U.S. Air Tour Ass'n v. F.A.A.

• Decision Date: 16 August 2002
• Docket Number: No. 00-1212.,No. 00-1201.,00-1201.,00-1212.
• Citation: 298 F.3d 997
• Parties: UNITED STATES AIR TOUR ASSOCIATION, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, et al.,Respondents. Grand Canyon Trust, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

298 F.3d 997

UNITED STATES AIR TOUR ASSOCIATION, et al., Petitioners, v. FEDERAL AVIATION ADMINISTRATION, et al.,Respondents.

Grand Canyon Trust, et al., Intervenors.

No. 00-1201.

No. 00-1212.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2002.

Decided August 16, 2002.

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On Petitions for Review of an Order of the Federal Aviation Administration.

William Davis Thode and Joseph F. Becker argued the cause for petitioners United States Air Tour Association, et al. With them on the briefs was William Perry Pendley. Lorraine B. Halloway and Timothy M. Biddle entered appearances.

Alexander E. Dreier argued the cause for petitioners Grand Canyon Trust, et al. With him on the briefs were Michael L. Kidney, Catherine S. Stetson, Jeffrey C. Nelson, and Robert Wiygul.

Ronald M. Spritzer, Attorney, U.S. Department of Justice, argued the cause for respondents. With him on the brief was Ellen J. Durkee, Attorney.

Michael L. Kidney, Catherine E. Stetson, Alexander E. Dreier, Jeffrey C. Nelson, and Robert Wiygul were on the brief of intervenors Grand Canyon Trust, et al.

Glenn M. Feldman argued the cause and filed the brief for intervenor Hualapai Indian Tribe.

Before: EDWARDS, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

As part of an ongoing effort to reduce aircraft noise in Grand Canyon National Park, the Federal Aviation Administration (FAA) promulgated a rule limiting the number of air tours permitted to fly over the Park. Two groups of petitioners, one led by the United States Air Tour Association and the other by the Grand Canyon Trust, challenge that rule. We reject the challenges brought by the Air Tour Association, but conclude that the challenges brought by the Trust raise issues that require further consideration by the FAA.

I

The history of regulation of aircraft overflights at Grand Canyon National Park is set out in Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455, 460-64 (D.C.Cir.1998) [hereinafter Grand Canyon I]. We recount some of that story here and explain subsequent developments to the extent necessary to give context to the present controversy.

A

In 1987, Congress enacted the National Parks Overflights Act, Pub.L. No. 100-91, 101 Stat. 674 (set out at 16 U.S.C.A. § 1a-1 note). Section 3 of the Act declared that "[n]oise associated with aircraft overflights at the Grand Canyon National Park is causing a significant adverse effect on the natural quiet and experience of the park." Overflights Act § 3(a). To address this problem, Congress required the Secretary of the Interior to submit to the Administrator of the FAA:

recommendations regarding actions necessary for the protection of resources in the Grand Canyon from adverse impacts associated with aircraft overflights. The recommendations shall provide for substantial restoration of the natural quiet and experience of the park and protection of public health and safety from adverse effects associated with aircraft overflights.

Id. § 3(b)(1) (emphasis added). Congress also required the FAA to "prepare and issue a final plan for the management of air traffic in the air space above the Grand Canyon." Id. § 3(b)(2). That plan, the Act declared, "shall ... implement the recommendations of the Secretary without change unless the [FAA] determines that implementing the recommendations would adversely affect aviation safety." Id. Finally, Congress directed the Secretary to submit, within two years of the effective date of the plan, "a report discussing (A) whether the plan has succeeded in substantially restoring the natural quiet in the park; and (B) such other matters, including possible revisions in the plan, as may be of interest." Id. § 3(b)(3).

In response to the Overflights Act, the Secretary of the Interior submitted recommendations to the FAA in December 1987. In May 1988, the FAA implemented those recommendations in the form of Special Federal Aviation Regulation (SFAR) 50-2. See Special Flight Rules in the Vicinity of the Grand Canyon National Park, 53 Fed. Reg. 20,264 (June 2, 1988). The regulation applied to aircraft flying below 14,500 feet and established, inter alia, flight free zones (areas into which aircraft may not fly), minimum altitudes, and other rules constraining flight paths within the Park. It remained in effect through 1997.

On September 12, 1994, the National Park Service (the Park Service or NPS), on behalf of the Secretary of the Interior, submitted the report to Congress required by section 3 of the Overflights Act. See NPS, U.S. Dep't of the Interior, Report on the Effects of Aircraft Overflights on the National Park System (published in 1995) [hereinafter 1994 NPS Report]. In that report, the Park Service made several foundational determinations. First, it decided that the appropriate measure for quantifying aircraft noise was the percentage of time that aircraft are audible. See id. at 60. Second, the Park Service concluded that the key statutory phrase, "substantial restoration of the natural quiet," required that "50% or more of the park achieve `natural quiet' (i.e., no aircraft audible) for 75-100 percent of the day." Id. at 182. Subsequently, the agencies determined that an aircraft was audible at three decibels above the average natural ambient sound level. See FAA, U.S. Dep't of Transp., Environmental Assessment: Special Flight Rules in the Vicinity of Grand Canyon National Park 4-4 to 4-5 (1996) [hereinafter 1996 Environmental Assessment].

Applying these principles, the agencies concluded that, under SFAR 50-2, only 31% of the Park enjoyed "a substantial restoration of natural quiet" — by which they meant that only 31% of the Park experienced natural quiet for at least 75% of the day. Special Flight Rules in the Vicinity of Grand Canyon National Park, 61 Fed.Reg. 69,302, 69,317 (Dec. 31, 1996) [hereinafter 1996 Final Rule].¹ Moreover, the agencies predicted that without revisions to the existing regulations, projected growth in the number of air tours would cause the percentage of the Park enjoying substantial restoration of natural quiet to drop to less than 10% by the year 2010. Id.

On December 31, 1996, the FAA issued a final rule that adopted the definitions contained in the 1994 NPS Report, including the definition of substantial restoration of the natural quiet. See 1996 Final Rule, 61 Fed.Reg. at 69,305-10. Among other things, the 1996 Final Rule also established new flight free zones, instituted flight curfews, and set a cap on the number of aircraft that could fly over the park — although not on the number of flights. See id. at 69,317, 69,332. In addition to the 1996 Final Rule, the FAA proposed two further rules: one to modify flight paths in the Park; the other to require operators to use quieter aircraft. See Proposed Air Tour Routes for the Grand Canyon National Park, 61 Fed.Reg. 69,356 (Dec. 31, 1996); Noise Limitations for Aircraft Operations in the Vicinity of Grand Canyon National Park, 61 Fed.Reg. 69,334 (proposed Dec. 31, 1996). The FAA predicted that the 1996 Final Rule, in conjunction with the two proposed rules, would meet the statutory goal of substantial restoration of the natural quiet by the year 2008. See Noise Limitations for Aircraft Operations, 61 Fed.Reg. at 69,329.

In October 1997, the FAA discovered that it had significantly underestimated the number of tour aircraft operating in the Park, and that as a consequence the 1996 Final Rule would be less effective than it had thought. See Special Flight Rules in the Vicinity of Grand Canyon National Park, 62 Fed.Reg. 58,898, 58,899 (Oct. 31, 1997). After oral argument in Grand Canyon I, the FAA informed the court that it was considering placing a cap on the number of flights, in addition to the 1996 Final Rule's cap on the number of aircraft. See Grand Canyon I, 154 F.3d at 464.

B

In Grand Canyon I, several groups of petitioners challenged provisions of the 1996 Final Rule. The principal challenges came, as they do here, from a group of air tour operators (the Air Tour Coalition) that included members of petitioner Air Tour Association, and from a group of environmental organizations led by petitioner Grand Canyon Trust. The air tour operators argued that the rule did "too much, too soon," while the Trust argued that it did "too little, too late." Grand Canyon I, 154 F.3d at 459-60. We upheld the rule against both challenges.

In the course of our decision, we affirmed — against challenges from both the Coalition and the Trust — the Park Service's definition of "substantial restoration of the natural quiet" as "50% or more of the park achiev[ing] `natural quiet' (i.e., no aircraft audible) for 75-100 percent of the day." That definition, we said, was a reasonable construction of an ambiguous statutory phrase. Id. at 466-67 (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 841-43, 104 S.Ct. 2778, 2780-82, 81 L.Ed.2d 694 (1984)). We also upheld as reasonable the agencies' three-decibels-above-ambient measure of audibility, and we rejected the Air Tour Coalition's contention that the agencies had ignored their statutory obligation to consider the actual experience of Park visitors. Id. at 465-67, 469. We did not need to decide whether there was such a statutory obligation, because it was clear that the agencies' definition and audibility measure were specifically developed to address and to enhance the experience of Park visitors. Id. Grand Canyon I also observed that the Overflights Act "clearly divides the institutional responsibilities between" the FAA and the Park Service. Id. at 468. Because the Act directs the FAA to "implement the recommendations of the Secretary without change" unless they would adversely affect aviation safety, we held that the FAA "had no choice but to adopt the Park Service's recommendations" regarding substantial...