FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAN DIEGO NAVY BROADWAY

COMPLEX COALITION,

Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF

DEFENSE; ROBERT M. GATES, in his

official capacity as Secretary of the

U.S. Department of Defense;

UNITED STATES DEPARTMENT OF

THE NAVY; RAY MABUS, in his

official capacity as Secretary of the

U.S. Department of the Navy;

NAVAL FACILITIES ENGINEERING

COMMAND; CHRISTOPHER J.

MOSSEY, in his official capacity as

Commander of the Naval Facilities

Engineering Command; NAVAL

FACILITIES ENGINEERING COMMAND

SOUTHWEST; S. KEITH HAMILTON, in

his official capacity as Commander

of the Naval Facilities Engineering

Command Southwest,

Defendants-Appellees.

No. 12-57234

D.C. No.

3:11-cv-00154-

JM-WMC

OPINION
2 SDNBCC V. USDOD

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, Senior District Judge, Presiding

Argued and Submitted

February 5, 2015—Pasadena, California

Filed March 30, 2016

Before: Harry Pregerson and Jacqueline H. Nguyen, Circuit

Judges and James G. Carr,*

 Senior District Judge.

Opinion by Judge Pregerson;

Dissent by Judge Carr

SUMMARY**

Environmental Law

The panel affirmed the district court’s summary judgment

in favor of federal defendants, and denial of the San Diego

Navy Broadway Complex Coalition’s motion for summary

judgment, in the Coalition’s challenge to the issuance of a

2009 Finding Of No Significant Impact based on a 2009

Environmental Assessment for redevelopment of a four-block

* The Honorable James G. Carr, Senior District Judge for the U.S.

District Court for the Northern District of Ohio, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SDNBCC V. USDOD 3

site owned by the United States Navy in downtown San

Diego.

The panel held that the federal defendants fulfilled their

obligations under the National Environmental Policy Act. 

The panel held that San Luis Obispo Mothers for Peace v.

Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir.

2006), required the federal defendants to address the

environmental consequences of a possible terrorist attack on

the Navy Broadway Complex. Specifically, the panel held

that the Navy considered the relevant factors in its “hard

look” at potential terrorism at the Navy Broadway Complex. 

The panel also held that the federal defendants did not abuse

their discretion in determining that there was no significant

impact from the possible environmental effects of potential

terrorism at the Navy Broadway Complex, and a

Supplemental Environmental Impact Statement was not

required.

District Judge Carr dissented from the majority’s

determination that the federal defendants adequately

addressed the environmental consequences of a possible

terrorist attack on the Navy Broadway Complex.

COUNSEL

Corey J. Briggs (argued) and Mekaela Gladden, Briggs Law

Corporation, Upland, California, for Plaintiff-Appellant.

Allen M. Brabender (argued) and Ignacia S. Moreno,

Assistant Attorney General, United States Department of

Justice, Environmental & Natural Resources Division,

Washington, D.C., for Defendants-Appellees.
4 SDNBCC V. USDOD

Allen Scott Andrews, San Diego, California, for Amicus

Curiae Pro Se.

John McNab, San Diego, California, for Amicus Curiae Pro

Se.

OPINION

PREGERSON, Circuit Judge:

The San Diego NavyBroadwayComplex Coalition (“the

Coalition”), a San Diego civic group, appeals a summary

judgment ruling in favor of the United States Department of

Defense and various other named defendants (collectively,

“Federal Defendants”), as well as the denial ofthe Coalition’s

motion for summary judgment against the Federal

Defendants. The Coalition challenges the issuance of a 2009

Finding Of No Significant Impact based on a 2009

Environmental Assessment for redevelopment of a four-block

site owned by the United States Navy in downtown San

Diego. The Coalition argues that the district court erred in

granting summary judgment in favor of the Federal

Defendants, insisting that the Federal Defendants violated the

National Environmental Policy Act (“NEPA”) by failing to

produce a Supplemental Environmental ImpactStatementthat

addressed a potential terrorist attack at the redeveloped

military and civilian facilities near the San Diego waterfront. 

We affirm the district court’s decision.
SDNBCC V. USDOD 5

FACTUAL AND PROCEDURAL BACKGROUND

A. The San Diego Navy Broadway Complex

The San Diego Navy Broadway Complex (“Navy

BroadwayComplex”) is a fifteen-acre waterfront site located

adjacent to downtown San Diego, California. The site

currently serves as the home to several non-operational,

administrative components of the United States Navy. The

current on-site Navy facilities were built more than seven

decades ago.

In 1982, the Navy began considering options for

consolidation of various Navy installations in the San Diego

area. Because of budget constraints, the Navy pursued a “colocation” program in which the federal government retained

title to property and leased portions of the property for private

revenue-generating uses that would offset the cost of new

administrative facilities. Congress enacted legislation in

1986 that authorized the Secretary of the Navy to pursue a

public-private venture to implement the co-location concept

at the Navy Broadway Complex site. See National Defense

Authorization Act for Fiscal Year 1987, Pub. L. 99-661,

§ 2732, 100 Stat. 3816 (1986).

In June 1987, the Navy and the City of San Diego

(“City”) executed a Memorandum of Understanding to

establish the terms of potential future development on the

Navy Broadway Complex site. To comply with its

environmental obligations under NEPA, the Navy completed

an Environmental Impact Statement (“EIS”) in 1990 and

issued a Record of Decision in July 1991. The EIS evaluated

six action alternatives, in addition to the no-action alternative,

and discussed a full range of environmental issues. The
6 SDNBCC V. USDOD

Record of Decision memorialized the Navy’s decision to

redevelop the Navy Broadway Complex site and identified

essential uses for the site. The Navy Broadway Complex

would expand from 861,000 square feet of Navy office,

warehouse, and industrial space to 3.25 million square feet of

mixed military and civilian facilities, including hotels, retail,

and entertainment spaces.

The Record of Decision directed that the next step was for

the Navy and the City to enter into a development agreement,

as contemplated under the 1987 Memorandum of

Understanding. Negotiations and state litigation followed,

including consultation and issuance of a consistency

determination from the California Coastal Commission to

ensure the Navy Broadway Complex was consistent, to the

extent possible, with the state’s coastal zone management.

Following public review, on November 2, 1992, the City

enacted an ordinance approving the Development Agreement

for the Navy Broadway Complex. The Development

Agreement incorporated a development plan, urban design

guidelines, and provided a guide to the planning and approval

process for the project. The Development Agreement also

included environmental mitigation measures that were

consistent with the 1990 EIS. However, adverse San Diego

real estate conditions in the early 1990s caused the Navy and

City to delay project implementation.

B. The 2006 Environmental Assessment

As the real estate market in San Diego improved in the

mid-2000s, the Navy took steps to implement the
SDNBCC V. USDOD 7

Development Agreement.1 To facilitate implementation of

the Development Agreement, and in consideration of the

amount of time that had passed since the 1990 EIS, the Navy

completed an Environmental Assessment under NEPA in

2006 that analyzed the environmental impacts associated with

implementing the 1991 Record of Decision and the 1992

Development Agreement (“2006 EA”). As part of the 2006

EA process, as well as a means to re-introduce the

development plan to the public, five public hearings took

place beginning in April 2006. The Navy considered the

resulting public comments in its NEPA analysis.

In late 2006, the Navy published a notice that the 2006

EA was available for public viewing and issued a 2006

Finding of No Significant Impact for the Navy Broadway

Complex’s development. A private development partner,

Manchester Pacific Gateway, LLC, signed a lease in

November 2006 after the issuance of the 2006 Finding of No

Significant Impact.

In January 2007, the Coalition, a citizens’ group

purporting to represent San Diego residents, filed a lawsuit

alleging, among other claims, that the Navy failed to comply

with NEPA’s public notice and participation provisions prior

to issuing the 2006 EA and 2006 Finding of No Significant

Impact. The district court agreed that the administrative

record was insufficient to demonstrate that the Navy gave

proper public notice of its intent to prepare the 2006 EA and

Finding of No Significant Impact. The district court granted

1

In 2005, the federal Base Realignment and Closure Commission issued

a directive to the Navy to either implement the Development Agreement

or close the NavyBroadwayComplex and relocate the commandsto other

bases in San Diego, thereby adding urgency to the redevelopment effort.
8 SDNBCC V. USDOD

partial summary judgment in favor of the Coalition and

instructed the Navy to address the insufficiency.

C. The 2009 Environmental Assessment

The Navy produced a new draft EA on September 17,

2008 and widely publicized the draft EA’s public availability. 

Three public hearings were held in September and October

2008. In March 2009, the Navy issued a finalized EA (“2009

EA”). The 2009 EA incorporated updated conditions in San

Diego and examined the Navy Broadway Complex’s

potential as a terrorism target. The Navy found that “[b]ased

on current threat reporting, there is no known specific threat

targeting” the Navy Broadway Complex. The 2009 EA

concluded that the risk of terrorism was “too speculative,

remote, and removed from the environmental effects of the

proposed action to merit further analysis under NEPA.” The

Navy altered the final 2009 EA to include its response to

public comments about terrorism in the draft EA.

After finalizing the 2009 EA, the Navy issued a 2009

Finding of No Significant Impact, concluding that no changed

or unexplored circumstances required a new or Supplemental

EIS before the Navy proceeded with redevelopment of the

Navy Broadway Complex.

On January 25, 2011, the Coalition again filed suit in

federal district court challenging the redevelopment of the

Navy Broadway Complex on several grounds. One such

ground was the Navy’s alleged failure to prepare a

Supplemental EIS that adequately examined the potential

environmental impact of a terrorist attack at the Navy
SDNBCC V. USDOD 9

Broadway Complex.

2 Both parties moved for summary

judgment.

The district court granted the Navy’s motion for summary

judgment on all claims. Addressing the claim that the Navy

failed to adequately consider the potential environmental

impact of a terrorist attack, the district court stated that “the

Navy took a hard look at the environmental consequences of

potential terrorist attacks and adopted standards to address

potential terrorist concerns.” The court further remarked that

since “the same naval administrative services that are

currently located on the [Complex] site will remain after

construction of the project . . . the potential terrorist threat

remains essentially the same, except that the administrative

services will be located in modern, improved, and higher

security facilities.” The district court entered final judgment

for the Navy on October 17, 2012. The Coalition timely

appealed.

DISCUSSION

A. National Environmental Policy Act

NEPA creates a “national policy [to] encourage

productive and enjoyable harmony between man and his

environment.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.

752, 756 (2004) (quoting 42 U.S.C. § 4321). NEPA was

2 Before the district court, the Coalition claimed that: (1) the Federal

Defendants failed to adequately consider alternatives under NEPA; (2) the

Federal Defendants failed to prepare a Supplemental EIS based on alleged

significant new circumstances and information relating to terrorism,

climate change, seismic hazards, traffic impacts, excessive development,

and cumulative impacts; and (3) the Federal Defendants violated NEPA

by prejudicing the outcome of the NEPA process.
10 SDNBCC V. USDOD

designed to minimize environmental damage and to promote

“the understanding of the ecological systems and natural

resources important to” the United States. Id. The Supreme

Court described NEPA’s “twin aims” as “plac[ing] upon an

agency the obligation to consider every significant aspect of

the environmental impact of a proposed action[, and]

ensur[ing] that the agency will inform the public that it has

indeed considered environmental concerns in its

decisionmaking process.” Baltimore Gas & Elec. Co. v. Nat.

Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).

NEPA requires that federal agencies prepare an EIS. To

fulfill the NEPA policy aims, agencies shall:

include in everyrecommendation or report

on proposals for legislation and other major

Federal actions significantly affecting the

quality of the human environment, a detailed

statement by the responsible official on—

(i) the environmental impact of the

proposed action,

(ii) any adverse environmental effects

which cannot be avoided should the

proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local shortterm uses of man’s environment and the

maintenance and enhancement of longterm productivity, and
SDNBCC V. USDOD 11

(v) any irreversible and irretrievable

commitments of resources which would

be involved in the proposed action should

it be implemented.

42 U.S.C. § 4332(2)(C).

As an alternative to preparing an EIS, an agency may

prepare a more limited Environmental Assessment (“EA”)

which includes a Finding of No Significant Impact, briefly

stating why the action will not significantly impact the

environment. Dep’t of Transp., 541 U.S. at 757–58. But if

the EA does not lead to the conclusion that a Finding of No

Significant Impact is warranted, the agencymust still prepare

an EIS. Id. at 757.

B. Standard of Review

We review a district court’s grant of summary judgment

in NEPA cases de novo. Northern Cheyenne Tribe v. Norton,

503 F.3d 836, 845 (9th Cir. 2007). An agency’s action “must

be upheld unless it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.’” 

Tri-Valley CAREs v. U.S. Dept. Of Energy, 671 F.3d 1113,

1123 (9th Cir. 2012) (quoting 5 U.S.C. § 706(2)(A)). NEPA

“does not mandate particular results but simply provides the

necessary process to ensure that federal agencies take a hard

look at the environmental consequences of their actions.” Id.

(quoting Muckleshoot Indian Tribe v. U.S. Forest Serv.,

177 F.3d 800, 814 (9th Cir. 1999)) (internal quotation marks

omitted). We examine an EA “to determine whether it has

adequately considered and elaborated the possible

consequences of the proposed agencyaction when concluding

that it will have no significant impact on the environment.” 
12 SDNBCC V. USDOD

San Luis Obispo Mothers for Peace v. Nuclear Regulatory

Com’n, 635 F.3d 1109, 1119 (9th Cir. 2011) (citing Ctr. for

Biological Diversity v. NHTSA, 538 F.3d 1172, 1215 (9th Cir.

2008)). We must consider “whether the EA fosters both

informed decision-making and informed public

participation.” Ctr. for Biological Diversity, 538 F.3d at 1194

(citations omitted).

C. Potential Terrorism Must Be Considered Under

NEPA.

In San Luis Obispo Mothers for Peace v. Nuclear

Regulatory Commission, theNuclearRegulatoryCommission

(“NRC”) argued that the construction of an installation for the

on-site storage of spent nuclear fuel rods did not require the

NRC “to consider the possibility of terrorist attacks” for the

purposes of NEPA. 449 F.3d 1016, 1035 (9th Cir. 2006)

(“Mothers for Peace I”). This court held that while “security

considerations may permit or require modification of some

. . . NEPA procedures,” such modifications do not absolve an

agency for its legal duty to fulfill NEPA’s requirements, such

as public contribution to the NRC’s decision-making process. 

Id. at 1034. We determined the NRC’s categorical dismissal

of the possibility of a terrorist attack was unreasonable and

remanded for further proceedings. Id. at 1030, 1035.

In the instant case, the Federal Defendants argue that our

holding in Mothers for Peace I that terrorism must be

considered under NEPA is inapplicable to the redevelopment

of the Navy Broadway Complex. While the Federal

Defendants correctly state that the nuclear fuel storage

facility at issue in Mothers for Peace I is not the same as the

Navy Broadway Complex, the Coalition is correct that the
SDNBCC V. USDOD 13

Navy Broadway Complex can hardly be classified as

“everyday facilities” as the Federal Defendants assert.

The Navy Broadway Complex currently holds, and after

redevelopment will continue to hold, major military

commands coordinating “base operating support functions for

operating forces throughout the region,” as well as providing

“logistics, business, and support services to . . . commands of

the Navy[,] Coast Guard . . . and other joint and allied

forces.” The facility will be located in heavily-populated

downtown San Diego “adjacent to the San Diego Bay

waterfront” and “surrounded by a mix of urban uses,”

integrating hotels, commercial facilities, and public space into

the Navy Broadway Complex site itself. As the Navy stated

when providing a terrorism threat assessment for the 2009

EA, “a general threat exists in the U.S. from al Qa’ida and

affiliated groups and individuals.”

Given the government’s assessed general risk of

terrorism, the location of the redevelopment project, and the

military commands to be housed in the Navy Broadway

Complex, we reject the Federal Defendants’ arguments

against applying Mothers for Peace I and find that they must

address the risk of a possible terrorist attack in their NEPA

analysis.

D. The 2009 EA Sufficiently Satisfies NEPA’s

Requirements.

The level of analysis provided by the Federal Defendants

in the 2009 EA was sufficient to satisfyNEPA’s requirements

under Mothers for Peace I. After issuing a draft EA in

September of 2008, the Navy held three public meetings and

received numerous public comments related to the threat of
14 SDNBCC V. USDOD

terrorism. The Navy responded to the comments and

modified the 2009 EA to address the public’s concerns

regarding terrorism. Such constructive exchanges with the

public demonstrate the “informed public participation” that

NEPA requires. See Ctr. for Biological Diversity, 538 F.3d

at 1194; see also Save the Peaks Coal. v. Forest Serv.,

669 F.3d 1025, 1037 n.5 (9th Cir. 2012) (“[C]ourts may

consider responses to comments for confirmation that an

agency has taken a ‘hard look’ at an issue.”).

The Naval Criminal Investigative Service (“NCIS”), a

security, counter-intelligence, counter-terrorism and law

enforcement agency conducted the threat assessment on the

proposed Navy Broadway Complex. Looking at national,

regional, municipal, and specific threats to the Navy

Broadway Complex, NCIS determined that “no known

specific threat of a terrorist attack” existed. We believe that

the Navy erred by including this reasoning in its analysis. 

The risks associated with terrorism are constantly in flux, and

whether or not the intelligence community is aware of a

specific threat to a facility at the time a NEPA analysis is

conducted should have no bearing on whether to consider the

impacts of an attack. Nevertheless, as explained below, we

deem the Federal Defendants’ NEPA analysis sufficient

despite this erroneous finding.

The modified 2009 EA clearlyexplained the Navy’s AntiTerrorism Force Protection requirements and clarified that

those requirements “would apply to all onsite buildings

occupied either wholly or partially by [Department of

Defense] personnel,” provided such personnel meet a

minimum occupancy rate in the building. The 2009 EA also

incorporates by reference the Unified Facilities Criteria

specifications for the Department of Defense’s Minimum
SDNBCC V. USDOD 15

Antiterrorism Standards for Buildings, UFC 4-010-01

(“Unified Facilities Criteria”).3

A review of the Unified Facilities Criteria demonstrates

that the Anti-Terrorism Force Protection requirements are

based on an examination of plausible terrorist attack

scenarios including attacks by explosives, vehicle bombs,

waterborne vessel bombs, placed bombs, mail bombs, indirect

fire, direct fire, as well as chemical, biological, and

radiological weapons. UFC 4-010-01, DoD Minimum

Antiterrorism Standards for Buildings (8 October 2003 as

amended in 2007) Chapter 2, 3–4. The Unified Facilities

Criteria mandates a planning process for the Navy Broadway

Complex designed to ensure protection against terrorism and

other security concerns by considering various “possible

incidents or modes of attack” referred to by the Coalition’s

expert. Id. at Chapter 1, 2.

Further, the 2009 EA stated that antiterrorism building

standards would “reduce the potential damage that could be

inflicted by terrorist activity.” And the complex would be

limited to administrative functions and would not remain

operational if subject to a terrorist attack. The Navy further

concluded that the complex “would not jeopardize the

national security of a military installation or the safety of our

citizens” by virtue to its proximity to non-government

buildings.

3 The Department of Defense Minimum Antiterrorism Standards for

Buildings, UFC 4-010-01, (8 October 2003 as amended in 2007) is

available at http://wbdg.org/ccb/DOD/UFC/ARCHIVES/ufc_4_010_01

_2003.pdf (last checked February 29, 2016).
16 SDNBCC V. USDOD

We are mindful of the Supreme Court’s admonition

against imposing additional procedures on an agency’s NEPA

decision-making process. See Vermont Yankee Nuclear

Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,

548–49 (1978). “The scope of an agency’s inquiry must

remain manageable if NEPA’s goal of ensuring a fully

informed and well considered decision is to be

accomplished.” Metro. Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766, 776 (1983) (citation and internal

quotation marks omitted). Moreover “an agency [such as the

Department of the Navy] must have the discretion to rely on

the reasonable opinions of its own qualified experts even if,

as an original matter, a court might find contrary views more

persuasive.” Marsh v. Oregon Nat. Res. Council, 490 U.S.

360, 378 (1989).

In sum, the Navy’s 2009 EA identifies and incorporates

by reference the Unified Facilities Criteria, which was made

available to the public and explains the minimum

antiterrorism force protection standards for public

consideration. Further, “informed public participation” that

included considerations of those antiterrorism force

protection standards at the Navy Broadway Complex is

evident in the record, in the public’s participation in

meetings, in the Navy’s solicited public comments, and in the

Navy’s responses to those comments.

We are satisfied that the Navy’s 2009 EA “foster[ed] both

informed decision-making and informed public

participation.” Ctr. for Biological Diversity, 538 F.3d at 1194

(internal quotation marks omitted). The Navy could certainly

have made the public’s participation easier by including more

specific information about the potential environmental effects

of terrorism and by adding information from the Unified
SDNBCC V. USDOD 17

Facilities Criteria in the 2009 EA itself to create a single,

clear document. Nonetheless, the Federal Defendants’

method of addressing those concerns can “reasonably be

discerned.” Mothers for Peace II, 635 F.3d at 1118. The

Navy considered the relevant factors in its “hard look” at

potential terrorism at the Navy Broadway Complex. The

Federal Defendants did not abuse their discretion in

determining that there was no significant impact from the

possible environmental effects of potential terrorism at the

Navy Broadway Complex, and a Supplemental

Environmental Impact Statement is thus not required.

CONCLUSION

Our precedent requires the Federal Defenders to consider

the environmental impact of the Navy Broadway Complex’s

development, and to inform the public that they have

considered environmental concerns in their decision-making

process. We conclude that they have taken a hard look at the

environmental consequences of their actions, and therefore

fulfilled their obligations under NEPA.

AFFIRMED.

CARR, Senior District Judge, dissenting:

I agree that San Luis Obispo Mothers for Peace v.

Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir.

2006), required the Federal Defendants to address the

environmental consequences of a possible terrorist attack on

the San Diego Navy Broadway Complex. But I respectfully
18 SDNBCC V. USDOD

dissent from the majority’s determination that the Federal

Defendants adequately addressed those consequences.

The Naval Criminal Investigative Service determined

there was “no known specific threat” of a terrorist attack at

the Complex. For that reason, the Federal Defendants

deemed the risk of such attacks “too speculative, remote and

removed from the environmental effects of the proposed

action to merit further analysis[.]” 

That reasoning is deeply flawed, as the majority rightly

observes. Mothers for Peace makes clear that “[t]he numeric

probability of a specific attack is not required in order to

assess likelymodes of attack, weapons, and vulnerabilities of

a facility, and the possible impact of each of these on the

physical environment[.]” 449 F. 3d at 1031.

What is more, the Federal Defendants have not ruled out

the possibility of a terrorist attack at the Complex. Cf.

Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of the

Navy, 383 F.3d 1082 (9th Cir. 2004) (Navy not required to

consider environmental impact of accidental missile

explosion, where Navy determined risk of such explosion “is

between one in 100 million and one in 100 trillion”). Rather,

they have acknowledged the “significant” risk of terrorism in

the continental United States and identified “a wide variety of

attack methods” terrorists are likely to employ. Accordingly,

the Federal Defendants could have, and should have,

considered the environmental impact of at least a few attack

scenarios at the Complex.

I am mindful that the Federal Defendants revised the

Environmental Assessment after receiving public comments

about a potential terrorist attack at the Complex. But those
SDNBCC V. USDOD 19

revisions only strengthened the Complex’s defenses against

a potential terrorist attack; they did not assess the likely

environmental impact of such an attack.

For these reasons, I respectfully dissent.