Don't Ruin Our Park v. Stone

• Decision Date: 09 September 1992
• Docket Number: No. 3: CV-90-1115.,3: CV-90-1115.
• Citation: 802 F. Supp. 1239
• Parties: DON'T RUIN OUR PARK, et al., Plaintiffs, v. Michael P.W. STONE, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

802 F. Supp. 1239

DON'T RUIN OUR PARK, et al., Plaintiffs, v. Michael P.W. STONE, et al., Defendants.

No. 3: CV-90-1115.

United States District Court, M.D. Pennsylvania.

September 9, 1992.

COPYRIGHT MATERIAL OMITTED

Cristobal Bonifaz, Amherst, Mass., for plaintiffs.

Robert R. Long, Asst. U.S. Atty., Harrisburg, Pa., A. Reid Allison, III, Office of Judge Advocate Gen., Dept. of Army, Arlington, Va., for Federal defendants.

Linda C. Barrett, Deputy Atty. Gen., Office of Atty. Gen., Harrisburg, Pa., for State defendant Major Gen. Gerald T. Sajer.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND

This is an action under the National Environmental Policy Act of 1969, as amended, ("NEPA"), 42 U.S.C. §§ 4321 to 4347,¹ challenging the defendants' decision to allow the Pennsylvania Army National Guard Aviation Support Facility and Company G, 104th Aviation ("104th Aviation")² to relocate its training base to the Mid-State Airport ("Mid-State") near Phillipsburg, Pennsylvania. Mid-State is bounded on all sides by Pennsylvania state forest and game commission lands. Located within the state forest is a state park, the Black Moshannon State Park ("Black Moshannon").

The plaintiffs are five conservation associations: Don't Ruin Our Park, the Pennsylvania Federation of Sportsmen's Clubs, the Pennsylvania Environmental Defense Foundation and the Sierra Club (hereafter collectively referred to as "DROP")³ who take exception to the decision permitting the relocation, claiming that it was based on an inadequate assessment of the potential environmental impact of the operation of the 104th Aviation at that site. Plaintiffs claim that the Environmental Assessment ("EA") performed to justify the move is inadequate and that a more in-depth Environmental Impact Statement ("EIS") is required to explore fully the potential for environmental harm. Named as defendants are the following government officials involved in the decision-making process: Michael P.W. Stone, Secretary of the Army; John B. Conaway, Chief of the National Guard Bureau ("NGB");⁴ William A. Navas, Deputy Director of the Army National Guard; and Gerald T. Sajer, Adjutant General of the Pennsylvania National Guard.⁵

The 104th Aviation is a helicopter company with an authorized strength of sixteen CH-47C ("Chinook") helicopters, one UH-1H ("Huey") helicopter and 201 personnel. The unit is supported by an Army Aviation Support Facility ("AASF") which is responsible for aircraft maintenance and for training personnel in aircraft maintenance and helicopter flight procedures. Eleven CH-47C helicopters, one UH-1H helicopter, and 163 personnel are currently assigned to the unit. (Record Document No. 62, Federal Defendants' Statement of Undisputed Facts, para. 5.)

From 1985 to 1990, the 104th Aviation was stationed at the Wilkes-Barre/Scranton International Airport ("WBSI Airport").⁶ In 1987, a Site Evaluation Team was formed to search for a new location in eastern Pennsylvania. Timothy Leininger, an "Environmental Specialist" at the Pennsylvania Department of Military Affairs ("DMA"), was appointed to the search team. After considering and eliminating a number of potential sites, for various reasons, the team settled on Mid-State and began efforts to effectuate the relocation. (Record Document No. 62, Federal Defendants' Statement of Undisputed Facts, paras 7 and 8, and AR-3;⁷ AR-14 and AR-15.)

As the environmental specialist on the team, Leininger participated extensively in preparing the EA for the 104th Aviation's use of Mid-State. Leininger submitted a draft EA (1st DEA) to state, federal and local agencies for comment on June 9, 1988. In it, Leininger concluded that further study was necessary and recommended preparation of an EIS for the proposed move. Leininger concluded by recommending further study of the project's potential impact on wildlife, erosion, sedimentation, and nearby bogs and wetlands. (AR-4, pp. 39-40)

On June 21, 1988, the 1st DEA was withdrawn from consideration by Frank Audino, Director of Facilities, Pennsylvania DMA. Leininger left the employ of the DMA shortly thereafter, and was replaced on the Evaluation Team by LTC Gregory Parrish who had been appointed an acting DMA Environmental Specialist on July 26, 1988.

A second draft ("2nd DEA"), signed by Parrish, was issued a month after withdrawal of the first. The 2nd DEA contained a different set of conclusions than the first. It found that the proposed move to Mid-State would have no significant impact on the environment (referred to as a "finding of no significant impact" or a "FONSI") and concluded that no further study of the potential environmental consequences of the move was warranted.

The 2nd DEA was circulated for comment by the participating agencies. Suggestions and comments received were incorporated in the draft, and on September 23, 1988, the 2nd DEA, as revised, was distributed for public comment. A public hearing on the 2nd DEA was held October 6, 1988 in Philipsburg. The 2nd DEA was further revised to reflect comments received during the public comment period. On December 5, 1988, General Sajer signed the 2nd DEA/FONSI, as revised, and it was then forwarded to the National Guard Bureau ("NGB") for comment and review.

In a Memorandum of Understanding (MOU) dated March 3, 1989,⁸ the Pennsylvania Department of Environmental Resources (PaDER) agreed to transfer jurisdiction and control over 40 acres of land adjacent to Mid-State to DMA for use by the 104th Aviation.

After a second round of public comment periods, hearings and further revisions, the final EA/FONSI was approved by Brigadier General Navas of the NGB on December 11, 1989, paving the way for the 104th Aviation's move to Mid-State.

Defendants state that the 104th Aviation began moving equipment and personnel to Mid-State the following month.⁹ By March, 1990, the move was substantially completed, and full-scale flight/training operations were in progress. By mid-June, 1990, all personnel and equipment were at Mid-State, and the 104th Aviation's lease at WBSI had been canceled.

Plaintiffs filed this action June 11, 1990, challenging the adequacy of the EA/FONSI. They allege that defendants acted in an arbitrary and capricious manner in deciding that an EIS is not necessary by (1) failing to comply with federal regulations which require preparation of an EIS; (2) violating Pennsylvania statutory law governing the preservation of Black Moshannon State Park, 74 Pa.Cons.Stat.Ann. § 5905; (3) creating a "chaotic" environmental process by issuing "contradictory Environmental Assessments requiring and not requiring" an EIS; (4) ignoring peak noise levels, meteorological effects, alternative technologies for noise evaluation and the special impact of helicopter noise in their evaluation of the noise impact of the facility; (5) ignoring "significant public controversy" associated with the planned move; (6) ignoring "severe cumulative and secondary impacts" of the planned move; and (7) ignoring the impacts of the construction and enlargement of access roads to the facility and related industrial development. (Plaintiffs' complaint, pp. 21-22)

As redress for these grievances, plaintiffs seek an order: (1) declaring that the relocation of 104th Aviation to Mid-State is a major federal action which will significantly affect the quality of the human environment within the meaning of 42 U.S.C. § 4332, such that an EIS is required; and (2) enjoining defendants from taking any further action in connection with the relocation of 104th Aviation until they have complied with 42 U.S.C. § 4332.¹⁰ Plaintiffs also seek costs and attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.

Before the court are: (1) a motion to dismiss, or in the alternative, for summary judgment by the federal defendants (Record Document No. 62); (2) a motion for summary judgment by the Commonwealth defendants (Record Document No. 66); and (3) a motion for summary judgment by plaintiffs (Record Document No. 93). We will dispose of the federal defendants' motion on summary judgment grounds. For the reasons discussed below, defendants' motions for summary judgment will be granted, and plaintiffs' motion will be denied.

DISCUSSION

Mootness

Defendants argue that this action should be dismissed as moot because the 104th Aviation's move to Mid-State has been completed and flight operations have begun. Although temporary facilities have been constructed, permanent facilities have yet to be built.

A federal court's jurisdiction over a case continues only so long as there is present an actual "case or controversy", S.E.C. v. Medical Committee for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972). The case becomes moot if, at some stage of the proceedings, a "live controversy" ceases to exist. Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir. 1989). However, so long as there remains the possibility that the plaintiff can obtain "any effective relief", the case is not moot. Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir.1986.) The defendants' undertaking of conduct that the action sought to halt or prevent does not necessarily render the case moot. "`It has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.'" Garcia, supra, 805 F.2d at 1402, quoting Porter v. Lee, 328 U.S. 246, 251, 66 S.Ct. 1096, 1099, 90 L.Ed. 1199 (1946). The "heavy burden" of proving a case is moot is on the defendant. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979).

A suit to compel an EIS under NEPA becomes moot if a decision has already been made and carried out and cannot be undone. If the project has been substantially completed or has already had an irreversible impact on the environment an EIS would serve no purpose, and the plaintiff cannot obtain...