                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 14 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



AMERICAN AVIATION, INC.; LARRY                   No. 10-72772
D. WRIGHT,
                                                 TRAN No. 13-08-01
              Petitioners,

  v.                                             MEMORANDUM *

U.S. DEPARTMENT OF
TRANSPORTATION; FEDERAL
AVIATION ADMINISTRATION,

              Respondents.



                     On Petition for Review of an Order of the
                              Dept. of Transp., NTSB

                    Argued and Submitted November 15, 2011
                            San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

       Petitioners American Aviation, Inc. and Larry D. Wright (collectively

“American”) appeal from the Federal Aviation Administration’s (“FAA”) Final

Agency Order on the Initial Interim Operating Authority (IOA) Allocation



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“Order”) denying American additional interim operating authority (“IOA”) over

Glen Canyon National Recreational Area. We have jurisdiction under 49 U.S.C.

§ 46110(a), and we affirm.

      As an initial matter, the FAA argues that American waived its right to seek

any increase in IOA and therefore cannot claim error with the distribution of IOA

on appeal. The government, however, is incorrect because it misapprehends the

scope of American’s waiver. During the administrative hearing, American

indicated that it was forgoing any claim to IOA based “on operations of Sunrise

Aviation,” informing the Hearing Officer that he could “take any interest

[American] might have previously claimed on that off the table.” The Hearing

Officer asked American whether it was referring to its initial IOA application, in

which American sought 11,350 flights over Glen Canyon. American confirmed

that it was withdrawing any claim to IOA requested in that application other than

the 462 it received in 2003. Although American may have waived its right to IOA

based on this application, it did not waive its right to an overall increase in IOA.

      American contends that the FAA acted arbitrarily and capriciously in its

allocation of IOA because the FAA allocated significantly greater IOA to

American’s competitors than to American. The FAA’s allocation of IOA was not

arbitrary and capricious, but was based on the evidence presented to it and made in


                                           2
accordance with the statutory limitations in place. Under the National Park Air

Tour Management Act of 2000 (“Air Tour Act”), the FAA lacks authority to

increase the number of operations for any operator above the number of IOA

allocations that was originally granted to the operator unless both the FAA and

National Park Service (“NPS”) concur in the increase. See 49 U.S.C.

§ 40128(c)(2)(B). In 2003, American applied for IOA over Glen Canyon, and the

FAA allocated 462 flights to American. ERII, Tab 8 at FAA 001751. Without the

participation of the NPS, the FAA lacked authority to increase IOA allotments for

American (or any other carrier) over these original amounts—a limitation noted by

the FAA in its Order. Consequently, when American withdrew its claim to

additional IOA based on the operations of Sunrise Airlines or based on its original

application for IOA, the FAA lacked authority to increase American’s IOA without

the concurrence of the NPS. Because the FAA was prevented by statute from

increasing American’s IOA without NPS approval—but was not precluded from

decreasing its competitors’ IOA, which it did—the FAA’s conduct was not

arbitrary or capricious. See W. Radio Servs. Co., Inc. v. Glickman, 113 F.3d 966,

971 (9th Cir. 1997) (finding no error where “the [Forest] Service followed the

required procedures”).




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      American next claims that the FAA erred by allocating IOA using

procedures other than those established by the Air Tour Act, 49 U.S.C. § 40128.

The Air Tour Act permits the FAA to modify “interim operating authority based on

experience if the modification improves protection of national park resources and

values” without requiring the use of any specific procedures. 49 U.S.C.

§ 40128(c)(2)(I). In modifying the allocation of IOA here, the FAA credited

NPS’s intent to “improve[] the protection of national park resources,” and noted

the NPS’s concurrence in maintaining the status quo as an “appropriate

modification to address the particular circumstances involved with this

Investigation.” There was no error in the FAA’s conduct.

      Finally, American argues that the FAA was unreasonably delaying

resolution of American’s application for an increase in IOA and asked us to order

the FAA to act. But after this case was argued and submitted, the FAA determined

that an increase was unwarranted because the NPS found that American’s

“proposed net increase of 7,034 flights per year would [not] improve the protection

of park resources and values.” Dkt. 33. As we have been advised the FAA has

now resolved American’s application, American’s request is moot.

      PETITION DENIED.




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