Kasza v. Browner, s. 96-15535
| Decision Date | 08 January 1998 |
| Docket Number | 96-16047,96-16930 and 96-16933,Nos. 96-15535,96-15537,96-16892,96-16895,s. 96-15535 |
| Citation | 133 F.3d 1159 |
| Parties | 28 Envtl. L. Rep. 20,449, 98 Cal. Daily Op. Serv. 185, 98 Daily Journal D.A.R. 258 Stella KASZA and John Does, Plaintiffs-Appellants, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency, Defendant-Appellee. Stella KASZA and John Does, Plaintiffs-Appellants/Cross-Appellees, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency, Defendant-Appellee/Cross-Appellant. Helen FROST; John Does, Plaintiffs-Appellants, v. William PERRY, Secretary of United States Department of Defense; Anthony Lake; Sheila Widnall, Defendants-Appellees. Helen FROST; John Does, Plaintiffs-Appellants, v. William J. PERRY, Secretary of United States Department of Defense; Anthony Lake; Sheila Widnall, Defendants-Appellees. Stella KASZA and John Does, Plaintiffs-Appellants, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency, Defendant-Appellee. Stella KASZA and John Does, Plaintiffs-Appellants, v. Carol M. BROWNER, Administrator, United States Environmental Protection Agency, Defendant-Appellee. Helen FROST; John Does, Plaintiffs-Appellants, v. William J. PERRY, Secretary of United States Department of Defense; Anthony Lake; Sheila Widnall, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jonathan Turley and Joan Manley, George Washington University, Washington, DC, for plaintiffs-appellants.
J. Carol Williams, James C. Kilbourne, and Robert L. Klarquist, Department of Justice, Washington, DC, for defendants-appellees.
Kevin D. Doty, Lionel Sawyer & Collins, Las Vegas, Nevada, for amicus KLAS, Inc.
Appeals from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. Nos. CV-94-795-PMP, CV-94-00714-PMP.
Before: WOOD, Jr., * RYMER, and TASHIMA, Circuit Judges.
Opinion by Judge RYMER; Concurrence by Judge TASHIMA.
Former workers at a classified facility operated by the United States Air Force 1 brought citizen suits under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6972, against the Air Force (Frost v. Perry ) and the Environmental Protection Agency (Kasza v. Browner ), alleging RCRA violations and seeking to compel compliance with hazardous waste inventory, inspection, and disclosure responsibilities. 2 Finding that the state secrets privilege invoked by the Secretary of the Air Force made discovery and trial impossible,
the district court granted summary judgment in favor of the Air Force in Frost. Frost v. Perry, 161 F.R.D. 434 (D.Nev.1995); Frost v. Perry, 919 F.Supp. 1459 (D.Nev.1996). It dismissed Kasza as moot, since inventory and inspection activities were carried out after the action was filed, and the President exempted the operating location near Groom Lake from any hazardous waste provision that would require disclosure of classified information to any unauthorized person. Kasza v. Browner, 902 F.Supp. 1240 (D.Nev.1995). Although we will remand for further consideration of attorney's fees and a sealing order, we otherwise affirm. 3
Helen Frost, who is the widow of a former worker, and others (proceeding as Does by order of the district court) who worked at a classified operating location near Groom Lake, Nevada, brought a citizen suit pursuant to § 7002(a)(1)(A) of RCRA, 42 U.S.C. § 6972(a)(1)(A). The complaint alleges that the Air Force violated RCRA's federal facility reporting and inventory requirements 4 and committed a number of other violations having to do with the storage, treatment, and disposal of hazardous waste at the site. Frost seeks a declaration that the Air Force failed to perform duties required by RCRA, injunctive relief to restrain the Air Force from incinerating and transporting hazardous wastes in the vicinity of the operating location, civil penalties, and attorney's fees.
Once discovery got underway, the Air Force refused to furnish almost all of the information requested on the ground that it was privileged. Dr. Sheila Widnall, the Secretary of the United States Air Force and head of the Department of the Air Force, invoked a formal claim of military and state secrets privilege with respect to the disclosure of certain categories of national security information associated with the operating location near Groom Lake, specifically including "[s]ecurity sensitive environmental data." The claim of privilege was supported by the Secretary's unclassified declaration as well as a classified declaration, which was submitted for in camera review by the district court. 5 In considering additional requests for discovery, the court also reviewed in camera a classified declaration submitted by Air Force Vice Chief of Staff General Thomas S. Moorman, Jr. The district court determined that the state secrets privilege was properly invoked by Secretary Widnall, and that the privilege, as invoked, covered information requested by Frost even though her need for discovery was compelling.
The Air Force moved for summary judgment on the footing that the privilege effectively barred the presentation of any evidence tending to confirm or disprove that any hazardous waste had been generated, stored, or disposed of at the operating location near Groom Lake and that the presence (now or in the past) of hazardous wastes at the operating location constituted an essential element of all of Frost's claims for relief. The court concluded that Frost could not establish a prima facie case for any of her claims in light of the national security constraints explained in the declarations. Summary judgment was, accordingly, entered in favor of the Air Force.
Meanwhile, Frost sought leave to file an amended complaint, but leave was denied as all of the new claims she wished to assert would be futile. Frost timely appealed.
The related Kasza action against the Administrator of the Environmental Protection Agency, a citizen suit under RCRA The EPA moved for summary judgment based on two unclassified declarations 7 which indicate that from December 6, 1994 to March 10, 1995 (after Kasza was filed), EPA personnel conducted a § 3007(c) inspection of the operating location near Groom Lake; the Air Force had submitted to EPA a final inventory report; and the EPA had completed a final inspection report that was made available to the appropriate (and appropriately cleared) Nevada state officers. The classified inspection and inventory reports were submitted for in camera review by the district court. The EPA also submitted a Memorandum of Agreement between the Air Force and EPA committing both to future RCRA compliance activities for the operating location.
§ 7002(a)(2), 42 U.S.C. § 6972(a)(2), complains that EPA failed to carry out its statutory responsibilities to inspect and conduct inventories at the operating location near Groom Lake, to notify Nevada and the Air Force that they had not provided adequate inventories of environmental information, and to make inspection and inventory information available to the public. 6 The complaint seeks a declaration that EPA has failed to perform acts and duties required by RCRA, and an injunction prohibiting it from violating RCRA's mandatory requirements. In addition, Kasza asks for costs of litigation pursuant to § 7002(e) of RCRA, 42 U.S.C. § 6972(e)
The district court held that any effective relief to which Kasza might otherwise be entitled on her inspection and inventory claims was eliminated by EPA and Air Force's post-complaint performance of the inventory and inspection report of the operating location near Groom Lake. Therefore, the district court dismissed those claims as moot. However, the district court denied the Administrator's motion for summary judgment on Kasza's claim that the EPA violated the public disclosure requirements of RCRA by not making the inspection and inventory reports available. The court held that RCRA itself provides no exception for disclosure of classified information, but instead permits the President to exempt federal facilities from compliance with any or all RCRA requirements pursuant to § 6001(a). 42 U.S.C. § 6961(a). Accordingly, it ruled that the EPA had to comply with § 3007(c) but gave the Administrator time to obtain a Presidential exemption. In response to this ruling, the Administrator in fact obtained, and claimed, a Presidential Exemption from any provision that would require disclosure of classified information to unauthorized persons. As a result, the court denied injunctive relief requiring disclosure of the inspection and inventory reports although it did declare that the Administrator had failed to comply with RCRA's public disclosure requirements.
Kasza timely appealed. The EPA cross-appealed the district court's decision that §§ 3007 and 3016 mandate the public release of classified RCRA inventory and inspection reports unless the President grants an exemption pursuant to § 6001(a).
In related appeals, Frost and Kasza challenge the district court's refusal to disqualify the same team of lawyers from the Environmental Defense Section of the Environment and Natural Resources Division of the Department of Justice (DOJ) from representing both the Air Force and EPA. They also appeal post-judgment rulings that left the transcript of a June 20, 1995 hearing regarding classified material under seal, and that
allowed the Environmental Crimes Section of the DOJ's Environment and Natural Resources Division to seek clarification of the court's "Doe" order without formally intervening under Rule 24 of the Federal Rules of Civil Procedure. Finally, Frost and Kasza each appeal the district court's fee determination in their actions.
Frost's appeal centers around how cases involving the relationship between enforcement of environmental protection...
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