Groups Intend to Sue Navy, Feds

Published by Saipantribune.com on Feb. 10, 2016

By Dennis B. Chan

Environmental groups from the Northern Marianas Islands and nation-wide intend to challenge the Department of Navy and the U.S. Fish and Wildlife Service over an alleged failure to comply with Endangered Species Act and for ongoing live-fire and sea training in the Marianas Islands range, according to a notice of intent to sue these agencies dated Feb. 5.

“The Navy and the Service have violated and remain in ongoing violation of the ESA,” said David Henkin, an Earthjustice attorney, in the letter.

“If these violations of law are not cured within 60 days, [the groups] intend to file suit for declaratory and injunctive relief.”

Henkin’s letter appears to pin the grounds of a lawsuit on the Navy’s and Service’s alleged failure to reconsider the expansive military project in light of newly declared and threatened species in the Marianas.

The Navy fails “to insure that their military project will not likely jeopardize the continued existence of newly listed threatened or endangered species,” Henkin said.

The argument appears to center on the Navy’s continued and authorized training within the Marianas despite a lack of consultation with the wildlife service, after the Service’s declared 23 plant and animal species as endangered or threatened last October.

This consultation with the Service is required pursuant to the Endangered Species Act.

Henkin quotes the Service’s own words in their final rule on the matter: “The [Marianas Islands Training and Testing area] opens up every island within the Mariana Archipelago as a potential training site…which subsequently may result in negative impacts to any number of the 23 species addressed.”

The Service said the proposed actions include increasing in “training activities in Guam, Rota, Saipan, Tinian, Farallon de Medinilla (increase in bombing), and Pagan. Likely negative impacts include, but are not limited to, direct damage to individuals from live-fire training and ordnance, wildlife resulting from life-fire and ordnance, direct physical damage (e.g. trampling by humans, helicopter landing, etc.) to individuals, and spread of nonnative species.”

“Additionally, water purification training is proposed for all these islands, exept for Farallon de Medinilla, which may be particularly damaging to the Rota blue damselfly,” the Service said.

The Service’s final decision, Henkin said, “makes clear” that the Navy training may affect the newly listed species, “triggering the obligation to reinitiate consultation.”

“This notice letter was prepared in good faith, after reasonably diligent investigation,” Henkin said. “If you believe that any of the foregoing is factually inaccurate or erroneous, please notify us promptly.”

Comments from the Department of Navy were not available as of press time, but a Navy spokesperson said a statement would be forthcoming today.

Large picture frustrations

The potential lawsuit taps into larger frustrations over military projects—like firing ranges, a divert airfield, the proposed leasing of the entire island of Pagan, and the relocation of thousands of Marines to Guam from Japan—that military planners have issued and approved within the Marianas Islands range in recent years.

“Look at what is happening here,” Peter J. Perez, co-founder of the advocate group Pagan Watch, said yesterday. “A department of the federal government, not the leadership of the United States, not the President and the Congress, but a department, somehow has the right to unilaterally decide to turn a state’s territory into the world’s largest live-fire training range.”

“This is a severe encroachment on the territory of Guam and the CNMI,” Perez said. Pagan Watch is one of the handful groups attached to the notice to sue the Navy.

For the Marianas Islands Training and Testing area, or MITT, the Navy expanded a training area encompassing some 500,000 square nautical miles of ocean into an expansive 980,000-some square miles—an area that advocates have lamented is larger than the states of Washington, Oregon, California, Idaho, Nevada, Arizona, Montana, and New Mexico combined.

In 2013, the late CNMI governor Eloy Songao Inos called on the Navy to conduct better baseline studies, grant more marine protection areas, and asked that undersea training not be done around certain island seamounts believed to be plentiful with marine life.

But in their formal response to Inos last May, the Navy said they could not impose these “geographic limitations on training and testing activities,” calling it an “impractical burden” to implement and an “unacceptable impact to the effectiveness” of their training.

The Navy approved the undersea ordnance training—inclusive of a reported roughly 300-percent increase of ordnance bombing on Farallon De Medinilla—last August.

Perez said the voices of the CNMI governor, the Senate and the House of Representatives, the mayors, the municipal council, or in other words, the entire local state-level government are all being “ignored.”

“The American citizens who live here—who have said “NO” in a strong and clear voice—are also being disregarded.”

“In fact, the only obstacle to the Department of Defense’s intention to take and bomb our islands and waters is the requirement under federal law that they follow the EIS process that was designed to ensure compliance with federal laws for the protection of the environment and historic assets.”

“Pagan Watch and the other signatories to the letter are determined to not allow the DoD to ignore the EIS process as well. It is all that is standing between us and what the late governor Inos characterized as the “existential threat” of the DoD turning our lands and waters into a giant live-fire range with all the destruction, contamination, and restrictions on the people’s freedoms that come with it,” Perez told Saipan Tribune yesterday.

The February notice of intent to sue lists a total of eight groups from the CNMI, Guam, and Hawaii in the notice to sue.

The attached groups include the Alternative Zero Coalition, Center for Biological Diversity, Fanacho Marianas, Guardians of Gani, Oceania Resistance, Pagan Watch, Tinian Premier Football Club, and Tinian Women’s Association.

The letter was sent to the Department of Defense Secretary Ashton Carter, Navy Secretary Ray Mabus, USFW Service Director Daniel M. Ashe, and Department of Interior Secretary Sally Jewel.