FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEGAN WONG; NOELLE WONG; 

KA’IULANI EDENS; JESSE BROWNCLAY; 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, D.C. No.  v. 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
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. 

12374 WONG v. BUSH
COUNSEL

Lanny Sinkin, Hilo, Hawaii, for the plaintiffs-appellants.

12376 WONG v. BUSH
Edward H. Kubo, Jr., United States Attorney, Lawrence L.

Tong and Derrick K. Watson, Assistant United States Attorneys, Honolulu, Hawaii, for the defendants-appellees.

OPINION

WARDLAW, Circuit Judge: 

[1] Plaintiff-Appellants (“Appellants”), many of whom participated in protests on August 26 and 27, 2007, oppose the

Hawaii Superferry’s (“HSF”) operation to the Nawiliwili Harbor in Kauai, Hawaii, alleging that it is illegal. Appellants

appeal the district court’s denial of their motion for declaratory 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 Environmental 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 repetition, yet evading review,” it is not moot.1

See Fed. Election

1The 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). 

WONG v. BUSH 12377
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 success on the merits and the possibility of irreparable

injury; or (2) that serious questions going to the merits 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 success 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 sufficient 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 Babbitt 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. 

12378 WONG v. BUSH
[3] Although Appellants have standing to assert their claim,

we disagree that the rule establishing the security zone violates Appellants’ First Amendment rights. Some forms of

conduct are protected as symbolic speech, but the Supreme

Court has “extended First Amendment protection only to conduct 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 restriction. 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). Alternatively, if Appellants’ blockade is conduct that does not constitute 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 exhortations.”). 

[4] Appellants have standing to bring their NEPA claims.

Appellants assert that the Coast Guard failed to consider secondary environmental effects before establishing the security

zone. As recreational users of Nawiliwili Harbor, Appellants

have a concrete interest in ensuring that the Coast Guard conducts 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

WONG v. BUSH 12379
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 environmental 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 requirements for preparation of an EIS. See 40 C.F.R. § 1508.4

(2008). The Coast Guard established the security zone pursuant 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 agency’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 independently of each other.” (citing California Trout v. Schaefer,

58 F.3d 469, 472-75 (9th Cir. 1995) (upholding agency’s

12380 WONG v. BUSH
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 project))); Enos v. Marsh, 769 F.2d 1363, 1371-72 (9th Cir. 1985)

(upholding agency’s decision to exclude from its NEPA analysis the impact of nonfederal shore facilities for a new deep

draft harbor). 

[7] The Coast Guard did not exceed the regulatory authority granted to it in 50 U.S.C. § 191 and 33 C.F.R. § 165.30

when 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, harbors, 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 protect 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. 

WONG v. BUSH 12381