Talks break down over ‘remedy’ in Growler lawsuit

By Jessie Stensland • September 20, 2022 1:30 am
A U.S. Navy EA-18G Growler flies over Afghanistan, Jan. 23, 2020. The EA-18G has the capabilities to perform a wide range of enemy defense suppression missions with the latest electronic attack technology, jamming pods, and satellite communications. (U.S. Air Force photo by Staff Sgt. Matthew Lotz)
A U.S. Navy EA-18G Growler flies over Afghanistan, Jan. 23, 2020. The EA-18G has the capabilities to perform a wide range of enemy defense suppression missions with the latest electronic attack technology, jamming pods, and satellite communications. (U.S. Air Force photo by Staff Sgt. Matthew Lotz)

Talks between the Navy, a Whidbey Island anti-noise advocacy group and the state Attorney General’s Office over an interim remedy in a Growler noise lawsuit haven’t gone well.

Negotiations have broken down, which means the parties will need to submit briefs to the federal judge overseeing the case, according to Citizens of Ebey’s Reserve, commonly known as COER..

“From the get-go, everyone recognized that it was probably going to end up in the court’s hands,” said Bob Wilbur, president of COER.

In addition, COER is requesting that the Navy pay $650,000 in interim attorney’s fees and costs under the Equal Access to Justice Act. The law states that the prevailing party in a lawsuit against the federal government is entitled to fees and costs “unless the court finds that the position of the United States was substantially justified or that special circumstances makes an award unjust.”

In August, a federal judge agreed with the state Attorney General’s Office and COER in portions of a lawsuit against the Navy over the environmental impacts of bringing 36 additional EA-18G Growlers to Whidbey Island Naval Air Station.

In adopting the magistrate judge’s report and recommendation, U.S. District Court Judge Richard Jones ruled that the Navy’s environmental impact study was flawed.

Specifically, Jones agreed with COER’s argument that the Navy erred in failing to give detailed consideration to basing the Growlers at El Centro, California and failing to disclose the basis for greenhouse gas emission calculations.

In addition, the judge agreed with the Attorney General’s Office that the Navy violated the National Environmental Policy Act by not quantifying the impact of Growler noise on classroom learning and not taking a hard look at species-specific impacts on birds.

The magistrate judge’s report accused the Navy of ignoring data that did not support its goal of increasing Growler operations.

The Navy still can appeal parts or all of the decision.

Jones gave the parties 30 days to agree on a remedy or a briefing schedule, which has been extended. An interim remedy would be in place until a permanent solution is ordered, such as a re-do of environmental studies and a new Record of Decision.

Wilbur said COER wanted the Navy to roll back carrier landing practices to what they were before the Record of Decision, which was a quarter of what’s allowed today. He said the Navy refused to reduce training due to national security concerns.

“Without offering even a glimmer of concession on this key issue, the Navy has revealed its ‘good neighbor’ policy is just lip-service propaganda and that it will use national defense to excuse anything it wants,” a COER press release stated.

The Navy, the U.S. Justice Department and the state Attorney General’s Office did not comment on the negotiations.

The next step is for a new briefing schedule to be set up, which will likely call for briefs and responses to be filed in October and November. Each side will argue what it thinks a reasonable remedy would be and then the judge will decide.