The Wilderness Society released an analysis of the surprise amendment by a member of the Utah delegation to the National Defense Authorization Act. Their analysis follows:
"COMMENTS AND RECOMMENDATIONS ON SECTION 2845 OF THE NATIONAL DEFENSE AUTHORIZATION ACT
July 8, 2020
On July 1, the House Armed Services Committee approved H.R. 6395, the National Defense Authorization Act. Section 2845 of the legislation would have disastrous implications for the Desert National Wildlife Refuge, effectively handing control of over 800,000 acres of the Desert National Wildlife Refuge to the United States Air Force for military training.
Located in southern Nevada, the 1.6-million-acre Desert National Wildlife Refuge contains irreplaceable cultural resources and world-class habitat. In 1999, Congress authorized the Air Force to conduct military training on the western half of the refuge, while handing the Air Force primary jurisdiction over 110,000 acres of refuge land (section 3011 of Public Law 106-65).
That withdrawal expires in 2021, and the Air Force is now seeking primary jurisdiction over 1.1 million acres of the Desert Refuge, a proposal that was met with stiff resistance from the State of Nevada, its congressional delegation, Tribes, hunters, conservationists, veterans, and people across the country. In late June, the Senate Armed Services Committee approved an extension of the current withdrawal with no change in jurisdiction. The legislation is now pending on the Senate floor.
The House version of the legislation, however, includes a surprise amendment authored by Representative Bishop (R-UT) that was offered in-committee without any opportunity for public review and that would dramatically shift jurisdiction across the refuge. A summary of that provision, and recommendations, are below.
SECTION 2845 SHIFTS JURISDICTION AND MANAGEMENT CONTROL OVER THE DESERT NATIONAL WILDLIFE REFUGE FROM THE UNITED STATES FISH AND WILDLIFE SERVICE TO THE SECRETARY OF THE AIR FORCE Existing law provides the Air Force with primary jurisdiction over approximately 110,000 acres of public land within the Desert National Wildlife Refuge. The Secretary of the Interior retains secondary jurisdiction over these lands (section 3011(b)(3) of P.L. 106-65). The Secretary of the Interior is required to, “in coordination with the Secretary of the Air Force,” manage the remaining shared use lands within the Desert Refuge “for the purposes for which the refuge was established” and to support military training needs consistent with the existing memorandum of understanding between the Secretaries of the Interior and Air Force (section 3011(b)(5)(E)(i)).
Section 2845(b) turns this arrangement on its head by stating that the Secretaries of the Interior and Air Force “shall co-manage” the shared use portion of the Desert National Wildlife Refuge for “both military and wildlife refuge purposes”, and then gives the military ultimate control of decisionmaking. Section 2845(c)(1) requires a new memorandum of understanding between the
Secretary of the Interior and Air Force “for the purpose of facilitating the co-management” of the shared use portion of the refuge.
Section 2845 also negates existing law regarding the Department of the Interior’s management of the Desert Refuge for refuge purposes. The new memorandum of understanding required by section 2845 “shall supersede” the existing memorandum of understanding required by P.L. 106- 65 (section 2845(b)(c)(2)). Under section 2845(c)(2), three of the four clauses from P.L. 106-65 regarding the MOU are carried forward. These deal with amendments, revisions, and extensions (section 3011(b)(5)(E)(ii)-(iv) of P.L. 106-65). The one clause not carried forward—section 3011(b)(5)(e)(i)—requires the Secretary of the Interior to manage the Desert Refuge for refuge purposes.
Under existing law, the Department of the Interior manages the shared use portions of the Desert Refuge (section 3011(b)(5)(E)(i) of P.L. 106-65) in coordination with the Air Force. Under section 2845 of the House NDAA, the Department of the Interior and Department of the Air Force would “co-manage” the shared use portions of the Desert Refuge (section 2845(b)), and puts the Air Force in ultimate control of decisionmaking.
THE PUBLIC USE, CULTURAL AND NATURAL RESOURCE PROTECTIONS, AND AGENCY ACCESS PROVISIONS OF SECTION 2845 ARE TOOTHLESS Section 2845 requires the new memorandum of understanding to include specific components on public access, protection of natural and cultural resources, Tribal access, and United States Fish and Wildlife Service access (section 2845(d)).
If the Department of the Interior still managed the shared use portions of the Desert Refuge, these provisions could have some positive impact. However, as described above, under section 2845(b), the Secretary of the Interior no longer has primary jurisdiction over the Desert Refuge. Instead, that jurisdiction is shared with the Secretary of the Air Force who, as described below, has final say on management decisions affecting the Desert Refuge.
The memorandum of understanding, and all provisions relating to access, use, resource protection, and management is subject to the dispute resolution process in section 2845(e) (section 2845(d)(1)). That section provides that the “Secretary of the Air Force shall be responsible for the resolution of any dispute concerning the new memorandum of understanding or any amendment thereto” (section 2845(e)(1)).
While the legislation provides direction to the Secretary of the Air Force to consult with the Secretary of the Interior and seek to maximize public and agency access (section 2845(e)(2)-(3)), these provisions do not change the underlying law: the Secretary of the Air Force would be the final decision-maker on the western half of the Desert Refuge.
SECTION 2845 PUTS VITAL DESERT NATIONAL WILDLIFE REFUGE RESOURCES AT RISK Section 2845(g)(1) authorizes the Air Force to conduct a suite of activities within the Desert Refuge including establishing new bombing zones and communications sites and enabling platoons to drive cross-country across the refuge. The activities prohibited by section 2845(g)(2) are already largely prohibited by current law.
Enabling new drop zones and communications sites has the potential to significantly impact the cultural and natural resources of the Desert Refuge. And enabling the Air Force to criss-cross fragile Desert Refuge soils and habitat will undoubtedly adversely impact the wildlife, cultural resources, and other fragile resources of the refuge. Under the provisions described above, the Secretary of the Interior would be powerless to stop these activities.
RECOMMENDATIONS Section 2845 should be stricken in its entirety. New language is needed to permanently protect agency-proposed refuge wilderness, provide adequate management access for the United States Fish and Wildlife Service, and address protection of cultural resources and Tribal access. "