JOHN C. CRUDEN
Acting Assistant Attorney General

JAMES C. KILBOURNE
M. ALICE THURSTON
Attorneys
Environment and Natural Resources Division
United States Department of Justice
Washington, D.C. 20530
(202) 514-2772

OF COUNSEL:
DAPHNE A. FULLER
Manager, Environmental Law Branch
Federal Aviation Administration
Washington, D.C. 20591

                        TABLE OF CONTENTS

                                                              Page

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of Jurisdiction  . . . . . . . . . . . . . . . . . . .1

Statement of the Issues  . . . . . . . . . . . . . . . . . . . .2

Statement of the Case  . . . . . . . . . . . . . . . . . . . . .3

     A.   Statutory and Regulatory Background  . . . . . . . . .3
          1.   Federal Aviation Act  . . . . . . . . . . . . . .3
          2.   National Historic Preservation Act  . . . . . . .7
          3.   National Environmental Policy Act . . . . . . . .9
          4.   Transportation Act  . . . . . . . . . . . . . . 12

     B.   Statement of Facts . . . . . . . . . . . . . . . . . 12
          1.   Bedford Hansom Airport and its Presence in
               the Surrounding Community . . . . . . . . . . . 12
          2.   The History of Shuttle America's Operations at
               Hanscom . . . . . . . . . . . . . . . . . . . . 17
          3.   The FAA's Environmental Assessment of Shuttle 
               America's Application to Initiate Service to 
               LaGuardia, and the Decision on Review . . . . . 23

     C.   Judicial Proceedings and Current Status  . . . . . . 28

Summary of Argument  . . . . . . . . . . . . . . . . . . . . . 29

Argument:

     I    Standard of Review . . . . . . . . . . . . . . . . . 32

     II   Petitioners' Challenge is Untimely and This Court 
          Consequently Lacks Jurisdiction  . . . . . . . . . . 34

     III  This Court Also Lacks Jurisdiction Because SOH
          Has Not Demonstrated Standing  . . . . . . . . . . . 37

          1.   Standing Requirements . . . . . . . . . . . . . 37
          2.   SOH has Failed to Demostrate Adequately
               Injury-in-Fact  . . . . . . . . . . . . . . . . 39
          3.   SOH has Not Demonstrated Traceability or 
               Redressibility  . . . . . . . . . . . . . . . . 40

     IV   The FAA Properly Determined That Its October 2000 
          Approval of the OpSPEC Amendment Was Not an 
          Undertaking With The Potential To Cause Effects To 
          Historic Properties  . . . . . . . . . . . . . . . . 41

          1.   Section 106 Regulatory Requirements . . . . . . 41
          2.   The FAA Properly Determined That Shuttle
               America's 2000 OpSpec Amendment did not
               Have the Potential to Cause Effects on Historic 
               Properties  . . . . . . . . . . . . . . . . . . 43

     V    The FAA's Conclusion That The October 2000 Approval
          Falls Within A Categorical Exclusion From Further NEPA 
          Review Was Not Arbitrary and Capricious  . . . . . . 48

          1.   The FAA's Regulations Specifically Provide That 
               Actions Such As the 2000 OpSpec Amendment 
               Are Categorically Excluded From Further NEPA 
               Review  . . . . . . . . . . . . . . . . . . . . 49
               a.   The FAA Properly Determined that the Impacts 
                    of the 2000 OpSpec Amendment were Minimal  51
               b.   Community Opposition to Growth at Hanscom 
                    is not the Type of Controversy Which Requires 
                    an Enviornmental Assessment  . . . . . . . 53
          2.   The FAA Need Not Have Considered Cumulative 
               Impacts Before Determining that this Action is 
               Categorically Excluded. . . . . . . . . . . . . 55

     VI   The FAA's Action Did Not Violate Section 4(F)  . . . 57

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Certificate of Length  . . . . . . . . . . . . . . . . . . . . 62

Statement of Related Cases . . . . . . . . . . . . . . . . . . 63

Addendum

                      TABLE OF AUTHORITIES

                                                            Page
CASES:

Adams v. Watson, 10 F.3d 915 (1st Cir. 1993) . . . . . . . . . 39
Adler v. Lewis, 675 F.2d 1085 (9th Cir. 1982)  . . . . . . . . 58
Advanced Micro Devices v. Civil Aeronautics Bd., 742 F.2d 1520 
     (D.C. Cir. 1984)  . . . . . . . . . . . . . . . . . . . . 33
Alaska Center for the Environment v. Forest Service,  
      189 F.3d 851 (9th Cir. 1999) . . . . . . . . . . . . . . 50
Allison v. Department of Transportation, 908 F.2d 1024 
     (D.C. Cir. 1990)  . . . . . . . . . . . . . . . . . 12,58,59
American Airlines, Inc. v. Department of Transportation,
       20 F.3d 788 (5th Cir. 2000) . . . . . . . . . . . . . .  7
Atakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990) . . 48
Baltimore Gas & Electric v. Natural Resources Defense Council,
     462 U.S. 87 (1983)  . . . . . . . . . . . . . . . . . . . 32
Bicycle Trials Council of Marin v. Babbitt, 82 F.3d 1445 
     (9th Cir. (1996)  . . . . . . . . . . . . . . . . . . . . 32
Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115 
     (9th Cir. 1980), cert, denied, 450 U.S. 965 (1991)  . . . 43
C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569 (11th Cir. 1988)  . . 36
Casas Office Machs., Inc. v. Mita Copystar America, Inc.,
     42 F.3d 668 (1st Cir. 1994) . . . . . . . . . . . . . . . 34
Citizens Advocates for Responsibile Expansion, Inc., 
     (I-CARE) v. Dole, 770 F.2d 423 (5th Cir. 1985)  . . . .58,59
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)33
City of Alexandria v. Federal Highway Admin., 756 F.2d 1014 
     (4th Cir. 1985) . . . . . . . . . . . . . . . . . . 11,32,50
City of Bridgeton v. Slater, 212 FD.3d 448 (8th Cir. 2000) .17,59
City of Grapevine v. Department of Transportation, 17 F.3d 1502
     (D.C. Cir.), cert. denied, 513 U.S. 1043 (1994) . . . . . 58
City of Los Angeles v. FAA, 138 F.3d 806 (9th Cir. 1998) . . . 57
City of New York v. Slater, Second Circuit No. 00-4124 . . . . .7
Coalition Against a Raised Expressway v. Dole, 835 F.2d 803 
     (11th Cir. 1982)  . . . . . . . . . . . . . . . . . . . . 58
Communities, Inc. v. Busey, 956 F.2d 619, (6th Cir.), 
     cert. denied, 506 U.S. 953 (1992)  . . . . . . . . . . 32,33
Eagle Foundation v. Dole, 813 F.2d 798 (7th Cir. 1987) . . . . 33
Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996)39
Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985) . . .36,56
FW/PBS Inc. v. City of Dallas, 493 U.S. 215 (1990) . . . . . . 38
Hanscom Area Towns Committee, et al. v. Massachusetts Port 
     Authority, Sup. Crt. Civ. Action No. 99-04461-F   . . . . 17
Hunt v. Washington State Apply Advertising Comūn, 432 U.S. 333 
     (1977)  . . . . . . . . . . . . . . . . . . . . . . . . . 38
LaFlamme v. FERC, 852 F.2d 389 (9th Cir. 1988) . . . . . . . . 54
Lockhart v. Kenops, 927 F.2d 1028 (8th Cir.), cert. denied, 
     502 U.S. 863 (1991) . . . . . . . . . . . . . . . . . . . 54
Los Angeles v. Lyons, 461 U.S. 95 (1983) . . . . . . . . . . . 39
Lujan v. Defenders of Wildlife, 962 F.2d 108 (1st Cir. 1992)37,38
Morongo Band of Mission Indians v. FAA, 161 F.3d 569 
     (9th Cir. 1998) . . . . . . . . . . . . . . . . . . 32,46,59
National Air Transportation Assūn v. McArtor, 866 F.2d 483 
     (D.C. Cir. 1989)  . . . . . . . . . . . . . . . . . . .34,56
National Parks and Conservation Association v. DOT, 
     222 F.3d 677 (9th Cir. 2000)  . . . . . . . . . . . . . . 57
National Trust for Historic Preservation v. Dole, 828 F.2d 776
     (D.C. Cir. 1987)  . . . . . . . . . . . . . . . . . . . . 32
National Trust for Historic Preservation v. U.S. Army Corps of 
     Engineers, 552 F. Supp. 784 (S.D. Ohio 1982)  . . . . . . 47
Northbrook Excess & Surplus Ins. Co. v. Medical Malpractice
     Joint Underwriting Assūn, 900 F.2d 476 (1st Cir. 1990)  . 34
Northwest Environmental Defense Center v. Bonneville Power 
     Administration, 117 F.3d 1520 (9th Cir. 1997) . . . . .39,54
Penobscot Air Service v. FAA, 164 F.3d 713 (1st Cir. 1999) . . 32
Pillai v. Civil Aeronautics Board, 485 F.2d 1018 (D.C. Cir. 1973)47
Price Road Neighborhood Ass'n v. U.S. Depūt of Transportation,
     113 F.3d 1505 (9th Cir. 1997) . . . . . . . . . . . . . . 56
Public Citizens, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) 33,46
Ringsred v. Duluth, 828 F.2d 1305 (8th Cir. 1987)  . . . . . . 11
Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973) . . . . . . . . 54
Seattle Community Council Fed'n v. Federal Aviation Admin.,
     961 F.2d 829 (9th Cir. 1992)  . . . . . . . . . . . . . . 15
Sierra Club v. Morton, 405 U.S. 727 (1972) . . . . . . . . . . 38
Sierra Club v. U.S. Department of Transportation, 753 F.2d 120 
     (D.C. Cir. 1985)  . . . . . . . . . . . . . . . . . .5,11,60
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)38
Society Hill Towers Assoc. v. Rendell, 210 F.3d 168
      (3rd Cir. 2000) . . . . . . . . . . . . . . . . . . . . .56
Sugarloaf Assūn v. FERC, 959 F.2d 508 (4th Cir. 1992)  . . . . .7
Suncom Mobile & Data, Inc. v. FCC, 87 F.3d 1386 (D.C. Cir. 1996)39
Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994)  . 50
Town of Orangetown v. Gorsuch, 718 F.2d 29 (2d Cir. 1983), 
     cert. denied, 465 U.S. 1099 (1984)  . . . . . . . . . .32,55
United States v. AVX Corp., 962 F.2d 108 (1st Cir. 1992) . . . 37
United States v. 162.20 Acres of Land, 639 F.2d 299, (5th Cir.),
     cert. denied, 454 U.S. 828 (1981) . . . . . . . . . . . . .7
Valley Citizens for a Safe Enviornment v. Aldridge, 886 F.2d 458
     (1st Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 56
Vermont Yankee Nuclear Power Corp. v. Natural Resources
     Defense Council, Inc., 435 U.S. 519 (1978)  . . . . . . . .9
Vieux Carre v. Brown, 875 F.2d 453 (5th Cir. 1989) . . . . .11,46
Warth v. Seldin, 422 U.S. 490 (1975) . . . . . . . . . . . . . 38
West Houston Air Committee v. Federal Aviation Administration,
     784 F.2d 702 (5th Cir. 1986)  . . . . . . . . . . . 32,50,55
Whitmore v. Arkansas, 495 U.S. 149 (1990)  . . . . . . . . . . 37
Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 1172 (9th Cir. 1982)53

STATUTES, RULES AND REGULATIONS:

Administrative Procedure Act:
     5 U.S.C. 706(2)(A)  . . . . . . . . . . . . . . . . . . . 32
     5 U.S.C. 706(2)(D)  . . . . . . . . . . . . . . . . . . . 32

Airline Deregulation Act of 1978, Pub. L. No. 95-504,
     92 Stat. 170 . . . . . . . . . . . . . . . . . . . . . . .55

Department of Transportation Act:
     Section 4(f)  . . . . . . . . . . . . . . . . . . . . passim
     40 U.S.C. 303(c)  . . . . . . . . . . . . . . . . . . . . 12

Federal Aviation Act of 1958:
     49 U.S.C. 40104 . . . . . . . . . . . . . . . . . . . . . .3
     49 U.S.C. 41716 . . . . . . . . . . . . . . . . . . . . 6,24
     49 U.S.C. 44705 . . . . . . . . . . . . . . . . . . . . . .3
     49 U.S.C. 44709 . . . . . . . . . . . . . . . . . . . . . .4
     49 U.S.C. 46110 . . . . . . . . . . . . . . . . . . . . . 35
     49 U.S.C. 46110(a)  . . . . . . . . . . . . . . . . . 1,2,34
     49 U.S.C. 46110(c)  . . . . . . . . . . . . . . . . . . . 33

National Environmental Policy Act:
     42 U.S.C. 4332  . . . . . . . . . . . . . . . . . . . . . .9
     Section 102(2)(C), 42 U.S.C. 4332(2)(C) . . . . . . . . . .9

National Historic Preservation Act:
     16 U.S.C. 470(f)  . . . . . . . . . . . . . . . . . . . . .8
     16 U.S.C. 470i  . . . . . . . . . . . . . . . . . . . . . .8
     16 U.S.C. 470j  . . . . . . . . . . . . . . . . . . . . . .8

14 C.F.R. 119.49 . . . . . . . . . . . . . . . . . . . . . . . .4
14 C.F.R. 119.49(a)(1) . . . . . . . . . . . . . . . . . . . . .4
14 C.F.R. 119.49(a)(4) . . . . . . . . . . . . . . . . . . . . .4
14 C.F.R. 119.51(a)  . . . . . . . . . . . . . . . . . . . . . .4
14 C.F.R. 139  . . . . . . . . . . . . . . . . . . . . . . . . 17
14 C.F.R. 150.101  . . . . . . . . . . . . . . . . . . . . . . 15
23 C.F.R. 771.135(p)(5)(iii) . . . . . . . . . . . . . . . . . 19
36 C.F.R. 800  . . . . . . . . . . . . . . . . . . . . . . . . 23
36 C.F.R. 800.3  . . . . . . . . . . . . . . . . . . . . . .22,42
36 C.F.R. 800.3(a) . . . . . . . . . . . . . . . . . . . . . . .8
36 C.F.R. 800.3(a)(1)  . . . . . . . . . . . . . . . . . .8,22,42
36 C.F.R. 800.4  . . . . . . . . . . . . . . . . . . . . . . . .9
36 C.F.R. 800.4(a)(1)  . . . . . . . . . . . . . . . . . . . . 44
36 C.F.R. 800.5  . . . . . . . . . . . . . . . . . . . . . . . .9
36 C.F.R. 800.16(v)  . . . . . . . . . . . . . . . . . . . . . .8
36 C.F.R. 800.16(y)  . . . . . . . . . . . . . . . . . . . . . .8
40 C.F.R. 1500.4(p)  . . . . . . . . . . . . . . . . . . . .11,49
40 C.F.R. 1500.5(k)  . . . . . . . . . . . . . . . . . . . . . 11
40 C.F.R. 1507.3(a)  . . . . . . . . . . . . . . . . . . . . . 10
40 C.F.R. 1507.3(b)  . . . . . . . . . . . . . . . . . . . . . 10
40 C.F.R. 1506.3(b)(2)(ii) . . . . . . . . . . . . . . . . . . 49
40 C.F.R. 1508.4 . . . . . . . . . . . . . . . . . . . . 10,49,55
40 C.F.R. 1500-1517  . . . . . . . . . . . . . . . . . . . . . 10
45 Fed. Reg. 2244 (January 10, 1980) . . . . . . . . . . . . . 10
49 Fed. Reg. 28,501 (July 12, 1984)  . . . . . . . . . . . . . .9
64 Fed. Reg. 27044 (May 18, 1999)  . . . . . . . . . . . . . . 42
64 Fed. Reg. 27063 (May 18, 1999)  . . . . . . . . . . . . . . 42
65 Fed. Reg. 77698 . . . . . . . . . . . . . . . . . . . .9,10,42
65 Fed. Reg. 77700 . . . . . . . . . . . . . . . . . . . . . . 43
65 Fed. Reg. 77703 . . . . . . . . . . . . . . . . . . . . . . 42
65 Fed. Reg. 77718 . . . . . . . . . . . . . . . . . . . . .10,42
66 Fed. Reg. 10931 (Feb. 20, 2001) . . . . . . . . . . . . . . 24

This proceeding is a petition for review of an October 27, 2000, order of the Federal Aviation Administration (FAA), approving an amendment to the "operations specifications" of a commuter air carrier, Shuttle America Corporation. The approval, found at Appendix (App.) 313-317, allows Shuttle America to commence regularly scheduled commuter service between LaGuardia airport in New York City and the five other airports already served by Shuttle America, including the Laurence G. Hanscom Field (Hanscom) in Bedford, Massachusetts. A prior FAA order, dated September 1999, permitted Shuttle America to commence commercial service at Hanscom; this order was never challenged in federal court. Petitioners Save Our Heritage, et al. (SOH), claim that the FAA inadequately assessed the impact of commencing commercial service between LaGuardia and Hanscom on the historic properties surrounding Hanscom, pursuant to the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA) and the Department of Transportation Act.

On October 30, 2000, SOH filed a timely petition for review of the October 27, 2000, decision of the FAA. See 49 U.S.C. 46110(a). This Court's jurisdiction arises under 49 U.S.C. 46110(a). As explained more fully infra, SOH incorrectly asserts (Brief for Petitioners (Br.) at 4-5) that the Court also has jurisdiction over two decisions the FAA made in September, 1999, which permitted Shuttle America to initiate commercial air service at Hanscom with 50 seat propeller planes. SOH did not seek timely review of these orders, even though it was aware of and opposed to these decisions when rendered.

A. Challenges to FAA decisions are bound by the jurisdictional 60-day statute of limitations in 49 U.S.C. 46110(a). As a preliminary issue, the Court must decide whether SOH's petition is time-barred because it was filed over a year after the final agency action about which petitioners actually complain, to wit, the FAA's September 27, 1999, decisions permitting Shuttle America to commence service between Hanscom and the other airports which Shuttle America serves;

B. Whether SOH has failed to demonstrate standing to challenge the October 27, 2000, agency action, because they have not established injury-in- fact that is fairly traceable to that order and likely to be redressed by a favorable decision;

Assuming arguendo that the Court has jurisdiction, the following issues are presented by the petition:

C. Whether, pursuant to the NHPA, the FAA correctly found that its decision was not a type of action that has the potential to affect historic properties near Hanscom and therefore not subject to further review;

D. Whether the FAA complied with NEPA in concluding that the approval of the amendment to Shuttle America's OpSpecs was categorically excluded from further NEPA review;

E. Whether the FAA reasonably concluded that its approval of the Operations Specifications amendment would not "use" the neighboring historic properties under Section 4(f) of the Department of Transportation Act.

A. Statutory and Regulatory Background. --

1. Federal Aviation Act. -- The Federal Aviation Act of 1958, charges the FAA with encouraging the development of civil aeronautics and the safety of air commerce in the United States. 49 U.S.C. 40104. The FAA is required to issue operating certificates to airlines when it "finds, after investigation, that the person properly and adequately is equipped and able to operate safely under this part and regulations and standards prescribed under this part." 49 U.S.C. 44705. These certificates also specifies the terms, conditions and limitations necessary to ensure safety in air transportation, including

(1) * * * terms necessary to ensure safety in air transportation; and

(2) * * * the places to and from which, and the airways of the United States over which, a person may operate as an air carrier.

Also included in FAA certificates is a stipulation that the air carrier's operations must be conducted in accordance with the provisions and limitations specified in "operations specifications," or OpSpecs. See generally 14 C.F.R. 119.49. Implementing regulations accordingly specify that an air carrier's approved operations specifications must indicate, inter alia, "each regular and alternate airport to be used in scheduled operations" and that "[t]he certificate holder may not conduct any operation using any aircraft or airport not listed." 14 C.F.R 119.49(a)(4) and (1). An air carrier's operations specifications may be amended at the request of an operator or in the FAA's discretion if the FAA "determines that safety in air transportation or air commerce is affected and the public interest requires the amendment." 14 C.F.R. 119.51(a); 49 U.S.C. 44709.

OpSpecs amendments address many issues in addition to requests to add new destination cities to existing service. Consequently, the impact of an OpSpec approval can vary. OpSpec amendments may permit the initiation of a whole new class of service at an airport, e.g., allowing jet service at an airport which previously had been limited to quieter propeller aircraft (see Sierra Club v. U.S. Department of Transportation, 753 F.2d 120 (D.C. Cir. 1985)), or may approve airline requests to add planes, and air carrier mergers and/or acquisitions. OpSpec amendments also regularly address safety issues such as a change in particular aircraft used by an airline, a change to a carry-on baggage or exit row seating program, approving which sub-contractors will work on the aircraft, establishing who will be training the flight crew, establishing what type of navigation equipment is to be installed, and personnel changes. We understand that the FAA routinely approves over 5,000 OpSpec amendments yearly for large commercial air carriers alone.

In approving an air carrier's OpSpec, the FAA approves specific destinations and specific airplanes but does not have the authority to control the number of flights these planes may make between any of the air carrier's approved destinations within the constraints of safety. A small air carrier, like Shuttle America, which has had a fleet of up to six planes, may shift service between its destinations in keeping with its business objectives, and could choose, in theory, to provide frequent service only between two of its five approved airports.

This flexibility is in keeping with the Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705, which phased out forty years of government regulation of aviation rates, routes and services, to permit airlines to fly where passenger demand dictates and to charge fares based on market conditions. As a result of deregulation, at all but four airports in the United States there is no fixed regulatory limit on the number of flights an airline can offer, although the number of such flights at any given airport is, of course, limited by various factors such as weather, operational capacity of airports and airways, gate space and infrastructure at airports, staff and equipment available to the airline, safety and air traffic control requirements imposed by the FAA, economic viability of routes, and competition from other carriers.

On April 5, 2000, Congress further limited the federal government's control over one of the four airports where there is a limit on flight operations. The Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR-21), 49 U.S.C. 41716, requires the Department of Transportation (DOT) to provide access to LaGuardia Airport, to enable "any air carrier to provide nonstop air transportation, using an aircraft with a certified maximum seating capacity of less than 71, between LaGuardia * * * and a small hub airport or nonhub airport[.]" Id. This statute created more "slots" at LaGuardia airport for commercial airlines which are new entrants. [FN 1] This nondiscretionary requirement (the Secretary of Transportation "shall grant, by order [slot] exemptions * * *" (id., emphasis added)) means that the Secretary can not refuse requests by conforming airlines for slot exemptions at LaGuardia. [FN 2] Accordingly, on April 14, 2000, the DOT, by blanket order, granted all applications of airlines that met AIR-21 requirements to provide service into and out of LaGuardia. App. 165-8.[FN 3] On May 30, 2000, Shuttle America applied for and was granted 14 slot exemptions. App. 338. This decision was not challenged in court.

[FN 1] Slots are the authority to conduct one operation (either a landing or takeoff) each day during a specific hour or 30 minute period. AIR-21 provides that slot restrictions at LaGuardia will be eliminated after January 1, 2007. App. 165-8.

[FN 2] See American Airlines, Inc. v. Department of Transportation, 202 F.3d 788, 803 (5th Cir.), cert. denied, 530 U.S. 1274 (2000); Sugarloaf Assūn v. FERC, 959 F.2d 508, 513 (4th cir. 1992).

[FN 3] The City of New York petitioned for review of this decision, claiming that the DOT was required to comply with NEPA prior to issuing the slot exemptions; the DOT responded that the mandate and short deadline of AIR-21 left the agency with no discretion to comply with NEPA. City of New York v. Slater, 2nd Circuit No. 00-4124. This proceeding has been briefed and argued and awaits decision.

[FN 4] The Advisory Council is an independent federal agency whose composition is listed at 16 U.S.C. 470i, and includes the chair of the National Trust for Historic Preservation. The Council's duties are prescribed in the NHPA, 16 U.S.C. 470j. The State Historic Preservation Officer (SHPO) coordinates state participation in the implementation of the NHPA. 36 C.F.R. 800.16(v). In Massachusetts the SHPO is the Director of the Massachusetts Heritage Council.

[FN 5] This definition states that "undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those * * * requiring a Federal permit, license or approval * * *."

[FN 6] Order 1050.1D is the primary FAA order implementing NEPA, which was published in the Federal Register, subjected to public comment, and approved by the Council on Environmental Quality. See 49 Fed. Reg. 28,501 (July 12, 1984).

Pursuant to NEPA implementing regulations promulgated by the Council on Environmental Quality (CEQ), [FN 7] federal agencies may exclude from NEPA review "categor(ies) of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations * * * and for which, therefore, neither an environmental assessment [EA] nor an environmental impact statement is required." 40 C.F.R. 1508.4. An agency's list of categorical exclusions must be published in the Federal Register, subjected to public comment, and submitted for review by the CEQ. 40 C.F.R. 1507.3(a), (b). In addition, the agency's procedures regarding categorical exclusions "shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect," thus requiring an EA or EIS. 40 C.F.R. 1508.4.

[FN 7] The CEQ is an agency created by NEPA to promulgate regulations applicable to federal agencies in their compliance with NEPA. See 40 C.F.R. 1500-1517.

[FN 8] Actions which trigger NHPA Section 106 are essentially "coterminous" with proposed federal actions that require environmental assessment under NEPA. See Vieux Carre v. Brown, 875 F.2d 453, 464-65 (5th Cir. 1989), cert. denied 493 U.S. 1020 (1990), Ringsred v. Duluth, 828 F.2d 1305, 1309 (8th Cir. 1987).

4. Department of Transportation Act. -- Section 4(f) of the Transportation Act, 49 U.S.C. 303(c), provides, in relevant part, that the DOT may approve a transportation project which requires the use of one of enumerated Section 4(f) properties (park, historic site, recreational area or wildlife refuge) only if (1) there is no "prudent or feasible alternative" and (2) the project includes "all possible planning to minimize harm" to the Section 4(f) resources. 49 U.S.C. 303(c). No "use" of protected lands, including historic sites, occurs under Section 4(f), either directly or indirectly through, e.g., noise, "where an action will have only an insignificant effect on the existing use of protected lands." Allison v. Department of Transportation, 908 F.2d 1024, 1028 (D.C. Cir. 1990).

B. Statement of Facts. --

1. Hanscom and the Surrounding Community. -- Hanscom is located 15 miles northwest of Boston, predominantly in Bedford, Massachusetts, but extending at points into the neighboring towns of Lincoln, Concord and Lexington. Hanscom is owned and operated by the Massachusetts Port Authority (Massport). Hanscom has operated as a primarily public, general aviation (i.e. non-commercial) airport since the mid-1970's, and has, intermittently, provided regularly scheduled commercial passenger flights. [FN 9] Supp.App. 243-5.

[FN 9] Several airlines have unsuccessfully attempted commuter service at various times in the last two decades. Supplemental Appendix (Supp.App.) 253.

[FN 10] These regulations require a state authority such as Massport to submit for public review a report on the environmental impacts of its operations. The 1995 document, actually completed in 1997, updated the first GEIR in 1988, and the airportūs 1978 Master Plan . Supp.App. 41. Massport has initiated a process to update the GEIR. App. 309-10.

[FN 11] See Supp.App. 103-04 for distinctions between different sound measuring units.

[FN 12] In point of fact, this noise level is for a DASH 8-314, a heavier plane than those in Shuttle America's fleet, and was used as a conservative estimate. Supp.App. 7.

[FN 13] Ldn, or DNL, stands for Day-Night Sound Level, which is the standard federal noise measurement methodology. DNL measures the cumulative noise exposure in decibels for a given area over a 24-hour period, and noises occurring between 10 p.m. and 7 a.m. are weighted by an additional 10 decibels. See Seattle Community Council Fed'n v. FAA, 961 F.2d 829, 831 n.1 (9th Cir. 1992). Long term airport noise exposure is assessed using the yearly average DNL, expressed in decibels. Under FAA guidelines, all land uses are compatible with noise levels below 65 DNL. See 14 C.F.R. 150.101, Table A.

As the maps also indicate, historic areas close to the airport, including Minute Man National Historic Park (MMNHP) and Walden Pond, lie largely outside of the 55 DNL contour line, although a portion of MMNHP falls within the 55 and 60, and is nicked by the 65 contour line. Supp.App. 141 (enlarged version attached in Addendum). These lines are the same both using the 1995 actual data and assuming the three percent growth. Supp.App. 305 (Addendum). The noise projections at specific points in these areas are listed on the attached table, with the noise at the MMNHP visitor center calculated to be 52 db. Supp.Spp. 443. Thus, even assuming three percent growth at Hanscom, the 65 DNL contour remains almost entirely on the airport, and these historic sites remain largely outside that contour.

The FAA subsequently confirmed that the GEIR's predictions of growth were accurate. First, the FAA confirmed that the GEIR accurately predicted growth at Hansom as of 1999, noting that actual number of operations at Hanscom in that year, 197,302 is "extremely close to the numbers of operations estimated (198,000) in the GEIR's analysis of growth at a moderate growth rate in 1999." App. 243. The actual figures for 1999 thus break down to 540 takeoffs and landings daily, of which Shuttle America flew a daily average of 12 in the slightly more than two months it was providing service that year. The FAA also performed additional analysis of surface traffic by comparing facts and analyses in the 1995 GEIR and a 2000 Traffic Impact Study prepared for the U.S. Air Force. Supp.App. 468; App. 208. Again, the FAA confirmed that the actual counts in the Air Force study validated the GEIR's estimates for peak hours in the year 2000 one percent growth scenario, as the figures were "remarkably close." Id. Thus, the FAA confirmed the reliability of the GEIR's projections as to growth and impact of air and surface traffic as of 2000.

2. The History of Shuttle America's Operations at Hanscom. -- Shuttle America is a small air carrier with a fleet of six, 50-seat turboprop aircraft. Prior to the decision on review, Shuttle America provided regular commuter service between Buffalo, New York; Greensboro, North Carolina; Trenton, New Jersey, Windsor Locks, Connecticut; and Hanscom.

In August, 1999, Massport applied for an Airport Operating Certificate for Hanscom pursuant to 14 C.F.R. Part 139. This certificate would allow Hanscom to accept flights of planes with up to 60 seats, up from 30-seat planes. All four towns which are Petitioners in this case brought a state court action against Massport in which they unsuccessfully sought to enjoin Massport's application. Relying on the 1995 update to the GEIR, the court found that there was no environmental harm under state law attributable to the initial level of Shuttle America operations at Hanscom. [FN 14] September 27, 1999, the FAA granted the Part 139 approval sought by Massport. No party challenged the FAA's approval of Massport's Part 139 certificate in federal court.

[FN 14] Hanscom Area Towns Committee, et al., v. Massachusetts Port Authority, Sup. Crt. Civ. Action No. 99-04461-F.

Using Shuttle America's projection of four flights daily (eight operations), [FN 15] conducted an environmental review of Shuttle America's 1999 application, pursuant to FAA Order 1050.1D. The FAA used then-current air traffic operational data to verify the accuracy of the portions of the GEIR that the FAA relied on, and conducted its own noise and air quality analysis specific to Shuttle America's proposal. App. 205-207.

[FN 15] A "flight" represents both an arrival and a departure while an "operation" is either an arrival or a departure. Thus one flight is equal to two operations.

[FN 16] A longstanding analytical tool, this AEM method was endorsed in 1992 by the Federal Interagency Committee on Noise, which included the U.S. Environmental Protection Agency and the Advisory Council. Supp.App. 16.

[FN 17] This analysis is more conservative than had the FAA used 1999 annualized traffic figures as its baseline, because the Shuttle America flights represented a larger percentage increase from the smaller 1995 baseline than from the larger 1999 baseline.

The FAA specifically considered the potential impact of initiation of Shuttle America service at Hanscom on MMNHP and found:

Although Shuttle America's [planes] will be capable of landing on any runway, the airline will predominately use runway 11-29. This would be due to the general predominant use of the runway and the availability of lateral and vertical navigation guidance in the form of Instrument Landing Systems * * * at either end. This fact would tend to keep any noise generated aligned with the runway and its associated approach and departure paths and well away from the MNHP, which lies generally in excess of a mile to the south. The North Bridge Unit MNHP, although closer to the extended centerline of runway 11-29 than the Battle Road area, lies nearly three miles to the west of the airport and should not experience any intrusive noise levels.

FAA accordingly determined that the proposed service would "not significantly change the operating environment of the airport." App. 127. On September 27, 1999, FAA concluded that de miminis impacts of the proposed operation qualified for a categorical exclusion under NEPA and accordingly approved Shuttle America's operation specification amendment to allow service at Hanscom. App. 127-128. On September 28, 1999, Shuttle America commenced service between Hanscom, Buffalo and Trenton.

Again, no party challenged in court the 1999 amendment of Shuttle America's operating certificate. Within 30 days of the September 27, 1999 approval of Shuttle America's OpSpecs, Save Our Heritage, lead petitioner in this proceeding, filed a petition with the DOT and the FAA for revocation, modification, reconsideration and rehearing of the order. Supp.App. 552. This petition was denied and Save Our Heritage did not pursue the matter further. No party, including SOH, sought to challenge in federal court the September 1999 OpSpec approval permitting Shuttle America to operate at Hanscom.

By letter dated April 3, 2000 (App. 140), the Advisory Council asked the FAA to confirm that it had determined that there was no potential for the FAA's 1999 decision to permit Shuttle America to initiate service at Hanscom to cause effects on historic property under 36 CFR 800.3, and to state the basis for its finding. The Council expressed concern that the FAA misinterpreted the initial step in the Section 106 process, and that, "[o]n the face of it, it appears to us that amending an airline's operating specifications is indeed a type of activity that could cause effects to historic properties because of the resulting increased level of service at an airport." App. 141. The FAA responded at length on Aug. 15, 2000 (App. 198-201), describing its detailed traffic analysis, and explaining that amending the airline's OpSpec was categorically excluded from NEPA, because, inter alia, the action's ability to affect historic properties was de minimis, and that this determination also satisfied the requirements of Section 106, and 36 C.F.R. 800.3(a)(1). App. 200.

The FAA and the Council subsequently met and discussed the FAA's compliance with Section 106. App. 204. The Council advised the FAA that it considered any amendment to an OpSpecs to be an "undertaking" and a "type of activity that has the potential to cause effects on historic properties" -- in other words, although the regulations leave that determination to the action agency, the Council interpreted them to require that all OpSpec amendments per se be subject to consultation and review pursuant to 36 C.F.R. 800. App. 204.

While not conceding that point (App. 199-200), the FAA decided that it was "prudent to proceed to consult" with the SHPO, for purposes of the Shuttle American application for approval of its OpSpec amendment to commence service to LaGuardia, as next described. App. 204.

3. The FAA's Environmental Assessment of Shuttle America's Application to Initiate Service to LaGuardia, and the Decision on Review. -- In May 2000, having requested slot exemptions to provide service between LaGuardia and Hanscom (App. 155), Shuttle America also requested approval of an OpSpec amendment to initiate service to LaGuardia. App. 150-154.

Upon receipt of the application, the FAA considered the impacts of the decision on the affected airport, LaGuardia. App. 172-91. The FAA also performed a safety and environmental analysis of the potential impacts on Hanscom of the proposed new service at a level of up to 20 additional flights (40 operations) daily. App. 204. [FN 18]

[FN 18] Shuttle America anticipated a total of 17 flights per day between Hanscom and Shuttle America's other approved destinations, with the potential to grow to 20 flights, as Shuttle America anticipated flying 7-10 flights daily between Hanscom and LaGuardia. App.-338. Pursuant to AIR-21, 49 U.S.C. 41716, Shuttle America applied for and received from the DOT authority to use up to 14 slots into LaGuardia, and cannot fly more than seven roundtrips daily to LaGuardia unless it is able to secure more slots or slot exemptions.

[FN 19] The portion of the contour that changes, and newly extends off airport is in Bedford, northeast of the airport, north of the end of Runway 29, in the Fayette Road/South Road area, not in the vicinity of MMNHP. Supp. App. 305, Addendum.

The FAA also performed additional, action-specific analysis of surface traffic and compared facts and analyses contained in the 1995 GEIR, current Massachusetts Highway Department Traffic Volume Counts for Route 2A (Supp.App. 581) and a Traffic Impact Study completed for the Air Force in February 2000. App. 208-9. This Study took actual traffic counts at 24 road intersections in and around the Hanscom Air Force Base area in 1999, including intersections about which SOH has expressed concern. Supp.App. 468. When these actual count figures are compared to those that were estimated in the GEIR for peak hours for the year 2000 moderate (one percent) Growth Scenario, they are "remarkably close." App. 208. With respect to Route 2A, the artery running through MMNHP, the FAA found that any increase in car traffic during peak hours would be, conservatively, only 70 cars over the existing peak hour rate of 2,655 cars, and would not have the potential to cause any cognizable effects at MMNHP. App. 208-9. In its analysis, the FAA assumed that a 50- seat flight would have a conservative load factor of 70 percent, and therefore be met by 35 cars, such that each flight generates a total of 70 vehicle trips. [FN 20] Based on FAAūs evaluation of the issues discussed below and consideration of comments from interested parties, the FAA determined that Shuttle America's plan to add 7-10 flights a day to Hanscom would not affect historic properties or landmarks protected by Section 106 of the NHPA.

[FN 20] SOH's assumption (Br. 14; 36, n. 5) of a 100 percent load factor is unrealistic, and not used in FAA projections; 50 percent is the more commonly used projection of load factor. The GEIR used a load factor of 40 to 50 percent in their estimates), noting that 40 percent is the typical regional break-even load factor. Supp.App. 253-6.

Because parking at Hanscom is free and convenient, most passengers are assumed to drive themselves directly to the plane and leave their cars there. To be conservative, the FAA added 20 percent to the load factor to account for those passengers who would be driven to the plane. Accordingly, if each plane has 50 seats, a 70 percent load would be 35 passengers who, because of the 20 percent margin, could all conservatively be assumed to drive themselves to the airport. One flight was thus assumed to generate 70 auto trips (35 in and 35 out). App. 208.

The SHPO stated that the FAA's environmental review did not "meet the documentation standards" under the Section 106 regulations and that the SHPO could not concur with the FAA's determination that no historic properties would be affected by Shuttle America's proposal. App. 264. Among other things, the SHPO directed the FAA to undertake a cultural resource survey to determine whether there are any significant historic properties not yet included in the Inventory of Historic and Archaeological Assets of the Commonwealth. Id.

Subsequent correspondence from the Council (App. 297, 299) urged the FAA to take further steps to address "the potential effects of expanded commercial air traffic on [MMNHP] and other important historical properties." App. 297. On October 27, 2000, the FAA responded, noting that these recent letters "appear less concerned about dealing with the facts of Shuttle America's proposed operation and more about the intentions of Massport's long-term development plans for Hanscom Field." App. 309. The FAA expressed its continued willingness to cooperate with the Council and other interested parties, and to work with a multi-modal working group of federal and state entities to address issues of growth at Hanscom. App. 310. However, the FAA stated that "it is hard to see adding 14-20 scheduled operations a day * * * from Hanscom Field having any potential to affect historical resources * * *." App. 309. Accordingly, the FAA indicated that it would approve Shuttle America's OpSpec amendment without further delay, and did so on October 27, 2000. App. 313-17. The FAA also determined (App. 72-3) that the 2000 OpSpec amendment was categorically excluded from further NEPA review.

C. Judicial Proceedings and Current Status. --

Petitioners filed their petition for review on November 2, 2000, seeking to set aside the October 27, 2000, approval, and simultaneously moved for a stay pending review seeking to halt Shuttle America's operations. Shuttle America and Massport intervened. On November 27, 2000, a panel of this Court denied the stay on the basis that petitioners had failed to demonstrate a risk of irreparable harm to historic properties during the pendency of the appeal. The panel referred to the merits panel the argument that the petition for review was untimely and should be dismissed for lack of jurisdiction.

The Departments of Transportation and the Interior, and the Advisory Council have subsequently entered into a Memorandum of Understanding to promote, consistent with applicable law, the protection and preservation of MMNHP and other historic sites from impacts due to current and future transportation growth. Addendum.

At the time of filing of this brief, Shuttle America is flying only one round trip flight (two operations) between Hanscom and LaGuardia daily. Including its other destination cities, Shuttle America currently operates an average of four flights daily at Hanscom. Shuttle America has also filed for bankruptcy protection.