‘Navy, DOD’s record omits analyses of training needs’

The U.S. Department of Navy and the U.S. Department of Defense omitted critical analyses of training needs when the Navy prepared the supplemental environmental impact statement for the Guam relocation of thousands of U.S. Marines, according to the four environmental and cultural preservation groups.

David L. Henkin of Earthjustice, which is representing the groups, said the U.S. District Court for the NMI should order either completion or supplementation of the record to allow effective judicial review.

The groups—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 Policy 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 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.

Manglona dismissed the groups’ second claim with prejudice, which means they cannot re-file the claim.

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

The Navy and DOD are opposing the request of the groups to compel the Navy to add documents to the record, saying the groups failed to demonstrate 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.

In the groups’ reply filed in court on Friday in support of their motion to complete the administrative record, Henkin of Earthjustice said that, while the Navy and DOD have now amended their certification to assert the record “contains all documents directly or indirectly considered by the Navy’s decision makers,” the Navy’s continued insistence on excluding key Navy documents related to the training needs of Guam-based Marines proves the Navy continues to apply the wrong standard for compiling the administrative record.

Henkin said the groups’ moving papers include excerpts from specific documents that the Navy prepared at the same time it drafted the supplemental environmental impact statement.

He said Navy and DOD do not deny the existence of related documents that informed the Navy’s analysis of the highly destructive training that Guam-based Marines will need to conduct on Tinian and Pagan, none of which the Navy disclosed in its supplemental environmental impact statement.

Henkin said the court should squarely reject the Navy and DOD’s claim that, when the Navy signed off on the 2015 supplemental environmental impact statement and associated record of decision for the Guam relocation, it was unaware of the draft CNMI Joint Military Training the Navy itself had just issued and the relocated documents reflecting the Navy’s own determinations that highly destructive training on Tinian and Pagan would be required if thousands of Marines relocate to Guam.

He said defendants’ opposition is notable for its complete silence regarding the Navy’s primary responsibility for both environmental reviews.

He said the record conclusively refutes the defendants’ suggestion that, when the Navy was drafting the supplemental environmental impact statement, it was ignorant of the work on the CNMI Joint Military Training Environmental Impact Statement.

On the contrary, Henkin said, from the highest levels of its leadership on down, the Navy coordinated preparation of both environmental impact statements with the same Navy unit—Naval Facilities Engineering Command, Pacific—tasked with completing both documents, as well as preparing the training needs assessment and the siting study, which identified the specific training that Guam-based Marines would need to conduct on Tinian and Pagan.

On Nov. 9, 2017, the Navy lodged the administrative record in this case that contained over 14,000 documents.

Last Jan. 12, the Navy submitted additional documents inadvertently omitted from the filed record in a corrective administrative record.

In defendants’ opposition, DOJ said plaintiffs 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.