Barnes v. United States Dep't of Transp., No. 10–70718.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.
• Citation: 2011 Daily Journal D.A.R. 12993,11 Cal. Daily Op. Serv. 10901,655 F.3d 1124,73 ERC 1033
• Parties: Michelle BARNES, an individual; Patrick Conry, an individual; Blaine Ackley, Petitioners,Port of Portland, Intervenor,v.UNITED STATES DEPARTMENT OF TRANSPORTATION; Ray Lahood, Secretary of Transportation; Federal Aviation Administration; J. Randolph Babbitt, Administrator, Federal Aviation Administration; Donna Taylor, Regional Administrator, Federal Aviation Administration, Northwest–Mountain Region; Carol Suomi, District Manager, Federal Aviation Administration Seattle Airports District; Cayla Morgan, Environmental Specialist, Federal Aviation Administration Seattle Airports District, Respondents.
• Docket Number: No. 10–70718.
• Decision Date: 25 August 2011

655 F.3d 1124
73 ERC 1033
11 Cal. Daily Op. Serv. 10,901
2011 Daily Journal D.A.R. 12,993

Michelle BARNES, an individual; Patrick Conry, an individual; Blaine Ackley, Petitioners,Port of Portland, Intervenor,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION; Ray Lahood, Secretary of Transportation; Federal Aviation Administration; J. Randolph Babbitt, Administrator, Federal Aviation Administration; Donna Taylor, Regional Administrator, Federal Aviation Administration, Northwest–Mountain Region; Carol Suomi, District Manager, Federal Aviation Administration Seattle Airports District; Cayla Morgan, Environmental Specialist, Federal Aviation Administration Seattle Airports District, Respondents.

No. 10–70718.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 2011.Filed Aug. 25, 2011.

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Sean T. Malone and Andrew J. Orahoske, for the petitioners.Ignacia S. Moreno, Assistant Attorney General; Hans Bjornson and Patricia A. Deem, the Federal Aviation Administration; David C. Shilton and Michael T. Gray, United States Department of Justice, Environment and Natural Resources Division, for the respondents.Beth S. Ginsberg, Rita V. Latsinova, and Jason T. Morgan, Stoel Rives LLP, for the intervenor.On Petition for Review of an Order of the Federal Aviation Administration.Before: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.Opinion by Judge B. FLETCHER; Dissent by Judge IKUTA.OPINION B. FLETCHER, Circuit Judge:

Petitioners Michelle Barnes, Patrick Conry, and Blaine Ackley (collectively, “petitioners”) challenge an order of the Federal Aviation Administration (“FAA”) concerning the proposed construction by the Port of Portland (“the Port”) of a new runway at Hillsboro Airport (“HIO”). The FAA issued a Finding of No Significant Impact (“FONSI”), thus relieving the agency of preparing an Environmental Impact Statement (“EIS”). Petitioners argue that the decision not to prepare an EIS was unreasonable for several reasons, chief among them the FAA's failure to consider the environmental impacts of any increased demand for HIO resulting from the addition of a runway. Petitioners also argue that the FAA did not afford them a public hearing within the meaning of 49 U.S.C. § 47106.

We have jurisdiction pursuant to 49 U.S.C. § 46110. We grant the petition and remand.

BACKGROUND I. The Hillsboro Airport

HIO is located in the city of Hillsboro in Washington County, Oregon, 12 miles west

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of downtown Portland. The Port of Portland assumed ownership of HIO in 1966. In 2008, HIO become Oregon's busiest airport, surpassing Portland International Airport (PDX) in number of airport operations.¹

HIO's increasingly important role in the Portland metropolitan area and the Oregon state system of airports is the result of its serving all three segments of the air transportation industry: commercial air carriers, military, and general aviation (GA). Commercial air carrier is broadly defined as any domestic or foreign aircraft carrying passenger or cargo for hire. HIO accommodates a broad range of commercial air carriers, including scheduled air carrier activity using aircraft with nine or fewer passenger seats; air cargo carriers using aircraft with a payload capacity less than 7,500 pounds; on-demand air carriers using aircraft with 30 or fewer passenger seats and a payload capacity of less than 7,500 pounds; and commuter operations with non-turbojet aircraft with nine or fewer passenger seats and a payload capacity of less then 7,500 pounds.² HIO also accommodates local and transient operations by military rotorcraft and occasionally military jet aircraft. Finally, GA is defined as all aviation other than military and commercial airlines. It includes a diverse range of activities such as pilot training, sightseeing, personal flying, agricultural spraying and seeding, fractional business jet operations,³ and emergency medical services. Seventy percent of the hours flown by general aviation are for business purposes.

HIO's role is defined within both state and federal aviation plans. HIO is designated as a reliever airport in FAA's National Plan of Integrated Airport Systems (NPIAS). Reliever airports are specially designated to reduce congestion at large commercial service airports by segregating GA aircraft from commercial airlines and air cargo activities. HIO is classified as a reliever for PDX. At the state level, the Oregon Aviation Plan prepared by the Oregon Department of Aviation (ODA) classifies HIO as a Category 2, Business or High Activity General Aviation Airport. Neither the NPIAS nor the Oregon Aviation Plan anticipate HIO changing from a GA airport to a commercial service airport in the future.

II. Hillsboro Airport Master Plan

In 2005, the Port of Portland undertook the HIO Master Plan to “forecast future aviation demand, and to plan for the timely development of new or expanded facilities that may be required to meet that demand” through the year 2025. The Master Plan states that HIO is “the most capable” GA airport out of the 23 public-use airports in the Portland–Vancouver metropolitan area, only one of which, PDX, is a commercial service airport.

In its current configuration, HIO has two intersecting runways, an airport traffic control tower, and an instrument landing system. The primary runway is 6,600 feet long and 150 feet wide (the longest runway at all GA airports in the area), and serves the mix of large business jet aircraft and GA aircraft which use HIO. The precision instrument approach is aligned with this primary runway. The second runway is a cross-wind runway 4,049 feet long and 100 feet wide, which serves primarily small GA

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aircraft. In addition, HIO has three taxiways parallel with the runways and three helicopter take-off sites (or helipads). Two of the helipads are located at the end of each runway and the third, the Charlie helipad, is located parallel to the primary runway. Due to its capabilities—which cannot be readily replicated without significant capital investments—HIO has evolved as the primary GA airport in the Portland–Vancouver metropolitan area.

HIO's significant role in the region is reflected in its annual service volume (“ASV”). ASV is one dimension of airfield capacity and a fundamental tool in airport planning. As used in the HIO Master Plan, ASV represents a “reasonable estimate of the maximum level of aircraft operations that can be accommodated at [an airport] in a year” ⁴ at acceptable levels of service. ASV accounts for differences in airfield characteristics, aircraft mix, weather conditions and demand characteristics (the mix of different types of aircraft operations) that would be encountered over a year's time. ASV is not a ceiling and airports often operate above the ASV. The FAA, however, requires that improvements for airfield capacity purposes be considered when operations reach 60 percent of ASV.⁵ The goal of airfield capacity improvements is to increase ASV to a point where annual operations represent between 60 and 80 percent of ASV.

The HIO Master Plan forecast that the ASV for 2007 would be 169,000, the annual runway operations 166,033, and therefore HIO would operate at 98 percent of ASV. This would result in an average delay of 1.2 minutes, and a total aircraft delay of 3,321 hours a year. By 2010, ASV would increase to 176,000, the annual runway operations would increase to 196,600, and HIO would operate at 112 percent of ASV. The average delay would be 1.9 minutes, and the total aircraft delay 6,200 hours a year. By 2015, ASV would increase to 174,000, the annual runway operations to 214,600, and HIO would operate at 123 percent of ASV. The average delay would be 3.6 minutes, and the total aircraft delay 12,900 hours a year. For 2025, ASV would drop slightly to 171,000, but the annual runway operations would further increase to 249,300, and HIO would operate at 146 percent of ASV. The average delay would be 6 minutes, and the total aircraft delay 24,900 hours a year. Increasing levels of annual delay create undesirable conditions such as increased air emissions, increased operating costs, and extended air traffic patterns.

After analyzing two alternative actions—increasing radar coverage and building additional exit taxiways to the primary runway—the Master Plan concluded that adding a runway for use by small GA aircraft exclusively is “the best means available for reducing delays and the undesirable conditions that occur due to delay.” Adding a new runway would allow HIO to operate at 65 percent of ASV

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in 2012, 69 percent in 2015 and 81 percent in 2025.III. The Proposed Project—Construction of a New Parallel Runway and Related Actions

Following the Master Plan's recommendations, the Port of Portland proposed to construct a new, 3,600–foot–long and 60–foot–wide, runway parallel to the existing primary runway, to construct associated taxiways, relocate the Charlie helipad, and make associated infrastructure improvements. The Port proposed to start the construction of the new runway and associated taxiways in 2010 and complete them by 2011. The relocation of the Charlie helipad would start in 2014 and the relocated helipad would be in operation by 2015. The modifications would be partially funded by FAA grants and would therefore require FAA approval and the preparation of an environmental assessment (“EA”).

The FAA approved and published a Draft Environmental Assessment (“DEA”) prepared by the Port on October 9, 2009.⁶ For its purposes, the FAA approved the use of the HIO Master Plan's demand forecast.⁷ The DEA stated the purpose of the project is “to reduce congestion and delay at HIO in accordance with planning guidelines established by the FAA.” The DEA explained that as congestion and delay increase, HIO's ability to serve as an attractive, safe and efficient reliever for PDX diminishes:

The proposed action is needed because the HIO airfield is...