Navy, Defense ask court to reverse order to compel them to add documents

The U.S. Department of Navy and the U.S. Department of Defense asked the U.S. District Court for the NMI last Monday to reverse its Feb. 12 order that compels them to add four documents to the record in the lawsuit filed by four environmental groups.

Navy and Navy Secretary Richard V. Spencer, and Defense and Defense Secretary James Mattis, through the U.S. Department of Justice, asked the court to deny the groups’ motion to complete or supplement the record in their lawsuit.

DOJ Environmental & Natural Resources Division trial attorney Joshua P. Wilson said the groups asserted at the Feb. 23 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.

“This process is tantamount to creating a new administrative record,” he said.

The groups, Wilson said, should not be allowed under the auspices of a “motion to complete the record” to launch a backdoor attack on the contents of a draft environmental impact statement for a separate non-final agency action that they persuaded the court they were not challenging.

“Such a result would not only undermine the court’s ruling denying the United States’ motion to dismiss, but would produce an administrative record totally at odds with the law and unrecognizable to the record the Navy actually certified in connection with the Guam relocation,” Wilson said.

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 February 2018 order that compels the U.S. Department of Navy and the U.S. Department of Defense to add four documents to the record in their lawsuit.

Manglona denied without prejudice the motion to enforce.

This means the judge did not grant the groups’ request for relief, but allowed them to re-file the motion at a later time.

The groups—Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity—are suing the Navy, Navy Secretary Spencer, Defense, and Defense Secretary 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 for alleged violations of the National Environmental Policy Act and Administrative Procedure Act.

The groups claim the Navy and DOD violated NEPA and APA by not coming up with a single environmental impact statement on the relocation efforts and potential construction of live-fire training ranges on Tinian and Pagan.

In their motion to enforce, the groups have requested the court to enforce its Feb. 12 order to compel Navy and Defense to add four documents to the record in their lawsuit 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.

In their motion to enforce, the groups, through counsel David L. Henkin of Earthjustice, and Kimberlyn K. King-Hinds, asked the court to order Navy and Defense to begin the process of identifying, compiling, and reviewing the documents the court identified as needed to complete the administrative record in this case.

In her Feb. 12 order, Manglona ordered the Navy, Spencer, Defense, and Mattis to compete the administrative record 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.