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    Sunday, October 20, 2019-8:55:34A.M.






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Earthjustice attorney files opening brief with Ninth Circuit

LAST week, Earthjustice attorney David Henkin filed an opening brief with the Ninth Circuit Court of Appeals in California, completing a crucial step toward appealing the decision in Tinian Women Association et al v. United States Department of the Navy et al. — NMI District Court Chief Judge Ramona V. Manglona ruled in favor of the Navy and the Department of Defense last summer.

“If thousands of Marines are stationed on Guam, life in the neighboring Commonwealth of the Northern Mariana Islands…will be forever changed,” reads the brief’s introduction. “Mortar and artillery bombardment will blanket the northern two-thirds of Tinian, shattering the island’s peace. Amphibious landing craft will invade its beaches, destroying precious corals. Much of the year, Tinian residents will be cut off from irreplaceable cultural sites, subsistence gathering and recreational beaches, profoundly degrading their quality of life. Families with ancestral ties to Pågan will be forever barred from resettling, with the northern part of the island converted into a target for shells, bombs, and rockets.”

David Henkin

In August, Henkin represented the Tinian Women Association, Guardians of Gani’, PåganWatch and Center for Biological Diversity in NMI District Court, arguing that when the Navy decided to move 5,000 Marines from Okinawa to Guam, it knew that the Marines would require training facilities in the CNMI but failed to mention the environmental impacts of those facilities in their Guam Relocation Environmental Impact Statement.

In so doing, Henkin accused the Navy of violating the National Environmental Policy Act, a law set in place to ensure that federal agencies don’t take executive actions in an area without first addressing and making public the expected consequences of those actions on the human and natural environment. Henkin claims that the Navy published its intent to relocate the 5,000 Marines “without considering in the environmental impact statements (‘EISs’) it prepared for the relocation (1) the devastating impacts of mission-essential training in CNMI those Marines will need to conduct and (2) alternate stationing locations ‘which would avoid or minimize adverse impacts.’”

He cited documents in the Navy’s extensive administrative record in which the “Marines objected strenuously to the EIS’s cramped scope, which ‘does not address Marine Corps training requirements associated with the Agreed Implementation Plan.’”

“After cataloguing the numerous, mission-essential training requirements that were being excluded, the Marines warned: “To not study ‘connected’ action or actions is ‘unlawful segmentation.’”

Henkin asserted that the Navy excluded the CNMI ranges from the Guam Relocation EIS “[t]o keep the ROD [Record of Decision] on schedule,” and illegally split the EIS’s into categories based on what was most convenient for the Navy.

In his opening brief, Henkin addressed what he believed to be the Navy’s failure to properly consider other locations outside the Marianas to which the Marines could relocate from Okinawa — this line of argument was originally struck down by Judge Manglona on the basis that the Navy’s decision was a diplomatic and political matter outside the court’s jurisdiction. Henkin calls this stance “erroneous.”

“In dismissing Plaintiffs’ claim the Navy violated its duty to consider stationing alternatives, the district court mistook a ‘political case’ for a ‘political question,’” he writes.  “The court failed to pay heed to binding precedent that judicial review of the Navy’s compliance with statutorily mandated procedures, like those NEPA imposes, does ‘not pass judgment on the wisdom of the Executive’s ultimate foreign policy or military decisions...’ Rather, such review simply requires the judiciary to carry out its constitutional duty ’to say what the law is.’”

“This Court should also reverse the district court’s summary judgment order, which sanctioned the Navy’s failure to evaluate — before giving the green light for thousands of Marines to relocate to Guam — the full range of highly destructive Case,” Henkin continues.  “The record is clear that this training must occur on Tinian and Pågan, with the Navy’s own analysis rejecting as ‘cost prohibitive, inefficient, time consuming, and logistically complicated’ transporting Guam-based Marines farther afield to conduct essential training.”

“Finally, even if MAGTF training in CNMI were not ‘connected’ to the relocation, the Navy still was obliged to take a ‘hard look’ at the cumulative impacts of ‘reasonably foreseeable’ future training on Tinian and Pågan,” he writes. “The district court correctly found the Navy failed to do so, but gave Defendants a pass, erroneously concluding the Navy may lawfully defer its cumulative impact analysis to the CJMT EIS, which will not be completed until years after the Navy moves forward with implementing its decision to station Marines on Guam. This Court should reverse the district court’s ruling, which ignores well-settled, binding precedent that ‘[i]t is not appropriate to defer consideration of cumulative impacts to a future date when meaningful consideration can be given now.’”

The Navy and DoD have 30 days to file a reply brief, with the option of asking for an extension. Then Henkin will file a final answering brief, at which point both sides set a date to argue in court before a panel of three judges selected from the 9th circuit. As a whole, the appellate process can take up to 18 months.