Laine v. Weinberger, CV 81-3969-AAH(Gx).

• Decision Date: 18 June 1982
• Docket Number: No. CV 81-3969-AAH(Gx).,CV 81-3969-AAH(Gx).
• Citation: 541 F. Supp. 599
• Court: U.S. District Court — Central District of California
• Parties: George & Janice LAINE; James & Francis Goodwin; Robert & Mary Lou Brophy, Plaintiffs, v. Casper WEINBERGER, Secretary of Defense; John F. Lehman, Jr., Secretary of the Navy; Admiral Thomas B. Hayward, Chief of Naval Operations; Admiral Donald C. Davis, Commander in Chief, Pacific Fleet; Captain James R. Williams, Commanding Officer of Seal Beach Naval Weapons Station; Department of the Navy, Defendants.

541 F. Supp. 599

George & Janice LAINE; James & Francis Goodwin; Robert & Mary Lou Brophy, Plaintiffs, v. Casper WEINBERGER, Secretary of Defense; John F. Lehman, Jr., Secretary of the Navy; Admiral Thomas B. Hayward, Chief of Naval Operations; Admiral Donald C. Davis, Commander in Chief, Pacific Fleet; Captain James R. Williams, Commanding Officer of Seal Beach Naval Weapons Station; Department of the Navy, Defendants.

No. CV 81-3969-AAH(Gx).

United States District Court, C. D. California.

June 18, 1982.

Leonard I. Weinglass & Linda Moreno, Los Angeles, Cal., for plaintiffs.

Stephen S. Trott, U. S. Atty., Frederick M. Brosio, Asst. U. S. Atty., Chief, Civ. Div., Stephen D. Petersen, Asst. U. S. Atty., Los Angeles, Cal., for defendants.

DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HAUK, Chief Judge.

George and Janice Laine and four other residents of Seal Beach are plaintiffs in this action for injunctive relief, seeking to enjoin operations at the United States Seal Beach Naval Weapons Station, Department of Defense, until such time as the Navy (1) files an Environmental Impact Statement (EIS) and (2) removes the "public nuisance" plaintiffs allege exists at the facility. Jurisdiction is founded on 28 U.S.C. § 1331 (existence of a Federal question), the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Court's claimed pendent jurisdiction over state controversies arising out of the same matters alleged in support of the Federal question jurisdiction. The matter is presently before the Court on the defendants' motion to dismiss or in the alternative for summary judgment. Because the Court is considering matters outside the pleadings, it shall treat the motion as one for summary judgment and dispose of it as provided by Rule 56 of the Federal Rules of Civil Procedure.

Background

The United States Naval Weapons Station at Seal Beach began operations in November 1944 and has continued operations without interruption since that time. It is the major Naval ammunition facility in Southern California, responsible for storing, maintaining and issuing ammunition to the United States Navy fleet homeported in San Diego and Long Beach, California.

Initially the land adjacent to the Naval Weapons Station was predominantly agricultural, and the surrounding Seal Beach community was relatively small, numbering less than 3,600 people. Rapid growth in the Los Angeles metropolitan area in the 1950's and 1960's, however, resulted in dramatic population growth in Seal Beach and the surrounding community. Seal Beach, alone, experienced nearly a ten-fold increase in population, and the agricultural land that previously insulated the weapons station from the community was replaced by homes and schools.

This dramatic growth in the Seal Beach area, coupled with an increasing national and local sensitivity and opposition to nuclear weapons storage, provides the backdrop for the present litigation.

Plaintiffs are six residents of Seal Beach who live within a mile of the Naval Weapons Station. They allege that the Station maintains and stores nuclear weapons and "excessive quantities" of high explosives. This activity constitutes "major federal action significantly affecting the quality of the environment," they claim. Therefore, it is argued, NEPA mandates the preparation and submission of an Environmental Impact Statement (EIS). 42 U.S.C. § 4332. In addition, plaintiffs claim that the alleged presence of nuclear weapons and excessive high explosives at the Weapons Station constitutes a public nuisance. In their prayer for relief, plaintiffs request the Court to enjoin the Navy from the further handling of nuclear weapons and high explosives at the Seal Beach facility until it (1) complies with NEPA by filing an EIS and (2) removes the complained of "public nuisance."

Based upon the recent Supreme Court decision in Weinberger v. Catholic Action, 454 U.S. 138, 102 S.Ct. 197, 70 L.Ed.2d 298 (1982), defendants bring the present motion, urging that Catholic Action is the law of this case, mandates dismissal of plaintiffs' claims and requires summary judgment for defendants.

Weinberger v. Catholic Action

Although there are some differences, Catholic Action involved facts startingly similar to those in the instant case. The controversy there centered upon a Naval weapons storage facility and a group of neighborhood citizens concerned about the possible presence of nuclear weapons, just as in this case.

The West Loch branch of the Lualualei Naval Magazine is located on the island of Oahu, Hawaii. It has been used for handling and storage of ammunition since 1959. In 1975 the Navy decided to transfer ammunition and weapons stored at other locations on Oahu to the West Loch branch. Pursuant to that decision, the Navy prepared an Environmental Impact Assessment (EIA) covering the effect on the environment of the necessary construction associated with the transfer. The Assessment concluded that the construction would have no significant environmental impact, and that by reason thereof no EIS was required.

In March of 1979, the Catholic Action of Hawaii/Peace Education Project sought an injunction in Federal Court, District of Hawaii, against the building of the new facilities until an EIS had been filed. Pursuant to the national security provisions of the Atomic Energy Act, 42 U.S.C. § 2011 et seq., and the Navy's own regulations relating to nuclear weapons, the District Court denied the injunction, concluding that the Navy had complied with NEPA to the fullest extent possible. Catholic Action of Hawaii, Etc., v. Brown, 468 F.Supp. 190 (D.Hawaii 1979).

On appeal, the Ninth Circuit Court of Appeals determined that it was not sufficient to deal only with the environmental consequences of the original construction; the environmental consequences of the operation of the facility must be dealt with as well. The Court of Appeals reversed the District Court, ordering the Navy to prepare a "Hypothetical Environmental Impact Statement" covering the consequences of the possible alternative operation of the facility. Catholic Action of Hawaii, Etc., v. Brown, 643 F.2d 569 (9th Cir. 1980). Certiorari was granted by the United States Supreme Court on April 6, 1981, and its decision was rendered on December 1, 1981. Weinberger v. Catholic Action, 454 U.S. 138, 102 S.Ct. 197, 70 L.Ed.2d 298 (1982).

The Supreme Court concluded "that the `Hypothetical Environmental Impact Statement' is a creature of judicial cloth, and that it is not mandated by any of the statutory or regulatory provisions upon which the Court of Appeals relied," thereby reversing the Ninth Circuit's judgment and reinstating the judgment of the District Court dismissing the case.

The Supreme Court interpreted NEPA to require an EIS only when a project is proposed, "not merely contemplated." After determining that plaintiffs could not establish that the Navy proposed to store nuclear weapons, the Court ruled that whether or not the Navy had complied with NEPA was beyond judicial scrutiny, and that, as a necessary result, the claims seeking the injunction against weapons storage were not justiciable causes of action.

The Supreme Court used a four-step analysis to arrive at the conclusion that the existence of a proposal to store nuclear weapons could not be established. The Court first noted that Congress in NEPA, 42 U.S.C. § 4332(2)(C), provided that public disclosure of an EIS is expressly governed by the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(1). Second, the FOIA exempts from disclosure matters that are (1) authorized by executive order to be kept secret, and (2) are in fact properly classified. Third, the Court observed that Executive Order No. 12065 confers upon specified officials the power to classify information if its release would pose a threat to national security. Fourth and finally, the Court determined that virtually all information relating to the storage of nuclear weapons was properly classified by the specified officials pursuant to the Executive Order and was therefore exempt from disclosure under the FOIA. The Supreme Court concluded:

"Ultimately, whether or not the Navy has complied with NEPA `to the fullest extent possible' is beyond judicial scrutiny in this case."

In our case, defendant Navy argues that with respect to the storage and handling of nuclear weapons, Catholic Action is solidly on point and controlling. Further, they urge a similar analysis be used by the Court with respect to conventional weapons storage. The "public nuisance" claim of plaintiffs, the Navy additionally argues, is barred by the Supremacy Clause and the Doctrine of Sovereign Immunity.

NEPA Claims Relating to Nuclear Weapons

The Court absolutely is convinced that Catholic Action is squarely on point and controlling with respect to nuclear weapons. Nevertheless, both in their papers and at the May 17, 1982, hearing on defendants' motion, plaintiffs attempted to make distinctions between Catholic Action and the instant case.

Counsel for plaintiffs point out that in Catholic Action the Navy prepared an Environmental Impact Assessment (EIA). They maintain that this Court should order the Navy to likewise prepare an EIA in our case to aid the Navy in its internal decisionmaking process. The EIA in Catholic Action, however, was prepared pursuant to a proposal to construct a new weapons storage facility. After determining that the construction of the buildings would have no significant impact, the Navy concluded that no EIS was necessary.

The case here does differ from Catholic Action in one very significant aspect. There, new construction had been undertaken, while here, there has been absolutely no new construction as well as no major changes in operation of the Seal Beach facility, and there are no allegations that any are proposed. As the Supreme Court said in Catholic Action with respect to the EIS, it "need...