United States District Court, District of Columbia
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.
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.
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 sea-lanes,
[FDM] is uniquely well suited for live-fire training." Id. The
commanding officer of the 1st Marine Aircraft Wing (MAW), Major General
James Cartwright agrees:
the protected air and sea space surrounding [FDM]
provides sufficient room for the many different attack
profiles necessary to replicate combat conditions and
the simultaneous maneuver and colocation of all
supporting fires and unites require in our combat
training. As such it is integral to the combat
readiness of 1st MAW squadrons.
Cartwright Dec. at ¶ 2.
FDM is the "only target range in the Western Pacific, with no
alternative, for supporting large scale shore based excursions, such as
the Strike Fighter Advanced Readiness Program." Metzger Dec. at ¶
5. This training is mandatory for naval aviators, and FDM allows this
training to occur without leaving the Western Pacific. Vice Admiral
Metzger claims that "the importance of this fact can not be
over-estimated" because "access to [FDM] provides
monetary and manpower
cost-savings that cannot be recouped by any other means," and invaluably
allows the Navy to train without "degradation in force" Id. at ¶ 5.
FDM is also the only target range in the Pacific where "strike aircraft"
can use air-to-ground live-ordnance with "tactically realistic and
challenging targets in airspace which allows the use of high attitude
In addition to its importance to air wing readiness, FDM is also
important for Navy surface ship weapons handling and training. Id. at
¶ 9. According to Vice Admiral Metzger, [FDM] is the only U.S.
controlled target ranger in the Western Pacific Theater where Sailors and
Marines can participate in integrated naval gunfire training. It
addition to being the only U.S. site, it is also the most practical and
cost-efficient location." Id. at ¶ 9.
The Navy and U.S. Marine Corps team require realistic
training opportunities in order to master the tasks
inherent in actual naval combat. Naval guns are
unique weapons in that they are fired by the Navy but
directed, spotted, and adjusted by Marines forward
positioned ashore. Proficiency in Naval Surface Fire
Support cannot be attained without live-fire
exercises . . . The Farallon De Medinilla target range
located in Guam provides these crucial training
opportunities and is critical to the Navy maintaining
its dominant expertise in the SEVENTH fleet area of
Id. at ¶ 2-3.
Alternative sites for these types of training are located only in other
countries such as Korea and Japan. Id.; see also Cartwright Dec. at
¶ 6. The problem with relying on other countries for training sites
include problems with availability and increased logistical expenses.
Id. Major General Cartwright explains, "Other ranges in the [Western
Pacific] Theater provide portions of the capabilities found at [FDM] and
1st MAW unites routinely deploy to these sites. However, none of these
other ranges provides the target fidelity (the selection of discernible
targets) or provides regular access available as does [FDM.]" Cartwright
Dec. at ¶ 3.
In conclusion, Vice Admiral Metzger states, "I do not propose that the
loss of one target range will cause a complete collapse in readiness;
however, it will unquestionably make it all the more difficult to
maintain an acceptable level of readiness." Metzger Dec. at ¶ 8.
Major General Cartwright agrees that other target ranges will "continue
to be utilized to the maximum extent practicable," but FDM's "continued
accessibility as an air-to-surface ordnance training range must be
ensured." Cartwright Dec. at ¶ 8.
After the terrorist attacks of September 11, 2001, the importance and
use of FDM for military training has increased. See generally, Defs.'
Supp. Reply, Ex.C, December 10, 2001 Declaration of James E. Cartwright
("Supp. Cartwright Dec."), and Ex. D, December 11, 2001 Declaration of
James W. Metzger ("Supp. Metzger Dec."). Vice Admiral Metzger states,
"If we are prevented from training at [FDM], fleet readiness and national
security will be jeopardized to a greater extent, and inadequate training
will create an even higher risk to our personnel than was the case prior
to September 11, 2001." Supp. Metzger Dec. at ¶ 1. Major General
Cartwright agrees: "FDM's critical role in Marine aviation military
readiness, and therefore national security, has dramatically increased
since the September 11, 2001 terrorist attacks." Supp. Cartwright Dec.
at ¶ 1.
Since September 11, 2001, the Navy has "an increased number of units
required for combat operations on very short notice. With an increasing
surge of short notice deployments, [FDM] becomes a necessity
and readiness in the war against terrorism. We rely on FDM for
qualification and range practice for these short notice units." Supp.
Metzger Dec. at ¶ 2. Because FDM is the only U.S. controlled target
range in the Western Pacific its value is "significantly enhanced." Id.
Specifically, "[w]ithout [FDM], and with all other ranges in the Pacific
theater under foreign control, we would be at the mercy of host
governments for our readiness and training. Use of foreign ranges by
transiting unites is inefficient, and can inhibit mission readiness,
because of the time required for advance notice to and prior coordination
with host governments." Id. Therefore, "[c]losing [FDM] will therefore
mean that units transiting to the U.S. Seventh Fleet area of
responsibility may not have adequate range training time before they are
required to engage in combat operations in support of Operation Enduring
Major General Cartwright explains: "FDM usage has actually increased
since the September attacks." Cartwright Dec. at ¶ 3. FDM has
allowed units deployed in the Pacific to maintain combat readiness and
complete live-fire training: "The capability to execute a security
mission (protecting the lives of US citizens and property) while at the
same time conducting necessary training for future missions could not
occur if the live-fire range at FDM were closed." Id. at ¶ 3.
Furthermore, Major General Cartwright contends that increased security
risks throughout the world make the extra time and distance to
alternative firing ranges a problem. Id. Thus, "[g]iven the foreseeable
or potential military action in response to possible terrorist events, it
is essential that FDM be available for immediate and continuous use."
Id. at ¶ 2.
VIII. Procedural History of this Case.
Plaintiffs filed this lawsuit on December 21, 2000 alleging violations
of the MBTA and APA and requesting a permanent injunction preventing any
further use of FDM for military training exercises until defendants
obtain a valid permit. Defendants initially moved to transfer this case
to the United States District Court for the District of the Commonwealth
of the Northern Mariana Islands. After briefing by the parties, this
Court denied defendants' motion to transfer. The parties filed
cross-motions for summary judgment. Those motions were fully briefed as
of July 16, 2001.
In August of 2001, the Washington Legal Foundation (WLF) moved for
permission to file an amicus brief in support of defendants, and in its
proposed motion asserted a challenge to plaintiffs' standing that had not
been asserted by defendants. This Court denied that motion by Order of
November 21, 2001. On December 13, 2001, approximately five months after
these motions were fully briefed, and one year after this case was
filed, defendants filed a "Supplemental Reply" brief incorporating by
reference the WLF's standing arguments. Upon plaintiff's request, the
Court granted plaintiff leave to file a response to this new argument.
The Court heard oral argument on these motions on March 13, 2002.
I. Standard of Review
Summary judgment should be granted only if the moving party has shown
that there is no genuine issue of material fact and that the moving party
is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548 (1986); AKA v. Washington
Hosp. Ctr., 116 F.3d 876, 879 (D.C. Cir.), reh'g en banc granted,
124 F.3d 1302 (1997). Likewise, in ruling on cross-motions for summary
judgment, the court shall grant summary judgment only if one
moving parties is entitled to judgment as a matter of law upon material
facts that are not genuinely disputed. See Rhoads v. McFerran,
517 F.2d 66, 67 (2d Cir. 1975).
As described above, on December 13, 2001, after the pending motions
were fully briefed, defendants filed, without requesting leave from this
Court to do so, a supplemental reply brief challenging for the first time
plaintiffs' standing to bring this suit. Rather than construct their own
arguments, defendants incorporated by reference a proposed amicus brief
by WLF. WLF's request to file that brief had been denied by this Court
for the reasons set forth in an Order issued on November 21, 2001. This
Court would have been well within its discretion to deny defendants'
leave to file this surreply for violating the Local Rules of Civil
Procedure. However, this Court will consider this standing argument only
because it goes to the subject matter jurisdiction of this Court. See
Fed.R.Civ.P. 12(h) ("Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject matter, the
court shall dismiss the action.").
Contrary to defendants' arguments, plaintiff has satisfied the
requirements for standing. To satisfy the case or controversy
requirement of Article III of the Constitution, a plaintiff must show (1)
that it has suffered a concrete and particularized injury that is actual
or imminent not merely conjectural or hypothetical, (2) that the injury
is fairly traceable to the challenged action of the defendant, and (3)
that injury is fairly redressable by a decision of this Court. See,
e.g., Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167,
180-81 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). In
addition, an organization has standing to sue on behalf of its members
when its members would otherwise have standing to sue in their own
right, the interests at stake are germane to the organization's purpose,
and neither the claim asserted nor the relief requested requires the
participation of the individuals members in the lawsuit. Laidlaw, 528
U.S. at 181.
The declarations submitted by plaintiff of its Assistant Executive
Director, Bruce Eilerts, and one of its members, Ralph Frew, demonstrate
that CBD has standing to sue on behalf of its members. See Plfs' Mem. in
Supp. of Mot. for Summ. J., Declaration of Bruce Eilerts ("Eilerts
Dec."), and Declaration of Ralph Frew ("Frew Dec."). The interests at
stake in this litigation, the protection of migratory birds pursuant to
the MBTA, are germane to the purpose of plaintiff. See Eilerts Dec.
Furthermore, neither CBD's claim nor the requested relief require the
participation of any individual members of CBD.
Defendants argue that CBD has failed to demonstrate that any of its
members have suffered a concrete injury as a result of defendants'
actions. It is well settled that "the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a cognizable
interest for purposes of standing." Laidlaw, 528 U.S. at 562-63. The
declaration of Ralph Frew demonstrates that Mr. Frew's ability to observe
several types of migratory birds is being harmed by defendants' actions.
Mr. Frew explained that he lives most of the year on Guam, and travels on
"an irregular but frequent basis" to Saipan, Tinain, and Rota in the
Commonwealth of the Northern Mariana Islands, primarily to study birds.
Frew Dec. at ¶ 2. Mr. Frew, the former President of the Northern
Marianas Islands Audubon Society, seeks out and observes
the bird species
that nest on FDM. Id. at ¶ 3. In particular, Mr. Frew has recently
viewed white-tailed and red-tailed tropic birds, brown and red-footed
boobies, frigate birds, brown noddies, and fairy terns, all of which are
migratory birds found on FDM and that can "fly the relatively short
distances between the islands of the Marianas chain." Id. Mr. Frew is
not a new-comer to observing these birds, and has been participating in
the annual Christmas bird count for years, and intends to continue doing
so. Id. at ¶ 3.
Defendants argue that Mr. Frew's alleged injury is too speculative
because he does not visit the island of FDM himself but regularly travels
only to nearby islands to observe and study the types of birds that nest
on FDM. However, Mr. Frew's ability to observe these birds is undeniably
harmed by defendants' activities on FDM. It is true that Mr. Frew is
prevented from visiting FDM itself because that island is off-limits to
the public as a result of defendants' activities there. Furthermore,
visiting the island to view or count birds would be extremely dangerous
because FDM is riddled with unexploded ordnance. However, defendants'
killing of the migratory birds that are on FDM clearly impacts the
ability of Mr. Frew and others like him to observe these migratory birds
on the surrounding islands. Defendants do not dispute the fact that their
live-fire training kills birds. See Defs' Combined Statement of Material
Facts, at ¶ 2. While it is difficult to calculate the precise number
of birds that are being harmed by defendants' activities, it is clear
from the record that defendants are killing a significant number of these
birds on an ongoing basis. See Plfs' Mem. in Supp. of Mot. for Summ.
J., Declaration of Paul Atchitoff ("Atchitoff Dec."), Ex. 10, 12, 14,
15. The military's own Environment Impact Statement concluded that "This
training has potentially significant impacts that cannot be fully
mitigated to levels of nonsignificance. The live-fire activities at FDM
(Navy Range 7201) will cause bird mortality and habitat modification."
Achitoff dec., Ex. 14. The FWS' denied a permit to defendants for
precisely because of the potential "significant impact" of these killings
on the local bird population. Achitoff Dec., Ex. 17. Thus, Defendants'
attempts to characterize the impact of their activities on bird life as
"de minimus" are completely unsupported.
It is also undisputed that the birds being killed and harmed by
defendants' activities are migratory. By definition they do not stay on
FDM, but travel to the near by islands that Mr. Frew is permitted to
visit. Because these birds fly from island to island, if birds are
killed on FDM, the number of birds that Mr. Frew will be able to view at
any given time on the nearby islands will be diminished. This is
sufficient injury to support standing. Defendants' suggestion that
standing requires proof that "every migratory bird of every species on
FDM visits every other island in the 500 mile chain of the CNMI,
including the four islands Mr. Frew visited," is totally unsupported by
standing precedent. See Defs' Supp. Reply, Ex. A (WLF Amicus Brief) at
16.*fn4 The list of cases that support plaintiff's standing under these
circumstances is long. See, e.g., Laidlaw, 528 U.S. at 181 (injury
where plaintiffs lived 20 miles of affected area, where some
plaintiffs used areas within 40 miles of the affected area, and where some
plaintiffs were deterred from using area); Japan Whaling Ass'n v. American
Cetacean Society, 478 U.S. 221 (1986) (injury sufficient when the "whale
watching and studying of their members will be adversely affected by
continued whale harvesting" by Japan); Hill v. Norton, 275 F.3d 98 (D.C.
Cir. 2001) (reversing lower court but agreeing that plaintiff had
standing to sue under MBTA because a diminished presence of mute swans
near her property would reduce her aesthetic enjoyment). Plaintiff in
this case is not required to wait until Mr. Frew and others are
completely unable to view any members of the species of birds that
defendant is illegally killing before being granted access to this
Finally, the Court must note that defendants have adopted, along with
the rest of WLF's brief, the argument that plaintiffs have suffered
insufficient injury because the more birds that the defendants kill, the
more enjoyment Mr. Frew will get from seeing the ones that remain: "bird
watchers get more enjoyment spotting a rare bird than they do spotting a
common one." See Defs' Supp. Reply, Ex. A (WLF Amicus Brief) at 16-17.
Suffice it to say, there is absolutely no support in the law for the view
that environmentalists should get enjoyment out of the destruction of
natural resources because that destruction makes the remaining resources
more scarce and therefore valuable. The Court hopes that the federal
government will refrain from making or adopting such frivolous arguments
in the future.
Because plaintiff has demonstrated an actual and particularized injury
to its members' ability to view these species of migratory birds, that is
directly caused by defendants' unauthorized killing of these birds, and
is redressable by an injunction halting defendants' activities, the
requirements of Article III have been satisfied here.
III. Defendants Have Violated the MBTA and the APA's Prohibition of
Unlawful Agency Action
A. Defendants Actions Violate the MBTA
The MBTA was enacted in 1918 to implement a convention between the
United States and Great Britain (on behalf of Canada) for the protection
of migratory birds. It has since been amended to cover conventions with
Mexico, Japan, and the former Soviet Union. 16 U.S.C. § 703, 712.
The MBTA prohibits, among other things, any killing of designated
migratory birds. The language of the MBTA is unequivocal:
Unless and except as permitted by regulations made as
hereinafter provided in this subchapter, it shall be
unlawful at any time, by any means or in any manner,
to pursue, hunt, take, capture, kill, attempt to
take, capture, or kill . . . any migratory bird . . .
included in the terms of the [conventions between the
United States and Great Britain, Mexico, Japan, and
16 U.S.C. § 703. This prohibition applies with equal force to
federal agencies. Humane Society v. Glickman, 217 F.3d 882 (D.C. Cir.
Defendants do not dispute that several species of birds found on FDM
are protected by the MBTA. Nor do defendants deny that some of these
birds have been killed and will be killed as a result of defendants
activity. See Defs' Statement of Facts at 2 ("Defendants' live-fire
training exercises are likely to occasionally would or kill migratory
birds protected by the MBTA").
Thus, defendants activities are unlawful unless they are in some way
authorized by the regulations promulgated pursuant to the authority
granted in the MBTA. Defendants can find no such authorization in the
regulations. The MBTA authorizes the Secretary of the Interior to
promulgate regulations permitting the taking of migratory birds as long as
the regulations are consistent with the Convention. 16 U.S.C. § 704;
712(2). The regulations prohibit the taking, possessing, importation,
exportation, transportation, selling, or purchasing of any migratory
birds except as allowed by a valid permit. 50 C.F.R. § 21.11.
"Take" is further defined in the regulations to include "pursue, hunt,
shoot, wound, kill, capture, or collect," or attempt to do so.
50 C.F.R. § 10.12.
As discussed above, defendants applied to FWS for a permit allowing
them to take birds in connection with their activities on FDM and that
application was denied on August 5, 1996. Despite that permit denial,
defendants have continued to kill migratory birds. Because they continue
to kill these birds without complying with the statutory and regulatory
provisions for a permit, defendants are violating the MBTA.
Defendants emphasize repeatedly that their killing of these birds is
This description is misleading. Defendants' own
documents amply establish that defendants are knowingly engaged in
activities that have the direct consequence of killing and harming
See, e.g., Defs' Combined Statement of Material
Facts, at ¶ 2 ("Defendants' live-fire training exercises occasionally
kill migratory birds protected by the MBTA."); Achitoff Dec, Ex. 15 (1996
Navy permit application to FWS). Such knowing behavior is legally
sufficient to establish intent. See e.g., United States v. Salamanca,
990 F.2d 629, 636 n. 2 (D.C. Cir. 1993) ("it may be inferred that a
person intends the natural and probable consequences of his acts")
(quoting Allen v. United States, 420 F.2d 223, 225 n. 1 (D.C.Cir.
However, even if this Court accepts defendants' argument that these
killings are "unintentional," the MBTA prohibits both intentional and
unintentional killing. Courts have consistently refused to read a
scienter requirement into the MBTA. See, e.g., United States v. Corrow,
119 F.3d 796, 805 (1997) (holding that the MBTA is a "strict liability"
statute); United States v. Boynton, 63 F.3d 337, 343 (4th Cir. 1995);
United States v. Smith, 29 F.3d 270, 273 (7th Cir. 1994); United States
v. Engler, 806 F.2d 425, 431 (3d Cir. 1986); United States v. Manning,
787 F.2d 431, 435 n. 4
(8th Cir. 1986); United States v. Catlett,
747 F.2d 1102, 1105 (6th Cir. 1984); United States v. Wood, 437 F.2d 91
(9th Cir. 1971). Defendants admit that "the FWS, in conjunction with
DOJ, has prosecuted unintentional takes under the MBTA, and federal
courts have in some circumstances affirmed the MBTA's applicability to
unintended take in the pursuit of other lawful activities." Defs' Mem.
in Supp. of Mot. for Summ. J., at 15 (emphasis in original). As is clear
from the list of cases cited above, defendants description of the
precedent is something of an understatement — courts consistently
hold that the MBTA applies to both intentional and unintentional
behavior. Indeed, defendants admit that the FWS has prosecuted
individuals for unintentional violations of the MBTA. As will be
addressed below, whether or not FWS has chosen to exercise its
prosecutorial discretion to expend resources on prosecuting unintentional
takes in no way alters the legal question of whether such behavior
violates the MBTA.
B. Defendants Actions Violate the APA
The MBTA provides no private cause of action against the United States
government to enforce its provisions. However, plaintiff argues that
because defendants' actions violate the MBTA, they should be held liable
for violating the APA's prohibition on agency action that is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law." 5 U.S.C. § 706(2)(A). Once again, the law of this Circuit is
clear: a plaintiff may sue a federal agency under the APA for violations
of the MBTA. See Glickman, 217 F.3d 882 (holding that federal agency
action in violation of MBTA violates the "otherwise not in accordance
with law" provision of the APA); see also Hill v. Norton, 275 F.3d 98
(D.C. Cir. 2001) (holding that agency regulations that violate MBTA are
reviewable via the APA).
Despite the holding of Glickman, defendants argue that plaintiff's APA
claim must fail on two grounds: first, defendants argue that plaintiffs
have failed to challenge a final agency action, as required by
5 U.S.C. § 704; and second, defendants argues that prosecution of the
unintentional killing of migratory birds is a discretionary function
delegated to the FWS of which judicial review is improper under APA
5 U.S.C. § 701(a)(2). Neither of these defenses has merit.
1. Final Agency Action
The APA authorizes review only of "final agency action[s]."
5 U.S.C. § 704. This requirement is jurisdictional — that is,
for a court to have jurisdiction over a case brought pursuant to the
APA, the complaint must challenge a final agency action. Independent
Petroleum Ass'n of America v. Babbitt, 235 F.3d 588, 594 (D.C. Cir.
2001); DRG Funding Corp. v. Secretary of Housing & Urban Development,
76 F.3d 1212, 1214 (D.C. Cir. 1996) ("If the agency action is not final,
the court therefore cannot reach the merits of the dispute.").
The APA defines agency action to include "the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent or
denial thereof, or failure to act." 5 U.S.C. § 551(13). In
determining whether such action is final, courts should consider "whether
the agency's position is `definitive' and whether it has a `direct and
immediate . . . effect on the day-to-day business' of the parties."
Ciba-Geigy Corp. v. United States Envtl. Protection Agency, 801 F.2d 430,
436 (D.C. Cir. 1986) (quoting Federal Trade Comm'n v. Standard Oil Co. of
Cal., 449 U.S. 232, 239, 101 S.Ct. 488, (1980) (internal quotes
omitted)). As the Supreme Court explained in Bennett v. Spear, an agency
action is final if it "mark[s] the consummation of the agency's
decisionmaking process" and is "one by which rights or obligations have
been determined, or from which legal consequences will flow." Bennett
v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154 (1997) ((citations and
internal quotes omitted)).
Defendants argue that rather than identifying a particular agency
action, plaintiffs challenge the "general practices of the United States
in conducting military training exercises from time to time on FDM."
Defs' Mem. In Supp. of Mot. for Summ. J. at 19. This is inaccurate.
Plaintiffs are challenging the August 18, 1999 Record of Decision that
announces the specific decision to continue to use FDM for live fire
military exercises that was made in light of the EIS published by the
U.S. Pacific Command in June of 1999. See 64 Fed. Reg. 44904 (August
18, 1999). This Court has previously held that similar Records of
Decision issued pursuant to NEPA are final agency actions for purpose of
the APA. See Anacostia Watershed Soc. v. Babbitt, 871 F. Supp. 475, 480
(D.D.C. 1994) ("The Record of Decision and official Transfer of
Jurisdiction plan demonstrate that the Park Service's decision to
transfer jurisdiction to the District of Columbia was a final agency
At oral argument on March 13, 2001, Defendants argued that the August
18, 1999 Record of Decision was issued simply to comply with the
requirements of NEPA and made no decision with respect to the
continuation of the legally authorized military exercises on FDM. This
argument by counsel does not comport with the language of the Record of
Decision. The Record of Decision states "The Department of Defense (DoD)
through Commander, U.S. Naval Forces Marianas . . . pursuant to [NEPA and
its implementing regulations] hereby announces its decision to continue
to use suitable DoD controlled lands in the Mariana Islands to support
various specific military training activities . . ." Id. (emphasis
added). This Record of Decision "mark[s] the consummation of the
agency's decisionmaking process," with respect to whether to continue
those activities in light of the environmental consequences identified in
the EIS. Bennett, 520 U.S. at 178. This decision came from the highest
levels within the DOD and was in no way tentative or preliminary. This
Record of Decision marked the culmination of over four years of
investigating the environmental impact of these military activities
pursuant to the requirements of NEPA.
Furthermore, after analyzing several different options, this Record of
Decision committed the United States' armed forces to a plan for specific
uses of the Mariana Islands, an act "by which rights or obligations have
been determined, or from which legal consequences will flow." Bennett,
520 U.S. at 178. DOD recognized the environmental consequences of
continuing military exercises on FDM and made an official decision to
continue those actions despite those consequences. As a direct
consequence of the DOD's decision to continue using FDM as a live-fire
target range, protected migratory birds have been and are being killed in
violation of the MBTA.
Because plaintiff alleges that a specific decision, the August 18, 1999
Record of Decision, to conduct a specific activity, live-fire military
training on FDM, violates a specific statute, the MBTA, is unlawful
agency action, this case differs from those programmatic challenges that
courts have held fall outside the scope of a "final agency action" under
the APA. See, e.g., Lujan v. National Wildlife Federation, 497 U.S. 871
(1990) (rejecting a general challenge to the Bureau of Land Management's
land withdrawal program involving a number of different
types of administrative actions with respect to many different tracts of
land). In contrast to the D.C. Circuit's opinion in Independent Petroleum
Assoc. of America v. Babbitt, 235 F.3d 588, 594 (D.C. Cir. 2001), that
"[plaintiffs'] complaint not only does not challenge final agency
action, it is not at all clear what agency action [plaintiffs] purport
to challenge," it is very clear what agency decision plaintiff here
contests, the August 18, 1999 Record of Decision, and what consequences
with which plaintiffs are concerned, the military live-fire training
exercises that that Record of Decision authorized.
2. Prosecutorial Discretion
Defendants argue that plaintiffs can not sue them under the APA because
the prosecution of unintentional killings of migratory birds is a matter
properly left to the prosecutorial discretion of the FWS. This argument
is simply defendants' disagreement with the Glickman holding in sheep's
clothing. As discussed above, federal agencies can be subject to suits
for violations of the MBTA pursuant to the APA's prohibition on unlawful
action regardless of whether those violations are intentional or
unintentional. Whether the agency intentionally kills the birds or not,
it is violating the law. And because the APA provides a cause of action
to challenge unlawful agency actions, whether or not one federal agency
has violated a federal law is not an issue left to the prosecutorial
discretion of another federal agency.
Defendants argue that because FWS has in the past refrained from
prosecuting unintentional killings of migratory birds, this Court should
defer to the FWS's prosecutorial discretion. Defendants attempt to
invoke the provision of the APA that states that judicial review of
agency action is available "except to the extent that . . . agency action
is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
Even if it were true that the FWS has consistently exercised its
discretion to not prosecute or permit unintentional violations of the
MBTA,*fn8 plaintiff is not challenging any decision by the FWS. If
plaintiffs sued the FWS and claimed that they were required to prosecute
the Navy and DOD officials who are killing those birds, then perhaps
defendants' argument would apply. Plaintiffs have not sued the
prosecutors, they have sued the violators. Defendants' argument simply
does not apply. It is fundamental that "[i]t is emphatically the
province and duty of the judicial department to say what the law is."
Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60 (1803). Congress and the
President together passed the MBTA and made defendants' activity a
crime, and together have given the citizens of this country the right to
sue their federal government civilly when it violates the law. That is
the beginning and end of this Court's inquiry.
Finally, if FWS exercises its discretion and generally does not
prosecute "unintentional" violations of the MBTA, when such activity
clearly violates the law, this is even more reason for plaintiff to
proceed with its action here. FWS is on record in this case stating that
they will not prosecute defendants' activities on FDM. See Defs' Mem. in
Supp. of Mot. for Summ. J., Ex. C, D. Without plaintiff acting as a
"private attorney general," no one would prevent these violations from
For the foregoing reasons, defendants' decision to continue the
military training exercises on FDM, as reflected in defendants'
1999 Record of Decision, violates the MBTA and the APA. It is hereby
ORDERED that plaintiff's motion for summary judgment is GRANTED with
respect to liability; it is
FURTHER ORDERED that defendants' motion for summary judgment is DENIED
with respect to liability; it is
FURTHER ORDERED that the parties are to brief the following questions
with respect to remedy that were read by this Court into the record at
the March 13, 2002 hearing:
1. Defendants' activities are clearly violating the
MBTA and the APA. Why should this Court not enforce
the law as it is written and issue an injunction
halting these activities.
2. The Tennessee Valley Authority and Weinberger
cases are from 1978 and 1982 — are there any
more recent cases discussing the conflict between
environmental laws and military interests with
respect to issuing an injunction?
3. In the context of military interests or any other
interests, are there any cases that discuss whether
injunctions must issue for violations of the MBTA?
4. Are there cases that discuss whether injunctions
must issue for violations of the "otherwise in not
in accordance with law" provision of the APA?
5. Weinberger stands for the proposition that in
deciding the scope of a federal court's equitable
jurisdiction with respect to violations of federal
statutes, the Court can not conclude that an
injunction must issue solely based on the fact of
the statutory violation itself. Rather, the Court
must inquire into the purpose and language of the
statute in order to assess whether Congress has
clearly limited the court's discretion. Thus, this
Court must look to the statutory language and
purpose at issue here. Should the Court look to the
MBTA or the APA to make that determination?
6. Has § 706 of the APA removed this Court's
discretion to refuse to issue an injunction
setting aside agency action? Why or why not.
7. Are defendants' activities eligible for a permit
from FWS for these activities under any
interpretation of the current regulations? Which
regulations and how.
8. If none of the current regulations would allow a
permit in this situation, does the administration
have statutory authority to amend those
regulations to cover this situation — or is
the statutory grant of authority limited so as to
exclude military needs?
9. Has Congress ever considered or is Congress
currently considering a military/national security
exception to the MBTA? Has such an amendment ever
been proposed, voted on, or passed?
10. Are there any of the challenged military exercises
that wouldn't harm or kill the birds? Is there any
way for defendants to mitigate the damage short of
halting all activity?
11. If this Court enjoins defendants' training exercises
on FDM, what will happen the next day? Where else
would the military go to train?
12. What efforts are currently being made by the
Administration with respect to Congressional action
related to this case or the application of the MBTA
13. Why did the Navy cite 50 C.F.R. § 21.41 on its
1996 permit application form?
It is FURTHER ORDERED that with respect to any differences between the
transcript of the March 13, 2002 hearing and this Order, the questions as
written in this Order control; it is
FURTHER ORDERED that plaintiff's brief addressing the above issues
shall be filed no later than March 27, 2002; it is
FURTHER ORDERED that defendants' brief responding to plaintiff and
addressing the above issues shall be filed no later than April 10, 2002;
FURTHER ORDERED that plaintiff's reply shall be filed no later than
April 17, 2002; it is
FURTHER ORDERED that in addition to filing their briefs with the Clerk
of the Court the parties shall e-mail an electronic courtesy copy of
their briefs to the following e-mail address:
email@example.com.; it is
FURTHER ORDERED that a hearing will be held to discuss the proper
remedy in this case on April 30, 2002 at 1 p.m. in Courtroom Nine.
IT IS SO ORDERED.