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Catholic Action of Haw./Peace Educ. Project v. Brown

ELR Citation: 9 ELR 20625
Nos. No. 78-0085, 468 F. Supp. 190/(D. Haw., 03/13/1979)

Plaintiffs sought to enjoin use of a United States Navy munitions and nuclear weapons facility at the Pearl Harbor Naval Base near Honolulu. Plaintiffs, residents of Honolulu who use the areas adjacent to the new facilities for recreational and residential purposes, asserted violations of the National Environmental Policy Act (NEPA) for failure to prepare an environmental impact statement (EIS), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). In reply, Defense Department and Navy officials contended that they are excused from preparing an EIS due to a conflict between NEPA and the Atomic Energy Act and that they have complied with the ESA and the NHPA. The Navy did not submit an EIS because it would involve discussion of classified information regarding nuclear weapons.

The court finds that the facility was properly authorized by Congress and that a classified environmental impact assessment was prepared, in which the services of a wildlife biologist were used to study the Hawaiian stilt and its habitat. The assessment concluded that the project would have no significant impact on the environment and would not be environmentally controversial. The court first rules that the suit is not barred by laches because it was not unduly delayed. Further, defendants have not violated the ESA because they properly determined that the project does not jeopardize the Hawaiian stilt or its habitat, nor have they violated the NHPA because they determined that the project will not affect the Okiokiolepe Fishpond. While noting that the project is a major federal action under NEPA and that a controversy exists regarding the environmental consequences, the court concludes that submission of an EIS is not required because it would conflict with data security provisions of the Atomic Energy Act (AEA), 42 U.S.C. §2014(y), and Defense Department security regulations. Thus, the court finds that defendants have complied with NEPA to the fullest extent possible given this statutory conflict. Defendants' decision not to prepare an EIS was reasonable and not arbitrary or capricious and thus did not violate the Administrative Procedure Act. The court denies plaintiffs' motion for a permanent injunction.

The full text of this opinion is available from ELR (4 pp. $0.50, ELR Order No. C-1180).

Counsel for Plaintiffs
Walter P. Zulkoski
404 Piikoi St., Honolulu HI 96814

Counsel for Defendants
Elliot Enoki, Ass't U.S. Attorney; Samuel Pinn, Jr., Jeffrey A. Wayne
Fed. Bldg., 300 Ala Moana Blvd., Honolulu HI 96850
(808) 546-7170

Turrentine, J.