MILITARY READINESS AND ENVIRONMENTAL SECURITY-CAN THEY CO-EXIST?

Real Property, Probate and Trust Journal, Summer 2004 by Vogel, Catherine M

Editors' Synopsis: This Article reviews the effects of the Migratory Bird Treaty Act, the Endangered Species Act, and the Sikes Act on issues of encroachment and military readiness training. The Department of Defense land holdings provide habitats for a disproportionate number of endangered species in addition to providing military training environments. The military is often forced to alter or delay its training procedures to protect the animals and their habitats. The Department of Defense has proposed legislation to reduce the pressures of regulatory compliance on military training activities in the protected habitats. The author concludes that this type of legislation should be delayed until the Department of Defense can gather conclusive data about the effects of the Acts, and she proposes alternative solutions for the Department of Defense to consider in order to balance the protection of the habitats with the importance of military readiness. This Article was the winning submission for the 2003 Jacques T. Schlenger Writing Contest, sponsored by the American Bar Association's Real Property, Probate, and Trust Law Section.

I. INTRODUCTION

The Department of Defense ("DOD") is responsible for the management of more than twenty-five million acres of state and federal land within the United States.1 Although the DOD's land holdings only comprise about three percent of the total federal land inventory,2 surprisingly, "Acre for acre, military lands are three times as likely to contain habitat for [endangered] species than any other federal land."3 A 1996 report illustrated the disproportionate number of federally listed species found on DOD land,4 showing that more than 220 federally listed species were reported as residents on, or migrants through DOD land.5 The presence of approximately 1OO of these species was confirmed by the Natural Heritage Data Network.6 A more recent report indicated that military land provides habitat for approximately 300 threatened or endangered species.7

Several reasons have been offered to explain the uneven distribution of endangered species across federal land. The DOD's land holdings are widely distributed across the country and include ecosystems that are underrepresented or unrepresented in the land holdings managed by other federal agencies.8 Additionally, DOD properties often are located in areas with no other significant federal land holdings.9 Therefore, the increased biological diversity is, in part, a reflection of the geographic location of the DOD facilities within the United States.10 More significantly, the uncontrolled development of open areas surrounding formerly remote military training areas has forced species to migrate to the last remaining open spaces, which frequently are the adjacent military facilities.11

Pressure from encroachment,12 more commonly known as urban sprawl, has produced "islands of biodiversity" in and around DOD facilities.13 In some instances, military facilities provide the last open area standing in the face of approaching sprawl, including, for example, Camp Pendleton's 150,000 acres, which are preventing the cities of San Diego and Los Angeles from merging into one expansive megalopolis.14 These facilities may be providing "the last remaining habitat for some endangered or threatened species which have been lost from nearby public or private lands."15

Encroachment is transforming military facilities into de facto refuges for endangered or threatened species.16 Increasingly, facility managers find themselves in the position of needing to comply with numerous federal environmental and natural resource laws that grant protection to these species.17 The key statutes involving species or habitat protection that affect military training facilities are the Endangered Species Act ("ESA"), the Marine Mammal Protection Act ("MMPA"),18 and the Migratory Bird Treaty Act ("MBTA").19

To comply with the statutory and regulatory requirements, the DOD develops "work-arounds"-plans that modify and sometimes restrict aspects of its training exercises.20 Examples of work-arounds include limiting Marine training in the Mojave Desert in California to the daytime and restricting live and simulated fire operations.21 On Coronado Island, off the coast of California, the presence of endangered bird species significantly restricts Navy SEAL (Sea, Air, Land) training.22 According to congressional testimony, "When Navy SEALs land on the beaches . . . during nesting season, they have to disrupt their tactical formations to move in narrow lanes, marked by green tape, to avoid disturbing potential nests of the Western snowy plover and California least tern."23 On San Clemente Island, also off the coast of California, the bombing ranges must be shut down several days per week during the breeding season of the protected loggerhead shrike. Although work-arounds are developed and implemented to allow training to continue, the Deputy Under secretaries of Defense argue that they degrade the quality of training by preventing troops from training "in the context of a realistic, integrated combat scenario" and thereby compromise the country's military readiness.25