No. 00-2340
____________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

SAVE OUR HERITAGE, ET AL., Petitioners,

v.

FEDERAL AVIATION ADMINISTRATION, Respondent,

and

SHUTTLE AMERICA CORPORATION and
MASSACHUSETTS PORT AUTHORITY,
Intervenor-respondents.
_____________________

ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL AVIATION ADMINISTRATION
_____________________

BRIEF OF PETITIONERS AND INTERVENORS


                        TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . i

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . 3

     A.  Basis for FAA's Jurisdiction Below. . . . . . . . . . . . 3
     B.  Basis for This Court's Jurisdiction . . . . . . . . . . . 4
     C.  Timeliness of Petition for Review . . . . . . . . . . . . 4
     D.  Final Order . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . 5

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . 6

     A.  Nature of the Case. . . . . . . . . . . . . . . . . . . . 6
          1.    Section 106 of the NHPA. . . . . . . . . . . . . . 6
          2.    NEPA . . . . . . . . . . . . . . . . . . . . . . . 8
          3.    Section 4(f) . . . . . . . . . . . . . . . . . . . 9
     B.  Course of Proceedings . . . . . . . . . . . . . . . . . .10
     C.  Disposition Below.. . . . . . . . . . . . . . . . . . . .11
     
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . .11

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . .16

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

     Standard of Judicial Review . . . . . . . . . . . . . . . . .20

I.   The FAA Violated Section 106 By Approving the
     Amendment to Shuttle America's Operations Specifications
     Prior to Completing the Section 106 Process.. . . . . . . . .21

     A.   The FAA's Approval of Shuttle America's Amended Operations
          Specifications is An Undertaking Subject to Section 106.21
     
     B.   Where the SHPO Timely Refuses To Concur in the FAA's
          Proposed Finding of "No Effect," the FAA Is Not Permitted to
          Unilaterally Abort the Section 106 Process Without Continuing
          to Consult Under Section 106 to Assess Adverse Effects And
          Resolve Any Adverse Effects Subsequently Identified. . .24

II.  The FAA Violated NEPA By Failing To Prepare
     an EA or EIS Prior to Adding LaGuardia Airport to 
     Shuttle America's Operations Specifications.. . . . . . . . .31

     A.   The FAA's Action Adding LaGuardia Airport
          to Shuttle America's Operations Specifications Does
          Not Fall Within the Categorical Exclusion From NEPA
          Contained in the FAA's Regulations.... . . . . . . . . .31

          1.    The Amendment Will Have More than A Minimal Impact on
                Protected Historic Properties. . . . . . . . . . .33
     
          2.    The Amendment of Shuttle America's Operations
                Specifications Is Highly Controversial on
                Environmental Grounds. . . . . . . . . . . . . . .39
     
     B.   The FAA Failed to Consider the Cumulative Impacts of
          Its Actions on The Many Historic and Natural Resources
          Surrounding Hanscom Field. . . . . . . . . . . . . . . .42
     
III. The FAA Violated Section 4(f).. . . . . . . . . . . . . . . .47

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . .49

ADDENDUM

INTRODUCTION

In this proceeding, Petitioners Save Our Heritage, Inc.; Safeguarding The Historic Hanscom Area's Irreplaceable Resources, Inc., ("ShhAir"); The Walden Woods Project, Inc.; The Minute Man National Park Association; the Louisa May Alcott Memorial Association; The Town of Concord, Massachusetts; the Town of Lexington, Massachusetts; and The Town of Lincoln, Massachusetts, and Intervening Petitioners Concord Museum and the Ralph Waldo Emerson Society, Inc. (collectively, "Petitioners") seek judicial review of the October 27, 2000 Order issued by respondent Federal Aviation Administration ("FAA") approving an amendment to Shuttle America Airlines' operation specifications in order to allow Shuttle America to provide scheduled passenger service between L.G. Hanscom Field ("Hanscom Field") and New York's LaGuardia International Airport ("LaGuardia"). [FN 1]

[FN 1] In addition, the Town of Bedford is filing today a request that it be permitted to intervene out-of-time as a petitioner in order to join Petitioners' brief.
Hanscom Field is located about 15 miles from Boston in the towns of Bedford, Concord, Lexington, and Lincoln, Massachusetts, and has been operated by the Massachusetts Port Authority ("Massport") since 1974 as a general aviation airport. Hanscom Field lies in close proximity to numerous historic resources of great national significance, including the Minuteman National Historical Park commemorating the birthplace of the American Revolution, Walden Woods and Pond, considered the cradle of the American environmental movement, as well as the homes of renowned American authors Ralph Waldo Emerson, Louisa May Alcott, Nathaniel Hawthorne, and Henry David Thoreau, and approximately one thousand sites that are listed in the National Register of Historic Places.

The FAA's action challenged here is the latest step in a pattern of incremental FAA approvals of expanded air service at Hanscom Field issued without any consideration of the impacts on the surrounding nationally significant historic and natural resources, in violation of Section 106 of the Historic Preservation Act, 16 U.S.C. 470f, the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4332, and Section 4(f) of the Department of Transportation Act, 49 U.S.C. 303(c). The FAA's actions have fueled the dramatic growth of commercial operations at Hanscom Field, which have increased more than 300 percent in just over one year, along with a concomitant increase in ground traffic on the historic Battle Road through the Minute Man National Historical Park, one of the Park's primary historic resources. The Battle Road is the primary public access road to Hanscom Field. Appendix ("App.") 206. The FAA is likely to continue to take actions that further stimulate this uncontrolled growth and its concomitant impacts on the surrounding nationally significant historic and natural resources without complying with these important environmental and historic preservation laws. The FAA's latest finding that its most recent action, even when considered in isolation from these prior actions, will have no impacts on natural and historic resources, is not supported by substantial evidence in the record and is contrary to law.


JURISDICTIONAL STATEMENT

Pursuant to F.R.A.P. 28(a)(4), Petitioners submit the following jurisdictional statement:

A. Basis for FAA's Jurisdiction Below. Under the Federal Aviation Act of 1958, the FAA is responsible for promoting flight safety in air commerce by prescribing and enforcing safety standards at all levels of aviation activity, including the operations of airlines or "air carriers." 49 U.S.C. 40101 et seq. These responsibilities include the issuance, amendment, modification, or revocation of airline ■operations specifications■ to air carriers conducting domestic, flag, or commuter operations. 49 U.S.C. 44705, 44709. Operations specifications govern, among other things, the aircraft and airports any such carriers are permitted to use in scheduled operations. 14 C.F.R 119.49(a)(4).

B. Basis for This Court's Jurisdiction. This Court has jurisdiction over petitions to review final FAA orders, including orders amending airline operations specifications, pursuant to 49 U.S.C. 46110.

C. Timeliness of Petition for Review. On October 27, 2000, the FAA approved an application filed by Shuttle America to amend its operations specifications in order to provide scheduled passenger service to New York's LaGuardia International Airport. This petition for review was filed on October 30, 2000, and was joined by Intervening Petitioners Concord Museum and the Ralph Waldo Emerson Society on December 16, 2000. Thus, each of the Petitioners either filed their petition for review with this Court or joined the pending petition within sixty days of the issuance of this order, as required by 49 U.S.C. 46110. This Court also has jurisdiction to review the FAA■s failure to consider the cumulative impacts of the FAA's prior approvals in September, 1999, granting Hanscom Field a full Part 139 Airport Operating Certificate and granting Shuttle America approval to commence scheduled passenger service at the airport, in connection with the action subject to the instant petition for review.

D. Final Order. The FAA's October 27, 2000 decision approving the amendment to Shuttle America's Operations Specifications is a final order, as are the FAA's September 27, 1999 Order granting Hanscom Field a Full Part 139 Airport Operating Certificate, and the FAA's September 27, 1999, decision amending Shuttle America's operations specifications to permit Shuttle Airline to commence scheduled passenger service from Hanscom Field.


STATEMENT OF ISSUES

1. Whether the FAA violated Section 106 and its implementing regulations by approving Shuttle America's application to amend its operations specifications, without first taking into account the effects of Shuttle America's increased operations on historic properties, in consultation with the Massachusetts Historic Commission and the Advisory Council on Historic Preservation.

2. Whether the FAA violated NEPA by failing to prepare an Environmental Impact Statement or an Environmental Assessment prior to approving Shuttle America's application to amend its operations specifications, despite the fact this action, as evidenced by the comments of the Massachusetts Historical Commission ("MHC"), the National Park Service, and of the Advisory Council on Historic Preservation, has more than a minimal impact on historic properties, and has generated substantial controversy.

3. Whether the FAA violated NEPA by failing to consider the cumulative environmental impacts of the FAA's past, present, and foreseeable future actions prior to deciding that Shuttle America's application to amend its operations specifications was "categorically excluded" from NEPA review.

4. Whether the FAA violated Section 4(f) by approving Shuttle America's application to amend its operations specifications without first considering the cumulative environmental impact of the FAA's past, present, and foreseeable future actions on protected properties, and without first completing the Section 106 process.


STATEMENT OF THE CASE

Nature of the Case

This petition seeks review of the FAA's failure to comply with three federal laws: Section 106 of the NHPA, NEPA, and Section 4(f). The requirements imposed by these laws, each of which is applicable to the FAA's amendment of Shuttle America's Operations Specifications challenged herein, are summarized as follows:


1. Section 106 of the NHPA

Section 106 of the NHPA prohibits federal agencies from engaging in any federal undertaking (or federally assisted or licensed undertaking) unless the agency first (1) takes into account the effects of the undertaking on historic properties; and (2) affords the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking, "prior to" the issuance of a license or the approval of federal assistance. [FN 2] Id. § 470f.

[FN 2] The Advisory Council on Historic Preservation ("Advisory Council") is an independent federal agency responsible for the implementation and enforcement of the NHPA in its entirety. 16 U.S.C. § 470s.
The Advisory Council has promulgated regulations implementing the requirements of Section 106. 36 C.F.R. Part 800. [FN 3] These regulations establish a three-step process that agencies must complete before approving any undertaking, known as "the Section 106 process." First, the federal agency, in consultation with the State Historic Preservation Officer ("SHPO") [FN 4] must make a "reasonable and good faith effort" to identify all historic properties that may be affected by the undertaking, and must assess the effects of the project on those properties. Id. §§ 800.4, 800.5. If the effects of the project will be adverse, the agency must then seek ways to avoid, minimize, or mitigate those adverse effects, in consultation with the SHPO and the Advisory Council. Id. § 800.6.
[FN 3] The Advisory Council revised its Section 106 regulations, effective June 17, 1999. 64 Fed. Reg. 27,043 (May 18, 1999). Although the Council has since revised its regulations again, 65 Fed. 77,697 (Dec. 12, 2000), citations herein will be to the 1999 regulations, since these regulations were in effect at the time of final agency decisions.

[FN 4] The SHPO is the state official responsible for assisting federal agencies in carrying out their historic preservation responsibilities under 16 U.S.C. 470(b). The Massachusetts Historical Commission is the SHPO for the Commonwealth of Massachusetts.

The Section 106 review process is concluded most frequently by the execution of a Memorandum of Agreement ("MOA"), which then would "govern the undertaking and all of its parts." 16 U.S.C. 470h-2(l). Alternatively and rarely, the consultation process is "terminated," and the Section 106 review must be concluded by the Advisory Council's issuance of formal comments and the agency's formal response thereto. 36 C.F.R. § 800.7.


NEPA

NEPA requires all federal agencies to prepare an environmental impact statement ("EIS") before undertaking any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). The regulations promulgated by the Council on Environmental Quality ("CEQ") [FN 5] provide for a number of different steps that an agency can take to determine whether a proposed action will have a "significant" environmental impact. First, an agency can prepare an Environmental Assessment (EA) which "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. 1501.3, 1501.4, 1508.9(a). If an agency determines no EIS is necessary, the agency must prepare and make publicly available a Finding of No Significant Impact ("FONSI") explaining why an action will not have a significant effect on the human environment. Id. §§ 1501.4(e), 1508.13.

[FN 5] The CEQ regulations implementing NEPA, which are found in 40 C.F.R. Part 1500, are binding on all federal agencies. Id. § 1500.1(a).
Alternatively, agencies are permitted to identify, by regulation, classes of actions which have been found by an agency not to individually or cumulatively have a significant impact on the environment, and thus are "categorically excluded" from the requirement of either an EA or and EIS. Id. § 1508.4. Any "categorical exclusions" developed by agencies must "provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect." Id.


3. Section 4(f).

Section 4(f) of the Department of Transportation Act is a plain and explicit prohibition against the approval by Secretary of Transportation of any transportation project or program that would "use" land from any park, historic site, recreational area, or wildlife refuge unless (1) there is no prudent and feasible alternative to such use, and (2) the Secretary undertakes all possible planning to minimize harm to these protected resources. 49 U.S.C. 303. The circumstances under which a preservation alternative may be rejected under Section 4(f) have been narrowly defined by the U.S. Supreme Court: transportation officials are forbidden from rejecting alternatives that would avoid or minimize harm to protected sites unless they can show that the preservation alternatives would result in costs or community disruption of "extraordinary magnitudes," or other unique factors. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413 (1971). A project can "use" protected properties either through "actual, physical takings of such lands but also significant adverse indirect impacts as well," which "by means of noise, air pollution, and general unsightliness, dissipate its aesthetic value and take it in every practical sense." Allison v. Department of Transportation, 908 F.2d 1024, 1029 (D.C. Cir. 1990).


Course of Proceedings

The course of proceedings leading up to the instant petition for review began in September, 1999, when the FAA upgraded Hanscom Field's operating "Part 139" Airport Operating Certificate, and approved an amendment to Shuttle America■s operations specifications, to allow Shuttle America to commence scheduled passenger service out of Hanscom Field. App. 129, 205. The FAA did not comply with Section 106 or Section 4(f), or prepare an EIS or an Environmental Assessment in connection with these actions. App. 127, 199-200.

The instant petition for review was filed following the FAA's latest decision, on October 27, 2000, to issue a second amendment to Shuttle America's operations specifications, this time, without completing the Section 106 or NEPA processes, or making any determinations whatsoever under Section 4(f). App. 308. On the same day, the FAA determined that the amendment to Shuttle America's operations specifications was categorically excluded from NEPA review. App. 309.


Disposition Below

On October 27, 2000, the FAA approved the amendment to Shuttle America's operation specifications, without completing the Section 106 process and without preparing an environmental assessment or impact statement for this action. App. 313. On November 2, 2000, Petitioners timely filed a petition for review challenging this amendment, and requested that the FAA's decision be stayed pending appeal. By order dated November 27, 2000, this Court declined to stay the effectiveness of that order pending review, based on a determination that no irreparable injury would result from continued flights from Hanscom to LaGuardia.


STATEMENT OF FACTS

On September 27, 1999, the FAA approved an amendment to Shuttle America's operations specifications permitting Shuttle America to use Hanscom Field for scheduled passenger service utilizing a turboprop plane with more than 50 seats. At the same time, the FAA granted Massport's application to upgrade the "Part 139" Airport Operating Certificate for Hanscom Field from limited to full, which change permitted Hanscom Field to receive scheduled commercial service using aircraft with more than 30 seats for the first time. App. 129. Neither of these approvals were preceded by the reviews mandated by Section 106, NEPA, and Section 4(f), based on the assertion that Shuttle America would make no more than four daily flights. App.127, 135. As a result, the public received no information about the impacts of these actions until the impacts of not four but ten flights (twenty take-offs and landings, called "flight operations") per day.

In response to complaints from a variety of concerned organizations and governments, including Petitioners, in October, 1999, and again in April, 2000, the federal Advisory Council on Historic Preservation initiated a formal inquiry into the FAA's role in approving expansion of passenger service at Hanscom Field, and the status of the FAA's compliance with Section 106 in connection with these prior FAA actions. App. 130, 140. In the meantime, in May, 2000, Shuttle America filed another request for an amendment to its operations specifications, this time to add LaGuardia International Airport onto its operations specifications to initiate new Hanscom Field-to-LaGuardia service. The FAA finally responded to the Advisory Council's inquiries in August, 2000, at which time the FAA agreed to "ensure that the requirements of the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA) are met." App. 201.

[FN 6] Shuttle America proposed to use 14 LaGuardia Airport "slots," to be used for seven round trip Hanscom-to-LaGuardia flights, granted by the U.S. Department of Transportation (USDOT) pursuant to the Aviation Investment and Reform Act for the 21st Century ("AIR-21"), 49 U.S.C. 41716 (2000). App. 341. No NEPA or Section 106 review was conducted by the USDOT in connection with the approval of these slot exemptions.
Accordingly, on September 15, 2000, the FAA made a proposed finding to the Massachusetts Historic Commission ("MHC") that the "proposal of Shuttle America to add 7-10 flights a day to Hanscom Field will not affect historic properties or landmarks protected by Section 106 or Section 110(f) of the National Historic Preservation Act (NHPA) respectively." App. 206. In support of this proposed finding, the FAA summarized the results of studies noise and air quality studies, and extrapolated therefrom that the ■the proposed action does not have the potential■ to affect the Minute Man National Historical Park ("MMNHP"), which directly abuts Hanscom Field. App. 210. The FAA also concluded that "the proposed action has no potential" to affect Walden Pond or "other similar historic properties that are located at greater distances from the airport." The FAA then requested the MHC's comments. App. 211.

The FAA's proposed "no effect" finding generated substantial controversy, and elicited numerous comments from affected governmental entities, including the National Park Service, and from representatives of the organizations which are stewards of the nationally significant resources in the vicinity of Hanscom Field. App. 228-41. Of particular concern to these commenters was the FAA's failure to consider the effect of increasing traffic on the already congested State Route 2A, also known as the Battle Road, a narrow, two-lane road winding through the Minute Man National Historical Park, which is the main road leading to Hanscom Field. Id. [FN 7]

[FN 7] The Battle Road is one of the primary resources Congress sought to protect in establishing Minute Man National Historical Park. App. 228. It is the location of the running battle between the colonial militia and British regulars on April 19, 1775, the first battle of the American Revolution. Id. As the U.S. Air Force traffic study relied on by the FAA acknowledged, several intersections along the Battle Road are already designated as "congested." App. 217. Commercial flights will exponentially increase traffic on the Battle Road because of the large numbers of passengers who must travel to and from the airfield. Even if it assumed that Shuttle America will make only 10 flights per day (20 operations), and each passenger drives him or herself to the airport, thereby generating only two rather than four trips per passenger, this translates into 1,000 additional trips per day on the Battle Road.
Within 30 days of receipt of the FAA's proposed finding of "no effect" on historic properties, the MHC timely notified the FAA that additional documentation concerning the undertaking■s area of potential effects, including an analysis of noise and traffic impacts, was needed in order for the SHPO to be able to complete its review of the undertaking's effects on historic properties. App. 234. The FAA responded by referring the MHC to noise and traffic analyses extrapolated from data collected in 1995 in connection with a generic environmental impact report prepared by Massport pursuant to state law that year. App. 242.

By letter dated October 12, 2000, the MHC again determined that the documentation submitted by the FAA was insufficient to enable the MHC to concur in the FAA's proposed finding that the amendment of Shuttle America's operations specifications would have "no effect" on historic resources. App. 264. The MHC rejected as inadequate the studies proffered by the FAA that had been prepared in connection with other actions, and reiterated its request that the FAA prepare project-specific studies of the potential noise and traffic impacts associated with expanded service at Hanscom Field, as well as a cultural resource survey of possible historic properties within the undertaking's area of potential of effects. Id. The FAA did not respond to the SHPO's letter or supply the requested information. Instead, by letter dated October 27, 2000, the FAA determined that continuing consultation would only lead to "further delay," and therefore informed the Advisory Council that "it is the agency's intention to issue the operation specifications to Shuttle America." App. 308.

On October 27, 2000, the FAA approved the amendment to Shuttle America's operation specifications. App. 313. Also on the same date, the FAA issued a "Categorical Exclusion for Amendment of Operations Specifications, Shuttle America Airlines." App. 311-12. The Categorical Exclusion concluded, based on an analysis of the potential noise and air quality impacts resulting from the proposed 7 to 10 flights, that the action "would not significantly change the operating environment of the airport," and that the action was therefore "deemed to be a categorical exclusion in accordance with FAA Order 1050.1D, Appendix 4." App. 312.


SUMMARY OF ARGUMENT

The FAA's October 27, 2000 action approving the addition of LaGuardia Airport to Shuttle America's operations specifications is an undertaking subject to Section 106 of the NHPA, and the FAA was therefore required to make this determination in conformity with the Advisory Council■s binding regulations implementing Section 106. These regulations do not permit the FAA to unilaterally declare that an undertaking would have "no effect" on historic properties, simply because it believes that consultation would involve "further delay." National Trust for Historic Preservation v. U.S. Army Corps of Engineers, 552 F. Supp. 784 (S.D. Ohio 1982); Attakai v. United States, 746 F. Supp. 1395 (D. Ariz. 1990).

Instead, the Section 106 regulations require such findings to be submitted to the State Historic Preservation Officer (here, the MHC), with appropriate documentation, for a 30-day review period. 36 C.F.R. 800.4(d), 800.11(a). If the SHPO provides the agency with timely notification that it does not concur in a proposed "no effect" finding, then the agency is required to "notify all consulting parties, . . . invite their views on the effects and assess adverse effects, if any, in accordance with § 800.5." Id. § 800.4(d)(2). Since here, the MHC refused to concur in the FAA's finding of "no effect," the FAA was required to continue the consultation to assess adverse effects. The FAA's decision at that juncture to simply abort the Section 106 process, barely one month after its initiation, violates Section 106.

The FAA also violated NEPA by failing to prepare either an environmental assessment or an environmental impact statement prior to approving the amendment to Shuttle America's operations specifications to permit Shuttle America to fly to LaGuardia Airport. Instead, the FAA took the position that no NEPA review was required for this action, based on its NEPA regulations providing a "categorical exclusion" for "[o]perating specifications and amendments thereto which do not significantly change the operating environment of the airport." See FAA Order 1050.1D, Appendix 4, ¶ 4.h. App. 73.

The FAA's conclusion that its October 27, 2000 decision to allow Shuttle America to fly to LaGuardia Airport was subject to a categorical exclusion from NEPA lacks substantial evidence in the record. The FAA failed to consider, as required by its own regulations, whether the amendment to Shuttle America's operations specifications fell within the exception to the categorical exclusion applicable to actions that have more than a minimal impact on historic properties protected by Section 106 and Section 4(f), and that are highly controversial on environmental grounds. See FAA Order 1050.1D, Chapter 3, ¶ 32.a & b. App. 65 In fact, there is substantial evidence in the record demonstrating that the effects of Shuttle America■s increased operations, even the 7-10 LaGuardia flights initially proposed would adversely effect the area■s extraordinary collection of historic resources through noise and, in particular, additional surface traffic on the local roadways serving Hanscom Field, including the historic Battle Road running through the adjacent Minute Man National Historical Park. Likewise, the strong disagreement with this finding voiced by the National Park Service and the Hanscom area local towns, and the resulting decision by the Advisory Council to enter into the Section 106 consultation, demonstrate that the action is highly controversial on environmental grounds, which takes the action out of the NEPA categorical exclusion.

The FAA also violated its own NEPA regulations by failing to consider the cumulative impacts of this action when added to the impacts of past FAA actions authorizing expanded air service as Hanscom Field. As a result, the FAA has completely evaded any review of its actions under NEPA, in violation of the FAA's own regulations requiring the FAA to to consider "the incremental impact of the action when added to other past . . . actions." See FAA Order 1050.1D, Chapter 3, ¶ 34. App. 66 (emphasis added). When considered together, these actions that have transformed Hanscom Field from a general aviation facility to a rapidly growing commercial airport over the past year, which actions have significantly changed the operating environment at Hanscom and requiring the preparation of an EA or EIS.

Finally, the FAA■s decision violated Section 4(f) of the Department of Transportation. Given the national significance and close proximity of the historic resources surrounding Hanscom Field, any conclusion regarding the extent to which these resources are "used" by Shuttle America's increased flight activity must be informed by the Section 106 process. See Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 371 (D.C. Cir. 1999).


ARGUMENT

Standard of Judicial Review

The private right of action and standard of judicial review for this lawsuit are supplied by 49 U.S.C. 46110. This provision states that "[f]indings of fact by the Secretary or Administrator, if supported by substantial evidence, are conclusive." Id. § 46110(c). As one court noted, "Congress has indicated that the substantial evidence test is the proper standard governing judicial review of all FAA decisions ...." Suburban O'Hare Commission v. Dole, 787 F.2d 186, 194 (7th Cir. 1986), cert. denied, 479 U.S. 847 (1986); Law Motor Freight v. CAB, 364 F.2d 139, 144 (1st Cir. 1966), cert. denied, 387 U.S. 905 (1967). This standard applies even where the agency decision under review is the product of "nonadversary, informal proceedings." Suburban O'Hare Commission v. Dole, 787 F.2d at 194 (applying substantial evidence test to agency findings under NEPA).

This case also raises questions of law concerning the construction and meaning of the FAA's obligations under federal environmental and historic preservation laws, which are reviewed de novo. See Conservation Law Foundation v. Busey, 79 F.3d 1250, 1256 (1st Cir. 1996); United Technologies v. Browning Ferris Indus., 33 F.3d 96, 98 (1st Cir. 1994), cert. denied, 513 U.S. 1183 (1995).


I. The FAA Violated Section 106 By Approving the Amendment to Shuttle America's Operations Specifications Prior to Completing the Section 106 Process.

A. The FAA's Approval of Shuttle America's Amended Operations Specifications is An Undertaking Subject to Section 106.

Section 106 of the NHPA applies to all federal undertakings and to undertakings that are federally assisted or that require a federal license or permit. 16 U.S.C. 470f. The NHPA defines "undertaking" as follows:

"Undertaking" means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including --

(A) those carried out by or on behalf of the agency;
(B) those carried out with Federal financial assistance;
(C) those requiring a Federal permit, license, or approval; and
(D) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.
16 U.S.C. 470w(7). The Advisory Council's regulations implementing Section 106 provide that an agency action is an undertaking if it "is a type of activity that has the potential to cause effects on historic properties." 36 C.F.R. 800.3(a). "If the undertaking does not have the potential to cause effects on historic properties, the Agency Official has no further obligations under section 106 or this part." Id. § 800.3(a)(1).

Here, the FAA's regulations governing operations specifications indicate that the FAA's decision to add LaGuardia Airport to Shuttle America's operations specifications is a federal "permit, license, or other approval" within the statutory definition of an "undertaking," 16 U.S.C. 470w(7). Moreover, the FAA's decision to approve LaGuardia as a regular airport on Shuttle America's operation specifications is "the type of activity" that has the potential to cause effects on historic properties, and therefore comes within the purview of Section 106. 36 C.F.R. 800.3(a). As a result of the FAA's approval, Shuttle America has added six round trip daily flights (12 flight operations) to LaGuardia Airport, and needs no further approval from the FAA to increase its daily flight operations to LaGuardia to 14 (seven round-trips) to fill its fourteen LaGuardia slots.

The FAA's view, expressed below, that because its approval of the amendment to Shuttle America's operations specifications was "categorically excluded" from NEPA, no Section 106 compliance is required, has been resoundingly rejected by the Advisory Council on Historic Preservation. App. 137. As the Advisory Council specifically advised the FAA, "[a]n action categorically excluded from review under the National Environmental Policy Act can nevertheless qualify as an undertaking requiring review under Section 106." App. 140. [FN 8] As the Advisory Council further explained:

Section 800.3(a) requires that an agency determine whether its action fits the definition of undertaking and then determine "whether it is a type of activity that has the potential to cause effects on historic properties." If the undertaking is the type of activity that could result in impacts to historic properties, the agency must proceed with the Section 106 review process to determine whether there indeed will be effects and the nature of such effects. On 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 (latter emphasis added, former in original).
[FN 8] Significantly, the FAA's regulations identify no "categorical exclusions" from Section 106 in connection with the FAA's responsibilities with respect to "Historic, Architectural, Archeological, and Cultural resources." See FAA Order 1050.1D, Attachment 2, Change 3, ¶ 5.a.(4). App. 83. To the contrary, these regulations specifically recognize the applicability of the NHPA, and provide that an "[evaluation of the effect [of the proposed action] should be made in consultation with the State Historic Preservation Officer (SHPO)." Id. App. 82-83.
The Advisory Council on Historic Preservation has exclusive authority to determine the methods for compliance with Section 106. National Center for Preservation Law v. Landrieu, 496 F. Supp. 716, 742 (D.S.C.), aff'd per curiam, 635 F.2d 324 (4th Cir. 1980). The Advisory Council's regulations "govern the implementation" of Section 106 "in its entirety," not only for the Council itself, but for all other federal agencies. 16 U.S.C. 470s; see National Trust for Historic Preservation v. U.S. Army Corps of Engineers, 552 F. Supp. 784, 790- 91 (S.D. Ohio 1982). These regulations, and the Advisory Council's interpretation thereof, are accorded substantial deference or "great weight" by the courts. See Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 280 (3d Cir. 1983) ("the Advisory Council's regulations are particularly persuasive concerning the proper interpretation of NHPA."); McMillan Park Committee v. National Capital Planning Commission, 968 F.2d 1283, 1288 (D.C. Cir. 1992); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 858 (9th Cir. 1982); WATCH v. Harris, 603 F.2d 310, 324 (2d Cir. 1979). Accordingly, the FAA's arguments that its approval of the amendment to Shuttle America's operations specifications is not an "undertaking" subject to Section 106 must give way to the Advisory Council's contrary finding in this case.


B. Where the SHPO Timely Refuses To Concur in the FAA's Proposed Finding of "No Effect," the FAA Is Not Permitted to Unilaterally Abort the Section 106 Process Without Continuing to Consult Under Section 106 to Assess Adverse Effects And Resolve Any Adverse Effects Subsequently Identified

The plain language of the NHPA as well as the regulations of the Advisory Council require agencies to complete the Section 106 process "prior to . . . the issuance of any license." 16 U.S.C. 470f; 36 C.F.R. 800.1(c). The record in this proceeding demonstrates that the FAA failed to comply with the procedures outlined in the Advisory Council's regulations necessary to complete the Section 106 process prior to approving Shuttle America's proposed flights between Hanscom and LaGuardia.

Under the Advisory Council's regulations, if an agency contemplating an "undertaking" finds either that there are no historic properties present within the affected area or that the undertaking will have no effect upon any historic properties, the agency is required to "provide documentation of this finding as set forth in 800.11(d) to the SHPO/THPO." 36 C.F.R. 800.4(d). The required documentation includes a description of the undertaking "and its area of potential effects, including photographs, maps, drawings, as necessary," "[a] description of the steps taken to identify historic properties," and "[t]he basis for determining that no historic properties are present or affected." Id. 800.11(d). If the SHPO "determines the applicable documentation standards are not met, the . . . SHPO . . . shall notify the Agency Official and specify the information needed to meet the standard." Id. § 800.11(a).

In addition, the regulations provide that:

The Agency Official shall notify all consulting parties . . . and make the documentation available for public inspection prior to approving the undertaking. If the SHPO/THPO, or the Council if it has entered the section 106 process, does not object within 30 days of receipt of an adequately documented finding, the Agency Official's responsibilities under section 106 are fulfilled. . .
Id. § 800.4(d)(1) (emphasis added). If either the SHPO or the Advisory Council objects to the agency's finding of "no effect," "the Agency Official shall notify all consulting parties . . , invite their views on the effects and assess adverse effects, if any, in accordance with § 800.5." Id. § 800.4(d)(2).

Here, the FAA initiated the Section 106 process with a letter to the MHC dated September 15, 2000, asserting that its action would have ■no effect■ on historic properties, notwithstanding the proximity of Hanscom Field to the numerous historic properties in the area. App. 204. Within the required time frame for response, the MHC notified the FAA pursuant to 36 C.F.R. 800.11(a) that additional documentation was needed in order for the MHC to complete its review of the undertaking■s effects on nearby historic properties, and that project-specific studies would be required rather than studies performed by Massport or in connection with other actions. App. 234. The FAA refused to provide this requested documentation, whereupon the MHC formally advised the FAA that "because the MHC has determined that the documentation submitted to date does not meet the documentation standards under the Advisory Council's regulations, the MHC is unable to concur with your determination that no historic properties will be affected by Shuttle America's proposal." App. 264.

The FAA, however, did not respond to the MHC's October 12, 2000 request for additional documentation, nor did the FAA notify all consulting parties . . , invite their views on the effects and assess adverse effects, if any, in accordance with § 800.5," as required by 36 C.F.R. 800.4(d)(2). [FN 9] Instead, the FAA simply aborted the Section 106 process, and approved the amendment to Shuttle America's operations specifications.

[FN 9] The Section 106 process also requires the FAA to work with various "consulting parties." In addition to the Advisory Council and the SHPO, the regulations identify representatives of local governments with jurisdiction over the areas in which effects to historic properties may occur are automatically deemed to be consulting parties. 36 C.F.R. 800.2(c)(4). Other interested parties can request consulting party status, and the federal agency, in consultation with the SHPO, must grant or deny such requests. Id. § 800.2(c)(6). In this case, the towns of Concord, Lexington and Lincoln (petitioners herein) all wrote to the FAA asserting their automatic status as consulting parties (because Hanscom lies within their borders) and asking to be kept informed. See, e.g. App.226.

The FAA never responded to these letters, never acknowledged the towns' rightful status as consulting parties, and never sent them copies of its communications with the SHPO (or anything else, for that matter). The FAA also ignored the many requests for discretionary consulting party status, including from each of petitioners. See, e.g. App. 230-33. The FAA's utter disregard of the consulting parties is emblematic of its failure to seriously address its Section 106 obligations in this case.

The Advisory Council's regulations do not permit an agency to declare the Section 106 process to be complete simply because the agency has unilaterally determined that the undertaking would have "no effect" on historic properties. Instead, as noted above, the Section 106 regulations require that the SHPO and the Advisory Council (where, as here, it has decided to participate in the consultation) be given an opportunity to object to such a finding, once this finding has been adequately documented, before the agency may approve the undertaking. 36 C.F.R. 800.4(d). Since a "no effect" finding terminates the agency's Section 106 obligations, id. § 800.4(d)(1), agencies do not have the right to make unilateral determinations at this important step in the process; otherwise, the incentive would always be to lean in favor of a finding that would end the agency's Section 106 responsibilities. [FN 10]
[FN 10] In its recent revision to its regulations, the Advisory Council expressly declined to eliminate this consultation requirement, explaining:

Most federal agencies . . . did not want the Council's position to be binding on the Federal agency, but merely advisory. The Council considered this concern, but rejected it as the Council maintains it has the right to interpret the correct application of its regulations. If an agency incorrectly applied the criteria of adverse effect, the Council viewed this as a misapplication of its procedures.

64 Fed. Reg. at 27,055 (May 18, 1999).


Continued in Part Two