Free Response to Cross Motion [Dispositive] - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) CAROL AND ROBERT TESTWUIDE, et ) ) al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) Defendant. )

No.: 01-201L (Honorable Victor J. Wolski)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THEREOF

Dated: May 26, 2006

Jack E. Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 [email protected] Counsel of Record for Plaintiffs

Of Counsel: Kieron F. Quinn Martin E. Wolf Quinn, Gordon & Wolf, Chtd. 102 W. Pennsylvania Avenue Suite 402 Towson, Maryland 21204 (410) 825-2300 Charles R. Hofheimer Kristen D. Hofheimer Hofheimer/Ferrebee, P.C. 1060 Laskin Road, Suite 12-B Virginia Beach, Virginia 23451 (757) 425-5200 Thomas Shuttleworth Stephen C. Swain Lawrence Woodward Charles B. Lustig
Shuttleworth,Ruloff,Giordano&Swain

4525 South Blvd., Suite 300 Virginia Beach, Virginia 23452 (757) 671-6000

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TABLE OF CONTENTS Page(s) INTRODUCTION......................................................................... 1 I. II. STANDARD FOR SUMARY JUDGMENT................................. STANDARDS FOR TAKING OF AVIGATION EASEMENT.......... 2 3 12 12 12 17 22 25 27 32 33 34 37 37

ARGUMENT.............................................................................. III. PLAINTIFFS' TESTIMONY.................................................. A. B. IV. V. VI. VII. Test Case Plaintiffs..................................................... Other Witnesses.........................................................

THE DECLARATION OF COMMANDER RICHARD ERIE HAS NO PROBATIVE VALUE.............................................. STATUTE OF LIMITATIONS............................................... THE F/A-18s CREATED UNPRECEDENTED NOISE.................. PROFFERED TESTIMONY OF SANFORD FIDELL.................... A. B. C. Dr. Fidell's Testimony in Vivian's Island Case..................... Dr. Fidell's Testimony in Testwuide Case........................... Dr. Noral Stewart........................................................

CONCLUSION...........................................................................

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TABLE OF AUTHORITIES Cases Page(s) Aaron v. United States, 160 Ct. Cl. 295 (1963) .........................................................5, 6 Anchor Estates, Inc. v. United States, 9 Cl. Ct. 618 (1986), aff'd 835 F.2d 871 (Fed. Cir. 1987), cert. denied 485 U.S. 989 (1988) .................3 Argent v. United States, 124 F.3d 1277 (Fed. Cir. 1997) ..........................................passim Branning v. United States, 228 Ct. Cl. 240, 654 F.2d 88 (1981)...............................passim Brunner v. United States, ___ Fed. Cl. ___, 2006 WL 1189492 (Fed. Cl.) (2006) ......................................................................................................2 Celanese Corp. & Consol. Subsidiaries v. United States, 9 Cl. Ct. 45 (1985)..................................................................................................................24, 25 Clearwater Constructors, Inc. v. United States, ___ Fed. Cl. ___, 2006 WL 1134478 (Fed. Cl.) (2006) .......................................................................2 Esposito v. United States, ___ Fed. Cl. ___, 2006 WL 800757 (Fed. Cl.) (2006) .....................................................................................................2 Halliday v. United States, 7 Cl. Ct. 315 ( 1985) ........................................................23, 24 McMurray v. United States, 15 Cl. Ct. 323 (1988)....................................................23 Palahnuk v. United States, 70 Fed. Cl. 87 (2006)......................................................2 SRI International v. Matsushita Elec. Corp., 775 F.2d 1107 (Fed. Cir. 1985)........................................................................................................3 United States v. Causby, 328 U.S. 256 (1946)...........................................................passim Vivian's Island, et al. v. United States, COFC # 1:02-cv-00756-RHH .....................passim Yuba Goldfields, Inc. v. United States, 723 F.2d 884 (Fed. Cir. 1983) .....................2 Rules RCFC Rule 56............................................................................................................passim RCFC Rule 37............................................................................................................26

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LIST OF EXHIBITS Exhibit No. Exhibit 1A Exhibit 1B Exhibit 1C Exhibit 2A Exhibit 2B Exhibit 3A Exhibit 3B Exhibit 3C Exhibit 4A Exhibit 4B Exhibit 5A Exhibit 5B Exhibit 6A Exhibit 6B Exhibit 7A Exhibit 7B Exhibit 8A Exhibit 8B Exhibit 9A Exhibit 9B Exhibit 10A Exhibit 10B Exhibit 11A Exhibit 11B Exhibit 12A Exhibit 12B Exhibit 13A Exhibit 13B Exhibit Description Summary of the Deposition Transcript of Betty Capps Excerpts from the Deposition Transcript of Betty Capps Plaintiffs William and Betty Capps's Supplemental Response to Defendant's Interrogatory Number 20 Summary of the Deposition Transcript of Herbert Stokely Excerpts from the Deposition Transcript of Herbert Stokely Summary of the Deposition Transcripts of Herbert and Betty Van Nostrand Excerpts from the Deposition Transcript of Betty Van Nostrand Excerpts from the Deposition Transcript of Herbert Van Nostrand Summary of the Deposition Transcripts of Thomas Askins Excerpts from the Deposition Transcript of Thomas Askins Summary of the Deposition Transcript of Sean Ryan Excerpts from the Deposition Transcript of Sean Ryan Summary of the Deposition Transcript of Eddie Waterman Excerpts from the Deposition Transcript of Eddie Waterman Summary of the Deposition Transcript of James Riddick Excerpts from the Deposition Transcript of James Riddick Summary of the Deposition Transcript of Kenneth Hill Excerpts from the Deposition Transcript of Kenneth Hill Summary of the Deposition Transcript of Eileen May Excerpts from the Deposition Transcript of Eileen May Summary of the Deposition Transcript of Carroll Lindsay Excerpts from the Deposition Transcript of Carroll Lindsay Summary of the Deposition Transcript of Harold Levenson Excerpts from the Deposition Transcript of Harold Levenson Summary of the Deposition Transcript of Michael Leary Excerpts from the Deposition Transcript of Michael Leary Summary of the Deposition Transcript of Sara Hoag (Lynch) Excerpts from the Deposition Transcript of Sara Hoag (Lynch) - iii -

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Exhibit 14A Exhibit 14B Exhibit 15A Exhibit 15B Exhibit 16A Exhibit 16B Exhibit 17A Exhibit 17B Exhibit 18A Exhibit 18B Exhibit 19A Exhibit 19B Exhibit 20A Exhibit 20B Exhibit 21A Exhibit 21B Exhibit 22A Exhibit 22B Exhibit 23A Exhibit 23B Exhibit 24

Summary of the Deposition Transcript of John Shick Excerpts from the Deposition Transcript of John Shick Summary of the Deposition Transcript of Charles Nash Excerpts from the Deposition Transcript of Charles Nash Summary of the Deposition Transcript of Jeffery McCreary Excerpts from the Deposition Transcript of Jeffery McCreary Summary of the Deposition Transcript of Robert Goodwin Excerpts from the Deposition Transcript of Robert Goodwin Summary of the Deposition Transcript of Louis Figari Excerpts from the Deposition Transcript of Louis Figari Summary of the Deposition Transcript of Nancy Darling Excerpts from the Deposition Transcript of Nancy Darling Summary of the Deposition Transcript of Carl Helvie Excerpts from the Deposition Transcript of Carl Helvie Summary of the Deposition Transcript of Bonnie Youngberg Excerpts from the Deposition Transcript of Bonnie Youngberg Summary of the Deposition Transcript of Theodore Dingle Excerpts from the Deposition Transcript of Theodore Dingle Summary of the Deposition Transcript of Kimberly Johnson Excerpts from the Deposition Transcript of Kimberly Johnson Excerpts pertaining to NAS Oceana and NALF Fentress from the Final Environmental Impact Statement for Realignment of F/A-18 C/D Aircraft and Operational Functions from Naval Air Station Cecil Field, Florida to Other East Coast Installations. Record of Decision, May 18, 1998. Excerpts from ATAC Corp., Airfield and Airspace Operational Study, February 18, 1998. Excerpts from Wyle Laboratories, Aircraft Noise Study, February 1998. Air Installation Compatible Use Zones (AICUZ) Program; Operational Naval Instruction (OPNAVINST) 11010.36B, December 19, 2002. Table, Suggested Land Use Compatibility in Noise Zones Excerpted from Air Installation Compatible Use Zones (AICUZ) Program; Operational Naval Instruction (OPNAVINST) 11010.36B, December 19, 2002. - iv -

Exhibit 25 Exhibit 26 Exhibit 27 Exhibit 28 Exhibit 29

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Exhibit 30 Exhibit 31

Excerpts from Aviation Noise Effects, Federal Aviation Administration, March, 1985. Steven Bryant Email to Kieron Quinn regarding the Number of Field Carrier Landing Practice (FCLP) and Touch and Go Operations at Naval Air Station Oceana in 1999, dated May 22, 2006. Emails between Eric Boyajian, ATAC Corporation, and Raymond Firenze regarding "OP COUNT AT NTU/NFE," dated December 2000 Capt. Thomas Keeley letter to Barbara Duke, Planning Department, City of Virginia Beach, dated October 7, 2003 Jack Ferrebee letter to Steven Bryant, dated May 12, 2006. Raymond Firenze Comments to the Virginia Beach Planning Commission regarding "Item #25, Near Post L.L.C.", dated October 28, 2003 "Beach Council Approves Condominium Project," the Virginian Pilot, November 26, 2003 Excerpts from a Power Point Presentation by Captain Thomas Keeley to Virginia Beach City Council, dated March 16, 2004. Spreadsheets Entitled "Test Plaintiffs Coordinates" and "Additional Test Plaintiff Coordinates" prepared by Lisa Matthies, Ecology and Environment, Inc. with data from Dr. Micah Downing, Wyle Laboratories, dated March 31, 2005 and January 30, 2006 respectively. Excerpts from the Deposition Transcript of Sanford Fidell, dated December 16, 2005. Excerpts from Federal Agency Review of Selected Airport Noise Analysis Issues, Federal Interagency Committee on Noise, August, 1992. Email from Dan Cecchini to Shawn Smith and Phillip Logan regarding "RE: Op count at NTU," dated November 27, 2000. CDR. Dirk Hebert email to Alan Zusman dated March 13, 2000. Declaration of Dirk P. Hebert dated March 6, 2002. Excerpts from the Deposition Transcript of Dirk Hebert Defendant's Supplemental Response to Interrogatory Number 3, Dated May 5, 2006 Excerpts from the Deposition Transcript of Stephen Riley Complaint Graphs for Years 1973 through 2000 Steve Bryant letter to Jack Ferrebee, dated May 16, 2006 Declaration of Dr. Noral Stewart, dated May 23, 2006.

Exhibit 32 Exhibit 33 Exhibit 34 Exhibit 35 Exhibit 36 Exhibit 37 Exhibit 38

Exhibit 39 Exhibit 40 Exhibit 41 Exhibit 42 Exhibit 43 Exhibit 44 Exhibit 45 Exhibit 46 Exhibit 47 Exhibit 48 Exhibit 49

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Exhibit 50 Exhibit 51 Exhibit 52 Exhibit 53 Exhibit 54 Exhibit 55 Exhibit 56 Exhibit 57 Exhibit 58 Exhibit 59 Exhibit 60 Exhibit 61 Exhibit 62

Excerpts from the Declaration of Sanford Fidell in Vivian's Island Excerpts from the Report of Sanford Fidell in Vivian's Island, et. al. v. The United States, dated November 25, 2003. Map of Virginia Beach with Test Plaintiff and Non-Test Plaintiff Witness Designations Excerpts from Capt. Thomas Keeley Briefing to Virginia Beach City Council Members, dated November 18, 2003. Glossary of Terminology from the Final Environmental Impact Statement (FEIS) for the Introduction of the FA-18 EF to the East Coast of the United States Daniel Cecchini email to Pamela Anderson, dated January 9, 1996. Excerpt from Air Traffic Control Facility Manual, dated October 1, 2004 Capt. S.E. Benson Memorandum to Office of the Assistant Secretary Capt. S.E. Benson letter to Senator John Warner dated April 30, 1998 John C. Shick Affidavit dated November 24, 1998 Duncan Holaday, Assistant Secretary of the Navy, Memorandum for Deputy Chief of Naval Operations dated December 3, 1997 Alan Zusman Note to Joseph Czech, dated December 12, 1997 Excerpts from the Deposition Transcript of Joseph Czech

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) CAROL AND ROBERT TESTWUIDE, et ) ) al., ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant.

No.: 01-201L (Honorable Victor J. Wolski)

PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THEREOF INTRODUCTION Between December 1998 and June of 1999, the United States Navy moved 156 F/A-18 C/D aircraft from their prior home base in Florida to the smallest master jet base that the Navy possesses, Oceana Naval Air Station. Oceana is located in a densely populated area of Virginia Beach, Virginia. The F/A-18 is the most powerful and the most modern carrier based jet that the Navy possesses. The arrival of the jets caused an enormous increase in noise in the neighborhood surrounding the airfield. Residents of those neighborhoods have recorded levels of noise in their backyard that are at the threshold of pain. The complex story of how the jets came to be at Oceana is more fully set out in the Plaintiffs' Proposed Findings of Uncontroverted Fact in Opposition to Defendant's Motion for Summary Judgment, which is filed contemporaneously with this memorandum. In April 2001, Plaintiffs filed an action seeking class certification of residents whose homes sustained certain high levels of noise. Certification was denied by this

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Court and, as a consequence, approximately 2,000 residents are pursuing individual actions in this case, alleging that their property has been taken in contravention to the United States Constitution. Trial in a test case is scheduled for October 2006. The Government has filed a motion for dismissal or for summary judgment and this memorandum is filed by the Plaintiffs in opposition to that motion. I. STANDARD FOR SUMMARY JUDGMENT A party is entitled to summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." RCFC 56(c); Palahnuk v. United States, 70 Fed. Cl. 87, 90 (2006). The party moving for summary judgment bears the burden of demonstrating that there is an absence of a genuine dispute of material fact, and that he is entitled to judgment as a matter of law. Esposito v. United States, ___ Fed. Cl. ___, 2006 WL 800757 (Fed. Cl.) at p. 3 (2006). To demonstrate a genuine dispute of material fact, the nonmoving party need not present evidence in a form that would be admissible at trial. The moving party, however, must file with the Court the documentary evidence that supports his assertion that the material facts are beyond reasonable dispute. Brunner v. United States, ___ Fed. Cl. ___, 2006 WL 1189492 (Fed. Cl.) at p. 4 (2006). In

analyzing a motion for summary judgment, the Court must interpret the facts and inferences in favor of the non-moving party. Brunner at p. 4; Clearwater Constructors, Inc. v. United States, ___ Fed. Cl. ___, 2006 WL 1134478 (Fed. Cl.) at p. 4 (2006). Inverse condemnation cases, by their nature, are extremely fact intensive and militate against disposition by summary judgment. Yuba Goldfields, Inc. v. United

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States, 723 F.2d 884, 887 (Fed. Cir. 1983); Anchor Estates, Inc. v. United States, 9 Cl. Ct. 618, 621 (1986). This sensitivity is heightened when the bulk of evidence supporting summary judgment is testimony from an expert witness. Anchor Estates at 622. It is particularly inappropriate to foreclose a party's opportunity to cross-examine key expert witnesses. Moreover, this Court has also expressed its concern about foregoing its own opportunity to question expert witnesses in order to understand highly technical testimony in a fact-intensive case. id. As the Court of Appeals cautions in similar cases, "experience has shown that a trial often establishes facts and inferences not gleanable from papers submitted pre-trial." SRI International v. Matsushita Elec. Corp., 775 F.2d 1107, 1116 (Fed. Cir. 1985). II. STANDARDS FOR TAKING OF AVIGATION EASEMENT In the present motion, the Government argues that the elements of Plaintiffs' claims are only set forth in United States v. Causby, 328 U.S. 256 (1946) (Def. Mem. at 22). and also argues that the decisions of this Court in Branning v. United States, 228 Ct. Cl. 240, 654 F.2d 88 (1981), and the Federal Circuit in Argent v. United States, 124 F.3d 1277 (Fed. Cir. 1997), are erroneous and should not be followed. (Def. Mem. at 38 n. 27). The Government also asserts that Branning and Argent do not apply in any event because the course of operations at NAS Oceana does not constitute a burdensome pattern of activity, a concept discussed in both cases. (Def. Mem. at 37-40). The evidence before the Court, however, demonstrates that the loudness of the F/A-18, coupled with the course of flight activity at NAS Oceana, imposes a peculiarly burdensome pattern of activity on the people who live near the airfield. That is particularly true of the Field Carrier Landing Practice ("FCLP") and touch and go flight

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patterns. At the very least, the evidence raises genuine disputes of material fact, which must be resolved in favor of denying summary judgment. In July 2004, at the Court's request, the parties filed briefs in which they set forth the status of the law of inverse condemnation at that time. In their memorandum Plaintiffs traced the development of this area of law from Causby, through Branning and Argent, demonstrating that Causby continues to set forth a valid, but not exclusive, type of taking from flights of military aircraft. Without repeating their prior memorandum, Plaintiffs will summarize their analysis for the Court's convenience. Causby established that an avigation easement could be taken, in the Constitutional sense, by frequent low-level flights of military aircraft over private property. In Causby, the Plaintiff owned a 2.8 acre parcel of land on which he lived and operated a commercial chicken farm. Beginning in 1942, military aircraft began to fly over Plaintiff's property at low altitudes. Plaintiff sued alleging a taking. The United States argued that its aircraft were flying in navigable airspace, both during flight and while in the approved glide path for take offs and landings, and that "when flights are made within the navigable airspace without any physical invasion of the property of the landowners, there has been no taking of property." 328 U.S. at 260 (emphasis supplied). The Supreme Court disagreed with the characterization that the flights were in navigable airspace. At that time, Congress had established minimum altitudes for safe flight for commercial air carriers through the Civil Aeronautics Authority: 500 feet during the day, and 1,000 feet at night, and over areas of dense popultion. 328 U.S. at 263. The Court held that under those facts the glide path for take offs and landings was

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not in navigable airspace, rather it was in Mr. Causby's airspace and such physical invasion of the Causby airspace constituted a taking. In the wake of Causby, courts often mechanically applied a physical-invasion-ofnavigable-airspace analysis as a required element. In 1963, this Court1 recognized that the law was moving beyond the simplistic and mechanical Causby analysis. In Aaron v. United States, 160 Ct. Cl. 295, 300-301 (1963), certain property owners complained of the negative impact on their properties from flight activity entirely within navigable airspace. In holding that the property owners could not recover under those facts, the Court observed the inevitable development of the law to allow such recoveries: It is true that the inconvenience and annoyance experienced from the passage of a plane at 501 feet above a person's property is hardly distinguishable from that experienced from the passage of a plane at, say, 490 feet, but the extent of a right-of-way, whether on the ground or on water or in the air, has to be definitely fixed. Acts that are permissible within the limits of the right-of-way are forbidden beyond its limits, and vice versa. Congress has fixed 500 feet as the lower limit of navigable air space; hence, what may be permissible above 500 feet is forbidden below it, unless compensation is paid therefor. This is not to say that a case could not arise where the unavoidable damage to a person's property occasioned by travel in the navigable air space would be so severe as to amount to a practical destruction or a substantial impairment of it. When such a case arises we would then have to consider whether the relevant statutes and regulations violated the property owners' constitutional rights; but plaintiffs have not made out such a case. id. (emphasis supplied).

1

Plaintiffs' use of the phrase "this Court" is intended to identify the United States Court of Federal Claims under both its current name and prior name, the United States Claims Court, and its predecessor, the United States Court of Claims.

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What the Court predicted in Aaron occurred in Branning v. United States, 228 Ct. Cl. 240 (1981). Branning, decided in 1981, first extended the analysis beyond that of Causby's physical invasion approach. This Court described its decision in this way: The novelty of this decision is in its holding that defendant's use of airspace at altitudes above 500 feet, and independent of landing and takeoff, may be a taking of land beneath if the use is peculiarly burdensome. 228 Ct. Cl. at 242. In Branning, property owners near MCAS Beaufort, South Carolina claimed a taking as a result of the noise from flight training operations, including FCLPs, over their property. According to the Government's own published AICUZ (Air Installation Compatible Use Zones) regulations then in force and the Tracor Report (an acoustical engineering contractor similar to Wyle Labs), plaintiff's property was in a high noise zone regarded as unsuitable for residential use.2 However, the training flights in question were wholly conducted at or above 600 feet, which, the United States argued, precluded liability for a taking under the Causby paradigm. This Court, after a lengthy analysis of existing case law, held: This is a case of first impression in which the court may consider the altitude of flights over the property, but must give primary consideration to the effect of aircraft noise where the Government itself has adopted and published standards of compatibility of use of the subadjacent property. 228 Ct. Cl. at 262 (emphasis supplied). Specifically, the Court relied extensively upon the AICUZ maps, noise contours and similar materials, and held that a taking had occurred as a result of the noise from flight operations even though the flights took place wholly in navigable airspace. Thus, in Branning, this Court formally adopted the noise-

2

Currently, that would be the 65 dB DNL noise zone and above. See Ex. 29.

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impact analysis in avigation easement takings cases that involve particularly burdensome patterns of activity. The shift in focus that began in Branning in 1981 was completed in 1997 with the Court of Appeals' decision in Argent. In Argent, the Court was faced with claims from property owners that the noise and other impacts from the overall pattern of Naval aircraft training at OLF Coupeville in Washington State, including but not limited to FCLPs, constituted the taking of an avigation easement. There, the plaintiffs were not complaining of certain discrete flights that may or may not have passed over their properties at any particular altitude. Rather, the allegations were that noise from the training regimen as a whole, which included flights of unknown altitude over adjacent land, was so intrusive as to substantially affect the use and enjoyment of the plaintiffs' property. Thus, the facts in Argent did not include either element from the Causby paradigm that resulted in a physical invasion: (1) direct overflight, or (2) flights less than 500 feet in altitude. After first describing the Causby case and the factual underpinnings of the decision, the Court of Appeals continued (124 F.3d at 1282-1286) (emphasis supplied): Although federal courts have, by and large, required the facts of a case to match the Causby paradigm before allowing recovery, nothing in Causby or the intervening precedent limits a takings claim to only those facts. Indeed, overflight takings disputes defy per se rules or classification. [citations omitted] Rather, precedent requires, consistent with the purpose of the Takings clause, a remedy for government action that singles out a private landowner to bear a disproportionate burden for a public benefit. [citation omitted] Thus, while the facts, reasoning, and rules of Causby have always guided this corner of takings law, they do not imprison it. * * *

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While physical invasion of private property remains an especially notorious category of takings, [citation omitted] the law is flexible enough to recognize non-invasive Governmental action that nonetheless threatens to destroy the owner's enjoyment of his estate. * * * [W]here, as here, plaintiffs complain of a peculiarly burdensome pattern of activity, including both intrusive and non-intrusive flights, that significantly impairs their use and enjoyment of their land, those plaintiffs may state a cause of action. [citations omitted] The Argents are not before this court to complain of individual flights, which may or may not pass over their property. Rather, they complain of the entire course of operation at OLF Coupeville that entails hundreds of flights per week ­ an allegedly constant source of noise and disruption. If true, this activity is a peculiar burden imposed on the Argents and their neighbors by the United States' selection of a remote site for aircraft training operations. [citations omitted] The Government cannot defeat such a claim merely by pointing out that most of its flights do not pass over the Argents' land. Argent leaves no doubt that physical invasion of airspace is not necessary to state a claim for a taking of an avigation easement. The issue before the Court is whether the course of operations at NAS Oceana since the arrival of the F/A-18s is a "peculiarly burdensome pattern of activity" such that it can constitute a taking without frequent direct overflights at low altitude.3 In both Branning and Argent, FCLPs at the respective airfields was held to be just such a pattern of activity. The Government argues that the entire course of operations at NAS Oceana does not constitute a peculiarly burdensome pattern of activity because: (1) although NAS Oceana conducts FCLPs, it is not a "bounce" field (Def. Mem. at 39); and (2)
3

It should be pointed out that each of the Test Case Plaintiffs have testified under oath to a significant number of direct overflights since the arrival of the F/A-18s. This is also supported by the sworn testimony of a number of witnesses.

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Defendant did not single out these Plaintiffs to bear the burden of exposure to the flight activity. (Def. Mem. at 39-40). Nothing in Branning or Argent necessarily limits a peculiarly burdensome pattern of activity to FCLPs only. The issue is whether the course of operations, whatever that may be, by the specific type of aircraft involved, constitutes a peculiar burden. The answer at NAS Oceana is an unequivocal "yes." First, the number of FCLPs at NAS Oceana is significant in and of itself. Beginning in at least the summer of 1999, one-third of all FCLPs for the entire Oceana community were performed at NAS Oceana 7-10 days per month. (Ex. 42, Email from Cdr. Hebert, March 13, 2000). Although the Government alleges that it does not know the number of actual FCLPs conducted at NAS Oceana for 1999 (Ex. 31, Email from Steve Bryant to Kieron Quinn, May 22, 2006), there were more than 20,000 FCLPs in 2000, the first full year after the arrival of the F/A-18s. (Ex. 32, Emails between Eric Boyajian, ATAC, and Raymond Firenze, December, 2000). Second, the flight characteristics for FCLPs are identical to the flight characteristics for a touch and go. In opposition to the motion for class certification, the Defendant filed the Declaration of Cdr. Dirk Hebert dated March 6, 2002. (Ex. 43, Hebert Declaration, March 6, 2002). Cdr. Hebert was the Air Operations Officer at NAS Oceana from July 1999 until replaced by Cdr. Erie. In his March 6, 2002 declaration, Cdr. Hebert states that "The only difference between the two is that during FCLP landings an observer is present near the touch down point in order to `grade' the landing." (id. at ¶ 8). Nearly all touch and gos performed by the Oceana community are at NAS Oceana. (id. at ¶ 11). Defendant now asserts that there are material differences between

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the flight patterns; that FCLPs have more aircraft in the pattern and longer duration. This blanket assertion, made through a declaration of Capt. Keeley, is contradicted by Cdr. Hebert. At his deposition on July 18, 2002, Cdr. Hebert testified under oath that he personally witnessed "a number of FCLP operations with a single aircraft" and that he could not state that it was more or less common to have more than one aircraft in the FCLP pattern. (Ex. 44, Hebert depos. p. 74-77). Even if Capt. Keeley were correct with regard to the number of aircraft in a given operation and the duration of an FCLP session for a squadron, it is a distinction without a difference for purposes of this case. The sheer number of FCLPs and touch and gos performed at NAS Oceana on a regular basis insures that the tempo and duration will be burdensome, regardless of which pattern is being flown. In discussing the planned FCLP/touch and go activity for 1999 as set forth in the C/D EIS, David Cecchini, a civilian employee in charge of the EIS process, admitted that there would be 300-400 aircraft per day flying the exact same pattern, whether they were part of an FCLP session or a touch and go session. He also candidly admitted that, "The public has no idea what the difference is between the two." (Ex. 41, Email from Cecchini, November 27, 2000). Indeed, Capt. Keeley contradicts himself. Three hundred to four hundred "rock concerts"4 per day flying overhead can hardly be described as anything except a "peculiarly burdensome pattern of activity." Capt. Keeley's newly discovered distinctions between the patterns is a thinly veiled attempt to minimize the impact of touch and go flight activity. The Court sould reject such self-serving rhetoric.

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Capt. Keeley has described the noise from an F/A-18 at 1,000 ft. altitude (the FCLP / touch and go pattern altitude) as the equivalent of a "rock concert" passing overhead. (Ex. 33, Keeley letter, October 7, 2003).

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Moreover, the decision in Argent is significant because it also reversed summary judgment against a group of claimants whose claims had been dismissed on statute of limitation grounds. In this case, the Government has made the same argument; that an avigation easement was "taken" by flight activity from a period more than six years prior to the filing of this case. (Def. Mem. at 21-22). In Argent, this Court entered summary judgment against a group of claimants who lived in the Admiral's Cove neighborhood because the Navy conducted a large number of training flights over that area in 1967 due to combat activity in Vietnam. 124 F.3d at 1285. The Court of Appeals reversed, noting that the government had failed to meet its burden of establishing either the prior easement or the scope of the prior easement. That remaining issue could not be decided simply by looking at the number of flight operations in a given year. Instead, the Court of Appeals held that spikes in activity from a prior year or group of years (1967-1968 as alleged in that case) do not necessarily establish the scope of an easement. 124 F.3d at 1286. The Court also held that the evidence of noisier aircraft post-1986 could also help the Plaintiffs establish a "second taking" and explain why activity levels from the pre-1986 era might not define the scope of an easement. 124 F.3d at 1286-1287. The Government is attempting to repeat what failed in Argent which forces the Defendant to insist that this Court should not follow Argent. Defendant has offered nothing more than gross numbers of operations from 1981. There is no evidence of the number of FCLPs, touch and gos, or any other burdensome flight pattern. There is no evidence of the mix of aircraft at NAS Oceana, the duration of the 1981 flight activity, the patterns flown by each aircraft type, the effect on the property owners in 1981, or any

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other information necessary to prove either that a taking of an easement occurred or the scope of that easement. After five years of litigation and extensive attempts by Plaintiffs to have the Defendant specify its allegation concerning the statute of limitations (See Plaintiffs' Motion for Sanctions, Docket No.148) Defendant waited until its Motion for Summary Judgment to choose 1981, a year never mentioned before in that connection. Subsequently, Plaintiffs specifically requested a breakdown of the aircraft involved and the type and number of operations in 1981 (Ex. 34, Letter from Jack Ferrebee May 12, 2006). Defendant's astounding response is that they do not have this information. (Ex. 48, Letter from Steve Bryant, May 16, 2006). Simply stated, Defendant has provided no evidence to support its claim that a taking occurred in 1981. In fact, Defendant denies even having such evidence. ARGUMENT III. PLAINTIFFS' TESTIMONY The best evidence of the effect of the arrival of the F/A 18s on Plaintiffs' properties is the sworn testimony of the Plaintiffs themselves and others who live near Oceana. In support of their opposition to summary judgment, Plaintiffs have attached excerpts of deposition testimony of Test Case Plaitiffs and witnesses who live nearby. A map depicting the location of each Test Case Plaintiff and each witness referred to below is Exhibit 52. A summary of the pertinent testimony is in the exhibit, followed by the actual pages of the deposition. A capsule of the testimony of each is as follows: A. Test Case Plaintiffs

Betty Capps (Ex. 1A,B,C) Betty Capps and her husband lived in Virginia Beach from 1981 through 2005. Mrs. Capps never had any difficulty or indeed paid any

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attention to the jet noise at her home until after the F/A-18s arrived in 1999. She estimates that of the jets that fly in the general direction of her house, approximately 40% pass directly over her house now. Since the F/A-18s arrived, she cannot conduct phone conversations or hear the television. She also wore earplugs when outside until a doctor told her to stop wearing them because they irritated her ears to the point of bleeding. Vibration has also been a serious problem. Mr. and Mrs. Capps moved to Chesapeake, Virginia in 2005, solely because of the intolerable jet noise. Sara Hoag (Ex. 13 A,B) Ms. Hoag resumed her maiden name of Lynch in August 2003. Ms. Lynch moved into her present home in 1990. Since the arrival of the F/A-18s the jets fly directly over her home "very frequently" both during the day and the evening. If the jets are flying she cannot keep her windows open, cannot hear the television and cannot enjoy her yard or anything outdoors. She is also subject to a great deal of vibration. Ms. Hoag is blind. She cannot listen to her Cds or her books on tape when the jets are flying, despite the fact that she wears headphones when listening to books on tape. Sean Ryan (Ex. 5 A, B) Mr. and Mrs. Ryan have lived at their house since 1996. Before they bought that home they went into the neighborhood 10-15 times and never noticed any objectionable noise. Prior to their present home, they lived on 23rd Street and experienced overflights from both F-14s and A-6s. Starting in the summer of 1999, the noise at their home became "unbearable". They cannot talk on the phone or hear the TV and the noise wakes them up at night. Starting in the summer of 1999, the Ryans estimate that of the flights that fly near their neighborhood 46-48% fly directly over their house.

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Herbert and Betty Van Nostrand (Ex. 3 A, B, C) Mr. and Mrs. Van Nostrand have lived in their present house since 1967, almost forty years. Mrs. Van Nostrand testified that prior to the arrival of the F/A-18s they were comfortable with the location of Oceana and with whatever small amount of jet noise they were subject to. The noise became a major problem in 1999 when the F/A-18s arrived. In the summer of 1999, the noise got really bad. Telephone conversations would have to stop and television could not be heard. Kenneth Hill (Ex. 8 A, B) Kenneth Hill retired from active duty in the Navy and is a civilian employee at the Norfolk Naval Shipyard. The Hills have lived in their home since 1992. They have always heard jets from Oceana but overflights are now an even more regular occurrence. Mr. Hill describes the sound of the F/A-18s as a "thunder". Since the arrival of the F/A-18s no volume control on his television can turn it up loud enough to be heard, and when he is in his yard he has to put his fingers in his ears because it actually is painful. His house has also been subject to a good deal of vibration. Harold Levenson (Ex. 11 A, B) Mr. Levenson is retired. The Levenson's bought their home in 1986. Since 1986 they have been aware of jet noise from Oceana, and the planes have flown near their house when the wind was blowing from a particular direction. Until the arrival of the F/A-18s the jet noise was not "interrupting" or "interfering". Today the pilots fly directly over their house or sometimes 100-400 feet on either side. When the F/A-18s are flying near his property it is difficult to have a conversation or to talk on the telephone or to hear the television. In fact, he uses headsets so that he can watch TV or listen to the radio. Mr. Levenson is also a founding member of CCAJN

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and believes that the F/A-18s have suppressed the natural increase in the value of his property. Eddie Waterman (Ex. 6 A, B) Mr. and Mrs. Waterman moved into their present home in 1993. Mr. Waterman is retired. Prior to the arrival of the F/A-18s the noise from Oceana was bearable and "not bad". Today the aircraft often pass both close by their house and directly over their home. The percent of overflights has increased. Since the arrival of the F/A-18s they cannot conduct a conversation in their yard and cannot continue a conversation on the phone inside their house or hear the radio or television. In addition their home has been subject to vibration. James Riddick (Ex. 7 A, B) Mr. and Mrs. Riddick built their home in 1992. They were unbothered by any jet noise until 1999. At that time Mr. Riddick was outside with his grandson and a plane flew directly overhead. The child was scared by the loudness and they had to go inside the house. Since 1999 their whole house shakes at times, they cannot hear the television and they have to stop talking on the telephone. The number of planes that fly directly over their house has increased since the arrival of the F/A-18s. Mr. Riddick has also replaced all the windows in his home in part to attempt to mitigate the noise. Theodore Dingle (Ex. 22 A, B) Mr. Dingle and his ex-wife purchased their home in Virginia Beach in 1983. Mr. Dingle joined the Navy in 1974 and often was away from home on active duty. During the 1990s, after he separated from his wife, the house at 912 Carolina Avenue was often rented, including for the period when the F/A18s arrived. He states that the noise since the F/A-18s arrived is "extremely noticeable"

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compared to the early 1990s. He describes the "intensity" of the noise level as "vastly increased" from prior to the time that the F/A-18s arrived. Eileen May (Ex. 9 A, B) Eileen May is a widow who has lived in her present home since 1996. She was not bothered by the jet noise at all until the F/A-18s arrived. The jets now fly directly over her house as well as in front and in back of her house. The noise prevents her from enjoying her pool, gardening or doing anything outside. When the jets are flying she has to come inside her house because it's "ear piercing and it's just annoying." Carroll Lindsay (Ex. 10 A, B) Carroll Lindsay and his wife Brenda have lived in Virginia Beach since 1994. Mr. Lindsay testified that the noise became "intolerable" after the arrival of the F/A-18s in the fall of 1998. He cannot even hear his wife when he is trying to talk to her in their yard. The jets fly low over his house, close to the top of the trees, sometimes directly over and sometimes to the left or right of the house. Mr. Lindsay has sought, but has been unable to afford, mitigation measures to his house for the noise. Michael Leary (Ex. 12 A, B) Michael Leary is retired after 20 years active duty in the Navy. Prior to the arrival of the F/A-18s, the Learys and their children had no difficulty with the jet noise, but beginning in 1999 the noise became louder. It was a "dramatic difference". The planes often fly directly over their house or immediately adjacent to it. He describes the effect of the planes when they are operating as "constant bombardment". His home has also been subject to a vibration problem since the F/A-18s arrived.

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B.

Other Witnesses

Thomas Askins (Ex 4 A,B) Thomas Askins has lived at 879 Winwood Drive in Virginia Beach since 1976. He lives near the homes of Plaintiffs Capps and Levenson. He retired as an airline pilot from Trans World Airlines after 32 years and prior to that time he was a pilot in the United States Navy. Both from his service in the Navy and from his living near Oceana for 30 years, he is familiar with the planes that have flown from Oceana including the A-6, the F-4, the F-14 and F/A-18. Starting in 1999 the noise became very loud and "and I mean it's so loud that you just can't function." In his opinion the A-6 and the F-4 were louder than the F-14 but the loudest plane of all is the F/A-18. "I don't know of any airplane that is that loud. Maybe the Concorde." Mr. Askins is not a plaintiff in this case but is a member of CCAJN. John Shick (Ex. 14 A,B) John Shick is a retired Captain in the United States Navy whose home in Virginia Beach is not far from Plaintiff Levenson and is about 1.5 ­ 2 miles from Oceana. He has lived there since the 1980s. In the 1980s his home experienced overflights by both A-6s and some F-14s. He had no complaints about the

noise over his house until the arrival of the F/A-18s. He then purchased a noise meter and has measured the sound level of the F/A-18s C/D when they were flying patterns over his house between 108 and 110 dB. He has also made measurements of the Super Hornets (F/A-18 E/F) in the same location and they are above 120 dB. During the period from late 1998 through mid-1999 as the squadrons of F/A-18s were arriving in Oceana the noise became progressively more disturbing and more annoying, and became an increasing problem "both for the community and noticeably in my home and my

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neighborhood." He was a founding member of CCAJN which was organized prior to the issuance of the Cecil Field EIS. Captain Shick is not a plaintiff in this litigation. Herk Stokely (Ex. 2 A,B) Herk Stokely and his family have lived in their home near Oceana since 1967. Mr. Stokely was a pilot in the Navy in the 1960s and after he left active duty he flew in the Reserves, out of Oceana, mostly in A-4 jets. He has flown all the patterns at Oceana. After active duty he worked as an aeronautical engineer at the Naval Aviation Depot in Norfolk from which he retired. His home is near Plaintiffs Capps and the Levenson. Mr. Stokely is not a plaintiff in this case, but he is a member of CCAJN. The most dramatic noise event that he can recall since 1967, before the arrival of the F/A-18s, was the preparation for the First Gulf War in 1991 which involved constant deployment preparation of A-6 and F-14 aircraft. It was very loud and constant for a relatively short period of time. Mr. Stokely knows that the planes from Oceana fly far outside the patterns because his home is quite distant from the oval FCLP patterns, but planes regularly fly directly over his house and even beyond his house. Despite the fact that the published pattern calls for a maximum altitude of 1,000 feet, he has regularly triangulated the height of planes near his home at 600 - 800 feet. Prior to the arrival of the F/A-18s, almost all FCLPs were flown at Fentress. Although the EIS predicted a very small number of FCLPs at Oceana following the move, in fact, there have been substantial and increasing numbers of FCLPs at Oceana. Indeed Mr. Stokely asked the commanding officer of Oceana, Captain Zobel, why this was happening and Captain Zobel advised that there had already been 20,000 FCLPs flown in Oceana for that year. The planes also fly over his house when they perform touch and go operations. Mr. Stokely regularly works in his garden and uses earmuff

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type noise suppressors. He has purchased a competent decibel meter and has recorded noise levels as high as 117 dB in his yard. Nancy Darling (Ex. 19 A,B) Nancy Darling has lived at her home in Virginia Beach since 1993. Her home is not far from Plaintiffs Hoag (Lynch) and Dingle. Ms. Darling is a plaintiff in this case. Until the F/A-18s, arrived Ms. Darling had little or no difficulty with aircraft noise. She had no problem with phone conversations or being able to watch television or keep her windows open. Her experience changed "significantly and intolerably" when the F/A-18s were moved from Cecil Field. Since then, she cannot keep her windows open, or have a telephone conversation or conduct business outside her home. She cannot sit outside and read or garden or entertain people on the patio when the planes are flying. Sometimes the planes fly directly over her house and sometimes to one side or the other. She purchased a decibel meter and has recorded 123 dB near her home. She is considering selling her home. The only reason she would do so is the recent jet noise. Louis Figari (Ex. 18 A,B) Mr. Figari lives with his wife at a home in Virginia Beach they moved into in December 1991. Mr. and Mrs. Figari live not far from Plaintiffs Dingle and Hoag (Lynch). Mr. Figari is a commercial airline pilot with Continental Airlines and when he was in the Navy he flew the F-4 Phantom. After active duty he stayed in the Naval Reserves for 20 years. He built his present home and before he purchased the lot he paid careful attention to the noise from Oceana. The planes flying out of Oceana prior to the arrival of the F/A-18s were the A-6 and the F-14. His home is not supposed to be near a pattern. Prior to the arrival of the F/A-18s, a plane would fly over his house only very occasionally. After the arrival of the F/A-18s, the

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planes regularly fly directly over his house at a height of 800 ­ 1,000 feet. Since that time it has affected his ability to listen to radio and television and conduct conversations. Carl Helvie (Ex. 20 A,B) Carl Helvie is retired Professor Emeritus at Old Dominion University. For 28 years he lived at 421 Lake Drive in Virginia Beach which is not far from Plaintiffs Dingle and Hoag (Lynch). In December 2000 he moved from his home to Hampton, Virginia solely to get away from the jet noise. Prior to the arrival of the F/A-18s, his home was quiet and only occasionally did he hear jets at all. During the period after the arrival of the F/A-18s, overflights of his house became common and very intrusive. He could not carry on a conversation, talk on the phone, watch television or concentrate on his class work or research. Mr. Helvie is a plaintiff in the case. Kimberly Johnson (Ex. 23 A,B) Kim Johnson lived at 3220 Sugar Creek Drive in Virginia Beach, not far from Plaintiff Kenneth Hill, until 2000. She is a real estate investor and broker and her office was in her home. After the arrival of the F/A-18s she could no longer conduct business because she could no longer talk on the telephone when the planes were flying. Similarly, it was difficult or impossible to do anything outdoors. After the arrival of the F/A-18s, many more planes flew directly over her house. She is also presently chair of CCAJN. The CCAJN board has met on a number of occasions at the Levenson home and she knows from experience that the Levensons suffer loud and frequent noisy overflights. Jeffrey McCreary (Ex. 16 A,B) Mr. McCreary and his wife have lived at 804 Lord Leighton Court since 1996. That address is near Plaintiffs Capps and Levenson. Prior to 1996 they lived in a mobile home community close to Oceana, where they moved in 1976 when Mr. McCreary was an Aviation Administration Maintenance Technician at

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Oceana. In 1996 they moved to their present address specifically to get away from the noise and to move to a quiet neighborhood. They researched the neighborhood using maps in the library, talked to people in the neighborhood and rode their bicycles in the area. It was a quiet neighborhood until the arrival of the F/A-18s. However, planes are now flying directly over and adjacent to their home, which had not happened before, and the effect is extremely disturbing. They have replaced all of the windows in their home and largely given up gardening which both Mr. McCreary and his wife enjoy a great deal. Charles Nash (Ex.15 A,B) Charles Nash retired from the Navy after 22 years. He was a crew member on various patrol aircraft. When he and his family moved into their home in 1993, he reviewed an AICUZ map and determined that his home was on the outer fringes of the lowest noise zone. Between 1993 and the arrival of the F/A-18s, the noise didn't bother the Nashes. After the arrival of the F/A-18s the noise became extremely intrusive and they have replaced all of the windows in their house and added insulation to their attic. The F/A-18 is much louder than the F-14 and its noise is "piercing" ... "The F/A-18 hurts." The F/A-18 is also a good deal louder than the A-6. Mr. Nash is a plaintiff in the present litigation. He lives near Test Case Plaintiffs Lindsay and Capps. Robert Goodwin (Ex. 17 A,B) Robert Goodwin spent 20 years on active duty in the Navy and then worked as a civilian with the Navy. He has lived in Virginia Beach for 29 years, near Plaintiff Levenson. The noise from Oceana aircraft became louder and louder over the period of 1998-1999 as the F/A-18 squadrons moved in. He experiences some direct overflights over his home. Between 1999 and 2002, Mr. Goodwin replaced all of the windows in his home. He rates the F/A-18 as the noisiest Naval aircraft.

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Bonnie Youngberg (Ex. 21 A,B) Bonnie Youngberg is a psychotherapist in Virginia Beach. From 1997 through 2002, she lived at 913 Earl of Essex Arch, not far from the Capps and the Levensons. After the arrival of the F/A-18s, the noise became so upsetting and intrusive that she sold her house. Planes were flying directly over her home, and so low that she could look directly up and see the "belly of the plane." She has also seen the planes fly directly overhead when she has been at Lynnhaven Mall which is even further outside the theoretical flight patterns than Ms. Youngberg's home. IV. THE DECLARATION OF COMMANDER RICHARD ERIE HAS NO PROBATIVE VALUE Throughout its memorandum, Defendant relies extensively on the declaration of Commander Richard S. Erie (Erie Decl., Exh. D to Def.s Mem) to make factual assertions about historical aircraft operations and noise at test plaintiffs' properties. See Def. Mem. at 11-17, 36-37. Cdr. Erie served as Assistant Air Operations Officer at NAS Oceana between August 2003 and January 2006, then as Operations Officer from January 2006 to the present. Erie Decl. at 1. Therefore, Erie did not serve as an operations officer at any time relevant to this case. Erie begins his declaration with a hypothetical assertion that [t]he runway in use at NAS Oceana at any given time, including at any given time during July 1999, would have been a function of the winds at the time". id. at 3 (emphasis supplied). Despite the fact that Erie does not demonstrate any personal knowledge of aircraft operations at test plaintiffs' properties during 1999, his declaration purports to address the relationship of flight operations to each of the 12 test plaintiffs' properties at the time of the alleged taking in July 1999. id. at 8. Erie couches his supposed factual assertions with language that demonstrates his lack of personal knowledge. With respect to each of the Test Case plaintiffs' properties,

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Erie speculates on what jet operations and overflights would have or may have occurred.5 Conspicuously, Erie fails to state that he has personal knowledge relating to operations and overflights which actually occurred in 1999. Because Erie lacks personal knowledge regarding overflights and operations at the relevant time, because his vague factual assertions contain numerous opaque suggestions about what would have and may have happened at test plaintiffs' properties, and because Erie is not legally competent under RCFC 56 (e) to make even the conclusory assertions contained in his affidavit, his declaration has no probative value for summary judgment purposes and the Court should decline to consider it. According to RCFC 56(e), an affidavit, or declaration, must satisfy a three-prong test to merit consideration for summary judgment: [s]upporting and opposing affidavits shall be made upon personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein. This Court, interpreting the predecessor to RCFC 56(e), has required that affidavits in support of summary judgment comply with all three prerequisites and held that affidavits that fail to satisfy the foregoing three-prong test of Rule 56(f) have no probative value in deciding a summary judgment motion. McMurray v. United States, 15 Cl. Ct. 323, 331-332 (1988) Similarly, in Halliday v. United States, 7 Cl. Ct. 315, 322( 1985) this Court held that an affidavit filed in support of summary judgment was not in Erie's use of this speculative language is too numerous to recite seriatim. Erie's analysis of each property contains numerous examples of what would have occurred, not what did occur. His analysis of one property, Theodore Dingle, is a good example . When runway 23 L/R was in use it would not have been unusual for aircraft to have flown within one half mile of the property, id. at 10. When runway 5L/R was in use, the track for departure would not typically be closer than 1-2 miles to the Dingle property. id at 10. When runway 14L/R was in use, aircraft may have flown within approximately mile laterally of the Dingle property. id. at 10
5

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compliance with Rule 56(e) where the affidavit did not show affirmatively that the affiant is competent to testify to the matters stated therein. Additionally, the court refused to consider an affidavit asserting that there was no discrimination against Halliday because the affidavit does not show that he (the affiant) knows the circumstances, id., regarding the treatment of those similarly situated to Halliday. In Celanese Corp. & Consol. Subsidiaries v. United States, 9 Cl. Ct. 45, 48-49 (1985), this Court found that a lengthy affidavit did not meet the requirements of Rule 56(e) because the affidavit did not show that he (the affiant) has personal knowledge of the events set forth in each of the 237 paragraphs contained in the affidavit. The court emphasized that an affidavit is deficient where it recites facts about transactions and events in which, apparently, he did not participate. id. Reliance on such affidavits to prove undisputed facts is simply inappropriate where the the submissions to which the affiant attests are replete with hearsay, relating a chronology beyond his personal knowledge and about which his knowledge was acquired= from other than personal participation. id.. This Court should likewise decline to consider Erie's declaration because it fails to meet the requirements of RCFC Rule 56(e) and case law. Erie's declaration is fatally flawed in several respects. First, Erie's allegations concerning operations and overflights at Oceana in 1999 are clearly not based on his personal knowledge because he has been an air operations officer at Oceana only since August 2003. Second, as in Celanese, Erie=s declaration recites facts about transactions and events in which, apparently, he did not participate. Celanese, 9 Cl. Ct. at 49. If Erie had actively participated in events sufficient to trigger personal knowledge of overflights and

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operations in 1999, he would have made factual allegations about what operations actually occurred, not about operations which would have or may have occurred. Finally, as in Celanese, Erie's declaration is replete with hearsay, relating a chronology beyond his personal knowledge and about which his knowledge was acquired from other than personal knowledge. id. Because Erie's declaration regarding operations and overflights at test plaintiffs' properties in 1999 fails to meet each of the three prerequisites for admissibility prescribed by Rule 56(e), it has no probative value and the court should not consider it to support Defendant's motion for summary judgment. V. STATUTE OF LIMITATIONS The Government alleges that if a taking of an avigation easement occurred, it occurred at these properties at least as early as 1981 ... . Def. Mem. at 17. Defendant filed its Motion for Summary Judgment and accompanying memorandum on April 28, 2006. This document for the first time specified that the government alleges that the statute of limitations began to run on Plaintiffs' properties in 1981. On May 5, one week after filing for summary judgment, Defendant finally responded to Plaintiffs' interrogatory relating to the statute of limitations, first propounded almost five years earlier, and served its Supplemental Response to Interrogatory 3. (Ex. 45). For almost five years, as more fully spelled out in Plaintiffs' Motion for Sanctions and supporting Memorandum, filed with this court on February 23, 2006 (this motion is still pending before the Court), Plaintiffs had repeatedly sought to elicit precisely this information through formal and informal means. The Government repeatedly refused to provide any information relating to its statute of limitations defense on the grounds that it needed to conduct "further discovery" in order to determine what noise level each test

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case plaintiffs' property was exposed to during years prior to the relocation of the F/A 18's to NAS Oceana in 1999. See, e.g., Exh. I to Defendant's Mem. in Support of Motion for Sanctions. Yet, the Government's statute of limitations argument in its summary judgment pleadings has absolutely nothing to do with noise exposure experienced by the Test Case Plaintiffs or by any individual properties. Instead, Defendant relies exclusively on the absolute (and far from certain) number of aircraft operations purportedly occurring in 1981 as contrasted with 1999. According to Defendant, the statute of limitations began to run "at least as early 1981 when aircraft operations far exceeded the operations in July 1999. (Def. Mem. at 17). Similarly, the Government states that Defendants recorded aircraft operations at NAS Oceana with respect to the test case plaintiffs' properties reflect far higher aircraft operations in 1981 than in July 1999. (Def. Mem. at 21). Thus, the Government clearly acted in bad faith in refusing to answer statute of limitations interrogatories for five years under the false pretense that it needed further discovery from each Plaintiff in order to assess the noise levels experienced by test case plaintiffs in earlier years. In fact, Defendant's statute of limitations argument is based on information - total aircraft operations at NAS Oceana in 1981 and 1999 - requiring no discovery by Defendant and wholly within the control of NAS Oceana officials who recorded this data. Defendant's disingenuous tactics provide additional reason for the court to strike Defendant=s statute of limitations defense pursuant to both RCFC 37 and its inherent power to sanction discovery misconduct.6 Alternatively, because of

Additionally, as delineated elsewhere in this memorandum, Defendant cannot even begin to establish that a taking occurred in 1981. Defendant has offered no breakdown of operations for 1981, no evidence of the type of the aircraft performing those operations, and no evidence of the effect of operations on Plaintiffs' properties. In fact it denies even having the information. In short, Defendant has fallen well short of - 26 -

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Defendant=s dilatory tactics, the court should decline to hear any summary judgment argument pertaining to this issue. VI. THE F/A-18s CREATED UNPRECEDENTED NOISE Plaintiffs' claim that the arrival and subsequent operations of the F/A-18s in 1998 and 1999 imposed an enormous burden on the neighborhoods surrounding Oceana does not rest solely on the sworn testimony of Plaintiffs and non-test-case witnesses. The Navy knows full well that a tidal wave of noise has engulfed Virginia Beach. On November 18, 2003, Captain Thomas Keeley, the Commanding Officer of NAS Oceana at the time, appeared before the Virginia Beach City Council to brief Council members on AICUZ recommendations for compatible residential development near Oceana. Captain Keeley, contrary to his 2006 declaration, described the expected noise at the site to be at the level of 110 db, a level he analogized to "a rock concert". (Ex. 53, Keeley Briefing, November 18, 2003, p. 12). Raymond Firenze echoed that description when he appeared on October 28, 2003 before the Virginia Beach Planning Commission in opposition to the residential development of a piece of property 2.5 miles northeast of Oceana. He reported that 102,000 of the total 218,000 annual operations at Oceana in 2002 passed over the property, exposing it to 114 dB at an altitude of 800 feet, 4 decibels over the noise level of a rock concert. (Ex. 35, Firenze comments to Virginia Beach Planning Commission, October 28, 2003). In another appearance before the Virginia Beach City Council, Captain Keeley again described the anticipated noise over a proposed development to be up to 114 db, 102,000 times a year, roughly equivalent to "100,000 rock concerts" over the property. (Ex. 36, Virginian Pilot, November 26, 2003, meeting its summary judgment burden of proving beyond material, factual dispute that a taking occurred in 1981.

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Hampton Roads Section, p. 19). On March 16, 2004, Captain Kee