1

NITED STATES DISTRICT COURTFOR THE

DISTRICT OF VERMONT

IGOR ZBITNOFF, EILEEN ANDREOLI, )JEFFREY FROST, RICHARD JOSEPH, )JULIET BETH BUCK, RAY GONDA, STOP )THE F-35 COALITION and THE CITY OF )WINOOSKI, )

Plaintiffs, )) Civil Action No. 5:14-cv-132

v. ))

DEBORAH LEE JONES, Secretary of the )Air Force, )

Defendant. )

STIPULATED MOTION BY THE CITY OF SOUTH BURLINGTONFOR LEAVE TO PARTICIPATE IN BRIEFING AS AMICUS CURIAE

The City of South Burlington (“City” or “South Burlington”) hereby moves for

leave to participate in the briefing in the above-referenced action as amicus curiae.1

More particularly, South Burlington requests leave to file a legal memorandum in

support of Plaintiffs’ requests for declaratory judgment that: (I) The Final

Environmental Impact Statement for United States Air Force F-35A Operational

Basing issued September 2013 (“FEIS”) did not provide adequate information as to

noise impacts on South Burlington and neighboring communities (addressed in

Count I of Plaintiffs’ Second Amended Complaint dated April 29, 2015); and (II) The

FEIS did not provide adequate information as to potential health and safety

impacts which could result from noise or an F35-A crash within or near the City of

South Burlington (addressed in Plaintiffs’ Count VI and IX). Counsel for South

1 In anticipation of the Court potentially granting this motion, South Burlington is simultaneouslyfiling “South Burlington’s Amicus Curiae Memorandum in Limited Support of Plaintiffs’ Motion forSummary Judgment.”

2

Burlington hereby represents that counsel for all of the parties have assented to

South Burlington’s participation as an amicus.2

Memorandum of Law

This Court has broad discretion in deciding whether to grant South

Burlington leave to file an amicus memorandum. See Concerned Area Residents for

the Environment v. Southview Farm, 834 F. Supp. 1410, 1413 (W.D. N.Y. 1993).

Based on the facts and circumstances, the Court should exercise its discretion to

grant South Burlington’s motion for leave to participate as amicus curiae.

As the Court is well aware, the United States Air Force has decided to

beddown the F-35A Lightning II (“F-35A”) with the 158th Fighter Wing of the

Vermont Air National Guard, stationed at Burlington Air Guard Station (“AGS”) at

Burlington International Airport (“BTV”). See, e.g., Record of Decision for the First

Air National Guard F-35A Operational Base, December 2, 2013. South Burlington

participated in the Air Force’s pre-decisional administrative process. For example,

its City Council submitted a June 11, 2012 letter raising concerns that the United

States Air Force F-35A Draft Operational Basing Environmental Impact Statement

dated March 2012 did not adequately address issues including noise, health, and

safety impacts potentially associated with the F-35A beddown. See AR 55436-

55456. Further, the South Burlington Planning Commission submitted a June 19,

2 Defendant’s assent is conditioned upon the following: (1) The current briefing/oral argumentschedule does not change (i.e., the merits hearing remains scheduled for July 5, 2016); (2) SouthBurlington’s amicus brief does not exceed 10 pages; and (3) South Burlington’s amicus brief is filedby June 28, 2016 so that Defendant would have 3 business days to respond in writing if it so chooses.Though there is no parallel rule applicable to matters pending in District Court, stipulation of allparties is a dispositive means of achieving amicus curiae status in federal appellate courts. SeeF.R.A.P. Rule 29.

3

2012 letter stating concern as to the lack of information how F-35A noise impacts

would affect goals set forth in the City’s Comprehensive Plan regarding

preservation of housing and neighborhoods. See AR 8396-98.

BTV, including the entire AGS, is located entirely within the City of South

Burlington. See FEIS § BR1.0 at BR4-1. A significant number of South

Burlington’s residents, institutions, and governmental services will be impacted by

the F-35A beddown decision. In the amicus curiae memorandum, South Burlington

will brief the Court on those impacts which have not been sufficiently addressed in

the FEIS. As South Burlington is filing said memorandum simultaneously with

this motion seeking amicus curiae status, the City incorporates the content of that

memorandum here in support of this motion.

Conclusion

For the foregoing reasons and in light of stipulation of all the parties, South

Burlington respectfully requests the Court grant the City leave to file an amicus

curiae memorandum as herein described.

Dated at Burlington, Vermont on June 28, 2016.

CITY OF SOUTH BURLINGTON

BY: /s/ John H. KleschJohn H. Klesch, Esq.Stitzel, Page and Fletcher, P.C.171 Battery StreetP.O. Box 1507Burlington, Vermont 05402-1507jklesch@firmspf.com

4

CERTIFICATE OF SERVICE

I, John H. Klesch, hereby certify that on June 28, 2016, I electronically filedthe foregoing STIPULATED MOTION BY THE CITY OF SOUTH BURLINGTON

FOR LEAVE TO PARTICIPATE IN BRIEFING AS AMICUS CURIAE with theClerk of the Court using the CM/ECF system, where it is available for viewing anddownloading.

BY: /s/ John H. KleschJohn H. Klesch, Esq.

K:\WPDOC\LIT\SON16-028 F-35 stip motn.628.docx