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Base number 19-1153 et al.

[00:00:04] Speaker 01:
Tuscola Area Airport Authority et al.

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Petitioners versus Stephen Dixon.

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Mr. Armstrong for the petitioners, Ms.

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Kurzwang for the respondent.

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Good morning, Your Honors.

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May I proceed?

[00:00:22] Speaker 03:
Yes, please.

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My name is Alan Armstrong.

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I represent the Tuscola Area Airport Authority

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and the friends of the Tuscola Airport Authority and other petitioners in this matter.

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The petitioners appeal from two orders.

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One is dated June the 19th of 2019, founded JA1-3.

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The other is November 13, 2019, founded JA1178 through 1180.

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I want to focus my time on the salient and significant issues in this case,

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And that is the fact that this case is governed by Barnstable, the town of Barnstable versus FAA, found at 659 Fed 3rd, 28, a DC circuit decision of 2011.

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There is no, I repeat, there is no difference in the facts of this case.

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Mr. Armstrong, Mr. Armstrong, Barnstable,

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In Barnstable, the court found that the agency had improperly applied its own handbook.

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Improperly applied its own handbook.

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What's the comparable problem here?

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Where is the agency?

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And remember, we give deference to agencies in interpreting their own rules.

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So where are their own regulations or guidance?

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In this case, has the FAA failed to properly interpret its own rules to the extent we wouldn't defer to it?

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Thank you, Jay Shatel, for that question.

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The agency found the subject... This is on page one of the record at JA1.

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The subject aeronautical studies conclude the proposed structures would exceed the obstruction standards as contained in Title 14, Code of Federal Regulations 14 CFR, Part 77.

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They go on to say, however, the proposed structures were found to result in no substantial adverse effect on present and planned IFR or VFR operations.

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The problem, Judge, is that if you read Section 6-3-3 of the handbook, the trigger, and you know this because you said it on Barnes-Devel, if a structure first exceeds the obstruction standards of Part 77,

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or is found to have a physical or electromagnetic radiation effect in the operation of their navigation facilities

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then the proposed or existing structure, if not amended, altered or removed, has an adverse effect if it would, subparagraph B, require a VFI operation to change its regular flight course or altitude.

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And that's exactly what's going to happen here.

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So you just said require.

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You said require, right?

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I did say require.

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I did say require.

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Require?

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Yes.

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Yes.

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Well, the agency interprets, the FAA here said that hasn't happened here.

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The agency's wrong, Judge.

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I don't care what they said.

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And the reason that's the case is because you wrote in Barnes' Table, or one of the judges wrote in Barnes' Table, once the turbines are built, many of these flights may be forced to be rerouted or proceed in violation of the FAA's own regulation, 14 CFR 91119, which requires a 500-foot distance between an aircraft and any structure.

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Further, the FAA's own weather compressibility study concluded that during instances of inclement weather, VFR aircraft could potentially be compressed to a lower altitude to avoid cloud cover such that they would come in within 500 feet of the turbines in violation of 91-119.

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And this is the key judge.

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Indeed, section 6-3-8B2 of the handbook says that any structure that would interfere with a significant volume of low altitude flights by actually excluding or restricting VFR operations in a specific area would be a substantial adverse effect and may be considered a hazard to air navigation.

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And the problem with this case, judge, is there's no traffic counts.

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They didn't make a finding of substantial adverse effect because they never conducted conducted a study of aircraft flying over the site like they did in Barnstill.

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So that's the problem.

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That's why our case is exactly like that case.

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We've got a triggering event.

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The triggering event is the fact that they exceed obstruction standards.

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You've got one or two choices under 633.

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It can be a radar issue or it can be exceeding Park 77.

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We've got the Park 77, exceeding Park 77 requirements satisfied.

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And we have a requirement that aircraft alter course to avoid the wind turbines under 91119.

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That means you have to do an analysis under 634 and 635B.

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634, the type of activity must be considered in reaching a decision on the question of what volume of aeronautical activity is significant.

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For example, if one or more aeronautical operations per day would be affected, this would indicate regular and continuing activity, thus a significant volume, no matter what the type of operation.

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There's no traffic count, they didn't count it.

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In Barnstable, they did, Judge.

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And here we are at Barnstable, page 35.

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A study by consulting firm Mitter, M-I-T-E-R-E, commissioned by the F.A., charted how many flights flew through a three-dimension zone around the project, the boundaries of which were 500 feet side to side and 1,000 feet above the turbines.

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The study found that over the course of a 90-day period, 425 flights flew through the immediate vicinity of the project site, and that 94.1% of these 425 were flying at an altitude of 1,000 feet or less.

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The 425 flights would be, of course, no more than four and a half times the one flight per day set forth in six, three, four sets in the threshold of significance.

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They didn't do a traffic count and they should have.

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What they're saying in their brief judge, they're saying on page 15 that we're limited to the airport traffic area, the airport traffic pattern, that is not correct.

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And the reason that's not correct, if you look in the record, it says on page 664 at 453, 486, or 499 feet AGL, the structures would not have a substantial adverse effect on en route.

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I want to emphasize en route flight operations.

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Why en route?

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Because that's what the statute requires.

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under 49 USC 44 718 you have to.

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Yeah, of course, your honor.

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My understanding is that these wind turbines are not the first ones in this area that they were added.

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There's already a lot of wind turbines there and these were added to it.

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Is that correct.

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I don't dispute that.

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Okay.

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So is, is, did you establish any evidence in the record that planes are

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we're not already going around this area because of the existing wind turbines?

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What evidence is there that these ones would require planes to fly differently than they're not already doing because of the existing wind turbines?

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Thank you for the question, Judge.

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There are three affidavits in the record, one by Ricky Smith, a test pilot with 29,000 flight hours, one by Mr. Poolyot, and a third affidavit, and they all say the same thing.

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These turbines are between three to nine miles north and northwest of the airport, and pilots will have to alter their arrival to the airport that will create bottlenecks.

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They're sworn testimony.

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In a way that they wouldn't, that they're going to have to fly differently than they already have to do to get around the other turbines?

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That's what they said, Judge.

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It's in the record.

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Does that make sense?

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If there's already other turbines there, you're going to have to go higher

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to begin with.

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You don't want to hit the old turbines anymore than the new turbines.

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They're located at different geographic areas, Judge.

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And so your evidence that this one, I don't know what on route is under your theory, your evidence that this was more on route than the other turbines the airport were from?

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They're immediately north and northwest.

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That means you can't approach them.

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Where are the other ones?

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The existing ones.

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They're certainly not within this area.

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They're certainly elsewhere.

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The point is- Are they as close, but maybe more east or south or something?

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I think they're substantially farther north, Your Honor.

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I think they're substantially farther north.

[00:09:19] Speaker 05:
Wouldn't that still be en route to the airport?

[00:09:22] Speaker 03:
Not necessarily, Your Honor.

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Well, what does en route mean?

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Well, en route, you have to think three dimensionally in airplanes, both laterally, vertically, and horizontally.

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And they're going to have to alter that you know, that's not what i'm asking you have you said on route that's the language you emphasize now in theory if they were taking off from uh an airport here in washington dc Every mile the air mile they fly between washington dc and tuscola airport would be on route to that airport And so the fact that something's more north wouldn't change the fact that it's on route

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to that airport.

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So I'm trying to understand how we know that these turbines are on route to the airport in a way that the existing turbines may be a bit more north or not.

[00:10:05] Speaker 05:
They're both part of the route to the airport.

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Clearly, area north and northwest between three to nine miles of the airport will be occupied by these wind turbines.

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Three to nine miles.

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That means that the angle by which you can intercept your inbound course is much more acute.

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You have to go farther south to get to the airport with these turbines than you would, but for their being there.

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All right.

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Any other questions?

[00:10:38] Speaker 04:
No.

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Okay.

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Thank you, Mr. Armstrong.

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We'll hear from the FAA.

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May it please the court, I'm Dana Karaslam for the United States.

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The question here under the FAA's order is whether there's a substantial adverse effect on a significant volume of flights.

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Significant volume of flights, as you know, is a defined number.

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It's daily, sometimes weekly is enough.

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And we are just nowhere near that here.

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In terms of the airport traffic pattern, it is important.

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Before we get to significant volume, can I ask this clutter?

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I think there's no dispute that these turbines create clutter on the radar.

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That's right, Your Honor.

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Is clutter an electromagnetic effect on the radar?

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No, I do not believe that clutter qualifies as an electromagnetic effect.

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It's a physical effect.

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on the radar.

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Someone who's not schooled in this area, can you explain to me the difference between a physical effect and so it's just that they pick them up like they would an airplane and so it reports it onto the radar?

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That's right.

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My understanding, I am also not schooled in this area, but my understanding is that electromagnetic effect is something you might see with a cell phone tower or something that changes the

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Electromagnetic.

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Whereas the wind turbines, they pick up because they're physically there.

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The radar signal is bouncing off.

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Got it.

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Thank you.

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So there is clutter, but that clutter would only affect the ability of FAA to provide tracking to these aircraft that don't have transponders.

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but nonetheless want air traffic control services.

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And FAA looked at the data and saw in the prior year, there had only been seven of those flights.

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Nobody is guaranteed that service, but to the extent resources permit, they can still get that service.

[00:12:59] Speaker 02:
Effectively, you did have a flight count for the VFR flights, right?

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For the individual flight rules flights, you effectively did have council

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said the government didn't have a flight count.

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He said traffic count, but effectively you did because you had the prior year's data.

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Is that, am I correct in that?

[00:13:21] Speaker 06:
So that prior year's data shows all of the flights using instrument procedures.

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There could be flights using visual flight rules, procedures that were not, that didn't ask for services from air traffic control.

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that didn't show up on that spreadsheet.

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But that spreadsheet, one of the questions was, would there be an effect on this particular instrument procedure?

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This VORA is an instrument procedure.

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And there is an effect there, but again, we're looking at one flight every 22 days.

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Now for the instrument flight rules flights, what we care about there, it's important to distinguish between the airplanes that are in the airport traffic pattern airspace

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that is a couple miles before the runway, a couple miles after on the side so that the airplanes can circle at the airspace.

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There are no wind turbines in that area.

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There were proposals for some.

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Tuscola has a bigger one than its current runway support because they have this proposal for a runway that would do category C aircraft that's never been built.

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But if it takes that into account.

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there are no aircraft in the airport traffic pattern that's currently being used or even in the larger, I'm sorry, did I say there are no aircraft?

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There are no wind turbines in the airport traffic pattern airspace that's currently being used or that would be used even with this, if this larger runway were ever built.

[00:15:00] Speaker 06:
Then if we talk about planes that are en route, right, these wind turbines are less than 500 feet tall, which is high,

[00:15:08] Speaker 06:
but not compared to cruising altitude for an airplane.

[00:15:13] Speaker 05:
Go ahead and finish.

[00:15:15] Speaker 05:
I'm sorry, I thought you were done.

[00:15:17] Speaker 05:
Go ahead and finish.

[00:15:18] Speaker 06:
Oh, I was just going to say, so that doesn't present a problem within the meaning of the FAA order.

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These aircraft can still fly over these

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wind turbines.

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And then of course, there's no data in the record.

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This isn't like Brownstable.

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There's no data in the record showing that there are actually airplanes flying over that area.

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The wind turbines in the area, Your Honor, can see at J 600.

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And it shows a long stretch of wind turbines in that area.

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And you can see a sort of little red circle around where the

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the new ones are.

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So we don't know that aircraft are flying over that, but they can still fly over it as long as they're, you know, more than 500.

[00:16:06] Speaker 02:
The term en route in this context refers to planes that are not landing there, but are flying over and not landing.

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Is that correct or incorrect?

[00:16:15] Speaker 06:
Yeah.

[00:16:15] Speaker 06:
So once an aircraft is in landing, sort of in the process of landing, it's in the airport traffic pattern airspace.

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which is, you know, several couple miles in it.

[00:16:28] Speaker 02:
What does the term enroute refer to?

[00:16:30] Speaker 06:
So an aircraft is enroute whenever it is not in that airport traffic pattern airspace.

[00:16:35] Speaker 02:
It's not in the pattern.

[00:16:36] Speaker 02:
It's flying in that area, but not in the pattern, in the landing pattern, right?

[00:16:40] Speaker 02:
Okay.

[00:16:41] Speaker 06:
Yeah.

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It could be on its way to Tuscola.

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It could be on its way someplace else.

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But the FAA handbook at six... Wait, wait, wait, hold on.

[00:16:50] Speaker 04:
If it's on its way to Tuscola, why isn't it in the landing pattern?

[00:16:53] Speaker 04:
You just confused me.

[00:16:54] Speaker 04:
I thought your answer to Judge Sentelle said that planes that are in route are planes that are passing by, no?

[00:17:01] Speaker 06:
What do you mean, right?

[00:17:04] Speaker 04:
Now you've got me completely confused.

[00:17:06] Speaker 04:
Yeah.

[00:17:07] Speaker 06:
I'm sorry, Your Honor.

[00:17:08] Speaker 06:
Right is one of my verbal ticks.

[00:17:10] Speaker 06:
Once the airplane is coming in for a landing, it's in that airport traffic pattern airspace.

[00:17:18] Speaker 02:
So it has ceased to be in route at that time?

[00:17:22] Speaker 06:
Exactly.

[00:17:23] Speaker 06:
So at the order at 6-3-8, anything that is not in the airport traffic pattern airspace is in route.

[00:17:31] Speaker 02:
Okay.

[00:17:32] Speaker 02:
And with the regulations about... A plane could be in route for a while and then cease to be in route when it gets in the pattern.

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Is that correct?

[00:17:41] Speaker 06:
Exactly.

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But there's no effect on that pattern because there are no wind turbines in the airport traffic pattern airspace.

[00:17:50] Speaker ?:
Okay.

[00:17:50] Speaker 02:
any effect on any traffic, on any flights that were en route.

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So if there's not any effect on en route flights, then there's not an effect.

[00:18:01] Speaker 06:
Exactly, Your Honor.

[00:18:02] Speaker 06:
And this point about something that is less than 499 feet isn't in Tuscola going to have an effect on the en route airspace because of the flight.

[00:18:18] Speaker 06:
the altitude at which airplanes can fly over that.

[00:18:24] Speaker 05:
There was... I'm confused by that answer.

[00:18:32] Speaker 05:
Why isn't requiring a change in altitude, that is, ensure you're 500 feet over these wind turbines, a change in altitude or route?

[00:18:47] Speaker 05:
before they get to the landing or taking off process?

[00:18:54] Speaker 05:
It seems like you are changing the route.

[00:18:57] Speaker 05:
They're going to have to go 500 feet above or go further around.

[00:19:03] Speaker 06:
So there are a couple of answers there.

[00:19:08] Speaker 06:
One piece is that we don't have any data that aircraft are actually

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flying over this place where these wind turbines would be built at less than 1,000 feet.

[00:19:23] Speaker 06:
So.

[00:19:23] Speaker 05:
In their regular course of flight.

[00:19:26] Speaker 06:
In their regular course, right?

[00:19:27] Speaker 06:
What we're looking at here is whether there is a significant volume for visual flight roles that would be daily flights.

[00:19:36] Speaker 05:
What little significance requirement isn't part of 638?

[00:19:41] Speaker 05:
Or I'm sorry, not 638, program by the

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633B require a VFR operation to change its regular flight course or altitude.

[00:19:51] Speaker 06:
Yes, that's right.

[00:19:52] Speaker 06:
So 633 looks at whether there is an adverse effect.

[00:19:55] Speaker 06:
And then 634

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And the time says that adverse effect has to be substantial.

[00:20:03] Speaker 06:
And that means significant volume.

[00:20:06] Speaker 06:
And 634 tells us what a significant volume is.

[00:20:09] Speaker 05:
And then 638 requires significance volume as well.

[00:20:12] Speaker 05:
And so what you're saying is there's no evidence in the record one way or the other.

[00:20:16] Speaker 05:
And these things, as Mr. Armstrong points out, are three miles away from the airport.

[00:20:22] Speaker 05:
Shouldn't the FAA have checked to see what airplanes

[00:20:27] Speaker 05:
what volume of airplanes in that area that close to the airport are going to be now required to fly higher than they might like if they're coming in to land at this airport?

[00:20:41] Speaker 06:
The argument that the FAA should have checked this particular flight path is something that I have heard for the first time today at argument.

[00:20:52] Speaker 06:
The agency did

[00:20:54] Speaker 05:
look at.

[00:20:55] Speaker 05:
I understood that from their briefing here, so I'm not sure whether I've just misunderstood something, but they've they definitely raised, you see, three of the people are going to have to fly higher or go out of their way to go around these windmills.

[00:21:06] Speaker 05:
They definitely raise that in their brief.

[00:21:08] Speaker 05:
I'm not smart enough to think that myself.

[00:21:10] Speaker 05:
And so I don't know how we know that there's not a significant volume of planes that now have to either go higher or go around.

[00:21:16] Speaker 04:
Didn't you say earlier, I understood you to say earlier in response to judgment that the FAA doesn't have any information about

[00:21:24] Speaker 04:
planes flying those routes.

[00:21:25] Speaker 04:
Isn't that what you said?

[00:21:28] Speaker 06:
Yes, Your Honor.

[00:21:31] Speaker 04:
I interpreted that as saying there aren't any flights.

[00:21:38] Speaker 04:
There aren't any airplanes flying there.

[00:21:39] Speaker 04:
Is that wrong?

[00:21:41] Speaker 04:
Or is it that you don't know?

[00:21:44] Speaker 06:
So we don't have, to the best of my knowledge, we don't have data on

[00:21:49] Speaker 06:
how high, if planes are flying right there, which as has been observed is very close to a whole bunch of other wind turbines.

[00:21:58] Speaker 06:
We don't have data on how many planes are flying right there at below a thousand, at all, or below a thousand feet, which would be the only planes that would have to move up.

[00:22:08] Speaker 06:
But if you look at the way these regulations- Wait, can I back up?

[00:22:11] Speaker 05:
As Judge Tatl said, when you say we don't have data, does that mean we looked and there's zero?

[00:22:16] Speaker 05:
Or does that mean we didn't check?

[00:22:20] Speaker 06:
I am not aware that if they looked at the, there's nothing in the record showing that if they looked at flights.

[00:22:30] Speaker 05:
There could be lots of planes flying right there and having to go 500 feet over these turbines.

[00:22:35] Speaker 05:
We just don't know one way or the other.

[00:22:37] Speaker 06:
Yeah, of course, as your honor pointed out, and you can see the J-600, there are a lot of wind turbines right here in this area.

[00:22:44] Speaker 06:
This is right next to it.

[00:22:46] Speaker 02:
Should the FAA have checked to find out if there's planes flying lower than 1,000 feet over that area?

[00:22:53] Speaker 02:
I understood your early answer to mean that there weren't planes doing that.

[00:22:58] Speaker 02:
Now I'm understanding it to be saying we don't know whether there are planes doing that.

[00:23:04] Speaker 06:
I do not know what data FAA has on this.

[00:23:09] Speaker 06:
The idea that FAA had an obligation to look at this particular data set, I do think is new today at argument, but I want to take a step back and just talk about why it doesn't matter here.

[00:23:23] Speaker 06:
Right, because the handbook at 638C that talks about unroot flights, talks about obstructions that are less than 499 feet.

[00:23:36] Speaker 06:
All of these wind turbines are less than 499 feet.

[00:23:40] Speaker 06:
When you're taking off from Tuscola, you have to have, with a visual flight rules flight, you have to be able to see the ground.

[00:23:49] Speaker 06:
Usually for at least 1000 feet, right, which is how these things come together in 683 C. Where you should be able to fly right over these.

[00:23:59] Speaker 06:
You should be able to fly high enough to be go over these with your visual flight rules flight.

[00:24:03] Speaker 06:
If it's clear enough for you to take off from to school.

[00:24:07] Speaker 06:
So the handbook the FAA's guidance here.

[00:24:11] Speaker 05:
I'm sorry, I'm still confused.

[00:24:13] Speaker 05:
They should be able to, there's no question that they should be able to do it.

[00:24:16] Speaker 05:
The question is whether, but for these turbines, would they, or are these turbines causing them to make a change in their flight pattern?

[00:24:26] Speaker 05:
And then if it does, then we need to know whether there's a significant volume there.

[00:24:31] Speaker 05:
And that's what you told me, we don't know.

[00:24:34] Speaker 06:
So, Your Honor, the height over the wind turbine,

[00:24:38] Speaker 06:
A plane taking off from Tuscola based on the visibility rules, what I meant by should, right?

[00:24:44] Speaker 06:
They can fly over these wind turbines at 500 feet.

[00:24:49] Speaker 06:
And that's where that number of 499 feet, which is the point at which FAA starts looking more carefully at structure, that comes from the intersection of these visibility rules, which apply when you take off in Tuscola.

[00:25:07] Speaker 06:
and the um for visual flight wheels flights and the height of the wind turbine so we we have this framework that already takes into account when a change in elevation is going to to be an issue but we don't even know as you these these wind turbines are close to many other wind turbines so if this were 501 feet then you would have to have a have to

[00:25:37] Speaker 02:
acquire the data as to how many planes were flying over there?

[00:25:43] Speaker 02:
Is that correct?

[00:25:46] Speaker 06:
I'm not sure exactly what obligations are triggered once you get to 501 feet or even 500 feet, because they're not triggered in this case.

[00:25:57] Speaker 06:
There is nothing here that is going to be over 499 feet.

[00:26:03] Speaker 06:
So it's not triggered here.

[00:26:04] Speaker 06:
Airplanes can still fly over these wind turbines.

[00:26:09] Speaker 06:
they're flying 500 feet up.

[00:26:10] Speaker 06:
That's just the regular rule that you have to fly.

[00:26:13] Speaker 06:
Same thing if you build a house or a bridge.

[00:26:15] Speaker 02:
Are you saying that the requirements that council was relying on and saying the FAA had violated do not apply because of these structures are less than $4.99?

[00:26:27] Speaker 02:
Is that what you were saying?

[00:26:29] Speaker 06:
I missed the beginning of your honest question.

[00:26:31] Speaker 06:
My sound went out.

[00:26:32] Speaker 02:
Council was saying the FAA had validated its own regulations.

[00:26:38] Speaker 02:
So what I understand you to be saying is the requirement upon which he's relying does not apply here because the structures are less than 499 feet.

[00:26:48] Speaker 02:
Is that what you are saying?

[00:26:51] Speaker 06:
Yeah, I'm not totally sure what he thinks that we violated, but because these are less than 499 feet, they're not going to present a problem for en route flights under the FAA's guidance sets this all out.

[00:27:07] Speaker 06:
Um, I'm sorry.

[00:27:09] Speaker 05:
I'm still confused.

[00:27:10] Speaker 05:
Um, Do you have a question, Dan?

[00:27:14] Speaker 02:
No, you can change the subject.

[00:27:16] Speaker 02:
I'm sorry.

[00:27:17] Speaker 02:
Either of the Davis to first name.

[00:27:19] Speaker 04:
We should change the subject.

[00:27:22] Speaker 04:
You, if you have a question related to this, go ahead.

[00:27:25] Speaker 05:
I do.

[00:27:25] Speaker 05:
Six, three, eight B B one B says flight over sparsely populated areas.

[00:27:33] Speaker 05:
Um, which I guess this would probably be.

[00:27:36] Speaker 05:
An aircraft might not be operating closer than 500 feet to any structure for our purposes, vessel vehicle structure.

[00:27:45] Speaker 05:
It cannot be, I don't get why it matters how tall this is, they can't be within 500 feet of a structure.

[00:27:53] Speaker 05:
And a whole bunch of new structures were put up just three miles north of the airport.

[00:27:59] Speaker 05:
And so isn't that necessarily going to make anyone who's in that area where there didn't used to be structures?

[00:28:06] Speaker 05:
have to fly at a different altitude to be 500 feet above those structures.

[00:28:10] Speaker 06:
So we don't know that there was anybody flying.

[00:28:14] Speaker 05:
That's the question.

[00:28:15] Speaker 05:
That's the data question that we don't have here.

[00:28:18] Speaker 05:
I'm just asking about whether they're required to be 500 feet above these turbines.

[00:28:23] Speaker 06:
Absolutely, Your Honor.

[00:28:24] Speaker 06:
They're required to be 500 feet above the turbines.

[00:28:28] Speaker 05:
Before the turbines were there, they weren't required to be

[00:28:31] Speaker 05:
500 feet on top of whatever the turbine feet is, they could have been lowered to the ground in this very spot.

[00:28:37] Speaker 06:
I want to be careful here because, you know, a thousand feet is a pretty typical minimum cruising altitude.

[00:28:45] Speaker 05:
You're not your usual cruising altitude if you're three miles away from the airport you're going to land in.

[00:28:54] Speaker 06:
Well, this is reflected by the airport traffic pattern airspace, right?

[00:28:59] Speaker 06:
FAA sets up the airport traffic pattern airspace for when, that's when something stops being en route and starts being in landing.

[00:29:07] Speaker 06:
So I don't know how far three feet is, sorry, three miles is for an airport, for an airplane coming into land, but the FAA's airport traffic pattern airspace tells us

[00:29:23] Speaker 06:
when something stops being enroute, when something stops being, you know, things start to be a concern.

[00:29:33] Speaker 05:
I understand that explanation, but I don't, I'm just talking about a handbook here that says if there's a change to altitude, that's an adverse effect.

[00:29:48] Speaker 05:
And one thing that

[00:29:49] Speaker 05:
is a change in altitude is that you gotta be 500 feet over any structure.

[00:29:54] Speaker 05:
So when new structures are put up, where there was say nothing before but a field, you're going to have to change where you're flying.

[00:30:04] Speaker 05:
Because now you gotta be 500 feet on top of however tall that structure is, which you wouldn't have had to do before.

[00:30:11] Speaker 05:
And so to know we've got an adverse effect and to know whether it's significant, I think we need to know how many planes are having to do this.

[00:30:17] Speaker 05:
And that's what you say we don't have the data for.

[00:30:19] Speaker 05:
That's my confusion.

[00:30:20] Speaker 06:
So when we're looking at 633 sets the sort of threshold for adverse effect, but then when we're looking at whether there's a substantial adverse effect and we're looking at this particular question, we go to 638.

[00:30:35] Speaker 06:
And 638C governs en route flights and it says that things under 499 feet.

[00:30:43] Speaker 06:
Are are not don't don't trigger that now petitioners have put as they say declarations into the record They have put information into the record and what they have not put into the record is that people are actually flying over this area They haven't submitted any evidence from anybody using this airport say I normally fly Here where these wind turbines are going to be built at less than a thousand feet high.

[00:31:08] Speaker 06:
I do it every day right because that's what we're looking at

[00:31:13] Speaker 06:
not just the occasional weekend flight, but, you know.

[00:31:16] Speaker 05:
Anne says if its height is greater than 499 feet and it's within two statute miles.

[00:31:25] Speaker 05:
So if it's within, I don't even know what a two statute mile is of any regularly used VFR route.

[00:31:31] Speaker 05:
So these turbines are not 499 feet?

[00:31:36] Speaker 06:
No, they're all under 499 feet.

[00:31:38] Speaker 05:
Okay.

[00:31:40] Speaker 04:
Could you just very quickly respond to Mr. Armstrong's argument when he stood up that this case is completely controlled by Barnstable?

[00:31:52] Speaker 06:
Sure, Your Honor.

[00:31:53] Speaker 06:
In Barnstable, there were three airports in this area.

[00:31:57] Speaker 06:
It was a fairly congested area, and there was data showing multiple flights every day going

[00:32:04] Speaker 06:
In this area that they would not in this flight actually at the elevation, they would no longer be able to use it was over water planes often fly lower over water and the court didn't the court, you know, remanded because the agency hadn't considered that data.

[00:32:21] Speaker 06:
So we don't have data like this, and the data they put in the record, the information they put in the record, they don't have anybody saying that this is part of their regular flight path, that they know of a plane that flies over this area every day.

[00:32:35] Speaker 06:
We just don't have anything.

[00:32:37] Speaker 04:
All right, thank you.

[00:32:38] Speaker 04:
Okay, Judge Millett, Judge Santel, any other questions?

[00:32:41] Speaker 02:
Nothing further.

[00:32:41] Speaker 04:
Okay, thank you.

[00:32:43] Speaker 04:
Mr. Armstrong, you can have one minute.

[00:32:48] Speaker 03:
The position the agency advancing in this case is the exact same position rejected in Barnes-Dabble.

[00:32:54] Speaker 03:
This is a reading from Barnes-Dabble 2.

[00:32:57] Speaker 03:
In Barnes-Dabble 1, 659 Fed 3rd at 3435, this court held that the FA had misread its regulations by relying solely on 6-3-8C1.

[00:33:07] Speaker 03:
That's exactly what she's relying upon this case, Judge.

[00:33:13] Speaker 03:
other handbook to find no adverse effect on VFR operations because the turbines would not exceed 500 feet.

[00:33:19] Speaker 03:
The FAA had not addressed whether the turbines would have an adverse effect under 633, edit 35.

[00:33:26] Speaker 03:
Section 633 states that, quote, a structure is considered to have an adverse effect if at first is found to have a physical or electromagnetic radiation effect on the operation of navigation facilities.

[00:33:39] Speaker 03:
If so, then an adverse effect is relevant

[00:33:42] Speaker 03:
and exist where structure would require a change in IFAR flight altitude or VFR operation flight course or altitude or affect future VFR or IFAR operations.

[00:33:53] Speaker 03:
Handbook at section 633 ABCDE.

[00:33:57] Speaker 03:
The court found no apparent analysis.

[00:34:02] Speaker 03:
That's exactly what's happened here.

[00:34:04] Speaker 03:
It's exactly the same thing.

[00:34:07] Speaker 03:
It's the same thing.

[00:34:08] Speaker 02:
Thank you.

[00:34:09] Speaker 04:
Dave, did you have a question?

[00:34:12] Speaker 02:
Yeah, where is the best place in your brief to read about what this argument.

[00:34:17] Speaker 03:
Pages 678 of my reply brief.

[00:34:21] Speaker 02:
First in the reply brief.

[00:34:23] Speaker 03:
Yeah, my reply brief is a better discussion of this than in my

[00:34:26] Speaker 03:
of my primary brief, pages six, seven, and eight.

[00:34:28] Speaker 03:
I discussed this.

[00:34:29] Speaker 03:
This is not the first time I've raised this.

[00:34:32] Speaker 03:
I referenced 633, 634, and 635B in my reply brief.

[00:34:38] Speaker 05:
Is it in your opening brief at all?

[00:34:40] Speaker 03:
Yes, not to the fans in my reply brief.

[00:34:43] Speaker 03:
I referenced 63B1 in my opening brief, as well as 63B1.

[00:34:55] Speaker 02:
Okay.

[00:34:55] Speaker 02:
Thank you.

[00:35:00] Speaker 02:
That's all.

[00:35:02] Speaker 04:
Okay.

[00:35:02] Speaker 04:
Well, thank you.

[00:35:02] Speaker 04:
The case is submitted.