Allison v. Department of Transp., 89-1721
| Decision Date | 03 August 1990 |
| Docket Number | No. 89-1721,89-1721 |
| Citation | 908 F.2d 1024 |
| Parties | , 20 Envtl. L. Rep. 21,239 John W. ALLISON, Jr., et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, et al., Respondents, City and County of Denver, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of Orders of the Department of Transportation, FAA.
Joel W. Cantrick, Denver, Colo., for petitioners.
Peter R. Steenland, Jr., Atty., Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., Robert L. Klarquist, Atty., Dept. of Justice, Washington, D.C., Diane R. Liff, Bethesda, Md., Asst. General Counsel, Dept. of Transp., and Gregory S. Walden and Richard W. Danforth, Attys F.A.A., Washington, D.C., were on the brief, for respondents.
Michael M. Conway, with whom Michael Schneiderman and Steven A. Levy, Chicago, Ill., were on the brief, for intervenors. John H. Spellman and Robert P. Fletcher, Washington, D.C., also entered appearances for intervenors.
Before MIKVA, BUCKLEY and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge BUCKLEY.
This case concerns the Federal Aviation Administration's approval of a major new facility to replace Denver's Stapleton International Airport. Petitioners challenge the FAA's determination that the noise generated by the new airport would not constitute the "use" of a nearby state park and wildlife refuge under section 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 303 (1982 & Supp. V 1987). Although we find that the FAA erred by using inappropriate guidelines for measuring the effects of noise, we conclude that its determination that no use will be made of the refuge is nonetheless supported by substantial evidence. We also reject petitioners' various other claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. Secs. 4321-4347 (1982 & Supp. V 1987), and the Airport and Airway Improvement Act ("AAIA"), 49 U.S.C. App. Secs. 2201-2227 (1982 & Supp. V 1987). We therefore deny the petition for review.
Stapleton International Airport, which is owned and operated by the City and County of Denver, is among the busiest airports in the country. For some time now, Stapleton has served as a hub airport for two major airlines and, more generally, as a major connecting point in the national air transportation system. Stapleton, however, has been considered inadequate in three respects: capacity, delays associated with its runway configuration, and noise resulting from the airport's location in an area surrounded by substantial residential and commercial development. In response to these problems, Denver has proposed the construction of a major new airport approximately thirteen miles northeast of Stapleton, to be followed by the permanent closure of Stapleton. The FAA has approved this proposal, granted Denver $60 million for the project, and agreed to take various other actions to assist the city in completing the airport. A brief history of the proposal and the FAA's approval follows.
In 1978, the Denver Regional Council of Governments undertook a study of potential sites for a new airport. In 1983, the Council recommended that Stapleton be expanded onto the Rocky Mountain Arsenal, a military reservation that adjoins Stapleton to the north. This recommendation encountered strong opposition from the public, particularly the citizens of communities adjacent to Stapleton and in western Adams County. In addition, the presence of hazardous waste contamination at the Arsenal gave rise to serious questions over the feasibility of this option.
Following another study in 1984, Denver identified a preferred site for the new airport in Adams County about thirteen miles northeast of Stapleton. Its findings were confirmed by a third study completed two years later. Denver and Adams County signed an intergovernmental agreement in April 1988 that authorized Denver to annex the land required for the airport. The following month, the citizens of Adams County approved the annexation; and one year later, Denver voters approved the proposed airport by nearly a two-to-one margin.
Meanwhile, in April 1988, Denver circulated a draft environmental assessment for public review. Following a series of public hearings and the consideration of comments, Denver issued a two-volume final environmental assessment in November 1988. See City and County of Denver, New Denver Airport Environmental Assessment (Nov. 1988) ("Denver EA"). The FAA provided Denver with guidance and oversight as to the content and accuracy of the information contained in the draft and final assessments and assured that the study was coordinated with appropriate local, state, and federal agencies.
At the same time, as required by NEPA, 42 U.S.C. Sec. 4332(2)(C), and the AAIA, 49 U.S.C. App. Sec. 2208(b)(5), the FAA began work on its own study. In April 1988, the FAA published a notice of intent to prepare an environmental impact statement ("EIS"), and in June it held a meeting to receive the views of interested state, local, and federal agencies regarding the subjects and issues to be addressed in the EIS. 53 Fed.Reg. 15,481 (1988).
A draft EIS was released for comment on February 10, 1989. On March 15 the FAA conducted an open public hearing at which approximately forty-five speakers presented comments. Thereafter, the FAA extended the comment period twice and, predictably, received voluminous written comments on the draft EIS. Following various revisions, the FAA issued its Final Environmental Impact Statement ("FEIS") on August 8, 1989, and a notice of its availability was published on August 25. See U.S. Dep't of Transp., Final Environmental Impact Statement, New Denver Airport (Aug.1989); EIS Availability, 54 Fed.Reg. 35,388 (1989). In brief, this document addresses the purposes of and need for a new airport, examines possible alternatives to Denver's proposal, and weighs the environmental consequences of the project. It also responds to the oral and written comments received on the draft EIS.
On September 27, 1989, the Regional Administrator of the FAA's Northwest Mountain Region issued a Record of Decision ("ROD") pursuant to the AAIA, 49 U.S.C. App. Sec. 2208, granting federal approval to the proposed airport and directing that various actions be taken by the FAA, such as the establishment of air traffic control procedures and a grant to Denver to help fund the project. U.S. Dep't of Transp., Record of Decision for the New Denver Airport (Sept.1989). On the same day the ROD was signed, the FAA granted Denver the $60 million.
Petitioners in this case are individuals who live in the community of Van Aire, a "residential airpark" development consisting of houses, aircraft hangars, taxiways, and a runway, located about five miles north of the site selected for the new airport. It appears that Van Aire will be unable to continue to operate as an airpark when the airport is completed. Petitioners now seek review of the FEIS, the ROD, and the grant pursuant to the Federal Aviation Act, 49 U.S.C. App. Sec. 1486(a). They raise various challenges under section 4(f) of the Department of Transportation Act, NEPA, and the AAIA. In Part II-A we discuss the section 4(f) issue. In Part II-B we briefly address petitioners' remaining claims.
Section 4(f) declares it to be national policy that "special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites." 49 U.S.C. Sec. 303(a). To that end, the section provides as follows:
The Secretary [of Transportation] may approve a transportation program or project ... requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance ... only if--
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge ... resulting from the use.
Id. Sec. 303(c) (emphasis added).
In the FEIS and the ROD, the FAA found that the new airport would "not involve the use of any" lands protected by section 4(f). FEIS at 5.36; ROD at 17-18. The FAA's discussion focused on Barr Lake State Park, a nearby recreational park and wildlife refuge, which the FAA identified as the only major recreational facility near the proposed airport. FEIS at 5.36.
Barr Lake State Park comprises 691 acres of land and a 1,900-acre man-made lake located several miles northeast of the new airport site. At the north end of the lake, sailboats, rowboats, and boats with electric trolling motors are permitted. The southern portion of the park is dedicated to its role as a wildlife refuge that is of particular interest to birders, who make use of its network of trails, boardwalks, viewing platforms, and observation blinds. See J. Perry & J. Perry, The Sierra Club Guide to the Natural Areas of Colorado and Utah 136-37 (1985). The park is a nesting place for at least one pair of bald eagles and is widely known for its waterfowl. Petitioners do not dispute that Barr Lake is the only land to which section 4(f) potentially applies.
In explaining its finding, the FAA stated, first, that "[n]oise impacts at the park from operation of the proposed new airport have been shown to be well below the level of significance according to Federal guidelines," FEIS at 5.36, and second, that the "expected noise levels from the new airport are not significantly different than those experienced from operations at Stapleton." FEIS at 10.153. The FAA concluded that the anticipated noise impacts would not constitute a " 'taking or use of' " Barr Lake State Park and, accordingly, that section 4(f) would not be applicable. FEIS at 5.36. The FAA did not...
To continue reading
Request your trial
-
City of Olmsted Falls, Oh v. F.A.A.
...4(f) includes not only actual, physical takings of such lands but also significant adverse indirect impacts as well." Allison v. DOT, 908 F.2d 1024, 1028 (D.C.Cir.1990). The City alleges that the "massive filling" and culverting of Abram Creek would seriously damage the creek's "use as a.........
-
Defenders of Wildlife v. Babbitt
...adequately address the cumulative impacts of all actions that affect the pronghorn. Defendants argue, citing Allison v. Department of Transportation, 908 F.2d 1024 (D.C.Cir. 1990), that they are not required to the impacts of actions that are not related to or dependent on the proposed acti......
-
Union Neighbors United, Inc. v. Jewell
...would suffice. Although an agency “need not examine an infinite number of alternatives in infinite detail,” Allison v. Dep't of Transp. , 908 F.2d 1024, 1031 (D.C. Cir. 1990), examining a reasonable alternative that could potentially take fewer bats than Buckeye's plan would “inform both th......
-
Citizens Against Burlington, Inc. v. Busey, 90-1373
...the agency must discuss, and the extent to which it must discuss them," Alaska v. Andrus, 580 F.2d at 475; see Allison v. Department of Transp., 908 F.2d 1024, 1031 (D.C.Cir.1990). It follows that the agency thus bears the responsibility for defining at the outset the objectives of an actio......