Richmond, Va. -- Navy and opposition attorneys got a serious workout Wednesday before a 4th U.S. Circuit Court of Appeals three-judge panel.

Both sides got tough questions from all three judges, who frequently interrupted to plow as much ground as quickly as possible. The 40 minutes allotted for the hearing stretched to 90 minutes as the panel -- clearly curious about some issues, agitated over others -- expanded the legal boundaries of the give-and-take.

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.

"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.

"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. That evidence, opposing attorneys contend, supports just the opposite of Navy contentions the site is safe for birds and aircraft.

That argument was among many that triggered what became a grilling from the panel.

"Why was this located so close to a wildlife refuge?" asked Judge J. Harvie Wilkinson III, adding such areas are designated a refuge "for a reason. When you locate a landing strip so close to a wildlife refuge, you know that´s going to be a sensitive matter. Why there?"

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.

Wilkinson asked about the Navy´s urgency to proceed.

"If you get an SEIS," he reflected, "you´re not expecting construction to proceed until January 2007. What´s the problem with doing these preliminary things (later). ... Who knows, you might have changed your mind."

Avila argued the Navy has "a finite number of resources" and conducting an "SEIS takes away from those resources."

"I though you only began doing (the SEIS) a month ago," interjected Judge Karen J. Williams.

Wilkinson asked questions regarding a Tuesday decision to add Virginia Naval Air Station Oceana to a base-closure list and what that portends for OLF planning.

"Site C was picked in part in the anticipation Oceana would remain open," said Wilkinson. "Does that have any importance?"

"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.

"We were surprised, as many were," said Carter, regarding the reversal.

The Navy continues to maintain there are no wetlands within the 33,000-acre site, despite the existence of a 100-acre tract of restored wetlands adjacent to the proposed runway, a restoration sanctioned under a state-federal program. The land is now owned by the Navy, which is required by law to either maintain the wetlands tract in a natural, undisturbed state or mitigate damage or destruction by creating an equal or larger wetlands area elsewhere.

No mention was made of that tract in court. Wilkinson, however, was clearly surprised by Carter´s statement.

"There are wetlands on the 30,000-acre site?" he asked.

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.

Carter also mentioned endangered red wolf packs that now make Washington County part of their expanding Eastern North Carolina range.

The panel, clearly, had done its legal homework and had delved into the evolution, twists and turns of the OLF saga.

Williams asked why the Open Grounds Farm site in Carteret County had been ruled out.

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.

Williams cited statements from retired Air Force bird-aircraft strike-hazard expert Ron Merritt, statements that fly in the face of Navy contentions BASH risks can be managed.

"How do you respond to (those) criticisms?" asked Williams.

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.

Williams and Judge William B. Traxler Jr. took issue with the Navy´s record of limited site visits to study the bird problem before making a final decision.

"It just concerns me because it is such a danger to the pilots," said Williams.

"We wouldn´t build something we thought was not safe," said Avila.

"To make a serious evaluation," said Traxler, "you have to go out there when there are a lot of birds. It wasn´t done until February-March 2003" when most birds had left. "That reflects a lack of seriousness."

"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."

"But Fish and Wildlife Service (officials) are criticizing your analysis," interjected Williams.

"I´m not too sure ... what part of the study they were referring to," responded Avila. "I don´t think they expressed concerns about a particular part of our analysis."

OLF team attorney Kiran Mehta took his grilling from the panel on procedural points, while at the same time taking the Navy to task for limiting the scope of supplemental studies. He argued the five-site review the Navy is conducting is not adequate.

"Carteret County is not on that list," he said. "It should be."

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.

Countering Navy contentions Washington County is the least of the evils, Mehta said, "If this particular site (presents) the least problem, (the Navy) should be looking in a different part of the country."

Mehta argued the Navy has glossed over issues: "They say, ´Well, we´ll just do that later.´"

And that contradicts NEPA, he said, arguing the act requires an objective and rigorous approach: "There´s no rigor here. (The Navy) didn´t even read the studies they cited."

"They looked -- they just didn´t adequately look?" queried Williams.

The panel noted the issues -- and the case -- are complex and asked attorneys to offer the court some direction.
Mehta drew the scope of the broad-ranging discussion back to procedure.

"Your role in that is to be sure the district court did not abuse (its) discretion," he said, regarding issuing the injunction that halted the Navy.

"It makes me nervous to have this drag on and on and on," observed Wilkinson, voicing concerns for adequate pilot training.

The panel, following tradition, circulated among the attorneys, thanking them for their work.

For a look at community reaction to Wednesday´s hearing, see Friday´s Daily News