Case 64



Catholic Action of Hawaii/Peace Education Project v. Brown, 468 F. Supp. 190 (D. Haw. 1979), rev'd, 643 F.2d 569 (9th Cir. 1980), rev'd sub nom. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139 (1981).

Plaintiffs sought to enjoin the Navy from using newly constructed munitions facilities on the Pearl Harbor Naval Base in Honolulu, Hawaii, that were capable of storing and maintaining nuclear weapons. Whether nuclear weapons were to be stored in the facility was classified information that could not be made public for reasons of national security. The Navy had prepared a classified environmental impact assessment which concluded that the project would have no significant impact on the environment, as defined by the National Environmental Policy Act (NEPA), and no effect, under the terms of the National Historic Preservation Act (NHPA), on the Okiokiolepe Fishpond, a site listed in the National Register of Historic Places. The Navy did not prepare an environmental impact statement (EIS).

After rejecting the defendant's claim of laches, the district court concluded that, "as a result of the conclusion reached in the environmental impact assessment," the Navy had not violated NHPA. 468 F. Supp. at 193.

The district court denied plaintiffs' motion for an injunction, finding that the Navy's decision that the submission of an environmental impact statement would conflict with the national security provisions of the Atomic Energy Act was reasonable. Id. at 193. The Ninth Circuit reversed this conclusion, holding that the Navy should prepare a hypothetical EIS for public information. 643 F.2d at 571-72. Once this was done, the Ninth Circuit envisioned that the district court would then determine the effect on the historic fishpond. Id. at 272.

The Supreme Court reversed the Ninth Circuit's requirement that a hypothetical EIS be prepared, holding that because information on the facility could be withheld from public disclosure under the Freedom of Information Act, NEPA's disclosure requirements did not apply. 454 U.S. at 145. Nevertheless, NEPA's requirement that the Navy consider environmental consequences in its decisionmaking would still apply, and if the Navy determined that an EIS was necessary, it could prepare the EIS solely for internal use. Id. at 146. The Supreme Court did not address the NHPA issues.

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