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San Diego Navy Broadway Complex v. United States Coast Guard

December 21, 2010

SAN DIEGO NAVY BROADWAY COMPLEX COALITION, PLAINTIFF,
v.
UNITED STATES COAST GUARD; CAPTAIN THOMAS M. FARRIS, IN HIS OFFICIAL CAPACITY AS THE UNITED STATES COAST GUARD CAPTAIN OF THE PORT, SAN DIEGO; SAN DIEGO UNIFIED PORT DISTRICT; ROBERT VALDERRAMA, IN HIS OFFICIAL CAPACITY AS SAN DIEGO UNIFIED PORT DISTRICT COMMISSIONER; STEPHEN C. PADILLA, IN HIS OFFICIAL CAPACITY AS SAN DIEGO UNIFIED PORT DISTRICT COMMISSIONER; MICHAEL B. BIXLER, IN HIS OFFICIAL CAPACITY AS SAN DIEGO UNIFIED PORT DISTRICT COMMISSIONER; STEPHEN P. CUSHMAN, IN HIS OFFICIAL CAPACITY AS SAN DIEGO UNIFIED PORT DISTRICT COMMISSIONER; LOU SMITH, IN HIS OFFICIAL CAPACITY AS SAN DIEGO UNIFIED PORT DISTRICT COMMISSIONER;AND JOHN A. BULDUC, IN HIS OFFICIAL CAPACITY AS THE CHIEF OF HARBOR POLICE FOR THE SAN DIEGO UNIFIED PORT DISTRICT, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

Order Denying Temporary Restraining Order

Plaintiff San Diego Navy Broadway Complex Coalition ("SDNBCC") has filed a Complaint for Declaratory, Injunctive, and Mandamus Relief, alleging that Defendants, the U.S. Coast Guard, Captain Thomas Farris, the San Diego Unified Port District, the Port District Commissioners, and the Chief of Harbor Police for the Port District, have failed to enforce federal laws and regulations with respect to establishing a security zone on shore around cruise ships entering and berthing in the Port of San Diego. Presently before the Court is Plaintiff's application for a temporary restraining order, to enforce the 100-yard security zone on the shore when the Holland America Line Oosterdam is at Broadway Pier in the Port of San Diego, beginning on December 22, 2010*fn1 , and when any other cruise ships are berthed at the Pier and within 100 yards of the shore at the Broadway Pier. The security zone Plaintiff asks the Court to enforce by a TRO would require closure of portions of the intersection of Harbor Drive and Broadway.*fn2

The San Diego Unified Port District, its Commissioners, and the Chief of Harbor Police (collectively "Port District") and the U.S. Coast Guard and Captain Farris (collectively "federal Defendants"), each filed oppositions to the Plaintiff's motion for a TRO. Just prior to the hearing, Plaintiff filed additional declarations. At the time of the hearing, Plaintiff indicated it intends to dismiss the Port District from this case based upon the Port's representations regarding the scope of its duties in enforcing the security zone. Nonethless, the Port Distirict is currently a party to this action and the Court will address Plaintiff's claims against the Port District herein.

Background

The Port District is the owner and operator of the B Street Pier and Broadway Pier in San Diego Harbor. The Port District uses the B Street Pier as the primary berth for cruise ships visiting San Diego. When the two berths at the B Street Pier are occupied or otherwise unavailable, the Port District intends to use Broadway Pier to provide auxillary berthing for cruise ships. The Port District recently completed construction of a new cruise ship terminal at the Broadway Pier and expects to welcome the first ship at the new terminal on Wednesday, December 22, 2010.

Pursuant to 33 C.F.R. § 165.1108, the following areas are defined as "security zones":

(1) All waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is anchored at a designated anchorage within the San Diego port area inside the sea buoys bounding the port of San Diego.

(2) The shore area and all waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is moored at any berth within the San Diego port area inside the sea buoys bounding the Port of San Diego; and

(3) All waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is underway on the waters inside the sea buoys bounding the Port of San Diego.

§ 165.1108(b). Furthermore, "[i]n accordance with the general regulation in § 165.33 of the part, entry into or remaining in these zones is prohibited unless authorized by the Coast Guard Captain of the Port, San Diego or his designated representative." Plaintiff argues that Defendants are required to enforce the 100-yard security zone around any cruise ship berthing at Broadway Pier. The Broadway Pier is approximately 960 feet long. The Oosterdam is approximately 936 feet. Therefore, the security zone would extend on-shore at least 275 feet, encompassing not only the boardwalk in front of Broadway Pier but also the entire intersection of Broadway and Harbor Drive.

Although the same security regulations apply to the B Street Pier, Plaintiff does not challenge the Defendants' enforcement of regulations at that location. The Coast Guard's security plan is "sensitive security information" which the Coast Guard and Port District are prohibited from disclosing. 33 U.S.C. § 1226(d); 49 C.F.R. § 1520.3, 1520.5(b), 1520.9, 1520.15; 33 C.F.R. § 105.400(c). Earlier this year, Plaintiff submitted a FOIA request to the Coast Guard, seeking documents showing who has requested permission to enter the security zones in the Port of San Diego, whose request was granted, and whose request was denied. The Coast Guard responded by indicating there were no responsive documents. Both the Coast Guard and the Port District in their papers opposing the TRO have declined to explain exactly how they intend to secure the Port without enforcing the 100 yard on-shore security zone.

Legal Standard

In determining whether to grant a temporary restraining order or preliminary injunction, the Court applies the preliminary injunction standard articulated in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365 (2008). A party seeking a preliminary injunction must demonstrate: (1) the likelihood of success on the merits; (2) the likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. 129 S. Ct. at 374. Injunctive relief is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 375-76. Where the requested injunction goes well beyond maintaining the status quo, and instead mandates action, a heightened standard applies -- the court must find that the ...


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