Council Grapples with F35 Lawsuit

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Thursday June 16, 2016

For the second time in just over a week, City Hall was host to a packed house of community members anxious to hear the South Burlington City Council discuss whether or not to join as a party plaintiff in the federal F35 National Environmental Policy Act (NEPA) litigation; Zbitnoff et al v. Secretary of the Air Force Deborah Lee James. Although individuals were asked to sign in if they wanted to speak for or against joining the lawsuit, as the hour reached 11 p.m., the public comment portion of the evening was scratched in favor of a public forum dedicated solely to the topic June 22.

The June 13 special meeting was a follow up to the June 6 council meeting where Chair Helen Riehle presented a resolution for consideration, that if signed, would make the city a plaintiff in the lawsuit which is scheduled for early July. Riehle cited the need for additional information from the Air Force on the issues of safety and noise impacts to residents as the driving force behind the resolution. The City of Winooski as well as the Stop the F35 Coalition, and six citizens, are also part of the suit, although Winooski has joined on only one count, noise.

Riehle began by saying she hoped that comments and discussions between the public and councilors would remain civil. “10 percent of conflicts are due to difference of opinion, 90 percent of conflicts are due to the wrong tone of voice...not just written, but verbal,” Riehle said, quoting a post she had seen on facebook. She also added that difference of opinion is the basis of democracy. And differences of opinion there were. Tempers rose and heated discussions punctuated the evening.

Before the discussion on the lawsuit got underway, the council addressed an alleged open meeting law violation asserted by Nicole Citro, a South Burlington business owner and creator of the group, Green Ribbons for the F35. In a letter to VT Attorney General Sorrell, Citro alleges that three councilors, Helen Riehle, Meaghan Emery, and Tim Barritt were in violation of the open meeting law. Citro requests that all e-mails, social media contacts, and phone calls be examined on this issue, and that correspondence with Rosanne Greco and Maida Townsend by any of the three council members be included in the investigation.

Riehle addressed the allegation stating that she never had a conversation with the three councilors together, saying, “That did not take place, so there was no violation.” Emery and Barritt each concurred that their conversation with Riehle was held individually.

Pat Nowak expressed concern regarding how the matter of discussing the proposed resolution was handled, and said that Riehle had left out 40 percent of her council. Chittenden expressed dismay about timing and that the city manager and attorney had known about the issue and yet he had not been informed.

Three attorneys were present to offer clarity around the options available to the city for acquiring the information they are seeking from the Air Force on noise and safety concerns. South Burlington City Attorney Jim Barlow, Attorney James Dumont, who is representing the Stop the F35 Coalition, and Chris Roy, who is representing the Greater Burlington Industrial Corporation (GBIC), each addressed the council.

Prior to receiving information from Barlow, Tom Chittenden brought forth a packet of e-mails and other documentation which he says show that Meaghan Emery has a vested interest in the lawsuit. He pointed to her participation in a private forum of the Stop the F35 Coalition as well as e-mails as evidence. Chittenden repeatedly asked that Emery disclose any interest, personal or financial, she may have, and recuse herself from the lawsuit discussions. Further, Chittenden made a motion to receive third party legal advisement on this issue and suggested that City Attorney Jim Barlow is not a neutral party, going so far as to suggest that Barlow has sensed a majority opinion on the council and is therefore, not impartial. City Manager Kevin Dorn explained that Barlow has been acting on his direction and only at his request in his actions.

Pat Nowak asked for a “higher level” opinion on the matter, but Barlow said he wasn’t sure what higher level that would be since the Attorney General does not have jurisdiction over the city of South Burlington’s policies. Chittenden’s motion was seconded by Nowak, but ultimately failed in a vote, 3-2.

Barlow responded by stating his obligation to the City of South Burlington is to provide legal advice for its governing body, noting that the body works through the will of its majority. He also weighed in on Chittenden’s allegations regarding Emery, stating that Emery, as a city agent, would be subject to the city’s adopted ethics policy. Barlow said that if she were a member of the Coalition, that could be classified as a financial or personal interest and she would be required to disclose such an interest, but nothing in the city policy allows for other councilors to “vote her off the island.” He explained that she can choose to recuse herself, or not, based upon whether she feels she should participate.

Emery re-iterated that when she was a private citizen, not a councilor, from 2012-2014, she participated in meetings of the Stop the F35 Coalition, but hadn’t since being on the council. Emery noted that the e-mails Chittenden had pulled refer to a different lawsuit, one regarding Act 250.

At Riehle’s request, Barlow went on to explain the different levels of being involved in a lawsuit and the rights each would afford the city. Joining the lawsuit as an intervenor, the city would acquire all of the rights of a plaintiff. Joining as an amicus curiae or friend of the court is someone who is not a party to the suit. Typically an amicus would present a different point of view, not already represented in the suit. An amicus can file responsive briefs to arguments already raised and status is granted at the discretion of the judge and isn’t guaranteed. Barlow noted that GBIC is an amicus in this lawsuit, so they can’t appeal decisions, but if an appeal is brought by the parties, they could ask to join as amicus again. This presumes there would be an appeal, which there may not be.

Barlow noted that there is a significant time limitation if the city wants to file either as a party or as amicus as this suit has been going on for years and the trial is set for July 5. “My obligation is to do the very best job that can be done if that’s what you choose to do,” he said. Barlow went on to explain that he practices in the area of municipal law and that it may be in the city’s interest to have some additional outside council.

Next, James Dumont addressed questions raised by the council and began by clarifying that it is “impossible to award anybody any money damages” through this suit. There are only two statutes at play; the Administrative Procedure Act and NEPA and neither allows damages to affected landowners in this suit. The basic premise of the suit is that the government will make better decisions if the public is given adequate disclosure. The judge’s role is to decide if NEPA has been complied with. Dumont explained that the judge does not say yes or no to the basing of the F35, he determines if an informed discussion has occurred, if it hasn’t, next steps cannot go forward. Dumont noted that in this case, if a judge says that the EIS does not provide sufficient information, everything stops, including the basing until the information shortage is remedied.

Nowak asked if South Burlington joining the suit would add weight to Judge Crawford’s decision? Dumont said if the court sees that “a duly elected body wants to be a party, it could prompt them to take the case more seriously.”

The simple solution, Dumont said, would be to enter as a plaintiff, thereby not spending a lot of time or money putting together another opinion and he noted the city could join on just one count, as Winooski did, on just noise. Or, for example, on count 2 which focuses on the EIS’s failure to consider South Burlington’s zoning and comprehensive plan.

Nowak asked if South Burlington were to join as a party plaintiff, how would they weigh in on the outcome. Dumont said as a party, South Burlington would have 100 percent of the vote. The city would have its own lawyer and would be in the driver’s seat. Each party has the right to appeal even if no one else does.

Pat Nowak called on Todd Cosgrove, VT State Hazardous Materials (Hazmat) Response Team Chief to speak on emergency preparedness in the event of a plane crash. Cosgrove spoke at length about his team, and their experience putting out fires stemming from a variety of materials, including composites. Cosgrove said he thought the air guard was very well equipped to respond to any emergency event and that he can have people on the scene within fifteen minutes of an event. Cosgrove said he felt the Air Guard had the adequate training and materials to respond to a crash.

Attorney Chris Roy, representing GBIC, was the last speaker of the evening. He said he disagreed on the substance of points but not the procedure. Roy said that he thinks Dumont has done a comprehensive job and the Air Force has done a comprehensive job, as well. This isn’t a matter of South Burlington filling divots that haven’t been touched on...you can sleep at night knowing that he has raised all of the issues that could come up.” Roy explained that the whole premise of being an amicus, is that a different opinion is presented. He thinks that regardless of who wins this suit, there is going to be an appeal.

“The fact of the matter is that any delay buys time to gain an outcome that wouldn’t have been acquired otherwise...delay is beneficial to opponents of the F35.” Roy added that he believes “The US Air Force isn’t going to make big decisions based on whether or not South Burlington joins this lawsuit.”

As the hour ticked past 11 p.m., and the public still had not had an opportunity to speak, Chittenden suggested a public forum be held dedicated to this topic in order for the public to be heard. Barritt furthered the idea and it was unanimously decided that a forum to hear from the public would take place Wednesday June 22 at 6:30 p.m., location to be determined.

SOURCE: Corey Burdick, Correspondent