NITED STATES DISTRICT COURT

FOR 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,
v.
DEBORAH LEE JONES, Secretary of the
Air Force,
Defendant.

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Civil Action No. 5:14-cv-132

STIPULATED MOTION BY THE CITY OF SOUTH BURLINGTON

FOR 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
In anticipation of the Court potentially granting this motion, South Burlington is simultaneously
filing South Burlingtons Amicus Curiae Memorandum in Limited Support of Plaintiffs Motion for
Summary Judgment.
1

Burlington hereby represents that counsel for all of the parties have assented to
South Burlingtons 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 Burlingtons 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 Forces 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 5543655456. Further, the South Burlington Planning Commission submitted a June 19,
Defendants assent is conditioned upon the following: (1) The current briefing/oral argument
schedule does not change (i.e., the merits hearing remains scheduled for July 5, 2016); (2) South
Burlingtons amicus brief does not exceed 10 pages; and (3) South Burlingtons amicus brief is filed
by 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 all
parties is a dispositive means of achieving amicus curiae status in federal appellate courts. See
F.R.A.P. Rule 29.
2

2012 letter stating concern as to the lack of information how F-35A noise impacts
would affect goals set forth in the Citys 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
Burlingtons 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. Klesch

John H. Klesch, Esq.
Stitzel, Page and Fletcher, P.C.
171 Battery Street
P.O. Box 1507
Burlington, Vermont 05402-1507
jklesch@firmspf.com

CERTIFICATE OF SERVICE
I, John H. Klesch, hereby certify that on June 28, 2016, I electronically filed
the foregoing STIPULATED MOTION BY THE CITY OF SOUTH BURLINGTON
FOR LEAVE TO PARTICIPATE IN BRIEFING AS AMICUS CURIAE with the
Clerk of the Court using the CM/ECF system, where it is available for viewing and
downloading.
BY:
K:\WPDOC\LIT\SON16-028 F-35 stip motn.628.docx

/s/ John H. Klesch

John H. Klesch, Esq.