2:19-cv-01059-RAJ 2019-10-15 USN Response To WA ATG Opmplaint

Case 2:19-cv-01059-RAJ Document 17 Filed 10/15/19 Page 1 of 20
1 District Judge Richard A. Jones
7 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9
STATE OF WASHINGTON, No. 2:19-cv-01059-RAJ
10
Plaintiffs,
ANSWER OF FEDERAL DEFENDANTS TO
11 v. STATE OF WASHINGTON’S COMPLAINT
12 The UNITED STATES DEPARTMENT OF

THE NAVY, an agency within the United
13 States Department of Defense; MARK T.
ESPER, in his official capacity as Acting
United States Secretary of Defense;
14 RICHARD V. SPENCER, in his official
capacity as Secretary of the Navy; TODD C.
15 MELLON, in his official capacity as Acting
Assistant Secretary of the Navy, Energy,
16 Installations & Environment; and CAPTAIN
MATTHEW L. ARNY, in his official
capacity as Commanding Officer of Naval
17 Air Station Whidbey Island,
18 Defendants,
19 Defendants United States Department of the Navy and Mark T. Esper, in his official
20 capacity, Richard V. Spencer, in his official capacity, Todd C. Mellon, in his official capacity,
21 and Matthew L. Arny, in his official capacity (collectively, the “Federal Defendants”), by their
22 attorney, Brigman L. Harman, Trial Attorney for the United States’ Department of Justice,
23 answer the complaint filed herein by plaintiff State of Washington, as follows:
24
ANSWER OF FEDERAL DEFENDANTS TO STATE -1- U.S. Department of Justice
25 OF WASHINGTON’S COMPLAINT 150 M. Street, NE
No. 2:19-cv-01059 Washington, DC 20002
1 1. The allegations set forth in Paragraph 1 constitute Plaintiff’s characterization of
2 its case to which no response is required. To the extent a response is required, Federal
3 Defendants refer to the cited Record of Decision, signed on March 12, 2019 (the “ROD”), and
4 Final Environmental Impact Statement issued on September 28, 2018 (the “EIS”) for their full
5 and complete contents and otherwise deny the allegations contained in Paragraph 1.
6 2. Federal Defendants refer to the ROD and EIS for their full and complete contents
7 and Federal Defendants deny any allegation that is inconsistent with those documents. Federal
8 Defendants deny any remaining allegations contained in Paragraph 2.
11 Defendants deny the allegations contained in the Paragraph 3.
12 4. Federal Defendants deny the allegations contained in Paragraph 4.
16 6. The allegations in Paragraph 6 are conclusions of law to which no response is
17 required. To the extent the allegations in Paragraph 6 purport to characterize or set forth the
18 contents of cited laws, regulations, or judicial decisions, the referenced legal authorities are the
19 best evidence of their contents and Federal Defendants deny any allegation that is inconsistent
20 with those legal authorities. To the extent a response is required, Federal Defendants deny the
21 allegations contained in the Paragraph 6.
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18 required. To the extent a response is required, Federal Defendants deny the allegations in
19 Paragraph 10.
22 Paragraph 11.
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7 13. Federal Defendants lack knowledge or information sufficient to form a belief as to
8 the truth of the allegations in Paragraph 13 and on that basis deny those allegations. To the
9 extent that the allegations in Paragraph 13 are conclusions of law, no response is required. To the
10 extent a response is required, Federal Defendants deny the allegations in Paragraph 13.
14 best evidence of their contents and Federal Defendants deny any allegation inconsistent with
15 those legal authorities. To the extent a response is required, Federal Defendants deny the
21 its case to which no response is required. To the extent that the allegations in Paragraph 16 are
22 conclusions of law, no response is required and Federal Defendants deny any allegation that is
23 inconsistent with the actual contents of cited laws, regulations, or judicial decisions. To the
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1 extent a response is required, Federal Defendants deny the allegations contained in the Paragraph
2 16.
4 its case to which no response is required. To the extent that the allegations in Paragraph 17 are
5 conclusions of law, no response is required and Federal Defendants deny any allegation that is
6 inconsistent with the actual contents of cited laws, regulations, or judicial decisions. To the
7 extent a response is required, Federal Defendants deny the allegations contained in the Paragraph
8 17.
9 18. Federal Defendants admit that the Navy is an agency within the United States
10 Department of Defense, deny the remaining allegations contained in paragraph 18, and aver that,
11 as of the date of this Answer, Dr. Mark Esper was appointed Secretary of Defense.
12 19. Federal Defendants deny the allegations contained in Paragraph 19, and aver that
13 Dr. Esper is now the Secretary of Defense.
14 20. Federal Defendants admit the allegations contained in Paragraph 20.
15 21. Federal Defendants deny the allegations contained in Paragraph 21, and aver that
16 as of the date of this Answer, Lucian Niemeyer is currently the Acting Assistant Secretary of the
17 Navy, Energy, Installations and Environment.
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1 with those authorities. To the extent a response is required, Federal Defendants deny the
7 with those authorities. Federal Defendants To the extent a response is required, Federal
13 with those authorities. Federal Defendants. To the extent a response is required, Federal
17 contents of cited laws, regulations, or judicial decisions, legal authorities are the best evidence of
18 their contents and Federal Defendants deny any allegation that is inconsistent with those
19 authorities. To the extent a response is required, Federal Defendants deny the allegations
20 contained in the Paragraph 26.
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12 contents of cited laws, regulations, or judicial decisions, the legal authorities are the best
13 evidence of their contents and Federal Defendants deny any allegation that is inconsistent with
14 those authorities. To the extent a response is required, Federal Defendants deny the allegations
15 contained in the Paragraph 29.
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18 35. The United States admits that Whidbey Island is located in the northern Puget
19 Sound. The remaining allegations in Paragraph 35 are vague or contain undefined terms so that
20 Federal Defendants lack knowledge or information sufficient to form a belief as to the truth of
21 those allegations and on that basis Federal Defendants deny them.
23
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1 37. The allegations set forth in the first sentence of Paragraph 37 constitute Plaintiff’s
2 characterization of its case to which no response is required. Federal Defendants admit that both
3 Ault Field and OLF Coupeville began operating during World War II. The allegations set forth
4 in the third sentence of Paragraph 37 contain vague or undefined terms concerning the location
5 of Ault Field and OLF Coupeville and on that basis Federal Defendants deny them. The
6 allegations in the fourth sentence of Paragraph 37 contain vague or undefined terms concerning
7 operations at Ault Field and OLF Coupeville and on that basis Federal Defendants deny them.
8 38. Federal Defendants admit the allegations contained in the first two sentences of
9 Paragraph 38. The remaining allegations constitute Plaintiff’s characterization of its case to
10 which no response is required. To the extent a response is required, Federal Defendants deny the
11 remaining allegations contained in the Paragraph 38.
12 39. Federal Defendants admit that the Department of the Navy conducted an
13 Environmental Assessment in 2005 (the “EA”) and later issued the EIS and the ROD. To the
14 extent the allegations in Paragraph 39 purport to characterize or set forth the contents of those
15 documents, the referenced documents are the best evidence of their contents and Federal
16 Defendants deny any allegation that is inconsistent with those documents. Federal Defendants
17 deny any remaining allegations contained in Paragraph 39.
18 40. Federal Defendants admit the Department of the Navy issued the EIS and the
19 ROD. To the extent the allegations in Paragraph 40 purport to characterize or set forth the
20 contents of those documents, the referenced documents are the best evidence of their contents
21 and Federal Defendants deny any allegation that is inconsistent with those documents. Federal
22 Defendants deny any remaining allegations contained in Paragraph 40.
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1 41. Federal Defendants admit that the Department of the Navy published a draft
2 Environmental Impact Statement (the “Draft EIS”), a Notice of Availability, and the EIS.
3 Federal Defendants further admit that the Navy received more than 4,000 comments in response
4 to the Draft EIS. To the extent the allegations in Paragraph 41 purport to characterize or set forth
5 the contents of those documents or comments, the referenced documents or comments are the
7 with those documents or comments. Federal Defendants deny any remaining allegations
8 contained in Paragraph 41.
13 44. Federal Defendants admit that the Washington State Department of Health
14 submitted comments to the Department of the Navy regarding the Draft EIS. To the extent the
15 allegations in Paragraph 44 purport to characterize or set forth the contents of those comments,
16 the referenced comments are the best evidence of their contents and Federal Defendants deny
17 any allegation that is inconsistent with those comments. Federal Defendants deny any remaining
18 allegations contained in Paragraph 44.
21 Defendants deny the allegations contained in the Paragraph 45. Additionally, the EIS and the
22 ROD are the best evidence of their contents and Federal Defendants deny any allegation that is
23 inconsistent with those documents.
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ANSWER OF FEDERAL DEFENDANTS TO STATE - 10 - U.S. Department of Justice
4 Defendants deny the allegations contained in the Paragraph 47. Additionally, the EIS, the
5 Navy’s response to Washington State’s comments on the draft EIS, and the ROD are the best
7 those documents.
13 Paragraph 51.
14 52. In responding to this allegation, Federal Defendants refer to the EIS and deny any
15 of the allegations contained within Paragraph 52 to the extent they are inconsistent with that
16 document. To the extent a further response is required, Federal Defendants deny the allegations
20 document. To the extent a further response is required, Federal Defendants aver that the
21 allegations in Paragraph 53 contain vague or undefined terms, contain conclusions of law, and
22 constitute Plaintiff’s characterization of its case, and on these bases Federal Defendants deny
23 them.
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3 document. To the extent a further response is required, Federal Defendants aver that the
4 allegations in Paragraph 54 contain vague or undefined terms, contain conclusions of law, and
5 constitute Plaintiff’s characterization of its case, and on these bases Federal Defendants deny
6 them.
7 55. The allegations in Paragraph 55 are vague, and Federal Defendants are without
8 sufficient information to admit or deny them. On that basis Federal Defendants deny the
9 allegations in Paragraph 55.
12 58. To the extent the allegations in Paragraph 58 purport to characterize or set forth
13 the contents of Federal Defendants’ written statements, the referenced statements are the best
15 those statements. Federal Defendants deny any remaining allegations contained in Paragraph 58.
17 60. Federal Defendants deny the allegations contained in Paragraph 60 and all of its
18 subparts.
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5 with those documents. To the extent a response is required, Federal Defendants deny the
7 66. Federal Defendants admit that the Department of the Navy initiated Section 106
8 review in autumn 2014 and released its Determination of Adverse Effect in June 2018. To the
9 extent the allegations in Paragraph 66 purport to characterize or set forth the contents of the
10 Determination of Adverse Effects, that document is the best evidence of its contents and Federal
11 Defendants deny any allegation that is inconsistent with that document. Federal Defendants
12 deny any remaining allegations contained in Paragraph 66.
13 67. In responding to this allegation, Federal Defendants refer to the text or texts of
14 those Congressional acts or laws establishing Ebey’s Landing National Historic Reserve and
15 deny any of the allegations contained within Paragraph 67 that are inconsistent with those
16 documents. To the extent a further response is required, Federal Defendants deny the allegations
18 68. In responding to this allegation, Federal Defendants refer to the Department of the
19 Navy’s Determination of Adverse Effect and deny any of the allegations contained within
20 Paragraph 68 that are inconsistent with those documents. To the extent a further response is
21 required, Federal Defendants deny the allegations contained in Paragraph 68.
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5 70. Federal Defendants admit that the SHPO concurred in the Department of the
6 Navy’s Determination of Adverse Effect. The remaining allegations set forth in Paragraph 70
7 constitute Plaintiff’s characterization of its case to which no response is required. To the extent a
8 response is required, Federal Defendants deny the allegations contained in Paragraph 70.
9 71. In responding to this allegation, Federal Defendants refer to the text of the
10 Department of the Navy’s Letter of Termination and related correspondence and deny any of the
11 allegations contained within Paragraph 71 that are inconsistent with those documents. To the
12 extent a further response is required, Federal Defendants deny the allegations contained in
13 Paragraph 71.
14 72. In responding to this allegation, Federal Defendants refer to the text of the federal
15 Advisory Council on Historic Preservation’s February 19, 2019, comments and deny any of the
16 allegations contained within Paragraph 72 that are inconsistent with those comments. To the
17 extent a further response is required, Federal Defendants deny the allegations contained in
18 Paragraph 72.
20 Department of the Navy’s Section 106 decision and deny any of the allegations contained within
21 Paragraph 73 that are inconsistent with that decision. To the extent a further response is
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2 Department of the Navy’s Section 106 decision and deny any of the allegations contained within
3 Paragraph 74 that are inconsistent with that decisions. To the extent a further response is
8 76. Federal defendants incorporate by reference each of their responses to the
9 allegations contained in paragraphs 1 through 75 of the complaint.
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7 82. Federal defendants incorporate by reference each of their responses to the
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1 87. Federal Defendants incorporate by reference each of their responses to the
10 90. Federal Defendants incorporate by reference each of their responses to the
20 The remainder of the complaint is a prayer for relief to which no response is required. To
21 the extent the allegations are deemed to be factual, they are denied. Federal Defendants deny
22 that Plaintiff is entitled to the requested relief or any relief whatsoever.
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1 GENERAL DENIAL
2 All of the allegations in Plaintiff’s complaint which have not been specifically admitted,
3 denied, or otherwise answered are hereby denied.
4 FEDERAL DEFENDANTS’ AFFIRMATIVE DEFENSES
5 First Affirmative Defense
6 Plaintiff has failed to state a claim for which relief may be granted.
7 Second Affirmative Defense
8 Plaintiff has failed to exhaust its administrative remedies for some or all of its claims.
9 Third Affirmative Defense
10 Plaintiff has waived some or all of its claims.
11 PRAYER
12 WHEREFORE, Federal Defendants deny that Plaintiff is entitled to the relief requested,
13 or any relief whatsoever, and requests that this action be dismissed with prejudice, that judgment
14 be entered for Federal Defendants, and that Federal Defendants be granted such other relief as
15 the Court will allow.
16 Respectfully submitted this 15th day of October, 2019.
17
JEAN E. WILLIAMS
18 Deputy Assistant Attorney General
19 By: /s/ Brigman L. Harman

Brigman L. Harman
20 United States Department of Justice
Environment & Natural Resources Division
21 Natural Resources Section
150 M Street, NE
22 Washington, D.C. 20002
Tel: (202) 616-4119
23 Fax: (202) 305-0506
Email: Brigman.Harman@usdoj.gov
24
1
Joshua Wilson
150 M Street, NE
Tel: (202) 305-0482
5 Fax: (202) 305-0506
Email: Joshua.Wilson@usdoj.gov
6
Counsel of Record for Federal Defendants
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1 CERTIFICATE OF SERVICE
2 I hereby certify that on October 15, 2019, I served a copy of the foregoing on counsel of
record electronically through the court’s CM/ECF system.
3
4 By: /s/ Brigman L. Harman

Brigman L. Harman
150 M Street, NE
Tel: (202) 616-4119
8 Fax: (202) 305-0506
Email: Brigman.Harman@usdoj.gov
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2:19-cv-01059-RAJ 2019-10-15 USN Response To WA ATG Opmplaint

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2:19-cv-01059-RAJ 2019-10-15 USN Response To WA ATG Opmplaint

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Case 2:19-cv-01059-RAJ Document 17 Filed 10/15/19 Page 1 of 20

1 District Judge Richard A. Jones

7 IN THE UNITED STATES DISTRICT COURT

12 The UNITED STATES DEPARTMENT OF

1 1. The allegations set forth in Paragraph 1 constitute Plaintiff’s characterization of

8 Defendants deny any remaining allegations contained in Paragraph 2.

9 3. The allegations set forth in Paragraph 3 constitute Plaintiff’s characterization of

11 Defendants deny the allegations contained in the Paragraph 3.

12 4. Federal Defendants deny the allegations contained in Paragraph 4.

13 5. The allegations set forth in Paragraph 5 constitute Plaintiff’s characterization of

15 Defendants deny the allegations contained in the Paragraph 5.

16 6. The allegations in Paragraph 6 are conclusions of law to which no response is

21 allegations contained in the Paragraph 6.

22 7. The allegations in Paragraph 7 are conclusions of law to which no response is

4 allegations contained in the Paragraph 7.

5 8. The allegations in Paragraph 8 are conclusions of law to which no response is

10 allegations contained in the Paragraph 8.

11 9. The allegations in Paragraph 9 are conclusions of law to which no response is

16 allegations contained in the Paragraph 9.

17 10. The allegations in Paragraph 10 are conclusions of law to which no response is

20 11. The allegations in Paragraph 11 are conclusions of law to which no response is

1 12. The allegations in Paragraph 12 are conclusions of law to which no response is

6 allegations contained in the Paragraph 12.

7 13. Federal Defendants lack knowledge or information sufficient to form a belief as to

11 14. The allegations in Paragraph 14 are conclusions of law to which no response is

16 allegations contained in the Paragraph 14.

17 15. The allegations set forth in Paragraph 15 constitute Plaintiff’s characterization of

19 Defendants deny the allegations contained in the Paragraph 15.

20 16. The allegations set forth in Paragraph 16 constitute Plaintiff’s characterization of

3 17. The allegations set forth in Paragraph 17 constitute Plaintiff’s characterization of

13 Dr. Esper is now the Secretary of Defense.

14 20. Federal Defendants admit the allegations contained in Paragraph 20.

17 Navy, Energy, Installations and Environment.

18 22. Federal Defendants admit the allegations contained in Paragraph 22.

19 23. The allegations in Paragraph 23 are conclusions of law to which no response is

2 allegations contained in the Paragraph 23.

3 24. The allegations in Paragraph 24 are conclusions of law to which no response is

8 Defendants deny the allegations contained in the Paragraph 24.

9 25. The allegations in Paragraph 25 are conclusions of law to which no response is

14 Defendants deny the allegations contained in the Paragraph 25.

15 26. The allegations in Paragraph 26 are conclusions of law to which no response is

20 contained in the Paragraph 26.

21 27. The allegations in Paragraph 27 are conclusions of law to which no response is

3 allegations contained in the Paragraph 27.

4 28. The allegations in Paragraph 28 are conclusions of law to which no response is

9 allegations contained in the Paragraph 28.

10 29. The allegations in Paragraph 29 are conclusions of law to which no response is

15 contained in the Paragraph 29.

16 30. The allegations in Paragraph 30 are conclusions of law to which no response is

21 allegations contained in the Paragraph 30.

22 31. The allegations in Paragraph 31 are conclusions of law to which no response is

4 allegations contained in the Paragraph 31.

5 32. The allegations in Paragraph 32 are conclusions of law to which no response is

10 allegations contained in the Paragraph 32.

11 33. The allegations in Paragraph 33 are conclusions of law to which no response is

16 allegations contained in the Paragraph 33.

17 34. Federal Defendants admit the allegations contained in Paragraph 34.

21 those allegations and on that basis Federal Defendants deny them.

22 36. Federal Defendants deny the allegations contained in Paragraph 36.

11 remaining allegations contained in the Paragraph 38.

17 deny any remaining allegations contained in Paragraph 39.

22 Defendants deny any remaining allegations contained in Paragraph 40.

8 contained in Paragraph 41.