1. The FAA Focuses Only on the Incremental Impact of the Project

In determining that the noise impacts are not significant, the EA focuses on the difference between the noise impacts from the predicted traffic at the old airport and the predicted traffic at the new airport. [FN 4] Thus, the analysis uses a "moving baseline." [FN 5] The EA uses this moving baseline throughout the noise analysis including the discussions of INM [FN 6] predictions of DNL, [FN 7] predictions of the number of visitors that will be highly or moderately annoyed by aircraft noise, and the impacts to natural quiet. When reporting the results of the supplemental noise study, the EA states that "[t]he increase in noise levels that would result from the development of a replacement airport is negligible. It must be remembered, and it is so indicated in the analysis, that aircraft traffic will increase even if the replacement airport is not constructed." App. at 95. This statement makes it clear that the focus of the noise analysis is on the incremental impact of the project and not the total noise impact that will result from the relocated airport. This becomes even more clear in the results reported for each noise metric used by the FAA to analyze the potential impacts to Zion.

[FN 4] The FAA has made predictions about the number of various types of flights that will utilize the St. George airport in 2003, 2008, 2013, and 2018, both if the replacement airport is built and if it is not built. App. at 82 (Table 4.1.1). In the year 2008, the greatest difference is expected between the number of flights that would utilize the current St. George airport versus the replacement airport. The EA estimates that in 2008, there will be 5,840 flights per year if the replacement airport is not built, and 9,490 flights per year if the replacement airport is built. Thus, the replacement airport is expected to result in an increase in commercial traffic of approximately 39% in 2008.

[FN 5] Superintendent of Zion, Martin C. Ott, complained about the "moving baseline" in comments he provided to the FAA on the draft EA. "Putting aside our concerns with the methodology, when current noise levels in the document are compared to projected future noise levels at the points closest to the park, the impacts are much greater than the conclusions suggest. The use of this 'moving baseline' combined with the lack of adequate cumulative impacts assessment obscures much of the impact to the park." App. at 496.

[FN 6] The Integrated Noise Model (INM) is a computer program that accepts input about aircraft and calculates noise propagation through a simplified atmosphere. Exhibit 2, #7.

[FN 7] Day Night Noise Level (DNL) is "a 24-hour, time-weighted energy average noise level based on the A-weighted decibel. It is a measure of the overall noise experienced during an entire day. The time-weighted refers to the fact that noise that occurs during certain sensitive time periods is penalized for occurring at these times." App. at 317. DNL averages both the noise that occurs over the period of a day as well as noise that occurs over an entire year. Exhibit 2, #7.

First, the EA reports the estimated "DNL increases that would result due to implementation of the replacement airport over the use of the existing airport" for different sites for the years 2008 and 2018. Based on the DNL metric, [FN 8] the EA finds that "there will be little difference associated with the replacement airport, as compared with the existing airport." App. at 96.
[FN 8] Although this Court has given the FAA tremendous deference in the use of DNL to measure noise impacts, Sierra Club v. United States Department of Transportation, 753 F.2d 120, 128-30 (D.C. Cir. 1985); City of Grapevine v. Department of Transportation, 17 F.3d 1502, 1508 (D.C. Cir. 1994), Grand Canyon Trust strongly objects to the use of this noise metric to analyze impacts to national parks. NPS has also consistently objected to the use of DNL in the setting of National Parks. For example, comments provided to the FAA by Superintendent of Zion, Martin C. Ott, state that "[t]he National Park Service has consistently commented to the FAA on airport and airspace actions regarding Zion and other parks that Day Night Noise Level (DNL) has almost no relevance to assessing impacts on park resources and visitors. It is designed for residents of urban airport environments, not for park resources or visitors." App. at 496. Use of DNL is completely inappropriate for assessing the impacts to Zion because (1) it is only designed to predict aircraft noise levels very close to an airport, (2) the analysis does not take into account the nature of the environment where the impacts will be felt (such as ambient background levels, complex terrain, or meteorological conditions), (3) it averages the sound that occurs throughout a 24-hour period and then averages again over the entire year, which provides for no indication of the impact of individual overflights, (4) it penalizes quiet wilderness nights by adding 10 decibels to sound levels measured at night, (5) it is designed to protect health and welfare of people, not natural quiet. Exhibit 2, #7. According to aircraft noise expert Jim Foch, the "FAA often claims no significant impact even close to a major urban airport with a thousand or more very loud commercial jet operations per day." Id. This type of impact is completely unacceptable in a national park.
Second, using a metric called the peak hour LEQ, [FN 9] the EA predicts the number of visitors to Zion that will "experience moderate to extreme annoyance due to aircraft noise." App. at 97. Utilizing a threshold of 35 dBA, [FN 10] the EA finds that if the replacement airport were not constructed 3 to 15% of park visitors would experience moderate to extreme annoyance due to aircraft noise, and that if the replacement airport is constructed the number will increase to 4 to 15% of park visitors. The EA also examines the peak hour LEQ utilizing a threshold of 45 dBA, which was criticized by Superintendent of Zion, Martin C. Ott. App. at 496. At this threshold, the EA indicates that 2 to 7% of park visitors would experience moderate to extreme annoyance due to aircraft noise with the existing airport. If the new airport were constructed, the number would increase to 2 to 8%. App. at 97. The EA then concludes, "There is little difference in potential annoyance from aircraft noise to park visitors for the existing or replacement site." App. at 97.
[FN 9] Equivalent Noise Level (LEQ) is the "sound level corresponding to a steady-state A-weighted sound level containing the same total energy as a time-varying signal over a given sample period." App. at 317.

[FN 10] The A-weighted decibel scale is designated by dBA. This measurement takes into account the fact that the human ear is not equally sensitive to all frequencies. Every day sounds normally range from 30 dBA (quiet) to 100 dBA (very loud). App. at 305.

However, the EA does not address the total impact -- i.e. the fact that if the replacement airport is built, there is a possibility that 15% of all park visitors will be moderately or extremely annoyed due to airplanes flying overhead. As stated in comments made by Cynthia Cody, Chief, NEPA Unit, Office of Ecosystems Protection and Remediation, Environmental Protection Agency, "The results of this study predict 2 to 9 percent of park visitors may report moderate to extreme annoyance associated with increased flights from the proposed new airport. Although this does not significantly differ from the 2 to 7 percent of visitors with the same response associated with the expected number of flights with the existing airport, there is a need to consider mitigation that would ameliorate this impact since the number of park visitors affected is significant from either alternative." App. at 506. The EA does not respond to this comment and contains no analysis of the significance of the 2 to 9% or the 4 to 15% level of annoyance.

Finally, the supplemental noise analysis addresses the "Impacts to the Natural Quiet of the Park." App. at 98-99. The EA recognizes that there are currently approximately 31 operations per day that fly over or near Zion that are associated with the existing airport. App. at 98. For the year 2008, the FAA expects this number to increase to 48 flights per day without the replacement airport and 54 flights per day with the replacement airport. App. at 99. Thus, as stated in the EA, the replacement airport is projected to add 6 additional flights per day over or near Zion in 2008. For the year 2018, the FAA expects 67 flights per day over Zion without the replacement airport and 69 flights per day with the replacement airport. App. at 99. Thus, the replacement airport is expected to add 2 overflights per day in 2018. In response to this analysis, the EA concludes that "the replacement airport has very little contribution to the cumulative number of aircraft over flights over Zion National Park." App. at 99. However, the EA does not provide any analysis of the impact of the 54 flights per day over Zion in 2008 or the 69 flights per day in 2018 that will occur with the replacement airport. It is as if these impacts do not matter because the replacement airport is not adding a significant number of flights to those that are already predicted to occur.

However, the impact of these flights is indeed significant. As stated in the EA, the background noise level in Zion is often in the low 20 dBA. App. at 98. Each of these flights may be responsible for a noise level of 45 to 65 dBA. App. at 98. According to aircraft noise expert Jim Foch, an increase of 10 dBA correlates to a doubling of loudness, which means that a commercial jet overflight at Zion may be 4 to 23 times as loud as the natural soundscape. Exhibit 2, #8(b). "This great disparity between the noise of the commercial jet and the sounds of the natural soundscape means that, for most of the time period that a commercial jet approaches and recedes and for all of the time that it passes overhead, the natural soundscape is obliterated or destroyed." Id. However, the EA contains no analysis of the significance of 54 or 69 instances per day where the natural soundscape of the park is obliterated. In order to truly assess the noise impacts of this project on Zion, the EA must recognize and analyze the significance of the total impacts of the replacement airport, regardless of whether some of these impacts would occur whether or not the airport is built. It is particularly important to analyze the total impacts of future aircraft activity at this point because there is no subsequent federal action to trigger NEPA review once the airport is built and the number of flights begins to increase.

Because the EA focuses almost exclusively on the incremental impacts of the replacement airport, it fails to analyze the total or cumulative impacts of the project. While the incremental impacts may appear insignificant when viewed alone, these impacts may "represent the straw that breaks the back of the environmental camel." Hanly, 471 F.2d at 831.


2. The FAA Failed to Include Non-St. George Flights or Air Tour Operations as Part of the Environmental Baseline.

The FAA does not consider the impacts of aircraft that do not utilize the St. George airport or air tour operations that fly over Zion as part of the environmental baseline.

The EA recognizes that Zion is impacted by aircraft that come from airports other than St. George. However, rather than looking at the cumulative impact of all of these flights plus the flights that will be utilizing the St. George airport, the final EA uses these large numbers to attempt to show the insignificance of the replacement airport's contribution.

The EA estimates that, on an average day, there are currently approximately 250 commercial flights that pass over Zion that do not utilize the St. George airport. App. at 98. "Zion National Park is situated along a Victor airway that is utilized by many aircraft, including those from St. George." App. at 99. Although the EA acknowledges that these flights have noise impacts on Zion, there is no discussion of the level of these impacts, the areas of Zion that are most impacted, or the relation of these areas to the flights utilizing the St. George airport. As a result, the FAA does not adequately portray the environmental baseline.

Instead, the EA once again uses the potentially large impact of non-St. George flights to downplay the incremental impact of the replacement airport. The EA states, "The St. George Airport itself is only a small contributor to the over [sic] aircraft noise levels in Zion National Park." App. at 99. However, this statement proves the point that there are other noise impacts to Zion. Under NEPA, these impacts must be considered by the FAA.

The EA also makes no mention of the impacts of air tour operations, both those which utilize the St. George airport and those that do not, on the soundscape of the park and the significance of these impacts in combination with the expected impacts from the replacement airport. It is clear that there are air tour operations which utilize Zion. In fact, NPS's General Management Plan for Zion makes it clear that air tour operations are a significant problem that must be addressed by the FAA and NPS. NPS and the FAA will be working together to develop an air tour management plan for the park. Exhibit 3, at 12-13. However, the EA provides no discussion of these tours, where they originate, or the noise impacts associated with the tours. Thus, the EA has ignored an important aspect of the environmental baseline fails to adequately address cumulative impacts.


B. The FAA Violated NEPA by Failing to Consider Reasonably Foreseeable Future Actions that will Result in Cumulative Impacts to Zion.

Under NEPA, the FAA is also required to consider the impact of reasonably foreseeable future actions. 40 C.F.R. 1508.7. These impacts may include increases in existing activities as well as new activities. City of Carmel-by-the-Sea, 95 F.3d at 902 (requiring consideration of reasonably foreseeable actions having impacts in the same area and "the overall impact that can be expected if the individual impacts are allowed to accumulate"); Fritiofson, 772 F.2d at 1245 (same) (citing Cabinet Mountains Wilderness/ Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 683-84 (D.C. Cir. 1982)). The FAA has not considered reasonably foreseeable future actions that may also have an additive noise impact on Zion, including increased air traffic nationwide and at new airports in the region. There is also the possibility of increased air tour operations within the park.

The EA specifically recognizes that the number of non-St. George flights passing over Zion will increase over the years. App. at 576. Thus, it appears that an increase in the number of non-St. George flights is reasonably foreseeable. Therefore, it is clear that the noise impacts to Zion will also increase in the future. The EA makes no attempt to analyze the level or significance of these increases. Although it may be difficult for the FAA to determine the precise number of planes that will pass over Zion each year, it could certainly make reasonable predictions based on trends in air travel. [FN 11]

[FN 11] Indeed, the FAA made precise predictions about the number of flights expected to utilize the St. George airport into the future.
Grand Canyon Trust and the National Parks Conservation Association raised the issue of other airports, that have been proposed or are in the process of being proposed for Cedar City, Utah, and Las Vegas and Mesquite, Nevada. App. at 570, 574. These airports have the potential to increase noise impacts within Zion by increasing air travel in the region. The EA makes no mention of these potential impacts and makes no attempt to analyze their potential cumulative impact on the Park. Instead, the FAA responds that these airports serve different functions. App. at 589. This response implies that the FAA is indeed aware of plans for these airports. However, it does not alleviate the need to consider cumulative impacts.

Because the EA does not even address air tour operations, there is obviously no discussion of reasonably foreseeable future actions with respect to air tours. However, the FAA is required to consider whether these operations are likely to increase, decrease, or stay the same over the long term. The associated impacts should also be considered.

Because the EA fails to consider these important reasonably foreseeable actions, it does not adequately address the cumulative impacts to Zion.


C. The FAA's Argument that it is not Required to Look at Actions that are not Federally-funded or Actions that are not Directly Related to the Relocation and Expansion of the St. George Airport is Contrary to Law.

The response to comments in the EA provides insight into the FAA's justification for including no discussion of cumulative impacts. However, the FAA's interpretation of cumulative impacts law is clearly flawed. In responding to NPS's request for an adequate cumulative impacts analysis, the EA states:

The draft environmental assessment (DEA) addresses those impacts associated with a Federally funded project to construct a replacement airport at St. George, Utah. Aircraft using other airports or natural growth in operations at other airports are not necessarily a result of Federally funded projects and will occur over time independent of airport activities. Aircraft operations are projected to increase on a national basis and will not be a result of actions taken at St. George. Flight tracks, altitudes, and related operation characteristics are the responsibility of the FAA and the proposed replacement airport will not modify any of these characteristics.
App. at 508, 531, 578, 581. Based on these statements, it appears that the FAA takes the position that there is no need to address impacts that are not "federally funded" or that are not "the result of actions taken at St. George." This interpretation is inconsistent with federal law.

The explicit language of the CEQ regulations make it clear that federal agencies must consider the cumulative impact of non-federal actions. 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." 40 C.F.R. 1508.7 (emphasis added); North Slope Borough v. Andrus, 642 F.2d 589, 600-601 (D.C. Cir. 1980) (upholding a cumulative impacts analysis that considers impacts of other state and federal activities in the affected region); Resources Ltd. v. Robertson, 35 F.3d 1300, 1306 (9th Cir. 1993) ("The Forest Service says that cumulative impacts from non-Federal actions need not be analyzed because the Federal government cannot control them. That interpretation is inconsistent with 40 C.F.R. 1508.7, which specifically requires such analysis."). Thus, the FAA clearly has an obligation to consider the cumulative impacts of actions that are not federally funded.

In addition, the FAA is not limited to consideration of impacts that are the direct result of actions taken at St. George. Cumulative impacts include impacts other than those that are solely caused by the project in question. Fund for Animals v. Clark, 27 F. Supp.2d 8, 13-14 (D.D.C. 1998) (rejecting defendants argument that they were not required to consider "separate and distinct" programs that have impacts in the same geographic area as the proposed project in an EA).

The CEQ regulations distinguish between direct, indirect, and cumulative environmental impacts. While both direct and indirect impacts "are caused by the action," 40 C.F.R. 1508.8, 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." 40 C.F.R. 1508.7. Therefore, cumulative impacts are not limited to actions which are dependent on the project in question.

The issue of cumulative impacts is somewhat confused by the fact that there are two ways that cumulative effects are addressed in the NEPA process. In determining the scope of an EIS, a federal agency must consider three things (1) actions other than unconnected single actions (which may be connected, cumulative, and similar), (2) alternatives, and (3) impacts (which may be direct, indirect, cumulative). 40 C.F.R. 1508.25. As the regulation makes clear, cumulative actions are different from cumulative impacts.

Cumulative actions are those that "when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement." Id. § 1508.25(a)(2). In Kleppe v. Sierra Club, 427 U.S. 390 (1976), the Supreme Court addressed cumulative actions in determining whether certain proposed actions within a particular geographic area needed to be considered together in one "comprehensive" or "programmatic" EIS. Relying on this case, as well as 40 C.F.R. 1508.25(a)(2) (addressing cumulative actions), this Court upheld the scope of an FAA NEPA document approving a new airport for Denver, Colorado, finding that "[the FAA] is not required by the pertinent CEQ regulations to consider projects that are neither related to nor dependent on the airport. See 40 C.F.R. 1508.25(a) ('unconnected single actions' need not be considered)." Allison v. Department of Transportation, 908 F.2d 1024, 1031 (D.C. Cir. 1990) (citing Kleppe, 427 U.S. at 409-412). Although the discussion is very limited, the citations to 40 C.F.R. 1508.25(a) and Kleppe make it clear that this Court was addressing the type of actions that must be considered together in one EA, rather than the types of impacts that must be considered in any EA that is produced. [FN 12]

[FN 12] The FAA's Airport Environmental Handbook focuses almost exclusively on cumulative actions. App. at 763. While the guidance reiterates the CEQ definition of cumulative impact, it goes on to discuss only the three types of actions to be considered in determining the scope of an EIS: (1) connected actions, (2) cumulative actions, and (3) similar actions.
After the scope of the EA or EIS is determined -- i.e., which action or actions are being subjected to NEPA analysis in the same document -- then the cumulative impacts must be considered as part of the NEPA analysis. Cumulative impacts are those impacts that result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions, including the actions of non-federal agencies and persons. 40 C.F.R. 1508.7, 1508.25. Neither the Kleppe Court or this Court in Allison discuss the types of impacts, including cumulative impacts, that must be analyzed in any particular document. Kleppe, 427 U.S. at 408 ("[T]his case was not brought as a challenge to a particular impact statement and there is not impact statement in the record."); Defenders of Wildlife v. Babbitt, 130 F. Supp.2d 121, 136 n.20 (D.D.C. 2001) ("[Allison] does not address the requirement that cumulative impacts must be considered."); see also Coalition on Sensible Transportation, 826 F.2d at 68-70 (distinguishing between an argument that certain projects should be considered in the same environmental document and the analysis of cumulative impacts in the EA that was produced).

The District Court for the District of Columbia has clearly distinguished Allison and found it irrelevant for determining whether the cumulative impacts analysis of an EIS is adequate. Defenders of Wildlife v. Babbitt, 130 F. Supp.2d 121 (D.D.C. 2001). According to the court in Defenders of Wildlife, "the scope of an EIS must address certain 'actions' and certain 'impacts.' Under the regulations, connected, cumulative, and similar actions are within the scope of an EIS. Similarly, direct, indirect, and cumulative impacts are to be considered. While Allison reiterates that 40 C.F.R. 1508.25(a) does not require unrelated single actions to be considered in an EIS, the decision does not address the requirement that cumulative impacts must be considered." 130 F. Supp.2d at 136 n.20 (citations omitted) (emphasis in original); see also Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988) (stating that cumulative actions must be evaluated in the same environmental document and that an EIS must also consider any cumulative impacts of agency action); Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985).

Thus, the Defenders of Wildlife court rejected the defendants' argument, based on Allison, that they were not required to address the impacts of actions that were not related to or dependent on the proposed action in the EIS. Instead the court accepted the plaintiffs' argument, based on the language of 40 C.F.R. 1508.7, that the defendants were required to address the proposed actions "incremental impact on the pronghorn when added to the impact of other past, present, and reasonably foreseeable future . . . activities that also affect the pronghorn." Defenders of Wildlife, 130 F. Supp.2d at 136. Defenders of Wildlife makes it clear that cumulative impacts must address more than just actions that are dependent on or related to the project in question. Therefore, the FAA's argument that they do not have to consider any impacts that are not the direct result of actions taken at St. George is unsupportable.

In summary, the FAA's failure to address cumulative impacts violates NEPA. The EA does not include a cumulative impacts analysis. The FAA fails to consider the total impact that results from the addition of the incremental impact to the existing environmental baseline. In addition, the FAA fails to consider reasonably foreseeable future actions that may also impact the soundscape of Zion. Finally, the FAA's assertion that they must only consider the impact of federally funded projects or projects that are the direct result of actions taken at St. George is contrary to law. Therefore, the FAA's approval of the EA is arbitrary and capricious.


II. The FAA violated NEPA by Failing to Consider any Data Collected within Zion National Park by the National Park Service.

The FAA has not taken a hard look at the impacts to Zion because they have ignored critical data collected by NPS on aircraft impacts to Zion.

A federal agency has an obligation to consider important scientific information that is relevant to the impacts of its proposed project. This Court has stated that its "responsibility lies in assuring that the agency had before it all the data to make an informed decision that adequately took account of the important environmental concerns." Sierra Club, 753 F.2d at 129; see also National Parks Conservation Association v. Babbitt, 241 F.3d 722, 736 n.14 (9th Cir. 2001) (finding that a court must consider "whether the agency's methodology indicates that it took a hard look at the proposed action by reasonably and fully informing itself of the appropriate facts"). In Sierra Club, the EIS made use of extensive "actual on site noise measurements." 753 F.2d at 129.

NEPA also makes it clear that information from other federal agencies is particularly important. 42 U.S.C. 4332(2)(C) (requiring consultation with "any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved"); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983); Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973).

It is clear that there is relevant data on sound, including aircraft noise, that has not been considered by the FAA. In criticizing the supplemental noise analysis, Zion Superintendent, Martin C. Ott, stated that "[a]coustic data collected at Zion National Park appears not to have been considered at all." App. at 496. In response to this comment, the EA states, "[i]t is true that no acoustical data collected in the Park was considered." App. at 508. According to aircraft noise expert Jim Foch, there are currently sound measurements and recordings being made at about a dozen sites within the park. Exhibit 2, #8(c).

This monitoring provides substantial information on aircraft impacts to the park and the most direct evidence of the noise impacts of individual aircraft overflights on Zion. However, the FAA did not examine any of this data in reaching its conclusion that the replacement airport will have no significant impact on the park. Therefore, the FAA has failed to take a hard look at the problem and has violated NEPA.


III. The Highly Controversial Nature of the Environmental Impacts of the Relocation of the Airport Indicate that an EIS is Required.

The FAA failed to consider the highly controversial nature of the environmental impacts of the project when determining that no EIS was warranted. The level of dispute from other federal agencies as well as the significant public concern over impacts to Zion indicates that a full EIS is required.

In order to determine whether an EIS is necessary, an agency must consider "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. 1508.27(b)(4); Fund for Animals v. Frizzell, 530 F.2d 982, 988 n.15 (D.C. Cir. 1975). The effects of an action are highly controversial when there is a "substantial dispute [about] the size, nature or effect of the major Federal action." National Parks Conservation Association v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998); Rucker v. Willis, 484 F.2d 158, 162 (4th Cir. 1973); Friends of the Ompompanoosuc v. FERC, 968 F.2d 1549, 1557 (2d Cir. 1992); Friends of the Earth v. United States Army Corps of Engineers, 109 F. Supp.2d 30, 43 (D.D.C. 2000). There are two factors that courts have considered when determining whether there is a substantial dispute about the effect of a project that are relevant to the St. George airport: (1) the degree of opposition from other federal and state agencies, and (2) the degree of opposition from the public.

First, courts have found that an action is "highly controversial" and requires an EA, when other federal and state agencies have disputed the environmental impacts of the project. Friends of the Earth, 109 F. Supp.2d at 43 ("In this case, three federal agencies and one state agency have all disputed the Corps evaluation of the environmental impacts of the casinos."). The Court of Appeals for the Ninth Circuit has stated that where a federal agency has received numerous comments disputing an EA's conclusion on environmental impacts, particularly from two state agencies, it is "precisely the type of 'controversial' action for which an EIS must be prepared." Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1182 (9th Cir. 1982).

The subject of noise impacts to national parks is an extremely controversial issue. NPS and the FAA have consistently disagreed over the proper method for analysis of noise impacts. App. at 989, 1001. This disagreement has been particularly acute in this case due to the pristine nature of Zion, where over 90% of the park has been proposed for wilderness status.

NPS, which has the primary management responsibility for Zion, has consistently objected to the FAA's analysis of the noise impacts to the park. App. at 989, 1001. It was only in response to comments from NPS that noise impacts to Zion were even considered in the EA. App. at 95, 214-15. In response to the supplemental noise analysis, Zion Superintendent Martin C. Ott provided extensive comments on the inappropriateness of the noise metrics utilized in the supplemental noise analysis. He commented that the "Day Night Noise Level (DNL) has almost no relevance to assessing impacts on park resources and visitors. It is designed for residents of urban airport environments, not for park resources or visitors." App. at 496. He also commented on the failure of the FAA to consider acoustic data collected within the boundaries of the park. App. at 496. Finally, he strongly objected to the cumulative impacts analysis. App. at 495-96. NPS officials from Washington, D.C. also commented on the inadequacy of the noise analysis. Maureen Finnerty, Associate Director for Park Operations and Education commented on "very significant errors" in the noise analysis including the noise metrics utilized and the failure to consider data collected by consultants within Zion. App. at 500. NPS provided further objections to the EA, after its publication. App. at 1348-51.

Similarly, the EPA objected to aspects of the noise analysis. Cynthia Cody, Chief of the NEPA Unit, Office of Ecosystems Protection and Remediation, objected extensively to the cumulative impacts analysis. She stated that "[b]ased on the review of available documents, conversations with officials, and site visits, EPA believes that actions assessed in this EA could result in both indirect and cumulative adverse environmental impacts that are significant to critical environmental resources such as . . . noise." App. at 505. She explicitly points out to the FAA that "[r]easonably foreseeable adverse impacts should be identified and assessed regardless of whether they are associated with past, planned, and future airport actions . . . . Indirect and cumulative impacts of this project, when added to the direct effects of the project that are evaluated in the EA, may be significant and warrant an EIS." App. at 505. In commenting that the noise analysis was inadequate, the letter states that EPA would "like to see the final EA identify and consider for implementation those procedures that are available for noise abatement of departures and arrivals, that could reduce the anticipated noise impacts experienced by Zion National Park visitors." App. at 506.

The existence of a public controversy over the impacts of a project is another factor to consider in determining whether an action is highly controversial. National Parks Conservation Association, 241 F.3d at 736; Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1993).

In this case, there was an outpouring of opposition to the project based on the noise impacts to Zion from both organizations and the public. The Recreational Issues Committee of the Sierra Club, representing 610,000 members, provided extensive comments on the inadequacy of the noise analysis and the failure to address cumulative impacts. The Utah Chapter of the Sierra Club, provided oral comments at the public hearing held on July 18, 2000 as well as written comments objecting to the analysis of the impacts on the natural soundscape of the park. App. at 561. Grand Canyon Trust, on behalf of its 4,000 members, also provided comments on the inadequacy of the noise analysis and the failure to consider cumulative impacts. App. at 570. Similarly, the National Parks Conservation Association, on behalf of its over 400,000 members provided comments on the inadequacy of the supplemental nosie analysis and failure to address cumulative impacts. App. at 572. In addition to these comments from organizations, the FAA received over 120 comments from private individuals disputing the EA's conclusions about noise impacts to Zion. App. at 591-607.

As this Court has made clear, "something more is required besides the facts that some people may be highly agitated and be willing to go to court over the matter," in order for a court to require an EIS. Fund for Animals, 530 F.2d at 988 n.15. In this case, the "something more" is the controversy between federal agencies and the fact that Zion has been identified as one of nine parks in the nation in need of priority attention to natural quiet protection. App. at 1237.

NEPA requires agencies to consider "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park land, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas" when determining whether to prepare an EIS. 40 C.F.R. 1508.27(b). As this Court has recognized, "although noise is a problem in any setting, "airplane noise is fundamentally inconsistent with the type of recreational experience Park visitors are seeking' and should be minimized." Sierra Club v. United States Department of Transportation, 753 F.2d 120 (D.C. Cir. 1985). Thus the unique setting of Zion should also be factored into the analysis of whether the action is highly controversial. Zion has been recognized as a national treasure and deserves an adequate analysis of impacts to one of its most special qualities -- the existence of natural quiet.

Despite, the history of conflict between the FAA and NPS with respect to noise analysis and the extensive comments by NPS, EPA, and the public on the inadequacy of the EA, an EIS was not prepared. Therefore, the FAA has failed to consider the highly controversial nature of the project in violation of NEPA.


RELIEF

Based on the deficiencies in the EA, addressed in the foregoing analysis, Grand Canyon Trust asks the Court to find the FAA in violation of NEPA for failure to prepare an adequate cumulative impacts analysis and for failing to include NPS data in its analysis. In addition, Grand Canyon Trust asks the Court to order the FAA to prepare an EIS before beginning construction on the replacement airport. Finally, Grand Canyon Trust would ask the Court to award any additional relief that it sees fit under these circumstances, including reasonable costs and attorney fees to the Petitioners.