Davis Mountains Trans-Pecos Heritage v. U.S.A.F.

Decision Date24 March 2003
Docket NumberNo. 5:01-CV-289-C.,5:01-CV-289-C.
Citation249 F.Supp.2d 763
PartiesDAVIS MOUNTAINS TRANS-PECOS HERITAGE ASSOCIATION, et al., Plaintiffs, v. UNITED STATES AIR FORCE, et al., Defendants.
CourtU.S. District Court — Northern District of Texas

Susan B. Biggs, U.S. Attorney's Office, San Antonio, TX, John R. Parker, U.S. Attorney's Office, Dallas, TX, for Defendants.

Murray D. Feldman, B Newal Squyres, Holland & Hart, Boise, ID, Matt D. Matzner, William J. Wade, Crenshaw Dupree & Milam, Lubbock, TX, for Plaintiffs.

MEMORANDUM OPINION AND ORDER

CUMMINGS, District Judge.

On this date the Court considered Plaintiffs' (DMTPHA) Motion for Summary Judgment filed on October 17, 2002, by Davis Mountains Trans-Pecos Heritage Association, et al. ("Plaintiffs"). The United States Air Force, et al. ("Defendants") filed Defendants' Response to Plaintiffs' Motion for Summary Judgment on December 18, 2002. On January 17, 2003, Plaintiffs filed Plaintiffs' Reply in Support of Its Motion for Summary Judgment. After considering all the relevant arguments and evidence, the Court DENIES Plaintiffs' Motion for Summary Judgment.

On this date the Court concurrently considered Defendants' Motion to Strike Extra-Record Declarations and Materials Attached to Plaintiffs' Motion for Summary Judgment filed December 18, 2002. Plaintiffs' Response and Brief in Opposition to Defendants' Motion to Strike Extra-Record Declarations and Materials Attached to Plaintiffs' Motion for Summary Judgment was filed on January 17, 2003. Defendants filed no reply. After considering all the relevant arguments and evidence, the Court GRANTS Defendants' Motion to Strike Extra-Record Declarations and Materials Attached to Plaintiffs' Motion for Summary Judgment.

On this date the Court concurrently considered Plaintiffs' Motion and Brief in Support of Motion to Strike Defendants' Post Hoc Declarations of Bowles, Cormier, Skujins, and Fidell filed January 17, 2003. Defendants filed no response. After considering all the relevant arguments and evidence, the Court GRANTS Plaintiffs' Motion to Strike Defendants' Post Hoc Declarations of Bowles, Cormier, Skujins, and Fidell.

On this date the Court concurrently considered Defendants' Cross-Motion for Summary Judgment filed December 18, 2002. Plaintiffs' Response to Defendants' Cross Motion for Summary Judgment was untimely filed on January 17, 2003. Defendants filed no reply. After considering all the relevant arguments and evidence, the Court GRANTS Defendants' Cross-Motion for Summary Judgment.

I. FACTUAL BACKGROUND
A. Parties

Plaintiff Davis Mountains Trans-Pecos Heritage Association (individually "DMTPHA") is a non-profit association incorporated in Texas and is a regional chapter of the Trans Texas Heritage Association. DMTPHA's principal office is located in Alpine, Brewster County, Texas. The members of DMTPHA represent over 13 million acres of privately owned land in the region.

DMTPHA properties include land located in Brewster, Culberson, Hudspeth, Jeff Davis, Pecos, Presidio, and Reeves Counties. These properties are used for ranching, agriculture, personal residences, tourism and hunting operations, commercial cattle operations, and various modes of recreational enjoyment of the land. The properties also include structures of historic significance and represent several generations of family holdings.

Dale and Susan Toone; Tim and Rexann Leary; Earl and Sylvia Baker; Mark and Ann Daugherty; Dick R. Holland; J.P. Bryan; Jackson B. "Ben" Love, Jr.; and Kaare J. Remme (collectively "Individual Plaintiffs") are landowners or business operators situated in Brewster, Hudspeth, Pecos, and Reeves Counties in far west Texas. Individual Plaintiffs collectively own and control vast acres of land which are used for, inter alia, ranching, quail hunting, farming, and eco-tourism. In addition, two of the Individual Plaintiffs operate small private aircraft utilizing private takeoff and landing strips on their respective properties to conduct unscheduled overflights of their land.

DMTPHA representatives and Individual Plaintiffs participated in the review process of proposals for the Final Environmental Impact Statement ("FEIS"). DMTPHA and Individual Plaintiffs submitted oral and written comments as part of this review process.

Defendants include the United States Air Force, the United States Department of Defense, the United States Secretary of the Department of Defense, and various individual United States military personnel sued in their official capacities.

B. Final Environmental Impact Statement

In January 2000 Defendants made public the FEIS which had been prepared to assist Defendants in determining whether to implement the Realistic Bomber Training Initiative ("RBTI"). Of the four alternatives evaluated by the FEIS to fulfill the purpose of the RBTI, Defendants elected to implement Alternative B. The RBTI's purpose is to establish a set of linked training assets (1) to permit aircrews from Barksdale Air Force Base ("AFB") and

Dyess AFB to train for various missions while maximizing combat training time; (2) to provide linkage of airspace and other assets that support realistic training of bomber aircrews; and (3) to ensure flexibility and variability in the training of support bomber combat missions.

The four RBTI alternatives consisted of

Alternative A No Action;

Alternative B Instrument Route (IR)-178/Lancer Military Operations Area (MOA), 85 percent existing airspace;

Alternative C IR-178/Texon MOA, 80 percent existing airspace;

Alternative D IR-153/Mt. Dora MOA, 90 percent existing airspace.

Under Alternative A, Defendants' bombers would continue to use existing airspace and existing Electronic Scoring Sites ("ESS") at current levels. Alternatives B, C, and D each involve (1) changes in the structure and use of the airspace, including some additional airspace and some eliminated airspace; (2) decommissioning the ESS at both Harrison, Arkansas, and La Junta, Colorado; and (3) construction of ten new electronic threat emitter sites and two ESS. Alternatives B and C lie almost wholly in western Texas, while Alternative D is located in northeastern New Mexico.

Defendants admit that aircraft noise levels would increase 2-13 decibels ("dB") in Alternatives B and C airspace and 1-18 dB in Alternative D airspace. The percentage of "highly annoyed" persons could rise under Alternative B, IR-178, by eight percent, and Defendants concede that increases in noise levels from RBTI aircraft could be perceived by some as affecting their quality of life.

Defendants also acknowledge that Alternatives B and C would necessitate overflights of two special use land management areas (e.g., state parks, scenic rivers) but point out that Alternative D would necessitate overflights of thirteen such areas. Both Alternatives B and C would cause a potential disturbance of the aplomado [lead-colored] falcon historic range where eleven sightings of aplomado falcons have occurred since 1992, but Mexican spotted owls and bald eagles, both federally listed as threatened or endangered species, are found within Alternative D's airspace.

Defendants admit that the current minimum altitude for segment BC of IR-178 is 400 feet above ground level ("AGL") and the current minimum altitude for segment AB of IR-178 is 1,000 feet AGL. Defendants admit that the current minimum altitude for segment JK of IR-178 is 200 feet AGL but specifically note that the minimum altitude for segment JK of IR-178 under Alternative B will be raised to 300 feet AGL. Defendants also acknowledge that the minimum altitude for segment IJ of IR-178 under Alternative B will be 300 feet AGL.

C. Record of Decision

After considering the FEIS and the environmental consequences involved with each of the above alternatives, together with public comments and agency input, Defendants signed the Record of Decision ("ROD") for the RBTI on March 24, 2000, and elected to implement Alternative B. Defendants assert that they selected Alternative B because the proposed RBTI operational and training assets located within approximately 600 nautical miles of Alternative B's Barksdale and Dyess AFBs would include the following:

1. A Military Training Route ("MTR") that

(a) offers variable terrain for use in terrain-following and terrain-avoidance training flights;

(b) overlies lands capable of supporting electronic threat emitters and ESS that permit flights down to 200 feet AGL; and

(c) links to a MOA.

2. A MOA measuring at least 40×80 nautical miles with a floor of 3,000 feet AGL and extending to 18,000 feet above mean sea level ("MSL") used for avoiding simulated threats and simulated attacks.

3. An Air Traffic Control Assigned Area ("ATCAA") above the MOA at 18,000 to 40,000 feet MSL to be used for high-altitude training.

4. Availability of, through lease or purchase, a set of five locations (15 acres each) under or near the MTR corridor, and an additional five locations (15 acres each) under or near the MOA, for placing electronic threat emitters that would simulate the variety of realistic threats expected in combat.

5. Two ESS which would be co-located with operations and maintenance centers, one under or near the MTR corridor and the other en route from the AFBs to the MTR and MOA, each to be constructed on leased, purchased, or Air Force-owned property.

Defendants' ROD also confirmed the decommissioning of two existing ESS located in Harrison, Arkansas, and La Junta, Colorado. Defendants contend that these existing sites do not provide the required operational training assets outlined in 1-3 above.

Defendants have also presented mitigation measures designed to reduce the potential for adverse effects to citizens and resources, including, but not limited to

1. reevaluating the potential impact of the RBTI on the aplomado falcon habitat 2. considering construction alternatives in...

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