IN ENVIRONMENTAL GROUPS’ SUIT VS NAVY OVER LIVE-FIRE PLAN
DOJ: Federal court lacks jurisdiction
Tag: CJMT, Executive Branch, Guam, Japan
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.