TINIAN WOMEN ASSOCIATION; GUARDIANS OF GANI; PAGANWATCH; CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE NAVY; RAY MABUS, Secretary of the Navy; UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DEPARTMENT OF DEFENSE; PATRICK SHANAHAN, Acting United States Secretary of Defense, Defendants-Appellees.
No. 18-16723
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 18, 2020
D.C. No. 1:16-cv-00022
Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted February 3, 2020 Honolulu, Hawaii
Filed September 18, 2020
Before: M. Margaret McKeown, Andrew D. Hurwitz,* and Bridget S. Bade, Circuit Judges.
Opinion by Judge McKeown
SUMMARY**
Environmental Law / Standing
In an action challenging the U.S.-Japan Alliance Agreement, concerning the relocation of troops from Okinawa, Japan to Guam, and the mandated environmental reviews, the panel: (1) affirmed the district court‘s summary judgment in favor of the U.S. Department of the Navy on plaintiffs’ procedural claim under the National Environmental Policy Act (“NEPA“); and (2) affirmed the dismissal, but for lack of standing, rather than on the basis of political question, of plaintiffs’ claim that the Navy failed to consider relocation alternatives beyond Guam and the Commonwealth of the Northern Mariana Islands (“CNMI“).
Plaintiffs alleged two procedural claims under NEPA with respect to the Navy‘s decision to relocate troops to Guam and to construct training facilities on the CNMI. First, plaintiffs argued that the two decisions were “connected actions” that must be assessed in a single environmental impact statement (“EIS“). Second, plaintiffs argued that “cumulative impacts” must be addressed in the Relocation EIS. The panel affirmed the district court‘s rejection of these claims.
First, the panel held that the Marines’ relocation and the placing of training facilities on Tinian Island in the CNMI were not connected for the purposes of an EIS. Although the two actions have overlapping goals, where Marines on Guam will certainly take advantage of the training ranges and facilities in the CNMI, they also have independent utility.
Second, the panel held that the Navy‘s deferral of consideration of the cumulative impacts to a future EIS was not error. By issuing a notice of intent to prepare an EIS for the training and ranges in the CNMI, the Navy has impliedly promised to consider the cumulative effects of the subsequent action in the future EIS and the Navy should be held to that promise.
The panel held that plaintiffs’ remaining claim – that the Navy failed to consider stationing alternatives beyond Guam and the CNMI for Marines relocating out of Okinawa – also failed. Specifically, the panel held that plaintiffs’ claim was not redressable by the judicial branch and must be dismissed for lack of standing. Plaintiffs correctly identified the right to a procedurally-sound EIS that serves as a safeguard to its numerous interests on Guam and the CNMI; but plaintiffs did not – and could not – show that this right, if exercised, could protect its concrete interests, because doing so would require the panel to order the Navy to modify or set aside the Agreement between the United States and Japan.
Finally, the panel held that the district court did not err in concluding that plaintiffs waived a third claim – that defendants failed to supplement the Relocation Final EIS.
COUNSEL
David L. Henkin (argued), Earthjustice, Honolulu, Hawaii, for Plaintiffs-Appellants.
Thekla Hansen-Young (argued), Andrew C. Mergen, Joshua Wilson, and Taylor Ferrell, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey Bossert Clark, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice; Craig D. Jensen, Associate General Counsel (Litigation); Cara M. Johnson, Attorney;
OPINION
McKEOWN, Circuit Judge:
This case surfaces in the wake of the Navy‘s decision to relocate troops from Okinawa, Japan to Guam, pursuant to treaty obligations with Japan. In October 2005, the United States and Japan signed the U.S.-Japan Alliance Agreement (the “Agreement“) to “adapt [their] alliance to the changing regional and global security environment,” resulting in the determination to move Marine troops from Okinawa to Guam. The Agreement was followed by a series of mandated environmental reviews, challenged here by the Tinian Women Association and other environmental groups (collectively, “TWA“). The district court properly granted summary judgment in favor of the Navy on TWA‘s procedural claim under the National Environmental Policy Act (“NEPA“) because the Navy‘s action was not arbitrary, capricious, or otherwise an abuse of discretion. The district court dismissed as a political question TWA‘s claim that the Navy failed to consider relocation alternatives beyond Guam and the Commonwealth of the Northern Mariana Islands (“CNMI“). We affirm that dismissal, but for lack of standing, concluding that the claim is not redressable because it would require renegotiation of the treaty.
BACKGROUND
The U.S.-Japan Alliance Agreement. The Agreement aims to strengthen the countries’ long-standing security alliance by realigning American forces in Japan to reduce “burdens on local communities, including those in Okinawa.” Consequently, the United States agreed to relocate approximately 8,000 Marines—including relocating the headquarters of the III Marine Expeditionary Force to Guam, with Japan providing more than $6 billion in funding.1 The two countries also planned to expand bilateral training throughout Japan and the Pacific. The United States and Japan memorialized these commitments in a February 2009 treaty that specifically provides that the “Government of the United States of America shall consult with the Government of Japan in the event that the Government of the United States of America considers changes that may significantly affect facilities and infrastructure funded by Japanese cash contributions.”
In preparation for relocation of the Marines forces, the Navy established the Joint Guam Program Office (“JGPO“) to “facilitate, manage, and execute requirements associated with the rebasing of Marine Corps assets from Okinawa to Guam.” Meanwhile, the Department of the Navy instructed the Marines to identify operational and training requirements for the relocating troops, both on Guam and the CNMI.
Environmental Impact Statements. Before moving forward with projects that can significantly alter the environment, federal agencies are obligated to produce an environmental impact statement (“EIS“). With
Internal debate about the scope of the relocation roiled, as the Marine Corps and the United States Pacific Command consistently emphasized that individual and small unit training facilities were inadequate for the Marines to meet training requirements. But the JGPO believed that larger scale combined-level training was “beyond the scope of what [it] [wa]s required to build for the relocating forces,” and declined to plan for such training unless it would not materially impact the environmental review process.
The Secretary of the Navy resolved the clash in 2009. He acknowledged that “[t]he current scope of the [Relocation] EIS is unacceptable, does not meet USMC requirements, and potentially jeopardizes USMC Core Competencies in the Pacific.” But the Secretary ultimately concluded that the Marines’ proposal to establish expanded training capabilities in the region required a “holistic assessment” of troop levels that should not be undertaken “in a series of ‘knee-jerk’ decisions that may not necessarily be tied together or complementary with long term U.S. strategy.”
The Navy issued the Relocation EIS in July 2010, which addressed the relocation of approximately 8,000 Marines to Guam, including the development and construction of training facilities on Guam and Tinian, one of the three principal islands of the CNMI. The EIS analyzed several proposed training facilities, including one live-fire training range complex on Guam, and four training ranges on Tinian. The five ranges met individual and small unit training needs, “replicat[ing] existing individual-skills training capabilities on Okinawa.” Because the ranges “[did] not provide for all requisite collective, combined arms, live, and maneuver training,” the relocated Marines would need to travel to “sustain core competencies.” Noting that the Marine Corps ultimately hoped to conduct integrated core competency training, the EIS explained that such a decision, along with the “suitability of CNMI to meet” this need, would be reviewed in 2010 during the Quadrennial Defense Review.
Two months later, the Navy published its 2010 Record of Decision declaring its intent to proceed with the relocation to Guam and associated training on Tinian. The Navy deferred its decision to construct the live-fire training facility on Guam until it completed analysis under the National Historic Preservation Act.
In February 2012, the Navy issued an additional Notice of Intent for a supplemental EIS (“Relocation SEIS“) 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.” The Relocation SEIS was to address five alternative sites for the live-fire training range complex on Guam, though its scope was modified in October 2012 to accommodate a reduction in the number of Marines relocating to Guam. In 2015, the Navy issued a Record of Decision for the Relocation SEIS that approved the construction of a live-fire training range complex on Guam at a different location.
While the Navy analyzed new challenges to the Guam relocation, it published yet another Notice of Intent, the CNMI Joint Military Training Environmental Impact Statement/Overseas Environmental Impact Statement (“CJMT Draft EIS“). The
Challenges to the Records of Decision (“ROD“). TWA filed suit to challenge two final agency actions: the Relocation EIS, memorialized in the 2010 ROD, and the Relocation SEIS, memorialized in the 2015 ROD. Seeking declaratory and injunctive relief, TWA alleged the Navy violated NEPA and the Administrative Procedure Act (“APA“) by failing to consider (1) the impact of all mission essential training for Guam-based Marines and (2) stationing alternatives beyond Guam and the CNMI. The district court granted summary judgment on the first claim in favor of the Navy and dismissed TWA‘s second claim. The court also concluded that the group waived a third claim challenging the Relocation EIS, and denied leave to amend.
ANALYSIS
I. TWA‘s Procedural Claims Under NEPA
TWA launched a two-pronged attack on the Navy‘s decision to relocate troops to Guam and construct training facilities on the CNMI. First, it argues the two decisions are “connected actions” that must be assessed in a single EIS. See
We review de novo the district court‘s grant of summary judgment. See Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010). We must uphold the agency‘s action “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‘” Id. (quoting
TWA is correct that connected actions must be considered in a single EIS. Actions are connected if they “[a]utomatically trigger other actions which may require environmental impact statements,” “[c]annot or will not proceed unless other actions are taken previously or simultaneously,” or “[a]re independent parts of a larger action and depend on the larger action for their justification.”
We conclude that the Marine relocation and the placing of training facilities on Tinian are not connected for the purposes of an environmental impact statement. The Relocation EIS lays out multiple reasons for the relocation of Marines from Okinawa to Guam: positioning troops to defend the United States and its Pacific territories, providing a powerful presence in the Pacific region, fulfilling a commitment to Japan, and defending American, Japanese, and other allies’ interests. Meanwhile, the CJMT Draft EIS explains the rationale for placing range and training facilities on Tinian and Pagan: they would “reduce joint training deficiencies for military services” and be able to “support ongoing operational requirements, changes to U.S. force structure, geographic repositioning of forces, and U.S. training relationships with allied nations.”
Although the two actions have overlapping goals—Marines on Guam will certainly take advantage of the training ranges and facilities in the CNMI—they also have independent utility. As the district court noted, “the national security and defense goals of the Guam relocation and CJMT proposals are ‘overlapping,’ but they are not ‘co-extensive.‘” See Pac. Coast Fed‘n of Fishermen‘s Ass‘ns, 693 F.3d at 1098. Nor can we conclude that it would be arbitrary or irrational for the Marines to relocate to Guam and receive part of their required training elsewhere—especially given the current nature of the Marines’ training in Okinawa. While it may be more convenient for the Marines to have these training facilities closer, there is no evidence showing they must be.
TWA also argues the Navy violated NEPA‘s mandate that an EIS must consider cumulative impacts. A “cumulative impact” is “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.”
The district court found TWA met this low burden, but rather than forcing the Navy “to reopen the environmental impact statements related to the relocation efforts,” the district court reasonably concluded that the Navy “may address any cumulative impacts in the environmental impact statement for the proposed range and training areas on Tinian and Pagan in [the CJMT Draft EIS].” TWA argues this deferral to a future EIS was in error. We disagree.
II. TWA‘s Claim re Alternatives Beyond Guam and the CNMI
TWA‘s remaining claim—that the Navy failed to consider stationing alternatives beyond Guam and the CNMI for Marines relocating out of Okinawa—also fails. Relying on both constitutional standing and the political question doctrine, the district court dismissed this claim for a lack of jurisdiction. Reviewing de novo, we affirm. Corrie v. Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir. 2007).
Because we resolve this claim on the basis of standing, we need not reach the political question doctrine. See No GWEN All. of Lane Cnty., Inc. v. Aldridge, 855 F.2d 1380, 1382 (9th Cir. 1988) (“When both standing and political question issues are before the court, the court should determine the question of standing first.“). We note, however, that there is significant overlap between the principles underpinning the redressability prong of our standing inquiry and the overarching purpose of the political question doctrine. See Republic of Marshall Islands v. United States, 865 F.3d 1187, 1192 (9th Cir. 2017) (“Whether examined under ... the redressability prong of standing, or the political question doctrine, the analysis stems from the same separation-of-powers principle—enforcement of this treaty provision is not committed to the judicial branch. Although these are distinct doctrines ... there is significant overlap.“).
Article III standing demands that TWA establish: (1) it has suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
TWA asserts various “cultural, social, economic, recreational, spiritual, education, and other interests” on Guam and the CNMI that will be adversely affected by the Marines relocation to those areas. The
TWA‘s successful showing of a procedural injury lightens its burden on the remaining Article III standing requirements. See Lujan, 504 U.S. at 572 n.7 (The “person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.“). As a plaintiff alleging procedural injury, TWA “need[s] to show only that the relief requested—that the agency follow the correct procedures—may influence the agency‘s ultimate decision of whether to take or refrain from taking a certain action.” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1226–27 (9th Cir. 2008). But even under this more lenient standard, TWA is unable to meet its burden.
TWA correctly identifies its right to a procedurally-sound EIS that serves as a safeguard to its numerous interests on Guam and the CNMI. But it does not—and cannot—show that this right, if exercised, could protect its concrete interests, because doing so would require us to order the Navy to modify or set aside the Agreement between the United States and Japan. Regardless of the Navy‘s analysis of alternate stationing locations for the Marines, it cannot upend that agreement. Accordingly, we cannot grant relief to TWA without upsetting the agreement to relocate troops from Okinawa to Guam. Compare Ctr. for Biological Diversity v. Mattis, 868 F.3d 803, 819 (9th Cir. 2017) (concluding environmental group‘s claims that Navy should consider modifying base replacement plan were “forward-looking” and did not “hinge on upsetting” bilateral agreement with Japan), with Salmon Spawning, 545 F.3d at 1227 (“[I]f a court were to give the groups the remedy that they seek ... the ultimate agency decision of whether to enter into the Treaty ... could never be influenced.“).
TWA‘s argument is predicated on the belief that its proposed relief would not discharge the treaty itself, but rather would alter the United States’ actions within the treaty‘s bounds. Although the agreement between the United States and Japan has been amended in the past to decrease the number of troops relocated to Guam, the resolution TWA seeks would stretch the agreement beyond recognition. The treaty provides that the Marines “and their approximately 9,000 dependents will relocate from Okinawa to Guam.” Granting the relief TWA seeks would necessarily rescind the decision to relocate the troops to Guam, resulting in an order to the executive branch to rescind or modify the agreement. Indeed, even the amended agreement maintains the relocation of thousands of Marines from Okinawa to Guam. As in Salmon Spawning, even if the Navy‘s action was procedurally flawed, “a court could not set aside the next, and more significant, link in the chain—the United States’ entrance into the Treaty.” 545 F.3d at 1227. TWA‘s second claim is not redressable by the judicial branch and must be dismissed for lack of standing.
III. Failure to Supplement Claim
Finally, the parties dispute whether the TWA waived a third claim—that “[d]efendants
Where a “complaint does not include the necessary factual allegations to state a claim, raising such a claim in a summary judgment motion is insufficient to present the claim to the district court.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (en banc). The district court did not err in concluding that TWA waived this claim. Potentially relevant facts and regulations are scattered in different parts of the complaint, and a district court‘s job is not to piece together a jigsaw puzzle of claims. The ultimate proof is in the pudding: in the delineation of claims for relief at the end of the complaint, TWA lists only two—neither of which is a failure to supplement the Relocation Final EIS.
Because TWA explicitly raised the failure to supplement claim for the first time in summary judgment briefing, more than two years after the litigation commenced and six months after the administrative record was filed, and because it gave no prior notice to the Navy and requested leave to amend only after moving for summary judgment, the district court did not abuse its discretion in denying TWA‘s request for leave to amend. See William Inglis & Sons Baking Co. v. ITT Cont‘l Baking Co., 668 F.2d 1014, 1053 (9th Cir. 1981) (holding that notice is an important factor in considering whether a late shift in the thrust of the case prejudices the other party).
AFFIRMED.