Public Lands Legal Foundation v. United States

No. LV81-187, RDF (D. Nev. April 20, 1981)

The district court denies plaintiff's motion for a preliminary injunction barring the Air Force from conducting nonnuclear test explosions in Nye County, Nevada relating to the MX missile system until it complies with the National Environmental Policy Act. Defendants, after completing an environmental assessment, concluded that the test explosions did not require preparation of an environmental impact statement.The court rules that plaintiff failed to establish a strong likelihood of success on the merits or that it would suffer irreparable harm if preliminary relief were denied. In contrast, defendants would suffer irreparable harm if the tests were postponed.

Counsel for Plaintiff
Robert R. Hager
737 Humboldt St., Reno NV 89509
(702) 329-8242

Daniel P. Sheehan
1324 N. Capitol St., Washington DC 20002
(202) 797-8106

Counsel for Defendants
Steven A. Herman, Ezra D. Rosenberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5391

Byron D. Baur
Office of the General Counsel
Secretary of the Air Force, Washington DC 20330
(202) 697-1806

[11 ELR 21046]

Foley, J.:

Plaintiff's motion for a preliminary injunction, having come on for hearing on the 16th day of April, 1981, Robert R. Hager, Esquire, appearing for plaintiff and Steven A. Herman, U.S. Department of Justice, appearing for and on behalf of the defendants, the Court having reviewed all matters of record herein, and having considered the arguments of counsel representing the parties herein, and good cause appearing therefore, enters the following Findings of Fact, Conclusions of Law, and Order:

Findings of Fact

That this action is one in which two closely related causes, Civil No. 81-0867 and Civil No. LV 81-187, RDF, have been brought before the Court, the former having been filed in the U.S. District Court for the District of Columbia and subsequently transferred hereby by Judge Oliver B. Gasch on a motion for change of venue to this Court.

[11 ELR 21047]

II.

That the Court ordered that the hearing conducted on April 16, 1981, was to determine whether a preliminary injunction should issue in this cause.

III.

That the Air Force proposes to conduct a test (DISC HEST) in Ralston Valley, Nye County, Nevada, on April 17, 1981, to provide and confirm ground motion data regarding soil compaction, which data would be used in the engineering design of the proposed M-X missile system shelters and other facilities, wherever they may be built. The data will also be available for any other underground strategic system the Government may need to develop in the future.

IV.

That the relief sought by the plaintiff in this consolidated action is to enjoin the Air Force from conducting the DISC HEST test as described above, pending a trial of this action, on grounds that the conduct of the test would violate the National Environmental Policy Act.

That the Air Force prepared an Environmental Assessment in accordance with the National Environmental Policy Act and regulations of the President's Council n Environmental Quality dated November 29, 1978. This Environmental Assessment was prepared by a trained professional scientist, aided by many other professionals and authorities.

VI.

That based upon the record before the Court, including the Air Force's thorough Environmental Assessment and statements of expert and other witnesses, no significant impacts on the quality of the human environment will occur as the result of this test.

VII.

That the plaintiff presented no evidence of particular harm to itself or its members which is likely to occur as a result of the test. All expert scientific opinions before the Court favor the defendants. It is unlikely that affidavits as described in Court by the plaintiff's attorney, and offered to be submitted by him to the Court, will be able to reverse the clear weight of the scientific evidence nowin favor of defendants.

VIII.

That the United States will suffer irreparable harm if the proposed test is postponed. The instrumentation and explosives are now in place and cannot be removed without damage to the equipment or risk to the safety of site personnel. The rapid deterioration of gauges and equipment now in place jeopardizes the usefulness of the information to be obtained if the test is postponed, and may result in the loss of the investment in time and funds already expended. The loss of test data would impair the ability of the Air Force to meet the Congressionally-mandated requirement for M-X Full Scale Engineering Development and could cause significant harm to the nation's strategic defense.

Conclusions of Law

That plaintiffs have failed to establish that they will suffer any irreparable harm if the preliminary injunction is not issued.

II.

That defendants will suffer irreparable harm if the preliminary injunction is granted.

III.

That plaintiffs have failed to establish a strong likelihood of success on the merits.

IV.

That plaintiffs have failed to meet any of the required criteria for a preliminary injunction under either of the two tests established by the Ninth Circuit Court of Appeals.

NOW, THEREFORE, as a result of the Findings of Fact and Conclusions of Law entered hereinabove, together with those matters of record herein, and good cause appearing therefore,

IT IS HEREBY ORDERED that plaintiff's motion for a preliminary injunction is denied.