*1 рrop- the firearm suppress motion evidence sufficient There was
erly denied. enable rational during trial to
presented beyond a reasonable
jury to conclude fire- Rodriquez possessed
doubt applies in Corona-Sanchez
arm. case, conclusion dictating the
ACCA drug convictions do
Rodriquez’s prior under predicate offenses
qualify as
ACCA.
AFFIRMED. COALITION,
'ILIO‘ULAOKALANI corporation; nonprofit Na
Hawaii unincorporated Pono, Hawaii
'Imi
association; Kipuka, a Hawaii unin Plaintiffs-Ap association,
corporated
pellants, Secretary RUMSFELD,
Donald H. Harvey, Dr., Sec
Defense; J. Francis Depart
retary States of the United Army, Defendants-Appel
ment of
lees, Secretary Brownlee, Acting
Les Department
the United States Army, Defendant. 05-15915.
No. Appeals, Court of
United States Circuit.
Ninth Dec.
Argued and Submitted 5, 2006.
Filed Oct.
Tlioldaokalani, Pono, Kipuka; Na Tmi Isaac H. Moriwake was on the briefs for Appellants. Gray, Justice, T. Department
Michael D.C., Washington, argued the case Ap- Rumsfeld, pellees Donald H. Secretary of Defense and J. Harvey, Secretary Francis of the United Department States *4 Army; Kelly Johnson, Acting A. Assistant General, Smelzer, Attorney John L. De- Justice, Weiner, partment Barry and A. Justice, Department of on were the briefs for Appellees. FLETCHER, THOMPSON,
Before B. BEA, Judges. and Circuit Opinion Judge BETTY B. FLETCHER; Dissent Judge BEA FLETCHER, BETTY B. Judge. Circuit appeal requires This tous assess wheth- Army complied er the with the National Policy Environmental Act (“NEPA”), §§ (2006), U.S.C. 4321-4347 in planning programs to modernize and forces, streamline its while simultaneously maintaining readiness. While the meta- morphosis strategic and the planning accompanying this transforma- tion is Army, the business of the not the courts, compliance with NEPA does involve us. part
As of its NEPA evaluation of the Plan, Transformation Campaign Army completed programmatic environ- (“PEIS”), mental impact statement which identified Hawaii as one of the selected sites for transformation. Subse- quently, the undertook a site-specific Henkin, Earthjustice, David L. (“SEIS”) impact Honolu- statement lu, HI, argued the case for Appellants to detail impacts on the environment of PEIS”) (Feb.2002) (“Final use, Statement pact and activi- land Army’s expansion, 1-1, AR 2nd at transforming the ties associated Oahu, Hawaii, on now
Brigade, stationed undertaking thirty-year This will have Combat Team Stryker Brigade into a (Initial Phase, phases Capa- Interim three Plaintiffs, (“SBCT”) ‘Ilio'ulaok- in Hawaii. Phase, bility Objective Capability and Pono, Kipuka Coalition, Na Tmi alani Phase) objectives corresponding and three (“Hawaiian the suffi- Groups”), challenged (Initial Force, Force, Objec- Interim procedure, NEPA ciency Force). AR 0009656- P-ROD tive site-specific programmatic both at Phase, began in Initial which 57. The (1) the levels, arguing that grounds, two completеd 1999 and had October been public comply failed with NEPA’s objective appeal, had as its the time of (2) the PEIS both requirements notice Initial Combat the creation of two reasonable to consider failed SEIS (“BCTs”). units, Bri- Two the 3rd Teams alternatives. Infantry and the 1st Division gade, 2nd *5 Division, Infantry summary Brigade, 25th Fort granted court district The Lewis, to finding Washington, were transformed Army, judgment objective. accomplish compliant were notice efforts public Release, Office, sufficiently it considered Public Affairs Press NEPA and that Bri- transforming of Next Interim Announces Locations reasonable alternatives 12, 2001), AR (July re- Brigade gade in Hawaii. We now Combat Teams the 2nd The of this Initial Phase of the court’s portion district 0003512. verse and organizational op- an consid- to “validate that held that decision [Brigade Interim BCTs to trans- model for reasonable alternatives erational ered all “develop[] and to in Hawaii Brigade Teams]” of the 2nd Combat formation tactical doctrine strategic, operational, and require prepare and remand to of transformation.” subsequent phases all reason- for supplemental to consider SEIS 2-5, at AR 0003878. “These alternatives, Final notably poten- most PEIS able to evaluate being ... are used transforming brigades out- tial Organiza- and Operations and refine Hawaii. side of team Concept brigade combat tion Background I. (BCT) tactics, techniques, and validate 2, at AR procedures.” P-ROD and A. The Planned Transforma- 0009657. Phase, aspects of Capability The Interim 1999, Secretary of the and In us, appeals before at issue a which are of the announced of Staff Chief the field- objective “complet[ing] has as its of the major re-working United States The eight Interim BCTs.” ing of five this effort is the objective of Army. Leg- consist “both Interim Force would deployable, responsive, of a “more creation Fi- forces.” survivable, acy Forces and transformed versatile, lethal, and sus- agile, 2-5, These AR 0003878. nal PEIS strategically which is also tainable” any- deploying capable of BCTs will be Programmаtic responsive and nimble. Id. at 1- days. (“P-ROD”) world four (Apr.2002) where in the Record Decision begin This will phase AR 0003864. Army describes AR vehicles armored fielding of interim “with that would achieve the “ultimate force (IAVs) I[nter- the last will end when “Objective Force.” as the Army Vision” manned, equipped, fully Im- Programmatic im]BCT Environmental Final capabilities de- possess trained to a. A comparison likely envi- (alterna- Operations I[nterim]BCT scribed in the ronmental effects at candidate tive) Organization Concept.” P-ROD at placement sites for brigades of the Objective AR will Phase planned for the Interim Force. complete the transformation into analysis b. Identification and Objective Force described above. Id. types major actions contained in the AR 0009656-57. Objective ATCP leading Force today1 Both cases decided address is and their associated activities and conse- part sues that arose as of the Interim quential types magnitude of effects. Phase, namely Capability the transforma 3.Action 2: Whereby Alternative tion of 2nd Hawaii into only partially ATCP would imple- Stryker Interim present BCT. We budgetary mented because of or other light view the facts in the most favorable constraints. to Plaintiffs-Appellants Groups Hawaiian as this is an from appeal grant summary judgment appellees and denial To further publicize the scoping period summary judgment appellants. See PEIS, published for the the Army a notice Brown, Ojai Envtl. Coal. Today in USA December 2000. A (9th Cir.1995). 1411, 1414 large reads, title “PUBLIC NOTICE.” slightly smaller font is a subheading stat- Programmatic
B. Environmental *6 ing, “THE DEPARTMENT OF THE Impact Statement ARMY SEEKS PUBLIC INPUT FOR 2000, 15, On Army pub- December PROGRAMMATIC ENVIRONMENTAL in Register lished the Federal its notice IMPACT STATEMENT FOR IMPLE- (“NOI”) prepare intent a PEIS for its MENTATION OF THE ARMY TRANS- planned Fed.Reg. overhaul. 78476 FORMATION CAMPAIGN AR PLAN.” (Dec. 2000). 15, At point, the Initial that, 0004167. type, Below in small already underway Phase was in Fort Lew- notice indicates that Army seeking is, Washington. Id. NOI described public comment to determine the “appro- the alternatives that would be considered priate scope of its Programmatic Environ- in the PEIS: mental Impact Statement” and summa-
1. No Action Alternative: Whereby the rizes the аlternatives to be considered as ATCP not implemented and alternative, the “no-action” implemen- “full changes needed to Army equipment, TCP,” tation of “partial and implemen- force practices structure and training tation of the Army TCP.” Id. That separately would be analyzed piece- aon provided notice of the pending PEIS in the meal basis. Register Federal and in USA not Today, 2. Action 1: Whereby Alternative media, the Hawaiian is not in dispute. program for Army transformation of the The Army not did invite state and local present better meet and future na- agencies participate scoping for the tional security requirements and fulfill Army PEIS. The internally noted Army Vision would be initiated there “[vjirtually public response no ” accordance with the ATCP including: ‘scoping.’ Dep’t Transforma- case, 1,402 1. The other United States v. Brigade. Acres transformation of 2nd That case Land, al., et 2006 WL disposed concerns separate of in a memorandum of the Army's acquisition disposition. of land to serve its PEIS, issued in Feb- Army’s Final Office, Out- Involvement Public tion no action alter- ruary considered the and the Army Transformation for reach but, summarizing its consider- native PEIS, presentation, slide Transformation alternatives, noted of other ation AR 0004584. quo would “maintenance of forces status during practices with its Consistent ability to maintain impair the Army published a Notice scoping, to the Nation and fulfill commitment Imple- for Availability of the Draft PEIS 2-9, AR Final PEIS Vision.” Transformation mentation only The Final PEIS considered 0003882. (Oct. Register, Fed.Reg. Federal alternatives, no-action alternative two Today 2001), on October USA implementation full available 31, 2001, the Draft PEIS making ES-2, Id. at AR Transformation Plan. AR public comment. PEIS The Final determined Army did not Again, the 00010390-91. full implemen- preferred alternative to, and the Draft PEIS did circulate Army Transforma- of the tation from, agen- local state or solicit comments also indicated Plan. The PEIS Final writ- provide cies. Neither did the to conduct trans- expected that the or soli- rath- organizations place,” to national “in еxisting ten notice units formation 4-3, AR interested from them. potentially re-locating cit comments than er Plaintiffs remained communities. The 2nd individuals Ac- for Interim Phase transformation. target on the Draft PEIS. comment did not Br. at 11. The Resp. Appellees’ the Fed. confirmed cording to Plaintiffs of Decision the Record list, signed in Hawaii no one Army’s distribution (“ROD”) PEIS, with its proceeding the Draft PEIS. National- sought copies of desig- alternative and finalized preferred submitted public ly, one member for conversion nation Pls.-Appel- on the Draft PEIS. comments BCT, upon a site- contingent an Interim The Draft Br. at 22-23. *7 Opening lants’ 0009656, 1, AR at EIS. P-ROD specific how the transformation PEIS described 0009665. Stryker Brigade into brigades certain (“SBCTs”) take would Teams recognized
Combat Army’s experts The own phase, the Interim during the second place not of the PEIS and ROD shortcomings Phase, overhaul. of the min- Capability The they published. long after were Brigade 2nd meeting pre- identified the The Draft PEIS of an internal June utes in one of the units that Hawaii as that “the stationed indicate paring for SEIS during language undergo specific would not contain PEIS does Programmatic En- select- Draft of the why Interim Phase.2 each five sites about (Oct.2001) Army from the Impact Report Action vironmental Statement ed.” After (“Draft PEIS”), 2-9, AR The Process Coordina- at 0003597. NEPA Interim Force Today 2002) (“After (June 4-5, Ac- Meeting an- Register and USA tion Federal 3, AR Accord- at 0088102. any Report”), informa- did not contain tion nouncements document, “did know by ing affected Hawaii would be why they were Pls.-Appellants’ what the sites were planned transformation. in- selected, want that detailed didn’t but Br. Opening selected, tentatively, Brigade at least had been Army's formal announcement While began. scoping be included in for the PEIS before July came the 2nd Phase Interim waii, go formation to into the PEIS.” Id. Be- starting scoping by notifying cause the five sites Interim Phase inviting comment from a breadth of Ha- ROD, in the main transformation are “the organizations, including waiian or- civic no support- issue now that the ROD has ganizations, groups, veteran retired mili- ing analysis the PEIS.” Id. tary officials, city gоvernment state and experts recognized “potential this as a de- officials, Congress, members Hawaii, ficiency.” Id. “In both Alaska and neighborhood boards. The also question why has arisen as to out groups representing reached low- Army picked these sites.” income, minority and Native Hawaiian Final Site-Specific constituencies. Envi-
As to the alternatives considered Statement, ronmental Impact Transfor- PEIS, a legal issues forum documented mation Infantry of the 2nd Brigade, 25th minutes, in response question (Light) Stryker Division whether SEIS should look at other 2004) (May Combat Team Hawaii units, at- locations the selected (“Final 1-9, SEIS”), 1-8, AR 0051279- torneys responded that the PEIS foreclos- 80. After publication NOI ed consideration other locations: Register, the Federal publish- unless the local situation suggests that it in all major newspapers ed notices may impossible they to train where 8, 2002, April Oahu Hawaii on an- are now. The PEIS leaves us short on nouncing scoping meetings. only alternatives. The alternatives we held scoping seven meetings between have are no action versus action. The P April 16 and five on Oahu and & [purpose N and need] statements are two on the island of Hawaii. The meet- so tightly crafted that we be re- ings on Hawaii are not at issue here. At stricting ourselves too much. The PEIS Oahu, scoping meetings on 100 oral only looked at one alternative. comments were received from individuals 5-6, Id. at AR 0088104-05. organizations. also re- questions response to whether ceived written comments from 199 indi- the public “reasonable for to ask on why organizations, viduals and 21 comments issue,” siting attorneys responded: website, through its comments tele- “Yes; the ROD makes decision that is phone, and 77 comments at in- additional on analysis. based Installations meetings formation requested by organi- need a position paper why the sites zations. Final SEIS at AR 0051280. *8 picked, were so that we have an adminis- trative record of the decision that can be alternatives, The SEIS considered three 6, referenced.” at Id. AR 0088105. When alternаtive, the no-action the reduced land asked whether programmatic about acquisition alternative, and proposed fixed, ROD can be attorneys responded: Decision, action. Record Transforma- “The only alternatives are HQDA to have tion of the Brigade, Infantry 2nd 25th [Headquarters] bear the burden or have (Light) Division Stryker Brigade the installations bear it. Installations will 2004) (“S- Combat Team in (July Hawaii probably have to drive on.” Id. ROD”), AR 0010317-18. The pro- posed action converting consists of 2nd Site-Specific
C. Environmental Im- Brigade into a on SBCT Oahu. The re- pact Statement duced land acquisition alternative identi- action, then undertook a for SEIS cal to except for de- Brigade’s the 2nd in Ha- land acquisition creased the South
1091
(“SRAA”).
1246,
F.Supp.2d
1253
Rumsfeld,
Id.
Acquisition Area
Range
(D.Haw.2005).
8,
response
public
In
The district court found
AR 0010318.
“[wjithout
why
outside of
alternatives
com-
questions as to
the benefit of such
considered,
re-
ments,
were not
opportu-
Hawaii
not have the
did
to transform the
the decision
sponded that
respond
explanation
an
nity
made in the
place had been
proper
concerns at the
address Plaintiffs’
28,
May
on
The Final SEIS issued
PEIS.
process.”
Id. The district
point
7,
July
2004; the
followed on
ROD
on
holding
Dep’t
court
rested its
transforming
the 2nd
and recommitted
752,
Citizen,
Transp. v. Public
541 U.S.
in Hawaii.
2204,
(2004), and
1093 comments, (“Comments 2001) expert agency public scru- 7, on Draft (May (Comments Martin, tiny implementing are essential to NEPA.” PEIS”), of Paul at 1-6 1500.1(b). §Id. for the Compliance Coordinator NEPA Ctr., Timothy Army’s Envtl. Comments of passed pro “to Congress NEPA Envtl. Pro- Julius, the Dir. of Office of by requiring tect the that fed environment 0004465-66, 0004476-79; AR grams), carefully weigh agencies eral environmen 0004486-88; Farley, AR Email from Scott potential tal considerations and consider AR 0088100- Report After Action proposed alternatives to the action before knowl- independent any major launches feder government Plain- edge very issue that concerns of Powell, al Council v. 395 action.” Lands case, such that “there no tiffs in (9th Cir.2005). F.3d “NEPA 1026 point to them out need for a commentator requires agency that a federal consider ability its preserve order specifically aspect every significant environmen challenge a action.” Public proposed ... impact tal of a action [and] Citizen, 124 S.Ct. public inform the that it has indeed consid right their not waived Plaintiffs have ered environmental concerns in its deci- Army’s sufficiency challenge sionmaking process.” Earth Island Inst. alternatives. consideration of reasonable Serv., F.3d v. U.S. Forest (9th Cir.2003) (internal quotation marks of Reasonable III. Consideration omitted). accomplish “[T]o and citations under NEPA Alternatives this, require imposes procedural NEPA meta- Strategic planning and agencies to take a designed ments force business, morphosis are the look’ at conse ‘hard however, us, involves the courts’. What however, not, NEPA quences.” Id. does Army pre- requirement that the NEPA’s any outcome. Lands mandate substantive EIS examine what effects pare an Council, NEPA, 395 F.3d 1026. Under (the environment plans will have including Army, agencies, all federal plan for nu- example would be extreme impact prepare must an environmental testing require that would extensive clear (“EIS”) “major Federal for all statement Here, that it analysis). assumes affecting quality of significantly actions comply with NEPA. obligation has an 42 U.S.C. the human environment.” That not at At issue is whether issue. 4332(2)(C). full provide § That EIS “shall adequate. compliance environ significant and fair discussion inform decision- impacts
mental and shall A. NEPA public reasonable makers would avoid or minimize alternatives which Policy Act Environmental The National quality or enhance the impacts adverse NEPA, 1969, commonly known as “is 40 C.F.R. the human environment.” protection charter for our basic national § 1502.1. 1500.1(a) § the environment.” C.F.R. (2006). regulations implementing B. of Review Standard to “in- developed procedures
NEPA have court’s the district We review de novo information is sure that environmental summary appellees’ favor. judgment public officials and citizens be- available Dep’t Dist. v. U.S. actions Westlands Water fore are made and before decisions (9th Cir.2004). Interior, information must be of are taken. The must the evidence analysis, doing, we view so high quality. Accurate scientific *11 1094 statements) and or light Appellants program policy favorable to sub- most with sequent genuine there are narrower statements or envi-
determine whether (such analyses regional ronmental as or fact and issues of material whether program basinwide statements or ulti- correctly applied the sub district court statements) mately site-specific incorpo- Ojai, Envtl. Coal. 72 F.3d stantive law. of rating by general reference the discus- agency at 1414. An decision be set solely sions and concentrating on the “arbitrary, capricious, an if aside specific subsequent- issues to statement discretion, or abuse of otherwise not ly prepared. law.” 5 accordance with U.S.C. 706(2)(A).
§ §Id. 1508.28. “encouraged ... Tiering is eliminate reviewing sufficiency of repetitive discussions the same issues EIS, employ an “a we rule reason” focus on the actual issues ripe “that inquires standard of review whether decision at each level environmental re- reasonably thorough an EIS contains a Here, § view.” Id. 1502.20. where aspects significant discussion of the agency moving program, plan, from “a probable consequences.” environmental policy impact environmental statement (9th Block, 753, v. 690 F.2d 761 Cir. Cal. ... site-specific analy- statement or 1982) (internal quotation marks cita sis,” 1508.28(a), § id. tiering appropri- omitted). tion This “rule of reason” stan ate. materially dard is not different from arbi trary capricious review. Lands In the context of national forest Council, F.3d at 1026 n. 395 “We make management, we programmat defined the judgment a pragmatic whether the [Envi stage ic as the level “at which the [agency] form, Impact Statement’s] ronmental con develops management alternative scenar preparation tent and foster informed both concerns, responsive to public analyzes ios decision-making public par and informed costs, and consequences benefits City Carmel-By-The-Sea ticipation.” each alternative in an im environmental Transp., v. U.S. Dep’t 123 F.3d (‘EIS’), pact statement adopts an Cir.1997) (9th Block, 1150-51 (citing amendable forest plan guide manage 761) (internal F.2d at quotation marks multiple ment of Ecology use resources.” omitted). discharge duty, To our we must Ctr., Serv., Inc. v. U.S. Forest 192 F.3d agency be satisfied that the has taken (9th Cir.1999). 923 n. Following the “hard look” the environmental conse programmatic stage “implementa is the quences of Id. at 1151. a decision. stage during spe which individual site projects, cific consistent with the forest
C. The NEPA Process plan, are A assessed.” Id. adopted ap a “tiered” programmatic provide EIS must “suffi proach compliance NEPA, to its pre cient detail to foster informed decision- paring a programmatic EIS followed a making,” agency fully but need not site-specific regulations EIS. NEPA en site-specific impacts evaluate “until a criti courage agencies to “tier” their environ cal decision has been made to act on site mental impact statements in some situa development.” Friends Yosemite Val § tions. See C.F.R. 1502.20. Norton, (9th v. ley F.3d Cir. 2003)
“Tiering” coverage refers to the of gen- (quoting N. Envtl. Alaska Ctr. (9th Cir.1992) eral matters in broader Lujan, 890-91 (such omitted)). impact (quotation statements national marks
1095 Forester, 815 v. deeper Regional lev- reached a The PEIS Cir.1987) (9th “an (noting in that that environ than is usual specificity of el that will units must consider ev specific impact mental statement named several Phase indi- in the Interim and that “the ery transform alternative” reasonable will take transformation that such range cated of alternatives must be sufficient the names Although PEIS choice.”), place “on-site.” on reasoned rev’d other permit a of as one these Brigade 2nd in Hawaii the 490 109 104 grounds, S.Ct. on-site, it does transformation units set for remand, (1989), 879 L.Ed.2d 351 aff'd environ- any analysis of the Cir.1989). not undertake (9th F.2d 705 with that trans- associated impacts mental Bri- Selecting The 2nd PEIS: PEIS, which des- Following its
formation. gade 2nd Hawaii one Brigade ignated committed transformed and the units We first consider whether transformation, under- to on-site analysis of have undertaken should Hawaii transformation a SEIS for the took transforming of the 2nd Bri impacts the PEIS’s deter- Based on of unit. gade in Hawaii in PEIS. California the 2nd of mination that transformation (9th Cir.1982), Block, F.2d 753 sets place in Hawaii on Brigade take for our review of PEIS’s foundation Oahu, alterna- considered three the SEIS It guides of alternatives. consideration tives, transformation all of which involved site-specific of when the determination Brigade in Hawaii on Oahu— the 2nd is analysis pro must where there a occur action, reduced-land-aequi- a proposed grammatic EIS: alternative, alterna- a no-action sition requires in an detail that NEPA argue Appellants tive. depends upon the nature EIS to consider analysis tiered failed NEPA action. The proposed scope alternatives, particularly the reasonable an normally applied assess standards outside when a require further refinement EIS of Hawaii. EIS reviewed. largely programmatic Wrong D. Went Where considering inquiry critical a prepared An must and an EIS adequacy EIS describe an scale, alyze multi-step project action. large alternatives section im- Indeed, analysis site-specific the alternatives the project’s whether impact detail, is the heart of the environmental but pact evaluated should be look agency must statement. The evaluation should when such detailed every alternative within reasonable the evalua- requires NEPA occur. scope range by the nature dictated project’s environmental conse- tion of The existence rea proposal. early stage quences place take but unexamined alternatives sonable This process. project’s planning inadequate. EIS renders an tempered, though, requirement we focus command that statutory v. Morri- Friends Southeast’s Future parameters as Cir.1998) upon proposal’s (9th son, 1059, F.3d requirement agency defines them. (internal quotation marks citations preference tempered is further § omitted); (stating see C.F.R. 1502.14 until a con- analysis to defer detailed is the of alternatives that consideration crystallizes proposal development impact state- crete “heart the environmental probable project’s of a dimensions ment.”); Valley Council Methow Citizens consequences. When transformation of the 2nd had lit- already programmatic EIS has been tle support analy- the document and no *13 prepared, site-specif- we have held that sites, requiring sis of alternative the SEIS fully impacts ic need evaluated provide analysis to supporting a deсision until a “critical has decision” been Martin, made in the Paul of PEIS. the to act on site development. made This Center, Army Environmental com- when, prac- threshold is reached as a the draft mented on PEIS: matter, agency proposes tical the to Interim Force are ripe considerations make “irreversible and irretrievable reasonably analysis----In- detailed availability commitment of the of re- terim Force development is an imminent particular to a project sources” at a proposal a requiring near term decision site. and commitment of resources that (internal omitted). Id. at 761 citations on ground impacts will have the within agency’s challenge The and ours is to eight years.... five next to Para- right find balance between the efficien- graph plans that the Army screams cy tiering, of benefits described in 40 Major make resource [sic] allocation 1502.20, § agen- C.F.R. deference to the decision on the Interim Force without cy’s definition of the purpose and need of consideration of alternatives. action, recognition and the Comments on Draft PEIS at AR that the PEIS constrains future decision- making analyze must therefore alter- addition, explicitly SEIS ruled in sufficient detail prevent natives fore- out consideration of alternatives that sta- of options closure insufficient consid- Brigade tioned 2nd outside of Hawaii eration. Id. at 762-63. grounds that this would be inconsis- Appellants argue that the PEIS tent with the PEIS. Once the PEIS was made decision to commit resources issued, longer there question was no of
particular site—the transformation of the whether the 2nd Brigade would transform Brigade 2nd in Hawaii. The coun Hawaii, in only a matter of how. ters that it did not commit to transform Appellees also argue that all units Brigade the 2nd until the issuance are scheduled to transform under the thir- ROD, SEIS and that though even ty-year plan and therefore that the 2nd Brigade PEIS identified the 2nd as target Brigade is no different from other ed for during transformation the Interim Brigade in Army’s terms decision to Phase, the Army reserved judgment until in-place. transform Appellees’ Fed. Resp. completion of Appellees’ the SEIS. Fed. Br. at 35. The problem with this argu- Resp. Br. at 32. The comments of the Brigade ment is that the 2nd is scheduled Army’s own experts indicate otherwise. to transform much sooner than most other post-PEIS, The minutes of a June 2002 Brigades site-specific plans for the —the pre-SEIS Army planning meeting indicate 2nd Brigade crystallized are more than experts recognized own those for the brigades that will not under- that the decision to commit resources to go transformation until the Final Phase. transformation of the 2nd place was during experts made own PEIS therefore realized that site-specific analysis site-specific should have made been decisions in undertaken the PEIS. analysis impacts conclusions PEIS without of their articulated in in-place the PEIS ROD to or alternatives, as consideration reasonable this, Despite cause on-site NEPA. required as appropriate it was PEIS Army argues that mandated as SEIS, using analysis until the articulated in the defer SEIS need statement). “tiering” its crutch. The can’t have it both principles of the 2nd ways. on transformation explain settled Either needed PEIS; however, Brigade Hawaii its decision transform the 2nd PEIS analysis no this decision with it reached Brigade Hawaii and consider reasonable impacts or reason- alternatives in the PEIS it needed *14 a transformation. able alternatives to such SEIS, explain that the decision in but the per improper se nothing While there is simultaneously Army argue cannot that reaching pro- these at the about decisions the had been made in the decision PEIS it is to do grammatic stage, improper so Somewhere, and that it had not. the analysis undertaking required without site-specific Army analy- must undertake by NEPA when those decisions are made. sis, including consideration of reasonable alternatives.
2. The SEIS 3. Reasonable Alternatives alter having considered Without 2nd Bri to transformation of the natives scope The alterna reasonable PEIS, Army gade in Hawaii in the that must agency tives an consider is obligation an to consider such alternatives shaped by purpose and need statement argues that Army in the The SEIS. Army that The agency. articulated con scope reasonable alternatives to be all must consider reasonable alternatives in the was bound or limited sidered SEIS it purpose within the and need has defined. decision to transform in the PEIS’s to See Nw. Coalition Alternatives Pes purpose in the Hawaii as articulated SEIS (NCAP) Lyng, v. 592 ticides and need statement. (9th (“[I]t Cir.1988) scope is the it, any determination way Army program The it was that influences would have of what alternatives are viable and reason required neither to examine alternatives to (be- able.”). to find that the Appellants in the ask us transformation in Hawaii PEIS and need state site-specific Army purpose had not defined cause the threshold crossed) (be- narrowly.5 in the too We do yet nor in the ment SEIS been SEIS at AR principle on Draft PEIS Appellants rely 5. on the that while need.” Comments agency Timothy has the discretion define the that the Julius commented 0004478. may purpose project, of a need woefully inadequate: The alternatives "EIS is objectives unreasonably narrow "define its 'analysis' meaningless. is the are Where City Carmel-By-The-Sea, 123 F.3d terms.” ... initiated in the NOI? installations as Appellants Army note internal com- starting point analysis provides no decision mentary was undertaken in before the SEIS Based that would be useful to installations. support argument that de- of their document, forcing is on this objectives narrowly too in the PEIS. fined its justify individually transforma- installations "The PEIS leaves us short on alternatives. to describ- AR 0004485. In addition tion.” only no action alternatives we have are framing Army's provides no ing real how action. The P & N statements are versus consideration, com- Julius' alternatives tightly restricting that we crafted so also drive home the fact ments Report at too much.” After Action ourselves approach rather here was backwards: 5-6, Martin indicates AR 00088104-05. Paul making site with full infor- than decisions framing of the transformation "has choosing impacts of those about the mation rational consideration alter- foreclosed sites, site decisions and made its natives, purpose ... meet the stated Slater, the problem. City not see that as What ened.” Alexandria (D.C.Cir.1999) F.3d missing (quoting of alternate Nat- the consideration Morton, ural Res. Council v. accomplish ways to its stated mission. Defense (D.C.Cir.1972)) (quotation F.2d its mission as follows: “to states omitted). marks Between the ar- char- enable achieve force ticulated the PEIS and that articulated in the Vision acteristics articulated SEIS, the Army made the decision timely in the most and efficient manner require transformation of 2nd Bri- possible compromising and without readi- gade Hawaii. decision This was never and responsiveness.... ness Transforma- justified explained or and foreclosed alter- changing needed address the natives that could have been consistent Century.” circumstances of 21st Final with the stated mission. leaps AR It PEIS then Furthermore, unambigu- record is assumption transformation in Ha- compelling finding our that transfor- or no only action are the alternatives. ous— waii *15 mation of the 2nd of Brigade outside Ha- impermissible This where the “narrow- waii was a reasonable that alternative the ing” place. Army takes violated Army required was to consider under by NEPA not considering alternatives First, NEPA. the own experts rec- Brigade include transformation of 2nd ognized that the failure undertake this outside of Hawaii.6 analysis in the problem PEIS created a The issue we consider is whether trans- under NEPA —an unsupported conclusion Brigade formation of the 2nd of outside needing justified to be a SEIS was Hawaii is a reasonable alternative in the Second, path avoiding analysis. back-door of purpose context need: and Army already started transforma- Army “to enable the to achieve the force of brigades, other west-coast including Army characteristics articulated Vi- Lewis, Washington, two Ft. an alterna- timely sion in the most and efficient man- tive location where transformation of the possible ner compromising and without Brigade 2nd could happen potentially responsiveness.” readiness and Id. This environment, lower cost to the and another own, not, terms, purpose by “is its tied to a brigade, Calvary Louisiana, the 2nd from land,” specific parcel of Valley, Methow which was moved for its transformation. 815, 833 F.2d at indicating that transfor- a. Internal Acknowledgment of mation outside Hawaii is a reasonable Need to Consider Off-island Trans- alternative. Our sister circuit held has formation that “[w]hen the action [here Brigade] transformation of the 2nd is an replete The record is expressions of integral part of a plan coordinated to deal concern that the Army never explained its problem, with a broad range of alter- decision to not consider alternatives involv- natives that must be evaluated is broad- ing transforming the 2nd Brigade outside justify argument asked the installations to deci- those This assumes that the made site-specific sions in their EISs. (i.e., very this decision in the PEIS transfor- comments, them, simply Hawaii) These as we see 2nd mation of the in a highlight Army's failure consider rea- obligations manner consistent with its under sonable alternatives in either the PEIS or reject assumption We NEPA. this and find SEIS. unsupported by making that the erred site-specific Army's determinations. The reli- Army argues 6. The that the PEIS its limits ''tiering'' unhelpful ance on to its claims. framing purpose of the SEIS's and need transforming in Hawaii. specific Headquarters and their EISs —the Army personnel Hawai- Hawaii. ques- Army (“HQDA”) Department sought both an answer ians tion, thought Action “Why See After Re- should have done that. He Hawaii?” This questions AR these should be answered port incomplete information un- Headquarters about outside of the in a concern PEIS transform in decision to derpinning supplemental EIS. Id. Army during Hawaii raised within was In a question answer session at preparation and in process
the PEIS asking meeting, response question SEIS, public during scop- whether it would be better ing site-specific for the EIS. Headquarters unified develop outset, exрressed From the staff and need statement for each location cho- scope the PEIS and concern about the transform, Major sen to Command decisions. explain siting failure to See attorneys responded: (reviewers May note noted supra is, PEIS is what it the ROD. framing HQDA effectively supplement can’t “foreclosed rational consideration documents, po- those that will alternatives, pur- ... to meet the stated However, give tential weakness. it does need,” AR the PEIS pose right installations the to look differ- “woefully inadequate,” alterna- “[t]he training ent site alternatives. LTC Ko- is forc- meaningless,” tives “the G-3, take zlowski will the issue individually justify ing installations *16 probably put together who a task will 0004485.). transformation,” AR force to correct the mistake not ad- of these responded dressing to con- location selections PEIS never Following completion cerns. PEIS. SEIS, preparation PEIS and in for added). 5, at (emphasis AR 0088104 that “[t]he staff comments revealed questions about response to wheth- on us short alternatives. The PEIS leaves public er it is for the to ask “reasonable no only are action alternatives we have issue,” why siting attor- on the same PThe & N statements are
versus action. neys answered: that restrict- tightly crafted so we be Yes; a decision that is the ROD makes After ing too much.” Action ourselves any analysis. not Installations based on AR The min- Report 0088104-05. why the sites position paper need a meeting utes of that read: an admin- picked, were so that we have major during A that issue surfaced can record the decision that istrative that was the fact group discussion HQDA to either has referenced.... language specific PEIS not contain does or to address issue revise the ROD why about each of the five sites was look at installations will have to station- helpful selected. It would have been to only ing alterna- alternatives.... have there so that each site could HQDA tives bear the are to burden queried to refer the PEIS when about it. bear Instal- have the installations main reasons for selection.... issue to on. probably have drive lations will supporting no now that ROD has Id. at AR 0088105. analysis in the PEIS. for Ana- Army’s Rationale Not b. The Id. at AR 0088102. lyzing Alternatives noted that Lieutenant Colonel Kozlowski now record argues Major Com- up it should be siting decisions in demonstrates explain mands strategic is of Brigade Brigade happen 2nd Hawaii im- tion of the 2nd could potentially portance, that transformation in Hawaii less detriment to the environ- Furthermore, ment. it is clear that training critical for the soldiers Army knew that it the authority expected that would arise in “conditions Brigade consider moving 2nd Wash- situations,” combat and therefore that ington or Alaska transformation. See transforming outside of Hawaii is not a Army, Dep’t Strategic Envtl. As- Final reasonable alternative. SEIS at 1- Transformation, sessment for Initial argument AR 0051275. This is under- (Nov. 17, 2000), Report AR 0005547 purpose mined the record. The SEIS (listing “[r]e-stationing brigades to take and need statement offers three factors advantage training opportu- assets and why Brigade explain was cho- nities” as a “type[ proposal! ] that must ] Stryker Brigade: sen to transform into a be considered” analysis.). NEPA For (1) location of the 2nd within the example, moved another bri- (2) strategically important Rim; Pacific gade, the 2nd Cavalry Regiment Armored the terrain and conditions in Hawaii from Louisiana Fort Lewis its trans- closely approximate which most those formation a Stryker Brigade into Combat (3) Rim; likely be found in the Pacific Release, See Team. Press Joint Readiness major proximity seaports airbases and Training Center and Fort Polk Public Af- deployment Unfortunately makes easier. Office, fairs Fort Polk to Receive New however, Army, for the the SEIS does Infantry Brigade (July 23, Combat Team support own and need 2004), Thus, AR Army’s argu- statement, or a finding transforma- ment that Hawaii is close to the Pacific of the 2nd in Hawaii is the Rim seaports and has access to and airbas- only reasonable alternative. This finding es does not question, answer the “Why developed undermined evidence Hawaii?” the SEIS. *17 (2) Importance The of Terrain Hawaii’s (1) Location the Pacific Rim and and Conditions Proximity to Airbases Seaports and Army The also argues that Hawaii’s theAs SEIS’s Statement of points Need unique terrain and conditions mandate out, other locations in the United States Hawaii. At argu- oral proximity to the Pacific Rim have ment and subsequent supplemental designated early been for transformation: briefing, Appellees focused our attention “There are two other on SBCTs the Pacific argument on their that Hawaii’s terrain is of coast the continental United States unique the United States and most (Alaska and Washington) support de- closely approximates tropical terrain ployment to the critically important Pacific Pacific Rim and elsewhere in the world. Rim____” 1-5, Final SEIS at AR 0051576. study cites on Installa- Nothing in distinguishes the record Hawaii tion Training Capacity by Army Head- from Alaska Washington. or quarters, which “[tjraining notes that ar-
Transformation of brigades at Fort Oahu, eas on unique Hawaii are in the Lewis, Washington part was of the Initial Army’s training inventory. They land are Phase Transformation. only jungle setting.” mountainous already started transformation HQDA, Directorate, Training Office of these other brigades, west-coast creat- Dep. Chief Operations of Staff for and ing Plans, (ITC) alternative locations where Training transforma- Installation Capacity
HOI (Dec. 1997), Drum Road in transit Study other locations. Report Phase 2-37, training Stryker refer AR 0051322. These documents AR 0002886. “[ujrban (“KLOA”) operations training” Area focuses on Training Kawailoa “new employ urban warfare facili- will on Oahu. 2-36, AR ties.” Id. at 23,348 on the acres KLOA consists that noted the At time slope of the Ko'olau Mountain western unique training that KLOA’s mountainous 5,310 acres are suitable Range, of which jungle provide Army, terrain would training Final maneuver activities. for Stryker brigades yet did not exist. The 7-15, 7-14, AR 0051956-57. SEIS that, jungle indicates while that ter- SEIS infantry small unit support “KLOA can unique important light rain for remaining helicopter. maneuvers infantry brigades 2nd Bri- like current for unsuitable maneuver land is considered Stryker gade, support KLOA cannot vehi- support mountain and trаining, but can cles, training and no mounted is envisioned areas, In jungle training. these warfare possible there. The fact that Oahu has file, single troop deployment is limited justify terrain does not alone jungle ridgelines.” Id. at unit movement on small involving elimination of alternatives trans- state- 00551957. Based AR Brigade formation of the 2nd outside SEIS, argues that Appellee ment in the Hawaii. offers assertion Hawaii Brigade unique areas training for Ultimately, question by the raised Stryk- into a once it has been transformed during experts pro- own the PEIS “fully er consistent with following publication cess training actual terrain available.” PEIS, public and by ROD on the based “Why scoping process for Army may be correct While SEIS — never answered. Trans- Hawaii?”—was unique important provides KLOA formation of the 2nd outside light terrain for a in- jungle mountainous was a reasonable alternative Hawaii unit, failed account fantry has obligated NEPA to under training Stryker that no for the fact do consider. Its failure to so renders fact, KLOA cannot KLOA. inadequate. Friends Army’s EISs See and is support Stryker vehicles unsuitable Future, 153 F.3d at Southeast’s training. Stryker ve- Stryker Brigade long, eight-wheeled, hicles 23-foot 9- are *18 Remedy E. wide, Final foot 20-ton combat vehicles. Army’s to the If were to accede 2-33, AR we
SEIS at 0051318. While by purpose its statement of and employed the SBCT assertion that actual vehicle site-selection, need, including its cannot be “may vary Stryker from the current vehi- is challenged, concept of tiered EISs system developed,” it “overall cles as the agency An avoid con- meaningless. as the could will have the same characteristics alternatives the lim- sideration of reasonable Stryker.” current Id. “Because of making binding site-specific decision Stryker, most mounted itations of the stage analysis, without programmatic or unre- places movement takes on roads deferring site-specific is- AR 0051325. consideration stricted terrain.” Id. at stage, at the to a SEIS. Then SEIS single indicates that not acre sues SEIS point back to the maneuver-acreage agenсy simply could for mount- of KLOA programmatic at the Stryker analysis-free decision Stryker training. vehicles ed here, find Army done and stage, as the has only appropriate along would be KLOA site-specific analysis be., that the its each scope brigade’s present loca- base by the PEIS. The constrained SEIS would tion. In the name of environmental “con- merely justify a operate cerns,” decision made majority require would analysis-free previous stage. at a already what has consider it rea- rejected: sonably whether it con- should result: never un moving sider units around coun- any analysis dertakes of alternatives to try for the training regardless new — Hawaii. is the cure? What We conclude delay would cause in modernizing, lack of practical remand, solution is to prohibitive combat-readiness entail requiring preparation supplemen of a possible costs—because of magic tal There is no SEIS. as which impacts “in training place” could cause. site-specific analysis. is the vehicle for EIS It been perfectly appropriate would have I respectfully purpose dissent. The for the to forgo PEIS decision as to Army’s need of the overall transformation sites, specific leaving analysis and rec brigade is to modernize its quickly units as ommendations to the SEIS. efficiently possible, as while maintain- mistake here was to commit to the trans ing combat To readiness. further formation of the 2nd in Hawaii need, reasonably considering without alternatives either decided such pro- transformation would the PEIS or the SEIS. place.” ceed “in Not only plaintiffs failed to raise any challenge
We conclude that this can be now done purpose and quick need of transformation appropriately most in a supplemental readiness, while maintaining they combat SEIS. As Army’s pre-SEIS, June 2002 have also to challenge failed “in place” indicates, meeting the failure of Army arbitrary transformation as capricious. Headquarters to explain its decision I plaintiffs find would have failed to programmatic phase requires sepa- each argue only their ground tenable for relief: rate installation to consider a broader that the improperly ruled out reloca- range of alternatives its SEIS than brigades tion of as an alternative to “in required. otherwise have been place” fact, transformation. But Therefore, we reverse and remand for sup- decision to transform units plemental analysis of alternative locations “in place” was reasonable and is entitled to in supplemental SEIS. deference. PART, IN AFFIRMED REVERSED IN PART. REMANDED. To add injury, insult majority plaintiffs would allow vehicle for
BEA, Judge, Circuit dissenting: this second guessing even though the This ease questions plaintiffs whether a court can no objections raised or “con- second-guess the Army when it decides cerns” issue alternate locations that modernizing brigade units agency proceed- *19 quickly as possible, while maintaining ings com- preceded which this action. In so readiness, bat can only place,” be done “in doing, majority the strengthen aims place mitment, 1. I quotes the word in may sensitivity because it objectivity. and None- theless, acquired special have a meaning the in purposes, con- for our to have effect in litigation. “concerns,” text of environmental litigation, objections, Where other like must litigants "objections,” have justified, by be voiced and or be lost doctrines groups seem have "concerns.” This of waiver and of exhaustion administrative imply the possess greater "concerned” a com- remedies. Army published In the no- by cutting legs out the tion. compliance NEPA in it of its intended transformation on which tices process administrative of the Today. Register and in USA stands; by mis- Federal accomplishes it this result Register Federal notice informed the I The retooling precedent. would and applying Army prepare intended to a court, public which held affirm the district Impact Environmental Programmatic to raise their “concerns” failed plaintiffs Today (PEIS)2; no- pro- thе USA administrative Statement through prescribed seeking the Army tice announced was granted not be and therefore cess should The input for PEIS. initial they public the federal arrive relief when completed of the in 2001.3 draft PEIS courts. Army published then notices the The Finally, substitutes its own majority public draft PEIS was available to Army’s as to whether judgment for the asking. again These notices were to “in a reasonable alternative there exists in Register in the Federal published not Army did transformation. place” Today. Those notices announced USA Bri- relocation 2nd consider period during which public comment already because it had gade Hawaii of submit com- public members could of all its bri- transformation determined be ments would considered before including would gades the final PEIS issued. Army have to consider place.” “in did full reasonable alternatives to transforma- notices, published it this series of Given Hawaii, including a no-action alter- met Army obligations clear its notice native, Army Army did so. The Policy under National Environmental im- adequately considered environmental § seq. of 4321 et Act U.S.C. alternatives consistent (NEPA). 1506.6(b)(2) Hawaii pacts pro- § 40 C.F.R. project. of need that for each “action with effects vides publi- notice shall include
national concern Register I and notice cation the Federal reason- organizations mail national A in the mat- ably expected to be interested ” Army pro- Army and ter.... Secretary scope; program no gram was national articulated Chief Staff scope that the transfor- bri- more “national” of transformation of vision all all Army, located over thought mation the whole into what the gade units foreign Plain- and in countries. more and dominant the states would be a effective force, clearly organiza- are “national new tiffs responsive what saw as reasonably expected to be interested strategic the na- tion” threats to different existing operat- pur- conduct its transformation 2. Consistent with PEIS's statement need, Register pose the Federal notice ing ‘in-place.’ Relocation of units forces implement will informed readers: "The Program- anticipated.” Draft not be would possible, rapidly while transformation as (Oct. Impact Statement matic Environmental warfighting continually maintaining 2001), at It also informed AR 0003714. ” operational .... forces readiness of tentatively iden- has "[t]he readers (Dec. 15, 2000). Fed.Reg, It also noted brigades ... se- tified three additional undergo aspects" of the “all [including] the 2nd quenced transformation transformation. (Light), Infantry Scho- Brigade, Division 25th *20 2-9, Barracks, AR Hawaii.” field the readers: "For 3. The draft PEIS informed future, Army expect to 0003597. the would foreseeable transformation, ing nor do they brigade notwithstanding in the national each such, Army Army’s correctly unchallenged claim be. reasoned and deci- As comply with Council sion to transform units “in place.” chose to did on Once brigade all Quality (CEQ)4 and decision transform units Army Environmental made, place” Army “in was was not regulations. It in the Federal published (as Today obligated stationing to consider alterna- Register required) and in USA tives; (as outreach) those alternatives were definition unrequired it did not unreasonable and irrelevant. The fact the they mail not plaintiffs since are a na- PEIS identifies the 2nd as an they organization, point tional concede. Interim Force brigade change does not Indeed, adequate. The notice was the ma- Every Army this conclusion. unit in the jority bring itself to cannot find otherwise. (first), (sec- either in the Initial Interim urged Although vigorously by plaintiffs to (third) ond), Objective All or Phase. even- on it ground, reverse this does not over- tually will transform from traditional bri- rule district denial summary court’s gades Stryker brigades. Whether judgment plaintiffs inadequacy Brigade was selected PEIS Maj. Op. of the notice. at 1092.5 document,
later in a different the fact re- B mains that all Army because units will be “in place” transformed timely ensure challenge Plaintiffs do ap- —even readiness, stationing peal important most determination —the alternatives need not be considered. Army case: place” in this “in trans- of аll brigade Army formation units. The plaintiffs challenged could have and analyzed impacts discussed of its Army’s place” “in decision which ruled out overall transformation in the PEIS. The alternative relocations the units. How- purpose PEIS stated the and need over- ever, the challenge would have had to all transformation was to modernize prove decision “arbitrary timely units “in the most and and capricious,” for that is the correct possible efficient manner and without com- 706; § standard review. See 5 U.S.C. promising and responsiveness.” readiness Powell, Lands Council Programmatic Final Environmental Im- (9th Cir.2005) 1026 n. (arbitrary and (Feb.2002), pact Statement AR capricious applies standard to claims of end, 0003865. To that the PEIS deter- NEPA). inadequate analysis under They mined expect that “the to did not challenge; they so do not even conduct its existing transformation of op- now. This is principal why reason erating forces ‘in place.’ Relocation of appeal without merit. Plaintiffs’ argu- units anticipated.” would not be Id. at 4- ment that the had to consider relo- AR quarrel (and 0004000. Plaintiffs do not cation of the 2nd ignores fails this; rather, with they aim to have challenge) elephant in the living requirement the court create a room: already determined Army analyze alternate need, locations for train- to achieve CEQ 4. The sits Maj within Office Op. merely Executive cation. at 1092 n. 4. This composed President three mem- emphasize comply serves to did appointed by bers the President to serve at his legal requirements; just didn’t do so in pleasure, by and with the advice and consent way pleases judiciary those in the who § of the Senate. 42 U.S.C. would be its editors. 5. Albeit not without a "tsk-tsk" footnote coun- seling it was not "wise” in its notifi-
1105 units, Army the where the shells fall including the ence to all of transformation (need). Hawaii, deny if be accom- But what is to would enemy Bay (purpose) San Francisco place.” “in the plished it, high ground bordering the fortifying C can down rake with cannon that shoot to ships Bay, enemy the be the 1 made the Army the is not to consider рroperly chal- plaintiffs Even if of the cannon on the placing alternative Army’s place” “in transforma- lenged the flat, grow all to save some trees units, I find Army would the tion of all Army can made the hills’ rim. Nor choosing it Army’s judgment of exercise spare they way if in the of get trees any Like arbitrary capricious. not was quickly. Army moving the cannon must com- agency, Army other federal require capability shoot down would NEPA; just not exempt it is ply with (need). cannon movement its security. national guards it our because Army spells purpose out its When And, agencies, NEPA as with other federal can project, and need this court groups not environmentalist does mandate not to job. What review its decision consider alterna- Army tell the how to do its tive locations less harmful to environ- procedures tells the is what NEPA suggested alternatives only ment when the analyze must it follow reasonable, Powell, purpose and given F.3d at 1026-27. are 395 issues. See That is, Army’s project. review need of That NEPA mandates how issues; question whether deciding not is limited go about these should arbitrarily capriciously— acted as to of them. should decide what is, unreasonably failing consid- Finally, must be reason- procedures —in 706; § circumstances, 5 Pow- er the alternatives. U.S.C. within the able ell, Here, “in project. 395 F.3d n. agency’s need of the purpose and not place” v. transformation was unreason- Southeast’s Future Mor- See Friends of (9th Cir.1998) rison, purpose able in view the need (“When project] transformation: relocation was [of possibility as reasonable be- it makes no sense to ruled out accomplish thing, one ways by Army’s purpose need alternative which cause consider the Stryker Brigades its might (quoting transform units thing another be achieved.” Hodel, quickly possible must while F.2d be done as City Angoon (9th omitted)). Cir.1986)) case maintaining combat-readiness. This (emphasis cannon on the is like the location sequence strategic decisions Given hill, artillery range. its transform not the selection Army, decision to “arbitrary, capri- “in not place” units discretion,
cious, an or otherwise abuse with law.” 5 U.S.C. accordance noted, “in As decision to transform § 706. pur- stated place” was within upgrading units up pose and need of Suppose wanted to set maintaining readiness. artillery (purpose) quickly at one of while firing range units un- has stated all will being equal, All else several locations. the next thir- dergo within at which location the Army should consider years. The consideration alternate damage ty to the flora will do the least shells require locations for transformation It does not make much differ- and fauna. *22 Ah, which taking places years into account all to but the 175 would be cut to thirty, if Camp designat six such Xs were brigades each be of the could transferred But, ed. how one maintain would combat- Conceivably, training. Army for readiness for six brigades itinerant relocating brigade could consider each to which, Flying like the soul of the Dutch But, would another base. be fatuous to man, to years would have move each 2.5 to merely for relocating consider units brigades being bases of sent to the them. relocating exercise of That would Xs, Camp six and never reach their origi game a simply bureaucratic of “musical be nal homes until the program? end of the chairs.” Charged “purpose with the and need” of given If be alter- consideration is to to transforming quickly maintaining com training, nate for must bat-readiness, locations there be saywe “arbitrary can it was training capricious” can and some bases where determine brigade that each should transform “in place danger take with less of environmen- place,” is, that at its own home base? The tal than is harm there to other bases. Army chose to foreclose a more circuitous Indeed, a there be base so bereft of PEIS, route to transformation in the flora, archeological fauna and that troves decision is entitled to deference. Pre little harm could be done there 20-ton paring an “necessarily EIS calls for judg vehicles, Stryker sophisti- no matter how ment, judgment agency’s.” аnd that is investigative techniques cated the used Westlands Dist. Water v. United States such groups plaintiffs. as Interior, Dept. Camp Call majority such a location X. The (9th Cir.2004) (internal quotation marks Site-Specific would have each of the Envi- omitted). (SEISs) Impact ronmental Statements deny This is not to Army may that the each brigades “consider” relocation during relocate forces its transformation. If Camp any- X. is “consider” to be decided to relocate the 2nd thing more than a doff the hat to envi- Cavalry Armored Regiment from Fort groups, any ronmental reasonable adminis- Polk, Lewis, Louisiana, to Fort Washing- actually obligated trator will be to decide ton, so that a Combat Team could that brigade each should be transformed created at Fort Polk. How can this at Base X. The result is that each lawful agency power exercise of translate seventy brigade-sized units would be a requirement into must transformed, time, Camp one at a X. consider relocation of all units or reloca- Equipping Stryker and transforming a Brigade? tion A particular years, Combat Team takes two relocation to conform to appli- plus period an additional Final reach requirements, including cable perhaps Operational Capability. Suppose the total requirements, NEPA but those are not at time to achieve transformation of bri- issue here. The decision to relocate a gade years: two and half that com- particular regiment has bearing no putes years to 175 achieve the overall requirements NEPA involving transformation the needs done overall transformation. The relocation of thirty. years, In 175 perhaps even the regiment one does not render relocation of Stryker by technology will be surpassed regiments feasible, other reasonable and be military considered as effective particularly where the has cited the artifact now the rowboat used to strategic importance of the Pacific Rim. ferry Washington General to Trenton. Nor dо estop individual relocations alternative loca- imagined be reasonable stating large-scale reloca- Army from plaintiffs argue If tions. wanted of the transforma- scope outside *23 given had not sufficient consid- process. tion during to units eration the relocation of transformation, II they were told the no- they challenge could tices where and when notice, see adequacy of From the the most judgment rapid that IA, must conclude that one supra Part possible, maintaining while notice that plaintiffs because the combat-readiness, requires the transfor- including the 2nd —would units — i.e., training place,” “in mation its to place” yet “in failed transformed be brigade’s home base. each comment, complain to opportunity take “concerns,” plaintiffs should any or voice Act re- The Administrative Procedure ac- present bringing barred from be plaintiffs to exhaust remedies be- quires plaintiffs that section concludes tion. This 5 bringing fore suit federal court. challenges to transfor- any waived § 704. “The the ex- U.S.C. they to com- in Hawaii when failed mation the adminis- haustion doctrine is allow EISs, which did not on the ment its agency question to exercise trative “so that were obvious” any contain errors subject matter expertise over can failure to comment plaintiffs’ that opportunity an to cor- permit agency excused. that have occurred mistakes rect avoiding un- during proceeding, thus
A judicial necessary premature or interven- process.” into administrative to the or Anyone had written who Winston, F.2d Daly-Murphy v. 820 Army webpage provid- navigated to the (internal (9th Cir.1987) quotation 1476 notices would have received ed in (district omitted) court did Anyone had marks copy of draft PEIS. who Veterans requiring its draft would have abuse discretion then read the PEIS (VA) hospital doctor Administration Army intended to transform learned the through claims wrongful suspension reading raise place.” its “in Someone all forces and other prescribed peer review something the VA’s would have seen the draft PEIS proсe- procedures because in Hawaii had been administrative the 2nd else: inefficacious, inadequate, dures were not participate selected to tentatively void, transformation, futile, harmful, injury was not or Interim Phase suspension was with irreparable ear- because it transform itself which meant Madigan, 503 McCarthy v. Army brigades. pay); see also than other 60-odd lier available, 140, 145, 117 L.Ed.2d 112 S.Ct. EIS makes an agency After (1992) (“[T]he doctrine rec- exhaustion Agency pub- 291 the Environmental Protection notion, in deference grounded Availability begins ognizes lishes Notice authority to co- Congress’ delegation ac- agency must during which the period Government, branches of public regarding from ordinate cept comments courts, ought to have Here, plain- agencies, § not the 1506.10. the EIS. 40 C.F.R. programs for the they responsibility days during primary which had at least tiffs charged them admin- Congress has complaints, or make their comments could ac- also “concerns,” ... The exhaustion doctrine about the ister. voice their notion knowledges the commonsense op- in Hawaii as Brigade’s transformation ought to agency resolution that an locations, dispute plaintiffs which other posed opportunity to correct its its Appeal have an own Board affirmed. programs with respect
mistakes
CEQ
S.Ct. 1197. After the
promulgated
it is
into
administers before
haled
federal
new regulations requiring
EISs
consid-
court.”);
Smith,
Ruviwat
“energy
alternatives,
er
conservation”
Sag-
(“[T]he
(9th Cir.1983)
requirement
clarify
inaw moved to
AEC
judicial
exhaustion of remedies will aid
re-
ruling
reopen
proceedings
pow-
by allowing
appropriate
develop-
view
plants.
declined,
er
Id. The Commission
expert
ment of a factual record in an
fo-
it had
noting
willing
been
to take evidence
*24
rum; conserve the court’s time because of on Saginaw’s
Saginaw
contentions but that
possibility
applied
that the relief
present any
had failed to
had
and
shown
level;
granted at the
administrative
disregard
“total
pro-
of even those minimal
and
agеncy
allow the administrative
cedural
necessary
give
formalities
opportunity
occurring
correct errors
in
exactly
Board
idea
some
what was at
proceed-
course
administrative
533-34,
issue.” Id. at
98
1197.
S.Ct.
The
Ventura,
ings.”);
v.
I.N.S. Orlando
537
cf.
responsi-
Commission noted that it had a
17,
12,
353,
123 S.Ct.
propriate
Robertson,
v.
943 F.2d
Havasupai
Tribe
policy
...
choices.”
to make
Government
(9th Cir.1991)
curiam).
(per
Hava-
U.S.A.,
Natural Res.
Inc. v.
Chevron
Def.
Tribe, supai
approved
Forest Service
Council, Inc.,
837, 865, 104 S.Ct.
467 U.S.
mine
plan
operations
for uranium
(1984).
2778,
trolled,
failure to
plaintiffs’
participate
B
The plaintiffs’
should not be excused.
claim that the
should have consid-
holds, I
opinion
further
think
ered relocation of the 2nd
error,
the Army’s
EIS contained flaws
reasonable alternative in its EISs is a
“so
were
obvious that there is no need
“specific
regarding
factual contention
for a
point
spe
commentator to
them out
EIS,”
content of an
substantive
therefore
cifically in order
preserve
ability
timely
requiring
participation, and not a
challenge
Maj.
action.” See
“procedural
plain-
violation” under which a
Citizen,
Op.
(quoting
at 1092
Public
participate
tiffs
failure
adminis-
2204).
765, 124
Supreme
S.Ct.
process might
trative
be excused. Bonne-
dicta,
penned
language, clearly
Court
Power,
all,
ville
fy any evidence
shows
sig-
would be
these
actions
possible
from
Ill
noticeable,
nificant,
air-quality
or even
Combat and conditions most to be encoun- SEIS”), 1-4, Rim, troops nal AR 0051275. The need tered the Pacific and because team stationed in Hawaii provide as: “to the nation with stated readily deployed from and airbases sea- capabilities evolving that meet current and ports of size. I nothing suitable find un- national requirements.” defense pur- reasonable the SEIS’s statement Army’s purpose need statement of and pose and need.11 need, reasonable. Under this analyzed a number the SEIS of alterna- majority quarrels with the SEIS’s Hawaii, full tives to transformation in why statement of reasons Hawaii se- which alternatives would sub- transformation, Maj. lected for Op. see stantially impacts similar environmental we but should defer Brigade, relocation the 2nd plaintiffs as judgment matters such as de- urge should have been considered. These ployment training terrain and condi- training alternatives Bri- include the 2nd tions, which are fact-bound and technical mainland, gade and a no-action and, therefore, matters within the alternative, under which the 2nd discretion. See Marsh v. Oregon Natural Stryker be transformed into a Council, 377, Res. U.S. S.Ct. brigade. (1989) (agency L.Ed.2d dispute
entitled to deference when a cen- ters on fact-bound within matters A agenсy’s expertise). Moreover, major- agencies “Courts have afforded consid- ity’s unpersuasive. are contentions erable discretion to the purpose define and majority rejects the SEIS’s statement that project.” need of a Water Westlands maintaining presence in the Pacific Rim (internal Dist., F.3d at 866 quotation justified stationing a Stryker Brigade omitted). pur- marks The SEIS states (SBCT) Hawaii, by Combat Team aston- pose ,is to assist in making the Interim ishingly concluding “[njothing in the rec- operational Force to provide realistic distinguishes ord Hawaii from Alaska or training in field purposes Hawaii. These Washington.” Maj. fact, Op. at 1100. directly respectively follow from the the record deployment shows that times PEIS’s lawful decisions that 2nd Bri- from Hawaii to areas South Asia are gade part would transform as Inter- deployment shorter than times from im Force10 and that transformation of bri- Washington. Army Headquarters, gades would be “in place.” The SEIS’s Stryker Brigade Combat Team Primer statement need adds that 2nd Bri- 2003) (Aug. at AR 0006213. Addi- gade was chosen because the Pacific Rim tionally, deployment times from Hawaii to ais critical area of interest for the United the South Pacific are deploy- shorter than States, provides because Hawaii terrain and, ment times Washington from plaintiffs argue Stryker To the extent the decision vehicles or other transformation ac- phases. tivities will be different in different part transform Force, later, Interim rather than suffi- lacked Nor, below, explain agree as I do I alternatives, analysis cient of reasonable I dis- majority that the decision to transform in transformed, agree. brigades All will be prior Hawaii was settled to creation of the Force, brigade some has to be in the Interim Maj. Op. SEIS. at 1097. The SEIS consid- *30 just brigades two as were in the alternatives, Initial Phase. range including ered of a no- Nothing in the record shows the exercises of action alternative that would have abandoned alternative. The mainland Id. The no-action Alaska well. margin, small training provided not alternative would have does majority also contends SEIS its Brigade weapons the 2nd for statement of need because its own support (KLOA) transported to one of the material Training on Area the Kawailoa sites, located in Alas- three other SBCT Stryker vehicles ex- support cannot Oahu Louisiana, ka, for train- Washington, and argument is on Drum Road. This cept ing. option, Under this would under deferential easily dispatched our 23,000 acquire plot acre of not need to review, nothing is of there standard complexes land and battle area build Army wanting unreasonable about in is other facilities Hawaii. The record on Drum Stryker vehicle exercises have moving training clear that live-fire exercises troop Road coordinated with engaging not in construc- mainland and jungle setting mountainous nearby significant” lessen the “most An decisions cannot agency’s the KLOA. impacts on Hawaii of environmental “simply under NEPA because be nullified transformation.12 Final SEIS 4-69-4- the result unhappy with the court option AR This 0051516-0051519. Yankee, 435 U.S. reached.” Vermont rejected impracti- as unfeasible and 558, 98 S.Ct. inefficiency due to the cost and of cal B moving equipment the soldiers Hawaii, from and the strain it would possibility explored SEIS sites. Id. at place on the mainland and nonlive-fire train- live-fire maneuver NEPA does AR 0051337. not mandate continental instead ing particular. substantive outcome Hawaii, significant doubt on casts which Powell, 395 at 1026-27. Al- F.3d See Army sepa- plaintiffs’ claim ultimately though unnecessary, because relocation of rately to consider needed all units to transform determination re- Brigade. agency An not the 2nd consideration of place,” “in analysis “separate undertake a quired to training of Hawaii shows evalu- outside significantly are alternatives which not substantially similar an option ated actually alternatives distinguishable from consequences as full relocation. considered, substantially or which have consequences.” Westlands Water similar have not to could decided Dist., N. (citing F.3d at 868 Plains Brigade 2nd in Hawaii transform the 661, 666 Lujan, alternative, Res. Council which selecting no-action Cir.1989) (9th that, (holding because substantially similar would have had also fee sub- exchange of coal interests had full consequences as reloca- consequences to coal stantially majority similar is correct tion. The alternative, leasing, require separate no-action NEPA did considered the SEIS Here, exchange)). analysis it is incorrect this alternative but is that “involved transformation crucial factor environmental would have Maj. Op. relocating Brigade Brigade 2nd in Hawaii on Oahu.” impacts of 2nd the no-action alterna- substantially similar to at 1095. been Selection would have caused 2nd tive would have training alternative and the mainland developed supra Part IIB of plan benefits. As to transform dissent, identify plaintiffs fail to evi- Hawaii. showing that relocation or selection dence brigade training transformation would say a different 12. This not that mainland environmental benefits. would have environmental obvious even relocation *31 Stryker be into a brigade not to transformed bri- the would not transform into a gade. The stated the no-action al- Stryker brigade. SEIS option Because this had meet purpose ternative would not substantially similar environmental conse- 2nd transforming Brigade, need for relocation, quences Army as full did Decision, SEIS Record of separately not also have to consider reloca- Army moving determined forward tion of the 2nd Brigade.13 with transformation Hawaii “reflect[ed] Complete restationing of the 2nd Bri factors, among a proper competing balance would, course, gade out of Hawaii notably statutory impera- most mission consequences options that none of the tives, impacts, technical would, namely, discussed heretofore considerations, practicable and all means operate 2nd would not continue that will avoid or minimize environmental Hawaii, an either as SBCT or otherwise. Decision, harm.” Record of Transforma- To the extent rеlocation of the 2nd Bri Brigade, Infantry 25th gade urged as a reasonable alternative (Light) Stryker to a Division basis, on completely it is outside the 2004), Combat Team in Hawaii (July at transformation, scope Army and the lawful, AR 0048483. was entirely This Army did not have to it. consider See the fact the its purpose SEIS stated was to Dist., Westlands 866; Water 376 F.3d at provide realistic field training Hawaii (“[I]t see also id. at 871 would turn NEPA change does not this conclusion. We have interpret head the statute to agency held before that an not act “[does] require that agency] in-depth [an conduct unreasonably rejecting no-action al- [a] analyses of ... alternatives that are incon ground ternative on the that it would not sistent [agency’s] objec with the policy purpose meet the of the pro- need (alterations in tives.” original) (quoting Morrison, posed project.” 153 F.3d at Veneman, Kootenai Tribe v. project] “[W]hen the a [of (9th 1094, 1122 Cir.2002))).14 accomplish is to thing, one it makes no consideration of these alter sense to ways by consider alternative natives establishes looked thing which might another be achieved.” 1021). reasonable alternatives to transforma (quoting Angoon, 803 F.2d at Hawaii, tion in alternative, given the conclusion Under the no-action would continue to train in Hawaii could determine that as it transfor does, currently resulting and the mation of all “in impacts place.” units would be significant” would “less than because Once the place” constraint15 “in trans explored 13. The SEIS also grant summary judgment transformation of be to reverse the brigade yet different at another and remand to the district court. Additional- location— option substantially another ly, majority similar con- if mean to reverse denial sequences plaintiffs’ full relocation. summary deter- judg- motion for ment, mined this was not say viable alternative: it should entry so and remand favor, judgment plaintiffs’ ''[BJecause Pacific Rim is a critical area of permanently en- States,” stationing for the joining interest United project. an always can in Hawaii rap- SBCT "allows President to pro- commence a new Notice-PEIS-SEIS idly respond to in an increasing ceeding events area of rather take than its chances on the importance security.” to national Final proceeding SEIS truncated devised the remand. AR 0051332. quite recognized 15.A accurately constraint puzzled why majority I am also as to attorney felicitously an and indeed preparation supplemental orders of a reproduced throughout Opinion. EIS. Majority appeal As grant this case is Maj. Op. from pp. See 1097-1098 n. summary judgment, proper remedy (noting Army’s purpose and 1099 *32 Hawaii, I affirm the formation in upon quite prop was decided formation — the district court. PEIS, judgment could consid the SEIS erly the—in transforming not only alternatives er as all, taking meas various Hawaii at or impact of transforma mitigate
ures
tion, usage land such as reduced elsewhere. conducting training
through transforming Not did both.
The SEIS in favor of trans rejected was
formation, decided better which the America, UNITED STATES with mis impacts balanced environmental Plaintiff-Appellee, to maintain imperatives and the need sion respond quickly to events ability to through main Mitigation Pacific Rim. less envi training would have meant land NICHOLS, Wesley Kevin Defendant- Hawaii, plan impact to but ronmental Appellant. impractical rejected as unfeasible and was No. 05-30503. re significant transportation
due requires NEPA no entailed. quirements Appeals, United States Court Yankee, 435 U.S. more. See Vermont Ninth Circuit. (“NEPA set forth does S.Ct. Na goals for the significant substantive Argued July and Submitted tion, agencies is but its mandate to the essentially procedural.”). Filed Oct. opinion majority places position as aims modern-
an awkward brigades future
ize all its units. As within jurisdiction are direct-
the Ninth Circuit’s by Army to transform Headquarters
ed
SBCTs, Army analyze relocation must project brigade each for a nationwide the start to entail
that was deemed from so, If “in
only place” transformation? majority legal opinion basis? The
what supply impor- not to these
does answer Army’s questions. deci-
tant Because the “in place” units
sion transform
arbitrary because the capricious, challenges to the
plaintiffs waived their SEIS, and because the to full trans- evaluated alternatives
SEIS transformation because tightly that alternate locations for statements were "crafted so need ourselves”). determination, restricting we “Restrict- of course. place” "in considering ing what? From ourselves” from