Appendix — Suburban O'Hare Commission v. Dole

Supreme Court brief1986

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Text

86- 1

No. Supremes Court, U.S.

tts D

ie JUL 2 1988

Supreme Court of the Anite went IR.

OctTosBer TERM, 1985

SUBURBAN O’HARE COMMISSION; THE VILLAGE OF

ADDISON; THE VILLAGE OF BENSENVILLE; THE CiTY

OF DES PLAINES; THE VILLAGE OF ELK GROVE VIL-

LAGE; THE CITY OF ELMHURST; THE VILLAGE OF

FRANKLIN PARK; THE VILLAGE OF HARWOOD

HEIGHTS; THE VILLAGE OF ITASCA; THE VILLAGE OF

NILES; THE VILLAGE OF NORRIDGE; THE CITY OF

PARK RIDGE; THE VILLAGE OF SCHILLER PARK; THE

CITY OF WOOD DALE; and LAWRENCE C. BIENEMAN,

Petitioners,

v.

ELIZABETH HANFORD DOLE, Secretary of the Department

of Transportation, UNITED STATES DEPARTMENT OF

TRANSPORTATION; RUSSELL A. OLSON, Regional Rep-

resentative of the Department of Transportation, Region V;

DONALD ENGEN, Administrator of the Federal Aviation

Administration; FEDERAL AVIATION ADMINISTRATION;

PAUL BOHR, Director, Great Lakes Region, Federal Aviation

Administration; JOHN GUIDOTTI, Supervisor, Illinois Sec-

tion, Chicago Airports District Office, Federal Aviation Admin-

istration; THE CITY OF CHICAGO, a municipal corporation;

and JEROME R. BUTLER, Commissioner of the Department

of Aviation of the City of Chicago,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

Of Counsel:

JOHN L. ZIMMERMANN

1190 South Elmhurst Road

Suite 200

Mount Prospect, IL 60056

(312) 439-2500

JOSEPH V. KARAGANIS

A Bruce WHITE

Kk .THLEEN M. DONAHUE

ELLEN Lots Z1sook

BELL, Bovp & LLoyp

Three First National Plaza

Suite 3200

Chicago, IL 60602

(312) 372-1121

Attorneys for Petitioners

Pandick Midwest, Inc., Chicago © 733-6000

ee os

i

TABLE OF CONTENTS

Order, dated April 14, 1986, summarily affirming Sub-

urban O’Hare Commission, et al. v. Dole, et al., 603

F.Supp. 1013 (N.D. Ill. February 28, 1985) ( No. 85-

Order, dated April 3, 1986, denying rehearing en banc

in Suburban O’Hare Commission, et al. v. Dole, et al.,

—— > ( No. 85-1073, March 13, 1986) ........

Suburban O’Hare Commission, et al. v. Dole, et al.,

daa ae (No. 85-1073, March 13, 1986) ........

Suburban O’Hare Commission, et al. v. Dole, et al., 603

a, DES CIEE. Ges COD eisstectisctctitcccasiccnsiiccavevconese

Letter, dated November 14, 1984, from John Guidotti,

Supervisor, Illinois Section, Chicago Airports District

Office, Federal Aviation Administration to Thomas

Kapsalis, Commissioner, Department of Aviation,

City of Chicago, approving March 1984 Airport

Layout Plan for Chicago O’Hare International Air-

SNE case hiccaallaisctinssiedaddiagtibdatachiddauhinchataasiebumianbanepagtemeominiindaiea

Record of Decision, Airport Layout Plan, Chicago

O’Hare International Airport, dated November 14,

Ps iacaindas Tatiana tala piccinsccethcgpenisncicaavenanianekentddipaatnibiopnens

Chicago O’Hare International Airport, Airport Layout

PAGE

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A-3

A-4

A-31

A-69

A-72

Pian Dated March 1984, Airspace Review Comments A-103

United States of America, Department of Trans-

portation. Federal Aviation Administration, Great

Lakes Region, Des Plaines, Illinois, Jn the matter of

the petition of Chicago O’Hare-International Airport,

Chicago, Illinois for an exemption from Section

139.81 (a) of the Federal Aviation Regulations,

Regulatory Docket No. 84-AGL-139.81E-4508,

I FIN BFR BW cdeiccccrdeicinatsccsdsidecndadutiadbiidininsiin

ii

PAGE

Consent Decree, entered October 14, 1982, in State Of

Illinois ex rel. Scott v. Butterfield, No. 74 2410,

United States District Court for the Northern District

OE TITS rrenasecesinscensionivesninenernieigiieiinnaamaelaiS A-109

Administrative Procedure Act, 5 U.S.C. Section 554....... A-118

Administrative Procedure Act, 5 U.S.C. Section 556....... A-120

Administrative Procedure Act, 5 U.S.C. Section 557....... A-122

Administrative Procedure Act, 5 U.S.C. Section 706 ....... A-126

Administrative Orders Review Act, 28 U.S.C. Section

DOAF .ciiscncsicsiéinsnsintecstabcansmpbsddommetndnamandanaamanan A-127

National Environmental Policy Act of 1969, 42 U.S.C.

Sects SF29-GIGN eveccceccscccscsentiliciiniesinanaacmmaiaa A-128

Federal Aviation Act, 49 U.S.C. Section 1486 ................. A-145

Airport and Airway Improvement Act of 1982, 49

OU B.C. Bectiet BIO vcs sievsnisnnissteosencseitssiaindanaaae A-147

Airport and Airway Improvement Act of 1982, 49

FSC. GO TINO iccctinicinesictishivvinecteabcescccimupeaanpaanan A-152

Affidavit of Robert H. Haveman........................cccccsccscoeees A-158

AGiidavia of Josaple 1... COs .eciscccsasnssoccssersccicsnsessnsssnnesion A-198

Affidavit of Richard L. De Neufiville .....................ceeeeeeees A-238

Affidavit of Barry Bateman ...................cccsscccscccssesescees seeeee A-249

AM Gavia Of Wien C. BGIEYy ccsicevevecntvvnncssincnmncsnesesieaieanes A-252

AGRdavin of Bamied Me. FADO eccccsnceicscnscsnssescsstncnascsasesmecs A-261

ASidavin of Dewiglet ©. Dai isnsasscccsencerenscavessocsserressonsonpes A-266

Affidavit of Frederic C. Hambur...................sccsseeceeeeeees A-269

Affidavit of Bertram W. Carnow....000...........-cccessseeseseseeeeees A-287

ATRdvit OF MOT C., TRG occ cncsccccceciessncsersrnsttniventadannea A-294

Supplemental Affidavit of William C. Sperry.................. A-297

Atidavit of Wihartins 5. TOE iscsicssvccvetenccnsssatensosesnnnnccmmana A-302

Supplemental Affidavit of Joseph L. Carroll ..................-. A-304

ee

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United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 14, 1986.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. LUTHER M. SWYGERT, Senior Circuit Judge

Hon. JESSE E. ESCHBACH, Senior Circuit Judge

No. 85-1423

SUBURBAN O’HARE COMMIS. |

SION et ai.

oh Appeal from the United States

Plaintiffs-Appellants, District Court for the North-

ern District of IMinois, East-

y. 3 ern Division.

ELIZABETH HANFORD DOLE, No. 84 C 10387

Secretary of the Department of Ilana D. Rovner. Judge

Transportation, et al.,

Defendants-Appellees. ,

This matter comes before the court for its consideration of

the following documents:

1. “MEMORANDUM FOR FEDERAL RESPOND-

ENTS” filed herein on April 2, 1986.

2. “SUGGESTIONS OF APPELLEE CITY OF

CHICAGO REGARDING DISPOSITION OF DOCKET

NO. 85-1423” filed herein on April 3, 1986.

3. “MEMORANDUM OF PLAINTIFFS-APPEL-

ANTS” filed herein on April 3, 1986.

A-2

Plaintiffs-Appellants originally sought to challenge the

FAA’s decision to approve the O’Hare expansion in the district

court. Judge Rovner dismissed the case for lack of jurisdiction

finding that jurisdiction rested exclusively with the court of

appeals. Following Judge Rovner’s decision plaintiffs-appel-

lants filed both an appeal from the district court’s dismissal ( 85-

1423) and an original petition for review (85-1073) in this

court.

We held the appeal from Judge Rovner’s order in

abeyance pending our decision on the petition for review.

On March 13, 1986 we issued our opinion in 85-1073

finding that this court had exclusive jurisdiction over the case.

On March 20, 1986 we invited the parties to the instant appeal

to suggest the proper disposition of appeal 85-1423 in light of

our decision in 85-1073.

Appellees suggested that we summarily affirm the district

court. Appellants did not contest this but suggested that we

wait until the petition for rehearing in 85-1073 had been

disposed of. On April 3, 1986, we denied the petition for

rehearing in 85-1073. Accordingly,

IT IS ORDERED that the February 28, 1985 order of the

district court, which is the subject of appeal 85-1423 is hereby

summarily affirmed.

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 3, 1986.

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. LUTHER M. SWYGERT, Senier Circuit Judge

Hon. JESSE E. ESCHBACH, Senior Circuit Judge

No. 85-1073

~*~

SUBURBAN O’HARE

COMMISSION, et al.,

Petitioners, =

Petition for Review of Orders

of the Secretary of the

Department of _ Trans-

portation and the Adminis-

ELIZABETH HANFORD DOLE, trator of the Federal Avia-

tion Administration, and to

Secretary of the Department of Trans- | Enforce Consent Decree.

portation, et al.,

y.

Respondents.

J

ORDER

On consideration of the petition and suggestion for a

rehearing en banc of the above matter, no active member of the

court requested any action on the suggestion for an en banc

rehearing, and all members of the original panel have voted to

deny said petition,

IT IS ORDERED that said petition for rehearing be and

the same is hereby denied.

A-4

iu tae

United States Court of Appeals

Bor the Seventh Cirrutt

No. 85-1073

SUBURBAN Q’HARE COMMISSION, et al.,

Petitioners,

v.

ELIZABETH HANFORD DOLE, Secretary of the

Department of Transportation, et ai.,

Respondents.

Petition for Review of a Decision of the

Federal Aviation Administration and

Department of Transportation.

ARGUED SEPTEMBER 27, 1985—DECIDED Marcu 13, 1986

Before CuMMINGS, Chief Judge, and SwWYGERT and

ESCHBACH, Senior Circuit Judges.

SwyGERT, Senior Circuit Judge. This case concerns

the proposed expansion of Chicago’s O’Hare International

Airport. Petitioners are a group of municipalities situated

near the O’Hare Airport and organized into the Suburban

O’Hare Commission (“‘Suburban”).! Respondents are the

1 The communities are the Village of Addison, the Village of Ben-

senville, the City of Des Plaines, the Village of Elk Grove Village,

the City of Elmhurst, the Village of Franklin Park, the Village

of Harwood Heights, the Village of Itasca, the Village of Niles,

(Footnote continued on following page)

Srna Weer hia

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No. 85-1073

Department of Transportation, the Federal Aviation Ad-

ministration (“FAA’’), the City of Chicago, and various

public officials including the Secretary of the Department

of Transportation.

or Ng gpomsmeen ny. Poet to ws aside the deci-

sion of the approving Chicago’s plan to expand the

capacity of O’Hare and to enjoin all further construction

at the location. For the reasons we now set forth the peti-

tion is denied.

I

Located on a 6,925 acre site in Cook and DuPage counties

seventeen miles northwest of downtown Chicago, O’Hare

is one of three airports owned and operated by the City

of Chicago.?

During World War II Douglas Aircraft manufactured

C-54 transport planes for the United States Air Corps

on the site of what is now O’Hare. The City purchased

the Douglas facility for one dollar in 1945, and built the

Orchard Place Airport on the site in 1946. In 1949 the

facility was renamed for Edward “Butch” O’Hare, a Navy

fighter ace and Congressional Medal of Honor recipient.

From 1926 to 1959 Midway Airport was the major air-

port of the Chicago area and the busiest airport in the

world, but chronic congestion at Midway led to the City’s

decision to make O’Hare the area’s major airfield. In 1959

the City began a massive expansion of O’Hare. By July

1962 most major air carriers had shifted operations to

O’Hare. O’Hare was designed to accommodate twenty mil-

1 continued

Schiller Park, and the City of Wood Dale. The combined popula-

tion of these communities is estimated at 400,000. Lawrence C.

Bieneman, a resident of the Village of Bensenville, is also a peti-

tioner in this case.

2 The other airports are Meigs Field and Midway Airport.

A-6

No. 85-1073

lion passengers annually, but currently approximately for-

ty million passengers a year pass through the facility. The

airport employs 35,000 people and is one of Chicago’s

largest employers.

Historically, aviation has been a closely regulated indus-

try. In 1938, when commercial aviation was still in its in-

fancy, Congress enacted the Civil Aeronautics Act. In

1958, in response to rapid and dramatic changes in the

nature of aviation, Congress replaced the Civil Aeronau-

tics Act with the Federal Aviation Act, 49 U.S.C. $§ 1301

et seg. (Chapter 20 of Title 49).

In 1946, to encourage the development of airports de-

signed to accommodate interstate and international flights,

Congress enacted the Federal Airport Act. This Act was

superseded by the Airport and Airway Development Act

of 1970. This legislation was in turn replaced by the Air-

rt and Airway Improvement Act of 1982 (“AAIA”), 49

S.C. §§ 2201 et seg. (Chapter 31 of Title 49). Both the

Federal Aviation Act and the Airport and Airway Im-

provement Act are administered by the FAA.

The Airport and Airway Development Act of 1970 made

federal funds available to certain so-called “hub” cities to

engage in a long-range planning process designed to pro-

duce an appropriate master plan for regional aviation de-

velopment. In 1975, with funding provided by the FAA,

Chicago hired Landrum & Brown, an aviation consulting

firm, to prepare a Master Plan Study for O’Hare.* The

study represented the first attempt to formulate a system-

atic plan of growth for O’Hare.

Landrum & Brown’s Master Plan Study consists of nine-

teen volumes comprising thousands of pages and examines

3 The City retained O’Hare Associates as supervising consultants

for the project. O’Hare Associates is a joint venture of partners

from Murphy-Jahn (architecture), Envirodyne (engineering), and

ao Associates (construction). L&B was the original planner of

"Hare.

No. 85-1073

various factors relevant to airport development.‘ The con-

sultants originally forecast a maximum unconstrained de-

mand of 1.4 million flight operations in the Chicago area

by 1995. Without significant expansion, Chicago’s Midway

Airport was projected to receive .3 million of those flights.

Meigs Field was to receive .1 million flights. The remain-

ing one million flignts would somehow have to be accom-

modated at O’Hare. Landrum & Brown initially concluded

that the projected demand could only be met by the con-

struction of two new runways. This result was unaccept-

able to significant segments of the suburban population

living near O’Hare. Conscious of the community ition

to the addition of new runways the City decided to limit

the growth of O’Hare, in theory eliminating the need for

the new runways until at least 1995. At the same time

the City committed itself to accommodate at least a sig-

nificant portion of the projected growth of the region’s

commercial aviation demand.

While the Master Plan Study was still in the prepara-

tion stage opponents of continued growth at O’Hare took

their — to the courts. In 1974 then-State Attorney

General William Scott sued the FAA in federal district

court alleging that the agency had violated the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321

et seq., by adopting a policy of unlimited growth at O’Hare.

State of Illinois ex rel. Scott v. Butterfield, No. 74 C 2440

(N.D. Ill. 1974). Suburban was permitted to intervene in

the litigation. The Butterfield litigation ended on October

15, 1982, when the FAA, the City, and Suburban entered

into a consent decree governing future growth at O’Hare.

The consent decree provided in relevant part:

* Using funds provided by the FAA, Suburban retained the con-

sul ot lath Puke Aeoetinis aed Es, Gaeta & Mew

man, Inc. to furnish an independent review of the L&B MPS.

Suburban’s consultants gave favorable reviews to the L&B study.

“Methodologies used by L&B for [aviation] forecasts and noise

analysis are widely used and generally accepted by the airport

community and federal agencies.” Interim Report on Review of

O’Hare Airport Master » MPS Vol. XIX at B-2.

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No. 85-1073

{ 1a. All future development at O’Hare will comply

with all then j requirements of Federal and

and procesaing.

{ 1d. Chicago agrees that it Will request the FAA

to process an Environmental Impact Statement (“EIS”)

... With to any of the following projects (or

een in scale or purpose) at O’Hare: (i)

erminal 1 and related concourses and aprons; (ii) In-

ternational Terminal; (iii) general aviation terminal;

{ lg. The FAA has not made any determination

with to the matters described in P

No. 85-1073

Advisory Committee, composed of representatives from

both the community and government, as the appropriate

forum for consideration of the relationship between O’Hare

od. - rpms + sell ype pepamcndan cory Fal

provided for the establishment of a permanent Office

of Noise Abatement charged with investigating complaints

about airport noise and with evaluating the effectiveness

of noise abatement procedures.

The parties to the consent decree entered into a se

rate Intergovernmental Agreement which provided t t

the communities surrounding O’Hare ime “feasible

and reasonable steps to discourage the further develop-

ee Sie ol ce «il

City agreed that it would employ a + poe ee

wed l in rneasuring the impact on noise levels of O’

opera sctlees al Wak tb Vebdilin “atlee snip” goupered

: Representation on the Advisory Committee was distributed as

DuPage Mayors and Conference (2)

DuPage County Board of Commissions (1)

Chicago Ausocation of Commerce and Industry (D

Air Association (1)

Illinois Planning )

Illinois Department of Commerce and Community Affairs (1)

Illinois Department of Transportation (1)

Chicago Department of Aviation (1)

Office of the Mayor, City of Chicago (1)

A-10

No. 85-1073

by the City would be based on a 65 Ldn Contour.® Chi-

cago represented that it would not seek a finding of no

significant environmental impact by the FAA.

a ae e ens br anaes of Otee

tin to review or

ie Nr pe ie se

sevdapanas Shade bas tack is liti-

ion the City ted a two-phase development plan.

I of the tw plan primarily involved the con-

struction of a fourth terminal and an associated Concourse

L. Phase II is a much more ambitious undertaking. Ac-

ing to the notice of intent published on November 26,

1982 in the Federal Register, the following projects are

contemplated:

Extension of Runways 27R, 32L

Construction of second taxiway bridge

Construction of new taxiways

Relocation of the inner/outer terminal area taxiway

New apron construction

Construction of snow removal facilities

Acquisition of the military site and demolition and

replacement of — USAF facilities

Construction of a new International Terminal and

Concourse

Expansion of existing terminal buildings

— of a new Terminal 1 and new concourses

Construction of a new general aviation facility

Construction of new cargo complex

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No. 85-1073

Expansion of the ing and refrigeration plant

Terminal area roadway rovements

Airport ground access ements

Senne ats bow Gee alkce helity

Parking facili systems

The official estimated cost of all the development proj-

i were held on the matter in December

i e t soon . Su

we. Fong or instance, submitted written comments on Jan-

uary 11, 1983, Rec. Vol. I, at 173. Typically, the written

ised questions about the impact on the en-

vironment of the proposed expansion plans.

II

Ray wind significant ecting > pea rl

jor actions signi y i ity o

human environment” must submit an reer hee Rec Im-

Statement (“EIS”). It is not contested that the City

pork. Pca tig tected tlyer sah ar -— llth

funding bringing the expansion plans for O’Hare with-

in NEPA’s ambit. An EIS must provide a “detailed state-

ment” on:

(1) the environmental impact of the proposed action,

(2) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(3) alternatives to the proposed action,

!

:

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No. 85-1073

(4) the relationship between local short-term uses of

man’s environment and the maintenance and enhance-

ments of long-term productivity, and

(5) any irreversible and irretrievable commitments

of resources which would be involved in the

— should it be implemented. 42 U.S:C. § 4332

(2XC).

FAA Order 5050.4 states that an Airport EIS should

consider the following:

Purpose and Need for the Action

Alternative

Affected Environment

Environmental Consequences

Noise

Land use

Social impacts

Induced socio-economic impacts

Air quality

Water quality

DOT Section 4(f) lands

Historic sites

ely yr

art an itect applications

Endangered species of flora and fauna

Wetlands

Floodplains

Prime and unique farmlands

Energy

Light emissions

Solid waste

Construction Impacts

Adverse Impacts which Cannot be Avoided

The City determined that “Noise, Land use, Water qual-

ity, Air ‘oie, and Construction impacts” should receive

the greatest attention in the O’Hare EIS, Rec. Vol. I,

at 141. The EIS in this case was prepared in stages and

reflects the contributions of many individuals and organiza-

tions including the petitioners. may | preliminary draft of the

iiitaeneeeeeiememeeilamemasiiiadiel

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No. 85-1073

EIS, prepared by the City, was completed by February

1983; a formal draft of the EIS, was submitted in June

1983. The final EIS processed by the FAA using data fur-

nished by the City was completed in Ma ay 1984. Because

the environmental issues raised by the O'Hare expansion

plans had always been the most caeeoaialal element of

the Airport Layout Plan, FAA completion of the final EIS

cleared the way for approval of the Plan, which came on

November 14, 1984.® In — 1984 in response to com-

ments from the Environmen Protection Aces Agency the FAA

developed a program of air quality mitigation measures.

On December 4, 1984 Suburban filed suit in the United

States District Court for the Northern District of Illinois

—_ the FAA and the City at. that the approval

the Airport Layout Pian violated the Butterfield con-

sent decree, NEPA, the Airway and Ai Improvement

Act, and the Clean Air Act, 42 U.S.C. §§ 7401 et seq.

Suburban moved for a preliminary injunction to enjoin all

further construction at O’Hare. The district court dis-

missed the complaint finding that it lacked subject mat-

ter jurisdiction over the complaint. Suburban O’Hare

Commission v. Dole, No. 84 C 10387, Memorandum Opin-

ion and Order (N.D. Ill. Feb. 28, 1985). Prior to the dis-

trict court’s dismissal, Suburban, as a matter of protec-

tive pleading, filed the present petition for review in this

* A cost-benefit analysis is not — of an oe but one was

a repared in this case al it was not included in the final EIS.

sedsieh Suith semidiiens ative i imenenelion of

ro ty’s governing 3

NEPA, an it dad Oe bedhead b teseeil alah teeeallt Ani

C.F.R. § 1507.23. “The statement is sufficient if it gives .

sionmaker and other readers enough detail concerning all of these

costs and benefits to permit reasoned evaluation and decision.”

South Louisiana Environmental Council v. Sand, 629 F.2d 1005,

1013, n.7 (6th Cir. 1980); Sierra Club v. Sigler, 695 F.2d 957,

976-77, n.15 (6th Cir. 1983). A formal cost-benefit analysis need

be included in the EIS itself only if the relies on such anal-

yun in reaching the decision to which the EIS relates. 40 C.F-R.

a

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No. 85-1073

court on January 14, 1984. It is that petition for review

that is before us. Technically, the petition for review asks

us only to review the legality of the FAA’s approval of

the Airport Layout Plan. As we have indicated, ever,

the Plan incorporates by reference all relevant environ-

mental requirements. In effect, therefore, we are also asked

to rule upon the adequacy of the final EIS.

Ill

A threshold issue we must address before reaching the

merits of Suburban’s claim is whether jurisdiction properly

vests in this court, as respondents contend, or in the dis-

trict court, as petitioners urge. We have been assisted

in our consideration of this matter by the thoughtful opin-

ion of the district court dismissing Suburban’s complaint.

We point out, however, that the proceeding below is juris-

dictionally distinct from the present petition for review

in this court and that the district court’s decision is not

under review by this court.

The FAA has stated that its review of the Master Plan

Study and Airport Layout Plan was conducted under parts

77, 139, 152, and 157 of FAA regulations codified at 14

C.F.R. The FAA’s review pursuant to 14 C.F.R., parts

77, 139, and 157, was conducted pursuant to authority

vested in the FAA under Chapter 20 of Title 49. The

FAA’s review pursuant to part 152 of 14 C.F.R. was con-

ducted pursuant to authority of Chapter 31 of Title 49.

49 U.S.C. § 1486(a) provides that:

(a) Any order, affirmative or negative, issued by the

Board or Administrator under this chapter, except

any order in respect of any foreign air carrier su

ject to the approval of the President as provided in

section 1461 of this title, shall be subject to review

by the court of appeals of the United States or the

nited States Court of Appeals for the District of

Columbia upon petition, filed within sixty days after

the entry of such order, by od person disclosing a

substantial interest in such order. After the expira-

No. 85-1073

tion of said sixty days a petition may be filed only

by leave of court upon a showing of reasonable grounds

for failure to file the petition theretofore.

49 U.S.C. § 1486(d) declares that the courts of ap ——

shall have exciusive jurisdiction to affirm or set aside

order of the FAA issued pursuant to this section. Thus,

if the FAA order approving the ALP was, in fact, made

pursuant to Section 1486 it is clear that exclusive juris-

diction to review that order rests with this court. Gaunce

v. deVincentis, 708 F.2d 1290 (7th Cir. 1983); City of

Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 1984); City of

Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984); State

of New York v. FAA, 712 F.2d 806 (2d Cir. 1983); City

of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979).

Suburban advances three arguments in support of its

cortention that the FAA’s order of November 14, 1984

is reviewable only in the district court. First, Suburban

contends that the FAA’s decision was actually made pur-

suant to Chapter 31 of Title 49. Second, Suburban asserts

that the district court had jurisdiction over its claim by

virtue of the Butterfield consent decree. Third, Suburban

argues that the FAA decision is not an “order” for pur-

of Section 1486 because the administrative record

is based on disputed issues of fact subject to the general

jurisdictional grant of 28 U.S.C. 3 1331.

Of the four “orders” entered by the FAA as part of

its November 14, 1984 decision, three were issued on the

purported authority of Chapter 20 of Title 49. One —

was issued on the authority of Chapter 31. When an

cy decision has two dis:inct bases, one of which caontdes

for exclusive jurisdiction in the courts of appeals, the en-

tire decision is reviewable exclusively in the appellate

court. In Gaunce, 708 F.2d 1290, for example, a pilot chal-

lenged the FAA’s order revoking her flight certificate.

The challenge was based on both the Federal Aviation

Act and the United States Constitution. The court none-

theless held that exclusive jurisdiction rested in the court

of appeals.

No. 85-1073

To permit Suburban to maintain this action in the United

States district court would contravene the clear intention

of Congress that agency decisions made under Chapter

20 be reviewed by courts of appeals. The separation of

Chapter 20 claims from Chapter 31 claims in this case

could only be effectuated through pifurcated en

But the purpose of having agency decisions reviewed

courts of appeals is to avoid duplicative factfinding. if

there is any ambiguity as to whe jurisdiction lies with

a district court or with a court of appeals we must resolve

that ambiguity in favor of review by a court of appeals.

If a decision of an administrative agency is based, in sub-

stantial part, on a statutory provision providing for exclu-

sive review by a court of appeals, then the entire pro-

ceeding must be reviewed by a court of appeals. We need

not reach the question of what constitutes “substantial

part” where, as here, three of the four orders in ques-

tion were issued under 49 U.S.C. § 1486. In the absence

of a clear indication that an alternative basis of jurisdic-

tion was intended, we must presume that Seetion 1486

(Chapter 20) applies.

Although a violation of a consent decree is primarily

a breach of contractual obligations, federal courts, both

trial and ° 4 re may enforce such decrees under the

doctrine o federal jurisdiction. The interpreta-

tion of a consent decree is a matter of law and subject

to plenary review on appeal. United States v. Board of

—” of City of Chicago, 717 F.2d 378, 382 (7th Cir.

We do not question the inherent authority of district

courts to enforce settlement agreements terminating li

tion pending before them, see McCall-Bey v. Franzen,

85-2415 (7th Cir. Nov. 13, 1985), but it is not clear that

® Suburban did not file a motion to enforce the consent decree.

Instead, it filed an entirely new complaint. Suburban argued that

it had been misled by the clerk of the district court into filing

a new claim. That allegation was rejected by the district court

No. 85-1073

the consent decree in this case creates unfulfilled substan-

tive obligations on the part of the City and the FAA. The

parties to the Butterfield litigation agreed to a particular

procedural format, that is, a specific method of dispute

resolution. The FAA and the City have complied with the

terms of the consent decree, and a motion to enforce the

consent decree in the district court, at this stage of the

proceedings, would serve no useful purpose.

To a certain extent the jurisdictional problem posed by

this case is one of characterization. The FAA need not

have characterized its decision as one made pursuant to

its authority under Section 1486. It might have issued its

order under the authority of the Airport and Airway Im-

provement Act. But since the FAA chose to rely on Sec-

tior .486, petitioners are effectively foreclosed from pur-

their claims in the district court. Congress has not

provided us with a mechanism for determining whether

a decision by the FAA to characterize its order as one

made under Section 1486 is genuine or not.

Suburban lastly contends that jurisdiction does not prop-

erly lie with this court because there are disputed issues

of fact regarding the scope and the content of the admin-

istrative record which must be resolved in the district

court. The asserted gross inadequacy of the administrative

record, Suburban contends, suggests that the November

14 decision is not an “order” for purposes of Section 1486.

We have previously stated that Section 1486 dictates a

broad construction of what constitutes an “order.” Sima

Products v. McLucas, 612 F.2d 309, 312-14 (7th Cir.), cert.

denied, 446 U.S. 903 (1980). See also State of New York

v. FAA, 712 F.2d at 808. The existence of a reviewable

administrative record is the determinative element in de-

fining an FAA decision as an “order” for purposes of Sec-

tion 1486. City of Alexandria, 728 F.2d at 646. “If the

FAA’s record were inadequate to permit review directly

in the court of appeals, we would be inclined to find that

the action, although final, is not an order within the mean-

ing of [Section 1486]. However, we are not presented with

that situation here.” Sima Products, 612 F.2d at 314 (cita-

tions omitted).

a ae eee

A-18

No. 85-1073

Suburban argues that if this court exercises jurisdiction

over the petition for review it must apply the — re-

view tage of the Administrative ies view Act

(the Hobbs Act), 28 U.S.C. § 2347(b). That Act provides

that where the agency is not required to hold a hearing

and has, in fact, not held a fo hearing, and when the

pleadings present genuine issues of material fact, the case

must be sent to the district court for a trial de novo. 28

U.S.C... § 2347(bX3).

This is a novel argument. No reported case has applied

the Hobbs Act to FAA final orders. There is no indication

that Congress intended the Act to apply to any agency

other than the five enumerated in the statute. There is

ample evidence indicating that Co intended for deci-

oar of the FAA to be reviewed solely under Section

IV

Before turning to the merits of this case we must also

announce our standard of review of FAA decisions. Sec-

tion 1486 provides that “findings of fact” by the FAA

“if supported by substantial evidence, shall be conclusive.”

In this case no formal hearings were conducted by the

agency. Instead, the FAA received written submissions

and conducted numerous nonadversary, informal proceed-

ings. Two circuits have held that appellate review of in-

formal agency action under Section 1486 is governed by

an “arbitrary and capricious” standard of review. Rom-

bough v. FAA, 594 F.2d 893, 896 (2d Cir. 1979); Tiger In-

ternational v. CAB, 554 F.2d 926, 935-36 (9th Cir.), cert.

son ule trch Ga es th In Starr v. FAA, oo

, 3l ir. 1978), this court appeared to apply an

abuse of discretion standard to review of inforrnat FAA

action under Section 1486. In Aircraft Owners & Pilots

Assoc. v. FAA, 600 F.2d 965, 969-72 & n.28 (D.C. Cir.

1979), however, the court held that informa! FAA action

made on the authority of Section 1486 should not be over-

turned uniess it is unsupported by substantial evidence.

Similarly, in State of South Dakota v. CAB, 740 F.2d 619,

ieee treeericiem cena

ee

A-19

No. 85-1073

621 (8th Cir. 1984), the court held that a Civil Aeronautics

Board decision under Secticn 1486 “based upon factual

consideration drawn from an informal, nonadversarial rec-

ord consisting of information and comments submitted by

opposing sides and interested parties” should be reviewed

under a substantial evidence standard. We agree with the

Eighth Circuit and District of Columbia Circuit that the

substantial evidence test is the appropriate standard of

review of FAA action under Section 1486. The fact that

the agency findings in this case were the product of an

informal information- ring process does not affect our

standard of review. Congress has indicated that the sub-

stantial evidence test is the proper standard for all FAA

decisions under Section 1486. also White Industries

v. FAA, 692 F.2d 532 (8th Cir. 1982); Pillai v. CAB, 485

F.2d 1018, 1023 (D.C. Cir. 1973) (applying substantial evi-

dence standard); Law Motor Frewht v. CAB, 364 F.2d

139, 144 (1st Cir. 1966).

Rombough, Tiger International, and Starr were proceed-

ings requesting exemptions from a valid agency rule. Those

cases relied heavily on Camp v. Pitts, 411 U.S. 138 (1973),

which distinguished between the standard of review under

the Administrative Procedure Act (“APA”) of agency ac-

tion taken after a formal hearing and agency action taken

without a formal hearing. Under the APA the substantial

evidence test is only appropriate when revie findings

made on a hearing record. 5 U.S.C. § 706(2XE); Camp,

411 U.S. at 141. The appropriate standard of review of

informal agency action under the APA is whether the ac-

tion was “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706

(2XA); Camp, 411 U.S. at 142. The obvious difficulty with

the rationale of those cases reviewing informal FAA deci-

sions under the “arbitrary and nae”! or ‘“‘abuse of

discretion” standards is that the APA is clear! Teor not 9

cable to FAA action under Section 1486. Bo

ternational, 554 F.2d at 935-36, and Rombough, 594 te F 2

at 856, acknowledge that their reliance on Camp and the

APA is by analogy only. But the argument by analogy

is neither persuasive nor necessary where, as here, Con-

|

:

A-20

No. 85-1073

gress has created a special review provision specifically

designed to address precisely the type of case before the

court. The specific review provisions of Section 1486 take

precedence over the general provisions of the APA. Rom-

bough, 594 F.2d at 895-96.

In addition, we note that Tiger International, Rombough,

and Starr all involved requests for exemptions from valid

agency rules. All three courts were concerned with the

administrative and practical difficulties of applying a sub-

stantial evidence test to a petition for exemption. In Starr,

for example, the court noted that:

In proceedings requesting exemptions from a valid

agency rule. . . the bulk of evidence is petitioner’s,

since he must show that circumstances justify an ex-

emption in his case. And if an agency’s decision to

grant or mo | an exemption were to be judged under

a substantial evidence rule, that agency would be

forced to defend its standard rule in every exemp-

tion proceeding.

589 F.2d at 311. In the instant case these concerns are

nonexistent. The FAA in this case is not articulating a

standard rule and the bulk of the evidence is not petition-

ers’. We note that the facts in Aircraft Owners & Pilots

Association and State of South Dakota v. CAB, like those

in this case, also involved FAA approval of a specific con-

struction project.

In Association of Bank Travel Bureaus v. Board of Gov-

ernors, 568 F.2d 549 (7th Cir. 1978), this court was called

upon to determine the applicable standard of review of

decisions of the Board of Governors of the Federal Re-

serve System under 12 U.S.C. § 1848 which, like 49 U.S.C.

§ 1486, provides for exclusive review in the courts of

peals and states that administrative findings shall be con-

clusive if supported pe Hag eg v0 evidence.” The court

held, however, that where the board engaged in rulemak-

ing “which did not involve findings required by statute

to be made or the record after opportunity for an agency

hearing,” 568 F.2d at 552, the “arbitrary and capric:~us”

standard is the proper standard of review.

A-21

No. 85-1073

Association of Bank Travel Bureaus does not control

this case. Aside from the obvious distinction that this ear-

lier case involved the interpretation of a different statute,

the decisionmaking rocesses of the FAA in this case are

sufficiently unlike decisions of the Board of Gover-

nors in Association of Bank Travel Bureaus to warrant

our invocation of a substantial evidence rule. The “‘infor-

mality” of the FAA decisionmaking process is less impor-

tant to our decision than the fact that petitioner’s views

were represented at virtually every stage of the decision-

process. The arbitrary and capricious standard of

the APA is designed to protect agency decisions made

without the benefit of a complete record compiled in an

adversarial or yee weer gs proceeding. The lengthy

and elaborate decisionmaking procedures preceding the

FAA’s November 14 decision in this case are not the sort

of informal processes the drafters of the APA had in mind

be they adopted the arbitrary and capricious standard

of review.

We realize that our decision appears to conflict with

Tiger International or Rombough or Starr, “but we see

no inconsistency between them and our treatment of the

factually distinguishable case presently before us.” Tiger

International, 554 F.2d at 936, n.19. In the absence of

any other direction from Congress and in the absence of

the special concerns evident in the facts of those cases,

we must apply the plain language of Section 1486.

V

Having concluded that jurisdiction properly lies with this

court and having clarified the standard of review we turn

finally to the merits of the petitioners’ claims. The FAA

Record of Decision reports the EIS submitted by the

City and approved by the agency considered five alterna-

tives to the proposed development: (a) alternative modes

of travel; (b) utilization of other airports; (c) development

of a new airport; (d) alternative levels of aviation demand;

or (e) do nothing. The City rejected the possibility that

A-22

No. 85-1073

alternative modes of travel such as rail, bus, or automobile

of aviation demand at O’Hare. i , however,

where those limits should be set on w the pro-

Utilization of Other Airports. The airport that

cacue eadanee edema ide ante ceites oo

the Chicago Metropolitan Area is Midway Airport

A-23

No. 85-1073

ri eet rtation under a series of grants

to be funded by the F'AA’s Airport Improvement Pro-

gram. The initial grant was issued in ber 1984.

Petitioners allege that these terse statements are cum-

pletely inadequate and unsupported by substantial evi-

dence. The Record of Decision, however, represents mere-

] OT daca ae aes Ee into

proposed development Record of Decision

inco by reference ears of planning that pre-

it. Our task as an appe court is to determine

whether the FAA’s decision was based on substantial evi-

dence, and the evidence we must evaluate consists of the

entire administrative record. Of course, the size of the

record is not the determinative factor, but rather its com-

prehensiveness and the inherent reasonableness of the

ultimate determination.

Petitioners point out that perhaps half of the airline

passengers flying into O’Hare arrive merely to transfer

onto another eae

They ese transfer passengers could some-

soll tc Eel iuer aenests tatlne ton mond tec

new construction at O’Hare.

Petitioners’ argument presupposes that the City has

and air travelers find O'Hare to be the most convenient

or place to travel to and away from and to

make ers to connecting flights. Moving air traffic

to Milwaukee or Rockford or anywhere else is simply not

within the er of the City to accomplish. The decision

to make O'Hare, or any r airport, a “hub” airport

belongs to the airlines and not to the Government. The

City could consciously choose to do nothing about condi-

tions at O’Hare and uit the congestion and delays to

reach such an intol e level that airlines would be forced

A-24

No. 85-1073

to send flights to other cities. But the City cannot direct

the resulting overflow to any icular location. Nor is

there any tee that the shift away from O’Hare would

occur qui or without massive inconvenience to air trav-

elers. In ition, no one has calculated the impact of a

significant increase in flight operations in the airports

age tg. moder 5nd Fogel: Snag

to the environment of the communities surrounding those

Siceovar, the CA as Giltaliy salad ra eos

Moreover, the City has already for a limited

Shifting yer | to build any new runways until 1995.

flight operations might have merit ideally, but

: eae y the FAA that such a shift is not possible

or practical is amply supported by the record.

A shift of t operations to Chicago-owned Midway

Airport raises fewer of the problems that shifts to other

airports in other cities do. Several cities already have two

major airports. New York, for instance, has both LaGuardia

and Kennedy. But Midway has even Jess available space

than O’Hare and is situated in an area as densely popu-

lated as the area around O’Hare. Upgrading ay to

the point that it would eliminate the need to expand O’Hare

would entail enormous costs. Moreover, the City has al-

ready proposed to add significantly to Midway’s capacity.

Another possible solution to the problem of congestion

at O’Hare is to construct an rg new airport. Just

as O’Hare replaced Midway —— primary airport in the

area, a new airport could rep lace O'Hare as the princips

air travel facility. There are sage ti Pe difficulties with

idea. This new airport will 1D seco Cg sosuy vg Sry heer

as large as O’Hare. hls senenss Oak 4 os St eee then

seven thousand acres of undeveloped land will have to be

acquired. This land will have to be reasonably close to

the central city in order to make — Kangen pa

But Chicago is literally surrounded by

ulous suburbs. Locating thousands fe Lom sof

land would be no easy task. In addition, the vaullding of

a new airport would be the most expensive of all possible

solutions to the O’Hare problem. A new airport would

A-25

No. 85-1073

require years to construct and would have a difficult time

passing environmental requirements. Moreover, the City

and the FAA are in the midst of a formal study

of the possibility of building a new airport in the Chicago

area. A new airport may or may not be the best long-term

solution to the problems of airport travel in and out of

Chicago, but the City and the FAA needed to formulate

a plan to deal with the short-term problems at O’Hare.

The proposed dev represents a reasonable response

+ those problems one unable to satisfy everyone

ected 10

Apart from objections to the FAA’s consideration of al-

ternatives, Suburban challenges the treatment of the sub-

stantive environmental requirements of both NEPA and

the Clean Air Act. Those challenges can be characterized

as criticisms of the methodology employed by the FAA

in measuring projected increases in noise levels and de-

creases in air quality. Suburban, for instance, quarrels

with the FAA’s decision to calculate the noise impact of

being

service. But this particular decision of the FAA appears

to us to be reasonable. Moreover, “{iJt is clearly within

the expertise and discretion of the [FAA] to determine

roper testing methods.” Sierra Club v. United States

t of Transportation, 753 F.2d 120, 128 (D.C. Cir. 1985).

’s objections to the methodology and conclusions

of the FAA’s procedures do not begin to establish that

those procedures were not based on substantial evidence.

1° Two previous studies of proposals for a third airport have been

undertaken. One study examined the possibility of constructing a

new airport on landfill in Lake Michigan. Another study considered

the p of a new airport in northeast Indiana. Both

\dies were made av to the FAA and the City. A legis-

lative task force was recently appointed to examine the environ-

mental consequences of further expansion at O’Hare and the feasi-

bility. of constructing a new airport.

A-26

No. 85-1073

Suburban also alleges that FAA approval of the Airport

Layout Plan violates section 176(c) of the Clean Air Act,

42 U.S.C. § 7506(c). Under the Clean Air Act the EPA

is required to establish national ambient air quality stand-

ards. 42 U.S.C. § 7409. Each state must develop its own

implementation plan ar iy to achieve the national air

quality standards. 42 U.S.C. § 7810. Private citizens may

bring suit only for violations of the state plans and not

the national standards. 42 U.S.C. § 7604. See Council of

Committee nizations v. Metropolitan Tra ion

Authority, F.2d 663 (2d Cir. 1982). The FAA found

that the Plan will not violate the Illinois implementation

plan. Rec. Vol. VI, at 1679-80. Moreover, the FAA ap-

proved the ALP subject to the City’s agreement to take

steps to mitigate the impact on air quality. The City’s

compliance with this condition will be monitored by the

FAA, the EPA, and the Illinois EPA. Rec. Vol. IV, at

1731-33. Under these circumstances we do not find that

a violation of the Clean Air Act has occurred.

We do not. suggest that our brief discussion of the dif-

ficult choices confronting the and the FAA represents

an exhaustive inquiry inte the methodology, and cal-

culations of the planners of the O’Hare expansion. But

neither is such an inquiry required.

NEPA does set forth significant substantive goals for

the Nation, but its mandate to the agencies is essen-

tially procedural. . . . It is to insure a fully informed

and well-considered decision, not necessarily a deci-

sion the ju of the Court of Appeals . . . would

have reached had they been members of the decision-

making unit of the agency. Administrative decisions

should be set aside in this context, as in every other,

only for substantial procedural or substantive reasons

as mandated by statute, .. . not simply because the

court is unhappy with the result reached.

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, 435 U.S. 519, 558 (1978).

eee

A-27

No. 85-1073

It is axiomatic that reviewing courts should not substi-

tute their judgments for those of an agency as to the en-

vironmental consequences of its actions. Kleppe v. Sierra

Club, 427 U.S. 410, n.21 (1976). Our role is to ensure that

the FAA has taken a “hard look” at the environmental

consequences of its action. Jd. “A reviewing court deter-

mining whether the factual findings of the agency are based

on substantial evidence weighs evidence in the record

rting the decision against that which is contradictory.

As long as sufficient evidence exists that a reasonable

mind might accept as adequate to support a conclusion,

the agency’s findings must be upheld.” Aircraft Owners

& Pilots Ass’n, 600 F.2d at 970 (citations omitted). When

measured against this deferential standard, the FAA’s

decision to approve the Airport Layout Plan was clearly

reasonable and clearly supported by substantial evidence.

Suburban alleges that the City and the FAA have kept

“two sets of books” regarding the Master Plan decision-

ing process. The key element of the Master Plan is

the twenty-year forecast of “metropolitan aircraft opera-

tions demand.” Prior to the settlement of the Butterfield

litigation in 1982 the City forecast an operations demand

for the entire Chicago area of 943,000 flights for 1980;

1,064,500 flights for 1985; 1,234,500 flights for 1990; and

1,412,000 flights for 1995. Those estimates were based on

853,000 actual flights in 1974. O’Hare’s capacity was esti-

mated at 950,900 flights. Petitsoners refer to this data as

“the first set of books.”

In 1983 the twenty-year metropolitan forecast was re-

vised and this revision was employed in the final EIS and

the FAA’s Record of Decision. The 1983 revised forecast

estimated O’Hare’s capacity at 840,960 operations. The City

estimates that the completion of Phase II will enable O’Hare

to handle 920,000 annual operations in 1995. Without the

project the City estimates 840,900 operations would occur

in 1995. Petitioners refer to this revised forecast as the

“the second set of books.” In essence, Suburban contends

that this alleged second set of books was invented by the

City in order to conceal the deficiencies in the Master

|

A-28

No. 85-1073

Plan made evident by the alleged “first set of books.”

Specifically, petitioners contend that ‘“‘data, methodologies

and calculations” for several key elements of the “‘second

set of books” are “missing.”

We confess to being somewhat mystified by Suburban’s

argument. There is nothing missing from the administra-

tive record. All the “data, methodologies and calculations”

of the “first set of books” can be found in the MPS. In

fact, petitioners’ brief cites to the appropriate sections of

that study in its brief identifying the key elements of the

“first set of books.”

Suburban attempts to drive an artificial wedge between

the so-called first and second set of books—a w pre-

sumably created by the improper desire of the City to

mislead petiticners. But it — far more likely that

the 1983 revised estimate of O’Hare’s capacity was the’

result of a tardy recognition on the part of the City that

7 of unlimited expansion at O’Hare was not politi-

y feasible nor environmentally wise. The B ld

litigation and the activities of petitioners were no doubt

instrumental in this realization. The FAA’s Record of De-

cision notes that: “The City of Chicago decided to pursue

a constrained development for O’Hare that would limit

the future growth to that which could be handled by the

existing runways and available land and by assuming im-

proved air traffic control capabilities to accommodate in-

creased operations.” The FAA’s approval of the Airport

Layout Plan is clearly predicated on the City’s decision

not to add new runways to O’Hare. New runway construc-

tion would entail a new environmental review. It is obvi-

ous that Suburban simply does not believe that the City

intends to keep its word. But the City has represented

to this court and to the FAA that it has no plans to build

any new runways at O’Hare. Neither the FAA nor this

court is in a position to gauge the sincerity of the City’s

promises. Chicago has gone on record and if it breaks its

promises, it will certainly find itself again in court.

Suburban also alleges that the FAA’s November 14,

1984 Record of Decision violates the Airport and Airway

A-29

No. 85-1073

Improvement Act. We agree with the district court that

contrary to respondents’ contentions the Act applies to

the O’Hare expansion plans. But Suburban has not estab-

lished a violation of Act.

The Airport and Airway Improvement Act requires an

airport construction project receiving federal funds to be

“reasonably consistent” with existing development plans

for the area surrounding the airport. 49 U.S.C. § 2208

(bX1XA). The final EIS evidences great concern for the

impact of the er development on the surrounding

communities. entire decisionmaking process in this

case belies the contention that the FAA has ignored the

development concerns of the area around O’Hare. We

point out that the Northeastern Illinois Planning Commis-

sion, a state agency overseeing planning for the area of

the State in which O’Hare is located, concluded that the

proposed project was “consistent with plans and policies

of the Commission.” M.P.S., Vol. XVI, at B-17.

Suburban also contends that the FAA was required by

the Airport and Airway Improvement Act to obtain a gov-

ernor’s certificate before roving the Airport Layout

Plan. 49 U.S.C. § 220&bX7Xa) provides that no applica-

tion for federal funds for “a project involving airport loca-

tion, a major runway extension, or runway location” shall

be approved unless the governor of the state in which

the project is located certifies that there is a “reasonable

assurance” that the project will comply with applicable

air and water quality standards.

Suburban contends that the Airport Layout Plan con-

templates two “major runway extensions.” Runway 27R

and runway 32L are, in fact, to be extended under Phase

II of the a 08s The FAA, however, contends that these

are not “major” extensions for purposes of the Airport

and Airway improvement Act. FAA Order 5050.4 deboes

a major extension as one that will permit the accommoda-

tion of aircraft three decibels louder than those currently

using the runway. The FAA has determined that the pro-

oes runway extensions will account for only a one deci-

| inerease. “An agency’s interpretation of the statute

A-30

No. 85-1073

it must administer is crdinarily accorded deference.”

Illinois Commerce Commission v. ICC, 749 F.2d 875, 880

(D.C. Cir. 1984). We cannot say that the FAA’s determi-

nation that the runway extensions contemplated by the

ALP are not “major” is unreasonable."

Finally, we feel compelled to address the equities of this

case. Petitioners conceive of themselves as the innocent,

passive victims of a relentlessly expansive O’Hare. They

point out that many of the communities surrounding O’Hare

were established long before the airport had been built.

In all fairness, however, these same communities receive

enormous economic benefits from their proximity to O’Hare.

Moreover, many of these communities have resisted ai-

tempts by the City to harmonize their own land-use reg-

ulations with the aviation activity at O’Hare. In a perfect

world, petitioners would be able to reap the benefits of

their location and still be able to sleep without noise

disturbances at night. Unfortunately, the FAA and the

City are forced to operate in a world where even their

most carefully considered decisions are likely to adversely

affect some people. We are confident that the proposed

development represents an honest and careful attempt to

minimize those consequences and to accommodate the con-

flicting interests in the best possible manner.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

11 In view of our disposition of the petition, we need not con-

sider whether an injunction would have been an appropriate rem-

edy in this case petitioners been entitled to some relief. Nor

need we consider respondents’ motion to strike petitioners’ affi-

davits. We have considered Suburban’s remaining arguments and

find them to be without merit.

USCA 60064—Midwest Law Printing Co., Inc., Chicago—3-13-86—450

A-31

603 F.Supp. 1013

SUBURBAN COMMISSION; The Village of Addison; The

Village of Bensenville; The City of Des Plaines; The Village

of Elk Grove Village; The City of Elmhurst; The Village of

Franklin Park; The Village of Harwood Heights; The Vil-

lage of Itasca; The Village of Niles; The Village of Nor-

ridge; The City of Park Ridge; The Village of Schiller Park;

The City of Wood Dale; and Lawrence C. Bieneman,

Plaintiffs,

v.

Elizabeth Hanford DOLE, Secretary of the Department of

Transportation; Russe!l A. Olson, Regional Representative

of the Department of Transportation, Region V; Donald

Engen, Administrator of the Federal Aviation Adminis-

tration; Paul Bohr, Director, Great Lakes Region, Federal

Aviation Administration; John Guidotti, Supervisor, Illinois

Section, Chicago Airports District Office, Federal Aviation

Administration; The City of Chicago, a municipal corpo-

ration; and Thomas Kapsalis; Commissioner of the Depart-

ment of Aviation of the City of Chicago, Defendants.

No. 84 C 10387.

United States District Court,

N.D. Illinois, E.D.

Feb. 28, 1985.

MEMORANDUM OPINION

AND ORDER

ROVNER, District Judge.

Plaintiffs consist of numerous suburban municipal entities

surrounding O’Hare International Airport (“‘O’Hare’’), the

Suburban O’Hare Commission, an organization of Illinois

Municipal corporations created in 1982 for the purpose of

}

, a

A-32

protecting its members and their citizenry from environmental

damage caused by O’Hare, and Lawrence C. Bienemann, a

private citizen of one of the plaintiff villages.1 The defendants

are various Officials and employees connected with the Federal

Aviation Administration (““FAA”), the Department of Trans-

portation, and the City of Chicago and Chicago itself as a

municipal corporation (“City defendants”). In its complaint,

filed in this Court on December 4, 1984, Suburban O’Hare

challenges an adjudicatory decision of the FAA rendered on

November 14, 1984 by which the FAA approved Chicago’s 20-

year “Master Plan” for the construction and operation of

commercial air carrier facilities for the metropolitan Chicago

area to meet long-term aircraft operations demand at air carrier

airports. The FAA not only approved the expansion of aircraft

operations at O’Hare, but also rejected other [1015] alterna-

tives to handle the 20-year demand which would not increase

operations at O’Hare.2

Suburban O’Hare’s complaint consists of 78 pages, 188

enumerated paragraphs, and 6 exhibits, some of which are

lengthy in themselves. Although a detailed explanation of the

complaint is not necessary for purposes of this Opinion, some

discussion of the history and background of this case, as alleged

by plaintiffs in their complaint, is helpful to an understanding of

its present procedural posture.

1In this Opinion, the plaintiffs will be referred to collec-

tively as “Suburban O’Hare.”

2 The rejected alternatives set forth in the November 14,

1984 FAA decision are: a) consideration of “alternative modes

of travel” (e.g., rail, bus, and automobile); b) “utilization of

other airports” (e.g., General Mitchell Field in Milwaukee,

Wisconsin); c) the “development of a new airport” in the

Chicago area; d) consideration of “alternative levels of aviation

demand;” and e) “Do Nothing.” (Record of Decision, Com-

plaint, Exhibit 4 at pp. 4-5.)

A-33

Background

The FAA’s November 14, 1984 decision was the culmina-

tion of a dispute that began many years before and resulted, in

part, from the procedural decision-making framework created

by a Consent Decree entered by Judge Stanley J. Roszkowski of

the United States District Court for the Northern District of

Illinois on October 14, 1982 in the case of State of Illinois ex

rel. Scott v. Butterfield, No. 74 C 2410 (“Illinois v. Butterfield

litigation”). According to the complaint, for many years the

mayors and city councils of the plaintiff communities had asked

for reduction in the noise and air pollution emanating from

O’Hare. Suburban O’Hare alleges that instead of addressing

these problems, the City defendants and the FAA had been

following a piecemeal approach to the physical development of

O’Hare which led to the ever-increasing expansion of O’Hare’s

capacity to accommodate flight operations far beyond its

Original design. Because the FAA awarded financial grants to

7 Chicago for the construction of individual projects without

examining the long-term expansion program as a whole, fre-

quently after the projects had already been built, the issue of

how best to meet long term aviation growth was ignored.

To stop this piecemeal expansion of O’Hare, the State of

Illinois and several of the plaintiffs in this case brought the

Illinois v. Butterfield \itigation, seeking disclosure of the City of

Chicago’s and the FAA’s long-term aviation goals and a

comprehensive exploration of alternatives to O’Hare expansion.

The plaintiffs sought declaratory and injunctive relief under the

National Environmental Policy Act, under the Administrative

Procedure Act, and under various other federal statutes, to stop

the expansion of O’Hare and the allegedly uncontrolled in-

| crease in aircraft operations, and noise and air pollution

resulting therefrom. In addition to examining the alternatives

to meet the long-term aviation operations demand for the

Chicago metropolitan area, the plaintiffs wanted the FAA to

select an alternative to meet the demand which did not involve

the ever-increasing expansion of O’Hare.

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A-34

The Consent Decree

The Consent Decree entered in the J/linois v. Butterfield

litigation created a procedura! framework for such com-

prehensive decision-making. According to Suburban O’Hare,

in 1982 Chicago had proposed a massive construction program

at O’Hare pursuant to an FAA sponsored “Master Plan.” That

Master Plan program involved the construction of hundreds of

individual projects, and Chicago was ready to proceed with a

number of these projects, designated as Phase I projects.

Illinois and the plaintiff municipal entities in the IJilinois v.

Butterfield litigation were prepared to try to stop construction

on Phase I projects by seeking injunctive relief. The Consent

Decree thus resulted from an attempt to resolve competing

interests: Phase I construction could proceed in return for the

promise of the FAA and Chicago that all other construction

proposed by the Master Plan, now called “‘Phase II’’ construc-

tion, would not commence until the FAA made a.substantive

decision to approve or disapprove the entire Master Plan

proposal for [1016] meeting the 20-year metropolitan aircraft

operations demand.

The Consent Decree itself provides in relevar art: that

“{a]ll future development at O’Hare will comply with all then

applicable requirements of Federal and State of Illinois laws

requiring environmental analysis and processing” (Consent

Decree, | 1a); that construction of certain projects would not

proceed until an Environmental Impact Statement was com-

pleted (Consent Decree, § Id); and that “the entire Master

Plan development for O’Hare .. . will be presented to the FAA

for Airport Layout Plan approval and the related environmen-

tal review, as a single, comprehensive submission” (Consent

Decree, §] If).

The Airport Layout Plan (“*ALP”’) is the final product of

the Master Plan process and is based on the various facilities

developed in the Master Plan to meet the 20 year long-term

A-35

aircraft operations demand of the Chicago metropolitan area.

A Final Environmental Impact Statement (““FEIS”) based on

the requirements of the National Environmental Policy Act, 42

U.S.C. § 4321, et seg. (“NEPA”), accompanied the ALP,

which was submitted by Chicago to the FAA in April 9, 1984.

On May 31, 1984, the FAA approved the FEIS. The FAA

described the issue in its Record of Decision reflecting the

approval of the ALP as follows:

The issue is whether to approve the Airport Layout Plan

submitted by the City of Chicago. Approval of it would

allow the City to proceed with implementing the proposed

development at the airport and to request Federal funds

for eligible items of development. Not approving it would

prevent the City from proceeding with the development in

a timely manner.

(Complaint, Exhibit 4 at p. 2.) On November 14, 1984, the

FAA approved the ALP as the final product of Chicago’s

Master Plan. In the Record of Decision, the FAA specifically

disavowed approval of the ALP for federal funding purposes:

Approval of the Airport Layout Plan does not represent

approval as far as necessity for the development is con-

cerned nor is it a commitment of Federal funds for any

future development. It signifies a concurrence for planning

purposes based on review of conformance with cwrrent

standards for safety, utility, and efficiency.

(Complaint, Exhibit 4 at p. 2.)

The Present Suit

On December 4, 1984, Suburban O’Hare filed its com-

plaint in this Court, together with a motion for a temporary

restraining order and for a preliminary injunction, supported by

A-36

extensive affidavits.2 The Complaint, although lengthy, is in two

counts. In Count I, Suburban O’Hare asserts that the FAA and

the City defendants, in approving the ALP in the November 14,

1984 decision, violated the “letter and the spirit” of the Consent

Decree; NEPA; the Airport and Airway Improvement Act of

1982, 42 U.S.C. § 2201, et seg. (““AAIA”’); Section 176(c) of

the Clean Air Act; and plaintiffs’ “constitutional right to full

disclosure of all relevant data, calculations and methodology.”

(Complaint, 4 172.) Suburban O’Hare alleges that it has a

claim for relief in Count I both to enforce the Consent Decree

and under the Administrative Procedure Act, 5 U.S.C. §§ 702,

706. (Complaint, ¥7 173, 175.) Suburban O’Hare prays that

this Court declare that the November !4, 1984 FAA decision

approving the Master Plan is “null, void and of no force and

effect ...” and that this Court enjoin the defendants “from

taking any steps in reliance” on that decision.4

[1] Both the City defendants and the FAA have moved to

dismiss Suburban [1017] O’Hare’s complaint for lack of sub-

ject matter jurisdiction and for failure to state a claim upon

which relief can be granted pursuant to Rules 12(b)(1) and

3 At a hearing on December 4, 1984 before this Court,

Suburban O’Hare conceded that its motion for a temporary

restraining order was prematurely brought because construction

of Phase II projects was not set to proceed immediately as

Suburban O’Hare thought. Thus, this Court denied the motion

for a temporary restraining order as moot. A decision on

Suburban O’Hare’s motion for 2 preliminary injunction has

been held in abeyance pending resolution of the defendants’

motion to dismiss for lack of subject matter jurisdiction and for

failure to state a claim upon which relief may be granted.

4 Count II of the complaint is brought on behalf of plaintiff

Lawrence Bieneman, incorporates all of the allegations of

Count I, alleges injury to Bieneman in his person and property,

and requests a hearing in accordance with Section 554 of the

APA, 5 U.S.C. § 554.

eds i

A-37

12(b)(6) of the Federai Rules of Civil Procedure.5 Because

this Court holds that it lacks subject matter jurisdiction over this

action, it does not reach the issues posed by the defendants’

motions to dismiss for failure to state a claim upon which relief

may be granted.

Finally, on January 14, 1984, Suburban O’Hare filed a

Petition for Review in the United States Court of Appeals for

the Seventh Circuit, in accordance with 49 U.S.C. § 1486(a),

which is presently pending. Therefore, the dismissal by this

Court of Suburban O’Hare’s complaint for lack of subject

matter jurisdiction does not affect Suburban O’Hare’s substan-

tive right to judicial review of the FAA’s November 14, 1984

decision: such review must be sought in the first instance in the

Court of Appeals. This Court’s holding thus aliows the Seventh

Circuit to examine the jurisdictional issue at the inception of

this case, thereby avoiding the potential waste of time, effort,

and expense to both the parties and the judiciary of litigating

5 In addition, Suburban O’Hare has moved to compel the

FAA to file the administrative record of its November 14, 1984

decision in this Court. After full briefing on the issue, and after

a pretrial conference on January 30, 1985 this Court ordered

that the FAA file the record in this Court on February 14, 1985

because a district court unquestionably has subject matter

jurisdiction to do that which is necessary until it decides the

issue of its subject matter jurisdiction. United States v. United

Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed.

884 (1947). Moreover, this Court was mindful of the fact that

the FAA in any event was preparing the record for filing in the

Seventh Circuit Court of Appeals because Suburban O’Hare

had filed a protective Petition for Review in that Court on

January 14, 1985, and 49 U.S.C. § 1486(d) requires the FAA to

file the record in the Court of Appeals within 40 days thereafter.

That date was subsequently extended to February 22, 1985 on

the FAA’s motion to extend the time for filing the record due to

exigent circumstances.

A-38

the case to final judgment in the district court only to have that

judgment reversed ultimately for lack of subject matter jurisdic-

tion.

DISCUSSION

I. Exclusive Jurisdiction Vests In The Court of Appeals to

Review FAA “Orders” Under Section 1486.

In its complaint, Suburban O’Hare seeks to set aside the

November 14, 1984 decision of the FAA that approved the

Master Plan and the ALP for O’Hare submitted by the City

defendants. In addition to approving the ALP, that decision

also made several other determinations under various FAA

regulations promulgated under various sections of the Federal

Aviation Act in Title 49 of the United States Code. The

decision itself reflects that the FAA conducted its review

pursuant to Parts 77, 152, and 157 of the FAA regulations,

found in 14 C.F.R., respectively relating to: (1) obstruction

evaluations for flight operations; (2) the federal airport aid

program; and (3) notice requirements for airport construction

or alteration. (Record of Decision, Complaint, Exhibit 4 at

p. 19.) The FAA also granted exemptions pursuant to Part 139

of 14 C.F.R.

In addition to authority under the Consent Decree, the

FAA’s review pursuant to Parts 77, 157, and 139 of 14 C.F.R.

clearly was conducted pursuant to authority vested in the FAA

under Chapter 20 of Title 49; the FAA’s review pursuant to

Part 152 of 14 C.F.R. was conducted pursuant to authority

under Chapter 31 of Title 49. The primary issue in this case is

whether jurisdiction to review the FAA’s November 14, 1984

decision vests in the ¢ strict court or in the Court of Appeals.®

6 All parties agree that the FAA’s November 14, 1984

Record of Decision was a final agency action ripe for judicial

review.

A-39

Contrary to the suggestion of the FAA, this issue is not

simple. Courts have encountered substantial difficulty in

determining when a challenged administrative action falls

within the scope of a statute directing exclusive review in the

Court of [1018] Appeals. No less an authority than Professor

Kenneth Culp Davis has stated that the law governing the

jurisdiction for review of challenged agency action “is both

inordinately complex and extremely confused.” K. Davis, Ad-

ministrative Law Treatise § 23.03-1, at 372 (Supp.1982). This

complexity and confusion has spawned a number of law review

articles. See, e.g., Comment, The Forum for Judicial Review of

Administrative Action: Interpreting Special Review Statutes, 63

B.U.L.Rev. 765 (1983); Currie and Goodman, Judicial Review

of Federal Administrative Action: Quest for the Optimum Fo-

rum, 75 Colum. L.Rev. | (1975); Note, Jurisdiction to Review

Federal Administrative Action: District Court or Court of

Appeals, 88 Harv. L.Rev. 980 (1975).

{2} Despite the abundance of case law and scholarly

commentary on the issue generally, the law is well settled that

exclusive jurisdiction vests in the Court of Appeals to review all

final orders of the FAA made under Chapter 20 of Title 49.

Title 49 U.S.C. § 1486(a) provides:

(a) Any order, affirmative or negative, issued by the Board

or Administrator under this chapter, except any order in

respect of any foreign air carrier subject to the approval of

the President as provided in section 1461 of this title, shall

be subject to review by the court of appeals of the United

States or the United States Court of Appeals for the

District of Columbia upon petition, filed within sixty days

after the entry of such order, by any person disclosing a

substantial interest in such order. After the expiration of

said sixty days a petition may be filed only by leave of

court upon a showing of reasonable grounds for failure to

file the petition theretofore.

(Emphasis supplied.) Section 1486(d) states that the court

“shall have exclusive jurisdiction to affirm, modify or set aside

the order... .”

A-40

In Gaunce v. de Vinceniis, 708 F.2d 1290 (7th Cir.1983),

cert. denied, U.S. 104 S.Ct. 417, 78 L.Ed.2d 354

(1983), the Seventh Circuit dismissed sua sponte an appeal

from a district court judgment granting the defendants’ motion

for summary judgment. An airman claimed that the FAA

violated her rights to procedural due process in revoking her

airman’s certificate. The FAA revoked the airman’s certificate

under its authority pursuant to Chapter 20 of Title 49. The

Seventh Circuit heid that Section 1486 expressly provides that

any challenge to an FAA decision made under Chapter 20 can

be brought only in the Court of Appeals, and dismissed the case

for lack of subject matter jurisdiction in the district court:

And most importantly, in plain disregard of the express

terms of section !486 of the Act, which prescribes direct

and exclusive review in the court of appeals, plaintiff

instituted the present action in the district court. This

action is in derogation of the well settled principle that

collateral attacks upon administrative orders are not per-

missible. Myers v. Bethlehem Shipbuilding Corp., 303 U.S.

41, 48-50, 58 S.Ct. 459, 462-463, 82 L.Ed. 638 (1938);

Robinson v. Dow, 552 F.2d 855, 858 (6th Cir.1975); Oling

v. Air Line Pilots Ass’n., 346 F.2d [270] at 276-277 [( 7th

Cir.1965)]; see Administrative Procedure Act § 10(b), 5

U.S.C. § 703 (1976) (“The form of proceeding for judicial

review is the special statutory review proceeding relevant

to the subject matter in a court specified by statute or, in

the absence or inadequacy thereof, any applicable form of

legal action ... in a court of competent jurisdiction.”); see

also Denberg v. United States Railroad Retirement Board,

696 F.2d 1193 (7th Cir. 1983). It is clear from the

statutory scheme established by Congress that the F.A.A.

order was not subject to collateral attack in the district

court. Robinson v. Dow, supra; Oling v. Air Line Pilots

Ass’n., supra. Thus the district court lacked subject matter

jurisdiction over the claims asserted by plaintiff-appellant.

708 F.2d at 1291-93 ( footnote omitted ). In dismissing the case

for lack of subject matter jurisdiction in the district court, the

Seventh Circuit adhered to a long line of [1019] decisions in

this Circuit and others recognizing the congressional mandate in

es

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A-4]

Section 1486 of exclusive jurisdiction to review Chapter 20 FAA

orders in the Courts of Appeal.”

Thus, if the November 14, 1984 decision of the FAA was

made solely under Chapter 20 of Title 49, subject matter

jurisdiction to review that decision clearly vests only in the

Court of Appeals under Section 1486. Suburban O’Hare sets

forth three principal arguments to support its contention that

the November 14, 1984 decision must be reviewed in the

district court. First, Suburban O’Hare contends that the

decision was made not under Chapter 20 of Title 49, but under

Chapter 31 of Title 49, the federal airport aid statute. Accord-

ingly, Section 1486, which applies only to FAA orders made

7 See, e.g., City of Aurora v. Hunt, 749 F.2d 1457, 21 ERC

2132 (10th Cir.1984) ( Tenth Circuit exercised its jurisdiction to

review an FAA rule issued under Chapter 20 and under 14

C.F.R. Part 77); City of Alexandria v. Helms, 728 F.2d 643

(4th Cir.1984) (Fourth Circuit reversed for lack of subject

matter jurisdiction the district court’s issuance of a preliminary

injunction to prevent implementation of a Chapter 20 FAA

order regarding flight patterns of Washington National Air-

port); State of New York v. Federal Aviation Administration,

712 F.2d 806, (2d Cir.1983) (Second Circuit affirmed the

district court’s dismissal, for lack of subject matter jurisdiction,

of a challenge to the FAA’s refusal to amend an airport

operating certificate it had previously issued under 49 U.S.C.

§ 1428 ( part of Chapter 20) }; Sima Products Corp. v. McLucas,

612 F.2d 309 (7th Cir.1980); cert. denied, 446 U.S. 908, 100

S.Ct. 1834, 64 L.Ed.2d 260 (1980) (Seventh Circuit held that a

challenge to regulations promulgated under 49 U.S.C. § 1356

(part of Chapter 20) governing inspections of passengers was

reviewable exclusively in the Court of Appeals); City of Roches-

ter v. Bond, 603 F.2d 927 (D.C.Cir. 1979) (D.C.Circuit held

that a “no hazard” determination of the FAA pursuant to 49

U.S.C. § 1501 (part of Chapter 20) was an order reviewable

exclusively in the Court of Appeals, following other courts

“consistently holding that judicial review under these statutes is

exclusive.” Id. at 934); Oling v. Air Lines Pilots Association, 346

F.2d 270 (7th Cir.1965) (Seventh Circuit reversed a challenge

to an FAA action based on Section 408 ( part of Chapter 20) ).

A-42

under Chapter 20, does not vest exclusive jurisdiction to review

the decision in the Court of Appeals. Closely tied to this

argument is Suburban O’Hare’s assertion that the district court

clearly has subject matter jurisdiction to hear Suburban

O’Hare’s claim that the defendants violated the Consent Decree

in the J/linois v. Butterfield litigation. Finally, Suburban O’Hare

contends that even if the November 14, 1984 decision was

made pursuant to Chapter 20 of Title 49, the decision does not

constitute an “order” reviewable exclusively in the Court of

Appeals under Section 1486 because the FAA administrative

record is either nonexistent or is based upon disputed issues of

fact which must be examined and reviewed in the first instance

in the district court pursuant to the general jurisdictional grant

of 28 U.S.C. § 1331 and Sections 702 and 706 of the Adminis-

trative Procedure Act. Each of these arguments is examined

below.

Il. The November 14, 1984 FAA Decision Consisted of FAA

Orders Rendered Under Both Chapters 20 and 31 of Title 49.

[3] Suburban O’Hare contends that the November 14,

1984 decision of the FAA was not an “order” made under

Chapter 20 and thus is not exclusively reviewable in the Court

of Appeals under Section 1486 which provides for such ex-

clusive review only for orders made under “this chapter.” 49

U.S.C. § 1486(a). Instead, Suburban O’Hare asserts that the

‘‘order” challenged here is the FAA’s substantive and proce-

dural compliance with the Airport and Airway Improvement

Act of 1982, 49 U.S.C. § 2201, et seg.,8 and as such was made

under Chapter 31 of Title 49.

8 The Airport and Airway Improvement Act of 1982

(“AAIA”), 49 U.S.C. § 2201, et seg., is the current federal

airport aid statute appearing in Chapter 31 of Title 49. Its

immediate precessor was the Airport and Airway Development

Act of 1970 (P.L. 91-248), which in turn was immediately

preceded by the Federal Airport Act of 1946 (P.L. 377). Each

of these statutes has always been codified separately from

Chapter 20 of Title 49.

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A-43

Suburban O’Hare attached the November 14, 1984 letter

approving the ALP and the 20 page Record of Decision of the

FAA as Exhibits 3 and 4, respectively, to its complaint. As

such, they are part of the [1020] complaint pursuant to Rule 10

of the Federal Rules of Civil Procedure. Suburban O’Hare

contends that by this approval, reflected in Exhibits 3 and 4, the

FAA violated the letter and spirit of the Consent Decree and

several federa! laws, including the AAIA, NEPA, the Clean Air

Act, and the APA. The November 14, 1984 decision reflects

that the FAA relied upon 14 C.F.R. Part 77 (promulgated

under Chapter 20), Part 157 ( promulgated under Chapter 20),

and Part 152 (promulgated under Chapter 31). In addition,

the FAA granted the City an exemption from the 14 C.F.R.

Part 139 regulations (promulgated under Chapter 20). Thus,

of the four “orders” entered by the FAA, three were under

Chapter 20.9

8 Part 157 states that it is promulated under 49 U.S.C.

§§ 1350, 1354(a), and 1355, See 14 C.F.R. Part 157 at p. 156

(1984). Part 77 states that it is promulgated under 49 U.S.C.

§§ 1304, 1348, 1354, 1431, and 1501. The FAA’s authority for

the grant to the City of an exemption from the clearance

standards of airport taxiways under Part 139 of 14 C.F.R. arises

from 49 U.S.C. §§ 1432 and 1421(c). All of these statutory

references are part of Chapter 20. for example, Section 1350

States:

§ 1350. Establishment or construction of airports and

landing areas not involving expenditure of Federal funds.

In order to assure conformity to plans and policies for, and

allocations of, airspace by the Administrator under section

1348 of this title, no airport or landing area not involving

expenditure of Federal funds shall be established, or

constructed, or any runway layout substantially altered

unless reasonable prior notice thereof is given the Adminis-

trator, pursuant to regulations prescribed by him, so that

he may advise as to the effects of such construction on the

use of airspace by aircraft.

By contrast, Part 152 of 14 C.F.R. was promulgated under the

Airport and Airways Development Act of 1970, as amended, 49

U.S.C. § 1701, et seg., which subsequently became part of

Chapter 31 of Title 49.

A-44

Suburban O’Hare does not contest the fact that the

November 14, 1984 FAA decision constituted at least in part an

“order” entered under Chapter 20. In its memorandum in

opposition to the defendants’ motion to dismiss, Suburban

O’Hare stated: “‘Of the ‘orders’ entered by the FAA on Novem-

ber 14, 1984, two of those orders were under Chapter 20.” (P.

4.) Suburban O’Hare contends that “[t]hese orders are not

challenged in this action.” (Pp. 4-5.) Suburban O’Hare further

contends that because the November 14, 1984 FAA decision

was also based on the AAIA, Chapter 31 of Title 49, the

exclusive jurisdiction of the Court of Appeals to review the

entire order under Section !486 is usurped by the inclusion of

this additional element. Indeed, Suburban O’Hare’s allegation

that the defendants have violated the Consent Decree is

intimately related to its argument that the November 14, 1984

FAA decision should have been made properly under Chapter

31. That argument was succinctly summarized by Suburban

O’Hare in its. memorandum in opposition to the defendants’

motion to dismiss, at pp. 16-17:

In this lawsuit, Plaintiffs also seek to enforce the 1982

Consent Decree which sets the legal framework for the

substantive decision made by the FAA. As set forth in the

Complaint and as admitted by Defendants, the Consent

Decree remedied the past piecemeal practices followed by

Chicago and the FAA in giving isolated grants, and

required the FAA to make the substantive decisions nor-

mally made at the time grant applications were received

now—at the time the entire Master Plan was sub-

mitted—rather than wait until individual isolated grant

applications are received.

Chicago and the FAA admit these allegations for the

purposes of these motions, and the FAA itself stated that it

was making these decisions now in its November 14, 1984

approval. However, in their memoranda, Defendants

make unsupported assertions that the requirements of the

Airport and Airway Improvement Act of 1982 do not

apply because no grant application has been made. That

argument is exactly what the Consent Decree framework

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A-45

was intended to prevent by requiring the substantive

decision to be made now rather than after the project was

almost complete.

( Footnote omitted. )

Suburban O’Hare’s argument does have some meritin that

there is support in the [1021] Consent Decree, in the Final

Environmental Impact Statement, and in the November 14,

1984 FAA decision itself for Suburban O’Hare’s position that

the parties to the Consent Decree contemplated that that

decision would be rendered under the AAIA, Chapter 31. The

defendants’ contention that the AAIA is not applicable because

it is uncontested that no federal funding has yet been sought for

the Phase II construction is unpersuasive because it is equally

uncontested that federal funds, in the amount of at least $43

million, will be sought ultimately to help fund the Phase II

construction. The defendants can not avoid their obligations

under the AAIA simply because they have not yet applied for

such funding, particularly in light of Suburban O’Hare’s allega-

tions, which must be taken as true for purposes of these motions

to dismiss, that such piecemeal after-the-fact funding of con-

struction projects resulting in the expansion of O’Hare was

precisely what the Consent Decree was designed to prevent.

Moreover, after briefing was completed on these motions, the

Court was informed that the City did indeed apply for a $1.2

million federal grant for Phase II construction as early as

November 30, 1984, and the plaintiffs have been granted leave

to amend their complaint to so allege.

Nonetheless, Suburban O’Hare has not demonstrated that

the FAA’s approval under Chapter 20 pursuant to Parts 77,

139, and 157 was either unnecessary or insubstantial. Neither

has Suburban O’Hare alleged that those parts of the FAA’s

November [4, 1984 decision that are based on Chapter 20 are

separable from those parts based on Chapter 31. Nor has

Suburban O’Hare alleged that the FAA’s Chapter 20 orders are

a mere ruse to avoid review of the defendants’ conduct

A-46.

pursuant to the Consent Decree and under the APA in this

Court.

In light of the overwhelming weight of authority that

mandates exclusive review in the Court of Appeals whenever a

FAA decision based on Chapter 20 is challenged, see discussion

below, this Court believes that it cannot exercise its general

federal question jurisdiction to review the FAA November 14,

1984 decision which at least in part, as Suburban O’Hare

concedes, consists of orders rendered pursuant to the FAA’s

statutory authority under Chapter 20 of Title 49. Thus, even if

the defendants did in fact violate the Consent Decree as

Suburban O’Hare contends by failing to “make the substantive

decisions [required by the AAIA] now in its November 14,

1984 approval,” it is undisputed that the November 14, 1984

FAA decision was made, at least in part, under Chapter 20 of

Title 49. As such, it is reviewable only by the Court of Appeals

under Section 1486.

The November 14, 1984 FAA decision is a unitary order

approving, under various statutory requirements, the form that

O’Hare will take when Phase II construction is completed.

Suburban O’Hare challenges the FAA’s procedural and

substantive compliance with various federal laws in reaching

that decision to approve the Master Plan and the ALP for

O’Hare. Moreover, Suburban O’Hare seeks not to set aside an

isolated component of the decision, but that this Court declare

that “the November 14, !984 FAA decision approving the City

of Chicago’s Master Plan project is null, void and of no force

and effect ...” and that an injunction be entered restraining

defendants “from taking any steps in reliance on the November

14, 1984 FAA decision. .. .” Accordingly, Suburban’s O’Hare’s

complaint is an attack on a single unitary order entered by the

FAA. In conceding that the November 14, 1984 FAA decision

is based in part on Chapter 20, Suburban O’Hare has in effect

conceded that the entire decision must be reviewed only in the

Court of Appeals.

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A-47

Even if the November 14, 1984 FAA decision should have

been made only pursuant to Chapter 31 of Title 49, the AAIA,

the cases cited by Suburban O’Hare do not support its con-

tention that the district court has general federal question

jurisdiction under 28 U.S.C. § 1331 and the APA te review an

order under Chapter 31. Suburban O’Hare contends that the

jurisdictional issue before this Court is_ directly con-

[1022 ]trolled by the decisions in Schwab v. Quesada, 284 F.2d

140 (3d Cir.1960), and City of Dallas v. Rentzel, 172 F.2d 122

(Sth Cir.1949), cert. denied, 338 U.S. 858, 70 S.Ct. 99, 94 L.Ed.

525 (1949), both involving the Federal Airport Act, a pre-

decessor to the AAIA. Suburban O’Hare asserts that in these

cases the FAA itself successfully argued to the Circuit Courts of

Appeal that because decisions made under the Federal Airport

Act were made under a Chapter in Title 49 different from

Chapter 20, the exclusive jurisdiction provision of Section 1486

did not apply, thus rendering those decisions unreviewable in

the Courts of Appeal. But none of the cases cited by Suburban

O’Hare address the jurisdiction of the district court to review

decisions under the Federal Airport Act. Indeed, in Schwab,

the Third Circuit found no jurisdiction to review the decision

under the Federal Airport Act because it held that the decision

was unreviewable in any court. 284 F.2d at 142. In City of

Dallas, the Fifth Circuit acknowledged the FAA’s argument

that the order under the Federal Airport Act was unreviewable

in any court, but found it unnecessary to reach the issue. 172

F.2d at 123 and nn. 7, 8. Cf. Morris v. Helms, 681 F.2d 1162,

1164 (9th Cir.1982}. Whatever the continuing validity of the

Schwab and City of Dallas cases, particularly in light of the new

AAIA which is at issue here, they do not stand for the

proposition that if the Court of Appeals lacks jurisdiction to

review an FAA order, the district court necessarily has such

jurisdiction: the order may simply be unreviewable.

Because this Court holds that the FAA November 14, 1984

decision is reviewable in the Court of Appeals under Section

A-48

1486, this Court need not, and, therefore, does not decide

whether a Chapter 31 FAA order pursuant to the AAIA is

unreviewable in any court. To the contrary, district courts have

assumed general federal question jurisdiction to decide cases

brought under the AAIA as well as other federal statutes,

although these courts have not directly addressed the

jurisdictional issue because they were not directly confronted

with it and because they unquestionably had jurisdiction over

claims based on other federal statutes. See, e.g., Life of the

Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denied,

416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Citizens

Airport Committee of Chesterfield County v. Volpe, 351 F.Supp.

52 (E.D.Va.1972).

It is worth noting, however, that Chapter 31 contains no

judicial review provision itself. Moreover, the Supreme Court

has recently held that neither the general federal question

jurisdiction under 28 U.S.C. § 1331 nor the APA provide an

independent basis for establishing jurisdiction in the district

court to review an agency’s decision when a statute directs an

exclusive form of judicial review:

With respect to our hoiding that there is no jurisdiction

pursuant to § 1331, the dissent argues that § 405(h)

{prescribing a different form of review for Medicare

claims] is not a bar to § 1331 jurisdiction because Ringer’s

challenge to the Secretary’s rule is “arising under” the

Administrative Procedure Act, not the Medicare Act. Post,

at 647 [104 S.Ct. at 2025], But the dissent merely resur-

rects an old argument that has already been raised and

rejected before by this Court in Weinberger v. Salfi [422

U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)], supra.

As we have already noted earlier, ante, at 636 [104S.Ct. at

2022], the Court rejected the argument that the claimant

in Salfi could bring his constitutional challenge to a Social

Security Act. Ringer’s claim may well “‘aris[e] under” the

APA in the same sense that Salfi’s claim arose under the

Constitution, but we held in Sa/fi that the constitutional

claim was nonetheless barred by § 405(h). It would be

anomalous indeed for this Court to breathe life into the

ja acihidaveseld JA étiteabbind P

ae a EVE tte Sees Pare

:

:

A-49

dissent’s already discredited statutory argument in order to

give greater solicitude to an APA claim than the Court

thought the statute allowed it to give to the constitutional

claim in Salfi..

Heckler v. Ringer, U.S. __, 104 S.Ct, 2013, 2025-26, 80

L.Ed.2d 622 (1984); see [1023] also Califano v. Sanders, 430

U.S. 99, 104-09, 97 S.Ct. 980, 983-86, 51 L.Ed.2d 192 (1977)

(Supreme Court held that Section 702 of the APA must be used

together with 28 U.S.C. § 1331 and with another substantive

statute to confer subject matter jurisdiction on the district court;

Section 702 and 28 U.S.C. § 1331 alone do not confer jurisdic-

tion ).

The holding of this Court that the November 14, 1984

decision of the FAA is reviewable only in the Court of Appeals

because it is a mixed decision made under the FAA’s authority

based on both Chapter 20 and Chapter 31 of Title 49 is

consistent with the law of this and other Circuits. In cases

involving the review of FAA orders which also contained claims

made under other statutes or the Constitution, and in cases

involving paratilel statutes with provisions similar to Section

1486 vesting exclusive jurisdiction in the Court of Appeals for

judicial review of final agency orders, this Circuit and others

have uniformly held that judicia! review rests exclusively in the

Court of Appeals. For example, as noted above in Gaunce v.

deVincentis, 708 F.2d 1290 (7th Cir. 1983) cert. denied,

U.S. , 104 S.Ct. 417, 78 L.Ed.2d 354 ( 1983), the Court of

Appeals sua sponte dismissed for lack of jurisdiction on appeal

from a district court judgment upholding the procedural due

process afforded an airman by the FAA in a hearing relating to

the revocation of an airman’s certificate. As here, the plaintiff

in Gaunce raised constitutional claims, but the Seventh Circuit

held that even the assertion of a claim under the Constitution,

jurisdiction over which indisputably vests in the district court

under 28 U.S.C. § 1331, cannot divest the Court of Appeals’

exclusive jurisdiction to decide the entire order:

A-50

The statutorily prescribed requirements cannot be dis-

pensed with merely because the administrative proceed-

ings dealt with an agency’s proof of specified regulatory

violations, while appellant is raising a due process con-

stitutional claim in the judicial proceeding. So long as

effective means for judicial review are ultimately available

where the constitutional claims can be raised, appellant

may not dispense with the requirement of prior adminis-

trative review, otherwise judicial review would be an

abstract process.

Id. at 1293.

In City of Alexandria v. Helms, 728 F.2d 643 (4th

Cir.1984), the Fourth Circuit reversed a preliminary injunction

issued by the district court to prevent implementation of an

FAA order relating to a “scatter plan” for flight patterns at

Washington’s National Airport instituted by the FAA to more

equitably distribute aircraft noise among area surrounding the

airport. The court held that the district court lacked subject

matter jurisdiction because Section 1486 “vests review of FAA

orders exclusively in the Courts of Appeals.” Jd. at 645. The

Court of Appeals flatly rejected the plaintiffs’ contention that

their claims under NEPA provided an independent basis for

jurisdiction in the district court:

Alexandria and Arlington additionally contend that

the National Environmental Policy Act ( NEPA) provides

an independent basis for district court jurisdiction in this

case. Cf. City of Irving v. Federal Aviation Administration,

539 F.Supp. 17, 34 (N.D.Tex.1981) (FAA’s decision not

to issue an EIS was subject to review in the district court

when there was no order to review and only claim was

under NEPA). However, when review of an agency order

is at issue and when Congress has vested exclusive jurisdic-

tion over that review in the Courts of Appeals, NEPA does

not provide independent grounds for district court jurisdic-

tion.

Id. at 646 ( footnote omitted ).

ee =

Bk wrens ne bere

A-51

Similarly, in City of Rochester v. Bond, 603 F.2d 927

(D.C.Cir.1979), the District of Columbia Circuit Court of

Appeals rejected the argument that plaintiffs NEPA claim

provided a basis for concurrent district court jurisdiction for

review of an FAA advisory determination that construction of a

radio antenna near an airport would be “no hazard,” a

determination which the court deemed to constitute a final

order [1024] exclusively reviewable only in the Court of

Appeals:

First, we disagree that the district court may exercise

concurrent jurisdiction merely because a violation of

NEPA is alleged. The allegation may be raised directly in

the courts of appeals; and insofar as it may affect the

lawfulness of a directiy appealable order we think it must

be.

Id. at 936 ( footnotes omitted ).1°

The Seventh Circuit has also held that the inclusion of a

NEPA claim provides no basis for concurrent jurisdiction

permitting district court review of an agency’s decision. In City

of West Chicago, Illinois v. United States Nuclear Regulatory

Comm’n., 701 F.2d 632 (7th Cir.1983), the court affirmed the

district court’s dismissal, for lack of subject matter jurisdiction,

of a suit challenging the Nuclear Regulatory Commission’s

1° In a footnote, Bond distinguished State of Illinois ex rel.

Scott v. Butterfield, 396 F.Supp. 632 (N.D.II1.1975), because

there was no final agency action by the FAA in the Illinois v.

Butterfield \itigation at that time. 603 F.2d at 936, n. SI.

Clearly the district court had subject matter jurisdiction in the

Illinois v. Butterfield \itigation under 28 U.S.C. § 1331 when it

entered the Consent Degree in 1982. Suburban O’Hare’s

argument that the decision of the district court set forth in State

of Illinois ex rei. Scott v. Butterfield, 396 F.Supp. 632 (N.D.IIL

1975) that it possessed subject matter jurisdiction is res judicata

here is disingeneous in light of the fact that no final FAA

orders, Chapter 20 or otherwise, which the district court was

asked to review, had issued at that time.

A-52

order allowing the demolition of certain buildings under the

parallel judicial review provision, 28 U.S.C. § 2342(4), con-

cerning review of the Commission’s Order. The Seventh Circuit

concluded that the district court lacked jurisdiction to determine

if the agency’s order complied with NEPA:

Despite the admission in its brief, the City comtinues to

argue that the district court had jurisdiction to review the

claim of illegal segmentation under NEPA. Susquehanna

Valley Alliance v. Three Mile Island Nuclear Reactor, 619

F.2d 231 (3d Cir.1980), certiorari denied sub nom. Gener-

al Pub. Utilities Corp. v. Susquehanna Valley Alliance, 449

U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824. See supra at

650-652. Suffice it to say that as in this case, where final

agency action brings an order within the ambit of 28

U.S.C. § 2342(4), the district court has no concurrent

jurisdiction with the court of appeals to review the order

for NEPA compliance. City of Rochester v. Bond, 603 F.2d

927, 936 (D.C.Cir.1979).

Id. at 652 n..21.1' See also Sierra Club. v. United States Dept. of

Transportation, 753 F.2d 120, No. 83-1832 (D.C.Cir.1985)

(Court of Appeals exercised jurisdiction under Section 1486 to

decide a challenge to two FAA orders entered under Chapter

20 even though the petitioners claimed that, in addition to

NEPA, a section in another chapter of Title 49, 49 U.S.C.

11 The district court’s decision in City of West Chicago,

which was affirmed, also held that the inclusion of a due

process claim did not alter the Court of Appeals’ exclusive

jurisdiction:

Involved here is an express jurisdictional mandate to the

court of appeals which this court must respect. Although

the plaintiff is raising a constitutional claim, it is directed

to, and arises from the NRC’s grant of a license amend-

ment under the AEA. Therefore, this constitutional chal-

lenge pertains to the final order issued by the NRC and

must be reviewed by the court of appeals.

City of West Chicago, Illinois v. United States Nuclear Regu-

latory Comm’n, 542 F.Supp. 13, 15 (N.D.IIL.1982). (Citations

omitted. )

A-53

§ 303(c), had been violated by the order); City of Aurora v.

Hunt, 749 F.2d 1457. 21 ERC 2132 (10 Cir.1984) (Tenth

Circuit reviewed an FAA rule issued under Chapter 20 and also

decided a challenge under NEPA pursuant to its exclusive

jurisdiction under Section 1486). Thus, Suburban O’Hare’s

claims under Chapter 31 of Title 49, as well as its claims under

NEPA, and the Clean Air Act, and the due process con-

stitutional claim, cannot defeat Section 1486 exclusive jurisdic-

tion in the Court of Appeals of an FAA decision rendered in

part under Chapter 20.

The Seventh Circuit has stated repeatedly that even where

doubt exists as to whether jurisdiction properly lies in the Court

of Appeals or the district court to review an agency decision

which arguably [1025] may fall within the ambit of an

exclusive Court of Appeals’ jurisdictional provision, all doubt

must be resolved in favor of direct review by the Court of

Appeals. E.g., Indiana & Michigan Electric Co. v. United States

Environmental Protection Agency, 733 F.2d 489, 491 (7th

Cir.1984) (A “judge” made presumption [exists] in favor of

court of appeals review in doubtful cases ... [because] district

court review adds another laver to the review process... .);

Field Container Corp. v. Interstate Commerce Comm’n., 712

F.2d 250, 255 ( 7th Cir.1983), cert. denied, US. 104

S.Ct. 701, 79 L.Ed.2d 167 (1984) (“... the policy of routing

review proceedings to the courts of appeals directly where the

statute will allow this entitles us to resolve our doubts in favor

of [court of appeals] jurisdiction ...”); Denberg v. United

States Railroad Retirement Board, 696 F.2d 1193, 1197 (7th

Cir.1983), cert. denied, ___. US. 104 S.Ct. 1706, 80

L.Ed.2d 180 (1984) (Any jurisdictional ambiguity is resolved

in favor of Court of Appeals jurisdiction.). Indeed, even

Suburban O’Hare’s assertions that this Court must exercise its

jurisdiction under §1331 and the APA to decide its claims that

the defendants violated the Consent Decree cannot vitiate the

A-54

exclusive jurisdiction of the Court of Appeals in the first

instance. '2

Ill. Suburban O’Hare’s Allegations Of Consent Decree Viola-

tions Do Not Affect The Exclusive Jurisdiction Of the Court

Of Appeals.

Suburban O’Hare asserts that the Consent Decree entered

into between the parties in the Ji/linois v. Butterfield litigation

provided that the FAA was to approve or disapprove Chicago’s

20 year long-term development program to meet Chicago’s

future aviation needs through the “Master Plan” decision-

making process. To accomplish this, the FAA was to compare

Chicago’s Master Plan proposal with all other alternatives to

meet Chicago’s long-term aviation needs, and toward this end

the FAA was to prepare or complete a Final Environmental

Impact Statement pursuant to the requirements of NEPA.

According to Suburban O’Hare, the Consent Decree provided a

procedural framework in which both FAA substantive and

procedural decisions, normally not undertaken until the receipt

of a federal grant application, would be made at the time the

Master Plan was submitted and before any Phase II construc-

tion was to begin.

By entering into the Consent Decree, the plaintiffs in the

Illinois v. Butterfield \itigation purportedly received the promise

of the FAA and the City defendants that construction of Phase

I] would not begin until the defendants followed the procedural

12 See Assure Competitive Transportation, Inc. v. United

States, 629 F.2d 467, 472 (7th Cir. 1980), cert. denied, 449 U.S.

1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981) (court held that

exclusive jurisdiction lies in the court of appeals to review an

1.C.C. order even though the order itself was not directly

attacked because “‘the practical effect of a successful suit would

contradict or countermand a Commission order,” quoting B.F.

Goodrich Co. v. Northwest Industries, Inc., 424 F.2d 1349, 1353-

54 (3d Cir. 1970), cert. denied, 400 U.S. 822, 91 S.Ct. 41, 27

L.Ed.2d 50 (1970)).

A-55

prerequisites set forth in the Decree leading to a decision to

approve or disapprove the Master Plan. In turn, the defendants

allegedly were allowed to proceed with Phase I construction

without preparing an Environmental Impact Statement and

without ongoing litigation over Phase I construction.

As an initial matter, it must be noted that if Suburban

O’Hare was indeed interested in enforcing the terms of the

Consent Decree, as it contends, it should have filed a motion for

such enforcement and the imposition of civil contempt and

other relief in the Jilinois v. Butterfield litigation, Case No. 74 C

2410. Instead, Suburban O’Hare filed a new complaint which

was randomly assigned to this Court. Suburban O’Hare states

that in filing a new complaint it merely followed the directions

of the Office of the Clerk of this District. Suburban O’Hare

allegedly was informed by that Office that the Illinois v.

Butterfield case was closed for administrative purposes when

the Consent Decree was entered in October, 1982. Moreover,

Judge [1026] Roszkowski, who entered the Consent Decree,

has since transferred to the Western Division of the United

States District Court for the Northern District of Illinois.

According to Suburban O’Hare:

The office of the Clerk of the Court has advised us that

when a matter is presented to the assignment desk that

relates to a closed case that had been assigned to Judge

Roszkowski, the assignment desk would assign the matter

to a new judge by lot. That procedure was followed in this

case.

Plaintiffs Memorandum On Consent Decree Issues at

p. 10 n. 5S.

Unfortunately, however, Suburban O’Hare neglects to

mention that the Office of the Clerk never informed it to file a

new complaint in the district court. This Court has been

informed by Stuart Cunningham, the Clerk, that Suburban

O’Hare properly should have filed a motion for enforcement of

the Consent Decree in the //linois v. Butterfield litigation, Case

A-56

No. 74 C 2410, at which point it would have been reassigned at

random by order of the Executive Committee from Judge

Roszkowski’s docket if Judge Roszkowski did not wish to retain

the case.

In this instance, although the result may have been the

same because the matter ultimately was assigned to this Court

at random by lot, insistence on the proper procedure is not

trivial. First, Judge Roszkowski, the judge who entered the

Consent Decree and who was familiar with the progress of the

Illinois v. Butterfield \itigation to that point, should have been

given the opportunity to retain it. Judicial economy dictates

such a result as this Court was forced to search through three

containers of court files from the federal warehouse of this

district to familiarize itself with the case.'3 Second, this Court

hesitates to establish a precedent of allowing the procedure

adopted by Suburban O’Hare to be followed in the future.

Because this Court and others in this District are burdened with

literally hundreds of cases, it is both wasteful and counter-

productive to file a new complaint whenever enforcement of a

previously-entered consent decree in another case is sought. '4

[4-6] Nonetheless, Suburban O’Hare quite properly

argues that there is no question that subject matter jurisdiction

13 Many of the court documents in the J/linois v. Butterfield

litigation were missing from these containers. Indeed, because

the Consent Decree itself was missing, and because Suburban

O’Hare omitted to attach it to the complaint and then belatedly

submitted a version of the Consent Decree different from that

submitted by the defendants, much needless time and energy

were devoted in searching for it.

14 The cases cited by Suburban O’Hare as precedent for

the procedure it followed here of filing a new complaint simply

do not support such a procedure. For example, in Sarabia v.

Toledo Police Patrolman’s Association, 601 F.2d 914 (6th

Cir.1979), nothing in the court’s opinion indicates that the

enforcement order appealed from was entered in any case but

the original case in which the consent decree was entered.

ee

A-57

exists generally in the district court to enforce its own consent

decree. In the Consent Decree entered in the Illinois v.

Butterfield litigation, the district court expressly retained

jurisdiction to enforce the decree, but even had it not done so, it

is well-settled that a district court has ancillary jurisdiction to

enforce its own consent decree. Sarabia v. Toledo Police

Patroiman’s Ass’n., 601 F.2d 914 (6th Cir.1979); see generally,

Wright, Miller & Cooper, Federal Practice and Procedure:

Jurisdiction 2d. § 3513. Although the normal remedy for a

consent decree violation is the imposition of civil contempt, see,

e.g., United States v. Board of Education of the City of Chicago,

744 F.2d 1300, 1308 (7th Cir. 1984): Shakman v. Democratic

Organization of Cook County, 533 F.2d 344 (7th Cir.1976),

cert. denied, 429 U.S. 858, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976),

the court may award any appropriate relief in addition to

enforcing the decree. See, e.g., Shakman, supra at 351 (award-

ing attorneys’ fees and expenses as well as compensatory

damages); Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d

126, 130 (2d Cir.1979) (“‘The district court is not free to

exercise its discretion and withhold an or-[1027jder in civil

contempt awarding damages, to the extent they are estab-

lished.”’).

Despite the existence of jurisdiction generally to enforce its

own judgments, the question posed in this case is whether the

district court must exercise its jurisdiction to enforce a Consent

Decree that in essence requires it to review an agency decision

which Congress has mandated by statute is reviewable only in

the Court of Appeals. This question is a matter of first

impression so far as this Court is able to determine.'5 For the

15 From the inception of this case, this Court has repeat-

edly asked the parties to brief, by citing relevant authority, the

issue of whether Suburban O’Hare’s claim of Consent Decree

violations affects the exclusive jurisdiction of the Court of

Appeals to review the FAA November 14, 1984 decision.

Neither the FAA nor the City defendants have cited any cases,

( Footnote continued on following page)

A-58

reasons set forth below, this Court holds that it cannot exercise

subject matter jurisdiction to enforce the Consent Decree under

the circumstances presented by this case.

[7] First, the cases discussed in Sections I and II of this

Opinion unequivocably hold that the assertion of any claim for

relief over which the district court has general federal question

jurisdiction does not divest the exclusive jurisdiction of the

Court of Appeals to review an FAA decision based in part on

Chapter 20 under Section 1486. For example, in Gaunce v.

deVincentis, 708 F.2d 1290, 1293 (7th Cir. 1983), cert. denied,

(Footnote continued from preceding page)

and none of the cases cited by Suburban O’Hare are on point.

For example. in Motorola, Inc. v. Computer Displays Inter-

national, 739 F.2d 1149 (7th Cir.1984), the Seventh Circuit

ruled that it did not possess jurisdiction to review a district

court’s finding of civil contempt for violation of a consent

decree in the absence of a district court order that included the

imposition of an appropriate sanction as well as the finding of

contempt. Motorola does not stand for the proposition that a

Court of Appeals never has original jurisdiction to enforce a

consent decree when the exercise of that jurisdiction is neces-

sary to effectuate its exclusive jurisdiction to review a Chapter

20 order. To the contrary, another case cited by Suburban

O’Hare, Brennan v. Winters Battery Manufacturing Co., 531

F.2d 317 (6th Cir.), cert. denied, sub. nom., Winters Battery

Manufacturing Co. v. Usery, 425 U.S. 991, 96 S.Ct. 2202, 48

L.Ed.2d 815 reh. denied, 429 U.S. 873, 97 S.Ct. 192, 50 L.Ed.2d

155 (1976), suggests that a Court of Appeals does indeed

possess original jurisdiction to enforce consent decrees:

“Enforcement by judicial decree provides a basis for contempt

proceedings in this court in event of noncompliance.” Jd. at 321

(citation omitted). Similariy, the case of District of Columbia

v. Train, 533 F.2d 1250 (D.C.Cir.1976), also cited by Subur-

ban O’Hare, does not support its argument that Courts of

Appeal may never hear cases involving consent decrees. To the

contrary, the court’s opinion suggests that the Court of Appeals

could properly decide the consent decree issues if the decree

was within the scope of exclusive statutory grant of jurisdiction.

Id. at 1254. See also n. 17 and accompanying text, infra.

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A-59

oe a 104 S.Ct. 417, 78 L.Ed.2d 354 (1983), the

plaintiff's assertion of a due process constitutional claim, over

which a district court unquestionably possesses general federal

question jurisdiction, had no affect on the Seventh Circuit’s

holding that jurisdiction vests exclusively in the Court of

Appeals to review a Chapter 20 order. '®

Similarly, Suburban O’Hare’s assertion of the defendants’

Consent Decree violations cannot deprive the Court of Appeals

of its exclusive jurisdiction conferred by statute to review the

FAA decision at issue in this case in the first instance. The

Court of Appeals may exercise jurisdiction over the enforce-

ment of the Consent Decree as well as its exclusive jurisdiction

under Section 1486 because it may exercise jurisdiction over

any proceedings which are incidental or ancillary to an original

action where original jurisdiction over the action lies in the

Court of Appeals.'7 Because the Court of Appeals is capable of

deciding all of the issues raised by Suburban O’Hare in

conducting its Chapter 20 review, the Con-[{1028]sent Decree

cannot affect subject matter jurisdiction over this case.

[8, 9] Second, parties cannot by their agreement alone

confer subject matter jurisdiction over a case which would not

otherwise exist. Green v. Department of Commerce, 618 F.2d

836, 839 (D.C.Cir.1980); Sadat v. Mertes, 615 F.2d 1176 (7th

Cir. 1980). Thus, even though parties may, by entering into a

consent decree, waive certain rights to which they otherwise

16 See also the district court’s decision in City of West

Chicago, Illinois v. United States Nuclear Regulatory Comm’n.,

542 F.Supp. 13, 15 (N.D.IIl. 1982), affd, 701 F.2d 632 (7th

Cir.1983), quoted at n. I1, supra.

17 As the Seventh Circuit stated in Natural Gas Pipeline

Co. v. Federal Power Comm’n., 128 F.2d 481, 484 (7th

Cir. 1942), “the court may by its own orders protect the rights of

the parties in any manner in which any trial court of equity or

general jurisdiction might do so in an injunction suit.”

A-60

might be entitled,1® they may not waive the right to exclusive

review of a Chapter 20 order under Section 1486 in the Court of

Appeals by entering into a consent decree and thereby confer

such jurisdiction by agreement on the district court.

Third, the Consent Decree in the TJilinois v. Butterfield

litigation by its terms excludes from its scope a review of the

actual FAA decision reached in approving or disapproving the

Master Plan. The operative paragraph of the Decree, states:

“The FAA has not made any determinations with respect to

[the Master Plan approval] and this Decree does not bind the

FAA with regard to any determinations it may make respecting

these matters.” (Consent Decree, J 1g at p. 4.) In one sense,

this language adds nothing because it merely states the obvious:

the FAA was not bound by the Consent Decree itself to either

approve or disapprove the Master Plan proposal after meeting

the procedural and substantive requirements of the Decree and

the various laws the parties were bound to follow. On the other

hand, this language is consistent with the FAA’s argument that

it never intended to, and never did, enter into a Consent Decree

which would render any decision it made on the Master Plan

reviewable in the district court.

Finally, at a pretrial conference held in this Court on

January 30, 1985, Suburban O’Hare in effect conceded that its

claims under the Consent Decree afford Suburban O’Hare

substantiaily the same relief as it seeks under its claims brought

pursuant to the APA. (Transcript of Proceedings at pp. 71-72.)

In fact, Count I of the complaint is grounded both in the APA

and in the Consent Decree. If the Consent Decree adds nothing

to the complaint, then the exclusive jurisdiction of the Court of

18 For example, in this case, it is not inconceivable, as the

City defendants have conceded, that the defendants might have

waived their right by entering into the Consent Decree not to be

subject to a private right of action for violations of certain

substantive laws such as the Clean Air Act. See Transcript of

Proceedings of January 30, 1985 before this Court at pp. 55-57.

A-61

Appeals to review the November 14, FAA decision under

Section 1486 cannot be altered by the Consent Decree.

This Court’s holding that the existence of the Consent

Decree and Suburban O’Hare’s claims thereunder do not affect

the exclusive jurisdiction of the Court of Appeals to review the

November 14, 1984 FAA decision does not suggest that the

Consent Decree was never enforceable in the district court.

Contrary to the defendants’ suggestion, the Consent Decree is

not a useless document that provides no substantive rights to

Suburban O’Hare. Subject matter jurisdiction to enforce the

Decree and to address any claimed violations of the various

laws that the defendants bound themselves to follow in the

Decree unquestionably existed in the district court before

November 14, 1984, the date the FAA rendered its decision.

Once that decision issued, however, jurisdiction vested solely in

the Court of Appeals to review it pursuant to Section 1486

because it was rendered under both Chapter 20 and Chapter 31

of Title 49.

IV. The November 14, 1984 FAA Decision Is An “Order”’.

[10] Suburban O’Hare argues that, should this Court

decide that the November 14, 1984 decision of the FAA

approving the Master Plan and the ALP for Phase II construc-

tion at O’Hare falls within the ambit of Section 1486 because it

was at least in part made under Chapter 20, then it is not an

“order” within the meaning of Chapter 20. Suburban O’Hare’s

contention is based on the following reasoning:

[1029] 1) The scope of judicial review provided in Section

1486 is that the FAA’s factual findings are subject to

review under the “substantial evidence” test. 49 U.S.C.

§ 1486(e).

2) The “substantial evidence” test necessarily con-

templates that an agency adjudicatory hearing ‘“‘on the

record” was conducted pursuant to Section 556 and 557 of

the APA. Citizens to Preserve Overton Park, inc. v. Volpe,

402 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136

(1971).

A-62

3) In this case, no FAA hearing under Section 556 and 557

of the APA was conducted because the FAA is not

statutorily required to conduct such a hearing by Title 49.

4) Where no formal administrative record has been pre-

pared, or where there are disputes about the contents of

the Overton Park record of the agency whose decision is

the result of informal rather than a formal adjudication,

the district court must exercise its general federal question

jurisdiction to review the decision in the first instance to

resoive all disputed issues of fact.19 Moreover, the dis-

covery procedures available in the district court are essen-

tial to delineate the extent of the administrative record.

As the FAA points out, Suburban O’Hare’s argument is

premised upon twisting the logic of the Supreme Court’s

holding in Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Suburban

O’Hare contends that because a “substantial evidence” test is

authorized under the APA only when an agency conducts a

formal adjudicatory hearing under Sections 556 and Section

557, this 1:equires the reverse: i.e., where, as in Section 1486, a

“substantial evidence” test is required, the agency must have

conducted a formal Sections 556, 557 adjudicatory hearing.

The problem with this argument is that it addresses only the

19 Suburban O’Hare contends that the disputed issues of

fact in this case include disputes in the following major areas:

“A. The metropolitan aircraft operations demand and the

traffic allocation between Q’Hare and Midway (i.e., the

traffic splits of the metropolitan demand ).

B. The ‘capacity’ of O’Hare to accommodate its share of

the metropolitan aircraft operations demand and the delay

associated with that capacity assumption.

C. The alternatives to O’Hare expansion to accommodate

the forecast aircraft operations demand.

D. The determinations made under Section 176(c) of the

Clean Air Act and the related FAA regulations cited in the

Complaint.”

Suburban O’Hare’s Motion For An Order To Compel Federal

Defendants To File The Record, at pp. 9-10.

se Nad ih ahd Ah alee cat

A-63

scope of or the standard for judicial review and is not directed

at all to the reviewing court’s subject matter jurisdiction to

conduct the review.

Both the Seventh Circuit and other Circuit Courts of

Appeal have held that application of a “substantial evidence”

test under Section 1486 is solely a question of the court’s scope

of review. Aircraft Owners and Pilots Association v. Federal

Aviation Administration, 600 F.2d 965 (D.C. Cir.1979);

Rombough v. Federal Aviation Administration, 594 F.2d 893

(2d Cir. 1979); Starr v. Federal Aviation Administration, 589

F.2d 307 (7th Cir.!978); Tiger International, Inc. v. Civil

Aeronautics Board, 554 F.2d 926 (9th Cir.1977), cert. denied,

434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977). Rather

than considering the issue to be a jurisdictional question, these

courts clearly considered it only to be related to the scope of

judicial review and have resolved it by applying an “arbitrary

and capricious” standard to review of Section 1486 orders

where no formal adjudicatory hearing was required or con-

ducted. 20

In Sima Products Corp. v. McLucas, 612 F.2d 309 (7th

Cir.1980), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64

L.Ed.2d 260 (1980), the Seventh Circuit squarely held [ 1030]

that any issue over the adequacy or completeness of an

administrative record is not a jurisdictional issue. After the

district court dismissed for lack of subject matter jurisdiction a

challenge to an FAA regulation regarding the use of x-ray

devices at airports, the plaintiff argued that the FAA’s action

cculd not be an “order” because the administrative record

contained disputed issues of fact and was inadequate. The

Seventh Circuit rejected this argument, stating:

20 As the court staied in Aircraft Owners and Pilots Assoc.

v. Federal Aviation Administration, 600 F.2d 965, 971 n. 28

(D.C.Cir.1979), there is no real functional difference between

the “substantial evidence” and “arbitrary and capricious” tests,

and thus this distinction is largely only one of semantics.

A-64

This argument misses the point: a factual hearing before

the district court judge is not necessary if judicial review is

based on the agency record. See Investment Company

Institute {Board of Governors of the Federal Reserve

System), supra, 551 F.2d [1270] at 1276 [(1977)], citing

Currie & Goodman, Judicial Review of Federal Adminis-

trative Action: Quest for the Optimum Forum, 75 Colum.

L.Rev. | (1975); Verkuil, Judicial Review of Informal

Rulemaking, 60 Va.L.Rev. 185 (1974). Moreover, where

factfinding within the competence of the agency is re-

quired, section 1486( a) permits the case to be remanded to

the agency for further factual development if the adminis-

trative. record is inadequate for review. Under such

circumstances it makes no difference whether the reviewing

court is a court of appeals or a district court, and ‘there

seems to be no reason to inject another tribunal into the

process.’ Environmental Defense Fund, Inc. v. Hardin, 138

U.S.App.D.C. 391, 396-397, 428 F.2d 1093, 1098-99

(D.C.Cir.1970).

Id. at 313-14.

The Supreme Court has also rejected Suburban O’Hare’s

argument that where one party disputes the adequacy or factual

basis underlying an agency’s administrative record, jurisdiction

properly rests only in the district court to the exclusion of a

statutory grant of exclusive jurisdiction in the Court of Appeals.

In FCC v. ITT World Communications, Inc., __— US.

104 S.Ct. 1936, 80 L.Ed.2d 480 ( 1984), ITT contended, just as

Suburban O’Hare contends here, that jurisdiction was vested in

the district court under the APA to review FCC orders that

were reviewable by statute exclusively in the Court of Appeals

because an insufficient record existed, the contents of which ITT

disputed. The Supreme Court held that the sufficiency of the

administrative record is irrelevant to the jurisdictional issue:

Respondents contend that these provisions [5 U.S.C. §§

703, 704] confer jurisdiction in the present suit because the

record developed upon consideration of the rulemaking

petition by the agency does not enable the Court of

Appeals fairly to evaluate their ultra vires claim. Tf,

A-65

however, the Court of Appeals finds that the administrative

record is inadequate, it may remand to the agency, or in

some circumstances refer the case to a special master.

Indeed, in the present case, the Court of Appeais has

remanded the case to the agency for further proceedings.

We conclude that the District Court lacked jurisdiction

over respondents’ ultra vires claim.

104 S.Ct. at 1940. (Citations omitted; emphasis supplied. )

Similarly, in Harrison v. PPG Industries, Inc., 446 US.

57L, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), involving a

challerge to certain EPA orders in informal adjudications

subject to Court of Appeals jurisdiction under § 307(b)(1) of

the Clean Air Act, the Supreme Court rejected the view that the

district court was the preferable forum because of the avail-

ability of discovery to augment the record. The Court noted:

This is an argument to be addressed to Congress, not to

this Court. It is not our task to determine which would be

the ideal forum for judicial review of the Administrators

decision in this case. Rather, we must determine what

Congress intended when it vested the courts of appeals

with jurisdiction under § 307(b)( 1) to review “any other

final action.” The language of the statute clearly provides

that a decision of the sort at issue here is reviewable in a

court of appeals, and nothing in the legislative [1031]

history points to any different conclusion.

446 US. at 593, 100 S.Ct. at 1898. (Citations omitted; footnote

omitted. )

And, in following the holding of the Supreme Court in

ITT, supra, the District of Columbia Circuit rejected its own

prior precedents, cited here as well by Suburban O’Hare,

Stating, “We find untenable any suggestion that appellate

review of nonfinal agency action may be inadequate due to

Court of Appeals’ inability to take evidence.” Telecommuni-

cations Research and Action Center v. FCC, 750 F.2d 70

(D.C.Cir.1984).

A-66

Surburban O’Hare’s attempt to distinguish these cases on

the basis that they involved orders that resulted from “rulemak-

ing” rather than “informal adjudication” is unavailing. Harri-

son v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64

L.Ed.2d 525 (1980), clearly did involve the review of orders

that can only be properly characterized as “informal adjudica-

tions” as is plainly apparent from the Supreme Court’s descrip-

tion of those orders as “agency action predicated on neither

formal adjudication nor informal rulemaking ... .” 446 U.S. at

593, 100 S.Ct. at 1898. In addition, the authorities heavily

relied upon by Suburban O’Hare in support of their argument

that district court review in the first instance is most proper

whenever informal agency adjudication is at issue, Professors

David Currie and Frank Goodman, emphasize that the dis-

tinctions they had drawn between informal adjudication and

formal rulemaking are not clean cut:

Informal adjudication, we repeat, frequently does generate

an administrative record suitable for the purpose of review.

Moreover, scholars and practioners of administrative law

are coming to recognize a need for greater procedural

regularity in the field of informal agency action. The

reforms they contemplate—including a requirement that

the adminstrator state the facts and reasons upon which he

bases his decision—would, as a byproduct, yield more

adequate records.

Currie and Goodman, Judicial Review of Federal Adminis-

trative Action: Quest for the Optimum Forum, 75 Colum.L.Rev.

1, 57-58 (1975) (footnotes omitted ).

Particularly in this light, it is significant that the adminis-

trative record of the November i4, 1984 FAA decision in this

case filed in this Court on February 22, 1985 is voluminous, it is

well in excess of 10,000 pages, and it contains both hearing

transcripts and public comments. Although this Court makes

no finding as to the adequacy of the record or as to whether the

record does in fact contain certain allegedly missing crucial

“data, calculations and iaethodology” or resolve Suburban

er mn

A-67

O’Hare’s allegations of disputed issues of fact, any challenge to

the adequacy of the record is not jurisdictional. Moreover,

given limited judicial resources, a review of the administrative

record for its adequacy should be accomplished only once, most

properly by the Court of Appeals under Section 1486.

Thus, although some courts once considered judicial re-

view provisions based upon agency “orders” as contemplating

“review of a decision based on evidence presented in a quasi-

judicial proceeding ...” United Gas Pipe Line Co. v. Federal

Power Comm’n., 181 F.2d 796, cert. denied, 340 U.S. 827, 71

S.Ct. 63, 95 L.Ed. 607 ( 1950), that view is no longer valid. See

Investment Company Institute v. Board of Governors, 55\ F.2d

1270, 1276-1277 (D.C.Cir.1977). Review statutes covering

“orders” have been extended now to cover regulations, infor-

mal rulemaking, informal adjudications, and any other decision

capable of review on the basis of an agency record of any kind,

sufficient or insufficient.

Suburban O’Hare devotes much effort to asserting that the

legislative history of the APA indicates that Congress intended

that trial type hearings would be required when a party asserts

that an agency’s decision is based on disputed issues of fact.

Even Suburban O’Hare concedes, however, that its argument is

foreclosed by the Supreme Court’s decision in Citizens to

Preserve [1032] Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct.

814, 28 L.Ed.2d 136 (1971).2' That identical suggestion was

strongly rejected by the District of Columbia Circuit in The

Izaak Walton League of America v. Marsh, 655 F.2d 346, 362

and n. 38 (D.C. Cir.1981). This Court rejects Suburban

O’Hare’s argument as well because it suggents too much: in

essence, it inevitably leads to the conclusion that any time a

party merely alleges that the agency’s administrative record is

21 Nonetheless, it proceeds to suggest that this Court

should overrule the Overton Park decision of the Supreme

Court because it is allegedly unconstitutional. Needless to say,

this Court politely declines such a bold invitation.

A-68

insufficient, or that it is based on disputed fact issues, a special

judicial review statute that vests exclusive jurisdiction in the

Court of Appeals is immediately set aside in favor of jurisdic-

tion in the district court.

[11] In the aftermath of the Supreme Court’s decision in

FCC v. ITT Industries, Inc., it is clear that where an agency

conducts inadequate fact finding procedures resulting in an

administrative record based on substantial disputed issues of

fact, the appropriate remedy is not de novo fact finding in the

district court, but remand by the Court of Appeals to the

agency, where the agency can provide adequate additional fact

finding under its statutory mandate. See Vermont Yankee vy.

Natural Resources Defense Council, 435 U.S. 519, 98 S.Ct.

1197, 5S L.Ed.2d 460 (1978). Another alternative, suggested

by the Supreme Court in FCC v. ITT World Communications,

Inc., supra 104 §.Ct. at 1940, is the appointment of a special

master by the Court of Appeals. See 28 U.S.C. § 2347(b)(3).

In any event, where Congress has selected and mandated

jurisdiction in the Court of Appeals, the appropriate forum for

judicial review of a challenged agency decision cannot shift

from the Court of Appeals to the district court depending upon

the adequacy or inadequacy of the administrative record.

CONCLUSION

For the reasons set forth in this Opinion, this court hoids

that jurisdiction to review the November 14, 1984 FAA deci-

sion vests exclusively in the Court of Appeals under 49 U.S.C.

§ 1486 in the first instance and that this Court lacks jurisdiction.

Accordingly, the complaint is dismissed for lack of subject

matter jurisdiction under Rule 12(b)(1) of the Federal Rules

of Civil Procedure.

A-69

US DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

NOV. 14, 1984

Mr. Thomas Kapsalis

Commissioner

Department of Aviation

City of Chicago

City Hall, Room 1111

Chicago, IL 60602

Dear Mr. Kapsalis:

Chicago O’Hare International Airport

Airport Layout Plan Approval

This letter approves the Airport Layout Plan (ALP) dated

March 1984 for Chicago O’Hare International Airport, sub-

mitted by your letter dated April 9, 1984. Two copies of the

ALP are enclosed. The airport development plan approval is

based upon recognition of and adherence to the following:

1. Approval of the ALP is not to be considered as a

determination of necessity or as a commitment of Federal

funding for accomplishment of the project development.

Inclusion of the proposed development signifies a con-

currence for planning purposes based on review of con-

formance with current standards for safety, utility, and

efficiency. Actual facility development wiil be governed by

adherence to development standards applicable at the time

the development is undertaken.

2. A Final Environmental Impact Statement ( FEIS)

was approved May 31, 1984. Mitigation and other condi-

tions established in the FEIS, this ALP approval letter, and

other related Federal documents, shall be carried out when

the development plan is implemented. They are listed in

A-70

the enclosed Summary of Environmental Mitigation and

Other Provisions, which are a condition of this ALP

approval.

3. Airport Improvement Program requirements stipu-

late that all development programs be reasonably con-

sistent with the plans of planning agencies for the devel-

opment of the area in which the airport is located, that fair

consideration has been given to the interest of communities

in or near the airport, and that development programs

provide for the protection and enhancement of the quality

of the environment.

4. Reviews of the landing area development proposed

on the plan were conducted in accordance with Parts 77,

152 and 157 of the Federai Aviation Regulations. Based

on consideration of safe and efficient use of airspace, the

FAA offers no objection to the proposed ultimate airspace

utilization as depicted on the development plan, subject to

compliance with the enclosed Airspace Review Comments.

The development plan will be afforded the status of a plan

on file for the purpose of Federal Aviation Regulation Part

77 obstruction evaluations and Part 152 airport aid pro-

gram.

This review did not include an evaluation of actua! con-

struction for which separate notice is required under Part 77 of

the Federal Aviation Regulations. Prior to constructing any

facility, structure or other items on the airport, notice consistent

with requirements of Part 77 must be filed and evaluated (FAA

Form 7460-1, or Preapplication for Federal Assistance ).

If action or construction is planned without Federal aid

which will change the status or geometrics of runways, taxi-

ways, aprons or other operating areas of the airport, notice

must be filed in accordance with Part 157 (FAA Form 7480-1 )

A-71

We trust the foregoing provides a reasonable explanation

of the conditions inherent in our approval. If, however, you

desire further clarification, please contact this office.

Sincerely,

/s/ JOHN GUIDOTTI

Supervisor, Illinois Section

Chicago Airports District Office

Enclosures

A-73

A-72

TABLE OF CONTENTS

SECTION TITLE PAGE

i a l

II. Introduction and Background.............ccccecesceeeees l

ERE OR ONC a ee 2

BU. Oey OIE ci bbiccsscnsncdtttictidedcsiicinasididis 3

V. Alternatives to Proposed Development Program 4

VI. Proposed Development ..................cccccsccecccesceceeee 5

VEE. ABBCICD EAVWORMORE .......csciccccccccceccccoscsorsccceoseess 8

VIII. Environmental Considerations ...............c..ccccccce00- 9

Fae. SI III ondocinccscchigacnincbnsnmsnstonicinnsahietnanns 16

i ohare nO OTR ISU ETNA REN i8

Fc aes 19

RECORD OF DECISION

AIRPORT LAYOUT PLAN

CHICAGO O’HARE INTERNATIONAL AIRPORT

fact winise ert pie irwed ai é iy

A-74

RECORD OF DECISION

AIRPORT LAYOUT PLAN

CHICAGO O’HARE INTERNATIONAL AIRPORT

CHICAGO, ILLINOIS

1. Proposed Action

The proposed Federal action consists of the approval of an

Airport Layout Plan submitted by the City of Chicago, Depart-

ment of Aviation, for Chicago O’Hare International Airport.

11. Introduction and Background

Chicago O’Hare International Airport is the world’s busiest

airport and a vital part of the nation’s transportation system as

well as of the Chicago Metropolitan Area.

The City of Chicago conducted a Master Plan Study for

O’Hare Airport that was financed in part with Federal funds in

four (4) separate grants issued under the Airport and Airway

Development Act of 1970 (P.L. 91-258) and its amendments.

As part of that Study, an Airport Layout Plan was developed

which shows the existing and proposed facilities that the City of

Chicago considers to be necessary for the operation and

continued development of the airport. Also, as a part of that

Study, an Environmental Assessment was prepared for the

proposed development. :

The proposed development plan originally was separated

into three phases. Phase | encompassed the initial devel-

opment that was to begin in the 1982-83 time period, Phase II

included development occurring from 1983 to 1987, and Phase

III included development to be done after 1987. The Phase I

development was assessed separately and a Finding of No

Significant Impact was approved July 22, 1982, for the Federal

action of approving an Interim Airport Layout Plan. The

Interim Airport Layout Plan was approved July 30, 1982. The

major Phase I development items are: new terminal and

A-75

concourse for Delta Airlines, bay expansion in Terminals 2 and

3, relocated flight kitchens and airport maintenance facility,

and an inter-terminal people mover system. Phases II and III

were subsequently combined into a single phase. The

Environmental Assessment that was prepared covered the

cumulative impacts associated with the Phase I development

and the combined Phases II and Iil.

On April 9, 1984, the City of Chicago submitted its

completed Airport Layout Plan to the Federal Aviation Admin-

istration (FAA) for approval. The FAA prepared a Final

Environmental Impact Statement (FEIS) for the proposed

development and approved it on May 31, 1984.

An aeronautical study of the Airport Layout Plan was

conducted by the FAA, including circularization to the public

from May 15, 1984 to June 15, 1984. No objections were

received as a result of the circular. Based on that study, the

Airport Layout Plan was determined to be acceptable from an

airspace utilization standpoint.

Approval of the Airport Layout Plan does not represent

approval as far as necessity for the development is concerned

nor is it a commitment of Federal funds for any future

development. It signifies a concurrence for planning purposes

based on review of conformance with current standards for

safety, utility, and efficiency.

Ill. Issue

The question of whether O’Hare Airport needs to expand

and improve its facilities has been under study for some time. It

is a question which involves matters of public policy in terms of

social, economic, and environmental issues. It is a question on

which there has been some disagreement expressed, both

substantively and in terms of the weight which should be given

to each of these factors.

A-76

The issue is whether to approve the Airport Layout Plan

submitted by the City of Chicago. Approval of it would allow

the City to proceed with implementing the proposed devel-

opment at the airport and to request Federal funds for eligible

items of development. Not approving it would prevent the City

from proceeding with the development in a timely manner.

Generally, Section 2(b)(1) of the Department of Trans-

portation Act of 1966, charges the Secretary of Transportation

with the responsibility “to assure the coordinated, effective

administration of the transportation programs of the Federal

Government, to facilitate the development and improvement of

coordinated transportation service... and to provide general

leadership in the identification and solution of transportation

problems.” More specifically, under the Federal Aviation Act of

1958, as amended by the Department of Transportation Act of

1966 which transferred aviation policy function and duties to

the Secretary, the Secretary is responsible for the “promotion,

encouragement, and development of civil aeronautics” and

fostering “the development of civil aeronautics and air com-

merce in the United States”, and giving “full consideration to

the requirements. .. of commercial and general aviation”.

In the Airport and Airway Improvement Act of 1982,

Congress declared that “the continuation of airport and airway

improvement programs and more effective management and

utilization of the Nation’s airport and airway system are

required to meet current and projected growth of aviation and

the requirements of interstate commerce, the Postal Service,

and the national defense.”

IV. Policy Consideraticns

All grant agreements with the City of Chicago for O’Hare

Airport under the Airport and Airway Development Act of

1970 and the Airport and Airway Improvement Act of 1982

include the following assurance by the City of Chicago:

De NOR TE Re TT ee aA ee

ee

Pe peer Oe OL | Pee eee ae rn oe ee ey

ee 7,

A-77

Airport Layout Plan. It will keep up to date at all times an

airport layout plan of the airport showing (1) boundaries

of the airport and all proposed additions thereto, together

with the boundaries of all offsite areas owned or controlled

by the sponsor for airport purposes and proposed additions

thereto; (2) the location and nature of all existing and

proposed airport facilities and structures (such as runways,

taxiways, aprons, terminal buildings, hangars and roads),

including all proposed extensions and reductions of exist-

ing airport facilities; and (3) the location of all existing

and proposed nonaviation areas and of all existing im-

provements thereon. Such airport layout plan and each

amendment, revision, or modification thereof, shall be

subject to the approval of the Secretary which approval

shall be evidenced by the signature of a duly authorized

representative of the Secretary on the face of the airport

layout plan. The sponsor will not make or permit any

changes or alterations in the airport or in any of its

facilities other than in conformity with the airport layout

plan as so approved by the Secretary if such changes or

alterations might adversely affect the safety, utility, or

efficiency of the airport.

FAA Order 5050.4, Airport Environmental Handbook,

prescribes that approval of an airport layout plan is a Federal

action subject to the National Environmental Policy Act of

1969 for which an environmental assessment must be prepared

and processed.

;*,. ite et te pe ab Mem ley

In the Consent Decree entered October 14, 1982 in State of

i Illinois v. Butterfield, et al, the City of Chicago agreed to

present the entire Master Plan development for O’Hare Airport

to the FAA as a single, comprehensive submission and the FAA

agreed to process an EIS with respect to the submitted devel-

opment.

A-78

The FEIS assessed the overall development program and

the cumulative impacts associated with it. In this regard, it is

the policy of the Department of Transportation to reduce

adverse impacts on the quality of the human environment

which result from transportation decisions. This is consistent

with our responsibilities under the National Enviromental

Policy Act of 1969 “to use all practicable means and measures,

including financial and technical assistance, in a manner calcu-

lated to foster and promote the general welfare, to create and

maintain conditions under which man and nature can exist in

productive harmony, and fulfill social, economic, and other

requirements of present and future generations of Americans”.

Section 1505.2(b) of the Regulations for Implementing the

Procedural Provisions of the National Environmental , Policy

Act issued by the Council on Environmental Quality states that

a record of decision shall identify all alternatives considered by

the agency in reaching its decision. The proposed development,

as depicted on the ALP, includes a great many interrelated

projects. Due to the complex and interrelated nature of the

development projects, this Record of Decision specifically

identifies all alternatives to the development as a whole.

.owever, rather than identifying each of the alternatives to

specific projects within the overall development, this Record of

Decision hereby specifically incorporates by reference each of

those alternatives considered in the FEIS into this document.

Each of those alternatives has been fully considered even

though not individually identified. It is believed that this

method is in keepig with the requirements of CEQ 1505.2(b) as

well as Section 1505.2 which provides that the Record of

Decision shall be concise.

V. Alternatives to Proposed Development Program

The FEIS considered the following alternatives to the

proposed development program:

A-79

a. Alternative Modes of Travel. Alternative modes

such as rail, bus, and automobile cannot satisfy the needs

of the majority of travelers who take trips of more than 250

miles from the Chicago area and are not acceptable

substitutes for efficiency provided by air travel.

b. Utilization of Other Airports. The only other

airport that currently provides commercial air carrier ser-

vice to the Chicago Metropolitan Area is Midway Airport

which is being improved to accommodate a limited in-

crease in service to selected cities, but cannot be adequately

expanded to handle the increased demand and needs of

the Chicago Metropolitan Area. The Greater Rockford

Airport and General Mitchell Field in Milwaukee are too

distant for most Chicago area travelers and are not suitable

alternatives.

c. Development of New Airport. Development of a

new major air carrier airport was considered several times

in the past, as well as in the recently completed Master

Plan Sutdy. This alternative was not selected because of

difficulties in finding a suitable site, the extremely high

costs of acquisition and development of a new site, and the

long lead time to make it operational. Development of

another air carrier airport to serve the Chicago Metropoli-

tan Area will be studied again as part of a State System

Plan to be prepared by the Illinois Department of Trans-

portation under a series of grants to be funded by the

FAA’s Airport Improvement Program. The initial grant

was issued in September 1984.

d. Alternative Levels of Aviation Demand. The

expansion plans for O’Hare Airport were prepared after a

selection was made by the City of Chicago from six (6)

demand alternatives which ~re discussed in the FEIS.

They considered constrained and unconstrained levels of

aviation demand, and included alternative roles to be

played by O’Hare and Midway Airports. The City of

VL

A-80

Chicago decided to pursue a constrained development for

O’Hare Airport that would limit the future growth to that

which could be handled by the existing runways and

available land and by assuming improved air traffic contro!

capabilities to accommodate increased operations.

e. Do Nothing. Under this alternative, there would be

no additional or expanded facilities at O’Hare Airport.

This alternative was rejected because it would result in a

reduction of effective gate capacity due to use of more

wide-body aircraft and an increase in aircraft operational

delays. Also, it would fail to correct existing deficiencies in

congestion of aircraft, automobiles, and passengers. In

addition, under this alternative, which the FEIS refers to as

“Without Project”, the future noise and air pollution would

be greater than the “With Project”.

Proposed Development

The environmentally preferable alternative is the proposed

overall development program as shown on the ALP and as

assessed in the FEIS. The program is comprised of many

individual projects, each of which had alternatives. As men-

tioned above under Policy Considerations, the projects and

alternatives were too numerous to be included herein. All of

them, which are incorporated herein by reference were consid-

ered in this Record of Decision. The selected major on-airport

projects are described below:

a. Central Core Facility. The alternative selected for

domestic air carrier terminal and gate facilities was to

develop them in the existing central core area of the

airport. It will include constructing new Terminal | and

concourse, apron expansion, concourse extensions, taxiway

relocations, service road relocation, commuter concourse

relocation, terminal access road modifications, and taxicab

staging area relocation. This concept will keep the domes-

tic carrier facilities together and permit maximum use of

the central core area.

ee

A-81

b. International Terminal Facility. The existing

inadequate international terminal will be displaced by the

new Terminal | and concourse mentioned above. Facil-

ities to accommodate international carriers and travelers

must be located on the airport. The existing cargo area

was the selected alternative for the site of the new inter-

national carrier facility. In addition to a terminal building,

it will include aircraft parking apron, taxiway connectors,

auto parking, and access road. This location will facilitate

passenger connections with the domestic carriers.

c. General Aviation Facility. The existing general

aviation facility will also be displaced by the new Terminal

| and concourse. The alternative selected was to develop a

new general aviation facility east of the relocated commu-

ter facility, which will be east of the new international

terminal complex.

d. Cargo Complex. The need for new and expanded

cargo facilities will be met by the selected alternative of

developing a cargo complex in the southwest part of the

airport. It will consist of cargo/freight forwarding build-

ings, aircraft parking ramps, taxiway connectors, and

access roadways for connectors to the central core and to

Irving Park Road.

e. People-Mover System. Completion of the people-

mover system covered in the Phase I Environmental

Assessment was the alternative selected to move the pas-

sengers between the various terminals as well as the

remote parking lots. The system will consist of an inter-

terminal shuttle segment and links to future terminais and

remote parking lots.

f. Runways and Taxiways.

(1) Runway 9L/27R extension and associated

taxiways—To provide additional flexibility in oper-

A-82

ational capability of the airfield, the alternative se-

lected was to add 550 feet at the east end of Runway

9L/27R and 790 feet at the west end.

(2) Partial parallel and exit taxiways for

Runways 9R/27L and 14R/32L—To provide aircraft

access to the future cargo complex, the alternative

selected was to add partial parallel taxiways on the

cargo area side of Runways 9R/27L and 14R/32L

and exit taxiways for Runways 9R/27L and !4R/32L.

(3) Runway I4R/32L extension—To reduce

wake turbulence interference with aircraft departing

from Runway 27L, the alternative selected was to

extend Runway 14R/32L by 1400 feet to the south-

east. This would allow heavy aircraft landing on

Runway 32L to touch down before the intersection

with Runway 9R/27L.

(4) Runway 14R/32L partial dual parallel taxi-

way—To provide additional flexibility for the ground

movement of aircraft, the alternative selected was a

new partial parallel taxiway east of the existing paral-

lel taxiway for Runway 14R/32L.

(5) Taxiway connection to Runways 32L and

4R—To facilitate the movement of aircraft to and

from the new cargo complex, the alternative selected

was to construct taxiways between the cargo complex

and the southeast end of Runway 14R/32L and the

hold pad at the southwest end of the parallel taxiway

for Runway 4R/22L.

(6) Aircraft hold pads—Other development will

cause the displacement of the existing penalty box

alongside the parallel taxiway for Runway 14R/32L

and the hold pad at the southeast end of Runway

14L/32R. The alternative selected to replace them

A-83

was to construct two new hold pads, which are needed

to hold arriving aircraft that have to wait for a

terminal gate to become avai able.

(7) Additional taxiway bridge—A second tax-

iway access is needed between the eastern portions of

the terminal complex and the east end of the north

airfield side. The alternative selected was to construct

a second taxiway bridge over the airport entrance

road.

g. Ground Access.

(1) Northwest Tollway Access—The alternative

selected to relieve traffic congestion on the primary

airport entrance road was to provide the Northwest

Tollway with a new eastbound exit and a new west-

bound entrance at the north side of the airport.

(2) Old Mannheim Road—To handle the in-

creased traffic due to the proposed Northwest Tollway

access, the alternative selected was to upgrade Old

Mannheim Road.

(3) Zemke Road—To facilitate traffic flow be-

tween Mannheim Road and Old Mannheim Road, the

alternative selected was to relocate Zemke Road,

which currently connects them, to intersect the two

roads south of the existing intersections.

(4) Southeast Service Site Access and Service

Road— Access is needed between the new Southeast

Service Site and the main airport service road for

vehicles traveling to and from the flight kitchens and

airport maintenance complex. The alternative se-

lected was to provide an on-airport road connection to

the main service road and an access from off-airport.

(5) Western Access—To provide access to the

airport from the west, the alternative selected was a

A-84

roadway connection at York Road plus a remote

parking lot and a people-mover system. The access is

conceptual only at this time and will be modified to

show planned alignments, Thorndale Avenue exten-

sion, etc., when those plans are prepared in the future.

The Illinois Department of Transportation indicates

an Environmenta! Impact Statement will be prepared

prior to selection of the final alignment. it will

consider the impacts associated with airport related

traffic for each alignment.

h. Parking Facilities.

(1) East Remote Site—A new parking lot on the

east and west sides of old Mannheim Road was the

alternative selected to provide additional long-term

parking. It will be convenient to the new Northwest

Tollway access and to the new people-mover system.

(2) Rent-A-Car—The alternative selected for

additional rent-a-car facilities was to expand the exist-

ing rent-a-car parking and staging areas.

(3) North Remote Parking—To provide addi-

tional long-term parking in the post-1990 time period,

the alternative selected was to construct a parking lot

in the northern portion of the airport adjacent to the

proposed Northwest Tollway access.

i. U. S. Post Office. The new International Terminal

Facility will cause displacement of the U.S. Post Office

facility. The alternative selected was to build a new facility

at a site south of the proposed new cargo complex.

j. Heating and Refrigeration Plant. To satisfy the

increased capacity requirement for heating and cooling the

central core facilities, the alternative selected was to ex-

pand the existing Heating and Refrigeration Plant.

ated, a he ak

A-85

k. Crash, Fire and Rescue (CFR) Facility. Reloca-

tion of the inner/outer taxiway system will cause dis-

placement of the main CFR station. The alternative

selected was to build a new station in the northeast corner

of the cargo complex.

|. Military Facilities. A proposed land exchange

between the City of Chicago and U’S. Air Force to provide

land for a remote parking lot will involve replacement of

some military facilities. The alternative selected was to

replace the facilities on land at the airport that is already

owned by the U. S. Air Force and land that will be deeded

to it by the City of Chicago.

VIL. Affected Environment

O’Hare Airp

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Appendix — Suburban O'Hare Commission v. Dole · 479 U.S. 847 | Frix