ELR Citation: ELR 21239
No(s). 89-1721 (D.C. Cir. Aug 3, 1990)

The court holds that the Federal Aviation Administration's (FAA's) decision that the noise generated by a major new facility planned to replace Denver's Stapleton International Airport will not constitute the "use" of a nearby state park and wildlife refuge under §4(f) of the Department of Transportation Act (DOTA) was supported by substantial evidence, even though the FAA used inappropriate guidelines for measuring the effects of noise. The court holds that by focusing on the reaction of people to noise, the regulations relied on by the FAA neglect the effects of noise on wildlife, the natural environment, and those who visit the park to study and enjoy its wildlife. Further, the regulations do not list wildlife refuges among the land categories to be protected. However, the court holds that the FAA's use of inappropriate guidelines is not prejudicial, since the final environmental impact statement (EIS) supports its conclusion that the park will not be "used." The EIS projects a general decline in peak noise from the new airport. Short projected increases at two peripheral locations will not result in a significant increase in noise levels and do not result in a sufficiently substantial impact to constitute a "use" under DOTA §4(f). The court next rejects petitioners' claims under the National Environmental Policy Act. The FAA carefully considered reasonable alternatives, gave adequate attention to the effects of airport-related projects, and adequately considered the interests of a nearby community.

Counsel for Petitioners
Joel W. Cantrick
Cantrick & Rees
Mellon Financial Ctr., 1775 Sherman St., Ste. 1900, Denver CO 80203-4359
(303) 830-9090

Counsel for Respondents
Peter R. Steenland, Robert L. Klarquist
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Gregory S. Walden, Richard W. Danforth
Federal Aviation Administration
General Counsel's Office
800 Independence Ave. SW, Rm. 900E, Washington DC 20591
(202) 267-3222

Before MIKVA, BUCKLEY, and WILLIAMS, Circuit Judges.