[House Report 109-320]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-320
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ACCESS TO NAVASSA AND DESECHEO NATIONAL WILDLIFE REFUGES
_______
December 6, 2005.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 1183]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 1183) to require the Secretary of the Interior to provide
public access to Navassa National Wildlife Refuge and Desecheo
National Wildlife Refuge, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
PURPOSE OF THE BILL
The purpose of H.R. 1183 is to require the Secretary of the
Interior to provide public access to Navassa National Wildlife
Refuge and Desecheo National Wildlife Refuge.
BACKGROUND AND NEED FOR LEGISLATION
The National Wildlife Refuge System is comprised of federal
lands that have been acquired or reserved for the conservation
of fish and wildlife. The System is administered by the U.S.
Fish and Wildlife Service of the Department of the Interior.
Totaling about 97 million acres, the system provides habitat
for hundreds of fish and wildlife species within 545 refuges.
It has been estimated that 39 million visitors travel to at
least one refuge each year to enjoy the experience.
Within the System, 88 units located throughout the United
States are closed to the public because of the presence of
endangered species, unexploded ordinance, the storage of
nuclear waste and access safety concerns. However, individuals
who wish to visit these refuges may apply for a Special Use
Permit (SUP) from the Fish and Wildlife Service. According to
the Service's Refuge Manual a specialized use is defined as,
``Any refuge service, facility, privilege, or produce of the
soil provided at refuge expense and not usually available to
the general public through authorizations in Title 50 [of the
Code of Federal Regulations] or other published regulations.
Such use requires specific authorization from the refuge
manager.''
The National Wildlife Refuge System has long provided
opportunities for public outdoor recreation. In recognition of
the demand for recreational opportunities, Congress enacted the
Refuge Recreation Act of 1962. This law clearly stated that the
System should be available for public recreation as incidental
or secondary uses provided that the activities are ``compatible
with, and will not prevent accomplishment of, the primary
purposes for which the . . . areas were acquired or
established.'' The Recreation Act also stated that public
recreation shall be permitted ``to the extent that it is
practicable and not inconsistent with previously authorized
Federal operations,'' and directed the Secretary of the
Interior ``to cooperate with public and private agencies,
organizations and individuals . . . and . . . accept and use .
. . donations of funds and real and personal property'' in
furtherance of public recreation. The Secretary was authorized
to issue permits and establish reasonable fees and charges for
public use of refuges to implement this policy. Encouragement
of public recreation on refuges was not without reasonable
limits. Discretion was given to the Secretary of the Interior
to curtail public recreation only after determinations that the
recreational use would not interfere with the primary purpose
of the refuge and that adequate resources were not available
for ``the development, operation and maintenance of . . .
recreation.''
Congress consolidated and clarified management authority
for the Refuge System in 1966 when it passed the National
Wildlife Refuge Administration Act (Public Law 89-669). Under
this law, the Secretary of the Interior was also authorized to
permit ``secondary'' uses or activities provided that these
activities were compatible with the purpose for which the
refuge was established. Secondary activities included
traditional recreational uses such as hunting and bird
watching, as well as other decidedly non-recreational uses
including farming, grazing, mineral extraction and oil
exploration.
The National Wildlife Refuge Improvement Act of 1997
reinforced the importance of recreation in the National
Wildlife Refuge System. As defined under the 1997 Act,
wildlife-dependent recreation includes hunting, fishing,
wildlife observation and photography, and environmental
education and interpretation. The law further stated that these
uses are to be given priority consideration over other uses for
comprehensive conservation planning and determinations of
compatibility. This law did not, however, expressly prohibit
other uses of refuges, recreational or otherwise. In fact, the
plain language of the statute authorized the Secretary to
``permit the use of any area within the System for any purpose,
including but not limited to hunting, fishing, public
recreation and accommodations, and access whenever he
determines that such uses are compatible with the major
purposes for which such areas were established.'' In addition,
the law unequivocally preserved pre-existing authority
requiring public access for recreation in stating that
``Nothing in this section shall be construed to amend, repeal,
or otherwise modify the provision of the [Recreation Act] which
authorizes the Secretary to administer the areas within the
System for public recreation.''
Desecheo and Navassa are small uninhibited islands in the
western Caribbean Sea. They are managed as refuges within the
Caribbean Island National Wildlife Refuge complex. Desecheo
lies approximately 14 miles west of Puerto Rico. It was used as
a target for aerial bombardment from 1940 to 1952 and as a
survival training area for the U.S. Air Force from 1950 to
1960. It was transferred to the Department of the Interior and
established as refuge in 1972. For nearly two decades, Desecheo
was open to the public despite the fact that the Department of
Defense had issued a preliminary risk assessment in 1991
confirming specific locations of unexploded ordnance on the
island. In 1998, the Fish and Wildlife Service closed Desecheo
to all public access and stipulated that the decision was made
because of unexploded ordnance and threats to pubic safety
because of trespassing illegal aliens and drug smugglers. There
are only a few wildlife resource values on the island,
including three endemic species of lizards, an endangered
cactus species and an occasional nesting hawksbill turtle.
Navassa is located about 35 miles west of Haiti in the
Jamaican Channel. Once the site of a guano mining operation and
maintained by the federal government for lighthouse purposes,
it was designated a refuge by Secretarial Order 3210 in
December 1999. A 1998 scientific expedition described the
island as a unique preserve of Caribbean biodiversity. The
Secretarial Order creating the refuge stated that the Service
would continue ``to administer this area under the National
Wildlife Refuge System Administration Act . . ., the general
regulations governing the . . . Refuge System . . . and in
accordance with all applicable laws, policies and rules.''
Despite this directive, the island has been closed to the
public since its establishment except for government employees
and certain scientists from private conservation organizations.
The U.S. Fish and Wildlife Service considers this closure
necessary to protect the pristine condition of the island and
the safety of visitors who must navigate dangerous cliffs to
gain access to Navassa.
The Fish and Wildlife Service closures of Desecheo and
Navassa islands apply not only to general public use but also
to proposals for use via special use permits (SUP). These
closures, based jointly on faulty compatibility determinations,
concerns for public safety, and claims of insufficient
budgetary resources to facilitate use, demonstrate that the
Service has failed to exercise sound professional judgment in
evaluating SUP applications. These closures appear arbitrary
and non-compliant with underlying law, pre-existing public use,
and SUP policies at other remote refuges.
In the case of Desecheo, the Fish and Wildlife Service has
justified its closure based on purported threats to public
safety due to unexploded ordnance and illegal trespassers.
However, as noted earlier, SUPs to visit Desecheo were issued
regularly up until 1998, when suddenly, the Service reversed
course and closed the island, even though the locations of
unexploded ordnance were well documented by a preliminary risk
assessment. An additional 2002 U.S. Army Corps of Engineers
Defense Environmental Restoration Program report corroborated
the preliminary assessment and concluded that the unexploded
ordinance on Desecheo did not constitute a catastrophic or
critical risk. The Committee also finds the perceived threat
posed by visitors running afoul of drug traffickers or
smugglers to be unfounded, since there is no where in the
administrative record any recorded incidents to legitimize this
concern.
In the case of Navassa, the absence of a pier or convenient
site to land people and equipment at the island has lead the
Service to conclude that access is simply too great a
liability, a conclusion reached despite the fact that Service
personnel, personnel from private non-profit organizations, and
local fishermen have routinely and safely landed on the island
for years.
Finally, there is a glaring inconsistency between the
public closures imposed at the Navassa Island and Desecheo
Refuges and access allowed at other island refuges in the
Pacific Remote Islands National Wildlife Refuge complex. It is
indisputable that both islands are valuable ecologically or
that they are remote and difficult to access. However, three
island refuges located in the Pacific (Baker, Howland and
Jarvis) are no less ecologically sensitive. They are, however,
far more remote from their headquarters in Honolulu than either
Caribbean island is from their headquarters. Despite ranging
1,300 to 1,600 miles from Hawaii, these islands are publicly
accessible via SUPs. The latest SUP was issued for Baker Island
in 2002.
A small number of amateur radio operators have sought to
obtain SUPs from the Fish and Wildlife Service for access to
these islands. The first applications were filed on November
26, 2002. In these documents, the applicants sought permission
to operate amateur radio equipment on the islands for a five
day period, and they stipulated to a number of conditions
including that they would ``avoid all wildlife and sea-life on
or near the island.'' Their applications were denied and their
appeals of these decisions have been rejected. Since that time,
they have met with the Fish and Wildlife Service and have
agreed to assume all financial costs (including any
reimbursement to the Fish and Wildlife Service), to waive
liability for any injuries that may occur during their visit
and to comply with all reasonable stipulations required by the
Service.
H.R. 1183 is designed to codify a SUP in this case by
requiring the Service to provide recreational access to Navassa
and Desecheo with certain limitations. These restrictions are:
the Fish and Wildlife Service may limit access to Desecheo and
Navassa to specific time periods; the Service shall give
priority consideration to permit applications that do not
negatively impactopportunities for wildlife-dependent
recreation; and the Service may establish specific conditions for the
permit that are necessary to protect fish and wildlife resources or
public health and safety.
COMMITTEE ACTION
H.R. 1183 was introduced on March 9, 2005, by
Representative Nick J. Rahall II (D-WV). The bill was referred
to the Committee on Resources, and within the Committee to the
Subcommittee on Fisheries and Oceans. On October 19, 2005, the
Full Resources Committee met to consider H.R. 1183. The
Subcommittee on Fisheries and Oceans was discharged from
further consideration by unanimous consent. No amendments were
offered and the bill was ordered favorably reported to the
House of Representatives by unanimous consent.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. According to the Congressional Budget Office,
enactment of this bill could increase offsetting receipts and
direct spending by less than $500,000 a year.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 1183--A bill to require the Secretary of the Interior to provide
public access to Navassa National Wildlife Refuge and Desecheo
National Wildlife Refuge
H.R. 1183 would direct the U.S. Fish and Wildlife Service
(USFWS) to allow public use of the Navassa National Wildlife
Refuge and the Desecheo National Wildlife Refuge, both of which
are located on islands in the Caribbean Sea. Under the
legislation, the agency would provide access to the two refuges
under permits that would contain provisions to protect local
fish and wildlife and public health and safety.
Assuming appropriation of the necessary amounts, CBO
estimates that the federal government would incur one-time
costs of about $10 million over the next two years to provide
safe access to Navassa and Desecheo islands. About $8 million
of this amount would be used by the Department of Defense to
inspect Desecheo (which was once used for military training)
and remove any unexploded ordnance. (This expenditure would
probably occur even in the absence of legislation, depending on
future appropriation action, but not for several years.) The
remaining funds would be used to construct minimal access and
other visitor facilities on the two islands.
We expect that, once the islands have been deemed safe and
accessible, the USFWS would use existing authority to impose
recreation or special-use fees and spend the proceeds to issue
permits and escort visitors to the islands. We estimate that
these activities would increase offsetting receipts and
resulting direct spending by less than $500,000 a year.
Enacting H.R. 1183 would not affect other direct spending or
revenues. This estimate is based on information provided by the
USFWS and the Army Corps of Engineers.
Finally, allowing more people to visit the Desecheo refuge
(which might contain unexploded ordnance even after Corps
inspections) could increase the government's liability under
the Federal Tort Claims Act, but CBO has no basis for
predicting the likelihood that future visitors to the islands
would be injured.
H.R. 1183 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Deborah Reis.
This estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.