Ground Zero Center for Nonviolent Action v. US Department of the Navy, No. 14-35086 (9th Cir. 2017)
Annotate this CaseGround Zero filed suit challenging the Navy's expansion of a TRIDENT nuclear submarine operating center pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. The Ninth Circuit 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 a second Explosives Handling Wharf (EHW-2), and by withholding the now-disclosed portions of the appendices to the environmental impact statement (EIS). However, such errors were harmless. In all other respects, the Navy satisfied NEPA's requirements. Therefore, the panel affirmed summary judgment for the Navy. The panel narrowly construed the district court's order restricting Ground Zero's use of portions of the record. Even with this reading, it was not clear that the district court's order comports with the First Amendment. Therefore, the court remanded for further proceedings.
Court Description: 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. GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 3 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 4 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY the restriction] and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.”
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