Groups insist on standing to sue Navy over live-fire plan

The four environmental and cultural preservation groups that are challenging the U.S. Navy’s decision to relocate 5,000 Marines from Okinawa to Guam are insisting that their claims are justiciable and that they have standing to sue.

The Tinian Women’s Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity, through Earthjustice counsel David L. Henkin, have filed in federal court their opposition to the U.S. government’s motion to dismiss the lawsuit for lack of jurisdiction.

Henkin asserted that there is no valid basis for the U.S. District Court for the NMI to “abdicate its Article III responsibility—the resolution of “cases and controversies”—in favor of the Executive Branch.

Henkin asked the court to proceed in resolving the merits of plaintiffs’ claims, carrying out “the duty of the judicial departments to say what the law is.”

The plaintiffs are suing the U.S. Department of Navy, Navy Secretary Ray Mabus, U.S. Department of Defense, and Defense Secretary Ashton Carter over the Navy’s decision to station thousands of U.S. Marines in Guam and to conduct live-fire training for those Marines on Tinian and Pagan.

The U.S. government, through U.S. Department of Justice Environmental and Natural Resources Division trial attorney Taylor N. Ferrell, asked the court to dismiss the plaintiffs’ complaint.

Ferrell argued, among others, that the request to slow or stop the relocation of Marines from Okinawa to Guam—based upon Navy’s alleged failure to consider alternative locations outside of the Marianas—is barred by the political question doctrine.

Ferrell said the decision is a policy choice of the Executive Branch—a policy choice that the Executive Branch has formalized in a binding international agreement with Japan.

Henkin pointed out that, under this theory, if the secretary of State enters into an agreement with a foreign country, federal agencies are free to ignore environmental laws enacted by Congress and carry out destructive projects on American soil, with the federal courts powerless to hear challenges to that illegal conduct, much less provide relief to American citizens.

Henkin said the court should reject the call for the court to “shirk its constitutional responsibility merely because its decision may have significant political overtones.”

Citing a U.S. Supreme Court ruling, Henkin said “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”

The lawyer said under the specific facts of this case, where the National Environmental Policy Act imposes purely procedural requirements and the U.S.’ agreements with Japan contemplate compliance with NEPA before Marines relocate from Okinawa, plaintiffs’ claims—including any potential claim for injunctive relief—are justiciable.

Henkin also argued that there is no basis for the argument that plaintiffs are not challenging the final agency action and that, therefore, their claims are not ripe.

The plaintiffs asked the court to declare that the defendants have violated and are violating the NEPA and Administrative Procedure Act by adopting and relying on the legally deficient Final Environmental Impact Statement and the Supplemental Environmental Impact Statements to issue records of decision regarding the relocation of Marines from Okinawa to the Mariana Islands.

The plaintiffs requested the court to vacate and set aside the 2010 and 2015 records of decision regarding the relocation of Marines from Okinawa to the Marianas.

In the defendants’ motion to dismiss filed on Wednesday, Ferrell said the plaintiffs lack standing because the court cannot act to redress their alleged injuries.

In 2012, U.S. and Japan modified their 2006 agreement on reducing the number of Marines stationed on Okinawa. Under the revised agreement, approximately 9,000 Marines would leave Okinawa, but only approximately 5,000 would be relocated to Guam.