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 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 In 2001, more than seven million acres that have been withdrawn from federal landholdings and reserved for military use over the last fifty years will be up for "renewal," as required by the Military Land Withdrawal Act of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) 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 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 it once did. It is a sentiment seemingly shared by Congress, which has revoked the virtual carte blanche 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 and regulation.(8) Some environmental activists profess 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 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.(12)

This Article will argue that this impending conflict is likely to lead to bad law and incoherent environmental policy. Participation in this counterproductive 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 milieu. 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 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 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 regulatory mechanism for withdrawn lands--centered around the Bureau of Land Management (BLM)--is largely ineffective. Third, it is clear that environmentalists have undervalued the military's legitimate needs, and in fact, the nation's security demands that adequate training areas be available. Fourth, and most importantly, 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 should take the form of amendments to the MLWA that provide for "opt-out" negotiations between all parties concerned over the dispensation 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 and provides an answer based on principles that emphasize decentralization 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 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 lands for, and from, specific uses.(16) Since shortly after Frederick Jackson .Turner declared the close of the American frontier in 1893, the President has had the ability to withdraw public lands covered with timber.(17) The Forest Reserve Amendment, which gave the President this power, slipped quietly through Congress as part of a general revision of the general land laws, but quickly became a powerful tool of the nascent naturalist movement.(18) Prompted by pioneering conservationists such as John Muir and Gifford Pinchot, 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 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 and theorize 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.

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.(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.(31)

The tug-of-war between the executive and legislative branches lapsed 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 by the separation of powers, 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.(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 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, and, in many ways, the period represented the high-water mark for land withdrawals.

By the late 1950s, however, Congress began to question the military's needs and to reassert 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 (FLPMA).(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, 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 (ESA), 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 of congressional authority, the conservationist movement was undergoing an incremental 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 of the 1960s and 1970s. While admittedly an oversimplification, 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 and later in opposition to the presidency of Ronald Reagan, who environmentalists believed was not predisposed 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 the environmental movement further away from the executive branch.(52) By the time the Reagan administration 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, 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 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 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: land withdrawals began at the prompting of environmentalists exercising influence over the executive branch, acting in opposition to other special interests wielding 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, 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 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 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 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 acting to preserve the lands under their supervision. One widely noted success story is the Army's Integrated Training Area Management Program (ITAM), 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 red cockaded woodpecker.(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 on the world's oceans.(87)

Nor should the significant environmental benefits of public lands being classified as military possessions be overlooked.(88) While it may seem incongruous to suggest that a bombing range 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, as the expansive size of military installations are often dictated by security and safety requirements rather than a need to tromp 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 and is "the last major redoubt against the development that threatens to make Southern California one big tract of suburban homes from the Mexican border to Santa Barbara."(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 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 to environmental concerns, and covets the public relations 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.(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 entity with one clear mission to defend the nation and its interests, BLM is a decentralized 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 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. The Bureau's position on any given issue is also skewed 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 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 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, for instance, require eight times the maneuvering space as did World War II airplanes.(115) It is expected that the necessary space for the next generation of warplanes will double, to eighty nautical miles.(116) Stand-off weapons, such as long-range missiles, which in combat help limit exposure of Americans to hostile fire 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.(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 variety. A sober, dispassionate 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 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 example of this phenomenon.(122) So too, the pernicious 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 of military hardware across the country ensure that each congressperson 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, 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 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 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. A picturesque, wildlife-rich area southeast of Almogordo, New Mexico, 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 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. However, less visible, less emotionally salable 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 protection, where consensus to protect a "fuzzy" or "cute" species, such as the baby seal, is easy to achieve, while protections for less photogenic 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 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.(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 with toxic wastes, 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 do not fully understand why, with the demise of the Soviet threat, fairly dramatic reductions in military potency, including lands, is not possible.(145) This pervasive sentiment, mixed with the increasing power of environmentalists and the end of the long struggle with the Soviet Union that often served as a legislative trump card, has led to diluted congressional support.(146) Congressional allies for all things military are disappearing, replaced by influential members who opine that "[a]fter nearly two generations, the era of the cold war has come to an end ... the nation is actively reviewing the array of national policies and priorities America adopted in response to the tension and danger of the last forty years."(147) Such statements are increasingly followed by calls for the restriction of military land use.(148) In such a climate, a stubborn determination to cling to 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 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 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 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 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 and the agreement given full legal effect.(159) What might such an amendment, which would essentially privatize 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 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, 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 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 more resources to aid species on their lands, even if the needs of the species change over time.(168) So too, a "safe harbor" 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 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 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 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 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 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" 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 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, 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 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 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 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 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 purposes would be admitted. In selecting the stakeholders, the Secretary of Interior would ideally apply objective admission criteria 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 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 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 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, 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 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 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 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)

V. CONCLUSION

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 system of federal management. This Article does not suggest that stakeholder 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 notes 80-81 and accompanying text.

(4) See generally Eric Okerstrom, No Home on the Range, NAVAL PROC., 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. on Natural Resources, 103d Cong. 152 (1994) [hereinafter 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, 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: 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 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, 12 J. ENERGY NAT. 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 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, 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 that changes the designation of a described parcel from `available' to `unavailable' for homesteading 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 and not in the legal sense described in this footnote.

(17) Frank J. & Deborah E. Popper, 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, supra note 15, at 122-40; see also NATHAN MILLER, THEODORE ROOSEVELT: A LIFE 469-72 (1992). Congress also authorized Roosevelt and his successors to withdraw lands containing scenic and scientific curiosities under the Antiquities Act of 1906, 16 U.S.C. [subsections] 431-433, a power used to create the system of National Monuments.

(20) COGGINS & WILKINSON, supra note 13, at 241 ("From the beginning Presidents carved military reservations out of the public domain by executive order, arguably 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.

(23) Id.

(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.

(29) Id.

(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" 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 issued a new opinion in 1941 affirming the non statutory authority of the President to make `permanent' withdrawals of public lands as contrasted with the alleged `temporary' withdrawals of public lands to which the Pickett Act was then construed as limited.").

(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.").

(34) Id.

   [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.

Id.

(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, THE MANHATTAN PROJECT: THE. UNTOLD STORY OF THE MAKING OF THE ATOMIC BOMB 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, SHATTERED 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.

Id.

(37) See id. (implying that growing technological sophistication requires more space to train and test). Such early generation missiles included the Boeing CIM-10A "BOMARC," 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 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) (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 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, 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 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.

(50) Id.

(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 withdrawals for public lands); see also Robert Scheer, James Watt: Robin Hood 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 in Nevada, the 2.6 million-acre Barry M. Goldwater Air Force Range in Arizona, the Army's McGregor Range in New Mexico, the Fort Greely Maneuver Area, and the Fort Wainwright 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.

(58) Id.

(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 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, National Security and International Affairs 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.

(63) Id.

(64) Id.

(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 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) (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)).

(69) Id.

(70) Id.

(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 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.

(74) Id.

(75) Id.

(76) Proclamation No. 6920, 3 C.F.R. pt. 64 (1997); see also David Negri, Grand Staircase. 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 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 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, 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.").

(82) Id.

(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. Honigman & John P. Quinn, Navy Blue Goes Green, NAVAL PROC., Aug. 1988, at 56 (detailing efforts to protect whales from underwater concussion 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 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. 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 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: 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.").

(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.

Id.

(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 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.

(101) Id.

(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." 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.

Id.

(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, 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 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, 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, House Study Finds Readiness of Military at `Breaking Point'; Budget Cuts Combine with New Duties to Exhaust Resources, BALT. 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. 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 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 brigade-level exercises).

(117) For example, the 79 Tomahawk cruise missiles 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 guidance mechanism).

(118) See generally Paul Lewis, As the U.N. `s Armies Grow, The Talk is of Preventing War, N.Y. TIMES, Mar. 1, 1992, at A4 (noting growing U.S. participation in U.N. peacekeeping operations for humanitarian and other purposes).

(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 CONGRESS: CHANGE AND STABILITY IN THE 1990S (James A. Thurber & Roger H. Davidson eds., 1995); CAN CONGRESS BE FIXED? (Peter Robinson ed., 1995); GLENN R. PARKER, CHARACTERISTICS OF CONGRESS: PATTERNS IN CONGRESSIONAL BEHAVIOR 117-36 (1989).

(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. See, e.g., Congress Balks on Base Closings, ROCKY MT. NEWS, June 29, 1998, at 36A, available in 1998 WL 7948697; Jim Myers, Base Protection Clause OK'd, TULSA WORLD, 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 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 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 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).

(129) Id.

(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.

(133) Id.

(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 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, 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" 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 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).

(142) Id.

(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 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 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 as a result of the military's attempted exploitation of a loophole 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" 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 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).

(148) Id.

(149) One of the leading spokespersons for what may best be termed the antimilitary environmentalist movement summed up that movement's clarion call, 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 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, 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 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.

Id.

(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 and smoke from well fires that blackened the sky from the Gulf to the Himalayas. See Kuwait Environ Disaster Worst Ever Experienced, KUWAIT TIMES, 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., 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 multiply premature deaths").

(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 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).

(163) Id.

(164) Id. [sections] 1539(a)(2)(A).

(165) Id.

(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, 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 Has `Junked the Law,' Critics Charge, ST. LOUIS POST-DISPATCH, 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, 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) 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. 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, 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, 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, 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, particularized, 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 to say that the nation is experiencing a renaissance of federalism, 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, 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 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 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 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, 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, 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.