Navy grounded on OLF
By BILL SANDIFER, Staff Writer
The Navy found itself locked out of Washington County Tuesday, following a ruling in Eastern District federal court.
U.S. District Court Chief Judge Terrence Boyle of Elizabeth City ordered a preliminary injunction against the Navy, halting any further actions toward completing an outlying landing field until twin civil lawsuits are heard. Those suits, filed in early January, have been consolidated.
The March 30 injunction hearing saw OLF opposition counsel and a Department of Justice attorney present legal arguments before Boyle.
A team from the Charlotte office of the Kennedy Covington law firm had filed suit on behalf of Washington and Beaufort counties. In a similar action, attorneys from the Chapel Hill office of the Southern Environmental Law Center sued on behalf of a coalition of conservation groups, including the National Audubon Society.
"On behalf of Washington and Beaufort counties, we are extremely pleased with the decision rendered by the court today," said Ray Owens, Kennedy Covington lead attorney, in a Tuesday news release. Along with attorneys Chris Lam and Kiran Mehta, Owens added, "The citizens of our counties have sought justice and we believe it has been rendered by Judge Boyle in our case."
The ruling followed a week of Navy land acquisitions -- about 30 percent, by Navy estimates, of the core acreage it seeks. The purchases of approximately 1,200 acres cost roughly $3.7 million.
The ruling drew an enthusiastic response from local officials and the grassroots organization North Carolinians Opposed to the OLF.
"This is a God-sent gift," said Doris Morris, NO OLF communications director. "This is what we wanted."
In a prepared statement, Morris offered the organization's position on Boyle's ruling:
"Our counties have joined together because this is the wrong site for military training. We are very happy with the judge's ruling. We hope that this will encourage the Navy to find a suitable location for an OLF site."
On a personal note, Morris added, "We still have a long battle in front of us, but this is a huge beginning."
"I am relieved and happy that Judge Boyle has ruled in our favor," said Jennifer Alligood, NO OLF chairman. "I hope the Navy will now find a more suitable site that will keep their pilots safe and not disrupt the lives of so many people."
Until the lawsuit is resolved, it's likely those disruptions will cease, said observers familiar with legal procedure.
The injunction's restrictions are stated succinctly in the conclusion of Boyle's ruling:
"The Court enjoins the Navy from directly or indirectly taking any further activity associated with constructing an OLF in Washington and Beaufort Counties, including but not limited to negotiations for land acquisition, site preparation, and construction, pending resolution of this lawsuit or until further order of this Court."
In the 19-page ruling, Boyle lays out the legal foundation for issuing the injunction, a ruling that requires determining "balance of harm."
The plaintiffs argued that landowners, wildlife and the environment would suffer greater harm from ongoing Navy OLF efforts than the Navy would suffer if the court required a halt until the pending civil suit was resolved.
The Navy countered, contending any delay in OLF plans could cause a "ripple" effect that would harm military training missions and readiness.
The judge agreed with the plaintiffs, finding that "the balance of harm is significantly weighted in Plaintiffs' favor. ... Once the land acquisition, site preparation, and construction on the OLF begin, the Navy's impartiality will be compromised, and it will be committed to proceeding with the project."
Boyle's ruling was written over a three-week period, with the Navy's land purchases occurring during the last six days prior to his issuing the injunction.
The Navy is on record as being unwilling to allow purchases to revert to landowners should the OLF process fail.
Boyle's ruling regarding such purchases expands on the "balance of harm":
If the Navy continues to purchase land in the absence of an injunction, and, if the civil suit is won by the counties and conservation coalition, "the Navy will have taken these steps forward on the OLF project in violation of NEPA." The National Environmental Policy Act outlines requirements that have to be met before federal projects such as an OLF can be built. NEPA -- and alleged violations of the act -- is at the core of the suit.
Expanding on case law, Boyle wrote, "Once the Navy moves forward, any consideration of the environmental impact will be less objective given the commitments made on the project and may become a mere formality."
Conversely, Boyle argues, "While an injunction will require the Navy to delay ... this alone does not constitute harm." Boyle cites Navy statements that it has sufficient training facilities to maintain readiness.
Further, he contends certain Navy allegations may be "misleading." Citing the Navy's own documents, Boyle writes, "It appears the OLF is not a true necessity for naval operations, as in the (final environmental impact statement), the Navy stated that '(a)lthough an OLF is not required to support the homebasing alternatives at (Naval Air Station) Oceana, the Navy is considering construction and operation of a new OLF to provide operational flexibility and to mitigate noise impacts ....'"
Many opponents have expressed anger regarding the "dumping" of noise in North Carolina to alleviate stress on residents in the Virginia Beach area, where Oceana is located.
Failing the issuance of the injunction, Boyle states that "irreparable harm" would occur to homeowners, the environment and waterfowl that use nearby Pocosin Lakes National Wildlife Refuge as habitat. That opinion, he writes, is based on "compelling evidence" presented by plaintiffs' attorneys at the March 30 hearing.
Although Boyle clearly spells out that his ruling for an injunction doesn't constitute a full review of the merits of the civil case, evidence presented by the plaintiffs has "raised serious, substantial, and difficult questions as to whether the Navy acted arbitrarily and capriciously in deciding to construct an OLF at Site C."
Such evidence, he adds, is adequate to demonstrate "that the Navy's decision to locate an OLF at Site C may have been a clear error of judgment."
In summary, Boyle cites NEPA requirements, stating, "the Court finds that public interest is best served by constructing an OLF at Site C only after a full consideration of the potential environmental impact and consequences by the Navy."
The Navy has the right to appeal Boyle's ruling.
"The Navy is aware of the ruling made by Judge Boyle today," said Cmdr. Ron Hill, a Navy spokesman in Norfolk. "It would be inappropriate for me to comment further on any matters relating to the litigation involving the OLF in Washington County."
In a related matter, the next session of the joint state-Navy study group on the OLF, appointed by Gov. Mike Easley, will meet as scheduled this week, according to Ernie Seneca, spokesman for Easley.
"We plan on meeting Thursday," he said, adding he had received no indication that Navy officials would not attend.
Hill, however, said a decision on the Navy's attendance would be made today.
For a detailed look at other legal points contained in the judge's ruling, see subsequent editions of the Daily News.
A copy of Boyle's ruling in its entirety is available for download at www.kennedycovington.com