Senate OKs Broad Waiver for Pentagon on Migratory Birds

Times Staff Writer

The Senate on Wednesday passed and sent to the president compromise legislation designed to give the Defense Department a broad exemption from the 1918 Migratory Bird Treaty Act, which protects 850 species of birds from harmful practices.

The bill, which passed the House on Tuesday, is only a partial victory for the Pentagon, which had sought exemptions from eight landmark environmental laws, including the Endangered Species Act, the Clean Air Act, the Clean Water Act and the Marine Mammal Protection Act. Nonetheless, environmentalists and their supporters in Congress were outraged at the migratory bird waiver.

“The provision, which was inserted at the Bush administration’s request, will effectively give the Defense Department license to bomb and destroy at will the natural habitats of migratory birds, endangering more than 1 million birds and curtailing the enjoyment of more than 50 million bird enthusiasts in this country,” said Rep. John D. Dingell (D-Mich.).


The measure was inserted into the $393-billion defense authorization bill, which approves funds for a variety of military programs, during a conference committee meeting, in which a small group of Senate and House members hammered out the differences between their two versions of the bill. The House version contained an exemption; the Senate’s did not.

The provision passed Wednesday would give the Defense Department an interim exemption from the Migratory Bird Treaty Act and would direct the Interior secretary within a year to come up with regulations permanently exempting military readiness activities from the law. The provision also would require the military to take appropriate actions to avoid unnecessarily killing or harming migratory birds, and to monitor the effect of the exemption on birds.

Members of Congress who supported the military’s requests for exemptions were angered that Congress had given the military so little of what it had asked for, especially at a time when it is poised to put American forces in harm’s way.

“The secretary of Defense submitted eight ideas; we enacted half of one,” said Rep. James V. Hansen (R-Utah), chairman of the House Resources Committee.

Hansen said that because the migratory bird provision would shift responsibility to the Interior secretary, rather than writing the exemption into law, delays and lawsuits would be likely to keep the military from getting what it wants.

“That is going to open up a can of worms and is clearly not going to be sufficient even over the short term,” Hansen added.


The Pentagon and its supporters in Congress argued that environmental laws have been inhibiting training at bases across the country and on the waters offshore.

The Migratory Bird Treaty Act had caused the Pentagon a particular headache since March, when a U.S. district court in Washington held that the military must comply with the act.

The Center for Biological Diversity, an Arizona-based environmental organization, had sued the Defense Department because the Navy conducts bombing exercises on Farallon de Medinilla, a 200-acre island in the middle of the Pacific that is part of the Northern Mariana Islands. Many birds are killed during those exercises, including some protected by the act, such as the Micronesian megapode, which is on the endangered species list; great frigatebirds; and three types of boobys -- masked, red-footed and brown.

The judge ordered the Defense Department to stop the bombing until it came into compliance with the Migratory Bird Treaty Act. During the case, a government lawyer argued that bird lovers benefit when the military kills birds because “bird watchers get more enjoyment spotting a rare bird than they do spotting a common one.”

Judge Emmet G. Sullivan reprimanded the government for that argument. “There is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources,” he said.

Peter Galvin, the California and Pacific director for the Center for Biological Diversity, said his organization would try to fight the exemption through the courts and in Congress. He blamed the Bush administration for creating a climate that encouraged such actions.

“The current administration’s attitude toward environmental law is summed up by their submission in the case that environmentalists and birders should enjoy bombing because it makes birds rarer,” Galvin said.