Proposed Rule Fails to Protect Migratory Birds from Military Actions

June 07, 2004

Last week the Bush administration proposed a rule that would free the Department of Defense (DoD) from federal environmental regulations that protect migratory birds, and allow the military to make its own determination of whether its actions were causing harm to wildlife.

"It's the fox guarding the henhouse," Peter Galvin, conservation director for the Center for Biological Diversity, told BushGreenwatch. "When are they ever going to find on their own that their activities are causing a problem?"

The U.S. Fish and Wildlife Service rule, published in the June 2 Federal Register, allows for the "incidental taking" of migratory birds by the DoD during military readiness training. While it also requires DoD to develop "appropriate conservation measures" if proposed military activities would "have a significant adverse effect on a population of migratory bird species of concern," it allows DoD to determine whether any such adverse effects are occurring. [1]

The DoD has asserted that adhering to environmental protection laws compromises military training and readiness. However, a General Accounting Office report in 2002 found that the Pentagon could not substantiate this claim.

The bigger question, said Galvin, is why the DoD is allowed to operate under different rules in the first place. The Migratory Bird Treaty Act (MBTA), enacted in 1918, covers the United States' commitment to four international treaties -- with Canada, Mexico, Japan and Russia -- to protect numerous migratory birds and their habitats. But in 2002, Congress granted the DoD a temporary, one-year exemption from the MBTA under the premise that environmental regulations interfered with the military’s ability to ready itself for battle.

During that year, the administration was to come up with a plan to minimize the killing of migratory birds during military training exercises. The newly published rule was due out six months ago -- last December.

"Should DoD be exempt at all?" asked Galvin. "We think the answer is no. This rule is merely a euphemism for gutting environmental protections."

Until the new rule takes effect, the DoD will continue to benefit from its previous, blanket exemption.

The military’s push for an exemption stems from a case in which the U.S. military conducted bombing practice on an island in the Pacific that is a key nesting site for migratory birds, including frigatebirds, red-footed boobies and Pacific golden plovers. The public interest law firm Earthjustice successfully argued in federal court that the bombing exercises violated the MBTA.

The case further raised the ire of conservationists when the Pentagon argued in a legal brief that conservationists actually benefit from the military’s killing of birds because it helps make some species more rare -- and "bird watchers get more enjoyment spotting a rare bird than they do spotting a common one." [2]

President Bush has since nominated the attorney who made that argument, William Haynes II, to a seat on a federal appellate court.

To comment on the proposed rule, contact: DODMBTARULE@fws.gov. Comments are due by July 30, 2004.

[1] U.S. Fish and Wildlife Service press release, May 28, 2004.
[2] Center for Biological Diversity v Pirie, 191 F. Supp. 2d 161 (D.D.C., 2002).

Source: http://www.bushgreenwatch.org/mt_archives/000132.php


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Juni 2004

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