Magistrate recommends against COER injunction

A federal magistrate judge is recommending that a U.S. District Court judge deny a request by an advocacy group to force the Navy to halt the increased EA-18G Growler operations at the Outlying Field Coupeville.

In February, Citizens of Ebey’s Reserve, or COER, filed the motion for injunction as part of the ongoing lawsuit against the Navy over the noise impacts of a 400 percent increase of Growler aircraft landing practice at the small, rural airfield.

The state Attorney General and COER challenged the adequacy and accuracy of the Navy’s Environmental Impact Statement.

The magistrate found that COER’s motion didn’t meet the elements necessary for the injunction.

The judge isn’t required to follow the magistrate’s recommendation. COER has 14 days to reply to the magistrate’s report.

The magistrate called an injunction “an extreme remedy” that would entangle the court in the Navy’s day-to-day operations.

As COER pointed out, a decision on the injunction doesn’t impact the larger claims regarding compliance with the National Environmental Policy Act and the Historic Preservation Act.

“We always knew that the likelihood of obtaining a preliminary injunction was an extremely high mountain to climb,” COER President Robert Wilbur said in a press release.

“The U.S. Supreme Court has severely limited courts’ abilities to enjoin the military,” he continued.

“We pursued a preliminary injunction, knowing we were unlikely to prevail, because our communities are suffering from expanded Growler training over our homes, businesses, schools and the hospital,” Wilbur said in the press release.

Yet J. Richard Creatura, the magistrate judge, did comment on the merits of arguments made by COER and the attorney general in the underlying court case, writing that “they fall within an area where the Court must be highly deferential to the Navy’s choices.”

Creatura explained that the U.S. Supreme Court ruled that the Department of Defense should be given deference in matters of military operations because of the public interest in national security.

In reference to the preliminary injunction, Creatura wrote that COER hasn’t shown in the early stages of the lawsuit that it is likely to prevail.

“In fact, plaintiffs have not discussed any case, and the Court has not found any,” Creatura wrote, “where a court has granted a preliminary injunction countermanding a Department of Defense decision concerning military operations affecting the national security under similar circumstances and where that court’s ruling was not overturned.”

Creatura noted that he had reviewed classified material and that the inclusion of such evidence gives COER “a distinct disadvantage by not being about to review” the secret files.

The magistrate also found that COER’s evidence about the impacts of Growler noise falls short of establishing the kind of imminent harm that cannot be remedied through an award of damages.

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