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SURFRIDER FOUND. v. DALTON

January 13, 1998

SURFRIDER FOUNDATION, Plaintiff,
v.
JOHN DALTON, United States Secretary of the Navy; CHARLES C. KRULAK, Commandant of the United States Marine Corps; CHARLES W. REINKE, Commanding General of the Camp Pendleton Marine Corps Base; COLONEL JOHN R. TODD; and COLONEL W.A. SPENCER, Defendants.



The opinion of the court was delivered by: BREWSTER

 This matter came on regularly for hearing on the parties' cross-motions for summary judgment. After careful consideration of the papers filed by both parties, and of the arguments made by their respective counsel before this Court on December 22, 1997, and January 9, 1998, the Court hereby grants Defendants' motion for summary judgment and denies Plaintiff's motions for a preliminary injunction and for summary judgment.

 I. Case Type and Jurisdiction

 Plaintiff is suing the Secretary of the Navy and officers of the United States Marine Corps (USMC), seeking a declaration that the Defendants have failed to prepare an environmental impact statement regarding proposed military housing construction in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The Court has federal question jurisdiction over this NEPA action under 28 U.S.C. § 1331, and as a citizen suit for review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Plaintiff also alleges that Defendants failed to comply with the mandates of Executive Order 11990 regarding the taking of wetlands.

 II. Factual Background

 The Surfrider Foundation ("Plaintiff") is a non-profit, conservation organization dedicated, in its words, to the preservation and protection of the environment and natural resources of San Diego County and of the world. Defendants, sued only in their official capacities, are Secretary of the Navy John H. Dalton; Marine Corps Commandant General Charles C. Krulak; Charles W. Reinke, Commanding General of Camp Pendleton United States Marine Corps Base ("Camp Pendleton"); Colonel Steve Fisher, Chief of Staff at Camp Pendleton; and Colonel W.A. Spencer, Assistant Chief of Staff, Facilities, at Camp Pendleton.

 This suit focuses on a 32-acre area of land ("the site") located on the northern coast of Camp Pendleton just south of the San Diego County-Orange County boundary. *fn1" The site, sometimes referred to as San Mateo Point or the "Loran" site, is located on the shoreline between southern San Clemente and San Onofre State Beach (SOSB), west of Interstate 5. *fn2" The site is located on a coastal bluff that overlooks the beach at San Onofre. SOSB is used extensively for recreation and is well-known among surfers for its "famous" and "historic" Trestles surfing area. A railroad line runs to the west of the site near the shoreline, crossing the San Mateo Creek by a bridge that spawned the name Trestles. The adjacent area north of the site in Orange County is extensively developed.

 San Mateo Point became a part of Camp Pendleton in 1942, but was transferred to the Coast Guard in 1963. The Coast Guard maintained several buildings and an asphalt parking lot on the site. Administrative Record ("AR") 1:5:13. *fn3" Administration and support buildings and a helicopter landing pad were later constructed in conjunction with then-President Nixon's visits to his San Clemente home, the "Western White House," which was located immediately north of the site. *fn4" Some of the buildings on the San Mateo Point site were used by Nixon to conduct Presidential business, although it appears that little of the Nixon-era structures remain.

 The state beach was created in 1972, providing legal public access to the Trestles surfing spot and the beach. The 2,019 acre park is leased by the USMC to the California Department of Parks and Recreation ("DPR"), and surrounds the site on three sides. The Coast Guard's Loran station ceased operations at the site in 1978. The Coast Guard apparently gave serious consideration to opening the land to a private hotel developer in exchange for off-site services, or in the alternative, to keep the site for exclusive recreation use by its members. The Marine Corps soon began efforts to reacquire the property under the excess property disposition process. DPR expressed a strong interest in acquiring the site to provide better access to the Trestles area. AR 1:34:99.

 Plaintiff alleges that the USMC only revealed its intentions to construct housing until after the site was officially transferred. The USMC had at least privately identified the site for potential housing construction by 1980. AR 1:35:105. Camp Pendleton reports a chronic housing shortage for enlisted Marines, and to a lesser extent, for officers. Marines stationed at Camp Pendleton face high costs-of-living off base, particularly in rapidly-growing southern Orange County. Therefore, many Marines who work in the northern portion of the base live to the south and face long commutes each day along Interstate 5. The USMC is concerned about effects on morale. Furthermore, the construction of pleasant, affordable homes on a coastal bluff overlooking the Pacific Ocean would help Camp Pendleton to attract junior officers.

 In January 1986, internal USMC memoranda indicated that it was no longer the intent to lease the site to DPR, but to construct military housing that would "take advantage of the natural aesthetics/ideal location inherent with the site and provide affordable housing for Marines in a geographic area completely void of such assets." AR 2:69:399. A subsequent report noted that constraints such as military operations, topography, water supplies, and other issues severely limited their options for on-base housing locations, and that it did not want to use property that could have military use when a property such as San Mateo Point, which is not useful for most military exercises, might be available. AR 3:76:411-429. The report briefly listed some advantages of the site: minimal site development costs, proximity to base resources such as school and commissary, available ground water, etc. Id. at 421.

 In August 1987, all necessary federal approvals were cleared and San Mateo Point was transferred from the Coast Guard to the USMC. AR 3:86:481-488. In January 1988, the USMC declined DPR's offer to lease the site, stating that the site was intended for military family housing, and in the interim would be used for military recreation purposes. AR 4:96:507, 4:101:513.

 The USMC began proceedings under NEPA to construct housing at San Mateo Point in 1990. Project history from that date forward is discussed below.

 III. Standard of Review and Procedural Background

 A. Legal Framework of NEPA

 The purpose of the NEPA is set forth in its opening section: "To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. § 4321.

 NEPA "does not mandate particular substantive results, but instead imposes only procedural requirements." Laguna Greenbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9th Cir. 1994). NEPA requires an agency to take a "hard look" at the potential environmental consequences of proposed projects before taking action. Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983). NEPA's "action-forcing" provisions authorizes, and requires, federal agencies to consider the environmental consequences of their actions, and to prepare an environmental impact statement (EIS) for any major federal action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(c).

 An EIS must be prepared when an action is (1) federal, (2) major, and (3) one that would significantly affect the quality of the human environment. The parties in this suit do not dispute that the proposed action is both federal and major for the purposes of NEPA. CEQ regulations require the preparation of an EIS when the proposed agency action is one which "normally requires an environmental impact statement," 40 C.F.R. § 1501.4(a)(1), and bar consideration of an EIS for certain "categorical exclusion," 40 C.F.R. § 1501.4(a)(2). *fn5" When, as in this case, neither of these provisions apply and when the impact of a proposed action is unclear, the agency must prepare an environmental assessment (EA) to determine whether the proposed project would significantly affect the quality of the human environment. Based on the significance determinations made in the EA, an agency either must decide that an EIS is required or issue a Finding of No Significant Impact (FONSI). 40 C.F.R. § 1501.4(c, e).

 An EA should be a "concise public document" that serves to: "(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an [EIS or FONSI]; (2) Aid an agency's compliance with [NEPA] when no [EIS] is necessary; [and] (3) Facilitate preparation of [an EIS] when one is necessary. 40 C.F.R. § 1508.9(a). The EA "shall include brief discussions of the need for the proposal, of alternatives as required by [NEPA] section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. 40 C.F.R. § 1508.9(b). The alternatives analysis of § 102(2)(E) requires agencies to "study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E).

 Because the environmental effects of the proposed major federal construction project were unclear, the Marine Corps was required to prepare an EA. Navy regulations require that the Commandant of the Marine Corps ensure that subordinate officers conduct EA analysis in compliance with Department of Defense (DOD) and CEQ NEPA regulations. 32 C.F.R. § 775.4(c).

 B. Procedural Background

 In January 1990, the USMC organized an EA review committee for the proposed construction of fifty company-grade officer housing units at San Mateo Point. Two alternative "backup" sites were included "because of potential community opposition" to the San Mateo Point site. AR 5:152:685. The alternative locations were both in the southern half of the base: the Del Mar site near Oceanside, California, and the O'Neill Heights site inland near the Naval Hospital.

 The first Final EA, issued in September 1990, concluded that the proposed construction would not have any unavoidable significant environmental effects, and therefore recommended the long-standing preferred option, San Mateo Point. However, the USMC's inability to secure an agreement with the City of San Clemente for water and sewer hookups to the site forced the selection of the Del Mar location in January 1991. AR 8:248:1525. Officer housing was later constructed on that site.

 While DPR again approached the USMC about lease of the site and while some consideration was given to selling the site to developers in exchange for construction services, the USMC continued to aspire to construct officer housing at San Mateo Point. In 1993, when funding for an additional 76 units of housing became available, USMC reached an agreement with the Tri-Cities Municipal Water District that would ensure the provision of water and sewer service to San Mateo Point when needed. AR 9:282:1723. After proceeding for one year to revise and update the 1990 EA, a decision was made to prepare a new EA to more thoroughly evaluate the proposed San Mateo Point project. The draft EA, completed in March 1996, was distributed to numerous government agencies and citizens groups who were invited to submit comments. See, e.g., AR 34:1201:8063. All comments received answers and were included in the Final EA.

 The draft EA was also submitted to the California Coastal Commission (CCC) pursuant to 15 C.F.R. § 930 et seq., which requires federal coastal development projects to comply with state coastal management programs to the maximum extent practicable. In August 1996, the CCC rejected the USMC's bid for a Consistency Determination on the basis that there might be other suitable alternatives within the 120,000 acre base, and because of concerns about the visual impact of the project from the beach. As a result of this vote, the USMC modified the site plan by eliminating 8 units and increasing clustering so that the project would be pushed further back from the bluff. The revised plan also provided for enhanced landscaping to screen the project from viewers on the beach. In October 1996, the Commission awarded a Consistency Determination to the project. AR 53:1912:13130. The CCC's concerns about alternatives analysis are addressed separately in Part V of this Order.

 The final EA, a 375-plus page document, was issued in January 1997. Upon review of the document, the Commanding General of Camp Pendleton issued a FONSI on January 24, 1997. In July 1997, Plaintiff filed its complaint for declaratory and injunctive relief, alleging that the EA and FONSI prepared by Defendants are inadequate under law, and that the USMC's decision not to prepare an EIS was arbitrary and capricious. Pursuant to a stipulated briefing agreement, the parties have submitted cross-motions for summary judgment. Plaintiff also has moved for a preliminary injunction to postpone construction pending the outcome of this action.

 B. Standard of Review for USMC's Failure to Prepare EIS

 While NEPA does not explicitly provide for judicial review over agency decisions, courts have exercised such review since the D.C. Circuit's landmark decision in Calvert Cliffs' Coordinating Committee, Inc., v. United States Atomic Energy Com'n., 146 U.S. App. D.C. 33, 449 F.2d 1109 (D.C. Cir. 1971): "Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck is arbitrary or clearly gave insufficient weight to environmental values. But if the [agency] decision was reached procedurally without individualized consideration and balancing of environmental factors--conducted fully and in good faith--it is the responsibility of the courts to reverse." 449 F.2d at 1115; cited with approval in Jicarilla Apache Tribe of Indians, et al. v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973).

 The proper standard of review has evolved since those early cases. Two standards govern the review of an agency's NEPA actions. Factual disputes, which implicate substantial agency expertise, are reviewed under the arbitrary and capricious standard of § 706(2)(A) of the Administrative Procedure Act. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376-77, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989); Greenpeace Action v. Franklin, 14 F.3d 1324, 1330-31 (9th Cir. 1992). Legal disputes are reviewed under the reasonableness standard. Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 727 (9th Cir. 1995).

 A challenge to an agency decision to issue a FONSI generally involves disputes of fact and not law. In this case, Plaintiff disputes the USMC's factual findings that the environmental effects of its proposal would not be significant or could be mitigated. Therefore, the arbitrary and capricious standard of Marsh applies. See Greenpeace, 14 F.3d at 1330-1331. *fn6"

 In determining whether an agency's action is arbitrary and capricious, a court must consider whether the "agency has taken the requisite 'hard look' at the environmental consequences of the proposed action, carefully reviewing the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors." Greenpeace, 14 F.3d at 1332. (internal quotation omitted). "This inquiry into the facts is to be searching and careful." Id. (citation omitted). "An agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. "Once we are satisfied that an agency's exercise of discretion is truly informed, we must defer to that informed discretion." Id. (internal quotation omitted). Judicial review of a NEPA agency action is generally limited to review of the administrative record. Environmental Coalition of Ojai v. Brown, 72 F.3d 1411, 1414 (9th Cir. 1995) (citing 5 U.S.C.A. § 706).

 The Court may reverse an agency decision under the arbitrary and capricious standard only if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation of the problem that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise. Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 1517, 1521 ...


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