Judge Will Decide Question of Dismissal, Before Merits of Pagat Lawsuit

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Guam – Hawaii District Court Judge Leslie Kobayashi will decide the question of dismissal, before hearing the merits of a lawsuit filed over DoD’s plans to put a firing range complex in the Pagat area.

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.

READ Judge Kobayashi’s Friday Order

But 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.

Read DoD’s brief 

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.”

READ the Preservation Trusts brief

However, in her Friday order, 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.”

That means there is a question about whether or not the  Plaintiffs [the Historic Trusts] have met the “threshold” for filing their lawsuit, and Judge Kobayashi wants to decide that question before moving onto the merits of the lawsuit.

And 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.

The Judge therefore dismissed DoD’s motion for a stay “without prejudice” [a dismissal “without prejudice” allows for re-filing of the stay request in the future] and then ordered DoD to file their motion for dismissal by July 29th.

The latest developments stem from DoD’s May 29th request for a voluntary 90 day remand and stay in the Pagat lawsuit.

READ DoD’s May 29th request for a voluntary remand and stay

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.

DoD said it would then prepare a Supplemental Information Report (SIR) and from that decide whether to prepare a supplemental NEPA report on the firing range complex “before making a final decision regarding the specific site for the live-fire training range complex.”

But the Preservation Trusts opposed that request in their Monday June 13th reply to the Court,  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.

Last Tuesday, [June 14th] Judge Kobayashi said she was inclined to issue the 90 day stay requested by DoD if  DoD agreed to the Preservation Trusts conditions.

READ Judge Kobayashi’s Tuesday June 14th order

DoD did agree to provide a 30-day public comment period, and to provide for public participation as required under NEPA. But they said they couldn’t agree to the second condition, “because portions of those conditions are not appropriate.”

Read DoD’s Thursday June 16th response to Judge Kobayashi’s Tuesday June 14th order

They said DoD “does not currently have funding to acquire property for a live-fire training range complex, and the President’s Fiscal Year 2012 budget does not include a proposal for such funding. Therefore, Defendants do not anticipate that they would undertake any construction-related ground disturbing activities in the Route 15 area during the remainder of Fiscal Year 2011 or in Fiscal Year 2012.”

DoD’s lawyers told Judge Kobayashi during yesterday’s hearing that “if the Court denied the voluntary remand, they [DoD] would file their motion to dismiss on this issue.”

The Judge therefore ordered DoD to file that motion to dismiss “no later than July 29th.”