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Westside Property Owners v. Schlesinger

Citation: 9 ELR 20432
No. No. 77-1217, 597 F.2d 1214/13 ERC 1140/(9th Cir., 05/07/1979) Aff'd

The Ninth Circuit Court of Appeals affirms a district court's judgment rejecting challenges on various grounds by nearby landowners to the location of F-15 jet aircraft at Luke Air Force Base in Arizona. Appellants have failed to show that the lower court erred in concluding that the Air Force's environmental impact statement (EIS) failed to comply with the requirements to the National Environmental Policy Act (NEPA) regarding identification of the environmental effects of the action, discussion of reasonable alternatives, and consideration of the EIS in making the final decision. The district court also properly dismissed on sovereign immunity grounds a claim seeking injunctive relief against operations at the base on the ground that they constitute a taking of appellants' property without just compensation in violation of the Fifth Amendment. The lower court further correctly determined that the Federal Aviation Administration's (FAA's) authority over military aviation under the Federal Aviation Act and the Noise Control Act of 1972 is limited to air traffic control and does not encompass regulation of aircraft noise. Appellants' contention that the FAA has a non-discretionary duty to control noise pollution resulting from military aircraft flights at Luke is therefore baseless, and the district court properly granted summary judgment in favor of appellees on this claim. Finally, the court of appeals rules that the lower court did not err in holding that a 1971 agreement formalizing a preexisting understanding regarding the training of German air force pilots at Luke did not constitute a "major Federal action" with significant environmental effects so as to require preparation of an EIS under NEPA.

Counsel for Plaintiffs-Appellants
Jeremy E. Butler
Lewis and Roca
First National Bank Plaza, 100 W. Washington St., Phoenix AZ 85003
(602) 262-5311

Counsel for Defendants-Appellees
John J. Zimmerman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Before BARNES and CHOY, Circuit Judges, and BARTELS,* District Judge.