Defense, Navy seek reversal of court order

THE U.S. Department of Defense and the U.S. Department of Navy requested the federal court on Monday to reverse its Feb. 12, 2018 order that compels them to add four documents to the record in the lawsuit filed by four environmental groups.

The U.S. Department of Justice, representing the DOD secretary and the Navy secretary, asked the District Court for the NMI to deny the motion filed by the Women Association, Guardians of Gani, Pagan Watch and the Center for Biological Diversity.

The plaintiffs have sued DOD and the Navy over their decision to relocate U.S. Marines from Okinawa to Guam.

Joshua P. Wilson, DOJ Environmental & Natural Resources Division trial attorney, said the environmental groups asserted at the Feb. 23, 2018 hearing that they were not seeking the entire CNMI Joint Military Training record and that they were only seeking documents related to a supposed finding that the training on Tinian analyzed in the 2010 final environmental impact statement and approved in the 2010 record of decision would be inadequate to satisfy the requirements for Marines based on Guam.

Wilson said an order requiring the Navy to search for and compile documents within this category would likely require months of work to identify potential custodians, and collect and review documents for content and privilege.

Moreover, Wilson said, the groups should not be allowed under the auspices of a motion to complete the record to “launch a backdoor attack on the contents of a draft environmental impact statement for a separate non-final agency action that they persuaded the court they were not challenging.”

Wilson added, “Such a result would not only undermine the court’s ruling denying the U.S. motion to dismiss, but would produce an administrative record totally at odds with the law and unrecognizable to the record the Navy actually certified in connection with the Guam relocation.”

The process is tantamount to creating a new administrative record, he said.

Wilson also believes that the court’s Feb. 12 order “reflects legal error because it misapplies the standards applicable to the judicial review of administrative records under controlling law, and or misapplies those standards to the facts of the case.”

The environmental groups are represented by attorneys David L Henkin and Kimberlyn K. King-Hinds.

They have asked the court to order the Navy to immediately begin the process of identifying, compiling and reviewing the missing documents, so that the defendants would be in a position to meet the court’s March 14, 2018 deadline to complete the administrative record.

On Feb. 12, 2018, Federal Chief Judge Ramona V. Manglona granted the groups’ request to take judicial notice and motion to complete the administrative record certified to contain all documents directly or indirectly considered by the Navy in reaching a final environmental impact statement.

Judge Manglona directed the Navy to compete the administrative record within 30 days of the issued order.

Source: Marianas Variety :

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