'Ilio'Ulaokalani Coalition v. Rumsfeld

369 F. Supp. 2d 1246, 2005 U.S. Dist. LEXIS 8308, 2005 WL 1084618
CourtDistrict Court, D. Hawaii
DecidedApril 25, 2005
DocketCV 04-00502DAEBMK
StatusPublished
Cited by3 cases

This text of 369 F. Supp. 2d 1246 ('Ilio'Ulaokalani Coalition v. Rumsfeld) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
'Ilio'Ulaokalani Coalition v. Rumsfeld, 369 F. Supp. 2d 1246, 2005 U.S. Dist. LEXIS 8308, 2005 WL 1084618 (D. Haw. 2005).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT

DAVID ALAN EZRA, Chief Judge.

The court heard Plaintiffs’ Motion and Defendants’ Cross-Motion on February 22, 2005. David Henkin, Esq., and Isaac Moriwake, Esq., appeared at the hearing on behalf of Plaintiffs; Harry Yee, Assistant United States Attorney, Barry Weiner, Department of Justice Attorney, Mark Katkow, Transformation Attorney, and Robert Luis, Senior Army Litigation Attorney, appeared at the hearing on behalf of Defendants. After reviewing the motions and the supporting and opposing memoranda, the court DENIES Plaintiffs’ Motion for Summary Judgment and GRANTS Defendants’ Cross-Motion for Summary Judgment.

Having carefully considered the record, including all motions, memoranda, and exhibits as more thoroughly detailed below, the court holds that Plaintiffs did not alert the Army to their concerns regarding the alternatives analysis during the PEIS public comment process and, therefore, Plaintiffs are precluded from challenging the alternatives analysis in the PEIS now for the first time before this court. Moreover, even if Plaintiffs had raised these issues in a timely manner, they would not succeed based on the merits of their claims as the Army has fully complied with NEPA. The court finds: 1) the Army complied with NEPA’s public notice requirement; 2) the PEIS conducted by the Army fulfills the requirements of NEPA; and 3) the SBCT site-specific EIS complies with NEPA. Therefore, the court holds that the Army has fully complied with the relevant environmental statutes and may proceed with transformation of the 2nd Brigade in Hawaii.

BACKGROUND

Factual Background

Army Transformation and the Programmatic EIS

On October 12, 1999, the Secretary of the Army and the Chief of Staff of the *1249 Army articulated a vision for the Army (“Army Vision”) to meet the challenges of the 21st century. The Army Vision addressed the need for a more responsive, deployable, agile, versatile, lethal, survivable, and sustainable Army unit. To achieve this vision, the Army proposed a thirty-year, phased and synchronized program of transformation. The proposal consists of three phases: the Initial Phase; the Interim Capability Phase; and the Objective Force Phase.

The Initial Phase involves the transformation of two Brigade units. The purpose of this phase was to validate an organizational and operational model for the new brigade combat teams. These “Interim Brigade Combat Teams” are now referred to as “Stryker Brigade Combat Teams” (“SBCT”).

During the second phase, or the Interim Capability Phase, the Army plans to develop five to eight SBCT’s. These SBCT’s are intended to strategically place sustainable combat forces capable of reaching anywhere in the world in 4 days (96 hours). As part of the Interim Capability Phase, and currently at issue, is the Army’s identification of a Hawaii unit, the 2nd Brigade of the 25th Infantry Division, as one of the Army units to be transformed into a SBCT.

The last phase, or Objective Force Phase, intends to transform the SBCT’s and the remaining Army forces into the Objective Force itself. The Objective Force will be configured to generally meet the capabilities set forth in the Army Vision and, more specifically, provide for a more rapid deployment and advanced weapons-system.

On October 26, 2001, the Army issued a Notice of Availability (“NOA”) for comment of the Draft Programmatic Environmental Impact Statement for Army Transformation (“DPEIS”). The comment period ended on December 10, 2001. Defendants claim that only two comments were received, none of which came from Plaintiffs.

In February 2002, the Final Programmatic Environmental Impact Statement (“FPEIS”) was issued, which retained the initial proposal that would evaluate the thirty-year, phased, and synchronized program of transformation.

From April 8 to June 15, 2002, the Army opened a public scoping period on its proposal.- Plaintiffs claim that during this scoping period, there were numerous concerns by Hawaii citizens regarding the environmental and cultural impacts that would result from the transformation of the 2nd Brigade. A number of alternatives were also allegedly suggested during the scoping period.

On April 11, 2002, the Army issued the Record of Decision (“ROD”) for Army Transformation. The ROD required the Commanding General of the 25th ID (L) to determine the best way to achieve the Army Vision taking into consideration environmental factors. Depending on the outcome of the environmental impact analysis of the SBCT transformation, the ROD concluded to implement the transformation of the 2nd Brigade to a SBCT in Hawaii.

In October 2003, the Army released for public review the draft Environmental Impact Statement (“DEIS”). The DEIS discussed various alternatives to transforming the 2nd Brigade to a SBCT in Hawaii. Defendants assert that the alternatives were assessed based on the following criteria: “1) any alternative must provide realistic field training in Hawaii while retaining the capability to meet current and evolving national defense requirements; 2) alternatives must be practical and feasible; and 3) each alternative (except for the No Action Alternative) must meet the training needs required for an SBCT.” Plaintiffs claim that only three alternatives were *1250 discussed in detail. Defendants expressed that a number of alternatives were considered, but were eliminated from the analysis because they did not meet the stated criteria. The three alternatives discussed in detail were: 1) the preferred alternative to fulfill the proposed action to transform the 2nd Brigade to an SBCT in Hawaii (“Preferred Alternative”); 2) the alternative of reducing the amount of land to be acquired (“Reduced Land Alternative”); and 3) the alternative of no transformation of the 2nd Brigade in Hawaii (“No Action Alternative”).

Plaintiffs further claim that the DEIS failed to consider the alternative of relocating the 2nd Brigade to another location outside of Hawaii, therefore violating the National Environmental Policy Act (NEPA). Defendants, however, claim that this alternative was eliminated because of the adverse impacts to training ability and air transport resources.

On May 28, 2004, the Final Environmental Impact Statement (“FEIS”) was published in the Federal Register. Plaintiffs allege that the FEIS concedes to the negative environmental and cultural impacts that the transformation of the 2nd Brigade would have in Hawaii. Plaintiffs again claim that the FEIS failed to consider the alternative of relocating the 2nd Brigade to another location, other than Hawaii, which is in violation of NEPA. On July 7, 2004, the Army issued its FEIS ROD. The ROD selected the Preferred Alternative. Defendants claim that the Preferred Alternative was selected because it maximizes training time by conducting weapons qualification on Oahu and the environmental impact would have the same effect as the reduced land alternative.

Public Participation in the NEPA Process

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Related

'Ilio'Ulaokalani Coalition v. Rumsfeld
464 F.3d 1083 (Ninth Circuit, 2006)

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Bluebook (online)
369 F. Supp. 2d 1246, 2005 U.S. Dist. LEXIS 8308, 2005 WL 1084618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ilioulaokalani-coalition-v-rumsfeld-hid-2005.