Judge rejects suit to halt dock addition at Kitsap Bangor base
By Kyung M. Song | The Seattle Times | Published: January 10, 2014
WASHINGTON — A federal judge in Tacoma has dismissed a lawsuit seeking to halt construction of a nuclear-missile handling wharf at Naval Base Kitsap Bangor, clearing the way for the contested $650 million Pentagon project to proceed.
The ruling Wednesday by U.S. District Court Judge Ronald Leighton emphatically rejected every major argument by a group of anti-nuclear activists, who contended the Navy withheld required public information and failed to consider alternatives to building a new munitions wharf.
Leighton’s decision for summary judgment for the Navy surprised the plaintiffs, who had accused the Navy of misleading the public about the explosives dangers posed by the wharf. The naval base on Hood Canal is the West Coast homeport for Trident nuclear submarines, which carry nuclear missiles.
Leighton‘s opinion, however, downplayed the Navy’s failure to disclose that a Pentagon explosives-safety board had concerns about the proximity of the new wharf to an existing Trident missile-handling wharf — information it released only after Poulsbo-based Ground Zero and Washington Physicians for Social Responsibility filed suit in June 2012.
Leighton said any information the Navy kept from the public during its environmental-impact-review process was justifiably exempt, and that the plaintiffs were seeking “release (of) information detrimental to national security.”
The Navy is upgrading the Trident II D5 missiles to extend their service. The existing 1970s-era wharf needs repairs and other work and is available only 185 to 200 days a year, half the 400 days the Navy says it needs to upgrade the missiles.
Anti-nuclear activists have opposed the second wharf from its inception as a costly Cold War relic in a shrinking nuclear world. Under the National Environmental Policy Act (NEPA), public agencies are required to inform the public of a project’s environmental consequences.
In his opinion, Leighton over and again deferred to the Navy’s position that a second wharf is necessary, that it has adequately analyzed — although not disclosed — the potential explosives hazards and that it withheld only information that was exempt or classified.
The plaintiffs seek to “use NEPA to second guess the Navy’s missile-maintenance program,” Leighton wrote.
Leighton also chastised the plaintiffs for digging too deep into “the decision-making rabbit hole” in its quest for information from the Navy.
For instance, Ground Zero argued the Pentagon failed to consider alternatives to building a second wharf, which combined with the refurbished existing wharf eventually will give the Navy more capacity than it needs.
One option it suggested was to relocate some of the submarines to Kings Bay, Ga., home of the Trident fleet in the Atlantic.
“The Court has little trouble accepting the Navy’s decision not to shift maintenance of the Pacific fleet to a different ocean,” Leighton wrote with emphasis.
The Trident fleet at Kitsap Bangor is deployed as deterrence against North Korea and China, said Hans Kristensen, director of Nuclear Information Project with the Federation of American Scientists in Washington, D.C.
“It is hard to see why the entire fleet would be moved to the East Coast. In fact, if the Navy was forced to base its (Trident) fleet in one ocean it would almost certainly chose the Pacific,” Kristensen said.
Glen Milner, a longtime nuclear activist and the force behind the lawsuit, said he was disappointed by Leighton’s ruling. Milner noted that the Navy withheld material information as exempt, only to release it later. That, Milner said, proves the Navy acted without justification.
The Department of Defense Explosives Safety Board refused to give an unconditional permit for the project. Instead, the Navy obtained what’s called a secretarial certification assuming safety risks with the second wharf on its own. That fact emerged only during litigation.
“It seems when an agency deliberately misleads the public on a major issue ... it should mean something,” said Milner, of Lake Forest Park.
To date, the Navy has not released any assessment on the likelihood of an explosion at one wharf triggering a blast at the nearby wharf.
Milner said he and the fellow plaintiffs may considering filing an appeal with the 9th Circuit Court.
Leslie Yuenger, a Navy spokeswoman in Silverdale, Kitsap County, declined to answer any questions about the ruling.
Construction on the wharf began in September 2012. It’s scheduled to be operational by October 2016.