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Grand Canyon Air Tour Coalition v. Federal Aviation Admin.

Citation: 29 ELR 20075
No. 97-1003, 154 F.3d 455/(D.C. Cir., 09/04/1998)

The court upholds a Federal Aviation Administration (FAA) rule that was promulgated pursuant to the Overflights Act and designed to reduce aircraft noise from sight-seeing tours in the Grand Canyon National Park. The Act required the Secretary of the Interior, via the National Park Service (NPS), to submit recommendations to the FAA concerning the restoration of natural quiet in the park. Four groups of petitioners — a coalition of air tour operators, a local county, a Native American tribe, and environmentalists — challenged the rule that was issued in response to those recommendations. The court first holds that the NPS' and the FAA's interpretation of the phrase "substantial restoration of the natural quiet and experience of the park" is not overly restrictive of aircraft overflights or contrary to the plain meaning of the Overflights Act and its legislative history. The court rejects the coalition's argument that the agencies erred in defining the term "natural quiet" without regard to other sounds in the park. The rule does not define "natural quiet" as sound of up to three decibels, but rather, defines it as sound of up to three decibels above the ambient level. The court also rejects the coalition's contention that the agencies erred by equating "quiet" with the absence of detectable sound rather than the absence of noise that would disturb visitors or disrupt their experiences in the park. However, this characterization misapprehends the FAA's brief and Federal Register notice as well as the NPS' report. These documents are replete with references that the restoration of the natural quiet should respond to visitors' experiences. Likewise, the court rejects the arguments that the definition of "natural quiet" and the agencies' effort to ensure quiet in 50 percent of the park for 75 to 100 percent of the day are unreasonable. There is nothing in the Overflights Act's reference to natural quiet that requires the term to be defined by survey results rather than decibel level, and there is nothing unreasonable in the FAA's explanation for relying on acoustical measurements rather than visitor surveys. Similarly, nothing in the statute instructs the FAA to create only one or more locations of quiet and to herd all visitors into those quiet zones. Protecting 50 percent of the park for 75 percent of the day gives back-country visitors a reasonable chance of seeing the less-traveled areas in peace.

The court then holds that the rule does not violate the Administrative Procedure Act (APA). The FAA did not violate the APA's notice-and-comment procedures, because under the Overflights Act's statutory scheme, the FAA had no choice but to adopt the NPS' recommendations, and, hence, it did not need to provide additional comments of its own on the NPS' definition of the statutory terms. Moreover, because the NPS offered an adequate and reasonable justification for the definitions it did choose, the FAA's adoption of the definitions did not violate the APA's substantive requirement of agency rationality. In addition, the FAA considered the impact its regulation would have on the air tour industry. The agencies also gave a sufficient explanation for its decision to revise earlier regulations concerning aircraft noise. Furthermore, the FAA adequately responded to comments concerning its Regulatory Flexibility Act analysis, and it considered alternatives to the rule it adopted.

Next, the court holds that the county's argument that it was irrational for the FAA to implement expanded flight-free zones until it issued final corridors and routes is moot, because the FAA has formally extended the effective date of theflight-free zones until January 31, 1999. The court also holds that the county's claim that the flight-free zones will have a negative impact on Las Vegas-based flights is unripe. The FAA is still working on corridors and routes, and, given the FAA's stay of the flight-free zones pending promulgation of new routes, the county will not suffer hardship. Similarly, the court holds that the county's National Environmental Policy Act (NEPA) claims are unripe. Without knowing whether the final list of routes will leave air tour operators without a viable alternative, the court cannot evaluate the NEPA claim factually. The court also holds that the tribe's NEPA. APA, and National Historic Preservation Act claims are unripe. Until the court knows what routes the air tours will take, it cannot assess whether, or how much, they will affect the tribe's reservation.

In response to the environmentalists' petition, the court further holds that the rule's definition of "substantial restoration" of the natural quiet satisfies the Overflights Act. The statute does not say that a substantial area of the park must be quiet 100 percent of the time, and the FAA's determination that 50 percent of the park achieve natural quiet for at least 75 percent of the day is reasonable. In addition, neither the statute nor its legislative history compels the court's acceptance of the environmentalists' argument that the definition does not provide for "substantial" restoration. The term is too ambiguous to compel the "more than half" meaning claimed by the environmentalists, and it is more than sufficiently elastic to support the agency's definition of substantial restoration as reasonable. Besides, even if "substantial" does mean more than half, the FAA's definition of substantial restoration effectuates that meaning. The court also rejects the environmentalists' claim that the Overflights Act forbids the government from considering the impact of its regulations on the air tour industry. And, the environmentalists' arguments that the FAA inadequately considered alternatives to the rule with respect to quieter aircraft and the reduction of flights have been mooted or rendered unripe by new data on the number of aircraft flying in the park that has persuaded the FAA to reconsider alternatives to the rule.

Last, the court holds that the final rule is not too late, even though it will not achieve substantial restoration until the year 2008. The language of the Overflights Act does manifest a congressional concern with expeditious agency action, but the statute's timing provisions do not support the environmentalists' contention that Congress intended the job to be done in 120 days. Although the FAA was 10 years tardy in issuing the rule, it is unfair to characterize the agency as doing nothing during that period. Moreover, issuing a rule that does not contemplate final achievement of Congress' goal until 2008 is not unreasonable given the complexity of the issues. Furthermore, the court rejects the environmentalists' claim that the rule should be deemed arbitrary and capricious because it will not achieve substantial restoration of natural quiet on its own because the rule is only the first step of a three-rule process.

Counsel for Petitioner
E. Donald Elliott
Paul, Hastings, Janofsky & Walker
1299 Pennsylvania Ave. NW, Washington DC 20004
(202) 508-9500

Counsel for Respondent
Ronald M. Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Silberman and Rogers, JJ.