Aluli v. Brown

No. 78-1364 (9th Cir. July 9, 1979)

The Ninth Circuit Court of Appeals reverses a lower court's injunctive order, 7 ELR 20780, requiring the United States Navy to file annual environmental impact statements in conjunction with its appropriations requests for practice bombing on the Island of Kahoolawe. The Supreme Court's recent decision in Andrus v. Sierra Club establishes that the district court erred in holding that yearly appropriations requests for the bombing operations constituted proposals for major federal action under the National Environmental Policy Act.

Counsel for Appellants
Thomas A. Morrison, Ass't U.S. Attorney
Federal Bldg., 300 Ala Moana Blvd., Honolulu HA 96850
(808) 546-7170

Counsel for Appellees
Joel E. August
Legal Aid Society of Hawaii
2287 Main St., Wailuku HA 96793
(808) 244-3731

Before BROWNING, CHOY and HUG, Circuit Judges.

[9 ELR 20597]

PER CURIAM:

In this action environmentalists challenged the Navy's use of the Hawaiian island of Kahoolawe for military operations. The district court issued broad injunctive relief against the Government designed to protect the Kahoolawe environment. The Government has appealed as to that portion of the injunctive order requiring it "to file an environmental impact statement annually so long as [it] shall continue to bomb Kahoolawe." 437 F. Supp. 602, 612 (D.Hawaii 1977). The District court concluded that this relief was warranted because each yearly appropriation request for money to conduct Kahoolawe operations constituted a "proposal for major Federal action" requiring preparation of an environmental impact statement under § 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C).¹ 437 F. Supp. at 607. In so holding the district court erred.

In Andrus v. Sierra Club, U.S. , 99 S. Ct. 2335, 60 L.Ed.2d (1979), the Supreme Court considered "whether § 102(2)(C) of the National Environmental Policy Act of 1969 . . . requires federal agencies to prepare environmental impact statements . . . to accompany appropriation requests." Id. at , 99 S. Ct. at 2336. The Court concluded "that appropriation requests constitute neither 'proposals for legislation' nor 'proposals for . . . major Federal actions,' and that therefore the procedural requirements of § 102(2)(C) have no application to such requests." Id. at , 99 S. Ct. at 2345.

Therefore, the district court's judgment is reversed and its order vacated insofar as it requires the Government to prepare yearly environmental impact statements to accompany appropriation requests.

REVERSED.

1. Section 102(2)(C) provides:

The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall —

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement . . . on —

(i) the environmental impact of the proposed action . . . .

(Emphasis added.)