Groups oppose reversing court order to add documents

Four environmental groups are opposing the U.S. Department of Navy’s and the U.S. Department of Defense’s request for the U.S. District Court for the NMI to reverse its order that compels them to add more documents to the record in the lawsuit filed by the groups.

The Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity, through counsel David L. Henkin of Earthjustice, said the district already resolved in its Feb. 12, 2018, order their motion for the Navy and Defense to complete the administrative record.

Henkin said the Navy and Defense are acting as if the earlier round of briefing on the groups’ motion never happened, and as if the court were rendering a decision on a blank slate.

Henkin said reconsideration is reserved for exceptional circumstances and does not give the Navy and Defense license to rehash old arguments or advance new ones.

The lawyer said the court applied the correct standard for completing the administrative record.

He said the documents in dispute all reflect the Navy’s own analyses, prepared at the same time as the supplemental environmental impact statement regarding the training that Marines relocated to Guam would require in the CNMI.

Henkin said the court did not err in concluding the Navy considered the six documents cited in the groups’ motion and, accordingly, those documents must be added to the record.

Henkin said the court did not err in ordering completion of the record with documents related to the Navy’s analyses of the training needs of Guam-based Marines.

“To avoid further delay in reaching the merits of this case, the court should compel defendants promptly to complete the record with the improperly omitted documents,” he said.

In their motion for reconsideration, the Navy and Navy Secretary Richard V. Spencer, and Defense and Defense Secretary James Mattis asked the court to deny the groups’ motion to supplement the record in their lawsuit.

Joshua P. Wilson, the Department of Justice’s Environmental & Natural Resources Division trial lawyer, said the groups asserted at the Feb. 23, 2018, hearing that they are not seeking the entire CNMI Joint Military Training record and that they are only seeking documents related to a supposed finding that the training on Tinian analyzed in the 2010 final environmental impact statement and approved in the 2010 record of decision would be inadequate to satisfy the requirements for Marines based in Guam.

But the Navy has made no such finding, according to Wilson.

Wilson said an order requiring the Navy to search for and compile documents within this category would likely require months of work to identify potential custodians, and collect and review documents for content and privilege.

Last March 5, U.S. District Court for the NMI Chief Judge Ramona V. Manglona denied the groups’ motion for the court to enforce its Feb. 12 order that compels the Navy and Defense to add four documents to the record in their lawsuit.

The groups are suing the Navy, Spencer, Defense, and Mattis over the Navy’s decision to relocate 5,000 U.S. Marines from Okinawa to Guam and to conduct live-training on Tinian and Pagan for alleged violation of the National Environmental Policy Act and Administrative Procedure Act.

The groups claim that the Navy and DOD have violated NEPA and APA by failing to consider the relocation efforts and potential construction of live-fire training ranges on Tinian and Pagan as “connected actions” in a single environmental impact statement.

In her Feb. 12 order, Manglona ordered the Navy, Spencer, Defense, and Mattis to compete the administrative record in this case within 30 days.

The four documents refer to the final training needs assessment dated April 2012 and revised in March 2013; final CNMI Joint Military Training Requirements and Siting Study dated January 2013 and revised March 2013; March 14, 2013, Federal Register notice announcing the Navy’s intent to prepare the CNMI Joint Military Training; and the draft CNMI Joint Military Training EIS/overseas EIS dated April 2015.