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Citizens of the Ebey’s Reserve (“COER”) Litigation Update

In conjunction with the National Environmental Policy Act (“NEPA”) lawsuits brought by the State of Washington and COER against the US Navy for its Growler Expansion plan at NAS Whidbey Island, COER filed a preliminary injunction action early in 2020. This action sought to limit Growler training to pre-expansion levels pending the outcome of the NEPA suits. Pleadings in the preliminary injunction action were completed and the filing submitted to Federal Judge Jones for decision at the end of March 2020. At that time we anticipated that the Judge would make a decision by the end of May 2020. Then COVID happened and everything in the federal court system slowed dramatically.

It was not until July 22, 2020 that the federal magistrate assisting him submitted a recommendation to Judge Jones that COER’s request for a preliminary injunction be denied. The magistrate made clear that he was not saying that the underlying NEPA suits were without basis, but rather that at this point in the proceedings, given U.S. Supreme Court decisions favoring the military, that it was premature for the court to enter an injunction. COER always knew that obtaining a prelim injunction would be almost impossible given how the Supreme Court has skewed litigation in the military’s favor. Nevertheless, given the tremendous impact the expanded Growler training regime was having upon the citizenry and the environment, COER felt the need to use every tool available to try to bring some relief to this crisis situation. The magistrate’s recommendation to Judge Jones is just that, however, a recommendation.

On August 5, 2020, COER filed a lengthy objection to the magistrate’s recommendation and asked for an oral hearing before Judge Jones on its prelim injunction action. On that same day COER also filed a motion for leave to supplement the preliminary injunction record because the magistrate raised issued in the Navy’s defense that the Navy had not raised on its own. A hearing was also requested with regard to that motion. On August 17, 2020 the Navy filed a response to COER’s motion for leave to supplement; the Navy has not yet filed a response to COER’s objection to the magistrate’s recommendation. Whether the judge holds a hearing or not on these issues is entirely within his discretion and given the court slowdown due to the pandemic it is completely unclear as to when any decisions will be made with regard to these preliminary injunction matters.

With regard to the underlying NEPA lawsuits, the briefing schedule is dependent upon when a final decision is entered in the preliminary injunction action.

COER also filed suit against the Navy earlier this year to compel the Navy to comply with numerous Freedom of Information (“FOIA”) requests related to the Growler issue. That suit was recently settled. Although the Navy did not accept liability for its failures, it did ultimately provide responsive answers and reimbursed COER’s attorneys fees with regard to compelling FOIA responses.

COER is also aware that there are other lawsuits currently ongoing against the Navy with regard to the Growler presence in the Salish Sea region. There are suits by homeowners for compensation for the damage Growler training has caused to property values. Additionally, the State of Washington is threatening to sue the Navy over its plan to harm marine mammals in its NWTT EIS (Northwest Training and Testing Environment Impact Statement) currently being conducted.

All of these lawsuits are an essential part of the long term fight to bring the Navy back under civilian control and to get our political leaders to understand the harm that unbridled military training is having upon civilian populations and our environment. Congress has provided the military with millions of dedicated acres for military reserves. That is where this training should take place, not over our homes, schools, hospitals, business and our very rare and fragile Salish Sea environment.

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