NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF LOS ANGELES, No. 19-71581

Petitioner,

CITY OF CULVER CITY, MEMORANDUM*

Petitioner-Intervenor,

v.

STEPHEN M. DICKSON, in his official capacity as Administrator, Federal Aviation Administration; FEDERAL AVIATION

ADMINISTRATION,

Respondents.

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

Argued and Submitted June 11, 2021 Pasadena, California

Before: MURGUIA, BADE, and LEE, Circuit Judges.

The City of Los Angeles and Culver City (“Cities”) petition for review of two

Federal Aviation Administration (“FAA”) actions pursuant to 49 U.S.C. § 46110.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We grant the petition in part and dismiss the petition in part.

1. The Cities argue that the FAA violated the National Environmental Policy Act

(“NEPA”), the National Historic Preservation Act (“NHPA”), and section 4(f) of the

Department of Transportation Act by issuing three amended flight procedures for

aircraft arriving at Los Angeles International Airport (the “amended Arrival

Routes”) without environmental review. As an initial matter, we conclude that we

have jurisdiction over the petition for review of the amended Arrival Routes. See S.

Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d 672, 675 (9th Cir. 1989) (explaining

that we have an obligation to determine the scope of our own jurisdiction).

Under 49 U.S.C. § 46110(a), we may review “an order issued by” the FAA

based on a petition filed “not later than 60 days after the order is issued” unless

“there are reasonable grounds for not filing by the 60th day.” Here, as the FAA

concedes, the amended Arrival Routes constitute a final, reviewable agency order

because the amended Arrival Routes are supported by a reviewable administrative

record, definitively state the FAA’s position, have a direct and immediate effect on

the Cities, and require immediate compliance. See MacLean v. Dep’t of Homeland

Sec., 543 F.3d 1145, 1149 (9th Cir. 2008) (per curiam) (citing Gilmore v. Gonzales,

435 F.3d 1125, 1132 (9th Cir. 2006)). Although Los Angeles petitioned for review

of the amended Arrival Routes more than a year after the amended Arrival Routes

were issued, and Culver City moved to intervene in the action several weeks after

2 that, the Cities had reasonable grounds for the delay because the FAA had agreed to

toll the statutory petition-for-review deadline while the Cities attempted to work

with the FAA to address their concerns.1 See Kashem v. Barr, 941 F.3d 358, 391

(9th Cir. 2019) (explaining that there were “reasonable grounds” for delay based on

the government’s concession); see also City of Phoenix v. Huerta, 869 F.3d 963, 970

(D.C. Cir. 2017). Therefore, we have jurisdiction over the Cities’ NEPA, NHPA,

and section 4(f) claims.

NEPA requires the FAA and other federal agencies to evaluate and disclose

the environmental impacts of their actions. See 42 U.S.C. § 4332; see also Morongo

Band of Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998). The NEPA

process is intended to ensure that “before an agency can act,” the agency considers

potential environmental impacts. Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 349, 353 (1989). The FAA did not do so here.2 In compiling the

1 We grant Los Angeles’s motion to consider the tolling agreement (Doc. 115), which provides that Los Angeles had “reasonable grounds” to delay filing a petition for review of the amended Arrival Routes. 2 We grant the two pending motions to supplement the record, see Doc. 50 (FAA’s Cross-Motion to Supplement the Record); Doc. 63 (Los Angeles’s Motion to Complete the Record, alternatively seeking supplementation of the record), because the supplemental documents the FAA and Los Angeles offer are necessary to determine whether the FAA properly “considered all relevant factors and . . . explained its decision.” See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996)). However, we deny Los Angeles’s request to complete the record (Doc. 63), because there is no indication the FAA relied on these documents

3 administrative record for the amended Arrival Routes, the FAA pointed to two

documents as the basis for its decision—a memo “confirming” the agency had

completed the necessary environmental review, and an “Initial Environmental

Review” document. But both documents postdated the publication of the amended

Arrival Routes by several months. Accordingly, they cannot constitute the FAA’s

NEPA review. See id. Nor can the undated spreadsheet that the FAA points to for

the first time during this litigation form the requisite review. See Dep’t of Homeland

Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020) (“An agency must

defend its actions based on the reasons it gave when it acted.”).

The FAA argues that its post hoc Initial Environmental Review document

brought the agency into compliance with NEPA by documenting the FAA’s

application of a categorical exclusion to NEPA review. A categorical exclusion

excuses an agency from preparing an environmental impact statement or

environmental assessment for a particular action. See Sierra Club v. Bosworth, 510

F.3d 1016, 1018–19 (9th Cir. 2007). But a categorical exclusion may not be applied

when there are “extraordinary circumstances in which a normally excluded action

in performing its environmental review. See Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989).

We also grant Los Angeles’s Motion for Judicial Notice (Doc. 66), but we deny the FAA’s Motion to Consider Formatted Document (Doc. 79) as moot, as this document already exists in the record.

4 may have a significant environmental effect.” Id. at 1019 (citation omitted). We

review an agency’s determination that a categorical exclusion applies to a particular

action, and that there are no extraordinary circumstances preventing application of

the categorical exclusion, under the arbitrary-and-capricious standard. See id. at

1022. This standard requires the agency to “articulate a rational connection between

the facts found and the conclusions reached.” Id. at 1023 (citation omitted). In

addition, “when an agency has taken action without observance of the procedure

required by law, that action will be set aside.” Id.

Here, the FAA’s procedures state that “extraordinary circumstances” exist,

and a categorical exclusion may not be applied, when a proposed action is “likely to

be highly controversial on environmental grounds,” meaning that “there is a

substantial dispute over the degree, extent, or nature of a proposed action’s

environmental impacts.” The Cities maintain that, based on the FAA’s own

definition, there were such “extraordinary circumstances” here because there was

significant controversy about the extent to which aircraft were flying below the

minimum altitudes on the original Arrival Routes. In other words, the Cities assert

that there was a substantial dispute over the noise and other environmental impacts

that the amended Arrival Routes would cause, and the public controversy

surrounding the Arrival Routes was evidence of this dispute. But the FAA failed to

address the record evidence indicating that there was a dispute over the potential

5 effects of the amended Arrival Routes in the Initial Environmental Review, in

contravention of its own procedures. Therefore, the FAA’s application of a

categorical exclusion was arbitrary and capricious, in violation of NEPA. See Sierra

Club, 510 F.3d at 1023; see also City of Phoenix, 869 F.3d at 972–73. Accordingly,

we grant the Cities’ petition for review of the amended Arrival Routes with respect

to the NEPA claims.

NHPA requires an agency to consider the effects of proposed actions on

historic structures. See Morongo Band, 161 F.3d at 581. “In fulfilling this

obligation, agencies must consult with certain stakeholders in the potentially

affected areas, including representatives of local governments.” City of Phoenix,

869 F.3d at 971; see 36 C.F.R. §§ 800.2(a)(4), (c)(3); 800.5(c). We review an

agency’s NHPA decisions “under the arbitrary and capricious standard.” Morongo

Band, 161 F.3d at 573. The FAA makes no argument that it sought to comply with

NHPA before issuing the amended Arrival Routes. But the FAA contends that its

post hoc Initial Environmental Review document sufficiently analyzed the effects of

the amended Arrival Routes on historic structures. That may be, but the NHPA

requires more—specifically, consultation. Here, the FAA’s admitted failure to

consult with Los Angeles or Culver City violated NHPA, even if the FAA properly

determined that there would be no adverse impacts on historic properties. See id. at

581; see also City of Phoenix, 869 F.3d at 971 (explaining that “the FAA’s failure

6 to notify and provide documentation to the City of the agency’s finding of no adverse

impact violated regulations under the Preservation Act, and denied the City its right

to participate in the process and object to the FAA’s findings”); 36 C.F.R. § 800.5(c).

Accordingly, we also grant the petition for review with respect to the NHPA claim.

Finally, section 4(f) of the Transportation Act requires an agency within the

Department of Transportation to assess whether a transportation project will “use” a

“public park,” “recreation area,” or “historic site of national, State, or local

significance.” See 49 U.S.C. § 303(c). The term “use” includes “constructive use,”

such as elevated noise levels that “substantially interfere” with the use of a property.

Morongo Band, 161 F.3d at 583. According to the FAA’s procedures, a responsible

FAA official “must consult all appropriate Federal, state, and local officials having

jurisdiction over the affected Section 4(f) properties when determining whether

project-related impacts would substantially impair the resources.” Fed. Aviation

Admin., Order No. 1050.1F, Environmental Impacts: Policies and Procedures § B-

2.2.2 (July 16, 2015). As with an agency’s NEPA and NHPA determinations,

“[d]ecisions regarding . . . the Transportation Act are similarly reviewed under the

arbitrary and capricious standard.” Morongo Band, 161 F.3d at 573. Here, the FAA

ultimately completed its section 4(f) analysis in the post hoc Initial Environmental

Review document, but there is no evidence that the FAA ever consulted with the

Cities regarding the affected section 4(f) properties the FAA identified. What’s

7 more, the FAA did not acknowledge its section 4(f) consultation obligation in the

Initial Environmental Review, nor explain why it was excused from consulting with

the Cities. Therefore, the FAA also violated its own section 4(f) procedures, and we

grant the petition for review with respect to the section 4(f) failure-to-consult claim.

In sum, we conclude that the FAA violated NEPA, NHPA, and section 4(f) in

issuing the amended Arrival Routes. Although the typical remedy when we hold an

agency’s action unlawful is vacatur, we have discretion to remand without vacatur

“when equity demands.” Pollinator Stewardship Council v. U.S. EPA, 806 F.3d

520, 532 (9th Cir. 2015) (quoting Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d

1392, 1405 (9th Cir. 1995)). In exercising this discretion, we weigh the seriousness

of the agency’s error against the disruptive consequences of vacating the agency’s

action. Id. Although the failure to complete proper environmental review is a

serious error, the FAA has asserted that the consequences of vacating the amended

Arrival Routes would be severely disruptive in terms of cost, safety, and potential

environmental consequences, and the Cities have offered nothing to counter the

FAA’s contentions about these harmful effects.3 Accordingly, we exercise our

discretion to remand the amended Arrival Routes to the FAA without vacatur,

leaving the amended Arrival Routes in place while the FAA undertakes the proper

3 We grant the FAA’s Motion to Consider Two Documents (Doc. 76) in part with respect to the Stewart Declaration, which describes the potential effects of vacatur. We deny the motion as moot with respect to the internal FAA emails.

8 NEPA analysis and NHPA and section 4(f) consultation.

2. The Cities also argue that the FAA violated the Administrative Procedure Act,

NEPA, and due process by posting a disclaimer (the “Notice”) on the FAA’s

“Instrument Flight Procedure Information Gateway” website. The Notice states that

the FAA will not consider environmental comments submitted through this

particular website, which is meant for technical feedback from “civil aviation

organizations, affected military and civil air traffic control facilities, and aircraft

owners and sponsors.” Because the Notice does not have a direct and immediate

effect nor require immediate compliance, see MacLean, 543 F.3d at 1149, it is not a

final order within the meaning of 49 U.S.C. § 46110, and we lack jurisdiction to

review it. Accordingly, we dismiss the Cities’ claims regarding the Notice.

PETITION GRANTED IN PART AND DISMISSED IN PART.4

4 Each party shall bear their own costs.

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