Steve Limtiaco

Pacific Daily News

A federal judge said she will decide, within the next six weeks, whether to dismiss a lawsuit by environmental groups who want to halt the U.S. military’s buildup plans in the Commonwealth of the Northern Mariana Islands.

The July 2016 lawsuit, filed by Earthjustice on behalf of groups opposed to military training in the CNMI, asked the federal court to throw out the 2010 and 2015 records of decision for the buildup, which could stop the military's plans for Guam as well.

As many as 5,000 U.S. Marines will relocate from Okinawa to a new base to be built in Dededo.

The military plans to use some islands in the Commonwealth of the Northern Mariana Islands as well, primarily for training.

The Marine relocation is part of a bilateral agreement by the United States and Japan, and Japan is helping pay for the $8 billion move.

The Navy in August announced two significant milestones for the Guam portion of the military buildup — the awarding of a $164.89 million contract to construct infrastructure for the new Marine Corps base, and the awarding of a $78 million contract to begin constructing a new firing range complex for the Marines at Northwest Field, which is part of Andersen Air Force Base. The projects are in the record of decision for the buildup.

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The CNMI lawsuit states the U.S. Navy failed to evaluate the environmental impact of training on the islands of Tinian and Pagan and also failed to consider alternate locations outside the Mariana Islands, "where the Marines could accomplish their mission with fewer adverse impacts."

Communities on Tinian would be subjected to high-decibel noise, as well as restricted access to fishing grounds, cultural sites and recreational beaches, according to Earthjustice, which filed the lawsuit on behalf of: the Tinian Women Association; Guardians of Gani, a nonprofit established to protect "Gani," which refers to the Mariana Islands north of Saipan; PaganWatch; and the Center for Biological Diversity.

Pagan would be the target of ship-to-shore naval bombardment as part of the training, which would destroy native forests and coral reefs, according to Earthjustice.

The military has asked the court to dismiss the case, citing four different reasons: the request to slow or stop the relocation is barred by the political question doctrine; the plaintiffs lack standing to bring the case to court because the court cannot act to redress their alleged injuries; there is no jurisdiction because the claims do not challenge any final agency action; and the United States has not waived sovereign immunity over the plaintiffs’ claims, which are premature.

"The decision to relocate the Marines from Okinawa to Guam is a 'political decision already made' by the United States Secretaries of State and Defense through a 2006 commitment to the Government of Japan, and a binding international agreement signed by the United States Secretary of State and Japan's Foreign Minister in 2009," the military's response states, noting a court never has ordered the executive branch to do something related to a binding international agreement.

The reply states the plaintiffs in the case cannot demand that the Navy "reconsider the fundamental strategic and diplomatic premise of the United States' international agreement with Japan."

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The military also stated it is premature to challenge the proposed training activity in the Northern Marianas since it still is being analyzed for environmental impact, "and may never be approved at all."

But Chief Judge Ramona Manglona, during a status hearing Aug. 25, said the military’s arguments to dismiss the lawsuit likely have been affected by a 9th U.S. Circuit Court of Appeals decision, issued Aug. 21.

In that 9th circuit case, judges rejected arguments the military put forward to dismiss a lawsuit related to the impact of the Futenma Replacement Facility on the dugong, a type of sea cow indigenous to the area. The military, in the Okinawa case, cited some of the same arguments in its request to dismiss the CNMI case.

Among other things, the appeals court judges rejected the military’s claim that it was a “political question” and sent the Okinawa airfield case back to the district court for further action.

Manglona called the 9th circuit case a “significant decision” that possibly could impact all of the military’s motions to dismiss the CNMI lawsuit, and instructed attorneys to file supplemental briefs by Sept. 8, discussing the 9th circuit decision.

Manglona scheduled another status conference in the case for 8:30 a.m. Oct. 19, and said she expects to issue a decision on the motion to dismiss before then.

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