ELR Citation: 41 ELR 20221
No(s). 10-00677 (D. Haw. Jun 30, 2011)

A district court, in an underlying NEPA suit, denied the Navy's request for a voluntary remand for further consideration of the future location of a firing range complex in Guam. Plaintiffs argued that a voluntary remand to the agency is only appropriate where either there have been intervening events beyond the agency's control or where the agency has acknowledged that the original decision was incorrect. The Navy, meanwhile, argued that an agency may request remand even without either intervening events or a confession of agency error. In the absence of any controlling authority, the court concluded that, where an agency's motion for voluntary remand does not rely on either new evidence, a change in the law, or an admission of error in the original agency decision, the court has discretion whether to grant or deny the remand. However, the court should not grant remand where the remand may be unwarranted, abusive, arbitrary, capricious or an abuse of the agency's discretion, or where the remand would be untimely. Under the facts of this case, the court concluded that a remand and stay are not appropriate, particularly since defendants are not willing to give plaintiffs their requested opportunities to participate in the remand process.