This is a case where neighbors of an airport seek to protect significant local historic resources from incremental degradation caused, directly or indirectly, by increasing growth in air traffic at Hanscom. Because the FAA has no analogous authority to approve the operating specifications of the vast majority of the air traffic at Hanscom -- general aviation and, to a lesser extent, military aviation -- petitioners instead focus upon the FAA's decisions permitting reinitiation of commercial service at Hansom and urge this Court to require greater federal participation in environmental review and regulation. However, the specific order on review, the October 2000 approval of Shuttle America's OpSpecs adding LaGuardia airport to its destination cities, does not, in fact, cause the incremental impact about which Hanscomþs neighbors are concerned; any harm to the petitioners is a result of the 1999 decision allowing Shuttle America to fly out of Hanscom. As a result, reversing the 2000 order would not provide the relief sought by SOH.

Indeed, this Court lacks jurisdiction to hear this case because SOH did not timely challenge the 1999 order. Having received the 1999 OpSpec approval that permitted Shuttle America to begin commercial operations at Hanscom, Shuttle America may shift its flights between the various cities it services as demand warrants, without further FAA action. By merely adding a new destination to Shuttle Americaþs network, the 2000 decision did not change the number of flights Shuttle America may operate at Hanscom. The number of flights is limited by passenger demand and the size of Shuttle Americaþs fleet. Thus, not only did SOH fail to challenge the appropriate order, their requested relief of remand to the agency of the 2000 order would not redress their alleged harms. For these reasons, SOH is both out of time and lacks standing.

Moreover, the change in air traffic attendant upon the initiation of flights to LaGuardia is truly insignificant. The FAA's AEM modeling indicated that the noise change would be less than one percent, well below the 17 percent increase which indicates a potentially significant noise increase. The FAA also confirmed the existing noise maps in the GEIR as accurate and concluded that the noise measurement modeling they represent shows insignificant changes. The FAA reviewed surface traffic predictions and traffic statistics and determined that the change in traffic would be less than six percent at peak hours. The FAA reasonably concluded that, given these insignificant changes, no additional environmental analysis was required under the NHPA and that the 2000 decision was similarly categorically excluded from further NEPA review.

Finally, the FAA need not have conducted further analysis under Section 4(f) of the Transportation Act. A transportation project uses a protected 4(f) property (in this case, historic properties including MMNHP) only when it substantially impairs the value of the site in terms of its prior significance and enjoyment. Given the de minimis impact attendant upon flights between Hanscom and LaGuardia, no Section 4(f) could be possible.

Judicial review of NEPA and NHPA compliance is limited in scope. Review is principally governed by the Administrative Procedure Act (APA), which provides that agency action shall be set aside only if undertaken "without observance of procedure required by law," or if þarbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.þ 5 U.S.C. 706(2)(A), (2)(D). Communities Inc. v. Busey, 956 F.2d at 623; Penobscot Air Services v. FAA, 164 F.3d 713, 719 (1st Cir. 1999); Baltimore Gas & Electric v. Natural Resources Defense Council, 462 U.S. 87, 97-98 (1983) (citations omitted); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 573 (9th Cir. 1998).

An agency's decision to proceed under a categorical exclusion is also subject to review under the arbitrary and capricious standard. See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 (9th Cir. 1996); accord, West Houston Air Committee v. Federal Aviation Administration, 784 F.2d 702, 704 (5th Cir. 1986); City of Alexandria v. Federal Highway Admin., 756 F.2d 1014, 1016-1017 (4th Cir. 1985). Because a categorical exclusion by definition has been predetermined not to involve significant impacts absent extraordinary circumstances, no "hard look" test or other more searching review is required. See National Trust for Historic Preservation v. Dole, 828 F.2d 776, 781 (D.C. Cir. 1987). The issue of whether a particular agencyþs action will have a "significant" effect on the environment is a substantive issue which has traditionally been left to the informed discretion of the agency. Town of Orangetown v. Gorsuch, 718 F.2d 29, 34 (2d Cir. 1983), cert. denied, 465 U.S. 1099 (1984).

Agency decisions under the Transportation Act are reviewable under the same arbitrary and capricious standard. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-417 (1971). "To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416. Communities, Inc., 956 F.2d at 623-25. The Section 4(f) standard of review is "searching but deferential." Eagle Foundation v. Dole, 813 F.2d 798, 803 (7th Cir. 1987). Thus, review under Section 4(f) does not rise to a substantial evidence test, and the agencyþs decision is entitled to a presumption of regularity. Id. at 415.

Petitioners err in urging (Br. 20) this Court to substitute for the "arbitrary and capricious" standard of review their preferred "substantial evidence." While true that, pursuant to 49 U.S.C. 46110(c), the agency's "[f]indings of fact * * * if supported by substantial evidence, are conclusive," courts apply this standard only to the actual factual findings, as distinct from the agency's exercise of judgment and its conclusions on nonfactual matters. Advanced Micro Devices v. Civil Aeronautics Bd., 742 F.2d 1520, 1527 (D.C. Cir. 1984). Public Citizen, Inc. v. FAA, 988 F.2d 186, 196-197 (D.C. Cir. 1993).

In this proceeding, SOH purports to challenge the FAA's October 2000 decision, but, in fact, its claimed harm is attributable to the FAA's September 1999 decisions. The October 2000 decision simply did not cause the harms SOH seeks to redress. Because SOH did not bring a timely challenge to the 1999 decision, SOH cannot now bootstrap its complaints as to the 1999 decision onto its timely challenge to the October 2000 decision.

49 U.S.C. 46110(a) requires that a petition seeking review of an FAA order be filed within sixty days after entry of the order. This is a jurisdictional statute of limitations, and Courts must dismiss petitions brought pursuant to that provision after the sixty days have elapsed. National Air Transportation Ass'n v. McArtor, 866 F.2d 483, 485 (D.C. Cir. 1989); Northbrook Excess & Surplus Ins. Co. v. Medical Malpractice Joint Underwriting Ass'n, 900 F.2d 476, 478 (1st Cir. 1990); see also Casas Office Machs., Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 674 (1st Cir. 1994)).[FN 21]

[FN 21] While courts may extend the deadline, they may do so "only if there are reasonable grounds for not filing by the 60th day." 49 U.S.C. 46110(a). This provision is inapplicable here, where (1) SOH has not requested any extension; (2) SOH was fully aware of and opposed the September 1999 decisions; and (3) the instant petition was filed over a year after the 1999 decisions issued.

SOH does not claim that the October 2000 order initiated commercial service, or that that order will result in an increase in service that otherwise could not occur without the addition of LaGuardia as a destination for Shuttle America. Since SOH did not petition for review of the 1999 orders within the statutory, 60-day time limit at 49 U.S.C. 46110, these prior FAA decisions are not now before the Court. As noted, SOH was aware of these decisions and their import, even pursuing a state court challenge. That SOH chose not to challenge these decisions in federal court bars its belated efforts to seek to reverse them now.

SOH attempts to overcome its failure to timely pursue a federal challenge by arguing that the FAA failed to consider these cumulative effects of its actions. SOH's contentions are similar to those raised by the plaintiffs in C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569 (11th Cir. 1988). The plaintiffs in C.A.R.E. Now, a group of homeowner associations and neighborhood groups, opposed a proposal to extend a runway at Atlanta's airport. See id. at 1570. Their NEPA claim faulted the FAA, which provided funding for the project, for failing to consider how the overall expansion at Atlanta's airport had increased jet traffic. See id. at 1574. The Eleventh Circuit held that the FAA acted appropriately in not evaluating these effects in its Environmental Assessment of the runway extension, because the specific project at issue -- the runway extension -- would not have any effect on the level of plane traffic. See id. at 1574-75.

The same reasoning applies here. SOH's asserted cumulative impacts involve alleged effects of Shuttle America's service at Hanscom that will not be altered by Shuttle America's service to LaGuardia. See also Fritiofson v. Alexander, 772 F.2d 1225, 1245 n.15 (5th Cir. 1985) ("The regulations require * * * that other actions and their probable impacts be identified and considered in determining whether the impacts from the specific proposal before the agency may be significant." (emphasis added)). Because SOH's alleged "cumulative impacts" are not attributable to the LaGuardia service, they need not have been considered by the FAA in approving the September 2000 OpSpecs amendment.

This Court should dismiss this appeal for the additional reason that SOH has no standing. The standing doctrine "serves to identify those disputes which are appropriately resolved through the judicial process." Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Standing is a threshold jurisdictional question, "determining the power of a court to entertain a suit." United States v. AVX Corp, 962 F.2d 108, 113-24 (1st Cir. 1992).

1. Standing Requirements. -- In Lujan v. Defenders of Wildlife, 504 U.S. 555, 556 (1992) the Supreme Court reiterated the "irreducible minimum," that parties seeking to invoke a federal court's jurisdiction must establish. Complainants must show that: (1) they have suffered an "injury in fact" -- an "invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual and imminent,' not 'conjectural' or 'hypothetical;'" (2) their injury is fairly traceable to the challenged action of the defendant, and not the result of the "independent action of some third party not before the court," id. (quoting Simon v.Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976)); and (3) it is "'likely' as opposed to merely 'speculative,' that the injury will be redressed by a favorable decision," Defenders, 504 U.S. at 561.[FN 22]

[FN 22] Where an organization brings suit it must also satisfy the requirements of organization standing. See Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333, 343 (1977). SOH has provided no evidence of standing including the elements of organizational standing.

This burden to "clearly allege facts demonstrating that [a plaintiff] is a proper party to invoke judicial resolution of the dispute and the exercise of the courtþs remedial powers," Warth, 422 U.S. at 490, likewise extends to litigation, such as this, which begins with the filing of a petition for review in a court of appeals. See, e.g., Northwest Environmental Defense Center v. Bonneville Power Administration, 117 F.3d 1520, 1528 (9th Cir. 1997); Suncom Mobile & Data, Inc. v. FCC, 87 F.3d 1386, 1387-1488 (D.C. Cir. 1996).

2. SOH has Failed to Demonstrate Adequately Injury-in-Fact. -- In their pleadings before this Court and their submissions to the FAA, SOH has failed to meet its burden by providing adequate factual substantiation of their standing and claim of injury. Specifically, SOH has not shown injury-in-fact, either to historic properties or to any of SOH's unidentified members who might use the Park. SOH has not identified any members who use the historic areas allegedly affected by the FAA's decisions, nor shown how they would be affected. SOH has not shown that the parks will be affected. While SOH speculates as to the effect of Shuttle America's flights between LaGuardia and Hanscom on traffic and noise, it does not refute the record evidence which shows that initiating flights to LaGuardia will have a negligible impact at Hanscom. "It is the reality of the threat of [impending] injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions." Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983); Adams v. Watson, 10 F.3d 915, 922-23 (1st Cir. 1993). See also Florida Audubon Society v. Bentsen, 94 F.3d 658, 666 (D.C. Cir. 1996) (en banc).

Although SOH claims procedural harms from the FAA's alleged failure to comply with the requirements of Section 106, NEPA and Section 4(f), SOH must also demonstrate an actual or imminent -- and non-conjectural -- injury. SOH fears generally that unlimited growth, burgeoning traffic and noise problems, will necessarily stem from the FAA's approval. SOH does not, however, describe any actual impacts to historic resources that are reasonably likely to occur as a result of the FAA's October 2000 decision.

3. SOH has Not Demonstrated Traceability or Redressibility. -- Moreover, as described above, SOH has failed to show that their claimed injury is "fairly traceable" to the October 2000 order on review, and therefore cannot show that their alleged injury is redressable by the relief sought: reversing the FAA's October 2000 decision and remanding for further NHPA, NEPA and Section 4(f) compliance. Br. 49.

The FAA's 1999 action approving the OpSpec amendment allowed the resumption of commercial aviation at Hanscom and permitted Shuttle America to initiate service at Hanscom without dictating the number of flights Shuttle America could fly from Hanscom, as demand warrants and its fleet size permits. For example, Shuttle America has already reduced its service to one flight daily between Hanscom and LaGuardia. Vacating the October 27, 2000, order would not prevent Shuttle America from increasing its service at Hanscom to its other, already approved destinations in response to demand. In sum, because the requested relief would not preclude the harm complained of, SOH has failed to demonstrate the redressability prong of standing, as well as the injury prong, and its petition should be dismissed.

SOH claims (Br. 17; 21-31) that the FAA violated Section 106 by halting consultation when the SHPO refused to concur that the FAA's action had no potential to affect historic properties. However, the FAA was not obliged to continue its voluntary consultation with the SHPO, having concluded that the 2000 decision was not an undertaking with the potential to cause effect to historic properties. Given the negligible impacts attributable to flights between Hanscom and LaGuardia, the FAA properly determined that this action did not require further NHPA review.

1. Section 106 Regulatory Requirements. -- As a threshold matter, if an action "does not have the potential to cause effects on historic properties, the Agency official has no further obligations under section 106 or this part." 36 C.F.R. 800.3(a)(1). As the Council explained in the preamble to this regulation "[I]f there is an undertaking, but there is no potential that the undertaking will have an effect on an historic property, then the agency is finished with its section 106 obligations. There is no consultation requirement for this decision." 64 Fed. Reg. 27044, 27063 (May 18, 1999).

The Advisory Council's regulations provide that it is the action agency, the FAA, which determines whether its action has the potential to cause effects. "The Council may render advice on the existence of an undertaking, but ultimately this remains a Federal agency decision." 64 Fed. Reg. 27,063 (May 18, 1999); see also revised 106 regulations at 65 Fed. Reg. 77,718 (Dec. 12, 2000) Thus, the determination of what is an undertaking with the potential to cause effect is delegated to the judgment of the action agency. [FN 23]

[FN 23] 36 C.F.R. 800.3(a)(1) has since been revised to require that the action agency determine whether the undertaking is a "type of activity that [has] the potential to cause effects on historic properties." 65 Fed. Reg. 77698, 77703 (December 12, 2000)(effective date January 11, 2001). At the time of the October 2000 decision, however, only Section 800.3(a) used this categorizing language in describing generally the process of "Establish[ing an] Undertaking." The first specific step in that process as stated in Section 800.3(a)(1) was to determine if the undertaking itself has a þpotential to cause effectsþ on historic properties. See preamble at 64 Fed. Reg. at 27063: If "there is no potential that the undertaking will have an effect on an historic property, then the agency is finished with its section 106 obligations." The Advisory Council changed this regulation because the 1999 language "implied that making such a determination related to the circumstances of the particular undertaking, rather than the more generic analysis of whether the type of undertaking had the potential to affect historic properties." 65 Fed. Reg. at 77700.

[FN 24] See, e.g., Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 117 (9th Cir. 1980), cert. denied, 450 U.S. 965 (1991).

[FN 25] The APE is the area "within which the undertaking may cause changes in the character or use of historic properties * * *." 36 C.F.R. 800.4(a)(1). Here, the FAA defined the APE as the area surrounding Hanscom, principally MMNHP and State Route 2A which passes through MMNHP. App. 206.

[FN 26] SOH faults the FAA for analyzing only peak hour traffic. Br. 35-36. Peak hour traffic is the appropriate concern, however, as the GEIR indicates that traffic at the other hours of the day are at an acceptable level. Supp.App. 149, 369-374. Section 5.4 of the GEIR indicates that Route 2A is congested and that future growth may require changes to intersections along Battle Road to mitigate the congestion. Since several of these intersections are within MMNHP, historic resources may be affected. The FAA appropriately assessed the contribution of Shuttle America's new service to congestion in order to determine whether any increased congestion would require alterations to Battle Road, the concern expressed by commenters (including the National Park Service) in the record. App. 228; Br. 35. The FAA and the National Park Service have agreed to work cooperatively to promote the long-term protection of historic resources in the vicinity of Hanscom from adverse transportation impacts.

Finally, as described supra, the FAA conducted its own AEM noise modeling analysis and found that the change in the noise area was less than 1 percent, nowhere near the 17 percent deemed to be the threshold of significance requiring further environmental review. App. 222.

Actions with such de minimis impacts as may be attributed to the October 27, 2000, action are not subject to full Section 106 consultation. See, e.g., Vieux Carre v. Brown, 875 F.2d 453, 464-65 (5th Cir. 1989) ("Congress clearly did not intend to require the Corps to subject * * * inconsequential projects to the procedural complexities of section 470f."); Morongo Band, 161 F.3d at 577-579. Moreover, the FAA's predictions of use of air and surface traffic are entitled to "'the utmost deference in view of administrative expertise.'" Public Citizen, 988 F.2d at 196-197, quoting Pillai v. Civil Aeronautics Board, 485 F.2d 1018, 1027 (D.C. Cir. 1973). Accord, City of Los Angeles v. FAA, 138 F.3d 806, 807, n.2 (9th Cir. 1998). SOH argues, however (Br. 24-26), that the SHPO did not concur in the finding of no effect and that the SHPO had requested but not received project- specific studies of the potential noise and traffic associated with expanded service, and a cultural resource survey of possible historic properties within the area of potential effect. In fact, however, as demonstrated (App. 222, 242, 204), the aircraft noise and air quality studies FAA relied on were project-specific. FAA analyzed the actual traffic counts in the 2000 Air Force traffic study, which confirmed that traffic impacts projected in the 1995 GEIR moderate aviation growth scenario would be similar to the Shuttle America proposal and indicated insignificant impact due to such a small action. Where, as here, FAAþs conclusion that there is no potential for effect is based upon "the fact that the noise and other studies show that there would be no impact on any type of property in the project area," the FAA cannot be faulted for not conducting a cultural resources survey to identify any other as yet unidentified properties. Morongo Band, 161 F.3d at 582.

The district court cases SOH cites (Br. 28-30) are inapposite. In National Trust for Historic Preservation v. U.S. Army Corps of Engineers, 552 F. Supp. 784 (S.D. Ohio 1982), the action at issue was a construction permit for a barge loading facility adjacent to a historic site. There, the action agency did not conclude that the action had no potential to cause effect but found that it was likely to have an adverse effect on historic sites, and was then obliged to engage in Section 106 consultation more completely than it did. Similarly, in Atakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990), under the Advisory Council's former regulations, the action agency had conducted a survey of cultural resources without consultation and determined mitigation measures on its own and the court found that the survey ought to have been conducted in consultation with the SHPO.

SOH alleges (Br. 31-47) that the FAA failed to comply with NEPA because the agency inappropriately deemed its approval of the 2000 OpSpec amendment to be categorically excluded from further NEPA review, when, according to SOH, the action (1) has more than minimal impact to protected historic properties, and (2) is highly controversial on environmental grounds. In addition, SOH claims that the FAA could not categorically exclude its action without first assessing the cumulative impacts of the FAA's 2000 and 1999 decisions. Neither argument has merit.

1. The FAA's Regulations Specifically Provide that Actions such as the 2000 OpSpec Amendment Are Categorically Excluded From Further NEPA Review. -- "Categorical exclusions" are categories of actions which have been previously determined by an agency not to have a significant effect on the environment, either individually or cumulatively. 40 C.F.R. 1508.4. Neither an EA nor an EIS is required after an action has been deemed categorically excluded. Id. at 1507.3(b)(2)(ii). Moreover, the FAA is not obliged to spell out every detail of a decision that an action is covered by a categorical exclusion, see 40 C.F.R. 1500.4(p) (urging use of categorical exclusions to reduce excessive paperwork). As the FAA's regulations note, "Categorical exclusions * * * do not require further documentation." App. 65.

The 2000 OpSpec falls within the categorical exclusion: "Operating specifications and amendments thereto which do not significantly change the operating environment of the airport. These would include, but are not limited to, authorizing use of an alternate airport, administrative revisions to operations specifications, or use of an airport on a one-time basis." App. 73. Having already determined, with CEQ approval, the categories of activities which are appropriately excluded from further NEPA review, the FAA reasonably concluded those categories encompassed its 2000 action. This determination is entitled to deference. "[A]n agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation." Alaska Center for the Environment v. Forest Service, 189 F.3d 851, 857 (9th Cir. 1999) (citing Thomas Jefferson University v. Shalala, 512 U.S. 504, 510-12 (1994); West Houston Air Comm. v. FAA, 784 F.2d 702, 705 (5th Cir. 1986); City of Alexandria v. Federal Highway Administration, 756 F.2d 1014, 1020 (4th Cir. 1985).[FN 27]

[FN 27] SOH erroneously claims (Br. 43 n.20) that 1999 OpSpec amendment warranted an EA because Order 1050.1D normally requires preparation of an EA for OpSpecs amendments authorizing the use turbojet airplanes for scheduled passenger service into an airport when that airport has not previously been serviced by any scheduled passenger turbojet airplanes. App. 153. However, the 1999 approval permitted initiation of turboprop service, considerably quieter than turbojet. That the regulations specifically mention turbojet, but not turboprop, service as an activity for which an EA could be required supports the conclusion that initiation of turboprop service is properly categorically excluded.

a. The FAA Properly Determined that the Impacts of the 2000 OpSpec Amendment were Minimal. -- SOH contends (Br. 33-39) that the 2000 OpSpec amendment falls within an exception to categorical exclusions for actions with significant impacts. SOH faults the finding of the categorical exclusion for including "no findings concerning whether the proposed amendment would have more than a minimal impact on properties protected by Section 106 or Section 4(f)." Br. 33. The determination as to the categorical exclusion in fact references the Dash-8's noise level and refers to the AEM studies. App. 311. In addition, the FAA confirmed and relied upon the GEIR and the Air Force study. The record contains multiple FAA responses to commenters explaining its analysis and conclusions. App. 135, 137, 142, 144 - 145, 198, 204, 236, 242, 309. The record thus amply supports the FAA's conclusion that the 2000 decision is categorically excluded.

By contrast, the record does not contain factual evidence contradicting the FAA's finding of insignificance. The September 22, 2000, National Park Service letter (App. 227-229, cited Br. 34-35) expresses concern about growth overall at Hanscom, and does not demonstrate how the October 2000 decision itself will affect historic resources. Like SOH's brief, the Park Service letter is not factually specific to the agency action under review but rather describes possible harm attendant upon unspecified levels of "[f]uture growth at Hanscom." App. 228. The letter does not support the claim that the FAA's determination in the October 27, 2000, approval causes any significant impacts to MMNHP, but rather calls upon the FAA generally to review its decisions respecting Hanscom in light of the impact on MMNHP of growth overall at the airport. Id.

Similarly, the letters from the Advisory Council indicate concern about the effect of overall growth at Hanscom and do not provide evidence that the decision to permit Shuttle America to provide service at LaGuardia will cause more than the minimal impact assessed by the FAA. App. 297, 299. According to the FAA, "[b]oth 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.

Nor is it correct that the FAA needed to calculate the number of trips or miles traveled resulting from flights to LaGuardia (Br. 35), or analyze visual impacts of traffic on Battle Road (Br. 37, N.16). This kind of indepth analysis would only be necessary had the FAA concluded that the increase in additional surface traffic attendant upon the LaGuardia flights would be significant, rather than finding that it would add only de minimis vehicle traffic at peak hour.[FN 28]

[FN 28] SOH cites (Br. 4, and n.19) cases requiring the action agency to respond to comments from other agencies, the general public or other experts. These cases are inapposite, as none of these cases deals with a categorical exclusion but rather address failure to answer comments on a draft EIS. Here, the commenters largely seek additional information which the FAA is not required to develop if its action is categorically excluded.

b. Community Opposition to Growth at Hanscom is not the Type of Controversy Which Requires an Environmental Assessment. -- SOH asserts (Br. 39-42) that the controversy surrounding the 2000 OpSpec approval should remove it from the categorical exclusion. Once again, SOH's brief refers not to record evidence as to a factual dispute as to the size of the impact attendant upon the 2000 decision, but to Hanscom's neighbors' expressions of concern about growth at Hanscom overall. Opposition to an agency's ultimate policy choice, however, is not the sort of "controversy" that favors an EIS. "The term 'controversial' refers 'to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.'" Wild Sheep v. U.S. Dept. of Agr., 681 F.2d 1172, 1182 (9th Cir. 1982), (quoting Rucker v. Willis, 484 F.2d 158, 162 (4th Cir. 1973) ("Otherwise, to require an impact statement whenever a threshold determination dispensing with one is likely to face a court challenge would surrender the determination to opponents of a federal action, no matter whether major or not, nor how insignificant its environmental effect might be.")). See also Lockhart v. Kenops, 927 F.2d 1028, 1035 (8th Cir.), cert. denied, 502 U.S. 863 (1991), (interpreting CEQ regulation, 40 C.F.R. 1508.27, which provides a definition of "significantly" as used in NEPA), cert. denied, 502 U.S. 863 (1991).

The regulation does not relegate agency policy-making to a poll of commenters. See Northwest Environmental Defense Center v. Bonneville Power Admin., 117 F.3d 1520, 1536 (9th Cir. 1997); LaFlamme v. FERC, 852 F.2d 389, 400-401 (9th Cir. 1988). Here, while Hanscom's neighbors are concerned about growth in commercial operations at Hanscom attributable to the 1999 decision and to anticipated future FAA decisions, they do not present factual disputes with the FAA's analysis of the specific 2000 decision.[FN 29]

[FN 29] For example, even though the HATS Environmental Sub-Committee claims (without documentation) that growth in Hanscom's air traffic is occurring faster than predicted in the GEIR (App. 273; Br. 38)), it does not refute the FAA's numerical comparisons of actual 1999 and 2000 traffic data with the predictions in the GEIR for purposes of determining the degree of difference in noise attributable the LaGuardia flights. In other words, the age of the GEIR does not invalidate its analysis of air and surface traffic impacts if, as the FAA found, the GEIR uses data commensurate with the actual air traffic volume in 2000.

In sum, SOH simply does not distinguish between any impacts demonstrably attendant upon the decision under review and their more generalized opposition to growth of air service at Hanscom and resultant possible environmental impacts.

2. The FAA Need Not Have Considered Cumulative Impacts Before Determining that this Action is Categorically Excluded. -- Because establishment of a categorical exclusion predetermines which categories of actions do not, individually or cumulatively (40 C.F.R. 1508.4), have a significant effect on the human environment, the FAA did not need to consider cumulative impacts again in determining that the 2000 OpSpec amendment was categorically excluded. National Trust for Historic Preservation, 828 F.2d 776, 781 (D.C. Cir. 1987).[FN 30]

[FN 30] Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir. 1985), cited at Br. 45, is not to the contrary. In that case, the agency was conducting an EA, so analysis of cumulative impacts was appropriate.

Furthermore, the FAA is not responsible for changes in consumer demand. National Parks and Conservation Association v. DOT, 222 F.3d 677, 680 (9th Cir. 2000), citing City of Los Angeles v. FAA, 138 F.3d 806, 807-08 and n.2 (9th Cir. 1998). When commercial commuter service was first initiated at Hansom within the last quarter century, it could not have been anticipated that the service would stop and start several times without becoming established, most recently in 1999. It would also have been hard to predict last fall that Shuttle America would now be flying only one flight daily to LaGuardia.

Finally, SOH argues that because the FAA did not complete the Section 106 consultation process, the FAA could not have concluded that the 2000 decision would not þuseþ a protected section 4(f) property. To the contrary, because the FAA found that any impacts attributable to the 2000 action were insignificant, the FAA need not have conducted further NHPA review and could not have found a use of a Section 4(f) property.

Section 4(f) prohibits "use" of protected properties, such as historic properties, by a transportation project unless there is no "prudent or reasonable alternative." 49 U.S.C. 303(c). [FN 31] To determine whether a transportation project will þuseþ a Section 4(f) resource, the courts have concluded that the action must "substantially impair the value of the site in terms of its prior significance and enjoyment." Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982); Coalition Against a Raised Expressway v. Dole, 835 F.2d 803, 810 (11th Cir. 1988); Citizen Advocates for Responsible Expansion, Inc., (I-CARE) v. Dole, 770 F.2d 423, 441 (5th Cir. 1985). An "insignificant effect on the existing use of protected lands" will not result in a "use." Allison v. Dept. of Transportation, 908 F.2d 1024, 1028 (D.C. Cir. 1990). "The relevant inquiry therefore is whether the project would have a 'significant' impact on the lands." Id.

[FN 31] FAA Order 5050.4A provides that an action that is likely to use Section 4(f) lands is an extraordinary circumstance requiring an EA. For purposes of Section 4(f), noise that is inconsistent with a parcel of land's continuing to serve its recreational, refuge, or historical purpose is a "use" of that land. City of Grapevine, Texas v. Department of Transp., 17 F.3d 1502, 1507 (D.C. Cir.), cert. denied, 513 U.S. 1043 (1994).

[FN 32] Compatibility of land uses with noise levels is determined by the FAA's "Part 150" regulations, found at Appendix A to 14 C.F.R. Part 150. Id. Under FAA guidelines, all land uses are compatible with noise levels below 65 DNL. See 14 C.F.R. 150.101, Table A. See City of Bridgeton v. FAA, 212 F.3d 448 (8th Cir. 2000) (upholding FAA's discretion to rely on the cumulative noise impact methodology found in Part 150 to determine "use" under Section 4(f)).

Here, the FAA described its consideration of Section 4(f) in a letter to the Advisory Council. App. 237. The FAA then analyzed the traffic impacts of its 2000 decision and found that they would be insignificant. The FAA conducted a compatibility review, assessing the effects on air quality, wildlife, water quality, cultural and recreational resources and numerous other matters," and determined that "frequency of operations into the forseeable future can be considered to cause no significant impact on the air and water quality, aesthetics, and/or social conditions." App. 311. It was not necessary for the FAA to do more, given the small increment of change possibly attributable to flights to LaGuardia. [FN 33] Because SOH contests, but makes no showing refuting, the findings as to the degree of change in the traffic operations, and certainly produces no evidence that the order is causing the substantial adverse effects necessary to find constructive use of the historic properties, there is no basis for the Court to not find the FAA's determination to be reasonable.

[FN 33] "[F]ormal findings are not required in a § 4(f) determination." Coalition on Sencible transportation, Inc. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987); Communities Inc. v. Busey, 956 F.2d at 625.

For the foregoing reasons, this Court should deny the petition for review of the FAA's October 27, 2000, decision approving Shuttle America's Operation Specifications amendment.

Respectfully submitted,

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

90-1-4-4334, -4335
APRIL 2001