Habitat law may let military bypass environment act

By William Cole
Advertiser Military Writer

Hawai'i environmentalists are raising alarm over proposed federal legislation that would allow the military to bypass key portions of the Endangered Species Act and Migratory Bird Treaty Act.

"We're very concerned the military is taking advantage of the current situation (in the world) to rid itself of laws it feels are inconvenient," said David Henkin, an attorney with the Earthjustice Legal Defense Fund. "It certainly raises the possibility that military training could completely preclude any hope of recovering scores of endangered species here in Hawai'i."

Legislation in the 2003 defense bill that has been passed by the House Armed Services Committee and is expected to be considered by the full House this week would place in jeopardy "critical habitat" protections on military land.

On O'ahu, 65,879 acres are designated as critical for the O'ahu 'elepaio, an endangered forest bird. Of that, 10,489 acres are on federal land, including military bases and U.S. Fish and Wildlife Service areas. Military land on Kaua'i and Maui have been designated for endangered plants like the dwarf iliau, lau 'ehu, and 'ohai.

Additional critical habitat designations — some of which almost certainly will be on military land — are expected to be announced later this month.

But the armed services, which complain they are increasingly hemmed in by environmental laws that restrict training and erode readiness, maintain the law changes are designed to save lives as the United States continues to wage war on terrorism.

"With the many restrictions placed on military training and weapons testing in recent years, training is losing its realism," the Pentagon said. "A battlefield is not the place for soldiers, sailors, airmen or Marines to learn how a military tactic or weapon really works."

Pauline Sato, O'ahu director of The Nature Conservancy of Hawai'i, said she has "great concern" about revisions to the Endangered Species Act.

"It would not be good for the fate of endangered species and native habitat in Hawai'i as well as throughout the nation," Sato said. "The military has been a leader in Hawai'i for endangered species protection on their lands because of this law."

The military in recent years has battled environmentalists over live-fire training in Vieques in Puerto Rico, San Clemente Island off the coast of California, and Makua Valley, and for the right to use the island of Farallon de Medinilla in the Western Pacific, a key Pacific Fleet training area.

An exception being considered to the Migratory Bird Treaty Act of 1918 would make allowances for the military to accidentally kill protected bird species during training.

A U.S. District judge in Washington last week issued an injunction stopping the bombing of Farallon, 45 miles north of Saipan, responding to the Center for Biological Diversity's suit filed in December 2000.

Earthjustice attorney Paul Achitoff said the lawsuit simply would be moot under the proposed new legislation. "They (the military) have taken the broadest of brushes and simply said, 'We want to be exempt,' " Achitoff said.

But the Navy said Farallon is the only U.S.-controlled live-fire practice range in the Western Pacific, and is "absolutely essential to the combat effectiveness of the Pacific Fleet."

"The range training conducted there really can't be duplicated anywhere else in the Western Pacific," said fleet spokesman Ensign Mike Morley.

Morley said the legislation would allow the military to continue to use Farallon, while the defense budget also would provide $4 billion for defense department environmental preservation efforts.

Neither of Hawai'i's congressional delegates, Rep. Neil Abercrombie and Rep. Patsy Mink, both Democrats, could be reached for comment late yesterday.

Earthjustice's Henkin said the Endangered Species Act exemption would not derail Environmental Impact Statement analyses being conducted for live-fire training in Makua Valley or the Army's $693 million plan to create a fast-strike Interim Brigade Combat Team.

Henkin said what it would do is take away the need for the military to consult with the U.S. Fish and Wildlife Service on its plans for land designated by the agency as critical habitat.

"Critical habitat does not create a nature preserve," Henkin said. "It just makes sure federal activities will not destroy habitat needed for recovery."

Required consultation with the Fish and Wildlife Service "is where there are some real teeth that tells the military what it can and can't do," Henkin said.

Schofield Barracks officials yesterday said the Army has a "strong commitment to protect the environment while carrying out its mission," and that U.S. Army Pacific has committed $12 million for environmental programs for 2003.

Reach William Cole at wcole@honoluluadvertiser.com or 525-5459.