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Custer County Action Ass'n v. Garvey

ELR Citation: 31 ELR 20804
Nos. No. 99-9543, 256 F.3d 1024/(10th Cir., 07/19/2001)

The court holds that the Federal Aviation Administration's (FAA's) and Air National Guard's (ANG's) orders approving the Colorado Airspace Initiative (Initiative) and its underlying environmental impact analysis did not violate the National Environmental Policy Act (NEPA), the Federal Aviation Act, or petitioners' property rights under the Third and Fifth Amendments to the U.S. Constitution. The Initiative proposed special use airspace changes to the National Airspace System to allow F-16 fighter jets to train under realistic conditions and to allow for changes in commercial aircraft corridors required for operation of the Denver International Airport. Petitioners argued that the final environmental impact statement for the Initiative was inadequate under NEPA. The court first holds that the administrative record establishes that the ANG and the FAA performed a detailed analysis of the Initiative's potential noise impacts and considered potential impacts on wilderness and other sensitive areas. Moreover, the agencies' socioeconomic impact analysis was adequate to foster informed public participation and decisionmaking. Further, the cumulative impact analysis is legally sufficient, and because the record makes clear that the Initiative has independent utility, the need for a programmatic or nationwide environmental analysis was not triggered. The court next holds that because the administrative record demonstrates that the ANG and the FAA defined the objectives of the Initiative, identified alternatives that would accomplish those objectives, and took a hard, comparative look at the environmental impacts associated with each reasonable alternative, petitioners' challenge to the adequacy of the alternatives analysis fails. The court then holds that the FAA also did not violate the Federal Aviation Act, FAA regulations, or the Administrative Procedure Act by approving the Initiative. Consequently, petitioners' Fifth Amendment claim that the Initiative constitutes an "unauthorized" or "unlawful" taking cannot stand. Likewise, the petitioners' claim that they have a Third Amendment right to refuse military aircraft training in airspace within the immediate reaches of their property also failed. Petitioners' request for review was therefore denied.

Counsel for Petitioners
Brian B. O'Neill
Faegre & Benson
90 S. 7th St., Minneapolis MN 55402
(612) 336-3000

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

Brorby, J. Before Seymour and Brown,* JJ.

* The Honorable Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation.