Ground Zero Ctr. for Nonviolent Action v. U.S. Dep't of the Navy

• Decision Date: 11 January 2013
• Docket Number: Case Nos. 12–cv–5537,12–cv–1455.
• Parties: GROUND ZERO CENTER FOR NONVIOLENT ACTION, Washington Physicians for Social Responsibility, and Glen S. Milner, Plaintiffs, and The Suquamish Tribe, Plaintiff, v. UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

918 F.Supp.2d 1132

GROUND ZERO CENTER FOR NONVIOLENT ACTION, Washington Physicians for Social Responsibility, and Glen S. Milner, Plaintiffs,
and
The Suquamish Tribe, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants.

Case Nos. 12–cv–5537, 12–cv–1455.

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

Jan. 11, 2013.

[918 F.Supp.2d 1137]

James E. Lobsenz, Carney Badley Spellman, Seattle, WA, Katherine A. George, Harrison Benis & Spence, Seattle, WA, James Rittenhouse Bellis, Melody L. Allen, Suquamish Tribe, Suquamish, WA, Julie K. Ainsworth–Taylor, David A. Bricklin, Bricklin Newman LLP, Seattle, WA, for Plaintiffs.

Brian C. Kipnis, U.S. Attorney's Office (Sea) Seattle, WA, Luther Langdon Hajek, U.S. Department of Justice Denver, CO, Peter K. Dykema, U.S. Department of Justice Washington, DC, for Defendants.

ORDER DENYING PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION
RONALD B. LEIGHTON, District Judge.
I. Introduction

Before the Court are Motions for Preliminary Injunction filed by the Suquamish Tribe and Ground Zero Center for Nonviolent Action. Case Nos. 12–cv–1455, Dkt. # 15; No. 12–cv5537, Dkt. # 19. Plaintiffs seek to enjoin the United States Navy from constructing a second explosives handling wharf (“EHW–2”) at Naval Base Kitsap in Bangor, Washington. The existing explosives handling wharf

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(“EHW–1”) requires increasing maintenance, and the Navy concluded that a second wharf is needed to meet the basic requirements of the Trident ballistic-missile program.

Plaintiffs challenge the Navy's decision to build the second wharf under the National Environmental Policy Act (“NEPA”), arguing that the Navy wrongly withheld certain information, that the Navy failed to consider a wide enough range of alternatives, that the Navy failed to fully discuss efforts at mitigating harm to protected species, and that the Navy's environmental analysis masks harm to salmon. The Suquamish Tribe further argues that the proposed wharf abrogates fishing rights secured to them by treaty and violates the Endangered Species Act (“ESA”).

For the reasons set forth below, Plaintiffs' motions are denied.

II. Factual Background A. The Trident Program and Explosive Handling Wharfs

The U.S. Navy's Trident program is a sea-based deterrent missile system. Decl. of Rear Adm. Terry J. Benedict ¶ 3, Dkt. # 28–3. The Trident II fleet ballistic missile is a “submarine-launched ballistic missile that can be armed with nuclear warheads.” Id. Unsurprisingly, Trident missiles and submarines require specialized facilities, including the explosive handling wharfs at issue here. Id. “The adequacy of the Trident Support Facilities is a matter of significant importance to national security. This is particularly true for the EHWs because the Navy must frequently move the Trident II missiles on and off of the submarines....” Id. at ¶ 13. The wharfs allow the Navy to conduct maintenance and upgrades to the submarines. Id. Bangor currently has one explosive handling wharf.

The current wharf operates continuously during the year, less 60 days allotted for maintenance (and other limiting factors). Id. at ¶ 17. This period—one year minus 60 days—constitutes the wharf's “operational capacity.” Id. Until recently, the EHW–1 met the Navy's needs.

In the 1990s, the Navy began using a new type of missile: the Trident II D5. EIS at 1–5. The D5 “is larger, more complex, and requires more time to handle and maintain than the [previous missiles].” Id. at 1–6. Thus, the Navy started the “D5 Life Extension Program” in order to upgrade the missiles—particularly their electronics—as they become “technologically obsolescent.” Id. As the missiles age, upgrades and maintenance naturally will become more frequent—necessitating increasing use of the explosives handling wharf. Id.

Like the missiles, the existing wharf needs increasing maintenance, including replacement of its piles. EIS at 1–6. It cannot, of course, be used during much of the construction period, and the wharf's operational capacity will thus decline. Benedict Decl. at ¶ 21. Indeed, the Navy expects EHW–1's operational capacity to decline so much as to create an “operational shortfall,” which “represents a risk to the operability, reliability, safety, and security of the Trident II system, and ultimately, to national security.” Id. at ¶ 18. During the repair period, the existing wharf will be available only 185 days per year. EIS at 1–6. But, due to the D5 Life Extension Program, the Navy has determined a need for 400 operational days. Id. Thus, even after repairs to EHW–1 are complete, the existing wharf will still be unable to meet the Navy's needs. Without a second wharf—EHW–2—the Navy argues that it will “become increasingly unable to manage the risks associated with the operational shortfall.” Benedict Decl. at ¶ 19.

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In short, facing the need for 400 operating days, the Navy concluded that a second explosive handling wharf was necessary.

B. The Navy's Environmental Review Process

Before obtaining a permit to build the EHW–2, the Navy conducted an environmental review, as required by NEPA, the Clean Water Act, the Endangered Species Act, the Marine Mammal Protection Act, and the Coastal Zone Management Act. Defs.' Resp. at 3, Dkt. # 28; EHW61669.¹ The environmental review commenced with a notice of intent to prepare an EIS published on May 15, 2009. EHW61668.

As part of the environmental review, the Navy conducted a biological assessment to analyze the effects of EHW–2 on several ESA-listed species. EHW47377–560. The Navy determined that the second wharf “was likely to adversely affect” ESA-listed species, and thus, it requested that the National Marine Fisheries Service prepare a biological opinion (“BiOp”). EHW47388. On September 29, 2011, the Fisheries Service issued its BiOp and incidental take statement, concluding that the proposed wharf would not affect the population viability of the ESA-listed salmon species (despite some injury or death to individual fish), and therefore, the species would not be jeopardized. EHW57359–360.

In February 2011, although the Navy had not yet completed its EIS, it requested $715 million from Congress to build a second wharf. Ground Zero's Mot. for Prelim. Inj. at 2, Dkt. # 19.

On March 18, 2011, the Navy circulated a draft-EIS for public comment. EHW61668–669. The draft disclosed that the Navy intended to install 1,250 steel pilings and that the wharf would cover 6.3 acres of water and extend 600 feet from the shoreline. See Tribe's Mot. for Prelim. Inj. at 3, Dkt. # 15. Among other considerations, the draft-EIS explored the effects of underwater construction noise and the presence of the wharf on ESA-listed species. See id. On October 3, 2011, the Navy released a supplement to the draft-EIS for public comment. EHW61669.

The Navy published a notice of availability of the final EIS on March 30, 2012. 77 Fed. Reg. 19281 (Mar. 30, 2012). A record of decision was issued on May 4, 2012, and published on May 18, 2012. EHW65073–65097; Notice of Availability of EHW–2 R.O.D., 77 Fed. Reg. 29620 (May 18, 2012).

In the EIS, the Navy examined (among other things) the effects of underwater construction noise on marine mammals, birds, and fish, the effects on food sources, and the effects on traffic near Bangor. See generally EIS at x-xvi. The EIS disclosed that underwater construction noise may cause levels of sound injurious to fish. See, e.g., EIS at 3.4.2.7. The Navy also considered mitigation measures to reduce potential damage caused by construction, including: (1) efforts to protect marine water quality and seafloor during construction; (2) a limited in-water work window; (3) efforts to protect upland water quality during construction; (4) efforts to protect water quality during operation; (5) noise attenuation techniques during construction; (6) monitoring noise impacts; and (7) mitigation measures for biological, cultural, and other resources. See EIS, App. F at 19 (summarizing mitigation plan). Additional

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mitigation measures include limiting the use of impact hammering, which creates higher levels of injurious sound, and a “soft-start approach for ... pile driving to provide a warning to fish prior to the drivers operating at full capacity.” Defs.' Resp. at 24, Dkt. # 28; EHW 47408, 47410–411.

Additionally, the Navy considered five alternative forms for the new wharf: (1) a combined trestle with large pile wharf (the preferred alternative); (2) a combined trestle with conventional pile wharf; (3) separate trestles with large pile wharf; (4) separate trestles with conventional pile wharf; and (5) a combined trestle with floating wharf. EIS at 2–3.

The Navy identified these alternatives based upon: (1) their capability of meeting Trident mission requirements; (2) the ability to avoid or minimize environmental consequences; (3) siting requirements, including proximity to existing infrastructure; (4) the availability of waterfront property; (5) the ability to construct essential project features; and (6) master planning issues, such as explosive safety restrictions. EIS at 2–1. The Navy also considered a “no-action alternative,” but as outlined above, the Navy argues that the need for increased operational days mandates action.

C. Construction Plans for EHW–2

Plans for the second wharf were detailed in the EIS. EIS Fig. 2–2; EHW 61680. The EHW–2 would be located 600 feet offshore in water 60–100 feet deep. EHW 61679. The wharf would consist of a launch wharf and a warping wharf extending from the main wharf to line up submarines and provide a safety barrier between a submarine and EHW–1. LaPlatney Decl. at 6, Dkt. # 38; EHW 61680.

Construction of EHW–2 is scheduled between September 2012 and January 2016. Id. at 3. Offshore construction would include installation of piles using hammers and pile drivers. EIS at 2–6. The Navy estimates that less than 1,000 impact strikes a day are likely necessary...