Your City Council or Selectboard has the power to ban the F-35 training at BTV

Vermont delegated authority to cities, towns, & villages to promote public health safety, & welfare, including authority to define what constitutes a public nuisance and take action for its removal

The cities of Burlington, South Burlington, and Winooski have the power to stop the F-35 training at Burlington International Airport. So do Vermont towns and villages, including Williston, Essex Junction, and Colchester.

Constitution, Federal law, and military regulations

It all starts with the US constitution. Deep in Article I are two powers expressly enumerated as powers of the states: “reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Art. 1, §8, cl. 16. (The “militia” is now called the state national guard).

Accordingly, Congress adopted a federal law stating that National Guard training “shall be conducted by the several states” and that “the discipline, including training, of the Air National Guard shall conform to that of the Air Force.”

The discipline in Department of Defense Directive 2311.01 and in Air Force Policy Directive 51-4 requires commanders to conduct military operations—and that includes military training operations in Vermont—according to five fundamental law-of-war principles designed to protect civilians in multiple different ways. One of those fundamental principles, called “distinction,” requires commanders to keep military forces and military operations separate and apart from populated areas.

Intermingling F-35 jets and civilians cannot be justified

Such required separation of F-35 military training operations from populated areas would, if enforced, protect civilians from the negative effects of the F-35 training.

115-decibel Noise

For Vermonters, the F-35 training in and over densely populated cities is horrendous for hundreds of families. As admitted by the US Air Force, taking off and landing hundreds of times a month with 115-decibel F-35 jets at BTV inherently targets thousands of adults and children in Burlington, South Burlington, Winooski, and Williston with ear-and-brain damaging noise. Also with stroke and heart disease, as described in studies cited by the AARP.

Making the airport a legitimate military target uses cities full of civilians as human shields for the F-35

At a time of proxy war with Russia in the Ukraine and escalating tension with China over Taiwan, compliance with and enforcement of the required separation of F-35 jets and populated areas is especially urgent. Even more because missile-armed Vermont F-35 jets just last month completed three months of “air policing” Russia’s borders in Eastern Europe. By training with the forward-deployable and nuclear-capable F-35 jets in a densely populated neighborhood in a Vermont city, commanders make the airport, the neighborhood, and the city into legitimate military targets for Russian and Chinese missiles.

Any continued escalation, or even a miscalculation during rising tensions, will not be good for thousands of Vermonters in the blast zone if Russian or Chinese missiles are launched toward the base of F-35 jets at Burlington International Airport.

The US Code specifically requires commanders to comply with and enforce the separation of military forces and populated areas. 10 USC 950t makes any person who uses civilians or civilian property “with the intent to shield a military objective [like the F-35] from attack,” subject to trial and punishment by a military commission.

A US law adopted in 2018, called the “Sanctioning the Use of Civilians as Defenseless Shields Act,” condemns human shielding.

Military regulations require both compliance and enforcement

Under Department of Defense Directive 2311.01, the Wing Commander, the Adjutant General, and Air Force commanders are all responsible, not just for complying with, but also for enforcing the law-of-war regulations that protect Vermont civilians. As stated by the 7th Circuit Court of Appeals:

The Department of Defense has procedures for reporting claims of abuse; these procedures require all reports to be investigated and require prosecution to follow substantiated reports. See Army Regulation 190-8 at §§ 1-5, 3-16, 6-9; DoD Directives 5100.77, 2311.01E. Failure by military personnel to follow these procedures is a court-martial offense. 10 U.S.C. § 892. (Vance v. Rumsfeld, 701 F. 3d 193 (2012)). [DoD Directive 2311.01 reissues 2311.01E, which reissues 5100.77].

A report of abuse was submitted by 657 Vermonters

657 Vermonters signed on to a “Complaint to the Inspector General of the Vermont National Guard” submitted on October 22, 2020. Although Air Force Instruction 90-301 requires investigation and decision to be completed within 150 days, now, almost 2 years later, the Inspector General has still not issued a decision. (An email received last month states that “it is still being actively worked through appropriate command channels”). However, commanders are not just holding up a final decision. Commanders are also conducting a self-investigation, which is another violation of Air Force Instruction 90-301. The delay prevents halting the abusive F-35 training in Vermont cities and exercise of the right to appeal to a higher level. The military’s system of self-regulation has broken down. Justice delayed is justice denied.

Fortunately for civilians, the State of Vermont has a separate express constitutional mandate and federal law obligating it to conduct Air National Guard training separate and apart from populated areas. Vermonters don’t have to rely on the military’s own iced self-investigation. In fact, the state is not allowed to rely on it. Under the constitutional provision and US law, the state has separate responsibility to ensure that the discipline prescribed by Congress is followed and enforced.

State law delegates authority to local governments

As is the case in many states, Vermont law delegates power to local governments to protect “the public health, safety, welfare, and convenience” of citizens regarding “the operation and use of vehicles of every kind” and to protect citizens from “public nuisance.” Here is what the Vermont law says:

For the purpose of promoting the public health, safety, welfare, and convenience, a town, city, or incorporated village shall have the following powers: . . . (4) To regulate the operation and use of vehicles of every kind. . . (14) To define what constitutes a public nuisance, and to provide procedures and take action for its abatement or removal as the public health, safety, or welfare may require. . . (15) To provide for penalties for violation of any ordinance or rule adopted under the authority of this section. (24 V.S.A. § 2291).

This means that local governments have the state-delegated power to adopt ordinances and zoning to protect public health, safety, welfare, and convenience. Including to protect their citizens from state national guard F-35 training operations in populated areas, so long as the ordinances are consistent with the discipline prescribed by Congress, with the federal law, and with the military’s own regulations. The ordinances can require removal of the F-35 training from populated areas as a nuisance because of its extreme noise and, separately, because it uses civilians as human shields for the F-35.

Such ordinances can be enforced with penalties by the local governments. Especially high penalties can be imposed for operating with F-35 jets in a location that abuses children or their educational attainment. The Air Force EIS states that 18% of Vermonters are children and that 6,663 Vermonters live in the extreme noise zone of the F-35. Which means that well over 1000 children are being exposed to this abuse. And that’s got to stop now.

Will the Vermont Air National Guard comply?

If local governments pass such ordinances, will the Vermont Air National Guard comply? We won’t know for sure until ordinances are adopted but evidence that the US Air Force takes local regulations seriously is found in the Air Force Environmental Impact Statement (EIS), which states that whether the “local community has adopted zoning or other land use controls” is a consideration in its beddown decision (Vol. I, p. 2-25). So if a local government hasn’t adopted such ordinances and zoning it’s asking for trouble. Passing the ordinances protecting civilians is the best way to find out.

Such ordinances also protect the men and women of the Guard

Adopting and enforcing ordinances that protect civilians from the state-sponsored of F-35 training in populated areas will do more than protect thousands of Vermonters living in cities, towns, and villages near the airport from being used as human shields for the F-35. It will also do more than protect children and adults from being hurt, injured, distressed, traumatized, and abused by repeated exposure to dangerous 115-decibel F-35 noise.

Adopting and enforcing such ordinances will also protect the dignity, honor, and integrity of the members of the Vermont Air National Guard: Members who are currently being wickedly abused by execrable Guard commanders, who knowingly violate the military’s most fundamental regulations, US law, and the US Constitution. Commanders who dishonor themselves and their units by targeting, hurting, injuring, and endangering Vermont civilians. Commanders who foist F-35 training on densely populated areas, in violation of distinction, without military necessity, and in violation of town meeting votes. Adopting and enforcing ordinances prohibiting F-35 training in populated areas is the best way to support the men and women in the Vermont Air National Guard

Federal preemption—not

Federal preemption was used to deny Vermont Act 250 jurisdiction regarding on-base development in preparation for the F-35 basing at BTV. And federal preemption was invoked regarding State National Guard members called up for federal service for training in Central America. The constitution indeed puts arming the militia (basing) and guard members called up for federal service under federal authority. But federal preemption is not available to revoke the constitution’s reservation to the states of authority of training the state National Guard within the state according to the discipline prescribed by Congress.

Regarding noise regulation, the FAA states: “FAA does not have the authority to regulate the operations of military aircraft.” In Westside Property Owners v. Schlesinger 597 F.2d 1214 (1979) the 9th Circuit Court of Appeals conducted a detailed review and affirmed the district court judgment that “FAA jurisdiction over military aircraft is limited to air traffic control and does not encompass regulation of military aircraft noise.”

This means that state and local governments are free to protect Vermonters from noise and human-shielding abuse by state national guard commanders training with F-35 jets in densely populated cities. Nor does the FAA or any other federal agency have authority to overrule the military’s own regulations that require distinction or the federal law and constitutional provision that make separation of F-35 jets and populated areas mandatory.

Not a hot-button issue

You are not against the military if you demand that commanders comply with and enforce the military’s own regulations. Civilian authorities must always do that.

The Founders were concerned that government officials would become corrupted. They had good reason: They had just gone through a revolution to overthrow tyranny. They anticipated that officials would fail to enforce constitutional mandates, laws, and regulations, and would disrespect the rights of the people. So they set up a constitution to address that concern. The plan of the constitution the Founders established was to divide governmental powers so another branch or level of government could check and balance if some corrupt situation arose, especially to protect the rights of the people.

In addition, the Founders brooked no obsequiousness toward the military. For example, the 1777 Vermont Constitution states, “the military should be kept under strict subordination to and governed by the civil power,” and that provision remains in effect.

This is not a hot-button issue. Just the opposite. Under our system of government it is impermissible for local governments to fail to act when the health, safety, and welfare of the people is being blasted by self-serving commanders. When the rights of the people are subordinated. When corrupt commanders are acting in blatant disregard of constitution, federal law, and their own military regulations.

Take action

So now is the time for the public and the local governments to take action. Ask your city councilor or selectboard members to introduce ordinances consistent with the US constitution, state and federal law, and with the military’s own regulations to protect cities full of civilians (a) from being used as human shields for F-35 nuclear bomb delivery vehicles, and (b) from repeated exposure to high-decibel F-35 training flights. Ordinances must be adopted to ban Vermont Air National Guard training with F-35 jets in or low over populated areas of your city, town, or village. Those ordinances must be adopted to protect you and your children.

The podcast was uploaded and this article was updated on September 12, 2022.

Write or call your public servants and demand an immediate halt to F-35 training in cities.

Governor Phil Scott 802-828-3333 Chief of Staff <Jason.Gibbs@vermont.gov>

Vermont National Guard's Complaint Line: 802-660-5379 (Note: the Vermont Guard told a reporter that it received over 1400 noise complaints. But the Guard won’t release what people said).

Submit your report & complaint to the active online F-35 Fall 2021-Summer 2022 Report & Complaint Form: https://tinyurl.com/5d89ckj9

See all the graphs and in-your-own words statements on the F-35 Spring-Summer 2021 Report & Complaint Form (513 responses): https://tinyurl.com/3svacfvx.

See links to the graphs and in-your-own words statements on all four versions of the F-35 Report & Complaint Form since Spring 2020, with a total of 1670 responses from 658 different people plus 77 more so far on the form that will remain active through summer 2022.

Senator Patrick Leahy 800-642-3193 Chief of Staff <john_tracy@leahy.senate.gov>

Senator Bernie Sanders 800-339-9834 <Senator@sanders.senate.gov>

Congressman Peter Welch 888-605-7270 Chief of Staff <patrick.satalin@mail.house.gov>

Burlington City Council <citycouncil@burlingtonvt.gov>

Burlington Mayor Miro Weinberger <mayor@burlingtonvt.gov>

Winooski Mayor Kristine Lott <klott@winooskivt.org>

S. Burlington City Council Chair Helen Riehle <hriehle@sburl.com>

Williston Selectboard Chair Terry Macaig <macaig@msn.com>

VT Senate President Becca Balint <bbalint@leg.state.vt.us>

VT House Speaker Jill Krowinski <jkrowinski@leg.state.vt.us>

Attorney General TJ Donavan <DonovanTJ@gmail.com>

States Attorney Sarah George <Sarah.fair.george@gmail.com>

Vermont’s Federal Prosecutor <usavt.contactus1@usdoj.gov>

Adjutant General Brig Gen Gregory C Knight <gregory.c.knight.mil@mail.mil>

Major J Scott Detweiler <john.s.detweiler.mil@mail.mil>

Wing Commander Col David Shevchik david.w.shevchik@mail.mil

Vermont National Guard Inspector General Lt. Col. Edward J Soychak <edward.soychak@us.af.mil>

US Air Force Inspector General Lt. Col. Pamela D. Koppelmann <pamela.d.koppelmann.mil@mail.mil>

Air Force Secretary Frank Kendall <Frank.Kendall@us.af.mil>