Ground Zero Ctr. for Non-Violent Action v. U.S. Dep't of the Navy

• Decision Date: 27 June 2017
• Docket Number: No. 14-35086,14-35086
• Citation: 860 F.3d 1244
• Parties: GROUND ZERO CENTER FOR NON-VIOLENT ACTION, a Washington non-profit corporation; Washington Physicians for Social Responsibility, a Washington non-profit corporation; Glen Milner, an individual, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF the NAVY; Raymond E Mabus, Jr., in his official capacity as Secretary of the Navy; Roger M Natsuhara, in his official capacity as Principal Deputy Assistant Secretary of the Navy; Terry J. Benedict, Rear Admiral, in his official capacity as Director of Navy Strategic Systems Programs; Pete Dawson, Captain, in his official capacity as Commanding Officer of Naval Base Kitsap; Christine Stevenson, in her official capacity as Project Manager at Naval Facilities Engineering Command Northwest, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

860 F.3d 1244

GROUND ZERO CENTER FOR NON-VIOLENT ACTION, a Washington non-profit corporation; Washington Physicians for Social Responsibility, a Washington non-profit corporation; Glen Milner, an individual, Plaintiffs-Appellants,

v.UNITED STATES DEPARTMENT OF the NAVY; Raymond E Mabus, Jr., in his official capacity as Secretary of the Navy; Roger M Natsuhara, in his official capacity as Principal Deputy Assistant Secretary of the Navy; Terry J. Benedict, Rear Admiral, in his official capacity as Director of Navy Strategic Systems Programs; Pete Dawson, Captain, in his official capacity as Commanding Officer of Naval Base Kitsap; Christine Stevenson, in her official capacity as Project Manager at Naval Facilities Engineering Command Northwest, Defendants-Appellees.

No. 14-35086

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2016 Seattle, Washington

Filed June 27, 2017

Katherine George (argued), Harrison-Benis LLP, Seattle, Washington; James E. Lobsenz (argued), Carney Badley Spellman P.S., Seattle, Washington; for Plaintiffs-Appellants.

John David Gunter, II (argued) and Luther L. Hajek, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

David S. Mann, Gendler & Mann LLP, Seattle, Washington, for Amici Curiae Allied Daily Newspapers of Washington and Society of Environmental Journalists.

Before: Susan P. Graber, Marsha S. Berzon, and Mary H. Murguia, Circuit Judges.

OPINION

BERZON, Circuit Judge:

We consider, principally, the adequacy of the United States Department of the Navy's ("Navy's") Environmental Impact Statement ("EIS") for the expansion of a TRIDENT nuclear submarine operating center. We also address whether a district court order restricting the dissemination of documents that the Navy erroneously made available through the court's public docket violated due process or the First Amendment.

IBackground

A. The Navy's Proposed Wharf

Bangor, Washington, is home to Naval Base Kitsap ("Kitsap"), the Navy's main operating hub for the Pacific fleet of its TRIDENT submarine program. TRIDENT submarines, armed with nuclear missiles, are brought to Naval Base Kitsap for, among other things, maintenance of those missiles. The base has an Explosives Handling Wharf ("EHW" or "EHW-1") where such maintenance is performed.

During the 1990s, the Navy began upgrading the missiles used on the TRIDENT submarines. These upgraded missiles require increased maintenance and will require even more frequent maintenance as they age. The Navy estimates that its increased maintenance projects at Kitsap will need 400 "operational days" per year, meaning capacity to perform 400 days' worth of maintenance sessions in a year. The existing EHW at Kitsap cannot support those needs. In general, the present EHW can provide 300 operational days per year; in some years, due to the need for upkeep on the wharf, it is usable for fewer than 250 operating days.

The Navy decided that it therefore needed to increase its operational capacity for missile maintenance at Kitsap. It began considering the possibility of building a second Explosives Handling Wharf ("EHW-2"). To comply with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. , the Navy prepared and published an EIS, which described the proposal and its projected environmental impacts.

The EIS primarily discussed environmental impacts arising during the construction of EHW-2, as well as the effect the completed structure and its regular operations would have on the environment. Several alternatives were considered in depth, all of which (with the exception of "no action") involved constructing a second wharf adjacent to the first. The alternatives varied in their structural details—for example, in the size of the support piles on which they would rest—but not in location. According to the Navy, there were no other viable sites for the proposed wharf because of the function the wharf serves. It must be built in water deep enough to allow submarines to operate, but not so deep as to make construction of the wharf infeasible.

In addition to considerations of ocean depth, the EIS made numerous references to constraints on site selection imposed by the need to handle explosive materials safely. It mentioned that a particular alternative site had been considered but rejected because it would not comply with requirements established by the Department of Defense Explosives Safety Board ("Safety Board") and the Naval Ordnance Safety and Security Activity ("NOSSA"), which issue and implement safety guidelines surrounding the proper handling of explosives. The EIS also referred to a potential plan for a shore-based terminal, rejected for the same reason.

In addition, the EIS explained, to comply with Safety Board and NOSSA "requirements to protect buildings located in the vicinity of explosives handling operations," the construction of EHW-2 would involve the demolition or modification of more than a dozen facilities or structures near the proposed site. Noting that "[a]ll facilities constructed at the Bangor waterfront must comply with [Safety Board] and NOSSA requirements regarding explosives safety restrictions," the EIS characterized the proposed location for EHW-2 as "the only available location along the Bangor waterfront that ensures designated restricted areas remain within Navy property boundaries and required separation distances between facilities are maintained."

In a section labeled "Public Health and Safety," the Navy reported that the existing EHW has "operated safely for over 30 years," and that "[o]perations at the EHW-2 would be no different from operations at the existing EHW." The section concluded that "there would be no resulting impact to public health or safety" from the proposed development of EHW-2, as there would be "[n]o increased danger or change from current safe operations."

At several points, the EIS referenced appendices. Three of these appendices were redacted in their entirety in the publicly released version of the EIS. According to the EIS's references and the appendices' titles, Appendix A contained supplemental information describing the purpose and need for the project, Appendix B contained additional information regarding alternatives to EHW-2 that the Navy had considered, and Appendix C contained information regarding the distance "within which activities and facilities are restricted to assure protection to life and property in the event of an accident," which is referred to as an "[e]xplosives [s]afety [a]rc." The EIS stated that these appendices had been redacted because they contained Unclassified Controlled Nuclear Information ("UCNI") the Navy deemed unfit for public dissemination.¹

After going through a public comment period and issuing a final EIS, the Navy issued a Record of Decision announcing that it had decided to implement one of the proposed EHW-2 construction plans. The EHW-2 plan selected would be adjacent to EHW-1 and would provide 300 operational days for missile maintenance every year. Combined with the operational days available at EHW-1, the 300 additional operational days permitted by EHW-2 would be more than sufficient for the TRIDENT program's needs.

B. Ensuing Litigation

Several months after the final EIS was released, Ground Zero Center for Nonviolent Action, Washington Physicians for Social Responsibility, and peace activist Glen Milner (collectively, "Ground Zero") filed a complaint against the Navy and several officials in the Western District of Washington. Ground Zero alleged that the Navy had not fully complied with NEPA's disclosure requirements and sought an injunction to stop construction of EHW-2.

1. NEPA Claims

During this litigation, the Navy revealed significant information not fully disclosed in the EIS.² In particular, one group of documents indicated that the Safety Board had rejected the EHW-2 proposal. According to these documents, the Safety Board had issued only conditional site approval. The conditional approval "did not accept safety risks associated with" the proposed separation distance between EHW-1 and EHW-2, or the proposed separation between the two EHWs and a complex on another pier. Worried that an "explosive mishap involving one missile" could propagate additional explosions involving other missiles or submarines being handled at the same time, the Safety Board was willing to accept the site approval request only if the Navy conducted a study to "prove that the likelihood of all risk is less than 1x10^-6 6." The Navy had pointed to previous safety studies conducted before approving the locations of two EHWs at a similar base in Kings Bay, Georgia, but the Safety Board was not satisfied with the Navy's reliance on those studies.

These new documents also indicated that, rather than conduct the studies the Safety Board required as a condition of its approval of EHW-2, the Navy had opted to obtain site approval via secretarial certification, a process by which the Secretary of the Navy can approve construction despite any Safety Board concerns. Two days before the publication of the final EIS, an internal Navy memorandum stated that the Secretary had "accept[ed] the risk for mission related operations and construction of" EHW-2, thus permitting the construction to proceed.

The Navy also included in the administrative record more complete—that is, less redacted—versions of EIS Appendices A, B, and C than had been available to the public. As noted, these appendices had not been disclosed during the EIS process on the ground that they contained UCNI. The reason why much of the previously redacted information was now made public, the Navy explained, was that the Navy had "conducted additional review during the preparation of the Core Administrative Record and ... determined that portions of these documents should not be designated as UCNI and can be released consistent with current Navy and Department of...