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Hudson River Sloop Clearwater Inc. v. Department of Navy

decided: December 5, 1989.

HUDSON RIVER SLOOP CLEARWATER, INC., THE SIERRA CLUB, INC., FRIENDS OF THE EARTH, INC., AMERICAN LITTORAL SOCIETY, INC., PHYSICIANS FOR SOCIAL RESPONSIBILITY/NYC, INC., NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., NEW YORK LAWYERS ALLIANCE FOR NUCLEAR ARMS CONTROL, MIRIAM FRIEDLANDER, MEMBER OF THE NEW YORK CITY COUNCIL, RUTH W. MESSINGER, MEMBER OF THE NEW YORK CITY COUNCIL, CAROL GREITZER, MEMBER OF THE NEW YORK CITY COUNCIL, JULIA HARRISON, MEMBER OF THE NEW YORK CITY COUNCIL, ARTHUR KATZMAN, MEMBER OF THE NEW YORK CITY COUNCIL, CAROLYN B. MALONEY, MEMBER OF THE NEW YORK CITY COUNCIL, STANLEY E. MICHELS, MEMBER OF THE NEW YORK CITY COUNCIL, DR. E. THOMAS HENKEL, ROBERT MCANDREW, AND JOHN WORLOCK, PLAINTIFFS-APPELLANTS,
v.
DEPARTMENT OF THE NAVY, WILLIAM L. BALL, III, AS SECRETARY OF THE DEPARTMENT OF THE NAVY, EVERETTE PYATT, AS ASSISTANT SECRETARY OF THE DEPARTMENT OF THE NAVY, ADMIRAL CARISELE A.H. TROST, AS CHIEF OF NAVAL OPERATIONS, DEPARTMENT OF DEFENSE, FRANK CARLUCCI, AS SECRETARY OF THE DEPARTMENT OF DEFENSE AND JACK KATZEN, AS ASSISTANT SECRETARY OF THE DEPARTMENT OF DEFENSE, DEFENDANTS-APPELLEES



Hudson River Sloop Clearwater, Inc., The Sierra Club, Inc., et al. appeal from two judgments of the United States District Court for the Eastern District of New York (Sifton, J.) entered on April 28, 1987 and May 1, 1989, respectively. The April 28 judgment granted partial summary judgment in favor of appellee, Department of the Navy over appellants' claim that the Navy violated the National Environmental Policy Act, 42 U.S.C. § 4321 (NEPA), by failing to publicly disclose the environmental impacts of its alleged proposal to deploy nuclear weapons on ships based at the proposed Navy Homeport in New York Harbor. The district court's judgment of May 1, 1989 dismissed, for lack of subject matter jurisdiction, appellants' claim that the Navy violated NEPA by failing to integrate into its internal, non-public decisionmaking process the environmental impacts of classified aspects of the Homeport proposal. Appellees cross-appeal asserting a lack of subject matter jurisdiction to hear the appeal certified as final under Fed.R.Civ.P. 54(b).

Cardamone and Mahoney, Circuit Judges and Pollack, District Judge.*fn*

Author: Cardamone

CARDAMONE, Circuit Judge:

With visions of the tragic consequences that eventuated in December 1941 when an entire naval fleet congregated in one harbor, the Navy has since emphasized dispersal. In 1982 it adopted the Strategic Homeport Concept that effectively divides the U.S. fleet into smaller action groups and places them in ports and harbors scattered geographically. The hope is that this approach will improve the Navy's ability to respond and decrease its vulnerability. Whether or not the action group harbored at Staten Island, New York carries nuclear weapons is the gnawing question that prompted this lawsuit.

BACKGROUND

Appellants -- Hudson River Sloop Clearwater, Inc., the Sierra Club, Inc., Friends of the Earth, Inc., et al. -- are a coalition of environmental and arms control groups, seven members of the New York City Council, and individual homeowners (collectively plaintiffs or appellants) who live in the area surrounding the site of the U.S. Navy's proposed New York Harbor Homeport. Appellees are the U.S. Department of the Navy, U.S. Department of Defense, the Secretaries of the Navy and Defense and other high ranking officials with those Departments (collectively Navy or appellees).

On July 29, 1983 the Navy announced that it had chosen the Stapleton-Fort Wadsworth Complex in Staten Island, New York as its preferred site for the new homeport for an American battleship, the U.S.S. Iowa, and its accompanying six ship surface action group that includes an aircraft carrier, three destroyers and two frigates. Some of the ships to be berthed at the Staten Island Homeport are capable of carrying nuclear weapons. The Navy issued a Draft Environmental Impact Statement (DEIS) for the Homeport plan in October 1984 and, after permitting the required public comment period, issued its Final Environmental Impact Statement (FEIS) on February 1, 1985.

Most of the public comments received expressed serious concerns regarding the risks attendant upon the deployment of U.S. Navy warships armed with nuclear weapons in New York City's harbor, of which Staten Island is a part. Neither the DEIS nor the FEIS discussed nuclear weapons or the environmental impact of deploying them at the Homeport, except to state that national security interests preclude the Navy from confirming or denying the presence of nuclear weapons aboard any particular U.S. Navy ship. See Chief of Naval Operations (OPNAV) Instructions (s)5513.9B, 5721.1D (27 July 1984). The effect of these instructions, the Navy asserts, is to deny any potential enemy important information regarding American weapons and their location, and similarly to deny information to a potential saboteur who may intend to destroy, incapacitate or capture such weapons.

On March 14, 1985 the Navy issued a Record of Decision announcing its intention to proceed with the Homeport project as set forth in the FEIS. On December 27, 1985 it issued a supplemental FEIS addressing the decision to construct housing facilities for Homeport personnel. Its supplemental FEIS was released on March 21, 1986 and a final decision regarding the construction and operation of the Homeport issued on August 20, 1986. Six weeks later -- on October 3, 1986 -- appellants commenced the instant litigation in the United States District Court for the Eastern District of New York (Sifton, J.).

The major allegations in the complaint relate to the decision to proceed with the construction and operation of the Homeport. Plaintiffs assert that the Navy did not comply with either the Fish and Wildlife Coordination Act, 16 U.S.C. § 662(b), or with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321. Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), requires federal agencies to consider the environmental impact of proposals for legislation and other major federal actions. The NEPA claims allege that the Navy failed to consider adequately: (i) the effects of the construction of the Homeport on archaeologically sensitive areas, (ii) the effects of construction on historic properties, (iii) a safety zone between conventional weapons and populated areas, (iv) the effects of the storage and transportation of conventional explosives, and that it had failed to comply with NEPA's public disclosure requirement in its FEIS by failing to discuss the environmental impact of stationing nuclear weapons at the Homeport. This last claim (the "public disclosure" claim) is one of the two NEPA claims before us.

On April 28, 1987 Judge Sifton granted the Navy's motion for partial summary judgment on the public disclosure claim. Hudson River Sloop Clearwater, Inc. v. Department of Navy, 659 F. Supp. 674, 687 (E.D.N.Y. 1987). On September 23, 1988 the district court granted appellants' motion for leave to file a supplemental amended complaint alleging that the Navy failed to comply with NEPA -- independently of its public disclosure requirements -- when it allegedly neglected to integrate environmental concerns respecting the presence of nuclear weapons into its internal, non-public decisionmaking process. This "internal decision" claim is the second NEPA claim raised on this appeal. In an order dated May 1, 1989, the district court dismissed the internal decision cause of action for lack of subject matter jurisdiction, holding that the 'national security doctrine," Totten v. United States, 92 U.S. 105, 23 L. Ed. 605 (1875), barred plaintiffs from bringing an action on that claim in federal court. Memorandum and Order at 12-13, Hudson River Sloop Clearwater, Inc., et al. v. Department of Navy, No. 86-3292 (E.D.N.Y. May 4, 1989).

On May 25, 1989, Judge Sifton then entered judgment on both the public disclosure and internal decision claims, certifying them under Fed.R.Civ.P. 54(b) as final for purposes of appeal. Memorandum and Order at 2-3, Hudson River Sloop Clearwater, Inc., et al. v. Department of Navy, No. 86-3292 (E.D.N.Y. May 25, 1989). This appeal and cross-appeal followed. We affirm.

Discussion

I. Rule 54(b) Certification

Before analyzing the merits of the public disclosure and internal decision claims raised by appellants, we first consider appellees' challenge to our subject matter jurisdiction to entertain this appeal. Because the district court certified its judgment as final under Fed.R.Civ.P. 54(b), we begin discussion there.

Rule 54(b) permits the district court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Id. Appellees urge that the decision to grant Rule 54(b) certification was deficient on three grounds: (1) that the claims on appeal are not distinct and separate claims from those that remain to be litigated in the district court; (2) that appellants face no threat of hardship or injustice that would be caused by ...


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