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CENTER FOR BIOLOGICAL DIVERSITY v. PIRIE

March 13, 2002

CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
V.
ROBERT B. PIRIE, JR., ACTING SECRETARY OF THE NAVY; DONALD H. RUMSFELD, SECRETARY OF DEFENSE, DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.

  MEMORANDUM OPINION AND ORDER
Plaintiff Center for Biological Diversity (CBD) filed this lawsuit to prevent the use by the United States military of live fire training exercises on the island of Farallon de Medinilla (FDM) because such exercises allegedly kill and otherwise harm several species of migratory birds without a permit, in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. Defendants, the Secretary of Defense Donald Rumsfeld and the acting Secretary of the Navy, Robert Pirie, have been sued in their official capacity as the heads of the branches of the military that engage in these exercises on FDM.
The case comes before the Court on the parties' cross motions for summary judgment. Plaintiffs argue that defendants' decision to continue these training exercises in light of evidence of bird deaths known to defendants and in light of the Fish and Wildlife Service's (FWS) denial of defendants' request for a MBTA permit, violates the provisions of the MBTA and consequently the APA's prohibition on unlawful agency action. Plaintiffs ask the Court to enjoin the military exercises on this island unless and until defendants obtain a proper permit for their actions. Defendants respond with several arguments. First, defendants challenge plaintiffs' standing. Second, defendants argue that regulation of the unintentional impact on migratory birds is an area properly left to prosecutorial discretion under the MBTA and is therefore an unreviewable discretionary action for purposes of the APA. Third, defendants argue that plaintiffs have identified no final agency action and therefore can not prove a violation of the APA. Finally, defendants strongly emphasize the uniqueness and importance of these training exercises to the preparedness of the military in the entire Pacific region, and argue that even if this Court finds a violation of the APA, an injunction should not be issued because the public interest in continuing these exercises outweighs any harm to the migratory birds.
Upon consideration of the parties motions, responses and replies thereto, the oral arguments of counsel at the hearing on March 13, 2002, and the applicable statutory and case law, the Court has determined that defendants have violated and continue to violate the MBTA and the APA by killing these birds without a permit. Therefore, plaintiffs' motion for summary judgment as to liability is GRANTED and defendants' motion for summary judgment is DENIED. Because the issue of the proper remedy to be imposed by this Court deserves further attention, the Court has set forth questions for the parties to brief at the conclusion of this opinion and has scheduled a hearing to discuss the proper remedy on April 30, 2002.

BACKGROUND

I. FDM and Migratory Birds
The island of FDM is located approximately 45 nautical miles northeast of Saipan in the Commonwealth of the Northern Marianas Islands. The island is approximately 1.7 miles long and 0.3 miles wide, with a total area of about 206 acres. FDM is composed of volcanic rock, and consists of hilly plateaus with dramatic cliffs dropping as much as 328 feet to the ocean on all sides. Although uninhabited by humans, FDM is home to many species of birds and animal life. The island is covered by diverse vegetation, that provides shelter, foraging, roosting, and nesting for several species of migratory birds. Surveys conducted in the 1980s and 1990s confirmed the presence of great frigatebirds (Fregata minor), masked boobies (Sula dactylata), brown boobies (Sula leucogater), red-footed boobies (Sula sula), sooty terns (Sterna fuscata), brown noddies (Anous stolidus), black noddies (Anous minutus), fairy terns (Gygis alba), cattle egrets (Bubulcus ibis), red-tailed tropicsbirds (Pheathon rubricauda), white-tailed tropicsbirds (Phaeton lepturus), Pacific golden plovers (Pluvialis fulva), whimbrels (Numenius phaeopus), bristle-thighed curlews (Numenius tahittiensis), and ruddy turnstones (Arenaria interpres). See Plf' Mem. in Supp. of Mot. for Summ. J., Ex. 2 ("Historical Overview of Farallon de Medinilla: 1543 to 1997," attached as an exhibit to the Volume Two of the U.S. Pacific Command, Final Environmental Impact Statement, "Military Training in the Marianas").
The number of birds of each species found on FDM ranges from a handful to the thousands, and varies throughout the year. Id. Most of the bird species use the island for breeding. Each breeding colony can serve the seabird population from tens of thousands of square miles of surrounding ocean. Id. In particular, FDM is one of only two great frigatebird breeding colonies in the Mariana island chain, and is the largest known nesting site for masked boobies in the Mariana and Caroline islands. Id. In addition, FDM is home to an endangered nonmigratory flightless bird, the Micronesian megapode.*fn1

II. Defendants Activities on and near FDM

The United States government has used FDM for military training exercises since 1971. Defendants contend that since the 1970's, FDM has represented an important and irreplaceable asset in maintaining the combat readiness of United States military units. See generally, Defs' Mem. in Supp. of Mot. for Summ. J., January 11, 2001, Dec. of Vice Admiral James W. Matzger ("Metzger Dec."), June 6, 2001 Dec. of Major General James E. Cartwright ("Cartwright Dec.").
In 1971, the United States and the then Government of the Trust Territory of the Pacific Islands signed a Use and Occupancy Agreement for the island of FDM, allowing the United States military to use FDM as a "aircraft and ship ordnance impact target area." Defs' Mem. in Supp. of Mot. for Summ. J. at 2-3. In 1975, the Government of the Trust Territory and the United States entered into a Covenant creating the Commonwealth of the Northern Mariana Islands (CNMI) as a commonwealth of the United States. See Pub.L. 94-241 § 1 (March 24, 1976). That Covenant included provisions related to the continued use of land by the United States for military purposes. In 1978, 1981, and finally in 1983 CNMI leased portions of its territory, including FDM, to the United States for fifty years to be used as an "aircraft and ship ordnance impact target area." Plfs' Achitoff Dec., Ex. 5.
An Environmental Impact Statement prepared by defendants and released in June 1999 describes the "ongoing" training exercises on FDM to include the following types of activities. Defendants conduct air-to-surface gunnery exercises, in which aircraft operating from aircraft carriers deliver 500-pound bombs and air-to-ground missiles to the surface of FDM. Aircraft fire machine guns, cannons, and missiles at the surface of FDM. According to the EIS, annual training consists of four 5-day Navy exercises, three 3-week Marine Corps exercises, and five 14-day combined force exercises. During the approximately 320 sorties flown each quarter, Air Force bombers drop 500, 750 and 2000 pound bombs, precision-guided munitions and mines on FDM. In addition, Navy ships fire 5-inch deck-mounted guns, using highly explosive, point-detonating rounds at the surface of FDM. These Navy activities may occur monthly during Pacific transits, with a ship remaining at FDM for approximately two days, and as part of joint exercises for approximately 12 days every two years. The Navy fires approximately 1,040 5-inch shells and 400 76mm shells annually. Finally, Navy SEALs use rigid hull inflatable boats to fire grenades, missiles, rifles, and machine guns at the surface of FDM approximately four times a year. See Achitoff Dec., Ex. 7 (June 1999 EIS).
According to defendants' own documents provided to plaintiffs via a Freedom of Information Act request, see Achitoff dec. at ¶ 9, in 1999, for example, strategic bombing exercises at FDM actually expended 538 live and inert bombs. Close air support exercises dropped 851 live and 512 inert bombs, along with 67 air-to-surface rockets and 7 air-to-surface missiles. Defendants' naval gunfire used 374 5-inch shells and small arms fire expended 6,069 rounds of 20mm ammunition. See Achitoff Dec., Ex. 8.
III. Harm to Birds on FDM
It is uncontested that defendants' military training activities on FDM will kill birds covered by the MBTA. "Defendants' live-fire training exercises occasionally kill migratory birds protected by the MBTA." Defs' Combined Statement of Material Facts, at ¶ 2. After a survey of FDM conducted in 1996, the FWS concluded:
There is no question that bombing of this island will result in the death of seabirds, migratory shorebirds, and possibly even the endangered Micronesian megapode. On several occasions we observed boobies nesting very close to unexploded ordinance [sic]. While the unexploded ordinance [sic] may not provide an immediate threat to the birds, it does indicate that bombs do fall in active nesting areas. Although there may be peaks in the seabird breeding season, our observation indicate that breeding probably occurs year-round.
Achitoff Dec., Ex. 10 (1996 Report prepared by FWS wildlife biologist Micheal Lusk, attached as Appedix D-5 to defendants' Final EIS, June 1999). In 1999 the Department of Defense came to the same conclusion:
The preferred alternative retains the use of FDM for naval gunfire and aerial bombardment. This training has potentially significant impacts that cannot be fully mitigated to levels of nonsignificance. The live-fire activities at FDM (Naval Range 7201) will cause bird mortality and habitat modification. Impact areas and target locations have been modifed to reduce impacts on known colonies and no incendiary ordnance is allowed. Despite these precautionary measures, however, it is anticipated that training may still have potentially significant impacts.
Achitoff Dec., Ex. 14 (1999 EIS at ES-25). Indeed, the FWS scientists have described defendants' activities as "likely the most destructive . . . military activity (ongoing and proposed) adversely impacting federal trust activities." Achitoff dec., Ex. 6 (Memorandum from K. Evans to other FWS staff dated April 15, 1997).

IV. Defendants' 1996 Permit Application

On April 15, 1996 the Navy applied to FWS for a permit pursuant to MBTA regulations that would allow them to incidentally "take" migratory birds on FDM as a result of the military exercises there. See Achitoff Dec., Ex. 15 (Letter from Ralph Kaneshiro, Acting Director of Environmental Planning Division of the U.S. Navy to Gene Hester, Division of Law Enforcement, FWS dated April 15, 1996). That permit application described defendants' activities, and requested a permit for the "incidential" take of migratory birds, including several specific species known to nest on and inhabit FDM. Id. The Navy described some mitigation measures they would enact, such as "limiting training sessions to seasons in which birds are not nesting (April through January), firing at designated targets located away from the concentration of nesting birds, and hazing the birds off the island prior to live firing." Id. The Navy explained that actual recovery of migratory birds is "not advisable" because the island is "considered contaminated with unexploded ordinance." Id. Without providing support for such an estimate, the Navy estimated that the annual take of migratory birds "will not exceed more than five individuals birds or eggs of each species listed above." Id. Finally, the Navy stated that "[t]he take involved is not desirable for the species involved. However, use of the area as a live fire range has the beneficial effect of reducing the negative impacts of human intrusion."*fn2 On the permit application form accompanying the Navy's letter, the Navy listed only one section of the regulations as justification for the application: 50 C.F.R. § 2141. 50 C.F.R. § 2141 [50 C.F.R. § 2141] authorizes permits only for depredation control, which clearly does not apply to defendants' military training activities.*fn3
On August 5, 1996 FWS denied the Navy's permit request. See Achitoff Dec., Ex. 17 (Letter from J. Bradley Bortner, Chief, Migratory Birds and Habitat Programs, FWS, to Daniel Moriarty, National Resources Management Specialist, Pacific Division, United States Navy, dated August 5, 1996). That letter stated, "[t]here are no provisions for the Service to issue permits authorizing UNINTENDED conduct on the part of a permittee." Id. (emphasis in original). Furthermore, "[b]ecause such conduct is unintended, it would not be possible for a permittee to ensure compliance with required limits and conditions of a permit; particularly in light of the proposed activity described in your correspondence." Id. The FWS also explained their concern with the biological impact of the Navy's activities:
Also, of concern is the biological information submitted with the application. Biologists familiar with the bird populations of the island for which the activity is requested have supplied us with the most current bird population information. Populations sizes are variable and can be limited to less than ten individuals of several of the species inhabiting the Island. In these cases, the proposed take of five birds could have significant impact on local nesting populations. Furthermore, current breeding data indicates that many of the species which populate the Island breed year round; therefore, conducting activities April through January would not ensure that birds are not nesting during that time period.

Id.

V. DOD's 1999 Environmental Impact Assessment, and Notice of Decision
On November 28, 1995, the United States Department of Defense (DOD) published a notice of intent to develop and Environmental Impact Statement (EIS) for the military's activities in the Mariana Islands as required by Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). Four years later, after numerous public meetings, and public comment periods on two draft EISs, DOD issued the Final EIS on June 11, 1999. See Achitoff Dec., Ex. 7, 14.
On August 18, 1999, DOD issued a Record of Decision for Military Training in the Marianas pursuant to that EIS. 64 Fed. Reg. 44904 (August 18, 1999). That Record of Decision announced DOD's decision to "continue to use suitable DOD controlled lands in the Mariana Islands to support various specific military training activities to ensure the readiness of U.S. forces tasked with fulfilling regional readiness and operational contingency missions." Id. That Record of Decision specifically addresses the use of FDM at issue here, and decides to continue that use despite the identified environmental impact. Id.

VI. Harm to Military of Halting Exercises on FDM

There is no dispute that live-fire target training is crucial to the readiness of United States armed forces. See Metzger Dec. at ΒΆ 2. According to defendants, FDM is crucial to the military's ability to conduct live-fire training in the Pacific. Id. FDM is the only air-to-ground target range under the control of the United States in the Western Pacific. Id. at 3. According to the Vice Admiral of the Navy in charge of the Seventh Fleet, James W. Metzger, "[c]onsisting of ideal hydrographic characteristics, geography, and a surrounding airspace unencumbered by heavily used commercial air corridors and ...

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