                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            DEC 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT

JAMES E. LYONS; TINA NGUYEN;                     No. 14-72991
MARY JANE MCCARTHY; A. FRANK
ROTHSCHILD,

              Petitioners,                       MEMORANDUM*

 v.

FEDERAL AVIATION
ADMINISTRATION; et al.,

              Respondents.


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

                     Argued and Submitted December 14, 2016
                             San Francisco, California

Before: GRABER and HURWITZ, Circuit Judges, and FOOTE,** District Judge.

      Petitioners James E. Lyons, Tina Nguyen, Mary Jane McCarthy, and A.

Frank Rothschild timely seek judicial review, pursuant to 49 U.S.C. § 46110, of a

final action of the Federal Aviation Administration’s ("FAA"). Reviewing under

      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
       The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
the standards of the Administrative Procedure Act, Barnes v. U.S. Dep’t of

Transp., 655 F.3d 1124, 1132 (9th Cir. 2011), we deny the petition.

      1. The FAA did not pre-judge the environmental impacts of the proposed

project. Read most naturally, the challenged statement in the FAA letter means

only that, if the analysis of the project were to demonstrate significant impacts,

then the project would be altered or tabled. The agency conducted an extensive,

detailed, mathematical analysis of the anticipated noise impacts. See City of

Mukilteo v. U.S. Dep’t of Transp., 815 F.3d 632, 638 (9th Cir. 2016)

("[A]pproving a schedule which included the date a FONSI could issue did not

obligate the FAA to reach a Finding of No Significant Impact. The FAA simply

identified its preferred outcome and laid out an optimistic timetable for achieving

that outcome.").

      2. The FAA’s use of estimated future flights and flight tracks was not

arbitrary and capricious. The very nature of modeling forecasts requires an agency

to use reasonable estimates that it develops from its expertise. See, e.g., City of

Mukilteo, 815 F.3d at 637 (noting that "we are to defer to the FAA especially in

areas of agency expertise such as aviation forecasting" (internal quotation marks

omitted)).




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      3. The FAA properly assumed that the adoption of the proposed action

would not result in an increased number of flights in the Metroplex. As in Seattle

Community Council Federation v. FAA, 961 F.2d 829, 836 (9th Cir. 1992), this

project "is not designed to induce growth but rather to enhance the safety and

efficiency of [existing] traffic." See also Morongo Band of Mission Indians v.

FAA, 161 F.3d 569, 580 (9th Cir. 1998) ("Growth certainly may be a foreseeable

indirect effect of the [project]. However, the project was implemented in order to

deal with existing problems," so growth need not be discussed in the environmental

assessment.); Barnes, 655 F.3d at 1138 (describing the holdings of Morongo Band

and Seattle Cmty.).

      4. The FAA properly used a baseline that incorporated the noise levels from

an anticipated increase in the number of flights over time. See Cascadia Wildlands

v. Bureau of Indian Affairs, 801 F.3d 1105, 1112 (9th Cir. 2015) ("An agency can

take a ‘hard look’ at cumulative impacts . . . [by] incorporating the expected impact

of [a reasonably foreseeable] project into the environmental baseline against which

the incremental impact of a proposed project is measured.").

      Petition DENIED.




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