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

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

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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

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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

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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.

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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

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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

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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

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