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Boardman writes: "The question comes down to whether Democratic loyalty to Pentagon extravagance is some kind of justification for Burlington to impose damage on its neighbors against their will. It should be unconscionable."

The F-35. (photo: SCANPIX)
The F-35. (photo: SCANPIX)

Vermont Progressives Aiming to Shoot Down F-35 Stealth Bomber

By William Boardman, Reader Supported News

21 October 13


Vermont Democrats remain solid military boondoggle boosters.

he latest high-ranking Vermont Democrat to push for prime military pork in her state is Burlington city attorney Eileen Blackwood, who released a slippery legal memo October 17th that is as cleverly political as it is narrowly legal, leading to widespread, obtuse media coverage along the lines of Vermont Public Radio's simply false headline: "City Report: Burlington Can't Block F-35."

Blackwood's "preliminary analysis" was a memo "responding to some of the legal concerns raised" in the course of three years' "public discussion of the Air Force's consideration of basing the F-35 jets at the Burlington International Airport (BIA)." Blackwood, a Democrat, said her legal memo was requested by Burlington mayor Miro Weinberger (the Democrat who appointed her) and "several City Councilors," unnamed.

Blackwood's 14-page legal memo comes to no such sweeping conclusion, as reported by public radio, WPTZ-TV, the Burlington Free Press, VTDIGGER, and other Vermont media. News reports made the memo sound comprehensive and conclusive when it is very limited and inconclusive. Blackwood has delivered the best case she can for the views of her boss, Mayor Weinberger, just as other attorneys in similar but more serious circumstances offered legal support to presidents who wanted to torture people or assassinate them with drones.

Blackwood argues that the city's position is legal. She doesn't claim that it's right. Her page of "conclusions" is hedged with conditional language - things are "likely," "would likely mean," "would not seem to allow," "would likely be withdrawn," "appears," "seems likely," or "does not appear to apply," a style all very lawyerly. The memo, as she says, "is not intended to serve as a final statement of the City's legal position on any specific issue."

In her last sentence, Blackwood acknowledges the essentially political (not legal) nature of the F-35 dispute, saying, "Voicing opposition would be a political statement that is protected speech" under the Constitution's first amendment. But that's not the whole sentence. The rest of the sentence gives her game away. In what seems a clear move to head off any voicing of opposition, she concludes her memo by warning that protected speech "would carry with it a different set of risks and opportunities than those explored here." In other words: council members, be afraid, be timid.

Blackwood memo designed to influence council vote on October 28th

The Vermont Progressive Party's four members on the Burlington City Council (which has 14 members in all) have been trying since early October to get the council to vote on measures aimed at delaying or blocking the Air Force from basing the controversial F-35 Joint Strike Fighter at the city-owned airport. These Progressives are trying to protect the neighboring communities most at risk from this military escalation in the middle of Vermont's most densely populated area. The smaller towns of South Burlington and Winooski would take the brunt of personal and economic damage inflicted by the F-35, with no way to exercise any direct influence over their own destiny. Both towns have long been excluded from any representation on the five-member Burlington Airport Commission. By contrast, Mayor Weinberger, as a former commissioner who now appoints commissioners in his role as mayor, is loaded with potential conflicts of interest.

Everyone admits that basing 18 to 24 F-35 stealth bombers at the Burlington Airport will do significant harm to South Burlington, where it's located, and Winooski, which sits directly in the main flight path. Most of the damage assessment comes from the Air Force itself in its environmental impact statement. Opponents of the F-35 have raised additional concerns not addressed by the Air Force.

Proponents of the F-35, including all of the state's top Democratic officials (there are few top Republican officials in Vermont), support the basing plan despite the damage it will cause, usually saying that they believe that the military spending is important to the Vermont economy. Proponents of the F-35 typically say the cost is worth it, without addressing the fairness of the cost largely being borne by others, many of whom are lower-income and/or foreign born (including a significant refugee population).

The city council first scheduled a vote on at least two Progressive resolutions on October 7th, with a public hearing to precede the vote. Four days before the event, the city council president cancelled it because Blackwood had informed her that the council was not insured against liability for any actions they might take regarding the airport they own. According to Blackwood, the city did not have any "public officials liability insurance for the airport that it routinely carries for other city business."

City moves forward, insured against liability attorney implies is chimerical

The city has since acquired the liability insurance, for up to $5 million in damages, as recommended by Blackwood. The council has re-scheduled the public hearing and F-35 vote for October 28th. Blackwood's legal memo argues at length the ways the city council should be legally immune from liability suits of various sorts. The memo does not say why the city council therefore needed liability insurance before even voting on the F-35 and its assortment of potential harms to public health, safety, and property.

There are at least two resolutions, probably more, that will be presented at the October 28 council meeting. One resolution says the city will prevent F-35 basing at Burlington Airport at any time. Another says the city will prevent basing the F-35 at Burlington Airport during the first basing sequence (beginning in 2020 at the earliest, according to the Air Force, which once said it might happen as early as 2015). Another resolution might be only a sense-of-the-council statement, without binding force of law (which Mayor Weinberger has said he expects).

Blackwood's legal memo acknowledges quietly that a municipality that owns an airport has the legal authority to adopt health and safety regulations for that airport, including control of noise. But mostly she describes all the ways Burlington might be limited in its exercise of that right. Her political position is clear: that the city has the right to protect health and safety in a way that could bar the F-35 from the airport, but it shouldn't even consider exercising that right because, well, someone might sue or something.

In a brief, preliminary response to Blackwood, attorney James Dumont writes:

"Eileen Blackwood's memo accepts the most basic point we have been making for months - that unlike South Burlington, Burlington is the proprietor of the airport and therefore it has authority that South Burlington lacks. Federal noise standards preempt South Burlington's authority to regulate through zoning or other regulations. The caselaw we submitted and that Blackwood found all agrees that a city that owns an airport can set noise or other standards as proprietor, not regulator."

Does Vermont still know what it means to be a good neighbor?

Although Dumont leaves it implicit, the fundamental question is whether Burlington, unlikely to feel much negative impact from the F-35, has the integrity, conscience, neighborliness, or will to act to protect the health and safety of South Burlington. A corollary question is whether Burlington will face any consequences if the city fails to act, and South Burlington suffers the grievous harm the Air Force and others predict.

Dumont, who represents the Stop-the-F-35 Coalition, argues that Blackwood's memo is, in effect, mostly smoke and mirrors:

"None of the cases cited in the memo address the situation in Burlington. Uncited cases and scholarly articles explain that in the Burlington situation local action is acceptable if the purpose is within the traditional purposes of local government - protection of the public health of the local public - and if the effect is not to directly control military affairs. For example, there is the case of Arthur D. Little v City of Cambridge, decided by the highest court in Massachusetts. The City there adopted a regulation, like the proposed resolution here, which had the purpose of protecting local public health. The regulation banned all manufacture of chemical weapons in the city."

When the chemicals weapons maker, Arthur D. Little, sued to continue making chemical weapons in Cambridge, the Massachusetts Supreme Court forcefully rejected Little's claims and emphasized the city's right and duty to enact laws "to protect the public health and welfare.... municipal health and safety regulations, such as that at issue here, carry a heavy presumption of validity, and are only rarely preempted by Federal law."

According to Dumont, there will a resolution of this sort offered to the city council on October 28th: "It is explicitly a public health measure."

In addition to the four Progressives on the city council, there are one Republican, two Independents, and seven Democrats. The Democrats are all under pressure from their party leaders - including U.S. Senator Patrick Leahy, Rep. Peter Welch, and Gov. Peter Shumlin - to support the F-35, although none of these "leaders" has offered a coherent argument as to how this nuclear-capable bomber serves the common good.

Ultimately the question comes down to whether Democratic loyalty to Pentagon extravagance is some kind of justification for Burlington to impose damage on its neighbors against their will. It should be unconscionable.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


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Founder, Reader Supported News

+21 # Activista 2013-10-21 13:35
Nothing will change on the "Party" - aka Democrat level - we need to start the change from bellow - power of powerless - F-35 is such a waste - and danger to the World/humanity - carrying nuclear weapons.
+9 # Dennyc 2013-10-21 17:07
Anybody know or care to know where Sen. Sanders stands on this issue?
+3 # Activista 2013-10-21 17:19
F-35s Vermont leaders responded to several inquiries regarding the Air Force's proposed basing of new F-35 airplanes at Burlington International Airport, reported the Burlington Free Press. Sen. Sanders joined in a statement with other state leaders in support of the basing, which promises economic benefits for the region
+4 # WBoardman 2013-10-22 18:15
It's worth noting, I think, that while the Vermont
congressional delegation has expressed support
for the F-35 basing, NONE of them has, to my
knowledge, offered a cogent defense of the basing
while responding seriously to the serious concerns
of their constituents.

Leahy, with his familial conflicts of interest, has been
the most outspoken booster of having a fleet
of F-35s in the most populated area of a rural state.

Leahy has flatly refused to meet with ANY of the
concerned Vermonters.

Sanders and Welch have both appeared mealy-mouthed and
weak in their support of the F-35, while being equally unresponsive to their constituents.

Their responses seem designed to let them back off
if the heat on the F-35 gets too much.

Three excellent profiles in lack of courage.
+17 # curmudgeon 2013-10-21 17:31
Will greed defeat the health?

This question could well be asked nation-wide.

Rechanneling the cost of the F-35 program and its ongoing expense could sure fix a lot of infrastructure, creating a lot of jobs, or pay for Medicare expansion, or pay for education.....

abnd so on.

BUT thene the .1% would not make the astronomical profits...
+13 # Rita Walpole Ague 2013-10-21 18:30
This brings to mind what has happened, over and over again, in Colorado Springs, the super fusion center of the nations' now over seventy fusion centers, with its ongoing push to expand Ft. Carson, the Northern Command Center and so much more of its overwhelming MITC - military/indust rial/terrorism complex.

Of course we constantly hear (but never actually experience) how more jobs and income for all will be the result of such expansion. I've actually renamed the heavy duty lobbying Chamber of Commerce, and now call it the.....

+18 # NeilBlanchard 2013-10-21 19:05
The F35 cannot even fly in the rain.

What a total waste of taxpayer's money.

+21 # Old Uncle Dave 2013-10-21 19:10
That's the ticket, cut social security and give Lockheed a trillion dollars for a plane that will NOT make the nation any safer. Remember the F-111 and the B-2.
+18 # Vardoz 2013-10-21 19:50
We have friends who live in the line of fire and we will voice our strong opposition to this abuse that is sweeping our nation.
+6 # Walter J Smith 2013-10-21 21:04
RE: "According to Blackwood, the city did not have any "public officials liability insurance for the airport that it routinely carries for other city business."

Surely there is more than one "progressive" attorney in Vermont who can drive a legal headache big enough to launch one of the F-35's carriers with through that massive loophole in the City's liability insurance.

If they cannot be insured for liability, then what protects them when the Air Force begins its routine fuel spills, crashing & burning F-35 & other aircraft, and, indeed, the whole litany of ordinary legal challenges that airports everywhere face routinely?!

That is a monstrously helpful admission for the progressives. Are they still sleeping on it?

That is difficult to believe.
+3 # SkyKing 2013-10-21 21:35
Why Burlington International Airport? Other issues with the F-35 notwithstanding , aren't there any Air Force Bases left in New England that would be more suitable?
+3 # Thebigkate 2013-10-22 00:40
MONEY and GREED! That is what this is all about. Shame on the "progressives!" They definitely ARE NOT! Sigh.......
+7 # fredboy 2013-10-22 02:29
A problem is a challenge that creates opportunity. The opportunity here is to begin selling noise shields and ear protectors in South Burlington. Get ready for 24/7 engine noise so loud it muffles thunder. Isn't it amazing how no one has mentioned national security--just the almighty dollar? May wish to post a new greeting sign for South Burlington: Welcome To Noise Hell.
+2 # truthbug 2013-10-22 06:09
I think Boardman could've presented the issues here in a much clearer fashion. Instead, he complicates understanding of what's going on by first giving details and leaving it to the reader to parse out the story. I suggest in future articles that he first give us the story, then the details.
+2 # WBoardman 2013-10-22 15:56
Fair enough.

One of the problems with writing about a story over
a long period of time is that I get leery of repeating
information people might already have.

Here the "new" story was the city atty's sly memo, media misreporting of it, and Dumont's rebuttal.

For lots more background on the F-35-in-Vermont brouhaha,
search RSN for "boardman F-35" -- you'll find more
than you may want to read, all of it pulse-pounding exciting ;-)))
+5 # futhark 2013-10-22 06:36
The United States of America is economically addicted to militarism. Just try to advocate for the closure of a local military base, as happened in 1991. The whole community goes ballistic over the loss of jobs. Perhaps, just perhaps, some of those jobs could be recovered in truly sane and humane endeavors, such as infrastructure maintenance and upgrades, environmental protection, education, and elder care. Then Americans would enjoy true security!
+4 # Billy Bob 2013-10-22 07:04
The whole idea is to move military bases and propaganda into every corner of the country, so people will be too afraid to speak up against the military - EVER. Suddenly, "it's all about jobs".

It's an intimidation tactic and it's working according to plan

Since when do conservatives (this includes many Democratic politicians) think Big Government can "create jobs"? I thought that ran contrary to their core philosophy. Oh yeah! When the military is involved, the only core philosophy is authoritarian rule.
+2 # gclanton 2013-10-22 15:38
You might want to reconsider the headline
"Vermont Progressives Aiming to Shoot Down F-35 Stealth Bomber" in light of the report that a Colorado town is considering granting hunting licenses so people can shoot drones out of the sky.
+2 # Billy Bob 2013-10-23 07:11
Guns are useless against drones. The next wave of drones (already being tried out) will be the size of insects. How effective are drones against mosquitos? Eventually, drones will be ubiquitous, and virtually invisible (nano technology to the rescue of the police state). You will not be able to hide from them, or even keep them out of your bathroom.

Guns ain't gonna work.

The ONLY thing that will work is a federal law, BANNING their use, and enforcing that law.

That would take admitting the problem is a serious threat, and admitting that individuals are powerless to deal with it.

BOTH of those notions run contrary to the average American's psyche.

In other words, get used to them.
0 # Billy Bob 2013-10-23 07:12
I meant to say, how effective are GUNS against mosquitos.
+1 # WBoardman 2013-10-22 15:58
+1 # fredboy 2013-10-22 17:30
One question: Isn't this the same "air national guard" that was apparently knitting on 9/11--when FOUR jetliners were hijacked? They and their cohorts in every nearby state NEVER LAUNCHED AN INTERCEPTOR.

So is this a hobby or is this a true national defense essential? My bet is on hobby.
0 # WBoardman 2013-10-22 18:07
VTANG -- Vermont Air National Guard --
was indeed on the ground on 9/11,
just like almost everyone else.

They continue to promote themselves as the people
who protected America AFTER 9/11 by flying patrols over
NYC and the northeast for weeks or months....

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