841 F.2d 927 (9th Cir. 1988), 87-4304, Friends of the Earth v. United States Navy

Docket Nº:87-4304.
Citation:841 F.2d 927
Party Name:FRIENDS OF THE EARTH, a New York non-profit corporation; Pilchuck Audubon Society, a Washington non-profit corporation; Puget Sound Alliance, a Washington non-profit corporation; Seattle Audubon Society, a Washington non-profit corporation; Sierra Club, a California non-profit corporation; Washington Environmental Council, a Washington non-profit c
Case Date:March 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 927

841 F.2d 927 (9th Cir. 1988)

FRIENDS OF THE EARTH, a New York non-profit corporation;

Pilchuck Audubon Society, a Washington non-profit

corporation; Puget Sound Alliance, a Washington non-profit

corporation; Seattle Audubon Society, a Washington

non-profit corporation; Sierra Club, a California

non-profit corporation; Washington Environmental Council, a

Washington non-profit corporation, Plaintiffs-Appellants,

v.

UNITED STATES NAVY, an agency of the United States and;

James H. Webb, Jr., in his capacity as Secretary

of the Navy, Defendants-Appellees.

No. 87-4304.

United States Court of Appeals, Ninth Circuit

March 7, 1988

        Argued and Submitted Feb. 8, 1988.

Page 928

        Victor M. Sher, Sierra Club Legal Defense Fund, Inc., Seattle, Wash., for plaintiffs-appellants.

        J. Carol Williams, Dept. of Justice Land & Natural Resources Div., Washington, D.C., for defendants-appellees.

        Appeal from the United States District Court for the Western District of Washington.

        Before SKOPIL, REINHARDT and LEAVY, Circuit Judges.

        LEAVY, Circuit Judge:

        The appellants, Friends of the Earth and other environmental organizations (FOE), appeal the denial of their motion to preliminarily and permanently enjoin construction of the United States Navy's proposed homeport in Everett, Washington on Puget Sound. FOE alleges that by commencing construction prior to termination of review proceedings concerning a Shoreline Management Act permit, the Navy is in violation of the National Defense Authorization Act, the Administrative Procedure Act, the Federal Water Pollution Control Act, and the Washington Shoreline Management Act.

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        The district court denied FOE's motion, finding that no irreparable harm would occur until June 15, 1988 and that FOE lacked standing. We reverse.

        FACTS AND PROCEDURAL HISTORY

        The Navy plans to build a $272 million permanent "Carrier Battle Group Homeport" at Everett, Washington as part of the Navy's comprehensive defense strategy. The homeport will provide berthing and base facilities for the aircraft carrier USS Nimitz and numerous support ships and service vessels. Establishment of the homeport will entail extensive demolition and construction over several hundred acres. All buildings, piers, and wharves currently at the site will be demolished. New buildings, utilities, and parking areas will be constructed. The existing "mole" 1 will be rebuilt and a 1600 foot breakwater will be constructed. Extensive dredging of the harbor to accommodate the Navy vessels will occur.

        The issue of concern to the plaintiffs is the Navy's proposal to dredge approximately 3.4 million cubic yards of sediment from the East Waterway in Everett Harbor and dispose of these spoils in Port Gardner Bay at depths of 310 to 430 feet, using a dredge spoil disposal technique called Confined Aquatic Disposal (CAD). Approximately one-third of the dredge spoils are contaminated with heavy metals and organic compounds. The CAD disposal system involves in-water disposal of contaminated dredge spoils followed by disposal of clean sediment which, theoretically, will cap and isolate the contaminated material from the marine environment.

        The CAD method is experimental at these depths and the harm to the marine environment which would occur should the contaminated spoils not be contained would be substantial. The United States Fish and Wildlife Service (FWS), in its report Impacts of the Proposed Navy Homeporting Project, Everett, Washington, stated: "[CAD] has only been attempted twice at depths approaching those of the proposed disposal site, and in those cases, the effort was considered a failure, apparently because of an inability to accurately place the material at the site." The FWS opposes the dredging project as currently proposed. The United States National Marine Fisheries Service (NMFS), in a letter to the Army Corps of Engineers (Corps), stated: "The NMFS remains opposed to the Navy's proposal to dispose of nearly one million cubic yards of contaminated sediments by redepositing them in Puget Sound.... because such disposal would have unacceptable adverse impacts on aquatic and fishery resources." The FWS and NMFS support use of an upland site for disposal of the dredge spoils because the technology concerning how to contain the spoils is far better known and the site could be better monitored.

        Two sections of the Federal Water Pollution Control Act (Clean Water Act or CWA) require the Navy to comply with all state and local requirements concerning the discharge of dredged and fill materials and the control of water pollution. 33 U.S.C. Secs. 1344(t), 1323 (1986). Section 2207 of the National Defense Authorization Act of 1987 (NDAA) prohibits the Navy from obligating or spending funds for construction of the Everett homeport until "all Federal, state, and local permits required for the dredging activities to be carried out with respect to homeporting at Everett, Washington, have been issued." National Defense Authorization Act for Fiscal Year 1987, Pub.L. No. 99-661, Sec. 2207 (1986) (NDAA for 1987).

        The Navy has received some required permits and certifications. Under the Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 407 (1986), and section 404 of the Clean Water Act, 33 U.S.C. Sec. 1344 (1986), the Navy must obtain from the Army Corps of Engineers a "404 permit" before it may discharge dredged or fill material into the navigable waters of the United States. The Navy obtained this permit on September 24, 1987. Under section 401 of the Clean Water Act, 33 U.S.C. Sec. 1341 (1986), the state of Washington must certify that

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the activities authorized by the 404 permit will not adversely affect water quality (Water Quality Certification or 401 certification). The state issued the certification on March 2, 1987.

        The permit about which the parties are in dispute comes under the state of Washington's Shoreline Management Act (SMA) and would be obtained from the city of Everett. Wash.Rev.Code Secs. 90.58.010-.930 (West Supp.1987). The Navy initially refused to apply for this permit, contending it had sovereign immunity. However, eventually the state and the Navy entered into a Memorandum of Agreement (MOA). The Navy, without waiving any sovereign immunity, agreed to apply to the city of Everett for a SMA permit, and also agreed "to comply with all conditions of the permit related to water quality and aquatic life in Puget Sound and Gardner Bay and further ... to comply with all other reasonable and appropriate permit conditions." The MOA stated that any conditions would be included in the 404 permit. The state conditioned its issuance of the 401 certification on the Navy submitting the homeport project to the SMA permit process.

        On March 2, 1987, the Navy applied to the city of Everett for a "conditional use shoreline substantial development permit" under the SMA for construction of the homeport in Everett's shoreline area. The application stated that the permit was requested for dredging and disposal of dredge spoils. The city approved the permit, subject to certain conditions, on June 10, 1987. The permit allows among other things, dredging and disposal of dredge spoils.

        The Washington Department of Ecology (WDOE) reviewed the permit, as required by the SMA, Wash.Rev.Code Sec. 90.58.140(12), and approved it, with additional conditions, on July 8, 1987. The permit contains the following language:

Construction pursuant to this permit will not begin or is not authorized ... until all review proceedings initiated within thirty days from the date of [this permit] have terminated.

        This restriction is required by the SMA. Wash.Rev.Code Sec. 90.58.140(5).

        On July 30, 1987, the plaintiffs filed a request for review of the SMA permit with the state Shorelines Hearings Board (Board), in accordance with the review procedures established in the SMA. Wash.Rev.Code Sec. 90.58.180. At the time of oral argument in this case, the Board had held two weeks of hearings on the permit, and more hearings were scheduled.

        In August and September 1987, while the plaintiffs' appeal to the Board was pending, the Navy solicited and accepted bids for site preparation and shore utility construction. On September 29, 1987, the Navy awarded a $26 million contract for this work.

        The contract calls for demolition, excavation, and subgrading of the entire homeport site, followed by construction of the homeport's infrastructure, including utilities, roads, and parking lots. The contract also involves some in-water work, including demolition of all existing waterfront structures, such as wharves, piers, and pilings; construction of riprap; and removal of debris. The Navy maintains this contract does not involve dredging; dredging will be the subject of a future contract under the same SMA permit. In contrast, FOE claims, and supports by the affidavit of an expert, that the contract does involve dredging as well as significant in-water demolition and filling, all of which may adversely affect water quality.

        The contract specifies that no in-water work will commence until after June 15,...

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