Magistrate recommends against COER injunction

A federal magistrate judge recommended a U.S. District Court judge deny a request by an advocacy group to force the Navy to halt the increased EA-18G Growler operations at the Outlying Field Coupeville. The announcement came on July 22.

In February, Citizens of Ebey’s Reserve, or COER, filed the motion for an injunction as part of the ongoing lawsuit against the Navy over the noise impacts of a 400 percent increase of Growler aircraft landing practice at the small, rural airfield.

The state Attorney General and COER challenged the adequacy and accuracy of the Navy’s Environmental Impact Statement.

The magistrate found that COER’s motion didn’t meet the elements necessary for the injunction.

The judge isn’t required to follow the magistrate’s recommendation. COER had 14 days to reply to the magistrate’s report.

On Aug. 6, COER announced it had filed a response to the magistrate’s recommendation. COER President Robert Wilbur said, “Preliminary injunctions against the military are very hard to achieve, but as citizens, we have few peaceful options open to us and it’s our responsibility to push the courts for equity, balance and justice. The U.S. Supreme Court has severely limited courts’ abilities to enjoin the military.

“COER pursued a preliminary injunction because our communities are suffering from expanded Growler training and jet noise over our homes, businesses, schools and the hospital. This has been especially difficult for families and business[es] during the pandemic because everyone is sheltering at home to be safe. Increased noise has added more stress to the lives of over 337,000 people in five counties of Northwest Washington.

“COER remains committed to taking any and all actions possible to bring relief to our communities suffering from jet noise from an out-of-balance expanded Navy mission. We thank the thousands of people throughout the region who have supported COER and our preliminary injunction action. We remain optimistic that the people will ultimately prevail on the merits in this case.”

The magistrate called the injunction “an extreme remedy” that would entangle the court in the Navy’s day-to-day operations.

As COER pointed out, a decision on the injunction doesn’t impact the larger claims regarding compliance with the National Environmental Policy Act and the Historic Preservation Act.

“We always knew that the likelihood of obtaining a preliminary injunction was an extremely high mountain to climb,” Wilbur said in a press release.

“The U.S. Supreme Court has severely limited courts’ abilities to enjoin the military,” he continued.

“We pursued a preliminary injunction, knowing we were unlikely to prevail, because our communities are suffering from expanded Growler training over our homes, businesses, schools and the hospital,” Wilbur said in the press release.

Yet J. Richard Creatura, the magistrate judge, did comment on the merits of arguments made by COER and the attorney general in the underlying court case, writing that “they fall within an area where the Court must be highly deferential to the Navy’s choices.”

Creatura explained that the U.S. Supreme Court ruled that the Department of Defense should be given deference in matters of military operations because of the public interest in national security.

In reference to the preliminary injunction, Creatura wrote that COER hasn’t shown in the early stages of the lawsuit that it is likely to prevail.

“In fact, plaintiffs have not discussed any case, and the Court has not found any,” Creatura wrote, “where a court has granted a preliminary injunction countermanding a Department of Defense decision concerning military operations affecting the national security under similar circumstances and where that court’s ruling was not overturned.”

Creatura noted that he had reviewed classified material and that the inclusion of such evidence gives COER “a distinct disadvantage by not being about to review” the secret files.

The magistrate also found that COER’s evidence about the impacts of Growler noise falls short of establishing the kind of imminent harm that cannot be remedied through an award of damages.

Weekly Editor Mandi Johnson contributed to this article.