Case 149

Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998).

Plaintiff, the Morongo Band of Mission Indians, petitioned for a review of the decision by defendant, the Federal Aviation Administration (FAA), to implement the Los Angeles International Airport East Arrival Enhancement Project, and raised claims under the National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), Section 4(f) of the Transportation Act, and various FAA regulations.

The court first stated that agency decisions under NHPA and Section 4(f) were to be reviewed under the arbitrary and capricious standard.

The court then dealt with the argument made by the tribe that the court must apply the "usual canon of construction that a statute designed to benefit Indians must be liberally construed in favor of the Indian beneficiaries," citing Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir. 1994). The court stated that, although the United States owes a general trust responsibility to Indian tribes, unless there is a specific duty placed on the Government with respect to Indians, the responsibility is discharged by the agency's compliance with general regulations and statutes not specifically aimed at Indian tribes. The court believed that the statutes at issue in this case were not designed to benefit Indian tribes.

Among other things, the tribe also claimed that FAA violated NHPA when it did not prepare an Environmental Impact Statement (EIS) as required by NEPA and FAA Order 1050. The FAA order requires the preparation of an EIS when agency action has an effect that is "not minimal" on properties protected by NHPA. The court noted that FAA stated in the Environmental Assessment (EA) that the only change that would result from the project would be an increase in "high altitude aircraft overflights." The assessment also stated FAA's conclusion that the project would cause no adverse impacts and that any surrounding historic resources would be unaffected by any of the alternatives. The court reasoned that because the effect would be minimal, an EIS was not required pursuant to FAA Order 1050.

The tribe also argued that FAA had not made a reasonable and good faith effort under Section 106 of NHPA to identify all properties eligible for the National Register of Historic Places because it failed to follow up on information that indicated the existence of such properties. The court distinguished this case from Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995), finding that "FAA's conclusion was not based on a finding of no cultural properties in the area, but on the fact that the noise and other studies showed that there would be no impact on any type of property in the project area" (emphasis added). Accordingly, the court decided that the failure to identify specific potential sites or properties is irrelevant.

The tribe further argued that NHPA required FAA to obtain the tribe's consent prior to implementing the project. It cited Section 106 of NHPA, which states: "The Agency Official shall invite the State Historic Preservation Officer, and the Council should be sensitive to the special concerns of Indian tribes in historic preservation issues, which often extend beyond Indian lands to other historic properties. When an undertaking will affect Indian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement." 36 CFR Section 800.1(c)(2)(iii). The court found that consent from the tribe was not necessary in a case such as this, where the effect on cultural properties was insignificant or minimal.

The court concluded its review with an analysis under Section 4(f) of the Transportation Act, finding that it did not apply here since the increased high-altitude air traffic would have an insignificant effect on the "use" of the land.

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