The U.S. Navy\u2019s findings for the Marianas Islands training and testing area are vulnerable to a legal challenge, on the same grounds a court ruled against the adoption of similar military plans in the Hawaii and Southern California range, Saipan Tribune learned.<\/p>\n
These plans failed to, among others, address a true \u201cno action\u201d training alternative, failed to analyze alternatives with less environmental harm, and thus failed to comply with the National Environmental Policy Act.<\/p>\n
In March, a Hawaii court found illegal the National Marine Fisheries Service\u2019s approval of Navy sonar, deep-sea detonation, and other training in the Hawaii\/Southern California range.<\/p>\n
These findings were found to be \u201carbitrary and capricious\u201d in a 66-page court ruling that sided with the Conservation Council for Hawaii and the National Resources Defense Council, the groups suing the Service.<\/p>\n
\u201cSearching the administrative record\u2019s reams of pages for some explanation as to why the Navy\u2019s activities were authorized by the [NMFS], this court feels like the sailor in Samuel Taylor Coleridge\u2019s The Rime of the Ancient Mariner who, trapped for days on a ship becalmed in the middle of the ocean, laments, \u2018Water, water every where, nor any drop to drink,\u2019\u201d wrote U.S. District court Judge Susan Oki Mollway.<\/p>\n
In the Marianas, the court ruling sets precedent for challenges to the impending go-ahead for similar training in the Marianas, and the potential authorization of incidental take or harassment by the NMFS, Saipan Tribune learned.<\/p>\n
The Navy contends, though, that the \u201ccurrent ruling does not affect Navy training and testing activities outside of the Hawaii and Southern California study area\u201d in a statement from Joint Region Marianas.<\/p>\n
But CNMI officials have said the ruling helps set the \u201clegal foundation\u201d for the protection of marine mammals in the region.<\/p>\n
Marc Fink, senior attorney for and part of the Center of Biological Diversity\u2019s Strategic Litigation Group, one of the groups leading the Hawaii case, agreed that the MITT is similar to the EIS at issue in Hawaii \u201cby failing to consider a true \u201cno action\u201d alternative.\u201d<\/p>\n
\u201c\u2026And by failing to consider a broad enough range of alternatives,\u201d he said.<\/p>\n
Similarly, the CNMI Joint Military Training DEIS for live-fire training on Pagan and Tinian also \u201cfails to consider alternatives in other regions.\u201d<\/p>\n
Fink was responding to questions on their future involvement in the Marianas and the kind of legal foundation the Hawaii case sets for people who wish to challenge the Navy\u2019s findings.<\/p>\n
Fink went on to say the Center also believes the Navy has violated law by failing to consider the combined environmental impacts of these two MITT and CJMT proposals within the same EIS.<\/p>\n
\u201cSimilar proposals in the same region at the same time must be considered together, in a single EIS,\u201d the attorney emphasized, noting also their concern about the environmental impacts of these proposals on marine mammals and endangered species, including coral, sea turtles, and the Tinian monarch on Tinian Island.<\/p>\n
\u201cFor both proposals, we are waiting on anticipated biological opinions by the National Marine Fisheries Service and U.S. Fish and Wildlife Service, as well as any \u2018Letters of Authorization\u2019 by the National Marine Fisheries Service concerning impacts to marine mammals. We will be carefully reviewing these documents when they are released to the public.\u201d<\/p>\n
\u201cWe are hopeful the Navy will realize that the environmental impacts of these proposed activities are too severe and should not move forward as currently proposed,\u201d the attorney said.<\/p>\n
Precedent<\/strong> NMFS is \u201ccooperating agency\u201d\u2014like the Federal Aviation Administration\u2014in approving of military plans.<\/p>\n In their 2013 comments, the Center said the Navy failed to analyze a proper no action alternative in consideration of expiring permits by USFW and NSFW.<\/p>\n \u201cThus, a true no action alternative would take into account the impending expiration of these permits and authorizations\u201d which would result in scaled back training and testing, the Center wrote, calling an assumption otherwise \u201carbitrary and capricious and violates NEPA.\u201d<\/p>\n To this, the Navy wrote in responses released this month that \u201cno action\u201d means \u201cno change\u201d from current activity. They were citing interpretation from the Council of Environmental Quality.<\/p>\n \u201cTherefore, the \u2018no action\u2019 alternative is continuing with the present course of action until the action is changed…\u201d the Navy said.<\/p>\n But in ruling on the same \u201cno action\u201d argument in the Hawaii case, Mollway found that NMFS could not assume the same take activities the Navy was proposing.<\/p>\n \u201cNMFS was neglecting to consider what would be a true \u2018no action\u2019 alternative from NMFS\u2019s perspective,\u201d she wrote.<\/p>\n \u201cThe Navy and NMFS appear to have recognized that a \u2018no action\u2019 alternative from NMFS\u2019s perspective might well have been the scenario in which\u2026NMFS denied the Navy\u2019s request for an incidental take authorization,\u201d Mollway writes.<\/p>\n Consider mitigation<\/strong> Based on modeling estimates of impulsive and non-impulsive source effects for all training and testing activities, the Navy requests to be allowed to inadvertently harass over 81,000 whales and dolphins a year.<\/p>\n They also request to accidentally injure 15 Pygmy sperm whales and 41 dwarf sperm whales a year.<\/p>\n The Center argues that alternatives must include \u201cappropriate mitigation measures\u201d and because of this, the Navy must include or at least consider geographic restrictions from sensitive areas. These restrictions were not made in their draft EIS.<\/p>\n \u201cBy failing to include any consideration of alternatives that impose such restrictions\u2026the Navy is failing to rigorously explore all reasonable alternatives,\u201d the Center wrote.<\/p>\n Gov. Eloy S. Inos himself proposed mitigation zones in his 2013 letter to the Navy.<\/p>\n The governor requested more baseline studies, better baseline study information, and marine mammal protection areas, and that certain training activities not be done around certain islands.<\/p>\n Inos\u2019 mitigation zones excluded sonar and explosives training and testing within certain distances from CNMI islands and West Mariana ridge.<\/p>\n But in their response this month, the Navy says they \u201ccannot impose geographic limitations on training and testing activities based on bathymetric features.\u201d<\/p>\n The Navy called this an \u201cimpractical burden with regard to implementation\u201d and \u201cunacceptable impact to the effectiveness\u201d of their training.<\/p>\n Mollway, though, dismissed similar reasons of impracticality, in the Hawaii case.<\/p>\n The kind of responses to \u201cspecific proposals in public comments was general and cursory, and assumed with little analysis that no restriction at all could be accommodated,\u201d she wrote.<\/p>\n Lawsuit<\/strong> The authorization was given for the Hawaii and Southern California testing several months after the release of final impact studies.<\/p>\n The final studies for Marianas study area will be published in the Federal Register tomorrow.<\/p>\n It\u2019s unclear right now if NMFS will adopt the Marianas findings with the Hawaii issue still in court. Request for comment from their regional office in Hawaii were not responded to as of press time.<\/p>\n It was gathered, though, that if NMFS does adopt the Navy\u2019s no action alternative, they are open to a lawsuit, and the same kind of lawsuit they lost in Hawaii.<\/p>\n","protected":false},"excerpt":{"rendered":" The U.S. Navy\u2019s findings for the Marianas Islands training and testing area are vulnerable to…<\/p>\n","protected":false},"author":47,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[94,4],"tags":[1503,259,3236,4772],"class_list":["post-202334","post","type-post","status-publish","format-standard","hentry","category-headlines","category-local-news","tag-eis","tag-lawsuit","tag-mitt","tag-nmfs"],"_links":{"self":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts\/202334","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/users\/47"}],"replies":[{"embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/comments?post=202334"}],"version-history":[{"count":0,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/posts\/202334\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/media?parent=202334"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/categories?post=202334"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.saipantribune.com\/index.php\/wp-json\/wp\/v2\/tags?post=202334"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nFink\u2019s comments on the MITT yesterday appear to echo arguments made in the Hawaii case, where environmental groups contend that NMFS has authorized takes through the Navy\u2019s perspective, not theirs.<\/p>\n
\nThe Center also argues that the Navy failed to consider alternatives that significantly reduce the predicted harm on marine environment in the Marianas.<\/p>\n
\nA letter of authorization for incidental take is pending with NMFS.<\/p>\n