State of Washington v. United States Department of the Navy

1 HONORABLE RICHARD A. JONES — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — — 8 — 9 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 10 AT SEATTLE 11 STATE OF WASHINGTON, CASE NO. 19-cv-1059-RAJ 12 Plaintiff, ORDER 13 v. 14 UNITED STATES DEPARTMENT OF THE NAVY, et al., — 15 — Defendants. — 16 — — 17 — I. INTRODUCTION — 18 — THIS MATTER comes before the Court on Plaintiffs’ Motions for — 19 — Reconsideration. Dkts. # 142, 144. The Court has considered Federal Defendants’ — 20 — response. Dkt. # 156. The Court has also considered reply briefs filed by Citizens of the — 21 — Ebey’s Reserve for a Healthy Safe and Peaceful Environment (“COER”) and the State of — 22 — Washington. Dkts. # 157, 159. For the reasons below, the Court GRANTS in part and — 23 — DENIES in part the Motions. — 24 — — 25 — — 26 — — 1 — II. LEGAL STANDARD — 2 — Motions for reconsideration are disfavored under the Local Rules for the Western — 3 — District of Washington. See LCR 7(h)(1). Thus, “in the absence of a showing of manifest — 4 — error in the prior ruling or a showing of new facts or legal authority which could not have — 5 — been brought to [the Court’s] attention earlier with reasonable diligence,” such motions — 6 — will ordinarily be denied. Id. — 7 — III. DISCUSSION — 8 — The detailed history of this dispute is detailed in the Court’s Report & — 9 — Recommendation dated December 10, 2021, and Order on Remedy. Dkts. # 109, 140. — 10 — The Court found the Navy violated NEPA but remanded the FEIS and ROD without — 11 — vacatur. Dkt. # 140. Both the State of Washington and COER move for reconsideration — 12 — of the Court’s remedy order. Dkts. # 142, 144. The Court previously issued an order — 13 — ruling on these Motions for Reconsideration, without providing Defendants an — 14 — opportunity to respond as required by LCR 7(h)(1). Dkt. # 150. In light of this situation, — 15 — the Court held the order in abeyance pending the Court’s receipt of Federal Defendants’ — 16 — response to Plaintiffs’ motions for reconsideration. Dkt. # 155. — 17 — The State of Washington notes that its limited motion for reconsideration of the — 18 — Court’s remedy order seeks clarification on its request that the court retain jurisdiction — 19 — over the matter, set a one-year deadline for the Navy’s compliance with its obligations — 20 — under the National Environmental Policy Act (NEPA), the Administrative Procedure Act — 21 — (APA), and require the Navy to file status reports every 60 days describing its progress. — 22 — Dkt. # 140. COER also seeks this relief with its motion. Dkt. # 144 at 7-9. Federal — 23 — Defendants assert that the Court should not exercise jurisdiction over a matter on remand, — 24 — arguing that retaining oversight over remand proceedings runs contrary to the traditional — 25 — rule. Dkt. # 156 at 3. Additionally, Federal Defendants argue that the State’s request to — 26 — — 1 — provide regular status reports is unjustified and burdensome because “there is no — 2 — evidence in the record that the Navy has unreasonably delayed taking required actions, — 3 — failed to meet deadlines, or demonstrated a history of noncompliance with this Court’s — 4 — orders.” Id. at 4. — 5 — District courts have “broad latitude in fashioning equitable relief when necessary — 6 — to remedy an established wrong[.]” NWF v. NMFS II, 524 F.3d 917, 936 (9th Cir. 2008) — 7 — (quoting Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981 , 986 (9th Cir. 1994)); see also — 8 — Western Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980); Idaho Farm Bureau — 9 — Fed’n v. Babbitt, 58 F.3d 1392 , 1405 (9th Cir. 1995). The Court observes that exercise — 10 — of discretion to retain jurisdiction over a matter on remand is “typically reserved for cases — 11 — alleging unreasonable delay of agency action or failure to comply with a statutory — 12 — deadline, or for cases involving a history of agency noncompliance with court orders or — 13 — resistance to the fulfillment of legal duties.” Baystate Med. Ctr. v. Leavitt, 587 F. Supp. 14 2d 37, 41 (D.D.C. 2008). Nonetheless, specific and targeted requirements, such as setting — 15 — a deadline for compliance with NEPA, may be appropriate in certain cases. See e.g., — 16 — High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 643-45 (9th Cir. 2004) (finding that — 17 — district court acted within its discretion when it required agency to assess cumulative — 18 — impacts by a set date); Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 839 F. Supp. 19 2d 1117, 1128-30 (D. Or. 2011) (declining to vacate an agency’s unlawful decision but — 20 — retaining jurisdiction and setting a deadline for agency compliance). — 21 — In recognition of the significance of the Navy’s errors, the Court will retain — 22 — jurisdiction and sets a deadline for compliance with NEPA of no later than May 1, 2025. — 23 — The Navy must file status reports every 90 days describing its progress toward — 24 — compliance. The Court observes Defendants’ argument that there is no history of — 25 — noncompliance with the Court’s orders. Dkt. # 156 at 4. However, that is not a — 26 — — 1 — prerequisite to retaining jurisdiction and imposing a deadline for compliance. See e.g., — 2 — Alaska v. Lubchenco, No. 10-cv-00271-TMB, 2012 WL 13035040 , at *3-4 (D. Alaska 3 Mar. 5 , 2012) (imposing deadline for compliance for an agency’s action on remand — 4 — “[g]iven the extensive delays in the underlying agency process”). The Navy may move — 5 — for and the Court will, upon a showing of good cause, grant appropriate extensions of the — 6 — deadlines set forth above. Accordingly, this part of the Plaintiffs’ motion is GRANTED. — 7 — Separately, COER argues that the Court incorrectly concluded that the harms of — 8 — the residents have not significantly increased since the record on decision (ROD) and that — 9 — the Court failed to scrutinize the Navy’s national defense argument given reasonable — 10 — alternatives. Dkt. # 144. COER seeks vacatur or partial vacatur. Id. at 6. These — 11 — arguments improper for a motion for reconsideration. Plaintiff does not show manifest — 12 — error of law and fails to make a showing of new facts that could not have been brought — 13 — to the Court’s attention earlier. LCR 7(h)(1). In assessing the appropriate remedy, the — 14 — Court applied the two-part test outlined in Allied-Signal, Inc. v. United States Nuclear — 15 — Regulatory Commission, 988 F.2d 146 (D.C. Cir. 1993). Under that test, the Court — 16 — weighs “the seriousness of the agency’s errors against ‘the disruptive consequences of an — 17 — interim change that may itself be changed.’” Center for Food Safety v. Regan, 56 F.4th 18 648, 663 (9th Cir. 2022); see Dkt. # 140 at 5. COER does not take issue with the law — 19 — applied by the Court, but simply would have reweighed the factors in its favor; in — 20 — particular, COER asks the Court to not take the Navy’s representations of national — 21 — security risk at face value. Dkt. # 144 at 6. But the Court has ruled consistently on this — 22 — issue in not second-guessing senior military officials’ professional judgments. See — 23 — Washington v. U.S. Dep’t of Navy, 2020 WL 8678103 , at *6 (W.D. Wash. July 22, 2020), — 24 — adopted, 2021 WL 796552 (W.D. Wash. Mar. 2, 2021) (recognizing that “the increased — 25 — Growler presence for training at OLF Coupeville is essential for national security”). — 26 — — 1 — Furthermore, a district court balances the hardships of the public interest against a private — 2 — interest, the public interest should receive greater weight.” F.T.C. v. World Wide Factors, — 3 — Ltd., 882 F.2d 344 , 347 (9th Cir. 1989). This applies to Plaintiff’s request to revert — 4 — Growler training to Ault Field instead of OLF Coupeville. Dkt. # 144 at 7. The Court — 5 — reiterates this “not-in-my-backyard” approach subverts the public interest by proposing — 6 — shifting noise to another, more populated community. Washington, 2020 WL 8678103 — 7 — at *6. For these reasons, the Court DENIES this part of COER’s motion. — 8 — IV. CONCLUSION — 9 — For the reasons above, the Court GRANTS in part and DENIES in part the — 10 — Plaintiffs’ Motions for Reconsideration. Dkts. # 142, 144. The Court AMENDS its — 11 — Order on Remedy, Dkt. # 140, and Judgment, Dkt. # 141, as follows: — 12 — 1. The Navy must comply with its obligations under NEPA, the APA, and this — 13 — Court’s Order Adopting Report and Recommendation, Dkt. # 119, no later than May 1, — 14 — 2025; — 15 — 2. The Navy must file status reports every 90 days describing its progress toward — 16 — compliance; and — 17 — 3. The Court retains jurisdiction over this matter for purposes of enforcing the — 18 — above-mentioned requirements. — 19 — — 20 — Dated this 16th day of August, 2024. — 21 — A — 22 — — 23 — The Honorable Richard A. Jones 24 United States District Judge — 25 — — 26 —