Paskar v. U.S. Dep't of Transp.

• Decision Date: 22 April 2013
• Docket Number: Docket No. 10–4612–ag.
• Citation: 714 F.3d 90
• Parties: Kenneth D. PASKAR and Friends of LaGuardia Airport, Inc., Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Ray LaHood, Secretary of Transportation; Federal Aviation Administration; and J. Randolph Babbit, Administrator, Federal Aviation Administration, Respondents, City of New York, Intervenor Respondent.
• Court: U.S. Court of Appeals — Second Circuit

714 F.3d 90

Kenneth D. PASKAR and Friends of LaGuardia Airport, Inc., Petitioners,

v.UNITED STATES DEPARTMENT OF TRANSPORTATION; Ray LaHood, Secretary of Transportation; Federal Aviation Administration; and J. Randolph Babbit, Administrator, Federal Aviation Administration, Respondents,City of New York, Intervenor Respondent.

Docket No. 10–4612–ag.

United States Court of Appeals,Second Circuit.

Argued: Jan. 6, 2012.

Decided: April 9, 2013.

Corrected: April 10, 2013.

Corrected: April 12, 2013.

Corrected: April 22, 2013.

Randy M. Mastro, J. Ross Wallin, Gibson, Dunn & Crutcher LLP, New York, New York; Steven M. Taber, Taber Law Group, Irvine, California, for Petitioners.

Robert S. Rivkin, General Counsel, Paul M. Geier, Assistant General Counsel, Joy Park, Trial Attorney, Department of Transportation; Daphne Fuller, Assistant Chief Counsel, Elizabeth Newman, Attorney Advisor, Federal Aviation Administration; Tony West, Assistant Attorney General, Michael Jay Singer, Abby C. Wright, Department of Justice, Washington, D.C., for Respondents.

Michael A. Cardozo (Leonard Koerner, Christopher Gene King, Elizabeth S. Natrella, Amy McCamphill, on the brief), Corporation Counsel of the City of New York, New York, New York, for Intervenor Respondent.

Before: HALL and CHIN, Circuit Judges, and HELLERSTEIN, Senior District Judge.^*

HELLERSTEIN, Senior District Judge:

Petitioners seek review of a letter written by the Federal Aviation Administration (“FAA”) to the City of New York (“City”) on September 2, 2010 (the “Letter”). Petitioners contend the Letter is a “final order” subject to review by this Court. The Letter states that the FAA agrees with an expert panel's finding that the City's plan to reopen a coastal garbage transfer facility in College Point, Queens, would be compatible with safe air operations as long as several recommendations are followed. The facility, the North Shore Marine Transfer Station (“Station”), is 2,206 feet across Flushing Bay from the landing threshold of Runway 31 at LaGuardia Airport and 585 feet perpendicular to its extended centerline. We hold that, because the Letter is not a “final order” for purposes of 49 U.S.C. § 46110(a), we are without jurisdiction to review it. The petition for review is therefore dismissed.

I. Factual Background

LaGuardia Airport is located on the western shore of Flushing Bay, on the side closer to Manhattan. Flushing Bay is a natural habitat for waterfowl, including large birds like gulls who shelter in its wetlands and feed on the fish and shellfish in its tides and mudflats. Since these birds flock and soar, they may present a danger to the aircraft that take off and land at LaGuardia. Thus, over the years the owner of the airport, the Port Authority of New York and New Jersey (“Port Authority”), conducted studies of the habitat of these birds in an effort to control their population and minimize the danger they present to aircraft and the public. In 2000, the Port Authority, with assistance from the U.S. Department of Agriculture's (“USDA”) Wildlife Services, conducted a year-long wildlife hazard assessment, culminating in the creation of a wildlife hazard management plan in 2002. Its studies, continued in the years that followed, and updates and modifications to its plan, were published from time to time. In 2009–2010, again with the assistance of Wildlife Services, the Port Authority conducted another year-long wildlife hazard assessment and issued its report on March 3, 2011, with a number of recommendations to mitigate the effects of wildlife on the airport's operations.

The Port Authority conducted these wildlife hazard assessments pursuant to federal regulations requiring airports holding a federal certificate to “take immediate action to alleviate wildlife hazards wheneverthey are detected.” 14 C.F.R. § 139.337(a), (b). Airports are required to conduct a “wildlife hazard assessment” and submit their report to the FAA when certain triggering events occur, such as multiple wildlife strikes or an engine ingestion of wildlife. The FAA can then order the airport to develop a “wildlife hazard management plan,” to “[p]rovide measures to alleviate or eliminate wildlife hazards to air carrier operations.” 14 C.F.R. § 139.337(d), (e). The plan is required to prioritize wildlife population management, habitat modification, and land use changes, and be reevaluated at least every 12 months. 14 C.F.R. § 139.337(f)(2) and (f)(6). If the FAA determines that the airport is not meeting its obligations and endangering air safety, the FAA can amend, modify, suspend, or revoke the airport's certificate. 49 U.S.C. § 44709(c).

In 2006, the New York City Department of Sanitation issued a Comprehensive Solid Waste Management Plan, to reduce pollution and deal more efficiently and economically with the 50,000 tons of garbage and recyclables that it collects each day. A central part of the plan proposed to reopen four shuttered marine trash-transfer stations on New York City waterways. Garbage would be trucked to the stations and loaded into sealed containers and onto barges for marine transfer to other collection points or final disposal sites. One of these stations is the North Shore Marine Transfer Station in College Point, Queens, on the shore of Flushing Bay, across an inlet from LaGuardia Airport.¹ The City proposed a three-level, fully enclosed facility operating under negative air pressure to contain smells of refuse within the structure and reduce attractions to birds to a minimum. Trash trucks were to drive into the facility through high-speed roll-up doors, dump their loads into watertight, leak-proof containers, and exit through another set of such doors. The sealed and loaded containers were then to be transported via waterway to their destinations.

Upon a determination by the Secretary of Transportation that a proposed structure “may result in an obstruction of the navigable airspace or an interference with air navigation facilities and equipment or the navigable airspace, the Secretary shall conduct an aeronautical study to decide the extent of any adverse impact on the safe and efficient use of the airspace, facilities, or equipment.” 49 U.S.C. § 44718(b). The Secretary has delegated to the FAA the responsibility of conducting such studies, and of determining if the proposed construction or “alteration of an existing structure,” creates a hazard to air navigation. 14 C.F.R. §§ 77.29(a), 77.31(a). In reaching a Hazard or No Hazard determination, seven criteria are considered, including “the impact of a proposed structure ... on aeronautical operations, procedures, and the safety of flight,” “[a]irport traffic capacity,” “[m]inimum obstacle clearance altitudes,” and “the potential effect on ATC radar.” ²14 C.F.R. § 77.29(a).

The proposed North Shore Station was the subject of two FAA-conducted aeronautical studies, in 2006 and 2008. Both resulted in findings of “No Hazard.” On September 18, 2006, after its first study, the FAA determined that the proposed 110–foot–high facility “would have no substantial adverse effect on air navigation” provided it was equipped with the proper lights. The FAA added, however, that while the structure would not be a hazard, its location in LaGuardia's “runway protection zone” was “strongly discouraged in the interest of protecting people and property on the ground.” ³

The Port Authority, the owner of LaGuardia Airport, objected and petitioned the FAA for discretionary review. 14 C.F.R. § 77.37. In response, the City redesigned the proposed Station, lowering its height to 100 feet and moving it out of the runway protection zone. The Port Authority accepted the changes and withdrew its petition for review. Thus, the FAA's determination of No Hazard became final.

The alteration in the City's designs gave rise to a second FAA-conducted aeronautical study. Again, on September 19, 2008, the FAA issued a No Hazard determination, finding that “the structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities,” provided that it was equipped with proper lighting.⁴ The FAA added that if the height of the proposed structure were to exceed 100 feet, that would result in a Hazard determination.

Four months after the second No Hazard determination, U.S. Airways Flight 1549, taking off from LaGuardia Airport, flew into a flock of Canada Geese. The airplane's jet engines ingested several of the geese and stalled at an altitude of less than 3000 feet. The pilot, Capt. Chesley B. Sullenberger, and co-pilot, First Officer Jeffrey B. Skiles, ditched the aircraft on the Hudson River, and all passengers and crew were saved.⁵ In the wake of the incident, on March 4, 2009, Queens County Congressman Gary Ackerman and other members of New York's congressional delegation wrote to FAA Acting Administrator Lynne Osmus, expressing concern that birds might be “eagerly gathering about and circling above” the proposed Station. The FAA responded, assuring that the Station would be safe, as it complied with FAA Advisory Circular 150/5200–33B. The Circular states, “Enclosed waste-handling facilities [that follow certain procedures] generally are compatible with safe airport operations, provided they are not located on airport property or within the Runway Protection Zone.” However, the Congressmen were not assuaged.

In the fall of 2009 Secretary of Transportation Ray LaHood appointed a panel of experts from the FAA, USDA, U.S. Air Force, Port Authority, City, and an independent consulting firm, to “study the impact of the proposed [Station] on safe airport operations at LaGuardia Airport.” ⁶ The blue ribbon panel reviewed current and historical wildlife data and surveys, including a history of bird strikes at LaGuardia Airport. It observed and studied the habits of birds near the proposed Station and at other operational trash transfer...