Snookered

How small farmers and big-city lawyers dug up a way to hoist Navy brass with their own petard.
By Edward Martin

Kiran Mehta casts about, scanning the folks filling rows of brown plastic seats and squeezing in folding chairs along the walls. Outside the Washington County Agricultural Center, pickup trucks are still easing into parking spaces on Plymouth’s Water Street. More than 100 people, many of them men with weathered faces wearing overalls or khaki work pants, will pack this place tonight. With their starched white shirts, dark suits and ties, Mehta and his companions stand out like neon in a church.

Bill Sexton, a cotton farmer who is chairman of the county commissioners, sits at a table up front. In the crowd is Doris Morris, wife of a commercial fisherman and president of her church circle. Ronnie Askew farms 600 acres with his 80-year-old mother. Gerda Rhodes, the local livestock extension agent, lives with her family in her homeplace, built in 1927 near the Washington-Beaufort county line.

Forty years ago, just down the road, Sexton’s dad told his own father he would convert swamp to cropland. He got a one-word reply: “Crazy.” Sexton wonders how his granddaddy would describe tonight’s meeting. Mehta, same age as Sexton but Bombay-born and Harvard-educated, is wondering, too. A Biblical passage comes to mind. Nathanael, from the city of Cana, scoffed when told a man from a nearby village claimed to be the Messiah: What good could come out of Nazareth? Mehta laughs to himself. “What good could come out of Charlotte?”

On this November night nearly two years ago, working people of two of the state’s poorest counties meet three big-city lawyers from Kennedy Covington Lobdell & Hickman LLP, a Charlotte-based firm with more than 165 lawyers in five offices in the Carolinas. Clients include Bank of America, Wachovia and Microsoft. Business, the bigger the better, is its bread and butter. Mehta, Raymond Owens Jr. and Christopher Lam get up to make their pitch.

We propose to represent Washington and adjoining Beaufort County to block the Navy from taking your farms and businesses for a jet-fighter landing field. We’ll represent the counties — Washington alone would lose 22,000 taxable acres, worth $300,000, 3% of its annual budget — but everybody will benefit. We’ll stick with you, to the U.S. Supreme Court if necessary. And we’ll do this pro bono. “Suddenly we had fancy lawyers, dressed to the nines, articulate and well-educated, offering to work for free,” Washington County Manager David Peoples recalls. “A lot of people were asking, ‘Are we about to get snookered?’”

They had been warned. A rear admiral, reaching into bottomless pockets, had set the rules of engagement. “My lawyers are already working on this issue,” Atlantic Fleet commander Robert Natter had told a news conference that summer. “Those who want to throw money at lawyers to oppose us had better start throwing more money.”

Kennedy Covington lawyers, allied with a team from the nonprofit Charlottesville, Va.-based Southern Environmental Law Center, have matched the Navy salvo for salvo in a battle fought with words, wits and reams of documents, including an epic 200,000-page paper chase. The case resides in the 4th U.S. Circuit Court of Appeals in Richmond, where a three-judge panel is deciding whether to bar the Navy permanently from buying land for the airfield.

So far, they have prevailed in a showdown that could be the biggest pro bono case in state history. The law firm has invested more than 3,000 hours of legal work — estimated value, in excess of $1 million. And somebody did get “snookered.” Among its meanings: deceive or cheat, which is what residents feared the lawyers might do — and were certain the Navy was doing — to them. Another is, to thwart.

Held in sway is more than the 30,000 acres the Navy covets. It’s also a way of life. It can be glimpsed south of Plymouth along the straight, two-lane stretch of Highways 45 and 99. Thunderheads swell on the horizon, and the thermometer stands at 92. Gerald Allen, 62, walks in from his soybean fields after checking on his help, a full-time hand and a part-timer. He farms 2,300 acres, much of which he and his uncle began clearing in 1967 when he returned from the Air Force.

“I graduated from high school, served in the military, then came home and went to work — the American dream.” This year, he says, the tassels of his corn nearly reach the sky. “It was dry until about the first of June, then we started getting rain, just in time for it to pollinate.” The black dirt he tills is special. Some farms here — the Navy would take 75 — date to Colonial times, but many were wrestled from mire and mud by the men and women who live on them. In the 1950s and ’60s, a lumber company clear-cut thousands of acres of cypress swamp, leaving a jumble of stumps, bushes and water moccasins. Then it went out of business.

Neighbors formed a drainage district, a cooperative matrix of ditches and canals to drain the land and, when farmers reversed the flow, irrigate it. “We did it,” Allen says, “the hard way” — grubbing out roots, stumps and debris by hand. Five miles east, the U.S. Fish and Wildlife Service in 1963 established Pungo National Wildlife Refuge, a 12,000-acre sanctuary where migrating swans, ducks and other waterfowl winter. In 1990, it was merged with an adjoining refuge to form the 110,000-acre Pocosin Lakes National Wildlife Refuge. “We’ve got bear, red wolves, an abundance of deer, cougar — all sorts of wildlife,” Peoples says.

Three years ago, the Navy released an environmental-impact study listing this part of Washington and Beaufort counties as one of two preferred sites for a $186 million runway and buffer zone. The airstrip would be used to practice about 30,000 simulated aircraft-carrier landings a year — most at night. Pilots would land for a split second, then roar skyward, every 15 minutes or less, hour after hour. The planes would be F/A-18 Super Hornets, the Navy’s latest fighter, louder than the now-retired Concorde jetliner, which is banned from most airports around the world because of its roar.

Neighbors would get the noise but not the economic benefit most military bases bring. “We’re probably talking about a dozen or two low-skilled jobs such as mowing grass and maintenance,” Peoples says. The economic impact of Oceana naval air station on Virginia Beach, where most of the 100-plus planes would still be based, is estimated at $2 billion a year. About two dozen fighters, the Navy says, might be moved to the Marine Corps air base at Cherry Point, about 60 miles southeast of Plymouth.

A Navy representative soon knocked on Allen’s door. “He offered to buy my land, then rent it back to me. But by then they’d told so many lies, I didn’t know what they were going to do.” The Navy was offering $1,800 to about $2,000 an acre. Farmers say it would cost at least $3,000 an acre to replace — maybe much more if there were sudden demand for 30,000 acres. Allen contacted a lawyer. “He wanted $185 an hour and a percentage of everything over $2,000. Finally, he said, ‘I’d love to represent you, but the way it works, we’d take just about everything over $2,000 that we got for you.’”

Not only landowners despaired. Washington County’s per capita income in 2003 was nearly $7,000 less than the state average of $27,785. In addition to lost county revenue — federal property is not taxed — the region could lose one of its few nonfarm sources of income: ecotourism. “From mid-September until mid-March, we get bird- watchers and environmentalists,” Peoples says. “These people want quiet, serenity and beauty. We’ve been trying to build ecotourism for years.” About 34,000 visited the wildlife refuge last year.

The two counties decided to fight. Their timing was good. Owens, shopping for a pro bono case, had approached an official at the Southern Environmental Law Center’s Carolinas office. He pointed Owens east. Washington and Beaufort counties were seeking bids for legal services. “We had a group that was going to charge us $200 an hour,” Sexton says, “and we were trying to figure where we were going to get the money to pay them.”

Short of money, residents had plenty of passion. They had set up a tent city to protest the outlying landing field — “No OLF” signs sprouted in yards across the region — and buttonholed state officials, demanding help. On the night of the big meeting, however, they weren’t sure the Charlotte lawyers shared that passion. “We didn’t know if their hearts were really in it,” Morris says. The trio sensed their misgivings. Dress wasn’t the only thing that seemed out of place here.

Kennedy Covington does environmental work, but usually for developers. In 2002, the firm represented Crescent Resources, Duke Energy’s real-estate arm, in a fight over developing the shoreline of Lake James, one of western North Carolina’s most pristine reservoirs. That’s how the firm hooked up with the Southern Environmental Law Center. “We were on opposite sides, but it ended up in a great settlement for everybody,” says Trip Van Noppen, director of its Carolinas office. “We could vigorously oppose each other but still have a courteous and friendly relationship.”

Nice guys maybe, but even their résumés raised eyebrows. Mehta, who is now 48, clerked for a federal judge in Maryland after finishing Harvard Law. He chairs the firm’s real-estate, construction, land-use and environmental litigation practice. A Wake Forest native with undergraduate and law degrees from Carolina, Owens, 52, chairs the commercial-litigation practice. Among his specialties: shareholder and partnership disputes. Lam, 29, grew up in golf country near Southern Pines. Duke undergrad, UNC Law, he’s in the commercial-litigation group.

But all three had ties to Eastern North Carolina. The audience seemed to soften as Mehta explained that his wife was from Ahoskie, a town in Hertford, one county north of Washington. On his father’s side, Owens’ family was from Tyrrell County, which joins Washington to the east. Lam’s Moore County is a contradiction in itself, golf courses and horse farms tucked among deep pockets of poverty. By the end of the evening, the suspicion was fading. And how the lawyers viewed the case was changing.

As he walked out into the damp evening along the Roanoke River, Lam suddenly realized what they had taken on. “It was more than birds and airplanes. It was people’s homes and livelihoods.”

In their offices and around a heavily burled conference table 47 floors above downtown Charlotte, the three lawyers set out to map their attack. Nobody underestimated how difficult it might be. Not only were they pitted against an opponent willing to paint opposition as unpatriotic, akin to aiding and abetting terrorists, they were wading into a political quagmire.

“It’s a high-profile case and devilishly complicated,” says David Blackwell, publisher of North Carolina Lawyers Weekly, a Raleigh trade paper. “The population base is so sparse in that area. That’s one reason the Navy’s trying to condemn the property.” Fewer than 14,000 people live in Washington County. Beaufort County is bigger, but it’s population is still less than 47,000. That’s not a lot of votes.

Kennedy Covington’s team and its counterpart at the law center — Van Noppen and lead attorney Derb Carter — didn’t doubt residents had sussed out the Navy’s motive. “All they’re doing is getting the noise out of Virginia Beach,” says Allen, one of the farmers. “The squeaky wheel gets the grease, if you raise enough Cain and have enough political pull.”

They believe John Warner, the Virginia Republican who chairs the Senate Armed Services Committee, and others succumbed to pressure by residents and developers complaining about the noise at Oceana and nearby Fentress Airfield, present site of the practice landings. Some think most North Carolina leaders, including Gov. Mike Easley, abandoned them, the politicians fearful the federal commission studying base closings might view any protest as anti-military sentiment.

Others see a more convoluted scenario. The Navy initially offered to lease much of the land, then last fall began demanding owners sell it outright. When the base-closings commission unexpectedly questioned Oceana’s future this summer, it fueled rumors that the Navy had all along intended to move the air station to North Carolina. Oceana covers only 8,000 acres, barely a quarter the size of the proposed OLF site.

Ted Brown, civilian spokesman for the Atlantic Fleet in Norfolk, wouldn’t comment on whether the Navy plans to move the air station — a new, noisier fighter is due to join the Navy arsenal in 2010 — but he says it is re-examining five other sites in Eastern North Carolina, including some near existing bases in Carteret and Craven counties, for the practice field. However, he says, the Navy will carry on its court fight for the Washington/Beaufort site.

Judges don’t rule on speculation about political mot- ives. So when the lawyers file suit in January 2004 in Eastern District U.S. Court in Raleigh, they go straight for the throat: The Navy didn’t follow orders, violating the National Environmental Policy Act, which requires objective environmental-impact studies. “The Navy,” Mehta says, “simply didn’t seem to consider its own studies.”

The lawyers unearth a consultant’s report warning that a crash from striking a swan, goose or other bird is nearly certain, the only question “how severe it will be when it occurs.” In 1996, a military jet hit a bird over Roper, crashing after the pilot ejected. Jeffery Short, a now-retired Air Force officer who drew up BASH — a military program for preventing bird-aircraft strike hazards — had concluded that, in 25 years of studying them, “I can’t recall a worse place to situate an airfield for jet training.”

While others speculate that the Navy is ignoring its own studies due to political pressure, the lawyers search for evidence to prove it. Judge Terrence Boyle gives them the chance. He issues a temporary injunction in April 2004, halting activity on the airfield. The Navy appeals, triggering more legal jockeying. Two months later, Boyle orders the Navy to turn over its records pertaining to the OLF back to 2000. So begins the legal process called discovery.

The Navy’s response is to try to bury the opposition in paper. In this case it’s some 200,000 pages of documents that Navy lawyers have dumped into DVDs. Thousands of passages are redacted — blacked out — ostensibly for security and privacy reasons. There is no index. “They resisted turning the stuff over, and then when the judge made them, they did it by the wheelbarrow,” Van Noppen re-calls. “It was in no sequence, no rhyme or reasons or things you could piece together. It was just one enormous jumble.”

Lam and Owens were in court when the Navy responded. “They said, ‘Look, we’ve got six people working on this full time, and we’re going to produce the largest administrative record ever,” Lam recalls. Owens says he just grinned. “We knew that was coming. We knew we had our firm and the law center, but we knew we had to have more.”

Later that month, around midnight in her Chapel Hill apartment, UNC law student Amelia Burnet stows her books and slips a disk into her laptop computer. She’s now 27, a native of mountainous Buncombe County who wants to practice environmental law “to bring about change or stewardship in those areas.” OLF lawyers — including some from the environmental law center, where she had interned — had visited the law school and, over sandwiches and potato chips, outlined a plan. Signing up 15 to 20 volunteers, they handed out scores of disks, each containing about 320 Navy documents. Don’t make final judgments, they told them. Just flag all redacted passages and anything that strikes you as suspicious. Let us decide.

Hour after hour, Burnet scrolls page after page. An odd name appears: Robusto, John A. Robusto. It catches her eye. He has sent an e-mail mentioning “reverse engineering.” She routinely flags it — just in case — and continues. In other apartments, other students are slogging through similar documents. Another Navy expert mentions having “an uneasy feeling about our criteria and process.” Yet another officer grouses that stationing some of the jets at Oceana and some at Cherry Point is a silly political maneuver, negotiated between Warner and North Carolina’s Sen. Elizabeth Dole, that offers “zero operational benefit.” Despite Navy assurances in court that jets would not have serious bird problems, another expert suggests that swans or other waterfowl would be dealt with by “lethal and nonlethal” means. Students flag the passages and scroll on.

A few days later, sitting at the dining table of his Charlotte home, Lam pops one of the CDs into his laptop computer. Text unfolds. Dates fall in line: Alan Zusman, a member of the Navy’s team compiling the environmental-impact statement, complains to a colleague: “Don’t know about you but I have a very uneasy feeling about our criteria and process.” Robusto, another team member, complains that Natter, the cocky fleet commander, has agreed with politicians to move the landing strip. “Now we have to reverse engineer the whole process to justify the outcome.”

Lam bolts upright and yells, then grabs and hugs his wife. “We danced around the downstairs a time or two.” Later, in their Charlotte offices, he, Mehta and Owens begin piecing together a timeline showing the Navy ignored National Environmental Policy Act requirements for impact studies. In February, Boyle issues a permanent injunction barring the Navy from proceeding with the OLF.

“Maybe without the e-mails, we could have won,” Owens says. “But what they did — the epiphany — was to confirm what everybody intuitively thought: The process was politically driven.”

The fight is far from over. Any day, the 4th U.S. Circuit Court of Appeals in Richmond, Va., could reverse Boyle’s ruling. Even if not, Mehta says, the Navy could respond with a new round of environmental-impact studies that the courts might accept. The struggle might start all over again. Appeals by either side could carry the case to the Supreme Court.

Meanwhile, the law firm is getting something for the nothing it’s being paid: The publicity has been priceless. In June, Kennedy Covington received the North Carolina Bar Association’s 2005 Pro Bono Services Award for large firms. The Mecklenburg County Bar named Lam its first Young Lawyer of the Year.

Then there are the people Down East. They have sent the lawyers hand-knitted afghans and letters of gratitude, invited them to pig pickings and, after Jerry Beasley rolled back some of the combines and tractors in his big farm shop down near the Beaufort County line, a seafood feast.

This time, the lawyers wore jeans and sneakers. “They even brought their families,” says Sexton, the cotton farmer. “They’re just good ol’ boys around here now.”