FDM, about 45 nautical miles from Saipan in the Commonwealth of the Northern Mariana Islands, is about 0.3 miles wide and 1.7 miles long, or about 206 acres. It is home to more than a dozen species of migratory birds protected by the MBTA, including the great frigatebird, masked booby, brown booby, red-footed booby, sooty tern, brown noddy, black noddy, fairy tern, cattle egret, red-tailed tropicbird, white-tailed tropicbird, Pacific golden plover, whimbrel, bristle-thighed curlew, and ruddy turnstone. Most of these species also nest at FDM. FDM is one of only two small breeding colonies of the great frigatebird in the Mariana island chain, and is also the largest known nesting site for masked boobies in the Mariana and Caroline islands.

The military has been using FDM for live-fire training, during which bombers drop 500-, 750-, and 2000-pound bombs, precision-guided munitions, and mines; naval ships fire deck-mounted guns, using high explosive, point-detonating rounds; and aircraft fire machine guns, cannons, and missiles at FDM. The resulting destruction of nesting migratory birds has been well established.

The Migratory Bird Treaty Act (MBTA) is one of the nation's oldest conservation laws. Enacted in 1918, it implements international treaties between the U.S. and Japan, Russia, Mexico, and Canada designed to "save from indiscriminate slaughter and insure the preservation of such migratory birds as are either useful to man or harmless." The MBTA makes it "unlawful at any time, by any means or in any manner," to, among other prohibited actions, "pursue, hunt, take, capture, [or] kill" any migratory bird included in the terms of the treaties without a permit issued by the Fish and Wildlife Service. The Service turned down the Navy's 1996 application for a permit to bomb FDM. The Navy did not appeal or reapply, but continued to bomb the island.

Notwithstanding the MBTA's protections, over 25% of all U.S. bird species are federally listed under the Endangered Species Act or as Species of Management Concern. During the past 30 years, about one-fifth of the bird species native to the U.S. have declined at rates equal to or exceeding 2.5 percent per year. A trend of this magnitude represents a cumulative decline of more than 50 percent over a span of 30 years.

Anticipating the court's ruling, the Department of Defense recently submitted to Congress a sweeping proposal to exempt military activities from the MBTA, along with many other environmental laws. DoD has over 25 million acres of land under its jurisdiction. Since these habitats encompass most of the migratory bird species in the U.S. during some period of the year, the proposed legislation, if enacted, would leave many of the hundreds of migratory bird species vulnerable to wholesale slaughter.

Although the Navy argued to the court that uninterrupted use at FDM is vital, the court noted the testimony of military officers that other facilities exist.

Earthjustice attorney Paul Achitoff commented, "The Navy is not above the law. This case stands as an important reaffirmation of the separation of powers that is a cornerstone of our democracy."

The full text of the memorandum and order on remedy in Center for Biological Diversity v. Pirie, DDC Civ. 00-3044 EGS issued by the US District Court is available at:

http://www.dcd.uscourts.gov/00-3044a.pdf.