Guam – Hawaii District Court Judge Leslie Kobayashi today [Thursday June 30th in Hawaii] issued a written order explaining her June 17th decision to reject DoD’s motion for a stay in the Pagat lawsuit and her order for DoD to submit a motion to dismiss.
DoD is one of the defendants in a lawsuit filed by the National Historic Trust, the Guam Historic Trust, “We Are Guahan“, and others. The lawsuit seeks to stop DoD from putting a firing range complex in the Pagat area.
DoD asked for the stay to complete “an assessment to determine whether application of a technical solution … could minimize the physical footprint of the training range complex” at Pagat.
But the Preservation Trusts opposed it, unless 2 conditions were met. First, they said public input must be allowed. Second the Trusts asked for sufficient time to file responses if, in the event a stay were granted, and at the end of that stay DoD were to decide to go ahead with the firing range complex at Pagat.
On June 17th the Judge rejected the stay and ordered DoD to submit a motion to dismiss saying she would issue a written order explaining her decision at a later date.
Today she has, but Judge Kobayashi made clear in her written order today that “at this time, the Court will not make any findings regarding the merits of this case.”
Explanation for rejection of DoD’s Motion for a Stay
In her written order today Judge Kobayashi explained:
“In the Court’s view, Defendants [DoD] want to have their cake and eat it too. They want to conduct the reconsideration process and they 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. The Court finds that, under the facts of this case, a remand and stay are not appropriate at this time.”
“The Court exercises its discretion and DENIES Defendants’ Motion. The denial is without prejudice to the filing of a new motion for remand and stay, if warranted after Defendants’ internal reconsideration process.”
DoD lawyers have argued that no final decision has been made to place the firing range complex in the Pagat area, and even if there were a final decision, DoD has no money this fiscal year or next to build the proposed complex.
Lawyers for the Trusts have responded that “the Navy has clearly made a final decision to site the firing range complex at Pagat … to assert otherwise strains credulity.”
Attorneys for the Trusts cite DoD’s Record of Decision [ROD] “Just what do they think a record of decision is? It records a decision.”
In the one-page bench order issued Friday June 17th, Judge Kobayashi wrote “It appears that there is a threshold issue in this case regarding the finality of the agency [DoD] decision in this matter.”
As a result, the Judge ordered attorneys for DoD to file a motion to dismiss the lawsuit, which is what DoD lawyers said they would do anyway if their motion for a stay was denied.
In her written decision today, Judge Kobayashi provided this explanation of the “threshold” question:
Explination for order to DoD to Submit Motion to Dismiss:
“Although this Court has denied Defendants’ Motion, the Court acknowledges Defendants’ concern that there appears to be a threshold issue in this case regarding the finality of the agency decision in this matter. Defendants represented at the hearing that, if the Court denied the voluntary remand, they would file a motion to dismiss on this issue. The Court agrees that the parties should address the finality issue before proceeding to motions for summary judgment on the overall merits of the case.”
“The Court therefore ORDERS Defendants to file their motion to dismiss on the finality issue by no later than July 29, 2011.”