Free Supplemental Brief - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CAROLE AND ROBERT TESTWUIDE, ) et. al., ) Plaintiffs,

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THE UNITED STATES, Defendant. ) ) ) No. 01-201 L Honorable Victor J. Wolski

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DEFENDANT'S SUPPLEMENTAL PRIVILEGE LOG Pursuant to the Court's Orders filed April 20, 2006, and April 26, 2006, Defendant United States of America hereby files its Supplemental Privilege Log. To facilitate review of the supplemental log, Defendant also included the following: Attachment 1 to Supplemental Privilege Log, Attachment 2 to Supplemental Privilege Log, a list of attorneys and their positions, and a list of non-attorneys and their positions. In addition, during Defendant's review of the documents that were submitted to the Court for in camera review, Defendant became aware that an attachment to one of the documents, OCE213638-39, had inadvertently neither been produced to the Plaintiffs or determined to be privileged and placed on a privilege log. Defendant is reviewing this attachment, and expects to be able to inform the Court and Plaintiffs by close of business Wednesday, May 3, 2006, whether it believes the attachment is privileged. If Defendant determines it is privileged, Defendant will provide a supplemental privilege log to the Court and Plaintiffs. Conversely, if Defendant determines the document is not privileged, it will produce the document to Plaintiffs. Dated: May 2, 2006 /s/Steven D. Bryant by s/Kelle S. Acock Steven D. Bryant

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Kelle S. Acock Environmental & Natural Resources Division United States Department of Justice 601 D Street, NW, Rm. 3205 Washington, D.C. 20004 Counsel for Defendants Of Counsel: Robert J. Smith Mary Raivel Navy Litigation Office 720 Kennon Street Washington Navy Yard, D.C. 20374 CDR Dominick Yacono JAGC, USN Commander Navy region Mid-Atlanic, Code (00LE) 1510 Gilbert Street Norfolk, VA 23511-2737

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SUPPLEMENTAL PRIVILEGE LOG

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Case 1:01-cv-00201-VJW

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ATTACHMENT 1 TO SUPPLEMENTAL PRIVILEGE LOG

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ATTACHMENT 1 TO SUPPLEMENTAL PRIVILEGE LOG Attachment to OCE213647. This attachment and the cover e-mail to which this document is an attachment (OCE213647, which is separately listed later in this supplemental privilege log), was provided to Mr. Mora, the General Counsel of the Navy, because his responsiblities as the senior attorney in the Navy included responsibility for significant litigation involving the Department of the Navy. This document was provided to Messrs. Turnquist and Borro because their primary client, the Assistant Secretary of the Navy (Installations & Environment), is the senior official in the Department of the Navy with responsiblity for environmental matters, including responsibility for NEPA documents such as the F/A-18 E/F East Coast basing EIS. This document was provided to Commander Foster because of his responsibilities for dealing with elected officials related to matters involving the Department of the Navy, and in light of the likely interest in the issues addressed in this communication on the part of both local and federal elected officials representing the area where NAS Oceana and Naval Auxiliary Landing Field Fentress are located. This document was provided to Captain Houck because his client, Commander-in-Chief, U.S. Atlantic Fleet, has responsibility for the aircraft and installations, including NAS Oceana and NALF Fentress, that are involved in both this litigation and in the F/A-18 E/F East Coast basing EIS. This document was provided to Mr. Zusman because of his ongoing role as the Navy's principal expert on aircraft noise and land use planning, including working with Navy and Department of Justice counsel in connection with this litigation, and in working on aircraft noise and related issues in connection with the F/A-18 E/F East Coast basing NEPA EIS, Messrs. Brookshire, Smith, Jung, Shuey and Ms. Evans are copied because they were trial attorneys working on this litigation. Mr. Holaday was copied because as Deputy Secretary of the Navy (Installations & Facilities), he signed the Record of Decision that relocated F/A-18 C/D squadrons to NAS Oceana from NAS Cecil Field pursuant to BRAC 1995, and therefore had a continuing responsibility for matters related to any litigation related to that decision, including this litigation, and because he was anticipated to be the likely decision-maker for the F/A-18 E/F East Coast basing EIS. Captain Brady and Commander Yost were copied because of their expertise in and knowledge of dealing with the media, critically important given the subj ect matter of the communication. This document was provided to Commander Laverdiere and Lieutenant Commander Kraft because their client (OPNAV N45) has been delegated the authority by the Chief of Naval Operations for policy, oversight, and compliance for Navy environmental protection, including environmental compliance with statutes such as NEPA.

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ATTACHMENT 2 TO SUPPLEMENTAL PRIVILEGE LOG

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ATTACHMENT 2 TO SUPPLEMENTAL PRIVILEGE LOG In addition to a number of the individuals identified in the attorney comments block for OCE213648-49 (directly above), to whom this communication was provided in light of their responsibilities as outlined in the attorney comments block for that document, this communication was also provided to attorney John Noel, a senior trial attorney in the Navy Litigation Office, and the following other non-lawyer individuals: Kim DePaul, who was at the time the head of environmental planning in the OPNAV45 office (OPNAV N45 is the uniformed official who has been delegated authority by the Chief of Naval Operations for policy, oversight and compliance for Navy enviommental protection, including environmental compliance with statutes such as NEPA), and thus had responsibility in that office for NEPA planning and compliance; Commander Bret Muilenburg, who worked in the office within the Chief of Naval Operations organization that was responsible for military construction and planning, including land use planning, and was heavily involved in working on the F/A-18 E/F East Coast basing EIS, and Dan Cecchini, who was the project manager for the F/A-18 E/F East Coast basing EIS, who is copied on this communication because of his overall responsibility for that document and matters related to it, including the support by Wyle Laboratories for the EIS.

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LIST OF ATTORNEYS TO ACCOMPANY SUPPLEMENTAL PRIVILEGE LOG

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Attorneys Alberto J. Mora

Alison D. Ling

Carl J. Turnquist AKA John Turnquist

Charlotte Wise Christopher D. Jung David Shuey LT FIo Yuzon

Position General Counsel of the Navy. Assistant Secretary of the Navy, Installations & Environment Counsel's Office. Ms. Ling's specific area of expertise was the Clean Air Act. Mr. Turnquist was the chief counsel in the office of the Assistant Secretary of the Navy, Installations & Environment. His title was Assistant General Counsel (Installations & Environment). Executive Assistant and Special Counsel, Navy General Counsel. Captain Wise was Mr. Mora's Executive Assistant, and often participated in meetings with the General Counsel on various topics. Trial Attorney, Navy Litigation Office Trial Attorney, Department of Justice Station Judge Advocate (Commanding Officer's attorney), NAS Oceana

Navy Associate General Counsel (Litigation) and Director, Navy Litigation Office. Assistant Section Chief, Environment & Natural Resources Division, Department of James Brookshire Justice Environmental Counsel, Commander-in-Chief James Lang 'U.SI Atlantic Fleet Fleet Judge Advocate (i.e., the Fleet Commander's attorney), Commander in Chief James W. Houck U.S. Atlantic Fleet John D. Noel Senior Trial Attorney, Navy Litigation Office Counsel's Office, Commander-in-Chief, U.S. Jude L. Klena Atlantic Fleet Julia Evans Trial Attorney, Department of Justice Navy Office of Legislative Affairs Kirk A. Foster Chief counsel, OPNAV Code N45. N45 is the office in the Chief of Naval Operations organization responsible for coordinating environmental planning and compliance for the uniformed Navy. Marc G. Laverdiere Mark Wilkoff Deputy Director, Navy Litigation Office Michael E. McGregor Counsel, Navy Office of Legislative Affairs Robert J. Smith Senior Trial Attorney, Navy Litigation Office Assistant Secretary of the Navy, Installations Ronald Borro & Environment counsel's office Environmental Team Chief, Navy Litigation Steve Banks Office. Fred Phelps Navy Principal Deputy General Counsel. Mr. Kranz held the second-highest position in the Navy General Counsel's office at the time.

Thomas Kranz

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Tim Braue

Todd M. Kraft

William Molzahn

Department of Justice Deputy Counsel, OPNAV Code N45. N45 is the office in the Chief of Naval Operations organization responsible for coordinating environmental planning and compliance for the uniformed Navy. LCDR Kraft was CDR Laverdiere's deputy. Navy Deputy General Counsel. Mr. Molzahn was the senior career civil servant in the Navy Office of General Counsel and held the third highest-ranking position in the organization at the time.

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LIST OF NON-ATTORNEYS TO ACCOMPANY SUPPLEMENTAL PRIVILEGE LOG

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Non-Attorneys

Alan F. Zusman Dan J. Cecchini

Duncan Holaday

Everett Douglas

Fred E. Pierson

Geral Long

Position Deputy Director for Planning, Naval Facilities Engineering Command. Mr. Zusman was also the Air Installations Compatible Use Zone (AICUZ) Program Manager for the Chief of Naval Operations, and was intimately involved with aircraft noise analyses for both AICUZ studies and other studies related to aircraft noise, including NEPA documents. As the Navy's principal advisor on aircraft noise and land use planning, Mr. Zusman was also the primary interface between Wyle Laboratories as the Navy's consultant and the Navy officials on projects Wyle was performing. F/A-18 E/F East Coast basing Environmental Impact Statement (EIS) project manager. Deputy Assistant Secretary of the Navy (Installations & Facilities). Mr. Holaday's responsibilities included the F/A-18 E/F East Coast basing EIS, for which Mr. Holaday was anticipated to be the final decision-maker. Navy's Aircraft Environmental Support Office (AESO). AESO provided support to, among other things, Clean Air Act analyses done in conjunction with Environmental Impact Statements and other NEPA analyses. Deputy project manager, F/A-18 E/F East Coast basing EIS. Mr. Pierson was Mr. Cecchini's deputy for this project. Had oversight responsibility for the noise study done by Wyle Laboratories in conjunction with the F/A-18 E/F East Coast basing EIS. Wyle Laboratories has been the Navy's principal consultant on aircraft noise issues since the early 1990s, and was working on the F/A-18 E/F East Coast basing EIS as an integral part of the team preparing the NEPA analysis. Wyle was also involved at that time in providing litigation support to the Navy in conjunction with this case in its :original iteration, i.e., as part of the plaintiffs' efforts to have the case certified as a class action. Office of Legislative Affairs office, Assistant Secretary of the Navy, Installations and Facilities. Public Affairs Office, Commander-in-Chief, U.S. Atlantic Fleet. Commander Yost was the Deputy Public Affairs Officer for the Fleet. Deputy Chief of Naval Information (CHINFO). CHINFO is the head Public Affairs Officer for the Navy.

Ginger B. Rice

Jacqueline Yost

Joseph F. Gradisher

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Kathy Reed Kimberly B. DePaul

Ms. Reed, a Navy Lieutenant Commander, was the Director, Installation Management in the office of the Assistant Secretary of the Navy (Installations & Environment) and also worked very closely with Duncan Holaday as his military assistant. Chief of Environmental Planning at OPNAV N45. Mr. Coffer worked with Everett Douglas at AESO on providing support to the Navy's Clean Air Act analyses for NEPA documents, including the F/A18 E/F East Coast basing EIS. Engineer at Wyle Laboratories who worked on the noise study done by Wyle Laboratories in conjunction with the F/A-18 E/F East Coast basing EIS. Wyle Laboratories has been the Navy's principal consultant on aircraft noise issues since the early 1990s, and was working as an integral part of the team preparing the NEPA analysis. Wyie was also involved at that time in providing litigation support to the Navy in conjunction with this case in its original iteration, i.e., as part of the plaintiffs' efforts to have the case certified as a class action. Captain Brady was the Public Affairs Officer, Commander-in-Chief, U.S. Atlantic Fleet. CDR Yost (see above) was Captain Brady's deputy. Secretary and scheduler for Alberto Mora, General Counsel of the Navy. Staff Officer on staff of Commander-in-Chief, U.S. Atlantic Fleet assigned to work on F/A-18 E/F East Coast basing NEPA process. Branch Head for Environmental Readiness and Planning, OPNAV N45. Mr. Tickle is the principal advisor for all matters related to environmental compliance to the Director, Environmental Readiness Division, on all matters relating to environmental planning and compliance for OPNAV N45, the uniformed official who has been delegated authority by the Chief of Naval Operations for policy, oversight and compliance for Navy environment protection, including environmental compliance with statutes such as NEPA. Secretary and scheduler for Duncan Holaday, Deputy Assistant Secretary of the Navy (Installations & Facilities). Deputy for Shore Installations, Commander-inChief, U.S. Atlantic Fleet.

Lyn P. Coffer

Micah Downing

Michael Brady Michelie K. Paynter Phillip Logan

Ronald E. Tickle

Ruby L. Killebrew Thomas Crabtree