Judge grants in part Navy’s, Defense’s request to reverse order to compel

Manglona

U.S. District Court for the NMI Chief Judge Ramona V. Manglona issued an order Thursday that granted in part the U.S. Department of Navy’s and the U.S. Department of Defense’s request for the court to reverse its order that compels them to add more documents to the record in the lawsuit filed by four environment groups.

In the order she issued after the hearing, Manglona said after reviewing the briefs on the motion and the record, she finds that reconsideration of her Feb. 12, 2018 decision and order is warranted.

The Feb. 12 order compels the Navy and Defense to add four specific documents to the record in the groups’ lawsuit. The documents refer to the final training needs assessment, final CNMI Joint Military Training Requirements and siting study, March 14, 2013 Federal Register notice, and draft CJMT environmental impact statement.

In her Feb. 12 order, Manglona found that the Navy had considered the four specified documents when it was preparing the supplemental environmental impact statement regarding the relocation of Marines from Okinawa to Guam.

In her order Thursday, Manglona said with respect to the four specific documents, she has reviewed the arguments submitted by defendants Navy and Defense and is persuaded that her prior ruling was clearly erroneous in part.

The judge granted the groups’ motion to complete the administrative record as to their request for the March 14 Federal Register notice announcing the Navy’s intent to prepare the CJMT EIS, and their request for the draft CJMT EIS.

Manglona ordered defendants Navy and Defense to file with the court these two documents as a supplemental administrative record within 14 days from yesterday.

Manglona denied the groups’ motion to complete the administrative record as to their request for all drafts, analyses, memoranda, letters, emails, presentations, and other documents related to all four specified documents they sought.

The judge also denied the groups’ request to admit the four specified documents and related materials as extra-record evidence.

The Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity, through counsel David L. Henkin of Earthjustice, are suing the Navy, Navy Secretary Richard V. Spencer, Defense, and Defense Secretary James 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.

The groups are suing the defendants 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.

Defendants, through the U.S. Department of Justice, then moved the court to reconsider its Feb. 12 order. The groups opposed the motion.

Defendants argued that it was error for the court to find that any of the four specific documents were considered on relied on by the Navy in preparing the 2010 and 2015 records of decision for the relocation.

Further, defendants maintained that the court erred in granting the groups’ request for all related documents.

In her order Thursday granting in part and denying in part defendants’ motion for reconsideration, Manglona said with respect to the Federal Register notice, defendants submit that it is simply “a notice of intent” but does not indicate the Navy relied on or considered it in conducting the NEPA review for the Guam relocation.

However, Manglona said, the record must include all documents directly and indirectly considered by the agency in reaching a final decision.

Manglona said issuing notices of intent is a required part of the process for creating an environmental impact statement and reaching a final decision.

The judge said the Navy reviewed the Federal Register notice as part of its decision making process with respect to the Guam relocation, and based on the scope of analysis, in part, on what was included in the CJMT environmental impact statement process.

Thus, she said, the notice was considered and that her prior order as to the Federal Register notice stands.

With respect to the training needs assessment and siting study, Manglona concluded that it was clear error that these two documents be added to the record.

Manglona said as defendants originally argued, but the court did not adequately consider, “a mere reference in the administrative record is insufficient.”

With respect to the draft CJMT environmental impact statement, the judge said defendants contend that the emails do not indicate that the Navy considered the substance of the CJMT EIS.

Manglona said as set forth in her Feb. 12 order, the emails demonstrate that Navy employees or contractors shared information about the Guam and CJMIT EIS to ensure that certain information was consistent.

Thus, the judge said she concluded the data in CJMT EIS was both available to and considered by the Navy when undertaking the NEPA review for the Guam relocation.

Manglona said the defendants have offered no new information or arguments to persuade her that her decision was clearly erroneous.

Accordingly, she said, the draft CJMT EIS that was available at the time of the final Guam supplemental environmental statement impact and Records of Decision in 2015 must be added to the administrative record.

Finally, Manglona said, the groups offered no evidence to suggest that defendants considered drafts, analyses, memoranda, letters, emails, presentations, and other documents related to the four specified documents.

Accordingly, Manglona said, it was clear error for the court to have granted the request to require defendants to include these related documents in the administrative record.