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Topic: Exemption to the Migratory Bird Treaty Act for the Department of Defense

STATUS AS OF 18 JANUARY 2005: The U.S. Fish and Wildlife Service has not yet issued the final rule.

BACKGROUND
The Department of Defense (DOD) conducts military preparedness activities that may impact bird species protected under the Migratory Bird Treaty Act. For a number of years, DOD asked the U.S. Fish and Wildlife Service (USFWS) for a take permit, but the USFWS refused to issue a permit, saying that the Migratory Bird Treaty Act does not allow for permits for the take of migratory birds incidental to otherwise legal activities. For the same reason, the USFWS does not issue permits for “incidental take” of birds resulting from logging, construction (habitat destruction, erection of buildings with glass that birds strike, telecommunications towers, wind farms, driving cars, applying pesticides to crops, or any other human activity that is not intended to take birds.

One of the military preparedness activities conducted by DOD involved practice bombing, and some of that practice bombing took place on Farallon de Medinilla, one of the islands comprising the Commonwealth of the Northern Marianas Islands (CNMI). Farallon is an uninhabited 200-acre island and its’ size is approximately 3 miles by 1/2 mile. The Farallon de Medinilla Target Range is located about 150 miles north of Guam and is leased from the Government of the Commonwealth of the Northern Marianas Islands. The range has been used since 1976 under an agreement between the United States and the Commonwealth of the Northern Mariana Islands. Farallon de Medinilla is classified as public land that is under lease by the US military from the Commonwealth. The Commonwealth of the North Marianas has a lease agreement with the US military that allows use of the island until 2075.

The island is an important nesting site for more than a dozen species of migratory birds, including some that are endangered. Farallon de Medinilla hosts colonies of Great Frigatebirds; Masked, Red-footed, and Brown Boobys; Red- and White-tailed Tropicbirds; White and Sooty Terns; Brown and Black Noddys; and other species of migratory seabirds. The island is the largest known nesting site for Masked Boobies in the Mariana and Caroline Islands. Birds are being killed when the military hits island with bombs, missiles, rockets, naval guns and other weapons. The Navy has said targets are placed away from primary bird habitat, and the Navy is budgeting $100,000 annually to enhance bird habitats on neighboring islands. The Navy has participated in two environmental impact studies, in 1975 and 1999, regarding military activities on the island.

In 2001, the Center for Biological Diversity sued the Secretary of Defense to stop the bombing practice on Farallon, saying that it violated the Migratory Bird Treaty Act. As has been the case in a series of well-intentioned but short-sighted lawsuits seeking to enforce the Migratory Bird Treaty Act, the battle was won, but at great cost to the integrity of the MBTA: it resulted in Congressional action to exempt the DOD from the MBTA altogether.

Responding to that Congressional directive - Section 315 of National Defense Authorization Act., which required the Dept. of the Interior to propose a regulation that would permit the DOD to take birds of species protected by the Migratory Bird Treaty Act incidental to military preparedness exercises - the USFWS proposed a rule to implement this statute. The proposed rule (.pdf file), including the preamble and explanatory information was published on 2 June 2004.

Comments filed by the Ornithological Council are here (.pdf file).

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