Washington County, Nc v. U.S. Dept. of Navy

• Decision Date: 18 February 2005
• Docket Number: No. CIV.A.2:04 CV 3BO(2).,No. CIV.A.2:04 CV 2BO(2).,CIV.A.2:04 CV 3BO(2).,CIV.A.2:04 CV 2BO(2).
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: WASHINGTON COUNTY, North Carolina and Beaufort County, North Carolina, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY; Gordon R. England, in his official capacity as Secretary of the Navy, and Wayne Arny, in his official capacity as Assistant Secretary of the Navy for Installations and Environment, Defendants. The National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife, Plaintiffs, v. United States Department Of The Navy; Gordon R. England, in his official capacity as Secretary of the Navy, and Wayne Arny, in his official capacity as Assistant Secretary of the Navy for Installations and Environment, Defendants.

357 F.Supp.2d 861

WASHINGTON COUNTY, North Carolina and Beaufort County, North Carolina, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY; Gordon R. England, in his official capacity as Secretary of the Navy, and Wayne Arny, in his official capacity as Assistant Secretary of the Navy for Installations and Environment, Defendants.

The National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife, Plaintiffs, v. United States Department Of The Navy; Gordon R. England, in his official capacity as Secretary of the Navy, and Wayne Arny, in his official capacity as Assistant Secretary of the Navy for Installations and Environment, Defendants.

No. CIV.A.2:04 CV 3BO(2).

No. CIV.A.2:04 CV 2BO(2).

United States District Court, E.D. North Carolina, Northern Division.

February 18, 2005.

COPYRIGHT MATERIAL OMITTED

Derb S. Carter, Jr., Michelle B. Nowlin, Southern Environmental Law Center, Chapel Hill, NC, for National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife.

Raymond E. Owens, Jr., Kiran H. Mehta, Christopher C. Lam, Kennedy, Covington, Lobdell & Hickman, Charlotte, NC, for Washington County and Beaufort County.

R. A. Renfer, Jr., Asst. U.S. Attorney, U.S. Attorney's Office, Raleigh, NC, Stephen G. Bartell, U. S. Dept. of Justice, Env. Div., Washington, DC, for defendants.

TERRENCE WILLIAM BOYLE, District Judge.

This matter is before the Court on the Parties' Cross-Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. The motions have been fully briefed, and on January 19, 2005, a hearing was held before the Court. The matters are ripe for ruling.

INTRODUCTION

This suit arises out of the Department of the Navy's ("Navy") plan to construct and operate a new Outlying Landing Field ("OLF") in Washington and Beaufort Counties, North Carolina ("Site C").¹ The case was initially brought by Plaintiffs as two separate actions, but the actions were subsequently consolidated by the Court. One suit was filed by the National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife ("Environmental Plaintiffs"). The other suit was filed by Washington County and Beaufort County, North Carolina ("County Plaintiffs").

Both the Environmental Plaintiffs and the County Plaintiffs allege that the Navy's decision to construct an OLF at Site C violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. § § 4321, et seq. The County Plaintiffs further allege that the Navy's decision to construct an OLF at Site C violates the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § § 1451, et seq., and the Coastal Area Management Act ("CAMA"), N.C. Gen.Stat. § § 113A-101, et seq.² Plaintiffs are seeking a permanent injunction barring Defendants from proceeding with the OLF at Site C until they comply with NEPA and the CZMA.

As stated in the Record of Decision ("ROD") issued by the Navy, the OLF at Site C will be used to support the operation and training of new F/A-18 E/F ("Super Hornet") aircraft and for future military operational needs, including surge training.³ ROD at 12. Current events teach that neither the government nor the law can be blind to the reality of military readiness and national security. The Court recognizes that this case invites a consideration of national security and raises an awareness of the military's special mission to protect the United States. Neither the defendants nor the law posit that the interest of military training invalidates federal law or the commitment to, and protection of, the environment established by the National Environmental Policy Act ("NEPA"). The primary issue in this case is whether, upon full consideration of the evidence, the record shows that the Navy has thoroughly considered the environmental consequences of its proposed action as required by NEPA. In the final analysis, a fair and balanced application of the law must be achieved regardless of the outcome.

BACKGROUND

Site C is located in rural eastern North Carolina, within a few miles of the Pungo Unit of the nationally designated Pocosin Lakes National Wildlife Refuge ("Pocosin Lakes"). The Pungo Unit was established in 1963 to provide an undisturbed sanctuary for migratory waterfowl and is home to some of the most unspoiled habitat along the East Coast. The Pungo Unit is characterized by vast wetlands and areas of open water and serves a unique environmental role as host to one of the largest populations of migratory waterfowl along the Atlantic Flyway.⁴ Between November and March each year, nearly 100,000 waterfowl, including nearly 22,000 tundra swans and 44,000 snow geese, migrate to the Pungo Unit. Final Environmental Impact Statement ("FEIS") at 11-36. During the migratory period, the waterfowl rest, forage, and feed in the safe harbor of the refuge and the rich feeding ground offered by the surrounding agricultural fields.

In this environment, highly populated by nature and thinly populated by man, the Navy has chosen to construct an OLF to support operation and training of new Super Hornet aircraft.⁵ Site C will have a 2,000 acre core area that will contain a runway and support structures, and 30,000 acres of land surrounding the core construction. The OLF at site C will be used primarily by the Super Hornet squadrons for Field Carrier Landing Practice ("FCLP"), pilot training consisting of "touch-and-go" operations. "Touch-and-go" operations are repetitive takeoffs and landings in which the pilot touches down on the runway and then immediately applies full power to lift-off. Once in the air, the pilots climb to approximately 600 feet and position the aircraft for subsequent "touch-and-go" operations. FEIS 12-3. Each aircraft conducting an FCLP flight will make eight to ten "touch-and-go" landings per training session.

The Navy projects that there will be approximately 31,650 FCLP operations annually at Site C.⁶ FEIS at 12-5. By its calculations, this amounts to approximately 59 "touch-and-go" operations per day broken into two training periods of 45 minutes each.⁷ The Navy states that "the tempo of operations at the OLF will not be regular. Rather, the training operations will be sporadic, consisting of concentrated times of high-tempo operations followed by longer periods of few or no operations." FEIS at 12-6. The OLF is intended to have twenty-four hour capability and about 8,450 of the annual operations will occur between 10 p.m. and 7 a.m. FEIS at 12-23. If the Navy is required to surge more than one aircraft carrier at a time, there will be a concentrated period of operations until the squadrons are deployed, but the Navy states that it is impossible to predict the exact intensity, duration, and timing of surge operations. ES-4.

Based on the Navy's projected flight routes, the Super Hornets will fly to and from the OLF from Oceana and Cherry Point at altitudes between 15,000 and 25,000 feet. FEIS 12-5. The 2,000 acre core area of the OLF is located approximately 5 miles west of Pocosin Lakes, and flights over Pocosin Lakes would occur at 3,000 feet or higher. FEIS at 12-121. However, portions of the eastern approach track and holding pattern are located within .2 mile of the Pungo Unit and flight altitudes in that area would be between 2,000 and 2,500 feet. FEIS at 12-121.

ANALYSIS

Both parties have moved for summary judgment.⁸ A court may grant summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. The non-moving party must then come forward and show that a triable issue of fact exists. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conclusory allegations are not sufficient to defeat a motion for summary judgment. Id. at 249, 106 S.Ct. 2505.

In their Motion, Plaintiffs assert that the Navy has violated NEPA by: 1) failing to fairly and objectively consider available alternatives and instead, "reverse engineered" a predetermined objective; 2) minimizing the impact of the development of an OLF at Site C on the environment, particularly migratory birds and Pocosin Lakes; 3) failing to take a "hard look" at the cumulative environmental impacts associated with constructing an OLF at Site C; 4) failing to adequately discuss mitigation measures in the EIS; 5) failing to use appropriate methodology to determine the presence of wetlands; and, 6) failing to prepare a Supplemental EIS.

Defendants contend that the FEIS complies with NEPA. They assert that they took the required "hard look" at the environmental consequences of an OLF at Site C, appropriately considered reasonable alternatives to an OLF at Site C, and appropriately considered the cumulative impacts associated with the project.

I. NEPA

NEPA's goal is to "protect and promote environmental quality." Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996). NEPA does not place substantive requirements on an agency, but "requires them to follow certain procedures prior to undertaking any `proposed action.'" Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir.2002) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). NEPA requires that for any action that will have a significant impact on the environment, a federal agency must prepare a detailed statement on the "environmental impact of the proposed action." 42 U.S.C. § 4332(C). The statement must include consideration of:

(i) the environmental impact of the proposed action, (ii) any adverse environmental effect which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed...