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Committee for Charter Protection for Parks v. Weinberger

Citation: 11 ELR 21056
No. No. 80-0009-E, 16 ERC 1433/(S.D. Cal., 09/02/1981) Denying renewed motion for preliminary injunction

The court denies a motion for a preliminary injunction against the Navy's selecton of a parkland site for construction of a hospital. Under the Ninth Circuit Court of Appeal's tripartite test for deciding preliminary injunction requests in cases challenging compliance with the National Environmental Policy Act (NEPA) the court finds first that a strong likelihood of success on the merits was now shown. The court rejects a claim that a supplemental environmental impact statement (SEIS), prepared after discovery of an earthquake fault at the site, was not motivated by a desire to justify a previously made decision and thus defective. The SEIS shows that there has been a good faith attempt to identify and discuss all foreseeable environmental consequences. The court also holds that the Navy's report to Congress expressing a tentative selection of the site prior to completion of the SEIS was not a premature "final decision" prejudging the outcome of the NEPA process. An agency may establish a preference prior to completion of the final EIS, and may properly make a tentative decision. In addition, even if the Navy's findings under Executive Order No. 12072, which requires consideration of urban areas in the planning and location of federal facilities, were subject to a private right of action, they would not be overturned since the appropriate considerations were fairly addressed. After considering the balance of irreparable harms and the public interest, the court holds that a permanent loss of the parkland has not been shown to outweigh a delay in availability of the hospital's service to a population of 400,000 people and a delay-caused escalation of $20,000 a day in the hospital's construction cost.

[The denial of an earlier motion for a preliminary injunction against the project is reported at 10 ELR 20246 — Ed.]

Counsel for Plaintiffs
Judith M. Copeland
Garfield, Schwartz & Copeland
360 Bank of Cal. Plaza, 110 W. A St., San Diego CA 92101
(714) 239-0815

Counsel for Defendants
Ronald G. Gluck, Gary W. Wilburn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-1307