Ground Zero Center for Non-Violent Act. v. Us Navy

• Decision Date: 21 September 2004
• Docket Number: No. 02-36096.,02-36096.
• Citation: 383 F.3d 1082
• Parties: GROUND ZERO CENTER FOR NON-VIOLENT ACTION; Waste Action Project; Washington Physicians for Social Responsibility; Cascadia Wildlands Project; Peace Action of Washington; Mary Fleysteen; Glen Milner, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE NAVY; Duane Baker, Jr., Captain, Commanding Officer, Naval Submarine Base, Bangor; Bruce A. Gustion, III, Captain, Commanding Officer, Strategic Weapons Facility, Pacific, Naval Submarine Base, Bangor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1082

383 F.3d 1082

GROUND ZERO CENTER FOR NON-VIOLENT ACTION; Waste Action Project; Washington Physicians for Social Responsibility; Cascadia Wildlands Project; Peace Action of Washington; Mary Fleysteen; Glen Milner, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE NAVY; Duane Baker, Jr., Captain, Commanding Officer, Naval Submarine Base, Bangor; Bruce A. Gustion, III, Captain, Commanding Officer, Strategic Weapons Facility, Pacific, Naval Submarine Base, Bangor, Defendants-Appellees.

No. 02-36096.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2004.

Filed September 21, 2004.

David S. Mann, Gendler & Mann, LLP, Seattle, WA, for the plaintiffs-appellants.

Kathryn E. Kovacs, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-01-05339-FDB.

Before BRUNETTI, McKEOWN, and GOULD, Circuit Judges.

GOULD, Circuit Judge:

At issue is a challenge under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., to the United States Navy's ("Navy") Trident II missile upgrade program at its submarine base in Bangor, Washington. Appellants Ground Zero Center for Nonviolent Action, Waste Action Project, Washington Physicians for Social Responsibility, Cascadia Wildlands Project, Peace Action of Washington, Mary Fleysteen, and Glen Milner, (collectively, "Ground Zero") maintain that the Navy failed to review the probable significant environmental impacts of an accidental explosion of a Trident II(D-5) missile during operations at Bangor, and failed to consult the National Marine Fisheries Service ("NMFS") regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the Bangor submarine base.

I

The Navy developed the Fleet Ballistic Missile system during the Cold War as a "survivable retaliatory strike force," in the Navy's terminology, that can be launched from submarines deployed at sea if there is a prior nuclear attack against the United States.¹ The Trident II, or D-5, intercontinental ballistic missile, first deployed by the Navy in 1990, is the sixth and most recent generation of this missile system. The Trident II missile is the replacement for the fifth generation Trident I, or C-4, missile. The Trident I missile was initially deployed in 1979, and is presently being phased out of the Navy's arsenal.

The Navy's Ohio, or Trident, class ballistic missile submarine serves as the primary launching platform for the Trident I and II missiles. Each of the eighteen Trident class submarines in the Navy's fleet is equipped to carry and launch twenty-four Trident missiles, and this program is a major part of the United States's strategic arsenal. Two naval bases serve as the home ports for the Trident submarine fleet: Naval Submarine Base Kings Bay, Georgia, located on the Atlantic Ocean just north of the Florida border, and Naval Submarine Base Bangor, Washington, located on the eastern shoreline of the Hood Canal in the Puget Sound Basin, approximately 15 miles west of the city of Seattle and 10 miles north of the city of Bremerton.

Naval Submarine Base Bangor ("Bangor") was selected by the Navy in the early 1970's as the first dedicated full-support facility in the continental United States for the Trident I missile system. After a review of eighty-nine potential sites considering both the operational requirements and the environmental impacts of the Trident program, the Navy settled upon Bangor as its prospective site. Upon selection of Bangor, the Navy undertook a detailed assessment of the impacts of Trident program on the community and environment surrounding the base, culminating in issuance of a final Environmental Impact Statement ("EIS") in July, 1974.²

The Navy supplemented the 1974 EIS four times: once in 1976, twice in 1977, and once in 1978. Both the 1974 EIS and the four supplements considered that the Bangor base could be upgraded at an unspecified future date to accommodate the Navy's conversion from the fifth generation Trident I to the sixth generation Trident II system.

In the mid-1980's, the Navy settled on a plan to upgrade eight Trident submarines in the Bangor fleet, originally fitted to carry Trident I missiles, so that they could accommodate the newer-generation Trident II missile. This plan required a corresponding upgrade of the Trident I storage and handling facilities at Bangor to make these facilities compatible with the larger Trident II missile. Because the specifications for the final upgrade plan, the "D-5 [Trident II] Backfit Facility Program" ("Backfit Program"), varied from the conversion assumptions made in the 1974 EIS and its supplements, the Navy in 1989 issued an Environmental Assessment addressing the potential impact of the Backfit Program on the Bangor environment. The 1989 Environmental Assessment incorporated the assumptions drawn in the 1974 EIS, and independently considered only new requirements and impacts not addressed in the 1974 EIS. Based on the analysis in the 1989 Environmental Assessment, the Navy issued a Finding of No Significant Impact, concluding that "the TRIDENT D-5 Upgrade Program at [Bangor] will not have a significant impact on the quality of the human environment."

The Navy planned to commence construction on the Backfit Program in 1989, at a projected cost of $248 million. But the sudden end of the Cold War led to a domestic debate on the necessary scope of the Fleet Ballistic Missile system, and resulted in postponement of the Backfit Program. In 1994, following a comprehensive Nuclear Posture Review, President William Jefferson Clinton scaled back Trident operations at Bangor, but determined that the Backfit Program should proceed at a reduced scale. The revised Backfit Program, about one-third the size and one-tenth the cost of the original 1989 plan, commenced in 2000.

In light of President Clinton's decision to redesign the scope of the Backfit Program, the Navy reexamined the 1974 EIS and supplements, as well as the 1989 Environmental Assessment. The Navy's review concluded that because the scaled back Backfit Program was a reduced version of the upgrade program first analyzed in 1989, the environmental impacts of the Backfit Program were consistent with and contained in the 1989 Environmental Assessment analysis. The Navy therefore did not prepare further NEPA documentation for the Backfit Program.

In March 1999, the National Marine Fisheries Service ("NMFS") listed as threatened under the ESA two fish species found in the vicinity of the Bangor base, the Hood Canal Summer Run Chum Salmon and the Puget Sound Chinook Salmon. In coordination with the NMFS, the Navy reanalyzed the potential impact of the Backfit Program on these threatened species in a series of Biological Assessments. The Navy's Biological Assessments concluded that the Backfit Program would have no adverse effect on these species. The Navy also forwarded the results of these assessments to the NMFS, which did not issue a response. The Navy decided that it did not need to prepare any NEPA documentation in response to the threatened species listing.

On June 22, 2001, Ground Zero filed suit in the United States District Court for the Western District of Washington alleging violations of NEPA and the ESA, and seeking injunctive relief against the Backfit Program. On January 17, 2002, the district court granted the Navy partial summary judgment with respect to Ground Zero's claims that the Navy was required to evaluate the environmental impacts of storing and handling Trident II missiles armed with nuclear warheads at Bangor, the environmental impacts of potential terrorist attacks on the base, and the environmental impacts of a possible earthquake or tsunami. After oral argument, the district court on October 28, 2002, granted the Navy summary judgment on Ground Zero's remaining claims. The district court held: (1) that the Navy was not required to publish a new EIS for the Backfit Program because the impacts of the Backfit Program were covered in the 1989 Environmental Assessment and the Navy's decision not to publish an EIS was entitled to deference; (2) that the Navy was not required to publish a supplemental EIS for the Backfit Program; and (3) that the Navy complied with the ESA when it evaluated impacts of the Backfit Program on the threatened salmon species.

On this appeal, Ground Zero makes three contentions. First, Ground Zero asserts that NEPA requires the Navy to issue a new or supplemental EIS assessing the environmental risk of an accidental explosion of a conventionally armed Trident II missile during operations at Bangor. Second, Ground Zero claims that NEPA further requires the Navy to assess the environmental impact that would occur from an accidental explosion of a Trident II missile armed with nuclear warheads.³ Third, Ground Zero contends that the Navy violated the ESA by failing to consult with the NMFS about the potential effect of an accidental Trident II explosion on the threatened salmon species found in Hood Canal waters. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

II

We review de novo a district court's grant of summary judgment. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995). "We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied substantive law." United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.2003). We may affirm summary judgment on any ground supported by the record. Solomon v. Interior Reg'l Hous. Auth., 313 F.3d 1194, 1196 (9th Cir.2002). Because neither NEPA...