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DON'T RUIN OUR PARK v. STONE

September 9, 1992

DON'T RUIN OUR PARK, et al., Plaintiffs
v.
MICHAEL P. W. STONE et al., Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

MEMORANDUM

 September 9, 1992

 BACKGROUND

 This is an action under the National Environmental Policy Act of 1969, as amended, ("NEPA"), 42 U.S.C. §§ 4321 to 4347, *fn1" challenging the defendants' decision to allow the Pennsylvania Army National Guard Aviation Support Facility and Company G, 104th Aviation ("104th Aviation") *fn2" to relocate its training base to the Mid-State Airport ("Mid-State") near Phillipsburg, Pennsylvania. Mid-State is bounded on all sides by Pennsylvania state forest and game commission lands. Located within the state forest is a state park, the Black Moshannon State Park ("Black Moshannon").

 The plaintiffs are five conservation associations: Don't Ruin Our Park, the Pennsylvania Federation of Sportsmen's Clubs, the Pennsylvania Environmental Defense Foundation and the Sierra Club (hereafter collectively referred to as "DROP") *fn3" who take exception to the decision permitting the relocation, claiming that it was based on an inadequate assessment of the potential environmental impact of the operation of the 104th Aviation at that site. Plaintiffs claim that the Environmental Assessment ("EA") performed to justify the move is inadequate and that a more in-depth Environmental Impact statement ("EIS") is required to explore fully the potential for environmental harm. Named as defendants are the following government officials involved in the decision-making process: Michael P.W. Stone, Secretary of the Army; John B. Conaway, Chief of the National Guard Bureau ("NGB"); *fn4" William A. Navas, Deputy Director of the Army National Guard; and Gerald T. Sajer, Adjutant General of the Pennsylvania National Guard. *fn5"

 The 104th Aviation is a helicopter company with an authorized strength of sixteen CH-47C ("Chinook") helicopters, one UH-1H ("Huey") helicopter and 201 personnel. The unit is supported by an Army Aviation Support Facility ("AASF") which is responsible for aircraft maintenance and for training personnel in aircraft maintenance and helicopter flight procedures. Eleven CH-47C helicopters, one UH-1H helicopter, and 163 personnel are currently assigned to the unit. (Record Document No. 62, Federal Defendants' Statement of Undisputed Facts, para. 5.)

 From 1985 to 1990, the 104th Aviation was stationed at the Wilkes-Barrel Scranton International Airport ("WBSI Airport"). *fn6" In 1987, a Site Evaluation Team was formed to search for a new location in eastern Pennsylvania. Timothy Leininger, an "Environmental Specialist" at the Pennsylvania Department of Military Affairs ("DMA"), was appointed to the search team. After considering and eliminating a number of potential sites, for various reasons, the team settled on Mid-State and began efforts to effectuate the relocation. (Record Document No. 62, Federal Defendants' Statement of Undisputed Facts, paras 7 and 8. and AR-3; *fn7" AR-14 and AR-15.)

 On June 21, 1988, the 1st DEA was withdrawn from consideration by Frank Audino, Director of Facilities, Pennsylvania DMA. Leininger left the employ of the DMA shortly thereafter, and was replaced on the Evaluation Team by LTC Gregory Parrish who had been appointed an acting DMA Environmental Specialist on July 26, 1988.

 A second draft ("2nd DEA"), signed by Parrish, was issued a month after withdrawal of the first. The 2nd DEA contained a different set of conclusions than the first. It found that the proposed move to Mid-State would have no significant impact on the environment (referred to as a "finding of no significant impact or a "FONSI") and concluded that no further study of the potential environmental consequences of the move was warranted.

 The 2nd DEA was circulated for comment by the participating agencies. Suggestions and comments received were incorporated in the draft, and on September 23, 1988, the 2nd DEA, as revised, was distributed for public comment. A public hearing on the 2nd DEA was held October 6, 1988 in Philipsburg. The 2nd DEA was further revised to reflect comments received during the public comment period. On December 5, 1988, General Sajer signed the 2nd DEA/FONSI, as revised, and it was then forwarded to the National Guard Bureau ("NGB") for comment and review.

 In a Memorandum of Understanding (MOU) dated March 3, 1989, *fn8" the Pennsylvania Department of Environmental Resources (PaDER) agreed to transfer jurisdiction and control over 40 acres of land adjacent to Mid-State to DMA for use by the 104th Aviation.

 After a second round of public comment periods, hearings and further revisions, the final EA FONSI was approved by Brigadier General Navas of the NGB on December 11, 1989, paving the way for the 104th Aviation's move to Mid-State.

 Defendants state that the 104th Aviation began moving equipment and personnel to Mid-State the following month. *fn9" By March, 1990, the move was substantially completed, and full-scale flight training operations were in progress. By mid-June, 1990, all personnel and equipment were at Mid-State, and the 104th Aviation's lease at WBSI had been canceled.

 Plaintiffs filed this action June 11, 1990, challenging the adequacy of the EA/FONSI. They allege that defendants acted in an arbitrary and capricious manner in deciding that an EIS is not necessary by (1) failing to comply with federal regulations which require preparation of an EIS; (2) violating Pennsylvania statutory law governing the preservation of Black Moshannon State Park, 74 Pa. Cons. Stat. Ann. § 5905; (3) creating a "chaotic" environmental process by issuing "contradictory Environmental Assessments requiring and not requiring" an EIS; (4) ignoring peak noise levels, meteorological effects, alternative technologies for noise evaluation and the special impact of helicopter noise in their evaluation of the noise impact of the facility; (5) ignoring "significant public controversy" associated with the planned move; (6) ignoring "severe cumulative and secondary impacts" of the planned move; and (7) ignoring the impacts of the construction and enlargement of access roads to the facility and related industrial development. (Plaintiffs' complaint, pp. 21-22)

 Before the court are: (1) a motion to dismiss, or in the alternative, for summary judgment by the federal defendants (Record Document No. 62); (2) a motion for summary judgment by the Commonwealth defendants (Record Document No. 66); and (3) a motion for summary judgment by plaintiffs (Record Document No. 93). We will dispose of the federal defendants' motion on summary judgment grounds. For the reasons discussed below, defendants' motions for summary judgment will be granted, and plaintiffs' motion will be denied.

 DISCUSSION

 Mootness

 Defendants argue that this action should be dismissed as moot because the 104th Aviation's move to Mid-State has been completed and flight operations have begun. Although temporary facilities have been constructed, permanent facilities have yet to be built.

 A federal court's jurisdiction over a case continues only so long as there is present an actual "case or controversy", S.E.C. v. Medical Committee for Human Rights, 404 U.S. 403, 407 (1972). The case becomes moot if, at some stage of the proceedings, a "live controversy" ceases to exist. Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir. 1989). However, so long as there remains the possibility that the plaintiff can obtain "any effective relief", the case is not moot. Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986.) The defendants' undertaking of conduct that the action sought to halt or prevent does not necessarily render the case moot. "'It has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo.'" Garcia, supra, 805 F.2d at 1402, quoting Porter v. Lee, 328 U.S. 246, 251 (1946). The "heavy burden" of proving a case is moot is on the defendant. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

 A suit to compel an EIS under NEPA becomes moot if a decision has already been made and carried out and cannot be undone. If the project has been substantially completed or has already had an irreversible impact on the environment an EIS would serve no purpose, and the plaintiff cannot obtain meaningful relief. Blue Ocean Preservation Society v. Watkins 754 F.Supp. 1450, 1460 (D. Hawaii 1991) ("Blue Ocean I").

 Although not formally recognized in the documents filed, the move to Mid-State involves three stages: (1) the relocation of equipment and personnel to Mid-State; (2) the construction of temporary facilities at Mid-State; and (3) the construction of permanent facilities at Mid-State. Phases one and two have been completed. Phase three has not. *fn11" Stage one is reversible, as is stage two. Defendants argue that the move cannot be reversed with ease and that to do so would cause inconvenience to PAARNG personnel and their families who have relocated to the Phillipsburg area. However, whether the reversal can be accomplished with ease is not the issue. The issue is whether it can be accomplished at all.

  Plaintiffs have not been foreclosed from all meaningful relief by the relocation and construction of temporary facilities. Both steps are reversible. If this court finds defendants' EA FONSI inadequate, it can direct that defendants prepare an EIS before permanent facilities are constructed. See, e.g, Columbia Basin Land Protection Assoc. v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir.1981) (Action contesting the placement of a towers and a power line was not moot since the court could order that the power line be moved). Cf. Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.1988) (Mining operation was complete, making an action to compel an EIS for the project moot, since "a completed mining project cannot be moved"; nor can the court order that the mines be "unmined".)

 Laches

 Defendants argue that this action is barred by laches because plaintiffs waited six months after issuance of the final EA FONSI to file this action, by which time the move had been completed and full-scale operations begun.

 Laches is an equitable defense addressed primarily to the discretion of the court. It requires a showing of both "inexcusable delay and undue prejudice." Daingerfield Island Protective Society v. Lujan, 920 F.2d 32, 37 (D.C.Cir. 1990), cert. denied, 112 S. Ct. 54 (1991). "Laches is a disfavored defense in environmental suits". Id. It is "invoked sparingly" in such actions because the plaintiff is not the only potential victim if the environment is harmed. Any application "less grudging" would subvert efforts to avert decisions with the potential for serious environmental harm. Id.

 In an environmental action, whether the defendant has been prejudiced by the delay is determined by how much of the project has been completed, whether the relief which plaintiffs seek is still practicable, among other factors. Daingerfield Island, supra, 920 F.2d at 38-39.

 Defendants have not demonstrated that they were prejudiced by plaintiffs' six month delay in filing this action. The steps taken toward completion of the project are not irreversible. In addition, plaintiffs have stated, without contradiction, that they were not idle during the six months, and diligently sought legal representation during the period from January to June, 1990. Plaintiffs have been involved in the decision-making process from at least the date when the second draft EA was made available for public comment, and it should have come as no surprise to them that plaintiffs were proceeding with legal action. The delay involved is not significant and the action taken by defendants thus far on the project does not demonstrate the type of prejudice which would justify barring plaintiffs' claims on the basis of laches. See, e.g, Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779-81 (9th Cir. 1980) (action was not barred by laches even though "significant resources" had been spent on the project and "environmental changes" had "already occurred).

 Administrative Record

 The only evidence considered by the court in ruling on the outstanding motions is the evidence reproduced as the Administrative Record. Although plaintiffs sought to supplement the record with evidence not before the agency, the court determined (Record Document No. 35, filed September 14, 1990), based on the holdings in Pennsylvania Protect Our Water and Environmental Resources v. Appalachian Regional Commission, 574 F.Supp. 1203, 1212-15 (M.D.Pa. 1982), (Rambo, J.), aff'd per curiam, sub nom, Borough of Moosic v. Appalachian Regional Commission, 720 F.2d 659 (3d Cir. 1983), ("Appalachian") and Lower Alloways Creek Township v. Public Service Electric, 687 F.2d 732, 743 (3d Cir. 1982), that it could not consider evidence not submitted to the agency. *fn12"

 This conclusion is supported by general principles of judicial review of agency decisions endorsed by the United States Supreme Court. In Camp v. Pitts, 411 U.S. 138, 142 (1973), a per curiam decision reviewing the soundness of a decision by the Comptroller of the Currency, challenged under the APA as "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law", the Court stated: "In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." The Court echoed that view several years later in an environmental case, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 555 (1978), stating: "The role of a court in reviewing the sufficiency of an agency's consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review".

 For purposes of a review under NEPA, she Administrative Record consists of "all documents and materials directly or indirectly considered by agency decision-makers". City of Waltham v. United States Postal Service, 786 F.Supp. 105, 116 (D.Mass. 1992).

 Defendants filed the documents which they contend comprise the Administrative Record. Plaintiffs were given the opportunity to move to supplement defendants' filing if they found it incomplete. Plaintiffs seek to include, as part of the Administrative Record, documents not filed by defendants. Defendants have not made an issue of plaintiffs' request. *fn13" We will consider the documents submitted by plaintiffs part of the Administrative Record in ruling on the parties' motions.

 NEPA and NGB regulations

 NEPA is essentially a procedural statute which provides a framework for analyzing federal agency projects with the potential for impacting the environment by requiring the agency to consider environmental issues before taking any major action. Strycker's Bay Neighborhood Council, Inc. v. Karlen, per curiam, 444 U.S. 223, 225 (1980) and Vermont Yankee, supra, 435 U.S. at 558. It seeks to ensure that federal agencies contemplating such action receive in-put from various sources to assist them in rendering a fully-informed decision so that significant environmental effects are not overlooked or underestimated only to be discovered after resources have been committed to the project or the decision otherwise made irreversible. Robertson v. Methow Valley Citizens, 490 U.S. 332, 349 (1989) and Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976).

 Although the procedures prescribed by NEPA

 are almost certain to affect the agency's substantive decision . . . NEPA itself does not mandate particular results, but simply prescribes the necessary process. . . . (Citations omitted). . . . If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. . . . Other statutes may impose substantive environmental obligations on federal agencies . . . NEPA merely prohibits uninformed--rather than unwise--agency action.

 Robertson, supra, 490 U.S. at 350-51 (Footnote omitted.).

 NEPA is implemented by regulations adopted by the Council on Environmental Quality ("CEQ"), which are set forth at 40 C.F.R. §§ 1500 to 1508 (1991). CEQ regulations define "significant impact" to include considerations of:

 (a) Context. . . . The significance of an action must be analyzed in several contexts such as society as a whole . . . the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. . . .

 (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

 . . . .

 (3) Unique characteristics of the geographic area such as proximity to . . . park lands . . .

 (4) The degree to which the effects on the quality of the human environment are likely to ...


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