Growler lawsuits in two federal courts entangled

Four lawsuits in two different federal courts over Navy jet noise on Whidbey Island have recently become intertwined.

The U.S. Department of Justice wants two lawsuits seeking damages against the Navy to be stayed in one federal court until after lawsuits are resolved in a different federal court.

Last July, state Attorney General Bob Ferguson and the anti-noise group Citizens of Ebey’s Reserve, or COER, filed lawsuits against the Navy in U.S. District Court in Seattle. The claims allege the Navy violated the National Environmental Policy Act and the Administrative Procedure Act by not properly analyzing the impact a planned increase in EA-18 Growlers will have on human health, the environment and historic resources.

Under the Record of Decision, the Navy plans to increase aircraft landing training flights at the Outlying Field Coupeville in Central Whidbey by 400 percent.

Then in September, attorneys representing the owners of more than 30 properties in Central Whidbey filed a lawsuit in U.S. Court of Federal Claims seeking class-action status. The lawsuit claims that the increase in Growler noise represents a “physical taking without compensation” because of the decreased value of the residents’ homes.

The residents are represented by two national law firms, Susman Godfrey and Marcella Law.

In December, Ken Pickard — a former Central Whidbey resident and leader of COER — filed his own lawsuit against the Navy in the Court of Federal Claims. He is represented by three national litigation firms.

Pickard’s lawsuit alleges inverse condemnation under the Fifth Amendment and asks for damages and injunctive relief. Four generations of his family have lived on Whidbey Island since 1918, and he lived on Ebey’s Prairie for 68 years; the noise of jets caused him to have a life-threatening medical emergency and significantly lowered the value of his property, the lawsuit states.

“Plaintiff could not be outside his home, or carry on a conversation, watch television or play music inside his home when the planes were flying,” the lawsuit states. “The fly overs and noise affected every aspect of his life on the Fort Casey property, including even his ability to fly a kite outside due to the low height of the aircraft.”

The noise drove Pickard to sell his home in 2016 at a substantial loss, the lawsuit states.

In a rebuttal, attorneys for the Department of Justice argued that Pickard failed to state a claim; he lacks standing because he did not own a property on the day of the alleged taking; his claim is barred by the statute of limitation; his property interests had been previously adjudicated; and the court lacks jurisdiction because Pickard is a member of COER, which has a lawsuit in another court.

The rebuttal asks the judge to deny Pickard any relief and dismiss his claim with prejudice.

Last week, the Department of Justice made a motion to stay the class action and Pickard cases in the Court of Federal Claims. In a joint status report, the attorneys agreed that the two cases should be coordinated because of their similarities but not fully consolidated at this time.

The motion for a stay points out that the cases in U.S. District Court could result in different operations levels for Growler training. Such a change would directly impact the Fifth Amendment takings argument.

“It would be a colossal waste of resources for the parties to pursue discovery based on a permanent taking theory only to discover, once the APA Action is resolved, the alleged taking is only temporary in nature (or vice-versa),” the motion states.

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