Cite as: 161 F.3d 569
U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MORONGO BAND OF MISSION INDIANS, Petitioner,
FEDERAL AVIATION ADMINISTRATION; WILLIAM WITHYCOMBE,
Regional Administrator, FAA, Respondents.
Argued and Submitted August 11, 1998
Filed November 23, 1998
Petition for Review of Decision of the Federal Aviation Administration
John R. Shordike, Alexander & Karshmer, Berkeley, California, for the petitioner.
Marta Hoilman, Environment and Natural Resources Division, United States Department of Justice, Washington D.C., for the respondents.
Perry M. Rosen, Cutler & Stanfield, Washington, D.C., for amicus curiae City of Los Angeles.
Steven R. Orr, Richards, Watson & Gershon, Los Angeles, California, for amici curiae City of Hermosa Beach, City of Redondo Beach, City of Manhattan Beach, City of Rancho Palos Verdes, City of Hawthorne, and City of El Segundo.
Before: Melvin Brunetti, A. Wallace Tashima and Susan P. Graber, Circuit Judges.
TASHIMA, Circuit Judge:
The Morongo Band of Mission Indians ("Morongo Band" or "Tribe") petitions for review of a Record of Decision ("ROD" ) of the Federal Aviation Administration ("FAA"), implementing the Los Angeles International Airport ("LAX") East Arrival Enhancement Project ("AEP"). The Morongo Band raises claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § § 4321-4370d, section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f, section 4(f) of the Transportation Act, 49 U.S.C. § 303(c), and various FAA regulations.
We have jurisdiction over this timely petition for review under 49 U.S.C. § 46110(a), and we deny the petition.
The Morongo Reservation is located on over 32,000 acres in Riverside County, California, approximately 90 miles east of Los Angeles. The Reservation includes canyons and undeveloped areas where tribal members conduct traditional ceremonies, as well as sites that they consider sacred for cultural and spiritual purposes.
In February 1997, the FAA began what is called the NEPA scoping process for the AEP. Pursuant to that process, the FAA sent letters to all federal and state agencies, local governments, and private organizations, including the Morongo Band, that might have an interest in the project. The letter stated that the FAA was beginning an environmental assessment of the proposed AEP, described the proposed action, and invited comments about it.
The description of the project enclosed with the letter noted that the volume of arrivals at LAX had increased and was projected to continue to grow in the future, resulting in the need to revise arrival procedures in order to ensure safety and efficiency. In particular, the system of dealing with arrivals from the east, as opposed to the north and west, was in need of change. The FAA therefore proposed to move one of the three existing arrival routes eight miles south, which, unfortunately for the Morongo Band, would cause the flight path to cross the Reservation, instead of bypassing it to the north.
The Tribe responded to the initial scoping letter with a letter detailing some of its concerns, such as the adverse impact on the Reservation of the increased air traffic (an additional 180 aircraft per day). There followed a series of letters, as well as a meeting between the FAA and an Environmental Officer of the Tribe. On June 12, 1997, the Morongo Band sent a letter proposing an alternate route designed to satisfy the AEP's goals without crossing the Reservation. According to the FAA, the draft Environmental Assessment ("EA") was already being printed for publication on June 18, 1997, so the Tribe's proposal could not be included in the draft. The proposal was, however, included in the final EA.
On July 10, 1997, the FAA held a public information meeting on the AEP at the Morongo Tribal Hall. On July 29, 1997, the FAA met with Thomas McCort, the Tribe's technical consultant.
The final EA was issued on August 29, 1997, with a comment period that ran until October 3. In the EA, the FAA discussed several alternatives, including the Tribe's proposal, but concluded that the best solution was the route that crossed the Reservation. The Morongo Band wrote a letter to the FAA asking technical questions about its own proposal and requesting another meeting before final approval of the EA. The FAA, however, decided that the Tribe had raised no new issues; therefore, on October 24, 1997, it issued a Finding of No Significant Impact ("FONSI") and, on January 30, 1998, issued its ROD granting final approval of the EA. The FAA declined the Tribe's request to stay the project and implemented it on March 10, 1998.
Under the Administrative Procedure Act ("APA"), an agency's decision may be set aside if the court finds it to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In determining whether an agency's decision is arbitrary or capricious, 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. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989) (internal quotations and citation omitted).
Agency decisions regarding NEPA are reviewed under the arbitrary and capricious standard of the APA. Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 1158, 1183 (9th Cir. 1997). The court may not substitute its judgment for that of the agency regarding environmental consequences of the agency's actions. Id. Rather, the court must simply "ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Id. (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98 (1983)). Decisions regarding NHPA and the Transportation Act are similarly reviewed under the arbitrary and capricious standard. Communities, Inc. v. Busey, 956 F.2d 619, 623-24 (6th Cir. 1992).
Judicial review of agency decisions is generally limited to review of the administrative record. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). The Morongo Band, however, seeks to introduce new evidence, on the basis that
in NEPA cases, the court may extend its review beyond the administrative record and permit the introduction of new evidence where the plaintiff alleges that an [Environmental Impact Statement] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism . . . under the rug.
Id. at 526-27 (alteration in original) (internal quotations and citation omitted). "[T]he court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency's action where such evidence is necessary as background to determine the sufficiency of the agency's consideration." Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 760 n.5 (9th Cir. 1996) (internal quotations omitted). Thus, when the plaintiff alleges that the agency failed to take into consideration all relevant factors, the court may need to "look[ ] outside the record to determine what matters the agency should have considered but did not." Id.
The Tribe contends that the court must apply the "usual canon of construction that a statute designed to benefit Indians must be liberally construed in favor of the Indian beneficiaries." (Citing Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir. 1994), amended on denial of reh' g, 99 F.3d 321 (9th Cir. 1996), cert. denied, 117 S. Ct. 2508 (1997).) Although Rumsey does state that "statutes benefitting Native Americans generally are construed liberally in their favor," id., the statutes at issue in the instant case were not designed to benefit Indians. Moreover, Rumsey also states that this canon of liberal construction does not permit the court to contradict the plain words of a statute. Id.
The Tribe argues that the United States bears a trust responsibility toward Indian tribes, "which, in essence, consists of acting in the interests of the tribes." Skokomish Indian Tribe v. FERC, 121 F.3d 1303, 1308 (9th Cir. 1997). It is true that agencies of the federal government owe a fiduciary responsibility to Indian tribes. Id.; Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir. 1995); Covelo Indian Community v. FERC, 895 F.2d 581, 586 (9th Cir. 1990); Nance v. EPA, 645 F.2d 701, 710 (9th Cir. 1981). The court in Skokomish, however, also stated that the FERC must exercise this responsibility in the context of the Federal Power Act; therefore, the agency properly declined to afford the tribe "greater rights than they otherwise have under the FPA and its implementing regulations." 121 F.3d at 1309. Moreover, in Nance, we noted that procedures provided by the Clean Air Act and EPA regulations (such as consulting with the tribe before taking action) were sufficient to fulfill the EPA' s fiduciary responsibility. 645 F.2d at 711.
In United States v. Mitchell, 463 U.S. 206 (1983), relied on by the Morongo Band, the Supreme Court held that the United States was liable for damages for the breach of its fiduciary duties in the management and operation of Indian lands and resources. Although the Court noted the general trust relationship between the United States and the Indian people, the main reasons for its conclusion were the specific obligations placed on the government by statutes and regulations, and the fact that the government "assume[d] such elaborate control over forests and property belonging to Indians." Id. at 225.
Thus, although the United States does owe a general trust responsibility to Indian tribes, unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency's compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.
The FAA has established 20 Air Route Traffic Control Centers ("Centers") throughout the United States, which are responsible for the control of aircraft during flight. Centers divide their airspace into sectors, each of which is handled by one controller. Each center delegates control over certain sectors to local terminal radar approach control facilities ("TRACONs"), which control aircraft arriving at and departing from major airports. The center is responsible for the initial sequencing of aircraft, providing adequate separation from other traffic, and then transferring control to the local TRACON.
The LA Center is responsible for airspace in parts of Arizona, Nevada, Utah, and southern California. Under the former system, planes approaching LAX from the east passed through two sectors controlled by LA Center, sectors 19 and 20. The Southern California TRACON routes traffic into and out of all major airports in southern California. It controls two LAX arrival sectors, the northern and southern sectors.
LAX has four parallel runways running east-west, grouped in pairs north and south of the terminal. The outer runways are used for arrivals and the inner ones for departures. Under the former system, aircraft arrived from the east on three routes and were merged into one stream by LA Center. LA Center then gave control of this stream to the TRACON responsible for the southern approach to LAX. The northern approach was controlled by a different TRACON and was used primarily by aircraft arriving from the north and west.
Because more planes arrive from the east and south than from the north and west, the southern approach was much busier than the northern approach. That imbalance resulted in delays in the south, as well as imbalances in the workload between the northern and southern controllers. Under the AEP, the FAA reorganized the sectors and moved Route 3, the southernmost route, renaming it Route 4. LA Center's former sector 19 was split into new sectors 19 and 20, with new sector 20 encompassing the northern portion and new sector 19 encompassing the southern portion of the former sector 19. Route 4 is eight miles south of Route 3, allowing it to be controlled by new sector 19, landing on the southern runway, while Routes 1 and 2 now are controlled by new sector 20, landing on the northern runway. However, because Route 4 is further south than Route 3 was, it crosses the Reservation, whereas Route 3 was situated north of the Reservation. Splitting the eastern arrivals into two traffic streams equalized the air traffic controllers' workloads and reduced delay along the southern runway.
NEPA requires federal agencies to prepare an Environmental Impact Statement ("EIS") when they propose to undertake "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); Northwest Envtl. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1535-36 (9th Cir. 1997) ("NEDC"); Inland Empire, 88 F.3d at 757-58. The goals of NEPA are: "(1) to ensure the agency will have detailed information on significant environmental impacts when it makes its decision; and (2) to guarantee that this information will be available to a larger audience." Id. at 758. NEPA is satisfied once this information is properly disclosed; thus, NEPA exists to ensure a process, not a result. NEDC, 117 F.3d at 1536; Inland Empire, 88 F.3d at 758.
The Council on Environmental Quality ("CEQ" ) has promulgated regulations implementing NEPA. See 40 C.F.R. § 1500.1. Under these regulations, an agency is required to prepare an EA in order to determine whether to prepare an EIS or a FONSI. 40 C.F.R. § § 1501.4; 1508.9. A FONSI means the agency has determined that an action will "not have a significant effect on the human environment." 40 C.F.R. § 1508.13. If a FONSI is made, the agency need not prepare an EIS. Id.
The Tribe contends that the FAA violated NEPA, a Department of Transportation ("DOT") Environmental Justice Order, and Executive Order No. 12898 by failing to evaluate or develop alternative routes. As the FAA points out, both the Environmental Justice Order and Executive Order specifically state that they do not create any right to judicial review for alleged noncompliance. See DOT Environmental Justice Order, 62 Fed. Reg. 18377, 18378 (1997) ("The Order is an internal directive to the various components of DOT and does not create any right to judicial review for compliance or noncompliance with its provisions."); Exec. Order No. 12898, 59 Fed. Reg. 7629, § 6-609 (1994) ("This order shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, its agencies, its officers, or any other person with this order.").
NEPA's regulations require agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14. "The 'existence of a viable but unexamined alternative renders an environmental impact statement inadequate.'"Resources Ltd. v. Robertson, 35 F.3d 1300, 1307 (9th Cir. 1994) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)). An agency, however, is "entitled to identify some parameters and criteria -- related to Plan standards -- for generating alternatives to which it would devote serious consideration. Without such criteria, an agency could generate countless alternatives." Id. (quoting Mumma, 956 F.2d at 1522). The "touchstone for our inquiry is whether an EIS's selection and discussion of alternatives fosters informed decision-making and informed public participation." City of Angoon v. Hodel, 803 F.2d 1016, 1020 (9th Cir. 1986) (internal quotations and citation omitted).
The FAA discussed a number of alternative routes in the EA and the ROD, including two, Alternatives 7a and 7b, that were designed to avoid the Reservation. Alternative 7a proposed moving Route 4 either further north or further south in order to avoid crossing the Reservation. The FAA stated that the definition of a new airspace sector required the new route to be at least ten nautical miles south of the existing routes. Thus, moving Route 4 any further north would have precluded the definition of a new airspace sector, frustrating one of the main objectives of the AEP. Moving Route 4 further south would have caused the route to conflict with departures from LAX and arrivals to Ontario International Airport. Alternative 7a therefore was rejected as infeasible and as not accomplishing the project's objectives.
Alternative 7b proposed extending Route 4 further west, thus avoiding the Reservation before turning south along the original proposed path for Route 4. This route was called Route 4b. The FAA discussed the absence of suitable navigational aids in the area, as well as the time and distance required to complete the turn, and concluded that this proposal would place Route 4b too close to the existing routes to allow the definition of a new airspace sector. This alternative therefore was also considered infeasible.
The FAA thoroughly discussed alternatives that would have bypassed the Reservation, but found them unsuitable for accomplishing the primary purpose of the project -- definition of a new airspace sector. As stated in the ROD, "[t]he ability to designate one sector to control aircraft on Routes 1 and 2 and another to control aircraft on Route 4 is the key to the efficiencies sought through this project." "An agency is required to examine only those alternatives necessary to permit a reasoned choice." Association of Pub. Agency Customers, 126 F.3d at 1185. The agency thus fulfilled its obligation under NEPA to "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14.
The Tribe contends that the FAA arbitrarily chose the location of the new airspace sector boundary and ignored proposed alternative routes that infringe upon that boundary. In support, they submit a declaration from their expert, Thomas McCort. [FN 1] Although McCort states that there "appear to be" alternative routes that would fulfill the AEP's purpose without crossing the Reservation, where an issue requires "a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies." Marsh, 490 U.S. at 377; see also id. ("When examining this kind of scientific determination . . . a reviewing court must generally be at its most deferential.") (quoting Baltimore Gas & Elec. Co., 462 U.S. at 103); id. at 378 ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." ). Moreover, the Morongo Band has failed to point to a specific feasible alternative that would have bypassed the Reservation while still allowing the creation of a new sector.
Related to this issue, the parties dispute who has the burden of offering feasible alternatives. It is true that the FAA has the responsibility to "study, develop, and describe appropriate alternatives." 42 U.S.C. § 4332(2)(E). The FAA has fulfilled that requirement, however, by developing and discussing a number of alternatives, including Alternatives 7a, 7b and 4b.
Moreover, in City of Angoon, we stated that the parties claiming a NEPA violation "had not offered a specific, detailed counterproposal that had a chance of success. Those who challenge an EIS bear a responsibility 'to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors' position and contentions.' "803 F.2d at 1022 (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553 (1978)). The Seventh and Eighth Circuits have similarly implied that the burden is on the party challenging the agency action to offer feasible alternatives. See Olmsted Citizens for a Better Community v. United States, 793 F.2d 201, 209 (8th Cir. 1986) ("Olmsted Citizens to succeed on its claim must make some showing that feasible alternatives exist. Absent such a showing Olmsted Citizens asks this court to presume that an adequate alternate site exists somewhere and that the government did not try hard enough to find this site . . . ." ) (internal citations and footnote omitted); River Rd. Alliance, Inc. v. Corps of Eng'rs of United States Army, 764 F.2d 445, 452-53 (7th Cir. 1985) ("The Corps was entitled not to conduct a further study of alternatives unless the plaintiffs were prepared to shoulder the burden of showing that National Marine had overlooked some plausible alternative site -- and they were not."). The FAA has fulfilled its obligation to consider reasonable alternatives.
The Tribe makes four claims regarding the FAA's evaluation of the noise impact. It contends that the FAA: (1) mischaracterized existing noise levels on the Reservation; (2) inappropriately used urban noise significance criteria in evaluating the impact of noise on the Reservation; (3) failed to consider single-event noise levels; and (4) should have prepared an EIS, because the noise violates tribal noise standards. In support of their contentions, the Tribe relies on a declaration by Hans Giroux, an "acoustical specialist."
We have generally rejected plaintiffs' attempts to "engage in a battle of experts" regarding issues such as air quality and noise because, "when specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Price Rd. Neighborhood Ass'n, Inc. v. United States Dep't of Transp., 113 F.3d 1505, 1511 (9th Cir. 1997) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992)); see also Inland Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir. 1993) ("We are in no position to resolve this dispute because we would have to decide that the views of Council's experts have more merit than those of the [government's] experts.") (internal quotations omitted). Nevertheless, we address each of the Tribe's claims seriatim.
The Tribe complains that the FAA did not monitor actual noise levels on the Reservation and that actual background noise levels were below 30 decibels ("dB") and as low as 20 dB, whereas the lowest background noise level used in the EA was 30 dB CNEL. [FN 2] If the FAA overstated background noise levels, the impact of new noise created by the AEP would be underestimated.