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

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Environmental LawFederal & State InterrelationshipsSovereign ImmunityEnvironmental LawNatural Resources & Public LandsEndangered Species ActTakingsGovernmentsFederal GovernmentDomestic Security

n1. Albert Einstein.
n2. C1, XVIII Abn Corps and Fort Bragg Reg 350-6.

1. Red-Cockaded Woodpeckers (RCW): The RCW is an endangered bird found throughout Fort Bragg and Camp Mackall. It is protected by federal law. RCW's are cavity nesting birds and depend on live pine trees for their survival. Cavity trees are marked with two bands of red or white paint around the lower portion of the trunk. Trees that form the perimeter of a protected area around cavity trees are marked with single bands of red or white paint or red reflective material.

(1) Training activities within the entire protected area, marked with single red/white bands, are prohibited except for the following:

(a) transient foot travel

(b) transient vehicular traffic only on existing maintained roads and firebreaks.

(2) If protected areas are not clearly marked, then the restrictions in (1) above apply within a 200-foot radius of double-banded trees.

m. Trees WILL NOT be cut down or damaged in any training area by tactical units except as unauthorized by DPWE Endangered Species Branch. Tree cutting is authorized with an approved DA Form 4283, Facilities Engineering Work Request, which must indicate the number and size of trees required and where they are to be used. Range Control will be notified by unit prior to cutting timber.

n. Pine trees WILL NOT be cut for parachute extraction or in other unplanned situations without approval of DPWE Wildlife Branch, 396-9474, or after duty hours the DPWE Staff Duty Officer, 396-1504, and notification to Range Control. This applies anywhere on the installation. Request/approval for use of DPWE cherry picker must have approval of DPWE Endangered Species Branch personnel and will be requested by telephone through the DPWE Work Reception Center, 396-4807, or after duty hours through DPWE Staff Duty Officer, 396-1504. In the case of injured parachutists suspended from trees, the injured soldier's welfare always takes precedence, particularly in serious or life threatening situations.

n3. 91 Cong. House Debates 1970; CAA70 Leg. Hist. 14, 9 September 21, 1970. Mr. Brown comments.
n4. David N. Diner, The Army and the Endangered Species Act: Who's Endangering Whom?, 143 Mil. L. Rev. 161, 166-67 (1994) (based on an average estimate of four to five million species in the world today, and a 20-25% loss rate over the next quarter century). See also Introduction to the Preservation of Species: The Value of Biological Diversity 3 (Bryan G. Norton ed., 1986).
n5. Id.
n6. First, it must be noted that Congress intended through incorporation of waivers of sovereign immunity into the various environmental statutes to allow citizens to seek redress against the federal government. See 91 Cong. Senate Debates 1970, CAA70 Leg. Hist. 9, 14 September 21, 1970. Additionally, Supreme Court precedent definitively establishes a "strong presumption that Congress intends judicial review of administrative action." See NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 130-31 (1987); Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986); Abbott Labs. v. Gardner, 387 U.S. 136, 140-41 (1967); see also Portland Audubon Soc'y v. Hodel, 866 F.2d 302 (9th Cir. 1989) (narrowly construing appropriations rider purporting to restrict judicial review of northwest timber sales). This is probably most evident through Congressional passage of the Administrative Procedure Act. See Administrative Procedure Act of June 11, 1946, ch. 324, 60 Stat. 237 (codified as amended in scattered sections of 5 U.S.C.).
n7. I will emphasize the word "operations" because, as will be discussed later, there lies an important distinction to be made between activity that the military is already engaged in and future activity in which it seeks to engage.
n8. 16 U.S.C. 1531-1544 (as amended) (1994 & Supp. V 1999).
n9. As will be discussed further, national security interests are implicated when ever injunctive relief may be granted that will prevent training and, consequently, result in deploying U.S. Forces abroad for a game day for which they have not properly prepared. This lack of preparedness directly translates into loss of American life, ineffectual prosecution of battle, and other unknown consequences.
n10. This result is borne out in the fact that the court will have to decide either to grant the relief or deny it. Thus, if National Security Interests trump it will vitiate the sole purpose of whatever statute it is considered against, for example the ESA which is to preserve the existence of the species.
n11. See generally infra Part IV (discussing relevant case law).
n12. See Senate Committees on Health & Environment and Water, Land & Hawaiian affairs, February 11, 1997, 5:30 P.M. Testimony in support of SB 443, available at http://www.hi.sierraclub.org/action/1997/97-01-31-t-sb0443.html. Testimony by The Sierra Club, Hawaii Chapter:

Congress recognized that the government did not have sufficient time or resources to provide sufficient enforcement of these new, comprehensive environmental laws. In addition, government bureaucracy may interfere with prompt enforcement action. These citizen suit provisions have proven to be necessary not only when the government is unable to enforce the law, but also when it is unwilling to do so. During the Carter administration, one citizen suit was brought for every six actions by the EPA. In contrast, during the Reagan years when environmental enforcement actions taken by the federal government slowed to a trickle, environmental groups sued to enforce the law more frequently than did the federal government.

Thus, where the government is unwilling or unable to aggressively enforce the law, citizen suits are needed to fill the void.
n13. I first heard of this term from Lt. Col. Finn, Associate Counsel, Environmental Law, Eastern Area Counsel Office, USMC, who indicated that the term was coined by David Shephard, Norfolk, Virginia August, 2000.
n14. The impact of compensatory and/or punitive damages on the Department of Defense is not addressed in this article. See, e.g., Richard H. Fallon Et AL., Hart and Wechsler's the Federal Courts and The Federal System, at 1001-04 (4th ed. 1996) (for a summary discussion of sovereign immunity and whether citizens may seek to impose liability upon the government to be paid from public funds).
n15. NEPA does not have a citizen suit provision, but citizen enforcement is usually available under the judicial review provisions of the APA. See National Environmental Policy Act of 1969, 42 U.S.C. 4321, 4331-35, 4341-47 (1994 & Supp. V. 1999); Administrative Procedure Act, 5 U.S.C. 706 (1994 & Supp. V. 1999).
n16. See, e.g., Shoshone Paiute Tribe v. United States, 889 F. Supp 1297 (D. Idaho 1994) (NEPA case granting injunctive relief against the Air Force finding that an EIS was insufficient); Protect Key West, Inc. v. Cheney, 795 F. Supp 1552 (S.D. Fla. 1992) (NEPA case granting injunctive relief against the U.S. government from building military housing for the Navy due to a deficient environmental assessment); Hudson River Sloop Clearwater, Inc. v. Department of Navy, 659 F. Supp 674 (E.D.N.Y. 1987) (NEPA holding that national security did not excuse its obligation to supplement an environmental impact statement as proper under 42 U.S.C. 2201 et seq.; Foundation on Economic Trends v. Weinberger, 610 F. Supp 829 (D.D.C. 1985) (NEPA case granting injunctive relief against the Army to enjoin construction of the aerosol toxin laboratory. The Dugway Proving Ground, located 87 miles southwest of Salt Lake City, Utah, is a Department of Defense (DOD) installation that is operated by the United States Army. The primary purpose of the Dugway installation is to test and assess the military value of chemical warfare and biological defense systems).
n17. See generally infra Part IV (discussing relevant case law).
n18. See generally infra Part IV (discussing relevant case law).
n19. See, e.g., Hearing on Atlantic Fleet Training and Readiness Before the Subcomm. on Military Readiness of the House Armed Services Committee, 106th Cong. (1999), available at 1999 WL 753942 (F.D.C.H.) (comments of Lt. Gen. Peter Pace, Commander, U.S. Marine Forces, Atlantic, U.S. Marine Corps):

Your Marine Corps has approximately 25,000 Marines forward deployed every day. As one example, today we have just over 2,000 Marines aboard ship in the Mediterranean. Those Marines trained at Vieques just before going on this deployment. Immediately upon arriving in the Mediterranean, they went into Albania and were working with the refugee population in Albania that was flowing out of Kosovo. Midway through that operation, they were put back aboard ship, went around off the coast of Greece, and went into Kosovo itself ... very, very tense situation ... They came back out of there and went over to Turkey, and as a result of the earthquake in that country were able to go ashore and help in humanitarian efforts there.

n20. See Encroachment Issues Having a Potentially Adverse Impact on Military Readiness: Hearing Before the Subcomm. on Readiness and Management Support of the Senate Armed Services Committee, 107th Cong. (2001) (statement of Vice Admiral James F. Amerault, Deputy Chief of Naval Operations, Fleet Readiness and Logistics), available at http://www.senate.gov/armed<_>services/statemnt/2001/010320ja.pdf.

Our forward-deployed naval forces are strategically positioned in key regions of the world that are vital to our nation's trade, communications, and political interests. Mobile, flexible, and sustainable, these naval forces operate unencumbered by sovereignty issues. It is precisely because of their credible combat capability that we play a key role in maintaining worldwide economic, political and military stability. Our naval forces are lethal war fighting instruments immediately available to our joint-combined warfare commanders when needed because they are trained and ready for combat. Training and readiness form the solid foundation of our credible combat capability, and no amount of technology, hardware, personnel or leadership can achieve this readiness without access to quality training ranges in the United States to prepare our Sailors and Marines for the rigors of combat. Id.

n21. See, e.g., id. (describing the correlation between training and combat success).
n22. "While our naval forces may have decreased in number, our requirement for ranges has not. Today's higher performance aircraft and ships employ weapons of greater capability, but also of greater complexity and unique delivery tactics. The combination of capability, complexity, and tactics also translates into the need for larger ranges." Id.
n23. Id.
n24. Id. (emphasis added).
n25. See supra note 3.
n26. Stephen B. Goldberg Et Al., Dispute Resolution: Negotiation, Mediation, and Other Processes at 501 (3rd ed. 1999).
n27. The official website of the U.S. Navy contains the following overview of a Carrier Battle Group:

The Carrier Battle Group - First it is important to note that there really is no real definition of a battle group. Battle groups are formed and disestablished on an as needed basis, and one may be different from another. However, they all are comprised of similar types of ships. Typically a carrier battle group might have:

. a carrier - The carrier provides a wide range of options to the U.S. government from simply showing the flag to attacks on airborne, afloat and ashore targets. Because carriers operate in international waters, its aircraft do not need to secure landing rights on foreign soil. These ships also engage in sustained operations in support of other forces.

. two guided missile cruisers - multi-mission surface combatants. Equipped with Tomahawks for long-range strike capability.

. a guided missile destroyer - multi-mission surface combatant used primarily for anti-air warfare (AAW)

. a destroyer - primarily for anti-submarine warfare (ASW)

. a frigate -primarily for anti-submarine warfare (ASW)

. two attack submarines - in a direct support role seeking out and destroying hostile surface ships and submarines

. a combined ammunition, oiler, and supply ship - provides logistic support enabling the Navy's forward presence: on station, ready to respond

The Carrier Battle Group (CVBG) could be employed in a variety of roles, all of which would involve the gaining and maintenance of sea control:

. Protection of economic and/or military shipping.

. Protection of a Marine amphibious force while en route to, and upon arrival in, an amphibious objective area.

. Establishing a naval presence in support of national interests.

United States Navy Office of Information, The Carrier Battle Group, Official Site of the United States Navy, at http://www.chinfo.navy.mil/navpalib/allhands/ah0197/cvbg.html (last visited March 18, 2002).

n28. See supra note 20:

These precautionary measures included: (1) limited night-time use of inert ordinance on the range to 60 minutes total or only ten percent of total Naval Surface Fire Support (NSFS) firing and 30 percent of total bombing allowed during night-time; (2) forbade use of illumination rounds after 11:00 p.m. with a 60-minute maximum total time of illumination per night (including Naval and aircraft dropped flares, artillery and mortars over both water and land); (3) required constant aerial surveillance of the range and surrounding waters by certified biologists during the day; and (4) halted the entire training exercise for a Carrier Battle Group in the event of observing a single sea turtle either on the range or within 1,000 yards of shore. The total cost for compliance with these requirements during Composite Training Unit Exercises, Joint Task Force Exercises, and Supporting Arms Coordination Exercises was approximately $ 300,000 per exercise. This was in spite of the fact that our aggressive conservation program led directly to increases in the turtle population on Navy beaches at Vieques while we conducted continuous training operations from1942 onward in the absence of these precautionary measures. In fact, the sea turtle population inhabiting Navy beaches has grown at a faster rate than sea turtle populations inhabiting public beaches on Puerto Rico.

Id. (emphasis added).
n29. McCulloch v. Maryland, 17 U.S. 316 (1819).
n30. Randall S. Abate & Carolyn H. Cogswell, Sovereign Immunity and Citizen Suit Enforcement of Federal Environmental Laws: A Proposal for a New Synthesis, 15 Va. Envtl. L.J. 1, 4-6 (Fall 1995). "Three principle rationales support the application of sovereign immunity in the United States: 1) sustaining separation of powers; 2) protecting the government from undue interference; and 3) protecting the public fisc." Id.
n31. See e.g., Federal Water Pollution Control Act 505, 33 U.S.C. 1365 (1994 & Supp. V 1999); Endangered Species Act 11(g), 16 U.S.C. 1540(g)(1) (1994 & Supp. V 1999); Resource Conservation and Recovery Act 7002, 42 U.S.C. 6972 (1994 & Supp. V 1999).
n32. 5 U.S.C. 706. See also ONRC Action v. Bureau of Land Mgmt., 150 F.3d 1132, (9th Cir. 1998). The APA was passed in 1946, long before the promulgation of modern day environmental legislation and prior to the birth of the EPA in 1970. "To demonstrate standing under the APA a plaintiff must (1) identify a final agency action; and (2) show that the injury complained of falls within the zone of interests sought to be protected by the statutory provision whose violation forms the basis ... [of the] complaint." ONRC Action, 150 F.3d at 1135.
n33. See, e.g., Water Keeper Alliance v. United States Department of Defense, 152 F. Supp. 2d 155, 158 (D.P.R. 2001). "Trial courts must consider 1) the likelihood of success on the merits; 2) the potential for irreparable harm if the injunction is denied; the balance of relevant impositions, i.e., the hardship to the non-movant if no injunction issues; and 4) the effect (if any) of the court's ruling on public interest." Id.
n34. The EPA administers nine major environmental statues passed by Congress between 1969 and 1980: 1) Clean Water Act, 2) Federal Water Pollution Control Act (the Clean Water Act), 3) Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or the "Superfund"), 4) Marine Protection, Research and Sanctuaries Act (MPRSA), 5) Solid Waste Act or Resource Conservation and Recovery Act (RCRA), 6) Federal Insecticide, Fungicide and Rotenticide Act (FIRFA), 7) Toxic Substances Control Act (TSCA), 8) Noise Control Act, and 9) Safe Drinking Water Act.
n35. 116 Cong. Rec. 32900 (1970) (Senate Debates on the Clean Air Act).
n36. Id. at 32908 (Exhibit I, President Nixon's message on the Environment February 10, 1970). President Nixon declared, "Like those in the last century who have tilled a plot of land to exhaustion and then moved to another, we in this century have too casually and too long abused our natural environment. The time has come when we can wait no longer to repair the damage already done, and to establish new criteria to guide us in the future." Id.
n37. Id. at 32901 (comments by Senator Muskie). "The bill we consider today, however, faces the environmental crisis with greater urgency and frankness than any other previous legislation...so there is need for this legislation ... President Nixon recognized this need." Id.
n38. See infra note 43.
n39. See infra note 43.
n40. 116 Cong. Rec. 32900, 32903 (1970) (Senate Debates on the Clean Air Act) (Comments by Sen. Muskie). "Finally, the bill extends the concept of public participation to the enforcement process. The citizen suits authorized in this legislation would apply important pressure. Although the committee does not advocate theses suits as the best way to achieve enforcement, it is clear that they should be an effective tool." Id.
n41. Id.
n42. See e.g., Federal Water Pollution Control Act 505, 33 U.S.C. 1365 (1994); Endangered Species Act 11, 16 U.S.C. 1540(g)(1) (2000); Resource Conservation and Recovery Act 7002, 42 U.S.C. 6972 (1994). See also 116 Cong. Rec. 32900 (1970) (Senate Debates on the Clean Air Act). Comments of Senator Muskie: "the committee does not advocate these suits as the best way to achieve enforcement, it is clear they should be an effective tool." Id. at 32903. Comments of Senator Spong: "It is not our intent to substitute citizen suits for enforcement efforts of the responsible administrative agencies...we intend the provision to complement and encourage the abatement activities of governmental agencies." Id. at 32919. Comments of Senator Hruska: "...wherein private citizens may challenge virtually every decision made by the officials of the Executive Branch in the carrying out of the numerous complex duties and responsibilities imposed by the Clean Air Act ... The adoption of Section 304 will result in a multiplicity of suits which will interfere with the Executive's capability of carrying out its duties and responsibilities." Id. at 32925 (emphasis added).
n43. Lisa M. Schenck, Let's Clear the Air: Enforcing Civil Penalties Against Federal Violators of the Clean Air Act, 6 Envtl. Law 839 (2000). Obstacles to environmental enforcement against sister agencies within the Executive Branch have frustrated EPA efforts since its inception. Attempts by the EPA to enforce various acts against Federal Agencies may be subjected to Constitutional challenges under three theories 1) separation of powers, 2) the unitary executive theory, and 3) violation of Article III's case or controversy requirement. Id.

Separation of powers, is not found explicitly in the Constitution but is illustrated through its structure and discrete treatment of each branch. The division of power was incorporated into our system of government in order to promote efficiency and prevent tyranny. Myers v. United States, 272 U.S. 52, 135 (1926)(Brandeis J. , dissenting)("The doctrine of the separation of powers was adopted not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy"). In an attempt to defeat EPA enforcement efforts against sister agencies the DOJ has argued that the judiciary is preempted from resolving disputes between two agencies of the Executive Branch. The courts must determine if their resolution will constitute an encroachment of the Executive Branch and therefore violate the doctrine. See Michael W. Steinberg, Can EPA Sue Other Federal Agencies?, 17 Ecology L.Q. 317 (1990) (discussing, inter alia, the merits of a suit between the Department of Defense and the EPA). See also Memorandum from Dawn E. Johnson, Acting Assistant Attorney General, Office of Legal Counsel, to Jonathan Z. Cannon, General Counsel, EPA, and Judith A. Miller, General Counsel, Department of Defense, Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air Act (July 16, 1997) at http://www.usdoj.gov/olc/cleanair<_>op.htm (finding that "Separation of Powers concerns do not bar EPA's exercise of authority because it can be exercised consistent with the Constitution").

A second theory that has been proffered is the unitary executive theory. This theory recognizes that Federal Agencies were created by Congress and all the heads of these agencies serve at the pleasure of the President. It follows that because the President is responsible under Article II of the Constitution for ensuring that the laws are faithfully executed in a supervisory capacity over these agencies, if one agency could sue another or unilaterally order it to take a particular action without the President's oversight, the President would be deprived of his supervisory role to settle the matter. See also Myers, 272 U.S. at 135; Exec. Order No. 12,088, 1-602, 1-604, 43 Fed. Reg. 47,707 (Oct. 13, 1978); Exec. Order No. 12,146, 1-401 to 402, 44 Fed. Reg. 42,657 (July 18, 1979); Memorandum from Dawn E. Johnson, Acting Assistant Attorney General, Office of Legal Counsel, to Jonathan Z. Cannon, General Counsel, EPA, and Judith A. Miller, General Counsel, Department of Defense, Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air Act (July 16, 1997) at http://www.usdoj.gov/olc/cleanair<_>op.htm.

A third challenge may come under Article III's "case or controversy" requirement. The language in Article III has been interpreted to mean that the courts must find an adversarial relationship between the two parties in order to ensure that federal courts review only actual controversies and do not render advisory opinions. Muskrat v. United States, 219 U.S. 346, 357 (1911). Because the EPA and its sister agencies operate under the Executive Branch any enforcement action would be devoid of an adversarial relationship. Consequently, a conflict between the EPA and other federal agency would be considered non-justiciable. See also Memorandum from Dawn E. Johnson, Acting Assistant Attorney General, Office of Legal Counsel, to Jonathan Z. Cannon, General Counsel, EPA, and Judith A. Miller, General Counsel, Department of Defense, Administrative Assessment of Civil Penalties Against Federal Agencies Under the Clean Air Act (July 16,1997) at http://www.usdoj.gov/olc/cleanair<_>op.htm.

In addition to these various constitutional roadblocks, the courts have refused to find a waiver of sovereign immunity typically through strict interpretation in favor of the sovereign. Ohio v. United States Dept. of Energy, 503 U.S. 607, 614-6 (1992); Mitzelfelt v. Dept. of Air Force, 903 F.2d 1293 (10th Cir. 1990) (no waiver under CWA); United States v. Washington, 872 F.2d 874 (9th Cir. 1989) (no waiver under CWA); California v. Dept. of Navy, 845 F.2d 222 (9th Cir. 1988) (no waiver under CWA).

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