The Right To Flight; The U



The Right To Flight; The U.S. Navy’s Legal Battle To Build an Outlying Landing Field in North Carolina.

by

Steve Dellies

Master of Public Administration

University of North Carolina at Wilmington

December 2005

Table of Contents

Table of Contents i

Acronyms ii

Abstract 1

The Case… 1

Fighting Words 1

The Fight Begins 3

Legal Aspects 7

Sources of Conflict 14

Lesson Learned 17

Appendix A – Homebase Siting Locations 21

Homebase Sites 21

Appendix B – OLF Siting Locations 22

Outlying Landing Field (OLF) Sites 22

Appendix C – Area Map 24

Appendix D – OLF Siting Map 25

Appendix E – Historical Timeline 26

Appendix F - REFERENCES 29

Acronyms

APA Administrative Procedures Act

BAM Bird Avoidance Model

BASH Bird/Aircraft Strike Hazard

BGEPA Bald and Golden Eagle Protection Act

CEQ Council on Environmental Quality

CZMA Coastal Zone Management Act

DOD Department of Defense

EA Environmental Assessment

EIS Environmental Impact Study

EPA Environmental Protection Agency

ESA Endangered Species Act

FCLP Field Carrier Landing Practice

FONSI Finding of No Significant Impact

FRS Fleet Replacement Squadron

FWS Fish and Wildlife Service

LUP Land Use Plan

MBTA Migratory Bird Treaty Act

MCAS Marine Corp Air Station

MOA Military Operating Area

NAS Naval Air Station

NEPA National Environmental Protection Act

NM Nautical Mile

NOI Notice of Intent

NWR National Wildlife Refuge

OLF Outlying Landing Field

SEIS Supplemental Environmental Impact Study

SELC Southern Environmental Law Center

Abstract

The U.S. Navy is embattled in a legal fight with the Southern Environmental Law Center (SELC) over the creation of a new Outlying Landing Field (OLF) to train it’s A/F-18E/F Super Hornet pilots. The SELC, representing the National Audubon Society, Defenders of Wildlife, and the North Carolina Wildlife Federation in the case against the Navy, filed suit in the US District Court for the Eastern District of North Carolina. Following the District Court decision to impose a temporary injunction against OLF activities, the Navy filed an appeal with the Fourth Circuit Court of Appeals, which ruled that the Navy failed to conduct a "hard look" and must undertake further environmental study. To continue to pursue an OLF at the proposed site, the Navy must now complete a Supplemental Environmental Impact Statement (SEIS) to address the environmental issues. This paper reviews the historical events in this case, isolates the legal aspects involved, identifies the sources of future conflict between the Navy and environmental organizations and notes lessons to be learned for the Navy, the environmental organizations and local governments.

The Case…

Fighting Words

In June 2000, the Navy published a Notice of Intent (NOI) for the basing of 144 new fighter aircraft as part of an upgrade program to modernize their fleet. These aircraft constitute a total of 10 fleet squadrons, with 12 aircraft each, and one Fleet Replacement Squadron (FRS), which is composed of 24 aircraft. In the decision process for basing these aircraft, the Navy attempted to address two fundamental issues; 1) where to permanently base the aircraft and 2) where to conduct continuation pilot training. Although the lawsuit brought by the SELC does not directly address the Navy’s permanent basing requirements, basing is germane to this discussion because it drove the Navy’s requirement for, and location of, the Outlying Landing Field (OLF), which is at the heart of this dispute.

The Navy began its search for homebasing alternatives by considering 77 airfields along the East Coast that were capable of supporting the Super Hornet aircraft. Using specific selection criteria, a two-stage screening process was used to identify those installations considered most suitable for homebasing. Of these airfields, 57 were eliminated during the initial screening and seventeen more were eliminated in the second screening. The three airfields that remained were:

1. Naval Air Station (NAS) Oceana, Virginia Beach, Virginia

2. Marine Corp Air Station (MCAS) Cherry Point, Havelock, North Carolina

3. Marine Corp Air Station (MCAS) Beaufort, Beaufort, South Carolina

Of these three, NAS Oceana was the only base to meet all the Navy’s criteria. The other two fell short because they did not support unrestricted Field Carrier Landing Practice (FCLP) operations.

FCLP operations are multiple simulated aircraft carrier landings conducted at an airfield and used to reduce training risks to pilots while practicing these type landings. Aircraft carrier landings are a perishable skill and thus need to be accomplished periodically in the aircraft, versus being accomplished in a simulator. The number of FCLPs required for each pilot is determined by the length of time that has elapsed since the pilot's last landing on a carrier. To simulate normal carriers operations, a majority of FCLPs are conducted at night. In the Environmental Impact Study (EIS), the Navy states, “The ability to conduct FCLP at the homebase is preferred because it minimizes overhead costs and maximizes training time. The majority of FCLP operations are conducted at night, thus limiting available training time to periods of darkness, which vary seasonally. Therefore, if unrestricted homebase FCLP operations are not feasible, a remotely sited, 24-hour operationally capable OLF must be available.”[1] Because of this requirement, any homebasing option that involves MCAS Cherry Point or MCAS Beaufort will require an OLF to conduct the FCLP operations. In addition, because of noise issues at NAS Oceana caused by urban encroachment around the airfield, the Navy would like to consider OLF operations for that base as well.

In the August 2002 draft EIS, the Navy identified eight different permanent basing possibilities using the three specified airfields. (See Appendix A). Of the eight alternatives, all but one required the construction of an OLF. (Alternative 1, basing all the aircraft at NAS Oceana, does not require an OLF, but it is desired by the Navy to mitigate noise impacts in the Virginia Beach area.). Due to this requirement, the EIS also provided a list of six OLF locations the Navy was considering to support these basing alternatives. (See Appendix B) Of the eight possible basing plans described in the EIS, the Navy preferred two of the alternatives; 1) homebase six fleet squadrons and the FRS at NAS Oceana and four fleet squadrons at MCAS Cherry Point (Alternative 4A), or 2) base 8 fleet squadrons and the FRS at NAS Oceana and two fleet squadrons at MCAS Cherry point (Alternative 6). For both of these alternatives, the preferred OLF location is Site C in Washington County, North Carolina.

The final EIS was released in July 2003 followed shortly afterwards by the Navy’s announcement of their decision to go with Alternative 6: site 8 fleet squadrons (96 aircraft) and the FRS (24 aircraft) at NAS Oceana, two fleet squadrons (24 aircraft) at MCAS Cherry Point and construct an OLF at site C. This decision was the beginning of the ongoing legal battle.

The Fight Begins

Preliminary Injunction. In January 2004, the SELC, on behalf of the National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife, along with Washington and Beaufort counties, filed suit in the US District Court for the Eastern District of North Carolina. The motion for injunction that was filed requested the court prevent the Navy from “engaging in any further activity associated with constructing an Outlying Landing Field (OLF) in Washington and Beaufort, including but not limited to land acquisition, site preparation, design and construction…until trial upon the merits”[2]. The SELC laid out their case based primarily on three federal acts: 1) the National Environmental Protection Act (NEPA), 2) the Administrative Procedures Act (APA) and 3) the Coastal Zone Management Act (CZMA). Judge Terrence Boyle granted a preliminary injunction in April 2004, ruling that the

“Plaintiffs’ Motion establishes that injunctive relief is appropriate in this case. Plaintiffs are entitled to issuance of a preliminary injunction halting further development of an OLF at Site C [Washington and Beaufort Counties] as set forth in the Motion because (1) the balance of hardships tips decidedly in favor of the requested injunction because of the irreparable harm to be suffered by the environment, the Counties and their citizens; (2) Plaintiffs have not only shown that “grave and serious” questions regarding their claims under NEPA and the CZMA exist, but have established a likelihood of success on all claims; and (3) the public interest favors the issuance of the injunction.”[3]

Following the decision, the Navy requested the US District Court to grant a stay of the injunction, but the request was denied that October. Following the unsuccessful attempt to have the District Court issue a motion to stay, the Navy filed an appeal with the 4th Circuit Court of Appeals to get a stay on the preliminary injunction, which was granted in January 2005. The Navy immediately condemned the land for the proposed OLF and proceeded with planning activities. However, their efforts were soon thwarted again.

Permanent Injunction. In response to a Memorandum of Law in Support of Motion For Summary Judgment[4] filed by the SELC in the US District Court for the Eastern District of North Carolina in November 2004, Judge Terrance Boyle granted a permanent injunction against all OLF-related activities. In SELC’s motion, they sought a permanent injunction against the navy based on six points relating to NEPA and one related to CZMA:

1. “The Navy violated NEPA by breaching the basic trust imposed upon it by NEPA, that of fairly and objectively considering a full range of available alternatives, and instead “reversed engineered” to a predetermined and politically motivated objective…

2. The Navy violated NEPA by failing to take the required “hard look” at the environmental impact of development of an OLF at Site C…

3. The Navy violated NEPA by failing to take the required “hard look” at the cumulative impacts associated with development of an OLF at Site C and the establishment of additional [Military Operating Areas] MOAs in Eastern North Carolina…

4. The Navy violated NEPA by failing to provide adequate mitigation measures in connection with development of an OLF at Site C…

5. The Navy violated NEPA by using an inappropriate methodology for determining the wetlands presence on proposed OLF sites…

6. The Navy violated NEPA by failing to prepare a supplemental EIS (“SEIS”)…

7. The Navy violated CZMA by failing to make a consistency determination regarding the Beaufort Land Use Plan.”[5]

In his judgment, Judge Boyle stated,

“NEPA demands more. It ‘invites the agency 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 action on the environment.’…The Navy has not only refused NEPA’s invitation, but violated its letter and spirit through an orchestrated reverse engineering project to reach its prejudged political decision…Plaintiffs are therefore entitled to issuance of a judgment … permanently enjoining further actions by the Navy … including specifically construction of an OLF at Site C, until such time as the Navy fully complies with its NEPA obligations.”[6]

Appeal. In July 2005, the 4th Circuit Court began hearing arguments regarding the appeal of the permanent injunction. Although the court agreed that the Navy’s EIS was deficient, it did not believe that the Navy was “contemptuous”. In its September 7, 2005 ruling, the court stated that the Navy’s SEIS (begun in June 2005) was begun in good faith and that they trusted the Navy would “proceed with a hard look and honest assessment of the environmental impacts and, more importantly, with an understanding that those impacts may bear on the actual decision and not serve simply to ratify foregone conclusions.”[7] The court also recognized that there were some activities that the Navy could still engage in while they were completing the SEIS that would not cause harm to the citizens or environment and that the trail court went too far in “second guessing” the Navy. Specifically, the court stated:

“Indeed, the five activities we have considered do not include cutting even a single blade of grass in preparation for construction. We therefore order that on remand, the district court should modify the injunction to allow the Navy to pursue the following activities while completing the SEIS:

(1) a site-specific Wildlife Hazard Assessment and [Bird Aircraft Strike Hazard] BASH plan at Site C;

(2) efforts preliminary to land acquisition at Site C - property surveys and appraisals, title searches, relocation surveys, and hazardous material surveys - and, where necessary as part of these efforts, the obtaining of temporary easements and rights of entry onto land owned by private individuals;

(3) land purchases at Site C from willing sellers, with the power of condemnation usable only with the seller’s consent where necessary to clear title or fix a price;

(4) architectural and engineering work necessary for planning and design of an OLF at Site C;

(5) application for permits necessary to construct and operate an OLF at Site C.”[8]

Therefore, in its decision, the Court of Appeals ruled,

“We thus agree with the trial court that the Navy must undertake further environmental study, but we require that court on remand to narrow the injunction to permit the five specific activities that we have detailed. The judgment of the district court is therefore affirmed in part; vacated and remanded with instructions in part.”[9]

The Navy must now complete their SEIS to address the environmental issues at stake if it decides to proceed with an OLF at the proposed Site C.

Legal Aspects

In the Memorandum of Law used to obtain the permanent injunction, six of the seven specific challenges the SELC sited were based the NEPA [Section 102 (2)(c), (Environmental Impact Statements)] which includes the regulations adopted under NEPA by the Council on Environmental Quality (CEQ); specifically, Title 40 CFR, Protection of the Environment (1500-1508). Their remaining challenge was based on the CZMA and the navy’s disregard of the Beaufort Land Use Plan. The following paragraphs give further explanation as to how these specific acts are applied in this case.

National Environmental Protection Act (NEPA). Since the majority of the case is based on NEPA, it is appropriate to begin with the basics of this act. NEPA was enacted in 1969 “to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”[10] The intent of NEPA is to require all federal agencies to consider the environmental consequences of federal actions. It requires that certain procedural steps be taken prior to the initiation of any project to assist the decision makers in considering the environment and informing the public of the project’s scope and potential environmental impacts. However, the act is limited to being procedural; NEPA only requires that federal agencies have procedures in place to “take a hard look” at environmental impacts. The act does not require federal agencies to choose the most environmentally friendly option. Historically, the courts have been very lenient toward the federal agencies when it comes to NEPA. In most cases, a court will reverse an agency's decision under NEPA only if the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.

There are specific requirements that federal agencies must comply with regarding NEPA and CEQ regulations. Under these acts, federal agencies are required to consider:

• reasonable alternatives to the proposed action

• the direct impacts of each alternative (including the proposed one

• the indirect impacts and

• the cumulative impacts of the proposed action with other nearby or similar actions

NEPA and the CEQ regulations also require public notice and an opportunity for comment in the NEPA process. The CEQ Regulations state, "NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."[11]

Under NEPA, an Environmental Assessment (EA) or EIS is required to identify and consider cumulative effects as well as individual effects. Specifically, "for each alternative, estimate the direct, indirect, and cumulative environmental effects, including the effectiveness of the mitigation measures, that would result from implementing each of the alternatives, including the no action alternative. Also, identify any additional mitigation measures that may be required, such as measures common to all alternatives."[12]

Thus, whenever a suit is filed in regards to NEPA violations, the court inquires into whether an EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences."[13]. The court must then make a "pragmatic judgment whether the EIS' form, content, and preparation foster both informed decision making and informed public participation."[14] In this case, both the District Court and the 4th Circuit Court found that the Navy’s EIS was lacking. However, unlike the District Court, which issued an injunction, the final judgment from the 4th Circuit Court allowed the Navy to move forward with specified actions and required them evaluate all of the environmental impacts of the OLF construction.

As noted above, NEPA requires an EIS to include a review of the environmental impacts from all reasonable alternatives. In this case, the Navy has the burden of developing and analyzing reasonable alternatives that will meet the criteria of their proposed alternative. The single most damning aspect of the Navy’s counter argument was its admission that it “reverse engineered” the EIS to select Site C. Although there were six OLF alternatives considered, they were all based on a very narrow set of criteria and Site C seems to have been selected before the EIS was completed. The SELC successfully argued that an appropriate range of alternates was not considered (e.g. locations in Virginia). This argument can be supported by Headwaters, Inc. v. Bureau of Land Management, 914 F. 2d 1174, 1180-81 (9th Cir. 1990) which stated that an agency's consideration of alternatives is adequate “if it considers an appropriate range of alternatives, even if it does not consider every available alternative.”[15]

Another aspect of NEPA that hurt the Navy’s case is the consideration of cumulative environmental impacts. The SELC successfully argued that the Navy did not consider the cumulative environmental impacts that occurred because of the request for a MOA in conjunction with the construction of the OLF. The failure to consider the impacts were echoed in the 4th Circuit Court’s judgment:

“The critical omission here is the failure to discuss the potential cumulative impacts of building an OLF at Site C. The Navy asserts that this omission is "reasonable," since "the potential cumulative impacts at Site D were determined not to be significant, and the location of Site C is further away from the Mattamuskeet MOA than Site D…We find this argument to be problematic. These shortcomings cast doubt upon whether the Navy has fully comprehended the impacts of its actions in isolation, let alone in combination with others. Only when the Navy fully investigates and acknowledges both will it satisfy NEPA.”[16]

Throughout the legal battle, the courts have continued to uphold the fact that the Navy failed to take a “hard look” at the environment during the EIS process required by NEPA. The following are five specific findings of deficiency by the 4th Circuit Court of Appeals[17]:

• “The Navy's site investigation and visits were so limited that they did not provide a meaningful opportunity for study or observation.” The Navy conducted a month-long radar study and undertook various site visits to Site C to determine the impact on birds in the NWR. Based on these limited observations, the Navy concluded that the birds primarily stay within the confines of the NWR and so Site C would minimally impact waterfowl. The court specifically stated, “In short, the site visits never developed into the careful investigation that a "hard look" contemplates.”

• “Absent a more comprehensive investigation of bird concentration and foraging patterns, the Navy could not make supportable conclusions about bird-aircraft collisions.” The Navy used two computer models to study the risk of birds striking aircraft in the area of the NWR, 1) the Bird Avoidance Model (BAM) and the Bird BASH. Both of these models are routinely used by the military to assess the risk from birds. In the EIS, the Navy acknowledged that reviewing the results of the BAM was simply a first step in the analysis, yet it failed to do anything more. Several wildlife agencies expressed concern about the Navy basing its decision on these models because they rely on historical data. Yet, the Navy did nothing else to investigate this risk. This was critical considering the proximity to Pocosin Lakes and the severe risk posed by birds for half of the year at Site C.

• “The Navy’s cursory review of relevant scientific studies, however, further illustrates its failure to take a hard look at the environmental impacts of an OLF at Site C.” The court found that the Navy’s literature view was lacking, especially the noise studies conducted. The Navy acknowledged that the response to noise is species-specific, yet it did not include species-specific affects in the EIS. In particular, several studies demonstrate that snow geese are susceptible to aircraft disturbance, yet the Navy placed little weight on the studies. One such study concluded that, given the aircraft type and flight pattern, the Super Hornet aircraft have the potential to flush snow geese up to five miles away. Even with this evidence, the Navy concluded there was a minimal hazard at Site C.

• “In this case, the Navy has provided only the most cursory factual basis for its comparisons, to the extent it has offered any at all. The Navy relied on the environmental effects of aircraft overflights at several existing military facilities to reach its conclusion that an OLF at Site C would have minimal impact on tundra swans and snow geese.” For the EIS, the Navy used three existing facilities to use as a comparison for the environments impact of the aircraft; 1) the Dare County Bombing Range, 2) the Piney Island Bombing Range, and 3) restricted airspace R-5314 above the Pocosin NWR which is used for high-speed, low-level flights. Although the impacts caused by military aircraft operations in these areas may have been similar enough draw logical parallels regarding the impacts on the environment at Site C, the Navy did not present enough concrete data to support their claims. In the court’s opinion, the comparisons were not valid.

• “The Navy’s consideration here of cumulative impacts both with existing military airspace and with the proposed Mattamuskeet MOA was insufficiently comprehensive.” It is the court’s opinion that the Navy failed to account for the environmental impacts caused by the numerous flights to the OLF and military operations that would be conducted in a proposed MOA. Coupled with the previously mentioned shortfalls, the court concluded that the Navy did not adequately consider the cumulative impacts.

Coastal Zone Management Act (CZMA). The second environmental act used by SELC to argue their case is the CZMA. Congress enacted the CZMA in 1972 in an effort to encourage states to better manage coastal areas. CZMA provides grants to states that develop and implement federally approved coastal zone management plans. It also allows states with approved plans the right to review federal actions to ensure they are consistent with those plans, otherwise known as Federal Consistency. Under Federal Consistency, all federal agencies are required to be consistent to the maximum extent practicable with the enforceable policies of approved state management plans. Therefore, in this case, the Navy is required to review all approved Land Use Plans for consistency in the areas being considered for OLF construction since they fall in the coastal zones of North Carolina.

The SELC specifically pointed out the Navy’s failure to evaluate Beaufort North Carolina’s Land Use Plan (LUP) for consistency. In this LUP, under the title “Natural and Manmade Hazards”, the plan states, “Do not allow development that poses risk to life or property or the quiet enjoyment of property in established communities; that negatively impacts existing resource-based economic activities, such as farming; or that threatens important natural areas or wildlife resources.”[18] Given this statement, the Navy should have made a determination in the EIS to show that the OLF and basing activities were not consistent and given reasons why the Navy could not comply.

Federal Statutes. In addition to NEPA and CZMA, there are several federal environmental statutes that the Navy must also comply with when they accomplish a SEIS. The SELC identified some of these in their Comment Letter[19] on the final EIS. These include:

• Bald and Golden Eagle Protection Act (BGEPA) – This act makes it illegal to molest or disturb the eagles or their nests. The SELC contends that the failure to consider the BGEPA in the EIS is arbitrary and capricious.

• Migratory Bird Treaty Act (MBTA)– This act prohibits the taking of "any migratory bird … or eggs of such bird" without a valid permit issued by the Director of the U.S. Fish and Wildlife Service (FWS). The military has secured a partial exemption for its activities pending the development of special permitting regulations, but military training activities are still required to comply with the MBTA. The Navy must consider the impacts and take appropriate actions to minimize and mitigate the impact of training.

• Endangered Species Act (ESA) – This act protects certain species of animals that have been declared endangered. The OLF Sites C and D are in the vicinity of the Red Wolf population that is being reintroduced in the Eastern North Carolina region.

In this case, the FWS also voiced significant concerns regarding the potential to adversely effect the endangered red wolf populations if either Site C or D is selected for the OLF. Because the red wolf population is "experimental" under Section 10(j) of the ESA, the threshold for making the jeopardy and adverse effects determinations are treated differently. The FWS is concerned that the aircraft activity during training missions could negatively influence the wolves' ability to communicate with one another, especially since the majority of the Navy training is expected to be at night. They are also concerned that the OLF operations may positively influence coyote populations in the area which would negatively affect the genetic purity of the red wolf population due to inter-breeding and hybridization.

Section 102 (2) (c) of the National

Sources of Conflict

The legal aspects of this case are just the end result of the Navy’s failure to recognize, or adequately address the sources of conflict with the community. If the Navy fails to alter its approach to these conflicts, future litigation can be expected. There are several sources of conflict that can be identified in this case which may also be applicable to future projects at other locations.

New Development. The first source of conflict is new development surrounding existing bases (urban encroachment). Most military installations were originally located in remote areas due to the availability of land and for security purposes. Over time, people and businesses moved closer to installations to take advantage of civilian job opportunities offered and to provide the goods and services to support the installation’s operations. As growth and development increases, land use conflicts between military and civilian development will increase. Urban encroachment often compromises the ability and effectiveness of the installation to conduct its mission. This case highlights the conflicts in the Virginia Beach, Virginia area and the Navy’s attempt to mitigate the problem. The urban encroachment surrounding NAS Oceana forced the Navy to find alternate locations to conduct training or to consider alternate basing sites. Despite attempts at mitigation, no alternative was acceptable to all populations in the locations being considered. Their efforts will always be opposed by those who do not want the training “in their backyards.” Unfortunately, as coastal development increases, the likelihood of locating an acceptable site will continue to decrease.

Coastal Population Growth. In addition to urban encroachment, the Navy will have to compete with expanding coastal development. As indicated by the US Census data[20], population growth along the coastal areas, particularly in the Southeastern states, has increased dramatically. Barrier islands that were once occupied by a few full time residents and several vacation homes are now built to capacity. This desire to build along the coast will continue to conflict with the Navy’s need to “train as it fights”. According to Naval Doctrine,[21] the Navy’s “focus has shifted…placing a new emphasis on littoral operations.” This means that they must continue to train in the same locations that the civilian populations are developing.

As stated in the EIS, the Navy needs OLFs which simulate the ocean environment in which they operate to adequately train their carrier-based pilots. This means that surrounding nighttime ambient lighting from population centers must be minimized. However, due to operational necessity, the fighter aircraft are typically homebased in areas close to major port facilities that can support fleet operations and most major port facilities are located in densely populated urban areas. This means that realistic training for their fighter pilots must be conducted at remote locations; OLFs.

The conundrum is finding a suitable OLF near enough to the homebase to accomplish training while not impacting the surrounding communities. As defined in the EIS, the Navy requires 2,000 acres for the core area of the OLF and the purchase or restrictive easements on an additional 50,000 acres surrounding the core. Additionally, to have enough fuel to make the training productive, these OLFs must be located relatively close to the homebase; typically within 100 NM. With these restrictions, new coastal and environmental regulations and increasing population growth, fewer areas will be able to meet these criteria.

Environmental Issues. Finally, humans are not the only population that affects the Navy’s ability to locate an acceptable training site, animal populations also compete for the same areas. In most instances, military training is unfriendly to the environment. Military operations tend to have significant environmental impacts in their immediate vicinity. Noise, vibration, detonations and traffic are a part of major military operations. Thus, when these operations are conducted in coastal areas, populations of birds, animals and people are subjected to these affects. This is particularly true for migrating water fowl populations. Military leaders argue that realistic live exercises are necessary to keep their forces trained at a level capable of responding to the world’s growing problems. Therefore, as the military trains for its ever expanding mission, environmental conflicts are expected to increase.

Lesson Learned

Although this dispute is still in litigation, there are several lessons that can be noted from the events to date.

Lessons for the Navy. There are really no new lessons in this case for the Navy; they just continue to relearn old lessons. Despite the fact that they have been involved with the NEPA process since it's inception in 1969, the Navy has not fully grasped the ideas behind NEPA. For instance, in 1988 the Navy attempted to reconstruct the military housing complex at its installation in Key West, Florida. A group know as Protect Key West filed suit to stop the construction. As part of their argument, they presented to the courts that the Navy failed to conduct a proper EA or EIS. The original EA consisted of “eight typewritten pages, exclusive of three area maps, with just two pages devoted to ‘Environmental Consequences’. Each of the potential environmental impacts addressed therein is dismissed as conclusory ‘findings’, without discussion or even citation. The [Finding Of No Significant Impact] FONSI itself simply restates the conclusions of the EA.”[22] As in the current case with the SELC over the OLF construction, the courts in the Key West case ruled against the Navy stating, “far from the requisite ‘hard look’, the Navy barely took any look at the environmental consequences of the project in the EA.”[23]

The lessons the Navy should take away are:

• Work closely with the surrounding communities. It is much better to gain the support of the surrounding communities and environmental organizations than it is to try to bully their way through a project. Obtaining the endorsement, or at least reducing the resistance, of the community early in the planning process will give the Navy a better chance of completing projects in a timely manner without the cost of litigation.

• Consult with environmental organizations in the early stages of planning. The majority of the environmental organizations would be ecstatic to be brought in on the project planning in the early stages versus finding out about a potentially controversial project through the Federal Register. Gaining their support early in a project will certainly save considerable money later since most environmental litigation is filed and funded by these national and local organizations. Not only would the Navy save the monetary and temporal coasts of litigation, they would save the extra time and money spent to conduct supplemental EISs and remedial action required by the courts.

• Involve other federal agencies in the planning. When it comes to environmentally contentious issues, the Navy should be consulting other federal agencies such as the Environmental Protection Agency (EPA) and FWS. In addition to having personnel that are experts in the environmental field, they are also well educated in regards to potential environmental litigation. After all, this is their profession. They may be able to comment on the proposed project before countless man-hours are expended to conduct an EA or EIS. They may also be able to offer mitigation measures that are acceptable to all parties, reducing the likelihood of litigation.

Lessons for the Environmental Organizations. As is the case with the Navy, environmental organizations are also well acquainted with the NEPA process and federal regulations. Although there are no new lessons for them in this case, the lawsuit does reinforce two that have been learned previously.

• Delaying a project may be as good as canceling it. Although it is very hard to obtain a complete cancellation of a military project based on NEPA, the delaying action associated with litigation is an effective means to run up costs to the point where other alternatives begin to look more advantageous to the Department of Defense (DoD). Programs that are on a tight timeline may be cancelled because they cannot accept the delays litigation would impose. Even projects that are not time-critical can be stopped because of the increased financial costs associated with litigation and remedial actions levied by the courts.

• Proactive efforts would save money. Taking an interest in a program in its early stages could save environmental organizations a good deal of money. It is usually easier to steer a program than to fight against one. Thus, it is beneficial for environmental organization to try to become part of the planning team early in the planning stages. By doing so, input can be offered to a project before a final decision is made to help avert the costs of going to court and, more importantly, achieving desired environmental protection measures.

Local Governments. Local governments have an excellent opportunity to learn from this case. The case clearly demonstrates the need for local governments to be proactive in their land use plans and to have someone on staff with environmental experience. The specific take-aways from this case are:

• Work with federal agencies early in the planning cycle. It is always better to attempt to be part of the solution than to fight against a project. Being a proactive member of the planning team will assist local governments in obtaining an acceptable outcome to any federal project in their jurisdiction. As such, they may be able to favorably influence a decision by providing an acceptable alternative for the project. In addition, it is normally harder to fight against someone with whom a close working relationship has developed; compromise is almost always preferred to confrontation. This may also help achieve an acceptable outcome. In the event that things still are not proceeding the way a local government would like, they will have intimate knowledge of the plan so they can develop an effective strategy to counter the project if an agreement is not possible.

• Develop enforceable regulations and a comprehensive Land Use Plan (LUP) in conjunction with the State. When it comes to litigation with the federal agencies, the best weapons are enforceable regulations and a state-approved LUP. By having these, federal judges are more apt to offer opinions in support of the local government, or at least consider the regulations when giving their opinions, especially in coastal communities. As this case demonstrates, the LUP is an effective tool when it comes to federal consistency determinations in coastal states. This tool alone could cause a program delay, or ultimately, the cancellation of a program.

• Obtain the support of environmental agencies. Environmental groups bring with them in depth knowledge of environmental procedures, law and probably most importantly, money. Most large organizations have been involved with numerous environmental projects and legal battles, so they bring a wealth of expertise to the table. They can assist with explaining and proposing alternatives, identifying potential problems and ensuring federal agencies follow the regulations. In short, they have probably been through a similar legal battle before and can save a local government considerable time and money when it comes to opposing a project.

Appendix A – Homebase Siting Locations

Homebase Sites

The following are the alternatives bases sites selected by the Navy in the final EIS.

Alternative (ALT) 1: All 10 fleet squadrons and the FRS would be stationed at NAS Oceana, Virginia Beach, Virginia.

Alternative (ALT) 2: All 10 fleet squadrons and the FRS would be stationed at MCAS Cherry Point, Havelock, North Carolina.

Alternative (ALT) 3: All 10 fleet squadrons and the FRS would be stationed at MCAS Beaufort, Beaufort, South Carolina. In order to accommodate all of the Super Hornet squadrons at MCAS Beaufort, all existing Marine Corps assets would be transferred to MCAS Cherry Point.

Alternative (ALT) 4A: Six fleet squadrons and the FRS would be stationed at NAS Oceana and the remaining four fleet squadrons would be stationed at MCAS Cherry Point.

Alternative (ALT) 4B: Six fleet squadrons and the FRS would be stationed at NAS Oceana and the remaining four fleet squadrons would be stationed at MCAS Beaufort.

Alternative (ALT) 5A: Six fleet squadrons and the FRS would be stationed at MCAS Cherry Point and the remaining four fleet squadrons would be stationed at NAS Oceana.

Alternative (ALT) 5B: Six fleet squadrons and the FRS would be stationed at MCAS Cherry Point and the remaining four fleet squadrons would be stationed at MCAS Beaufort.

Alternative (ALT) 6: Eight fleet squadrons and the FRS would be stationed at NAS Oceana and the remaining two fleet squadrons would be stationed at MCAS Cherry Point.

Appendix B – OLF Siting Locations

Outlying Landing Field (OLF) Sites

The following sites were chosen by the Navy for the location of an OLF to conduct pilot training:

Site A: Perquimans County. Site A is located in northeastern Perquimans County. The site is characterized by sparse development and contains primarily agricultural fields. The largest community proximate to the site is the Town of Hertford, located approximately 15-miles south of the site. The area encompassing the site was formerly part of the Great Dismal Swamp but has since been drained and currently is use for farming and timber production. The 2,000-acre core area contains 1,400 acres (70%) agriculture fields and the remaining 600 acres forested lands. The Great Dismal Swamp National Wildlife Refuge (NWR) is located approximately 7-miles north and the Chowen Swamp Game land is located 10-miles west of the site. Site A is located 37 nautical miles (NM) south of NAS Oceana and 85 NM northwest of MCAS Cherry Point.

Site B: Bertie County. Site B is located in southeastern Bertie County near the eastern shore of the Chowan River and Albemarle Sound, approximately 7-miles northeast of the Town of Windsor. Site B consists of forest lands, primarily used for silviculture and agriculture. Approximately 1,900 acres (95%) consists of forestlands with the remaining cleared for agricultural use. The Roanoke River NWR is located 10-miles south and southwest of the site while the Bertie County Game Land is located approximately 6-miles south of the site. Bachelor Bay Game Land and Roanoke River Wetlands Game Land are located 8-miles south of Site B along the Roanoke River. The site is located nearly equidistant from NAS Oceana and MCAS Beaufort.

Site C: Washington County. Site C is located in Washington County near the southern boundary with Beaufort County, approximately 9-miles southeast of the City of Plymouth. Land use is agriculture with scattered rural residences. The site contains 99% row crops and small areas used for livestock grazing. The Pungo Unit of the Pocosin Lakes NWR is located approximately 5-miles east of the site while the B-Canal Tract of the NWR is located 3.5-miles northeast of the site. Pettigrew State Park containing Lake Phelps is approximately 8-miles northeast of Site C. Van Swamp Game Land is located approximately 2-miles west of the site. The site is located 72 NM from NAS Oceana and 50 NM from MCAS Cherry Point.

Site D: Hyde County. Site D is located in the eastern portion of Hyde County, along Pamlico Sound and north of Lake Mattamuskeet, approximately 4-miles northwest of the Town of Englehard. Undeveloped land dominates Hyde County, with agriculture, forested lands, and wetlands the predominant land use/land cover types in the County and in the site. Approximately 1,235 acres (62%) of Site D contains agricultural lands with cotton and corn the primary crops. The remaining 765 acres is primarily forested. Mattamuskeet NWR is located approximately 3-miles south and Alligator River NWR is directly north of the site. Site D is located approximately 75 NM from NAS Oceana and 60 NM from MCAS Cherry Point.

Site E: Craven County. Site E is located in Craven County, approximately 5-miles east of the Town of Vanceboro, near the Beaufort County border. Land use in the site vicinity is predominantly silviculture with areas harvested and clear cut timberland. The entire site is active silviculture for planted pines with one-half of the site containing brushy/barren areas post harvest and the other half pine stands that vary in age. The Neuse River Game land is approximately 8-miles southwest of the site. Site E is approximately 102 NM from NAS Oceana and 26 NM from MCAS Cherry Point.

Appendix C – Area Map[24]

Appendix D – OLF Siting Map[25]

Appendix E – Historical Timeline

June, 2000 – Navy published Notice of Intent to bring Super Hornets to the East Coast. No Outlying Landing Field is mentioned.

October, 2000 - Navy states that a new OLF will be considered to mitigate noise complaints from residents in Chesapeake and Hampton, VA living near existing OLF at Fentress Field.

August, 2002 – Navy releases draft EIS which lists Washington county as one of two preferred OLF sites. The environmental expert hired to prepare and draft the sections related to wildlife admitted to having never read the reports he cited and visiting the site only once, after the draft EIS was complete and when the birds were in the Arctic Circle.

September, 2002 – Navy changes requirement that OLF must be within 50 miles of base but refuses to re-examine sites in Virginia submitted because they are more than 50 miles from Oceana.

January, 2003 – Navy makes first visit to proposed site to evaluate birds.

July, 2003 – Final EIS released.

September, 2003 – Navy announces decision to locate OLF on 30,000 acres in Washington and Beaufort counties, North Carolina.

January, 2004 – SELC, on behalf of National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife, and Kennedy Covington, on behalf of Washington and Beaufort counties, file suit in federal district court against the Navy.

February, 2004 - Plaintiffs ask for preliminary injunction to halt all Navy action at the site of the proposed OLF until the merits of the case are heard.

April, 2004 – Judge Terrence Boyle grants preliminary injunction, ruling the conservation groups and the counties have a strong chance of prevailing in the case.

October, 2004 – Boyle rejects the Navy’s request to stay the preliminary injunction.

November, 2004– Navy files motion to stay preliminary injunction with 4th Circuit of U.S Court of Appeals.

January, 2005 – 4th Circuit of U.S. Court of Appeals grants the Navy’s motion to stay the preliminary injunction. Navy immediately condemns land for proposed OLF. Oral arguments on preliminary injunction scheduled for February 1, 2005.

January 19, 2005 – Plaintiffs and Navy make final oral arguments on issue of permanent injunction in U.S. District Court in front of Judge Terrence Boyle.

February 1, 2005 – Plaintiffs and Navy make oral arguments to 4th Circuit court of Appeals on issue of preliminary injunction

February 19, 2005 - US district Court Judge Terrance Boyle grants permanent injunction against the OLF saying the Navy failed to make an objective determination of the impact on the surrounding environment of an OLF and that it took the "uninformed action" that the National Environmental Policy Act specifically prohibits. Requires Navy to cease all planning, development, or construction of an OLF in Washington and Beaufort counties without first complying with NEPA. Navy soon files appeal with 4th Circuit.

May 19, 2005 - Fourth Circuit Court of Appeals denies Navy's request for stay of the permanent injunction but grants an expedited hearing schedule.

June 25, 2005 - Navy announces plans to study alternate site for an OLF, seemingly complying with the very order it is appealing in the 4th Circuit.

July 20, 2005 - Fourth Circuit Court of Appeals hears arguments regarding the appeal of the permanent injunction issues by the US District Court.

Sept 7, 2005 - Fourth Circuit Court of Appeals gives its opinion; remands a portion of the injunction.

Appendix F - REFERENCES

Department of the Navy, “Final Environmental Impact Study for the Introduction of F/A-18E/F (Super Hornet) Aircraft to the East Coast of the United States,” July 2003

Eastern District Court, “United States’ Reply in Support of United States’ Motion for Summary Judgment”, March 25, 2005

Eastern District Court, “Motion and Memorandum of Law to Stay, Suspend or Modify Permanent Injunction Pending Appeal”, January 10, 2005

Findlaw for Legal Professionals website (4th Circuit Court Opinions);

Navy F/A-18 E/F EIS Project Site;

Southern Environmental Law Center, “Comment Letter on the Final EIS”, August 13, 2003

Southern Environmental Law Center website;

Wildlaw Non-Profit Environmental Law Firm, “The Essentials Of NEPA”,

United States Court of Appeals for The Fourth Circuit, “Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City.”, September 7, 2005

United States District Court Eastern District of North Carolina;

US Code, Title 42, Chapter 55, Subchapter I, §4331, “Congressional Declaration of National Environmental Policy”, February 25,2005

US Code, Title 42, Chapter 55, Subchapter I, §4332, “Cooperation of Agencies; Reports; Availability of Information, Recommendations; International and National Coordination Efforts”, February 25,200

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[1] Final Environmental Impact Study for the A/F-18E/F (Super Hornet) Aircraft to the East Coast of the United States, p 2-8.

[2] United State District Court for the Eastern District of North Carolina North Division, “Plaintiff’s Memorandum of Law in Support of A Joint Motion For Preliminary Injunction”, Feb. 9, 2004.

[3] “Plaintiff’s Memorandum of Law in Support of A Joint Motion For Preliminary Injunction”, Ibid.

[4] US District Court for the Eastern District of North Carolina, “Plaintiff’s Memorandum of Law in Support of Motion For Summary Judgment”, Nov. 22, 2004.

[5] “Plaintiff’s Memorandum of Law in Support of A Joint Motion For Preliminary Injunction”, Ibid

[6] “Plaintiff’s Memorandum of Law in Support of A Joint Motion For Preliminary Injunction”, Ibid

[7] United States Court of Appeals For the Fourth Circuit, “Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City”, Sept. 7, 2005.

[8] United States Court of Appeals For the Fourth Circuit , Ibid

[9] United States Court of Appeals For the Fourth Circuit , Ibid

[10] “The National Environmental Policy Act of 1969, as amended”,

[11] 40 C.R.F. 1500.1(b).

[12] 1909.15 FSH 15.

[13] Wildlaw Non-Profit Environmental Law Firm, “The Essentials Of NEPA”, and Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).

[14] Wildlaw Non-Profit Environmental Law Firm, “The Essentials Of NEPA”, and California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).

[15] Wildlaw Non-Profit Environmental Law Firm, “The Essentials Of NEPA”, and Headwaters, Inc. v. Bureau of Land Management, 914 F. 2d 1174, 1180-81 (9th Cir. 1990)

[16] Ibid

[17] Opinion Summary from the SELC website,

[18]Beaufort County website for public input on the Land Use Plan, , October 8, 2005.

[19] SELC Website, , Aug 2003

[20] U.S. Census Bureau website, “American Fact Finder”,

[21] “Naval Doctrine Publication 1 Naval Warfare”, 28 March 1994, pp.6 and 60.

[22] Protect Key West, Inc. v. Cheney, 795 F. Supp. 1552 (S.D. Fla. 1992.)

[23] Protect Key West, Inc. v. Cheney, 795 F. Supp. 1559-60 (S.D. Fla. 1992.)

[24] Southern Environmental Law Center website;

[25] Final EIS (July 2003)

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