The Ninth Circuit Court of Appeals affirmed the Coast Guard's security zone for the Superferry (posted earlier here ). In Wong v. Bush (opinion available here), the Ninth Circuit upheld the Coast Guard's security zone created to protect the Superferry in Nawiliwili Harbor on Kauai.
Several Superferry protestors challenged the Coast Guard's security zone as violative of their First Amendment rights, the National Environmental Policy Act (NEPA) and the Coast Guard's security zone regulatory authority.
The Ninth Circuit, in cursory fashion, found the protestors to have standing to assert all of these claims and found them to be not moot (both procedural defenses which could have ended court's inquiry and caused summary rejection of protestors' arguments).
The Court found the security zone to be a reasonable time, place, manner restriction on speech, permissible under the First Amendment. It was content neutral, narrowly tailored and left open alternative channels of communication.
The Coast Guard has the power, under NEPA, to categorically exclude certain federal actions from the requirement to conduct an environmental assessment and/or environmental impact statement. As such, the protestors could not challenge the lack of an environmental assessment or consideration of different alternatives when the entire action was excluded from NEPA.
Finally, the Court held that the statute giving the Coast Guard authority to create security zones (50 U.S.C. 191) was not exceeded by the Superferry Security Zone.
My fellow Hawaii blawggers (Robert Thomas and Charley Foster) have posted their analysis here and here.
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