Welch v. U.S. Air Force, 5:00-CV-392-C.

• Decision Date: 24 March 2003
• Docket Number: No. 5:00-CV-392-C.,5:00-CV-392-C.
• Citation: 249 F.Supp.2d 797
• Parties: Buster WELCH, et al., Plaintiffs, v. UNITED STATES AIR FORCE, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

249 F.Supp.2d 797

Buster WELCH, et al., Plaintiffs, v. UNITED STATES AIR FORCE, et al., Defendants.

Civil Action No. 5:00-CV-392-C.

United States District Court, N.D. Texas, Lubbock Division.

March 24, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Frank M. Bond, Simons Firm, Santa Fe, NM, Timothy T. Pridmore, McWhorter Cobb & Johnson, Lubbock, TX, for Plaintiff John R. Parker, U.S. Attorney's Office, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

CUMMINGS, District Judge.

On this date the Court considered Plaintiffs' Motion for Summary Judgment filed on September 17, 2002, by Buster Welch, et al. ("Plaintiffs"). Defendants' Response to Plaintiffs' Motion for Summary Judgment was filed by the United States Air Force, et al. ("Defendants") on November 15, 2002. Plaintiffs' Reply in Support of Motion for Summary Judgment was filed on December 18, 2002. The Brief by Amicus Curiae The State of Texas was filed on September 23, 2002. Defendants' Response to State of Texas' Amicus Curiae Brief and Brief in Support was filed on November 18, 2002. 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 on November 15, 2002. Plaintiffs' Response to Defendants' Motion to Strike Extra-Record Declarations and Materials Attached to Plaintiffs' Motion for Summary Judgment was filed on December 18, 2002. 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 to Strike Defendants' Declarations filed on December 18, 2002. Defendants' Response to Plaintiffs' Motion to Strike Defendants' Declarations was filed on January 15, 2003. Plaintiffs' Reply in Support of Plaintiffs' Motion to Strike Defendants' Declarations was filed on January 30, 2003. After considering all the relevant arguments and evidence, this Court GRANTS Plaintiffs' Motion to Strike Defendants' Declarations.

On this date the Court concurrently considered Defendants' Motion to Strike Materials Attached to Plaintiffs' Reply in Support of Motion for Summary Judgment and Response to Defendants' Cross-Motion for Summary Judgment filed on January 15, 2003. Plaintiffs' Response to Defendants' Motion to Strike Materials Attached to Plaintiffs' Reply in Support of Motion for Summary Judgment and Response to Defendants' Cross-Motion for Summary Judgment was filed on January 30, 2003. Defendants filed no reply. After considering all the relevant arguments and evidence, this Court GRANTS Defendants' Motion to Strike Materials Attached to Plaintiffs' Reply in Support of Motion for Summary Judgment and Response to Defendants' Cross-Motion for Summary Judgment.

On this date the Court concurrently considered Defendants' Cross-Motion for Summary Judgment filed on November 15, 2002. Plaintiffs' Response to Defendants' Cross-Motion for Summary Judgment was untimely filed on December 18, 2002. 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

The twenty-eight Plaintiffs in this case are landowners or business operators situated in Borden, Dawson, Dickens, Fisher, Garza, Glasscock, Howard, Kent, Loving, Lubbock, Martin, Mitchell, Nolan, Reeves, Scurry, and Stonewall Counties in west Texas. Plaintiffs collectively own or control approximately 530,000 acres of land which are used for, inter alia, cattle and horse ranching; farming; public and private hunting, fishing, camping, and other recreational activities; unscheduled aerial agricultural spraying and predator control; private aviation training; and a proposed residential development of 400-450 single-family homes. In addition, utilizing private takeoff and landing strips on their respective ranches, at least two of the Plaintiffs own multiple private small aircraft used to conduct unscheduled overflights of their ranches to check on livestock. The half-million-plus acres are described as "variable terrain with river valleys, peaks and flat country."

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 a Final Environmental Impact Statement ("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.

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

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 above ground level ("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 acreseach)

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 aplomado falcon habitat;

2. considering construction alternatives in connection with roads, telephone lines, and power lines;

3. raising the AGL floor of several segments of IR-178 from the proposed 200 feet AGL to 300 feet AGL, and raising the floor of IR-178 reentry routes to 6,000 feet MSL;

4. relocating ESS and electronic threat emitter sites to avoid historical sites, homes, large structures, and obvious bodies of water; and

5. limiting the annual sortie operations to pre-RBTI levels of...