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Million Air’s controversial plan to set up shop at Pease International Tradeport could now hinge on tenants’ rights.

The New Hampshire Supreme Court heard arguments this week from lawyers for Port City Air and Million Air over whether or not a tenant has the right to appeal a state permit.

“What Port City Air is asking you to do today is something this court has never done,” said Nathan Fennessy, Million Air’s attorney.

But Jake Marvelley, a lawyer for Port City, said it’s basic common sense that a tenant has legal standing when it comes to the right to protect their property.

“We should have the legal right to standing,” Marvelley said.

Million Air, based in Texas, wants to build a new fixed-based operator (FBO) facility, or FBO, at Pease to service private aircraft, raising objections from residents and nearby communities concerned about the potential negative environmental impacts. 

FBOs provide hangar space, maintenance and repair services, fuel, and other necessities for private planes and pilots. 

The proposed site is close to sensitive wetlands that feed the water supply for Pease and the town of Newington and is already the site of a major PFAS contamination that has impacted drinking water in the Seacoast region. 

Danna Truslow, a hydrogeologist Port City hired to look at the site, found levels of PFAS in the site Million Air wants to use are already ten times higher than the levels considered safe. Million Air will be building near the wetlands close to the aquifer that supplies water for several communities.

Port City filed an appeal when Million Air was granted a permit to work in the wetlands by the New Hampshire Department of Environmental Services Wetlands Bureau. However, the Port City appeal was rejected by the Wetlands Council without a hearing because they are tenants and not property owners.

“As Port City does not qualify as a landowner, it cannot qualify as an abutting landowner and therefore cannot be a ‘person aggrieved’ with standing,” wrote Zachary Towle, the DES hearing officer who issued the denial.

The law Towle cites in the denial, RSA § 482-A:10, does not define the terms for landowner, and Marvelley told the Supreme Court justices during this week’s hearing it ought to be interpreted in order to allow tenants to pursue their rights, not just landowners.

Port City has a 30-year agreement for its FBO at Pease and is one of many tenants in the Tradeport.

Fennessey said Port City has legal rights under the law if there is contamination after Million Air moves in, but not before. The right to stop the project and to appeal state permits belongs to landowners under the law, he said.

“What Port City is asking upends the administrative scheme enacted by the legislature. It would be appropriate, based on the plain and ordinary meaning of the language and your precedents, to uphold the Wetlands Council denial,” Hennessy.

Million Air still needs formal permission from Pease, the actual property owner. The Pease Development Authority is still considering the project and has yet to schedule a vote on its final approval.

The Federal Aviation Administration notified the PDA last year it is reviewing Million Air’s plan and the potential impacts it will have on the airport’s layout. As part of the FAA process, Pease is required to have a new environmental impact study done to FAA standards.

This fall, PDA Chair Steve Duprey started floating the idea that Pease itself could get into the game and start its own FBO business. 

“Obviously, it’s one of those things that you have to consider very carefully, but it just seems to make common sense,” Duprey told New Hampshire Business Review. “It would give us a greater degree of assurance that we had a range of options for people who use FBOs.”

Million Air isn’t cleared for landing at Pease International Tradeport just yet.

Under pressure from communities worried about the environmental impact of the proposed Million Air fixed-base operator facility, the Pease Development Authority board voted last week to delay the project by six months.

The vote moves the PDA’s deadline for a final decision on Million Air’s controversial construction project from the end of this month to the end of December. That gives time for another engineering review paid for by Million Air to study the potential impacts on wells adjacent to the proposed site.

Earlier this month, Newington selectmen raised the alarm among residents, asking people to contact state leaders about Million Air’s project. One of the wells that the construction could impact is the Haven Well, a significant source of drinking water for Newington.

Meghann Wayss, a Newington resident whose family has been on the Seacoast since the 1700s, told NHJournal she and others have been frustrated by the seeming lack of interest the PDA has taken in protecting her town’s drinking water and the health of its residents.

“I’m disheartened that it’s harder to build a home in the private sector than it is for the PDA to rubber stamp an FBO through an area that is incredibly delicate and so important to our local water supply,” Wayss said.

The board did not discuss the change Thursday, though PDA member Margret Lamson questioned if there needs to be special care taken for the wells.

“Not the whole town of Newington is on the Haven Well,” Lamson said. “There are those that are saying the whole town is on the Haven Well, but the whole town is not.”

According to a memo from Michael Mates, the PDA’s director of engineering, Million Air needs more time to complete a review of the Gosling Station Wells, which includes water that flows into the Haven Well. 

The Gosling Wells were taken offline in the 1950s when Pease was built as an Air Force base. Some of the highest concentrations of PFAS chemicals in the country have been found at and around military bases, “in large part because of the military’s longtime reliance on the firefighting foam AFFF — PFAS are active ingredients,” according to Military Times.

The PFAS contamination has haunted residents on the Seacoast for years. PFAS is a chemical with a decades-long half-life and has been linked to serious illness and certain cancers. 

Peter Bragdon, a spokesman for Texas-based Million Air, said the company is more than willing to see the well review be completed before moving on to the final approval.

“Million Air supports the extension of deadlines for our FBO project at Pease. In the two and a half years since this project was first proposed, the Pease Development Authority has consistently followed a deliberate and thorough approach to make sure its board has the facts needed to make an informed decision. This is another example of the PDA exercising its independent oversight,” Bragdon said. “Million Air looks forward to our formal presentation to the PDA Board of Directors in the coming months.”

Newington residents are asking for help protecting their town’s drinking water from potential contamination some fear could be caused by the Million Air construction project at Pease.

“Everyone is extremely concerned,” said resident Meghann Wayss. “They have a little bit of trauma because they’ve seen this steamroll process.”

Wayss is one of the hundreds of Seacoast residents imploring the Pease Development Authority to listen to their concerns about Million Air and the Texas-based company’s plan to build a new private plane facility at Pease. So far, she told NHJournal, it seems like they are being ignored.

“Due process is not taking place,” Wayss said.

Newington’s Selectboard recently published an open letter detailing the perceived problems with Million Air’s proposed facility. The letter also asks residents to get involved in protecting the town.

Selectboard Chair Bob Blonigen said Newington is running out of options as the PDA gets closer to approving Million Air’s new fixed-base operator facility, which includes plans for a 90,000-gallon jet fuel farm many say is too close to wetlands that feed the region’s drinking water systems.

Residents don’t want the PDA to rubber stamp the project with what they say are unanswered questions remaining regarding the safety of town drinking water.

“There’s a groundswell of concern in Newington that the PDA is not responding to our questions; they are not really giving the project a proper look,” Blonigen said.

More than 1,200 residents have signed an online petition asking the PDA to slow down.

Million Air wants to build its fixed-base operator facility on land that will require dredging and filling of wetlands near the Haven Well, according to the Newington board’s letter. The Haven Well feeds into the drinking water for the town of Newington. Residents already living with PFAS contamination from Pease fear Million Air’s project poses a risk of worsening the problem. They cite a review of the project conducted by Danna Truslow, a hydrogeologist hired to look at the site by Port City Air, an aviation company already at Pease.

Truslow found levels of PFAS within Million Air’s proposed site already 10 times the PFAS levels considered safe. None of this seems to make an impression on the PDA, Wayss said.

Resident Jennifer Wiener said while the PDA meetings about Million Air are taking place in public, they are held at times most members of the public cannot attend. The meetings are in the middle of the workday on weekdays. She said that even if a resident can get to a meeting, they are shut out from commenting or asking questions.

“We feel there’s no transparency to this project,” Wiener said. 

Wayss recalled arriving late to a recent meeting set for 2 p.m., only to find it was already over. Wayss entered the room at 2:09 p.m. to find the board adjourning the meeting.

“It’s very apparent there is a desired result, and the process is being used to get that desired result,” Wayss said.

State Rep. David Meuse (D-Portsmouth) said he and other Seacoast lawmakers have been hearing volumes from residents who are worried about the project. He said the concerns being raised by Newington selectmen and residents ought to be addressed openly.

“All of the concerns the selectmen have raised are more than legitimate,” Meuse said. “These are questions that need to be answered.

Meuse met this week with state Sen. Rebecca Perkins Kwoka (D-Portsmouth) and state Rep. Robin Vogt (D-Portsmouth) to discuss the situation. He said lawmakers want to get all the facts and fully understand the issues before taking the next step. The biggest concern is making sure Seacoast residents don’t again have their drinking water contaminated, he explained.

“We need to do the homework and have the right kind of conversations with people and advocate for people in the community,” Meuse said. “We want to make sure people who have been victimized before won’t get victimized again.”

Residents like Wayss and Weiner want the PDA to conduct a public, third-party peer review of the design of the project, review alternative sites at Pease where Million Air’s facility could be safely located, bring in a professional wetlands engineer to study the current’s site buffer zone; and offer a complete public explanation of what the public benefit is being realized through the Million Air project. 

“We still do not understand how this is a public good when it’s ruining Newington’s drinking water,” Weiner said.

Pease International Tradeport sits on land taken from the town of Newington decades ago when the U.S. government created the Pease Air Force Base, she noted. Since that land went to the Tradeport when the base closed, she said the PDA at least owes residents an explanation.

“We gave away 51 percent of our town when the airbase came in,” Weiner said. “I would expect the PDA to be better partners.”

Supporters of the Million Air project note the Truslow review was funded by Port City Air, a competitor who has no interest in seeing the project move forward.

Peter Bragdon, spokesman for Million Air, said Newington officials and residents have no reason to worry. The wetlands delineation surrounding the proposed facility has been through an independent, third-party review ordered by the PDA already. The New Hampshire Department of Environmental Services has also looked at it. He said the company has agreed to abide by any findings these reviews uncovered.

“Million Air believes the PDA and NH DES are exercising proper independent oversight in this process by ordering an independent third-party review and by having a team of experts, including a certified wetland scientist, walk the property,” Bragdon said. “We look forward to the formal presentation of our proposal to the PDA Board of Directors in the coming months, where the facts can be discussed openly.”

As the Million Air proposal to build a new fixed-based operator facility at Pease International Tradeport gets ready for take-off, a report about the already high PFAS contamination has some area residents concerned.

“There may be safeguards in place, but you’re just too close to this wetland, and there are too many unknowns,” said Danna Truslow, a hydrogeologist hired by Port City Air, to review the available data.

Truslow reviewed data gathered by the Air Force in 2014, the most recent available. Her analysis found the site Million Air wants to use for its FBO construction already has PFAS levels up to 10 times higher than those considered safe. And, she warned, construction that includes any dredging and filling of the adjacent wetlands risks disturbing the contamination, which could migrate to the aquifer that feeds the Haven Well or towards Hodgdon Brook and beyond.

The Air Force cleaned up many known chemicals at the site of its former air base, but PFAS contamination from the site did not start showing in drinking water until recently. The data she used was collected after the cleanup was completed, Truslow said. Questions remain about how much PFAS is in the water and where the chemicals are concentrated.

“A lot of that has been cleaned up, but the PFAS is a more recent concern, and we don’t have a full handle on where it all is,” Truslow said.

Truslow is also concerned that soil dredged from the site and used to create berms, part of Million Air’s proposal, could result in more PFAS exposure.

“They are going to be digging, moving soil around, stockpiling soil; we don’t have a good idea on how much contamination is in there because we don’t have that data,” Truslow said. “There’s a lot of detail that hasn’t really been provided.”

Peter Bragdon, the spokesman for the Texas-based Million Air, dismissed Truslow’s claims, noting she was hired by its competitor Port City Air.

“The report talks about the proposed Million Air site without mentioning what is happening at the site next door, known as Hangar 229, a site occupied by Port City Air,” Bragdon said.

“Sitting behind Port City Air’s Hangar 229, adjacent to the same wetland discussed in the Truslow report, is a large pile of soil put there by Port City Air during their own construction project. Sitting there, uncovered, for months or even years.”

Bragdon said his company’s plans have already met with approval from the New Hampshire Department of Environmental Services, which issued a permit for the company’s construction in the wetlands. Million Air is prepared to deal with all wetland and soil issues that could arise during the construction and operation, he said. 

Bragdon blamed Port City Air for stirring up opposition to the project.

“It is clear to us Port City Air’s objections to Million Air have more to do with a fear of competition than with any concern for the environment,” Bragdon said.

Port City representatives have denied the charge and claim they share concerns about the environmental impact harbored by local residents. Bob Blonigen, chairman of the nearby Newington Board of Selectmen, complained that his town’s issues with the project are going unheard by the Pease Development Authority Board of Directors.

“Most of our concerns are that they are building their fuel farm right on top of an aquifer,” Blonigen said.

PFAS from the Pease base left nearly all of the private wells in Newington too contaminated for safe drinking, he said. He said residents had been forced to hook up to the water system out of Portsmouth, which is now in danger from potential PFAS contamination from the Million Air project.

“Newington has concerns,” Blonigen said.

Truslow and Port City representatives hope to be able to share their questions and concerns with the full PDA board before Million Air is granted its final approval. 

The New Hampshire Air National Guard at Pease is under pressure to end prayer and readings from the Bible by a chaplain during their ceremonies, but a spokesman for the military base said they plan on continuing the tradition anyway.

Last month, the Freedom from Religion Foundation (FFRF), a Wisconsin-based group, sent a letter to the leadership of the N.H. Air National Guard after “a concerned guardsman” contacted the organization to tell them that ceremonies at Pease International Tradeport led by a chaplain regularly include prayer.

However, the First Liberty Institute, a religious liberties legal group in Texas, is pushing back against the effort to end those activities, sending their own letter to the base on Tuesday.

Greg Heilshorn, spokesman for the New Hampshire National Guard, which includes the Air National Guard and Army National Guard, confirmed to NH Journal on Thursday that they received the letters from the organizations, but do not plan to respond to them.

“We don’t plan on responding to the FFRF,” he said. “We haven’t had any formal complaints from our airmen internally regarding any concerns with prayers being said at various ceremonies. We will continue as we’ve done before. It’s our tradition. We believe our chaplains…[are a] vital part of our organization.”

Sam Grover, staff attorney for FFRF, said he is “disappointed” that the N.H. National Guard refuses to respond to their complaint.

“Now that the base has been made aware that there are guardsmen who object to this practice, it is all the more important that they take this issue seriously,” Grover told NH Journal in an interview. “I hope they would take a complaint letter from FFRF just as seriously as any formal compliant internally. We will absolutely get back in touch with the complainant and review other options. We will see what other legal remedies we can pursue.”

The FFRF letter sent in February was to ensure that the military base is respecting the separation of church and state by not forcing active duty members or veterans from participating in prayers and Bible readings that mention the Christian God. The group claims that prayer and readings from the Bible in this capacity are unconstitutional and go against the Establishment Clause in First Amendment of the U.S. Constitution that prohibits the establishment of religion from the federal government.

“Calling upon soldiers, their families, and other guests to pray is coercive and beyond the scope of a government entity like the Air National Guard. All military members are free to pray privately or to worship on their own time, in their own way. They do not need their employer to dictate prayers for them. It is also simply insensitive for a government employer to inflict prayer on employees regardless of their personal beliefs.”

“Christian prayers delivered at an official military event violate the Constitution’s mandate of government neutrality between religious beliefs,” the letter continued. “Any prayer — including non-denominational prayer — violates the required neutrality between religion and nonreligion. By imposing prayer on its guardsmen at mandatory events, the Air National Guard is violating the constitutional limits on government religious endorsement.”

First Liberty is arguing that chaplains have every right to say prayers and read from the Bible, calling FFRF’s letter erroneous.

“The FFRF’s position and legal argument are incorrect,” senior counsel Mike Berry wrote in a Tuesday letter to Pease leadership officials.

“Federal law, military regulations, and court precedents belie the FFRF’s specious claims,” he added. “Uniformed chaplains are clearly permitted, indeed protected, when they offer invocations at military functions.”

Heilshorn said prayer is a “traditional part” of their ceremonies — whether they’re deployment, retirement, or promotion ceremonies — but he would classify them as nondenominational.

“Typically they’ll [chaplains] offer a prayer in the beginning [of a ceremony] and then a closing prayer at the end of the ceremony,” he told NH Journal. “There is no forced message in them. Typically it’s open to all religions. If you do not subscribe to a specific religion, you are free to not participate, whether you bow your head or not, or just prefer to stand in formation.”

The fact that the guardsmen are forced to stand in formation while listening to a religious message is “government coercion,” Grover said.

“Military institutions are inherently coercive,” he said. “In the chain of command a subordinate officer must respond to what his or her superior is asking without questions. Guardsmen at this base are expected to follow orders and those order often include attending invocations with prayer. It is absolutely incumbent upon a government employer to allow its employees to do their jobs free from proselytization. That is currently not happening at Pease and that needs to change.”

Heilshorn said he attended many ceremonies as a public affairs officer, but he’s never heard of chaplains quoting the Bible during invocations. He then backtracked to say that they “might quote some of the more iconic or well-known verses about going into combat or going into war, but nothing at length or in depth.”

“If they are quoting something out of Scripture, they’re typically all inclusive and thematic, whether it’s of love or support or courage or hope,” he said.

Regardless if the chaplain’s prayer has a universal theme, they could still use the opportunity to push their own beliefs, Grover said.

“Religious promotion in the military is a rampant problem,” he said. “There are many situations where chaplains try to indoctrinate service members. A lot of high ranking officers are themselves religious so they don’t see the problem. But if a chaplain is choosing to also promote their personal religious beliefs, then they’ve crossed the line.”

Heilshorn reiterated the chaplain’s role in providing spiritual guidance before guardsmen are deployed and being a resource for their families.

First Liberty wrote their letter on behalf of the Chaplain Alliance for Religious Liberty, an organization that touts more than 30 ecclesiastical endorsing agencies and 2,600 military chaplains. Berry pointed to the Religious Freedom Restoration Act (RFRA) and the National Defense Authorization Act that forbids the federal government “from substantially burdening a person’s religious exercise absent a demonstrated compelling government interest that is achieved by the least restrictive means.”

Unless it impacts “military readiness, unit cohesion, or good order and discipline, the DoD [Department of Defense] must accommodate individual expressions of religious belief, which undoubtedly include a military chaplain’s invocation,” Berry wrote.

First Liberty also noted the 1997 federal court ruling of Rigdon v. Perry, which ruled in favor of a Catholic priest and Orthodox Jewish rabbi, both military chaplains, who wanted to speak about banning partial-birth abortion, despite a military ban on preaching on pending federal legislation. The court determined that the military could not ban chaplains from following the instructions of their religious leaders.

“In Rigdon v. Perry, a federal court explained that when military chaplains are acting in a religious capacity — such as when conducting a sermon or offering an invocation — they are not acting under color of military authority, and ‘it is wholly appropriate for them to advance their religious beliefs in that context,’” Berry wrote in the letter. “Thus, when military chaplains engage in religious conduct, their conduct is protected under the First Amendment to the Constitution.”

Grover argues that court case doesn’t apply to the situation at Pease.

“That case had nothing to do with a formal military event,” he said. “That conclusion is completely in line with our argument that when a military chaplain is invited to an official military event, they are acting on behalf of the military. This is government speech. This is the government promoting a message at an event. When a government employee is invited to speak in an official capacity, they have an obligation to not promote religion.”

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