Aluli v. Brown (I) |
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(437 F.Supp. 602) 1977 |
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U.S. District Court, D. Hawai’i |
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Opinion by: |
Wong, District Judge |
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Other Jurists: |
Court Below: |
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N/A |
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Key laws involved: |
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437 F.Supp. 602
Noa Emmett ALULI, Emma De Fries, Paul Fujishiro, Warren
Mills Haynes, Jr.,
George Helm, Charles Kauluwehi Maxwell, Sr., Karl
Anthony Mowat, Adrian Nacua,
Kathryn B. Ochwat, Walter S. Ritte, Loretta Ritte,
Herbert F. Santos, Richard
W. Sawyer and Protect Kahoolawe Association,
Plaintiffs,
v.
Harold BROWN, Secretary of Defense, W. Graham Claytor,
Secretary of the Navy,
James L. Holloway, Chief of Naval Operations, Ralph S.
Wentworth, Jr.,
Commandant of the 14th Naval District, and Thomas B.
Hayward, Commander‑in‑
Chief, Pacific Fleet, United States Navy, Defendants.
Civ. No. 76‑0380.
United States District Court, D. Hawai'i.
Sept. 15, 1977.
*604 Joel E.
August, Michael A. Town, Legal Aid Society of Hawaii, Wailuku, Maui, Hawaii,
Ronald A. Albu, Legal Aid Society of Hawaii, Honolulu, Hawaii, Melvin M. M.
Masuda, Honolulu, Hawaii, Thomas R. Cole, Kahului, Maui, Hawaii, for
plaintiffs.
Lt. James W.
Rude, Naval Legal Services Office, L. Mark Wine, Land and Natural Resources
Division, Dept. of Justice, Washington, D. C., for defendants.
OPINION AND ORDER
WONG,
District Judge.
Plaintiffs
have brought this action to declare unlawful and enjoin defendants' bombing
activities on the Island of Kahoolawe. Jurisdiction is invoked under 28 U.S.C.
§§ 1331, 1361; 16 U.S.C. § 1540; 33 U.S.C. §§ 1365, 1415, and 42 U.S.C. §§
1857, 4911. A declaration of rights is sought under 28 U.S.C. §§ 2201, 2202.
Plaintiffs' federal claims arise from, inter alia, the National Environmental
Policy Act, 42 U.S.C. § 4321, et seq., the National Historic Preservation Act,
16 U.S.C. §§ 470‑470r, and Executive Order 11593.
Part V of the
complaint sets forth 13 legal claims. Claim One alleges that "In
conducting bombing operations on Kahoolawe without submitting an environmental
impact statement with their annual appropriation request for federal monies to
fund such operations, Defendants are in violation of 42 U.S.C. § 4332, 40
C.F.R. 1500.5 and 32 C.F.R. 214.6(d)."
Claim Nine
alleges that defendants have authorized activities on Kahoolawe which are
"inherently destructive to all sites, buildings, district and objects
which may exist there, without attempting to adequately locate, inventory, or
nominate to the Secretary of the Interior those which would appear to qualify
for listing in the National Register of Historic Places in violation of
Executive Order No. 11593 and Congressional policy (as enunciated in 16 U.S.C.
§ 470)."
Plaintiffs
have moved for partial summary judgment with respect to Claims One and Nine and
seek to enjoin the defendants from conducting any activities on Kahoolawe which
are violative of the letter and spirit of Executive Order 11593, 36 C.F.R.
*605 Part 800, and OPNAV Instruction
6240.3D and to comply with the survey and nomination requirements enumerated
therein. Plaintiffs further seek to enjoin defendants from conducting any
activity on Kahoolawe which has a significant effect on the environment until
they have submitted a revised environmental impact statement which quantifies
all archaeological sites on the island.
Defendants
have countered with a motion for partial summary judgment on Claim Nine,
asserting that the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C.
§ 470f, does not apply to Kahoolawe because the Secretary of the Interior has
not determined the island eligible for the National Register of Historic
Places, Executive Order 11593 (E.O. 11593) does not provide a private right of
action within the jurisdiction of this court, and the Navy's internal historic
preservation procedures in its Environmental Protection Manual are internal
agency instructions and not regulations within this court's jurisdiction to enforce.
BACKGROUND
Kahoolawe is
the smallest of the eight main islands of the State of Hawaii. It lies
approximately six and three‑quarters miles southwest of the Island of Maui.
Kahoolawe is eleven miles long and six miles wide at its widest point. Of its
area of approximately 45 square miles or 28,777 acres, about 7,750 acres, or
one‑fourth of the island, is used for air‑to‑ground weapons delivery and ship‑to‑shore
bombardment by the defendants, using both live and inert ordnance. [FN1] This
area is known as the "normal target zone" and is located in the
central portion of the island. Approximately 20 ship‑to‑shore and 17 air‑to‑ground
targets are currently located within the normal target zone. [FN2] No targets
are located outside this zone.
FN1. The island is also used for ground
combat training.
FN2. Some targets have been removed
from service because of their close proximity to known archaeological sites.
The
defendants or their predecessors have been using Kahoolawe as a site for aerial
and surface bombardment since 1941. Executive Order 10436, issued on February
20, 1953 by President Eisenhower, placed Kahoolawe under the jurisdiction of
the Secretary of the Navy and reserved the island for naval purposes. Under the
Order, when "there is no longer a need for the use of the area (thereby)
reserved, or any portion thereof, for naval purposes," the Department of
the Navy must notify the Territory (now State) of Hawaii and, upon seasonable
request by the latter, render the area reasonably safe for human habitation.
The
island is hot, dry, and dusty. Water is scarce; annual rainfall is estimated at
approximately 25 inches. Erosion has severely affected several areas. Some
plant and animal life is found on Kahoolawe. Scrub kiawe trees and pili grass
cover portions of the island. Domestic sheep and feral goat are present in
extensive numbers.
Although
the island is presently uninhabited, it was populated from time to time earlier
in its history. Early populations probably never exceeded 150 and were probably
fishermen.
An
archaeological survey conducted by J. Gilbert McAllister in 1931 identified 50
archaeological sites, including heiaus (places of worship of ancient
Hawaiians), fishing shrines, house foundations, camp sites,burial places, and
miscellaneous structures, such as walls, terraces, and piles of stones.
According to the Environmental Impact Statement for Kahoolawe, prepared by the
Department of the Navy in 1972, 11 of those sites are in the normal target
zone. Four of the 11 are less than 500 yards from a target.
In March
1976, an archaeological team from the Office of Historic Preservation,
Department of Land and Natural Resources, State of Hawaii, with the cooperation
of the Navy, began a survey of Kahoolawe to identify sites of historical and
archaeological importance.
*606 In May 1977, pursuant to a contract between the
State and the Navy, a second archaeological team joined the survey. Currently,
the two teams spend five days during each month surveying the island. It does
not appear that the State presently has sufficient funds to intensify their
survey efforts, and the present arrangement appears to be satisfactory to both
the Navy and the State. At the current rate of survey, the final report of the
survey is expected in February 1979.
The
archaeological teams have surveyed 34 percent of the island and have discovered
92 archaeological sites, of which 89 are believed to have met the National
Register criteria. [FN3] About 30 to 35 sites have been found within the normal
target zone, the survey of which has been more than 90 percent completed.
FN3. 36 C.F.R. § 800.10 states in
pertinent part:
(a) "National Register
Criteria" means the following criteria established by the Secretary of the
Interior for use in evaluating and determining the eligibility of properties
for listing in the National Register: The quality of significance in American
history, architecture, archeology, and culture is present in districts, sites,
buildings, structures, and objects of State and local importance that possess
integrity of location, design, setting, materials, workmanship, feeling and
association and:
(4) That have yielded, or may be likely
to yield, information important in
prehistory or history.
The Office of Historic Preservation
believes that the entire Island of Kahoolawe may be eligible for inclusion in
the National Register.
CLAIM ONE
Claim One
is grounded on the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321,
et seq. 42 U.S.C. § 4332(2)(C), as implemented by 40 C.F.R. Part 1500, requires
the preparation and circulation of environmental impact statements (EIS)
"on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment."
A Draft
Environmental Impact Statement of the Department of the Navy on the Kahoolawe
Island Target Complex was filed on November 16, 1971. The Final Environmental
Impact Statement was filed on April 28, 1972. This court found that, as a matter
of law, the then defendants had satisfied all requirements of NEPA. Cravalho v.
Laird, Civ.No. 71‑3391 (1972). The defendants now contend that having complied
with NEPA in 1972, they need not now file another EIS.
Since the
filing of the 1972 EIS, 92 sites have been discovered by archaeological teams
under the supervision of Dr. Hommon, archaeologist for the Office of Historic
Preservation, although only 34 percent of the island has been surveyed. In the
opinion of Dr. Hommon, approximately 89 would meet the National Register
criteria for listing in the National Register. Within the normal target zone,
about 30 to 35 sites have been found. This compares with the figure of 11
thought to be within the target zone as disclosed by the 1972 EIS. Upon completion
of the survey of the entire island, it is expected many additional sites will
be found.
Moreover,
since the 1972 EIS, controversy concerning the use of Kahoolawe as a target
range has developed and several major pieces of federal environment legislation
enacted. These recent significant developments make the filing of a new or
revised EIS imperative. In oral argument, counsel for the defendants did not
dispute the necessity of filing a new or revised statement but contended the
proper time would be after the survey has been completed by the archaeological
teams.
The
language of § 102(2)(C) of NEPA, read properly, is unambiguous when it refers
to proposals for major Federal actions. It clearly means that the EIS must be
submitted prior to the undertaking of the actions. Environmental Defense Fund
v. TVA, 468 F.2d 1164 (6th Cir. 1972) (EIS required even though no
"proposals" had been made since the initial approval of the project).
Plaintiffs urge that the filing of a new or revised EIS
should be made whenever defendants *607
submit budget requests seeking appropriations for naval training operations.
Defendants deny this, arguing that Kahoolawe does not appear as a separate
budget item, that the amounts spent on Kahoolawe are "miniscule,"
that the "proposal for legislation" with regard to general annual
appropriations requests would be the recommendations to Congress made by the
President in his budget and that Congress did not intend NEPA to apply to the
President's annual budget requests, and that it is virtually impossible to
prepare an EIS within the budget review process period.
Defendants' arguments are all without merit. In holding that
the continuing construction of the project was a "proposal for
action" within the meaning of section 102(2)(C) of NEPA, and that the
defendants were required to file an EIS regarding the project, the Court
stated:
The same result obtains if we
construe the phrase "proposals for legislation" in section 102(2)(C) .
. . to encompass annual appropriations requests. Under 31 U.S.C. § 22, the head
of each federal agency must prepare each year a request for regular,
supplemental, or deficiency appropriations to be submitted to Congress by the
President under 31 U.S.C. § 11. Unquestionably, to construe these budgetary
requests as proposals for legislation within the meaning of the NEPA would
facilitate Congress' expressed purpose of constant revision and reevaluation of
ongoing projects.
Apparently in recognition of
this, the Council on Environmental Quality, in its Guidelines . . . interpreted
"actions" covered by section 102(2)(C) to include
"(r)ecommendations or favorable reports relating to legislation including
that for appropriations." (Emphasis in text.)
468
F.2d at 1181. See also Sierra Club v. Morton, 395 F.Supp. 1187 (D.D.C.1975); 40 C.F.R. § 1500.5; 32
C.F.R. § 214.6.
40
C.F.R. § 1500.13 provides that:
Agencies have an obligation to
reassess ongoing projects and programs in order to avoid or minimize adverse environmental
effects. The section 102(2) (C) procedure shall be applied to further major
Federal actions having a significant effect on the environment even though they
arise from projects or programs initiated prior to enactment of the act on
January 1, 1970. While the status of the work and degree of completion may be
considered in determining whether to proceed with the project, it is essential
that the environmental impacts of proceeding are reassessed pursuant to the
act's policies and procedures and, if the project or program is continued, that
further incremental major actions be shaped so as to enhance and restore
environmental quality as well as to avoid or minimize adverse environmental
consequences. It is also important in further action that account be taken of
environmental consequences not fully evaluated at the outset of the project or
program.
It
is undisputed that the use of live ordnance by the defendants on the Island of
Kahoolawe may have significant adverse effects and therefore constitutes major
Federal action. The question remains as to whether defendants' actions
significantly affect the quality of the human environment.
The
island is presently uninhabited although in the past, it was populated from
time to time. Plaintiffs claim and indeed have dramatically demonstrated that
they would like to use the island occasionally at least for religious rites,
accelerated survey of the island for historic sites with the view toward their
preservation, and for fishing and other purposes. Fishing in the waters
surrounding Kahoolawe is presently permitted from time to time when the Navy is
not using the island for target practice. It cannot be gainsaid that
defendants' shelling of the island, at least with live ordnance, significantly
affects the quality of the human environment.
Further, no one denies the existence of archaeological sites
on Kahoolawe important to Hawaiian history and culture. The presence of such
sites requires the filing of a new or revised EIS.
*608 The purpose of NEPA
is to protect and enhance environmental quality. 42 U.S.C. § 4321; 40 C.F.R. § 1500.1(a). The Council on
Environmental Quality (CEQ) guidelines state that the
statutory clause "major
Federal actions significantly affecting the quality of the human environment"
is to be construed by agencies with a view to the overall, cumulative impact of
the action proposed . . . . (The action) may be localized in (its) impact, but
if there is potential that the environment may be significantly affected, the
statement is to be prepared. Proposed major actions, the environmental impact
of which is likely to be highly controversial, should be covered in all cases.
. . .
40
C.F.R. § 1500.6(a). An EIS is meant to further NEPA's purpose. See 42 U.S.C. §
4332(2)(C).
An
action that significantly affects the quality of the human environment is one
that either directly affects human beings or indirectly affects human beings
through adverse effects on the environment. 40 C.F.R. § 1500.6(c). NEPA says
that important historic, cultural, and natural aspects of the nation's heritage
are to be preserved. 42 U.S.C. § 4331(b). In order to meet this obligation, the
Advisory Council on Historic Preservation has instructed federal agencies to
coordinate NEPA compliance with
the separate responsibilities of the National Historic Preservation Act and
Executive Order 11593 to ensure that historic and cultural resources are given
proper consideration in the preparation of environmental impact statements.
36
C.F.R. § 800.2.
Thus, it is clear that an EIS must consider the possible
effects of major federal actions upon historic and cultural resources. Here,
the archaeological teams have already discovered 89 archaeological sites on
Kahoolawe which they believe meet the criteria for placement on the National
Register pursuant to the National Historic Preservation Act (NHPA). These
archaeological sites are a part of the environment of Kahoolawe. Because of
their possible importance to Hawaiian history and culture, an adverse effect
upon the archaeological sites may have a direct effect upon human beings; for
example, the plaintiffs. Regardless, the court believes that an adverse effect
upon the sites would be an adverse effect upon the environment which would have
an indirect effect on human beings. Therefore, the defendants' aerial and
surface bombardment of Kahoolawe is a major federal action significantly
affecting the quality of the human environment.
The
1972 EIS did consider the sites discussed in the McAllister survey. That
survey, however, was incomplete; the current survey has revealed archaeological
sites not included in the McAllister survey. The 1972 EIS, therefore, fails to
properly consider the effects upon all known archaeological sites on Kahoolawe.
For
the foregoing reasons, and because there is no genuine issue as to any material
facts, the plaintiffs are entitled to partial summary judgment with respect to
Claim One.
CLAIM NINE
In
the complaint, Claim Nine is headed "PRESERVATION OF HISTORIC SITES &
EXECUTIVE ORDER NO. 11593." Congress has declared "that the
historical and cultural foundations of the Nation should be preserved as a
living part of our community life and development in order to give a sense of
orientation to the American people". 16 U.S.C. § 470(b). 16 U.S.C. §§ 470‑470r
constitute the National Historic Preservation Act of 1966.
Pursuant to the NHPA, NEPA, and other acts, Executive Order
No. 11593, entitled "Protection and Enhancement of the Cultural
Environment," was promulgated on May 13, 1971. Section 1 is a declaration
of policy. Section 2 enumerates the responsibilities of Federal agencies, while
Section 3 lists the responsibilities of the Secretary of the Interior.
Neither the defendants nor the State have yet made
nominations of appropriate *609 properties
for listing on the National Register. Both, however, are currently engaged in a
joint effort to identify and evaluate the sites to be nominated. Two
archaeological teams, under State supervision, are currently spending five days
a month in discovering and evaluating sites and making recommendations to the
Navy as to what protective measures should be taken. The teams should complete
the survey in another 18 months.
Defendants do not intend to offer for nomination any of the
sites heretofore discovered until survey of the entire island is completed. In
the interim, defendants have undertaken steps to protect the sites that have
already been discovered, such as removing targets in close proximity to them
where they might be endangered.
Plaintiffs contend that defendants have not complied with the
NHPA or E.O. 11593 and the regulations promulgated pursuant to them, primarily
36 C.F.R. Part 800, nor with the Navy's own historic preservation procedures
contained in OPNAV Instruction 6240.3D, which is part of the Navy's
Environmental Protection Manual. This court will discuss the NHPA, E.O. 11593
and 36 C.F.R. Part 800, but finds it unnecessary to reach OPNAV Instruction
6240.3D.
Defendants argue that NHPA does not apply to Kahoolawe since
it is not yet on the National Register of Historic Places nor determined
eligible for the National Register by the Secretary of the Interior, citing 16
U.S.C. § 470f. Facially, this argument appears to have merit. [FN4] However,
when 16 U.S.C. § 470, in which Congress spells out its finding and declaration
of policy, is implemented by 36 C.F.R. Part 800, there can be no doubt that the
NHPA is applicable to the defendants, except with respect to certain specific
provisions (such as 16 U.S.C. § 470f), which do not presently apply because of
the nonfeasance on the part of the defendants.
FN4. Plaintiffs cite Stop H‑3
Association v. Coleman, 533 F.2d 434 (9th Cir. 1976) in opposition. Stop H‑3,
however, is inapposite inasmuch as in that case the Secretary of the Interior
had made a published determination that Moanalua Valley was eligible for
inclusion in the National Register. No such determination has yet been made
with respect to any of the Kahoolawe sites.
Defendants, however, assert that plaintiffs do not have a
private right of action to enforce E.O. 11593, citing Independent Meat Packers
Ass'n v. Butz, 526 F.2d 228 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96
S.Ct. 1461, 47 L.Ed.2d 733 (1976). In that case, the pertinent Executive Order
was found to be one "intended primarily as a managerial tool for
implementing the President's personal economic policies and not as a legal
framework enforceable by private civil action." 526 F.2d at 236. E.O.
11593, on the other hand, was promulgated as an implementation of the NHPA. As
such, it is no mere executive housekeeping tool. E.O. 11593 states explicitly
that the order was issued in furtherance of the purposes and policies of
several acts of Congress, including both the NEPA and the NHPA. Although
neither NHPA nor E.O. 11593 expressly grants a private right of action, such
action can be said to be clearly implied since it is necessary to effectuate
the purpose of both the act and the order. See Acevedo v. Nassau County, New
York, 500 F.2d 1078, 1084 (2d Cir. 1974); Save the Courthouse Committee v.
Lynn, 408 F.Supp. 1323 (S.D.N.Y.1975). This court therefore concludes that E.O.
11593 as well as the pertinent regulations, more specifically 36 C.F.R. Part
800, are applicable to and binding upon the defendants and may be enforced by
the plaintiffs in a private right of action.
E.O.
11593 provides in pertinent part that Federal agencies shall institute
procedures to assure that Federal plans and programs contribute to the
preservation and enhancement of non‑federally owned sites and objects of
historical and archaeological significance (§ 1(3)). Further, § 2 provides that
the head of Federal agencies shall
(a) no later than July 1, 1973,
with the advice of the Secretary of the Interior, and in cooperation with the
liaison officer for historic preservation for the State or *610 territory involved, locate, inventory, and nominate
to the Secretary of the Interior all sites, buildings, districts, and objects
under their jurisdiction or control that appear to qualify for listing on the
National Register of Historic Places.
As
of July 1, 1973, the defendants had not complied with the foregoing directive.
Since that date, it has cooperated with the Hawaii Office of Historic
Preservation in the location of possible sites that appear to qualify for
listing on the National Register. It has not yet completed the inventory nor
has it made any nominations of such sites to the Secretary of Interior.
Subsection 2(b) of E.O. 11593 mandates that the heads of Federal
agencies
exercise caution during the
interim period until inventories and evaluations required by subsection (a) are
completed to assure that any federally owned property that might qualify for
nomination is not inadvertently transferred, sold, demolished or substantially
altered. The agency head shall refer any questionable actions to the Secretary
of the Interior for an opinion respecting the property's eligibility for
inclusion on the National Register of Historic Places. . . .
Although the defendants are continuing to bomb Kahoolawe with
live ordnance, they are and have been taking such protective actions to assure
that the sites (although not federally owned, are nevertheless within federal
control) are not inadvertently demolished or substantially altered. This may
not have been true in the past but this court is convinced of the defendants'
present good‑faith efforts to accomplish these objectives. Despite these good‑faith
efforts, however, there remains the serious question as to whether all possible
sites are being protected in view of the fact that only 90 percent of the
target zone and only 34 percent of the entire island has been surveyed. Any
further actions taken by the defendants which may damage prospective sites
should therefore be referred to the Secretary of the Interior. [FN5] Inasmuch
as the undisputed evidence shows that the entire Island of Kahoolawe might
qualify for nomination for listing on the National Register, the agency head
must refer any questionable actions to the Secretary of the Interior for an
opinion respecting the property's eligibility for inclusion in the National
Register.
FN5. 36 C.F.R. § 800.4(a)(2) directs
that
If the Agency Official determines that
a property appears to meet the (National Register Criteria, set forth in
Section 800.10), or if it is questionable whether the Criteria are met, the
Agency Official shall request, in writing, an opinion from the Secretary of the
Interior respecting the property's eligibility for inclusion in the National
Register.
For the
foregoing reasons, and because there is no genuine issue as to any material
facts, the plaintiffs are entitled to partial summary judgment with respect to
Claim Nine.
RELIEF
Plaintiffs have asked this court, inter alia, to enjoin
defendants from:
1.
Utilizing live ordnance on Kahoolawe until defendants have complied with the
requirements of NEPA and Executive Order 11593.
2.
Failing to perform all acts required of them by the NEPA and Executive Order
11593.
In
addition, plaintiffs seek to have this court declare that defendants are in
violation of NEPA and E.O. 11593. This court has found the defendants to be in
violation of NEPA and E.O. 11593 and has therefore granted partial summary
judgments against the defendants with respect to Claims One and Nine. This does
not mean, however, that an injunction should automatically issue. Essex County
Preservation Ass'n. v. Campbell, 536 F.2d 956 (1st Cir. 1976); Environmental
Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 (8th Cir. 1973).
Injunctive
relief should be granted either where the plaintiff can establish a probability
of success on the merits and the showing of irreparable injury. *611 Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 95
S.Ct. 2069, 45 L.Ed.2d 12 (1975). Under the alternate test adopted by the Ninth
Circuit, injunctive relief may be granted if there are sufficiently serious
questions going to the merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly toward the party requesting the preliminary
relief. Aguirre v. Chula Vista Sanitary Service, 542 F.2d 779 (9th Cir. 1976).
With
respect to the first test, this court finds that plaintiffs will not suffer
irreparable injury if the defendants are not presently enjoined from using live
ordnance on Kahoolawe. Although about two‑thirds of the island remainsto be
surveyed, the survey of the normal target zone has been completed to the extent
of more than 90 percent. Discovery of any site that might be endangered by the
use of live or inert ordnance results in the immediate removal by the Navy of
any target that is within close proximity to the discovered site. All targets
within a 500‑yard radius of a ship‑to‑shore target or within a 300‑meter radius
of an aircraft target have been removed except for site 124, which is 20 to 30
feet below the surface and is therefore adequately protected because of its
underground location. It is true that there is no assurance that all shells are
so accurately fired that they fall within the radii mentioned. [FN6] In
addition, several no‑drop zones, including some within the normal target zone,
have been established within which zones ordnance is not jettisoned except
under the direst circumstances.
FN6. Indeed the initial salvo error
averages approximately 550 yards, with
the maximum miss being 880 yards.
Under the
alternate test, this court does not find the balance of hardships tipping
decidedly toward the plaintiffs. Defendants have testified that the military
readiness of the Third Fleet would be reduced by 30 to 40 percent. Although no
measurement standards were cited in arriving at these figures, the court finds
that the reduction would nevertheless be substantial. Alternative sites were
considered and rejected by defendants. The reasons given for their rejection
seem reasonable. Considering the potential loss of military preparedness, this
court finds that the balance of hardships tip decidedly toward the defendants.
Moving
now to plaintiffs' prayer that defendants be enjoined from failing to perform
all acts required of them by NEPA and Executive Order 11593, this court finds
that plaintiffs have satisfied the two‑pronged requirements of the alternate
test. Since the court has granted partial summary judgment in plaintiffs' favor
with respect to Counts One and Nine, the remaining criterion for granting
injunctive relief is whether the hardships tip decidedly toward the plaintiffs.
They have met this test. Plaintiffs have evinced a real interest in seeking to
have the sites preserved and protected under both the NEPA and NHPA. Defendants
have cooperated with the plaintiffs in trying to attain these objectives. They
have not, however, complied with all the procedures required of them.
Defendants intend to comply with these procedures after the survey has been
completed. Nothing in the NEPA or NHPA gives the defendants an option to await
the completion of all work before proceeding to make the nominations of the
sites to be placed in the National Register, or to comply with the other
directives. [FN7]
FN7. It should be noted that the State
historic preservation official may also nominate properties for listing in the
National Register. E.O. 11593, § 3(a).
CONCLUSION
1.
Partial summary judgment is granted to the plaintiffs and against the
defendants as to Claim One; defendants are found to be in violation of 42
U.S.C. § 4332 (National Environmental Policy Act), 40 C.F.R. § 1500.5 and 32
C.F.R. § 214.6(d).
2.
Partial summary judgment is granted to the plaintiffs and against the
defendants as to Claim Nine; defendants are found to be in violation of
Executive Order No. *612 11593 and 36
C.F.R. Part 800. Defendants' cross‑ motion for partial summary judgment on
Claim Nine is accordingly denied.
3.
Injunctive relief against the defendants enjoining them from using live
ordnance on Kahoolawe until defendants have complied with the requirements of
NEPA and Executive Order No. 11593 is denied.
4.
Defendants are ordered to file an environmental impact statement at least in
draft form within 45 days and in final form within a reasonable period of time
after the filing of the draft form. They are also ordered to file an
environmental impact statement annually so long as they shall continue to bomb
Kahoolawe. All such statements may be updated versions.
5.
Defendants are hereby ordered to comply forthwith with the applicable
provisions of Executive Order No. 11593 and 36 C.F.R. Part 800, including but
not limited to the continued full cooperation with the Hawaii Office of
Historic Preservation in identifying, inventorying, and protecting historic
sites on Kahoolawe; submission for nomination to the Secretary of the Interior
of those sites which appear to qualify for listing in the National Register of
Historic Places, without waiting for the completion of the survey of the entire
island; and referral of its bombing actions on the Island of Kahoolawe to the
Secretary of the Interior for an opinion respecting the entire island's
eligibility for inclusion in the National Register.
SO
ORDERED.
DATED at
Honolulu, Hawaii, September 15, 1977.