Ground Zero Center for Non-Violent Action v. United States Department of the Navy , 860 F.3d 1244 ( 2017 )

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.