time i will take nine minutes he will take six and we will reserve six minutes for rebuttal i'm willing to tell you when the nine minutes are up and you can do you want thank you i want to start by explaining six lies in the environmental impact statement for the explosives handling wharfs that rendered the statement deficient under the national environmental policy act the first line the most important one was the statement that the site of this wharf was the quote only available location along the bangor waterfront that ensures required separation distances are maintained so this is telling the public we're ensuring that there is a minimum safe distance between explosives handling facilities when internally the navy was discussing the very opposite that the explosives safety board had rejected the site as being dangerously close to the existing operation number two the environmental impacts said that this project would not conflict with any federal requirements and we know now from the record that is not the case this project actually violates the department of defense's own explosives safety citing regulations stuart isn't the two thousand and four case here i know you're going to go through all of your issues but just trying to figure out why the two thousand four ground zero versus u s navy doesn't control here it does not control because that case concerned the risks of a single missile mishap those nineteen ninety studies that the court and the navy relied on in that case had to do with what happens when one missile is involved in an accident this is an entirely different situation this is the first time that the navy has plan to handle missiles at two adjacent facilities at the same time and the regulatory body that is responsible for protecting public safety in these situations said you don't have the data you don't have the scientific data to show that this is safe so it's completely different in the in the other case the court was satisfied that there had been a study of the risk this is a different risk and it's never been studied and the record shows that the explosives safety board raised that concern going back to my own list of lies and this is related the public was told that no consultations or permits are required for safety and we know that's not the case of course the department of defense exposed the safety board good to have regulatory authority and was supposed to be publicly consulted and its comments underneath there were required to be part of the publicly distributed environmental impact statement that didn't happen the public was told basically this review didn't even need to occur this is an unusual situation in which  the whole documentation of the department of defense explosive discussion regulations and so on was in the administrators record but not in the record that was available to the there was quite a bit of public participation in the e i f process and one of the most common concerns expressed in that process was the lack of safety analysis the navy  internally during the public process that it was not getting safety approval yet made the internal decision to hide that fact from the public into rely on what it calls a secretarial certification  there was no come tells production in this case the navy voluntarily chose to put thousands and thousands of documents into the administrative record and why there was such a dramatic disparity between what was disclosed during the e i f process and what has been disclosed since then is really a question that the navy has to answer but certainly those have all the relevant information but to to make sure that the that the public sees the analysis and and has the scientific basis for the conclusions required to underneath put to disk to analyze the risk of explosion hazards at bangor why should i have been required to disclose that the the board  withheld approval of the new war the need for regulations require that when a can possible catastrophic impact it is possible even if it is improbable as in this case the the e i a s still has to disclose that there is missing incomplete information and has to say what it doesn't know and and has to explain why it can't obtain the relevant risks and the nature of the risk may be influenced by have catastrophic but nonetheless there was inclusion here that the risk was insignificant but the dispute with the explosive story was a precisely on that question and there are so so therefore that's right and the navy when i say there wasn't a dispute the navy admits in the record that there are they don't have the data to show that an explosion at one w not cause a propagation to missiles in the other words namely doesn't dispute that that's in the record they have never analyzed that so in that sense there's not a dispute with the explosive safety part the the only dispute was whether they should be able to go ahead with a project and as we know in this case they resorted to just assuming the risk of violating the safety standards  that morphs one alone is insufficient to meet the the operational needs as arbitrary and could caprices so what can you identify any other alternative  action to building the second war that would allow the navy at least the four hundred operational days to serve the try to program because i didn't see i know you're challenging that that they didn't do enough to  look for alternatives but i didn't see were you offered any other alternatives the well the relief or request if i understand your question correctly the relief or question at this point is another study that addresses add a minimum is met here because the conclusions in the us run counter to the evidence that was before the agency and when that is a case to be blunt when lies are told the courts have said this court has said that is arbitrary and capricious and as for the allt if you were asking about what is the alternative to building the wharf in this location well once alternative that has never been discussed is what about restoring the fragmentation barrier the fragmentation barrier was originally required as part of the the environmental impact statement doesn't address that at all asking what the current status of this project there was a story in the kits up sun a month ago that said it's ninety percent complete but of course that does not mean that there is no effective remedy available as this court is held in numerous cases the completion of a project does not moot anita case if it did then agencies could just ignore the requirements of the law by waiting until by ignoring the requirements and while the case wise its way through the courts but if it is ninety percent complete what would be the remedy the remedy would be to require a supplemental study that examines these risks that have never been examined studying the actual the risk that an explosion at one whar will cause an explosion at the other has never been studied were the kinds of this concern is about the use of the project not the building of it i mean the easy answer is alternately they could just abandon it  typically you know the concern seemed the concerns that were raised seem to be related to a lot to the construction in much of anything else well there was a there six pages devoted to safety but we're talking about a project that could cause a fireball across hood canal so safety should have been a much bigger part of that yes and i'm  order judge layton entered on november ninth two thousand and twelve in which after being approached ex party he for bade my clients from making any reference or using in any way even in the litigation a number of documents which the navy put in the public record without any compulsion at all a number of documents which is actually available on the internet yesterday when i last checked a number of documents which mr milner has been able to routinely file find for the last six years and yet because of this order for the last three and a half years my clients are the only people in the world who cannot mention these documents or use them or distribute them and we have a bit that order for the last three and a half years there the main legal issue before you really is to analyze whether or not this case is like cox broadcasting and governed by those cases of cops broadcasting in florida star or whether as the navy would have you believe it is like the r seattle times case there are six reasons why it is nothing like the reinhart case and why it is governed by cox broadcasting first of all there was no compulsion to count so i have a question for you about interpretating the order if what that found your problem you never words the ones that are on the internet that you found in the seattle times that you located you know i'm the wall street journal whatever position if i understand your position with respect to wines that are publicly available from independent sources so what specifically is the problem with the ones that are uniquely that would be uniquely prohibited member of my proposed construction the problem is that for those that don't have an independent source the u s supreme court has said that once the government puts a that you think it's wrong or orders is wrong or violating your first amendment rights by not allowing to disseminate the information that's in this category of not public but in the in the case is that right well it is public because they put it in the public domain some of it they attach to admiral benedict's pleading and they filed it in the court file for forty six days it was public the other documents that i'm sure they they lodged with the clerk twenty thousand pages of documents available to the public as in cox as in florida starr all of person could go on pacer and find part of the documents in the sealed excerpts of record pages sixteen ninety nine to seventeen o two i think they are is what was attached to admiral benedict's declaration anyone could go on pacer and find that there are other in florida stars in cox broadcasting somebody went to the right in cox yes we're the only people in the world who can't refer the but that's not i mean you're citing cox but cox is distinguishable in that regard in in what but the fact that the gag order from the cases you rely upon such as far cox and oklahoma publishing company is not same situation as here because here the district court's order only reached the parties to the litigation right i think that makes it far worse because everyone else in the world can do this but not my clients and their whole rationale for this is a security rationale that it will be that terribly but that you can bet you a chill to the degree as it's publicly available now publicly available are you do agree that the for things that are on the internet right now that were on the internet yesterday when i last checked as of this moment we can't use them that's were sent in but a regular where is that in the record worse the your honor we can't i don't know how to assume that excuse me i thought we had narrowed that your argument to the question whether material that is not available on the internet you should be able to use it let's assume for present purposes if it's available on the internet or i don't know the state for anything else you can use it now but your argument ok now my argument is that when government inadvertently places something in the public record as for example that it in florida star the s supreme court said this information would not be available but for the inadvertence of government and they said to bet they said interest in any of those cases to be about inference that was for properly publicly available inclusion by the department of her full name in a report made available to the public ok it's about inadvertence and inadvertent doesn't matter t islamic foundation case which nobody seems to have cited which is exactly about infor and disclosure which we which we didn't held can be relied upon there were a number of that i believe that's a district court case and i'm not sure i remember correctly which one is which if i remember correctly in that case the people who were told they could not disseminate the document didn't want to disseminate the documents i hope to have that that's the right case but that one of the cases the navy i want to from reinhart is that i want to focus on the fact that reverend wright heart refused to give information to the seattle times the seattle times went to the trial court invoked the discovery rules asked for an order of compulsion got it reverend wright or was ordered forcibly to give these documents over no one ordered the navy to give these documents over they did it by themselves and  it actually took the navy only four days to violate the order which the judge enter a november night because four days later they again put some of the same documents in the record again in the end supplementing the administrative record and they can do it but my clients can't even reinhart the order granted permission even for the documents forcibly compelled that the seattle times could use them in the litigation but in this case the district court's order says specifically they may not be used in the litigation and mr george and i were not able to use those documents in the summary judgment in the preliminary injunction proceedings we could not use them says the only thing that we can do with those documents is show them to you for purposes of the first amendment issue last well i don't know that it matters to you that much you but if the court wishes to verify that you can find these duck most of these documents the big ones the eight hundred ninety four page document that i cannot name if you wish to verify that you can find it on the internet yourselves i have the that's great and the last thing i will say is that i would ask you then to say in a short order today that we can use it today and with opinion to follow up because we have been of being the court district court order which flat y says we can't for the last three and a half years and we would like to start using it ok thank you  the morning honors david gunter from the department of justice here on behalf of the navy so we start with that piece do you agree that if something's on the internet they can use it our understanding of just what is order is that he did not control documents that plaintiff got from an independent source that he was controlling only the documents that were before him within the courthouse and even if those same documents are currently on there and that they can use if they get a fussy and that that's our understanding and meanwhile the navy is also making efforts to get them off the internet because it's it's hard to control all  yes we believe that his order does not reach those documents if they get them from an independent source and that's what even if you later get it removed yes even if we later get moved again i'm not saying what other legal restrictions there might be  appropriate use of these documents and like judge leighton actually referred to one of those e mails when he said i think that the government counsel has set out a good understanding of this that actually incidentally although it's a bit of a tangent is why this does not fall within the vagueness cases that the plaintiffs cite because this is not like a statute where plaintiffs have no ability to go to the legislature and say what's allowed and what's not allowed here they could go to us and they could go to the district court and say we have a specific document that we like to use we got it from google and here's the address and we download it on this date is this covered by your order and we would have said we don't believe it is and judge layton could have answered yes or no and so there's no vagueness problem here there's no unconstitutionality based on what the order means incidentally that's what puts the order squarely within the zone of seattle times the right heart there the court was talking just about what can the plans to do with a document that they received through discovery in litigation now this is not a discovery process but it was a mandatory disclosure process one of the local rules just like you might make a mandatory discovery disclosure under rule twenty six point one and so when judge later found out that there was an inadvertent disclosure of documents that shouldn't be this close to use the tools that said that the order has to be justified by substantial government interest here there's a national security interest and it has to be no greater than necessary to achieve that interest and that's what i think really distinguishes us with it but what's being said is the difference here and set this was sitting on a public dr back for forty five days yourself it was not simply handed over to them within the constraints of a sealed discovery process it was only in the public docket because the particular local rule at issue here says that in these kinds of cases documents will be exchanged through the medium of putting the administrative record in the public docket that doesn't mean as in florida star where the where the report was at the police station that they're getting information at any point that was outside the supervision of the district court and judge layton drew reasonable lines around what plaintiffs could and couldn't do with this information met the requirement of seattle times that this be a tailored order the government asked for more from the court we said we leighton appropriately at least we say on appeal said you're not allowed to you're not required to give those documents back to the government the government's interest in protecting this national security information due process problem or something because the interest in not allowing them to use it in the litigation is so they don't know and once they do know it why can't they use it in the litigation and some sealed  public fashion i think i think i see the problem and the answer to this is a question why can't they use it in the litigation is it's not relevant to the litigation well that's a different problem i mean that's a different answer and i don't think there their interest in think you can separate out the fact that it's not relevant to the litigation because it's not disputed here that we appropriately designated these documents are in control unclassified controlled nuclear information or critical infrastructure security information it's assumed for purposes of this appear said it was not relevant because disclosed i see so you're right that weinberger was more about information that simply could not be disclosed and in more of a state secret doctrine which we're not relying on anything like state secrets here but then look at the families of this mothers for peace where the court said the navy can comply needs with its obligation to consider all of the necessary information that has to consider without necessarily doing the full disclosure that need would ordinarily require because of exception applies right and  why wasn't the navy required to publicly consult with the board before approving the final i think there are two answers to that question one is that the department of defense exposed the safety board is part of the department of defense m has to consult with its own agency the fish and wildlife service on issues that well this seems to be exactly that it seems to be an agency that is specifically directed at explosives risks i disagree well i mean the department of defense was a safety board that brings me to the second answer that which is that the department of defense explicit safety board has a particular mandate that may not be relevant to me but which is maximum possible protection and this court discussed that distinction in ground zero  that instance the argument was that this research group on on in was basically focused on domestic sheep and the issue was about  this big orange shape so therefore they weren't and it seemed to me there and it seems to me here that certainly they have a relevant expertise they know about  so it may be that the standard they apply is different but they know about explosive risk i think it's important remember though that the explosive safety board never said that this was an unsafe activity they never found that it was unduly risky and they  the conclusion and that this was an intentional risk hadn't been sufficiently proved out so let me try and clear up confusion on that the d d s the didn't contest our conclusion that the risk of an explosion of one missile as a result of an accident is less than one times ten to the my six less than one of the million what they were interested in is the probability that if that explosion occurred which is already less than a one of the million chance would it and he contracted that risk with the explosives were only mandate of maximum possible protection which the court can read about in the record for this case so that even if the risk was net negligible why wasn't the navy obligated to disclose the board had to not let them have denied the plan it was seeking to implement the board actually gave preliminary approval for a plan and asked for additional study so that it could understand the exact risk not of an explosion but of a property of another  that's right because but that is fully consistent with what this court said about the navy's need obligations in ground zero one in that case the plane is pointed out the navy has internal requirements that require it to look at maximum possible protection on these issues but that is different from the need for requirement of reasonably foreseeable risk and significant risk and that is not something that the navy is obligated to discuss underneath but again we found based on a quantitative analysis that there was less than a one in one million chance of an explosion and even less than that of an explosion that propagates to to the other facility and the specific here says precisely that analysis that was at the center of the boy you at least recognize concern that more had to be done so again the our our submission is that the risk of an accidental explosion of one missile is less than is below the threshold required for anything else and then the d s p was concerned about the risk of propagation which is even more unlikely because it is it is a possibility compounded against that already won a million probability but i would also point out for need for purposes that this court has said neither does not require the agency to go out and conduct new studies it's allowed to use the best available information that it has and ultimately the court has to apply a rule of reason of wilderness defenders at site in our brief and the easiest was a search for o b under snow basin which was the name of the project and there the agency used about studies from the early one nine hundred ninety s as here to conclude that there were none of a particular kind of protected fish in a stream and the player said no you have to go out and do an additional study today and the court said that's not what neither requires you can use that the agent i thought is not might require is if there is a basis for it extrapolating from ventur is that you don't have to do any research you just have to look at sas they're already so you're right if we can reasonably draw a conclusion from the data that currently exists then we're allowed to do that and so here the navy would have had to conduct a study that cost millions of dollars and would have delayed the construction of an essential facility in order to determine whether the risk of an unacceptable accident in particular the risk that the explosives were was asking about was less than one in one million or much much much less than one in one million when you're talking about the rule of reason underneath it's not reasonable to require the agency to to make an in depth analysis of every tiny possibility like that the navy is only required that may be a small risk of a very big problem that problem right and the courting ground zero one answer that point to it again that case was about explosives handling at naval base gets out and it said that when you're talking about catastrophic consequences you have to analyze them if the probability is unknown under the regulations here the navy did a quantitative analysis to try and pin down exactly what the problem i thought it didn't just use the old one no i'm sorry you conducted a new analysis which is in the record in the court can see that mostly in the supplemental excerpts of record calculations they just say that there should have been more disclosure of those calculations in the us and our submission is that the disclosure was sufficient given the very very small risk of the of the event that they're concerned about this is an unusual situation in which there's no i guess because of differences in what was should have been made publicly available much more in the administration for record publicly available in this train for records th and then the governor then the public could see at the time of the ai s so i cantered that your your arguments about this parse essentially harmless error i mean i gather you're not contesting that this material should have been available at the time the i actually am contesting that one so there are two separate questions that i would address one is that the entire administrative record doesn't have to be available at the time  draft so that it can be commented on for the final yes the administrative record of some is put together after the decision is already made so that judges can review the agency decision what's required of the time of the draft the ins is information that sufficient for the plaintiff to make intelligent comments about  purposes is did the agency have a good faith basis for making those designations at the time that it made them what i said why is that that i should because well think about the context of an administrative record like that and concluded that they did not that it did not have to with no life is not a legal standard to do that does or does the legal standard under u s c ten u s c one twenty eight is if the material could reasonably be expected to have an adverse impact on the common defense  security by significantly increasing likelihood of sabotage especially  right our first position is that we had a valid basis for designating this as non disclosable at the time our second position is that it is harmless error because the us has a quantitate has a qualitative discussion of these issues it talks about for example the four hundred day four hundred operational days requirement it talks about that there are explosives arks even though appendix e was not public and actually now the redacted version of appendix the has been released that does not reveal what those explosives  are and so the question underneath it is is this adequate for the public to have input on these issues and i think that we see from mr miller's comments that he clearly was able to comment on these things for example he proposed explicit safety arcs that the navy should be using instead of discussed at the material if it had to be available had to be available you can't back out and say we never had deleted all or can you do that i'm sorry judge i'm not i don't wish to use it i also arguing that all of this never had to be discussed at all because of ground zero one in the fact that the risk was some tiny yes i think that the navy could have written and asked that did not discuss this but it wanted to reassure the public of in particular one of the one of arcs one of the largest arcs the inhabited building distance which relates to homes and businesses that are not related to operational requirements this is the only location where it could put this war where that distance would be entirely within the bounds of the naval base and so i think it wanted to reassure the public but that would be the case but yes i think that under ground zero one the navy clearly could have simply not discussed this issue at all because the risk is so stout when to do just that said doesn't that still bring in the foia exception  disclose as much information as necessary for the public to have meaningful and we don't have to disclose everything in the administrative record because obviously the navy is having a lot of internal discussions that maybe having different people within the agency look at these issues and that's not all information that gets put into the draft i asked for public comment the question is could the public have engaged in participation on this issue and i think that the record shows that it could ok your time is up ok or something you're really trying to say i'm sorry and that's just something you really feel you must say  in my in my last ten seconds i'll just make one point which i haven't heard yet which is that this is an essential project to national security in the navy had limited options for it so what the navy did was make a full analysis and disclose as much as it responsibly could disclose and that's all that in return and that's the problem and fact it didn't that's really the problem here because you later concluded that you can disclose more than you actually discuss yes we later concluded that because different reviewers looking at the information i  meet its naval obligations regardless of what it may later have concluded about those documents my think it's admirable that you just close it now but at the same time it makes an interesting question well that's that's an interesting point about this case because the navy was just trying to get this right it has made some mistakes with these documents and it was trying to get this right and judge right into it when he entered his protective order he was trying to get this right he says congress has protected this information from disclosure and what can i do using my tool control to don and i can know what happened is the person who sent in the wrong record with the information and it's happened before i mean when i was in practice is that right and i can't speak to that but once it has happened what are the district courts powers and where the navy's obligations so we have tried to get this right and protect the information that congress had said must be protected and if the plaintiffs were trying to exploit this information and let the horse out of the barn as often as they possibly can ok thank you very much  counsel in this court has said that does not suffice that that cannot cure violations of anita which occurred during the public process there's no harmless error when you lie to the public throughout the process when that when the public is supposed to be informed so that has a meaningful opportunity to influence a project that didn't happen in this case now we're hearing from counsel oh we did we did conduct a new analysis well that wasn't in the i a f there was no reference whatsoever to any scientific basis for the statement that this project causes no increased danger no scientific yes must explicitly refer to the scientific or other sources relied upon for conclusions in the i a s that didn't happen here there's not one referenced in any study either old or new and just very quickly i wanted to read to you the navy's own words regarding this issue of whether it did a study or not there is no clear data to answer the d d inquiry as such the navy cannot satisfy the d d s b s request or provide data demonstrating non propagation in order to satisfy this question an analysis would need to evaluate a scenario in which a missile detonated during loading on the hook over the missile hole and determine what degree of propagation is likely to other missile on board that s s b end as that would be used to determine what level of propagation or damage might occur to a missile being loaded and missiles in the s s being and hall at the other e h w so the these are the navy's own words to say we don't have that that that's what again you expressed some wonder that we didn't consult with each other the parties and i just wanted to address that for a moment to tell you exactly what happened on the independent source issue on november ninth  he said i'll tell you after i asked the government the government did not say of course they can we didn't move they said nothing he said nothing we move for reconsideration clarification the government did not say of course they can the government said nothing ok but sometimes you  transfers and you you said that you thought that the can't use it was maybe a due process problem but not a first amendment problem and we took the position below it took the position here that it is a first amendment problem because it includes the right to petition the government for redress of