dedicated to the sustainability of the florida keys

Fraudulent Obstruction of Information Act - FOIA

Mon, 1 Sep 2014 06:35:25 -0400

In June 2014, former County Commissioner Kim Wigington (Monroe County, Florida) appealed the Navy’s rejection of a Freedom of Information Act (FOIA) request she submitted in 2011. Below is the latest chapter in the seven-year history of fraud, abuse and obstruction.

Background

In 2007, as the number of F/A-18E/F Super Hornet flights and the associated noise increased around Naval Air Station Key West, citizens raised concerns. The Navy responded (see Answer #4) that they had analyzed the impacts of the aircraft in a 2003 “Environmental Assessment” (EA). While the EA was well known to Keys residents because the subject was proposed dredging of Key West Harbor, this is the first time (four years later) the Navy claimed that this document also pertained to and exonerated the Super Hornet. More surprising, only three pages of the 232-page EA mention the aircraft. The remaining 229 pages address the environmental impacts of dredging.

Even more compelling, the preceding document—Draft EA (also known as the Pre-Release Draft EA)—that was distributed to at least eleven public agencies for comments, does not mention the aircraft, nor do any of the comments received back from those agencies.

Not once.

In fact, no preceding document mentions the airplane, back to the original 2002 notification of a “planned action” to dredge Key West Harbor by NAS Key West Captain L.S. Cotton.

It is the Draft EA that has been sought through the Freedom of Information Act (FOIA). In response to this columnist’s FOIA inquiry and appeal, the Navy said that despite a “diligent search” they were unable to locate the document. Their response to Ms. Wigington’s ongoing request for the document was that the document was exempt from release to the public.

In one case, they said they couldn’t find it, in another they said it is exempt.

Subsequent to the U.S. Navy’s inability to locate the document, this writer located the document and photocopied incriminating pages. Section 4.10 of the Draft EA would discuss the environmental impacts of noise related to the Super Hornet, if it were the subject of the Environmental Assessment. There is no mention of the aircraft.

The Draft EA is a smoking gun that proves the Navy lied.

It’s very simple - the Navy claims that it properly evaluated the environmental impacts of the Super Hornet and yet this key document—the one distributed to the public and numerous public agencies informing them of the intended action and asking for their comments—does not mention the aircraft.

Thus, neither the public nor any of the reporting agencies were aware of and there is no document before the Draft EA that even hints to the Navy’s 2007 revelation that the 2003 Environmental Assessment applied to the Super Hornet.

Neither the U.S. Attorney, nor the FBI have acted on this writer’s fully documented formal complaint, centering on this citation of our criminal code:
18 U.S. Code § 1001: “Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years…”
Navy officials have made materially false statements, knowingly and willfully.

They have lied and stonewalled for seven years.

Auspiciously, the “last overt act”—that restarts the five-year Statute of Limitation—was October 31, 2013. The Record of Decision (ROD) for the NAS Key West Final Environmental Impact Statement (FEIS), signed on that date by Roger M. Natsuhara, Principal Deputy Assistant Secretary of the Navy (Energy, Installations & Environment), includes the same false statement that the 2003 Environmental Assessment satisfied the Navy’s legal obligation to evaluate the impacts of introducing the Super Hornet to Naval Air Station Key West.

For the most comprehensive history of the lies, please consult this link. For the fruitless complaint to the FBI and the U.S. Attorney’s office, consult this link.

Update

When Monroe County (Florida) Commissioner Kim Wigington submitted an official FOIA request for the same document in June 2011, the Navy refused to release the document, claiming that the Draft EA was “exempt from disclosure” by virtue of “Exemption 5” of the Freedom of Information Act, “…which exempts internal government communications that are a part of the deliberative process,” as detailed in the Judge Advocate General’s rejection letter of May 2014.

Ms. Wigington’s June 2014 appeal describes the issues:
[The Navy] denied a copy of the “Pre-Release Draft Environmental Assessment for Maintenance Dredging of Key West Channel and Truman Annex Harbor” (PRDEA) dated February 11, 2003 with the rationale that release of that document is protected by 5 U.S.C. §552(b)(5). The letter stated that to do so would “…cause foreseeable harm to the deliberative process privilege…” Exemption 5 applies to documents “…which would not be available by law to a party other than an agency in litigation with the agency.”

The Department of Justice Guide to the Freedom of Information Act (2009 Edition), page 357, states courts have construed Exemption 5 to “…exempt those documents, and only those documents that are normally privileged in the civil discovery context.”

The PRDEA is therefore not exempt, because it is a public document, one already freely disclosed to other persons outside of the scope of the claimed privilege. Distribution of the document in question was an integral part of the National Environmental Policy Act (NEPA) process, in which the public and reporting agencies are provided the draft document in order to submit comments for inclusion in the final document.

The document was sent by the Navy to at least eleven public agencies for their comments, including…

• U.S. Department of Interior, Fish and Wildlife Service,
• Florida Fish and Wildlife Conservation Commission,
• Florida Department of Transportation,
• South Florida Water Management District,
• Florida Department of Environmental Protection,
• Florida Keys National Marine Sanctuary,
• United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries

After receiving copies of the PRDEA, those agencies reviewed the document and submitted comments. The document is specifically referred to in several of the letters in Appendix E “Letters Received from Agencies” of the 2003 Environmental Assessment, demonstrating its public distribution and proving that this document does not qualify for the claimed privilege.
Navy officials who made false statements and concealed the facts have committed felonies.
JH

U.S. Attorney responds, sorta

Mon, 17 Mar 2014 14:32:25 -0400

A very clear description of a felony and the evidence was sent to the FBI. Having received no response, it was sent to the U.S. Attorney, who responded, “…I am forwarding your correspondence to the FBI…”

Is “runaround” one word or two?

Below, read the criminal complaint and the response.

&&&&
February 24 , 2014
Mr. Wilfredo A. Ferrer, U.S. Attorney
Southern District of Florida
99 N.E. 4th Street
Miami, FL 33132
via Certified Mail

Dear Mr. Ferrer,

In violation of 18 U.S. Code § 1001 and other laws, officials of the U.S. Navy knowingly and willfully made a materially false statement in their October 31, 2013 Record of Decision (ROD) for the Naval Air Station (NAS) Key West Final Environmental Impact Statement (FEIS). The fraud invalidates key findings of the FEIS. Please consider this a formal complaint.

The false statement is “The 2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West analyzed potential impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A-18E/F operations. As a result of that analysis, the DoN reached a Finding of No Significant Impact on April 14, 2003, which completed and satisfied the NEPA [National Environmental Policy Act] requirements associated with the introduction of the F/A-18E/F Super Hornet at NAS Key West.”

In fact, the EA evaluates the potential impacts of dredging, and modernizing ship- and aircraft-support facilities, not the “…impacts to the human environment…from all transient aircraft operations, including the F/A-18E/F operations …” as claimed.
 The evidence:

1. The complete document history for this 2003 Environmental Assessment consists of more than 500 pages, beginning with the October 2, 2002 “brief letter,” required of Navy Commanding Officers anticipating the need for an Environmental Assessment, through the final document—the Finding of No Significant Impact (FONSI)—signed April 14, 2003. The Super Hornet was only mentioned on three pages (less than 1% of the documentation); those three pages did not analyze “…potential impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A18E/F operations…”; and therefore the Navy did not satisfy the NEPA requirements.

2. Officials of the Navy fabricated a connection between the Super Hornet and the EA well after the EA was published, perhaps as long as four years afterward, in 2007. There is no prior public record of any connection between the Super Hornet and the EA. Despite a specific inquiry, the Navy has refused to correct this assertion.

3. NEPA Environmental Assessment documentation requires identification of a Proposed Action and a listing of Alternatives. There is no mention of the Super Hornet in either the Proposed Action or the Alternatives and therefore the EA did not complete and satisfy the NEPA requirements as claimed. 
4. The FONSI does not mention the Super Hornet. Their claim that the FONSI “…completed and satisfied the NEPA requirements…” for analysis of “…all transient aircraft operations, including the F/A-18E/F operations…” at NAS Key West cannot be true, since it does not mention the aircraft.

5. Among ten pages of references dealing with potential impacts of dredging—more than 160 entries—one lone reference in the EA pertains to airplanes: the “Wyle Laboratories Draft Noise Study for Forecast CY07 Conditions at NAS Key West.” In response to a FOIA request, the Navy sent me a CD with a PDF of the Wyle study, in which the cover page—that presumably would have a publication date—was missing. However, the Adobe Reader “document properties” revealed that the “creation date” of the study was “Apr 24, 2003,” ten days AFTER the signing of the final NEPA document. The Navy has refused to explain the anachronism. Unsubstantiated reports are that an original EA—that did not include the reference—was replaced with one that included this single reference line.

6. Despite a rejected FOIA request and an appeal, five different offices of the Navy, including the Department of the Navy Office of General Counsel, failed to find a copy of the Draft Environmental Assessment, which was distributed to the public and at least eleven state and federal reporting agencies for comments before publication of the EA itself. Subsequent to the Navy’s failure—acting alone—I located a copy, which revealed a stunning fact—neither the Draft EA, nor any other preceding document contains any mention of the Super Hornet. Thus, there is no evidence whatsoever that the Environmental Assessment process that began on October 2, 2002 was ever intended to evaluate the impacts of the Super Hornet, despite the Navy’s false assertions—years after the fact.

7. While reluctant to use the charged word, a conspiracy seems likely. Versions of the same false statement, made by different Navy officials, have appeared in at least three places, most notably in a 2007 response from B.J. Penn, Assistant Secretary of the Navy (Installations and Environment) responding to Richard Grosso, Esq., General Counsel of The Everglades Law Center, Inc., in which Secretary Penn states, “…the Navy complied with NEPA for transient aircraft operations at NAS Key West by completing an Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements. That EA, and its incorporated references, analyzed impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A-18E/F. As a result of that analysis, the Navy reached a Finding of No Significant Impact…”. Over a seven-year period, the Navy has made false statements and concealed important documents in an attempt to keep their fraud from being revealed.

8. Some have suggested that the statute of limitations applies, because the evidential EA was published ten years ago. The fact is, however, that the alleged crime occurred in 2013 and the date of the evidence is irrelevant. Furthermore, if my read of the law is correct, and if there is a conspiracy, it is that last overt act (October 2013) that starts the limitation clock.

References:
All corroborating documentation can be downloaded from this link.

A complete investigation of this matter would include DODIG Cases #105900 and #113851; and GAO Control #51428, which are likely to reveal important details to law-enforcement investigators that are not visible in the heavily redacted public reports.

Sincerely,

John G. Hammerstrom
Commander, USN (Ret)

Federal Bureau of Investigation

Wed, 22 Jan 2014 15:35:19 -0500

January 21, 2014  Michael B. Steinbach, Special Agent in Charge
Federal Bureau of Investigation,
16320 NW 2nd Avenue  North Miami Beach, FL 33169

Dear Agent Steinbach,

I request a meeting with you, or one of your staff to detail the following:

In violation of 18 U.S. Code § 1001 and other laws, officials of the U.S. Navy knowingly and willfully made a materially false statement in their October 31, 2013 Record of Decision (ROD) for the Naval Air Station (NAS) Key West Final Environmental Impact Statement (FEIS). The fraud invalidates key findings of the parent document - the FEIS itself.

The false statement is “The 2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West analyzed potential impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A18E/F operations. As a result of that analysis, the DoN reached a Finding of No Significant Impact on April 14, 2003, which completed and satisfied the NEPA [National Environmental Policy Act] requirements associated with the introduction of the F/A-18E/F Super Hornet at NAS Key West.”

In fact, the 2003 EA pertains to modernizing “…ship and aircraft support functions and facilities at the Naval Air Station (NAS) Key West including Boca Chica and Truman Harbor.” The 2003 EA does not evaluate the potential “…impacts to the human environment…from all transient aircraft operations, including the F/A-18E/F operations …” as claimed.

The evidence:

1. The complete document history for this 2003 Environmental Assessment consists of more than 500 pages, beginning with the October 2, 2002 “brief letter,” required of Navy Commanding Officers anticipating the need for an Environmental Assessment, through the final document—the Finding of No Significant Impact (FONSI)—signed April 14, 2003. Within the family of documents, the Super Hornet was only mentioned on three pages (less than 1% of the documentation); those three pages did not analyze “…potential impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A18E/F operations…”; and therefore the Navy did not satisfy the NEPA requirements.

2. There is no record in the Federal Register or elsewhere, until after the signing date of the 2003 FONSI, of any connection between an evaluation of the introduction of the Super Hornet to NAS Key West and the 2003 Environmental Assessment. It was not until some time after the publication of the 2003 EA and the FONSI, that the Navy first asserted that the 2003 EA pertained to and exonerated the introduction of the Super Hornet to NAS Key West. The Navy performed a separate and unrelated Environmental Impact Statement for the Introduction of the Super Hornet to the East Coast of the United States (dated July, 2003), but that analysis did not include NAS Key West. The Navy has refused to identify the earliest document that connects an evaluation of the Super Hornet with the 2003 EA.

3. NEPA Environmental Assessment documentation requires identification of a Proposed Action and a listing of Alternatives. There is no mention of the Super Hornet in either the Proposed Action or the Alternatives and therefore the 2003 EA did not complete and satisfy the NEPA requirements as claimed. 
4. The FONSI does not mention the Super Hornet. Their claim that the FONSI “…completed and satisfied the NEPA requirements…” for analysis of “…all transient aircraft operations, including the F/A-18E/F operations…” at NAS Key West cannot be true, since it does not mention the aircraft.

5. Among ten pages of references, one lone reference in the 2003 EA pertains to aircraft: The “Wyle Laboratories Draft Noise Study for Forecast CY07 Conditions at NAS Key West.” The Adobe Reader “document properties” for the study indicates that the author of the 2003 study was “Jrachami” (possibly Jawad Rachami of the Wyle Acoustics Group, who, ten years later, is also the Principal-In-Charge of the January 2013 F-35 FEIS NAS Key West Noise Study, connected to the Record of Decision discussed here). The “creation date” of the study was “Apr 24, 2003,” ten days AFTER the signing of the final document. The Navy has refused to explain the anachronism.

6. Notwithstanding the Navy’s inability to locate the Draft version of the 2003 EA (released to the public and reporting agencies prior to the publication of the EA itself) in response to a Freedom of Information Act request and appeal, I subsequently located a copy and copied pertinent pages. The Draft contains absolutely no mention of the Super Hornet, and the EA’s “Wyle Lab” reference is absent. Thus, there is no evidence whatsoever that the Environmental Assessment process that began on October 2, 2002 was intended to evaluate the impacts of the Super Hornet, despite the Navy’s false assertions after the fact.

References:
All corroborating documentation can be downloaded from this link.

A complete investigation of this matter would include Department of Defense Office of Inspector General Cases #105900 and #113851; and Government Accountability Office Control #51428, which are likely to reveal important details to FBI investigators that are not visible in the heavily redacted public reports.

Sincerely,

John G. Hammerstrom
Commander, USN (Ret)

Cc: U.S. Congressman Joe Garcia
Monroe County Florida Commissioner Sylvia Murphy
Former Commissioner Kim Wigington
Richard Grosso, Esq.
Naja Girard - The Blue Paper website - www.thebluepaper.com
Ethan Rosenkranz - Project on Governmental Oversight - www.pogo.org

The Navy Stonewalls

Sun, 19 Jan 2014 14:54:48 -0500

Attached is the Navy’s response to questions asked on November 12, 2013.

For reference, here is the letter the Navy was responding to:

November 12, 2013
Mr. Ted Brown
Public Affairs Officer
United States Fleet Forces Command
1562 Mitscher Avenue, Suite 250
Norfolk, VA 23551-2487

Dear Mr. Brown,

The final step in a three-year process analyzing the potential impacts of introducing the F-35 to Naval Air Station Key West occurred on October 31, 2013, when Roger M. Natsuhara, Principal Deputy Assistant Secretary of the Navy (Energy, Installations & Environment) signed the Record of Decision (ROD) for the NAS Key West Final Environmental Impact Statement (FEIS). Three weeks earlier, officials from Monroe County and our Congressman, Representative Joe Garcia, met with the Navy to discuss several concerns.

One of our concerns, as expressed in the ROD, was that “…impacts associated with the F/A-18E/F Super Hornet were included in the FEIS baseline, notwithstanding the fact the impacts to the surrounding community were not properly evaluated in previous National Environmental Policy Act (NEPA) documents. Including the Super Hornet has the effect of reducing the magnitude of [F-35] impacts…” In stark personal terms, according to FEIS data, that means that 2,416 people in the vicinity of NAS Key West have been living with the impacts of the Super Hornet (the baseline) for a decade without the benefit of the environmental impact assessment promised them by NEPA, and the F-35 introduction would “only” affect 366 more people.

That concern remains unresolved and I write here as an individual to elaborate on Monroe County’s statement that the “…impacts of the…Super Hornet…were not properly evaluated…” which conflicts with the Navy’s often-repeated assertion that the impacts were properly evaluated.

For example, the FEIS (Section 1.3.1, page 1.4) states that the 2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West “…addressed the Navy’s transition from the F-14 Tomcat aircraft to the FA-18E/F Super Hornet…”

The Record of Decision is more expansive. “The 2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West analyzed potential impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A18E/F operations. As a result of that analysis, the DoN reached a Finding of No Significant Impact on April 14, 2003, which completed and satisfied the NEPA requirements associated with the introduction of the F/A-18E/F Super Hornet at NAS Key West.”

As you may know, I have studied the EA and all of the related documents. I hope you will help me understand some perplexing issues.

1. I have been unable to find any record prior to 2007 in which the 2003 EA is mentioned in conjunction with the introduction of the Super Hornet at NAS Key West. Would you please identify the earliest public notice declaring that the 2003 Environmental Assessment would include an analysis of the impacts of the Super Hornet at NAS Key West?

2. NEPA documentation requires identification of a Proposed Action and a listing of Alternatives. If the 2003 EA satisfies the Navy’s NEPA obligations, why is there no mention of the Super Hornet in either the Proposed Action or the Alternatives?

3. The complete family of documents that constitute the entire NEPA record for this EA consists of more than 500 pages, from the “brief letter” of October 2, 2002, through the final document—the Finding of No Significant Impact (FONSI)—signed April 14, 2003. The Super Hornet is only mentioned on three pages. Please explain how it is possible that three pages, or less than 1% of the documentation, constitutes a proper evaluation of the aircraft’s impacts?

4. The FONSI does not mention the Super Hornet. How is it possible for the FONSI to complete the NEPA requirements for analysis of the Super Hornet, when the aircraft is not mentioned?

5. A one-line reference, “Wyle Laboratories Draft Noise Study for Forecast CY07 Conditions at NAS Key West” is listed in the 2003 EA. A Freedom of Information Act request resulted in a PDF document on a CD. The Adobe Reader “document properties” for that Wyle Lab study indicates that the author was Jrachami, and the “creation date” was Apr 24, 2003. Please explain the apparent anachronism of this EA reference having been created ten days after the FONSI was signed.

6. A Freedom of Information Act request and an Appeal for a copy of the Draft 2003 EA (that preceded the Environmental Assessment itself) were both denied because a copy couldn’t be located, despite the facts that the document had been distributed to at least eleven public agencies and was the subject of a “diligent” search by then Commanding Officer of Naval Air Station Key West, Captain J.R. Brown; the Judge Advocate General of the Navy (Code 34); the Department of the Navy Office of General Counsel; the Assistant General Counsel (Installations and Environment) and the Chief of Naval Operations Environmental Readiness Division (N45). Curiously, Monroe County Commissioner Kim Wigington later requested a copy and was denied access with the statement, “Exemption (b)(5)…[protects] inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Please state whether the Navy located a copy and please explain further the justification for exempting a public document.

7. Subsequent to the Navy’s inability to locate the Draft 2003 EA, I found and photocopied the public document. There is absolutely no mention of the Super Hornet in the Draft EA, and the EA’s “Wyle Lab” reference is absent. Please explain the incongruity of the Navy’s claim that they analyzed the Super Hornet in accordance with NEPA regulations, when the Draft EA is void of any reference to the aircraft.

Respectfully Submitted,

John G. Hammerstrom, Commander, USN (Ret.)

Cc: Congressman Joe Garcia
Monroe County Board of County Commissioners
Kim Wigington
Richard Grosso, Esq.
TheBluePaper.com

Record of Decision - The Fraud Persists

Sun, 3 Nov 2013 17:42:39 -0500

The Navy has proposed to fly the F-35 at Naval Air Station (NAS) Key West and has released the NAS Key West Airfield Operations Final Environmental Impact Statement (FEIS) to evaluate its impacts, as they are legally required to. Despite their claims, the Navy has not complied with the same obligations for the louder (according to their data) and earlier cousin of the F-35, the FA-18E/F “Super Hornet,” that is a benchmark for the F-35 study. The Navy’s assertion that a 2003 Environmental Assessment (EA) “…addressed the Navy’s transition from the F-14 Tomcat aircraft to the FA-18 E/F Super Hornet…” is false, as is clearly detailed below with hyperlinks to corroborating documents.

On page 16 of their October 31, 2013 Record of Decision, the Navy repeated the same lies with regard to the 2003 EA that were originally stated in 2007. Perhaps it is true that if you tell a lie often enough, it becomes the truth.

The FEIS (Section 6, Aircraft Noise Study for NAS Key West) clearly indicates the huge relative noise impacts of the FA-18E/F (see Figure 6-4 below), a fact reinforced by several other Navy documents showing the Super Hornet can be more than four times as loud as the F-14 aircraft it replaced (more than 20dB in some cases, according to Navy data), and yet the Navy claims that the introduction of the Super Hornet to Key West had “No Significant Impact.”

Aircraft Noise Study for Naval Air Station Key West, Draft Final WR-12-13, January 2013 Section 6 - Day-Night Average Sound Level (DNL) Contributor Analysis

The Navy is cheating to compound their gains by building on a fraudulent base.
If allowed, the Navy would:

1. Entrench the Super Hornet operations at NAS Key West by including that loud aircraft in the Baseline “No Action Alternative” of the F-35 aircraft EIS,
2. Bestow on the Super Hornet an unearned patina of legal compliance by including it in the F-35 FEIS,
3. Argue that the F-35 would cause “imperceptible to slight” impacts because it is compared to the louder Super Hornet, all of which would
4. Rationalize the Super Hornet operations and justify the F-35 operations, both of which trivialize the Navy’s responsibility to mitigate the actual impacts on the affected citizens.

Details of the fraud and—maybe more importantly—the failure of oversight agencies to find wrongdoing, are documented below.

&&&&

On August 15, 2012, the Monroe County (Florida) Board of County Commissioners voted unanimously to send a 12-page letter commenting on the “NAS Key West Airfield Operations Draft EIS.”

Comment one (of forty-one) reads as follows:

1. “Revise the Baseline (No Action Alternative) to Exclude the FA-18E/F Super Hornet and Evaluate the Super Hornet as a Next Generation Aircraft in the Alternatives. Section 1.3.1 (page 1-4) [of the Draft EIS] states that the Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NASKW (DoN 2003a) addressed the Navy’s transition from the F-14 Tomcat aircraft to the FA-18E/F Super Hornet. Despite this claim, there has been no adequate NEPA [National Environmental Policy Act] evaluation done of the impacts associated with the introduction of F/A-18E/F Super Hornet to NASKW. The Navy has claimed that the 2003 Environmental Assessment for Fleet Support and Infrastructure Improvements and the April 14, 2003 Finding of No Significant Impact (FONSI) satisfies their obligations to evaluate the introduction of the Super Hornet to NASKW, despite the fact that there is no mention of the Super Hornet in any of the documents leading up to the Final EA, and no mention of the aircraft in the Proposed Actions, nor the Alternatives, nor in the FONSI. Among the 500+ pages of NEPA documentation surrounding that EA, the Super Hornet is mentioned in only three pages…There is one "reference" in the EA that discusses the Super Hornet. The creation date of that document was after the date of the FONSI. 
“In the Navy’s 2003 Final Environmental Impact Statement for the Introduction of the F/A-18E/F Super Hornet Aircraft to the East Coast of the United States, the impacts resulting from F/A-18E/F Super Hornet operations at NASKW were not discussed. The Navy has failed to fulfill its NEPA obligations by virtue of not having completed a thorough analysis of the impacts of the Super Hornet. This is very important, since according to the DEIS (Draft Aircraft Noise Study for NAS Key West - WR-12-13; June, 2012, page 61, Table 7-1), the Super Hornet is approximately twice as loud as the F-35 in the Non-Break Arrival, Touch and Go, FCLP and GCA Box patterns. [note to reader: a ten decibel increase is perceived as twice as loud, and a 20-decibel increase, four times as loud.] Since it has not been adequately evaluated in an EA or EIS, the impacts of the Super Hornet should be removed from the existing baseline / No Action Alternative, and added as an introduced next generation aircraft in Alternatives 1, 2, and 3…”

In response to the Monroe County Commission letter, a Key West Citizen newspaper article stated the Navy continues to maintain that “…its research met legal guidelines of the National Environmental Policy Act.” A September 30, 2012 Key West Citizen article continues the story.

In their FEIS, the Navy has replied to most comments submitted by Monroe County, other agencies and members of the public in Appendix B. Their position on the Super Hornet and the fraudulent baseline it represents in the F-35 impact study remains unchanged.

On August 21, 2013, the Monroe County Board of County Commissioners (BOCC) unanimously authorized “…County Administrator, staff and K&S (consultant Keith & Schnars) to meet with senior Navy policy officials, the White House Council on Environmental Quality, White Office of Intergovernmental Affairs, members of the Florida congressional delegation and County lobbyist to discuss the County’s continuing concerns with the FEIS…” The discussion topics include a proper evaluation of the baseline condition as described in this BOCC agenda item.

Monroe County sent this letter to Navy Secretary Ray Mabus, dated August 22, 2013.

The subject was covered in the August 23 edition of the Airport Noise Report.

The Miami Herald described the issues and history in this article.

As reported to Monroe County by their consultant Michael L. Davis, “On October 3, 2013 Congressman Joe Garcia, Roman Gastesi (County Administrator), Bob Shillinger (County Attorney), Lisa Tennyson (Director Legislative Affairs and Grants Acquisition) and Mayte Santamaria (Assistant Director of Planning and Environmental Resources) [and Michael L. Davis (Vice President, Keith and Schnars, P.A.)] met in Washington, DC with the Honorable Dennis McGinn, Assistant Secretary of the Navy (Energy, Installations and Environment). The purpose of the meeting was to discuss Monroe County’s concerns with the Navy’s Final Environmental Impact Statement (FEIS) for operations at Naval Air Station Key West (NASKW). This meeting was requested by the Monroe County Board of County Commissioners in an August 22, 2013 letter to the Secretary of the Navy. The meeting was arranged with the help of Congressman Garcia and took place in his House office in the Longworth building.” The attached presentation was made. The effect of the meeting, while positive on the surface, remains to be seen.

&&&&

In 2007, as the number of Super Hornet flights and associated noise increased around Naval Air Station Key West, citizens asked questions of the Navy. The Navy responded that they had evaluated the local impacts of the louder aircraft in a 2003 “Environmental Assessment” (EA), and had issued a “Finding of No Significant Impact” (FONSI). While these documents were well known locally because their subject was proposed dredging of Key West Harbor, there is no record before 2007 of the Navy’s claim that the same 2003 EA and FONSI also applied to, and exonerated, the Super Hornet.
[Note: Some make the incorrect assumption that the Super Hornet is a minor variant of the Hornet. The F/A-18E/F (or FA-18E/F) Super Hornet as well as the EA-18G Growler are significantly different aircraft compared to what is often called the “Legacy” FA-18C/D Hornet (minus the “Super”). The Super Hornet and Growler include many payload, range, endurance, survivability and reliability improvements; are larger, heavier and—most significantly to the much-greater noise they generate—have a bigger engine (GE F414) that produces 35% more thrust. With the exception of the forward fuselage, the Super Hornet shares little with the Legacy Hornet except a familial resemblance. Unless side by side, they are difficult for the novice to differentiate. Perhaps the most easily recognized difference is that the Super Hornet has rectangular engine intakes, while the Legacy Hornet’s engine intakes are rounded. The Blue Angels fly Legacy Hornets. (B and C models). Illustrative of its much greater capabilities, the Super Hornet replaced the F-14 Tomcat and it is that transition that the Navy claims was addressed in the the 2003 Environmental Assessment and which is discussed here.]
As you will read below, the Navy’s Super Hornet Environmental Assessment and FONSI claims are fraudulent and their malfeasance was compounded by withholding a critical “smoking gun” document. Since the first Super Hornet inquiries in 2007, the Navy has abused their authority, lied and stonewalled. More disturbing, despite clear facts, none of the government agencies charged with oversight of the Navy, nor the next level of overseers charged with scrutiny of the oversight agencies have found any wrongdoing.

In June 2012, the Navy released the “NAS Key West Airfield Operations Draft Environmental Impact Statement” (Draft EIS or DEIS), which states falsely that the 2003 EA “…addressed the Navy’s transition from the F-14 Tomcat aircraft to the FA-18E/F Super Hornet…” [DEIS, Section 1.3.1, page 1-4]. The same spurious statement is made in the Final EIS, on the same page.

It is illustrative to compare the Navy’s “by the book” F-35 impact documentation with the parallel but void documentation of its older, louder cousin, the Super Hornet.

The F-35 DEIS and FEIS were distributed widely and announced by public notices and meetings. The DEIS and FEIS detail the “Proposed Action” of flying the F-35 at NAS Key West, and describes “Alternatives,” which define different possible levels of flight operations and their associated impacts.

By contrast, there were no public notices announcing the introduction of the Super Hornet, nor was the aircraft referred to in the “Proposed Action” or the “Alternatives” of its claimed NEPA document. In fact—amazingly—the Draft of the EA that the Navy claims evaluates the Super Hornet (the equivalent of the F-35 Draft EIS) does not mention the airplane. Not once.

&&&&

Encroachment in the form of new land development near Naval Air Stations is rightfully resisted by Navy authorities. Those who knowingly build or buy a home within noise areas and then complain about the din have encroached and deserve little audience. However, when the Navy replaced the F-14 Tomcat with the Super Hornet, it was they who encroached on the community. Patriotic citizens in the vicinity of NAS Key West who dutifully bought homes outside of the published noise zones are currently living inside of noise zones because of a much-louder aircraft with a larger sonic footprint. Lying to the public adds insult to injury.

This commentator is a retired Naval Aviator who believes in and supports the mission of the U.S. Navy, having served over 25 years in defense of the U.S. Constitution as an enlisted machinist, aircraft-carrier based pilot and Aeronautical Engineering Duty Officer. The Navy has a vitally important mission, and an increasingly challenging training environment in which to prepare for it. They have the right and duty to accomplish that mission, but they do not have the right to break our nation’s laws in the process.

Below is the story with hyperlinks to corroborating documents, including the failure of numerous oversight organizations to take action in the face of blatant malfeasance, crowned by the Navy Inspector General’s liberally redacted March 23, 2011 self-exoneration.

The list of allegations has grown since the original complaint.

1. The Navy fraudulently claims that the “April 2003 Environmental Assessment for Fleet Support and Infrastructure Improvements - Naval Air Station Key West” (2003 EA) satisfies their obligations under the National Environmental Policy Act (NEPA) to "…assess environmental consequences of proposed actions that could affect the quality of the human environment…" for the introduction of the F/A-18E/F Super Hornet to NAS Key West.

1. The Navy fraudulently claims that the April, 14, 2003 "Finding of No Significant Impact" fulfilled their NEPA requirements regarding the Super Hornet.

1. The Navy’s legal obligation to assess the environmental impacts of replacing the F-14s with the Super Hornets remains unfulfilled, and now the Navy is compounding the fraud in the FEIS by using the loud Super Hornet as a baseline and asserting the new F-35 impacts would not be so bad by comparison.

1. In failing to deliver the “Pre-Release Environmental Assessment” (known also as the “Draft Environmental Assessment”) asked for in FOIA File Number DON 200800645-F, the Navy has attempted to withhold the “smoking gun” document that proves the 2003 EA was not intended to study the Super Hornet.

1. Assistant Navy Secretary B.J. Penn has misrepresented the facts in his letter of December 12, 2007, making false and deceptive statements.

1. The Department of Defense Office of Inspector General failed - twice - to find any wrongdoing.

1. The Navy Office of Inspector General found no wrongdoing.

1. The FBI failed to find any wrongdoing.

1. Senator Bill Nelson found no wrongdoing.

1. The General Accountability Office abdicated responsibility to the DODIG and then failed to review the matter despite clear evidence of fraud.

1. The Council of the Inspectors General for Integrity and Efficiency failed - twice - to find any wrongdoing.

&&&&

Background: U.S. Federal law (32 CFR 775.3 and 775.4) states,

"The Department of the Navy shall assess environmental
consequences of proposed actions that could affect the quality
of the human environment in the United States, its territories,
and possessions in accordance with DOD and CEQ
regulations."

The F-14 Tomcat was replaced by the F/A-18E/F Super Hornet throughout the Navy, including Naval Air Station Key West. Department of the Navy documents indicate that the Super Hornet generates significantly greater noise than the Tomcat. In the “Approach” pattern when an aircraft is preparing to land, the Super Hornet is as much as 27 decibels louder than the Tomcat.1 That’s more than four times as loud. The Navy projected at NAS Key West there would be 25% more Super Hornet operations flown in 2007 compared to F-14 operations in 2001. 2 Clearly, a much louder airplane flying more operations would “…affect the quality of the human environment.” However, Navy officials as high as the Honorable B.J. Penn, Assistant Secretary of the Navy for Installations and Environment, assert that the Navy is in compliance with the requirements of the National Environmental Policy Act (NEPA), that a proper Environmental Assessment was accomplished and that the introduction of the Super Hornet to NAS Key West would have no significant impact. The facts clearly contradict the Navy’s assertions.

In a December, 2007 letter on this subject, Secretary Penn stated,

“In 2003, the Navy complied with NEPA for transient aircraft operations
at NAS Key West by completing the Environmental Assessment (EA)
for Fleet Support and Infrastructure Improvements.
That EA, and it incorporated references, analyzed impacts to the human environment, including noise and flight paths resulting from all
transient aircraft operations, including the F/A-18E/F.
As a result of that analysis, the Navy reached a
Finding of No Significant Impact which addressed
off-base noise exposure from aircraft
operating at NAS Key West.”

To comply with NEPA, Navy regulations 3 require a “brief letter” be sent to the Chief of Naval Operations (N45) announcing that they “propose an action,” and that they intend to initiate NEPA documentation. The “brief letter” that precipitated the 2003 Environmental Assessment referred to in Secretary Penn’s letter was sent by Captain L.S. Cotton, Commanding Officer, NAS Key West on October 2, 2002.

There is no mention of the F/A-18E/F Super Hornet in the “brief letter.”

On October 4, 2002, Darrell Molzan, Environmental Planning Division Director of the Naval Facilities Engineering Command notified the Florida State Clearinghouse and the Florida Department of Community Affairs (DCA) that the Proposed Action “…is a group of projects to provide improved or additional capability essential to support services for transient units at NAF Key West.”

There is no mention of the F/A-18E/F Super Hornet in the Florida Clearinghouse notice to Florida Department of Community Affairs.

In early 2003, the Navy distributed a “Pre-Release Environmental Assessment (EA)” to at least eleven public agencies for their comments on the “proposed action.” These agencies’ jobs were to evaluate the “action” for potential impacts and submit comments for inclusion in the Environmental Assessment document. The agencies that received the “Pre-Release” document include U.S. Department of Interior, Fish and Wildlife Service, Florida Fish and Wildlife Conservation Commission, Florida Department of Transportation, South Florida Water Management District, Florida Department of Environmental Protection, Florida Keys National Marine Sanctuary, United States Department of Commerce, and the National Oceanic and Atmospheric Administration.

The 2003 Environmental Assessment includes letters from those eleven agencies and there is no mention of the F/A-18E/F Super Hornet in any of their comments.

On February 26, 2008 a Freedom of Information Act request to NAS Key West was made by this commentator for a copy of the Draft or “Pre-Release EA.” Captain J.R. Brown, Commanding Officer of NAS Key West replied, “Our search for records included files maintained by the Naval Air Station (NAS) Key West Business Office and the NAS Key West Environmental Department. However, despite this diligent search, we were unable to locate responsive documents.” The FOIA denial was appealed to the Judge Advocate General of the Navy (Code 34) on April 2, 2008. A Final Administrative Adjudication of that appeal was sent on November 7, 2008 letter from The Department of the Navy Office of General Counsel. In that letter, Deputy General Counsel Anne M. Brennan stated,

“…the Assistant to the General Counsel (FOIA) contacted the IDA [Initial Denying Agency - NAS Key West] regarding the search procedures undertaken to locate responsive documents and confirmed the adequacy of that department’s search procedures. My office also contacted the Assistant General Counsel (Installations and Environmental) who, in turn, contacted the Chief of Naval Operations Environmental Readiness Division (N45). Neither of these offices was able to locate a copy of the pre-release draft [EA].”

Subsequent to the Navy’s declaration that they could not find a copy of that document, this commentator found the document and photocopied relevant pages. These facts were also made known to the DOD Office of Inspector General, adding the question “Did the Navy destroy all of their copies of the document that could prove that the 2003 Environmental Assessment was never intended to evaluate the environmental impacts of the Super Hornet at NAS Key West?”

If the Navy intended for the 2003 Environmental Assessment to address the potential impacts of the F/A-18E/F Super Hornet, there would be discussion of the aircraft in the Draft document. This is the smoking gun that would expose malfeasance and the Navy could not find the document.

There is no mention of the F/A-18E/F Super Hornet in the pre-release draft EA.

Adding to the intrigue surrounding the Draft EA, in November, 2011, Monroe County Commissioner Kim Wigington asked the Navy for a copy of the document, which was denied. The FOIA Appeal (F12037) was also denied. Nevertheless, the Navy seems to have found the document, but claimed in their January 3, 2012 letter to Monroe County, “Exemption (b)(5)” which they said “…[protects] inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” How can a public document be exempted?

The final EA was published in April, 2003. The planned governmental activity—its Proposed Action—is “…to modernize ship and aircraft support functions and facilities at the Naval Air Station (NAS) Key West including Boca Chica and Truman Harbor.” The document details the potential environmental impacts of dredging and providing support facilities in the Key West area.

There is no mention of the Super Hornet in the EA Table of Contents, or the Proposed Action, or the Alternatives, and the aircraft is only mentioned briefly on three pages. That isolated, three-page section at the end of Chapter 4—Section 4.10—is curiously unrelated and unconnected to the remaining 229 pages of the EA, and more significantly, is totally absent in the Draft version of the document that would have informed the public and organizations interested in commenting on the proposed action.

Here, for comparison, is the Section 4.10 from the Pre-Release or Draft EA that does not mention the Super Hornet and the same Section 4.10 from the final EA, showing the lonely and irrelevant three pages that mention the Super Hornet.

Following an Environmental Assessment, NEPA regulations require the agency that has proposed the “action” to either fully evaluate the environmental impacts, by producing an “Environmental Impact Statement,” or—if they have determined that there will be no significant environmental impacts—to publish a “Finding of No Significant Impact” statement.

On April 14, 2003 (remember this date), T.R. Crabtree, Director, Shore Activities Readiness, U.S. Atlantic Fleet signed a “Finding of No Significant Impact” statement, or FONSI, stating that “Based on the information gathered during the preparation of the EA, the Navy finds that fleet support and infrastructure improvements as Naval Air Station (NAS), Key West, will not significantly impact the human environment.” This is the final step in the Navy’s claimed NEPA process.

Among all 500+ pages of NEPA documents generated over six months in preparing and publishing the 2003 EA and the subsequent Finding of No Significant Impact, the F/A-18E/F Super Hornet is mentioned on only three pages. Put another way, 497 of the 500 pages of the claimed NEPA documentation have nothing to do with the Super Hornet.

Over 99% of the Navy’s claimed NEPA documentation has nothing to do with the Super Hornet
zero
nada
zip

Neither this commentator nor any of my community colleagues who have lived with this travesty and who originally initiated the inquiry with NAS Key West officials are aware of any document prior to 2007 in which the Navy connected the 2003 EA with their NEPA obligations to evaluate the environmental impacts of introducing the Super Hornet to Key West.

The glaring incongruity of the Navy claiming that they analyzed the impacts of the Super Hornet, when more than 99% of the claimed documentation makes no mention of the airplane, caused this writer to contact the Government Accountability Office (GAO).

The original complaint was lodged with the GAO on November 7, 2007. The GAO assigned Control Number 51428, and referred the matter to the Department of Defense, Office of Inspector General (DODIG), where Case Number 105900 was initiated.

As referred to earlier, Assistant Secretary of the Navy (Installations and Environmental) B.J. Penn was asked to explain the facts and the Navy’s claim of satisfying their NEPA requirements in a 2007 letter from environmental law professor Richard Grosso, General Counsel of the Everglades Law Center. Secretary Penn’s response deceptively stated that the Environmental Assessment “…and its references” satisfied the NEPA requirements.

There are several problems with Secretary Penn’s use of the “…and its references…” phrase. First, the term “references” should be singular, not plural. There is only one, single-line reference in a list of 160 references that has anything to do with airplanes—the Wyle Laboratories (April) 2003 Draft Aircraft Noise Study (see image from EA list of references below).

Second, this solitary Super-Hornet-related reference in the final EA is absent in the Draft EA, so neither the public nor the reporting agencies were aware of the Wyle study prior to the final EA itself, which explains the absence of any reference to the Super Hornet or the Wyle Lab study in the EA comments.

Third, if the Navy is basing their claimed compliance with NEPA on one reference not present in the Draft version and buried in the final version of an otherwise unrelated NEPA document, what’s to preclude using this ploy to satisfy a long list of NEPA documentation obligations in one EA? Using this logic, the Navy could issue a Draft EA for one benign “action,” add into the final EA a long directory of new references that pertain to other potential “actions,” issue a Finding of No Significant Impact statement, and then later claim that the EA and FONSI satisfy the NEPA obligations for the whole list of referenced “actions,” while completely avoiding the pesky public-comment process.

Fourth, and most concerning, it appears that this solitary reference was actually created after both the EA and the FONSI. In response to a FOIA request to Lt. Adrienne Gagliardo, NAS Key West FOIA Officer and to NAS Key West Public Affairs Officer James Brooks, the Draft Aircraft Noise Study was delivered to this commentator by the Navy on a CD. Missing from the document were the title page, which presumably would have the date of publication, and any other pages prior to the Table of Contents. Nevertheless the header on each page shows “April 2003.” A publication date of April, 2003 means that it was not available when the Draft EA was released. Most damning, the Adobe Reader “document properties” indicate this lonely reference was created on April 24, 2003, by “jrachami” (presumably Jawad Rachami, an engineer with the Wyle Acoustic Group), ten days after the April 14, 2003 Finding of No Significant Impact was signed!

Below is a screenshot showing the April 24, 2003 creation date of the Wyle Laboratories “Draft Aircraft Noise Study for Forecast CY07 Conditions at NAS Key West.”

Setting aside the incriminating anachronism of a reference showing up in a version of the EA more than 10 days before it was created, is the Navy claiming that the contents of this lone reference, a document completely unrelated to the rest of the EA, a single reference in a list of 160 references, validates the Environmental Assessment and satisfies their NEPA obligations?

At the very least, the fact that this reference is not present in the Draft EA confirms that the Navy never intended for this NEPA process to involve the Super Hornet.

It is noteworthy that Mr. Rachami is also the Principal-In-Charge of the January 2013 F-35 FEIS NAS Key West Noise Study, ten years later.

Although there are no documents to corroborate this (but the search continues), anecdotal reports from several eyewitnesses are that the Key West Library copy of the original final 2003 EA—which dealt with dredging and other unrelated issues to—had neither the three-page mention of the Super Hornet in Section 4.10 nor the Wyle Lab reference. Those eyewitnesses claim that some time in 2007, the earlier version was replaced with the current version, which includes both Section 4.10 and the Wyle Lab citation.

The most outrageous possibility is that the one-line reference and the three-page Section 4.10 were inserted in a second printing of the final Environmental Assessment and the original EA and Draft EA copies in their possession were destroyed.

The only Super Hornet “reference” in the final EA was created after the Finding of No Significant Impact was signed and is absent in the Draft EA!

&&&&

In July, 2003, three months after the EA in question was published, the Navy published a completely different study, the “Final Environmental Impact Statement for the Introduction of the F/A-18E/F (Super Hornet) Aircraft to the East Coast of the United States,” to address the environmental impacts of replacing the F-14 with the F/A-18E/F.

The FEIS Abstract reads, “This Final Environmental Impact Statement (FEIS) evaluates the potential environmental consequences of the Department of the Navy’s (the Navy’s) proposed action to provide facilities and functions to support the homebasing and operation of the new F/A-18E/F (Super Hornet) aircraft. These aircraft are planned for assignment to the Atlantic Fleet to replace the F-14 (Tomcat) and earlier model F/A-18C/D (Hornet) aircraft…”

Surprisingly, that FEIS did not include the environmental impacts on NAS Key West, even though NAS Key West is one of the most important East Coast airfields and the Navy planned more Super Hornet operations at NAS Key West than some of the airfields that were included in the FEIS.

In January, 2008, Senator Bill Nelson held a “Town Hall” meeting in Key West, where he was shown this linked PowerPoint presentation. He found no wrongdoing.

In August, 2009, DODIG released their final report for Case 105900, finding no wrongdoing.

Later that month, another letter was written to GAO, explaining that the original issues had not been addressed, and that there were even more serious issues resulting from the Navy’s stonewalling.

In September, 2009, a letter was written to the FBI explaining the fraud. No response was received from the FBI.

The Council of the Inspectors General for Integrity and Efficiency (CIGIE) is supposed to oversee all of the Inspectors General. A letter outlining the serious issues that were dismissed by DODIG was sent to Mr. Mark Jones, Acting Executive Director of CIGIE on September 29, 2009.

Mr. Kevin L. Perkins, Chair of the Integrity Committee (IC) of CIGIE stated in a letter dated October 28, 2009, “The IC concluded that the actions by the OIG (Department of Defense Office of Inspector General) properly fell within the discretion of an IG and consequently did not meet the threshold standard for further consideration of the complaint. Accordingly, the IC will take no further action and directed that this complaint be closed.” Thus, Mr. Perkins referred the matter back to the accused IG office, despite the fact that the purpose of his committee is “…to review allegations of wrongdoing received against an IG…”.

Since the matter was referred back to the DOD Inspector General, a letter was written to Mr. Gordon Heddell, DOD Inspector General, in hopes that the original transgressions as well as the new, subsequent malfeasance would be investigated. He created a new Case number - 113851. To be certain that Mr. Heddell was aware of the growing number of lies associated with this issue, a letter was sent to him on January 21, 2010 updating the expanding list.

Not surprisingly, the DODIG again found no wrongdoing in the report dated October 29, 2010.

Another letter was sent to Mr. Mark Jones, Executive Director, CIGIE on November 13, 2010 arguing that it was folly for him to ask DODIG to investigate themselves. In his reply, Mr. Jones stated that “…based on available information the DOD IG was not precluded from conducting a further objective review of the matters you allege.”

The final report from the Navy Inspector General is dated March 23, 2011, in which Mark A. O’Brien, Assistant Counsel found no malfeasance, but did provide some much-needed comic relief with the extensive redacting.

Unanswered Questions

✦ There is no record prior to 2007 of any connection between the 2003 Environmental Assessment and the evaluation of Super Hornet impacts at NAS Key West. On what date and in which specific document did the Navy first notify the public that the 2003 Environmental Assessment was intended to fulfill NEPA documentation for the introduction of the F/A-18E/F Super Hornet to NAS Key West?

✦ The Super Hornet is not mentioned in any NEPA document that preceded the April 2003 final Environmental Assessment. How does the Navy reconcile their claim that this NEPA process “…addressed the Navy’s transition from the F-14 Tomcat aircraft to the FA-18E/F Super Hornet…” with the fact that all of the antecedent documents are completely unrelated to that subject?

✦ NEPA Environmental Assessment documentation requires identification of a Proposed Action and a listing of Alternatives. If the 2003 EA satisfies the Navy’s NEPA obligations with regard to introduction of the Super Hornet to Key West, why is there no mention of the Super Hornet in either the Proposed Action or the Alternatives?

✦ The complete family of documents that constitute the entire NEPA record for this Environmental Assessment, from the “brief letter” of October 2, 2002, through the FONSI of April 14, 2003 consists of more than 500 pages. How can the Navy claim, with a straight face, that this NEPA process pertains to and exonerates the Super Hornet, when the airplane is mentioned on only three of those pages?

✦ How is it possible that a much louder new airplane, flying 25% more operations, would have “no significant impact?”

✦ How does the Navy explain their claim that the Finding of No Significant Impact (FONSI) exonerates the Super Hornet, when it does not mention the airplane?

✦ How is it possible that replacing the F-14 Tomcat with the Super Hornet at NAS Key West would cause “no significant impact,” when the same proposed action elsewhere was found to deliver significant impacts, precipitating a 1,087-page FEIS?

✦ How is it possible that a “diligent” search by the U.S. Navy, including the Commanding Officer of Naval Air Station Key West, Captain J.R. Brown; the Judge Advocate General of the Navy (Code 34); the Department of the Navy Office of General Counsel; the Assistant General Counsel (Installations and Environment) and the Chief of Naval Operations Environmental Readiness Division (N45) failed to locate the incriminating and widely distributed Pre-Release (or Draft) Environmental Assessment, but—acting alone—the author of this commentary did?

✦ Who was responsible for placing the unrelated and orphaned three-page Section 4.10 in the 2003 EA and when was it added?

✦ When was the one-line “Wyle Laboratories” citation inserted in the EA and by whose direction?

✦ Is the Navy claiming that the contents of the Wyle Lab study, a separate document unrelated to the EA purpose, identified only by a single, one-line citation among 160 references but not referred to anywhere within the EA body and not present in the Draft EA, validates that EA and satisfies their NEPA obligations?

✦ Why is the “Wyle Laboratories” reference missing from the Draft EA?

✦ How is it possible that the EA has a reference to a document that was created well after the EA was published and ten days after the subsequent FONSI was signed?

✦ Is Assistant Secretary Penn’s use of the term “transient aircraft” meant to exonerate the Super Hornet by implying that aircraft flying at NAS Key West somehow make less noise if their permanent parking place is somewhere else?

✦ How is it possible that none of these “watchdog” agencies found anything wrong? Did they simply believe statements from the Assistant Secretary of the Navy without questioning?

The Government Accountability Office
The Department of Defense Office of Inspector General
The Navy Inspector General
The FBI
The Office of Senator Bill Nelson
The Council of the Inspectors General for Integrity and Efficiency

1 FEIS for the Introduction of the F/A-18E/F (Super Hornet) Aircraft to the East Coast of the United States, July, 2003, page 4-45, comparing F-14B/D to F/A-18E/F in “Approach” configuration.
2 Environmental Assessment for Fleet Support and Infrastructure Improvements, Naval Air Station Key West, April, 2003, Table 4-3, p. 116, comparing F-14 CY01 Operations with projected F/A-18E/F CY07 Operations.
3 In 2003, OPNAVINST 5090.1b was in effect.

&&&&

JH

Inspector General re-opens F/A-18E/F case

Mon, 25 Jan 2010 20:15:26 -0500

Below is the text of a letter written to the Department of Defense Inspector General following their announcement that they have re-opened the case.

January 21, 2010

Mr. Gordon Heddell, Inspector General
Department of Defense
400 Army Navy Drive
Arlington, VA 22202-4704

Subject: DOD IG Case #113851

Dear Mr. Heddell,

Below is an updated version of a previously submitted document. Thank you for reconsidering the matter. This issue is not simply historical, since the residents surrounding NAS Key West continue to live without benefit of the protection promised by the National Environmental Policy Act. Those most adversely and unfairly affected are the citizens who purchased homes outside of the published noise zones, but now find themselves effectively within the noise zones by virtue of the much-louder airplanes.

For the sake of credibility, I’m a retired Navy Commander, Naval Aviator, Aeronautical Engineering Duty Officer, former Engineering Test Pilot and retired international airline Captain. I believe strongly the Navy has fraudulently claimed they’ve fulfilled their National Environmental Policy Act (NEPA) obligations regarding the potential impacts of the F/A-18E/F Super Hornet at Naval Air Station Key West. The fraud may be part of a conspiracy that may go as high as the Assistant Secretary of the Navy (Installations and Environment). While there may be other less incendiary explanations, the evidence I’ve uncovered since my original complaint is increasingly compelling. As you know, DOD IG’s failure to find fault with the Navy’s claim of NEPA compliance in the face of unequivocal evidence was the reason for my submission to the Integrity Committee, which referred the matter back to you.

The subject is the action of introducing the F/A-18E/F Super Hornet aircraft to NAS Key West, and the responsibility of the U.S. Navy to "…assess environmental consequences of proposed actions that could affect the quality of the human environment…" as required by NEPA. At NAS Key West, the “mix” of aircraft changed substantially when the F-14 Tomcats that flew there were replaced by F/A-18E/F aircraft. According to Navy documents (an environmental study done for another location), in the same configuration and flight pattern the Super Hornet is up to four times as loud as the Tomcat. According to the Environmental Assessment that is the subject of this complaint, the Super Hornets were expected to fly up to 25% more operations at that location compared to the Tomcats. Clearly a much-louder airplane flying more operations could have environmental impacts that would “affect the human environment,” and a “Finding of No Significant Impact” would seem unlikely, but that is exactly what the Navy claims.

The original complaint was filed with the Government Accountability Office, which assigned Control number 51428. Apparently GAO jurisdictional limitations required them to transfer the complaint to DOD Inspector General, which assigned Case #105900. In April 2009, the DOD Inspector General closed the case, finding no fault. The matter was then brought before the Integrity Committee of the Council of the Inspectors General for Integrity and Efficiency, which found that “…actions by the OIG properly fell within the discretion of an IG…” which caused me to appeal the matter back to the DOD IG, which has assigned the new Case number 113851.

In the twenty-six months since my original complaint in November 2007, more facts have been uncovered that reinforce the fundamental assertion that the U.S. Navy (sadly, for this retired Naval Aviator) has fraudulently used the unrelated "2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West" to claim they have satisfied their NEPA legal obligations. As a result of my assertion, I also believe that the requirement to assess the impacts of the airplane remains unfulfilled.

The original inquiry questioned whether the Environmental Assessment might have been altered to give the appearance that the Navy had fulfilled their NEPA obligations. While it may be true that the document was not physically altered, there is stronger evidence of the fundamental complaint - that the Navy continues to fraudulently claim that the 2003 EA satisfies their NEPA obligations.

There are four main documents that the Navy claims validates their claim of Super-Hornet NEPA compliance, and it is only the third of the four (the EA itself) that briefly mentions the Super Hornet. The other three documents do not. Of the more than 400 pages in the chain of documents, only 3 pages mention the Super Hornet. How can the Navy claim, with a straight face, that these isolated and unconnected three pages satisfy their NEPA obligations, and how can the DOD IG concur? The Department of Defense Office of Inspector General focused narrowly on whether the EA document itself had been altered, concluded that it had not, and closed the case. That finding obscures the more important and basic assertion that the Navy fraudulently used the 2003 EA to claim fulfillment of their legal obligations.

The four Navy documents I’m referring to are 1) the “Brief Letter”, 2) the Draft Environmental Assessment, 3) the EA itself and 4) the Finding of No Significant Impact:

1. October 2, 2002 – Announcement of intent to assess the potential environmental impacts of an “action.” As required by Navy regulations, NAS Key West Commanding Officer, Captain L.S. Cotton wrote a “brief letter” to advise his superiors of his intent to produce an “Environmental Assessment for Training Facility Improvements and Increased Activities at NAS Key West, FL.” This is the first reference to the Environmental Assessment and the Super Hornet is not mentioned. As of October 2, 2002, the Navy has not declared their intent to study the impact of the Super Hornet at NAS Key West.

2. January, 2003 - A "Draft" Environmental Assessment is distributed to the public and at least eleven agencies for their comments. Again there is no mention of the Super Hornet. This is the smoking gun. The NEPA process requires that affected agencies and the public be given the opportunity to comment on the “proposed action,” and as of January 2003, none are aware that the Navy intends to study the impact of the Super Hornet at NAS Key West. This fact alone is damning and invalidates the Navy’s assertion of NEPA compliance, because neither the public nor any of the eleven reporting agencies were made aware of the Navy’s intent to introduce the Super Hornet to NAS Key West and thus none have evaluated its potential impacts.

3. April 2003 - The Environmental Assessment document itself. Among the 232 pages of the EA, whose proposed action is to “…modernize ship and aircraft support functions and facilities…” there are three pages (pages 115, 116 & 117) that mention the Super Hornet but no mention of the environmental impacts of the aircraft. This is first and only time the F/A-18E/F Super Hornet is mentioned in any NEPA document. Not surprisingly, none of the public comments in the Appendix of the EA mentions the Super Hornet, because the reporting agencies were not apprised of the need to do so in the Draft EA!

4. April 14, 2003 – FONSI. The outcome of an Environmental Assessment is supposed to be either an Environmental Impact Statement (if it is determined that potential impacts exist), or the issuance of a “Finding of No Significant Impact (FONSI).” The Navy issued a “FONSI” letter on April 14, 2003, but stunningly, that document does not mention the airplane that the Navy claims it exonerates!

Incongruously, when the Navy studied the potential impacts of the Super Hornet for potential home bases on the East Coast, they found that the impacts were significant and in July 2003 published the 1,078-page “Final Environmental Impact Statement for the Introduction of the F/A-18E/F Super Hornet aircraft to the East Coast of the United States.” The Navy did not include NAS Key West in that study, even though the Navy projected more Super Hornet flights at NAS Key West than several of the fields they did study.

During my inquiries, I submitted a Freedom of Information Act request to the Navy for a copy of the Draft EA. The Navy was unable to find the document. An appeal to the Navy’s General Counsel was also unsuccessful. Nevertheless, subsequent to the Navy’s inability to find a copy, I located, viewed and copied portions of the Draft EA.

As a result of the additional facts uncovered since my November 2007 Government Accountability Office contact, the list of concerns has grown, as listed below:

A. I believe the Navy has fraudulently claimed that the "2003 Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements at NAS Key West" satisfied their obligations under the National Environmental Policy Act to "…assess environmental consequences of proposed actions that could affect the quality of the human environment…" for the introduction of the F/A-18E/F Super Hornet to NAS Key West. The most easily documented confirmation of this belief is that none of the reporting agencies were made aware that the Super Hornet was to be evaluated. They could not have known, since there is no mention of the aircraft in any document prior to the April 2003 publication of the EA itself.

B. I believe the Navy fraudulently claimed that the April, 14, 2003 "Finding of No Significant Impact" fulfilled their NEPA requirements regarding the Super Hornet, since that document did not mention the airplane.

C. I believe the Navy’s legal obligation to assess the subject environmental impacts remains unfulfilled.

D. I believe the Navy failed to fulfill their obligations under the Freedom of Information Act regarding FOIA File Number DON 200800645-F, a request for a copy of the Draft EA. As stated above, this document is the "smoking gun" that proves the Navy had no intention of evaluating the F/A-18E/F Super Hornet's environmental impact at NAS Key West with the 2003 EA and the Navy claims it could not find the document. How is it possible that a FOIA request and an appeal would both fail to reveal a document that was distributed widely within the Navy system and to at least eleven other agencies and yet this writer was able to find a copy after the Navy failed? It is deeply troubling to consider that this might constitute an attempt to conceal the most damning document.

E. Questions were asked of the Assistant Secretary of the Navy (Installations and Environment) Assistant Navy Secretary B.J. Penn, who replied with three deceptive sentences that have reappeared verbatim in several documents:

“In 2003, the Navy complied with NEPA for transient aircraft operations at NAS Key West by completing an Environmental Assessment (EA) for Fleet Support and Infrastructure Improvements. That EA, and its incorporated references, analyzed impacts to the human environment, including noise and flight paths resulting from all transient aircraft operations, including the F/A-18E/F. As a result, of that analysis, the Navy reached a Finding of No Significant Impact, which addressed off-base noise exposure from aircraft operating at NAS Key West.”

As has been shown, the Navy has not complied with NEPA if for no other reasons than none of the agencies that should have commented on the impacts were made aware that the Super Hornet was to be evaluated, and the FONSI does not mention the aircraft. The term “transient aircraft” is curious because it seems to imply that because the majority of the airplanes that fly at NAS Key West are not based there, they somehow make less noise when flying there. As stated earlier, the Environmental Assessment itself states that the Navy expected the Super Hornet to fly up to 25% more operations than the Tomcats at NAS Key West and the location of an airplane’s home parking spot is irrelevant. The statement “…and its incorporated references” is wrong if for no other reason than “references” should be singular rather than plural. There is one lonely reference in the Appendix of the EA that addresses Super Hornet, a Wyle Laboratories study that was published in April 2003—the same publication date as the Environmental Assessment itself!

Since publication of this reference was coincident with the EA, it could not have been scrutinized by agencies prior to the publication of the EA itself.

At the very least, the Navy has failed to properly evaluate the potential impacts of the Super Hornet at NAS Key West. At the worst, there is a widespread conspiracy.

I will gladly provide documentation of these claims, and am grateful for your review of the facts.

Sincerely,

John G. Hammerstrom
Commander, U.S. Navy Retired

JH