Free Response to Motion - District Court of Federal Claims - federal

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 1 of 17

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

No. 01-201 L Judge Wolski

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND DEFENDANT'S MOTION FOR PROTECTIVE ORDER

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 2 of 17

TABLE OF CONTENTS INTRODUCTION ..........................................................................................................................1 ARGUMENT ..................................................................................................................................5 I. THE REDACTED MATERIAL IN THE DOCUMENTS AT ISSUE IS PRIVILEGED AND IMMUNE FROM DISCOVERY .........................7 QUESTIONS AT THE CZECH AND ZUSMAN DEPOSITIONS SEEK PRIVILEGED INFORMATION ...............................................................10

II.

CONCLUSION .............................................................................................................................12

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 3 of 17

TABLE OF AUTHORITIES CASES Energy Capital Corp. v. United States, 45 Fed. Cl. 481 (2000) ........................................................................................................6 Hickman v. Taylor, 329 U.S. 495 (1947) ............................................................................................................7 In re Bieter Co., 16 F.3d 929 (8th Cir. 1994) .................................................................................................6 McCaugherty v. Sifferman, 132 F.R.D. 234 (N.D. Cal. 1990) ........................................................................................6 Sparton Corp. v. United States, 44 Fed. Cl. 557 (Fed. Cl. 1999) ..........................................................................................7 Swidler & Berlin v. United States, 524 U.S. 399 (1998) ............................................................................................................5 Upjohn Co. v. United States, 449 U.S. 383 (1981) ............................................................................................................7 Zenith Radio Corp. v. United States, 764 F.2d 1577 (Fed. Cir. 1985) ...........................................................................................7 OTHER AUTHORITIES John E. Sexton, A Post-Upjohn Consideration of the Corporate Attorney-Client Privilege, 57 N.Y.U.L. Rev. 443 (1982) .............................................................................6

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 4 of 17

APPENDIX OF EXHIBITS

Exhibit No. A

Exhibit Letter from Steven D. Bryant to Jack E. Ferrebee, dated October 8, 2005, Re: Motion to Compel Declaration of Ronald J. Borro Documents (Certain Portions Previously Redacted Now Unredacted) Revised Privilege Log, dated October 28, 2005

B C

D

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 5 of 17

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

No. 01-201 L Judge Wolski

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND DEFENDANT'S MOTION FOR PROTECTIVE ORDER INTRODUCTION Plaintiffs filed their motion to compel pursuant to RCFC 37 on October 24, 2005, requesting this Court order Defendant to produce unredacted documents and to compel witnesses Joseph Czech and Alan Zusman to appear at a second deposition to answer questions previously propounded at their depositions regarding work performed by Joseph Czech for Defendant. Plaintiffs' motion also seeks costs for the depositions of Joseph Czech and Alan Zusman. Defendant hereby opposes plaintiffs' motion to compel on procedural and substantive grounds. In addition, defendant moves for a protective order, pursuant to RCFC 26(c), to preclude production of the documents in question and barring any additional deposition of Mr. Czech or Mr. Zusman concerning privileged information. Futher support for defendant's motion is contained in the declaration of Ronald Borro, attached hereto. Although certain aspects of Mr. Zusman's testimony are clearly entitled to

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 6 of 17

protection by this Court, defendant has conducted a careful review of all matters relating to Mr. Zusman's work on behalf of the Navy, and has determined that certain limited information may be discoverable without revealing privileged information and without waiving any such privilege. This includes information pertaining to efforts in the year 2000 that were directed by the Commanding Officer, NAS Oceana, and not by counsel. Defendant will agree to limited further discovery on such matters at a time and manner mutually agreeable to the parties. Defendant, however, opposes the awarding of any fees or costs pertaining to this additional discovery, as the prior assertion of privilege over this information was entirely warranted, because it was not feasible to conduct this careful review while the deposition was occurring. In addition, defendant reserves the right to direct Mr. Zusman not to answer any further questions that relate to the efforts directed by the Commanding Officer, NAS Oceana, but that seek disclosure of privileged communication related to those efforts. As a preliminary matter, plaintiffs' motion fails on procedural grounds because it does not comply with the reasonable notice and confer requirements specified in RCFC 37. Defendant received a letter from plaintiffs' counsel on July 28, 2005 raising the issue with respect to the privileged documents at issue and Mr. Czech's deposition testimony. Pls.' Mot. to Compel (Exhibit 6 pp 4-6). It is this letter that plaintiffs evidently rely on to satisfy the requirement to in good faith seek the disclosure without court action. Plaintiffs' letter made no reference to an impending motion to compel. In fact, plaintiffs specifically stated that they would wait for defendant's response before considering "involving the Court in motion practice." Importantly, defendant did not reject plaintiffs' request for the information and

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 7 of 17

documents. To the contrary, defendant responded in an e-mail on August 2, 2005 that it was reviewing the documents identified in the letter. Id. at p 1. Plaintiffs' counsel made no further demand for the documents and information sought, nor did they indicate that the matter was time-sensitive or provide any notice that they intended to file a motion to compel. Thus, although defendant indicated that it was reviewing the matter, and in fact was doing so, plaintiffs proceeded with their motion to compel. Significantly, this is the only instance in this test case where a party has failed to notify opposing counsel that it intended to seek court intervention to resolve a discovery dispute. Exhibit A. Indeed, the parties have amicably worked together to resolve several discovery issues and other pretrial matters in this manner. Other than this isolated exception, both parties have communicated multiple times concerning discovery disputes, and have always given adequate notice prior to seeking court assistance if a dispute could not be resolved. As such, plaintiffs not only upset the previously existing good working relationship between the parties, but also failed to satisfy the notice and confer requirements mandated under RCFC 37 with respect to the privileged documents at issue or Mr. Czech's deposition testimony. Additionally, there has been no notice or meet and confer of any kind concerning the assertions of privilege at Mr. Zusman's deposition. Pls.' Mot. to Compel (Exhibit 6 pp 4-6). Plaintiffs cannot rely on the July 28, 2005 letter to fulfill the notice and confer requirements with respect to Mr. Zusman's deposition testimony, because he was not deposed until September 19, 2005. Turning to the substance of plaintiffs' motion, the documents plaintiffs are requesting involve privileged communications that occurred in October, November and

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 8 of 17

December 2001, after the original Testwuide case had been filed and during the F/A-18 E/F East Coast basing NEPA process. Some of this communication involved personnel from Wyle Laboratories, the Navy's contractor working on aircraft noise issues, specifically Dr. Micah Downing and Geral Long. The questions Joseph Czech and Alan Zusman were directed by counsel not to answer at their depositions concerned consulting work that occurred substantially earlier, in 19991 and which was performed at the direction of Navy counsel in anticipation of litigation and for the purpose of providing information to Navy and Department of Justice counsel that would assist them in providing advice regarding such potential litigation. This work is not related to the effort that is the subject of the October-December 2001 documents. Exhibit B. Wyle Laboratories has been under contract under contract to the Navy since the early 1990's as the Navy's primary contractor for analyses of aircraft noise. Exhibit B para. 5. Mr. Czech, who was a Wyle Laboratories engineer, conducted the consulting work at the immediate direction of Alan Zusman, the Navy's principal adviser on aircraft noise and land use planning, who in turn acted under the direction of Navy counsel.2 Exhibit B para. 5. In the July 28, 2005 letter referenced above, plaintiffs' counsel requested additional information beyond what was contained in a privilege log regarding certain documents that were redacted based on the attorney-client privilege and the attorney work-product privilege.3 Plaintiffs sought the same information concerning the questions
1

On information and belief, Mr. Czech's reference to this work having been done in 1998 was simply incorrect. 2 Defendant is forwarding a privilege log to plaintiffs regarding the consulting work Mr. Czech conducted that is responsive to plaintiffs' discovery requests. 3 Specifically, with regard to the assertion of attorney-client privilege, plaintiffs asked defendant to identify the attorney involved, the confidential nature of the communication, the position held by each recipient of a communication, the authority of each recipient within the Department of the Navy, and all persons to

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 9 of 17

Mr. Czech was directed not to answer at his deposition. Before plaintiffs filed their motion, defendant was in the process of reviewing the documents at issue again and planned to produce, and has since produced, some previously redacted material contained in these documents. Exhibit C. Additionally, defendant provided plaintiffs with a revised privilege log with additional information to address the issues raised in plaintiffs' letter. Exhibit D. The remaining redacted material and the information sought at the depositions of Joseph Czech and Alan Zusman are protected by both the attorney-client privilege and the attorney-work product doctrine. These protections have been asserted, a proper foundation for asserting them has been made in defendant's privilege log, as well as in the declaration of Ronald Borro, and these protections have not been waived. Accordingly, plaintiffs' motion to compel must be denied and defendant should be granted a protective order with regard to such privileged information. ARGUMENT The attorney-client privilege "is intended to encourage `full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). The party asserting the privilege bears the burden to establish the following: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made
whom the information had been communicated. Concerning the assertion of the attorney work-product privilege, plaintiff requested the identity of the attorney involved, the litigation that was anticipated at the time the document was prepared, the litigation issues to which the document is directed, and all persons to whom the document had been disclosed.

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 10 of 17

(a) (b)

is a member of the bar of a court, or his subordinate and in connection with the communication is acting as a lawyer;

(3) the communication relates to a fact of which the attorney was informed (a) (b) (c) by his client without the presence of strangers for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceedings, and not (d) for the purpose of committing a crime or tort; and

(4) the privilege has been (a) (b) claimed and not waived by the client.

See Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 484-85 (2000) (citations omitted). Moreover, the attorney-client privilege can encompass communications with independent consultants when they are meaningfully associated with an entity to such a degree that they should be treated as insiders for purposes of litigation or anticipated litigation. See In re Bieter Co., 16 F.3d 929, 934, 9367-40 (8th Cir. 1994); see also, McCaugherty v. Sifferman, 132 F.R.D. 234 (N.D. Cal. 1990)(attorney-client privilege can extend to consultants when they are the functional equivalents of employees). "[N]onemployees who possess a significant relationship to the client and the client's involvement in the transaction that is the subject of legal services" may have information that is necessary for counsel to properly advise a client with respect to potential litigation. Bieter,16 F.3d at 938 (quoting John E. Sexton, A Post-Upjohn Consideration of the Corporate Attorney-Client Privilege, 57 N.Y.U. L. Rev. 443, 487 (1982)).

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 11 of 17

The attorney work product doctrine is intended to preserve a zone of privacy in which attorneys and their representatives can prepare and develop mental impressions, conclusions, opinions, or legal theories "with an eye toward litigation" free from unnecessary intrusion by adversaries. See Hickman v. Taylor, 329 U.S. 495, 510-11 (1947); see also Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985) (attorney-work product privilege "protects the attorney's thought processes and legal recommendations, which may also bear directly on the suit in question."). The attorney-work product privilege provides immunity from discovery for documents and tangible things which were "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." Sparton Corp. v. United States, 44 Fed. Cl. 557, 564 (Fed. Cl. 1999). The privilege is qualified insofar as the party seeking discovery may obtain the protected document if it can show that it "has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." RCFC 26(b)(3); Sparton, 44 Fed. Cl. at 564. The privilege is absolute, however, with respect to work product that consists of the "mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." See Sparton, 44 Fed. Cl. at 564 (citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), and Upjohn Co. v. United States, 449 U.S. 383, 400-01 (1981)). I. THE REDACTED MATERIAL IN THE DOCUMENTS AT ISSUE IS PRIVILEGED AND IMMUNE FROM DISCOVERY The Navy has met the requirements necessary to assert attorney-client and attorney-work product privilege. As made clear by its privilege log and Mr. Borro's

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 12 of 17

declaration, the Navy has invoked the attorney-client and attorney-work product privilege and withheld only those documents, or portions of documents, that reflect communications between Navy personnel, its contractor, and Navy attorneys for the purpose of seeking, giving or receiving legal advice and also constitute attorney work product. As discussed infra, defendant's privilege log and Mr. Borro's declaration clearly satisfy the elements necessary to assert both the attorney-client privilege and the attorney-work product doctrine. The redacted communications plaintiffs seek were made between October and December 2001, after the original Testwuide case was filed and in the midst of the National Environmental Policy Act process for the East Coast basing of the F/A-18E/F (Super Hornet) on the east coast ("Super Hornet NEPA process"). Exhibit B para. 7. The redacted communications include, in part, requests for legal advice and/or opinions from Navy attorneys and responses thereto. Other redacted communications involve attorney communications directly to Wyle Laboratories employees, or in some cases through Mr. Zusman, the Navy's technical expert on aircraft noise and land use planning and the Navy's principal adviser on technical issues related to Wyle Laboratories' work for the Navy on the F/A-18 E/F East Coast basing NEPA process. Exhibit B paras. 4, 7. Wyle Laboratories performed studies for the Navy prepared in conjunction with thenpending litigation (specifically, Testwuide) and in anticipation of potential litigation arising from the F/A-18 E/F East Coast basing NEPA process. These communications were intended to be protected from disclosure and were treated as such by the parties. Exhibit B para. 7. This Court can determine from the descriptions provided in defendant's detailed

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 13 of 17

privilege log that the Navy's invocation of attorney-client and attorney-work product privileges is proper and necessary, including a detailed explanation in the "comments" block that explains why the redacted material is privileged. In each instance in which the attorney-client or attorney work product privilege is asserted, the log identifies, at a minimum, communications between attorneys representing the Navy and its clients who are employed by the Navy, or consultants who are acting at the direction of U.S. Navy counsel. The descriptions of Navy employees identify their official positions, except in certain instances where plaintiffs have deposed an individual and therefore know the person's official position. Moreover, the detailed descriptions in the privilege log note that the communication involving the attorney was conducted in "anticipation of potential litigation arising out of F/A-18 E/F East Coast basing NEPA process," or "legal advice" related to anticipated or current litigation. Exhibit D. Mr. Borro's declaration elaborates on the entries provided in defendant's privilege log. Exhibit B para. 7. Regarding the documents and communications at issue, Mr. Borro notes that the redacted communications and documents involved legal advice from Navy counsel pertaining to the current litigation or in anticipation of future litigation associated with the Super Hornet NEPA process. Exhibit B para. 7. Mr. Borro's declaration and defendant's privilege log clearly satisfy the elements necessary to assert the attorney-client and attorney-work product privileges.4 Plaintiffs further argue that at least 19 of the documents at issue in their motion to compel contain information that was waived "by dissemination" because the communications were received by Micah Downing and Geral Long, who are employed at

4

Should the Court deem it necessary, Defendant is prepared to make unredacted versions of the documents available for in camera review by the Court.

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 14 of 17

Wyle. Plts.' Mem. at 12. As noted above, it is appropriate to treat confidential communications with independent consultants as subject to the attorney-client privilege when the consultants are meaningfully associated with the client. Bieter, supra, 16 F.3d at 936-40. Since the early 1990's, Wyle Laboratories has been the Navy's primary contractor for analyses of aircraft noise, and has prepared a number of noise studies, including several studies at NAS Oceana. Exhibit B para. 5. For all intents and purposes, Wyle was and is an extension of the Navy for technical analysis concerning jet noise. As Mr. Borro noted, Wyle was "an integral part of the team preparing the NEPA analysis" underlying the F/A-18 E/F East Coast basing EIS, and the communications at issue were critical to analyzing the noise environment at NAS Oceana for the purpose of the EIS. Exhibit B para. 7. In addition to the EIS analysis, the noise environment at NAS Oceana was the clearly the subject of the Testwuide litigation. Exhibit B para. 7. To properly assess the litigation risks and advise its client, Navy counsel had to rely on open communication with Wyle employees, who possessed the technical knowledge of the NAS Oceana noise environment in light of their ongoing work. Exhibit B para. 7. Thus, Wyle was acting as the Navy's agent with regard to all matters that are the subject of plaintiffs' motion. Further, Wyle acted at the direction of Navy counsel as this work was prepared in conjunction with existing litigation and in anticipation of future litigation, and therefore, the communications do not lose their character as privileged simply because Wyle was an independent contractor. II. QUESTIONS AT THE CZECH AND ZUSMAN DEPOSITIONS SEEK PRIVILEGED INFORMATION Plaintiffs incorrectly contend that the information sought in the Czech and

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 15 of 17

Zusman depositions is not privileged because Mr. Czech was not working directly for a lawyer. Mr. Borro's Declaration clarifies that Wyle prepared technical analyses to assist Navy and Department of Justice counsel in evaluating potential litigation risks in order to properly advise senior management at Navy and Department of Justice. Exhibit B para 5-6. This effort was directed by Navy counsel and performed in anticipation of litigation beginning in February 1999. Exhibit B para 5. At that time the Navy was defending litigation challenging the Navy's decision under NEPA to realign F/A-18C/D aircraft (Hornets) from NAS Cecil Field, Florida to NAS Oceana, Virginia. During the course of this litigation it was clear from media reports and public web sites that lawsuits alleging overflight takings claims resulting from the realignment of the Hornets were imminent.5 Exhibit B para 4 (CCAJN Survey). In preparation for these lawsuits, the Navy began a litigation risk analysis, which involved data collection, studies, and reports. Exhibit B para 5. Wyle Laboratories assisted in the effort to evaluate the potential litigation risk. Exhibit B para 5. At the direction of counsel, Mr. Zusman acted as the bridge between Wyle and Navy counsel. Exhibit B para 5. Therefore, the Navy properly invoked these privileges at the depositions in question.

The fact that no lawsuits were filed until April 2001 is irrelevant to the Navy's judgment in 1999 that such lawsuits were imminent based on information in the public domain. Indeed, given the magnitude of the suits brought, it is not surprising that it took plaintiffs two years to file their complaints.

5

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 16 of 17

CONCLUSION For the foregoing reasons, the Navy has properly asserted privilege for the documents and information sought by plaintiffs. Accordingly, plaintiffs' motion to compel should be denied and defendant respectfully requests that this Court grant defendant's motion for a protective order. Dated this 10th day of November, 2005. Respectfully Submitted,

/s/ Steven D. Bryant STEVEN D. BRYANT KELLE S. ACOCK United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 Email: [email protected] Voice: (202) 305-0424 Fax: (202) 305-0267

Case 1:01-cv-00201-VJW

Document 136

Filed 11/10/2005

Page 17 of 17

CERTIFICATE OF SERVICE The undersigned certifies that on this 10th day of November, 2005, a true and correct copy of the foregoing DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND DEFENDANT'S MOTION FOR PROTECTIVE ORDER has been served electronically to the following counsel of record: Jack Ferrebee Hofheimer/Ferrebee, P.C. 1060 Laskin Road Sandpiper Key Suite 12-B Virginia Beach, VA 2345 (757) 425-5200 [email protected]

/s/ Steven D. Bryant_______ Steven D. Bryant

Case 1:01-cv-00201-VJW

Document 136-2
S.

Filed 11/10/2005

Page 1 of 2

Department of Justice

Environment and Natural Resources Division
SOB

90-1-23-10297
General Litigation Section
P. O. Box 663
Telephone (202) 305- 0424
Facsimile (202) 305- 0506

Washington, DC 20044-0663

October 28 ,

2005

Via E-mail
Jack E. Ferrebee , Esquire Hofheimer/Ferrebee , P. 1060 Laskin Road
Suite 12B Sandpiper Key

Virginia Beach , Virginia 23451
Re:

Testwuide, et. al. v. United States , No. 01- 201L Motion to Compel

Dear Jack:

As you know from our telephone conversation Wednesday morning, I was very surprised to receive the Motion to Compel Discovery you filed regarding the documents referenced in Mart W olrs July 28 , 2005 letter. In the past , both sides have worked amicably to resolve discovery issues regarding the test case before seeking court intervention. Despite the multitude of phone calls , e-mail exchanges and correspondence in recent weeks regarding discovery issues , you or your co-counsel did not indicate that you intended to fie a motion to compel. I was particularly taken aback since at the time you fied the motion you had not produced the revised pnvilege log you had previously agreed to provide to defendant by July 22 2005. As you know , we finally received that log yesterday, and are reviewing it.
In any event , we have now completed our review of the documents you cite in your motion. After that further review , we are releasing some documents in their entirety, and in other cases are releasing certain material previously redacted , while still withholding other material. I have also enclosed an updated privilege log. I trust that the revised privilege log address the concerns about material we continue to assert protection for in the documents cited in Mart' s July 28th letter. If you continue to have any concerns , I would ask that you let me know so that we can , if possible , attempt to address your concerns about this material without court intervention.

Please note that Mart identified two e-mails (Bates No. OCE213540 and OCE213635) in his letter that are not privileged and were produced on March 28 , 2005. To the extent that Marty was requesting the attachments rather than the e-mails , please be advised that the three attachments to OCE213635 (and OCE213632) are privileged and have been included on the revised privilege log. With regard to the two attachments to OCE213540 , those documents have been produced.
I trust that in the future the parties can continue to work together to resolve
discovery disputes without invoking the court' s assistance , unless necessary.

Case 1:01-cv-00201-VJW

Document 136-2

Filed 11/10/2005

Page 2 of 2

Sincerely,

sf/Steven D. Bryant

Steven D. Bryant

Enclosures

-2-

Case 1:01-cv-00201-VJW

Document 136-3

Filed 11/10/2005

Page 1 of 7

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CAROLE and ROBERT TESTWUIDE,
et. al.,

Plaintiffs,
No. 01-201

L

Judge Wolski

THE UNITED STATES,

Defendant.

DECLARA TION OF RONALD J. BORRO

1. I am Ronald J. Borro. I currently serve as Senior Counsel (Installations and
Environment) within the Offce of the Assistant General Counsel (Installations and Environment), Departent of the Navy. The Assistant General Counsel (Installations and Environment) provides legal advice to the Assistant Secretary of the Navy (Installations and Environment). The Assistant General Counsel (Installations and Environment) reports to the General Counsel of the Navy. The General Counsel of the Navy is the principal legal advisor to the Secretary of the Navy
2. The

Assistant Secretary of the Navy (Installations and Environment) ASN(I&E)") is responsible for formulating Navy-wide policies and procedures , providing advocacy and strategic planning for, and overseeing all Departent of the Navy functions and programs relating to installations , safety, environment and strategic sourcing. Navy instructions direct ASN(I&E) to establish and supervise execution of Departental principles , policies , and procedures to be followed in matters relating to inter alia: environmental protection; environmental planning; environmental compliance; natural and cultural resources conservation; and acquisition , use , and disposal of real property.

3. I have been

a member of the team providing legal advice to ASN(I&E) and his staff since October 1994. I have provided legal advice on a wide range of issues including the realignment ofF/A- 18 C/D aircraft from Naval Air Station ("NAS" Cecil Field , Florida , to NAS Oceana, Virginia. Specifically, I advised ASN(I&E) and his staff on environmental legal requirements associated with the realignment of the F/A- 18 C/D aircraft, litigation challenging the Navy s decision under the

Case 1:01-cv-00201-VJW

Document 136-3

Filed 11/10/2005

Page 2 of 7

National Environmental Policy Act (NP A) to realign the FI 18 C/D aircraft to NAS Oceana, environmental legal requirements associated with the East Coast home basing of the FIA- 18 ElF aircraft, litigation challenging the FIA- 18 ElF East Coast home basing decision , and the captioned lawsuit alleging inverse condemnation from operations of aircraft based at NAS Oceana.

4. In July 1998 Concerned Citizens Against Jet Noise (CCAJN) filed a lawsuit in the
United States District Court for the Eastern District of Virginia (Norfolk Division) challenging the Navy s decision to realign FIA- 18 C/D aircraft from NAS Cecil Field , Florida , to NAS Oceana, Virginia. In January 1999 the Court held a hearing on CCAJN' s request for a preliminary injunction and on cross-motions for summary judgment. At the end of that hearing the Court denied the plaintiffs request for a preliminary injunction. In May 1999 the Federal District Court granted the Navy s Motion for Summar Judgment and denied CCAJN' s request for a permanent injunction , ending the litigation but for an unsuccessful appeal by CCAJN to the U.S. Court of Appeals for the Fourth Circuit. During the course of the CCJAN lawsuit it became clear from statements that appeared in press reports and on public web sites that other lawsuits were imminent. As an ilustration , I have attached to my declaration an excerpt from the CCAJN website dated April , 1999. This excerpt sets forth what CCAJN characterized as "The PLAN" and states , in pertinent part CCAJN is . . . preparing to take additional steps that will hold the US Navy and our elected officials accountable for deliberately undermining our safety and quality of life, to provide compensation to those most severely impacted , and to support future noise mitigation efforts. " The first additional step " outlined by CCAJN is " File a class action ' inverse condemnation ' lawsuit against the US Navy. " The website then lays out what the theory of such a lawsuit would be , i. An inverse condemnation lawsuit would assert that the US Navy has violated this principle by ' taking ' property value from residents living within area most affected by jet-aircraft operations. . . " To prepare for these anticipated lawsuits , an analysis of litigative risk , which included technical analyses , was initiated under the direct supervision of Navy counsel.
5. As a

part of the overall evaluation oflitigative risk and to assist Navy and Departent of Justice counsel in providing advice to senior management regarding that risk , Wyle Laboratories , Inc. (" Wyle ), which has been under contract to the Navy since the early 1990' s as the Navy s primary contractor for analyses of aircraft noise , prepared technical analyses. Mr. Joseph Czech was the engineer who performed such analyses conducted by Wyle. Mr. Alan Zusman , an employee of the Navy who is the Navy s principal adviser on aircraft noise and land use planning and who was operating under the direction of Navy counsel served as the Navy s liaison with Wyle. These analyses were undertken as part of the Departent of the Navy s overalliitigative risk analysis , which took place between February 1999 and February 2000. I understand that in his deposition

Case 1:01-cv-00201-VJW

Document 136-3

Filed 11/10/2005

Page 3 of 7

Mr. Czech indicated that the efforts he was involved with which I describe here took place in 1998. On information and belief, Mr. Czech simply was mistaken about the period during which his analyses were conducted.
6. These analyses

necessarily involved several offices and commands within the

Deparent of the Navy. While the process was conducted under the supervision
of counsel , the results of these analyses were reviewed by the Assistant Secretary of the Navy (Installations and Environment) and his staff, the Chief of Naval Operations and his staff, the Commander, Fleet Forces Command and his staff Commander , Naval Air Forces Atlantic and his staff, Commander , Naval Facilities Engineering Command and his staff, and Commanding Officer , NAS Oceana and his staff. Each of these offices and commands was responsible to some degree for land use planning, aircraft operations , aircraft noise compatibility, and the environmental impact analysis underlying the decision to realign the FIA- 18C/D aircraft to NAS Oceana. Based on these responsibilities , it was critical that each of these offices and commands actively participate in the analyses used to evaluate the litigative risk and to inform the advice of Navy counsel and Departent of Justice counsel provided to senior Navy and Departent of Justice management associated with a potential taking claim based on aircraft operations. On information and belief, these analyses were not provided to anyone who did not have a legitimate need for the information.
7. I reviewed

the plaintiffs Motion to Compel Discovery, the updated privilege log provided to plaintiffs on October 28 , 2005 , and the underlying documents and the materials withheld under the attorney work product doctrine and attorney- client privilege as described in the updated privilege log. For the material in those documents (which were generated during the October- December 2001 time period) that was withheld, I confirm that counsel involved in preparation of those documents were representing the Deparent of the Navy, either within the Departent of the Navy or at the Deparent of Justice , in matters associated with the basing and operation of aircraft at NAS Oceana and that those documents represent exchanges between counsel , or between counsel and Departent of the Navy clients , that qualify as privileged attorney work product and attorney- client communications. These communications were intended to be kept confidential. These communications were, at the same time , critical in conjunction with the then-pending Testwide litigation and in anticipation of litigation arising from the
FIA- 18 ElF
East Coast basing process. The issue that is at the heart of the

communications , i. , efforts to obtain more accurate information about how the FIA- 18 C/D aircraft and F- 14 aircraft were being flown at NAS Oceana, was relevant both to establishing the baseline noise environment used in the FIA-

East Coast basing EIS and to understanding to what extent use of any inaccurate information had affected the projections of noise contained in the EIS for the realignment of the FIA- 18 C/D aircraft from NAS Cecil Field to NAS Oceana. This noise projection is a centerpiece of the plaintiffs ' complaint. Navy
ElF

Case 1:01-cv-00201-VJW

Document 136-3

Filed 11/10/2005

Page 4 of 7

attorneys and Departent of Justice attorneys were therefore necessarily involved in these communications for purposes of the ongoing NEP A analysis , including potential litigation arising from that process , and for the purposes of the pending Testwide litigation. To the extent that Wyle Laboratories employees were included in such communication , it was because as the Navy s long- time primary aircraft noise contractor they were an integral part of the team preparing the NEP A analysis where these issues were being addressed.
8. Pursuant

to 28 U.S. c. 1746 , I declare under penalty of perjury that the foregoing
and correct

information is tre

to the best of my knowledge.

Date /VJ1I1EIL

120U p 0RRO
RONALD J.

Case 1:01-cv-00201-VJW
. New Page 2

Document 136-3

Filed 11/10/2005

Page 5 of 7 Page 1 of3

r:::

:iM:

oot

o:::::m:

iw.

*-w'

f%*f,:

On this page:
CCAJN' WI if W;W

Survey

Are You Aware That:

CCAJN'

SURVEY &

PLAN

TO:

HOLD RESPONSIBLE OFFICIALS ACCOUNTABLE'
I support fiing an Inverse Condemnation lawsuit against the US Navy that seeks etary compensation for the depression in value of my property, for my cost
reduce intrusive noise in my home or business, and for the negative impact on Quality of Life as a consequence of increased aircraft operations associated with NAS
Oceana.

I a support a ballot initiative (referendum) that seeks annual rebates to individual taxpayers on ' paid' personal property taxes associated with residential and business real estate located within the high noise and crash zones.

I am wiling to volunteer some time and effort to help pursue these objectives.
NAME:

PHONE:

MAIL:

CCAJN SEEKS TO PRESER VE and ENHANCE COMMUNITY QUALITY OF LIFE BY WORKING CONSTRUCTIVELY TO REDUCE THE ADVERSE ENVIRONMENTAL, SAFETY, and ECONOMIC IMPACTS ASSOC/A TED WITH MIL/TAR Y AIRCRAFT OPERATIOZVS.
Name:

Address:
City:

CITIZENS CONCERNED ABOUT JET NOISE

http://host.sybercom. netljetnoisel

survey. htm

4/15/99

Case 1:01-cv-00201-VJW .New Page 2

Document 136-3

Filed 11/10/2005

Page 6 of 7

Page 20f3

2004 BRICKELL COURT
VIRGINIA BEACH, VA 23454

TTENTION IIOMEOWNE RS AND BUSINESSES! !!!
Are you aware that:
family are living in a high noise or crash zone ??? $' Jet noise wil increase up to fourfold in your subdivision by the end of 1999? $ Residents wil ultimately have to foot the more than $1.6 BILLION bil (US Navy estimate) to sound proof homes, businesses, schools, churches, and other public facilties?
0 You and your

*' The Navy has not revealed the safety implications of conducting increased aircraft operations including air show practices , over your neighborhoods and schools? $ Your property value wil be adversely affected? Homes will be harder to sell? (t. Children are attending schools, public and private, that do not meet interior noise level

standards even today? Hundreds of classes
Qi Your Quality of Life wil

are, in fact, held in noise-sensitive trailers?

o

diminish? Working and playing outside wil be unbearable? In addition to the 156 ALSO planning to replace FI 18' s arriving from Florida , the US Navy is 4 times louder? 147 existing F - 14 aircraft with aircraft that are 2-

You may eventually become a prisoner in your own home?

CITIZENS CONCERNED ABOUT JET NOISE (CCAJN)

The PLAN
elected offcials , has deliberately Act by concealing the full impact of relocating 156 F/ A- I8 aircraft to NAS Oceana. CCAJ is seeking, through the federal court , to require the US Navy to delay the movement of the aircraft until it has made a full , credible , and offcial public declaration of these impacts, A federal district court decision is expected shortly. CCAJN is also preparing to take additional steps that will hold the US Navy and our elected offcials accountable for deliberately undermining our safety and quality of life, to provide compensation to those most severely impacted
with the unquestioning cooperation of your
circumvented the National Environmental Policy

The US Navy,

and to support future noise mitigation efforts:

File a class action ' Inverse Condemnation ' lawsuit against the US Navy. Existing law and the US Constitution prohibits the US Governent from ' taking ' something of value from its citizenry without providing reasonable compensation. An inverse condemnation lawsuit would assert that
the US Navy has violated this principle by ' taking ' property value ITom residents living within areas most affected by jet-aircraft operations , and that these operations impose safety and health risks to which residents would not otherwise be exposed. The fact that the US Navy is on record as acknowledging a " significant impact " to areas of Virginia Beach and Chesapeake exposed
additional aircraft operations , and estimated substantial costs to mitigate these impacts provide a foundation for such a lawsuit Ample precedent exists. The courts , in a number of cases , have required the Department of Defense to pay substantial monetary awards to individual taxpayers because ofm..litary aircraft operations that constitute a ' taking . (NOTE: Legal expenses are

http://host. sybercom. net/jetnoise/survey.

htm

4/15/99

Case 1:01-cv-00201-VJW
. New Page 2

Document 136-3

Filed 11/10/2005

Page 7 of 7

Page 3 of3

typical1y a percentage of the judgment award and not' out of pocket',

.i Seek property-

m would seek an The percentage rebate would annual' rebate to individual taxpayers on 'paid' depend on the noi se zone in which a residence or business is located , or if the home or business is within an Accident Potential Zone.
property taxes.

tax relief through a ballot referendum. Such a referend

( !lQ J

Send mail to

J1!!a!U!!o. com with questions or comments about this web site. Last modified: April 13, 1999 This is a ' FrontPage98' design.

http://host.sybercom.net/jetnoisel survey. htm

4/15/99

Case 1:01-cv-00201-VJW
Smitb..

Document 136-4

Filed 11/10/2005

Page 1 of 26

bert OGC
Smith , Robert J Wednesday, October 31

From:

Sent:
To: Cc:

SubjeCt:

'Zusman , AI?,n F (NAVFACHQ)'; Ceini , J. Dan (EFOLANT); Smith , Hobert J Pierson , Fred E. (EFOLAT); 'logan COR phil (Fma ; Borro, Ronald; Jung, Chritopher Noel , John 0; ' f(ena , Jude RE: Work Priorityfot Wy1e

2001 10:07

D;

ATTORNY WORK PRODUCT

All,

briginal Message----From: Zusman, Alan F (NAVFACHQ) (mail to: Zusmanl?navfac. navy . mil) Sent: Tuesday, October 30, 2001 :34 To: Ceccluni, J. Dan (EFDLA) Smith Bob (E-mail) , Cc: Pierson, Fred E. (EFDLA) Logan CDR Phil (E- mail) . Subject: RE: Work Priority for Wyle

Dan,

Alan
Original Message--From: Cecchini; J. Dan (EFDLA) To: ZUsinan , Alan F (NAVFACHQ); Smith Bob (Email) Cc: Pie son, Fred E. (EFDLAT); Logan CDR Phil (E- mail) Sent: 10/30/01 6:31 PM

DC E

d. \3 (.

a '7

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 2 of 26

Imrtance: High
Alan/Bob,

cljei:b Work Priority for- Wyle

Jot an ail/call from Wyle today asking about priorities and funding. They indicated that they had been contacted by Bob tb conduct some work 1n sut5port of Oceaa litigation. They are asking abut . Also, they are asking for more ney because of recent noise revalidations that won

Questi

1s NaVy

h: How much work is Navy Lit/Do asking/going to ask Wyle to do? Lit/DO
paying the bill?

t end.
Nan

priorities.

with this).
Wyle juSt hat th

Unfortunately, Micah Downing is their . workhorse " but he is being asked to do a lot of things. Wyle must concentrate on producing noise contotis for us so that we can meet our EIS deadlines (CLF will concur

need some direction/guidance. We all can be telling priorities are - nee to be funeled through tone Navy rep.thei

Please aavise.
Dan

Tracking:

Recpient
'ZUSan.

Read
F (NAVFACHQ)'

Cecchini . J. Dan
Smit. Robrt J

(EFDL
Read:

101112001 10:09

Piersn , Fred E (EFDLAT)
logan CDR Phil (E-mail)

Borro , Ronald

Rea

101112001 13:19

Jung, ChrisopherD
NoetJohn D
Klena , Jude

: 10/31121 10:10 Rea: 101112110:19

QCE a \3 G,a8

Case SmitlkBpbert OGC1:01-cv-00201-VJW
From:

Document 136-4

Filed 11/10/2005

Page 3 of 26

Sent:
To:

Boro

Cc:

Subjec:
Works for me.

Kilebrew, Ruby l

Tuesday, November 20 200115:20 Reed; Kathy; Ronald E; ling, AliSon 0; 'Alan Zusman (E-mail)'; Smith

, Ronald
Ttc

, Robrt J

RE: ElF PIS to Mr. Holaday

Ron

Cc . Kibrew, Rub l

Set: Bo, Kay 2:55 PM , 2001 To: Tue,
--tfgina From: Ree
NOvebe 20
, Rona; TICle, Ronal E; li,
Alisn 0; Alan

Su6Jtt: FW: ElF PjB to Mr.
Wi/1545-1645 on th
2(th work

ZlI (E- mail); Smith, Robe J

for you? VIR Kathy

Sulitt: RE:
--oigina

To:

Se:Ree Tue, Ffo: . Ree
Tt)y,

Frot; Killeew, Ruby l

if Me--

Kay

Novembe 20, 2001 2:48 PM

If ybu want that day, probably 1545-1645 or any time

Kay
Ruby l
Tue,

, on 28th.

Subje RE: ElF
Ruby,

l"o:

Killbrew,

November 20, 2001 2:45 PM

When can he do it? VIR Kathy

To: R

--riina Mes from; Sent: JQ ubje:

Killerew, Ruby l

Novembe 20 2012:43 PM

RE: ElF

Kathy, This meeting will get bumped because Mr. H will be going on the

for a 1000.

HiU to meet with Mr. Underwoo at 0930

Se:Kill Kahy To: Bort .
From: Ree
--riinal
Cc: '
Ron

Mes,
RE: ElF

Tue, Novemr 20, 2001 7:50 AM

Subje

, Ron

, Ruby l

That sounds good to me... we want to keep the discussion manageable.

Ruby,

Please set us up on Mr. Holaday's schedule Tuesday, at say, 0930 for an hour.
Ron Tickl , Alison Ling, Bob Smith ,

and Aln Zusman.

Invitees are Ron Sarro

OtE

dl3

(;3 b

Case 1:01-cv-00201-VJW
VIR Kathy

Document 136-4

Filed 11/10/2005

Page 4 of 26

Fro: Sent To: Ree
riinal M

' Borr Ronald

MOn, Novem 19, 2001 5:55 PM

Subjec:
Kathy:

As discussed on Friday, can settings, noise contours , etc

Thougts?
Ron

oc.E a\3fo31

Smith.

"obert Case 1:01-cv-00201-VJW OGC

Document 136-4

Filed 11/10/2005
vfaG_ naVYmiq

Page 5 of 26

I=,.om:

Sent:

fo:
Cc:

Zusman , AlanF (NAVFACf-Q)(ZusmanAF Thtrsday, November 29
Mir; ' lognPE F18 ElF EIS NOtSE CONTOURS

Subjed:
Sensitivity:

2001 16:03 Cecini , J. Dan (EFOLNT; Piersn , Fred E (EFOLAT) Smith. R0b Hqj"avy.

cltnavy- mil' MOOWjng art. Wylabs- com

Private

Ul..

Iere
3Y D
include

- iI""well. as
. Wyle wil
C/Ds S- "

herewe stin with respect to sc edule:
iprovide all Oceana/Fentress E/F noise contours which

3y - De

7 , Wyle will provide Year 2000 Baseline

3y Det: 10,

Wylewill provide Beaufort

contours

3y Det: 14, Wyle will provide Cherry Point contours

=he limbition is 20 polnts per

leed . for his -analysls , That has to be run asa

14, Wyle will provide revis ed AR- 2 for Navy Litigation ll have t? check w Micah regarding the 100 , 000 poin s the

De

Office/DO . exp:t batch fl.le overnlght Sl.llCe

riil have all- data by COB Friday

this moment we have laY ofile data with the exception of the Flata. Act ually, we have the data some question as to what the )Ower setti,ngs represent and the F14 Wing is researching the 'aswer

thep

bQtthere is

- We

llai

acE QI304h

Case 1:01-cv-00201-VJW
Smitfj;;..J!pbert

Document 136-4

Filed 11/10/2005

Page 6 of 26

OGC
Klena , Jude lCDR (ClF N02lE3)(KlenaJ cltnavy. mil)
Tuesday, December 11

From:

Sent:
To:

20018:06 logan , Philip COR (ClF N468); "Smith , Robert J' '

(NA VFACWNY)

Downing, Micah' ' ; Zusman , Alan F

Cc:

Subject:
CDR Log-an,
h,_

long, Gerar' Jung, Christopher D Noel , John 0 ' Shuey, David' ' Evans , Julia Tim RE: F18 ElF EIS NOISE CONTOURS; LITIGATION SUPPORT

Braue

VR,

Jude
Original Message----From: Logan, Phillip CDR (CLF N4683) Sent: esda'y, - Decemer 11, 2001 7:05 AM To: Klena,.-Jude LCDR (CLF N02LE3); " Smith, Micah Zusman, Alan F (NAVFACWN)

Robert J' '

DOwning,

Cc: ., Lt5ng, Geral' '
David'

Jung, Christopher D

Evans, Julia Braue, - Tim Subject: RE: F18 E/F EIS NOISE CONTOURS; LITIGATION SUPPORT

Noel, John D '

Shuey,

--u.
Original Messag From: Klena, Jude LCDR (CLF N02LE3) To: ' smith, Robert J' ; Logan, Phillip CDR (CLF

Cc: ' Long, Geral' ; Klena, Jude LCDR (CLF JohnD; ' Shuey, David' Evans, Julia

Zusman,

an F (NAVFACW)

N4683); ' Downing, Micah'

Sent: 12/10/01 5:27 PM

N02LE3); Jung, Christopher D; Noel, raue, Tim

Subject: RE: F18 E/F EIS NOISE CONTOURS; LITIGATION SUPPORT

ATTORNY WORK PRODUCT/ATTORNY - CLIENT PRIVLEGED
. Bob,

VR,

Jude

To: Smith, Robert J; '
Cc: ' Lbng, Geral'
' Shuey; David'
Subject: RE: F18

From: smith, Robert J (mailto:Smith. Robert2gHQ. NAVY. MILJ Sent: Konday, Decemr 10, 2001 5:08 PM
Zusman , Alan F (NAVFACW)'
Logan, Phillip CDR - (CLF N4683) '
Downing, Micah'

-Original Message-

Klena, Jude ; Jung, Christopher D; Noel, John Evans, Julia Braue, Tim ElF EIS NOISE CONTOURS; LITIGATION SUPPORT
ATTORNEY -CLIEN PRIVILEGED

ATTORNEY WORK PRODUCT

Cc.E a \3 COSq

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 7 of 26

All,

Thans.
-----Original Message-----

- To: 'LUgan, Phillip CDR (CLFN4683)'

Downing, Micah' ; Zusman, Alan F (NAVFACi\/N) Cc: Stith, Robert Jj Long, Geral; ' Klena, Jude ; Jung, Christopher Noel, John D;- ' Shuey, David' Evans, Julia Braue, Tim

Sent: MI;mday, Decemr 10, 200). 12:39

From: $mth, Robert

Suject:

RE: F18 E!F EIS NOISE

CONTOUj

LITIGATION SUPORT

ATTORNY WORK PRODUCT/ATTORNEY -CLIEN PRIVILEGED MATERIAL

-All,

ThankS .
Original Message-From: Logan, PlUllip CDR (CLF N4683) (mailto:LoganPE0clf. navy. mil) Sent: Monday, December 10, 2001 11:20 AM To: ' Dci\'ming, Micah' Zusman, Al-an F (NAVFACW); Cecchini, J. Dan (EFDLAJ Logan, Phillip CDR (CLF N4683) . CC: Smith. Robert2&Hq. Navy. Mil; Long; Geral; Guerin, Jone
Subject: RE: F18 EIFEIS

NOISE CONTOUR; LITIGATION SUPPORT

Micah, dre we still on track to get the noise contours to E&E this

Friday?
Can you send me the contours at the same time? Phil

CDR Pbi 1 Logan
CLF , N4633

OCEd-\3GGo

Case 1:01-cv-00201-VJW
(757) 836- 3674, DSN 836

Document 136-4

Filed 11/10/2005

Page 8 of 26

From: Do1.iIig, Micah (mailto:mdowniilg!arLwylelabs. cri)
Sent: Monday,

original Message-

Clf navy . mil Cc: Smith. jkbert2!Hq. Navy . Mil; Long, Geral; Guin, Jone Suject
LoganPE
: FIB ElF

To: Zusma, Alan F (NAVFACHQ) ; CecchinL J. Dan
EIS NOISE

Decemr 10,

200110:55 AM
CONTUR

(EFDLA)

LITIGATION SUPPORT

Alan, -

directly compared.
send Cl ,, ersion
, Micah

.Just talked with LCDR Poll rd abut the changesiri the 14B profiles. Most ar small changes in airspeeds. However, he did , have a major power changei)n the-FCLp pattern. I' ll incorprate these changes 1n the input file and recalculate the noise contour. The overall be minial on the contour lines (less than 500' ) but may hange will if he visible

I will forwrd the final- final

F- 14B- profile descriptions soon will the final changes, and a clean version

. (I'

Original Message----From: Zusman, Alan F (NAVFACHQ) (mailto:ZusmanA!navfac. naVY. mil)
To: C

Sent: Suday, Decemr 09, 2001 7:5B PM
cbini, J. Dan
(EFDLA)

Cc: ' Sinith. Robert2!Hq. Navy. Mil'
Subjett:- FIB E/F EIS

' LoganPE!cl f . navy,. mil . ; Downing, Miccli Long, Geral NOISE CONTOURS; LITIGATION SOPI:ORT

Dan ahd Phil,

I want to -alert you to an issue w4ich has come up and the gecision I and Wyle hClve made in the interest of keepiJ;9 the EIS on track
We have completed the-moidelling of all

the

theOceana noise contours and
Late

Year 2000 baseline.

week, . LCDR Pollard from the F- 14 FITWING called to provide some last

last

The RevisedAR- 2

wiil be finished any day.

profil

minute'

changes which Wyle is in the process- of

incorprating.
were prparing

When we developed the profiles for the various aircraft communities , we collected F- 14B data from the FITWIN at Oceana. As we

package up the results and send the Year 2000 Baseline to

. experts

dawned 6n us that there may be F- 14A squadrons still operating at
Oceana --

point which Phil confirmed last week. There

(which was a 1999 the

FR has- as many as 15 " A"

the

, the DOJ

is 1 A squadron left and

aircraft.

Since we

re also revising AR-

projection), at least 3 A squadrons were flying at the time

C/D EIS was prepared. So, what do we do?
I asked Nyle to do an analysis comparing the " A" and ff B" models in all flight regimes to determne if the " B" is louder than the " A" model.
via mail that he has concluded the " B"

Micah

Downing from Wyle inform me

is
OCE

d.l3

Col

:i1ndeed louder.

accurate,

Case 1:01-cv-00201-VJW Document 136-4 Filed 11/10/2005 I t seen his analysis, but assuming it is I haven

Page 9 of 26

did.
the
. F14Bs

2000 Reviseq ARS- 2 contours if for no other reason we are convinc!' that based on the ne profiles, the F- 14 no longer impacts the contours as they once
If the " B" is indeed louder and we model all "

modeling all the F- 14s

or

as "

" will not have any

impct on the Year

Bs" , we can' t be accused

Sucking every dB out of the final contours and making them as small as
posr;ible. a:owever , as stated earlier , we believe the "8" is louder and

the

nb-

longer impact the size of the contours which are dominated by

- F- 18 C/D.

and

E&E' s earier emil, they re also looking for APZs and population counts

in
Soon

For Wyle, I recommnd

sending the Year 2 00 baseline to the DOJ

exprts

s possible or certainly after we incorporate the last minute minor 14 - pr6file changes LCDR Pollard called abut on Thursday- Continue feedng the contours to E&E so they c an work on the Draft EIS. As noted

:t leave it to you and Dan to determne how

to provide that information.

For Phil, I assume you will get the F-

E/F

14 Commodore endorsement and the

profil
. (:/D

endorsement from Leore.

Wyle will send you the final, final F-

incorpr-ating LCDR Pollard'

s last changes. I thnk we
Diego

already have the

and
have

-edorseient -

office

the

I will

be leaving for TDY to San

tomorrow morning but will be in
I think you all

Uitil 0930- 1000.

I will check my voice mail

my cell

phone nUmr 202- 746- 7207.'

Alan

ocE:al3 COGa

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 10 of 26

Smitlid
From: Sent:
To:

9bert

OGC
Zusman , AI"m F (NAVFACHQ) (ZusmanAF navfac. navy. mil) Thursday, Decembe 06 GLong art wyelabs. com MOowning arl. wyelabs. com SmithRobrt Hq. Navy. ElF EIS NOISE CONTOURS; DELIVERY TO DOJ EXPERTS

, 200115:31

Ce:

Subje

MW .

Geral,
Looking at the calendar it would appear that Wyle has completed all the Oceana noise contours including the Year 2000 baseline. That being the case, I need to see the results ASAP. Can you put the contours on a CDROM and FED X it to me next week? San Diego but can provide a good mailing address when I arrive.

I 'llbe in

We also need to provuide the Year 2000 Baseline to DOJs exprts--Harris/Wise and another gentlemen. Have you Peen told by them what format and scale to provide the Year 2000 Baseline? f not, lease advise ASAP via email AQd it might be usefult to follow- up with a cal to Bob Smith at 202- 685- 7023.

FInally, lease advise when the Revised AR- 2 is completed. I want to review the, results with you and then I' l also need it on a CDROM with a comparison to the original ARwill need to brief Mr. Holaday and others perhaps as early as the 14th.

2. I

Thanks

Micah; tall me before you leave ASA and head back to

Washington.

OCE

13

ftbLj

Smittt, B,obert OGC
t=rom:

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 11 of 26

Sent:

Subject:
Sensitivity:

To: Cc:

Zusman. Alan F (NA VFACHQ) (ZusmanAF navfac. naVY- mil) Friday, November 30, 2001 10:55 Muilenburg, Bret J; Boo , Ronald; Ling, Alison 0; Bowers . Terr L; Reed; Kathy Smith , Robert J; ' MOowning arl. wyelabs,com ; Cecini , J. Dan (EFOlAT) F18 ElF EIS; F- 14B AIRCRAFT PROFILES

Private

F14f-fght Prole-fnal -30..-

All,

We now have al to generate thenqise contours. Wyle will procee withthe profiles :hecesary the Year 2000 'Baselrne now, r we ll also have a revised AR- 2 for DO/N Litigation Office. I' m alSo providing the noise contour schedule again FYI, I _ wil be TD next week in Florida- You can reach me by emil
andd?Y 14 V'j

Here is the final piece of the puzzle.

or by cell phone at 202- 746-

Alan
F14B- Flight
By Dee 3

.7207.

Profiles- Final - 30Nov01,doc

includ

Wyle will provide all Oceana/Fentress E/F noise contours which
CIDs

as well.

By Dec I, Wyle will provide Year 2000 Baseline
By Dec 10, Wyle will provide Beaufort cont ours
By Dee 14, Wyle will provide Cherry Point contours
By Dec 4, le- will provide revised AR- 2 for Navy Litigation Office/DOJ ll have to check witb-Micah regarding the 100, 000 points the , DOJ expert needs - fbr : That has to be as a batch file overnight since the limtation is 20 points per run.

hisanalysis

ru

OCE

\3

COCoS

Smith , Robert OGC
From: Sent:
To: Cc:

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 12 of 26

Zusman , Alan F (NAVFACHQ) IZusmanAF navfac. navy. miIJ Friday, November 30 , 2001 9:19
Muilenburg, Bret J; Borro , Ronald; Ung, Alison 0; Bowers , Terr L; Reed , Kathy Smith , Robert J 18 E/FEIS; FLIGHT POFtLES

Subject:
Sensitivity:

Private

Fl8CO Flight Profiles-RnaI-29...

ill

F18CDBeufort

Profi-finaI2...

All,

book I provided you-- except you Bob! We
profiles later today or Monday at the

Attached are the Final F- 18 C/D Aircraft Profiles for NAS Fentress and MCA Beaufort. The Oceana/Fenttress profilesOceana/NAF were slightly modified by the Commdore, Strike Fighter wing Atlantic, and are shown in blue in the profile Qescriptions Please add these profiles to the profile

latest.

exect to see the final F-

Alan
Profiles- fina12 9NovOl.

Fl8CD Flight Profiles-Final- 29NovOl. doc??

doc??

F18CD-Beaufort

LE '213"13

mltn. :tl9bert

QGC ' Case 1:01-cv-00201-VJW

Document 136-4
20011:10

Filed 11/10/2005
navac. navy. miij

Page 13 of 26

From:

Sent
To:
Cc: Subject: .

Zusman, Alan F (NAVFACHQ) (ZusmanAF
Wednesday, December 12 ,

Ceccini

Downing, Micah' ; Zusman , Alan F (NAVFACHQ); Bob Smith; Pierson

Long, Gerat
RE: F- 14

, J. Dan (EFOLANT)
A VS. B

, Fred E (EFOLANT);

Micah,
I think you answered your pwn question when you say the impact of th s minimal~-- but not nothing. Since we are, revising the AR- 2contours, 14A which are the SourCe of e litigation, we need to be as accurate as
recommend

possibh within reason. Since we have A and B noise . using the technque we discussed this mornin d,ata, T would

. Alan,
Frpm; Db ing, Micah (mailto:mdowning Sent: MOhday, Decemr 10, 2001 4:32 arl. wylelabs. com)
Zusman; Bob Smithi

Original Message-----

To:- Alan

Cc : Lorig , -Gral

Fred E. Piersoni Dan Cecchini

Subject: F- 14 A vs. B

Alan ,
Attachec is my updated analysis for looking at F
14 B vs -Of noise. rhis file has one change from my earlier file F- 14 Aon based in discuSsions with - LCDR Pollard. He stated that the restrict on

term
I

afterburner takeoffs only applies to the B model and not the A revised the A takeoff departure Thus, opposed to a mil power takeoff. - to lnclude an afterbUrer takeoff The environment is overa l its contribution to the 'noise A is louder only on takeoff, but

miniml.

Thus, I think it is appropriate to model all F14 14B noise and flight profile data.
Let me khow how you want

operations using

e to proceed.

Micah

oc E 'a

\ 3

'71

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 14 of 26

Smit E.obertOGC
From:

Sent:
To: Cc: SubjeCt:

Zusman , Alan F (NAVFACHQ) rZusmanA navfac. navy_ miij Wednesday, December 12, 2001 1:20
Smith , Robert J'
RE: F18 ElF

Lon, Gerar; ' K/ena , Jude ; Jung, Christopher D; ' Shuey, David'; ' Evans , Julia
EIS NOISE CONTOURS; LITIGATION SUPPORT

logn , Phillp COR (ClF N4683)'; ' Downing, Mich'

All,

Alan
-----Original Message----From: Smith , Robert J (mailto:Smith. Robert2gHQ. NAVY. MIL) Sent: Monday, Decemr 10, 2001 5:08 PM To: Smith, RobertJi ' Logan, Phillip CDR (CLF N46B3) Downing, Micah'

Zusman , Alan F (NAVFACW)' Cc: ' Long, Geral' Klena, Jude

Shuey, David'

Subject: RE: FIB

; Jung, Christopher D; Noel, John D; Evans, Julia Braue, Tim' ElF EIS NOISE CONTOURS; LITIGATION SUPPORT
ATTORNEY - CLIEN PRIVILEGED

ATTORNEY WORK PRODUCT

All

Thanks.
From: Smuth, Robert J
Original Message-----

To: .

Sent: Monday, Decemr 10,
gan ,
(NA VFAC"i1'NY)

2001 12:39 PM Phillip CDR (CLF N4683) ' . Downing,

Micah' ; Zusman, Alan F

Cc: Sad th, Robert J; Long, Geral;

. Klena, Jude

; Jung, Chris topher D;

atE

13'//1

. Subject: RE: F-18

Noel, John

Di

Case 1:01-cv-00201-VJW Document 136-4 Filed 11/10/2005 Shuey, David' Evas, Julia , Braue, Tim'
E/F ins NOISE CONTURS; LITIGATION SUPPORT
MATERIAL

Page 15 of 26

ATTORN WORK PRODUCT/ATTORNEY- CLIEN PRIVILEGED

All,

Tlianks.
Original Message----From: LOgan, Phillip CDR (CLF N46B3)

To: 'Dc1. 71ing, Micah' i
(EFDLA)

Sent: MOnday,

Decemr - 10, 2001 11:

Cc:
Suject:

Logan, PhillipCDR (CLF N4683)Smith. Robert2 Hq. NaVY. Mil;, Long, Gerali Guerin,
RE: F1B E/F EIS NOISE CONTURi

Zusman, Alan F (NAVFACW); CecchinL J. Dan
Jone LITIGATION SUPPORT

20 AM
PhiP.

(mailto:LoganPE&clf. navy. miIJ

cah, are we still on track to get the noise contours to E&E this Friday? Can you send me the contours at the same time?
CDR Phil Logan CLF, N46-33 (757) 836- 3674 , DSN 836
Original Message-----

LoganPE8cl f . navy. mil Cc: sm th. obert2 Hq. Navy, Mili Long, Gerali Guerin, Jone Subject: RE: F18 ElF EIS NOISE- CONTUR; LITIGATION SUPPORT,
- Alan-

2001 10:55 AM To: Zusma, Alan F (NAVFACHQ)-i Cecchini, J. Dan

Sent: - Monday, Decemr 10,

From: DO\ 'Iing, Micah (mail

to: mdowning

ar L wy lelabs. comJ

(EFDLA);

Most are small

Just talked with LCDR Pollard about the changes in the F14B profiles. changes in airspeeds. . However, he did have a major power change on the FCLP pattern. I' ll incorporate these changes in the input file and - recalculate the noise contour. The overall change will be minfmal on the contour lines (less than 500' ) but may be visible if directly compared.
I will forward the final- final F- 14B profile descriptions soon. (I' send a version will the final changes, and a clean version.

Micah

aCE

13fJ

Case 1:01-cv-00201-VJW

Document 136-4

Filed 11/10/2005

Page 16 of 26

OriginalMeSsage--

Sent: Sunday, Decemr 09, 2001 7:58 PM To: Cecchini, J . Dan (EFDLA); , LOanPE&d f. navy . Cc: 's1ith. bert2 Hq. NaVY. Mil' ; Downing, Mica; Long,
Subject: FiB

rom: Zusinan , Alan

F' (NAVFACHQ) (mailto:Zusma!navfac. naVY mil)
Geral SUPPORT

. E/F EIS NOISE CONTUR; LITIGATION

Dan and Phil,

, I want
We hav

to alert yout;o an issue which has cOffeup the decision I and Wylehcive made in the interest of keeping the EIS on track.

an

minute

week

1ast

Yeilr 2000 bas line. The

the

completed the moidelling of all the Oceana noise contours and
Revised

AR- will be finished any day. Late

LCDR Pollard from the F- 14 FITWJ;NG called to provide some last
changes which Wyle _is in the proc ss of incorprating-

profil

When we tlevelopedthe profile s for the . various aircraft communities, we collect a F-14B data from the Oceana. As we were prpearing

packag

dawned on us that there may be -

. (which

point which Phil confirmed last week. There is 1 A squadron left and the FRS has asm y as 15 " A" -aircraft. Since we re also revising ARSthe

bceanac-

to exerts it .
FITW at
determne if the " B"

up the results and send the Year 2000 Baseline to the DOJ
14A squadrons still operating at

was a 1999 projection), at least 3 A squadrons were flying at the time

C/D EIS 1;,as prepared. So, what do we do?
I asked Wyle to do

is louder than the " A" modeL Micah Downing from Wyle inform me via email that he has concluded the " B" is indeed louder. I haven'

flight regimes to

analysis comparing the " A" and "
t seen his analysis, but

models in all

accurate,

assumg it

modeling all the F- 14s

as " Bs" will not have any impct on

the Year 2000

Possible. However,
the
18 C/D.

of the

2 contours based on

Revise

if for no other reason we are convinced that

the ne did. . profiles, the F- 14 no longer impacts the contours as they once If the "

B" is indeed iouder and we model all "

, we can' t be accused

Sucking every dB out of the final contours and making them as small as as stated earlier, we believe the " E" is louder and

F14Bs no longer impact the size of the contours which are dominated by

For Wyle, I recommend sending the Year 2000 baseline to the DOJ experts

Soon as possible or certainly after we incorporate the last minute minor 14 prbfile changes LCDR Pollard called about on Thursday. Continue feeding the contours to E&E so they can work on the Draft

EIS. As noted

and

E&E' s - earier email, they '

re

also looking for APZs and population counts

I leav it to you and Dan to

determne how to provide that

information-

OCE

'1tq

Case 1:01-cv-00201-VJW

Document 136-4

'E/F

-for Phil, I assume you will get the F- 14 Commodore

endorsemnt ard the

Filed 11/10/2005

Page 17 of 26

profil
C,/D

endorsert from Lemore.

Wyle will send you

he final, final Fwe already

incoqJbrating r.DR Pollard' s last changes. I think

1:ave the

endorsemnt.
- the

I will be leaving for TDY to San Diego tomorrow morning but will be in

have

office until 0930- l000.

my cell phone

and

I will check my voice mail

I thin

you all

numr 202- 746- 7207.

Alan

acE

131(AO

Case 1:0