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The Endangered Species Act Is Still Strong on Department of Defense Lands

September 2004

Citation: ELR 10809

Author: Jonathan W. Hitesman

I. Military Training Versus Endangered Species Protection

The U.S. Congress recently amended the Endangered Species Act (ESA) to exempt the U.S. Department of Defense (DOD) installations from critical habitat designation when qualified resource management plans are established. Despite an apparently sweeping exemption from a key part of the ESA, endangered and threatened species are still effectively protected on DOD installations without adversely affecting military training and national security. In fact, the recent amendments surprisingly require heightened scrutiny of DOD integrated natural resource management plans (INRMPs) while essentially codifying existing U.S. Fish and Wildlife Service (FWS) regulations. Although amending the ESA was unnecessary and unjustified, endangered and threatened species occupying DOD installations will continue to be protected because INRMPs provide protection for listed species at least as effective as the designation of critical habitat.

Recent military successes in the Global War on Terror have led some commentators to conclude that U.S. military training is "good enough." Regardless of how successful the U.S. Armed Forces have been in Iraq and Afghanistan, if better training can prevent the death of even one U.S. soldier, sailor, airman, or Marine, then the country as a whole has the obligation to ensure that better training is available. Success on the battlefield is no reason to restrict training at home, even in favor of the nation's treasured resources including endangered species. This is not to suggest that the balance between military training and endangered species protection should be skewed in favor of the DOD. Rather, balancing becomes more difficult when the lives of American servicemembers are at stake. Military readiness and endangered species protection are not mutually exclusive and must continue to be balanced.

The author received his LL.M. (2004), Georgetown University Law Center; J.D. (1999), William S. Richardson School of Law, University of Hawaii; B.S. (1990), Norwich University. Major Jonathan W. Hitesman is currently an active duty Marine Corps Judge Advocate. He would like to thank Prof. William Butler for his encouragement and guidance in writing this Article. The positions and opinions expressed in this Article are those of the author and do not represent the views of the U.S. Marine Corps, the U.S. Department of the Navy, the U.S. Department of Defense, or any other government agency.

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