Cantrell v. City of Long Beach

• Citation: 241 F.3d 674
• Decision Date: 05 February 2001
• Docket Number: No. 98-56940,98-56940
• Parties: (9th Cir. 2001) ANNE CANTRELL, an individual; LOU ANNA DENISON, an individual; KENNETH N. LARKEY, an individual; COLLETTE MARIE MCLAUGHLIN, an individual; RICHARD C. MCLAUGHLIN, an individual; BILLIE C. SCHAEFFER, an individual; GLEN UNDERHILL, an individual; MARGHERITA UNDERHILL, an individual, Plaintiffs-Appellants, v. CITY OF LONG BEACH; CITY OF LONG BEACH, acting by and through its Board of Harbor Commissioners as the Port of Long Beach; UNITED STATES DEPARTMENT OF THE NAVY; JOHN W. HANCOCK; ROY E. HEARREAN; JOHN E. KASHIWABARA, M.D.; GEORGE M. MURCHISON; CARMEN O. PEREZ, Defendants-Appellees, and CALIFORNIA STATE LANDS COMMISSION, Defendant
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 674

241 F.3d 674 (9th Cir. 2001)

ANNE CANTRELL, an individual; LOU ANNA DENISON, an individual; KENNETH N. LARKEY, an individual; COLLETTE MARIE MCLAUGHLIN, an individual; RICHARD C. MCLAUGHLIN, an individual; BILLIE C. SCHAEFFER, an individual; GLEN UNDERHILL, an individual; MARGHERITA UNDERHILL, an individual, Plaintiffs-Appellants, v. CITY OF LONG BEACH; CITY OF LONG BEACH, acting by and through its Board of Harbor Commissioners as the Port of Long Beach; UNITED STATES DEPARTMENT OF THE NAVY; JOHN W. HANCOCK; ROY E. HEARREAN; JOHN E. KASHIWABARA, M.D.; GEORGE M. MURCHISON; CARMEN O. PEREZ, Defendants-Appellees, and CALIFORNIA STATE LANDS COMMISSION, Defendant.

No. 98-56940

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 6, 2000

Filed February 5, 2001

[Copyrighted Material Omitted] Richard I. Fine, Los Angeles, California, for the plaintiffs appellants.

Dominic T. Holzhaus, Long Beach, California, and M. Katherine Jensen, Rutan & Tucker, Costa Mesa, California, for defendant-appellee City of Long Beach.

John K. Rubiner and Eliot Krieger, U.S. Attorney's Office, Los Angeles, California, for the defendant-appellee United States Department of the Navy.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding. D.C. No.CV-98-04835-DDP

Before: Stephen Reinhardt and Marsha S. Berzon, Circuit Judges, and Charles R. Breyer, ¹ District Judge.

REINHARDT, Circuit Judge:

This appeal raises issues relating to environmental standing under the National Environmental Policy Act ("NEPA") and state taxpayer standing. We hold that the appellants have standing to challenge the adequacy of the Navy's Environmental Impact Statement under NEPA, but have not established taxpayer standing sufficient to bring their state law claims in federal court.

I. BACKGROUND

This dispute concerns the plans for the future use of the closed Long Beach Naval Station ("Naval Station"). The Naval Station is located on Terminal Island in the Port of Long Beach. Several of the buildings on the Naval Station were designed by Los Angeles architect Paul R. Williams, the first African-American fellow of the American Institute of Architects and principal architect for the U.S. Navy during the World War II era. A number of the structures on the station qualified for inclusion on the National Register of Historic Places due to their strong association with the development of the Roosevelt Base as an administrative center for training and for ship repair of the Pacific Fleet during the Second World War.

At the time the complaint in this case was filed, portions of the Naval Station served as a habitat for several bird species. Two federally endangered species, the California least tern and the California brown pelican, foraged in 26 acres of shallow water habitat in the area of the station known as the West Basin. The black-crowned night heron, which is protected by the Migratory Bird Act of 1918 and has been classified by the California Department of Fish and Game as a "California special animal," had rookeries in the large ornamental ficus trees on the Naval Station.

In 1991, the Department of Defense announced that the Long Beach station would be closed, and in 1994 the Navy ceased operations at the station. To prepare the area for its planned use as a commercial marine container terminal, the historic buildings on the base have been demolished, the ornamental ficus trees destroyed, and the shallow water habitat dredged. The appellants ("the birdwatchers") are residents of Long Beach and Lakewood, California. They belong to a variety of environmental groups and have opposed the plan to destroy the buildings and bird habitats on the Naval Station in preparation for the future use of the property.

Before disposing of any surplus real property located at a military installation scheduled for closure, the Defense Base Closure and Realignment Act ("DBCRA") requires the Secretary of Defense to consider redevelopment plans submitted by affected local governments for the use of such property by the local community. See Defense Base Closure and Realignment Act of 1990, Pub. L. No. 101-510 S 2905(b)(2)(D); 104 Stat. 1808 (1991). Before transferring the surplus property to the local government, the Secretary of Defense must prepare a decision document in accordance with NEPA. NEPA requires any federal agency considering "major Federal actions significantly affecting the quality of the human environment" to prepare an environmental impact statement ("EIS") identifying the environmental consequences of the proposed action and recommending ways to minimize those which are adverse. 42 U.S.C. S 4332(C). Under the DBCRA procedures, the local government's redevelopment plan is to be treated as part of the proposed federal action. See Pub. L. No. 101-510 S 2905(b) (7)(K)(ii).

The Navy designated the City of Long Beach as its Local Reuse Authority. In 1992, the Long Beach City Council authorized the formation of the Navy Properties Reuse Committee ("NPR") to develop a reuse plan. The bird watchers allege that the NPR failed to actively develop reuse proposals, but instead, early in the process, summarily decided on a marine container terminal to be leased to the Chinese Overseas Shipping Company.

In September 1996, the Board of Harbor Commissioners, approved an environmental impact report, mandated by the California Environmental Quality Act, for the development of a marine container terminal at the Naval Station. In April 1998, the Navy and the City of Long Beach issued a joint final environmental impact statement (FEIS) under NEPA. The FEIS evaluated four alternatives: the marine container proposal, an auto terminal, an institutional campus, and the "no project alternative." The bird watchers allege that the FEIS was deficient because it did not give full and complete consideration to the environmental effects of the marine container terminal proposal, and because the Navy adopted an unreasonably small range of reuse project alternatives. In May 1998, the Navy issued its "Record of Decision for Disposal and Reuse of Naval Station Long Beach" approving Long Beach's plan to convert the former station into a commercial marine container terminal.

The original complaint in this matter was filed in the District Court on June 15, 1998. The primary defendants were the City of Long Beach and the United States Department of the Navy. The complaint set forth state law claims against the City of Long Beach alleging violations of the state tidelands trust, and contending that the proposed use is a waste of public assets and a public gift in violation of the California Constitution. The action against the Navy set forth not only these state taxpayer claims, but also challenged the adequacy of the FEIS under NEPA. Over the summer, the district court denied two ex parte applications for a temporary restraining order, and dismissed the complaint for lack of standing with leave to amend. The bird watchers then filed an amended complaint and two further unsuccessful ex parte applications for a temporary restraining order. By October, the City of Long Beach began to tear down the buildings and trees at the Naval Station in preparation for the marine container terminal. On December 8, the district court denied the bird watchers' motion for a preliminary injunction, and granted appellees' motion to dismiss for lack of standing without leave to amend. By the time appellants filed their brief in this appeal in May 1999, the historic buildings and bird habitats on the Naval Station had been destroyed.

II. MOOTNES

Long Beach and the Navy contend that this appeal is moot because the historic buildings on the Naval Station have been destroyed and the trees and structures of the station have been razed in preparation for the construction of the marine container terminal. The burden of demonstrating mootness is a heavy one. Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). A case becomes moot whenever it "los[es] its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract propositions of law." Hall v. Beals, 396 U.S. 45, 48 (1969). In deciding a mootness issue,"the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief." Gordon, 849 F.2d at 1244-45 (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)).

We recently addressed mootness in the context of NEPA in West v. Secretary of the Department of Transportation, 206 F.3d 920 (9th Cir. 2000). In West, we held that an action challenging an agency decision to exclude a two-stage highway interchange project from review under NEPA was not moot even though the first stage of the project was complete and the new interchange was carrying traffic. Pointing out that "[t]he central question of all mootness problems is whether changes in the circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief," id. at 925 n.4 (quoting Wright & Miller: 13A Federal Practice and Procedure S 3533.3 at 268 (1984)), we found that effective relief could still be granted in the form of requiring additional environmental review and conceivably ordering the interchange closed or taken down. Id. at 925. Similarly, in Gordon, we reversed the district court's holding that a challenge to regulations governing the 1986 salmon fishing season was mooted by the close of the season. Gordon , 849 F.2d at 1245. We held that "[t]he fact that the alleged violation has itself ceased is not sufficient to render a case moot. As long as effective relief may still be available to counteract the effects of the violation, the...