City of Los Angeles v. Stephen Dickson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES, No. 19-71581
Petitioner,
CITY OF CULVER CITY, MEMORANDUM*
Petitioner-Intervenor,
v.
STEPHEN M. DICKSON, in his official
capacity as Administrator, Federal Aviation
Administration; FEDERAL AVIATION
ADMINISTRATION,
Respondents.
On Petition for Review of an Order of the
Federal Aviation Administration
Argued and Submitted June 11, 2021
Pasadena, California
Before: MURGUIA, BADE, and LEE, Circuit Judges.
The City of Los Angeles and Culver City (“Cities”) petition for review of two
Federal Aviation Administration (“FAA”) actions pursuant to 49 U.S.C. § 46110.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We grant the petition in part and dismiss the petition in part.
1. The Cities argue that the FAA violated the National Environmental Policy Act
(“NEPA”), the National Historic Preservation Act (“NHPA”), and section 4(f) of the
Department of Transportation Act by issuing three amended flight procedures for
aircraft arriving at Los Angeles International Airport (the “amended Arrival
Routes”) without environmental review. As an initial matter, we conclude that we
have jurisdiction over the petition for review of the amended Arrival Routes. See S.
Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 675 (9th Cir. 1989) (explaining
that we have an obligation to determine the scope of our own jurisdiction).
Under 49 U.S.C. § 46110(a), we may review “an order issued by” the FAA
based on a petition filed “not later than 60 days after the order is issued” unless
“there are reasonable grounds for not filing by the 60th day.” Here, as the FAA
concedes, the amended Arrival Routes constitute a final, reviewable agency order
because the amended Arrival Routes are supported by a reviewable administrative
record, definitively state the FAA’s position, have a direct and immediate effect on
the Cities, and require immediate compliance. See MacLean v. Dep’t of Homeland
Sec., 543 F.3d 1145, 1149 (9th Cir. 2008) (per curiam) (citing Gilmore v. Gonzales,
435 F.3d 1125, 1132 (9th Cir. 2006)). Although Los Angeles petitioned for review
of the amended Arrival Routes more than a year after the amended Arrival Routes
were issued, and Culver City moved to intervene in the action several weeks after
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that, the Cities had reasonable grounds for the delay because the FAA had agreed to
toll the statutory petition-for-review deadline while the Cities attempted to work
with the FAA to address their concerns.1 See Kashem v. Barr, 941 F.3d 358, 391
(9th Cir. 2019) (explaining that there were “reasonable grounds” for delay based on
the government’s concession); see also City of Phoenix v. Huerta, 869 F.3d 963, 970
(D.C. Cir. 2017). Therefore, we have jurisdiction over the Cities’ NEPA, NHPA,
and section 4(f) claims.
NEPA requires the FAA and other federal agencies to evaluate and disclose
the environmental impacts of their actions. See 42 U.S.C. § 4332; see also Morongo
Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998). The NEPA
process is intended to ensure that “before an agency can act,” the agency considers
potential environmental impacts. Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 349, 353 (1989). The FAA did not do so here.2 In compiling the
1
We grant Los Angeles’s motion to consider the tolling agreement (Doc. 115),
which provides that Los Angeles had “reasonable grounds” to delay filing a petition
for review of the amended Arrival Routes.
2
We grant the two pending motions to supplement the record, see Doc. 50 (FAA’s
Cross-Motion to Supplement the Record); Doc. 63 (Los Angeles’s Motion to
Complete the Record, alternatively seeking supplementation of the record), because
the supplemental documents the FAA and Los Angeles offer are necessary to
determine whether the FAA properly “considered all relevant factors and . . .
explained its decision.” See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.
2005) (quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443,
1450 (9th Cir. 1996)). However, we deny Los Angeles’s request to complete the
record (Doc. 63), because there is no indication the FAA relied on these documents
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administrative record for the amended Arrival Routes, the FAA pointed to two
documents as the basis for its decision—a memo “confirming” the agency had
completed the necessary environmental review, and an “Initial Environmental
Review” document. But both documents postdated the publication of the amended
Arrival Routes by several months. Accordingly, they cannot constitute the FAA’s
NEPA review. See id. Nor can the undated spreadsheet that the FAA points to for
the first time during this litigation form the requisite review. See Dep’t of Homeland
Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) (“An agency must
defend its actions based on the reasons it gave when it acted.”).
The FAA argues that its post hoc Initial Environmental Review document
brought the agency into compliance with NEPA by documenting the FAA’s
application of a categorical exclusion to NEPA review. A categorical exclusion
excuses an agency from preparing an environmental impact statement or
environmental assessment for a particular action. See Sierra Club v. Bosworth, 510
F.3d 1016, 1018–19 (9th Cir. 2007). But a categorical exclusion may not be applied
when there are “extraordinary circumstances in which a normally excluded action
in performing its environmental review. See Thompson v. U.S. Dep’t of Labor, 885
F.2d 551, 555 (9th Cir. 1989).
We also grant Los Angeles’s Motion for Judicial Notice (Doc. 66), but we deny the
FAA’s Motion to Consider Formatted Document (Doc. 79) as moot, as this
document already exists in the record.
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may have a significant environmental effect.” Id. at 1019 (citation omitted). We
review an agency’s determination that a categorical exclusion applies to a particular
action, and that there are no extraordinary circumstances preventing application of
the categorical exclusion, under the arbitrary-and-capricious standard. See id. at
1022. This standard requires the agency to “articulate a rational connection between
the facts found and the conclusions reached.” Id. at 1023 (citation omitted). In
addition, “when an agency has taken action without observance of the procedure
required by law, that action will be set aside.” Id.
Here, the FAA’s procedures state that “extraordinary circumstances” exist,
and a categorical exclusion may not be applied, when a proposed action is “likely to
be highly controversial on environmental grounds,” meaning that “there is a
substantial dispute over the degree, extent, or nature of a proposed action’s
environmental impacts.” The Cities maintain that, based on the FAA’s own
definition, there were such “extraordinary circumstances” here because there was
significant controversy about the extent to which aircraft were flying below the
minimum altitudes on the original Arrival Routes. In other words, the Cities assert
that there was a substantial dispute over the noise and other environmental impacts
that the amended Arrival Routes would cause, and the public controversy
surrounding the Arrival Routes was evidence of this dispute. But the FAA failed to
address the record evidence indicating that there was a dispute over the potential
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effects of the amended Arrival Routes in the Initial Environmental Review, in
contravention of its own procedures. Therefore, the FAA’s application of a
categorical exclusion was arbitrary and capricious, in violation of NEPA. See Sierra
Club, 510 F.3d at 1023; see also City of Phoenix, 869 F.3d at 972–73. Accordingly,
we grant the Cities’ petition for review of the amended Arrival Routes with respect
to the NEPA claims.
NHPA requires an agency to consider the effects of proposed actions on
historic structures. See Morongo Band, 161 F.3d at 581. “In fulfilling this
obligation, agencies must consult with certain stakeholders in the potentially
affected areas, including representatives of local governments.” City of Phoenix,
869 F.3d at 971; see 36 C.F.R. §§ 800.2(a)(4), (c)(3); 800.5(c). We review an
agency’s NHPA decisions “under the arbitrary and capricious standard.” Morongo
Band, 161 F.3d at 573. The FAA makes no argument that it sought to comply with
NHPA before issuing the amended Arrival Routes. But the FAA contends that its
post hoc Initial Environmental Review document sufficiently analyzed the effects of
the amended Arrival Routes on historic structures. That may be, but the NHPA
requires more—specifically, consultation. Here, the FAA’s admitted failure to
consult with Los Angeles or Culver City violated NHPA, even if the FAA properly
determined that there would be no adverse impacts on historic properties. See id. at
581; see also City of Phoenix, 869 F.3d at 971 (explaining that “the FAA’s failure
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to notify and provide documentation to the City of the agency’s finding of no adverse
impact violated regulations under the Preservation Act, and denied the City its right
to participate in the process and object to the FAA’s findings”); 36 C.F.R. § 800.5(c).
Accordingly, we also grant the petition for review with respect to the NHPA claim.
Finally, section 4(f) of the Transportation Act requires an agency within the
Department of Transportation to assess whether a transportation project will “use” a
“public park,” “recreation area,” or “historic site of national, State, or local
significance.” See 49 U.S.C. § 303(c). The term “use” includes “constructive use,”
such as elevated noise levels that “substantially interfere” with the use of a property.
Morongo Band, 161 F.3d at 583. According to the FAA’s procedures, a responsible
FAA official “must consult all appropriate Federal, state, and local officials having
jurisdiction over the affected Section 4(f) properties when determining whether
project-related impacts would substantially impair the resources.” Fed. Aviation
Admin., Order No. 1050.1F, Environmental Impacts: Policies and Procedures § B-
2.2.2 (July 16, 2015). As with an agency’s NEPA and NHPA determinations,
“[d]ecisions regarding . . . the Transportation Act are similarly reviewed under the
arbitrary and capricious standard.” Morongo Band, 161 F.3d at 573. Here, the FAA
ultimately completed its section 4(f) analysis in the post hoc Initial Environmental
Review document, but there is no evidence that the FAA ever consulted with the
Cities regarding the affected section 4(f) properties the FAA identified. What’s
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more, the FAA did not acknowledge its section 4(f) consultation obligation in the
Initial Environmental Review, nor explain why it was excused from consulting with
the Cities. Therefore, the FAA also violated its own section 4(f) procedures, and we
grant the petition for review with respect to the section 4(f) failure-to-consult claim.
In sum, we conclude that the FAA violated NEPA, NHPA, and section 4(f) in
issuing the amended Arrival Routes. Although the typical remedy when we hold an
agency’s action unlawful is vacatur, we have discretion to remand without vacatur
“when equity demands.” Pollinator Stewardship Council v. U.S. EPA, 806 F.3d
520, 532 (9th Cir. 2015) (quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d
1392, 1405 (9th Cir. 1995)). In exercising this discretion, we weigh the seriousness
of the agency’s error against the disruptive consequences of vacating the agency’s
action. Id. Although the failure to complete proper environmental review is a
serious error, the FAA has asserted that the consequences of vacating the amended
Arrival Routes would be severely disruptive in terms of cost, safety, and potential
environmental consequences, and the Cities have offered nothing to counter the
FAA’s contentions about these harmful effects.3 Accordingly, we exercise our
discretion to remand the amended Arrival Routes to the FAA without vacatur,
leaving the amended Arrival Routes in place while the FAA undertakes the proper
3
We grant the FAA’s Motion to Consider Two Documents (Doc. 76) in part with
respect to the Stewart Declaration, which describes the potential effects of vacatur.
We deny the motion as moot with respect to the internal FAA emails.
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NEPA analysis and NHPA and section 4(f) consultation.
2. The Cities also argue that the FAA violated the Administrative Procedure Act,
NEPA, and due process by posting a disclaimer (the “Notice”) on the FAA’s
“Instrument Flight Procedure Information Gateway” website. The Notice states that
the FAA will not consider environmental comments submitted through this
particular website, which is meant for technical feedback from “civil aviation
organizations, affected military and civil air traffic control facilities, and aircraft
owners and sponsors.” Because the Notice does not have a direct and immediate
effect nor require immediate compliance, see MacLean, 543 F.3d at 1149, it is not a
final order within the meaning of 49 U.S.C. § 46110, and we lack jurisdiction to
review it. Accordingly, we dismiss the Cities’ claims regarding the Notice.
PETITION GRANTED IN PART AND DISMISSED IN PART.4
4
Each party shall bear their own costs.
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