ELR Citation: ELR 20336
No(s). 98-70033 (9th Cir. Nov 23, 1998)

The court denies a Native American tribe's petition for review of a Federal Aviation Administration (FAA) decision to implement an airport arrival enhancement project (AEP) that will cause increased air traffic over the tribe's reservation. The court first holds that FAA fulfilled its obligation under the National Environmental Policy Act to rigorously explore and objectively evaluate all reasonable alternatives. FAA thoroughly discussed alternatives that would have bypassed the reservation, but found them unsuitable for accomplishing the AEP's primary purpose—definition of a new airspace sector. Moreover, the tribe failed to point to a specific feasible alternative that would have bypassed the reservation while still allowing the creation of a new airspace sector. The court next holds that FAA's noise impact evaluation was not arbitrary and capricious.

The court then holds that FAA did not improperly segment the AEP from a larger expansion project for which FAA is preparing an environmental impact statement (EIS). The AEP and the expansion project have independent utility. The primary purpose of the AEP was to deal with existing problems of delay and inefficiency in the arrival system. The court also holds that FAA was not required to consider the growth-inducing impacts of the AEP. The AEP 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. In addition, the court holds that the tribe did not establish that FAA failed to consider the cumulative impact of the AEP with the expansion project. The projected increases in arrival traffic at the airport, and the resulting impacts on noise levels, were fully integrated into FAA's noise analysis, fulfilling FAA's requirement to consider cumulative impacts.

The court then holds that FAA was not required to prepare an EIS or obtain the tribe's consent under the National Historic Preservation Act. 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. Last, the court holds that FAA's decision did not violate §4(f) of the Transportation Act. FAA undertook a thorough analysis in the environmental assessment and concluded that the AEP would have only an insignificant impact on the existing use of the land.

Counsel for Petitioner
John R. Shordike
Alexander & Karshmer
2150 Shattuck Ave., Ste. 725, Berkeley CA 94704
(510) 841-5056

Counsel for Respondents
Marta Hoilman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Brunetti and Graber, JJ.