Motion to dismiss suit over military training is denied

The federal court has denied a motion to dismiss a lawsuit challenging U.S. Navy plans for the Marine Corps to conduct live-fire training in the CNMI. 

In a decision issued Friday, U.S. District Court for the NMI Chief Judge Ramona V. Manglona said the lawsuit questioning whether the U.S. Navy failed to consider all the impacts associated with the plan to transfer 5,000 Marines from Okinawa to Guam and begin staging massive, live-fire war games on Pagan and Tinian can proceed.

In the same order, Manglona granted the U.S. Department of the Navy’s and the U.S. Department of Defense’s motion to dismiss the groups’ second claim that the Navy and Defense violated the National Environmental Policy Act by failing to consider other locations for the Marines.

Manglona dismissed the second claim with prejudice, which means the environmental and cultural preservation groups that originated the lawsuit cannot re-file the claim.

Manglona gave the Navy, Defense, Navy Secretary Spencer Sworn, and Defense Secretary James Mattis 14 days from Friday to file their responses.

The Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity are suing the defendants for alleged violation of NEPA and the Administrative Procedure Act when the Navy decided to relocate 5,000 U.S. Marines from Okinawa to Guam and to conduct live-fire training on Tinian and Pagan.

Earthjustice filed the lawsuit on behalf of the groups.

The defendants, through the U.S. Department of Justice, sought to have the lawsuit dismissed.

Earthjustice lawyer David Henkin said they are thankful that the judge reaffirmed their stance that the military is not above the law.

“Before deciding to move thousands of Marines to the Marianas, the Navy should have considered the devastation to Tinian and Pagan from the live-fire training those Marines will need to perform their mission.

“The people of Tinian and Pagan will now have their day in court to challenge this existential threat to their homelands,” said Henkin in a statement.

In her 43-page ruling, Manglona said the groups’ first claim that defendants violated NEPA by not putting together a single environmental impact statement does not implicate the political question doctrine, and the court may issue injunctive relief or vacate the record of decision if the merits of the case so require.

Thus, Manglona said, the groups’ first claim is redressible, and the Navy and Defense’s motion to dismiss the first claim for lack of standing is denied.

By contrast, Manglona said, the groups’ second claim that the Navy and Defense violated NEPA by failing to consider alternate locations for sending Marines from Okinawa implicates the political question doctrine because adjudicating the dispute would require the court to second-guess the military decision to relocate to Guam and establish a base with associated training there and on Tinian.

Manglona said that requiring the Navy and Defense to consider other locations after the decision to move to Guam and Tinian was made interferes with a decision made using military expertise.

Thus, the judge said, the court cannot issue an injunction or declaration that the Navy and Defense violated NEPA by failing to consider places outside of Guam and the CNMI for relocation.

Accordingly, Manglona said, a declaration would not resolve the groups’ claims, and they therefore lack standing to pursue declaratory relief for the second claim.

The defendants, through the DOJ, moved to dismiss the groups’ lawsuit on the ground that the court lacks jurisdiction.

First, according to defendants, the claim present a political question because the Executive Branch decided to relocate the Marines as part of a treaty with Japan, and injunctive relief would require the court to conduct foreign affairs, which is a power constitutionally committed to the political branches.

Further, because the injury results from a “binding international agreement,” the court cannot grant meaningful relief, and the groups therefore lack standing to ask for declaratory relief.

Next, the defendants argue that the plaintiffs’ claims are not justiciable because there has been no final agency action and the U.S. has waived sovereign immunity only for review of final agency actions.

Finally, defendants submit that the groups’ claims are not ripe for review because decisions regarding training ranges for the Marines are not yet final, and all of the alleged NEPA and APA violations involving the construction of live-fire training ranges are based on no more than speculation.

In their response, plaintiffs argue that their claims are ripe for review because they challenge defendants’ alleged failure to comply with NEPA and the APA in the Guam and CNMI Relocation and Training EIS, which is final.

On the standing to seek declaratory relief issue, the plaintiffs argue that because the claims do not present political questions, the court has authority to grant the requested relief.

Plaintiffs argue that the requests for injunctive relief do not implicate the political question doctrine because NEPA “is a purely procedural statute” that does not require defendants to change their decisions.

Plaintiffs said the requested injunction would not require the court to second-guess or conduct foreign affairs because NEPA is procedural and does not dictate particular outcomes.

In her order granting in part and denying in part, Manglona said that the Navy and Defense have made final decisions as to their commitments or obligations in the Guam and CNMI Relocation and Training EIS and Record of Decision is sufficient to demonstrate that the action is final.

“Accordingly, lack of finality is not grounds for dismissal,” Manglona said.

On the ripeness issue, Manglona said although the court might benefit from having a complete administrative record, it is not incomplete because the CNMI Joint Military Training EIS is still in draft form.

Manglona said the record is incomplete because the parties have chosen not to submit the complete record from the EIS process that began in 2007.

That said, Manglona said, at this stage of the case, the entire record is not necessary for the court to determine whether it has jurisdiction.

Accordingly, the judge said, the groups’ claims are ripe for review.

On whether plaintiffs’ claims and request for injunctive relief present a political question, Manglona said in sum, the groups’ first claim asks the court to interpret and apply NEPA, not to evaluate the policy decisions or value determinations made by the Navy, and issuing an injunction would not interfere with these decisions.

Put another way, Manglona said, although “military judgments generally” raise political questions, a court must determine if the action taken involved “military expertise and judgment.”

Manglona said deciding whether an action is connected or would create cumulative impacts and therefore must be included in an EIS does not involve military expertise, as evidenced by the fact that all federal agencies are subject to NEPA.

Therefore, she said, entering an injunction would not second-guess decisions taken with military expertise.

“This is true even though the relocation commitment is included in a binding agreement with Japan,” she said.

Manglona said plaintiffs’ first claim does not seek to stop the relocation permanently or force the Marines to relocate to another site.

Manglona said they only seek to stop the relocation until Navy and Defense complete an EIS that considers connected actions or cumulative impacts.

“Nothing in the text of the agreements between the United States and Japan sets forth a timetable for relocation,” said Manglona, adding that an injunction would not countermand or interfere with the terms of a treaty.

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

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

The case involves plaintiffs’ challenge to a large-scale effort by the U.S. Navy and Defense to relocate several thousands of U.S. Marines from Okinawa to Guam.

The groups maintain that this effort may not proceed until defendants comply with the statutory obligations set by NEPA.

Based on the final supplemental EIS, the Navy issued a new Record of Decision. The ROD concluded that the reduced number of Marines relocating to Guam “impact[ed] approximately 850 fewer acres than was projected in 2010,” and therefore required construction of the live-fire training range only on land “currently under the custody and control of the [Department of Defense].