Length: 15103 words comment: Operational Encroachment: Woodpeckers and their Congressman name



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20 Temp. Envtl. L. & Tech. J. 219, *


Copyright (c) 2002 Temple Environmental Law & Technology Journal

Temple Environmental Law & Technology
Spring, 2002
20 Temp. Envtl. L. & Tech. J. 219
LENGTH: 15103 words
COMMENT: Operational Encroachment: Woodpeckers and their Congressman
NAME: Eric Montalvo
LEXISNEXIS SUMMARY:

... Congress' recognition of the problems of enforcement against federal facilities prompted it to incorporate citizen suit provisions in many federal environmental statutes and waivers of sovereign immunity. ... In his testimony before the Senate Armed Services Committee on encroachment issues and their impact on military readiness , Admiral Amerault described the deprivation of training "impact" as follows: When our vital ranges are not available for training because they are encumbered by encroachments, our state of readiness is at risk. ... Congress, in its efforts to address deepening concerns over the deterioration of our environment and historical non-compliance by federal facilities, enacted environmental legislation with the intent of reversing the effects of years of non-compliance and encouraging future compliance and prevention. ... As may be seen in the cases discussed below, the adversarial process results in blunt resolutions and compels the judiciary to choose sides between environmental stewardship and national security interests. ... In Aluli, the Protect Kahoolawe Association (PKA), sued the Secretary of the Navy (Navy), seeking declaratory relief and an injunction against the Navy's use of the island for bombing. ... The Governor, alleging harm to all residents of Vieques, sought to "enjoin the Navy from using any portion of its lands in Vieques ... for the purpose of carrying out military training operations." ... In this case, national security interests were preserved at the expense of an endangered species and judicial credibility.


HIGHLIGHT: Peace cannot be kept by force...it can only be achieved by understanding. n1
TEXT:

[*219] I. Introduction

A. The Sound of a Woodpecker

In the darkness, soldiers train in Fort Bragg, N.C. for ensuing battles. As the rain beats a rhythmic sound of war upon soft pines, another sound pierces the calm night sending shrills up the spines of some of the most highly skilled warriors in the world ... the pecking sound of the Red Cockaded Woodpecker (RCW). Private, a young soldier on his first training mission, hears the sound. Private relays a warning to his platoon leader who, in turn, communicates the finding to the officer-in-charge. The officer, a young lieutenant, halts the platoon. The lieutenant then proceeds to make his way into a weather resistant pouch nestled below his water soaked begriming outer layers of protective clothing. He unfolds a poorly laminated sheet of paper in which the ink is beginning to blur due to the unrelenting precipitation. The platoon lays waiting in a defensive position comforted by the soft pine needles carpeting the forest floor. The platoon leader looks on as the lieutenant feverishly [*220] glances over the paper. The platoon is already behind schedule and this delay will surely garner an unpleasant greeting by the commanding officer. The lieutenant sends out a two-man team to survey the area and they return with a negative report. The platoon is then motioned to move out - most unaware as to the mission necessity of suddenly befriending the uninviting forest floor.

Encroachment upon the nest of a Red-Cockaded Woodpecker - a species listed as endangered by the U.S. Fish & Wildlife Service - will halt training in an instant. The Army regulations promulgated, in order to protect the RCW and contained on that lieutenant's paper, describe what a soldier must do in the event they encounter a RCW or a marked cavity tree. n2 A claim of such an occurrence or any number of environmental violations in court may yield same result, albeit, on a much grander scale.

On September 11, 2001, the United States of America was changed forever as a country. Terrorists, allegedly associated with Osama Bin Laden, hijacked four civilian aircraft with the intention of using them as make-shift ballistic missiles. Two of the planes succeeded in crashing into each of the World Trade Center towers in New York City. Another slammed into the side of the Pentagon in Washington, D.C. The final plane contained heroic passengers who succeeded in foiling the hijackers plans and sadly sacrificed their lives for an untold many in eastern Pennsylvania. These terrorists acts are the most tragic our country has seen in its tender history. The enormity of the act has shaken the very foundations of our national identity. The nation has been compelled to face difficult questions, which may not allow for right or wrong answers. Some of the most hotly debated issues are how the nation will secure its people, and what freedoms will be sacrificed in the rabid search for [*221] resolutions providing for the safety of this country in the future. National security has taken a seat on the front row of America's consciousness. The employment of the armed forces has been and will be instrumental in the prosecution of this battle to preserve the greatest republic on earth.

The effectiveness of our armed forces may be captured by a basic truism, "you must practice how you will play." While America focuses on Osama Bin Laden, another battle is being waged on our home front. However, this "battle" is not between enemies. It is between two of the Nation's greatest resources: the armed forces and the environment. In a changing world where military technological advances require additional space for operations and where environmental studies reveal a horrific tale of destruction and irreparable harm, humanity must strike a careful balance in order to preserve the very earth and freedom we strive to protect.

Various statistics suggest that federal facilities "represent some of the most flagrant violations of our environmental statutes." n3 This realization is compounded by statistics that suggest that we live in a time where approximately 109 species a day become extinct. n4 Relatively speaking this rate of extinction is roughly equivalent to forty million times the rate of the extinction of the dinosaurs. n5

Congress' recognition of the problems of enforcement against federal facilities prompted it to incorporate citizen suit provisions in many federal environmental statutes and waivers of sovereign immunity. These provisions provide for, inter alia, the remedy of injunctive relief. Congress' incorporation of citizen suit provisions has facilitated its search for federal facility environmental compliance, and has proven to be very powerful tool of enforcement, indeed. More concisely stated, Congress has placed enforcement responsibilities for environmental compliance in the hands of citizens and special interests groups. The courts have been placed in an awkward position of determining whether national security interests or the interests of, for example, an endangered turtle will prevail. The hope is that Congress will realize that injunctive relief as applied to the Department of Defense is undesirable when national security interests are implicated - as in operational contexts.

B. Injunctive Relief - National Security Interest v. Environment

The focus of this paper is to suggest that there needs to be an alternative forum created to focus on environmental stewardship and compliance in lieu of wasting valuable resources and time on litigation, that bears no fruit. n6

[*222] In the struggle of competing interests between the military and the environment it operates in, the sword of injunctive relief is wielded against a shield of national security interests. n7 The inefficacy of seeking injunctive relief against the military during operations is best illustrated, for example, through a comparison of the policy considerations underlying the Endangered Species Act [hereinafter ESA] n8 versus military training. Courts must strike a balance - on one hand exists the preservation of an endangered species on the verge of extinction and, on the other, national security interests. n9 When these two interests come head-to-head in litigation, there can never be a win-win result. In fact, the adversarial process necessitates a "loser." n10 Utilizing an alternative dispute resolution forum would provide a situation where these interests could craft solutions relevant to the needs of all stakeholders. It would avert the imprecise blunt administration of judicial resolution and, instead, provide an opportunity for those involved to explore all relevant issues and concerns.

National security interests, when considered by the courts, have become the decisive factor in various denials of injunctive relief. n11 This clash of interests is complicated by the fact that a majority of the lawsuits seeking injunctive relief and compliance are not brought by the Environmental Protection Agency, but by states and citizens groups. n12 The problem lies in the fact that through [*223] citizen suit provisions and waivers of sovereign immunity, United States Armed Forces training and operations are subject to the equities of our court system. Arguably, the Armed Forces should only be subject to the direction of the Executive Branch and a unified chain of command. The potential for judicial intervention, especially in today's current climate of terror, must be reconsidered. Due to the inherent tension created by the adversarial process, compromise is rarely realized as evidenced by the voluminous record of litigation. Consequently, the interests of "both sides" become polarizing and the system becomes ineffectual as a means of achieving synergy between the Department of Defense and the environment in which it operates.

I will refer to a term "operational encroachment" n13 which is not yet officially recognized by the Department of Defense. Operational Encroachment is defined for purposes of this article as follows:


When a person and/or agency utilizes the Judicial Branch to pursue injunctive relief, or compensatory and/or punitive damages against the Department of Defense (DOD), for the purported purpose of pursuing statutory environmental compliance. n14

The practical results of an operational encroachment lawsuit seeking injunctive relief are to diminish the state of military readiness and negatively impact national readiness by depriving armed forces members of life sustainment training. Training for combat scenarios is requisite to accomplishing the Nation's mandate of engaging the enemy with minimal personal risk and collateral damage. Finally, these lawsuits can also have the effect of diverting taxpayer dollars allocated to the DOD from environmental compliance and proactive research efforts to battling suspect litigation.

Part II discusses the relevant distinctions of litigation focused on military expansionism compared with existing operations. Additionally, it considers what harm the granting of injunctive relief against the military would create. Part III discusses Congress' efforts toward federal facility compliance and the [*224] "birth" of citizen suit provisions. Part IV examines several operational encroachment lawsuits and why they are illustrative of why alternative dispute resolution process may better address the difficult choices which must be made. Finally, Part V explores the benefits of moving operational encroachment litigation out of the court systems and into alternative dispute resolution forums.

II. TURTLES, TREES, AND TANKS...WHO DOES THE LAW PROTECT?

A. National Security Interests: The relevant distinction between military expansion and existing operations

The interests of national security are not always raised when military interests "bump" into environmental concerns. As such, injunctive relief may, under certain circumstances, provide an appropriate remedy. One such circumstance occurs when the Department of Defense is pursuing "growth." Here, the friction point between DOD interests and the environment is expected and provides a practical point to systematically structure relationships that will foster the pursuit of long-term compliance. It is in this context, and typically under the Administrative Procedures Act [hereinafter APA] and the National Environmental Policy Act of 1969 [hereinafter NEPA] n15, that environmentalist concerns have achieved frequent success in attaining some delay in DOD actions. n16 This is compared to issues that are raised in an operational context where the grant of an injunction would effectively halt or negatively impact existing military training. It is under these latter circumstances that the court has been reluctant to grant injunctive relief. n17 The courts have typically held that assertion of an impact on national security will sustain the public interest prong of the standard for injunctive relief. n18

[*225] In order for the U.S. military to fulfill and sustain its current operations, it must train in as realistic a fashion as possible, commensurate to the threats and potential combat scenarios presented by an ever changing global political climate. n19 The recent murder of thousands of American citizens amplifies the fact that our armed forces must be in a constant state of vigilance around the world. n20 The military must also consider the future of warfare and developing technologies. An increase in training and education has been necessitated by significant increases in deployments and the development of new war doctrines. n21

As state-of-the-art technologies have emerged, the requirement for expanded training facilities has also increased. n22 This increase of activity and land usage requirements is seemingly in direct conflict with the ecosystems and wildlife present in the respective operational areas. Under circumstances which the DOD is seeking new land, water, or air to satisfy emerging [*226] requirements, the highest scrutiny must be applied to ensure that all stake holders can "live" with each other. This article, however, focuses on actions in which the DOD is engaged after they have established a presence. The contrast is then drawn between the initial establishment of a DOD presence within the environment and after that presence is established, maintaining compliance.

B. Granting Injunctive Relief Against the Military

The judicial granting of injunctive relief for an administrative error resulting in temporary or permanent cease of military operations is of no small consequence. The harshness of a choice between environmental concerns and the deprivation of essential training from the men and women of the Armed Forces cannot be what Congress intended by the incorporation of injunctive relief in the citizen suit provisions of the various environmental statutes. In his testimony before the Senate Armed Services Committee on encroachment issues and their impact on military readiness n23, Admiral Amerault described the deprivation of training "impact" as follows:

When our vital ranges are not available for training because they are encumbered by encroachments, our state of readiness is at risk. This is complicated by the fact that encroachment issues are complex, varied, and involve multiple federal, state, and local agencies, the Congress, non-governmental organizations and the public. In dealing with its effects, we have borne a significant increase in administrative and human costs (time away from home, flight hour costs, travel expenses etc.) to achieve an acceptable level of readiness. In some instances, we have been unable to achieve the desired level.

Encroachment negatively affects readiness by reducing the number of available training days; reducing training realism as tactics are modified (altitudes, airspeeds, profiles) ... causing a loss of range access altogether (either temporary or permanent); decreasing scheduling flexibility and complexity ... and increasing time away from home during training prior to deployment. Encroachment is often gradual and can go unnoticed, but its impacts cumulatively erode our ability to deploy combat ready Sailors and Marines.

Knowledge of these domestic pressures by our allies may influence them to deny use of their ranges by our forces ... This loss of training opportunities will reduce fleet combat readiness proportionately. n24

[*227] Congress, in its efforts to address deepening concerns over the deterioration of our environment and historical non-compliance by federal facilities, enacted environmental legislation with the intent of reversing the effects of years of non-compliance and encouraging future compliance and prevention. n25

A seemingly unintended consequence, however, of the inclusion of citizen suit provisions - more specifically the availability of injunctive relief has been the creation of a litigation battleground between national security interests and the environment. A "line in the sand" has been drawn between national security interests and environmental concerns. The adversarial process has produced just that - adversaries. An added wrinkle is that a number of the noncompliance allegations against the DOD maintain dubious environmental claims, keeping hidden what may truly set the parties apart. n26 It seems unlikely that Congress intended the training of a Carrier Battle Group n27 to be stopped by an alleged siting of an endangered turtle - especially in today's climate of terror. n28

[*228]

III. CONGRESS AND ITS EFFORTS TO HOLD FEDERAL FACILITIES ACCOUNTABLE

Before exploring the merits of using the adversarial process to accomplish environmental protection, access to the court must be addressed. The federal government has sovereign immunity. n29 Sovereign immunity "precludes courts from enforcing judgments against the federal government without its consent." n30 Thus, the federal government can only be sued where Congress has waived its sovereign immunity. Often those seeking to enforce environmental statutes can find such waivers in the citizen suit provisions of federal environmental statutes. n31 Where an appropriate waiver is not found there, environmental plaintiffs can often sue the U.S. military for injunctive relief under the judicial review provisions of the APA. n32 Once a plaintiff has demonstrated a right to relief under either a citizen suit provision or the APA, she must also satisfy, inter alia, the traditional multi-prong test for injunctive relief if sought. n33

[*229]


A. Incorporation of Citizen Suit Provisions Into Environmental Statutes

In the early seventies, environmental concerns prompted Congress to promulgate several environmental statutes. n34 One of the first and most extensive of these was the major overhaul of the Clean Air Act [hereinafter CAA], debated and passed by the 91st Congress in 1970. n35 In his message on the environment delivered just seven months before passage of the CAA Amendments, President Nixon expressed his concern for the environmental status of the Nation and the need to pursue legislation to address the effects of past neglect. n36 The focus of the debate was on seeking improvements in the air quality of America, while preempting the perceived problems of enforcement. n37 Part of this concern related to a history of unsuccessful efforts at inter-agency compliance. n38 Congress realized that the Federal Government had been one of the biggest contributors to the environmental dilemma which faced the country at that time. n39 Congress sought to level the playing field and hold federal agencies to the same standards of environmental compliance that their civilian counterparts had been held. One of the perceived solutions to the issue of enforcement was the incorporation of citizen suit provision in environmental legislation. n40 The CAA amendments became the first federal environmental legislation to allow citizens to sue the federal government for environmental non-compliance. n41 Although not without its critics, this [*230] legislation became a model for future environmental legislation. n42 In the years following passage of the initial wave of federal environmental legislation, Congress became aware that there were significant obstacles to EPA enforcement against sister federal agencies, including the military. Separation of powers concerns and related theories make it difficult, if not impossible, for EPA to bring compliance actions against federal facilities in court. Recognition of these obstacles to EPA enforcement only strengthened Congress' resolve to make citizen suits an effective tool for enforcement against federal facilities. n43

[*231]

B. Congress Re-affirms Its Commitment to Citizen Enforcement Against the Federal Government

Congress' "frustration" with enforcement efforts against Federal Agencies came to a head in the aftermath of Ohio v. United States Department of Energy. n44 In Ohio, one of the issues the Supreme Court addressed was whether Congress had waived sovereign immunity in the citizen suit provision of the Resource Conservation and Recovery Act [hereinafter RCRA]. n45 The Court found that Congress had not "clearly" waived the sovereign immunity because the section only allowed citizen suits against "persons." Because the government was not included in the definition of "persons" within the statute, the citizen suit provision did not explicitly authorize suits against the federal government and therefore did not effect a waiver of sovereign immunity. n46 In the fallout after Ohio, it took Congress only six months to draft, debate, and pass the Federal Facilities Compliance Act of 1992 [hereinafter FFCA]. n47 [*232] Congress enacted, under sections 6928(a) and (g) of the FFCA, a citizen suit provision which provided explicit authority for citizens to sue federal agencies.

In the hearings leading up to the passage of the FFCA, several members of Congress spoke of frustration with impoverished efforts at federal facility compliance. Members found it repugnant to notions of fairness and equity that the federal government be allowed to operate unfettered while their civilian counterparts have no such protection. n48 They observed that non-compliance by either party results in the same damage to the environment. As Representative Dingell noted in his remarks, "federal facilities are among the country's worst environmental offenders ... Congress is responding to the recent Supreme Court decision in U.S. Department of Energy v. Ohio." n49

The passage of the FFCA should dispel any question regarding Congress' intent to waive federal governmental sovereign immunity. n50 In addition to Representative Dingell's comments, Representative Bilirakis asserted, "today, we seek to sweep away that immunity once and for all." n51 The FFCA and its legislative history demonstrate that Congress is strongly committed to maintaining citizen suits as an enforcement tool against federal facilities. The [*233] issue presented by this article is an apparent lack of reconciliation between Congress' desires to achieve federal facility environmental compliance and national security.

IV. NATIONAL SECURITY INTERESTS PREVAIL WITHOUT COMPROMISE

As discussed above, Congress has maintained a strong interest in environmental stewardship. Frustrated by federal facility non-compliance, Congress sought a means of enforcement and found it through the incorporation of citizen suit provisions and waivers of sovereign immunity. n52 These provisions were incorporated into various environmental statutes, n53 and continue to receive vigorous support from various environmental groups. n54 Through incorporation of these provisions, Congress has wed environmental enforcement to the adversarial process. As may be seen in the cases discussed below, the adversarial process results in blunt resolutions and compels the judiciary to choose sides between environmental stewardship and national security interests. For example, the international community's perspective on us could be negatively influenced if the judicial process were to become uniformly successful in enjoining, displacing, and reducing military units throughout the United States. In other words, our allies might ask: "If Americans can stop their own military from training on their own soil, why should we allow them to train on ours and subject our citizens to these alleged harms?" n55

The contexts in which such litigation occurs and the events leading up to it are important considerations, as well as the ultimate disposition of the cases. n56 [*234] Another concern, as previously raised, is the veracity with which litigation is pursued. n57 Each of the following cases has at least one common denominator - a seminal event. These "events" undoubtedly raised tensions between the respective parties. But as Philip Harter states, "one wonders whether the challenge to the Tellico Dam in Tennessee Valley Authority v. Hill was prompted by a grave concern for the endangered snail darter or by a broader opposition to the adverse effect on the environment and human life." n58 Examples of operational encroachment litigation efforts are discussed below.

A. Kaho'olawe

The fight of the people of Hawaii to expel the U.S. Navy from Kaho'olawe, the smallest of the eight main islands of the State of Hawaii, provides a paradigmatic example of operational encroachment. The island of Kaho'olawe was a religious center for Hawaiians and a place where navigators and kahuna n59 who guided the ocean voyages of early Hawaiians were trained. n60 Some of the oldest heiaus (Hawaiian shrines) are located on the island. n61 The U.S. Navy began using the island for aerial and surface bombardment in 1941. n62 The island had been populated from time to time, but during the Navy's use of the island there were no inhabitants. n63 An archaeological survey [*235] conducted in 1931 identified 50 archaeological sites, which included the above-mentioned heiaus, burial sites and various other structures. n64 Native Hawaiians began "pressing for the return of the island as soon as the Navy commandeered it in 1941." n65 In 1953, President Eisenhower issued Executive Order 10436, which placed the island under the jurisdiction of the Department of the Navy and proclaimed that the island would be returned when its military usefulness was ended. n66

In 1976, an archaeological team began another survey of the island to identify sites of historical and archaeological importance. n67 The team successfully completed a survey of 90% of the impact areas, which revealed that over 30 sites were contained within the area. n68 The Ohana "organized protests and conducted a series of occupations which brought national attention to the issue and resulted in numerous arrests and some imprisonments." n69 Additionally, the Ohana began a series of lawsuits "aimed at restoring Hawaiian control of the island"(emphasis added). n70 One of those suits was Aluli v. Brown. n71

In Aluli, n72 the Protect Kahoolawe Association (PKA), sued the Secretary of the Navy (Navy), seeking declaratory relief and an injunction against the Navy's use of the island for bombing. n73 Plaintiffs relied on the citizen suit provision of the CWA and the ODA, under 33 U.S.C. 1365, 1415, as well as an APA challenge under NEPA. n74 PKA set forth 13 legal claims in part V of their complaint. The district court only addressed two of plaintiff's claims on summary judgment. n75 The court denied granting the extraordinary relief of an injunction. n76 The first claim was that the Navy had failed to file required [*236] environmental impact statements (EIS) and was therefore in violation, inter alia, of NEPA, 42 U.S.C. 4332. n77 Plaintiffs also claimed that the Navy was conducting activities which placed in danger the historic and religious sites mentioned previously, and that this violated Congressional policy enunciated in the National Historic Preservation Act. n78

The court found that the Navy was indeed in violation of both of these statutes and ordered the Navy to comply with the administrative requirements contained within those statutes and to avail themselves of the cooperation of the government of the State of Hawaii in working toward compliance. The court, however, declined to enjoin the Navy from bombing, finding that the plaintiffs "would not suffer irreparable injury." n79 The court recognized that enjoining the Navy might result in "the potential loss of military preparedness," which tipped the scales against injunction. n80 The court relied in part on testimony that the readiness of the Third Fleet would be "reduced by 30 to 40 percent." n81 The court then considered the Navy's search for alternative sites and found that "the reasons for their rejection seem reasonable." n82 Thus, a district court judge was put in the untenable position of deciding what level of decrease in military readiness is acceptable and whether the Navy's selection of training sites was adequate.

This case demonstrates why injunctive relief is an inappropriate remedy to be granted or even considered in an operational context. The decisions and operational training of the armed forces should not be subject to the adjudication of an individual who probably has never spent a day in uniform. In today's war on terrorism, it can hardly be argued that any judge should be granted the power to balance the training needs of armed forces personnel against the loss of burial sites. Instead, I argue that such disputes should be removed entirely from the adversarial process.

B. Romero-Barcelo v. Brown. n83

In 1979, plaintiffs, including the Governor of Puerto Rico, n84 brought suit [*237] against the Secretary of Defense, Secretary of the Navy, Chief of Naval Operations, Commander in Chief of the Atlantic Fleet, and Commandant of the Marine Corps (Navy). n85 The Governor, alleging harm to all residents of Vieques, n86 sought to "enjoin the Navy from using any portion of its lands in Vieques ... for the purpose of carrying out military training operations." n87

The complaint averred violations of over thirty environmental statutes, in addition to various Executive Orders, First and Fifth Amendments to the Constitution, and Presidential Orders. n88 The court, faced with - in its words - "a legal marathon," separated the claims into two piles. One was the "lack of standing" pile, on which basis the court dismissed a significant number of claims. n89 The court then distinguished these claims from those based on the various environmental statutes in which Congress had waived sovereign immunity and provided for citizen suits. n90

[*238] The first claim that the court addressed in this second pile was an alleged violation of the federal Clean Water Act. n91 The complaint maintained that the Navy was required to obtain a National Pollution Discharge Elimination System (NPDES) permit for its discharge of sewage. n92 The court found not only that the Navy no longer discharged sewage in the manner alleged, but that:


[the] Municipality of Vieques [was] one of 25 coastal municipalities in Puerto Rico that discharged municipal wastes directly into the coastal zone, and [was] considered by Plaintiff Environmental Quality Board to "be a major source of pollution.' n93

It is quite remarkable that plaintiffs would make such a claim while they themselves were blatantly violating that very same statute. n94

Another claim came under the Endangered Species Act (ESA). n95 The Governor asserted that the Navy had violated several requirements under the ESA resulting in adverse effects for all the endangered species which inhabited Vieques at the time of the suit. n96 The court summarily dismissed the claims as unsupported by prevailing research. n97 In addressing the status of the Sea Turtles, for example, the court found that, "no credible evidence was presented to show that any activity of Defendant Navy is affecting the Sea Turtles in Vieques in any significant manner." n98 Moreover, the court found that the "greatest threat to these species in Vieques ... has been the unrestricted fishing that has taken place." n99

Romero-Barcelo is an example of a frivolous lawsuit that clearly wastes [*239] resources and does a disservice to the cause of environmental stewardship. The frivolous nature of this filing is somewhat evident through its "kitchen sink" approach. n100 The ability to engage in a three month long trial and subsequent appeals seeking to enjoin the U.S. Navy and deprive service members of essential training, for no other reason than political gain under the guise of environmental concerns, is repugnant to notions of national readiness. This cannot be what Congress intended by the passage of such provisions.

The documented desire to expel the Navy from Vieques and demonstrated lack of legal preparedness evidenced by the "send everything and see what sticks" approach suggest that preservation of the environment was surely not plaintiffs' foremost concern. n101 In fact, the testimony of former Governor of Puerto Rico before the House Armed Services Committee on military readiness and Atlantic Fleet training leaves no question as to the purpose of the lawsuit. n102 The former Governor testified that as a result of failed political efforts and discussions with various administration officials seeking expulsion of the Navy from Vieques, he saw no other recourse but to seek an injunction through available means. n103 Notably missing from the Governor's testimony was any concern for the environment. Instead, he emphasized safety concerns as the focus of the efforts to banish the Navy from Vieques. n104

The court considered plaintiffs' request for injunctive relief, denied it, and instead, ordered compliance with three administrative violations. n105 The court [*240] cited several reasons for its denial of injunctive relief. n106 These included: 1) the activities of the Navy were not causing any appreciable harm (notably citing Aluli v. Brown), n107 2) the extraordinary delay between plaintiffs' ability to seek relief and the actual filing, which the court stated was in excess of eight years, n108 and 3) that "the granting of injunctive relief would cause grievous, and perhaps irreparable harm, not only to the Navy, but to the general welfare of the Nation" by preventing the nation's ability to maintain a well trained and effective naval force. n109

Romero-Barcelo is an anomaly, to some extent, because the purposeful misuse of citizen suit provisions was memorialized in Congressional testimony by the former Governor. For twenty-two years, this case remained silent as to the end game sought. The Governor played a deadly game of political chess with the lives of the women and men in uniform, as well as the very environment he purported to want to preserve. The case represents all that is currently wrong with the current resolution process. Neither American fighting sons or daughters, nor the environment should have their fate hang in the balance of frivolous litigation. In fact, the court pointed out that the Puerto Rican government was harming the environment. Moreover, nothing in the process subsequently compelled Puerto Rican municipalities to act differently. Thus, the adversarial process found the truth but could not remedy the problem. The case also highlights the practical reality that litigation is a reactive blunt instrument instead of a proactive precision tool.

C. Romero-Barcelo Part II

Over twenty years had passed since the first round of lawsuits were prosecuted against the Department of Defense. Then, on April 19, 1999, two errant 500-pound bombs were dropped on Vieques Weapons Range, Puerto Rico, hitting an observation post, killing a civilian and wounding four others. n110 This tragedy reinvigorated Puerto Rican efforts to expel the Navy from Vieques. A letter sent by Mayor Damaso Lopez of Vieques to President Clinton, is illustrative of these resurrected desires:

[*241]

My name is Damaso Serrano Lopez and I am the Mayor-elect of Vieques, Puerto Rico. I won Tuesday's election with 63.8% of the votes for a four year term as Mayor of Vieques. My campaigning focused on achieving the immediate and permanent cease and desist of all military activities in Vieques, which is the primary goal and demand of our people. n111

One must consider the ensuing law suits filed against the Department of Defense in the context of these comments. The people of Vieques have resorted to several methods in order to frustrate military operations on the base. This asymmetrical effort has included physical occupation of bombing ranges to prevent the use of ordinance, as well as the use of the judicial process. Against the backdrop of protests, increasing litigation, and public outcry, President Clinton signed into law, on October 30, 2000, the National Defense Authorization Act for fiscal year 2001. n112 This law effectively expels the Navy/Marine Corps team from operations in Vieques by May of 2003. n113 Notwithstanding this action, various stakeholders continued to press the judicial system to bring about a more immediate end to Naval activity. The following two cases are representative of these litigation efforts.

1. Vieques Conservation and Historical Trust v. George Bush n114

In Vieques Conservation and Historical Trust v. George Bush (Vieques), plaintiffs n115 sought a temporary restraining order to prevent the Navy from resuming training on the island of Vieques. n116 Plaintiffs asserted four reasons for their motion: "further military exercise would: 1) disobey and disregard a U.S. Presidential Order, 2) irreparably injure the island residents and violate their civil and constitutional rights, 3) would cause dispersion of uranium dust particles, and 4) irreparably harm the island's environment." n117 The motion was denied.

The court observed that plaintiffs' assertions were "mere conclusions that lacked evidentiary support." n118 The court then proceeded to consider the four [*242] prong test for granting or denying a preliminary injunction and listed the factors as follows:


1) the movant's likelihood of success on the merits; 2) the potential for irreparable harm if the injunction is denied; 3) a balancing of the relevant equities, i.e. the hardship to the movant if no restraining order issues and 4) the effect (if any) of the court's ruling on public interest n119

The court found under the likelihood of success prong that plaintiffs had simply not met their burden. n120 The court went on to reject plaintiffs' claim that irreparable harm would be done to Vieques' environment. n121 The court based this on the fact that no conclusive scientific evidence had been offered to demonstrate the asserted harm.Considering the balancing of equities prong, the court rested on reasoning similar to that used by the other courts discussed above. Essentially, the court held that "having a well trained military" is an issue of national readiness which cannot be disrupted by the baseless claims of a few. n122 The court, reflecting on its role, went on to state that the "court cannot simply zoom in on the concerns of the United States citizens residing in Vieques, but it must pan back and keep the larger picture in focus."

Thus, the question remains as to when, if ever, the equities would tip the scale in favor of environmental concerns within an operational context. The next case considers the prevailing equities through, perhaps, the most compelling argument in favor of granting injunctive relief - jeopardizing the habitat or existence of an endangered species.

2. Water Keeper Alliance v. Department of Defense n123

In Water Keeper Alliance, plaintiffs n124 also sought a preliminary injunction against Naval training. n125 This time, however, the suit was brought solely on the basis of plaintiffs' assertion that defendant Navy violated the Endangered Species Act's (ESA) consultation requirements. n126 In the court's recitation of the procedural history it noted that, "plaintiffs had originally filed a discursive, rambling complaint with 256 paragraphs sprawling over 52 unnumbered [*243] pages." n127 In an analysis very similar to Vieques, the court denied the relief sought.

The court found that plaintiff's motion for preliminary injunction failed under four prongs of the test. In addressing the balance of equities prong, the court stated, "the grant of a preliminary injunction would work irreparable harm of reducing the Navy's ability to make itself ready for combat." n128 The court appeared to rely heavily on declarations made by Admirals William J. Fallon and Michael G. Mullen in finding that the training exercises on Vieques were "critical" and that Vieques was the only location in the Atlantic to conduct the exercises in question. n129 Additionally, the court found compelling the assertion that "training on Vieques directly equates with lives in combat." n130 The court then went on to note that it was not for the court to decide what the appropriate training should be or where it should be accomplished. n131 Thus, the court concluded that policy decisions were best left to the executive and legislative branches and that based on the facts of the case at bar, the scales weigh in favor of the Navy. n132

Curiously, this opinion makes no mention of the Supreme Court's landmark ESA decision, Tennessee Valley Authority v. Hill. n133 Instead, the opinion relies solely on First Circuit case law. Had it followed the Supreme Court's reading of the ESA in the famous TVA case, the court's decision to deny an injunction might well have come out the other way.

In TVA, the Court stopped construction of a million-dollar dam in order to preserve an endangered species. n134 The endangered species was a small fish known as the snail darter. n135 The species was identified after construction of the dam had commenced. The snail darter was placed on the endangered species list and a lawsuit was brought to enjoin the completion of the dam asserting that its completion would destroy the only known habitat of the species effectively wiping it off the face of the earth. n136 The court examined the legislative history and text of the ESA and found "Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities." n137 The Court also noted that "the plain intent of Congress in enacting the statute was to halt and reverse the trend toward species extinction, whatever the cost." n138 Considering how this would impact issues such as national readiness, the Court stated:

[*244]


furthermore, it is clear Congress foresaw that 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act. Congressman Dingell's discussion of Air Force practice bombing, for instance, obviously pinpoints a particular activity - intimately related to the national defense - which a major federal department would be obliged to alter in deference to the strictures of 7. n139

The court emphasized, "there are no exemptions in the Endangered Species Act for federal agencies, which means that under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases' Congress intended to exempt." n140 Finally, the Court held that considering any such balance of equities would improvidently impede on the power of the "political branches" of government. n141

Thus, TVA arguably removed the traditional equitable discretion of the courts to deny injunctive relief in cases where violations of the ESA have been demonstrated. The harm to endangered species resulting from an ESA violation therefore becomes a trump card outweighing any countervailing national security interest, no matter how substantial.

The court in Water Keeper Alliance apparently considers the "potential loss of individual members of listed species" of a low magnitude. The court clearly ignored the controlling precedent of TVA and was decided accordingly. Although the result is favorable for national security, it creates an even more unpredictable legal environment. If courts refuse to adhere to basic principles in according their decisions, such as stare decisis, it will shake our confidence in our nation's administration of laws. The court, per TVA, did not have discretion to decide whether to grant injunctive relief. This case is illustrative of how close the federal courts have come to granting injunctive relief. This result must not be allowed to come to fruition. In this case, national security interests were preserved at the expense of an endangered species and judicial credibility. This cannot be the scenario that Congress desired to play out in the courts.

We now move from the tropical climate of Puerto Rico to the desert of central Nevada. The following cases concern a Naval Air Station largely responsible for the air combat training of all Navy and Marine Corps units on the western seaboard.

D. Fallon, Nevada

A more subtle assault has been waged against the Naval Air Station ("NAS") Fallon located in central Nevada. The purpose of NAS Fallon is to "provide air warfare training facilities for all Navy and Marine Corps airbases [*245] in the western United States." n142 The following case centers on NAS, Fallon operations and raises the stakes by contending with the survival of an endangered species - a fish named cui-ui.

Water Keeper Alliance is even more curious given its reference to Pyramid Lake Paiute Tribe of Indians v. U.S. Department of Navy. n143 In Pyramid, the court was faced with a similar assertion of endangered species habitat endangerment, and the court went to great lengths to distinguish it from TVA in finding for defendant Navy. In March 1986, the Pyramid Lake Paiute Tribe of Indians ("Tribe") filed suit against the Department of the Navy ("Navy"), alleging that the Navy violated its fiduciary duty to conserve the Tribe's lake fishery when it developed a program for leasing buffer zones surrounding the air station runways to farmers, who would irrigate the land by drawing water from the lake. n144 The Tribe sued under both the citizen suit provision of the Endangered Species Act (ESA) and alleged violations of NEPA pursuant to the APA.

The endangered species involved is a fish named the cui-ui. n145 The NAS was a site in a remote desert location, which was home to literally thousands of takeoffs and landings throughout the year. n146 As a consequence of NAS's location in the middle of the desert, the Navy was faced with the risks of poor visibility, dust storms, potential damage to aircraft, etc. n147 In order to address this problem, the Navy surrounded the runways with "buffer zones" containing irrigated vegetation. n148 In order to irrigate the land involved, water needed to be diverted from the Truckee River. This diversion would effectively reduce the water level of Pyramid Lake and negatively affect the habitat of the cui-ui. n149 The Navy ensured that vegetation would grow there by leasing 2,200 acres of land to local farmers. n150 The Tribe filed a complaint seeking to enjoin the Navy's out-lease program at Fallon. n151 The Tribe argued [*246] that the program "imperils the continued viability of the cui-ui by contributing to a significant decrease in the water level of Pyramid Lake." n152 The district court considered the merits and held that the Navy's actions did not place the cui-ui in "jeopardy" under 7(a)(2) of the ESA. n153 The circuit court affirmed.

The court cited Tennessee Valley Authority v. Hill ("TVA"), n154 quoting its famous declaration that "the plain intent of Congress in enacting the ESA was to halt and reverse the trend toward species extinction, whatever the cost." n155 The court went on to distinguish TVA by observing that in TVA the "completion of the Tellico Dam would result in total destruction of the snail darter's habitat," whereas here, the indication was that the habitat of the cui-ui was not in "grave danger." n156 Thus, the court strongly intimated that if the cui-ui's environment were to be threatened in the same manner, the court would have to issue an injunction and would have no discretion to consider the legitimacy or national interests implicated by the Navy's actions. n157 Therefore, it appears that national security interests can and will be trumped should an endangered species habitat be threatened in a manner consistent with the factual scenario in TVA.

This case provides another example of litigants seeking to halt operations of the Navy, which, if successful, would have resulted in the stoppage of all related training for Navy and Marine Corps units along the entire western seaboard.It is important to consider what would have been the practical alternatives to this decision. In other words, if the court had issued an injunction, would the Navy have ceased the training, developed new technology, or moved to another base? All of these "solutions" would have suddenly and violently disrupted the means and manner of training. The consequence would have been a severe reduction in the readiness of a little over a third of U.S. Forces. Again, one must surely question the dubious efforts of shaping military readiness through the litigation process. Although no such actions were taken, the question remains as to the utility of such an interfering process.

V. ALTERNATIVE DISPUTE RESOLUTION...IT JUST MAKES SENSE

One of the unfortunate realities of the existence of humanity is the ever- [*247] present potential for war. One need only consider current events such as the tragedy of September 11th or the hostilities in the Middle East to truly appreciate man's capacity for destruction and hatred for his fellow man. In order to ensure that there will be future generations of free and democratic Americans, there must be an investment in the Department of Defense. Similarly, the world gains neither size, nor capacity to deal with the ravages of mankind. The difficulty in addressing both environmental, as well as, national security issues is that they both entail heavy consideration of future undetermined events. The American political system is typically unresponsive to proactive long-term approaches. The prevailing thought among elected officials appears to be to focus on whatever can be done within an election cycle to perpetuate one's political survival and serve the constituency that admittedly placed one in office.

The finality of court decisions belies the very nature of disputes between the environment and national security. National security interests not only include the nation's environment - they command protection of it. One could not imagine allowing activities to jeopardize the habitat or existence of the Bald Eagle - a symbol of national pride and resolve. From the tobacco farms of the South, to the hardwoods of the Northwest, each and every citizen maintains a stake in preserving this thing we call the United States of America. Viewing the environment and national security as a "joint tenancy" in American democracy, it becomes clear that pitting them against each other in a litigation posture is an attempt to separate that which is inseparable. The basic choices must shift from whether or not preservation should occur to how it can occur conterminously with military operations. The adversarial process is neither equipped, nor has the impetus to engage in such a colloquy. Thus, an alternative forum must be created to address these issues. n158

[*248] One of the clearest benefits to establishing an ADR forum would be its ability to craft solutions that would cater to the needs of the particular issues concerned. n159 This solution development process would include empowerment of the various stakeholders. The ability to contribute to the process will promote "ownership" of the solutions and greater incentive to comply with the outcomes. In Pyramid, the Pyramid Lake Paiute Tribe of Indians were facing a significant disruption of their monopoly over the farm lands surrounding NAS Fallon as a result of the Navy's newly proposed subleasing program. It would appear that the cui-ui's fate was somehow tied to the Tribe's interests in ways not environmentally related. An ADR forum may have been able to address these additional issues, as well as promote a more "neighborly" relationship between the Navy and the community it asserts to protect.

National security interests and environmental issues require highly specialized knowledge and experience to truly appreciate the nuances of each area of interest. Suffice it to say, civilian district court judges should not be deciding when military operations can be enjoined. Kaho'olawe placed the court in a position of determining whether the Navy was selecting its training sites properly. In today's uncertain world in which the nation demands to be protected from future acts of terrorism, it can hardly be imagined that a district court judge, who has never fired a weapon before in his life, would decide whether military training and/or operation should be halted. It is somewhat ironic that the system of justice is symbolized by a turtle ... slow, deliberate, and patient. These qualities do not comport with the needs of saving endangered species or of inserting troops into a foreign land. An ADR forum would provide the opportunity for discussion of all relevant issues and not have the burden of "finality" placed on it as in litigation. In other words, after a lawsuit is "final", parties are expected to move on. Readdressing the same issues, by the same parties, with the same operative facts is inimical to the judicial system in this country. ADR would allow for a proactive continuing dialogue between those concerned and provide a more accessible forum to air concerns unhindered by legal constructs and remedies.

Although difficult to ascertain, some citizen suits are brought for reasons wholly unrelated to that which they purport to be concerned with. This is captured by Romero-Barcelo and the ensuing testimony made by the former Puerto Rican Governor years later before a Senate committee hearing. The existence of this type of litigation wastes both judicial, as well as, litigant [*249] resources and flies in the face of ethical considerations such as candor to the tribunal. One can not fault those who would use all available means to further their cause. However, when considering what is in the balance, and the future credibility of the judicial system, there is no room in the court dockets for frivolous litigation.

Stopping a Carrier Battle Group based on assertions of a politically motivated environmentalist group will result in irreparable harm. It may be said that a description of this "harm" is elusive. On the other hand, the qualitative nature of the harm asserted as "injury to an individuals interest in studying or enjoying a species and its natural habitat," n160 may also be seen as indeterminable. In that sense, it is not unlike the mantra associated with death penalty jurisprudence - "death is different." Deciding to allow a species to move closer to extinction or to enjoin a nation's preparedness for future operations is simply that - different.

TVA may provide authority to discount the importance of national security interests by removing the traditional equitable discretion of judges. If that be the case, national security interests would not even be considered when dealing with an endangered species. Does TVA's command that we halt the extinction of species "whatever the cost" extend to the "cost" of human life? The protection of all life would seem more consistent with Congress' intention. Therefore, it seems unlikely that Congress intended for courts to be precluded from weighing the lives of men and women in uniform against the continued existence of an endangered species. An ADR forum would reduce the likelihood of pitting the pursuit of saving an endangered turtle against the interruption of training focused upon the prevention of another September 11th.

VI. CONCLUSION

America's desire for protection of both its citizens as well as its environment are issues that will survive many future generations. It is clear that seeking enforcement of environmental statutes places national security interests and environmental concerns in "competition" with each other. This adversarial posture brings with it all that that implies: a focus on zealous advocacy, an inherent hostility between litigants, and a win-lose disposition posture. For all of the reasons discussed, the judicial system is unequipped to respond effectively to the needs of either side of this competition. Developing a cooperative and open discussion through an ADR forum can only enhance compliance and provide an opportunity for developing proactive approaches to unique problems.

This country cannot afford to have decisions of national security decided by civilian judges, in what would equate to a mechanic attempting to fix a delicate instrument with a sledgehammer. Additionally, even if precedent dictates the removal of judicial discretion in dealing with endangered species, the courts have demonstrated that they may contort facts or simply ignore precedent in order to preserve the national security interest status quo. Decisions such as [*250] these will only serve to harm the integrity of the adjudicatory process. It is not to say that these issues should not be vigorously pursued. There should be more discussion, not less. As the old saying goes, "there is a time and place for everything." My suggestion is that waiting until issues can be raised in the adversarial system presents neither the time to contend with operational encroachment issues, nor the appropriate forum in which to resolve these issues. The creation of ADR forums would allow all stakeholders to participate in an open and vigorous discussion without the burden and rigid structure of the adversary system. The quote from Albert Einstein is most apropos, "peace cannot be kept by force ... it can only be achieved by understanding." An ADR forum would provide an opportunity for understanding, whereas, the adversarial process does nothing but promote the desire to "win." Unfortunately, neither side of this issue can afford to lose.



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