Aaron Avila

Aaron Avila, a Department of Justice attorney arguing for the Navy, started, defending the Navy´s environmental and site studies leading to selection of a 33,000-acre tract of farmland on the border of Washington and Beaufort counties.

Avila challenged a lower court ruling issued by Eastern District Judge Terrence Boyle, a ruling that found the Navy´s studies flawed and inadequate.
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"The district court erred," said Avila, adding Boyle had "fly-specked" apparent weaknesses in the body of evidence instead of weighing the record as a whole.
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"The court compounded the error by entering an overly broad injunction," Avila added, saying the lower court had discounted what he called the Navy´s presentation of indisputable facts, "(in)controvertible testimony of naval commanders."

Short of a reversal of the lower court ruling, the Navy is seeking a narrowing of the permanent injunction that would allow continued land purchases, planning and other site work pending a final determination on the acceptability of the Washington-Beaufort county site, or Site C.

Avila tackled what has become a sore point with the Navy, Boyle´s admission of evidence the Navy considers outside the formal record, including testimony from bird-aircraft strike-hazard experts.
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Avila indicated the proposed airstrip is not all that close, telling the panel the actual runway is five miles away from the refuge. The Washington County site, he added, would suffer the least environmental damage of all the five sites the Navy had considered.

The Navy told the panel what it has made clear to others: the service is chafing at having to conduct a court-ordered supplemental environmental impact statement. Avila explained that pursuing a court remedy at the same time it gathers data for an SEIS is part of a twin strategy to move along progress on the OLF. SEIS work, says the Navy, will be abandoned if the appeals court overturns the lower court ruling.

"Doing an SEIS does detract from other tasks," said Avila.
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Avila argued the Navy has "a finite number of resources" and conducting an "SEIS takes away from those resources."
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"Not at this point," replied Avila, conceding the selection did reflect a decision to split-site 10 Super Hornet squadrons at both Oceana and Marine Corps Air Station Cherry Point, with an OLF located between.

Switching gears, Avila pitched the Washington County site as being free of wetlands and endangered species, a contention countered by OLF team attorney Derb Carter, who cited a Navy acknowledgment to the lower court that wetlands permits would be needed to begin work at Site C.
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Avila conceded the Navy would be required to obtain wetlands permits but argued those permits would cover dredge-and-fill operations that would result in disturbance of "waters of the U.S.," one of two definitions of wetlands contained in the federal Clean Water Act.
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Avila repeated Navy contentions the site is too close to a nearby bombing range to support safe flights at an OLF.

However, Wilkinson indicated hazards at Site C could likely surpass hazards near a bombing range. He said it was a "matter of common sense" that the number and size of birds known to fly in and out of the refuge could endanger aircraft and pilots.

"A layman looking at this might say there is a danger of bird-aircraft collision," Wilkinson noted.

Avila repeated Navy contentions that their experts say the risk is manageable.

"Why wouldn´t there be a danger? continued Wilkinson.

"You can´t get rid of all danger, your honor," replied Avila, adding the Navy will develop a plan.
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Avila replied such evidence was presented outside the formal record.

"So you ignore that? asked Williams.

Avila repeated the risks are manageable.

Turning to the paper trail exposed during district court hearings, Wilkinson asked Avila about allegations of tailoring studies to justify selecting Site C, suggesting Navy results were arrived at to "justify a decision that had effectively already been made. If that´s true, doesn´t that turn (the National Environmental Policy Act) on its head?"

"There was absolutely no reverse-engineering of anything in this case," replied Avila.
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"We wouldn´t build something we thought was not safe," said Avila.
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"It was taken seriously," argued Avila.

"The birds were in the Arctic during the time of your (survey)," said Wilkinson.

However, a Navy spokeswoman on hand during a February 2003 media tour of the radar facility told the Daily News the survey was set up to satisfy requests from local residents and officials.

Avila defended the Navy´s site visits, arguing they allowed staff to talk to wildlife experts: "You don´t necessarily have to have the birds there."
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"I´m not too sure ... what part of the study they were referring to," responded Avila.
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The judges challenged Mehta as vigorously as they had Avila, suggesting an OLF has to go somewhere and will likely encounter opposition regardless of circumstances.

The three judges also grilled Corps attorney Aaron Avila about which documents were available to the public before the development was approved.Avila said the Fish and Wildlife opinion was available, but wasn't sure about the environmental assessment of the project.

In a packed courtroom, Justice Department attorney Aaron Avila urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to reverse a lower court ruling that blocked construction of the outlying landing field, or OLF, in Washington and Beaufort counties.

"The Navy took a hard look at the potential environmental impacts," Avila told the court, adding that the 30,000-acre tract five miles from the Pocosin Lakes National Wildlife Refuge was the only site considered that had no wetlands that would be affected.

He said the vast majority of Navy activity would be within 1.5 miles of either side of the airstrip.Planting crops such as cotton would make those areas less hospitable for the birds, Avila said.

The airfield's impact on the thousands of large birds that make the refuge their winter home would be minimal, Avila said, and the Navy's own expert deemed bird-aircraft collisions to be "a manageable risk."
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Judge J. Harvie Wilkinson III prodded Avila for a response to that allegation.
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"There was absolutely no reverse engineering of anything in this case," Avila said.
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Avila told the appeals court that BRAC's recommendation, which is not final, should have no bearing on the case.

In a packed courtroom, Justice Department attorney Aaron Avila urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to reverse a lower court ruling that blocked construction of the outlying landing field, or OLF, in Washington and Beaufort counties.

"The Navy took a hard look at the potential environmental impacts," Avila told the court, adding that the 30,000-acre tract five miles from the Pocosin Lakes National Wildlife Refuge was the only site considered that had no wetlands that would be affected.

He said the vast majority of Navy activity would be within 1.5 miles of either side of the airstrip.Planting crops such as cotton would make those areas less hospitable for the birds, Avila said.

The airfield's impact on the thousands of large birds that make the refuge their winter home would be minimal, Avila said, and the Navy's own expert deemed bird-aircraft collisions to be "a manageable risk."
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Judge J. Harvie Wilkinson III prodded Avila for a response to that allegation.
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"There was absolutely no reverse engineering of anything in this case," Avila said.
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Avila told the appeals court that BRAC's recommendation, which is not final, should have no bearing on the case.

Arguing for the Navy was Aaron Avila, a Department of Justice appeals attorney making his first appearance in the case.
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Avila conceded the facility would "destroy cropland" to manage bird populations at the adjacent Pocosin Lakes National Wildlife Refuge.
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Avila responded with traditional Navy arguments that jets and birds can be kept apart.

Avila: "Eighty-six percent of the flight patterns occur within 1.5 miles of the landing field."

Regarding the larger holding pattern that would see overflights of the Pocosin Lakes refuge, Avila told the panel, "Only 25 percent of arrivals go into that (larger) holding pattern."

Interchanges regarding the relocation of the holding pattern became confused, requiring Avila to consult with Navy officials and backtrack on a decision to move the holding pattern farther from the refuge to minimize bird impacts.

"Actually a decision has been made to move that," Avila told the court.
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Avila: "This is doing specific analysis of the risk."
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Avila didn't respond.