32 ELR 20764 -- Natural Resources Defense Council, Inc. v. Federal Aviation Administration

Natural Resources Defense Council, Inc. v. Federal Aviation Administration

No. 01-1225 (292 F.3d 875) (UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA June 14, 2002)

ELR Digest

The court holds that an environmental group's challenge to the Federal Aviation Administration's (FAA's) determination that the National Parks Air Tour Management Act does not bar proposed sightseeing tours out of the Jackson Hole, Wyoming, airport is not ripe for review. In 1999, and again in 2000, an individual applied to the airport's managing board for permission to operate charter services, including scenic air tours, out of the airport. The board approved the individual's application and then rescinded, concerned that the scenic tours would violate the Act's restrictions on conducting sightseeing tours over national parks. The individual and the board applied to the FAA for determinations on various parts of the Act and their applicability to the individual's proposed flights. The FAA concluded that the proposed flights would not violate the Act, and an environmental group petitioned for review. The court first holds, however, that the group's petition is not ripe for review. The interpretation of the Act that the environmental group challenged was set forth in three FAA letters that on their face demonstrate the tentativeness of the legal determination regarding the individual's operations. The FAA's interpretation of the Act was not based on a factual determination that the individuals' actual operations would be immune from regulation under the Act. Rather, in determining that the Act did not bar the proposed flights, the FAA relied solely on the individual's descriptions of the flights. In essence, the FAA's views were based on a hypothetical factual scenario and hence are not appropriate for review. The court next holds that the issues raised by the environmental group's petition are not strictly legal in nature. Determining the applicability of the Act to the individual's actual flights requires the application of law to facts based on evidence that was not before the FAA and is not before the court. And the challenges to the FAA's interpretation of the Act, which present legal issues, are intertwined with the FAA's assessment of the facts. The court further holds that the environmental group failed to demonstrate immediate, direct, and significant hardship to warrant immediate review. Thus, the group's petition is dismissed as unripe.

The full text of this decision is available from ELR (9 pp., ELR Order No. L-538).

Counsel for Petitioners
Robert A. Bourque
Simpson, Thacher & Bartlett
425 Lexington Ave., New York NY 10017
(212) 455-2000

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]