IN ENVIRONMENTAL GROUPS’ SUIT VS NAVY OVER LIVE-FIRE PLAN

DOJ: Federal court lacks jurisdiction

The U.S. government has asserted that the federal court lacks jurisdiction in a lawsuit filed by four environmental and cultural preservation groups against the U.S. military and its officials over the Navy’s decision to station thousands of U.S. Marines in Guam and to conduct live-fire training for those Marines on Tinian and Pagan.

The U.S. government, through U.S. Department of Justice Environmental and Natural Resources Division trial attorney Taylor N. Ferrell, asked the U.S. District Court for the NMI to dismiss the plaintiffs’ complaint with prejudice.

Dismissal with prejudice means the plaintiff can no longer re-file the lawsuit.

Ferrell said the plaintiffs’ request for the court to stop the relocation of Marines from Okinawa to Guam—based upon the Navy’s alleged failure to consider alternative locations—is barred by the political question doctrine.

Ferrell said the decision to realign U.S. forces from Japan to Guam is a policy choice by the Executive Branch—a policy choice that the Executive Branch has formalized in a binding agreement with Japan.

The Tinian Women’s Association, Guardians of Gani, PaganWatch, and the Center for Biological Diversity are suing the U.S. Department of Navy, Navy Secretary Ray Mabus, and U.S. Department of Defense, and Defense Secretary Ashton Carter for alleged violation of the National Environmental Policy Act and Administrative Procedure Act.

The complainants, through Kimberlyn K. King-Hinds, asked the court to declare that the defendants have violated and are violating the NEPA and APA by adopting and relying on the legally deficient Final Environmental Impact Statement and Single Environmental Impact Statement to issue records of decision regarding the relocation of Marines from Okinawa to the Marianas.

King-Hinds asked the court to vacate and set aside the 2010 and 2015 records of decision regarding the relocation of Marines.

The plaintiffs demanded payment for court costs and attorney’s fees.

In the defendants’ motion to dismiss filed on Wednesday, Ferrell said the plaintiffs lack standing to assert their claims for declaratory relief with respect to the Guam relocation, because the court cannot act to redress their alleged injuries.

Ferrell said plaintiffs’ claims seeking APA review of the Joint Military Training regime proposed for Tinian and Pagan should also be dismissed for lack of jurisdiction, because those claims do not challenge any final agency action.

Ferrell said the U.S. has not waived sovereign immunity over the plaintiffs’ CJMT-related claims, and that those claims are unripe for adjudication.

Ferrell said plaintiffs’ request for injunctive relief and to vacate the records of decision regarding the relocation of Marines from Okinawa to the Mariana Islands presents a non-justiciable political question.

Ferrell said plaintiffs ask the court to set aside or enjoin a decision made by top Cabinet officials in the Executive Branch and formalized in political commitments and binding international agreements with an important U.S. ally.

This request for relief, Ferrell pointed out, raises precisely the set of core concerns that animate the political question doctrine.

Ferrell said the court should dismiss as non-justiciable plaintiffs’ request that the court second-guess the Executive Branch decision to relocate Marine forces from Okinawa to Guam as part of a diplomatic and military strategy to protect the U.S.’ interests in the Pacific.

Ferrell said the secretaries of State and Defense arrived at a decision to relocate Marines from Japan and to station those forces in Guam. He said that Japan has agreed to fund the building of infrastructure to facilitate the relocation.

Ferrell said the U.S. and Japan have entered into a binding international agreement to carry out that plan.

Ferrell said plaintiffs’ claims ask the court to disrupt this diplomatic arrangement, upending Executive Branch policymaking, and calling into question the ability of the U.S. to honor its commitments.

“Such a claim is non-justiciable under the political question doctrine and should be dismissed,” he asserted.

Ferrell cited that no Department of Defense component has completed its decision-making process for the Joint Military Training program training, and there is no final agency action under the APA with respect to the CJMT live-fire training ranges on Tinian or Pagan.

Ferrell said because the court has no jurisdiction under the APA to review Defense’s Pacific Command’s preliminary analysis of impacts from proposed CJMT training on Tinian and Pagan, the plaintiffs’ claim that the proposed training on the two islands was improperly segmented from the Guam relocation proposal is also non-justiciable.

Ferrell said because the CJMT Environmental Impact Statement is in draft form, it is not a final agency action, and therefore this court does not have jurisdiction to review it under the APA.

Ferrell said plaintiffs’ claims that the Navy failed to consider alternative training locations are not justiciable because there is no final agency action for proposed CJMT training on Tinian and Pagan.

On ripeness issue, Ferrell said if plaintiffs choose to bring their claims after a decision is made on CJMT training on Tinian and Pagan, the court will be able to review those claims with the benefit of a complete administrative record which, along with the decision document, will provide the basis for the court’s review.

Earthjustice attorney David Henkin had stated when the lawsuit was filed in July that the Navy’s decision would have devastating consequences for the people of Tinian and Pagan.

Henkin said NEPA requires the Navy to take a hard look at all of the impacts associated with relocating 5,000 Marines to Guam and to look at alternative ways to accomplish its goals before making such a decision.

“The Navy blatantly violated those mandatory legal duties when it decided to station Marines on Guam without any consideration of the destruction from live-fire training the Navy claims those Marines will need or of other places those Marines could be trained with far fewer impacts,” Henkin said in a statement.

King-Hinds stated in the complaint that in July 2010, the Navy issued a final Environmental Impact Statement to evaluate the relocation of approximately 8,600 Marines from Okinawa to Guam.

The relocation was proposed to implement an agreement the U.S. and Japan reached in 2006 to reduce the number of Marines stationed on Okinawa.

King-Hinds said despite numerous public comments urging the Navy to examine alternate locations for the stationing of Marines relocated from Okinawa, the Navy refused to do so.

In 2012, U.S. and Japan modified their 2006 agreement, reducing the number of Marines stationed on Okinawa.

Under the revised agreement, approximately 9,000 Marines would leave Okinawa, but only approximately 5,000 would be relocated to Guam.

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Ferdie De La Torre | Reporter
Ferdie Ponce de la Torre is a veteran journalist who has covered all news beats in the CNMI. Born in Lilo-an, Cebu City in the Philippines, De la Torre graduated from the University of Santo Tomas with a bachelor’s degree in journalism. He is a recipient of many commendations and awards, including the CNMI Judiciary’s prestigious Justice Award for his over 10 years of reporting on the judiciary’s proceedings and decisions. Contact him at ferdie_delatorre@saipantribune.com

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  • Chamoru First!

    Very Simple lai…American and CNMI defense FIRST! No matter what you think…US. Constitution is Supreme!

  • Peter J. Perez
  • jun

    “Earthjustice attorney David Henkin had stated when the lawsuit was filed
    in July that the Navy’s decision would have devastating consequences
    for the people of Tinian and Pagan.”

    Excuse me sir, I am from Tinian and I disagree with your statement above. When the United States of America leased two third of Tinian, our people were aware that one day, the Department of Defense would use such site as a bombing ground. I vaguely remember some were against such predicament, but the majority agreed to such arrangement. In America, the majority rules and let us respect the decisions of the past voters on Tinian. You do not represent me or the rest of my family who call Tinian home.

    • Peter J. Perez

      Sorry Jun, but you’re mistaken. The lease was for a military base. Part of the agreement was that the people of Tinain would have first right to base jobs, and they could send their chlldren to base schools, the base hospital would treat the local people, and they could even use the movie theatre. That is why the people of Tinain agreed to move out of the top 2/3 of Tinain and trun it over tothe military. Now, 40 years later, the Navy has decdied, on its own, without asking, to use the land instead for a live-fire range for howitzers, rockets, mortars, missles, hand grenades, amphibious landing practice, etc. This is destructive and dangerous to the local people who will end up being driven from Tinain by the noise, dust, danger and contaminated water. That is what is going on here. Not the limited small arms training that was expect as an on-base activity in support of the troops stationed there, but full-on destructive live-fire practice by visiting Marines. A bombing range is not a base.

      • jun

        I think your assumption is wrong from the beginning. During the negotiation phase of the plan to let the United States use two third of Tinian for military purpose, we were told that it would be used for the purpose of military training and bombing was included. The island next to Goat island was bombarded or torpedoed by the Navy during such time frame and we were well aware of their intentions. The economic benefits, the opportunity to migrate to the United States unrestricted, and the money involved to be given to the land owners on Tinian and the list goes on were the reasons why many agreed to give up two third of Tinian. The reason I know about such thing, because Pinchang would seek the advice of our late father on issues that were being discussed by the negotiators in D.C. And you were nowhere near when the people of Tinian were debating about their future or fate. Please refrain from representing me and the rest of my family on issues relating to military build up in Tinian. Not only I am from Tinian, but we owned properties and we are register voters. Please don’t try to twist the fact that majority of the people of Tinian, knowingly allowed the United States Government to lease two third of Tinian for military purposes (bombing, nuclear silos, etc.) , in exchange for the blue passport and the perks that goes with it. And yes, the blue passport, the money and becoming United States Citizens were the reasons, not your so call movies, hospitals, etc.

        • Chamoru First!

          Hana’ rata magahit gi supin tasi ya pe’dadang. The American democratic principles, patriotism, loyalty has buried itself on Tinian! Overwhelmed by strange oriental presence, attitudes, and suspicious business activities, we long for American presence. Therefore, people like Jun and me and many others share a common ground with America. Tinian proudly boast the highest number of enlistment in the military service per capita! Preach on Bro!…..like you said Luv it or leave it!

        • Peter J. Perez

          Again, you’re mistaken Jun.

          If you read the Covenant Agreement, if you read “An Honorable Accord” by Howard Willens and Deanne Siemer, and if you read Technical Agreement that pertains to the Tinian Lease, you’ll have the accurate information your understanding is lacking. The Covenant Agreement and the Technical Agreement are available online at Chamorro.com. Please start reading and educate yourself before making dangerous and uninformed statements.

          The Navy was not authorized by the lease agreement to bomb Tinian. They were only allowed to do some training there.

          Only your statement about Naftan Rock (the small island off of Aguiguan (Goat Island) is correct in that the Navy bombed that poor island. It is a dead island today, very sad to see – totally devoid of topsoil, nothing growing on it. Naftan Rock would have looked like Bird Island or Forbidden Island and been a beautiful sight, but now it just a broken, devastated island. Just as Pagan will be, just as Tinian will be under the Navy’s plan for 120 years of destructive live-fire.

          Keep it up Jun, and maybe Tinian’s residents will soon join you on the U.S. mainland when they are driven from their homes by the danger, noise, contamination and toxic dust of high-level live fire.

          Your assumption that our loss of Tinian and Pagan are justified and necessary for national security is also wrong. It won’t make any difference to the security of the United States since the Navy, Airforce and Marines already have 30,000,000 acres of live fire training land and fully developed training programs that they use to train the 1.5 million active duty personnel. The can easily send the 4,800 Marines to join the others for training.

    • Chamoru First!

      Wise statement Jun…We are the Masters of our island…America… welcome back!

  • Ioanes

    Honoring the treatise of our country is inherent under the Covenant Agreement!

    • Chamoru First!

      Indeed!

  • Stknspn

    It’s so easy for people to forget the past of what happened in Guam and the surrounding islands. I guess you’ll remember when another country would like to take these islands by force. And then you’ll ask where is the U. S. marines? Where is the U. S. army? And you’ll say that your an American citizen and you have rights. Well guess what. Alot of country’s don’t abide by the Geneva convention category and could care less if you live or die. So stick that in your place where the sun doesn’t shine!!!!! Guam and the surrounding areas are part of America and if your so proud to have your american passport and the benefits that come along with that. Then you should be more then happy to welcome the U. S. military. If not. Move to china!!!!!!

    • Chamoru First!

      Dalai hao …sen metgut! That’s sums the most loyal American local Patriotism…forget the past is very compassionate..typical islander indeed! Roaring like a lion to defend America …i like this guy!

  • ombre gachong

    I don’t see how the US military would jeopardize the livelihood of the people to prioritize destruction of their (the peoples’) environment…
    I’m sure we are polluting ourselves more than they intend to.

  • jun

    Be nice chelu, just trying to exercise my constitutional rights.

    • naisur

      Of course you are. What is wrong with that I would quote your exchange?
      I will quote it like this: “One local guy under web nickname Jun said… ”
      What would be wrong with that?

  • jun

    From the expansion of the Chinese military within our ocean.

  • Peter J. Perez

    Certainly.

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