Petition for Writ of Certiorari — AirStar Helicopters, Inc. v. Federal Aviation Administration
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( | FILED
02 931 nr 132002
No. _Geesce OF THE CLERK
RUNES.
In the
Supreme Court of the United States
*-
AIRSTAR HELICOPTERS, INC.,
” Petitioner,
FEDERAL AVIATION ADMINISTRATION;
JANE F. GARVEY, Administrator of the Federal Aviation
Administration; UNITED STATES DEPARTMENT OF
TRANSPORTATION; NORMAN Y. MINETA, Secretary of
the United States Department of Transportation, NATIONAL
PARK SERVICE; ROBERT L. ARNBERGER,
Superintendent of the Grand Canyon National Park;
FRAN P. MAINELLA, Director of the National Park
Service; UNITED STATES DEPARTMENT OF THE
INTERIOR; GALE A. NORTON, Secretary of the United
| States Department of the Interior; and
THE UNITED STATES OF AMERICA,
Respondents.
a
On Petition for Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit
5 ae
PETITION FOR WRIT OF CERTIORARI
oo
SHARON L, BROWNE
Counsel of Record
ANTHONY T. CASO :
Pacific Legal Foundation
10360 Old Placerville Road,
Suite 100 ig
Sacramento, California 95827
Telephone: (916) 362-2833
Facsimile: (916) 362-2932
Counsel for Petitioner
RHINE EMO EEN HNO,
—— = pe ee LEPINE
- a eT EYE I ce —msmr ENE
eae = =2~s SS” ws oo
i
QUESTIONS PRESENTED
The National Parks Overflights Act, 16 U.S.C. § la-1, was
adopted for the purpose of protecting the resources of the Grand
Canyon National Park from adverse impacts associated with
aircraft overflights. In taking action to implement the Act, the
Federal Aviation Administration and National Park Service
limited the number of flights each air tour operator could fly
over the Park. Although the Act was silent as to its
applicability to Native Americans, the agencies nonetheless
carved out an exemption for flights landing at and taking off
from an airport operated by an Indian Tribe. The exemption
was created for the sole purpose of providing a commercial
advantage for members of the Indian Tribe. In light of the
agencies’ action in interpreting a congressional statute, the
questions presented are as follows:
1. Whether federal agencies’ interpretation of a statute
that raises serious constitutional questions under the equal
protection component of the Due Process Clause of the Fifth
Amendment because it creates a racial classification exempting
members of an Indian Tribe from its requirement should be
subject to strict scrutiny review under Adarand Constructors,
inc. v. Pena, 515 U.S. 200 (1995), and not the rational basis test
under Morton v. Mancari, 417 U.S. 535 (1974).
2. Whethe; federal agencies have the authority to carve
out exemptions from environmental regulations to benefit
members of Indian Tribes without specific authorization by
Congress to do so.
ii
PARTIES TO THE PROCEEDING
Petitioner is AirStar Helicopters, Inc. (AirStar). AirStar
was a petitioner before the United States Court of Appeals for
the District of Columbia Circuit. United States Air Tour
Association, Inc.; Air Vegas Airlines, Inc.; Grand Canyon
Airlines, Inc.; Las Vegas Helicopters, Inc.; Maverick
Helicopters, Inc.; and Scenic Airlines, Inc., were also
petitioners below along with AirStar but take no part in this
petition. Papillon Grand Canyon Helicopters, Inc., was also a
petitioner below but voluntarily withdrew in July, 2001.
AirStar states that it is a privately held corporation and that it
has no parent corporations, subsidiaries, or affiliates that issue
shares to the public.
_~
The caption of the Petition for Writ of Certiorari contains
the names of all the Respondents, joined in their official
capacities. They, or their predecessors, were respondents
before the United States Court of Appeals for the District of
Columbia Circuit.
The following were intervenors in the United States Court
of Appeals for the District of Columbia Circuit: Grand Canyon
Trust, National Parks and Conservation Association, Sierra
Club, Wilderness Society, Friends of the Grand Canyon, Grand »
Canyon River Guides, Inc., and the Hualapai Indian Tribe of
Arizona.
BUI NEA ID se nad Al ina
TABLE OF CONTENTS
Page
rn i
PARTIES TO THE PROCEEDING ...................... ii
ee iV
PETITION FOR WRIT OF CERTIORARI ................. |
EE ee 1
Ee ee 1
CONSTITUTIONAL PROVISION AT ISSUE.............. ]
STATUTORY PROVISIONS INVOLVED ................ 2
PER URIET MOTO WED occ ec cc wenccscscsesscees ae:
UPR RUMNNEE GON ROMP GIUIS 655s ssc ccsccssccccsscccces 2
1. National Parks Overflights Act ............. 2
ee 3
eee 5
REASONS FOR GRANTING THE WRIT ................. 7
I. THIS CASE PRESENTS AN IMPORTANT
PUR GPM EUONY Succ esceecnvencosvesseccs 7
fl. THE COURT OF APPEALS’ DECISION
CONFLICTS WITH ‘THIS COURT’S DECISIONS
IN MANCARI AND RICE v. CAYETANO ........... 12
Il. THE DISTRICT OF COLUMBIA CIRCUIT’S
APPLICATION AND CONSTRUCTION OF
MANCARIS “UNIQUE INDIAN INTERESTS”
TEST CONFLICTS WITH THE NINTH CIRCUIT’S
DECISION IN WILLIAMS v. BABBITT ............. 15
ER REE Se era eee 18
iV
TABLE OF AUTHORITIES
Page
Cases
Adarand Constructors, Inc. v. Pena,
RE ee errr re: ere 6-10, 16
Agostini v. Felton, 521 U.S. 203 (1997) ............ 7, 11
Buckley v. Valeo, 424 U.S. 1 (1976) ............2.00-. 9
Chevron U.S.A. Inc. v. Natural Resources Defense
Commncll, GBr Ute. Bae CEB oon vce cdesicevesves 15
City of Richmond v. Croson,
ee es EE pc knee bbanndawewabseekenae es 9
Fullilove v. Klutznick, 448 U.S. 448 (1980) ............ 9
Grand Canyon Air Tour Coalition v. FAA,
Re Fe ee Cs Ses SD 0 oa 0 6005600 c eviews 3
Louisiana Public Service Commission v. FCC,
Gee es EE kk oe he Raeeescedheeseakes 12
McLaughlin v. Florida, 379 U.S. 184 (1964) ........... 9
Morton v. Mancari, 417 U.S. 535 (1974) ......... passim
Rice v. Cayetano, 528.U.S. 495 (2000) ............ 12-14
United States Air Tour Association v.
Federal Aviation Administration,
SP en FET i Be ED 6 0 6 5 0 ohh a ekeedeewens l
United States v. Antelope,
og 8, re eee rere nya reer 16
Williams v. Babbitt, 115 F.3d 657
+e Bj Pee eee ee TTereee rere eee 15-17
V
TABLE OF AUTHORITIES—Continued
Page
United States Constitution
pS Peevrrreerrr Tree rr err Tre Tere er !
Statutes
25 UBL. F461, IGE, oc ccc ccncsvseseevecesns 12
Pe | PP eee eee eee rr 15
SURE CTR. W....0<c0ccicisactse ees I
pit Lat Fo) | Pererrerrercet Terr ye rere 5
Miscellaneous
Benjamin, Stuart M., Equal Protection and the
Special Relationship: The Case of Native Hawaiians,
PUG Tae Rad. Sav CLPOED vw ovens cvacesessvensens 7-8
Farnsworth, Wayne R., Note, Bureau of Indian
Affairs Hiring Preferences After Adarand
Constructors, Inc. v. Pena,
1996 BY UL. Hav. FES GISGE kc cccccswanesesces 8
Gould, L. Scott, Mixing Bodies and Beliefs:
The Predicament of Tribes,
BS CURA. En. BUOY. Fe GOED oo cht edereccdcscsce 8
Shockey, Frank, “Jnvidious” American Indian
Tribal Sovereignty: Morton v. Mancari Contra,
Adarand Constructors, Inc. v. Pena, Rice v.
Cayetano, and Other Recent Cases,
25 Am. Indian L. Rev. 275 (2000/2001) ............ 8
Williams, David C., The Borders of the Equal
Protection Clause: Indians as Peoples,
SS URSA Ls . Far ED hc kere ccevacseeeeess 8
vi
TABLE OF AUTHORITIES—Continued
Williams, David C., Sometimes Suspect:
A Response to Professor Goldberg-Amrose,
Fe ek as Os PU CREED 54 sN cos cbncndecsenees 8
PETITION FOR WRIT OF CERTIORARI
Petitioner AirStar respectfully petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.
+4-
OPINION BELOW
The opinion of the court of appeals is reported at 298 F.3d
997 (D.C. Cir. 2002), and appears at Petitioner’s Appendix
(Pet. App.) A.
+
JURISDICTION
The opinion of the United States Court of Appeals for the
District of Columbia Circuit was entered on August 16, 2002.
Pet. App. at A-1. This petition is timely filed pursuant to
Supreme Court Rule 13. On November 6, 2002, Chief Justice
Rehnquist granted Petitioner’s timely application to extend the
time within which to file the petition to and including
December 14, 2002. Application No. 02A368. This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1254(1).
+
CONSTITUTIONAL PROVISION AT ISSUE
This case concerns the equal protection component of the
Due Process Clause of the Fifth Amendment to the United
States Constitution, which reads in pertinent part: “No person
shall . . . be deprived of . . . life, liberty, or property, without
due process of law.”
+
2
STATUTORY PROVISIONS INVOLVED
The statutes involved in this case include the National
Overflights Act, 16 U.S.C. § la-1, note Sec. 3, Pub. L. 100-91
(Aug. 18, 1987), Pet. App. B; the Regulatory Flexibility Act, 5
U.S.C. § 601-12, Pub. L. 96-354, 94 Stat. 1164 (Sept. 19,
1980), Pet. App. C; Judicial Review of Agency Actions, 5
U.S.C. §§ 701-706, Pet. App. D; and Judicial Review of
Federal Aviation Administration Orders, 49 U.S.C. § 46110,
Pet. App. E.
.
REGULATION INVOLVED
This case involves the Commercial Air Tour Limitation in
the Grand Canyon National Park Special Flight Rules Area,
Final Rule, 14 C.F.R. Part 93, 65 Fed. Reg. 17,708-17,733
(Apr. 4, 2000), Pet. App. F; corrected 65 Fed. Reg. 33,751
(May 25, 2000), Pet. App. G.
+
STATEMENT OF THE CASE
1. National Parks Overflights Act
Congress enacted the National Parks Overflights Act
(Overflights Act) in 1987, to protect the Grand Canyon
National Park from “noise associated with aircraft overflights.”
Pet. App. at B-7. According to Congress, overflights were
“causing a significant adverse effect on the natural quiet and
experience of the park.” Jd. To correct this problem, Congress
directed the National Park Service (NPS) to develop
recommendations “to achieve the substantial restoration of
natural quiet” in the Park. Jd. Congress also directed the
Federal Aviation Administration (FAA) to “prepare and issue
a final plan for the management of air traffic in the air space
above the Grand Canyon.” Pet. App. at B-8. The Overflights
=<
3
Act is silent on providing authority to the agencies to carve out
exemptions from its reach for Native Americans.
2. FAA’s Actions
On December 31, 1996, the FAA issued a final rule that
eliminated commercial air tours over much of the Grand
Canyon by establishing flight free zones (areas into which
aircraft may not fly), instituting flight curfews, and setting a cap
on the number of aircraft each commercial air tour provider
could fly over the park—but not on the number of flights. Pet.
App. at A-5, F-5 to F-6. Its goal was to substantially restore
natural quiet to the Grand Canyon as required by the
Overflights Act. Pet. App. at F-10. The validity of that rule
was upheld in Grand Canyon Air Tour Coalition v. FAA, 154
F.3d 455 (D.C. Cir. 1998). Pet. App. at A-3, A-6, F-6. The
FAA did not carve out any exemptions.
On April 4, 2000, the FAA, in conjunction with the NPS
(the Agencies) issued a final rule by publishing the Commercial
Air Tour Limitation in the Grand Canyon National Park Special
Flight Rules Area (the Limitation Rule), the subject matter of
this action. Pet. App. F. The Limitation Rule modified the
aircraft cap that was adopted in 1996.' Pet. App. at A-6, F-21.
It severely limits the number of commercial air tours that
AirStar and other air tour providers could fly over the Grand
Canyon. Pet. App. at A-8, F-1. Under the Limitation Rule, a
commercial air tour provider “may not conduct more flights in
the Park than it conducted during the base year of May, 1997,
through April 30, 1998.” Jd. Although the goal of the
' On April 4, 2000, the FAA also published Modification of the
Dimensions of the Grand Canyon National Park Special Flight Rules
Area and Flight Free Zones, FAA-99-5926 (the Airspace Ruie),
which modifies air flight paths in the Grand Canyon National Park.
On October 17, 2001, the District of Columbia Circuit severed the
Airspace Rule from the Limitation Rule. Pet. App. at A-8. The
Airspace Rule is not part of this action.
4
Limitation Rule was “to prevent an increase in aircraft noise by
limiting the number of commercial tours,” it exempted from its
reach all flights landing at and taking off from the Grand
Canyon West airport located on the Hualapai reservation for the
sole purpose of protecting the economic benefits of certain
members of the Tribe.2 Pet. App. at F-28, F-31 to F-32.
According to the FAA, the purpose of the exemption was “to
ensure continued employment of Hualapai community
members.” Pet. App. at F-29, see also F-75. It also ensured
members of the Tribe would have access to tourists and
commercial air tour operations. Jd.
The Agencies found that the Limitation Rule would have
Significant economic impact on both the commercial air tour
operators and the Hualapai Tribal members. Pet. App. at F-15,
F-31 to F-32. Nonetheless, the Agencies limited severely the
annual number of flights each commercial operator could fly
over the Park.’ Pet. App. at F-43. In contrast, the Agencies
treated the members of the Hualapai Tribe differently. Because
the Limitation Rule would “have the immediate negative effect
upon the number of Hualapai who derive their livelihood from
tourism at GCW [Grand Canyon West],” the Agencies agreed
to exempt all air tours that take off or land at the reservation.
* The Grand Canyon West airport is located on Hualapai reservation
land, which adjoins the southwestern part of the Grand Canyon
National Park. Pet. App. at F-28, F-74.
> From May 1, 1997, through April 30, 1998, there were 24
commercial air tour operators conducting air tours over the Grand
Canyon National Park in airplanes and helicopters, including AirStar.
The Limitation Rule would eliminate the 3.3% expected growth of
air tours resulting in a loss of $155.4 million in net operating revenue
between 2000 and 2009 to air tour operators. Pet. App. at F-64, F-
72, F-75 to F-76, F-96. The Agencies also concluded that the annual
losses for some commercial air tour providers, including AirStar,
would be as high as $6.3 million. Pet. App. at F-84.
ee
5
Pet. App. at F-44 to F-45. The purpose and effect of this
exemption was to grant members of the Hualapai Tribe a
distinct competitive advantage of uninterrupted access to
tourists and the air tour operators.’ Pet. App. at F-28, F-30.
The Agencies reasoned that “as federal agencies they owe a
general trust responsibility to Native American Tribes or
Nations, including the Hualapai Tribe.” Pet. App. at F-31. The
Agencies acknowledged that the Overflights Act was silent on
providing an exemption based on an Indian classification, but
nonetheless claimed the authority to create one. “Pursuant to
this unique trust responsibility, the FAA and NPS are
essentially acting in the interest of the Tribe, however, they do
so in the context of other federal statutes and implementing
regulations.” Pet. App. at F-31. The Limitation Rule did not
cite to any federal statute authorizing them to make this
exemption.
3. Judicial Proceedings
On May 9, 2000, AirStar filed a Petition for Review,
pursuant to 43 U.S.C. § 46110(a). The petition challenged the
Limitation Rule ona variety of grounds including the Agencies’
exemption of all “flights to and from the Hualapai Indian
Reservation from each tour operator’s annual allocation.” Pet.
App. at A-24. AirStar argued that not only did the Agencies
lack the authority to make this exemption, but the exemption
violated the equal protection component of the Due Process
Clause of the Fifth Amendment to the United States
4 The Agencies found that members of the Hualapai “had a
substantial economic interest in air tour business brought to its
reservation via air tour operators.” Pet. App. at F-31. Because the
Limitation Rule eliminates the expected 3.3% growth of air tours, the
Tribe would forego the potential revenue generated from an
additional 25,700 air tours carrying [133,900] passengers over the
2000-2009 time period. The Agencies recognized that many
members of the Tribe benefit from tourism, which is their primary
means of employment. Pet. App. at F-76.
6
Constitution. According to AirStar, the exemption was made
solely on the basis of race and/or nationality for the purpose of
providing members of the Hualapai a commercial advantage.
AirStar asked the reviewing court to find that the Agencies
had no authority to carve out a race-based exemption for the
Hualapai unless Congress conferred such a power on them.
According to AirStar, because the Agencies were unable to cite
to a federal statute authorizing them to exempt Native
Americans, the Agencies’ actions were not in accordance with
law. AirStar also asked the reviewing court to analyze the
Agencies’ acticns under strict scrutiny because the exemption
creates a suspect classification on the basis of race, ethnicity,
ancestry, or nationality. AirStar’s argument was founded on
this Court s holding in Adarand Constructors, Inc. v. Pena, 515
U.S. 200 (1995), which directed reviewing courts to apply strict
scrutiny to all “suspect” classifications and to uphold the
legislation only if its classification is precisely tailored to
further a compelling governmental interest.
On May 9, 2002, the court of appeals rejected AirStar’s
arguments. Instead of finding that the Agencies had no
authority to carve out a race-based exemption or applying strict
scrutiny, the court below gave great deference to the Agencies’
interpretation that they were authorized to create race-based
exemptions for Native Americans. The court of appeals also
recognized that this Court in Morton.v. Mancari, 417 U.S. 535,
555 (1974), had upheld an employment preference for Indians
in the face of an argument similar to that of AirStar declaring
that, “[a]s long as the special treatment can be tied rationally to
the fulfillment of Congress’ unique obligation toward the
Indians, such treatment must be upheld.” Pet. App. at A-24.
The court of appeals found that “there is no dispute that the
Hualapai exception is at least rationally related to ‘the
government’s interest in fulfilling its trust obligation’ to the
Tribe.” Jd. (citation omitted).
7
In response to AirStar’s contention that the legal landscape
had changed requiring reviewing courts to apply strict scrutiny
to all race classifications, the court of appeals stated: “[L]ower
courts do not have the power to make that determination,” id.
(citing Agostini v. Felton, 521 U.S. 203, 237 (1997)), and
anyway, “this circuit has continued to apply Mancari post-
Adarand.” Id. at A-25.
AirStar timely files this petition for certiorari.
e
REASONS FOR GRANTING THE WRIT
On these important questions of whether federal agencies
can carve out race-based exemptions from federal
environmental regulations without the express authorization of
Congress and whether all race-based classifications are required
to be reviewed under strict scrutiny, the court below issued a
decision that conflicts with the decisions both of this Court and
other courts of appeals. Those conflicts require resolution by
this Court.
I
THIS CASE PRESENTS AN
IMPORTANT FEDERAL QUESTION
The issue of Mancari’s continued vitality following this
Court’s decision in Adarand Constructors, Inc. v. Pena, 515
U.S. 200, is a constitutional question of extraordinary
importance. It will determine to what extent federal agencies
can discriminate in favor of Native Americans. This debate is
occurring not only in the courts but among commentators, both
before and after Adarand.’ This case now comes before this
5 A sampling of the various commentators include: Stuart M.
Benjamin, Equal Protection and the Special Relationship: The Case
of Native Hawaiians, 106 Yale L.J. 537 (1996) (recognizing that
(continued...)
8
Court because a cloud of constitutional uncertainty has cast its
shadow over the proper application of this Court’s
pronouncement that “all federal racial classifications. ..must be
analyzed by a reviewing court under strict scrutiny,” Adarand,
515 U.S. at 227, and whether strict scrutiny applies to Indian
classifications. As described above, although the Overflights
Act was silent as to its applicability to Native Americans, the
lower court ruled that “[a]s long as the special treatment can be
tied rationally to the fulfillment of Congress’ unique obligation
toward the Indians,” such preferences will not violate the equal
protection component of the Fifth Amendment. Pet. App. at A-
24 (citing Morton v. Mancari, 417 U.S. 535).
> (...continued)
Adarand creates an uneasy relationship between Congress’ special
relationship with Indian tribes recognized in Morton v. Mancari, and
the hostility to racial classifications in Adarand; and ultimately,
between historical tradition of treating native groups differently and
the idea that racial classifications are repugnant and therefore are
presumed to violate equal protection norms); L. Scott Gould, Mixing
Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev.
702, 718 (2001) (Mancari’s overlay of race with status may have
hurt as much as it helped. Jt is a refuge for race-conscious legislation
in an Adarand world of race neutrality. It permits preferences and
delegations of authority that otherwise would not escape strict
scrutiny .... Moreover, the Court has yet to rise to the scholarly
bait offered to replace it.); Frank Shockey, “Jnvidious” American
Indian Tribal Sovereignty: Morton v. Mancari Contra, Adarand
Constructors, Inc. v. Pena, Rice v. Cayetano, and Other Recent
Cases, 25 Am. Indian L. Rev. 275 (2000/2001); Wayne R.
Farnsworth, Note, Bureau of Indian Affairs Hiring Preferences After
Adarand Constructors, Inc. v. Pena, 1996 B.Y.U.L. Rev. 503 (1996);
David C. Williams, The Borders of the Equal Protection Clause:
Indians as Peoples, 38 UCLA L. Rev. 759 (1991); David C.
Williams, Sometimes Suspect: A Response to Professor Goldberg-
Amrose, 39 UCLA L. Rev. 169 (1991).
9
Moreover, this case presents an ideal vehicle for addressing
the important constitutional question it presents. The court of
appeals’ ruling upholding the Agencies’ authority to carve out
an exemption for Native Americans for the sole purpose of
creating a commercial advantage for members of the Tribe
cannot be reconciled with this Court’s most recent
pronouncement on the authority of Congress to distinguish
between and among Americans on the basis of race. In
Adarand, this Court held: “[FJederal racial classifications, like
those of a State, must serve acompelling governmental interest,
and must be narrowly tailored to further that interest.”
Adarand, 515 U.S. at 235. Thereupon, reflecting on its ruling
of a decade earlier in Fullilove v. Klutznick, 448 U.S. 448
(1980), this Court declared: “[O]f course, it follows that to the
extent (if any) that Fullilove held federal racial classifications
to be subject to a less rigorous standard [than strict scrutiny], it
is no longer controlling.” Adarand, 515 U.S. at 235. Because
this Court’s ruling in Mancari, 417 U.S. 535, held that a federal
racial classification was subject to a less rigorous standard,
Mancari, like Fullilove, should be deemed “no longer
controlling.”
In Adarand, this Court enunciated three propositions
regarding governmental racial classifications: First, skepticism.
“[R]acial classifications [are] ‘constitutionally suspect.’” 515
U.S. at 223 (citing McLaughlin v. Florida, 379 U.S. 184, 192
(1964). Second, consistency: “[T]he standard of review under
the Equal Protection Clause is not dependent on the race of
those burdened or benefitted by a particular classification.” 515
U.S. at 224 (citing City of Richmond v. Croson, 488 U.S. 469,
494 (1989) (plurality opinion)). And third, congruence: “Equal
protection analysis in the Fifth Amendment area is the same as
that under the Fourteenth Amendment.” Buckley v. Valeo, 424
U.S. 1,93 (1976). Moreover, concluded this Court in Adarand,
these three propositions “all derive from the basic principle that
the Fifth and Fourteenth Amendments to the Constitution
10
protect persons, not groups.” 515 U.S. at 227. Accordingly,
this Court held:
[A]ll racial classifications, imposed by whatever
federal, state, or local governmental actor, must be
analyzed by a reviewing court under strict scrutiny. In
other words, such classifications are constitutional
only if they are narrowly tailored measures that further
compelling governmental interests.
Adarand, 515 U.S. at 227.
In Mancari, deciding whether an employment preference
for American Indians with the Bureau of Indian Affairs (BIA)
violated the equal protection component of the Due Process
Clause, this Court engaged in none of the analysis required by
Adarand. Instead, enunciating the test to be applied, this Court
declared simply:
As long as the special treatment can be tied rationally
to the fulfillment of Congress’ unique obligation
toward the Indians, such legislative judgments will
. not be disturbed.
Mancari, 417 U.S. at 555. Thereupon, as to the employment
criterion under review, this Court held: “[WJhere the ©
preference is reasonable and rationally designed to further
Indian self-government, we cannot say that Congress’
classification violated due process.” Id.
Although it does not appear to have been the basis upon
which the Court’s ruling in Mancari turned, this Court did hold
that the “preference, as applied, is granted to Indians not as a
discrete racial group, but rather as members of quasi-sovereign
tribal entities,” that is, “the preference is political rather than
racial in nature.” Mancari, 417 U.S. at 554 & n.24. Whether
such a careful distinction survives Adarand is uncertain,
especially in a setting such as this one where the BIA, tribal
sovereignty, or self-governance are not directly implicated.
11
Instead, the race-based exemption was created by administrative
regulation for the sole purpose of providing an economic
benefit to certain members of the Hualapai.
Because the Agencies carved out an exception to the reach
of the Overflights Act solely to benefit members of an Indian
Tribe, the court of appeals should have applied strict scrutiny to
determine the validity of the Limitation Rule. Instead, relying
on the rational basis test announced in Mancari, the lower court
held that the application of strict scrutiny was not required; that
so long as a rational basis existed for carving out an exemption
to benefit members of an Indian Tribe, the Agencies’ actions
creating the race-based preference would not be disturbed. Pet.
App. at A-24.
Petitioner acknowledges, of course, that no lower court,
including the District of Columbia Circuit, should conclude that
this Court’s “most recent cases have, by implication, overruled
an earlier precedent.” Agostini, 521 U.S. at 237. In the final
analysis, it is precisely this exclusive authority to overrule this
Court’s decision in Mancari or to clarify its reach that brings
AirStar to this Court today. Reviewing courts are struggling on
what standard of review to apply. Only this Court can answer
that question.
For these reasons, this Court should grant the writ to
resolve the conflict on whether reviewing courts are required to
apply the strict scrutiny test or the rational basis test to actions
by federal agencies that carve out exemptions for Native
Americans for the sole purpose of creating a commercial
advantage to benefit certain members of the Tribe.
12
Il
THE COURT OF APPEALS’ DECISION
CONFLICTS WITH THIS COURT’S DECISIONS
IN MANCARI AND RICE v. CAYETANO
In rejecting AirStar’s equal protection argument, the court
of appeals concluded that “the Hualapai exception is at least
rationally related to ‘the government’s interest in fulfilling its
trust obligation’ to the Tribe.” Pet. App. at A-24. However, the
Agencies were unable to cite to any federal statute authorizing
them to exempt Native Americans from the reach of the
Overflights Act. Nonetheless, the court below assumed that the
Agencies had a “general trust obligation.” Thus, the court of
appeals extended Mancari to mean that federal agencies may
ameliorate the economic impact of environmental regulations
by carving out an Indian Tribe exemption from their application
without specific authorization from Congress. Not only does
this decision run afoul of the statutory rule that “an agency has
no power to act . . . unless Congress confers power upon it,”
Louisiana Public Service Commission v. FCC, 476 U.S. 355,
374 (1986), but it runs afoul of this Court’s decisions in both
Mancari and Rice v. Cayetano, 528 U.S. 495 (2000).
Mancari was the first time in which this Court was
confronted with an equal protection challenge to a law
benefitting Native Americans. In Mancari, nonIndian
employees of the BIA argued that a BIA employment
preference for Indians, authorized by a statute allowing Indian
preferences,° violated the equal protection component of the
Due Process Clause of the Fifth Amendment. This Court’s
discussion of the equal protection challenge was fairly brief but
noted the “unique legal status of Indian tribes under federal
law” and the “plenary power of Congress . . . to legislate on
behalf of federally recognized Indian tribes.” Mancari, 417
* The BIA was acting pursuant to the Indian Reorganization Act
of 1934, 48 Stat. 984, 25 U.S.C. § 461, et seq.
13
U.S. at 551. This Court found the special preference was
justified because “as members of quasi-sovereign tribal
entities,” the “lives and activities [of Indians] are governed by
the BIA in a unique fashion.” Jd. at 554. This Court
concluded: “[T]he legal status of the BIA is truly sui generis.”
Id. Moreover, this Court limited its holding to “particular and
special” legislation “designed to further Indian self-
government.” Id. at 555.
As long as this Court could characterize the special
benefits to Indian Tribes as being extended on a government-to-
government basis through acts of Congress, it could distinguish
a special preference from suspect classifications that are subject
to strict scrutiny. Here, the court of appeals’ decision ignored
the requirement in Mancari that the legislation be tied rationally
to Congress’s trust responsibility to Indian Tribes. In the
present case, there is no evidence that Congress intended the
Agencies to treat Native Americans differently under the
Overflights Act. In enacting the Overflights Act, Congress was
not legislating on behalf of federally recognized Indian Tribes.
Congress’s purpose in enacting the Overflights Act was to
protect the Grand Canyon from “noise associated with aircraft
overflights.” Pet. App. at B-7. Yet, the court of appeals simply
extended Mancarvi to uphold the Agencies’ actions of
exempting an Indian Tribe in order to provide uninterrupted
access to tourists and commercial air tour operators to members
of the Tribe.
Further, the court of appeals’ decision conflicts with Rice
v. Cayetano, 528 U.S. at 520. In Rice, this Court declined an
invitation to extend Mancari to a new and larger dimension.
Justice Kennedy explained that Mancari tumed on quasi-
sovereign authority relating to self-governance, which caused
this Court to uphold “a federal provision giving employment
preferences to persons of tribal ancestry.” Id. at 518 (citing
Mancari, 417 U.S. at 553-55). But, distinguishing the facts of
Mancari from those before it, the Court declared that the
14
legislative preference in Mancari was “ ‘designed to further
Indian self-government.’” Jd. at 520 (quoting Mancari, 417
U.S. at 555). Moreover, the Court in Mancari “was careful to
note, however, that the case was confined to the authority of the
BIA, an agency described as ‘sui generis.’” Id. (quoting
Mancari, 417 U.S. at 554).
In contrast, in order for the court below to apply the
Mancari rational basis test, it was necessary for it to assume
that the FAA had the same “sui generis” relationship with
Indian Tribes as the BIA. However, the FAA’s uniqueness
relates to its authority to regulate flying and the safe use of the
Natica’s airspace, not Indians. The Agencies’ actions are
beyond the scope of this mandate. In effect, the FAA, through
the Limitation Rule, delegated to the Indian Tribe the authority
to decide how many overflights there will be at the Grand
Canyon. In other words, commercial air tour providers can
launch an unlimited number of overflights as long as they pay
the Indian Tribe for the use of its runways. There is no doubt
this arrangement is profitable for the Indians and may be
rationally related to bettering the conditions of the Indian Tribe,
but it cannot possibly be reconciled with Congress’s instruction
to the FAA to reduce noise of air traffic over the Grand Canyon.
By its decision below, the District of Columbia Circuit
“extend[ed] the limited exception of Mancari to a new and
larger dimension,” Cayetano, 528 U.S. at 520, by according the
Agencies the same treatment as this Court accorded the BIA,
(notwithstanding this Court’s caution that “the BIA is truly sui
generis,” Mancari, 417 U.S. at 554) and by applying the
language of Mancari to all matters tribal (notwithstanding this
Court’s admonition that Mancari was limited solely to matters
relating to “quasi-sovereign authority [and] self-governance,”
Cayetano, 528 U.S. at 518, 520).
15
Ii
THE DISTRICT OF COLUMBIA CIRCUIT’S
APPLICATION AND CONSTRUCTION OF
MANCARI’S “UNIQUE INDIAN INTERESTS” TEST
CONFLICTS WITH THE NINTH CIRCUIT’S
DECISION IN WILLIAMS v. BABBITT
There is aconflict between the District of Columbia Circuit
and the Ninth Circuit on the construction and application of the
Mancari “unique Indian interests” test when the racial
classification is aimed at assisting Indians economically. In the
decision below, the District of Columbia Circuit said that the
exemption carved out by the Agencies for members of the
Hualapai Tribe meets the rational basis test of Mancari simply
because the federal Agencies said that it did. This was so,
according to the court below, even though there is nothing in
the Overflights Act to indicate that Congress intended to
provide a competitive advantage to Indians. The court of
appeals did not independently examine whether the exemption
was rationally tied through the purposes of the Overflights Act
to “unique Indian interests” but simply deferred to the federal
Agencies.
Unlike the District of Columbia Circuit, the Ninth Circuit
in Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997), recognized
that because the interpretation of the Reindeer Act of 1937, 50
Stat. 900 (Sept. 1, 1937), 25 U.S.C. § 500, et seq., by the
Interior Board of Indian Appeals (IBIA) created a racial
classification that “pushes the constitutional envelope,” the
reviewing court was required to conduct its own examination. ’
7 The Ninth Circuit declined to defer to the agency’s interpretation
under Chevron U.S.A. Inc. v. Naturai Resources Defense Council,
467 U.S. 837 (1984), explaining that when a federal agency’s
interpretation raises grave and serious constitutional doubts,
reviewing courts are required “to scrutinize constitutional objections
(continued...)
16
The Ninth Circuit also accepted that there was doubt as to
the appropriate standard of constitutional review. It recognized
that in Adarand, Justice Stevens dissented on several grounds,
but objected that the majority’s concept of consistency would
subject preferences for Native Americans to the same scrutiny
as invidious discrimination against minorities. Williams, 115
F.3d at 665 (citing Adarand, 515 U.S. 244-45 (Stevens, J.,
dissenting)). The Ninth Circuit speculated that “[i]f Justice
Stevens is right about the logical implications of Adarand,
Mancari’s days are numbered.” Id. at 665.
With these constitutional doubts unresolved, the Ninth
Circuit assumed that the Mancari doctrine retained some
vitality as long as the legislation provides “special treatment
[that] can be tied rationally to the fulfillment of Congress’
unique obligation toward the Indians.” Williams, 115 F.3d at
663. According to the Ninth Circuit, to be “tied rationally”
means the legislation must relate to “native land, tribal or
communal status, or culture.” Jd. at 664.
As explained by the Ninth Circuit:
Legislation that relates to Indian land, tribal status,
self-government or culture passes Mancari’s rational
relation test because “such regulation is rooted in the
unique status of Indians as a ‘separate people’ with
their own political institutions.”
Id. (quoting United States v. Antelope, 430 U.S. 641 (1977)).
Applying this construction of Mancari, the Ninth Circuit
found that IBIA’s interpretation of the Reindeer Act, as barring
all in Alaska who are uot Natives from owning imported
reindeer, was wrong. The court reasoned that it provided “a
naked preference for Indians unrelated to unique Indian
7 (...continued)
to a particular agency skeptically.” Williams v. Babbitt, 115 F.3d at
662.
17
interests,” because it involved a commercial industry “that is
not uniquely native.” The court found that the special
preference “in no way related to native land, tribal or communal
status or culture.” Williams, 115 F.3d at 663.
Based upon this cc.astruction of Mancari, the Ninth Circuit
concluded that the Secretary’s construction of the Act, albeit
“not unreasonable” and otherwise entitled to deference under
Chevron, raised “constitutional problems [that] are truly
‘grave,’” which called judicial “constitutional narrowing” into
play. Id. The court thereupon adopted what it deemed to be a
“less constitutionally troubling construction” of the Act,
namely, “as not precluding non-natives in Alaska from owning
and importing reindeer.” Jd. at 666.
In sharp contrast to the Ninth Circuit, the decision below
carved out a Native American commercial advantage,
protecting members of an Indian Tribe’s access to air tourists
and air tour operators which is now guaranteed by the
government. This new commercial advantage is “unrelated to
unique Indian interests.” It is a “naked preference for Indians”
that provides an economic advantage to members of a Tribe
solely on account of their status as Native Americans. Given
the grave constitutional concerns raised by such a troubling
regulatory regime, this Court should review the District of
Columbia Circuit’s understanding and application of the
constitutional principles involved.
+
18
CONCLUSION
For all the foregoing reasons, the petition for writ of
certiorari should be granted.
DATED: December, 2002.
Respectfully submitted,
SHARON L. BROWNE
Counsel of Record
ANTHONY T. CASO
Pacific Legal Foundation
10360 Old Placerville Road,
Suite 100
Sacramento, California 95827
Teiephone: (916) 362-2833
Facsimile: (916) 362-2932
Counsel for Petitioner
i
TABLE OF CONTENTS
Decision from the United States Court of Appeals for
the District of Columbia Circuit (August 16, 2002)
National Parks Overflights Act (16 U.S.C. § la-1)
Regulatory Flexibility Act (5 U.S.C. §§ 601-612)
Judicial Review of Agency Actions (5 U.S.C. §§ 701-
706)
Judicial Review of Federal Aviation Administration
Orders (49 U.S.C. § 46110)
Federal Aviation Administration Final Rule (65 F.R.
17,708) April 4, 2000
Correction to Federal Aviation Administration Final
Rule (65 F.R. 33,751) May 25, 2000
Appendix A-1
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2002 Decided August 16, 2002
| No. 00-1201
UNITED STATES AIR TOUR ASSOCIATION, ET AL.,
PETITIONERS
V.
FEDERAL AVIATION ADMINISTRATION, ET AL.,
RESPONDENTS
GRAND CANYON TRUST, ET AL.,
INTERVENORS
Consolidated with
00-1212
On Petitions for Review of an Order of the
Federal Aviation Administration
William Davis Thode and Joseph F. Becker argued the
cause for petitioners United States Air Tour Association, et al.
With them on the briefs was William Perry Pendley. Lorraine
B. Halloway and Timothy M. Biddle entered appearances.
Bills of costs must be filed within 14 says after entry of judgment. The court
looks with disfavor upon motions to file bills of costs out of time.
Appendix A-2
Alexander E. Dreier argued the cause for petitioners Grand
Canyon Trust, et al. With him on the briefs were Michael L.
Kidney, Catherine S. Stetson, Jeffrey C. Nelson, and Robert
Wiygul.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief was
Ellen J. Durkee, Attorney.
Michael L. Kidney, Catherine E. Stetson, Alexander E.
Dreier, Jeffrey C. Nelson, and Robert Wiygul were on the brief
of intervenors Grand Canyon Trust, et al.
Glenn M. Feldman argued the cause and filed the brief for
intervenor Hualapai Indian Tribe.
Before: EDWARDS, HENDERSON, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: As part of an ongoing effort to
reduce aircraft noise in Grand Canyon National Park, the -
Federal Aviation Administration (FAA) promulgated a rule
limiting the number of air tours permitted to fly over the Park.
Two groups of petitioners, one led by the United States Air
Tour Association and the other by the Grand Canyon Trust,
challenge that rule. We reject the challenges brought by the Air
Tour Association, but conclude that the challenges brought by
the Trust raise issues that require further consideration by the
FAA.
Appendix A-3
]
The history of regulation of aircraft overflights at Grand
Canyon National Park is set out in Grand Canyon Air Tour
Coalition v. FAA, 154 F.3d 455, 460-64 (D.C. Cir. 1998)
[hereinafter Grand Canyon I]. We recount some of that story
here and explain subsequent developments to the extent
necessary to give context to the present controversy.
A
In 1987, Congress enacted the National Parks Overflights
Act, Pub. L. No. 100-91, 101 Stat. 674 (set out at 16 U.S.C.A.
§ la-1 note). Section 3 of the Act declared that “[nJoise
associated with aircraft overflights at the Grand Canyon
National Park is causing a significant adverse effect on the
naturai quiet and experience of the park.” Overflights Act
§ 3(a). To address this problem, Congress required the
Secretary of the Interior to submit to the Administrator of the
FAA:
recommendations regarding actions necessary for the
protection of resources in the Grand Canyon from
adverse impacts associated with aircraft overflights.
The recommendations shall provide for substantial
restoration of the natural quiet and experience of the
park and protection of public health and safety from
adverse effects associated with aircraft overflights.
Id. § 3(b)(1) (emphasis added). Congress also required the
FAA to “prepare and issue a final plan for the management of
air traffic in the air space above the Grand Canyon.” Id.
§ 3(b)(2). That plan, the Act declared, “shall . .. implement the
recommendations of the Secretary without change unless the
[FAA] determines that implementing the recommendations
would adversely affect aviation safety.” Jd. Finally, Congress
Appendix A-4
directed the Secretary to submit, within two years of the
effective date of the plan, “a report discussing (A) whether the
plan has succeeded in substantially restoring the natural quiet
in the park; and (B) such other matters, including possible
revisions in the plan, as may be of interest.” Jd. § 3(b)(3).
In response to the Overflights Act, the Secretary of the
Interior submitted recommendations to the FAA in December
1987. In May 1988, the FAA implemented those
recommendations in the form of Special Federal Aviation
Regulation (SFAR) 50-2. See Special Flight Rules in the
Vicinity of the Grand Canyon National Park, 53 Fed. Reg.
20,264 (June 2, 1988). The regulation applied to aircraft flying
below 14,500 feet and established, inter alia, flight free zones
(areas into which aircraft may not fly), minimum altitudes, and
other rules constraining flight paths within the Park. It
remained in effect through 1997.
On September 12, 1994, the National Park Service (the
Park Service or NPS), on behalf of the Secretary of the Interior,
submitted the report to Congress required by section 3 of the
Overflights Act. See NPS, U.S. Dep’t of the Interior, Report on
the Effects of Aircraft Overflights on the National Park System
(published in 1995) [hereinafter 1994 NPS Report]. In that
report, the Park Service made _ several foundational
determinations. First, it decided that the appropriate measure
for quantifying aircraft noise was the percentage of time that
aircraft are audible. See id. at 60. Second, the Park Service
concluded that the key statutory phrase, “substantial restoration
of the natural quiet,” required that “50% or more of the park
achieve ‘natural quiet’ (i.e., no aircraft audible) for 75-100
percent of the day.” Jd. at 182. Subsequently, the agencies
determined that an aircraft was audible at three decibels above
the average natural ambient sound level. See FAA, U.S. Dep’t
of Transp., Environmental Assessment: Special Flight Rules in
Appendix A-5
the Vicinity of Grand Canyon National Park 4-4 to 4-5 (1996)
[hereinafter 1996 Environmental Assessment].
Applying these principles, the agencies concluded that,
under SFAR 50-2, only 31% of the Park enjoyed “a substantial
restoration of natural quiet”—by which they meant that only
31% of the Park experienced natural quiet for at least 75% of
the day. Special Flight Rules in the Vicinity of Grand Canyon
National Park, 61 Fed. Reg. 69,302, 69,317 (Dec. 31, 1996)
(hereinafter 1996 Final Rule].' Moreover, the agencies
predicted that without revisions to the existing regulations,
projected growth in the number of air tours would cause the
percentage of the Park enjoying substantial restoration of
natural quiet to drop to less than 10% by the year 2010. Jd.
On December 31, 1996, the FAA issued a final rule that
~ adopted the definitions contained in the 1994 NPS Report,
including the definition of substantial restoration of the natural
quiet. See 1996 Final Rule, 61 Fed. Reg. at 69,305-10. Among
other things, the 1996 Final Rule also established new flight
free zones, instituted flight curfews, and set a cap on the
number of aircraft that could fly over the park—although not on
the number of flights. See id. at 69,317, 69,332. In addition to
the 1996 Final Rule, the FAA proposed two further rules: one
to modify flight paths in the Park; the other to require operators
to use quieter aircraft. See Proposed Air Tour Routes for the
' When the agencies discuss their current progress toward “a
substantial restoration of natural quiet,” they refer to the percentage
of the Park experiencing natural quiet for at least 75% of the day.
When they discuss the overall statutory goal of “substantial
restoration of the natural quiet,”” however, they refer to a situation in
which at least 50% of the Park achieves natural quiet for at least 75%
of the day. Depending upon the context, we will use the phrase in
the same two ways in this opinion.
Appendix A-6
Grand Canyon National Park, 61 Fed. Reg. 69,356 (Dec. 31,
1996); Noise Limitations for Aircraft Operations in the
Vicinity of Grand Canyon National Park, 61 Fed. Reg. 69,334
(proposed Dec. 31, 1996). The FAA predicted that the 1996
Final Rule, in conjunction with the two proposed rules, would
meet the statutory goal of substantial restoration of the natural
quiet by the year 2008. See Noise Limitations for Aircraft
Operations, 61 Fed. Reg. at 69,329.
In October 1997, the FAA discovered that it had
significantly underestimated the number of tour aircraft
operating in the Park, and that as a consequence the 1996 Final
Rule would be less effective than it had thought. See Special
Flight Rules in the Vicinity of Grand Canyon National Park,
62 Fed. Reg. 58,898, 58,899 (Oct. 31, 1997). After oral
argument in Grand Canyon I, the FAA informed the court that
it was considering placing a cap on the number of flights, in
addition to the 1996 Final Rule’s cap on the number of aircraft.
See Grand Canyon I, 154 F.3d at 464.
B
In Grand Canyon I, several groups of petitioners —
challenged provisions of the 1996 Final Rule. The principal
challenges came, as they do here, from a group of air tour
operators (the Air Tour Coalition) that included members of
petitioner Air Tour Association, and from a group of
environmental organizations led by petitioner Grand Canyon
Trust. The air tour operators argued that the rule did “too
much, too soon,” while the Trust argued that it did “too little,
too late.” Grand Canyon I, 154 F.3d at 459-60. We upheld the
rule against both challenges.
In the course of our decision, we affirmed—against
challenges from both the Coalition and the Trust—the Park
Appendix A-7
Service’s definition of “substantial restoration of the natural
quiet” as “50% or more of the park achiev[ing] ‘natural quiet’
(i.e., no aircraft audible) for 75-100 percent of the day.” That
definition, we said, was a reasonable construction of an
ambiguous statutory phrase. Jd. at 466-67 (citing Chevron
U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 841-43
(1984)). We also upheld as reasonable the agencies’
three-decibels-above-ambient measure of audibility, and we
rejected the Air Tour Coalition’s contention that the agencies
had ignored their statutory obligation to consider the actual
experience of Park visitors. Jd. at 465-67, 469. We did not
need to decide whether there was such a statutory obligation,
because it was clear that the agencies’ definition and audibility
measure were specifically developed to address and to enhance
the experience of Park visitors. Jd. Grand Canyon I also
observed that the Overflights Act “clearly divides the
institutional responsibilities between” the FAA and the Park
Service. Jd. at 468. Because the Act directs the FAA to
“implement the recommendations of the Secretary without
change” unless they would adversely affect aviation safety, we
held that the FAA “had no choice but to adopt the Park
Service’s recommendations” regarding substantial restoration
of the natural quiet. Jd.
Finally, we noted the Trust’s complaint that, using the Park
Service’s definition and the FAA’s recent reevaluation of its
data, neither the 1996 Final Rule nor the two additional
proposed rules would achieve Congress’ goal of substantially
restoring natural quiet in the Park. We agreed that it would be
arbitrary and capricious for the government not to intend to
achieve the congressional goal on any timetable at all. Jd. at
477. We accepted, however, the FAA’s assurance that it still
“anticipates meeting the goal of substantial restoration by 2008”
through implementation of the two proposed rules and
consideration of a cap on the total number of overflights. Jd. at
478. In so doing, we emphasized that the Trust could raise its
Appendix A-8
claim again if “the FAA does not issue additional regulations
reasonably promptly, or if those regulations do not appear likely
to achieve the statutory goal on a reasonable timetable.” Jd.
C
On April 4, 2000, the FAA published two additional rules
governing flights over the Grand Canyon. One of those rules
(the Airspace Rule), not at issue here, modifies air flight paths
in the Park.” The second rule, the Limitations Rule, is the
subject of the petitions for review filed in this case. That rule
imposes a cap on the total number of commercial air tours that
operators may run in the Park. See Commercial Air Tour
Limitation in the Grand Canyon National Park Special Flight
Rules Area, 65 Fed. Reg. 17,708 (April 4, 2000) (codified at 14
C.F.R. §§ 93.303-.325) [hereinafter Limitations Rule]. Under
the Limitations Rule, an air tour operator may not conduct more
flights in the Park than it conducted during the base year of May
1, 1997 through April 30, 1998. 14 C.F.R. § 93.319(a), (b).
In developing the Limitations Rule, the FAA and the Park
Service issued three associated documents that detailed the
methodology they used to quantify noise levels in the Park and
to measure progress toward the goal of substantial restoration
of the natural quiet. First, the Park Service announced in July
1999 that it was changing the threshold at which it would
regard aircraft noise as audible in part of the Park. See Change
? See Modification of the Dimensions of the Grand Canyon National
Park Special Flight Rules Area and Flight Free Zones, 65 Fed. Reg.
17,736 (April 4, 2000). On October 17, 2001, this court severed
challenges to the Airspace Rule from those to the Limitations Rule
at issue here, and held the former challenges in abeyance pending
ongoing FAA administrative proceedings.
Appendix A-9
in Noise Evaluation Methodology for Air Tour Operations Over
Grand Canyon National Park, 64 Fed. Reg. 38,006 (July 14,
1999) [hereinafter Change in Noise Evaluation Methodology].
As discussed above, the agencies had previously adopted a
threshold of three decibels above the average natural ambient
sound level, a measure of audibility we affirmed in Grand
Canyon I. In the Change in Noise Evaluation Methodology, the
Park Service divided the Park into two zones: Zone One,
encompassing about one-third of the Park, includes the more
developed areas; Zone Two, encompassing two-thirds, contains
the backcountry. The Park Service announced that in Zone One
it will continue to consider aircraft audible at three decibels
above the average natural ambient level. 64 Fed. Reg. at
38,006-08. For Zone Two, however, the Park Service
determined that aircraft noise is audible if it is eight decibels
below the average natural ambient level. Jd.
Second, in January 2000, the Park Service issued a review
of its Change in Noise Evaluation Methodology. NPS, Dep’t
of the Interior, Review of Scientific Basis for Change in Noise
Impact Assessment Method Used at Grand Canyon National
Park (2000) [hereinafter 2000 NPS Review]. The review
explained in detail the acoustic model used in assessing noise
impacts in the Park. It also reaffirmed the Park Service’s 1994
definition of “substantial restoration of the natural quiet” as:
“Fifty percent or more of the Park achieving ‘natural quiet’ (i.e.,
no aircraft audible) for 75-100 percent of the day.” Jd. at 16.
And it stated that “[t]his definition is a threshold not to be
exceeded on any given day . . . and refers to . . . the 12 hour
daylight period . . . during which air tours occur.” Jd.; accord
id. at 4-5.
Third, in February 2000, the FAA issued a Final
Supplemental Environmental Assessment in which it analyzed
the effects that it expected the Limitations Rule to have on
noise in the Park. See FAA, U.S. Dep’t of Transp., Final
Appendix A-10
Supplemental Environmental Assessment: Special Flight Rules
in the Vicinity of Grand Canyon National Park (2000)
[hereinafter FSEA]. Of particular importance here, the FSEA
stated that the FAA intended to use an “average annual day”
standard when determining the percentage of “the day” that is
restored to natural quiet at a given location. See id. at 4-12,
4-18, F-4. The assessment also made clear that the FAA’s
noise model only accounts for noise from tour aircraft, and does
not consider noise from other aircraft that fly over the Grand
Canyon, including commercial jets, general aviation, and
military flights. Jd. app. G, at 40.
Applying these standards, the FAA concluded that the
Limitations Rule would make “significant steps towards
substantially restoring natural quiet,” Limitations Rule, 65 Fed.
Reg. at 17,713, although the combined effect of all of the
agency’s rulemakings would still not achieve the goal of having
50% of the Park experience natural quiet for at least 75% of the
day, id. at 17,711. The FAA estimated that only 32% of the
Park currently achieved that mark, and that if no further action
were taken, future air tour growth would reduce that to 25% of
the Park in nine to ten years. Jd. at 17,724. Adding the new
2000 rules, the FAA predicted, would increase the percentage
of the Park experiencing the substantial restoration of natural
quiet to above 41% and maintain that level in the future. /d.;
see FSEA at 4-18 (predicting substantial restoration of 43.6%
of the Park through 2003 and 43.5% in 2008). But the agency
recognized that additional steps, including implementation of
the still-pending quiet technology rule, would be necessary to
achieve Congress’ goal in the Overflights Act. Limitations
Rule, 65 Fed. Reg. at 17,714.
D
As noted above, two groups of petitioners have filed
challenges to the Limitations Rule. The first is led by the
ae 5 a ‘
—w
Appendix A-11
United States Air Tour Association, a trade organization whose
members fly air tours over the Park. The second, led by the
Grand Canyon Trust, is a group of six environmental
organizations. Petitioners level a number of challenges at the
rule, raising questions of statutory construction, regulatory
interpretation, and the rationality of the agencies’
methodologies and policy choices.
As to questions of statutory construction, where legislation
is “silent or ambiguous with respect to [a] specific issue,” we
are obligated to defer to an agency’s interpretation as long as it
is “based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843. Similarly, we defer to an agency’s
reading of its own regulation, unless that reading is “plainly
erroneous or inconsistent with the regulation.” Auer v. Robbins,
519 U.S. 452, 461 (1997) (internal quotation marks omitted).
We also examine agency regulations to determine whether they
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” Administrative Procedure Act, 5
U.S.C. § 706(2)(A). In that regard, the question for the court is
whether the agency has considered the relevant factors and
articulated a “‘rational connection between the facts found and
the choice made.’” Motor Vehicle Mfrs. Ass'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
Finally, by statute the FAA’s findings of fact “are conclusive”
if they are “supported by substantial evidence.” 49 U.S.C.
§ 46110(c).
We apply these principles to our analysis of the Air Tour
Association’s challenges to the Limitations Rule in Part II
below, and to those of the Grand Canyon Trust in Part III.
Appendix A-12
II
The Air Tour Association asks this court to hold the
Limitations Rule unlawful for five principal reasons: (i) it was
prompted by an improper change in the definition of “natural
quiet”; (ii) the acoustic methodology that justifies the rule is
scientifically flawed; (iii) the FAA arbitrarily and capriciously
issued the rule without first promulgating a quiet technology
rule; (iv) in promulgating the rule, the FAA violated the
Regulatory Flexibility Act, 5 U.S.C. § 601 et seq.; and (v) the
rule arbitrarily and capriciously ignores the needs of the elderly
and disabled. These five contentions are considered in the
following sections.
A
In determining the need for the Limitations Rule, as well
as its predicted impact on noise in the Park, the FAA employed
the standards announced in the Park Service’s 1999 Change in
Noise Evaluation Methodology. Although the new
methodology continues to use the three-decibels-above-ambient
threshold for measuring audibility in the more-developed areas
of the Park, it substitutes an eight-decibels-below-ambient
threshold for use in backcountry areas. The Air Tour
Association contends that this reflects a new interpretation of
the statutory term “natural quiet.” It argues that while the
previous interpretation was based on “noticeability,” measuring
sounds that a person not engaged in active contemplation of the
Park likely would notice, the new interpretation substitutes a
“detectability” standard, measuring any sound that is detectable
to a vigilant observer.
The Air Tour Association further asserts that this change
is unlawful because it is inconsistent with our opinion in Grand
Canyon I, which upheld the three-decibels-above-ambient
threshold. The new threshold for Zone Two is contrary to
Appendix A-13
Grand Canyon I, the tour operators argue, because it is
unrelated to how visitors actually experience aircraft noise in
the Park. According to the Air Tour Association, visitors to the
Grand Canyon do not attentively listen for such sounds, and
would not notice below-ambient-level noise. Because the new
standard is inconsistent with Grand Canyon I, and because it
represents a change from the prior standard, the Air Tour
Association urges us to accord it less deference than we would
ordinarily extend to an agency determination.
We must begin with the last point, because it misperceives
the scope of our review. The Supreme Court “has rejected the
argument that an agency’s interpretation ‘is not entitled to
deference because it represents a sharp break with prior
interpretations’ of the statute in question.” Rust v. Sullivan, 500
U.S. 173, 186 (1991) (quoting Chevron, 467 U.S. at 862). An
agency is not required to establish “rules of conduct to last
forever,” but rather “must be given ample latitude to adapt [its]
rules and policies to the demands of changing circumstances.”
State Farm, 463 U.S. at 42 (internal quotation marks omitted).
Nor does the fact that we previously affirmed an agency
interpretation fix that interpretation in stone. In Grand Canyon
I we held that the standards employed in the 1996 Final Rule
reflected a reasonable construction of the Overflights Act. 154
F.3d at 469. That does not preclude a new standard,
promulgated pursuant to notice and comment as this one was,
from being reasonable as well. What the Park Service must do
to sustain its decision is justify the change in course with a
“reasoned analysis.” State Farm, 463 U.S. at 57 (quoting
Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852
(D.C. Cir. 1970)); see Rust, 500 U.S. at 186-87.
The Park Service has provided that reasoned analysis.
First, it contends that it has not changed the underlying
definition of natural quiet. See Change in Noise Evaluation
Methodology, 64 Fed. Reg. at 38,006. The original 1994 NPS
Appendix A-14
definition, applied in the 1996 rule, was “no aircraft audible,”
1994 NPS Report at 182; 1996 Environmental Assessment at
4-2, which is the same definition we upheld as reasonable in
Grand Canyon I, see 154 F.3d at 461-62. According to the
agency, it continued to employ that definition during the
Limitations Rule rulemaking. See Change in Noise Evaluation
Methodology, 64 Fed. Reg. at 38,007 (“[A]udibility is the
basis for assessing progress toward the legislatively mandated
goal of substantially restoring natural quiet.”); id. at 38,011
(‘Natural quiet remains the same as ‘no aircraft audible.’”’).
What has changed, the Park Service says, is the threshold it
uses to measure audibility in Zone Two. The agency agrees
with the tour operators that the 1996 rule used a noticeability
threshold for determining when sounds become audible, based
on “the level at which visitors engaged in activities other than
contemplation of the national park are likely to hear aircraft
noise.” Change in Noise Evaluation Methodology for Air Tour
Operations Over Grand Canyon National Park, 64 Fed. Reg.
3969, 3971 (proposed Jan. 26, 1999) [hereinafter Proposed
Change in Noise Evaluation Methodology]; see also Change in
Noise Evaluation Methodology, 64 Fed. Reg. at 38,007. That,
it says, is what led to the original three-decibels-above-ambient
standard. But the Park Service contends that since 1996 it has
gathered more data and performed additional research. Jd. That
data, collected in Grand Canyon National Park, shows that “‘an
active listener could hear aircraft when their sound levels were
between 8 and 11 [decibels] below the A-weighted ambient.”
FSEA at 4-5; see Change in Noise Evaluation Methodology, 64
Fed. Reg. at 38,007; Proposed Change in Noise Evaluation
Methodology, 64 Fed. Reg. at 3971-72.’
3
The A-weighted level of a sound is a single number
determined by combining the sound levels in all frequencies.
This combining de-emphasizes the low and high frequencies
. (continued...)
Appendix A-15
The new studies resulted in the Park Service’s decision to
divide the Park into two zones, and to use different noise
thresholds for each zone. The agency continued to apply the
three-decibels-above-ambient threshold in the more-developed
areas of the Park, where visitors were often engaged in
activities other than contemplation. But it employed the new,
eight-decibels-below-ambient standard in the remaining, mostly
backcountry areas. In those areas, the Park Service was
concerned about the experience of visitors “sitting quietly but
actively seeking to experience the natural quiet and solitude of
the park.” Proposed Change in Noise Evaluation
Methodology, 64 Fed. Reg. at 3971. The Park Service’s
evidence is that such visitors are able to perceive aircraft noise
at the lower decibel level. Jd. As the agency explains, “the
threshold for Zone Two is set at 8 decibels below the average
ambient sound levels” because it is “a threshold which reflects
the point at which aviation noise can be heard (i.e., audible) by
ground visitors seeking to experience the natural and cultural
soundscapes of national parks.” Jd. at 3972. Thus, far from
representing a lack of concern for visitors’ experiences, the
agency adopted the distinction between the two zones precisely
because visitors experience sound differently in different areas.
Nor does the use of a threshold below the ambient indicate,
as the Air Tour Association contends, that aircraft noise is
banned even though it cannot be heard above the natural
ambient sound. Rather, it reflects the Park Service’s new
3 (...continued)
in a manner similar to the sensitivities of human hearing. The
A-weighted level is widely accepted as one of the best over-all
sound level metrics for analysis of transportation noise. It has
been shown to correlate well with human assessment of the
loudness or noisiness of a sound.
Change in Noise Evaluation Methodology, 64 Fed. Reg. at 38,001.
Appendix A-16
understanding that audibility depends not just on volume
(loudness), but also on frequency (pitch). Change in Noise
Evaluation Methodology, 64 Fed. Reg. at 38,011. As the
agencies explain, “studies conducted in the [Park] for the NPS
... have shown that individuals who are actively listening can
hear aircraft at lower levels than the ambient A-weighted sound
levels . . . because aircraft sound often contains tones that are
not present in the natural ambient sound.” FSEA at 4-5
(emphasis in original); see Change in Noise Evaluation
Methodology, 64 Fed. Reg. at 38,012.* Hence, in order to
preserve the definition of natural quiet as “no aircraft audible”
_ in the backcountry, the Park Service concluded that it was
necessary to change the threshold of audibility to below the
ambient level.
We conclude that the Park Service’s explanation for its
change in methodology—as well as its explanation of why that
change remains true to the agency’s original principles—are
reasonable, and that the change is neither arbitrary nor
capricious.
B
We next consider the Air Tour Association’s “scientific”
* The Park Service offers this example:
[D]uring a concert if we listen for a high note on the piccolo,
only the portion of the background sound ... that is of nearly the
same pitch can interfere with our ability to hear the piccolo.
The base violins can play as loudly as they like without the
piccolo becoming inaudible. ... Hence, the relative overall
“loudness” of the background and the target sounds is not the
key factor in the detection process. For a target sound to be
audible, it must . . . be louder than . . . background sounds in the
same frequency band.
Change in Noise Evaluation Methodology. 64 Fed. Reg. at 38,011.
Appendix A-17
challenges to the “noise model and related sound data” used by
the FAA and the Park Service in crafting the Limitations Rule.
Air Tour Ass’n Br. at 15. Again, our standard of review is
important. As a general matter, we “defer to the agency’s
reasonable exercise of its judgment and technical expertise” in
the area of “aircraft noise.” Grand Canyon I, 154 F.3d at 460;
see also Sierra Club v. Dep’t of Transp., 753 F.2d 120, 129
(D.C. Cir. 1985). When an agency uses a computer model, it
must “explain the assumptions and methodology used in
preparing the model and, if the methodology is challenged,
must provide a complete analytic defense.” Small Refiner Lead
Phase-Down Task Force v. EPA, 705 F.2d 506, 535 (D.C. Cir.
1983) (internal quotation marks omitted). Ultimately, however,
the “scientific nature” of a model “does not easily lend itself to
judicial review,” and our review “proceeds with considerable
deference to the agency’s expertise.” Appalachian Power Co.
v. EPA, 135 F.3d 791, 802, 814 (D.C. Cir. 1998). The principal
question for us is whether the agencies’ explanation of the
model’s assumptions and methodology is reasonable. See
generally Small Refiner, 705 F.2d at 535.5.°
The agencies used a noise model developed by the FAA,
known as the Integrated Noise Model (INM), to assess noise
impacts in the Park. The INM is “the most widely used civilian
software program for analyzing noise effects relating to changes
in airspace use.” 2000 NPS Review at 9. The Air Tour
5 Any agency model that satisfied this standard would also satisfy
the directive in the National Parks Air Tour Management Act of
2000, passed the day after the publication of the Limitations Rule,
that the agencies employ “reasonable scientific methods” when
assessing aircraft sound levels within the national parks. Pub. L. No.
106-181, tit. VII, § 808, 114 Stat. 185, 194 (set out at 49 U.S.C.A.
§ 40128 note).
Appendix A-18
Association does not challenge the use of the model itself, but
rather the way in which it was applied to the noise problem in
the Grand Canyon.
First, the Air Tour Association cites excerpts from the
report of a Park Service consultant, to the effect that “a more
complex metric is required to achieve satisfactory accuracy.”
Air Tour Ass’n Br. at 17 (quoting 2000 NPS Review app. F, at
23). But as the government points out, the “more complex
metric” recommended by the consultant was the one ultimately
used by the agencies, see 2000 NPS Review app. F, at 23, and
the consultant’s overall conclusion was that “the science being
used by NPS for noise modeling is grounded on extensive and
valid scientific data,” id. at Executive Summary 4; see id. at 1,
8. The Air Tour Association also contends that the INM
overestimates aircraft noise because the agencies disabled an
algorithm that “adjusts for “lateral attenuation”—sound
absorption by the ground and the air near the ground. But the
FAA reasonably responds that the algorithm was removed
because it is used to account for the effect of “flat, acoustically
soft terrain, such as grass, as would be found in the vicinity of
most major airports.” FSEA at 4-7. As the FAA explains, for
visitors near the rim of the Canyon “there is effectively no
ground surface between the source and receiver,” and in the
“vast majority of other locations . . . the ground surface is made
up of acoustically hard rock and packed dirt.” Jd.°
° The Air Tour Association further criticizes the Park Service for
excluding from its analysis data recorded at a number of collection
sites. The Service’s experts explain, however, that this data was
collected before the plan for measuring sound levels was finalized,
and that the excluded sites were not representative of the
predominant acoustic environments in the Park. 2000 NPS Review
app. C, at 8.
4
;
h,
4
:
24
;
Appendix A-19
Finally, the Air Tour Association cites its own expert, John
R. Alberti, for the proposition that the audibility threshold used
by the Park Service in Zone Two, eight decibels below the
ambient sound level, is scientifically unsupportable because
aircraft noise at that level cannot be heard by a listener with
normal hearing. Air Tour Ass'n Br. at 18 (citing Comments of
JR Engineering to NPS at 3 (Mar. 20, 1999)). The 2000 NPS
Review contains a detailed critique, based on analysis by the
agency’s own experts, of the Alberti study. 2000 NPS Review
app. B, at 5-11. The most serious problem with that study, the
Park Service explains, is that it used data “that cannot be
characterized ... as representative of the park or its many levels
of ambient sound.” Jd. at 5. In essence, Alberti began with a
significantly lower ambient level than that actually measured in
the Park’s acoustic environments, making his calculation of
eight decibels below that level considerably quieter than the
actual audibility thresholds the agencies will employ in Zone
Two. Id. at 5,8. Moreover, whatever the theoretical argument,
the Park Service reports as a fact that “technicians monitoring
the sound environment” in the Park “identified aircraft noise at
A-weighted levels of 8-12 decibels below the average
A-weighted natural ambient sound levels.” Proposed Change
in Noise Evaluation Methodology, 64 Fed. Reg. at 3972.
We conclude that the agencies and their experts have
presented a satisfactory analytic defense of their model, and
therefore reject this challenge from the Air Tour Association.
See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378
(1989) (“When specialists express conflicting views, an agency
must have discretion to rely on the reasonable opinions of its
own qualified experts.”).
Appendix A-20
C
The Air Tour Association also contends that the FAA acted
arbitrarily and capriciously by issuing the Limitations Rule
without first promulgating a quiet technology rule. As
described by the Association, such a rule would establish
standards for identifying “quiet aircraft technology” and would
implement “incentive” flight paths for aircraft employing such
technology. Air Tour Ass’n Br. at 20-21. According to the
Association, Congress first ordered the FAA to establish quiet
technology standards in the 1987 Overflights Act, and then did
so again in the National Parks Air Tour Management Act of
2000, Pub. L. No. 106-181, tit. VIII, 114 Stat. 185 (set out at 49
U.S.C.A. § 40128 note). Nonetheless, the FAA’s 1996
proposed rule on quiet technology is still not final.
The FAA notes that there is some irony in the air tour
operators’ new-found interest in a quiet technology rule, as they
have previously opposed such a rule. Limitations Rule, 65 Fed.
Reg. at 17,714. We also note that the operators have misread
both the Overflights Act and the Air Tour Management Act.
The Overflights Act does not contain a provision regarding
quiet technology. The Air Tour Management Act does direct
the FAA, by April 5, 2001, to “designate reasonably achievable
requirements” for aircraft to be “considered as employing quiet
aircraft technology” for purposes of relief from caps on flight
operations. § 804(a), (c). However, the Act also provides that
“if the Administrator [of the FAA] . . . will not be able to make
such designation” by that time, the FAA shall report to
Congress “the reasons for not meeting such time period.”
§ 804(a). The FAA submitted the required report. See FAA,
U.S. Dep’t of Transp., Quiet Aircraft Technology for Grand
Canyon (2001).’
7 Another statute, the Airport and Airway Safety, Capacity, Noise
(continued...)
Appendix A-21
Moreover, the FAA has offered a reasonable explanation
for why it has not yet issued a quiet technology rule. According
to the agency, there continue to be unresolved technical issues
regarding available technology and its noise effects within the
Grand Canyon, including the most basic issue: “how to define
quiet technology/noise efficiency.” Limitations Rule, 65 Fed.
Reg. at 17,714. The FAA’s brief represents that the agency
plans to issue a supplemental notice of proposed rulemaking to
invite further comment on the proposed rule. Resp’t’s Br. at 32.
In light of the technical difficulties the FAA is currently having
in finalizing a quiet technology rule, its decision to go ahead
with a cap on flights to ensure continuing progress toward
restoring natural quiet is reasonable. As we explained in Grand
Canyon I, “ordinarily, agencies have wide latitude to attack a
regulatory problem in phases.” 154 F.3d at 471.
D
The Regulatory Flexibility Act requires an agency
promulgating a final rule to prepare a regulatory flexibility
analysis that, inter alia, describes:
the steps the agency has taken to minimize the
significant economic impact on small entities
consistent with the stated objectives of applicable
7 (...continued)
Improvement, and Intermodal Transportation Act of 1992, also
mentioned “quiet aircraft technology.” Pub. L. No. 102-581, § 134,
106 Stat. 4872, 4888 (set out at 16 U.S.C.A. § 1-la note). Like the
others, it did not direct the FAA to implement a quiet technology
rule; it merely instructed the agency to submit a plan of action to
Congress “to manage increased air traffic over Grand Canyon
National Park . . . to meet the requirements established by [the
Overflights Act], including any measures to encourage or require the
use of quiet aircraft technology by air tour operators.” Jd.
Appendix A-22
statutes, including a statement of the factual, policy,
and legal reasons for selecting the alternative adopted
in the final rule and why each one of the other
significant alternatives to the rule considered by the
agency which affect the impact on small entities was
rejected.
5 U.S.C. § 604(a). Although the FAA did prepare a regulatory
flexibility analysis for the Limitations Rule, see 65 Fed. Reg. at
17,729-31, the Air Tour Association attacks that analysis as
defective in two principal respects: (1) it underestimates the
burden the Limitations Rule imposes on tour operators by using
data regarding the number of tours from May 1997 to April
1998, a period they contend was nonrepresentative; and (2) it
fails to consider significant alternatives that would minimize
the Rule's economic impact on small entities.
Neither attack is justified. As the FAA explains, it selected
the 1997-98 base year because it was “the most accurate and
current data available during the period that this rule was being
drafted.” Limitations Rule, 65 Fed. Reg. 17,718. Indeed,
selection of that year actually favors the air tour operators, since
subsequent data shows that in the following year the number of
air tours declined. Jd. Moreover, the agency plainly did
consider alternatives to the rule, expressly listing nine and
explaining its reasons for rejecting them. Jd. at 17,729-30. The
Air Tour Association does not point to any alternative that it
believes was unreasonably rejected other than the quiet
technology rule,-which, as we have discussed above, the FAA
has reasonably put off for the present. Because the FAA’s
analysis was reasonable, the Limitations Rule survives the Tour
Association’s challenge under the Regulatory Flexibility Act.
See Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61,
79-80 (D.C. Cir. 2000); Grand Canyon I, 154 F.3d at 470-71.
Appendix A-23
E
Finally, the Air Tour Association contends that the
Limitations Rule is arbitrary and capricious because it ignores
the needs of the elderly and disabled, who find it harder to visit
the Park on the ground. The Association asserts that “nearly
half of all Grand Canyon visitors never ‘visit the Park on the
ground,” and that “[a]s many as half of these ‘air only’ visitors
are elderly, disabled or mobility impaired and have no
meaningful way to experience Grand Canyon except by
recreational air tour.” Air Tour Ass’n Br. at 22-23 (quoting
Limitations Rule, 65 Fed. Reg. at 17,716). By “reducing the
annual number of recreational air tours” that can be taken by the
elderly and disabled, the Association contends that the
Limitations Rule fails to accommodate their needs. Jd.
Nearly every contention recounted in the preceding
paragraph contains a factual error. It is not true, for example,
that nearly half of Grand Canyon visitors never visit on the
ground. Rather, the authority cited by the Association actually
states that over half of air tour visitors also visit the Park on the
ground. Limitations Rule, 65 Fed. Reg. at 17,716. Indeed, in
another part of its brief, the Air Tour Association states that of
the more than 5 million people who visit the Grand Canyon
annually, only 750,000 visit by air tour. Air Tour Ass’n Br. at
9. And the Association further concedes that there is no record
support for its claim that as many as half of the “air only”
visitors are elderly, disabled, or mobility impaired. As the
Association notes, “the Administrative Record lacks any
reference to the demographics of ‘air only’ Grand Canyon
visitors.” Jd. at 23 n.5.
Finally, there is also no truth to the contention that the
agencies have failed to consider the needs of the elderly and
disabled. As the government explains, air tours are not the only
means by which these groups may view the Canyon, as the Park
Appendix A-24
has available such accommodations as handicapped-accessible
trails, mule rides, and raft trips. See Resp’t’s Br. at 34. Nor
does the Limitations Rule eliminate or even “reduc[e] the
annual number of recreational air tours”; it merely caps the
number of flights at current levels. Limiting the number of
Visitors at a given time in a national park is a standard measure
used to protect park resources, see Limitations Rule, 65 Fed.
Reg. at 17,716, and its application to the resource of “natural
quiet” is not unreasonable. It is therefore not surprising that the
Air Tour Association failed to return to this argument in its
reply brief.®
® The Air Tour Association also argues that the Limitations Rule
violates the equal protection component of the Fifth Amendment
because it exempts flights to and from the Hualapai Indian
Reservation from each tour operator’s annual allocation. See 14
C.F.R. § 93.319(f). The Association’s argument is founded upon
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), in
which the Supreme Court held that “all racial classifications . . . must
be analyzed by a reviewing court under strict scrutiny.” In Morton
v. Mancari, 417 U.S. 535 (1974), however, the Court upheld an
employment preference for Indians in the face of an argument similar
to that of the Air Tour Association, declaring that, “[a]s long as the
special treatment can be tied rationally to the fulfillment of
Congress’ unique obligation towards the Indians,” such treatment
must be upheld. /d. at 555. And there is no dispute that the Hualapai
exception is at least rationally related to “the government’s interest
in fulfilling its trust obligation” to the Tribe. Narragansett Indian
Tribe v. National Indian Gaming Comm'n, 158 F.3d 1335, 1340
(D.C. Cir. 1988). Although the Air Tour Association contends that
Adarand effectively overruled Mancari, the Supreme Court has made
clear that the lower courts do not have the power to make that
determination. See Agostini v. Felton, 521 U.S. 203, 237 (1997)
(“[I}f a precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of decisions,
the Court of Appeals should follow the case which directly controls,
leaving to this Court the prerogative of overruling its own decisions.”
(continued...)
Appendix A-25
Il
The Grand Canyon Trust raises two challenges of its own
to the decisions of the FAA. First, the Trust contends that the
agency unlawfully altered the Park Service’s definition of
substantial restoration of the natural quiet: from 50% of the
Park experiencing natural quiet for 75% of “any given day,” to
50% of the Park experiencing natural quiet for 75% of “the
average annual day.” Trust Br. at 12. Second, the Trust argues
that the FAA’s noise methodology is flawed because it only
accounts for noise from commercial air tours, while ignoring
noise from other types of aircraft. As a consequence of both
errors, the Trust contends that the FAA has greatly
overestimated the progress that the Limitations Rule makes
toward restoring natural quiet.
We consider these two challenges in sections B and C
below. Before doing so, we address the government’s
objections to our considering the Trust’s arguments at all.
A
The Trust filed its petition for review pursuant to 49 U.S.C.
§ 46110(a), which authorizes review in this circuit of certain
final “order[s] issued by the . . . Administrator of the Federal
Aviation Administration.”” The FAA does not dispute that the
Limitations Rule is a final order reviewable under that section.
® (...continued)
(internal quotation marks omitted)). And this circuit has continued
to apply Mancari post-Adarand. See Narragansett Tribe, 158 F.3d
at 1340.
* See also Puget Sound Traffic Ass'n v. Civil Aeronautics Bd., 536
F.2d 437, 438-39 (D.C. Cir. 1976) (holding that review under the
predecessor to § 46110(a) extended only to final orders).
Appendix A-26
See Limitations Rule, 65 Fed. Reg. at 17,708 (“This final rule
constitutes final agency action under 49 U.S.C. 46110.”). The
agency contends, however, that the Trust’s challenges are not
attacks on the FAA’s order, that the decisions the Trust does
attack are not final, and that the Trust’s challenges are not ripe
for judicial review.
The FAA’s first argument is that the Trust’s challenges are
not to the Limitations Rule, but rather to its definition of “the
substantial restoration of the natural quiet” and to its
methodology for measuring aircraft noise. These, the agency
contends, are neither reviewable orders themselves nor parts of
the Limitations Rule. But whether the definition and
methodology are independently “orders” is a question we need
not decide, as there is no doubt that they are both part of the
rulemaking record and integral to the agency’s rationale for
promulgating the Limitations Rule. The fact that they are
contained in a separate document, the Final Supplemental
Environmental Assessment, is of no moment; we similarly
reviewed the Park Service’s original definition of “substantial
restoration of the natural quiet” in Grand Canyon I, even
though that definition was contained in the 1994 NPS Report
rather than in the 1996 Final Rule. The FSEA was issued
concurrently with the Limitations Rule; and the rule’s Federal
Register notice repeatedly relies on it and incorporates it by
reference. See, e.g., Limitations Rule, 65 Fed. Reg. at 17,714
(noting that the noise methodologies “used in support of this
rule are explained further” in the FSEA); id. at 17,709-10
(noting that the- FAA placed the draft Supplemental
Environmental Assessment in the rulemaking docket for public
comment, and that those comments are “addressed in the
[FSEA] issued concurrently with this final rule”). Just as we
may examine other record material that provides the
underpinnings for the Limitations Rule, so also may we review
Ears 2s! le on ee ee
OPS Semin REEL RE
Appendix A-27
analytic documents issued by the agency that elaborate upon the
rule's rationale and assess its impact.'°
The FAA’s second argument is that the definition and
methodology are not final because “the course the FAA may
follow in future rulemakings” is “uncertain,” and the Park
Service “could revise” its recommendations. But as we have
only recently reiterated, “if the possibility . . . of future revision
in fact could make agency action non-final as a matter of law,
then it would be hard to imagine when any agency rule...
would ever be final as a matter of law.” General Electric Co.
v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002) (citing Appalachian
Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000)).
Both decisions at issue here represent fully-crystallized
determinations that the FAA used in promulgating the
Limitations Rule, and that it has given every indication it will
employ in future rulemakings. Because they represent the
“consummation of the agency’s decisionmaking process” and
are determinations from which “legal consequences will flow,”
they are final for purposes of judicial review. Bennett v. Spear,
520 U.S. 154, 177-78 (1997).
Third, the FAA contends that the Trust’s challenges are not
ripe for review. To determine whether a challenge to final
'0 Two circuit cases cited by the FAA to refute this proposition are
inapposite. In Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir.
1999), we concluded that we were without jurisdiction to review an
EPA Technical Background Document. Unlike the FSEA, that
document was not issued as part of or in support of a rulemaking, and
was “intended solely to provide information to the public and the
regulated community.” Jd. at 545-46. In Florida Power & Light Co.
v. EPA, 145 F.3d 1414, 1418-19 (D.C. Cir. 1998), we held that a
statement in the preamble of a proposed rule was unreviewable,
noting that—unlike the FAA in this case—the EPA had yet to take
final action on the proposed rule to which the statement was relevant.
Appendix A-28
agency action is ripe, we consider “the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration.” General Electric, 290 F.3d at 380
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).
“In determining the fitness of an issue for judicial review we
look to see whether the issue is purely legal, whether
consideration of the issue would benefit from a more concrete
setting, and whether the agency's action is sufficiently final.”
Id. We have already determined that the FAA’s definition and
methodology are sufficiently final. The challenges to those
decisions are fit for review in other respects as well.
Whether the FAA may use an average annual day as part
of its definition of substantial restoration, and whether it may
ignore the noise of non-tour aircraft, are purely legal issues.
See Fox Television Stations, Inc. v. FCC, 280 F.3d 1027, 1039
(D.C. Cir. 2002) (finding an issue fit for review because
whether an agency determination is arbitrary and capricious or
contrary to law is a “purely legal” question). And they arise in
the concrete setting of the Limitations Rule. Moreover, we see
no reason to believe that our consideration of these issues
would benefit from postponing review. As we have already
noted, there is nothing “tentative or interlocutory” about the
FAA’s definition and methodology; Appalachian Power, 208
F.3d at 1022, and there is no prospect that they will change in
the near future unless questioned by this court. At oral
argument, the government suggested that the Trust should wait
until the FAA claims natural quiet has been restored to 50% of
. the Park, and then appeal if it disagrees. But the Trust’s
argument is that “under FAA’s interpretation of the
[Overflights] Act it will never achieve that mandate.” Trust Br.
at 23-24 (citing our statement in Grand Canyon I, 154 F.3d at
477, that it would be arbitrary and capricious for the FAA to
have no intention of achieving the Act’s goal). If we assume
as we must for purposes of this ripeness analysis that the
Appendix A-29
Trust’s challenges are valid,'' then its argument is
well-founded. For the FAA to substantially restore natural
quiet to 50% of the Park on “any given day” (as the Trust
contends is required), the agency would have to restore quiet to
significantly more than 50% of the Park on the “average annual
day.” See infra Part III.B. And the FAA has never indicated
that it has any plans to achieve such a result.
Finally, again assuming the validity of the Trust’s
arguments, it will suffer hardship if we withhold consideration
now.’ The Trust’s members visit the Park and wish to
experience its natural serenity. As the FAA stated in the
Federal Register notice for the Limitations Rule, it promulgated
that rule on the assumption that it would make “significant
steps towards substantially restoring natural quiet.” 65 Fed.
Reg. at 17,713. Indeed, the FAA predicted that the Limitations
Rule, together with the 2000 Airspace Rule and other existing
regulations, would substantially restore natural quiet to more
than 41% of the Park. Id. at 17,724. But the Trust contends
that the flaws in the agency's definition and methodology cause
it to significantly overestimate its progress toward the statutory
goal (correctly understood)—so much so that the true
percentage of the Park that will be substantially restored to
natural quiet is below 19%."
"| See, e.g., Better Gov’t Ass'n v. Dep't of State, 780 F.2d 86, 94
(D.C. Cir. 1986).
12 See City of Houston v. HUD, 24 F.3d 1421, 1431 n.9 (D.C. Cir.
1994) (“[W]here there are no institutional interests favoring
postponement of review, a petitioner need not satisfy the hardship
prong.”).
'3_ As we discuss in Part III.B below, the Trust points to evidence in
the record that, using an “any given day” rather than an “average
annual day” standard, only 19% of the Park will be substantially
(continued...)
SSC
Appendix A-30
Crediting the government with a good-faith intent to
achieve the goal of the Overflights Act, the Trust contends that
if the FAA knew it was making as little progress toward
achieving that goal as in fact it is, it would have “to impose
more stringent regulation on air tours to make the progress it
sought to make in the [Limitations] Rule.” Trust Reply Br. at
3. The FAA might, for example, reduce rather than merely cap
the number of authorized air tour flights. We cannot say that
the prospects of the Trust achieving such benefits are
speculative merely because they depend upon the government's
good faith. Cf. FEC v. Akins, 524 U.S. 11, 25 (1998) (holding
that the plaintiff had standing even though the agency might
have reached the same decision had it agreed with the plaintiff s
view of the law); id. (“If a reviewing court agrees that the
agency misinterpreted the law, it will set aside the agency’s
action and remand the case—even though the agency . . . might
later, in the exercise of its lawful discretion, reach the same
result for a different reason.””). We are therefore satisfied that
the Trust’s contentions are ripe for review and proceed to
address them.
B
As we have discussed, section 3(b)(1) of the Overflights
Act gives the Secretary of the Interior the responsibility to
develop a definition of “substantial restoration of the natural
quiet,” a responsibility that the National Park Service has
performed on behalf ofthe Secretary. See Grand Canyon I, 154
3 (...continued)
restored to natural quiet. Moreover, as we discuss in Part III.C, even
that figure is based on a model that ignores noise from non-tour
aircraft, and record evidence indicates that including that noise may
well further reduce the percentage of the Park to which natural quiet
will be substantially restored.
aE
Appendix A-31
F.3d at 468. In its 1994 report, the Park Service defined the
term as requiring that 50% of the Park experience natural quiet
at least 75% of “the day.” See 1994 NPS Report at 182. In its
2000 Final Supplemental Environmental Assessment, the FAA
stated that it interpreted the phrase “the day” in the Park
Service's definition to mean the “average annual day.” FSEA
at 4-18 to 4-19; see id. at 4-12.
The Trust contends that the FAA's interpretation is
unlawful because it substitutes a new FAA definition, “the
average annual day,” for what the Trust believes to be the Park
Service’s meaning, “any given day.” The Trust further
contends that the FAA’s interpretation results in a definition of
the statutory term, “substantial restoration of the natural quiet,”
that is arbitrary and unreasonable. The FAA replies that
because the phrase “the day” is ambiguous, this court should
defer to its interpretation.
In Grand Canyon I we held that the statutory term was
ambiguous, and we therefore deferred to the Park Service’s
definition. 154 F.3d at 466-67 (citing Chevron, 467 U.S. at
841-43). There is no question that the phrase, “the day,” in the
Park Service’s definition is also ambiguous, and that the Park
Service is entitled to deference for its interpretation of its own
definition. See Auer, 519 U.S. at 461. The problem for the
FAA, however, is that it is not the Park Service, and “deference
is inappropriate when [an agency] interprets regulations
promulgated by a different agency.” Office of Pers. Mgm'’t v.
FLRA, 864 F.2d 165, 171 (D.C. Cir. 1988); see Dep’t of the
Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988). Nor
is the FAA entitled to deference for its own interpretation of
“substantial restoration of the natural quiet,” as Congress
expressly reserved for the Secretary of the Interior the authority
to interpret that statutory term. Overflights Act § 3(b)(2); see
Grand Canyon I, 154 F.3d at 468; see also Dep't of the
Treasury, 837 F.2d at 1167 (“Under the law of this circuit,
Appendix A-32
when an agency interprets a statute other than that which it has
been entrusted to administer, its interpretation is not entitled to
deference.”’).
As far as we can determine, the National Park Service has
addressed the meaning of “the day” in its definition of
substantial restoration on only one occasion: the January 2000
review of its Change in Noise Evaluation Methodology, issued
just three months before the FAA issued the Limitations Rule.
'4 Tn that review, the Park Service stated that it had defined the
statutory term, “substantial restoration of the natural quiet,” as:
Fifty percent or more of the Park achieving ‘natural
quiet’ (i.e., no aircraft audible) for 75-100 percent of
the day. This definition is a threshold not to be
exceeded on any given day .. . and refers to the 12
hour daylight period. . . . The NPS believes that it is
a reasonable and rational definition.
2000 NPS Review at 16 (emphasis added); accord id. at 4-5.
This statement clearly supports the Trust’s contention that “the
'4 The FAA points us to the “inside cover page” of the FSEA as
demonstrating Park Service approval of the FAA's average annual day ©
interpretation. Resp’t’s Br. at 49 n.8. The FSEA, however, is a lengthy
FAA document, the inside cover of which says nothing more than that the
Department of the Interior is a “cooperating agency.” The FAA also argues
that the Park Service adopted an “average annual day” standard in the
Change in Noise Evaluation Methodology, in which the Service declared that
“the time period of interest is the day (i.e., the average 12 daylight hours).”
64 Fed. Reg. at 38,007. But that declaration merely states that substantial
restoration of natural quiet must be achieved during daylight, which on
average lasts 12 hours, and that quiet at night (when air tours do not fly) does
not count in the calculation. See Grand Canyon I, 154 F.3d at 475 n.19. It
says nothing about averaging noise over an entire year.
Appendix A-33
day” means “any given day,” and contradicts the FAA’s view
that it means “the average annual day.”"
The FAA’s “average annual day” interpretation appears to
be inconsistent not only with the 2000 NPS Review, but also
with the premise of the Park Service’s definition of substantial
restoration, a premise that the FAA itself has repeatedly
endorsed. That premise is that aircraft noise should be
regulated to enhance the experience of Park visitors. As we
said in Grand Canyon I, both the 1994 NPS Report and the
notice announcing the 1996 Final Rule were replete with
| '5 Although the government contends that the 2000 NPS Review is
merely a “technical document” that cannot be taken to represent the
views of the agency, Resp’t’s Br. at 51, the review gives every
appearance of being authoritative. Indeed, the introduction states
that “the National Park Service (NPS) has prepared the following
report” in “response to language in [a] House Appropriations Bill.”
2000 NPS Review at 4. In any event, whether or not the review is
decisive affirmative evidence of the Secretary’s view, it creates more
than enough doubt to justify a remand.
At oral argument, government counsel also suggested that,
because the Park Service is a co-respondent in this case, we should
assume that the views expressed in the government's brief regarding
the meaning of “the day” are those of the Park Service. Although
deference to an agency’s interpretation of its own regulation “is not
to be withheld merely because the agency’s reading of the regulation
comes in form of a legal brief,” that rule applies only where there is
““no reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter in question.’”
Drake v. FAA, 291 F.3d 59, 68 (D.C. Cir. 2002) (quoting Auer, 519
U.S. at 462). “In conducting this inquiry, we consider whether the
agency has ‘ever adopted a different interpretation of the regulation
or contradicted its position on appeal.’” Jd. at 69 (quoting National
Wildlife Fed’n v. Browner, 127 F.3d 1126, 1129 (D.C. Cir. 1997)).
Because the 2000 NPS Review did adopt a different interpretation
that contradicts the government’s position on appeal, deference to the
interpretation contained in the government’s brief is inappropriate.
Appendix A-34
concern for the manner in which aircraft noise affected visitors’
experiences. 154 F.3d at 465-66; see id. at 466 (noting that “in
the Park Service’s view, natural quiet is a resource because it is
relevant to visitor enjoyment”). And as we made clear in Part
II.A above, the same is true of the Park Service’s explanation of
the methodology underiying the Limitations Rule. Indeed, this
premise derives in part from the Overflights Act itself, which
directed the Secretary of the Interior to issue recommendations
~ “that shall provide for substantial restoration of the natural quiet
and experience of the park.” Overflights Act § 3(b)(1)
(emphasis added).
As the Trust points out, the use of an annual average does
not correspond to the experience of the Park’s actual visitors.
People do not visit the Park on “average” days, nor do they stay
long enough to benefit from averaging noise over an entire year.
For the typical visitor, who visits the Grand Canyon for just a
few days during the peak summer season, the fact that the Park
is quiet “on average” is cold comfort. Indeed, the FAA
acknowledges that, “[b]ecause many park visitors typically
spend limited time in particular sound environments during
specific park visits, the amount of aircraft noise present . . . can
have great implications for the visitor’s opportunity to
experience natural quiet in those particular times and spaces.”
Limitations Rule, 65 Fed. Reg. at 17,712. The problem with an
annual average is that it gives equal weight to summer and
winter days, notwithstanding that there are many more visitors
during the former than the latter. Thus, theoretically the use of
an annual average could permit the statutory standard to be met
despite an incessantly noisy summer, assuming that the other
seasons were relatively quiet. On the FAA’s view, it could then
declare that it had achieved substantial restoration of natural
quiet and cease any further efforts to restrict aircraft noise.
Appendix A-35
Nor are these consequences of using an annual average
merely theoretical. The FAA’s Final Supplemental
Environmental Assessment projects that the 2000 Final Rules
will restore natural quiet in 43.6% of the Park on the “average
annual day.” See FSEA at F-4. The same document, however,
reveals that on the average summer day, natural quiet will be
substantially restored in only 31.3% of the Park, and that on the
day with the most air tour overflights the natural quiet will be
substantially restored in only 19.0% of the Park. Id. This result
appears inconsistent with the rationale that the Park Service
offered for its 1994 definition of substantial restoration, and
that we found reasonable in Grand Canyon I: “Protecting 50%
of the Park for 75% of the day gives [backcountry visitors] at
least a reasonable chance of seeing the less-traveled areas in
peace.” 154 F.3d at 467; see also 1994 NPS Report at 184.
The FAA’s only response to the seeming unreasonableness
of its definition is that its standard guidelines for evaluating the
impact of aircraft noise employ an annual average, and that the
courts have generally deferred to those guidelines. Resp’t’s Br.
at 54-56 (citing, e.g., City of Bridgeton v. FAA, 212 F.3d 448,
459 (8th Cir. 2000); Morongo Band of Mission Indians v. FAA,
161 F.3d 569, 578-79 (9th Cir. 1998)). But those guidelines
were developed to evaluate aircraft noise at airports, see 14
C.F.R. pt. 150; id. § 150.9(b), and it is in that context that the
courts have deferred. See, e.g., Bridgeton, 212 F.3d at 459;
Morongo Band, 161 F.3d at 578-79. None of the cited cases
involved a statute that required-the FAA to achieve substantial
restoration of the natural quiet, or to employ a Park Service
definition that demands quiet during 75% of “the day.”
In sum, we conclude that the FAA’s use of an annual
average day for measuring “substantial restoration of the natural
quiet” appears inconsistent with both the Park Service’s
definition of the term and with the premise upon which that
definition was based. As noted in our discussion of ripeness
—-
Appendix A-36
above, this is not merely a technical dispute. It has a significant
impact both on the FAA’s estimate of the progress its current
and planned rules make, and on its determination of the end
point at which it will have fulfilled the statutory objective. We
must therefore remand this issue for further consideration.
We recognize that, on remand, the Park Service may
declare that it did in fact choose what seems to us to be the
FAA’s less reasonable reading of the Service’s definition of
“substantial restoration.” If it does, however, the Park Service
must understand that “the Overflights Act . . . did not relieve
the government . . . of its obligation not to promulgate a rule
that is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’”” Grand Canyon I, 154
F.3d at 469 (quoting 5 U.S.C. § 706(2)(A)). To survive review
under that standard, the Service will have to explain why its
definition is reasonable in light of the premise upon which it
was assertedly based. At this point, the government has offered
no explanation at all.
C
The Trust’s second challenge is to an aspect of the FAA’s
noise methodology. The Trust argues that, in projecting the
amount of noise experienced by different parts of the Park, the
FAA's noise model only considers noise emitted from air tour
flights. By failing to account for noise from other aircraft that
fly over the Grand Canyon—for example, from commercial
jets, general aviation, and military flights—the model arbitrarily
overstates how quiet the Park really is. The Trust asserts that
if non-tour aircraft noise were included in the calculation, the
percentage of the Park in which natural quiet would be
substantially restored—even on the FAA’s average annual
day—would be significantly less than the projected 43.6%.
a eee a a
eth abate
Appendix A-37
The FAA does not dispute that it excludes non-tour aircraft
from its model, and the Trust’s description is in accord with
that of the Final Supplemental Environmental Assessment.
FSEA app. G, at 40. Nor does the FAA dispute that, at least
theoretically, the exclusion of non-tour aircraft could cause it
to overestimate the periods when, and number of places where,
Park visitors substantially experience natural quiet. The FAA’s
only response to the Trust’s challenge is that excluding non-tour
aircraft is reasonable because they “contribute minimal noise
compared to commercial air tour aircraft. . . . [The FAA] did
not believe the minimal amount of noise they contribute would
affect the accuracy of its estimates.” Resp’t’s Br. at 59.
The agency cites no direct evidence that the noise from
non-tour aircraft is minimal, basing that conclusion solely on
the fact that general aviation flights account “for about 3
percent of all aircraft” in the Park. FSEA app. G, at 40. What
is at issue here, however, is not the number of aircraft that fly
over the Grand Canyon, but rather the percentage of time that
they are audible. Although we might ordinarily defer to the
FAA’s expert assurance that the number of non-tour aircraft is
too small to affect the accuracy of the latter calculation, we
cannot defer when the government’s own data suggests the
contrary. Here, the record evidence indicates that the exclusion
of non-tour aircraft from the calculation of the percentage of
time that aircraft are audible may well have a significant impact
on the results.
The 1994 NPS Report provides a chart, based on actual
observations, that breaks down the percentage of time that
different types of aircraft were audible at different points in the
Park. 1994 NPS Report at 187. For example, it shows that at
Lipan Point, total aircraft noise—including noise from air tours,
commercial jets, general aviation, and military flights—was
audible during 43% of the observation period. Air tours,
however, could only be heard 30% of the time. Hence, at that
Appendix A-38
location, excluding non-tour aircraft from the calculation would
overestimate by 13 percentage points the amount of time during
which natural quiet prevailed. Other locations reveal similarly
significant differentials between the amount of time that some
type of aircraft was audible and the amount of time that air
tours could be heard: a 14% differential at Bright Angel Point,
10% at Toroweap Overlook, and 12% at Phantom Ranch
Overlook. Jd. When asked at oral argument, the government
could offer no explanation for why these differentials were
immaterial in calculating the areas or periods in which the Park
substantially experiences natural quiet.
The FAA also seeks to defend the exclusion of non-tour
aircraft from its noise model on the ground that “FAA’s
regulations were not required to address every conceivable type
of aircraft.” Resp’t’s Br. at 60. That is true, and the FAA can
certainly choose to achieve the substantial restoration of natural
quiet by regulating air tours alone. But the FAA cannot dispute
that whether or not non-tour aircraft are regulated, natural quiet
does not exist when the sound they make is audible.'® Nor does
the Overflights Act provide any basis for ignoring noise caused
by such aircraft.'’ Hence, the fact that the FAA has chosen not
to regulate certain categories of aircraft does not justify ignoring
the sound those aircraft make when deciding how extensively
to regulate other categories. And in the absence of any
© See, e.g., 2000 NPS Review at 6 (defining “natural quiet” as “the
sound levels associated with a given acoustic environment, absent
any mechanical or: manmade noise sources” (emphasis added));
1994 NPS Report at 182 (defining “natural quiet” as “no aircraft
audible’’).
'7 See Overflights Act § 3(a) (declaring that “[n]oise associated with
aircraft overflights at the Grand Canyon National Park is causing a
significant adverse effect on the natural quiet and experience of the
park”).
ee
Appendix A-39
reasonable justification for excluding non-tour aircraft from its
noise model, we must conclude that this aspect of the FAA’s
methodology is arbitrary and capricious and requires
reconsideration by the agency.
IV
For the reasons discussed in Part II, the Air Tour
Association’s petition for review is denied. For the reasons
discussed in Part III, we grant the Grand Canyon Trust’s
petition and remand the case to the FAA for further proceedings
consistent with this opinion.
Appendix B-1
TITLE 16. CONSERVATION
CHAPTER 1. NATIONAL PARKS, MILITARY PARKS,
MONUMENTS, AND SEASHORES
NATIONAL PARK SERVICE
16 USCS § 1a-1 (2002)
§ la-1. National Park System: administration; declaration of
findings and purpose
Congress declares that the national park system, which
began with establishment of Yellowstone National Park in
1872, has since grown to include superlative natural, historic,
and recreation areas in every major region of the United States,
its territories and island possessions; that these areas, though
distinct in character, are united through their inter-related
purposes and resources into one national park system as
cumulative expressions of a single national heritage; that,
individually and collectively, these areas derive increased
national dignity and recognition of their superb environmental
quality through their inclusion jointly with each other in one
national park system preserved and managed for the benefit and
inspiration of all the people of the United States; and that it is
the purpose of this Act to include all such areas in the System
and to clarify the authorities applicable to the system. Congress
further reaffirms, declares, and directs that the promotion and
regulation of the various areas of the National Park System, as -
defined in section 2 of this Act [16 USCS § Ic], shall be
consistent with and founded in the purpose established by the
first section of the Act of August 25, 1916 [16 USCS § 1], to
the common benefit of all the people of the United States. The
authorization of activities shall be construed and the protection,
management, and administration of these areas shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation
Appendix B-2
of the values and purposes for which these various areas have
been established, except as may have been or shall be directly
and specifically provided by Congress.
HISTORY:
(Aug. 18, 1970, P.L. 91-383, § 1, 84 Stat. 825; March 27, 1978,
P.L. 95-250, § 101(b), 92 Stat. 166.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
References in text:
“This Act”, referred to in this section, is Act Aug. 18,
1970, P.L. 91-383, which appears generally as 16 USCS §§ la-
1 et seq. For full classification of such Act, consult USCS
Tables volumes.
“The Act of August 25, 1916,” referred to in this section,
is Act Aug. 25, 1916, ch 408, which appears generally as 16
USCS §§ 1 et seq. For full classification of such Act, consult
USCS Tables volumes.
Amendments:
1978. Act March 27, 1978, added: “Congress further
reaffirms, declares, and directs that the promotion and
regulation of the various areas of the National Park System, as
defined in section 2 of this Act, shall be consistent with and
founded in the purpose established by the first section of the
Act of August 25, 1916, to the common benefit of all the people
of the United States. The authorization of activities shall be
construed and the protection, management, and administration
of these areas shall be conducted in light of the high public
value and integrity of the National Park System and shall not be
exercised in derogation of the values and purposes for which
these various areas have been established, except as may have
been or shall be directly and specifically provided by
Congress.”
Appendix B-3
Other provisions:
Study to determine appropriate minimum altitude for
aircraft over National Park System units. Act Aug. 18, 1987,
P.L. 100-91, 101 Stat. 674, provides:
Section 1. Study of park overflights.
(a) Study by Park Service. The Secretary of the Interior
(hereinafter referred to as the ‘Secretary’), acting through the
Director of the National Park Service, shall conduct a study to
determine the proper minimum altitude which should be
maintained by aircraft when flying over units of the National
Park System. The Secretary of Transportation, acting through
the Administrator of the Federal Aviation Administration
(hereinafter referred to as the ‘Administrator’), shall provide
technical assistance to the Secretary in carrying out the study.
(b) General requirements of study. The study shall
identify any problems associated with overflight by aircraft of
units of the National Park System and shall provide information
regarding the types of overflight which may be impacting on
park unit resources. The study shall distinguish between the
impacts caused by sightseeing aircraft, military aircraft,
commercial aviation, general aviation, and other forms of
aircraft which affect such units. The study shall identify those
park system units, and portions thereof, in which the most
serious adverse impacts from aircraft overflights exist.
(c) Specific requirements. The study under this section
shall include research at the following units of the National
Park System: Cumberland Island National Seashore, Yosemite
National Park, Hawaii Volcanoes National Park [Hawai’i
Volcanoes National Park], Haleakala National Park [Haleakal
a National Park], Glacier National Park, and Mount Rushmore
National Memorial, and at no less than four additional units of
Appendix B-4
the National Park System, excluding all National Park System
units in the State of Alaska. The research at each such unit shall
provide information and an evaluation regarding each of the
following:
(1) the impacts of aircraft noise on the safety of the park
system users, including hikers, rock-climbers, and boaters;
(2) the impairment of visitor enjoyment associated with
flights over such units of the National Park System;
(3) other injurious effects of overflights on the natural,
historical, and cultural resources for which such units were
established; and
(4) the values associated with aircraft flights over such
units of the National Park System in terms of visitor enjoyment,
the protection of persons or property, search and rescue
operations and firefighting.
Such research shall evaluate the impact of overflights by
both fixed-wing aircraft and helicopters. The research shall
include an evaluation of the differences in noise levels within
such units of the National Park System which are associated
with flight by commonly used aircraft at different altitudes.
The research shall apply only to overflights and shall not apply
to landing fields within, or adjacent to, such units.
(d) Report to Congress. The Secretary shall submit a
report to the Congress within 3 years after the enactment of this
Act containing the results of the study carried out under this
section. Such report shall also contain recommendations for
legislative and regulatory action which could be taken regarding
the information gathered pursuant to paragraphs (1) through (4)
of subsection (c). Before submission to the Congress, the
Secretary shall provide a draft of the report and
Appendix B-5
recommendations to the Administrator for review. The
Administrator shall review such report and recommendations
and notify the Secretary of any adverse effects which the
implementation of such recommendations would have on the
safety of aircraft operations. The Administrator shall consult
with the Secretary to resolve issues relating to such adverse
effects. The final report shall include a finding by the
Administrator that implementation of the recommendations of
the Secretary will not have adverse effects on the safety of
aircraft operations, or if the Administrator is unable to make
such finding, a statement by the Administrator of the reasons he
believes the Secretary’s recommendations will have an adverse
effect on the safety of aircraft operations.
(e) FAA review of rules. The Administrator shall review
current rules and regulations pertaining to flights of aircraft
over units of the National Park System at which research is
conducted under subsection (c) and over any other such units at
which such a review is determined necessary by the
Administrator or is requested by the Secretary. In the review
under this subsection, the Administrator shall determine
whether changes are needed in such rules and regulations on the
basis of aviation safety. Not later than 180 days after the
identification of the units of the National Park System for which
research is to be conducted under subsection (c), the
Administrator shall submit a report to Congress containing the
results of the review along with recommendations for
legislative and regulatory action which are needed to implement
any such changes. °
(f) Authorization. There are authorized to be appropriated
such sums as may be necessary to carry out the studies and
review under this section.
Sec. 2. Flights over Yosemite and Haleakala during study
and review.
Appendix B-6
(a) Yosemite National Park. During the study and review
periods provided in subsection (c), it shall be unlawful for any
fixed wing aircraft or helicopter flying under visual flight rules
to fly at an altitude of less than 2,000 feet over the surface of
Yosemite National Park. For purposes of this subsection, the
term ‘surface’ refers to the highest terrain within the park which
is within 2,000 feet laterally of the route of flight and with
respect to Yosemite Valley such term refers to the upper-most
rim of the valley.
(b) Haleakala National Park [Haleakal a National Park].
During the study and review periods provided in subsection (c),
it shall be unlawful for any fixed wing aircraft or helicopter
flying under visual flight rules to fly at an altitude below 9,500
feet above mean sea level over the surface of any of the
following areas in Haleakala National Park [Haleakal a
National Park]: Haleakala Crater, Crater Cabins, the Scientific
Research Reserve, Halemauu Trail, Kaupo Gap Trail, or any
designated tourist viewpoint.
(c) Study and review periods. For purposes of subsections
(a) and (b), the study period shall be the period of the time after
the date of enactment of this Act and prior to the submission of
the report under section 1 The review period shall comprise a
2-year period for Congressional review after the submission of
the report to Congress.
(d) Exceptions. The prohibitions contained in subsections
(a) and (b) shall not apply to any of the following:
(1) emergency situations involving the protection of
persons or property, including aircraft;
(2) search and rescue operations;
Appendix B-7
(3) flights for purposes of firefighting or for required
administrative purposes; and
(4) compliance with instructions of an air traffic controller.
(e) Enforcement. For purposes of enforcement, the
prohibitions contained in subsections (a) and (b) shall be treated
as requirements established pursuant to section 307 of the
Federal Aviation Act of 1958 [former 49 USCS Appx § 1348].
To provide information to pilots regarding the restrictions
established under this Act, the Administrator shall provide
public notice of such restrictions in appropriate Federal
Aviation Administration publications as soon as practicable
after the enactment of this Act.
Sec. 3. Grand Canyon National Park.
(a) Noise associated with aircraft overflights at the Grand
Canyon National Park is causing a significant adverse effect on
the natural quiet and experience of the park and current aircraft
operations at the Grand Canyon National Park have raised
serious concerns regarding public safety, including concerns
regarding the safety of park users.
(b) Recommendations.
(1) Submission. Within 30 days after the enactment of
this Act, the Secretary shall submit to the Administrator
recommendations regarding actions necessary for the protection
of resources in the Grand Canyon from adverse impacts
associated with aircraft overflights. The recommendations shall
provide for substantial restoration of the natural quiet and
experience of the park and protection of public health and
safety from adverse effects associated with aircraft overflight.
Except as provided in subsection (c), the recommendations
shall contain provisions prohibiting the flight of aircraft below
Silat alae pe tat ee Nt sie a2, ROR Eee Pe TR TO TO eee
Appendix B-8
the rim of the Canyon, and shall designate flight free zones.
Such zones shall be flight free except for purposes of
administration and for emergency operations, including those
required for the transportation of persons and supplies to and
from Supai Village and the lands of the Havasupai Indian Tribe
of Arizona. The Administrator, after consultation with the
Secretary, shall define the rim of the Canyon in a manner
consistent with the purposes of this paragraph.
(2) Implementation. Not later than 90 days after receipt of
the recommendations under paragraph (1) and after notice and
opportunity for hearing, the Administrator shall prepare and
issue a final plan for the management of air traffic in the air
space above the Grand Canyon. The plan shall, by appropriate
regulation, implement the recommendations of the Secretary
without change unless the Administrator determines that
implementing the recommendations would adversely affect
aviation safety. If the Administrator determines that
implementing the recommendations would adversely affect
aviation safety, he shall, not later than 60 days after making
such determination, in consultation with the Secretary and after
notice and opportunity for hearing, review the
recommendations consistent with the requirements of paragraph
(1) to eliminate the adverse effects on aviation safety and issue
regulations implementing the revised recommendations in the
plan. In addition to the Administrator's authority to implement
such regulations under the Federal Aviation Act of 1958
[former 49 USCS Appx §§ 1301 et seq. generally; for full
classification consult USCS Tables volumes], the Secretary
may enforce the appropriate requirements of the plan under
such rules and regulations applicable to the units of the National
Park System as he deems appropriate.
(3) Report. Within 2 years after the effective date of the
plan required by subsection (b)(2), the Secretary shall submit to
the Congress a report discussing—
Appendix B-9
(A) whether the plan has succeedéd in substantially
restoring the natural quiet in the park; and
(B) such other matters, including possible revisions in the
plan, as may be of interest.
The report shall include comments by the Administrator
regarding the effect of the plan's implementation on aircraft
safety.
(c) Helicopter flights of river runners. Subsection (b) shall
not prohibit the flight of helicopters—
(1) which fly a direct route between a point on the north
rim outside of the Grand Canyon National Park and locations
on the Hualapai Indian Reservation (as designated by the
Tribe); and
(2) whose sole purpose is transporting individuals to or
from boat trips on the Colorado River and any guide of such a
trip.
Sec. 4. Boundary Waters Canoe Area Wilderness.
The Administrator shall conduct surveillance of aircraft
flights over the Boundary Waters Canoe Area Wilderness as
authorized by the Act of October 21, 1978 (92 Stat. 1649-1659)
[generally unclassified, but see 16 USCS §§ 1132 note and
1133(d)(5), (8)] for a period of not less than 180 days beginning
within 60 days of enactment of this Act. In addition to any
actions the Administrator may take as a result of such
surveillance, he shall provide a report to the Committee on
Interior and Insular Affairs and the Committee on Public Works
and Transportation of the United States House of
Representatives and to the Committee on Energy and Natural
Resources and the Committee on Commerce, Science, and
Appendix B-10
Transportation of the United States Senate. Such report is to be
submitted within 30 days of completion of the surveillance
activities. Such report shall include but not necessarily be
limited to information on the type and frequency of aircraft
using the airspace over the Boundary Waters Canoe Area
Wilderness.
Sec. 5. Assessment of National Forest System wilderness
overflights.
(a) Assessment by Forest Service. The Chief of the Forest
Service (hereinafter referred to as the ‘Chief?) shall conduct an
assessment to determine what, if any, adverse impacts to
wilderness resources are associated with overflights of National
Forest System wilderness areas. The Administrator of the
Federal Aviation Administration shall provide technical
assistance to the Chief in carrying out the assessment. Such
assessment shall apply only to overflight of wilderness areas
and shall not apply to aircraft flights or landings adjacent to
National Forest System wilderness units. The assessment shall
not apply to any National Forest System wilderness units in the
State of Alaska.
(b) Report to Congress. The Chief shall submit a report to
Congress within 2 years after enactment of this Act containing
the results of the assessments carried out under this section.
(c) Authorization. Effective October 1, 1987, there are
authorized to be appropriated such sums as may be necessary to
carry out the assessment under this section.
Sec. 6. Consultation with Federal agencies.
“In conducting the study and the assessment required by
this Act, the Secretary of the Interior and the Chief of the Forest
Service shall consult with other Federal agencies that are
Appendix B-11
engaged in an analysis of the impacts of aircraft overflights over
federally-owned land.”.
Removal of feral burros and horses from Death Valley
National Monument. Act Oct. 5, 1992, P.L. 102-381, Title I,
106 Stat. 1384, provides: “In fiscal year 1993 and thereafter,
the National Park Service may use helicopters and motorized
equipment at Death Valley National Monument for removal of
feral burros and horses.”’.
Air traffic over Grand Canyon. Act Oct. 31, 1992, P.L.
102-581, Title I, § 134, 106 Stat. 4887, provides:
(a) Study. The Administrator of the Federal Aviation
Administration, in consultation with the Director of the
National Park Service, the State of Arizona, the State of
Nevada, the Clark County Department of Aviation, affected
Indian tribes, and the general public, shall conduct a study on
increased air traffic over Grand Canyon National Park.
(b) Report. The Administrator of the Federal Aviation
Administration shall submit to Congress a report on the results
of the study conducted under subsection (a). The report shall
include the following:
(1) A report on the increase in air traffic over Grand
Canyon National Park since 1987.
(2) A forecast of the increase in air traffic over Grand
Canyon National Park through 2010.
(3) A report on the carrying capacity of the airspace over
Grand Canyon National Park to ensure aviation safety and to
meet the requirements established by section 3 of the Act of
August 18, 1987 (Public Law 100-91; 101 Stat. 676) [note to
_ Appendix B-12
this section], including the substantial restoration of natural
quiet at the Park.
(4) A plan of action to manage increased air traffic over
Grand Canyon National Park to ensure aviation safety and to
meet the requirements established by such section 3 of the Act
of August 18, 1987 [note to this section], including any
measures to encourage or require the use of quiet aircraft
technology by commercial air tour operators.
* * * *
Appendix C-1
5 USCS § 601
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 601 (2002)
§ 601. Definitions
For purposes of this chapter [5 USCS §§ 601 et seq. ]—
(1) the term “agency” means an agency as defined in
section 551(1) of this title;
(2) the term “rule” means any rule for which the agency
publishes a general notice of proposed rulemaking pursuant to
section 553(b) of this title, or any other law, including any rule
of general applicability governing Federal grants to State and
local governments for which the agency provides an
opportunity for notice and public comment, except that the term
“rule” does not include a rule of particular applicability relating
to rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services,
or allowances therefor or to valuations, costs or accounting, or
practices relating to such rates, wages, structures, prices,
appliances, services, or allowances;
(3) the term “small business” has the same meaning as the
term “small business concern” under section 3 of the Small
Appendix C-2
Business Act [15 USCS § 632], unless an agency, after
consultation with the Office of Advocacy of the Small Business
Administration and after opportunity for public comment,
establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register;
(4) the term “small organization” means any not-for-profit
enterprise which is independently owned and operated and is
not dominant in its field, unless an agency establishes, after
opportunity for public comment, one or more definitions of
such term which are appropriate to the activities of the agency
and publishes such definition(s) in the Federal Register;
(5) the term “small governmental jurisdiction” means
governments of cities, counties, towns, townships, villages,
school districts, or special districts, with a population of less
than fifty thousand, unless an agency establishes, after
opportunity for public comment, one or more definitions of
such term which are appropriate to the activities of the agency
and which are based on such factors as location in rural or
sparsely populated areas or limited revenues due to the
population of such jurisdiction, and publishes such definition(s)
in the Federal Register;
(6) the term “small entity” shall have the same meaning as
the terms “small business”, “small organization” and “small
governmental jurisdiction” defined in paragraphs (3), (4) and
(5) of this section; [and]
(7) the term “collection of information”—
(A) means the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public, of facts
or opinions by or for an agency, regardless of form or format,
calling for either—
Appendix C-3
(i) answers to identical questions posed to, or identical
reporting or recordkeeping requirements imposed on, 10 or
more persons, other than agencies, instrumentalities, or
employees of the United States; or
(ii) answers to questions posed to agencies,
instrumentalities, or employees of the United States which are
to be used for general statistical purposes; and
(B) shall not include a collection of information described
under section 3518(c){1) of title 44, United States Code. [; and]
(8) Recordkeeping requirement. The term “recordkeeping
requirement” means a requirement imposed by an agency on
persons to maintain specified records.
* * *
Appendix C-4
5 USCS § 602
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 602 (2002)
§ 602. Regulatory agenda
(a) During the months of October and April of each year,
each agency shall publish in the Federal Register a regulatory
flexibility agenda which shall contain—
(1) a brief description of the subject area of any rule
which the agency expects to propose ur promulgate which is
likely to have a significant economic impact on a substantial
number of small entities;
(2) a summary of the nature of any such rule under
consideration for each subject area listed in the agenda pursuant
to paragraph (1), the objectives and legal basis for the issuance
of the rule, and an approximate schedule for completing action
on any rule for which the agency has issued a general notice of
proposed rulemaking, and
(3) the name and telephone number of an agency
official knowledgeable concerning the items listed in paragraph
(1).
Appendix C-5
(b) Each regulatory flexibility agenda shall be transmitted
to the Chief Counsel for Advocacy of the Small Business
Administration for comment, if any.
(c) Each agency shall endeavor to provide notice of each
regulatory flexibility agenda to small entities or their
representatives through direct notification or publication of the
agenda in publications likely to be obtained by such small
entities and shall invite comments upon each subject area on the
agenda.
(d) Nothing in this section precludes an agency from
considering or acting on any matter not included in a regulatory
flexibility agenda, or requires an agency to consider or act on
any matter listed in such agenda.
* * *
Appendix C-6
5 USCS § 603
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 603 (2002)
§ 603. Initial regulatory flexibility analysis
(a) Whenever an agency is required by section 553 of this
title, or any other law, to publish general notice of proposed
rulemaking for any proposed rule, or publishes a notice of
proposed rulemaking for an interpretative rule involving the
internal revenue laws of the United States, the agency shall
prepare and make available for public comment an initial
regulatory flexibility analysis. Such analysis shall describe the
impact of the proposed rule on small entities. The initial
regulatory flexibility analysis or 2 summary shall be published
in the Federal Register at the time of the publication of general
notice of proposed rulemaking for the rule. The agency shall
transmit a copy of the initial regulatory flexibility analysis to
the Chief Counsel for Advocacy of the Small Business
Administration. In the case of an interpretative rule involving
the internal revenue laws of the United States, this chapter [5
USCS §§ 601 et seq.] applies to interpretative rules published
in the Federal Register for codification in the Code of Federal
Regulations, but only to the extent that such interpretative rules
impose on small entities a collection of information
requirement.
Appendix C-7
(b) Each initial regulatory flexibility analysis required
under this section shall contain—
(1) a description of the reasons why action by the
agency is being considered;
(2) a succinct statement of the objectives of, and legal
basis for, the proposed rule;
(3) a description of and, where feasible, an estimate of
the number of small entities to which the proposed rule will
apply;
(4) a description of the projected reporting,
recordkeeping, and other compliance requirements of the
proposed rule, including an estimate of the classes of small
entities which will be subject to the requirement and the type of
professional skills necessary for preparation of the report or
record;
(5) an identification, to the extent practicable, of all
relevant Federal rules which may duplicate, overlap or conflict
with the proposed rule.
(c) Each initial regulatory flexibility analysis shall also
contain a description of any significant alternatives to the
proposed rule which accomplish the stated objectives of
applicable statutes and which minimize any significant
economic impact of the proposed rule on small entities.
Consistent with the stated objectives of applicable statutes, the
analysis shall discuss significant alternatives such as—
(1) the establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities;
Appendix C-8
(2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such
small entities;
(3) the use of performance rather than design standards;
and
(4) an exemption from coverage of the rule, or any part
thereof, for such small entities.
* * *
Appendix C-9
5 USCS § 604
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 604 (2002)
§ 604. Final regulatory flexibility analysis
(a) When an agency promulgates a final rule under section
553 of this title, after being required by that section or any other
law to publish a general notice of proposed rulemaking, or
promulgates a final interpretative rule involving the internal
revenue laws of the United States as described in section
603(a), the agency shall prepare a final regulatory flexibility
analysis. Each final regulatory flexibility analysis shall
contain—
(1) a succinct statement of the need for, and objectives
of, the rule;
(2) a summary of the significant issues raised by the
public comments in response to the initial regulatory flexibility
analysis, a summary of the assessment of the agency of such
issues, and a statement of any changes made in the proposed
rule as a result of such comments;
Appendix C-10
(3) a description of and an estimate of the number of
small entities to which the rule will apply or an explanation of
why no such estimate is available;
(4) a description of the projected reporting,
recordkeeping and other compliance requirements of the rule,
including an estimate of the classes of small entities which will
be subject to the requirement and the type of professional skills
necessary for preparation of the report or record; and
(5) a description of the steps the agency has taken to
minimize the significant economic impact on small entities
consistent with the stated objectives of applicable statutes,
including a statement of the factual, policy, and legal reasons
for selecting the alternative adopted in the final rule and why
each one of the other significant alternatives to the rule
considered by the agency which affect the impact on small
entities was rejected.
(b) The agency shall make copies of the final regulatory
flexibility analysis available to members of the public and shall
publish in the Federal Register such analysis or a summary
thereof.
Appendix C-11
5 USCS § 605
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 605 (2002)
§ 605. Avoidance of duplicative or unnecessary analyses
(a) Any Federal agency may perform the analyses required
by sections 602, 603, and 604 of this title in conjunction with
or as a part of any other agenda or analysis required by any
other law if such other analysis satisfies the provisions of such
sections.
(b) Sections 603 and 604 of this title shall not apply to any
proposed or final rule if the head of the agency certifies that the
tule will not, if promulgated, have a significant economic
impact on a substantial number of small entities. If the head of
the agency makes a certification under the preceding sentence,
the agency shall publish such certification in the Federal
Register at the time of publication of general notice of proposed
rulemaking for the rule or at the time of publication of the final
rule, along with a statement providing the factual basis for such
certification. The agency shall provide such certification and
statement to the Chief Counsel for Advocacy of the Small
Business Administration.
ee
Appendix C-12
(c) In order to avoid duplicative action, an agency may
consider a series of closely related rules as one rule for the
purposes of sections 602, 603, 604 and 610 of this title.
* * *
Appendix C-13
5 USCS § 606
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 606 (2002)
§ 606. Effect on other law
The requirements of sections 603 and 604 of this title do not
alter in any manner standards otherwise applicable by law to
agency action.
Appendix C-14
5 USCS § 607
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 607 (2002)
§ 607. Preparation of analyses
In complying with the provisions of sections 603 and 604
of this title, an agency may provide either a quantifiable or
numerical description of the effects of a proposed rule or
alternatives to the proposed rule, or more general descriptive
statements if quantification is not practicable or reliable.
* * *
Appendix C-15
5 USCS § 608
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* *&€ *
5 USCS § 608 (2002)
§ 608. Procedure for waiver or delay of completion
(a) An agency head may waive or delay the completion of
some or all of the requirements of section 603 of this title by
publishing in the Federal Register, not later than the date of
publication of the final rule, a written finding, with reasons
therefor, that the final rule is being promulgated in response to
an emergency that makes compliance or timely compliance with
the provisions of section 603 of this title impracticable.
(b) Except as provided in section 605(b), an agency head
may not waive the requirements of section 604 of this title. An
agency head may delay the completion of the requirements of
section 604 of this title for a period of not more than one
hundred and eighty days after the date of publication in the
Federal Register of a final rule by publishing in the Federal
Register, not later than such date of publication, a written
finding, with reasons therefor, that the final rule is being
promulgated in response to an emergency that makes timely
compliance with the provisions of section 604 of this title
impracticable. If the agency has not prepared a final regulatory
analysis pursuant to section 604 of this title within one hundred
Da smear ih pin ries
Appendix C-16
and eighty days from the date of publication of the final rule,
such rule shall lapse and have no effect. Such rule shall not be
repromulgated until a final regulatory flexibility analysis has
been completed by the agency.
* * *
Appendix C-17
5 USCS § 609
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 609 (2002)
§ 609. Procedures for gathering comments
(a) When any rule is promulgated which will have a
significant economic impact on a substantial number of small
entities, the head of the agency promulgating the rule or the
official of the agency with statutory responsibility for the
promulgation of the rule shall assure that small entities have
been given an opportunity to participate in the rulemaking for
the rule through the reasonable use of techniques such as—
(1) the inclusion in an advanced notice of proposed
rulemaking, if issued, of a statement that the proposed rule may
have a significant economic effect on a substantial number of
small entities;
(2) the publication of general notice of proposed
rulemaking in publications likely to be obtained by small
entities;
(3) the direct notification of interested small entities;
Appendix C-18
(4) the conduct of open conferences or public hearings
concerning the rule of small entities including soliciting and
receiving comments over computer networks; and
(5) the adoption or modification of agency procedural
rules to reduce the cost or complexity of participation in the
rulemaking by small entities.
(b) Prior to publication of an initial regulatory flexibility
analysis which a covered agency is required to conduct by this
chapter [5 USCS §§ 601 et seq.]—
(1) acovered agency shall notify the Chief Counsel for
Advocacy of the Small Business Administration and provide
the Chief Counsel with information on the potential impacts of
the proposed rule on small entities and the type of small entities
that might be affected;
(2) not later than 15 days after the date of receipt of the
materials described in paragraph (1), the Chief Counsel shall
identify individuals representative of affected small entities for
the purpose of obtaining advice and recommendations from
those individuals about the potential impacts of the proposed
rule;
(3) the agency shall convene a review panel for such
rule consisting wholly of full time Federal employees of the
office within the agency responsible for carrying out the
proposed rule, the Office of Information and Regulatory Affairs
within the Office of Management and Budget, and the Chief
Counsel;
(4) the panel shall review any material the agency has
prepared in connection with this chapter, including any draft
proposed rule, collect advice and recommendations of each
individual small entity representative identified by the agency
Appendix C-19
after consultation with the Chief Counsel, on issues related to
subsections 603(b), paragraphs (3), (4) and (5) and 603(c);
(5) not later than 60 days after the date a covered
agency convenes a review panel pursuant to paragraph (3), the
review panel shall report on the comments of the small entity
representatives and its findings as to issues related to
subsections 603(b), paragraphs (3), (4) and (5) and 603(c),
provided that such report shall be made public as part of the
rulemaking record; and
(6) where appropriate, the agency shall modify the
proposed rule, the initial regulatory flexibility analysis or the
decision on whether an initial regulatory flexibility analysis is
required.
(c) An agency may in its discretion apply subsection (b) to
rules that the agency intends to certify under subsection 605(b),
but the agency believes may have a greater than de minimis
impact on a substantial number of small entities.
(d) For purposes of this section, the term “covered agency”
means the Environmental Protection Agency and the
Occupational Safety and Health Administration of the
Department of Labor. —
(e) The Chief Counsel for Advocacy, in consultation with
the individuals identified in subsection (b)(2), and with the
Administrator of the Office of Information and Regulatory
Affairs within the Office of Management and Budget, may
waive the requirements of subsections (b)(3), (0)(4), and (b)(5)
by including in the rulemaking record a written finding, with
reasons therefor, that those requirements would not advance the
effective participation of small entities in the rulemaking
process. For purposes of this subsection, the factors to be
considered in making such a finding are as follows: ~
aX han ear, 5 Sent ae 8
Appendix C-20
(1) In developing a proposed rule, the extent to which
the covered agency consulted with individuals representative of
affected small entities with respect to the potential impacts of
the rule and took such concerns into consideration.
(2) Special circumstances requiring prompt issuance of
the rule.
(3) Whether the requirements of subsection (b) would
provide the individuals identified in subsection (b)(2) with a
competitive advantage relative to other small entities.
* * *
Appendix C-21
5 USCS § 610
* * *
TITLE 5. GOVERNMENT ORGANIZATION .
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS |
* * *
5 USCS § 610 (2002)
§ 610. Periodic review of rules
(a) Within one hundred and eighty days after the effective
date of this chapter, each agency shall publish in the Federal
Register a plan for the periodic review of the rules issued by the
agency which have or will have a significant economic impact
upon a substantial number of small entities. Such plan may be
amended by the agency at any time by publishing the revision
in the Federal Register. The purpose of the review shall be to
determine whether such rules should be continued without
change, or should be amended or rescinded, consistent with the
stated objectives of applicable statutes, to minimize any
significant economic impact of the rules upon a substantial
number of such small entities. The plan shall provide for the
review of all such agency rules existing on the effective date of
this chapter, within ten years of that date and for the review of
such rules adopted after the effective date of this chapter within
ten years of the publication of such rules as the final rule. If the
head of the agency determines that completion of the review of
existing rules is not feasible by the established date, he shall so
certify in a statement published in the Federal Register and may
Appendix C-22
extend the completion date by one year at a time for a total of
not more than five years.
(b) In reviewing rules to minimize any significant
economic impact of the rule on a substantial number of small
entities in a manner consistent with the stated objectives of
applicable statutes, the agency shall consider the following
factors—
(1) the continued need for the rule;
(2) the nature of complaints or comments received
concerning the rule from the public;
(3) the complexity of the rule;
(4) the extent to which the rule overlaps, duplicates or
conflicts with other Federal rules, and, to the extent feasible,
with State and local governmental rules; and
(5) the length of time since the rule has been evaluated
or the degree to which technology, economic conditions, or
other factors have changed in the area affected by the rule.
(c) Eack year, each agency shall publish in the Federal
Register a list of the rules which have a significant economic
impact on a substantial number of small entities, which are to
be reviewed pursuant to this section during the succeeding
twelve months. The list shall include a brief description of each
rule and the need for and legal basis of such rule and shall
invite public comment upon the rule.
* * *
Appendix C-23
5 USCS § 611
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 611 (2002)
§ 611. Judicial review
(a) (1) For any rule subject to this chapter [5 USCS §§ 601
et seq.], a small entity that is adversely affected or aggrieved by
final agency action is entitled to judicial review of agency
compliance with the requirements of sections 601, 604, 605(b),
608(b), and 610 in accordance with chapter 7 [5 USCS §§ 701
et seq.]. Agency compliance with sections 607 and 609(a) shall
be judicially reviewable in connection with judicial review of
section 604.
(2) Each court having jurisdiction to review such rule for
compliance with section 553, or under any other provision of
law, shall have jurisdiction to review any claims of
noncompliance with sections 601, 604, 605(b), 608(b), and 610
in accordance with chapter 7 [S USCS §§ 701 et seq.]. Agency
compliance with sections 607 and 609(a) shall be judicially
reviewable in connection with judicial review of section 604.
(3) (A) A small entity may seek such review during the
period beginning on the date of final agency action and ending
one year later, except that where a provision of law requires that
an action challenging a final agency action be commenced
Appendix C-24
before the expiration of one year, such lesser period shall apply
to an action for judicial review under this section.
(B) In the case where an agency delays the issuance of
a final regulatory flexibility analysis pursuant to section 608(b)
of this chapter, an action for judicial review under this section
shall be filed not later than—
(i) one year after the date the analysis is made
available to the public, or
(ii) where a provision of law requires that an
action challenging a final agency regulation be commenced
before the expiration of the 1-year period, the number of days
specified in such provision of law that is after the date the
analysis is made available to the public.
(4) In granting any relief in an action under this section, the
court shall order the agency to take corrective action consistent
with this chapter and chapter 7 [5 USCS §§ 601 et seq., 701 et
seq.], including, but not limited to—
(A) remanding the rule to the agency, and
(B) deferring the enforceme~t of the rule against small
entities unless the court finds that continued enforcement of the
rule is in the public interest.
(5) Nothing in this subsection shall be construed to limit
the authority of any court to stay the effective date of any rule
or provision thereof under any other provision of law or to grant
any other relief in addition to the requirements of this section.
(b) In an action for the judicial review of a rule, the
regulatory flexibility analysis for such rule, including an
analysis prepared or corrected pursuant to paragraph (a)(4),
Appendix C-25
shall constitute part of the entire record of agency action in
connection with such review.
(c) Compliance or noncompliance by an agency with
the provisions of this chapter [5 USCS §§ 601 et seq.] shall be
subject to judicial review only in accordance with this section.
(d) Nothing in this section bars judicial review of any
other impact statement or similar analysis required by any other
law if judicial review of such statement or analysis is otherwise
permitted by law.
Appendix C-26
5 USCS § 612
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 6. THE ANALYSIS OF REGULATORY
FUNCTIONS
* * *
5 USCS § 612 (2002)
§ 612. Reports and intervention rights
(a) The Chief Counsel for Advocacy of the Small Business
Administration shall monitor agency compliance with this
chapter [5 USCS §§ 601 et seq.] and shall report at least
annually thereon to the President and to the Committees on the
Judiciary and Small Business of the Senate and House of
Representatives.
(b) The Chief Counsel for Advocacy of the Small Business
Administration is authorized to appear as amicus curiae in any
action brought in a court of the United States to review a rule.
In any such action, the Chief Counsel is authorized to present
his or her views with respect to compliance with this chapter [5
USCS §§ 601 et seq.], the adequacy of the rulemaking record
with respect to small entities and the effect of the rule on small
entities.
(c) A court of the United States shall grant the application
of the Chief Counsel for Advocacy of the Small Business
Administration to appear in any such action for the purposes
described in subsection (b).
* * *
Appendix D-1
5 USCS § 701
* * *
TITLE 5. GOVERNMENT ORGANIZATION
AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 7. JUDICIAL REVIEW
* * *
5 USCS § 701 (2002)
_ § 701. Application; definitions
(a) This chapter [5 USCS §§ 701 et seq.] applies, according
to the provisions there
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