Motion OK’d to force Navy, DOD to expand records

U.S. District Court for the NMI Chief Judge Ramona V. Mangloña has granted the motion filed by four groups to force the U.S. Department of Navy and the U.S. Department of Defense to add four documents to the record in the groups’ lawsuit over the Navy’s decision to relocate 5,000 U.S. Marines from Okinawa to Guam and to hold live-fire training on Tinian and Pagan.

In a ruling on Monday, Mangloña ordered the Navy, Navy Secretary Richard Spencer, DOD, and Defense Secretary James Mattis to complete the administrative record in this case within 30 days.

Mangloña said the four environmental and preservation groups have shown that the Navy and DOD considered the four documents in coming up with the supplemental environmental impact statement related to relocating Marines to Guam and must be made part of the record.

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;

-the 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.

The groups—Tinian Women Association, Guardians of Gani, Pagan Watch, and the Center for Biological Diversity—are suing the U.S. Navy, Navy Secretary Richard V. Spencer, DOD, and Defense Secretary James Mattis for alleged violation of the National Environmental Policy Act and Administrative Procedure Act.

Earthjustice filed the lawsuit on behalf of the groups.

The groups claim that the Navy and DOD should have created a single environmental impact statement related to the relocation efforts and potential construction of live-fire training ranges on Tinian and Pagan. Not doing so fails to consider them as “connected actions” and therefore violates NEPA and APA, the groups said.

They claim that the Navy and DOD failed to consider the cumulative impact of the relocation and live-fire training sites in a single EIS.

The groups also brought a second claim against the Navy and DOD for allegedly failing to consider other locations for stationing and training the U.S. Marines. The district court had already dismissed the second claim, saying it is a non-justiciable political question.

According to court records, following this ruling, the parties held a “meet and confer” to discuss eight sets of materials that the groups believed should be added to the record. The Navy and DOD agreed to lodge four of the sets of materials with the court.

The groups then filed this motion to complete the administrative record, alleging that that the record is incomplete because the four documents and materials underlying these documents are not included.

The Navy and DOD did not oppose the request insofar as the documents are used solely for this motion, but oppose their use at the summary judgment stage of the case on the ground that they were excluded from the record.

In granting the groups’ motion to complete the administrative record, Mangloña said the Navy and DOD lodged the four sets of omitted materials with the court and provided a corrected certification that the record is now complete.

Thus, Mangloña said, that the Navy and DOD conceded several documents were omitted is not enough to rebut the presumption here.

On the March 14, 2013, Federal Register notice, Mangloña said because the draft supplemental environmental impact statement refers to such notice, the court finds that the Navy considered the notice as part of its preparation of the SEIS and grants the groups’ request to include it and the related materials as part of the administrative record.

On the training needs assessment and siting study, the judge said the March 14, 2013, notice expressly references these studies, and the notice itself was considered in connection with the draft supplemental environmental impact system.

Thus, Mangloña said, the groups have provided clear evidence that the Navy was aware of and considered these documents while preparing the SEIS.

On the draft CNMI Joint Military Training environmental impact statement, Mangloña said the October 2013 emails referenced by the parties involve a discussion of which species to include in the CJMT environmental impact statement and how to designate the categories of species.

Mangloña said the discussion was prompted by a comment from Angela Anders, the lead for the CJMT environmental impact statement, and the email participants were discussing whether the CJMT EIS should be consistent with the Guam SEIS.

Mangloña said this is direct evidence that the information included in the CJMT EIS was considered by the decision-makers who were completing the Guam SEIS.