State of Washington v. United States Department of the Navy

Opinion

HONORABLE RICHARD A. JONES 1

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE

10 STATE OF WASHINGTON 11 Plaintiff, Case No. 19-cv-1059-RAJ 12 v. ORDER GRANTING IN PART 13 AND DENYING MOTIONS FOR UNITED STATES DEPARTMENT OF RECONSIDERATION 14 THE NAVY, et al., 15 Defendants. 16 I. INTRODUCTION 17 This matter comes before the Court on Plaintiffs’ Motions for Reconsideration. Dkt. 18 ## 142, 144. For the reasons below, the Court GRANTED in part and DENYING in part 19 the Motions. 20 II. LEGAL STANDARD 21 Motions for reconsideration are disfavored under the Local Rules for the Western 22 District of Washington. See LCR 7(h)(1). Thus, “in the absence of a showing of manifest 23 error in the prior ruling or a showing of new facts or legal authority which could not have 24 been brought to [the Court’s] attention earlier with reasonable diligence,” such motions will 25 ordinarily be denied. Id. 26 III. DISCUSSION 27 1 The detailed history of this dispute is detailed in the Court’s Report & 2 Recommendation dated December, 10, 2021 and Order on Remedy. Dkt. ## 109, 140. The 3 Court found the Navy violated NEPA but remanded the FEIS and ROD without vacatur. Dkt. 4 # 140. Both the State of Washington and the Citizens of the Ebey’s Reserve for a Healthy 5 Safe and Peaceful Environment (“COER”) move for reconsideration of the Court’s remedy 6 order. 7 The State of Washington notes that its limited motion for reconsideration of the 8 Court’s remedy order seeks clarification on its request that the court retain jurisdiction over 9 the matter, set a one-year deadline for the Navy’s compliance with its obligations under the 10 National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and 11 require the Navy to file status reports every 60 days describing its progress. Dkt. # 140. 12 COER also seeks this relief with its motion. Dkt. # 144 at 98. The Court observes that this 13 exercise of discretion is “typically reserved for cases alleging unreasonable delay of agency 14 action or failure to comply with a statutory deadline, or for cases involving a history of 15 agency noncompliance with court orders or resistance to the fulfillment of legal duties.” 16 Baystate Med. Ctr. v. Leavitt, 587 F. Supp. 2d 37, 41 (D.D.C. 2008). Nonetheless, specific 17 and targeted requirements, such as setting a deadline for compliance with NEPA, may be 18 appropriate in certain cases. See High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 643- 19 45 (9th Cir. 2004) (finding that district court acted within its discretion when it required 20 agency to assess cumulative impacts by a set date). In recognition of the significance of the 21 Navy’s errors, the Court will retain jurisdiction and sets a deadline for compliance with 22 NEPA of no later than one year after the date of the Amended Judgment. The Navy must file 23 status reports every 90 days describing its progress toward compliance. The Navy may move 24 for and the Court will, upon a showing of good cause, grant appropriate extensions of the 25 deadlines set forth above. Accordingly, this part of the Plaintiffs’ motion is GRANTED. 26 Separately, COER argues that the Court incorrectly concluded that the harms of the 27 residents have not significantly increased since the record on decision (ROD) and that the 1 Court failed to scrutinize the Navy’s national defense argument given reasonable 2 alternatives. Dkt. # 144. COER seeks vacatur or partial vacatur. Id. at 6. These arguments 3 improper for a motion for reconsideration. Plaintiff does not show manifest error of law and 4 fails to make a showing of new facts that could not have been brought to the Court’s 5 attention earlier. LCR 7(h)(1). In assessing the appropriate remedy, the Court applied the 6 two-part test outlined in Allied-Signal, Inc. v. United States Nuclear Regulatory Commission, 7 988 F.2d 146 (D.C. Cir. 1993). Under that test, the Court weighs “the seriousness of the 8 agency’s errors against ‘the disruptive consequences of an interim change that may itself be 9 changed.’” Center for Food Safety v. Regan, 56 F.4th 648, 663 (9th Cir. 2022); see Dkt. # 10 140 at 5. COER does not take issue with the law applied by the Court, but simply would have 11 reweighed the factors in its favor; in particular, COER asks the Court to not take the Navy’s 12 representations of national security risk at face value. Dkt. # 144 at 6. But the Court has ruled 13 consistently on this issue in not second-guessing senior military officials’ professional 14 judgments. See Washington v. U.S. Dep’t of Navy, 2020 WL 8678103, at *6 (W.D. Wash. 15 July 22, 2020), adopted, 2021 WL 796552 (W.D. Wash. Mar. 2, 2021) (recognizing that “the 16 increased Growler presence for training at OLF Coupeville is essential for national 17 security.”). Furthermore, a district court balances the hardships of the public interest against 18 a private interest, the public interest should receive greater weight.” F.T.C. v. World Wide 19 Factors, Ltd., 882 F.2d 344, 347 (9th Cir. 1989). This applies to Plaintiff’s request to revert 20 Growler training to Ault Field instead of OLF Coupeville. Dkt. # 144 at 7. The Court 21 reiterates this “not-in-my-backyard” approach subverts the public interest by proposing 22 shifting noise to another, more populated community. Washington, 2020 WL 8678103 at *6. 23 For these reasons, the Court DENIES this part of COER’s motion. 24 IV. CONCLUSION 25 For the reasons above, the Court GRANTS in part and DENIES in part the 26 Plaintiffs’ Motions for Reconsideration. Dkt. ## 142, 144. The Court AMENDS its Order on 27 Remedy, Dkt. 140, and Judgment, Dkt. 141, as follows: 1 1. The Navy must comply with its obligations under NEPA, the APA, and this 2 Court’s Order Adopting Report and Recommendation, Dkt. 119, no later than one year after 3 the date of the Amended Judgment; 4 2. The Navy must file status reports every 90 days describing its progress toward 5 compliance; and 6 3. The Court retains jurisdiction over this matter for purposes of enforcing the 7 above-mentioned requirements. 8 9 DATED this 19th day of October, 2023. A 10

11 The Honorable Richard A. Jones 12 United States District Judge 13

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