Keeping Tabs on the Ninth Circuit
October 07, 2022 - This Week at the Ninth

This Week at the Ninth: Flight Paths and Time Bars

charter airplane

This week, the Court examines the jurisdictional limits on challenges to agency action in evaluating the FAA’s flight paths for Burbank and Van Nuys airports.

The Court holds it lacks jurisdiction to consider challenges to FAA flight paths set years ago, even if the FAA had reissued orders maintaining those plans. 

The panel: Judges Miller, Collins, and Korman (E.D.N.Y.), with Judge Miller writing the opinion.

Key highlight:   “Because Save Our Skies timely challenged HARYS FOUR and SLAPP TWO, we have jurisdiction to affirm or modify ‘any part of’ those orders—but only those orders. 49 U.S.C. § 46110(c). We cannot review FAA actions taken in earlier orders simply because Save Our Skies has challenged later orders bearing similar names.”

Background: In 2017, the FAA adopted revised procedures to govern takeoffs from Burbank and Van Nuys airports in Los Angeles. The “SLAPP” procedure for Burbank contemplates an initial southern flight path. Although the FAA contemplated changing that flight path, in a revised “SLAPP TWO” procedure issued in 2020, it made only minor word changes. The “HARYS ONE” departure procedure for Van Nuys contemplated that airplanes would have to turn immediately after takeoff. That caused violations of the airport’s noise abatement requirements, so in 2018 the FAA promulgated “HARYS 2,” which designated “waypoint” a mile south of the airport.  The FAA subsequently made minor word changes in updated “HARYS 3” and “HARYS 4” plans, which left the flight path unchanged. 

In November 2020, Save Our Skies, an association of nearby residents, filed a petition for review of “SLAPP TWO” and “HARYS 4,” arguing that the FAA had violated various statutory provisions in failing to fully assess the noise associated with these flight paths. 

Result:  The Ninth Circuit denied the petition in part and dismissed it in part. As it explained, Congress had imposed strict jurisdictional limits on any petition for review challenging FAA orders, requiring they be filed within 60 days.  Save Our Skies’ petition was timely with respect to the “HARYS 4” and “SLAPP TWO” orders. But, the Court explained, Save Our Skies had no viable challenge to either of those orders. While the petitioner claimed that the FAA had violated its duty to assess the environmental impacts of its action under the National Environmental Policy Act, the FAA’s regulations properly established a categorical exception covering the “[p]ublication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks.” That, the Court held, “describes HARYS FOUR’s and SLAPP TWO’s contents exactly.” Petitioner’s other statutory challenges failed for the same reasons: none of the FAA’s minor word changes could have violated federal law.

Petitioner’s real gripe, the Court reasoned, was with the prior HARYS and SLAPP orders that had adopted the existing flight paths. But the Court held that any challenge to those orders was barred, as “[o]ur jurisdiction extends only to the orders directly and timely challenged by a petitioner.” Nor could the petitioner invoke the “reasonable grounds” exception to Congress’s 60-day limit. While Save Our Skies claimed that the FAA had “’acted in a manner that would confound the public’” by not explaining the departure procedures, the Court observed that the agency had “published documents and maps detailing the departure procedures for each order challenged here.” And, the Court held, a recent D.C. Circuit decision accepting a similar argument was distinguishable because there the FAA had made statements suggesting its actions were not yet final. Here, the FAA made clear that its orders were final; that it considered certain recommendations for changing those orders did not suggest it would fix any supposed noise problems without court involvement. Likewise petitioner’s argument that the “continuous violation” doctrine was applicable failed because the statute required filing a petition within 60 days of the order challenged, not when a cause of action accrued.