Although the DoD has a long history of positive contributions to the conservation of migratory birds (http://www.dodpif.org/), the Navy was sued successfully regarding the “unintentional take” of birds at a bombing range in the Western Pacific on the island of Farallon de Medinilla. The Migratory Bird Treaty Act has many provisions for the regulated “intentional taking” of migratory birds. Examples include waterfowl hunting, depredation of nuisance species, or birds that pose a safety hazard. However, the Act has no provision for the “unintentional taking” of migratory birds. That is, if birds are taken by accident or in conjunction with some activity (e.g. military operations) whose primary purpose is not the taking of birds, the law has no provision to issue a permit for such activities. Hence, there would be no legal way to conduct military operations if any birds were taken in the process. To address this problem and the legal decision against it at Farallon de Medinilla, the Navy sought and achieved legislative relief regarding “unintentional take” during military readiness operations in the FY 03 Defense Authorization Act. A Final Rule reflecting this was published on 28 February 2007 in the Federal Register.17
This change allows the military to obtain permits for the “unintentional take” of a migratory bird if it is in support of a military readiness operation. The specific details of this new procedure are spelled out in a memorandum of understanding between the DoD and FWS, as required by E.O. 13186 Migratory Birds that was signed on 31 July 2006. These procedures contain significant safeguards to ensure that the taking of birds is minimized when the new rule is used and that conservation measures are employed to compensate for the losses that may occur.18
Next Page: Marine Mammal Protection Act
Author
J. Douglas Ripley, Environmental Consultant U.S. Air Force (Retired)
With updates and Additional contributions by: James van Ness, Senior Level Attorney Advisor Office of the Secretary of Defense