Environmental Health Coalition, a California Nonprofitorganization; Peace Resource Center, a Network of 50community Organizations; Southwest Network Forenvironmental and Economic Justice, a Coalition of 72community-based Grassroots Organizations; Military Toxicsproject, a National Network of over 130 Memberorganizations; Lee Olsen, a Recreational Scuba Diver,plaintiffs-appellants, v. John Dalton, Secretary of the United States Navy; Us Navy,an Agency of the United States; Michael R. Robinson, in Hiscapacity As District Engineer of the United States Armycorps of Engineers; Col. William Mulvery, in His Capacityas Chief Engineer of the United States Army Corp Ofengineers; Army Corps Engineers, an Agency of the Unitedstates, Defendants-appellees, 110 F.3d 68 (9th Cir. 1997)

Before: BROWNING and KLEINFELD, Circuit Judges, and MERHIGE,^*  Senior District Judge.

MEMORANDUM^** 

Plaintiffs appeal the district court's order denying plaintiffs' motion for a preliminary injunction. We affirm.

The district court correctly concluded that plaintiffs were unlikely to succeed on their claim. See American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 965 (9th Cir. 1983). Under CERCLA's Timing of Review provision, 42 U.S.C. § 9613(h) "No federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title...." If the Navy's construction of the Contaminated Disposal Facility was a "removal or remedial action," this court lacks jurisdiction to hear a challenge to the project. See Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1474 (9th Cir. 1995). The construction of the Contaminated Disposal Facility was found by the district court to fit squarely within the definition of "removal" in 42 U.S.C. § 9601(23)--the encapsulation of the existing hazardous sediments and dredged sediments in the course of the project will cleanup or remove hazardous substances from the environment. Thus, plaintiffs have not demonstrated a likelihood of success on their claim essential to this court's jurisdiction that the construction of the project is not a removal action.

We have previously rejected the substance of plaintiffs' argument that the withholding of jurisdiction by § 9613(h) should not be honored if to do so would subvert the goals of other environmental statutes. See McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328-29 (9th Cir. 1995).

Concluding as we do that plaintiffs are unlikely to prevail on this jurisdictional issue, it would be contrary to the goals of § 9606(a) to consider the merits of plaintiffs' arguments that (1) the Navy is using the Time Critical Removal Action to avoid its obligations under the Resource Conservation and Recovery Act; (2) the Navy's environmental impact statement is inadequate under the National Environmental Policy Act.

AFFIRMED.