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Ground Zero Center Nonviolent Action v. United States Department of Navy

United States District Court, Ninth Circuit

January 8, 2014

GROUND ZERO CENTER NONVIOLENT ACTION, WASHINGTON PHYSICIANS FOR SOCIAL RESPONSIBILITY, and GLEN S. MILNER, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants.

ORDER ON COMPETING MOTIONS FOR SUMMARY JUDGMENT [Dkt. #s 91 & 99]

RONALD B. LEIGHTON, District Judge.

I. INTRODUCTION

Before the Court are competing Motions for Summary Judgment [Dkt. #s 91 and 99]. The parties' arguments track their respective positions on the Motion for Preliminary Injunction [Dkt. #15]. Ground Zero Center for Nonviolent Action, et al. (Ground Zero) shifts its emphasis on summary judgment from traditional environmental concerns (flora, fauna and fish impacted by construction) to the possibility of catastrophic impact caused by accidental detonation while missiles are being loaded onto submarines. Ground Zero now asks the Court to halt construction of the new Explosives Handling Wharf and direct the Navy to supplement its Environmental Impact Statement to address these concerns, necessarily asking it to release information detrimental to national security in the process.

The Motions chronicle all of the issues Ground Zero presented in seeking a preliminary injunction. The Court heard oral argument and wrote an extensive opinion denying the Motion for Preliminary Injunction [Dkt. #72]. Since then, nothing has changed to compel the Court to deny Plaintiffs' motion and grant Defendants' motion; the Administrative Record, the facts and the controlling legal precedents all remain the same, and compel instead a consistent result.

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. The Trident II fleet ballistic missile is a "submarine-launched ballistic missile that can be armed with nuclear warheads." Unsurprisingly, Trident missiles and submarines require specialized facilities, including the Explosive Handling Wharfs (EHWs) at issue here. 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. The wharfs allow the Navy to conduct maintenance and upgrades to the submarines. Bangor currently has one EHW.

The current wharf operates continuously during the year, less 60 days allotted for maintenance (and other limiting factors). This period-one year minus 60 days-constitutes the wharf's "operational capacity." Until recently, EHW-1 met the Navy's needs.

In the 1990s, the Navy began using a new type of missile: the Trident II D5. The D5 is larger and more complex, and requires more time to handle and maintain than its predecessor. Thus, the Navy started the "D5 Life Extension Program" in order to upgrade the missiles- particularly their electronics-as they become "technologically obsolescent." As the missiles age, upgrades and maintenance naturally will become more frequent-necessitating increasing use of the explosives handling wharf.

Like the missiles, the existing wharf needs increasing maintenance, including replacement of its piles. It cannot, of course, be used during much of the construction period, and the wharf's operational capacity will thus decline. 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. During the repair period, the existing wharf will be available only 185 days per year. But, due to the D5 Life Extension Program, the Navy has determined a need for 400 operational days. Thus, even after the 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.

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. The environmental review commenced with a notice of intent to prepare an EIS published on May 15, 2009.

As part of the environmental review, the Navy conducted a biological assessment to analyze the effects of EHW-2 on several ESA-listed species. 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"). 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.

On March 18, 2011, the Navy circulated a draft-EIS for public comment. The draft disclosed that the Navy intended to install 1, 250 steel pilings and that its new wharf would cover 6.3 acres of water and extend 600 feet from the shoreline. Among other considerations, the draft-EIS explored the effects of underwater construction noise and the presence of the wharf on ESA-listed species. On October 3, 2011, the Navy released a supplement to the draft-EIS for public comment.

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. 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. The EIS disclosed that underwater construction noise may cause levels of sound injurious to fish. 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. Additional 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.

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.

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. The Navy also considered a "no-action alternative, " but as outlined above, the Navy argued 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. The EHW-2 would be located 600 feet offshore in water 60-100 feet deep. 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.

Construction of EHW-2 is scheduled to occur between September 2012 and January 2016. Offshore construction would include installation of piles using hammers and pile drivers. The Navy estimates that less than 1, 000 impact strikes a day are likely necessary to complete the project; a less likely-but possible-scenario would result in up to 6, 400 impacts per day. To minimize potential damage caused by the underwater noise of pile driving, the Navy would limit certain in-water work to between July 16th and February 15th.[1] Pile driving would also be limited to daytime: striking could not begin until two hours after sunrise and would end two hours before sunset to avoid harm to foraging species.

The Navy states that it has carefully planned the construction in order to have the second wharf operational by its deadline-October 2016. At that time, the Navy expects a significant operational shortfall. That shortfall will have "negative impacts to the operability, reliability, safety and security of the Trident II System, eventually reaching a point that they will pose a significant risk to national security."

The construction schedule is further complicated by environmental concerns, ongoing operations at Bangor, and space limitations. The available space at the project location physically limits the amount of construction equipment that can safely operate at the site at any one time. Further restrictions, such as the shortened work-window and a cap on daily pilestrikes, limit the number of piles which can be installed each day and increase the risk of ...


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