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SAIPAN, CNMI (Saipan Tribune, Jan. 8) - Earlier controversy surrounding the Northern Marianas islands of Farallon de Mendinilla, particularly the U.S. military's bombing exercises on the island that led to a lawsuit by an environmental group in 2002, has resurfaced once more, this time in the nomination of a prominent lawyer to the U.S. Court of Appeals.

William J. Haynes II's nomination by President Bush to the 4th U.S. Circuit Court of Appeals is being blocked by groups who question his environmental record by spotlighting his role in the 2002 case filed by the Center for Biological Diversity versus the U.S. Navy and the Department of Defense over the bombing exercises on FDM.

What environmental groups find particularly galling are reports that Haynes' legal team had argued that bombing birds is good for bird-watchers as they would derive more satisfaction from watching rare birds than common birds.

Haynes, who is the Pentagon's top lawyer, was nominated Sept. 29. His nomination has remained at the Senate Judiciary Committee level and has not been acted on before Congress adjourned last month.

The Center for Biological Diversity had argued that the Farallon de Mendinilla, a small uninhabited island, is an important nesting spot for migratory birds and that the military's live-fire exercises on the island is harming them. It said the bombings violate the Migratory Bird Treaty Act and had asked the court to stop the exercises.

Although Haynes did not argue the case in court, he had told the Judiciary Committee that he participated by "developing and approving litigation strategy" for the defense while acting through a deputy.

Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia had granted the Center's request for a temporary stay on the live fire exercises on FDM. He had also questioned the federal government's adopting the argument being pushed by the Washington Legal Foundation that bird-watchers benefited by the military's bird-killing.

When bird-watchers see the birds that remain, they "'get more enjoyment spotting a rare bird than they do spotting a common one,'" Sullivan quoted from legal papers submitted by the government.

"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," Sullivan wrote.

"The court hopes that the federal government will refrain from making or adopting such frivolous arguments in the future," he added.

Haynes' critics are now using Sullivan's opinion to criticize him and oppose his nomination.

A Richmond Times-Dispatch story quoted Paul Achitoff, a Hawaii lawyer with Earth justice as saying: "The Pentagon didn't dispute they were killing birds, but argued that because they were the military they should be allowed to keeping doing it."

"I would think long and hard about someone up for the federal bench who argues the military-or anyone-is above the law," Achitoff reportedly added.

To get around the issue, the Bush administration pursued an appeal in court and turned to the U.S. Congress for an exemption from the Migratory Bird Treaty Act. The federal government had argued that Sullivan's injunction would disrupt military preparedness and harm national security. The Navy said its targets were placed away from primary bird habitat.

The issue became moot when Congress enacted the 2003 defense-authorization bill, where it adopted a temporary exemption from the Migratory Bird Treaty Act for those in the military who kill birds unintentionally.

January 8, 2004

Saipan Tribune: www.saipantribune.com


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