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San Diego Navy Broadway Complex Coalition v. United States Coast Guard; Captain Thomas M. Farris

March 30, 2011


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

Order Denying Plaintiff's Motion for Summary Judgment

Plaintiff San Diego Navy Broadway Complex Coalition ("SDNBCC") has filed a Second Amended Complaint for Declaratory, Injunctive, and Mandamus Relief, alleging that Defendants, the U.S. Coast Guard and Captain Thomas Farris violated the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 553 and 706.*fn1 Plaintiff now moves for summary judgment on its claims. Following oral argument, and upon consideration of the parties' arguments, the Court DENIES Plaintiff's motion.


Plaintiff commenced this action on December 15, 2010, challenging the Defendants' failure to enforce the 100-yard on-shore security zone described in 33 C.F.R. § 165.1108(b)(2). On December 17, 2010, Plaintiff applied for a temporary restraining order, asking that the Court enforce the security zone, including excluding all persons from the Broadway Pier and other areas within 100 yards on-shore of any cruise ship berthed at the Pier unless such individual applied for and received an exemption from the Captain of the Port ("COTP"). [Application for Temporary Restraining Order, Doc. 4, p.2.]

After they were served with the Complaint and Application for TRO, but before the hearing on Plaintiff's application, on December 20, 2010, Defendants issued a Temporary Final Rule ("TFR"), Docket No. USCG-2010-1129, suspending paragraph (b)(2) of § 165.1108, thus eliminating the 100-yard on-shore security zone. [Declaration of Commander Leon Guerrero in Support of Defendants' Opposition to Plaintiff's Application for TRO ("Guerrero Decl."), Doc. No. 20-1, Exhibit 4.] The TFR was issued without prior notice and opportunity for public comment based upon the Coast Guard's finding that such procedures would be "contrary to the public interest ... due to the opening of the Broadway cruise ship terminal and the anticipated arrival of cruise ships immediately thereafter, including on December 22, 2010." The Coast Guard further found "[i]t is in the public interest to avoid the potential disruption that could be caused to major roadways just onshore" and "security interests can continue to be maintained during the ensuing notice and comment rulemaking to amend Section 165.1108(b)(2)."

The Court denied Plaintiff's application for a TRO, finding Plaintiff had not shown a likelihood of success on the merits of its claim for mandamus and injunctive relief. In particular, the Court concluded Plaintiff had not shown that the Coast Guard had a mandatory duty to enforce the on-shore security zone in any particular manner which could be directed by the Court. [Doc. No. 32.] Plaintiff thereafter amended its complaint to challenge the validity of the TFR. [Doc. No. 33.] After the Coast Guard issued a Notice of Proposed Rule Making ("NPRM") for the long-term revision of 33 C.F.R. § 165.1108(b)(2), Plaintiff dismissed its claims for enforcement of the on-shore security zone. [Second Amended Complaint, Doc. No. 44.] Therefore, the only remaining claims in this case are Plaintiff's challenge to the validity of the TFR.

The Coast Guard filed the NPRM for public inspection on January 26, 2011, and the notice was published the following day. The comment period ran through February 28, 2011. The Coast Guard received no comments on the NPRM. [Declaration of Commander Kevin F. Bruen, USCG ("Bruen Decl."), ¶ 13.] At the hearing, counsel for Defendants indicated the final rule will be available at the Office of the Federal Register for inclusion in the Federal Register on March 16, 2011. The rule will be published on March 20, 2011, and will become effective 30 days later, on April 20, 2011.

Summary Judgment Standard

Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, because the court is not generally called upon to resolve questions of fact in reviewing an agency action, the ordinary summary judgment standard set forth in Rule 56(c) does not apply. Nehemiah Corp. v. Jackson, 546 F. Supp. 2d 830, (E.D. Cal. 2008); Ohio Valley Environmental Coalition v. Hurst, 604 F. Supp. 2d 860, 879 (S.D. W. Va. 2009). The court's role in reviewing agency actions under the APA is "not to resolve facts, but to 'determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did'." The Save the Peaks Coalition v. U.S. Forest Service, 2010 WL 4961417 at *6 (D. Ariz. Dec. 1, 2010) (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985)).

A district court reviewing an agency decision under the APA is ordinarily limited to the administrative record. Ranchers Cattlemen Action Legal Fund v. U.S. Dep't of Agriculture, 499 F.3d 1108, 1117 (9th Cir. 2007). Evidence outside the administrative record is admissible only where it falls under one of the following four "narrow" exceptions:

(1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.

Id. (citing Southwest Ctr. for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996)).


Plaintiff argues it is entitled to summary judgment on its claims ...

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