753 F.2d 120 (D.C. Cir. 1985), 83-1832, Sierra Club v. United States Dept. of Transp.

Docket Nº:83-1832, 83-1877.
Citation:753 F.2d 120
Party Name:SIERRA CLUB, a nonprofit California corporation, Petitioner, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION; the Federal Aviation Administration; Elizabeth Hanford Dole, individually and as Secretary of the U.S. Department of Transportation; J. Lynn Helms, individually and as Administrator of the Federal Aviation Administration; Frontier Airline
Case Date:January 25, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 120

753 F.2d 120 (D.C. Cir. 1985)

SIERRA CLUB, a nonprofit California corporation, Petitioner,

v.

The UNITED STATES DEPARTMENT OF TRANSPORTATION; the Federal

Aviation Administration; Elizabeth Hanford Dole,

individually and as Secretary of the U.S. Department of

Transportation; J. Lynn Helms, individually and as

Administrator of the Federal Aviation Administration;

Frontier Airlines, Inc., a Nevada Corp.; Jackson Hole

Airport Board, an agency organized under the laws of the

State of Wyoming, Respondents.

SIERRA CLUB, a nonprofit California corporation, Petitioner,

v.

The UNITED STATES DEPARTMENT OF TRANSPORTATION; the Federal

Aviation Administration; Elizabeth Hanford Dole,

individually and as Secretary of the U.S. Department of

Transportation; J. Lynn Helms, individually and as

Administrator of the Federal Aviation Administration;

Western Airlines, Inc., a Delaware Corporation; Jackson

Hole Airport Board, an agency organized under the laws of

the State of Wyoming, Respondents.

Nos. 83-1832, 83-1877.

United States Court of Appeals, District of Columbia Circuit

January 25, 1985

Argued May 7, 1984.

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Petitions for Review of Orders of the Federal Aviation administration.

Howard I. Fox, Washington, D.C., for petitioner. H. Anthony Ruckel, Denver, Colo., also entered an appearance for petitioner.

J. Carol Williams, Atty., Dept. of Justice, Washington, D.C., with whom Peter R. Steenland, Jr., Atty., Dept. of Justice, Kenneth N. Weinstein and Debra A. Weiner, Attys., Dept. of Justice, Washington, D.C., were on brief, for federal respondents. Nancy B. Firestone and Martin W. Matzen, Attys., Dept. of Justice, Washington, D.C., also entered appearances for federal respondents.

David N. Brictson, Denver, Colo., and Joseph B. Goldman, Washington, D.C., were on brief, for respondent, Frontier Airlines, Inc.

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Thomas G. Allison, Bradley M. Martin, Seattle, Wash., and Jonathan Blank, Washington, D.C., were on the brief, for respondent, Western Airlines.

J. Michael Morgan, Denver, Colo., was on brief, for respondent, Jackson Hole Airport Board.

Before MIKVA, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

The Federal Aviation Administration ("FAA"), in two orders dated March 22, 1983 and June 23, 1983, Joint Appendix ("J.A.") at 65, 305, amended the operations specifications of Frontier Airlines, Inc., and Western Airlines, Inc. The amending orders granted permanent authorizations to operate Boeing 737 ("B-737") jet airplanes out of Jackson Hole Airport, which is located within the Grand Teton National Park in Wyoming. Frontier and Western are the only major commercial air carriers that schedule flights to and from Jackson Hole Airport. The Airport is operated under a special use permit granted to the Jackson Hole Airport Board by the FAA. Petitioner, Sierra Club, a national conservation organization, incorporated under the laws of the State of California, seeks review of these orders. Respondents are the FAA, the Department of Transportation, the Jackson Hole Airport Board, Frontier Airlines, and Western Airlines. We have consolidated these cases and take jurisdiction under 49 U.S.C. Sec. 1486 (1982).

Sierra Club alleges that the FAA improperly granted the operations amendments without filing an Environmental Impact Statement ("EIS") as required by the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Sec. 4332(2)(C) (1982). Further, Sierra Club complains that the FAA has permitted a "use" of national parkland without considering possible alternatives, a violation of the Transportation Code, 49 U.S.C. Sec. 303(c) (1982). Because we find that the FAA operated well within its discretion in granting the permanent authorization to operate B-737 jet airplanes out of the Airport and that the increased noise levels due to the employment of those airplanes do not constitute a "use" under section 303(c), the decision of the FAA is affirmed.

I.

The Jackson Hole Airport was established by the Town of Jackson in 1939. Before that, there had been a single dirt runway at the location. By 1941, the Airport had established commercial operation with Western Airlines flying DC-3 propeller aircraft. The land on which the Airport is situated and much of the other land in the same valley were donated to the federal government in 1943, and were designated Jackson Hole National Monument. Proclamation No. 2578, 57 Stat. 731 (1943). In 1950 the Jackson Hole National Monument was merged with the adjacent national park to form the Grand Teton National Park. 16 U.S.C. Sec. 406d-1 (1982). As a result, Jackson Hole Airport is now the only airport in this country located within the boundaries of a national park and has regularly scheduled commercial flights. Over a number of years, Congress has appropriated funds for the expansion and improvement of the Airport's facilities. 1

Since 1955 the Airport has been operated under a special use permit executed by the Department of the Interior's National Park Service. The original permit had a twenty-year term, and an option for an additional twenty years was later executed by the Park Service and accepted by the Jackson Hole Airport Board.

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Prior to 1981, the two major commercial airlines serving the Airport--Frontier and Western--used only propeller aircraft to serve Jackson Hole. Private jets, however, frequently flew into the Airport. In 1978, Frontier applied to the FAA for permission to fly B-737 jet airplanes into the park. Frontier was then conducting 1,599 flights per year with Convair 580 ("C-580") aircraft. These flights carried just over 45,000 passengers annually. Pursuant to NEPA, 42 U.S.C. Sec. 4321 et seq. (1982), the FAA prepared an EIS to examine the proposal to use jet aircraft.

The EIS, issued in 1980, detailed the proposed authorization, its impact on the environment, and any possible alternatives or mitigating measures. Final Environmental Impact Statement for Amendment of Operations Specifications Frontier Airlines, Inc., Boeing 737 Service to Jackson, Teton County, Wyoming (Jackson Hole Airport) (Nov. 18, 1980) ("1980 EIS"); J.A. at 377. The EIS was based in part on prior studies of the Airport's impact on the environment by Dr. Sam D. Hakes, Dean of the College of Engineering at the University of Wyoming. His first survey, made in 1975, involved 7,500 to 10,000 individual noise measurements taken at 50 monitoring sites. S. Hakes, J. Steadman & G. Engen, A Noise Level Study on the Snake River in Grand Teton National Park 1 (1975) ("Hakes 1975"); J.A. at 553. The testing involved private jets, commercial propeller aircraft and a special test using a B-737. Id. at 5-7; J.A. at 557-59. The study found that private aircraft caused between "four [and ten] times the number of significant noise intrusions [in much of the park] as do the commercial aircraft." Id. at 65; J.A. at 624. A comparison between C-580 propeller aircraft and an environmentally modified B-737 jet aircraft revealed that those planes were "very comparable ... for noise intrusion when landing." Overall, however, the 737 was found to be "slightly noiser [sic] than the CV580 but substantially quieter than the private jets." Id. at 66; J.A. at 625. The study pointed out though that "[t]he route flown by the B737 was chosen to be the particular route that would cause the greatest intrusion." Id. Noise intrusions, however, could be reduced significantly by having the commercial airplanes take a preferred route. It was concluded that during more than 90% of the year meteorological conditions would permit takeoffs to the south, which "would greatly reduce the noise intrusion in the study area caused by all commercial operations." Id. at 67; J.A. at 626.

In addition to the Hakes 1975 study, the EIS relied on another study by Dr. Hakes completed in 1978. S. Hakes, Noise Study Jackson Hole Airport (Sept. 1978) ("Hakes 1978"); J.A. at 498. This study was designed to measure the noise impact of C-580, B-737, and other aircraft during controlled and uncontrolled routing and to operate as a logical extension of the Hakes 1975 study. Id. at 1, 24; J.A. at 500, 523. The study examined the noise intrusions at eighteen sites, each varying in its level of environmental sensitivity. Id. at 13-14; J.A. at 512-13. Similar to the finding in the Hakes 1975 study, noncommercial flights were found to cause over 75% of the noise intrusions. Id. at 24, 29; J.A. at 523, 528. The comparison between the C-580 and B-737 airplanes again showed that, in terms of noise, the planes were relatively interchangeable as long as landing and takeoffs were made to the south. All in all, Hakes concluded, if correct routes were flown, there would be "little to be gained or lost if either aircraft is used for commercial operations at the Jackson airport." Id. at 40; J.A. at 539. And, since the B-737 has almost twice the seating capacity of the C-580, any increase in noise intrusion attributable to the B-737 could be more than overcome by the smaller number of flights needed to accommodate the same number of passengers. Id. at 41; J.A. at 540.

Using these studies and data concerning each aircraft derived from noise tests conducted by the FAA and the flight manuals and other information from the manufacturer, the agency determined that the Hakes studies were accurate. 1980 EIS at 11-15; J.A. at 398-402. The EIS, like the

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Hakes studies, used a "worst case" scenario to determine environmental impact. In analyzing a situation with an hypothesized 1985 calendar year passenger demand and where all C-580 aircraft would be replaced by B-737s, the EIS concluded that there would be a cumulative increase of approximately 1 Ldn (cumulative day-night sound level in decibles ("dbl")) near the airport and 0.5 Ldn beyond 20,000...

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