Custer County Action Assoc. v. Garvey, No. 99-9543

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBRORBY
Citation256 F.3d 1024
Parties(10th Cir. 2001) CUSTER COUNTY ACTION ASSOCIATION; NATIONAL AIRSPACE COALITION; OPEN SPACE ALLIANCE; THE WILDERNESS SOCIETY; BOARD OF DIRECTORS OF MOFFAT CONSOLIDATED SCHOOL DISTRICT NO. 2; CUSTER COUNTY AIRPORT AUTHORITY; FREMONT COUNTY AIRPORT; THE BOARD OF THE TOWN OF CRESTONE; THE BOARD OF COUNTY COMMISSIONERS OF CUSTER COUNTY; THE BOARD OF COUNTY COMMISSIONERS OF FREMONT COUNTY, COLORADO; THE BOARD OF COUNTY COMMISSIONERS OF SAGUACHE COUNTY, COLORADO; THE SPIRITUAL LIFE INSTITUTE; LA VETA PEACE OF AIR ALLIANCE; CRESTONE MOFFAT BUSINESS ASSOCIATION; HUERFANO VALLEY CITIZENS ALLIANCE; RURAL ALLIANCE FOR MILITARY ACCOUNTABILITY; WOLF SPRINGS RANCHES, INC.; THE HISTORIC PINES RANCH; CUSTER COUNTY BISON; KAREN G. WORONOFF; DAVID S. WORONOFF, Petitioners, v. JANE F. GARVEY, as Administrator of the FEDERAL AVIATION ADMINISTRATION; and UNITED STATES AIR FORCE MAJOR GENERAL PAUL A. WEAVER, Jr., as Director of the AIR NATIONAL GUARD, Respondents
Docket NumberNo. 99-9543
Decision Date19 July 2001

Page 1024

256 F.3d 1024 (10th Cir. 2001)
CUSTER COUNTY ACTION ASSOCIATION; NATIONAL AIRSPACE COALITION; OPEN SPACE ALLIANCE; THE WILDERNESS SOCIETY; BOARD OF DIRECTORS OF MOFFAT CONSOLIDATED SCHOOL DISTRICT NO. 2; CUSTER COUNTY AIRPORT AUTHORITY; FREMONT COUNTY AIRPORT; THE BOARD OF THE TOWN OF CRESTONE; THE BOARD OF COUNTY COMMISSIONERS OF CUSTER COUNTY; THE BOARD OF COUNTY COMMISSIONERS OF FREMONT COUNTY, COLORADO; THE BOARD OF COUNTY COMMISSIONERS OF SAGUACHE COUNTY, COLORADO; THE SPIRITUAL LIFE INSTITUTE; LA VETA PEACE OF AIR ALLIANCE; CRESTONE MOFFAT BUSINESS ASSOCIATION; HUERFANO VALLEY CITIZENS ALLIANCE; RURAL ALLIANCE FOR MILITARY ACCOUNTABILITY; WOLF SPRINGS RANCHES, INC.; THE HISTORIC PINES RANCH; CUSTER COUNTY BISON; KAREN G. WORONOFF; DAVID S. WORONOFF, Petitioners,
v.
JANE F. GARVEY, as Administrator of the FEDERAL AVIATION ADMINISTRATION; and UNITED STATES AIR FORCE MAJOR GENERAL PAUL A. WEAVER, Jr., as Director of the AIR NATIONAL GUARD, Respondents.
No. 99-9543
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 19, 2001

Appeal from the Federal Aviation Administration and the Air National Guard

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Brian B. O'Neill (Michael A. Ponto, Elizabeth H. Schmiesing, and Michael D. Beach of Faegre & Benson LLP, Minneapolis, Minnesota; and Colin C. Deihl of Faegre & Benson LLP, Denver, Colorado, with him on the briefs) of Faegre & Benson LLP, Minneapolis, Minnesota, for Petitioners.

Ronald M. Spritzer (Lois J. Schiffer, Assistant Attorney General; M. Alice Thurston, Department of Justice; Hans I.E. Bjornson, Federal Aviation Administration; and Randy Chambers, National Guard Bureau, with him on the brief), Department of Justice, Washington, D.C., for Respondents.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and BROWN,* District Judge.

BRORBY, Senior Circuit Judge.

Petitioners ask us to reverse the Federal Aviation Administration's (FAA) and Air National Guard's (ANG) orders approving the Colorado Airspace Initiative (Initiative) and finding adequate the Final Environmental Impact Statement on the Initiative. They claim the orders approving the Initiative and the underlying environmental impact analysis violate the Federal Aviation Act, 49 U.S.C. 40103(b)(3), and the National Environmental Policy Act, 42 U.S.C. 4321 - 4370(e). Petitioners further claim implementation of the Initiative will violate their property rights under the Third and Fifth Amendments to the United States Constitution.

We exercise jurisdiction over the FAA's final order pursuant to 49 U.S.C. 46110. National Parks & Conservation Ass'n v. Federal Aviation Admin., 998 F.2d 1523, 1528-29 (10th Cir. 1993) supports extending our review to the ANG's decision and final environmental impact statement as incorporated into the FAA's final decision. Having carefully reviewed the administrative record,1 and for the reasons

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set forth below, we deny the Petition for Review.

BACKGROUND

This dispute was triggered by the Colorado Airspace Initiative proposed special use airspace changes to the National Airspace System designed to: (1) provide the necessary airspace for the 140th Tactical Fighter Wing of the Colorado ANG to be able to train with the F-16 fighter jet under realistic conditions; and (2) respond to changes in commercial aircraft arrival and departure corridors required for operation of Denver International Airport.

The Colorado ANG is under the command and control of the Governor of Colorado and is also a reserve component of the United States Air Force. ANG units have increased as a percentage of the total military force and thus have assumed a more prominent role in our national defense. For example, the 140th Air Wing has assisted in Operation Northern Watch, enforcing the no-fly zone in northern Iraq, Operation Southern Watch, enforcing the no-fly zone in southern Iraq, and in operation Coronet Night Hawk, intercepting drug runners from Colombia. The Air Force provides the F-16 fighter and other weapon systems to the ANG. Those systems must be maintained and utilized pursuant to Air Force and Department of Defense regulations. 32 U.S.C. 701, et seq. The ANG's need for frequent, realistic training exercises using these systems is obvious.

ANG pilots utilize three types of airspace in conducting their training exercises: Military Training Routes (MTRs),2 Military Operations Areas (MOAs),3 and Restricted Areas (RAs).4 As finally approved, the Initiative involved a total of fourteen modifications to MTR and MOA airspace in Colorado. The FAA groups these modifications into four actions:

1. Kit Carson MOA This has been renamed the Cheyenne MOA. It retains roughly the same dimensions as the Kit Carson MOA, except that the FAA directed that the western boundary be shortened approximately 10 nautical miles in order to accommodate new approaches to the Denver International Airport. The minimum flying altitude was raised from 100 feet to 300 feet above ground level.

2. Pinon Canyon MOA and Two Buttes MOA This is the most significant change found in the [Initiative]. While the Pinon Canyon MOA was already in existence, the Two Buttes MOA is new. The Two Buttes MOA abuts the eastern edge of the Pinon Canyon MOA to create one large MOA. The Two

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Buttes MOA is large enough to handle F-16 fighters engaged in air-to-air combat training missions. The Pinon Canyon MOA is used primarily for close-air-support training.

3. Fremont MOA This MOA was divided into three parts, named the Airburst A, B, and C MOAs. The original MOA was enlarged at some points and reduced at others. The modifications allow more realistic training opportunities for aircraft utilizing the existing Airburst range. That portion of the Airburst MOA that leads to the Airburst Range has a minimum altitude of 500 ft. above ground level .... The minimum altitude of the rest of Airburst MOA will remain the same as when it was the Fremont MOA, 1,500 ft. [above ground level].

4. MTRs into, out of, and through MOAs All other airspace modifications within the [Initiative] address how aircraft are to get to and from the MOAs listed above. The previous MTRs had no minimum altitude restrictions. Under the [Initiative], all MTRs will be raised to either 300 feet or 500 feet above ground level. A number of MTRs were narrowed by the FAA as part of its environmental mitigation.

According to the FAA,

[t]he remaining MOA, La Veta, is unchanged from its previous use, except the FAA deleted a small portion for the benefit of the Fremont County Airport. Although some of the [Initiative] airspace is charted down to 300 feet above ground level, that airspace will not be flown lower than 500 feet [above ground level] 'expect [sic] in national emergencies or [for] special training requirements.'"

The ANG issued its record of decision adopting the above-referenced changes, identified as the "preferred alternative" in the Final Environmental Impact Statement, in October 1997. 62 Fed. Reg. 60487 (Nov. 10 1997). In October 1999, the FAA issued a final order (1) adopting the Final Environmental Impact Statement the ANG prepared on the Initiative, and (2) directing that the requested Special Use Airspace changes to the National Airspace System identified as the preferred alternative in the Final Environmental Impact Statement be implemented. 64 Fed. Reg. 54721 (Oct. 7, 1999). Petitioners filed their Joint Petition for Review of the ANG and FAA orders in November 1999.

STANDARD OF REVIEW

The Administrative Procedure Act, 5 U.S.C. 706, governs our review of the ANG's5 and FAA's final decisions. See Arapahoe County Pub. Airport Auth. v. Federal Aviation Admin., 242 F.3d 1213, 1218 (10th Cir. 2001). We will set aside an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A).6 In determining whether an agency's decision is arbitrary or capricious, we "must consider whether the decision was based on a consideration of the relevant

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factors and whether there has been a clear error of judgment. This inquiry must be searching and careful, but the ultimate standard of review is a narrow one." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (quotation marks and citation omitted).

The agencies' findings of fact are conclusive if supported by substantial evidence. 49 U.S.C. 46110(c); see also Wyoming Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000). The substantial-evidence standard does not allow us to displace the agencies' "'choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'" Arapahoe County Pub. Airport Auth., 242 F.3d at 1218 (quoting Wyoming Farm Bureau Fed'n, 199 F.3d at 1231).

We review Petitioners' constitutional claims de novo. See Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).

ANALYSIS

Petitioners raise an indiscriminate number of statutory and constitutional challenges to the ANG and FAA decisions approving the Initiative. First, they claim the FAA violated the Federal Aviation Act, 49 U.S.C. 40103(b)(3)(A), FAA regulations and the Administrative Procedure Act

by implementing the [Initiative]: (a) without determining whether the Initiative is necessary in the interest of national defense; (b) without record evidence to support such a conclusion; (c) in the face of substantial evidence that the Initiative is not necessary in the interest of national defense; (d) without accurate information with which it could determine whether the ANG has been using the minimum amount of airspace necessary; and by unlawfully delegating its authority to set minimum altitudes of flight to the military[.]

Second, Petitioners claim the ANG and FAA violated the National Environmental Policy Act, 42 U.S.C. 4321 et...

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161 practice notes
  • Wyoming v. U.S. Dept. of Agri., No. 01-CV-860B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • July 14, 2003
    ...to discuss the cumulative impacts of its proposed action in the EIS. 40 C.F.R. § 1508.25(a)(2); Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001). In turn, NEPA regulations define a cumulative impact as "the impact on the environment which results from the incrementa......
  • Wyoming v. U.S. Dept. of Agriculture, No. 07-CV-17-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • August 12, 2008
    ...to discuss the cumulative impacts of its proposed action in the EIS. 40 C.F.R. § 1508.25(a)(2); Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001). In turn, NEPA regulations define a cumulative impact as "the impact on the environment which results from the incrementa......
  • Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, No. 14-9610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 22, 2016
    ...initially in the reviewing court.”) (internal alteration, quotation marks, and citations omitted); Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001) (“Judicial review of an agency decision is generally limited to review of the administrative record.”). Consistent......
  • Ky. Coal Ass'n, Inc. v. Tenn. Valley Auth., CIVIL ACTION NO. 4:14CV-00073-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • February 2, 2015
    ...of activity is used as a benchmark.'" Tennessee Environmental Council, 2014 WL 3810740, *7 (quoting Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001) (internal citations omitted)). In fact, the CEQ regulations "require the analysis of the no action alternative even i......
  • Request a trial to view additional results
159 cases
  • Wyoming v. U.S. Dept. of Agri., No. 01-CV-860B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • July 14, 2003
    ...to discuss the cumulative impacts of its proposed action in the EIS. 40 C.F.R. § 1508.25(a)(2); Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001). In turn, NEPA regulations define a cumulative impact as "the impact on the environment which results from the incrementa......
  • Wyoming v. U.S. Dept. of Agriculture, No. 07-CV-17-B.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • August 12, 2008
    ...to discuss the cumulative impacts of its proposed action in the EIS. 40 C.F.R. § 1508.25(a)(2); Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001). In turn, NEPA regulations define a cumulative impact as "the impact on the environment which results from the incrementa......
  • Zen Magnets, LLC v. Consumer Prod. Safety Comm'n, No. 14-9610
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 22, 2016
    ...initially in the reviewing court.”) (internal alteration, quotation marks, and citations omitted); Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001) (“Judicial review of an agency decision is generally limited to review of the administrative record.”). Consistent......
  • Ky. Coal Ass'n, Inc. v. Tenn. Valley Auth., CIVIL ACTION NO. 4:14CV-00073-JHM
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • February 2, 2015
    ...of activity is used as a benchmark.'" Tennessee Environmental Council, 2014 WL 3810740, *7 (quoting Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001) (internal citations omitted)). In fact, the CEQ regulations "require the analysis of the no action alternative even i......
  • Request a trial to view additional results
1 books & journal articles
  • NEPA's Trajectory: Our Waning Environmental Charter From Nixon to Trump?
    • United States
    • Environmental Law Reporter Nbr. 50-5, May 2020
    • May 1, 2020
    ...input. See Fuel Safe Wash. v. Federal Energy Regulatory Comm’n, 389 F.3d 1313, 1323 (10th Cir. 2004); Custer Cty. Action Ass’n v. Garvey, 256 F.3d 1024, 1035, 31 ELR 20804 (10th Cir. 2001). 50 ELR 10416 ENVIRONMENTAL LAW REPORTER 5-2020 Copyright © 2020 Environmental Law Institute®, Washing......

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