The U.S. military, and environmental and cultural groups opposed to the military’s buildup plans in the Commonwealth of the Northern Mariana Islands, filed briefs in the CNMI federal court on the military’s motion to dismiss the case.
As per Chief Judge Ramona Manglona’s instructions, both sides briefed the court on how a recent 9th Circuit Court of appeals ruling affects the pending lawsuit in the CNMI. The 9th Circuit ruled against the military in a legal challenge to the construction of the Futenma Replacement Facility and sent the case back to district court for further action.
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.
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.”
Among other things, the military has argued the CNMI lawsuit is premature because the proposed training activity in the Northern Marianas still is being analyzed for environmental impact, “and may never be approved at all.”
Manglona has stated the 9th Circuit decision could impact most or all of the military’s arguments to dismiss the CNMI lawsuit. That’s because the military in the CNMI case made some of the same motions to dismiss that the 9th Circuit rejected in the Futenma case.
The military’s argument
In its brief, the military stated the 9th Circuit ruling does not impact its motion to dismiss the CNMI case. The argument that the lawsuit would interfere with executive branch decision-making — the U.S. agreement with Japan — still stands, the military stated.
“Plaintiffs here seek an order requiring the United States to consider abandoning altogether a specific diplomatic commitment to Japan,” their brief states.
And since the federal court cannot order the Secretary of Defense and the Secretary of State to back out of the Japan commitments, the court is not in a position to grant the relief request by the plaintiffs, the brief states.
The military also argued the two cases are different — the Futenma case challenges the details for the implementation of a new air base, while the CNMI case challenges the fundamental basis of an international agreement with Japan.
The environmental groups, in their brief, stated the military once took the position that both cases were similar, but now that they have been dealt a legal setback in the Futenma case, the military is trying to argue they are different.
They also stated the military buildup is not strictly an agreement with Japan, noting the military plans to bring about 600 Marines to Guam from places other than Japan as part of the buildup.
They also stated they are not trying to invalidate the agreement between the U.S. and Japan, but want to ensure that legally required procedures are followed.
That is, they want the military to evaluate, in a single environmental impact statement, all of the impacts associated with Marines living and training the Mariana islands, including alternate locations that could be used with fewer environmental impacts.
Manglona scheduled a 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.