Opposition Brief — Grand Canyon Trust v. Federal Aviation Administration

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Jn the Supreme Court of the Anited States

GRAND CANYON TRUST, ET AL., PETITIONERS

Vv.

FEDERAL AVIATION ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

FEDERAL AVIATION ADMINISTRATION

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

LOIS J. SCHIFFER

Assistant Attorney General

RONALD M. SPRITZER

Attorney

Department of Justice

Washington, D.C. 20580-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Federal Aviation Administration

unlawfully withheld or unreasonably delayed action

required by the Act of August 18, 1987, Pub. L. No. 100-

91, § 3, 101 Stat. 676 (codified at 16 U.S.C. la-1 note),

when it promulgated a regulation that does not fully

achieve until 2008 the statutory objective of

substantially restoring the natural quiet in the Grand

Canyon National Park.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Action on Smoking & Health v. Department of

Labor, 100 F.3d 991 (D.C. Cir. 1996) .......r.s.cssssccsesscssserees 15

Community Nutrition Inst. v. Young, 773 F.2d

1356 (D.C. Cir. 1985), cert. denied, 475 U.S. 1123

CRITE itil shsdinseikeasisibhineeabsblecatensbciecllinientsinrstikueptinnionmentovenmensneenees 13

Forest Guardians v. Babbitt, 164 F.3d 1261 (1998),

amended on denial of reh’g, No. 97-2370, 1999

WL 286274 (10th Cir. Apr. 22, 1999) ........ccccsrcsccsessssensoresees 11, 12

MCI Telecomms. Corp. v. FCC, 627 F.2d

I I i esanseanebsanionans 13

Oil, Chem. & Atomic Workers Int’l Union v.

Zegeer, 768 F.2d 1480 (D.C. Cir. 1985) .......ccscceseserersserereees 15

Telecommunications Research & Action Ctr. v.

BOC, TED FB TO DAG. Car, GGG) cccesccccesescesccvenscecssesecvecs 13, 15

United Steelworkers of Am., In re, 783 F.2d 1117

I cs nil hpealabbadaovenevanimennensets 15

Washington Legal Found. v. Alexander,

Se SE EE CEI A: 4.0, SUUPIED cocnteewiinncistsvsansneensennosoommnienvieines 13

Statutes and rule:

Act of Aug. 18, 1987, Pub. L. No. 100-91, 101 Stat.

674 (16 U.S.C. la-1 note):

§ 3, 101 Stat. 676 (16 U.S.C. la-1 note) .........ccssseeseeeeees 2,9

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i a aeidndaganebtonnenense 3

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(III)

Statutes and rule—Continued: Page

Administrative Procedure Act, 5 U.S.C. 551 et seq.:

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Fees, FULD shioncarsceeusesinnipsiansisleieitieionbanabindebiasia 8, 11, 12, 13, 14

Endangered Species Act of 1973, 16 U.S.C. 1531

CI seis sche sis vebinndaictescsncescasiviaceshadaphahuinilinaiaebaeitaigiiisuaatolsieies 12

National Environmental Policy Act of 1969,

Ge SEs Ge OE OG, actinic ciccnaisaraerccarndacthastctescinpiaigies 6

National Historic Preservation Act of 1966, 16 U.S.C.

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Pe CE TiS) | cnirersnsesisinnancciztiacaiaisipatiamminmagmonepiatien 16

Miscellaneous:

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SD FG. BORG, FFG CEM E) wiscrsnessosseinninpuiticisianainheuuseiinapsieiiia 4

61 Fed. Reg. (1996):

0D, CEPA ane RE: . creveiteninscasnsncebiachinniretaivainnveaneinmnmeninaiaviiaios

62 Fed. Reg. (1997):

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Jn the Supreme Court of the Gnited States

No. 98-1417

GRAND CANYON TRUST, ET AL., PETITIONERS

Vv.

FEDERAL AVIATION ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE

FEDERAL AVIATION ADMINISTRATION

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-40a)

is reported at 154 F.3d 455.

JURISDICTION

The judgment of the court of appeals was entered on

September 4, 1998. A petition for rehearing was denied

on November 4, 1998 (Pet. App. 41a). On January 22,

1999, Chief Justice Rehnquist extended the time for

filing a petition for a writ of certiorari to and including

March 4, 1999, and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

This case involves a Federal Aviation Administration

(FAA) regulation implementing legislation to study and

limit air traffic over the Grand Canyon National Park

(Park). Act of Aug. 18, 1987 (Overflights Act or Act),

Pub. L. No. 100-91, § 3, 101 Stat. 676 (codified at 16

U.S.C. la-1 note). 61 Fed. Reg. 69,302 (1996) (Final

Rule or Rule); see also 62 Fed. Reg. 8862, 66,248 (1997)

(delaying effective date for portions of the Rule). The

Final Rule, which regulates air-tour operations over the

Park in order to substantially restore natural quiet in

the Park, includes a curfew, the designation of flight-

free zones, a limit on the number of aircraft, and report-

ing requirements. The Rule is “part of an overall

strategy to further reduce the impact of aircraft noise

on the park environment and to assist the National

Park Service [NPS] in achieving its statutory mandate

* * * to provide for the substantial restoration of

natural quiet and experience in Grand Canyon National

Park.” 61 Fed. Reg. at 69,302. The FAA is also en-

gaged in finalizing new air-tour routes and further

rulemaking to require the use of quiet aircraft technol-

ogy for air tours over the Park.

The court of appeals denied petitions for review of

the FAA’s Final Rule filed by seven environmental

organizations, which are now the petitioners before this

Court, as well as by air-tour operators, local govern-

ment entities, and an Indian Tribe whose reservation is

adjacent to the Park. Petitioner environmental organi-

zations seek this Court’s review of the decision of the

court of appeals that the FAA reasonably interpreted

the Act and complied with applicable procedural re-

quirements, and that judicial intervention to speed up

the ongoing administrative process is not warranted.

ie ererrenenrreeaeenac manic iiciiliiniaibiaieiaianilhe

1. In August 1987, Congress enacted the Overflights

Act. Section 3(b)(1) of the Act required the Secretary

of the Interior to submit, within 30 days, recommenda-

tions to the FAA “regarding actions necessary for the

protection of resources in the Grand Canyon from

adverse impacts associated with aircraft overflights.”

101 Stat. 676 (codified at 16 U.S.C. la-1 note). The Act

required that the recommendations provide for “sub-

stantial restoration of the natural quiet and experience

of the park,” as well as “protection of public health and

safety from adverse effects associated with aircraft

overflight.” Ibid. The Act further required the FAA,

within 90 days, and after notice and comment, to “issue

a final plan for the management of air traffic in the air

space above the Grand Canyon.” § 3(b)(2), 101 Stat. 676

(codified at 16 U.S.C. la-1 note). The FAA was

required to implement the Secretary’s recommenda-

tions without change unless the FAA determined that

implementing the recommendations “would adversely

affect aviation safety.” § 3(b)(2), 101 Stat. 677 (codified

at 16 U.S.C. la-1 note). Finally, the Act required that,

within two years after the effective date of the plan

required under Section 3(b)(2), the Secretary submit a

report to Congress assessing the success of the initial

efforts to attain substantial restoration of natural quiet

and to discuss possible revisions to those efforts.

§ 3(b)(3), 101 Stat. 677 (codified at 16 U.S.C. la-1 note).

2. Within months after passage of the Overflights

Act, the Secretary transmitted to the FAA a series of

recommendations designed to provide for substantial

restoration of the natural quiet in the Park, as required

by the Act. 61 Fed. Reg. at 69,302. After reviewing the

recommendations, the FAA, on June 2, 1988, issued

revised procedures for operation of aircraft in the air-

space above the Park. Special Federal Aviation

Regulation (SFAR) No. 50-2, 53 Fed. Reg. 20,264

(1988). SFAR 50-2 established minimum altitudes, four

flight-free zones, and special routes for air-tour opera-

tors. SFAR 50-2 was to expire within four years, but

the FAA later extended its operation. Pet. App. 4a-5a

& n.1.

On September 12, 1994, the Secretary submitted to

Congress the report (NPS Report or Report) required

by Section 3(b)(3) of the Overflights Act. Pet. App. 5a |

& n.38. The Report included a definition of “substantial

restoration of the natural quiet”—“that 50% or more of

the park achieve ‘natural quiet’ (i.e., no aircraft audible)

for 75-100 percent of the day.” Jd. at 6a (quoting NPS

Report 182). Using that definition, the Report re-

viewed the effectiveness of SFAR 50-2 and offered a

new set of recommendations for further regulatory

action. The Report suggested modification of the exist-

ing air-tour route structure, expansion of flight-free

zones, phased implementation of quieter aircraft

technology, and imposition of a curfew on air-tour

overflights. Jd. at 6a-7a (citing NPS Report 199-200).

In anticipation of the NPS Report, the FAA, in con-

junction with the Secretary, issued an advance notice of

proposed rulemaking seeking comment on potential

measures for reduction of aircraft noise in the Park. 59

Fed. Reg. 12,740 (1994). In July 1996, the FAA issued a

notice of proposed rulemaking (NPRM) for revisions to

SFAR 50-2. 61 Fed. Reg. at 40,120. The FAA received

more than 14,000 comments. Jd. at 69,305.

3. On December 31, 1996, the FAA issued the Final

Rule. The Rule expands the area covered by flight

limitations; caps the number of aircraft at the number

operating in 1996; requires tour operators to submit

three reports every year on their flights; imposes a

curfew under which air tours may not operate between

6 p.m. and 8 a.m. from May through September and

between 5 p.m. and 9 a.m. from October through April;

establishes new minimum altitudes for flights in various

areas of the park; and creates new flight-free zones. 61

Fed. Reg. at 69,330-69,332; Pet. App. 8a-9a.

The FAA determined that adoption of the Rule

would nearly achieve substantial restoration of the

natural quiet in the Park by 1997. The FAA also

proposed two additional actions—to establish new, and

to modify existing, flight routes and to require tour

operators to use quieter aircraft. The FAA estimated

that, if the quiet technology rule was adopted, 57.4% of

the Park would experience natural quiet for at least

75% of each day by the year 2008. Pet. App. 6a, 8a, 9a.’

Based on initial surveys of air-tour operators as well

as operation specifications, the FAA had determined

that the Rule would permit approximately 136 aircraft

to operate within the area covered by flight restric-

tions. Pet. App. lla. After the Final Rule was issued,

however, the FAA obtained additional data showing

that it had underestimated the number of eligible air-

craft. Jbid. The FAA therefore reevaluated the

environmental analyses completed for the Final Rule

and published its results in a notice of clarification and

request for comments. 62 Fed. Reg. at 58,898. The

FAA determined that, although the new information

changed the environmental analyses, the changes did

not warrant modification of the Final Rule. Jbid.

Although the greater number of eligible aircraft would

1 The FAA subsequently withdrew the notice of availability of

proposed routes that it issued simultaneously with the Final Rule.

63 Fed. Reg. 67,545 (1998). The FAA, in consultation with NPS, is

considering alternatives to that proposal, ibid., and anticipates

issuing a new notice of availability in the near future.

cause the Final Rule to be less effective in achieving the

substantial restoration of natural quiet over time, the

Final Rule still represented progress toward that end,

and the FAA concluded that the quiet-technology rule-

making and the finalization of the air-tour routes, when

completed, would result in attainment of the statutory

goal. Id. at 58,900, 58,905.

4. a. Four petitions for review of the Final Rule

were filed in the court of appeals. Pet. App. la-2a.

Three of the petitions essentially argued that the Rule

does “too much, too soon.” Jd. at 2a.” By contrast, in

the fourth petition for review, seven environmental

organizations,’ which are now the petitioners before

this Court, contended that the Final Rule does “too

little, too late.” Jbid. Petitioners argued that the

Rule’s definition of “substantial restoration of the

natural quiet” is not sufficiently stringent and that “a

2 The petitioners included (1) a group of air-tour operators

who argued that the Final Rule is more stringent than Congress

intended; (2) the Clark County Department of Aviation and the

Las Vegas Convention and Visitors Authority, which focused on

the possible elimination of a specific route as a result of the

expansion of the flight-free zones; and (3) the Hualapai Tribe,

which raised several procedural issues and also claimed that the

FAA had violated its trust responsibility to the Tribe by failing to

follow the requirements of the National Environmental Policy Act

of 1969, 42 U.S.C. 4321 et seq., and the National Historic Preserva-

tion Act of 1966, 16 U.S.C. 470 et seg. The Tribe’s reservation is

adjacent to the Park, and it feared that the forced relocation of air-

tour routes would cause more flights to pass over its land. See Pet.

ii; Pet. App. la-2a, 12a, 25a, 28a.

3 The organizations are the Grand Canyon Trust, the National

Parks and Conservation Association, the Sierra Club, the Wilder-

ness Society, the Friends of Grand Canyon, Grand Canyon River

Guides, Inc., and the Northern Arizona Audubon Society. See Pet.

ii.

rule that will not achieve substantial restoration until

the year 2008 is inconsistent with the statutory goal.”

Id, at 30a.

b. The court of appeals denied the petitions for re-

view. With regard to petitioners’ contentions, the court

upheld as reasonable the Final Rule’s interpretation of

“substantial restoration of the natural quiet” to mean

that at least 50% of the Park experience natural quiet

during at least 75% of the day, rejecting both the

argument of industry organizations that the definition

required too much quiet and petitioners’ ciaim that it

required too little. Pet. App. 16a-17a, 30a-34a. The

court of appeals also rejected petitioners’ claim that the

Final Rule will achieve substantial restoration of the

natural quiet “too late,” and their related request that

the court require the FAA to issue, within 60 days,

regulations that will immediately achieve substantial

restoration of the natural quiet in the Park; direct that

the regulations establish flight-free zones ensuring that

at least 50% of the Park is noise-free; and retain juris-

diction over the case to ensure compliance. Jd. at 35a-

39a.

In rejecting the latter claim and petitioners’ request

that the court order the FAA to take various measures,

the court of appeals noted that several agency actions

had been completed after the statutory deadlines for

those actions had passed. Pet. App. 36a-37a. And the

court stated that “[petitioners’] frustration with the

agencies’ slow and faltering pace is understandable.”

Id. at 36a. The court rejected, however, petitioners’

argument that Congress intended that the natural quiet

be fully restored in the Park within 120 days after

passage of the Act. Jd. at 37a. The court held that all

Congress ordered within 120 days was the development

of a plan, not full achievement of the statutory

objective. The fact that Congress required the Secre-

tary of the Interior to submit a progress report two

years after the Act’s effective date showed that

Congress understood the agencies’ initial efforts might

not be fully successful. bid. The court also rejected

petitioners’ contention that agency action had been

unreasonably delayed, given the complexity of the

issues and the fact that the FAA had proposed

additional actions to achieve the statutory objective.

Thus, the court concluded, it was neither contrary to

the Act nor inherently unreasonable for the FAA to

promulgate a rule that did not contemplate full achieve-

ment of the statutory objective until ten years after the

rule was issued. /d. at 37a-39a.

ARGUMENT

This Court’s review of the decision of the court of

appeals is not warranted. The decision of the court of

appeals is correct. It does not conflict with the decision

of any other court of appeals or with any decision of this

Court, and the issue presented arises under unique

statutory provisions.

1. The court of appeals correctly rejected peti-

tioners’ contention (Pet. 12-19) that the FAA and the

Department of the Interior have “unlawfully withheld

or unreasonably delayed” (5 U.S.C. 706(1)) action

required by the Overflights Act. As the court of

appeals explained, although the Act “manifest|s] a con-

gressional concern with expeditious agency action,” it

does not set a deadline for achievement of the goal of

substantial restoration of the natural quiet in the Park.

Pet. App. 36a-37a. And the agencies have not acted

unreasonably because of the time it has taken to

promulgate the rule that petitioners challenge here, or

because the agencies’ actions may not fully achieve the

Act’s goal of substantial restoration of the natural quiet

until the year 2008. See id. at 37a-39a.

a. Section 3 of the Act set deadlines for the promul-

gation of an initial plan to achieve that goal and

submission of the NPS Report evaluating the success of

the plan, see 101 Stat. 676 (codified at 16 U.S.C. la-1

note), but it set no deadline for achieving the goal itself.

“Indeed, the provision for a report, which was to dis-

cuss whether the plan had succeeded and suggest

revisions, makes clear Congress contemplated that the

agencies’ first plan might not succeed and might have to

be revised—as the agencies have done in the regulatory

plan at issue here.” Pet. App. 37a.

The agencies were somewhat tardy in meeting the

statutory deadlines, but petitioners never sought to

compel the actions subject to the deadlines, and those

actions were completed more than four years ago.

There is accordingly no issue in this case concerning

whether, or under what circumstances, a court might

have compelled the FAA to take those specific actions.

Instead, petitioners challenge FAA’s new, more strin-

gent approach, embodied in the Final Rule, which the

FAA promulgated in response to the NPS Report. The

Overflights Act did not expressly require the FAA to

issue that new rule, and certainly did not require it to

do so by any fixed date.

b. Although the issue is now essentially moot, we

note that the FAA did not take unreasonably long to

promulgate the Final Rule. Petitioners erroneously

contend (Pet. 14) that the FAA “procrastinated for

more than a decade in passing regulations designed to

fulfill [the Act’s] mandate.” On the contrary, the FAA

promulgated SFAR 50-2 in June 1988, less than a year

after Congress passed the Overflights Act. See 53 Fed.

Reg. at 20,264. As the court of appeals explained, that

regulation “went part of the way toward restoration.”

Pet. App. 37a. “As Congress directed, the government

then evaluated progress under that regulation” (zbid.),

and that evaluation revealed that aircraft noise would

be greater than desired despite SFAR 50-2. In re-

sponse, the FAA proposed and promulgated the Final

Rule, and it proposed two additional actions that will

provide for further aircraft noise reduction by estab-

lishing new aircraft routes and requiring the intro-

duction of quiet aircraft technology.

Nothing in that course of action was unreasonable.

Tellingly, petitioners never challenged SFAR 50-2 as

failing to achieve the Act’s goal, never sought to compel

the NPS to issue its report evaluating the success of

that regulation, and never sought to compel the FAA to

amend SFAR 50-2 in response to the NPS Report.

Indeed, “this is the first time any party has challenged

the agency’s delay in court.” Pet. App. 37a.

c. Finally, it was reasonable for the agencies to pro-

vide for final achievement of the substantial restoration

of the natural quiet in ten years from the promulgation

of the Final Rule. As the court of appeals explained,

the issues involved are complex, and achieving the

statutory goal will require a multitude of agency

actions. Pet. App. 38a. Deciding upon new air-tour

routes, for example, requires the FAA to take into

account air safety concerns, as well as the interests of

persons such as members of the Hualapai Tribe who

live near the Park and may be affected if overflights are

rerouted to areas outside its boundaries. [bid. The

process of establishing the flight-free zones must also

take into account the adverse consequences that would

ensue if they “do no more than shift the flights and

their noise from the Park to the Hualapai Reservation.”

Id. at 35a. Moreover, the quiet aircraft technology rule-

making also requires a careful balancing of the desire

for reduced aircraft noise with aircraft safety and other

concerns.

While the additional actions are being completed, the

Final Rule will provide a significant reduction in noise

levels. Because of the curfew, there are no air-tour

flights over the Park during evening, night-time, and

early morning hours. Pet. App. 8a. During the day, as

well, natural quiet has been restored in much of the

Park. The FAA concluced that the Final Rule will

substantially restore natural quiet in 41.7% of the Park

in 1997, even after considering the FAA’s revised esti-

mate of the number of aircraft operating in the Park.

Id. at 1la. The area of the Park in which natural quiet

has been substantially restored is expected to decrease

to 34.2% in 2008, if aircraft operations continue to

increase as expected. However, the reduced effec-

tiveness of the Final Rule over time will be offset by

the benefits from the quiet aircraft technology regula-

tions and the new air-tour route structure. Jbid.

Given the ongoing agency process, congressional

oversight of that process, the complexity of the regula-

tory issues, and the need to examine the safety impacts

of any regulation of aircraft while in the air, the court of

appeals correctly rejected petitioners’ claim of agency

action unlawfully withheld or unreasonably delayed.

2. Petitioners quote (Pet. 12-13) the Tenth Circuit’s

decision in Forest Guardians v. Babbitt, 164 F.3d 1261

(1998), amended on denial of reh’g, No. 97-2370, 1999

WL 236274 (Apr. 22, 1999), for the proposition that,

because 5 U.S.C. 706(1) uses the word “shall,” “Con-

gress has stated unequivocally that courts must compel

agency action unlawfully withheld or unreasonably

delayed.” 164 F.3d at 1268-1269. Forest Guardians,

however, involved a situation quite different from the

one here. In that case, the Secretary of the Interior

listed a species of fish as endangered under the Endan-

gered Species Act of 1973, 16 U.S.C. 1531 et seq., but

failed to meet the statutory deadline for designating

critical habitat for the species because Congress had

imposed a moratorium on such designations and then

greatly limited the availability of appropriated funds to

the Fish and Wildlife Service for determining which

species should be listed and what their critical habitats

should be. 164 F.3d at 1268. Despite those appropria-

tions restrictions, a panel of the Tenth Circuit con-

cluded that Section 706(1) required the district court

to issue an order directing the Secretary to comply with

what the panel deemed to be an abiding nondiscretion-

ary statutory duty. 164 F.3d at 1270.

Here, in contrast, the court of appeals correctly con-

cluded that the Overflights Act sets no express dead-

line for the substantial restoration of the natural quiet

and that the timetable contemplated by the FAA is not

unreasonable. Because the court found that the FAA

did not violate the Overflights Act, it did not address

the issue in Forest Guardians—whether Section 706(1)

requires a court to issue an injunction compelling com-

pliance when an agency has been found to have violated

a nondiscretionary statutory duty. Indeed, in Forest

Guardians, the court recognized that, when an Act of

Congress contains no precise deadline but instead re-

quires an agency to act within an expeditious, prompt,

or reasonable time, Section 706 “leaves in the courts

the discretion to decide whether agency delay is

unreasonable.” 164 F.3d at 1272. The court of appeals

properly exercised that discretion in this case when it

concluded that the FAA has not unreasonably delayed

agency action here.

Petitioners also claim (Pet. 15) that the courts of

appeals have not permitted delays in agency action of

the length that the court of appeais allowed here. Of

course, deciding a claim of unreasonable delay requires

detailed consideration of the circumstances of the rule-

making at issue, not just a comparison of the alleged

delay with time periods that have been Fuca g or

disapproved in other cases. See Telecommunications

Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C.

Cir. 1984) (TRAC) (listing: factors to consider in decid-

ing unreasonable delay claim). But petitioners’ argu-

ment suffers from an even more fundamental flaw: it

rests upon an inapt comparison between this case, in

which petitioners’ fundamental complaint is that an

agency has taken action but that action allegedly does

not fully achieve the statutory goal with sufficient

speed, with cases in which the gravamen of the

complaint is the failure of an agency even to issue a rule

or take any other action. E.g., Washington Legal

Found. v. Alexander, 984 F.2d 483, 488 (D.C. Cir. 1993)

(alleged unreasonable delay in issuing a new policy or

regulation in final form); Community Nutrition Inst. v.

Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (alleged

unreasonable delay in holding a hearing), cert. denied,

475 U.S. 1123 (1986); MCI Telecomms. Corp. v. FCC,

627 F.2d 322, 340 (D.C. Cir. 1980) (alleged delay in

deciding whether to accept or reject tariff revis

ions). Section 706(1) speaks only to the latter situa-

tion, by authorizing courts to compel “agency

action”—generally meaning an agency rule, order, or

license determination, see 5 U.S.C. 551(13)—that has

been unlawfully withheld or unreasonably delayed.

Section 706(1) does not speak to the content of a rule

once it is issued.

Here, petitioners’ claim was not that the agencies had

failed to act, see Pet. 16 (“No one accused the [FAA] of

‘doing nothing.’”), but that the Final Rule and the other

actions that the FAA proposed will not require sub-

stantial restoration of the natural quiet in the Park as

quickly as the Act allegedly demands, see ibid.; Pet.

App. 35a. But, as we have said, taking administrative

action is one thing, completely remedying the problem

at which a statute is directed quite another.

None of the court of appeals cases that petitioners

cite (Pet. 15) as inconsistent with the decision of the

court of appeals involved the construction of a statute

to determine whether an agency rule was unreasonable

in specifying the time by which the statutory objective

must be fully achieved. In any event, decisions con-

struing statutes other than the Overflights Act could,

at most, be minimally relevant to the question whether

the court of appeals correctly construed that Act in this

ease. Thus, although petitioners’ cases suggest that

relief may be appropriate under Section 706(1) if an

agency fails to promulgate any rule long after the

deadline by which Congress directed it to act has

passed, those cases do not establish any time period by

which agencies must ensure that all the substantive

goals of the statutes they enforce have been attained.

Determining when a statutory objective must be ac-

complished requires consideration of the terms of the

specific statute at issue, not Section 706(1). Here, the

court of appeals correctly concluded that the FAA’s

timetable for achieving substantial restoration of the

natural quiet in the Park, as required by the Over-

flights Act, was reasonable under that Act.

3. Finally, petitioners’ contention (Pet. 19-20) that

the legal question decided by the court of appeals is of

national importance is unpersuasive. Petitioners first

argue that the case has special importance because it

comes from the court of appeals for the District of

Columbia Circuit. Petitioners contend (Pet. 19) that

other courts, which look to the D.C. Circuit for guidance

on questions of administrative law, will be led astray by

the decision, which petitioners assert is an “unpre-

cedented departure from |the] APA[‘s] mandate” that a

court compel agency action unreasonably delayed (Pet.

16) and from past D.C. Circuit precedent (Pet. 13-14).

As we have explained albove, however, the court of

appeals did not hold that it has discretion to decline to

compel agency action unreasonably delayed; rather it

held that the FAA and Department of the Interior have

not delayed unreasonably. See pp. 11-12, supra. That

holding did not depart from past precedent but applied

the precedent that petitioners accuse the court of

ignoring. Compare Pet. App. 36a n.21 (citing TRAC,

750 F.2d at 80) with Pet. 13-14 (citing same). Thus,

there is no danger that other courts of appeals will be

led astray by the decision.*

Petitioners finally argue (Pet. 19-20) that the case

warrants this Court’s review because it involves air-

4 The court of appeals’ decision to “t{ake] the government at

its word” (Pet. 12, 17, 19) that it will proceed expeditiously with

the two proposed rulemakings is also fully consistent with pre-

cedent. See Action on Smoking & Health v. Department of Labor,

100 F.3d 991, 994-995 (D.C. Cir. 1996); In re United Steelworkers of

Am., 783 F.2d 1117, 1119-1120 (D.C. Cir. 1986) (Steelworkers); Oil,

Chem. & Atomic Workers Int’l Union v. Zegeer, 768 F.2d 1480,

1488 (D.C. Cir. 1985) (Atomic Workers); TRAC, 750 F.2d at 80.

The court of appeals invited petitioners to ask the court for an

order compelling agency 2ction if the FAA takes an unreasonably

long time to complete those rulemakings. That approach, which

avoids placing the court as overseer of day-to-day agency action, is

also consistent with precedent. See Steelworkers, 783 F.2d at 1120;

Atomic Workers, 768 F.2d at 1488.

craft noise in the Grand Canyon National Park, “one of

our Nation’s most treasured sites.” But petitioners do

not contend that any delay in fully achieving the goal

of the Overflights Act poses a danger to the Grand

Canyon itself, and they exaggerate in claiming that the

experience of the Park is “jeopardized by the near-con-

stant noise of thousands of aircraft” (Pet. 20).° In any

event, the fact that the case involves the Grand Canyon

fails to establish that the court of appeals “has decided

an important question of federal law that has not been,

but should be, settled by this Court.” Sup. Ct. R. 10(c)

(emphasis added).

5 Petitioners’ characterization of the effect of aircraft noise in

the Park ignores several important aspects of the Final Rule.

First, because of the curfew, there are no air-tour flights over the

Park during evening, night-time, and early morning hours. Pet.

App. 8a. During the day, natural quiet has been restored in much

of the Park—for example, 41.7% in 1997. Jd. at lla. Although

short of the Act’s ultimate goal, that is a significant improvement

over conditions in 1994, when only 34% of the Park experienced

natural quiet. Jd. at 6a. Moreover, the fact that an area of the

Park does not yet meet the natural quiet standard hardly means

that visitors in that area are likely to be disturbed by noise from

aircraft. The natural quiet standard is very demanding: an aircraft

is considered audible if it causes a three decibel increase in the

ambient noise level, the smallest change perceptible to the human

ear. Ibid. The fact that natural quiet has not been restored in an

area means that the area is expected to experience audible aircraft

noise for more than 25% of the daylight hours, not that such noise

is likely to disturb visitors’ experience of the Park. According to

data summarized in the NPS Report, only about 5% of Park

visitors reported being annoyed by aircraft noise, id. at 15a, and

those data were collected before the reduction in noise effected by

the Final Rule.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.