December 2022 Newsletter

Litigation Update

A lot has happened since our last newsletter especially on the litigation front.

Perhaps most importantly was the order entered on August 2, 2022 in our National Environmental Policy Act (NEPA) case against the Navy brought in conjunction with Washington State.  Judge Jones’s order adopted, in full, Magistrate Creatura’s Report and Recommendation (R&R) finding that the Navy’s Growler expansion EIS and Record of Decision (ROD) had violated NEPA.

The order gave the parties 30 days to agree on the appropriate remedy for the Navy failings or to stipulate to a briefing schedule if we couldn’t agree.  If you remember, in his R&R Magistrate Creatura had strongly urged the parties to engage in good faith efforts to agree on remedies.  Following, the Judge’s order the parties did talk.  Not unexpectedly the Navy took the position that they were absolutely unwilling to discuss any reduction in or relocation of training operations.

In our humble opinion, the Navy absolutely failed to measure up to the good faith effort expected by the Magistrate, and hence by the Judge.  Navy representatives from day one laid down a hard-and-fast line that they weren’t willing to discuss anything which would have limited their expanded EIS flying operations.  All they offered were token changes.  Nothing they suggested would have in any way measurably improved the lives of civilians in the impacted areas or helped address environmental concerns.  Despite the adverse ruling, and the castigating language of the R&R, the Navy acted as if they had actually won the case and didn’t need to compromise.  Since there was no agreement possible, we went back to work exploring remedies before the court.

Interestingly, on October 4, 2022 we received notice from the court clerk that Magistrate Creatura was no longer assigned to our case, “per the direction of chambers.”  We have no way of knowing why the judge removed Creatura from the case.  No doubt the Navy absolutely hated the magistrate’s allusion to them acting like a drunk using a lamp post for support instead of illumination.  Did they have something to do behind the scenes with the magistrate’s removal?  We’ll never know.

COER and the State of Washington filed their remedy briefs on October 21st.  Both asked the court to vacate the deficient EIS/ROD and return operations at NAS Whidbey Island to their pre-EIS.  The Navy’s response was to once again file a motion to be allowed to secretly file documents and meet with the court on the basis that the Judge needed access to “classified” documents that neither the Washington State Attorney General nor COER’s counsel could be allowed to see.  Both COER and the State objected.  COER’s argument was that the Navy was improperly equating their training ability with training location; that is that NASWI was the only place Growlers could possibly train.  [As of this writing we do not yet know how the Judge ruled on this motion or whether he will look at the Navy’s documents in secret.]

Then on November 22nd the Navy filed its actual response to Plaintiffs’ remedy briefs.  The Navy’s Response included long declarations from the Vice Admiral in charge of the Navy’s Pacific air fleet, the Commander of the Pacific Electronic Attack Wing, and the Base Commander.  As expected, the vast bulk of the content of those declarations was about how important the Growler is to national security (again, not the issue).  The implication was that if the judge vacated the EIS and the ROD Growler pilots would go untrained.  Admiral Whitesell even came close to saying that there was absolutely nowhere else that the Growler’s could train.  That claim just isn’t credible.  History shows that, until recent years, El Centro was heavily used for detachment training and that pilots found it superior to both Ault Field and the OLF.  Furthermore, common sense says that if Growler pilots can’t train at NASWI for whatever reason (e.g., earthquake, tsunami, terrorist attack, or if the judge vacates the ROD) that the Navy will nevertheless make sure they are fully and properly trained somewhere else (e.g. El Centro).

The worst part of the Navy’s Response, however, was their obvious intent not to follow the spirit of the Report & Recommendation to do additional studies on the four issues they lost.  Instead, their plan is to submit “additional information” (meaning “contrived excuses”) to beef up the weak excuses the court found unconvincing.  In particular, they absolutely do not want to have to do a supplemental EIS (SEIS) looking at El Centro as an alternative basing location.  But looking at viable alternatives is the essential heart of NEPA.

So we fight on.  This has already been a long, grueling battle.  We knew it would be when we filed suit against the Navy.  They left our community no choice.

The Navy claims it wants to be a good neighbor, but then completely disregards the health, safety and welfare of the citizens of Whidbey Island and the greater Salish Sea region.  Growlers should not be training 200 to 300 feet above people’s homes at all, let alone night and day for hours and days at a time.  The Navy consistently points out how dangerous it is to land a jet on an aircraft carrier, and how only certain outlying fields are safe enough for this training (which, per Navy standards, the Coupeville OLF falls short of in a number of areas).  Yet they say nothing about how dangerous this local practice is for the civilians living underneath it.  Why?  Because they do not care about us!  If they did, this training would take place on military reservations not over civilian communities.  To the Navy we are simply collateral damage!