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CENTER FOR BIOLOGICAL DIVERSITY v. PIRIE
March 13, 2002
CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
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.
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.
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
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.
According an August 18, 1999 Record of Decision for Military Training
in the Marianas, defendants propose to continue the status quo, with some
modifications of target
placement. See Achitoff Dec., Ex. 9 (Record of
Decision). The supplemental declarations recently filed by defendants'
indicate that since the September 11, 2001 terrorist attacks on the
United States and the initiation of military exercises in Afghanistan,
the use of FDM has "actually increased." See Defs' Supp. Reply, Ex. C
(December 10, 2001 Dec. of Major General James E. Cartwright, at ¶
3). According to Major General Cartwright, "FDM's critical role in
Marine aviation military readiness, and therefore national security, has
dramatically increased since the September 11, 2001 terrorist attacks,"
and that it is "essential that FDM be available for immediate and
continuous use." Id. at ¶ 2.
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
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.
The 1996 permit request was not the first such request filed by the
Navy. See Achitoff Dec., Ex. 17 (Bortner Letter of August 5, 1996) ("The
Service has denied similar requests by the Navy in the Pacific Islands in
the past."). It is uncontested that neither defendant has applied for or
received a permit since. However, after the initiation of this lawsuit,
and explicitly in response to the allegations in this lawsuit, the FWS
informed both defendants in
this case that it believed that defendants'
actions are "consistent with the responsibilities of the United States
under the migratory bird treaties on which the MBTA is based." See Defs'
Mem. in Supp. of Summ. J., Ex. C (Letter from Acting Director of FWS to
Donald H. Rumsfeld, Secretary of Defense dated June 12, 2001) and D
(Letter from Acting Director of FWS to Gordon R. England, Secretary of
the Navy dated June 12, 2001). The FWS then stated that it has long
employed "enforcement discretion" for activities that may be prosecuted
pursuant to the MBTA but are not covered by the MBTA permitting
regulations, that in this case it would "exercise its discretion not to
take enforcement action" against the Navy and DOD. 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 ¶ 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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