Township of Delhi v. McArtor

• Decision Date: 05 October 1988
• Docket Number: Civ. No. C-1-88-841.
• Citation: 696 F. Supp. 1157
• Parties: TOWNSHIP OF DELHI, a Political Subdivision of the State of Ohio, and Oak Hills Local School District, a Political Subdivision of the State of Ohio, Plaintiffs, v. T. Allan McARTOR, In His Official Capacity as Administrator of the Federal Aviation Administration, John M. Dempsey, In His Official Capacity as Manager of the Memphis Airports District Office of the Federal Aviation Administration, and Kenton County Airport Board, a Political Subdivision of the Commonwealth of Kentucky, Defendants.
• Court: U.S. District Court — Southern District of Ohio

696 F. Supp. 1157

TOWNSHIP OF DELHI, a Political Subdivision of the State of Ohio, and Oak Hills Local School District, a Political Subdivision of the State of Ohio, Plaintiffs, v. T. Allan McARTOR, In His Official Capacity as Administrator of the Federal Aviation Administration, John M. Dempsey, In His Official Capacity as Manager of the Memphis Airports District Office of the Federal Aviation Administration, and Kenton County Airport Board, a Political Subdivision of the Commonwealth of Kentucky, Defendants.

Civ. No. C-1-88-841.

United States District Court, S.D. Ohio, W.D.

October 5, 1988.

Christopher Bechhold, Cincinnati, Ohio, Steven Pflaum, Chicago, Ill., for plaintiffs.

Wilbert Zeigler, Covington, Ky., David Shuey, Washington, D.C., Michael Gatzke, Carlsbad, Cal., for defendants.

ORDER

CARL B. RUBIN, Chief Judge.

This matter is before the Court following oral argument on October 3, 1988 and the submission of evidence. On October 1, 1988 the Court met with counsel on the premises of the Greater Cincinnati International Airport, received instruction as to airport operation at the control tower and was flown with counsel by helicopter over the location of a proposed runway and that portion of Delhi Township affected by its use.

Plaintiffs seek to enjoin Defendants from signing a contract to level and grade the ground upon which the runway will be built. Pursuant to Rule 52, Fed.R.Civ.P., the Court does set forth herewith its Findings of Fact, Opinion and Conclusions of Law.

I. FINDINGS OF FACT

1. The Greater Cincinnati International Airport (Airport) is located in Boone County, Kentucky, south of City of Cincinnati. It has occupied that location for over forty years. The airport currently consists of three runways, a north/south runway identified as 18/36¹ and two east/west runways identified as 27L/9R and 27R/9L. The airport is served by twelve carriers and acts as a hub for Delta Airlines.

2. In February, 1988, the Kenton County Airport Board ("Airport Board") which operates the Airport requested permission to construct a new runway approximately 10,000 feet in length to be known as 18L/36R. Upon such construction existing runway 18/36 will be identified as 18R/36L. Prior to such determination the Airport Board had commissioned a study known as "Environmental Assessment For Construction of Runway 18L/37R" (Plaintiffs' Ex. 15)².

3. Approval by the Federal Aviation Administration (FAA) was subsequently received together with a grant of $36,620,088 to assist in the construction of such runway. The Airport Board has advertised for bids and is prepared to award a contract for the leveling and grading of the runway site at this time. A Temporary Restraining Order issued by this Court on September 26, 1988 prevented the awarding of such contract until after October 3, 1988. The runway in question will be constructed in stages and it is currently contemplated that it will be available for use in November of 1990.

4. Plaintiffs Delhi Township and the Oak Hills Local School District are each political subdivisions of the State of Ohio and are located to the north of the airport. Airplanes taking off from Runway 36 and landing on Runway 18 fly over portions of such subdivisions. Airplanes landing on proposed runway 18L would likewise descend over Delhi Township, but in an area that is currently more populated. Takeoffs from proposed runway 36R would likewise ascend over the Delhi Township area. The proposed runway would terminate on the north several miles south of the Ohio River and the populated area of Delhi Township³.

5. To mitigate noise over Delhi Township the Defendants propose that only Stage III aircraft will use the proposed runway and that all take-offs on existing runway 36 would turn left at the Ohio River and follow its course westwardly while gaining altitude. As a result of these limitations no portion of Delhi Township will be subjected to noise levels above 65 LDN⁴.

6. Jet aircraft currently in use are referred to as Stage II airplanes. They include planes manufactured by McDonnell Douglas and known as DC8, DC9, DC10; planes manufactured by Boeing Aircraft and known as 707, 727, and 737; and a plane manufactured by Lockheed known as L1011. These planes are in the process of replacement by newer and quieter airplanes known as Stage III aircraft. They include, by way of example, the MD80, constructed by McDonnell Douglas and the 757 and 767, constructed by Boeing.

II. OPINION

There is a threshold issue of whether this Court possesses the requisite subject matter jurisdiction to entertain this matter. The Plaintiff's complaint purports to state twenty-seven separate claims for injunctive relief against the Defendants under the National Environmental Policy Act of 1969 ("NEPA") (42 U.S.C. § 4321 et seq.) and two such claims under the National Historic Preservation Act ("NHPA") (16 U.S.C. § 470 et seq.) with respect to the proposed runway.

The NEPA requires that if an agency of the United States government undertakes a project that will affect the environment it must determine if its proposed action may "significantly affect" the environment, 42 U.S.C. § 4321. The agency must initially prepare an environment assessment of the action known as an "EA." Based upon the determinations of the EA, the agency must issue either; (1) an Environmental Impact Statement ("EIS"), which is a detailed statement on the environmental impact of the proposed action and how it significantly affects the environment, or (2) a Finding of No Significant Impact ("FONSI"), which determines that its proposed action will not significantly affect the environment. Crounse Corp. v. ICC, 781 F.2d 1176 (6th Cir.1986), 42 U.S.C. § 4332(2)(c), 40 C.F.R. § 1501.4b-c.

In preparation of the proposed runway the Defendant FAA conducted an Environmental Assessment and prepared it under the NEPA. This EA was then circulated and subsequently a Final Environmental Assessment was issued. Thereafter, a Finding of No Significant Impact was determined. (Defts.Ex. A). The FONSI states on page three:

When the FAA received the request for federal grant funding, a decision was made to prepare an environmental assessment of sufficient detail such that it could be processed as either an Environmental Impact Statement (EIS) or a Finding of No Significant Impact (FONSI) depending upon the significance of the impact identified during the study.

Defendants assert that based upon this FONSI a final order was issued by the agency which is appealable only to United States Court of Appeals for the Sixth Circuit pursuant to 49 U.S.C.App. § 1486(a), (d). Accordingly Defendants assert that this Court lacks the requisite subject matter jurisdiction to hear this matter in controversy.

49 U.S.C.App. § 1486(a) states in pertinent part:

(A) Any order, affirmative or negative, issued by the Board or Secretary of Transportation under this chapter; ... shall, be subject to review by the Courts of Appeals of the United States....

This statute further states in subsection (d):

Upon transmittal of the petition to the Board or Secretary of Transportation, the Court shall have exclusive jurisdiction to affirm, modify, or set aside this order complained of.... (emphasis added)

The United States Court of Appeals for the Sixth Circuit has not yet considered this question, but at least four other courts have held that exclusive appellate jurisdiction resides in such Courts of Appeal. C.A. R.E. v. Federal Aviation Administration, 844 F.2d 1569 (11th Cir.1988); Suburban O'Hare Com'n v. Dole, 787 F.2d 186 (7th Cir.1986), affirming 603 F.Supp. 1013 (N.D.Ill.1985); City of Alexandria v. Helms, 728 F.2d 643 (4th Cir.1984); State of New York v. FAA, 712 F.2d 806 (2d Cir.1983).

Initially, and in opposition, Plaintiffs' contend that the FONSI is not a final appealable order because the Defendant FAA did not take the requisite "hard look" at the environmental consequences of its decisions under Crounse, supra. However, the FAA not only issued an EA, but also a subsequent final EA. Nevertheless, for purposes of review under 49 U.S.C.App. § 1486 the term "order" should receive a liberal construction, State of New York v. FAA, supra at 808; Sima Products Corp. v. McLucas, 612 F.2d 309, 312 (7th Cir. 1980), cert. denied 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980). Furthermore, the existence of a reviewable administrative record is the determinative element in defining an FAA decision as an "order" for purposes of § 1486, City of Alexandria, 728 F.2d at 646; Suburban O'Hare Com'n., 787 F.2d at 193.

This Court further notes that in Crounse it was held that an agency decision, based upon an EA that no EIS was required, can be overturned only if it is arbitrary, capricious, or an abuse of discretion, supra at 1193; See also Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C.Cir. 1983). This Court may not substitute its judgment of the environmental impact for that judgment of the agency. id. Furthermore a final order is one which imposes an obligation, denies a right, or fixes some type of legal relationship. Chicago & Southern Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 112-113, 68 S.Ct. 431, 436-37, 92 L.Ed. 568 (1948). Accordingly, this Court finds that Plaintiffs' argument is not well taken.

Plaintiffs further argue that this action does not arise under Chapter 20 of the Federal Aviation Act. Conversely, Defendants submit that by its terms 49 U.S.C.App. § 1486 applies to decisions made by the FAA under Chapter 20 of Title 49 of the United States Code (49 U.S.C.App. §§ 1301-1557) (Chapter 20). Chapter 20 is the Federal Aviation Act of 1958 as amended by subsequent and later acts of Congress. Defendants further submit that the FAA does have statutory responsibilities which appear at places other than the Chapter 20 of Title 49. While the exclusive jurisdiction provisions of 49 U.S.C.App. § 1486 do not apply directly to actions of the FAA or the...