Wong v. Bush ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEGAN WONG; NOELLE WONG; 
KA’IULANI EDENS; JESSE BROWN-
CLAY; MARCIA SACCO; WENDY
RAEBECK; JEFF SACHER; LEA
TADDONIO; RICHARD COON; ANDREA
BROWER; FABIENNE CHRISTE; KAMEI
TRINQUE; FERN ANUENUE HOLLAND;
JAY H. TAYLOR; STAR NEWLAND;
BARBARA WIEDNER; LEE TEPLEY;
PAUL DOUBLEDAY MASSEY; DAVID
RICHARD MIRELES; MICHIAL
FREIGANG; JONATHAN JAY; CORY
(MARTHA) HARDEN, No. 07-16799
Plaintiffs-Appellants,
v.  D.C. No.
CV-07-00484-HG
GEORGE W. BUSH, Jr., President of OPINION
the United States of America and
Commander in Chief, Armed
Forces of the United States;
MICHAEL CHERTOFF, Secretary of
United States Department of
Homeland Security; THAD W.
ALLEN, Commandant United States
Coast Guard; SALLY BRICE-OHARA,
Rear Admiral United States Coast
Guard, Command of the 14th
District,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
12373
12374 WONG v. BUSH
Submitted August 12, 2008*
San Francisco, California
Filed September 5, 2008
Before: David R. Thompson and Kim McLane Wardlaw,
Circuit Judges, and Susan R. Bolton,** District Judge.
Opinion by Judge Wardlaw
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
12376 WONG v. BUSH
COUNSEL
Lanny Sinkin, Hilo, Hawaii, for the plaintiffs-appellants.
WONG v. BUSH 12377
Edward H. Kubo, Jr., United States Attorney, Lawrence L.
Tong and Derrick K. Watson, Assistant United States Attor-
neys, Honolulu, Hawaii, for the defendants-appellees.
OPINION
WARDLAW, Circuit Judge:
[1] Plaintiff-Appellants (“Appellants”), many of whom par-
ticipated in protests on August 26 and 27, 2007, oppose the
Hawaii Superferry’s (“HSF”) operation to the Nawiliwili Har-
bor in Kauai, Hawaii, alleging that it is illegal. Appellants
appeal the district court’s denial of their motion for declara-
tory relief, a temporary restraining order, a preliminary
injunction, and a permanent injunction. They contend that by
establishing a security zone to enable the HSF to dock at
Nawiliwili Harbor, the United States Coast Guard violated
their First Amendment right to free speech, the National Envi-
ronmental Policy Act (“NEPA”), and 50 U.S.C. § 191 and 33
C.F.R. § 165.30, which govern the Coast Guard’s authority to
create security zones safeguarding United States waters and
harbors. We have jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1). Because the issue presented is “capable of repe-
tition, yet evading review,” it is not moot.1 See Fed. Election
1
The Coast Guard rule establishing a security zone in the waters of
Nawiliwili Harbor, Kauai, that was challenged by Appellants was in effect
from September 1, 2007 to October 31, 2007. See Security Zone; Hawaii
Super Ferry Arrival/Departure Nawiliwili Harbor, Kauai, HI, 72 Fed. Reg.
50,877 (Sept. 5, 2007) (codified at 33 C.F.R. pt. 165). The Coast Guard
reestablished the security zone from November 1, 2007 to November 30,
2007. See Security Zone; Nawiliwili Harbor, Kauai, HI, 72 Fed. Reg.
61,518 (Oct. 31, 2007) (codified at 33 C.F.R. pt. 165). No rule establishing
a security zone is currently in effect, as the HSF suspended operations to
Kauai on August 28, 2007, and has not resumed service. A previous panel
of our court has held that, nevertheless, we have jurisdiction over this
appeal because the issue is “capable of repetition, yet evading review.”
See Wong v. Bush, No. 07-16799, Order at 1 (9th Cir. Jan. 4, 2008).
12378 WONG v. BUSH
Comm’n v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2662
(2007). We affirm.
A preliminary injunction is appropriate when a
plaintiff demonstrates either: (1) a likelihood of suc-
cess on the merits and the possibility of irreparable
injury; or (2) that serious questions going to the mer-
its were raised and the balance of hardships tips
sharply in [the plaintiff’s] favor. These two options
represent extremes on a single continuum: the less
certain the district court is of the likelihood of suc-
cess on the merits, the more plaintiffs must convince
the district court that the public interest and balance
of hardships tip in their favor.
Lands Council v. McNair, ___ F.3d ___, 2008 WL 2640001,
*3 (9th Cir. July 2, 2008) (en banc) (internal quotation marks
and citations omitted).
[2] Appellants have standing to assert their claim that the
security zone prevents them from exercising their First
Amendment right to communicate the view that the operation
of the HSF is illegal by blocking its entrance. Contrary to the
representation in the government’s brief, several Appellants
reference the First Amendment in their Complaint. Moreover,
the Complaint details the protests of August 26 and 27, 2007,
and many Appellants allege their resolve to reenter the water
in protest should the HSF return to Kauai. See LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000) (“It is suffi-
cient for standing purposes that the plaintiff intends to engage
in ‘a course of conduct arguably affected with a constitutional
interest’ and that there is a credible threat that the challenged
provision will be invoked against the plaintiff.” (quoting Bab-
bitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979))). There is little doubt, based on the affidavits in the
record, that once the HSF resumes operations, the Coast
Guard will enforce the security zone, and Appellants’ asserted
First Amendment rights will be implicated.
WONG v. BUSH 12379
[3] Although Appellants have standing to assert their claim,
we disagree that the rule establishing the security zone vio-
lates Appellants’ First Amendment rights. Some forms of
conduct are protected as symbolic speech, but the Supreme
Court has “extended First Amendment protection only to con-
duct that is inherently expressive.” Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 126 S.Ct. 1297, 1310
(2006). To the extent Appellants’ blockade in protest of the
HSF constitutes symbolic speech, the rule establishing the
security zone is a reasonable time, place, and manner restric-
tion. See Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989). The rule is content-neutral, narrowly tailored to
achieve a significant government interest, and leaves open
ample alternative channels of communication. See Menotti v.
City of Seattle, 409 F.3d 1113, 1128-43 (9th Cir. 2005). Alter-
natively, if Appellants’ blockade is conduct that does not con-
stitute symbolic speech, it is not protected by the First
Amendment. See NAACP v. Claiborne Hardware Co., 458
U.S. 886, 916 (1982) (finding certain conduct unprotected
because “[t]he First Amendment does not protect violence.”);
Cox v. Louisiana, 379 U.S. 536, 554-55 (1965) (“A group of
demonstrators could not insist upon the right to cordon off a
street, or entrance to a public or private building, and allow
no one to pass who did not agree to listen to their exhorta-
tions.”).
[4] Appellants have standing to bring their NEPA claims.
Appellants assert that the Coast Guard failed to consider sec-
ondary environmental effects before establishing the security
zone. As recreational users of Nawiliwili Harbor, Appellants
have a concrete interest in ensuring that the Coast Guard con-
ducts the necessary environmental review. See Nuclear Info.
& Res. Serv. v. NRC, 457 F.3d 941, 949-50 (9th Cir. 2006);
Citizens for Better Forestry v. USDA, 341 F.3d 961, 969, 971,
976 (9th Cir. 2003); City of Davis v. Coleman, 521 F.2d 661,
671 (9th Cir. 1975) (“The procedural injury implicit in agency
failure to prepare an [environmental impact statement]—the
creation of a risk that serious environmental impacts will be
12380 WONG v. BUSH
overlooked—is itself a sufficient ‘injury in fact’ to support
standing, provided this injury is alleged by a plaintiff having
a sufficient geographical nexus to the site of the challenged
project that he may be expected to suffer whatever environ-
mental consequences the project may have.”).
[5] Appellants contend the Coast Guard’s establishment of
the security zone violates NEPA because the Coast Guard did
not consider the “no action” alternative required by 40 C.F.R.
§ 1502.14(d). Consideration of the “no action” alternative is
a requirement in the preparation of an environmental impact
statement (“EIS”). However, where agency action falls under
a categorical exclusion, it need not comply with the require-
ments for preparation of an EIS. See 40 C.F.R. § 1508.4(2008). The Coast Guard established the security zone pursu-
ant to a categorical exclusion, see National Environmental
Policy Act: Agency Procedures for Categorical Exclusions, 59
Fed. Reg. 38,654, 38,658 (Sept. 5, 2007), an action that was
neither arbitrary nor capricious. See Alaska Ctr. for the Env’t
v. United States Forest Serv., 189 F.3d 851, 857 (9th Cir.
1999). Accordingly, the Coast Guard need not consider the
“no action” alternative when establishing the security zone.
[6] Appellants assert the Coast Guard violated NEPA by
failing to consider the secondary effects of establishing the
security zone, that is, the environmental effects created by the
HSF’s operation. The rule establishing the security zone and
the HSF are not so intertwined as to constitute one federal
action, however, and the Coast Guard was not required to
consider the secondary environmental effects created by the
HSF when it established the security zone. See Wetlands
Action Network v. United States Army Corps of Eng’rs, 222
F.3d 1105, 1116 (9th Cir. 2000) (“We have upheld an agen-
cy’s decision to limit the scope of its NEPA review to the
activities specifically authorized by the federal action where
the private and federal portions of the project could exist inde-
pendently of each other.” (citing California Trout v. Schaefer,
58 F.3d 469, 472-75 (9th Cir. 1995) (upholding agency’s
WONG v. BUSH 12381
decision to limit the scope of its NEPA review to impacts
associated with the fill of wetlands rather than considering the
impact on downstream fisheries from an entire canal proj-
ect))); Enos v. Marsh, 769 F.2d 1363, 1371-72 (9th Cir. 1985)
(upholding agency’s decision to exclude from its NEPA anal-
ysis the impact of nonfederal shore facilities for a new deep
draft harbor).
[7] The Coast Guard did not exceed the regulatory author-
ity granted to it in 50 U.S.C. § 191 and 33 C.F.R. § 165.30when it established the security zone. The President has the
authority to establish a security zone “to safeguard against
destruction, loss, or injury from sabotage or other subversive
acts, accidents, or other causes of similar nature, vessels, har-
bors, ports, and waterfront facilities in the United States.” 50
U.S.C. § 191(b); see also 33 C.F.R. § 165.30 (2008). Here,
the Coast Guard established the security zone “to better pro-
tect people, vessels, and facilities in and around Nawiliwili
Harbor in the face of non-compliant protesters who have
impeded passage of the Hawaii Super Ferry to its dock in the
harbor.” Security Zone; Hawaii Super Ferry Arrival/
Departure Nawiliwili Harbor, Kauai, HI, 72 Fed. Reg. 50,877(Sept. 5, 2007) (codified at 33 C.F.R. pt. 165).
[8] Finally, Appellants have not demonstrated that they will
be irreparably injured by the Coast Guard’s implementation of
the security zone.
AFFIRMED.