Life of the Land v. Secretary of Defense

No. 73-3921 (D. Haw. February 12, 1974)

The court denies plaintiffs' motion for summary judgment and dismisses a suit to enjoin the Secretary of Defense from releasing or acquiring land in Hawaii pursuant to a Department of Defense (DOD) Facilities Plan regarding long range requirements until a NEPA impact statement covering the entire Plan has been filed. Acknowledging that the Act itself does not require an EIS for such a general plan of a preliminary nature, plaintiffs nonetheless contend that DOD regulations mandate preparation of an impact statement in this case. Noting that the Secretary has maintained that an EIS will be prepared each time a parcel is released or acquired under the Plan, the court rules that EIS preparation for the entire Plan isdiscretionary under the regulations unless the Secretary determines that the Plan will significantly affect the environment. Plaintiffs have failed to allege that such a determination has been made, and accordingly the case must be dismissed for failure to state facts which would justify relief.

Counsel for Plaintiffs
Thomas M. Pin, Jr.
333 Queens Street
Suite 805
Honolulu, Hawaii 96813

Counsel for Defendant
Warren H. Higa Asst. U.S. Attorney
Federal Building
335 Merchant Street
Honolulu, Hadwaii 96813

[4 ELR 20295]

Wollenberg, J.

ORDER DISMISSING COMPLAINT AND DENYING SUMMARY JUDGMENT

This is an environmental suit in which plaintiff, including three environmentally oriented non-profit Hawaii corporations and six individuals, seek an order from this Court enjoining the Secretary of Defense from acquiring or releasing land pursuant to the Plan for Department of Defense Facilities for the State of Hawaii (hereinafter "the Plan") until the Secretary complies with the requirements of the National Environmental Protection Act of 1969 (hereinafter "NEPA"), 42 U.S.C. 4321, et seq. This case is presently before the Court on plaintiffs' motion for summary judgment and defendant's motion to dismiss the complaint for failure to state a cause of action for which relief may be granted.

The Plan here in question, Exhibit A attached to plaintiffs' motion filed January 18, 1974, was first issued in July 1972 and revised in December 1972. It is an effort by the Department of Defense (hereinafter "DOD") to anticipate its land utilization needs in [4 ELR 20296] Hawaii for the next 15 years. The Plan states its purpose as follows:

to determine landholdings required to support the longrange Department of Defense (DOD) presence in the State of Hawaii, and to determine which landholdings could be released by the Department of Defense . . . [The Plan at iv]

In their briefs and during oral arguments on their respective motions, the parties addressed themselves to the sole question whether pursuant to NEPA the DOD must file an Environmental Impact Statement (EIS) on the Plan as a whole before it may proceed with implementing any portion of the Plan. The Complaint, however, does not pray for so broad an order, but asks only that the Secretary of Defense not be permitted to implement

those portions of the Plan . . . which provide for acquisition or release of land unless and until Defendant . . . has satisfactorily and adequately complied with the requirements of [NEPA].

Complaint at page 12. As the complaint reads literally, it asks only that the Secretary of Defense be ordered to comply with the requirements of NEPA. Of course, the Secretary is already under a duty to obey the laws of the United States, and by regulation the Secretary has directed components within the DOD to "comply with applicable environmental laws and policies." 32 C.F.R. Section 214.5(b)(3). The order plaintiffs seek is therefore premature unless a showing is made that a violation of one of those laws is imminent. No such showing has been made.

The government has represented to this Court that each time a parcel of land is acquired or released pursuant to the Plan, an EIS is prepared for that parcel.¹ Plaintiffs conceded during the hearing on these motions that NEPA does not require the preparation of EIS's for general plans of a preliminary nature such as the Plan here in question. See, e.g., Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1278 (9th Cir. 1973). Plaidntiffs dargue, however, that the DOD has by regulation required preparation of EIS's in just such situations. 32 C.F.R. Section 214.5 (1973).²

This Court has studied carefully the positions taken by counsel in their written and oral presentations as well as the language of the applicable DOD regulation. The terms of that regulation require that plaintiffs' motion for summary judgment be denied.

Plaintiffs are correct in describing the Plan as properly within the scope of the regulation. Defendant is correct that the excerpted portion of the regulation reproduced in footnote 2, supra, is written in permissive language indicating that the component, or agency, responsible for each plan may exercise its discretion whether an EIS is necessary. The regulation itself limits the extent of that discretion and specifies precise circumstances under which the responsible component is obligated to prepare an EIS:

Each proposed project or activity shall be assessed for environmental consequences . . . and:

a) If it is determined that the action will not significantly affect the environment, any written assessment of the environmental aspects of an anticipated action shall be retained by the Component making the assessdment until the action is completed . . . .

b) If it is determined that the action will have a significant effect on the environment, a statement is required, unless it is excepted by subdivisions [not relevant here].

32 C.F.R. Section 214.5(d)(3)(ii).

Plaintiffs have not alleged that the Secretary of Defense has determined the Plan "will have a significant effect on the environment". Until such a determination is made, the regulation imposes upon the Secretary no obligation to prepare an EIS. Accordingly, plaintiffs' motion for summary judgment must be denied. Since plaintiffs have not alleged facts which would justify relief, defendant's motion to dismiss pursuant to F.R.Civ.P. Rule 12(b)(6) will be granted. Defendant will submit a judgment to the Court within five days.

It is so ordered.

1. The government has further explained that the DOD does not prepare an EIS for parcels of land released to other agencies. Since the DOD does not know the purpose for which the other agencies intend to use the land, the DOD is unable to determine what the environmental impact of such use will be. The government has represented to the Court, however, that the agencies to which land is released prepare an EIS before implementing plans to utilize the land. These observations are intended only to provide a better understanding of the facts of this case. As will be seen, they are not necessary to support the result reached.

2. Title 32 C.F.R. Section 214.5 provides in relevant part:

The components are encouraged to develop plans, programs, and procedures for routine projects and continuing activities having an impact on the environment. Environmental statements should be prepared for these plans, programs, and procedures rather than for particular or individual actions taken pursuant to these plans, programs, or procedures. Only when a particular proposed action involves a potential impact on the environment not considered in the environmental statement for the applicable plan, program, or procedure, will it be considered necessary to prepare an impact statement on that individual or particular proposed action. 32 C.F.R. Section 214.5(d)(3)(i)