Case? Document 1 BRIGGS LAW CORPORATION [nuaz 1434.00] Cory J. Bri gs (State Bar no. 176284) . Karen L. aret (State Bar no. 239779) 99 East Street, Suite 111 Upland, CA 91786 Telephone: 909-949-71 15 Facsnnile: 909-949-7121 COAST LAW GROUP LLP Marco A. Gonzales (State Bar no. 190832) 169 Saxony Road, Suite 204 Encinitas, CA 92024 Telephone: 760-942-8505 FaCSImile: 760-942-8515 Attorne for Plaintiff San Diego Navy Broa way Complex Coalition UNITED STATES coma. '55! 0mm Filed 01/04/07 Page 1 5" .r'l I ?5 -- a vI-II-nll'k? .qw 1 Dim?w. Mam-ma amp-unwh?ywmm. SOUTHERN DISTRICT OF SAN DIEGO NAVY BROADWAY COMPLEX COALITION, Plaintiff, .4 Vs. US. DEPARTMENT OF ROBERT M. GATES, in his of?cial capacity as Score of the US. De artment of Defense; .8. DEPAR MENT OF TH DONALD C. WINTER, in his of?cial capacity as Secretawof the US. De artment of the Navy; NA AL FACI ITIES ENGINEERING W. GREG SHEAR, Naval Facilities Engineerin Command; NAVAL FACILITIES ENGINEE ING COMMAND MICHAEL A. GIORGIONE, inhis of?cial ca acity as Commander of the Naval Facilities ngineerin Command Southwest; and MANCHESTER PA IF IC GATEWAY LLC, - Defendants. . 0038 CASENO. - ief? . quu'u I AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT JR., in his of?cial capacity as Commander of the Plaintiff SAN DIEGO NAVY BROADWAY COMPLEX COALITION alleges as follows: 1 i=1; '1 p-a p?n r?t r?t WQQUI-P-WN \Doouchn-h-mm Case Documentl FiledV01/O4/O7 Page20f 11 Parties I . 1. Plaintiff SAN DIEGO NAVY BROADWAY COMPLEX COALITION is a non-pro?t, Social-advocacy organization formed and operating under the laws of the State of California. Plaintiff? 5 members reside in or near the City of San Diego, California, and have an interest in protecting the region?s air quality, minimizing and ameliorating tra?ic, ensuring informed and responsible growth, increasing the number of and protecting public parks and open spaces, and promoting other environment-related quality-of-life issues. I 2. Defendant US DEPARTMENT OF DEFENSE is an agency or instrumentality of the - United States, and its Secretary is believed to be Defendant ROBERT M. GATES. Defendant US. DEPARTMENT OF THE NAVY is an agency or instrumentality of the United States, and its Secretary is believed to be Defendant DONALD C. WINTER. Defendant NAVAL ENGINEERING FACILITIES COMMAND is an agency or instrumentality of the United States, and its Commander is believed to be Defendant W. GREG SHEAR, JR. Defendant NAVAL ENGINEERING FACILITIES COMMAND an agency or instrumentality of the United States, and its Commander is believed to be Defendant MICHAEL A. GIORGIONE. Defendant MANCHESTER PACIFIC GATEWAY is the applicant for the proposed federal action that is the subject of this proceeding or has some other cognizable interest in the action. I A 3. . Plaintiff is informed and believes and on that basis alleges that, at all times Stated in this pleading, each Defendant was the agent, servant, or employee of each other Defendant and was, in doing the things alleged herein, acting the scope of Said agency, servitude, or employment and with the full knowledge or subsequent rati?cation of his or its principals, masters, and employers. Alternatively, in doing the things alleged herein, each Defendant was acting alone and solely to further his or its own interests. Background Information A 4. The project (inciuding all associated entitlements and leases) that is the subject of this I proceeding is a certain development agreement between the City of San Diego and Defendants (other COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 2 rCase Document 1 Filed 01/04/07 Page '3 of 11 than Defendant MPG) for the Navy Broadway Complex located on roughly four city blocks along the waterfront in downtown San Diego (?Project?). 5. On or about November 22, 2006, Defendants adopted (or caused or allowed to be adopted) a ?nding that the Project will not have a signi?cant impact on the environment based solely on environmental impact statement prepared in 1990, a record of decision prepared in 1992, and an environmental assessment prepared in 2006. On or about November 29, 2006, Defendants recorded (or caused or allowed to be recorded) their written agreement to lease-the Navy Broadway Complex to a developer on a long-term basis; prior to its recording, the lease agreement had been kept secret by Defendants and the developer and not disclosed to the public despite repeated requests for disclosure. The Project?s ultimate scope, design, and intensity could not have been ascertained until November 29, 2006. - Plaintiff opposes the Project and challenges certain related actions taken by Defendants. In particular, Plaintiff seeks to invalidate Defendants? adoption of the FONSI, leaseof the Navy Broadway Complex to a developer, and related actions and approvals with respect to the Project on the grounds that Defendants have violated the National Environmental Policy Act the Administrative Procedure Act and perhaps other laws. Jurisdiction, Venue, and Exhaustion of Remedies 7. i This Court has jurisdiction over this proceeding pursuant to Sections 1331 and 1361 of Title 28 of the US Code, because this pleading alleges violations of NEPA and the APA and seeks to compel Defendants to perform duties owed to Plaintiff, its members, and other members of the public. The Court also has jurisdiction over this proceeding pursuant to Section 701 et seq. of Title 5 of the US. Code, because the pleading seeks judicial review of action taken by one or more agencies of the United States. a i 8. Venue is proper in this Court. under Section 1391(e) ?of Title 28 of the US. Code, because.(i) Defendants are either of?cers, employees, or agencies of the United States and (ii) both a substantial part of the events or omissions giving rise to this proceeding were committed in this judicial district and a substantial part of the property at issue in this proceeding is located in this judicial district. . AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE . NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 3 v?I i?n r?I ltcase Document 1 Filed 01/04/07' Page 4 of 11 9. Plaintiff has Satis?ed each and every exhaustion-of-remedies requirement that must be satis?ed in order to maintain this proceeding. Alternatively, no exhaustion-of-remedies requirement maybe applied to Plaintiff. 10. Plaintiff has no plain, speedy, adequate remedy in the ordinary course of law, since Plaintiff, its members, and other members of the public will suffer irreparable harm as a result of Defendants" violations of NEPA, the APA, and other laws. Defendants? approval of the Project also rests on the failure to satisfy a clear, present, ministerial duty to-act in accordance with those laws. Even when Defendants are permitted 'or required by law to exercise their discretion in approving projects under those laws, they remain under a clear, present, ministerial duty to exercise their discretion within the limits of and in a manner consistent with those laws. Defendants have had and Continue to have the capacity and ability to approve the Project within the limits of and in a manner consistent with those laws, but Defendants have failed and refuse to do so and have exercised their discretion beyond the limits of and in a manner that is not consistent with those laws. 11. . Plaintiff has a bene?cial right and interest in Defendants? ?il?llment of all their legal duties, as alleged in this pleading. FIRST CLAIM: Failure to Prepare Environmental Impact Report (Against All Defendants) 12. Paragraphs 1 through 11 are fully incorporated into this paragraph. . 13. (NEPA requires every federal agency to prepare an environmental impact statement for every major action signi?cantly affecting the quality of the human environment that the agency proposes to approve or carry out. In general, the EIS must address the proposed action?s environmental impact, (ii) any adverse environmental effects that cannot be avoided if the proposed action is implemented, alternatives to the proposed action, (iv) the relationship between local short- term uses of the environment and the maintenance and enhancement of long-term productivity, any irreversible and irretrievable commitments of resources that would be involved in the proposed action COMPLAINT FOR DECLARATORY AND RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 4 DO --.Case Document 1 Filed 01/04/07 Page 5 of?11 if implemented, (vi) mitigation measures for the proposed action, and (vii) cumulative impacts for the proposed action. I i 14. Defendants have not prepared an EIS for the Project. Plaintiff believes; however, that the Project is a major action proposed to be approved and carried out by at least one federal agency and has the potential to affect the quality of the human environment, including but not limited to the environment in downtown San Diego and along the waterfront. Such impacts may include, among other things, increased traffic and congestion, increased air pollution, increased water pollution, increased demand for public?safety services g. police and increased risk" from seismic hazards, increased risk from terrorist events, incompatible land uses, and further decreases in the size and number of public parks and other urban open spaces. i 15. Defendants? re?rsal to prepare an EIS for the Project was contrary to NEPA, arbitrary and capricious under the APA, a prejudicial abuse of discretion, and not supported by suf?cient evidence. I 16. Plaintiff, its members, and other members of the public have been harmed as a result of Defendants? violations hof NEPA and the APA because they have been denied the bene?ts and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the Project were not fully informed about the impacts of, mitigation measures for, and alternatives to the Project prior to the decision to approve and carry out the Project. I W: I Failure to Prepare Supplemental Environmental Impact Statement (Against All Respondents and Real Parties in- Interest) .17. Paragraphs 1 through 16 are fully incorporated into this paragraph. 18. I Under certain . circumStances, NEPA requires every federal agency to prepare a supplemental environmental impact statement is, a statement that supplements a previously prepared EIS--for every major action signi?cantly affecting the quality'of the human environment that the agency proposes to approve or carry out. In particular, an SEIS must be prepared COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 5 I 00 ?4 4} Lo) 00 U.) Case Documentl Filed 01/04/07 Page 6501511 when the'agency makes substantial changes in the proposed action that are relevant to environmental concerns or (ii) there are signi?cant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. Additionally, every federal agency must adopt procedures for introducing an SEIS into its formal administrative record (if there is one) for the proposed action and (ii) prepare, circulate, and ?le an SEIS in the same manner as a or ?nal EIS unless alternative procedures have been approved by the Council on Environmental Quality. 19. Defendants have not prepared an SEIS for the Project and opted instead to rely on the FONSI,?which was?based solely on the environmental impact statement prepared in 1990, the record of decision prepared in 1992, and the environmental assessment prepared in 2006. Plaintiff believes, however, that Defendants have made signi?cant changes to the Project relevant to environmental concerns over downtown San Diego and the waterfront. Alternatively and additionally, Plaintiff believes that there are signi?cant new circumstances or information (if not both) relevant to environmental concerns over and bearing on the Project or its impacts in downtown San Diego and along its waterfront. Such changes, circumstances, and information may include, among other things, revisions to the scope, design, and intensity of the Project; (ii) previously unforeseeable increases in traf?c and congestion, air pollution, water pollution, demand for public-safety services g. police . and risk from seismic hazards, risk from terrorist events, and incompatible land uses, as well as previously unforeseen and unforeseeable decreases in the size and number of public parks and other urban open spaces; and previously unknowable terms and conditions of the Navy Broadway Complex lease between Defendants and the developer. 20. Defendants? refusal to prepare an SEIS for the Project was contrary to NEPA, arbitrary and capricious underthe APA, a prejudicial abuse of discretion, and. not supported by suf?cient evidence. I I 21. Plaintiff, its members, and other members of the public have been harmed as. a result of Defendants? violations of NEPA and the APA because they have been denied the bene?ts and protections provided by compliance with those laws. By way of example and without limitation, Plaintiff, its members, the public, and the decision-makers who approved and are carrying out the COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 6 ICase Document 1 Filed 01/04/07 Page 7 of 11 Project were not fully informed about the impacts of, mitigation measures for, and alternatives to the Project prior to the decision to approve and carry out the Project. THIRD CLAIM: Failure to Allow Public Participation before Making Finding of No Signi?cant Impact 2 (Against All: Respondents and Real Parties in Interest) 22. Paragraphs?l through 21 are fully incorporated into this paragraph. 23. . NEPA requires every federal agency to provide the public with an opportunity to review and comment On environmental assessments and proposed ?ndings of no signi?cant impact for every major action signi?cantly a?ecting the quality of the human environment that the agency proposes to approve or carry out, so that the public has a meaningful opportunity to participate in the decision not to prepare an In particular, every agency must provide the public with notice of and solicit comments on the agency?s intent to adopt a ?nding of no signi?cant impact before making the decision not to prepare an (ii) adopt procedures to ensure that environmental information is made available to the public before decisions are made and?before actions are taken; implement procedures to make the NEPA process more useful to deCision-makers and the public; (iv) endourage'and facilitate public involvement in decisions that affect the quality of the human environment; and make diligent efforts to involve the public in preparing and implementing NEPA procedures. Defendants? own regulations for implementing NEPA ?clearly, recognize? the ?importance of public participation . .. . in preparing environmental assessments? and recommend the development of ?a plan to ensure appropriate communication with affected and interested parties.? Additionally, the Navy Commanding Of?cer ?s Guide to Environmental Compliance includes ?provid[ing] the opportunity for public comment? part of the Navy?s NEPA program. 24. Plaintiff, its members, and other members?of the public were provided with no notice of and no opportunity to comment on the environmental assessment or the FONSI for the Project. The environmental assessment and the FONSI were the product of secret, back-room dealings, with the speci?c goal of preventing the public from meaningfully participating in Defendants? decision not to COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 7 Case Documentl Filed 01/04/07 Page 80f11 prepare an SEIS for the Project and otherwise in?uencing the ultimate scope, design, and intensity of the Project. i 25. Defendants? failure to provide the public with an opportunity to review and comment I on the Project?s environmental assessment and the FONSI was contrary to NEPA, arbitrary and capricious under the APA, a prejudicial abuse of discretion, and not supported by suf?cient evidence. 26. Plaintiff, its members, and other members of the public have been harmed as a result of Defendants? violations of NEPA and the APA because they have been denied the bene?ts and protections provided by compliance with those laws. By way of example and without limitation, the public was unable to provide the decision-makers who approved and are carrying out the Project with information about the Project?s potentially signi?cant environmental impacts not identi?ed in the environmental assessment or requiring a level of analysis that can only be provided in an EIS, about mitigation measures for the Project, about alternatives to the Project, and about ways to correct or otherwise improve the limited analysis of the Project?s impacts--all with the goal of fostering better decision-making with respect to the Project. Prayer FOR ALL THESE REASONS, Plaintiff respectfully prays for the following relief against Defendants (and any and all other parties who may oppose Plaintiff in this proceeding): A. A judgment determining or declaring that Defendants failed to comply fully with NEPA and the APA as they relate to the Project and that the FONSI was illegal in at least some respect, rendering the FONSI null and void; B. . .A judgment determining or declaring that Defendants failed to comply fully with NEPA and the APA as they relate to the Project and that its approval (including all associated entitlements and leases) was illegal in at least some respect, rendering the approval null and void; C. A judgment determining or declaring that Defendants must prepare an EIS or an SEIS fully in accordance with NEPA and the APA before ?nal approval of the Project may be granted; - D. Inj unctive relief prohibiting Defendants (and any and all persons acting at the request of, in concert with, for thebene?t of, in privity with, or under one or more of them) from taking any COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND ADMINISTRATIVE PROCEDURE ACT Page 8 lall} DJ Case Document 1 Filed 01/04/07 Page 9 of 11 action on any aspect of, in furtherance of, or. otherwise based on the Project unless and until Defendants- fully comply with all applicable provisions of NEPA and the APA, as determined by the Court; B. Any and all other relief that may be authorized by NEPA or the APA but not explicitly or speci?cally requested elsewhere in this Prayer; I I F. All legal fees and other expenses incurred in connection with this proceeding, including but not limited to reasonable attorney fees as authorized by law; and I G. i .. Any and all further relief that this Court may deem appropriate. . I Respectfully submitted, A BRIGGS LAW CORPORATION 11.33 Efet COAST LAW GROUP LLP 0A. nzalz A Byz? Cory J.\Briggs . Date: January 4, 2007. Attorneys for Plaintiff San Diego Navy Broadway Complex Coalition - -COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACTAN ADMINISTRATIVE PROCEDURE ACT Page 9 '1 ff,? - (Rev. 07/89) Case Document 1 Filed 01/04/07 Page 10 of 11 ISM sheet. (SEE INSTRUCTIONS ON THE SECOND PAGE OF THIS FORM.) I PLAINTIFFS SAN DIEGO NAVY BROADWAY COMPLEX COALITINO COUNTY OF RESIDENCE OF FIRST LISTED San Diego. California PLAINTIFF (EXCEPT IN US. PLAINTIFF CASES) CIVIL COVER SHEET The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the ?ling and service of pleadings or other papers ui la mics of court. This form. approved by the Judicial Conference of the United States in September I974. is required for the use of the Clerk of Court??he 3e: DEFENDANT . I US. DEPARTMENT OF x. .. URT US EFTRICT Pom? -CLE . DIST r- 9 crorcdu COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT 91"! .. (IN US. PLAINTIFF CASES ONLYDEPUTY LAND uss?firl?snropA?ttON-OP mama 0F LAN ATTORNEYS (FIRM NAME, ADDRESS. AND TELEPHONE NUMBER) BRIGGS LAW Cory J. Briggs (State Bar no. 176284) 99 East Street, Suite 111, Upland, CA 91786 Telephone: 909-949?71 15 - ATTORNEYS (IF KNOWN) met on; 8 did ~th II. BASIS OF JURISDICTION (PLACE AN 1 IN ONE BOX ONLY) I US. Government Plaintiff 3Federal Question - . OF-PRINCIPALPABIIMLACE AN IN ONE BOX (For Cam Only) a. PT DEF lion ONE-BOX FOR 1 DEF (us Govemm? Not a pm) Citizen OfThis State 11D I Eastbr?psgs?e: or Principal Place of Business 4 D4 2U.S. Govemment Defendant 4Diversitiy (Indicate Citizenship of Parties in cum 0f Another sum D2 D2 1633?: Place or Human D5 [15 Item Citizen or Subject of a Forei Foreign Nation . Country U3 D3 D6 D6 IV. CAUSE OF ACTION (CITE THE US CIVIL STATUTE UNDER WHICH YOU JURISDICTIONAL STATUTES UNLESS DIVERSITY). ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE. DO NOT CITE Policy Act (42 USC 432]) and the Administrative Procedure Act (5 USC 55]) This is a suit to enforce the Defendants compliance with the National Environmental V. NATURE OF SUIT (PLACE AN IN ONE BOX ONLY) FORFEIWREJPENALTY CONTRACT . ronrs BANKRUPTCY omen STATUTES I10 insurance PERSONAL INJURY 6 0 Arr-lordarra 422 Appeal 28 use mi 400 Stain I20 Murine :1 no Airplane i] 362Penonn1lnjury- 620 Drug 410 Antitrust I30 Miller Act 3l5 Airplane Prodoet Liability 625 Drug Related Seizure 1 430 Bantu and Banking ldo Negotiable Instrument 520 Arrault. Libel Slander 365 Penoald Iniury . ?hm 2' uses" 820 Copyright: 450 Commercel'ICC Ratnareta. I50 Reeovery ?Overpayment 330 Federal Employen' 630 Liquor Lana sto Patent 1 460 Deportation ?Wm mm? A 368 Asbestos Personal Injury 640 RR a Truck 470 Racketeer lailurnaed and Madim 340 Main Product Liability 65? Aim m. SOCIAL SECURITY Comm Organizations I52 Recovery of Defaulted Student 545 Marine Product PERSONAL 660 Oocupetioml Safety/Health 86I HIA (13958) no Seiedive Service Wm (Em mm" 370 Other Fraud 3 862 Black Lung (923) 950 spanidcnICotrtutodldea 7 153Recovery prawn-payment :l 350 Motor Vehicle 571 Truth in Lending ?30" 863 DIWCJDIWW (405(3)) am ?Wm? ?mm 355 Motor Vehicle Product 380 Other Personal 3 7 IOFair labor Sarrtdarda Act 864 ritla ins Curtoraer Challenge l2 usc 160 Stockholders stain Wu" 120 Relations 89] Agricultural Ann :90 Other Contract :1 360 Other Pertonal Injury 385 Property Damage no Labor/Man Reporting a FEDERAL w" 1 392 stabilization Aer mm" mm 870 ram (us. Plaintiir 393 Mtatrra REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS no my um 0' WW0 Man zloLandConderrtnatlon ?l th'ms slo moanerLoborLitiprtioa an IRS-Thium 895Fteedo?m orlnrorraatiort Act 220 Foreclosures ?2 Employment 191 Empl. Ret. Inc. 26 use my 900 Appeal orPea Determination 230 Rent Learn a Nln?ming/Aocommdutim 530 General Security Act mi" 240 Tort to Land 444 Welfare 535 Death Penalty 3 950 Constitutionality of State 245 Tort Product Liability ?0 Other Civil Rights 540 Mandaratu at Other 390 Other Staattary Action: 290 AllOtherReanmpe-rty 550 Civil Right: I v1. ORIGIN (PLACE AN IN ONE Box ONLY) is?. r. 1 Original Proceeding 2 RemOVal from 3 Remanded from Appelate 4 Reinstated or 5 Transferred from 6 Multidistrict Litigation 7 Appeal to District Judge from State Court Court Reopened another district (specify) Magistrate Judgment gg??gg?n CHECK IF THIS IS A CLASS ACTION DEMANDS. - Check only ifdernanded in co taint: UNDER f.r.c.p. 23 - declaratory and injunctive relief way we: pas B'qu ES at it. DockeNu ma? DATE January 4, 2007 OF ATTORNEY OF RECORD January 24, 2000 lesson new on (3:10pm) 1/ Case Documentl Filed 01/04/07 ._caPiE5 ?ai.4_ . 1 "313% .r evaa?ie?ka+32529ema33?? 1. ?4 v_ - . 1?31 4?V'lh' . . cxuig?vxLi??Qhw~n Page 11 of 11