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A federal judge has agreed to move forward a lawsuit against the U.S. Air Force over the Tarague Beach bomb detonation range after a request from a local activist group. Prutehi Guahan asked Magistrate Judge Heather Kennedy to reconsider an order granting a motion to stay proceedings, citing “serious harm”, but the federal government opposed. Prutehi Guahan, formerly Prutehi Litekyan, filed the suit in 2022, seeking to force Andersen Air Force Base to conduct a deeper environmental analysis before trying to get a new permit to operate the Tarague range. The Tarague range is used to blow up old munitions and ordnances, including those from World War II, found in the community. The lawsuit was revived earlier this year after a ruling from the Ninth Circuit Court of Appeals in February. The case was dismissed by District Court of Guam Chief Judge Frances Tydingco-Gatewood in 2022. Kennedy granted a motion to stay proceedings on Oct. 7, which was before Prutehi Guahan’s deadline to file an opposition, depriving the group the opportunity to present arguments, attorney David Henkin wrote in his motion. The judge, in an Oct. 30 order, wrote the court prematurely granted the motion to stay without giving the plaintiff an opportunity to be heard so a reconsideration is appropriate. She said the case has been pending for more than three years without much progress on the merits of plaintiff’s challenge, although through no fault of the parties. Prutehi Guahan has asserted any further delay adversely affects them because even with a temporary pause in non-emergency open detonations until Dec. 1, 2025, as proposed by the federal government, the Air Force would be allowed to “simply store its hazardous waste munitions ... and then ... blow them all up,” documents state. Kennedy said she found merit in the assertations that an indefinite stay, even with a temporary pause to non-emergency detonations, would harm the plaintiff. The judge said maintaining a stay for an indefinite period is not warranted. She vacated the stay previously granted and ordered the parties to meet and confer to discuss in good faith a new schedule for compiling and serving the draft administrative record. Defendants have argued the court is limited during the federal government shutdown to addressing emergency situations and the case was not an emergency. Kennedy said the court has an obligation to carry out its “constitutional functions” which includes resolving civil cases where there is a threat to the safety of human life or the protection of property. “This case involving environmental contamination threatening human health falls squarely within the category of cases that are excepted,” Kennedy wrote. Defendants have also argued that a pending petition to the Supreme Court of the United States regarding the 9th Circuit decision could move forward and a stay would result in judicial economy. Kennedy found no merit to the argument because they didn’t seek a stay previously when they had a chance to do so. The parties are ordered to file a stipulation on a proposed revised schedule within two weeks of the court order. Kennedy said if defendants can’t meet obligations under a revised schedule because specific employees are furloughed, then they can move the court for an extension, to be supported by a declaration from counsel attesting to the specific facts preventing timely compliance.
