Westside Property Owners v. Schlesinger

Citation597 F.2d 1214
Decision Date07 May 1979
Docket NumberNo. 77-1217,77-1217
Parties, 9 Envtl. L. Rep. 20,432 WESTSIDE PROPERTY OWNERS, an Unincorporated Association consisting of Tal-Wi-Wi Ranches, Inc., Roach and Baker Ranches, Inc., Baker and Roach Sunny Valley Citrus, Inc., Nalbandian Farms, Inc., Smith, Bryan, and Smith, Margaret, Trustees of the Bryan and Margaret Smith Revocable Trust, Mehren, Lawrence (withdrawn) Ashby, Ralph, and Ashby, Grace L. Arakelian, Zeke Arakelian, George and Seitz, John, Plaintiffs-Appellants, v. SCHLESINGER, James R., Sec'y of Defense, McLucas, John L., Sec'y of the Air Force, Gibson, Colonel Boyd E., U. S. Air Force, Commander, Luke Air Force Base; Haeffner, Brig. Gen. Fred A., Wing Commander, Luke Air Force Base, Schmidt, Major Armand, Sq. Com., Second German Air Force of the Federal Republic of West Germany, Brinegar, Claude S., Sec'y of Transportation, and Butterfield, Alexander P., Administrator of the Federal Aviation Admin., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jeremy E. Butler, Phoenix, Ariz., for plaintiffs-appellants.

Peter R. Taft, Asst. Atty. Gen., Washington, D. C., Fransis S. Ainsa, Jr., El Paso, Tex., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before BARNES and CHOY, Circuit Judges, and BARTELS, * District Judge.

CHOY, Circuit Judge.

Plaintiffs below appeal from the district court's judgment rejecting their claims. We affirm.

I. Statement of the Case 1

Luke Air Force Base (Luke), located near Phoenix, Arizona, was established in 1941. Jet aircraft operations began there in 1951. Over the years newly-developed jets have been placed at Luke. Luke has also been the site of training of pilots from our allies' air forces, including West German pilots.

On January 1, 1970, the National Environmental Policy Act (NEPA) went into effect. 42 U.S.C. §§ 4321-4361. Beginning in September of 1974, the Government located F-15 aircraft at Luke. Prior to and during the stationing of the F-15 aircraft at Luke, the Air Force had prepared environmental impact statements (EIS).

Owners of lands near Luke filed suit through their unincorporated association against numerous federal officials involved in Luke operations, 2 challenging the training of German pilots and location of the F-15 at Luke. They sought declaratory, injunctive, monetary, and mandamus relief. Their complaint contained six counts, each of which was rejected by the district court. They appeal as to four counts.

II. Count I: Location of F-15 Aircraft at Luke

Section 102 of NEPA, 42 U.S.C. § 4332, provides in part that

all agencies of the Federal Government shall

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Pursuant to this requirement of an EIS, the Air Force had prepared an EIS dealing with its proposal to locate F-15 aircraft at Luke. Appellants' complaint alleged that the EIS did not satisfy statutory requirements. After extensive written and oral argument, a trial, and personal observations of Luke, the district court held that the Air Force's EIS satisfied statutory requirements. 415 F.Supp. 1298 (D.Ariz.1976). Appellants claim that the district court erred in three major respects. 3

A. Incremental or Total Environmental Effects

Appellants argue that the EIS stated only that the "beddown" of the F-15 at Luke "will not cause any increased adverse environmental effects," but did not discuss the total environmental effect of Luke operations. They claim that the EIS should also discuss the pollution effects of present Luke operations (other than the F-15) so that the cumulative effect of introducing the F-15 to Luke may fully be ascertained.

In County of Suffolk v. Secretary, 562 F.2d 1368 (2d Cir. 1977), Cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978), the Second Circuit noted:

In making such a determination (of whether an EIS contains sufficient information to satisfy § 102(2)(C) of NEPA), a court is governed by the "rule of reason," under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives. (Citations omitted.)

Id. at 1375; See Sierra Club v. Andrus, 581 F.2d 895, 903 (D.C. Cir. 1978), Cert. granted sub nom. Andrus v. Sierra Club, --- U.S. ----, 99 S.Ct. 829, 59 L.Ed.2d 30 (1979). Rather than imposing a per se rule requiring detailed discussion of overall environmental effects, the rule of reason means that the inquiry is whether, and to what degree, discussion of the overall environmental impact of on-going operations is necessary reasonably to set forth sufficient information to enable the decision-maker to consider the environmental factors and to make a reasoned decision. Here the EIS stated that advent of the F-15 would not increase significantly the pollution at Luke. Under the circumstances of this case, the district court did not err in concluding that the EIS was sufficient.

Appellants cite numerous cases they read as requiring very extended discussion of the cumulative and overall effects of the F-15. However, even those cases most helpful to appellants' claim do not indicate that the EIS here was inadequate. For example, in Virginians for Dulles v. Volpe, 541 F.2d 442, 445 (4th Cir. 1976), the Fourth Circuit held that "The vastly expanded use of the (Washington, D.C. area) airports requires an impact statement." Id. at 445 (emphasis added). Similarly, in Illinois ex rel. Scott v. Butterfield, 396 F.Supp. 632 (N.D.Ill.1975), the state of Illinois sued the Federal Aviation Administration and the Civil Aeronautics Board, claiming that expansion of activities at O'Hare International Airport violated NEPA. The court rejected the claim that the expansion was insulated from NEPA "simply because O'Hare International reached its tremendous size prior to enactment of the N.E.P.A." Id. at 640. Noting that plaintiffs challenged the "further Increase in aircraft traffic and operations," the court wrote:

(W)hile no claim would lie which compels the production of an environmental impact statement reviewing the feasibility of maintaining O'Hare as a major commercial international airport in light of its reputation as a significant source of pollution, we believe a claim would lie which compels the production of a statement giving consideration to the environmental effects of activities creating increased operational growth of the Airport.

Id.

Here, there was no significant increase in operations producing a significant increase in pollution that could only be evaluated in the context of very detailed discussion of on-going operations. Indeed, the number of flights at Luke has decreased since introduction of the F-15. In effect, appellants seek to turn the EIS regarding the introduction of the F-15 into an evaluation of maintaining Luke as an air force base at all. Even the authorities relied upon by appellants reject such an attempt.

B. Rationalization

Appellants contend that the preparation of the EIS was only a rationalization for a decision already made by the Government. They argue that NEPA requires that the decision-maker carefully consider the EIS in reaching its decision and that the Air Force's failure to do so here violates NEPA. 4

The district court found that although the initial steps of determining to beddown the F-15 at Luke were taken before preparation of the EIS, the process of decision-making proceeded hand-in-hand with preparation and promulgation of the EIS. 415 F.Supp. at 1300-01. Also, although the Government felt that exigencies of national defense required taking steps to deploy the F-15 prior to final preparation of the EIS, the decision-makers reviewed the EIS before finalizing the F-15 decision. Id. at 1301. Thus, the district court found that the Government considered the EIS in its decision-making. This finding is not clearly erroneous. See Fed.R.Civ.P. 52(a).

C. Consideration of Alternatives

The district court noted that decisions of this court indicated that the statutory requirement of consideration of alternatives did not require consideration of every imaginable alternative. Rather, " 'the EIS need only set forth those alternatives "sufficient to permit a reasoned choice." ' " 415 F.Supp. at 1302, Quoting Life of the Land v. Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), Cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); See Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974). Cognizant of that standard, the district court concluded:

In the instant case, the "hard look" has been taken. The EIS reveals that the Air Force made a good faith presentation of the environmental impact incident to Reasonable alternative courses of action.

415 F.Supp. at 1303.

Appellants contend that this conclusion must be rejected because, in evaluating the alternatives, the EIS did not take into account the overall environmental effect of Luke. We have...

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