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Opponents Assail Court Nominee
They Say Legal Team Of Haynes Supported The Bombing Of Birds

The Richmond Times-Dispatch
January 4, 2004
Peter Hardin

WASHINGTON - The Pentagon's top lawyer, nominated by President Bush to the 4th U.S. Circuit Court of Appeals, is getting heat from critics who contend his legal team argued that bombing birds is good for bird-watching.

William J. Haynes II of Northern Virginia, the Pentagon's general counsel, was nominated Sept. 29. At his confirmation hearing last year, debate focused on the Bush administration's treatment of detainees and prosecution of enemy combatants since the Sept. 11 attacks.

Haynes, a 45-year-old native of Texas, drew strong support from Republican senators who attended and sharp questioning from some liberal Democrats. The Senate Judiciary Committee held a hearing on his nomination Nov. 19 but did not vote on it before adjourning last month. With additional time to dig into his record, environmentalists and Bush opponents recently spotlighted a case from 2002 in an effort to portray Haynes' environmental record as wanting.

A federal judge appointed by Bill Clinton enjoined the U.S. Navy from conducting joint live-fire military training exercises on a small uninhabited island in the Western Pacific, Farallon de Medinilla (FDM), in the Commonwealth of the Northern Mariana Islands.

Haynes has listed the case as the second-most significant one he has litigated. While Haynes did not argue the case in court, he said in papers submitted to the Judiciary Committee that he participated primarily by "developing and approving litigation strategy" and ensuring it matched administration goals, while acting through a deputy.

Judge Emmet G. Sullivan halted military bombing on FDM in response to a lawsuit by conservationists contending that the island was an important nesting spot for migratory birds and that the exercises violated the Migratory Bird Treaty Act.

In a 43-page opinion, the judge, seated on the U.S. District Court for the District of Columbia, agreed. He also questioned the federal government's adopting a supportive argument by the Washington Legal Foundation, that bird-watchers benefited by the military's bird-killing. The foundation is a conservative Washington-based group.

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.

Bush critics used Sullivan's opinion to criticize Haynes on It is a new Web site by, an online liberal political-advocacy group, and Environmental Media Services, a Washington-based group calling itself a communications clearinghouse.

"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," said Paul Achitoff, a Hawaii lawyer with Earthjustice who represented the conservationists. Oakland, Calif.-based Earthjustice formerly was the Sierra Club Legal Defense Fund.

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

"In the wake of such a strong court rebuke," said Douglas T. Kendall, executive director of a Washington-based group called Community Rights Counsel, "one would expect the administration to chastise the attorneys making this frivolous argument and begin complying with the law."

Their statements were published on the BushGreenwatch Web site in December.

The Bush administration's disagreement with Sullivan's ruling - and continuing support for lawyer Haynes - was reflected by its pursuing an appeal in court, turning to Congress for an exemption from the Migratory Bird Treaty Act and by Bush's nominating Haynes to the Richmond, Va.-based 4th Circuit. It is routine for federal judgeship nominees to decline news media interviews about their legal views or record before the Senate votes on confirming them.

A panel of appellate judges granted a government request to stay, or hold off, Sullivan's injunction. In January of last year, another appellate panel directed the case back to the lower court with directions to dismiss it, in light of fresh action by Congress.

The federal government had argued that the injunction would seriously disrupt military preparedness and harm national security. The Navy said its targets were placed away from primary bird habitat, and it was budgeting $100,000 a year to make bird habitats on neighboring islands better.

Congress acted in response to the military's concern. In the 2003 defense-authorization bill, Congress adopted a temporary exemption from the Migratory Bird Treaty Act for those in the military who kill birds unintentionally. The exemption was aimed at giving the Pentagon time while the Interior Department crafted a long-term answer.

It was based on that congressional action that a federal appeals panel ordered the lower court to dismiss the FDM case as moot.


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