Ground Zero Center for Non-Violent Action v. United States Department of the Navy
860 F.3d 1244
9th Cir.2017Background
- Naval Base Kitsap sought to build a second Explosives Handling Wharf (EHW-2) to meet TRIDENT missile maintenance needs; the Navy prepared an EIS and selected a plan adjacent to the existing wharf.
- The publicly released EIS redacted Appendices A–C as containing Unclassified Controlled Nuclear Information (UCNI); the EIS relied on compliance with explosives-safety rules in explaining site choice.
- During litigation, the Navy submitted a fuller administrative record revealing (a) portions of the previously redacted appendices and (b) that the Department of Defense Explosives Safety Board (the Safety Board) had withheld unqualified approval and sought further studies; the Navy instead obtained secretarial certification.
- Ground Zero sued under NEPA, arguing the EIS withheld material information (the appendices and the Safety Board’s disapproval), failed to take a hard look at explosion risks, and inadequately evaluated alternatives; the district court granted summary judgment to the Navy.
- The district court also sealed and restricted use of documents the Navy inadvertently posted on the public docket; Ground Zero appealed, arguing the restrictions violated due process and the First Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to disclose appendix material in EIS | Navy should have released appendices A–C during EIS; later release shows they were not sensitive and deprived public comment | Redaction was a judgment call by different Navy reviewers; some material was UCNI at the time | Court: withholding violated NEPA disclosure rule but the error was harmless (no showing it materially impeded NEPA goals) |
| Failure to disclose Safety Board’s non-approval | EIS should have disclosed Safety Board’s withholding of approval and its concerns | Safety Board applies a stricter "maximum protection" standard than NEPA’s "reasonably foreseeable" standard; Navy took a sufficient hard look and risk was remote | Court: omission violated NEPA’s consultation/disclosure duty but was harmless because Navy’s NEPA-level risk analysis was adequate |
| Adequacy of alternatives analysis | Navy unreasonably narrowed alternatives and prejudiced choice by prior actions preferring a new wharf | Alternatives were reasonable given operational need (400 operational days) and site constraints for submarines | Court: Navy’s purpose/need and range of alternatives were reasonable; NEPA requirements satisfied |
| Order restricting dissemination of inadvertently disclosed docket documents (Due Process / First Amendment) | Restrictions are vague re: independent-source copies and act as an unconstitutional prior restraint | Court protective measures were intended to limit litigation use of inadvertently filed docs and protect security; some dissemination limits permissible | Court: narrowly construes order (independent-source copies may be used); but because First Amendment concerns are substantial, vacated sealing/use orders and remanded for explicit findings under a "compelling reasons" standard |
Key Cases Cited
- Lands Council v. McNair, 537 F.3d 981 (9th Cir.) (en banc) (NEPA "hard look" requirement)
- Weinberger v. Catholic Action of Haw./Peace Educ. Project, 454 U.S. 139 (1981) (FOIA governs EIS public disclosure)
- Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082 (9th Cir. 2004) (Ground Zero I) (treatment of remote explosion risk under NEPA)
- Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095 (9th Cir. 2016) (harmless-error analysis for NEPA disclosure failures)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (limits on dissemination of discovery materials; protective orders)
- Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) ("compelling reasons" standard to seal judicial records)
- New York Times Co. v. United States, 403 U.S. 713 (1971) (prior restraints and heavy First Amendment presumption against prior restraint)
- San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 635 F.3d 1109 (9th Cir. 2011) (scope of public administrative record and handling of sensitive information in NEPA context)