NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HELICOPTER ASSOCIATION No. 24-1008 INTERNATIONAL; SAFARI AVIATION, Agency No. Federal Aviation INC. DBA SAFARI HELICOPTERS Administration

HAWAI‘I,

MEMORANDUM*

Petitioners,

v.

FEDERAL AVIATION

ADMINISTRATION,

Respondent.

On Petition for Review of an Order of the Federal Aviation Administration

Submitted June 5, 2025** Honolulu, Hawaii

Before: W. FLETCHER, CHRISTEN, and DESAI, Circuit Judges.

Helicopter Association International and Safari Aviation dba Safari

Helicopters Hawai‘i (Petitioners) petition for review of the final decision

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). implementing an Air Tour Management Plan for Hawai‘i Volcanoes National Park

(the Volcanoes ATMP) pursuant to 49 U.S.C. § 40128 (the Act). The Federal

Aviation Administration (FAA) and the National Park Service (NPS) (collectively,

the Agencies) issued the Volcanoes ATMP. The ATMP reduces the number of air

tours authorized over the Park to 1,548 tours annually and restricts the routes, days,

and hours that air tour operators may fly.

The decision issuing the ATMP is a final order of the FAA, and Safari

Aviation has its principal place of business in Hawai‘i, so we have jurisdiction

pursuant to 49 U.S.C. § 46110(a). See also 49 U.S.C. § 40128(b)(5) (“An [ATMP]

developed under this subsection shall be subject to judicial review.”). We review

the final order pursuant to the Administrative Procedure Act’s (APA) arbitrary and

capricious standard, 5 U.S.C. § 706(2)(A), Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We deny the petition.

The Act obligates the Agencies to satisfy the APA’s notice and comment

provisions, 5 U.S.C. § 553. See 49 U.S.C. § 40128(b)(4)(B). And the APA

requires the Agencies to “consider and respond to significant comments received

during the period for public comment.” Perez v. Mortg. Bankers Ass’n, 575 U.S.

92, 96 (2015).

Petitioners argue that the Agencies violated the APA by failing to respond to

certain public comments. Specifically, Petitioners contend that the Agencies did

2 24-1008 not address two significant issues raised in public comments: (1) safety concerns

regarding the route, time, and altitude restrictions; and (2) concerns that the

reduction in the number of annual air tours will limit Park access for the elderly,

persons with disabilities, and persons with mobility impairments. Petitioners cite

several public comments located in Appendix J of the final Environmental

Assessment (EA)1 and submitted during the public scoping process.

Petitioners overlook a key portion of the administrative record: the

Comment Summary Report located at Appendix L of the final EA and

incorporated into the final decision. The Comment Summary Report responds to

the specific categories of comments on which Petitioners base their petition. See

Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of Com., 792 F.3d 1027, 1034 (9th

Cir. 2015) (rejecting argument that agency did not consider economic impacts as

“belied by the administrative record”). The Agencies’ FONSI/ROD also explains

that the FAA reviewed all safety-related comments and details how the Agencies

modified the draft ATMP to address safety concerns. The Agencies’ decision

1 The Act requires the Agencies to conduct an environmental review pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, when developing an ATMP. 49 U.S.C. § 40128(b)(2). As a result, the record of the Agencies’ final action resembles the type of record in most NEPA cases: an EA, a Finding of No Significant Impact (FONSI), and several EA appendices incorporated into the Record of Decision (ROD). This case, however, does not involve NEPA claims. Petitioners challenge only the Agencies’ compliance with the APA’s notice and comment procedures.

3 24-1008 “both acknowledged the comments identified by [Petitioners] and provided a

reasoned response which demonstrated that its action was based on relevant safety

considerations.” Safari Aviation Inc. v. Garvey, 300 F.3d 1144, 1151 (9th Cir.

2002). Petitioners argue that the Agencies’ response to accessibility concerns

lacks specificity, but the response shows that the Agencies did not “entirely fail[]

to consider an important aspect of the problem,” State Farm, 463 U.S. at 43, or

evade their obligation to respond to public comments. Petitioners fail to show the

decision was arbitrary or capricious. See Safari Aviation, 300 F.3d at 1150–51.

PETITION DENIED.

4 24-1008