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TOWN OF FAIRVIEW v. U.S. DEPT. OF TRANSP.

April 15, 2002

TOWN OF FAIRVIEW, TEXAS, PLAINTIFF,
V.
UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: John D. Bates, United States District Judge.

  MEMORANDUM OPINION
The Town of Fairview, Texas ("Fairview" or "plaintiff") brings this case against the Department of Transportation, Federal Aviation Administration ("FAA") to enjoin further development of the McKinney Municipal Airport ("MMA") pending an environmental review. Presently before the Court are Fairview's motion for a preliminary injunction and the FAA's motion to dismiss. For the reasons stated below, Fairview's motion for a preliminary injunction is denied and the FAA's motion to dismiss is granted.

FACTUAL AND PROCEDURAL BACKGROUND

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

In February 1999, Fairview filed an administrative claim with the FAA in accordance with 14 C.F.R. § 16 alleging that McKinney was in violation of certain grant assurances under 49 U.S.C. § 47107.*fn1 Fairview claimed that MMA poses a threat to the residents of Fairview because a nearby landfill and other environmental factors attract birds that traverse the airport flight pattern south of MMA. Town of Fairview v. City of McKinney, 2001 WL 88072, at *1 (F.A.A. January 23, 2001); Town of 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 been considering Fairview's interests, that McKinney had violated air and water quality standards, and that McKinney had not maintained an Airport Layout Plan ("ALP")*fn2 that accurately depicted the observed increase in flight patterns and corporate jet aircraft service. Town of Fairview, 2001 WL 88072, at *14-16. Fairview's claims were framed as violations of grant assurances numbers 5 (preserving rights and powers), 7 (consideration of local interest), 10 (compliance with air and water quality standards), 19(a) (operation and maintenance), 20 (mitigation of bird hazard), and 29 (maintaining an ALP). In addition, Fairview raised various claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., including a challenge to a 1988 environmental assessment and an allegation that the FAA was required to conduct an environmental review of certain planned construction projects. Id. at *17-18.

In the FAA's Final Decision and Order issued in January 2001, the FAA Associate Administrator affirmed that McKinney had violated grant assurances numbers 19(a) and 20, and upheld an order requiring McKinney to take certain steps to mitigate the bird hazard and close the landfill. Id. at *20-22. The Associate Administrator also concluded that NEPA claims against FAA could not be raised in a Part 16 administrative proceeding. Id. at *17-20. Fairview petitioned the Court of Appeals for the District of Columbia Circuit for review of the FAA's final 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 presents 59 pages of highly detailed allegations. At heart, however, Fairview's action and its motion for a preliminary injunction are directed at a planned expansion at MMA. Fairview asserts that for the first several years of MMA's existence, Fairview understood that MMA was focused on providing commercial airspace for recreational private pilots, and was in effect a "Saturday Pilot" general aviation airport. In 1999, however, Fairview became aware that McKinney was planning a major expansion of MMA, including the addition of a runway and increased operational services, for the purpose of turning MMA into an economic driver for McKinney. This planned expansion, Fairview alleges, has been undertaken with the FAA's permission, and has been financed, in part, with federal funds provided by the FAA and administered by the Texas Department of Transportation. Fairview asserts that it also expects McKinney to seek reimbursement from the FAA for funds that McKinney has obtained from private and municipal sources.
Fairview supports its allegations about the anticipated airport expansion with several declarations from Cynthia Kalina-Kaminsky, an engineering consultant who has been researching developments at MMA by, among other things, following the activities of McKinney municipal committees, collecting press reports, and analyzing MMA's Master Plan and ALP. See Declaration, Supplemental Declaration, Second Supplemental Declaration, Third Supplemental Declaration, and Fourth Supplemental Declaration of Cynthia Kalina-Kaminsky. According to Ms. Kalina-Kaminsky, McKinney has commenced planning, land purchases, and financing activities for an expansion of MMA "that will increase throughput of planes, allow for an increase in plane size to accommodate cargo jets, and change the nature of the airport from a small, private recreational general aviation airport to an airport with strong cargo operations." Supp. Kalina-Kaminsky Dec. ¶¶ 6-7, 9, and 52. Based on her research, Ms. Kalina-Kaminsky anticipates the building of at least one additional runway, the development of a thoroughfare for trucking traffic, an expansion of through-the-fence operations,*fn3 the construction of a new taxiway, the relocation of fuel farms,*fn4 and the construction of a new control tower. Id. ¶¶ 7, 9-10, 18-20, 23-24, 25-28, and 30. Ms. Kalina-Kaminsky opines that the various construction activities planned at MMA are not consistent with its existing Master Plan and ALP. Id. ¶¶ 8, 19, 26, 29-30, 33, and 42.
Fairview alleges that the expected expansion of MMA, as described by Ms. Kalina-Kaminsky and as set forth in Fairview's Complaint, will have a variety of detrimental effects. According to Fairview, air and water quality, cultural resources, and flora and fauna in surrounding wildlife areas will all be adversely affected by the expansion. In addition, Fairview suggests, the increase in jet traffic that will inevitably accompany MMA's expansion will create noise problems and aggravate the bird hazard. Indeed, Fairview submits that it has already observed an increase in jet traffic since January 2002. Fairview also points to the opening of a customs office at MMA in October 2001,*fn5 and argues that increased introduction of cargo from foreign locations poses greater import risks.
Beyond its allegations focused on the planned airport expansion, Fairview complains about certain activities at MMA that do not appear to be directly related to the expansion. For example, Fairview alleges that MMA poses a security threat because there are no pilot or passenger security checks at MMA, airport personnel are not required to wear identification, and the gates of the airport remain open and unattended throughout the day. In addition, Fairview complains that the FAA's response to the long-standing bird hazard continues to be inadequate and that the FAA has not been enforcing MMA's compliance with a non-standard flight pattern. Fairview also refers to various alleged violations committed by the FAA in the past, including its approval of construction projects despite MMA's alleged failure to comply with FAA environmental orders.
Fairview frames its factual allegations into five separate counts. In its First Count, Fairview alleges that under NEPA the FAA must complete an Environmental Impact Statement ("EIS"), including a noise study, before permitting any expansion at MMA. In Count Two, Fairview alleges that the FAA has violated 14 C.F.R. § 91.119 by failing to ensure the safe operation of MMA. In its Third Count, Fairview alleges that the FAA has violated 41 U.S.C. § 44701 by failing to adopt appropriate security measures. Fairview claims in its Fourth Count that the FAA has violated 41 U.S.C. § 47107 by failing to ensure McKinney's compliance with its obligations under certain grant assurances.*fn6 Specifically, Fairview claims that the FAA: has failed to ensure that McKinney has maintained good title to the land surrounding the airport (grant assurance #4); has failed to require that fair consideration be given to the interest of the community near where MMA is located (#7); has failed to require that MMA be operated in a safe and serviceable condition (#19); has failed to require mitigation of the bird hazard (#20); and has failed to prohibit expansion not included in an approved ALP (#29). Finally, in its Fifth Count, Fairview seeks a declaratory judgment that the FAA has negligently overseen MMA.
On February 13, 2002, the FAA moved to dismiss Fairview's claims for lack of subject matter jurisdiction and failure to state a claim. As discussed more fully below, the FAA's motion is based, in part, on the theories that Fairview has not properly exhausted its administrative remedies and that the D.C. Circuit has exclusive jurisdiction over certain of Fairview's claims.
Presumably in response to the FAA's motion, Fairview voluntarily withdrew its appeal pending in the D.C. Circuit on February 21, 2002. Even more importantly, Fairview narrowed its claims in this case. In its reply brief, Fairview explained that, as a factual matter, its action was based only "on the current expansionary activity at the MMA and the plans of the activity to come," and that "additional information from prior years . . . set forth in Fairview's Complaint and Motion for Injunction . . . was provided as background." Fairview Reply Brief at 9. At a hearing, Fairview further stated that, as a legal matter, the only claim Fairview was continuing to maintain was its claim under NEPA.
Although Fairview has set forth varying iterations of its request for relief, it appears that Fairview presently seeks an injunction: 1) requiring the FAA to suspend all expansion activities at MMA until the FAA conducts an EIS; 2) requiring the FAA to suspend all federal funding to McKinney until an EIS is performed; 3) requiring a public pronouncement of what the expansion plans for MMA are; and 4) halting ...

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