Ilioulaokalani Coalition v. Rumsfeld
| Citation | 464 F.3d 1083 |
| Decision Date | 05 October 2006 |
| Docket Number | No. 05-15915.,05-15915. |
| Parties | `ILIO`ULAOKALANI COALITION, a Hawaii nonprofit corporation; Na `Imi Pono, a Hawaii unincorporated association; Kipuka, a Hawaii unincorporated association, Plaintiffs-Appellants, v. Donald H. RUMSFELD, Secretary of Defense; Francis J. Harvey, Dr., Secretary of the United States Department of the Army, Defendants-Appellees, and Les Brownlee, Acting Secretary of the United States Department of the Army, Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
David L. Henkin, Earthjustice, Honolulu, HI, argued the case for Appellants `Ilio`ulaokalani, Na `Imi Pono, and Kipuka; Isaac H. Moriwake was on the briefs for Appellants.
Michael T. Gray, Department of Justice, Washington, D.C., argued the case for Appellees Donald H. Rumsfeld, Secretary of Defense and Francis J. Harvey, Secretary of the United States Department of the Army; Kelly A. Johnson, Acting Assistant Attorney General, John L. Smelzer, Department of Justice, and Barry A. Weiner, Department of Justice, were on the briefs for Appellees.
Appeal from the United States District Court for the District of Hawaii; David A. Ezra, District Judge, Presiding. D.C. No. CV-04-00502-DAE.
Before B. FLETCHER, THOMPSON, and BEA, Circuit Judges.
Opinion by Judge BETTY B. FLETCHER; Dissent by Judge BEA
This appeal requires us to assess whether the Army complied with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347 (2006), in planning its programs to modernize and streamline its forces, while simultaneously maintaining readiness. While the metamorphosis of the Army and the strategic planning accompanying this transformation is the business of the Army, not the courts, the Army's compliance with NEPA does involve us.
As part of its NEPA evaluation of the Army Transformation Campaign Plan, the Army completed a programmatic environmental impact statement ("PEIS"), in which it identified Hawaii as one of the selected sites for transformation. Subsequently, the Army undertook a site-specific environmental impact statement ("SEIS") to detail the impacts on the environment of the Army's expansion, land use, and activities associated with transforming the 2nd Brigade, now stationed on Oahu, Hawaii, into a Stryker Brigade Combat Team ("SBCT") in Hawaii. Plaintiffs, `Ilio`ulaokalani Coalition, Na `Imi Pono, and Kipuka ("Hawaiian Groups"), challenged the sufficiency of the Army's NEPA procedure, both at the programmatic and site-specific levels, on two grounds, arguing that (1) the Army failed to comply with NEPA's public notice requirements and (2) both the PEIS and SEIS failed to consider reasonable alternatives.
The district court granted summary judgment to the Army, finding that its public notice efforts were compliant with NEPA and that it sufficiently considered reasonable alternatives to transforming the 2nd Brigade in Hawaii. We now reverse the portion of the district court's decision that held that the Army considered all reasonable alternatives to transformation of the 2nd Brigade in Hawaii and remand to require it to prepare a supplemental SEIS to consider all reasonable alternatives, most notably the potential for transforming the 2nd Brigade outside of Hawaii.
In 1999, the Secretary of the Army and the Chief of Staff of the Army announced a major re-working of the United States Army. The objective of this effort is the creation of a "more responsive, deployable, agile, versatile, lethal, survivable, and sustainable" Army which is also strategically responsive and nimble. Programmatic Record of Decision ("P-ROD") (Apr.2002) at 1, AR 0009656. The Army describes the "ultimate force that would achieve the Army Vision" as the "Objective Force." Final Programmatic Environmental Impact Statement ("Final PEIS") (Feb.2002) at 1-1, AR 0003864.
This thirty-year undertaking will have three phases (Initial Phase, Interim Capability Phase, and Objective Capability Phase) and three corresponding objectives (Initial Force, Interim Force, and Objective Force). P-ROD at 1-2, AR 0009656-57. The Initial Phase, which began in October 1999 and had been completed at the time of this appeal, had as its objective the creation of two Initial Brigade Combat Teams ("BCTs"). Two units, the 3rd Brigade, 2nd Infantry Division and the 1st Brigade, 25th Infantry Division, in Fort Lewis, Washington, were transformed to accomplish this objective. U.S. Army Public Affairs Office, Press Release, Army Announces Locations of Next Interim Brigade Combat Teams (July 12, 2001), AR 0003512. The purpose of this Initial Phase was to "validate an organizational and operational model for Interim BCTs [Brigade Combat Teams]" and to "develop[ ] the strategic, operational, and tactical doctrine for subsequent phases of transformation." Final PEIS at 2-5, AR 0003878. "These brigades ... are being used to evaluate and refine the Operations and Organization Concept for a brigade combat team (BCT) and to validate tactics, techniques, and procedures." P-ROD at 2, AR 0009657.
The Interim Capability Phase, aspects of which are at issue in the appeals before us, has as its objective "complet[ing] the fielding of five to eight Interim BCTs." The Interim Force would consist of "both Legacy Forces and transformed forces." Final PEIS at 2-5, AR 0003878. These BCTs will be capable of deploying anywhere in the world in four days. Id. at 1-1, AR 0003864. This phase will begin "with fielding of interim armored vehicles (IAVs) and will end when the last I[nterim]BCT is fully manned, equipped, and trained to possess the capabilities described in the I[nterim]BCT Operations and Organization Concept." P-ROD at 2, AR 0009657. The Objective Phase will complete the Army's transformation into the Objective Force described above. Id. at 1-2, AR 0009656-57.
Both cases decided today1 address issues that arose as part of the Interim Capability Phase, namely the transformation of 2nd Brigade in Hawaii into an Interim or Stryker BCT. We present and view the facts in the light most favorable to Plaintiffs-Appellants Hawaiian Groups as this is an appeal from the grant of summary judgment to appellees and denial of summary judgment to appellants. See Envtl. Coal. of Ojai v. Brown, 72 F.3d 1411, 1414 (9th Cir.1995).
On December 15, 2000, the Army published in the Federal Register its notice of intent ("NOI") to prepare a PEIS for its planned overhaul. 65 Fed.Reg. 78476 (Dec. 15, 2000). At this point, the Initial Phase was already underway in Fort Lewis, Washington. Id. The NOI described the alternatives that would be considered in the PEIS:
1. No Action Alternative: Whereby the ATCP would not be implemented and needed changes to Army equipment, force structure and training practices would be separately analyzed on a piecemeal basis.
2. Action Alternative 1: Whereby the program for transformation of the Army to better meet present and future national security requirements and fulfill the Army Vision would be initiated in accordance with the ATCP including:
a. A comparison of the likely environmental effects at candidate (alternative) sites for placement of the brigades planned for the Interim Force.
b. Identification and analysis of the types of major actions contained in the ATCP leading to the Objective Force and their associated activities and consequential types and magnitude of effects.
3. Action Alternative 2: Whereby the ATCP would only be partially implemented because of budgetary or other constraints.
To further publicize the scoping period for the PEIS, the Army published a notice in USA TODAY on December 19, 2000. A large title reads, "PUBLIC NOTICE." In slightly smaller font is a subheading stating, "THE DEPARTMENT OF THE ARMY SEEKS PUBLIC INPUT FOR PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT FOR IMPLEMENTATION OF THE ARMY TRANSFORMATION CAMPAIGN PLAN." AR 0004167. Below that, in small type, the notice indicates that the Army is seeking public comment to determine the "appropriate scope of its Programmatic Environmental Impact Statement" and summarizes the alternatives to be considered as the "no-action" alternative, "full implementation of the TCP," and "partial implementation of the TCP." Id. That the Army provided notice of the pending PEIS in the Federal Register and in USA TODAY, not in the Hawaiian media, is not in dispute. The Army did not invite state and local agencies to participate in scoping for the PEIS. The Army noted internally that there was "[v]irtually no public response to `scoping.'" Dep't of the Army Transformation Office, Public Involvement and Outreach for Army Transformation and the Transformation PEIS, slide presentation, AR 0004584.
Consistent with its practices during scoping, the Army published a Notice of Availability of the Draft PEIS for Implementation of Army Transformation in the Federal Register, 66 Fed.Reg. 54241 (Oct. 26, 2001), and in USA TODAY on October 31, 2001, making the Draft PEIS available for public comment. AR 0004593, 00010390-91. Again, the Army did not circulate the Draft PEIS to, and did not solicit comments from, state or local agencies. Neither did the Army provide written notice to national organizations or solicit comments from potentially interested individuals and communities. Plaintiffs did not comment on the Draft PEIS. According to Plaintiffs and confirmed by the Army's distribution list, no one in Hawaii sought copies of the Draft PEIS. Nationally, one member of the public submitted comments on the Draft PEIS. Pls.-Appellants' Opening Br. at 22-23. The Draft PEIS described how the transformation of certain brigades into Stryker Brigade Combat Teams ("SBCTs") would take place during the second phase, the Interim Capability Phase, of the...
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