Enos v. Marsh

• Decision Date: 05 January 1984
• Docket Number: Civ. No. 82-0571.
• Citation: 616 F. Supp. 32
• Parties: Eric M. ENOS, et al., Plaintiffs, v. John O. MARSH, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

616 F. Supp. 32

Eric M. ENOS, et al., Plaintiffs, v. John O. MARSH, et al., Defendants.

Civ. No. 82-0571.

United States District Court, D. Hawaii.

January 5, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan T. Murakami, John Harris Paer, Boyce R. Brown, Jr., Honolulu, Hawaii, for plaintiffs.

Tany S. Hong, Atty. Gen., Randall Y.K. Young, Deputy Atty. Gen., Honolulu, Hawaii, for State of Hawaii, Higashionna & Ono.

Tany S. Hong, Atty. Gen., Annette Y.W. Chock, Deputy Atty. Gen., Honolulu, Hawaii, for Hideto Kono.

Daniel Bent, U.S. Atty., Honolulu, Hawaii, by Carol Muranaka, Asst. U.S. Atty., Honolulu, Hawaii, and Fred R. Disheroon, Washington, D.C., for James G. Watt.

FONG, Chief Judge.

ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND GRANTING FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION.

This is an action by certain Waianae Coast residents and various organizations composed of Waianae residents for declaratory and injunctive relief, seeking in the main to stop the construction of the deep draft harbor at Barbers Point. The defendants include the Secretary of the Army, the District Engineer for the Honolulu U.S. Army Engineer District and the State Departments of Transportation, Land and Natural Resources, and Planning and Economic Development.

The plaintiffs allege various violations of the Water Resources Development Act of 1974, at 42 U.S.C. § 1962d-17 (WRDA), the National Environmental Policy Act of 1970, 42 U.S.C. § 4331 et seq. (NEPA), the Historic Sites Act of 1935 (HSA), the National Historic Preservation Act of 1966 (HSPA), the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (ESA), certain Corps regulations relating to the failure to monitor cultural resources, 40 C.F.R. 1505.2 and 33 C.F.R. 230.13, and the Coastal Zone Management Act (CZMA).

On December 29, 1982, this court imposed a temporary restraining order enjoining all blasting operations. Plaintiffs' Motion for Preliminary Injunction came before the court for hearing on February 3-5, 1983. The court took the motion under advisement, pending the submission of proposed findings of fact and conclusions of law.

Following the hearing, however, this court found that in light of the evidence presented, there no longer existed a basis for continuation of the temporary restraining order and ordered it dissolved. The Ninth Circuit refused to overturn that decision.

Before this court is a Motion for Preliminary Injunction filed by plaintiffs, seeking to enjoin further construction of the Barbers Point Deep Draft Harbor on the island of Oahu. Plaintiffs' motion is based upon the Water Resources Development Act, the National Environmental Policy Act, and the Endangered Species Act. Plaintiffs have also moved for partial summary judgment on those claims, and seek a permanent injunction based upon these claims.

The federal defendants have filed a Cross Motion for Summary Judgment on all claims.

Also pending are plaintiffs' Motion to Supplement Record, filed August 10, 1983, which is opposed by the state defendants; the state defendants' Motion to Strike the Plaintiffs' late-filed Supplemental Memorandum in Opposition to Defendants Motion for Summary Judgment; and plaintiffs' Motion for Reconsideration of Order Denying Admission of Evidence.

II. FACTS.

The Barbers Point Deep Draft Harbor Project was authorized by Congress under Section 301 of the Rivers and Harbors Act of 1965. The harbor site is on the southwest ("Leeward") coast of the island of Oahu, in the Ewa District and adjacent to the Waianae District. When completed, it will provide a second deep draft harbor on Oahu for commercial and industrial use.

The principal features of the project will be an entrance channel 4280 feet long, 450 feet wide and 38-42 feet deep, and a 92-acre inner harbor. The project is expected to take about two years for its completion.

The project, as authorized, is the joint responsibility of the United States Army Corps of Engineers and the State of Hawaii, through its Department of Transportation. The Corps is responsible for the construction of the entrance channel and harbor basin. The State of Hawaii will provide, inter alia, all lands, easements, rights of way, a portion of the project's costs, and shoreside terminal and transfer facilities.

In 1975, prior to the start of construction, the Corps initiated environmental studies pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., (NEPA). On April 30, 1976 the Corps prepared and circulated a draft Environmental Impact Statement (EIS) for the project. The final EIS was filed on December 27, 1976 and the January 1977 Supplement to the final EIS was filed on February 27, 1977.

The Corps awarded the construction contract to Peter Kiewit Sons Company in March, 1982, pursuant to a court order, and construction commenced in August of that year.

III. NATIONAL ENVIRONMENTAL POLICY ACT.

A. Test for Preliminary Injunction.

In environmental cases, the "preferred"¹ test for granting a preliminary injunction is a tripartite one: (1) whether the movants have established a strong likelihood of success on the merits, (2) whether the balance of irreparable harm favors the movants, and (3) whether the public interest favors granting the injunction. National Wildlife Federation v. Adams, 629 F.2d 587, 590 (9th Cir.1980); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 (9th Cir. 1978); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir.1977).

As to the second element, the court in Friends of the Earth v. Coleman, 518 F.2d 323 at 330 (9th Cir.1975), has stated in dicta that "irreparable damage may in the context of an action to enforce NEPA be implied from the failure by responsible authorities to evaluate fully the environmental impact of the proposed project, and consider alternative proposals before engaging in a project which constitutes major federal action," although such considerations are not controlling where the movants show little likelihood of prevailing on the merits.

In Cady v. Morton, 527 F.2d 786 (9th Cir.1975), the court stated:

Although failure to comply with NEPA will ordinarily call for an injunction halting the challenged action until the Act's requirements are met, in unusual circumstances an application of traditional equitable principles may justify denial or limitation of injunctive relief."

Id. at 798 n. 12.

The Ninth Circuit has recognized that the second and third elements of the tripartate test:

merge into a single equitable judgment in which the environmental concerns of the movants must be weighed against the societal interests which will be adversely affected by granting the relief requested, a process which must be significantly affected by the realities of the situation.

Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 (9th Cir.1977). See also National Wildlife Federation, 629 F.2d at 590 (affirming the trial court's denial of preliminary injunction on the grounds that appellants had not demonstrated a strong likelihood of success on the merits and that the public interest would suffer far more serious harm if injunctive relief were granted than would the movants if it were not).

In sum, the test for determining whether to grant or deny a preliminary injunction in this case is (1) whether the plaintiffs can demonstrate a strong likelihood of success on the merits and (2) whether the harm to plaintiffs' environmental interests in denying the injunction outweighs the harm to the public interest in granting the injunction.

In determining whether to issue a preliminary injunction in a NEPA case, an important consideration is the analysis presented in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). In that case, the issue before the court was a violation of the Federal Water Pollution Control Act. The court found that, although there was a violation of the permit requirements of the Act, an injunction would not automatically issue because there were other provisions to insure compliance, such as fines and criminal penalties.

The court stated that not every violation of a statute would require an injunction, and that the basis for injunction always has been irreparable injury and the inadequacy of legal remedies. A court must therefore generally continue to balance the conveniences to the parties and the possible injuries to them in determining whether to grant injunctive relief.

The court did note that in TVA v. Hill, an ESA case, the purposes of the ESA limited the remedies available to the court. Since the ESA contemplated only a ban on destruction of endangered species or their critical habitat, the only relief possible under this act was an injunction. The ESA was contrasted with the Federal Water Pollution Control Act, which did provide other remedies which would equally well serve the purposes of the Act.

There are two ways of looking at NEPA in light of Romero-Barcelo. One way is that, like the ESA, NEPA has a single purpose — a purely procedural one. As a procedural statute, there is no way to comply with a violation of NEPA other than to require the agency to follow the specified procedures. When there is a violation of NEPA, therefore, the presumptive remedy is to enjoin the activity of the agency until the procedural requirements are followed.

This court, however, finds that the proper view of NEPA is that there are both procedural and substantive goals of the Act. The substantive goal would be to insure that the decision makers can make an informed choice. Thus, although there may be a technical violation of procedural requirements, an injunction will not necessarily issue if the decision maker is otherwise fully informed as to the environmental consequences of the the proposed action. This view is consistent with Cady and Friends of the Earth, supra, and with the holding of Warm Springs v. Gribble, 621 F.2d 1017 (9th...