Ninth Circuit Finds No Standing Where Alleged Injury Could Only Be Redressed by Renegotiating Treaty

In Tinian Women Ass’n v. U.S. Dep’t of the Navy, No. 18-16723 (9th Cir. Sept. 20, 2020), the Ninth Circuit affirms dismissal of an environmental-law claim concerning the relocation of American troops from Okinawa, Japan to Guam. Rather than rule on the political question doctrine presented by the Government, the panel rests instead on the lack of Article III standing.

In 2009, the U.S.-Japan Alliance Agreement (“Agreement”) was approved “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.”

Under USA law, the Navy was obliged to prepare an environmental impact statement (EIS) to support the move. Plaintiffs filed in court to block the move, under the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act (“APA”), in particular contending that the Navy “fail[ed] to consider (1) the impact of all mission essential training for Guam-based Marines and (2) stationing alternatives beyond Guam and the CNMI [Commonwealth of the Northern Mariana Islands].” The district court dismissed, finding no liability on the former issue while holding that the latter issue presented a non-justiciable political question.

The panel affirms. It affirms the resolution of the first, procedural claim under the statutes, concluding that the Navy’s action was not arbitrary, capricious, or otherwise an abuse of discretion. On the second issue of whether the Navy considered other stationing alternatives, the panel sidesteps the standing issue and instead goes right to standing. The panel holds that plaintiffs do set forth an injury-in-fact, i.e., “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.”

Despite a concrete injury, though, the panel holds that there can be no redressability. Formally, the panel identifies a remedy available to plaintiffs: ordering a “procedurally-sound EIS” that would weigh the “numerous interests on Guam and the CNMI.” But the panel holds that the formal remedy would not affect a substantial change, owing to the limits placed on the USA by the treaty. “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 … without upsetting the agreement to relocate troops from Okinawa to Guam.”

The panel allows that the treaty has been amended in the past, yet the relief sought in this case would target the very core of the agreement. “The resolution …  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 … 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.” Courts lack judicial power to impose such demands on the executive.

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