The FAA based its 30 dB CNEL background noise level on measurements by the
National Park Service and a private consultant. The National Park Service measured sound on and near the rim of the Grand Canyon, finding noise levels from 34-48 dB at actively visited areas and in the low 20's in more remote areas. Although the Park Service did not use the Ldn or CNEL standards, the FAA stated that a steady sound level of 23 dB for 24 hours would correspond to 30 dB CNEL. The consultant whom the FAA used measured noise in Scottsdale and Tucson, Arizona, as well as a rural area outside Phoenix, and showed
background noise levels in sparsely developed desert areas to be below 40 Ldn or CNEL. Based on these two measurements, the FAA concluded that 30 dB CNEL was "a reasonable estimate of a background noise level in completely undeveloped desert and mountain areas."
Although noise levels on the Reservation may not seem comparable to those in the heavily-visited Grand Canyon, the FAA relied on the Park Service's measurement in more remote locations of the Grand Canyon, rather than the actively visited areas. Furthermore, it is not for the court to assess whether a "rural area" outside Phoenix would have background noise levels similar to those on the Reservation. The Morongo Band has failed to establish that the FAA's decision to use the 30 dB CNEL level was arbitrary or capricious.
The Tribe contends that the FAA inappropriately used urban noise significance criteria in assessing the noise impacts on the Reservation. The Tribe apparently argues that the FAA claims that average daily noise levels above 45 dB CNEL do not have any impact on land uses and that noise levels below 65 dB CNEL cannot have a significant impact on ordinary activities. However, the portion of the EA that the Tribe cites deals with the effects of changes in the CNEL depending on the existing noise exposure, rather than the effect of an existing CNEL. The EA does state that 65 dB CNEL is the threshold above which aircraft noise is considered to cause a significant adverse impact in residential areas. The EA then goes on to explain, however, that, if existing CNEL noise exposure is 45-60 dB, an increase of 5 dB would have a marginal impact, whereas if existing CNEL is greater than 65 dB, an increase of only 1.5 dB would have a significant impact. Moreover, in the EA's discussion of the noise impacts of its various alternatives, its focus was on the effect of the increase, not on the actual existing noise level: "Even in undeveloped areas with very low background noise levels, increases in total ambient noise with Alternatives 5A and 5B are far too small to be considered either significant or marginal impacts."
The Morongo Band analogizes to National Parks and Conservation Ass'n v. FAA, 998 F.2d 1523, 1533 (10th Cir. 1993), in which the Tenth Circuit concluded that the FAA's determination of no significant impact on a recreational area was irrational, because the agency provided no empirical evidence to support the claim, basing its determination only on a subjective evaluation of the impact of noise on recreational users of a national park. Unlike National Parks and Conservation Ass'n, however, where the FAA argued that its analysis needed to be "subjective and inexact" because there was "no acceptable methodology to measure noise impacts," id., the FAA in the instant case performed a detailed analysis using figures obtained from the LAX Master Plan and the Southern California TRACON to estimate the numbers of aircraft and relied on its standard methodology for airport noise studies. This case therefore is distinguishable from National Parks and Conservation Ass'n, because the FAA's methodology and reasoning cannot be described as irrational or subjective. See id. ("The FAA explicitly rejected the Ldn methodology and performed the noise impact analysis based on various assumptions and subjective values which did not provide us with a 'rational' decision that we could assess.").
Finally, in response to another petitioner's challenge to the FAA's use of 65 Ldn as the threshold of significance for noise impacts, we stated that "NEPA authorizes federal agencies to develop their own methods and procedures in regard to environmental analysis." Seattle Community Council Fed'n v. FAA, 961 F.2d 829, 833 (9th Cir. 1992). The Tribe has failed to establish that the FAA's methodology was arbitrary or capricious.
The Tribe further contends that the FAA was required to consider single-event noise levels rather than average daily noise levels because of the sensitive cultural and religious uses of the land. However,
Neither the CEQ regulations nor the FAA's own regulations require single-event testing in addition to or in lieu of cumulative testing. In fact, the FAA's regulations appear to require the use of cumulative data. "The exposure of individuals to noise resulting from the operation of an airport must be established in terms of yearly day-night average sound level . . . ." 14 C.F.R. § 150.9(b) (1991) (emphasis added).
Id.; cf. Busey, 956 F.2d at 624 (upholding the FAA's use of cumulative noise impact methodology as opposed to individual-event noise analysis as an exercise of the agency's discretion).
The Morongo Band points to National Parks and Conservation Ass'n as evidence that the FAA is aware of the limitation of average noise criteria and so has used single-event noise levels to measure noise impacts on undeveloped areas. However, as discussed above, the Tenth Circuit reversed the FAA' s decision in that case, concluding that the FAA's rejection of the Ldn methodology and subjective evaluation of noise impacts was irrational. 998 F.2d at 1533. The Tribe has pointed to no authority that would require us to conclude that the FAA's decision to rely on average noise levels, rather than single-event noise impacts, was arbitrary or capricious.
Finally, the Tribe argues that the FAA violated its own regulations, which require preparation of an EIS if the project "is determined not to be reasonably consistent with plans or goals that have been adopted by the community in which the project is located." (Quoting DOT, FAA Order 1050.1D, "Policies and Procedures for Considering Environmental Impacts," Dec. 5, 1986 ("FAA Order 1050.1D").) Although, understandably, the Tribe may be unhappy with any increase in noise that interferes with its traditional practices, it fails to put forth any evidence of "plans or goals . . . adopted by the community" with which the AEP is inconsistent. Unfortunately for the Morongo Band, it appears that its quarrel is with the result reached by the EA. As we have stated, however:
NEPA does not mandate particular substantive results, but instead imposes only procedural requirements. Thus, in considering a challenge under NEPA, [we] may not substitute [our] judgment for that of the agency concerning the wisdom or prudence of a proposed action. Under our "rule of reason," we determine whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences by making a pragmatic judgment whether the [EIS's] form, content and preparation foster both informed decision-making and informed public participation.
Laguna Greenbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9th Cir. 1994) (alterations in original) (citations and internal quotations omitted).
The Tribe contends that the FAA improperly segmented the AEP from a larger project, the LAX Expansion Project, for which the FAA is preparing an EIS. The Tribe claims that: (1) the two projects are "connected" and thus should be considered in the same EIS; (2) the FAA should have considered the growth-inducing impact of the AEP on the Expansion Project; and (3) the FAA failed to consider the cumulative impact of the two projects.
CEQ regulations require "connected actions," meaning those that are closely related, to be discussed in the same EIS. 40 C.F.R. § 1508.25(a)(1). Although federal agencies are given "considerable discretion" in defining the scope of an EIS, connected actions must be considered together in order to preclude an agency from "divid[ing] a project into several smaller actions, each of which might have an insignificant environmental impact when considered in isolation, but which taken as a whole have a substantial impact." Northwest Resource Info. Ctr., Inc. v. National Marine Fisheries Serv., 56 F.3d 1060, 1068 (9th Cir. 1995) ("NRIC"). Actions are connected if they: "(i) Automatically trigger other actions which may require environmental impact statements. (ii) Cannot or will not proceed unless other actions are taken previously or simultaneously. (iii) Are interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. § 1508.25(a)(1).
In Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), we concluded that the construction of a road in a forest and the sale of timber were connected actions within the meaning of the CEQ regulations. Because the timber sales could not proceed without the road, and the road would not have been built but for the timber sales, the two were "inextricably intertwined." Id. at 759. The analysis of Thomas was closely followed in Save the Yaak Comm. v. Block, 840 F.2d 714, 720 (9th Cir. 1988), in which we similarly found a "clear nexus" between timber sales and the improvement of a road. In Save the Yaak Comm., there was "no indication that the road was reconstructed for any . . . reason" other than the timber sales. Id.
By contrast, we rejected a claim that actions were "connected" when each of two projects would have taken place with or without the other and thus had "independent utility." NRIC, 56 F.3d at 1068. In NRIC, both an ongoing salmon transportation program and proposed river flow improvement measures "could exist without the other, although each would benefit from the other' s presence." Id. at 1069 (quoting Sylvester v. United States Army Corps of Eng'rs, 884 F.2d 394, 400 (9th Cir. 1989)).
Unlike Thomas and Save the Yaak Comm., but like NRIC, the AEP and the LAX Expansion Project have independent utility. There is no indication in the EA or ROD that the AEP would not have been implemented apart from the Expansion Project. On the contrary, the primary purpose of the AEP was to deal with existing problems of delay and inefficiency in the arrival system.
In describing the need for the AEP, the FAA did discuss the increase in LAX air traffic since 1980 and the projected increase in the future. The FAA stated that "the current problems will only become more serious as traffic at LAX increases." However, the stated purpose of the project was "to improve the efficient use of airspace, reduce air traffic delays, balance controller workload, and improve coordination among controllers." Thus, although the FAA was concerned about the pressure that increased traffic would place on the system, the purpose of the AEP was to deal with existing problems caused by the inefficient "use of airspace for arrivals to LAX from the east." The ROD similarly focused on the delay and inefficiency caused by the former system and stated that the AEP would "improve the safety of air traffic operations by reducing congestion in the airspace and air traffic controller workloads." Thus, although growth at LAX would exacerbate the problems being addressed by the project, the AEP was necessarily independent of any future expansion of the airport.
The Morongo Band contends that the FAA improperly failed to consider the "growth-inducing" impact of the AEP, as required by 40 C.F.R. § 1508.8(b) (defining "indirect effects" as those "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable," including "growth inducing" effects). The Tribe's argument centers on the point that the AEP removes a constraint to growth at LAX because, without the project, growth could not occur safely.
The EA does not discuss the growth-inducing impact of the AEP. This fact, however, is not dispositive. In Seattle Community Council Fed' n, the FAA did not consider cumulative effects caused by the expected increase in air traffic after changes in flight patterns were implemented. In considering whether that failure required remand for the FAA to consider the issue, we focused on the stated purpose of the plan and concluded that, although the increased efficiency and reduction in delays would "necessarily allow the volume to increase," the plan was intended to and did deal with the existing air traffic. 961 F.2d at 835. The increased air traffic caused by the plan therefore was not considered to be a growth-inducing effect under 40 C.F.R. § 1508.8(b). Id.
Similarly, in City of Carmel-by-the-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1162 (9th Cir. 1997), we acknowledged that a planned freeway "may induce limited additional development," but reasoned that it was "the existing development that necessitate[d] the freeway." By contrast, in City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975), the area was not already well developed and so the construction of a freeway interchange would necessarily lead to development.
Growth certainly may be a foreseeable indirect effect of the AEP. However, the project was implemented in order to deal with existing problems; the fact that it might also facilitate further growth is insufficient to constitute a growth-inducing impact under 40 C.F.R. § 1508.8(b).
The Tribe argues that the FAA failed to consider the cumulative impact of the AEP with the Expansion Project. An agency is required to consider cumulative impacts in an EIS, meaning actions that "when viewed with other proposed actions have cumulatively significant impacts." 40 C.F.R. § 1508.25(a)(2); see Association of Pub. Agency Customers, 126 F.3d at 1184; City of Carmel-by-the-Sea, 123 F.3d at 1160. A cumulative impact is defined as:
the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 C.F.R. § 1508.7.
In its discussion of cumulative actions, the FAA noted that one action that could have a cumulative impact was an "increase in the number of flights to LAX using the proposed new alternative flight routes." The agency concluded, however, that this increase would not have a significant impact, noting that the noise consequences were considered in Section 4.1.
Other actions potentially having a cumulative impact were increases in traffic at other airports in the area affected by the AEP. Regarding this concern, the FAA stated that "the noise analysis has demonstrated conclusively that the increases in noise attributable to the proposed project are extremely small" and further pointed out that other airport projects would deal with noise impacts in their own EAs or EISs. Finally, the FAA noted that the AEP would have no significant impact on air quality and explained why other increases in high altitude air traffic in the area affected by the AEP would not affect air quality in the Los Angeles coastal basin.
Assuming that the cumulative impacts of the Expansion Project should have been considered in the EA, because it appears to be a project that is both foreseeable and similar to the AEP, as both projects deal with increasing arrivals at LAX, [FN 3] see Resources Ltd., 35 F.3d at 1306 ("Where several foreseeable similar projects in a geographical region have a cumulative impact, they should be evaluated in a single EIS.") (internal quotations and citation omitted), this requirement was met. The FAA relied on projections from the LAX Master Plan study and the Southern California TRACON in order to derive data for its noise analysis. Thus, when the agency made projections about aircraft arrivals in the years 2000 and 2015 throughout its noise analysis, it necessarily considered the cumulative impact of increased traffic due to the Expansion Project. The projected increases in arrival traffic at LAX, and the resulting impacts on noise levels, were fully integrated into the FAA's noise analysis, thus fulfilling the agency's requirement to consider cumulative impacts.
NHPA requires a federal agency to "take into account the effect of [any] undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." 16 U.S.C. § 470f. The agency also must give the Advisory Council on Historic Preservation a "reasonable opportunity to comment with regard to such undertaking." Id. In consultation with the State Historic Preservation Officer ("SHPO"), the official responsible for representing the interests of the State and its citizens, 36 C.F.R. § 800.1(c)(1)(ii), the agency "shall make a reasonable and good faith effort to identify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register." 36 C.F.R. § 800.4(b). An agency has satisfied the NHPA process if it shows that the project will have no adverse effect on historic resources, submits documentation of this finding to the SHPO for review, and the SHPO does not object within 15 days. 36 C.F.R. § 800.5(b).
The Tribe contends that the FAA violated NHPA by failing to prepare an EIS as required by NHPA and FAA Order 1050.1D and by failing to obtain the Tribe's consent for the AEP.
The Morongo Band cites FAA Order 1050.1D, ¶ 37.a(1), which states that an EIS shall be prepared if an FAA action has an effect that is "not minimal" on properties protected by NHPA. In the EA, the FAA stated that the only change caused by the AEP would be increased "high altitude aircraft overflights." According to the EA, the altitude of LAX traffic overflying the Reservation would be 18,000 feet above sea level, or 16,000 feet above ground level. Thus, the FAA's noise, land use, and visual impact studies all concluded that the project would cause no adverse impacts, leading to the conclusion that historic resources would be "unaffected" by any of the alternatives. Id. Because the effect would be minimal, an EIS was not required pursuant to FAA Order 1050.1D.
The Morongo Band relies on Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995), in which the Tenth Circuit held that the agency did not make a reasonable effort to identify property eligible for the National Register because it failed to follow up on information indicating the existence of such property. Id. at 860 ("a mere request for information is not necessarily sufficient to constitute the 'reasonable effort' [NHPA] requires" ). The court also held that the Forest Service failed to make a good faith effort to identify cultural property in the canyon, because the agency told the SHPO that there was no evidence of such property when, in fact, the agency had withheld from the SHPO two affidavits alluding to sacred sites and traditional ceremonies in the canyon. Id. at 862.
Like the Forest Service in Pueblo of Sandia, the FAA made only a "request for information" and did not follow up on a letter from the Tribe, although the letter indicated the possibility of historic or cultural property in the area. This case, however, is distinguishable from Pueblo of Sandia. Here, the FAA's conclusion was not based on a finding of no cultural properties in the area, but on the fact that the noise and other studies showed that there would be no impact on any type of property in the project area. Thus, the failure to identify specific potential sites or properties is irrelevant. The FAA informed the California SHPO of its finding that the AEP would have "no effect on cultural values," submitting as documentation the draft EA. [FN 4] The SHPO had no objection to the FAA's determination of no effect on historic properties because of "the unique high altitude nature of the undertaking." The Morongo Band has failed to establish that the agency's studies were arbitrary or capricious; thus, the FAA did not violate NHPA.
The Tribe argues that NHPA required the FAA to obtain the Tribe's consent before implementing the AEP. The regulations state:
The Agency Official, the [SHPO], and the Council should be sensitive to the special concerns of Indian tribes in historic preservation issues, which often extend beyond Indian lands to other historic properties. When an undertaking will affect Indian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement.
36 C.F.R. § 800.1(c)(2)(iii).
Consent is required, however, only if the action is found to have an effect on the land and, here, a finding of no effect was made. The Tribe cites Attakai v. United States, 746 F. Supp. 1395, 1408 (D. Ariz. 1990), which discusses the importance of an Indian tribe' s concurring "in any agreement regarding undertakings which affect its lands." The projects in Attakai, however, involved the construction of three fence lines, a pipeline and a tank on the land. Id. at 1399. There is no question that the projects affected the Indian lands in Attakai, whereas the effect in the instant case is much more remote. Where, as here, any effect is insignificant or minimal, the FAA was not required to obtain the Tribe's consent before implementing the AEP.
Finally, the Tribe claims that the FAA violated section 4(f) of the Transportation Act, 49 U.S.C. § 303(c), which provides that a transportation project may "use" historic sites only if (1) there is no prudent and feasible alternative, and (2) the project includes all possible planning to minimize harm to the site resulting from the use. "The term 'use' is to be construed broadly, not limited to the concept of a physical taking, but includes areas that are significantly, adversely affected by the project." Adler v. Lewis, 675 F.2d 1085, 1092 (9th Cir. 1982). The section's provisions, however, do not apply unless there is a determination that the land is to be "used." Id.
The EA quotes an FAA Order that provides that an action is compatible with the normal activity associated with land and, therefore, does not constitute "use" under section 4(f) if the action "would not affect the normal activity or aesthetic value of" the land. (Quoting FAA Order 5050.4A, Airport Environmental Handbook.) The FAA acknowledged that aircraft noise levels that "substantially interfere" with the use or value of section 4(f) property would constitute constructive use. The noise analysis in Section 4.1 concluded, however, that the resulting noise would not be "loud enough to create significant impacts anywhere along either of the proposed alternative routes (Routes 4 and 4a)." The FAA also discussed potential visual impacts and concluded that the project would not cause significant visual impacts.
"[S]ection 4(f) will not be invoked where the activity complained of will have only an insignificant effect on the existing use of the parkland." Allison, 908 F.2d at 1030. The FAA undertook a thorough analysis in the EA and concluded that the AEP would have only an insignificant impact on the existing use of the land. We do not find that this decision was arbitrary or capricious.
The FAA's decision to implement the AEP was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The FAA did not violate NEPA, NHPA, or the Transportation Act. Accordingly, the Morongo Band's petition for review is
DENIED.