AVIATION NOISE LAW
National Parks and Conservation Assn. et al. v. FAA
Cite as: 998 F.2D 1523


U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

NATIONAL PARKS AND CONSERVATION ASSOCIATION, Southern Utah Wilderness Alliance, Sierra Club,
Deborah L. Threedy, Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION, Department of Transportation, Respondents.

NATIONAL PARKS AND CONSERVATION ASSOCIATION, Southern Utah Wilderness Alliance, Sierra Club,
Deborah L. Threedy, Petitioners,
v.
FEDERAL AVIATION ADMINISTRATION, Department of Transportation, Bureau of Land Management,
United States Department of the Interior, Respondents.

San Juan County Board of Commissioners, Real Party in Interest.

Nos. 90-9564, 90-9576 and 91-9513

July 7, 1993


COUNSEL:

William J. Lockhart, Salt Lake City, UT, for petitioners.

John A. Bryson (Peter R. Steenland, Jr. and Barry M. Hartman, Acting Asst. Atty. Gen., Dept. of Justice, Washington, DC, Karl B. Lewis, Office of Asst. Chief Counsel, Northwest Mountain Region, Federal Aviation Admin., Renton, WA, and David K. Grayson, Regional Sol., U.S. Dept. of Interior, Salt Lake City, UT, with him, on the briefs), for respondents.


Before LOGAN, BARRETT and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This appeal arises from the construction of an airport at Halls Crossing in San Juan County, Utah. In No. 90-9564, petitioners seek review of an order of the Federal Aviation Administration (FAA) approving the construction, operation, and funding of the airport. [FN1] In No. 91-9513, petitioners seek review of actions of the Bureau of Land Management (BLM) approving an amendment of a land plan which allowed disposal by patent of BLM public land in San Juan County for use by the airport. [FN2] We reverse. [FN3]

[FN 1] In No. 90-9576, petitioners filed an identical petition for review in the D.C. Circuit, which was transferred to this court and consolidated with No. 90-9564.

FN2. Review of the BLM action was sought in the District Court of Utah under the Administrative Procedure Act, 5 U.S.C. ss 701-706 (1988), and the general federal question jurisdiction grant of 28 U.S.C. s 1331. The District Court ordered the claims transferred to our court pursuant to 28 U.S.C. s 1631 (1988) (transfer to cure want of jurisdiction).

FN3. On April 3, 1991, this court denied petitioners' request for a stay of the construction of the airport, which has since been completed. Both parties stated at oral argument that this does not moot the case, however, because the land could be reconveyed to the BLM or certain restrictions could be placed on the use of the airport.


I.

The airport is located adjacent to the boundary of Glen Canyon National Recreation Area (GCNRA), a unit of the National Park System. Planning for the airport began due to concerns of the National Park Service (NPS) regarding the safety of the existing dirt airstrip. San Juan County sought to sponsor an airport and requested FAA approval and funding.

In accordance with requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. ss 4321 et seq., the FAA prepared an environmental impact statement (EIS) in cooperation with the NPS and the BLM. The BLM administers the various public lands which were considered as sites for the airport. In the EIS, the FAA analyzed its obligations under section 4(f) of the Transportation Act, [FN4] section 2208 of the Airport and Airways Improvement Act (AAIA), [FN5] and section 308 of the Federal Aviation Act (FAA Act). [FN6] Two of the potential sites for the airport were located on public lands administered by the BLM pursuant to the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. ss 1701 et seq. (1986). A portion of the site finally selected was located on land that had been designated an "area of critical environmental concern" (ACEC) under sections 1702(a) and 1712(c) of FLPMA by a 1989 Proposed Resource Management Plan (RMP). [FN7] The BLM also governed the sites according to the 1973 Management Framework Plan. [FN8] The RMP, when finalized, would have required scenic protection for corridors on both sides of Utah Highway U-276, which subsequently included the airport site. The 1989 RMP nominated the area for protection as the Scenic Highway Corridor ACEC. Therefore, in order to permit conveyance, the BLM had to amend the land plan, which required compliance with NEPA.

[FN 4] The Secretary may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area ... only if--(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use. 49 U.S.C. s 303(c) (1988) (hereinafter "section 4(f)").

[FN 5] It is declared to be national policy that airport development projects authorized pursuant to this chapter shall provide for the protection and enhancement of the natural resources and the quality of the environment of the Nation. In implementing this policy, the Secretary ... shall authorize no such project found to have significant adverse effect unless the Secretary shall render a finding, in writing, following a full and complete review ... that no feasible and prudent alternative exists and that all reasonable steps have been taken to minimize such adverse effect. 49 U.S.C.App. s 2208(b)(5) (1988) (hereinafter "section 2208").

[FN 6] "No Federal funds ... shall be expended ... except upon the written recommendation ... that such landing area or facility is reasonably necessary for use in air commerce or in the interests of national defense." 49 U.S.C.App. s 1349(a) (1988) (hereinafter "section 308").

[FN 7] "To guide the use of [public domain lands], and to provide wise management of the public's natural resources, BLM develops land-use plans. These plans provide an agreement between the government and the citizens on how the public lands and resources will be managed, allocated, and used." Foreword, San Juan Proposed Resource Management Plan (April 1989), Rec. (No. 91-9513), supp. vol. I (hereinafter 1989 RMP).

[FN 8] A Management Framework Plan provides step-by-step instructions as to the management of a particular public land resource area. Each individual management decision (i.e., to remove livestock during the summer) is listed along with the action required to achieve the decision and the supporting rationale.

The FAA issued the draft EIS (hereinafter DEIS) on January 17, 1990. On the same day, the BLM gave notice of its intention to amend the 1973 Management Plan. The notice stated that the BLM would rely on the FAA's EIS as the basis for compliance with NEPA. The final EIS (hereinafter FEIS) was issued in May 1990. The Record of Decision approving the airport and conveying the land was issued in August 1990. In deciding to fund the airport, the FAA determined there would be no significant impacts on the recreational experience of visitors at the Glen Canyon recreation area. To reach this decision, the FAA considered the impact of the airport on several aspects of the recreation area and its visitors. One of the main concerns was the impact of airplane noise. The FAA undertook a noise impact analysis and determined that there would be no significant impact on the visitors. The finding of no significant impact led the FAA to determine the airport would not "use" the resources of the area, thereby not triggering the requirements of section 4(f) of the Transportation Act. [FN9]
[FN 9] Both the Environmental Protection Agency (EPA) and the Department of Interior (DOI) objected to the FAA's conclusions. The EPA specifically objected to the use of voluntary mitigation measures and stated "the FAA should develop specific noise monitoring ... [and] require the airport sponsor to provide adequate long-term monitoring of noise sensitive recreational areas to assess the change in the ambient noise environment." Rec. (No. 90-9564), supp. vol. V, doc. 21, at 2. The DOI also suggested stricter mitigation requirements and objected to the failure of the FAA to utilize the noise audibility information provided by the NPS. Rec. (No. 90-9564), supp. vol. VI, doc. 17 at # 448.
Petitioners contend the FAA incorrectly determined that the noise impact of the airport would have "no significant impact" on the surrounding environment. They specifically assert that the FAA ignored relevant studies on noise impact including one prepared by the NPS, and that the FAA failed to consider relevant factors in determining the noise impacts. Petitioners also contend that the BLM failed to give the required notice of the land plan amendment and of its intent to change the designation of the Scenic Highway Corridor, and failed to comply with its duties under FLMPA by not providing a rational assessment of the effect of the conveyance on the existing land plans. Finally, petitioners argue that the BLM's reversal of its position with respect to the Scenic Corridor ACEC constitutes arbitrary and capricious action.

Respondents dispute each of petitioners' contentions. They argue that the noise impact analysis considered all relevant factors under the methodology chosen by the FAA, and that the EIS is sufficient in meeting the BLM's requirements under FLMPA. They also assert that the 1989 RMP was only a proposal and therefore the change in designation of the land was not arbitrary and capricious action.


II.
JURISDICTION

We must first determine whether jurisdiction to review petitioners' claims rests with this court, the district court, or both courts. As we have noted, the action petitioners filed in district court was transferred to this court after the district court held it lacked subject matter jurisdiction.


A. The FAA Decision

The FAA Act in section 1006(a) vests exclusive jurisdiction in the Courts of Appeals for review of "any order ... issued by the Board or Administrator under this Act." Act of Aug. 23, 1958, 72 Stat. 795. [FN10] Petitioners argue that their claims do not challenge action taken under the FAA Act but rather actions taken under the AAIA, section 4(f), NEPA, the National Park Service Organic Act, 16 U.S.C. s 1 (1992), and the Airports In and Near National Parks Act, 16 U.S.C. s 7a (1992). [FN11] They further contend that the actions of the BLM were clearly not taken under the FAA Act. Respondents assert that all of the actions challenged took place pursuant to the basic determination to fund the airport as set forth in the FAA's Record of Decision. As required by section 308 of the FAA Act, the Secretary must determine that the airport is "reasonably necessary" for use in air commerce before funds are approved. Respondents also contend that the BLM actions were taken in response to a request by the FAA to convey the land and are therefore part of the overall FAA airport authorization process.

[FN 10] The Federal Aviation Act was partially revised in 1978. The unrevised portion is designated as Title 49 Appendix. Petitioners argue that the original version of the Aviation Act provided for jurisdiction of orders issued "under this Act," while the revised version uses the phrase "under this chapter." Petitioners contend this change has no legal effect. The jurisdiction is listed in 49 U.S.C.App. s 1486(a) and made exclusive in s 1486(d). Thus, the relevant cases often discuss section 1486, as opposed to section 1006, as do petitioners.

[FN 11] Petitioners originally requested review of the FAA's determination under the FAA Act that the airport was reasonably necessary for use in air commerce. In their memorandum addressing the jurisdictional issues, petitioners stated that "no claim will challenge that 'finding.'" Petitioners' Memorandum on Jurisdictional Issues at 9. Petitioners therefore argue that there are no challenged actions taken under the FAA Act.

In considering our jurisdiction over the challenged FAA actions, we first note some basic propositions.

[W]hen two jurisdictional statutes draw different routes of appeal, the well-established rule is to apply only the more specific legislation. See 1A C. Sands, Statutes and Statutory Construction s 23.16 (4th ed. 1972). "[T]he rule that a precisely drawn, detailed statute preempts more general remedies" flows from the Congressional intent to carve out from the broader scheme a specific exception for this particular type of claim. Block v. North Dakota, ex rel. Bd. of Univ. and School Lands, 461 U.S. 273, 285, 103 S.Ct. 1811, 1818, 75 L.Ed.2d 840 (1983).
California Save Our Streams Council v. Yeutter, 887 F.2d 908, 911 (9th Cir.1989). Chapter 20 of the Transportation Act created the FAA. 49 U.S.C. s 1341(a). The jurisdictional provision in section 1006 of the FAA Act is also found in Chapter 20 of the Transportation Act. This is of some significance as "[s]tatutory review in the agency's specially designated forum prevails over general federal question jurisdiction in the district courts." Media Access Project v. F.C.C., 883 F.2d 1063, 1067 (D.C.Cir.1989). See also City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979); General Elec. Uranium Management Corp. v. Dep't of Energy, 764 F.2d 896, 903 (D.C.Cir.1985) ("'where it is unclear whether review jurisdiction is in the district court or the court of appeals the ambiguity is resolved in favor of the latter'") (quoting Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1197 (7th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984)); Connors v. Amax Coal Co., 858 F.2d 1226, 1231 (7th Cir.1988) ("Generally, when jurisdiction to review administrative determinations is vested in the courts of appeals these specific, exclusive jurisdiction provisions preempt district court jurisdiction over related issues under other statutes."). Moreover, in determining which orders fall under the FAA Act, the term "order" should be construed broadly. State of New York v.

As the court in Media Access Project noted, other courts have addressed the issue of which FAA decisions encompass an "order" under the FAA Act and therefore receive direct review in the appellate courts. [FN12]

[C]ourts [have] found that decisions of the [FAA] to proceed with certain plans without requiring environmental impact statements were made pursuant to the agency's organic statute ... and not under [NEPA].... Thus, the district courts did not have jurisdiction over challenges to the FAA's action as inconsistent with NEPA; rather, the court of appeals' jurisdiction was exclusive.
Media Access Project, 883 F.2d at 1067 (citing City of Rochester, 603 F.2d at 936; City of Alexandria v. Helms, 728 F.2d 643, 645 n. 2 (4th Cir.1984); Suburban O'Hare Comm'n v. Dole, 787 F.2d 186, 192-193 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 169, 93 L.Ed.2d 106 (1986)).
[FN 12] Petitioners contend that this court has limited the reach of ancillary jurisdiction in FAA cases. City of Aurora v. Hunt, 749 F.2d 1457 (10th Cir.1984). We do not believe that decision is on point. First, the reach of section 1006 of the FAA Act was not raised. Second, our decision in City of Aurora rested upon two grounds: no independent jurisdictional basis and a failure by the City to comply with procedural requirements. Finally, the challenged action in City of Aurora was the formation of a committee, not the final action of the committee.
Moreover, we note that NEPA does not provide independent grounds for district court jurisdiction. "[W]hen review of an agency order is at issue and when Congress has vested exclusive jurisdiction over that review in the Courts of Appeals, NEPA does not provide independent grounds for district court jurisdiction." Helms, 728 F.2d at 646 (footnote omitted).

While factually different in that the FAA here did prepare an EIS, we believe the above reasoning applies to the case before us. The determinations regarding the environmental impact of the airport were necessary to the FAA's decision to fund the proposed airport. While these determinations were made under statutes other than the FAA Act, all were taken under the FAA's organic statute and in regard to the FAA's basic mission: the regulation of the nation's air transport system. We therefore conclude that we have jurisdiction to review the challenged FAA actions.


B. The BLM Decision

Somewhat more difficult to determine is whether we have jurisdiction over the challenged actions of the BLM. Under the Administrative Procedure Act, 5 U.S.C. ss 701 et seq. (1988), and the general grant of federal question jurisdiction, 28 U.S.C. s 1331, review of BLM decisions generally rests in the district courts. In order to find appellate jurisdiction in this case, we must determine that the actions of the BLM were taken to facilitate the actions of the FAA, and that such facilitation places the BLM's actions under our jurisdiction. Pursuant to section 516 of the AAIA Act, 49 U.S.C.App. s 2215(b), the Secretary of the FAA requested the BLM to convey the land for the airport as "reasonably necessary" to the airport project.

Upon receipt of a request from the Secretary ... the head of the [BLM] shall determine whether the requested conveyance is inconsistent with the needs of the [BLM].... If the [BLM] determines that the requested conveyance is not inconsistent with the needs of the [BLM], the [BLM] is hereby authorized and directed ... to perform any acts and to execute any instruments necessary to make the conveyance requested.
Id. Thus, while the BLM's decision to convey the land focused on statutes separate from the FAA Act, the BLM's decision-making process was initiated by the provisions of the FAA Act. Contrary to petitioners' argument, the BLM was required to consider the request, at the very least to determine if the project was inconsistent with the needs of the BLM. See id. ("the head of the [BLM] shall determine....") (emphasis added). Moreover, if the BLM had determined that the land could not be conveyed, the FAA's project would not have been able to proceed on that land.


Continued in Part Two