Flight Path Part 2: Rights signed away and forgotten

How activists dug up obscure documents that will make it harder for people dealing with the F-35s’ noise to soundproof their homes.

Flight Path is an in-depth report on grassroots opposition to the basing of F-35 fighter jets in Madison. Available as an audio documentary and a four-part written series, Flight Path is a partnership project of Tone Madison, Communication, and Northside News. The Air Force officially chose Madison as a site for the jets in April. But the fight continues in areas that stand to bear the brunt of the F-35s’ noise, environmental, and economic impacts. These efforts have already brought neighbors together to organize and advocate for their communities in a changing Madison.

Before reading this story, make sure you read Part 1: How F-35s galvanized neighbors in Eken Park.

Obscure legal agreements called avigation easements could prevent homeowners from even pursuing federal funds meant to help them soundproof their homes against the noise from fighter jets stationed at Madison’s Truax Field. The easements were added to the deeds of the properties when Dane County Airport was expanding a runway in the 1990s. Dane County offered homeowners near the airport $2,000 to sign their rights away more than two decades ago. Most of the current homeowners with avigation easements on their properties had never heard of them before this year.

In order to calculate the total value of the more than 1,000 residences in the 65 decibel zone, $255 million, Darcy Haber of Madison’s Solidarity Realty and five of her coworkers spent hours over the course of a night adding up the values of each house, address by address, in a spreadsheet.

Exposing avigation easements

Finding out which houses had avigation easements in their deeds took Haber and her team weeks.

“So we went to the city and we basically, [Madison District 18 Alder] Rebecca Kemble asked for a list of the homes that had the avigation easements and they couldn’t give it to her. They’re like, ‘we don’t have it in a list form.’ So there was no easy way to look it up. We could only do it from the Dane County City County building and we basically had to go through neighborhood by neighborhood,” said Haber.

Even the easements didn’t have the addresses of the homes written on them. “We would have to look at the language saying ‘lot 3, parcel 4,’” said Haber. The team then used a map to translate that into an address, and then looked up the current owners so that Solidarity Realty could mail them a letter about it.

I asked Haber: As you were doing that process were there addresses and names that came up that you recognized? People you knew or worked with?

Before I could finish my question, Haber cut in — “yes.”

“That was pretty heartbreaking. At first I just saw the address and it would be familiar. It turned out there were two of those on the list that we were involved in on one side or the other, that we actually had to tell our own clients, hey — and those we pulled out and we called them personally and say — this is what we found out about your home. I’m sorry, we did not know this, we didn’t know to ask for it, this is something that has been a deep dark Dane County secret for a while. But I do want to let you know that we have discovered that you have one on your home. And this is what it is.

“But also even though only two of them were transactions we were involved in, I knew a lot of people in the neighborhood anyway, or heard a lot of the names, and people I was working with in [Safe Skies Clean Water]. One of the [Safe Skies Clean Water] members you know was like ‘I think, I wonder if I have one,’ so he was the first address I looked up and he had one. And for him it was a matter of, he was a part of a condo. So he bought the condo originally when it was built, but the developer had sold the avigation easements and never told the condo association owners. However it is buried deep in their condo documents if you look closely enough, and you get to page 186, there it was disclosed to them in a very, a way that absolutely nobody knew about them.

“And the really, one of the saddest things was when we found out that most of these were bought by the county basically by the airport from the homeowner for $2,000. That’s all they paid the homeowner. So the homeowner was someone knocked on their door and offered them $2,000 and said, eh, you already have a lot of noise, you know, I’m going to give you $2,000 for that noise, what do you think? It was just a complete unfair transaction that the county should’ve had nothing to do with because it was, you know, the people didn’t have representation of a lawyer, it was not a standard thing to do, there was a total differential in power — someone coming to your door and offering you money and $2,000 can help you get a new roof or siding if you need it so it’s very tempting, even though overall that was a terribly unfair deal because it prevents these people, it may prevent, there are some lawyers that hope to get around it but it looks like it would prevent these people from getting any kind of money from F-35s arriving here. Any kind of sound mitigation, anything. Which is not to say that other people will necessarily get it. It’s not a given that anyone gets compensation. Which is the other great unfairness about this.”

The avigation easements were added to deeds during an expansion of the Dane County Airport in the 1990s. Some homeowners were complaining about noise, said Haber. “There was some pressure from the community to make it less noisy, so to deal with one thing they opened up a new runway, and that runway was going to expose other people to noise. But basically it was recommended by a firm that they did a whole airport study, they hired one of these engineering firms at great expense to do a whole airport study, and it was a recommendation that they buy up these rights while they could.”

I asked Haber how many of the homeowners that she talked to were folks that had received that $2,000.

“Very few. Almost, actually I didn’t speak to anyone that remembered it happening, usually it had happened two owners ago and they never revealed it. And I don’t think, I mean I don’t think people were even committing fraud. I think people were in their homes for a long time and it happened in the ‘90s, they sell 20 years later, do they remember that they once — they didn’t understand the significance of what they did, so they did not disclose it to the next person. Technically it should’ve been disclosed, but if someone doesn’t remember it they’re not committing fraud. So, then there’s no real recourse for anyone even though these people did not, bought these homes that had easements on them and the easement was not disclosed to them.”

The avigation easements were so secret, Haber said, that she didn’t know any real estate agents that knew they existed. Easements come up in real estate work all the time, she said. Joint driveways are essentially an easement. “If this was anything other than a deep dark secret we would know about it, as the real estate agents dealing with that property.”

I asked if Solidarity Realty had heard anything from the county in response to uncovering the easements. She paused, and exhaled.

“No, they’ve been completely silent and unhelpful.” She paused again.

“We did meet with [Dane County Executive] Joe Parisi and he basically said he knew nothing about it and he hoped there was a way around it. And that there was going to be a big public meeting in March that never happened.”

If the F-35s come to Madison, the avigation easements could have a lasting impact on homeowners. Or they might not. There are a ton of people who will be left out even if sound mitigation funding eventually comes through.

What will happen to people who rent? How about people who are seeking affordable housing in a city with historically low vacancy rates? How likely is it that the homes that they can afford to live in will be soundproofed?

What about people who live in public housing that isn’t even eligible for FAA soundproofing? Or people whose homes are just over the line of that noise contour?

And how much of a difference does mitigation really make? What about people who can afford to soundproof but want to open their windows in the summer, or whose kids like to hang out in the backyard, or who are suddenly worried about the effects that the noise from the F-35s taking off will have on their toddler at the daycare down the street?

How the issues and the activism fit together

The more I talked with people about the avigation easements, it was clear that what mattered to them wasn’t just the easements.

The easements are one piece of a bigger story. Just as Haber and the team at Solidarity Realty offered their time and expertise to dig up information on avigation easements, organizing against the F-35s has been the bringing together of many parts, held by many different people, who put in time and care and energy to offer their piece.

People started connecting to advocacy work that had been happening for years to uncover and address PFAS contamination from the airport and air base. A pediatrician got involved to talk about how these chemicals, as well as noise from the jets, could affect children. Organizers, including Brandi Grayson, Alder Rebecca Kemble, State Representative Chris Taylor and others flew to Burlington, Vermont to talk to residents there who had recently lost their fight against F-35s.

The F-35s will in one way or another impact everyone who lives in Madison, but they will be a daily reality for people who live nearest to the base and airport. Those communities are disproportionately low-income and communities of color.

It’s an acknowledgment that is written into the EIS explicitly. The City of Madison issued a staff analysis of the draft EIS in September. Their analysis says that even though the EIS confirms that the expected noise from the F-35s will disproportionately impact low income people, people of color and children, that even the EIS understates this impact.

It’s a familiar paradigm in Madison. We have some of the worst racial disparities in the country.

As Madisonians started to acknowledge this and largely do nothing about it, people living in the neighborhoods around the base started to speak up and to share their stories.

Eken Park residents Tehmina Islam and Eugenia Highland Granados had known each other as friends and neighbors for years. When Naydalyna was born six years ago, Islam was Granados’ midwife. They went together to the register of deeds office, and crossed paths with Omar Poler, who was checking to see whether there was an easement on the house he’d bought with his wife three years earlier.

It turned out that Islam did have an easement on her home, but Poler and Granados did not. Even though Poler didn’t have an easement, as the group of neighbors gathered in the register of deeds office that afternoon, many meeting each other for the first time and talking about the F-35s, he saw an opportunity.

Poler grew up watching family and friends organize to oppose a major mining project in Northern Wisconsin. After nearly three decades of organizing, they finally succeeded in stopping the Crandon Mine in 2003.

“I grew up mostly in La Crosse but I’m an enrolled member of the Mole Lake Sokaogon Chippewa community. And for most of my life growing up, I was in the context of the struggle against the Crandon Mine. So for 28 years, a series of multinational mining corporations were trying to develop one of the largest zinc copper sulfide deposits on the continent on both sides of our reservation, in fact underneath our reservation.

“And so my dad was involved in the early opposition at Mole Lake. And actually kind of established the foundation of the opposition against the Crandon Mine. And so I grew up around people that were organizing. Some of our very close family friends are the people that stopped that mine, and so over my life I saw, just normal people, you know, come together. Just normal people meet with one another, discuss things with one another, come up with strategies with one another, you know, protest, rally, write letters, hire lawyers, all these things that eventually led to stopping one of the largest potential, one of the largest projects in state history from happening and stopping a mineral district, a mining district in Northern Wisconsin. 

“And so, I just know that people coming together and talking with one another, that that can work. And I’ve always hoped that something like that could happen for us. And it’s so cool to be able to come together at the register of deeds and just meet with one another, and talk and meet each other as neighbors and then just come together and talk. I feel like one of the most powerful things that we can do is just come together over food, come together around a kitchen table and just be open with one another and to dream with one another, and that’s sort of what happened.”

The Crandon Mine struggle was a massive effort. Near the end of their campaign, a statewide mining moratorium was passed and remained in place until 2017. The 5,000 acre mine site was purchased and is still jointly owned and protected by the Forest County Potawatomi and the Sokaogon (So-cah-gin) Chippewa.

Poler saw firsthand family and friends taking on these huge multinational corporations and, eventually, winning. He saw firsthand the power of people gathering together.

So he approached Islam and Granados. And that’s exactly what they, and other neighbors at the register of deeds office that day, started to do. They shared meals together to get to know each other and to talk about the F-35s. They held a meeting and the group of neighbors started to grow.

I asked Omar, Islam and Granados when they started to call the group Eken Park Resistance.

There was a long pause and Granados jumped in — “yeah, you called it, Tehmina.” They both laughed.

“I think so in some email,” said Islam. “I don’t know — you know, we started to grow, right. Like it was at first Eugenia, Omar and myself, and a woman named Amanda, right, I think she was also there at the deed’s office that day. So the four of us, so it’s been, you know, led by people of color but we’ve got some really great white allies as part of Eken Park Resistance too.

“And so the four of us went to a meeting, then we started like an email list, then that started to get really intense and so Omar started a Google Group, and I had already been addressing people as Eken Park Resistance.” She laughed again. “So then we moved into an Eken Park Resistance Google Group, and Omar made some signs for Eken Park Resistance, so right, it just, it kind of just evolved.”

As Eken Park Resistance, the group has held get-togethers and shared meals, contacted elected officials, spoken at events and canvassed the neighborhood. They had also planned a series of events in March, including a speak out and a Water Walk along Starkweather Creek, that were moved online or postponed after the COVID-19 outbreak.

This relatively small, neighborhood-focused group of 10 of 15 people was also working alongside the broader Safe Skies Clean Water Coalition and plugging into their efforts at the same time.

“So we have been also supporting what the Safe Skies Clean Water Coalition has been doing,” said Granados. “For example one thing that we also did is we delivered postcards to Tammy Baldwin’s office. And so we went downtown and went, took turns in going up, and I went there with Eken Park Resistance to deliver tons of postcards.

“We also have been trying to engage multiple organizations to write letters. I work with the YWCA who has been really supportive of the whole movement against F-35s. It’s really tied to our mission of eliminating racism and empowering women, understanding the impact of the military, and everything that is going to happen, could happen here. So that has also been really helpful, I think, and having tons of people signing those postcards and then going there to deliver them has also been one of the actions.”

Coming up in Flight Path

May 11: Part 3: “Loud but affordable”

May 12: Part 4: The fight continues