Bird-Brained Ruling Might Harm U.S. Military Readiness

INSIGHT magazine ^ | April 1, 2002 | Sean Paige

[Stand Watch Listen]

A federal judge's ruling that live-fire military training at Farallon de Medinella a tiny speck of coral and scrub near Saipan in the Pacific Ocean violates the 1918 Migratory Bird Treaty Act potentially could halt future bombing or shelling there. This development potentially has serious implications not just for U.S. Pacific Fleet gunners and aviators who use the island to hone their combat skills, but for any other military-training site that hosts migratory birds.

Finding on behalf of the plaintiffs the Earthjustice Legal Defense Fund, representing the Center for Biological Diversity ? U.S. District Judge Emmet G. Sullivan ruled that Navy training on the island, which began in 1971, was killing birds protected by the treaty without a permit from the U.S. Fish and Wildlife Service as required by law. "While it is difficult to calculate the precise number of birds that are being harmed by [the Navy's] activities," Sullivan wrote in his decision, "it is clear from the record that defendants are killing a significant number of these birds on an ongoing basis."

The Pentagon argued that the treaty didn't apply to actions by federal agencies and that the loss of a few birds had to be weighed against the interests of national security. The remedy phase of the case will be heard April 30, leaving the future of live-fire training on the island up in the air.

The skirmish over the island is one of a growing number the Pentagon has been fighting ? and losing ? with green groups and not-in-my-back-yard activists intent on closing or curtailing the use of live-fire training ranges in Hawaii, California, Arizona, Florida, Puerto Rico and elsewhere. The cumulative impact of these "encroachment" conflicts on military readiness is uncertain, but they are of serious concern to Pentagon brass and some members of Congress.

One such member is Rep. Joel Hefley (R-Colo.), chairman of the House Armed Services subcommittee on Military Readiness. He used a recent congressional hearing to grill Pentagon officials about why they haven't asked Congress for a national-security exemption from the Endangered Species Act (ESA), as permitted by law, or even bothered to establish a protocol for initiating such a request should it become necessary. Hefley does not advocate overturning ESA, the Marine Mammal Protection Act or any other environmental law that affects military operations and installations; just a heightened recognition on the part of lawmakers that "due to its unique training and operational missions, the Department [of Defense] often faces unique challenges in balancing its obligation to comply with these environmental laws and sustaining military readiness."

Illustrating the problem, the Bureau of Land Management (BLM) recently granted a permit to conduct a large-scale exercise in the Mojave Desert near its base at Twenty-Nine Palms, Calif. It is but one with so many restrictions and strings attached that it hardly will qualify as "realistic" training ? unless the military plans to clear endangered species out of its way every time it goes into battle.

According to the agreement struck with BLM, the Marines will not be allowed to conduct nighttime maneuvers, engage in live or simulated fire, or venture off established roads and trails during the exercise. Monitors will be deployed to ensure that vehicles don't run over desert tortoises and other reptiles during the exercise, dubbed Desert Scimitar '02.

Environmentalists opposing the permit cite the risk of animals and their burrows being crushed as just one concern, and argue that dust thrown up by the exercise also can adversely impact area wildlife. "It isn't enough to say, 'Hey, no tortoises will be run over,'" a biologist for the Center for Biological Diversity told a newspaper. "The long-term degradation to habitat from 600 vehicles could be enormous." Desert tortoises have very sensitive respiratory systems, according to the biologist. It is in their name that vast swaths of "public" land in Nevada and California have been closed to recreation and cattle ranching, as well as opposition to expansion of the armor-training facility at Fort Irwin.

But if they were so sensitive and vulnerable to dust, how have they managed to survive for millennia in the Mojave, where dust and dust storms are part of the natural order of things? Moreover, during World War II the area in question was home to the 18,000-square-mile Desert Training Center, established by Gen. George S. Patton Jr. in 1942 to prepare U.S. Army armored units to fight the Germans in the deserts of North Africa. If the tortoises survived the punishing Patton, they easily can weather an invasion by a few thousand weekending Marines.

Whether the Pentagon will muster the will to challenge the onslaught of lawsuits and protests, and take its case for relief from such idiotic encumbrances directly to the American people, remains to be seen. It thus far has taken the Neville Chamberlain approach ? attempting to appease critics by improving its stewardship of the millions of acres it manages and being a good neighbor to the communities crowding in on its once-remote outposts. The results have been entirely predictable.

Some of the lawsuits and protesters have been quiescent in the wake of Sept. 11 out of fear of appearing unpatriotic. But we have not seen the end of encroachment wars. And if ever there was a time to go on the offensive against environmental extremists and bring reasonable reforms to the ESA and other laws adversely impacting U.S. military readiness, it is now.

Sean Paige is a writer for Insight.

[conserve-it]

Overturn this and fast folks.

[proxy_user]

It is ridiculous to blame judges for enforcing silly laws when it is Congress that is passing them. Congress has the full authority to modify or repeal this law, or any other law.