Justice: Evolving security challenge is paramount in Marines relocation plan

With rapidly evolving security challenges in the Asia-Pacific region, “there is an unusual need for unquestioning adherence to the political decision already made” to relocate Okinawa-based Marines to Guam, and to maintain the United States’ commitment to Japan, according to the U.S. Department of Justice.

But four environmental and cultural preservation groups led by the Tinian Women Association, through counsel David L. Henkin and Kimberlyn K. King-Hinds, maintained that they do not seek to invalidate the agreement between the U.S. and Japan that calls for Marines to leave Okinawa.

Rather, the groups said, they seek merely to ensure that the U.S. Department of the Navy will follow procedures such as comply with the National Environmental Policy Act to evaluate in a single Environmental Impact Statement all impacts associated with stationing Marines in the Marianas and to consider other locations that would accomplish the mission with fever environmental impacts.

The groups—Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity—are suing the U.S. Department of Navy, U.S. Department of Defense, Navy Secretary Richard V. Spencer and Defense Secretary James Mattis for alleged violation of NEPA, and Administrative Act over the Navy’s decision to relocate 5,000 U.S. Marines from Okinawa to Guam and to conduct live-fire training on Tinian and Pagan.

In a prior briefing, the DOJ, counsel for the U.S. Navy, and co-defendants cited a district court’s decision in a lawsuit filed by the Biological Diversity against Hagel (“Okinawa Dugong”) in support of its motion to dismiss the four groups’ NEPA alternatives claim.

On Aug. 21, 2017, the U.S. Court of Appeals for the Ninth Circuit reversed the district court, finding that the plaintiffs in the Okinawa Dugong case had standing to seek declaratory and injunctive relief and that the plaintiffs’ claims did not present a political question.

With that Ninth Circuit ruling, U.S. District Court for the NMI Chief Judge Ramona V. Manglona recently ordered the parties in the groups’ lawsuit to submit supplemental briefs to address whether and to what extent such ruling affects the U.S. pending motion to dismiss the case.

In the supplemental memorandum filed last week, DOJ Environmental & Natural Resources Division trial attorneys Taylor N. Ferrell and Joshua P. Wilson asserted that the Ninth Circuit ruling does not change the controlling analysis applicable to the plaintiffs’ NEPA alternative claim, and does not affect the U.S.’s motion to dismiss the case.

Wilson said in reversing the district court’s ruling, the Ninth Circuit did not overturn its own prior decision in a separate Salmon Spawning case, nor did it disturb the decades of rulings by the U.S. Supreme Court and Courts of Appeals that the U.S. has argued are dispositive of plaintiffs’ NEPA alternative claim.

Rather, Wilson said, the Ninth Circuit held only that the particular procedural claims the Okinawa Dugong plaintiffs made—claims challenging the implementing details but not the fundamental basis of an international agreement—are justiciable claims; redressable under the Administrative Procedure Act and National Historic Preservation Act.

Wilson said by contrast, plaintiffs’ NEPA alternatives claim attacks the policy decision underlying the Guam International Agreement, presents a non-justiciable political question, and seeks relief that plaintiffs lack standing to pursue.

Wilson said because the appeal in Okinawa Dugong did not raise and the Ninth Circuit did not address, issues concerning ripeness or finality, the decision does not impact the U.S. motion to dismiss count 1 of the plaintiffs’ complaint on those grounds.

In the Okinawa Dugong case, the plaintiffs sued to stop the construction of the Futenma Replacement Facility, a military base being constructed in Okinawa as an alternative to the original base built to support Marine Corps aircraft operations after World War II.

Wilson said the Okinawa Dugong case involved a challenge to “the details of a military base’s construction and operation.”

Wilson said the claims advanced in the Okinawa Dugong case are quite different from the plaintiffs’ NEPA alternatives claim.

Wilson said plaintiffs do not claim that the Navy or DoD violated NEPA by failing to consider adequately aspect of the Guam relocation that, if mitigated or changed, could lessen the environmental impact of the relocating Marines.

Instead, Wilson said, plaintiffs allege that the U.S. violated NEPA by failing to consider the possibility of not relocating the Marines to Guam at all—a strategic and diplomatic option consistent with the Guam International Agreement.

Wilson said plaintiffs’ NEPA alternatives claim attacks the executive policy’s decision to relocate Marines to Guam.

Wilson said because its NEPA alternative claim cannot be redressed, plaintiffs lack Article III standing to pursue declaratory relief.

Wilson said even if the court holds that the U.S. “violated NEPA” by not considering alternative locations for the Okinawa-based Marines, the court cannot order the Secretaries of State and Defense to back out of their commitments to Japan.

In plaintiffs’ supplemental memorandum, Henkin of Earthjustice said the Ninth Circuit’s unanimous decision reflects a wholesale repudiation of the arguments defendants advance here in support of their motion to dismiss with respect to both standing and the political question doctrine.

Henkin said reaffirming the centuries-old principle that “it is emphatically the province and duty of the judicial department to say what the law is,” the Ninth Circuit squarely rejected the defendants’ suggestion that “the executive branch can ask the court for leave to ignore acts of Congress” merely because a case touches on foreign affairs or national security.

Henkin said the Ninth Circuit ruling makes clear that the Tinian Women Association and the three other groups have standing to seek both declaratory and injunctive relief regarding defendants’ NEPA and APA violations and that the political question doctrine does not bar this court from assessing the legality of the defendants’ actions.

As the Ninth Circuit emphasized, Henkin said, “to declare that courts cannot even look to a statute passed by Congress turns on its head the role of the courts and our core respect for a co-equal political branch, Congress.”

He said the Ninth Circuit instructed that, “when confronting a statutory question touching on subjects of national security and foreign affairs, a court does not adequately discharge its duty by pointing to the broad authority of the President and Congress and vacating the field without considered analysis.”

Henkin said considered analysis of the relevant facts and law compels rejection of defendants’ request to dismiss based on the political question doctrine.

Manglona heard the motion to dismiss last Feb. 9. She placed the matter under advisement.