Monday, September 8, 2008

Wong v. Bush

Sep 5: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16799. 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. The Appeals Court said that because the issue presented is “capable of repetition, yet evading review,” it is not moot. and affirmed the decision of the district court.

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 Appeals Court said, "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."

Access the complete opinion (
click here).