Marianas Variety

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    Tuesday, December 11, 2018-11:36:43A.M.

     

     

     

     

     

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‘We’re going to do our best to hold the Navy accountable’

LATE August saw the result of two years of litigation between local Marianas activists and the U.S. Navy and Department of Defense over whether the Navy violated the National Environmental Policy Act when they presented their Guam Relocation and CNMI Joint Military Training programs; Chief Judge Ramona Manglona of the District Court of the Northern Mariana Islands ruled in favor of the Navy.

On Wednesday, Tinian-based attorney Kimberly King-Hinds and Earthjustice attorney David Henkin filed to appeal the case to the 9th Circuit of Appeals.

David Henkin

“We filled a notice of appeal — that’s what you need to do if you want the 9th Circuit to review what the district court did,” said Henkin. “And we do, so we did.”

“You don’t need to identify exactly which points of objection you are going to pursue in the appeal,” he explained. “That comes about in the opening brief. We just got an order from the 9th Circuit setting the briefing schedule so our opening brief is set for December 21st.” 

Henkin says that filing for an appeal could allow the plaintiffs to expand on their argument that the Navy violated NEPA.

“This is our opportunity to have the court of appeals review not only the latest decision but the threshold decision that the court made to only consider one of our two claims,” he said. “At the outset of the lawsuit, the Navy brought a motion to dismiss the whole case claiming that it involved political questions that were not suitable for the court to resolve and the court granted half of their motion, so it dismissed our claim that the Navy should have looked at alternative locations for stationing and/or training the Marines that were moving out of Okinawa.”

“This is our first opportunity to have the court of appeals review that as well as review the latest order that the court made having to do with whether the environmental impact statement should have looked at the impacts of everything the Guam based Marines would need,” he continued. “Anything else that fed into this decision is fair game for the appeal and we’ll try and winnow that down to what we think is most important for the court to look at.”

“We’re going to do our best in court to hold the Navy accountable and ensure that they do an honest accounting of what the impacts of what they’ve proposed truly are as well as other ways that they could perform their mission that may involve sparing the Marianas much if not all of this stationing and training,” he added.

The Navy has already demonstrated that it can and will adjust its relocation when faced with new information about the environmental impacts of its proposal.

“As they demonstrated in 2013, when they changed the roadmap for realignment, you can fulfil the mission of defending U.S. interests and our allies’ interests in the Pacific without having all of these Marines stationed in the Marianas,” Henkin explained. “Originally, it was going to be almost 9000. Now it’s down to 5000. We think the law requires them to consider other permutations that would have further reduced the impacts on the Marianas, which is very ill-suited for supporting this type of activity.”

Henkin said that which exact factors he and King-Hinds will bring to the court’s attention will be revealed at the briefing. For now, they’re busy making sure that the court has all the necessary transcripts and information to review the case.

Once the briefing happens, the government will have an opportunity to present their opposition and the plaintiffs will have the opportunity to respond. Henkin said the entire procedure could take anywhere from six months to a year.

“The appellate process takes a little bit of time,” he said. But in the meantime, the Navy is free to move forward with its relocation plans and has already begun to level forests on Guam. The Marines themselves aren’t scheduled to arrive for several years.

“We’re not happy about that,” said Henkin. “We would have preferred that the district court see things our way, but that’s not how it went.”

But Henkin isn’t discouraged.

“I’ve been doing this for 23 years,” he told Variety. “It’s not often that I’ve had to go to the court of appeals but I’ve had to do that in the past — I think we’ve talked about litigation against the army over the location of a striker brigade in Hawaii — we lost on the district court level and then had to take it up on appeal and the court of appeals saw things our way. So we’re hopeful that we’ll have a similar outcome here.”

But even if the plaintiffs win on appeal, the battle to save the Northern Islands will not be over.

“If we can hold the Navy accountable to disclose all the information, they could still make a bad choice. So it’s really up to everyone who’s concerned about the future of the Northern Marianas to do what they can do to get a different outcome,” Henkin said. “Ultimately this is going to be a political decision, so folks in the Marianas should not sit idly by while this winds its way through the court of appeals. They should continue to stand up and oppose something that they know is wrong for them and wrong for their future and their children’s future.”