Hawai`I County Green Party v. Clinton

• Decision Date: 11 October 1997
• Docket Number: CV. No. 97-01422DAE.,CV. No. 97-01423DAE.
• Parties: HAWAI`I COUNTY GREEN PARTY, Florida Coalition for Peace and Justice, Plaintiffs, v. William Jefferson CLINTON, President of the United States, in his official capacity, John Gibbons, Director, Office of Science and Technology Policy, in his official capacity, Daniel Goldin, Administrator, National Aeronautics and Space Administration, in his official capacity, Defendants.
• Court: Hawaii Supreme Court

980 F.Supp. 1160

HAWAI`I COUNTY GREEN PARTY, Florida Coalition for Peace and Justice, Plaintiffs, v. William Jefferson CLINTON, President of the United States, in his official capacity, John Gibbons, Director, Office of Science and Technology Policy, in his official capacity, Daniel Goldin, Administrator, National Aeronautics and Space Administration, in his official capacity, Defendants.

CV. No. 97-01422DAE.

CV. No. 97-01423DAE.

United States District Court, D. Hawai`i.

October 11, 1997.

Order Denying Reconsideration October 17, 1997.

COPYRIGHT MATERIAL OMITTED

Lanny Sinkin, Hilo, HI, for Plaintiffs.

Michael Chun, U.S. Attorney's Office, Honolulu, HI, for Defendants.

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

DAVID ALAN EZRA, District Judge.

The court heard Plaintiffs' Motion for Temporary Restraining Order and Plaintiffs' Preliminary Injunction on October 10, 1997. Lanny Sinkin, Esq., appeared at the hearing on behalf of Plaintiffs; Assistant United States Attorney Michael Chun, and Department of Justice Attorneys Anthony Hoang and Martin Lalonde, appeared at the hearing on behalf of Defendants. After reviewing the motions and the supporting and opposing memoranda, the court DENIES Plaintiffs' Motions for Temporary Restraining Order and Preliminary Injunction.

BACKGROUND

On October 3, 1997, Defendant William Jefferson Clinton, President of the United States of America ("the President") authorized the launch of the Cassini Mission. The Cassini Mission is set to launch from Cape Canaveral Air Force Station in Florida on October 13, 1997. The Cassini Mission involves a space probe that will be launched aboard a Titan IV/Centaur rocket to Saturn solely dedicated to the study of the planet, its rings and its moons. The probe will carry 72.3 pounds of Plutonium-238 as a power supply. The spacecraft is equipped with 12 scientific experiments on a seven year journey to Saturn. The probe is to orbit Saturn for four years. In order to travel the long distance to Saturn the spacecraft will boost its speed by utilizing the gravitational energy from three planets including Earth. The spacecraft is scheduled to obtain a gravity assist from Earth in August, 1999.

Preparation for the Cassini Mission has been ongoing for over a decade. It involves a joint effort by the European Space Agency, the Italian Space Agency, and NASA, and cost the United States approximately $3.3 billion dollars. NASA completed both a Final Environmental Impact Statement ("FEIS") in 1995, and a Supplemental Environmental Impact Statement ("SEIS") in 1997. Both of these documents were available to the public for review and comment. In its final conclusions, NASA found that there were only "small risks associated with the Cassini Mission," and that the Cassini Mission should be scheduled to launch in October, 1997. Record of Decision, Supplemental Environmental Impact Statement dated August 12, 1997, at 5-6. NASA then requested approval of the Cassini Mission from the President in a letter dated August 15, 1997, pursuant to Presidential Directive/National Security Council Memorandum (PD/NSC-25), dated May 8, 1996. The letter was prepared by Defendant Daniel S. Goldin ("Goldin"), of NASA, and forwarded to Defendant John H. Gibbons ("Gibbons"), the Assistant to the President for Science and Technology. The Executive Branch announced approval on October 3, 1997.

Plaintiff Hawaii County Green Party ("HCGP") is a political organization. Almost all of the members HCGP live and own property in the County of Hawaii on the Island of Hawaii. Plaintiff Florida Coalition for Peace and Justice ("FCPJ") is a not for profit organization with members residing adjacent to the launch site for the Cassini Mission.

On October 7, 1997, Plaintiffs filed an action for a temporary restraining order, preliminary injunction and permanent injunction to prohibit the launch of the Cassini Mission until October 23, 1997. Plaintiffs' Motion for Temporary Restraining Order is based upon a claim under 42 U.S.C. § 1983 and deprivation of procedural due process. On October 7, 1997, Plaintiffs filed a second complaint alleging that the decision to launch the Cassini Mission violated the National Environmental Policy Act ("NEPA"). Defendants filed opposition to the motion for temporary restraining order on October 9, 1997, and on October 10, 1997, Defendants filed opposition to Plaintiffs' motion for preliminary injunction.

STANDARD OF REVIEW

A temporary restraining order is restricted to its "underlying purpose of preserving the status quo and preventing irreparable harm just so long as it is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974). The restrictions contained in Fed.R.Civ.P. 65(b)¹ are "stringent" and "reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." Id. The Ninth Circuit authorizes the court to issue a temporary restraining order if: (1) the motion raises serious questions on the merits; and (2) the balance of hardships tips sharply in the moving party's favor. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1202 (9^th Cir. 1980); Dumas v. Gommerman, 865 F.2d 1093, 1095 (9^th Cir. 1989). These standards are not two distinct tests, but are treated as "the opposite ends of a single `continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.'" Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9^th Cir. 1987) (quoting San Diego Comm. Against Registration etc. v. Governing Bd. of Grossmont Union High School Dist., 790 F.2d 1471, 1473 n. 3 (9^th Cir. 1986)).

Pursuant to Rule 65, a plaintiff seeking a preliminary injunction must meet the same standard. The "party seeking the injunction must demonstrate that it will be exposed to some significant risk of irreparable injury.... A plaintiff must do more than merely allege imminent harm sufficient to establish standing, he ... must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief." Associated Gen. Contractors of Cal., Inc. v. Coalition for Economic Equity, 950 f.2d 1401, 1410 (9^th Cir. 1991). In cases involving public interest the court must also consider whether the public interest favors the plaintiff.

DISCUSSION

I. MOTION FOR TEMPORARY RESTRAINING ORDER.

A. Likelihood of Success on the Merits.

1. Violation of 42 U.S.C. § 1983.

Plaintiffs allege a likelihood of success on the merits of their claim under 42 U.S.C. § 1983. Plaintiffs are incorrect.

To state a claim for violation of § 1983, a plaintiff must show that the defendant acted under color of state law, and that the defendant's conduct must have deprived the plaintiff of a constitutional right. Ketchum v. County of Alameda, 811 F.2d 1243, 1245 (9^th Cir. 1987). By its own language § 1983 only applies to those individuals acting under color of state law. 42 U.S.C. § 1983 (West Supp. 1997). Section 1983 does not apply to federal defendants acting pursuant to federal law, as is the case here. Since Plaintiffs cannot properly allege a cause of action against Defendants under § 1983, the court DISMISSES Plaintiffs' claim for violation of 42 U.S.C. § 1983.

2. Deprivation of Procedural Due Process Rights Under the Administrative Procedures Act and NEPA.

Plaintiffs also assert that they were deprived their constitutionally protected procedural due process rights to challenge the decision to launch the Cassini Mission. The agency decision can be reviewed under 5 U.S.C. § 702, the Administrative Procedures Act ("APA"). Section 702 states that "[a] person suffering legal wrong because of agency action ... within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702 (West 1996).² Plaintiffs claim that Defendants violated the requirements of NEPA when the decision to launch the Cassini Mission was made. Furthermore, Plaintiffs claim that by not allowing enough time for Plaintiffs to challenge the agency decision, that Defendants violated Plaintiffs' right to procedural due process. Plaintiffs request that the Cassini Mission be postponed to protect their right to procedural due process and allow them to obtain meaningful review of the agency decision.

Plaintiffs allege that the agency decision did not become final until October 3, 1997, when the White House made the announcement that the Cassini Mission was scheduled for October 13, 1997. Plaintiffs contend that since the decision did not become "final" until that date, they were left only nine days to vindicate their due process rights. Essentially, Plaintiffs argue that if the temporary restraining order is not granted in this action, they will be deprived of their due process rights to be heard in their separate lawsuit (Cv. No. 97-01423DAE)³.

Plaintiffs assert that there is a likelihood of success on the merits of this action because "this court would find nine days as insufficient time to prepare, file, litigate, decide and secure a decision, and exhaust appeals for litigation challenging the decision by NASA to launch the Cassini Mission." Plaintiffs' Memorandum at 6.

First, Defendants point out that Plaintiffs failed to clearly indicate the source of the liberty or property interest that is the basis of the procedural due process right. Defendants' Opposition at 15 n. 9. Second, Defendants contend that "nothing in the Fifth Amendment requires the government ... to postpone taking action in order to allow a full trial on the merits of any potential lawsuit." Id. at 14. Defendants assert that Plaintiffs have in fact been heard on their claims under NEPA and the APA. Basically, Defenda...