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8 ELR 20386 | Environmental Law Reporter | copyright © 1978 | All rights reserved City and County of San Francisco v. United StatesNo. C-77-546-SW (443 F. Supp. 1116, 11 ERC 1065) (N.D. Cal. November 25, 1977)In a suit for damages and injunctive relief in which plaintiff alleged the illegality of the leasing of surplus federal port facilities to a private party, the court dismisses all of the claims advanced by plaintiff except for one seeking production of certain documents under the Freedom of Information Act (FOIA). The Hunter's Point Naval Shipyard, which is located within the City and County of San Francisco, was closed by the Secretary of Defense in 1973 and subsequently offered for lease. After losing on its bid to lease the facility and after a dispute over a sub-lease subsequently entered into with the first-party lessee, plaintiff instituted this lawsuit alleging eight causes of action. Claims one, two, and seven essentially assert that under the applicable federal statutes directing the Secretary of Defense to consider the public interest when awarding such leases, the Secretary's failure to award the lease to the plaintiff, which planned to develop the facility into a public port, constituted an abuse of discretion under the Administrative Procedure Act (APA). The court declines to consider these contentions, ruling that under the standards established in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971), the Secretary's decision is committed to discretion under the applicable statutes and is therefore unreviewable. The court also dismisses the claimed violations of the federal conflict of interest statutes, 18 U.S.C. §§ 201 and 208, because of a lack of standing and denies as well the claims for damages, finding that the leasing statute allegedly violated does not give rise to a private right of action. The court refuses to dismiss plaintiff's FOIA claims because of remaining unresolved factual issues. The full text of the Digested portion of this opinion is available from ELR (9 pp. $1.25, ELR Order No. C-1154). The court rejects allegations that the leasing arrangement violates the National Environmental Policy Act and the Coastal Zone Management Act in the excerpt that follows: In its sixth cause of action, plaintiff alleges a violation of the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(c), which requires that an environmental impact statement be prepared with regard to all "major federal actions significantly affecting the quality of the human environment." More specifically, plaintiff contends that the "lease of the Shipyard to defendant Triple A . . . constituted major federal action . . ." and the defendants "were obligated to prepare an Environmental Impact Statement with respect to the Shipyard prior to the award of the lease." Defendants' challenge plaintiff's standing to raise the alleged NEPA violation; assert that even if standing exists, plaintiff has failed to state a claim entitling it to relief; and also seek summary judgment on the basis that the Navy has in fact complied with NEPA.10 Plaintiff's standing to bring this NEPA claim hinges on its ability to show that the action has caused it "injury in fact" to an interest arguably within the "zone of interests" to be protected or regulated by NEPA. Cady v. Morton, 527 F.2d 786, 791 (9th Cir. 1975). The claimed injury is the alleged misuse of natural resources within its jurisdiction arising out of the lease award to Triple A rather than to itself. The "interest arguably within the zone of interests to be protected" concerns essentially the same matter — the misuse of natural resources. Standing therefore exists.11 Although plaintiff has standing, more is required for plaintiff to pass muster under the failure to state a claim attack. The complaint asserts that the award of the lease to Triple A had the following environmental impacts: 1) the deep water marine terminal potential of the area was inadequately provided for by the proposed lease, 2) the highest and best use of the property as a port was not promoted, 3) the outlease created the possibility of damaging port expansion elsewhere in the San Francisco Bay, and 4) the lease conflicts with local land use policies approved by the United States to the detriment of the Bay environment. The first two allegations, as a matter of law, are clearly insufficient to support a claim for a violation of NEPA. No environmental injury is alleged by a claim that a project does not include the plaintiff's proposed use of the land. The federal action in this case is the outlease of the Shipyard to Triple A for a use that resumes the former function of the property. The action taken here did not contemplate use of the property as a deep water terminal. Plaintiff's third allegation is similarly insufficient as a matter of law. Assuming that the allegation that the government's failure to allow development of Hunter's Point as a deep water terminal creates the possibility of more environmentally hazardous development in other parts of the Bay is true, it does not state a NEPA claim. If it occurs, it will not be a product of this federal action. The decision to outlease the Shipyard to Triple A is not tantamount to port expansion elsewhere. If and when the City expands the Port of San Francisco the environmental consequences will have to be appropriately dealt with at that time.12 Finally, plaintiff's allegation that the lease to Triple A conflicts with local land use policies approved by the federal government to the detriment of the environment is deficient in that it fails to assert what, if any, environmental effects spring from such alleged conflict. City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). Even if it did adequately state a claim, the federal defendants are entitled to summary judgment for the reasons set forth in the court's disposition of the eighth cause of action. c. Defendants' Compliance with NEPA Assuming arguendo that a claim is stated, the federal defendants request summary judgment on the ground that the Navy's determination that an EIS was not required for this outlease constitutes full compliance with the requirements of NEPA. Pursuant to Navy regulation, a Candidate Environmental Impact Statement (CEIS) was prepared for the outleasing of Hunter's Point. The CEIS Review Panel met in May 1974 to review the CEIS. Their discussion reflects that no issue of "environmental controversy" was associated with the outlease. The record indicates a unanimous vote not to require the preparation and filing of a draft EIS. The affidavit of Edward W. Johnson, Chairman of the CEIS Review Panel, further indicates that it was the panel's "judgment that the environmental effects associated with the leasing would not be 'significant' within the meaning of NEPA." In reviewing a NEPA claim based upon a failure to file an EIS, this court must determine if the finding that an EIS is unnecessary because the proposed project will not significantly affect the environment was a reasonable conclusion. City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). The determination in this case was reasonable. The intent of the outleasing project was to retain the essential character of the Shipyard by leasing it to commercial firms for the same type of activity which the Navy had conducted when the property was a military facility. The CEIS was comprehensive and discussed numerous environmental considerations. It included an analysis of the alternatives of non-use or returning the property to military use. The committee certainly had sufficient information before it from which it could reasonably conclude that no significant environmental effect would follow from the outleasing project. The fact that neither the CEIS itself nor the review panel considered the alternative of utilization of the property for port purposes does not alter this conclusion. There was no contemplation of use of the property for that purpose. If anything, this use would have contemplated a greater environmental effect rather than minimizing harm to the environment from the proposed project. For this reason and the reasons stated previously in this opinion, it was not necessary to file an EIS based upon this factor. By preparing the CEIS and reasonably determining that the outlease would not significantly affect the environment, the defendants complied with NEPA and are entitled to summary judgment on this claim. 3. Non-Compliance with the Coastal Zone Management Act In its eighth cause of action, plaintiff seeks to have the lease set aside on the grounds that the Navy did not comply with the provisions of the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. More specifically, the City and County contends that no attempt was made by the defendant agency to conform the outlease of the Shipyard to the plan of BCDC, the San Francisco Bay Conservation and Development Commission, as required by 16 U.S.C. § 1456(c)(2).13 The Coastal Zone Management Act itself contains no provision for judicial review of agency action. Therefore, plaintiff's standing must be established under 5 U.S.C. § 702. Defendants contend that it is only BCDC and not this plaintiff who have standing to complain in this instance. That is not the case. The "injury in fact" and "zone of interest" elements of the Data Processing, 345 U.S.. at 152, 90 S. Ct. 827, standing test are satisfied. Plaintiff alleges that the non-conformance to the BCDC plan will result in "extensive dredging and waterfront construction" to other portions of San Francisco Bay. In other words, their charge is that failure to conform to local land use plans means that Hunter's Point will not be used as a port, and port development elsewhere will be necessary. Such construction would have to be undertaken by the plaintiff City and County and constitutes both possible economic detriment as well as esthetic and environment harm. The City and County thus suffers an alleged "distinct and palpable injury to himself." Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975). Since plaintiff has the authority and responsibility for administering the Port of San Francisco, this alleged injury affects the City's interest in protecting the environmental integrity of those portions of the San Francisco Bay under its control and insuring the most effective use and management of this resource. As such, it falls within the zone of interests sought to be protected by the Coastal Zone Management Act. However, although the requisite standing is present, defendants are entitled to summary judgment. The Coastal Zone Management Act, 16 U.S.C. § 1456(c)(2), requires federal compliance with "approved state management programs." The lease to Triple A was effective on July 1, 1976. The applicable BCDC program was not approved until February 16, 1977, some eight months later. There is no possibility of improper agency action since no approved land use program was in existence.14 10. Defendants have also asked the court to dismiss the NEPA claim on the ground it raises an ecological smokescreen to cover what is actually an economic objective. It is true that City has not alleged that the Shipyard should not have been leased — only that it should not be leased to Triple A. And in its papers in opposition to defendants' motions (at p. 52) plaintiff candidly indicates a willingness to forget the NEPA claim if the court would order that ". . . the parties make, execute and enter into a valid sublease of the deepwater port facilities as previously committed to by the parties . . . ." However, while defendants' contentions may be well-founded the court is not convinced that Congress has empowered it to investigate ulterior motivation in passing on the validity of a NEPA complaint. 11. Standing of a city to sue under NEPA was recently recognized in City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) in which the city sued to invalidate an interstate highway interchange proposal three miles from the city on the ground that no EIS had been prepared. The court found that the danger that environmental impacts will not be considered was sufficient injury in fact to support that prong of the test: NEPA, as we recently observed, is essentially a procedural statute . . . . . . . The procedural injury implicit in agency failure to prepare an EIS — the creation of a risk that serious environmental impacts will be overlooked — is itself a sufficient 'injury in fact' to support standing, provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences the project may have. 521 F.2d at 670-71. In this case, the City and County has alleged that environmental aspects of the outlease to Triple A were overlooked, i.e., that local land use policies and the attributes of the port were overlooked, due to failure to prepare an EIS. This is sufficient injury. The geographical nexus of the plaintiff to the area is also sufficient, since Hunter's Point is located within the boundaries of the City and County. The City's interests will suffer from any environmental damage caused by Triple A's use of the yard. City of Davis v. Coleman also indicates that plaintiff's alleged injury is within the zone of interests protected by NEPA. The court indicated in that opinion that California municipalities have substantial responsibility for the quality of the environment. Accordingly, the court held that "Davis' municipal interests fall within the scope of NEPA's protections." 521 F.2d at 672. Similarly, San Francisco's municipal interests fall within the scope of NEPA in this case. Moreover, NEPA is intended to protect certain procedural interests of local agencies. Thus, in City of Davis v. Coleman the court held: "The fact that § 102(2)(c) expressly contemplates local government participation in the EIS review process also indicates that Davis is 'arguably within the zone' of NEPA's procedural safeguards." 521 F.2d at 672. In this case, San Francisco has also alleged a sufficient procedural injury to establish standing. 12. For a similar result, see City of Santa Clara California v. Kleppe, 418 F. Supp. 1243 (N.D.Cal.1976). 13. 16 U.S.C. § 1456(c)(2) provides: Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with approved state management programs. 14. This court need not reach the question of whether the Shipyard falls within the "coastal zone" definition (16 U.S.C. § 1453(a)) or whether the lease constituted a development project within the meaning of 16 U.S.C. § 1456(c)(2). Counsel for Plaintiff Counsel for Defendants George M. Coburn Edward Briggs, Assoc. General Counsel Williams, J. [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 8 ELR 20386 | Environmental Law Reporter | copyright © 1978 | All rights reserved |