[00:00:01] Speaker 02:
Case number 20-1075 et al.

[00:00:03] Speaker 02:
Arapahoe County Public Airport Authority et al.

[00:00:06] Speaker 02:
Petitioners versus Federal Aviation Administration and Stephen Dixon in his capacity as Administrator of the Federal Aviation Administration.

[00:00:15] Speaker 02:
Ms.

[00:00:16] Speaker 02:
Bruch for the petitioners, Ms.

[00:00:17] Speaker 02:
Catalyst for the respondents.

[00:00:20] Speaker 00:
Good morning, Council.

[00:00:21] Speaker 00:
Ms.

[00:00:21] Speaker 00:
Bruch, please proceed when you're ready.

[00:00:23] Speaker 04:
Thank you, Your Honor.

[00:00:25] Speaker 04:
Good morning and may it please the court.

[00:00:28] Speaker 04:
My name is Kimberly Bruch and I represent the Arapahoe County Public Airport Authority and I'm also arguing on behalf of the other petitioners in this matter.

[00:00:37] Speaker 04:
In 2020, the FAA changed decades of flight patterns in the Denver metro area by moving flight tracks over areas which have never experienced such activity before as part of the overall redesign known as the Denver Metroplex.

[00:00:54] Speaker 04:
Prior to the Metroplex redesign, the arrival procedures for aircraft into Centennial Airport originated from the northeast.

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In particular, the New Bronco arrival procedure, which we outlined in our briefs, shifts the air traffic from the northeast to areas further north and then west of the airport.

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This approach also requires lower altitudes and have been historically utilized by the prior northeast approach.

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So overall, the new Bronco route is the Northeast arrival procedure, but requires aircraft to fly Northwest of the Denver area.

[00:01:35] Speaker 04:
The relocation of these flight paths means that portions of the Denver metro area that have never been subject to regular flights now routinely experience them.

[00:01:44] Speaker 04:
And this gives rise to the environmental concerns raised, including noise emissions and the safety concerns by the petitioners.

[00:01:55] Speaker 04:
Now, contrary to some of the suggestions made, we're not suggesting that the redesign itself created an increase in the number of flights or operations over the metro area.

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What it did is it changed the concentration of the flights.

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So that's why there are references to increased flight traffic throughout the briefing in this matter.

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So when you're looking at examining cumulative impacts

[00:02:21] Speaker 04:
It's the change in the concentration of the flights, not an increase in the number of operations that's important.

[00:02:29] Speaker 01:
Your principal client runs an airport or is the airport in Arapahoe County, correct?

[00:02:39] Speaker 04:
Yes, Your Honor.

[00:02:40] Speaker 01:
What's the evidence that noise will increase in Arapahoe County?

[00:02:50] Speaker 01:
Either, I mean, you didn't submit any affidavits on standing.

[00:02:56] Speaker 01:
What's the evidence in the record on that?

[00:02:58] Speaker 04:
So in the record, each of the petitioners extensively participated in the public workshop and comment process.

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So the affidavits weren't necessary because the written submissions by each of the petitioners that we have cited in the briefs

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outline the concerns and were submitted to the FAA directly.

[00:03:21] Speaker 04:
They outline the noise concerns based on the relocation of the flight patterns.

[00:03:29] Speaker 01:
So the agency found that this would affect something like 70 people in the whole state.

[00:03:38] Speaker 01:
And they're in Elbert and Jefferson County, just not Arapahoe County.

[00:03:45] Speaker 04:
Yeah, I think that the finding based on the small numbers of people was based on the evaluation based on an increase in the noise level, not the relocation of the flight patterns that changes the noise levels from one area to another.

[00:04:04] Speaker 04:
So it's a different analysis.

[00:04:08] Speaker 01:
Sorry, you lost me on that.

[00:04:10] Speaker 01:
You're claiming, as I understand it,

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You can't claim a parent's patrii injury.

[00:04:17] Speaker 01:
So now you're claiming a proprietary injury as a listener.

[00:04:21] Speaker 01:
It's someone who's going to be subject to increased noise, correct?

[00:04:27] Speaker 01:
Yes.

[00:04:27] Speaker 01:
So just walk me through the distinction you just made again in terms of listeners.

[00:04:33] Speaker 01:
I didn't get it.

[00:04:34] Speaker 04:
Sure.

[00:04:35] Speaker 04:
So when you're changing the entirety of the route, I think the noise analysis that was conducted that identifies the small numbers of individuals that the FAA believes would be affected is based on an analysis of whether there would be an increase in noise over those locations.

[00:04:55] Speaker 04:
it's different than looking at the fact that you're now relocating flight routes to where there has never been a noise concern before so it's taking it from.

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as the one example that we've kind of relied on the Bronco route, when you're moving the entire flight path from a Northeast direction where those residents, if you do a noise analysis, you may find that using the same flight routes, there's no increase in noise based on the redesign.

[00:05:26] Speaker 04:
But when you take those flights and you move them to an area that has never had a flight route over top of it,

[00:05:33] Speaker 04:
It's not an increase in the noise.

[00:05:35] Speaker 04:
It's the fact that you've now picked up and placed that route on top of an area that has experienced no noise before.

[00:05:42] Speaker 01:
And so in particular... Sorry, but that's an increase from zero, no?

[00:05:49] Speaker 04:
Yeah, yes.

[00:05:51] Speaker 04:
Which is different than the analysis that was conducted to identify those small numbers of people, which was to determine if an existing route would increase based on the level of noise.

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And so at one point, the FAA actually suggested that the noise complaints are best handled by the local airport in the EA.

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So they put the onus on Centennial Airport to deal with these new noise issues, but then argue that we don't have the standing or the ability to challenge the redesign, which creates those noise complaints

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that they're tasking us to handle.

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So I think there's also a direct link based on the FAA's own instructions related to how to deal with the increased noise situation that's created by the redesign.

[00:06:44] Speaker 00:
Can I ask you on historical preservation, and staying on standing for a minute, the opening brief, your opening brief doesn't mention it at all understanding.

[00:06:56] Speaker 04:
I'm sorry, which aspect, Your Honor?

[00:06:59] Speaker 00:
Just anything about historical, with Gilpin County and historical reservation, it's just not mentioned.

[00:07:04] Speaker 04:
I see.

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I think Gilpin County, at least initially in their documenting statement, mentioned their standing.

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And then I do believe in the opening brief, they argued that they had standing because the change in the area of protected interest

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was originally identified to include them.

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Then it was revised to exclude them prior to the release of the final EA based on originally, I think, a finding that they weren't going to experience any of the routes that were under the redesign.

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I think the issue that they raised in the opening brief was that once they moved what they referred to, I believe, as the Zimmer route,

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That put them directly under one of the new fight paths, but the area of interest was never revised then again to include Gilpin County.

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And so it was based on that procedural error that they originally relied upon for their standing.

[00:08:13] Speaker 00:
And that's in the opening brief?

[00:08:14] Speaker 00:
Oh, you mean in the argument section that the argument about Gilpin County should be taken to?

[00:08:20] Speaker 04:
Yeah, I think that's where Gilpin raised their issue with respect to standing, but they did include it in the opening brief.

[00:08:28] Speaker 00:
Okay.

[00:08:33] Speaker 01:
Just one more question on the geography.

[00:08:36] Speaker 01:
I'm just looking at a map.

[00:08:40] Speaker 01:
You said

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The basic import of this was to take a northeast flight path and move it to the north and to the west.

[00:08:57] Speaker 01:
We're just looking at the map.

[00:09:00] Speaker 01:
Centennial Airport is a good bit to the southwest of BIA.

[00:09:05] Speaker 01:
It's just hard to imagine that

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a Northwest approach would have any impact whatsoever on that airport?

[00:09:20] Speaker 04:
It's not the flights that are going into DIA, Your Honor.

[00:09:24] Speaker 04:
These are flights primarily that are on the approach route, the Bronco route, that is one of the primary concerns.

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And just to be clear, the redesign encompasses a much broader

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redesign of the flight routes really then some of the concerns, you know, that are specific to the petitioners.

[00:09:45] Speaker 04:
So we're talking about a subset of the overall.

[00:09:49] Speaker 04:
So the the Bronco route in particular and the Zimmer route that is referenced by Gilpin County are approach routes into Centennial Airport.

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So they're not they're not necessarily the flight routes that are utilized by DIA, although those are part of the overall redesign.

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So the route that goes extremely far to the north is one of the approach routes into Centennial.

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So they take you way up north of the metro area.

[00:10:19] Speaker 04:
Then you have to cut west over to the foothills, which I think it shows on the Bronco map.

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Then you come south again and have to take a pretty significant left turn at that point to come into the airport.

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And that's where you drop down to then

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leave the Bronco route and do your approach into Centennial.

[00:10:46] Speaker 00:
Okay.

[00:10:46] Speaker 00:
Make sure my colleagues don't have additional questions for you at this time, Ms.

[00:10:49] Speaker 00:
Brugge.

[00:10:50] Speaker 04:
Thank you.

[00:10:51] Speaker 00:
We'll hear from the government.

[00:10:53] Speaker 00:
Ms.

[00:10:53] Speaker 00:
Katz-Ellis.

[00:10:56] Speaker 03:
Thank you.

[00:10:57] Speaker 03:
Good morning and may it please the court.

[00:10:59] Speaker 03:
My name is Anna Katz-Ellis and I'm arguing on behalf of respondents, Federal Aviation Administration,

[00:11:06] Speaker 03:
and Stephen Dixon.

[00:11:08] Speaker 03:
If I could, Your Honors, I would like to first, to begin with the standing issue.

[00:11:13] Speaker 03:
Of course, this court must assure itself of its jurisdiction in order to review FAA's order.

[00:11:21] Speaker 03:
And in this case, the petition should be denied because petitioners have not established their standing to sue.

[00:11:29] Speaker 03:
It is not self-evident.

[00:11:31] Speaker 03:
They chose not to submit any affidavits

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And they failed to establish each element of standing by evidence as required in their opening brief.

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And in particular, petitioners have not established an adequate injury, in fact, to pursue either their NEPA or their NHPA claims, which are the only claims that are raised in their brief.

[00:11:57] Speaker 03:
And in Florida Audubon Society, your honors,

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This court en banc made very clear that to demonstrate an injury in fact for a NEPA claim, a plaintiff must show that the omission or insufficiency of an EIS may cause the agency to overlook the creation of a demonstrable risk, not previously measurable or the demonstrable increase of an existing risk of serious environmental impacts that imperil appellants particularized interest.

[00:12:26] Speaker 03:
They have not done this.

[00:12:27] Speaker 03:
And if I could take a moment to step back and explain what this project is,

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The Denver Metroplex project replaced 44 total arrival and departure procedures in the Denver Metroplex area with more technologically advanced newer procedures.

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Now these procedures are in existing flight paths and there are numerous maps and diagrams in the record that show these are in the areas of previously existing flight paths.

[00:13:02] Speaker 01:
And some of these are into and out of Centennial, as well as DIA?

[00:13:06] Speaker 01:
Yes, that's correct, Your Honor.

[00:13:08] Speaker 03:
That's correct, Your Honor.

[00:13:10] Speaker 03:
And the noise analysis, I would also like to take a moment to explain, because it's explained in the record at joint appendix 306.

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The noise analysis was conducted from ground elevation to 10,000 feet above ground level throughout the general study area, which encompassed more than 40% of Colorado's landmass.

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Now, the way that this was performed was that DNLs were calculated

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the average annualized day night sound level, which is the metric that FAA consistently uses and that this court has previously upheld, were calculated at one half nautical mile intervals throughout this area.

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And they were also calculated at additional special points, such as where there were specific cultural resources.

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And Judge Katz, as you mentioned, this only demonstrated that 71 people

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in 2009 and 121 people in 2014 would experience even a recordable noise increase from what they experienced if these procedures were not implemented at all.

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So it is not the case that FAA failed to evaluate certain changes or it evaluated it throughout this area.

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And petitioners have not demonstrated any injury in fact to any petitioner.

[00:14:53] Speaker 03:
Again, just to demonstrate to pursue either the NEPA or the NHPA claims.

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In their opening brief, so four of the petitioners are municipalities.

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And in their opening brief, they appeared to rely mostly on a parent's Patriot theory.

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Mountain aviation, they were presenting safety concerns, but they've not raised a safety challenge, which leaves Centennial Airport.

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the airport authority, which has asserted a proprietary interest.

[00:15:21] Speaker 03:
And they've mentioned the noise compatibility program, but they haven't established that this project will have any increased risk, serious increased risk of environmental harm, much less that that threatens to imperil the airport authority's proprietary interest in any way.

[00:15:43] Speaker 03:
So in this case,

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there really has been a failure to demonstrate that there is standing for this court to consider the claim.

[00:15:51] Speaker 03:
Ms.

[00:15:54] Speaker 03:
Brutch mentioned that these petitioners had participated in the process, but certainly that doesn't suffice to establish the requisite injury and fact.

[00:16:04] Speaker 03:
And while this is also a procedural claim, it is very clear that the injury and fact requirement is a hard floor that

[00:16:14] Speaker 03:
petitioners and plaintiffs must meet in every case.

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So it simply has not been established in this case.

[00:16:26] Speaker 03:
In the reply brief, they mentioned for the first time that the municipalities suffered harm to government-owned property, but they haven't specified a single harm to a single specific property.

[00:16:40] Speaker 03:
And again, their obligation was to demonstrate this by evidence in the open brief.

[00:16:46] Speaker 03:
And this made its first appearance in the reply brief.

[00:16:50] Speaker 03:
So on this record, it definitely is not self-evident, respectfully, Your Honors, and petitioners have not established it.

[00:17:02] Speaker 03:
I'll turn briefly to the NEPA analysis, you know,

[00:17:09] Speaker 03:
Also to mention this project was developed over the course of five years.

[00:17:14] Speaker 03:
The Federal Aviation Administration began looking at this project in 2014.

[00:17:20] Speaker 03:
There was a lengthy study phase and then a design and implementation phase where safety was the paramount concern.

[00:17:28] Speaker 03:
During that time, over the course of three years, FAA held 42 public briefings and meetings

[00:17:37] Speaker 03:
and it developed these procedures.

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And then after that, it had a very lengthy NEPA process.

[00:17:44] Speaker 03:
FAA took comment not only on the draft EA, but also on the final EA.

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And there are thousands of pages in the record in which FAA accepted and responded to comments.

[00:17:58] Speaker 03:
So petitioners had every opportunity to raise their concerns.

[00:18:03] Speaker 03:
They disagree, they don't like some of the procedures.

[00:18:07] Speaker 03:
but FAA did a very lengthy process here, and it addressed all of the environmental resource categories that it consistently addresses pursuant to its order, 1050.1f.

[00:18:22] Speaker 03:
And petitioners have fly-specced this EA, but they have not identified any environmental impact that FAA overlooked, nor have they demonstrated that any element of FAA's

[00:18:37] Speaker 03:
analysis was arbitrary or capricious in any respect.

[00:18:42] Speaker 03:
Also with respect to Gilpin County, your honor, Judge Sirten-Vassen, you are correct.

[00:18:50] Speaker 03:
They did not address standing at all in the brief.

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It's mentioned only in the merits portion of the brief.

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And as a correction, the Zimmer flight route does not fly over Gilpin County.

[00:19:03] Speaker 03:
It is north of Gilpin County.

[00:19:05] Speaker 03:
but the National Historic Preservation Act regulations establish a very clear process for compliance.

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And in this case, as we've explained in our brief, FAA followed that process to the letter.

[00:19:22] Speaker 03:
It reached out to the State Historic Preservation Officer early, very early in the process.

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It also obtained the Preservation Officer's agreement on delineating the area of potential effects

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according to where its noise analysis showed not only a significant but also a reportable noise increase, which is in fact a very small area.

[00:19:48] Speaker 00:
Oops, I hear a little feedback.

[00:19:50] Speaker 00:
I hope nobody else is hearing that.

[00:19:52] Speaker 00:
Can I just ask on Gilpin County on the standing part?

[00:19:56] Speaker 00:
Their opening brief does say on page 46 in connection with the merits that Gilpin County is adversely affected and impacted by the Denver Metroplex project and then goes on to

[00:20:06] Speaker 00:
make some arguments to that effect.

[00:20:08] Speaker 00:
Is that not tantamount to arguing injury?

[00:20:12] Speaker 03:
I think, Your Honor, it's an argument, but it's not evidence as required.

[00:20:16] Speaker 03:
And it's not the fact that they essentially say that we have historic resources, but that doesn't demonstrate that there's any actual, again, you need some increased risk of harm, some demonstration of some increased risk of harm to those resources.

[00:20:33] Speaker 03:
And they have essentially just said that there are resources here.

[00:20:36] Speaker 03:
So we submit respectfully, they have not met their burden on that point either.

[00:20:41] Speaker 03:
But also on that point, your honor, it's very clear that FAA was not required to consult with Gilpin County.

[00:20:50] Speaker 03:
Briefly, the historic preservation officer provided FAA with a list of counties and municipalities that had historic preservation ordinances, and FAA consulted with the counties

[00:21:03] Speaker 03:
on that list that fell within the area of potential effects.

[00:21:07] Speaker 03:
So FAA worked with the historic preservation officer.

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At the end of that process, FAA determined that the project would have no adverse effect on any historic property.

[00:21:18] Speaker 03:
The preservation officer concurred in that, and that fulfilled FAA's obligations under the regulations.

[00:21:27] Speaker 03:
If there are no further questions, Your Honor, we submit that the petition should be

[00:21:31] Speaker 03:
dismissed for lack of standing or in the alternative denied on the merits.

[00:21:38] Speaker 00:
Thank you, Ms.

[00:21:39] Speaker 00:
Quetzales.

[00:21:40] Speaker 00:
Ms.

[00:21:40] Speaker 00:
Bruch, we'll give you two minutes for your rebuttal.

[00:21:44] Speaker 04:
Thank you, Your Honor.

[00:21:46] Speaker 04:
I think that part of the issue here is that the petitioners overall, all the municipalities, including Gilpin,

[00:21:57] Speaker 04:
had the right to comment on the documents.

[00:22:01] Speaker 04:
I think that's undisputed under Section 4332.

[00:22:04] Speaker 04:
And so it's reasonable then that those interests should extend to challenging the document on top of all the other standing issues that the various municipalities raised.

[00:22:16] Speaker 04:
As I mentioned before, the airport has sort of been tasked with dealing with the

[00:22:22] Speaker 04:
increased noise complaints that are going to be the result of the Metroplex redesign, specifically from the FAA, that was their directive, that that's how that should be handled.

[00:22:34] Speaker 04:
And so they have a direct interest.

[00:22:36] Speaker 04:
And as the FAA sort of conceded a proprietary interest in managing the airport on that basis, if the standing is going to be so constrained, then the agency becomes insulated from judicial review, even where

[00:22:51] Speaker 04:
the action strain the scope of the regulatory authority.

[00:22:56] Speaker 04:
Here, not only the noise issues, but the increased fuel burn and the emissions that were raised by the airport.

[00:23:05] Speaker 04:
And these were all issues that were raised with the FAA before the EA was finalized.

[00:23:12] Speaker 04:
The FAA relies upon these public meetings and things, but the flaw here is that

[00:23:19] Speaker 04:
the municipalities and the airport in particular tried to participate in this process, tried to engage the FAA to try to raise these concerns practically and deal with these redesigned flight routes ahead of time so that we could avoid these issues.

[00:23:36] Speaker 04:
And they were essentially rebuffed.

[00:23:38] Speaker 04:
So even though they went through the motions of these public outreach actions,

[00:23:44] Speaker 04:
They really did not engage in the process.

[00:23:47] Speaker 04:
And so we do believe we have the standing, your honor, to challenge these.

[00:23:50] Speaker 04:
Thank you for your time.

[00:23:52] Speaker 00:
Thank you, counsel.

[00:23:53] Speaker 00:
Thank you to both counsel.

[00:23:54] Speaker 00:
We'll take this case under submission.