Welcome to our December newsletter, and do we have news!
THE REPORT AND RECOMMENDATION
Oral arguments in our NEPA Action with the State of Washington against the Navy were held the morning of October 26, 2021. For those of you who haven’t heard the recording or want to go back and hear it again, the links can be found on COER’s website at:
https://
Well, we never expected a decision before next year, but on Friday afternoon (December 10, 2021) Federal Magistrate J. Richard Creatura shocked our world when he filed his Report and Recommendation[1] determining that the Navy’s 2019 decision authorizing the Growler expansion on Whidbey violated the National Environmental Policy Act (NEPA). For the first time in all the generations that have battled the Navy jet menace on Whidbey Island and in the Salish Sea region, THE PEOPLE WON A ROUND IN COURT!
Navy Failures Draw Fire!
Judge Creatura did not agree with COER and the State of Washington on all of the issues presented to him. But he did specifically find that the Navy’s Growler EIS was arbitrary and capricious, and therefore violated NEPA, with regard to four big areas: (1) it failed to adequately examine El Centro naval air station as an alternative to Whidbey Island; (2) it failed to examine how Growler training was impacting childhood learning at nearby schools; (3) it severely under-reported Growler fuel usage and greenhouse gas emissions; and (4) it failed to conduct species specific analysis of Growler impacts on bird species.
Furthermore, Judge Creatura was scathing in his remarks about the Navy. He likened the Navy to a drunk who uses a lamppost “for support, not illumination.” In other words, he was telegraphing that it was clear that the Navy, in choosing to put all of its Growlers on Whidbey, had made that decision in advance of its EIS and then post facto used the EIS to try to support its decision. NEPA requires just the opposite.
Rebukes like Judge Creatura’s are rarely if ever seen in Court decisions. His strong words, gratifying as they are given the Navy’s history of dismissing the public’s concerns about their plans, raises many questions. Why was the judge so unusually harsh toward the Navy in his Report? Was he sending a bigger message and, if so, to whom? Whatever his motives, this warning shot across the Navy’s bow is one that will be heard loud and clear by our political leaders as well. Washington’s Attorney General, Bob Ferguson, was the first leader to come to our aid joining us in this lawsuit. The Sound Defense Alliance has been making great progress meeting with our federal congressional delegation and providing alternatives to keep the base open while moving the Growlers where they will do no harm. That work has surely gotten a boost from Judge Creatura’s words and findings. We hope that Congress
will hear him, will listen to us, and will act to bring the Navy back under well-reasoned and effective civilian control.
What Does It All Mean?
The Report is a long document, and without the benefit of a law degree may be confusing. We’ll try to make it a bit more understandable in the rest of this newsletter.
First, Judge Creatura is a federal magistrate.[2] He assists Judge Jones who is the Article III judge (a judge appointed by the President and confirmed by Congress) and the judge of record in our case. Magistrate Creatura was the jurist who read all of the pleadings, reviewed the administrative record in great detail, and held the oral arguments in our case.
Magistrate Creatura’s Report to Judge Jones contains his findings based on the record in the court and his suggestions as to how Judge Jones should rule in the case; it is not a final decision of the court — only Judge Jones can enter that. So this case is not over quite yet.
The parties now have 14 days[3] from December 10th to file objections to Magistrate Creatura’s findings (although they are negotiating to lengthen this period). We anticipate that the Navy will object to the four issues they lost, and COER will object to the issues we lost. This is standard legal practice. It is possible that Judge Jones will decide to hold another round of oral arguments, or additional briefings, but it is much more likely that he will adopt Magistrate Creatura’s recommendations, especially given Magistrate Creatura’s strong rebuke of the Navy.
Scheduling Deadlines
There is another scheduling deadline in the Report we have been asked about: the 30 day time period in the first paragraph of the Conclusion. This 30 day period doesn’t begin to run until after Judge Jones issues his final ruling in the case. It pertains to Magistrate Creatura’s recommendation to adopt a suggestion made by COER’s attorney, David Bricklin, during oral arguments. When Creatura asked about remedies if he ruled in COER’s favor, Bricklin suggested that the litigants should get together and try to agree on a set of remedies so that the community would get relief but the Navy would still be able to train. This was a reasonable response, one which Magistrate Creatura obviously agreed with.
Remedies in NEPA suits against the military are tricky and confusing. Courts are resistant to telling the military how to plan or train with regard to National Defense issues. Under NEPA the military must do a proper analysis before making a decision that might impact civilians or the environment – which the EIS process is intended to assure. However, even if the Navy had done a proper EIS and it showed that they shouldn’t base the Growler at NASWI, they could still do it anyway. So the court is essentially limited to making the Navy do a proper EIS. What the litigants will be discussing in the 30 day period is whether they can agree as to how much training the Navy can do while it does its new EIS on the issues it lost. If the litigants cannot agree, then they will brief the court and Judge Jones will decide.
A Catch-22? — Not Quite!
This of course leads to the obvious question: if the Navy can ultimately do whatever it wants, why make them do a proper EIS at all? This enters the realm of politics. The EIS process is meant to give policy makers (Congress) the ability to look at the decisions being made by the military and other government agencies in light of all the facts and impacts. In our case, if a proper EIS is done, and it shows that Whidbey is a bad location for the Growlers, even if the Navy wants them here, it gives our political leaders the opportunity to say “wait a minute, this is a bad decision and we won’t fund it!”
COER has always recognized that ultimately this battle with the Navy has to be won in the political arena, not in court. All of our litigation to date, in addition to making the Navy follow the law, has been to spotlight the Navy’s transgressions to our political leaders. Magistrate Creatura’s findings and his stern rebuke of the Navy can only be seen as a like message to our political leaders, especially that basing the Growlers on Whidbey needs to be rethought. That’s why the issue we won with regard to El Centro, and alternatives in general, is so important. We all know there are better locations for the Growler. The Navy will now have to look seriously at alternatives when it revises its EIS. And our congressional delegation must make sure that analysis is valid.
COER Is Here For The Long Haul
COER has been fighting the Navy since 2010 and will continue to hold the Navy to account. Magistrate Creatura’s findings were a huge win for us, one which will have major political ramifications. This decision gives all of the various groups fighting the Navy a new tool in their political efforts. It sends a clear message to the politicians and government leaders. Communities around the country will sit up and take notice. The Salish Sea is not the only place where military aviation is harming civilians and the environment. The federal government has a huge problem, and it knows it. It’s time Congress came up with a solution. And that’s where all of you will come in. When the call for political action is made, respond and get involved.
The Report in its entirety can be found on COER’s website at: https://
Kudos To All Of You!
Now we would like to take this opportunity to thank everyone involved in this decades-long fight against military training over our homes, schools, businesses and our precious but fragile Island, Salish Sea and Olympic Peninsula environments. As far back as 1965 the Island County Commission objected to the Navy basing jets here[4]. Whidbey Islanders for a Sane Environment (WISE) in the 1990’s mobilized residents and won concessions from the Navy via a “gentlemen’s agreement.” Unfortunately the Navy went back on its word to WISE when it became convenient for them. Others, including COER, have sued the Navy. With the advent of the Growlers many groups formed around the region in opposition, many of whom later formed the Sound Defense Alliance (SDA) of which COER is a proud founding member. To all of you, and to everyone who has ever written a letter to the editor, who has spoken or written to one of our government leaders, who has participated in a demonstration, or asked hard questions at one of the Navy’s EIS dog and pony shows, or who has made a donation to one of these groups, thank you! We are all part of this David and Goliath struggle together and we would not be here today without you, your courage and your persistence. Keep the faith; when the People speak loudly enough government listens. And we are speaking loudly!
If you are able, please consider making a donation to COER Charitable. This NEPA lawsuit and all of our legal activities have been extremely costly and we aren’t finished yet. Without your financial assistance none of this would be possible.
[1] Hereafter referred to as the “Report.”
[2] To avoid confusion we will refer to Judge Creatura as Magistrate Creatura.
[3] This is the 14 day period in the final paragraph of the Report.
[4] Yes, that’s right, before the Navy started coopting local government, the BOICC opposed jets on Whidbey. We have the newspaper articles to prove it!
Thank you for your efforts to bring some peace and quiet to our part of the state. The fact that it is at time not possible to use the Deception Pass state park is very troubling to me.
The Navy should locate this facility in an uninhabited area as the health and well being of what they are training to protect are being compromised by their actions.