**The Sikes Act Improvement Act of 1997:**

**Examining the Changes For**

**The Department of Defense**

[Major Teresa K. Hollingsworth]{.smallcaps}[^1]

#### **I. INTRODUCTION**

The Sikes Act Improvement Act of 1997 (SAIA)[^2] was passed as Title
XXIX of the National Defense Authorization Act for Fiscal Year 1998.[^3]
These latest amendments to the 1960 Sikes Act[^4] levy significant new
requirements on the Department of Defense (DoD) and the military
departments[^5] in the area of natural resources management on military
installations. Involved in negotiations over several precursory bills,
the DoD and the military services began implementing many of the
requirements called for by the SAIA about a year before it passed.[^6]
More recently, the DoD has issued guidance to the military departments
addressing several of the requirements under the 1997 Amendments.[^7]
This article will examine the 1997 Amendments to the Sikes Act and the
implementing guidance, explore the legal issues raised, and discuss
their potential impact on the DoD natural resources management
programs.[^8]

**II. Background**

**A. Natural Resources on Military Lands**

The Department of Defense, the country's third largest land management
department,[^9] manages about 25 million acres of federal land.[^10] The
primary purpose of DoD lands, which are allocated among approximately
400 major military installations,[^11] is to meet operational and
training requirements of the military departments.[^12] However, the
lands also serve as habitat for numerous endangered species[^13] and
contain important cultural resources.[^14] In comparison to other
federal landholdings, military land, much of which is relatively
pristine,[^15] has "a disproportionate value in terms of
biodiversity."[^16] The U.S. Fish and Wildlife Service estimates that 19
million acres of DoD lands are manageable as habitat for fish and
wildlife.[^17] Additionally, "some of the military's lands are valuable
for grazing, agriculture, timber, and mining."[^18] Practically every
ecosystem found in the United States is represented on DoD lands,[^19]
illustrating the "wide range of training environments and strategic
locations that the military requires to maintain readiness."[^20]

The military's approach toward resources management, reflecting changes
in public policy, has matured since World War II and expanded to
incorporate technical and scientific innovation.[^21] In 1993,
recognizing the importance of environmental issues, the Secretary of
Defense created the Office of Environmental Security "to integrate
environmental considerations into defense policies and practices."[^22]
Among the goals of the office is to "be responsible stewards of the land
DoD holds in public trust."[^23] In 1994, during testimony considering
Sikes Act reauthorization, Ms. Sherri W. Goodman, the Deputy Under
Secretary of Defense for Environmental Security, announced that
ecosystem management represented the beginning of a "new chapter" of
military land management.[^24] According to the DoD policy published a
short time later, the goal of ecosystem management is "to ensure that
military lands support present and future training and testing
requirements while preserving, improving, and enhancing ecosystem
integrity."[^25]

**B. The Sikes Act (1960 -- 1986)**

The DoD credits the Sikes Act of 1960 as being "instrumental in helping
the Department manage its unique natural resources."[^26] The purpose of
the 1960 Act was for the Secretary of Defense to "promot\[e\] effectual
planning, development, maintenance, and coordination of wildlife, fish,
and game conservation and rehabilitation in military reservations."[^27]
The legislative history reveals that the 1960 Act had, as its unwitting
pilot program, an informal arrangement at Eglin Air Force Base (AFB)
dating to before 1949, whereby natural resources personnel collected
fees for hunting and fishing permits and used the money for restocking
and conservation efforts.[^28] This practice came under fire from the
Comptroller General because no legislation authorized the base to retain
the fees collected.[^29] The Sikes Bill of 1949[^30] ratified the
activity at Eglin AFB, and directed the Secretary of the Air Force to
"adopt suitable regulations for fish and game management in accordance
with a general plan to be worked out with the Secretary of the
Interior."[^31] Although the bill did not require the state to be a
party to the plan, the federal regulations were to avoid inconsistency,
to the extent possible, with applicable Florida laws and
regulations.[^32]

The Sikes Act of 1960 kept the focus on fish and wildlife conservation
but expanded the scope of the 1949 Sikes Bill to include all domestic
military reservations.[^33] Instead of a general plan, the Act called
for a "cooperative plan mutually agreed upon by the Secretary of
Defense, the Secretary of the Interior, and the appropriate state
agency."[^34] Overall, the Act "gave congressional recognition to the
significant potential for fish and wildlife management and recreation on
\[DoD\] lands."[^35]

The Sikes Act has undergone several amendments since its passage in
1960. The Act was amended for the first time in 1968 to authorize funds
and to expand the program to include "the enhancement of wildlife
habitat and the development of outdoor recreation facilities."[^36] In
1974, amendments mandated that the scope of the plans include fish and
wildlife habitat management, range rehabilitation, and the control of
off-road vehicle traffic.[^37] The Sikes Act was reauthorized in
1978[^38] and 1982. The 1982 amendments expanded the scope of the Act to
specifically include 'all species of fish, wildlife, and plants
considered threatened or endangered.'[^39] The next set of amendments,
in 1986,[^40] were drafted in partial response to a 1984 study assessing
natural resources management on Army installations.[^41] Essentially,
the 1986 amendments imposed multiple-use management principles on the
DoD, while recognizing the "paramount importance" of the military
mission.[^42]

###### The 1997 Amendments

In 1993, the Sikes Act came up for reauthorization.[^43] In the first
session of the 103^rd^ Congress, Representatives Gerry E. Studds[^44]
and Don Young[^45] introduced House Bill 3300,[^46] the Natural Resource
Management on Military Lands Act of 1993, a Bill to Amend the Sikes
Act.[^47] This marked the beginning of a long and arduous process that
ultimately culminated in the passage of the SAIA. The overarching
concern put forth by the bill's proponents was that "comprehensive
natural resource management is far from a reality on many
installations."[^48] The bill's sponsors blamed this shortcoming on the
lack of an enforcement mechanism within the existing Sikes Act.[^49]

In crafting a solution, the bill's drafters were particularly cognizant
of the need to ensure the implementation of natural resources management
plans "without obstructing the cooperative relationship that should
exist \[among\] DoD natural resource managers, the U.S. Fish and
Wildlife Service, and the state fish and wildlife agencies."[^50]
Generally, the revisions introduced by House Bill 3300 were to (1)
increase the scope of the plans from cooperative agreements for fish and
wildlife to integrated natural resources management plans (INRMPs),
"encompassing all natural resource management activities;"[^51] (2)
require the preparation and implementation of these plans for all
military installations in the United States, unless the Secretary of
Defense determined such a plan was inappropriate for a given
installation;[^52] (3) require a status report to Congress on the
implementation of the plans;[^53] and (4) institute a system of Notices
of Violation (NOVs) for noncompliance with the Act.[^54] These proposed
changes defined the battleground for DoD negotiators over the course of
the next few years until the 1997 public law was passed.

House Bill 3300 originally contained both criminal and civil penalties
for noncompliance.[^55] These "compliance teeth" were seen as necessary
by some proponents to elevate the priority of funding for the management
plans mandated by the Act. At a subcommittee hearing, a spokesman for
the National Wildlife Federation testified, "\[the DOD's\] own system is
based totally on reaction to noncompliance. If you do not have a notice
of violation, you do not have enforcement."[^56] The president of the
National Military Fish and Wildlife Association (NMFWA),[^57] calling
the compliance provisions the "heart and soul" of the bill, expressed
doubt in the DoD's ability to police its own regulatory programs.[^58]
The DoD did not support the criminal and civil penalties and eventually
negotiated language that "eliminated all oversight of DoD natural
resources programs by outside agencies."[^59] The new provisions called
for internal oversight and mandated compliance reports to Congress.[^60]

The Committee on Merchant Marine and Fisheries, to which House Bill 3300
was referred, reported favorably upon it after amending it to remove the
NOV provisions.[^61] Explaining its conclusion that enforcement
mechanisms were not necessary, the committee relied heavily on the DoD's
assurances that it would fund recurring projects and services.[^62] The
committee understood "recurring" activities to include the "production
of game for hunting and fishing, the production of food and timber
products, long-term implementation of endangered species programs,
wildlife recreation programs, and the regular monitoring of
wildlife."[^63] The committee emphasized its view that these
undertakings were "essential to the proper stewardship of military
lands."[^64] Although House Bill 3300 passed the House of
Representatives on September 12, 1994, it did not become law because no
action was taken in the Senate before the end of the 103^rd^
Congress.[^65]

On March 6, 1995, Congressmen Don Young, Gerry Studds, and Jim
Saxton[^66] introduced House Bill 1141,[^67] the Sikes Act Improvement
Amendments of 1995.[^68] This bill contained essentially the same
language agreed to during the 103^rd^ Congress. At a hearing on the bill
shortly after it was introduced, the president of the NMFWA conceded the
compliance and enforcement provisions "may not be necessary at this
time" based on the "mandatory language in the bill requiring Integrated
Natural Resources Management Plans (INRMPs) to be prepared and
implemented and \[the\] Department of Defense commitment to fund
preparation and implementation of \[INRMPs\]."[^69] The bill was passed
in the House by voice vote on July 11, 1995.[^70] The provisions of the
bill were incorporated into the House version of the National Defense
Authorization Act for fiscal year 1997.[^71] However, the provisions
again failed to become law because they were subsequently removed by the
conference committee.[^72]

In 1997, Congressmen Don Young and Jim Saxton co-sponsored House Bill
374,[^73] a Bill to Reauthorize and Amend the Sikes Act.[^74] This bill
contained the same provisions that passed in the House during the
104^th^ Congress, but were not acted upon in the Senate.[^75] This bill
was passed by the House and the Senate and, after conference committee
changes, was successfully attached to the National Defense Authorization
Act for fiscal year 1998.[^76]

> The 1997 Amendments pose several interesting issues and challenges for
> the military departments and their commanders. These include the
> extent to which outside agencies and the public may influence the
> content of the plans, whether the National Environmental Policy Act
> applies to the plans, and issues concerning funding and
> implementation. The requirements of the 1997 legislation can be fully
> understood only in the context of the several bills that went before
> and the positions negotiated by each interested party. Therefore, to
> provide a comprehensive overview, these issues will be discussed
> against the backdrop of their legislative history. To assess the
> impact of the Amendments on the military services, this paper will
> analyze the DoD and service guidance implementing the requirements of
> the SAIA.

###### III. CHALLENGES OF THE 1997 AMENDMENTS

**A. Mandatory Plans**

> Before the 1997 Amendments, the Sikes Act, by its terms, merely
> authorized (as opposed to required) the Secretary of Defense to,
>
> carry out a program of planning for, and the development, maintenance,
> and coordination of, wildlife, fish, and game conservation and
> rehabilitation in each military reservation in accordance with a
> cooperative plan mutually agreed upon by the Secretary of Defense, the
> Secretary of the Interior, and the appropriate state agency designated
> by the state in which the reservation is located.[^77]

In 1994, there were approximately 250 cooperative fish and wildlife
management plans in effect for military installations.[^78] Those in
favor of amending the statute, however, were dissatisfied with the
cooperative plans, both in scope and effect.[^79] The DoD earlier agreed
that it should undertake more comprehensive environmental planning. At a
hearing on House Bill 3300, Ms. Goodman pledged support for
ecosystem-based management on all military lands in general, and for
"the development and implementation of integrated natural resource
management plans for military installations" in particular.[^80]

As of March 1995, however, the existing cooperative plans were still a
source of dissatisfaction among the supporters of House Bill 1141. The
president of the NMFWA expressed his opinion that some of the so-called
plans were merely agreements "that provide for cooperation, rather than
management of resources."[^81] Furthermore, he estimated that less than
25 percent of the cooperative plans "fully meet the requirements of the
existing Sikes Act," and that fewer than 10 percent "are properly
integrated or address sustained military capability of the lands."[^82]

Amidst the sometimes heated debate and shortly before the 1997
Amendments passed, the DoD promulgated policy guidance that seemingly
predicted what would become law out of the pending legislation. DoD
Instruction 4715.3, entitled "Environmental Conservation Program,"
requires INRMPs be "prepared, maintained, and implemented for all lands
and waters under DoD control that have suitable habitat for conserving
and managing natural ecosystems."[^83] In response to the DoD guidance,
the Army updated its existing regulation,[^84] and the Air Force
promulgated a new instruction.[^85] Both services' guidance include
exhaustive definitions of what INRMPs must contain and direct how to
integrate them with other military plans.[^86] The Navy had addressed
INRMPs before the DoD Instruction was promulgated and did not update its
existing guidance.[^87] The Marine Corps also relied on its existing
guidance relating to "Multiple Land Use Management Plans," which are
similar to INRMPs.[^88]

About a year and a half after the DoD promulgated the instruction, the
1997 Amendments made the preparation and implementation of INRMPs
mandatory.[^89] Generally, the 1997 Amendments require that the
Secretary of Defense "carry out a program to provide for the
conservation[^90] and rehabilitation of natural resources on military
installations."[^91] More specifically, the SAIA demands that, "\[t\]he
Secretary of each military department shall prepare and implement an
integrated natural resources management plan for each military
installation . . . ."[^92]

Significantly, the term "INRMP" is not defined within the Amendments.
Legislative history indicates INRMPs represent an expanded and
comprehensive version of the cooperative plans, reflecting the goal of
proponents of the legislation that the DoD manage not only wildlife, but
"the whole realm of natural resources."[^93] However, a close look at
the SAIA reveals a predominant emphasis on wildlife interests.[^94] In
contrast, the DoD focuses on multiple uses, with no preference of one
use over another.[^95] The DoD Instruction defines INRMPs as "integrated
plans based, on the maximum extent practicable, on ecosystem management
that shows the interrelationships of individual components of natural
resources management . . . to mission requirements and other land use
activities affecting an installation's natural resources."[^96] The DoD
differentiates INRMPs from cooperative plans in that INRMPs require more
coordination and consultation and more comprehensive information.[^97]
Because of DoD's unbiased approach to natural resources management,
wildlife interest groups may challenge INRMPs as not fully conforming
with the terms of the SAIA.[^98]

Although the SAIA fails to provide a specific meaning for the term
INRMP, it does provide definitions that demarcate the applicability of
the Amendments. The term "military installation" which replaces
"military reservation" throughout the Sikes Act,[^99] is defined by the
Amendments as:

> \(A\) any land or interest in land owned by the United States and
> administered by the Secretary of Defense or the Secretary of a
> military department, except land under the jurisdiction of the
> Assistant Secretary of the Army having responsibility for civil works;
>
> \(B\) all public lands withdrawn from all forms of appropriation under
> public land laws and reserved for use by the Secretary of Defense or
> the Secretary of a military department . . . .[^100]

The legislative history reflects the intent of the proponents for the
definition to encompass "lands controlled and managed by National Guard
and Reserve components."[^101] The definition of military installation
found in the 1997 Amendments, however, falls short of being that
expansive. The DoD position is that the statutory definition, as a
matter of law, excludes state-owned National Guard lands, unless the
federal government is a lessee or holds some other legal interest in the
land.[^102]

The scope of the 1997 Amendments is limited in other respects as well.
The mandate for creating INRMPs applies only to installations "in the
United States,"[^103] making the Sikes Act inapplicable to installations
on foreign soil, though it does include installations on Guam, Puerto
Rico and on other territories and possessions of the U.S.[^104]
Furthermore, some military lands, although located in the U.S., will
nonetheless be excused from complying with the provisions of the Act
because "military installation" is defined to exclude land that is
"subject to an approved recommendation for closure under the Defense
Base Closure and Realignment Act of 1990."[^105] Overall, the Amendments
have the same applicability as the 1996 DoD Instruction governing the
development and implementation of INRMPs.[^106]

Another provision with the effect of narrowing the scope of the 1997
Amendments allows the Secretary of a military department to determine an
INRMP is inappropriate for a given installation where significant
natural resources do not exist.[^107] Congress, however, retained
oversight, requiring the Secretary of Defense to submit a report by
November 18, 1998, listing all military installations for which an INRMP
was deemed inappropriate and explaining the underlying reasons for each
determination.[^108] To provide some uniformity to the military
departments' conclusions that INRMPs were not necessary based on the
absence of significant natural resources, the DoD guidance directed
that:

> An installation will normally require an INRMP if it undertakes more
> than one of the following activities: fish and wildlife management;
> land management; forest management; natural resource-based outdoor
> recreation; on-the-ground military missions operations. An INRMP will
> normally be required if an installation undertakes any of the
> following: threatened and endangered species management; commercial
> forestry activities; hunting and fishing management.[^109]

The DoD guidance also stated that the acreage of an installation should
not by itself determine the need for an INRMP.[^110] Rather, the
conclusion that an INRMP is not required should reflect the specific
nature of an installation or may be justified by negative findings of a
biological survey.[^111]

Since the military departments had already imposed upon themselves the
requirement for completing and implementing INRMPs by the time the
amendments passed, the Act's mandate for INRMPs to be accomplished seems
superfluous. However, the Amendments constitute a legal requirement
where there was previously only a regulatory one, raising the specter of
litigation for perceived noncompliance.[^112] Under the Administrative
Procedure Act (APA)[^113] courts may review agency action at the behest
of any person[^114] "adversely affected or aggrieved by agency action
within the meaning of a relevant statute"[^115] and set aside that
action[^116] if it was "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law."[^117] In other words, if a
Department Secretary determined an installation did not have the
requisite significant natural resources to trigger the need for an
INRMP, an adversely affected party could sue.[^118] It is worth noting,
however, that courts traditionally give substantial deference to an
agency interpretation in this regard if it is reasonable.[^119]

###### B. Mutual Agreement of the Parties to the Plans

The new statutory obligation to complete the plans gives increased
meaning to the preexisting provision regarding the relationship among
the parties involved in preparing the plans. Like the previous Sikes
Act, the SAIA directs the Secretaries of the respective military
departments to prepare each plan "in cooperation with the Secretary of
the Interior, acting through the Director of the U.S. Fish and Wildlife
Service (USFWS), and the head of each appropriate state fish and
wildlife agency for the state in which the military installation
concerned is located."[^120] Another carry-over requirement is that "the
resulting plan for the military installation shall reflect the mutual
agreement of the parties concerning conservation, protection, and
management of fish and wildlife resources."[^121] Before the SAIA, the
Secretary of Defense was only "authorized,"[^122] not "required,"[^123]
to prepare and implement plans. This gave an installation commander
discretion to decide not to implement the plan or parts of the plan if
faced, for example, with a state agency that did not agree to the
plan.[^124]

One of the DoD's concerns with the SAIA was that the language making
INRMPs mandatory and retaining the requirement for mutual agreement
among the parties would lead installation commanders to believe state
agencies were given "unprecedented authority to 'veto' INRMPs."[^125]
Because this might make commanders feel pressured to change training
schedules and operations "to accommodate natural resources concerns"
raised by the state or federal fish and wildlife agencies,[^126] even
though such actions might adversely impact the mission or training
requirements, the DoD feared that the military's autonomy with respect
to installation lands would be usurped. As a result, the language in the
Amendments concerning the relationship with the federal and state
agencies was one of the major stumbling blocks during the
negotiations.[^127] The DoD's goal was to ensure that retaining the
language calling for "mutual agreement" did not diminish an installation
commander's authority to decide actions necessary to ensure and preserve
military preparedness.[^128]

In its subsequent implementing guidance, the DoD reassures installation
commanders and their planners that the primary purpose of INRMPs is to
"help installation commanders manage natural resources more effectively,
so as to ensure the installation lands remain available and in good
condition to support the installation's military mission."[^129] The
DoD's position that the Sikes Act "will enable the military departments
to take advantage of the expertise of the \[US\]FWS and state
\[agencies\]" without jeopardizing "an installation commander's
discretion to ensure the preparedness of the Armed Forces," is supported
by both the language of the statute and the legislative history.[^130]
The Amendments point out that nothing within them "enlarges or
diminishes the responsibility and authority of any state for the
protection and management of fish and resident wildlife."[^131]
Additionally, the amendments require, "to the extent appropriate and
applicable," that the plans provide for "no net loss in the capability
of military installation lands to support the military mission of the
installation."[^132] Legislative history from a prior House bill reveals
that this "no net loss" provision was meant to emphasize the primary use
of the plans, which was to enable military commanders to make best use
of the "military lands to ensure military preparedness."[^133] More
recently, less than a month before the SAIA passed, the legislators
again addressed the DoD's concerns:

> The conferees agree that reauthorization of the Sikes Act is not
> intended to expand the management authority of the USFWS or the state
> fish and wildlife agencies in relation to military lands. Moreover, it
> is expected that INRMPs shall be prepared to facilitate installation
> commanders' conservation and rehabilitation efforts that support the
> use of military lands for readiness and training of the armed
> forces.[^134]

In its implementing guidance to the military services, the DoD advises
military planners to share the entire INRMP with the other agencies,
with the goal of reaching mutual agreement as to the entire plan.[^135]
However, the DoD points out that mutual agreement is only *required*
with respect to those elements of the plan within the scope of the
agencies' legal authority "derived from a source other than the Sikes
Act, such as the Endangered Species Act."[^136] Therefore, if the USFWS
or a state fish and wildlife agency does not agree with the part of the
INRMP outside the scope of their authority,[^137] the installation
commander may finalize the plan over their objections and

"proceed to manage \[the\] natural resources in accordance with the
terms of the plan."[^138]

###### C. The National Environmental Policy Act and 

###### the Sikes Act Requirement for Public Comment

In addition to requiring consultation with the USFWS and the appropriate
state agency, the 1997 Amendments require the Secretary of each military
department to "provide an opportunity for the submission of public
comments" on the preparation of INRMPs.[^139] This provision is similar
to requirements found in the National Environmental Policy Act
(NEPA)[^140] and can be analyzed in conjunction with the issue of
whether NEPA applies to the preparation and implementation of INRMPs.
Determining whether NEPA applies in this regard is important for two
reasons. First, there is a litigation risk involved if the agency runs
afoul of NEPA. Second, NEPA compliance may suffice to meet the isolated
requirement for public comment in the Sikes Act Amendments. To determine
the applicability of NEPA to INRMP preparation and implementation, one
must first understand the statutory and regulatory requirements of NEPA.

*1. NEPA Background*

NEPA was passed in 1970, and was touted, at least publicly, by President
Nixon as "the herald of a new environmental era."[^141] NEPA contains
lofty goals, calling on the federal government to "use all practicable
means . . . to improve and coordinate \[f\]ederal plans, programs, and
resources" to allow the nation to:

> \(1\) fulfill the responsibilities of each generation as trustee of
> the environment for succeeding generations;
>
> \(2\) assure for all Americans safe, healthful, productive, and
> esthetically and culturally pleasing surroundings;
>
> \(3\) attain the widest range of beneficial uses of the environment
> without degradation, risk to health or safety, or other undesirable
> and unintended consequences;
>
> \(4\) preserve important historic, cultural, and natural aspects of
> our national heritage, and maintain, wherever possible, an environment
> which supports diversity and variety of individual choice;
>
> \(5\) achieve a balance between population and resource use which will
> permit high standards of living and a wide sharing of life's
> amenities; and
>
> \(6\) enhance the quality of renewable resources and approach the
> maximum attainable recycling of depletable resources.[^142]

This language is buttressed by a subsequent section which states,
"Congress authorizes and directs that, to the fullest extent possible .
. . the policies, regulations, and public laws of the United States
shall be interpreted and administered in accordance with the policies
set forth in this chapter . . ."[^143] This seems to direct
agencies[^144] to integrate the broad policy goals of NEPA into agency
action.

The Supreme Court of the United States, however, has determined that the
requirements of NEPA are procedural, not substantive. In *Robertson v.
Methow Valley Citizens Council*[^145] the Court held that, "NEPA itself
does not mandate particular results, but simply prescribes the necessary
process."[^146] The Court went on to say that whereas "\[o\]ther
statutes may impose substantive environmental obligations on federal
agencies . . . NEPA merely prohibits uninformed -- rather than unwise --
agency action."[^147] Although the Court did not ignore what it called
the "sweeping policy goals"[^148] of NEPA, it nonetheless relegated them
to the position of "strong precatory language."[^149] The purpose of
NEPA, according to the courts, is to help ensure the agency makes a
well-informed decision.[^150] Its purpose is not to mandate--or even to
review whether an agency should have made--one decision over another.

The purpose of NEPA, then, is not to direct an outcome, but to require
an agency to carry out a process.[^151] As phrased by the Council on
Environmental Quality (CEQ),[^152] NEPA "provides a mandate and a
framework for federal agencies to consider all reasonably foreseeable
environmental effects of their actions."[^153] As one author described,
"This was a departure from the historic practice of governmental
agencies deciding first what they wanted to do and then planning . . .
how to do it without regard to the possible, unforeseen
consequences."[^154] NEPA's "framework" takes the form of
'action-forcing' procedures,[^155] requiring all agencies of the federal
government to:

> include in every recommendation or report on proposals for legislation
> and other major \[f\]ederal actions significantly affecting the
> quality of the human environment, a detailed statement by the
> responsible official on:
>
> \(i\) the environmental impact of the proposed action,
>
> \(ii\) any adverse environmental effects which cannot be avoided
> should the proposal be implemented,
>
> \(iii\) alternatives to the proposed action,
>
> \(iv\) the relationship between local short-term uses of man's
> environment and the maintenance and enhancement of long-term
> productivity, and
>
> \(v\) any irreversible and irretrievable commitments of resources
> which would be involved in the proposed action should it be
> implemented.[^156]

This statutory language provides the basis upon which implementing
guidance has been built. The CEQ, which was established by NEPA[^157]
and is responsible for "ensuring that federal agencies meet their
obligations under Act," [^158] provided implementing guidance in the
form of regulations.[^159] Further implementation is handled at the
agency level.[^160] Accordingly, the DoD and the military departments
have promulgated implementing regulations for NEPA[^161] that have been
approved by the CEQ.[^162] In the event of a conflict between an
agency's regulations and the CEQ regulations, the latter normally take
precedence.[^163]

The statute and the regulations collectively guide an agency through the
NEPA process.[^164] The basic procedure of NEPA is that if the action
proposed by the agency is a major federal action significantly affecting
the quality of the human environment, then an environmental impact
statement (EIS) must be prepared.[^165] Essentially, the contents of an
EIS are those items outlined by the statute, quoted above.[^166] In its
broadest sense, the EIS "induces an ecological rationality that modifies
and may even negate the economic assumptions that have traditionally
underlain proposals with environmental impacts."[^167]

If the agency has insufficient information to determine whether or not
the action is major or significantly affects the quality of the human
environment, it must prepare an environmental assessment (EA)[^168] to
determine whether the environmental impact rises to the level that
warrants an EIS.[^169] If the EA suggests that the impact is not
significant, the agency must prepare a finding of no significant impact
(FONSI).[^170] Even if an EA reveals a significant impact, an agency may
include in its analysis a plan to employ mitigation measures[^171] to
minimize those effects and then publish a FONSI.[^172]

As opposed to focusing on a particular action, an agency may identify
ahead of time actions "which do not individually or cumulatively have a
significant effect on the human environment."[^173] Such actions, called
categorical exclusions (CATEXs), require neither an environmental
assessment nor an environmental impact statement.[^174] However, the CEQ
regulations require that agencies adopt procedures by which a normally
excluded action, that does in fact have a significant environmental
effect, will be subject to the procedural requirements of NEPA.[^175]
Each of the military departments have identified various CATEXs in their
regulations implementing NEPA.[^176]

The process of preparing and coordinating an EA, and to a greater extent
an EIS, can be very complex, costly, and time intensive.[^177]
Consequently, whether NEPA applies to the preparation and implementation
of INRMPs, and, if so, what process under NEPA is appropriate, become
important considerations. Indeed, such considerations take on greater
significance for the DoD because the agency is faced with statutory
deadlines for completing all INRMPs[^178] and is operating with a
limited budget for preparing and implementing the plans.[^179]

*2. NEPA and INRMPs*

The focus of the procedural mandates of NEPA is on "proposals for
major[^180] federal actions significantly affecting the quality of the
human environment."[^181] The overarching question of whether an INRMP
triggers NEPA's procedural requirements must be answered by the agency
concerned.[^182] A decision by an agency that NEPA does not apply to a
proposed federal action is subject to judicial review under the
Administrative Procedure Act.[^183] Circuit courts are split, however,
as to what standard of review is appropriate.[^184] Some courts[^185]
use the arbitrary and capricious standard,[^186] and others[^187] use
the less deferential standard of reasonableness.[^188]

Courts have recognized several instances in which an agency
determination that NEPA does not apply will be upheld. These include
agency action that was completed before the passage of NEPA,[^189]
situations where 'provisions in other statutes expressly exempt certain
activities from requiring preparation of an impact statement,'[^190]
situations where an agency's enabling statute has a 'clear and
fundamental conflict' with NEPA,[^191] agency actions that are purely
ministerial and non-discretionary,[^192] and actions where there is
minimal federal involvement.[^193] None of these, however, seem to apply
to INRMPs. Plans completed before NEPA passed would include cooperative
plans accomplished pursuant to the 1960 Act. These are, nevertheless,
subject to periodic review and alteration.[^194] Any such review taking
place after 1970 could not escape NEPA analysis merely because the plan
originated before the passage of NEPA.[^195]

Concerning INRMPs and environmental planning generally, natural
resources legislation applicable to the DoD and the military departments
does not conflict substantively with the requirements of NEPA.[^196]
Furthermore, the actions taken to prepare and implement INRMPs do not
seem "ministerial and non-discretionary."[^197] To the contrary, INRMPs
consider alternatives and establish priorities among ecosystem
management objectives.[^198] Similarly, the proposition that an INRMP
constitutes action characterized by minimal federal involvement is not
compelling.[^199] The CEQ regulations include as an example of federal
action, "adoption of formal plans, such as official documents prepared
or approved by federal agencies which guide or prescribe alternative
uses of federal resources, upon which future agency actions will be
based."[^200] Like the plans described by CEQ, INRMPs contain
"information needed to make appropriate decisions about natural
resources management" on federal lands.[^201] Clearly, the adoption of
an INRMP is "federal action" under NEPA.

An examination of the SAIA and its legislative history reveals no
indication that Congress intended to exempt the military from the
requirements of NEPA in preparing and implementing INRMPs. The Sikes Act
Amendments, which constitute the statutory requirement for completing
INRMPs, seem at least cognizant, if not inviting, of the NEPA process.
The 1997 Amendments give the military almost four years to complete all
required plans,[^202] which is arguably enough time to conduct the NEPA
process, and require that the public be given an opportunity to comment
on the plans, which is reminiscent of NEPA's public comment
provisions.[^203] The only other "exclusion" from the requirements of
NEPA is for activities covered by agency CATEXs.[^204] A review of the
military departments' NEPA regulations, however, indicates that the
activities listed are not typical of what might be undertaken pursuant
to a natural resources management plan.[^205]

If the military departments are not excused from complying with NEPA in
preparing and implementing INRMPs, they must determine what process
under NEPA is appropriate. The focus becomes whether the agency action
"significantly affects" the quality of the human environment. "Human
environment" is defined comprehensively to include "the natural and
physical environment and the relationship of people with that
environment."[^206] This CEQ regulatory guidance is mirrored by the
DoD's language in describing ecosystem management, the basis for
INRMPs.[^207] Clearly, the ecosystem management activities undertaken by
military departments to fulfill the Sikes Act requirements of preparing
and implementing INRMPs will affect the human environment.

The more difficult determination concerns the term "significantly,"
which is dispositive as to whether an EIS is required or if an EA and
FONSI are sufficient. "Significantly" is defined by CEQ in terms of
"context" and "intensity."[^208] Depending on the setting of the
proposed action, context can include the impact on society as a whole,
the affected region, or the locality involved.[^209] Since an INRMP is
site-specific to a given installation, its significance would most
likely be evaluated based on its long- and short-term effects only in
the location to which it applies.[^210]

Intensity refers to the "severity of impact"[^211] and includes
considerations of both beneficial and adverse impacts,[^212] unique
geographical characteristics,[^213] "the degree to which the action may
establish a precedent for future actions with significant effects or
represent a decision in principle about a future consideration,"[^214]
and "the degree to which the action may adversely affect an endangered
or threatened species or its habitat" as determined under the Endangered
Species Act.[^215] Depending on the natural resources management
activities called for by a given INRMP, it may have a significant effect
based on intensity. Many installations, for example, have unique
characteristics in terms of ecosystems represented or cultural resources
present.[^216] Additionally, some installations are home to endangered
or threatened species and contain critical habitat.[^217] Furthermore,
INRMPs can be said to "establish a precedent for future actions" in that
they are 5-year plans.

Given the requirements of NEPA, the definitions found in CEQ's
implementing regulations, and the potential impact of INRMPs, it seems
clear that many INRMPs will trigger the NEPA process. Although the 1996
DoD Instruction that mandated preparation of INRMPs was silent as to
whether or how NEPA applied, other DoD regulations, which implement
NEPA, are on point.[^218] The DoD's general position is that "when a
proposal is not one that normally requires an \[EIS\] and does not
qualify for categorical exclusion, the DoD Component shall prepare an
\[EA\]."[^219] The DoD offers a non-exhaustive list of considerations as
to whether an activity is one that normally requires an EIS. These
include whether the action has the potential to cause significant
degradation of environmental quality, present a threat or hazard to the
public, or result in a significant impact on protected natural or
historic resources.[^220] Unless the potential impact of an INRMP is
known from the start, it would be reasonable to first use an EA to
document a proposed INRMP. An EA includes a discussion of the need for
the proposed agency action, alternatives to the action, and the
environmental impacts of the proposed action and the alternatives.[^221]
It is then followed by either an EIS or a FONSI.[^222]

Before the passage of the 1997 Sikes Act Amendments, the military
departments promulgated guidance on INRMPs, which, to some extent, also
addressed NEPA compliance.[^223] For the Air Force and the Army, the
pre-existing guidance is still in effect, although the Air Force has
drafted policy guidance incorporating the new requirements of the
SAIA.[^224] Since the passage of the Amendments, the Navy has finalized
its policy guidance concerning the review of INRMPs under NEPA.[^225]

The current Army guidance details how the implementation of INRMPs will
comply with NEPA. As early as 1988, the Army published general NEPA
guidance that the development of natural resources management plans
normally requires the preparation of at least an EA.[^226] Later, in
guidance specific to INRMPs, the Army required that INRMPs receive
"appropriate environmental review according to NEPA . . . prior to
implementation of the plan's objectives."[^227] At that time, the Army
announced that the appropriate level of environmental documentation
would be determined on an "installation by installation basis,"
considering impacts on "endangered species, wildlife, riparian zones,
floodplains, wetlands, archeological and historic sites, off-road
vehicle use, sedimentation erosion, timber harvesting, and non-point
source pollution."[^228] The Army published additional guidance several
months before the 1997 Amendments passed, reiterating that its plans
will comply with NEPA. "INRMPs shall comply with NEPA process
requirements specified in AR 200-2."[^229] According to the Army's
supplemental guidance, "\[t\]he NEPA process is a decision-making tool
that ensures coordinated planning and identifies and discloses
environmental impacts to both the decision-maker and the public.
Implementation of the INRMP shall serve as the proposed action and NEPA
documentation should be scoped to address appropriate alternatives and
issues."[^230] Similar to the Army guidance, Navy policy is that
"\[d\]ocumentation under NEPA is required before approval of all new or
newly revised INRMPs."[^231] The Navy recognizes an EA may suffice
unless projects in the INRMP will have a significant environmental
impact, triggering the need for an EIS.[^232] In contrast to the Army
and Navy, the Air Force has little in the way of specific NEPA guidance
as to preparing and implementing INRMPs. The Air Force Instruction
simply states, "The implementation of an INRMP may constitute a
potentially significant federal action . . . \[and\] may require
consideration of potential environmental effects" under the NEPA
process.[^233]

*3. NEPA, INRMPs and the Sikes Act*

While not mentioning NEPA, the 1997 Amendments specifically require an
opportunity for the submission of public comments on (1) INRMPs
undertaken pursuant to the 1997 Amendments, and (2) INRMPs that result
from negotiations with the USFWS and the appropriate state agencies to
convert a cooperative plan, existing before the Sikes Act Amendments,
into an INRMP.[^234] The significance of the public comment provision is
that it removes the military departments' discretion to determine when
public participation is appropriate. Unlike NEPA, it applies regardless
of the environmental effect of an INRMP. Furthermore, this pervasive
requirement is a potential basis for litigation. Under the APA, courts
may set aside agency action "taken without adherence to all of the
procedures required by law."[^235] This opens the courthouse door to a
plaintiff alleging an INRMP was completed without allowing adequate
opportunity for public comment. It is unclear what the remedy would be,
but the courts could impose an injunction against implementing the plan
until the requisite public comment was accomplished.[^236]

Given the potential impact of the provision, it received surprisingly
little attention during the negotiation over the language of the various
bills. Although the public comment provision was present as early as
1993, in the first bill proposed to reauthorize the Sikes Act,[^237] the
legislative history is largely devoid of an explanation of the purpose
of language. Seemingly, however, it was embraced early on by the DoD. In
a 1994 hearing on House Bill 3300, Ms. Goodman testified that the DoD
"generally supports a number of amendments that would complement
development and implementation of integrated plans, including public
participation in the preparation of each."[^238] She echoed this
sentiment in her statement concerning House Bill 1141 in 1995,[^239] and
nothing indicates the DoD changed its position before the SAIA was
passed in 1997.

Cognizant of the public comment requirement, but reluctant to dictate
procedural details, the DoD leaves to the discretion of the military
departments the determination of how to meet the new public comment
requirement.[^240] Specifically, DoD guidance provides:

> The NEPA process could be used to meet the public review requirements
> of the SAIA, as well as to document the decision-making process for
> INRMP preparation and implementation in a detailed, thorough
> administrative record. Alternative provisions to solicit and evaluate
> public comments (e.g., notices in the local media, public meetings)
> should be developed if the NEPA process is not used. These provisions
> should be clearly and explicitly stated, and should ensure that all
> potentially interested parties have an opportunity to comment on the
> INRMP.[^241]

Each of the military departments has at least drafted guidance to
incorporate the SAIA requirements and DoD guidance into their policy and
procedures.[^242] The Air Force draft guidance echoes the DoD guidance
by stating that either the NEPA process or alternative provisions to
solicit and evaluate public comments may be used to meet the public
review requirements of the SAIA.[^243] Although it doesn't constitute
formal guidance, in a recent article the Army noted the SAIA public
comment requirement and articulated the rationale that an EA followed by
a FONSI is normally the appropriate course of action because, usually,
"INRMPs are derived to maintain and to sustain natural resources."[^244]
The authors pointed out, however, that if "implementation of the INRMP
will significantly impact the environment, the installation must produce
an EIS."[^245]

> Navy guidance, finalized after the 1997 Amendments, is more directive
> than that of the Army and Air Force. The Navy, more clearly than the
> other departments, has shifted its focus to the preparation of INRMPs
> in relation to the requirements under NEPA. The policy states:
>
> Documentation under NEPA is required before approval of all new or
> newly revised INRMPs. Under normal circumstances, an \[EA\],
> concluding in a \[FONSI\], will suffice. However, if the goals,
> objectives, methodologies (processes to achieve objectives) or
> specified projects identified in a draft INRMP will have a significant
> environmental impact, an \[EIS\] is required. An INRMP and an EA or
> EIS may be prepared and processed as one document . . . \[or\]
> separately.[^246]

The last quoted sentence provides authorization for the Marine Corps to
implement, as it requested, a practice of developing the INRMP as the
NEPA document.[^247]

It appears from the existing and draft guidance that the military will
use the NEPA process to prepare and implement INRMPs. The follow-up
question is whether the NEPA process, involving either an EIS or
EA/FONSI, will satisfy the separate Sikes Act public comment
requirement. Since the public comment requirement refers to the
development of plans, NEPA will only suffice if it is applied during the
preparation of INRMPs, as opposed to during the plans\' implementation.

Assuming NEPA is utilized in developing a plan, the next step is to
examine the public participation fostered by NEPA. Public involvement
under NEPA is extensive.[^248] Generally, CEQ regulations require
agencies to "provide public notice of NEPA-related hearings, public
meetings, and the availability of environmental documents so as to
inform those persons . . . who may be interested or affected."[^249] For
actions that have effects "primarily of local concern," which arguably
include an INRMP on a given military installation, the CEQ allows public
notice to be made through local newspapers or the media, direct
mailings, newsletters, posting of notices on and off site in the area,
and other similar means.[^250]

Under NEPA, the public comment procedures may be different depending on
whether an agency completes an EIS or an EA. Whereas the procedures for
involving the public during the EIS process are well-defined and
comprehensive,[^251] NEPA largely allows agencies to determine the
extent to which they involve the public during the production of an EA
and FONSI.[^252] CEQ regulations do, however, require agencies to inform
the affected public of a FONSI.[^253] The CEQ regulations also specify
circumstances under which the agency "shall make the FONSI available for
public review . . . for thirty days before the agency makes its final
determination whether to prepare an environmental impact statement and
before the action may begin."[^254] These include situations where the
proposed action is similar to one normally requiring an EIS, and where
the nature of the proposed action is "without precedent."[^255] It is
unclear whether INRMPs will invoke this review period. This
determination will have to be made by the military departments on an
installation-by-installation basis.

The military procedures for public involvement on EAs vary by service.
The Army regulations call for public involvement in the preparation of
EAs "whenever appropriate."[^256] The factors the Army considers when
determining the extent of public involvement are the, "(1) \[m\]agnitude
of the proposed project/action, (2) \[e\]xtent of anticipated public
interest, (3) \[u\]rgency of the proposal, and (4) \[a\]ny relevant
questions of national security classification."[^257] Additionally, Army
regulations require that any documents incorporated into the EA or FONSI
by reference be available for public review.[^258] Air Force NEPA
regulations also call for public involvement on EAs and FONSIs.[^259]
The extent of public involvement varies depending on the magnitude of
the proposed action and its potential for controversy.[^260] The Air
Force added to the CEQ's list of situations requiring the EA and draft
FONSI be made available for public review, to include proposed actions
that would be located in a floodplain or wetland and actions mitigated
to insignificance in the FONSI.[^261] Either or both of these could
subject a given INRMP to the 30-day review requirement. The Navy
regulations contain similar language to the other services concerning
the factors to consider to determine the extent of public
participation.[^262] In its supplemental guidance to the CEQ regulations
on public participation for EAs, the Navy encourages its commands to
"develop a plan to ensure appropriate communication with affected and
interested parties."[^263]

It appears, based on CEQ and agency guidance, future INRMPs developed
using the NEPA process, whether it concerns an EIS or an EA/FONSI, will
meet the obligatory public comment requirement under the Sikes Act. If,
however, the preparation of an INRMP does not trigger either an EA or an
EIS under NEPA, the military departments must nonetheless allow for
public comment to comply with the Sikes Act.[^264] To be prepared for
such a situation, the military departments will need to develop some
implementing guidance providing for new stand-alone public comment
procedures.

*4. Previously Existing Plans and the*

*Public Comment Requirement*

Plans already in effect at military installations when the SAIA passed
raise unique issues. These plans include cooperative plans developed
under the previous Sikes Act and, more recently, INRMPs created pursuant
to DoD guidance and in anticipation of the 1997 statutory requirements.
The SAIA states that for an installation with a cooperative plan in
effect as of the day before the enactment of the SAIA,[^265] the
Secretary of the military department concerned shall "complete
negotiations with the Secretary of the Interior and the heads of the
appropriate state agencies regarding changes to the plan that are
necessary for the plan to constitute an \[INRMP\]."[^266] The Amendments
require an opportunity for the submission of public comments on the
"changes to cooperative plans" that are proposed so that the plans
constitute INRMPs.[^267]

> INRMPs completed before the passage of the 1997 Amendments are not
> directly addressed by the SAIA. Legislators, however, were aware of
> these INRMPs and according to the legislative history, did not intend
> for existing INRMPs that meet the requirements of the 1997 Amendments
> to be reaccomplished.
>
> The conferees note that the military departments will have completed
> approximately 60 percent of the required integrated natural resources
> management plans by October 1, 1997. The conferees understand that
> most of these plans have been prepared consistent with the criteria
> established under this provision. In addition, the conferees note the
> significant investment made by the military departments in the
> completion of current integrated natural resources management plans.
> The conferees intend that the plans that meet the criteria established
> under this provision should not be subject to renegotiation and
> reaccomplishment.[^268]

Unfortunately, it is not clear what "the criteria established under this
provision" include. One important issue is whether the new public
comment requirement of the SAIA is one of these \"criteria.\" Although
each military service has guidance that calls for NEPA compliance, many
INRMPs completed before the 1997 Amendments were not accompanied by an
EA or EIS.[^269] Consequently, many existing INRMPs did not provide for
public comment. If the public comment requirement is considered to be
one of the requisite criteria, then these INRMPs cannot be
grandfathered, and must be reaccomplished to meet this requirement of
the SAIA. DoD has not, however, taken this approach.

After the 1997 Amendments passed, the DoD addressed the question of when
and how to revise existing cooperative plans and INRMPs.[^270] DoD
guidance on previously existing INRMPs states:

> Those INRMPs that were complete on or before November 18, 1997; that
> were prepared in cooperation with appropriate FWS and State fish and
> wildlife officials; and that meet the substantive requirements of the
> SAIA, need not be reaccomplished simply because they were not subject
> to public review, but may remain in effect until review is required in
> accordance with the SAIA.[^271]

The DoD guidance directs its component agencies to \"review all
cooperative plans in effect on November 17, 1997, and identify any
changes required to modify them to meet the criteria for INRMPs under
the SAIA.\" The guidance points out that while \"many existing
cooperative plans may meet the more stringent requirements for INRMPS
established by the SAIA . . . some existing plans may not.\" Relying on
the conference language that refers to INRMPs, the DoD directs its
components to "adhere to the Congressional intent to 'grandfather'
existing cooperative plans that embody the substantive requirements of
the SAIA for their remaining anticipated period of applicability (not to
exceed five years)."[^272] DoD guidance also highlights the overarching
deadline set by the SAIA that requires the Secretary of each military
department to prepare and begin implementing INRMPs for those
installations where an INRMP is appropriate by November 18, 2001.[^273]

## D. Implementation Issues

Another issue receiving significant attention throughout the
negotiations concerning the SAIA was how to ensure the INRMPs, once
finalized, would be implemented.[^274] This issue includes funding for
the plans themselves as well as the activities and projects called for
by the plans. Integrally related to implementation are the new reporting
requirements imposed by Congress to oversee how ardently the DoD and the
military departments comply with the terms of the 1997 Amendments.[^275]
As agency planners endeavor to create and implement plans that comply
with the requirements of the Amendments, agency attorneys must prepare
to defend against legal challenges to the plans.

*1. Mandatory Implementation of the Plans*

Historically, Congress has been disappointed with the DoD's efforts to
attain the goals of the Sikes Act.[^276] Although the language of the
statute prior to the 1997 Amendments did not mandate action by the
Secretary of Defense, Congress has continuously scrutinized the extent
to which the Secretary has fulfilled the terms of the Sikes Act.[^277]
The DoD's consistent failure to request funds under the Sikes Act has
long been a source of dissatisfaction in Congress, as recorded in the
legislative history of the 1978, 1982, and 1986 amendments.[^278] In his
1995 statement promoting House Bill 1141, Representative Saxton pointed
out that while authorization of appropriations under the Sikes Act
expired on September 30, 1993, "Congress has not appropriated any money
for the Sikes Act in over a decade."[^279]

The DoD's failure to fund conservation programs became central to the
debate over the language of the Amendments in 1994. Congressman Studds
introduced House Bill 3300 by noting, among other things, that "many
military installations have considered the requirements of the Sikes Act
optional and have not requested funding."[^280] Congressman Studds'
criticism that conservation programs were under-funded at a time when
the overall DoD environmental budget was increasing[^281] was echoed by
the Chairman of the Board of Directors of the National Wildlife
Federation.[^282] Calling the bill a "terrific investment for the
American people,"[^283] the chairman championed the bill for making
mandatory the requirement that military installations implement natural
resources management plans.[^284] The idea of budgeting for proactive
conservation measures in the present, instead of paying degrees of
magnitude more for clean-up and restoration in the future, was a
recurring theme in the lengthy process to amend the Sikes Act.[^285]

Focusing on funding, the president of the NMFWA testified in a 1995
hearing that the fiscal year 1995 DoD environmental budget allocated
ninety percent to restoration and compliance and ten percent to
prevention and conservation.[^286] More specifically, he pointed out
that the DoD spent about 2.2 percent of its environmental budget at that
time for conservation programs.[^287] About one percent of this amount
consisted of appropriations under the Legacy Resource Management Program
(Legacy),[^288] created by Congress in 1991.[^289] The funds provided
under the Legacy program have been used throughout the DoD for
conservation and restoration projects.[^290] However, this source of
funds is not a panacea for those who want more money spent on
conservation efforts. Although the Legacy program provided a much-needed
infusion for "historically low stewardship funding," it was not meant to
serve as a long-term funding source.[^291]

When asked during a 1994 hearing considering House Bill 3300 what the
barriers were to full implementation of existing cooperative plans, Ms.
Goodman cited a lack of adequate fiscal resources to meet conservation
needs, and a lack of sufficient numbers of trained resources management
personnel.[^292] She went on to describe the competition that exists for
funds to fulfill not only other environmental needs but also other
mission priorities.[^293] Ms. Goodman touted a policy statement she
issued asking military departments to give consideration to natural and
cultural resources compliance requirements equal to that given other
environmental requirements.[^294] She stated that every military
department has a separate budget item for conservation, allowing for the
"identification, monitoring and funding of natural and cultural
resources requirements."[^295] Ms. Goodman indicated that the DoD was
creating a funding "prioritization system" to identify "urgent natural
resource needs" and would fund them accordingly.[^296] Under this
system, she reported, the preparation and implementation of INRMPs would
be "among the highest priorities for funding."[^297]

Within the DoD, the priority of funding requirements is the key
component to determining what items are and are not ultimately funded.
During the hearings on the Sikes Act Amendments, a much berated culprit
for DoD's funding priorities and the resulting lack of money for
conservation activities was Office of Management and Budget (OMB)
Circular A-106.[^298] Under the circular's terms, "priority for funding
goes to installations that are (or soon will be) in physical
noncompliance with the law, have received a Notice of Violation from a
federal or state agency, or have signed a compliance agreement or
consent order."[^299]

The DoD's environmental budgeting priorities, based on OMB Circular
A-106, are found in its 1996 instruction.[^300] The DoD divides
activities requiring funding into four prioritized
classifications.[^301]

> Class 0: Recurring Natural and Cultural Resources Conservation
> Management Requirements.
>
> Includes activities needed to cover the recurring administrative,
> personnel, and other costs associated with managing DoD's conservation
> program that are necessary to meet applicable compliance requirements
> (Federal and State laws, regulations, Presidential Executive Orders,
> and DoD policies) or which are in direct support of the military
> mission.
>
> Class I: Current Compliance.
>
> Includes projects and activities needed because an installation is
> currently out of compliance (has received an enforcement action from a
> duly authorized Federal or State agency, or local authority); has
> signed a compliance agreement or has received a consent order; has not
> met requirements based on applicable Federal or State laws,
> regulations, standards, Presidential Executive orders, or DoD
> policies. . . . Class I also includes projects and activities needed
> that are not currently out of compliance (deadlines and requirements
> have been established by applicable laws, regulations, standards, DoD
> policies, or Presidential Executive orders, but deadlines have not
> passed or requirements are not in force) but shall \[sic\] be if
> projects or activities are not implemented in the current program
> year.
>
> Class II: Maintenance Requirements.
>
> Includes those projects and activities needed that are not currently
> out of compliance (deadlines or requirements have been established by
> applicable laws, regulations, standards, Presidential Executive
> orders, or DoD policies but deadlines have not passed or requirements
> are not in force) but shall \[sic\] be out of compliance if projects
> or activities are not implemented in time to meet an established
> deadline beyond the current program year.
>
> Class III: Enhancement Actions. Beyond Compliance.
>
> Includes those projects and activities that enhance conservation
> resources or the integrity of the installation mission, or are needed
> to address overall environmental goals and objectives, but are not
> specifically required under regulation or Executive order and are not
> of an immediate nature.[^302]

The instruction directs that all natural and cultural resources
compliance requirements be categorized based on these classes.[^303] The
instruction further mandates that, "\[a\]ll projects in Classes 0, I,
and II shall be funded consistent with timely execution to meet future
deadlines."[^304] Expounding on each of the classes, the instruction
lists "planning" under Class I, giving INRMPs as an example.[^305]

> It is clear from the DoD Instruction that the INRMPs themselves are
> "must fund" items. However, at least some of the projects or
> activities contained within an INRMP may fall into Class III and be
> difficult to fund, such as:
>
> \(1\) Community outreach activities, such as "Earth Day" and "Historic
> Preservation Week" activities;
>
> \(2\) Educational and public awareness projects, such as interpretive
> displays, oral histories, "watchable wildlife" areas, nature trails,
> wildlife checklists, and conservation teaching materials;
>
> \[3\] Restoration or enhancement of cultural or natural resources when
> no specific compliance requirement dictates a course or timing of
> action; and
>
> \[4\] Management and execution of volunteer and partnership
> programs.[^306]

Although the SAIA does not directly address the DoD's funding priority
scheme, it contains two provisions aimed at lessening the budget woes of
the military departments. One provision was included to "facilitate the
execution of seasonal conservation projects."[^307] It allows that
"funds appropriated to \[the DoD\] for a fiscal year may be obligated to
cover the cost of goods and services provided under a cooperative
agreement . . . during any 18-month period beginning in that fiscal
year, without regard to whether the agreement crosses fiscal
years."[^308] The second provision was the deletion of the requirement
for cost sharing and cost matching.[^309] This provides alternatives to
natural resources managers who previously used "traditional contracting"
for projects,[^310] and paves the way for groups that could not
otherwise afford a matching cost contribution to participate with
projects.[^311] In response to the first provision, the DoD guidance
advises the military departments to "develop policies that delegate
cooperative agreement authority to installation level and convey the
authority to obligate funds beyond the current fiscal year."[^312] The
DoD guidance does not otherwise address the SAIA or funding priorities,
and there is nothing to indicate DoD will alter the budget guidance
found in its 1996 instruction[^313] in response to the SAIA.

*2. Reporting Requirements*

Central to the implementation requirements of the Sikes Act and related
to funding issues is the recurring reporting requirement found in the
1997 Amendments.[^314] This requirement for a report, due on March 1 of
each year,[^315] can be traced to the notice of violation (NOV)
provision that first appeared in House Bill 3300.[^316] The NOV
provision, which served as a device to raise natural resources
conservation issues to a high enough priority level so they would be
funded,[^317] was dropped based largely on the assurances of the DoD
that INRMPs would be a priority.[^318] Even so, instead of just deleting
the NOV provision, Congress replaced it with a comprehensive reporting
requirement.[^319] Undergoing only minor alterations throughout the
several foregoing bills, the reporting provision was enacted as follows:

> Not later than March 1 of each year, the Secretary of Defense shall
> review the extent to which \[INRMPs\] were prepared or were in effect
> and implemented in accordance with this title in the preceding year,
> and submit a report on the findings of the review to the
> committees.[^320] Each report shall include:
>
> \(A\) the number of \[INRMPs\] in effect in the year covered by the
> report, including the date on which each plan was issued in final form
> or most recently revised;
>
> \(B\) the amount expended on conservation activities conducted
> pursuant to the plans in the year covered by the report; and
>
> \(C\) an assessment of the extent to which the plans comply with this
> title.[^321]

Designed to ensure the DoD plans and procedures comply fully with the
Sikes Act Amendments, this reporting provision serves essentially the
same purpose as the NOV provision.[^322] As the president of the NMFWA
described:

> The reports submitted to Congress will provide the public with a clear
> picture of Defense's commitment to conservation of the natural
> resources and lands under its control. It is our wish that Congress
> never has to resort
>
> to fines to force compliance with this common sense Act. Money spent
> on punitive fines is just money diverted from vital Defense programs,
> such as this one.[^323]

The first two pieces of information to be reported, the number of plans
and the monetary amount spent, are easily determined and provide an
objective view of the DoD's progress in fulfilling the basic mandates of
the Act--to prepare and implement INRMPs. Conversely, the third piece of
information, an overall assessment of the extent to which INRMPs comply
with the 1997 Amendments, is more subjective and requires further
interpretation as to what exactly must be reported. In guidance to the
military departments on how to respond to this query, the DoD instructed
them to answer yes or no to the following questions for each INRMP: "(1)
\[w\]hether the INRMP was coordinated with the \[US\]FWS and appropriate
State fish and wildlife agencies; and (2) \[w\]hether the INRMP has a
current list of projects or methodologies essential to implement the
plan's objectives for the next fiscal year."[^324] This information
corresponds to the statutory requirements for mutual agreement and
mandatory implementation of the INRMPS, respectively. With regard to the
second question, the DoD's reference to a "list of projects or
methodologies" seems to indicate that implementation includes a subset
of projects, taken from all the possible projects listed or described in
the INRMP.[^325] In other words, the DoD considers an INRMP
"implemented," even if not everything called for in the plan is funded.

A different opinion of what is meant by "implementation" is held by
NMFWA. NMFWA interprets the statutory language, "shall prepare and
implement an \[INRMP\],"[^326] as a requirement to "conduct all the
projects and activities in the plan, not just sign the plan."[^327]
NMFWA goes on to say, "\[o\]nce signed, the INRMPs should take on the
funding status of any similar, interagency compliance agreement (Class I
or II)."[^328] NMFWA is joined in its position by the National Wildlife
Federation (NWF). At a committee hearing on House Bill 3300, an NWF
spokesman expressed fear the military would ignore the plans and
continue to fund environmental requirements on a compliance-oriented
basis instead of a proactive conservation-oriented one.[^329] Calling
the required implementation of the INRMPs "perhaps the greatest overall
improvement in this revision of the Sikes Act," he characterized the
implementation requirement as the solution to the problem that "all too
often, good planing efforts have sat on the shelf awaiting
implementation funding."[^330]

The reason for these differing views seems to be different answers to
this question: How many of the items contained within an INRMP must be
funded to constitute "implementation" of the plan.[^331] The more
moderate approach taken by the DoD in its guidance seems more reasonable
than that taken by NMFWA, in that it will almost certainly be impossible
to immediately fund every action or project contained in a given INRMP.
The genesis of the DoD approach can be seen in early testimony to
Congress by Ms. Goodman.

> Mr. McCurdy: Does the Department consider that once a\[n
> installation\] commander has accepted a resource management plan,
> there is a commitment to fund and implement the plan's elements?
>
> Ms. Goodman: An effective resource management plan is a dynamic,
> comprehensive document. It should also be flexible, able to
> accommodate changing circumstances and requirements. We believe that
> a\[n installation\] commander should plan to implement
> compliance-based requirements of an integrated natural resource
> management plan with the same priority as all other environmental
> compliance requirements. Other plan elements should be funded whenever
> possible, to enhance resource stewardship. However, we believe that
> for these non-critical elements the plan should serve as the guidance
> document which it is intended to be, rather than as an absolute
> mandate to commit funds. The plans provide visibility to the
> conservation requirements. However, installation commanders must have
> the flexibility to establish priorities that support mission
> requirements.[^332]
>
> In its guidance, the DoD has linked compliance to two discreet pieces
> of information corresponding to mutual agreement and mandatory
> implementation of the INRMPs. However, the DoD fails to mention other
> requirements of the Sikes Act that may be considered compliance
> assessors. For example, the Act specifically delineates ten required
> elements of INRMPs:
>
> Consistent with the use of military installations to ensure the
> preparedness of the Armed Forces, each \[INRMP\] prepared under \[this
> Title\] shall, to the extent appropriate and applicable, provide for:
>
> \(A\) fish and wildlife management, land management, forest
> management, and fish- and wildlife-oriented recreation;
>
> \(B\) fish and wildlife habitat enhancement or modifications;
>
> \(C\) wetland protection, enhancement, and restoration, where
> necessary for support of fish, wildlife, or plants;
>
> \(D\) integration of, and consistency among, the various activities
> conducted under the plan;
>
> \(E\) establishment of specific natural resource management goals and
> objectives and time frames for proposed action;
>
> \(F\) sustainable use by the public of natural resources to the extent
> that the use is not inconsistent with the needs of fish and wildlife
> resources;
>
> \(G\) public access to the military installation that is necessary or
> appropriate for the use described in subparagraph (F), subject to
> requirements necessary to ensure safety and military security;
>
> \(H\) enforcement of applicable natural resource laws (including
> regulations);
>
> \(I\) no net loss in the capability of military installation lands to
> support the military mission of the installation; and
>
> \(J\) such other activities as the Secretary of the military
> department determines appropriate.[^333]

Currently, the DoD does not require its component departments to report
on how well their INRMPs meet these statutory requirements in order to
assess their compliance with the 1997 Amendments. The DoD Guidance does,
however, specifically address subparagraphs (G) and (I) above. Quoting
DoDI 4715.3, the Guidance reminds its component agencies that \"INRMPs
shall describe areas appropriate for public access.\" As for the \"no
net loss\" provision, DoD Guidance states:

> Threats to mission land use shall be identified and addressed in
> INRMPs. Appropriate management objectives to protect mission
> capabilities of installation lands (from which annual projects are
> developed) should be clearly articulated in the process and should be
> high in the INRMP resourcing priorities. The effectiveness of the
> INRMP in preventing \"net loss\" shall be evaluated annually. There
> may be, however, instances in which a \"net loss\" may be unavoidable
> in order to fulfill regulatory requirements other than the SAIA, such
> as complying with a biological opinion under the provisions of the
> Endangered Species Act or the protection of wetlands under the
> provisions of the Clean Water Act. Loss of mission capability in this
> instance is beyond the scope and authority of the SAIA.[^334]

Although the DoD Guidance draws attention to the public access and no
net loss provisions, it does not impose corresponding reporting
requirements for the purposes of evaluating plan implementation.[^335]

*3. Facing Legal Challenges*

As discussed above, the Sikes Act Amendments constitute a statutory
mandate where there was previously only departmental regulatory
guidance.[^336] This has enhanced the level of attention INRMPs receive
from the DoD and may serve as a catalyst for increased public
participation as well. The Amendments may also precipitate judicial
challenges to the content or implementation of the plans.

A recent Supreme Court case, decided on the issue of ripeness, is
instructive as to what factors will weigh in the government's favor when
faced with a legal challenge to an INRMP. The case addresses the
question of when will a court review a natural resources management plan
to assess its conformity with the underlying statute. As such, the case
serves as guidance on how to develop and implement INRMPs.

In *Ohio Forestry Association, Inc. v. Sierra Club*,[^337] the Sierra
Club challenged a land resource management plan (LRMP) developed by the
U.S. Forest Service pursuant to the National Forest Management Act of
1976 (NFMA).[^338] The NFMA, passed after the landmark Monongahela
decision,[^339] amounted to a new organic act for the Forest
Service.[^340] The NFMA "addresse\[s\] on-the-ground forestry issues
with a specificity unthinkable in earlier times."[^341] In part, the
NFMA requires the Secretary of Agriculture to "'develop, maintain, and,
as appropriate, revise land and resource management plans for units of
the National Forest System.'"[^342] Like DoD's INRMPs, the Forest
Service uses LRMPs to "'guide all natural resource management
activities,'" including use of land for "'outdoor recreation, range,
timber, watershed, wildlife and fish, and wilderness.'"[^343]

In *Ohio Forestry Association*, the Sierra Club contended that the plan
permitted too much logging and too much clearcutting, in violation of
the NFMA.[^344] In a unanimous decision, the Court held the dispute was
not ripe for court review.[^345] According to the Court, the purpose of
the ripeness requirement is "to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the
agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the
challenging parties."[^346]

The Court found that the LRMP in question, developed for the Wayne
National Forest in southern Ohio, "sets logging goals, selects the areas
of the forest that are suited to timber production, and determines which
'probable methods of timber harvest' are appropriate."[^347] In fact,
the plan is a precondition to logging.[^348] However, the Court
concluded the case was not yet justiciable because the plan did not, by
its terms, "authorize the cutting of any trees."[^349] The procedural
steps required before proceeding with an actual timber harvest included
conducting NEPA analysis and ensuring the discrete project was
consistent with the plan.[^350]

Explaining its rationale, the Court identified from its jurisprudence
two considerations relevant in determining ripeness: "'fitness of the
issues for judicial decision' and the 'hardship to the parties of
withholding court consideration.'"[^351] The Court further dissected
these into three issues concerning the LRMP: "(1) whether delayed review
would cause hardships to the plaintiffs, (2) whether judicial
intervention would inappropriately interfere with further administrative
action, and (3) whether the courts would benefit from further factual
development of the issues presented."[^352]

The Court concluded that the LRMP did not have enough impact on its own
to create a justiciable issue. The Court reasoned that the plan's
provisions "do not command anyone to do anything or to refrain from
doing anything; they do not grant, withhold, or modify any formal legal
license power or authority; they do not subject anyone to any civil or
criminal liability; they create no legal rights or obligations."[^353]
The Court refused to embark upon "time-consuming judicial consideration
of the details of an elaborate, technically based plan . . . without the
benefit of the focus that a particular logging proposal could
provide."[^354]

INRMPs, like LRMPs, recommend procedures for managing natural resources.
Specifically, INRMPs provide for natural resources management "that is
compatible with the installation mission, satisfies legal requirements,
and is consistent with ecosystem management principles and
guidelines."[^355] INRMPs identify the types and locations of actions
that may affect natural resources and prioritize those actions required
to implement the goals and objectives of the plan.[^356] Additionally,
both INRMPs and LRMPs are subject to periodic review and revision.[^357]

Given the recent Supreme Court decision and the similarities between
LRMPs and INRMPs, if faced with a legal challenge that an INRMP does not
comply with the Sikes Act Amendments, a key argument for DoD attorneys
to make is that the issue is not ripe for judicial review.[^358] The
argument will be most persuasive if agency attorneys can enumerate the
procedural steps required before the challenged project or projects
listed within the plan can be implemented. The agency attorneys will
also want to argue that immediate judicial review could hinder agency
efforts to "refine its policies," through revision of the plan or
through application of the plan in practice.[^359] As the Court pointed
out in *Ohio Forestry Association*, "premature review 'denies the agency
an opportunity to correct its own mistakes and to apply its
expertise.'"[^360] Plaintiffs may argue, as they did in *Ohio Forestry
Association*, that "it will be easier, and certainly cheaper, to mount
one legal challenge against the Plan now, than to pursue many challenges
to each site-specific . . . decision to which the Plan might eventually
lead."[^361] Once again, the Supreme Court has provided agency counsel's
argument.

> \[T\]he Court has not considered this kind of litigation cost-saving
> sufficient by itself to justify review in a case that would otherwise
> be unripe. The ripeness doctrine reflects a judgment that the
> disadvantages of a premature review that may prove too abstract or
> unnecessary ordinarily outweigh the additional costs of--even
> repetitive--post-implementation litigation.[^362]

As long as the "harm" raised by the plaintiffs is not caused by the
plan, but by some remote future action to be taken based on the plan, a
challenge based on that harm will not be ripe for judicial review. If,
however, the plan itself results in harm, the result will most likely be
different. For example, in *Ohio Forestry Association*, the Sierra Club
argued that under the LMRP many "intrusive" activities (such as opening
trails to motorcycles or using heavy machinery) would be conducted
"'without any additional consideration of their impact on wilderness
recreation.'"[^363] Additionally, Sierra Club pointed to actions that
would not take place on land designated for logging, such as building
additional hiking trails.[^364] The *Ohio Forestry Association* Court
did not consider these arguments because they had not been raised in the
lower court.[^365] Dicta indicates, however, that had these facts been
alleged appropriately, the analysis would have been "significantly
different."[^366]

The implication of *Ohio Forestry Association* for INRMPs is that any
actions that can take place, or fail to take place, based solely on the
plan itself will be ripe for legal challenge as soon as the plan is
finalized. Therefore, to avoid a challenge on the more complicated,
controversial, or long-range actions, planners may want to highlight
within the plan the additional procedures that must take place before
those actions can be implemented. If the plan is prepared in concert
with NEPA analysis, the NEPA documentation should discern those actions
that will take place automatically from those requiring further
implementing steps. This will help raise public awareness to impending
activities and may lead to dispute resolution before the plan is
finalized.

# **IV. CONCLUSION**

> The 1997 Amendments to the Sikes Act pose interesting legal challenges
> to the DoD and the military departments. The statutory provisions take
> away much of the discretion the DoD previously enjoyed and create
> vulnerabilities to judicial scrutiny previously unknown. Although the
> four years of negotiating the language of the Act brought the DoD
> closer to its desired result, ambiguities and uncertainties still
> exist. For example, the provision calling for public comment seems to
> have been overlooked during the protracted negotiations; its potential
> impact underestimated. Another difficult issue is what is meant by
> "mandatory implementation." Despite the SAIA's mandate that INRMPs be
> implemented, the journey of the specific proposals contained in those
> plans through the defense budgeting and funding system may still be a
> long one. Another daunting task is that of reaccomplishing preexisting
> plans to comply with the SAIA. Additionally, whatever NEPA
> documentation is required to complete the plans will potentially
> consume not only the statutory clock, which is ticking toward a year
> 2001 deadline, but also the defense environmental budget. One thing
> does seem clear: the issues that arise are best addressed early by the
> military departments. Otherwise, the military departments may be faced
> with unpopular resolutions handed down from either Congress, as it
> reviews reports on the military's progress in implementing the SAIA or
> from possibly less sympathetic arbiters, the courts.

[^1]: ^^ *Major Hollingsworth (B.S., United States Air Force Academy;
    M.B.A., Troy State University; J.D., University of Florida; LL.M.,
    George Washington University) is the Chief of Air Compliance in the
    Air Force Legal Service Agency\'s Environmental Law and Litigation
    Division in Washington, D.C. She is a member of the Florida State
    Bar.*

[^2]: This article will use the terms SAIA, 1997 Amendments, and Sikes
    Act Amendments interchangeably.

[^3]: Sikes Act Improvement Act of 1997, Pub. L. No. 105-85, 111 Stat.
    1629 (1997).

[^4]: 16 U.S.C.A. § 670a (1985) (amended 1997).

[^5]: This article will use the terms military departments, military
    branches, military services, and services interchangeably.

[^6]: *See infra* notes 82-87 and accompanying text.

[^7]: Memorandum from the Deputy Undersecretary of Defense
    (Environmental Security) to the Deputy Assistant Secretaries of the
    Army, Navy, and Air Force and the Director of the Defense Logistics
    Agency, Subject: Implementation of Sikes Act Improvement Amendments
    (September 21, 1998) \[hereinafter DoD Guidance\].

[^8]: The scope of this paper does not extend to a discussion of general
    conformity under the Clean Air Act (*see* 42 U.S.C.A. § 7506(c)
    (1995 & Supp. 1998)), which may impact activities contained within
    Integrated Natural Resource Management Plans.

[^9]: *Department of Defense and Endangered Species Act:* *Hearing
    Before the House of Representatives Comm. on Resources*, 104^th^
    Cong. (1996) (statement of Ms. Sherri W. Goodman, Deputy Under
    Secretary of Defense for Environmental Security, Apr. 17, 1996)
    \[hereinafter Goodman, Apr. 17, 1996\]. *Cf*. L. Peter Boice,
    *Defending Our Nation [and]{.underline} Its Biodiversity*,
    [Endangered Species Bull]{.smallcaps}. (Department of the
    Interior/Fish and Wildlife Service, Washington, D.C.), Jan./Feb.
    1997, at 4 \[hereinafter Boice\] (stating the Department of Defense
    is the nation's fifth largest federal land management department).

[^10]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. on Armed Services*,
    103^rd^ Cong. 147-48 (1994) (statement of Ms. Sherri W. Goodman,
    Deputy Undersecretary of Defense for Environmental Security, June
    29, 1994) \[hereinafter Goodman, June 29, 1994\]. "The National
    Guard and Reserve components manage approximately one million acres
    on over 80 sites in 54 States and Territories." *See* H.R. [Rep.
    No]{.smallcaps}. 104-107(II) (1995). For a discussion of whether the
    SAIA applies to state-owned National Guard lands, see *infra* notes
    100-101 and accompanying text.

[^11]: Goodman, Apr. 17, 1996, *supra* note 8. *Cf.* Boice, *supra* note
    8 (asserting the DoD has more than 425 major military
    installations).

[^12]: Department of Defense Instruction 4715.3, Environmental
    Conservation Program ¶ D(1)(d) (May 3, 1996) \[hereinafter DoDI
    4715.3\].

    > DoD land is needed to support readiness, testing of new weapon
    > systems, testing of munitions, deployment of weapon systems, and
    > combat training exercises. Specific and unique natural features of
    > the land are crucial to military readiness. To have the ability to
    > deploy and fight successfully anywhere in the world, the armed
    > forces must train in a wide variety of climatic and terrain
    > conditions. Accordingly, training areas are located throughout the
    > United States on grasslands, deserts, coastal areas, forests, and
    > tundra. For example, desert environments are used for maneuvers
    > that involve large, mechanized battalions; coastal zones and
    > beaches provide the setting for missile launches and amphibious
    > landings; forested areas are essential for small arms combat
    > training; and large open areas are needed to accommodate
    > air-to-ground bombing ranges.

    Goodman, Apr. 17, 1996, *supra* note 8.

[^13]: J. Douglas Ripley & Michele Leslie, *Conserving Biodiversity on
    Military Lands*[, Fed. Facilities Envtl. J.,]{.smallcaps} Summer
    1997, at 93, 95 \[hereinafter Ripley & Leslie\] (estimating over 200
    species listed under the Endangered Species Act as well as 350
    candidate species inhabit DoD lands). *See, e.g.,* Thomas H. Lillie
    & J. Douglas Ripley, *Conservation Issues*, 18 [Nat. Areas
    J.]{.smallcaps} 73, 74 (1998) \[hereinafter Lillie & Ripley\]
    (describing some of the more well-known cases of endangered species
    inhabiting military land, such as the red-cockaded woodpecker at the
    Army's Fort Bragg, North Carolina, and the Sonoran pronghorn
    antelope at the Goldwater Air Force Range in Arizona). *See also*
    *Fiscal Year 99 Department of the Navy Environmental Budget: Hearing
    Before the Subcomm. on Readiness of the Senate Comm. on Armed
    Services*, 105th Cong. (1998) (statement of Mr. Robert B. Pirie,
    Jr., Assistant Secretary of the Navy for Installations and
    Environment) (stating federally designated critical habitats exist
    on four Navy and three Marine Corps installations).

[^14]: Goodman, June 29, 1994, *supra* note 9.

[^15]: *See* [Department of Defense, Commander's Guide to
    Biodiversity]{.smallcaps} (1996).

[^16]: Ripley & Leslie, *supra* note 12, at 95. The authors plotted the
    number of acres held by federal agencies in relation to the presence
    of species listed under the Endangered Species Act.

[^17]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. on Armed Services*,
    103^rd^ Cong. (1994) (statement of Mr. Gary B. Edwards, Director,
    U.S. Fish and Wildlife Service, June 29, 1994) \[hereinafter
    Edwards, June 29, 1994\].

[^18]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. on Armed Services*,
    103^rd^ Cong. (1994) (statement of Mr. Dave McCurdy, Chairman,
    Subcomm. On Military Installations and Facilities, June 29, 1994)
    \[hereinafter McCurdy, June 29, 1994\].

[^19]: *Id*.

[^20]: Ripley & Leslie, *supra* note 12, at 95.

[^21]: *Id*. at 96-100. World War II natural resources management
    efforts were largely directed toward erosion reduction and dust
    control. Post-World War II efforts focused on renewable resources,
    such as timber production, agricultural out-leasing, and fishing and
    hunting programs. The Sikes Act of 1960 and the major environmental
    statutes of the 1970s--National Environmental Policy Act, Clean
    Water Act, Clean Air Act and the Endangered Species Act--had a
    profound impact on resources management on military lands, leading
    to a more holistic approach. *Id*. *See also* Goodman, June 29,
    1994, *supra* note 9 (giving examples of military adjustments made
    to comply with environmental laws, such as modifying low-level
    flying routes, scheduling ground activities to avoid sensitive
    mating and nesting times, and moving artillery impact areas).

[^22]: Goodman, June 29, 1994, *supra* note 9.

[^23]: *Id*. The other major goals are these: "\[E\]nsure DoD operations
    comply with environmental laws; clean up and reduce risk from
    contaminated sites; prevent pollution at the source whenever
    possible; promote development of dual-use environmental
    technologies; and protect the safety and health of our military and
    civilians." *Id*.

[^24]: Goodman, June 29, 1994, *supra* note 9.

[^25]: DoDI 4715.3, *supra* note 11, encl. 6.

[^26]: Goodman, June 29, 1994, *supra* note 9.

[^27]: Richard A. Jaynes, Natural Resource Management on Army
    Installations: DoD Policy Initiatives in a Statutory Chess Game
    30-31 (1997) (unpublished LL.M. thesis, George Washington
    University) (on file with The George Washington University Law
    School Library) \[hereinafter Jaynes\].

[^28]: Jaynes, *supra* note 26, at 28-29.

[^29]: *Id.* at 29.

[^30]: Pub. L. No. 81-345, 63 Stat. 671 (1949).

[^31]: Jaynes, *supra* note 26, at 29.

[^32]: *Id.*

[^33]: 16 U.S.C.A. § 670a (1985) (amended 1997).

[^34]: *Id*.

[^35]: Edwards, June 29, 1994, *supra* note 16.

[^36]: Jaynes, *supra* note 26, at 36.

[^37]: [H.R. Rep. No.]{.smallcaps} 103-718, at 5-6 (1994). The
    amendments also established Title II of the Act making it applicable
    to the Department of Interior and the Department of Agriculture in
    managing Bureau of Land Management and Forest Service lands, as well
    as lands under the jurisdiction of the Department of Energy and the
    National Aeronautics and Space Administration. *See* *id*. at 6.

[^38]: Jaynes, *supra* note 26, at 39 (explaining that Congress tried to
    insert an accountability clause but the bill was vetoed by President
    Carter; the subsequent compromise bill deleted this clause and
    lowered the annual authorizations).

[^39]: *Id.* at 40. *See also* [H.R. Rep. No.]{.smallcaps} 103-718, at
    6.

[^40]: Jaynes, *supra* note 26, at 40.

[^41]: *Id.* at 42 (citing Rand [National Defense Institute, More Than
    25 Million Acres: DoD as a Federal, Natural, and Cultural Resource
    Manager 4 (1996)).]{.smallcaps}

[^42]: Jaynes, *supra* note 26, at 42-43. *See also* [H.R. Rep.
    No.]{.smallcaps} 103-718, at 6. The amendments required the
    following:

    > \(1\) DoD manage its wildlife and fishery resources with
    > professionals trained in fish and wildlife management, providing
    > sustained multi-purpose use and public access; (2) fish and
    > wildlife plans be reviewed by all parties on a regular basis, not
    > less than once every five years; and (3) any sale or lease of land
    > or forest products be compatible with the fish and wildlife plan.

    *Id*.

[^43]: 16 U.S.C.A. § 670a (1985) (amended 1997).

[^44]: Democrat, Massachusetts, Chairman of the Committee on Merchant
    Marine and Fisheries.

[^45]: Republican, Alaska, Ranking Minority Member of the Subcommittee
    on Fisheries Management.

[^46]: H.R. 3300, 103^rd^ Cong. (1993).

[^47]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. On Armed Services*,
    103^rd^ Cong. (1994) (statement of Mr. Gerry E. Studds, Chairman of
    the Committee on Merchant Marine and Fisheries, June 29, 1994)
    \[hereinafter Studds, June 29, 1994\].

[^48]: *Id*. Specifically, Mr. Studds cited as problems that, "\[a\]ll
    too often, plans are not being prepared, are not being implemented,
    or--where implemented--lack coordination with, or integration into,
    other military activities." *Id*.

[^49]: *Id*.

[^50]: *Id*.

[^51]: *Id*.

[^52]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. on Armed Services*,
    103^rd^ Cong. v (1994).

[^53]: *Id.* at vi (requiring the DoD to enumerate those installations
    where it determines an INRMP is not appropriate and the
    corresponding reasons).

[^54]: *Id.* at vii.

[^55]: *Sikes Act Amendment Fails, H.R. 3300 Dead for Now*, [Fish and
    Wildlife News (T]{.smallcaps}he National Military Fish and Wildlife
    Association, Newburg, Md.), Sept. 1994, at 2.

[^56]: *Hearing on Conservation of Rhinos and Reauthorization of the
    Sikes Act Before the Subcomm. on Environment and Natural Resources
    of the House of Representatives Comm. on Merchant Marine and
    Fisheries*, 103^rd^ Cong. 35 (1993) (testimony of Mr. Gene Stout,
    Chairman of the Board of Directors, National Wildlife Federation).

[^57]: The National Military Fish and Wildlife Association (NMFWA)
    mission is to support professional management of all natural
    resources on military lands. Its membership consists of over 700
    natural resources specialists from each of the four branches of
    service, the National Guard and Reserve Components, whose job it is
    to professionally manage all programs that relate to conservation
    and use of United States Department of Defense lands. *See* *Striped
    Bass Conservation: Hearings on H.R. 1141 Before the Subcomm. on
    Fisheries, Wildlife, and Oceans of the House of Representatives
    Comm. on Resources*, 104th Cong. (1995) (statement of Mr. Junior D.
    Kerns, President, NMFWA, Mar. 16, 1995) \[hereinafter Kerns, Mar.
    16, 1995\]. The NMFWA was heavily involved in the legislative
    process from the draft of H.R. 3300 to the passage of the 1997
    Amendments. *See* *generally* [Fish and Wildlife News
    (T]{.smallcaps}he National Military Fish and Wildlife Association,
    Newburg, Md.), May 1994, Aug. 1994, Sept. 1994, June 1995.

[^58]: *Hearing on Conservation of Rhinos and Reauthorization of the
    Sikes Act Before the Subcomm. on Environment and Natural Resources
    of the House of Representatives Comm. on Merchant Marine and
    Fisheries*, 103^rd^ Cong. 34 (1993) (testimony of Mr. Wray, National
    Military Fish and Wildlife Association, Nov. 3, 1993) \[hereinafter
    Wray, Nov. 3, 1993\] (Asserting, "DoD's internal audit initiatives,
    such as \[inspector general\] inspections, and the more recent
    environmental compliance evaluations, have identified deficiencies
    but lack a serious follow-up.").

[^59]: *Id.* *See also* Goodman, June 29, 1994, *supra* note 9
    (explaining the DoD's alternative approach to the NOV system would
    involve internal auditing procedures).

[^60]: H.R. [Rep. No]{.smallcaps}. 103-718, at 3 (1994); *see also*
    *Sikes Act Amendment Fails, H.R. 3300 Dead for Now*, *supra* note
    54, at 2.

[^61]: H.R. [Rep. No]{.smallcaps}. 103-718, at 1.

[^62]: *Id*. at 7.

[^63]: *Id*.

[^64]: *Id*.

[^65]: [H.R. Rep. No]{.smallcaps}. 104-107(II) (1995). *See also* *Sikes
    Act Amendment Fails, H.R. 3300 Dead for Now*, *supra* note 54, at 2.

[^66]: Republican, New Jersey.

[^67]: H.R. 1141, 104^th^ Cong. (1995).

[^68]: [H.R. Rep. No]{.smallcaps}. 104-107(II). *See also* *Sikes Act
    Update*, [Fish and Wildlife News (T]{.smallcaps}he National Military
    Fish and Wildlife Association, Newburg, Md.), June 1995, at 2.

[^69]: Kerns, Mar. 16, 1995, *supra* note 56.

[^70]: [H.R. Rep. No.]{.smallcaps} 104-878 (1997).

[^71]: *[I]{.smallcaps}d.* (referring to H.R. 3230).

[^72]: *[I]{.smallcaps}d*[.]{.smallcaps}

[^73]: H.R. 374, 105^th^ Cong. (1997).

[^74]: *Wildlife Management on Military Installations: Hearing on H.R.
    374 Before the Subcomm. On Fisheries Conservation, Wildlife, and
    Oceans of the House of Representatives Comm. On Resources*, 105^th^
    Cong. (1997) (statement of Jim Saxton, Chairman, Subcommittee on
    Fisheries Conservation, Wildlife, and Oceans, May 22, 1997)
    \[hereinafter Saxton, May 22, 1997\].

[^75]: *Id*.

[^76]: Jaynes, *supra* note 26, at 80 (citing 143 CONG. REC. H4381
    (daily ed. June 25, 1997) (statement of Rep. Saxton)).

[^77]: 16 U.S.C.A. § 670a (1985) (amended 1997).

[^78]: Goodman, June 29, 1994, *supra* note 9.

[^79]: Studds, June 29, 1994, *supra* note 46.

[^80]: Goodman, June 29, 1994, *supra* note 9.

[^81]: Kerns, Mar. 16, 1995, *supra* note 56.

[^82]: *Id*.

[^83]: DODI 4715.3, *supra* note 11, ¶ D(2)(b).

[^84]: Army Regulation 200-3, Natural Resources--Land, Forest and
    Wildlife Management (Feb. 28, 1995) \[hereinafter AR 200-3\]. This
    regulation was supplemented by memorandum. Memorandum from the
    Department of the Army (Assistant Chief of Staff for Installation
    Management) to All Subordinate Headquarters, Subject: Army Goals and
    Implementing Guidance for Natural Resources Planning Level Surveys
    and Integrated Natural Resources Management Plans (Mar. 21, 1997)
    (on file with author) \[hereinafter Army Guidance\].

[^85]: Air Force Instruction 32-7064, Integrated Natural Resources
    Management (Aug. 1, 1997) \[hereinafter AFI 32-7064\].

[^86]: *See* *id.* Chapter 2 (giving procedures for implementing
    integrated natural resources management). *See also* *id*.
    Attachment 2 (providing a detailed outline of what an INRMP should
    contain); AR 200-3, *supra* note 83, Chapter 9 (giving the scope of
    the plans and delineating specific criteria that must be met for the
    plans to be deemed integrated); Army Guidance, *supra* note 83, ¶
    8(c) (listing what INRMPs must contain).

[^87]: *See* Operational Navy Instruction 5090.1B, Natural Resources
    Management, Chapter 22, ¶ 22-4.1(b) (Nov. 1, 1994) \[hereinafter
    OPNAVINST 5090.1B, Chapter 22\].

[^88]: *See* Marine Corps Order 5090.2, Environmental Compliance and
    Protection Manual, Natural Resources Management Program, Chapter 17
    (Sep. 26, 1991).

[^89]: Sikes Act Improvement Act of 1997, Pub. L. No. 105-85, § 2904(a),
    111 Stat. 1629 (1997).

[^90]: "Conservation" is not defined in the SAIA. *Cf*. DoDI 4715.3,
    *supra* note 11, encl. 3, ¶ 4 (defining "conservation" as planned
    management, use and protection of natural cultural resources to
    provide sustainable use and continued benefit for present and future
    generations, and the prevention of exploitation, destruction, waste
    and/or neglect).

[^91]: Sikes Act Improvement Act § 2904(a).

[^92]: *Id*.

[^93]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. on Armed Services*,
    103^rd^ Cong. (1994) (statement of Gene Stout, Chairman of the Board
    of Directors, National Wildlife Federation, June 29, 1994)
    \[hereinafter Stout, June 29, 1994\].

[^94]: *See generally,* Jaynes, *supra* note 26, at 71-73.

[^95]: DoDI 4715.3, *supra* note 11, encl. 7. *See also* Jaynes, *supra*
    note 26, at 71-73.

[^96]: DoDI 4715.3, *supra* note 11, encl. 3, ¶ 12. Ecosystem Management
    is defined in the following manner:

    > A goal-driven approach to managing natural and cultural resources
    > that supports present and future mission requirements; preserves
    > ecosystem integrity; is at a scale compatible with natural
    > processes; is cognizant of nature's time frames; recognizes social
    > and economic viability within functioning ecosystems; is adaptable
    > to complex and changing requirements; and is realized through
    > effective partnerships among private, local, State, tribal, and
    > Federal interests. Ecosystem management is a process that
    > considers the environment as a complex system functioning as a
    > whole, not as a collection of parts, and recognizes that people
    > and their social and economic needs are a part of the whole.

    *Id.* encl. 3, ¶ 9. *See also id*. encl. 3, ¶ 20 (Defining natural
    resources as "all elements of nature and their environments of soil,
    air, and water . . ." including "nonliving resources such as
    minerals and soil components \[and\] living resources such as plants
    and animals.").

[^97]: Goodman, June 29, 1994, *supra* note 9. *See* *also* DoD
    Guidance, *supra* note 6 (characterizing INRMPs as "comprehensive
    plans for the management of all installation natural resources
    (substantially expanded beyond the scope of fish and wildlife
    cooperative plans)"). *See also* DoDI 4715.3, *supra* note 11, encl.
    7 (delineating specific contents of an INRMP).

[^98]: For a discussion of Administrative Procedure Act, see *infra*
    notes 112-118 and accompanying text.

[^99]: Sikes Act Improvement Act § 2913.

[^100]: *Id*. § 2911. Interview with Dr. J. Douglas Ripley, Natural
    Resources Manager, Headquarters United States Air Force
    Environmental Division, Pentagon, Arlington, Virginia (Jul. 27,
    1998) (withdrawn lands account for 17 million acres, which comprises
    68 percent of the DoD's 25 million acres).

[^101]: Kerns, Mar. 16, 1995, *supra* note 56.

    > "Military installation" must also include lands controlled and
    > managed by National Guard and Reserve components. Today's
    > integrated battlefields often require Reserve, Guard, and Regular
    > Units to work side by side. The same is true on their training
    > lands. Planning and management on their training lands is no less
    > important than is maintenance of their equipment. . . . Military
    > lands, no matter who manages them, are too precious to ignore.

    *Id*.

[^102]: Interview with Jim Van Ness, Associate Department of Defense
    General Counsel for Environment and Installations, Pentagon,
    Arlington, Virginia (July 17, 1998). *Cf.* Memorandum from the
    Department of the Army and the Air Force National Guard Bureau, to
    the Adjutant General of All States, Puerto Rico, Guam, the Virgin
    Islands, and the District of Columbia, Subject: (All States Log
    Number P97-0046) Integrated Natural Resource Management Plans, May
    7, 1997 (stating INRMPs are to be prepared for state-owned lands
    provided National Guard Bureau funds are used).

[^103]: Sikes Act Improvement Act § 2904(a)(1)(B).

[^104]: *See id*. § 2911 (defining "United States" to include the
    states, the District of Columbia, and the territories and
    possessions of the United States).

[^105]: *Id*.

[^106]: *See* DoDI 4715.3, *supra* note 11, ¶ B (defining applicability
    and scope of instruction to include the military departments, United
    States territories and possessions, public lands withdrawn from all
    forms of appropriation under public land laws and reserved for use
    by the Department of Defense; but not the Civil Works function of
    the Army).

[^107]: Sikes Act Improvement Act § 2904(a).

[^108]: *Id*. § 2905.

[^109]: DoD Guidance, *supra* note 6.

[^110]: *Id*. *But see* Army Guidance, *supra* note 83 (directing that
    INRMPs are not required for installations of five hundred acres or
    less); AR 200-3, *supra* note 83, ¶ 9-2 (discussing criteria for the
    preparation of INRMPs); *cf*. Telephone Interview with Dr. Vic
    Diersing, Chief Conservation, Office of the Assistant Chief of Staff
    of the Army for Installation Management (June 4, 1998) (explaining
    that Army guidance is flexible enough to allow commanders to request
    an exception to prepare INRMPs for situations where an installation
    of five hundred acres or less encompasses significant natural
    resources, or not to prepare an INRMP where a larger installation
    does not encompass significant natural resources).

[^111]: DoD Guidance, *supra* note 6.

[^112]: Scott M. Farley & Lieutenant Colonel Richard A. Jaynes, *The
    Sikes Act Improvement Act of 1997*, [Army Law]{.smallcaps}., Mar.
    1998, at 37, 39 \[hereinafter Farley & Jaynes\] (explaining that
    under the Administrative Procedure Act, courts review and may set
    aside agency action not taken in accordance with law).

[^113]: 5 U.S.C.A. § 551 (1996).

[^114]: 5 U.S.C.A. § 551(2) (defining "person" to include an individual,
    partnership, corporation, association, or public or private
    organization other than a federal agency).

[^115]: 5 U.S.C.A. § 702 (1996).

[^116]: 5 U.S.C.A. § 551(13) (noting that "agency action" includes the
    failure to act).

[^117]: 5 U.S.C.A. § 706 (1996).

[^118]: For a discussion of the standing requirement, see *Lujan v.
    National Wildlife Federation*, 497 U.S. 871 (1990) (holding that the
    National Wildlife Federation did not have standing under Section 702
    of the Administrative Procedures Act to challenge the land
    withdrawal review program because the actions objected to were not a
    final agency action), and its progeny.

[^119]: An example of an agency interpretation that might be given
    deference is a determination of what constitutes "significant"
    natural resources. *See* Chevron U.S.A., Inc. v. Natural Resources
    Defense Council, Inc., 467 U.S. 837 (1984) (noting that if statute
    is silent or ambiguous with respect to a specific issue, the agency
    interpretation will be upheld if it is based on a permissible
    construction of the statute).

[^120]: Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, §
    2904(a)(2), 111 Stat. 1629 (1997).

[^121]: *Id.*

[^122]: 16 U.S.C.A. § 670a (1985) (amended 1997).

[^123]: Sikes Act Improvement Act § 2904(a).

[^124]: Interview with Jim Van Ness, Associate Department of Defense
    General Counsel for Environment and Installations, Pentagon,
    Arlington, Virginia (Mar. 25, 1998).

[^125]: DoD Guidance, *supra* note 6.

[^126]: *Id*.

[^127]: *Id*. *See also* *Striped Bass Conservation: Hearings on H.R.
    1141 Before the Subcomm. on Fisheries, Wildlife, and Oceans of the
    House of Representatives Comm. on Resources*, 104th Cong. (1995)
    (statement of Ms. Sherri W. Goodman, Mar. 16, 1995) \[hereinafter
    Goodman, Mar. 16, 1995\] (asserting that consultation is the
    appropriate role for the United States Fish and Wildlife Service and
    state agencies, and requesting that the phrase "mutually agreed to
    by" be replaced with "developed in consultation with"). S*ee also*
    *Wildlife Management on Military Installations: Hearing on H.R.374
    Before the Subcomm. on Fisheries Conservation, Wildlife and Oceans
    of the House of Representatives Comm. on Resources*, 105^th^ Cong.
    (1997) (statement of Ms. Sherri W. Goodman) (reporting no agreement
    yet on specific language to ensure all parties have an opportunity
    to participate in plan development).

[^128]: DoD Guidance, *supra* note 6.

[^129]: *Id*.

[^130]: *Id*.

[^131]: Sikes Act Improvement Act § 2904(a).

[^132]: *Id*. § 2904(c).

[^133]: [H.R. Conf. Rep. No]{.smallcaps}. 103-718, at 8 (1994).

[^134]: [H.R. Conf. Rep. No]{.smallcaps}. 105-340, at 870 (1997).

[^135]: DoD Guidance, *supra* note 6.

[^136]: *Id*.

[^137]: *Id*. (expressing the opinion that this situation is not
    expected to occur often, highlighting the finite role to be played
    by the federal and state fish and wildlife agencies and reflecting
    the historically cooperative relationship among the agencies).

[^138]: *Id*.

[^139]: Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, §
    2905(d), 111 Stat. 1629 (1997). *Compare* *Hearing on Conservation
    of Rhinos and Reauthorization of the Sikes Act Before the Subcomm.
    on Environment and Natural Resources of the House of Representatives
    Comm. on Merchant Marine and Fisheries*, 103^rd^ Cong. 188 (1993)
    (concerning H.R. 3300 § 4(c)), *with* Sikes Act Improvement Act
    §2905(d) (public comment provision first appeared in H.R. 3300 and
    remained intact throughout the several bills preceding the 1997
    enactment of the SAIA, except "Secretary of Defense" became
    "Secretary of each military department").

[^140]: 42 U.S.C.A. § 4321 (1994). *See* 40 C.F.R. § 1506.6 (1998)
    (calling for agencies to solicit public comments at various stages
    of preparing environmental documentation).

[^141]: [George Cameron Coggins et al., Federal Public Land and
    Resources Law 333 (]{.smallcaps}3^rd^ ed[. 1993)
    \[]{.smallcaps}hereinafter [Coggins\].]{.smallcaps} According to the
    authors, Nixon thought NEPA was "little more than an innocuous
    statement of policy." *Id*. For a discussion on how the impact of
    NEPA was also underestimated by businesses, development interests,
    and public bureaucracies, see Lynton K. Caldwell, *A Constitutional
    Law for the Environment, 20 Years with NEPA Indicates the Need*, [31
    Env't 6, 26-28 (1989) \[]{.smallcaps}hereinafter Caldwell\].

[^142]: 42 U.S.C.A. § 4331(b) (1994).

[^143]: 42 U.S.C.A. §4332. (1994).

[^144]: *See* 40 C.F.R. § 1508.12 (1997) (defining "federal agency" to
    include all agencies of the federal government, excluding Congress,
    the Judiciary, and the President, including the performance of staff
    functions for the President in his Executive Office).

[^145]: 490 U.S. 332 (1989).

[^146]: *Id*. at 350.

[^147]: *Id.* at 351.

[^148]: *Id.* at 350.

[^149]: *Id.* at 349.

[^150]: *See generally* [Coggins]{.smallcaps}, *supra* note 140, at 361
    (opining that the Supreme Court "has taken the narrow view of every
    NEPA question it has chosen to decide"); Caldwell, *supra* note 140,
    at 26 (deeming the failure to enforce the policy of NEPA as well as
    the process a "critical error in the interpretation of both NEPA and
    the Environmental Impact Statement").

[^151]: *See* [Coggins]{.smallcaps}, *supra* note 140, at 361 ("In spite
    of the Court's reluctance to allow the tail of environmental
    evaluation to wag the dog of normal government operations, NEPA
    remains a critical element in public land management."). *But see*
    Caldwell, *supra* note 140, at 26 (describing how environmental
    impact statements have been perverted to support agency activities
    that, if NEPA's intent were honored, would have been rejected;
    giving as examples the Alaska oil pipeline and the
    Tennessee-Tombigbee Canal).

[^152]: The CEQ is the agency responsible for developing NEPA guidelines
    for other federal agencies. *See infra* notes 156-158 and
    accompanying text.

[^153]: [Council on Environmental Quality, Incorporating Biodiversity
    Considerations Into Environmental Impact Analysis Under the National
    Environmental Policy Act]{.smallcaps} vii (1993).

[^154]: Caldwell, *supra* note 140, at 26.

[^155]: Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349
    (1989).

[^156]: 42 U.S.C.A. § 4332(2)(C).

[^157]: 42 U.S.C.A. § 4342 (1994).

[^158]: *CEQ Homepage* (visited Apr. 6, 1998)
    \<<http://www.whitehouse.gov/CEQ/About.html>\>; *see also* 40 C.F.R.
    § 1515.2 (1997) (delineating the Council's primary responsibilities
    and underlying authority).

[^159]: 40 C.F.R. § 1500.1 (1983).

[^160]: *See* 40 C.F.R. § 1507.3 (1997) (requiring agencies to adopt
    their own procedures in consultation with CEQ).

[^161]: Environmental Effects in the United States of DoD Actions, 32
    C.F.R. 188, encl. 1 (1997); Environmental Effects of Army Actions,
    32 C.F.R. 651 (1997); Navy Procedures for Implementing the National
    Environmental Policy Act, 32 C.F.R. 775 (1997); Air Force
    Environmental Impact Analysis Process (EIAP), 32 C.F.R. 989 (1997).

[^162]: 40 C.F.R. § 1507.3.

[^163]: 40 C.F.R. § 1507.3 (calling for agency procedures to comply with
    CEQ regulations unless compliance would be inconsistent with
    statutory requirements).

[^164]: Additionally, the CEQ periodically publishes guidance documents
    which, although not legally binding, address specific topics and are
    designed to assist agencies' efforts to fully comply with NEPA.
    *See, e.g.,* [Council on Environmental Quality]{.smallcaps},
    [Considering Cumulative Effects Under the National Environmental
    Policy Act (]{.smallcaps}1997); [Council on Environmental Quality,
    Incorporating Biodiversity Considerations Into Environmental Impact
    Analysis Under NEPA]{.smallcaps} (1993).

[^165]: 42 U.S.C.A. § 4332(2)(c). *See* 40 C.F.R. § 1501.4 (1997).

[^166]: *Supra* note 155 and accompanying text. *See generally* 40
    C.F.R. §§ 1502.1--1502.25 (1997); *Id*. § 1502.10 (requiring
    agencies to use a standard format which includes a statement of
    purpose and need for the action, alternatives to the action, and
    environmental consequences).

[^167]: Caldwell, *supra* note 140, at 26.

[^168]: 40 C.F.R. § 1508.9 (explaining an EA is a more concise public
    document that briefly describes the need for the proposal; the
    action and its alternatives, along with their environmental impacts;
    and lists agencies and people consulted).

[^169]: 40 C.F.R. § 1501.4.

[^170]: *Id.* *See also* 40 C.F.R. §1508.13 (defining FONSI).

[^171]: 40 C.F.R. § 1508.20 (1998). Mitigation includes:

    > \(a\) Avoiding the impact altogether by not taking certain action
    > or parts of an action.
    >
    > \(b\) Minimizing impacts by limiting the degree or magnitude of
    > the action and its implementation.
    >
    > \(c\) Rectifying the impact by repairing, rehabilitating, or
    > restoring the affected environment.
    >
    > \(d\) Reducing or eliminating the impact over time by preservation
    > and maintenance operations during the life of the action.
    >
    > \(e\) Compensating for the impact by replacing or providing
    > substitute resources or environments.

    *Id*.

[^172]: [Council on Environmental Quality,]{.smallcaps} [The National
    Environmental Policy Act, A Study of Its Effectiveness After
    Twenty-Five Years 19 (]{.smallcaps}1997) \[hereinafter [NEPA After
    25 Years]{.smallcaps}\] (identifying an increasing trend for
    agencies to propose mitigation measures during the preparation of
    EAs).

[^173]: 40 C.F.R. § 1508.4.

[^174]: *Id.*

[^175]: *Id*. (section also allows an agency to prepare environmental
    assessments even though it is not required to do so).

[^176]: *See* 32 C.F.R. 651, Appendix A (Army); 32 C.F.R. 775.6(f)
    (Navy); 32 C.F.R. 989, Attachment 2 (Air Force).

[^177]: [Coggins]{.smallcaps}, *supra* note 140, at 361.

[^178]: Sikes Act Improvement Act § 2905(c) (setting deadline of Nov.
    17, 2001, for INRMPs to be implemented on each military installation
    where such plan is required).

[^179]: For a discussion of funding and budget issues, see *infra* notes
    275-312 and accompanying text.

[^180]: 40 C.F.R. §1508.18 (clarifying that the term major "reinforces
    but does not have a meaning independent of \[the term\]
    significantly").

[^181]: 42 U.S.C.A. § 4332(2)(C) (1994); 40 C.F.R. 1502.3 (1997). *See
    also* 40 C.F.R. § 1508.23 (defining "proposals"); 40 C.F.R. §
    1508.18 (defining "major federal action"); 40 C.F.R. § 1508.27
    (defining "significantly"); 40 C.F.R. §§ 1508.3, 1508.8 (defining
    "affecting"); 40 C.F.R. § 1508.14 (defining "the quality of the
    human environment").

[^182]: 42 U.S.C.A. § 4332(2)(C). *See* RESTORE: The North Woods v. U.S.
    Dept. of Agriculture, 968 F. Supp. 168, 171 (D. Vermont 1997).

[^183]: 5 U.S.C.A. § 551 (1996). *See* *supra* notes 112-118 and
    accompanying text.

[^184]: *See* Northcoast Environmental Center v. Glickman, 136 F.3d 660,
    666-67 (9^th^ Cir. 1997) (discussing split among circuit courts
    applying *Marsh v. Oregon Natural Resources* *Council*, 490 U.S. 360
    (1989)). The *Northcoast* court distinguishes between a factual or
    technical matter, in which an agency is accorded a "strong level of
    deference" and "disputes involving predominantly legal questions,"
    to which the less deferential standard of reasonableness applies.
    *Id.* at 667.

[^185]: *See* *id.* at 667 (describing Eleventh Circuit's adoption of
    "the arbitrary and capricious standard when reviewing agency action
    in NEPA cases").

[^186]: 5 U.S.C.A. § 706(2)(A) (1996) ("The reviewing court shall hold
    unlawful and set aside agency action, findings, and conclusions
    found to be arbitrary, capricious, an abuse of discretion, or
    otherwise not in accordance with law."). *See* Northcoast, 136 F.3d
    at 666 (explaining that under arbitrary and capricious standard, it
    will only overturn agency decision only if agency committed a "clear
    error of judgement").

[^187]: *See* Northcoast, 136 F.3d at 666-67 (joining the Eighth and
    Tenth Circuits in limiting *Marsh v. Oregon Natural Resources
    Council* and finding it to be of no controlling value "when dealing
    with the threshold question of NEPA applicability in the first
    instance").

[^188]: *See* *id.* at 666 (agency decision to be upheld unless it was
    unreasonable) (citing Friends of the Earth v. Hintz, 800 F. 2d 822,
    836 (9^th^ Cir. 1986)).

[^189]: The Fund For Animals v. The United States of America, Civ. No.
    96-0040 MV/DJS, slip op. at 8 (D. N.M. Oct. 23, 1996).

[^190]: Melaney Payne, Casenote, *Critically Acclaimed But Not
    Critically Followed--The Inapplicability of the National
    Environmental Policy Act to Federal Agency Actions*: Douglas County
    v. Babbitt, 7 [Vill. Envtl. L.J.]{.smallcaps} 339, n.5 (1996)
    \[hereinafter Payne\] (quoting Howard Geneslaw, Article*, Cleanup of
    National Priorities List Sites, Functional Equivalence and the NEPA
    Environmental Impact Statement*, 10 J. Land Use & Envtl. L. 127,
    136-138 (1994)).

[^191]: Flint Ridge Development Co. v. Scenic Rivers Association, 426
    U.S. 776, 791 (1976).

[^192]: RESTORE: The North Woods, 968 F. Supp. at 175.

[^193]: *Id*.

[^194]: *See* 16 U.S.C.A. § 670a(b)(2) (1985) (amended 1997) (Sikes Act
    of 1960 called for plans to be "reviewed as to operation and effect
    by the parties thereto on a regular basis, but not less often than
    every five years"); DoDI 4715.3, *supra* note 11, ¶ F(1)(f) (DoD
    guidance on INRMPs that predated the 1997 Amendments called for the
    plans to be reviewed annually, updated as warranted by mission or
    environmental changes, and revised and approved at least every five
    years); Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, §
    2904(c)(2), 111 Stat. 1629 (1997) (SAIA retained language from
    previous Act calling for review at least every five years).

[^195]: The Fund For Animals, Civ. No. 96-0040 MV/DJS, slip op. at 9
    (discussing project begun or planned prior to NEPA is subject to
    NEPA as to the portions remaining undone, and instructing as long as
    agency decisions remain to be made or are open to revision, NEPA
    applies). *See* 40 C.F.R. § 1506.12 (1998) ("These regulations shall
    apply to the fullest extent practicable to ongoing activities and
    environmental documents begun before the effective date.").

[^196]: Numerous statutes and Executive Orders (EOs) compel the military
    to pay particular attention to the environment. *See, e.g*., Marine
    Mammal Protection, 16 U.S.C.A. § 1361 (1985 & Supp. 1998); Marine
    Protection, Research and Sanctuaries Act of 1972, 16 U.S.C.A. § 1431
    (1985 & Supp. 1998); Coastal Zone Management Act, 16 U.S.C.A. § 1451
    (1985 & Supp. 1998); Endangered Species Act of 1973, 16 U.S.C.A. §
    1531 (1985 & Supp. 1998); Coastal Barrier Resources Act, 16 U.S.C.A.
    § 3501 (1985 & Supp. 1998); Exec. Order No. 11,593, 36 Fed. Reg.
    8,921 (1971) (Protection and Enhancement of the Cultural
    Environment); Exec. Order No. 11,644, 37 Fed. Reg. 2,877 (1972) (Use
    of Off-Road Vehicles on the Public Lands); Exec. Order No. 11,988,
    42 Fed. Reg. 26,951 (1977) (Floodplain Management); Exec. Order No.
    11,989, 42 Fed. Reg. 26,959 (1977) (Off-Road Vehicles on Public
    Lands); Exec. Order No. 11,990, 42 Fed. Reg. 26,961 (1977)
    (Protection of Wetlands); Exec. Order No. 12,898, 3 C.F.R. 859
    (1995) (Federal Actions to Address Environmental Justice in Minority
    Populations and Low-Income Populations); Exec. Order No. 12,962, 3
    C.F.R. 383 (1996) (Recreational Fisheries).

[^197]: RESTORE: The North Woods, 968 F. Supp. at 172.

[^198]: DODI 4715.3, *supra* note 11, encl. 6(b)(5).

[^199]: *See* DODI 4715.3, *supra* note 11, ¶ D(1)(m) (describing the
    management and conservation of natural resources under DoD control,
    "including planning, implementation, and enforcement functions," as
    "inherently governmental functions").

[^200]: 40 C.F.R. § 1508.18(b)(2).

[^201]: DODI 4715.3, *supra* note 11, ¶ D(2)(b).

[^202]: Sikes Act Improvement Act § 2905(c) (giving the Secretaries of
    the military departments until Nov. 17, 2001, to prepare and begin
    implementing INRMPs on each applicable installation).

[^203]: Sikes Act Improvement Act § 2905(d). For a discussion of the
    public comment requirement under the SAIA, see *infra* notes 233-263
    and accompanying text.

[^204]: *See* *supra* notes 172-173 and accompanying text.

[^205]: *See* 32 C.F.R. 651 Appendix A (Army); 32 C.F.R. 775.6(f)
    (Navy); 32 C.F.R. § 989 Attachment 2 (Air Force).

[^206]: 40 C.F.R. § 1508.14.

[^207]: DoDI 4715.3, *supra* note 11, encl. 3, ¶ 9 (Defining ecosystem
    management as "a process that considers the environment as a complex
    system functioning as a whole, not as a collection of parts, and
    recognizes that people and their social and economic needs are a
    part of the whole.").

[^208]: 40 C.F.R. § 1508.27.

[^209]: 40 C.F.R. § 1508.27(a).

[^210]: *Id*.

[^211]: 40 C.F.R. § 1508.27(b).

[^212]: 40 C.F.R. § 1508.27(b)(1) (a significant effect may exist even
    if, overall, the effect will most likely be beneficial).

[^213]: 40 C.F.R. § 1508.27(b)(3) (including "proximity to historic or
    cultural resources . . . wetlands, wild and scenic rivers, or
    ecologically critical areas").

[^214]: 40 C.F.R. § 1508.27(b)(6).

[^215]: 40 C.F.R. § 1508.27(b)(9).

[^216]: *See* *supra* notes 12-17 and accompanying text.

[^217]: *See* *supra* note 12 and accompanying text.

[^218]: 32 C.F.R. 188, encl. 1 (1998).

[^219]: *Id.*

[^220]: *Id*.

[^221]: 40 C.F.R. § 1508.9.

[^222]: *Id.*

[^223]: *See supra* notes 83-87 and accompanying text.

[^224]: Interview with Dr. J. Douglas Ripley, Natural Resources Manager,
    Headquarters U.S. Air Force Environmental Division, Pentagon,
    Arlington, Virginia (Jan. 15, 1999) (discussing the Memorandum from
    Headquarters Air Force, Environmental Division to Major Commands,
    Draft Policy Memo for Implementation of Sikes Act Improvement
    Amendments, Attachment 1: Annotated Sikes Act with Air Force
    Interpretation (June 22, 1998) (on file with author) \[hereinafter
    Air Force Draft Guidance\]).

[^225]: Memorandum for the Vice Chief of Naval Operations and the
    Assistant Commandant of the Marine Corps, Subject: Department of the
    Navy Environmental Policy Memorandum 98-06; Review of Integrated
    Natural Resources Management Plans Under the National Environmental
    Policy Act (Aug. 12, 1998) (on file with author) \[hereinafter Navy
    Policy\].

[^226]: Army Regulation 200-2, Environmental Effects of Army Actions ¶
    5-3(k) (Dec. 23, 1988) \[hereinafter AR 200-2\].

[^227]: AR 200-3, *supra* note 83, ¶ 2-2(a).

[^228]: *Id.*

[^229]: AR 200-2, *supra* note 225, ¶ 5-3(k).

[^230]: Army Guidance, *supra* note 83, ¶ 8(d).

[^231]: Navy Policy*, supra* note 224.

[^232]: *Id*.

[^233]: AFI 32-7064, *supra* note 84, ¶ 2.4. *See also* Air Force Draft
    Guidance, *supra* note 223 (calling for each plan to be \"evaluated
    in terms of the Air Force Environmental Impact Analysis Process as
    required by the scope of the plan\").

[^234]: Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, § 2905,
    111 Stat. 1629 (1997).

[^235]: Farley & Jaynes, *supra* note 111, at 39.

[^236]: *See* State of Utah v. Babbitt, 137 F.3d 1193, 1212 (10^th^ Cir.
    1998) (discussing that if defendants amended a land use plan without
    the public participation required under the Federal Land Policy and
    Management Act of 1976, plaintiffs could challenge the plan at that
    time, would be entitled to relief, and the appropriate remedy would
    be to enjoin the use of the plan).

[^237]: *Hearing on Conservation of Rhinos and Reauthorization of the
    Sikes Act Before the Subcomm. on Environment and Natural Resources
    of the House of Representatives Comm. on Merchant Marine and
    Fisheries*, 103^rd^ Cong. 188 (1993) (concerning H.R. 3300 § 4(c)).

[^238]: Goodman, June 29, 1994, *supra* note 9.

[^239]: Goodman, Mar. 16, 1995, *supra* note 126.

[^240]: DoD Guidance, *supra* note 6.

[^241]: *Id*. *Cf*. Memorandum from Department of the Army, Office of
    the Assistant Secretary for Installations, Logistics, and
    Environment, to Deputy Under Secretary of Defense, Environmental
    Security (May 29, 1998) (on file with author) (in response to DoD
    guidance, the memorandum suggested the language be strengthened to
    recommend that "\[t\]he NEPA process *should* be used to document
    the decision making process" for INRMPs (emphasis added)).

[^242]: Note that the most recent Army guidance available predates the
    SAIA. *See* Army Guidance, *supra* note 83.

[^243]: Air Force Draft Guidance, *supra* note 223.

[^244]: Farley & Jaynes, *supra* note 111, at 39 n.38.

[^245]: *Id*.

[^246]: Navy Policy*, supra* note 224*.*

[^247]: Telephone Interview with Jennifer L. Scarborough, Natural
    Resource Specialist, Headquarters, United States Marine Corps,
    Virginia (June 29, 1998)

[^248]: *See* 40 C.F.R. § 1506.6 (1997) (concerning public involvement);
    40 C.F.R. § 1506.10 (concerning timing of agency action); 40 C.F.R.
    § 1507.3 (1997) (concerning agency procedures).

[^249]: 40 C.F.R. § 1506.6.

[^250]: *Id.*

[^251]: *See generally* 40 C.F.R. § 1503 (1997) (concerning commenting).

[^252]: [NEPA After 25 Years,]{.smallcaps} *supra* note 171, at 20
    (indicating there is a great deal of confusion about what public
    involvement is required, appropriate, or allowed in the preparation
    of EAs, because the NEPA regulations and guidance are primarily
    oriented to the preparation of environmental impact statements; and
    noting some agencies fail to successfully incorporate public
    participation into their EA/FONSI procedures). *See also id.* at 19
    (identifying the preparation of an EA as the most common source of
    litigation under NEPA because members of the public perceive they
    are being kept from participating in the process).

[^253]: 40 C.F.R. § 1501.4(e) (1997).

[^254]: *Id.*

[^255]: *Id.*

[^256]: 32 C.F.R. § 651.35(c) (1997).

[^257]: 32 C.F.R. § 651.25.

[^258]: 32 C.F.R. § 651.26.

[^259]: 32 C.F.R. § 989.15(e) (1997).

[^260]: *Id.*

[^261]: *Id.*

[^262]: 32 C.F.R. § 775.11 (1997) (listing as factors: the magnitude of
    the environmental considerations associated with the proposed
    action; the extent of anticipated public interest; and any relevant
    questions of national security and classification).

[^263]: *Id.*

[^264]: DoD Guidance, *supra* note 6.

[^265]: Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, §
    2905(c)(2), 111 Stat. 1629 (1997).

[^266]: *Id.* § 2905(c).

[^267]: *Id.* § 2905(d).

[^268]: [H.R. Conf. Rep. No]{.smallcaps}. 105-340, at 870 (1997).

[^269]: Interview with Dr. J. Douglas Ripley, Natural Resources Manager,
    Headquarters United States Air Force Environmental Division, Crystal
    City, Virginia (Apr. 13, 1998) (discussing Air Force INRMPs);
    Telephone Interview with Dr. Vic Diersing, Chief Conservation,
    Office of the Assistant Chief of Staff of the Army for Installation
    Management (June 4, 1998) (discussing Army INRMPs); Telephone
    Interview with Mr. Lew Shotton, Office of the Assistant Secretary of
    the Navy for Installations and Environment (July 8, 1998).

[^270]: DoD Guidance, *supra* note 6.

[^271]: *Id*.

[^272]: *Id*.

[^273]: *Id*.

[^274]: *See infra* notes 275-312 and accompanying text.

[^275]: *See* Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, §§
    2905, 2907, 111 Stat. 1629 (1997) (review for preparation of INRMPs;
    annual reviews and reports).

[^276]: *See generally*, Jaynes, *supra* note 26, at 39-45.

[^277]: *Id.* at 39-44.

[^278]: *Id.* at 38-45.

[^279]: *Striped Bass Conservation: Hearings on H.R. 1141 Before the
    Subcomm. on Fisheries, Wildlife, and Oceans of the House of
    Representatives Comm. on Resources*, 104th Cong. (1995).

[^280]: Studds, June 29, 1994, *supra* note 46.

[^281]: *Id.*

[^282]: Stout, June 29, 1994, *supra* note 92.

[^283]: *Id.*

[^284]: *Id.* Mr. Stout decried the current system as one that allocates
    money based on noncompliance rather than a commitment toward
    preventing noncompliance. He specifically cited the Army's
    successful Integrated Training Area Management (ITAM) program as one
    being cut back because it is largely proactive and not compliance
    driven. *Id*.

[^285]: *See* Kerns, Mar. 16, 1995, *supra* note 56.

[^286]: *Id.*

[^287]: *Id.*

[^288]: *Id.*

[^289]: Lillie & Ripley, *supra* note 12, at 75.

[^290]: *Id.*

[^291]: *Id.*

[^292]: Goodman, June 29, 1994, *supra* note 96, at 145 (responding to a
    question posed by Mr. McCurdy).

[^293]: *Id*. at 146.

[^294]: *Id*.

[^295]: *Id*.

[^296]: Goodman, June 29, 1994, *supra* note 9.

[^297]: *Id.*

[^298]: Office of Management and Budget, Circular A-106, Reporting
    Requirements in Connection With the Prevention, Control, and
    Abatement of Environmental Pollution at Existing Federal Facilities
    (Dec. 31, 1974) (this guidance has been rescinded, but discussions
    with OMB officials did not yield the exact date of this action).
    *See* Stout, 29 June 1994, *supra* note 92; Kerns, Mar. 16, 1995,
    *supra* note 56.

[^299]: H.R. [Rep. No]{.smallcaps}. 103-718, at 6 (1994).

[^300]: DoDI 4715.3, *supra* note 11, encl. 4.

[^301]: *Id.*

[^302]: *Id.*

[^303]: *Id.* ¶ (F)(1)(c).

[^304]: *Id.*

[^305]: *Id.* encl. 4.

[^306]: *Id.*

[^307]: DoD Guidance, *supra* note 6.

[^308]: Sikes Act Improvement Act of 1997, Pub. L. No. 108-85, § 2908,
    111 Stat. 1629 (1997).

[^309]: *Id.* § 2908(2). The SAIA retained language allowing the
    Secretary of a military department (formerly "Secretary of Defense")
    to enter into cooperative agreements with States, local governments,
    nongovernmental organizations, and individuals, to provide for the
    maintenance and improvement of natural resources on or to benefit
    natural and historical research on Department of Defense
    installations. *See id.* § 2908(1). The provision deleted by the
    SAIA required the parties to these agreements to contribute funds or
    to furnish services on a matching basis to defray the cost of the
    programs, projects, and activities under the agreements. *See* 16
    U.S.C.A. § 670c-1(b) (1985) (amended 1997).

[^310]: Air Force Draft Guidance, *supra* note 223.

[^311]: *Id*.

[^312]: DoD Guidance, *supra* note 6.

[^313]: DoDI 4715.3, *supra* note 11, encl. 4.

[^314]: Kerns, Mar. 16, 1995, *supra* note 56. *See* Sikes Act
    Improvement Act § 2907. The SAIA contains another reporting
    provision that is not recurring. *See* *id*. § 2905 (requiring
    one-time report, due Nov. 1998, in which the Secretary of Defense
    must submit to congress "a list of the military installations \[for
    which\] the preparation of an INRMP is not appropriate" and an
    explanation of the underlying reasons for each). For a discussion of
    this reporting requirement, see *supra* notes 106-110 and
    accompanying text.

[^315]: *See* DoD Guidance, *supra* note 6 (DoD will submit its first
    report in 1999).

[^316]: *Hearing on* *Conservation of Rhinos and Reauthorization of the
    Sikes Act Before the Subcomm. on Environment and Natural Resources
    of the House of Representatives Comm. on Merchant Marine and
    Fisheries*, 103^rd^ Cong. 189-194 (1993) (concerning H.R. 3300 [§
    5]{.smallcaps}).

[^317]: Wray, Nov. 3, 1993, *supra* note 57. *See also* Stout, June 29,
    1994, *supra* note 92 (explaining National Wildlife Federation
    position that if the DoD would issue a policy letter saying they
    will fund INRMPs, there would be no need for the enforcement
    clause).

[^318]: H.R. [Rep. No]{.smallcaps}. 103-718, at 6 (1994).

[^319]: H.R. [Rep. No]{.smallcaps}. 103-718, at 3.

[^320]: *See* Sikes Act Improvement Act § 2907 (defining "committees" as
    the Committee on Resources and the Committee on National Security,
    both of the House of Representatives, and the Committee on Armed
    Services and the Committee on Environment and Public Works, both of
    the Senate).

[^321]: *Id*. § 2907.

[^322]: Kerns, 16 Mar. 1995, *supra* note 56.

[^323]: *Id*.

[^324]: DoD Guidance, *supra* note 6.

[^325]: *See id*.

[^326]: Sikes Act Improvement Act § 2904(a).

[^327]: [National Military Fish and Wildlife Association, The Annotated
    Sikes Act as Amended Through Dec. 1997 3 (1998)]{.smallcaps}.

[^328]: *Id*. (referring to DoD budget priority classifications); *see
    supra* notes 299-305 and accompanying text.

[^329]: Stout, June 29, 1994, *supra* note 92.

[^330]: *Id*.

[^331]: Interview with Dr. J. Douglas Ripley, Natural Resources Manager,
    Headquarters U.S. Air Force Environmental Division, Pentagon,
    Arlington, Virginia (Apr. 13, 1998).

[^332]: *Natural Resource Management on Military Lands: Hearings on H.R.
    3300 and H.R. 2080 Before the Subcomm. on Military Installations and
    Facilities of the House of Representatives Comm. on Armed Services*,
    103^rd^ Cong. 147 (1994).

[^333]: Sikes Act Improvement Act § 2904.

[^334]: DoD Guidance, *supra* note 6.

[^335]: *Id.*

[^336]: *See* *supra* notes 111-117 and accompanying text.

[^337]: 118 S.Ct. 1665 (1998).

[^338]: *Id*. at 1668

[^339]: West Virginia Division of Izaak Walton League of America, Inc.
    v. Butz, 522 F.2d 945 (4^th^ Cir. 1975) (holding that several Forest
    Service contracts allowing clearcutting in the Monongahela National
    Forest of West Virginia did not comply with the Organic Act of
    1897).

[^340]: [Coggins]{.smallcaps}, *supra* note 140, at 641.

[^341]: *Id*.

[^342]: Ohio Forestry Association, 118 S.Ct. at 1668 (citations
    omitted).

[^343]: *Id.* (citations omitted).

[^344]: *Id.* Among the requested relief, plaintiffs sought a
    declaration that the plan was unlawful and an injunction prohibiting
    the defendants from permitting or directing further timber harvest
    and/or below-cost timber sales until the plan was revised. *Id*.

[^345]: Ohio Forestry Association, 118 S.Ct. at 1666.

[^346]: *Id.* at 1670 (citations omitted).

[^347]: *Id.* at 1668 (citations omitted).

[^348]: *Id.* at 1669.

[^349]: *Id.* at 1668.

[^350]: *Id.* at 1668-69.

[^351]: *Id.* at 1670 (citing Abbott Laboratories v. Gardner, 387 U.S.
    136, 148-149 (1967)).

[^352]: *Id.*

[^353]: *Id.* (citing United States v. Los Angeles & Salt Lake R. Co.,
    273 U.S. 299, 309-310 (1927)).

[^354]: *Id.* at 1671-72.

[^355]: DoDI 4715.3, *supra* note 11, encl. 7.

[^356]: *Id*.

[^357]: *See* 16 U.S.C.A. § 1604(a) (LRMP must be revised as
    appropriate); Sikes Act Improvement Act of 1997, Pub. L. No. 108-85,
    § 2904, 111 Stat. 1629 (1997) (calling for periodic review and
    revision of INRMPs).

[^358]: Note that ripeness will probably not be a winning issue for the
    agency on challenges based on failure of the INRMP to comply with
    NEPA. As the *Ohio* *Forestry Association* Court pointed out, "\[a\]
    person with standing who is injured by a failure to comply with the
    NEPA procedure may complain of that failure at the time the failure
    takes place, for the claim can never get riper." Ohio Forestry
    Association, 118 S.Ct. at 1672.

[^359]: Ohio Forestry Association, 118 S.Ct. at 1671.

[^360]: *Id.* (citations omitted).

[^361]: *Id*.

[^362]: *Id*.

[^363]: *Id*. at 1672.

[^364]: *Id*.

[^365]: *Id*. at 1672-73 (argument fatally flawed because it first
    appears in briefs to Supreme Court on the merits).

[^366]: *Id*. at 1673.