The wrong war, with the wrong enemy, at the wrong time: the coming battle over the Military Land Withdrawal Act and an experiment in privatizing the regulation of public lands.I. INTRODUCTION
The first major environmental and natural resource battle of the twenty-first century will likely be fought between environmentalists and the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. military. In 2001, more than seven million acres that have been withdrawn from federal landholdings and reserved for military use over the last fifty years will be up for "renewal," as required by the Military Land Withdrawal Act of 1986 (MLWA).(1) Congress must decide whether to grant the Department of Defense (DOD (1) (Dial On Demand) A feature that allows a device to automatically dial a telephone number. For example, an ISDN router with dial on demand will automatically dial up the ISP when it senses IP traffic destined for the Internet. ) continued rights to the lands, or some portion thereof, for training and weapons experimentation.(2) Alternatively, the lands may be returned to general federal jurisdiction and utilized for other public purposes.
Although the MLWA renewal process has yet to attract significant attention, it promises to be a legal, policy, and political war of serious proportions. Massive tracts of lands and natural habitat held by the military in the American West have been, by virtue of their status as largely restricted areas, left relatively pristine and unscathed by development.(3) Military land use has already come under sustained attack as environmental groups engage in the opening skirmishes of a struggle that they clearly hope will ultimately result in a dramatic realignment re·a·lign
tr.v. re·a·ligned, re·a·lign·ing, re·a·ligns
1. To put back into proper order or alignment.
2. To make new groupings of or working arrangements between. of control over these lands.(4)
Indeed, the lands are a tempting prize, and the possibility of a sea change in their use has never been more likely. The explosive growth of western states has produced a population that is encroaching ever closer to once isolated military reserves.(5) A variety of groups, including ranchers, miners, residents anxious for recreational activities, developers, and conservationists are all vying for an ever-diminishing slice of open lands.(6) The only thing these groups have in common is a belief that with the end of the Cold War the military no longer requires the land resources Noun 1. land resources - natural resources in the form of arable land
natural resource, natural resources - resources (actual and potential) supplied by nature it once did. It is a sentiment seemingly shared by Congress, which has revoked the virtual carte blanche CARTE BLANCHE. The signature of an individual or more, on a while. paper, with a sufficient space left above it to write a note or other writing.
2. In the course of business, it not unfrequently occurs that for the sake of convenience, signatures in blank are over requests for training areas the military once enjoyed.(7) Moreover, recent congressional debates over bills that would impose dramatic limitations on military land use clearly signaled that environmental forces will utilize the land renewal process of 2001 to press for more restrictive measures and strengthened congressional oversight Congressional Oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies. Congressional Research Service (CRS) Report for Congress
Congressional Oversight and regulation.(8) Some environmental activists profess pro·fess
v. pro·fessed, pro·fess·ing, pro·fess·es
1. To affirm openly; declare or claim: "a physics major to want a complete inventory of all military lands, with an eye toward stripping the military of control if no sufficient justification for continued withdrawal is forthcoming.(9)
For its part, the military argues that the end of the Cold War simply means that the nature of the security threat the nation faces has changed, rather than disappeared.(10) The Pentagon insists that the country maintain at least Cold War levels of access to public lands, citing the proliferation proliferation /pro·lif·er·a·tion/ (pro-lif?er-a´shun) the reproduction or multiplication of similar forms, especially of cells.prolif´erativeprolif´erous
n. of tasks the civilian leaders of the nation demand from the military and the increased space necessary to test and train troops in the use of high-tech weaponry.(11) The military steadfastly resists increased congressional control, arguing that flexibility and broad discretion over its lands are necessary in order to conduct training missions vital to maintain operational readiness The capability of a unit/formation, ship, weapon system, or equipment to perform the missions or functions for which it is organized or designed. May be used in a general sense or to express a level or degree of readiness. Also called OR. See also combat readiness. .(12)
This Article will argue that this impending im·pend
intr.v. im·pend·ed, im·pend·ing, im·pends
1. To be about to occur: Her retirement is impending.
2. conflict is likely to lead to bad law and incoherent environmental policy. Participation in this counterproductive coun·ter·pro·duc·tive
Tending to hinder rather than serve one's purpose: "Violation of the court order would be counterproductive" Philip H. Lee. legislative struggle would be an ineffective strategy for both environmentalists and the military. The environment, the military, and the national interest as a whole would be better served by the development of a new model of regulation for withdrawn military lands--one that emphasizes public participation and negotiation outside the traditional lawmaking law·mak·er
One who makes or enacts laws; a legislator. Also called lawgiver.
lawmak milieu mi·lieu
n. pl. mi·lieus or mi·lieux
1. The totality of one's surroundings; an environment.
2. The social setting of a mental patient.
[Fr.] surroundings, environment. . The end of the Cold War has made this solution possible by generating incentives within both the environmental camp and DoD that encourage each side to reach a consensus rather than leave their fortunes to the political maelstrom Maelstrom, whirlpool, Norway: see Moskenstraumen. of the legislative process.
Part II will briefly recount the history of military land withdrawals and the legal, political, and social legacy that has led to the Military Land Withdrawal Act. It will further describe the Act's requirements and offer an interpretation of land withdrawal history that highlights how the environmentalist environmentalist
a person with an interest and knowledge about the interaction of humans and animals with the environment. agenda has evolved from favoring a strong executive power of withdrawal and preservation of public lands to calling for limits on that authority and seeking intensive congressional regulation.
Part III will argue that for environmentalists and the military alike, the legislative fight over withdrawn lands is the wrong war, with the wrong enemy, at the wrong time. This is true for several compelling reasons. First, environmentalists and the armed forces are actually natural allies when it comes to natural resources issues. Second, the status quo [Latin, The existing state of things at any given date.] Status quo ante bellum means the state of things before the war. The status quo to be preserved by a preliminary injunction is the last actual, peaceable, uncontested status which preceded the pending controversy. regulatory mechanism for withdrawn lands--centered around the Bureau of Land Management (BLM BLM n abbr (US) (= Bureau of Land Management) → les domaines )--is largely ineffective. Third, it is clear that environmentalists have undervalued Undervalued
A stock or other security that is trading below its true value.
The difficulty is knowing what the "true" value actually is. Analysts will usually recommend an undervalued stock with a strong buy rating. the military's legitimate needs, and in fact, the nation's security demands that adequate training areas be available. Fourth, and most importantly Adv. 1. most importantly - above and beyond all other consideration; "above all, you must be independent"
above all, most especially , there exist within Congress several serious institutional and systemic problems that strongly suggest it will be difficult to develop comprehensive military land use plans that adequately reflect both security and environmental concerns. These factors all argue against the pursuit of a confrontation-oriented, legislative-based solution during the 2001 renewal process. Such a strategy is a high-stakes game that both sides may very well lose--along with the opportunity to create a new pragmatic paradigm for land use regulation.
Part IV will suggest that this new paradigm New Paradigm
In the investing world, a totally new way of doing things that has a huge effect on business.
The word "paradigm" is defined as a pattern or model, and it has been used in science to refer to a theoretical framework. should take the form of amendments to the MLWA that provide for "opt-out" negotiations between all parties concerned over the dispensation DISPENSATION. A relaxation of law for the benefit or advantage of an individual. In the United States, no power exists, except in the legislature, to dispense with law, and then it is not so much a dispensation as a change of the law. of each parcel of withdrawn military lands. Should the parties be able to reach an agreement--referred to here as a "Military Lands Agreement," or MLA--under the amendment's framework, the agreement would be directly implemented with no further administrative or congressional review. Both sides have much to gain and little to lose in reaching such a consensus on land uses for the military properties.
The looming debate over MLWA lands cuts to the heart of broader questions concerning western public lands and natural resource management. Who will get access to an ever-shrinking segment of what once seemed to be a limitless frontier? Equally important is who gets to decide. The renewal process offers an opportunity to explore those questions in a microcosm mi·cro·cosm
A small, representative system having analogies to a larger system in constitution, configuration, or development: "He sees the auto industry as a microcosm of the U.S. and provides an answer based on principles that emphasize decentralization de·cen·tral·ize
v. de·cen·tral·ized, de·cen·tral·iz·ing, de·cen·tral·iz·es
1. To distribute the administrative functions or powers of (a central authority) among several local authorities. and the importance of private expertise, rather than politics and traditional command-and-control regulation.
II. FROM ROOSEVELT TO REAGAN: THE SHIFTING POLICY AND POLITICS OF LAND WITHDRAWALS
The history of public land withdrawals in the United States is a story of dual conflicts--first, between those who would preserve the land in its natural state and those who would utilize it for settlement or exploit its natural resources;(13) and second, between Congress and the President.(14) A brief recapitulation recapitulation, theory, stated as the biogenetic law by E. H. Haeckel, that the embryological development of the individual repeats the stages in the evolutionary development of the species. of this history--with an emphasis on withdrawn military lands--and its social and political context serves to place the importance of the forthcoming military lands renewal process in perspective and is a necessary precedent to understanding the dangers of that process for environmentalists and the military alike.(15)
While Congress possesses overall authority under the Property Clause of the U.S. Constitution to determine the uses of public lands, the Executive Branch has traditionally exercised expansive powers in regulating and withdrawing publicly owned Publicly owned can refer to:
1. being born; just coming into existence.
2. just liberated from a chemical combination, and hence more reactive because uncombined. naturalist movement.(18) Prompted by pioneering conservationists such as John Muir and Gifford Pinchot Gifford Pinchot (August 11 1865 – October 4 1946) was the first Chief of the United States Forest Service (1905–1910) and the Republican Governor of Pennsylvania (1923–1927, 1931–1935). , a series of chief executives--most notably Theodore Roosevelt--used the Amendment to assemble the vast tracts of public lands that now make up the National Forest System.(19) From the very beginning, withdrawals were also made for military purposes.(20)
There has long been tension between Congress and the President over the scope and duration of these land withdrawals.(21) With the amount of open land available to Americans migrating out of eastern population centers into the western territories shrinking, miners, ranchers, lumber producers, and power companies all chafed chafe
v. chafed, chaf·ing, chafes
1. To wear away or irritate by rubbing.
2. To annoy; vex.
3. To warm by rubbing, as with the hands.
v.intr. under executive attempts to restrict their operations on publicly owned lands through withdrawal.(22) They complained that men like Pinchot, the head of the newly created Forest Service, "sit within their marble halls Marble Hall is a small town in Limpopo, South Africa. Christoffel Visagie, while on a hunting expedition, discovered a hole containing marble in 1913 and the area became known as "Marble Hole". and theorize the·o·rize
v. the·o·rized, the·o·riz·ing, the·o·riz·es
To formulate theories or a theory; speculate.
To propose a theory about. and dream about forests conserved," regardless of the impact on western economic interests(23)--complaints similar to those levied by the same groups a century later.(24) Despite such criticism, Roosevelt increased government land reserves by 45 million acres, including 16 million acres withdrawn or reserved by the "midnight proclamations" of March 1907, when the
nature-loving President signed an executive order preserving public lands.(25) Roosevelt acted only two days before a new law took effect barring the creation of forest reserves without Congress's approval.(26) This bold act ensured that the President's land withdrawal authority would be a quiet, overlooked power no more. Congress, prompted by powerful mining interests, soon struck back with further restrictions on the presidential prerogative An exclusive privilege. The special power or peculiar right possessed by an official by virtue of his or her office. In English Law, a discretionary power that exceeds and is unaffected by any other power; the special preeminence that the monarch has over and above all others, .
On its face, the Pickett Act of 1910(27) appeared to give the President a sweeping general withdrawal authority, enabling him to pick and choose which federal lands he wished to withdraw. However, the devil was in the details; presidential power was actually dramatically limited. The Pickett Act eliminated executive authority to protect lands from mining, which would quickly become a leading conservationist nemesis Nemesis (nĕm`ĭsĭs), in Greek religion and mythology, personification of the gods' retribution for violation of sacred law; the avenger. Sometimes she was said to be the goddess of good and ill fortune. .(28) Moreover, withdrawals under the Pickett Act were temporary, which subjected them to congressional reapproval.(29)
It is clear that at the beginning of the twentieth century, conservationists favored a broadly defined, even nebulous executive power to withdraw federal lands. They sought a powerful executive that shared their goals, thereby insulating themselves from the capriciousness of Congress, which was susceptible to the influence of well-heeled interests like the mining industry--as the Pickett Act demonstrated.(30) For a time, this conception of a powerful executive withdrawal authority worked to the environmentalists' advantage. The conservationist cause was facilitated by support from the Supreme Court, aided by a creative executive bureaucracy--which interpreted the Picket Act liberally to allow greater executive bureaucracy--, and, perhaps most importantly, supported by a sustained rush of social and political events that placed the debate over public lands on the back burner Noun 1. back burner - reduced priority; "dozens of cases were put on the back burner"
precedence, precedency, priority - status established in order of importance or urgency; "... .(31)
The tug-of-war between the executive and legislative branches lapsed LEGACY, LAPSED. A legacy is said to be lapsed or extinguished, when the legatee dies before the testator, or before the condition upon which the legacy is given has been performed, or before the time at which it is directed to vest in interest has arrived. Bac. Ab. Legacy, E; Com. Dig. from the 1920s through the 1940s.(32) Perhaps the Great Depression mooted competitive concerns over access to federal lands; few had the working capital to exploit their natural resources. The commencement of World War II may have served to subordinate most private interests, and many prerogatives delineated de·lin·e·ate
tr.v. de·lin·e·at·ed, de·lin·e·at·ing, de·lin·e·ates
1. To draw or trace the outline of; sketch out.
2. To represent pictorially; depict.
3. by the separation of powers separation of powers: see Constitution of the United States.
separation of powers
Division of the legislative, executive, and judicial functions of government among separate and independent bodies. , to that of the common good.(33) The advent of the Cold War in the 1950s, however, ultimately reignited conflict between the executive and legislative branches over public lands and resulted in a dramatic realignment of the forces involved.(34)
The Cold War, and its accompanying arms race, brought military uses of public lands to the forefront. Vast tracts of land were necessary for the development and testing of nuclear weapons.(35) The growing number of men under arms required training in a wide variety of conditions and terrain, which necessitated expansive set-asides of isolated western lands.(36) Similar lands were also needed to test and train troops in the use of the military's increasingly long-range missiles.(37) Military au-craft, which were soon flying in excess of the speed of sound, needed larger mounts of airspace in which to move and more land on which to test the ever-more-powerful bombs and missiles they sent rocketing earthward earth·ward
adv. & adj.
To or toward the earth.
earthwards adv. .(38) With the specter of international communism and a hot war on the Korean peninsula for support, the military had little trouble relying on the mantra mantra (măn`trə, mŭn–), in Hinduism and Buddhism, mystic words used in ritual and meditation. A mantra is believed to be the sound form of reality, having the power to bring into being the reality it represents. of "national security" to help it amass the millions of acres it wanted.(39) Withdrawals were increasingly used for military purposes, rather than for national parks This is a list of national parks ordered by nation. Africa
1. Abbr. HWM A mark indicating the highest level reached by a body of water.
2. The highest point, as of achievement; the apex. for land withdrawals.
By the late 1950s, however, Congress began to question the military's needs and to reassert reassert
1. to state or declare again
2. reassert oneself to become significant or noticeable again: reality had reasserted itself
Verb 1. its power over land withdrawals. In 1958, led by California Representative (later Senator) Claire Engle, Congress passed the Engle Act, which required all land withdrawals greater than 5000 acres to receive specific congressional approval.(40) The measure was targeted directly at the military.(41)
[W]hat this bill does, in effect, is to repeal the implied grant of power under which the Department of Defense for a great many years has undertaken to slice out without any restraint or restriction whatever--and really on their own say-so because nobody in these other agencies ever argues or disputes a matter of military necessity--and restore that power to the Congress where it belongs and where it is vested by the Constitution of the United States.(42)
In 1976, Congress went even further, passing the Federal Land Policy and Management Act Federal Land Policy Management Act, or FLPMA (Pub.L. 94-579), is a United States federal law that governs the way in which the public lands - those of the Bureau of Land Management and Forest Service - are managed. The law was enacted in 1976 by the 94th Congress. (FLPMA FLPMA Federal Land Policy and Management Act of 1976 ).(43) FLPMA was the culmination of the struggle between executive and legislative power over withdrawals. It purported to overturn United States v. Midwest Oil Co.,(44) a post-Pickett-Act case, and its doctrine of implied authority Implied Authority of Contract is a legal term. In contract law, it is the implied ability of an individual to make a legally binding contract on behalf of an organization, by way of uniform or interaction with the public on behalf of that organization. , which stated that by failing to object to a given presidential withdrawal, Congress had acquiesced to it.(45) In addition, it vigorously reasserted congressional power to "delineate the extent to which the Executive may withdraw lands without legislative action," and established complex procedures under which withdrawals must take place.(46) In addition to FLPMA, the decades of the 1960s and 1970s also witnessed the implementation of a host of "alphabet soup" environmental laws, including the National Environmental Policy Act (NEPA) and the Endangered Species Act The federal Endangered Species Act of 1973 (ESA) (16 U.S.C.A. §§ 1531 et seq.) was enacted to protect animal and plant species from extinction by preserving the ecosystems in which they survive and by providing programs for their conservation. (ESA 1. (architecture) ESA - Enterprise Systems Architecture.
2. (body) ESA - European Space Agency. ), which place further restrictions on the use--including use by the military--of public lands.(47)
It may be argued that concurrent with this gradual reassertion Re`as`ser´tion
n. 1. A second or renewed assertion of the same thing.
Noun 1. reassertion - renewed affirmation
reaffirmation of congressional authority, the conservationist movement was undergoing an incremental Additional or increased growth, bulk, quantity, number, or value; enlarged.
Incremental cost is additional or increased cost of an item or service apart from its actual cost. shift in philosophy and allegiance. The pressing issue for environmentalists was no longer the simple withdrawal and preservation of land, as growing western population centers made further large-scale set-asides on the model of those of the early twentieth century increasingly unlikely.(48) The emphasis was now on regulation rather than acquisition.(49) This change in focus manifested itself in the passage of the alphabet soup regulation and signaled the commencement of a new focus on legislation and an alliance with Congress, the branch charged with formulating such laws.(50)
At the same time, the presidency and the executive branch itself were being perceived as increasingly hostile to environmental interests. This was undoubtedly due in part to the political schism schism, in religion: see heresy; Schism, Great. of the 1960s and 1970s. While admittedly an oversimplification o·ver·sim·pli·fy
v. o·ver·sim·pli·fied, o·ver·sim·pli·fy·ing, o·ver·sim·pli·fies
To simplify to the point of causing misrepresentation, misconception, or error.
v.intr. , it may be said that in general the proenvironment forces tended to be young and liberal, first viewing themselves in direct opposition to the Vietnam War Opposition to U.S. involvement in the Vietnam War began slowly and in small numbers in 1964 on various college campuses in the United States. This happened during a time of unprecedented student activism reinforced in numbers by the demographically significant baby boomers, but and later in opposition to the presidency of Ronald Reagan, who environmentalists believed was not predisposed pre·dis·pose
v. pre·dis·posed, pre·dis·pos·ing, pre·dis·pos·es
a. To make (someone) inclined to something in advance: to facilitate the environmental agenda.(51) Indeed, the conservative, laissez-faire economic philosophy of the Reagan presidency, which was viewed with great hostility by environmental forces, helped cleave cleat, cleave
claw of any cloven-footed animal. the environmental movement further away from the executive branch.(52) By the time the Reagan administration Noun 1. Reagan administration - the executive under President Reagan
executive - persons who administer the law attempted to terminate the protective status and cancel withdrawals on more than 170,000,000 acres of public lands to open them up to mining, oil exploration, and other intrusive public uses, the transition was complete.(53) Today mainstream environmental groups proclaim that "only Congress can function as an appropriate `check and balance' on the military" and military land uses.(54)
As the environmentalist ethos increased in popularity, Congress began to focus on land use issues involving the military. While the Engle Act appeared in 1958, it was not until 1986 that it was given teeth. That year, Congress passed the Military Lands Withdrawal Act, reconciling the requirements of FLPMA and the Engle Act as applied to withdrawn military lands.(55) It serves as a blueprint for managing six major military areas and as a model for handling all large military land withdrawals in the future, as well as establishing procedures for withdrawal renewals.(56)
The MLWA specifies the general military uses to which each of the six areas withdrawn and reserved by the executive branch for military use since the end of World War II--may be put.(57) The MLWA requires these lands to be used for other military purposes only after BLM is notified and reporting requirements are fulfilled.(58) In fact, the MLWA requires extensive BLM involvement and control, mandating that the Bureau manage the lands under the provisions of FLPMA and all relevant environmental statutes to further the use of the lands for grazing grazing,
n See irregular feeding.
1. actions of herbivorous animals eating growing pasture or cereal crop.
2. area of pasture or cereal crop to be used as standing feed. See also pasture. , protection of wildlife and wildlife habitat, control of predatory and other animals, recreation, and suppression of brush and range fires.(59) While all nonmilitary activities are ultimately subject to military veto, the MLWA instructs the military to cooperate with BLM in developing a management plan for the withdrawn lands and to enter into a memorandum of understanding A Memorandum of Understanding (MoU) is a legal document describing a bilateral or multilateral agreement between parties. It expresses a convergence of will between the parties, indicating an intended common line of action and may not imply a legal commitment. with BLM to implement the plan.(60) Significantly, the MLWA requires that the withdrawn lands be reviewed every five years, with an eye toward determining which areas, if any, could be opened for mining and mineral exploitation.(61)
The MLWA was made effective for fifteen years, and the withdrawn status of the lands it covers expires in 2001.(62) The law required the military to notify the Department of Interior by 1998 if it wished to petition for the renewal of withdrawn status for the lands, which it has recently done.(63) BLM is tasked with processing and overseeing the renewal requests, which must include a detailed summary and assessment of the military uses of the lands and an environmental impact statement detailing the effect of those uses.(64) The entire matter is then reviewed and debated by Congress and its relevant committees and subcommittees.(65) As a result, Congress may accept all or part of the recommendation from BLM and the military, or may craft its own land use allocations. The outcome is completely dependent on the political process, and it is at this point that pressure by environmentalists and other concerned groups may be brought to bear.
Subsequent to passage of the MLWA, numerous attempts have been made further to limit military control over the fifteen million acres of withdrawn federal lands that are under DoD supervision.(66) Crafted by environmental groups and sympathetic members of Congress, an increasing amount of legislation has been proposed to reduce military acreage, subject lands to greater civilian control, or dramatically reduce the traditional flexibility the military has enjoyed in designing uses for the land.(67) Perhaps the most significant of this proposed legislation appeared in 1994 when Congress debated twin measures--The Military Land Reform Reassessment Reassessment
The process of re-determining the value of property or land for tax purposes.
Property is usually reassessed on an annual basis. You may request a "reassessment" if you disagree with your assessment. Act and The Natural Resource Management on Military Lands Act.(68) Together these measures would have given any citizen the right to initiate an Interior Department investigation into an alleged violation of environmental laws on military lands, potentially resulting in a notice of violation.(69) These measures also granted the Interior Department a veto power over integrated natural resource management plans designed by the military.(70) In addition, the measures would have subjected nearly every request by the military for temporary use of airspace above federal lands to lengthy congressional review.(71)
The foregoing minihistory may be summed up thusly thus·ly
adv. Usage Problem
Usage Note: Thusly was introduced in the 19th century as an alternative to thus in sentences such as Hold it thus or He put it thus. : land withdrawals began at the prompting of environmentalists exercising influence over the executive branch, acting in opposition to other special interests wielding wield
tr.v. wield·ed, wield·ing, wields
1. To handle (a weapon or tool, for example) with skill and ease.
2. To exercise (authority or influence, for example) effectively. See Synonyms at handle. influence in Congress. Shifting environmental objectives, combined with altered political and social forces, resulted in the destruction of these original alliances. The current scene now features a Congress acting to curb withdrawals with the general support of environmentalists.(72) Meanwhile, the executive branch, with the military services in the forefront, struggles to maintain autonomy and freedom from excessive congressional control; a struggle it appears to have lost in the case of the MLWA.
The significance of the current alignment of interests, which as the foregoing illustrates is a relatively new phenomenon, is more complex than meets the eye. In fact, the MLWA and the upcoming battle over military lands renewal demonstrates that neither environmental interests nor military needs are being served by the present legal regime, which is characterized by legislative conflict and control. Simply put, environmentalists may soon find their congressional-based strategy is counterproductive to their goals, as well as the national interest. Analysis of a variety of factors, including the institutional importance of executive power and flexibility to conduct land withdrawals, the military's record on land use issues, the severe deficiencies in BLM's supervisory record, the nation's evolving national security needs, and the inherent flaws in the upcoming congressional military land use regulation process, all clearly point to this conclusion.
III. THE WRONG WAR, WITH THE WRONG ENEMY, AT THE WRONG TIME
As a threshold matter, and as Part II indicates, opposition to executive land withdrawals, and support for relatively frequent renewals and intensive congressional regulation of those withdrawn lands, be they military or not, is directly counter to the traditional position taken by environmentalists. "Preservationists and conservationists ha[ve] long believed that a vigorous executive withdrawal authority is essential to protection of land and resources from excessive development."(73) An emphasis on granting the executive branch flexibility in making withdrawals and the ability to preserve the set-asides for long periods were deemed desirable, indeed vital, to protect wildlife and recreation resources.(74) In the past it has been traditional environmentalist enemies, such as the mining industry, that lobbied for stringent congressional limits on withdrawal authority.(75)
It is far from self-evident that times have changed so dramatically that it is now in the interests of environmentalists to completely turn their backs on this tradition and cast their lot with legislators. In 1996, President Clinton established the Grand Staircase-Escalante National Monument Grand Staircase-Escalante National Monument: see National Parks and Monuments (table). , a vast expanse of 1.7 million acres in Utah.(76) He did so by presidential proclamation, drawing on his authority under the Antiquities Act, a power analytically indistinct in·dis·tinct
1. Not clearly or sharply delineated: an indistinct pattern; indistinct shapes in the gloom.
2. Faint; dim: indistinct stars.
3. from that used by the President to reserve lands for other purposes, including those military.(77) The mechanism of executive land withdrawals has proven invaluable to the environmental cause, enabling the unilateral executive preservation of lands that could never have garnered similar protection if matters were left to the political cauldron of Congress. The furor furor /fu·ror/ (fu´ror) fury; rage.
furor epilep´ticus an attack of intense anger occurring in epilepsy. surrounding the Utah reservation made this fact abundantly clear.(78) The question then arises: how much damage do environmentalists really wish to do to the institution of executive land withdrawals?(79) It is at least unclear whether the continued erosion of presidential prerogative in this area is good for the long-term interests of the environmental agenda, especially when it involves environmentalists in alliances with interest groups such as miners and ranchers whose activities have traditionally been viewed as highly destructive to the environment.(80)
In any event, there are several other important reasons to question whether environmentalist opposition to military land stewardship and the pursuit of stringent congressional oversight makes for wise strategy, coherent policy, or good law.
A. The Military's Record on Land Use
First, it is clear that the military is actually a reasonably good partner in environmentally conscious land management, as measured both comparatively and by an absolute standard. A Rand Corporation Rand Corporation, research institution in Santa Monica, Calif.; founded 1948 and supported by federal, state, and local governments, as well as by foundations and corporations. Its principal fields of research are national security and public welfare. study found that the military has far less impact on the environment than ranching or timber harvesting, uses to which much of the federal land under the military's control would undoubtedly be put in the absence of a military presence.(81) In fact, the study concluded that the military can be the most environmentally conscious of all federal landowners.(82) Since 1872, when the War Department was entrusted by Congress with protecting perhaps the country's most precious national park, Yellowstone, the military has been influential in helping to preserve huge tracts of American wilderness.(83)
The military aids in the preservation of public lands in ways both active and passive by taking affirmative propreservation measures and by simply holding its vast land properties secure from alternative uses. There are numerous examples of the armed services The Constitution authorizes Congress to raise, support, and regulate armed services for the national defense. The President of the United States is commander in chief of all the branches of the services and has ultimate control over most military matters. acting to preserve the lands under their supervision. One widely noted success story is the Army's Integrated Training Area Management Program (ITAM ITAM Instituto Tecnológico Autonomo de Mexico
ITAM Instituto Tecnológico Autónomo de México
ITAM Immunoreceptor Tyrosine–based Activation Motif
ITAM Information Technology Asset Management
ITAM Integrated Training Area Management (Program) ), which develops restoration and preservation programs and educates military users about environmental issues.(84) Also successful have been the military's efforts to restore the Longleaf Pine ecosystem in the southeastern United States, aimed at nurturing the endangered en·dan·ger
tr.v. en·dan·gered, en·dan·ger·ing, en·dan·gers
1. To expose to harm or danger; imperil.
2. To threaten with extinction. red cockaded cock·ade
An ornament, such as a rosette or knot of ribbon, usually worn on the hat as a badge.
[Alteration of obsolete cockard, from French cocarde, from Old French coquarde woodpecker woodpecker, common name for members of the Picidae, a large family of climbing birds found in most parts of the world. Woodpeckers typically have sharp, chisellike bills for pecking holes in tree trunks, and long, barbed, extensible tongues with which they impale .(85) In fact, the Army has made a commitment to be a "national leader" in conservation.(86) For its part, the Navy has taken dramatic and expensive steps to protect sea life and to minimize the effect of military operations This is a list of missions, operations, and projects. Missions in support of other missions are not listed independently. World War I
''See also List of military engagements of World War I
Nor should the significant environmental benefits of public lands being classified as military possessions be overlooked.(88) While it may seem incongruous in·con·gru·ous
1. Lacking in harmony; incompatible: a joke that was incongruous with polite conversation.
2. to suggest that a bombing range A bombing range is an area used for testing explosive ordnance and practicing to accurately direct them to the target. Bombing ranges are used for munitions that either explode or produce too much destruction to use at a shooting range, such as kinetic energy penetrators or very could be considered "protected" in any meaningful sense, the fact is that most of the military's lands are utilized little, if at all.(89) Millions of acres remain pristine and largely undisturbed un·dis·turbed
Not disturbed; calm.
1. quiet and peaceful: an undisturbed village
2. , as the expansive size of military installations are often dictated by security and safety requirements rather than a need to tromp tromp
v. tromped, tromp·ing, tromps Informal
1. To walk heavily and noisily; tramp.
2. upon or bomb every acre.(90) For instance, the Marine Corps base at Camp Pendleton, California, in addition to being the breeding ground for many at-risk species, contains the last remaining natural coastal environment in Southern California Southern California, also colloquially known as SoCal, is the southern portion of the U.S. state of California. Centered on the cities of Los Angeles and San Diego, Southern California is home to nearly 24 million people and is the nation's second most populated region, and is "the last major redoubt re·doubt
1. A small, often temporary defensive fortification.
2. A reinforcing earthwork or breastwork within a permanent rampart.
3. A protected place of refuge or defense. against the development that threatens to make Southern California one big tract of suburban homes from the Mexican border to Santa Barbara Santa Barbara (săn'tə bär`brə, –bərə), city (1990 pop. 85,571), seat of Santa Barbara co., S Calif., on the Pacific Ocean; inc. 1850. ."(91) It is not difficult to imagine the residential and commercial development that would have long ago engulfed this stretch of coastline had the property not been in military hands. Similar claims can be made about other military landholdings, many of which would have undoubtedly been utilized for mining, perhaps the most invasive and destructive of all land uses.(92) In fact, the MLWA requires that BLM make rules and procedures allowing mining operations on land no longer being used by military.(93)
It is true that the military does have a history of environmental abuses.(94) But on that score it is no different than legions of corporations that, afflicted af·flict
tr.v. af·flict·ed, af·flict·ing, af·flicts
To inflict grievous physical or mental suffering on.
[Middle English afflighten, from afflight, by a combination of carelessness and ignorance that was often fostered by the imperfect knowledge available at the time, allowed spillage and the improper disposal of various toxic substances.(95) The "new" military, however, is highly sensitive Adj. 1. highly sensitive - readily affected by various agents; "a highly sensitive explosive is easily exploded by a shock"; "a sensitive colloid is readily coagulated" to environmental concerns, and covets the public relations public relations, activities and policies used to create public interest in a person, idea, product, institution, or business establishment. By its nature, public relations is devoted to serving particular interests by presenting them to the public in the most value of being perceived as environmentally sensitive.(96) Indeed, even within the existing process surrounding the MLWA, the Department of Defense (DOD) has shown a willingness to make substantial environmental concessions.(97) In short, rather than an environmental enemy, the military has demonstrated that it can be a valuable ally.
B. The Failure of BLM Management
Second, it has become starkly apparent that the current system of land management, directed by BLM, is falling to achieve environmentalist goals. Two 1994 General Accounting Office (GAO) reports found a generally low level of cooperation between BLM, which is the primary agency charged with managing withdrawn lands in partnership with the military, and DoD.(98) GAO reported that "DoD and Interior are not fully cooperating to implement resource management plans" as required by the MLWA.(99) No comprehensive information about resource conditions at any of the six withdrawn military sites had been compiled--a task mandated by NEPA--because it was deemed too costly or a low priority.(100) BLM officials reported that they allocated fewer resources to managing military lands than other public lands because of what they perceived to be military obstructionism ob·struc·tion·ist
One who systematically blocks or interrupts a process, especially one who attempts to impede passage of legislation by the use of delaying tactics, such as a filibuster. .(101) This led GAO to conclude that "[m]ilitary officials may not want to share authority with the Bureau or support additional Bureau activities because of concerns that the Bureau's plans could restrict future military training activities."(102)
GAO's conclusion is likely the correct one: the military often resists active nonmilitary management of withdrawn lands primarily because it is concerned about losing flexibility and access; it worries that allowances granted today will hamstring decisions tomorrow.(103) In addition, there are institutional drawbacks to tasking BLM with the management of military lands.
As commentators have noted, "it is hard to imagine any two federal agencies as fundamentally different ... as a military service ... and the BLM."(104) First, while the military is a centralized cen·tral·ize
v. cen·tral·ized, cen·tral·iz·ing, cen·tral·iz·es
1. To draw into or toward a center; consolidate.
2. entity with one clear mission to defend the nation and its interests, BLM is a decentralized de·cen·tral·ize
v. de·cen·tral·ized, de·cen·tral·iz·ing, de·cen·tral·iz·es
1. To distribute the administrative functions or powers of (a central authority) among several local authorities. agency in which branch offices exert considerable influence and power.(105) As one observer notes:
[BLM's] state and local offices carry considerable independence within the agency because of the diversity of the BLM customer base. The BLM must constantly balance fiercely competing interests for any particular resource, which is exactly the opposite of the military's singleness of purpose. BLM officials... cultivate local followings as well. Ranchers who graze their cattle on BLM administered lands become, in effect, clients of the BLM.(106)
Second, as the previous passage suggests, BLM is tasked with balancing the widest possible range of interests,(107) The multiple use mandate imposed on BLM by the Federal Land Policy and Management Act--which directs the Bureau to be solicitous so·lic·i·tous
a. Anxious or concerned: a solicitous parent.
b. Expressing care or concern: made solicitous inquiries about our family. of the land users but also to take decisive action to improve the lands if they are deteriorating--creates a form of institutional schizophrenia.(108) "The BLM must thus tread a sensitive tightrope in ... regulating public land use."(109)
Its allegiance to local interests and multiplicity of commitments makes BLM an awkward broker for environmental interests.(110) The number of interests and issues BLM must balance ensures that environmental concerns constitute only one among many considerations and are not assured preeminence pre·em·i·nent or pre-em·i·nent
Superior to or notable above all others; outstanding. See Synonyms at dominant, noted.
[Middle English, from Latin prae . The Bureau's position on any given issue is also skewed skewed
curve of a usually unimodal distribution with one tail drawn out more than the other and the median will lie above or below the mean.
skewed Epidemiology adjective Referring to an asymmetrical distribution of a population or of data by the formal and informal local alliances--with whatever groups are most powerful in a particular area--made by its branch offices.(111) For instance, its long-term relationships with these "clients" may distort the Bureau's approach to a particular land use matter, because such relationships generate their own political concerns. After all, BLM will be a "repeat player" with these clients and may hesitate to make proenvironmental decisions that alienate To voluntarily convey or transfer title to real property by gift, disposition by will or the laws of Descent and Distribution, or by sale.
For example, a seller may alienate property by transferring to a buyer a parcel of the seller's land containing a house, in the dominant client--in the MLWA context, for instance, those clients are likely to be western ranchers--near a given parcel of military lands.
Whatever the cause, be it military obstructionism based on the desire to preserve future flexibility or a systemic failure to prioritize pri·or·i·tize
v. pri·or·i·tized, pri·or·i·tiz·ing, pri·or·i·tiz·es Usage Problem
To arrange or deal with in order of importance.
v.intr. environmental concerns, needed environmental supervision and management are not being accomplished on military lands. That in itself should be enough to prompt environmentalists to seek solutions other than congressional edicts that ultimately rely on BLM for their execution.
C. National Security Considerations
Third, it is clear that in their eagerness to restrict military lands, environmentalist leaders have fundamentally misapprehended the pressing nature of the nation's need for testing and training grounds.(112) All credible evidence indicates that the end of the Cold War and the ever-increasing number of missions imposed on the military by political leaders have actually increased the amount of land necessary to meet readiness standards.(113)
High technology weapons systems simply require a larger training area than older weapons.(114) Modern jet fighters Jet fighter may refer to:
Of, relating to, or characteristic of ships, shipping, sailors, or navigation on a body of water.
[From Latin nauticus, from Greek nautikos, from miles.(116) Stand-off weapons, such as long-range missiles, which in combat help limit exposure of Americans to hostile fire In insurance law, a combustion that cannot be controlled, that escapes from where it was initially set and confined, or one that was not intended to exist.
A hostile fire differs from a friendly fire, which burns in a place where it was intended to burn, such as one confined and minimize the overall loss of life because of their precision targeting, must by very definition be tested by firing at targets over the horizon, a great distance away.(117) The wide variety of tasks now assigned to the military also require changes in military training. So-called "peacekeeping," humanitarian efforts, limited warfare designed to achieve specific political results rather than total victory, each require new and different tools as well as dramatically different procedures and tactics than old-style conventional warfare Conventional warfare is a form of warfare conducted by using conventional military weapons and battlefield tactics between two or more states in open confrontation. The forces on each side are well-defined, and fight using weapons that primarily target the opposing army. .(118) To perform these new roles, the troops must be trained and the tools of their trade tested.(119) In order to maintain credibility with the public, achieve its core goals, and act for the benefit of the nation, it is necessary that environmental leaders recognize that "national interest" cannot be defined so narrowly that it only includes environmental concerns. It also includes military preparedness.
Defined thusly, even if environmentalists were to triumph and radically reduce military land use, the victory would be of the Pyrrhic pyr·rhic
A metrical foot having two short or unaccented syllables.
Of or characterized by pyrrhics.
[Latin pyrrhicius, from Greek purrikhios, from variety. A sober, dispassionate dis·pas·sion·ate
Devoid of or unaffected by passion, emotion, or bias. See Synonyms at fair1.
dis·pas assessment of military requirements therefore indicates that rather than legislative warfare, a more appropriate environmental strategy would be to work with the military to reduce land use problems and obtain needed concessions.
D. The Dangerous and Inefficient Congressional Battlefield
Fourth, and most importantly, the battlefield upon which the upcoming legal and policy war is to take place, the floor and hearing rooms of Congress, presents profound disadvantages for environmentalists and the military alike. Congress makes an especially poor and inefficient referee in this dispute.(120) Chronic problems with the pluralistic plu·ral·is·tic
1. Of or relating to social or philosophical pluralism.
2. Having multiple aspects or parts: "the idea that intelligence is a pluralistic quality that ... nature of the legislative process are highlighted and exacerbated by the highly technical challenges posed by the nexus of military requirements and environmental concerns.
It is hardly a stunning insight that Congress is a political institution, and ,as a natural result political considerations tend to take precedence over matters of military requirement.(121) The controversy over the closing of military bases, and Congress's inability to resolve it, is perhaps the paradigmatic See paradigm. example of this phenomenon.(122) So too, the pernicious pernicious /per·ni·cious/ (per-nish´us) tending toward a fatal issue.
Tending to cause death or serious injury; deadly. dominance of politics over the military's technical requirements is reflected in the fact that Congress has traditionally been prone to providing the armed services with what it says it does not want, while depriving it of what it claims to desperately need.(123) The proliferation of military installations and means of production Means Of Production is a compilation of Aim's early 12" and EP releases, recorded between 1995 and 1998. Track listing
A congressman or congresswoman. will attempt to further the interest of the military project or entity that aids his district's voters, with the result being that political necessity, rather than military needs, often carries the day.(124)
There is no reason to believe that Congress's decisions regarding military land use under the MLWA will be any more responsive to actual military and national security needs. Indeed, the legislation proposed in recent years suggests that several of the military's key training requirements will be in jeopardy when Congress considers land renewals.(125) For example, as discussed above in reference to the failings of BLM land management, the military places a high value on flexibility.(126) As a result, it fears congressional micromanagement This is about the management style. For the computer game strategy, see Micromanagement (computer gaming).
In business management, micromanagement is a management style where a manager closely observes or controls the work of their employees, generally used as a pejorative term. , which can impose rigid constraints that limit its ability to alter training and land use as circumstances dictate.(127) Yet Congress narrowly defeated legislation in 1994 that would have prohibited even one-day permits that allow the military to expand overflights of federal land.(128) Instead, requests for such temporary permits would have been subject to 180 day waiting periods and Congress's approval.(129) It is a good bet that whatever the overall outcome of congressional review of the MLWA renewal process, the resulting legislation will similarly increase the complexity, expense, and time necessary for the military to utilize its withdrawn lands.
One might expect the reflexive (theory) reflexive - A relation R is reflexive if, for all x, x R x.
Equivalence relations, pre-orders, partial orders and total orders are all reflexive. environmentalist response to this prospect to be positive. However, military land use decisions made in a highly charged political environment are likely to be less than optimal from an environmentalist point of view. Where individual congressional members are seeking to position themselves favorably with powerful constituencies, decisions are apt to revolve around Verb 1. revolve around - center upon; "Her entire attention centered on her children"; "Our day revolved around our work"
center, center on, concentrate on, focus on, revolve about individual, highly-visible, "hot button" issues while neglecting more comprehensive solutions.(130) Superficial outcomes, keyed to symbols and image, with visible sops to both sides--but with an absence of coordinated planning necessary to protect both the environment and military function--are likely to be the result.
To illustrate, it is useful to consider the example of Otero Mesa Otero Mesa is a 1.2 million acre (4,900 km²) area in the south of New Mexico. In 2005, the Bureau of Land Management approved the area for exploratory drilling for oil and gas, but that approval is currently being litigated by the state of New Mexico and environmental groups who . A picturesque, wildlife-rich area southeast of Almogordo, New Mexico New Mexico, state in the SW United States. At its northwestern corner are the so-called Four Corners, where Colorado, New Mexico, Arizona, and Utah meet at right angles; New Mexico is also bordered by Oklahoma (NE), Texas (E, S), and Mexico (S). , Otero Mesa is part of the McGregor Range, one of the lands subject to the MLWA.(131) It is a military area popular with hunters and ranchers, as well as environmentalists who prize the presence on the Mesa of falcons and other rare species indigenous to the area.(132) The Air Force, however, wishes to expand its active bombing range into Otero--which to date has served only as a buffer zone buffer zone
A neutral area between hostile or belligerent forces that serves to prevent conflict.
Noun 1. buffer zone around the actual operational area.(133) The ability of environmental forces to mobilize support for such a compelling location during the congressional review and debate that is part of the land-renewal process may ensure that such areas receive protection from military encroachment An illegal intrusion in a highway or navigable river, with or without obstruction. An encroachment upon a street or highway is a fixture, such as a wall or fence, which illegally intrudes into or invades the highway or encloses a portion of it, diminishing its width or area, but . However, less visible, less emotionally salable sal·a·ble also sale·a·ble
Offered or suitable for sale; marketable.
sala·bil areas that are no less environmentally important--or are perhaps even more important--are disadvantaged in the political process. The problem is similar to that faced in endangered species endangered species, any plant or animal species whose ability to survive and reproduce has been jeopardized by human activities. In 1999 the U.S. government, in accordance with the U.S. protection, where consensus to protect a "fuzzy" or "cute" species, such as the baby seal, is easy to achieve, while protections for less photogenic photogenic /pho·to·gen·ic/ (-jen´ik)
1. produced by light, as photogenic epilepsy.
2. producing or emitting light.
1. life forms--an at-risk bug or worm, for instance--simply languish.(134) Indeed, because the essence of politics is bargaining, the less visible lands and use issues are far more likely to be sacrificed in the tit-for-tat tit-for-tat
done in return or retaliation for a similar act: a spate of tit-for-tat killings [earlier tip for tap] of the political process--that is, "you've got Otero, but we give the military everything else."(135) In sum, environmentalists, while perhaps obtaining limited victories in places like Otero Mesa, may FIND the triumph symbolic, as the broader front is sacrificed. Protecting one small area, or even a series of areas, is of dubious value if an overall coordinated plan for vast tracts, especially the largely unspoiled ones at issue, is neglected.(136)
Such an outcome would be detrimental to the military as well, because it indiscriminately fails to take into account readiness and training needs. Even if use of Otero Mesa is vital to the Air Force mission, such considerations lack muscle when placed against the powerful, emotion-driven rhetoric that compelling environmental issues can conjure con·jure
v. con·jured, con·jur·ing, con·jures
a. To summon (a devil or spirit) by magical or supernatural power.
b. .(137) Moreover, while DoD may be willing to grant environmental concessions in places like Otero Mesa and other areas of the base in order to obtain limited access to the Otero area, such bargaining may be precluded by the absolutist positions fostered by the political process.(138)
Simply put, the evidence suggests that Congress does not act efficiently when it comes to controversial military requirements, and it is unlikely to do so when environmental concerns are thrown into the mix.(139) For instance, a 1994 bill called for an automatic reverter of withdrawn military lands to the Interior Department if the lands were no longer needed for military purposes--an apparent victory for environmental forces.(140) Yet such a reverter would have required the Interior Department to accept lands contaminated contaminated,
v 1. made radioactive by the addition of small quantities of radioactive material.
2. made contaminated by adding infective or radiographic materials.
3. an infective surface or object. with toxic wastes toxic waste is waste material, often in chemical form, that can cause death or injury to living creatures. It usually is the product of industry or commerce, but comes also from residential use, agriculture, the military, medical facilities, radioactive sources, and , instead of first mandating DoD cleanup.(141) Rather than providing a windfall to conservation interests, this rush to revert lands to civilian control would have saddled the Interior Department with potentially millions in cleanup costs that rightfully should be provided by DoD.(142) This proenvironment measure, while facially appealing, was in fact nothing of the kind.
Complicating these systemic and institutional difficulties is the relative weakness of both parties in the modern congressional arena, which creates grave uncertainty on the part of both groups as to whether they can win in the legislative process.(143) Paradoxically, however, it is this weakness that creates the possibility for an extralegislative solution to the dispute over military lands.
The fact is that the military has a serious public relations and credibility problem. While stepped-up communications efforts aimed at convincing the public of the continued worthiness of its efforts may have an impact, an entirely new paradigm of military lands management will ultimately be necessary.(144) This may be an unpalatable tonic for military leaders who sincerely believe that space and resource levels at least equal to Cold War levels are required to maintain operational readiness. But the political handwriting is on the wall; the American people An American people may be:
hold close, hold tight, clutch
hold, take hold - have or hold in one's hands or grip; "Hold this bowl for a moment, please"; "A crazy idea took hold of old rhetoric and rely on congressional allies to ultimately safeguard military interests risks underestimating the threat.(149) Indeed, as discussed above, several serious attempts have been made to impose severe limitations on military land use.(150) The power and popularity of the environmental forces and agenda combined with eroding congressional support and a policy of military intransigence in·tran·si·gent also in·tran·si·geant
Refusing to moderate a position, especially an extreme position; uncompromising.
[French intransigeant, from Spanish intransigente : entails the very real danger of a political debacle for the military, with the accompanying endangerment of national security.(151)
For their part, despite increased popularity, environmentalists continue to have difficulty advancing their agenda in Congress.(152) Environmental causes have not yet achieved controlling force by becoming, in the words of Vice-President Gore, the "organizing principle of civilization."(153) The failure of key environmental programs, such as the Global Warming global warming, the gradual increase of the temperature of the earth's lower atmosphere as a result of the increase in greenhouse gases since the Industrial Revolution. Treaty, which was dead on arrival in the Senate, is vivid evidence of this.(154) Weakness in the congressional forum is exacerbated by the blinders blind·er
1. blinders A pair of leather flaps attached to a horse's bridle to curtail side vision. Also called blinkers.
2. Something that serves to obscure clear perception and discernment. that too often limit the environmentalist public policy vision to matters involving toxic substances and endangered species and habitats.(155) The world is a dangerous place, and many of the nations and rogue leaders who make it so are also the most potent enemies of the environment.(156) Yet the traditional environmentalist antipathy to the military establishment persists.(157) Rigid insistence on destruction of key elements of readiness and components of effective training risks marginalizing the environmental movement: and mortgaging the popularity it has obtained. So too, extreme agendas, like those some environmentalists have so far brought to bear on military land use issues, have little hope of congressional success.
In sum, the military's influence with the public and in Congress has decreased, while the popularity and political muscle of environmentalists has increased, but not sufficiently for environmental forces to assert legislative dominance. The net result is that the two groups are closer to equipoise equipoise Medical ethics A state of uncertainty regarding the pros or cons of either therapeutic arm in a clinical trial in terms of congressional power and prospects than ever before. As a consequence, neither has enough strength to ensure the defeat of the other. Either might win, but either might lose, too. Most probably, both face the prospect of a congressionally imposed solution that fails to address their key concerns. However, in this mutual uncertainty lies intriguing and promising possibilities. For the first time, the altered political dynamic created by the end of the Cold War and the growth of public concern over the environment gives both sides a powerful incentive to find an alternate path; a new legal regime that offers a more efficient solution than the political process can provide.
IV. A NEGOTIATED PEACE: AN EXPERIMENT IN PRIVATIZING THE PUBLIC LANDS REGULATORY FUNCTION
A. The Outlines of a "Military Land Agreement"
Such a solution could result from the amendment of the Military Lands Withdrawal Act to provide for "opt-out" negotiations directly between the military, environmentalists, and other concerned parties.(158) Should these negotiations bear fruit in the form of a comprehensive agreement on a land use package for withdrawn military lands that is in accord with the requirements of the relevant federal statutes, the congressional renewal process as specified in the MLWA would be aborted a·bort
v. a·bort·ed, a·bort·ing, a·borts
1. To give birth prematurely or before term; miscarry.
2. To cease growth before full development or maturation.
3. and the agreement given full legal effect.(159) What might such an amendment, which would essentially privatize pri·va·tize
tr.v. pri·va·tized, pri·va·tiz·ing, pri·va·tiz·es
To change (an industry or business, for example) from governmental or public ownership or control to private enterprise: "The strike ... part of the regulatory function of the Interior Department, Bureau of Land Management, and Congress over withdrawn military lands, look like?
First, negotiations under the amendment should be modeled, at least in spirit if not in detail, on Habitat Conservation To conserve habitat life for wild species and prevent their extinction or reduction in range is a priority of a great many groups that cannot be easily characterized in terms of any one ideology. Plans (HCPs) implemented under the Endangered Species Act (ESA).(160) In 1982, the ESA was amended to provide for a flexible way of accommodating private landowners who wished to develop their property, while fulfilling the ESA's mandate to conserve and protect endangered species and their ecosystems.(161) While the following description is tremendously simplified, in essence the amendments outline an exception to the ESA's prohibition on the "taking" of endangered species.(162) The Secretary of the Interior may allow a private property owner to utilize his land in a fashion that will result in the taking of an endangered species, if the taking is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."(163) To take advantage of this exception, however, the landowner must first develop and submit a "conservation plan," or HCP HCP,
n healthcare provider, a professional who specializes in treating and managing a person's general or specific health needs. , which spells out a strategy for minimizing and mitigating the impact of the land development on the endangered or threatened species that lives or depends on the property.(164) The plan must also include information relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc the impact of the taking and alternatives that may be available, as well as reasons why the landowner rejects those alternatives.(165) The plan development process is subject to public review and comment.(166)
In exchange for developing and submitting an HCP and taking resulting steps to minimize damage to endangered or threatened species, the landowner achieves long-term security.(167) A "no surprises" provision protects landowners by guaranteeing that they will not be required to take additional steps or expend ex·pend
tr.v. ex·pend·ed, ex·pend·ing, ex·pends
1. To lay out; spend: expending tax revenues on government operations. See Synonyms at spend.
2. more resources to aid species on their lands, even if the needs of the species change over time.(168) So too, a "safe harbor Safe Harbor
1. A legal provision to reduce or eliminate liability as long as good faith is demonstrated.
2. A form of shark repellent implemented by a target company acquiring a business that is so poorly regulated that the target itself is less attractive. " provision protects landowners who agree to voluntarily create or improve species habitat by guaranteeing that they will not later incur additional sanction or regulatory requirements Regulatory requirements are part of the process of drug discovery and drug development. Regulatory requirements describe what is necessary for a new drug to be approved for marketing in any particular country. as a result of those improvements.(169) While HCPs have been heavily criticized, their use has increased dramatically in recent years, and they clearly represent the new model of endangered species and habitat protection.(170)
A military land agreement (MLA--at the risk of lapsing into acronymmania) would contain similar features, with two meaningful differences. First, MLAs would be both narrower and broader than HCPs--narrower because they would not directly apply to endangered species or habitats, and more expansive because they would encompass a range of other land use and natural resource issues. There is no compelling reason why private negotiations should be used to subsume sub·sume
tr.v. sub·sumed, sub·sum·ing, sub·sumes
To classify, include, or incorporate in a more comprehensive category or under a general principle: the impact of the ESA and congressional intent to provide the highest level of protection to listed endangered species on federal lands. In any event, there is little conflict over the military's care of listed species.(171) Instead, MLAs would focus on uses and management of military lands under section 3 of the MLWA, which requires BLM to manage the lands under the multi-use requirements of legislation, like FLPMA, and in a manner permitting the following: 1) the continuation of grazing, 2) the protection of wildlife (other than species officially listed under the ESA), 3) control of predatory animals, 4) recreation, and 5) the prevention and appropriate suppression of range and brush fires.(172) So too, MLA MLA
Modern Language Association
MLA n abbr (BRIT POL) (= Member of the Legislative Assembly) → miembro de la asamblea legislativa
MLA (Brit negotiations should deal with the range of other matters, including additional military uses of the lands beyond those specifically delineated in the MLWA's section 1, and the suitability of mining on military lands considered by section 12. These, along with the impact of military overflights over adjacent lands and the preservation of historic ruins and sites, represent the primary areas of contention between the military and its opponents.(173)
These matters would necessarily involve the whole gamut See color gamut.
gamut - The gamut of a monitor is the set of colours it can display. There are some colours which can't be made up of a mixture of red, green and blue phosphor emissions and so can't be displayed by any monitor. of natural resource and land use issues particular to a given site, including the following: the desire for increased access to little-used areas of the military parcel for recreation or scientific endeavors, preservation of environmentally important tracts, access by ranchers to on-site grazing lands, and the effect of supersonic su·per·son·ic
1. Having, caused by, or relating to a speed greater than the speed of sound in a given medium, especially air.
2. Of or relating to sound waves beyond human audibility. overflights on people and animals. In effect, the negotiations would subsume BLM's mandate under MLWA section 3 to develop a management plan for the lands, as well as its discretionary authority to implement that plan and manage the lands.(174) NO other environmental laws or their requirements would be adversely impacted, and the technical conflicts with these laws are few.(175) Military land managers would replace those of BLM in implementing, on a day-to-day basis, the plans that the MLA negotiations have produced.
The second difference between HCPs and MLAs is that the regulated property owner in the military lands context is the government itself, while the :regulators are citizens, representatives of all the interest groups that are "stakeholders Stakeholders
All parties that have an interest, financial or otherwise, in a firm-stockholders, creditors, bondholders, employees, customers, management, the community, and the government. " in the fate of the lands at a given withdrawn location. A panel of representative stakeholders, perhaps selected under the good offices of the Secretary of Interior, would include scientists, nearby landowners, representatives of concerned environmental groups, and community leaders, in addition to federal, state, and local advisors. The composition of this group improves upon the HCP model in that it provides for true citizen representation.(176) Upon agreement with such a group, the military would earn the equivalent of the no surprises and safe harbor provisions that are such an essential part of an HCP, thereby being insulated in·su·late
tr.v. in·su·lat·ed, in·su·lat·ing, in·su·lates
1. To cause to be in a detached or isolated position. See Synonyms at isolate.
2. from additional regulation for the duration of the withdrawal renewal period. There would be no additional attempts to increase the military's environmental responsibilities for the land, and any "improvements," such as increased habitat for non-ESA-listed wildlife, would not; be subject to additional regulation under any other environmental law.
A finite period, six months seems reasonable, should be statutorily established for negotiations. The period, to commence three years prior to the renewal year--the same "starting gun" for the renewal process as under the current MLWA--would allow ample time for meetings and negotiations.(177) If an agreement is reached, the amended statute should specify that the agreement is then to be forwarded to the agency charged with land management and supervision for the given withdrawn parcel for review--currently BLM. BLM's role, however, would be limited to ascertaining if the agreement comports with statutory requirements, that is, it would make no evaluation or recommendation regarding the substantive provisions of the agreement.(178) Once this review is complete, the MLA would be implemented, with no further agency or congressional approval necessary. Subsequent disputes over the enforcement of the MLA, or claims of alleged violations, could be resolved either through mediation by the Secretary of the Interior or implementation of a stakeholder-initiated lawsuit mechanism.
Should the parties fail to reach consensus, the current renewal process would re-engage. This process would no doubt benefit from the studies prepared by all sides during negotiations, the public involvement, and the clarification of key issues.
B. Incentives and Complications
The advantages of MLAs are numerous. The military escapes from the capricious capricious adv., adj. unpredictable and subject to whim, often used to refer to judges and judicial decisions which do not follow the law, logic or proper trial procedure. A semi-polite way of saying a judge is inconsistent or erratic. , rapidly deteriorating political situation in Congress. It obtains a comprehensive land use package constructed with the direct input of military professionals who use the withdrawn lands on a dally basis, ensuring that the overall plan is in tune with practicalities of training and testing. In return for certain concessions that the military is able to provide, it gets certainty ("no surprises"), a "safe harbor" that enables it to freely make environmental improvements yet not forfeit To lose to another person or to the state some privilege, right, or property due to the commission of an error, an offense, or a crime, a breach of contract, or a neglect of duty; to subject property to confiscation; or to become liable for the payment of a penalty, as the result of a flexibility necessary in a time of crisis, and long-term security (twenty-five years instead of fifteen).(179) The latter is especially important if one assumes that the environmental cause will only grow in power and influence; for the military, the price of a deal on withdrawn lands will never be lower. So too, the military would largely be set free from its awkward and inefficient relationship with BLM--which as discussed above is not succeeding in its mission to monitor and manage military land.(180) Instead, professional military land management experts, many of whom are already working on the various military lands at issue, would be able to utilize their location and military-specific expertise in efficient management.(181) Finally, the military would benefit from the public relations value of brokering a deal with environmentalists and local landowners, thereby being seen as responsive and in-tune with public land use desires.
Environmentalists have equal reason to favor negotiations. Because the military has powerful incentives to favor agreement, environmentalists will enjoy substantial leverage in producing concessions. They too have a profound interest in the comprehensive nature of the talks, as they present an opportunity to take an optimal ecosystem approach The Ecosystem Approach is considered one of the most important principles of sustainable environmental management.
The Sixth Conference of the Parties to the Convention on Biological Diversity defined the Ecosystem Approach in Decision V/6, Annex A, section 1 as ‘a to land planning at a given site. At the same time, they may find that the military is far more open to concessions and accommodations that are tailored specifically for one site, rather than if it feels committed to applying such concessions arbitrarily across the board, at great expense and at the loss of future flexibility, as might be required by a statute. So too, environmentalists avoid the syndrome relating to "hot button" lands--where the political process overvalues symbolic environmental concerns. Perhaps most significantly, environmentalists have an opportunity to forge a partnership with an important holder of largely pristine, unspoiled lands, and establish the ground-rules for a new, pragmatic paradigm of natural resource regulation for the coming century. The practices established in MLA negotiations--the most important being the opportunity for meaningful citizen involvement--could be applied far more broadly across the natural resource regulatory spectrum.
Indeed, the primary advantage of such negotiations is that they would address the central criticism levied at HCPs and environmental regulation in general--the lack of citizen participation.(182) While the success of private citizen-based negotiations is uncertain, it is axiomatic ax·i·o·mat·ic also ax·i·o·mat·i·cal
Of, relating to, or resembling an axiom; self-evident: "It's axiomatic in politics that voters won't throw out a presidential incumbent unless they think his challenger will that such participation is more likely to build understanding among the parties, teach methods of compromise, and, if successful, produce a realistic, enforceable natural resource and land use plan.(183) So too, there is a greater chance of public acceptance of such a plan if the public is directly involved, rather than operating on the political sidelines Sidelines
Hypothetical position referring to noninvolvement in a stock; merely watching. or through hired lobbyists tasked with persuading lawmakers of the correctness of their positions.
However, public participation also raises the first of two major problems with the MLA opt-out negotiation proposal. Who, and how many, would sit at the table? While genuine stakeholders who desire a spot at the negotiating table would probably be able to obtain access, no one who desires a role in the negotiations for obviously obstructionist ob·struc·tion·ist
One who systematically blocks or interrupts a process, especially one who attempts to impede passage of legislation by the use of delaying tactics, such as a filibuster. purposes would be admitted. In selecting the stakeholders, the Secretary of Interior would ideally apply objective admission criteria admission criteria
the rules for the establishment of comparable groups in any comparison of differences in the performance or responses of the group. The criteria may be permissible age group, the previous productivity, the freedom from disease and so on. that would serve as the equivalent of the constitutional standing requirement for civil actions. This would ensure that only those who could show some substantial connection, such as owners of adjacent or effected lands, representatives of local environmental coalitions, and national groups who have nearby members, or delegates from local governments would be involved.(184)
Despite this gate-keeping process, broad participation could lead to an unworkable morass of competing interests, a squabbling conglomeration con·glom·er·a·tion
a. The act or process of conglomerating.
b. The state of being conglomerated.
2. An accumulation of miscellaneous things. of passionate stakeholders whose numerous differences translate into a resulting inability to reach consensus.(185) There are certain to be quite a few cooks in the kitchen. But this concern ignores the powerful and unique incentives for the military and environmentalists to opt-out of the congressional approval process, discussed in Part III. These incentives provide real opportunities for innovation and newfound new·found
Recently discovered: a newfound pastime.
Adj. 1. newfound - newly discovered; "his newfound aggressiveness"; "Hudson pointed his ship down the coast of the newfound sea" accommodation.(186) Other stakeholders--ranchers and miners, for instance--probably have fewer incentives to reach an agreement, as they enjoy less public policy power than either environmentalists or the military and, thus, are more likely to view the negotiating process as a way to amplify that power. Obstructionism, by one or a few individuals, could result. But the free-market nature of the negotiations discussed below may increase their incentives to agree. So too, they may come to see that the negotiation process, while falling to yield all they could desire, is more advantageous than the legislative one, where they are likely to be shut out in entirety. If the potential for a single minority to take the process "hostage" is ultimately deemed too great, something less than consensus--perhaps a seventy-five percent or two-thirds supermajority Supermajority
A corporate amendment in a company's charter requiring a large majority (anywhere from 67%-90%) of shareholders to approve important changes, such as a merger. requirement--would be a functional substitute.(187) While there is bound to be dispute over this issue, questions regarding consensus building and which stakeholders to admit to the process are hardly insuperable. It is also important to remember that the consequences for failure, while undesirable, are merely the status quo. The matter would return to Congress, where the MLWA-mandated renewal process could proceed apace.
The second major problem with the MLA proposal takes the form of a broad, fundamental philosophical objection to limiting the role of the federal government in public lands regulation. Is it not the federal government's responsibility, through both Congress and the relevant executive departments, to regulate federal lands? By passing responsibility to a group of mostly private citizens, is not the federal government abdicating its important and time-honored responsibility to steward lands in the best interests of all citizens?
As a threshold matter, this objection is at least partially a matter of semantics. The military is part of the government, and the MLA negotiations would necessarily include not only military officers and DoD officials, but other advisors from the Interior Department as well. Rather than an abdication abdication, in a political sense, renunciation of high public office, usually by a monarch. Some abdications have been purely voluntary and resulted in no loss of prestige. , the matter may just as easily be framed as an expansion of citizen involvement, combined with an exercise of legitimate congressional delegation powers. This delegation is similar, as noted above, to that involved in the establishment of a bipartisan panel to consider military base closings.(188) Political dysfunction may make traditional legislative approaches inefficient, and as a result, an innovative approach may become necessary.(189) It is clear that the MLA process retains or even expands the principles of democratic control, albeit in a direct rather than republican form. As previously noted, in the process it must ensure that it does not run afoul of a·foul of
1. In or into collision, entanglement, or conflict with.
2. Up against; in trouble with: ran afoul of the law. the principles behind the major environmental laws currently in place.(190)
Moreover, the MLA proposal is in keeping with the governmental tempo of our times, in that it is founded on the principle of decentralization and respect for private expertise.(191) In addition to a general political trend that is returning political power to the states, environmental regulation is increasingly taking the form of market-driven mechanisms--emission trading regimes being one prominent example--with reduced involvement by the federal government.(192) Such locally oriented, market-based approaches satisfy the goals both of states' rights states' rights, in U.S. history, doctrine based on the Tenth Amendment to the Constitution, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. advocates and environmental groups who feel that the national government is less than ideally responsive and who wish to have themselves have a say in the decision-making process.(193) Such plans also take advantage of the knowledge of an increasingly sophisticated nongovernmental environmental sector, which is every bit as equipped as the federal government to analyze and draw conclusions from the relevant science.
In addition, unlike the command and control model of traditional regulation, MLAs harness the economic forces of the free market, putting them to work in the service of reaching consensus and agreement. The presence of multiple actors and the groups they represent actually paves the way for deadlock-destroying bargaining among those groups. For instance, one could easily imagine the following scenario: A small group of ranchers are participating in MLA negotiations, seeking to obtain limited grazing rights The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please [ improve this article] or discuss the issue on the talk page. for their stock on a parcel of military land directly adjacent to the ranches. They are arguing that the parcel is not needed for training purposes. The military, citing security concerns, refuses to grant the grazing rights, and the ranchers' objections threaten to eliminate any possibility for agreement. Enter the environmental groups who are also participating in the negotiations. They agree to provide economic compensation to the ranchers in return for their support of an MLA without extended grazing rights. The military, in turn, agrees to set aside a large parcel that is seldom used for training for the purpose of developing a hiking trail that passes near unique natural rock formations and to preserve the parcel sought by ranchers in a pristine state. Environmental damage done by grazing is averted, environmental concessions are achieved, and an MLA is completed. 194 Alternatively, those same ranchers might be willing to set aside a portion of their lands, or alter their grazing practices, in order to obtain environmentalist support of an MLA that grants them rights to an environmentally unimportant tract of military lands.(195) The combinations and possibilities are endless, and the intellectual attractiveness of the free market is that, while imperfect, it tends to find a way.(196) Such economic path-finding capability is seldom available when regulation takes the exclusive form of edicts issued from Washington.
In any event, the burden should fall upon the defenders of direct governmental regulation to justify continuance of the status quo, which grants primary management and supervisory powers to BLM, when its results have been so clearly lackluster.(197)
The withdrawn military land renewal process is an ideal laboratory for experimentation with increased public participation and bargaining in public lands management. The lands involved are large enough that they present meaningful natural resource issues, yet they are sufficiently compact that those issues are relatively discrete and involve a manageable number of stakeholders. Important environmental and national security considerations make it imperative that improvements in the military land management process be made. Most importantly, unique circumstances exist that have produced compelling incentives for the parties to reach agreement in a nonlegislative forum.
An experiment in privatizing regulation at this limited level involves no risk, and poses no challenge to the entrenched en·trench also in·trench
v. en·trenched, en·trench·ing, en·trench·es
1. To provide with a trench, especially for the purpose of fortifying or defending.
2. system of federal management. This Article does not suggest that stakeholder stakeholder n. a person having in his/her possession (holding) money or property in which he/she has no interest, right or title, awaiting the outcome of a dispute between two or more claimants to the money or property. committees are an appropriate mechanism for managing all of the nation's public lands. Rather, MLA negotiations present an opportunity to improve upon and enrich the traditional system of management with an alternative model that, when appropriate, could be used to establish more effective land management plans that advance the interests of the government landholder, environmentalists, and other interested parties. A military public lands management process that is truly public holds out the promise of long-term consensus, which in turn may foster partnerships and understandings in other areas of natural resource and environmental concern.
As the amount of open lands continues to shrink, the establishment of connections among competing groups and the sharing of knowledge, expertise, and expectations may prove vital in developing workable, sustainable plans to allocate what valuable land resources remain. In the final analysis, talking and trading, rather than lobbying and lawmaking, is far more likely to provide a foundation upon which such plans may be built.
(1) Pub. L. No. 99.606, [sections] 5, 100 Stat. 3457, 3462-63 (1986).
(2) Id. [sections] 1, 100 Stat. at 3457-59; id. [sections] 5, 100 Stat. at 3462-63; id. [sections] 8, 100 Stat. at 3464-66.
(3) See infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. notes 80-81 and accompanying text.
(4) See generally Eric Okerstrom, No Home on the Range, NAVAL PROC (language) PROC - The job control language used in the Pick operating system.
["Exploring the Pick Operating System", J.E. Sisk et al, Hayden 1986]. ., Nov. 1998, at 52, 53 (describing the growing opposition to military uses of public lands and decreasing support for the military). In addition, these groups have signaled what may be expected during the land renewal process through their support, via congressional testimony, of both military land use restriction bills, see infra text accompanying note 8, and federal court lawsuits involving military lands, see infra note 130.
(5) See William E. Riebsame, The Changing West, ENV'T, May 1996, at 8.
(6) Id. at 8 (noting the dramatic changes to the mining, ranching, and timber economies as a result of population growth in the West).
(7) See infra text accompanying notes 40-68.
(8) See Military Land Reform: Hearing on H.R. 2080 Before the Subcomm. on National Parks, Forests & Public Lands of the House Comm See comms. . on Natural Resources, 103d Cong. 152 (1994) [hereinafter here·in·af·ter
In a following part of this document, statement, or book.
Formal or law from this point on in this document, matter, or case
Adv. 1. Military Land Reform Hearing] (statement of Karl Gawell, Director, National Parks Programs, Wilderness Society) (noting that "[t]he Wilderness Society believes that H.R. 2080 is a good first step in the direction of more accountable land and airspace use by the military ... [b]ut [it] should be significantly strengthened."). For a discussion of H.R. 2080, which would have imposed a number of restrictions on military land use, see infra text accompanying notes 65-70. See also Military Land Reform Hearing, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. , at 149 (statement of Karl Gawell) (noting that "It]he Wilderness Society ... strongly feels that the Congress should involve itself more in the oversight of [military] activities to improve the accountability of their use and to minimize adverse effects upon historic, recreational, wildlife and natural resources as well as impacts upon Native American and rural communities"); Natural Resource Management on Military Lands: Hearing on H.R. 3300 and H.R. 2080 Before the Subcomm. on Military Installations & Facilities of the House Comm. on Armed Services, 103d Cong. 70 [hereinafter Natural Resource Management on Military Lands Hearing] (statement of Grace Bukowski, The Rural Alliance for Military Accountability) (noting the "crucial need for [congressional] oversight of [DoD's] airspace and land uses").
(9) See Military Land Reform Hearing, supra note 8, at 4.
(10) See Major Karen V. Fair, Environmental Compliance in Contingency Operations A military operation that is either designated by the Secretary of Defense as a contingency operation or becomes a contingency operation as a matter of law (10 United States code (USC) 101[a]). It is a military operation that: a. : In Search of a Standard?, 157 Mm. L. REV. 112, 161-63 (1998).
(11) See H.R. REP. No. 102-1031, at 7 (1992) (noting the need for "greater expanses of real estate and air space for training").
(12) See Natural Resource Management on Military Lands Hearing, supra note 8, at 74 (statement of Frank J. Colson, Executive Director, Policy Board on Federal Aviation, United States Dep't of Defense) (discussing military opposition to the reduced flexibility of a bill that would limit military flights over federal lands).
(13) GEORGE CAMERON For Wiccan High Priest, see .
George Cameron (vocals/drums) was a founding member of the baroque rock vocal group the Left Banke. George Cameron plays drums for Charly Cazalet-rough mix-nyc, that was released in 2005 on cdbaby.com. COGGINS & CHARLES F. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCES LAW 134 (1987); see also Mark Sagoff, Settling America or the Concept of Place in Environmental Ethics Environmental ethics is the part of environmental philosophy which considers the ethical relationship between human beings and the natural environment. It exerts influence on a large range of disciplines including law, sociology, theology, economics, ecology and geography. , 12 J. ENERGY NAT (Network Address Translation) An IETF standard that allows an organization to present itself to the Internet with far fewer IP addresses than there are nodes on its internal network. . RESOURCES & ENVTL. L. 349, 402-06 (1992).
(14) See generally CHARLES F. WHEATLEY, JR., STUDY OF WITHDRAWALS AND RESERVATIONS OF PUBLIC DOMAIN LANDS (1969) (detailing the past and current withdrawal authority by the Executive of public domain lands with the intent and objective of Congress in enacting the principal withdrawal statutes).
(15) The following discussion is no more than what it explicitly claims to be: a brief history, tailored to facilitate the inquiry of this Article. The full story of public land withdrawals and reservations is as fascinating as it is lengthy, as it implicates much of the social, legal, political, scientific, and military history of the United States The military history of the United States spans a period of over two centuries. During the course of those years, the United States grew from an alliance of thirteen British colonies without a professional military to the world's sole remaining superpower of the late 20th and early in the twentieth century. A detailed exploration of the development of public lands law may be found in COGGINS & WILKINSON, supra note 13. See also WHEATLEY, supra note 14. For a comprehensive, yet manageable treatment of the subject, see Major Sharon E. Riley, The Wolf at the Door: Competing Land Use Values on Military Installations, 153 MIL. L. REV. 95 (1996). For a societal and political perspective, see the now-classic history of American natural resources law and culture, RODERICK NASH Roderick Nash is a history and environmental studies professor at the University of California Santa Barbara. Scholarly Biography
He received his Bachelor of Arts from Harvard University and his Ph.D. from the University of Wisconsin-Madison. , WILDERNESS AND THE AMERICAN MIND 12240 (1967).
(16) U.S. Const. art. IV, [sections] 3, cl. 2. It is important to distinguish between "withdrawals" and "reservations" of public lands. A withdrawal of land is best defined as "a generic term referring to a statute, an executive order, or an administrative order An order covering traffic, supplies, maintenance, evacuation, personnel, and other administrative details. that changes the designation of a described parcel from `available' to `unavailable' for homesteading Broadly defined, homesteading is a lifestyle of simple, agrarian self-sufficiency. History
In the United States, the Homestead Act (1862) allowed anyone to claim up to 160 acres (64.7 hm²) of land. or resource exploitation." COGGINS & WILKINSON, supra note 13, at 239. Put somewhat differently, a withdrawal "exempts public lands from development except in accordance with the terms of the withdrawal." William A. Wilcox, Jr. & Andrew J. Vliet III, The Engle Act and Military Land Withdrawals: A Blueprint for Inter-Agency Cooperation, 32 LAND & WATER L. REV. 461, 464 (1997). A withdrawal may be permanent or temporary, but it has generally been utilized to withdraw lands for a lengthy period. The word reservation means "to dedicate" withdrawn land to a specified purpose, more or less permanently. COGGINS & WILKINSON, supra note 13, at 239. This Article will occasionally make reference to lands that have been "reserved" for military use; it does so colloquially col·lo·qui·al
1. Characteristic of or appropriate to the spoken language or to writing that seeks the effect of speech; informal.
2. Relating to conversation; conversational. and not in the legal sense described in this footnote.
(17) Frank J. & Deborah E. Popper An early Unix POP server, which was written at the University of California at Berkeley. , The Reinvention of the American Frontier, AMICUS J., Summer 1991, at 4; COGGINS & WILKINSON, supra note 13, at 241.
(18) COGGINS & WILKINSON, supra note 13, at 134-35, 141-44.
(19) See NASH Nash , Ogden 1902-1971.
American writer known for his droll epigrammatic verse, much of which appeared in the New Yorker.
Noun 1. Nash - United States writer noted for his droll epigrams (1902-1971)
Ogden Nash , supra note 15, at 122-40; see also NATHAN MILLER Nathan Miller may refer to:
In the U.S., any of numerous areas reserved by the federal government for the protection of objects or places of historical, scientific, or prehistoric interest. .
(20) COGGINS & WILKINSON, supra note 13, at 241 ("From the beginning Presidents carved military reservations out of the public domain by executive order, arguably ar·gu·a·ble
1. Open to argument: an arguable question, still unresolved.
2. That can be argued plausibly; defensible in argument: three arguable points of law. in accordance with the President's role as Commander-in-Chief of the Armed Forces.").
(21) WHEATLEY, supra note 14, at 452-55.
(22) MILLER, supra note 19, at 469.
(24) See generally discussion infra notes 47-55 and accompanying text.
(25) MILLER, supra note 19, at 469.
(26) Id. at 470-71.
(27) Pickett Act of June 25, 1910, ch. 41, [subsections] 1-2, 36 Stat. 847, repealed by Federal Land Policy and Management Act of 1976, [sections] 704(a), 90 Stat. 2744, 2792.
(28) COGGINS & WILKINSON, supra note 13, at 241.
(30) Id. at 248 (noting "[t]he minerals industries sought strict limitations on executive discretion to withdraw" lands).
(31) See United States v. Midwest Oil Co., 236 U.S. 459 (1915) (upholding massive withdrawals made by President William Howard Taft on the grounds that longtime "congressional acquiescence Conduct recognizing the existence of a transaction and intended to permit the transaction to be carried into effect; a tacit agreement; consent inferred from silence. " to executive withdrawals amounted to an implied delegation of withdrawal authority under the Property Clause to the executive). Midwest Oil was eventually overturned by passage of the Federal Land Policy and Management Act (FLPMA) in 1976; see discussion infra notes 4344 and accompanying text. For discussion of the executive branch's interpretation of the Pickett Act, see WHEATLEY, supra note 14, at 5 (noting that "Attorney General Jackson There have been multiple generals named Jackson.
(32) See WHEATLEY, supra note 14, at 4, 6.
(33) See H.R. REP. No. 102-1031, at 6 (1992) ("[B]efore 1958, public lands could be converted into military bases or otherwise allocated for military uses by administrative actions alone. Many such actions were taken as the Nation was drawn into World War II.").
[T]he period after 1945 differed from previous postwar eras because the nation remained on a near-war footing even when not actively engaged in Korea, Vietnam, and elsewhere. As a result, there are increased public concern [sic] that many military allocations of public lands--originally seen as temporary measures to respond to military wartime needs--seemed likely to become permanent, thus excluding other possible uses of the public lands involved.
(35) The first nuclear weapons test, the so-called "Trinity" detonation, required an isolated section of southern New Mexico measuring 18 miles by 24 miles, which itself was 20 miles from the nearest town. STEPHANE GROUEFF Stephane Groueff, a writer, journalist and a political refugee, was born in Sofia, Bulgaria in 1922. He died in May 2006 in the USA. He was studying law in the University of Geneva when the communists seized power in his country in 1944. , THE MANHATTAN PROJECT Manhattan Project, the wartime effort to design and build the first nuclear weapons (atomic bombs). With the discovery of fission in 1939, it became clear to scientists that certain radioactive materials could be used to make a bomb of unprecented power. U.S. : THE. UNTOLD STORY OF THE MAKING OF THE ATOMIC BOMB atomic bomb or A-bomb, weapon deriving its explosive force from the release of atomic energy through the fission (splitting) of heavy nuclei (see nuclear energy). The first atomic bomb was produced at the Los Alamos, N.Mex. 341 (1967). As the size of the bombs increased, so did the size of the lands necessary to test them. Id.
(36) See DANIEL YERGIN Daniel H. Yergin (born February 6, 1947) is an American author, speaker, and economic researcher.
Born in Los Angeles, California to a Chicago Tribune reporter father and a mother who was a sculptor and painter, Yergin received his B.A. , SHATTERED shat·ter
v. shat·tered, shat·ter·ing, shat·ters
1. To cause to break or burst suddenly into pieces, as with a violent blow.
a. PEACE 200 (1977)
Imagine that a war that began with Polish cavalry charging German tanks ended with the V-2 over London and the atomic bomb detonated in the air above Hiroshima.... It was clear to post-war American leaders that R&D and the country's entire industrial machine ... had to be permanently integrated with the nation's arsenal.
(37) See id. (implying that growing technological sophistication so·phis·ti·cate
v. so·phis·ti·cat·ed, so·phis·ti·cat·ing, so·phis·ti·cates
1. To cause to become less natural, especially to make less naive and more worldly.
2. requires more space to train and test). Such early generation missiles included the Boeing CIM-10A "BOMARC BOMARC Boeing and Michigan Aeronautical Research Center) ," with a range of 260 miles. Cold War Warrior Web Site (visited Mar. 4, 1999) <http://www. island.neff~amuck/>. For a useful summary of Cold War era weapons, see id.
(38) See YERGIN, supra note 36, at 200. For instance, by 1954, jet aircraft like the F-101B (nicknamed "Voodoo"), a plane used for tactical and air defense missions, was capable of flying at 1095 miles per hour (mph), replacing earlier generation jet fighters like the North American North American
named after North America.
North American blastomycosis
see North American blastomycosis.
North American cattle tick
see boophilusannulatus. F-86D "Sabre," which had a maximum speed of 715 mph. Cold War Warrior Web Site, supra note 37.
(39) See YERGIN, supra note 36, at 408.
(40) 43 U.S.C. [sections] 156 (1994).
(41) Id. (making approval by Congress necessary for any withdrawal by Department of Defense).
(42) See Military Land Reform Hearing, supra note 8, at 157 (statement of Lindsey Manning, Chairman, Shoshone-Paiute Tribes of the Duck Valley Indian Reservation The Duck Valley Indian Reservation was established as a homeland for members of both the Shoshone and Paiute tribes of Native Americans. It lies on the state line between Idaho and Nevada in the western United States. ) (quoting Engle Act legislative history).
(43) Federal Land Policy and Management Act of 1976, 43 U.S.C. [subsections] 1701-1784 (1994).
(44) 236 U.S. 459 (1915).
(45) See Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, [sections] 704, 90 Stat. 2743, 2792 (1976); COGGINS & WILKINSON, supra note 13, at 248.
(46) COGGINS & WILKINSON, supra note 13, at 248 (quoting 43 U.S.C. [sections]1701(a)(4)).
(47) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1543 (1994). The ESA requires all federal agencies to "utilize their authorities in furtherance fur·ther·ance
The act of furthering, advancing, or helping forward: "Pakistan does not aspire to any . . . role in furtherance of the strategies of other powers" Ismail Patel. of the purposes of this Act" by carrying out programs "to conserve endangered species and threatened species." Id. [sections] 1531(c)(1). See also National Environmental Policy Act of 1983, 42 U.S.C. [subsections] 4321-4370(a) (1994). NEPA requires federal agencies to consider environmental effects of, and alternatives to, major federal actions significantly affecting the quality of the human environment. Id. [sections] 4332(c). See also David N. Diner diner, restaurant resembling the railroad dining car that is its source. In the mid-19th cent., the first dining cars that appeared on trains were nothing more than an empty car with a fastened-down table. George M. , The Army and the Endangered Species Act: Who's Endangering Whom?, 143 Mm. L. REV. 161 (1994).
(48) See Lawrence J. MacDonnell, Thinking About Environmentally Sustainable Development Sustainable development is a socio-ecological process characterized by the fulfilment of human needs while maintaining the quality of the natural environment indefinitely. The linkage between environment and development was globally recognized in 1980, when the International Union in the American West, 18 J. LAND RESOURCES &ENVTL. L. 123, 125-26 (1998) (describing a 32% population growth in the west over the past 25 years).
(49) See Diner, supra note 47.
(51) See JAMES T. BENNETT & THOMAS J. DILORENZO, DESTROYING DEMOCRACY: How GOVERNMENT FUNDS; PARTISAN POLITICS 137-71 (1985) (detailing the evolution of the environmental movement and its political activities).
(52) See generally COGGINS & WILKINSON, supra note 13, at 248-49 (noting attempts by President Reagan to terminate protective classifications and revoke To annul or make void by recalling or taking back; to cancel, rescind, repeal, or reverse.
revoke v. to annul or cancel an act, particularly a statement, document, or promise, as if it no longer existed. withdrawals for public lands); see also Robert Scheer Robert Scheer (born 1936) is an American journalist who writes a nationally syndicated op-ed column for the San Francisco Chronicle from a left perspective. He teaches communications as a professor at the University of Southern California and edits the online magazine , James Watt: Robin Hood Robin Hood, legendary hero of 12th-century England who robbed the rich to help the poor. Chivalrous, manly, fair, and always ready for a joke, Robin Hood reflected many of the ideals of the English yeoman. in Reverse, S.F. EXAMINER, Jan. 11, 1996, at A19 (noting how Reagan's former Secretary of the Interior, James Watt, engendered disrespect for the President's policies).
(53) See COGGINS & WILKINSON, supra note 13, at 24849.
(54) Military Land Reform Hearing, supra note 8, at 6 (statement of Karl Galwell).
(55) Military Land Withdrawal Act of 1986, Pub. L. No. 99-606, 100 Stat. 3457 (1986).
(56) Id. The withdrawn areas are the Navy's 21,000-acre Bravo-20 bombing range in Nevada, the 2.9 million-acre Nellis Air Force Range The Nellis Air Force Range (NAFR) was renamed as the Nevada Test and Training Range (NTTR) in 2001 and is operated by the USAF Warfare Center's 98th Range Wing. The name "NAFR" is still used in conjunction with formal agreements made prior to the name change. in Nevada, the 2.6 million-acre Barry M. Goldwater Air Force Range The Barry M. Goldwater Air Force Range (formerly Luke Air Force Range) is a bombing range in the U.S. state of Arizona that runs along the Mexican border.
It is used for bombing practice by United States Air Force pilots in F-16s and Marine Corps pilots in F-18's, AV-8B in Arizona, the Army's McGregor Range in New Mexico, the Fort Greely Maneuver Area, and the Fort Wainwright Fort Wainwright is a United States Army post adjacent to Fairbanks in the U.S. state of Alaska. It is part of the Fairbanks, Alaska Metropolitan Statistical Area.
It was established in 1961 when the former United States Air Force base, Ladd Field, was transferred to the Maneuver Area in Alaska. Id. [sections] 1, 100 Stat. at 3457-59.
(57) Id. [sections] 1, 100 Stat. at 3457-59; [sections] 3, 100 Stat. at 3460.
(59) Id. [sections] 3(a), 100 Stat. at 3460. For a discussion of the impact of FLPMA on the MLWA and the amendments proposed in this Article, see infra note 174.
(60) Id. [sections] 3, 100 Stat. at 3460. The U.S. Fish and Wildlife Service also manages two national wildlife refuges National Wildlife Refuge that have airspace under military control near two of the withdrawn sites. Natural Resource Management on Military Lands Hearing, supra note 8, at 5 (statement of Donna M. Heivilin, Director, Defense Management and NASA NASA: see National Aeronautics and Space Administration.
in full National Aeronautics and Space Administration
Independent U.S. , National Security and International Affairs Noun 1. international affairs - affairs between nations; "you can't really keep up with world affairs by watching television"
affairs - transactions of professional or public interest; "news of current affairs"; "great affairs of state" Division).
(61) Military Land Withdrawal Act, [sections] 12, 100 Stat. at 3466-67.
(62) Id. at [sections] 5(a), 100 Stat. at 3462; [sections] 8(a), 100 Stat. at 3464.
(65) Id. at [sections] 5(c), 100 Stat. at 3463 ("The withdrawals established by this Act may not be extended or renewed except by an Act or joint resolution.").
(66) See Military Land Reform Hearing, supra note 8, at 168 (statement of Cathy Carlson, Legislative Representative, Fish and Wildlife Resources Division, National Wildlife Federation) (noting that over 15 million acres of public lands have been withdrawn for military purposes, while the DoD owns or controls a total of 25 million acres).
(67) See H.R. REP. No. 102-1031 (1992) (outlining measures that would prohibit transfer to DoD of lands in conservation system units or other areas set aside for conservation purposes, limit exchanges of federal lands to those that would "improve" the protection and management of the National Forest System--thus restricting the military's ability to exchange lands within the federal system--and restrict military use of airspace). This bill was later reborn re·born
Emotionally or spiritually revived or regenerated.
active again after a period of inactivity
Adj. 1. as The Military Land Reform and Reassessment Act of 1994. See infra note 68; see also H.R. REP. No. 104-107 (1995) (strengthening requirements for the preparation of natural resource management plans and their enforcement on military lands).
(68) See Natural Resource Management on Military Lands Hearing, supra note 8, at 70 (statement of Brigadier General Stewart W. Wallace, Director of Training, Office of the Deputy Chief of Staff for Operations, United States Army United States Army
Major branch of the U.S. military forces, charged with preserving peace and security and defending the nation. The first regular U.S. fighting force, the Continental Army, was organized by the Continental Congress on June 14, 1775, to supplement local ) (outlining the basic provisions of H.R. 3300 (The Natural Resource Management on Military Lands Act) and H.R. 2080 (The Military Land Reform and Reassessment Act)).
(71) See Military Land Reform Hearing, supra note 8, at 31, 36 (statement of Sherri W. Goodman, Deputy Under-Secretary of Defense for Environmental Security) (outlining H.R. 2080's proposed amendment to the Engle Act that would eliminate the ability of the Federal Aviation Administration Federal Aviation Administration (FAA), component of the U.S. Department of Transportation that sets standards for the air-worthiness of all civilian aircraft, inspects and licenses them, and regulates civilian and military air traffic through its air traffic control to establish "temporary restricted areas for the military to conduct large-scale military training exercises over public lands"). Environmentalists have expressed growing concern about the impact of military overflights, claiming that they disturb the nurturing of the young of some endangered species--such as the wood stork--and can force wildlife out of preferred habitat onto "less suitable ranges." Id. at 151 (statement of Karl Gawell).
(72) For example, environmental groups large and small testified enthusiastically in support of The Military Land Reform Reassessment Act and The Natural Resource Management on Military Lands Act during congressional deliberations in 1994. See id. at 150-51 (statement of Karl Gawell, Director, National Parks Program, Wilderness Society); see also Natural Resource Management on Military Lands Hearing, supra note 8, at 70 (statement of Grace Bukowski); id. at 133 (statement of Gene Stout, National Wildlife Federation); Military Land Reform Hearing, supra note 8, at 366 (statement of Bob DiGrazia, Foundation for North American Wild Sheep).
(73) COGGINS & WILKINSON, supra note 13, at 248.
(76) Proclamation No. 6920, 3 C.F.R. pt. 64 (1997); see also David Negri, Grand Staircase (If you're looking for the similarly named structure on the RMS Titanic, see Grand Staircase of the Titanic)''
The Grand Staircase is an immense sequence of sedimentary rock layers that stretch south from Bryce Canyon National Park through Zion National . Escalante National Monument: Presidential Discretion Plus Congressional Acquiescence Equals A New National Monument, 10 UTAH B.J. 20 (1997).
(77) Negri, supra note 76, at 20-21.
(78) Throughout this Article, the problem of overgeneralization as to the characterization of the "environmentalist," and what the environmentalist believes is "good" for the cause will rear its ugly head. It is always dangerous to utilize broad terms such as "environmentalist" and "military." Yet for purposes of generating readable prose, such rhetorical shorthand shorthand, any brief, rapid system of writing that may be used in transcribing, or recording, the spoken word. Such systems, many having characters based on the letters of the alphabet, were used in ancient times; the shorthand of Tiro, Cicero's amanuensis, was used is ultimately necessary. For instance, there are undoubtedly many environmentalists of a more conservative bent who view such expansive presidential withdrawals as a short-circuiting of the democratic process, as well as an abomination to the concept of separation of powers. Nevertheless, for purposes of argument it makes sense to argue that the withdrawal of Grand Staircase-Escalante under the Antiquities Act was viewed by most environmentalists as a positive event, even if some disagreed with the method. It is in this spirit that general terms and groupings are used in this Article.
(79) President Carter also utilized the presidential power to protect lands by creating 15 National monuments, totaling more than 55 million acres. Proclamation Nos. 4611-28, 3 C.F.R. 69-104 (1979).
(80) Indeed, one of the strangest aspects of the antimilitary coalition opposing military control over public lands is that it involves such strange bedfellows. As one commentator observed:
When the Navy Fighter Weapons School relocated to NAS Fallon, Nevada, for example, a unique alliance--environmentalists, ranchers, sportsmen and miners--formed to protest the expansion of ranges and airspace. The environmentalists sought to protect the desert ecology. Sportsmen objected to the withdrawal of more wilderness and to the noise on the land that is currently open. Ranchers and miners objected because they could no longer get access to withdrawn lands for their purposes. These individual groups, generally at opposite ends of the political spectrum but acting in concert on this issue, are being heard in the halls of Congress--and their voice resonates on both sides of the aisle.
Okerstrom, supra note 4, at 53. It may be useful for environmentalists to ponder which set of traditional adversaries--ranchers, miners, sportsmen, developers, etc., on one hand, the military on the other--are more preferable, and sustainable, allies in the quest for Verb 1. quest for - go in search of or hunt for; "pursue a hobby"
quest after, go after, pursue
look for, search, seek - try to locate or discover, or try to establish the existence of; "The police are searching for clues"; "They are searching for the environmental goals. For instance, the explicit review provision of the MLWA that mandates covered lands be considered for mining purposes every five years would seem to constitute a direct threat to environmental interests. See Military Land Withdrawal Act, Pub. L. No. 99- 606, [sections] 12, 100 Stat. 3457 (1986).
(81) See Tough Marines and Fragile Fauna fauna
All the species of animals found in a particular region, period, or special environment. Five faunal realms, based on terrestrial animal species, are generally recognized: Holarctic, including Nearactic (North America) and Paleartic (Eurasia and northern Africa); , L.A. TIMES, NOV. 6, 1995, at B4 (citing RAND Corp. study for proposition that "military activities today are generally far less environmentally destructive than timber harvesting or cattle grazing, and the armed forces probably function better than any other federal landowner when it comes to protecting the environment.").
(83) U.S. DEP'T OF DEFENSE, DEFENDING OUR NATURAL HERITAGE: NATURAL RESOURCES IN THE DEPARTMENT OF DEFENSE. 2 (1996). In total, DoD controls 25 million acres of land, an area approximately the size of Kentucky. Okerstrom, supra note 4, at 52.
(84) Natural Resource Management on Military Lands Hearing, supra note 8, at 39 (statement of Sherri Goodman, Deputy Under Secretary of Defense for Environmental Security).
(85) Military Land Reform Hearing, supra note 8, at 81 (statement of Brigadier General Stewart W. Wallace).
(86) Id. at 78.
(87) See Steven S Ste´ven
n. 1. Voice; speech; language.
Ye have as merry a steven
As any angel hath that is in heaven.
2. An outcry; a loud call; a clamor.
To set steven
to make an appointment. . Honigman & John P. Quinn, Navy Blue Goes Green, NAVAL PROC., Aug. 1988, at 56 (detailing efforts to protect whales from underwater concussion concussion
Period of nervous-function impairment that results from relatively mild brain injury, often with no bleeding in the cerebral cortex. It causes brief unconsciousness, followed by mental confusion and physical difficulties. blasts and other marine life from adverse effects of low-frequency sonar and ship shock testing).
(88) See STEPHEN DYCUS, NATIONAL DEFENSE AND THE ENVIRONMENT 5 (1996) (observing that while the 25 million acres of land under military control are exposed to injury from defense-related activities, they are simultaneously spared from commercial development, an irony that has not escaped the notice of neighbors living near many closing military bases); Natural Resource Management on Military Lands Hearing, supra note 8, at 7 (statement of Donna M. Heivillin) ("BLM officials said that reduced public access on the Goldwater Range and other restrictions on off-road vehicles off-road vehicle off n → véhicule m tout-terrain have resulted in less vandalism and damage to sensitive soils than would have occurred otherwise.").
(89) Of course, some areas have been significantly restricted as a result of military use. For example all 41,000 acres of the Bravo-20 Range, one of the areas covered by the MLWA, are completely off-limits to BLM staff because of hazardous unexploded ordinance. Natural Resource Management on Military Lands Hearing, supra note 8, at 6 (statement of Donna M. Heivillin).
(90) See generally Mel Reisner, Scenic Military Range, Once Off-Limits, Puts Out Welcome Mat, L.A. TIMES, Oct. 8, 1989, at 52.
(91) Tough Marines and Fragile Fauna, supra note 81, at B4.
(92) See Anita P. Miller & John B. Wright, Report of the Subcommittee on Innovative Growth Management Measures: Preservation of Agricultural Land and Open Spaces, 23 URB URB USB (Universal Serial Bus) Request Block
URB Urbanización (district; postcode use, Puerto Rico)
URB University Radio Bath (UK)
URB Upright Bass . LAW. 821, 843 (1992) (asserting that mining is invasive and destructive to land).
(93) Military Lands Withdrawal Act of 1986, Pub. L. No. 99-606, [sections] 12, 100 Stat. 3466 (1986); see also Congress May Open Bombing Range Land to Mining, LAS VEGAS Las Vegas (läs vā`gəs), city (1990 pop. 258,295), seat of Clark co., S Nev.; inc. 1911. It is the largest city in Nevada and the center of one of the fastest-growing urban areas in the United States. REV. J., Sept. 6, 1991, at 4B, available, in 1991 WL 3604681.
(94) See Tough Marines and Fragile Fauna, supra note 81, at B4 (noting that "[t]he military still has a long way to go, especially in cleaning up toxic wastes dumped carelessly during the years when it was almost immune from environmental laws"); see also DAVID RUBENSON ET AL., MARCHING TO DIFFERENT DRUMMERS Different Drummer
Thoreau’s eloquent prose poem on the inner freedom and individualistic character of man. [Am. Lit.: NCE, 2739]
See : Individualism : EVOLUTION OF THE ARMY'S ENVIRONMENTAL PROGRAM (1994) (detailing the Army's progress in developing an environmental program); DYCUS, supra note 88, at 80-122 ("[F]our decades of Cold War have left soil, groundwater, and buildings at defense facilities from coast to coast contaminated with hazardous and radioactive wastes radioactive waste, material containing the unusable radioactive byproducts of the scientific, military, and industrial applications of nuclear energy. Since its radioactivity presents a serious health hazard (see radiation sickness), disposing of such material is a .").
(95) See DYCUS, supra note 88, at 6.
One top military lawyer explains that the Army is like a very large industrial company that is lagging five to ten years behind its corporate counterparts in compliance with the environmental laws. Its failures, he insists, have mostly been `stupid mistakes.' The military services are learning from experience to improve internal communications and to centralize responsibility for environmental matters.
(96) Id. at 2-3 (quoting former Secretary of Defense Dick Cheney, that "Defense and the environment is not an either/or proposition. To choose between them is impossible in this real world of serious defense threats and genuine environmental concerns."); Natural Resource Management on Military Lands Hearing, supra note 8, at 33 (statement of Sherri W. Goodman) (describing military environmental priorities).
(97) For instance, the military has established web sites offering information and encouraging public comment on the MLWA renewal process. See, e.g., U.S. Air Force, Nellis Range Renewal Index Page (last modified Dec. 29, 1998) <http://www.nellis.af. mil/range/renewal/ index.htm> (detailing the renewal process); see also Natural Resource Management on Military Lands Hearing, supra note 8, at 3 (statement of Sherri W. Goodman) (describing DoD's Mojave Ecosystem Management Initiative, which brings together agencies and people within a region to develop an integrated plan to manage land and species); Reisner, supra note 90, at 52 (describing the opening of the Barry M. Goldwater Air Force Range to hikers, backpackers, hunters, and prospectors); see also DYCUS, supra note 88, at 186-88, 190 (discussing the "sweeping new programs" designed by the military to better facilitate the execution of environmental laws, the Pentagon program to reduce production of hazardous wastes Hazardous waste
Any solid, liquid, or gaseous waste materials that, if improperly managed or disposed of, may pose substantial hazards to human health and the environment. Every industrial country in the world has had problems with managing hazardous wastes. and practice recycling, and stepped-up efforts to inform the public about actions affecting local environments).
(98) See generally GENERAL ACCOUNTING OFFICE, NATURAL RESOURCES: DEFENSE AND INTERIOR CAN BETTER MANAGE LAND WITHDRAWN FOR MILITARY USE (1994) [hereinafter REPORT #1]; GENERAL ACCOUNTING OFFICE, ENVIRONMENT: DoD's New ENVIRONMENTAL SECURITY STRATEGY FACES BARRIERS (1994) [hereinafter REPORT #2].
(99) REPORT #2, supra note 98, at 5.
(100) REPORT #1, supra note 98, at 7-8.
(102) REPORT #2, supra note 98, at 5.
(103) It is worth noting, however, that this difficulty is directly addressed by the "safe harbor" provision of the MLA proposal. See infra text accompanying notes 179-80.
(104) Wilcox & Vliet, supra note 16, at 468. In addition to these observations, the authors also highlight some of the few examples of cooperation between the military and BLM. However, their evidence of institutional compatibility is scarce and largely anecdotal and cannot be reconciled with the GAO reports.
(105) Id. at 468-69.
(106) Id. (noting that on occasions when BLM and the Army have disagreed over management of military lands, the local commanding general has received vast quantities of mail from BLM supporters).
(107) For example under the MLWA, BLM must manage military lands with an eye toward facilitating grazing, wildlife protection, predatory animal control, recreation, the prevention of fires, and, of course, military uses and requirements imposed by all other environmental laws. Military Lands Withdrawal Act of 1986, Pub. L. No. 99-6-6, [sections] 3(a), 100 Stat. 3460.
(108) Federal Land Policy and Management Act of 1976, 43 U.S.C. [sections] 1701(a)(7)-(8) (1994). As an example, these provisions require the management of lands to further twelve different priorities--including historical, ecological, environmental, and habitat needs--while simultaneously mandating that all lands be managed "on the basis of multiple use an sustained yield sus·tained yield
1. The continuing yield of a biological resource, such as timber from a forest, by controlled periodic harvesting.
2. The quantity of a resource harvested in this manner. ." Id.
(109) COGGINS & WILKINSON, supra note 13, at 717.
(110) Indeed, BLM is a troubled and often ineffective agency generally. See id. at 162-63.
Throughout its relatively short history, BLM has been assigned difficult management tasks without the wherewithal to accomplish them. Some of its programs long have been dominated by the private interests BLM was supposed to regulate; congressional ignorance and indifference allowed BLM lands to deteriorate further; and resource crises on the formerly open range are coming to a head in litigation.
(111) See generally id. (noting that BLM has become dominated by the private interests it was intended to regulate).
(112) See infra note 113.
(113) While defense spending continues to decline--a 39% drop from the mid-1980s--U.S. armed forces have been used in thirty-six major missions since 1990, compared to twenty-two between 1980 and 1989. White House Already Spending Budget Surplus, AP, Mar. 14, 1998, available in 1998 WL 7395605; Is U.S. Military Ready for War in 21st Century?, SEATTLE TIMES, May 26, 1997, at B4, available in 1997 WL 3235265 (noting the likelihood that U.S. forces will continue over the next 15 to 20 years to "participate in peacekeeping operations Noun 1. peacekeeping operation - the activity of keeping the peace by military forces (especially when international military forces enforce a truce between hostile groups or nations)
peacekeeping, peacekeeping mission , humanitarian assistance efforts and other non-combat missions in far-flung regions--from Albania to the former Zaire"). Indeed, it has become popular to observe that the U.S. military is being asked "to do more with less." See Bradley Graham, Senators Scold SCOLD. A woman who by her habit of scolding becomes a nuisance to the neighborhood, is called a common scold. Vide Common Scold. Military Chiefs; Top Officers Accused of Failing to Warn Soon Enough of Readiness Decline, WASH. POST, Sept. 30, 1998, at A2; The White House Press Briefing by Mike McCurry, June 2, 1997, available in 1997 WL 10371010 (Press Secretary Mike McCurry observing that "[o]ne of the hallmarks of the success of the U.S. military in this day and age is that they are doing more with less").
But little attention has been paid to how much more is being asked, and how much less :is really available to meet the tasks at hand. A recent congressional report detailed how personnel shortages, aging equipment, a lack of spare parts Spare parts, also referred to as Service Parts is a term used to indicate extra parts available and in proximity to the mechanical item, such as a automobile, boat, engine, for which they might be used.
Spare parts are also called “spares. , and a declining quality of life in the military, combined with a "dramatically increased workload due to increased operations" is seriously impacting the readiness of U.S. armed forces. Chair Spence Warns of Worsening Military Readiness, Gov't Press Release, Apr. 9, 1997, available in 1997 WL 4431299; Tom Bowman Tom Bowman may be:
bronchus-associated lymphoid tissue.
BALT Bronchiole-associated lymphoid tissue, see MALT . SUN, April 9, 1997, at A3, available in 1997 WL 5506102 (noting that personnel totals have dropped from 2,000,000 in 1990 to 1,500,000 in 1997, and that many sailors and soldiers earn less than the cost of living); see also James Kitfield, Danger Zone, NATL NATL National
NATL North Atlantic . J., 905 (1997) (detailing the numerous obligations and conflicts involving the U.S. military in the Mediterranean region and Africa).
(114) See Natural Resource Management on Military Lands Hearing, supra note 8, at 76 (statement of Brigadier General Stewart W. Wallace) (noting that the "footprint of the modern battlefield is increasing in size, due to the increasing range and lethality of modern weapons systems'); see also H.R. REP. No. 102-1031, at 8 (1992) (noting that "the 1988 report of the Commission on Base Realignment and Closure Base Realignment and Closure (or BRAC) is a process of the United States federal government directed at the administration and operation of the Armed Forces, used by the United States Department of Defense (DoD) and Congress to close excess military installations and realign indicated that new weapons require greater expanses of real estate and air space for training.") (internal quotations omitted).
(115) See National Resource Management on Military Lands: Hearing on H.R. 3300 and H.R. 2080 Before the Subcomm. on Military Installations and Facilities of the House Comm. on Armed Services, June 29, 1994, available in 1994 WL 14189634, at 1 (opening statement of Rep. Duncan Hunter, Ranking Republican, Subcommittee on Military Installations and Facilities).
(116) Id. at 2. Land-based training also requires ever-increasing amounts of space. See National Resource Management on Military Lands Hearing, supra note 8, at 37 (statement of Sheri W. Goodman) (observing that the 5000-acre limit imposed by the Engle Act, above which congressional approval must be obtained, is too restrictive for armored or heavy mechanized mech·a·nize
tr.v. mech·a·nized, mech·a·niz·ing, mech·a·niz·es
1. To equip with machinery: mechanize a factory.
2. brigade-level exercises).
(117) For example, the 79 Tomahawk tomahawk [from an Algonquian dialect of Virginia], hatchet generally used by Native North Americans as a hand weapon and as a missile. The earliest tomahawks were made of stone, with one edge or two edges sharpened (sometimes the stone was globe shaped). cruise missiles cruise missile, low-flying, continuously powered offensive missile designed to evade defense systems. Although the German V-1 (1944) was a simple cruise missile, the cruise missile did not realize its potential until the 1970s, when the United States sought to that the U.S. fired on targets in the Sudan and Afghanistan in August 1998 in response to terrorist bombings of the U.S. embassies in Kenya and Tanzania, have a 1000-mile range. David A. Fulghum, Secrecy About Raids Hints More to Come, AVIATION WK. & SPACE TECH., Aug. 31, 1998, at 30 (noting that the missiles put no aircrews at risk of death or capture, and discussing its Global Positioning System Global Positioning System: see navigation satellite.
Global Positioning System (GPS)
Precise satellite-based navigation and location system originally developed for U.S. military use. guidance mechanism).
(118) See generally Paul Lewis Paul Lewis may refer to one of the following
(119) See Natural Resource Management on Military Lands Hearing, supra note 8, at 76 (statement of Brigadier General Stewart W. Wallace) (noting that an "Army must train as it fights").
(120) See infra note 121.
(121) For general critiques of congressional processes similar to those described here, see REMAKING re·make
tr.v. re·made , re·mak·ing, re·makes
To make again or anew.
1. The act of remaking.
2. Something in remade form, especially a new version of an earlier movie or song. CONGRESS: CHANGE AND STABILITY IN THE 1990S (James A. Thurber James A. Thurber is Distinguished Professor of Government and Director of the Center for Congressional and Presidential Studies at American University in Washington, D.C.. He was the principal investigator of a seven year grant from The Pew Charitable Trusts to the Campaign & Roger H. Davidson eds., 1995); CAN CONGRESS BE FIXED? (Peter Robinson Several notable people are called Peter Robinson:
(122) When Congress was unable to make the necessary decisions to close bases that were no longer required, it delegated the job to an independent, nonpartisan commission. But this solution only lasted for a brief time, as a second and third round of closings were short-circuited by political considerations on Capitol Hill, in which President Clinton was complicit com·plic·it
Associated with or participating in a questionable act or a crime; having complicity: newspapers complicit with the propaganda arm of a dictatorship. . See, e.g., Congress Balks on Base Closings, ROCKY MT. NEWS, June 29, 1998, at 36A, available in 1998 WL 7948697; Jim Myers Jim Myers was the head football coach at Iowa State University in 1957. At Iowa State, he compiled a 4-5-1 record. He later coached at Texas A&M from 1958 to 1961. His record there stands at 12-24-4. , Base Protection Clause OK'd, TULSA WORLD The Tulsa World is the daily newspaper for the city of Tulsa, Oklahoma, and is the second-most widely circulated newspaper in the state, after The Oklahoman. The World is the primary newspaper for the northeastern and eastern portions of Oklahoma. , June 26, 1998, at 4, available in 1998 WL 11142811. It is hardly a novel proposition that the political process is less able to achieve optimal outcomes to certain problems over others. This is especially true when congressional members lack expertise in a given area. It is interesting to note along those lines that fewer members of the current Congress have served in the military than at any time in the nation's history. See Okerstrom, supra note 4, at 53.
(123) For example, the military long insisted it did not require the expensive and fragile B-2 Bomber, which Congress nevertheless funded due to political considerations. See Sally Buzbee, B2-s Revival Tied to Lobby's Power in Congress, STAR-LEDGER, Dec. 28, 1995, available in 1995 WL 11809166 (detailing Congress's decision to spend more on the B2 bomber, "something the Pentagon didn't want"). Perhaps one of the preeminent pre·em·i·nent or pre-em·i·nent
Superior to or notable above all others; outstanding. See Synonyms at dominant, noted.
[Middle English, from Latin prae examples of the military being denied an effective tool it claimed essential to national defense is the case of the United States, a "supercarrier' desired by the Navy in the late 1940s. The carrier was canceled after a contract for its construction had been let, and its keel keel
1. the ventrally directed large surface of the bird's sternum, the site of attachment of the major muscles of flight. Called also carina.
2. the prominent area over the sternum in Dachshunds. laid, a victim of a well-documented political war. See MICHAEL T. ISENBERG, SHIELD OF THE REPUBLIC 146-62 (1993).
(124) See Buzbee, supra note 123. Because "the B2 (bomber) is assembled not only by Northrop Grumman Northrop Grumman Corporation (NYSE: NOC) is an aerospace and defense conglomerate that is the result of the 1994 purchase of Grumman by Northrop. The company is the third largest defense contractor for the U.S. but by thousands of other companies all over the country," many members were compelled to vote to purchase it over military objections. Id.
(125) See supra Part II.
(126) See supra text accompanying note 102.
(127) See Natural Resource Management on Military Lands Hearing, supra note 8, at 78 (statement of Brigadier General Stewart W. Wallace) ("[I]t is critical for mission readiness that the Army retain flexibility."); id. at 70-76 (statement of Frank J. Colson).
(128) See generally H.R. 2080, 103d Cong. [sections] 4 (1994).
(130) Cf. PARKER, supra note 121, at 165-85.
(131) See Rene Romo, Bombing Range for Germany Proposed in N.M., Denver Post, June 7, 1998, at B2, available in 1998 WL 6113044 (noting the alliance of environmentalists and ranchers opposing the Air Force Plan). Recently, ranchers have filed suit against the Air Force to block the expansion. Ranchers Sue Air Force to Halt Plans for Training Flights Over NM, DALLAS MORNING NEWS, Sept. 3, 1998, at A36, available in 1998 WL 13099716; Patrick Armijo, Ranchers, Air Force Start Talks, ALBUQUERQUE J., Nov. 7, 1998, at C3, available in 1998 WL 16512113 ("[R]anchers contend the increased flights would harm their property values, decrease the economic efficiency of their ranches and disturb their tranquil, rural lifestyle.").
(132) Romo, supra note 131, at B2.
(134) See Jon Welner, Natural Communities Conservation Planning: An Ecosystem Approach to Protecting Endangered Species, 47 STAN. L. REV. 319, 327-29, 336 (1995) (detailing the deficiencies of a species-by-species approach to environmental protection).
(135) Id. at 336 (to continue the ESA analogy, a few charismatic species receive over half of the funding allotted al·lot
tr.v. al·lot·ted, al·lot·ting, al·lots
1. To parcel out; distribute or apportion: allotting land to homesteaders; allot blame.
2. to all endangered species).
(136) Id. at 327-30.
(137) See Romo, supra note 131, at B2 (noting that despite the Air Force's statement that they require the bombing range to train the German Luftwaffe Noun 1. German Luftwaffe - the German airforce
air force, airforce - the airborne branch of a country's armed forces , there is considerable opposition to the project).
(138) The military's instinct in matters before Congress is to defend, citing nebulous "national security" grounds, and to give no quarter, adopting a classic "slippery slope 'slippery slope' Medical ethics An ethical continuum or 'slope,' the impact of which has been incompletely explored, and which itself raises moral questions that are even more on the ethical 'edge' than the original issue " model of policy debate. See Natural Resource Management on Military Lands Hearing, supra note 8, at 70 (statement of Grace Bukowski, The Rural Alliance for Military Accountability) ("[The military's] policy continues to be `Decide, Announce and Defend.' This attitude simply does not fly with the American public in the 1990s. DoD must reform, totally, their internal culture with respect to public participation."). Part of this posture is undoubtedly a holdover hold·o·ver
One that is held over from an earlier time: a political advisor who was a holdover from the Reagan era; a family tradition that is a holdover from my grandparents' childhood.
Noun 1. from the Cold War, when such a policy was sufficient to achieve legislative goals, but it is also reasonable to speculate that it stems from fears that any concession it may make will ultimately be applied permanently to all military landholdings, thus limiting its future flexibility to adjust its training activities as circumstances require. See supra notes 102-03 and accompanying text.
(139) See supra Part II.D.
(140) H.R. 2080, 103d Cong. [sections] 6 (1994).
(141) Natural Resource Management on Military Lands Hearing, supra note 8, at 61 (statement of Matt Millenbauch, Acting Chief of Staff, Office of the Assistant Secretary for Land and Minerals Management, Department of the Interior).
(143) See PARKER, supra note 121, at 46 (discussing the unpopularity of Congress).
(144) With the end of the Cold War, the public quickly decided that a "peace dividend" should be generated from military cutbacks, and strong support for decreased military spending and power in general has been a dominant theme of the 1990s. See Sonni Efron & Dan Weikel, Majority Says Defense Cut is Worth the Pain, L.A. TIMES, Apr. 19, 1992, at 1 (noting the "broad support for deep defense cuts"). The issue was an important one in the first post-Cold-War presidential campaign, with voters favoring Bill Clinton's plan to cut defense spending five percent more than President George Bush believed necessary. See Clinton's Positions Fare Better than Bush's in Poll, DES MOINES Des Moines, city, United States
Des Moines (dĭ moin`), city (1990 pop. 193,187), state capital and seat of Polk co., S central Iowa, at the junction of the Des Moines and Raccoon rivers; inc. REG., Sept. 21, 1992, at 2, available in 1992 WL 5093086. While there are some signs that this trend is reversing, it is relatively clear that the public continues to view military requirements as a lower priority than in past decades. See A. Marshall Acuff, Financial Strategy--A Defensive Opportunity, FORBES, NOV. 2, 1998, at 383 (noting a recent poll showing 60% of respondents favoring some increase in defense spending); Okerstrom, supra note 4, at 53-54 (describing vehement public opposition to military land uses). While some have suggested that improved communications efforts by the military may help raise the public's awareness and respect for military needs, it seems unlikely that, short of a major war, the paradigm shift A dramatic change in methodology or practice. It often refers to a major change in thinking and planning, which ultimately changes the way projects are implemented. For example, accessing applications and data from the Web instead of from local servers is a paradigm shift. See paradigm. in public thinking will be dramatically altered. Id. at 55 (proposing a military Joint Office on Ranges and Airspace that would "build essential trust with the public").
(145) See Okerstrom, supra note 4, at 53.
(146) There is some evidence that congressional goodwill may have been further eroded e·rode
v. e·rod·ed, e·rod·ing, e·rodes
1. To wear (something) away by or as if by abrasion: Waves eroded the shore.
2. To eat into; corrode. as a result of the military's attempted exploitation of a loophole An omission or Ambiguity in a legal document that allows the intent of the document to be evaded.
Loopholes come into being through the passage of statutes, the enactment of regulations, the drafting of contracts or the decisions of courts. in the Engle Act. This loophole allows the military to escape the requirement that Congress approve every withdrawal of more than 5000 acres. The Air Force, for instance, has proposed that the state of Idaho obtain a 25,000 acre parcel the military desires for a bombing range, build the range for its Air National Guard unit, and then lease it back to the Air Force. See Military Land Reform Hearing, supra note 8, at 104-06 (statement of Lindsey Manning); id. at 366 (statement of Bob DiGrazia, Foundation for North American Wild Sheep) (calling this "an elaborate ruse Ruse (r`sĕ), city (1993 pop. 170,209), NE Bulgaria, on the Danube River bordering Romania. The chief river port of Bulgaria, it is also an industrial and communications center. " that constitutes a "carte blanche raid of public lands"). DoD may have attempted a similar maneuver in Nevada in 1990 when the Nevada National Guard The Nevada National Guard consists of the:
tried to obtain control of more than 600,000 acres of public lands without Engle Act approval. See Natural Resource Management on Military Lands Hearing, supra note 8, at 106-07 (statement of Grace Bukowski).
(147) See Okerstrom, supra note 4, at 53 (quoting Rep. Bruce Vento Bruce Frank Vento (October 7, 1940–October 10, 2000), American politician, was a Democratic-Farmer-Labor member of the United States House of Representatives from 1977 until his death in 2000, in the 95th, 96th, 97th, 98th, 99th, 100th, 101st, 102nd, 103rd, 104th, 105th, and ).
(149) One of the leading spokespersons for what may best be termed the antimilitary environmentalist movement summed up that movement's clarion call clarion call
strong encouragement to do something , expressing these very sentiments. See Natural Resource Management on Military Lands Hearing, supra note 8, at 104. (statement of Grace Bukowski) ("[The military's] policy continues to be `Decide, Announce and Defend.' This attitude simply does not fly with the American public in the 1990s. DoD must reform, totally, their internal culture with respect to public participation."); see also DYCUS, supra note 88, at 185 (accusing the Cold-War-era military of shrouding shroud
1. A cloth used to wrap a body for burial; a winding sheet.
2. Something that conceals, protects, or screens: under a shroud of fog.
a. the environmental impact of its activities in secrecy and bureaucracy).
(150) See supra text accompanying notes 66-71.
(151) See Okerstrom, supra note 4, at 52 (arguing that "[r]educed budgets and weakened political clout in Congress and among the population as a whole make `going it alone' too risky").
(152) See Timothy Noah Timothy Noah is an American journalist. He is a senior writer for Slate Magazine, where he writes the "Chatterbox" column. He is also a contributing editor to The Washington Monthly. Noah was previously an assistant managing editor at U.S. , Both Parties Paint Themselves Green, but Trend of Looser Environment Rules Is Seen Continuing, WALL ST. J., Sept. 9, 1996, at A-18.
(153) See Henry I. Miller, Gore Remakes Economics in His Own Image, WALL ST. J., May 13, 1997, at A-22.
(154) See John J. Fialka & Jackie Calmes, For Treaty's Backers, Delay in U.S. Vote Could Help, WALL ST. J., Dec. 12, 1997, at A-20 (describing the Kyoto Treaty's bleak prospects in the Senate). So too, the various attacks on, and the relative unpopularity of, the Endangered Species Act have necessitated the development and implementation of Habitat Conservation Plans, which allow greater flexibility and reduce the burden on private landowners. See Marianne Lavelle, Feds Settle to Save Act and Species but Critics Say Deals May Hurt Not Help Endangered, NAT'L L.J., Dec. 16, 1996, at Al.
(155) Environmental leaders are often quick to pay lip service lip service
Verbal expression of agreement or allegiance, unsupported by real conviction or action; hypocritical respect: to national security needs, but they seem to offer little more than a shrug when faced with the problem of supplying the space for necessary military testing. See Military Land Reform Hearing, supra note 8, at 150 (statement of Karl Gawell).
Few would dispute the importance of providing sufficient space to ensure military preparedness. Moreover, we recognize that the military cannot conduct exercises in heavily populated areas. The sad fact is, however, that there is less and less open space in this country, and the competition for its use grows more intense every day.
(156) The prototypical modern example is the environmental damage wrought on Kuwait by the invading army of Saddam Hussein's Iraq. The Iraqis dynamited 727 oil wells in Kuwait, which resulted in one of the worst environmental catastrophes of all time. The destruction led to huge spills of oil, estimated at 11 million barrels, into the Persian Gulf Persian Gulf, arm of the Arabian Sea, 90,000 sq mi (233,100 sq km), between the Arabian peninsula and Iran, extending c.600 mi (970 km) from the Shatt al Arab delta to the Strait of Hormuz, which links it with the Gulf of Oman. and smoke from well fires that blackened black·en
v. black·ened, black·en·ing, black·ens
1. To make black.
2. To sully or defame: a scandal that blackened the mayor's name.
3. the sky from the Gulf to the Himalayas. See Kuwait Environ Disaster Worst Ever Experienced, KUWAIT TIMES The Kuwait Times, established in 1961 is the first English-language daily newspaper in the Persian Gulf. The thirty-six-page broadsheet provides in-depth reporting on local events and business news, analysis and editorials on local, regional, and international issues, and , Oct. 21, 1998, available in 1998 WL 8068217. More than 60 million barrels of oil seeped into the soil of the tiny desert kingdom, creating 300 oil lakes which remain, eight years later. Kuwait: Update on Environmental Issues, INT'L MARKET INSIGHT REP., Feb. 24, 1998; available in 1998 WL 8068217. Indeed, warfare itself--which a credible military can help deter--is arguably the environment's worst enemy. See Danielle Knight, Protecting the Environment From War, INTER PRESS SERVICE Inter Press Service (abbreviated: IPS) is a global news agency. Its main focus is the production of independent news and analysis about events and processes affecting economic, social and political development. ., June 11, 1998, available in 1998 WL 5987714 (noting that in war "[p]eople's water supply is poisoned, and their air fouled ... [b]irth defects multiply, chronic and acute suffering increases, and a host of cancers and respiratory illnesses Noun 1. respiratory illness - a disease affecting the respiratory system
respiratory disease, respiratory disorder
adult respiratory distress syndrome, ARDS, wet lung, white lung - acute lung injury characterized by coughing and rales; inflammation of the multiply premature deaths Premature Death occurs when a living thing dies of a cause other than old age. A premature death can be the result of injury, illness, violence, suicide, poor nutrition (often stemming from low income), starvation, dehydration, or other factors. ").
(157) See supra note 8 and accompanying text.
(158) See discussion infra Part IV.B.
(159) Military Lands Withdrawal Act of 1986, Pub. L. No. 99-606, [sections] 8, 100 Stat. 3457, 3464-66.
(160) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).
(161) Id.; Karin P. Sheldon, Habitat Conservation Planning: Addressing the Achilles Heel Achilles heel
a small but fatal weakness [Achilles in Greek mythology was killed by an arrow in his unprotected heel]
Achilles heel n → talón m de Aquiles of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 279, 283 (1998).
(162) 16 U.S.C. [sections] 1539(a)(1)(B) (1994).
(164) Id. [sections] 1539(a)(2)(A).
(166) Id. [sections] 1539(a)(2)(B).
(167) See generally Office of the Secretary, U.S. Dep't of the Interior, Administration's New Assurance Policy Tells Landowners: "No Surprises" in Endangered Species Planning, Press Release, Aug. 11, 1994, available in 1994 WL 440313 [hereinafter Dep't of the Interior] (discussing the "no surprises" policy of the Department of the Interior); U.S. FISH AND WILDLIFE SERVICE & NATIONAL MARINE FISHERIES SERVICE The U.S. National Marine Fisheries Service (NMFS) is a United States federal agency. A division of the National Oceanic and Atmospheric Administration (NOAA) and the Department of Commerce, NMFS is responsible for the stewardship and management of the nation's living marine , ENDANGERED SPECIES HABITAT CONSERVATION HANDBOOK 3-41 (1996) [hereinafter CONSERVATION PLANNING HANDBOOK] (discussing the "safe harbor" provision).
(168) Dep't of Interior, supra note 167, at * 1.
(169) See CONSERVATION PLANNING HANDBOOK, supra note 167, at 3-41.
(170) See, e.g., Habitat Conservation Plans Called Inadequate, ORANGE COUNTY REG., July 21, 1998, at A4, available in 1998 WL 2639233; Tom Uhlenbrock, Clinton Administration Noun 1. Clinton administration - the executive under President Clinton
executive - persons who administer the law Has `Junked the Law,' Critics Charge, ST. LOUIS POST-DISPATCH The St. Louis Post-Dispatch is the only major city-wide newspaper in St. Louis, Missouri. Although written to serve Greater St. Louis, the Post-Dispatch is one of the largest newspapers in the region, and is available and read as far west as Springfield, Missouri. , May 9, 1997, at 3A, available in 1997 WL 3340841 (noting criticism of the increase in HCPs). Nevertheless, since 1994, 225 HCPs have been approved by the Department of the Interior, while 200 additional plans are in development. See U.S. Fish & Wildlife Serv., Dep't of the Interior, First Four Awards in $6 million HCP Land Acquisition Program are Announced in California, Florida, Texas and Utah, News Release, Feb. 14, 1997, available in 1997 WL 67247, at *1; Report Shows Drawbacks of Habitat Conservation Plans, Endangered Species Bill, U.S. Newswire U.S. Newswire is a U.S. national news release wire service established in 1986 and distributes media materials on behalf of a variety of customers particularly the U.S. government and non-profit agencies.
U.S. , Feb. 10, 1998, available in 1998 WL 5682902.
(171) See Diner, supra note 47, at 161 (presenting several ESA case studies and discussing the present Army environmental program).
(172) See supra text accompanying notes 57-61.
(173) See, e.g., Natural Resource Management on Military Lands Hearing, supra note 8, at 7 (statement of Donna M. Heivilin, Director, Defense Management and NASA, National Security' and International Affairs, United States General Accounting Office).
(174) As noted supra, this Article does not propose that the military's responsibilities under the ESA should be impacted, nor would its duty under the National Environmental Policy Act (NEPA) to prepare an environmental impact statement (EIS (1) (Executive Information System) An information system that consolidates and summarizes ongoing transactions within the organization. It provides top management with all the information it requires at all times from internal and external sources. ) for the relevant lands be changed. The findings of an EIS would be an important part, indeed a necessary precursor, to negotiations. See National Environmental Policy Act of 1969, 42 U.S.C. [sections] 4332(2)(C) (1994). Only BLM's mandate under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. [subsections] 1701-1782 (1994), to develop plans for and manage lands in harmony with the concepts of "multiple use" and "sustained yield," as reflected in the specific multiple use guidelines of the MLWA--highly discretionary notions that may involve any number of differing policy choices, is directly implicated im·pli·cate
tr.v. im·pli·cat·ed, im·pli·cat·ing, im·pli·cates
1. To involve or connect intimately or incriminatingly: evidence that implicates others in the plot.
2. . 43 U.S.C. [sections] 1732 (1994).
MLA negotiations are, or would be with a few surgical amendments, in harmony with FLPMA's philosophy and intent. Under the MLA proposal, the Secretary of the Interior would still be "developing" a land use plan as required by FLPMA, only the mechanism for the plan's development would change. See 43 U.S.C. [sections] 1712(a) (1994) ("The Secretary shall, with public involvement ... develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands."). Likewise, the Secretary would continue to fulfill his statutory duty to "determine" whether the renewal of the withdrawn military land parcels is necessary; he would merely do so through the device of MLA negotiations. 43 U.S.C. [sections] 1714(f) (1994).
One of the major goals of FLPMA is that comprehensive rules and regulations be developed "after considering the views of the general public," and that procedures be developed that "assure adequate third party participation." 43 U.S.C. [sections] 1701(a)(5) (1994). This is in fact furthered by the open nature of the MLA process. 43 U.S.C. [sections] 1701(a)(5) (1994). MLAs fit nicely into FLPMA's requirement that there be "public involvement," defined to mean "the opportunity for participation by affected citizens in rulemaking, decision-making, and planning with respect to the public lands, including public meetings or hearings held at locations near the affected lands, or advisory mechanisms, or other such procedures as may be necessary." 43 U.S.C. [sections] 1702(d) (1994) (emphasis added).
However, as part of the amendment necessary to alter the MLWA, it would be necessary to amend the section of FLPMA that limits the renewal period of withdrawn lands to a maximum of 20 years. This Article's proposal suggests a term of 25 years to serve as an incentive for the military to engage in negotiations. 43 U.S.C. [sections] 1714(f) (1994).
(175) See supra note 174.
(176) Under the ESA, a landowner submits an HCP directly to the Department of Interior; while there is an opportunity for public comment, no other public participation is provided for. Endangered Species Act of 1973, 16 U.S.C. [sections] 1539(a)(2) (1994).
(177) Military Land Withdrawal Act of 1986, Pub. L. No. 99-606, [sections] 5(b), 100 Stat. 3457, 3462-63.
(178) In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , BLM would review the MLA solely to ensure that its terms do not reduce the military's responsibilities under the ESA or any other environmental law. It would not substantively examine the MLA for purposes of determining if the multiple interests (grazing, wildlife protection, etc.), listed in the MLWA--which are reflective of the broad, multiple-use vision of FLPMA--are "properly" implemented. See supra note 174.
(179) The 25 year figure is not an excessively lengthy amount of time, at least as measured by precedent. As discussed in Part II, many withdrawals have been effectively permanent, or at least indefinite, in scope. See supra text accompanying notes 21-29.
(180) See supra text accompanying notes 98-111.
(181) See Natural Resource Management on Military Lands Hearing, supra note 8, at 68 (statement of Stewart W. Wallace) (noting that the Army's professional land managers "are specifically trained to deal with the unique demands and problems associated with military training lands").
(182) See John Kostyack, Habitat Conservation Planning: Time to Give Conservationists and Other Concerned Citizens a Seat at the Table, ENDANGERED SPECIES UPDATE, July/Aug. 1997, at 51; Michael Lipske, Giving Rare Creatures a Fighting Chance one dependent upon the issue of a struggle.
See also: Fighting , NAT'L WILDLIFE, Feb.-Mar. 1998, at 21 ("[I]n regard to many HCPs, the public has little to say in how the plans are developed.").
(183) See, e.g., Tom Melling, Bruce Babbitt's Use of Government Dispute Resolution: A Mid-Term Report Case, 30 LAND & WATER L. REV. 57 (1995).
(184) See Lujan v. Defenders of Wildlife Lujan v. Defenders of Wildlife, , 504 U.S. 555 (1992). Under Lujan, standing requires the following: 1) that the plaintiff has suffered an injury in fact, an invasion of a legally protected interest that is concrete, , was a United States Supreme Court case in which the court held that a group of wildlife conservation and other environmental organizations lacked standing to challenge particularized par·tic·u·lar·ize
v. par·tic·u·lar·ized, par·tic·u·lar·iz·ing, par·tic·u·lar·iz·es
1. To mention, describe, or treat individually; itemize or specify.
2. , and actual or imminent; 2) that there be a causal connection between the injury and conduct that is the subject of the complaint; and 3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. This Article does not suggest that a rigid application of Lujan, where the Court rejected the plaintiffs' challenge to actions taken by the Secretary of Interior under the ESA, is appropriate for selecting stakeholders. However, a modified version of this test, which emphasizes the need for community connection, nearby lands, and legitimate threatened injury, would be necessary to serve a gate keeping function and thereby reduce the number of stakeholders to a manageable and practical total.
(185) Cf. Suellen Terrill Keiner, State and Local Innovations in Air Quality Control, 13 NAT. RESOURCES & ENV'T 413, 416 (describing successful processes involving diverse stakeholders and citizen task forces resulting in support for new air quality initiative).
(186) See supra Part III.D.
(187) This author is loathe to abandon the consensus requirement, however, as it seems that the effectiveness of the negotiating process hinges on the pressures that compel the achievement of an agreement. One of these pressures is the uncertainty that the military and environmentalists face in the legislative arena. The requirement of consensus also generates bargaining which helps push the parties toward meaningful concessions and, as a result, sustainable agreements. See infra text accompanying notes 192-96.
(188) See supra text accompanying note 122.
(189) See id.
(190) See supra note 174.
(191) It is perhaps only a slight exaggeration Exaggeration
legendary giant, hero of tall tales of the logging camps. [Am. Folklore: The Wonderful Adventures of Paul Bunyon]
trivial cause of a great quarrel. [Br. Hist. to say that the nation is experiencing a renaissance of federalism federalism.
1 In political science, see federal government.
2 In U.S. history, see states' rights.
Political system that binds a group of states into a larger, noncentralized, superior state while allowing them , with fundamental responsibilities being returned to state and local governments in a way unseen since before the New Deal. Cf. Joseph A. Scolaro, We Should Have More Powers, Governors Say They're Concerned About a Reversal of Federal Willingness to Turn Over More Functions to the States, WIS. ST. J., Aug. 2, 1998, at 1C, available in 1998 WL 14526824 (noting concerns of governors that the Clinton administration is revisiting this trend). Environmental power and responsibilities are also devolving to the state and local level. See John H. Cushman, Jr., Clinton Pushes Environmental Power-Sharing, N.Y. TIMES, Jan. 31, 1999, at A1 (describing proposals for expanded grants of conservation funds to states, payments to cities for controlling air pollutants pollutants
see environmental pollution. , and tax credits to make it cheaper for local authorities to issue bonds for environmental purposes).
(192) See NATIONAL ACADEMY OF PUB. ADMIN., THE ENVIRONMENT GOES TO MARKET' THE IMPLEMENTATION OF ECONOMIC INCENTIVES FOR POLLUTION CONTROL (1994); Elizabeth Glass Geltman & Andrew Skroback, Reinventing the EPA EPA eicosapentaenoic acid.
n.pr See acid, eicosapentaenoic.
n. to Conform with the New American Environmentality, 23 COLUM. J. ENVTL. L. 1, 27 (1998) (observing "[t]he `new environmentality' in America embraces the often conflicting desires to both protect our environment and limit government's burden on our economy and our freedoms").
(193) See supra note 182 and accompanying text.
(194) But, might the argument run, these are federal lands. They belong to all of us. Why should a private group have to pay to achieve environmental gains on these lands? The answer must simply be that the right purpose for which these lands are used is often difficult to determine. As the discretionary mandate of BLM indicates, land use decisions are often simply based on legitimate but arguable ar·gu·a·ble
1. Open to argument: an arguable question, still unresolved.
2. That can be argued plausibly; defensible in argument: three arguable points of law. value judgments. The question is really one of who decides. It is difficult to see why, in an era of great private sector technical sophistication, a federal agency is inherently better suited to make those judgments than the competitive market mechanism of MLA negotiations.
(195) Just as the Nature Conservancy Nature Conservancy, nonprofit organization established in 1951 to preserve or aid in the preservation of natural environments. It protects wilderness areas in the United States and Canada and is affiliated with similar groups in Latin America and the Caribbean. and other groups make land purchases to protect species, habitats, and unique areas, private market bargaining also has a role to play in MLA negotiations. Cf. H. Josef Hebert, Nature Group Saves 75 Key Ecosystems, L.A. TIMES, Sept. 24, 1995, at 3 (describing Nature Conservancy's `last great places' campaign, which aims to buy unique prairies, watersheds, streams, islands, and forests that are home to rare and endangered species and plants); Logan Harris, The Best Way to Protect Habitat May Be to Buy It, NEWS FROM INDIAN COUNTRY News From Indian Country is a nationwide newspaper published twice a month, offering, according to its web site, "national, cultural, and regional sections plus special interest articles, features, entertainment, letters, nationwide obituaries and births, and the most , May 31, 1998, at 10A.
(196) There is evidence that environmentalists and the military can find such an atmosphere productive. Recently, for instance, a coalition of citizens concerned over the impact of helicopter uses by the Marines at the Miramar Marine Corps Air Station in Southern California negotiated a deal that resulted in the Marines paying for a new air pollution study while retaining the ability to fly training missions. See James W. Crawley, Settlement Seen in Miramar Helicopter Suit; Marines to Restudy Air Pollution, UNION TRIBUNE, Feb. 23, 1999, at A1, available in 1999 WL 4054145.
(197) See supra Part III.B.
DARRIN HOSTETLER, J.D. Stanford Law School This article or section is written like an .
Please help [ rewrite this article] from a neutral point of view.
Mark blatant advertising for , using . , 1997. Clerk to the Hon. Joseph T. Sneed, U.S. Court of Appeals for the Ninth Circuit, 1998. The author is an associate with the law firm of Latham & Watkins in Southern California. The author wishes to thank Michele Hostetler for her love, patience, and support.