Hawaii County Green Party v. Clinton

No. 98-232 ACK (114 F. Supp. 2d 1198) (D. Haw. July 10, 2000)

ELR Digest

The court denies environmental groups' motion to reopen a previous action and dismisses the groups' current action against the federal government in which the groups allege that the U.S. Navy violated the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Marine Mammal Protection Act (MMPA) by conducting surface towed array surveillance system low frequency active (SURTASS LFA) program testing off the coast of Hawaii. SURTASS LFA is a sonar program that the Navy proposed to use to detect enemy submarines, but some claim that SURTASS LFA harms marine mammals.

The court first holds that the groups' motion to set aside a previous action against the Navy's SURTASS LFA program fails. The previous action had been dismissed as moot because the challenged SURTASS LFA testing had been completed, the Navy did not plan to resume testing, and the permit allowing the testing had expired. Here, the groups did not identify new extraordinary circumstances or new facts requiring that the mootness judgment be set aside.

The court next holds that groups' ESA claims must be dismissed because they failed to meet the ESA's 60-day notice requirements. The court also holds that the groups' NEPA claims and one of its ESA claims are not ripe for adjudication because there has been no final agency action that would allow review. The groups failed to show that the Navy is irreversibly or irretrievably committed to deploy SURTASS LFA testing off the coast of Hawaii. Moreover, the groups failed to show irreparable injury necessary to create subject matter jurisdiction for NEPA claims. The court then holds that the groups lack standing as to all claims. None of the groups alleged injury-in-fact from the claimed procedural violations. The crux of the groups' procedural claims is that they have been harmed by the irreversible and irretrievable commitments of resources that have been made before the issuance of a final environmental impact statement for the SURTASS LFA program. However, the groups' allegations of harm are not concrete, particularized, or imminent. In fact, the Navy has yet to take a final action, and in such a case, the groups cannot have suffered an injury-in-fact.

The full text of this opinion is available from ELR (71 pp., ELR Order No. L-241).

Counsel for Plaintiff
Lanny Sinkin
Light Worker Center
58 Furneaux La., Hilo HI 96720
(808) 961-9100

Counsel for Defendants
Mark Brown
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[30 ELR 20750]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]