Half Moon Bay Fishermans' Marketing Ass'n v. Carlucci

Decision Date15 September 1988
Docket NumberNo. 88-2606,88-2606
Citation857 F.2d 505
PartiesHALF MOON BAY FISHERMANS' MARKETING ASSOCIATION, Steve Fitz, James Matkin Buskirk, Michael McHenry, John Szostak, Harold Janniro, Steve Trusso, and Don Dodson, Plaintiffs-Appellants, v. Frank CARLUCCI, in his capacity as Secretary of Defense, John O. Marsh, Jr., in his capacity as Secretary of the Army, Lt. General E.R. Heiberg, III, in his capacity as Commanding General of the Army Corps of Engineers, the United States Army Corps of Engineers; Port of Oakland, and the Board of Port Commissioners, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Roger Beers and Cynthia Koehler, San Francisco, Cal., for plaintiffs-appellants.

Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., for federal defendants-appellees.

Charles S. Barquist, Morrison & Foerster, San Francisco, Cal., for defendants-appellees Port of Oakland and Bd. of Port Com's.

Appeal from the United States District Court for the Northern District of California.

Before HUG, BRUNETTI and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

The plaintiffs, Half Moon Bay Fishermans' Marketing Association ("the Association") and individual fishermen, brought this action to challenge the Army Corps of Engineers' ("the Corps") and the Port of Oakland's decision to dump 500,000 cubic yards of dredged materials from Oakland's Inner Harbor Channel into the area of ocean water off Half Moon Bay known as site B1. The 500,000 cubic yards at issue in this case represent the minimum initial dredging effort necessary to deepen Oakland's Inner Harbor Channel from 35 feet to 38 feet and to construct an 1100 foot diameter, 38 foot deep turning basin, and thereby accommodate the first super containership scheduled to arrive in Oakland on June 10, 1988.

This initial dredging effort represents only 7% of the total 7 million cubic yards of material authorized to be dredged as part of the Oakland Harbor Navigation Project. See Water Resources Development Act of 1986, Pub.L. No. 99-662. The purpose of the project is to provide adequate depth and safety in Oakland Harbor to accommodate the new super containerships currently being used in the Pacific Rim trade. The project authorizes deepening both the Inner and Outer Harbor channels to 42 feet below mean lower low water ("MLLW") channel depth to accommodate these vessels, and as a result, requires the removal of approximately 7 million cubic yards of material.

On May 5, 1988, the district court denied the plaintiffs' application for a temporary restraining order. By stipulation of counsel, this proceeding was treated as the hearing on a motion for a preliminary injunction, which was also denied. The plaintiffs now ask this court to issue an injunction pending appeal, on an emergency basis, in order to restrain the defendants from commencing the dumping of the dredged materials at site B1. 1

If we deny the requested injunctive relief pending appeal, the defendants will begin dumping the dredged material immediately, thereby mooting the plaintiffs' appeal of the district court's decision. Therefore, because the "denial of an injunction pending appeal will effectively dispose of the appeal ... we decide the appeal on its merits." Matsumoto v. Pua, 775 F.2d 1393, 1395 (9th Cir.1985).

I. Standard of Review

Our review of the district court's denial of the plaintiffs' motion for a preliminary injunction is constrained by a deferential standard of review. Our role is to determine whether the district court employed the proper legal standard in denying the injunction and whether it abused its discretion in applying that standard. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). In this circuit, the proper legal standard for denial of a preliminary injunction is whether the movant failed to establish "probability of success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardship tips sharply in its favor." Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir.1987). These two legal standards "are not really two separate tests, but [rather] they are merely extremes of a single continuum." Benda v. Grand Lodge of International Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). Additionally, "the critical element in determining the test to be applied is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Id.; accord, William Inglis and Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975).

The lower court considered the plaintiffs' probability of success on the merits, the possibility of irreparable harm, as well as the balance of hardship, and on this basis, denied the plaintiffs' motion for a temporary restraining order or preliminary injunction. Because the district court used the proper legal standard when it denied the preliminary injunction, our only task is to determine whether the lower court abused its discretion in applying that standard.

We conclude that at this stage of the Oakland Harbor Navigation Project, the district court's denial of the plaintiff's motion for a preliminary injunction does not amount to an abuse of discretion. The defendants have minimally complied with Section 102(2)(C) of the National Environmental Protection Act ("NEPA"), 42 U.S.C. Secs. 4321, et seq (1982), Section 103 of the Marine Protection, Research, and Sanctuary Act ("MPRSA"), 33 U.S.C. Sec. 1413(a) (1986), and all regulations promulgated under these statutes, with regard to the initial dumping of 500,000 cubic yards of dredged materials at site B1B. Even this minimal degree of compliance with the applicable statutes and regulations diminishes the plaintiffs' likelihood of success on the merits. On the other side, the defendants' hardship resulting from delaying the dredging and dumping of material appears to outweigh the hardship to the plaintiffs in dumping material at B1B. Therefore, considering both the limited extent of this initial dredging and the limited extent of our review, we uphold the district court's denial of the plaintiffs' motion for a preliminary injunction.

II. Analysis
A. Compliance with NEPA, MPRSA, and the applicable regulations.

"The purpose of NEPA is to ensure that federal agencies are fully aware of the impact of their decisions on the environment." Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987) (citation omitted). NEPA effectuates this purpose by requiring environmental impact statements for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(C) (1982). All parties agree that the ocean dumping at issue here is a major federal action significantly affecting the quality of the human environment and that the following documents were prepared in this case: two final environmental impact statements ("FEIS") filed in 1981 and 1985, a draft supplement to the FEIS ("draft supplement") filed in September 1987, and a final supplement to the FEIS ("final supplement") filed in March 1988. The parties, however, dispute whether these documents, particularly the draft supplement and final supplement, satisfy NEPA's requirements.

"NEPA is essentially a procedural statute." Oregon Environmental Council v. Kunzman, 817 F.2d at 492 (citation omitted). As a result, a district court will only set aside agency action if it was undertaken "without observance of the procedure required by law," Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(D) (1982), or was "arbitrary, capricious, an abuse of discretion, or otherwise not according to law." Oregon Environmental Council v. Kunzman, 817 F.2d at 492 (citation omitted); see also 5 U.S.C. Sec. 706(2)(A) (1982).

The reviewing court may not "flyspeck" an EIS, Northwest Indian Cemetery Protective Association v. Peterson, 795 F.2d 688, 695 (9th Cir.1986) (quotation omitted), or "substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action." California v. Block, 690 F.2d 753, 761 (9th Cir.1982). Instead, the reviewing court must follow a "rule of reason" and determine whether the EIS "contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences." Id. (quotation omitted). This review requires the district court to make a "pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and informed public participation." Id. If the agency has taken a "hard look" at a decision's environmental consequences, the decision must not be disturbed. Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21, 96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576 (1976).

1. Notice and Opportunity to Comment.

The 1985 FEIS selected Alcatraz as the disposal site for the material dredged from the Oakland Harbor. However, the draft supplement modified this disposal plan. Instead of dumping the Oakland material directly at Alcatraz, the draft supplement proposed predredging material from Alcatraz, disposing of it at a designated ocean disposal site, and then disposing of the Oakland dredged material at Alcatraz. Both sites B1 and 1M were listed in the draft supplement as potential ocean disposal sites for the material to be dredged from Alcatraz. However, the plaintiffs contend that the draft supplement did not provide adequate notice that site B1 was being considered as a potential disposal site because the draft supplement specifically stated that site 1M "has been selected as the appropriate disposal site for dredged material from the Oakland...

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