Informing Citizens Against Run v. Faa

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2018
• Docket: 17-71536
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 18 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

INFORMING CITIZENS AGAINST No. 17-71536 RUNWAY AIRPORT EXPANSION, Agency Petitioner,

v. MEMORANDUM*

FEDERAL AVIATION ADMINISTRATION,

Respondent.

On Petition for Review of an Order of the Federal Aviation Administration

Argued and Submitted December 6, 2018 Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

Petitioner Informing Citizens Against Runway Airport Expansion seeks

review of the Federal Aviation Administration’s ("FAA") decision to approve a

project to construct a 5,200-foot runway at the Ravalli County Airport in Hamilton,

Montana. The FAA’s action was not "arbitrary, capricious, an abuse of discretion,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), so we deny the

petition.

1. Petitioner has standing. Petitioner’s members raised environmental

concerns throughout the comment period and connected their concerns about

property values to environmental issues. Their concerns fall within the National

Environmental Policy Act’s ("NEPA") environmental zone of interests. Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224–25

(2012).

2. The FAA acted within its discretion, and exercised its technical expertise,

in using fuel sales to estimate annual operations at the airport.1 The FAA made the

underlying data about the fuel sales available with the 2014 environmental

assessment, which explained that the forecasting report relied in part on

handwritten records of fuel sales to estimate operations. NEPA requires an agency

to "disclose the hard data supporting its expert opinions," but NEPA does not

dictate how the agency must disclose that data. Ecology Ctr. v. Castaneda, 574

F.3d 652, 667 (9th Cir. 2009). Here, the FAA provided "sufficient environmental

information, considered in the totality of circumstances, to permit members of the

1 We assume, without deciding, that Petitioner properly raised this issue during the administrative process.

2 public to weigh in" and "inform the agency decision-making process." Bering

Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng’rs, 524 F.3d

938, 953 (9th Cir. 2008).

Especially in the realm of aviation forecasting, the FAA has substantial

discretion to choose among available forecasting methods, as long as it explains its

choice. Nat’l Parks & Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677,

682 (9th Cir. 2000); see also N. Plains Res. Council, Inc. v. Surface Transp. Bd.,

668 F.3d 1067, 1075 (9th Cir. 2011) ("The agency must explain the conclusions it

has drawn from its chosen methodology, and the reasons it considered the

underlying evidence to be reliable." (internal quotation marks omitted)). Here, the

FAA explained that FlightAware cannot capture every operation at the airport, so

the FAA relied on records of the airport’s fuel sales to get a more complete picture

of annual operations. The FAA also explained that the records contained

identifying numbers linked to specific aircraft, enabling the agency to determine

which planes bought fuel and eliminate duplicates that also showed up in

FlightAware’s data. In sum, the FAA gave the necessary explanation here, so we

defer to its chosen methodology for aviation forecasting.

3. The FAA reasonably articulated the project’s purpose and need and

considered an appropriate range of alternatives. Substantial evidence—in the form

3 of FlightAware data and records of fuel sales—supports the FAA’s conclusion that

B-II operations at the airport either exceeded, or came so close to, the 500-

operations threshold that the airport needed a 5,200-foot runway to accommodate

B-II aircraft safely. Although a 4,800-foot runway would accommodate most

planes using the airport, the FAA decided that the airport required a 5,200-foot

runway because: (1) the airport sees some use by larger planes that would benefit

from a 5,200-foot runway; (2) the 5,200-foot runway would allow planes to carry

more fuel, passengers, and cargo (in particular, firefighting Forest Service planes

could carry their full capacity of fire retardant); and (3) the FAA has limited funds

to disburse, and it would be financially responsible to build a 5,200-foot runway

initially instead of building a 4,800-foot runway and later extending it by 400 feet

to accommodate larger planes.

Moreover, the FAA initiated its environmental assessments in response to

the County’s project proposal, but the FAA did not simply adopt the County’s goal

of having a 5,200-foot runway as its own. An agency may allow a private interest

to give context to its statement of purpose and need. See Nat’l Parks &

Conservation Ass’n v. BLM, 606 F.3d 1058, 1071 (9th Cir. 2010) (considering the

BLM’s purpose and need statement "against the background of a private need").

And the FAA has a statutory mandate to promote "the safe operation of the airport

4 and airway system" and efficient air transportation. 49 U.S.C. § 47101(a)(1), (b).

Providing adequate runway length furthers both of those goals by giving pilots

higher safety margins and allowing aircraft to fly at full capacity. Against that

background, the FAA did not define the purpose and need "in unreasonably narrow

terms." League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S.

Forest Serv., 689 F.3d 1060, 1069 (9th Cir. 2012).

Consequently, the FAA also acted reasonably by seriously considering only

alternatives that involved a 5,200-foot runway. See Wild Wilderness v. Allen, 871

F.3d 719, 729 (9th Cir. 2017) ("As the Statement of Purpose and Need was not

unreasonably narrow, neither was the range of alternatives."). An agency need

only evaluate alternatives that are reasonably related to a project’s purpose. Id. at

728. Considering an alternative that maintained the current runway length would

have contravened the FAA’s mandate to promote safe and efficient air

transportation,

§ 47101(a)(1), (b), given that past assessments of the airport recognized that the

current runway can accommodate only 75% of B-II aircraft. Because keeping the

current runway length was not a viable alternative, the FAA did not violate NEPA

by failing to examine that alternative. League of Wilderness Defs., 689 F.3d at

1071.

5 4. The FAA addressed the project’s effect on property values sufficiently to

comply with NEPA. The FAA examined several studies about the effect of aircraft

noise on property values. The FAA also explained that no specific studies existed

for the airport, although "noise modeling" for the preferred alternative showed that

no residential properties would come within "the 65 DNL contour"—the area

where planes are loudest. Petitioner complains that the FAA did not address the

studies that its members provided, but "an agency need not respond to every single

scientific study or comment." Ecology Ctr., 574 F.3d at 668. Petitioner has not

shown how the FAA’s failure to respond to any specific comment or study renders

its final decision arbitrary.

Petitioner also argues that it should have had another chance to comment on

the project’s effect on property values after the FAA released the final

environmental assessment in 2017. Petitioner’s argument is untenable as a

practical matter because it would create an endless loop in the administrative

process; an agency could never proceed with an action as long as the public

continued to comment on new information that the agency released.

5. The FAA gave the public a meaningful opportunity to participate in the

decision-making process. The comment period for the 2014 environmental

assessment lasted 73 days, including an extension at Petitioner’s request. The

6 2014 assessment contained information on each subject about which Petitioner’s

briefs expressed concern. Although NEPA’s standards for the necessary level of

public participation remain "amorphous," this court has recognized that NEPA

does not require "substantial" public participation. See Cal. Trout v. FERC, 572

F.3d 1003, 1017 (9th Cir. 2009) ("We have held that a complete failure to involve

or even inform the public about an agency’s preparation of an [environmental

assessment] would violate NEPA’s regulations, but have also concluded that the

circulation of a draft [environmental assessment] is not required in every case."

(citations and internal quotation marks omitted)).

6. The FAA was not required to prepare an environmental impact statement.

The mere fact that an agency prepared a lengthy environmental assessment does

not, without more, demonstrate that the agency must prepare an environmental

impact statement. See City of Las Vegas v. FAA, 570 F.3d 1109, 1115 (9th Cir.

2009) (explaining that issuing a finding of no significant impact "excuses the

agency from its obligation to prepare an [environmental impact statement]").

Petition DENIED.