Court says Navy ignored, twisted facts
By BILL SANDIFER, Staff Writer
RALEIGH -- The Navy didn't fare as well as its opponents in a Friday federal court ruling, but it did score some points.
Eastern District Judge Terrence Boyle's ruling blocks further Navy work on a proposed outlying landing field project in Washington County. In granting opponents' motion for summary judgment, Boyle went to the heart of the civil lawsuit, ruling the Navy had failed to do adequate environmental studies -- required under the National Environmental Policy Act -- before selecting its site.
"(T)he Navy has acted arbitrarily and capriciously," wrote Boyle in his opinion granting a permanent injunction that will allow no further OLF activity until the Navy essentially redoes much of its environmental work. Additional studies, apparently, would be required not only at Site C but alternative sites as well.
"The Navy is ENJOINED from taking any further activity associated with the planning, development, or construction of an OLF in Washington and Beaufort Counties without first complying with its obligations under NEPA," wrote Boyle.
The judge, however, qualified the extent of his ruling.
"Nothing in the Court's order invades the province of the Navy's authority to make decisions about the need for an OLF or the decision whether or not to proceed with the planning and construction of an OLF. The Court is simply fulfilling its role of ensuring that any agency action is made in compliance with NEPA," explained Boyle in a footnote.
The judge made it clear his ruling is an injunction -- not a dead end.
"In the event the Navy chooses to proceed with the OLF project at Site C," he wrote, "it may do so if and when it satisfies the mandates of NEPA."
What if?
In issuing the permanent injunction, Boyle noted that, absent that action, the Navy would have been able to "undertake substantial and irreversible changes affecting the fragile wildlife of the Pungo Unit and the Pocosin Lakes without first thoroughly considering the consequences of its actions."
On the other hand, the judge agreed with Navy attorneys who argued the OLF's compatibility with coast land-use plans, prepared for Washington County only, was adequate to cover the 8,000 acres of the OLF that spills into Beaufort County. The issue, said opposing attorneys, will have no material effect on the overall ruling.
On the other hand, Boyle criticized the Navy for continuing OLF work following the stay of his preliminary injunction.
"The Navy's actions have been taken in a context that does not conform with the requirements of the law," wrote Boyle.
The judge also took issue with Navy arguments that no harm would occur until the airfield was actually put into operation. Boyle wrote "irreparable harm" would occur: "If land acquisition is allowed to proceed, additional landowners will be permanently displaced, tax revenue permanently lost, and the fragile habitat around Site C will be disrupted."
Boyle also concurred with opponents' arguments that current Navy facilities are "capable of handling training if necessary, but were intentionally discredited in the drafting of the (Final Environmental Impact Statement) to justify the new OLF."
'Arbitrary and capricious'
Of interest to those who have followed much of the OLF case is a description of arbitrary and capricious contained in case law cited by Boyle in his ruling. The finding applies if an agency "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Among actions the court found "arbitrary and capricious" is the Navy's contention that "the impact of an OLF at Site C on the waterfowl at Pocosin Lakes will be minimal."
Calling the Navy's project "a dramatic alteration of the environment," he added, "(T)he evidence in the FEIS does not support the Navy's conclusions. ... The result is a clear error in judgment in a conclusion with no rational basis in the evidence."
Boyle cited specific deficits in his conclusion, describing time Navy researchers spent at and around Site C as "negligible."
Ironically, in the early stages of the site-selection process, one Navy spokesman described much of the site work as a "windshield tour of the area," a method corroborated in the Navy's own record.
"The contractors overseeing the evaluation on wildlife ... did little more than drive around the area for several hours and made no effort to assess the environmental impacts associated with the waterfowl."
Even those windshield tours occasionally failed to recognize significant operations in the area.
A portion of one Navy environmental study notes Donald's Air Park, a prominent feature adjacent to N.C. Highway 99, was only discovered later when a Navy worker saw it identified on a sectional, an aviation map.
Bashing BASH
Although many residents and landowners have, at times, grumbled about birds trumping people in the court battle, Boyle's ruling places the safety of fighter pilots high on the list of priorities.
"The incomplete evaluation," wrote Boyle, "is most visible in the Navy's handling of the Bird Aircraft Strike Hazard ... evaluation."
Boyle noted pilots had early objected to Site C "because of the substantial BASH risk."
All military branches have lost pilots and millions of dollars worth of flying hardware as a result of collisions with birds.
In an e-mail sent to other Navy environmental team members, former fighter pilot and contract Navy consultant John Robusto complained of having to change course to avoid birds in the vicinity of the proposed site.
The Navy, in attempting to add a little distance between the proposed OLF flight path and the adjacent Pocosin Lakes refuge, apparently made a strategic blunder.
"(T)he Navy is still changing the location of the flight patterns," wrote Boyle. "Rather than strengthening the Navy's position that it has complied with NEPA, this variable tends to undermine the sufficiency of the FEIS."
Boyle also cited conclusions the Navy drew from scientific literature that appear to conflict with the evidence contained in that literature, "information contrary to its conclusion."
The Navy issued a news release disputing the court's conclusions and stating its intent to appeal the ruling.
http://www.wdnweb.com/articles/2005/...ews/news01.txt 
Court says Navy ignored, twisted facts
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