Center for Biological Diversity

Protecting endangered species and wild places through
science, policy, education, and environmental law.

For Immediate Release: March 20, 2002
For More Information: Peter Galvin, Center for Biological Diversity (510) 841-0812 x2 or Paul Achitoff (808) 599-2436 at Earthjustice.

Federal Judge Finds U.S. Military in Violation of Migratory Bird Treat Act over Navy Bombing of Pacific Island

Washington, D.C. ­ Judge Emmit G. Sullivan of the U.S. District Court for the District of Columbia granted summary judgment last week in a lawsuit establishing that the Navy and Department of Defense are in violation of the Migratory Bird Treaty Act (MBTA) by bombing and shelling a small island in the Pacific Ocean (Farallon de Medinilla, in the Northern Marianas), and killing protected birds.

The Migratory Bird Treaty Act, was passed in 1918 and implements several international treaties regarding protected birdlife that the U.S. is a party to. The MBTA prohibits killing or otherwise harming migratory birds in the absence of a permit issued in accordance with regulations. The Navy admitted that protected birds are killed by the training exercises, and applied to the US Fish and Wildlife Service (FWS) for a permit to continue, but the FWS declined to issue a permit in 1996. Nevertheless, the Defense Department continued to bomb the island illegally, claiming that the MBTA doesn't apply to federal agencies.

On March 13, 2002, the court issued the ruling and ordered the parties to submit additional briefs concerning the nature and scope of an injunction limiting or halting training activities that kill protected birds. A hearing in the remedy phase of the case is scheduled for April 30, 2002.

The Migratory Bird Treaty Act (MBTA), one of the oldest conservation statutes in existence, has since 1918 flatly prohibited harm to migratory birds absent a permit from the U.S. Fish and Wildlife Service.
FDM is an island used by at least two-dozen species of birds, including at least
a dozen species of migratory birds that nest at FDM. FDM is home to breeding colonies of great frigatebird and the masked boobies as well as endangered Micronesian Megapodes.

Peter Galvin, Conservation Biologist for the Center for Biological Diversity stated “The ruling upholds the U.S. commitment to the protection of migratory birds and to meeting our treaty obligations.”
Paul Achitoff, Attorney for Earthjustice stated “We are pleased that the court has held that all federal agencies, including the military, need to follow federal environmental laws.”

The Center for Biological Diversity protects endangered species and wild places through science, policy, education, and environmental law. The Center is headquarted in Tucson, Arizona and has 7,500 members throughout the U.S.

Earthjustice Legal Defense Fund is the nonprofit law firm for the environment, representing public interest clients without charge when reason and persuasion fail to protect the environment.
The suit was filed on December 21, 2000 and was assigned case #CV-3044 EGS).


Located 45 nautical miles north of Saipan in the Commonwealth of the Northern Mariana Islands, the 200-acre FDM is a long and narrow island with dramatic ocean cliffs. Although uninhabited by humans, FDM hosts breeding colonies of great frigatebirds; masked, red-footed, and brown boobys; red- and white-tailed tropicbirds; white and sooty terns; brown and black noddys; and other species of migratory birds. Nesting occurs on FDM all year around. The nonmigratory Micronesian megapode and the Mariana fruit bat, both protected under the Endangered Species Act, also inhabit the island.

The Navy, together with other branches of the U.S. military, use FDM throughout the year for target practice. Exercises include air-to-surface gunnery with missiles and rockets; bombing runs with 500-, 750-, and 2000-lb bombs, precision-guided munitions, and mines; target practice with deck-mounted guns; and firing grenades, machine guns, and shoulder-launched missiles at the island from inflatable vessels. Not surprisingly, birds are killed a result.

The military activities are widely known to kill birds; accurate tallies are difficult in part because the island is covered with unexploded ordinance.

In his decision Judge Sullivan chastised the government for adopting the Washington Legal Foundation’s assertion that environmentalists should get enjoyment out of the Navy bombing of FDM because it helps make bird species more rare, thus granting birders additional enjoyment when spotting a live specimen. “Finally, the Court must note that defendants have adopted, along with the rest of Washington Legal Foundation’s brief, the argument that plaintiffs have suffered insufficient injury because the more birds that the defendants kill, the more enjoyment Mr. Frew will get from seeing the ones that remain: “bird watchers get more enjoyment spotting a rare bird than they do spotting a common one.” Suffice it to say, there is absolutely no support in the law for the view that environmentalists should get enjoyment out of the destruction of natural resources because that destruction makes the remaining resources more scarce and therefore valuable. The Court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future.”

In August 1997, The Honolulu-based Western Pacific Regional Fishery Management Council
called for a halt to the bombing on FDM and CNMI Government officials have called for an extensive assessment of the damage sustained by the island and its surrounding reef due to the continued military bombing exercises.
The Commonwealth of the Northern Mariana Islands (CNMI) is a chain of 17 islands north of Guam. The CNMI was formerly a part of the Trust Territory of the Pacific Islands; however, its people opted in the 1970s to form a closer tie with the United States and become a commonwealth. The CNMI is permanently a part of the United States, and its people are U.S. citizens.


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