Jump to Navigation
Jump to Content

Frost v. Perry

ELR Citation: 26 ELR 21252
Nos. CV-S-94-714-PMP (RLH), 919 F. Supp. 1459/(D. Nev., 03/06/1996)

The court holds that the U.S. government properly invoked the military and state secrets privilege, preventing a Resource Conservation and Recovery Act (RCRA) citizen suit regarding a classified site operated by the U.S. Air Force from proceeding. The court first notes that the military and state secrets privilege is absolute, notwithstanding any allegations of criminal conduct. The court holds that federal defendants were not required to admit or deny allegations as to whether hazardous waste had been stored, treated, or disposed of at the site, because such information was classified and encompassed within the privilege. The court next holds that the Secretary of the Air Force invoked the privilege over the site's RCRA compliance state. The Secretary had invoked the privilege over 10 categories of information, including security sensitive environmental data. Moreover, the Secretary's classified declaration described in further detail the scope of the privilege as invoked. The court also holds that the federal defendants could rely on a classified declaration to support their claim of military and state secrets privilege in the context of their motion for summary judgment, despite the claim that the secret declaration was not admissible as evidence. The need for the declaration to be classified only underscored the national security issues present in the action. Forcing defendants to divulge the contents of the declaration would only result in further harm to national security. The court next holds that plaintiffs could not provide the essential evidence to establish a prima facie case for any of their RCRA claims. The defendants' assertion of the military and state secrets privilege prevented the plaintiffs from providing detailed photographic evidence, sealed affidavits, and information in other exhibits.

The court next addressed the plaintiffs' motion to amend their complaint with additional claims. The court holds that plaintiffs failed to provide 60-day notice of the alleged violations as required under the citizen suit provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court also holds that the classification determination that the plaintiffs sought to challenge did not qualify as "agency action" for purposes of review under the Administrative Procedure Act. The classification determination was not a "rule," "order," "license," "sanction," or "relief." Finally, the court notes that CERCLA §120(j)(2) exempts classified information from release under any of the Act's provisions. The court grants defendants summary judgment.

Counsel for Plaintiffs
Jonathan Turley
The National Law Center
Environmental Crimes Project
George Washington University
2000 H St. NW, Washington DC 20052
(202) 994-7001

Counsel for Defendants
David Anderson
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000