Guam activists urge Ninth Circuit to revive environmental claims against Air Force  

An anti-militarization group protested the Air Force's application for a permit to continue open burning and detonation of hazardous waste munitions near the island’s aquifer and culturally significant fishing areas at Andersen Air Force Base in Guam.

by Candace Cheung, Court House News, October 6, 2023

HONOLULU (CN) — A Guam nonprofit asked a Ninth Circuit panel Friday to reinstate its claims against the U.S. Air Force over the military’s continued practice of setting off waste munitions on a culturally significant Guam beach.

Prutehi Litekyan: Save Ritidian, a Guam organization fighting against the militarization of Guam and native CHamoru lands and culture, claim in a 2022 lawsuit that the Air Force and the Department of Defense violated the National Environmental Policy Act when they submitted an application in 2021 to renew a permit to open detonate around 30,000 pounds and open burn 5,000 pounds of waste munitions.

The organization said that the exposure to materials that made up the munitions — like black powder, red/white phosphorus and tear gas, among other hazardous materials — put nearby reefs and other ecosystems at risk, along with the island’s main aquifer in the north.

U.S. District Judge Frances M. Tydingco-Gatewood dismissed the suit in October 2022, finding Prutehi Litekyan did not have standing to dispute the submission of the application itself, as it was not a final agency action that could have triggered National Environmental Policy Act analysis.

Prutehi Litekyan and the Air Force clashed Friday over whether the decision to submit the application should be considered a final agency decision.

Represented by David Henkin of Earthjustice, Prutehi Litekyan argued there had to have been a deliberative process prior to the submission, and that decision-making process was a final agency action.

“The NEPA applies to continuing activities,” Henkin said, saying that the Air Force didn’t have a “unilateral right” to extend the permit based on prior approvals.

Andersen Air Force Base had first received the permit for hazardous waste munition disposal in the 1980s, after which the military submitted for renewal every three years. The 2021 application remains pending.

U.S. Circuit Judge Eric D. Miller, a Donald Trump appointee, questioned if it was it a final agency action each time the conditions of the permit were implemented.

Miller, along with U.S. Circuit judges Marsha S. Berzon, a Bill Clinton appointee and Lawrence VanDyke, a Trump appointee, circled around hypotheticals on what makes a government’s actions final.

Robert Stockman, arguing for the Air Force and the Department of Defense, said that the Guam organization could not challenge the “nebulous” point of decision that led to the submission of the application.

“The thing that they are trying to challenge is not the thing that leads to consequences,” Stockman said, later adding: “Every time the government thinks something does not make that a final action."

Berzon pushed back, asking, “Is there never a final agency action then? The Air Force can just evade NEPA?”

The panel wondered then if the plaintiff would ever have recourse in this scenario.

Henkin protested that it couldn’t just be a timing issue, and that the plaintiff should not be made simply to wait until the permit is approved or denied.

Prutehi Litekyan: Save Ritidian is also pursuing a complaint against the U.S. Navy for the construction of a new base built in the Ritidian area of Guam.