Attorneys: Navy arguments, findings 'divorced from reality'

The Washington Daily News ^ | Monday, December 27, 2004 | BILL SANDIFER

[RepublicanReptile]

Attorneys: Navy arguments, findings 'divorced from reality'

By BILL SANDIFER Staff Writer

Attorneys suing the Navy to stop construction of an outlying landing field in Washington County contend the Navy's account of environmental studies outlined in its last federal court brief is "divorced from reality."

Law teams representing the Charlotte-based firm of Kennedy Covington and the Chapel Hill Southern Environmental Law Center office responded Dec. 20 with a brief discounting Navy contentions that it had "fully complied" with National Environmental Policy Act requirements.

"(T)he Navy paints a different -- but highly sanitized -- version of the process it followed," argues the brief. The document was filed to counter Navy calls for the court to dismiss the case and allow OLF work to continue.

Contending "NEPA demands more," the brief argues federal environmental law "invites the (Navy) to act as a steward and trustee for not only the best interests of the government and its considered action, but for the effects of this on the environment."

Eastern District Chief Judge Terrence Boyle, in issuing his preliminary injunction against the Navy, argued that, as an entity, nature has no voice to speak for itself and must have a surrogate to act in its defense.

"The Navy both failed to act as a steward and shirked its obligation to act objectively and fairly," contends the brief. "This utter disregard for NEPA's requirements muzzled nature's voice to which the Navy is mandated by law to listen."

Based upon that argument, opposition attorneys contend the Navy's motion to dismiss the case should be denied. In addition, the brief asks again for the court to rule in favor of OLF opponents and permanently halt the Navy "until such time as the Navy fully complies with its NEPA obligations." That, in essence, would require the Navy to start from square one, backtracking and proving to the court that its studies are not, as alleged, tainted by political demands that forced the Navy's environmental team to justify selection of the Washington County site, a site that, by Navy benchmarks, doesn't fit.

In its latest court brief, the Navy argues that the court's order is overly broad and halts more than OLF construction. East Coast homebasing of Super Hornet squadrons, the Navy contends, is affected by the order as well. Nonetheless, the first wave of Super Hornets arrived at Virginia's Naval Air Station Oceana in early fall.

"Plaintiffs attack the Navy's homebasing decisions only to the extent the Navy uses that decision as a justification for siting an OLF (in Washington County)," argues the plaintiffs' brief. "As the Administrative Record makes clear and the (Final Environmental Impact Statement) itself implies, an OLF is not required to support Super Hornet training operations for the homebasing decision ultimately made by the Navy."

The Navy has a naval auxiliary landing field near NAS Oceana, NALF Fentress, which serves the same training functions as an outlying landing field but does so in a more congested environment. Noise complaints and lawsuits have plagued the Navy's operations in the Virginia Beach area, prompting the Navy in 2000 to tell residents it would seek to relocate some its operations "precisely because of community concerns over jet noise." That message was contained in a letter written by then-Atlantic Fleet Forces commander, Rear Adm. Robert Natter, and was sent to the Hampton Roads Chamber of Commerce.

Ironically, in the interim, the size of the new fleet and training operations have been scaled down, a change that complicated justification for building a Washington County OLF, according to memos and e-mail exchanges among Navy environmental study team members -- Tiger Team.

As late as summer 2001, the Navy, according to its documents and alleged in the opposing brief, "indicated its early preference for homebasing all (10 Super Hornet squadrons) at Oceana and acknowledged the capability of Oceana and its existing OLF, Fentress, to handle of the Super Hornet squadrons. The memorandum also indicated a preference for developing a new OLF, but admitted, however, that the new OLF was 'only necessary to relieve the community of aircraft noise.'" (OLF and NALF are frequently used interchangeably.)

The brief argues that politics drove the Navy's resulting Super Hornet split-homebasing decision which initially listed two alternatives: 1) Six squadrons in Virginia and four in North Carolina. 2) Eight squadrons in Virginia and two in North Carolina.

The 8/2 vs. 6/4 split would later become a political hot potato at state-Navy OLF panel meetings. Frustration mounted over the Navy's selection of the 8/2 alternative with repeated calls for at least four squadrons in North Carolina.

However, plaintiffs attorneys argue the 6/4 alternative was a straw man, amounting to "nothing more than window dressing."

The brief also argues:

Navy bird findings contained in its environmental impact statements conflict with data included in the same record.

The Navy cited -- but failed to read -- a key bird study it used to make "faulty conclusions" in the FEIS.

The Navy failed to conduct more than casual visits to refuges near the OLF site, calling the visits "patently inadequate."

The Navy drew some conclusions based not on research but on "anecdotal" accounts.

Navy pilots voiced concerns in 2001 about bird-strike issues at the Washington County site, but the Navy failed to focus on such issues until 2003 just prior to selecting the site.

The brief argues such shortcomings, among others, prove the Navy failed the NEPA mandate of a "hard look" at environmental issues -- and asks the court, again, for a permanent halt to Navy OLF plans for Washington County.

[RepublicanReptile]

OLF, NC, PING!

[USNBandit]

"As the Administrative Record makes clear and the (Final Environmental Impact Statement) itself implies, an OLF is not required to support Super Hornet training operations for the homebasing decision ultimately made by the Navy."

I wonder where those Super Hornets are supposed to complete their FCLPs. Fentress is eventually going to get closed. With the new Fleet Readiness Plan the Navy will have to keep more of its pilots deployment ready, not less. How dare the Navy not listen to "nature's voice."

[Publius6961]

Another natural abuse of the original intent.
A thorough review of the arguments when the EPA and the ESA were being proposed.

Those acts were intended for projects which spanned states and was addressed specifically to enable all factors to be considered, NOT "resolved". A finding of considered and overridden by other more pressing reasons (national security, economic devastation, specious and speculative arguments) was totally acceptable.

The environmental Acts were never intended as a tool to extort or to prevent necessary public infrastructure.

[bobjam]

FYI- those squadrons of F-18 Hornets were based for many years at NAS Cecil Field in a remote area of Jacksonville's Westside. Jacksonville residents love the Navy and rarely complained about the fighters (afterall, the sound of jets was the sound of freedom). However, the round of base closures in 1993 brought the closure of NAS Cecil Field (the birthplace of the Blue Angels) and the transfer of those squadrons to the already cramped Norfolk area. The only advantage to moving them there was that it made certain politicians happy. Jacksonville would love to have those squadrons back and spare the spoiled residents up there the agony of listening to men and equipment that protect our freedom.

[oldsalt]

We had a perfectly good NAS for the F-18's, new hangars and all at Cecil Field in Jacksonville,FL with beautiful flying weather, relatively uncrowded airspace, nearby weapons practice facilities,etc

The Feds,in their wisdom closed it as a result of BRAC 95. Stupid move,but what do I know.

[oldsalt]

Great minds think alike....mine is just getting slower.

[69ConvertibleFirebird]

We're trying to get a 10 mile parkway built here, just north of D.C. in ultra-liberal Montgomery County, Maryland. It's been on the Master Plan for 45 years. It gets blocked by some lawsuit or another every time it's tried. Now State Highway has about 20,000 pages of studies and documentation to show that it is perfectly reasonable and environmentally sound. The opposition now scream that it's too much information for them to go through. In other words, you will either be accused of doing too little or complicating it too much, as long as you can't do it. I get so sick of these MIMBYs.

[Tax-chick]

Bird strikes. Oh, the humanity!

[Shellback Chuck]

You should hear the enviro-whackos whine about the LFA project (Low Frequency Active Sonar). You'd think every time they fire it up it kills all the whales in the ocean!

[RepublicanReptile]

This has nothing to do with the birds to me. Geese are not small. If an engine sucks one of those birds into it's engine what do you think will happen? Nothing? I haven't even heard about the sonar project you are talking about, nor does it have any relevency to this subject. If the whales and the sonar were going to bring Jets crashing to the Earth mere miles from my house,then I would care. If whales and sonar were going to bring about the displacement of hundreds of citizens and ruin acres of farmland,then I would care. As for now, I really don't.

[Shellback Chuck]

The connection is, EVERY project the Navy attempts to undertake it attacked environmental extremists in any way possible. The Navy put MILLONS of your tax dollars into various environmental studies in regards to how different weapons systems would have an impact on the ecosystems.

Bird strikes are an inherent danger while flying (I've had it happen). Unless it's sucked into an engine or goes through the cockpit, it usually just makes a hell of a mess. Civilian airports run the same problems with birds, hence ATIS warnings on the field.

The military has been plagued by cutbacks since Reagan left office. The Navy has gone from around 600 ships to about 300. Everybody wants a strong military (well most reasonable people) but no one is willing to give up anything for it.

All it takes is one group of nutbag alarmists to wipe out a major weapons system or facility because of their whining about an endangered snail or a "possible" hazard. Well I got news for ya, every-time a serviceman takes to the air or to the sea or jumps in a tank he faces a "possible" hazard. I would rather give them the best chance available to come back alive than worry about some damn fish or birds.

[Tom D.]

Tax-chick:

I live about 30 miles where they propose to put this thing. The whole deal is that Sen. John Warner, Chairman of the Armed Services Committee and ex-Mr. Elizabeth Taylor (R-Va) wants to base these jets and all of the money that come with them in Virginia and put this "Outlying Landing Field" in northeastern North Carolina.

"What's wrong with that?" you may ask. Let me explain.

Pilots, particularly those who want to get carrier certification, need to practice landing in at night in reasonably dark places. These pilots will be doing what is known as "touch and gos", which amounts to coming making a touchdown, never coming to a stop, taking off, going around, and touching down again, etc.

Remember, this is mostly at night and remember how much noise these planes make. Remember also, that to a very large extent, the farms in this community were hewn out of a wilderness in the 1950's and early 1960's by the current owners and their parents.

I understand that some of these folks stand to get paid some reasonable value for their land, but to a very large extent, one can never be fully compensated for taking something that they created over years of very hard work.

Worse than that is the effect that these planes are going to have on the people and the community that is left. These planes will be flying over school where my kids spent 8 to 10 years. The noise, particularly at night, will devastate that community, all so Sen. Warner can have the money, but not the noise, from these planes in Virginia.

Furthermore, if anyone in the private sector has any ideas about trying to do anything with the land that they have bought and paid taxes on for 50 years, they have to get the government's permission through environmental bureaucrats who know that the land owner is legally entitled to do what he wants, but who also know that they can cause this landowner to spend more than the land is worth fighting them to prove it.

Judge Boyle has been nominated by President Bush [I believe that he was also nominated by President Bush's father, but he was held up in committee] to be a judge on the 4th Circuit Court of Appeals. The Dems have filibustered his appointment and his name is being resubmitted soon. No, Judge Boyle is not a flunky for the environmentalists. He actually believes that Congress makes the laws and that Judges rule accordingly. It is not Judge Boyle who is at fault here. He is only insisting that the Navy follow the rules [smart or dumb] that Congress and the Administration have set. In other words, Judge Boyle has acted like a judge that we say we want.

[USNBandit]

Do you know what the other OLF sites were?

One thing about this article that is complete BS is that the lawyers against the OLF are stating the needs of the Navy. They don't have the foggiest idea what the Navy needs. The Navy needs and OLF to serve the aircraft based at Oceana and NAS Norfolk. That is the truth and there is no way around that. The search for a new OLF is based upon the suburban encroachment around both OLF Fentress and NAS Oceana.

Basing of the Super Hornet has been a huge problem because that aircraft is really loud. For cost savings it makes sense to base the Super Hornet in Oceana at the Navy's only east coast fighter base. This is the unintended consequence of BRAC. The only advantage to basing squadrons in Cherry Point would be to keep the Cherry Point economy going and to capitulate to the anti-jet noise crowd in Va. Beach. If you want to stand up squadrons in Cherry Point it will bring added cost for maintenance infrastructure, simulators, and logistics costs associated with an airframe the Marines don't intend to buy.

[USNBandit]

These planes will be flying over school where my kids spent 8 to 10 years. The noise, particularly at night, will devastate that community, all so Sen. Warner can have the money, but not the noise, from these planes in Virginia.

So, if the Navy put all these airplanes in Cherry Point, would the noise be okay then. What if the Navy made all the jobs at this OLF contract GS jobs? Everything from firefighting, to grounds maintenance, to security. Would that make a difference? I just want to know what the price tag is going to be. The pilots of those airplanes are willing to pay a price and right now that price includes not receiving adequate training so that a few citizens can sleep more soundly.

[Shellback Chuck]

No kidding. I'm third generation military and I was raised on military bases. And yes, I went to schools located near the flight line on several bases. I remember when our base in Misawa got their first F-14's coming through. It was cool as hell. Noise? what noise? all I remember from growing up was how cool the planes were and how I couldn't wait to grow up and work on them!

[Tax-chick]

Thanks for the information, Tom D.! I never liked Senator Warner!

I grew up around Naval Air Stations, so I have trouble understanding people's problems with airplane noise. We never experienced anything else!

[Tom D.]

The Federal Government already owns huge amounts of isolated land along the coast. Let Sen. Warner use land already owned by the government.

Everyone here appreciates the need for pilot training, but in this instance, that odious bastard, Warner, is insistent on keeping all of the goodies and exporting the noise to us.

It is apparent that the Feds have cooked the books so that their "studies" support their foregone conclusion.

Judge Boyle is hardly a raving liberal. Why do you think that he is enjoining the Navy?

[Shellback Chuck]

Did a little research overnight. Would tend to support your point of view now. Warner is an A@@hole.