201 F. Supp.2d 64 (2002) | Cited 0 times | District of Columbia | April 15, 2002


The Town of Fairview, Texas ("Fairview" or "plaintiff") brings thiscase against the Department of Transportation, Federal AviationAdministration ("FAA") to enjoin further development of the McKinneyMunicipal Airport ("MMA") pending an environmental review. Presentlybefore the Court are Fairview's motion for a preliminary injunction andthe FAA's motion to dismiss. For the reasons stated below, Fairview'smotion for a preliminary injunction is denied and the FAA's motion todismiss is granted.


Fairview is a semi-rural town of 5,000 citizens located less than amile from MMA, a public-use airport that is sponsored, owned, andoperated by the City of McKinney, Texas ("McKinney"). MMA was establishedin the 1970s, and over the years, the planning and development of MMA hasbeen financed, in part, with funds provided by the FAA under the AirportImprovement Act of 1982, 49 U.S.C. § 47107, et seq., and administeredby the State of Texas. MMA is designated as a reliever airport forDallas/Ft. Worth International Airport, which is located less than 30miles away.

In February 1999, Fairview filed an administrative claim with the FAAin accordance with 14 C.F.R. § 16 alleging that McKinney was inviolation of certain grant assurances under 49 U.S.C. § 47107.1Fairview claimed that MMA poses a threat to the residents of Fairviewbecause a nearby landfill and other environmental factors attract birdsthat traverse the airport flight pattern south of MMA. Town of Fairviewv. City of McKinney, 2001 WL 88072, at *1 (F.A.A. January 23, 2001); Townof Fairview, Texas v. City of McKinney, Texas, 2000 WL 1100236, at *1(F.A.A. July 26, 2000). Fairview also alleged that McKinney had not beenconsidering Fairview's interests, that McKinney had violated air andwater quality standards, and that McKinney had not maintained an AirportLayout Plan ("ALP")2 that accurately depicted the observed increasein flight patterns and corporate jetaircraft service. Town ofFairview, 2001 WL 88072, at *14-16. Fairview's claims were framed asviolations of grant assurances numbers 5 (preserving rights and powers),7 (consideration of local interest), 10 (compliance with air and waterquality standards), 19(a) (operation and maintenance), 20 (mitigation ofbird hazard), and 29 (maintaining an ALP). In addition, Fairview raisedvarious claims under the National Environmental Policy Act ("NEPA"),42 U.S.C. § 4321, et seq., including a challenge to a 1988environmental assessment and an allegation that the FAA was required toconduct an environmental review of certain planned constructionprojects. Id. at *17-18.

In the FAA's Final Decision and Order issued in January 2001, the FAAAssociate Administrator affirmed that McKinney had violated grantassurances numbers 19(a) and 20, and upheld an order requiring McKinneyto take certain steps to mitigate the bird hazard and close thelandfill. Id. at *20-22. The Associate Administrator also concludedthat NEPA claims against FAA could not be raised in a Part 16administrative proceeding. Id. at *17-20. Fairview petitioned the Courtof Appeals for the District of Columbia Circuit for review of the FAA'sfinal decision. At the time Fairview filed the complaint in this case,that appeal was still pending.

In its present complaint filed on January 18, 2002, Fairview presents59 pages of highly detailed allegations. At heart, however, Fairview'saction and its motion for a preliminary injunction are directed at aplanned expansion at MMA. Fairview asserts that for the first severalyears of MMA's existence, Fairview understood that MMA was focused onproviding commercial airspace for recreational private pilots, and was ineffect a "Saturday Pilot" general aviation airport. In 1999, however,Fairview became aware that McKinney was planning a major expansion ofMMA, including the addition of a runway and increased operationalservices, for the purpose of turning MMA into an economic driver forMcKinney. This planned expansion, Fairview alleges, has been undertakenwith the FAA's permission, and has been financed, in part, with federalfunds provided by the FAA and administered by the Texas Department ofTransportation. Fairview asserts that it also expects McKinney to seekreimbursement from the FAA for funds that McKinney has obtained fromprivate and municipal sources.

Fairview supports its allegations about the anticipated airportexpansion with several declarations from Cynthia Kalina-Kaminsky, anengineering consultant who has been researching developments at MMA by,among other things, following the activities of McKinney municipalcommittees, collecting press reports, and analyzing MMA's Master Plan andALP. See Declaration, Supplemental Declaration, Second SupplementalDeclaration, Third Supplemental Declaration, and Fourth SupplementalDeclaration of Cynthia Kalina-Kaminsky. According to Ms.Kalina-Kaminsky, McKinney has commenced planning, land purchases, andfinancing activities for anexpansion of MMA "that will increasethroughput of planes, allow for an increase in plane size to accommodatecargo jets, and change the nature of the airport from a small, privaterecreational general aviation airport to an airport with strong cargooperations." Supp. Kalina-Kaminsky Dec. ¶¶ 6-7, 9, and 52. Based on herresearch, Ms. Kalina-Kaminsky anticipates the building of at least oneadditional runway, the development of a thoroughfare for truckingtraffic, an expansion of through-the-fence operations,3 theconstruction of a new taxiway, the relocation of fuel farms,4 and theconstruction of a new control tower. Id. ¶¶ 7, 9-10, 18-20, 23-24,25-28, and 30. Ms. Kalina-Kaminsky opines that the various constructionactivities planned at MMA are not consistent with its existing MasterPlan and ALP. Id. ¶¶ 8, 19, 26, 29-30, 33, and 42.

Fairview alleges that the expected expansion of MMA, as described byMs. Kalina-Kaminsky and as set forth in Fairview's Complaint, will have avariety of detrimental effects. According to Fairview, air and waterquality, cultural resources, and flora and fauna in surrounding wildlifeareas will all be adversely affected by the expansion. In addition,Fairview suggests, the increase in jet traffic that will inevitablyaccompany MMA's expansion will create noise problems and aggravate thebird hazard. Indeed, Fairview submits that it has already observed anincrease in jet traffic since January 2002. Fairview also points to theopening of a customs office at MMA in October 2001,5 and argues thatincreased introduction of cargo from foreign locations poses greaterimport risks.

Beyond its allegations focused on the planned airport expansion,Fairview complains about certain activities at MMA that do not appear tobe directly related to the expansion. For example, Fairview alleges thatMMA poses a security threat because there are no pilot or passengersecurity checks at MMA, airport personnel are not required to wearidentification, and the gates of the airport remain open and unattendedthroughout the day. In addition, Fairview complains that the FAA'sresponse to the long-standing bird hazard continues to be inadequate andthat the FAA has not been enforcing MMA's compliance with a non-standardflight pattern. Fairview also refers to various alleged violationscommitted by the FAA in the past, including its approval of constructionprojects despite MMA's alleged failure to comply with FAA environmentalorders.

Fairview frames its factual allegations into five separate counts. Inits First Count, Fairview alleges that under NEPA the FAA must completean Environmental Impact Statement ("EIS"), including a noise study,before permitting any expansion at MMA. In Count Two, Fairview allegesthat the FAA has violated 14 C.F.R. § 91.119 by failing to ensure thesafe operation of MMA. In its Third Count, Fairview alleges that the FAAhas violated 41 U.S.C. § 44701 by failing to adopt appropriatesecurity measures. Fairview claims in its Fourth Count that the FAA hasviolated 41 U.S.C. § 47107 by failing to ensure McKinney's compliancewith its obligations under certain grant assurances.6 Specifically,Fairview claimsthat the FAA: has failed to ensure that McKinney hasmaintained good title to the land surrounding the airport (grantassurance #4); has failed to require that fair consideration be given tothe interest of the community near where MMA is located (#7); has failedto require that MMA be operated in a safe and serviceable condition(#19); has failed to require mitigation of the bird hazard (#20); and hasfailed to prohibit expansion not included in an approved ALP (#29).Finally, in its Fifth Count, Fairview seeks a declaratory judgment thatthe FAA has negligently overseen MMA.

On February 13, 2002, the FAA moved to dismiss Fairview's claims forlack of subject matter jurisdiction and failure to state a claim. Asdiscussed more fully below, the FAA's motion is based, in part, on thetheories that Fairview has not properly exhausted its administrativeremedies and that the D.C. Circuit has exclusive jurisdiction overcertain of Fairview's claims.

Presumably in response to the FAA's motion, Fairview voluntarilywithdrew its appeal pending in the D.C. Circuit on February 21, 2002.Even more importantly, Fairview narrowed its claims in this case. In itsreply brief, Fairview explained that, as a factual matter, its action wasbased only "on the current expansionary activity at the MMA and the plansof the activity to come," and that "additional information from prioryears . . . set forth in Fairview's Complaint and Motion forInjunction . . . was provided as background." Fairview Reply Brief at9. At a hearing, Fairview further stated that, as a legal matter, theonly claim Fairview was continuing to maintain was its claim under NEPA.

Although Fairview has set forth varying iterations of its request forrelief, it appears that Fairview presently seeks an injunction: 1)requiring the FAA to suspend all expansion activities at MMA until theFAA conducts an EIS; 2) requiring the FAA to suspend all federal fundingto McKinney until an EIS is performed; 3) requiring a publicpronouncement of what the expansion plans for MMA are; and 4) halting theincremental increase in jet traffic over Fairview that has allegedlyoccurred since the beginning of 2002.


The FAA has moved to dismiss Fairview's entire complaint for lack ofsubject matter jurisdiction and failure to state a claim. BecauseFairview has decided to pursue its NEPA claim alone, the Court willdiscuss Fairview's other claims only briefly before moving to a moresubstantive discussion of Fairview's NEPA claim.

I. 49 U.S.C. § 47107 — Alleged Failure to Ensure Compliance with Grant Assurances

The Secretary of Transportation has authority under 49 U.S.C. § 47107to approve a project grant application upon receipt of written assurancesfrom the airport sponsor. In its Complaint, Fairview alleges that theFAA has improperly allowed McKinney to violate several written grantassurances.

As noted above, Fairview previously brought claims in a Part 16administrative proceeding alleging that McKinney had breached severalgrant assurances. In fact, Fairview's Part 16 claim raised four of thefive grant assurances (numbers 7, 19, 20, and 29) about which Fairviewnow complains in this action. To the extent that Fairview is seeking adetermination that the FAA wrongfully allowed McKinney to violate thesesame grant assurances, and to the extent that the factual basis forMcKinney's alleged violation isthe same as in the Part 16 proceeding,Fairview essentially seeks judicial review of the FAA's decision in thePart 16 proceeding. The parties agree, however, that such a review isvested exclusively in the courts of appeals.7 See14 C.F.R. § 16.247 (a person may seek judicial review in the courtsof appeals pursuant to 49 U.S.C. § 46110); Town of Fairview, 2001 WL88072, at *21 (directing Fairview to file any appeal in the courts ofappeals); 49 U.S.C. § 46110(c) (the courts of appeals have "exclusivejurisdiction" over an appeal from an order under this part). The factthat Fairview has now withdrawn its appeal to the D.C. Circuit does notenable Fairview to bring its claim here instead. See City of Rochesterv. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979) ("If . . . there exists aspecial statutory review procedure, it is ordinarily supposed thatCongress intended that procedure to be the exclusive means of obtainingjudicial review in those cases to which it applies.").

To the extent that Fairview's allegations about grant assurances have adifferent factual basis than the claims Fairview brought in its earlieradministrative proceeding, Fairview's proper recourse is to seekadministrative review of its allegations against McKinney. See14 C.F.R. § 16.1, et seq. (providing administrative complaint processfor all proceedings involving federally-assisted airports arising outof, inter alia, grant assurances). If Fairview is dissatisfied with theFAA's decision on these claims, Fairview may seek judicial review in anappropriate court of appeals, which has exclusive jurisdiction. See14 C.F.R. § 16.247; 46 U.S.C. § 46110(c). Accordingly, withrespect to any new grant assurance allegations, Fairview's claims must bedismissed because Fairview has not exhausted its administrative remediesand because this Court would lack jurisdiction over any appeal.

II. 14 C.F.R. § 91.119 — Alleged Failure to Ensure Safe Operation of MMA

Operation of an aircraft below 1,000 feet over any congested area of acity, town, or settlement is prohibited by 14 C.F.R. § 91.119.Fairview's claim under this provision resembles, at least in part,complaints about bird migration and about MMA's alleged failure to followa non-standard flight plan that Fairview previously raised in its Part 16administrative proceeding. To the extent that the factual basis for thepresent claim is the same as in that prior administrative proceeding,Fairview's allegations should be dismissed because review of the Part 16proceeding is vested exclusively in the courts of appeals, as discussed inPart I above.

To the extent that Fairview's claim has a different factual basis notalready the subject of a Part 16 proceeding, Fairview's initial recoursemust still be through the FAA's administrative process. See14 C.F.R. § 16.1, et seq.; 14 C.F.R. § 13.5 ("Any person may filea complaint with the Administrator with respect to anything done oromitted to be done by any person in contravention of any provision of anyAct or of any regulation or order issued under it, as to matters withinthe jurisdiction of the Administrator."). By declining to seek a remedythrough an FAA administrative proceeding, Fairview has failed to exhaustits administrative remedies, and its claims should be dismissed. SeeMcKart v. United States, 395 U.S. 185, 193 (1969) (a litigant isgenerally required to exhausthis administrative remedies before seeking judicial relief).8

III. 49 U.S.C. § 44701 — Alleged Failure to Require MMA to Adopt Appropriate Security Measures

The FAA's duties with regard to "promot[ing] safe flight of civilaircraft in air commerce" are set forth in 49 U.S.C. § 44701.Fairview's claim under this section is based upon its allegation that theFAA has failed to monitor MMA's efforts to maintain physical security atthe airport. See Complaint ¶¶ 444-53.

As the FAA points out, any complaint under 49 U.S.C. § 44701 wouldhave to be raised initially in an FAA administrative proceeding. See49 U.S.C. § 46101 ("A person may file a complaint in writing withthe . . . Administrator of the Federal Aviation Administration withrespect to aviation safety duties and powers designated to be carried outby the Administrator [] about a person violating this part or arequirement prescribed under this part."). Moreover, jurisdiction overany appeal from such a proceeding would again be vested solely in thecourts of appeals. See 49 U.S.C. § 46110(c).Consequently, Fairview has failed to exhaust its administrative remedies,and may not bring an action in this Court.

IV. 42 U.S.C. § 4321, et seq. — Alleged Violation of NEPA

Fairview's remaining claim in this action — and apparently theonly claim that Fairview is continuing to pursue — is that the FAAviolated NEPA by failing to conduct an environmental evaluation and anoise study before allowing McKinney to proceed with expansionaryactivity at MMA.9 NEPA, of course, requires federal agencies toprepare a detailed EIS for all "major Federal actions significantlyaffecting the quality of the human environment."42 U.S.C. § 4332(2)(C). The FAA moves to dismiss Fairview's NEPAclaim on the grounds that there is no reviewable agency action and thatFairview's claim is not ripe.

A. No Private Right of Action Under NEPA

The FAA notes, as a preliminary matter, that NEPA does not provideFairview with a private right of action. Any claim underNEPA, the FAAasserts, is properly brought under the Administrative Procedures Act("APA"), 5 U.S.C. § 702, which Fairview has not cited in itsComplaint. In response, Fairview contends that it has an implied rightof action under NEPA. Fairview urges the Court to apply the four-prongtest employed by the Fifth Circuit in M. Noe v. Metro. Atlanta RapidTransit Auth., 644 F.2d 434, 436 (5th Cir. 1981), to determine theexistence of an implied right of action under NEPA.

Fairview's arguments are unpersuasive. The law in this Circuit isclear that no private right of action exists under NEPA. See, e.g.,Florida Audubon Society v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996)("because NEPA does not offer a private right of action for individualplaintiffs seeking to enforce the EIS procedural requirement, a privateindividual must found his right to sue on some other basis"); PublicCitizen v. United States Trade Representative, 5 F.3d 549, 551 (D.C.Cir. 1993) (because Congress did not create a private right of actionunder NEPA, plaintiff must bring its claim for judicial review under theAPA); Public Citizen v. Office of the United States TradeRepresentative, 970 F.2d 916, 918 (D.C. Cir. 1992) ("NEPA does not createa private right of action"); Nat'l Coalition to Save Our Mall v. Norton,161 F. Supp.2d 14, 19-20 (D.D.C. 2001) (in order to enforce NEPA's EISrequirements, plaintiffs must bring their allegations under a separatestatutory scheme, typically the APA).

Moreover, nothing in the M. Noe decision provides a basis foridentifying a new implied private right of action. There, the FifthCircuit rejected the argument that there is a private right of actionunder NEPA, and expressly concluded that "there was no legislative intentto grant a private remedy under NEPA." 644 F.2d at 439. Accordingly,there is no basis for Fairview to bring a claim directly under NEPA, andthe Court will treat Fairview's NEPA claim as if it were assertedpursuant to the APA.

B. Reviewability of Fairview's NEPA Claim Under the APA

The APA provides an action for injunctive relief for persons who havebeen "`adversely affected or aggrieved by agency action within themeaning of a relevant statute.'" Public Citizen, 970 F.2d at 918(quoting 5 U.S.C. § 702). The APA "permits review only of `finalagency action.'" Id. (quoting 5 U.S.C. § 704). Here, the FAA arguesthat Fairview's NEPA claims are not judicially reviewable because therehas not yet even been an administrative consideration of MMA's plannedexpansion, much less a "final agency action."

In response, Fairview argues that McKinney has already taken the firststeps in its expansion of MMA by purchasing land, raising money, andengaging in various planning activities. Fairview asserts thatMcKinney's preliminary activities created a duty for the FAA to examinethe cumulative impact of all the anticipated expansionary activities atthe MMA. The FAA's failure to conduct an EIS by now, Fairview argues,constitutes "recalcitrance in the face of duty," which is reviewable by adistrict court. See Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C. Cir.1987) (agency inaction is reviewable under APA where it constitutes"`agency recalcitrance . . . in the face of a clear statutory duty . . .of such magnitude that it amounts to an abdication of statutoryresponsibility'" (citation omitted)).

The Court does not agree that there is reviewable agency actionhere.10 As aninitial matter, the administrative processwith respect to the anticipated construction has only recently begun. Asthe FAA explains, the normal process by which an airport sponsor notifiesthe FAA of a proposed construction project is to submit an application(called a "form 7460-1") to its state department of transportation.Third Declaration of James M. Nicely ¶ 8. Once that department hasdetermined that the form 7460-1 is complete, it forwards the form to theFAA for appropriate action. Id. ¶ 8. In the instant case, McKinney hassubmitted to the Texas Department of Transportation seven forms 7460-1for contemplated projects. Of these seven forms, three were formallytransmitted to the FAA and received by the FAA in late January andFebruary 2002; two were submitted to the FAA as a courtesy on February26, 2002, but have not yet been formally transmitted to the FAA; one hasbeen forwarded to the FAA but is incomplete; and one has reportedly beensent to the FAA but apparently the FAA has not yet been able to confirmreceipt. Declaration of James M. Nicely (executed on March 7, 2002) ¶8; Third Nicely Dec. ¶¶ 9, 12; FAA's Response to Plaintiff's Rebuttal toDefendant's Notice at 2. Given the very recent receipt of these forms,the FAA has hardly had a reasonable chance to review the various projectsproposed by McKinney. At this time, the FAA has not issued any rulingconcerning the environmental impacts of the proposed projects nor has itapproved the airport expansion that Fairview anticipates. There has thusbeen no final agency action. See Bennet v. Spear, 520 U.S. 154, 178(1997) (agency action is final if it marks the consummation of theagency's decision-making process and either determines rights orobligations, or has legal consequences); Independent Petro. Assoc. ofAm. v. Babbit, 235 F.3d 588, 594 (D.C. Cir. 2001) (in determining whetheragency action is final, the court should consider whether the agency'sposition is definitive and whether it has a direct and immediate effect onthe day-to-day business of the parties).

Moreover, there is no evidence that the FAA has been recalcitrant inthe face of a duty. The FAA has specifically "acknowledge[d] that anenvironmental assessment would be required before . . . an expansioncould begin." Defendant's Opposition Memorandum at 9. The FAA alsonotes that "prior to approval of either a change to the ALP or of federalfunding, FAA would be required to address environmental considerationsunder NEPA, CEQ regulations, and FAA Orders." Defendant's OppositionMemorandum at 24; see also Defendant's Response to Plaintiff's Rebuttalto Defendant's Notice at 2 ("In any event, no change to an airport layoutplan . . . may commence until the appropriate environmental reviewpursuant to the National Environmental Policy Act . . . has been conductedand the ALP change approved."). Thus the FAA agrees with Fairview thatno airport construction requiring a change to the ALP can take placeuntil the FAA fulfills its obligations under NEPA. Indeed, when the FAAbecame aware that some construction hadbegun at MMA at the beginning ofJanuary, the FAA promptly advised McKinney that it may not construct anyfacility located on airport property without an approved change to theALP, and instructed MMA to stop construction until a change to the ALPwas approved. Declaration of James M. Nicely (executed on February 12,2002) ¶ 11. The mere fact that the FAA has not yet conducted anenvironmental review in the short time period since it began receivingthe required notices hardly provides a basis for finding that the FAA hasbeen recalcitrant in the face of a duty.

Fairview's claim of a NEPA violation because the FAA has not assessedthe cumulative impact of the expansion since McKinney began preliminaryactivities is not persuasive. Each of the cases cited by Fairview forthe proposition that agencies must assess the cumulative impact ofrelated projects involved review of an agency's final determinationregarding the environmental impact of the project subsequent to someconsideration by the agency of a project's environmental effects. SeeCity of Grapevine, Texas v. Dep't of Transportation, 17 F.3d 1502,1503-04 (D.C. Cir. 1994) (reviewing final environmental impact statementby the FAA); Citizen's Alert Regarding the Environment v. United StatesDep't of Justice, No. 95-1702, 1995 WL 748246, at *1, 5 (D.D.C. December8, 1995) (reviewing environmental impact statement and environmentalassessment); Airport Impact Relief, Inc. v. Wykle, 192 F.3d 197, 200-01(1st Cir. 1999) (reviewing decision of agency, based on state'senvironmental evaluation, not to prepare supplemental environmentalimpact statement); Morongo Band of Mission Indians v. FAA, 161 F.3d 569,579 (9th Cir. 1998) (reviewing conclusion in the FAA's environmentalassessment that no EIS was required); Citizens for Responsible AreaGrowth v. Adams, 477 F. Supp. 994, 997, 1003-04 (D.N.H. 1979) (reviewingthe FAA's proposed finding, to be issued "imminent[ly]", that no EIS wasrequired). These cases do not support the proposition that a courtshould intervene before a final decision is rendered and before an agencyhas had an opportunity to assess environmental effects of a projectduring the course of its normal administrative review. The fact thatMcKinney itself has undertaken certain preliminary activities does notrender the FAA delinquent in reviewing potentially related projectsdescribed in the applications that the FAA has only recently received.

C. Ripeness of Fairview's NEPA Claim

The FAA also seeks to dismiss Fairview's NEPA claim on the ground thatit is not ripe. Under the ripeness doctrine, "an Article III courtcannot entertain the claims of a litigant unless they are`constitutionally and prudentially ripe.'" Wyoming Outdoor Council v.U.S. Forest Service, 165 F.3d 43, 48 (D.C. Cir. 1999) (quoting LouisianaEnvtl. Action Network v. Browner, 87 F.3d 1379, 1381 (D.C. Cir. 1996)).Courts must "go beyond constitutional minima and take into accountprudential concerns which in some cases may mandate dismissal even ifthere is not a constitutional bar to the exercise of . . . jurisdiction."Id. To this end, a court must examine the "fitness of the issues forjudicial review" and the "hardship to the parties of withholding courtconsideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).Specifically, courts should consider "(1) whether delayed review wouldcause hardship to the plaintiffs; (2) whether judicial intervention wouldinappropriately interfere with further administrative action; and (3)whether the courts would benefit from further factual development of theissues presented." Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726,733 (1998)

Applying these factors to the instant case, it is clear that Fairview'sNEPA claim is not ripe. To begin with, there is insufficient evidencethat delayed review would cause hardship to Fairview. Fairview concededat argument that there is no construction presently taking place at MMA.And although Fairview has identified several construction projects thatit expects McKinney to begin shortly, construction on these projects isnot imminent. To the contrary, the FAA has specifically instructedMcKinney that no further construction may be undertaken without therequired approvals to MMA's ALP, and has acknowledged that changes toMMA's ALP will not be approved until environmental considerations havebeen addressed. There is thus little basis for a claim thatenvironmental harm to Fairview is "certainly impending." Wyoming OutdoorCouncil, 165 F.3d at 48. Moreover, Fairview's right to challenge theexpected construction in the future is in no way prejudiced bywithholding jurisdiction at the present time. Ohio Forestry Ass'n, 523U.S. at 734 (no hardship where plaintiff would "have ample opportunitylater to bring its legal challenge at a time when harm is more imminentand more certain").11

The second factor also weighs heavily in favor of rejecting Fairview'sclaims as unripe. Fairview's basic complaint is that the FAA has failedto evaluate the environmental impact of the proposed expansion of MMA.But Fairview has brought this action so prematurely that the FAA has noteven had a reasonable opportunity to conduct such an evaluation —which the FAA readily agrees may be required. The Court has no evidencethat FAA will fail to apply its expertise in addressing the environmentalconcerns posed by any proposed MMA expansion. For the Court to interveneat this juncture, especially in the absence of any imminent harm, wouldconstitute an inappropriate interference with the administrativeresponsibility that has been properly allocated to the FAA. See WyomingOutdoor Council, 165 F.3d at 50 (premature review of NEPA claims deniesthe agency an opportunity to apply its expertise).

It also appears that further factual development would be beneficial tothe Court. Although Fairview attempts to couch its allegations in termsof what the FAA has done or has not done thus far, at its core Fairview'sconcern is that the FAA will not timely and fully assess the cumulativeenvironmental impact of MMA's proposed expansion. See, e.g., Complaint¶¶ 427-30. Judicial intervention in such settings is precisely what theripeness doctrine is intended to forestall. The role of the federalcourts is to address concrete controversies, not to become"entangle[d] . . . in abstract disagreements over administrativepolicies." Abbott Labs, 387 U.S. at 148; National Treasury EmployeesUnion v. United States, 101 F.3d 1423, 1431 (D.C. Cir.1996) ("Prudentially, the ripeness doctrine exists to prevent the courtsfrom wasting our resources by prematurely entangling ourselves in abstractdisagreements."). At this point, there is not even an "abstractdisagreement[] over administrative policies," because the FAA andFairview agree that MMA should not be permitted to begin its on-the-groundexpansion before the FAA has had a chance to review environmental andother concerns. Unless and until Fairview is able to present the Courtwith a fuller record demonstrating that the FAA has failed to comply withits obligations under NEPA after being given an opportunity to do so,prudence dictates that the Court refrain from hearing the NEPA claims.See Wyoming Outdoor Council, 165 F.3d at 50 (NEPA claim unripe where stateof factual development in record precluded court from decidingintelligently if defendant had met its NEPA obligations).

Furthermore, at this time, the factual record does not indicate theexistence of a proposed "major federal action" triggering any obligationsunder NEPA. The FAA has not approved any change to MMA's ALP or evenconducted an environmental assessment, much less issued an EIS or aFinding of No Significant Impact. And even though Fairview may expectMcKinney to seek reimbursement from the FAA for private funds thatMcKinney has raised or expended for airport expansion, Fairview does notallege that any reimbursement request has been approved. See Macht v.Skinner, 916 F.2d 13, 17 (D.C. Cir. 1990) (state's hope that the federalgovernment will fund a project is not sufficient federal involvement toconstitute a "major federal action"). In fact, McKinney has not beenawarded any federal grants since October 11, 1999, and the FAA representsthat no grant, including any for design or construction, will be approveduntil the FAA addresses environmental considerations under NEPA andrelevant CEQ and FAA regulations. See Ehly Dec. ¶ 6; Howard Dec. ¶ 6;Nicely Dec. (executed on February 12, 2002) ¶ 9. Although Fairviewargues that, according to the Texas Department of Transportation, variousfederal funds are presently available to MMA (see Third Supp.Kalina-Kaminsky Dec. ¶¶ 5-6), the FAA explains that these funds do notrepresent new grants, but rather grant money contingent upon approval ofa proper application or incremental payments under previously awardedgrants.12 See FAA's Response to Fairview's Rebuttal to Defendant'sNotice at 3; Ehly Dec. ¶¶ 6, 8. Contingent funding, or fundingoriginally awarded for other uses, hardly constitutes a "firm commitment"by the federal government to fund or approve the expansion planscurrently on the table. See Macht, 916 F.2d at 17 (no "major federalaction" where agency's actions did not indicate a "firm commitment" tofund project); see also Wyoming Outdoor Council, 165 F.3d at 49 ("the lawdoes not require an agency to prepare an EIS until it reaches thecritical stage of a decision which will resultin `irreversible andirretrievable commitments of resources' to an action that will affect theenvironment" (internal citation omitted)).13 See FAA's Response toFairview's Rebuttal to Defendant's Notice at 3; Ehly Dec. ¶ 8.

If and when the FAA proposes to act in a manner that does constitute amajor federal action within the meaning of NEPA, Fairview is free to"renew [its] claim that an EIS is required . . . or question the scope ofthe EIS." Id. At this time, however, Fairview's NEPA claim is simplynot ripe.14


Because Fairview has not exhausted its administrative remedies, andbecause this Court lacks jurisdiction to hear an appeal from FAAadministrative proceedings, Counts Two, Three and Four of Fairview'sComplaint must be dismissed. Moreover, with respect to the NEPA claim inCount One of the Complaint, Fairview has not identified a final agencyaction under the APA and has not presented a case or controversy that isripe for review; it too must therefore be dismissed. Accordingly,Fairview's motion for a preliminary injunctionis denied as moot. In theabsence of any viable claim for injunctive relief, Fairview's claim for adeclaratory judgment in Count Five of the Complaint is also dismissed.

A separate order has been issued on this date.


Upon consideration of Defendant's Motion to Dismiss and Plaintiff'sMotion for a Preliminary Injunction, the submissions of the parties, andthe hearing on March 7, 2002, it is hereby

ORDERED that defendant's motion to dismiss be and hereby is GRANTED forthe reasons stated in the Court's Memorandum Opinion issued on thisdate; and it is further

ORDERED that plaintiff's motion for a preliminary injunction be andhereby is DENIED as moot.

1. Grant assurances are conditions to federal funding that are bindingupon an airport sponsor that applies for a grant under the FAA's AirportImprovement Program.

2. An ALP is a depiction of certain elements of an airport, includingits boundaries, facilities, and non-aviation areas. Town of Fairview,2001 WL 88072, at *15.

3. "Through-the-fence" is a term of art used in airport operations "todenote a plan whereby a private landowner is allowed access to publiclyowned airport property, subject to certain conditions adapted from FAArecommendations, in order to conduct a private business inairport-related enterprises." Oxley v. City of Tulsa, 794 P.2d 742, 745(Ok. 1990).

4. Fairview alleges that McKinney has already built a temporary fuelfarm, and plans to build a permanent fuel farm. See Complaint ¶¶187-204.

5. This customs office is not presently manned on a full-time basis,although Fairview expects it to be within the next few months. ThirdSupp. Kalina-Kaminsky Dec. ¶ 21.

6. Fairview's Complaint cites not to 49 U.S.C. § 47107, but to49 U.S.C. § 47101, which contains a statement of United Statespolicies regarding aviation. However, because Fairview refers to49 U.S.C. § 47107 in its opening brief (at p. 1), and because thatsection governs grant assurances, the Court will assume that Fairview isbringing its grant assurances claim under that section.

7. Fairview notes that it "understands that it must appeal to the FAAor the Court of Appeals for the D.C. Circuit for additional reliefconcerning McKinney's violation of its Grant Assurances." Fairview Replyat 9 n. 2.

8. Fairview raises a due process challenge to the requirement that itexhaust its administrative remedies with respect to safety and securityclaims. Because Fairview has now apparently abandoned its safety andsecurity claims, the Court will not discuss those arguments in detail.The Court observes, however, that, to the extent that Fairview has notpreviously brought its safety and security claims to the FAA's attention,Fairview has little basis for concluding that an administrative complaintwould be futile or inadequate. Furthermore, to the extent thatFairview's claims are essentially the same as those alleged in itsadministrative proceeding, Fairview's recourse was to appeal the Part 16determination to a court of appeals, not to file a new claim in thisCourt. The Court is also not persuaded that Fairview has made a "clearshowing of irreparable injury" that entitles it to avoid seekingadministrative review. See Randolph-Sheppard Vendors of Am. v.Weinberger, 795 F.2d 90, 108 (D.C. Cir. 1986). The potential harm toFairview from a possible bird strike or from the alleged inadequatesecurity at MMA, although worrisome, remains speculative. Thecircumstances presented here do not warrant having this Court impose aremedy without the benefit of the application of FAA expertise to theissues.

9. Because Fairview has stated unequivocally that its NEPA allegationsrelate only to the anticipated construction at MMA, the Court will focusits analysis on this issue. As noted above, in its Part 16 proceeding,Fairview raised other NEPA allegations, such as alleged deficiencies inthe FAA's 1988 environmental assessment. Town of Fairview, 2000 WL1100236, at *25-27.

10. Even if there were final agency action, jurisdiction to reviewsuch an action would generally be confined to the courts of appeals. See49 U.S.C. § 46110; Sutton v. U.S. Dep't of Transportation, 38 F.3d 621,625 (2d Cir. 1994) (courts of appeals had exclusive jurisdiction overchallenge to FAA's funding for expansion projects); Nat'l Parks andConservation Assoc. v. FAA, 998 F.2d 1523, 1528 (10th Cir. 1993) (courtof appeals had jurisdiction over FAA determination regardingenvironmental impact of proposed projects); City of Alexandria v. FAA,728 F.2d 643, 646 (4th Cir. 1984) (courts of appeals had exclusivejurisdiction over complaint about FAA's final order to implement flightplan without conducting EIS).

11. Although Fairview seems unlikely to incur any hardship withrespect to on-the-ground construction, which has stopped, Fairviewalleges that it will be subject to certain harms from other sources evenwhile construction is halted: (1) excessive noise due to an allegedincrease in jet traffic since January 2002, (2) increased risk of birdstrikes due to the alleged increase in jet traffic; and (3) risk ofenvironmental harm due to the existence of a temporary fuel farm thatallegedly does not meet EPA standards. See Supplemental Declaration ofRonald E. Clary ¶¶ 5-7; Fairview Memorandum in Support of Motion forPreliminary Injunction at 13; Supp. Kalina-Kaminsky Dec. ¶ 25. But withrespect to these allegations, as with Fairview's other NEPA allegations,Fairview has identified neither a reviewable agency action under the APAnor a "major federal action" under NEPA. (Of course, to the extent thatFairview's allegations challenge the same agency activities complained ofin Fairview's Part 16 proceeding, Fairview's recourse was to take anappeal from that proceeding). In any event, the alleged present harmsfrom the alleged increase in jet traffic and the alleged present riskfrom the temporary fuel farm appear to have only a tenuous connection tothe planned future construction at MMA, which is at the heart ofFairview's complaint. Accordingly, these allegations would be moreappropriately addressed through an FAA administrative action than througha NEPA claim focused on anticipated airport expansion activity.

12. Certain other categories of funding that Fairview points to areactually provided by the State of Texas or the City of McKinney, not thefederal government. Ehly Dec. ¶¶ 9-15. McKinney's alleged intention toseek reimbursement for some of these funds does not create a "majorfederal action" at the present time.

13. Based upon her review of web-sites and MMA Board minutes, Ms.Kalina-Kaminsky challenges the statements by McKinney's Program Manager,the manager of the Texas Airport Development Office, and the Director ofPlanning and Programming for Aviation in the Texas Department ofTransportation that no federal funds have been granted to MMA sinceOctober 1999. See Ehly Dec. ¶ 6; Howard Dec. ¶ 6; Nicely Dec. (executedon February 12, 2002) ¶ 9. Specifically, Ms. Kalina-Kaminsky surmisesthat federal funding for "engineering/design" in FY2002 and for taxiwayconstruction in FY2003 has been approved and is presently available. SeeThird Supp. Kalina-Kaminsky Dec. ¶¶ 5-6; Fourth Supp. Kalina-KaminskyDec. ¶¶ 8-9, 11. Ms. Kalina-Kaminsky's assertion, drawn from hearsay, isnot sufficient to create an issue of fact concerning the provision offederal funding, especially in the face of the declarations submitted byofficials with personal knowledge. But even if the Court were to creditMs. Kalina-Kaminsky's statements, the Court would not find jurisdictionover the NEPA claim. First, the alleged use of federal funds forpreliminary planning activities related to the proposed expansion does notconstitute a "major federal action." See Macht, 916 F.2d at 17.

Second, although Fairview acknowledges that under FAA regulationstaxiway funding does not ordinarily require an EIS, Fairview argues thatan environmental evaluation is required in this case because the taxiwaymay be converted into a runway and because taxiway development isintertwined with the anticipated construction of hangars. As an initialmatter, as described by Fairview, the possibility of taxiway-runwayconversion is too speculative to sustain an argument that the FAA hasviolated NEPA by failing to address the environmental impact of such aproject. In any event, the FAA acknowledges that it must address theenvironmental effects of any new construction prior to its commencement,and the FAA is in the process of reviewing several applicationsconcerning, inter alia, building of hangars and taxiways. Thus, despiteFairview's charge that the FAA has been delinquent in complying withNEPA, it would be imprudent for the Court to rule on whether anticipatedconstruction requires an EIS — and which connected actions shouldfall within the scope of that EIS — while the FAA is in the processof "crystallizing its policy" based on its review of the pendingapplications. See Wyoming Outdoor Council, 165 F.3d at 49 (the primaryfocus of the "prudential aspect of the ripeness doctrine is to balance`the petitioner's interest in prompt consideration of allegedly unlawfulagency action against the agency's interest in crystallizing its policybefore that policy is subjected to judicial review and the court'sinterests in avoiding unnecessary adjudication and in deciding issues ina concrete setting'" (quoting Eagle-Picher Indus. v. EPA, 759 F.2d 905,915 (D.C.Cir. 1985)).

14. Although the Court's analysis has focused on the prudential aspectof ripeness, the state of factual development, including the apparentabsence of a "major federal action," suggests that Fairview has notsuffered an injury under NEPA sufficient to satisfy constitutionalstanding and ripeness requirements. See Wyoming Outdoor Council, 165F.3d at 48.

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