Ground Zero Center for Non-Violent Action v. United States Department of the Navy

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GROUND ZERO CENTER FOR NON- No. 14-35086

VIOLENT ACTION, a Washington non-

profit corporation; WASHINGTON D.C. No.

PHYSICIANS FOR SOCIAL 3:12-cv-05537-

RESPONSIBILITY, a Washington non- RBL

profit corporation; GLEN MILNER, an

individual,

Plaintiffs-Appellants, OPINION

v.

UNITED STATES DEPARTMENT OF

THE NAVY; RAYMOND E MABUS, JR.,

in his official capacity as Secretary

of the Navy; ROGER M NATSUHARA,

in his official capacity as Principal

Deputy Assistant Secretary of the

Navy; TERRY J. BENEDICT, Rear

Admiral, in his official capacity as

Director of Navy Strategic Systems

Programs; PETE DAWSON, Captain,

in his official capacity as

Commanding Officer of Naval Base

Kitsap; CHRISTINE STEVENSON, in

her official capacity as Project

Manager at Naval Facilities

Engineering Command Northwest,

Defendants-Appellees.

2 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted May 6, 2016

Seattle, Washington

Filed June 27, 2017

Before: Susan P. Graber, Marsha S. Berzon,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Berzon

SUMMARY*

Environmental Law

The panel affirmed the district court’s summary judgment

in favor of the United States Department of the Navy in an

action brought by Ground Zero Center for Nonviolent Action,

alleging that the Navy had not fully complied with the

National Environmental Policy Act’s disclosure requirements

for the expansion of a TRIDENT nuclear submarine operating

center; vacated the district court’s order concerning Ground

Zero’s use of the inadvertently filed portions of the record;

and remanded.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 3

TRIDENT submarines, armed with nuclear missiles, are

brought to the Naval Base Kitsap in Bangor, Washington for

maintenance. The base has an Explosives Handling Wharf for

such maintenance, and the Navy began considering the

possibility of building a second Explosives Handling Wharf

(“EHW-2”). To comply with NEPA, the Navy prepared and

published an Environmental Impact Statement (“EIS”) for

EHW-2. The EIS mentioned that a particular alternative site

had been considered but rejected because it would not comply

with requirements established by the Department of Defense

Explosives Safety Board and the Naval Ordnance Safety and

Security Activity. Ground Zero challenged the EIS, and

during the litigation, the Navy revealed significant

information not fully disclosed in the EIS.

The panel held that the Navy violated NEPA’s public

disclosure requirement by not revealing that the Safety Board

withheld approval of its plan for the construction of EHW-2.

The panel also held that the Navy further violated NEPA by

withholding the non-disclosed portions of the appendices to

the EIS. The panel further held that both disclosure errors

were, however, harmless.

The panel narrowly construed the district court’s order

restricting Ground Zero’s use of portions of the record. The

panel concluded that it was not clear that the district court

order comported with the First Amendment, and remanded

for further proceedings to determine whether restrictions on

Ground Zero’s speech were warranted. The panel outlined

the new standard to be applied on remand: to impose

continuing restrictions on Ground Zero’s public

dissemination of documents that the Navy inadvertently made

public, a court must identify “compelling reason [to impose

4 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

the restriction] and articulate the factual basis for its ruling,

without relying on hypothesis or conjecture.”

COUNSEL

Katherine George (argued), Harrison-Benis LLP, Seattle,

Washington; James E. Lobsenz (argued), Carney Badley

Spellman P.S., Seattle, Washington; for Plaintiffs-Appellants.

John David Gunter, II (argued) and Luther L. Hajek,

Environment & Natural Resources Division, United States

Department of Justice, Washington, D.C., for Defendants-

Appellees.

David S. Mann, Gendler & Mann LLP, Seattle, Washington,

for Amici Curiae Allied Daily Newspapers of Washington

and Society of Environmental Journalists.

OPINION

BERZON, Circuit Judge:

We consider, principally, the adequacy of the United

States Department of the Navy’s (“Navy’s”) Environmental

Impact Statement (“EIS”) for the expansion of a TRIDENT

nuclear submarine operating center. We also address whether

a district court order restricting the dissemination of

documents that the Navy erroneously made available through

the court’s public docket violated due process or the First

Amendment.

I

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 5

Background

A. The Navy’s Proposed Wharf

Bangor, Washington, is home to Naval Base Kitsap

(“Kitsap”), the Navy’s main operating hub for the Pacific

fleet of its TRIDENT submarine program. TRIDENT

submarines, armed with nuclear missiles, are brought to

Naval Base Kitsap for, among other things, maintenance of

those missiles. The base has an Explosives Handling Wharf

(“EHW” or “EHW-1”) where such maintenance is performed.

During the 1990s, the Navy began upgrading the missiles

used on the TRIDENT submarines. These upgraded missiles

require increased maintenance and will require even more

frequent maintenance as they age. The Navy estimates that

its increased maintenance projects at Kitsap will need

400 “operational days” per year, meaning capacity to perform

400 days’ worth of maintenance sessions in a year. The

existing EHW at Kitsap cannot support those needs. In

general, the present EHW can provide 300 operational days

per year; in some years, due to the need for upkeep on the

wharf, it is usable for fewer than 250 operating days.

The Navy decided that it therefore needed to increase its

operational capacity for missile maintenance at Kitsap. It

began considering the possibility of building a second

Explosives Handling Wharf (“EHW-2”). To comply with the

National Environmental Policy Act of 1969 (“NEPA”),

42 U.S.C. § 4321 et seq., the Navy prepared and published an

EIS, which described the proposal and its projected

environmental impacts.

6 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

The EIS primarily discussed environmental impacts

arising during the construction of EHW-2, as well as the

effect the completed structure and its regular operations

would have on the environment. Several alternatives were

considered in depth, all of which (with the exception of “no

action”) involved constructing a second wharf adjacent to the

first. The alternatives varied in their structural details—for

example, in the size of the support piles on which they would

rest—but not in location. According to the Navy, there were

no other viable sites for the proposed wharf because of the

function the wharf serves. It must be built in water deep

enough to allow submarines to operate, but not so deep as to

make construction of the wharf infeasible.

In addition to considerations of ocean depth, the EIS

made numerous references to constraints on site selection

imposed by the need to handle explosive materials safely. It

mentioned that a particular alternative site had been

considered but rejected because it would not comply with

requirements established by the Department of Defense

Explosives Safety Board (“Safety Board”) and the Naval

Ordnance Safety and Security Activity (“NOSSA”), which

issue and implement safety guidelines surrounding the proper

handling of explosives. The EIS also referred to a potential

plan for a shore-based terminal, rejected for the same reason.

In addition, the EIS explained, to comply with Safety

Board and NOSSA “requirements to protect buildings located

in the vicinity of explosives handling operations,” the

construction of EHW-2 would involve the demolition or

modification of more than a dozen facilities or structures near

the proposed site. Noting that “[a]ll facilities constructed at

the Bangor waterfront must comply with [Safety Board] and

NOSSA requirements regarding explosives safety

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 7

restrictions,” the EIS characterized the proposed location for

EHW-2 as “the only available location along the Bangor

waterfront that ensures designated restricted areas remain

within Navy property boundaries and required separation

distances between facilities are maintained.”

In a section labeled “Public Health and Safety,” the Navy

reported that the existing EHW has “operated safely for over

30 years,” and that “[o]perations at the EHW-2 would be no

different from operations at the existing EHW.” The section

concluded that “there would be no resulting impact to public

health or safety” from the proposed development of EHW-2,

as there would be “[n]o increased danger or change from

current safe operations.”

At several points, the EIS referenced appendices. Three

of these appendices were redacted in their entirety in the

publicly released version of the EIS. According to the EIS’s

references and the appendices’ titles, Appendix A contained

supplemental information describing the purpose and need for

the project, Appendix B contained additional information

regarding alternatives to EHW-2 that the Navy had

considered, and Appendix C contained information regarding

the distance “within which activities and facilities are

restricted to assure protection to life and property in the event

of an accident,” which is referred to as an “[e]xplosives

[s]afety [a]rc.” The EIS stated that these appendices had been

redacted because they contained Unclassified Controlled

Nuclear Information (“UCNI”) the Navy deemed unfit for

public dissemination.1

1

Title 10 U.S.C. § 128(a) permits the Secretary of Defense to order

that certain information relating to nuclear material be withheld from

public disclosure under the Freedom of Information Act (“FOIA”),

8 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

After going through a public comment period and issuing

a final EIS, the Navy issued a Record of Decision announcing

that it had decided to implement one of the proposed EHW-2

construction plans. The EHW-2 plan selected would be

adjacent to EHW-1 and would provide 300 operational days

for missile maintenance every year. Combined with the

operational days available at EHW-1, the 300 additional

operational days permitted by EHW-2 would be more than

sufficient for the TRIDENT program’s needs.

B. Ensuing Litigation

Several months after the final EIS was released, Ground

Zero Center for Nonviolent Action, Washington Physicians

for Social Responsibility, and peace activist Glen Milner

(collectively, “Ground Zero”) filed a complaint against the

Navy and several officials in the Western District of

Washington. Ground Zero alleged that the Navy had not

fully complied with NEPA’s disclosure requirements and

sought an injunction to stop construction of EHW-2.

1. NEPA Claims

During this litigation, the Navy revealed significant

information not fully disclosed in the EIS.2 In particular, one

group of documents indicated that the Safety Board had

5 U.S.C. § 552, and NEPA. See also 42 U.S.C. § 4332(2)(C)(v);

32 C.F.R. § 223.6; Weinberger v. Catholic Action of Haw./Peace Educ.

Project, 454 U.S. 139, 143 (1981) (explaining that “[p]ublic disclosure of

the EIS is expressly governed by FOIA”).

2

Much of this information was included in the administrative record

the Navy submitted to the district court. Some was released in response

to FOIA requests by Ground Zero.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 9

rejected the EHW-2 proposal. According to these documents,

the Safety Board had issued only conditional site approval.

The conditional approval “did not accept safety risks

associated with” the proposed separation distance between

EHW-1 and EHW-2, or the proposed separation between the

two EHWs and a complex on another pier. Worried that an

“explosive mishap involving one missile” could propagate

additional explosions involving other missiles or submarines

being handled at the same time, the Safety Board was willing

to accept the site approval request only if the Navy conducted

a study to “prove that the likelihood of all risk is less than

1x10-6.” The Navy had pointed to previous safety studies

conducted before approving the locations of two EHWs at a

similar base in Kings Bay, Georgia, but the Safety Board was

not satisfied with the Navy’s reliance on those studies.

These new documents also indicated that, rather than

conduct the studies the Safety Board required as a condition

of its approval of EHW-2, the Navy had opted to obtain site

approval via secretarial certification, a process by which the

Secretary of the Navy can approve construction despite any

Safety Board concerns. Two days before the publication of

the final EIS, an internal Navy memorandum stated that the

Secretary had “accept[ed] the risk for mission related

operations and construction of” EHW-2, thus permitting the

construction to proceed.

The Navy also included in the administrative record more

complete—that is, less redacted—versions of EIS Appendices

A, B, and C than had been available to the public. As noted,

these appendices had not been disclosed during the EIS

process on the ground that they contained UCNI. The reason

why much of the previously redacted information was now

made public, the Navy explained, was that the Navy had

10 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

“conducted additional review during the preparation of the

Core Administrative Record and . . . determined that portions

of these documents should not be designated as UCNI and

can be released consistent with current Navy and Department

of Defense Guidance.” As a result of that review, Appendix

A was released in its entirety; Appendix B was released in a

partially redacted form; but Appendix C remained entirely

redacted except for a textual description of its contents. The

now-unredacted text indicated that Appendix C consisted of

an image of the explosives safety arcs for EHW-1 and EHW-

2 and a brief description of the conditions depicted in the

image.

Ground Zero argued that these newly released documents

demonstrated that the Navy had violated NEPA by not

adequately disclosing the risks of EHW-2; by not disclosing

the Safety Board’s lack of approval for the site; by not

disclosing the appendices more completely during the EIS

process; and by not engaging in a reasonably thorough

analysis. The district court disagreed, denying Ground Zero

an injunction, and rejecting Ground Zero’s motion for

summary judgment. Instead, the court granted the Navy’s

summary judgment motion. Ground Zero appealed to this

court.

2. The District Court Order Regarding Navy

Documents

In addition to appealing the district court’s rejection of its

NEPA claims, Ground Zero appeals an order of the district

court (“Order”) restricting Ground Zero’s use of documents

that the Navy made available for a time through the public

docket. Ground Zero argues that the Order violates due

process and the First Amendment.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 11

As the district court explained, its Order issued after the

Navy’s attorney “informed Court staff that documents

containing Classified Information and/or Unclassified

Controlled Nuclear Information . . . have been inadvertently

disclosed.” The Order sealed portions of the record and

directed that, from that point forward, no party was to discuss

or reference any of the documents identified by the order “in

any hearing in this matter”; no party was to “further

disseminate[]” any of the documents; and, once the Navy

prepared replacements, the parties were to return all the CDs

in their possession containing the record, as well as their

copies of the identified documents. Because some of Ground

Zero’s filings had discussed some of the relevant documents,

the court also placed those filings under seal.

Ground Zero filed a motion to unseal the records and lift

the restraints that the district court had put in place. It

pointed out that versions of the sealed documents were

available publicly, as were news articles related to the

documents, and that Ground Zero already had sent some of

the documents to members of the media. The court held a

hearing on the motion, which it ultimately denied.3 Ground

Zero appeals that decision as well.

3

The district court amended its initial order to permit Ground Zero to

keep its copies of the documents in question “for the sole purpose of

appealing their [F]irst-[A]mendment claims.” The Navy subsequently

produced redacted versions of most of the inadvertently disclosed

documents; determined that two of the documents could be released in

their entirety; and decided that two should be withheld in their entirety.

12 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

II

NEPA Issues

NEPA requires federal agencies to “take a ‘hard look’ at

the environmental consequences of their actions by preparing

an EIS for each ‘major Federal action significantly affecting

the quality of the human environment.’” Lands Council v.

McNair, 537 F.3d 981, 1000–01 (9th Cir. 2008) (en banc),

overruled on other grounds by Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 20 (2008) (quoting 42 U.S.C.

§ 4332(2)(C)). The EIS must include “full and fair discussion

of significant environmental impacts” and “inform

decisionmakers and the public of the reasonable alternatives

which would avoid or minimize adverse impacts or enhance

the quality of the human environment.” 40 C.F.R. § 1502.1.

Ground Zero challenges the EIS on several grounds.

First, Ground Zero maintains that the Navy violated NEPA

regulations by not disclosing in the EIS the portions of

Appendices A, B, and C that are now public. Next, Ground

Zero points to the omission from the EIS of the Safety

Board’s disapproval of the EHW-2 plans, and also of the

Navy’s own analysis of potential risks from explosion.

Finally, Ground Zero faults as insufficiently thorough the

Navy’s analysis of alternatives to building EHW-2. We

address each ground in turn.

A. Failure to Disclose Certain Information in the

Appendices to the EIS

When the EIS issued, nothing in the appendices at issue

was publicly disclosed. During this litigation, the Navy

revealed significant portions of the appendices. Ground Zero

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 13

views this later disclosure as a concession that the disclosure

of this material would not harm national security, so the

material should have been disclosed in the first place. Had it

been, Ground Zero maintains, it could have been subject to

public consideration and comment.

The Navy responds that “different reviewers within the

Navy” were in charge of the decision at different steps. In

other words, different officials were responsible at different

points for the redaction decisions and made different calls. A

decision whether certain information may be disclosed, the

Navy emphasizes, is based not on “a bright line, but requires

the reviewing official to exercise judgment in the context of

a particular risk situation.”

We agree with Ground Zero that the Navy’s failure to

disclose the later-produced appendix information violated

NEPA. The governing regulations require that “[i]f an

agency prepares an appendix to an environmental impact

statement the appendix shall . . . [b]e circulated with the

environmental impact statement or be readily available upon

request.” 40 C.F.R. § 1502.18. NEPA’s public disclosure

requirements are “expressly governed by FOIA,” Weinberger,

454 U.S. at 145, however, and some sensitive nuclear

information, as noted, is protected from FOIA’s disclosure

requirements, see 10 U.S.C. § 128; 32 C.F.R. § 223.6.

Specifically, UCNI is protected from FOIA’s disclosure

requirements when “dissemination of such information could

reasonably be expected to have an adverse effect on the

health and safety of the public or the common defense and

security by increasing significantly the likelihood of the

illegal production of nuclear weapons or the theft, diversion,

or sabotage of” special nuclear material, the facilities and

equipment associated with such material, or nuclear weapons

14 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

in Department of Defense custody. 32 C.F.R. § 223.6(a)(1),

(h)(1); see also 10 U.S.C. § 128.

This FOIA standard for nondisclosure is an objective one,

as its text indicates. And the Navy does not now maintain

that the partially redacted versions of the EIS appendices

released in this litigation actually meet the objective

“reasonably be expected to have an adverse effect” standard.

Indeed, it would be strange for the Navy to make that

argument because it has, in this litigation, released them

publicly. Nor does the Navy argue that potential adverse

effects would have occurred had the documents been released

during the EIS process but would now no longer occur.

NEPA requires disclosure “to the fullest extent possible.”

42 U.S.C. § 4332. Unless the standard for nondisclosure

actually was satisfied when the Navy first refused to disclose

any part of the appendices, we cannot hold that its

nondisclosure was justified. And the requisite standard was

not met, according to the Navy’s own current determination.

The Navy therefore failed to comply with NEPA’s mandate.

Nonetheless, the Navy’s failure to disclose the portions of

the appendices at issue was harmless error. When

considering an agency’s failure to comply with NEPA, we

examine whether the error “materially impeded NEPA’s

goals—that is, whether the error caused the agency not to be

fully aware of the environmental consequences of the

proposed action, thereby precluding informed decisionmaking

and public participation, or otherwise materially affected the

substance of the agency’s decision.” Idaho Wool Growers

Ass’n v. Vilsack, 816 F.3d 1095, 1104 (9th Cir. 2016).

Ground Zero has not demonstrated that NEPA’s goals were

materially impeded.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 15

Ground Zero has not specified any information in the

now-revealed portions of Appendix A or B that would have

made a difference in agency decisionmaking or public

participation. It points only to Appendix C, asserting that

“releasing the redacted version of Appendix C during the EIS

process would have alerted the public that there was no study

of explosives safety, as the content was limited to one map

depicting ‘arcs’ wherein people and buildings could be hit by

an explosion, and less than half a page of discussion related

to those arcs.” The very paucity of the appendix, Ground

Zero argues, “was important to the public’s understanding of

how very little attention was devoted to potentially deadly

blasts, and its release would have increased pressure for

meaningful study.”

This contention is unpersuasive. The EIS does not

convey the impression that Appendix C contains some

significant amount of analysis regarding explosives safety.

In the EIS, Appendix C is labeled “Explosives Safety Arcs

for Existing EHW and Proposed Second EHW.” The EIS

states, straightforwardly, that Appendix C contains “[a]rcs for

the existing EHW and the proposed EHW-2,” which are not

being released because they are UCNI. In one other location,

the EIS states that “designated restricted areas” at Bangor are

“further discussed in Section 1.1 and Appendix C.” That

statement, standing alone, could be construed to suggest that

there is meaningful discussion in Appendix C beyond a

picture and a caption. But, in light of Appendix C’s heading,

it is unlikely that any reader would have thought that

Appendix C contained a thorough analysis of safety risks.

We therefore hold that the Navy’s error in failing to release

the additional information in the appendices was harmless.

16 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

B. The Safety Board’s Disapproval

The EIS did not acknowledge the Safety Board’s rejection

of the planned construction of EHW-2. According to the

Navy, it had no obligation to include any information about

the Safety Board’s analysis. The Safety Board has a mandate

of “maximum possible protection,” says the Navy, and so will

reject proposals even when their risk is so low that it does not

rise to NEPA’s standard of “reasonably foreseeable” risks

that must be disclosed. See Department of Defense, Directive

6055.9E at 2 (Aug. 19, 2005).

To support this position, the Navy points to Ground Zero

Center for Non-Violent Action v. U.S. Department of Navy,

383 F.3d 1082, 1090–91 (9th Cir. 2004) (“Ground Zero I”).

Ground Zero I concerned the adequacy of the Navy’s NEPA

compliance with regard to a different modification of the

TRIDENT missile program at Bangor. As to that

modification, Ground Zero had noted that the Navy

incorporated the risk of an accidental explosion into its

planning of the Bangor base’s layout, arguing that the Navy

therefore had to include its analysis of that risk in its EIS. Id.

at 1090.

We disagreed, noting that the Defense Department’s

“regulations that govern base planning have different aims

and standards than NEPA,” explicitly contrasting the

“maximum possible protection” standard with the

“reasonably foreseeable” standard found in NEPA

regulations. Id.; see 40 C.F.R. § 1508.8(b) (defining “effects”

for NEPA purposes to include “indirect effects” that are

“reasonably foreseeable”). In Ground Zero I, the Navy had

done its own estimation of the risk of accidental explosion

and concluded that the odds were between one in 100 million

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 17

and one in one trillion. 383 F.3d at 1090. We concluded that

“such remote possibilities do not in law require

environmental evaluation.” Id. Here, the Navy argues, the

risks that concerned the Safety Board are similarly remote,

and so did not need to be discussed in the EIS.

In assessing the Navy’s invocation of Ground Zero I, it is

important to bring into focus the precise import of Ground

Zero’s reliance on the Navy’s failure to disclose the Safety

Board’s lack of approval. In part, Ground Zero contends that

omitting mention of the Safety Board’s disapproval either

indicates a violation of NEPA’s foundational requirement that

government agencies “take a ‘hard look’ at environmental

consequences before committing to action,” id. at 1086

(quoting Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350 (1989)), or, at least, a failure fully to

communicate its internal consideration of those consequences

to the public, as “[i]nternal discussion cannot satisfy NEPA.”

As to these challenges, Ground Zero I is largely controlling.

Here, as in Ground Zero I, the Navy calculated the risk of

fatalities from an accidental explosion and concluded that it

was extremely small. Although the Safety Board was not

satisfied with the Navy’s studies, the record does not indicate

that there was contrary evidence the Navy ignored. Rather,

it appears that the Safety Board thought the rigor of the

Navy’s studies inadequate. The record shows that, even if the

Navy’s studies were not up to the Safety Board’s standards,

the Navy did take an adequately “hard look” at the issue of

safety for NEPA purposes. See id.

The Navy conducted an analysis of the collective and

individual fatality risks faced by personnel at the wharf, based

on previously conducted propellant hazard studies. It also

18 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

evaluated separation distances between facilities based on

data previously approved for the explosives handling

facilities at Kings Bay, Georgia, where the Navy conducts

similar operations.

More specifically, the Navy convened a meeting to

discuss explosives risk, attended by the Safety Board,

weapons manufacturers, the Office of the Chief of Naval

Operations, and representatives from the Bangor base. In

addition, there was extensive written documentation at

various levels within the Navy Command concerning the

degree of risk, particularly during the process of obtaining a

secretarial certification. Finally, the Navy accommodated

other Safety Board requirements related to explosives

handling by adopting plans to modify or demolish buildings.

These responses demonstrate that the Navy, far from ignoring

safety concerns, was considering them carefully and

responding where appropriate.4

“[W]hile we carefully scrutinize an agency’s actions

under NEPA, we must ‘be mindful to defer to agency

expertise, particularly with respect to scientific matters within

the purview of the agency.’” Nw. Envtl. Advocates v. Nat’l

Marine Fisheries Serv., 460 F.3d 1125, 1133 (9th Cir. 2006)

(quoting Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land

Mgmt., 387 F.3d 989, 993 (9th Cir. 2004)). “Agencies are

normally entitled to rely upon the reasonable views of their

4

Ground Zero also objects to the Navy’s decision not to discuss in its

EIS the removal of an explosive fragment barrier at EHW-1. The Navy

decided to remove the barrier in 2011 as part of the pile replacement

project at EHW-1. That project was subject to a separate NEPA analysis,

conducted before the Navy’s risk analysis for EHW-2 and request for

secretarial certification of the second site. Challenges to the removal of

the explosive fragment barrier are thus not before us.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 19

experts over the views of other experts.” Ground Zero I,

383 F.3d at 1090. Ground Zero has not demonstrated that the

Navy’s reliance on its own experts was unreasonable.5 And,

as mentioned in Ground Zero I, the Safety Board’s mandate

to assess “maximum possible protection” implicates risks that

fall below NEPA’s “reasonably foreseeable” standard. See

id. That the Safety Board had risk concerns thus does not

necessarily demonstrate substantive noncompliance with

NEPA.

Further, Ground Zero I “rejected the notion that every

conceivable environmental impact must be discussed in an

EIS.” Id. at 1089 (quoting No GWEN All. of Lane Cty., Inc.

v. Aldridge, 855 F.2d 1380, 1385 (9th Cir. 1988)). As in that

case, the Navy reasonably concluded that the risks that

concerned the Safety Board here were small enough that the

Navy did not have a duty to discuss them.6

In short, the Navy’s safety analysis, including the decision

to override the Safety Board, was not arbitrary or capricious,

and was supported by substantial evidence. See 5 U.S.C.

5

Ground Zero accuses the Navy of not considering that two wharfs

necessarily create a higher safety risk than one, both because more

missiles will be handled at two wharfs than at one and because an

explosion at one wharf could cause a second explosion at the other. It is

true that the Navy does not give detailed consideration to these

phenomena. But its risk analysis does state that, given the very low risks

involved at each wharf, even in “the highly unlikely event where both

Wharfs were involved, the estimated probability of fatality would still fall

below” one in one million.

6

For the same reason, we reject Ground Zero’s argument that the

Navy was required to disclose the internal studies determining that the

explosive risk was very low.

20 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

§ 706(2). The analysis meets NEPA’s requirements for a

“hard look.” See Ground Zero I, 383 F.3d at 1086.

There is, however, a second, procedural strand to Ground

Zero’s complaint—that the EIS should have, but did not,

reveal the Safety Board’s refusal to approve the second wharf

at the Bangor site. In addition to requiring a “reasonably

thorough discussion” of a project’s environmental

consequences, id. at 1089 (quoting Trout Unlimited v.

Morton, 509 F.2d 1276, 1283 (9th Cir. 1974)), “NEPA

imposes on federal agencies conducting environmental

review a duty to consult with certain other agencies,” Idaho

Wool Growers, 816 F.3d at 1102. “[T]he language

establishing NEPA’s consultation requirement is expansive.

It mandates consultation with any federal agency that has

‘special expertise with respect to any environmental impact

involved.’” Id. at 1103 (emphasis in original opinion)

(quoting 42 U.S.C. § 4332(2)(C)). These consultations “shall

accompany the proposal through the existing agency review

processes.” Id. (quoting 42 U.S.C. § 4332(2)(C)). And here,

of course, the military’s own procedures required consultation

with the Safety Board before proceeding with the project, and

the consultation actually occurred. Ground Zero maintains

that by omitting reference to the Safety Board’s objections,

the Navy violated the public disclosure aspect of NEPA’s

consultation requirement. On this point, Ground Zero I does

not control. In that case, there was no indication the Navy

failed to get approval from any safety authority or otherwise

encountered dissatisfaction from any other agency with its

risk assessment. See Ground Zero I, 383 F.3d at 1089–91.

Under the circumstances here, the Navy’s own adequate

determination that the risk of explosion was low does not

excuse its failure to disclose in the EIS the results of its

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 21

consultation with the Safety Board. NEPA mandates

consultation with “any Federal agency which has jurisdiction

by law or special expertise with respect to any environmental

impact involved.” 42 U.S.C. § 4332(2)(C) (emphases added).

This language applies with special force to the Safety Board.

The Safety Board, created by the secretaries of the military

departments under 10 U.S.C. § 172, is empowered by the

Department of Defense to promulgate “binding, minimum

safety standards” to protect people and property “from the

potential damaging effects of [Department of Defense]

military munitions.” Department of Defense, Directive

6055.9E at 2. Given that the Safety Board has both

“jurisdiction by law” and “special expertise,” and given that

the Safety Board was in fact consulted as required, the EIS

should have disclosed the Safety Board’s comments

regarding the risks of negative environmental consequences

from an explosion at the second wharf.

Moreover, throughout the EIS, the Navy relied on

compliance with the Safety Board’s explosives safety

standards to justify a variety of decisions. The Navy stated,

for example, that EHW-2’s placement is “the only available

location along the Bangor waterfront that ensures . . . required

separation distances between facilities are maintained.” It

rejected a specific alternative site on the ground that it would

not comply with the Safety Board’s guidelines surrounding

the proper handling of explosives. And in response to a

public comment concerned about the safe handling of

explosives, the Navy explained that “[a]ll facilities

constructed at the Bangor waterfront must comply with

[Safety Board] and NOSSA requirements regarding

explosives safety restrictions.”

22 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

The EIS thus created the appearance that the Navy was

intent on complying with the Safety Board’s standards.

Nowhere did the EIS state otherwise, or reveal that the Navy

was seeking a secretarial certification to allow it to deviate

from the Safety Board requirements.

Ground Zero contends that the Navy “lied” when it

represented that EHW-2 complied with the Safety Board’s

requirements; the Navy responds that the Safety Board’s

regulations themselves permit the secretarial certification

method of approval for structures that “deviate from” the

Safety Board’s requirements, so it was not false to say the

structure complied with the regulations. There is no need to

settle this dispute as to whether there was an affirmative

misrepresentation. Whether there was or not, the

combination of the affirmative reliance on the Safety Board

requirements and the failure to disclose the Safety Board’s

disapproval of the Navy’s risk assessment was inconsistent

with the responsibility NEPA imposed to disclose the results

of consultation with expert agencies.

This omission was, however, once again harmless. NEPA

requires “that responsible opposing viewpoints are included

in the final impact statement,” a goal that “reflects the

paramount Congressional desire to internalize opposing

viewpoints into the decisionmaking process.” Ctr. for

Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157,

1167 (9th Cir. 2003) (quoting California v. Block, 690 F.2d

753, 770–71 (9th Cir. 1982)). But here, the opposing

viewpoint was fully considered in the internal

decisionmaking process, even though its result was not fully

disclosed to the public.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 23

NEPA’s requirement that agency consultation be

disclosed also fosters NEPA’s overarching goals of

“[i]nformed decisionmaking and public participation.” Idaho

Wool Growers, 816 F.3d at 1102–04. But, as we have already

explained, the Navy had no responsibility to discuss in the

EIS the Safety Board’s risk assessment, as it concerned a

level of risk much lower than the threshold for exposure in an

EIS. That being the case, public participation as to the risk

assessment actually pertinent to the EIS would not

measurably have been enhanced by the knowledge that the

Safety Board thought the Navy’s methodology inadequate to

determine risk at a more fine-grained level than it either did

or was required to do.

In sum, by not disclosing the Safety Board’s assessment,

the Navy violated its NEPA obligation, after “consult[ing]

with” expert agencies, to “ma[k]e available . . . to the public”

the comments and views of the consulting agency “to the

fullest extent possible.” 42 U.S.C. § 4332. But, given the

gap between its risk assessment responsibility in the EIS and

the approach the Safety Board preferred, the failure to

disclose was harmless.

C. Reasonably Thorough Analysis

NEPA regulations require agencies to “[r]igorously

explore and objectively evaluate all reasonable alternatives,

and for alternatives which were eliminated from detailed

study, briefly discuss the reasons for their having been

eliminated.” 40 C.F.R. § 1502.14(a). The regulations note

that “[t]his section is the heart of the environmental impact

statement.” Id. § 1502.14.

24 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

Here, the EIS’s listed “alternatives” are quite similar to

each other. Aside from the “no action” alternative, the

proposed actions all involved building a second explosives

handling wharf at an identical location, adjacent to EHW-1,

differing only in some of their construction and support

details.

The Navy’s listed alternatives, although narrow in scope,

were “reasonable” in light of its operational goals. The

overriding goal of the project was reaching an operational

capacity of at least 400 days per year at Kitsap. One possible

alternative to building a second wharf, expediting the repair

of EHW-1, would not suffice, as it would provide only

around 300 operational days per year.7 Given the Navy’s

goal of 400 operational days per year, it is clear that EHW-1

on its own would be inadequate even after repair. Finding

another location for the wharf was not feasible, because

EHW-2 had to be located where the water was deep enough

for submarine operability but shallow enough to permit the

wharf’s construction.

True, “an agency cannot define its objectives in

unreasonably narrow terms.” City of Carmel-by-the-Sea v.

7

Similarly, Ground Zero is unpersuasive when it argues that the Navy

violated NEPA regulations “by taking action in May 2011 to limit the

choice of reasonable alternatives to a new wharf, announcing a decision

not to replace all of the aging wharf’s deteriorating piles at one time.”

NEPA forbids an agency from taking an action that “[l]imit[s] the choice

of reasonable alternatives” before an EIS is issued, 40 C.F.R.

§ 1506.1(a)(2), as well as “commit[ting] resources prejudicing selection

of alternatives before making a final decision,” id. § 1502.2(f). But the

expedited repair of EHW-1 in lieu of building EHW-2 was not a

reasonable alternative. The Navy’s decisions regarding the time frame for

EHW-1’s repair therefore did not violate the NEPA regulations.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 25

U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997).

But “[a]gencies enjoy ‘considerable discretion’ to define the

purpose and need of a project.” Nat’l Parks & Conservation

Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th

Cir. 2010) (quoting Friends of Se.’s Future v. Morrison,

153 F.3d 1059, 1066 (9th Cir. 1998)). The Navy’s

operational goal of 400 days per year is not arbitrary,

capricious, unreasonably narrow, or otherwise flawed. See

City of Carmel-by-the-Sea, 123 F.3d at 1156–57. And the

Navy’s considered alternatives were “reasonable in light of

the cited project goals.” Id. at 1155.

In sum, the Navy violated NEPA’s requirements in some

respects, but its errors were harmless with regard to meeting

its basic NEPA obligations.

III

The District Court’s Order Regarding the Record

Ground Zero’s other challenge is to what it calls the

district court’s “gag order.” The Order, in addition to sealing

part of the district court record, prevented Ground Zero from

disseminating or further referencing in the litigation

documents the Navy inadvertently disclosed. By doing so,

Ground Zero contends, the Order violates due process,

because it leaves unresolved the question whether Ground

Zero may disseminate identical copies of the documents if it

obtains those copies from independent sources and so is

unconstitutionally vague. And, Ground Zero maintains, the

Order also violates the First Amendment as a prior restraint

on speech.

26 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

With regard to the due process challenge: Neither the text

of the so-called “gag order” nor the district court’s

subsequent clarifications squarely state whether Ground Zero

may disseminate copies of the sealed documents it obtains

from independent sources. The original Order identified a

series of documents and provided that none of them “shall be

discussed or referenced in any hearing in this matter” or

“further disseminated.” Reading that Order in light of the

district court’s comments as to its scope and purpose, see,

e.g., In re Dual-Deck Video Cassette Recorder Antitrust

Litig., 10 F.3d 693, 695 (9th Cir. 1993), we readily construe

it as not having the reach Ground Zero fears.

At the hearing on Ground Zero’s motion to unseal, the

district court stated that it would not “sanction the plaintiffs

for possessing or finding [the documents] from Google.” The

court also stressed that its intent was to avoid “expand[ing]

the reach of these documents by including them in statements,

arguments, [or] evidence for purposes of th[e] preliminary

injunction.” These comments indicate that the Order did not

forbid Ground Zero from disseminating copies of the sealed

documents if procured from an independent source. By

independent source, we mean what the district court implied:

Ground Zero may discuss and distribute the documents in

question so long as it acquires the documents from a source

not involved in this litigation. See Seattle Times Co. v.

Rhinehart, 467 U.S. 20, 34 (1984) (permitting dissemination

of information identical to that subject to a protective order so

long as the “information is gained through means independent

of the court’s processes”). It may do so even if the

independent source originally obtained the documents from

Ground Zero, so long as Ground Zero disseminated them

before the district court entered the sealing order. Cf. United

States v. Caparros, 800 F.2d 23, 27 (2d Cir. 1986)

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 27

(concluding that from whence a document was “most

recently” obtained determined the court’s power to restrict

dissemination of it). We so construe the Order, thereby

resolving Ground Zero’s vagueness objection.

With regard to the First Amendment challenge: The

parties identify two relevant lines of cases, neither of which

directly addresses the issue raised here. The Navy analogizes

the district court’s Order to a protective order shielding

pretrial discovery, not publicly disclosed, from subsequent,

unilateral public disclosure. Ground Zero invokes cases

invalidating prior restraints on speech. The precise issue in

this case is whether a litigant who obtains information from

public filings later sealed may be prohibited from further

dissemination of that information. Whether the First

Amendment precludes such a prohibition is a question that

falls somewhere between the analogies the parties propose.

On the one hand, Seattle Times Co. v. Rhinehart makes

clear that courts have significant discretion to constrain

litigants from disseminating information obtained through

litigation. Seattle Times upheld a trial court’s protective

order prohibiting the Seattle Times, a party to the case, from

publishing or disseminating information obtained in

discovery. 467 U.S. at 27, 37. In light of Seattle Times, this

court, and many others, have applied relaxed First

Amendment scrutiny to district courts’ restrictions of

litigants’ speech given “the relationship between [them] and

the court system.” Levine v. U.S. Dist. Court, 764 F.2d 590,

595–96 (9th Cir. 1985) (listing cases). Like the Seattle

28 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

Times, Ground Zero is a party to the litigation and obtained

the disputed documents in the course of litigation.8

The government’s submission of an administrative record

to a court for review differs in some important respects,

however, from the discovery process in a normal civil trial.

Protective orders safeguard the interests of litigants who have

no choice but to turn over sensitive information to the other

party. See Seattle Times, 467 U.S. at 29–32, 34–36. When

privileged information is turned over inadvertently to a party

in the course of discovery, applicable privileges generally are

not waived. Fed. R. Evid. 502(b). Far from obtaining the

right to share the inadvertently produced documents, the party

who mistakenly received the information must “promptly

return, sequester, or destroy” it once notified it is privileged.

Fed. R. Civ. P. 26(b)(5)(B). Seattle Times emphasized that

restrictions on litigants’ use of discovery documents are

permissible because “restraints placed on discovered, but not

8

Applying these precepts, Ground Zero surely would not have had a

First Amendment right to disseminate the information at issue had the

Navy in the first instance properly submitted it under seal. Nor did the

Navy have an independent obligation to publish this information under

NEPA. NEPA does not require government agencies publicly to disclose

all the information on which they rely in preparing an EIS. See San Luis

Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, 635 F.3d 1109,

1116 (9th Cir. 2011) (“SLOMFP”). SLOMFP, for example, addressed a

NEPA challenge to a decision by the Nuclear Regulatory Commission and

considered whether the Commission should hold closed hearings to

discuss sensitive information with the plaintiff organizations. Id. at

1117–18. We held that such hearings were not required, but implied that

an agency dealing with sensitive information in the NEPA context could

potentially use such hearings, or analogous devices such as sealed filings,

to demonstrate its NEPA compliance to interested parties and, potentially,

to courts. Id.

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 29

yet admitted, information are not a restriction on a

traditionally public source of information.” 467 U.S. at 33.

By contrast, the administrative record filed in a NEPA

court case is “a traditionally public source of information.”

The Navy knew, or should have known, that the documents

it was filing would be made public. Furthermore, it was

required to turn over to Ground Zero only documents that

would have been available under FOIA to anyone who

requested them. See SLOMFP, 635 F.3d at 1115–16.

Recognizing its limited responsibility, the Navy requested

additional time to submit the administrative record and

initially redacted some information from the public docket.

In short, the Navy’s publication here was—albeit

inadvertently—to the public, not simply to the opposing party

and the court. It occurred during litigation, but the Navy had

no obligation to submit the portions of the documents now

contested. The presuppositions of the Seattle Times line of

discovery cases are thus only partly pertinent.

But this case also is not entirely parallel to the prior

restraint cases involving media organizations. The First

Amendment generally protects those who distribute

information obtained through public court proceedings. See

Okla. Publ’g Co. v. Dist. Court, 430 U.S. 308, 310–11 (1977)

(per curiam); Cox Broad. Corp. v. Cohn, 420 U.S. 469,

494–95 (1975). That protection attaches in at least some

situations where the government inadvertently discloses

information to the public. See Fla. Star v. B.J.F., 491 U.S.

524, 538 (1989).

Here, Ground Zero “lawfully obtain[ed] truthful

information about a matter of public significance,” id. at 533

30 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

(citation omitted), and it did so through a channel accessible

to any interested member of the public. That channel, the

district court’s docket, itself implicates the public’s common

law and First Amendment rights of access to documents filed

in court proceedings. See San Jose Mercury News, Inc. v.

U.S. Dist. Court, 187 F.3d 1096, 1101–02 (9th Cir. 1999)

(recognizing under the common law a presumption of public

access to judicial records filed in civil cases); Oregonian

Publ’g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1465 (9th Cir.

1990) (recognizing that a qualified First Amendment right of

access applies to “court proceedings and documents”).

Further, New York Times Co. v. United States, 403 U.S. 713,

714 (1971) (per curiam), indicates that national security

interests, such as those the Navy asserts here, are generally

insufficient to overcome the First Amendment’s “heavy

presumption” against the constitutionality of prior restraints,

even against those who disseminate information obtained

illegally—which is not, of course, what occurred here. In

short, because the district court’s Order targets information

the Navy released not just to Ground Zero but also to the

public, it implicates Ground Zero’s First Amendment rights

differently than would a properly implemented protective

order concerning ordinary pretrial civil discovery, like the

one considered in Seattle Times.

Yet, the Order’s reach also differs significantly from the

prohibitions considered in the prior restraint cases. In the

prior restraint cases, media organizations were exposed to

liability for publishing information regardless of how it was

obtained. See Cox Broad. Corp., 420 U.S. at 471–72; Okla.

Publ’g Co., 430 U.S. at 308; N.Y. Times Co., 403 U.S. at 714.

Here, Ground Zero may disseminate the documents at issue

so long as it obtains them from an independent source. The

Order therefore prohibits dissemination only of those

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 31

documents filed in error that Ground Zero acquired

exclusively through this litigation and that it had not already

disseminated when the Order was issued.

Because neither of the lines of cases the parties put

forward is quite on point here, we chart a middle course. We

conclude that, because the Navy filed the contested

documents on the public docket, to impose a restriction on

Ground Zero’s further public disclosure of them, the Navy

must meet a stricter standard than the showing of good cause

necessary to obtain a protective order in the typical discovery

context. Fed. R. Civ. P. 26(c).

Our caselaw on protective orders regarding discovery

materials provides a baseline. A party seeking an ordinary

protective order under Federal Rule of Civil Procedure 26(c)

must show that “specific prejudice or harm will result if no

protective order is granted.” Phillips ex rel. Estates of Byrd

v. Gen. Motors Corp., 307 F.3d 1206, 1210–11 (9th Cir.

2002). If the party makes this showing, the court must then

determine if an order is necessary by “balanc[ing] the public

and private interests ” at stake. Id. at 1211. Even if we were

to find the district court’s Order precisely analogous to a

protective order—and we ultimately do not—the district court

should have engaged in this two-step analysis. It is not clear

that it did.

Because the Order in this case raises more serious First

Amendment concerns than would a typical protective order

affecting only discovery materials, however, we require a

showing of more than good cause to justify it, as courts have

done in other cases raising similar First Amendment

questions. For instance, once information subject to a

protective order is made available to the public in the course

32 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

of a trial, the party seeking to limit public access must meet

a higher threshold to justify re-sealing that information. See

Poliquin v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir.

1993) (holding that “the ordinary showing of good cause

which is adequate to protect discovery material from

disclosure cannot alone justify protecting such material after

it has been introduced at trial,” and concluding that “only the

most compelling showing can justify” continued secrecy); see

also In re Violation of Rule 28(D), 635 F.3d 1352, 1358 (Fed.

Cir. 2011) (quoting Poliquin within approval).

We also require parties to show “compelling reasons” to

justify sealing documents attached to dispositive motions and

other filings that relate to the merits of a case, even when

those documents were produced pursuant to a sealing order.

Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1180

(9th Cir. 2006) (holding that “[t]hose who seek to maintain

the secrecy of documents attached to dispositive motions

must meet the high threshold of showing that compelling

reasons support secrecy” (internal quotation marks omitted));

see also Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d

1092, 1101 (9th Cir.), cert. denied, 137 S. Ct. 38 (2016)

(applying the same standard to documents attached to

motions “more than tangentially related to the merits of a

case”). This higher standard is warranted because, “[u]nlike

private materials unearthed during discovery, judicial records

are public documents almost by definition, and the public is

entitled to access by default,” a fact that “sharply tips the

balance in favor of production when a document, formerly

sealed for good cause under Rule 26(c), becomes part of a

judicial record.” Kamakana, 447 F.3d at 1180; cf. Oregonian

Publ’g Co., 920 F.2d at 1466 (stating that, where the First

Amendment right of access applies, public access can be

restricted only where specific factual findings show that

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 33

“(1) closure serves a compelling interest; (2) there is a

substantial probability that, in the absence of closure, this

compelling interest would be harmed; and (3) there are no

alternatives to closure that would adequately protect the

compelling interest”).

Although we read Ground Zero’s briefs as challenging the

restrictions on its dissemination of the materials filed, rather

than the district court’s sealing decision as such, caselaw

analyzing when it is appropriate to seal presumptively public

court records is nevertheless instructive. The district court

imposed its restrictions on Ground Zero’s speech as part of an

order that not only withdrew the erroneously filed documents

from the public judicial record but also sealed two of Ground

Zero’s briefs relating to its motion for a preliminary

injunction.9 We have in the past applied the “compelling

reasons” standard in evaluating whether to seal documents

attached to preliminary injunction briefing where the issues

discussed were more than tangentially related to the merits of

a case. See Ctr. for Auto Safety, 809 F.3d at 1102.

Relying on these precedents, we hold that, to impose

continuing restrictions on Ground Zero’s public

dissemination of documents that the Navy inadvertently made

public, a court must identify “a compelling reason [to impose

the restriction] and articulate the factual basis for its ruling,

without relying on hypothesis or conjecture.” Kamakana,

447 F.3d at 1179 (quoting Hagestad v. Tragesser, 49 F.3d

1430, 1434 (9th Cir. 1995)). We adopt this rigorous standard

from a related context to reflect the First Amendment

9

The government later agreed that one of these briefs could be

unsealed in its entirety (although it appears still to be sealed on the

electronic docket), and that the other could be filed with redactions.

34 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

interests implicated when the Navy posted the documents on

the public docket. We decline to accept the analogy to classic

prior restraints, which are almost never acceptable, see N.Y.

Times Co., 403 U.S. at 714, because Ground Zero remains a

litigant whose use of documents acquired through litigation

is properly subject to some degree of control by the district

court.

National security concerns can, of course, provide a

compelling reason for shrouding in secrecy even documents

once in the public domain. See Al-Haramain Islamic Found.,

Inc. v. Bush, 507 F.3d 1190, 1193 (9th Cir. 2007) (permitting

the government to seal a Top Secret classified document

pursuant to the common law state secrets privilege, despite its

prior dissemination to the public); but see Barre v. Obama,

932 F. Supp. 2d 5, 8–9 (D.D.C. 2013) (distinguishing Al-

Haramain in a case in which the government inadvertently

posted information on the public docket and made no effort

to remove it). Still, what we have here are not Top

Secret—or even classified—documents.10 To determine

whether national security concerns justify continuing

restrictions on Ground Zero’s public speech here, more

analysis is needed than occurred in the district court.

Although the district court considered declarations the

Navy submitted in opposition to Ground Zero’s motion to

unseal, it did not make specific findings, either in its initial

sealing order,or during its ruling on Ground Zero’s motion to

unseal, as to why Ground Zero may properly be prohibited

from further disseminating the documents at issue. It is not

10

With respect to the administrative record, there are two types of

controlled unclassified information at issue: UCNI and “critical

infrastructure security information.” See 10 U.S.C. § 130e(c).

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 35

enough that the documents could have been protected from

disclosure in the first instance, or that the documents

“implicate national security” (emphasis added), in some

vague sense. Any restriction of Ground Zero’s public speech

at this point must be justified by specific facts showing that

disclosure of particular documents would harm national

security. Relevant to this assessment will be the fact that the

documents are not classified, and the extent to which the

information they contain already has been publicly disclosed.

The district court’s restrictions on Ground Zero’s ability

to use the inadvertently released information in this litigation

are not subject to the same constitutional scrutiny, however.

The district court permitted Ground Zero to retain its copies

of the inadvertently filed documents for purposes of

appealing the First Amendment issue, but did not permit

Ground Zero to cite the disputed documents “during summary

judgment or trial” regarding its NEPA claims. In doing so,

the district court in essence required Ground Zero, in making

its NEPA arguments, to rely only on what the court

considered the proper public administrative record. See, e.g.,

Animal Def. Council v. Hodel, 840 F.2d 1432, 1438 (9th Cir.

1988), amended, 867 F.2d 1244 (9th Cir. 1989) (order)

(holding, in a NEPA case, that “the district court properly

limited review to the administrative record”). In ruling on the

parties’ motions for summary judgment, for instance, the

court noted that “[i]nadvertent disclosure for purposes of

litigating these motions does not demonstrate the Navy was

improper in its earlier withholding” during the environmental

review process.

Our caselaw interpreting NEPA’s public disclosure

requirement indicates that the parties and the court are to

consider only information required to be disclosed under

36 GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY

FOIA. See SLOMFP, 635 F.3d at 1116. Ground Zero does

not now argue that the information redacted in the

replacement administrative record was improperly designated

UCNI or that, absent the government’s mistake, Ground Zero

would have been entitled to it as part of the public

administrative record. As there has been no relevant

challenge, we express no view on the merits of the district

court’s conclusion regarding the scope of the administrative

record relevant to the NEPA inquiry. We do note that, on

remand, the court retains its ordinary authority to determine

the content of the administrative record properly before it

with regard to the issues presented, in accordance with the

relevant statutes and the Federal Rules of Evidence and

Procedure. See, e.g., United States v. W.R. Grace, 526 F.3d

499, 508–09 (9th Cir. 2008) (en banc) (explaining the district

court’s inherent “authority to enter pretrial case management

and discovery orders designed to ensure that the relevant

issues to be tried are identified”); Animal Def. Council,

840 F.2d at 1438 (concluding that the district court properly

limited review to the administrative record and refused to

permit discovery); cf. Al-Haramain, 507 F.3d at 1204–05

(concluding that, where a document was subject to the state

secrets privilege, the court was required to treat the

previously disclosed evidence as unavailable).

Accordingly, we vacate the district court’s November 9,

2012 and July 29, 2013 orders pertaining to Ground Zero’s

use of the disputed documents and remand for further

proceedings consistent with this opinion.

CONCLUSION

The Navy violated NEPA’s public disclosure requirement

by not revealing that the Safety Board withheld approval of

GROUND ZERO CENTER V. U.S. DEP’T OF THE NAVY 37

its plan for the construction of EHW-2. The Navy further

violated NEPA by withholding the now-disclosed portions of

the appendices to the EIS. Both disclosure errors were,

however, harmless. In all other respects, the Navy satisfied

NEPA’s requirements. We therefore affirm the district

court’s order granting the Navy’s motion for summary

judgment.

We narrowly construe the district court’s order restricting

Ground Zero’s use of portions of the record. Even with this

reading, it is not clear that the district court’s order comports

with the First Amendment. We therefore remand for further

proceedings to determine whether, under the standard we

announce today, restrictions on Ground Zero’s speech are

warranted.

The district court’s grant of summary judgment to the

Navy is AFFIRMED. We VACATE AND REMAND the

district court’s order concerning Ground Zero’s use of the

inadvertently filed portions of the record for further

proceedings consistent with this opinion.