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

United States Court of Appeals, Ninth Circuit

June 27, 2017

Ground Zero Center for Nonviolent Action, a Washington nonprofit corporation; Washington Physicians for Social Responsibility, a Washington nonprofit corporation; Glen Milner, an individual, Plaintiffs-Appellants,
v.
United States Department of the Navy; Raymond E Mabus, Jr., in his official capacity as Secretary of the Navy; Roger M Natsuhara, in his official capacity as Principal Deputy Assistant Secretary of the Navy; Terry J. Benedict, Rear Admiral, in his official capacity as Director of Navy Strategic Systems Programs; Pete Dawson, Captain, in his official capacity as Commanding Officer of Naval Base Kitsap; Christine Stevenson, in her official capacity as Project Manager at Naval Facilities Engineering Command Northwest, Defendants-Appellees.

          Argued and Submitted May 6, 2016 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. 3:12-cv-05537-RBL

          Katherine George (argued), Harrison-Benis LLP, Seattle, Washington; James E. Lobsenz (argued), Carney Badley Spellman P.S., Seattle, Washington; for Plaintiffs-Appellants.

          John David Gunter, II (argued) and Luther L. Hajek, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for Defendants-Appellees.

          David S. Mann, Gendler & Mann LLP, Seattle, Washington, for Amici Curiae Allied Daily Newspapers of Washington and Society of Environmental Journalists.

          Before: Susan P. Graber, Marsha S. Berzon, and Mary H. Murguia, Circuit Judges.

         SUMMARY[*]

         Environmental Law

         The panel affirmed the district court's summary judgment in favor of the United States Department of the Navy in an action brought by Ground Zero Center for Nonviolent Action, alleging that the Navy had not fully complied with the National Environmental Policy Act's disclosure requirements for the expansion of a TRIDENT nuclear submarine operating center; vacated the district court's order concerning Ground Zero's use of the inadvertently filed portions of the record; and remanded.

          TRIDENT submarines, armed with nuclear missiles, are brought to the Naval Base Kitsap in Bangor, Washington for maintenance. The base has an Explosives Handling Wharf for such maintenance, and the Navy began considering the possibility of building a second Explosives Handling Wharf ("EHW-2"). To comply with NEPA, the Navy prepared and published an Environmental Impact Statement ("EIS") for EHW-2. The EIS mentioned that a particular alternative site had been considered but rejected because it would not comply with requirements established by the Department of Defense Explosives Safety Board and the Naval Ordnance Safety and Security Activity. Ground Zero challenged the EIS, and during the litigation, the Navy revealed significant information not fully disclosed in the EIS.

         The panel held that the Navy violated NEPA's public disclosure requirement by not revealing that the Safety Board withheld approval of its plan for the construction of EHW-2. The panel also held that the Navy further violated NEPA by withholding the non-disclosed portions of the appendices to the EIS. The panel further held that both disclosure errors were, however, harmless.

         The panel narrowly construed the district court's order restricting Ground Zero's use of portions of the record. The panel concluded that it was not clear that the district court order comported with the First Amendment, and remanded for further proceedings to determine whether restrictions on Ground Zero's speech were warranted. The panel outlined the new standard to be applied on remand: to impose continuing restrictions on Ground Zero's public dissemination of documents that the Navy inadvertently made public, a court must identify "compelling reason [to impose the restriction] and articulate the factual basis for its ruling, without relying on hypothesis or conjecture."

          OPINION

          BERZON, Circuit Judge:

         We consider, principally, the adequacy of the United States Department of the Navy's ("Navy's") Environmental Impact Statement ("EIS") for the expansion of a TRIDENT nuclear submarine operating center. We also address whether a district court order restricting the dissemination of documents that the Navy erroneously made available through the court's public docket violated due process or the First Amendment.

         I

          Background

         A. The Navy's Proposed Wharf

         Bangor, Washington, is home to Naval Base Kitsap ("Kitsap"), the Navy's main operating hub for the Pacific fleet of its TRIDENT submarine program. TRIDENT submarines, armed with nuclear missiles, are brought to Naval Base Kitsap for, among other things, maintenance of those missiles. The base has an Explosives Handling Wharf ("EHW" or "EHW-1") where such maintenance is performed.

         During the 1990s, the Navy began upgrading the missiles used on the TRIDENT submarines. These upgraded missiles require increased maintenance and will require even more frequent maintenance as they age. The Navy estimates that its increased maintenance projects at Kitsap will need 400 "operational days" per year, meaning capacity to perform 400 days' worth of maintenance sessions in a year. The existing EHW at Kitsap cannot support those needs. In general, the present EHW can provide 300 operational days per year; in some years, due to the need for upkeep on the wharf, it is usable for fewer than 250 operating days.

         The Navy decided that it therefore needed to increase its operational capacity for missile maintenance at Kitsap. It began considering the possibility of building a second Explosives Handling Wharf ("EHW-2"). To comply with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq., the Navy prepared and published an EIS, which described the proposal and its projected environmental impacts.

          The EIS primarily discussed environmental impacts arising during the construction of EHW-2, as well as the effect the completed structure and its regular operations would have on the environment. Several alternatives were considered in depth, all of which (with the exception of "no action") involved constructing a second wharf adjacent to the first. The alternatives varied in their structural details-for example, in the size of the support piles on which they would rest-but not in location. According to the Navy, there were no other viable sites for the proposed wharf because of the function the wharf serves. It must be built in water deep enough to allow submarines to operate, but not so deep as to make construction of the wharf infeasible.

         In addition to considerations of ocean depth, the EIS made numerous references to constraints on site selection imposed by the need to handle explosive materials safely. It mentioned that a particular alternative site had been considered but rejected because it would not comply with requirements established by the Department of Defense Explosives Safety Board ("Safety Board") and the Naval Ordnance Safety and Security Activity ("NOSSA"), which issue and implement safety guidelines surrounding the proper handling of explosives. The EIS also referred to a potential plan for a shore-based terminal, rejected for the same reason.

         In addition, the EIS explained, to comply with Safety Board and NOSSA "requirements to protect buildings located in the vicinity of explosives handling operations, " the construction of EHW-2 would involve the demolition or modification of more than a dozen facilities or structures near the proposed site. Noting that "[a]ll facilities constructed at the Bangor waterfront must comply with [Safety Board] and NOSSA requirements regarding explosives safety restrictions, " the EIS characterized the proposed location for EHW-2 as "the only available location along the Bangor waterfront that ensures designated restricted areas remain within Navy property boundaries and required separation distances between facilities are maintained."

         In a section labeled "Public Health and Safety, " the Navy reported that the existing EHW has "operated safely for over 30 years, " and that "[o]perations at the EHW-2 would be no different from operations at the existing EHW." The section concluded that "there would be no resulting impact to public health or safety" from the proposed development of EHW-2, as there would be "[n]o increased danger or change from current safe operations."

         At several points, the EIS referenced appendices. Three of these appendices were redacted in their entirety in the publicly released version of the EIS. According to the EIS's references and the appendices' titles, Appendix A contained supplemental information describing the purpose and need for the project, Appendix B contained additional information regarding alternatives to EHW-2 that the Navy had considered, and Appendix C contained information regarding the distance "within which activities and facilities are restricted to assure protection to life and property in the event of an accident, " which is referred to as an "[e]xplosives [s]afety [a]rc." The EIS stated that these appendices had been redacted because they contained Unclassified Controlled Nuclear Information ("UCNI") the Navy deemed unfit for public dissemination.[1]

          After going through a public comment period and issuing a final EIS, the Navy issued a Record of Decision announcing that it had decided to implement one of the proposed EHW-2 construction plans. The EHW-2 plan selected would be adjacent to EHW-1 and would provide 300 operational days for missile maintenance every year. Combined with the operational days available at EHW-1, the 300 additional operational days permitted by EHW-2 would be more than sufficient for the TRIDENT program's needs.

         B. Ensuing Litigation

         Several months after the final EIS was released, Ground Zero Center for Nonviolent Action, Washington Physicians for Social Responsibility, and peace activist Glen Milner (collectively, "Ground Zero") filed a complaint against the Navy and several officials in the Western District of Washington. Ground Zero alleged that the Navy had not fully complied with NEPA's disclosure requirements and sought an injunction to stop construction of EHW-2.

         1. NEPA Claims

         During this litigation, the Navy revealed significant information not fully disclosed in the EIS.[2] In particular, one group of documents indicated that the Safety Board had rejected the EHW-2 proposal. According to these documents, the Safety Board had issued only conditional site approval. The conditional approval "did not accept safety risks associated with" the proposed separation distance between EHW-1 and EHW-2, or the proposed separation between the two EHWs and a complex on another pier. Worried that an "explosive mishap involving one missile" could propagate additional explosions involving other missiles or submarines being handled at the same time, the Safety Board was willing to accept the site approval request only if the Navy conducted a study to "prove that the likelihood of all risk is less than 1x10-6." The Navy had pointed to previous safety studies conducted before approving the locations of two EHWs at a similar base in Kings Bay, Georgia, but the Safety Board was not satisfied with the Navy's reliance on those studies.

         These new documents also indicated that, rather than conduct the studies the Safety Board required as a condition of its approval of EHW-2, the Navy had opted to obtain site approval via secretarial certification, a process by which the Secretary of the Navy can approve construction despite any Safety Board concerns. Two days before the publication of the final EIS, an internal Navy memorandum stated that the Secretary had "accept[ed] the risk for mission related operations and construction of" EHW-2, thus permitting the construction to proceed.

         The Navy also included in the administrative record more complete-that is, less redacted-versions of EIS Appendices A, B, and C than had been available to the public. As noted, these appendices had not been disclosed during the EIS process on the ground that they contained UCNI. The reason why much of the previously redacted information was now made public, the Navy explained, was that the Navy had "conducted additional review during the preparation of the Core Administrative Record and . . . determined that portions of these documents should not be designated as UCNI and can be released consistent with current Navy and Department of Defense Guidance." As a result of that review, Appendix A was released in its entirety; Appendix B was released in a partially redacted form; but Appendix C remained entirely redacted except for a textual description of its contents. The now-unredacted text indicated that Appendix C consisted of an image of the explosives safety arcs for EHW-1 and EHW-2 and a brief description of the conditions depicted in the image.

         Ground Zero argued that these newly released documents demonstrated that the Navy had violated NEPA by not adequately disclosing the risks of EHW-2; by not disclosing the Safety Board's lack of approval for the site; by not disclosing the appendices more completely during the EIS process; and by not engaging in a reasonably thorough analysis. The district court disagreed, denying Ground Zero an injunction, and rejecting Ground Zero's motion for summary judgment. Instead, the court granted the Navy's summary judgment motion. Ground Zero appealed to this court.

         2. The District Court Order Regarding Navy Documents

         In addition to appealing the district court's rejection of its NEPA claims, Ground Zero appeals an order of the district court ("Order") restricting Ground Zero's use of documents that the Navy made available for a time through the public docket. Ground ...


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