James Lyons v. Faa , 671 F. App'x 674 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES E. LYONS; TINA NGUYEN; No. 14-72991
MARY JANE MCCARTHY; A. FRANK
ROTHSCHILD,
Petitioners, MEMORANDUM*
v.
FEDERAL AVIATION
ADMINISTRATION; et al.,
Respondents.
On Petition for Review of an Order of the
Federal Aviation Administration
Argued and Submitted December 14, 2016
San Francisco, California
Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,** District Judge.
Petitioners James E. Lyons, Tina Nguyen, Mary Jane McCarthy, and A.
Frank Rothschild timely seek judicial review, pursuant to 49 U.S.C. § 46110, of a
final action of the Federal Aviation Administration’s ("FAA"). Reviewing under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
the standards of the Administrative Procedure Act, Barnes v. U.S. Dep’t of
Transp., 655 F.3d 1124, 1132 (9th Cir. 2011), we deny the petition.
1. The FAA did not pre-judge the environmental impacts of the proposed
project. Read most naturally, the challenged statement in the FAA letter means
only that, if the analysis of the project were to demonstrate significant impacts,
then the project would be altered or tabled. The agency conducted an extensive,
detailed, mathematical analysis of the anticipated noise impacts. See City of
Mukilteo v. U.S. Dep’t of Transp., 815 F.3d 632, 638 (9th Cir. 2016)
("[A]pproving a schedule which included the date a FONSI could issue did not
obligate the FAA to reach a Finding of No Significant Impact. The FAA simply
identified its preferred outcome and laid out an optimistic timetable for achieving
that outcome.").
2. The FAA’s use of estimated future flights and flight tracks was not
arbitrary and capricious. The very nature of modeling forecasts requires an agency
to use reasonable estimates that it develops from its expertise. See, e.g., City of
Mukilteo, 815 F.3d at 637 (noting that "we are to defer to the FAA especially in
areas of agency expertise such as aviation forecasting" (internal quotation marks
omitted)).
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3. The FAA properly assumed that the adoption of the proposed action
would not result in an increased number of flights in the Metroplex. As in Seattle
Community Council Federation v. FAA, 961 F.2d 829, 836 (9th Cir. 1992), this
project "is not designed to induce growth but rather to enhance the safety and
efficiency of [existing] traffic." See also Morongo Band of Mission Indians v.
FAA, 161 F.3d 569, 580 (9th Cir. 1998) ("Growth certainly may be a foreseeable
indirect effect of the [project]. However, the project was implemented in order to
deal with existing problems," so growth need not be discussed in the environmental
assessment.); Barnes, 655 F.3d at 1138 (describing the holdings of Morongo Band
and Seattle Cmty.).
4. The FAA properly used a baseline that incorporated the noise levels from
an anticipated increase in the number of flights over time. See Cascadia Wildlands
v. Bureau of Indian Affairs, 801 F.3d 1105, 1112 (9th Cir. 2015) ("An agency can
take a ‘hard look’ at cumulative impacts . . . [by] incorporating the expected impact
of [a reasonably foreseeable] project into the environmental baseline against which
the incremental impact of a proposed project is measured.").
Petition DENIED.
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