Hudson River Sloop Clearwater, Inc. v. Department of the Navy

891 F.2d 414, 1989 WL 149256
CourtCourt of Appeals for the Second Circuit
DecidedDecember 5, 1989
DocketNo. 188, Docket 89-6121
StatusPublished
Cited by28 cases

This text of 891 F.2d 414 (Hudson River Sloop Clearwater, Inc. v. Department of the Navy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 1989 WL 149256 (2d Cir. 1989).

Opinion

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 Clear-water, 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 Home-port. 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 appel-lees).

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.ID (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 Home-port 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 Home-port. Plaintiffs assert that the Navy did [417]*417not 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 Home-port. 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 ap-pellees’ 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.

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891 F.2d 414, 1989 WL 149256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hudson-river-sloop-clearwater-inc-v-department-of-the-navy-ca2-1989.