It's not easy being green: are DoD INRMPS a defensible substitute for critical habitat designation?
I. INTRODUCTION II. BACKGROUND A. Endangered Species on DoD Lands B. The Endangered Species Act and DoD Applicability C. The Sikes Act III. CRITICAL HABITAT A. Designation of Critical Habitat by FWS B. Center for Biological Diversity v. Norton C. Range Readiness Preservation Initiative D. Response from Environmental Organizations IV. INRMP vs. CRITICAL HABITAT DESIGNATION A. DoD Position that INRMP is Superior B. FWS Position that Critical Habitat Process is Broken V. PROCEDURAL RECOMMENDATIONS A. Definition of "Benefit to the Species". B. Public Input when Developing INRMPs C. Unfunded INRMPs VI. SUBSTANTIVE RECOMMENDATIONS A. Reasonable and Prudent Measures from Individual Biological Opinions B. Recovery Plans C. Section 7(a)(1) Conservation Planning D. Mitigation and Monitoring Requirements from NEPA Process E. Federal Land Policy Management Act and National Forest Management Act Resource Management Plans F. Comprehensive Wildlife Conservation Strategies G. Adjacent Private Lands 1. Habitat Conservation Plans 2. Safe Harbor Agreements 3. Candidate Conservation Agreements 4. Candidate Conservation Agreements with Assurances H. Memorandum of Agreement as Required by Migratory Bird Treaty Act Executive Order VII. CONCLUSION: A GOOD INRMP IS A GOOD SUBSTITUTE FOR CRITICAL HABITAT DESIGNATION
The Department of Defense (DoD) is responsible for managing approximately 25 million acres of land on more than 425 military installations in the United States. (1) The DoD is the third largest federal land manager, behind the Departments of Interior and Agriculture. (2) On these lands, there are more than 300 species listed as threatened or endangered. (3)
Conservation is an idea which has long been a part of our nation's history. In 1832, as George Catlin arrived in present-day South Dakota, he wrote in his journal about "a nation's Park" which would preserve both the buffalo and the Indians who inhabited the plains. (4) The first application of the park concept was seen in 1864 when the United States granted Yosemite Valley to California to manage it for preservation. (5) In 1872, Congress created the first national park. (6) By the legislation, they "dedicated and set apart as a public park or pleasuring ground for the benefit and enjoyment of the people" Yellowstone National Park. (7) As the nation's principal conservation agency, the Department of Interior has as a primary mission the conservation and protection of natural resources, to include endangered species. (8) Similarly, the Forest Service, as the primary land manager within the Department of Agriculture, has an environmental mission that can logically be extended to include protection of endangered species. (9)
But, unlike the Department of the Interior and the Department of Agriculture, the DoD's primary mission is to train and equip combat forces, not to function as a federal land manager. (10) The conservation ideal, however, has occasionally been included in the congressional guidance for the management of the DoD. For example, in 1992, Congress established the Legacy Program, which provided the military with additional funding for conservation efforts. (11) It set aside $ 10,000,000 of the Legacy funds for use only in implementing cooperative agreements to identify, document, and maintain biological diversity on military installations. (12) Unfortunately, conservation related to endangered species has become a significant threat to the DoD's ability to train military personnel and test weapons and equipment.
To aid in the recovery of threatened and endangered species, the Department of the Interior is required to designate critical habitat. (13) Once designated, this habitat receives special protection, and cannot be freely used for purposes that may harm the species and slow its recovery. (14) Designation of critical habitat on DoD lands can significantly increase restrictions on military training by making the designated land unusable for military training. (15) If resources are not managed wisely, the DoD's responsibility to protect and preserve endangered species and their habitats will diminish the DoD's ability to accomplish its primary mission. Environmental restrictions on the services' ability to train personnel and test weapons and other equipment are often referred to as "encroachment." (16) In addition to endangered species-related land-use restrictions, other types of encroachment that impact training and testing activities are urban growth, incompatible development near military bases, and restrictions imposed by other environmental legislation, including the Clean Air Act and the Marine Mammal Protection Act. (17)
DoD efforts to deal with encroachment have taken many forms in recent years. Some of these efforts have been used by all services and others have been more applicable to a single service. One extreme method of dealing with encroachment has been base closure. (18) More often, however, the efforts involve some type of land use planning. An early tool used by the Air Force to fight encroachment was the "Greenbelt" concept. (19) Initiated in 1970, Greenbelt sought to purchase property around airfields to create a buffer zone. (20) Unfortunately, the program proved too costly. (21) The DoD also uses its own tools, such as the Air Use Installation Compatible Use Zone (AICUZ), which is used by all military services. (22) The purpose of AICUZ is to achieve compatible use of public and private lands in the vicinity of military airfields. (23) In 1995, in Fort Bragg, North Carolina, The Nature Conservancy and the Army Environmental Center signed a cooperative agreement that enabled the agencies to use "cost-sharing" to protect land in the vicinity of Fort Bragg. (24) The lands selected for protection were critical to the survival of the federally endangered red-cockaded woodpecker. (25)
Since September 11, 2001, the DoD has sought certain modifications to environmental laws under its Readiness and Range Preservation Initiative. (26) This initiative was designed to enable the DoD to meet its primary mission, while remaining a responsible steward of the natural resources on its lands. (27) One piece of new legislation authorized the DoD to cooperate more effectively with third parties on land transfers for conservation purposes. (28) In 2003, the DoD obtained a modification allowing military installations to supplant critical habitat designation for listed species through the use of an Integrated Natural Resource Management Plan (1NRMP) that provides a conservation benefit to the species. (29) This article will look at endangered species on DoD land, INRMPs, and critical habitat designation. This article makes recommendations for the military departments within the DoD to follow in preparing and revising INRMPs in the future. The recommendations fall into two categories: (1) procedures to follow in preparing INRMPs, and; (2) recommendations for broadening the scope of INRMPs. This article concludes that the INRMP is an acceptable substitute for critical habitat designation, as long as it is thoroughly prepared and funded adequately. As ecosystem-based management tools, INRMPs that encompass a wide variety of natural resources concerns can be a great asset to the DoD.
A. Endangered Species on DoD Lands
DoD land holdings are generally large tracts, which often have a disproportionate natural resources value because higher concentrations of endangered species inhabit them. (30) DoD lands are distributed throughout the country and include ecosystems that are underrepresented or unrepresented in other federal agencies' land holdings. (31) Often, DoD lands are isolated from other federal land holdings. (32) This remote geographic location often adds to its natural resources value. Additionally, development around military installations has driven many species to seek refuge on the installations. (33) Due to access restrictions designed to ensure public safety and security of military assets, the land often offers more natural conditions as habitat for the species than lands managed by other federal agencies. (34) Military lands also may contain the invaluable habitat for some species that have been endangered or threatened due to loss of nearby public or private lands. (35) In some cases, military bases have become de facto refuges for threatened and endangered species that are either fleeing urban sprawl outside the base, or remaining within their historic habitat that has been preserved on the base. (36)
B. The Endangered Species Act and DoD Applicability
The Endangered Species Act (ESA) is designed to prevent the extinction of species of plants and animals by protecting species listed as "endangered" (in danger of extinction) or "threatened" (likely to become endangered in the foreseeable future). (37) It also attempts to "recover" species so that the species no longer needs protection from the ESA. (38)
The ESA prohibits any person from "taking" any species of fish or wildlife on the endangered or threatened lists. (39) The definition of "person" includes "any officer, employee, agent, department, or instrumentality of the Federal Government." (40) "Federal agency" is defined as "any department, agency, or instrumentality of the United States." (41) As a "person" and as a federal agency, the DoD must meet several requirements under the ESA. The prohibition against "taking" is very broad. "Take" is defined to include harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting, or attempting any of these things. (42) "Harm" is also broadly defined. By regulation, it is defined to include destruction of habitat that kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering. (43) These broad definitions constrain the DoD's conduct when listed species of plants and animals, or their habitat, are present.
The DoD must not approve, fund, or carry out actions that might jeopardize the continued existence of any endangered or listed species, or might result in the destruction or adverse modification of habitat designated as critical to an endangered or listed species. (44) To meet this requirement, the DoD must consult with the Fish and Wildlife Service (FWS) or the National Marines Fisheries Service (NMFS), prior to taking any action that may adversely affect any endangered or listed species. (45)
Further, the DoD must insure that it utilizes its authority "in furtherance of the purposes of" the ESA. (46) One of these purposes is to "conserve" species, meaning that the species be restored to the point where it no longer needs ESA protection. (47) Thus, the DoD is required to use its authority and resources as a federal agency to conserve endangered species. This can preclude the DoD from undertaking an action which incidentally results in or causes the taking of a species, or causes damage or substantial modification to a species' habitat on the installation.
But, the ESA does not totally prohibit activities in which the DoD might be involved in a "taking" of an endangered species. The consultation process mentioned above allows for the taking of a limited number of members of a listed species if the FWS concludes that the DoD action poses "no jeopardy" to the continued existence of the species. (48) The FWS may also require the DoD to adopt reasonable and prudent alternatives to the original proposed action, in order to reduce the impact to the endangered species. (49)
If the DoD and the FWS cannot resolve between themselves whether or not an exemption should be granted for a proposed DoD action, there is an exemption process. (50) The Endangered Species Committee may be convened to consider a possible exemption from the ESA for a particular DoD action. (51) An exemption cannot be granted if the Secretary of State certifies that the exemption would violate a treaty or other international obligation. (52) But, notwithstanding any other provision of the ESA, the exemption must be granted if the Secretary of Defense finds the exemption is necessary for national security reasons. (53)
When a species is listed as endangered or threatened, the Secretary of the Interior must concurrently designate "critical habitat" that is necessary for the recovery of the species. (54) The critical habitat designation is designed to assist the species by ensuring that the species has a suitable environment in which to recover. An area may be excluded from critical habitat designation if the Secretary determines that the benefit of the exclusion outweighs the benefit of designating the area as critical habitat. (55) The requirement to designate critical habitat has been the subject of much controversy. The manner in which critical habitat has been dealt with on DoD installations will be discussed at length below.
C. The Sikes Act
Predating the ESA, which was passed in 1973, the Sikes Act has long been the primary authority under which the DoD manages the natural resources on its installations. (56) Initially adopted in 1960, the Sikes Act provided for cooperation among the Secretaries of Defense and Interior, along with State agencies, to plan, develop and maintain fish and wildlife resources on military reservations in the United States. (57) In 1986, the Sikes Act was amended, requiring more comprehensive management of fish and wildlife resources on DoD lands. (58) It required the DoD to manage the fish and wildlife resources on its lands using trained professionals, and required that fish and wildlife agencies be given priority in management of fish and wildlife activities on military reservations (59)
The Sikes Act was further amended and significantly changed in 1997. (60) The 1997 Amendments replaced discretionary authority to manage natural resources with a mandatory requirement that each DoD installation prepare an INRMP, (61) and that the FWS concurrence in the INRMP be obtained. (62) The Act now requires the DoD installations to carry out a resource management program that will conserve and rehabilitate natural resources on the installation, sustain multipurpose use of the resources on the installation (including hunting, fishing, trapping, and nonconsumptive use), and allow public access to the resources, subject to safety and military security requirements. (63)
The required scope of the INRMP is far more comprehensive than provided for in the original Sikes Act. INRMPs are required to address: fish and wildlife management; land management; forest management; fish and wildlife oriented recreation; enhancement of fish and wildlife habitat; and restoration and enhancement of wetlands. (64) INRMPs must establish specific natural resources goals and objectives, with time frames for proposed action. (65) They must also allow for sustainable use by the public of natural resources, not inconsistent with the needs of fish and wildlife resources. (66) In addition, INRMPs must provide for enforcement of natural resources laws. (67) All of these requirements must be satisfied while incurring no net loss in the installation's ability to support its military mission. (68) INRMPs were to be prepared for all military installations with significant natural resources by November 18, 2001, unless there was already a satisfactory plan in place. (69) The DoD was required to prepare and coordinate more than 373 INRMPs, most of which were completed by the deadline. (70) To meet the Sikes Act's standards, INRMPs must be reviewed every five years. (71) DoD policy, however, requires an annual review. (72)
III. CRITICAL HABITAT
A. Designation of Critical Habitat by FWS
Despite the ESA's requirement to designate critical habitat (73) concurrently with listing a species as endangered, the FWS has not always done so. The FWS has taken the position that the present system for designating critical habitat is counterproductive to restoring endangered species. (74) According to the FWS, the current system yields little conservation benefit compared to the huge "social and economic costs." (75) The ESA, however, contains a citizen suit provision whereby citizens can sue the FWS to enforce provisions of the Act. (76) As a result of several lawsuits, the FWS has been ordered to designate critical habitat for listed species. (77)
Once designated, critical habitat must be managed in a very protective manner. As stated above, a federal agency action that does not jeopardize the continued existence of a listed species is allowed to proceed with a proposed action, following consultation with the FWS. (78) But, the standard for protecting critical habitat is higher than "not jeopardizing" the species. (79) Critical habitat may be designated in locations where the species in question does not live. (80) It may encompass broad areas of land where the species may live in the future. (81) And, critical habitat must be managed to restore the species to the point it is no longer endangered, not merely prevent the species from being in jeopardy. (82) This higher management standard places greater restrictions on what can be done on lands designated as critical habitat. Considering the number of endangered species on DoD lands, and DoD's need to use its lands for military readiness training, the two uses of the land are bound to conflict.
B. Center for Biological Diversity v. Norton
As previously discussed, the FWS has not always designated critical habitat, as prescribed by the ESA. (83) On the DoD lands, the FWS has often relied on a provision in its own regulations that excluded land from critical habitat if the land was already under a special management plan, such as an INRMP. (84) This approach ended in a 2003 court decision, Center for Biological Diversity v. Norton. (85) The Southwest Center for Biological Diversity sued the FWS challenging its interpretation of the ESA that allowed it to exclude from critical habitat areas that are covered by "adequate management or protections already exist[ing] on those lands." (86) The FWS had excluded Forest Service lands from critical habitat designation, based on the lands being managed under a land and resource management plan (LRMP) developed by the Forest Service. (87) The U.S. District Court in Arizona held that land managed under an LRMP, which is similar to a DoD INRMP, should not be excluded from critical habitat designation. (88) The court said that the fact that lands require special management necessitates their inclusion as critical habitat, not their exclusion from it. (89) According to the court, the FWS's interpretation of the ESA was equivalent to inserting the word "additional" into the statute between the words "require" and "management," and this type of definitional change could only be made by Congress. (90) Because of the similarity of Forest Service LRMPs and DoD INRMPs, the decision had a major impact on designation of DoD land as critical habitat. Following Norton, the FWS could no longer use INRMPs to justify not designating critical habitat on DoD lands.
C. Range Readiness Preservation Initiative
In response to the tension between military readiness training and protecting natural resources, the DoD sought assistance from Congress. The Readiness and Range Preservation Initiative (RRPI) was a legislative proposal designed to help the DoD meet its primary mission of training and equipping for combat, while remaining a responsible steward of natural resources. (91) A prime example of the type of situations precipitating the change was the endangered species at the Barry M. Goldwater Range, near Luke Air Force Base, Arizona. (92)
As an airspace and land range, the Goldwater Range supports both air-to-air and air-to-ground tactical aviation for the Marine Corps and the Air Force. (93) A series of laws and executive orders dating from 1941-1943 withdrew over 2.1 millions acres of the range from public lands for use as an aviation training area. (94) Since that time, range management has restricted surface impacts to targets scattered over the tactical and manned ranges. (95) By keeping those targets in the same locations for decades, range officials have allowed most of the surrounding land to function purely as a safety buffer. (96) It is this management and the exclusion of most other land uses that has led to the Goldwater Range's recognition as a rich island of biodiversity. (97) While the bulk of encroachment pressures around Luke Air Force Base come from urban growth and incompatible development, the threats to the range are land management restrictions required for compliance with environmental laws. As a wildlife resource, the Barry M. Goldwater Range is significant as the primary U.S. habitat of the endangered Sonoran pronghorn antelope, a significant habitat for desert bighorn sheep, and a relatively well-protected expanse of Sonoran Desert in which natural ecological processes are predominant. (98) The preservation of pristine habitat has resulted in an additional burden for the military as range operations are now hampered by many restrictions designed to protect endangered species. (99) General Donald G. Cook, Commander of Air Education and Training, summarized the specific impacts on the Goldwater Range in his statement before the Subcommittee on Military Readiness of the House Armed Services Committee on March 8, 2002:
Here, the courts could issue an injunction to halt range operations if concerns from environmental groups are not satisfied. In fact, one environmental group has filed three lawsuits over the past six years over a subspecies of Pronghorn antelope. These lawsuits and a Biological Opinion concerning the antelope have forced the Air Force to restrict the employment of training or live ordnance in the proximity of any Pronghorn sighting. To fulfill this requirement, four biologists had to be hired at great expense as spotters for each day's range activities. If Pronghorn are seen, portions of ranges are closed. In the past three years, more than 30% of the scheduled live drop missions were either cancelled or moved to alternate target areas. Explosive Ordnance Team clean up of expended munitions in target areas are similarly restricted. Thus, already limited air space is further constrained and impedes Air Force training objectives. (100)
Recognizing that military readiness was in tension with the designation of critical habitat, Congress modified the ESA in the National Defense Authorization Act of 2004. A portion of the ESA, 16 U.S.C. [section] 1533(a)(3), was changed to state that critical habitat shall not be designated on DoD lands that are subject to an INRMP, if the Secretary of the Interior determines in writing that the INRMP provides a "benefit to the species" for which critical habitat is proposed for designation. (101) Another section, 16 U.S.C. [section] 1533(b)(2), was also changed to include "the impact on national security" as an additional specific factor to be considered by the FWS when conducting the balancing test to determine whether critical habitat should be designated. (102)
D. Response from Environmental Organizations
Before the changes to the INRMP provisions were approved, environmental groups voiced their disapproval of the proposed changes. A main objection is that, in their view, INRMPs do not adequately protect the resources they cover. (103) As evidence, they cite multiple instances of the FWS declaring particular INRMPs inadequate. (104) Another of their concerns is a finding by the DoD Inspector General that there is no documented evidence of implementation of INRMPs. (105) The environmental community wants to be sure that progress is made and monitored regarding the recovery of the species and the habitat management. The Center for Biological Diversity, the plaintiff in the case that invalidated the FWS interpretation of the ESA, claimed that changing the ESA in this way would be like "issu[ing] a blank check to the DoD, allowing the Pentagon to substitute its own Integrated Natural Resource Management Plans which are often never funded or implemented for the designation of critical habitat to ensure the survival of endangered species on military lands." (106)
Environmental organizations have other concerns, as well. They are concerned that the decision to forego critical habitat designation in favor of an INRMP is a one-time decision. (107) Once the FWS has declared the INRMP to be valid, the FWS is out of the picture and unavailable to take enforcement action, should it be needed. (108) There are no provisions for adaptive management techniques that require the INRMP be evaluated for results and adjusted accordingly. (109) In their view, because the DoD has the obligation under the ESA to use its resources to preserve endangered species and their habitats, the authority granted to the DoD by the FY 2004 National Defense Authorization Act (NDAA) should be used wisely, and should address the concerns raised by environmental organizations. (110)
On April 13, 2004, the FWS excluded Vandenberg Air Force Base from critical habitat designation pursuant to the Endangered Species Act for the threatened California red-legged frog. (111) In doing so, the FWS cited Vandenberg's 1997 INRMP as already providing the necessary conservation benefit to the species, thereby negating the need to designate critical habitat. (112) The FWS noted that INRMP "does provide conservation measures for the California red-legged frog, as well as for the management of important wetland habitats across the base." (113) These measures included monitoring, periodic surveys of species status, and implementation of conservation measures recommended by the FWS during active consultation by the Air Force with the FWS. (114)
IV. INRMP vs. CRITICAL HABITAT DESIGNATION
A. DoD Position that INRMP is Superior
The DoD has argued that INRMPs are better environmental management tools than critical habitat designation. Prior to the FY 2004 NDAA, which prohibited critical habitat designation on DoD INRMP-managed lands, the DoD made clear its position that INRMPs are superior. (115) The DoD believed that critical habitat designations on military installations are duplicative because INRMPs already provided the "special management considerations or protection" needed to aid in survival and recovery of threatened and endangered species. (116) The DoD also stated that critical habitat designations, layered on top of INRMPs, unnecessarily limited a military commander's ability to meet the dual objectives of military readiness and natural resource protection. (117)
The DoD advanced several theories to support its request that lands on a military installation be excluded from a critical habitat designation where the installation had an approved INRMP. (118) First, INRMPs are adequate for conserving and rehabilitating natural resources on military bases, including habitats needed for recovery of threatened and endangered species. (119) Second, INRMPs are prepared in cooperation with the FWS and require the mutual input of the DoD, the FWS, and State fish, game and wildlife agencies concerning conservation, protection, and management of natural resources. (120) Finally, most INRMPs covering military installations that are home to threatened or endangered species will require a Section 7 ESA consultation with the FWS, or will incorporate existing plans that were generated as a result of a section 7 ESA consultation. (121) According to the DoD, INRMPs are better management tools because they do more than focus solely on the recovery of a species--they consider the health of the entire ecosystem. (122)
B. FWS Position that Critical Habitat Process is Broken
According to the FWS, designation of critical habitat as required by ESA does not offer significant additional protection beyond listing the species as threatened or endangered. (123) By listing a species, however, other sections of the ESA are triggered, providing protection to the species. Specifically, the Section 4 recovery process, (124) the Section 9 prohibition against unauthorized takings of the species, (125) Section 6 State funding, (126) and Section 7 federal agency responsibilities (127) are all triggered. (128) These protections are what the FWS believes contribute to survival and recovery of a species. (129) The actual designation of critical habitat does not add significant extra protection.
Further, the FWS believes that the critical habitat designation process has required the FWS to spend an inordinate amount of its available resources. (130) Responding to court-imposed deadlines to designate critical habitat has left the FWS with almost no ability to confirm the scientific data generated in its administrative record before making listing and critical habitat designations. (131) They have been unable to properly prioritize the workload and resources available to accomplish it. (132) They have had to delay high priority listings due to resources being consumed in litigation. (133) As of April 2003, the FWS projected that budget money that was supposed to fund the entire critical habitat program was already dedicated to complying with existing court orders and court-approved settlement agreements well into Fiscal Year 2008. (134) Between lawsuits from environmental groups suing to force critical habitat designations, and lawsuits from those adversely affected by critical habitat designation, the FWS has been tied up in litigation over this issue to the point that the program is ineffective: "It cannot be overstated that managing the endangered species program through litigation is ineffective in accomplishing the purposes of the ESA." (135)
To avoid years of litigation regarding the INRMP-managed/critical habitat-excluded lands, the DoD should ensure that its INRMPs are thoroughly and responsibly done. There will likely be lawsuits trying to force critical habitat designation affecting military lands. DoD success in the courts in early cases will serve to slow down or prevent later lawsuits. More importantly, an INRMP done properly and thoroughly enough to survive legal challenges will meet the goals espoused by the DoD with respect to the INRMP being a better management tool than critical habitat designation.
V. PROCEDURAL RECOMMENDATIONS
As a result of the recent amendment to the ESA, the DoD now has greater authority and wider responsibility with respect to managing the natural resources on its lands. Because environmental organizations object to the new paradigm of critical habitat designation on DoD lands, the DoD and the FWS would be wise to proceed responsibly. What follows is an analysis of some perceived "weak spots" in the procedure for using INRMPs, instead of critical habitat designation, on DoD land. Suggestions to strengthen the INRMPs are also made.
A. Definition of "Benefit to the Species"
In order for the DoD to get an INRMP-managed installation excluded from critical habitat designation, the FWS must certify that the INRMP provides a "benefit to the species" for which the critical habitat would otherwise be designated. (136) This is the standard that triggers the recently authorized critical habitat exclusion for DoD lands. The meaning of "benefit to the species" will likely be the subject of litigation. Because the legislation did not define "benefit to the species," the FWS will have to make its own determination. If the FWS makes a reasonable determination, it will be entitled to deference in any litigation. But, the FWS has no plans to issue a standard definition through the administrative process. (137)
Prior to the FY2004 NDAA, "benefit to the species" was part of the FWS analysis to determine whether an INRMP could be used in lieu of critical habitat designation. (138) A military installation could have its INRMP qualify as "adequate special management" if the FWS determined that the INRMP: provided a conservation benefit to the species; provided certainty that the management plan would be implemented; and provided certainty that the conservation effort would be effective. (139) In evaluating the "conservation benefit to the species" criteria, the FWS would look to see if the cumulative benefits of the activities and plans in the INRMP maintained or provided for an increase in a species' population, or the enhancement or restoration of the species' habitat--within the areas deemed essential to the conservation of the species. (140) FWS guidance stated that a conservation benefit may result from "reducing fragmentation of habitat, maintaining or increasing populations, insuring against catastrophic events, enhancing and restoring habitats, buffering protected areas, or testing and implementing new conservation strategies." (141) These standards can provide guidance to future FWS determinations, but should not be relied upon to the exclusion of the adoption of a new official standard in a regulation. A new regulation is appropriate to reflect the changes in the underlying statute.
Because the "adequate special management" analysis looked at all of three criteria and the FY2004 NDAA provision only requires a "benefit to the species" analysis, it is possible that a lower hurdle must now be cleared for the FWS to approve an INRMP that will substitute for a critical habitat designation. This lower hurdle may end up being problematic for the FWS, particularly in light of its concerns that the critical habitat designation program has been controlled by litigation.
Although Congress did not define "benefit to the species," there is some indication of Congressional expectations in the Conference Committee Report. (142) In the version of the critical habitat exclusion offered by the House of Representatives, critical habitat designation was precluded on lands subject to an INRMP when the Secretary of the Interior determined that the INRMP "addresse[d] special management considerations or protection of endangered or threatened species." (143) In the Senate version, designation would have been precluded when the Secretary of the Interior certified in writing that: "(1) the management activities identified in the [INRMP] will effectively conserve threatened and endangered species; and (2) that adequate funding will be provided for such management activities." (144) Further, the conferees in the Committee resolving the differences between the two stated that they expect an INRMP to be assessed for its "potential contribution to species conservation, giving due regard to those habitat protection, maintenance, and improvement projects ... that address the particular conservation and protection needs of the species for which critical habitat would otherwise be proposed." (145) To take this language seriously, the FWS should do more than a case-by-case determination of whether an INRMP provides a "benefit to the species."
The FWS should promulgate a standard definition of "benefit to the species," using standard notice and comment procedures. The definition should include the three elements in the pre-FY 2004 NDAA analysis, as well as the language from the Conference Committee. Ultimately, the definition must be good enough to warrant deference when it is challenged. The DoD should encourage the FWS to promulgate the definition as soon as the FWS is able.
B. Public Input when Developing INRMPs
Once an INRMP demonstrably provides a "benefit to the species," however that is ultimately defined, it becomes a substitute for critical habitat designation. Because of the scope of a successful INRMP, and its effect on the entire ecosystem of a military installation, it is arguably a major federal action significantly affecting the quality of the human environment, requiring analysis under the National Environmental Policy Act (NEPA). (146) Currently, DoD policy does not require that an INRMP, or an INRMP revision, be subject to the NEPA process; although such analysis is permitted, especially if the changes will result in biophysical consequences materially different from the existing INRMP and its NEPA document. (147)
The DoD would be prudent to require a NEPA analysis for all INRMPs, and for all future revisions to existing INRMPs, particularly if the INRMP is being used as a substitute for critical habitat designation. Using NEPA would allow for public input into the process, along with notice and comment procedures, and would make a FWS decision that the INRMP provides a "benefit to the species" more defensible in court. Further, the NEPA public participation would fulfill the public input requirements of the Sikes Act. (148)
Although the Sikes Act requires that INRMPs be reviewed every five years, DoD policy requires an annual review. (149) DoD policy is to invite public comment on changes resulting from these reviews only when the comments would otherwise be required by NEPA. (150) The DoD would be prudent to consider changing this policy to one that invites public comment for every Sikes Act five-year review, and any time the INRMP is revised. This would allow the public to submit inputs that have arisen during the previous period of INRMP-based management.
Using NEPA procedures to develop and renew INRMPs will standardize the way in which INRMPs are created and amended. This practice will help insure that INRMPs are as effective as critical habitat designation at conserving and protecting endangered species.
C. Unfunded INRMPs
Any INRMP is only as good as its funding. Therefore, its substitution for critical habitat designation should be dependent on the underlying funding. DoD policy requires that natural resources compliance requirements be categorized and funded based upon a priority system. (151) The category of "must fund" projects and actions covers those that meet the FWS "special management criteria" for threatened and endangered species management, provide for qualified natural resources personnel, and prevent loss or degradation of resources that may affect military readiness. (152) Not all actions and projects covered in an INRMP fall into the "must fund" category. (153) Understandably, the natural resources priorities are prioritized according to their impact on military readiness. An area for improvement is the manner in which INRMPs are funded. The discretion of military commanders to determine military readiness needs, and the natural resources categories being tiered according to impact on military readiness may lead to some portions of INRMPs never being implemented due to lack of funds.
In the pre-Norton situation, the FWS required adequate funding of INRMPs in order to determine whether an INRMP met the "provides adequate special management" standard that allowed the INRMP to substitute for critical habitat designation. (154) In order to make such a determination, the FWS required that an INRMP provide a conservation benefit to the species, provide certainty that the management plan will be implemented, and provide certainty that the conservation effort will be effective. (155) Proof of adequate funding was required to get the designation.
The DoD would be prudent to ensure that INRMPs are adequately funded every year. Without a definition of "benefit to the species" in place, it is possible that an INRMP could be approved by the FWS, and then not be adequately funded in subsequent fiscal years, reducing the INRMP's effectiveness.
VI. SUBSTANTIVE RECOMMENDATIONS
For the INRMP to fulfill its purpose, it should be broad-based and integrative. It should look at the ecosystem(s) on the installation, as well as the ecosystem(s) on adjacent lands. In seeking and obtaining from Congress the change to the ESA that precluded critical habitat designation, the DoD trumpeted the benefits of using INRMPs, rather than critical habitat designation, for natural resource management on military installations. (156) INRMPs embrace current scientific principles relating to ecosystem management and biodiversity protection, broadly focusing on the health of a whole ecosystem rather than just on a specific species within that ecosystem. (157) By using broadly-scoped INRMPs that consider the ecosystems on military installations and the surrounding lands, the DoD can monitor the health of the ecosystems and the improvement of endangered species and their habitats. Just as importantly, the DoD can ensure that it does not end up bearing a disproportionate share of the responsibility and cost of these tasks in the region where the military installation is located.
Several considerations for INRMPs are discussed below. They consist of environmental obligations from other environmental laws, or on other lands that are adjacent to DoD lands. A successful INRMP should include a discussion of each of the following, if they exist in a particular case.
A. Reasonable and Prudent Measures from Individual Biological Opinions
As part of its ESA obligations, an individual military installation may have to meet requirements imposed by consultations with the FWS. (158) When the DoD takes an action that may adversely affect a listed or proposed species, certain steps must be taken. (159) The DoD is responsible for submitting a biological assessment of the proposed action to the FWS, including an assessment of the action's effects on species and habitat, for determination of whether a formal consultation must be conducted. (160) It is up to the DoD to determine the contents of the biological assessment. (161)
The FWS will respond to the biological assessment with a biological opinion (BO). (162) There are three main options for the BO. It may find: that the proposed DoD action is not likely to jeopardize a listed species and is not likely to destroy/modify critical habitat (a "no jeopardy" opinion); that the action is likely to jeopardize a listed species or destroy/modify critical habitat (a "jeopardy" opinion); or that the action is likely to jeopardize a listed species or destroy/modify critical habitat, but that there are reasonable and prudent alternatives to the action. (163)
In cases in which the FWS finds that the DoD action (or reasonable prudent alternative) will result in a "take" (164) of a listed species, and that the "take" does not violate ESA [section] 7(a)(2) (165), the FWS will issue an incidental take statement (ITS) along with the biological opinion. (166) The ITS will specify: the impact of the incidental takes; the reporting conditions for each individual instance of a take; handling and disposal procedures for each take; and "reasonable and prudent measures" (RPMs) that must be taken by the DoD to minimize the impact of the takes, (167) RPMs can only impose minor changes on the DoD action, but they must be complied with by the DoD. Because the RPMs are a result of consultation with the FWS regarding threatened or endangered species and habitat, any conditions placed upon an installation as a result of RPMs should be included in the underlying INRMP.
B. Recovery Plans
A recovery plan should be included in an INRMP. Once a species is listed as threatened or endangered, ESA requires that a recovery plan be developed for the species. (168) In developing recovery plans, the FWS can consult public and private agencies, and must prioritize which species will most likely benefit from the plan. (169)
A conservation plan must contain a description of site-specific management actions necessary to achieve the goal of the plan--objective, measurable criteria that, when met, warrant the species being de-listed--and time and cost estimates for obtaining the plan's goal, as well as intermediate steps along the way. (170) And, most significantly for INRMP considerations, any new or revised recovery plan must provide public notice and opportunity for comment. (171) All information gained through the public comment process must be considered by the FWS before approving the plan and by any federal agency prior to implementing the plan. (172)
Within a recovery plan, a variety of actions may be required. They utilize the best scientific and commercial data available and may require the creation of new habitat, the restoration of existing habitat, or reintroduction of the species into suitable habitat. (173) There are many threatened and endangered plants that exist almost wholly on DoD lands. (174) If these plant populations continue to dwindle on other lands, the focus on their recovery on DoD lands will likely intensify, to prevent them from disappearing altogether. A successful INRMP should encompass recovery plans for any endangered or threatened species on the installation. Also, if NEPA notice and comment procedures are used, as recommended above, the notice and comment requirements surrounding conservation plans can be dealt with at the same time.
C. Section 7(a)(1) Conservation Planning
The next issue that should be addressed in a successful INRMP is ESA [section] 7(a)(1) conservation planning. This section requires that the DoD, through consultation with the FWS, be proactive in furthering the purposes of the ESA, by planning for and carrying out conservation programs for listed species. (175) Under this section, federal agencies often enter into partnerships and Memoranda of Understanding (MOUs) with the FWS for implementing and funding conservation agreements, management plans, and recovery plans developed for listed species. (176) Any MOUs that have been implemented for a DoD installation should be included within the INRMP.
D. Mitigation and Monitoring Requirements from NEPA Process
Earlier, this article recommended that the DoD require NEPA procedures be used when initially developing and implementing the INRMP for all installations. Currently, NEPA procedures may be used. When NEPA has been used to establish an INRMP, the final Record of Decision is likely to contain mitigation and monitoring requirements for the proposed action. (177) Mitigation consists of methods to minimize or eliminate adverse impact from a proposed action. It includes not taking certain parts of an action; limiting the degree or magnitude of an action; repairing, rehabilitating, or restoring the affected environment to rectify adverse impact; conducting preservation and maintenance operations over the life of the action; and replacing or providing substitute resources or environments to offset any adverse environmental impacts. (178) When NEPA has been used to develop an INRMP, any mitigation and monitoring requirements that come out of the NEPA process should be incorporated into the INRMP.
E. Federal Land Policy Management Act and National Forest Management Act Resource Management Plans
The above recommendations for inclusion into INRMPs have all focused on environmental issues on a military installation. There are also several environmental planning tools that operate on lands outside a military installation that ought to be considered as part of a successful INRMP. The border of a particular ecosystem will not usually coincide with the border of the military installation on which it is located. To properly manage the ecosystem, the lands outside the installation should be considered.
The Federal Land Policy Management Act requires the Bureau of Land Management (BLM) to "develop, maintain, and when appropriate, revise" land use plans for lands under BLM jurisdiction. (179) These resource management plans account for natural resources on BLM lands and regulate activities on them. For example, the plans designate areas that are acceptable for oil and gas leasing and development, establish routes for off-road vehicles, and identify areas in need of special protection. The areas in need of special protection are designated "areas of critical environmental concern." (180) Through the resource management plans, BLM lands are actively managed to allow multiple uses without degrading overall environmental quality.
Similar plans are required by the National Forest Management Act. The Forest Service must develop resource management plans for the National Forest System. (181) Both the BLM and Forest Service plans are subject to public notice and comment prior to being finalized. (182)
When a military installation is bordered by BLM land or Forest Service land, they will almost always share land that is part of the same ecosystem. As an ecosystem management tool, the INRMP should consider and possibly adopt measures equivalent to those in adjacent Resource Management Plans.
F. Comprehensive Wildlife Conservation Strategies
In addition to federally managed lands that border DoD lands, there may also be state-managed wildlife conservation strategies to consider. Congress has established a program for all fifty states and six territories to develop Comprehensive Wildlife Conservation Strategies (CWCS). (183) The plans were submitted by all fifty states and six territories by the October 1, 2005 deadline. (184) Once the plans are approved, they will receive significant federal funding. (185) The CWCS will be the first national approach to wildlife conservation. (186) A successful INRMP will consider how the state CWCS affects the land surrounding the installation.
G. Adjacent Private Lands
In addition to considering other federal and state lands adjacent to military installations, the DoD should also address private lands in an INRMP. The FWS has several arrangements available to private landowners to help them manage endangered species on their own land.
1. Habitat Conservation Plans
Private landowners who wish to carry out actions that may "take" an endangered species must obtain a permit from the FWS. (187) An incidental take permit lets a landowner lawfully use his property, even if his actions accidentally take an endangered species. (188) This is accomplished through an incidental take permit. (189) For an individual private landowner to receive an incidental take permit for his own property, the landowner must prepare and submit a Habitat Conservation Plan (HCP). (190)
The HCP must include information on the impact of an incidental take; steps taken to minimize and mitigate the impacts, along with funding for these steps; alternative actions considered by the applicant and why they are not being pursued; and other relevant information specified by the FWS. (191) Following a public notice and comment period, the FWS will issue the permit if three conditions are met. First, the FWS must find that the taking will be incidental. (192) Second, the FWS must find that the effects of the taking will be minimized and mitigated, to include proper funding for doing so. (193) Finally, the FWS must find that the taking will not appreciably reduce the likelihood of survival and recovery of the species. (194) When compiling the HCP application, the landowner consults individual scientists, as necessary, to propose the appropriate minimization and mitigation measures. (195) When a HCP covers a species about which there are gaps in the biological data, adaptive management provisions are included in the HCP. (196) Adaptive management is important because it provides measurable biological goals and objectives through research and monitoring, combined with future adjustments to the conservation management plan when new data warrants it. (197)
A successful INRMP will consider HCPs on the adjacent lands. In particular, adaptive management principles that have been adopted by adjacent landowners may provide needed information or suggestions to INRMP planners.
2. Safe Harbor Agreements
A Safe Harbor Agreement (SHA) is an agreement between a private landowner and the FWS that protects habitat that comprises the ecosystem for a listed species, while preventing future additional regulation of the private lands. (198) A private landowner can seek to establish a SHA on his property. The FWS will gather information from the landowner, evaluate the habitat and conditions on the lands, and develop a conservation plan. (199) If the FWS determines there will be a "net conservation benefit" from the agreement's management plan, they will issue the agreement. (200) Under the SHA, the landowner agrees to voluntarily undertake management activities on his property to enhance, restore, or maintain habitat for threatened and endangered species and the FWS agrees not to impose future land-use restrictions on the property in the future. (201) Public hearings and comments are required before a Safe Harbor Agreement can be issued. (202) Any existing SHAs covering private lands in the vicinity of the military installation should be considered in a successful INRMP.
3. Candidate Conservation Agreements
A Candidate Conservation Agreement (CCA) is a formal agreement between the FWS and a private landowner to help preserve species that are not yet listed as endangered or threatened, but are either proposed to be listed, or are likely to become listed. (203) The landowner agrees to take certain actions to reduce the threats to these species, so that listing will not be necessary. (204) In return, the landowner receives an incidental take permit to allow a taking or habitat modification to achieve the conditions set out in the agreement. (205) CCAs do not preclude further land use restrictions in the future, however. Although there are many CCAs in force, the most common agreement of this type is a Candidate Conservation Agreement with Assurances. Public hearings and comments are required before a CCA and permit can be issued. (206) Any existing CCAs should be addressed in a successful INRMP.
4. Candidate Conservation Agreements with Assurances
A Candidate Conservation Agreement with Assurances (CCAWA) is the same type of agreement as the Candidate Conservation Agreement, but it includes provisions in which the FWS agrees not to enact further land use restrictions on the private property in the future. (207) A CCAWA also requires a public notice and comment period. (208)
For military installations adjacent to private lands affected by an HCP, a SHA, a CCA or a CCAWA, the INRMP should evaluate whether or not the ecosystem on the installation is connected to those on the private lands. If there are habitat impacts on the installation that affect the adjacent private lands, these should be addressed in the INRMP.
H. Memorandum of Agreement as Required by Migratory Bird Treaty Act Executive Order
On January 10, 2001, President Clinton signed Executive Order 13186, requiring that all federal agencies incorporate measures to conserve and protect migratory birds into their activities. (209) The executive order was signed to ensure that federal agencies help the United States meet its obligations under the Migratory Bird Treaty Act. (210) The executive order requires all federal agencies to enter into a Memorandum of Agreement with the FWS, covering how the agency will promote conservation of migratory birds. (211) Any obligations that the DoD has with respect to conserving and protecting migratory birds as a result of Memorandums of Agreement pursuant to Executive Order 13186 should be encompassed by an INRMP.
VII. CONCLUSION: A GOOD INRMP IS A GOOD SUBSTITUTE FOR CRITICAL HABITAT DESIGNATION
The INRMP is more than a defensible substitute for critical habitat designation, if it is done responsibly and comprehensively. The DoD should use its newly gained authority to demonstrate its commitment to conserving healthy ecosystems on its installations and to demonstrate its ability to meet its primary mission, without unnecessarily threatening the natural resources on DoD lands.
Because of continued encroachment by surrounding communities, the DoD should be proactive and actively manage these plans. To help build rapport, and to be a good neighbor, the DoD should require NEPA procedures for all INRMPs, to ensure adequate public notice and comment.
Outside pressure will continue to increase if the DoD does not successfully manage its natural resources using INRMPs. This is particularly true regarding the installations that contain large areas of habitat for species that no longer thrive in other areas. The procedural and substantive recommendations made in this paper will help the DoD to develop and use "green" INRMPs. They should be "green" in that they protect the ecosystems and recover the species they protect. And, they should be "green" in that they should be consistently funded with enough money to accomplish their environmental goals.
By responsibly developing and funding INRMPs, the DoD will ensure that it can continue to meet its primary mission, as well as protect the natural resources on its lands. It is very likely that the DoD's ability to do this will be challenged in the courts. Early success in court will breed later success and will solidly establish the DoD's credibility on environmental issues. Early failure in court will give the DoD's critics ammunition. The DoD would be prudent to consider adopting these procedural and substantive changes to ensure the future success of its INRMPs and of its primary mission of national defense.
(1) DEPT OF DEFENSE FACT SHEET: THE ENDANGERED SPECIES ACT'S CRITICAL HABITAT PROVISION, http://www.denix.osd.mil/denix/Public/Library/Sustain/RRPI/ Documents/es_fact_sheet_f.doc (last visited June 16, 2006) [hereinafter DoD FACT SHEET].
(2) MICHELE LESLIE ET AL., CONSERVING BIODIVERSITY ON MILITARY LANDS: A HANDBOOK FOR NATURAL RESOURCE MANAGERS [section] 1.2, n.5 (1996), available at https://www.denix.osd.mil/denix/Public/ES-Programs/Conservation/Biodiversity/ footnotes. The Department of the Interior and the Department of Agriculture are first and second, managing 504 million acres and 191 million acres, respectively. See DEPT OF INTERIOR QUICK FACTS, available at http://www.doi.gov/facts.html [hereinafter DOI Quick FACTS] (last visited Mar. 1, 2006); ABOUT us--MEET THE FOREST SERVICE, https://www.fs.fed.us/aboutus/meetfs.shtml (last visited Mar. 1, 2006).
(4) GEORGE CATLIN, An Artist Proposes a National Park, in AMERICAN ENVIRONMENTALISM: READINGS IN CONSERVATION HISTORY 31 (Roderick Nash ed., 3d ed. 1990).
(5) See Pub. L. No. 101-417, 104 Stat. 904 (1990) (commemorating the Centennial of Yosemite National Park).
(6) Yellowstone Park Act of 1872, 16 U.S.C. [section] 21 (Lexis 2006). For a discussion of the Yellowstone ecosystem, see CHARLES F. WILKINSON, The Yellowstone Ecosystem and an Ethic of Place, in THE EAGLE BIRD: MAPPING A NEW WEST 162-85 (1992).
(7) Yellowstone Park Act of 1872, 16 U.S.C. [section] 21 (Lexis 2006).
(8) DOI QUICK FACTS, supra note 2.
(9) The mission of the Forest Service is "sustain the health, diversity and productivity of the Nation's forests and grasslands to meet the needs of present and future generations." See FOREST SERVICE, ABOUT us--MISSION, https://www.fs.fed.us/aboutusdmeetfs.shtml (last visited Mar. 1, 2006).
(10) See generally U.S. DEP'T OF DEFENSE, DIR. 5100.1, FUNCTIONS OF THE DEPARTMENT OF DEFENSE AND ITS MAJOR COMPONENTS (1 Aug. 2002).
(11) Department of Defense Appropriations Act, Pub. L. No. 102-172, 105 Stat. 1150, 1155-56 (1992).
(13) 16 U.S.C. [section] 1533(a)(3)(A)(i) (Lexis 2006).
(14) Id. [section] 1538(a)(1)(b).
(15) DoD FACT SHEET, supra note 1.
(16) See generally GOVERNMENT ACCOUNTABILITY OFFICE, IMPLEMENTATION STRATEGY NEEDED TO INCREASE INTERAGENCY MANAGEMENT FOR ENDANGERED SPECIES AFFECTING TRAINING RANGES, http://www.gao.gov/new.items/d03976.pdf (last visited Aug. 3, 2006).
(17) Id. at 1 n.2.
(18) Encroachment in the form of urban development led to the closure of Lowry Air Force Base, CO and Chanute Air Force Base, IL. U.S. DEP'T OF AIR FORCE, HANDBOOK 32-7084, AICUZ PROGRAM MANAGER'S GUIDE [paragraph] 1.1.1. [hereinafter AFH 32-7084] (1 Mar. 1999).
(19) AFH 32-7084, supra note 18, at [paragraphs] 1.4-184.108.40.206. There were even earlier efforts dealing solely with noise problems. Air Force studies on community reaction to noise from aircraft operations began as early as 1957, and by 1964 the Air Force recognized the link between aircraft noise and land use planning. Id. at [paragraph] 1.4.1.
(20) C.V. Glines, Closing in on the Airfields, AIR FORCE MAGAZINE, Jan. 1989, at 74. The "Greenbelt" buffer was a rectangular area of about one mile on each side and two and a half miles from the end of base runways. Id.
(21) AFH 32-7084, supra note 18, at [paragraph] 220.127.116.11.
(22) U.S. DEP'T OF DEFENSE, INSTR. 4165.57, AIR INSTALLATIONS COMPATIBLE USE ZONES, (8 Nov. 1977). Additional authority for the program comes from OFFICE OF MANAGEMENT AND BUDGET, FEDERAL MANAGEMENT CIRCULAR 75-2, COMPATIBLE LAND USES AT FEDERAL AIRFIELDS. In addition to requiring federal agencies that operate an airfield to work with state and local authorities to achieve compatible land use planning, this circular also requires other federal agencies to ensure their programs foster compatible land use. Id.
(23) AFH 32-7084, supra note 18, at [paragraph] 1.1.
(24) Scott M. Farley & Scott C. Belfit, Addressing Encroachment with Cooperative Agreements and Conservation, FEDERAL FACILITIES ENVIRONMENTAL JOURNAL, Summer 2001, at 33-44. For general discussions of the use of cooperative agreements to preserve ecosystems, see AMY IRVINE, MAKING A DIFFERENCE: STORIES OF HOW OUR OUTDOOR INDUSTRY AND INDIVIDUALS ARE WORKING TO PRESERVE AMERICA'S NATURAL PLACES (2001) and LAND CONSERVATION THROUGH PUBLIC/PRIVATE PARTNERSHIPS (Eve Endicott ed., 1993).
(25) On June 6, 2006, the FWS announced the recovery of the federally-endangered red-cockaded woodpecker five years earlier than anticipated. Press Release, U.S. Fish & Wildlife Service, Fort Bragg Reaches Recovery Milestone for the Endangered Redcockaded Woodpecker Five Years Earlier than Expected (June 6, 2006).
(26) Overview, 2003 Readiness and Range Preservation Initiative, https://www.denix.osd.mil/denix/Public/Library/Sustain/RRPI/Documents/ overview_f.doc.
(28) This authority comes from the Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, [section] 2811, 116 Stat. 2458, 2705-07 (2002) (codified at 10 U.S.C. 2684a (2004)).
(29) National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, [section] 318(a)(3), 117 Stat. 1392, 1432-1433 (2003) [hereinafter FY2004 Authorization Act] (codified at 16 U.S.C. [section] 1536(b)(3)(B)).
(30) See LESLIE ET AL., supra note 2, [section] 1.2.
(33) BETSY A. CODY, CONG. RESEARCH SERV., MAJOR FEDERAL LAND MANAGEMENT AGENCIES: MANAGEMENT OF OUR NATION'S LANDS AND RESOURCES, REP. NO. 95-599, http://www.ncseonline.org/NLE/CRS/abstract.cfm?NLEid=765 (last visited June 23, 2006).
(36) Louis J. Puleo, Conservation Issues on Military Lands: Some Thoughts on a Framework for Successful Mission Integration, 17 J. LAND USE & ENVTL. L. 431,434 (2002).
(37) 16 U.S.C. [section] 1532(6), (20) (Lexis 2006).
(38) Id. [subsection] 1531(b), (c)(1), 1532(3), 1536(a).
(39) Id. [section] 1538(a)(1)(B); 50 C.F.R. [section] 17.31 (Lexis 2006).
(40) 16 U.S.C. [section] 1532(13) (Lexis 2006).
(41) Id. [section] 1532(7).
(42) Id. [section] 1532(19).
(43) 50 C.F.R. [section] 17.3 (Lexis 2006).
(44) 16 U.S.C. [section] 1536(a)(2) (Lexis 2006).
(45) Id. FWS and NMFS both have responsibility for administering the Endangered Species Act, depending on whether the species in question is land-based or water-based. For the remainder of this article, the term FWS will be used. Unless otherwise stated, statements made about FWS apply equally to NMFS.
(46) 16 U.S.C. [section] 1536(a)(1) (Lexis 2006).
(47) Id. [section] 1531(b); 16 U.S.C. [section] 1532(3)(Lexis 2006).
(48) 50 C.F.R. [section] 402 (Lexis 2006).
(49) 16 U.S.C. [section] 1536(b)(3)(A) (Lexis 2006).
(50) Id. [section] 1536(h).
(51) Id. [section] 1536(e)-(p).
(52) Id. [section] 1536(i).
(53) Id. [section] 1536(j).
(54) Id. [section] 1533(a)(3)(A)(i).
(55) Id. [section] 1533(b)(2).
(56) H.R. 1497, .4 Bill to Reauthorize Title I of the Sikes Act: Hearings Before the Subcomm. on Fisheries, Conservation, Wildlife, and Oceans, House Res. Comm., 108th Cong. (Apr. 10, 2003) (statement of Raymond F. DuBois Jr., Deputy Undersecretary of Defense, Installations and Environment) [hereinafter DuBois Testimony], available at http://resourcescommittee.house.gov/archives/108/testimony/ raymonddubois.htm.
(57) U.S. FISH & WILDLIFE SERVICE, DIGEST OF FEDERAL RESOURCE LAWS OF INTEREST: SIKES ACT, http://www.fws.gov/laws/lawsdigest/sikes.html (last visited Feb. 28, 2006).
(61) 16 U.S.C. [section] 670a(a)(l)(B) (Lexis 2006).
(62) Id. [section] 670a(a)(2).
(63) Id. [section] 670a(3).
(64) Id. [section] 670a(b)(1) (Lexis 2006).
(66) Id. [section] 670a(b)(1)(F).
(67) Id. [section] 670a(b)(1)(H).
(68) Id. [section] 670a(b)(1)(I).
(69) DuBois Testimony, supra note 56.
(71) 16 U.S.C. [section] 670a(b)(2) (Lexis 2006).
(72) Memorandum from Alex A. Beehler, Assistant Deputy Under Secretary of Defense (Environment, Safety & Occupational Health), Implementation of Sikes Act Improvement Amendments: Supplemental Guidance Concerning INRMP Reviews [hereinafter Beehler Memo] (Nov. 1, 2004), https://www.denix.osd.mil/denixJPublic/Library/NCR/Documents/ Supplemental-Sikes-signed_2004.pd f.
(73) 16 U.S.C. [section] 1532 (5)(A) (Lexis 2006).
(74) Critical Habitat Designations Under the Endangered Species Act: Hearings Before the Subcomm. on Fisheries, Wildlife, and Water, Senate Comm. on Env't & Pub. Works, 108th Cong. (Apr. 10, 2003) (statement of Craig Manson, Assistant Secretary of the Interior [hereinafter Manson Testimony]), available at http://epw.senate.gov/hearing_statements.cfm?id=213437.
(76) 16 U.S.C. [section] 1540(g) (Lexis 2006).
(77) See Catron County Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996); Natural Res. Def. Council v. U.S. Dep't of the Interior, 113 F. 3d 1121 (9th Cir. 1997); Forest Guardians v. Babbitt, 164 F.3d 1261, (10th Cir. 1998); N.M. Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1283 (10th Cir. 2001).
(78) See notes 45-49 and accompanying text.
(79) 16 U.S.C. [section] 1536(a) (Lexis 2006).
(80) Id. [section] 1532 (5)(a)(ii).
(82) Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434 (5th Cir. 2001).
(83) See notes 74-77 and accompanying text.
(84) See Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Mexican Spotted Owl, 66 Fed. Reg. 8530, 8537 (Feb. 1, 2001).
(85) 240 F. Supp. 2d 1090 (D. Ariz. 2003).
(86) Id. at 1097-1103.
(87) Id. at 1094-1096.
(88) Id. at 1099-1100.
(89) Id. at 1099.
(91) DEPT OF DEFENSE, OVERVIEW, 2003 READINESS AND RANGE PRESERVATION INITIATIVE (RRPI), https://www.denix.osd.mil/denix/Public/Library/Sustain/RRPI/ Documents/overview_f.doc (last visited Aug 3, 2006).
(92) The range is operated by the 56th Fighter Wing Range Management Office at Luke AFB. Luke AFB, AZ, http://www.luke.af.mil/StaffAgencies/RMO/RMO.asp (last visited Aug. 3, 2006). The U.S. Air Force and the U.S. Marine Corps use it to test armament, train for aerial gunnery, practice tactical maneuvering and air support. GlobalSecurity.org, Barry M. Goldwater Range, [hereinafter GlobalSecurity.org] http://www.globalsecurity.org/ military/facility/goldwater.htm (last visited Aug. 3, 2006).
(93) GlobalSecurity.org, supra note 92.
(96) 944TH FIGHTER WING, FACT SHEET, BARRY M. GOLDWATER RANGE, http://www.944fw.afrc.af.mil/library/factsheets/factsheet.asp?id=3550 (last visited Aug. 14, 2006).
(97) ARIZONA BUREAU OF LAND MANAGEMENT, SONORAN DESERT NATIONAL MONUMENT PROCLAMATION, http://www.blm.gov/az/sonoran/sdproc.htm (last visited Aug. 14, 2006).
(98) Hearing on Military Training Capabilities/Shortfalls Before the S. Comm. on Military Readiness, 107th Cong. (Mar. 8, 2002) (statement of General Donald G. Cook, Commander, Air Education and Training Command), available at http://www.housegov/hasc/openingstatementsandpressreleases/107thcongress/ 02-03-08cook.html (last visited Mar. 1, 2006).
(101) FY 2004 Authorization Act, supra note 29, [section] 318(a)(3).
(102) Id. [section] 318(b). The balancing test required the Secretary of the Interior to designate critical habitat based on the best scientific data available after considering economic impact, and other relevant impact of designating an area to be critical habitat. 16 U.S.C. [section] 1533 (b)(2) (Lexis 2006). If the benefits of designating the land as critical habitat were outweighed by the economic and other relevant impact, the Secretary could decline to designate the land as critical habitat. Id. National security concerns could have been considered as an "other relevant impact," but were not specifically listed in the statute. The FY 2004 National Defense Authorization Act added "the impact on national security" as a specifically enumerated consideration, along with the economic impact of designation. FY 2004 Authorization Act, supra note 29, [section] 318(b).
(103) NAT'L WILDLIFE FEDERATION FACTSHEET, FWS's CASE-BY-CASE REVIEW OF INRMPs IS ESSENTIAL FOR CONSERVING IMPERILED WILDLIFE: REJECT DEFENSE DEPARTMENT'S PROPOSED EXEMPTION FROM THIS ACCOUNTABILITY, http://epw.senate.gov/108th/FWS_Review.doc (last visited Feb. 27, 2006).
(105) Critical Habitat Designations Under the Endangered Species Act: Hearings Before the Subcomm. on Fisheries, Wildlife, and Water, Senate Comm. on Env't & Pub. Works, 108th Cong. (Apr. 10, 2003) (statement of John F. Kostyack, National Wildlife Federation Senior Counsel), available at http://epw.senate.gov/ hearing_statements.cfm?id=213437.
(106) Press Release, Ctr. for Biological Diversity, House Republican Radicals May Undo Bipartisan Senate Compromise on Military Environmental Exemptions (Aug. 21, 2003), available at http://www.sw-center.org/swcbd/press/dod8-21-03.htm (last visited Feb. 27, 2006).
(107) Telephone Interview with John F. Kostyack, Senior Counsel, National Wildlife Federation (May 26, 2005).
(111) Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the California Red-legged Frog (Rana aurora draytonii), 69 FR 19620, 19629 (Apr. 13, 2004).
(116) Dubois Testimony, supra note 56.
(123) Manson Testimony, supra note 74.
(124) 16 U.S.C. [section] 1533(f)(1) (Lexis 2006).
(125) Id. [section] 1538(a)(1)(B).
(126) Id. [section] 1535(d)(1).
(127) Id. [section] 1536.
(128) Manson testimony, supra note 74.
(136) FY 2004 Authorization Act, supra note 29, [section] 318(a).
(137) Telephone Interview with Lewis Gorman, U.S. Fish & Wildlife Serv. (Jun. 10, 2005).
(138) Memorandum from Marshall P. Jones, Jr., U.S. Fish & Wildlife Serv. Acting Director, Guidance for Coordination on Department of Defense Sikes Act Integrated Natural Resource Management Plans (June 8, 2001) [hereinafter FWS Memo], available at http://www.fws.gov/ habitatconservation/SAIA%202001%20Guidance%20FWS.pdf (last visited Feb. 27, 2006).
(142) H.R. CONF. REP. NO. 108-354, at 667 (2003).
(146) 42 U.S.C. [section] 4332(C) (Lexis 2006).
(147) DuBois Memo, supra note 56. When NEPA is not used, DoD policy is to give the public a 30-day period to review and comment on an INRMP. Id.
(148) 16 U.S.C. [section] 670a(a)(2) (Lexis 2006).
(149) Beehler Memo, supra note 72.
(150) Id. In other words, whenever the changes result in significant biophysical consequences materially different from those covered in the initial INRMP.
(151) DoD INSTRUCTION 4715.3, ENVIRONMENTAL CONSERVATION PROGRAM (May 3, 1996). Class 0 contains INRMP actions necessary to rehabilitate or prevent degradation of resources that may affect military readiness. Class 1 covers current management of species and habitats of concern necessary to prevent the listing of a species that could impact military readiness. Class 2 covers requirements. Class 3 covers natural resources enhancement projects beyond those required for compliance. DuBois Memo, supra note 56.
(152) DuBois Memo, supra note 56.
(154) See FWS Memo, supra note 138.
(156) Dubois Testimony, supra note 56.
(158) 16 U.S.C. [section] 1536 (Lexis 2006).
(159) 50 C.F.R. [section] 402.10(a) (Lexis 2006).
(160) Id. [section] 402.12(a).
(161) Id. [section] 402.12 (f). The following may be considered for inclusion in the biological assessment: the results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally; The views of recognized experts on the species at issue; A review of the literature and other information; An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies; An analysis of alternate actions considered by the federal agency for the proposed action. Id.
(162) Id. [section] 402.12(k)(2).
(163) Id. [section] 402.14(h)(3).
(164) "Take" is defined broadly. It means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. [section] 1532(19) (Lexis 2006).
(165) ESA [section] 7(a)(2) says that a federal agency action may not jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat for the species. 16 U.S.C. [section] 1536(a)(2) (Lexis 2006).
(166) 50 C.F.R. [section] 402.14(i)(1) (Lexis 2006).
(167) 50 C.F.R. [section] 402.14(i)(1)(i)-(v) (Lexis 2006).
(168) 16 U.S.C. [section] 1533 (f)(1) (Lexis 2006).
(169) Id. [section] 1533 (f)(1)(A), (0(2).
(170) Id. [section] 1533 (f)(1)(B)(i)-(iii).
(172) Id. [section] 1533 (f) (4).
(172) Id. [section] 1533 (f)(4), (5).
(173) U.S. FISH & WILDLIFE SERV., RECOVERY REPORT TO CONGRESS, FISCAL YEARS 2001-2002 2, available at http://endangered.fws.gov/recovery/reports_to_congress/ 2001-2002/report_text.pdf (last visited Feb. 27, 2006).
(174) Id. at 14.
(175) 16 U.S.C. [section] 1536(a)(1) (Lexis 2006). The purposes of the ESA are to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of various treaties and conventions providing for the protection of animal and plant species, Id. [section] 1531(b).
(176) U.S. FISH & WILDLIFE SERV., FINAL ESA SECTION 7 CONSULTATION HANDBOOK 1-1 (1998), available at http://endangered.fws.gov/consultations/s7hndbk/ chl-3.pdf (last visited Feb. 28, 2006).
(177) See COUNCIL ON ENVTL. QUALITY, NEPA's 40 MOST ASKED QUESTIONS, 46 Fed. Reg 18026 (1981), available at http://ceq.eh.doe.gov/nepa/regs/40/30-40.HTM#39 (last visited Feb. 28, 2006).
(178) See COUNCIL ON ENVTL. QUALITY, REGULATIONS FOR IMPLEMENTING NEPA, [section] 1508.20, 46 Fed. Reg. 18026 (1981), available at http://ceq.eh.doe.gov/ Nepa/regs/ceq/toc_ceq.htm (last visited Feb. 28, 2006).
(179) 43 U.S.C. [section] 1712(a) (Lexis 2006).
(180) Id. [section] 1702(a).
(181) 16 U.S.C. [section] 1604(a) (Lexis 2006).
(182) 43 U.S.C. [section] 1713(f) (Lexis 2006); 16 U.S.C. [section] 1604(d) (Lexis 2006).
(183) TEAMING WITH WILDLIFE, STATE WILDLIFE CONSERVATION STRATEGIES, available at http://www.teaming.com/pdf/State%20Strategies%20Overview-pdf (last visited Feb. 28, 2006). The six territories are: American Samoa, the District of Columbia, Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. See STATE BY STATE INFORMATION, available at http://www.teaming.com/state_pages.htm (last visited February 28, 2006).
(184) THEODORE ROOSEVELT CONSERVATION PARTNERSHIP, IMPROVING FISH AND WILDLIFE MANAGEMENT THROUGH STATE WILDLIFE ACTION PLANS http://www.trcp.org/ if_fundingstatewildlifegrants.aspx (last visited Aug. 14, 2006).
(185) Id. OMB plans to give $350M annually to the plans. Id. As of December 12, 2005, the following state/territory plans had been approved: Alabama, Georgia, Hawaii, Illinois, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada, North Carolina, Oklahoma, Utah, Vermont, Washington, Wisconsin, and Wyoming. See STATE WILDLIFE ACTION PLANS, available at http://www.teaming.com/ state_wildlife_strategies.htm (last visited February 28, 2006).
(186) TEAMING WITH WILDLIFE, STATE WILDLIFE CONSERVATION STRATEGIES, available al http://www.teaming.com/pdf/State%20Strategies%20Overview-pdf (last visited Feb. 28, 2006).
(187) 16 U.S.C. 1539 (Lexis 2006).
(188) Id. [section] 1539(a)(1)(B).
(190) Id. [section] 1539(a)(2)(a).
(191) Id. [section] 1539(a)(Z)(A)(i)-(iv).
(192) Id. [section] 1539(a)(2)(B)(i)-(v).
(195) U.S. FISH & WILDLIFE SERV., "No SURPRISES," QUESTIONS AND ANSWERS, available at http://endangered.fws.gov/hcp/NOSURPR.HTM (last visited Feb. 28, 2006).
(198) 50 C.F.R. [section] 13.21 (Lexis 2006); 50 C.F.R. [section] 17.22 (Lexis 2006).
(199) See generally U.S. FOREST SERVICE, SAFE HARBOR AGREEMENTS FOR PRIVATE LANDOWNERS, http://www.fws.gov/endangered/recovery/ harborqa.pdf#search='safe%20harbor%20agreement'.
(202) 50 C.F.R. [section] 17.32(c)(2) (Lexis 2006).
(203) Id.[section] 17.22(d).
(209) Exec. Order No. 13186, 3 C.F.R. 13186 (Jan. 10, 2001).
MAJOR LORI L. MAY & MAJOR JONATHAN P. PORIER
Major Lori L. May (B.S., Millikin University; M.P.A., University of Wyoming; J.D., University of Colorado; LL.M., Environmental Law, The George Washington University Law School) is the Litigation Branch Chief at the Air Force Environmental Law and Litigation Division in Rosslyn, Virginia. She is a member of the Colorado Bar. Major Jonathan P. Porier (B.S., USAF Academy; M.S., Lesley College; J.D., University of Colorado; LL.M., Environmental Law, The George Washington University Law School with highest honors) is the Air Force Environmental Law and Litigation Division's Liaison to the U.S. Department of Justice Environmental Defense Section. He is a member of the Colorado and Texas Bars. The authors would like to thank Mr. Jim Van Ness, Mr. Chris Carey, and Mr. Ronald Forcier for their review, comments, and inputs.