case 1:10-cv-00677-lek -rlp document 84 filed 11/18/11

Nicholas C. Yost (CA Bar No. 35297) (pro hac vice) Matthew G. Adams (CA Bar No. 229021) (pro hac vice) SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415-882-5000 Facsimile: 415-882-0300 Email: [email protected] [email protected] Carl C. Christensen (Bar No. 005294) 1612 Kamole Street Honolulu, Hawaii 96821 Telephone: 808-373-3457 Email: [email protected]

Attorneys for Plaintiffs Guam Preservation Trust, National Trust for Historic Preservation, We Are Guåhan, Joseph E. Quinata, Dr. Marilyn Salas, Julian Aguon and Jillette Leon-Guerrero

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

GUAM PRESERVATION TRUST; NATIONAL TRUST FOR HISTORIC PRESERVATION; WE ARE GUÅHAN; JOSEPH E. QUINATA; DR. MARILYN SALAS; JULIAN AGUON; and JILLETTE LEON-GUERRERO Plaintiffs, v.

KATHERINE GREGORY, Naval Facilities Engineering Command, Pacific; KYLE

No. 1:10-CV-00677-LEK-RLP PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS COMPLAINT Date: December 12, 2011 Time: 9:45 a.m. Court: AHA Nonoi Judge: Hon. Leslie E. Koybayashi

Case 1:10-cv-00677-LEK -RLP Document 84 Filed 11/18/11 of 41 PageID #: 1200

FUJIMOTO, Naval Facilities Engineering Command, Pacific; DAVID BICE, Executive Director, Joint Guam Program Office; JACQUELINE PFANNENSTIEL, Assistant Secretary of the Navy For Energy, Installations, and Environment; RAY MABUS, Secretary of the Navy; ROBERT GATES, Secretary of Defense; NAVAL FACILITIES ENGINEERING COMMAND, PACIFIC; JOINT GUAM PROGRAM OFFICE; DEPARTMENT OF THE NAVY; and DEPARTMENT OF DEFENSE Defendants.


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TABLE OF CONTENTS

Page(s) PREFACE ..................................................................................................................1

INTRODUCTION .....................................................................................................4

A. A Brief Chronology ..................................................................................6

B. What is at Stake - The Cultural Significance of Pågat .............................8

ARGUMENT ...........................................................................................................18

I. There Has Been “Final Agency Action” And Anything The Navy Did or Does Now Post ROD Is A “Post Hoc Rationalization” .......................................18

A. There Clearly Is Final Agency Action On The Part Of Defendants .....19

1. Execution of the Record of Decision was Final Agency Action Under Both the Applicable Regulations and Case Law. ..........................................19

2. Factually, the Record of Decision is Clear on Its Face That it Represents Final Agency Action to Site the Firing Ranges at Pågat. ...........20

3. Also Factually, the Navy’s Explanation of Its Decision to the Public Made Clear That the Pågat/Route 15 Area Was Chosen As the Site to Build the Firing Ranges. ................................................................................22

4. By Way of Contrast to the Decision to Site the Firing Ranges in the Pågat/Route 15 Area, Defendants Were Quite Clear in Deferring Decisions with Respect to the Navy’s Carrier Berthing and the Army’s Air Defense Systems......................................................................................23

5. The Navy Cannot Undo Its Final Agency Action with Post Hoc Rationalizations .............................................................................................24

B. Defendants Cannot Rely on Post Hoc Rationalizations to Unrecord the Decision Reached in the Record of Decision ............................................25

II. Defendants’ Other Arguments for Dismissal Are Equally Unavailing .....27

A. Defendants’ Argument on Ripeness Is Misplaced .................................27


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B. There is No Occasion for the Court to Exercise Its Discretion to Dismiss Because Plaintiffs Would Be Injured Now if Defendants Were Successful in Dismissing This Lawsuit ...........................................................29

CONCLUSION........................................................................................................32

CERTIFICATE OF COMPLIANCE......................................................................... I

CERTIFICATE OF SERVICE .................................................................................II


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TABLE OF AUTHORITIES

Page(s) FEDERAL CASES

‘Ilio’ulaokalani Coalition v. Rumsfeld 464 F.3d 1083 (9th Cir. 2006) ..............................................................................5

Bennett v. Spear 520 U.S. 154 (1997)............................................................................................20

Citizens for Better Forestry v. U.S. Department of Agriculture 341 F.3d 961 (9th Cir. 2003) ..............................................................................28

Citizens to Preserve Overton Park, Inc. v. Volpe 401 U.S. 402 (1971)......................................................................................18, 26

City of Brookings Municipal Telephone Company v. Federal Communications Commission 822 F.2d 1153 (D.C. Cir. 1987)..........................................................................26

Dubois v. United States Department of Agriculture 102 F.3d 1273 (1st Cir. 1996).............................................................................26

Dugong v. Gates 543 F.Supp.2d 1082 (N.D. Cal. 2008)................................................................29

Gifford Pinchot Task Force v. United States Fish & Wildlife Service 378 F.3d 1059 (9th Cir. 2004) ............................................................................26

Goodrich v. United States 434 F.3d 1329 (Fed. Cir. 2006) ..........................................................................19

Hawaii County Green Party v. Clinton 124 F.Supp.2d 1173 (D. Hawaii 2000)...............................................................29

Humane Society of the United States v. Locke 626 F.3d 1040 (9th Cir. 2010) ............................................................................26

Jersey Heights Neighborhood Association v. Glendening 174 F.3d 180 (4th Cir. 1999) ..............................................................................19

Kern v. BLM 284 F.3d 1062 (9th Cir. 2002) ............................................................................28


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Laub v. U.S. Dept. of the Interior 342 F.3d 1080 (9th Cir. 2003) ............................................................................28

New Mexico ex rel Richardson v. Bureau of Land Management 565 F.3d 683 (10th Cir. 2009) ............................................................................26

Nulankeyutmonen Nkihtaqmikon v. Impson 503 F.3d 18 (1st Cir. 2007).................................................................................29

Ohio Forestry Ass’n, Inc. v. Sierra Club 523 US 726 (1998)..............................................................................................27

Ohio Forestry Association, Inc. v. Sierra Club 523 U.S. 726 (1998)................................................................................25, 28, 31

Oregon Natural Desert Association v. Bureau of Land Management 625 F.3d 1092 (9th Cir. 2010) ............................................................................19

Ouachita Watch League v. Jacobs 463 F.3d 1163 (11th Cir. 2006) ..........................................................................19

See: Jones v. District of Columbia Redev. Land Agency 499 F.2d 502 (D.C. Cir. 1974), cert. denied, 423 US 937 (1975) ................30, 31

Sierra Club v. Nuclear Regulatory Commission 825 F.2d 1356 (9th Cir. 1987) ............................................................................29

Sierra Club v. U.S. Army Corps of Engineers 772 F.2d 1043 (2nd Cir. 1985) .....................................................................24, 26

Sierra Forest Legacy v. Sherman 646 F.3d 1161 (9th Cir. 2011) ............................................................................28

State of Louisiana v. Lee 635 F. Supp 1107 (E.D. La. 1986)......................................................................26

Western Watersheds Project v. Kraayenbrink 620 F.3d 1187 (9th Cir. 2010) ............................................................................31

Western Watersheds Project v. Kraayenbrink 632 F.3d 472 (9th Cir. 2011) ..............................................................................26

Western Watersheds Project v. Rosenkrance 2011 U.S. Dist. LEXIS 1288 (D. Idaho, 2011) ..................................................27


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FEDERAL STATUTES

16 USC § 470f............................................................................................................6

OTHER AUTHORITIES

32 CFR § 775.6(a)....................................................................................................19

36 CFR § 800.1(c)......................................................................................................6

36 CFR § 800.8(a)(3) .................................................................................................6

36 CFR § 800.8(c)(5) .................................................................................................6

40 CFR § 1502.9(a)..................................................................................................29

40 CFR § 1502.9(b) .................................................................................................29

40 CFR § 1505.2 ......................................................................................................29

40 CFR § 1505.2(a)..................................................................................................19

40 CFR § 1506.1, ...................................................................................................3, 5

40 CFR Part. 1503.................................................................................................... 29


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PREFACE

Defendant’s Motion to Dismiss Complaint is pending before this Court.

Defendant’s Motion has been filed, and Plaintiff’s Opposition is now due.

Then, on November 15, 2011, Defendants filed a Notice of Filing of

Supplemental Declaration of Joseph D. Ludovici along with that declaration.

In its submission the Government stated that “‘the Navy has determined that

additional analysis under the National Environmental Policy Act (“NEPA”) is

appropriate’ . . . As a result, the ‘Navy will prepare a SEIS [Supplemental

Environmental Impact Statement] to re-evaluate live-fire training range

complex alternatives. . . . The Navy intends to begin the SEIS process in early

2012.’” Notice of Filing at 1. In its filing the Government further assured

“that the Navy will include scoping as part of the SEIS and the Navy is

committed to providing opportunities for public involvement consistent with

NEPA regulations during the scoping process and throughout the SEIS process

for the live-fire training range complex.” Id. The Government continued by

stating that “[t]he Navy expects the SEIS to take a minimum of two years to

complete after the process formally commences in early 2012, and the ‘Navy

will complete the SEIS for the live-fire training range complex before any final

decision on the location of the range training complex is made.’” Id. at 1-2.

In their Complaint filed November 17, 2010, Plaintiffs prayed, inter alia,

for the following relief -- that Defendants be ordered to comply with NEPA by

“requiring the preparation of a Supplemental EIS remedying the deficiencies

of the FEIS and circulating it for public comment in both draft and final form,

to be followed by an amended ROD.” Complaint, page 85, Relief para. 5.2,

Docket 1.


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Defendants have now agreed to precisely what Plaintiffs have been

requesting in filing this lawsuit. As such, Plaintiffs welcome Defendants’

filing and the rethinking which it potentially implies.

Defendants’ actions are consistent with this Court’s projection (in its

June 30, 2011, Order Denying Defendants’ Motion for Voluntary Remand and

Stay) of potential developments in this case:

In the Court’s view, Defendants want to have their

cake and eat it too. They want to conduct the

reconsideration process and the want to stay Plaintiffs’

litigation of this case, while they do so, but they only

want to allow Plaintiffs a very limited role in the

reconsideration process. Defendants can conduct their

internal reconsideration process even if this Court denies

the Motion. If Defendants do decide to forego the

previously identified sites within the Pågat area and to

focus on other locations, Defendants can file a new

motion for remand and stay at that time. This Court

would likely construe a motion for a voluntary remand

and stay under those circumstances as a request to

reconsider the agency decision because the original

decision to focus on the Pågat area sites was incorrect. . .

. Further, if Defendants decide to focus on a site outside

of the Pågat area, they will have to go through the EIS

process again, and the Court would be inclined to grant a

motion for voluntary remand and stay to accommodate

that process.”


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Order at 14-15, Docket 76. (Emphasis added.)

Given Defendants’ filing and the Court’s Order Plaintiffs would have no

objection to a remand as outlined in the Court’s Order. This necessarily

assumes the retention of jurisdiction by this Court (and therefore denial of the

currently pending Motion to Dismiss Complaint). Such continuing jurisdiction

is important to Plaintiffs and to the integrity of the judicial process. The

Defendants’ filing, while welcome, is not without its limitations. That Notice

of Filing “confirms the continuing accuracy of statements . . . which informed

the Court that the Presidents’ proposed budget for Fiscal Year 2010 (FY 12)

‘did not propose funding for acquisition of land for the live-fire training range

complex’ and that the Navy ‘did not anticipate being able to undertake any

construction-related ground disturbing activities in the Route 15 area’ in FY

12.” Notice of Filing at 2.

• In other words, the Government projects no construction-related ground disturbing activities in the Route 15/Pågat area in FY 12.

No such warranty is made for FY 13 of FY 14, both within the

“minimum of two years” to complete the NEPA SEIS process

after it begins in early 2012. See: Id. at 2.

• Of still more immediate significance, no warranties whatsoever are given with respect to the alternative sites which presumably

the Government will be examining. The Complaint described 12

potentially reasonable alternative sites to be considered.

Complaint paras. 71, 73,.75, pages 40-49. Docket 1.

As a generality, of course, an agency may not take actions during the

pendency of the NEPA process which preclude consideration of and potential

selection of any alternatives at the end of that process. In the words of 40 CFR

§ 1506.1, Limitations on actions during NEPA process, until an agency


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prepares its Record of Decision (ROD), here at the conclusion of the SEIS

process, “no actions concerning the proposal shall be taken which would: (1)

Have an adverse environmental impact; or (2) Limit the choice of reasonable

alternatives.” Needless to say, the Government has not assured this Court that

it would not undertake such ground disturbing activities at the 12 alternative

sites presumably to be among those considered in the SEIS Should the

Government commence such activities, Plaintiffs would need the capability to

come to this Court for appropriate relief, a potential which would not exist if

this case were dismissed, forcing the Plaintiffs to file a new lawsuit without

benefit of the 250,000 document administrative record which currently exists.

So, in brief, Plaintiffs welcome the Government’s filing, would not

object to a remand and stay, would strenuously urge this Court to retain

jurisdiction, submit that the presently scheduled December 12 hearing should

proceed as planned, and -- for the reasons which follow -- continue to oppose

the Government’s pending Motion to Dismiss.

INTRODUCTION

This case involves Defendants’ attempts to site a complex of firing

ranges (for machine guns, rifles, and other weapons) in or near Pågat Village

and its surrounds, a site sacred to the Chamorro people, on the island of

Guam.1 The complaint alleges violations of the National Environmental

Policy Act (NEPA) (principally failure adequately to examine alternative sites

1 Plaintiffs reiterate that this litigation does not contest the Government’s decision to move troops and equipment from Okinawa (Japan) to Guam. Plaintiffs only take issue with Defendants’ decision to site their firing range complex at Pågat and its surrounds (an area also described in certain of the Navy’s documentation as the “Route 15 area” (named after a road which abuts it)). Complaint at ¶ 5.


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for the ranges2), the National Historic Preservation Act (NHPA), and the

Coastal Zone Management Act (CZMA).

Earlier in this proceeding Defendants filed a Motion for Voluntary

Remand and Stay. Docket 60. After full briefing and a hearing, this Court

exercised its discretion and denied Defendants’ Motion. Slip op. at 15.

Docket 76. The Court concluded that “Defendants want to have their cake and

eat it too,” explaining that Defendants wanted to stay Plaintiffs’ litigation

during a reconsideration process but only wanted to allow Plaintiffs a very

limited role in the reconsideration process. Id. at 14. The Court denied

Defendants’ Motion without prejudice to their filing a new motion for remand

and stay if Defendants “do decide to forego the previously identified sites

within the Pågat area and to focus on other locations.” Id. at 14-15. In that

case Defendants would have to go through the NEPA process again. Id.

The Court also concluded that the parties should address the finality

issue before proceeding to motions for summary judgment on the overall

merits of the case. Id. at 15. Hence the current Motion and Opposition.

In short -- there is clearly final agency action:

• The Record of Decision (ROD) states on its face that it is a decision -- a decision to site the firing ranges at Pågat/Route 15.

(Pages 23-25, infra.)

• The Government-wide CEQ NEPA Regulations say a ROD states what the decision was. (Page 21, infra.)

• The Navy’s own regulations specify that the Navy’s decision is reflected in the ROD. (Page 22, infra.)

2 The most closely controlling case on the merits is ‘Ilio’ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083 (9th Cir. 2006) (the “Stryker” brigade case).


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• The 9th Circuit holds that once an EIS’s analysis has been solidified in a ROD, an agency has taken final agency action.

(Page 22, infra.)

• Other Circuits agree. (Page 22, infra.)

• The Navy’s own public explanation of its decision asserts that the Pågat/Route 15 area was chosen as the site to build live-fire

training ranges for the Marine Corps. (Page 25, infra.)

What more do Defendants want? The ROD was and is final agency

action. Their Motion to Dismiss must fail.

A. A Brief Chronology

Some chronology is useful, bearing in mind that 11 of the 13 claims for

relief in Plaintiffs’ complaint arise under NEPA and one under the NHPA (the

remaining claim being under the CZMA).

• NHPA and its implementing regulations require that the processes under that act conclude before (or simultaneously with) the Record of Decision (ROD), the final agency action under NEPA, 16 USC § 470f; 36 CFR §§ 800.1(c), 800.8(a)(3), 800.8(c)(5). That ensures the NHPA process will be concluded prior to the decision embodied in the Record of Decision.

• On September 21, 2010, the ROD was executed, constituting final agency action. Complaint, para. 66.

• On November 17, 2010, Plaintiffs filed their complaint with its NEPA, NHPA, and CZMA claims. Docket entry 1.

In their complaint Plaintiffs alleged that Defendants violated the NHPA § 106 by failing to conclude their NHPA process prior to execution of the ROD. Complaint at paras. 97-104, Prayer at para. 3.


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It is, most respectfully, impossible to conclude anything other than that Defendants’ failed to conclude the NHPA process prior to the ROD, violating that act.

• Then in March, 2011, Defendants finalized their Programmatic Agreement (PA) under the NHPA. Defendants’ Motion to Dismiss the Complaint at 5.

In that PA -- which was not signed by those of Plaintiffs who would have been concurring parties -- Defendants purported to undo their decisions in the ROD. They now claimed -- having read Plaintiffs’ complaint -- that the decision made in the ROD to place the firing ranges in one of two locations in Pågat (Route 15 area) was retroactively (without following NEPA’s procedures) to be unmade.

• In summary --

Defendants’ postdecisional, purported retroactive change of position, is post hoc rationalization at its most blatant.

Defendants have, in short, attempted to hornswaggle this Court into allowing them to use their own violation of law (failure to complete a PA before the ROD) to enable them post hoc to alter a decision already finalized in the ROD.

Defendants had placed themselves between the horns of a dilemma --

simultaneously admitting that (1) their ROD indicates that the firing ranges

will be sited in Pågat (the Route 15 area) (Def’s Motion at 4 (selection is to be

in the Route 15 area); see ¶ I-A-2, infra.) and (2) -- post ROD -- claiming an

openness to alternate location “outside those assessed in the FEIS” (Def’s

Motion at 5). The former (1) necessarily implies that Plaintiffs must be

prepared to seek immediate injunctive relief if the Navy moves ahead at Pågat

(Route 15). The latter (2) would require a supplemental EIS or a corrected and

recirculated DEIS to examine the new location, precisely the relief Plaintiffs


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seek. (Complaint, Prayer at para. 5.) And now the Navy agrees to prepare an

SEIS. Either resolution demands rejection of Defendant’s Motion to Dismiss

the Complaint.

B. What is at Stake - The Cultural Significance of Pågat

Archaeological investigations have dated Pågat Village to 700 A.D. AR

241985. This ancient coastal village of the Chamorro, the indigenous people

of the Mariana Islands, has been listed on the National Register of Historic

Places since March 13, 1974, having been the first National Register-listed site

on the island of Guam. AR 227824 (FEIS vol. 2 at 16-56). In addition to the

village itself there are at least three other historic properties in the Pågat area

eligible for listing on the National Register. Id.; see also AR 227707 (FEIS

vol. 2 at 12-23). Pågat Village was also named by the National Trust for

Historic Preservation as one of the 11 Most Endangered Historic Places in

America for 2010. AR 227824 (FEIS vol. 2 at 16-56).

Pågat Village as an archeological site contains the remnants of a large

latte village (referring to the unique carved stone pedestals, lattes, upon which

Chamorro buildings rested) that is believed to have been part of a larger

exchange network among multiple historic sites (some of which have been

defined, others of which await further research) along the coastline. AR

227824 (FEIS vol. 2 at 16-56).

The larger Pågat Village landscape3 includes a related site immediately 3 The FEIS identifies Pågat and its surrounds (the Route 15 area) as including

• Pågat Village (including Pågat Cave)

• Pågat Point

• Marbo Cave

• Pågat Trail and related hiking trails


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to the north, Pågat Point, which was likely an agricultural farming area for the

prehistoric Pågat Village settlement. AR 227824 (FEIS vol. 2 at 16-56). Pågat

Point also includes the historic modern ranch or lancho of Juan Cepeda, who

collects traditional plants in the limestone forest and coastal areas within the

Route 15 Pågat area in his role as suruhano or traditional pain doctor. Id.

Suruhano are “spirit counselors” or “medicine men” of the Chamorro culture,

whose knowledge was and is passed from previous generations. AR 227922

(FEIS vol. 2 at 16-54). The suruhano are believed to possess the ability to

communicate with tatoam ‘na (ancestral spirits), as well as traditional

knowledge of tinanom (plants) and amot (medicine). AR 227922-24 (FEIS

vol. 2 at 16-54 to -56). Suruhano continue to exist to the present day,

gathering medicinal plants and administering amot to the Chamorro

community. Id. The land not only provides the resources for the preservation

of health, but of a traditional Chamorro knowledge based on the ecosystem.

Id.

• Off-shore fishing

• Cultural gathering activities (suruhanu)

• Subsistence farming activities

AR 227824 (FEIS vol. 2 at 16-56). The Route 15 area is visually delineated on pages 3-31, 3-39, and 3-40 of Appendix F to volume 9 of the FEIS, See AR 232475, 232483-84 (FEIS vol. 9, App. F, Land Acquisition Report at 3-31 (Lot Outlines) and 3-39 to 3-40 (Ownership). Also see Declarations of Speaker Judith T. Won Pat, Ed.D., ¶¶ at 2-6, Joseph Quinata at ¶¶ 6-7, Michael Lujan Bevacqua, Ph.D., at ¶¶ 5-6, 8-14, Marilyn C. Salas, Ph.D. at ¶ 5, and Anthea M. Hartig, Ph.D., at ¶ 4. Unfortunately, Defendants’ 24,000-page FEIS does not contain a map of the Pågat/Route 15 area showing the location of the proposed firing ranges, the location of the SDZs needed for those ranges, the location of historic and cultural resources, and ownership information about the relevant parcels. Instead, various maps containing some (but not all) of that information are scattered through the Administrative Record. For the Court’s convenience, Plaintiffs collected the most relevant maps from different parts of the Administrative Record, and attached those maps as Exhibit 4 to their Partial Opposition to Defendants’ Motion for Voluntary Remand and Stay.


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Marbo Cave is situated immediately south of Pågat Village and is

“regularly visited by members of the Chamorro culture and the resident

community.” AR 227923 (FEIS vol. 2 at 16-55). It is filled with fresh water

to depths of 30 feet. AR 227924-25 (FEIS vol. 2 at 16-56 to -57); see also

Answer at ¶ 52.

Physical and tangible remains from Pågat Village itself include up to 20

latte sets and more than 50 mounds of artifacts and middens. AR 227707

(FEIS vol. 2 at 12-23); Answer at ¶ 53. There are also remnants of trails, more

than 30 mortars and grinding areas, and an unknown number of caves and rock

shelters. Id.

To date only about 60% of the area around Route 154 has been surveyed

for cultural resources. Id.5 Much of the firing range area itself is mapped by

the Navy as appearing in the “medium probability” archeological resource

area. AR at 227707 (FEIS vol. 2 at 12-23). Remarkably, the Navy purported

to make decisions on the future of this site without completing its survey of

cultural resources located there.

Pågat is the most publicly accessible of all the ancient sites on the island

of Guam that are not already controlled by one of the branches of the Armed

Services of the United States or in private ownership. (See the Bevacqua and

Hartig declarations quoted below.) The FEIS concludes that operation of the

firing ranges at the selected site(s) “would have an indirect effect on the

historic properties on the coastal plain at Pågat . . .” AR 227733 (FEIS vol. 2 4 As the Speaker of the Guam Legislature, Judith Won Pat, Ed.D., has noted, during the process of developing its course of action “DoD stopped identifying the preferred alternative for the firing range complex as Pågat and began identifying it as Route 15 while the diagrams of the intended complex remained essentially the same.” Won Pat decl. at ¶ 3. 5 Another, inconsistent, portion of the EIS asserts that 70% of the area has been surveyed. AR 227731 (FEIS vol. 2 at 12-47).


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at 12-49). According to the FEIS, the training range would operate 7 days a

week, 24 hours per day. AR 227644 (FEIS vol. 2 at 11-90). The FEIS admits

that “selection of the preferred alternative would cause the cessation of present

activities on all the Pågat recreation resources mentioned because the Known

Distance (“KD”) Range Complex is proposed in that location.” AR 228124

(FEIS vol. 2 at 19-12). According to the FEIS, there would be an “adverse

socioeconomic impact to the community.” AR 228012-13 (FEIS vol. 2 at 16-

144 to 16-145). There would be “significant adverse impact on GovGuam due

to land acquisition.” AR 228009 (FEIS vol. 2 at 16-141); see also AR 228128

(FEIS vol. 2 at 19-16). Significant noise impacts would occur. AR 227193-94

(FEIS vol. 2 at 6-35 to 6-36). The Navy’s noise contour maps show noise

contours of 87 dB PK covering all of the Pågat area and of 104 dB PK

covering most of it. AR 232832-33 (FEIS vol. 9, App. G, at Figures 6-7a and

6-7b).6

Equally important as the physical manifestations of the Chamorro

heritage is the Chamorro people’s relationships to their ancestors, whose

spirits are believed to be present in Pågat Village and the surrounding forest.

To quote a portion of the 24,000-page FEIS (a discussion not reflected among

the factors that were evaluated in discussing and comparing alternatives to the

Pågat site):

Regardless of actual legal ownership designations, land

on Guam also represents to native Chamorros a sense of

place. The island of Guam is often referred to by them as

Tano y Chamorru or the land of the Chamorros, a 6 By way of comparison, 87dBA is roughly the amount of noise generated by a food blender at 3 feet or a diesel truck at 50 feet. AR 227160 (FEIS vol. 2 at 6-2). A noise level of 104dBA is roughly equivalent to a jet flying at 1,000 feet, while a rock band would generate 110dBA. Id.


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reference not to land ownership in the Western sense, but

to spiritual ties that a people feel for the cultural

birthplace -- in other words, where they belong. Ancient

Chamorro beliefs do not place the dead in a higher or

lower plane of existence. Instead, they believe that their

ancestor’s spirits remained in the world, that “a person’s

soul was taifinakpo’ (without end) and that the ante

(spirit) would return to the world its family still lived in

with new powers and obligations.” Significantly, the

ancient Chamorro practice of animism, or the belief that

everything in nature contains a spirit or soul, means that

these spirits (ancestors) and thus people in general are

interconnected and inextricable from nature. In addition,

specific ancestral spirits are place-based, causing the

need for the living, unfamiliar to certain spirits, to ask

permission before entering certain areas.

AR 227923 (FEIS vol. 2 at 16-55).

The cultural and traditional significance of the historic Pågat Village has

further been summarized in comments to the Navy by the Guam Preservation

Trust:

The relationship between the Chamorro people and the

land is paramount for it is through our ancestors or Saina

that connects us spiritually and physically to the land.

The Chamorro people believe that the ancient

Chamorros, their ancestral spirits built the world and

together (with present day Chamorros) continue to build

the world each day. . . .


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The spirit of our ancestors are believed to also be in one

with the plants and animals of the land. The Tronkon

Nunu or the Banyan tree is the dwelling place of our

ancestral spirits. The Tronkin Nunu can be found in the

historic Pågat village. . . .

The Chamorro people have maintained the tradition of

fishing for thousands of years. Fish is the main staple of

food and this tradition has been passed from generations

ago. Fishermen from Pågat village and the surrounding

area have been fishing in the coast of historic Pågat

village, which is evident from archaeological surveys’

findings of fish bones and fishing implements as well as

from today’s fishermen and their stories.

AR 241981 (comments provided to Navy regarding EIS).7

The Governor of Guam has recognized the strong community support

for this site, stating that putting firing ranges at Pågat will preclude school field

trips, significantly impact traditional fishing, and significantly impact

recreational resources. AR 219702, 219747 (FEIS vol. 10 at K-055-072, K-

055-073, K-055-345). The Vice Speaker of the Guam Legislature in his

comments stated that “Cultural sites are integral to the preservation of our

cultural heritage, to the positive self-concept of our native children, and the 7 For more detail concerning Pågat as a cultural resource, see Declaration of Michael Lujan Bevacqua, Ph.D. (discussion of artifacts found, seafaring practices at Pågat, students and Guam residents’ use of Pågat); Declaration of Joseph Quinata (Pågat Village as a “community responsibility,” educational importance of Pågat; the village as a “traditional cultural property”; importance for medicinal herbs and spiritual strength; fishermen and hunters frequent area for subsistence; use by hikers); Declaration of Anthea M. Hartig, Ph.D. (Pågat is “accessible to the public and actively used as a traditional cultural property.”).


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tourism industry that sustains our island’s economy.” AR 220204 (FEIS vol.

10 at K-110-001).

On September 13, 2010, the Legislature of Guam unanimously passed

Resolution 444 directing that Pågat “shall not be used for a firing range

complex and that its historic value and cultural significance must be

preserved.” (Emphasis in the original.) Won Pat Dec. at ¶ 4, Ex. B at 9.

The Navy in its memorandum in support of its earlier Motion for

Voluntary Remand and Stay spoke as if it had addressed its concerns of

Plaintiffs and others by committing to access to the “Pågat Village and Pågat

historical sites.” Defendants’ Memorandum in Support of Motion for

Voluntary Remand and Stay (“Def. Motion”) at 9 [cite]. That simply is not the

case. As recognized in the FEIS itself (see note 3, supra., for the Navy’s own

recognition of what land and water areas are encompassed within the

Pågat/Route 15 area), Pågat encompasses an area which includes but is far

larger than the two mentioned historical sites.8 Both Speaker Judith Won Pat

and Joseph Quinata have elaborated on what is encompassed within Pågat.

As recounted by the Speaker of Guam’s Legislature, the Honorable

Judith T. Won Pat, Ed.D.:

DoD stopped identifying the preferred alternative for the

firing range complex as Pagat and began identifying it as

Route 15, while the diagrams of the intended complex

remained essentially the same. . . . In January of this

year, after the release of the ROD, Robert Work and 8 The Court may find it useful to examine several maps made part of this submission in order better to understand the relationships within the Pågat area, including the geography, the extent of the Pågat/Route 15 area, the sites of specific archeological and other sites within Pågat, the ownership of different portions of the Pågat/Route 15 area, the SDZ, and contours showing the extent of noise from the firing ranges.


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Jackalynn Pfannenstiel came to Guam and made claims

to the media, the Governor and to the Legislature that

“Pagat was no longer on the table,” and that our

community would be given “twenty-four hour unfettered

access.” After some investigation, it became clear that

their plans still included the area that we consider to be

Pagat. The area newly “excluded” was limited to the

vicinity strictly defined as a historical site. Access to this

area would still be controlled by the DoD and therefore

subject to changes in military missions and the discretion

of the commanding officer. . . . Pagat is, in fact, much

larger that the site of the officially recognized ancient

village. As locally defined, Pagat begins at a northern

mountain peak called Santa Rosa, and extends along the

eastern side of a low mountain range toward Pago Bay.

Won Pat Dec. at ¶¶ 2-6. The Speaker’s description of Pågat (which the Navy

renamed the Route 15 area) is reinforced by the maps in the FEIS itself. See

AR 232475, 232483-84 (FEIS vol. 9, App. F, Land Acquisition Report at 3-31,

3-39, and 3-40).

The geographic reach of what is meant by Pågat is also described by

Joseph Quinata of the Guam Preservation Trust:

Pågat Village is a complex of ancient settlement that

stretches along the northeastern coast of Guam of which

three distinct archeological sites were identified and

listed on the national register of historic places (site

numbers: 66-04-0021, 66-04-0022, 66-04-0024).

However the important cultural resources at Pågat are not


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confined to those three sites…Pågat Village is also

identified by the community as a traditional cultural

property for it provides for traditional practices and

values that are revered by the Chamorro culture.

Suruhanos or cultural healers frequent the stretch of land

to seek medicinal herbs and spiritual strength; local

fishermen and hunters frequent the area for subsistence;

educational activities that focus on Guam’s history and

environment frequent the area as one of their field study;

and hikers enthusiasts frequent the trail as one of their

sites to explore.

Declaration of Joseph E. Quinata at ¶¶ 6-7. Mr. Quinata has also emphasized

the role of fishing to the inhabitants of Pågat Village, who fished off the coast

of historic Pågat Village. Exh. 3 at AR 241981.

Michael Lujan Bevacqua, Ph.D., is a professor of Guam history and

Chamorro culture at the University of Guam. He declares:

I . . . am familiar with the layout and the Pågat area based

on my repeated explorations in the area. . . . The artifacts

that I have seen are not limited to the area surrounding

Pågat Cave and the natural arch. In fact, there is physical

evidence of ancient Chamorro life from the area starting

at Pågat Cave throughout the jungle and along the coast

to Pågat Point. . . . Pågat Village is one of the few sites

where the general public can experience history in this

way and on this scale. . . . Out of respect to the

taotaomo’na, you are not supposed to make loud noises

or be overly disruptive in the jungle. . . . Building a


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firing range complex anywhere in that area would be an

affront to the Chamorros and our ancestors. There will

be a fear of visiting Pågat Village when you know that

10,000,000 bullets per year will be fired on the bluffs

above Pågat Village. . . . I always emphasize to my

students and to people who I lead to Pågat Village that

the spirit of the place will change completely if it is

adjacent to five (5) firing ranges.

Declaration of Michael Lujan Bevacqua (“Bevacqua Dec.”) at ¶¶ 5-6, 8-14,

who also discusses the seafaring practices of the people of Pågat, stressing

impacts in the water as well as the land at Pågat. Id. at ¶ 7; see also the

declarations of Marilyn C. Salas, Ph.D., and Anthea Hartig, Ph.D.

In sum, the Navy’s assertion that it has addressed the cultural impact

concerns surrounding Pågat is specious:

• The specific sites claimed to be protected constitute only a small portion of Pågat, which encompasses a far larger area on both land

and sea.

• The Navy makes no effort to explain why the noise and other impacts of firing ranges are compatible with the spiritual values

associated with Pågat by the Chamorro people.

• The Navy is not proposing to move the firing ranges away from

Pågat. Instead, in its earlier Motion to Remand it argued for a

“probabilistic” methodology that will shrink the Surface Danger

Zone (representing only one impact -- the danger of being hit by

bullets or other projectiles) so as, on paper, to show less impact in a

portion of Pågat.


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ARGUMENT

I. There Has Been “Final Agency Action” And Anything The Navy Did or Does Now Post ROD Is A “Post Hoc Rationalization”

It is black letter Administrative Procedure Act law that the agency is to

make its decision “based on the full administrative record that was before the

[agency official] at the time he made his decision.” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). That decision was not

to be based on “post hoc” rationalizations. Id. at 419-420. Here Defendants

seek to evade the constraints of the APA and Overton Park by (1) pretending

that there has been no final agency action to select the Pågat /Route 15 area for

the firing range complex and (2) arguing that the postdecisional Programmatic

Agreement (PA) under the NHPA -- finalized months after Plaintiffs’

Complaint was filed -- somehow undid the decision reached in the Record of

Decision.9 This they attempt to reinforce with litigation declarations. All

represent post hoc rationalizations.

9 Plaintiffs do not argue that Defendants cannot come to a different decision after their Record of Decision, but, as this Court accurately recognized in its June 30, 2011, Order Denying Defendants’ Motion for Voluntary Remand and Stay, any such change of decision must be reached in accordance with NEPA’s procedures as outlined in the portion of this Court’s Order quoted at page 2, supra.


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A. There Clearly Is Final Agency Action On The Part Of Defendants

1. Execution of the Record of Decision was Final Agency Action Under Both the Applicable Regulations and Case Law.

In their Motion for Voluntary Remand and Stay Defendants attempt to

retract the final agency action they took in their “Record of Decision,”

claiming there is no “final agency action.” Def. Motion at 15.

• Just what do they think a Record of Decision (“ROD”) is? It records a decision. As stated in the government-wide CEQ NEPA

Regulations, 40 C.F.R. § 1505.2(a), the ROD shall “State what the

decision was.”

• Similarly, the Navy’s own regulations clearly provide that “the agency decision in the case of an EIS is reflected in a ROD.” 32

CFR § 775.6(a).

• In the Ninth Circuit’s words, “Once an EIS’s analysis has been solidified in a ROD, an agency has taken final agency action,

reviewable under § 706(2)(A).” Oregon Natural Desert Association

v. Bureau of Land Management, 625 F.3d 1092, 1118 (9th Cir.

2010).

• Other Circuits agree: Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1173 (11th Cir. 2006): “It is well settled that a final EIS or

the record of decision issued thereon constitute final agency

action.” (citing Southwest Williamson County Community

Association v. Slater, 173 F.3d 1033, 1036 (6th Cir. 1999));

Goodrich v. United States, 434 F.3d 1329, 1335-36 (Fed. Cir.

2006): “for purposes of the Administrative Procedure Act, a ROD

is a final agency action.”; Jersey Heights Neighborhood


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Association v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999): “we

agree with the district court that the . . . ROD was the final agency

action.”

• The Supreme Court’s direction. As the Supreme Court put it in the context of standing dealing with the finality of another

environmental document (under the Endangered Species Act), the

agency was, “to put it mildly, keenly aware of the initially

determinative effect” of its opinion. Bennett v. Spear, 520 U.S.

154, 170 (1997). The Court found it “not difficult to conclude that

petitioners have met their burden -- which is relatively modest at

this stage of the litigation -- of alleging that their injury is ‘fairly

traceable’ to the [agency’s] Opinion and that it will ‘likely’ be

redressed . . . if the . . . Opinion is set aside.” Here too Plaintiffs’

injury will likely be redressed if the FEIS is set aside.

Defendants simply cannot wriggle out of their ROD by claiming it is not

final agency action. The applicable regulations and the case law rebut their

contention.

2. Factually, the Record of Decision is Clear on Its Face That it Represents Final Agency Action to Site the Firing Ranges at Pågat.

This ROD was signed on September 20, 2010. Answer at ¶66. It

represented a decision to narrow the alternatives remaining under

consideration to two -- both at Pågat/Route 15. In other words, a final

decision was reached that the ranges would be in the “Route 15 area” (i.e.,

Pågat and its surrounds). Specifically the ROD states:

a. “Relative to construction and operation of a live fire training range

complex on Guam DoN has elected to defer selection of a specific

site in the Route 15 area [Pågat] pending completion of the


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[NHPA] Section 106 consultation process . . . . Alternative A

remains DoN’s preferred alternative.” See AR 243958-59 (ROD at

4-5) (emphasis added).

b. “There are two alternatives for the location of live fire training

ranges, both located [at] the Route 15 area.” See AR 243971

(ROD at 17) (emphasis added).

c. “Upon completion of the Section 106 consultation process and

selection of a specific site in the Route 15 are [sic] for the

construction and operation of a live fire training range complex,

access to Pågat site will be reduced . . . .” See AR 244009 (ROD at

55) (emphasis added).

d. “Upon completion of the Section 106 consultation process under

the NHPA and selection of a specific site for the construction and

operation of a live firing range complex in the Route 15 area,

stakeholder representatives . . . will be invited to consult on an

access plan . . . .” See AR 244032 (ROD at 76) (emphasis added).

e. Under “Alternatives Selected” the following appears:

“As noted earlier, DoN has elected to defer selection

of a specific site for the construction and operation of

a live fire training range complex in the Route 15

area on Guam pending completion of the Section 106

consultation process under the National Historic

Preservation Act (NHPA). Likewise, a selection

regarding implementation of a roadway improvement

project calling for a realignment of Route 15 is hereby

deferred pending selection of a specific site for the

construction.” See AR 294042 (ROD at 88)


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(emphasis added).

f. “A more in-depth discussion of the process and considerations

utilized in making a decision to proceed with the preferred

alternatives to construct and operate of [sic] live fire training ranges

at the Route 15 area is provided in Attachment 2 of this ROD.”

See AR 244010 (ROD at 56) (emphasis added). (The “Attachment

2” document explains the Navy’s rejection of all non-Route 15

alternatives.)

g. After selecting Pågat for the firing ranges, the ROD limits future

discussions to the terms of access to the chosen site. “DoN

commits within the ROD that it will coordinate with Gov Guam

officials on the development of an access plan [to the Pågat

historical site] that provides access to the greatest extent practicable

and that will seek public input and hold public meetings on the

development of the plan.” See AR 244061 (ROD at 107) (emphasis

added).10

3. Also Factually, the Navy’s Explanation of Its Decision to the Public Made Clear That the Pågat/Route 15 Area Was Chosen As the Site to Build the Firing Ranges.

Defendants’ public briefing documents reinforce the finality of the

decision. For example, in a paper titled “Record of Decision and What’s 10 The Navy proposes to develop at the Pågat site five separate firing ranges, including machine gun and rifle ranges, to be used by the Marines and others. The Navy anticipates that annually 10,134,750 rounds will be fired at the ranges, and that 1013 rounds or fragments could fall outside the target area but within the SDZ, an area essentially encompassing Pågat Village. AR 226818-19 (FEIS vol. 2 at 2-56 to 2-57) (statistics on rounds falling on Pågat)); AR 226845 (FEIS vol. 2 at 2-83 (Navy’s map of SDZs)). The land proposed to be taken for the firing ranges is currently owned 42% by the Guam Ancestral Lands Commission (GALC), 25% by the Chamorro Land Trust Commission (CLTC), 25% by the Government of Guam, and 8% by private owners. AR 227252 (FEIS vol. 2 at 8-16); AR 232475, 232483-84 (FEIS vol 9, App. F,


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Next” JGPO confirms “The preferred alternative as defined within the

FEIS…will be implemented” and notes that “the [Route] 15 area was chosen

as the site to build live-fire training ranges for the Marine Corps.” AR

251416 (emphasis added).11

4. By Way of Contrast to the Decision to Site the Firing Ranges in the Pågat/Route 15 Area, Defendants Were Quite Clear in Deferring Decisions with Respect to the Navy’s Carrier Berthing and the Army’s Air Defense Systems.

By way of contrast to Defendants’ murky assertion that they have yet to

make a “decision” (as to whether Alternative A at Pågat or Alternative B at

Pågat is to be the site) and that therefore they have deferred a siting “decision,”

Defendants are quite capable of clearly stating that they have not made a final

decision -- not taken final agency action -- when they want to.

The Court will recall that the EIS itself and then the resulting ROD dealt

with the decisions as they affected three branches of the armed services (e.g.,

“Record of Decision for Guam and CNMC Military Relocation including

Relocating Marines from Okinawa, Transient Nuclear Aircraft Berth, and Air

and Missile Defense Task Force.” (ROD Cover [cite])). Decisions with

respect to the three services were set out in the ROD:

• With respect to the Marines, a series of decision were made, the one specific to this case involving Pågat resulting in “a decision to

proceed . . . at the Route 15 area . . . .” AR 244010 (ROD at 56);

also see the series of citations to the ROD which appear in para.

I(A)(2) supra.

Land Acquisition Report at 3-31, 3-39 and 3-40). 11 Although the “What’s Next” document says that the Navy will defer its decision on a location for an aircraft carrier berth, it makes no such statement with respect to the firing ranges. AR 251416.


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• With respect to the Navy, the ROD concluded, “DON has elected to defer selection of a specific site for the construction and

operation of a transient aircraft carrier berth within Apra Harbor

for the near term.” AR 243956; see also AR 243976 (“the Navy

has decided to defer a decision . . .”) and AR 243977 (“DON has

committed to collecting additional marine resources information

and, as required, preparing project (site-specific) level National

Environmental Policy Act (NEPA) analysis prior to making a

final site-specific decision for CVN berthing facilities . . . .’).

• With respect to the Army (and its Air and Missile Defense Task Force (AMDTF)), the ROD concluded, “As of the date of this

ROD, the DoD has not decided to construct and operate an

AMDTF on Guam.” Id. at 243956; see also Id. at 243960.

In short, Defendants are quite capable of saying what they mean with

respect to final agency action. They decided to defer decisions on the Navy’s

berthing (pending further NEPA review) and on the Army’s air defense role.

In stark contrase, Defendants had the opportunity to, but chose not to commit

to additional analysis with respect to siting the Marines’ firing ranges in the

Pågat/Route 15 area in the ROD. It is that of which Plaintiffs complain.

5. The Navy Cannot Undo Its Final Agency Action with Post Hoc Rationalizations

As repeatedly stated in its ROD, the Navy has clearly made a final

decision to site the firing range complex at Pågat (Route 15 area). Para. IA2,

supra. To assert otherwise strains credulity. Here the Navy has clearly

decided in a “Record of Decision” to site the firing range complex in the

Pågat/Route 15 area. The only question is whether it is to be an Alternative A

within the Pågat/Route 15 area or Alternative B within the Pågat/Route 15


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Area. The decision has already been reached to site the firing ranges in the

Pågat/Route 15 Area. That is what the Record of Decision decided. That too

is “final.” And that is what Plaintiffs complain about. To reiterate the

Supreme Court’s direction, “[A] person with standing who is injured by a

failure to comply with the NEPA procedure may complain of that failure at the

time the failure takes place, for the claim can never get riper.” Ohio Forestry

Association, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998).

The question of “final agency action” is of critical importance here,

because once there is final agency action, the administrative record is closed.

The Government earlier sought to bypass this basic tenet of administrative law

and reopen the record to introduce its “probabilistic” recalculation of the

impacts of the firing range complex at Pågat and its surrounds -- the very sort

of “post hoc rationalization” the Supreme Court has condemned (see following

discussion). This Court denied that Motion. Defendants, however, continue to

press their attempt to get around the finality recorded in the Record of

Decision by attempting to alter the ROD’s outcome by their litigation

declarations (post hoc rationalizations) and by seeking to use their tardy (and

illegally postdecisional) submission of a PA under the NHPA to question what

was decided in the ROD (a maneuver which would have been impossible if the

law had been followed and had the PA preceded the ROD).

B. Defendants Cannot Rely on Post Hoc Rationalizations to Unrecord the Decision Reached in the Record of Decision

In their litigation declarations and in their pleadings as well as in their

Programmatic Agreement (PA), which was post ROD and post filing of the

complaint (see pp. 2-3, supra.), Defendants attempt to use post hoc

rationalizations to get around the finality of their decision in the ROD to site


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the firing ranges at Pågat/Route 15. Since the Supreme Court’s decision in

Overton Park, such post hoc rationalizations prepared in connection with

litigation have been disfavored. Overton Park, 401 U.S. at 419-420; see also

Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 491 (9th Cir.

2011) (the hard look to be taken under NEPA cannot be “a subterfuge

designed to rationalize a decision already made.”); Humane Society of the

United States v. Locke, 626 F.3d 1040, 1050 (9th Cir. 2010) (“Defendants’

post hoc explanations serve only to underscore the absence of an adequate

explanation in the administrative record itself.”); New Mexico ex rel

Richardson v. Bureau of Land Management, 565 F.3d 683, 704 (10th Cir.

2009) (“In considering whether the agency took a hard look, we consider only

the agency’s reasoning at the time of decisionmaking, excluding post-hoc

rationalization . . .”); Gifford Pinchot Task Force v. United States Fish &

Wildlife Service, 378 F.3d 1059, 1071 n.7 (9th Cir. 2004) (post hoc

rationalizations (even after remand) are not a proper basis for judicial review);

Dubois v. United States Department of Agriculture, 102 F.3d 1273, 1289 (1st

Cir. 1996) (“post hoc rationalizations are inherently suspect.”); City of

Brookings Municipal Telephone Company v. Federal Communications

Commission, 822 F.2d 1153, 1165 (D.C. Cir. 1987) (“Post hoc rationalizations

advanced to remedy inadequacies in the agency’s record . . . are bootless”);

Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1055 (2d Cir.

1985) (post-remand change from significant impact to minor impact was a

“post hoc rationalization unworthy of belief by this Court . . . ”); Stop H-3

Association 740 F.2d at 1453 n.18 (9th Cir. 1984) (Improper to consider a

technical study that was not before the agency at the time of its initial

decision); State of Louisiana v. Lee, 635 F. Supp 1107, 1116, 1123 (E.D. La.

1986) (remand for reconsideration had been allowed; on subsequent judicial


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review the court found the documents produced on remand to be post hoc

rationalizations); Western Watersheds Project v. Rosenkrance, 2011 U.S. Dist.

LEXIS 1288 at *21-22 (D. Idaho, January 5, 2011) (“[P]ost-hoc

rationalizations and after-the-fact studies do not satisfy NEPA’s “hard look”

requirement for the decisionmaker.”).

As noted (repeatedly) above, Defendants have attempted to use their

litigation declarations and their post-decisional PA12 -- a post complaint, post

decisional, and post hoc rationalization of the most blatant sort -- to persuade

this Court that they have undecided what was decided in the Record of

Decision. Having failed in its attempt to reopen the record (“voluntary

remand”) and stay the case, the Navy now seeks to go further and dismiss

Plaintiffs’ entire lawsuit, based on the erroneous premise that the Record of

Decision did not really record a decision. Its effort is rebutted by its own

regulations and its own record and deserves rejection.

II. Defendants’ Other Arguments for Dismissal Are Equally Unavailing

A. Defendants’ Argument on Ripeness Is Misplaced

The Government inexplicably relies on Ohio Forestry Ass’n, Inc. v.

Sierra Club, 523 US 726 (1998) (Motion at 23, 24) to argue that this case is

12 Plaintiffs Guam Preservation Trust, We are Guahan and National Trust for Historic Preservation, all consulting parties to the PA, refused to sign the document as finalized. See final PA signature block (showing the organizations listed as consulting parties, but without signatures). See Def’s Motion to dismiss, Exh. C at 53, 56, 61.

We further invite the Court’s attention to the Navy’s confusion evidenced in the context of its own PA and Motion to Dismiss filed with this court, wherein the latter (at page 5) quotes the former (at page 15) to say that the PA consultation will address the location of ranges “within any area that may be selected in the Navy [ROD].” (Italics and brackets in the original.) But -- the ROD had already been signed -- five months before the PA! See pp. 2-3, supra.


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not ripe -- but -- Ohio Forestry stands for the precise opposite proposition in

NEPA cases (and in this case 11 of the 13 claims are under NEPA).

Defendants quote Ohio Forestry in its discussion of ripeness under the

National Forest Management Act (NFMA). What they omit -- not entirely

candidly -- is what the Supreme Court had to say about ripeness under NEPA.

As noted earlier in this brief (at p. 24), the Court stated:

“Nor does the Plan, which through standards guides

future use of forests, resemble an environmental impact

statement prepared pursuant to NEPA. That is because in

this respect NEPA, unlike NFMA, simply guarantees a

particular procedure, not a particular result . . . Hence a

person with standing who is injured by a failure to

comply with the NEPA procedure may complain of that

failure at the time the failure takes place, for the claim

can never get riper.” (Emphasis added.)

Ohio Forestry at 737; accord: Citizens for Better Forestry v. U.S. Department

of Agriculture, 341 F.3d 961, 977 (9th Cir. 2003) (finds that a NEPA challenge

was ripe because the injury occurred when the allegedly inadequate EIS was

promulgated); Kern v. BLM, 284 F.3d 1062, 1070-71 (9th Cir. 2002) (same;

because plaintiffs bring a NEPA challenge to an EIS, they are able to show an

imminence of harm to the plaintiffs and a completeness of action by the

agency; an injury under NEPA occurs when the allegedly inadequate EIS was

promulgated); see also: Sierra Forest Legacy v. Sherman, 646 F.3d 1161,

1179 n. 2 (9th Cir. 2011) (per curiam) (NEPA challenge ripe); Laub v. U.S.

Dept. of the Interior, 342 F.3d 1080, 1089-91 (9th Cir. 2003) (same). Courts’

treatment of the NHPA, like NEPA a procedural statute, is governed by the


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same rules of ripeness as NEPA. Dugong v. Gates, 543 F.Supp.2d 1082, 1096

(N.D. Cal. 2008); see also: Nulankeyutmonen Nkihtaqmikon v. Impson, 503

F.3d 18, 32-33 (1st Cir. 2007).

The Supreme Court and the 9th Circuit have made clear that this NEPA

case is ripe.

Defendants rely on two further cases which give them no support.

Hawaii County Green Party v. Clinton, 124 F.Supp.2d 1173 (D.Hi 2000),

involved a challenge not to Final EIS or to a ROD, but to a Draft EIS. The

Court most properly held that the matter was not yet ripe. Id. at 1199. A draft

EIS is but one stage in the NEPA process (40 CFR § 1502.9(a)), which is then

followed by public comments (40 CFR Part 1503), by a Final EIS (40 CFR §

1502.9(b)), and by the ROD (40 CFR § 1505.2). The plaintiffs’ attempt to

intercept the incomplete NEPA process was properly rebuffed.

Defendants also rely on Sierra Club v. Nuclear Regulatory Commission,

825 F.2d 1356 (9th Cir. 1987), a case which arose under the Hobbs Act rather

than the APA, NEPA, or the NHPA. There plaintiffs sought judicial relief

during the middle of the NRC’s administrative process -- prior to the

conclusion of the administrative briefing schedule and prior to the

administrative hearing. The Court, understandably, did not go along with this

attempt to interrupt a scheduled public administrative process. Here there is

no ongoing NEPA process. The ROD completed it.

B. There is No Occasion for the Court to Exercise Its Discretion to Dismiss Because Plaintiffs Would Be Injured Now if Defendants Were Successful in Dismissing This Lawsuit

Defendants argue that despite the law on RODs, the Navy has not really

taken final agency action because some sort of further action on their part is


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necessary before the Navy can do something which would injure Plaintiffs’

interests.

Not so:

• Defendants can act at Pågat. Having chosen to site the firing ranges at Pågat/Route 15 in one of two alternative sites, there is

nothing to stop the Navy from beginning work on the ground that

is common to both sites. (See: Complaint, Att. B; see also: AR

243971 to see the considerable degree to which the two Pågat

sites overlap. ) If this case is not pending, Plaintiffs will not be

able to seek relief without filing the same litigation again.

• Defendants can act at one of the alternative sites. Much of the back and forth between the parties over interim action has hinged

on assurances that Defendants will not subvert the outcome of the

NEPA process by commencing ground disturbing activities at one

of the alternative (non Pågat) sites, thereby diminishing or

eliminating that site from consideration in a renewed NEPA

process. (See, e.g., Order Denying Defendant’s Motion for

Voluntary Remand and Stay at 6; see also: Declaration of Joseph

Ludovici in Support of Motion to Dismiss at ¶ 23; Declaration of

Captain Don Chandler in Support of Motion to Dismiss at ¶¶ 12-

25). Again, if this case is not pending, Plaintiffs would be unable

to seek immediate relief without refiling a new lawsuit (with the

same allegations), if Defendants proceeded with ground-

disturbing activities at any of the potential alternative sites set out

in Plaintiffs’ complaint.

• And more generally, the injury to Plaintiffs under NEPA is not only the on-the-ground injury. It is also the injury to the


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procedural rights created by the Act. The gravamen of the

complaint is the inadequate EIS, and that is a final document,

made so by execution of the ROD. See: Jones v. District of

Columbia Redev. Land Agency, 499 F.2d 502, 512 (D.C. Cir.

1974), cert. denied, 423 US 937 (1975) (“[T]he harm with which

courts must be concerned in NEPA cases is not, strictly speaking,

harm to the environment, but rather the failure of decision-makers

to take environmental factors into account in the way that NEPA

mandates.”); Western Watersheds Project v. Kraayenbrink, 620

F.3d 1187, 1199 (9th Cir. 2010) (procedural harm constitutes

injury in fact). As the Supreme Court has put it, “[A] person . . .

injured by the failure to comply with the NEPA procedure may

complain of that failure at the time the failure takes place, for the

claim can never get riper.” Ohio Forestry Association, Inc. v.

Sierra Club, 523 U.S. 726, 737 (1998).


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CONCLUSION

Plaintiffs respectfully request that the Court deny the Navy’s Motion to

Dismiss the Complaint and take the actions responsive to the Navy’s

November 15 filing which are proposed in the Preface to this document.

Dated: November 18, 2011

Respectfully submitted,

Paul W. Edmondson Attorney for Plaintiff National Trust for Historic Preservation 1785 Massachusetts Avenue, NWWashington, DC 20036 Telephone: (202) 588-6026 Facsimile: (202) 588-6272

/s/ Nicholas C. Yost Nicholas C. Yost (CA Bar No. 35297)(pro hac vice) Matthew G. Adams (CA Bar No. 229021)(pro hac vice) SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Plaintiffs Guam Preservation Trust, National Trust for Historic Preservation, We Are Guåhan, Joseph E. Quinata, Dr. Marilyn Salas, Julian Aguon and Jillette Leon-Guerrero

Brian Turner Attorney for Plaintiff National Trust for Historic Preservation 5 Third Street, Suite 707 San Francisco, CA 94103 Telephone: (415) 947-0692 Facsimile: (415) 947-0699

/s/ Carl C. Christensen Carl C. Christensen 1612 Kamole Street Honolulu, HI 96821 Telephone: (808) 373-3457 Attorney for Plaintiffs Guam Preservation Trust, National Trust for Historic Preservation, We Are Guåhan, Joseph E. Quinata, Dr. Marilyn Salas, Julian Aguon and Jillette Leon-Guerrero


- I -

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of LR7.5 (b) and (e)

because the brief contains 8,864 words, excluding the parts of the brief

exempted by local rule. This brief complies with the typeface requirements of

LR10.2 (a) because this brief has been prepared in proportionately spaced

typeface using Microsoft Word 2003, in 14-point Times New Roman.

/s/ Nicholas C. Yost


- II -

CERTIFICATE OF SERVICE

I certify that on November 18, 2011, I electronically filed the above

document with the Clerk of the District Court using its CM/ECF system,

which will send notice of electronic filing to the following:

SAMANTHA KLEIN FRANK U.S. Department of Justice CHARLES R. SHOCKEY U.S. Department of Justice - ENRD DERRICK K. WATSON Office of the U.S. Attorney

Attorneys for Defendants Department of Defense Department of the Navy Joint Guam Program Office Naval Facilities Engineering Command, Pacific David Bice Jacqueline Pfannenstiel Katherine Gregory Kyle Fujimoto Ray Mabus Robert Gates

/s/ Kimberly J. Soto Kimberly J. Soto


Case 1:10-cv-00677-LEK -RLP Document 84-1 Filed 11/18/11 Page 1 of 34 PageID #: 1241

case 1:10-cv-00677-lek -rlp document 84 filed 11/18/11

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