Birdwatchers can legitimately state a claim of injury and therefore have standing to sue the Navy under the National Environmental Policy Act over the destruction of bird habitat on the former site of the Long Beach Naval Station, the U.S. Ninth Circuit Court of Appeals has ruled. However, the court also held that the birdwatchers do not have standing to sue as California taxpayers. Among other things, the court ruled that the birds themselves need not have been harmed by the Navy's action so long as the birdwatchers' activity of watching the birds had been disrupted. A group of individuals from Long Beach and Lakewood sued Long Beach and the Navy. The individuals challenged the environmental impact statement for the reuse plan of the Long Beach Naval Station after the based was closed in 1994. The EIS evaluated four alternatives: a marine container terminal, an auto terminal, an institutional campus, and a "no project" alternative. Birdwatchers and other alleged that the EIS was inadequate, charging that the city and the Navy had pre-determined that a marine container terminal should be built and leased to the Chinese Overseas Shipping Company. They were opposed to the reuse plan because it called for the demolition of World War II-era buildings designed by early African-American architect Paul Williams, as well as the dredging of 26 acres of shallow water habitat used by two federally endangered species, the California least tern and the California brown pelican. In addition, a large ornamental ficus tree had rookeries used by the black-crowned night heron, which is protected by the Migratory Bird Act of 1918 and had been classified as a "California special animal" by the state Department of Fish & Game. In addition to the NEPA lawsuit, the birdwatchers sued as California taxpayers, charging that the City of Long Beach had violated the state tidelands trust and that the proposed use was a waste of public assets and a public gift that violated the California constitution. In the summer and fall of 1998, the birdwatchers unsuccessfully sought a temporary restraining order in federal court in Los Angeles, and a motion for a preliminary injunction. In late 1998 and early 1999, the structures, the ficus, and the habitat were destroyed as part of the reuse project. During the appeal, Long Beach and the Navy argued that the litigation was moot because all the resources in question had been destroyed. But a three-judge panel of the Ninth Circuit disagreed with that argument, noting that "the burden of demonstrating mootness is a heavy one." "[I]f required to undertake additional environmental review, the defendants could consider alternatives to the current reuse plan, and develop ways to mitigate the damage to the birds' habitat by, for example, creating new nesting and foraging areas on the land that was formerly the station or utilizing other nearby land for mitigation purposes," the court added. The Navy also contended that the birdwatchers did not have standing to file the lawsuit regarding the EIS because they had not suffered injuries that could be redressed by court action. But the Ninth Circuit ruled in favor of the birdwatchers, concluding that they had been injured because their birdwatching activity had been impeded. "The birdwatchers' averments that they had visited the affected area in the past and that the defendant's challenged activity would impede their ability to appreciate and the use the specified area are sufficient to establish that they have suffered an injury to a concrete and particularized interest," the court wrote. In addition, the court rejected the Navy's argument that the birdwatchers did not have standing because, in pursuit of their birdwatching activity, they did not have the legal right to trespass on the grounds of the closed station or to stand adjacent to the station and gaze over the property line to observe the birds in their habitat. The court did not address the trespass question, but the judges overturned the trial court in ruling in favor of the birdwatchers on the second point. "If an area can be observed and enjoyed from adjacent land, plaintiffs need not physically enter the affected area to establish an injury in fact," the court held. The court also ruled that, even though the habitat had been destroyed, the legal test of "redressability" had also been met. (An injured party must also prove that the injury is redressable in order to have standing to sue.) "[B]ecause they are seeking to enforce a procedural right under NEPA to protect their concrete interests," the court wrote, "they have standing to challenge the adequacy of the Navy's FEIS even though they cannot establish that a revised EIS would result in a different reuse plan for the Naval Station." The Ninth Circuit ruled against the birdwatchers' contention that they had standing to sue as California taxpayers.. The court said the birdwatchers had not established the connection between "the taxpayer, the tax dollars, and the allegedly illegal government activity" that is required under federal case law. The Case: Cantrell v. City of Long Beach, No. 98-56940, 01 C.D.O.S. 1018, 2001 Daily Journal D.A.R. 1351 (issued February 5, 2001). The Lawyers: For Cantrell: Richard I. Fine, (310) 277-5833. For City of Long Beach: Dominic T. Holzhaus, city attorney's office, (310) 570-2212, and M. Katherine Jenson, Rutan & Tucker, (714) 641-5100. For U.S. Navy: John K. Rubiner and Eliot Krieger, U.S. Attorney's Office, Los Angeles, (213) 894-2434.