Westside Property Owners v. Schlesinger

• Decision Date: 17 June 1976
• Docket Number: No. Civ. 75-26 PHX (WEC).,Civ. 75-26 PHX (WEC).
• Citation: 415 F. Supp. 1298
• Parties: WESTSIDE PROPERTY OWNERS, an unincorporated association, et al., Plaintiffs, v. James R. SCHLESINGER, Secretary of Defense of the United States, et al., Defendants.
• Court: U.S. District Court — District of Arizona

415 F. Supp. 1298

WESTSIDE PROPERTY OWNERS, an unincorporated association, et al., Plaintiffs, v. James R. SCHLESINGER, Secretary of Defense of the United States, et al., Defendants.

No. Civ. 75-26 PHX (WEC).

United States District Court, D. Arizona.

June 17, 1976.

Jeremy E. Butler, Lewis & Roca, Phoenix, Ariz., for plaintiffs.

Asst. U. S. Atty. Richard S. Allemann, Phoenix, Ariz., for defendants.

OPINION

CRAIG, Chief Judge.

The above entitled cause came on for trial February 25, 26, and 27, 1976. Briefs were filed and final argument was made March 3, 1976.

Plaintiffs are the owners of real property interests in the vicinity of Luke Air Force Base, Maricopa County, in Arizona.

Defendants are the Secretary of Defense of the United States, the Secretary of the Air Force of the United States, the Commander of Luke Air Force Base and the Wing Commander at Luke Air Force Base.

Plaintiffs generally assert violation of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., specifically asserting inadequacy of the Environmental Impact Study in the beddown of the F-15 fighter plane at Luke Air Force Base, Arizona. Plaintiffs assert damages as a result of noise pollution, air pollution, and aircraft accidents.

Jurisdiction in this court is asserted by virtue of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (Life of the Land v. Brinegar, 485 F.2d 460, 9 Cir.); Title 28 U.S.C. § 1331(a); and 28 U.S.C. § 1361.

Luke Air Force Base has been in operation since March, 1941, with its primary function, the training of fighter pilots of the United States Air Force. Jet aircraft have been flying at Luke from 1951 to the present time. The F-100 was introduced in 1957 and phased out in October, 1971. The F-104 was introduced in April of 1964 and is still flying. The F-4 was introduced in May, 1971, and is still flying.

Two F-15 aircraft arrived at Luke Air Force Base in September, 1974, and began flight operations in November, 1974. As of February 19, 1976, there were 34 F-15 aircraft at Luke Air Force Base.

The F-15, in all probability, is the most sophisticated, fastest and most maneuverable fighter aircraft in the world today. With the development of the F-15, the United States Air Force was confronted with the logistical problem in the selection of a site which would give the optimum advantage in training pilots to fly this advanced aircraft in operation and weapon systems delivery. Early in 1970, the Air Force began its review of facilities available to it.

In September, 1970, Program Document 72-2 of the United States Air Force contained the first reference to the beddown of the F-15 aircraft at Luke Air Force Base. Quarterly thereafter, the United States Air Force and Units of Programming Documents showed the beddown of various numbers of F-15 aircraft at Luke Air Force Base. This includes the quarterly reports in the Programming Documents dated March, 1972, March, 1973, and March, 1974.

On or about the 17th of September, 1971, the United States Air Force issued a general Environmental Impact Statement regarding the acquisition of the F-15 aircraft.

On or about May 11, 1970, the United States Air Force issued an Environmental Impact Statement in connection with stationing the F-4 aircraft at Luke Air Force Base.

In 1972, the Commander of the United States Air Force Tactical Air Command, General William W. Momyer directed his staff to do a study of the TAC fighter force structure and basing options. This study included an assessment of the operational and training environments and the ecological impacts the actions would have. Based upon the results of that study, General Momyer concurred with the 1970 Programming Document which programmed the F-15 training for Luke Air Force Base.

Local controversy had caused an Environmental Impact Statement to be filed on the move of the F-4 into Luke during 1970. See Congressional Record, April 28, 1971 at E607. It was anticipated that a similar controversy would result from the proposed action of bedding down the F-15 at Luke Air Force Base. Therefore, it was requested that TAC begin preparation of an Environmental Impact Statement on the proposed action. On March 5, 1974, the candidate Environmental Impact Statement for the beddown of the F-15 was circulated for review and comment. Following the circulation of the candidate Environmental Impact Statement by the Air Force, a draft Environmental Impact Statement was printed and circulated for Air Force review and comment. The draft Environmental Impact Statement was filed with the Council on Environmental Quality and circulated to other federal and state agencies and the public, and on May 6, 1974, the announcement of the filing was published in the Federal Register.

The Air Force held a public hearing regarding the draft Environmental Impact Statement on June 17, 1974, at the Maricopa County Board of Supervisors Auditorium in Phoenix.

Following the 45 day review and comment period on the draft Environmental Impact Statement, the public hearing, and Internal Air Force Review, the final Environmental Impact Statement was circulated for Air Force approval. Major General J. F. Kern, Assistant DCS/Programs and Resources, Headquarters USAF, concluded the decision making on behalf of the Air Staff by concurring with the final Environmental Impact Statement on or about July 23, 1974. Dr. Billy E. Welch, Special Assistant for Environmental Quality, Headquarters USAF filed the final EIS with the Council on Environmental Quality on August 1, 1974. The Council on Environmental Quality Guidelines require a 30 day waiting period after filing the final statement before the proposed action can start. Thus, the beddown of the F-15 at Luke could have begun on August 31, 1974.

Plaintiffs assert that in bedding down the F-15 at Luke Air Force Base, the United States Air Force has not complied with Title 42 U.S.C. § 4332(2)A because it did not utilize a system of interdisciplinary approach in its decision making. 42 U.S.C. § 4332(2)A states that agencies of the federal government must: ". . . utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment. . . ." The section requires a "diligent research effort" which "reflects the current state of the art of relevant scientific discipline." Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, D.C.D.C.

The Environmental Impact Statement, defendants' Exhibit C in evidence, reflects the in-depth and comprehensive research effort that was involved in its preparation. The Environmental Impact Statement covers Air Quality Impacts, Visual Impacts, Noise Impacts, Impact on Land Use, and Socioeconomic Impacts, as well as others. Each of these sections contains an in-depth study and thorough explanation of all relevant matters.

The interdisciplinary approach that was used in developing the final Environmental Impact Statement insured the "integrated use of the natural and social sciences and the environmental design arts" in the decision making process as required by 42 U.S.C. § 4332(2)A.

Plaintiffs seem to assert a violation of 42 U.S.C. § 4332(2)C, because the Air Force employed the services of Arthur D. Little, Inc., a nationally recognized consulting firm to assist it in the preparation of the Environmental Impact Statement contemplated by that section. 42 U.S.C. § 4332(2)C.

42 U.S.C. § 4332(2)C requires a detailed statement of the environmental impact of a federal project by the responsible federal official, it does not, however, state how the official should obtain the information upon which his statement is based. Iowa Citizens for Environmental Quality v. Volpe, 487 F.2d 849, 8 Cir. Nor does it require that the head of the agency personally review and approve the Environmental Impact Statement. Life of the Land v. Brinegar, 485 F.2d 460, cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312. The act allows the responsible federal official to delegate some of the preparation of the Environmental Impact Statement. The requirement of 42 U.S.C. § 4332(2)C is that the federal agency must bear the responsibility for the ultimate work product. Id. at 467. See also Sierra Club v. Lynn, 502 F.2d 43, 5 Cir.; Citizens Environmental Council v. Volpe, 484 F.2d 870, 10 Cir., cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 and Iowa Citizens for Environmental Quality, supra.

In Life of the Land, supra, federal and state officials had employed the services of the Ralph M. Parsons Company, a private consulting firm. The plaintiffs asserted that the preparation of the Environmental Impact Statement had been "improperly delegated to a private consulting firm which had a major and direct contingent financial interest" in the approval of the proposed action. The court stated: "It does appear from the record that Parsons had a financial interest in an affirmative decision on the proposed project. We find nothing, however, in either the wording of NEPA or the case law, which indicates that, as a matter of law, a firm with a financial interest in the project may not assist with the drafting of the EIS." Rather, the court deemed the relevant inquiry to be whether there was "significant and active participation" by the agency in the preparation of the EIS. The court stated that the record indicated active agency participation in all phases of the EIS preparation and, therefore, held that there was no improper delegation of the preparation of the EIS.

In this case the record discloses that the Air Force participated significantly and actively in the preparation of the EIS and the final effort was an Air Force product.

Since it has been held in Life of the Land, supra, that a private consulting firm with a financial interest in an affirmative decision on the proposed action may assist in...