Home » Case Summaries » 1998 » Morongo Band of Mission Indians v. Federal Aviation Administration


Morongo Band of Mission Indians v. Federal Aviation Administration



In early 1997, the Federal Aviation Administration (FAA) began to design the Los Angeles International Airport (LAX) East Arrival Enhancement Project (AEP). The purpose of the project is to reduce air traffic into LAX from the east and to increase the overall safety of arrivals. The AEP would require shifting flight patterns so as to cross the Morongo Indian Reservation, located about ninety miles east of Los Angeles.

FAA solicited comments from the Morongo Band of Mission Indians (the Band) under the National Environmental Policy Act (NEPA).[1] The Band objected to the new AEP, claiming that increased flights over the Reservation would interfere with their cultural and spiritual ceremonies. The Band proposed an alternative route that would avoid the Reservation, and FAA included it in the final environmental assessment (EA) for the AEP. After public comment on the final EA, FAA nevertheless chose an alternative that would reroute LAX air traffic over the Reservation. FAA issued a finding of no significant impact (FONSI) on October 24, 1997 and a record of decision (ROD) on January 30, 1998, and implemented the decision on March 10, 1998.

The Band petitioned for review of the agency’s decision, raising several issues before the Ninth Circuit. First, the Band argued that the United States and its agencies bore a trust responsibility toward the Band, and that FAA had violated that trust when it implemented the AEP. The court conceded that the United States has a trust responsibility towards the Band, but that “unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.”[2]

The court next turned to the Band’s NEPA claims, which included whether the FAA had 1) evaluated a reasonable range of alternatives, 2) evaluated noise impacts from the AEP, 3) improperly segmented the AEP from the general LAX expansion project, and 4) failed to address the cumulative impacts of the AEP. The court first noted that FAA had considered two alternatives that avoided the Reservation, but that these alternatives did not meet the purpose and need of the AEP, which was to create a new airspace sector in order to increase safety at LAX. Because NEPA only requires agencies to consider reasonable alternatives that meet the purposes and needs of a project, FAA’s decision to reject the alternatives that did not encroach upon the Reservation was reasonable. Furthermore, the court rejected the testimony of the Band’s expert witness (who stated that the purpose and need of the project could be met without increasing flights over the Reservation), noting that agencies have the discretion on their own experts.

Second, the court rejected the Band’s contention that FAA had failed to adequately analyze the impacts from increased noise potentially caused by implementation of the AEP. The Band proffered several expert witnesses who testified that the agency had not properly calculated the increased noise from the AEP, but the court refused to referee a battle of the experts between the agency and the Band. Instead, the court held that it was not arbitrary and capricious for FAA to use its own methods in calculating noise over the Reservation.

Third, the court turned to whether FAA had improperly segmented the AEP from the LAX expansion project. The court turned to whether FAA had failed to analyze the cumulative impacts of the two projects by improperly segmenting the AEP from the LAX expansion project. The court analyzed the NEPA regulation regarding connected actions[3] as well as existing Ninth Circuit case law on connected actions[4] and found that the AEP could exist independently from the LAX expansion project. While the expansion project dealt with increasing the size of the airport, the AEP “was [intended] to deal with existing problems of delay and inefficiency in the arrival system.”[5] Because the two projects were not dependent on each other for their completion, FAA had been reasonable in discussing the impacts from each project in separate NEPA documents.

Next, the Ninth Circuit rejected the Band’s claim that FAA had failed to address the cumulative impacts from the expansion and AEP projects. Although the two projects were similar because they both concerned the arrival system at LAX, FAA had adequately considered the impacts from both projects in several documents including the AEP Environmental assessment, the LAX Master Plan study, and terminal radar approach control facility projections. As a result, FAA had satisfied its NEPA duty to consider the cumulative impacts from both projects.

The court then turned to claims raised by the Band that FAA had violated the National Historic Preservation Act (NHPA)[6] when it failed 1) to prepare an environmental impact statement (EIS) that considered whether the AEP would adversely affect “any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register;”[7] and 2) to obtain the Band’s permission to implement the AEP. The court noted that all of the visual and acoustic studies showed that the impacts to the Reservation and its eligibility for placement on the National Register would be minimal; as a result, no EIS was required. Furthermore, the court explained that although the NHPA required FAA to follow up on any information received from the Band regarding historical or cultural property within the project area, the agency’s failure in this case to do so was not fatal, because the agency had already determined that there would be no effect to the Reservation from the AEP. The court also rejected the Band’s contention that the NHPA required the FAA to obtain the consent of the Band to implement the AEP, because “[c]onsent is required . . . only if the action is found to have an effect on the land and, here, a finding of no effect was made.”[8]

Finally, the court addressed the Band’s claim that FAA had violated Section 4(f) of the Transportation Act.[9] Section 4(f) prohibits the “use” of historic sites unless there is no prudent and feasible alternative to the project and the project includes minimization methods to reduce the amount of harm to the site.[10] Noting that Section 4(f) only applies if there is in fact a “use” of the site, the court accepted the government’s argument that an FAA order properly excluded the type of activity in the present case from categorization as a “use” of land. Because FAA had previously concluded that the AEP “‘would not affect the normal activity or aesthetic value of the land,'”[11] there was no use of the Reservation, and FAA had not violated the Transportation Act.

[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[2] Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 574 (9th Cir. 1998).

[3] 40 C.F.R. § 1508.25(a)(1) (1998).

[4] The court principally addressed Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (timber sale and access road are connected actions), and Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988) (same).

[5] 161 F.3d at 574.

[6] National Historic Preservation Act of 1966, 16 U.S.C. §§ 470-470mm (1994 & Supp. III 1997).

[7] Id. § 470(f) (1994).

[8] 161 F.3d at 582.

[9] Department of Transportation Act of 1966, Pub. L. No. 89-670, 80 Stat. 931 (codified as amended in scattered sections of 49 U.S.C. (1994)).

[10] 49 U.S.C. § 303(c) (1994).

[11] 161 F.3d at 582 (quoting FAA’s final EA).

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