City of Aurora v. Hunt, 84-1018
| Decision Date | 12 December 1984 |
| Docket Number | No. 84-1018,84-1018 |
| Citation | 749 F.2d 1457,21 ERC 2132 |
| Parties | The CITY OF AURORA, a municipal corporation of the State of Colorado; and Paul E. Tauer, a resident and Mayor Pro Tem of the City of Aurora, Petitioners, v. Kenneth S. HUNT, Director of Flight Operations, Federal Aviation Administration; David E. Jones, Manager of Air Traffic Division, Federal Aviation Administration; Walter A. Barbo, Manager, Denver Airports District Office, Federal Aviation Administration; Charles R. Foster, Director Northwest Mountain Region, Federal Aviation Administration; J. Lynn Helms, Administrator, Federal Aviation Administration; and Elizabeth Dole, Secretary, United States Department of Transportation, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Gregory J. Hobbs, Jr., Denver, Colo. (Zach C. Miller, Denver, Colo., with him on brief; Patrick Kowaleski, City Atty., and Charles H. Richardson, Deputy City Atty., Aurora, Colo., also with him on brief), of Davis, Graham & Stubbs, Denver, Colo., for petitioners.
Peter R. Steenland, Jr., Washington, D.C. (Wendy B. Jacobs, Washington, D.C., with him on the brief; Richard W. Danforth, F.A.A., Washington, D.C., and Daniel Peterson and Hays V. Hettinger, Regional Counsel, F.A.A., Seattle, Wash., also with him on brief), for respondents.
Before MCKAY, LOGAN and SEYMOUR, Circuit Judges.
The City of Aurora, Colorado and its mayor (hereinafter referred to collectively as the City) petition for review of a final rule of the Federal Aviation Administration implementing a new approach procedure at Stapleton International Airport, Denver, Colorado. The FAA planned to implement the procedure on January 19, 1984, but we stayed implementation pending this decision. The City claims that the FAA has deviated from its own safety rules in violation of the Administrative Procedure Act, and has failed to comply with the National Environmental Policy Act. 1 We are not persuaded, and accordingly we deny the City's petition.
Stapleton is the nation's fifth busiest airport. It provides service for Denver and is a "hub" airport for connecting flights to the Rocky Mountain area and points further west. Stapleton is also the nation's second worst airport for weather-related delays that affect air service both to and from Denver and to other cities nationwide.
The delays occur primarily because of the alignment and location of the airport's four major runways. Runways 35R and 35L are aligned in a north/south direction, are parallel to each other, and are separated by 1,600 feet. Runways 26R and 26L are aligned in an east/west direction, are parallel to each other, and are 900 feet apart. When good weather prevails, simultaneous landings can be made on parallel runways. When the cloud cover drops below 2,200 feet, however, pilots are no longer able to land visually but must rely on signals from ground-based electronic instruments that guide their approach until their aircrafts emerge from the clouds. Because pilots are effectively blind while in the clouds, the sole means of determining the proper direction, slope, and speed for the approach are the signals received from the ground instruments and the radio communications from air traffic control. During such instrument approaches, the FAA requires a separation between aircraft of at least 4,300 feet. Because neither pair of runways at Stapleton is separated by 4,300 feet, instrument landings can be conducted on only one parallel runway at a time. During weather that requires instrument landing approaches, the arrival rate at Stapleton is thus cut in half, with concomitant delays.
In response to this problem, in 1980 the FAA established a committee consisting in part of representatives from the FAA, the Air Transport Association, the Air Line Pilots Association, and Denver's Director of Aviation. From among various alternatives, the committee opted to devise a new approach procedure centered on runways 35R and 35L, the parallel runways with the greatest separation between them. Under the proposed procedure, aircraft would continue to land on runway 35L using a straight-in approach, and aircraft would also be permitted to land simultaneously on the parallel runway 35R using an offset or angled approach.
The offset approach for runway 35R is known in the industry as an LDA/DME approach 2 procedure, and is conducted as follows. Arriving aircraft are given directions (or vectors) by air traffic control personnel to a point about fifteen miles southeast of the airport. At that point, the aircraft is turned toward the airport to receive and follow radio signals from a navigational approach aid known as a localizer. The localizer directs the aircraft on a compass heading of 341 degrees toward a point southeast of the extended centerline of runway 35R called the "missed approach point." The missed approach point is about three nautical miles south of runway 35R. Following the localizer and using its DME, the aircraft must have the runway or runway lights in sight by the missed approach point. Furthermore, weather conditions must be such that the pilot can conduct the remaining three miles of the approach visually without further reliance on the instrument guidance devices. Unless both of these conditions occur, the landing is discontinued. If visual conditions do exist, the pilot continues his approach and lands on runway 35R.
The advantage of the proposed procedure is that it maintains a separation of at least 4,300 feet between simultaneously approaching aircraft during the entire time the aircraft are guided by the ground-based instrument guidance devices. At the point when both aircraft are turned to their final approach, they are separated by at least 10,000 feet. At the missed approach point, when visual meteorological conditions must exist, the two aircraft are still more than 4,300 feet apart. Moreover, because runway 35L commences a mile south of 35R, aircraft approaching 35L are lower than those simultaneously bound for 35R. Thus, when an aircraft landing on runway 35L passes over that runway's threshold, it is separated laterally from the aircraft landing on 35R by 2,500 feet. The aircraft landing on 35R continues to descend for another mile on the 341 degree heading, makes a ten degree turn to a 351 degree heading, and proceeds to land on runway 35R.
The procedure will be implemented only on those occasions when a north wind requires using runway 35R for landing, 3 and when the weather conditions permit visual contact with the runway or runway lights at the missed approach point (three miles visibility and clouds no lower than one thousand feet above the ground). If weather conditions are worse, the approach cannot be used. If conditions are better but north approaches are still required because of wind, aircraft can land on 35R under normal visual approach procedures, without the need for localizer and DME guidance.
The offset approach was first published as a final rule in May 1983. See FAA Standard Instrument Approach Procedures, 48 Fed.Reg. 24,036 (1983). Because the FAA had failed to provide notice and opportunity for public comment before publishing the rule, it cancelled the rule and republished it as a proposed rule in July 1983. See 48 Fed.Reg. at 33,838. After considering substantial public comment and other newly-obtained information about the proposed rule, the FAA again published the procedure as a final rule in December 1983. See 48 Fed.Reg. at 56,344. This lawsuit followed.
The City claims that the FAA's promulgation of the new procedure violates the Administrative Procedure Act. 5 U.S.C. Secs. 551 et seq. (1982) (APA). When reviewing agency action under the APA, a court must "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...." Id. Sec. 706(2)(A).
The City contends that the FAA's promulgation of the proposed procedure is not in accordance with law because the FAA procedure violates its own safety rules, specifically the United States Standard for Terminal Instrument Procedures (Pet. Ex. 64, hereinafter cited as TERPS). 4 The City argues that the TERPS are rules that bind agency discretion, see, e.g., Nader v. NRC, 513 F.2d 1045, 1051 (D.C.Cir.1975); Bonita, Inc. v. Wirtz, 369 F.2d 208, 212 n. 4 (D.C.Cir.1966), and that the promulgation of the proposed procedure violates these rules. The new offset approach varies from at least two substantive TERPS paragraphs.
The handbook permits the FAA to waive or amend TERPS requirements under certain circumstances. The City argues that the FAA has failed to follow the TERPS procedures for effecting a waiver. Paragraph 141 of the TERPS provides:
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