- The Washington Times - Thursday, May 23, 2002

No matter what is going on in the world, there will always be Americans who oppose what the military does and how it does it. Congress rearranges our priorities so frequently it often overlooks sometimes intentionally the effects those rearrangements have. In the environmental laws, Congress has given the anti-military groups a new home, and a battery of weapons that can defeat a carrier battle group. When those weapons are used by anti-military environmental extremists the results can be devastating, especially when the judge is someone appointed by a president who once said he "loathed" the military.

Military training is about performing the mission and getting home alive. The old saw that the more you sweat in peace, the less you bleed in war, goes double for the fly-guys because their skills are so perishable. Unless you practice over and over, you won't be able to do by instinct what you have only tenths of a second to do in combat. On some windy day, with a bit of turbulence, you need to do it by reflex or you, your wingman or friendlies on the ground may not live out the day.

To be up to par, a Navy or Marine pilot needs to fly 80 training sorties, on half of which he drops bombs and fires rockets or guns. For the Navy and Marines, many training flights include working with troops on the ground, in places where naval guns and ship-fired rockets may be using some of the same airspace at nearly the same time. Experience has taught that without this kind of training at least once or twice a year, aircrews are not combat-ready.

The places where training like this can be done are few and getting fewer, because the environmentalists are using the courts to shut them down. On May 1, a federal judge closed the Navy-Marine bombing range on a tiny Pacific island called Farallon de Medinilla.

Farallon de Medinilla aka FDM is a flyspeck of coral, about 200 acres in size, that sits in the western Pacific roughly 150 miles north of Guam. This "nothing atoll" has been used for the past 25 years as the primary training range for Navy and Marine pilots in the Pacific. Because of its remoteness, FDM is used for unlimited mixed training. Unrestricted airspace above it means that pilots can fly at any speed, any altitude and in any formation necessary to practice the real thing. Marine and SEAL units on the ground can practice their half of the close air-support business, and the pilots can deliver PGMs the precision guided munitions on which we rely so heavily through long days and nights of training.

But FDM, aside from being an ideal training site, is also the home of several species of migratory birds. The red-footed booby, the common noddy tern and other unendangered species live on FDM as well as on many other islands nearby. Though part of FDM is closed to protect the birds, it's possible that some of them may be killed accidentally. Under the Migratory Bird Treaty Act, if the Navy intended to kill some of these birds, it would have to get the Fish and Wildlife Service to give it a permit. But no one, and no court other than the District of Columbia's federal court had ever said that the permit was required if birds might be killed accidentally. Enter a group called the Center for Biological Diversity (CBD). In a case in D.C. federal court, the CBD asked for and got an injunction preventing the use of FDM for training because the Navy didn't have the proper permit. Clinton-appointed Judge Emmett Sullivan utterly failed to take into account the effect on the Navy and Marines and granted the injunction.

Any federal judge considering an injunction is required to "balance the harms" i.e., to determine if the public interest will be served, and whether one of the parties will be harmed irreparably, if the injunction isn't issued. The CBD's only interest, according to its attorney, Paul Atchison, is to force the Navy to follow the law. On the other side of the scales were statements by Seventh Fleet Cmdr. Vice Adm. James Metzger and First Marine Aircraft Wing Cmdr. Lt. General James Cartwright. In sworn statements, Adm. Metzger said that FDM is "the only target range in the Pacific Theater where strike aircraft are afforded the use of air-to-ground live ordnance with tactically realistic and challenging targets in airspace which allows the use of high-altitude profiles." He said specifically that the Navy relies on FDM to meet short-notice training requirements in the war against terrorism.

If that were not enough to tip the scales in the Navy's favor, Gen. Cartwright's sworn statements said that FDM was necessary in support of his command's role in homeland defense, Afghanistan and related operations. But Judge Sullivan closed the range anyway. In a sworn statement to the Court of Appeals, trying to get the injunction lifted, Gen. Cartwright said it all. Describing the injunction's effect on just one squadron, he said, "The squadron's lost training opportunity at FDM has degraded its readiness and thereby dramatically increased aircrew risk and the likelihood of mission failure should it be ordered into combat tomorrow." Fortunately, the Court of Appeals set aside Judge Sullivan's injunction temporarily on Tuesday. But the case is still going on, and others like it will follow.

The only answer is for Congress to amend the environmental laws quickly to make sense out of this nonsense. Military training particularly in time of war has to be able to be done regardless of whether some birds will be killed. Military training, such as the Navy's use of FDM, must be exempted from the environmental laws. Do we even have to ask if pilots' lives and mission success are more important than the lives of a few red-footed boobies?

Jed Babbin was a deputy undersecretary of defense in the first Bush administration.

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