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Friends of the Earth v. Department of the Navy

ELR Citation: 18 ELR 20630
Nos. No. 87-4304, 841 F.2d 927/27 ERC 1965/(9th Cir., 03/07/1988) Injunction imposed

The court holds that environmental groups are entitled to an injunction enjoining construction of a proposed Navy homeport for the U.S.S. Nimitz in Everett, Washington, because the state has not yet concluded review proceedings for the Navy's dredging permit under the state Shoreline Management Act (SMA). The court first holds that plaintiffs have standing under Article III of the Constitution to challenge the Navy's alleged violations of the National Defense Authorization Act (NDAA) of 1987. Section 2207 of the NDAA prohibits the expenditure of funds for any construction in connection with the Everett homeport until all permits required for dredging activities have been issued. Congress' purpose in enacting this prohibition was to ensure that the environmental consequences of dredging are fully considered before construction funds are obligated, and the Navy's issuance of a construction contract prior to completion of the permit review process is sufficient injury-in-fact to support standing. Moreover, plaintiffs have alleged that their members live near and use the shoreline and waters around the proposed homeport, and that their interests would be adversely affected by construction without adequate environmental protection. Plaintiffs' injuries are fairly traceable to the Navy's commencement of construction, and would be redressed by an injunction preventing the Navy from continuing this activity. The court holds that plaintiffs also have standing under the Administrative Procedure Act, since their alleged injuries fall within the zone of interests protected by NDAA §2207.

Turning to the merits, the court holds that the district court lacked equitable discretion to deny injunctive relief. The language of §2207 explicitly prohibits the obligation or expenditure of funds until all required permits have been issued. Congress thus clearly has removed from the courts their traditional equitable discretion in injunction proceedings. The factors preserving the court's equitable discretion that were present in Weinberger v. Romero-Barcelo, 12 ELR 20538, are not present in this case, since the only method the NDAA provides for achieving its purpose is the withholding of funds, there is no alternative remedy that would protect environmental concerns, and compliance with the NDAA cannot be obtained by an order to the Navy short of ordering it to cease construction until the permit review process has been completed. The court rules that the SMA regulates and controls dredging and water quality along Washington's shoreline area, and thus is a state program "to control the discharge of dredged or fill material" for which Congress has waived the federal government's sovereign immunity in §404(t) of the Federal Water Pollution Control Act (FWPCA). The court rules that the SMA's program is a state requirement "respecting the control and abatement of water pollution," with which federal agencies are required to comply pursuant to FWPCA §313. The court holds that the state SMA permit is "required" within the meaning of §2207 of the NDAA, since the permit is part of that state program.

The court holds that the Navy does not have sovereign immunity under the Coastal Zone Management Act (CZMA), since the CZMA specifically provides that it does not affect any requirements imposed under the FWPCA. The court holds that the dredging and water quality regulations of the SMA, which forms the core of Washington's coastal zone program, are applicable to the Navy's activities on federal lands in the coastal zone. Finally, the court holds that the permit has not been "issued" within the meaning of the NDAA. Although the state environmental agency has approved the permit, the permit expressly states that construction is not authorized until all review proceedings have terminated, and review proceedings initiated by plaintiffs are currently in progress before an administrative hearings board.

Counsel for Plaintiffs-Appellants
Victor M. Sher
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Suite 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants-Appellees
J. Carol Williams
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Before Skopil and Reinhardt, JJ