Major General Steven Cray, Adjutant General of the Vermont  Air National Guard, addresses city council members during a special meeting June 22 at F.H. Tuttle Middle School.

Council Passes Resolution to File Brief as ‘Friend of the Court’ in F-35 Lawsuit

Home » City » Council Passes Resolution to File Brief as ‘Friend of the Court’ in F-35 Lawsuit

Thursday June 30, 2016

In the packed Frederick H. Tuttle Middle School cafeteria June 22, the South Burlington City Council voted 3-2 to join the F-35 NEPA lawsuit as amicus curiae, or ‘friend of the court.’ Two resolutions were presented by Councilor Tim Barritt and Council Chair Helen Riehle, non-litigious action steps were proposed by Pat Nowak via phone, and Councilor Chittenden withdrew his resolution, making a motion to table all resolutions. The motion was not seconded and was ultimately defeated.

The debate over whether or not to join the F-35 NEPA lawsuit has been ongoing, with tensions present on both sides of the debate. Councilors have presented several iterations of resolutions and three attorneys have offered their perspectives. The council has been considering joining the lawsuit as a full plaintiff, amicus curiae, or friend of the court, or not at all, in order to acquire additional information regarding health and safety impacts associated with the basing of the F-35, slated to arrive in 2019. The decision had been tabled several times since June 6 to allow for additional community feedback which the council has received via phone calls, e-mail, letters, and in person.

As the evening got underway, Barritt presented an overview of his resolution which involved joining the suit as amicus. His reasoning involved concerns over how increased noise affects the quality of life for residents and children at the nearby Chamberlin School as well as concerns regarding the probability of a crash as a result of the newer aircraft. He stressed that it is of grave importance that public safety officials are educated about the effects of a potential crash.
Barritt said, “I think that participating as amicus curiae is the best solution at this time. It shows supporters for the plaintiff that the city cares about their case and believes it is in the best interest of the community as a whole. At the same time, it assuages the VTANG supporters who do not want the city to be an actual plaintiff. You might see this proposal as a compromise that leaves no party completely happy. But that is often the best definition of a compromise. Yes, the city will spend some money on outside counsel, but it is a small and reasonable sum to achieve the best possible outcome, which is peace of mind for everyone.”

Next, Chair Helen Riehle presented a resolution that sought answers to lingering questions related to health and safety that were not addressed in the Final Environmental Impact Statement (FEIS). Her resolution ultimately requested that Vermont’s congressional delegation, “obtain federal funds for noise mitigation for the residents of South Burlington and the schools in the affected zones and federal funding for safety equipment and training for first responders.”
Meaghan Emery ultimately withdrew her resolution, but expressed support for both Riehle and Barritt’s. “Just as it is the duty of the VTANG to serve and protect Vermont and, when called upon, the nation, it is our duty as representatives of the City of South Burlington to ensure the safety, well-being, and financial wholeness of this city, its residents, and employees. In view of the risks, known through the draft EIS, the FEIS, the US Air Force administrative record, a laboratory report, and legal discovery in the Guam case, I find it unconscionable that we would not seek to the fullest of our ability to have complete disclosure of the safety risks that accompany the basing of the F-35 at BIA. Our citizens and first responders are not and should not be treated as guinea pigs.”

Councilor Pat Nowak joined the meeting via phone; but as she was not yet connected, Riehle summarized her statements, which primarily involved the non-litigious avenues of supporting the city manager in his outreach efforts with VTANG, fire and rescue services, and asking all three entities to present to the council regarding their safety concerns. Nowak also had a list of unanswered questions she wanted addressed prior to voting on any resolutions. Nowak’s statement said she was against any form of legal action.

Adjutant General of the Vermont Air National Guard Steven Cray, accompanied by seven members of the Air Guard in uniform said that their mission is to protect and defend the citizens of Vermont and the United States. Cray said that his team trains rigorously and added that the area fire departments have rapid intervention vehicles and are trained in emergency response to an aircraft accident including composite material fires. “The Air Guard takes flight safety very seriously. We have submitted updated flight data for noise mitigation maps and we will do our part to minimize our impact.”

Prior to opening the floor for public comment, Riehle outlined the format noting that there are two topics up for comment that evening, “What is the best approach for South Burlington to take to address health, safety, and noise impacts of the F-35 and how best can we receive the appropriate funds to address these health safety and noise impacts.” She stressed that the conflict of interest that was alleged at the last meeting had been addressed and “is not part of this hearing.” Each person was given two minutes to speak and she alternated between those for and against joining the lawsuit. She also emphasized the importance of maintaining “civility and tone” during the comment period and to respect differing viewpoints.

Public Comment:

Thirty-five individuals spoke, 17 supported joining the lawsuit and 18 were against. Some people brought up noise and safety concerns while others called for a ballot item at the next election.

Resident Steve Marriott was stationed with the U.S. Army in California in 1973 when a military crash occurred. According to Marriott, 11 people died. “In 2016, many community members have sent questions to the Air Force that have gone unanswered, we have a moral imperative to get this information,” he said.

Carmine Sargent, Chair of CNAPC and a Chamberlin neighborhood resident offered some history regarding city council votes of the recent past. Sargent said the council of several years ago voted against the F-35 basing, then a new council came in and a meeting was held where 80 percent of those present said they didn’t want the F-35 and the council voted against them. “Consensus is consensus is consensus,” Sargent said.

Rick Hubbard said regardless of what the council decides, they should be making decisions around safety and noise. “If we have an incident, we’re all affected. We can expect in the first ten years of the plane being here, 3 class A accidents, one every three years, if and when it happens, we want to be prepared.”

Those against joining the lawsuit had equally strong feelings. Howard Weisburg, said that 2 years ago, councilors who were against the F-35 basing were replaced by those who support the F-35. He supported a referendum to “let the people decide.”

Resident Ken Boyd said he was “very disappointed with the council and how this item was brought to a head...I’m very opposed to the lawsuit.” Boyd suggested instead, putting together a task force to work with the FAA. “It’s naive to think the Air Guard mission wouldn’t go away,” Boyd added.

Frank Cioffi, president of the Great Burlington Industrial Corporation (GBIC), which has joined the suit as amicus, told the council that “intervention at this point is too’s just political grandstanding...the opposition has lost at every step of the way and they’ll continue to lose.”


After hearing from the public, Riehle sought to alleviate some apparent confusion surrounding the lawsuit. She explained that the lawsuit is directed at the Air Force to complete the information required by NEPA and the city’s desire is to attain the best information it can, not to stop the basing of the F-35.

Emery added that the lawsuit is about information. “It has everything to do with safety and noise mitigation...this is a small price to pay to have answers to our questions and nothing more.”

Chittenden reiterated that he would prefer to take the matter to a public vote. “I’m here to represent the people,” Chittenden said, “this lawsuit is all about stopping the F-35. There are 18,000 citizens that want to have a voice.” Chittenden made a motion that a ballot item be added to the next possible election day, August 9, asking the citizens if they think the city should join the lawsuit as either a plaintiff or amicus. The motion failed, 3:2 with Barritt, Emery, and Riehle voting “nay.”

Riehle explained that she was voting against this motion because “it sets a problematic precedent regarding how and when to spend our money...we’re already being sued by Burlington regarding the no property tax dispute and this did not go to the voters.”

Barritt said if they were considering joining as a full plaintiff, then yes, he would agree to a ballot measure. “This is different, but still a form of participation,” he said, “I’m not doing this lightly.”

Barritt added that the school board spent $40,000 challenging the location of the current methadone clinic on Dorset Street without a public vote.

Both Barritt and Riehle’s resolutions passed in a 3:2 vote, with Nowak and Chittenden voting “nay.”

After the resolutions were voted on, some residents left the room abruptly while others expressed their appreciation. The case will be heard July 5 before Judge Geoffrey Crawford.

SOURCE: Corey Burdick, Correspondent