[00:00:02] Speaker 02: Case number 15-1158 at L. City of Phoenix, Arizona, petitioner versus Michael P. Horta at L. Mr. Pundin for petitioner, City of Phoenix, Arizona. [00:00:12] Speaker 02: Mr. Adams for petitioners, Story Preservation Association at L. And Mr. McFadden for respondents, Michael Horta at L. Good morning. [00:00:22] Speaker 03: Judge Griffith will be participating in the oral argument by telephone, so you may direct questions to him if you wish, and he may have some for you. [00:00:32] Speaker 00: Excellent, thank you, your honor. [00:00:35] Speaker 00: Good morning and may it please the court. [00:00:37] Speaker 00: My name is John Putnam and I represent the city of Phoenix, Arizona. [00:00:40] Speaker 00: I wish to reserve a minute of my time for rebuttal and will be sharing three minutes of my time with counsel for the historic neighborhood petitioners, Mr. Adams. [00:00:50] Speaker 00: In 2014, FAA changed decades of flight patterns in the city of Phoenix by moving flight routes from industrial and agricultural areas to historic neighborhoods. [00:01:00] Speaker 03: And when did it do that? [00:01:02] Speaker 00: It did that on September 18, 2014, Your Honor, when it published routes in the Federal Register and also at that time actually started flying aircraft on that route. [00:01:16] Speaker 00: FAA departed from its own practice and legal requirements to avoid public review and implement these changes more quickly. [00:01:23] Speaker 00: When the new roads resulted in intense public scrutiny and controversy, FAA told the city that it had underestimated the noise impacts associated with the routes and was looking at changes to affect those concerns. [00:01:35] Speaker 03: So since the city knew that as of September, the routes had changed, [00:01:46] Speaker 03: Wasn't the city obligated to file a petition within 60 days if it wanted to challenge the new routes? [00:01:57] Speaker 00: excuse me, I don't believe it was your honor. [00:01:59] Speaker 00: In this circumstance, within 60 days, in fact, even within 30 days, FAA told the city that it recognized that the noise impacts were greater than it had expected and that it intended to listen to the community and listen to the city and go about a process to evaluate possible changes. [00:02:20] Speaker 06: It didn't change anything, the fact that there was [00:02:38] Speaker 00: We also have an obligation to exhaust administrative remedies and only bring in action when it's final. [00:02:45] Speaker 06: What did she do to exhaust administrative remedies? [00:02:48] Speaker 06: What action did she take during 60 days? [00:02:51] Speaker 00: The first action that we took within 60 days was to hold a joint public hearing and meeting with the FAA in the community at which FAA heard from the public [00:03:01] Speaker 00: heard from the city and indicated that they would get back to the city about next steps. [00:03:06] Speaker 00: Before the 60 days elapsed, the FAA sent a letter to the city of Phoenix and told the city that it would be evaluating changes and that, in fact, it actually did make a change in November 2014 before the 60 days elapsed and intended to move forward. [00:03:22] Speaker 03: So let me ask you, [00:03:25] Speaker 03: Were you relying on any regulation or guidance from the FAA indicating that it had an exhaustion requirement or it had a reconsideration procedure? [00:03:39] Speaker 00: At the initial stage, Your Honor, the primary reliance that we had was on FAA's commitment from the regional administrator, a high-level official within the FAA, that they were going to be evaluating and making potential changes to these documents. [00:03:56] Speaker 00: Subsequent to that point, in January... What documents? [00:03:59] Speaker 03: The flight plan? [00:04:00] Speaker 00: To the flight routes, which were essentially mapped. [00:04:03] Speaker 03: Right. [00:04:04] Speaker 03: OK. [00:04:05] Speaker 03: I'm just trying to understand, sort of, [00:04:08] Speaker 03: the city's thinking here when it knew that the FAA had made a decision on the flight paths that they had actually implemented them and that the city was representing that, in fact, some of the assumptions that the FAA had made were inaccurate. [00:04:34] Speaker 03: and subsequently produced a lot of information raising questions about some of the procedures that were used. [00:04:41] Speaker 03: But I'm trying to understand that what did the city think it could achieve when the regional administrator and others were saying things like, well, it looks like maybe we made a mistake. [00:04:58] Speaker 03: Those aren't his words, but in effect. [00:05:03] Speaker 03: In other words, doesn't that happen all the time with agencies? [00:05:06] Speaker 03: Not all the time, but an agency promulgates a rule. [00:05:10] Speaker 03: They get new information. [00:05:12] Speaker 03: They realize maybe they ought to re-examine this. [00:05:16] Speaker 03: But it doesn't eliminate the rule until they change the rule. [00:05:22] Speaker 03: And don't parties have to abide by the statutory time limit if they want to challenge the rule? [00:05:32] Speaker 00: So in this case, Your Honor, I think while that often does occur, the degree to which the agency got this wrong, I think, was unusual. [00:05:42] Speaker 00: And the fact that so very quickly the regional administrator of the FAA committed to the city that it would be undertaking a process to make changes and actually made those changes within 60 days and said others may be forthcoming. [00:05:57] Speaker 03: So the changes it made. [00:05:59] Speaker 03: correct me if I'm wrong, were that it discovered what was going on with the planes actually flying, and that they were not necessarily flying in the correct path that the September 14th map required. [00:06:16] Speaker 03: So the FAA required the planes to follow the September 14 maps. [00:06:24] Speaker 03: So there was no change in the September 14. [00:06:28] Speaker 03: It was just a conformance with September 14. [00:06:31] Speaker 03: Isn't that correct? [00:06:32] Speaker 00: So it was a change because there's not just the map with the route, but also procedures that the airlines and the pilots and the air traffic control have to follow associated with those. [00:06:44] Speaker 00: There was a change in the procedures that they identified. [00:06:48] Speaker 00: FAA has not been clear, and we've not been able to determine either from this record or through FOIA requests, exactly what that change was. [00:06:55] Speaker 00: But you're absolutely right. [00:06:56] Speaker 00: The intent was to try to get those aircraft back on the route that they should have been flying based on that map. [00:07:02] Speaker 06: It's usually a little hard to say that that is a change, that that's a new final decision, from which you're typically going to start running over when it is not doing anything facial, at least. [00:07:17] Speaker 00: So, Your Honor, under the precedent of this court and, for example, City of Dania Beach, to the extent that they make a decision, even an informal decision, that affects the way that aircraft are actually being flown, has a practical effect in the real world, that does make a difference. [00:07:38] Speaker 00: The way that their procedures were working were not keeping aircraft on that route, they were actually [00:07:44] Speaker 00: Um, diverting off that route and even more over the historic neighborhoods, uh, then the route would be otherwise. [00:07:51] Speaker 06: That's not a change. [00:07:52] Speaker 06: It's just a reiteration or a push for what they've done already in September. [00:08:01] Speaker 00: It's a change in the procedures, your honor, because their procedures originally were not adequate to keep the aircraft that would mean [00:08:13] Speaker 06: standard than it was from September 14th. [00:08:16] Speaker 00: So, Your Honor, I believe that the final decision came much later in the process when FAA had gone through its administrative process, including eventually the invocation of its order 7100.4a, which provides a formal procedure for reevaluating these routes and potentially mitigating problems and concerns with those routes. [00:08:37] Speaker 03: So that's your stage five argument? [00:08:40] Speaker 03: That's correct, Your Honor. [00:08:41] Speaker 03: Just so I'm clear. [00:08:43] Speaker 03: You're reading that to mean that what happened on September 14th is somewhat preliminary. [00:08:53] Speaker 03: They're final in the sense that they will stay in effect unless at stage five the FAA's evaluation shows that changes need to be made. [00:09:03] Speaker 03: If it does the stage five and decides no changes need to be made, [00:09:10] Speaker 03: and advises the people who are interested, namely the June letter, then you think the 60 days starts from that point. [00:09:19] Speaker 00: I do, Your Honor, and there's two pieces. [00:09:22] Speaker 00: One, order 7100.41 does provide that process and does allow for changes in routes to address concerns. [00:09:31] Speaker 00: The administrator of the FAA advised the city of Phoenix that that process would be used to address noise concerns that the city might have. [00:09:39] Speaker 00: So the city had reasonable grounds, like in paralyzed veterans or other decisions of this court. [00:09:44] Speaker 03: So let me just ask you, when did they tell you that? [00:09:48] Speaker 03: Was there a letter or something? [00:09:50] Speaker 00: There was a letter from the administrator of the FAA, Michael Huerta. [00:09:54] Speaker 03: And which letter is that, the January? [00:09:56] Speaker 00: That was the January letter that went to the city at that point where they said, we're going to consider noise as part of this process and you, the city, will be important part of that process. [00:10:07] Speaker 03: As part of stage five? [00:10:08] Speaker 00: As part of stage five, that post implementation analysis done through what was known as a performance-based navigation working group. [00:10:18] Speaker 00: The other piece that's important, I think, to understand is that one of the substantive concerns that the city has identified is that the National Historic Preservation Act has a provision that requires reconsultation and mitigation to the extent that impacts are discovered. [00:10:35] Speaker 00: after the original implementation of a particular decision. [00:10:39] Speaker 00: That can't happen before a decision is implemented. [00:10:43] Speaker 00: The city asked for that reinitiation in February of 2015 when it collected data and provided over 10,000 pages of information to the FAA regarding noise data, regarding the quiet in those neighborhoods and the importance of quiet to those neighborhoods from a historic perspective. [00:11:05] Speaker 00: FAA never responded to any of that information, any of those concerns. [00:11:11] Speaker 00: We believe that's one of the core violations in this case, a very open and shut question of administrative law. [00:11:20] Speaker 00: If they have an affirmative obligation to do these things, evidence is presented to them, and they ignore that information, that's about as simple a case of an arbitrary, capricious behavior. [00:11:31] Speaker 03: So let me ask you, as to your stage five argument, [00:11:36] Speaker 03: In its brief, the FAA basically tells us the way it interprets its guidance. [00:11:44] Speaker 03: Stage four is the last step, and stage five is sort of this typical, let's look at what happened and evaluate, and then if we see we need to make changes, we'll go back to the drawing boards and come up with a new final order. [00:12:01] Speaker 03: What's your response to that? [00:12:03] Speaker 00: So I have three very quick responses and see that I'm out of time here. [00:12:07] Speaker 00: The first is that's inconsistent with what the administrator of the FAA said at the time through that January letter that it would be addressing noise and would be potentially making changes to flight tracks. [00:12:19] Speaker 00: F.A.' [00:12:20] Speaker 00: 's current position is a post hoc rationalization from counsel, which this court generally will not consider. [00:12:26] Speaker 00: Second, the provision of the order itself, and if you take a look at addendum page 94, you'll see pretty clearly that it identifies the potential for addressing any causes or concerns that are identified in that stage five and any amendments. [00:12:41] Speaker 00: And third, they still have a legal obligation to address that issue under the Part 800 regulations implementing the National Historic Preservation Act. [00:12:52] Speaker 00: And with that, I'll turn it over to my colleague, Mr. Adams. [00:13:11] Speaker 05: Good morning, and may it please the Court. [00:13:12] Speaker 05: Matthew Adams for the Historic Neighborhood Petitioners. [00:13:16] Speaker 05: We shared the city's position on a number of the issues already addressed, but there are two additional issues where our position is somewhat distinct, and with the Court's permission, I'd like to start with those. [00:13:30] Speaker 05: First, on the jurisdictional question, so there's a clear difference of opinion between the city and the FAA as to who said what to whom and when. [00:13:39] Speaker 05: But there's no doubt that the historic neighborhood petitioners were not involved in any of those discussions. [00:13:46] Speaker 05: From October 2014, when the FAA first made representations that it would change the new routes or explore adjustments, as Mr. Putnam said, until June of 2015, when the city filed its petition for review, we reasonably understood that the new routes remain subject to change and that the FAA and the city were working on that. [00:14:09] Speaker 03: So let me just be, what was the significance of your first sentence that your organization was not involved, involved when and what? [00:14:19] Speaker 05: So much of the communication between the city and the FAA took place in a series of letters, which are in the administrative record. [00:14:28] Speaker 05: The historic neighborhood petitioners were not involved in that. [00:14:30] Speaker 05: We don't know what representations were made to whom or when. [00:14:34] Speaker 05: There were, however, two distinct points during that. [00:14:37] Speaker 03: All right, but was your organization aware of the September 14th change? [00:14:44] Speaker 05: We were, Your Honor, because they were flying directly over our homes. [00:14:49] Speaker 03: Precisely. [00:14:49] Speaker 05: Yes. [00:14:51] Speaker 03: So why weren't you obligated to file within 60 days? [00:14:56] Speaker 03: Particularly when you were not involved in the communications between the city and others and FAA representatives. [00:15:06] Speaker 05: So although we were not involved in the letters back and forth, there were two distinct points where the FAA and the city made specific representations to us. [00:15:15] Speaker 05: And those were in two public meetings. [00:15:18] Speaker 05: The first was in October of 2014, October 16th. [00:15:23] Speaker 05: So this would have been about 30 days after the plane started flying. [00:15:29] Speaker 05: Well, 28 days. [00:15:30] Speaker 05: And the FAA came to the City of Phoenix City Council Chambers, acknowledged the community concerns, and it said, we're going to work with the city to explore adjustments to these routes. [00:15:40] Speaker 06: I'm not sure how that helps you in jurisdictions. [00:15:43] Speaker 06: You still have to be within 60 days of the final order. [00:15:47] Speaker 06: Your Honor. [00:15:48] Speaker 06: And if you are or are not involved in whatever is going on after the final order, I don't see how you're any better off. [00:15:55] Speaker 05: So, Your Honor, we believe these are reasonable grounds supporting a later filing date for us. [00:16:04] Speaker 03: In other words, all right, so you've got the October meeting and what's the second one? [00:16:08] Speaker 03: Just so I'm clear. [00:16:09] Speaker 05: So December 16th, 2014. [00:16:12] Speaker 05: This is the meeting at which the FAA regional administrator came to the City of Phoenix and said the process was not enough. [00:16:20] Speaker 05: We didn't anticipate this being as significant as it was and committed to continue working on this. [00:16:25] Speaker 05: And Your Honor, I see that I'm running a little bit low on time. [00:16:29] Speaker 03: Please continue so we get to your position. [00:16:32] Speaker 05: But it's important to note that the City Council at that meeting where the FAA appeared [00:16:38] Speaker 05: passed a resolution directing its staff to work with the FAA to return to the original routes. [00:16:45] Speaker 05: And that's at Joint Appendix 772. [00:16:48] Speaker 05: So those are the things that we were aware of. [00:16:52] Speaker 05: And so based on those two data points, we had reasonable grounds, we believe, for a later filing date, particularly under this court's decisions in Safe Extensions and Paralyzed Veterans. [00:17:07] Speaker 05: Unless your honors have further questions on that, I'll just briefly touch on the merits issue on which we differ slightly from the city. [00:17:17] Speaker 05: And that is the issue of public controversy. [00:17:22] Speaker 05: The FAA proceeded on a categorical exclusion. [00:17:24] Speaker 05: Categorical exclusion can't be used in extraordinary circumstances. [00:17:28] Speaker 05: FAA Order 1050.1E says that one such circumstance is the existence of significant controversy on environmental grounds. [00:17:39] Speaker 05: But if you look at the administrative record of the agency's analysis before the planes started flying, [00:17:47] Speaker 05: There is no evidence of any real consideration of this. [00:17:51] Speaker 05: In fact, there is an acknowledgement that local citizens and community leaders were not aware of the new routes. [00:17:59] Speaker 05: And then, as Mr. Putnam says, there was an outpouring of polar controversy immediately after the plane started flying. [00:18:07] Speaker 05: And although the FAA subsequently reevaluated and issued a couple of errata to its initial environmental analysis, none of those reevaluations properly addressed the public controversy that is indisputable. [00:18:24] Speaker 05: You know, I'll reserve whatever time is remaining to us. [00:18:27] Speaker 03: Thank you. [00:18:36] Speaker 03: All right, Council for the FAA. [00:18:39] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:18:41] Speaker 01: My name is Lane McFadden. [00:18:42] Speaker 01: I represent the Federal Respondents. [00:18:44] Speaker 01: With me at Council table is Miss Jessica Rankin of the Federal Aviation Administration. [00:18:50] Speaker 01: The Federal Aviation Administration's final order in this case, implementing the routes and representing its conclusions as to all of its environmental review and all of its safety and technical review of these procedures, was issued in September 2014. [00:19:03] Speaker 01: And nothing in either the briefs or the argument presented to you today undercuts that. [00:19:09] Speaker 03: Well, let me just ask a couple of things here. [00:19:15] Speaker 03: September 14, as of that date, [00:19:21] Speaker 03: there had been no communication between the FAA and the city, advising the city of these routes, other than through a low-level employee who said, A, he had no authority to speak for the city, and B, through, or are these one and the same, [00:19:50] Speaker 03: the state officials. [00:19:54] Speaker 03: And your position in your brief is the FAA had no obligation to contact city officials. [00:20:08] Speaker 03: Is that correct? [00:20:09] Speaker 01: Not entirely, Your Honor. [00:20:10] Speaker 03: All right, so what was your obligation to contact city officials before September 14th? [00:20:17] Speaker 01: The obligation, the only regulatory obligation to consult with the city comes from the regulation implementing the National Historic Preservation Act. [00:20:26] Speaker 01: If you look at 36 CFR, 800.2 CFR. [00:20:29] Speaker 03: And so what did you do? [00:20:31] Speaker 01: So the city's aviation department representative. [00:20:35] Speaker 03: Right, that's this low level employee. [00:20:37] Speaker 01: Well, that is the explanation given to us now after the fact. [00:20:40] Speaker 03: Well, who was he? [00:20:42] Speaker 01: He was the noise abatement specialist who worked for the aviation department. [00:20:46] Speaker 01: He was specifically contacted because the concern that we anticipated the city would have would be about aircraft noise. [00:20:53] Speaker 01: And so we consulted with the aviation department and with the airport authority, the two components of the city that FAA reasonably believed would know the most about aircraft noise and would understand the procedure. [00:21:04] Speaker 03: And the assumption was he would notify his boss [00:21:08] Speaker 03: Yes, of course. [00:21:09] Speaker 03: Well, I'm just asking. [00:21:10] Speaker 01: Yes, that was the assumption. [00:21:12] Speaker 03: Who would then notify the city officials? [00:21:15] Speaker 03: I mean, the mayor or the city council? [00:21:18] Speaker 01: Well, consider it from FAA's perspective. [00:21:21] Speaker 01: The city's representative was involved in the design of the procedures in 2012. [00:21:24] Speaker 01: Then in August 2012. [00:21:26] Speaker 01: Who was that? [00:21:27] Speaker 01: The same aviation department employee, Mr. Davies. [00:21:30] Speaker 03: And could I just be clear, so I know, what level is this employee? [00:21:37] Speaker 03: In other words, if you were to look here in DC, they have a noise unit, but it's not a policy-making unit. [00:21:52] Speaker 01: Sure. [00:21:53] Speaker 01: I mean, I don't know the specific answer to your question about this level. [00:21:56] Speaker 03: No, but I'm trying to draw the distinction between a bureaucrat who has no policy-making authority and someone who can give you numbers and data because that's his or her area of specialty, specialization. [00:22:11] Speaker 01: I think if Phoenix's government works the way that DC's government does, the only people with ultimate policy-making authority are either the mayor or members of the city council. [00:22:20] Speaker 01: and everyone below them would qualify as a bureaucrat. [00:22:23] Speaker 03: So when the FAA is deciding to change flight paths for good safety reasons, why wouldn't the statutes and your own procedures contemplate notifying policy-making officials? [00:22:48] Speaker 01: They don't, Your Honor, and I think it's because that... Otherwise it's sort of a stealth operation. [00:22:53] Speaker 03: All of a sudden you wake up and the plane's flying over your house and you didn't even know about it. [00:22:58] Speaker 01: But the FAA's burden isn't to understand the inner workings of each local government with which it interacts. [00:23:04] Speaker 03: No, but you admit it has an obligation to consult with the city. [00:23:11] Speaker 03: And you're interpreting the city to mean [00:23:16] Speaker 03: a low-level official with no policy-making authority. [00:23:21] Speaker 01: I just want to be clear about that. [00:23:24] Speaker 01: But this person told your [00:23:32] Speaker 03: clients. [00:23:33] Speaker 03: He had no authority to speak for the city. [00:23:35] Speaker 01: No, Your Honor. [00:23:35] Speaker 01: Uh, that that statement was made after the FAA's final order was made by other members of the city who said retroactively this person didn't didn't speak for us. [00:23:47] Speaker 01: There was no representation made to the FAA from August 2013 when the entirety of the environmental review was provided to the city's aviation department through the next 13 months before the procedures were implemented. [00:24:00] Speaker 01: The city said nothing to the FAA objecting to or raising further questions. [00:24:05] Speaker 03: But you understand what I'm getting at. [00:24:06] Speaker 01: Yes, Your Honor. [00:24:07] Speaker 03: Congress passes all these statutes saying, you know, affected people should be notified so that their input can be considered before the agency makes a decision. [00:24:21] Speaker 03: And you can interpret that in a way that says, yes, we let the janitor know, or yes, we let the low-level bureaucrat know. [00:24:30] Speaker 03: But the rest of the city is totally oblivious to this plan. [00:24:38] Speaker 03: And the first notion it has is when they hear these planes coming. [00:24:42] Speaker 01: Well, the question is whether that is the fault of some failure on the FAA's part to certify its legal obligations. [00:24:50] Speaker 01: If we had had significant. [00:24:51] Speaker 03: Well, what I'm trying to understand, though, is what the FAA thinks is its legal obligation, where Congress has passed a statute [00:25:01] Speaker 03: that talks, at least one way to read it is to notify the officials who can speak on behalf of the city and represent its position to the FAA. [00:25:20] Speaker 03: Why isn't that? [00:25:23] Speaker 01: Your Honor, many of the public notification provisions you're talking about apply in circumstances other than these. [00:25:30] Speaker 01: They apply where there's the potential for adverse effects. [00:25:32] Speaker 03: You told me when you started that the National Historic Preservation Act required your client to consult with the city. [00:25:44] Speaker 03: That's where we started. [00:25:46] Speaker 03: So I'm trying to understand how you're interpreting that statute by Congress. [00:25:53] Speaker 03: in terms of the FAA obligations to provide prior notice. [00:25:59] Speaker 01: Well, two points of clarification. [00:26:00] Speaker 01: The local government consultation requirement is regulatory. [00:26:03] Speaker 01: It doesn't come from the statute. [00:26:04] Speaker 03: Well, you told me you had an obligation [00:26:08] Speaker 03: to, I wrote it down, to consult the city under the National Historic Preservation Act. [00:26:14] Speaker 01: Under the regulations implementing that statute, yes. [00:26:17] Speaker 01: So 800.2 C-3 requires us to contact a representative of the local government, which we believed the city's aviation department was. [00:26:25] Speaker 03: So what do you think Congress meant? [00:26:26] Speaker 03: I just want to be clear about that. [00:26:28] Speaker 03: What do you think Congress meant? [00:26:30] Speaker 01: That is regulatory language. [00:26:35] Speaker 03: And what does the statute say? [00:26:37] Speaker 01: The statute doesn't specify the mechanisms of consultation. [00:26:41] Speaker 03: What does it say? [00:26:42] Speaker 01: I don't have it in front of me. [00:26:43] Speaker 03: All right, but I'll go look at it. [00:26:46] Speaker 03: But I mean, my point is that if the statute, and I'm just looking to see if I have it handy, says [00:26:56] Speaker 03: We'll get to that. [00:26:57] Speaker 03: So the agency comes up with a regulation that says obligation to consult with the city. [00:27:05] Speaker 01: Obligation to consult with a representative of the local government, yes. [00:27:08] Speaker 03: A representative of the local government. [00:27:11] Speaker 03: Right. [00:27:13] Speaker 03: Is that a representative who could speak on behalf of the local government? [00:27:17] Speaker 01: There's no more language in the law requiring that. [00:27:20] Speaker 03: But you see what I'm getting at. [00:27:22] Speaker 03: You notified somebody who has no authority to make any representation on behalf of the city as to what its position would be regarding this new flight plan. [00:27:33] Speaker 03: You got data from this person, who I'm assuming [00:27:40] Speaker 03: would naturally give the agency the data he had. [00:27:44] Speaker 01: Well, if you indulge me a moment to explain what occurred in this scenario. [00:27:49] Speaker 01: The city was present through the aviation department at the big meeting where the procedures were initially designed in 2012. [00:27:55] Speaker 01: Then there was a lot more work done. [00:27:57] Speaker 03: So you say you don't know who from the department was represented. [00:28:03] Speaker 03: Is that correct? [00:28:05] Speaker 01: No, we have. [00:28:07] Speaker 01: This is all if you look at J 11 20 and the following pages, the names are all given primarily. [00:28:12] Speaker 01: It was a gentleman named Jim Davies, who was the noise abatement specialist at the city's aviation department. [00:28:17] Speaker 03: We've been talking about the non policy making person. [00:28:22] Speaker 06: Well, let me tell you, are you aware of anyone above that person who had [00:28:27] Speaker 06: that's right your honor and if you look at for example j307 where we provided the aviation department with all the environmental [00:28:44] Speaker 01: your honor suggested the city provided the FAA data was actually the other way around. [00:28:49] Speaker 01: We gave them all of our information, specifically a Google Earth file with all of the exact locations of all the anticipated noise impacts, exactly where they'd be in the city and how big they would be and what they would look like. [00:29:00] Speaker 01: And he wrote back to say, thank you, I'm sharing this with the city's NEPA specialists to ensure that everyone in the city with knowledge in this area has been consulted. [00:29:08] Speaker 03: And then, the only times we heard back from the city... I know he said he was going to send it to the NEPA specialist. [00:29:14] Speaker 03: Did he say that last phrase as well? [00:29:17] Speaker 01: He may not have. [00:29:18] Speaker 03: Yeah, I thought that was an elaboration by counsel. [00:29:20] Speaker 01: Sorry, I apologize. [00:29:21] Speaker 03: No, I mean, that's serious. [00:29:23] Speaker 03: We're trying to understand what happened. [00:29:26] Speaker 03: He said he was going to pass it on. [00:29:30] Speaker 03: to the NEPA specialist. [00:29:32] Speaker 03: He didn't say anything about so the city officials would know what was going on. [00:29:38] Speaker 01: No, there was never any discussion of his chain of command. [00:29:42] Speaker 01: It was staff to staff. [00:29:43] Speaker 01: That's right. [00:29:46] Speaker 01: And so, of course, after the fact, we discovered that none of the proper people above him had been informed up to the highest decision-making levels of the city. [00:29:57] Speaker 01: But we had no indication of that at the time. [00:30:00] Speaker 03: So I just need to be clear how this federal agency is proceeding, where its own regulation, you tell me, say it has an obligation to consult with the city. [00:30:12] Speaker 03: And its interpreting this to mean it can consult [00:30:16] Speaker 03: with a non-policy-making person. [00:30:22] Speaker 03: In other words, it's a data gathering obligation. [00:30:26] Speaker 03: It's not an obligation to notify public officials of the agency's action, opposed action. [00:30:35] Speaker 01: Two points on that, Your Honor. [00:30:36] Speaker 01: I mean, first of all, the regulations are not, by the way, promulgated by the Federal Aviation Administration. [00:30:42] Speaker 01: These are the advisory council's regulations [00:30:45] Speaker 01: govern all federal agencies when they're implying the National Historic Preservation Act. [00:30:50] Speaker 01: But in those regulations, farther up the page, make very clear that the extent of consultation and the amount of effort put into consultation must be proportionate to the anticipated impacts. [00:31:04] Speaker 01: And here throughout the process, from the very beginning to the point where the procedures were implemented, [00:31:09] Speaker 01: all indications to the Federal Aviation Administration was that there would be no adverse impacts because the noise impacts were so low. [00:31:16] Speaker 03: So let me ask you, do you live in this region? [00:31:18] Speaker 01: No, I do not. [00:31:21] Speaker 03: If you lived in this region, you would know [00:31:25] Speaker 03: that noise from airplanes is a sensitive public issue. [00:31:30] Speaker 01: I'm sorry, Your Honor. [00:31:30] Speaker 01: I live in this region. [00:31:32] Speaker 01: I thought you meant whether I lived in Phoenix. [00:31:33] Speaker 03: Sorry. [00:31:34] Speaker 01: I'm aware of the concerns about aircraft noise in DC. [00:31:37] Speaker 01: Certainly. [00:31:38] Speaker 03: So what may be five decibels of an increase on a chart may not be viewed in the same way by the residents living in the area. [00:31:53] Speaker 01: There's no dispute about that. [00:31:54] Speaker 01: And the position the petitioners have taken is that the FAA's entire way of measuring noise is wrong, precisely because some people are more sensitive to it than others. [00:32:04] Speaker 01: And it can be disturbing to some people. [00:32:06] Speaker 03: No, I understand your point about they don't actually challenge your methodology here. [00:32:11] Speaker 01: And because of that, the regulatory standards for what noise is significant and what noise is adverse control here. [00:32:19] Speaker 03: And so once you apply the methodology that they do not challenge, the agency has fulfilled its [00:32:27] Speaker 03: legal obligations. [00:32:29] Speaker 01: If the results are such that there's no anticipating significant environmental impact, which was true here, and no anticipated adverse effect on historic properties, which was true here. [00:32:39] Speaker 01: So the agency has fulfilled all of its regulatory obligations in that context. [00:32:43] Speaker 01: If there had been bigger impacts, there would have been more consultation required, and the burden on the agency would have been greater than it was in this circumstance. [00:32:51] Speaker 03: So moving after September 14, what I hear being said [00:32:57] Speaker 03: and this is my language, not petitioner's language, they were lulled into believing that the FAA was taking its concerns seriously and was not simply going to deep-six them, but was going to substantively address them. [00:33:20] Speaker 03: And so they had these relationships and meetings and letters [00:33:28] Speaker 03: And it's that lulling that caused them not to rush to court, but rather to try to work with the agency. [00:33:39] Speaker 03: And at the point it was clear that the agency was not going to address these claims seriously as they had thought, then they did come to court. [00:33:56] Speaker 01: That is their description of events, Your Honor. [00:33:59] Speaker 01: The dates they gave you, where they were lulled, as Your Honor put it, for the historic neighborhood petitioners, the latest one was the public meeting of December 2014. [00:34:10] Speaker 01: So let's accept their fury that that gave them reasonable grounds not to sue 60 days from September, than they were obligated to sue 60 days from [00:34:18] Speaker 01: December when they saw no changes to the procedures and no further information from the FAA forthcoming. [00:34:23] Speaker 01: The city had much more formal contact with the Federal Aviation Administration and it received letters from us in January making very clear not only that we were not going to undo the old procedures, but we were not going to revisit consultation under the National Historic Preservation Act. [00:34:40] Speaker 01: We were not going to reconsider the environmental review of these procedures. [00:34:45] Speaker 01: They were [00:34:46] Speaker 01: most certainly on notice of what they now claim is their position that we should have reconsidered in January. [00:34:54] Speaker 03: Could the city not reasonably have read the January letter to say the FAA has decided that in the interest of safety, [00:35:08] Speaker 03: flight plan changes are necessary. [00:35:11] Speaker 03: So we're not going back to the situation we had before September 14th. [00:35:17] Speaker 03: But on the other hand, we are, i.e. [00:35:20] Speaker 03: the FAA is open to consider adjustments to the flight paths or the timing or whatever. [00:35:29] Speaker 01: The letter importantly says one additional thing, which is that if the FAA considers adjustments, when it implements them, they will be the part of a new process and a new decision making activity that will lead to a new final agency action. [00:35:44] Speaker 01: The previous action is done. [00:35:47] Speaker 01: It is final and has been final. [00:35:50] Speaker 01: And we were happy to talk about future decisions that the agency might make. [00:35:54] Speaker 06: There is a possibility of future proceedings if [00:36:00] Speaker 06: That's right, your honor. [00:36:03] Speaker 01: That was for that had been always our position that that could happen in the future. [00:36:07] Speaker 01: You could challenge those changes, but so I'm not going to court. [00:36:13] Speaker 03: The city and historic president. [00:36:16] Speaker 03: Association should have filed a petition for a new rulemaking. [00:36:22] Speaker 01: They could have done that, but they also had to file a petition with this court within 60 days. [00:36:26] Speaker 03: No, I'm supposing they decided not to do that. [00:36:31] Speaker 01: That is what happened. [00:36:31] Speaker 01: They decided not to do that. [00:36:33] Speaker 03: Then they could, well, they are in court now. [00:36:37] Speaker 03: They could have gone to the agency and filed, I don't know what the formal term is, but a request for a new rulemaking. [00:36:48] Speaker 01: I suppose they could have done that. [00:36:50] Speaker 03: No, I'm trying to think practically. [00:36:52] Speaker 01: Right. [00:36:53] Speaker 01: I think I was asking you. [00:36:54] Speaker 01: Yeah. [00:36:54] Speaker 01: Yeah. [00:36:55] Speaker 01: Yeah. [00:36:56] Speaker 01: I suppose they could have done that. [00:36:58] Speaker 06: These regulations in effect are in effect for years and they come in and say, look, aircraft are bigger. [00:37:07] Speaker 06: Now they're flying different times. [00:37:10] Speaker 06: We need a new flight plan. [00:37:13] Speaker 06: Is there a procedure by which they could get a new? [00:37:16] Speaker 06: I thought I was going to say they could petition for a new rulemaking or something. [00:37:20] Speaker 01: Well, the reason I hesitated in the questions, the question is there. [00:37:22] Speaker 01: There aren't FAA regulations that provide a process for that. [00:37:26] Speaker 01: There's no, they did send us a letter asking us to reconsider, but there are no regulations governing how to respond to that. [00:37:35] Speaker 06: There is no formal procedure set forth whereby they can do that. [00:37:37] Speaker 01: Correct. [00:37:38] Speaker 03: So, since the regulations don't provide for reconsideration, they don't provide a process for filing a petition for a new rulemaking, what is a city supposed to do? [00:37:54] Speaker 01: It should come to this court. [00:37:56] Speaker 06: uh... well well well well well well well well well well well well well well well well well well well well well well well well well well well well well well well well well well well [00:38:20] Speaker 06: They're not some other way they can get the agency to think about the problems and got to fix them or see if they're there. [00:38:28] Speaker 01: If, for example, the environmental impacts have changed over the years, the agency has obligations outside of its own regulations to reconsider or to revisit in light of new information. [00:38:37] Speaker 06: Is there a way in which the city can get them to do that? [00:38:40] Speaker 01: But the city could ask them to do that. [00:38:42] Speaker 01: And if the FAA declined, there would be judicial review, I think, of the question of whether the FAA had appropriately decided this was not new information requiring reconsideration. [00:38:52] Speaker 03: So what we have is a situation where there is sort of a black hole. [00:38:59] Speaker 03: And it's not clear what an affected party is to do in order to bring the agency [00:39:10] Speaker 03: to reconsider, and yet what the record shows here is that the city wrote letters, it submitted information, and there was a response by FAA. [00:39:28] Speaker 03: It participated in meetings, it even went to the city council, and then it set up this new working group. [00:39:35] Speaker 03: So aren't those actions by the FAA [00:39:40] Speaker 03: sufficient in the absence of any procedural requirements promulgated by the FAA to stay this 60-day period until the FAA says, we've looked at your information and we're not going to make any changes. [00:40:03] Speaker 03: At that point, then they come to court. [00:40:08] Speaker 01: That, Your Honor, would be a much broader reading of the reasonable grounds provision than this Court has ever before held. [00:40:14] Speaker 03: Well, have we ever had a situation where the agency hasn't had some sort of regulatory scheme that gives notice to the public about how to proceed in order to get the agency to reconsider [00:40:34] Speaker 03: in order it's issued. [00:40:36] Speaker 01: Well, I don't know, Your Honor, but the question is whether the affected parties have any provision for how to get judicial relief, and that is very clear. [00:40:46] Speaker 01: That's the provision for review provision in 46.10a. [00:40:50] Speaker 01: If they want the agency to do something else, and it depends on the specific nature of what they're asking the agency to do, but if they want them to stop doing what they had previously decided to do, that is a matter for the courts, and Congress is very clear. [00:41:02] Speaker 01: There's a very short section of limitations. [00:41:04] Speaker 01: The reply brief cites this court's recent opinion in the National Federation for the Blind, where the National Federation for the Blind said that there was some ambiguity about what court to go to, and they were late to this court by 11 days. [00:41:16] Speaker 01: And this court held that if that was the case, the only appropriate course of action was to protect yourself by filing in both courts simultaneously. [00:41:23] Speaker 01: This court has routinely in reasonable grounds cases [00:41:26] Speaker 01: held that you must preserve your rights for judicial review first, and then you can worry after the fact about what other recourse you might have from the agency. [00:41:34] Speaker 01: The same holds true here. [00:41:36] Speaker 01: The appropriate course of action is to file a petition for review, and then after you've done that, you can still talk to the Federal Aviation Administration. [00:41:42] Speaker 01: There are numerous examples of that occurring right now at other airports in the country. [00:41:47] Speaker 03: So as soon as the city started talking to the FAA [00:41:52] Speaker 03: employee. [00:41:54] Speaker 03: That employee should have told the city, can't talk to you, can't do anything, go to court. [00:42:00] Speaker 01: I don't think that was the FAA employee's responsibility, Your Honor. [00:42:04] Speaker 01: It is incumbent on the petitioners to know. [00:42:06] Speaker 03: Well, if I had been in the legal office and I went to look to the FAA's regulations, [00:42:12] Speaker 03: I wouldn't have found anything. [00:42:14] Speaker 01: Right. [00:42:14] Speaker 01: Because the judicial review provision is in a statute, and the city attorney's office could easily have looked there, and it says very clearly, you have 60 days from the order issued. [00:42:22] Speaker 03: Right. [00:42:23] Speaker 03: So when the, I mean, I'm just trying to understand what's going on here. [00:42:27] Speaker 03: The FAA is taking a view that it has no responsibility to notify policy-level making officials who live in the jurisdiction that will be directly affected by an order issued by the agency. [00:42:41] Speaker 01: It is taking that position specific to circumstances such as these where there was no significant environmental effect, no adverse effect on historic properties, no effect of any kind. [00:42:51] Speaker 06: But it did notify the relevant departments of the city. [00:42:55] Speaker 06: It certainly did. [00:42:56] Speaker 06: With that respect to who the individual is in those departments, it notified them. [00:42:59] Speaker 01: That's correct. [00:43:00] Speaker 01: And received no complaints back from that person or anyone else at the city indicating there were any objections of any kind for more than a year. [00:43:07] Speaker 01: The FAA was never given any indication that Moore was asked of it from the city. [00:43:12] Speaker 01: It certainly would have responded if it had been. [00:43:14] Speaker 03: Well, if the city had known. [00:43:16] Speaker 03: I understand your point, but I'm trying to understand what it means to notify an affected party. [00:43:24] Speaker 01: that that requirement varies depending on the level of anticipated environmental effect. [00:43:29] Speaker 01: And you have for you a case of the very lowest possible anticipated environmental effect, one that triggers no obligations. [00:43:35] Speaker 06: There were a lot of effect here. [00:43:38] Speaker 06: Is there anybody other than those departments that you would have notified anyone? [00:43:42] Speaker 01: I don't think we would have been required by law to, but there would have been public notice requirements. [00:43:47] Speaker 01: And I think you would expect, as a practical matter, the Parks Department or the Historic Preservation Officer to show up to those meetings and get involved. [00:43:55] Speaker 01: But in this situation, we didn't have to identify those individuals separately, look them up, and try to seek them out. [00:44:02] Speaker 01: The obligation was to find a representative of the local government who understood this subject area. [00:44:08] Speaker 01: And that was certainly the person that the FAA talked to. [00:44:20] Speaker 01: questions. [00:44:21] Speaker 03: Yeah I do have one further question. [00:44:23] Speaker 03: What about this June letter? [00:44:25] Speaker 03: Does that have any effect in the nature of a final decision by the agency such that a new 60-day period would start to run? [00:44:39] Speaker 01: No. [00:44:39] Speaker 01: For it to have [00:44:41] Speaker 01: For it to have that effect, it would have to impose some legal consequences on the city, and it did not. [00:44:47] Speaker 01: They say, I think they concede in the reply briefs that it says nothing as to any of the topics they're concerned about. [00:44:54] Speaker 01: And they say, but implicitly, by not addressing those topics, you've rejected our reconsideration request. [00:45:00] Speaker 01: And that gets back to this court's decision in pro products decades ago, where it said that you can't simply repeatedly request reconsideration and keep restarting your statute of limitations. [00:45:10] Speaker 03: So if this court accepts the FAA's position in this case and the city gets, and the city, I'm hearing something, the city obtains no relief in terms of [00:45:30] Speaker 03: for example, a remand for the agency to reconsider, address, whatever, then what is the option available to the city to get FAA to reconsider these flight plans? [00:45:48] Speaker 03: I'm just not sure what it is. [00:45:49] Speaker 03: I mean, 30 days from now, when FAA says we're not changing anything, then the city has to come back to court. [00:45:56] Speaker 03: I think the city has already... And then we get the 60-day argument all over again. [00:46:00] Speaker 01: I mean, the city has already, I think, provided the FAA what information it believes requires reconsideration, and the FAA has already been through that. [00:46:08] Speaker 03: No, no, no. [00:46:09] Speaker 03: In fairness counsel, the city submitted information, and there has been no response. [00:46:15] Speaker 01: That's true, Your Honor. [00:46:16] Speaker 01: I can represent to you that it has been considered, but... No, no, no, no. [00:46:18] Speaker 03: No represent to me. [00:46:20] Speaker 03: Only give me what's in the record. [00:46:22] Speaker 03: What I'm trying to understand is what happens now. [00:46:26] Speaker 03: Just hypothetically, everybody in Phoenix is up in a roar about these flight paths. [00:46:37] Speaker 01: I mean, given that there are no procedures for this, they can resubmit their request, require a response. [00:46:45] Speaker 03: They've already sent it. [00:46:46] Speaker 03: They can't require, Council, they can't require a response. [00:46:50] Speaker 01: That's true, Your Honor. [00:46:50] Speaker 01: I don't know. [00:46:51] Speaker 01: I mean, the FAA can send a written response. [00:46:53] Speaker 03: So there is nothing the city can do because it's lost in court. [00:46:59] Speaker 03: And the only thing it can do is, what, the next election vote? [00:47:05] Speaker 01: Unless there is new information that the original understanding of the environmental impacts was wrong in some fashion? [00:47:12] Speaker 03: Well, your own representative told the city that they had underestimated the impact, that they didn't realize. [00:47:22] Speaker 01: And he was clearly talking about the fact that there was a public uproar, that we'd asked the city's representative and the airport authority, do we expect any controversy? [00:47:31] Speaker 01: They said no. [00:47:31] Speaker 03: So you understand the difference between the FAA sticking to its substantive position and having some process [00:47:40] Speaker 03: I don't understand the process here. [00:47:43] Speaker 03: Does the City of Phoenix have to go to Congress and get Congress to pass a statute telling the FAA to consider the City of Phoenix's concerns? [00:47:59] Speaker 03: How does it get any... Your Honor, I appreciate your concern for people of Phoenix, but I think that the answer to my question... No, I'm not concerned only for the people of Phoenix. [00:48:08] Speaker 03: I'm concerned generally about a federal agency making decisions that affect people's lives where officials who have policy-making responsibilities have no prior notice. [00:48:25] Speaker 03: And then... [00:48:26] Speaker 03: when they seek to have the federal agency review what it's done, they get a lot of nice language, but no substantive response. [00:48:47] Speaker 03: Did you hear Judge Griffith? [00:48:49] Speaker 03: I didn't. [00:48:50] Speaker 03: I'm sorry. [00:48:50] Speaker 03: Judge Griffith? [00:48:51] Speaker 04: I have a question. [00:48:54] Speaker 04: Hasn't the City of Phoenix actually gone to Congress about this and gotten some relief? [00:49:01] Speaker 04: And I couldn't find anywhere in the record that the FAA ever provided the report that Congress directed that it provides within 90 days of the legislation about this issue. [00:49:16] Speaker 04: Did I miss it or what happened there? [00:49:18] Speaker 04: What are we to make of congressional involvement [00:49:21] Speaker 01: in this dispute. [00:49:26] Speaker 01: The response to the newer legislation, of course, is not in the record, because it's all years after the decision that's in dispute before this Court. [00:49:35] Speaker 01: I am informed that that report is still being worked on, and I think we can expect it forthcoming. [00:49:41] Speaker 01: But I think that it's a mistake to retroactively impute any later congressional action to the legality of the FAA's decision at the time. [00:49:50] Speaker 06: No, that's not what... No, that didn't mean the record, or in either brief, about that further congressional decision. [00:49:55] Speaker 06: That's right. [00:49:56] Speaker 06: Correct. [00:49:56] Speaker ?: Right. [00:49:56] Speaker 03: No, this is all in the context of my question, that if your position in this court were to be accepted by the court so that the petitions are denied, [00:50:13] Speaker 01: Let me answer this very carefully. [00:50:15] Speaker 01: My position in this case and the FAA's position in this case is specific to a situation where you have anticipated environmental impacts below any threshold of concern established by duly promulgated regulation. [00:50:29] Speaker 01: and no evidence to the contrary. [00:50:31] Speaker 01: They submitted other evidence based on other methodologies, but there's no serious challenge to the DNL metric or its application here. [00:50:38] Speaker 01: In any other circumstance where you have an expectation of the possibility of significant environmental impacts under NEPA, [00:50:45] Speaker 01: adverse effects under the National Historic Preservation Act, those would all be very different cases. [00:50:50] Speaker 01: The agency would have different obligations. [00:50:52] Speaker 01: It would have more obligations to consult, more obligations to document and publicly disclose anticipated environmental impacts. [00:50:59] Speaker 01: All of those cases would be different than the situation in Phoenix, where there is no doubt the people in Phoenix that are experiencing an increase in noise are very upset about the increase in noise. [00:51:09] Speaker 03: But the increase... So the city's mistake, as it were in your view, [00:51:14] Speaker 03: was not to cite the NEPA statute in its request for reinitiation? [00:51:23] Speaker 01: No. [00:51:23] Speaker 01: The city's mistake was not to petition for review right away. [00:51:27] Speaker 03: Petition in court? [00:51:29] Speaker 01: Yes. [00:51:32] Speaker 01: That is its statutory obligation if it ever seeks to get remedy from a court. [00:51:36] Speaker 03: So maybe the agency, since it hasn't promulgated any regulations about anything, ought to let entities know. [00:51:44] Speaker 01: Well, in formal decision notices that are accompanied by bigger environmental impacts, like an environmental assessment, you do see that language. [00:51:53] Speaker 01: That's part of the language. [00:51:54] Speaker 03: But my point is, this process is designed so that you avoid all of those obligations. [00:52:02] Speaker 01: By this process, Your Honor is referring to. [00:52:04] Speaker 03: Because you don't need an EA, you don't need an EIS, you have a categorical exclusion. [00:52:14] Speaker 01: Yes, and a categorical exclusion is, by definition, a decision where there's no environmental impacts of concern and nothing more needs to be done under the federal environmental statutes. [00:52:23] Speaker 01: And that is a perfect, that is, categorically excluded actions are taken all the time by federal agencies, and there are innumerable such episodes. [00:52:31] Speaker 01: And this court has been clear that an agency's order can take many forms. [00:52:34] Speaker 01: It is concerned about the legal consequences on petitioners and not whether it contains boilerplate language or whether it looks like an order. [00:52:42] Speaker 01: That law is clear, which was what makes the publication and implementation of these procedures the order and not the prior environmental reports by the agency because those weren't issued. [00:52:53] Speaker 01: Once the public was aware that flight paths had changed, and they most certainly were aware immediately, both the city and the historic neighborhood petitioners knew of it, [00:53:02] Speaker 01: The statute authorized by Congress gave them 60 days to proceed in this court, and having failed to comply with that statute of limitations, they now do not have the option of judicial review of the agency's decision. [00:53:12] Speaker 03: And the reasonable exception? [00:53:18] Speaker 01: Reasonable grounds. [00:53:19] Speaker 03: Reasonable grounds exception. [00:53:22] Speaker 03: Would only arise when? [00:53:25] Speaker 01: In this court's cases, it's arisen where the agency told people to completely ignore its own advisory circular. [00:53:34] Speaker 01: Don't worry. [00:53:35] Speaker 01: That doesn't take long, right? [00:53:36] Speaker 03: So I understand the factual context in those cases. [00:53:40] Speaker 03: But I'm trying to understand the principle underlying those cases. [00:53:45] Speaker 01: So the principle in that case, that was a really unique set of circumstances. [00:53:50] Speaker 01: Paralyzed veterans is a better example of this, where they were too late to challenge the initial decision, but the agency issued a new decision amending the suspect decision. [00:54:00] Speaker 01: Petitioners filed within 60 days of that new amended decision, and they were able to seek judicial review. [00:54:05] Speaker 03: So one last question, Council, I hope, is Council for Petitioners mentioned that after September 14, when the FAA indicated, these are my words, not Council, that apparently the planes weren't following the path they should so that the FAA was going to tell the planes to follow the correct path, that some procedures were changed. [00:54:34] Speaker 03: but that the city has not been able to find out what those procedural changes were. [00:54:44] Speaker 03: Um, do you represent that procedure procedural changes were made? [00:54:49] Speaker 01: No, they weren't. [00:54:52] Speaker 01: All right. [00:54:52] Speaker 01: What was changed was the F. A gave better instructions to the air traffic controllers to make sure that procedures published in September were actually complied with. [00:55:00] Speaker 01: There's a picture of this actually a page 17 of their brief where you could see all the planes deviating. [00:55:05] Speaker 01: That deviation is a week after the procedures. [00:55:08] Speaker 01: That's all gone now. [00:55:09] Speaker 01: They don't do that anymore, and they follow the procedures as required up that commercial corridor. [00:55:15] Speaker 01: And that was the change made in the fall after the September decision. [00:55:18] Speaker 01: There were no changes to the procedures themselves. [00:55:21] Speaker 03: So if you understand what I'm getting at, you said just better instructions. [00:55:29] Speaker 03: The map says go Route 4. [00:55:32] Speaker 03: And in fact, they're going Route 3. [00:55:36] Speaker 03: So what would the instructions say other than, [00:55:39] Speaker 01: You have to go for what happens is the masses go before the pilots start going before and they would get instructions from the tower that said, okay, you can you can turn down head towards your destination. [00:55:50] Speaker 01: You don't have to go all the way to the end of route for where you would normally turn. [00:55:54] Speaker 01: You can turn early and go more directly to your final destination. [00:55:58] Speaker 01: Um, and the agencies or the air traffic controllers sometimes have to do that to get planes out of the way of one another to de conflict them. [00:56:05] Speaker 01: And sometimes they'll do it if they can, just to make the fights more direct. [00:56:08] Speaker 01: That latter version of the instructions, where they might just do it discretionarily, is what we told them not to do anymore, to preserve the route as it's charted and to fly farther up that route. [00:56:19] Speaker 01: The historic neighborhood petitioners mentioned that the fights are directly overhead. [00:56:23] Speaker 01: That's actually inaccurate. [00:56:24] Speaker 01: They're directly over the street. [00:56:25] Speaker 03: So there were some changes, Council. [00:56:27] Speaker 01: There were some changes in the way, as your honor put it, it was a compliance issue. [00:56:31] Speaker 03: There were changes in the way that the pilots were... No, but what you just described is telling the air tower people they could no longer exercise their discretion. [00:56:42] Speaker 01: in some limited fashion. [00:56:43] Speaker 01: Yes. [00:56:44] Speaker 03: Well, isn't that a change in procedures? [00:56:46] Speaker 01: No, the procedures account for the discretion of air traffic controllers. [00:56:49] Speaker 01: That's built into the procedure. [00:56:50] Speaker 01: The procedure charts the path of the plane, but there will always be the potential for the need to vary off that path in certain circumstances. [00:56:57] Speaker 03: But now you're telling me they no longer have that authority to exercise discretion. [00:57:03] Speaker 01: Well, they were instructed not to use it. [00:57:05] Speaker 01: I don't want to [00:57:07] Speaker 01: Well, I don't ever step the strength of the instruction. [00:57:10] Speaker 03: No, but I'm trying to understand what's going on here. [00:57:13] Speaker 03: Right. [00:57:13] Speaker 03: That if I have discretion, and then the agency tells me I have no discretion in that regard as to issue one, isn't that something new in the sense of a change? [00:57:32] Speaker 01: potentially. [00:57:32] Speaker 01: I hesitate for two reasons. [00:57:34] Speaker 01: One is, um, I haven't seen I haven't seen a transcript of what was told their traffic control tower and they're very particular about that their authority is. [00:57:43] Speaker 01: I don't want to misrepresent exactly what was what was told them. [00:57:47] Speaker 01: I can tell you that the procedure itself, the way that it was designed and intended to be flown was never changed. [00:57:53] Speaker 01: And let's accept that that was a new change in November. [00:57:55] Speaker 03: Represent that if you don't know what was told, [00:58:02] Speaker 03: by it, what FAA told the air traffic controllers. [00:58:06] Speaker 03: But part of what... No, Council, suppose the instructions were, although our previous instructions said one thing, now we're telling you something different. [00:58:16] Speaker 01: I can tell you it was not that. [00:58:18] Speaker 03: Well, you haven't seen it. [00:58:19] Speaker 01: No, I haven't seen it. [00:58:20] Speaker 01: It was a conversation, but I have talked to the FAA officials involved. [00:58:23] Speaker 03: So there is no transcript, right? [00:58:24] Speaker 01: No, of course not, no. [00:58:25] Speaker 03: No, I thought you said you hadn't read the transcript. [00:58:28] Speaker 01: Right, there is a transcript. [00:58:31] Speaker 03: Be careful here, Council. [00:58:33] Speaker 03: I'm just trying to understand what's going on. [00:58:35] Speaker 03: Because if you change the procedures, whereas I had discretion and now my discretion is limited. [00:58:44] Speaker 01: It changed the procedures would require. [00:58:47] Speaker 01: The charts also come with instructions to pilots. [00:58:52] Speaker 01: It would require some change in that. [00:58:54] Speaker 01: There was no change in that. [00:58:56] Speaker 01: The pilots may have been deviating on their own, and that was part of what was made sure that your traffic controller was part of it. [00:59:01] Speaker 03: Your bottom line, basically, is whatever deviations and changes there were, were simply, as Judge Santel's earlier question suggested, conformance. [00:59:15] Speaker 01: That is the changes. [00:59:16] Speaker 01: And a second bottom line is we notified the city in November that we'd had this conversation and that the pilots and air traffic controls are coming into compliance. [00:59:25] Speaker 01: If they considered that a new challenge, the 60 days to challenge that and you'll just say it didn't happen. [00:59:31] Speaker 01: So whether that whether that constitutes a legal change in the procedure in a new order doesn't alter the outcome in this case at all. [00:59:42] Speaker 03: Anything further, Judge Griffith? [00:59:45] Speaker 03: All right. [00:59:46] Speaker 03: Thank you. [00:59:47] Speaker 01: Thank you. [00:59:49] Speaker 03: Thank you. [00:59:49] Speaker 03: All right. [00:59:52] Speaker 03: Council for the city will give you a couple of minutes here. [00:59:56] Speaker 00: Thank you, honor. [00:59:57] Speaker 00: I'll start with that last point. [00:59:59] Speaker 00: The best place to look to see what the agency did is in Joint Appendix, page 609, which is the November 14, 2014 letter. [01:00:08] Speaker 00: And it does not describe it in the same way that counsel just described. [01:00:12] Speaker 00: And we were not able to ascertain from the record and from FOIA exactly what they did. [01:00:17] Speaker 00: The key here, though. [01:00:18] Speaker 03: But your point is you think they did something. [01:00:21] Speaker 00: They did do something. [01:00:22] Speaker 03: But didn't their 60 days have to start running then? [01:00:26] Speaker 00: And that brings us back to the point that they said, we're not done yet. [01:00:29] Speaker 00: We're continuing to work with you. [01:00:31] Speaker 00: We'll continue to work with you to implement more changes to address noise. [01:00:35] Speaker 06: That's not what they said either. [01:00:38] Speaker 00: It's not precise, but they did indicate that they were going to work with them to seek possible adjustments to the routes and the procedures to address the noise concerns of the city in a more precise language. [01:00:52] Speaker 00: But the flip side that the city is addressed with is there are dozens of these routes adopted at airports around the country, each one of those airports, hundreds or thousands. [01:01:03] Speaker 00: I think their rule would be that we need to file a petition for review and every one of those before we ascertain what the impact of those roots would be when they're categorically excluded. [01:01:14] Speaker 03: No, they're saying as of September 14th, you knew the roots had changed. [01:01:21] Speaker 03: And if you want the FAA to do anything, you have to come to court. [01:01:26] Speaker 03: And then the court has to try to figure out and you have to figure out [01:01:31] Speaker 03: and advising the court in your briefs what should happen next. [01:01:34] Speaker 00: The tricky thing about that is you've got a situation where there's no record. [01:01:39] Speaker 00: There's no real rule about the decision making that was done in this case. [01:01:44] Speaker 00: And a situation where they're still making changes to those. [01:01:49] Speaker 00: And the practical implication that once you file a petition of review, the agency doesn't talk to you anymore. [01:01:54] Speaker 00: You talk to the agency's lawyers. [01:01:56] Speaker 00: And so the practical ability to actually implement change [01:02:00] Speaker 00: goes away, and it's actually counterproductive at that point to actually trying to exhaust any administrative review, which is they're the experts. [01:02:08] Speaker 00: They're the ones who have the environmental information, safety information, the understanding how the airspace works. [01:02:13] Speaker 04: Okay, Councilman, all of those difficulties suggest that you should have filed a suit. [01:02:21] Speaker 04: Why not do that? [01:02:22] Speaker 04: Why didn't they ask? [01:02:24] Speaker 04: I think in this case, isn't the clear learning of our president [01:02:30] Speaker 04: That to protect your rights, you better file a suit. [01:02:34] Speaker 04: And this is a practical argument on top of that. [01:02:36] Speaker 04: You just gave... [01:02:38] Speaker 00: And in this case, your honor, I have not had a situation where both the administrator of the FAA and a regional administrator has been quite as aggressive at saying, we are not done in making changes with this procedure and this rule. [01:02:53] Speaker 00: We hear you, we're gonna hear you, and we're going to make changes. [01:02:57] Speaker 00: In result, and I think it was the city's view that it had to exhaust that administrative opportunity before- [01:03:04] Speaker 04: Your opponent counsel, the counsel for FAA, says that if we were to apply the reasonable grounds exception here, it would be a distortion of our presence. [01:03:15] Speaker 04: That's no more history, it doesn't matter. [01:03:17] Speaker 04: But it would be an extension of our presence beyond anything that we've done that far. [01:03:21] Speaker 04: Will you respond to that? [01:03:22] Speaker 04: Would you give the court your best argument for why the reasonable grounds exception ought to apply here? [01:03:29] Speaker 00: So I actually think this comes very close to paralyzed veterans, where you had a situation where the DC Circuit noted that [01:03:40] Speaker 00: The party in that case, the Paralyzed Veterans Group, knew that the rule was open. [01:03:45] Speaker 00: It did not know the full extent of changes that would be made, and it reasonably waited to exhaust its administrative arguments. [01:03:52] Speaker 00: I'd also note Friedman versus FAA, which the court decided in November after briefing was concluded in this case. [01:04:00] Speaker 00: Similar sort of situation where the agency [01:04:04] Speaker 00: wouldn't make a decision on a particular application related to a pilot's medical condition in that case, kept it open and essentially had a constructive denial, very similar to what we saw in this case, where they just would not address the historic impacts, certainly on the record, that the city identified in this case. [01:04:25] Speaker 00: I think those are the two best cases that we have. [01:04:28] Speaker 00: I think Safe Extensions is another good example of a... Would you like to rule for [01:04:35] Speaker 04: This is what Judge Rogers was trying to get from SAA counsel. [01:04:39] Speaker 04: What's the principle that underlies our reasoning there? [01:04:43] Speaker 00: And I'm sorry, Your Honor, I wasn't able to make out your question. [01:04:47] Speaker 03: He's asking what are the principles underlying those authorities that you cited, because the SAA responded that they don't apply here. [01:05:01] Speaker 00: So the principle of those decisions, there's two pieces. [01:05:05] Speaker 00: One is that you have to have the consummation of the agency's decision-making process. [01:05:10] Speaker 00: And two, legal obligations or responsibilities that flow from that. [01:05:14] Speaker 00: Certainly there have been impacts that have flown from this since the implementation of the rule. [01:05:22] Speaker 00: However, [01:05:23] Speaker 00: I would argue that until June 1st, 2015, we did not know for sure that FAA would not address our request for reconsideration under the National Historic Preservation Act. [01:05:37] Speaker 00: And that's a procedural right that we believe we have. [01:05:40] Speaker 00: That's a procedural obligation that they have. [01:05:43] Speaker 00: and obligations and impacts flow from it. [01:05:46] Speaker 00: In terms of the question about the other prong, that's the one where the city I think was in the toughest position, there has to be the consummation of the agency's decision-making process. [01:05:56] Speaker 00: The agency repeatedly told the city, we counted at least five indications in the record, that they're not done with the process, that they're considering further changes, [01:06:05] Speaker 00: They're considering to work on this issue to try to address the city's concern. [01:06:10] Speaker 00: In that face, we did not believe that the agency had consummated its decision making process and that there was actually more to come. [01:06:19] Speaker 00: I'd like to move on to a couple of other issues that the Council for the FAA had raised. [01:06:26] Speaker 00: And I think one important misconception, which is the notice that was provided to the city prior to these routes being implemented. [01:06:35] Speaker 00: And there's a few important issues. [01:06:37] Speaker 00: First, [01:06:37] Speaker 00: The obligation under 36 CFR, section 800.2C1, provides that the agency needs to reach out to the official with jurisdiction over the historic resource. [01:06:52] Speaker 00: In no stretch of the imagination could they imagine a low-level employee of the airport. [01:06:57] Speaker 06: What would be the, is that regulatory language or is that your paraphrase? [01:07:03] Speaker 06: Is that regulatory language or your paraphrase? [01:07:06] Speaker 00: I'm paraphrasing very closely. [01:07:08] Speaker 00: Give me the regulatory language. [01:07:09] Speaker 00: Yes. [01:07:10] Speaker 06: Please. [01:07:11] Speaker 06: Give me the regulatory language. [01:07:12] Speaker 04: I will pull that for you. [01:07:37] Speaker 06: I don't think reach out to in there for one thing. [01:07:41] Speaker 00: That's correct. [01:07:42] Speaker 00: But if you were to take a look at what it says, please, it says a representative of local government with jurisdiction over the area in which effects of an undertaking may occur is entitled to participate as a consulting party. [01:07:56] Speaker 06: So in what way did they prohibit any official from participating? [01:08:02] Speaker 06: So they did not let them notice provision. [01:08:04] Speaker 06: That's a participation provision. [01:08:06] Speaker 06: that's no other than the departments that are charged with site on airports of noise were they supposed to send notice to whether they get in the hands of a bureaucrat or a secretary to whom are they supposed to send notice to that they didn't send notice to you. [01:08:24] Speaker 00: So the person that they would send notice to is the city historic preservation officer. [01:08:28] Speaker 00: The city has an identified person [01:08:31] Speaker 00: that Department of Transportation consults with all the time, that FAA consults with all the time for any historic related issues that touch upon the City of Phoenix. [01:08:40] Speaker 00: So if there is... Did that person not have notice here of what was going on? [01:08:44] Speaker 00: That person did not have notice. [01:08:46] Speaker 00: The only person was this one low-level person within the aviation department. [01:08:51] Speaker 06: So they didn't pass it anywhere up the chain from the person who received it. [01:08:58] Speaker 06: We use this low-level term, but it's a person who is an exposed person in the department that had relevance to this event, right? [01:09:06] Speaker 00: They had attended some meetings and they received emails and phone calls from the FAA. [01:09:10] Speaker 00: That is true. [01:09:11] Speaker 00: And so there's two issues. [01:09:13] Speaker 00: One is, what person do you choose within the department? [01:09:16] Speaker 00: And then one department. [01:09:17] Speaker 00: If I'm trying to give FAA notice of a particular issue, I don't reach out to the Coast Guard. [01:09:22] Speaker 06: Neither do you go to the Secretary of the Department of Transportation. [01:09:26] Speaker 00: In this case, and it's actually addressed in some of the comments that the city provided to FAA, the normal practice of FAA when they were talking about airspace and air traffic control issues was to actually reach out to the executive director of the airport or to one of the deputy directors who has in charge of operations. [01:09:46] Speaker 00: They made a different decision here and they chose a particular person. [01:09:50] Speaker 00: I'd like to just highlight that. [01:09:52] Speaker 06: We're both using that time that you long since ran out of, so unless the presiding judge wants you to go further, I frankly would just assume we... Yeah, any, you said you had a couple of points. [01:10:05] Speaker 03: That's one point. [01:10:06] Speaker 03: What's the second? [01:10:07] Speaker 00: The second point was really to point out the nature of the communication with that low-level employee. [01:10:13] Speaker 00: If you were to take a look at Joint Appendix 307 and take a look at the communication with that employee, they clearly identified, I'm not the person to talk about NEPA issue. [01:10:25] Speaker 00: And in fact, to use a direct quote, I'm just an aircraft dude. [01:10:30] Speaker 00: And I think in that case where they persist, [01:10:33] Speaker 00: And using this person's point of communication on a very important and controversial issue, for a person who's clearly indicated, I'm just an aircraft dude, it really raises a number of questions about how important they'll provide. [01:10:47] Speaker 00: And it's important to consider, because they're not providing any other notice to the public or to the city, the importance of getting that right in a categorical exclusion context is critical, because this is the only chance that they had. [01:11:01] Speaker 00: With that, I would just like to say there are manifold procedural deficiencies that we've identified in our briefs. [01:11:09] Speaker 00: I believe they clearly call for vacating the routes at question here and remanding back to the agency for further proceedings. [01:11:17] Speaker 03: Thank you. [01:11:18] Speaker 00: Thank you. [01:11:21] Speaker 03: All right. [01:11:22] Speaker 03: Council for petitioner, do you want to take a minute? [01:11:33] Speaker 05: Thank you, Your Honor. [01:11:35] Speaker 05: Matthew Adams for the Historic Neighborhood Petitioners. [01:11:39] Speaker 05: I'd like to make two quick points. [01:11:40] Speaker 05: The first one responding to FAA counsel's arguments about the significance of the impacts or the perceived significance, determining the scope of the consultation. [01:11:52] Speaker 05: And briefly, I would just direct the Court's attention to 40 CFR 1508.27, [01:12:00] Speaker 05: subsection be so part for what was the site 15 what I'm sorry your honor it's 40 CFR 15 oh 8.27 oh 8.2 [01:12:16] Speaker 05: Seven. [01:12:17] Speaker 03: Seven. [01:12:18] Speaker 03: Thank you. [01:12:18] Speaker 05: Before. [01:12:20] Speaker 05: Before. [01:12:20] Speaker 05: And the reason why that is significant is that is a provision that says that the definition of significance under NEPA actually includes the concept of public controversy. [01:12:35] Speaker 05: In other words, a highly controversial action [01:12:39] Speaker 05: can be a significant impact, can have a significant impact. [01:12:43] Speaker 05: The second point, Your Honor, is just to further follow up on the reasonable grounds. [01:12:52] Speaker 05: This is not a case like National Federation of the Blind where we filed in the wrong court. [01:12:56] Speaker 05: And it's not a case where we ignored a letter saying, filed by mid-November or else. [01:13:02] Speaker 05: We were told that decision-making was ongoing, and we were told that on a couple of different occasions, including the December meeting that Council for the FAA has proposed as an alternate endpoint today. [01:13:15] Speaker 05: So even if the decision making was final in September, which we dispute, and even if the city knew that fact, which we also dispute, there will still be reasonable grounds. [01:13:28] Speaker 05: And in terms of principles, I guess we would sum it up as follows. [01:13:32] Speaker 05: As a general matter, the court has found reasonable grounds where a petitioner delayed filing [01:13:37] Speaker 05: based on agency representations that a decision making process was ongoing and that reaches both safe extensions and paralyzed veterans. [01:13:46] Speaker 05: And I think it excludes cases like National Federation of the Blind and also electronic privacy. [01:13:54] Speaker 03: All right. [01:13:54] Speaker 03: Thank you. [01:13:55] Speaker 05: Thank you. [01:13:56] Speaker 03: We will take the case under advisement.