Several individuals (the birdwatchers) challenged the Navy and the City of Long Beach's decision to reuse the closed Long Beach Naval Station as a commercial marine container terminal. The birdwatchers alleged that the Navy's final environmental impact statement (EIS) was deficient under the National Environmental Policy Act (NEPA)[1] because it did not adequately consider all the environmental effects of the proposal or a sufficient range of project alternatives. Under state law, the birdwatchers alleged that the City of Long Beach violated the state tidelands trust and "contend[ed] that the proposed use [was] a waste[] of public assets and a public gift violation of the California Constitution."[2] The district court dismissed both the birdwatchers' federal and state claims for lack of standing.[3] On appeal, the Navy and Long Beach argued that the claims were moot because the area of the Naval Station in dispute had already been razed in preparation for construction. The Ninth Circuit determined that the claims were not moot and held that the birdwatchers had standing to bring the NEPA claim, but affirmed the district court's dismissal as to the state claims, because the plaintiffs failed to establish taxpayer standing to bring those claims in federal court.

In 1991, the Department of Defense announced the closure of the Long Beach Naval Station and in 1994, the Navy ceased operations at the station. Prior to disposal of military property on closed installations, the Defense Base Closure and Realignment Act (DBCRA)[4] requires the Secretary of Defense to consider redevelopment plans submitted by affected local governments. Under the DBCRA, the local government's redevelopment plan is considered part of the proposed federal action for NEPA purposes.[5] The City of Long Beach developed a plan for a marine container terminal at the Naval Station and in 1996, obtained approval of its environmental impact report--as required by California's Environmental Quality Act[6]--for the project. In April 1998, the Navy and City of Long Beach prepared a joint EIS under NEPA and in May 1998, the Navy issued its record of decision (ROD) approving Long Beach's plan to convert the Naval Station into a commercial marine container terminal.

Several of the structures on the Naval Station qualified for inclusion on the National Register of Historic Places,[7] and areas of the Naval Station served as habitat for several bird species, including two endangered species--the California least tern and the California brown pelican--and the black-crowned night heron, which is protected by the Migratory Bird Treaty Act.[8] The redevelopment plan required destruction of the historic buildings, removal of a ficus tree containing a black-crowned night heron rookery, and dredging of the endangered birds' shallow water habitat. In June 1998, the birdwatchers brought their state and federal claims challenging the redevelopment plan in district court, which dismissed them for lack of standing.[9] By the time the birdwatchers filed this appeal in May 1999, the historic buildings and bird habitat had been destroyed.

The Navy and Long Beach argued that the appeal was moot because the buildings and habitat were already destroyed in preparation for construction of the marine container terminal. However, the Ninth Circuit has "repeatedly emphasized that if the completion of the action challenged under NEPA is sufficient to render the case nonjusticiable, entities 'could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine.'"[10] Defendants have a heavy burden to establish mootness in a NEPA case. The Ninth Circuit determined that the defendants failed to meet the burden in this case. If the Navy and Long Beach were required to perform additional environmental review, they could consider new alternatives to the current plan and develop mitigation measures for the damage to the birds' habitat. Thus, the court held that "[s]ince effective relief may still be available, the demolition of the Naval Station was insufficient to render the case moot."[11]

The Ninth Circuit next concluded that the birdwatchers satisfied Article III standing to bring their NEPA claim. The birdwatchers alleged that they suffered an injury in fact because they regularly visited the bird habitat at the Naval Station, and after the station was closed to the public, they continued to observe the birds from areas adjacent to and outside the station. The Navy argued that the birdwatchers could not establish standing because they had no legal right to enter the closed station or watch birds on station property from adjacent lands. However, the Ninth Circuit has "never required a plaintiff to show that he has a right of access to the site on which the challenged activity is occurring, or that he has an absolute right to enjoy the aesthetic or recreational activities" to establish standing.[12] The court held that observing and enjoying the bird habitat from adjacent land was sufficient for the birdwatchers to establish a concrete harm. The Navy also argued that because the birdwatchers did not show harm to the birds, there was no injury in fact. Rejecting this argument, the Ninth Circuit stated that "[w]hether or not the birds might be happier in some other rookery is simply beside the point"[13]: The relevant showing is injury to the plaintiff--not injury to the environment. Further, the birdwatchers had established causation and redressability because "to establish standing, the birdwatchers need not show that the revised EIS would result in the abandonment of the plans to build the marine container terminal."[14] Therefore, the Ninth Circuit held that the birdwatchers had standing to bring the NEPA claim.

As to the state claims, the birdwatchers contended that they had standing under section 526(a) of the California Code of Civil Procedure,[15] which confers taxpayer standing to "assert state law claims for waste of government funds, improper public gifts, and misuse of tidelands trust assets."[16] However, standing under state law does not confer standing in federal court for state claims; a plaintiff must satisfy Article III standing. The Ninth Circuit determined that the birdwatchers failed to establish taxpayer standing because they did not make a sufficient showing of a direct injury caused by the expenditure of tax dollars. The birdwatchers argued that the state law right to sue is sufficient to establish standing. The court agreed that if section 526(a) had provided for monetary relief, Article III standing may be satisfied, but because only injunctive relief was available under the section, no pocketbook injury could be established. Thus, the Ninth Circuit reversed the district court's dismissal of the NEPA claim and affirmed the dismissal of the state law claims.