Lee v. U.S. Air Force
| Decision Date | 12 January 2004 |
| Docket Number | No. 02-2306.,02-2306. |
| Citation | 354 F.3d 1229 |
| Parties | Charlie LEE; Jean Lee; Don Lee, also known as "Bebo"; Linda Davis; Jimmie Coody; Martha Coody; Bob A. Jones; Elizabeth Jones; Laura Jones; Robert E. Jones, also known as "Bobby"; Patricia Jones; A.S. Elliott, also known as "Tex"; Jannifer Elliott; Dwayne F. Stewart, also known as "Slim"; Alvaree R. Stewart; Innis Lewis; Bryan Prather; Judy J. Prather; Lucy Jane Schafer; Jonna Lou Schafer; Lincoln Permittees' Association, a non-profit organization on behalf of itself and its members; and Otero County Cattleman's Association, a non-profit organization on behalf of itself and its members, Plaintiffs-Appellants, v. UNITED STATES AIR FORCE; F. Whitten Peters, Secretary of the United States Air Force; Brigadier General Lake, Commander, 49th Fighter Wing, Holloman Air Force Base; United States Department of Defense; William S. Cohen, Secretary of Defense, acting for the German Air Force and Colonel Eckard Sowada, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Frank M. Bond (Faith Kalman Reyes with him on the briefs), The Simons Firm, LLP, Santa Fe, NM, for Plaintiffs-Appellants.
Joseph D. Jacobson, Lt. Col., United States Air Force, Arlington, VA (David C. Iglesias, United States Attorney, Albuquerque, NM; Raymond Hamilton, Assistant United States Attorney, Albuquerque, NM; Charles C. Killion, Major, Special Assistant United States Attorney, United States Air Force, Arlington, VA; Kenneth M. Theurer, Major, United States Air Force, Arlington, VA, on the brief), for Defendants-Appellees.
Before TACHA, Chief Circuit Judge, ANDERSON and HENRY, Circuit Judges.
This case involves an environmental law challenge to United States Air Force ("U.S. Air Force") plans to permit the German Air Force to station, for training purposes, thirty fighter aircraft at Holloman Air Force Base ("Holloman"), in addition to the twelve already there. The suit was brought by ranchers and livestock raising associations (referred to collectively as "Appellants") located near Holloman, claiming, among other things, multiple violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-70f, by the U.S. Air Force, the Department of Defense, and various U.S. Air Force and Department officials.1 The district court affirmed the U.S. Air Force's final agency decision on the grounds that it was "neither arbitrary, capricious, nor without reasonable foundation." Lee v. U.S. Air Force, 220 F.Supp.2d 1229, 1249 (D.N.M. 2002).
On appeal, Appellants argue that the U.S. Air Force, in carrying out the procedures required under NEPA to assess the environmental impact of its proposed action, failed to consider reasonable alternatives, failed to assess adequately the potential impact on property values in surrounding areas, used a flawed methodology to analyze noise impacts, used outdated studies to assess livestock impacts, and failed to consider the impact of aerial refueling or the potential secondary effects of aircraft accidents. They further argue that the U.S. Air Force's agreement with the German Federal Ministry of Defense ("German Defense Ministry") to expand German Air Force training at Holloman is invalid because the U.S. Air Force did not follow the procedural requirements imposed by the Case-Zablocki Act, 1 U.S.C. § 112b, for international agreements.
Holloman is located in southern New Mexico, approximately seven miles west of Alamagordo and eighty-five miles northeast of El Paso, Texas. The base is adjacent to the White Sands Missile Range as well as White Sands National Monument. The United States and Germany began negotiations to establish the German Air Force training program at issue here in 1992. Initially, the United States offered to allow the beddown of up to forty-two German Air Force Tornado PA-200 aircraft at Holloman. However, "[d]ue to political considerations and funding limitations, the GAF [(German Air Force)] decided to pursue the program in two stages-Holloman I and Holloman II." Appellants' App. at 336b. In the Holloman I stage, the German Air Force would move twelve Tornados to Holloman, to be followed by thirty additional Tornados in the Holloman II stage.
Before giving final approval to an agreement finalizing these negotiations, the U.S. Air Force analyzed the environmental impact of its proposed action in an environmental assessment ("EA"), issued in February 1993. The EA considered only the impact of Holloman I and concluded that there would be no significant environmental impact. The U.S. Air Force thus issued a finding of no significant environmental impact ("FONSI"), which allowed it to avoid preparing a more detailed environmental impact statement ("EIS").
Subsequently, on May 20, 1994, the U.S. Air Force and the German Defense Ministry signed a Memorandum of Agreement ("Agreement") implementing Holloman I. The Agreement authorized a German Air Force Tactical Training Establishment ("TTE") at Holloman and provided for the beddown of twelve Tornados, accompanied by German Air Force personnel. The twelve Tornados were relocated to Holloman in May 1996.
According to U.S. Air Force documents in the administrative record, the German Air Force identified a need for additional low-altitude flight training after the beddown occurred, in the course of preparing specific Tornado mission training plans. Appellees' Supp.App. at 25. This, in combination with the need to "compensate for increasingly limited access to White Sands Missile Range ... restricted airspace," id., led the U.S. Air Force to consider modifying Holloman's existing military training routes (MTRs) and military operations areas (MOAs) and establishing an oval aerial refueling track. Under its proposal, the U.S. Air Force would convert rarely-used air-launched cruise missile routes into routes for low-altitude (down to 100 feet above ground level) military aircraft training, and establish a new MOA, with operating altitudes as low as 300 feet above ground level, south of the existing MOA area. The U.S. Air Force prepared an EA and issued a FONSI in connection with this proposal in June 1997.
FAA approval of these airspace modifications was pending when, in May 1998, the U.S. Air Force and the German Defense Ministry amended their 1994 Agreement in order to implement the Holloman II stage. The amendments indicated that the German Air Force TTE at Holloman would be expanded through the beddown of thirty additional German Air Force Tornados and a substantial increase in the number of permanent German Air Force training and logistics personnel. Appellants' App. at 344. Under the expansion, Tornado aircrews could participate in five different training courses that would include training in takeoffs and landings, the use of terrain-following radar for low-level navigation on MTRs, air-to-ground training, air-intercept training, and aerial refueling. The amended Agreement indicated that its implementation was subject to a final decision by the U.S. Air Force following completion of the NEPA process. Id.
The U.S. Air Force decided to analyze the environmental impact of the German Air Force TTE expansion by preparing a full EIS. An April 1997 U.S. Air Force document suggests that an EIS was necessary "in order to identify a potential new bombing site" because the Tornado air-to-ground training contemplated by the proposed expansion would increase the number of practice bombings to several thousand per year. Id. at 336b. The EIS considered three options for a new target complex ("NTC") to accommodate the proposed increase in practice bombings. The new NTC, if established, would be used for bombings using inert or subscale munitions while live munitions deliveries would continue to be restricted to the Red Rio Live Drop Target on the White Sands Missile Range. The preferred option was to construct the NTC on the West Otero Mesa portion of McGregor Range. The other options were to construct the NTC on the Tularosa Basin portion of McGregor Range or to use only existing ranges. Because the FAA had not yet approved the airspace modifications assessed in the 1997 EA, the EIS took into account the different impacts that would result depending on whether or not the modifications were implemented. In addition, the EIS considered a no-action alternative, under which the German Air Force TTE expansion would not occur. Appellees' Supp.App. at 45.
The U.S. Air Force solicited public comments on the proposed expansion at public hearings held during the initial EIS scoping process and through written announcements after the draft EIS was released in June 1997. A final EIS was completed in April 1998. On May 29, 1998, the U.S. Air Force gave final approval to the German Air Force TTE expansion and the preferred West Otero Mesa training option in a Record of Decision ("ROD"), explaining that although the no-action alternative would result in the minimum environmental impact, it "would not provide the training, proficiency, and combined action capabilities needed to achieve the military-to-military strategy and goals." Id. at 214. The existing range option would provide only Id. In contrast,
[t]he West Otero Mesa training option provides the maximum training opportunity for both the GAF and the U.S. Air Force. In addition to the greater opportunity for training, this option also provides for the greatest training versatility and efficiency. Finally, NTC construction on the West Otero Mesa will disturb a significantly smaller geographical area compared to the Tularosa Basin training option and will involve a fraction of the cost.
Id. at 213. The ROD described the potential environmental impacts of the decision,...
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