Tinian Women Ass'n v. U.S. Dep't of the Navy

• Decision Date: 13 October 2017
• Docket Number: Case No.: 16-cv-00022
• Parties: TINIAN WOMEN ASSOCIATION, GUARDIANS OF GANI, PAGANWATCH, and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY, SPENCER SWORN, Secretary of the Navy, UNITED STATES DEPARTMENT OF DEFENSE, and JAMES MATTIS, Secretary of Defense, Defendants.
• Court: U.S. District Court — Northern Mariana Islands

TINIAN WOMEN ASSOCIATION,GUARDIANS OF GANI, PAGANWATCH,and CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY,SPENCER SWORN, Secretary of the Navy,UNITED STATES DEPARTMENT OF DEFENSE,and JAMES MATTIS, Secretary of Defense,¹ Defendants.

Case No.: 16-cv-00022

UNITED STATES DISTRICT COURT FOR THE NORTHERN MARIANA ISLANDS

October 13, 2017

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS COMPLAINT

I. INTRODUCTION

This case involves plaintiffs' challenge to a large-scale effort by the U.S. Department of the Navy and Department of Defense to relocate several thousand U.S. Marines from Okinawa to Guam. Plaintiffs maintain that this effort may not proceed until defendants comply with the statutory obligations imposed by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.Currently before the Court is defendants' motion to dismiss the complaint for lack of jurisdiction. (ECF No. 19.) The motion has been fully briefed,² and oral argument was heard on February 9, 2017.

For the reasons set forth below, defendants' motion is granted in part and denied in part.

II. BACKGROUND

The background provided below draws from the allegations and exhibits submitted by the parties, and the parties do not dispute the chronology of events that led to this lawsuit.

On October 29, 2005, the United States and Japan issued a document entitled "U.S.-Japan Alliance: Transformation and Realignment for the Future," which set forth their strategic objectives and plans to "adapt the alliance to the changing regional and global security environment." (Ex. 4, U.S.-Japan Alliance Doc., ECF. No. 20-4.) The objectives included expanding "training of [Japan Self-Defense Forces] and units in Guam, Alaska, Hawaii, and the U.S. mainland," and redistributing Marine Corps "among Hawaii, Guam, and Okinawa," such as by relocating the headquarters of the III Marine Expeditionary Force to Guam and transferring "approximately 7,000 Marine officers and enlisted personnel, plus dependents out of Okinawa." (Id. at 7, 11, 13.)

To finalize the initiatives and objectives set forth in the October 29, 2005 document, the United States and Japan issued the "United States-Japan Roadmap for Realignment Implementation" on May 1, 2006. (Ex. 1, U.S.-Japan Roadmap, ECF No. 20-1.) As part of a "coherent package," the realignment initiatives included relocation of approximately 8,600 III Marine Expeditionary Force("III MEF") personnel and their dependents from Okinawa to Guam, with Japan agreeing to provide $6.09 billion, including $2.8 billion in cash contributions, "to develop facilities and infrastructure on Guam to enable the III MEF relocation," and the United States providing the remaining funds. (Id. at 2-4.) The Roadmap further clarified that "the Okinawa-related realignment initiatives are interconnected," with the III MEF relocation dependent on "tangible progress toward completion of the [Futenma Replacement Facility ("FRF")]," and "Japan's financial contributions." (Id. at 5.)

After the United States and Japan agreed on these commitments, beginning in 2007 the U.S. Department of the Navy prepared a draft environmental impact statement ("EIS") on the impact of relocating 8,600 Marines and their dependents from Okinawa to Guam in a document titled, "Guam and CNMI Military Relocation, Relocating Marines from Okinawa, Visiting Carrier Berthing, and Army Air and Missile Defense Task Force" ("Guam and CNMI Relocation and Training EIS"). (Motion 18; Whelden Decl. ¶ 3, ECF No. 20-7.)

Approximately two years later, the United States and Japan formally memorialized these commitments in the February 17, 2009 "Agreement between the Government of the United States of America and the Government of Japan Concerning the Implementation of the Relocation of III Marine Expeditionary Force Personnel and their Dependents from Okinawa to Guam," which would legally bind the parties once it entered into force. (Ex. 2, 2009 Agreement, ECF No. 20-2.)

Following this agreement, the Department of the Navy released a final EIS, which assessed the impacts of relocating 8,600 Marines and their dependents from Okinawa to Guam. (Ex. F, 2010 Final EIS, Vol. 2 at 2; ECF No. 22-6.) The components of the relocation included "Main Cantonment, Training-Firing Range, Training-Ammunition Storage, and Training-NMS Access Road, Airfield andWaterfront." (Id. at 4.) Several alternative sites were assessed for each component except the airfield and waterfront. (Id.) The final EIS also assessed "the proposed development of live-fire training ranges to support training and operations that would occur on Tinian in the CNMI associated with the Marine Corps relocation to Guam." (Ex. C, 2010 Final EIS, Vol. 1, ECF No. 22-3.) In describing the scope of the EIS, the Navy wrote, "The proposed federal actions are subject to NEPA." (Id. at 3.) The Navy also concluded, "The U.S.-Japan (1960) treaty . . . is the most relevant to the proposed action" and "contains general provisions on the further development of international cooperation and on improved future economic cooperation," as well as obligations related to defense. (Ex. F, 2010 Final EIS, Vol. 2 at 3, ECF No. 22-6.)

Based on the final EIS, the Navy issued a Record of Decision ("ROD"), in which the agencies announced their "decision to proceed with Guam and Commonwealth of Northern Mariana Islands (CNMI) Military Relocation," and "decided to select all of the preferred alternatives described in Volumes 2, 3, and 6 of the FEIS and to implement all mitigation measures noted in this ROD." (Ex. D, 2010 R. of Decision 2, 5, ECF No. 22-4.) This included the decision to construct several live-fire training ranges on Tinian. (Id. at 6.) However, the Navy and Marine Corps deferred decision on several live-fire training sites on Guam. (Id. at 5-6.)

In February 2012, the Departments of the Navy and Defense issued a Notice of Intent to prepare a supplemental EIS to "evaluate the potential environmental consequences that may result from construction and operation of a live-fire training range complex and associated infrastructure on Guam." (Ex. E, Notice of Intent to Prepare Supplemental EIS 1, ECF No. 22-5.) Specifically, the scope of the supplemental EIS included five alternative sites for the live-fire training range complexon Guam, which the Navy had identified after deferring decision on a site for the training range in the 2010 Record of Decision. (Id. at 1-2.)

In April 2012, as the result of ongoing negotiations to implement the 2009 Agreement, the United States and Japan announced that they had agreed to "delink the relocation of the III Marine Expeditionary Force (MEF) personnel from Okinawa to Guam . . . from progress on the Futenma Replacement Facility" due to "the increasingly uncertain security environment in the Asia-Pacific region" and to "achieve the goals of the shared partnership." (Ex. 5, 2012 Jt. Stmt. 2, ECF No. 20-5.) The Governments agreed that "a total of approximately 9,000 Marines, along with their associated dependents, are to be relocated from Okinawa to locations outside of Japan," and the "authorized strength of U.S. Marine Corps forces in Guam is to be approximately 5,000 personnel." (Id. at 3.) "[T]o expedite the establishment of an operational U.S. Marine Corps presence in Guam, . . . the two governments reaffirmed that Japan's financial commitment is to be the direct cash contribution as stipulated in Article 1 of the 2009 Guam International Agreement." (Id. at 4.) Further, "to develop Guam as a strategic hub and mitigate the impact of the U.S. military presence on local communities, both governments plan to explore new efforts to promote bilateral dynamic defense cooperation," including "cooperation in developing training areas in Guam and the Commonwealth of the Northern Mariana Islands as shared-use facilities by U.S. forces and the JSDF." (Id.)

On October 11, 2012, the Department of the Navy issued a Notice of Intent to expand the scope of the ongoing supplemental EIS to reflect the April 2012 changes to the U.S.-Japan Agreement, stating that the adjustments included relocation of 5,000 Marines and their dependents instead of 8,600 Marines. (Ex. G, Notice of Intent to Prepare Supplemental EIS 1-2, ECF No. 22-7.) The expandedscope did not include the "relocation of the Marine Corps Aviation Combat Element facilities to [Anderson Air Force Base ("AAFB")], the development of the Northern Gate and access road at AAFB, the establishment of training ranges on Tinian, Apra Harbor wharf improvements, and the non-live-fire training ranges." (Id. at 2.) This was because "[t]hese actions will occur no matter where on Guam the main cantonment and family housing areas and live-fire-training range complex are situated," and the "potential environmental effects of these actions were fully and accurately considered and analyzed in the 2010 Final EIS." (Id.) Additionally, because the "number and size of the ranges comprising the live-fire training range complex [were] unaffected by the April 2012 adjustments to the Roadmap," they "will remain as described in the 2010 Final EIS." (Id.)

To formally amend the 2009 Agreement, the United States and Japan entered into a Protocol to the 2009 Agreement. The preamble was amended to strike the language stating that 8,000 III Marine Expeditionary Force personnel would be relocated to Guam, and to read instead "a total of approximately 9,000 personnel of III MEF, along with their dependents, are to be relocated from Okinawa to locations outside of Japan." (Ex. 6, Protocol at 2 (Art. 1), ECF No. 20-6.) Article 1 of the 2009 Agreement was amended to delete the reference to 8,000 III MEF personnel and instead to refer to "the III MEF personnel and their dependents." (Id. at 3.) Further, Articles 2 and 4 were amended to reference facilities and infrastructure in Guam and the CNMI instead of just Guam. (Id. at 4.)

During this same...