The Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and Department of Defense (DOD) Readiness Activities: Background and Current Law
Released: 2004-08-09T00:00:00

Introduction

This report provides a brief overview of how the Endangered Species Act (ESA) (1) and theMigratory Bird Treaty Act (MBTA) (2) and theirrelevant regulations may apply to military training andreadiness activities of the Department of Defense (DOD). Military activities may "take" protectedcreatures directly ( e.g ,. killing with ordnance during rifle, gunnery or assault drills), or might destroyhabitat (e.g., artillery or bombing practices), even if these results are not the purpose of the activities. The applicability of the MBTA and ESA to military readiness activities has been controversialrecently and legislation has been enacted in both the 107th and 108th Congresses on thesetopics.

Although bills in the 107th Congress addressed both the ESA and the MBTA, P.L. 107-314 addressed only the MBTA. Section ï¿½ 315 of that act directs that new MBTA regulations bedeveloped to exempt the Armed Forces for incidental taking of migratory birds during militaryreadiness activities. (3) Until such regulations arefinalized, ï¿½ 315 provides that the prohibitions of theMBTA do not apply to the incidental taking of migratory birds by a member of the Armed Forcesduring military readiness activities. However, during the interim period the Secretary of Defense,in consultation with the Secretary of the Interior, is to minimize and mitigate, to the extentpracticable, adverse impacts of the readiness activities on affected migratory birds. Judicial reviewis preserved, but expedited in that challenges to the regulations directed by the act must be filed notlater than 120 days from the date the regulations are published in the Federal Register. This act isdiscussed more fully below.

In the 108th Congress, the Administration sent proposals for legislative changes regarding the ESA and other environmental statutes to the Congress. Both S. 1050 and H.R. 1588 addressed designation of critical habitat under the ESA. H.R. 1588passed the House on May 22, 2003. The Senate amended H.R. 1588 to substitute the textof S. 1050 , and passed the measure on June 4, 2003. The ESA-related language waschanged in conference and H.R. 1588 became P.L. 108-136 , the National DefenseAuthorization Act for Fiscal Year 2004. The new language that was ultimately enacted as P.L.108-136 precludes the designation of critical habitat on Department of Defense lands that are subjectto an integrated natural resources management plan under the Sikes Act, if the Secretary determinesin writing that the plan provides a benefit to the species for which critical habitat is proposed fordesignation. The duties of defense agencies to consult under ï¿½ 7 of the ESA and to comply with theprohibitions of ï¿½ 9 of the ESA, including the "take" provisions, expressly continue to apply. P.L.108-136 also requires that impacts on national security be considered when any critical habitat isdesignated.

This report discussed the statutes and issues involved and the various proposals regarding the ESA and MBTA. It will be updated as circumstances warrant. (4)

The Endangered Species Act

The ESA is a federal statute that attempts to prevent the extinction of species of plants andanimals by providing special protections to those species listed as "endangered" (those in danger ofextinction throughout all or a significant portion of its range, other than certain insect pests) (5) or"threatened" (those so declining as to be likely to become endangered within the foreseeablefuture), (6) and to foster the "conservation," or recovery,of those species to the point where they nolonger need the protections of the act. (7)

Applicability to Federal Activities. The ESA expressly applies to activities of the federal government. The act defines "person" as including "anyofficer, employee, agent, department, or instrumentality of the Federal Government ...." (8) "Federalagency" is defined as any department, agency, or instrumentality of the United States. (9) The ESArequires several things of all federal agencies:

1) that "a person" not "take" any species of fish or wildlife listed as endangered. (10) Take includesharassing, harming, pursuing, hunting, shooting,wounding, killing, trapping, capturing, or collecting, or attempting to do any of these things. "Harm"is defined in a regulation as including destruction of habitat that kills or injures wildlife bysignificantly impairing essential behavior patterns, including breeding, feeding, orsheltering. (11)

2) that agencies insure that actions they approve, fund, or carry out, not be likely to jeopardize the continued existence of any endangered species or resultin the destruction or adverse modification of habitat designated by the appropriate Secretary ascritical to a species. To this end, each agency is to consult with the Fish and Wildlife Service (FWS)or the National Marine Fisheries Service (NMFS), as appropriate, to avoid such jeopardy ordestruction. (12)

3) that all non-Department of Interior agencies have a duty to utilize their authorities "in furtherance of the purposes of [the Act]," (13) (one of which is the"conservation," of species), and this is declared to be the policy of Congress as well. (14) The terms"conserve" or "conservation" are defined basically as bringing a species to the point where it nolonger needs the protections of the Act, (15) and thusgoes beyond merely avoidingjeopardy.

Exceptions for Federal Activities That "Take". The ESA contains several alternatives by which DOD activities could proceed despite a likelihoodthat members of a listed species might be taken. First, the ï¿½7 consultation procedure allows thetaking of listed creatures if the FWS or NMFS concludes that the action will not jeopardize thecontinued existence of a listed species. (16) Anagency may be required to adopt reasonable andprudent alternatives to its original proposed action and to comply with other terms and conditionsrequired by the Secretary of the Interior. (17)

In instances of irreconcilable conflict between a desired agency activity and the avoidance of jeopardy, the ESA provides an exemption process whereby a high-level "Endangered SpeciesCommittee" may be convened to consider a possible exemption from the penalties of the act for anagency action. (18) The process for obtaining anexemption is somewhat rigorous and time-consumingand the exemption process has seldom been utilized. The process also seems to contemplateexemptions for particular, individual, proposed agency actions, rather than for generic or recurringtypes of activities.

An exemption cannot be granted if the Secretary of State, after a review of the proposed agency action, certifies that granting the exemption and carrying out an action would violate an internationaltreaty obligation or other international obligation of the United States. (19) This provision might affectthe availability of an exemption for military readiness activities that would destroy migratory birds.

Notwithstanding any other provision of the act, under ï¿½7(j) of the ESA (16 U.S.C. ï¿½1536(j)), an exemption must be granted for an agency action if the Secretary of Defense finds the exemptionis necessary for reasons of national security. However, this alternative is only available as part ofthe Committee process, and apparently would only apply to a particular national security activity thatis likely to jeopardize the continued existence of the species in question. An exemption under thissection of the act has never been sought, nor have there been any attempts to administrativelydevelop general exemptions for on-going or recurring activities.

The Migratory Bird Treaty Act

Application to Federal Activities. The MBTAis less clear than the ESA in several respects, including its applicability to federal activities. TheMBTA is a criminal environmental statute, enacted in 1918 to implement the InternationalConvention for the Protection of Migratory Birds signed by the United States and Great Britain(acting for Canada) only a few years earlier. (20) Section 2 (16 U.S.C. ï¿½703) sets out the types ofprohibited conduct and states: "Unless and except as permitted by regulations ... , it shall be unlawfulat any time, by any means, or in any manner, to pursue, hunt, take, capture, kill, attempt to do theseacts, [or] possess ... any migratory bird, [or] any part, nest, or eggs of any such bird ...." None ofthese terms is defined in the act. (21) Note that"harm," a term used in the ESA that encompassessignificant habitat destruction, is not present in the MBTA. Section 6 (16 U.S.C. ï¿½707) makes "anyperson, association, partnership, or corporation" who violates the MBTA or regulations thereundersubject to penalties. "Person" is not defined.

Courts have split on the issue of whether the MBTA applies to federal agencies. The Supreme Court assumed without discussion that ï¿½2 applied to Forest Service and Bureau of Land Managementlogging planning decisions for lands inhabited by a bird protected by the MBTA. (22) In 1997, twocircuit-court decisions, both involving Forest Service timber sales, held that the MBTA does not apply to federal agencies. Each circuit - the Eighth Circuit in Newton County Wildlife Ass'n v. U.S.Forest Service , (23) and the Eleventh Circuitin Sierra Club v. Martin (24) - drewsupport for thisconclusion from the ï¿½6 criminal penalties language that mentions "any person, association,partnership, or corporation," terms that these courts concluded did not include the United States. Considering the MBTA as a whole, they found no violation of the MBTA by the federal agencies- which apparently means they concluded that ï¿½2 (articulating what is unlawful behavior) also didnot apply as a matter of law.

However, in Humane Society of the United States v. Glickman , (25) involving a Department ofAgriculture goose management plan, the District of Columbia Circuit ruled in favor offederal-agency coverage, noting that ï¿½2 neither premises its prohibitions on the acts of "any person,"nor makes an exception for federal agencies. Even assuming that "person" under the separatepenalty provisions of ï¿½6 does not reach federal agencies, the court continued, this is not dispositivein that the MBTA can be enforced by means other than criminal penalties - in particular, byinjunction. The Department of the Interior decided not to appeal Humane Society .

Most recently, the United States District Court for the District of Columbia in Center for Biological Diversity v. Pirie , (26) held thatthe United States had violated the MBTA by its live firemilitary training activities that killed migratory birds on an island in the Marianas without a permit. The court again noted that ï¿½2 (addressing unlawful acts) is worded generally, and that relief otherthan criminal penalties was available in the form of injunctive relief. The court initially ruled onlyon the liability issue, asked for additional briefing on many questions, including the availability andstructuring of possible injunctive relief. The court subsequently enjoined the Navy from continuingits activities and required it to apply for a permit from FWS. On June 5, 2002, the court stayed theinjunction, thereby allowing training activities to continue, and expedited the briefing schedule.

The MBTA is unclear in other ways as well. Because the definition of "take" does not include "harm" or "harass," as does the ESA, the application of the act to habitat destruction or other indirecttake is unclear. It also lacks the express recognition of "incidental take" that ï¿½10 and (byimplication) ï¿½7 of the ESA contain, and there has been some confusion between "unintentional"takes relevant to possible convictions under ï¿½6 of the act, and "incidental" takes, where a deliberateaction taken for a particular purpose also results in a taking or killing. These distinctions areimportant to military readiness activities where deadly force may be used that kills protected birdsand destroys habitat, but where such killing or destruction is not the purpose of the activities.

"Intent". Courts applying a criminal statute may need to probe the "scienter" of a defendant - the defendant's intent or knowledge of facts that areelements of the crime. Intent in this sense may focus of whether a defendant intended to do the actsthat resulted in the harm, regardless of whether the exact results that ensue were intended. At times,lay people confuse "unintended" used in the context of criminal provisions with "incidental" as thatterm is used in the ESA, meaning the actions were taken intentionally, but were for a differentpurpose. Courts have often concluded that intent is immaterial to misdemeanor violations underï¿½6(a) of the MBTA - that if a person commits acts that kill a protected bird, that is a violation. (27) Incontrast with the misdemeanor provision, a felony under ï¿½6(b) results only when the defendant"knowingly" either takes a migratory bird (with intent to sell) or sells or attempts to sell such birds. (28) The word "knowingly" was added by a 1986 amendment. (29) The Navy in the Pirie case may haveconfused unintentional acts with incidental acts when it essentially argued that it had not violatedthe MBTA because it did not intend to kill birds - in the sense that killing the birds was not thepurpose of its actions. The Pirie court noted (p. 35) that the Navy knew it was killing birds, eventhough that was not the Navy's purpose; that the MBTA applies to both intentional and unintentionaltakings (p. 36); and that the prosecutorial discretion of the FWS did not make the Navy's actionsunreviewable (p. 44).

Direct vs. Indirect Take. Other cases involve discussions of possible MBTA liability for direct vs. indirect, and incidental takes. In SeattleAudubon Society v. Evans , (30) the NinthCircuit addressed claims that the MBTA prohibits the ForestService and Bureau of Land Management from logging timber from lands that may provide habitatfor a protected bird. In rejecting this claim, the court held that previous cases only addressed direct ,though unintended, bird deaths. They do not suggest, the Ninth Circuit said, that habitat destruction,leading indirectly to bird deaths, is a "taking" under the MBTA. The court bolstered this conclusionby juxtaposing the MBTA, which does not include "harm," with the ESA, which does. In revealingcontrast, noted the court, neither the MBTA nor its regulations makes any mention of habitatmodification. Rather, MBTA regulations describe, in the words of the court, "physical conduct ofthe sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the timeof the statute's enactment in 1918." (31)

There evidently is even some confusion as to what constitutes direct harm. Since Seattle Audubon , other cases have found no takings, even, for example, for the harvesting of trees duringnesting season, which arguably killed birds directly. (32) The courts in both Mahler and NewtonCounty (33) quoted the "conduct of the sortengaged in by hunters and poachers" language from SeattleAudubon in seeming to rule out MBTA coverage of timbering under any circumstances. (34) Anotherpost- Seattle Audubon decision to the contrary merely assumed that timber cutting couldviolate theMBTA, and thus is weak precedent. (35)

Permits. Under ï¿½2 of the MBTA, those takes that are not permitted under the regulations are unlawful; the Pirie case faulted the Navy for conductingits live fire training operations without a permit. Although the regulations set out many types ofpermits, none currently specifically address DOD training or readiness activities. Evidently, variousDOD activities have been permitted in the past under the permit to kill depredating birds, (36) but theFWS denied a permit for the training exercises in question in Pirie . "Special purpose" permits (37) maybe issued for activities related to migratory birds which are otherwise outside the scope of thestandard form permits if an applicant presents a "compelling justification." However, there are nocurrent standards for permitting or regulating military readiness and training activities, and thispermit has not been used to date. The Pirie court noted that the FWS had refused to issue the Navya permit because FWS asserted that it lacked the authority to issue permits authorizing unintended conduct (p. 13) (by which they appear to have meant incidental conduct). If this remains the positionof the FWS, special purpose permits may continue to be unavailable to the Navy. The court askedfor additional briefing on the permit authority of FWS under the MBTA, and subsequently enjoinedthe Navy from additional activities, while also ordering the Navy to apply for a permit. The courtnoted that FWS had denied the permits in the past, and therefore a temporary injunction wasappropriate. The court also stated that it would take prompt action if there were either administrativeor congressional action (May 1, 2002 Order, at 19). (38) The Navy has applied to FWS for a specialpurpose permit and action is currently pending. On June 5, 2002, the court stayed its injunction,thereby allowing training activities to continue.

Executive Order. An executive order signed by President Clinton imposes additional obligations on federal agencies to protect migratory birds. (39) Section 2 of the executive order defines "take" as defined in 50 C.F.R. ï¿½10.12, (40) and as includingboth "intentional" and "unintentional" take. It defines "intentional take" as take that is the purposeof the activity in question, and "unintentional take" as take that results from, but is not the purposeof, the activity in question (again confusing unintentional and incidental takes). The order thencommands each federal agency whose actions are likely to have a "measurable negative effect" onmigratory birds to enter into a memorandum of understanding with the Fish and Wildlife Service,to the extent permitted by law, to "minimize" the intentional take of species of concern, and "lessen"the amount of unintentional take.

The executive order's definition of "take" is not dispositive for purposes of divining the meaning of "take" as used in the MBTA, of course, though a court might accord it some persuasivevalue.

107th Congress

House Bills

Section 311 of H.R. 4546 as Passed by House - Changes to the MBTA. Sections 311 and 312 of H.R. 4546 as passed by theHouse would have amended the MBTA and ESA respectively. It will be recalled that the Pirie casefound that the military training activities of the Navy conducted on an island in the Marianas violatedï¿½2 of the MBTA. Evidently, according to that case, the Navy in that instance was conductingoperations without a permit, based on the initial position of the FWS that the FWS lacked theauthority to issue a permit for incidental taking of protected birds. The training activities in questionare seen as crucial to the Navy, and are frequent and recurring, a type of activity not easilyaccommodated under the current system. The FWS later concluded that it did have the authority toissue permits.

Section 311 would have amended ï¿½3 of the MBTA (which authorizes the Secretary of the Interior to promulgate regulations to implement the act), by adding a new subsection that defines"military readiness activity" and provides that "Section 2 shall not apply to the incidental taking ofa migratory bird by a member of the Armed Forces during a military readiness activity authorizedby the Secretary of Defense or the Secretary of the military department concerned." (Emphasisadded.)

Because ï¿½2 of the MBTA, as discussed above, sets out what behavior is unlawful under that act, ï¿½ 311 would appear to have made all incidental take of migratory birds during military readinessactivities lawful. The provision did not require the military to prioritize readiness activities, or toavoid or minimize harm, nor was any permitting process established or required, despite Committeereport language to that effect. (41) If ï¿½2 did "notapply" to readiness activities, arguably there wasnothing that needed a permit. These provisions were changed significantly in the final enactment. See the discussion of P. L. 107-314 below.

Section 312 of H.R. 4546 - Changes to the ESA. Section 312 of H.R. 4546 as passed by the House would haveeliminated the designation of critical habitat on military lands that were "subject to" an integratednatural resources management plan (INRMP) under the Sikes Act, (42) and if the Secretary determinedthat such a plan "addressed" special management considerations or protection (as those terms areused in section 3(5)(A)(i));" two requirements that were somewhat vague as to what might berequired. This provision was not enacted, but similar provisions are contained in theAdministration's proposal in the 108th Congress and are discussed more fully under that part of thisreport. In addition, although the ESA currently allows the Secretary to consider "all relevantimpacts" during the designation process, ï¿½312 would have added "the impact on national security"after "the economic impact," thereby expressly requiring consideration of national security issuesduring any designation process. (43)

Senate Bills

S. 2514 , reported by the Senate Armed Services Committee did not contain ESA and MBTA provisions. However, S. 2225 did contain such provisions, which arediscussed here. Section 1201 of S. 2225 would have added a new chapter to Title 10of the United States Code to address the relationship of military readiness activities to the ESA andMBTA and certain other topics beyond the scope of this report. A new ï¿½2016 would have addeddefinitions of "military readiness activities" and "combat" or "combat use" that were similar to thosein the House bill.

ESA Provisions. New ï¿½2017 would have addressed the ESA and the MBTA (and marine mammal protection as well). As to the ESA,ï¿½2017(a) would have stated that completion of an INRMP under the Sikes Act that "addresses"endangered or threatened species and their habitat per se would provide the "special managementconsiderations or protections" that are part of the definition of what might constitute critical habitatin the ESA. The INRMP plan, S. 2225 continues, "precludes designation of criticalhabitat" for the lands or areas covered by the Sikes Act plan. This provision differs from the Houseversion in that it expressly requires a completed Sikes Act plan, but is similar to the House languagein that it would eliminate critical habitat designation on those lands if there is an INRMP that"addresses" species. Therefore, the comments made above with respect to the this language applyto the Senate provision as well.

MBTA Provisions. New ï¿½2017(b) would have provided that DOD military readiness activities would be authorized "without further action by theSecretary of the Interior" provided that DOD must "minimize taking of migratory birds to the extentpractical and necessary" to further the purposes of the act (by which it is not clear whether theMBTA or the new statute is intended), "without diminishment of military training or othercapabilities, as determined by the Department."

This language might have eliminated the issuance of a permit by the Secretary of the Interior for DOD military readiness activities. It also required DOD to minimize taking of migratory birds,to the extent practical and necessary "without diminishment" of military training or othercapabilities. It is not clear to what extent the "without diminishment" wording might affect thenumber of takings. The remainder of the sentence refers to takings "resulting from military trainingor other capabilities" and it is not clear what activities were encompassed within this phrasing, sinceonly "military readiness activities" was defined in the bill. Therefore, the scope of the waiver wasnot clear. In addition, the relevant determinations were to be made by the Department, and as suchmight not have been reviewable by a court.

P.L.107-314, enacted December 2, 2002.

The enacted version of H.R. 4546 (44) is silent on the ESA, but ï¿½ 315 provides fornew interim MBTA provisions, and the conference report discusses the ESA.

MBTA. Section 315 provides that during a period of time, ï¿½ 2 of the Migratory Bird Treaty Act (which makes taking listed migratory birdsunlawful) does not apply to the incidental taking of a migratory bird by a member of the ArmedForces during a military readiness activity authorized by the Secretary of Defense or the Secretaryof the military department concerned. Military readiness activity is defined in subsection (f) asincluding (A) all training and operations of the Armed Forces that relate to combat; and (B) theadequate and realistic testing of military equipment, vehicles, weapons, and sensors for properoperation and suitability for combat use. Other activities are expressly excluded from the definition,including "routine operation of installation operating support functions" (with several examples setout), operation of industrial activities, and the construction or demolition of facilities used for thesepurposes.

The period during which the interim provisions are to be in effect is to last from the date of enactment until whenever new regulations to exempt the Armed Forces for the incidental taking ofmigratory birds during military readiness activities are "prescribed," all challenges to them have beenexhausted, and the regulations have taken effect. The regulations were to have been developed bythe Secretary with the concurrence of the Secretary of Defense, and be "prescribed" not later thanthe expiration of the one-year period beginning on the date of enactment. It is not clear whether thismeans the regulations need only be proposed within the one-year time, or must be finalized withinthat time. The explanatory material in the conference report does not answer this question, butarguably the section read as a whole seems to mean the regulations were to be completed within thattime. (45) Judicial review of the regulations ispreserved, but is expedited in that all challenges mustbe filed within 120 days of the date the regulations appear in the Federal Register.

During the interim period in which the Armed Forces are exempted from the prohibitions of the MBTA, the Secretary of Defense, in consultation with the Secretary of the Interior, is to identifymeasures to minimize and mitigate, to the extent practicable, any adverse impacts of authorizedmilitary readiness activities on affected species of migratory birds, and to monitor the impacts ofmilitary readiness activities on affected species.

New regulations were proposed on June 2, 2004, (46) well after the deadline. Under the proposedregulations, the taking of migratory birds incidental to military readiness activities would beauthorized, but with certain limitations. If the Secretary determines after seeking the views of theSecretary of Defense and consulting with the Secretary of State, that the taking of migratory birdsin connection with a specific military readiness activity would not be compatible with one or moreof the migratory bird treaties, the Secretary must suspend the authorization of the take associatedwith that activity. If the activity may result in a significant adverse effect on the sustainability of apopulation of a migratory bird species of concern and one or more of stated circumstances exists,the Secretary may propose to withdraw the take authorization. Significant adverse effect on thesustainability of a population is defined as an effect that could result in a population no longer beingmaintained at a 'biologically viable level for the long term.' Being biologically viable for the longterm, in turn, means the ability of the population to maintain its genetic diversity, to reproduce, andto perform its role or function in its native ecosystem. (47)

The circumstances that may be present and result in a proposal to withdraw take authority involve such things as failure of DOD to implement conservation measures or to conduct mutuallyagreed upon monitoring, or to provide information. A proposal to withdraw authorization must bemade in writing and provided to the Secretary of Defense. DOD may notify the Secretary of theInterior of any objections and possibly also meet with the Secretary. Withdrawal proposals orsuspensions may be cancelled if DOD modifies the proposed activity to alleviate significant adverseeffect on the sustainability of a population, or the additional circumstances no longer exist.

The term Secretary of Defense is defined as including the Department of Homeland Security (DHS) with respect to military readiness activities of the United States Coast Guard, but some of thesubstantive provisions of the proposed regulations are worded in terms of actions taken by the Department of Defense. These provisions may need to be clarified to make the intended applicabilityto DHS clear and consistent.

ESA. P.L. 107-314 is silent as to ESA issues, butthe explanatory material in the conference report states that while compliance with environmentallaws is expected, "unique challenges" often face the Armed Forces, one of which is the balancingof habitat protection with necessary activities. The conference report calls for the Secretary ofDefense to provide the relevant committees with recommendations for legislative proposals theSecretary considers necessary to accomplish avoidance of designation of critical habitat on bases thatcould affect military training through protections provided by Integrated Natural ResourcesManagement Plans, and recommendations on pursuing a cooperative approach in managing naturaland cultural resources throughout the Armed Forces. The relevant text of the conference report readsas follows:

The conferees believe that all federal agencies, including the Armed Forces, should be required to comply with all federal environmental laws. However, due to their unique military training and operational responsibilities, the Armed Forcesoften face unique challenges in balancing the obligations to comply with environmental laws andsustain military readiness. Examples of these challenges include increasing limitations andrestrictions on lands and waters which are currently set aside for military training exercises as wellas significant restrictions on the times and conditions under which military training exercises can beconducted. The conferees are concerned that future designations of critical habitat on militarytraining ranges could have an adverse impact on the military's readiness capabilities.

The conferees strongly endorse the consultative process through which the military services work with the Fish and Wildlife Service to ensure theprotection of threatened and endangered species by adopting effective Integrated Natural ResourcesManagement Plans at military installations. The conferees are concerned that questions have beenraised regarding whether the protections provided by these Integrated Natural ResourcesManagement Plans, such as the one at Marine Corps Base, Camp Pendleton, California, aresufficient to avoid the need for future designations of critical habitat that could adversely affectmilitary training. Nevertheless, the conferees encourage the Department of the Interior and theDepartment of Defense to pursue a cooperative approach in managing natural and cultural resourcesthroughout the Armed Forces.

The conferees direct the Secretary of Defense to provide the Committees on Armed Services of the Senate and the House of Representativesrecommendations for any legislative proposals that he considers necessary to accomplish these statedgoals. (48)

108th Congress

The Administration submitted a legislative proposal to the 108th Congress that again addressedthe designation of critical habitat on Department of Defense lands. The proposal stated that anIntegrated Natural Resources Management Plan (INRMP) completed under the Sikes ActImprovement Act for lands or "other geographical areas" owned or controlled by DOD or designatedfor its use that "addresses" endangered or threatened species and their habitat "provides the 'specialmanagement considerations or protection' required under the ESA and precludes designation ofcritical habitat for the lands, but does not eliminate the ï¿½ 7 requirement to consult on actions likelyto jeopardize the continued existence of listed species. The full text of the Administration's proposalreads:

2017. Military readiness and the conservation of protected species

(a) The completion of an Integrated Natural ResourcesManagement Plan, pursuant to the Sikes Act Improvement Act (16 U.S.C. 670a), for lands or othergeographical areas owned or controlled by the Department, or designated for its use, that addressesendangered or threatened species and their habitat, provides the 'special management considerationsor protection' required under the Endangered Species Act (16 U.S.C. 1532(5)(A)) and precludesdesignation of critical habitat for any such land or geographical areas under section 4 of theEndangered Species Act (16 U.S.C. 1533).

(b) This section does not remove the requirement foragency consultation under section 7(a)(2) of the Endangered Species Act (16 U.S.C. 1536(a)(2)).

H.R. 1588 , as passed by the House on May 22, 2003, took a similar approach - but with important differences that will be discussed - and also added an additional express requirementthat impacts on national security be considered when critical habitat is designated.

Current law recognizes that habitat destruction is a very important factor in the endangerment of species, (49) and the appropriate Secretary is todesignate critical habitat, which is defined in part asareas in which are found physical or biological features essential to the conservation of the speciesand which may require special management considerations or protection. (50) The appropriateSecretary is to designate critical habitat on the basis of the best scientific data available and aftertaking into consideration the economic impact, and "any other relevant impact," of specifying anyparticular area as critical habitat. The Secretary also may exclude any area from designation if hedetermines that the benefits of exclusion outweigh the benefits of specifying an area, unless hedetermines, based on the best scientific and commercial data available, that failure to designate anarea as critical habitat will result in the extinction of the species concerned. (51)

The Sikes Act (52) requires a planning process for military installations, which are defined as anylands or interest in lands owned by the United States and administered by the Secretary of Defenseor a military department (except those for civil works) and includes all public lands withdrawn orreserved for use by the Secretary of Defense or a military department. (53)

The Sikes Act planning process is not the same as the designation of critical habitat process under the ESA. Under the Sikes Act, the Secretary of Defense is directed to carry out a program toprovide for the conservation and rehabilitation of natural resources on military installations, (54) andthe Secretary of each military department is to prepare and implement an integrated natural resourcesmanagement plan for each military installation unless an installation lacks significant naturalresources. (55)

These plans are to be developed in cooperation with the Secretary of the Interior, acting through the Director of the FWS and the head of each appropriate state fish and wildlife agency. (56) Consistentwith other federal law, and consistent with the use of military installations to ensure the preparednessof the Armed Forces, a plan shall "to the extent appropriate and applicable," provide for fish andwildlife management, land management, forest management and fish and wildlife-orientedrecreation, habitat enhancement or modifications, enforcement of applicable natural resources lawsand regulations, and other things, but with "no net loss" in the capability of military installation landsto support the military mission of the installation. (57) There are no express standards or requirementswith respect to endangered or threatened species, and the ESA presumably currently functions as anoverlay of requirements when listed species are present.

In contrast, a critical habitat designation is developed based on the best available scientific information with the conservation of endangered species as the goal. A designation may includemilitary lands, but without military preparedness as a focus. Some have argued that clarification ofthe way in which the two purposes - that of protecting endangered species and that of maintainingmilitary training and readiness - are to be reconciled would be advisable, and that some means ofprioritizing the military needs and better facilitating their accomplishment within parameters mightalso be desirable. Others assert that the need for special provisions has not been adequatelydemonstrated.

H.R. 1588 as passed by the House would have precluded designation of critical habitat if the relevant Secretary determines that an INRMP "addresses" "special managementconsiderations or protection" as those terms are used in the ESA. "Addresses" is a general term andthe provision does not contain any standards with which compliance is required or which wouldestablish equivalence with the "special management considerations or protection" referenced in theESA. Therefore, there would appear to be broad administrative discretion in determining how muchdetail a plan must contain to "address" listed species and provide protections, and the adequacy ofINRMPs appears difficult for a court to review.

Several administrative interpretations bear on this legislative language. The FWS and others have asserted that designation of critical habitat provides little additional protection to most listedspecies beyond the protections provided by the requirement to avoid jeopardy anyway. (58) To theextent this assertion appears to be true, it arises from a FWS regulation that has now been held to beunlawful. It will be recalled that under the ESA federal agencies must consult on actions that either might jeopardize a species or cause the destruction or adverse modification of critical habitat. However, the FWS has conflated these two duties by defining "destruction or adverse modification"as meaning "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species ..." (59) and then interpreting this last phrase asessentially meaning "survival," and therefore as being synonymous with jeopardy in most instances. (60) Because it conflated two statutory requirements, the agency then concludes that designation ofcritical habitat generally adds nothing that is not already covered by the jeopardy concept. As aresult, the FWS has given designation a very low priority, (61) substituting instead general agencyassertions that agency consideration of habitat needs and effects has been adequate. However, thecourts have found that the agency does have a duty to designate critical habitat, (62) and the regulationin question has been held to be unlawful.

The United States Court of Appeals for the Fifth Circuit has held (63) that 50 C.F.R. ï¿½402.02 isfacially invalid in that it requires consultation with respect to an agency's destruction of criticalhabitat if both survival as well as recovery of a species is affected - which standard devolves to ajeopardy standard in practice in almost all cases. The court noted that the ESA defines criticalhabitat as that which is 'essential for the conservation' (i.e. recovery) of a species - a much moregenerous standard that could encompass more habitat. By equating destruction of critical habitatwith jeopardizing a species, the regulatory interpretation eliminated the role of critical habitat andrendered statutory language surplusage, and was not a valid interpretation. A federal district courtin another circuit has recently concurred in this interpretation. (64) If the FWS interpretation of criticalhabitat has incorrectly assigned it a minor role in species protection, then altering critical habitatprotections on military lands arguably may raise important issues.

Also, the ESA defines "critical habitat" as "areas ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require specialmanagement considerations or protection; and ...." (Emphasis added.) The FWS has interpretedthis language (65) as meaning that if a managementplan exists that provides special management andprotection measures for an area, that area no longer meets the definition of critical habitat and cannotbe designated:

Special management and protection for the species are not required if adequate management and protection are already in place. Adequate management orprotection is provided by a legally operative plan/agreement that addresses the maintenance andimprovement of the primary constituent elements important to the species, and that manages for thelong-term conservation of the species .... We consider several factors to determine if a plan providesadequate management or protection. These factors are: (1) Whether there is a current planspecifying the management actions and whether such actions provide sufficient conservation benefitto the species; (2) whether the plan provides assurances that the conservation management strategieswill be implemented; and (3) whether the plan provides assurances that the conservationmanagement strategies will be effective ( i.e. , provide for periodic monitoring, adaptive management,and revisions as necessary). If all of these criteria are met, then the lands covered under the planwould likely no longer meet the definition of critical habitat and designation would no longer beappropriate. (66)

A recent district court case has said of the analogous situation of management plans on Forest Service and Tribal lands, that this FWS interpretation of the ESA definition of critical habitat is"nonsensical" (67) and a "tortured construction ...impermissible and contrary to law." (68) The courtfeltthe statutory language meant that habitat that may need special management and protections waseligible for critical habitat designation - regardless of whether other special management andprotection might be provided. The court further noted that the FWS interpretation would eliminate"a crucial part" of the ï¿½ 7 consultation requirement - that federal agencies consult on adversemodification of critical habitat, and that other recent court cases on related matters should have putFWS on notice that its approach was "untenable and in contravention of the ESA." (69)

As passed by the House, H.R. 1588 would have amended the ESA to essentially incorporate the FWS interpretation of the definition of critical habitat that the courts havequestioned. The bill states that the Secretary [of Interior or Commerce] shall not designate DODlands as critical habitat that are subject to an INRMP if the Secretary determines that such planaddresses special management considerations or protection as those terms are used in the ESA. (Emphasis added.) As discussed in the preceding section of this report, however, at least one courthas now determined that the FWS reading of those terms is not how they actually are used in the act.

H.R. 1588 expressly required consideration of the impact on national security whenever the Secretary considers designating critical habitat. The House-passed bill also wouldhave preserved the duty to consult under ï¿½ 7 of the ESA and to comply with the prohibitions of ï¿½ 9of that act.

S. 1050 , as passed on May 22, 2003 would have precluded designation of critical habitat on DOD lands if the Secretary determined in writing that the management activities identifiedin an INRMP would "effectively conserve" listed species in the area covered by the plan, and thatthe plan provides assurances that adequate funding will be provided for such management activities. The "effectively conserve" language arguably would have imposed a more strict requirement thanthe current interpretation of FWS.

Under the ESA, all federal agencies have a general duty to "conserve" species, which means to bring them to the point where they no longer need the protections of the act, i.e. to recover them. (70) Critical habitat is that which is "essential to the conservation of the species." The Senate language- by requiring that the management activities identified in an INRMP effectively conserve listedspecies - arguably is broad and addresses the general duty to conserve, rather than speaking only tosome requirement equivalent to designating critical habitat. The Senate provision would have beenan addition to Title 10 of the United States Code, rather than an amendment to the ESA, and onlyaddressed the Secretary of Interior and not ESA-related actions that might be taken by the Secretaryof Commerce. The Senate language also would not affect the requirement to consult under ï¿½ 7 ofthe ESA, but did not add an express requirement to consider impacts on national security to theelements that must be weighed in designating critical habitat.

P.L. 108-136

The enacted language on critical habitat differs from both the House and Senate bills. Section 318(a) of P.L. 108-136 precludes the designation of critical habitat on lands owned or controlled bythe Department of Defense, or designated for its use, that are "subject to" an INRMP under the SikesAct, if the Secretary determines in writing that "such plan" "provides a benefit" to the species "forwhich critical habitat is proposed" for designation. This language is somewhat ambiguous in thatmost DOD lands are "subject to" having an INRMP under the Sikes Act. Assuming that theintended meaning is that the DOD lands have in place a completed INRMP, that plan must bedetermined to "provide a benefit" to a listed species - arguably a low threshold for the Secretary todemonstrate. The conference report states:

... This approach would allow for a balance between military training requirements and protection of endangered or threatened species, as pertains topending or future critical habitat designations.

The conferees would expect the Secretary of the Interior to assess an INRMP's potential contribution to species conservation, giving due regard tothose habitat protection, maintenance, and improvement projects and other related activities specifiedin the plan that address the particular conservation and protection needs of the species for whichcritical habitat would otherwise be proposed. Consistent with current practice, the Secretary wouldestablish criteria that would be used to determine if an INRMP benefits the listed species for whichcritical habitat would be proposed. (71)

The report language refers to species for which critical habitat "would otherwise be proposed,"but the statutory language refers to species for which critical habitat is proposed. The wordingcontained in the report is probably what was intended, but the enacted language arguably requiresa formal proposal of critical habitat before the findings as to INRMP coverage can be made.

Section 318(a) also adds language to section 4(a)((3) of the ESA that states that nothing in that paragraph relating to non-designation of critical habitat on DOD lands affects the requirement toconsult under section 7(a)(2) of the ESA - though it appears the new language would affectconsultation in that there could be no consultation regarding adverse modification of critical habitatif no critical habitat is designated on DOD lands where some agency action is proposed. Consultation would still occur on actions likely to jeopardize a listed species, and the prohibitionsof ï¿½9 on takings also remain - and, as discussed, takings could include harming a species throughdestruction of its habitat that kills or injures directly or through certain behavioral changes. Although the change would eliminate one subject of consultation - adverse effects on critical habitat,- the consultation process may still result in the modification of proposed agency actions or in ajeopardy opinion being rendered on other grounds, such that a military agency might still need toconsider going through the exemption process.

Section 318(b) of P.L. 108-136 requires the consideration of the impact on national security whenever the Secretary considers designating critical habitat for a species.

Section 318, as enacted, is entitled "Military Readiness and Conservation of Protected Species," but does not specifically link the new provisions on ESA compliance to military readinessactivities. (72) Section 320 directs a study of theimpact, if any, of compliance by the Department ofDefense with various environmental laws on military installations and operational ranges.

To summarize, P.L. 108-136 appears to preclude designation of critical habitat on DOD lands if an INRMP is in place that the Secretary of the Interior determines benefits listed species. Completion of an INRMP arguably is not equivalent to a requirement to designate critical habitat,in that Sikes Act INRMPs meet military objectives first and ESA objectives only secondarily - adifference that some may see as a necessary or desirable accommodation to military readiness needs,and some may not.