challenges defendants failure to comply with mandatory procedures under the national environmental policy act prior to making the decision to station thousands of marines on guam a decision with existential consequences for the families who call the nearby i and home in order for marines based on guam to carry out their mission to defend our nation and our allies they will have to conduct highly destructive training with mortars artillery rockets and bombs on  turning them into war zones we seek to compel defendants compliance with their duty under need to consider impacts from the training as well as alternatives that could be accomplished with less environmental harm this appeal raises several  decision and center for biological diversity versus madis in which this court held that neither the standing nor political question were a problem for this court and the lower courts to review defendants compliance with mandatory procedures under another statute in that case the national historic preservation act both cases you know deal with the exact same issue whether when the executive enters into agreements with a foreign country or the federal courts without any power to review compliance with mandatory procedures which is distinguishable from the issue of review of the ultimate substantive decision that the executive agencies make so in the c b d case the court noted that the challenge was not to the location of the alternative air station but whether they had considered the potential impact on the marine life on the do wrong so this  ms different because your st challenge is directly to alternative locations and if the treaties and agreements between the united states and japan decided that issue how would and need to review in this court deciding that the navy has to evaluate different locations not for training that's a separate issue but for the relocation of the marines  that we could order that would change that decision if it isn't fact made at that the twenty level between two nations and is that not in fact a political question so i guess what i'm asking you to explain how  not with alter of station with patients but that's a distinction without a difference here in the reason as follows the basis on which the th circuit decided that case was that this court and the lower court would not be reviewing the ultimate decision about where the for ten meter station would go or whether there would be a relocation for ten the same is true here this is a need to challenge to procedures as to whether or not the navy complied with its process might alter the agency's decision making and they seem to be case that process was not going to change the location of the air station but the court noted that there had been multiple changes in the planning in the design of the air station and iran and that's something that's our position our position is that a reasonable range of station alternatives would consider a number of different alternatives one alternative might be stationing in the area is entirely separate from guam so no marines would be guam but another alternative might include fewer how did we get to the number of five thousand dollars on guam and the rest of the remainder approximately four thousand going to hawaii and australia is never out here because in a way we're talking in the abstract decision to go to law is one that's already been made and then we also have a separate need to challenge about what does it mean once you get there so what i'm having some difficulty with is precisely what would be the remedy you would be granted by the district court i know there's the general equity in your complaint but what precisely would the district court order if your position is adopted well the just report would order we seek both declaratory relief which is that there was a violation of the bill and set aside vacate the record of alternatives pending full compliance with me ok but i'm still somewhat they about what that would mean as a practical matter because doesn't that basically mean on winding the decision that ok now we have to situation with japan we have to do exception our bases and the military has made a decision at least for we're dealing with procedural violations when you're procedural violations we don't need to prove that they will make a difference different decision we just need to prove that they could and then that could be informed by the way so now as a practical matter unwind this decision all the way different stations locations for the marines they looked at why alaska california and walked on u s territory they looked at korea the philippines singapore thailand australia abroad the problem is and the reason why we're in court on  coalition versus rumsfeld where the army was proceeding with bringing an armored brigade to hawaii without ever doing the analysis of alternate station locations and the army made the exact same argument the navy is making here which is i military decision where we put our bases the court has no business interfering with that and the response from this court was yes the ultimate stationing decision is the army's to make and likewise here the ultimate station decision i to make but whether you complied with anybody in the police command the heart of the process is the alternatives analysis where they complied with deepest command to look at reasonable alternatives that concerns the courts and so where does that fit time wise when the agreement with japan well i'd like to if i may your honor just briefly unpack political question versus skinning you maybe would you answer the question st and then you can  we are in two thousand and twenty and the st marine hasn't set foot on guam why because the navy understood its obligation under nepa and under the in h p a to do additional analyses with respect to guam which is why they did they did the supplemental e i a s and they ended up delaying even the beginning of an extraction intil the record decision there which came out in two thousand and fifteen a year after the original agreement with warm i've been with japan said that the relocation should be completed then while they were doing the supplemental e i a s the united states renegotiated the agreement and this is critical for standing standing is analyzed in terms of where things were when plaintiffs filed their complaint quote other locations outside of japan they all still references the the billions of dollars that japan would contribute toward facilities on guam absolutely your honor and so basically the two thousand and nine in two thousand and thirteen agreements or are not agreements to move marines to guam there are agreements that if the united states does pursue you know acts pursuant to the agreement japan will contribute financially to the relocation and that's why you have all the concern in the record about not violating the agreements not because somehow we violate a treaty this is not a treaty it's an executive agreement but not now that we would upset or japanese partners in any respect other then we would lose the money and so if you look at the  a two thousand and nine agreement that said if you want your pan's money marines must go to wam the united states unilaterally decided to change the distribution of forces now they were going to go to hawaii australia and wa an option that the the navy has never examined in any environmental impact statement and back in two thousand and ten they said would not meet the the purpose and need but they did that anyhow and so what we're saying answer the judge made your previous question the range of alternatives needs to consider alternate stationing locations why is it five thousand instead if it is six hundred versus two thousand and they've never done the analysis of a reasonable range of alternatives that need view in our view or happened on remand your honor like any other time that an agency jumps the gun and goes ahead and does the record decision without doing the analysis that meet the demands of the courts declare that they violated need they need to go back  thousand and sixteen the two thousand and thirteen agreement was the one that was in effect and under the two thousand and thirteen agreement the navy is free to place the marines any location outside of japan ok so there is also a document the joint statement of the security consulted consultative committee which predated the two thousand and thirteen agreement with japan which change the language that you've referenced from saying relocate marines from  relocate marines from ho cannot get to other places but the joint statement talks about relocating marines to guam is that document binding on the united states government is it a binding agreement with the nation of japan your honor why not that's just a statement respect to this agreement to relocate the marines off okinawa and you're saying that statement we're not bound by that and we could do something entirely different after we enter that state and japan the well st of all that statement reflects that even when the two thousand and nine agreement in effect saying that marines relocate to guam the united states unilaterally announced to japan in january of two thousand and twelve you know what actually we're going to move some two to hawaii and some to australia alternative station locations we've never considered a need to document so they did they did that under that and then they needed to amend the two thousand and nine agreement to change the language so that they would be able to do to ratify the fact that the agreement now is that marines go to any location outside of of your challenges not that they didn't do an environmental impact statement on the issue of moving the marines to hawaii or australia i don't see that anyone in the brig say i thought your your alternative location argument was based on plac injury for redress ability do i only have two minutes and forty five seconds ok well all i'm going to say then with respect to connected actions is that there are two major problems with the district court's analysis one is the discourse focused on whether there was quote an independent objective to moving marines to guam without having adequate training rather than independent utility there may have been an objective moving bodies off of okinawa moving them to guam but if there was no independent utility it would have been in the words of thomas peterson irrational or unwise to move marines there without training them adequately to do their mission and then the other thing is that the district court assumed that the marines could somehow do their training in some other location the question the record never addresses well what is that location other than the northern marianas other than to need and pog and is nothing in the record to indicate they could go anywhere else statement you're quoting is i believe during the process where the marines were advocating that they wanted to have these training facilities when they have right one but the secretary of navy ultimately denied that and said we'll consider this in a quite draining off review and the marines were not having full access to this training where they were located on okinawa and the record shows that the only place where all of this training was actually available was camp pendleton so that doesn't seem to suggest that moving them to guam would be any different from the training they had available as marines on okinawa they have their training ranges their evil to travel to the mainland japan to do their training if you look at the record the only evidence in the record is the only place that would be feasible for marines to do their training is in the northern marianas there is no other location identified and if there is no rational connection between the facts found and the conclusion reached then this court needs to reverse i'd like to reserve the rest of my time you may challenge the navy's decision to relocate marines to guam but the navy was charged with implementing an international agreement that by its terms required the navy to do so the agreement itself took more than a decade to negotiate and it requires the united states specifically in both the two thousand and nine and the two thousand and thirteen amendment to that agreement to relocate marines to guam  also is required in order to accomplish land returns on okinawa and japan is spending two billion eight hundred million dollars to fund infrastructure on guam it's already spent more than a one billion dollars of that funding and the project the relocating marines to guam will occur no matter whether they receive additional training facilities in the mariano's or not what council said well if you look at it l m r again likely they have to get the marines out of okinawa we know that to get out of japan so that's the essence of agreement and hand to you that two thousand and thirteen agreements says that they're free to place them anywhere without any restriction and it must be to wam is that in correct yes that's incorrect both the two let me just speak st about the two thousand and nine agreement and then i'll talk about the two thousand and thirteen amendments so the guam international agreement which is the two thousand and nine agreement recognized the strategic importance of guam for the forward presence of marines and that was a document that was both signed by japan and the united states and that language appears in the agreement itself the location of guam is also significant because that would demonstrate the united states commitment to security in the area and increase the ability of the united states military to deter  you know deter aggression in the pacific the guam international agreement also defined the relocation specifically as relocating marines to guam and that's at one s c r one hundred and seventy three and if you look and thirteen protocol amending the agreement although it reduced the number of marines moving from ok you know to guam it didn't actually change the definition of relocation so the the agreement the two thousand and thirteen amendment still defines relocation in terms of relocating marines to guam the the international agreement also specifically committed the united states to taking necessary steps to relocate marines to guam and committed the government of japan and to paying two billion eight hundred million dollars to build infrastructure specifically on guam and that language also remains unchanged in the two thousand and thirteen protocol the  and thirteen protocol didn't change the the recognition that was didn't change anyone would recognizing the importance of wa as a strategic location and and in fact if anything it  the scope of something in the northern marianas is is different than saying well somebody you know we do recognize a strategic locale and we recognize that we need marines there and al are recognitions in the agreement but as i understand what they're asking is that because not everyone is going to guam and because there are other alternatives to look out that there should have been an analysis of that before you make the final decision on really the amount of the impact so they're not saying no one should go to guam as i understand so the question is why is not that predicate in their complaint if they did actually only request that nine locations be considered so this argument about reducing the number of marines going to guam and maybe sending more to hawaii and australia that is a new argument that wasn't a reason they're complaining it really hasn't been the focus of their arguments but even setting that aside no and the question of you know it's the overlapping question i think in this case with with respect to both adjustability and political question but specifically with respect to redress the military no amount of additional neap analysis would actually allow the navy to change the location of guam because the location is set out in the guam international agreement and that location wasn't amended by the two thousand and thirteen protocol and the we know that the changes and both the united states government and and the government of japan determining that distributing forces in a more geographically dispersed way would lead to more operational resiliency and political suitability and there's a declaration that cites to portions of the two thousand and thirteen to two thousand and twelve roadmap adjustment or joint statement and that that c r thirty and although it is true that the joint statement isn't binding in the same way that the agreements are binding it does reflect a very high level political commitments between the united states and japan and that don't involve the navy the navy wasn't actually involved in those discussions the  decisions were made between the secretaries of defense and state and their counterparts in japan so an order from the court telling the navy to go back and study locations besides of guam wouldn't actually change anything on the ground because the navy has no discretion to move marines anywhere besides guam you know and obviously the with the specific numbers going to hawaii and australia also two thousand and nine agreement did list that eight thousand marines would go to guam and that number was specifically reached by japan and the united states and unfortunately we don't have the two thousand and twelve roadmap adjustment in the record but we change this agreement in the fact is it doesn't there's a term in the in the agreement itself that says that any changes made to the agreement must be done with consultation with japan and there's no provision that grants either  united states or japan the authority to simply change it without without you know such consultation and agreement the the that the the location of has always remained the consistent location of guam in the page of the record cited to you by the plane of simply demonstrates the reason for that which is that was the most westward location of u s soil in the pacific it minimizes response times as compared to other locations and it also provides the military with the maximum freedom to use the facilities because there is no foreign government interfering or limiting the government's abilities to use those bases and the record also shows that no other foreign nation in the pacific was a willing to permanently have u s forces so that discussion wasn't a part of a of an alternative analysis and traditional nepa sense of the court might usually see but it served to explain the reasoning behind the united states in japan reaching its decision to relocate the marines to guam because the united states decide to relocate fewer than five thousand dollars marines to guam without consultation with japan know the agreement itself says that any changes in the  force composition structure identified in the in the agreement must be done in consultation with the government of japan so the two thousand and thirteen amendment doesn't say five thousand marines the two thousand and twelve joint statement uses that number so you are saying in the two thousand and thirteen agreement we are bound to five thousand marines on guam the two thousand and thirteen agreement does not specifically bind five thousand marines on guam to bind the u s government to five thousand marines on guam but again that that the plaintiffs have never before their reply brief in an argument today think they have never been concerned about the number on guam they've only been concerned about getting of guam entirely and and secondly the change in that number would have to be reached by again high level political negotiations between the united states and japan and the navy really has no say in that so an order ringback from the court would only be directed towards the navy to consider different options and nepa but there is no there is no discretion on the part of the navy to actually change the direction that it received from the secretary know that that distinction is a key difference between this case in the center for biological diversity cases and makes this case much more like the salmon spawning case because in center for biological diversity the court found that the navy did actually have discretion and over how it would construct the base that issue and who and how we would operate the basic issue here the navy has no discretion over the location or the number of marines moving to guam it is simply tasked with implementing the agreement and that is a key distinction and then again a nd distinction between this case in the center for biological diversity case army's ability to transform the stryker brigade in hawaii so the army did in fact again as an in the center for biological diversity case have discretion over that component and it just decided not to study that alternative here the navy has no discretion over this location because it is driven by the international agreement the so for i have a reason either a lack of or in political question is a fairly narrow application of either of those doctrines and the types of decisions that the navy has discretion over are subject to review by this court  for example the nd claim that that is brought by the plaintiffs here which basically boils down to the plaintiffs challenge to the navy's decision concerning what type of training its forces need and that kind of a decision is is granted the highest level of deference by the courts because it depends on the application of military expertise and awaiting of  the real occasion decision and the separate yet to be approved training proposal in the same environmental impact statement because they are connected allegedly connected actions and the fact is both projects have independent utility as they have as i've said the relocation is driven by the international agreement it will go forward for a guard list of whether the a more comprehensive training proposal invision to by the marine corps goes forward or not and if the there is nothing in the record that suggests that the higher level decision makers within the navy thought that the marines could not relocate to go on unless they had that additional training and i would direct to the court to the discussion within the navy between the marine corps and the navy and which ultimately was resolved by the secretary of the navy where the marine corps just wanted additional training but the fact is that training wasn't actually available in okinawa for okinawa based marines for example tanks had not been allowed to be used on the ranges and ok now for decades and so even though they had those ranges there they couldn't use them and they  actually able to get all of the training that they needed in okinawa anyway and ultimately the secretary of the navy decided that the acknowledged the train deficiencies in the pacific but decided that they would be better addressed in a more comprehensive review process called the quadrennial defense review and that it was more important to proceed with the g relocation and that only the minimum amount of training that would be required for the marines on would be considered a part of the relocation option and the minimum amount of training for the marines  individual skills and small unit level training which is going to be occurring on the four ranges in tinian what would that quadrennial defense review decision to and hands the training draft environmental impact statement for i also want to emphasize for the court that the draft environmental impact statement for that more comprehensive training proposal has actually been withdrawn at this point so in fact there is no approved concrete proposal and because there is a new draft environmental impact statement that's being prepared the navy has actually put its decision to construct the four ranges on  hold until the issue of what training will go forward on tinian is resolved plaintiff's argument is that the training facilities on tinian would not be billed absent and sixty three show it contained further discussion of that and explain that the training range is proposing to me and would not only serve united states forces but it would also serve united states allies which would advance international relationships and international training which is a key goal that is different from the relocation itself and this court case law it has made clear that the court only needs to find that one project would go forward that one of the two projects has independent utility they don't both have to have independent utility in order that for them to be evaluated separately here we don't have that issue because we  you know as we've shown both projects have independent utility but if the court were to have some concern it would only have to find that one had independent utility and you know and also this court case law makes clear that simply because one project will benefit from another project doesn't mean that the actions are connected or that they have don't have independent utility i see that i'm out of time if there are no further questions we would ask that the court affirm the judgment of the district court thank you thank you you have forty one seconds pretty hard to say anything in forty one seconds so if you could put two minutes on the clock for the rebuttal time  thank you respect an independent independent utility the decision to relocate marines to go on was made in the two thousand and ten record of decision at that time there was no sea g project there is no evidence in the record that there would have been any additional training done in the northern marianas in the absence of moving five thousand dollars marines to guam there certainly would not be the same level the same tempo and intensity of training and sixty every week marines need to use mortars artillery ranges and landing beaches automated multi purpose range company fire movement range these are things that the marines need to do every week there was an analysis that was done by the the northern marianas would be cost prohibitive inefficient time consuming logistically complicated so at the operative time in two thousand and ten there was no reason to believe that anyone would be travelling from far across the pacific on a weekly basis to be doing this  training other than the one based marines switching gears to political question and redress ability the two thousand and thirteen agreement only says that nine thousand marines need to be moved to locations outside of the united states there's no binding agreement about how many you need to move to guam it's purely a financial agreement there the united states already changed that and said some are going to hawaii and australia they never examined that you need to document they should and that provides redress ability