Admin resists Bishop plan to scrap ‘silly’ military reviews

Rep. Rob Bishop uses a common refrain for justifying his effort to exempt the military from periodic environmental reviews of a handful of its ranges located on public lands.

“This is the bottom line: Nothing ever changes,” he told the House Armed Services Committee last year.

The Utah Republican, who sits on Armed Services and heads the House Natural Resources Committee, says the Pentagon wastes millions of dollars on assessments of the ranges every 25 years just to maintain the status quo. But critics say Bishop’s proposed solution is unnecessary and actually would increase the military’s burden.

For two years running, Bishop has sparked controversy by trying to insert language into the National Defense Authorization Act that could allow the services to keep using public lands set aside for the military but without any Interior Department oversight.

The provision singles out the largest wildlife refuge in the Lower 48 states, the Desert National Wildlife Refuge in Nevada. The Air Force jointly manages roughly 850,000 acres of the Fish and Wildlife Service’s 1.6 million acres of sagebrush sprawl.

Democrats and environmentalists say Bishop’s amendment would give the Air Force unfettered control over part of a refuge meant as protected habitat for bighorn sheep and endangered animals.

Bishop has consistently refuted those claims, saying he only wants to exempt the military from “silly” reviews of how the land is used. “The sad situation is nothing ever changes,” he told the House Armed Services Committee again this year.

Bishop’s claims about the assessments, however, do not hold up.

The Air Force took primary control of more than 100,000 acres of DNWR during the most recent assessment in 1999. The land is now a bombing range.

With the next review due to Congress by 2021, the Air Force is already eyeing construction of a radar and communications network in another section of the refuge, a designated wilderness study area.

Environmentalists say those facts, coupled with a close reading of Bishop’s amendment language, belie his true intentions.

Stand-in for Afghanistan

Bighorn sheep roam on the Desert National Wildlife Refuge, their largest intact habitat in the United States. The Air Force uses half of the refuge to fly over for training purposes. Photo courtesy of the U.S. Air Force.

President Franklin Roosevelt established DNWR, located roughly 30 miles north of Las Vegas, in 1936. Four years later, the military set up what is now Nellis Air Force Base, overlapping half the refuge.

Today, FWS has primary jurisdiction over the land, ensuring that 700,000 acres of wilderness study areas are undisturbed, managing the endangered desert tortoise and tracking bighorn sheep herds. The Air Force rarely uses the land itself. Fighter jets fly over it during training.

The area is considered a crown jewel by both FWS and the Air Force, contributing uniquely to the agencies’ seemingly contradictory missions.

Nellis is one of the few installations where the Air Force can drop live ammunition. It is also the only location in the United States where multiforce training can occur.

Military activities include the annual Exercise Red Flag, in which air squadrons from the Air Force, Navy and Marines practice with allied forces. The mountainous, desert landscape at DNWR is considered a perfect stand-in for Afghanistan.

“This is where we go to really stress our pilots; it is the closest they will come to actually seeing combat,” said James Sample, Air Force director of range planning.

DNWR is the 12th-largest wildlife refuge in the country and the biggest in the Lower 48, eclipsed only by public lands in Alaska. Located between Great Basin National Park and the Mojave Desert, the refuge protects an intersection of ecosystems including six mountain ranges and the largest intact habitat for bighorn sheep.

The public isn’t allowed on the 850,000 acres withdrawn for the Air Force, to accommodate military activities. The one exception is a 14-day stretch each year for the bighorn sheep hunt.

Most of that withdrawn section has been designated a wilderness study area, with one FWS employee calling the land “as natural as you can get.”

The Air Force and FWS have been successfully co-managing the withdrawn area for decades, each attuned to the other’s mission. The military estimates that its work affects less than 5 percent of the overlapping land. The rest is left untouched.

Air Force and FWS officials say they have never experienced problems working together on that land, and note that the current FWS refuge manager is married to an Army veteran.

Though refuge management changed significantly during the 1990s, both agencies say it was noncontroversial, the result of their cooperative relationship.

At the time, environmental groups were threatening to sue FWS for allowing damaging activities on public lands, including permitting the Air Force to bomb parts of DNWR.

FWS “came to us and said, ‘We don’t think that dropping 2,000-pound bombs is compatible with a refuge, but we don’t think it makes sense for the nation if you stop what you have been doing with training here,'” recalled Fred Pease, chief of the Air Force’s Ranges and Airspace Division from 1993 to 2000.

Parties codified a resolution as part of the 1999 land withdrawal review process. FWS gave the Air Force primary jurisdiction over 112,000 acres of the already-withdrawn land to be used in target practice.

Because the Air Force would be in charge of the area, it would be governed no longer by the National Wildlife Refuge System Administration Act but by the less-stringent Sikes Act, a change that freed FWS from accusations that it was skirting the law. The Air Force paid FWS $15 million to acquire replacement lands.

“It was a big change, but everyone agreed to it,” Pease said. “The environmentalists are practical people. They knew it didn’t make sense to have FWS managing lands where explosives were being dropped.”

Air Force plans

The Air Force is now preparing for the next DNWR withdrawal review process, which by law requires military leaders to prepare a legislative environmental impact statement.

The military will submit it to the Interior Department for comments before sending it on to Congress, which can ultimately make any changes it wants, regardless of what the review finds.

This time, the Air Force wants to install radar and other communications systems in parts of the withdrawn land where FWS has primary jurisdiction. The idea is for Nellis pilots to practice avoiding “enemy” detection on the way to bombing a target.

Putting the devices within the 100,000-acre bombing range where the Air Force has unfettered access would make training unrealistic, Sample said.

“The enemy doesn’t put their radar where the target is,” he said. “They want to detect you before you get there.”

An A-10 Thunderbolt II bombs the Nevada Test and Training Range as part of a close air support training exercise there. The training range is located on part of the Desert National Wildlife Refuge where the U.S. Air Force has primary jurisdiction. Photo by Tech. Sgt. Michael Holzworth, courtesy of U.S. Air Force.

The radar and communications devices would each require 100 square feet of land, but installing them anywhere on the jointly managed area is complicated. The majority of that land is a wilderness study area where mechanized transport, among other things, is prohibited.

The Air Force is consulting with FWS to determine how installing the devices could be compatible with the refuge and proposed wilderness management.

One option, Sample said, would be to request primary jurisdiction over small islands of land for installing the equipment, locating it near pre-existing wilderness footpaths to facilitate maintenance.

“We haven’t asked for anything yet, and we are doing it all in consultation with FWS,” Sample said. “We are working on this together.”

Primary jurisdiction may not be necessary, said Pease, who noted that other wilderness study areas contain radar and similar devices used by the Air Force.

Even though those instruments pre-date the wilderness study area designations, Pease believes examples in Utah and Arizona demonstrate that the two can coexist.

“It would be illogical to say [the DNWR radar equipment] is incompatible when it is compatible everywhere else,” he said.

FWS would not comment on the specifics of the proposal.

“We appreciate working with the Air Force and look forward to examining options for this and any other issues as part of the legislative environmental impact statement process,” said an agency statement.

Competing interpretations

The upcoming DNWR assessment is the impetus behind Bishop’s effort to exempt the military from land-use reviews on a handful of refuges and public lands. His goal is “to give them some flexibility.”

But exempting the Air Force from a review at DNWR could actually hamstring its radar installation efforts. Without the current review process, the Air Force would be left operating under the land withdrawal agreement from 1999, which does not include radar accommodations.

With FWS continuing as the primary land manager, the National Wildlife Refuge System Administration Act and the Wilderness Act would still govern and restrict military actions on DNWR.

By contrast, giving the Air Force primary jurisdiction over all of the currently co-managed DNWR lands would allow the service unrestricted use of the area.

Bishop and his aides strongly deny it, but environmentalists say that’s exactly what his provision would do. Critics say it goes well beyond simply scrapping the periodic reviews.

Bishop’s language centers on Section 3014 of the Military Lands Withdrawal Act, which puts FWS in charge of the “management of lands” at DNWR, including the protection of wildlife and fighting wildfires.

Bishop’s provision would amend Section 3014, making it “only apply to the authorities and responsibilities of the Secretary of the Air Force.”

It would strike additional language in the Military Lands Withdrawal Act requiring the Air Force to notify the Interior Department of any changes to how it uses the withdrawn lands.

The language would also require Interior to transfer “administrative jurisdiction” of any other withdrawn lands to the military “upon the request” of the armed services.

Hunting, fishing and trapping would continue to be subject to the Refuge Act. But, with primary jurisdiction over the land, the Air Force could choose whether to follow all other refuge management requirements.

The FWS manual explains just how flexible refuge use restrictions can be once another agency becomes the principal manager.

“If we do not have primary jurisdiction over the use area where the use would occur, we have no authority to consider the use,” it says.

Defenders of Wildlife Legislative Affairs Director Mark Salvo says the Bishop legislation “would completely and permanently change the nature of the refuge.”

But current and former aides who have worked on the language say it does not give primary jurisdiction of the refuge to the Air Force.

They note that Bishop’s amendment does not touch Section 3011 of the Military Lands Withdrawal Act, which says, “The Secretary of the Interior shall exercise administrative jurisdiction over the Desert National Wildlife Refuge … through the Fish and Wildlife Service … in accordance with the National Wildlife Refuge System Administration Act of 1966.”

But Section 3011 also contains a loophole, allowing two subsections of Section 3014 to “be construed” to affect DNWR management. Those are the same subsections Bishop would amend.

Asked about that potential discrepancy, Bishop spokesman Lee Lonsberry would not comment on specifics. The Senate version of the defense authorization does not contain any DNWR language, and Lonsberry said the two chambers will have to pick one in conference committee.

“We see there are differing interpretations, and are confident that those difference will become uniform in conference,” he said.

For his part, Bishop continues to deny that his language gives jurisdiction over parts of DNWR to the Air Force even as he says it would be a better land manager.

“No,” he said during an interview last week. “But if you want it to be run well, you would give it to the Air Force. They’d do a hell of a lot better than Fish and Wildlife will.”

‘Tempest in a teapot’

Asked to comment on Bishop’s language, Sample and the Air Force referred to the White House Office of Management and Budget’s statement of administration policy on the House defense authorization act.

It says, “The Administration cannot support provisions that would alter the current use and management structure of the Desert National Wildlife Refuge and strongly opposes provisions that could allow unrestricted Air Force activities in areas of the Refuge.”

Nellis Air Force Base also declined to comment.

But retired Col. David Belote, who served as commander of the base in 2009 and 2010, described the language as a “tempest in a teapot.” He said, “People are trying to score points solving political problems that aren’t there.”

Belote argued that giving the Air Force primary jurisdiction over the shared portion of DNWR could in fact be a detriment to training because it would give non-defense-related work to airmen, distracting from their mission and training.

“Don’t put that extra stuff on those people’s plates,” he said. “They’ve got day jobs. Let them do their day jobs, and let someone like FWS, who are experts at this, continue to do that. It’s a better use of the nation’s resources.”

Desiree Sorenson-Groves, vice president of government affairs for the National Wildlife Refuge Association, agreed and suggested Bishop was using the issue as a platform to attack federal land ownership, something he frequently criticizes.

“I think that Bishop has made it fairly clear that he feels the federal government has too much ownership of land; that is no secret,” she said. “This could be the first chink in that: You give the land to the Defense Department, and then, if they change how the base is used in the future, they could end up giving away the land entirely.”

Though it may sound far-fetched, Sorenson-Groves said she could think of no other viable reason why Bishop would want to give the land to the Air Force, or why he would be so worried about FWS reviewing the withdrawal.

“If FWS was throwing up roadblocks and saying ‘Hell, no,’ it would be different, but they are not and they wouldn’t,” she said. “FWS has worked with DOD for decades at this refuge, and it has always been OK. They are not in the business of trying to impede national security. It is not in their DNA.”

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