'Ilio'Ulaokalani Coalition v. Rumsfeld

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
‘ILIO‘ULAOKALANI COALITION, a 
Hawaii nonprofit corporation;
NA‘IMI PONO, a Hawaii
unincorporated association;
KIPUKA, a Hawaii unincorporated
association,
Plaintiffs-Appellants,
v. No. 05-15915
DONALD H. RUMSFELD, Secretary of
Defense; FRANCIS J. HARVEY, Dr.,  D.C. No.
CV-04-00502-DAE
Secretary of the United States OPINION
Department of the Army,
Defendants-Appellees,
and
LES BROWNLEE, Acting Secretary
of the United States Department of
the Army,
Defendant.

Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
December 6, 2005—San Francisco, California
Filed October 5, 2006
Before: Betty B. Fletcher, David R. Thompson, and
Carlos T. Bea, Circuit Judges.
17449
17450 ILIO‘ULAOKALANI COALITION v. RUMSFELD
Opinion by Judge B. Fletcher;
Dissent by Judge Bea
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17453
COUNSEL
David L. Henkin, Earthjustice, Honolulu, Hawaii, argued the
case for appellants ‘Ilio‘ulaokalani, Na ‘Imi Pono, and
Kipuka; Isaac H. Moriwake was on the briefs for the appel-
lants.
Michael T. Gray, Department of Justice, Washington, D.C.,
argued the case for appellees Donald H. Rumsfeld, Secretary
of Defense and Francis J. Harvey, Secretary of the United
States Department of the Army; Kelly A. Johnson, Acting
Assistant Attorney General, John L. Smelzer, Department of
Justice, and Barry A. Weiner, Department of Justice, were on
the briefs for the appellees.
OPINION
B. FLETCHER, Circuit Judge:
This appeal requires us to assess whether the Army com-
plied with the National Environmental Policy Act of 1969
17454 ILIO‘ULAOKALANI COALITION v. RUMSFELD
(“NEPA”), 42 U.S.C. §§ 4321-4347 (2006), in planning its
programs to modernize and streamline its forces, while simul-
taneously maintaining readiness. While the metamorphosis of
the Army and the strategic planning accompanying this trans-
formation is the business of the Army, not the courts, the
Army’s compliance with NEPA does involve us.
As part of its NEPA evaluation of the Army Transforma-
tion Campaign Plan, the Army completed a programmatic
environmental impact statement (“PEIS”), in which it identi-
fied Hawaii as one of the selected sites for transformation.
Subsequently, the Army undertook a site-specific environ-
mental impact statement (“SEIS”) to detail the impacts on the
environment of the Army’s expansion, land use, and activities
associated with transforming the 2nd Brigade, now stationed
on Oahu, Hawaii, into a Stryker Brigade Combat Team
(“SBCT”) in Hawaii. Plaintiffs, ‘Ilio‘ulaokalani Coalition, Na
‘Imi Pono, and Kipuka (“Hawaiian Groups”), challenged the
sufficiency of the Army’s NEPA procedure, both at the pro-
grammatic and site-specific levels, on two grounds, arguing
that (1) the Army failed to comply with NEPA’s public notice
requirements and (2) both the PEIS and SEIS failed to con-
sider reasonable alternatives.
The district court granted summary judgment to the Army,
finding that its public notice efforts were compliant with
NEPA and that it sufficiently considered reasonable alterna-
tives to transforming the 2nd Brigade in Hawaii. We now
reverse the portion of the district court’s decision that held
that the Army considered all reasonable alternatives to trans-
formation of the 2nd Brigade in Hawaii and remand to require
it to prepare a supplemental SEIS to consider all reasonable
alternatives, most notably the potential for transforming the
2nd Brigade outside of Hawaii.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17455
I. Background
A. The Army’s Planned Transformation
In 1999, the Secretary of the Army and the Chief of Staff
of the Army announced a major re-working of the United
States Army. The objective of this effort is the creation of a
“more responsive, deployable, agile, versatile, lethal, surviv-
able, and sustainable” Army which is also strategically
responsive and nimble. Programmatic Record of Decision
(“P-ROD”) (Apr. 2002) at 1, AR 0009656. The Army
describes the “ultimate force that would achieve the Army
Vision” as the “Objective Force.” Final Programmatic Envi-
ronmental Impact Statement (“Final PEIS”) (Feb. 2002) at 1-
1, AR 0003864.
This thirty-year undertaking will have three phases (Initial
Phase, Interim Capability Phase, and Objective Capability
Phase) and three corresponding objectives (Initial Force,
Interim Force, and Objective Force). P-ROD at 1-2, AR
0009656-57. The Initial Phase, which began in October 1999
and had been completed at the time of this appeal, had as its
objective the creation of two Initial Brigade Combat Teams
(“BCTs”). Two units, the 3rd Brigade, 2nd Infantry Division
and the 1st Brigade, 25th Infantry Division, in Fort Lewis,
Washington, were transformed to accomplish this objective.
U.S. Army Public Affairs Office, Press Release, Army
Announces Locations of Next Interim Brigade Combat Teams
(July 12, 2001), AR 0003512. The purpose of this Initial
Phase was to “validate an organizational and operational
model for Interim BCTs [Brigade Combat Teams]” and to
“develop[ ] the strategic, operational, and tactical doctrine for
subsequent phases of transformation.” Final PEIS at 2-5, AR
0003878. “These brigades . . . are being used to evaluate and
refine the Operations and Organization Concept for a brigade
combat team (BCT) and to validate tactics, techniques, and
procedures.” P-ROD at 2, AR 0009657.
17456 ILIO‘ULAOKALANI COALITION v. RUMSFELD
The Interim Capability Phase, aspects of which are at issue
in the appeals before us, has as its objective “complet[ing] the
fielding of five to eight Interim BCTs.” The Interim Force
would consist of “both Legacy Forces and transformed
forces.” Final PEIS at 2-5, AR 0003878. These BCTs will be
capable of deploying anywhere in the world in four days. Id.
at 1-1, AR 0003864. This phase will begin “with fielding of
interim armored vehicles (IAVs) and will end when the last
I[nterim ]BCT is fully manned, equipped, and trained to pos-
sess the capabilities described in the I[nterim ]BCT Opera-
tions and Organization Concept.” P-ROD at 2, AR 0009657.
The Objective Phase will complete the Army’s transformation
into the Objective Force described above. Id. at 1-2, AR
0009656-57.
Both cases decided today1 address issues that arose as part
of the Interim Capability Phase, namely the transformation of
2nd Brigade in Hawaii into an Interim or Stryker BCT. We
present and view the facts in the light most favorable to
Plaintiffs-Appellants Hawaiian Groups as this is an appeal
from the grant of summary judgment to appellees and denial
of summary judgment to appellants. See Envtl. Coal. of Ojai
v. Brown, 72 F.3d 1411, 1414 (9th Cir. 1995).
B. Programmatic Environmental Impact Statement
On December 15, 2000, the Army published in the Federal
Register its notice of intent (“NOI”) to prepare a PEIS for its
planned overhaul. 65 Fed. Reg. 78476 (Dec. 15, 2000). At this
point, the Initial Phase was already underway in Fort Lewis,
Washington. Id. The NOI described the alternatives that
would be considered in the PEIS:
1
The other case, United States v. 1,402 Acres of Land, et al., No. 05-
15858, concerns the Army’s acquisition of land to serve its transformation
of the 2nd Brigade. That case is disposed of in a separate memorandum
disposition.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17457
1. No Action Alternative: Whereby the ATCP
would not be implemented and needed changes to
Army equipment, force structure and training prac-
tices would be separately analyzed on a piecemeal
basis.
2. Action Alternative 1: Whereby the program for
transformation of the Army to better meet present
and future national security requirements and fulfill
the Army Vision would be initiated in accordance
with the ATCP including:
a. A comparison of the likely environmental
effects at candidate (alternative) sites for placement
of the brigades planned for the Interim Force.
b. Identification and analysis of the types of
major actions contained in the ATCP leading to the
Objective Force and their associated activities and
consequential types and magnitude of effects.
3. Action Alternative 2: Whereby the ATCP would
only be partially implemented because of budgetary
or other constraints.
Id.
To further publicize the scoping period for the PEIS, the
Army published a notice in USA TODAY on December 19,
2000. A large title reads, “PUBLIC NOTICE.” In slightly
smaller font is a subheading stating, “THE DEPARTMENT
OF THE ARMY SEEKS PUBLIC INPUT FOR PROGRAM-
MATIC ENVIRONMENTAL IMPACT STATEMENT FOR
IMPLEMENTATION OF THE ARMY TRANSFORMA-
TION CAMPAIGN PLAN.” AR 0004167. Below that, in
small type, the notice indicates that the Army is seeking pub-
lic comment to determine the “appropriate scope of its Pro-
grammatic Environmental Impact Statement” and summarizes
17458 ILIO‘ULAOKALANI COALITION v. RUMSFELD
the alternatives to be considered as the “no-action” alterna-
tive, “full implementation of the TCP,” and “partial imple-
mentation of the TCP.” Id. That the Army provided notice of
the pending PEIS in the Federal Register and in USA TODAY,
not in the Hawaiian media, is not in dispute. The Army did
not invite state and local agencies to participate in scoping for
the PEIS. The Army noted internally that there was
“[v]irtually no public response to ‘scoping.’ ” Dep’t of the
Army Transformation Office, Public Involvement and Out-
reach for Army Transformation and the Transformation PEIS,
slide presentation, AR 0004584.
Consistent with its practices during scoping, the Army pub-
lished a Notice of Availability of the Draft PEIS for Imple-
mentation of Army Transformation in the Federal Register,
66 Fed. Reg. 54241 (Oct. 26, 2001), and in USA TODAY on
October 31, 2001, making the Draft PEIS available for public
comment. AR 0004593, 00010390-91. Again, the Army did
not circulate the Draft PEIS to, and did not solicit comments
from, state or local agencies. Neither did the Army provide
written notice to national organizations or solicit comments
from potentially interested individuals and communities.
Plaintiffs did not comment on the Draft PEIS. According to
Plaintiffs and confirmed by the Army’s distribution list, no
one in Hawaii sought copies of the Draft PEIS. Nationally,
one member of the public submitted comments on the Draft
PEIS. Pls.-Appellants’ Opening Br. at 22-23. The Draft PEIS
described how the transformation of certain brigades into
Stryker Brigade Combat Teams (“SBCTs”) would take place
during the second phase, the Interim Capability Phase, of the
Army’s overhaul. The Draft PEIS identified the 2nd Brigade
stationed in Hawaii as one of the units that would undergo
transformation during the Interim Phase.2 Draft Programmatic
Environmental Impact Statement (Oct. 2001) (“Draft PEIS”),
2
While the Army’s formal announcement that the 2nd Brigade would be
included in the Interim Phase came in July 2001, the 2nd Brigade had been
selected, at least tentatively, before scoping for the PEIS began.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17459
at 2-9, AR 0003597. The Federal Register and USA TODAY
announcements did not contain any information that Hawaii
would be affected by the planned transformation. Pls.-
Appellants’ Opening Br. at 22.
The Army’s Final PEIS, issued in February 2002, consid-
ered the no action alternative but, in summarizing its consid-
eration of other alternatives, noted that “maintenance of
forces status quo would impair the Army’s ability to maintain
its commitment to the Nation and fulfill the Army Vision.”
Final PEIS at 2-9, AR 0003882. The Final PEIS considered
only two alternatives, the no-action alternative and full imple-
mentation of the Army’s Transformation Plan. Id. at ES-2,
AR 0003847. The Final PEIS determined that the preferred
alternative is full implementation of the proposed Army
Transformation Plan. The Final PEIS also indicated that the
Army expected to conduct transformation of existing units “in
place,” rather than re-locating them. Id. at 4-3, AR 0004000.
The 2nd Brigade remained a target for Interim Phase transfor-
mation. Fed. Appellees’ Resp. Br. at 11. The Army signed the
Record of Decision (“ROD”) for the PEIS, proceeding with
its preferred alternative and finalized designation of the 2nd
Brigade for conversion to an Interim BCT, contingent upon a
site-specific EIS. P-ROD at 1, 10, AR 0009656, 0009665.
The Army’s own experts recognized the shortcomings of
the PEIS and its ROD not long after they were published. The
minutes of an internal June 2002 meeting preparing for the
SEIS indicate that “the PEIS does not contain specific lan-
guage about why each of the five sites was selected.” After
Action Report from the Army Interim Force NEPA Process
Coordination Meeting (June 4-5, 2002) (“After Action
Report”), at 3, AR 0088102. According to this document, the
Army “did know what the sites were and why they were
selected, but didn’t want that detailed information to go into
the PEIS.” Id. Because the five sites for Interim Phase trans-
formation are in the ROD, “the main issue now is that the
ROD has no supporting analysis in the PEIS.” Id. The Army’s
17460 ILIO‘ULAOKALANI COALITION v. RUMSFELD
experts recognized this as a “potential deficiency.” Id. “In
both Alaska and Hawaii, the question has arisen as to why the
Army picked these sites.” Id.
As to the alternatives considered by the PEIS, at a legal
issues forum documented in the minutes, in response to the
question whether the SEIS should look at other locations for
the selected units, Army attorneys responded that the PEIS
foreclosed consideration of other locations:
unless the local situation suggests that it may be
impossible to train where they are now. The PEIS
leaves us short on alternatives. The only alternatives
we have are no action versus action. The P&N [pur-
pose and need] statements are crafted so tightly that
we may be restricting ourselves too much. The PEIS
only looked at one alternative.
Id. at 5-6, AR 0088104-05.
In response to questions of whether it is “reasonable for the
public to ask why on the siting issue,” attorneys responded:
“Yes; the ROD makes a decision that is not based on any
analysis. Installations need a position paper on why the sites
were picked, so that we have an administrative record of the
decision that can be referenced.” Id. at 6, AR 0088105. When
asked about whether the programmatic ROD can be fixed,
attorneys responded: “The only alternatives are to have
HQDA [Headquarters] bear the burden or have the installa-
tions bear it. Installations will probably have to drive on.” Id.
C. Site-Specific Environmental Impact Statement
The Army then undertook a SEIS for the 2nd Brigade’s
transformation in Hawaii, starting scoping by notifying and
inviting comment from a breadth of Hawaiian organizations,
including civic organizations, veteran groups, retired military
officials, state and city government officials, members of
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17461
Congress, and neighborhood boards. The Army also reached
out to groups representing low-income, minority and Native
Hawaiian constituencies. Final Site-Specific Environmental
Impact Statement, Transformation of the 2nd Brigade, 25th
Infantry Division (Light) to a Stryker Brigade Combat Team
in Hawaii (May 2004) (“Final SEIS”), at 1-8, 1-9, AR
0051279-80. After the publication of the NOI in the Federal
Register, the Army published notices in all major newspapers
in Oahu and Hawaii on April 8, 2002, announcing scoping
meetings. The Army held seven scoping meetings between
April 16 and 30, 2002, five on Oahu and two on the island of
Hawaii. The meetings on Hawaii are not at issue here. At the
scoping meetings on Oahu, 100 oral comments were received
from individuals and organizations. The Army also received
written comments from 199 individuals and organizations, 21
comments through its website, 7 comments by telephone, and
77 comments at additional information meetings requested by
organizations. Final SEIS at 1-9, AR 0051280.
The SEIS considered three alternatives, the no-action alter-
native, the reduced land acquisition alternative, and the pro-
posed action. Record of Decision, Transformation of the 2nd
Brigade, 25th Infantry Division (Light) to a Stryker Brigade
Combat Team in Hawaii (July 2004) (“S-ROD”), at 7-8, AR
0010317-18. The proposed action consists of converting the
2nd Brigade into a SBCT on Oahu. The reduced land acquisi-
tion alternative is identical to the proposed action, except for
decreased land acquisition at the South Range Acquisition
Area (“SRAA”). Id. at 8, AR 0010318. In response to public
questions as to why alternatives outside of Hawaii were not
considered, the Army responded that the decision to transform
the 2nd Brigade in place had been made in the PEIS. The
Final SEIS issued on May 28, 2004; the ROD followed on
July 7, 2004 and recommitted to transforming the 2nd Brigade
in Hawaii.
D. Procedural History
Plaintiffs-Appellants challenged the Army’s SEIS. On
October 12, 2004, the district court entered the parties’ stipu-
17462 ILIO‘ULAOKALANI COALITION v. RUMSFELD
lated agreement that the Army would not proceed with con-
version of the 2nd Brigade until after the district court ruled
on Plaintiffs’ motion for a preliminary injunction. The district
court denied that motion on November 5, 2004. Pls.-
Appellants’ Opening Br. at 12. Plaintiffs then amended their
complaint to challenge the Army’s notice and comment
efforts for the PEIS on January 4, 2005. On cross motions for
summary judgment, the district court denied Plaintiffs’
motion and granted Defendants’ motion. Judgment was
entered for the Army on April 29, 2005. Plaintiffs timely
appealed the district court’s grant of summary judgment. This
court denied Plaintiffs’ motion for an injunction pending this
appeal and expedited briefing and our hearing of this appeal.
Id. at 13.
II. Waiver
The district court held that Plaintiffs were barred from
arguing the insufficiency of the alternatives considered in the
PEIS because they had not submitted comments to the Army
during the PEIS process. ‘Ilio‘ulaokalani Coalition v. Rums-
feld, 369 F. Supp. 2d 1246, 1253 (D. Haw. 2005). The district
court found that “[w]ithout the benefit of such comments, the
Army did not have the opportunity to respond with an expla-
nation or address Plaintiffs’ concerns at the proper point in the
process.” Id. The district court rested its holding on Dep’t of
Transp. v. Public Citizen, 541 U.S. 752 (2004), and Havasu-
pai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991). See id.
The district court held that the Army’s publication of the
Notice of Availability (“NOA”) of the draft PEIS in the Fed-
eral Register “informed the public that it was soliciting input
on its proposal to transform, and that the Army-wide transfor-
mation would include Hawaii.”3 Id. “Absent exceptional cir-
3
The district court cites Gov’t of Guam v. United States, 744 F.2d 699,
701 (9th Cir. 1984), for the principle that publication in the Federal Regis-
ter constitutes formal notice. See id. While this may generally prove true,
its applicability is highly questionable in a case where another statute, in
this case NEPA, provides specific, additional notice requirements and
where Plaintiffs allege that those notice requirements were not met.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17463
cumstances,” stated the district court, “Plaintiffs’ allegations
cannot now serve as a basis to overturn the Army’s decision.”
Id. Following the rationale of Havasupai Tribe, the court
found no exceptional circumstances.
In applying the Vermont Yankee doctrine, we find clear dis-
tinctions from Havasupai Tribe and Public Citizen. In Ver-
mont Yankee, Plaintiffs challenged the Atomic Agency
Commission’s decision to grant an operating license to a
nuclear power plant. Vt. Yankee Nuclear Power Corp. v. Nat-
ural Res. Defense Council, 435 U.S. 519 (1978). During the
public comment process, plaintiffs submitted comments on
the draft EIS but did not participate in subsequent fact-finding
hearings as to the content of their comments concerning
energy conservation. The Supreme Court held that it is “in-
cumbent upon intervenors who wish to participate to structure
their participation so that it is meaningful, so that it alerts the
agency to the intervenors’ position and contentions.” Id. at
553. In Havasupai Tribe, where this court applied the Ver-
mont Yankee doctrine, the plaintiff failed to raise its claims
during the public comment period, despite the fact that its
comments were specifically solicited. 943 F.2d at 33. A simi-
lar factual situation arose in Public Citizen. Although the
plaintiff organization submitted comments, those comments
did not urge the agency to consider the alternatives that it later
raised in its claim that the EIS was insufficient. Public Citi-
zen, 541 U.S. at 764-65.
This court has drawn a distinction between situations in
which NEPA plaintiffs submitted comments that did not alert
the agency to their concerns or failed to participate when the
agency looked into their concerns and situations in which
plaintiffs allege procedural violations of NEPA. See Kunak-
nana v. Clark, 742 F.2d 1145, 1148 (9th Cir. 1984) (“The
rationale of Vermont Yankee has been applied in those
instances in which an interested party suggests that certain
factors be included in the agency analysis but later refuses the
agency’s request for assistance in exploring that party’s con-
17464 ILIO‘ULAOKALANI COALITION v. RUMSFELD
tentions.”). This court has declined to adopt “a broad rule
which would require participation in agency proceedings as a
condition precedent to seeking judicial review of an agency
decision.” Id.
In Northwestern Environmental Defense Center v. Bonne-
ville Power Administration, 117 F.3d 1520, 1535 (9th Cir.
1997), we explicitly distinguished between claims based on
procedural violations and situations like Vermont Yankee and
Havasupai Tribe that “involved the failure to raise a specific
factual contention regarding the substantive content of an EIS
during the NEPA public comment process.” Although the
Bonneville Power case dealt with the Northwest Power Act,
that act is analogous to NEPA in that it “governs the public
comment process.” Id.
[1] Although we do not overrule the district court’s denial
of summary judgment to Appellants on their claim that the
Army did not satisfy NEPA’s notice requirements,4 such a
holding is not necessary to underlie our determination that
Plaintiffs have not waived their opportunity to challenge the
range of alternatives considered in the PEIS. Kunaknana, 742
F.2d at 1148. The Supreme Court in Public Citizen reminds
us of the rule that the primary responsibility for NEPA com-
pliance is with the agency: “the agency bears the primary
responsibility to ensure that it complies with NEPA, and an
EA’s or EIS’ flaws might be so obvious that there is no need
for a commentator to point them out specifically in order to
preserve its ability to challenge a proposed action.” 541 U.S.
at 765 (internal citation omitted). Our court’s holding in
Friends of Clearwater v. Dombeck, 222 F.3d 552 (9th Cir.
2000), sheds light on how to interpret this “so obvious” stan-
dard. In that case, we held that an EIS was inadequate where
the agency had independent knowledge of the issues that con-
cerned Plaintiffs. Id. at 558-59. The record in this case is
4
That is not to say that the Army was wise in deciding to avoid notifica-
tion of potentially interested Hawaiian entities.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17465
replete with evidence that the Army recognized the specific
shortfall of the PEIS raised by Plaintiffs here: the failure to
support the determination to transform the 2nd Brigade in
place. See Dep’t of the Army Envtl. Law Div., Internal Army
Comments on the Preliminary Draft PEIS for Army Transfor-
mation (May 7, 2001) (“Comments on Draft PEIS”), at 1-6
(Comments of Paul Martin, NEPA Compliance Coordinator
for the Army’s Envtl. Ctr., Comments of Timothy Julius,
Office of the Dir. of Envtl. Programs), AR 0004465-66,
0004476-79; Email from Scott Farley, AR 0004486-88; After
Action Report at 1-6, AR 0088100-05. The Army had inde-
pendent knowledge of the very issue that concerns Plaintiffs
in this case, such that “there is no need for a commentator to
point them out specifically in order to preserve its ability to
challenge a proposed action.” Public Citizen, 541 U.S. at 765.
Plaintiffs have not waived their right to challenge the suffi-
ciency of the Army’s consideration of reasonable alternatives.
III. Consideration of Reasonable Alternatives
under NEPA
Strategic planning and the Army’s metamorphosis are the
Army’s business, not the courts’. What involves us, however,
is NEPA’s requirement that the Army prepare an EIS to
examine what effects any plans will have on the environment
(the extreme example would be a plan for nuclear testing that
would require extensive analysis). Here, the Army assumes
that it has an obligation to comply with NEPA. That is not at
issue. At issue is whether its compliance was adequate.
A. NEPA
The National Environmental Policy Act of 1969, com-
monly known as NEPA, “is our basic national charter for pro-
tection of the environment.” 40 C.F.R. § 1500.1(a) (2006).
The regulations implementing NEPA have developed proce-
dures to “insure that environmental information is available to
public officials and citizens before decisions are made and
17466 ILIO‘ULAOKALANI COALITION v. RUMSFELD
before actions are taken. The information must be of high
quality. Accurate scientific analysis, expert agency comments,
and public scrutiny are essential to implementing NEPA.” Id.
§ 1500.1(b).
[2] Congress passed NEPA “to protect the environment by
requiring that federal agencies carefully weigh environmental
considerations and consider potential alternatives to the pro-
posed action before the government launches any major fed-
eral action.” Lands Council v. Powell, 395 F.3d 1019, 1026
(9th Cir. 2005). “NEPA requires that a federal agency con-
sider every significant aspect of the environmental impact of
a proposed action . . . [and] inform the public that it has
indeed considered environmental concerns in its decisionmak-
ing process.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d
1291, 1300 (9th Cir. 2003) (internal quotation marks and cita-
tions omitted). “[T]o accomplish this, NEPA imposes proce-
dural requirements designed to force agencies to take a ‘hard
look’ at environmental consequences.” Id. NEPA does not,
however, mandate any substantive outcome. Lands Council,
395 F.3d at 1026. Under NEPA, all federal agencies, includ-
ing the Army, must prepare an environmental impact state-
ment (“EIS”) for all “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). That EIS “shall provide full and fair discussion
of significant environmental impacts and shall inform deci-
sionmakers 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.
B. Standard of Review
We review de novo the district court’s summary judgment
in appellees’ favor. Westlands Water Dist. v. U.S. Dep’t of
Interior, 376 F.3d 853, 865 (9th Cir. 2004). In so doing, we
must view the evidence in the light most favorable to Appel-
lants and determine whether there are any genuine issues of
material fact and whether the district court correctly applied
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17467
the substantive law. Envtl. Coal. of Ojai, 72 F.3d at 1414. An
agency decision may be set aside if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A).
In reviewing the sufficiency of an EIS, we employ “a rule
of reason” standard of review “that inquires whether an EIS
contains a reasonably thorough discussion of the significant
aspects of the probable environmental consequences.” Cal. v.
Block, 690 F.2d 753, 761 (9th Cir. 1982) (internal quotation
marks and citation omitted). This “rule of reason” standard is
not materially different from arbitrary and capricious review.
Lands Council, 395 F.3d at 1026 n.5. “We make a pragmatic
judgment whether the [Environmental Impact Statement’s]
form, content and preparation foster both informed decision-
making and informed public participation.” City of Carmel-
By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1150-51
(9th Cir. 1997) (citing Block, 690 F.2d at 761) (internal quota-
tion marks omitted). To discharge our duty, we must be satis-
fied that the agency has taken a “hard look” at the
environmental consequences of a decision. Id. at 1151.
C. The Army’s NEPA Process
The Army adopted a “tiered” approach to its compliance
with NEPA, preparing a programmatic EIS followed by a site-
specific EIS. NEPA regulations encourage agencies to “tier”
their environmental impact statements in some situations. See
40 C.F.R. § 1502.20.
“Tiering” refers to the coverage of general matters in
broader environmental impact statements (such as
national program or policy statements) with subse-
quent narrower statements or environmental analyses
(such as regional or basinwide program statements
or ultimately site-specific statements) incorporating
by reference the general discussions and concentrat-
17468 ILIO‘ULAOKALANI COALITION v. RUMSFELD
ing solely on the issues specific to statement subse-
quently prepared.
Id. § 1508.28.
Tiering is “encouraged . . . to eliminate repetitive discus-
sions of the same issues and to focus on the actual issues ripe
for decision at each level of environmental review.” Id.
§ 1502.20. Here, where the agency is moving from “a pro-
gram, plan, or policy environmental impact statement to . . .
a site-specific statement or analysis,” id. § 1508.28(a), tiering
is appropriate.
In the context of national forest management, we defined
the programmatic stage as the level “at which the [agency]
develops alternative management scenarios responsive to pub-
lic concerns, analyzes the costs, benefits and consequences of
each alternative in an environmental impact statement
(“EIS”), and adopts an amendable forest plan to guide man-
agement of multiple use resources.” Ecology Ctr., Inc. v. U.S.
Forest Serv., 192 F.3d 922, 923 n.2 (9th Cir. 1999). Follow-
ing the programmatic stage is the “implementation stage dur-
ing which individual site specific projects, consistent with the
forest plan, are proposed and assessed.” Id. A programmatic
EIS must provide “sufficient detail to foster informed
decision-making,” but an agency need not fully evaluate site-
specific impacts “until a critical decision has been made to act
on site development.” Friends of Yosemite Valley v. Norton,
348 F.3d 789, 800 (9th Cir. 2003) (quoting N. Alaska Envtl.
Ctr. v. Lujan, 961 F.2d 886, 890-91 (9th Cir. 1992) (quotation
marks omitted)).
The Army’s PEIS reached a deeper level of specificity than
is usual in that it named several specific units that will trans-
form in the Interim Phase and indicated that such transforma-
tion will take place “on-site.” Although the PEIS names the
2nd Brigade in Hawaii as one of these units set for transfor-
mation on-site, it does not undertake any analysis of the envi-
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17469
ronmental impacts associated with that transformation.
Following its PEIS, which designated the 2nd Brigade in
Hawaii as one the units to be transformed and committed to
on-site transformation, the Army undertook a SEIS for the
Hawaii transformation of that unit. Based on the PEIS’s deter-
mination that transformation of the 2nd Brigade was to take
place in Hawaii on Oahu, the SEIS considered three alterna-
tives, all of which involved transformation of the 2nd Brigade
in Hawaii on Oahu — the proposed action, a reduced-land-
acquisition alternative, and a no-action alternative. Appellants
argue that the Army’s tiered NEPA analysis failed to consider
reasonable alternatives, particularly the transformation of the
2nd Brigade outside of Hawaii.
D. Where the Army Went Wrong
[3] An EIS must describe and analyze alternatives to
the proposed action. Indeed, the alternatives analysis
section is the heart of the environmental impact
statement. The agency must look at every reasonable
alternative within the range dictated by the nature
and scope of the proposal. The existence of reason-
able but unexamined alternatives renders an EIS
inadequate.
Friends of Southeast’s Future v. Morrison, 153 F.3d 1059,
1065 (9th Cir. 1998) (internal citations and quotation marks
omitted); see 40 C.F.R. § 1502.14 (stating that consideration
of alternatives is the “heart of the environmental impact state-
ment.”); Methow Valley Citizens Council v. Regional For-
rester, 833 F.2d 810, 815 (9th Cir. 1987) (noting that “an
environmental impact statement must consider every reason-
able alternative” and that “the range of alternatives must be
sufficient to permit a reasoned choice.”), rev’d on other
grounds, 490 U.S. 332 (1989), aff’d on remand, 879 F.2d 705
(9th Cir. 1989).
17470 ILIO‘ULAOKALANI COALITION v. RUMSFELD
1. The PEIS: Selecting the 2nd Brigade
[4] We first consider whether the Army should have
undertaken analysis of the impacts of transforming the 2nd
Brigade in Hawaii in the PEIS. California v. Block, 690 F.2d
753 (9th Cir. 1982), sets the foundation for our review of the
PEIS’s consideration of alternatives. It guides the determina-
tion of when site-specific analysis must occur where there is
a programmatic EIS:
The detail that NEPA requires in an EIS depends
upon the nature and scope of the proposed action.
The standards normally applied to assess an EIS
require further refinement when a largely program-
matic EIS is reviewed. The critical inquiry in consid-
ering the adequacy of an EIS prepared for a large
scale, multi-step project is not whether the project’s
site-specific impact should be evaluated in detail, but
when such detailed evaluation should occur. NEPA
requires that the evaluation of a project’s environ-
mental consequences take place at an early stage in
the project’s planning process. This requirement is
tempered, though, by the statutory command that we
focus upon a proposal’s parameters as the agency
defines them. The requirement is further tempered
by the preference to defer detailed analysis until a
concrete development proposal crystallizes the
dimensions of a project’s probable environmental
consequences. When a programmatic EIS has
already been prepared, we have held that site-
specific impacts need not be fully evaluated until a
“critical decision” has been made to act on site
development. This threshold is reached when, as a
practical matter, the agency proposes to make an “ir-
reversible and irretrievable commitment of the avail-
ability of resources” to a project at a particular site.
Id. at 761 (internal citations omitted).
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17471
[5] The agency’s challenge and ours is to find the right bal-
ance between the efficiency benefits of tiering, described in
40 C.F.R. § 1502.20, deference to the agency’s definition of
the purpose and need of the proposed action, and the recogni-
tion that the PEIS constrains future decision-making and must
therefore analyze alternatives in sufficient detail to prevent
foreclosure of options with insufficient consideration. Id. at
762-63.
Appellants argue that the PEIS made the decision to com-
mit resources to a particular site — the transformation of the
2nd Brigade in Hawaii. The Army counters that it did not
commit to transform the 2nd Brigade until the issuance of the
SEIS ROD, and that even though the PEIS identified the 2nd
Brigade as targeted for transformation during the Interim
Phase, the Army reserved judgment until completion of the
SEIS. Fed. Appellees’ Resp. Br. at 32. The comments of the
Army’s own experts indicate otherwise.
[6] The minutes of a June 2002 post-PEIS, pre-SEIS Army
planning meeting indicate that the Army’s own experts recog-
nized that the decision to commit resources to transformation
of the 2nd Brigade in place was made during the PEIS and
therefore that site-specific analysis should have been
undertaken in the PEIS. The conclusions articulated in the
PEIS ROD as to in-place transformation of the 2nd Brigade
had little support in the document and no analysis of alterna-
tive sites, requiring the SEIS to provide analysis supporting a
decision made in the PEIS. Paul Martin, of the U.S. Army
Environmental Center, commented on the draft PEIS:
Interim Force considerations are ripe for reasonably
detailed analysis. . . . Interim Force development is
an imminent proposal requiring a near term decision
and commitment of Army resources that will have
on the ground impacts within the next five to eight
years. . . . Paragraph screams that the Army plans to
make a Major [sic] resource allocation decision on
17472 ILIO‘ULAOKALANI COALITION v. RUMSFELD
the Interim Force without consideration of alterna-
tives.
Comments on Draft PEIS at 4, AR 0004465.
In addition, the SEIS explicitly ruled out consideration of
alternatives that stationed the 2nd Brigade outside of Hawaii
on the grounds that this would be inconsistent with the PEIS.
Once the PEIS was issued, there was no longer a question of
whether the 2nd Brigade would transform in Hawaii, only a
matter of how.
Appellees also argue that all Army units are scheduled to
transform under the thirty-year plan and therefore that the 2nd
Brigade is no different from any other Brigade in terms of the
Army’s decision to transform in-place. Fed. Appellees’ Resp.
Br. at 35. The problem with this argument is that the 2nd Bri-
gade is scheduled to transform much sooner than most other
Brigades — the site-specific plans for the 2nd Brigade are
more crystallized than those for the brigades that will not
undergo transformation until the Final Phase.
The Army’s own experts realized that the Army made site-
specific decisions in the PEIS without analysis of their
impacts or consideration of reasonable alternatives, as
required by NEPA. Despite this, the Army argues that it was
appropriate to defer analysis until the SEIS, using the princi-
ples of “tiering” as its crutch. The Army settled on transfor-
mation of the 2nd Brigade in Hawaii in the PEIS; however,
it reached this decision with no analysis of the environmental
impacts or of reasonable alternatives to such a transformation.
While there is nothing per se improper about reaching these
decisions at the programmatic stage, it is improper to do so
without undertaking the analysis required by NEPA when
those decisions are made.
2. The SEIS
Without having considered alternatives to transformation of
the 2nd Brigade in Hawaii in the PEIS, the Army had an obli-
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17473
gation to consider such alternatives in the SEIS. The Army
argues that the scope of reasonable alternatives to be consid-
ered in the SEIS was bound or limited by the PEIS’s decision
to transform in Hawaii as articulated in the SEIS purpose and
need statement.
The way the Army would have it, it was neither required
to examine alternatives to transformation in Hawaii in the
PEIS (because the site-specific threshold had not yet been
crossed) nor in the SEIS (because on-site transformation of
the 2nd Brigade was mandated by the PEIS as articulated in
the SEIS purpose and need statement). The Army can’t have
it both ways. Either it needed to explain in the PEIS its deci-
sion to transform the 2nd Brigade in Hawaii and consider rea-
sonable alternatives in the PEIS or it needed to explain that
decision in the SEIS, but the Army cannot simultaneously
argue that the decision had been made in the PEIS and that it
had not. Somewhere, the Army must undertake site-specific
analysis, including consideration of reasonable alternatives.
3. Reasonable Alternatives
[7] The scope of reasonable alternatives that an agency
must consider is shaped by the purpose and need statement
articulated by that agency. The Army must consider all rea-
sonable alternatives within the purpose and need it has
defined. See Nw. Coalition for Alternatives to Pesticides
(NCAP) v. Lyng, 844 F.2d 588, 592 (9th Cir. 1988) (“[I]t is
the scope of the program that influences any determination of
what alternatives are viable and reasonable.”). Appellants ask
us to find that the Army defined the purpose and need state-
ment in the SEIS too narrowly.5 We do not see that as the
5
Appellants rely on the principle that while an agency has the discretion
to define the purpose and need of a project, it may not “define its objec-
tives in unreasonably narrow terms.” City of Carmel-By-The-Sea, 123 F.3d
at 1155. Appellants note internal Army commentary before the SEIS was
undertaken in support of their argument that the Army defined its objec-
17474 ILIO‘ULAOKALANI COALITION v. RUMSFELD
problem. What is missing is the consideration of alternate
ways to accomplish its stated mission. The Army states its
mission as follows: “to enable the Army to achieve the force
characteristics articulated in the Army Vision in the most
timely and efficient manner possible and without compromis-
ing readiness and responsiveness. . . . Transformation is
needed to address the changing circumstances of the 21st
Century.” Final PEIS at 1-2, AR 0003865. It then leaps to the
assumption that transformation in Hawaii or no action are the
only alternatives. This is where the impermissible “narrow-
ing” takes place. The Army violated NEPA by not consider-
ing alternatives that include transformation of the 2nd Brigade
outside of Hawaii.6
tives too narrowly in the PEIS. “The PEIS leaves us short on alternatives.
The only alternatives we have are no action versus action. The P&N state-
ments are crafted so tightly that we may be restricting ourselves too
much.” After Action Report at 5-6, AR 00088104-05. Paul Martin indi-
cates that the framing of the transformation “has foreclosed any rational
consideration of alternatives, . . . to meet the stated purpose and need.”
Comments on Draft PEIS at 1, AR 0004478. Timothy Julius commented
that the “EIS is woefully inadequate: The alternatives are meaningless.
Where is the ‘analysis’ of installations as initiated in the NOI? . . . The
decision provides no starting point or analysis that would be useful to
installations. Based on this document, the Army is forcing the installations
to individually justify transformation.” AR 0004485. In addition to
describing how the Army’s framing provides no real alternatives for con-
sideration, Julius’ comments also drive home the fact that the Army’s
approach here was backwards: rather than making its site decisions with
full information about the impacts of choosing those sites, the Army made
its site decisions and asked the installations to justify those decisions in
their site-specific EISs.
These comments, as we see them, simply highlight the Army’s failure
to consider reasonable alternatives in either the PEIS or the SEIS.
6
The Army argues that the PEIS limits its framing of the SEIS’s purpose
and need to transforming the 2nd Brigade in Hawaii. This argument
assumes that the Army made this very decision in the PEIS (i.e., transfor-
mation of the 2nd Brigade in Hawaii) in a manner consistent with its obli-
gations under NEPA. We reject this assumption and find that the Army
erred by making unsupported site-specific determinations. The Army’s
reliance on “tiering” is unhelpful to its claims.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17475
[8] The issue we consider is whether transformation of the
2nd Brigade outside of Hawaii is a reasonable alternative in
the context of the Army’s purpose and need: “to enable the
Army to achieve the force characteristics articulated in the
Army Vision in the most timely and efficient manner possible
and without compromising readiness and responsiveness.” Id.
This purpose “is not, by its own terms, tied to a specific parcel
of land,” Methow Valley, 833 F.2d at 815, indicating that
transformation outside of Hawaii is a reasonable alternative.
Our sister circuit has held that “[w]hen the proposed action
[here the transformation of the 2nd Brigade] is an integral part
of a coordinated plan to deal with a broad problem, the range
of alternatives that must be evaluated is broadened.” City of
Alexandria v. Slater, 198 F.3d 862, 868 (D.C. Cir. 1999)
(quoting Natural Res. Defense Council v. Morton, 458 F.2d
827, 835 (D.C. Cir. 1972)) (quotation marks omitted).
Between the purpose articulated in the PEIS and that articu-
lated in the SEIS, the Army made the decision to require
transformation of the 2nd Brigade in Hawaii. This decision
was never explained or justified and foreclosed alternatives
that could have been consistent with the Army’s stated mis-
sion.
Furthermore, the record is unambiguous — compelling our
finding that transformation of the 2nd Brigade outside of
Hawaii was a reasonable alternative that the Army was
required to consider under NEPA. First, the Army’s own
experts recognized that the failure to undertake this analysis
in the PEIS created a problem under NEPA — an unsupported
conclusion needing to be justified in the SEIS was a back-
door path avoiding analysis. Second, the Army had already
started transformation of other west-coast brigades, including
two in Ft. Lewis, Washington, an alternative location where
transformation of the 2nd Brigade could happen at potentially
lower cost to the environment, and another brigade, the 2nd
Calvary from Louisiana, which was moved for its transforma-
tion.
17476 ILIO‘ULAOKALANI COALITION v. RUMSFELD
a. Internal Acknowledgment of the Need to Consider Off-
island Transformation
The record is replete with expressions of concern that the
Army never explained its decision to not consider alternatives
involving transforming the 2nd Brigade outside of Hawaii.
Army personnel and Hawaiians both sought an answer to the
question, “Why Hawaii?” See After Action Report at 1, 3, AR
0088100, 0088102. This concern about incomplete informa-
tion underpinning the decision to transform in Hawaii was
raised within the Army during the PEIS process and in prepa-
ration for the SEIS, and by the public during scoping for the
site-specific EIS.
From the outset, Army staff expressed concern about the
scope of the PEIS and its failure to explain siting decisions.
See supra note 5 (reviewers noted in May 2001 that the fram-
ing of the transformation “foreclosed any rational consider-
ation of alternatives, . . . to meet the stated purpose and need,”
AR 0004478, the PEIS was “woefully inadequate,” “[t]he
alternatives meaningless,” and “the Army is forcing the instal-
lations to individually justify transformation,” AR 0004485.).
The PEIS never responded to these concerns. Following the
completion of the PEIS and in preparation for the SEIS, Army
staff comments revealed that “[t]he PEIS leaves us short on
alternatives. The only alternatives we have are no action ver-
sus action. The P&N statements are crafted so tightly that we
may be restricting ourselves too much.” After Action Report
at 5-6, AR 0088104-05. The minutes of that meeting read:
A major issue that surfaced during group discussion
was the fact that the PEIS does not contain specific
language about why each of the five sites was
selected. It would have been helpful to have it there
so that each site could refer to the PEIS when que-
ried about reasons for selection. . . . the main issue
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17477
now is that the ROD has no supporting analysis in
the PEIS.
Id. at 3, AR 0088102.
Lieutenant Colonel Kozlowski noted that it should be up to
the Major Army Commands to explain the siting decisions in
their specific EISs — the Headquarters of the Department of
the Army (“HQDA”) should have done that. He thought that
these questions should be answered by Headquarters outside
of the PEIS in a supplemental EIS. Id.
In a question and answer session at this meeting, in
response to a question asking whether it would be better for
Army Headquarters to develop a unified purpose and need
statement for each location chosen to transform, Major Army
Command attorneys responded:
The PEIS is what it is, as is the ROD. HQDA can’t
effectively supplement those documents, and that
will be a potential weakness. However, it does give
installations the right to look at different training
site alternatives. LTC Kozlowski will take the issue
to the G-3, who will probably put together a task
force to correct the mistake of not addressing loca-
tion selections in the PEIS.
Id. at 5, AR 0088104 (emphasis added).
In response to a question about whether it is “reasonable for
the public to ask why on the siting issue,” the same attorneys
answered:
Yes; the ROD makes a decision that is not based on
any analysis. Installations need a position paper on
why the sites were picked, so that we have an admin-
istrative record of the decision that can be refer-
enced. . . . either HQDA has to revise the ROD to
17478 ILIO‘ULAOKALANI COALITION v. RUMSFELD
address the issue or installations will have to look at
stationing alternatives. . . . The only alternatives are
to have HQDA bear the burden or have the installa-
tions bear it. Installations will probably have to drive
on.
Id. at 6, AR 0088105.
b. The Army’s Rationale for Not Analyzing Alternatives
The Army now argues that the record demonstrates that
transformation of the 2nd Brigade in Hawaii is of strategic
importance, that transformation in Hawaii is critical for the
training of soldiers in “conditions that would arise in expected
combat situations,” and therefore that transforming outside of
Hawaii is not a reasonable alternative. Final SEIS at 1-4, AR
0051275. This argument is undermined by the record. The
SEIS purpose and need statement offers three factors to
explain why the 2nd Brigade was chosen to transform into a
Stryker Brigade: (1) location of the 2nd Brigade within the
strategically important Pacific Rim; (2) the terrain and condi-
tions in Hawaii which most closely approximate those likely
to be found in the Pacific Rim; (3) proximity to major air-
bases and seaports makes deployment easier. Unfortunately
for the Army, however, the SEIS does not support its own
purpose and need statement, or a finding that transformation
of the 2nd Brigade in Hawaii is the only reasonable alterna-
tive. This finding is undermined by evidence developed in the
SEIS.
(1) Location in the Pacific Rim and Proximity to Airbases
and Seaports
[9] As the SEIS’s Statement of Need points out, other loca-
tions in the United States with proximity to the Pacific Rim
have been designated for early transformation: “There are two
other SBCTs on the Pacific coast of the continental United
States (Alaska and Washington) to support deployment to the
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17479
critically important Pacific Rim . . . .” Final SEIS at 1-5, AR
0051576. Nothing in the record distinguishes Hawaii from
Alaska or Washington.
Transformation of brigades at Fort Lewis, Washington was
part of the Initial Phase of Army Transformation. The Army
had already started transformation of these other west-coast
brigades, creating alternative locations where transformation
of the 2nd Brigade could happen at potentially less detriment
to the environment. Furthermore, it is clear that the Army
knew that it had the authority to consider moving the 2nd Bri-
gade to Washington or Alaska for transformation. See Dep’t
of the Army, Strategic Envtl. Assessment for Army Transfor-
mation, Initial Report (Nov. 17, 2000), at 30, AR 0005547
(listing “[r]e-stationing of brigades to take advantage of train-
ing assets and opportunities” as a “type[ ] of proposal[ ] that
must be considered” in NEPA analysis.). For example, the
Army moved another brigade, the 2nd Armored Cavalry Reg-
iment from Louisiana to Fort Lewis for its transformation into
a Stryker Brigade Combat Team. See Press Release, Joint
Readiness Training Center and Fort Polk Public Affairs
Office, Fort Polk to Receive New Infantry Brigade Combat
Team (July 23, 2004), AR 0009561. Thus, the Army’s argu-
ment that Hawaii is close to the Pacific Rim and has access
to seaports and airbases does not answer the question, “Why
Hawaii?”
(2) The Importance of Hawaii’s Terrain and Conditions
The Army also argues that Hawaii’s unique terrain and
conditions mandate transformation in Hawaii. At oral argu-
ment and in subsequent supplemental briefing, Appellees
focused our attention on their argument that Hawaii’s terrain
is unique in the United States and most closely approximates
tropical terrain in the Pacific Rim and elsewhere in the world.
The Army cites a 1997 study on Installation Training Capac-
ity by Army Headquarters, which notes that “[t]raining areas
on Oahu, Hawaii are unique in the Army’s training land
17480 ILIO‘ULAOKALANI COALITION v. RUMSFELD
inventory. They are the only mountainous jungle setting.”
HQDA, Training Directorate, Office of the Dep. Chief of
Staff for Operations and Plans, Installation Training Capacity
(ITC) Phase 1 Study Report (Dec. 31, 1997), at 11, AR
0002886. These documents refer to the Kawailoa Training
Area (“KLOA”) on Oahu.
KLOA consists of 23,348 acres on the western slope of the
Ko’olau Mountain Range, of which 5,310 acres are suitable
for maneuver training activities. Final SEIS at 7-14, 7-15, AR
0051956-57. “KLOA can support small infantry unit maneu-
vers and helicopter. The remaining land is considered unsuit-
able for maneuver training, but can support mountain and
jungle warfare training. In these areas, troop deployment is
limited to single file, small unit movement on ridgelines.” Id.
at 7-15, AR 00551957. Based on this statement in the SEIS,
Appellee argues that the Army’s assertion that Hawaii offers
unique training areas for the 2nd Brigade once it has been
transformed into a Stryker Brigade is “fully consistent with
the actual training terrain available.”
[10] While the Army may be correct that KLOA provides
unique and important mountainous jungle terrain for a light
infantry unit, the Army has failed to account for the fact that
no Stryker training is proposed for KLOA. In fact, KLOA
cannot support Stryker vehicles and is unsuitable for Stryker
Brigade training. Stryker vehicles are eight-wheeled, 23-foot
long, 9-foot wide, 20-ton combat vehicles. Final SEIS at 2-33,
AR 0051318. While the actual vehicle employed by the SBCT
“may vary from the current Stryker vehicles as the system is
developed,” it “overall will have the same characteristics as
the current Stryker.” Id. “Because of the limitations of the
Stryker, most mounted movement takes places on roads or
unrestricted terrain.” Id. at 2-40, AR 0051325. The SEIS indi-
cates that not a single acre of KLOA is maneuver-acreage for
mounted Stryker training. Stryker vehicles would only be
appropriate in KLOA along Drum Road in transit to other
locations. Id. at 2-37, AR 0051322. Stryker training focuses
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17481
on “[u]rban operations training” and will employ “new urban
warfare facilities.” Id. at 2-36, AR 0051321.
At the time that the Army noted the unique training that
KLOA’s mountainous jungle terrain would provide the Army,
Stryker brigades did not yet exist. The SEIS indicates that,
while that jungle terrain may be unique and important for
light infantry brigades like the current 2nd Brigade, KLOA
cannot support Stryker vehicles, and no mounted training is
envisioned or possible there. The fact that Oahu has jungle
terrain does not alone justify the elimination of alternatives
involving transformation of the 2nd Brigade outside of
Hawaii.
[11] Ultimately, the question raised by the Army’s own
experts during the PEIS process and following the publication
of the ROD based on the PEIS, and by the public in the scop-
ing process for SEIS — “Why Hawaii?” — was never
answered. Transformation of the 2nd Brigade outside of
Hawaii was a reasonable alternative that the Army was obli-
gated under NEPA to consider. Its failure to do so renders the
Army’s EISs inadequate. See Friends of Southeast’s Future,
153 F.3d at 1065.
E. Remedy
If we were to accede to the Army’s assertion that its state-
ment of purpose and need, including its site-selection, cannot
be challenged, the concept of tiered EISs is meaningless. An
agency could avoid consideration of reasonable alternatives
by making a binding site-specific decision at the program-
matic stage without analysis, deferring consideration of site-
specific issues to a SEIS. Then at the SEIS stage, the agency
simply could point back to the analysis-free decision at the
programmatic stage, as the Army has done here, and find that
the scope of its site-specific analysis is constrained by the
PEIS. The SEIS would merely operate to justify a decision
made analysis-free at a previous stage.
17482 ILIO‘ULAOKALANI COALITION v. RUMSFELD
[12] The result: the Army never undertakes any analysis of
alternatives to Hawaii. What is the cure? We conclude that the
practical solution is to remand, requiring the preparation of a
supplemental SEIS. There is no magic as to which EIS is the
vehicle for site-specific analysis. It would have been perfectly
appropriate for the PEIS to forgo any decision as to specific
sites, leaving the analysis and recommendations to the SEIS.
The Army’s mistake here was to commit to the transformation
of the 2nd Brigade in Hawaii without considering alternatives
in either the PEIS or the SEIS.
We conclude that this can now be done most appropriately
in a supplemental SEIS. As the Army’s pre-SEIS, June 2002
meeting indicates, the failure of Army Headquarters to
explain its decision at the programmatic phase requires each
separate installation to consider a broader range of alterna-
tives in its SEIS than would otherwise have been required.
Therefore, we reverse and remand for supplemental analysis
of alternative locations in a supplemental SEIS.
AFFIRMED IN PART, REVERSED IN PART.
REMANDED.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17483
Volume 2 of 2
17484 ILIO‘ULAOKALANI COALITION v. RUMSFELD
BEA, Circuit Judge, dissenting:
This case questions whether a court can second-guess the
Army when it decides that modernizing its brigade units as
quickly as possible, while maintaining combat readiness, can
be done only “in place,” i.e., at each brigade’s present base
location. In the name of environmental “concerns,”1 the
majority would require the Army to consider what it has
already reasonably rejected: whether it should consider mov-
ing Army units around the country for the new training—
regardless it would cause delay in modernizing, lack of
combat-readiness and entail prohibitive costs—because of
possible environmental impacts training “in place” could
cause.
I respectfully dissent. The purpose and need of the Army’s
overall transformation is to modernize its brigade units as
quickly and efficiently as possible, while maintaining combat
readiness. To further that purpose and need, the Army reason-
ably decided such transformation would proceed “in place.”
Not only have plaintiffs failed to raise any challenge to the
Army’s purpose and need of quick transformation while
maintaining combat readiness, they have also failed to chal-
lenge “in place” transformation as arbitrary and capricious. I
would find that plaintiffs have failed to argue their only tena-
ble ground for relief: that the Army improperly ruled out relo-
1
I place the word in quotes because it may have acquired a special
meaning in the context of environmental litigation. Where other litigants
have “objections,” environmental groups seem to have “concerns.” This
may imply the “concerned” possess a greater commitment, sensitivity and
objectivity. Nonetheless, for our purposes, to have effect in litigation,
“concerns,” like objections, must be voiced and justified, or be lost by
doctrines of waiver and exhaustion of administrative remedies.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17485
cation of brigades as an alternative to “in place” transforma-
tion. But in fact, the decision by the Army to transform units
“in place” was reasonable and is entitled to deference.
To add insult to injury, the majority would allow plaintiffs
to be the vehicle for this second guessing even though the
plaintiffs raised no objections or “concerns” on the issue of
alternate locations for transformation in the agency proceed-
ings which preceded this action. In so doing, the majority
aims to strengthen NEPA compliance by cutting out the legs
of the administrative process on which it stands; it accom-
plishes this result by misapplying and retooling precedent. I
would affirm the district court, which held the plaintiffs failed
to raise their “concerns” through the prescribed administrative
process and should therefore not be granted relief when they
arrive at the federal courts.
Finally, the majority substitutes its own judgment for the
Army’s as to whether there exists a reasonable alternative to
“in place” transformation. The Army did not have to consider
relocation of the 2nd Brigade in Hawaii because it had already
determined transformation of all its brigades including the
2nd Brigade would be “in place.” The Army did have to con-
sider reasonable alternatives to full transformation in Hawaii,
including a no-action alternative, and the Army did so. The
Army adequately considered environmental impacts to
Hawaii by alternatives consistent with the purpose and need
of the project.
I
A
In 1999, the Secretary of the Army and Chief of Staff of the
Army articulated a vision of transformation of all Army bri-
gade units into what the Army thought would be a more effec-
tive and dominant force, responsive to what it saw as new and
17486 ILIO‘ULAOKALANI COALITION v. RUMSFELD
different strategic threats to the nation. In 2000, the Army
published notices of its intended transformation in the Federal
Register and in USA TODAY. The Federal Register notice
informed the public the Army intended to prepare a Program-
matic Environmental Impact Statement (PEIS);2 the USA
TODAY notice announced the Army was seeking public input
for the PEIS. The initial draft of the PEIS was completed in
2001.3 The Army then published notices the draft PEIS was
available to the public for the asking. These notices were
again published in the Federal Register and in USA TODAY.
Those notices announced a public comment period during
which members of the public could submit comments that
would be considered before the final PEIS issued.
Given this series of published notices, it is clear the Army
met its notice obligations under the National Environmental
Policy Act of 1969, 42 U.S.C. § 4321 et seq. (NEPA). 40
C.F.R. § 1506.6(b)(2) provides that for each “action with
effects of national concern notice shall include publication in
the Federal Register and notice by mail to national organiza-
tions reasonably expected to be interested in the matter . . . .”
The Army transformation program was national in scope; no
program is more “national” in scope than the transformation
of the whole Army, located over all the states and in foreign
2
Consistent with the PEIS’s statement of purpose and need, the Federal
Register notice informed readers: “The Army will implement transforma-
tion as rapidly as possible, while continually maintaining the warfighting
readiness of its operational forces . . . .” 65 Fed. Reg. 78476 (Dec. 15,
2000). It also noted “all aspects” of the Army would undergo transforma-
tion. Id.
3
The draft PEIS informed readers: “For the foreseeable future, the Army
would expect to conduct its transformation of existing operating forces
‘in-place.’ Relocation of units would not be anticipated.” Draft Program-
matic Environmental Impact Statement (Oct. 2001), at 4-3, AR 0003714.
It also informed readers that “[t]he Army has tentatively identified three
additional brigades . . . for sequenced transformation [including] the 2nd
Brigade, 25th Infantry Division (Light), Schofield Barracks, Hawaii.” Id.
at 2-9, AR 0003597.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17487
countries. Plaintiffs are clearly not a “national organization”
reasonably expected to be interested in the national transfor-
mation, nor do they claim to be. As such, the Army correctly
chose to and did comply with Council on Environmental
Quality (CEQ)4 and Army regulations. It published in the Fed-
eral Register (as required) and in USA TODAY (as unrequired
outreach) and it did not mail to plaintiffs since they are not a
national organization, a point they concede. The notice was
adequate. Indeed, the majority cannot bring itself to find oth-
erwise. Although vigorously urged by plaintiffs to reverse on
this ground, it does not overrule the district court’s denial of
summary judgment to the plaintiffs for inadequacy of the
notice. Maj. Op. at 17464.5
B
Plaintiffs do not challenge—even on appeal—the most
important determination by the Army in this case: “in place”
transformation of all brigade units. The Army discussed and
analyzed the impacts of its overall transformation in the PEIS.
The PEIS stated the purpose and need of overall Army trans-
formation was to modernize the Army’s units “in the most
timely and efficient manner possible and without compromis-
ing readiness and responsiveness.” Final Programmatic Envi-
ronmental Impact Statement (Feb. 2002), at 1-2, AR 0003865.
To that end, the PEIS determined that “the Army would
expect to conduct its transformation of existing operating
forces ‘in place.’ Relocation of units would not be anticipat-
ed.” Id. at 4-3, AR 0004000. Plaintiffs do not quarrel with any
of this; rather, they aim to have the court create a requirement
4
The CEQ sits within the Executive Office of the President and is com-
posed of three members appointed by the President to serve at his plea-
sure, by and with the advice and consent of the Senate. 42 U.S.C. § 4342.
5
Albeit not without a “tsk-tsk” footnote counseling the Army it was not
“wise” in its notification. Maj Op. at 17464 n.4. This merely serves to
emphasize the Army did comply with legal requirements; it just didn’t do
so in a way that pleases those in the judiciary who would be its editors.
17488 ILIO‘ULAOKALANI COALITION v. RUMSFELD
that the Army analyze alternate locations for training each bri-
gade notwithstanding the Army’s reasoned and unchallenged
decision to transform units “in place.” Once the decision to
transform all brigade units “in place” was made, the Army
was not obligated to consider stationing alternatives; those
alternatives were by definition unreasonable and irrelevant.
The fact the PEIS identifies the 2nd Brigade as an Interim
Force brigade does not change this conclusion. Every unit in
the Army is either in the Initial (first), Interim (second), or
Objective (third) Phase. All eventually will transform from
traditional brigades to Stryker brigades. Whether the 2nd Bri-
gade was selected in the PEIS or later in a different document,
the fact remains that because all Army units will be trans-
formed “in place” to ensure timely transformation and readi-
ness, stationing alternatives need not be considered.
The plaintiffs could have challenged the Army’s “in place”
decision which ruled out alternative relocations of the units.
However, the challenge would have had to prove the Army’s
decision was “arbitrary and capricious,” for that is the correct
standard of review. See 5 U.S.C. § 706; Lands Council v.
Powell, 395 F.3d 1019, 1026 n.5 (9th Cir. 2005) (arbitrary
and capricious standard applies to claims of inadequate analy-
sis under NEPA). They did not so challenge; they do not even
now. This is the principal reason why this appeal is without
merit. Plaintiffs’ argument that the Army had to consider relo-
cation of the 2nd Brigade ignores (and fails to challenge) the
elephant in the living room: the Army had already determined
that to achieve its purpose and need, transformation of all
units, including the 2nd Brigade in Hawaii, would be accom-
plished “in place.”
C
1
Even if plaintiffs had properly challenged the Army’s “in
place” transformation of all Army units, I would find the
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17489
Army’s exercise of judgment in choosing it was not arbitrary
and capricious. Like any other federal agency, the Army must
comply with NEPA; it is not exempt just because it guards
our national security. And, as with other federal agencies,
NEPA does not mandate environmentalist groups to tell the
Army how to do its job. What NEPA tells the Army is what
procedures it must follow to analyze environmental issues.
See Powell, 395 F.3d at 1026-27. That is, NEPA mandates
how the Army should go about deciding these issues; not
what it should decide as to any of them. Finally, the proce-
dures must be reasonable in the circumstances, or within the
purpose and need of the agency’s project. See Friends of
Southeast’s Future v. Morrison, 153 F.3d 1059, 1067 (9th Cir.
1998) (“When the purpose [of a project] is to accomplish one
thing, it makes no sense to consider the alternative ways by
which another thing might be achieved.” (quoting City of
Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986))
(emphasis omitted)). Given the sequence of strategic deci-
sions by the Army, its decision to transform units “in place”
was not “arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law.” 5 U.S.C. § 706.
Suppose the Army wanted to set up an artillery firing range
(purpose) at one of several locations. All else being equal, the
Army should consider at which location the shells will do the
least damage to the flora and fauna. It does not make much
difference to the Army where the shells fall (need). But if
what is proposed is to deny the enemy San Francisco Bay
(purpose) by fortifying the high ground bordering it, with can-
non that can shoot down to rake the enemy ships that may be
in the Bay, the Army is not made to consider the alternative
of placing the cannon on the flat, all to save some trees that
grow on the hills’ rim. Nor can the Army be made to spare
the trees if they get in the way of moving the cannon quickly.
The Army would require shoot down capability and move-
ment in its cannon (need).
When the Army spells out its purpose and need for a proj-
ect, this court can review its decision not to consider alterna-
17490 ILIO‘ULAOKALANI COALITION v. RUMSFELD
tive locations less harmful to the environment only when the
suggested alternatives are reasonable, given the purpose and
need of the Army’s project. That review is limited to the ques-
tion whether the Army acted arbitrarily and capriciously—
that is, unreasonably—in failing to consider the alternatives.
5 U.S.C. § 706; Powell, 395 F.3d 1019, 1026 n.5. Here, “in
place” transformation was not unreasonable in view of the
purpose and need of the Army’s transformation: relocation
was ruled out as a reasonable possibility because the Army’s
purpose and need to transform its units to Stryker Brigades
must be done as quickly as possible while maintaining
combat-readiness. This case is like the location of the cannon
on the hill, not the selection of the artillery range.
2
As noted, the decision to transform “in place” was within
the Army’s stated purpose and need of upgrading its units
quickly while maintaining readiness. The Army has stated all
Army units will undergo transformation within the next thirty
years. The consideration of alternate locations for transforma-
tion would require taking into account all the places to which
each of the brigades could be transferred for training. Con-
ceivably, the Army could consider relocating each brigade to
another base. But, it would be fatuous to consider relocating
units merely for the exercise of relocating them. That would
simply be a bureaucratic game of “musical chairs.”
If consideration is to be given to alternate locations for
training, there must be some Army bases where the training
can take place with less danger of environmental harm than
there is to other bases. Indeed, there may be a base so bereft
of flora, fauna and archeological troves that little harm could
be done there by 20-ton Stryker vehicles, no matter how
sophisticated the investigative techniques used by environ-
mental groups such as plaintiffs. Call such a location Camp
X. The majority would have each of the Site-Specific Envi-
ronmental Impact Statements (SEISs) for each of the brigades
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17491
“consider” relocation to Camp X. If to “consider” is to be
anything more than a doff of the hat to environmental groups,
any reasonable administrator will actually be obligated to
decide that each brigade should be transformed at Base X.
The result is that each of the seventy brigade-sized units
would be transformed, one at a time, at Camp X. Equipping
and transforming a Stryker Brigade Combat Team takes two
years, plus an additional period to reach Final Operational
Capability. Suppose the total time to achieve transformation
of a brigade is two and a half years: that computes to 175
years to achieve the overall transformation the Army needs
done in thirty. In 175 years, perhaps even the Stryker will be
surpassed by technology and be considered as effective a mil-
itary artifact as is now the rowboat used to ferry General
Washington to Trenton.
Ah, but the 175 years would be cut to thirty, if six such
Camp Xs were designated. But, how would one maintain
combat-readiness for the six itinerant brigades which, like the
soul of the Flying Dutchman, would have to move each 2.5
years to the bases of the brigades being sent to the six Camp
Xs, and never reach their original homes until the end of the
program? Charged with the “purpose and need” of transform-
ing quickly and maintaining combat-readiness, can we say it
was “arbitrary and capricious” for the Army to determine that
each brigade should transform “in place,” that is, at its own
home base? The Army chose to foreclose a more circuitous
route to transformation in the PEIS, and its decision is entitled
to deference. Preparing an EIS “necessarily calls for judg-
ment, and that judgment is the agency’s.” Westlands Water
Dist. v. United States Dept. of the Interior, 376 F.3d 853, 866
(9th Cir. 2004) (internal quotation marks omitted).
This is not to deny that the Army may relocate forces dur-
ing its transformation. The Army decided to relocate the 2nd
Armored Cavalry Regiment from Fort Polk, Louisiana, to Fort
Lewis, Washington, so that a Brigade Combat Team could be
created at Fort Polk. How can this lawful exercise of agency
17492 ILIO‘ULAOKALANI COALITION v. RUMSFELD
power translate into a requirement that the Army must con-
sider relocation of all units or relocation of the 2nd Brigade?
A particular relocation would have to conform to applicable
requirements, including perhaps NEPA requirements, but
those are not at issue here. The decision to relocate a particu-
lar regiment has no bearing on NEPA requirements involving
the Army’s overall transformation. The relocation of one regi-
ment does not render relocation of other regiments reasonable
or feasible, particularly where the Army has cited the strategic
importance of the Pacific Rim. Nor do individual relocations
estop the Army from stating that large-scale relocation is out-
side the scope of the transformation process.
II
From the adequacy of the notice, see supra Part IA, one
must conclude that because the plaintiffs had notice that
Army units—including the 2nd Brigade—would be trans-
formed “in place” and yet failed to take the opportunity to
comment, complain or voice any “concerns,” plaintiffs should
be barred from bringing the present action. This section con-
cludes that plaintiffs waived any challenges to Army transfor-
mation in Hawaii when they failed to comment on the Army’s
EISs, which did not contain any errors that were “so obvious”
that plaintiffs’ failure to comment can be excused.
A
Anyone who had written to the Army or navigated to the
Army webpage as provided in the 2001 notices would have
received a copy of the draft PEIS. Anyone who had then read
the draft PEIS would have learned the Army intended to
transform all its forces “in place.” Someone reading the draft
PEIS would have seen something else: the 2nd Brigade in
Hawaii had been tentatively selected to participate in the
Interim Phase of the transformation, which meant it would
transform itself earlier than the other 60-odd Army brigades.
After an agency makes an EIS available, the Environmental
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17493
Protection Agency publishes a Notice of Availability that
begins a period during which the agency must accept com-
ments from the public regarding the EIS. 40 C.F.R. § 1506.10.
Here, plaintiffs had at least 45 days during which they could
make their comments or complaints, or voice their “con-
cerns,” about the 2nd Brigade’s transformation in Hawaii as
opposed to other locations, which plaintiffs imagined to be
reasonable alternative locations. If plaintiffs wanted to argue
that the Army had not given sufficient consideration to the
relocation of units during transformation, they were told by
the notices where and when they could challenge the Army’s
judgment that the most rapid transformation possible, while
maintaining combat-readiness, requires the transformation
and its training “in place,” i.e., at each brigade’s home base.
The Administrative Procedure Act requires plaintiffs to
exhaust remedies before bringing suit in federal court. 5
U.S.C. § 704. “The purpose of the exhaustion doctrine is to
allow the administrative agency in question to exercise its
expertise over the subject matter and to permit the agency an
opportunity to correct any mistakes that may have occurred
during the proceeding, thus avoiding unnecessary or prema-
ture judicial intervention into the administrative process.”
Daly-Murphy v. Winston, 820 F.2d 1470, 1476 (9th Cir. 1987)
(internal quotation marks omitted) (district court did not abuse
its discretion in requiring Veterans Administration (VA) hos-
pital doctor to raise wrongful suspension claims through the
VA’s prescribed peer review and other administrative proce-
dures because procedures were not inadequate, inefficacious,
futile, harmful, or void, and injury was not irreparable
because suspension was with pay); see also McCarthy v.
Madigan, 503 U.S. 140, 145 (1992) (“[T]he exhaustion doc-
trine recognizes the notion, grounded in deference to Con-
gress’ delegation of authority to coordinate branches of
Government, that agencies, not the courts, ought to have pri-
mary responsibility for the programs that Congress has
charged them to administer. . . . The exhaustion doctrine also
acknowledges the commonsense notion of dispute resolution
17494 ILIO‘ULAOKALANI COALITION v. RUMSFELD
that an agency ought to have an opportunity to correct its own
mistakes with respect to the programs it administers before it
is haled into federal court.”); Ruviwat v. Smith, 701 F.2d 844,
845 (9th Cir. 1983) (“[T]he requirement of exhaustion of rem-
edies will aid judicial review by allowing the appropriate
development of a factual record in an expert forum; conserve
the court’s time because of the possibility that the relief
applied for may be granted at the administrative level; and
allow the administrative agency an opportunity to correct
errors occurring in the course of administrative proceed-
ings.”); cf. I.N.S. v. Orlando Ventura, 537 U.S. 12, 17 (2002)
(“The agency can bring its expertise to bear upon the matter;
it can evaluate the evidence; it can make an initial determina-
tion; and, in doing so, it can, through informed discussion and
analysis, help a court later determine whether its decision
exceeds the leeway that the law provides.”).
The Supreme Court held in Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, 435 U.S.
519 (1978), that the exhaustion requirement applies to claims
under NEPA. There, a group called Saginaw commented on
a draft EIS written by the Atomic Energy Commission (AEC)
for construction of two nuclear power plants, raising 119
environmental contentions, seventeen of which the D.C. Cir-
cuit interpreted as assertions the EIS was fatally defective for
failure to examine “energy conservation” as an alternative to
a nuclear power plant. Id. at 531-32; Aeschliman v. U.S.
Nuclear Regulatory Comm’n, 547 F.2d 622, 625 (D.C. Cir.
1976). The AEC revised the EIS and conducted further hear-
ings at which Saginaw declined to participate. Vermont Yan-
kee, 435 U.S. at 532. The AEC’s Licensing Board granted a
permit for construction of the plants and its Appeal Board
affirmed. Id. at 533. After the CEQ promulgated new regula-
tions requiring EISs to consider “energy conservation” alter-
natives, Saginaw moved to have the AEC clarify its ruling
and reopen proceedings on the power plants. Id. The Commis-
sion declined, noting it had been willing to take evidence on
Saginaw’s contentions but that Saginaw had failed to present
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17495
any and had shown “total disregard of even those minimal
procedural formalities necessary to give the Board some idea
of exactly what was at issue.” Id. at 533-34. The Commission
noted that it had a responsibility to conform to the CEQ’s new
regulations, but that “the Board must have some workable
procedural rules” and that “intervenors also have their respon-
sibilities. They must state clear and reasonably specific
energy conservation contentions in a timely fashion. Beyond
that, they have a burden of coming forward with some affir-
mative showing if they wish to have these novel contentions
explored further.” Id. at 534. Saginaw then challenged the
grant of the construction permit by filing a lawsuit in the D.C.
Circuit, and the court remanded for further proceedings, hold-
ing that because Saginaw had identified “in a general way”
the measures it wanted considered, the agency should not
have rejected energy conservation alternatives without inquiry
or explanation, and doing so was arbitrary and capricious.
Aeschliman, 547 F.2d at 629-30. The court also criticized the
AEC’s practice of refusing to entertain comments that did not
meet a “threshold test” of substantiality as imposing a “heavy
substantive burden[ ]” on intervenors. Id. at 626-27 & n.11.
The Supreme Court reversed. Vermont Yankee, 435 U.S. at
558. The Court first noted that “energy conservation” was
then a concept of recent vintage, and given its open-ended and
evolving nature, the Licensing Board’s decision to grant the
construction permit was within the proper bounds of its statu-
tory authority. Id. at 552-53. The Court then approved the
AEC’s “threshold test,” and held that while the agency must
comply with NEPA, “it is still incumbent upon intervenors
who wish to participate to structure their participation so that
it is meaningful, so that it alerts the agency to the intervenors’
position and contentions.” Id. at 553. The Court reasoned that
“administrative proceedings should not be a game or a forum
to engage in unjustified obstructionism” and that “[c]omments
must be significant enough to step over a threshold require-
ment of materiality before any lack of agency response or
consideration becomes of concern.” Id. at 553-54 (internal
17496 ILIO‘ULAOKALANI COALITION v. RUMSFELD
quotation mark omitted). The Court held that to characterize
the AEC’s actions as arbitrary and capricious would “deprive
those words of any meaning.” Id. at 554. It emphasized the
limited role of reviewing courts that it opined the D.C. Circuit
had “forgotten”:
[T]he role of a court in reviewing the sufficiency of
an agency’s consideration of environmental factors
is a limited one, limited both by the time at which
the decision was made and by the statute mandating
review. Neither the statute nor its legislative history
contemplates that a court should substitute its judg-
ment for that of the agency as to the environmental
consequences of its actions.
Id. at 555 (internal quotation mark omitted).
Just as Vermont Yankee’s intervenors should have raised
objections material enough to suggest real issues of “energy
conservation” as an alternative to the proposed nuclear plants,
plaintiffs here should have shown real world alternatives to
the Army’s twin requirements of maximum speed in transfor-
mation while maintaining combat-readiness, or that the appli-
cation of these twin requirements, which resulted in the
decision to transform “in place” for all brigades, was “arbi-
trary and capricious.” Powell, 395 F.3d 1019, 1026 n.5. This
plaintiffs have never done. Nor did they raise issues regarding
suitable alternate locations in the event that attacks on the pur-
pose and need, as expressed in the twin requirements, were
successful.
In Department of Transportation v. Public Citizen, 541
U.S. 752 (2004), the Supreme Court unanimously reaffirmed
its view that, under NEPA, would-be intervenors must partici-
pate meaningfully in agency proceedings or waive their chal-
lenges to agency decisionmaking. There, the Federal Motor
Carrier Safety Administration (FMCSA) had promulgated
rules allowing Mexican trucks to operate in the United States
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17497
and issued an Environmental Assessment (EA) that stated the
proposed rules would have no significant impact on the envi-
ronment; the agency therefore did not prepare a full EIS. Id.
at 762. Unions and environmental groups made comments in
response to the EA but had not suggested in those comments
that the agency consider claimed environmentally superior
alternatives to the proposed rules. Id. at 764-65. The agency
issued the rules, and the unions and groups filed petitions with
this court arguing the rules were in violation of NEPA. Id. at
762. This court remanded for preparation of a full EIS on the
ground that the agency had failed to give adequate consider-
ation to the overall environmental impact of its rules allowing
the trucks to operate. Id. at 762-63. Reversing, the Supreme
Court held that the unions’ and groups’ argument that the
agency had to consider alternatives to its proposed rules were
challenges not properly before the court. Id. at 764. The Court
noted the unions and groups had neither “identified in their
comments any rulemaking alternatives” other than those eval-
uated by the FMCSA in its environmental assessment (EA),
nor “urged FMCSA to consider alternatives.” Id. The Court
held the unions’ and groups’ claims to be waived:
Because respondents did not raise these particular
objections to the EA, FMCSA was not given the
opportunity to examine any proposed alternatives to
determine if they were reasonably available. Respon-
dents have therefore forfeited any objection to the
EA on the ground that it failed adequately to discuss
potential alternatives to the proposed action.
Id.
Just as the unions and environmental groups failed to sug-
gest cleaner air alternatives to the FMCSA, plaintiffs have
failed to suggest lesser environmental impacts could result
from a consideration of alternate, rather than “in place,” sites
for troop transformation.
17498 ILIO‘ULAOKALANI COALITION v. RUMSFELD
With respect, the majority’s attempts to distinguish Public
Citizen and Vermont Yankee fall short and are contrary to the
well-established purpose of the requirement of exhaustion of
remedies. The majority argues that those cases do not control
because there the plaintiff organization submitted inadequate
comments or failed to follow up on submitted comments. The
majority would limit Vermont Yankee to those cases in which
a plaintiff group submits some comments, yet not apply its
rule when a plaintiff group furnishes no comments at all. This
makes no sense at all. It would provide an incentive for chal-
lenging groups to “hide the ball” in agency proceedings, lest
some tepid and ambiguous comments be held to fall within
Vermont Yankee’s bar. If aspiring intervenors fear some par-
ticipation in agency proceedings will bar them from asserting
additional comments in future judicial proceedings, such
groups might prefer simply to lie in the weeds, eschew agency
proceedings, and later take their suggestions directly to the
federal courts, as authorized by today’s majority decision.
“[E]xhaustion principles apply with special force when fre-
quent and deliberate flouting of administrative processes
could weaken an agency’s effectiveness by encouraging disre-
gard of its procedures.” McCarthy v. Madigan, 503 U.S. 140,
145 (1992) (internal quotation marks omitted). If cryptic and
obscure comments cause administrative proceedings to
devolve into “a game or a forum to engage in unjustified
obstructionism,” Vermont Yankee, 435 U.S. at 553, plaintiffs’
skipping the administrative process altogether threatens to
turn agency proceedings into something resembling a mean-
ingless charade. See Public Citizen, 541 U.S. at 764 (holding
the purpose of the Vermont Yankee rule is to “allow the
agency to give the issue meaningful consideration”). Here,
had the plaintiff groups properly presented the claims they
now make, the Army could have exercised its responsibility
and authority to research and analyze the plaintiffs’ claims.6
6
Conceivably, it could have shown the plaintiffs their only viable claim
was to attack the Army’s finding that because of its purpose and need,
transformation “in place” was required.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17499
This procedure would have either mooted the present dispute
or provided a stronger record on which the federal courts
could decide the issue, rather than having to remand for a sup-
plemental EIS, as the majority does. Interposing federal
judges as referees in the administrative process carries signifi-
cant risks of extending judicial influence where it is not war-
ranted. “While agencies are not directly accountable to the
people, the Chief Executive is, and it is entirely appropriate
for this political branch of the Government to make . . . policy
choices.” Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 865 (1984).
Despite the majority’s insistence to the contrary, Kunak-
nana v. Clark, 742 F.2d 1145 (9th Cir. 1984), does not require
a different result here. There, two Eskimos who led a subsis-
tence lifestyle in the North Slope region of Alaska sued under
the Alaska National Interest Lands Conservation Act
(ANILCA) to challenge oil and gas leases granted by the
Bureau of Land Management. Id. at 1147. The court affirmed
the district court’s denial of the plaintiffs’ claims on the
ground the agency had complied with the procedural require-
ments of ANILCA. Before doing so, however, the court held
the Eskimos’ claims were properly before the court. The court
observed that “[t]he purpose of the ANILCA was to protect
those North Slope natives who, like appellants, lead a subsis-
tence lifestyle.” Id. at 1148; see also 16 U.S.C. § 3101(c)
(Congressional statement of purpose of ANILCA). The court
excused the Eskimos’ failure to participate meaningfully in
the administrative process and entertained the merits of the
Eskimos’ claims. Kunaknana, 742 F.2d at 1148. The majority
is correct that the court refused to adopt a “broad rule which
would require participation in agency proceedings as a condi-
tion precedent to seeking judicial review of an agency deci-
sion.” Id. Kunaknana, however, is distinguishable as a non-
NEPA case involving another statute the purpose of which
was to protect a specifically named class of Eskimos who
sued under that statute. It is not authority for the interpretation
17500 ILIO‘ULAOKALANI COALITION v. RUMSFELD
of a statute (NEPA) not involved in the case and which targets
no specific class of protected plaintiffs.
Kunaknana is a case involving “exceptional circumstances”
within the meaning of Havasupai Tribe v. Robertson, 943
F.2d 32 (9th Cir. 1991) (per curiam). In Havasupai Tribe, the
Forest Service approved a plan of operations for a uranium
mine and plaintiffs sued, claiming the agency’s EIS contained
inadequate consideration of the impact on groundwater of a
planned mine. Id. at 33. The district court affirmed the Forest
Service, holding the agency had adequately considered the
issues the plaintiffs were raising. Id. at 34. This court
affirmed, and held that the district court could have refused to
reach the merits of the plaintiffs’ claim the EIS was inade-
quate due to the plaintiffs’ failure to raise this challenge
before the agency. Id. We held that “[a]bsent exceptional cir-
cumstances, such belatedly raised issues may not form a basis
for reversal of an agency decision.” Id. at 34 (emphasis
added). Although the majority is correct that in Havasupai
Tribe, the plaintiffs’ comments were solicited, see Maj. Op.
at 17462-63, nothing in Havasupai Tribe equates exceptional
circumstances with the lack of being personally solicited. See
id. Here, the concededly adequate notices did solicit
plaintiffs’—and everybody else’s—input. Seen in this light,
Kunaknana is a case that fits into Havasupai Tribe’s excep-
tion for cases that present “exceptional circumstances.” In
Kunaknana, the exceptional circumstances that justified the
court’s carving out an exception to the Vermont Yankee rule
was to effectuate Congress’s special protection for Eskimos in
ANILCA, a reason that is totally inapplicable here, even by
analogy. See Kunaknana, 742 F.2d at 1151. Plaintiffs have
not identified any exceptional circumstances warranting their
excusal from Vermont Yankee’s requirement, a requirement
recently affirmed by the Court in Public Citizen.
Northwest Environmental Defense Center v. Bonneville
Power Administration, 117 F.3d 1520 (9th Cir. 1997), does
not weaken this conclusion. First, as the majority acknowl-
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17501
edges, that case’s discussion of waiver involved the North-
west Power Act, not NEPA.7 See Maj. Op. at 17464. Second,
even if Bonneville Power controlled, the plaintiffs’ failure to
participate should not be excused. The plaintiffs’ claim that
the Army should have considered relocation of the 2nd Bri-
gade as a reasonable alternative in its EISs is a “specific fac-
tual contention regarding the substantive content of an EIS,”
therefore requiring timely participation, and not a “procedural
violation” under which a plaintiff’s failure to participate in the
administrative process might be excused. Bonneville Power,
117 F.3d at 1535. After all, what is more a “specific factual
contention” than whether something is “reasonable”? Juries
are called upon daily to determine whether defendants acted
with “reasonable care.” Plaintiffs had notice that the Army
had decided to transform “in place” and that such determina-
tion included the 2nd Brigade. Whether the purpose and need
of the project made consideration of alternate locations “rea-
sonable” was a preliminary factual issue that had to be deter-
mined before the procedural duty to consider the alternate
sites was triggered. The plaintiffs had to alert the Army that
the Army’s determination that no alternate locations for trans-
formation were “reasonable” in view of the Army’s purpose
and need was a determination that had to be examined. As I
noted at the beginning of this dissent, even now the plaintiffs
do not make that claim, the only claim that is conceivably via-
ble: that the purpose and need of the Army transformation
(the “twin requirements” mentioned supra) are “arbitrary and
capricious” or that the Army’s decision that such purpose and
need require “all units” to transform “in place” is “arbitrary
and capricious.”
7
Far from stating NEPA and the Northwest Power Act were “analo-
gous” statutes, the Bonneville Power court noted that “[i]n contrast” to the
NEPA cases Vermont Yankee and Havasupai Tribe, the facts in Bonneville
Power entailed “an alleged procedural violation of a statute that governs
the public comment process,” namely the Northwest Power Act. Id. at
1535.
17502 ILIO‘ULAOKALANI COALITION v. RUMSFELD
B
The opinion further holds, I think in error, that the Army’s
EIS contained flaws that were “so obvious that there is no
need for a commentator to point them out specifically in order
to preserve its ability to challenge a proposed action.” See
Maj. Op. at 17464 (quoting Public Citizen, 541 U.S. at 765).
The Supreme Court penned this language, clearly dicta, in
Public Citizen. In doing so, it found that this “so obvious”
exception did not apply on the facts of that case. Id. at 765.
It should not apply here, either.
The majority cites dissidence among the Army’s staff as
evidence of the proposition that errors in the EIS were “so
obvious” that plaintiffs were not required to raise objections
during agency proceedings. If anything, internal dissidence
shows there was healthy debate and discussion within the
Army over whether alternatives such as relocation of units
undergoing transformation could be considered reasonable in
view of the purposes and needs of the program which—we
must remember always, and from the first notice of the draft
PEIS—required transformation “in place” of each and all of
the Army’s brigades. In any event, dissidence among agency
members does not fit the mold of Public Citizen’s exception
for obvious errors.8 Rather, here, as in Public Citizen, plain-
tiffs “fail to identify any evidence” that shows relocation of
the 2nd Brigade for either temporary training or permanent
transformation to any particular location would advance envi-
ronmental goals. Id.; see also Angoon, 803 F.2d at 1022 (9th
8
I find puzzling the majority’s reliance on Friends of Clearwater v.
Dombeck, 222 F.3d 552 (9th Cir. 2000), to interpret Public Citizen. That
case dealt with whether an EIS contained flaws that rendered the EIS inad-
equate, not whether those flaws were also so obvious that, in addition to
rendering the EIS inadequate, the flaws dispensed with the requirement
that the commentator identify the flaws during agency proceedings to pre-
serve the flaws as error in later court proceedings. See id. at 558-59. The
issue of waiver was never in that case because the public commentator had
raised the objection or “concern” at the proper time. See id. at 555.
 ILIO‘ULAOKALANI COALITION v. RUMSFELD 17503
Cir. 1986) (where plaintiff organization had not offered a
“specific, detailed counterproposal” demonstrating environ-
mental benefits, the consequences of its proposal were merely
“remote and speculative”). In Public Citizen, the Court held
that “removing older, more polluting trucks through more
effective enforcement of motor carrier safety standards”
would not obviously have a positive environmental impact
because “respondents fail to identify any evidence that shows
that any effect from these possible actions would be signifi-
cant, or even noticeable, for air-quality purposes.” Id. at 765.
Likewise, plaintiffs here fail to identify any evidence that
shows relocation of the 2nd Brigade would have significant,
or even noticeable, environmental benefits. In that sense, I
agree with the majority that “nothing in the record distin-
guishes Hawaii from Alaska or Washington.” Maj. Op. at
17479.9 The record, including the SEIS, details the environ-
mental impacts that transformation would have on Hawaii.
Yet the record is silent regarding alternative transformation
sites that should have been obvious to the Army. It is not the
Army’s obligation to guess what stationing locations plaintiff
organizations would prefer to Hawaii; it was the organiza-
tions’ responsibility to suggest relocation and alternative sit-
ing locations during the administrative process and clearly to
state why those alternate locations decreased any claimed
environmental impacts. See Public Citizen, 541 U.S. at 764-
65; see also Angoon, 803 F.2d at 1022. It is the Army’s job
to evaluate reasonable alternatives within the stated purpose
and need, but as appears in the next Part, relocation of the 2nd
Brigade was not a reasonable alternative the Army had to
evaluate. But even if relocation were a “reasonable alterna-
tive,” it is not “so obvious” as to exempt it from being raised
at the administrative level so properly to exhaust what is now
plaintiffs’ claim.
9
But see infra pp. 17504-06 for rejection of this comparison when it
used geographical locations.
17504 ILIO‘ULAOKALANI COALITION v. RUMSFELD
III
The Army also met its obligation in the SEIS to consider
reasonable alternatives to the proposed action of transforming
the 2nd Brigade in Hawaii. The Army’s SEIS states its pur-
pose as: “to assist in bringing the Army’s Interim Force to
operational capability and to provide realistic field training in
Hawai‘i.” Final Site-Specific Environmental Impact State-
ment, Transformation of the 2nd Brigade, 25th Infantry Divi-
sion (Light) to a Stryker Brigade Combat Team in Hawaii
(May 2004) (“Final SEIS”), at 1-4, AR 0051275. The need is
stated as: “to provide the nation with capabilities that meet
current and evolving national defense requirements.” Id. The
Army’s statement of purpose and need is reasonable. Under
this purpose and need, the SEIS analyzed a number of alterna-
tives to full transformation in Hawaii, which alternatives
would have had substantially similar environmental impacts
to relocation of the 2nd Brigade, as plaintiffs urge should
have been considered. These alternatives include training the
2nd Brigade on the mainland, and a no-action alternative,
under which the 2nd Brigade would not be transformed into
a Stryker brigade.
A
“Courts have afforded agencies considerable discretion to
define the purpose and need of a project.” Westlands Water
Dist., 376 F.3d at 866 (internal quotation marks omitted). The
SEIS states its purpose is to assist in making the Interim Force
operational and to provide realistic field training in Hawaii.
These purposes follow directly and respectively from the
PEIS’s lawful decisions that the 2nd Brigade would transform
as part of the Interim Force10 and that transformation of bri-
10
To the extent plaintiffs argue the decision to transform the 2nd Bri-
gade as part of the Interim Force, rather than later, lacked sufficient analy-
sis of reasonable alternatives, I disagree. All brigades will be transformed,
and some brigade has to be in the Interim Force, just as two brigades were
in the Initial Phase. Nothing in the record shows the exercises of Stryker
vehicles or other transformation activities will be different in different
phases.
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17505
gades would be “in place.” The SEIS’s statement of need adds
that the 2nd Brigade was chosen because the Pacific Rim is
a critical area of interest for the United States, because Hawaii
provides terrain and conditions most likely to be encountered
by troops in the Pacific Rim, and because a team stationed in
Hawaii may readily be deployed from airbases and seaports
of suitable size. I find nothing unreasonable in the SEIS’s
statement of purpose and need.11
The majority quarrels with the SEIS’s statement of reasons
why Hawaii was selected for transformation, see Maj. Op. at
17478-81, but we should defer to the Army’s judgment in
matters such as deployment and training terrain and condi-
tions, which are fact-bound and technical matters and, there-
fore, within the Army’s discretion. See Marsh v. Oregon
Natural Res. Council, 490 U.S. 360, 377 (1989) (agency is
entitled to deference when a dispute centers on fact-bound
matters within the agency’s expertise). Moreover, the majori-
ty’s contentions are unpersuasive. The majority rejects the
SEIS’s statement that maintaining a presence in the Pacific
Rim justified stationing a Stryker Brigade Combat Team
(SBCT) in Hawaii, by astonishingly concluding “[n]othing in
the record distinguishes Hawaii from Alaska or Washington.”
Maj. Op. at 17479. In fact, the record shows that deployment
times from Hawaii to areas in South Asia are shorter than
deployment times from Washington. U.S. Army Headquar-
ters, Stryker Brigade Combat Team Primer (Aug. 12, 2003)
at 5, AR 0006213. Additionally, deployment times from
Hawaii to the South Pacific are shorter than deployment times
from Washington and, by a small margin, Alaska as well. Id.
The majority also contends the SEIS does not support its own
statement of need because the Kawailoa Training Area
11
Nor, as I explain below, do I agree with the majority that the decision
to transform in Hawaii was settled prior to creation of the SEIS. Maj. Op.
at 17472. The SEIS considered a range of alternatives, including a no-
action alternative that would have abandoned the plan to transform the 2nd
Brigade in Hawaii.
17506 ILIO‘ULAOKALANI COALITION v. RUMSFELD
(KLOA) on Oahu cannot support Stryker vehicles except on
Drum Road. This argument is easily dispatched under our def-
erential standard of review, for there is nothing unreasonable
about the Army wanting to have Stryker vehicle exercises on
Drum Road coordinated with troop exercises in the nearby
mountainous jungle setting in the KLOA. An agency’s deci-
sions cannot be nullified under NEPA “simply because the
court is unhappy with the result reached.” Vermont Yankee,
435 U.S. at 558.
B
The SEIS explored the possibility of maneuver live-fire and
nonlive-fire training on the continental U.S. instead of
Hawaii, which casts significant doubt on the plaintiffs’ claim
that the Army separately needed to consider relocation of the
2nd Brigade. An agency is not required to undertake a “sepa-
rate analysis of alternatives which are not significantly distin-
guishable from alternatives actually considered, or which
have substantially similar consequences.” Westlands Water
Dist., 376 F.3d at 868 (citing N. Plains Res. Council v. Lujan,
874 F.2d 661, 666 (9th Cir. 1989) (holding that, because an
exchange of fee coal interests had substantially similar conse-
quences to coal leasing, NEPA did not require separate analy-
sis of the exchange)). Here, the crucial factor is that the
environmental impacts of relocating the 2nd Brigade would
have been substantially similar to the mainland training alter-
native and the no-action alternative. The mainland training
alternative would have provided for the 2nd Brigade and its
weapons and materiel to be transported to one of the three
other SBCT sites, located in Alaska, Washington, and Louisi-
ana, for training. Under this option, the Army would not need
to acquire a 23,000 acre plot of land and build battle area
complexes and other facilities in Hawaii. The record is clear
that moving live-fire training to the mainland and not engag-
ing in construction would lessen the “most significant” envi-
ronmental impacts on Hawaii of transformation.12 Final SEIS
12
This is not to say that mainland training or even relocation would have
environmental benefits. As developed supra in Part IIB of this dissent, the
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17507
at 4-69-4-72, AR 0051516-0051519. This option was rejected
as unfeasible and impractical due to the cost and inefficiency
of moving the soldiers and equipment to and from Hawaii,
and the strain it would place on the mainland sites. Id. at 2-52,
AR 0051337. NEPA does not mandate any substantive out-
come in particular. See Powell, 395 F.3d at 1026-27.
Although ultimately unnecessary, because of its determination
to transform all units “in place,” the Army’s consideration of
training outside of Hawaii shows it evaluated an option with
substantially similar consequences as full relocation.
The Army could have decided not to transform the 2nd Bri-
gade in Hawaii by selecting the no-action alternative, which
also would have had substantially similar environmental con-
sequences as full relocation. The majority is correct that the
SEIS considered the no-action alternative, but it is incorrect
that this alternative would have “involved transformation of
the 2nd Brigade in Hawaii on Oahu.” Maj. Op. at 17469.
Selection of the no-action alternative would have caused the
2nd Brigade not to be transformed into a Stryker brigade. The
SEIS stated the no-action alternative would not meet the pur-
pose and need for transforming the 2nd Brigade, and in the
SEIS Record of Decision, the Army determined that moving
forward with transformation in Hawaii “reflect[ed] a proper
balance among competing factors, most notably statutory mis-
sion imperatives, environmental impacts, technical consider-
ations, and all practicable means that will avoid or minimize
environmental harm.” Record of Decision, Transformation of
the 2nd Brigade, 25th Infantry Division (Light) to a Stryker
Brigade Combat Team in Hawaii (July 2004), at 1, AR
0048483. This was entirely lawful, and the fact the SEIS
stated its purpose was to provide realistic field training in
Hawaii does not change this conclusion. We have held before
plaintiffs fail to identify evidence showing that relocation or selection of
a different brigade for transformation would have obvious environmental
benefits.
17508 ILIO‘ULAOKALANI COALITION v. RUMSFELD
that an agency “[does] not act unreasonably in rejecting [a]
no-action alternative on the ground that it would not meet the
purpose and need of the proposed project.” Morrison, 153
F.3d at 1067. “[W]hen the purpose [of a project] is to accom-
plish one thing, it makes no sense to consider the alternative
ways by which another thing might be achieved.” Id. (quoting
Angoon, 803 F.2d at 1021). Under the no-action alternative,
the Army would continue to train in Hawaii as it currently
does, and the resulting impacts would be “less than signifi-
cant” because the brigade would not transform into a Stryker
brigade. Because this option had substantially similar environ-
mental consequences as full relocation, the Army did not also
separately have to consider relocation of the 2nd Brigade.13
Complete restationing of the 2nd Brigade out of Hawaii
would, of course, have had consequences that none of the
options discussed heretofore would, namely, the 2nd Brigade
would not continue to operate in Hawaii, either as an SBCT
or otherwise. To the extent relocation of the 2nd Brigade is
urged as a reasonable alternative on this basis, it is completely
outside the scope of Army transformation, and the Army did
not have to consider it. See Westlands Water Dist., 376 F.3d
at 866; see also id. at 871 (“[I]t would turn NEPA on its head
to interpret the statute to require that [an agency] conduct in-
depth analyses of . . . alternatives that are inconsistent with
the [agency’s] policy objectives.” (alterations in original)
(quoting Kootenai Tribe v. Veneman, 313 F.3d 1094, 1122
(9th Cir. 2002))).14
13
The SEIS also explored transformation of a different brigade at
another location—yet another option with substantially similar conse-
quences as full relocation. The Army determined this was not a viable
alternative: “[B]ecause the Pacific Rim is a critical area of interest for the
United States,” stationing an SBCT in Hawaii “allows the President to rap-
idly respond to events in an area of increasing importance to national
security.” Final SEIS at 2-47, AR 0051332.
14
I am also puzzled as to why the majority orders the preparation of a
supplemental EIS. As this case is an appeal from a grant of summary judg-
ILIO‘ULAOKALANI COALITION v. RUMSFELD 17509
The Army’s consideration of these alternatives establishes
that the Army looked at reasonable alternatives to transforma-
tion in Hawaii, given the conclusion that the Army could
determine that transformation of all units would be “in place.”
Once the constraint15 of “in place” transformation was decided
upon—quite properly—in the PEIS, the SEIS could consider
as its only alternatives not transforming in Hawaii at all, or
taking various measures to mitigate the impact of transforma-
tion, such as a reduced land usage or through conducting
training elsewhere. The SEIS did both. Not transforming the
2nd Brigade was rejected in favor of transformation, which
the Army decided better balanced environmental impacts with
mission imperatives and the need to maintain the ability to
respond quickly to events in the Pacific Rim. Mitigation
through mainland training would have meant less environ-
mental impact to Hawaii, but the plan was rejected as unfeasi-
ble and impractical due to the significant transportation
requirements entailed. NEPA requires no more. See Vermont
Yankee, 435 U.S. at 558 (“NEPA does set forth significant
substantive goals for the Nation, but its mandate to the agen-
cies is essentially procedural.”).
* * *
ment, the proper remedy would be to reverse the grant of summary judg-
ment and remand to the district court. Additionally, if the majority mean
to reverse the denial of the plaintiffs’ motion for summary judgment, it
should say so and remand for entry of judgment in plaintiffs’ favor, per-
manently enjoining the project. The Army can always commence a new
Notice-PEIS-SEIS proceeding rather than take its chances on the truncated
proceeding devised by the remand.
15
A constraint quite accurately recognized by an Army attorney and
indeed felicitously reproduced throughout the Majority Opinion. See Maj.
Op. at pp. 17460, 17473-74 n.5, and 17476 (noting the Army’s purpose
and need statements were “crafted so tightly that we may be restricting
ourselves”). “Restricting ourselves” from what? From considering alter-
nate locations for transformation because of the “in place” determination,
of course.
17510 ILIO‘ULAOKALANI COALITION v. RUMSFELD
The majority opinion places the Army in an awkward posi-
tion as it aims to modernize all its units. As future brigades
within the Ninth Circuit’s jurisdiction are directed by Army
Headquarters to transform to SBCTs, must the Army analyze
relocation of each brigade for a nationwide project that was
deemed from the start to entail only “in place” transforma-
tion? If so, on what legal basis? The majority opinion does not
supply an answer to these important questions. Because the
Army’s decision to transform units “in place” was not arbi-
trary and capricious, because the plaintiffs waived their chal-
lenges to the Army’s SEIS, and because the Army’s SEIS
evaluated alternatives to full transformation in Hawaii, I
would affirm the judgment of the district court.