-RBB San Diego Navy Broadway Complex Coalition v. United States Coast Guard et al, No. 3:2010cv02565 - Document 32 (S.D. Cal. 2010)
Court Description: ORDER denying 4 Temporary Restraining Order and Preliminary Injunction. Signed by Judge Irma E. Gonzalez on 12/21/10. (lao)
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-RBB San Diego Navy Broadway Complex Coalition v. United States Coast Guard et al Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAN DIEGO NAVY BROADWAY COMPLEX COALITION, CASE NO. 10cv2565-IEG(RBB) 12 Plaintiff, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Order Denying Temporary Restraining Order UNITED STATES COAST GUARD; CAPTAIN THOMAS M. FARRIS, in his official capacity as the United States Coast Guard Captain of the Port, San Diego; SAN DIEGO UNIFIED PORT DISTRICT; ROBERT VALDERRAMA, in his official capacity as San Diego Unified Port District Commissioner; STEPHEN C. PADILLA, in his official capacity as San Diego Unified Port District Commissioner; MICHAEL B. BIXLER, in his official capacity as San Diego Unified Port District Commissioner; STEPHEN P. CUSHMAN, in his official capacity as San Diego Unified Port District Commissioner; LOU SMITH, in his official capacity as San Diego Unified Port District Commissioner;and JOHN A. BULDUC, in his official capacity as the Chief of Harbor Police for the San Diego Unified Port District, Defendants. Plaintiff San Diego Navy Broadway Complex Coalition (“SDNBCC”) has filed a Complaint for Declaratory, Injunctive, and Mandamus Relief, alleging that Defendants, the U.S. Coast Guard, Captain Thomas Farris, the San Diego Unified Port District, the Port District -1- 10cv2565 Dockets.Justia.com 1 Commissioners, and the Chief of Harbor Police for the Port District, have failed to enforce federal 2 laws and regulations with respect to establishing a security zone on shore around cruise ships 3 entering and berthing in the Port of San Diego. Presently before the Court is Plaintiff’s application 4 for a temporary restraining order, to enforce the 100-yard security zone on the shore when the 5 Holland America Line Oosterdam is at Broadway Pier in the Port of San Diego, beginning on 6 December 22, 20101, and when any other cruise ships are berthed at the Pier and within 100 yards 7 of the shore at the Broadway Pier. The security zone Plaintiff asks the Court to enforce by a TRO 8 would require closure of portions of the intersection of Harbor Drive and Broadway.2 9 The San Diego Unified Port District, its Commissioners, and the Chief of Harbor Police 10 (collectively “Port District”) and the U.S. Coast Guard and Captain Farris (collectively “federal 11 Defendants”), each filed oppositions to the Plaintiff’s motion for a TRO. Just prior to the hearing, 12 Plaintiff filed additional declarations. At the time of the hearing, Plaintiff indicated it intends to 13 dismiss the Port District from this case based upon the Port’s representations regarding the scope 14 of its duties in enforcing the security zone. Nonethless, the Port Distirict is currently a party to 15 this action and the Court will address Plaintiff’s claims against the Port District herein. 16 17 Background The Port District is the owner and operator of the B Street Pier and Broadway Pier in San 18 Diego Harbor. The Port District uses the B Street Pier as the primary berth for cruise ships 19 visiting San Diego. When the two berths at the B Street Pier are occupied or otherwise 20 unavailable, the Port District intends to use Broadway Pier to provide auxillary berthing for cruise 21 ships. The Port District recently completed construction of a new cruise ship terminal at the 22 Broadway Pier and expects to welcome the first ship at the new terminal on Wednesday, 23 December 22, 2010. 24 25 26 1 As of the time of the hearing, it appears the Oosterdam will not be berthed at the Broadway Pier on December 22, but will be there on December 26, 2010. 2 27 28 At the hearing, Plaintiff’s counsel argued the Court would not (and likely could not) dictate that the Port District or Coast Guard close public access to the entire on-shore security zone. This is contrary to the arguments made by Plaintiff in its application for a TRO – the practical effect of the relief Plaintiff seeks is to require closure of portions of Harbor Drive including the Broadway intersection. -2- 10cv2565 1 Pursuant to 33 C.F.R. § 165.1108, the following areas are defined as “security zones”: 2 (1) 3 4 (2) 5 (3) 6 All waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is anchored at a designated anchorage within the San Diego port area inside the sea buoys bounding the port of San Diego. The shore area and all waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is moored at any berth within the San Diego port area inside the sea buoys bounding the Port of San Diego; and All waters, extending from the surface to the sea floor, within a 100 yard radius around any cruise ship that is underway on the waters inside the sea buoys bounding the Port of San Diego. 7 § 165.1108(b). Furthermore, “[i]n accordance with the general regulation in § 165.33 of the part, 8 entry into or remaining in these zones is prohibited unless authorized by the Coast Guard Captain 9 of the Port, San Diego or his designated representative.” Plaintiff argues that Defendants are 10 required to enforce the 100-yard security zone around any cruise ship berthing at Broadway Pier. 11 The Broadway Pier is approximately 960 feet long. The Oosterdam is approximately 936 feet. 12 Therefore, the security zone would extend on-shore at least 275 feet, encompassing not only the 13 boardwalk in front of Broadway Pier but also the entire intersection of Broadway and Harbor 14 Drive. 15 Although the same security regulations apply to the B Street Pier, Plaintiff does not 16 challenge the Defendants’ enforcement of regulations at that location. The Coast Guard’s security 17 plan is “sensitive security information” which the Coast Guard and Port District are prohibited 18 from disclosing. 33 U.S.C. § 1226(d); 49 C.F.R. § 1520.3, 1520.5(b), 1520.9, 1520.15; 33 C.F.R. 19 § 105.400(c). Earlier this year, Plaintiff submitted a FOIA request to the Coast Guard, seeking 20 documents showing who has requested permission to enter the security zones in the Port of San 21 Diego, whose request was granted, and whose request was denied. The Coast Guard responded by 22 indicating there were no responsive documents. Both the Coast Guard and the Port District in 23 their papers opposing the TRO have declined to explain exactly how they intend to secure the Port 24 without enforcing the 100 yard on-shore security zone. 25 Legal Standard 26 In determining whether to grant a temporary restraining order or preliminary injunction, 27 the Court applies the preliminary injunction standard articulated in Winter v. Natural Res. Def. 28 Council, Inc., 555 U.S. 7, 129 S.Ct. 365 (2008). A party seeking a preliminary injunction must -3- 10cv2565 1 demonstrate: (1) the likelihood of success on the merits; (2) the likelihood of irreparable harm in 2 the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an 3 injunction is in the public interest. 129 S. Ct. at 374. Injunctive relief is “an extraordinary remedy 4 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 5 375-76. Where the requested injunction goes well beyond maintaining the status quo, and instead 6 mandates action, a heightened standard applies – the court must find that the “facts and law clearly 7 favor” the moving party. Katie A., ex rel. v. Los Angeles County, 481 F.3d 1150, 1157 (9th Cir. 8 2007) (quoting Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994)). 9 Discussion 10 Defendants raise a number of arguments in opposition to the Plaintiff’s application. Upon 11 review, the Court has reservations about Defendants’ mootness and standing arguments. 12 Nonetheless, as explained below, the Court finds Plaintiff has not demonstrated a likelihood of 13 success on the merits of its claim for mandamus and injunctive relief. Furthermore, the likelihood 14 of irreparable harm in the absence of preliminary relief, the balance of equities, and the public 15 interest, all militate in favor of denying a temporary restraining order. 16 A. Likelihood of Success on the Merits 17 Mandamus is a drastic remedy to be invoked only in extraordinary circumstances. Kildare 18 v. Saenz, 325 F.3d 1078, 1084 (9th Cir. 2003). Mandamus is available to compel a federal official 19 perform a duty only where: “(1) the individual’s claim is clear and certain; (2) the official’s duty is 20 nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other 21 adequate remedy is available.” Id. (quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998)). 22 Where the effect of a mandatory injunction is the equivalent of mandamus, it is governed by the 23 same standard. Oregon Natural Resources Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995)). 24 Defendants argue the Plaintiff has failed to establish that the Coast Guard has a nondiscretionary, 25 ministerial duty to enforce a security zone in the manner Plaintiff demands, such that Plaintiff is 26 not likely to succeed on its claim for mandamus and injunctive relief. 27 The regulations provide that the term “security zone” 28 [M]eans all areas of land, water, or land and water, which are so designated by the Captain of the Port for such time as he deems necessary to prevent damage or injury -4- 10cv2565 1 2 to any vessel or waterfront facility, to safeguard ports, harbors, territories, or waters of the United States or to secure the observance of the rights and obligations of the United States. 3 33 C.F.R. § 6.01-5. The Captain of the Port (“COTP”) is a Coast Guard officer who is responsible 4 for enforcing Port safety and security regulations. 33 C.F.R. § 6.01-3. The COTP “may cause to 5 be inspected and searched at any time any vessel, waterfront facility, or security, or any person, 6 article or thing thereon or therein ... and may remove therefrom any and all persons, articles, or 7 things not specifically authorized by him to go or remain thereon or therein.” 33 C.F.R. § 6.04-7. 8 Regulations specific to security zones similarly provide authority to the COTP, who “may 9 remove” any person or vessel from a security zone.” 33 C.F.R. § 165.33(d). The regulation 10 establishing a 100 yard on-shore security zone in San Diego similarly vests discretion in the COTP 11 to permit entry into the security zone. 33 C.F.R. § 165.1108(c)(1). Nothing within these 12 regulations expressly requires the Coast Guard to enforce an on-shore security zone in any 13 particular manner. The applicable regulations demonstrate that the manner in which the Coast 14 Guard enforces the security zone, including allowing individuals or vessels within the security 15 zone, is within the Coast Guard’s discretion. The enforcement of the security zone by the Coast 16 Guard is an executive, law enforcement, function. Therefore, the Court concludes Plaintiff has not 17 shown a likelihood of success on the merits of its claim for mandamus or injunctive relief as 18 alleged. 19 B. Likelihood of Irreparable Harm Plaintiff argues the potential harm of a terrorist attack, and the danger to national security, 20 21 weighs in favor of a TRO. However, as Defendants note, the B Street Pier presents similar 22 security issues and Plaintiff does not seek to enforce the regulation as to that location. 23 Furthermore, cruise ships have been using the Broadway Pier for many years, and Plaintiff has not 24 persuasively shown changed circumstances that justify a TRO. 25 C. 26 Balance of Equities/Public Interest Plaintiff argues a TRO is in the public interest because Defendants’ failure to enforce the 27 on-shore security zone implicates national security. However, Plaintiff’s claim is belied by the 28 fact it has not sought to enforce the regulation as to the B Street Pier. In addition, it would create a -5- 10cv2565 1 tremendous burden on the public if the boardwalk in front of Broadway Pier, extending to the 2 intersection of Harbor Drive and Broadway, is closed to public access for a period of time while a 3 cruise ship is berthed at the Broadway Pier. The potential harm alleged by Plaintiff is purely 4 speculative, and does not justify the relief sought by Plaintiff. 5 6 7 Conclusion For the reasons explained herein, the Court DENIES Plaintiff’s motion for a temporary restraining order and preliminary injunction. 8 IT IS SO ORDERED. 9 DATED: December 21, 2010 10 11 IRMA E. GONZALEZ, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 10cv2565
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