The Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and Department of Defense (DOD) Readiness Activities: Background and Current Law

CRS Report for Congress
The Endangered Species Act (ESA),
Migratory Bird Treaty Act (MBTA), and
Department of Defense (DOD) Readiness
Activities: Background and Current Law
Updated August 9, 2004
Pamela Baldwin
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

The Endangered Species Act (ESA), Migratory Bird
Treaty Act (MBTA), and Department of Defense (DOD)
Readiness Activities: Background and Current Law
Summary
The relationship of military readiness activities of the Department of Defense
(DOD) to the Migratory Bird Treaty Act (MBTA) and to the Endangered Species Act^th
(ESA) was the subject of legislative proposals in the 107 Congress and again in the

108^th.

P.L. 107-314 was silent as to ESA issues, but does contain MBTA provisions.
Section 315 of that act directs that regulations be developed to exempt the Armed
Forces from MBTA penalties for the incidental taking of migratory birds during
military readiness activities. Until such regulations are finalized, § 315 provides that
the prohibitions of the Migratory Bird Treaty Act do not apply to the incidental
taking of migratory birds by a member of the Armed Forces during military readiness
activities, but the Secretary of Defense, in consultation with the Secretary of the
Interior, is to minimize and mitigate, to the extent practicable, adverse impacts of the
readiness activities on affected migratory birds. Proposed regulations were published
on June 2, 2004 that would exempt DOD military readiness activities and those of
the Coast Guard in the Department of Homeland Security from MBTA penalties, but
this authorization can be withdrawn or suspended under certain circumstances.
Under the ESA, the Secretary of the Interior (and in some circumstances the
Secretary of Commerce) can designate “critical habitat” after taking into account
economic or “any relevant impacts.” P.L. 108-136, the National Defense
Authorization Act for Fiscal Year 2004, precludes designation of critical habitat on
DOD lands “subject to” an Integrated Natural Resources Management Plan (INRMP)
prepared under the Sikes Act if the Secretary determines in writing that the plan
provides a benefit to the species for which critical habitat is proposed for designation.
Also, consideration of impacts on national security must now be considered when
critical habitat is designated. Agency compliance with the consultation and
prohibition sections of the ESA is retained.
This report provides background on the provisions and statutes involved and
will be updated as circumstances warrant.

Contents
In troduction ......................................................1
The Endangered Species Act.........................................2
Applicability to Federal Activities.............................2
Exceptions for Federal Activities That “Take”...................3
The Migratory Bird Treaty Act.......................................4
Application to Federal Activities..............................4
“Intent” ..................................................6
Direct vs. Indirect Take.....................................6
Permits ..................................................7
Executive Order...........................................8
107^th Congress....................................................9
House Bills...................................................9
Section 311 of H.R. 4546 as Passed by House – Changes to the
MBTA ..............................................9
Section 312 of H.R. 4546 – Changes to the ESA.................9
Senate Bills.................................................10
ESA Provisions..........................................10
MBTA Provisions........................................10
P.L. 107-314, enacted December 2, 2002. .........................11
MBTA .................................................11
ESA ...................................................12
108^th Congress...................................................13
P.L. 108-136.................................................19

The Endangered Species Act (ESA), the
Migratory Bird Treaty Act (MBTA), and
Department of Defense (DOD) Readiness
Activities: Current Law and Legislative
Proposals
Introduction
This report provides a brief overview of how the Endangered Species Act¹²
(ESA) and the Migratory Bird Treaty Act (MBTA) and their relevant regulations
may apply to military training and readiness activities of the Department of Defense
(DOD). Military activities may “take” protected creatures directly (e.g,. killing with
ordnance during rifle, gunnery or assault drills), or might destroy habitat (e.g.,
artillery or bombing practices), even if these results are not the purpose of the
activities. The applicability of the MBTA and ESA to military readiness activities^th
has been controversial recently and legislation has been enacted in both the 107 and

108^th Congresses on these topics.

Although bills in the 107^th Congress addressed both the ESA and the MBTA,
P.L. 107-314 addressed only the MBTA. Section § 315 of that act directs that new
MBTA regulations be developed to exempt the Armed Forces for incidental taking³
of migratory birds during military readiness activities. Until such regulations are
finalized, § 315 provides that the prohibitions of the MBTA do not apply to the
incidental taking of migratory birds by a member of the Armed Forces during
military readiness activities. However, during the interim period the Secretary of
Defense, in consultation with the Secretary of the Interior, is to minimize and
mitigate, to the extent practicable, adverse impacts of the readiness activities on
affected migratory birds. Judicial review is preserved, but expedited in that
challenges to the regulations directed by the act must be filed not later than 120 days
from the date the regulations are published in the Federal Register. This act is
discussed more fully below.

¹ P.L. 93-205, 87 Stat. 884, 16 U.S.C. §§1531 et seq.
² Act of July 3, 1918, ch. 128, 40 Stat. 755, 16 U.S.C. §§703 – 712.
³ The final version was changed from previous versions, both with respect to both the
MBTA and the Endangered Species Act ESA. H.R. 4546 as passed by the House on May
10, 2002, included provisions in §§311 and 312 relating to military readiness activities and
the MBTA and ESA respectively. Section 1201 of S. 2225 contained similar, but slightly
different provisions. However, S. 2514, the DOD authorization bill reported by the Senate
Armed Services Committee and passed by the Senate, did not contain any ESA or MBTA
provisions. The enacted language eliminated the ESA provision of H.R. 4546 and changed
the MBTA provisions.

In the 108^th Congress, the Administration sent proposals for legislative changes
regarding the ESA and other environmental statutes to the Congress. Both S. 1050
and H.R. 1588 addressed designation of critical habitat under the ESA. H.R. 1588
passed the House on May 22, 2003. The Senate amended H.R. 1588 to substitute the
text of S. 1050, and passed the measure on June 4, 2003. The ESA-related language
was changed in conference and H.R. 1588 became P.L. 108-136, the National
Defense Authorization Act for Fiscal Year 2004. The new language that was
ultimately enacted as P.L. 108-136 precludes the designation of critical habitat on
Department of Defense lands that are subject to an integrated natural resources
management plan under the Sikes Act, if the Secretary determines in writing that the
plan provides a benefit to the species for which critical habitat is proposed for
designation. The duties of defense agencies to consult under § 7 of the ESA and to
comply with the prohibitions of § 9 of the ESA, including the “take” provisions,
expressly continue to apply. P.L. 108-136 also requires that impacts on national
security be considered when any critical habitat is designated.
This report discussed the statutes and issues involved and the various proposals
regarding the ESA and MBTA. It will be updated as circumstances warrant.⁴
The Endangered Species Act
The ESA is a federal statute that attempts to prevent the extinction of species
of plants and animals by providing special protections to those species listed as
“endangered” (those in danger of extinction throughout all or a significant portion of
its range, other than certain insect pests)⁵ or “threatened” (those so declining as to be⁶
likely to become endangered within the foreseeable future), and to foster the
“conservation,” or recovery, of those species to the point where they no longer need⁷
the protections of the act.
Applicability to Federal Activities. The ESA expressly applies to activities
of the federal government. The act defines “person” as including “any officer,
employee, agent, department, or instrumentality of the Federal Government ....”⁸
“Federal agency” is defined as any department, agency, or instrumentality of the
United States.⁹ The ESA requires several things of all federal agencies:

⁴ For current developments with respect to these issues see CRS Report RL31456, Defense
Cleanup and Environmental Programs: Authorizations and Appropriations for FY2003; and
CRS Issue Brief IB10072, Endangered Species: Difficult Choices.
⁵ 16 U.S.C. §1532(6).
⁶ 16 U.S.C. §1532(20).
⁷ 16 U.S.C. §§1531(b) and (c(1), 1532(3), and 1536(a).
⁸ 16 U.S.C. §1532 (13).
⁹ 16 U.S.C. §1532 (7).

1) that “a person” not “take” any species of fish or wildlife listed as¹⁰

endangered. Take includes harassing, harming, pursuing, hunting, shooting,
wounding, killing, trapping, capturing, or collecting, or attempting to do any of
these things. “Harm” is defined in a regulation as including destruction of
habitat that kills or injures wildlife by significantly impairing essential behavior
patterns, including breeding, feeding, or sheltering.¹¹
2) that agencies insure that actions they approve, fund, or carry out, not be likely
to jeopardize the continued existence of any endangered species or result in the
destruction or adverse modification of habitat designated by the appropriate
Secretary as critical to a species. To this end, each agency is to consult with the
Fish and Wildlife Service (FWS) or the National Marine Fisheries Service¹²
(NMFS), as appropriate, to avoid such jeopardy or destruction.

3) that all non-Department of Interior agencies have a duty to utilize their¹³

authorities “in furtherance of the purposes of [the Act],” (one of which is the
“conservation,” of species), and this is declared to be the policy of Congress as¹⁴
well. The terms “conserve” or “conservation” are defined basically as bringing¹⁵
a species to the point where it no longer needs the protections of the Act, and
thus goes beyond merely avoiding jeopardy.
Exceptions for Federal Activities That “Take”. The ESA contains
several alternatives by which DOD activities could proceed despite a likelihood that
members of a listed species might be taken. First, the §7 consultation procedure
allows the taking of listed creatures if the FWS or NMFS concludes that the action
will not jeopardize the continued existence of a listed species.¹⁶ An agency may be
required to adopt reasonable and prudent alternatives to its original proposed action
and to comply with other terms and conditions required by the Secretary of the
Interior.¹⁷

¹⁰ 16 U.S.C. §1538(a)(1)(B). This prohibition is extended to include threatened species by
regulation. 50 C. F. R. §17.31.
¹¹ 50 C.F.R. §17.3. This definition was upheld by the Supreme Court against a facial
challenge in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S.

687 (1995).

¹² Basically, the Secretary of the Interior has jurisdiction regarding terrestrial species and
the Secretary of Commerce has jurisdiction over marine or anadromous species.
¹³ 16 U.S.C. §1536(a)(1).
¹⁴ 16 U.S.C. §1531(b).
¹⁵ 16 U.S.C. §1532(3).
¹⁶ See 50 C.F.R. §402.
¹⁷ In FY2001, for example, FWS conducted 1,161 formal consultations, of which 71 resulted
in findings of jeopardy or adverse modification of critical habitat. in all 71 cases, FWS
offered “reasonable and prudent” modifications that would avoid jeopardy or adverse
modification, thereby allowing all the proposed actions to go forward. FWS Budget
Justification, FY2003, at 57.

In instances of irreconcilable conflict between a desired agency activity and the
avoidance of jeopardy, the ESA provides an exemption process whereby a high-level
“Endangered Species Committee” may be convened to consider a possible exemption
from the penalties of the act for an agency action.¹⁸ The process for obtaining an
exemption is somewhat rigorous and time-consuming and the exemption process has
seldom been utilized. The process also seems to contemplate exemptions for
particular, individual, proposed agency actions, rather than for generic or recurring
types of activities.
An exemption cannot be granted if the Secretary of State, after a review of the
proposed agency action, certifies that granting the exemption and carrying out an
action would violate an international treaty obligation or other international
obligation of the United States.¹⁹ This provision might affect the availability of an
exemption for military readiness activities that would destroy migratory birds.
Notwithstanding any other provision of the act, under §7(j) of the ESA (16
U.S.C. §1536(j)), an exemption must be granted for an agency action if the Secretary
of Defense finds the exemption is necessary for reasons of national security.
However, this alternative is only available as part of the Committee process, and
apparently would only apply to a particular national security activity that is likely to
jeopardize the continued existence of the species in question. An exemption under
this section of the act has never been sought, nor have there been any attempts to
administratively develop general exemptions for on-going or recurring activities.
The Migratory Bird Treaty Act
Application to Federal Activities. The MBTA is less clear than the ESA
in several respects, including its applicability to federal activities. The MBTA is a
criminal environmental statute, enacted in 1918 to implement the International
Convention for the Protection of Migratory Birds signed by the United States and
Great Britain (acting for Canada) only a few years earlier.²⁰ Section 2 (16 U.S.C.
§703) sets out the types of prohibited conduct and states: “Unless and except as
permitted by regulations ... , it shall be unlawful at any time, by any means, or in any
manner, to pursue, hunt, take, capture, kill, attempt to do these acts, [or] possess ...
any migratory bird, [or] any part, nest, or eggs of any such bird ....” None of these
terms is defined in the act.²¹ Note that “harm,” a term used in the ESA that
encompasses significant habitat destruction, is not present in the MBTA. Section 6

¹⁸ 16 U.S.C. §1536(e) - (p).
¹⁹ 16 U.S.C. §1536(i).
²⁰ 39 Stat. 1702 (1916). Since 1918, the MBTA also has become the vehicle for
implementing bilateral migratory bird treaties between the United States and Mexico (1936),
Japan (1972), and the Union of Soviet Socialist Republics (1978).
²¹ Fish and Wildlife Service regulations define “take” broadly for purposes of the MBTA
(and specified other wildlife statutes) to embrace several of the MBTA-listed items. “Take,”
the regulations state, “means to pursue, hunt, shoot, wound, kill, trap, capture, or collect”
or to attempt the foregoing. 50 C.F.R. §10.12.

(16 U.S.C. §707) makes “any person, association, partnership, or corporation” who
violates the MBTA or regulations thereunder subject to penalties. “Person” is not
defined.
Courts have split on the issue of whether the MBTA applies to federal agencies.
The Supreme Court assumed without discussion that §2 applied to Forest Service and
Bureau of Land Management logging planning decisions for lands inhabited by a bird
protected by the MBTA.²² In 1997, two circuit-court decisions, both involving
Forest Service timber sales, held that the MBTA does not apply to federal agencies.
Each circuit – the Eighth Circuit in Newton County Wildlife Ass’n v. U.S. Forest
Service,²³ and the Eleventh Circuit in Sierra Club v. Martin²⁴ – drew support for this
conclusion from the §6 criminal penalties language that mentions “any person,
association, partnership, or corporation,” terms that these courts concluded did not
include the United States. Considering the MBTA as a whole, they found no
violation of the MBTA by the federal agencies – which apparently means they
concluded that §2 (articulating what is unlawful behavior) also did not apply as a
matter of law.
However, in Humane Society of the United States v. Glickman,²⁵ involving a
Department of Agriculture goose management plan, the District of Columbia Circuit
ruled in favor of federal-agency coverage, noting that §2 neither premises its
prohibitions on the acts of “any person,” nor makes an exception for federal agencies.
Even assuming that “person” under the separate penalty provisions of §6 does not
reach federal agencies, the court continued, this is not dispositive in that the MBTA
can be enforced by means other than criminal penalties – in particular, by injunction.
The Department of the Interior decided not to appeal Humane Society.
Most recently, the United States District Court for the District of Columbia in
Center for Biological Diversity v. Pirie,²⁶ held that the United States had violated the
MBTA by its live fire military training activities that killed migratory birds on an
island in the Marianas without a permit. The court again noted that §2 (addressing
unlawful acts) is worded generally, and that relief other than criminal penalties was
available in the form of injunctive relief. The court initially ruled only on the liability
issue, asked for additional briefing on many questions, including the availability and
structuring of possible injunctive relief. The court subsequently enjoined the Navy
from continuing its activities and required it to apply for a permit from FWS. On
June 5, 2002, the court stayed the injunction, thereby allowing training activities to
continue, and expedited the briefing schedule.
The MBTA is unclear in other ways as well. Because the definition of “take”
does not include “harm” or “harass,” as does the ESA, the application of the act to

²² Robertson v. Seattle Audubon Society, 503 U.S. 429, 437-438 (1992).
²³ 113 F.3d 110 (8^th Cir. 1997).
²⁴ 110 F.3d 1551 (11^th Cir. 1997).
²⁵ 217 F.3d 882 (D.C. Cir. 2000).
²⁶ 191 F. Supp. 2d 161 (D. D.C. 2002), 2002 U.S. Dist. LEXIS 4112.

habitat destruction or other indirect take is unclear. It also lacks the express
recognition of “incidental take” that §10 and (by implication) §7 of the ESA contain,
and there has been some confusion between “unintentional” takes relevant to possible
convictions under §6 of the act, and “incidental” takes, where a deliberate action
taken for a particular purpose also results in a taking or killing. These distinctions
are important to military readiness activities where deadly force may be used that
kills protected birds and destroys habitat, but where such killing or destruction is not
the purpose of the activities.
“Intent”. Courts applying a criminal statute may need to probe the “scienter”
of a defendant – the defendant’s intent or knowledge of facts that are elements of the
crime. Intent in this sense may focus of whether a defendant intended to do the acts
that resulted in the harm, regardless of whether the exact results that ensue were
intended. At times, lay people confuse “unintended” used in the context of criminal
provisions with “incidental” as that term is used in the ESA, meaning the actions
were taken intentionally, but were for a different purpose. Courts have often
concluded that intent is immaterial to misdemeanor violations under §6(a) of the
MBTA – that if a person commits acts that kill a protected bird, that is a violation.²⁷
In contrast with the misdemeanor provision, a felony under §6(b) results only when
the defendant “knowingly” either takes a migratory bird (with intent to sell) or sells²⁸
or attempts to sell such birds. The word “knowingly” was added by a 1986
amendment.²⁹ The Navy in the Pirie case may have confused unintentional acts with
incidental acts when it essentially argued that it had not violated the MBTA because
it did not intend to kill birds – in the sense that killing the birds was not the purpose
of its actions. The Pirie court noted (p. 35) that the Navy knew it was killing birds,
even though that was not the Navy’s purpose; that the MBTA applies to both
intentional and unintentional takings (p. 36); and that the prosecutorial discretion of
the FWS did not make the Navy’s actions unreviewable (p. 44).
Direct vs. Indirect Take. Other cases involve discussions of possible MBTA
liability for direct vs. indirect, and incidental takes. In Seattle Audubon Society v.
Evans,³⁰ the Ninth Circuit addressed claims that the MBTA prohibits the Forest
Service and Bureau of Land Management from logging timber from lands that may
provide habitat for a protected bird. In rejecting this claim, the court held that
previous cases only addressed direct, though unintended, bird deaths. They do not

²⁷ In United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978), it was found sufficient if a
defendant created hazardous circumstances that ultimately killed migratory birds, though
the defendant had no intention of harming such birds. In United States v. Corbin Farm^th
Service, 444 F. Supp. 510 (E.D. Cal.), aff’d on other grounds, 578 F.2d 259 (9 Cir. 1978),
birds died after feeding on a crop sprayed with a registered pesticide. See also United States^th
v. Corrow, 119 F.3d 796 (10 Cir. 1997), whose strict liability holding was followed in
United States v. Moon Lake Elec. Ass’n, 45 F. Supp. 2d 1070, 1073-1074 (D. Colo. 1999),
which held that the MBTA regulates both “intentionally harmful” and “unintentionally
harmful” conduct, and rejected the reading that the MBTA regulated only the conduct
exhibited by hunters and poachers.
²⁸ 16 U.S.C. §707(b).
²⁹ P.L. 99-645, § 501.
³⁰ 952 F.2d 297 (9^th Cir. 1991).

suggest, the Ninth Circuit said, that habitat destruction, leading indirectly to bird
deaths, is a “taking” under the MBTA. The court bolstered this conclusion by
juxtaposing the MBTA, which does not include “harm,” with the ESA, which does.
In revealing contrast, noted the court, neither the MBTA nor its regulations makes
any mention of habitat modification. Rather, MBTA regulations describe, in the
words of the court, “physical conduct of the sort engaged in by hunters and poachers,
conduct which was undoubtedly a concern at the time of the statute’s enactment in

1918.”³¹

There evidently is even some confusion as to what constitutes direct harm.
Since Seattle Audubon, other cases have found no takings, even, for example, for the
harvesting of trees during nesting season, which arguably killed birds directly.³² The
courts in both Mahler and Newton County³³ quoted the “conduct of the sort engaged
in by hunters and poachers” language from Seattle Audubon in seeming to rule out
MBTA coverage of timbering under any circumstances.³⁴ Another post-Seattle
Audubon decision to the contrary merely assumed that timber cutting could violate
the MBTA, and thus is weak precedent.³⁵
Permits. Under §2 of the MBTA, those takes that are not permitted under the
regulations are unlawful; the Pirie case faulted the Navy for conducting its live fire
training operations without a permit. Although the regulations set out many types of
permits, none currently specifically address DOD training or readiness activities.
Evidently, various DOD activities have been permitted in the past under the permit
to kill depredating birds,³⁶ but the FWS denied a permit for the training exercises in³⁷
question in Pirie. “Special purpose” permits may be issued for activities related to
migratory birds which are otherwise outside the scope of the standard form permits
if an applicant presents a “compelling justification.” However, there are no current
standards for permitting or regulating military readiness and training activities, and
this permit has not been used to date. The Pirie court noted that the FWS had
refused to issue the Navy a permit because FWS asserted that it lacked the authority

³¹ Id. at 302. District court decisions in accord include Citizens Interested in Bull Run, Inc.
v. Edrington, 781 F. Supp. 1502 (D. Ore. 1991), and Portland Audubon Society v. Lujan,

1991 Westlaw 81838 (D. Ore. May 8, 1991).

³² Mahler v. U.S. Forest Service, 927 F. Supp. 1559 (S.D. Ind. 1996).
³³ Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F. 3d 110 (8^th Cir. 1997).
³⁴ In United States v. Moon Lake Elec. Ass’n, 45 F. Supp. 2d 1070 (D. Colo. 1999), the
court vigorously rejected that part of Seattle Audubon which may be read to hold that the
MBTA regulates only the conduct exhibited by hunters and poachers. However, because
this case involved a criminal information alleging electrocution of protected birds when they
landed on defendant’s transmission lines, the court had no occasion to comment on whether
its something-more-than-hunters-and-poachers view reached as far as habitat modification.
³⁵ Sierra Club v. Martin, 110 F.3d 1551, 1555 (11^th Cir. 1997). In Humane Society of the
United States v. Glickman, 217 F.3d 882, 888 (D.C. Cir. 2000), the court observed that
“[t]he Martin court’s assumption that timber harvesting could violate the [MBTA] is not
shared by others.”
³⁶ 50 C.F.R. §21.41.
³⁷ 50 C.F.R. §21.27.

to issue permits authorizing unintended conduct (p. 13) (by which they appear to
have meant incidental conduct). If this remains the position of the FWS, special
purpose permits may continue to be unavailable to the Navy. The court asked for
additional briefing on the permit authority of FWS under the MBTA, and
subsequently enjoined the Navy from additional activities, while also ordering the
Navy to apply for a permit. The court noted that FWS had denied the permits in the
past, and therefore a temporary injunction was appropriate. The court also stated that
it would take prompt action if there were either administrative or congressional
action (May 1, 2002 Order, at 19).³⁸ The Navy has applied to FWS for a special
purpose permit and action is currently pending. On June 5, 2002, the court stayed its
injunction, thereby allowing training activities to continue.
Executive Order. An executive order signed by President Clinton imposes
additional obligations on federal agencies to protect migratory birds.³⁹ Section 2 of⁴⁰
the executive order defines “take” as defined in 50 C.F.R. §10.12, and as including
both “intentional” and “unintentional” take. It defines “intentional take” as take that
is the purpose of the activity in question, and “unintentional take” as take that results
from, but is not the purpose of, the activity in question (again confusing unintentional
and incidental takes). The order then commands each federal agency whose actions
are likely to have a “measurable negative effect” on migratory birds to enter into a
memorandum of understanding with the Fish and Wildlife Service, to the extent
permitted by law, to “minimize” the intentional take of species of concern, and
“lessen” the amount of unintentional take.
The executive order’s definition of “take” is not dispositive for purposes of
divining the meaning of “take” as used in the MBTA, of course, though a court might
accord it some persuasive value.

³⁸ Section 3 of the MBTA authorizes the Secretary to issue regulations, but “[s]ubject to the
provisions [of the act] and in order to carry out the purposes of the conventions.” Therefore,
the issue of the current authority of the Secretary to issue permits may again come before
the courts.
³⁹ Responsibilities of Federal Agencies to Protect Migratory Birds, Exec. Order No. 13186,

66 Fed. Reg. 3853 (Jan. 17, 2001), still in effect as of March 20, 2003.

⁴⁰ See note 4 supra.

107^th Congress
House Bills
Section 311 of H.R. 4546 as Passed by House – Changes to the
MBTA. Sections 311 and 312 of H.R. 4546 as passed by the House would have
amended the MBTA and ESA respectively. It will be recalled that the Pirie case
found that the military training activities of the Navy conducted on an island in the
Marianas violated §2 of the MBTA. Evidently, according to that case, the Navy in
that instance was conducting operations without a permit, based on the initial
position of the FWS that the FWS lacked the authority to issue a permit for incidental
taking of protected birds. The training activities in question are seen as crucial to the
Navy, and are frequent and recurring, a type of activity not easily accommodated
under the current system. The FWS later concluded that it did have the authority to
issue permits.
Section 311 would have amended §3 of the MBTA (which authorizes the
Secretary of the Interior to promulgate regulations to implement the act), by adding
a new subsection that defines “military readiness activity” and provides that “Section
2 shall not apply to the incidental taking of a migratory bird by a member of the
Armed Forces during a military readiness activity authorized by the Secretary of
Defense or the Secretary of the military department concerned.” (Emphasis added.)
Because §2 of the MBTA, as discussed above, sets out what behavior is
unlawful under that act, § 311 would appear to have made all incidental take of
migratory birds during military readiness activities lawful. The provision did not
require the military to prioritize readiness activities, or to avoid or minimize harm,
nor was any permitting process established or required, despite Committee report⁴¹
language to that effect. If §2 did “not apply” to readiness activities, arguably there
was nothing that needed a permit. These provisions were changed significantly in the
final enactment. See the discussion of P. L. 107-314 below.
Section 312 of H.R. 4546 – Changes to the ESA. Section 312 of H.R.
4546 as passed by the House would have eliminated the designation of critical habitat
on military lands that were “subject to” an integrated natural resources management⁴²
plan (INRMP) under the Sikes Act, and if the Secretary determined that such a plan
“addressed” special management considerations or protection (as those terms are
used in section 3(5)(A)(i));” two requirements that were somewhat vague as to what
might be required. This provision was not enacted, but similar provisions are^th
contained in the Administration’s proposal in the 108 Congress and are discussed
more fully under that part of this report. In addition, although the ESA currently
allows the Secretary to consider “all relevant impacts” during the designation
process, §312 would have added “the impact on national security” after “the

⁴¹ H.Rept. 107-436 at 294 (2002).
⁴² H.Rept. 107-436 at 295 (2002).

economic impact,” thereby expressly requiring consideration of national security
issues during any designation process.⁴³
Senate Bills
S. 2514, reported by the Senate Armed Services Committee did not contain ESA
and MBTA provisions. However, S. 2225 did contain such provisions, which are
discussed here. Section 1201 of S. 2225 would have added a new chapter to Title 10
of the United States Code to address the relationship of military readiness activities
to the ESA and MBTA and certain other topics beyond the scope of this report. A
new §2016 would have added definitions of “military readiness activities” and
“combat” or “combat use” that were similar to those in the House bill.
ESA Provisions. New §2017 would have addressed the ESA and the MBTA
(and marine mammal protection as well). As to the ESA, §2017(a) would have stated
that completion of an INRMP under the Sikes Act that “addresses” endangered or
threatened species and their habitat per se would provide the “special management
considerations or protections” that are part of the definition of what might constitute
critical habitat in the ESA. The INRMP plan, S. 2225 continues, “precludes
designation of critical habitat” for the lands or areas covered by the Sikes Act plan.
This provision differs from the House version in that it expressly requires a
completed Sikes Act plan, but is similar to the House language in that it would
eliminate critical habitat designation on those lands if there is an INRMP that
“addresses” species. Therefore, the comments made above with respect to the this
language apply to the Senate provision as well.
MBTA Provisions. New §2017(b) would have provided that DOD military
readiness activities would be authorized “without further action by the Secretary of
the Interior” provided that DOD must “minimize taking of migratory birds to the
extent practical and necessary” to further the purposes of the act (by which it is not
clear whether the MBTA or the new statute is intended), “without diminishment of
military training or other capabilities, as determined by the Department.”
This language might have eliminated the issuance of a permit by the Secretary
of the Interior for DOD military readiness activities. It also required DOD to
minimize taking of migratory birds, to the extent practical and necessary “without
diminishment” of military training or other capabilities. It is not clear to what extent
the “without diminishment” wording might affect the number of takings. The
remainder of the sentence refers to takings “resulting from military training or other
capabilities” and it is not clear what activities were encompassed within this
phrasing, since only “military readiness activities” was defined in the bill. Therefore,
the scope of the waiver was not clear. In addition, the relevant determinations were
to be made by the Department, and as such might not have been reviewable by a
court.

⁴³ Section 3 of S. 911 would also add language to require consideration of the “impacts to
military training and operations” as part of the designation of critical habitat process.

P.L. 107-314, enacted December 2, 2002.
The enacted version of H.R. 4546⁴⁴ is silent on the ESA, but § 315 provides for
new interim MBTA provisions, and the conference report discusses the ESA.
MBTA. Section 315 provides that during a period of time, § 2 of the Migratory
Bird Treaty Act (which makes taking listed migratory birds unlawful) does not apply
to the incidental taking of a migratory bird by a member of the Armed Forces during
a military readiness activity authorized by the Secretary of Defense or the Secretary
of the military department concerned. Military readiness activity is defined in
subsection (f) as including (A) all training and operations of the Armed Forces that
relate to combat; and (B) the adequate and realistic testing of military equipment,
vehicles, weapons, and sensors for proper operation and suitability for combat use.
Other activities are expressly excluded from the definition, including “routine
operation of installation operating support functions” (with several examples set out),
operation of industrial activities, and the construction or demolition of facilities used
for these purposes.
The period during which the interim provisions are to be in effect is to last from
the date of enactment until whenever new regulations to exempt the Armed Forces
for the incidental taking of migratory birds during military readiness activities are
“prescribed,” all challenges to them have been exhausted, and the regulations have
taken effect. The regulations were to have been developed by the Secretary with the
concurrence of the Secretary of Defense, and be “prescribed” not later than the
expiration of the one-year period beginning on the date of enactment. It is not clear
whether this means the regulations need only be proposed within the one-year time,
or must be finalized within that time. The explanatory material in the conference
report does not answer this question, but arguably the section read as a whole seems
to mean the regulations were to be completed within that time.⁴⁵ Judicial review of
the regulations is preserved, but is expedited in that all challenges must be filed
within 120 days of the date the regulations appear in the Federal Register.
During the interim period in which the Armed Forces are exempted from the
prohibitions of the MBTA, the Secretary of Defense, in consultation with the
Secretary of the Interior, is to identify measures to minimize and mitigate, to the
extent practicable, any adverse impacts of authorized military readiness activities on
affected species of migratory birds, and to monitor the impacts of military readiness
activities on affected species.
New regulations were proposed on June 2, 2004,⁴⁶ well after the deadline.
Under the proposed regulations, the taking of migratory birds incidental to military
readiness activities would be authorized, but with certain limitations. If the Secretary
determines after seeking the views of the Secretary of Defense and consulting with

⁴⁴ See H.Rept. 107-772 (2002), set out at 148 Cong. Rec. H8092 et seq. (Daily ed. November

12, 2002).

⁴⁵ H.Rept. 107-772 at H8450.
⁴⁶ 69 Fed. Reg. 31,074.

the Secretary of State, that the taking of migratory birds in connection with a specific
military readiness activity would not be compatible with one or more of the migratory
bird treaties, the Secretary must suspend the authorization of the take associated with
that activity. If the activity may result in a significant adverse effect on the
sustainability of a population of a migratory bird species of concern and one or more
of stated circumstances exists, the Secretary may propose to withdraw the take
authorization. Significant adverse effect on the sustainability of a population is
defined as an effect that could result in a population no longer being maintained at
a ‘biologically viable level for the long term.’ Being biologically viable for the long
term, in turn, means the ability of the population to maintain its genetic diversity, to
reproduce, and to perform its role or function in its native ecosystem.⁴⁷
The circumstances that may be present and result in a proposal to withdraw take
authority involve such things as failure of DOD to implement conservation measures
or to conduct mutually agreed upon monitoring, or to provide information. A
proposal to withdraw authorization must be made in writing and provided to the
Secretary of Defense. DOD may notify the Secretary of the Interior of any objections
and possibly also meet with the Secretary. Withdrawal proposals or suspensions may
be cancelled if DOD modifies the proposed activity to alleviate significant adverse
effect on the sustainability of a population, or the additional circumstances no longer
exist.
The term Secretary of Defense is defined as including the Department of
Homeland Security (DHS) with respect to military readiness activities of the United
States Coast Guard, but some of the substantive provisions of the proposed
regulations are worded in terms of actions taken by the Department of Defense.
These provisions may need to be clarified to make the intended applicability to DHS
clear and consistent.
ESA. P.L. 107-314 is silent as to ESA issues, but the explanatory material in
the conference report states that while compliance with environmental laws is
expected, “unique challenges” often face the Armed Forces, one of which is the
balancing of habitat protection with necessary activities. The conference report calls
for the Secretary of Defense to provide the relevant committees with
recommendations for legislative proposals the Secretary considers necessary to
accomplish avoidance of designation of critical habitat on bases that could affect
military training through protections provided by Integrated Natural Resources
Management Plans, and recommendations on pursuing a cooperative approach in
managing natural and cultural resources throughout the Armed Forces. The relevant
text of the conference report reads as follows:
The conferees believe that all federal agencies, including the Armed Forces,
should be required to comply with all federal environmental laws. However, due
to their unique military training and operational responsibilities, the Armed
Forces often face unique challenges in balancing the obligations to comply with
environmental laws and sustain military readiness. Examples of these challenges
include increasing limitations and restrictions on lands and waters which are
currently set aside for military training exercises as well as significant

⁴⁷ Id., at 31,084.

restrictions on the times and conditions under which military training exercises
can be conducted. The conferees are concerned that future designations of
critical habitat on military training ranges could have an adverse impact on the
military’s readiness capabilities.
The conferees strongly endorse the consultative process through which the
military services work with the Fish and Wildlife Service to ensure the protection
of threatened and endangered species by adopting effective Integrated Natural
Resources Management Plans at military installations. The conferees are
concerned that questions have been raised regarding whether the protections
provided by these Integrated Natural Resources Management Plans, such as the
one at Marine Corps Base, Camp Pendleton, California, are sufficient to avoid
the need for future designations of critical habitat that could adversely affect
military training. Nevertheless, the conferees encourage the Department of the
Interior and the Department of Defense to pursue a cooperative approach in
managing natural and cultural resources throughout the Armed Forces.
The conferees direct the Secretary of Defense to provide the Committees on
Armed Services of the Senate and the House of Representatives
recommendations for any legislative proposals that he considers necessary to⁴⁸
accomplish these stated goals.
108^th Congress
The Administration submitted a legislative proposal to the 108^th Congress that
again addressed the designation of critical habitat on Department of Defense lands.
The proposal stated that an Integrated Natural Resources Management Plan (INRMP)
completed under the Sikes Act Improvement Act for lands or “other geographical
areas” owned or controlled by DOD or designated for its use that “addresses”
endangered or threatened species and their habitat “provides the ‘special management
considerations or protection’ required under the ESA and precludes designation of
critical habitat for the lands, but does not eliminate the § 7 requirement to consult on
actions likely to jeopardize the continued existence of listed species. The full text of
the Administration’s proposal reads:
2017. Military readiness and the conservation of protected species
(a) The completion of an Integrated Natural Resources Management Plan,
pursuant to the Sikes Act Improvement Act (16 U.S.C. 670a), for lands or other
geographical areas owned or controlled by the Department, or designated for its
use, that addresses endangered or threatened species and their habitat, provides
the ‘special management considerations or protection’ required under the
Endangered Species Act (16 U.S.C. 1532(5)(A)) and precludes designation of
critical habitat for any such land or geographical areas under section 4 of the
Endangered Species Act (16 U.S.C. 1533).
(b) This section does not remove the requirement for agency consultation
under section 7(a)(2) of the Endangered Species Act (16 U.S.C. 1536(a)(2)).

⁴⁸ H.Rept. 107-772 at H8452.

H.R. 1588, as passed by the House on May 22, 2003, took a similar approach
– but with important differences that will be discussed – and also added an additional
express requirement that impacts on national security be considered when critical
habitat is designated.
Current law recognizes that habitat destruction is a very important factor in the
endangerment of species,⁴⁹ and the appropriate Secretary is to designate critical
habitat, which is defined in part as areas in which are found physical or biological
features essential to the conservation of the species and which may require special
management considerations or protection.⁵⁰ The appropriate Secretary is to designate
critical habitat on the basis of the best scientific data available and after taking into
consideration the economic impact, and “any other relevant impact,” of specifying
any particular area as critical habitat. The Secretary also may exclude any area from
designation if he determines that the benefits of exclusion outweigh the benefits of
specifying an area, unless he determines, based on the best scientific and commercial
data available, that failure to designate an area as critical habitat will result in the
extinction of the species concerned.⁵¹
The Sikes Act⁵² requires a planning process for military installations, which are
defined as any lands or interest in lands owned by the United States and administered
by the Secretary of Defense or a military department (except those for civil works)
and includes all public lands withdrawn or reserved for use by the Secretary of
Defense or a military department.⁵³

⁴⁹ 16 U.S.C. §1533(a)(1)(A).
⁵⁰ 16 U.S.C. §1531(5). The FWS has not been designating critical habitat for many listed
species. As of May 16, 2002, out of 1,258 listed plants and animals, 152 species have at
least some portion of their range designated as critical habitat. FWS website:
[ h t t p : / / www.e nda nge r e d.f ws .gov]
⁵¹ 16 U.S.C. § 1533(b)(2). As reported from committee, H.R. 1588 also would have changed
the general ESA language which currently requires that critical habitat be designated for all
listed species “to the maximum extent prudent and determinable.” The “prudent and
determinable” language functions as an exception to the absolute requirement for
designation that otherwise applies – critical habitat might not be designated if it is not
determinable (as, for example, if so little is known about a species), or is not prudent (for
example, if there are only 12 individuals left of one species on a very limited habitat and
collectors might destroy them if their location were known). H.R. 1588, as reported, would
have stricken the “prudent and determinable” language and substituted “necessary.” This
change would have eliminated the general requirement that critical habitat be designated in
every case, subject to the two exceptions discussed above, and substituted a determination
by the Secretary concerned that designation is “necessary” for that species. Even if
designation were necessary, there would have been no exception if the Secretary determined
that designation would not be prudent. These would have been significant changes, and
would have applied to all designations, not just those on DOD lands. The language was
deleted before passage.
⁵² P.L. 86-797, 74 Stat. 1052, amended significantly in 1997 by the Sikes Act Improvement
Act, P.L. 105-85, Div. B, title XXIX, 111 Stat. 2116.
⁵³ 16 U.S.C. §670.

The Sikes Act planning process is not the same as the designation of critical
habitat process under the ESA. Under the Sikes Act, the Secretary of Defense is
directed to carry out a program to provide for the conservation and rehabilitation of
natural resources on military installations,⁵⁴ and the Secretary of each military
department is to prepare and implement an integrated natural resources management
plan for each military installation unless an installation lacks significant natural
resources.⁵⁵
These plans are to be developed in cooperation with the Secretary of the Interior,
acting through the Director of the FWS and the head of each appropriate state fish
and wildlife agency.⁵⁶ Consistent with other federal law, and consistent with the use
of military installations to ensure the preparedness of the Armed Forces, a plan shall
“to the extent appropriate and applicable,” provide for fish and wildlife management,
land management, forest management and fish and wildlife-oriented recreation,
habitat enhancement or modifications, enforcement of applicable natural resources
laws and regulations, and other things, but with “no net loss” in the capability of
military installation lands to support the military mission of the installation.⁵⁷ There
are no express standards or requirements with respect to endangered or threatened
species, and the ESA presumably currently functions as an overlay of requirements
when listed species are present.
In contrast, a critical habitat designation is developed based on the best available
scientific information with the conservation of endangered species as the goal. A
designation may include military lands, but without military preparedness as a focus.
Some have argued that clarification of the way in which the two purposes – that of
protecting endangered species and that of maintaining military training and readiness
– are to be reconciled would be advisable, and that some means of prioritizing the
military needs and better facilitating their accomplishment within parameters might
also be desirable. Others assert that the need for special provisions has not been
adequately demonstrated.
H.R. 1588 as passed by the House would have precluded designation of critical
habitat if the relevant Secretary determines that an INRMP “addresses” “special
management considerations or protection” as those terms are used in the ESA.
“Addresses” is a general term and the provision does not contain any standards with
which compliance is required or which would establish equivalence with the “special
management considerations or protection” referenced in the ESA. Therefore, there
would appear to be broad administrative discretion in determining how much detail
a plan must contain to “address” listed species and provide protections, and the
adequacy of INRMPs appears difficult for a court to review.
Several administrative interpretations bear on this legislative language. The
FWS and others have asserted that designation of critical habitat provides little

⁵⁴ 16 U.S.C. §670a(a)(1)(A).
⁵⁵ 16 U.S.C. §670a(a)(1)(B).
⁵⁶ 16 U.S.C. §670a(a)(2).
⁵⁷ 16 U.S.C. §670a(b).

additional protection to most listed species beyond the protections provided by the
requirement to avoid jeopardy anyway.⁵⁸ To the extent this assertion appears to be
true, it arises from a FWS regulation that has now been held to be unlawful. It will
be recalled that under the ESA federal agencies must consult on actions that either
might jeopardize a species or cause the destruction or adverse modification of critical
habitat. However, the FWS has conflated these two duties by defining “destruction
or adverse modification” as meaning “a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and recovery of a listed
species ...”⁵⁹ and then interpreting this last phrase as essentially meaning “survival,”
and therefore as being synonymous with jeopardy in most instances.⁶⁰ Because it
conflated two statutory requirements, the agency then concludes that designation of
critical habitat generally adds nothing that is not already covered by the jeopardy
concept. As a result, the FWS has given designation a very low priority,⁶¹
substituting instead general agency assertions that agency consideration of habitat
needs and effects has been adequate. However, the courts have found that the agency
does have a duty to designate critical habitat,⁶² and the regulation in question has
been held to be unlawful.
The United States Court of Appeals for the Fifth Circuit has held⁶³ that 50
C.F.R. §402.02 is facially invalid in that it requires consultation with respect to an
agency’s destruction of critical habitat if both survival as well as recovery of a
species is affected – which standard devolves to a jeopardy standard in practice in
almost all cases. The court noted that the ESA defines critical habitat as that which
is ‘essential for the conservation’ (i.e. recovery) of a species – a much more generous
standard that could encompass more habitat. By equating destruction of critical
habitat with jeopardizing a species, the regulatory interpretation eliminated the role

⁵⁸ See 64 Fed. Reg. 31872.
⁵⁹ 50 C.F.R. § 402.02. (emphasis added.)
⁶⁰ See 64 Fed. Reg. 31872, which states: “For almost all species, the adverse modification
and jeopardy standards are the same ....” Whatever Congress may have intended by its
directive to avoid destruction or adverse modification of critical habitat, and whatever may
be said about the agency’s interpretation of its own phrase referring to “both survival and
recovery,” it is an elementary rule of statutory construction that a statute is to be interpreted
to avoid rendering any of its provisions inoperative or superfluous. 2A S^UTHERLANDS^TAT.^th
C^ONST. § 46.06 (5 ed.)(1992 Rev.). See also, M^I^C^HAELJ.B^{EAN AND}M^ELANI^EJ.
R^OW^LAND,T^HEE^VOLUTI^{ON OF}N^ATI^ONALW^IL^D^L^IF^EL^AW 251-261 (3d Ed.1997), Katherine
S. Yagerman, Protecting Critical Habitat Under the Federal Endangered Species Act, 20
E^NVTL.L. 811 (1990).
⁶¹ The FWS materials accompanying the June 14^th notice state that FWS designated critical
habitat for 113 of the listed 1,168 species, or about 9% at that time.
⁶² See, e.g., Conservation Council for Hawaii v. Babbitt, 24 F. Supp. 2d 1074, 1078 (D. Hi.
1998), in which the court set deadlines for the FWS to designate critical habitat for a number
of species, even if funds were short (a situation plaintiffs alleged FWS was partially
responsible for), and that agency relief from the burdens of listing lies with the Congress.
⁶³ Sierra Club v. United States Fish and Wildlife Service; National Marine Fisheries Service,
245 F. 3d 434 (5^th Cir. 2001). The inconsistency of the regulation with the ESA was noted
in New Mexico Cattle Growers Ass’n v. United States Fish and Wildlife Service, 248 F. 3d^th

1277, 1283 (10 Cir. 2001).

of critical habitat and rendered statutory language surplusage, and was not a valid
interpretation. A federal district court in another circuit has recently concurred in this
interpretation.⁶⁴ If the FWS interpretation of critical habitat has incorrectly assigned
it a minor role in species protection, then altering critical habitat protections on
military lands arguably may raise important issues.
Also, the ESA defines “critical habitat” as “areas ... on which are found those
physical or biological features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and ....”
(Emphasis added.) The FWS has interpreted this language⁶⁵ as meaning that if a
management plan exists that provides special management and protection measures
for an area, that area no longer meets the definition of critical habitat and cannot be
designated:
Special management and protection for the species are not required if adequate
management and protection are already in place. Adequate management or
protection is provided by a legally operative plan/agreement that addresses the
maintenance and improvement of the primary constituent elements important to
the species, and that manages for the long-term conservation of the species ....
We consider several factors to determine if a plan provides adequate
management or protection. These factors are: (1) Whether there is a current plan
specifying the management actions and whether such actions provide sufficient
conservation benefit to the species; (2) whether the plan provides assurances that
the conservation management strategies will be implemented; and (3) whether
the plan provides assurances that the conservation management strategies will be
effective (i.e., provide for periodic monitoring, adaptive management, and
revisions as necessary). If all of these criteria are met, then the lands covered
under the plan would likely no longer meet the definition of critical habitat and⁶⁶
designation would no longer be appropriate.
A recent district court case has said of the analogous situation of management
plans on Forest Service and Tribal lands, that this FWS interpretation of the ESA⁶⁷
definition of critical habitat is “nonsensical” and a “tortured construction ...

⁶⁴ American Motorcycle Association District 37 v. Norton, No. C 03-03807 SI, No. C 03-

02509 SI (N.D. Cal. 2004), available at [http://www.eswr.com/704/illstoncdcaop.pdf ],

visited by author 8/6/2004.
⁶⁵ See, for example, 67 Fed. Reg. 67968, 67982-67985 (November 7, 2002).
⁶⁶ Id., at 67982. In evaluating whether a plan is likely to be implemented, the FWS looks
to whether: (a) a plan or agreement exists that specifies the actions being implemented; (b)
there is a timely schedule for implementation; (c) there is a high probability that the funding
source(s) or other resources necessary to implement the actions will be available; and (d)
the party(ies) have the authority and long-term commitment to implement the plan. In
determining whether an action is likely to be effective, FWS considers whether: (a) the plan
specifically addresses the management needs, including reduction of threats to the species;
(b) such actions have been successful in the past; (c) there are provisions for monitoring and
assessment of the effectiveness of the management actions; and (d) adaptive management
principles have been incorporated into the plan.
⁶⁷ Center for Biological Diversity v. Norton, 240 F. Supp. 2d 1090, 1099 (D. Az. 2003).

impermissible and contrary to law.”⁶⁸ The court felt the statutory language meant
that habitat that may need special management and protections was eligible for
critical habitat designation – regardless of whether other special management and
protection might be provided. The court further noted that the FWS interpretation
would eliminate “a crucial part” of the § 7 consultation requirement – that federal
agencies consult on adverse modification of critical habitat, and that other recent
court cases on related matters should have put FWS on notice that its approach was
“untenable and in contravention of the ESA.”⁶⁹
As passed by the House, H.R. 1588 would have amended the ESA to essentially
incorporate the FWS interpretation of the definition of critical habitat that the courts
have questioned. The bill states that the Secretary [of Interior or Commerce] shall
not designate DOD lands as critical habitat that are subject to an INRMP if the
Secretary determines that such plan addresses special management considerations or
protection as those terms are used in the ESA. (Emphasis added.) As discussed in
the preceding section of this report, however, at least one court has now determined
that the FWS reading of those terms is not how they actually are used in the act.
H.R. 1588 expressly required consideration of the impact on national security
whenever the Secretary considers designating critical habitat. The House-passed bill
also would have preserved the duty to consult under § 7 of the ESA and to comply
with the prohibitions of § 9 of that act.
S. 1050, as passed on May 22, 2003 would have precluded designation of
critical habitat on DOD lands if the Secretary determined in writing that the
management activities identified in an INRMP would “effectively conserve” listed
species in the area covered by the plan, and that the plan provides assurances that
adequate funding will be provided for such management activities. The “effectively
conserve” language arguably would have imposed a more strict requirement than the
current interpretation of FWS.
Under the ESA, all federal agencies have a general duty to “conserve” species,
which means to bring them to the point where they no longer need the protections of
the act, i.e. to recover them.⁷⁰ Critical habitat is that which is “essential to the
conservation of the species.” The Senate language – by requiring that the
management activities identified in an INRMP effectively conserve listed species –
arguably is broad and addresses the general duty to conserve, rather than speaking
only to some requirement equivalent to designating critical habitat. The Senate
provision would have been an addition to Title 10 of the United States Code, rather
than an amendment to the ESA, and only addressed the Secretary of Interior and not
ESA-related actions that might be taken by the Secretary of Commerce. The Senate
language also would not affect the requirement to consult under § 7 of the ESA, but
did not add an express requirement to consider impacts on national security to the
elements that must be weighed in designating critical habitat.

⁶⁸ Id., at 1100.
⁶⁹ Id., at 1103.
⁷⁰ 16 U.S.C. § 1532(3).

P.L. 108-136
The enacted language on critical habitat differs from both the House and Senate
bills. Section 318(a) of P.L. 108-136 precludes the designation of critical habitat on
lands owned or controlled by the Department of Defense, or designated for its use,
that are “subject to” an INRMP under the Sikes Act, if the Secretary determines in
writing that “such plan” “provides a benefit” to the species “for which critical habitat
is proposed” for designation. This language is somewhat ambiguous in that most
DOD lands are “subject to” having an INRMP under the Sikes Act. Assuming that
the intended meaning is that the DOD lands have in place a completed INRMP, that
plan must be determined to “provide a benefit” to a listed species – arguably a low
threshold for the Secretary to demonstrate. The conference report states:
... This approach would allow for a balance between military training
requirements and protection of endangered or threatened species, as pertains to
pending or future critical habitat designations.
The conferees would expect the Secretary of the Interior to assess an
INRMP’s potential contribution to species conservation, giving due regard to
those habitat protection, maintenance, and improvement projects and other
related activities specified in the plan that address the particular conservation and
protection needs of the species for which critical habitat would otherwise be
proposed. Consistent with current practice, the Secretary would establish criteria
that would be used to determine if an INRMP benefits the listed species for⁷¹
which critical habitat would be proposed.
The report language refers to species for which critical habitat “would otherwise
be proposed,” but the statutory language refers to species for which critical habitat
is proposed. The wording contained in the report is probably what was intended, but
the enacted language arguably requires a formal proposal of critical habitat before the
findings as to INRMP coverage can be made.
Section 318(a) also adds language to section 4(a)((3) of the ESA that states that
nothing in that paragraph relating to non-designation of critical habitat on DOD lands
affects the requirement to consult under section 7(a)(2) of the ESA – though it
appears the new language would affect consultation in that there could be no
consultation regarding adverse modification of critical habitat if no critical habitat
is designated on DOD lands where some agency action is proposed. Consultation
would still occur on actions likely to jeopardize a listed species, and the prohibitions
of §9 on takings also remain – and, as discussed, takings could include harming a
species through destruction of its habitat that kills or injures directly or through
certain behavioral changes. Although the change would eliminate one subject of
consultation – adverse effects on critical habitat, – the consultation process may still
result in the modification of proposed agency actions or in a jeopardy opinion being
rendered on other grounds, such that a military agency might still need to consider
going through the exemption process.

⁷¹ H.Rept. 108-354 at 668 (2003).

Section 318(b) of P.L. 108-136 requires the consideration of the impact on
national security whenever the Secretary considers designating critical habitat for a
species.
Section 318, as enacted, is entitled “Military Readiness and Conservation of
Protected Species,” but does not specifically link the new provisions on ESA
compliance to military readiness activities.⁷² Section 320 directs a study of the
impact, if any, of compliance by the Department of Defense with various
environmental laws on military installations and operational ranges.
To summarize, P.L. 108-136 appears to preclude designation of critical habitat
on DOD lands if an INRMP is in place that the Secretary of the Interior determines
benefits listed species. Completion of an INRMP arguably is not equivalent to a
requirement to designate critical habitat, in that Sikes Act INRMPs meet military
objectives first and ESA objectives only secondarily – a difference that some may see
as a necessary or desirable accommodation to military readiness needs, and some
may not.

⁷² In contrast, the changes in § 319 on marine mammal protection are linked to military
readiness activities.