Y-12 fence that blocks protest area to remain up for now; judge questions lawsuit jurisdiction

KNOXVILLE—The temporary fence that blocks a traditional protest area at the Y-12 National Security Complex will stay up for now.

A group that has used the grass field and small parking lot for protests and vigils near the Y-12 entrance at Bear Creek and Scarboro roads had sought to have the fence removed before an annual spring demonstration on Saturday. Workers started erecting it on Monday.

But the arguments about the fence and its alleged violations of the protesters’ First Amendment rights took a surprise turn in U.S. District Court in Knoxville on Friday.

District Judge Curtis L. Collier quickly raised a question about whether the court has jurisdiction to address the complaint filed Wednesday by the Oak Ridge Environmental Peace Alliance, its board members, and people affiliated with the nonprofit organization.

Collier’s questions about jurisdiction appeared to catch attorneys by surprise. They had apparently focused on First Amendment issues and the request to remove the fence, and not on jurisdiction.

“Your honor, I didn’t know that was going to be an issue,” said John E. Eldridge, one of two attorneys for the 23 plaintiffs.

Collier acknowledged that the OREPA complaint took a lot of work to prepare, but it focused on the “big picture.” Jurisdiction must be pleaded and proven in every case, he said.

At one point, Assistant U.S. Attorney Suzanne H. Bauknight asked the court to dismiss the OREPA complaint, but Collier instead gave the plaintiffs two weeks to explain why the federal court has jurisdiction or why the complaint should be amended.

“We’ll find that jurisdiction,” Eldridge responded.

OREPA and its representatives said they were disappointed.

“We never got to address the issue that we came here for, which was the fencing out of First Amendment rights,” Eldridge said.

The National Nuclear Security Administration announced plans to erect the fence last week. A separate agency within the U.S. Department of Energy, the NNSA said it was responding to three trespassing incidents involving five people at Y-12 in the past year, including the July 28 security breach.

Francis L. Lloyd Jr., the other attorney for the plaintiffs, said the fence is an “outright deprivation” of constitutional rights, and injunctive relief would be appropriate. That relief would have required the fence to be removed.

However, Collier denied the request, meaning the fence can stay in place for now.

Bauknight and U.S. Attorney William C. Killian have said the federal government has the right to close a previously open public forum such as the protest area at Y-12. They said the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.

OREPA opposes Y-12’s nuclear weapons work. The group said the small area that is now enclosed by the fence at Y-12’s main entrance has been used for about 700 gatherings during the past 25 years. They said the fence violates First Amendment rights to freedom of speech, the right to assemble, and the right to petition the government for a redress of grievances.

OREPA Coordinator Ralph Hutchison said the group still plans to have its annual spring demonstration, which starts at 12:30 p.m. Saturday at the Friendship Bell at A.K. Bissell Park. It ends with a walk down South Illinois Avenue to Y-12, where protesters plan to tie signs and peace cranes on the new fence, Hutchison said.

Friday’s court hearing forced organizers to change the time and location of some events, and most activities will take place at A.K. Bissell Park this year, Hutchison said.

He said he would still like to see the fence removed.

“We all win if they take the fence down,” Hutchison said. “Everyone’s rights are at risk if anyone’s rights are taken away.”

Note: This story was updated at 11:35 a.m. April 6.