Tinian Women Association v. Usdn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TINIAN WOMEN ASSOCIATION; No. 18-16723
GUARDIANS OF GANI; PAGANWATCH;
CENTER FOR BIOLOGICAL DIVERSITY, D.C. No.
Plaintiffs-Appellants, 1:16-cv-00022
v.
OPINION
UNITED STATES DEPARTMENT OF THE
NAVY; RAY MABUS, Secretary of the
Navy; UNITED STATES DEPARTMENT
OF JUSTICE; UNITED STATES
DEPARTMENT OF DEFENSE; PATRICK
SHANAHAN, Acting United States
Secretary of Defense,
Defendants-Appellees.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding
Argued and Submitted February 3, 2020
Honolulu, Hawaii
Filed September 18, 2020
2 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
Before: M. Margaret McKeown, Andrew D. Hurwitz, * and
Bridget S. Bade, Circuit Judges.
Opinion by Judge McKeown
SUMMARY **
Environmental Law / Standing
In an action challenging the U.S.-Japan Alliance
Agreement, concerning the relocation of troops from
Okinawa, Japan to Guam, and the mandated environmental
reviews, the panel: (1) affirmed the district court’s summary
judgment in favor of the U.S. Department of the Navy on
plaintiffs’ procedural claim under the National
Environmental Policy Act (“NEPA”); and (2) affirmed the
dismissal, but for lack of standing, rather than on the basis
of political question, of plaintiffs’ claim that the Navy failed
to consider relocation alternatives beyond Guam and the
Commonwealth of the Northern Mariana Islands (“CNMI”).
Plaintiffs alleged two procedural claims under NEPA
with respect to the Navy’s decision to relocate troops to
Guam and to construct training facilities on the CNMI. First,
plaintiffs argued that the two decisions were “connected
actions” that must be assessed in a single environmental
*
Judge Hurwitz was drawn to replace Judge Farris. He has read the
briefs, reviewed the record, and listened to the audio of the oral
argument.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 3
impact statement (“EIS”). Second, plaintiffs argued that
“cumulative impacts” must be addressed in the Relocation
EIS. The panel affirmed the district court’s rejection of these
claims.
First, the panel held that the Marines’ relocation and the
placing of training facilities on Tinian Island in the CNMI
were not connected for the purposes of an EIS. Although the
two actions have overlapping goals, where Marines on
Guam will certainly take advantage of the training ranges
and facilities in the CNMI, they also have independent
utility.
Second, the panel held that the Navy’s deferral of
consideration of the cumulative impacts to a future EIS was
not error. By issuing a notice of intent to prepare an EIS for
the training and ranges in the CNMI, the Navy has impliedly
promised to consider the cumulative effects of the
subsequent action in the future EIS and the Navy should be
held to that promise.
The panel held that plaintiffs’ remaining claim – that the
Navy failed to consider stationing alternatives beyond Guam
and the CNMI for Marines relocating out of Okinawa – also
failed. Specifically, the panel held that plaintiffs’ claim was
not redressable by the judicial branch and must be dismissed
for lack of standing. Plaintiffs correctly identified the right
to a procedurally-sound EIS that serves as a safeguard to its
numerous interests on Guam and the CNMI; but plaintiffs
did not – and could not – show that this right, if exercised,
could protect its concrete interests, because doing so would
require the panel to order the Navy to modify or set aside the
Agreement between the United States and Japan.
4 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
Finally, the panel held that the district court did not err
in concluding that plaintiffs waived a third claim – that
defendants failed to supplement the Relocation Final EIS.
COUNSEL
David L. Henkin (argued), Earthjustice, Honolulu, Hawaii,
for Plaintiffs-Appellants.
Thekla Hansen-Young (argued), Andrew C. Mergen, Joshua
Wilson, and Taylor Ferrell, Attorneys; Eric Grant, Deputy
Assistant Attorney General; Jeffrey Bossert Clark, Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice; Craig D.
Jensen, Associate General Counsel (Litigation); Cara M.
Johnson, Attorney; United States Department of the Navy,
Washington, D.C.; for Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge:
This case surfaces in the wake of the Navy’s decision to
relocate troops from Okinawa, Japan to Guam, pursuant to
treaty obligations with Japan. In October 2005, the United
States and Japan signed the U.S.-Japan Alliance Agreement
(the “Agreement”) to “adapt [their] alliance to the changing
regional and global security environment,” resulting in the
determination to move Marine troops from Okinawa to
Guam. The Agreement was followed by a series of
mandated environmental reviews, challenged here by the
Tinian Women Association and other environmental groups
(collectively, “TWA”). The district court properly granted
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 5
summary judgment in favor of the Navy on TWA’s
procedural claim under the National Environmental Policy
Act (“NEPA”) because the Navy’s action was not arbitrary,
capricious, or otherwise an abuse of discretion. The district
court dismissed as a political question TWA’s claim that the
Navy failed to consider relocation alternatives beyond Guam
and the Commonwealth of the Northern Mariana Islands
(“CNMI”). We affirm that dismissal, but for lack of
standing, concluding that the claim is not redressable
because it would require renegotiation of the treaty.
BACKGROUND
The U.S.-Japan Alliance Agreement. The Agreement
aims 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. 1 The two countries also planned to expand bilateral
training throughout Japan and the Pacific. The United States
and Japan memorialized these commitments in a February
2009 treaty that specifically provides that the “Government
of the United States of America shall consult with the
Government of Japan in the event that the Government of
the United States of America considers changes that may
1
A Marine Expeditionary Force (MEF) is the largest Marine Air
Ground Task Force group, and is comprised of a MEF Headquarters
Group, Marine Division, Marine Air Wing, and Marine Logistics Group.
Over time the number of Marines fluctuated between 8,000–8,500.
6 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
significantly affect facilities and infrastructure funded by
Japanese cash contributions.”
In preparation for relocation of the Marines forces, the
Navy established the Joint Guam Program Office (“JGPO”)
to “facilitate, manage, and execute requirements associated
with the rebasing of Marine Corps assets from Okinawa to
Guam.” Meanwhile, the Department of the Navy instructed
the Marines to identify operational and training requirements
for the relocating troops, both on Guam and the CNMI.
Environmental Impact Statements. Before moving
forward with projects that can significantly alter the
environment, federal agencies are obligated to produce an
environmental impact statement (“EIS”). With these
requirements in mind, the JGPO began defining the EIS’s
scope: to study the effects of relocating approximately 8,000
Marines and their dependents from Okinawa to Guam
(“Relocation EIS”). In 2007, the Navy published a notice of
intent to prepare an EIS, explaining that “[t]he purpose and
need of the proposed action is to fulfill U.S. government
national security and alliance requirements in the Western
Pacific Region.”
Internal debate about the scope of the relocation roiled,
as the Marine Corps and the United States Pacific Command
consistently emphasized that individual and small unit
training facilities were inadequate for the Marines to meet
training requirements. But the JGPO believed that larger
scale combined-level training was “beyond the scope of
what [it] [wa]s required to build for the relocating forces,”
and declined to plan for such training unless it would not
materially impact the environmental review process.
The Secretary of the Navy resolved the clash in 2009.
He acknowledged that “[t]he current scope of the
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 7
[Relocation] EIS is unacceptable, does not meet USMC
requirements, and potentially jeopardizes USMC Core
Competencies in the Pacific.” But the Secretary ultimately
concluded that the Marines’ proposal to establish expanded
training capabilities in the region required a “holistic
assessment” of troop levels that should not be undertaken “in
a series of ‘knee-jerk’ decisions that may not necessarily be
tied together or complementary with long term U.S.
strategy.”
The Navy issued the Relocation EIS in July 2010, which
addressed the relocation of approximately 8,000 Marines to
Guam, including the development and construction of
training facilities on Guam and Tinian, one of the three
principal islands of the CNMI. The EIS analyzed several
proposed training facilities, including one live-fire training
range complex on Guam, and four training ranges on Tinian.
The five ranges met individual and small unit training needs,
“replicat[ing] existing individual-skills training capabilities
on Okinawa.” Because the ranges “[did] not provide for all
requisite collective, combined arms, live, and maneuver
training,” the relocated Marines would need to travel to
“sustain core competencies.” Noting that the Marine Corps
ultimately hoped to conduct integrated core competency
training, the EIS explained that such a decision, along with
the “suitability of CNMI to meet” this need, would be
reviewed in 2010 during the Quadrennial Defense Review.
Two months later, the Navy published its 2010 Record
of Decision declaring its intent to proceed with the relocation
to Guam and associated training on Tinian. The Navy
deferred its decision to construct the live-fire training facility
on Guam until it completed analysis under the National
Historic Preservation Act.
8 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
In February 2012, the Navy issued an additional Notice
of Intent for a supplemental EIS (“Relocation SEIS”) to
“evaluate the potential environmental consequences that
may result from construction and operation of a live-fire
training range complex and associated infrastructure on
Guam.” The Relocation SEIS was to address five alternative
sites for the live-fire training range complex on Guam,
though its scope was modified in October 2012 to
accommodate a reduction in the number of Marines
relocating to Guam. In 2015, the Navy issued a Record of
Decision for the Relocation SEIS that approved the
construction of a live-fire training range complex on Guam
at a different location.
While the Navy analyzed new challenges to the Guam
relocation, it published yet another Notice of Intent, the
CNMI Joint Military Training Environmental Impact
Statement/Overseas Environmental Impact Statement
(“CJMT Draft EIS”). The draft proposed creating additional
range and training areas within the CNMI to address
“unfilled unit level and combined level military training
requirements in the Western Pacific.” Although the Pacific
Command previously determined that the CNMI was the
“prime location to support forces” throughout the Pacific
Command Area of Responsibility, it also concluded that the
CNMI had the “greatest number of training deficiencies.”
The Pacific Command proposed four training range
complexes on Tinian and two training range complexes on
Pagan, a volcanic island to the north. A deluge of comments
followed, and the Navy decided to issue a revised draft with
new alternatives and studies. At the time of this appeal, the
CJMT Draft EIS was undergoing revision.
Challenges to the Records of Decision (“ROD”). TWA
filed suit to challenge two final agency actions: the
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 9
Relocation EIS, memorialized in the 2010 ROD, and the
Relocation SEIS, memorialized in the 2015 ROD. Seeking
declaratory and injunctive relief, TWA alleged the Navy
violated NEPA and the Administrative Procedure Act
(“APA”) by failing to consider (1) the impact of all mission
essential training for Guam-based Marines and (2) stationing
alternatives beyond Guam and the CNMI. The district court
granted summary judgment on the first claim in favor of the
Navy and dismissed TWA’s second claim. The court also
concluded that the group waived a third claim challenging
the Relocation EIS, and denied leave to amend.
ANALYSIS
I. TWA’s Procedural Claims Under NEPA
TWA launched a two-pronged attack on the Navy’s
decision to relocate troops to Guam and construct training
facilities on the CNMI. First, it argues the two decisions are
“connected actions” that must be assessed in a single EIS.
See 40 C.F.R. § 1508.25(a)(1). 2 Alternatively, TWA
contends that because the proposed training sites discussed
2
In a footnote, TWA argued that the district court erred in not
considering the Siting Study as either part of the administrative record
or as extra-record evidence to support this part of its claim. The district
court did not abuse its discretion in concluding that the administrative
record is complete and excluding this extra-record evidence. See Sw. Ctr.
for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447 (9th
Cir. 1996). TWA failed to demonstrate that the Navy actually considered
the Siting Study; the passing reference in the notice of intent is
insufficient. See Pinnacle Armor, Inc. v. United States, 923 F. Supp. 2d
1226, 1241 (E.D. Cal. 2013) (“[A]n extra-record document that is cited
in the agency’s actual decision document indicates consideration of the
contents of the extra-record document by the decision-maker.
Otherwise, a mere reference in the administrative record is insufficient.”
(internal quotation marks, emphasis, and alteration omitted)).
10 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
in the CJMT Draft EIS will magnify the environmental
effect of relocating Marines to Guam, these “cumulative
impacts” must be addressed in the Relocation EIS. See id.
§ 1508.25(a)(2).
We review de novo the district court’s grant of summary
judgment. See Lands Council v. McNair, 629 F.3d 1070,
1074 (9th Cir. 2010). We must uphold the agency’s action
“unless it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Id. (quoting
5 U.S.C. § 706(2)(A)).
TWA is correct that connected actions must be
considered in a single EIS. Actions are connected if they
“[a]utomatically trigger other actions which may require
environmental impact statements,” “[c]annot or will not
proceed unless other actions are taken previously or
simultaneously,” or “[a]re independent parts of a larger
action and depend on the larger action for their justification.”
40 C.F.R. § 1508.25(a)(1). However, NEPA does not
require an agency to treat actions as connected if they have
independent utility and purpose. Great Basin Mine Watch v.
Hankins, 456 F.3d 955, 969 (9th Cir. 2006). For instance,
“[w]hen one of the actions might reasonably have been
completed without the existence of the other, the two actions
have independent utility and are not ‘connected’ for NEPA’s
purposes.” Id. This is true even where each action might
“benefit from the other’s presence,” Nw. Res. Info. Ctr. v.
Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1068 (9th Cir.
1995) (citation omitted), or where the actions have
“overlapping, but not co-extensive goals,” Pac. Coast Fed’n
of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1098 (9th
Cir. 2012).
We conclude that the Marine relocation and the placing
of training facilities on Tinian are not connected for the
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 11
purposes of an environmental impact statement. The
Relocation EIS lays out multiple reasons for the relocation
of Marines from Okinawa to Guam: positioning troops to
defend the United States and its Pacific territories, providing
a powerful presence in the Pacific region, fulfilling a
commitment to Japan, and defending American, Japanese,
and other allies’ interests. Meanwhile, the CJMT Draft EIS
explains the rationale for placing range and training facilities
on Tinian and Pagan: they would “reduce joint training
deficiencies for military services” and be able to “support
ongoing operational requirements, changes to U.S. force
structure, geographic repositioning of forces, and U.S.
training relationships with allied nations.”
Although the two actions have overlapping goals—
Marines on Guam will certainly take advantage of the
training ranges and facilities in the CNMI—they also have
independent utility. As the district court noted, “the national
security and defense goals of the Guam relocation and CJMT
proposals are ‘overlapping,’ but they are not ‘co-extensive.’”
See Pac. Coast Fed’n of Fishermen’s Ass’ns, 693 F.3d
at 1098. Nor can we conclude that it would be arbitrary or
irrational for the Marines to relocate to Guam and receive
part of their required training elsewhere—especially given
the current nature of the Marines’ training in Okinawa.
While it may be more convenient for the Marines to have
these training facilities closer, there is no evidence showing
they must be.
TWA also argues the Navy violated NEPA’s mandate
that an EIS must consider cumulative impacts. A
“cumulative impact” is “the impact on the environment
which results from the incremental impact of the action
when added to other past, present, and reasonably
foreseeable future actions regardless of what agency
12 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
(Federal or non-Federal) or person undertakes such other
actions.” 40 C.F.R. § 1508.7; see Ecology Ctr. v.
Castaneda, 574 F.3d 652, 666 (9th Cir. 2009). The rationale
for evaluating cumulative impacts together is to prevent an
agency from “dividing a project into multiple actions” to
avoid a more thorough consideration of the impacts of the
entire project. Native Ecosystems Council v. Dombeck,
304 F.3d 886, 894 (9th Cir. 2002) (citation omitted). TWA
does not face an “onerous” burden and “need not show what
cumulative impacts would occur.” Te-Moak Tribe of W.
Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 605
(9th Cir. 2010). Instead, it needs to show “only the potential
for cumulative impact.” Id.
The district court found TWA met this low burden, but
rather than forcing the Navy “to reopen the environmental
impact statements related to the relocation efforts,” the
district court reasonably concluded that the Navy “may
address any cumulative impacts in the environmental impact
statement for the proposed range and training areas on
Tinian and Pagan in [the CJMT Draft EIS].” TWA argues
this deferral to a future EIS was in error. We disagree.
We have consistently held that agencies can consider the
cumulative impacts of actions in a subsequent EIS when the
agency has made clear it intends to comply with those
requirements and the court can ensure such compliance. For
example, in Northern Alaska Environmental Center v.
Kempthorne, we concluded an agency did not violate NEPA
even where it failed to consider the cumulative impacts of an
action for which it had previously issued a notice of intent.
See 457 F.3d 969, 980 (9th Cir. 2006). Because the notice
of intent had “in effect given notice that [the agency would]
consider all impacts,” and would include cumulative impacts
as part of the future EIS, and because the court could hold
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 13
the agency to that promise, it was sufficient for the agency
to address the impacts of the future project “at a later stage.”
Id.; see also Salmon River Concerned Citizens v. Robertson,
32 F.3d 1346, 1357–58 (9th Cir. 1994) (“Having persuaded
the district court that it understands its duty to follow NEPA
in reviewing future site-specific programs, judicial estoppel
will preclude the [agency] from later arguing that it has no
further duty to consider the cumulative impact of [those]
programs.”). By issuing a notice of intent to prepare an EIS
for the training and ranges in the CNMI, the Navy has
“impliedly promised” to consider the cumulative effects of
the subsequent action in the future EIS and the Navy should
be held to that promise. Ctr. for Env’t L. & Pol’y v. U.S.
Bureau of Reclamation, 655 F.3d 1000, 1010 (9th Cir. 2011).
For this reason, we conclude that the Navy’s deferral of
consideration of the cumulative impacts to a future EIS was
not error.
II. TWA’s Claim re Alternatives Beyond Guam and the
CNMI
TWA’s remaining claim—that the Navy failed to
consider stationing alternatives beyond Guam and the CNMI
for Marines relocating out of Okinawa—also fails. Relying
on both constitutional standing and the political question
doctrine, the district court dismissed this claim for a lack of
jurisdiction. Reviewing de novo, we affirm. Corrie v.
Caterpillar, Inc., 503 F.3d 974, 979 (9th Cir. 2007).
Because we resolve this claim on the basis of standing,
we need not reach the political question doctrine. See No
GWEN All. of Lane Cnty., Inc. v. Aldridge, 855 F.2d 1380,
1382 (9th Cir. 1988) (“When both standing and political
question issues are before the court, the court should
determine the question of standing first.”). We note,
however, that there is significant overlap between the
14 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
principles underpinning the redressability prong of our
standing inquiry and the overarching purpose of the political
question doctrine. See Republic of Marshall Islands v.
United States, 865 F.3d 1187, 1192 (9th Cir. 2017)
(“Whether examined under . . . the redressability prong of
standing, or the political question doctrine, the analysis
stems from the same separation-of-powers principle—
enforcement of this treaty provision is not committed to the
judicial branch. Although these are distinct doctrines . . .
there is significant overlap.”).
Article III standing demands that TWA establish: (1) it
has suffered an injury in fact that is concrete and
particularized, and actual or imminent; (2) the injury is fairly
traceable to the challenged conduct; and (3) the injury is
likely to be redressed by a favorable court decision. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
TWA asserts 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. The procedural
requirements that are the cornerstone of NEPA protect these
cognizable interests. See Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 348 (1989) (“NEPA declares
a broad national commitment to protecting and promoting
environmental quality.” (citing 42 U.S.C. § 4331)). In
particular, NEPA requires that agencies analyze reasonable
alternatives to a proposed action in an EIS, see 40 C.F.R.
§ 1502.14, so that public officials can “make decisions that
are based on understanding of environmental consequences,
and take actions that protect, restore, and enhance the
environment,” id. § 1500.1(c).
TWA’s successful showing of a procedural injury
lightens its burden on the remaining Article III standing
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 15
requirements. See Lujan, 504 U.S. at 572 n.7 (The “person
who has been accorded a procedural right to protect his
concrete interests can assert that right without meeting all the
normal standards for redressability and immediacy.”). As a
plaintiff alleging procedural injury, TWA “need[s] to show
only that the relief requested—that the agency follow the
correct procedures—may influence the agency’s ultimate
decision of whether to take or refrain from taking a certain
action.” Salmon Spawning & Recovery All. v. Gutierrez,
545 F.3d 1220, 1226–27 (9th Cir. 2008). But even under this
more lenient standard, TWA is unable to meet its burden.
TWA correctly identifies its right to a procedurally-
sound EIS that serves as a safeguard to its numerous interests
on Guam and the CNMI. But it does not—and cannot—
show that this right, if exercised, could protect its concrete
interests, 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
to TWA without upsetting the agreement to relocate troops
from Okinawa to Guam. Compare Ctr. for Biological
Diversity v. Mattis, 868 F.3d 803, 819 (9th Cir. 2017)
(concluding environmental group’s claims that Navy should
consider modifying base replacement plan were “forward-
looking” and did not “hinge on upsetting” bilateral
agreement with Japan), with Salmon Spawning, 545 F.3d
at 1227 (“[I]f a court were to give the groups the remedy that
they seek . . . the ultimate agency decision of whether to
enter into the Treaty . . . could never be influenced.”).
TWA’s argument is predicated on the belief that its
proposed relief would not discharge the treaty itself, but
rather would alter the United States’ actions within the
16 TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY
treaty’s bounds. Although the agreement between the
United States and Japan has been amended in the past to
decrease the number of troops relocated to Guam, the
resolution TWA seeks 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 TWA seeks 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. As in Salmon Spawning, even if the Navy’s action
was procedurally flawed, “a court could not set aside the
next, and more significant, link in the chain—the United
States’ entrance into the Treaty.” 545 F.3d at 1227. TWA’s
second claim is not redressable by the judicial branch and
must be dismissed for lack of standing.
III. Failure to Supplement Claim
Finally, the parties dispute whether the TWA waived a
third claim—that “[d]efendants failed to supplement the
Relocation Final EIS after the 2012 Roadmap Adjustments
that created ‘substantial changes’ to the proposed action,
such as changes to the exact Marine Corps units that would
be relocated and the full-range of weapons, and training in
the CNMI, that they would need.”
Where a “complaint does not include the necessary
factual allegations to state a claim, raising such a claim in a
summary judgment motion is insufficient to present the
claim to the district court.” Navajo Nation v. U.S. Forest
Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (en banc). The
district court did not err in concluding that TWA waived this
claim. Potentially relevant facts and regulations are
scattered in different parts of the complaint, and a district
TINIAN WOMEN ASS’N V. U.S. DEP’T OF THE NAVY 17
court’s job is not to piece together a jigsaw puzzle of claims.
The ultimate proof is in the pudding: in the delineation of
claims for relief at the end of the complaint, TWA lists only
two—neither of which is a failure to supplement the
Relocation Final EIS.
Because TWA explicitly raised the failure to supplement
claim for the first time in summary judgment briefing, more
than two years after the litigation commenced and six
months after the administrative record was filed, and
because it gave no prior notice to the Navy and requested
leave to amend only after moving for summary judgment,
the district court did not abuse its discretion in denying
TWA’s request for leave to amend. See William Inglis &
Sons Baking Co. v. ITT Cont’l Baking Co., 668 F.2d 1014,
1053 (9th Cir. 1981) (holding that notice is an important
factor in considering whether a late shift in the thrust of the
case prejudices the other party).
AFFIRMED.