City of Los Angeles v. Stephen Dickson
19-71581
9th Cir.Jul 8, 2021Background
- The FAA issued three amended arrival procedures for Los Angeles International Airport ("amended Arrival Routes"). Los Angeles and Culver City ("Cities") challenged those routes under NEPA, NHPA, and section 4(f).
- FAA treated the amended Arrival Routes as final agency action; Cities filed petition for review more than 60 days after issuance but relied on an FAA tolling agreement to excuse delay.
- The FAA compiled an administrative record that referenced a post hoc "Initial Environmental Review" and memo dated after the amended Arrival Routes were published; FAA also pointed to an undated spreadsheet only during litigation.
- Cities argued the FAA unlawfully applied a categorical exclusion without addressing "extraordinary circumstances," failed to consult under NHPA, and failed to consult as required by section 4(f).
- The FAA defended its actions as final and claimed the post hoc documents satisfied environmental review and that vacatur of the routes would cause serious safety, cost, and environmental harms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over amended Arrival Routes | Cities: FAA action is final but tolling excused late filing | FAA conceded finality; argued timeliness issue | Court: Jurisdiction exists; tolling provided reasonable grounds for delay |
| NEPA: adequacy of environmental review / categorical exclusion | Cities: FAA failed to perform required NEPA review and ignored dispute/extraordinary circumstances | FAA: Post hoc Initial Environmental Review documented application of a categorical exclusion | Court: FAA's post hoc materials cannot substitute for prior NEPA review; application of categorical exclusion was arbitrary and capricious; NEPA violation |
| NHPA: consultation obligation | Cities: FAA failed to consult with local governments and other stakeholders as required | FAA: Post hoc review showed no adverse effect on historic properties | Court: Failure to consult violated NHPA irrespective of post hoc substantive findings |
| Section 4(f): consultation and "use" analysis | Cities: FAA did not consult regarding potential constructive use (noise) of protected properties | FAA: Section 4(f) analysis performed post hoc and consultation not required or unnecessary | Court: FAA violated its section 4(f) procedures by failing to consult; remand warranted |
| Remedy: vacatur vs remand without vacatur | Cities: Erroneous action should be vacated | FAA: Vacatur would be highly disruptive to safety, cost, and environment | Court: Remanded for proper NEPA/NHPA/4(f) compliance but left routes in place (remand without vacatur) |
| Notice on FAA website (Instrument Flight Procedure Info Gateway) | Cities: Notice improperly excluded consideration of environmental comments (AP A, NEPA, due process) | FAA: Notice is informational and not a final, reviewable order | Court: Notice is not a final agency action under 49 U.S.C. § 46110; claims dismissed for lack of jurisdiction |
Key Cases Cited
- S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672 (9th Cir. 1989) (scope of appellate jurisdiction over FAA orders)
- MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008) (test for final agency action)
- Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019) (government concession can supply reasonable grounds for late filing)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA requires consideration of environmental impacts before action)
- Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) (limits on categorical exclusions and arbitrary-and-capricious review)
- Morongo Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir. 1998) (NEPA, NHPA, and section 4(f) review standards for FAA actions)
- City of Phoenix v. Huerta, 869 F.3d 963 (D.C. Cir. 2017) (FAA's failure to notify and consult under preservation statutes)
- Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (U.S. 2020) (agency must defend its action based on contemporaneous reasons)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (standards for supplementing the administrative record)
- Pollinator Stewardship Council v. U.S. EPA, 806 F.3d 520 (9th Cir. 2015) (remand without vacatur—balancing error seriousness and disruption)