Navy, DOD oppose groups’ request to submit 4 additional documents

The U.S. Department of Navy and the U.S. Department of Defense are opposing the request of four environmental and cultural preservation groups to compel the Navy to add more documents to the record in the groups’ lawsuit 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.

The U.S. Navy and DOD asked the U.S. District Court for the NMI to deny the groups’ request because they failed to show that the Navy considered those documents in connection with the Guam relocation decisions.

The documents refer to an assessment of current training ranges and supporting facilities in the U.S. Pacific Command Area of Responsibility dated April 2012 and revised March 2013, and the final CNMI joint military training requirements and siting study dated January 2013 and revised March 2013.

The other documents being sought are the March 14, 2013, Federal Register notice announcing the Navy’s intent to prepare the CNMI joint military training environmental impact statement overseas environmental impact statement, and the draft CNMI joint military training environmental impact statement overseas environmental impact statement dated April 2015.

The groups—the Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity—are suing the U.S. Navy, Navy Secretary Richard V. Spencer, DOD, and DOD Secretary James Mattis for alleged violation of the National Environmental Police Act and Administrative Procedure Act.

Earthjustice filed the lawsuit on behalf of the groups.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona had already granted the Navy’s and Defense’s motion to dismiss the groups’ second claim that the Navy and Defense violated NEPA by failing to consider alternative locations for sending Marines from Okinawa.

That second claim was dismissed with prejudice, which means the groups cannot re-file the claim.

Their remaining claim before the court alleges that the U.S. Navy failed to evaluate in a single environmental impact statement two separate programs: the relocation of U.S. Marines from Okinawa to Guam and the proposed training programs for U.S. Pacific Forces on Tinian and Pagan.

On Nov. 9, 2017, the U.S. Navy turned over to the court over 14,000 documents representing its administrative record of the decisions.

Last Jan. 12, the Navy submitted additional documents that were “inadvertently omitted” from the filed record.

The four groups now want the court to compel the U.S. Navy to add four more documents to the record.

In their opposition, the U.S. Navy and DOD, through Taylor N. Ferrell, trial attorney of the U.S. Department of Justice Environmental & Natural Resources Division, said the groups must provide clear evidence that the Navy considered the documents in preparing its 2010 final environmental impact statement and 2015 supplemental environmental impact statement for the relocation of Marines to Guam.

Ferrell said the four groups have failed to meet that burden.

Ferrell said the Pacific Command training needs assessment, the CNMI joint training study, the CNMI joint military training Federal Register notice, and the CNMI joint military training CNMI draft environmental impact statement overseas statement are all outside of the scope of the 2010 final environmental impact statement and 2015 supplemental environmental impact statement because those documents were prepared as part of a separate, ongoing federal action.

Thus, Ferrell said, the Navy’s decision-makers for the Guam relocation did not incorporate the Pacific training the CNMI joint military training documents into the Guam relocation NEPA process or otherwise consider those documents when making the decision to relocate the Marines to Guam.

Although the Guam final environmental impact statement and supplemental environmental impact statement mention the ongoing efforts by the DOD and Navy to assess training needs in the Pacific region and to fulfill those needs through the CNMI joint military training, Ferrell said the Navy did not consider the four documents in arriving at its decision regarding the relocation of Marines to Guam.

With Manglona’s ruling that denied the defendants’ motion to dismiss the claims, Earthjustice attorney David Henkin said they are thankful that the judge reaffirmed that the military is not above the law.