Petition for Writ of Certiorari — Protect Key West, Inc. v. Perry

931363 MAR 119%

Ober te VF jae we

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

PROTECT KEY WEST, INC., a Florida Not-for-Profit

Corporation, d/b/a Last Stand,

Petitioner,

vs.

LES ASPIN, SECRETARY OF DEFENSE OF THE

UNITED STATES OF AMERICA, LAWRENCE H.

GARRETT, III, AS SECRETARY OF THE NAVY,

FRANK B. KELSO, ADMIRAL, AS CHIEF OF NAVAL

OPERATIONS, UNITED STATES NAVY,

Respondents.

Petition for Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

JOEL H. SACHS

Counsel of Record

KEANE & BEANE, P.C.

Attorneys for Petitioners

1 North Broadway

White Plains, New York 10601

(914) 946-4777

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QUESTIONS PRESENTED

1. Is 28 U.S.C. 8 2412(d)(. (B) jurisdictional in nature,

so that a party seeking an award of fees and other

expenses need not appeal a District Court's denial of

costs and attorneys’ fees which was made prior to the

filing of any fee application under 28 U.S.C. § 2412

(d)(1)(B)?

2. Is it reversible error to deny a fee application under

28 U.S.C. 8 2412 (d)(1)(A) and 28 U.S.C. 8 2412 (d)(1)(B)

where the District Court has found the agency's actions,

despite a theory of “cure,” violated federal law?

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TABLE OF CONTENTS

Page

SPRUNG PING bik vnicictiiiciteticeie i

PRT CD | hisistiiteesiineeee ii

fa NTE TE REIL Me eS iii

NN TUE i sikcisattsicinntes tate areas 2

Statement Of FtasiWictiaes ...0cesccccsecescesccacnecccceccescessacess 2

OEE III eiiesitccicscrsccratecictenioeriaee ee 2

SPORTS OT GN CW asi iscicavincctcdechsserasickeateeies cue 2

Reasons For Granting The Writ ...............cccccccceeeeeeeeess 5

A. Timeliness of the Appeals .................ccccccosecessees 5

B. Substantial Justification ..........00....cceccceeeeeceeeees 8

IIE oc.oviccocneshinsibusducrdandniammes ce 10

iii

TABLE OF CITATIONS

Cases Cited: page

Action on Smoking and Health v. C.A.B.,

724 F.2d 211 (D.C.Cir. 1984) .........cceeeeeceeeeeeeeeeeeees 6

Allen v. Secretary of Health & Human Services,

781 F.2d 92 (6th Cir. 1986) ............ceeceseeeeereeeeeeee ees 6

Brock v. Writers Guild of America, West, Inc.,

762 F.2d 1349 (9th Cir. 1985) ........... cece eee wees 6, 7

Clifton v. Heckler,

ee , RUDEIIDD covcceseveccovccceseneseossees 6

Commissioner, I.N.S. v. Jean,

Sn cpanecadecorenececonets 8

Damato v. Sullivan,

Sy ee EE CUE COE, REE) vccccccecccccccccesececesconcess 6

James v. U.S. Dept. of Housing and Urban Develop.,

783 F.2d 997 (11th Cir. 1986)............. cc ceeeeeeeeee sees 7

Myers v. Sullivan,

916 F.2d 659 (11th Cir. 1990)...............ceeeeee eee 6, 7

Olson v. Norman,

CORD, BOMEED cccccocccscncevccsvecceseesseuss 6

Pierce v. Underwood,

3. ccnepuscesuseccodusesecerecen 8

page

Rawlins v. United States,

ee A en 6

Skip Kirchdorfer, Inc. v. United States,

Ue Fe FOB COA, Be acssciinvciesncsscccsecocssiecsve: 7

Statutes Cited:

28 U.S.C. A. § 1254(1) (West 1903)......cccccccccccccccccccccee 2

SS U.S.C. A. & 1SS1 (WSR LGC) cceccccesseveecescccsseseces 2.3

28 U.S.C. A. § 2412 (West Supp. 1992) ...................0.. 2

28 U.S.C. A. § 2412(d)(1)(A) (West Supp. 1992) ........... 5

28 U.S.C. A. 8 2412(d)(1)(B) (West Supp. 1992)... 3, 5, 6

28 U.S.C. A. § 2412(d)(2)(D) (West Supp. 1992)........... 5

42 U.S.C. A. § 4331 et seq. (West 1977)................00000 9

iv

APPENDIX

Review Sought: page

Judgment of the United States Court of Appeals for

the Eleventh Circuit Filed December 1, 1993 ...... la

Order of the United States District Court for the

Southern District of Florida Filed August 13,

Order of the United States District Court for the

Southern District of Florida Filed May 26,

Other:

Order of the United States District Court for the

Southern District of Florida Filed April 10,

Opinion and Order of the United States District

Court for the Southern District of Florida

i OE EE, BEE vidctiiddiedtsedscdinepcstsbbesivencavesaces 9a

Demand for Relief from Petitioner's Complaint

Fidel Frame 4. 1GG1 .ncccccccsccscccccescocssevrsesvesscesscesens 40a

Defendants’ Motion for Amendment of March 30

Order Filed April 9, 1993............ sccccereesesscssesseees 4la

Pertinent text of 28 U.S.C. A. § 2412 (West Supp.

GOED ciccevccevosicceseccestecncucnsddasvesstecioaniaresevinedsanendes 45a

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1993

PROTECT KEY WEST, INC., a Florida Not-for-Profit

Corporation, d/b/a Last Stand,

Petitioner,

vs.

LES ASPIN, SECRETARY OF DEFENSE OF THE

UNITED STATES OF AMERICA, LAWRENCE H.

GARRETT, III, AS SECRETARY OF THE NAVY,

FRANK B. KELSO, ADMIRAL, AS CHIEF OF NAVAL

OPERATIONS, UNITED STATES NAVY,

Respondents.

Petition for Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States District Court,

Southern District of Florida, in favor of Petitioner but

denying costs and attorneys’ fees, is reported at 795

F.Supp. 1552 (S.D.Fla. 1992).

The decisions of the United States Court of Appeals

for the Eleventh Circuit, affirming without opinion, are

reported at 11 F.3d 166 (11th Cir. 1993).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Eleventh Circuit was entered on December 1,

1993. The jurisdiction of this Court is invoked under 28

U.S.C. A. § 1254(1) (West 1993).

STATUTE INVOLVED

28 U.S.C. A. § 2412 (West Supp. 1992). The

pertinent text of the statute is set forth in the appendix

beginning at page 45a.

STATEMENT OF THE CASE

Petitioner is a non-profit environmental organization

with approximately 600 members, located in Key West,

Florida. Petitioner filed suit against Respondents,

alleging violations of federal environmental law. The

United States District Court for the Southern District of

Florida had jurisdiction over the merits of the litigation

pursuant to the federal question statute, 28 U.S.C. A. §

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1331 (West 1993). Petitioner's suit demanded, inter alia,

“costs of [the] action, including ‘attorneys’ fees.” (A.40).

After a hearing, the District Court, on March 30,

1992, ordered and adjudged, inter alia, that

Respondents had violated federal environmental law,

that a permanent injunction should issue against

Respondents, and that “each party shall bear its own

cost and attorneys’ fees of this litigation, as Defendants’

litigation position was substantially justified.” (A.38).

Respondents subsequently moved for an “Amendment”

of the judgment. (A.41). The motion was granted ex

parte. (A.7). No appeal was taken from the District

Court's judgment, filed March 30, 1992, or from the

order amending the judgment, filed April 10, 1992.

Subsequent to the judgment’s amendment, Petitioner

timely filed, on May 14, 1992, an application for fees

and other expenses pursuant to 28 U.S.C. A. § 2412

(d)(1)('B) (West 1992) for the first time. After

Respondents filed an opposition to the application, the

District Court denied the application, reasoning that

“(bly order dated March 30, 1992, the Court found that

the defendant's [sic] litigation position was substantially

justified.” (A.5). Petitioner, on July 23, 1992, timely

filed an appeal to the United States Court of Appeals for

the Eleventh Circuit from the District Court's order

denying the application.

Petitioner then filed a motion with the District Court

seeking, inter alia, relief from the order denying the

application. After Respondents filed an opposition to the

motion, the District Court, on August 13, 1992, denied

the requested relief, reasoning “(t]he government's

es fe ee ere em ee

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theory of ‘cure,’ although ultimately rejected by this

Court, had a reasonable basis in law and fact.” (A.3).

Petitioner, on August 31, 1992, timely filed an appeal to

the United States Court of Appeals for the Eleventh

Circuit from the District Court's order denying relief.

Respondents, on appeal, raised two issues which are

pertinent to this Petition:

1) Whether the notices of appeal, filed

more than 60-days after the District

Court's final judgment, as amended, gave

the appellate court jurisdiction over the

merits of the denial of the application?

2) Whether the District Court abused its

discretion in concluding that the position

of the Respondents was “substantially

justified” within the meaning of 28 U.S.C. 8

2412?

Without opinion, the United States Court of Appeals

for the Eleventh Circuit affirmed the District Court's

denial of the application and the District Court's refusal

to grant relief from the denial. (A.1).

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REASONS FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT HAS RENDERED A

DECISION IN THIS MATTER WHICH IS N CONFLICT

WITH DECISIONS OF OTHER UNITED STATES

COURTS OF APPEAL ON THE SAME MATTER,

WHICH CALLS FOR AN EXERCISE OF THIS COURT'S

POWER OF SUPERVISION. FURTHER, THE

DECISION HAS DECIDED A FEDERAL QUESTION IN

A WAY THAT CONFLICTS WITH APPLICABLE

DECISIONS OF THIS COURT.

A. Timeliness of the Appeals

No application under 28 U.S.C. § 2412(d)(1)(B) was

made prior to the District Court's judgment on March

30, 1992, denying costs and attorneys’ fees.

Consequently, the court did not have before it the

information required by the statute, which mandates a

showing that Petitioner was “eligible to receive an

award”; the amount sought, supported by an itemized

statement; and an allegation that the position of the

United States was not substantially justified. See 28

U.S.C.A. § 2412(d)(1)(B) (West Supp. 1992).

The District Court's judgment did not mention 28

U.S.C. § 2412(d)(1)(B), nor did its reasoning comply with

the statute's requirement that fees and other expenses

be awarded unless both the government's litigation

position and the agency's action were substantially

justified. See 28 U.S.C. A. § 2412(d)(1)(A) (West Supp.

1992) and 28 U.S.C. A. § 2412(d)\(2)(D) (West Supp.

1992).

The Petitioner did not view the District Court's

judgments of March 30, 1992 and April 10, 1992,

rendered prior to any fee applice!‘on, as determinative of

the issue of fees and other expenses under 28 U.S.C. A.

§ 2412(d)(1)(B) (West Supp. 1992). Rather, in

Petitioner's view, the judgments’ denial related only to

the general request in the Complaint’s demand; no

appeal on the issue of denial of fees under 28 U.S.C. A. 8

2412(d)(1)(B) (West Supp. 1992) was possible. This view

in supported by cases citing a District Court's lack of

subject matter jurisdiction prior to a timely fee

application.

Several United States courts of appeal have held that

a court lacks subject matter jurisdiction where it

attempts to grant an award of fees under 28 U.S.C. 8

2412(d)(1)(B) absent a timely application. The Fifth

Circuit has held “that the statutory time limitation, as

an integral condition of the sovereign’s consent to be

sued, is a jurisdictional prerequisite to an award of

fees...” Clifton v. Heckler, 755 F.2d 1138, 1144-45 (Sth

Cir. 1985)(footnote omitted). Accord Allen v. Secretary of

Health & Human Services, 781 F.2d 92, 94-5 (6th Cir.

1986); Damato v. Sullivan, 945 F.2d 982, 986 (7th Cir.

1991); Olson v. Norman, 830 F.2d 811, 821 (8th Cir.

1987); Brock v. Writers Guild of America, West, Inc., 762

F.2d 1349, 1360 (9th Cir. 1985); Myers v. Sullivan, 916

F.2d 659, 666 (11th Cir. 1990); Action on Smoking and

Health v. C.A.B., 724 F.2d 211, 225 (D.C.Cir. 1984);

Rawlins v. United States, 686 F.2d 903, 914 (Ct.Cl.

1982).

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na ath DNL a ETRE SAM NS ok

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The Ninth Circuit has held that a district court's sua

sponte award of fees was reversible error. Brock, 762

F.2d at 1359-60. The court reasoned that “[slection

2412(d)(1)(B) plainly states that the filing of an

application for fees is a prerequisite to a fee award.” Id.

at 1360.

The Federal Circuit has characterized 28 U.S.C. 8

2412(d)(1)(B) as other than jurisdictional, characterizing

the thirty day period as “a ‘statute of limitations’ against

fee awards.” Skip Kirchdorfer, Inc. v. United States, 803

F.2d 711, 712 (Fed.Cir. 1986). The characterization is

echoed in James v. U.S. Dept. of Housing and Urban

Develop., 783 F.2d 997, 999 (11th Cir. 1986)(“The thirty-

day time limit for filing a fee application should serve as

a statute of limitations, not as a trap for the unwary.”).

If the Eleventh Circuit here viewed the District

Court's denial of a general request for costs and

attorneys’ fees as determinative of the issue of all fees

and costs, including those under 28 U.S.C. 8

2412(d)(1)(B), so that the District Court's judgment must

be appealed, the decision is surely a “trap for the

unwary.” But see Myers, 916 F.2d at 668 (requirement

not designed as a trap for the unwary)(citing James, 783

F.2d at 999). Such a view of the District Court's denial

of a general cost and fee demand would also counter

Congressional intent that the filing requirement of 28

U.S.C. § 2412(d)(1)(B) be interpreted broadly to prevent

unwarranted denial of fees. Myers, 916 F.2d at 671.

Where, as here, a statute mandates an application

prior to a grant, applicants are denied the benefits

Congress intended if courts can validly deny the grant

8

absent an application and without reference to the

statute. Under the reasoning affirmed by the Eleventh

Circuit, Petitioner would be forced to appeal any general

denial, although the lower court lacked any subject

matter jurisdiction over a potential application neither

referenced in a demand nor mentioned in the denial.

Likewise, a potential applicant would be forced to appeal

a sua sponte award made under other federal statutes

which allow awards of fees and costs, if the amount

awarded did not meet or exceed the potential applicant's

estimation of the amount which could be claimed under

28 U.S.C. § 2412(d)(1)(B).

Granting of the writ would thus aid applicants under

28 U.S.C. § 2412(d)(1)(B) and the courts of appeal by

defining the nature and requirements of the statute.

B. Substantial Justification

\

The District Court's orders denying Petitioner's

application are contrary to this Court's decision in

Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990).

There, this Court stated that 28 U.S.C. § 2412 (d)(1)(B)

“directs a court to determine whether the Government's

past position was substantially justified ‘on the basis of

the record (including the record with respect to the action

or failure to act by the agency upon which the civil action

is based)...” Commissioner, I.N.S., 496 U.S. at 159-60

(emphases added)(citation omitted). The decisions are

also contrary to Pierce v. Underwood, 487 U.S. 552, 566

n.2 (1988)(substantial justification is such that “a

reasonable person could think...it has a reasonable

basis in law and fact.”).

3 lit Scant she wits eRe

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The District Court's judgment belies any assertion

that the agency's actions were substantially justified

under 28 U.S.C. § 2412(d)(1)(A) and 28 U.S.C. §&

2412(d\(2\(D). The District Court found that the agency

action was “wholly inadequate” under the National

Environmental Policy Act, 42 U.S.C. A. § 4331 et seq.

(West 1977) (“NEPA”) when compared “with what is

required by law...” (A.26). Further, the agency action

“fails to meet the requirements of NEPA.” (A.27). The

court also concluded that the Respondents’ “theory of

‘cure’ in this case would violate the letter and spirit of

NEPA.” (A.31). Accordingly, the District Court issued a

permanent injunction against the Respondents.

Thus, the District Court’s denial of Petitioner's

application because “the government's theory of ‘cure,’

although ultimately rejected by this Court, had a

reasonable basis in law and fact” is in direct conflict

with Pierce. If the Eleventh Circuit affirmance was

based on Respondents being substantially justified, it is,

given the District Court's findings, clearly in conflict

with the decisions in Jean and Pierce.

Granting of the writ would therefore allow this Court

to reaffirm the requirement that a substantially justified

litigation position alone is not sufficient for a denial

under 28 U.S.C. § 2412(d). Granting of the writ would

also allow this Court to decide whether an agency action .

which is found to violate federal law is, per se, not

substantially justified.

10

CONCLUSION

Granting of the writ would clarify for the United

States courts of appeal whether 28 U.S.C. §&

2412(d)(1)(B) is jurisdictional in nature or is simply a

“statute of limitations” to be rigidly enforced. Granting

of the writ would allow the Court to affirm Plerce and

Jean, while further defining “a reasonable basis in law

and fact”.

Respectfully submitted,

Beck }. Sache.

JOEL H. SACHS

Counsel of Record

KEANE & BEANE, P.C.

Attorneys for Petitioners

1 North Broadway

White Plains, New York 10601

(914) 946-4777

Dated: February 25, 1994

la

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 92-4707, 92-4839

D.C. Docket No. 91-10054-Civ-JLK

PROTECT KEY WEST, INC., A Florida

NOT-FOR-PROFIT CORPORATION, d/b/a

LAST STAND,

PLAINTIFF-APPELLANT,

VERSUS

LES ASPIN, SECRETARY OF DEFENSE OF THE

UNITED STATES OF AMERICA, LAWRENCE H.

GARRETT, III, AS SECRETARY OF THE NAVY,

FRANK B. KELSO, ADMIRAL, AS CHIEF OF

NAVAL OPERATIONS, UNITED STATES NAVY,

DEFENDANTS-APPELLEES.

Appeals From The United States District Court

for the Southern District of Florida

(December 1, 1993)

Before FAY, Circuit Judge, DYER and REAVLEY*, Senior

Circuit Judges.

PER CURIAM: AFFIRMED. See 11th Cir. Rule 36-1.

* Honorable Thomas M. Reaviey, Senior U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.

2a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 91-10054-CIV-KING

Protect Key West, Inc.,

a Florida Not-for-Profit

Corporation, d/b/a

LAST STAND

Plaintiff,

V.

RICHARD CHENEY, Secretary of Defense

of the United States of America,

H. LAWRENCE GARRENT III, as

Secretary of the Navy, and ADMIRAL

FRANK B. KELSO, as Chief of Naval

Operations, United States Navy,

Defendants.

OMNIBUS ORDER ON PLAINTIFF'S MOTION

FOR RECONSIDERATION

THIS CAUSE comes before the Court on Plaintiffs

“Motion to Amend Application for Fees and Other

Expenses under the Equal Access to Justice Act and

Motion for Relief from Order Denying Plaintiffs

Application for Attorneys’ Fees” and “Motion for Leave to

Proceed on Appeal in Forma Pauperis.” Upon

3a

consideration, the Court hereby ORDERS AND

ADJUDGES:

1. Plaintiffs Motion to Amend be and the same

hereby is GRANTED. Plaintiffs Application for Fees and

Other Expenses Under the Equal Access to Justice Act,

filed May 14, 1992, is deemed amended for all proper

purposes to include a cost of transcripts in the amount

of $739.00.

2. Plaintiffs renewed motion for reconsideration of

this Court's order denying attorneys’ fees under the

Equal Access to Justice Act be and the same hereby is

DENIED. As set out in two previous Orders, the

government's position was substantially justified in

these proceedings. The government's theory of “cure,”

although ultimately rejected by this Court, had a

reasonable basis in law and fact. Plaintiff shall have ten

(10) days from the date of this Order to file a notice of

appeal, pursuant to Fed. R. App. P. 4.

3. Plaintiffs motion for leave to proceed on appeal in

forma pauperis be and the same hereby is GRANTED

pursuant to Fed. R. App. P. 24. The Court has reviewed

the affidavit of Anthony R. Marchione, Treasurer of

Protect Key West, Inc., and finds that the plaintiff

organization has a negative net worth. Plaintiff has no

property or other assets, and gets no income from sales.

Therefore, Plaintiff is entitled to proceed in forma

pauperis under the appellate rules.

4a

DONE and ORDERED in chambers at the United

Stated District Courthouse, Federal Courthouse Square,

Miami, Florida, on this 13th day August, 1992.

JAMES LAWRENCE KING

U.S. DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

cc: Teresa Davenport, AUSA

Pauline H. Milius, Esq.

Joel Sachs, Esq.

Leonard Sands, Esq.

Herbert Walker, Esq.

5a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 91-10054-CIV-KING

PROTECT KEY WEST, INC.., et al.,

Plaintiff,

V.

RICAHRD CHENEY, et al.,

Defendant.

ORDER DENYING PLAINTIFFS’ APPLICATION FOR

ATTORNEYS" FEES

This cause came before the court upon plaintiffs

application for attorneys’ fees.

By order dated March 30, 1992, the Court found that

defendant's litigation position was substantially

justified. It is therefore

ORKDERED, ADJUDGED and DECREED that the

instant application for attorneys’ fees be, and the same

is hereby, DENIED.

6a

DONE and ORDERED in chambers at the United

States District Courthouse, Federal Courthouse Square,

Miami, Florida, this 26th day of May, 1992.

JAMES LAWRENCE. KING

U.S. DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

cc: Teresa Davenport, AUSA

Pauline H. Milius, Esq.

Richard Eddy, Esq.

Joel Sachs, Esq.

Leonard Sands, Esq.

7a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 91-10054-CIV-KING

PROTECT KEY WEST, INC..,

a Florida Not-for-Profit

Corporation, d/b/a

LAST STAND

Plaintiff,

v.

RICHARD CHENEY, Secretary of Defense

of the United States of America,

et al.,

Defendants.

/

ORDER OF CLARIFICATION

THIS CAUSE came before the Court on Defendants’

Motion for Amendment of this Court's Order of March

30, 1992.

Upon consideration, the Motion is hereby GRANTED

in part. The final sentence on page four is amended to

state, “The Court finds that this project, known as Peary

Court, is a major federal action.”

8a

DONE and ORDERED in chambers at the United

States District Courthouse, Federal Courthouse Square,

Miami, Florida, on this 10th day of April, 1992.

JAMES LAWRENCE KING

U.S. DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

ce:

ALL COUNSEL OF RECORD

9a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 91-10054-CIV-KING

PROTECT KEY WEST, INC.,

a Florida Not-for-Profit

Corporation, d/b/a

LAST STAND

Plaintiff,

V.

RICHARD CHENEY, Secretary of Defense

of the United States of America,

H. LAWRENCE GARRETT III, as

Secretary of the Navy, and ADMIRAL

FRANK B. KELSO, as Chief of Naval

Operations, United States Navy,

Defendants.

/

OPINION, ORDER OF REMAND, ORDER OF

INJUNCTION, AND FINAL ORDER OF DISMISSAL

WITH JURISDICTION RETAINED TO ENFORCE

THIS CASE was tried, by agreement of the parties

and pursuant to Fed. R. Civ., P. 65 (a)(2), on March 12,

1992 in a non-jury final hearing on all issues. This

Memorandum Opinion, incorporating findings of fact

and conclusions of law and final decree, is entered after

10a

careful consideration of the record, the evidence

introduced during the trial, the oral argument of

counsel, and the briefs of the parties.

Plaintiff Protect Key West, Inc., d/b/a Last Stand

("Protect Key West") filed this action on June 4, 1991,

against Defendants Richard Cheney, Secretary of

Defense of the United States of America; H. Lawrence

Garrote III, as Secretary of the Navy; and Admiral Frank

B. Kelso, as Chief of Naval Operations, United States

Navy. The Complaint alleged that the Defendants had

violated the National Environmental Protection Act

("NEPA"), 42 U.S.C. 88 4321 et seq.; regulations of the

Councii on Environmental! Equality ("CEQ") for

implementing NEPA, 40 C.F.R Part 1500 et seq.;

regulations of the United States Department of Defense

for implementing NEPA, 32 C.F.R. Part 214; regulations

of the United States Department of the Navy for

implementing NEPA, 32 C.F.R Part 774; and the Federal

Coastal Zone Management Act of 1982 ("CZMA"), 16

U.S.C. 88 1451 et seq. The Complaint sought an

injunction against the further governmental action until

the Navy complied in full with the regulations set out

above.

The alleged violations center around the Navy's

preparation of an Environmental Assessment ("EA")

dated September, 1988 for a housing project known as

Peary Court, located in the City of Key West, Florida (the

"City"). Plaintiff contends that the EA, the Finding of No

Significant Impact ("FONSI") published in a City

newspaper on February 6 through 8, 1989, and the

Navy's decision-to build on Peary Court violate the letter

and spirit of NEPA, regulations implementing NEPA and

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CZMA. The Navy answers that all of its actions and

decisions are in full compliance with federal law.

On December 17, 1991, Plaintiff filed a motion for

preliminary injunction. By order dated December 19,

1991, this Court referred the motion to Magistrate

Judge Stephen T. Brown for a Report and

Recommendation. After an evidentiary hearing on the

motion on February 6 and 7, 1992, Magistrate Judge

Brown recommended denial of preliminary injunctive

relief on February 25, 1992. Plaintiff subsequently

moved for a temporary restraining order ("TRO"), alleging

that "mobilization" was commencing and construction

imminent. This Court granted the TRO on March 6, and

set a trial on the merits for March 12, 1992.

At the trial, the parties introduced documentary

evidence, including the administrative record ("AR"), and

record from the hearing held by Magistrate Judge

Brown. The Court heard from Dennis Wardlow, Mayor

of the City of Key West, as amicus curiae in his personal

capacity.

FINDINGS OF FACT

I. BACKGROUND

At issue in this cause is the construction of 160

homes for military personnel on Peary Court, a 28.65-

acre parcel of land located in Key West, Florida. (AR 11)

It is a part of the Trumbo Point Naval Air Station

situated east of White Street and south of Palm Avenue,

across from the main entrance to Trumbo Annex.

12a

Although not included in the City's Historic District, the

property abuts the District on two sides. (AR 45, 125)

The site was used as United States Army barracks

for approximately 120 years, from 1831 to 1951. (AR

180) In 1951 the barracks were demolished and

housing for Navy personnel was constructed on the site

("Wherry Housing"). In 1974, Wherry Housing was

demolished and most of the site was cleared, with the

exception of the streets and some concrete foundations.

(AR 63) The land is currently vacant except for a small

Credit Union building which occupies 0.8 acres. (AR 8)

From 1974 through 1985, Naval Air Station Key West

("NAS Key West") granted the City a series of one-year

leases. In 1985, the Navy granted the City a five-year

lease. (AR 8, 63,114) The City utilized the propérty

primarily for recreational purposes, constructing a

central ballfield on the property shortly after obtaining

the license and a smaller ballfield several years later.

(AR 63) In addition, the City requested and was given

permission to use the site for a recycling center, among

other things. (AR 8) When the City's license expired in

November, 1990, the Navy requested the City to vacate

the site. (AR 144)

The administrative record reflects the Navy's

longstanding plans to reconstruct military housing on

the site (AR 10: Master Plan for Naval Complex, dated

Sept. 1981) On July 1,1987, the Navy and Coast Guard

entered into an agreement by which the Coast Guard

would seek to fund the construction of 226 units of

family housing on the Navy-controlled property. (AR 26)

The Navy would build, manage, and maintain the units

13a

and they would be made available to families of all the

military services in the Key West area. (AR 13)

Thereafter the Navy determined to construct such

housing for some 160 families. (AR 13, 26, 31)

The Court finds that this project, known as Peary

Court, is a major federal action that will significantly

affect the environment.

In preparation for the Peary Court Project, the Navy

prepared an Environmental Assessment ("EA”). (AR 45)

The sufficiency of this EA is the focus of the present

action. A draft EA was prepared in April 1988. (Exh. T,

#8) The final EA is dated September 1988. (AR 45)

On December 22, 1988, the Chief of Naval

Operations informed the Naval Facilities Engineering

Command in Charleston, South Carolina, that the EA

had been reviewed and a determination made that

preparing an Environmental Impact Statement ("EIS")

was not required. (AR 58) Accordingly, the direction was

given to publish Notice of Finding of No Significant

Impact ("FONSI") and the availability of the EA in the

local Key West newspaper. (AR 58, 61) This publication

was made in the Key West Citizen on February 6, 7, and

8, 1989. (AR 67) The notice stated that an EA had been

prepared, and that the Navy would forego preparation of

an EIS. The notice also specified how interested parties

could obtain a copy of the EA.

Only one request was made for the EA. Then-

Commissioner Harry Powell requested and received a

copy of the EA on February 8, 1989. (AR 73) No written

l4a

comments were submitted to the Navy regarding the EA

or FONSI in response to the publication.

At the public hearing held on the proposed project on

May 31,1990, a number of people attended and spoke,

including Commissioner Harry Powell, Sharon Wells,

Mayor Anthony Tarracino, and Theodore Strader. (AR

107)

Il. LEAD AGENCY

The Court finds that the Navy is the appropriate lead

agency for the Peary Court project. The Navy owns the

property and is ultimately responsible for its disposition.

Ill. THE EA

The EA is an 11l-page document including three

pages of maps. It consists of an introduction, four

discussion sections, and a conclusion. (AR 45) The EA

is attached as an exhibit hereto.

The EA first discusses the need for housing, noting

among other things that increased tourism and lack of

developable land in the Florida Keys had substantially

increased rents and adversely affected housing

availability in the Key West area. (AR 45)

Section II is entitled "Alternatives." The EA first

describes the proposed action, addresses alternative

sites, and explains why "no action” has been eliminated.

(AR 45) |

oe neers

————————

15a

Section III of the EA is called "Affected Environment"

and describes the site physically, explaining the

environmental conditions of Key West generally. (AR 45)

Section IV, "Environmental Consequences," lists nine

areas of environmental effect (Biological Resources,

Noise, Air, Hydrology, Cultural Resources, Traffic and

Circulation; Land Use and Visual Resources,

Socioeconomics, and Energy Resources). Each of these

consists of one-sentence to one-paragraph statements

that there will be no significant adverse result from the

project. (AR 45)

Finally, the EA concludes that the project would not

significantly affect the environment. (AR 45)

Plaintiff has alleged several deficiencies in the EA,

addressed below.

IV. STORMWATER RUNOFF

In the "Land Use and Visual Resources" section, the

EA states that "permits relating to storm water... will

be obtained." (AR 45) In the "Hydrology" section, the EA

notes that "[djrainage can be handled through the

existing system with minor improvements." (AR 45)

While the EA was being prepared, the Navy, In

August, 1988, met with the City Engineer for the City to

discuss the existing drainage at the Peary Court site and

other requirements. (AR 236, Part 7-147) In addition,

the Navy had a Site Engineering Investigation Report

prepared for the Peary Court site which included a

topographic survey, geotechnical investigation, utilities

16a

investigation, and a storm water management report.

This report is a part of the Navy's Request for Proposal

("RFP"), through which the Navy conveys to the design

and construction contractors the technical specifications

that must be met. (AR 236, Part 7)(not dated) The

stormwater management report states that a surface

water permit will be needed from the South Florida

Water Management District ("SFWMD") and that the

storm drainage must be designed and constructed in

accordance with the "Basis of Review for Surface Water

Management Permits Applications" within the SWFMD.

(AR 236, Part 2-19, Part 7-18) The SFWMD is charged

with identifying the significant environmental features of

the project which relate to water resources, evaluate the

impact of the project on chose water resources, and

either issue or deny a permit application. (AR 236, Part

7-199) SFWMD's responsibility in the permit process is

to ensure that the applicant's proposed design will not

be harmful to water resources or inconsistent with the

public interest. (AR 236, Part 7-193) The Navy's

contractor has applied for a permit and has submitted

its drainage system design to the SFWMD which is

completing its review.

The Navy has still not conducted any hydrology

studies addressing issues of drainage, possible

contamination of stormwater runoff, possible

contamination of Florida Bay and impact on the Lens

aquifer underlying Peary Court. The Navy regards these

as design rather than environmental issues, to be

resolved when construction is underway.

Puriegton Howanitz, Director of Public Works for the

City and an expert in water, water quality, stormwater,

17a

and drainage systems, has expressed concern about

stormwater runoff in the vicinity of Peary Court. In

particular, there is flooding of Palm Avenue at the

intersection of White Street from 1980 to the present as

a result of stormwater runoff. (Howanitz Aff., Exh. 5, at

1-3) Howanitz testified that the runoff will be

exacerbated if Peary Court is built. (Howanitz Deposition

at 34, 60-62) Theodore C. Strader, an expert in City

Planning, concurs. (Strader Deposition, Exh. 9, at 69-

70; Exh. BB, at 10-11, 14-15) The construction of

houses and parking areas will likely contaminate the

Lens aquifer. (Exh. BB, at 18-25)

V. HISTORIC DISTRICT

In the Cultural Resources section, the EA states that

"[clompliance with requirements for juxtaposition of new

construction with the Historical District will be

ensured." (AR 45) The EA also states that the Historic

District will be taken into consideration in the design of

the housing units, under "Land Use and Visual

Resources.” (AR 45)

During 1988, meetings and discussion of building

plans were held between representatives of the Navy and

the City, which included members of the Historical

Architectural Review Commission ("HARC") and the

Historic Florida Keys Preservation Board ("Preservation

Board"). (AR 52, 53, 54, 66, 83, 89) The Navy now takes

the position that the Peary Court project's compatibility

with the Historic District has been assured through

coordination between the Navy and the Florida State

Historical Preservation Office ("SHPO"). (AR 91, 92, 100,

18a

102, 107, 113-4, 123, 125, 135, 137, 149, 152, 162,

167, 176, 178-79, 181-82, 184-85, 193 211, 228-29)

In accordance with § 106 of the NHPA, the Navy

entered into a Memorandum of Agreement ("MOA") with

SHPO and the Advisory Council in November 1990. (AR

149) Among other things, the Navy agreed that

archeological and traffic studies would be prepared; that

SHPO and the City would review the proposed housing,

landscaping, and road improvement plans; and that the

architectural design of the proposed housing would be

compatible with the adjacent historic district. (AR 149)

After this suit was filed, and in accordance with the

MOA, the Navy forwarded the project design to the City

and SHPO for review on November 5, 1991. (AR 224,

225) Comments were returned on December 20, 1991.

(AR 231) The Navy took the SHPO/City comments into

account, including a meeting with SHPO staff on

January 17, 1992. (Exh. R; Exh. 2) A few weeks ago, on

February 18, 1992, SHPO responded that the project

was "consistent with the Secretary of Interior's

Standards for Rehabilitation ." (Exh. 24)

Sharon L. Wells, an expert in history and historic

preservation, has said that the architecture of the Peary

Court project is incompatible with the Historic District.

(Wells Aff., Exh. 12, at 54) She stated that added

vehicles from the families living in Peary Court will

exacerbate traffic conditions in the Historic District.

(Wells Aff. at 8) Eugene E. Burr, an expert in planning

and architecture, believes that the changed traffic

patterns will have a significant impact upon the Historic

District. (Burr Deposition, at 41-43)

19a

VI. ALTERNATIVE SITES

In terms of alternatives to the Peary Court site, the

EA states simply:

B. Locate on another site

This alternative was rejected because there

is no other Navy-owned land available that

has the advantages of the preferred site.

Non-Navy land is practically non-existent

and would require the expenditure of

Capital funds for land purchase.

(AR 45)

Plaintiff complains that the Navy did not adequately

take into account the alternatives to building at Peary

Court. The Navy prepared a Case Alternative Report

which analyzed all reasonable alternatives in the Key

West area. (AR 114)(not dated) The report considers

sixteen possibilities to provide the required housing,

including Peary Court and other potential sites, as well

as alternative means of obtaining housing (e.g.,

purchase of existing housing). (AR 114) In August 1990.

this report was distributed for review to SHPO, NAS Key

West, the City, HARC, the Historic Florida Keys

Preservation Board, and the Advisory Council on

Historic Preservation. (AR 113, 114)

Vil. TREES

Under Biological Resources, the EA notes and the

Court finds that the only substantial vegetation on the

site is trees; that no threatened or endangered species of

20a

plant life or wildlife occupy the site; and that no

wetlands will be impacted. (AR 45)

The Navy states that as early as October 1988 made

a commitment to preserve the trees on the site and so

notified HARC. (AR52) The Navy's contractor will be

required to build around existing trees at Peary Court,

and all protected trees will remain undisturbed. (AR

234)

A number of the Plaintiffs affiants expressed

concern that the Peary Court project could result in the

loss of valuable "specimen trees." (Wells Aff. at 6-7;

Burns Aff. at 3; Stewart Aff. at 3)

VIII. TRAFFIC

The EA states that there will be an increase of

approximately 240 vehicles utilizing the streets in and

around Peary Court, but that there should be no

significant increase in traffic congestion because the

roads will be relocated and realigned. (AR 45)

The City submitted several proposed traffic

circulation plans to the Navy which were duly

considered. (AR 54, 66) The City’s proposal to move the

Palm Avenue entrance and exit was endorsed by NAS

Key West. (AR 54) After Plaintiff filed this suit, the Navy

in October 1991 produced a document called “Traffic

Impact Study for Peary Court Housing Area Trumbo

Point Annex NAS Key West, Florida” (“Traffic Study”),

which concluded that traffic conditions would improve

on White Street and worsen slightly on Palm Avenue,

that the proposed design would reduce cut-through and

2la

commercial traffic while adding a small amount of

residential traffic in the area of White and Southard

Streets, and that the only significant traffic effect of the

project would be the reduction of traffic on Southard

Street. (AR 229) This Traffic Study, which was

conducted four months after the litigation was

commenced, was distributed for review to SHPO, NAS

Key West, the City, and the Advisory Council on Historic

Preservation. (AR 226-28)

David A. Ornstein, A.I.C.P., an expert in planning,

testified that Palm Avenue, between North Roosevelt

Boulevard and White Street, was overburdened with

traffic in 1987 and has the State's lowest level of service

at present. (Ornstein Aff., Exh. AA, at 11-14; Ornstein

Deposition, at 35) It was his opinion that the addition of

traffic from the new families will have a significant

impact on the already overburdened Palm Avenue.

(Ornstein Aff. at 14, Strader AFF., Exh. BB, at 3-4)

Mr. Strader testified that the Navy Study is

inaccurate because normal traffic flows during the study

had been interrupted for unrelated highway

construction along Roosevelt Avenue, making the Traffic

Studies’ figures unreliable. Further, Strader states that

the negative traffic impact in this area is unavoidable.

Palm avenue cannot be widened because it flows into

the narrow Palm Avenue Bridge. (Strader Aff. at 5, 8-10)

IX. PROTECTION OF ARCHEOLOGICAL REMAINS

As agreed in the MOA, an archeological survey was

carried out pursuant to Department of Interior

procedures. (AR 181, "Executive Summary") (dated Mar.

22a

6, 1991) The report of the investigation called for

preservation and maintenance of an area that had been

the previous site of a cemetery , a well at cistern 10, and

an area of suspected wells under the loop road. (AR 181

at 38, 39; AR 182) As a result of this archeological

survey, the cemetery will be protected. (AR 181, 182)

SHPO gave its approval and concurred in the matter in

March, 1991 (AR 184). Plaintiff agrees that its concerns

have been satisfied. (Burr Deposition, Exh. 3, at 34;

Wells Deposition, Exh. 12, at 32-33)

CONCLUSIONS OF LAW

I. STANDARD OF REVIEW

Before the Court undertakes a substantive review of

the requirements of NEPA, it is necessary to determine

the appropriate standard of review. The Eleventh

Circuit has reviewed a federal agency's decision not to

prepare an Environmental Impact Statement under "a

standard of reasonableness," specifically rejecting the

more narrow "arbitrary and capricious” standard. See

C.A.R.E. Now, Inc, v. Federal Aviation Admin., 844 F.2d

1569, 1572 (11th Cir.), reh'g denied en banc 854 F.2d

1326 (1988). The court concluded that NEPA required a

higher level of review than that ordinarily employed in

‘ reviewing agency action under the Administrative

Procedure Act. ! Id, at 1572-73 n.3. Using that level of

1 5 U.S.C. 8 706(2)(A) provides that the "reviewing court shall .

. . Set aside agency action, findings and conclusions found to be --

arbitrary, capricious, and abuse of discretion or otherwise not in

accordance with law."

23a

scrutiny, the court found that the Federal Aviation

Administration's issuance of a Finding of No Significant

Impact for an airport runway extension project was

reasonable, setting out its mission by stating: "[OJur

task is not to choose the best alternative, but to

ascertain that the FAA made a ‘reasoned choice’ among

these alternatives." Id, at 1574. The court analyzed the

merits of each proposed alternative considered by the

FAA before the agency reached its conclusion. Thus,

while the court accorded broad discretion to the agency

in selecting the best option, the procedure by which that

decision was made was subjected to review. The FAA

was compelled to justify the reasoning and factual

conclusions contained in its EA and subsequent FONSI.

Since C.A.R.E. was decided, the Supreme Court has

held in March v. Oregon Natural Resources Council, 109

S. Ct. 1851 (1989), that the appropriate standard of

review of an agency's determination not to prepare a

supplemental EIS is the "arbitrary and capricious"

standard. The Eleventh Circuit subsequently adopted

this standard for determining the adequacy of an EIS.

See North Buckhead Civic Ass'n v. Skinner, 903 F.2d

1533, 1538 (11th Cir. 1990).

In practice, the standards tend to merge. As the

Supreme Court has noted, the difference between the

two standards is "not of great pragmatic consequence.

[Ojur decision today will not require a substantial

reworking of long-established NEPA law." Marsh. 109 S.

Ct. at 1861 n.23 (citations omitted); see also Manasota-

88, Inc. v. Thomas, 799 F.2d 687, 692 n.8 (11th Cir.

1986) (difference between standards is “often difficult to

discern"). Under either standard, the reviewing court

24a

must "ensure that agency decisions are founded on a

reasoned evaluation of the relevant factors."" Marsh, 109

S. Ct. at 1861.

The Court's role in this case is thus carefully

circumscribed. The merits of the Peary Court proposal

per se are not before the Court. Nor may this Judge call

into question any reasonable agency methodologies used

in arriving at its conclusion. Rather, the Court's review

is limited to ensuring that the process that produced the

result complies with NEPA. The Court is obligated to

scrutinize the analysis and conclusions reached in the

EA for evidence of such compliance.

Il. EVALUATION OF THE ENVIRONMENTAL

ASSESSMENT AND FONSI

A. Inadequacy of Environmental Assessment

The original EA prepared for the Peary Court Project

consists of eight typewritten pages, exclusive of three

area maps, with just over two pages devoted to

"Environmental Consequences." Each of the potential

environmental impacts addressed therein is dismissed

in conclusory "findings," without further discussion or

even citation.2 The FONSI itself simply restates the

conclusions of the EA. (AR 67)

2 The EA ts attached to this Order as an exhibit. Unnumbered

pages 8 and 9 contain the Navy's discussion of environmental

consequences. The impacts are dismissed in short paragraphs of no

more than a few sentences. The Navy makes the following

statements, with little or no further elaboration:

25a

The District of Columbia Circuit has established four

useful criteria for reviewing an agency decision to forego

preparation of an EIS: (1) whether the agency took a

"hardlook" at the problem; (2) whether the agency

identified the relevant areas of environmental concern;

(3) as to the problems studied and identified, whether

the agency made a convincing case that the impact was

insignificant; and (4) if there was impact of true

significance, whether the agency convincingly

established that the changes in the project sufficiently

reduced it to a minimum. See Cabinet Mountains

A. Biologic Resources. "No significant biologic impacts would result

from construction on this site.”

B. Noise. “There will be no significant increase in noise generated by

this project.”

C. Air. “There will be no significant increase in air pollution due to

the proposed action.”

D. Hydrology. “Drainage can be handled through the existing

system with minor improvements.”

E. Cultural Resources. “Because there are no significant cultural

resources on the land proposed for the action, no significant impacts

to cultural resources are expected. Compliance with requirements

for juxtaposition of new construction with the Historical District will

be ensured.”

F. Traffic and Circulation. "Although there will be an increase in

approximately 240 vehicles utilizing the streets and intersections

around Peary Court, there should be no significant increase in traffic

congestion.”

26a

Wilderness vy. Peterson, 685 F.2d 678, 682 (D.C. Cir.

1982\(citation omitted).

Carefully comparing the procedure followed by the

Navy in preparing the EA on Peary Court with what is

required by law, see id, at 682, leads to the inescapable

conclusion that the September 1988 EA was wholly

inadequate. Far from the requisite "hard look," the Navy

barely took any look at the environmental consequences

of the project in the EA. Because the EA does not evince

a good faith effort to "study and identify” relevant

problems and alternatives, any analysis of whether the

Navy "convincingly" established the insignificance or

planned mitigation of environmental harms would be

pointless. There is no formal study, informal

documentation, or even informal agency discussion

referenced in the EA. Because the EA does not state

that any other agency or organization was involved or

consulted in its preparation, the Court concludes that

this did not occur. As to each potential impact, the EA

merely restates its own ultimate conclusion that no

problems will result from any of the contemplated

action. Alternatives are not specifically mentioned, but

for a two-sentence dismissal of the option, "Locate on

Another Site.”

The Navy prudently does not attempt to defend this

action solely on the adequacy of the EA. Indeed, the

Mayor of Key West, as amicus curiae testifying in favor

of the construction of military housing on the site,

noted: “[iJf all the Court had to look at was the original

Environmental Assessment from 1988, the Court would

have to find that the decision to reconstruct the military

27a

housing at Peary Court was arbitrary and capricious.”

Prop. Fin. Ord. and Op. at 8.

The Court finds that the 1988 EA prepared by the

Navy fails to meet the requirements of NEPA.

B. “Cure” by Subsequent Documentation

The Navy and amicus argue that the studies,

surveys, and investigations conducted after the decision

was made to proceed with the Peary Court project “cure”

any defects in the original EA. Defendants contend that

these studies, taken together, satisfy the requirement for

preparation of an EA, and support the 1988 Finding of

No Significant Impact. Plaintiff responds that the

subsequent studies, reports. analyses, performed after

the fact, cannot and do not cure the defective EA.

Plaintiff urges the Court to order the Defendants to

prepare an a full EIS, because the project will have a

significant impact on the environment.

Resolution of the controversy cuts to the heart of

NEPA’s mandate. A review of NEPA and the EA's role in

the statutory scheme is necessary before the Court

considers the Navy's theory that its subsequent studies

and analyses meet the Statutory requirements, thus

“curing” the EA.

1. NEPA and Regulations Promulgated Thereunder

The National Environmental Policy Act of 1969 sets

forth a “national policy which will encourage productive

and enjoyable harmony between man and his

environment [and] promote efforts which will prevent or

28a

eliminate damage to the environment and biosphere and

stimulate the health and welfare of man." 42 U.S.C. §

4321.

The Eleventh Circuit has recently explained the

genesis and overall approach of the Act::

Prior to the passage of [NEPA],

environmental considerations were

systematically underrepresented in the

federal agency decision making process.

Consistent with traditional notions of

natural resource allocation, the benefits of

development were overstressed and less

environmentally damaging alternatives for

meeting program objectives were often

given limited consideration. NEPA declares

a broad national commitment to protecting

and promoting environmental quality. This

commitment is implemented by focusing

government and public attention on the

environmental effects of proposed agency

action; The Act ensures that important

North Buckhead, 903 F.2d at 1539-40 (emphasis

added)(citation omitted).

29a

NEPA does not set out substantive environmental

standards, nor prescribe any regulatory program.

Rather, the congressional mandate of § 4321 is realized

through a set of "action forcing" procedures that require

an agency to take a “hard look" at environmental

consequences.

Robertson v. Methow Valley Citizens

Council, 109 S. Ct. 1835, 1846 (1989); Vermont Yankee

Nuclear Power Corp. v. Natural Resources Defense

Council, 435 U.S. 519, 558 (1978) (mandate to agencies

under NEPA is "essentially procedural"). The procedural

requirements derive from 42 U.S.C. §4332 (2)(C)(i-iv),

which directs all agencies of the federal government to

prepare for "major Federal actions" a detailed statement

on (1) the environmental impact of the proposed action;

(ii) any unavoidable adverse environmental effects if a

project is implemented; (ili) alternatives to the proposed

action; (iv) the relationship between short-term uses of

the environment and maintenance of long-term

productivity; and (v) any irreversible and irretrievable

commitments of resources involved in the project's

implementation.

Pursuant to Executive Order,? the Council on

Environmental Quality was directed to promulgate

regulations binding on all federal agencies for the

implementation of NEPA. These regulations,

promulgated in late 1978, codified and clarified much of

the established procedure under the statute. The first

step in the compliance process is the preparation of an

3 See Executive Order 11514 (Mar. 5, 1970) as amended by

Executive Order 11991 (May 24, 1977).

30a

"Environmental Assessment," defined in relevant part as

"a concise public document... which serves to: Briefly

provide sufficient evidence and analysis for determining

whether to prepare an environmental impact statement

or a finding of no significant impact[; and] Shall include

brief discussion of the need for the proposal, of

alternatives as required by [8 4332(2)(E)] of the

environmental impacts of the proposed action and the

alternatives, and a listing of agencies and persons

consulted." 40 C.F.R. § 1508.9 (1991).

Based on the EA, an agency decides whether to

prepare an "Environmental Impact Statement." 40

C.F.R. § 1501.4(c). An EIS is an exhaustive analysis of

the impacts, proposed mitigation, and alternatives to the

federal project, which has been circulated to other

involved agencies, see §1502.19, subject to public

comment and agency response, see 81503, reviewed by

the CEQ in case of interagency disagreement, see §

1504, and ultimately submitted to the President. The

EIS, therefore, is the primary vehicle for compliance with

NEPA where a project will have a significant impact on

the environment. The EIS is the "action forcing" device

envisioned by Congress to ensure that NEPA's policies

and goals are infused into federal decisionmaking. 40

C.F.R. § 1502.1

Therefore, the EA is a fundamental crossroads in the

process. Based upon the EA's analysis and conclusions,

an agency may issue a FONSI, thereby terminating the

NEPA process, or proceed to the next phase by

preparing an EIS. In effect, the EA and decision to issue

a FONSI based thereon remove an agency from further

obligations under NEPA.

3la

2. "Commit First, Ask Questions Later?"

Against this statutory background, it is clear that the

Navy's theory of "cure" in this case would violate the

letter and spirit of NEPA.

The documentation offered in Support of the EA's

"findings" was prepared after the EA and FONSI were

issued. Indeed, Defendants’ response to Plaintiff's

interrogatories indicates that no written studies,

analyses or reports on any environmental issue were

prepared from the time the project was initially

considered until the EA was issued in September 1988.

Certain studies were conducted as the project went to

bid; a traffic impact study was not conducted until

October 1991, four months after this litigation was

commenced. The record reflects that the analyses of

environmental issues produced after the EA was issued

are by-products of the myriad engineering and other

technical studies conducted subsequent to the decision

to build on the Peary Court site. The Navy argues that

these studies support the agency's earlier finding of no

significant impact.

Accepting the Navy's argument would render the

EA/FONSI process a mere formality. As in this case, an

agency could issue a perfunctory EA (and FONSI based

thereon), and proceed with a project unhindered by

further NEPA requirements. If challenged, the agency

could support its pro forma EA with whatever studies

were produced in the course of implementing the

proposal. Any remaining environmental problems could

32a

be resolved after the decision to go forward with the

project were actually made.

This result is not what Congress intended. The Act's

effectiveness depends on involving environmental

considerations in the initial decision making process.

See Robertson, 109 S. Ct. at 1845 (NEPA goals achieved

during period when agency is "contemplating a major

action"); see also 40 C.F.R. 8 1501.2 ("Agencies shall

integrate the NEPA process with other planning at the

earliest possible time to insure that planning and

decisions reflect environmental values, to avoid delays. .

., and to head off potential conflicts); 40 C.F.R. § 1500.1

("NEPA procedures must insure that environmental

information is available to public officials before

decisions are made and before actions are taken"). In

the NEPA context, post hoc compliance by definition

does not accord with the congressional mandate. See

Sierra Club v. Lujan, 716 F. Supp. 1289 (D. Ariz. 1989);

Cady v. Morton, 527 F.2d 786, 794 (9th Cir. 1975).

The Court is not unaware of the onerous burden that

this law places on an agency desiring to move forward

efficiently and expeditiously. The law must nonetheless

be followed.

The Navy has failed to demonstrate evidence of NEPA

compliance before committing to the Peary Court

project.

33a

Ill, REMEDY

A. Remand

The preceding finding of a NEPA violation does

not determine the appropriate remedy. Clearly,

Congress did not intend that an agency have only "one

bite at the apple” in attempting to comply with the

statute. The Court now turns to equitable

considerations.

The Navy's most persuasive argument against the

injunctive relief sought by Plaintiff is that nothing but

delay would be accomplished by a remand to the agency

for further NEPA proceedings. Both during the

Magistrate Judge's hearing and at trial, the Navy argued

that subsequent studies confirmed the findings of the

EA. Remand, Defendants suggest, would be pointless

because each potential harm of concern to Plaintiff was

either insignificant or mitigated as the design of the

project progressed. See Defs’ Mem in Opp. to Prel. Inj.

at 17-27.4

4 Defendants cite two District of Columbia Circuit cases for the

proposition that later analyses and mitigation measures that

demonstrate that no issue remains for remand may be considered in

reviewing an agency's NEPA compliance: Tongass Conserv, Soc, v.

Cheney 924 F.2d 1137, 1140 (D.C. Cir. 1991); Friends of the River v.

E.ELR.C,, 720 F.2d 93 (1983).

These case are inapposite. In both cases, the court found that

the agency had considered the environmental consequences of the

projects before implementation and during the planning stages. In

the more substantive Friends of the River case. FERC issued an

order after a final EIS was issued that addressed the environmental

34a

The Court is mindful of the strong policy against

sanctioning delay for the sake of procedural regularity.

The facts of this case, however, require the Court to

transcend such concerns, grant relief, and fashion a

remedy.

While the Navy rested its case entirely upon the

administrative record, Plaintiff offered credible expert

testimony of uncorrected environmental problems at the

Peary Court site. See, e.g., Findings of Fact at IV, V, &

VIII. These experts took issue with the findings and

conclusions of the studies relied upon by the Navy in

support of its original EA. Both parties now urge the

Court to determine from this conflicting evidence

concerns raised by the plaintiff. The Court noted that the EIS would

be deficient if not for the later order. The Court declined to remand

because it “would not aid the agencies’ own (environmental) decision

making process, for that process has already occurred.” 720 F.2d at

106 (citation omitted). Before implementation and in support of its

later order, the agency “did make such an investigation, after

receiving and responding to extensive comments from interested

persons outside the agency. and FERC incorporated its finding in

opinion accessible to the public - the July, 1982 order.” Id, Friends

of the River thus stands for the unremarkable proposition that an

EIS may be amended by later agency consideration of environmental

concerns during its decisionmaking. The Tongass court even more

remarkably decided to consider an Addendum to an EIS, as plaintiff

conceded the addition was indeed a part of the original EIS. 924

F.2d at 1140 n.1.

Additionally, it is important to note that both cases invoived

EIS’s. The agencies therein had taken environmental considerations

substantially into account. Such is not the case here, as the Navy's

pro forma EA does not evince such NEPA compliance. The case for

remand is certainly stronger where an agency had foreclosed NEPA

considerations from its decisionmaking early on in the process.

35a

whether the Peary Court project will have a significant

impact on the environment, much as the agency

properly should have done in the first instance.5

This determination, however, is appropriately made

by the agency and not the Court. The Court's proper

function at this point is not to make this substantive

determination, but rather to ensure that the agency

reasonably took account of all of the environmental

consequences of its action before making the decision to

proceed.® The Court makes the limited finding here that

based on Plaintiffs evidence adduced in these

proceedings, the agency at the time the EA was filed,

failed reasonably to consider the environmental

consequences of its decision to proceed as required by

NEPA. Therefore, a remand to agency for further

proceedings consistent with NEPA and this opinion is

appropriate. The Navy will be ordered to prepare an

adequate EA within forty-five days from the date of this

Order.

5 Of course, a finding by this Court of significant impact would

necessitate the preparation of an EIS. 42 U.S.C. § 4332(2)(C). A

contrary ruling would affirm the EA and FONSI.

6 if the EA had been properly prepared and the only issue in

controversy was the subsequent FONSI, the Court's task would be

different. In such a case, the Court appropriately determines

whether the critical findings of the EA are supported, and whether

the agency's decisions were reasonable. See, e.g. C.A.R.E, 844 F.2d

at 1570.

36a

B. Injunction

The Court finds that Plaintiff has satisfied the

prerequisites to the injunctive relief sought.

Plaintiff has demonstrated that irreparable harm will

result from construction of this project. As explained

above, in the absence of an adequate EA, the Court is

unable to determine if the project will have a significant

impact on the environment. The Court is similarly

unable to evaluate the Navy's mitigation measures.

Therefore, in the absence of an injunction, Plaintiff may

suffer the precise irreparable harms sought to be

prevented by this action. Plaintiff has shown that

serious and unresolved questions remain as relate to,

inter alia, stormwater runoff and flooding,

contamination of the Lens aquifer, increased traffic and

congestion, and destruction of specimen trees and

aesthetic resources. Irreparable harm results where

environmental concerns have not been addressed by the

NEPA process. See Sierra Club v. Marsh, 872 F.2d 497,

504 (lst Cir. 1989) (affirming injunction based on NEPA

procedural lapse because "risk implied by a violation of

NEPA is that real environmental harm will occur

through inadequate foresight and deliberation").

The Court additionally finds that a balance of the

harms favors the Plaintiff.’ The construction of military

? By Order dated March 6, 1992, this Court deferred ruling on

Magistrate Judge Brown's Report and Recommendation of February

25, 1992 on Plaintiffs motion for a preliminary injunction. Because

37a

housing at some site in the Key West area will be

delayed only by the amount of time necessary to comply

fully with NEPA. Compliance has been an obligation of

the government since the inception of the project, and

should have been built into the project schedule

originally.§

FINAL DECREE OF INJUNCTION

Accordingly, after a careful review of the record, and

the Court being otherwise fully advised, it is

ORDERED and ADJUDGED that the determination

of Defendants to utilize the Peary Court site in the City

of Key West for military housing is in violation of the

National Environmental Policy Act of 1969, 42 U.S.C. 88

4321 et seq., and regulations promulgated thereunder,

40 C.F.R. 88 1500 et seg. It is further

ORDERED and ADJUDGED that Defendants, its

officers, servants, agents, employees and contractors,

including but not limited to Caddell Construction

Company, Inc., of Montgomery, Alabama, be and the

Same hereby are permanently RESTRAINED and

this case has proceeded to a trial on the merits, the Magistrate

Judge's Report and Recommendations not moot.

8 Defendants have submitted an affidavit concerning the costs

of delay from the construction contractor at the Peary Court site.

Defendants entered into a contract with the construction company

several months after this litigation was commenced, and were fully

aware that delay would occur if Plaintiff prevailed. The harm from

delay is a result of the Navy's failure to follow NEPA procedure, and

subsequent establishment of its own construction schedule.

38a

ENJOINED from commencement of construction of

méttary housing at the Peary Court site located within

‘ the City of Key West, Florida or taking any other actions

in furtherance hereof PENDING the preparation of an

Environmental Assessment in conformity with 42 U.S.C.

§8 4321 et seq. and regulations promulgated

thereunder, and consistent with this Opinion. Said

Environmental Assessment shall be PREPARED and

COMPLETED no more than forty-five (45) days from the

date of this Order, but may at Defendant's option be

completed in less time. The injunction granted hereby

shall be DISSOLVED automatically by its expiration five

(5) days from the date said Environmental Assessment is

issued. Defendants may use, employ, and otherwise

incorporate any previously prepared reports, analyses or

studies in the preparation of said Environmental

Assessment. It is further

ORDERED and ADJUDGED that this case be and

the same hereby is DISMISSED. The Clerk of the Court

shall CLOSE this case. The Court retains jurisdiction to

enforce the provisions of this Final Order. It is further

ORDERED and ADJUDGED that each party shall

bear its own cost and attorneys’ fees of this litigation, as

Defendants’ litigation position was substantially

justified. It is further

ORDERED and ADJUDGED that the Report and

Recommendation of February 25, 1991 by and same

hereby is MOOT.

39a

DONE and ORDERED in chambers at the United

States District Courthouse, Federal Courthouse Square,

Miami, Florida on this 30th day of March, 1992.

cc:

JAMES LAWRENCE KING

U.S. DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

Magistrate Judge Stephen T. Brown

Via facsimile and mail:

Teresa Davenport, AUSA

Pauline H. Milius, Esq.

Joel Sachs, Esq.

Leonard Sands, Esq.

40a

DEMAND FOR RELIEF FROM PETITIONER'S

COMPLAINT FILED JUNE 4, 1991

f). Granting plaintiff costs of this action, including

attorneys’ fees.

g) Granting Plaintiff such other and further relief as

to this Court may seem just and proper.

DATED White Plains, New York

June 4, 1991

YOURS, etc.,

PLUNKETT & JAFFE, P.C.

Counsel for Plaintiff

1 North Broadway

White Plains, New York 10601

(914) 948-7722

KEVIN J. PLUNKETT, ESQ.

(Florida Bar No. 0204854)

JOEL H. SACHS, ESQ.., of

Counsel

and

SANDS & MOSKOWITZ, P.A.

Local Counsel for Plaintiff

300 Bayview Plaza

3225 Aviation Avenue

Coconut Grove, Florida 33133

By

~

LEONARD SANDS, ESQ.

(Florida Bar No. 257583)

4la

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

PROTECT KEY WEST, INC., a Florida )

Not-for-Profit Corporation, d/b/a

LAST STAND,

Plaintiff,

Civil No.

91-10054-King

RICAHRD CHENEY, Secretary of

Defense of the United States

of America, et al.,

)

)

)

)

)

)

Vv. )

)

)

)

)

)

Defendants. )

)

DEFENDANTS’ MOTION FOR AMENDMENT OF

MARCH 30 ORDER

Defendants respectfully request that the Court

amend its March 30 Opinion and Order in the following

respect.

Under the section titled “Findings of Fact”, the

Opinion states that the Peary Court project “is a major

federal action that will significantly affect the

environment.” Opinion at 4-5. This statement should

be deleted from the Opinion.

In its opinion, the Court reviews the requirements for

the preparation of an EA, and concludes that the Peary

42a

Court EA is inadequate in its discussion of several

environmental issues. Jd. at 15-23. However, in its

discussion under “Remedy”, the Court explicitly refuses

to determine whether the Peary Court project has

significant impacts on the environment. Instead, the

Court states that such determination “is appropriately

made by the agency and not the Court.” Id. at 25.

The “significantly affect” statement is also contrary to

the remedy the Court has fashioned. The Court has

directed the Navy to prepare an “Environmental

Assessment in conformity with 42 U.S.C. 88 4321 et seq.

and regulations promulgated thereunder, and consistent

with this Opinion.” Id. at 27-28. Clearly, the

preparation of an EA would be inappropriate if the Court

had already found that the Peary Court project will

“significantly affect” the environment. As the Court

noted, the “finding by this Court of significant impact

would necessitate the preparation of an EIS.” Id. at

footnote 5.

In conclusion, the “significantly affect” statement is

inconsistent with both the Court’s reasoning and

remedy. It appears to have been included inadvertently,

and the Opinion and Order should be amended to delete

it.

Dated April 9th, 1992

43a

Respectfully submitted,

JAMES G. McADAMS, III

United States Attorney

TERESA DAVENPORT

Assistant U.S. Attorney

PAULINE H. MILIUS

DAVID F. Shuey

Attorneys

U.S. Department of

Justice

General Litigation Section

Environment and Natural

Resources Division

P.O. Box 633

Washington, D.C. 20044-

0663

(202) 272-8228

(202) 272-6341

Attorneys for Defendants

44a

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the Defendants’

Motion for Amendment of March 30 Order was served by

U.S. mail upon the following attorneys of record on April

9th, 1992.

Joel Sachs, Esq.

Kevin J. Plunkett, Esq.

PLUNKETT & JAFFE, P.C.

1 North Broadway

White Plains, New York 10601

Leonard Sands, Esq.

SANDS & MOSKOWITZ, P.A.

300 Bayview Plaza

3225 Aviation Avenue

Coconut Grove, Florida 33133

DAVID F. SHUEY

45a

PERTINENT TEXT OF 28 U.S.C. § 2412

28 U.S.C. § 2412. Costs and fees

(d)(1MA) Except as otherwise specifically provided by

statute, a court shall award to a prevailing party other

than the United States fees and other expenses, in

addition to any costs awarded pursuant to subsection

(a), incurred by that party in any civil action (other than

cases sounding in tort), including proceedings for

judicial review of agency action, brought by or against

the United States in any court having jurisdiction of that

action, unless the court finds that the position of the

United States was substantially justified or that special

circumstances mak* an award unjust.

(B) A party seeking an award of fees and other expenses

shall, within thirty days of final judgment in the action,

submit to the court an application for fees and other

expenses which shows that the party is a prevailing

party and is eligible to receive an award under this

subsection, and the amount sought, including an

itemized statement from any attorney or expert witness

representing or appearing in behalf of the party stating

the actual time expended and the rate at which fees and

other expenses are computed. The party shall also

allege that the position of the United States was not

substantially justified. Whether or not the position of

the United States was substantially justified shall be

determined on the basis of the record (including the

record with respect to the action or failure to act by the

agency upon which the civil action is based) which is

made in the civil action for which fees and other

expenses are sought.

46a

(2) For the purposes of this subsection-

(D) “position of the United States” means, in

addition to the position taken by the United States in

the civil action, the action or failure to act by the agency

upon which the civil action is based; except that fees

and expenses may not be awarded to a party for any

portion of the litigation in which the party has

unreasonably protracted the proceedings;