coming to see him or the orcas.” To be fair, “(Balcomb) had never shown much aptitude for the shared decision making and compromises that come with marriage. He’d always enjoyed the company of women, but until he met Diane (his fourth wife), his only true romance had been with the sea and with the whales.”

The conclusion of this story — that the Navy won, and the whales lost — is frustrating. An even deeper frustration is crystallized in this line, written about the Supreme Court justices: “One woman, eight men. Their only common feature was their unassailable power to uphold or rewrite the law in the world’s most powerful democracy.”

It’s not just that the Supreme Court has enough power to concede to Navy lobbyists; it’s rather that this system is still thought of as a democracy. How is it a democracy if nine people have the sole power to change the laws? A true democracy puts the power with the people and their freely elected officials; the nine Supreme Court justices are, per the Constitution, nominated by the president, an office that is filled by the electoral college, staffed by popularly elected “electors.”

Reinforcing this idea that our political system is a true democracy is one reason the environment — and the whales — is never saved. It could be why, as the author says, “Common sense is never enough to win a case in court.”

And it could also by why, as Joel Reynolds says of the sign he sees on the way to court in his recurring nightmare: “Equal justice under law. But everything’s warped.”



Reprinted from Street Roots’ sister paper, Real Change News, Seattle.