Nat Resrc Def Cncl v. FAA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 22, 2002 Decided June 14, 2002

No. 01-1225

Natural Resources Defense Council and
Wilderness Society,
Petitioners

v.

Federal Aviation Administration and
Janet F. Garvey, Administrator,
Respondents

Gary J. Kauffman,
Intervenor

On Petition for Review of an Order of the
Federal Aviation Administration

Robert A. Bourque argued the cause for petitioners. With
him on the briefs were Johanna H. Wald, Leslie Jones, Paul
C. Gluckow and Sharon Buccino.

 Susan Pacholski, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief was
Ronald Spritzer, Attorney.

William P. Horn was on the brief for intervenor.

Opinion for the Court filed by Circuit Judge Rogers.

Before: Ginsburg, Chief Judge, Henderson and Rogers,
Circuit Judges.

Rogers, Circuit Judge: The Natural Resources Defense
Council, Inc. and The Wilderness Society (collectively
"NRDC") petition for review of the Federal Aviation Admin-
istration's determination that the National Parks Air Tour
Management Act of 2000, 49 U.S.C. s 40128, does not bar
Vortex Aviation Inc.'s ("Vortex") proposed sightseeing tours
out of the Jackson Hole Airport. Because we conclude that
the issues presented in the petition are unripe for judicial
review, we dismiss the petition for lack of jurisdiction.

I.

In April 2000, Congress enacted the National Parks Air
Tour Management Act ("the Act"), which provides for the
regulation of commercial air tour operations over national
parks and tribal lands within or abutting national parks.
Pub. L. No. 106-181, 114 Stat. 185 (2000). The Act requires
the Administrator of the Federal Aviation Administration
("FAA"), in conjunction with the Director of the National
Park Service, to "establish an air tour management plan for
any national park or tribal land" in order to "develop ac-
ceptable and effective measures to mitigate or prevent the
significant adverse impacts, if any, of commercial air tour
operations upon the natural and cultural resources, visitor
experiences, and tribal lands." 49 U.S.C. s 40128(b)(1).
Before conducting commercial air tour operations over na-
tional parks or tribal lands, the Act requires each commer-
cial air tour operator to apply to the FAA for authority to
conduct such operations. Id. s 40128(a)(2)(A).

The Act defines "commercial air tour operation" as:

 [A]ny flight, conducted for compensation or hire in a
powered aircraft where a purpose of the flight is sight-
seeing over a national park, within 1/2 mile outside the
boundary of any national park, or over tribal lands,
during which the aircraft flies--

(i) below a minimum altitude ... above ground level
(except solely for purposes of takeoff or landing, or
necessary for safe operation of an aircraft ... ); or

(ii) less than 1 mile laterally from any geographic
feature within the park (unless more than 1/2 mile
outside the boundary).

Id. s 40128(f)(4)(A). In determining whether a particular
proposed flight is a commercial air tour operation, the FAA
"may consider" the following factors: "(i) whether there was
a holding out to the public of willingness to conduct a
sightseeing flight for compensation or hire; (ii) whether a
narrative that referred to areas or points of interest on the
surface below the route of the flight was provided by the
person offering the flight; (iii) the area of operation; (iv) the
frequency of flights conducted by the person offering the
flight; (v) the route of flight; (vi) the inclusion of sightseeing
flights as part of any travel arrangement package offered by
the person offering the flight; (vii) whether the flight would
have been canceled based on poor visibility of the surface
below the route of the flight; and (viii) any other factors that
the Administrator and the Director consider appropriate."
Id. s 40128(f)(4)(B).

II.

The Jackson Hole Airport, which is managed and operated
by the Jackson Hole Airport Board pursuant to a Use Agree-
ment with the United States, is located in the State of
Wyoming, just inside the southern border of Grand Teton
National Park. Vortex, which provides nonscheduled com-
mercial aviation services pursuant to FAA certification under
Parts 119, 133, 135, and 137 of the FAA's regulations, 14
C.F.R. pts. 119, 133, 135, 137, sought permission from the
Board to operate charter flights, including scenic tours, out of

the Airport. The Board, however, expressed concerns about
the Act's applicability to sightseeing flights out of the Airport
and the absence of an air tour management plan for the Park
as required by the Act. Vortex, in turn, sought clarification
from the FAA regarding the applicability of the Act to its
proposed sightseeing tours out of the Airport. The NRDC
challenges the FAA's letter responses to Vortex's inquiries.

A.

In August 1999 and again in May 2000, Vortex applied to
the Board for permission to operate charter services, includ-
ing scenic air tours, out of the Airport. On May 17, 2000, the
Board approved Vortex's proposed operations, but on June
12, 2000, concerned that Vortex's scenic air tour operations
would violate the Act's restrictions on sightseeing tours over
national parks, the Board rescinded its approval subject to
Vortex's full compliance with the Act. Although Vortex
continued discussions with the Board, claiming that Vortex's
proposed flights were in compliance with the Act and that, in
any event, the Board lacked the authority to prevent Vortex's
operations, on July 17, 2000, the Board issued a moratorium
on the approval of all commercial scenic air tour operations
out of the Airport pending development of an air tour man-
agement plan or "other conclusive determination" that the
proposed flights would not violate the Act.

On June 22, 2000, Vortex wrote to the FAA seeking
clarification as to the applicability of the Act to Vortex's
proposed air tour operations. In the letter, Vortex described
its proposed flights, stating that its scenic air tour operations
will not be conducted over the Park and emphasizing that it
has "NEVER proposed flights over any portion of the [P]ark.
[Except those portions that are necessary to fly over as a
result to approach for a landing or for departure from take-
off.]" (brackets in original). Vortex asked the FAA to re-
spond to four questions:

[1] Does the Act apply to the proposed scenic flights
that Vortex intends on performing at the Jackson

 Hole Airport for flights conducted outside the
Park?

[2] Does the language in [s 40128(f)(4)(A)(i), the min-
imum altitude provision and its takeoff and land-
ing exception,] ensure that those portions of
flights that cross sections of the Park for normal
approach to landing and departure from takeoff
are excluded from being considered a scenic air
tour over the Park when the final tour destination
is, in fact, outside the Park?

[3] [Does the Use Agreement] constitute the current
conditions of scenic air tour overflights for the
Park until an Air Tour Management Plan is en-
acted and approved by the FAA in the future for
Grand Teton Park?

[4] If the above is the affirmative, does the Park have
the right to unilaterally change overflight rules in
the absence of FAA approval under the terms and
conditions of the Act? Do the current overflight
rules of the Park 'stay in place' until the whole
process as defined in the Act take[s] place to
enact a change from the existing rules contained
in [the Use Agreement].

On August 13, 2000, Vortex wrote the FAA again. Informing
the FAA that the Board had not lifted the moratorium,
Vortex asked for clarification of the Board's authority to
enforce the Act, and, stating that the Board was using the
geographic feature provision of the Act, 49 U.S.C.
s 40128(f)(4)(A)(ii), to preclude Vortex's flights, Vortex also
sought the FAA's views on the meaning of "geographic
feature" as used in the Act and the effect under the Act of
flying within one mile of a geographic feature during takeoff
and landing. On August 31, 2000 and October 17, 2000, the
Board also wrote the FAA seeking its views on the meaning
of "geographic feature" and "laterally" as used in the Act, and
inquiring as to the Board's authority under the Act to control
a flight's route.

 The FAA responded to these questions in three letters. In
the first letter, dated August 9, 2000, the FAA responded,
through Donald P. Byrne, the Assistant Chief Counsel for the
Regulations Division, to Vortex's first two questions, and
concluded that the proposed flights would not violate the Act.
In the second letter, dated September 7, 2000, the FAA,
through Nancy D. LoBue, Assistant Chief Counsel for Air-
ports and Environmental Law in the Office of the Chief
Counsel, addressed Vortex's third and fourth questions con-
cerning the Board's authority to impose restrictions on sight-
seeing flights out of the Airport, and declined to offer a
definitive opinion. However, in the third letter, dated Octo-
ber 27, 2000, the FAA, through Mr. Byrne, offered an adviso-
ry opinion on the remaining questions presented by Vortex
and the Board in their letters of August 2002.

B.

The first letter. Regarding Vortex's first question, the
FAA, through Mr. Byrne, stated that based on the informa-
tion provided by Vortex, Vortex's proposed scenic flights
would not violate the Act. He explained:

The term "commercial air tour operation," is defined, in
part, as "any flight, conducted for compensation or hire
in a powered aircraft where a purpose of the flight is
sightseeing over a national park, within 1/2 mile outside
the boundary of any national park, or over tribal
lands...." [49 U.S.C. s 40128(f)(4)(A).] According to
the information [Vortex] provided ... , Vortex Aviation's
sightseeing operations are not conducted over Grand
Teton National Park or within 1/2 mile of the Park's
boundary[;] it is only entering and exiting the Park as
necessary for takeoff and landing and following the take-
off and landing routes as prescribed by the Airport
Board.

Thus, Mr. Byrne concluded, "it is clear that the National
Park[s] Air Tour Management Act does not prohibit or limit
Vortex Aviation's operations as long as Vortex Aviation con-
ducts its sightseeing flights outside of Grand Teton National

Park and more than 1/2 mile outside the Park boundary."
Regarding Vortex's second question, Mr. Byrne stated that
Vortex would not violate the Act by descending below the
minimum altitude set forth in the Act as long as it was solely
for the purpose of takeoff and landing.

The second letter. In a second letter, the FAA, through
Ms. LoBue, began by noting "serious concerns" about the
Board's moratorium on commercial sightseeing flights in view
of the fact that the Board is primarily responsible for noise
abatement and because the Airport's federal financial assis-
tance is contingent upon the Board providing access to air-
port users "on fair and reasonable terms, without unjust
discrimination." However, regarding Vortex's third question,
she concluded that it was unnecessary for the FAA to issue
an advisory opinion concerning the Board's authority to regu-
late sightseeing overflights of the Park under paragraph (h)
of the Use Agreement, which governs commercial scenic and
charter flights over noise sensitive areas of the Park. Vortex,
she stated, "is not proposing to initiate flights over [the Park]
(other than those necessary to land and takeoff)." She
explained further that "[i]f Vortex proposes to initiate such
flights before the [Act] is implemented by regulation, then
FAA would discuss the genesis and proper interpretation of
paragraph (h) with the parties to the Use Agreement before
issuing any definitive opinion." Similarly, regarding Vortex's
fourth question, Ms. LoBue declined to reach the legality of
paragraph (h) of the Use Agreement because "Vortex is not
currently conducting overflights of the Park except for land-
ings and takeoffs."

The third letter. On October 27, 2000, the FAA, through
Mr. Byrne, responded to the remaining questions that Vortex
and the Board posed. Mr. Byrne stated that the "Board has
no authority under the Act to prohibit scenic operations from
taking off or landing at Jackson Hole Airport" or to otherwise
enforce the Act by establishing flight routes. He offered an
interpretation of the geographic feature provision of the Act,
providing hypothetical examples of its applicability.

 III.

On May 23, 2001, the NRDC petitioned for review of the
FAA's opinion, as set forth in the three letters of August 9,
September 7, and October 27, 2000, that the Act did not bar
Vortex's proposed flights. The NRDC contends that, con-
trary to the Act's express and unambiguous terms, the FAA
misinterpreted the Act (1) by erroneously concluding that a
flight is not a "commercial air tour operation" unless its only
purpose is sightseeing despite the unambiguous statutory
language that requires only that "a purpose of the flight [be]
sightseeing," 49 U.S.C. s 40128(f)(4)(A) (emphasis added),
and (2) by improperly interpreting the takeoff and landing
exception of the minimum altitude provision, id.
s 40128(f)(4)(A)(i), as an exception to the entire commercial
air tour operation definition, including its separate geographic
feature subsection, id. s 40128(f)(4)(A)(ii). The NRDC also
contends that in concluding that Vortex's proposed flights
were not covered by the Act, the FAA failed to analyze
Vortex's "self-serving assertion that the purpose of its flights
while over the Park was only to takeoff and land from the
Airport, despite clear evidence in the record ... that Vortex's
flights also had an undeniable sightseeing purpose," as indi-
cated by Vortex's proposal to take a route that would prolong
the flight time over the Park and thus provide "a spectacular
view of the Park's signature geographic feature," the Tetons.
Petitioners' Br. at 18.

The FAA disputes the NRDC's contentions on the merits,
pointing to "the unique circumstances of this case, where a
major airport is located within a national park," Respondents'
Br. at 13, but contends as a threshold matter that the court
lacks jurisdiction because (1) the petition is untimely under 49
U.S.C. s 46110(a); (2) the three letters do not constitute final
agency action under 49 U.S.C. s 46110; (3) the issues raised
in the petition are unripe; and (4) the petitioners lack stand-
ing. Because we conclude that the issues presented in the
petition are not ripe for review, we do not address the merits
of NRDC's petition or the FAA's additional jurisdictional
claims.

 The basic rationale underlying the ripeness doctrine is
preventing courts from entangling themselves in premature
adjudication involving abstract disagreements over adminis-
trative policies. Abbott Labs. v. Gardner, 387 U.S. 136, 148
(1967). It is well established that the court's ripeness inquiry
is twofold, requiring us "to evaluate both the fitness of the
issues for judicial decision and the hardship to the parties of
withholding court consideration." Id. at 149; see also Wyo.
Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C.
Cir. 1999).

Under the fitness for review prong, the court considers not
only whether the claims present purely legal questions that
are presumptively suitable for judicial review, but also wheth-
er the courts and agency would benefit from postponing
review until the questions at issue have taken on a more
definite form. Cronin v. FAA, 73 F.3d 1126, 1131 (D.C. Cir.
1996). Thus, "the 'court's interests in avoiding unnecessary
adjudication and in deciding issues in a concrete setting'
militate in favor of postponing review if, for example, the
court finds 'that resolution of the dispute is likely to prove
unnecessary,' or 'that the court's deliberations might benefit
from letting the question arise in some more concrete ...
form.' " Id. (quoting Eagle-Picher Indus., Inc. v. EPA, 759
F.2d 905, 915 (D.C. Cir. 1985), and State Farm Mut. Auto.
Ins. Co. v. Dole, 802 F.2d 474, 479 (D.C. Cir. 1986)) (alteration
in original) (citations omitted). These factors weigh against
immediate review.

First, the interpretation of the Act that the NRDC chal-
lenges was set forth in three letters that on their face
demonstrate the tentativeness of the legal determination re-
garding Vortex's operations. This is evident from the fact
that the FAA, in determining that the Act did not bar the
proposed flights, relied solely on Vortex's descriptions of the
flights that it was proposing to fly out of the Airport. In the
first letter to Vortex, Mr. Byrne stated:

According to the information you provided ..., Vortex
Aviation's sightseeing operations are not conducted over
Grand Teton National Park or within 1/2 mile of the Park's

 boundary, it is only entering and exiting the Park as
necessary for takeoff and landing....

....

Given the facts as stated above, it is clear that the
National Park[s] Air Tour Management Act does not
prohibit or limit Vortex Aviation's operations as long as
Vortex Aviation conducts its sightseeing flights outside of
Grand Teton National Park and more than 1/2 mile outside
the Park boundary. (emphasis added)

In the second letter, Ms. LoBue reaffirmed the tentative
nature of the first letter, explaining that although it was
unnecessary for the FAA "to issue an advisory opinion con-
cerning the authority of the Board to regulate commercial
sightseeing overflights" because Vortex had not proposed
sightseeing flights over the Park, the FAA would reconsider
this decision if, in fact, Vortex "proposes to initiate such
flights." Finally, in the third letter, Mr. Byrne again empha-
sized the hypothetical and advisory nature of the opinion
stated in the letters, noting that "[t]he FAA already has
issued an interpretation stating that Vortex's proposed sight-
seeing operations are not covered by the Act if they are
conducted outside the boundaries of Grand Teton National
Park, regardless of the fact that Vortex lands and departs
from Jackson Hole Airport." (emphasis added).

The three letters thus make clear that the FAA's determi-
nation of the applicability of the Act flowed solely from
Vortex's description of its proposed flights. In other words,
the FAA's interpretation of the Act was not based upon a
factual determination, consistent with the factors that the
FAA may consider under the Act in determining whether a
flight is a commercial air tour operation, see 49 U.S.C.
s 40128(f)(4)(B), that Vortex's actual operations would be
immune from regulation under the Act. The FAA did not
purport to make any findings in the letters regarding whether
Vortex's actual flights had as a purpose sightseeing over the
Park. Had the FAA done so, presumably it would have
addressed Vortex's "true" purpose and intent in light of
Vortex's choice of flight path and flight times and Vortex's
description of its tours on its website. As it was, however,

the FAA made neither findings regarding, nor mention of,
Vortex's proposed departure routes, Vortex's flight times, or
Vortex's description of its tours on its website, all of which
are relevant factors in making a determination as to whether,
in fact, a flight is a commercial air tour operation, see id. To
the extent the FAA rendered an interpretation of the Act
based on Vortex's factual assertions, in essence, the FAA's
views were based on a hypothetical factual scenario and hence
are not appropriate for review. Cf. Aerosource, Inc. v. Slater,
142 F.3d 572, 579-80 (3d Cir. 1998). Indeed, the interpreta-
tion of the Act in the three letters, while seemingly a final
position as to the applicability of the Act to the hypothetical
flights described by Vortex, would be consistent with a future
determination by the FAA that Vortex's flights violate the
Act if, for example, the NRDC's assertions are borne out by
the evidence.

Second, the issues raised in the NRDC's petition are not
strictly legal in nature. Determining the applicability of the
Act to Vortex's actual flights requires the application of law to
facts based on evidence that was not before the FAA and is
not before the court. Further, the challenges to the FAA's
interpretation of the Act, which present legal issues, are
intertwined with the FAA's assessment of "the facts." For
example, in contending that the FAA wrongly read the Act to
be triggered only when "the only purpose" of a flight is
sightseeing over a Park rather than when "a purpose" of a
flight is sightseeing (as the NRDC contends the Act re-
quires), the NRDC also maintains that the FAA ignored the
factual possibility that Vortex's flights could have a dual
purpose that includes sightseeing over the Park. To resolve
the validity of the FAA's statutory construction, the court
would have to examine the record evidence to determine
whether the FAA's factual findings were supported and
whether the FAA's assessment of the purpose or purposes of
Vortex's flights was appropriate. Again, however, the FAA
did not purport to make findings as to whether Vortex's
actual flights had as a purpose sightseeing over the Park but
took as true Vortex's assertion that it was not conducting
sightseeing tours over the Park. Even the seemingly legal

issues presented by the NRDC turn then on evidentiary facts
that are not developed in the record.

As the FAA observes, the NRDC, to advance its challenges
to the FAA's statutory interpretation, "indulge[s] in specula-
tion regarding the probabl[e] routes of Vortex's flights, their
likely duration and the quality of the scenery that might be
visible from the windows of Vortex's helicopters," and relies
on documents that were not before the FAA, including a map
of Vortex's proposed flight path and information placed on
Vortex's website a year after the FAA's letters were issued.
Respondents' Br. at 25. Further, the FAA states in its brief
that because Vortex began operating out of the Airport in the
summer of 2001, there is now actual evidence of Vortex's
operations out of the Airport. Under the circumstances, this
is a classic case where "further factual development would
'significantly advance our ability to deal with the legal issues
presented' and would 'aid us in their resolution.' " Ohio
Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998)
(quoting Duke Power Co. v. Carolina Envtl. Study Group,
Inc., 438 U.S. 59, 82 (1978)).

In light of the tentative nature of the FAA's interpretation
of the applicability of the Act to Vortex's flights and the lack
of a factual grounding for the NRDC's challenges, the views
expressed in the FAA's three letters are akin to the informal
opinion letters at issue in New York Stock Exchange, Inc. v.
Bloom, 562 F.2d 736 (D.C. Cir. 1977), that the court conclud-
ed were unripe for review. Id. at 741-43. In Bloom, the
court explained that the issues were unfit for review, in part,
because the informal form of the Comptroller's action "re-
flected the tentative nature of his interpretative conclusion,"
in which the Comptroller "expressly reserved the possibility
that his opinion, which extended only to the permissibility of
the particular service proposed ..., might change if and when
he was presented with concrete evidence" as to the applicabil-
ity of the Act. Id. at 741. Moreover, although the issues in
Bloom were legal in the sense that they involved statutory
construction, the court explained that they were not fit for
review because a substantial part of the challenges to the
Comptroller's opinion was the parties' disagreement with the

Comptroller's factual assessment. Id. Both of these ele-
ments are present here. Just as in Bloom, the issues are not
fit for judicial review because, in the end, they lack sufficient
concreteness and they would require the court to conduct a
purely hypothetical inquiry. Cf. Nat'l Automatic Laundry &
Cleaning Council v. Shultz, 443 F.2d 689, 699 (D.C. Cir.
1971).

Turning to the hardship prong, because the issues would
benefit from postponing review, the NRDC must demonstrate
immediate, direct, and significant hardship to warrant imme-
diate review, Cronin, 73 F.3d at 1133, and it has failed to do
so. Unlike agency regulations that can force compliance
through a fear of immediate sanction, see Abbott Labs., 387
U.S. at 152-53, the NRDC is neither regulated by the FAA
nor forced to change its conduct in order to avoid future
adverse consequences as a result of the letters. Further, any
harm incurred by the NRDC as a result of Vortex's actual
conducting of sightseeing flights is not a direct consequence
of the three letters at issue as they do not authorize Vortex's
current flights out of the Airport. See Ohio Forestry Ass'n,
523 U.S. at 733. Finally, the NRDC has an alternate remedy.
In the event Vortex's actual flights violate the Act in the
opinion of the NRDC, the NRDC can file a complaint with
the FAA, pursuant to 49 U.S.C. s 46101(a), whereupon the
FAA would be required to "investigate the complaint if a
reasonable ground appears to the ... Administrator for the
investigation." 49 U.S.C. s 46101(a). These factors all weigh
against the need for immediate review. Cf. Bloom, 562 F.2d
at 743.

Accordingly, because the issues presented by the petition
are not presently fit for review and the NRDC would suffer
no significant hardship from delaying review, we dismiss the
petition as unripe and do not address either the remaining
jurisdictional issues, Fourth Branch Assocs. (Mechanicville)
v. FERC, 253 F.3d 741, 745 (D.C. Cir. 2001), or the merits, see
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95,
101-02 (1998).