154 F.3d 455 (D.C. Cir. 1998), 97-1003, Grand Canyon Air Tour Coalition v. F.A.A.

Docket Nº:97-1003, 97-1014, 97-1104, 97-1112 and 97-1279.
Citation:154 F.3d 455
Party Name:GRAND CANYON AIR TOUR COALITION, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent, Grand Canyon Trust, et al., Intervenors.
Case Date:September 04, 1998
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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154 F.3d 455 (D.C. Cir. 1998)

GRAND CANYON AIR TOUR COALITION, Petitioner,

v.

FEDERAL AVIATION ADMINISTRATION, Respondent,

Grand Canyon Trust, et al., Intervenors.

Nos. 97-1003, 97-1014, 97-1104, 97-1112 and 97-1279.

United States Court of Appeals, District of Columbia Circuit

September 4, 1998

Argued Nov. 6, 1997.

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[332 U.S.App.D.C. 137] On Petitions for Review of an Order of the Federal Aviation Administration.

Walter A. Smith, Jr. argued the cause for petitioners Grand Canyon Trust, et al., with whom Michael L. Kidney and Robert Wiygul were on the briefs.

E. Donald Elliott argued the cause for petitioner Grand Canyon Air Tour Coalition, with whom Michael A. Wiegard and Christopher A. Cole were on the briefs.

Jill E. Grant argued the cause for petitioner Hualapai Indian Tribe, with whom Joshua S. Grinspoon was on the briefs.

Eliot R. Cutler argued the cause for petitioners Clark County Department of Aviation, et al., with whom John E. Putnam and Stacie Brown were on the briefs.

Ronald M. Spritzer, Attorney, U.S. Department of Justice, argued the cause for respondents. Lois J. Schiffer, Assistant Attorney General, Nancy B. Firestone, Deputy Assistant Attorney General, Albert M. Ferlo, Jr., Attorney, and Patricia Lane, Office of the Chief Counsel, Federal Aviation Administration, were on the brief. Anne S. Almy, Attorney, U.S. Department of Justice, entered an appearance.

Walter A. Smith, Jr., Michael L. Kidney and Robert Wiygul were on the brief for intervenors Grand Canyon Trust, et al.

Jill E. Grant and Joshua S. Grinspoon were on the brief for intervenor Hualapai Indian Tribe.

John E. Putnam, Eliot R. Cutler and Stacie Brown were on the brief for intervenors Clark County Department of Aviation, et al.

Before: SILBERMAN, ROGERS and GARLAND, Circuit Judges.

GARLAND, Circuit Judge:

In response to an Act of Congress, the Federal Aviation Administration (the "FAA") developed a three-part plan to reduce aircraft noise from sightseeing tours in the Grand Canyon National Park (the "Park"). On December 31, 1996, the FAA issued the first final rule and proposed two further rules to implement the balance of the plan. In this case, we consider attacks on the final rule by four groups of petitioners: the Grand Canyon Air Tour Coalition (the "Coalition"), a group of 13 air-tour operators that fly visitors over the Park; the Clark County Department of Aviation and the Las Vegas Convention and Visitors Authority ("Clark County"); the Hualapai Indian Tribe (the "Tribe" or "Hualapai"); and seven environmental groups led by the Grand Canyon Trust (the "Trust").

Three of the four petitioners--the Coalition, Clark County, and the Hualapai--essentially argue that the FAA's rule does "too much, too soon." The Trust, on the other

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[332 U.S.App.D.C. 138] hand, charges that the rule does "too little, too late." We reject both lines of attack and uphold the rule. We do so not because we necessarily believe the rule is "just right," but because we defer to the agency's reasonable exercise of its judgment and technical expertise, and because many of petitioners' attacks are not yet ripe in light of the phased nature of the FAA's proposed solution to the problem of aircraft noise.

I

The rule now before the court has a tortuous and complex history. In this Part of the opinion, we recount only so much of that history as is necessary to aid in our discussion.

A

In June 1987, the FAA issued Special Federal Aviation Regulation ("SFAR") No. 50-1, which regulated aircraft flying below 9,000 feet in the Park. See Special Flight Rules in the Vicinity of the Grand Canyon National Park, 52 Fed.Reg. 22,734 (1987). The regulation, set to expire on June 15, 1992, established minimum altitudes, routes, and noise-sensitive areas from which aircraft were barred. See id. at 22,739. The FAA promulgated the regulations to address safety concerns and because it "believe[d] that there is also a public interest in promoting a quiet environment in the canyon and minimizing the intrusion of aircraft noise on this environment...." Id. at 22,735.

In August 1987, Congress enacted what is commonly referred to as the Overflights Act (the "Act"), see Pub.L. No. 100-91, 101 Stat. 676 (1987) (codified at 16 U.S.C. § 1a-1 note (1992)). The Senate Report accompanying the Act stated that SFAR 50-1 did "not adequately address the adverse effects caused by low flying aircraft" above the Park and that "section 3 of this bill rectifies this inadequacy." S. REP.100-125, at 8 (1987). Section 3 of the Act itself stated that:

[n]oise associated with aircraft overflights at the Grand Canyon National Park is causing a significant adverse effect on the natural quiet and experience of the park and current aircraft operations at the Grand Canyon National Park have raised serious concerns regarding public safety, including concerns regarding the safety of park users.

Overflights Act § 3(a).

To address this problem, Congress required the Secretary of the Interior to submit to the Administrator of the FAA, within 30 days after the enactment of the Act,

recommendations regarding actions necessary for the protection of resources in the Grand Canyon from adverse impacts associated with aircraft overflights. The recommendations shall provide for substantial restoration of the natural quiet and experience of the park and protection of public health and safety from adverse effects associated with aircraft overflight.

Id. § 3(b)(1) (emphasis added). Although it left the content of the recommendations largely open-ended, Congress specifically required the Secretary to prohibit flights below the canyon rim, subject to certain exceptions, and to designate "flight free zones." Id. "Such zones shall be flight free," Congress said, "except for purposes of administration and for emergency operations," including the transportation of supplies and people to and from specified Indian villages. Id.

Next, Congress established an implementation schedule for the Secretary's recommendations:

Not later than 90 days after receipt of the recommendations ... and after notice and opportunity for hearing, the [FAA] shall prepare and issue a final plan for the management of air traffic in the air space above the Grand Canyon. The plan shall, by appropriate regulation, implement the recommendations of the Secretary without change unless the [FAA] determines that implementing the recommendations would adversely affect aviation safety.

Id. § 3(b)(2). If the FAA were to find an adverse effect on aviation safety, it was required, within 60 days and in consultation with the Secretary, to "eliminate the adverse effects on aviation safety and issue regulations implementing the revised recommendations in the plan." Id.

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[332 U.S.App.D.C. 139] Finally, Congress directed the Secretary to submit to it, within two years after the effective date of the plan, "a report discussing (A) whether the plan has succeeded in substantially restoring the natural quiet in the park; and (B) such other matters, including possible revisions in the plan, as may be of interest." Id. § 3(b)(3).

B

In response to the Overflights Act, the Secretary of the Interior submitted recommendations to the FAA in December 1987. In June 1988, the FAA adopted the majority of those recommendations, modified slightly for safety reasons, and implemented them in the form of SFAR 50-2. See Special Flight Rules in the Vicinity of the Grand Canyon National Park, 53 Fed.Reg. 20,264 (1988). The regulation applied to aircraft flying below 14,500 feet and established, inter alia, minimum altitudes, four flight free zones covering 44% of the Park, four flight corridors through those zones, and specified flight routes. 1 Although the regulation was set to expire on June 15, 1992, the FAA twice extended the expiration date, 2 first because the Secretary of the Interior's required report was not yet completed, and then because the FAA needed time to review the Secretary's recommendations and develop a new rule. See Special Flight Rules in the Vicinity of Grand Canyon National Park, 61 Fed.Reg. 40,120, 40,121 (1996) [hereinafter "Proposed Final Rule"].

On September 12, 1994, more than four years late, 3 the National Park Service ("the Park Service" or "NPS"), on behalf of the Secretary of the Interior, submitted the report to Congress required by section three of the Overflights Act. See National Park Service, U.S. Dep't of the Interior, Report on the Effects of Aircraft Overflights on the National Park System (1995) [hereinafter "NPS Report"]. In that report, the Park Service made three important definitional determinations. First, it decided that the appropriate measure for quantifying aircraft noise was the percentage of time that aircraft are audible ("percent of time audible"). See NPS Report at 60. Second, the Park Service determined that an aircraft was audible if it increased the ambient noise level by three decibels, the smallest change perceptible to the human ear. See FAA, U.S. Dep't Transp., Environmental Assessment: Special Flight Rules in the Vicinity of Grand Canyon National Park 4-4 to -5 (1996) [hereinafter "Environmental Assessment"] (adopting Park Service criteria and noting that the three-decibel detectability criterion is "commonly accepted in the acoustics community"). Finally, the Park Service concluded that the key statutory phrase, "substantial restoration of the natural quiet," "requires that 50% or more of the park achieve 'natural quiet' (i.e.,

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[332 U.S.App.D.C. 140] no aircraft audible) for 75-100...

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