Construction of Navy Landing Field Delayed

Washington County, N.C. v. U.S. Dept. of the Navy, 2004 U.S. Dist. LEXIS 8733 (E.D.N.C. April 19, 2004).

Stephanie Showalter, J.D., M.S.E.L.

In April, the U.S. District Court for the Eastern District of North Carolina enjoined the U.S. Navy from taking further action associated with the construction of a landing field near the Pocosin Lakes National Wildlife Refuge (Pocosin NWR) pending a decision on the merits in a lawsuit filed by the Southern Environmental Law Center.

Background
To support the operation and training of the new “Super Hornet” aircraft, the U.S. Navy intends to build an Outlying Landing Field (OLF) comprised of approximately 23,000 acres in Washington County and 7,000 acres in Beaufort County, North Carolina. The area, know as Site C, is located just a few miles from the Pocosin NWR, a waterfowl sanctuary providing winter habitat for over 100,000 waterfowl, including 20,000 tundra swans and 44,000 snow geese.1 The Navy estimates that the OLF would be used for approximately 31,560 Field Carrier Landing Practice operations per year.2

On January 9, 2004, the Southern Environmental Law Center (SELC) filed suit on behalf of the National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife challenging the Navy’s plan to construct a new OLF at Site C. SELC claims that the Navy failed to comply with the National Environmental Policy Act (NEPA), the Coastal Zone Management Act, and the North Carolina Coastal Area Management Plan. In February, SELC filed for a preliminary injunction to prevent the Navy from moving ahead with its construction plans until the court made a determination on the merits of the case.
Preliminary Injunction Standard

A preliminary injunction is not the final determination of a case, but rather a temporary remedy to preserve the status quo until a final ruling can be made by the court. Usually, to obtain a preliminary injunction, the moving party must establish: “(1) a substantial likelihood of success on the merits; (2) irreparable injury to the [moving party] if the injunction is denied; (3) the threatened injury to the [moving party] outweighs the injury to the other party; (4) the injunction is not adverse to the public interest.”3 No one factor is determinative.

In the Fourth Circuit, however, courts employ a “hardship balancing test” that balances the likelihood of harm to the plaintiff against the likelihood of harm to the defendant.4 If the balance of harms weighs in the plaintiff’s favor, the plaintiff need not demonstrate a likelihood of success.5 The plaintiff simply needs to show that her claims raise serious questions.

Balance of Harms
The district court held that the balance of harm is significantly weighted in the favor of the SELC. The court stated that the SELC presented compelling evidence that the construction of the OLF at Site C would irreparably harm numerous swans and snow geese through destruction of the natural habitat on which they depend, increased noise, and increased danger of collision. In addition, the Navy’s acquisition of land for the OLF will irreparably harm the citizens of Washington and Beaufort counties by permanently displacing at least one hundred families.

The likelihood of harm to the Navy, according to the district court, is slight. The Navy is still in the preliminary planning stage of this project and has yet to purchase land or secure contractor bids. Furthermore, the court was not persuaded by the Navy’s primary argument that a construction delay would irreparably harm the ability of the Navy to conduct operations. Even without a delay, the OLF would not be operational until 2007 and even the Navy admitted in its Final Environmental Impact Statement that “an OLF is not required to support the homebasing alternatives at NAS Oceana.”6

Likelihood of Success
Because SELC demonstrated that the balance of harms weighs in its favor, the district court only needed to decide whether the questions presented by SELC are “so serious, substantial, difficult, and doubtful, as to make them fair ground for litigation.”7 The district court found that SELC raised serious questions about whether the Navy acted arbitrarily in deciding to construct the OLF at Site C. SELC presented evidence that the Navy conducted an insufficient analysis of the impact of the OLF on the waterfowl at Pocosin NWR and that the Navy’s findings in the issued environmental impact statements might actually run counter to evidence in front of the Navy at the time of its decision. SELC also presented evidence that the Navy failed to adequately consider alternative sites for the OLF.

Conclusion
The district court enjoined the Navy from taking further action to construct a new OLF in North Carolina because of the likelihood of harm to the citizens of Washington and Beaufort counties and waterfowl in nearby Pocosin NWR. Although the Navy has a duty to maintain national security and train its pilots, the court held that those duties do not automatically prevail over the procedural requirements of NEPA. Because the court was not persuaded that a delay would cause the Navy or the public tangible harm, the Navy was enjoined from further action pending resolution of the case or until further order of the court

Endnotes
1. Washington County, N.C. v. U.S. Dept. of the Navy, 2004 U.S. Dist. LEXIS 8733, at *3-4 (E.D.N.C. April 19, 2004).
2. Id. at *3.
3. Rothberg v. Law School Admission Council, 2004 U.S. App. LEXIS 11824, at *6-7 (10th Cir. June 16, 2004).
4. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 194-95 (4th Cir. 1977).
5. Id. at 196.
6. Washington County, 2004 U.S. Dist. LEXIS 8733, at *121.
7. Id. at *124.

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