Petition — Burbank Anti-Noise Group v. Lewis

Supreme Court brief1981

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Supreme Court U.S,

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re! Us -9 838 |

DEG & 1980 |

No.

IN THE MICHAEL RODAK, JR. CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1980

BURBANK ANTI-NOISE GROUP,

NORTH HOLLYWOOD HOMEOWNERS ASSN.,

SHERMAN OAKS HOMEOWNERS ASSN.,

STUDIO CITY RESIDENTS ASSN.,

SUN VALLEY HOMEOWNERS ASSN., and

VAN NUYS HOMEOWNERS ASSN.,

Petitioners,

VS. .

NEIL E. GOLDSCHMIDT,

FEDERAL AVIATION ADMINISTRATION,

LANGHORNE M. BOND, STATE OF CALIFORNIA,

LOCKHEED AIR TERMINAL, INC., and

HOLLYWOOD-BURBANK AIRPORT AUTHORITY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERROLD A. FADEM

MICHAEL M. BERGER }

of FADEM, BERGER & NORTON

A Professional Corporation

501 Santa Monica Boulevard

Suite 600

P.O. Box 2148

Santa Monica, CA 90406

(213) 451-9951

Attorneys for Petitioners.

QUESTIONS PRESENTED

1. When the federal agency charged

with applying the National Environmental

Policy Act (NEPA) to aviation determines

that an airport project does require an

Environmental Impact Statement (EIS),

and no one files suit to contest that

determination, does a District Court (in

the midst of a proceeding challenging

the sufficiency of the EIS which was

prepared) have jurisidciton to decide

that an EIS was not required?

2. When an EIS is prepared, and

relied on by the Secretary of Transporta-

tion, the FAA, and the public, can a

District Court hold that none was needed,

and grant summary judgment to a challenge

of the EIS's adequacy?

3. Is an EIS required (as the FAA's

regulations declare) when the FAA approves

the location of an airport?

ii.

TOPICAL INDEX

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATUTES AND REGULATIONS

STATEMENT OF THE CASE

BY OVERRULING THE FAA'S DECISION

THAT AN EIS WAS REQUIRED IN THIS

CASE, THE OPINION CONFLICTS WITH

ALL KNOWN DECISIONS ON THIS ISSUE,

INCLUDING DECISIONS OF THIS COURT

AN EIS IS REQUIRED WHEN THE

UNITED STATES GIVES AIRPORT

LOCATION APPROVAL

iii.

THE COURT OF APPEALS' OPINION

PROCEEDS FROM THE FALSE PREMISE

THAT THERE CAN BE NO ADVERSE

ENVIRONMENTAL IMPACT 22

CONCLUSION 25

APPENDIX A SUMMARY JUDGMENT

BURBANK ANTI-NOISE GROUP

et al, v. BROCK ADAMS,

et al, NO. CV 77-3868-IH

FILED MAY 8, 1978, UNITED

STATES DISTRICT COURT

APPENDIX B REPORTER'S TRANSCRIPT OF

PROCEEDINGS, Monday,

May 8, 1978, CV 77-3868-IH

APPENDIX C OPINION, COURT OF APPEALS

FOR THE NINTH CIRCUIT,

No. 78-2629, FILED

JUL 14, 1980

APPENDIX D ORDER, COURT OF APPEALS

FOR THE NINTH CIRCUIT,

No. 78-2629, FILED

SEP 8, 1980

APPENDIX E STATUTES AND REGULATIONS

iv.

TABLE OF AUTHORITIES

Cases

Atlantic Ref. Co. v. FTC (1965)

Sen. 8.8. 357

Citizens for Reid State Park

v. Laird (D Maine 1972)

336 F.Supp. 783

City of Davis v. Coleman

(9th Cir. 1975)

521 F.2d 661

Committee for Auto Responsibility

v. Solomon (DC Cir. 1979)

603 F.2d 992

First National Bank v. Richardson

(7th Cir. 1973)

484 F.2d 1369

First National Bank v. Watson

(D DC 1973) 363 F.Supp. 466

Greater Westchester Homeowners

Assn. v. City of

Los Angeles (1979)

26 Cal.3d 86, cert. den.

a Ren (Oct. 6, 1980)

Hanly v. Kleindienst

(2nd Cir. 1972)

471 F.2d 823

Image of Gr. San Antonio v.

Brown (5th Cir. 1978)

570 F.2d 517

Kleppe v. Sierra Club (1976)

427 U.S. 390

Matsumoto v. Brinegar

(9th Cir. 1978)

568 F.2d 1289

Minnesota Pub. Int. Res. Group

v. Butz (8th Cir, 1974)

498 F.2d 1314

Moog Indus., Inc. v. FTC (1958)

355 U.S. 411

Morningside Renew. Coun., Inc.

v. AEC (2d Cir. 1973)

482 F.2d 234

Osborn v. The Bank of the

United States (1824)

9 Wheat. (22 US) 738

vi.

Scientists Inst. for Pub.

Tare., ine...v. AK

(po Cie. 1973)

481 F.2d 1079

Statutes

28 U.S.C. § 1254(1)

28 U.S.C. §§ 1331, 1337

42 U.S.C. § 4321 et seq.

42 U.S.C. § 4332

49 U.S.C. § 1701 et seq.

49 U.S.C. § 1716(c) (4)

Miscellaneous

FAA, Policies and Procedures for

Considering Environmental

Impacts, App. 2, § 3

vii.

Oo oO N

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

BURBANK ANTI-NOISE GROUP, NORTH HOLLYWOOD

HOMEOWNERS ASSN., SHERMAN OAKS HOMEOWNERS

ASSN., STUDIO CITY RESIDENTS ASSN.,

SUN VALLEY HOMEOWNERS ASSN., and VAN NUYS

HOMEOWNERS ASSN.,

Petitioners,

vs.

NEIL E. GOLDSCHMIDT, FEDERAL AVIATION

ADMINISTRATION, LANGHORNE M. BOND,

STATE OF CALIFORNIA, LOCKHEED AIR

TERMINAL, INC., and HOLLYWOOD-BURBANK

AIRPORT AUTHORITY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioning homeowners associa-

tions respectfully pray that a Writ of

Certiorari issue to review a judgment

and opinion of the United States Court

of Appeals for the Ninth Circuit.

OPINION BELOW

The opinion of the Court of Appeals

(App. C) is reported as Burbank Anti-

Noise Group v. Goldschmidt (9th Cir.

1980) 623 F.2d 115.

JURISDICTION

The judgment of the Court of Appeals

was filed and entered on July 14, 1980.

A timely Petition for Rehearing was

denied September 8, 1980 (App. D).

A copy of the District Court's judg-

ment is App. A. A Reporter's Transcript

of the District Court's comments on

May 8, 1978, which the Court said ex-

plained the grounds for the judgment,

is App. B.

This Court's jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS

The following pertinent statutes and

regulations are reproduced in App. E:

FAA, Policies and Procedures for

Considering Environmental Impacts,

App. 2, $3;

49 U.S.C. § 1716(c) (4);

42 U.S.C. § 4332.

STATEMENT OF THE CASE

This is an appeal from a summary

judgment which held that an EIS was not

necessary when the FAA approved the

location of the Hollywood-Burbank

Airport, and then financed the sale of

the airport from private to public

ownership.

The case began when Lockheed Air

Terminal, Inc. decided that it could not

operate the Hollywood-Burbank Airport

in conformity with California noise

regulations. As the FAA's decision paper

expressed it (AR 15-16): 1/

"The proposed acquisition of

Hollywood-Burbank Airport is the

direct result of the announced

intention of Lockheed Air Terminal,

Inc., the present owner/operator,

to close the airport by December

31, 1977, if no action is taken by

any governmental body to acquire

and operate the facility. The

decision to close the airport was

based on a determination by

Lockheed that maintenance of the

facility was no longer viable be-

cause: (1) Lockheed could not

comply with the California noise

regulations, (2) the airport did

not generate sufficient return for

its value and (3) continued opera-

tion could result in exposure to

civil litigation."

As a result of Lockheed's threat to

close the airport, the cities of Burbank,

Glendale and Pasadena entered into a

joint powers agreement and formed the

1/ The Administrative Record, which was

received in evidence by the District

Court (RT 5) is designated AR. The

Clerk's Record is designated CR.

Hollywood-Burbank Airport Authority for

the purpose of acquiring and operating

the airport.

The FAA decided an EIS was required.

An EIS was prepared.

The project being examined is des-

cribed in the EIS as having two facets

(AR 31):

° Federal financing to assist in

the acquisition of the Hollywood-

Burbank Airport; and

e "The proposed action also

includes airport location

approval since this project

is the first Federal action

involving the Airport and

Airway Development Act of

1970 at Hollywood-Burbank |

Airport.”

Thus, the purpose of the EIS was to

explain the consequences of the transfer

of the airport from Lockheed to the

newly-created Hollywood-Burbank Airport

Authority, as well as the consequences

of operating a jet airport at that

location (for the "airport location

approval" part of the project).

The EIS was relied on by the

Secretary of Transportation in approving

the location of the airport and the

federal funding of the purchase from

Lockheed.

A detailed discussion of the EIS is

not presented in this Petition, as the

Court of Appeals refused to examine the

substance of the EIS. It suffices at

this point to note the following about

the EIS:

* It is voluminous, containing

1576 pages.

e Its financial analysis was

prepared on the assumption that

revenue would be required to

service $12 million worth of

bonds (AR 2316; CR 422-424).

It was later learned that it

would be necessary to service

a bond issue twice that size

(CR 426). No new analysis

was prepared to evaluate this

reality.

It is not a coherent, much less

unified, document. The so-

called "Final EIS" is contained

in 3 volumes. The first volume

contains a summary of the EIS,

more than a hundred pages of

miscellaneous written criticisms

of the draft EIS (followed —

individually — by responses to

the criticisms), and a number of

other documents. The second volume

contains the draft EIS along with

17 appendices. The third volume

contains more comments on the

draft EIS and a summary of the

public hearing on the draft EIS.

e It is not an impartial, full-

disclosure document. Instead,

it is a partisan rationalization

of a mind which was made up in

advance.

Thus, the EIS fails in its task of

ensuring, in the words of Matsumoto v.

Brinegar (Sth Cir. 1978) 568 F.2d 1289,

1290, that even if "[t]he project when

finished may be a complete blunder -

NEPA insists that it be a knowledgeable

blunder." (Emphasis added.)

This suit was brought by 6 home-

owners' associations against the Secretary

of Transportation, the Administrator of

the FAA and the FAA to review their

compliance with NEFA in preparation of

the EIS (CR Wed The State of

California, Lockheed, and the Hollywood-

Burbank Airport Authority were permitted

to intervene as defendants.

The District Court granted summary

judgment in favor of the defendants and

intervenors, holding that no EIS was

required for this project and, if one

were, the EIS which was prepared was

adequate (RT 8, 13; CR 963).

In granting summary judgment for the

Defendants, the District Court overlooked

half the purpose of the EIS: the Court

looked only at the transfer of ownership,

not the airport location approval (RT 9).

2/ The District Court's jurisdiction was

invoked pursuant to 28 U.S.C. §§ 1331,

1337, NEPA (42 U.S.C. § 4321 et seq.) and

the Airport and Airway Development Act

(49 U.S.C. § 1701 et seq.).

The Court of Appeals affirmed. That

court likewise ignored the airport loca-

tion approval. It also disregarded the

fact that the FAA — the federal agency

charged with deciding whether an EIS is re-

quired — decided that an EIS was required,

prepared an EIS and relied on it.

At oral argument in the Court of

Appeals, counsel for the United States

candidly agreed that his agency had

decided to prepare an EIS and had relied

on it and urged that the EIS be evaluated

on its merits.

This Court's intervention is needed

to re-establish the rule that it is the

agency's job to decide whether to prepare

an EIS (in the absence of a proper judi-

cial challenge). In disregarding the

FAA's determination that an EIS was

required, the decision below is contrary

to all known authority.

10.

BY OVERRULING THE FAA'S DECISION

THAT AN EIS WAS REQUIRED IN THIS

CASE, THE OPINION CONFLICTS WITH

ALL KNOWN DECISIONS ON THIS ISSUE,

INCLUDING DECISIONS OF THIS COURT

The decision whether to prepare an

EIS is made by the responsible federal

agency .2/

In this case, the FAA decided an EIS

was necessary.

3/ £E.g., First National Bank v.

Richardson (7th Cir. 1973) 484 F.2d

1369, 1380; Scientists Inst. for Pub.

Info., Inc. v. AEC (DC Cir. 1973) 481

F.2d 1079, 1994; Morningside Renew.

Coun., Inc. v. AEC (2d Cir. 1973) 482

F.2d 234, 238; Image of Gr. San Antonio

v. Brown (5th Cir. 1978) 570 F.2d 517,

522; Committee for Auto Responsibilit

v. Solomon (DC Cir. 1979) 603 F.2d 355,

1002; Hanly v. Kleindienst (2nd Cir.

1972) 471 F.2d 823, 838; Minnesota Pub.

Int. Res. Group v. Butz (8th Cir. 1974)

498 F.2d 1314, 1319; First National Bank

v. Watson (D DC 1973) 363 F.Supp. 466,

472; Citizens for Reid State Park v.

Laird (D Maine 1972) 336 F.Supp. 783,

789.

ll.

The courts heve repeatedly refused tu

second-guess agency decisions on the

threshhold decision whether to prepare an

EIS. The following explanations are

illustrative as well as persuasive.

"Determining when to draft an

impact statement for a technology

development program obviously re-

quires a reconciliation of these

competing concerns. Some balance

must be struck, and several fac-

tors should be weighed in the

balance. How likely is the

technology to prove commercially

feasible, and how soon will that

occur? To what extent is meaning-

ful information presently avail-

able on the effects of applica~-

tion of the technology and of

alternatives and their effects?

To what extent are irretrievable

commitments being made and options

precluded as the development pro-

gram progresses? How severe will

be the environmental effects if

the technology does prove commer-

cially feasible?

"Answers to questions like

these require agency expertise,

and therefore the initial and pri-

mary responsibility for striking a

balance between the competing

concerns must rest with the agency

itself, not with the courts."

(Scientists Inst., 481 F.2d at 1094;

emphasis added.)

12.

. . » the agency's determina-

tion reflects the exercise of

expertise not possessed by the

court." (Hanly, 471 F.2d at 829)

This Court has expressly adopted this

interpretation of NEPA. As this Court

held in Kleppe v. Sierra Club (1976) 427

U.S. 390, 412:

"Respondents conceded at oral

argument that to prevail they must

show that petitioners have acted

arbitrarily in refusing to pre-

pare one comprehensive statement

on this entire region, and we

agree. Tr of Oral Arg 67. The

determination of the region, if

any, with respect to which a

comprehensive statement is nec-

essary requires the weighing of a

number of relevant factors, in-

cluding the extent of the inter-

relationship among proposed

actions and practical considera-

tions of feasibility. Resolving

these issues requires a high

Tevel of technical expertise and

Is properly left to the informed

discretion of the responsible

federal agencies. [citation]

Absent a showing of arbitrary

action, we must assume that the

agencies have exercised this

13.

discretion appropriately.

(Emphasis added.) 4/

The deference to the judgment of the

responsible federal agency (in the

absence of palpable abuse [see City of

Davis v. Coleman (9th Cir. 1975) 521

F.2d 661, 673]) is the application to

NEPA of settled principles of adminis-

trative law. (E.g., Moog Indus., Inc.

'v. FTC [1958] 355 U.S. 411, 413;

Atlantic Ref. Co. v. FTC [1965] 381

U.8. 357, 367.)

Whether the need for preparation of

an EIS is an issue before the courts

flows from the familiar "case or

4/ Thus, decisions cited in the Court of

Appeals' opinion which affirm agency

decisions not to file an EIS, actually

support the Homeowners. In those cases,

deference was paid the expertise of the

responsible federal agency. At bench,

the FAA decided an EIS was needed. The

same deference is due the FAA's decision

here,

14.

controversy" problem. As Mr. Chief

Justice Marshall explained in Osborn v.

The Bank of the United States (1824) 9

Wheat. (22 US) 738, 819:

"(The judicial] power is capable

of acting only when the subject

is submitted to it by a party

who asserts his rights in the

form prescribed by law. It then

becomes a case, and the consti-

tution declares that the judicial

power shall extend to all cases

arising under the constitution,

laws, and treaties of the United

States." (Emphasis added.)

If an interested party believes the

responsible federal agency has abused

its discretion in determining whether

to prepare an EIS, he must file suit

against the agency, to overturn its

decision. That is the ".. . form

prescribed by law..." However, NO

ONE SUED THE FAA, SEEKING A DECLARATION

THAT NO EIS WAS REQUIRED. 2/ Thus, as no

5/ That some Appellees may have said,

in affirmative defenses in the suit

(continued)

15.

one filed suit to invalidate the B18

requirement, the courts laek jurisdiction

to determine that no HIS was required,

When they concluded that no HIS was re=

‘quired, the courts below decided a bogus

issue. As counsel for the FAA eandidly

said at oral argument in the Court of

Appeal, an EIS was prepared and relied

on, and should be judged on its merits,

We agree.

5/ (Continued)

brought by these Homeowners, that no

EIS was required, is not the equivalent

of their filing suit against the PAA

seeking to invalidate the HI8 requirement,

In the case at bench, all Appellees (in=

cluding the FAA) were on the same side,

No case or controversy was alleged among

the Appellees.

16,

AN B16 I6 RHQUIRED WHEN THE

UNITED STATHS GIVES ATRPORT

LOCATION APPROVAL

fhe Court of Appeals! opinion reads

as though the only purpose of the B18 was

to support the decision to federally fund

the transfer of ownership of the airport

from Lockheed to a consortium of loeal

governments, From that false premise, it

says that mere change of ownership laeks

environmental impact,

The opinion is in error,

As the decision paper of the Beeretary

ef Transportation notes, the HI8 was

needed to support two federal actions)

e one was the funding of the

purehase;

e the other was loeation approvals

"The gg po action alse

ineludes airport leeation

L7,

approval sinee this project

ie the first Federal action

invelving the Airport and

Airway Development Aet of

1970 at Hollywood=Burbank

Airport." (AR 41)

The opinion ignores location approval,

What the Seeretary did = based on the

hig = was to approve the loeation of an

airport whieh has the environmental im=

paets shown by the are, o/ These impacts

are significant, Indeed, they are so

signifieant that Loekheed bailed out of

the airport operating business to avoid

the litigation over the damaging impacts

whieh it felt was inevitable, 2/

This Court reeently saw the type of

adverse impaets when it let stand a

damage age gn for emotional distress

eaused by airport noise |

Al. ’

—"toet, 6, 1980),

‘The prposed acquisition of

Hollywoed=Burbank Airport isa the

direet result of the announced

(continued)

LO,

"Location approval” is the most

eritieal decision that can be made about

an airport, How ean it be said that the

decision whether to approve the location

of the 60th most active airport in the

United States (AR 5) ean be made without

an HIB?

As the PAA's own rules provide:

"3, et statements

should be developed along with

econemie and teehnieal eonsi-

derations in the faeility siting

Environmental it

1/ (Continued)

intention of Loekheed Air Terminal,

Ine,, the present owner/operator, to

elese the ee by December 31, 1977,

if no aetion is taken by any governmental

body to acquire and operate the facility,

fhe decision to close the airport was

based on a determination by Loekheed that

faintenanee of the faeility was ne longer

viable because: (1) Loekheed could Fr .t

eomply with the California noise regula=

tions, (2) the — did not generate

suffieient return for its value and (3)

eontinued aperesee eould result in ex-

posure to civil litigation,” (AR 15816)

19,

and design. Careful considera-

tion of the specific site and

the effect of aircraft operations

should never be overlooked.

Where the individual location

impact or the operational use of

the facility indicates signifi-

cant environmental impact or

where significant controversy

exists or is expected, an EIS

should be prepared and circu-

lated in accordance with this

order." (FAA, Policies and

Procedures for Considering

Environmental Impacts, Appendix

2, §3), (CR 192)

Approval of the location of this air-

port could not be accomplished without an

EIS. This is all the more so when an

EIS was in fact prepared and relied on by

the United States and the public.

It is possible that the Court of

Appeals accepted the spurious argument

of the Appellees that this issue was not

raised in the District Court. This

assertion is erroneous.

20.

Much of the Homeowners District Court

case addressed the impact of this air-

port's location on its neighbors (CR 429-

477, 601-603, 618-619, 649-665).

In attempted rebuttal, the Appellees

"pooh-poohed" the Homeowners' presenta-

tion, claiming that it merely described

the status quo of this airport, located

as it is. Or, as the State put it,

" , . . the noise problem at this air-

port is a known quantity." (CR 716)

Precisely. And what the Secretary of

Transportation did was to approve the

location of an airport with known,

serious defects. That required an EIS.

The issue was litigated below.

An EIS was required because this

site was receiving its first federal

approval. The issue deserves consi-

deration on its merits.

21.

THE COURT OF APPEALS' OPINION

PROCEEDS FROM THE FALSE PREMISE

THAT THERE CAN BE NO ADVERSE

ENVIRONMENTAL IMPACT

The Court of Appeals was fooled.

Arguments by Lockheed and the Airport

Authority led that Court to conclude

(slip op., p. 4):

"The conclusion that no EIS is

required is certainly compelled

in the present case since the

evidence of record and appli-

cable law show that there will

be no deterioration from the

current state of the environ-

ment. 1/

"1/ California Government Code

Section 6546.1, which

authorized the creation of

the Hollywood-Burbank Airport

Authority, provides:

"In operating the airport,

the separate public entity

above mentioned shall not

ermit or authorize an

activity in conjunction

with the airport which

results in an increase of

22.

the size of the noise impact

area based on a community

noise equivalent level of

70 decibels as established

pursuant to Title 21,

California Administrative

Code, Chapter 2.5, Sub-

chapter 6, and shall further

comply with the future com-

munity noise equivalent

levels prescribed by such

title as it now exists or

is hereafter amended."

(Emphasis added.)

But the FAA's documents show this is

not true. The Homeowners asked judicial

notice of two recent documents (attached

to the Petition for Rehearing as an

Appendix D): a 3/25/80 letter from the

Hon. John Burton, Chairman of the Govern-

ment Activities and Transportation Sub-

committee of the House Committee on

Government Operations to the Hon.

Langhorne Bond, Administrator of the

FAA; and a 2/15/80 Noise Compliance

Finding by the FAA (concerning this

23.

airport), which was the subject of

Congressman Burton's letter.

NOISE MEASUREMENTS SHOW THAT THERE

HAS ALREADY BEEN DETERIORATION IN THE

NOISE ENVIRONMENT, contrary to what the

Appellees led the lower courts to be-

lieve. As Congressman Burton summed

it up (at p. 2 of his letter):

"When the proper comparison is

made between the stipulated 1977

‘noise impact area' and that for

June 1979, a 43 acre (12%) in-

crease is revealed as well as

an overall increase of 337 acres

or 28% in the total CNEL area."

In other words, the Homeowners were

right when they challenged the EIS as

failing to consider sufficient data

more accurately reveal the impact of

transferring the airport from private

to public ownership. The EIS speaks as

of Aug., 1977. There has been a major

increase in noise impact area since then.

24.

—/

\ ie SD :

& :

The FAA's current data show that the

severe noise-impact area is larger by

43 acres than when the EIS was prepared.

The noise has increased notwithstanding

the Court of Appeals' belief that the

law prevented such deterioration in the

environment.

The Court of Appeals was fooled.

Consideration based on the real facts

seems in order.

CONCLUSION

The opinion of the Court of Appeals

conflicts with all known authority by

disregarding the FAA's determination

that an EIS was required.

Moreover, as the Secretary of

Transportation concededly relied on

the EIS, that document merits considera-

tion to determine the validity of the

25.

Secretary's decision, even assuming

arguendo that the EIS was not required.

It is a mischief-making precedent which

ignores the foundation of a major

governmental decision. Yet that is

what the opinion below establishes.

This Court's review is needed.

Respectfully submitted,

JERROLD A. FADEM,

MICHAEL M. BERGER,

FADEM, BERGER & NORTON,

A Professional Corporation

Attorneys for the

Petitioners

26.

APPENDIX A

ENTERED FIL és D.

MAY 9 1978 MAY 8 1978

Clerk, U.S. Clerk, U.S.

District Court District Court

Central District Central District

of California of California

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

BURBANK ANTI-NOISE GROUP,

)

et al, )

Plaintiffs, } NO. CV 77-3868-IH

-e SUMMARY

BROCK ADAMS, et al, , JUDGMENT

Defendants. )

The motion of all Defendants for

summary judgment, filed February 21, 1978,

came before the Court for hearing this

date. Counsel for all parties appeared.

The Court having considered the said

motion together with the Points and

Authorities, affidavits and other evi-

dence and documents filed in support

A-l.

thereof and in opposition thereto, finds

as follows:

(a) There is no bona fide issue of

material fact tendered by Plaintiffs

which would preclude the grant of summary

judgment.

(b) Defendants are entitled to

summary judgment as a matter of law in

each of two alternative grounds.

NOW, THEREFORE, IT IS ORDERED,

ADJUDGED AND DECREED AS FOLLOWS:

1. Defendants and each of them shall

have judgment against Plaintiffs.

Plaintiffs shall take nothing by their

action against Defendants or any of them.

2. The Clerk shall transmit a copy

of this Judgment by United States mail

to counsel for all parties.

3. A transcript of the proceedings

in open court this date is ORDERED filed

immediately upon its production.

A-2.

APPENDIX B

IN THE UNITHD STATHS DISTRICT COURT

CENTRAL DIATRICT OF CALTPORNTA

HONORABLE IRVING HILL, JUDGH PRESIDING

BURBANK ANTI«NOI8E2 GROUP,

etc., et al.,

Plaintiffe and

Petitioners, Case No,

vee CV 77=3060=In

BROCK ADAMS, ete., et al.,

Defendants and

Respondents,

THE STATE OF CALIFORNIA,

acting by and through the

Department of Transporta=

tion; LOCKHEED AIR

TERMINAL, INC., and

HOLLYWOOD=<BURBANK AIRPORT

AUTHORITY,

Intervenors and

Defendants.

i i tl

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Los Angeles, California

Monday, May 8, 1978

Bel,

DON P, CRAM

Offielal Reporter ;

440 U, 8, Court House

312 North Spring Street

Los Angeles, California 90012

Telephone: 6242928

THE COURT: All right. You will be

handling it, Mr. Pach?

MR, PACH: Yes, your Honor,

THE COURT: All right. Then the

intervenor Loekheed Air Terminal,

MR, SIMON: Richard Simon and Phyllis

Gordon,

THE COURT: And you will be handling

it, Mr. Simon?

MR, SIMON: That is correct,

THE COURT: All right. The Court has

before it this morning a motion on the

part of all defendants for summary judg-

ment filed under date of February 2lat,

B=2,

There is a great deal of evidence sub«

mitted which I will not take the time to

list,

The Court, of course, has before it

48 part of that evidence the Environmental

Impact Statement == which everybody calls

"B18" for short == and the entire admin-

istrative record that accompanied it,

Also in the evidence are affidavits

from a number of seientiste and other

people. I have, of course, considered

all of the evidence,

This case involves the proposed

transfer to publie ownership of the

Hollywood=Burbank Airport, which isa now

privately owned, The acquiring agency,

whieh T will call, a® you have, HBAA,

for short, ia a joint-venture type of

public body created under state law by

three cities. The acquiring agency will

obtain federal funds to aid its purchase

B=3,

of the airport and will issve revenue

bonds for the balance.

An Environmental Impact Statement,

an EIS, was prepared. The same statement

served also as an Environmental Impact

Report, an EIR, for purposes of state law.

The state law is the California Environ-

mental Quality Act, called CEQA.

The plaintiffs in this case are a

number of homeowner groups in the vici-

nity of the airport. They seek to en-

join the acquisition. Their basic con-

tention is that the EIS was inadequate.

A subsidiary contention is advanced

in the papers which I will deal with

separately, that the provisions of the

Airport and Airways Development Act,

AADA, have not been complied with.

The motion presents four issues:

First, since plaintiffs brought a state

court action claiming inadequacy of the

B-4.

EIS as an EIR and lost the case, with

alternative state court judicial findings

by Judge Zack that no EIR was needed and,

if needed, that it was adequate, in the

light of those facts are plaintiffs --

who were identical in the state case to

plaintiffs here -- now barred by colla-

teral estoppel in the instant federal

court case? That is issue No. l.

No. 2 is, was an EIS required as a

matter of law.

No. 3 is, if needed, was the EIS

adequate, and can the Court so determine

in this summary judgment motion?

And No. 4 is the AADA matter, is

summary judgment precluded because an

issue of material fact may exist on the

question of whether the AADA was complied

with?

I am going to take up those issues

in the same order as I have presented

B-5.

them. And I will proceed now to discuss

the issue of collateral estoppel and give

you my tentative views about that.

I am persuaded that if the state

court decision was final, the plaintiffs

would be collaterally estopped and a

summary judgment would and should be

granted. But the state court action is

not final. Although I find the conten-

tion ingenious, I am not persuaded by

the defense contention that I should

ignore the California state law require-

ment of a final judgment even if I had

the discretion to do so under conflicts

of law principles.

I say that a summary judgment would

be proper if that decision was final

because of the identity of the plaintiffs

in the two cases and the identity of the

legal questions involved.

B-6.

Now, if, after considering the rest

of the motion, a trial is needed in this

case, a stay of this case might well be

granted, if defendants request one, to

see if the state court's judgment stands

up on appeal. But that matter, the

matter of a stay, will become important

only if a trial is needed in this case,

and if defendants seek any such stay.

Those are my views about the colla-

teral estoppel point. I don't propose

to take the time for any argument on

that first issue at all. And, as will

be seen from my remarks that are now

forthcoming, it's my tentative view

that the summary judgment should be

granted on other issues, but not on

collateral estoppel grounds. If it is

so granted, if course the matter of a

stay becomes moot.

I proceed to discuss the second issue

now, was an EIS needed?

I am of the tentative view that the

summary judgment ought to be granted on

this ground, the ground that no EIS was

required. One was, of course, obtained.

I don't know whether it was obtained out

of an abundance of caution because it

arguably might be required, or because

of someone's mistake of law. But which-

ever, it is my tentative view that

obtaining an EIS does not, by estoppel

or otherwise, foreclose a Court from

determining if one was required under

the law, or precludes the defendants

from urging that none was required.

There are apparently no cases on

this particular point, so logic should

prevail. That is not to say that logic,

would not prevail even if there were

some cases; but logic, as I see it,

B-8.

requires the ruling that I have indicated.

If the proposed action is not one

which would require an EIS, and a court

so determines, that ought to be the end

of the matter, even if one was obtained

and even if, arguendo, the one that was

obtained is deemed to have been

inadequate.

It's my tentative view that on this

issue the defense contention that no EIS

required, there is no disputed issue of

material fact, and defendants are en-

titled to judgment as a matter of law.

Let me document that tentative view

briefly. The action here is merely a

change of ownership. It is totally clear

that the airport will operate under the

new ownership exactly as it operated

under the old ownership in terms of any

effect on the environment.

There are now a number of cases,

District Court cases, which hold that a

change of ownership which involves the

same or essentially the same use of the

land as previously had, is not within

NEPA because it does not significantly

affect the quality of the human environ-

ment. The New Jersey case, Borough of

Fairfield v. Coleman, is very close to

our case on the facts. It involved the

public acquisition of a privately-owned

airport which the private owner wanted

to get rid of. No EIS was prepared,

although federal money was to be used to

aid in the acquisition of the airport

by the public body.

The holding is, to me, clear and

persuasive that no EIS is needed because

the aim of the ecquisition was the pre-

servation of the status quo. As that

judge points out, if there is to be

B-10 >

future new construction or expansion, an

EIS would then be needed, which of course

could be said in our situation too, even

though a whole host of barriers have been

set up to preclude any future activity of

that kind in the instant case.

Other cases along the same line as

Fairfield are Town of Groton v. Laird,

353 F.Supp 344, where three hundred mili-

tary housing units were being sold off

for the same use. And also City and

County of San Francisco v. U. S., involv-

ing a proposed lease of the Hunter's

Point Shipyards by the Navy to private

operators for the same type of use. And

there, as I recall, a summary judgment

for defendants was granted.

Again, expressing my tentative views,

I am not impressed with the things that

plaintiffs argue as precluding summary

judgnent on this ground. The claim that

B-1ll o

HBAA will be eligible for further federal

and state funds if it wants to expand its

size or increase its operational capacity

may be true, but is also irrelevant. Any

such later expansion will undoubtedly

require an EIS, if it happens; but there

is no expansion involved in this

acquisition.

The plaintiffs make much of the fact

that the FAA approval contains a clause

which states that the public authority

must “acquire” an 89 acre clear zone.

A clear zone exists right now. The clear

zone requirement is a part of the present

FAA requirements on the present owners of

operating this airport.

The clear zone concept is a way of

guaranteeing that no structures will be

built of a sufficient height on the land

in question as would interfere with take-

offs and landings.

The 89 acres in question now and for

some time past contain only vacant land

or commercial and industrial buildings.

There is no residential use of any of

that land. Nobody lives there. Those

facts are undisputed.

The HBAA can meet the requirement of

acquiring the clear zone in any one of

three ways; and that is undisputed, it

seems to me. Those three ways are to

get the area zoned so that no offending

structures can be built. The second is

to acquire an easement over the 89 acres.

And the third to acquire by condemnation

or otherwise the fee title to the 89

acres, although nothing in the require-

ment of the FAA makes it necessary to get

fee title.

In addition, this clear zone require-

ment can be met by a continued FAA waiver

as exists right now with respect to one

B-13.

or more structures that now exist on the

property and which the FAA has determined

to be non-hazardous.

It seems to me in looking at this --

and this again is tentative -- that which-

ever of these alternative methods are

employed to meet the clear zone require-

ment would not involve a significant

change in the environment, and there is

no disputed issue of material fact about

that.

Even if one postulates taking the most

extreme method of getting that clear zone,

getting fee title, and then leveling the

industrial buildings that exist, such

would not involve a significant change in

the quality of the human environment.

A case which is instructive on that

is a decision of Judge Swigert's up in

the Northern District, Durnford v.

Ruckelshaus, 3 E.L.R. 20175. There,

B-14.

federal funds were going into the con-

struction of a new fishing pier and

sewerage facility; and even though a

new sewerage treatment plant, an out-

fall project and a new pier were being

built in an area where fishing was

going on already, Judge Swigert held

| that no EIS was needed, emphasizing

that what was happening was upgrading

of the location without changing the

existing use.

Plaintiff also argues that for one

reason or another, once the public

authority gets the property, it will

have to expand its use of the property.

Plaintiff says that operation by the

HBAA will be an economic disaster and

that fact will force the expanded use

in order to pay off the revenue bonds.

Again, I see no disputed issue of

material fact precluding summary

B-15 .

judgment under this contention. First

of all, such expansion is affirmatively

prohibited by California Government Code

6546.1 as amended in March of this year,

so that no lengthening of runways is

allowable and no purchase of fee title

to residential property is allowable.

In addition, the Burbank City Council

Resolution 17390, incorporated in the

Joint Powers Agreement, prohibits capital

improvements from being undertaken or

even considered if they would increase

the existing noise levels. It prohibits

property beyond the existing boundaries

of the airport being used for airport

purposes except as required for safety

standards.

So, plaintiffs' "iffy" argument that

the law will not be observed and the

airport will have to expand at some in-

definite time in the future does not,

B-16.

in my view, require any present EIS or

preclude summary judgment on the ground

that we are discussing.

Well, much more could be said. I

intend, however, to stop here. I want

to give each side twenty minutes to dis-

cuss the tentative judgment as thus far

announced. And so that you may know

what is coming, I will tell you that I

tentatively propose to grant the summary

judgment also on the alternative ground

that if an EIS is necessary, it is ade-

quate. And I, of course, after giving

you the thinking behind that tentative

judgment, will allot separate time for

arguing that aspect of the matter.

Mr. Fadem, we will hear you first.

MR. FADEM: We are prepared to submit

on the written papers, you Honor.

THE COURT: Very well.

B-17 .

The indicated judgment is in favor of

defendants. Do they desire to argue the

matter at all?

MR. PACH: The HBAA does not, your

Honor.

THE COURT: Anybody else on the

defense side?

MS. HALBREICH: No, your Honor.

MR. CONNOR: Nothing from the State

of California, your Honor.

MR. SIMON: No, your Honor.

THE COURT: Do any of you on the

defense side believe that anything I

have expressed in terms of the tantative

judgment on this ground may be incorrect

legally, or needs revision, or a differ-

ent emphasis?

If you do -- why don't you think

that over. We will take a ten-minute

recess, and then I will hear from you

about that.

B-18.

(Short recess.)

THE COURT: Are there any matters

that any defense counsel desires to take

up along the line of my last inquiry

before we go on to the next point?

MR. PACH: No, your Honor.

THE COURT: All right. I now proceed

to discuss and indicate the tentative

decision with respect to the third issue,

the alleged inadequacy of the EIS. We

assume here, arguendo, that an EIS was

required as a matter of law.

To properly approach the question of

the adequacy of this EIS, one must start

with a discussion of the scope of judi-

cial review of an EIS and the standards

for judicial review as they exist in this

circuit. Then one must consider whether

and to what extent a claim of inadequacy,

a particular claim, raises a disputed

issue of material fact.

B-19.

The Ninth Circuit has made it clear

in Latham v. Brinegar, 506 F.2d 677, that

the question of whether an EIS complies

with the requirements of NEPA as a proce-

dural matter is governed by Section 706

(2) (D) of the APA, the Administrative

Procedure Act.

How does one determine whether an

EIS meets that standard? Again, our

circuit has given us good guidance in

Trout Unlimited v. Morton, 509 F.2d 1276.

The circuit amplified the rule of reason

standard in this way: They said that an

EIS is to be deemed in compliance with

NEPA when its form, its content and its

preparation substantially accomplished

two things: First, it provided the deci-

sion makers with a sufficiently detailed

environmental disclosure to aid in the

substantive decision of whether to pro-

ceed or not with the project in light of

B-20.

its environmental consequences; and

second, it made available to the public

information of the project's environ~

mental impact and encouraged public

participation in the development of

that information.

It is, I believe, undebatable that

a reviewing court's function is not to

second guess the administrative agency

on the question of whether the public

interest would be well or poorly served

by the project. The court should not

stop the project even if it feels that

the agency has blundered in its decision

to undertake the project. That was

stated by our circuit in the recent

Matsumoto case.

As the Second Circuit forcefully

said in County of Suffolk, the reviewing

court is no super agency empowered to

substitute its scientific expertise for

B-21.

the evidence received and considered by

the agency. County of Suffolk enunciates

that the court's job is to determine if

the EIS was compiled in objective good

faith and to determine whether the re-

sulting statement would permit the

decision-maker to fully consider and

balance the environmental factors. The

court, said this Second Circuit opinion,

is to determine if the authors made an

objectively adequate effort judged in

the light of the rule of reason to com-

pile and present all of the significant

environmental factors and alternatives.

On the matter of summary judgment

now, where adequacy is challenged, it

is now clear in this circuit that a

summary judgment may well be appropriate

despite the existence of affidavits from

scientists and others buttressing a claim

by plaintiffs of inadequate consideration

B-22.

by the framers of the study of various

things.

The case that validates summary

judgment in such a situation is Friends

of the Earth v. Coleman, decided in

1975, at 513 F.2d 295.

As Judge Wright explains in that

opinion, there is no genuine issue for

trial unless the plaintiff is asserting

versions of the facts which, if true,

would enunciate a legal theory that

would remain viable and entitle the

plaintiff to judgment as a matter of law.

The case stands for the proposition

that where plaintiff is claiming inade-

quacy, it is not enough to show that

experts may differ or that every possible

alternative was not considered. Even if

both of those are true, there would not

be created an issue of material fact when

one keeps in mind the proper scope of

judicial review.

B-23 .

As I toid you, I came to the tentative

conclusion that under the teachings of

Friends of the Earth this summary judgment

should he granted on this «..* ~etive

ground, snavaly, that no bona ride issue

of material fact has been tenderec t a®

would permit the Court to determime -

this EFS mev have been inadequate: ox,

converses,, tit no such ige.> haz been

tended as to miicn am affirmat. -e

finéinyg for the piaimtif fs would wake

the FIS inadequate.

Piaintiffs spend most of theirs tome

under this heading in attacking «f@ use

of the CNEL ne ies Measurement technique

or standard. ‘their claim that other

possible standareu were ignoréri by the

framers of the study is factually *rong.

The EIS on its face shows that the exist-

ence of other standards was known and

noted.

B-24 °

The choice of the CNEL is not shown

to have been so unreasonable as to make

this EIS inadequate even if one takes at

face value the affidavits on the subject

submitted by plaintiffs. At most, if all

of those affidavits are deemed true, they

establish a disagreement among experts.

In looking at this matter of the CNEL

one might come to the conclusion that the

CNEL standard which has been adopted by

the state legislature of California as

the standard that must be met under the

state's police power so as to impose no

more annoyance and harm to the citizenry

as is absolutely required for running

airports, that such a standard would be

presumptively and perhaps even per se a

reasonable standard to be adopted in an

EIS. Now, whether it is per se reason-

able as a matter of law merely because

the state has adopted it, I don't have

B-25.

to decide. But I do decide that its use

is reasonable and permissible; and the

claim made that its use was improper does

not raise a bona fide issue of material

fact that would establish, if plaintiffs'

version is correct, the inadequacy of the

report.

I note in this connection that there

are federal regulations developed by the

FAA for the contents of an EIS involving

airports. They have been cited to me by

the defendants. I won't swear to the

citation, but my note is that the cita-

tion is 42 Federal Register 32630. But

those regulations explicitly authorize

the use of the CNEL in such EIS situa-

tions. And this EIS obviously meets

those FAA standards not only with respect

to the CNEL but in other respects, as

well. And plaintiffs do not dispute that

in their papers so far as I can see.

B-26.

I am not going to take time to dis-

cuss in detail, and perhaps not at all,

most or all of the inadequacy claims

asserted by plaintiffs. I have analyzed

all of them. At most, they fall under

the category of a scientific dispute

among experts. Moreover, many of the

things that plaintiffs say are not dis-

cussed in the EIS are in fact adverted

to in it.

I will discuss briefly plaintiffs

claim o* so-called newly-discovered

evidence dealing with the risk of air-

port noise to unborn children. And I

will discuss briefly plaintiffs' claim

that the bond issue having to go to

$24,000,000 instead of $12,000,000, as

envisioned at the time ot the EIS, makes

the EIS inadequate.

As to the unborn children, even if

this falls under the category of newly-

B-27.

discovered evidence because of a new

report coming out, we have a clear

statement from the United States Supreme

Court in the most recent authority in

the whole environmental field that the

courts have no business sending EIS's

back because some new technological

discovery or research has occurred in

the meantime.

I am not going to take the time to

quote that opinion, bet the language

on this subject is quite strong. The

case, of course, is Vermont Yankee

Nuclear Power Corporation v. Natural

Resources Defense Council, decided last

month, April 34d, and found at 46 Law

Week 4301.

The entire tone of that opinion is

that the courts should govern themselves

with much greater restraint in review-

ing, second-guessing and possibly

B28.

sending back EIS's for correction at the

cost of stopping projects that have been

administratively validated after fair and

reasonable inquiry.

The new material on unborn children

that plaintiffs are talking about is in

an article which plaintiffs have provided

to me. It is nowhere near the kind of

revolutionary unforeseen discovery that

could even conceivably warrant stopping

this project and sending back the EIS for

consideration of the new material.

As to the $24,000,000 bond issue --

and defendants agree that it will have

to go to that sum because of increased

costs -- again, and also, I don't think

that that could even conceivably warrant

sending the EIS back for further consi-

deration. I will have some more to say

about that in a moment. It deals with

the economic viability of the project.

B-29.

On the issue of air pollution, that's

another one I want to comment about

briefly because plaintiffs devote a good

deal of time and effort to it. It, in my

view, again, involves only a dispute

among scientific experts. The EIS shows

a full and fair and reasonable considera-

tion of the whole air pollution problem.

A lot of effort is given by plain-~

tiffs' questioning the AVAP model used

to gauge air pollution. It is at inact

for plaintiffs a dispute of experts.

But there is probably not even a dispute

among the experts as to this, because

plaintiffs' expert, who submits an affi-

davit to me, testified at the state

court trial that it was, the AVAP was

accepted by the scientific community as

the state of the art.

After advancing all of the numerous

claims of what was not considered or

B-30.

not adequately considered by the framers

of this EIS, the plaintiffs make one

argument which is not related to that.

The plaintiffs now argue that I should

hold the EIS inadequate, or at least

give them a trial to prove its inade-

quacy because the EIS is not couched in

language that the public could under-

stand.

The Supreme Court dealt with that

matter in the new case of Vermont Yankee.

As in Vermont Yankee, there is in this

case no evidence in the record of any

lack of understanding or protest about

complexity of verbiage, even though the

record demonstrates that there were

well-attended, large public hearings.

In Vermont Yankee the Supreme Court

seems to be saying that unless the

agency is given some notice of this

problem of technical verbiage so that

B-31l.

it can consider remanding the report

for redrafting in more easily-understood

language, it is too late to raise that

question after the decision has been

made.

Plaintiffs' claims on this issue are

contained in an extremely well-written

affidavit by Professor Lanham; but they

do not, in my view, raise any bona fide

dispute of material fact which would

warrant trial on the question of

readability.

I said I would discuss briefly the

change in the amount of the bonds, and

at the same time I discuss the other

issues tendered by plaintiffs as to the

project's fiscal feasibility. Even if

plaintiffs' position is taken as totally

correct, I do not regard these claims

as invalidating the EIS and as raising

any bona fide dispute of material fact.

B-32.

Economic viability is not a required

part of an EIS. Trout Unlimited stands

for that proposition. And Judge Renfrew's

opinion in Environmental Defense Fund,

Inc. v. Armstrong, 352 F.Supp 50, stands

for that proposition.

Environmental costs need to be consi-

dered and balanced against total benefits

including economic benefits of the pro-

ject. But plaintiffs would have us

equate with that kind of balancing what

they say is the foreordained economic

failure of this airport under public

operation, and that kind of economic

forecasting simply has no place in an

EIS.

The fact that these framers got a

very preliminary economic feasibility

statement from a national accounting

firm was a decision of theirs that they

made for their cwn purposes and it was

B-33.

not a necessary part of an EIS.

Well, with apologies for its length,

I have finished what I propose to say

concerning my tentative decision of this

part of the case on this issue. And

before opening the matter to argument, I

want to deal for a minute only with the

AADA claim.

It is not at all clear that this

acquisition involving the preservation

of the status quo as to the operation of

this airport comes under Section 1716.

Section 1716(d) (1) ways that the Secretary

of Transportation cannot approve an air-

port development project "involving the

location of an airport, an airport runway,

or a runway extension" unless the spon-

soring agency certifies that there has

been the opportunity for public hearings

to consider the economic, social and

environmental effects of the project and

B-34.

its consistency with urban planning.

I doubt whether the project that we

are dealing with here is one that meets

the definition I have just quoted. But

even if, arguendo, it does meet that

definition, there is no dispute of mate-

rial fact that would create any issue

about whether the opportunity for public

hearings was afforded. Without dispute

it was afforded. And the claim that new

public hearings are now needed because

of the new developments that I have men-

tioned before, the new article about

unborn children and the larger amount of

bond, is answered, I believe, in Vermont

Yankee. You don't need a new hearing

every time there is something new in

the technological or economic picture.

Well, again, I am prepared to allot

equal time to both sides to discuss the

tentative decision on this point.

B-35.

Mr. Fadem, do you wish to be heard

on this aspect of the matter?

MR. FADEM: No, your Honor. We

desire to submit on the written papers.

THE COURT: What about the various

defendants?

MR. PACH: The Hollywood-Burbank

Airport Authority will submit it, your

Honor.

MR. SIMON: So will Lockheed.

MR. CONNOR: Likewise for the State

of California, Department of Transporta-

tion.

MS. HALBREICH: So will the federal

defendants, your Honor.

THE COURT: Well then, the tentative

decision of the Court in all respects

will be the decision of the Court.

As counsel on both sides know, ina

very few hours' time I have to leave for

Guam, and I cannot get this judgment out,

B-36.

I don't think -- I will make the effort --

before I leave. It if has to be done

while at Guam, I will do it there and

send it out from there.

I will prepare my own judgment. I

propose in it merely to find the essen-

tials, to wit, that there is no bona

fide issue of material fact, and that the

defendants are entitled to judgment as a

matter of law.

My comments that I have made today

are an attemp. to explain the alternative

grounds for so holding and I, therefore,

would ask the prevailing parties, the

defendants, to order a transcript, which

I now order to be filed when it is pro-

duced; and which I also order shall accom-

pany the record on appeai, if there is an

appeal.

Would somehody on the defense side be

willing to undertake that?

B-37 .

MR. PACH: Yes, your Honor. We will

do that.

THE COURT: I would like to ask defen-

dants if they see any need for a more

comprehensive judgment than I have

outlined?

MR. PACH: No, your Honor. Speaking

for all the defendants, I am sure that

is quite adeguate.

THE COURT: Is this a judgment of the

kind on which there should be set any

bond on appeal? Or is the bond on appeal

requirement confined to money judgments?

I haven't given any thought to that

question at all, and perhaps you haven't

either.

MR. PACH: I don't anticipate any,

your Honor. I am trying to think in my

own mind how it would be applicable.

THE COURT: My guess is that research

would determine that setting any bond on

B-38.

appeal would be improper since no money

judgment has been awarded. But I raise

the question with you because I won't

have any chance to discuss it with any-

body for the next five or six weeks.

I am going to assume that is the

situation, and there will be nothing

provided in this judgment about bond on

appeal.

One more thing. It is not, of course,

part of any judgment I have made. I have

made this decision purely on the basis

of the law as I underscand it. But I

want to hand to the clerk now for incor-

poration in the record an article by

Los Angeles City Councilman Marvin

Braude in tne March 26, 1978 issue of the

Los Angeles Times Opinion Section. This

article is entitled "Will We Now Drown In

Paper Pollution? It Is Raining

Environmental Impact Reports."

B-39.

Just as a personal aside, I think

from a policy point of view that Mr.

Braude correctly analyzes what is

happening in the current scene.

I fervently hope this matter can be

brought to a prompt conclusion without

any unnecessary delay. And I therefore

order that if there is an appeal, no

extension of time be sought at any stage

of the appeal. That goes for the desig-

nation of the record and the filing of

each and every brief by both sides.

If there is nothing further that any

counsel desires to say, I am prepared to

adjourn.

MR. FADEM: Well, I just offer --

THE COURT: Why don't you come to the

podium, please.

MR. FADEM: Yes, sir.

The last order of the Court, I have

made no effort to investigate as to

B-40.

whether it lies within the power of this

Court to determine the conduc’. o£ matters

before the higher court. But I do want

to register our objection to what we

think are the unwarranted implications

of that article.

THE COURT: If there is nothing

further, the court will stand adjourned.

MR. PACH: Thank you, your Honor.

MR. SIMON: Thank you, your Honor.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BURBANK ANTI-NOISE GROUP,

)

etc., et al., FILED

Plaintiffs- )

Appellants, ) JUL 14 1980

ve ) Richard H. Deane

7 yClerk, U.S. Court

NEIL E. GOLDSCHMIDT, * of Appeals

etc., et al.,

Defendants-

)

Appellees. )

)

THE STATE OF CALIFORNIA, ) No. 78-2629

acting by and through the)

Department of Transporta-)

tion; LOCKHEED AIR

TERMINAL, INC.; and

HOLLYWOOD- BURBANK

AIRPORT AUTHORITY,

OPINION

Intervenors-

Defendants-

)

Appellees. )

* We substitute the name Neil E.

Goldschmidt, the successor to the

original defendant Brock Adams as

Secretary of Transportation, per Fed.

R. App. P. 43.

C-l.

Appeal from the United States District

Court For the Central District of

California

Before: KILKENNY and CHOY, Circuit

Judges, and EAST,** District

Judge

PER CURIAM:

Appellants Burbank Anti-Noise Group,

et al., appeal the adverse summary judg-

ment entered by the District Court on

May 8, 1978, involving an interpretation

of the National Environmental Policy Act

(NEPA) as it applies to an agreement for

the purchase of the Hollywood-Burbank

Airport (Airport), owned by the Lockheed

Air Terminal, Inc. (Lockheed), by the

Hollywood-Burbank Airport Authority

(Authority) with the aid of federal

financial assistance to the Authority

** Honorable William G. East, Senior

United States District Judge for the

District of Oregon, sitting by designation.

C-2.

with the aid of federal financial assist-

ance to the Authority from the Federal

Aviation Administration (FAA).

Mootness Issue:

During the course of the oral argument,

the appellees raised the issue of mootness

of the appeal, thereby questioning this

Court's jurisdiction. E.g., Preiser v.

Newkirk, 422 U.S. 395, 401-02 (1975);

Local No. 8-6, Oil, Chemical and Atomic

Workers International Union, AFL-CIO v.

Missouri, 361 U.S. 363, 367 (1960);

Rosenfeld v. Southern Pacific Co., 444

F.2d 1219, 1221 (9th Cir. 1971).

The parties were granted additional

time to brief the issue which we first

address. The appellees contend that the

case is moot because the federal funds

have already been distributed and title

to the Airport transferred, and note that

C-3.

appellants did not seek an injunction

pending appeal. They urge us to follow

Friends of the Earth, Inc. v. Bergland,

976 F.24 1377, 1379. (9th Cir. 1978), in

which this Court held:

"Where the activities sought to

be enjoined have already occurred,

and the appellate courts cannot

undo what has already been done,

the action is moot. In Matter of

Combined Metals Reduction Co.,

yf th Cir. °

This is especially so where, as

here, no stay on appeal has been

sought. Id. at 189."

Friends of the Earth does not govern this

case, however, because the actions here

can be undone. Unlike Combined Metals

Reduction Co., all parties to the trans-

actions are before the Court. If appel-

lants were to prevail on the merits of

this appeal, this Court could remand

with instructions to the District Court

to order a transfer of the Airport title

back to Lockheed and a return of the

C-4.

money to the FAA. See Gonzales v. Costle,

463 F.Supp. 335, 338 (N.D. Cal. 1978).

Nothing has transpired that has deprived

this Court of the power to affect the

rights of the litigants in this case.

Rosenfeld, 444 F.2d at 1221. The issues

on appeal are not moot.

On the Merits.

We agree with the District Court that

NEPA did not require the FAA to prepare

an environmental impact statement (EIS)

concerning federal financial assistance

for the Airport acquisition. Because we

hold that no EIS was necessary, we need

not consider whether the EIS actually

prepared by the FAA was adequate nor

whether this suit is barred by collateral

estoppel.

NEPA requires federal agencies to

prepare an EIS for all "major Federal

actions significantly affecting the

C-5.

quality of the human environment." 42

U.S.C. § 4332(2)(C).

"An EIS must be prepared if

‘substantial questions are

raised as to whether a project

- . “may cause significant

degradation of some human en-

vironmental factor."' City of

Davis v. Coleman, 521 F.2d 661

th Cir. 75), quoting

Save Our Ten Acres v. Kreger,

472 F.2d 463, 467 (5th Cir.

1973)." City & County of

San Francisco v. United States,

F. . 3 th Cir.

1980).

’

An EIS is not required, however, when

the proposed federal action will effect

no change in the status quo. Committee

for Auto Responsibility v. Solomon, 603

F.2d 992, 1001-03 (D.C. Cir. 1979). An

EIS need not discuss the environmental

effects of mere continued operation of

a facility. Westside Property Owners v.

Schlesinger, 597 F.2d 1214, 1217-18

(9th Cir. 1979). In Borough of Fairfield

v. Coleman, 8 ERC 1518, 1521 (D.C. N.J.

C-6.

1975), aff'd without opinion, 532 F.2d

745 (3d Cir. 1976), a case almost iden-

tical to this one, the Court held "as

a matter of law that no Environmental

Impact Statement is required for the

act of financing the acquisition of an

existing airport." The following

language is clearly analogous to the

present case:

"The only aim here is the

preservation of the status

quo. No further development

is encompassed within the

framework of the Grant

Agreement sub judice. In

fact, as the defendants

point out, any further

development of the airport

without first amending and

altering the existing Air-

port Layout Plan is pre-

cluded under 14 C.F.R.

§ 152.5(a).“ Id.

A similar result was reached in the

recent case of City & County of San

Francisco v. United States, 615 F.2d 498

(9th Cir. 1980). In that case, this

C-7.

Court held that no EIS was required for

the Navy to lease its shipyard to a

private ship repair company, despite a

two year period of inactivity prior to

the transfer. No modifications were

allowed that would interfere with the

Navy's reuse at some time in the future.

The Court stated:

"It was not unreasonable to

regard the leasing of the yard

as a phase in an essentially

continuous activity. In these

circumstances the Navy was not

required to evaluate the en-

vironmental consequences of

the lease as if the Navy were

proposing to establish this

multi-million dollar industrial

complex for the first time."

615 F.2d at 501.

Although adverse impact was acknowledged

from reactivation of the shipyard, the

Court held that the agency had reasonably

concluded that the lease would not result

in significant deterioration of the

environment. The conclusion that no EIS

C-8.

is required is certainly compelled in

the present case since the evidence of

record and applicable law show that there

will be no deterioration from the current

state of the environment.—

1/ California Government Code Section

6546.1, which authorized the creation

of the Hollywood-Burbank Airport Authority

provides:

"In operating the airport, the

separate public entity above men-

tioned shall not permit or autho-

rize any activity in conjunction

with the airport which results in

an increase of the size of the

noise impact area based on a

community noise equivalent level

of 70 decibels as established

pursuant to Title 21, California

Administrative Code, Chapter 2.5,

Subchapter 6, and shall further

comply with the future community

noise equivalent levels prescribed

by such title as it now exists or

is hereafter amended.

"The separate public entity shall

not authorize or permit the

lengthening of runways defined

herein as the paved portions of

the runways presently on airport

property, or the purchase of fee

title to condemned real property

zoned for residential use as of

the effective date of this statute."

(continued)

C-9.

This case simply does not present the

type of situation NEPA was intended to

address.

"To compel [the agency] to formulate

an EIS under these circumstances

would trivialize NEPA's EIS require-

ment and diminish its utility in

providing useful environmental

analysis for major federal actions

that truly affect the environment."

Committee for Auto Responsibility,

603 F.2d at 1003.

The summary judgment of the District

Court is AFFIRMED.

1/ (Continued)

Burbank City Council Resolution 17390

prohibits capital improvements if they

would increase existing noise levels.

The joint powers agreement of the Cities

of Burbank, Glendale, and Pasadena for

the formation of the Authority and the

grant agreement with the FAA similarly

preclude any increase in noice levels.

c-10.

APPENDIX D

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

BURBANK ANTI-NOISE GROUP,

etc., et al., FILED

)

APpeLsants, SEP 8 1980

)

si ) Richard H.

BROCK ADAMS, etc., et OBEY jp’ e

’ . e

)Court of

) Appeals

THE STATE OF CALIFORNIA, )

acting by and through the )NO. 78-2629

Department of Transporta- )

tion; LOCKHEED AIR )

TERMINAL, INC.; and

HOLLYWOOD-BURBANK

AIRPORT AUTHORITY,

Appellees.

Intervenors and

Appellees.

Appeal from the United States District

Court, Central District of California

Before: KILKENNY and CHOY, Circuit

Judges, and EAST, District

Judge.*

* The Honorable William G. East, Senior

United States District Judge for the

District of Oregon, sitting by

designation.

D-1l .

The panel as constituted in the above

case has voted to deny the petition for

rehearing and to reject the suggestion

for a rehearing in banc.

The full court has been advised of

the suggestion for an in banc rehearing,

and no judge of the court has requested

a vote on the suggestion for rehearing

in banc. FRAP 35 (b).

The petition for rehearing is denied

and the suggestion for a rehearing in

banc is rejected.

APPENDIX E

STATUTES AND REGULATIONS

FAA, Policies and Procedures for

Considering Environmental Impacts,

Appendix 2, § 3:

"3. Environmental impact statements

. » +» Environmental assessments

should be developed along with

economic and technical consi-

derations in the facility siting

and design. Careful considera-

tion of the specific site and

the effect of aircraft operations

should never be overlooked.

Where the individual location

impact or the operational use of

the facility indicates signifi-

cant environmental impact or

where significant controversy

exists or is expected, an EIS

should be prepared and circulated

in accordance with this order."

49 U.S.C. § 1916(c) (4):

"(4) It is declared to be national

policy that airport development

projects authorized pursuant to

this subchapter shall provide

for the protection and enhance-

ment of the natural resources

and the quality of environment

of the Nation. In implementing

this policy, the Secretary shall

consult with the Secretary of

E-l.

the Interior and the Adminis-

trator of the Environmental

Protection Agency with regard

to the effect that any project

involving airport location, a

major runway extension, or

runway location may have on

natural resources including,

but not limited to, fish and

wildlife, natural, scenic, and

recreation assets, water and

air quality, and other factors

affecting the environment, and

shall authorize so such project

found to have adverse effect

unless the Secretary shall

render a finding, in writing,

following a full and complete

review, which shall be a matter

of public record, that no feas-

ible and prudent alternative

exists and that all possible

steps have been taken to mini-

mize such adverse effect."

42 U.S.C. § 4332:

"The Congress authorizes and

directs that, to the fullest extent

possible: (1) the policies, regula-

tions, and public laws of the United

States shall be interpreted and ad-

ministered in accordance with the

policies set forth in this chapter,

and (2) all agencies of the Federal

Government shall —

or report on proposals for legisla-

tion and other major Federal actions

significantly affecting the quality

of the human environment, a detailed

statement by the responsible official

on —

(i) the environmental impact of

the proposed action,

(ii) any adverse environmental

effects which cannot be avoided

should the proposal be implemented,

(iii) alternatives to the

proposed action,

(iv) the relationship between

local short-term uses of man's

environment and the maintenance and

enhancement of long-term productivity,

and

(v) any irreversible and irre-

trievable commitments of resources

which would be involved in the

proposed action should it be

implemented."

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.