strenuously disagree, arguing that NEPA does not require an EIS or an EA because the Army properly determined that the SEAD reductions would not have significant environmental consequences.
Because I have decided that plaintiffs have demonstrated a likelihood of success on the merits on their claim under BRAC, I need not address their NEPA claim at this time. BRAC expressly provides that "the provisions of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to the actions of the President, the Commission, and, except as provided in paragraph (2), the Department of Defense in carrying out this part." BRAC § 2905(c)(1). Consequently, to the extent that defendants are prohibited from acting without going through BRAC, plaintiffs' claim that defendants have also failed to comply with NEPA is premature.
Because plaintiffs have demonstrated the threat of irreparable harm and a likelihood of success on the merits, their motion for preliminary injunctive relief under Fed.R.Civ.P. 65 is granted. I have considered the competing interests of the parties and I decline to require plaintiffs to post a bond. In addition, because of the nature of this action, the Court will hear all dispositive motions and set a trial date on an expedited basis.
Therefore, based on this decision:
IT IS HEREBY ORDERED that plaintiffs' motion for a preliminary injunction is granted and that pending the conclusion of this action or until further order of the Court, defendants are enjoined as follows:
(1) Defendants, and their agents, servants, officers, and employees, and those persons in active concert or participation with them, are ordered to cease any further action to implement the plan to realign, restructure, eliminate or reduce functions or missions at the Seneca Army Depot as approved on July 2, 1992 by the Secretary of the Army when he approved the AR 5-10 report concerning the Depot; and
(2) Defendants are enjoined from directly or indirectly discharging, requiring the retirement of, or reassigning any civilian personnel authorized to be employed at Seneca Army Depot as of July 1, 1992, or from taking any steps and spending any money to reduce the number of civilian personnel positions authorized at Seneca Army Depot to an amount below the number authorized by the Department of Defense as of July 1, 1992.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
November 9, 1992