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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.
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:
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.
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