Petition for Writ of Certiorari — Custer County Action Ass'n v. Garvey

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

(\)) Seprene Court. us.

01 652 OCT 17 2001

In The

Supreme Court of the United States

CUSTER COUNTY ACTION ASSOCIATION; NATIONAL

AIRSPACE COALITION; THE WILDERNESS SOCIETY;

CUSTER COUNTY AIRPORT AUTHORITY; THE BOARD

OF COUNTY COMMISSIONERS OF CUSTER COUNTY,

COLORADO; LA VETA PEACE OF AIR ALLIANCE;

HUERFANO VALLEY CITIZENS ALLIANCE;

WOLF SPRINGS RANCHES, INC.; AND

CUSTER COUNTY BISON,

Petitioners,

JANE F. GARVEY, AS ADMINISTRATOR OF THE

FEDERAL AVIATION ADMINISTRATION, AND

UNITED STATES AIR FORCE MAJOR GENERAL

PAUL A. WEAVER, JR., AS DIRECTOR OF THE

AIR NATIONAL GUARD,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

BriAN B. O’NEILL

Counsel of Record for Petitioners

FagGRE & Benson LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402-3901

Telephone: (612) 766-7000

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Tenth Circuit properly set aside the Fed-

eral Aviation Act provisioris for judicial review of Federal

Aviation Administration (“FAA”) decisions allocating

navigable airspace for military use on the grounds that

the political question doctrine precludes the federal

courts from “second-guessing” FAA decisions.

II. Whether the FAA and the Tenth Circuit can exempt

the FAA from the Federal Aviation Act requirement that

the FAA make specific, written and reasonable findings

that airspace is necessary in the interest of national

defense before allocating that airspace for military use.

III. Whether the National Environmental Policy Act

required the FAA and the Air National Guard (“ANG”) to

broaden the scope of the Environmental Impact State-

ment for the Colorado Airspace Initiative (“CAI”) to con-

sider the environmental impact of the nationwide

proliferation of military airspace.

IV. Whether the Third Amendment prohibits the mili-

tary from occupying non-navigable airspace over private

property during peacetime without the owner’s consent.

nn aN

Sanna

LIST OF PARTIES AND CORPORATE DISCLOSURE

Petitioners are Custer County Action Association;

National Airspace Coalition; The Wilderness Society;

Custer County Airport Authority; The Board of County

Commissioners of Custer County, Colorado; La Veta

Peace of Air Alliance; Huerfano Valley Citizens Alliance;

Wolf Springs Ranches, Inc.; and Custer County Bison.

None of the Petitioners have parent companies and no

publicly held company has any financial interest in any of

the Petitioners.

Respondents are Jane F. Garvey, as Administrator of

the Federal Aviation Administration, and United States

Air Force Major General Paul A. Weaver, Jr., as Director

of the Air National Guard, and both were sued in their

official capacities only.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .......---- i

LIST OF PARTIES AND CORPORATE DISCLOSURE ii

TABLE OF CONTENTS .....--ceeeeeeeeeeeeeeeeeees iii

TABLE OF AUTHORITIES ........000seeeeeeeeeeees vi

OPINIONS AND ORDERS BELOW ......----+++++: 1

JURISDICTION .........0cseeeeeeee eee eeee ee ee eee 1

CONSTITUTIONAL, STATUTORY AND REGULA-

TORY PROVISIONS INVOLVED ......---++05509 1

STATEMENT OF THE CASE.....--.--+00eeee eee 2

REASONS FOR GRANTING THE WRIT .....------ 6

I. WHETHER FAA DECISIONS REGARDING

THE ALLOCATION OF NAVIGABLE AIR-

SPACE FOR MILITARY USE ARE IMMUNE

FROM JUDICIAL REVIEW IS AN IMPOR-

TANT FEDERAL QUESTION THAT SHOULD

BE SETTLED BY THIS COURT .......------- 8

A. The Tenth Circuit Improperly Expanded

The Political Question Doctrine When It

Refused To Review The FAA’s Decision To

Establish The Colorado Airspace Initiative

Pursuant To 49 U.S.C. § 46110 And 5

U.S.C. § 706 On The Grounds That The

FAA’s Decision Was Akin To Military

B. The Tenth Circuit’s Refusal To Review FAA

Decisions Allocating Military Airspace

Allows Arbitrary Decisions Unsupported By

Substantial Evidence To Stand........----- 12

ii em |

TABLE OF CONTENTS - Continued

Page

II. WHETHER FEDERAL COURTS CAN EXEMPT

THE FAA FROM THE FEDERAL AVIATION

ACT REQUIREMENT THAT THE FAA MAKE

A SPECIFIC FINDING OF NECESSITY

BEFORE IT ALLOCATES AIRSPACE FOR

MILITARY USE IS AN IMPORTANT FED-

ERAL QUESTION THAT SHOULD BE SET-

Bae DE TEES COIR oc caeectctncicsaavncsr 13

A. The Federal Aviation Act Provides That

The FAA Cannot Establish Any Airspace

For Military Use Without An Initial Deter-

mination That The Airspace In Question Is

Necessary In The Interest Of National

CDs oo oo. 0 6 ccdnveetaeeaid ees astivenrs 13

1. The FAA Cannot Exempt Its Own

Actions From A Congressional Man-

date Through The Use Of Administra-

tive Classifications Of Special Use

Ferrer TET oe ET Te Core 15

2. Federal Courts Cannot Exempt The

FAA From The Federal Aviation Act

Requirement That It Make A Specific

Written Finding That The Proposed

Military Airspace Is Necessary In The

Interest Of National Defense......... 18

B. The Tenth Circuit’s Holding That The FAA

Did Not Have To Make An Objectively

Reasonable Specific Finding Of Necessity

Conflicts With Prior Decisions Of This

UNG ons so bas ced Re RR Ra Oe APA pees Knees 19

TABLE OF CONTENTS - Continued

Page

III. WHETHER THE NATIONAL ENVIRONMEN-

TAL POLICY ACT (“NEPA”) REQUIRED THE

FAA AND THE ANG TO CONSIDER THE

ENVIRONMENTAL IMPACT OF THE

NATIONWIDE PROLIFERATION OF MILI-

TARY AIRSPACE IS AN IMPORTANT FED-

ERAL QUESTION THAT SHOULD BE

SETTLED BY THIS COURT.........----+++++ 22

IV. WHETHER THE THIRD AMENDMENT PRO-

HIBITS THE MILITARY FROM OCCUPYING

NON-NAVIGABLE AIRSPACE OVER PRI-

VATE PROPERTY DURING PEACETIME

WITHOUT THE OWNER’S CONSENT IS AN

IMPORTANT QUESTION OF CONSTITU-

TIONAL LAW... ..ccccccccccccccccccceeseoes 26

COPMCTAIOIOIN 0 cocci pcccccnctpctscvoventaracecsees 30

TABLE OF AUTHORITIES

FEDERAL CASES _

Arnhold v. United States, No. 88-0934C(3), 1989 U.S.

Dist. LEXIS 17904 (E.D. Mo. June 13, 1989) ....... 30

Brown v. United States, 73 F.3d 1100 (Fed. Cir. 1996) .... 27

Chevron, U.S.A., Inc. v. Natural Resources Defense

Connect; inc., 467 US. Gar CBG G sc ice i ehesaekecss 16

Citizens to Preserve Overton Park, Inc. tv. Volpe, 401

U.S. 402 (1971), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977)...... 15, 20, 21

Custer County Action Ass'n v. Garvey, 256 F.3d 1024

CRUE Sah OSE i oes ices Poevaceweestassdareesedss 1

D & F Afonso Realty Trust v. Garvey, 216 F.3d 1191

eae sR rE er re eae ee ere 21

Dunlop v. Bachowski, 421 U.S. 560 (1975) overruled

in part on other grounds, Local No. 82 v. Crowley,

ET) SR ie emery ie 9

Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982)..... 27, 29

Florida v. Riley, 488 U.S. 445 (1989)............... Per

Franklin v. Massachusetts, 505 U.S. 788 (1992) ........ 18

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ............ 22

Kyllo v. United States, 121 S. Ct. 2038 (2001)......... 29

Laird @ Tatum, 000 US. 1. (1998)... .ccccnccssss sees: 27

Morongo Band of Mission Indians v. FAA, 161 F.3d

| Uk eS Re aire ae ee 25, 26

NORML v. Mullen, 608 F. Supp. 945 (N.D. Cal.

RE re re ran ern te eee ee i eae er eae 29

vii

TABLE OF AUTHORITIES - Continued

Page

National Parks & Conservation Ass'n v. FAA, 998

F.2d 1523 (10th Cir. 1993)........-seeeee eee eeeeeees 5

National Wildlife Fed’n v. Appalachian Regional -

Comm'n, 677 F.2d 883 (D.C. Cir. 1981).....-.--. 23, 25

Park N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

189 (1985) .......---eeeeeee esc cnepiaeana dawienans 15

Southern Cal. Aerial Advertisers’ Ass n 0. FAA, 881 ;

F.2d 672 (9th Cir. 1989).....-..ee reer cere eereeeee 18

United States v. Morton Salt Co., 338 U.S. 632 (1950) .... 12

United States v. Causby, 328 U.S. 256 (1946)......---- 27

U.S. CoNsTITUTION AND FEDERAL STATUTES

U.S. Const. amend. IIIT ......---.+- seer eeeeeee 1, 26, 29

5 US.C. § 553(a)(1)... eee eee eee e eee e trees 2, 11

5 US.C. § 706......ecececcccrecesccccceccececes 2, 8, 9

5 U.S.C. § 706(2)(A) «--- eee eee eee e eee etree 12, 21

2B U-S.C. § 1254(1) ....-ceeecccccrencecerccererercers 1

A2 US.C. § 4332...... 0c eee e cece ee eceecerceccecces 2, 22

49 U.S.C. § 106(c)-(d) .. 1... eee rece e reer e renee eees : am

49 U:S.C. § 40102(a)(30)...... eee reer rere eerie 2, 28

49 U.S.C. § 40103(b) ....-- eee e eee eee eee 2, 6, 8, 28

49 U.S.C. § 40103(b)(3)...--- eee eee eee rere rere passim

49 U.S.C. § 40103(b)(4).. 0-0. ee eee rere rere reece 6, 11

49 US.C. § 44103(b)(2)....-.eceeeereeee eee eee eees 2,9

Vili

TABLE OF AUTHORITIES - Continued

Page

GP UBAK SG GRR ore oes envsicisecss eo 16, 14 1

oe Cae FO rrr errr rrr ee 2 3, @, 33, 12

OURE. § MUI 6 oGiciiic inc Be |e

LEGISLATIVE History

Statements of Dr. Leslie A. Bryan and A.B.

McMullen: The Federal Aviation Act: Hearing on

H.R. 12616 Before the House Subcomm. On Trans-

portation and Commerce of the Comm. On Inter-

state and Foreign Commerce, 85th Cong. 167-68,

PE CA a 10s bad Oa an pia en rae ck 0 0F bse ee 10

H.R. Conference Report No. 2556 (1958), reprinted

i BS Fad am Se rere r eerie Peer 10

FEDERAL REGULATIONS

56 ER Ph ea eae Ve S ek cds ccc rede senteei ens 2

Be Re ie Po ob ns cee dvees Veterizibents 2, 28

SP Ge He RO hr oa cb evinikednveds tiiecseeer ese 22

GD CAE. & TaD cn PrsvcvsweceedceseusieVeeas’ 2

GS CER: © SCRE) oo oc vcs cee cind inde 23, 24

PAA: Code FOGG GED. <ssccccicccevcesuvesys 2 13,44 97

PR: GORE FOUTS ec koi 04 dnd des FA eek ie 2, 14

OTHER

56 Fed. Res. SOPGS Guly 9, TOS}. ccc ecccccccccee 4

66 Pod. Mam, SOZE Chet 7) TIN caste tac ccvcvccsiss 1

PETITION FOR WRIT OF CERTIORARI

Petitioners Custer County Action Association, et al.,

respectfully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Tenth Circuit, entered in Custer County

Action Ass’n v. Garvey on July 19, 2001.

OPINIONS AND ORDERS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit is reported at Custer County Action Ass'n

v. Garvey, 256 F.3d 1024 (10th Cir. 2001), and is reprinted

in the appendix at page A-1. The FAA Order reviewed by

the Tenth Circuit was the Record of Decision (“ROD”)

issued by the FAA on October 1, 1999. The ROD is

reported at 64 Fed. Reg. 54721 (Oct. 7, 1999), and is

reprinted at A-41. The Tenth Circuit also reviewed the

Record of Decision of the Air National Guard, dated

October 28, 1997, which did not become final agency

action until it was approved by the FAA in the ROD. The

ANG’s Record of Decision is reprinted at A-59.

JURISDICTION

On July 19, 2001, the Tenth Circuit affirmed the FAA's

ROD (including the Air National Guard’s Record of Deci-

sion) establishing the Colorado Airspace Initiative

(“CAI”). This Court has jurisdiction to review the deci-

sion of the Tenth Circuit pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS INVOLVED

The Third Amendment to the United States Constitution,

reprinted at A-92.

The Federal Aviation Act, 49 U.S.C. §§ 106(c)-(d),

40102(a)(30), 40103(b), 44103(b)(2), 46105(b), 46110(a)-(c),

reprinted at A-92-97.

The Administrative Procedure Act, 5 U.S.C. §§ 553(a)(1),

706: reprinted at A-97-98.

The National Environmental Protection Act, 42 U.S.C.

§ 4332, reprinted at A-98.

14 C.FR. §§ 73.3(a), 91.119(a)-(c), reprinted at A-102.

40 C.F.R. §§ 1500.1, 1508.25(a)(1), reprinted at A-100-01.

FAA Order 7400.2D § 27-3, reprinted at A-104.

FAA Order 7610.4] § 9-1-4, reprinted at A-125.

STATEMENT OF THE CASE —

The National Airspace System administered by the

FAA includes airspace that has been set aside for use by

military aircraft. So far, forty percent (40%) of the nation’s

airspace has been allocated to the military as Special Use

Airspace.’ As a result, one million square miles of prop-

erty in the United States are overflown regularly by mili-

tary aircraft conducting combat training exercises. See

Map at A-168 (depicting updated information originally

found in Long Range Airspace Planning (1992), A-169).

Proposals for further military airspace expansion, are

pending throughout the United States.

Special Use Airspace includes Military Operations

Areas (“MOAs”), Military Training Routes (“MTRs”) and

Restricted Areas (“RAs”). An MOA is an airspace of

defined vertical and lateral boundaries in which aircraft

1 Special Use Airspace consists of airspace of defined

dimensions identified by an area on the surface of the earth

wherein activities must be confined because of their nature, or

wherein limitations are imposed upon aircraft operations that

are not a part of those activities, or both. 14 C.F.R. § 73.3(a).

can perform military training activities separated from

instrument flight rules traffic, including such practice

activities as aircraft intercepts, turning and evasive

maneuvers, and air combat maneuvers. An MIR is a

military highway used for low-altitude military opera-

tions at high airspeeds. RAs are established for many

purposes. With respect to military training, RAs are usu-

ally reserved for training involving either grou id- or air-

based weapons and all civilian aircraft is restricted to

ensure the safety of aircraft not participating in the mili-

tary exercise.

Military aircraft have been using the airspace above

Colorado for training exercises, flights and bombing runs

for over 25 years. Units which train in Colorado airspace

include, among others, the 140th Tactical Fighter Wing of

the Colorado Air National Guard; the 302nd Airlift Wing

from Peterson Air Force Base, Colorado; the 150th Fighter

Wing from Kirkland Air Force Base, New Mexico; and

U.S. Army Helicopters from Fort Carson. Use of some key

MOAs and MTRs has increased four-fold since Environ-

mental Assessments were prepared for those areas in

1976 and 1977. Another key area, the Pinon Canyon

MOA, was established with no environmental review at

all. Exacerbating the environmental impact is the fact that

ANG and other military pilots consistently violate the

boundaries and altitude requirements established for

these MOAs and MITRs.

The origins of the CAI can be traced to 1991, when

the ANG proposed a new military airspace scheme

referred to as the Redeye Complex. Public opposition to

the Redeye Complex forced the ANG to issue a reformu-

lated proposal that became known as the CAI. The CAI

includes MOAs and MTRs that utilize the Airburst Bomb-

ing Range, a RA. See A-5-8. On July 9, 1993, the Air Force

and ANG published a Notice of Intent to Prepare the

Draft Environmental Impact Statement for the Initiative:

58 Fed. Reg. 36948 (July 9, 1993).

In January 1994, the CAI Working Committee (the

“Working Committee”) was formed, consisting of repre-

sentatives from the Air Force, the ANG, state and federal

agencies, congressional offices, the Colorado Governor’s

office and public groups. The Working Committee met to

discuss the Initiative and the preparation of the Draft EIS,

and documented its recommendations for changes to the

Initiative on May 25, 1994. The Working Committee con-

cluded that the CAI was designed to serve an already

obsolete Airburst Bombing Range, and recommended

that:

the Colorado Airspace Initiative be considered a

temporary, stopgap solution to be implemented

only over the short term to accommodate Colo-

rado Air National Guard training requirements

until a suitable alternative to the Airburst Range

is available.

A-199.

In the Draft EIS, although the ANG ignored the rec-

ommendations of the Working Committee and refused to

treat the Initiative as a temporary solution, it inexplicably

informed decisionmakers that the Initiative’ was

“designed according to the wishes” of the Working Com-

mittee. Nearly all of the public comments received on the

DEIS were in opposition to the Initiative.

The Final EIS prepared by the ANG incorrectly stated

that the preferred alternative (the CAI) would lead to a

decrease in military airspace utilization in Colorado. In

fact, the CAI expands the surface area over which mili-

tary aircraft are permitted to operate in the state, thereby

increasing the overall impact on private property and

property owners in Colorado.

The ANG issued its Record of Decision adopting the

Final EIS on October 28, 1997 and shortly thereafter sub-

mitted its airspace request to the FAA. Although large

numbers of critical comments were submitted to the FAA,

the FAA did not respond to that criticism and never

independently considered the question of whether the

requested airspace was necessary in the interest of

national defense.

While the Initiative was before the FAA, the Colo-

rado legislature, by joint resolution of the House and the

Senate, requested that its key components be relocated

and/or eliminated.

[I]t is the will of the General Assembly that the

Colorado Air National Guard shall diligently

pursue with input from community interest

groups, funding for the relocation of Airburst

Bombing Range and the potential elimination of

La Veta Military Operation Area and its associ-

ated Military Training Routes.

A-206. The FAA ignored these and numerous other

requests and concerns from federal and state agencies, as

well as numerous comments from individuals who had

experienced the disruptive and startling effect of contin-

ual overflights of their property. Instead, the FAA simply

adopted the ANG’s FEIS and, on October 1, 1999, issued a

Record of Decision (“ROD”) approving the Special Use

Airspace requested by the ANG. A-41-58. The FAA ROD

was the final agency action pertaining to the CAI.

The Tenth Circuit reviewed the FAA and ANG

Orders pursuant to 49 U.S.C. § 46110 and the Tenth

Circuit rule promulgated in National Parks & Conservation

Ass'n v. FAA, 998 F.2d 1523 (10th Cir. 1993) (extending

judicial review to the ANG’s decision and final Environ-

mental Impact Statement as incorporated into the FAA’s

final decision). The Tenth Circuit affirmed the orders.

REASONS FOR GRANTING THE WRIT

Petitioners respectfully request that this Court grant

certiorari because the United States Court of Appeals for

the Tenth Circuit has decided several important questions

of federal law that have not been, but should be, settled

by this Court.

First, even though the Federal Aviation Act mandates

that the FAA independently review the ANG’s proposed

military airspace allocations and make findings, sup-

ported by record evidence, as to whether the proposed

allocation is “necessary in the interest of national

defense,” the Tenth Circuit refused to review the basis of

the FAA’s decision to establish the CAI, holding that the

political question doctrine trumped the specific statutory

provisions at issue. See A-11-12. However, the political

question doctrine limits review only of a narrow range of

actions made by federal courts to “military” agencies,

and the Federal Aviation Act specifically provides that

military airspace allocation decisions are made by the

civilian Administrator and subject to judicial review just

like every other civilian agency action. 49 U.S.C.

§ 40103(b)(3), (4).

Second, even though the FAA did not make a finding

of necessity, and therefore did not have the authority to

act, the Tenth Circuit affirmed the FAA order establishing

the CAI. The Tenth Circuit relied on a combination of

faulty statutory interpretation and the FAA’s own

improper administrative classifications to exempt the

FAA from the statutory requirement that its orders

include the findings of fact on which they are based. The

Tenth Circuit held that 49 U.S.C. § 40103(b) only applied

to “Restricted Areas” and excused the FAA from making

formal findings regarding the military necessity of pro-

posed military airspace:

[E]ven if 49 U.S.C. § 40103(b)(3) does apply to

some portion of the Initiative as approved by

the FAA, nothing in that statute mandates that

the FAA make an express finding of necessity. In

the absence of a specific statutory directive, the

law does not always require an agency to make

formal findings.

A-13. This holding is in direct conflict with the Federal

Aviation Act and previous decisions of this Court and the

D.C. Circuit Court of Appeals, all of which require the

FAA to establish that its actions can reasonably be said to

be within the scope of its authority.

A third important federal question is whether the

FAA and ANG were required by the National Environ-

mental Protection Act (“NEPA”) to prepare a program-

matic Environmental Impact Statement (“EIS”) to assess

the connected impact of the CAI and the nationwide

proliferation of military airspace. The Tenth Circuit held

that a programmatic EIS was not required because there

was no “clear nexus between the Initiative and other

military airspace proposals across the Nation.” A-25-26.

Neither the FAA nor the Tenth Circuit asked, as required

by NEPA, whether there was a “clear nexus” between the

CAI and the national military airspace program. The CAI

is just one interdependent part of this program, which is

centrally managed as a national system, on a national

level. The nationwide proliferation of military airspace

pursuant to this program has environmental implications

that must be addressed under NEPA.

Finally, the question of whether the FAA and ANG

violated the Third Amendment when they charted air-

space as low as 300 feet above ground level throughout

segments of the MOAs and MTRs comprising the CAI,

including areas over houses, ranches, and farms, is an

important constitutional question worthy of review. The

Tenth Circuit found no constitutional violation, stating

that:

We simply do not believe the Framers intended

the Third Amendment to be used to prevent the

military from regulated, lawful use of airspace

above private property without the property

owners’ consent. . . . It is not reasonable to

expect privacy from the lawful operation of mil-

itary aircraft in public navigable airspace

: A-39. In fact, many ANG flights under the CAI do not

occur in public navigable airspace (i.e., any flights within

500 feet of a house, person, vessel, structure, etc.).

Whether these low-level military flights, with their

accompanying noise intrusions into private homes, when

sufficiently severe so as to rattle walls, break dishes,

disrupt sleep, and drown out conversation, are actionable

under the Third Amendment is an important federal

question that should be decided by this Court.

I. WHETHER FAA DECISIONS REGARDING THE

ALLOCATION OF NAVIGABLE AIRSPACE FOR

MILITARY USE ARE IMMUNE FROM JUDICIAL

REVIEW IS AN IMPORTANT FEDERAL QUES-

TION THAT SHOULD BE SETTLED BY THIS

COURT.

A. The Tenth Circuit Improperly Expanded The

Political Question Doctrine When It Refused To

Review The FAA’s Decision To Establish The

Colorado Airspace Initiative Pursuant To 49

U.S.C. § 46110 And 5 U.S.C. § 706 On The

Grounds That The FAA’s Decision Was Akin To

Military Action.

While section 40103(b) of the Federal Aviation Act

allows the Administrator to establish military airspace,

section 46110 provides that the Courts of Appeals have

exclusive jurisdiction to “affirm, amend, modify, or set

aside any part of the order and may order the Secretary

or Administrator to conduct further proceedings.” The

Courts of Appeals must review FAA orders pursuant to

the standards set forth in the Administrative Procedure

Act, where Congress expressly charged the judiciary with

ensuring that agencies do not make decisions in an arbi-

trary or capricious manner, OF decisions unsupported by

substantial evidence. 5 U.S.C. § 706.

Traditionally, federal courts have been very reluctant

to waive judicial review of agency decisions. In the

absence of an express prohibition of judicial review in a

statute, an agency “bears the heavy burden of overcom-

ing the strong presumption that Congress did not mean

to prohibit all judicial review of [its] decision.” Dunlop v.

Bachowski, 421 U.S. 560, 567 (1975) overruled in part on

other grounds, Local No. 82 v. Crowley, 467 U.S. 526 (1984).

“(O|nly upon a showing of ‘clear and convincing evi-

dence’ of a contrary legislative intent should the courts

restrict access to judicial review.” Id. (citations omitted).

When Congress desired to immunize FAA decisionmak-

ing under the Federal Aviation Act from judicial review,

it did so expressly. See 49 U.S.C. § 44103(b)(2) (providing

that a decision of the Administrator to issue a certificate

of registration of aircraft after revocation for a controlled

substance violation is not subject to administrative or

judicial review).

Contrary to both the Federal Aviation Act and this

Court's ruling in Dunlop, the Tenth Circuit restricted Peti-

tioners’ access to judicial review. Relying on an expansive

and unprecedented interpretation of the political ques-

tion doctrine, the Tenth Circuit refused to review Peti-

tioners’ administrative law claims because it did not want

to “second guess” or “interfere” with the FAA’s airspace

designation because it involved military considerations.

This was an improper and unprecedented expansion of

the political question doctrine, which. exempts only a

very narrow category of decisions made by the military

itself, and not by civilian agencies such as the FAA.

The Tenth Circuit’s refusal to review this FAA action,

and the FAA’s equally improper deference to the ANG,

leaves the military as the sole decisionmaker regarding

how Colorado airspace will be used. The text and history

of the Federal Aviation Act illustrate that Congress made

a specific choice to place the control of navigable airspace

not with the military, but in the hands of a civilian agency

accountable to the federal courts under the Administra-

tive Procedure Act. The extent of the authority of the

Administrator of the FAA and the nature of the relation-

ship between the military and the FAA were thoroughly

discussed during the debates surrounding the passage of

the Federal Aviation Act in 1958.

A primary concern of the testimony before the sub-

committees was that civil control of the FAA must “be

assured.” Statement of Dr. Leslie A. Bryan, Chairman of

the General Aviation Facilities Planning Group: The Fed-

eral Aviation Act: Hearing on H.R. 12616 Before the House

Subcomm. on Transportation and Commerce of the Comm. on

Interstate and Foreign Commerce, 85th Cong. 167-68 (1958),

A-139-40. See also Statement of A.B. McMullen, Executive

Director of the National Association of State Aviation

Officials: Id. at 232-33, A-159-60. Ultimately, Congress

concluded that the Administrator of the FAA must be a

civilian. If the administrator was a former officer in the

armed services, the deputy administrator must be a per-

son without any prior service as a regular military officer.

H.R. Conference Report No. 2556 (1958), reprinted in 1958

U.S.C.C.A.N. 3767. A-159-60. This statutory provision is

codified at 49 U.S.C. § 106(c)-(d).

The Federal Aviation Act functionally provides that

airspace allocation decisions must be free from undue

military influence to ensure “maximum use of the naviga-

ble airspace by civil aircraft.” 49 U.S.C. § 40103(b)(3). To

that end, military involvement in the allocation of air-

space is limited to a “consultation” between the Adminis-

trator and the Secretary of Defense. Id. (emphasis added).

The Act explicitly provides that, in peacetime, the civilian

Administrator has sole power to allocate airspace for

military purposes, and in turn limits this power to those

“areas in the airspace the Administrator decides are nec-

essary in the interest of national defense.” Id. Unless

specifically exempted from review by statute, all orders

issued by the FAA are subject to judicial review in the

United States Court of Appeals pursuant to 49 U.S.C.

§ 46110, and all factual findings of the FAA must be

supported by “substantial evidence.” § 46110(c).

The APA contains a “military exception” that immu-

nizes rulemaking decisions by military (not civilian)

agencies from judicial review under the APA, in essence

freeing the federal courts from the need to decide

whether review of military decisions would violate the

separation of powers doctrine. See 5 U.S.C. § 553(a)(1).

But the FAA is a civilian agency. Moreover, in the Federal

Aviation Act, Congress expressly provided that FAA reg-

ulations made pursuant to 49 U.S.C. § 40103(b)(3) are not

exempt from the APA under the military exception. 49

U.S.C. § 40103(b)(4). The Tenth Circuit’s application of

the political question doctrine in this case is thus directly

contrary to the unambiguous congressional intent as

expressed in 49 U.S.C. § 40103(b), § 46110 and the Admin-

istrative Procedure Act. This unprecedented restriction

on judicial review of FAA decisionmaking and military

airspace acquisition presents an important federal court

question worthy of this Court’s review.

B. The Tenth Circuit’s Refusal To Review FAA

Decisions Allocating Military Airspace Allows

Arbitrary Decisions Unsupported By Substan-

tial Evidence To Stand.

Congress has expressly provided that the Court of

Appeals shall “hold unlawful and set aside” FAA military

airspace allocation decisions that are “arbitrary, capri-

cious, an abuse of discretion, or otherwise contrary to

law.” 49 U.S.C. § 46110; 5 U.S.C. § 706(2)(A). Additionally,

the Court of Appeals must review the FAA’s findings of

fact to see whether they are supported by substantial

evidence. 49 U.S.C. § 46110(c).

The Administrative Procedure Act was framed

against a background of rapid expansion of the

administrative process as a check upon adminis-

trators whose zeal might otherwise have carried

them to excesses not contemplated in legislation

creating their offices. It created safeguards even

narrower than the constitutional ones, against

arbitrary official encroachment on private

rights.

United States v. Morton Salt Co., 338 U.S. 632, 644 (1950).

The courts, through judicial review of agency actions,

serve the vital role of “dispassionate” and “disinterested”

application of the APA safeguards. Id. at 640-41. The

Tenth Circuit abrogated its duty to safeguard the admin-

istrative process when it refused to review the Adminis-

trator’s decision because it didn’t want to “second-guess”

or “interfere” with the FAA’s decision to establish the

CAI. A-12.

Petitioners did not ask the Tenth Circuit to make a

military decision - Petitioners asked the Tenth Circuit to

review the FAA’s decisionmaking process in light of the

evidence that the FAA’s decision to implement the CAI

was arbitrary, capricious and unsupported by substantial

evidence. Petitioners have been adversely affected by

agency action and inaction, and the Federal Aviation Act

and Administrative Procedure Act allow them to seek

relief. By exempting FAA airspace allocation decisions

from judicial review, the Tenth Circuit has acted outside

of its judicial authority and functionally held that any

allocation of airspace for military purposes will stand

regardless of how frivolous, arbitrary or capricious the

decision may be.

Il. WHETHER FEDERAL COURTS CAN EXEMPT

THE FAA FROM THE FEDERAL AVIATION ACT

REQUIREMENT THAT THE FAA MAKE A SPECI-

FIC FINDING OF NECESSITY BEFORE IT ALLO-

CATES AIRSPACE FOR MILITARY USE IS AN

IMPORTANT FEDERAL QUESTION THAT

SHOULD BE SETTLED BY THIS COURT

A. The Federal Aviation Act Provides That The

FAA Cannot Establish Any Airspace For Mili-

tary Use Without An Initial Determination

That The Airspace In Question Is Necessary In

The Interest Of National Defense.

The Federal Aviation Act directs the FAA to establish

airspace for military use only in areas it decides are

“necessary in the interest of national defense.” 49 U.S.C.

§ 40103(b)(3)(A). This requirement is consistent with Con-

gress’s more general policy of “encourag[ing] and

allow[ing] maximum use of the navigable airspace by

civil aircraft.” 49 U.S.C. § 40103(b)(3). The FAA recog-

nizes that:

while establishment of special use airspace is

essential to national security and the military

mission, unnecessary proliferation of these areas

degrades the special use airspace program and

adversely affects the overall efficiency of the

National Airspace System.

FAA Order 7400.2D § 27-3a, A-105. Therefore, the FAA

requires that:

the volume of airspace to be included in any

specific area of special use airspace and the time

during which it is to be assigned shall be the

minimum required... .

Id. at § 27-3b, A-105 (emphasis added). Furthermore, the

FAA ordered that Special Use Airspace designations

“shall be limited to the minimum number of areas neces-

sary” and that Special Use Airspace activation “shall be

limited to the minimum area, altitude, and time required

for the activity/mission.” FAA Order 7610.4] § 9-1-4,

A-126 (emphasis added).

Petitioners argued to the Tenth Circuit that the FAA

violated these mandates when it approved the CAI with-

out ever making any determination that it is “necessary

in the interest of national defense.” The FAA’s record is

not only devoid of these findings, but is also devoid of

any written analysis that would support such a finding,

or demonstrate that relevant factors were considered.

Despite this complete lack of a record, the Tenth

Circuit concluded that the statute did not require that the

FAA make a specific finding of necessity before it estab-

lished the CAI. The three.bases for the Tenth Circuit's

ruling were: (1) in light of the FAA’s administratively

created distinctions between MOAs, MTRs and other

types of military airspace, the statute does not apply to

the CAI; (2) even if the CAI includes airspace covered by

the statute (such as Restricted Areas which even the

Respondents admit are covered by the statute), the stat-

ute contains no explicit directive requiring the FAA to

make a finding that the proposed airspace is necessary in

the interest of national defense; and (3) the record dem-

onstrated that the FAA believed that the CAI was neces-

sary in the interest of national defense. A-13-14.

However, a plain language reading of the Federal

Aviation Act illustrates that it applies to all decisions

establishing military airspace, that all such decisions

must be preceded by a determination that the allocation

is necessary in the interest of national defense and that

the basis for all FAA orders must be supported by find-

ings of fact. 49 U.S.C. §§ 40103(b)(3), 46105(b). Further,

the FAA’s decision to establish military airspace: cannot

be based on its subjective “belief” that the airspace is

necessary — previous decisions of this Court establish that

agency action must “reasonably be said to be within th[e]

range” of an agency’s statutory authority. See Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416

(1971), abrogated on other grounds by Califano v. Sanders, 430

U.S. 99 (1977).

Under the Tenth Circuit’s novel interpretation of the

Federal Aviation Act, the military has, as a practical

matter, been given unfettered discretion to designate the

airspace it wants.

1. The FAA Cannot Exempt Its Own Actions

From A Congressional Mandate Through

The Use Of Administrative Classifications

Of Special Use Airspace.

An agency’s obligation to comply with the dictates of

the statutes it administers is well-settled. “Statutory con-

struction must begin with the language employed by

Congress and the assumption that the ordinary meaning

of that language accurately expresses the legislative pur-

pose.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S.

189, 194 (1985). “When a court reviews an agency’s con-

struction of the statute which it administers, it is con-

fronted with two questions. First, always, is the question

of whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clesr, that is

the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of

Congress.” Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

Here, Congress has directly spoken to the precise

question at issue. The Federal Aviation Act sets forth a

two part process for the FAA Administrator to follow

when she “establishe[s] security provisions that will

encourage and allow maximum use of the navigable air-

space by civil airspace consistent with national security.”

49 U.S.C. § 40103(b)(3). The statute provides that the

Administrator, in consultation with the Secretary of

Defense, shall:

(A) establish areas in the airspace the Administrator

decides are necessary in the interest of national

defense; and

(B) by regulation or order, restrict or prohibit flight of

civil aircraft that the Administrator cannot identify,

locate, and control with available facilities in those

areas.

49 U.S.C. § 40103(b)(3)(A), (B) (emphasis added).

The statute plainly requires that all military training

airspace be distinguished and/or segregated from the

National Airspace System, but only after the FAA Admin-

istrator first decides such airspace is necessary in the

interest of the national defense. Once the Administrator

makes this necessity determination, she then has the

authority to restrict or prohibit civil aircraft in “those

areas.” 49 U.S.C. § 40103(b)(3)(B).

The Tenth Circuit discarded fundamental principles

of statutory construction and read the statute backwards

in order to exempt the CAI decision from the require-

ments of § 40103(b)(3). Under the Tenth Circuit’s novel

interpretation of the Federal Aviation Act, the circum-

stances of § 40103(b)(3)(B) become a precondition to the

obligations of § 40103(b)(3)(A) instead of the other way

around. A-13. In other words, the Tenth Circuit held that

the FAA’s obligation under Part A, to “establish areas in

the airspace the Administrator decides are in the interest

of national defense” is triggered only if, under Part B,

flight of civil aircraft must be regulated or restricted in

those areas because they cannot be identified, located or

controlled. Id.

On the basis of this statutory misreading, the Tenth

Circuit then relied on the FAA’s own administrative dis-

tinctions between Military Operation Areas and Military

Training Routes on the one hand and Restricted Areas on

the other hand. MOA and MTR flight activity is not

typically limited or altogether prohibited, as occurs in

RAs.2 Relying on this distinction, the Tenth Circuit incor-

rectly excused the FAA from determining whether the

former (MOAs and MTRs) are “necessary in the interest

of national defense.” A-13. The Tenth Circuit thus

improperly allowed the FAA to use administrative classi-

fications to regulate itself out of the requirements of a

congressional directive.

2 Although the FAA claimed that MOAs and MTRs were

“non-rulemaking airspaces,” in truth, the FAA does restrict civil

aviation in MOAs and MTRs. See, e.g., FAA Order 7400.2D § 31-7

(prohibiting IFR activity in MOAs absent “approved

separation”), A-123-24.

2. Federal Courts Cannot Exempt The FAA

From The Federal Aviation Act Require-

ment That It Make A Specific Written Find-

ing That The Proposed Military Airspace Is

Necessary In The Interest Of National

Defense.

After exempting MTRs and MOAs from the necessity

requirements of section 40103(b)(3)(A), the Tenth Circuit

acknowledged that the Airburst Range Restricted Area

(which is a pivotal component of the CAI) would unde-

niably be an “area” in which civil aircraft would be

restricted under 49 U.S.C. § 40103(b)(3)(B) and that at

least part of the CAI might be subject to 49 U.S.C.

§ 40103(b)(3)(A). However, instead of finally enforcing

the FAA’s statutory obligation to make a finding of neces-

sity before allocating airspace for military use, the Tenth

Circuit concluded that 49 U.S.C. § 40103(b)(3)(A) contains

no statutory directive requiring the FAA to make a “for-

mal finding” regarding the “necessity” of military air-

space before establishing Restricted or Prohibited Areas.

A-13.

In so holding, the Tenth Circuit improperly disre-

garded a section of the Federal Aviation Act which man-

dates that FAA orders include the findings of fact upon

which they are based. 49 U:S.C. § 46105(b). The designa-

tion of the airspace comprising the Initiative, for the

purposes of judicial review, is undeniably an “order.” See

Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (“The

core question [for determining when an agency order is

final] is whether the agency has completed its decision-

making process, and whether the result of that process is

one that will directly affect the parties”); Southern Cal.

Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 675 (9th Cir.

1989) (“the APA defines ‘order’ broadly as ‘the whole or

part of a final disposition . . . of an agency in a matter

other than rulemaking’ ”).

The Federal Aviation Act further requires that the

Administrator base her decision to allocate airspace for

military use on her decision that the allocation of airspace

is “necessary in the interest of national defense.” 4»

U.S.C. § 40103(b)(3)(A). Reading these provisions in pari

materia, the FAA must be required to make specific, writ-

ten findings of fact supporting its determination of neces-

sity, because the FAA order establishing the CAI must

include the findings of fact upon which it was based, and

the FAA is required to base its decision on a determina-

tion that the CAI was “necessary in the interest of

national defense.” At a minimum, whether 49 U.S.C.

§ 40103(b)(3)(A) and § 46105(b) require that the FAA

make independent findings regarding the necessity of

military airspace is an important question of federal law

that this Court should resolve.

B. The Tenth Circuit’s Holding That The FAA Did

Not Have To Make An Objectively Reasonable

Specific Finding Of Necessity Conflicts With

Prior Decisions Of This Court.

As explained above, under the Federal Aviation Act,

the FAA can establish airspace for military use only after

it determines that such an allocation is “necessary in the

interest of national defense.” 49 U.S.C. § 40103(b)(3)(A).

Despite this statutory requirement, the Tenth Circuit held

that no formal finding of necessity was required, and

observed that it was sufficient here that the FAA

“believed” requested airspace was necessary in the inter-

est of the national defense. A-14. In so holding, the Tenth

Circuit not only abdicated its own review obligations but

3 Significantly, the Tenth Circuit did not hold that the FAA

in fact made a finding that the CAI was necessary in the interest

of national defense. There was no evidence such a finding had

ever been made, and it was not.

also improperly expanded the FAA’s powers, which Con-

gress itself has carefully, and narrowly, defined.

The Tenth Circuit based its holding upon a restrictive

reading of Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971), abrogated on other grounds by Califano

v. Sanders, 430 U.S. 99 (1977). In the Tenth Circuit’s view,

that case stands for the proposition that an agency need

not always issue formal findings to support its actions.

A-13. But Overton Park does not excuse agencies from

their obligation to act on the basis of reasoned decisions

supported by reviewable records. Rather, Overton Park

stands for the very different principle that reviewing

courts must ensure that administrative agencies reason-

ably act within the scope of their statutory authority, and

make decisions that are not arbitrary, capricious, or other-

wise contrary to law. 401 U.S. 402.

In Overton Park, this Court set out a framework for

courts to follow when they review an administrative

action. First, the reviewing court must decide whether the

agency acted within the scope of its statutory authority.

Id. at 415. Here, the Tenth Circuit should have asked

whether the FAA properly construed its statutory obliga-

tions in establishing airspace for military use. As

described above, however, the Tenth Circuit failed to

address this question, instead allowing the FAA to act

without satisfying the statutory pre-condition of a neces-

sity finding.

Second, under Overton Park, the reviewing court is to

determine whether, on the facts, the agency can reason-

ably be said to have acted within the range of its author-

ity and discretion. Id. The Tenth Circuit again failed to

ask this question, and instead issued a one sentence state-

ment that the record “amply demonstrates” that the FAA

“believed” the CAI to be necessary, even though there

was no evidence in the record that the FAA ever indepen-

dently considered the issue of necessity, or reached any

determination of its own with respect to that issue.

Third, Overton Park requires that a reviewing court

must determine whether the actual decision made was

“arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.” 5 U.S.C. § 706(2)(A). To

make this decision, the court must engage in a searching

and careful review to determine whether the decision was

based on a consideration of the relevant factors and

whether there has been a clear error of judgment. Overton

Park, 401 U.S. at 416. The Tenth Circuit did not just fail to

engage in this searching and careful review, it improperly

invoked the political question doctrine to avoid making

any review of the FAA’s decisionmaking process.

Finally, this Court required that the reviewing court

determine whether the agency followed the necessary

procedural requirements. Id. at 417. Yet again the Tenth

Circuit overlooked this review obligation, and specifically

ignored the requirement in the Federal Aviation Act that

the FAA make specific findings that airspace is necessary

in the interest of national defense before allocating it for

military use. 49 U.S.C. §§ 40103(b)(3), 46105(b).

Under Overton Park, agencies must provide review-

ing courts with at least some record documenting an

actual decisionmaking process. If a reviewing court is

given nothing to review, agency heads could easily over-

step their authority and Congressional mandates could be

rendered meaningless with noone to enforce them. Over-

ton Park, 401 U.S. at 413. Without question, a statement of

findings and reasons, as required by the Federal Aviation

Act, is the most effective protection against arbitrariness.

Id. at 416.4

4 Consistent with this Court’s holding in Overton Park, the

D.C. Circuit Court of Appeals has held that the FAA cannot take

“an ipse dixit approach” to decisionmaking: “because we said

so” is not a permissible justification for agency action. D & F

Afonso Realty Trust v. Garvey, 216 F.3d 1191, 1196 (D.C. Cir.

Instead of ensuring that the FAA acted within the

authority granted to it by Congress in the Federal Avia-

tion Act, the Tenth Circuit expanded that authority by

ignoring the statutory requirements (including the

requirement that the FAA determine whether requested

military airspace is “necessary in the interest of national

defense”), by refusing to review the FAA’s action, and by

deferring to agency belief when reasoned decisionmaking

was required. This Court should grant certiorari, and

correct the Tenth Circuit’s fundamental error.

III. WHETHER THE NATIONAL ENVIRONMENTAL

POLICY ACT (“NEPA”) REQUIRED THE FAA

AND THE ANG TO CONSIDER THE ENVIRON-

MENTAL IMPACT OF THE NATIONWIDE PRO-

LIFERATION OF MILITARY AIRSPACE IS AN

IMPORTANT-FEDERAL QUESTION THAT

SHOULD BE SETTLED BY THIS COURT.

Public officials have an obligation under NEPA to

“make decisions that are based on understanding of envi-

ronmental consequences, and take actions that protect,

restore and enhance the environment.” 40 C.F.R.

§ 1500.1(c). This includes an obligation to prepare an

Environmental Impact Statement (“EIS”) on proposals for

all “major Federal actions significantly affecting the

human environment.” 42 U.S.C. § 4332. This serves to’

ensure that decisionmakers and the public are provided

with information about the larger context in which a

proposed action is to take place. See, e.g., Kleppe v. Sierra

Club, 427 U.S. 390, 400 (1976) (stating that Department of

Interior’s admission that a programmatic EIS was

2000) (reversing and remanding an FAA order where “the FAA

did not consider relevant factors or sufficiently explain the basis

of its decision” and this “post hoc rationalization for deviating

from procedure and for failing to substantiate its [action] cannot

pass muster as a matter of law”).

required for a national coal leasing program was “well

made” where “the new leasing program is a coherent

plan of national scope, and its adoption surely has signifi-

cant environmental consequences”).

Without question, airspace is an important part of

our environment, and federal programs affecting our air-

space are subject to these environmental study require-

ments. As the ANG acknowledges, airspace is a “precious

national resource.” A-169. As such, it belongs to the citi-

zens of this country. Congress has specifically directed

that this national resource is to remain in civilian hands

by charging the FAA to “encourage and allow maximum

use of the navigable airspace by civil aircraft consistent

with national security.” 49 U.S.C. § 40103(b)(3).

“A programmatic EIS reflects the broad environmen-

tal consequences attendant upon a wide-ranging federal

program. The thesis underlying a programmatic EIS is

that a systematic program is likely to generate disparate

yet related impacts.” National Wildlife Fed’n v. Appalachian

Regional Comm'n, 677 F.2d 883, 888 (D.C. Cir. 1981). The

purpose of a programmatic EIS is to promote better deci-

sionmaking for major federal actions consisting of a

number of related enterprises associated with a single

program and planned together. Id.

Agencies must include an evaluation of the environ-

mental impact of “connected actions” within the scope of

an EIS. 40 C.F.R. § 1508.25(a)(1)(iii). Actions are con-

nected if they “[aJre interdependent parts of a larger

action and depend on the larger action for their justifica-

tion.” Id. Despite these requirements, the FAA has

allowed the Air Force and other branches of the military

to gradually and systematically set aside 40% of the

nation’s navigable airspace for military use without con-

ducting any programmatic EIS of any sort. The military

airspace network is an ever-expanding spiderweb of

MTRs, MOAs, Restricted Areas, and other areas, all of

which are linked, and through which military aircraft can

travel from one end of the country to the other. See Map

of Existing and Proposed MOAs and MTRs, A-168

(depicting updated information originally found in Long

Range Airspace Planning (1992), A-169). The CAI is merely

one interdependent part of this national system. This

nationwide military airspace network, and not merely its

component parts, has significant impact on the human

environment.

In refusing to mandate a programmatic EIS, the Tenth

Circuit never considered whether justification for the CAI

was dependent on the existence of the national military

airspace program. Instead the Tenth Circuit asked and

answered the wrong question: whether the justification

for the CAI depended on other proposed airspace desig-

nations. It then concluded that the FAA and ANG were

not required to analyze the environmental impact of the

nationwide proliferation of military airspace because

there was no “clear nexus” between the CAI and other

military airspace proposals across the Nation. A-26.

As a result, the CAI was established without any

analysis, as required by 40 C.F.R. § 1508.25(a)(1)(iii), of

whether the various plans for Special Use Airspace

expansion in the United States are “connected actions”

because they are interdependent parts of the national

military airspace program, and depend on that program

for their justification. If the FAA and the Tenth Circuit

had asked these questions, they would have had to con-

sider the following facts, all of which establish that the

CAI was an interdependent part of a national (and at the

very least regional) plan:

e Military use airspace is centrally managed as a

national system, on a national level, as evidenced by

the fact that the CAI proposal originated in the ANG

and FAA headquarters in Washington D.C.

e The USAF Airspace Master Plan (which according to

the ANG, necessitates its current request for more

airspace) “establishes the basis for a comprehensive

analysis of total Department of Defense require-

ments. ... ” FEIS at ix.

e The CAI is part of the “Federal mission” to provide

the Department of Defense with “combat-ready air-

crews and support personnel for worldwide deploy-

ments, should the need arise.” ANG ROD, A-59.

e ANG units have increased as a percentage of the total

military force and thus have assumed a more promi-

nent role in our national defense. ANG ROD, A-60.

e “The ANG airspace planning focus is on regional and

interstate.” A-171.

e Regional Airspace Planning Committees meet to

determine airspace requirements and are made up of

senior ANG leaders from each state in a FAA region.

A-169-173. The ANG has acknowledged that there is a

role for a national Airspace Steering Committee.

A-173.

Instead, the Tenth Circuit decision grants agencies

permission to avoid their NEPA obligations by dividing

the national military airspace program into component

parts, each involving action with less significant environ-

mental effects than if they were considered as a whole.

Such “segmentation” is improper and contrary to the

requirements of NEPA and its implementing regulations.

See, e.g., National Wildlife Fed’n, 677 F.2d at 890 (” ... the

existence of a comprehensive program with cumulative

environmental effects cannot be escaped by disin-

genuously describing it as only an amalgamation of unre-

lated smaller projects”) (citations omitted)5; Morongo Band

5 The National Wildlife Federation court observed that in

determining whether it is too late for an agency to comply with

its obligation to issue a programmatic EIS, “[t]he question must

be what agency decisions are yet to be made, and what

decisions, although already made, remain open to revision.

National Wildlife Fed’n, 677 F.2d at 892 (citation omitted). The

of Mission Indians v. FAA, 161 F.3d 569, 579 (9th Cir. 1998)

(“connected actions must be considered together in order

to preclude an agency from dividing a project into several

smaller actions, each of which might have an insignificant

environmental impact when considered in isolation, but

which taken as a whole have a substantial impact”) (cita-

tions omitted).

The Tenth Circuit’s ruling allows the FAA and ANG

to artificially segment the national military airspace pro-

gram and thereby avoid preparing a programmatic EIS

under NEPA. Whether that ruling is appropriate is an

important federal question worthy of this Court's review.

IV. WHETHER THE THIRD AMENDMENT PRO-

HIBITS THE MILITARY FROM OCCUPYING

NON-NAVIGABLE AIRSPACE OVER PRIVATE

PROPERTY DURING PEACETIME WITHOUT

THE OWNER’S CONSENT IS AN IMPORTANT

QUESTION OF CONSTITUTIONAL LAW.

The Third Amendment to the United States Constitu-

tion provides that: “[n]o Soldier shall, in time of peace be

quartered in any house, without the consent of the

Owner, nor in time of war, but in a manner to be pre-

scribed by law.” U.S. Const. amend. III. The “philosophi-

cal underpinnings” of the Third Amendment empower

the federal courts to limit military operations in‘ peace-

time and to entertain claims of judicially cognizable

military airspace system (over one million square miles and

growing) is constantly in flux and rapidly expanding

nationwide. It has not remotely approached a state of

completion that would exempt the ANG and FAA from

conducting a programmatic EIS. Airspace allocation decisions

remain open to revision because they do not require physical

construction. Instead, boundaries in airspace can be shifted by

merely redrawing aviation charts if necessary. It is not too late

to hold the ANG and FAA to their NEPA obligations.

en ee

injury from military intrusion into the civilian sector.

Laird v. Tatum, 408 U.S. 1, 15-16 (1972). “[I]t is an unbend-

ing rule of law that the exercise of military power, where

the rights of the citizen are concerned, shall never be

pushed beyond what the exigency requires.” Id. at 20

(Douglas J., dissenting) (citations omitted).

Petitioners’ rights in their homes, and thus their

rights to resist military occupancy, extend beyond struc-

tures alone. “[P]roperty-based privacy interests protected

by the Third Amendment are not limited solely to those

arising out of fee simple ownership but extend to those

recognized and permitted by society as founded on law-

ful occupation or possession with a legal right to exclude

others.” Engblom v. Carey, 677 F.2d 957, 962 (2d Cir. 1982)

(broadly interpreting the term “home” in the Third

Amendment to include property rights protected by the

Fourth Amendment). y

It is well-settled under the Fifth Amendment that a

“taking” occurs when the government appropriates a pri-

vate party’s property interests in the airspace above its

property. See United States v. Causby, 328 U.S. 256, 264

(1946) (“[I]t is obvious that if the landowner is to have

full enjoyment of the land, he must have exclusive control

of the immediate reaches of the enveloping atmo-

sphere.”); Brown v. United States, 73 F.3d 1100, 1105 (Fed.

Cir. 1996) (“the Government does not have the right to

declare itself a co-tenant-in-possession [of the airspace

above a citizen’s property]”) (citations omitted). This

Court in Causby emphasized that the government had not

“merely destroyed property [with its overflights but was]

using a part of it for the flight of its planes.” Causby, 328

U.S. at 262-63. n. 7.

The Tenth Circuit’s holding that “it is not reasonable

to expect privacy from the lawful operation of military

aircraft in public navigable airspace,” A-39, is inapplica-

ble to Petitioners’ challenge to the CAI because the CAI

allocates non-public, non-navigable airspace for military

use. A concern raised during the hearings on the Federal

Aviation Act was the possibility of a flood of lawsuits

under the Fifth Amendment for takings of airspace above

civilian property by the military. See Statement of A.B.

McMullen, A-i50-52. To address this concern, Congress

added the word “navigable” to the Act and then defined

“navigable airspace” as “airspace above the minimum

altitudes of flight prescribed by regulations . . . including

airspace needed to ensure safety in the takeoff and land-

ing of aircraft.” See 49 U.S.C. § 40102(a)(30).

Under the Federal Aviation Act, only the FAA, a

civilian agency, has the authority to establish regulations

implementing the statute and to set the minimum altitude

of navigable airspace. 49 U.S.C. § 40103(b). Pursuant to

that authority, the FAA has set minimum flight altitudes

at 1,000 feet over congested areas, 500 feet over non-

congested areas, and 500 feet from any person, vehicle,

vessel or structure. 14 C.F.R. § 91.119(a)-(c). Aircraft may

never fly below an altitude sufficient to ensure a safe

emergency landing. Id. The airspace within 500 feet of a

person’s home is by definition non-navigable, and

thereby not public. Each time military pilots fly less than

500 feet from a house or other structure, they are physi-

cally placing themselves in that person's private property.

When the FAA charted CAI airspace as low as 300

feet, it opened the door to military use of private prop-

erty without consent. Despite promises to the contrary,

the military can and does use this Special Use Airspace at

its minimum charted altitudes, dependent only on the

military's own determination as to whether national

emergency OF special training requirements justify such

use. But Petitioners’ constitutional right of freedom from

military occupation of private property cannot be

trumped by the military's declaration of need. The Third

Amendment prevents that very situation.

The invasion of Petitioners’ property by ANG over-

flights goes beyond the physical presence of the planes

themselves. Under Engblom, Third Amendment protec-

tions extend at least as far as Fourth Amendment protec-

tions, and the Fourth Amendment is violated when

overflights “pry into or enter private homes or their

curtilage” and such “prying” is accomplished by

“repeated buzzings” that “at best disturb, and at worst

terrorize, the hapless residents below.” NORML v. Mullen,

608 F. Supp. 945, 957 (N.D. Cal. 1985); see also Florida v.

Riley, 488 U.S. 445, 452 (1989) (the presence of “undue

noise” affected the Court’s determination of the constitu-

tionality of a police overflight). During military over-

flights, walls shake, people are unable to sleep, carry on a

conversation or talk on the phone. The vibration and

noise caused by military overflights regularly enters

members’ homes and interferes with members’ use and

enjoyment of their property. This, in itself, amounts to

occupancy, or “quartering,” in violation of the Third

Amendment.

This Court recently recognized that “[i]t would be

foolish to contend that the degree of privacy secured to

citizens by the Fourth Amendment has been entirely

unaffected by the advance of technology.” Kyllo v. United

States, 121 S. Ct. 2038, 2043 (2001). The same is true with

the Third Amendment. Indeed, limiting the scope of the

Third Amendment to instances in which individuals are

required to take in infantry soldiers as boarders in their

homes would put private individuals “at the mercy of

advancing technology” by the military. See Kyllo, 121

S. Ct. at 2044. At least one federal court has found such a

limited application of the Third Amendment to be

impractical in modern times:

Can it be the Third Amendment protects the

United States citizens against deprivation of

property through deployment of infantry but

provides obstacles to any remedy for damages

done by million dollar airplanes?

Arnhold v. United States, No. 88-0934C(3), 1989 U.S. Dist.

LEXIS 17904 at *6 (E.D. Mo. June 13, 1989) (finding the

United States liable for a constitutional tort under the

Third Amendment where the vibrations from low-level

overflights physically invaded plaintiff’s home).

The Tenth Circuit refused to consider this claim, and

instead held that citizens have no constitutional recourse

when the military conducts training activities in non-

navigable airspace as near as 300 feet from their homes.

That interpretation of the Third Amendment is archaic

and unreasonable and warrants review by this Court.

CONCLUSION

For the reasons set forth above, petitioners Custer

County Action Association et al. respectfully request that

this Court grant the Petition for Writ of Certiorari and

provide such other relief that may be appropriate under

the circumstances.

Dated: October 17, 2001

Respectfully submitted,

Brian B. O’NerLi '

Counsel of Record for Petitioners

FagGRE & Benson LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402-3901

Telephone: (612) 766-7000

TABLE OF CONTENTS

Custer County Action Association v. Garvey, 256 F.3d

OE eh elt iccty ec cc A-1

Federal Aviation Administration Record of Deci-

sion for the Adoption of the Colorado Airspace

Initiative Prepared by the National Guard, 64

Fed. Reg. 54721 (Oct. 7, Ga eeeeses et A-41

Air National Guard Record of Decision for the

Colorado Airspace Initiative (Oct. 28, 1997) ..... A-59

Constitutional, Statutory and Regulatory Provi-

PN Seri Stn cece cicicty cist es. A-92

Excerpts from FAA Order 7400.2D, Procedures for

Handling Airspace Matters (Sept. 16, 1993) ...... A-104

Excerpts from FAA Order 7610.4J, Special Military

Operations (Nov. 3, cn, SNS ERS cle ae ata A-125

Excerpts from Statement of Dr. Leslie A. Bryan,

Chairman of the General Aviation Facilities

Planning Group, The Federal Aviation Act:

Hearing on H.R. 12616 Before the House Subcomm.

on Transportation and Commerce of the Comm. on

Interstate and Foreign Commerce, 85th Cong.

Pe AV 6s cen ddedd sdesbc'ecess cc. A-137

Excerpts from Statement of A.B. McMullen, Exec-

utive Director of the National Association of

State Aviation Officials, The Federal Aviation Act:

Hearing on H.R. 12616 Before the House Subcomm.

on Transportation and Commerce of the Comm. on

Interstate and Foreign Commerce, 85th Cong. 230,

PN OOP CNUOUD occ ecccsevecsevecs. sic... A-144

TABLE OF CONTENTS - Continued

H.R. Conference Report No. 2556 (1958), reprinted

in 1958 U.S.C.C.A.N. 3767 ....ccccccccecevececs A-157

Map of Existing and Proposed Military Opera-

tions Areas and Military Training Routes in the

United States, updating information originally

found in Air National Guard: Long Range Airspace

Planning (Jan. 1992).......ee eee cece eee eee enees A-168

Executive Summary from Air National Guard: Long

Range Airspace Planning (Jan. 1992).....-.+++++: A-169

Colorado Airspace Initiative Working Committee

Recommendations (May 1994).......sseeeeeeeee A-194

State of Colorado Joint Senate Resolution 98-010:

Concerning the Impact of the Colorado Air-

space Initiative .........sseeeree ences eee eeeess A-206

A-l

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CUSTER COUNTY ACTION |

ASSOCIATION; NATIONAL

AIRSPACE COALITION; OPEN |

SPACE ALLIANCE; THE |

WILDERNESS SOCIETY; BOARD OF |

DIRECTORS OF MOFFAT |

CONSOLIDATED SCHOOL

DISTRICT NO. 2; CUSTER COUNTY |

AIRPORT AUTHORITY: FREMONT |

COUNTY AIRPORT; THE BOARD |

OF THE TOWN OF CRESTONE; |

THE BOARD OF COUNTY

COMMISSIONERS OF CUSTER |

COUNTY; THE BOARD OF COUNTY!

COMMISSIONERS OF FREMONT si0f

COUNTY, COLORADO; THE BOARD!

OF COUNTY COMMISSIONERS OF |

SAGUACHE COUNTY, COLORADO; |

THE SPIRITUAL LIFE INSTITUTE; |

LA VETA PEACE OF AIR |

ALLIANCE; CRESTONE MOFFAT i

BUSINESS ASSOCIATION;

HUERFANO VALLEY CITIZENS |

ALLIANCE; RURAL ALLIANCE FOR!

MILITARY ACCOUNTABILITY: |

WOLF SPRINGS RANCHES, INC.; |

THE HISTORIC PINES RANCH;

CUSTER COUNTY BISON; KAREN |

G. WORONOFF; DAVID S. |

WORONOFFE, |

Petitioners,

No. 99-9543

(Filed

July 19, 2001)

A-2

JANE F. GARVEY, as Administrator of |

the FEDERAL AVIATION |

ADMINISTRATION; and UNITED |

STATES AIR FORCE MAJOR GENERAL |

PAUL A. WEAVER, Jr., as Director of |

the AIR NATIONAL GUARD, |

Respondents.

Appeal from the Federal Aviaton Administration

and the Air National Guard

Brian B. O’Neill (Michael A. Ponto, Elizabeth H. Schmies-

ing, and Michael D. Beach of Faegre & Benson LLP,

Minneapolis, Minnesota; and Colin C. Deihl of Faegre &

Benson LLP, Denver, Colorado, with him on the briefs) of

Faegre & Benson LLP, Minneapolis, Minnesota, for Peti-

tioners.

Ronald M. Spritzer (Lois J. Schiffer, Assistant Attorney

General; M. Alice Thurston, Department of Justice; Hans

I.E. Bjornson, Federal Aviation Administration; and

Randy Chambers, National Guard Bureau, with him on

the brief), Department of Justice, Washington, D.C., for

Respondents.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Cir-

cuit Judge, and BROWN,’ District Judge.

* The Honorable Wesley E. Brown, Senior United States

District Judge for the District of Kansas, sitting by designation.

A-3

BRORBY, Senior Circuit Judge.

Petitioners ask us to reverse the Federal Aviation

Administration’s (FAA) and Air National Guard’s (ANG)

orders approving the Colorado Airspace Initiative (Initia-

tive) and finding adequate the Final Environmental

Impact Statement on the Initiative. They claim the orders

approving the Initiative and the underlying environmen-

tal impact analysis violate the Federal Aviation Act, 49

U.S.C. § 40103(b)(3), and the National Environmental Pol-

icy Act, 42 U.S.C. §§ 4321-4370(e). Petitioners further

claim implementation of the Initiative will violate their

property rights under the Third and Fifth Amendments to

the United States Constitution.

We exercise jurisdiction over the FAA's final order

pursuant to 49 U.S.C. § 46110. National Parks & Conserva-

tion Ass'n v. Federal Aviation Admin., 998 F.2d 1523,

1528-29 (10th Cir. 1993) supports extending our review to

the ANG’s decision and final environmental impact state-

ment as incorporated into the FAA’s final decision. Hav-

ing carefully reviewed the administrative record,! and for

} Petitioners have requested to supplement the

administrative record with numerous additional documents,

including affidavits, newspaper articles, U.S. Census Bureau

population estimates, and a “preliminary Draft” of a “Generic

Environmental Impact Statement for Air Force Low Altitude

Flying Operations.” Respondents oppose this request, except as

to the tape and transcript attached to the Affidavit of Elizabeth

A. Boike, which they agree represents an accurate transcription

A-4

the reasons set forth below, we deny the Petition for

Review.

BACKGROUND

This dispute was triggered by the Colorado Airspace

Initiative - proposed special use airspace changes to the

National Airspace System designed to: (1) provide the

necessary airspace for the 140th Tactical Fighter Wing of

the Colorado ANG to be able to train with the F-16

fighter jet under realistic conditions; and (2) respond to

changes in commercial aircraft arrival and departure

of a meeting that was part of the administrative process.

Judicial review of an agency decision is generally limited to

review of the administrative record. See Federal Power Comm'n v.

Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331 (1976);

accord Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426,

433 n.7 (10th Cir. 1996). The circumstances which warrant

consideration of extra-record materials are “extremely limited.”

American Mining Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir.

1985) (listing possible justifications as: (1) the agency action is

not adequately explained and cannot be reviewed properly

without considering the cited materials; (2) the record is

deficient because the agency ignored relevant factors it should

have considered in making its decision; (3) the agency

considered factors that were left out of the formal record; (4) the

case is so complex and the record so unclear that the reviewing

court needs more evidence to enable it to understand the issues;

and (5) evidence coming into existence after the agency acted

demonstrates the actions were right or wrong), cert. denied, 476

U.S. 1158 (1986). The narrow conditions warranting an

exception to the general rule are not present in this case.

Accordingly, we deny Petitioners’ motion to supplement the

record, except for the unopposed affidavit of Elizabeth A. Boike.

A-5

corridors required for operation of Denver International

Airport.

The Colorado ANG is under the command and con-

trol of the Governor of Colorado and is also a reserve

component of the United States Air Force. ANG units

have increased as a percentage of the total military force

and thus have assumed a more prominent role in our

national defense. For example, the 140th Air Wing has

assisted in Operation Northern Watch, enforcing the no-

fly zone in northern Iraq, Operation Southern Watch,

enforcing the no-fly zone in southern Iraq, and in opera-

tion Coronet Night Hawk, intercepting drug runners

from Colombia. The Air Force provides the F-16 fighter

and other weapon systems to the ANG. Those systems

must be maintained and utilized pursuant to Air Force

and Department of Defense regulations. 32 U.S.C. § 701,

et seq. The ANG’s need for frequent, realistic training

exercises using these systems is obvious.

ANG pilots utilize three types of airspace in conduct-

ing their training exercises: Military Training Routes

(MTRs),2 Military Operations Areas (MOAs),? and

2 “A MTR is a long, low-altitude corridor that serves as a

flight path to a particular destination. A standard MTR usually

ranges from 500 feet to 1,500 feet above ground level.” “MTRs

are designed to provide military pilots with training routes to

practice navigational skills over a variety of terrain types and

provide access to MOAs, air-to-ground gunnery ranges, and

other destinations.”

3 “MOAs are larger expanses of airspace designed to

accommodate a wide variety of nonhazardous military flight

training maneuvers. The size of a MOA depends on the types of

A-6

Restricted Areas (RAs).* As finally approved, the Initia-

tive involved a total of fourteen modifications to MTR

and MOA airspace in Colorado. The FAA groups these

modifications into four actions:

1. Kit Carson MOA - This has been

renamed the Cheyenne MOA. It retains roughly

the same dimensions as the Kit Carson MOA,

except that the FAA directed that the western

boundary be shortened approximately 10 nauti-

cal miles in order to accommodate new

approaches to the Denver International Airport.

The minimum flying altitude was raised from

100 feet to 300 feet above ground level.

2. Pinon Canyon MOA and Two Buttes

MOA - This is the most significant change

found in the [Initiative]. While the Pinon Can-

yon MOA was already in existence, the Two

Buttes MOA is new. The Two Buttes MOA abuts

the eastern edge of the Pinon Canyon MOA to

create one large MOA. The Two Buttes MOA is

large enough to handle F-16 fighters engaged in

air-to-air combat training missions. The Pinon

Canyon MOA is used primarily for close-air-

support training.

air maneuvers that occur within the MOA. The maximum

altitude for a MOA is 17,999 feet above mean sea level. MOAs

are not created to prevent access by other aircraft, but rather to

show civil aircraft pilots where nonhazardous military flight

training may be taking place.” “MOAs are typically only

scheduled a few hours a day and are not in continuous daily

use.”

4 “A RA is usually reserved for training involving either

ground- or air-based weapons. These areas are restricted to

ensure the safety of aircraft - both military and civilian - not

participating in the training exercise.”

A-7

3. Fremont MOA - This MOA was divided

into three parts, named the Airburst A, B, and C

MOAs. The original MOA was enlarged at some

points and reduced at others. The modifications

allow more realistic training opportunities for

aircraft utilizing the existing Airburst range.

That portion of the Airburst MOA that leads to

the Airburst Range has a minimum altitude of

500 ft. above ground level... . The minimum

aititude of the rest of Airburst MOA will remain

the same as when it was the Fremont MOA,

1,500 ft. [above ground level].

4. MTRs into, out of, and through MOAs -

All other airspace modifications within the [Ini-

tiative] address how aircraft are to get to and

from the MOAs listed above. The previous

MTRs had no minimum altitude restrictions.

Under the [Initiative], all MTRs will be raised to

either 300 feet or 500 feet above ground level. A

number of MTRs were narrowed by the FAA as

part of its environmental mitigation.

According to the FAA,

[t]he remaining MOA, La Veta, is unchanged from its

previous use, except the FAA deleted a small portion for

the benefit of the Fremont County Airport. Although

some of the [Initiative] airspace is charted down to 300

feet above ground level, that airspace will not be flown

lower than 500 feet [above ground level] ‘expect [sic] in

national emergencies or [for] special training require-

ments.’ ”

The ANG issued its record of decision adopting the

above-referenced changes, identified as the “preferred

alternative” in the Final Environmental Impact Statement,

in October 1997. 62 Fed. Reg. 60487 (Nov. 10 1997). In

A-8

October 1999, the FAA issued a final order (1) adopting

the Final Environmental Impact Statement the ANG pre-

pared on the Initiative, and (2) directing that the

requested Special Use Airspace changes to the National

Airspace System identified as the preferred alternative in

the Final Environmental Impact Statement be imple-

mented. 64 Fed. Reg. 54721 (Oct. 7, 1999). Petitioners filed

their Joint Petition for Review of the ANG and FAA

orders in November 1999.

STANDARD OF REVIEW

The Administrative Procedure Act, 5 U.S.C. § 706, gov-

erns our review of the ANG’s® and FAA’s final decisions.

See Arapahoe County Pub. Airport Auth. v. Federal Aviation

Admin., 242 F.3d 1213, 1218 (10th Cir. 2001). We will set

aside an agency decision if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A).© In determining whether an

agency’s decision is arbitrary or capricious, we “must

5 The Department of Defense, including the Airforce and

KNG [sic], is not excepted from National Environmental Policy

Act requirements. See Jackson County v. Jones, 571 F.2d 1004, 1007

(8th Cir. 1978).

6 More specifically, a reviewing court may set aside an

agency determination pursuant to 5 U.S.C. § 706(2) if it is (a)

arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (b) contrary to constitutional right, power,

privilege, or immunity; (c) in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right; (d) without

observance of procedure required by law; (e) unsupported by

substantial evidence; or (f) unwarranted by the facts to the

extent they are subject to de novo review. 5 U.S.C. § 706(2); see

Lewis v. Babbitt, 998 F.2d 880, 881-82 (10th Cir. 1993).

A-9

consider whether the decision was based on a consider-

ation of the relevant factors and whether there has been a

clear error of judgment. This inquiry must be searching

and careful, but the ultimate standard of review is a

narrow one.” Marsh v. Oregon Natural Res. Council, 490

U.S. 360, 378 (1989) (quotation marks and citation omit-

ted).

The agencies’ findings of fact are conclusive if sup-

ported by substantial evidence. 49 U.S.C. § 46110(c); see

also Wyoming Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224,

1231 (10th Cir. 2000). The substantial-evidence standard

does not allow us to displace the agencies’ “ ‘choice

between two fairly conflicting views, even though the

court would justifiably have made a different choice had

the matter been before it de novo.’ ” Arapahoe County Pub.

Airport Auth., 242 F.3d at 1218 (quoting Wyoming Farm

Bureau Fed’n, 199 F.3d at 1231).

We review Petitioners’ constitutional claims de novo.

See Trimmer v. United States Dep’t of Labor, 174 F.3d 1098,

1102 (10th Cir. 1999).

ANALYSIS

Petitioners raise an indiscriminate number of statu-

tory and constitutional challenges to the ANG and FAA

decisions approving the Initiative. First, they claim the

FAA violated the Federal Aviation Act, 49 U.S.C.

§ 40103(b)(3)(A), FAA regulations and the Administrative

Procedure Act

by implementing the [Initiative]: (a) without

determining whether the Initiative is necessary

in the interest of national defense; (b) without

A-10

record evidence to support such a conclusion;

Initiative is not necessary in the interest of

national defense; (d) without accurate informa-

tion with which it could determine whether the

ANG has been using the minimum amount of

airspace necessary; and by unlawfully delegat-

ing its authority to set minimum altitudes of

flight to the military[.]

Second, Petitioners claim the ANG and FAA violated

the National Environmental Policy Act, 42 U.S.C. §§ 4321

et seq., and its implementing regulations, 40 C.F.R.

§§ 1500.1-1508.28,

by adopting an [Environmental Impact State-

ment] that: (a) fails to adequately analyze the

noise impacts of the Initiative; (b) omits analysis

of the cumulative impacts of the [Initiative] and

other airspace use in the region; (c) omits anal-

ysis of the impacts of military overflights on

Wilderness Areas, proposed wilderness,

national monuments, and proposed national

parks; (d) omits analysis of the nationwide

impacts of military airspace proliferation; (e) ©

fails to accurately and adequately analyze socio-

economic and growth-related impacts; and (f)

fails to consider reasonable alternatives|.]

Finally, Petitioners argue the ANG and FAA violated

the Fifth Amendment of the United States Constitution by

taking Petitioners’ property interests without due process

of law, and violated the Third Amendment by appropriat-

ing Petitioners’ property interests and invading Peti-

tioners’ privacy for military purposes during peacetime

without their consent. We address each claim in turn.

A-11

Federal Aviation Act Claims

Justiciability

The FAA asserts its decision the Initiative is neces-

sary in the interest of national defense, made in consulta-

tion with the Department of Defense, is not subject to

judicial review, “because it is a political question commit-

ted by the Constitution to the legislative and executive

branches of government.” Whether the political question

doctrine restricts our review of this matter is a question

of law we determine de novo. See Adkins v. United States,

68 F.3d 1317, 1322 (Fed. Cir. 1995).

The political question doctrine employs separation of

powers principles to restrict the justiciability of certain

issues. See Aktepe v. United States, 105 F.3d 1400, 1402-03

(11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998). Matters

closely related to foreign policy and national security, for

example, “are rarely proper subjects for judicial interven-

tion.” Haig v. Agee, 453 U.S. 280, 292 (1981). Similarly,

courts afford the political branches of government a par-

ticularly high degree of deference in the area of military

affairs, because the Constitution expressly confers

authority over the military on the executive and legisla-

tive branches. Aktepe, 105 F.3d at 1403 (citing U.S. Const.

art. I, § 8, cls. 11-16; U.S. Const. art. II, § 2); Clark v.

Widnall, 51 F.3d 917, 921 (10th Cir. 1995). We do not

hesitate, however, to review military action (1) to deter-

mine whether military officials have acted within the

scope of their powers, (2) to determine whether military

officials violated their own regulations, (3) to evaluate the

constitutionality of statutes pertaining to the military, or

A-12

(4) to evaluate the constitutionality of court-martial con-

victions and selective service induction procedures. Clark,

51 F.3d at 921; see also Mindes v. Seaman, 453 F.2d 197,

200-01 (5th Cir. 1971).

We recognize the action at issue here technically is

not military action. The FAA is a civilian agency. By

statute, however, the FAA is instructed to determine

whether airspace is necessary to national defense in con-

sultation with the Defense Department. 49 U.S.C.

§ 40103(b)(3). Under these circumstances, we believe the

political question doctrine precludes us from second-

guessing or interfering with the FAA’s decision the Initia-

tive is necessary to provide airspace for military training.

See Gilligan v. Morgan, 413 U.S. 1, 5-11 (1973) (holding

issues of National Guard training and weaponry are

essentially professional military judgments within the

constitutionally vested responsibility of the legislative

and executive branches, and outside the courts’ compe-

tence). However, we are free to review whether, in mak-

ing that decision, the FAA acted within the scope of its

powers, followed its own regulations, and complied with

the Constitution. Clark, 51 F.3d at 921. We proceed, then,

to evaluate Petitioners’ claims to the extent they raise

issues within these permissible review parameters.”

7 While phrased as questions of administrative law,

Petitioners’ claims (1) no record evidence supports a decision

the Initiative is necessary for national defense, (2) substantial

evidence exists to show the Initiative is not necessary for

national defense, and (3) the FAA used inaccurate information

concerning the minimum amount of airspace necessary for

ANG training, in truth attack the substance of the FAA’s

necessity determination. Petitioners really are asking this court

A-13

Findings of Necessity

Petitioners claim the FAA violated the Federal Avia-

tion Act by failing to determine whether the Initiative is

necessary in the interest of national defense. Petitioners

are correct that 49 U.S.C. § 40103(b)(3)(A) directs the FAA

to establish airspace areas it deems necessary in the inter-

est of national defense. However, they overlook the speci-

fic purpose for that determination as set forth in

§ 40103(b)(3)(B): if, using “available facilities,” the

Administrator “cannot identify, locate, and control” civil

aircraft in those areas deemed necessary for national

defense, the Administrator shall restrict or prohibit civil

aircraft flight in those areas by regulation or order.

As the FAA points out, by definition, MTRs and

MOAs do not restrict or prohibit civil aircraft access. See

supra notes 2-3 and accompanying text. Arguably then, 49

U.S.C. § 40103(b)(3)(A) does not apply to the FAA’s

approval of modifications to MTR and MOA airspace in

Colorado. However, even if 49 U.S.C. § 40103(b)(3) does

apply to some portion of the Initiative as approved by the

FAA, nothing in that statute mandates that the FAA make

an express finding of necessity. In the absence of a speci-

fic statutory directive, the law does not always require an

agency to make formal findings. See Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 417 (1971), abro-

gated on other grounds by Califano v. Sanders, 430 U.S. 99

(1977); cf. Southwestern Bell Mobil [sic] Sys., Inc. v. Todd,

to conclude the Initiative is not necessary in the interest of

national defense. For the reasons stated above, we will not delve

into the correctness of that determination.

A-14

244 F.3d 51, 59 (1st Cir. 2001) (finding no basis in lan-

guage of Telecommunications Act to require formal find-

ings of fact and conclusions of law from local zoning

board); AT&T Wireless PCS, Inc. v. City of Virginia Beach,

155 F.3d 423, 429-30 (4th Cir. 1998) (stating Congress

knows how to require formal findings when it so desires

as evidenced by Administrative Procedure Act and cer-

tain provisions of Telecommunications Act). Moreover,

the FAA’s approval of the Initiative does not constitute an

agency rulemaking or adjudicative action for which the

Administrative Procedure Act requires formal findings.

See 5 U.S.C. §§ 553(a)(2), 554(a). Most important, the

record here amply demonstrates the FAA did, in fact,

believe the Initiative to be necessary in the interest of

national defense, and articulated the reasons why. Peti-

tioners’ arguments to the contrary simply are not sup-

ported by applicable law or the record.

Limiting Military Airspace

Consistent with the purpose of the Federal Aviation

Act to “encourage and allow maximum use of the naviga-

ble airspace by civil aircraft,” 49 U.S.C. § 40103(b)(3);, the

FAA is instructed to minimize the amount of airspace

designated as special use airspace and to limit military

airspace to the area actually needed for training. See e.g.,

FAA Order 7610.4J { 9-1-4 (stating that special use air-

space designations “shall be limited to the minimum

number of areas necessary,” and special use area activa-

tion “shall be limited to the minimum area, altitude, and

time required for the activity/mission”). Petitioners

argue the FAA violated its own policy. They further assert

“the FAA appears to have improperly delegated [its

— o~-

A-15

authority to limit the amount of special use airspace] to

the military.” The record belies these claims.

The record shows the FAA reduced the special use

airspace the ANG initially requested. Some reductions

were incorporated at the FAA’s request prior to the ANG

issuing its record of decision. Others were incorporated

as the FAA formally reviewed the ANG record of decision

and National Environmental Policy Act documents. The

FAA further restricted the hours military training could

take place within the special use areas. This evidence that

the FAA independently reviewed and modified the Initia-

tive consistent with established FAA policy to minimize

the area, altitude and time allotted to military training

defeats Petitioners’ unsubstantial claims the agency vio-

lated that policy and improperly delegated its authority.®

8 Ina related argument, Petitioners assert the FAA failed to

keep factual data on the ANG’s Colorado airspace usage.

Petitioners believe the FAA improperly deferred to the ANG’s

inaccurate sortie counts - “[a] sortie consists of the take-off, all

the training events performed while in flight, and landing of a

single aircraft” - which made “the Initiative falsely appear to be

the ‘environmentally preferred alternative.’ ” According to

Petitioners, this “reliance . . . on conjecture rather than factual

data renders any ‘implicit’ determination that the Initiative

contains the minimum areas and airspace use necessary entirely

unreliable, in violation of FAA regulations.”

In support of these allegations, Petitioners cite two

documents - an informal, undated memo to “Doug” from

“Kent” regarding ANG flying hours, and a table of 1992-93

baseline sortie data. These isolated references to the use of

estimations or averages to quantify certain subsets of special

uses (i.e., sorties and MTRs) for certain years (FY 91, FY 93, FY

94), without any context to determine if or how the FAA used

this information, simply do not support the proposition that the

A-16

Minimum Flight Altitudes

Minimum safe altitudes are established by regula-

tion. 14 C.F.R. § 91.119. The general flight rule regulation

specifically proscribes the operation of aircraft “closer

than 500 feet to any person, vessel, vehicle, or structure”

Over open water or sparsely populated areas; the opera-

tion of aircraft closer than 500 feet above the surface in

areas other than congested areas; and the operation of

aircraft below “an altitude of 1,000 feet above the highest

obstacle within a horizontal radius of 2,000 feet of the

aircraft” over “any congested area of a city, town or

settlement, or over any open air assembly of persons.” 14

C.F.R. §§ 91.119(b), (c). The Final Environmental Impact

Statement indicates low altitude airspace within the Ini-

tiative will “be charted to 300 feet above ground level,

but not flown lower than 500 feet above ground level

except in national emergencies or special training

requirements.” Petitioners cite this statement as evidence

the FAA violated its own regulations by charting airspace

below the minimum altitudes prescribed by 14 C.FR.

§ 91.119. Citing FAA Order 7610.4J ¥ 11-4-3, Petitioners

further claim the FAA has unlawfully delegated its power

to define minimum safe altitudes to the military. Neither

claim withstands scrutiny.

FAA utterly failed to monitor the ANG’s use of Colorado

airspace in accordance with FAA regulations and established

policy.

It is more accurate to characterize Petitioners’ complaints

regarding the sortie data as a challenge to the adequacy of the

Final Environmental Impact Statement. To the extent the

baseline sortie data is relevant to Petitioners’ National

Environmental Policy Act claims, it is discussed infra.

A-17

First, as Respondents correctly point out, 14 C.F.R.

§ 91.119 does not set an absolute minimum altitude of 500

feet. Indeed, the regulation specifies no minimum alti-

tude for flight over open water or sparsely populated

areas so long as the aircraft is no “closer than 500 feet to

any person, vessel, vehicle, or structure.” 14 C.F.R.

§ 91.119(c). Most MOAs and MTRs are located in sparsely

populated areas, thus allowing a military pilot to fly

below an altitude of 500 feet in a remote MTR or MOA

and still be within navigable airspace, under the condi-

tions permitted by the regulation.

Second, we agree with Respondents this is not the

appropriate time or place for Petitioners to challenge the

legality of FAA Order 7610.4J, which addresses all “Spe-

cial Military Operations,” and is not specifically related

to the FAA’s approval of the Initiative. We also agree with

Respondents that to the extent FAA Order 7610.4) permits

the military to establish appropriate altitudes, it does so

under very narrow circumstances and does not constitute

the wholesale abrogation of authority Petitioners suggest.

Contrary to granting blanket permission to the military to

disregard minimum safe altitude regulations, Order

7610.4] holds military pilots responsible for adhering to

the provisions of 14 C.FR. § 91.119 when flying instru-

ment rule (“IR”) and visual flight rule (“VFR”) routes.

FAA Order 7610.4J UJ 11-6-7, 11-7-3(c). Only in the event

of an aircraft systems failure may the military establish

an altitude suitable for flight in instrument meteorologi-

cal conditions (the IFR altitude) “contrary to 14 C.E.R. [§]

91.119.” FAA Order 7610.4J { 11-4-3.b. “In no case will

flight operations be conducted at altitudes less than those

specified in 14 C.F.R. § 91.177 [Minimum altitudes for IFR

A-18

operations.].” Id. These circumstances provide no basis

for setting aside the FAA’s decision approving the Initia-

tive.

Finally, notwithstanding Congress’ general intent

that a civilian agency — the FAA - regulate navigable

airspace, see 49 U.S.C. § 40103(b), Congress expressly

gave the FAA broad authority to grant exemptions from

safety regulations, including minimum safe altitudes,

“when the Administrator decides the exemption is in the

public interest.” 49 U.S.C. § 40109(b). Petitioners have

failed to show how the FAA has exceeded that authority

if indeed it has exempted the ANG from the general

minimum altitude requirements.

For all these reasons, within the limited permissible

scope of appellate review, we conclude the FAA has not

violated the Federal Aviation Act, FAA regulations or the

Administrative Procedure Act by approving the Initia-

tive.

National Environmental Policy Act Claims

As we have stated on numerous occasions, the

National Environmental Policy Act “prescribes the neces-

sary process” by which agencies must take a “hard look

at the environmental consequences of proposed actions

utilizing public comment and the best available scientific

A-19

information;”? it “does not mandate particular results.”

Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1171-72

(10th Cir. 1999) (quotation marks and citations omitted);

Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515,

1521-22 (10th Cir. 1992). In other words, the National

Environmental Policy Act ” ‘prohibits uninformed -

rather than unwise - agency action.’ “ Colorado Envtl.

Coalition, 185 F.3d at 1172 (quoting Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 351 (1989)).

9 The National Environmental Policy Act directs all federal

agencies to:

on proposals for legislation and other major Federal

actions significantly affecting the quality of the

human environment, a detailed statement by the

responsible official on -

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

42 U.S.C. § 4332(2)(C) (listing the requirements for an

environmental impact statement); see also 40 C.F.R. § 1500 et seq.

(Council on Environmental Quality regulations expanding upon

the appropriate form and content of an environmental impact

statement.)

A-20

Petitioners’ National Environmental Policy Act

claims generally attack the adequacy of the Final

Environmental Impact Statement, prepared by the ANG

and adopted by the FAA.?° Consistent with the intended

purpose of the Act to prescribe a process by which agen-

cies can make informed decisions, when we review the

adequacy of a final environmental impact statement

we merely examine “whether there is a reason-

able, good faith, objective presentation of the

topics [the National Environmental Policy Act]

requires an [environmental impact statement] to

cover.” Holy Cross, 960 F.2d at 1522 (quotation

marks and citation omitted). Our objective is not

to “fly speck” the environmental impact state-

ment, but rather, to make a “pragmatic judg-

ment whether the [environmental impact

statement]’s form, content and preparation fos-

ter both informed decision-making and

informed public participation.” Oregon Envtl.

Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.

1987) (quotation marks and citation omitted).

Colorado Envtl. Coalition, 185 F.3d at 1172.

Impact Analysis

“An environmental impact statement must analyze

not only the direct impacts of a proposed action, but also

the indirect and cumulative impacts of ‘past, present, and

reasonably foreseeable future actions regardless of what

agency (Federal or non-Federal) or person undertakes

10 “An agency may adopt a Federal draft or final envi-

ronmental impact statement . . . provided that the statement

... meets the standards for an adequate statement under [the

Council on Environmental Quality] regulations.” 40 C.F.R.

§ 1506.3(a).

ee ee ee ee

A-21

such other actions.’” Id. at 1176 (quoting 40 C.F.R.

§ 1508.7); see also 40 C.F.R. §§ 1508.8 (including ecological,

aesthetic, historical, cultural, economic, social and health

impacts) and 1508.25(a)(2), (c). Petitioners claim the envi-

ronmental impact statement studying the Initiative failed

to adequately address noise impacts; the cumulative

impacts of all U.S. military, foreign military and non-

military overflights; impacts to existing and proposed

wilderness areas and national parks; the nationwide

impacts of low-level military aircraft operations; and the

socioeconomic impacts of overflights. We examine the

merits of each of these claims, combining our discussion

of the cumulative and nationwide impacts.

Noise

Petitioners assert the ANG employed a flawed meth-

odology that resulted in severely understated noise

impacts. They support this claim, in part, with a collec-

tion of comments from United States Air Force noise

analyses unrelated to the Initiative, including a 1987

Environmental Noise Assessment for Aircraft Training

Routes and a December 1990 “Preliminary Draft” of a

“Generic Environmental Impact Statement for Air Force

Low Altitude Flying Operations.”™

The administrative record establishes that the ANG

and FAA performed a detailed analysis of the Initiative’s

potential noise impacts, using the Onset Rate Adjusted

11 The Air Force never adopted this latter document as

final. Moreover, it is not a part of the administrative record in

this case.

A-22

Monthly Day-Night Average Sound Level methodology -

a cumulative sound metric that accounts for the sound

level, duration, and frequency of noise producing events,

and is “generally designed to determine the potential of

noise to interfere with human activity.” Morongo Band of

Mission Indians v. Federal Aviation Admin., 161 F.3d 569,

577 n.2 (9th Cir. 1998). The agencies also employed the

“sound exposure level” (SEL) metric to represent the

intensity and duration (i.e., sound impact) of a specific

noise event such as a single aircraft overflight. The Final

Environmental Impact Statement illustrates that these

particular methodologies are well-established and widely

accepted.

It is true, not all commenters agreed with the ANG’s

and FAA’s methodology or conclusion the Initiative

would result in no significant noise impact. The Final

Environmental Impact Statement considered these com-

ments and incorporated them into the final analysis. For

example, the agencies responded to concerns over using a

sixty-five decibel noise threshold in rural areas by lower-

ing that threshold to fifty-five decibels in certain areas

and by expanding the noise criteria used to evaluate

impacts in each affected area. The Final Environmental

Impact Statement also included a discussion of the con-

cept of natural quiet as a resource, additional information

concerning the relative noise impacts in rural settings,

and maps displaying noise contours for airspace

impacted by the Initiative. The conclusions reached in the

Final Environmental Impact Statement are based on data

gathered by, and the reasoned opinions of, recognized

experts. As we have stated before, “agencies are entitled

to rely on their own experts so long as their decisions are

A-23

not arbitrary and capricious.” Colorado Envtl. Coalition,

185 F.3d at 1173 n.12; see also Morongo Band of Mission

Indians, 161 F.3d at 577; City of Bridgeton v. Federal Aviation

Admin., 212 F.3d 448, 459 (8th Cir. 2000) (recognizing, in

upholding FAA’s noise methodology used to analyze

impacts of proposed airport expansion, “(t]he agency, not

a reviewing court, is entrusted with the responsibility of

considering the various modes of scientific evaluation

and theory and choosing the one appropriate for the

given circumstances” (quotation marks and citations

omitted)), cert. denied, 121 S.Ct. 855 (2001).

As so often is the case in disputes concerning the

potential environmental impacts of a project, Petitioners’

claim boils down to a disagreement over scientific opin-

ions and conclusions. While we appreciate Petitioners’

concerns over noise impacts, and do not ignore the fact

contradictory evidence and data may well exist, “the

mere presence of contradictory evidence does not invali-

date the [a]gencies’ actions or decisions.” Wyoming Farm

Bureau Fed’n, 199 F.3d at 1241. We cannot displace the

agencies’ choice between two conflicting views, even if

we would have made a different choice had the matter

been before us de novo. Arapahoe County Pub. Airport

Auth., 242 F.3d at 1218. Petitioners’ technical objections

do not demonstrate the ANG’s and FAA’s noise impact

analysis was unsupported by substantial evidence in the

administrative record, inadequate to foster informed pub-

lic participation and decision-making, or otherwise arbi-

trary and capricious. Nor do the objections support

Petitioners’ belated argument that a Supplemental Envi-

ronmental Impact Statement is necessary. This claim

therefore provides no basis for setting aside the Final

A-24

Environmental Impact Statement. See City of Bridgeton,

212 F.3d at 460 (citing cases in which courts have upheld

the FAA’s discretion to choose its noise impact methodol-

ogy).

Cumulative/Nationwide

Petitioners further challenge the adequacy of the

Final Environmental Impact Statement insofar as it

addresses cumulative impacts. They argue the ANG and

FAA failed to analyze all impacts of both military

(domestic and foreign) and non-military overflights in

areas affected by the Initiative. In addition, they claim the

ANG and FAA were required to prepare a comprehen-

sive, programmatic environmental impact statement “to

consider the impact of the nationwide proliferation of

military airspace” and low-level military aircraft opera-

tions.

While we do not find the cumulative impact analysis

to be a model of clarity or thoroughness, the Final Envi-

ronmental Impact Statement does (1) list anticipated sor-

ties and time spent at each altitude band by the 140th,

27th, and 150th fighter wings, as well as “other” military

aircraft; (2) apply the aircraft type and flying altitude

data in evaluating the noise impacts; and, perhaps most

important, (3) explain why the number of sorties are

reasonably considered the key component of the cumula-

tive impact analysis. The Final Environmental Impact

Statement further explains how the noise prediction

methodology accounts for both Initiative Activity and

non-Initiative Activity in each area likely to be affected

by the activities in a particular MOA or MTR, and how

A-25

the agencies derived and applied a worst-case analysis

based on the maximum number of aircraft operations

within each region of influence. Commercial and non-

military flight activity is neither related to nor dependent

on the Initiative - Petitioners make no showing [sic] such

activities, and thus any noise impacts from such activ-

ities, are likely to increase as a result of the Initiative. As

such, those activities need not be analyzed as direct or

indirect cumulative impacts caused by the Initiative. See

Allison v. Department of Transp., 908 F.2d 1024, 1031 (D.C.

Cir. 1990); C.A.R.E. Now, Inc. v. Federal Aviation Admin.,

844 F.2d 1569, 1574-75 (11th Cir. 1988). As to the possible

impact of more military pilots flying off course (i.e., pilot

noncompliance or misconduct), it was noted recent com-

pliance had been “extremely good,” and the agencies

identified and implemented a mitigation measure to min-

imize any such impact. The National Environmental Pol-

icy Act requires nothing more. See Park County Resource

Council v. United States Dep’t of Agric., 817 F.2d 609, 621-22

(10th Cir. 1987), overruled on other grounds by Village of Los

Ranchos de Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.

1992). For these reasons, we hold the cumulative impact

analysis in the present case is legally sufficient. Cf. Kleppe

v. Sierra Club, 427 U.S. 390, 414 (1976) (“determination of

the extent and effect of [cumulative impacts on range of

resources], and particularly identification of the geo-

graphic area within which they may occur, is a task

assigned to the special competency of the appropriate

agencies”).

We further hold the Initiative is not a “connected

action,” triggering the need for a programmatic or nation-

wide environmental impact analysis. Put simply, projects

A-26

that have “independent utility” are not “connected

actions” under 40 C.F.R. § 1508.25(a)(1)(iii). The adminis-

trative record makes clear the Initiative has independent

utility. The Initiative was designed specifically to provide

the necessary airspace for the 140th Tactical Fighter Wing

of the Colorado ANG to be able to train with the F-16

fighter jet under realistic conditions, and to make changes

in commercial aircraft arrival and departure corridors

required for operation of the new Denver International

Airport. The record gives no indication, and Petitioners

cite no evidence, of a clear nexus between the Initiative

and other military airspace proposals across the Nation.

In the absence of such evidence, it is neither unwise nor

irrational to allow the Initiative to go forward indepen-

dent of other special use airspace designations or low-

level military flight training programs. See Airport Neigh-

bors Alliance, Inc., 90 F.3d at 430-31 (holding no cumula-

tive environmental impact statement was required where

no “inextricable nexus” existed between runway upgrade

and airport development master plan, and where pro-

posed runway upgrade was independent from other Mas-

ter Plan components); see also Morongo Band of Mission

Indians, 161 F.3d at 579-80; 46 Fed. Reg. 18026, 18033 (Mar.

23, 1981) (explaining that an area-wide or overview envi-

ronmental impact statement is “useful when similar

actions, viewed with other reasonably foreseeable or pro-

posed agency actions, share common timing or geogra-

phy”).

Wilderness Areas, National Monuments

and National Parks

Petitioners contend the ANG and FAA failed to ade-

quately analyze the Initiative’s impacts on the unique

A-27

natural quiet, aesthetic, visual and recreational resources

associated with certain wilderness areas, wilderness

study areas and proposed national parks underlying or

immediately adjacent to the Initiative.12 They support this

claim with comments from the Bureau of Land Manage-

ment, Department of Interior and other agencies, expres-

sing concern over potential impacts the Initiative might

have in these sensitive areas and criticizing the ANG and

FAA for not fully analyzing those impacts. According to

Petitioners, by approving the Initiative, the ANG and

FAA have preemptively destroyed the wilderness quali-

ties in these sensitive areas, and have further preempted

the authority of Congress and the President to designate

additional sensitive areas as wilderness areas in the

future.

We begin by noting that the National Environmental

Policy Act requires agencies preparing environmental

impact statements to consider and respond to the com-

ments of other agencies, not to agree with them. See 40

C.F.R. § 1503.4; Citizens Against Burlington, Inc. v. Busey,

938 F.2d 190, 201 (D.C. Cir. 1991). The administrative

record demonstrates the ANG and FAA considered the

concerns expressed by the public and other agencies

12 Petitioners refer specifically to the Great Sand Dunes

National Monument, the Florissant Fossil Beds National

Monument, the Bent’s Old Fort National Monument, the Sangre

de Cristo Wilderness, and the Greenhorn Mountains

Wilderness. The parties apparently agree the actual and

potential monuments, parks and wilderness areas are located

beneath or adjacent to the La Veta MOA, Airburst A MOA,

VR-413 and IR-409.

A-28

regarding potential impacts on wilderness and other sen-

sitive areas prior to concluding any such impacts would

be negligible. It is certainly Petitioners’ prerogative to

disagree with that conclusion. However, their emotional

assessment of the Initiative’s probable impacts on wilder-

ness areas, national monuments and national parks, and/

or the ability to designate and manage additional such

areas in the future, does not support a National Environ-

mental Policy Act claim.

The National Environmental Policy Act requires only

that the agencies make a reasonable, good faith effort to

analyze environmental impacts. The record in this case

verifies that the agencies identified possible noise

impacts on sensitive areas, including wilderness areas,

parks and monuments, and reasonably determined, after

considering public and agency comment alike, that any

impact on these areas would be insignificant, because (1)

low-level military training overflights took place in each

of the affected airspaces before the Initiative; (2) even

with implementation of the Initiative, none of the affected

airspaces would experience cumulative noise levels

greater than the 55 dB standard considered ideal by the

Environmental Protection Agency; and (3) the ANG

adopted specific measures, such as avoiding overflights

of wilderness when possible and flying a minimum of

2,000 feet above ground level, to mitigate any impact on

sensitive areas. We therefore uphold the ANG’s and

FAA’s environmental impact analysis as it pertains to

wilderness areas, national monuments and national

parks.

A-29

Socioeconomic and Growth

Petitioners argue the socioeconomic data in the Final

Environmental Impact Statement is outdated and inaccu-

rate, in violation of 40 C.F.R. §§ 1500.1(b), 1502.24 (requir-

ing agencies to insure the professional and scientific

integrity of environmental information). They cite extra-

record 1999 census data and Eric J. Nickell, The Colorado

Airspace Initiative and Economic Impacts on Custer, Huerfano

and Saguache Counties, Colorado, June, 1993 (Nickell

Study), as primary support for their contention the Initia-

tive’s socioeconomic impact will be much greater than

that identified in the Final Environmental Impact State-

ment.

The Final Environmental Impact Statement was pub-

lished in August 1997. Petitioners can hardly criticize that

document for failing to utilize 1999 census data. They

have neither argued nor shown the agencies must pre-

pare a supplemental environmental impact statement

based on updated census information. See Colorado Envtl.

Coalition, 185 F.3d at 1177-78 (explaining the National

Environmental Policy Act does not “require a supplemen-

tal environmental impact statement every time new infor-

mation comes to light. A supplemental environmental

impact statement comes into play only if the new infor-

mation is sufficient to show [the proposed action] will

affect the quality of the human environment in a signifi-

cant manner or to a significant extent not already consid-

ered.” (Quotation marks and citations omitted.)).

Moreover, the record reveals that both the ANG and the

Air Force reviewed the Nickell Study, but discounted it as

unreliable. The agencies instead relied on the previously

A-30

described noise impact analysis vis-a-vis impacts on resi-

dential and recreational land use; relevant population,

housing, employment and earnings data; and compara-

tive residential valuation data and tourism earnings data

in each region of influence. The ANG and FAA are enti-

tled to rely on their own experts so long as their decision

was not arbitrary and capricious. Wyoming Farm Bureau

Fed'n, 199 F.3d at 1241. To repeat, “the mere presence of

contradictory evidence does not invalidate the [a]gencies’

actions or decisions,” id., and we will not displace the

ANG'’s and FAA’s choice between conflicting views, Arap-

ahoe County Pub. Airport Auth., 242 F.3d at 1218.

We recognize Petitioners do not agree with the agen-

cies’ conclusions concerning the Initiative’s potential

socioeconomic impacts. However, the agencies’ socio-

economic impact analysis is supported by substantial evi-

dence in the administrative record, and was adequate to

foster informed public participation and decision-mak-

ing. The socioeconomic impact analysis is neither arbi-

trary nor capricious.

Keasonable Alternatives

Petitioners cizim the alternatives analysis in the Final

Environmental imypact Statement fails in two ways. First,

they argue the Final Environmental Impact Statement

does not include a “true” no-action alternative; and sec-

ond, they argue the Final Environmental Impact State-

ment does not consider other reasonable alternatives.

To comply with the National Environmental Policy

Act and its implementing regulations, the ANG and FAA

—-.-o eo

A-31

are required to rigorously explore all reasonable alterna-

tives to the Initiative, including a “no-action” alternative,

in comparative form, and give each alternative substan-

tial treatment in the environmental impact statement. See

40 C.F.R. §§ 1502.1, 1502.14(a-b), (d); 42 U.S.C.

§§ 4332(2)(C)(iii) & (E); Colorado Envtl. Coalition, 185 F.3d

at 1174. The National Environmental Policy Act does not,

however, “require agencies to analyze the environmental

consequences of alternatives it has in good faith rejected

as too remote, speculative, or . . . impractical or ineffec-

tive. What is required is information sufficient to permit a

reasoned choice of alternatives as far as environmental

aspects are concerned.” Colorado Envtl. Coalition, 185 F.3d

at 1174 (quotation marks and citations omitted). We

employ the “rule of reason” to ensure the ANG’s Final

Environmental Impact Statement contains sufficient dis-

cussion of the relevant issues and opposing viewpoints to

enable both the ANG and FAA to take a hard look at the

environmental impacts of the Initiative and its alterna-

tives, and to make a reasoned decision. Id. “The rule of

reason guides both the choice of alternatives as well as

the extent to which the Environmental Impact Statement

must discuss each alternative.” American Rivers v. Federal

Energy Reg. Comm'n, 201 F.3d 1186, 1200 (9th Cir. 1999)

(quotation marks and citation omitted).

As to the adequacy of the “no-action alternative,”

Petitioners claim “the ANG has been unlawfully and

increasingly undertaking major federal action that has

never been properly subject to environmental review

since it began low-level overflights in Colorado decades

ago.” According to Petitioners, the ANG and FAA inap-

propriately included this “unlawful activity” in their

A-32

assessment of the military’s current airspace use, and that

a “true” no-action alternative may only reflect the

impacts of lawful activity. They further criticize the sortie

count data in the no-action alternative, claiming it to be

“far in excess of any studied or anticipated in any pre-

vious environmental analysis.” Petitioners cite no appli-

cable legal or factual authority for these propositions, and

apparently misunderstand the intended scope and pur-

pose of a no-action alternative.

In requiring consideration of a no-action alternative,

the Council on Environmental Quality intended that

agencies compare the potential impacts of the proposed

major federal action to the known impacts of maintaining

the status quo. See Association of Pub. Agency Customers,

Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1188 (9th

Cir. 1997); 46 Fed. Reg. at 18027. In other words, the

current level of activity is used as a benchmark. 46 Fed.

Reg. at 18027. This is exactly what the ANG and FAA did.

The Final Environmental Impact Statement demonstrates

the ANG and FAA compared the impacts of the original

proposal and preferred alternative to the impacts of con-

tinuing to fly in the existing MTRs and MOAs. This. is all

the law requires. The requirement to consider a no-action

alternative does not provide Petitioners a vehicle in

which to pursue allegations that past ANG or FAA

actions received insufficient environmental analysis. The

time has passed to challenge past actions.}5

13 The ANG and FAA did in fact consider the alternative of

eliminating the Colorado ANG or existing military airspace in

Colorado altogether, but found that alternative to be

unreasonable. To the extent Petitioners are attempting to

A-33

Turning to the adequacy of the range of alternatives

considered, Petitioners claim (1) “unstudied” increases in

military airspace use over the last two decades pre-

empted consideration of other objectively reasonable

alternatives; (2) the three alternatives considered were

“nearly identical,” thus rendering the analysis “legally

inadequate;” and (3) the FAA inappropriately committed

resources, and thereby prejudiced the selection of alterna-

tives, before making a final decision. These claims, too,

are easily dismissed.

Petitioners’ claim that “unstudied” (and therefore

“unlawful”) increases in military airspace use over the

last two decades precluded any rigorous analysis of

reduced military use alternatives is really another

attempt to challenge the legality of past actions. As stated

above, the time has passed for such claims.

The Final Environmental Impact Statement identifies

seven alternatives the agencies considered: (1) the origi-

nal proposal; (2) the preferred alternative; (3) the no-

action alternative; (4) the use of other MOAs and MTRs;

(5) the elimination of the Colorado Air National Guard;

(6) the elimination of existing military airspace in Colo-

rado; and (7) the use of aircraft flight simulators. Apply-

ing the rule of reason to the question of whether this was

a sufficiently broad/diverse range of alternatives for con-

sideration, we look first to the intended purpose of the

proposed action. See Colorado Envtl. Coalition, 185 F.3d at

1174-75. The primary purpose of the Initiative is to

challenge that determination, we consider the issue below in

our discussion of the range of alternatives.

A-34

develop adequate training opportunities for Colorado

ANG pilots within the distance limitations specified by

the United States Air Force’s training standards. The

Final Environmental Impact Statement specifically dis-

cusses the training criteria against which each alternative

was evaluated, and then explains, in some detail, that |

alternatives four through seven were eliminated from

further detailed consideration after preparation of the

Draft Environmental Impact Statement because none

“allowed military flying units to meet their total training

requirements” — i.e., satisfy the very purpose of the Initia-

tive. The three remaining alternatives, which reflect var-

ious military airspace configurations and usage within

applicable training criteria parameters, are evaluated and

compared throughout the Final Environmental Impact

Statement.

The National Environmental Policy Act requires only

that reasonable alternatives be evaluated. 42 U.S.C.

§§ 4332(2)(C)(iii) and (E); 40 C.F.R. §§ 1502.1, 1502.14(a).

Alternatives that do not accomplish the purpose of an

action are not reasonable. Colorado Envtl. Coalition, 185

F.3d at 1174-76; see also City of Bridgeton, 212 F.3d at 456.

Petitioners have put forth no record evidence disputing

the existence or reasonableness of the United States Air

Force training criteria, including the training distance

limitations, as applied to the Colorado ANG; nor have

they identified an alternative the ANG and FAA failed to

consider which satisfies these criteria. Because the admin-

istrative record demonstrates the ANG and FAA defined

the objectives of the Initiative, identified alternatives that

would accomplish those objectives, and took a hard, com-

parative look at the environmental impacts associated

A-35

with each reasonable alternative, Petitioners’ challenge to

the adequacy of the alternatives analysis fails.

Finally, Petitioners’ claim that the FAA implemented

the Initiative prior to adopting and approving the Final

Environmental Impact Statement is not supported by the

record. The FAA documents Petitioners cite as evidence

the FAA implemented the Initiative prior to issuing the

Record of Decision, make clear no final action would take

place on MTR modifications until “any changes dictated

by the Environmental Division’s on-going environmental

review can be addressed as a complete package,” and the

effective date for the proposed MOA modifications

would coincide with the final approval of the proposed

MTR modifications.

For all these reasons, we conclude the Final Environ-

mental Impact Statement prepared by the ANG and

adopted by the FAA satisfies National Environmental

Policy Act standards.

Constitutional Claims

Fifth Amendment

Petitioners ask this court to enjoin implementation of

the Initiative, claiming it “results in an unauthorized

taking of private property without due process or the

prospect of compensation.”"4 According to Petitioners,

the approved use of the airspace above their properties is

“unauthorized” because (1) the Initiative itself is being

14 Petitioners expressly disavow making a claim for

compensation under the Fifth Amendment. They “seek[ ] only

an injunction.”

A-36

implemented illegally - without a finding that it is neces-

sary to the national defense, where substantial evidence

shows that it is in fact contrary to the interest of the

national defense, and in the absence of National Environ-

mental Policy Act compliance; (2) the FAA violated its

own regulations establishing minimum altitudes of navi-

gation at 500 feet from any person or structure; and (3)

the FAA unlawfully delegated its statutory responsibility

for setting minimum altitudes of flight to the military.

The Fifth Amendment does not preclude the taking

of private property for public use. Rather, it requires the

government to justly compensate the private property

owner for any authorized taking. See Preseault v. Interstate

Commerce Comm’‘n, 494 U.S. 1, 11 (1990). Injunctive relief

is not available under the Fifth Amendment absent an

allegation the purported taking is unauthorized by law.

See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016 (1984)

(“Equitable relief is not available to enjoin an alleged

taking of private property for a public use, duly autho-

rized by law, when a suit for compensation can be

brought against the sovereign subsequent to the taking.”)

“Unauthorized” conduct in the takings context equates to

the ultra vires actions of an agency, i.e., action explicitly

prohibited or outside the normal scope of agency respon-

sibilities. An agency may act within its authority even if

its action is later determined to be legally erroneous. See

Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1523 (D.C.

Cir. 1984), vacated on other grounds by 471 U.S. 1113 (1985);

Del-Rio Drilling Programs Inc. v. United States, 146 F.3d

1358, 1362-63 (Fed. Cir. 1998).

Arguably, if a government agency errs, i.e., exceeds

its jurisdiction, violates a statute, or acts arbitrarily or

A-37

capriciously, it should not be liable for a “taking” under

the Fifth Amendment. See, e.g., John D. Echeverria, Tak-

ings and Errors, 51 Ala. L. Rev. 1047, 1047-48 (2000). We

find intriguing the notion that takings involving erro-

neous government actions cannot be takings for “public

use” within the meaning of the Takings Clause, see id.;

however, we need not debate or decide that issue here.

For the reasons stated above, we conclude the Initiative

did not violate the Federal Aviation Act, FAA regulations,

or the National Environmental Policy Act. Moreover,

Petitioners fail to demonstrate the FAA or ANG exceeded

their authority under the relevant laws or regulations.

Consequently, Petitioners’ claim the Initiative constitutes

an “unauthorized” or “unlawful” taking cannot stand. Cf.

Preseault, 494 U.S. at 13 (finding clear statutory authority

for agency action giving rise to Fifth Amendment claims,

Supreme Court declined to decide what types of official

authorization, if any, are necessary to create Fifth Amend-

ment liability, and whether a taking had occurred, instead

leaving petitioners to pursue available Tucker Act rem-

edy). Their request for injunctive relief on Fifth Amend-

ment grounds is denied.

Third Amendment

Petitioners insist they have a Third Amendment right

“to refuse military aircraft training in airspace within the

immediate reaches of their property,” and that military

overflights occurring in the immediate reaches of their

A-38

property during peacetime, and without their consent,

“are per se unconstitutional.”15 We disagree.

Judicial interpretation of the Third Amendment is

nearly nonexistent. The crux of any such claim, however,

is whether the nature of the asserted property interest

falls “within the ambit of the Third Amendment’s pro-

scription against quartering troops ‘in any house, without

the consent of the Owner.’” Engblom v. Carey, 677 F.2d

957, 961-62 (2d Cir. 1982). Citing Engblom v. Carey, Peti-

tioners argue that “[bJecause a private party has rights to

the airspace above his or her property . . . the United

States military may not appropriate such property inter-

ests during peacetime without the property owners’ con-

sent.” This argument borders on frivolous.

In Engblom, the Second Circuit held that “property-

based privacy interests protected by the Third Amend-

ment are not limited solely to those arising out of fee

simple ownership but extend to those recognized and

permitted by society as founded on lawful occupation or

possession with a legal right to exclude others.” 677 F.2d

at 962. On that basis, and referring to Fourth Amendment

“legitimate expectation of privacy” doctrine by analogy,

the court reversed the summary dismissal of a Third

Amendment claim raised by striking correction officers

who, without their consent, were displaced from staff

housing by national guard members the State of New

15 The Third Amendment to the United States Constitution

provides “[n]o Soldier shall, in time of peace be quartered in any

house, without the consent of the Owner, nor in time of war, but

in a manner to be prescribed by law.” U.S. Const. Amend. III.

A-39

York brought in to staff the prison. Id. at 962-64. Accord-

ing to the majority, the rooms in which the striking cor-

rection officers claimed a Third Amendment property

interest were, for all intents and purposes, their homes.

Id. at 963. The striking officers were evicted from those

rooms in order to quarter national guardsmen sent to

staff the prison during the strike. These facts obviously

presented a much closer question than Petitioners present

here.

The property Petitioners seek to protect is the air-

space above their land. Taken to its logical extreme, Peti-

tioners would have the United States military seek

consent from every individual or entity owning property

over which military planes might fly, and then design its

training exercises to utilize only that airspace for which

permission was granted, or else risk Third Amendment

liability. We simply do not believe the Framers intended

the Third Amendment to be used to prevent the military

from regulated, lawful use of airspace above private

property without the property owners’ consent. See id. at

966-67 (Kaufman, Circuit Judge, concurring in part and

dissenting in part) (summarizing historical origin of

Third Amendment). Fourth Amendment principles do

not instruct to the contrary. Petitioners’ Fourth Amend-

ment rights would be violated only if society is willing to

recognize their subjective expectation of privacy in the

airspace above their property as reasonable. See California

v. Ciraolo, 476 U.S. 207, 211-12 (1986). It is not reasonable

to expect privacy from the lawful operation of military

aircraft in public navigable airspace. See United States v.

Causby, 328 U.S. 256, 261 (1946) (acknowledging that

while a Fifth Amendment remedy might exist if flights

A-40

over private property directly and immediately interfeze

with the enjoyment and use of the land, Congress has

declared “[t)he air is a public highway” and “[c]jommon

sense revolts at the idea” that aircraft operators would be

subject to trespass suits based on common law notions of

property ownership extending to the periphery of the

universe). Accordingly, Petitioners’ Third Amendment

claim fails.

CONCLUSION

Because we hold (1) the FAA did not violate the

Fede:al Aviation Act, FAA regulations or the Administra-

tive Procedure Act; (2) the Final Environmental Impact

Statement for the Initiative satisfied the National Envi-

ronmental Policy Act; and (3) Petitioners failed to estab-

lish a violation of either the Fifth or Third Amendments

to the United States Constitution, we deny the Petition

for Review and AFFIRM the challenged agency orders.

A-41

[Federal Register, Vol. 64, No. 194,

Thursday, October 7, 1999]

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Record of Decision for the Adoption of the Colorado

Airspace Initiative Prepared by the Air National Guard

Acency: Federal Aviation Administration.

Action: Record of decision.

Summary: The Federal Aviation Administration (FAA),

after carefully reviewing the Final Environmental Impact

Statement (FEIS) prepared by the Air National Guard

(ANG), announces its decision to adopt the ANG FEIS

and implement the requested Special Use Airspace

changes to the National Airspace System in and around

the state of Colorado. This airspace initiative is known as

the Colorado Airspace Initiative (CAI).

For FurTHER INFORMATION Contact: Elizabeth Graffin,

Environmental Specialist, Environmental Programs Divi-

sion (ATA-300), Office of Air Traffic Airspace Manage-

ment, Federal Aviation Administration, 800

Independence Avenue, SW, Washington, DC 20591 (202)

267-3075.

SUPPLEMENTARY INFORMATION: As provided in 40 CFR

1506.3 and FAA Order 1050.ID, “Policies and Procedures

for Considering Environmental Impacts,” the FEIS of

another Federal Agency may be adopted in accordance

with the procedures in 40 CFR 1506.3. Under 40 CFR

1506.3(b), if the actions covered by an EIS and the actions

proposed by another Federal agency are substantially the

A-42

same, the agency adopting another agency’s statement is

not required to recirculate it except as a final statement.

The FAA has determined that the proposed action of

modifying existing and establishing new military training

airspace areas over the State of Colorado is substantially

the same as the actions considered in the ANG’s FEIS.

FAA staff has independently reviewed the ANG FEIS and

has determined that it is current and that the FAA NEPA

procedures have been satisfied. FAA has determined that

the FEIS adequately assesses and discloses the potential

environmental impacts of the proposed action. FAA staff

concluded that, after mitigation measures are taken into

consideration, the existing airspace can be modified and

new military training airspace can be established with no

significant impacts on environmental resources.

The ANG has requested this action to respond to

changers [sic] in readiness training requirements. The

requirements are reflected in specific United States Air

Force regulations for military aircraft and personnel oper-

ating in the affected airspace. Additionally, this action

responds to the changes in commercial aircraft arrival

and departure corridors required for operation of ‘the

Denver International Airport.

The Text of the entire Record of Decision is provided

as follows:

I. Introduction

This document serves as the Record of Decision

(ROD) for the Federal Aviation Administration’s

adoption of the Air National Guard’s (AGN) [sic] Final

A-43

Environmental Impact Statement (FEIS) and ROD for the

proposal known as the “Colorado Air Initiative” (CAI).

Pursuant to Section 102(2) of the National Environ-

mental Policy Act of 1969 (NEPA) and the Council on

Environmental Quality (CEQ) regulations implementing

NEPA procedures (40 CFR Section 1500-1508), the ANG

prepared and published a FEIS that analyzed the poten-

tial environmental impacts associated with modification

of existing airspace and the establishment of new military

training airspace in and around the state of Colorado. The

document also considered changes in airspace utilization

by military flying units.

The FEIS considered three alternatives, the “Pre-

ferred Alternative”, the “Original Proposal” and the “No

Action Alternative” as required by the CEQ regulations.

Five other alternatives has [sic] been identified but were

eliminated from further consideration.

The ANG has submitted the FEIS along with the

supporting aeronautical proposals to the FAA for consid-

eration and adoption pursuant to CEQ regulation 40 CFR

Part 1506.3. The proposal submitted by the ANG to the

FAA for consideration is the alternative designated by the

ANG as the Preferred Alternative. This alternative is also

the environmentally preferred alternative. The Preferred

Alternative proposes the modification of three existing

Military Operating Areas (MOA) and four Military Train-

ing Routes (MTR), the deletion of one MTR and a portion

of one other, as well as the establishment of one MOA

and three MTRs. One MOA would remain unchanged.

The following is a discussion of the proposal submit-

ted to the FAA, a brief discussion of the other alternatives

A-44

considered, environmental impacts and additional mit-

igation measures mandated by the FAA as well as the

decision of the FAA.

II. Background

The ANG prepared the CAI FEIS in support of its

request for modification to the National Airspace System

administered by the FAA. The ANG requested these mod-

ifications to address new military airspace training

requirements in part related to the modernization of their

aircraft and weapons systems. The ANG is also seeking

these modifications in response to changes in commercial

aircraft arrival and departure corridors dictated by the

FAA for the operations of the Denver International Air-

port.

The ANG issued the CAI FEIS in August 1997 and

executed its ROD in October 1997. In the spring of 1998,

the ANG submitted these documents to the FAA for

adoption pursuant to CEQ guidelines. Thereafter, the

ANG submitted its aeronautical proposals to the FAA,

formally requesting that the FAA make the requisite

changes to the National Airspace System.

The FAA held six informal airspace meetings. In

response to many of the comments received as well as to

incorporate safety and efficiency requirements, the FAA

mandated the additional mitigation measures that are

outlined in this document.

ee ee ee va

A-45

III. Proposal

The ANG FEIS analyzed three alternatives, the Pre-

ferred Alternative, the Original Proposal, and the No

Action Alternative. Implementation of either the Prefer-

red Alternative or the Original proposal would result in a

reduction in the number of operations compared to the

No Action Alternative (existing conditions). Five other

alternatives were originally identified but were not car-

ried forth for consideration. The ANG in its ROD dated

October 28, 1997, selected the Preferred Alternative. This

alternative was also the environmentally preferred alter-

native. The following is a discussion of the alternatives

considered.

Preferred Alternative

The Preferred Alternative was developed in response

to issues and concerns raised during the ANG scoping

process. This Alternative took into account comments

made by the CAI Working Group and recommendations

from former Governor Romer’s Office.

The Preferred Alternative proposes the modification

of three existing MOAs and four MTRs, the deletion of

one MTR and a portion of one other. It also proposes the

establishment of one MOA and three MTRs. One MOA

would remain unchanged. The proposal considered in the

FEIS is as follows:

e Modify Kit Carson A/B MOAs and rename

them Cheyenne High and Low MOAs. Mini-

mum altitude would be raised from 100 feet to

300 feet Above Ground Level (AGL).

A-46

¢ Modify Pinon Canyon MOA. The eastern

border would be moved approximately 1 nauti-

cal mile (NM) to provide FAA clearance criteria

for a north-south airway.

e Utilize La Veta MOA. This MOA would

remain unchanged.

e Modify Fremont MOA and rename Airburst

MOA. The southeastern corner would be

extended east and south to connect with the La

Veta MOA. The modified airspace would be

renamed Airburst A, B and C would form con-

tiguous airspace with the La Veta MOA and the

Airburst range. This would exclude an area over

Canon City, Colorado and Penrose, Colorado.

The bottom elevation of Airburst B and C would

be 500 feet AGL.

e Establish Two Buttes MOA. This MOA would

be established east of the adjoining Pinon Can-

yon MOA. The MOA would be divided into low

and high areas. The elevation for low would be

300 AGL to 10,000 mean Sea Level (MSL). The

elevation for high would be 10,000 MSL but not

higher than Flight Level (FL) 180.

e Modify IR-409. The bottom elevation of this

MOA would be raised from surface to 300 feet

AGL for the two final segments and raised from

surface to 500 feet AGL for the remainder of the

route. The route width would be reduced from

16 NM to 10 NM along two segments, from 22

NM to 8 NM along one segment and from 16

NM to 6NM for the remainder.

e Delete VR-412.

e Modify VR 413. The floor would be raised

from surface to 500 feet AGL. The route width

would be reduced to 6 NM. The southwestern

A-47

most turning point would be 12 NM along the

centerline to eliminate flights over the Great

Sands Dune Natonal Monument. Restrictions

would be added to the route so that aircraft

would remain 2000 feet AGL to the maximum

extend [sic] possible when they cross the Sangre

de Cristo wilderness areas between Highways

50 and 285.

e Modify IR-414. The minimum altitude would

be raised from the surface to 300 feet AGL. The

width would be reduced from 28 NM to 6 NM.

An existing maneuver area would also be elimi-

nated.

e Establish XIR-424. Create a new MTR that

would follow the reverse ground path of IR-414

and then follow the existing ground path of

IR-409 to the Airburst Range. The bottom alti-

tude of XIR-424 would be 500 feet AGL from

Cottonwood to Airburst Range.

e Modify IR-415. This IR would be modified so

that it would join IR-409 at Cedarwood and

continue to the Airburst Range. The minimum

altitude for this route would be raised from the

surface to 300 AGL beginning at Point E near

Cedarwood and raised from the surface to 500

feet AGL from Point E to Airburst Range. The

width would be reduced from 21 NM to 10 NM

and from 33 NM to 10 NM.

e Modify IR-416. The southern portion of this

route from Point G to Point L would be deleted.

The altitude for the remaining route would be

raised from the surface to 300 feet AGL.

e Establish XIR-426. This new MTR would fol-

low the reverse ground path of the current

A-48

IR-416 from Point L to Point G. The minimum

altitude of this route would be 300 feet AGL.

e Establish XVR-427. This visual route would

begin approximately 7 NM south of the north-

ern border of Cheyenne MOA. The route would

proceed southwest then north and terminate at

Airburst Range. The new VR would conform to

the existing IR-409 route widths and altitudes

beginning at Point F. The minimum altitudes

prior to Point F would be 300 feet AGL.

Original Proposal

This Alternative had been identified by the ANG

during its scoping process and was retained for further

consideration within the FEIS. Under this Alternative,

four existing MOAs and MTRs would be modified, one

MTR and a portion of another would be deleted, and one

new MOA and three new MTRs would be established.

After considering public input received during the scop-

ing process, the ANG determined that the Preferred

Alternative was more responsive to the public while

ensuring that their training requirements could be accom-

plished. ?

No-Action Alternative

Under the No-Action Alternative, existing airspace

would continue to be utilized. No modifications to train-

ing airspace configuration would occur. However, the

operations at the Denver International Airport, since its

opening, have placed limitations on the ANG’s use of

existing airspace. In addition, new modern warfare train-

ing requirements mandated by the Air Force necessitated

A-49

modification to the existing airspace. The ANG deter-

mined that the existing airspace would not enable its

pilots to accomplish their training requirements in a man-

ner that would adequately prepare them for wartime

taskings. Therefore, this alternative was not considered a

viable alternative.

Alternatives Identified But Not Carried Forward For Further

Detailed Study

Five other alternatives were originally identified by

the ANG but were eliminated from further detailed study.

They are as follows: (1) Continued use of the existing

MOAs and MTRs aside from those addressed previously

and the creation of one MOA and five MTRs. The new

MOAs and MTRs were eliminated because they did not

meet criteria established for meeting aircrew proficiency

requirements or were dismissed by the FAA. (2) Estab-

lishment of 6 new MCAs. Each MOA was eliminated

from further consideration because it did not meet train-

ing or distance from home station requirements. (3) The

elimination of the 140th Wing of the COANG. The ANG

eliminated this alternative because its evaluations dem-

onstrated economic and logistical advantages associated

with individual state ANG units including the 140th

Wing. (4) Elimination of military training airspace in the

state of Colorado. This alternative would have impaired

the ability of pilots stationed in Colorado from accom-

plishing the required level of training. (5) Replacement of

all military aircraft training with simulator assisted train-

ing. Although simulator training does assist aircrews in

obtaining certain type [sic] of training it does not provide

the opportunity to obtain the most important aspect of

A-50

aircrew proficiency training, which is the requirement to

conduct actual military training flights.

Modification to the Initial Proposal Submitted to the FAA

In addition to the proposals considered in the FEIS

and considered as part of the Preferred Alternative, the

ANG ROD detailed minor modifications of five MTRs.

These modifications had been requested by the FAA

stemming from the FAA’s on going aeronautical review.

They are as follows:

e IR-409. Corridor width narrowed along sev-

eral legs.

e IR-414. Corridor width narrowed under

Cheyenne MOA.

e XIJR-424. Corridor width narrowed under

Cheyenne MOA.

e IR-416. Corridor width narrowed under Cou-

gar MOA. Southern half of the route would not

be eliminated.

e XIR-426. Proposal withdrawn (adoption of

the no action alternative)

IV. Environmental Consequences

The ANG, in its FEIS, considered the potential envi-

ronmental impacts associated with all three of the alter-

natives carried forth for analysis. The analysis for each

piece of airspace was conducted as if the maximum possi-

ble numbers of sorties were to be performed in that

airspace. The ANG FEIS considered the potential environ- —

mental consequences on the following: Noise, Airspace —

Management/Air Traffic, Land Uses and Resources,

A-51

Safety, Visual Resources and Aesthetics, Biological

Resources (Vegetation, Wildlife and Domestic Animals

and Threatened and Endangered Species), Cultural

Resources, Air Quality, Socioeconomic Resources, Earth

Resources, Water Resources, Hazardous Material Release,

Human Health Effects and Natural Quiet. The EIS also

considered the cumulative impacts of the proposal. The

ANG ROD concluded the following:

Based on the analyses conducted for the

EIS, neither the Preferred Alternative, the Origi-

nal Proposal, nor the No-Action Alternative

result in significant environmental impacts. Any

impacts which may occur can be minimized

through the use of mitigation measures.” (ANG

ROD pg. 8)

V. Mitigation

After the publication of the ANG ROD, the FAA held

six informal airspace meetings: From the input received

from the public, as well as to assist the FAA in dissem-

inating real time information relating to military training

flights to the General Aviation population, the FAA deter-

mined that additional mitigation measures were neces-

sary. In addition to the mitigation measures the ANG set

forth in its ROD, the FAA mandated the following mod-

ifications:

e No operations to occur between the hours of

10:00 P.M. and 7:00 A.M.

e In addition to renaming the Kit Carson A/B,

Cheynne, the western boundary would be relo-

cated 10 NM to the east.

A-52

e Reduction of Pinon Canyon MOA. The east-

ern boundary would be modified to coincide

with the eastern edge of VR-109 and the western

boundary of Two Buttes MOA.

e Airburst A modified. The eastern, southern

and western boundaries would be the same as

the existing Fremont MOA. The southern

boundary would be moved north to avoid

Canon City and the Fremont Airport. Altitude

would remain the same, i.e., 1500 feet AGL but

not higher than FL 180.

e Airburst B modified. The southern boundary

of the existing Freemont [sic] MOA would be

moved east along the southern boundary of the

Fort Carson R-2601. The altitude would be 500

feet AGL but no higher than FL 180.

e Airburst C MOA modified. The southern

boundary would be extended south of the Air-

burst B MOA to highway 50, then west along

highway 50 to a point south of Airburst B MOA

then north to the southwest corner of the Air-

burst B MOA. The altitude would be 500 feet

AGL, but not higher than 8,500 feet MSL.

e IR-409 modified. Point E would be deleted as .

an alternative entry/exit point. The existing seg-

ment between Point H and Point I would

become VR-410/411.

e Creation of VR-410 and VR-411. These MTRs

were created in lieu of the expansion of the

Airburst MOA extending from R-2601 to the La

Veta MOA. VR-410 and VR-411 would be 6 NM

wide and would utilize the same centerline as

the existing VR-409. VR-410 would be the north-

bound route and VR-411 the southbound route.

The Special Operating Procedures (SOP) for

A-53

both routes would require that all operations

conducted south of U.S. Highway 50 occur at or

above 8,500 feet MSL.

e VR-413 narrowed in the vicinity of the town

of Moffat. Route restrictions and reporting

requirements added to the route SOP.

e La Veta MOA modified. The northwest tip of

this MOA would be removed to accommodate

Global Position System (GPS) approach pro-

cedures and airspace to the Fremont County

Airport.

e Elimination of the Cougar MOA.

The environmental analysis contained within the

FEIS was reviewed by the FAA and a determination made

that any potential environmental impacts associated with

the modifications made to the airspace proposals would

be consistent with those already disclosed in the FEIS.

VI. Public Involvement Process

Informal Aeronautical Meetings

In response to public interest in this proposal, the

FAA held six informal aeronautical public meetings in

1998. Meetings were held in Saguache, Westcliffe, Pen-

rose, Englewood, Colorado Springs and La Junta, Colo-

rado.

421 comments were received during these informal

meetings and many more were submitted in writing after

the meetings. The comments were read and charac-

terized. The major issues identified by the public during

this process and responses thereto were compiled in a

document entitled “Summary of Major Environmental

A-54

Comments During FAA Aeronautical Review.” This sum-

mary was mailed along with the FAA’s Federal Register

Notice dated April 27, 1999 declaring the Agency’s intent

to adopt the ANG FEIS to those individuals who had

expressed concern about the initiative or who had

attended an aeronautical meeting.

Informal Public Comment Period

In a Federal Register Notice dated April 27, 1999, (FR

Vol. 64, pg. 22670) the FAA announced that it was recir-

culating the ANG FEIS in compliance with CEQ regula-

tion 40 CFR Part 1506.3, and that it intended to adopt the

FEIS. The Federal Register Notice stated that FAA would

receive public comments for 30 days or until May 28,

1999. By letter dated May 3, 1999, the FAA notified inter-

ested members of the public of its intent to adopt the

ANG FEIS. Also included in the mailing was a copy of the

summary of major environmental concerns discussed

above.

The public comment period was extended an addi-

tional 30 days to provide the public the opportunity, to

submit their comment on the references made by the FAA

to the ANG aeronautical proposal. (FR dated May 20,

1999, Vol. 64, pg. 27612) In a letter dated May 19, 1999,

the FAA mailed a summary of those refinements to the

public and extended the period during which the FAA

would receive public comments until June 21, 1999.

At the request of members of the public, the period

during which the FAA would accept comment was

extended one final time. By Federal Register Notice dated

June 11, 1999, the FAA extended the informal public

A-55

comment period to August 2, 1999. (FR Vol 64, pp.

31676-31677) In excess of 400 comment letters were

received by the FAA in response to the Federal Register

Notices announcing its intent to adopt the ANG’s FEIS.

The letters were carefully read and considered. Major

areas of concern were identified and a general response

was sent to concerned citizens by letter dated August 11,

1999. All letters have become part of the administrative

record and have been considered by the federal decision-

_ maker. |

Summary of Issues of Concern to the Public

Informal aeronautical meetings were held by the FAA

to obtain aeronautical comments related to the proposed

modification to the National Airspace System. However,

the vast majority of comments made by the public during

the FAA’s six informal meetings were related to concerns

about the potential for environmental impacts and the

sufficiency of the environmental analysis performed by

the ANG. The primary concern was noise and the poten-

tial impact to quality of life for those who live under the

proposed airspace. Below is a list of the major environ-

mental concerns identified during the informal meetings

in addition to those raised by the public during the

informal public comment period. The ANG FEIS and

ROD were reviewed and a determination made that the

issues identified below were adequately analyzed within

the FEIS and ROD.

Issues of Concern

(1) Risk of aircraft accidents and the inability of

local fire and rescue to respond to an accident.

(2) Concern about overflights over Route 17.

(3) Noise impacts to the Moffat School.

(4) Potential disproportionate effects on low income

and minority populations. (Environmental Justice con-

cerns).

(5) Risk of collisions with other airspace users.

(6) Potential impacts on children’s health and

safety.

(7) Noise and compatible land use, including startle

effect on horses and other livestock and ate distur-

bance.

(8) Potential impacts to tourism and property

values.

(9) Inability to obtain ‘ Lacstionen quiet” over National

Park Service Parks.

(10) Potential Impacts to migratory birds and other

wildlife. -

(11) Accountability of the military pilots.

VII. Decision

After careful and thorough review of the ANG’s

FEIS, the FAA has determined that the FEIS complies

with the National Environmental Policy Act of 1969, (42

A-57

U.S.C. Section 4371 et seq.), the CEQ’s implementing

reguiations (40 CFR Sections 1500-1508), and FAA’s order

entitled “Policies and Procedures For Considering Envi-

ronmental Impacts” (1050 1d). The FAA has considered

the contents of the ANG FEIS, and the ANG ROD.

Under the authority delegated to me by the Adminis-

trator of the Federal Aviation Administration, I have

decided to adopt the ANG FEIS pursuant to CEQ regula-

tion 40 CFR 1506.3. Moreover, having considered the

environmental and aeronautical comments received from

the public, the FAA deems it necessary to undertake the

additional mitigation measures identified above.

Dated September 28, 1999.

William J. Marx,

Manager, Environmental Programs Division, Air Traffic Man-

agement Program.

Right of Appeal

This decision is taken pursuant to 49 U.S.C. Section

40101 et seq. and 49 U.S.C. Section 47101 and constitutes

an order of the Administrator, which is subject to review

by the Court of Appeals of the United States in accor-

dance with the provisions of 49 U.S.C. Section 46110.

Federal Aviation Administration,

Environmental Programs Division,

Air Traffic Airspace Management

Program, Attn.: Elizabeth Gaffin,

rm. 422, 800 Independence Ave.,

SW, Washington, DC 20591.

A-58

Issued in Washington, DC, on October 1, 1999.

William J. Marx,

Manager, Environmental Programs Division.

[FR Doc. 99-26170 Filed 10-6-99; 8:45 am]

hal ’

A-59

[OCT. 28, 1997]

RECORD OF DECISION

FOR THE

COLORADO AIRSPACE INITATIVE

INTRODUCTION

The Air National Guard (ANG) prepared an Environ-

mental Impact Statement (EIS) in accordance with the

National Environmental Policy Act (NEPA). It addressed

actions being proposed by the National Guard Bureau

(NGB) to modify existing and create new military train-

ing airspace. Changes in airspace utilization by military

flying units were also included. The actions would take

place primarily in Colorado, and are collectively referred

to as the Colorado Airspace Initiative (CAI).

The airspace addressed in the Final EIS will be used

primarily by the Colorado Air National Guard (COANG),

although other military service flying units will also use

the airspace. The Federal mission of these units is to

provide DoD with combat-ready aircrews and support

personnel for worldwide deployments, should the need

arise. During peacetime, units must maintain combat

readiness by conducting proficiency training. The 140th

Wing of the COANG is based at Buckley Air National

Guard Base (ANGB) in Aurora, Colorado, with one

detachment located at Fort Carson, Colorado. To serve its

Federal mission, aircrews of the 140th Wing fly the F-16

aircraft. In addition, F-16 aircraft from Cannon Air Force

Base, New Mexico, Kirtland Air Force Base, New Mexico, -

A-60

and various USAF B-1 and B-52 bomber units will con-

tinue to fly in Colorado and adjoining states. Other mili-

tary services (Navy, Marines, etc.) aircraft would also use

the proposed airspace on an infrequent basis.

Retention of Buckley ANGB and the 140th Wing

enables the USAF to maintain a combat ready force at a

facility operated. by the ANG which has accessible air-

space close by, and is supported by part-time professional

members of the local community.

The CAI serves to support the NGB’s request for

modification to the National Airspace System adminis-

tered by the Federal Aviation Administration (FAA).

These actions are to address modifications in military

airspace configuration and utilization to respond to

changes in readiness training requirements reflected in

specific USAF regulations for military aircraft and per-

~ sonnel operating in the affected airspace, such as the F-16

aircraft and aircrews of the 140th Wing and the COANG.

Another purpose is to respond to changes in commercial

aircraft arrival and departure corridors dictated by the

FAA for the operation of the new Denver International

Airport (DIA).

PURPOSE AND NEED FOR THE ACTION

The declining Department of Defense (DoD) budget

continues to reduce the active duty military force struc-

ture. However, force structure within the Air Reserve

Components, which include the ANG, has remained rela-

tively stable. Thus, reserve components missions are

increasing as a percentage of the Total Force. As a result,

the ANG is assuming a more prominent role in USAF

A-61

plans for response to global wartime situations. To rap-

idly and effectively respond to these situations, ANG

‘units must continue training to the highest standards as

established by the USAF for active duty units.

Pilot proficiency training requires the use of military

airspace approved by the FAA known as MOAs and

MTRs that are spread over various types of terrain. An

air-to-surface gunnery range at Fort Carson, Colorado is

utilized to accomplish practice bomb deliveries. Training

scenarios include such activities as aircraft intercept and

air combat maneuvers in the MOAs and low-altitude

tactical navigation in the MTRs. Training in evasive tac-

tics may incorporate the use of flares at altitudes in

excess of 2,000 feet above ground level (AGL). Various

USAF directives and instructions require this proficiency

training.

Developments in military weapons systems, espe-

cially in evolution of look-down, shoot-down radar; long

range air-to-air missiles; and advanced long range air-to-

surface weapons have altered USAF doctrine and tactics.

These changes in doctrine and tactics have necessitated

modifying existing and creating new airspace for training

purposes. The 140th Wing flight training requirements

include air-to

This text is long and has been trimmed here. Open the source document for the complete record.

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