Case 42

Aluli v. Brown, 437 F. Supp. 602 (D. Haw. 1977), aff'd in part, rev'd in part, 602 F.2d 876 (9th Cir. 1979).

Plaintiffs sought to enjoin the Navy's bombing activities on the Island of Kahoolawe, Hawaii, alleging that the Navy had violated the National Environmental Policy Act (NEPA) by failing to prepare a supplemental environmental impact statement with its annual appropriation request to fund the bombing operations and had violated the National Historic Preservation Act (NHPA) and Executive Order No. 11593 by authorizing the bombing without locating, inventorying, or nominating to the National Register of Historic Places all historic properties on the island that appeared to meet the National Register criteria. An archeological survey done in 1931 had identified 50 sites on the island. The Navy's environmental impact statement (EIS), prepared under NEPA in 1972, discussed these sites and had been upheld in a separate court challenge.

Since the Navy had filed its initial environmental impact statement, it had commissioned further surveys, and additional archeological resources had been discovered on the island. Because these surveys were ongoing, the Navy did not intend to offer any sites for nomination to the Register until surveys of the entire island had been completed. Nevertheless, the Navy had taken precautions to prevent damage to the identified sites. Defendant argued that a supplemental EIS was not required, that NHPA did not apply because the island had not been determined eligible for inclusion in the Register, and that Executive Order No. 11593 did not provide a right of action within the district court's jurisdiction.

The district court concluded that NHPA applied to the defendant and that plaintiffs had an implied right of action under NHPA and Executive Order No. 11593. 437 F. Supp. at 609. Although the court declined to enjoin defendant from bombing because plaintiffs had not shown that they would be irreparably injured by continued bombing, it found defendant to be in violation of the Executive Order. It required defendant to cooperate with the State Historic Preservation Officer in surveying the island, to refer any bombing activities that might damage prospective historic sites to the Secretary of the Interior for an opinion respecting the properties' eligibility for inclusion in the National Register without waiting for completion of the survey, and to seek an eligibility determination for the entire island. Id. at 612. These findings were not overturned on appeal.

The district court also held that defendant's bombing of the archeological sites was a major Federal action under NEPA and that, because of the presence of the newly discovered archeological sites on the island, the Navy had to prepare a new or revised EIS. The new EIS must consider the possible effects of the use of live ordnance on the historic and cultural resources on the island. Id. at 607-08. The district court concluded that the Navy must prepare an annual EIS as long as the bombing activities continued. Id. at 612. The Ninth Circuit reversed the district court's requirement of an annual EIS, holding that the Navy's annual requests for appropriations to fund the bombing activities were not "proposals" under NEPA. 602 F.2d at 877.

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