Life of the Land v. Brinegar
| Decision Date | 16 October 1973 |
| Docket Number | No. 73-1784.,73-1784. |
| Parties | LIFE OF THE LAND et al., Appellants, v. Claude S. BRINEGAR, Individually and in his capacity as Secretary of the United States Department of Transportation, et al., Appellees, and Kalihi-Palama Community Council et al., Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
COPYRIGHT MATERIAL OMITTED
Michael R. Sherwood (argued), Brook Hart (argued), William S. Hunt, of Hart, Sherwood, Leavitt, Blanchfield & Hall, Honolulu, Hawaii, for appellants.
Warren H. Higa, Dep. Atty. Gen. (argued), Honolulu, Hawaii, Peter R. Steenland (argued), Carl Strass (argued), Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, Dept. of Justice, Washington, D. C., George Pai, Atty. Gen., Harold M. Fong, U. S. Atty., William C. McCorriston, Asst. U. S. Atty., Honolulu, Hawaii, for appellees.
George Playdon (argued), Tobias C. Tolzmann (argued), Honolulu, Hawaii, for intervenor.
Shearer, Lanctot, Thomas, Knorp, San Francisco, Cal., for National Audubon Society, Inc.; Gifford, Woody, Carter & Hays, New York City, for amicus curiae.
Before HAMLIN and TRASK, Circuit Judges, and BELLONI, District Judge*.
INTRODUCTION
This environmental law case is an appeal from the Final Decision and Order of the United States District Court for the District of Hawaii, holding that appellees have complied with the provisions of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., and the Airport and Airways Development Act of 1970 (AADA), 49 U.S.C. §§ 1701 et seq., and denying appellants' prayer for a permanent injunction sought against the Secretary of Transportation and other officials in connection with the construction of the reef runway extension (Reef Runway project) at the Honolulu, Hawaii, International Airport (HIA).
We affirm, concluding that appellees have satisfied the provisions of both NEPA and AADA.
Appellants, plaintiffs below, are four environmental organizations1 purportedly "concerned with the preservation of our natural environment," and four named individual residents of areas affected by flight patterns of aircraft arriving and departing from HIA. Appellants all claim to suffer adverse and irreparable injuries as a result of specific and allegedly illegal acts committed by appellees.2
Appellees, defendants below, are the Secretary of Transportation,3 as the federal official ultimately responsible for federal involvement in the Reef Runway project; two named individual administrators of the Federal Aviation Agency said to have been contributors to the Secretary's alleged malfeasance or non-feasance; and the director of the Hawaii Department of Transportation, as the state official ultimately responsible for prosecution of the project.
Permitted to intervene as defendants below were the Dillingham Corporation, the contractor which has been awarded the construction contract on the proposed project; two named individuals who reside in areas affected by overflights to HIA, and the Kalihi-Palama Community Council, Honolulu, representing other residents of those areas.
On November 8, 1972, one day before the scheduled opening of bids for construction of the Reef Runway project, this action for injunctive relief was filed by appellants in the United States District Court for the District of Hawaii. Upon said filing, the district court issued a Temporary Restraining Order.
A hearing on appellants' motion for a preliminary injunction was held from December 13, 1972, to December 22, 1972. On the latter date, the district court denied the prayer for a preliminary injunction and dissolved the Temporary Restraining Order previously entered.
On March 29, 1973, trial was held on the merits, at which time the evidence of the previous hearing was incorporated as if adduced at that time. Additional testimony was also presented.
On April 13, 1973, the district court filed its Final Order and Decision, denying appellants' prayer for a permanent injunction. The district court also denied appellants' motion for an injunction pending appeal.4
After filing a timely notice of appeal, appellants on April 27, 1973, sought an injunction pending appeal to this court. On June 11, 1973, after oral argument, we granted that motion. On August 7, 1973, we heard oral argument on the merits, and the case was submitted for decision.
There was evidence before the district court supporting the following statement of facts.
Hawaii is approximately 2,400 miles from the continental United States. Over 99 per cent of all passengers travel to and from Hawaii by aircraft, and the Honolulu International Airport has consequently assumed the status of that state's principal gateway. Further, due to its unique location, HIA is the third largest point of entry for international arrivals in the United States. During labor disputes involving marine transport, HIA takes on special importance, as aircraft become the sole means of shipping and receiving cargo.
HIA serves not only the personal and commercial interests of Hawaii and the nation, but is also vital to the military. With the closing of adjacent Hickam Air Field, the United States Air Force engages in substantial operations at HIA. Of the over 250,000 operations (a landing or take-off) at the airport in fiscal 1971, military operations accounted for 52,221, with 113,701 commercial operations, and 89,992 for general aviation.5
HIA is presently operating at capacity levels during peak hours. Forecasts indicate that the number of aircraft operations will increase to 382,000 by 1975, at which time HIA is expected to reach and surpass both hourly and annual capacity levels, and to 493,000 by 1985.
Accompanying projected increases in aircraft operations at HIA has been an increasingly disturbing problem of aircraft noise pollution. This noise problem, which first appeared in substantial form with the introduction of jet aircraft around 1960, is accentuated because of the airport's location in close proximity to densely populated residential areas, and to downtown business sections. Further, the prevailing trade winds, which affect aircraft landings and take-offs, complicate the problem.
Increasing operations by jet aircraft have also enhanced the danger of a disaster in the event of a landing or take-off accident. There is evidence that jet aircraft mishaps most often occur within forty seconds after take-off, or about 1.6 miles from the end of the runway. In the case of HIA's present configuration, this would place the aircraft in the midst of the Kalihi-Palama residential neighborhood.
In 1961 or 1962, public concern encouraged investigations of potential solutions, including that of simply moving the jet aircraft seaward, away from human habitation.
In 1962, subsequent to the State Legislature's passage of a resolution reflecting official concern for HIA's noise problem, the state authorized preparation of a report on means to alleviate the problems concomitant with the introduction of jet aircraft at HIA. This early study resulted in the recommendation of the construction of a "Seaward Jet Runway," a proposal which was, however, never implemented because its unfavorable alignment with prevailing winds made it too hazardous to use.
In 1967, consultants were authorized by state officials to prepare a plan for future development of HIA. These consultants recommended the construction of a runway to be located 1,300 feet south and parallel to the existing runway. This plan was in turn submitted to a citizens' Task Force committee, appointed by the Governor of Hawaii. Committee members included responsible local, state and federal officials, and members of the general public. Beginning in February, 1967, and continuing through April, 1970, the Task Force committee met monthly on some 46 or 47 occasions to consider various aspects of the runway construction proposals. These meetings were for the most part open to the public, and publicized in the news media. Included in these discussions were considerations of possible alternatives to, and environmental effects of, the proposed new runway.
The Task Force committee's work culminated in a June, 1968, recommendation that there be constructed what is essentially the project here at issue — a new 12,000 foot long runway on filled reefland, located 6,700 feet south of the existing runway. Such a runway would largely eliminate the spectre of a disastrous aircraft accident in a populated residential area, and would also reduce noise pollution by moving it more than a mile away.
In September, 1968, airline representatives to the Task Force committee commissioned their own study, which concluded that the proposed runway was unnecessary, and that the noise problem could be effectively alleviated with an extension of the existing runway, and the construction of a shorter runway for inter-island traffic. After review and discussion, the Task Force committee in January, 1970, concluded that the airline proposal provided insufficient benefits to justify a change from the plan of the Reef Runway concept. The final recommendation of the Task Force committee in favor of the Reef Runway was approved by the Governor of Hawaii in February, 1970.
In order to fund the project, the state applied to the Federal Aviation Agency for a matching 50-50 grant pursuant to the Airport and Airways Development Act of 1970, 49 U.S.C. § 1701 et seq. In compliance with that statute, a hearing was held on the proposed Reef Runway in Honolulu on March 22, 1971. Life of the Land and the Hawaii Audubon Society, two of the appellants herein, appeared at the hearing, urging consideration of measures to protect a rare water bird endangered by the proposed project.
The Federal Aviation Agency and the State of Hawaii are presently committed to the...
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