SAVE OUR SKIES LA, Petitioner, v. FEDERAL AVIATION ADMINISTRATION; STEPHEN M. DICKSON, in his official capacity as Administrator, Federal Aviation Administration, Respondents.
No. 20-73314
United States Court of Appeals for the Ninth Circuit
October 5, 2022
47 F.4th 1083
Before: Eric D. Miller and Daniel P. Collins, Circuit Judges, and Edward R. Korman,* District Judge. Opinion by Judge Miller
On Petition for Review of an Order of the Federal Aviation Administration. Argued and Submitted May 20, 2022, Pasadena, California. Filed October 5, 2022.
Federal Aviation Administration
The panel denied in part, and dismissed in part, a petition for review brought by an association of nearby residents challenging several Federal Aviation Administration ( FAA ) orders implementing and revising departure procedures at the Van Nuys and Burbank airports.
The two procedures at issue are the HARYS FOUR departure procedure at Van Nuys Airport, and the SLAPP TWO departure procedure at the Burbank Airport. Petitioner contends that the FAA failed to sufficiently analyze the procedures, in violation of the National Environmental Policy Act ( NEPA ), the Administrative Procedure Act, and section 4(f) of the Department of Transportation Act of 1996.
The key issue is the timeliness of petitioner s challenges. Petitions for review of FAA orders must be filed within 60 days after the order was issued, or where there are reasonable grounds to excuse a delay in filing.
The parties agree that the HARYS FOUR and SLAPP TWO orders, which were issued on September 10, 2020, were timely challenged. The petition for review, which was filed on November 9, 2020—exactly 60 days later—was timely as to those orders.
The orders that actually implemented the flight paths of departing aircraft are HARYS ONE and SLAPP ONE, which were promulgated years before petitioner filed its petition. First, petitioner argued that a timely challenge to one order allows a petitioner to challenge any related earlier orders. The panel held that the text of
Ariel Strauss (argued), Greenfire Law PC, Berkeley, California; Mitchell M. Tsai, Pasadena, California; for Petitioner.
James A. Maysonett (argued) and Justin D. Heminger, Attorneys; Todd Kim, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Courtney B. Adolph and Katherine T. Rooney, Attorneys, Federal Aviation Administration, Washington, D.C.; for Respondents.
Douglas Carstens, Chatten-Brown Carstens & Minteer LLP, Hermosa Beach, California; for Amici Curiae Studio City Residents Association, Save Coldwater Canyon, and Oak Forest Canyon Homeowners Association.
Robin Greenberg, President, Bel Air Hills Association, Los Angeles, California, for Amicus Curiae Bel Air Hills Association.
Stephen Arkle, President, Sunshine Hills Residents Association, Studio City, California, for Amicus Curiae Sunshine Hills Residents Association.
MILLER, Circuit Judge:
Few people want to live directly under an airport flight path, but planes still need to be able to go somewhere. Shifting a flight path only shifts the noise onto new areas and communities. Ensuring the safety and efficiency of air traffic is the responsibility of the Federal Aviation Administration, which prescribes approach and departure procedures for the nation s airports. Affected parties may challenge the FAA s decisions in court, but challenges are subject to a 60-day statute of limitations.
This case involves a challenge to several FAA orders implementing and revising departure procedures at the Van Nuys and Burbank airports in Southern California. Petitioner Save Our Skies Los Angeles, an association of nearby residents, sought review within the 60-day period of two FAA orders. But those orders did not implement the departure procedures to which Save Our Skies objects; they simply made minor editorial changes to two different orders that had been published years earlier. Save Our Skies cannot establish that there was anything unlawful about the editorial changes. Its real challenge is to the substance of the earlier orders. And as to those orders, its challenge comes long after the statute of limitations expired. We deny the petition for review in part and dismiss it in part.
I
Congress has vested the FAA with authority to adopt rules governing the navigation of aircraft within the United States.
In 2012, Congress directed the FAA to modernize the nation s air transportation system, including the departure and arrival procedures at airports across the country. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 213, 126 Stat. 11, 46–50. In particular, Congress instructed the FAA to replace conventional compass- and radar-based navigation procedures with satellite-based navigation procedures, which allow for greater flight automation and reduce the time and airspace needed by departing and arriving planes. As part of the modernization, the FAA began designing the Southern California Metroplex Project, which would implement new procedures at 21 airports across the region.
To comply with its procedural obligations under the National Environmental Policy Act (NEPA),
As part of the Southern California Metroplex, the FAA implemented numerous procedures at the Van Nuys and
Like other procedures, HARYS contains several waypoints —specified geographical positions along a flight route at which an aircraft is to begin changing direction, speed, or altitude. As part of the Southern California Metroplex, the FAA proposed a HARYS departure procedure that included a waypoint just over a mile south of the southern end of the Van Nuys runway. But implementing that waypoint required a waiver from the FAA s Flight Standards Procedure Review Board, which the Board did not grant. As a result, the procedure actually adopted by the FAA in HARYS ONE included a different waypoint, one located directly on the southern end of the Van Nuys runway. But that waypoint required aircraft to turn almost immediately upon takeoff, which resulted in violations of the Van Nuys Airport s noise-abatement requirements.
To address that problem, the FAA promulgated HARYS TWO in May 2018. The new order replaced the HARYS ONE waypoint with one at essentially the same location as the waypoint that was originally proposed by and analyzed in the Metroplex. Critically for this case, since the 2018
Following HARYS TWO, the FAA promulgated two orders implementing minor editorial changes to the procedure. Only the second of those orders, HARYS FOUR, is at issue here. HARYS FOUR made two changes to make the language of the procedure more consistent with the language in procedures used in other regions of the country. Specifically, it replaced the phrase LANDING LAS COMPLEX with LANDING LAS TERMINAL AREA, and it added the phrase VNY TOWER TO COMMUNICATIONS. Neither change affected the flight path of any aircraft departing from the Van Nuys Airport.
As part of its preparation for promulgating HARYS FOUR, the FAA issued a declaration that the proposed order did not require additional review under NEPA because it was a minor change that was categorically excluded from review, and it did not present any extraordinary circumstances. On September 10, 2020, the FAA promulgated HARYS FOUR.
During the time that the agency was revising HARYS, local governments and members of the public formed the Southern San Fernando Valley Airplane Noise Task Force in response to concerns over a southern shift in which departing aircraft from Van Nuys and Burbank were flying farther south before turning north to their destinations as compared to the pre-Metroplex flight paths. This southern shift is at the heart of the petition in this case.
Between August 2019 and May 2020, the Task Force met seven times, and in June 2020, it submitted 16 recommendations to the FAA regarding, among other issues, the HARYS departure procedure. Although the FAA
The history of the SLAPP procedure is somewhat more straightforward. On March 2, 2017, the SLAPP departure procedure proposed by the FAA as part of the Southern California Metroplex and analyzed in its environmental assessment went into effect at the Burbank Airport. In October 2018, in an effort to remedy the southern shift from the Burbank Airport, the FAA published a draft environmental assessment identifying a number of potential solutions. In March 2019, after receiving numerous comments on its draft assessment and holding two public meetings, the FAA decided to prepare a further environmental assessment considering additional alternatives. That assessment is still underway.
While continuing to work on the SLAPP environmental assessment, the FAA determined that it was necessary to make a minor wording change to SLAPP ONE, similar to the one it made in HARYS FOUR, replacing LANDING LAS COMPLEX with LANDING LAS TERMINAL AREA. That change did not affect the flight path of any aircraft departing from the Burbank Airport. In the same declaration covering HARYS FOUR—and for the same reasons—the FAA stated that SLAPP TWO did not require additional review under NEPA. On September 10, 2020, the FAA promulgated SLAPP TWO.
On November 9, 2020, Save Our Skies filed the present petition, seeking review of HARYS FOUR and SLAPP TWO. Save Our Skies argues that the FAA failed to sufficiently analyze the procedures, in violation of NEPA,
II
The key issue in this case is the timeliness of Save Our Skies challenges. Congress has limited our jurisdiction over petitions for review of FAA orders to those petitions that are filed not later than 60 days after the order is issued or for which reasonable grounds excuse the delay in filing.
The HARYS FOUR and SLAPP TWO orders were issued on September 10, 2020, so as the FAA acknowledges, the petition for review, which was filed on November 9, 2020—exactly 60 days later—was timely as to those orders. Unfortunately for Save Our Skies, its challenge to those orders fails on the merits.
Save Our Skies argues that the FAA violated NEPA because it did not conduct an environmental assessment before it adopted HARYS FOUR and SLAPP TWO. NEPA imposes procedural requirements designed to force agencies to take a hard look at environmental consequences of proposed actions. Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003) (quoting Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002)); see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Under NEPA, a
NEPA s implementing regulations permit agencies to establish categorical exclusions covering actions that normally do not require either an environmental impact statement or an environmental assessment and do not have a significant effect on the human environment.
Save Our Skies does not meaningfully dispute that the orders fall within the scope of the categorical exclusion. Instead, it argues that the FAA could not invoke the exclusion because of what it calls the obvious extraordinary circumstances implicated by HARYS FOUR and SLAPP TWO. But Save Our Skies does not explain how the minor wording changes [m]ay have a significant impact. FAA Order 1050.1F 5-2.a. It asserts that the HARYS FOUR and SLAPP TWO edits could exacerbate noise impacts, but the orders could not possibly have any effect on noise because, as we have explained, they do nothing to change the flight path of any aircraft. The orders did not implicate extraordinary circumstances, so the FAA did not err in relying on the categorical exclusion for its edits.
Save Our Skies argument that the FAA should have produced a supplemental environmental analysis under NEPA fails for the same reason. Supplemental environmental analysis is required only when the environmental impact is significant or uncertain and the [environmental assessment] is no longer valid. City of Las Vegas v. FAA, 570 F.3d 1109, 1117 (9th Cir. 2009). Even if the original environmental assessment were no longer valid here, the minor wording changes do not have an environmental impact, let alone a significant or uncertain one. Id. The FAA therefore had no obligation to produce a supplemental assessment.
For similar reasons, Save Our Skies is incorrect to argue that the FAA violated section 4(f) of the Department of Transportation Act of 1966,
Finally, Save Our Skies argues that, [b]eyond NEPA, the FAA has an independent duty to prescribe . . . regulations to control and abate aircraft noise under
III
The orders that actually implemented the flight paths of departing aircraft, and thus the orders that form the true basis for Save Our Skies challenge, are HARYS ONE and TWO and SLAPP ONE, which were promulgated years before Save Our Skies filed its petition. In an effort to reach those orders despite the petition s obvious tardiness, Save Our Skies relies on two theories. First, it argues that a timely challenge to one order allows a petitioner to challenge any related earlier orders. Second, it attempts to attack the orders directly by arguing that the hundreds of days it let pass before filing its petition should be excused. Neither theory has merit.
A
Save Our Skies insists that its challenge to the earlier HARYS and SLAPP orders does not amount to a collateral attack on those orders, but that is precisely what it seeks to bring in this proceeding. Save Our Skies attempts to blend all of the HARYS and SLAPP orders together, arguing that because it timely challenged HARYS FOUR and SLAPP TWO, this court has jurisdiction over all previous orders bearing the HARYS or SLAPP name, no matter their age. The text of
Section 46110 strictly limits our jurisdiction in both time and scope. See Americopters, 441 F.3d at 733–34. As to time, subsection (a) makes clear that we have jurisdiction to hear only those challenges filed not later than 60 days after the order is issued or for which reasonable grounds exist to
Because Save Our Skies timely challenged HARYS FOUR and SLAPP TWO, we have jurisdiction to affirm or modify any part of those orders—but only those orders.
B
Save Our Skies devotes most of its effort to a direct attack on the earlier HARYS and SLAPP orders. It contends that its petition is timely as to those orders because the statutory reasonable grounds exception excuses its multi-year delay, or, alternatively, because the FAA s alleged NEPA and other violations tolled the statute of limitations. We disagree.
1
Section 46110 permits us to entertain a petition filed later than 60 days after the order is issued . . . only if there are reasonable grounds for not filing by the 60th day.
In our published opinions discussing the reasonable grounds exception, we have made clear that a petitioner s own mistake cannot excuse its delay in filing. In Sierra Club v. Skinner, we held that even though the FAA ha[d] created a confusing situation in circulating a Handbook which states that the [challenged action] is not an order, no reasonable grounds for delay existed because adequate research should have revealed that the action was in fact a reviewable final order. 885 F.2d 591, 593–94 (9th Cir. 1989). Similarly, in Americopters, we held that the quixotic pursuit of the wrong remedies —in that case, mistakenly filing in the wrong court — was not a reasonable ground for delay. 441 F.3d at 734. Other circuits have similarly held that a delay of the petitioner s own making is not based on reasonable grounds. See, e.g., Howard Cnty. v. FAA, 970 F.3d 441, 450–51 (4th Cir. 2020); Nat l Fed. of the Blind v. United States Dep t of Transp., 827 F.3d 51, 58 (D.C. Cir. 2016); Tulsa Airports Improvement Tr. v. FAA, 839 F.3d 945, 950 (10th Cir. 2016).
Save Our Skies argues that the FAA acted in a manner that would confound the public when it promulgated the earlier HARYS and SLAPP orders. Specifically, it says that the FAA confused the public by not explaining the contents of the departure procedures or how and when it changed them. But the FAA published documents and maps detailing the departure procedures for each order challenged here. That Save Our Skies failed to undertake adequate research by not examining the orders within 60 days of their promulgation does not establish reasonable grounds for delay. Skinner, 885 F.2d at 593.
As the court explained in Maryland v. FAA, that the FAA assur[ed] the public that it would work cooperatively to implement further changes to address noise concerns, actively participated in a working group on noise, and engaged with a petitioner on the issue of noise prevention, is not by itself sufficient to establish reasonable grounds for delay. 952 F.3d at 290–92. The court rejected Maryland s argument that because the agency signaled that it was willing to work with the [Working] Group on possible
Save Our Skies contends that, as in City of Phoenix, the FAA s engagement with affected parties would certainly have led reasonable observers to think the FAA might fix the noise problem without being forced to do so by a court. City of Phoenix, 869 F.3d at 970. But Save Our Skies petition was far later than the petition in City of Phoenix—indeed, it was far later than that excused by any court applying the reasonable grounds exception. More importantly, there was no pattern of engagement by the FAA as to either the HARYS or SLAPP orders that was remotely comparable to the near constant engagement in City of Phoenix. See Maryland, 952 F.3d at 291.
As to HARYS ONE and TWO, Save Our Skies waited 1232 and 840 days, respectively, to file its petition. It asserts
The most that can be said of the FAA s engagement with the Task Force—an entity that the FAA did not form and of which neither the FAA nor Save Our Skies were members—is that the FAA sent a technical advisor to at least one meeting to consult on the feasibility of certain recommendations. Otherwise, the FAA s engagement began and ended with the agency s receipt—and rejection—of the Task Force s recommendations regarding, among many issues, the HARYS departure procedure. As the District of Columbia Circuit has explained, even the FAA actively participat[ing] in a group like the Task Force would be insufficient to furnish reasonable grounds for delay. Maryland, 952 F.3d at 291. Its involvement here was far from the level of engagement necessary to create reasonable grounds.
In any event, even if Save Our Skies had succeeded in demonstrating that the Task Force s existence furnished reasonable grounds, that still would not make the petition timely because it would excuse only the period between the Task Force s formation in July 2019 and the FAA s rejection of its recommendations on September 1, 2020. The Task Force was not formed until more than a year after the filing deadlines for both HARYS ONE and TWO had expired, and the FAA rejected its recommendations 69 days before Save
As to SLAPP ONE, Save Our Skies similarly fails to excuse its delay of 1288 days. It argues that it did not petition for review earlier because, until the promulgation of SLAPP TWO, the FAA appeared to engage in an administrative and environmental review process to modify SLAPP ONE to address community concerns about environmental impacts. As evidence, Save Our Skies states that the FAA published a draft environmental review in 2018, took comments and held community workshops in 2019, and decided to prepare a further assessment analyzing proposed changes to SLAPP ONE.
Save Our Skies misunderstands SLAPP TWO as a sub silentio rejection of the amendments proposed in the environmental review. In fact, as the FAA explained in its September 2020 letter to the Task Force, the SLAPP environmental assessment process is ongoing. SLAPP TWO did not reject the proposed amendments; it merely implemented the minor wording changes to SLAPP ONE that we have already discussed. Save Our Skies own confusion is not a reasonable ground for delay, and certainly not a delay of this length. See Skinner, 885 F.2d at 593–94; Americopters, 441 F.3d at 734. And in any event, Save Our Skies does not explain how the draft SLAPP environmental review, published in October 2018, could possibly excuse the 17 months of delay that had already taken place after the 60-day period for challenging SLAPP ONE expired in May 2017.
Finally, Save Our Skies contends that because the FAA repeatedly failed to comply with the requirements of NEPA, there is a continuous pattern of violative conduct by the FAA, which should serve to toll the statute of limitations for the filing of this petition. It is true that in certain contexts, we have stated that a statute of limitations may be tolled to allow a plaintiff to challenge a series of related acts, some of which occurred within the limitations period and some of which occurred earlier. See Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003). But that rule is more limited than Save Our Skies suggests: When a plaintiff alleges claims based on discrete acts, the claims are only timely where such acts occurred within the limitations period. Ellis v. Salt River Project Agric. Improvement & Power Dist., 24 F.4th 1262, 1273 (9th Cir. 2022) (quoting Cherosky, 330 F.3d at 1246).
Save Our Skies urges us to apply to the 60-day time limit in section 46110 the same continuing-violations doctrine that it contends applies in the context of the six-year statute of limitations applicable to APA claims. See
The governing statute here is section 46110, not section 2401(a). Although section 2401(a) requires filing within six years of when the right of action first accrues, section 46110(a) requires filing within 60 days of when the order is issued. Whether or not a continuing violation can extend the accrual of a right of action, it cannot alter the date on which the order is issued. See United States v. Locke, 471 U.S. 84, 93 (1985) (explaining that with respect to filing deadlines a literal reading of Congress words is generally the only proper reading ).
Save Our Skies argument amounts to a request that we ignore section 46110 in favor of the statute of limitations that would otherwise apply to APA claims. But Save Our Skies cannot circumvent the strict time limits imposed by section 46110 simply by invoking the APA. See Turtle Island Restoration Network v. United States Dep t of Commerce, 438 F.3d 937, 944 (9th Cir. 2006). Allowing it to do so would contradict the rule of statutory construction that [a] specific provision controls over one of more general application. Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991). The continuing-violation doctrine therefore does not provide a basis for extending the statute of limitations.
Save Our Skies petition for review of HARYS ONE and TWO and SLAPP ONE is untimely, so we dismiss the petition for review insofar as it challenges those orders.