Thursday, March 25, 2010

Fulton Wilcox's take on Navy's apparent NJ DOT faux pas

As noted yesterday, the Department of Navy may only have itself to blame for failing to meet its contractual May 1 deadline to provide Laurelwood Homes, LLC, the right-of-way to start constructing a costly, multimillion-dollar road to nowhere (i.e. Laurelwood housing inside NWS Earle), over which civilians with no background checks will have unimpeded access thru the base thru 2040. Here is the analysis offered to NOPE supporters by Business Analyst Fulton Wilcox; we welcome your feedback here:

"The Navy’s expressed “purpose and need” for providing unfettered civilian access to Laurelwood housing depends on a state road connection permit, but the Navy has refused to apply for the connection permit because of the Navy’s sovereign immunity. The present impasse prevents anyone from submitting a “complete” DOT request for a roadway connection, so obviously there is nothing for DOT to approve.

Given the significant legal issues involved, the matter has been escalated from the New Jersey Department of Transportation to the Attorney General’s office. New Jersey Deputy Attorney General Jennifer Fradel has asked the Navy to provide more specificity to the Navy’s assertion of sovereign immunity. Following such fact-finding and debate, there perhaps will be discovered some way to break the impasse, but at best the road connection permit will be extraordinarily expensive.

The Navy surprised us all, including perhaps itself, in creating this impasse. In the Laurelwood EIS, the Navy detailed its permit-dependent proposed actions, but nevertheless did not disclose that it would “no show” permitting itself because of the Navy’s sovereign immunity. Also, it did not describe the impact of being a “no show” permit applicant nor describe how it would mitigate the impact.

Further, in the Laurelwood lease agreement, especially the portions related to the Navy’s “purpose and need,” the Navy made commitments to obtain permits without mentioning nor providing for its assertion of Sovereign Immunity. For example, Supplementary Lease Agreement 43 states that “the Government, assisted by the lessee, will immediately begin the process to obtain all necessary permits…” but the Navy is invoking sovereign immunity rather than moving “to obtain all necessary permits.” No permit presumably means no road connection or a connection, which itself leaves many liability risks and accountabilities to be addressed, which in turn means no “unimpeded access” to Laurelwood.

The cross-jurisdictional surprises may continue. It may be that that sovereign immunity extends to other state permitting processes – e.g., environmental – and to many other aspects of the Laurelwood privatized environment. Sovereign immunity or other jurisdictional issues may come up in many other contexts, such as the Navy’s relationship to civilian tenants or visitors. For example, recently the Navy extracted itself from being a “named defendent” in a liability case involving a private trucker injured by a fall at NWS Earle – see

Although the Navy believes that renting to civilians is its low-cost option, in fact the costs of dealing with a thousand or more tenants in a very strange jurisdictional setting is likely to eat up the purported savings as well as divert scarce resources into struggling through avoidable disputes."

- Fulton

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