Friends of the Earth v. Hall

• Citation: 693 F. Supp. 904
• Decision Date: 11 August 1988
• Docket Number: No. C88-380R.,C88-380R.
• Parties: FRIENDS OF THE EARTH, et al., Plaintiffs, v. Colonel Philip L. HALL, et al. Defendants.
• Court: U.S. District Court — Western District of Washington

693 F. Supp. 904

FRIENDS OF THE EARTH, et al., Plaintiffs, v. Colonel Philip L. HALL, et al. Defendants.

No. C88-380R.

United States District Court, W.D. Washington, at Seattle.

July 20, 1988.

Order Granting Motion to Clarify Injunction August 9, 1988.

Memorandum Decision August 11, 1988.

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Todd D. True, Victor M. Sher, Corrie J. Yackulic, Sierra Club Legal Defense Fund, Inc., Seattle, Wash., for plaintiffs.

Brian Faller, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for defendants.

Order Granting Plaintiffs' Motion to Clarify Injunction August 9, 1988.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND PERMANENT INJUNCTION

ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on a motion for summary judgment and a permanent injunction brought by Friends of the Earth and other environmental organizations ("FOE") under their complaint for declaratory and injunctive relief. The instant motion concerns only defendant Army Corps of Engineers ("Corps") and defendant the United States Navy ("Navy"). FOE asks the court to find that the environmental impact statements ("EIS") prepared by the Navy and the Corps violated the environmental disclosure and informed decision-making requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and that the Corps erred as a matter of law in granting the Navy a dredge and fill permit under Section 404 ("404 permit") of the Clean Water Act ("CWA"), 33 U.S.C. § 1344. FOE seeks an injunction setting aside the Navy's plans to dredge sediments in Everett Harbor and deposit them in Port Gardner Bay until such time as the Navy and the Corps adhere to their obligations under the environmental laws of the United States. Pursuant to the government's request that the court announce its decision prior to July 22, 1988, the court issues this brief order, with a full memorandum decision to follow as soon as possible. Consequently, having reviewed the motion, together with all documents filed in support and in opposition, having heard oral argument by all parties, and being fully advised, the court finds and rules as follows:

Under the Administrative Procedures Act, which governs judicial review of an agency's preparation of an EIS and of the Corps' decision to grant a 404 permit, the court "shall set aside any agency action" undertaken "without observance of procedure required by law" or found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A), (D) (1982); Northwest Coalition for Alternatives to Pesticides v. Lyng, 844 F.2d 588, 590-91 (9th Cir.1988) ("NCAP"); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986). The court recognizes that "NEPA is essentially a procedural statute" and that the court can not "substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action." NCAP, 844 F.2d at 590-91. Likewise, the court also recognizes that it cannot set aside agency action as arbitrary or capricious "unless there is no rational basis for the action." Hintz, 800 F.2d at 831.

The court has no doubt that both the Corps and the Navy made substantial efforts to meet their NEPA and CWA obligations. Nevertheless, the court concludes that, for a variety of reasons to be detailed in the memorandum decision to follow, the various EISs did not satisfy their two primary purposes: (1) providing decisionmakers with "an environmental disclosure sufficiently detailed to aid in the substantive decision whether to proceed with the project in light of the environmental consequences," and (2) providing "the public with information and an opportunity to participate in gathering information." Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 814 (9th Cir.1987). Although the Corps issued a detailed Record of Decision ("ROD") in support of its decision to issue a 404 permit, the court concludes that the ROD did not eliminate the areas of environmental concern; therefore, the Ninth Circuit's recent decision in Half Moon Bay Fishermans' Marketing A'ssn v. Carlucci, 847 F.2d 1389 (9th Cir. 1988) is not apposite. In addition, because the Corps' decision to grant the Navy a 404 permit relies heavily on the conclusions of the EISs, the rational basis underlying that decision no longer exists. Because of this, and because of various other procedural violations, the court concludes that the Corps' decision to issue a 404 permit was both arbitrary and capricious and otherwise not in accordance with law.

A grant of summary judgment is appropriate here because no genuine issues of material fact exist with respect to the Corps' and the Navy's obligations under NEPA and the CWA, and because FOE is entitled to judgment as a matter of law. See T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630-631 (9th Cir.1987). Furthermore, for the reasons to be detailed in the memorandum decision to follow, the court concludes that an injunction should issue in these circumstances. The CWA's dredge and fill permit requirements necessarily and inescapably require the issuance of an injunction. In any event, the NEPA violations are of such a nature that under traditional equity balancing the potential likelihood of environmental harm outweighs the national security concerns inherent in a delay of the Navy's homeport project. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402-04, 94 L.Ed.2d 542 (1987); Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988).

IT IS NOW, THEREFORE, ordered as follows:

Plaintiff FOE's motion for summary judgment and a permanent injunction is GRANTED. The court SETS ASIDE the Navy's 404 permit and enjoins the Navy's dredging project until such time as the Navy and the Corps comply with NEPA and the CWA as explained in the memorandum decision to follow.

IT IS SO ORDERED.

ORDER GRANTING PLAINTIFFS' MOTION TO CLARIFY INJUNCTION

THIS MATTER comes before the court on a motion by plaintiffs Friends of the Earth and other environmental groups ("FOE") to clarify the court's previously issued injunction. Having reviewed the motions, together with all documents filed in support and in opposition, and being fully advised, the court finds and rules as follows:

I

BACKGROUND

In a brief order issued pending publication of a more complete memorandum opinion, the court granted FOE's motion for summary judgment and permanent injunction. Friends of the Earth v. Hall, NO. C88-380R, Order Granting Plaintiffs' Motion for Summary Judgment and Permanent Injunction (July 20, 1988). In framing injunctive relief the court stated that it "SETS ASIDE the Navy's 404 permit and enjoins the Navy's project until the Navy and the Corps comply with NEPA and the CWA ..." Id., at 912. Based on its understanding of the court's intention, the Army Corps of Engineers ("Corps") "suspended" the Navy's permit and all work authorized under it, but allowed the Navy to continue with upland construction on the Homeport. Notice of Suspension of Navy's Permit 2 (July 28, 1988) ("Suspension Notice"). Originally, FOE merely filed a response to the Suspension Notice. The government, however, treated FOE's response as a motion to clarify or amend the court's injunction, and filed a response. FOE then filed a proper motion to clarify, accompanied by a motion to shorten time and a reply to the government's response. Because the government has already had an opportunity to respond, and has done so, and because FOE filed a reply brief, the court concludes that it is appropriate to rule on FOE's motion at this time.

II

DISCUSSION

As explained above, after suspending the Navy's permit and all work authorized under it, the Corps allowed the Navy to continue with upland construction on the Homeport, including demolition and construction over several hundred acres. Suspension Notice, at 2. According to the Navy, termination of upland construction work now underway will result in additional costs of $13 to $18 million. FOE asks the court to clarify the scope of the injunction, by expressly enjoining the entire Homeport project until the Navy and the Corps fully address all environmental concerns surrounding the project. FOE argues that the National Environmental Policy Act ("NEPA"), the National Defense Authorization Act of 1987, Pub.L. No. 99-661, § 2207 (1986) ("1987 NDAA) (copy attached as exh. 1, Plaintiffs Response to Notice of Suspension), and the National Defense Authorization Act of 1988, Pub.L. No. 100-180, § 2322 (1987) ("1988 NDAA") (copy attached as exh. 2, Plaintiffs Response to Notice of Suspension) require the cessation of all Homeport activity.

The essence of FOE's NEPA argument is that the upland work and the dredging activities are parts of one integrated project, and in order not to impair the government's ability to perform balanced, thorough, environmental analysis and unbiased decisionmaking, NEPA requires that the injunction halt the entire project because the supplemental EIS would become "merely a progress report.... if any work continued during the review of the impact statement." Stop H-3 Assoc. v. Volpe, 349 F.Supp. 1047, 1049 D.Haw.), amended, 353 F.Supp. 14 (D.Haw.1972). FOE cites additional authority for this proposition. Massachusetts v. Watt, 716 F.2d 946, 952-53 (1st Cir.1983) (barred sale of offshore leases while new EIS prepared because otherwise the new EIS "may bring about a new decision, but that it is much less likely to bring about a different one") (emphasis in original); Highland Cooperative v. City of Lansing, 492 F.Supp. 1372, 1383 (W.D. Mich.1980) (enjoining all parts of highway project because "to allow defendants to make a...