Hawaii County Green Party v. Clinton

Decision Date10 July 2000
Docket NumberNo. Civ.A. 98-232 ACK.,No. Civ.A. 00-166 ACK.,Civ.A. 98-232 ACK.,Civ.A. 00-166 ACK.
Citation124 F.Supp.2d 1173
PartiesHAWAII COUNTY GREEN PARTY, Plaintiff, v. William Jefferson CLINTON, in his official capacity as President of the United States, et al., Defendants. Hawaii County Green Party, et al., Plaintiffs, v. William Jefferson Clinton, in his official capacity as President of the United States, et al., Defendants.
CourtU.S. District Court — District of Hawaii

Lanny Sinkin, Hilo, HI, for Plaintiff.

Thomas A. Helper, Office of the United States Attorney, Honolulu, HI, Mark A. Brown, U.S. Department of Justice, Environment & Natural Resources, Division, Washington, DC, for Defendants.


KAY, District Judge.


The Court GRANTS Defendants' Motion to Dismiss Civ. No. 00-166. This action was brought prematurely, as at this point in time the Navy's EIS-OEIS application for its SURTASS LFA program has not been approved. While the Navy has expended substantial funds on research, including research vessels, over the past years, the Court concludes that this does not constitute an irretrievable and irreversible action such that the agency is "locked in" to proceeding with this program. Once approved, Plaintiffs will have an opportunity to timely challenge the EIS. The Navy agreed (via an in court stipulation that includes an exception that the stipulation will be revisited if national security so dictates) that there will be no SURTASS LFA testing or deployment around the Hawaiian Islands until after the OEIS and EIS process is complete, they have been approved, and the Notice of Record of Decision is published for 30 days in the Federal Register. This will provide Green Party and others an opportunity to file legal challenges prior to deployment. Accordingly, at this stage, the Court finds that the claims brought by Plaintiffs are not ripe for suit, and that the Plaintiffs lack standing. The Court further finds that Plaintiffs have failed to comply with the 60 days jurisdictional notice requirement with respect to two of their ESA claims.

Furthermore, the Court finds that Plaintiffs have not established extraordinary grounds that would warrant reopening Civ. No. 98-232, which was previously dismissed by this Court. The Court notes that the basis for the requested reopening is founded on facts that have arisen subsequent to the dismissal of the case. Accordingly, the Motion to Reopen is DENIED.

Despite the above outcome, the Court notes and expresses its concern that, according to an independent study sponsored by the Navy, low frequency sonar tests do indeed affect marine life. Although the researchers are not sure whether the tests have a harmful impact, they recommend at the very minimum that the Navy should avoid active breeding areas when performing tests. Further, the Court notes that the article states that whales breed and calf off Hawaii in the winter and spring before migrating north to the Gulf of Alaska. Following these recommendations would seem to have a severe impact on any testing off Hawaii. See Navy study indicates sonar has effect on whales, Honolulu Advertiser, June 22, 2000, at A3.


Two motions in two cases came before the Court in a hearing on June 13, 2000. The Hawaii County Green Party (individually, "Green Party") and other environmental organizations and activists (collectively, "Plaintiffs") filed a complaint February 29, 20001 ("the 2000 case") against President Clinton and various other federal officers, including the secretaries of commerce, defense, and the Navy and certain officers of the National Marine Fisheries Service ("NMFS") (collectively, "Defendants").2 In the first motion, Green Party seeks to reopen an action that it filed in 19983 ("the 1998 case") which was dismissed. Once reopened, it asks that the 1998 case be consolidated with the 2000 case. In the second motion, Defendants seek to have the 2000 case dismissed for lack of subject matter jurisdiction.


Green Party filed its Motion to Set Aside Order and to Consolidate Reopened Case with Pending Case ("Motion to Set Aside") on March 14, 2000. The crux of the Motion to Set Aside is a request that the order granting President Clinton and other defendants' (collectively "Defendants")4 motion to dismiss5 be set aside that the case be reopened, and that it be consolidated with the 2000 case. Green Party supplemented the Motion to Set Aside with filings submitted on March 16, 2000 ("First Supplement") and May 28, 2000 ("Second Supplement").6 Defendants filed their opposition ("Opp.Mot. Set Aside") on May 26, 2000. Green Party filed its reply brief (Reply Mot. Set Aside) on June 2, 2000. Defendants filed their Response to the Second Supplement ("Resp. Second Supplement"), per leave of the Court, on June 6, 2000.

A. The 1998 Case and its Dismissal

In February of 1998, the United States Department of Commerce via the NMFS, under the authority of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq., issued a permit that allowed the United States Navy to conduct low-frequency active sonar tests and research ("sonar research") off the coast of the island of Hawaii. The Navy was performing the sonar research to both investigate the effectiveness of its Surface Towed Array Surveillance System Low Frequency Active ("SURTASS LFA") system and to test the potential effects of the SURTASS LFA system on whales. SURTASS LFA is a defense system that, if deployed, would be used to detect enemy submarines. See Mot. Dismiss 2000 Case at 1, 9 (describing SURTASS LFA technology). Phase III of the SURTASS LFA testing was to focus on the breeding and nursing behavior of whales. The sonar research was anticipated to last twenty-five to thirty days and was being conducted to gather information for the Environmental Impact Statement ("EIS") the Navy was (and is)7 compiling on SURTASS LFA. See id. at 9-11.

Green Party filed its complaint in the 1998 case on March 18, 1998. An amended complaint was filed on March 20, 1998. Green Party claimed that Defendants violated the Permit by failing to suspend the SURTASS LFA testing when conditions arose8 which the environmental assessment and/or permit identified as requiring suspension and/or termination of the sonar research. Green Party sought an injunction barring the Navy from continuing the Phase III SURTASS LFA testing and barring the NMFS from issuing permits to perform future SURTASS LFA testing in Hawaiian waters. The complaint also requested the Court to make various declarations of wrongdoing by Defendants because of their behavior regarding the permit and the Phase III testing. See Hawaii County Green Party v. Clinton, 14 F.Supp.2d 1198, 1199, 1202 (D.Haw.1998) ("HCGP").

After denying Green Party's motion for a temporary restraining order,9 the Court held a hearing on Defendants' motion to dismiss the 1998 case and on Green Party's motion for declaratory relief and preliminary injunction. In an order filed August 7, 1998, the Court found Green Party's claims for relief moot and dismissed the action for lack of subject matter jurisdiction. The Court first addressed Green Party's request for an injunction to revoke the permit for Phase III testing and to enjoin the NMFS from issuing future permits to allow SURTASS LFA research in Hawaiian waters. The Court found that Defendants had satisfied the "heavy burden" of proving mootness. See id. at 1201. The Court found that the Phase III research had been completed by the time of the hearing, that there were no plans to resume any sonar testing, and that Defendants lacked authority to resume testing because the permit had expired. See id. In short, the Court found that the activity underlying the claim for relief was complete, could not be undone, and was therefore moot. See id. at 1202. The Court dismissed the claims for declaratory relief as moot for the same reasons. See id. The Court rejected Green Party's argument that it should proceed to the merits of the case because there was a possibility that the Navy would recommence its research, finding that possibility too remote. See id. Finally, the Court held that the "capable of repetition, yet evading review" exception to mootness did not apply to save Green Party's case. The Court found that, because the permit had expired, there was no reasonable expectation that the SURTASS LFA testing would resume. The Court also found that the injury claimed was not so limited in duration that it "evaded" judicial review. See id. at 1202-03. The Court pointed to the fact that a TRO had been litigated on the merits and that by law future tests, if any, could occur only after Defendants went through a lengthy permit application process. See id.

B. Green Party's Motion to Set Aside the Order Dismissing the 1998 Case

In a motion filed on March 14, 2000, Green Party claims that the Navy intends to conduct further SURTASS LFA testing in the waters off Hawaii. See Mot. to Set Aside Order at 3. Relying on Fed.R.Civ.P. 60(b)(6), and arguing that this new information means that the grounds for declaring the 1998 case moot have "disappeared," Green Party asks the Court to reopen the 1998 case. See id. at 6.

1. Green Party's Factual Allegations and Arguments

Green Party does not allege that Defendants fraudulently changed position or hid their desire to do more testing from the Court in 1998. See id. at 8. Instead, Green Party alleges that Defendants "changed their position sometime after the dismissal of the [1998] case." See id. The new position is that the Navy will be conducting additional LFA testing as part of its research to...

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