the court i'd like to reserve two minutes for rebuttal and that's very well thank you it was quite this case centers on the moment field airport area safety program described by one f a a official as being likely to be very controversial because of older understory combs and neighborhood surrounding the airport and as a quote massive and quote tree removal program quote loosely based on our regulations and quote i represent carol kaufman who is a landowner whose land within the program area and who has been approached by the lieu of a regional airport authority and asked under pain of condemnation to convey an easement an abrogation easement far more onerous than is justified by the stated purpose of the safety program which is to remove obstructions to the airspace needed to request the f a a to restore night flights under instrument only conditions the other petitioners are property owners in the area whose use and enjoyment of their properties are affected by th should we be reviewing this at all and i guess this also relates to the whole standing issue of standing here do you need shouldn't this be in state court for eminent domain rather than before us at this point and that is the heart of the matter here this is the so called airport safety program which was designed by bowman field first of this this review is of a order and is placed here by federal statute this is the appropriate venue for looking at the compliance by the f a a with the national historic preservation act the national environmental policy act and section four of the transportation act the question of whether the l r a as the airport sponsor is an appropriate party here is a separate related question the if you look at the airport safety program it is a continuum it began in two thousand and twelve with the eight the local airport authority you can no longer allow night flights under instrument only conditions because you have what look to be objects patrolling into the airspace there's airspace projected on or for the runways that triggered the development by the yellow ray of the airport every the safety program which is identified and described by the l or a as being a program intended to comply with the the terminal instrument procedures or so called turps guidance by the f a a in order to identify the obstructions to remove those that are hazards in order to get f a a approval to reinstate those flights the issue of the acquisition of easements and the cutting of the treaties is one small component of a federal effort from start to finish navigable airspace is our federal jurisdiction  matter of federal sovereignty and the airport sponsor in this case for the bowman field airport has a continuing federal obligation to maintain the airspace in a safe condition that is what triggered this airport safety program it's not as if they get the  it woke up one morning and said you know we haven't acquired enough easements lately that's good forty more in chap one hundred four trees down what happened was they were told you can no longer allow night flights under instrument only conditions which affects five percent of their fleet nine percent of the time you can no longer allow that until you identify the obstructions which is done with federal money you do the environmental review underneath it which is done with that ramani you then submit to us the obstructions that you've identified and the f a a identified which of those were hazards this was an ongoing federal partnership that occurs under the federal regulations that govern the navigable airspace the f a a that's why they undertook the review underneath and under the national story but that's when the but when they undertook this federal funding was being requested and they abhor claims that the process was taken so long that  so what if you obtain a ruling that said it was an error to conclude there was no significant environmental impact what do act or under the council on environmental quality regulations which says that she will refrain from prejudicial commitment of resources in advance of the completion of the need for a process they are a flagrantly violated that and in fact as late as our tobar fourth a memo which is cited in all i mean the point is good at this point i'm not sure that the airport authority was ever required to go the federal route in the first place or whatever it did in going the federal program i can't see how we would do it with state funding i'm not sure how a federal court would gallop in or an injunction against you under federal particular component of the program does not defend realize it what it does is try to segmented inveigle ation of nepa they took federal money first of all they began this process because they were restricted by the federal government from using night flights under instrument conditions this whole program was designed the trees were identified but the sole purpose of getting f a a approval at the end of the process for reinstatement of those flights under this circuit's prior rulings in slater under the the profit case under the silver case which we've also noted you can't afford a half years into a federal deeper process suddenly say you know it's taking sit too long so we're just going to use our own money do the damage and then come back for federal approval they will have to come back to seek federal approval for reinstatement of the night flight that we're limited in february of two thousand and twelve in order to do so they would have to demonstrate that those obstructions that were identified by the  well that the trees are not all gone at this point and the question is not just whether the trees would be removed everybody is concerned about safety at the airport although they've had i think one incident where somebody actually ran into a tree they've had numerous where people ran out of not recognise that these are restored neighborhoods and the trees are an integral part of that landscape what they proposed what they said without any analysis or while listening to anything in the eminent domain it's not an imminent domain issue judge it's a question of the mitigated fonzie what happened here is they took into account the mitigation and said because of that mitigation you're going to replace one hundred year old plus mature trees with two saplings they said that will help retain the value in the character of these neighborhoods that's absurd on its face what they did is they blew over any meaningful analysis underneath of the impact they blew over of the advisory council on historic preservation who said there is an adverse impact here and they basically said thank you very much we're going to go ahead anyway now they had pre ordained that and that's one of the things they say yes but somewhere in this record i mean this is a historic tree neighborhood it has many trees are there mature is they indicated a part of the reason that the f a a decided that despite the environment council recommendation that this wouldn't be an adverse effect is it only effective quote three percent of the trees that masks the fact that of the historic neighborhoods upwards of fifty percent of the properties would be burdened by these easements which are farmer owners the necessary to support this project and would suffer the loss of  please the court my name is robert oakley i'm from the department of justice and i'm representing the f a a i'm splitting fifteen minutes mr kershaw represents the airport authority will take five minutes i'm going to take ten i know i've got to watch the clock myself judge given to go to a question you did not get an answer to and then circle back to the whole question as to whether the case should be before the court their backup thirty four hundred trees in the area this is so i think it's somewhere between three and four percent another factor is th these are not all clumped together they are the reason they are important is there are two runways so therefore ins so the trees are split up into four very distinct compas points on the c from ins of the runway so it's not like one hundred four trees one big grove of trees now to go back to judge clay's question i think the answer is this case now is not properly before the court  the f a a has no regulatory authority to tell the airport authority how it goes about solving the problem intrusions into this air space that's needed for a time instrument landings  a problem and can tell them well you can't use airspace until you deal with it but for example in the environmental assessment that was done here there was another proposal that was carried all the way through and that was to put red lights on top of the trees while it was rejected not because it would have done the job but because it was considered too intrusive and i think it probably was too intrusive but my point is that if they for whatever reason the airport authority said we're going to put those lights up there i think the owners homeowners would be more upset but if they said and they did that the f a a would have no choice but to approve them for a night some return to the cafe and the point is the f a a is not the federal entity that would ordinarily enforce federal environmental law well that's because obviously the relevant determination here wise whether the there would be significant environmental impact argument is that by imposing air safety that the f a a then federalizes any action taken by a local entity to meet does air safety rules the way subject to need and subject to review by federal court such a tremendous extension of power the in this case had the airport authority been under understood from day one that this process was going to take longer than i thought and not have applied for federal funds the f a a would not be involved in this process there would have been an environmental assessment and it just simply proves too much to say it in some sort of but for causation which the supreme court rejected that in in the public citizens decision that because the f a a is the first step in the process or because some authority is taking steps to deal with safety concerns that's automatically federalized i think it's just not supported by the law and is inconsistent again with the supreme court's decision public citizen the injury here that the plane the petitioners are concerned about is the loss of of some trees is not the result of the f a a its decision here the f a a is decision accepting the environmental assessment and making a finding of no significant impact didn't even approve money itself in other words it's specifically states in the record decision no funds are going to be disbursed as a result of this issue and it took further would would have taken further action at the airport authority decided to continue and decided it did not want to and therefore the f a a is really out of the business of telling them what to do and i think this is very similar to the d and the court said very simply that there is no standing here because the city of chicago can and does make clear it will go ahead on its own funds and on money to take care of the project if i could briefly address the the question of whether of the merits here if the court gets that the national historic preservation act a massive report was prepared for the f a a and for the airport authority where someone who is clearly qualified looked at arlee areas all the trees gave you history pictures etc fills hundreds of pages it's a qualified expert and the government's intitled to rely on qualified experts opinion it's not in an administrative law case this judge is response to this court's right rather responsibility to engage in a battle of the experts and i i think for those reasons the court really shy our view is that the court should dismiss the petition but if the court reaches the merits nothing i think that's been said today changes our position that the court the agency took a board has already made a decision not to use and not to seek federal funds for the acquisition of easements for the trivia treats my second point is just to update the court on the status of these events on the ground and simply stated most of these moves have been a and the trimming should be completed during the current trimming season and so the timing is such that there's nothing left to do so how many trees would be cut down to the front or we're talking roughly a hundred programs in order to complete the program of acquiring the easements and trimming the trees the bridges made the decision not to seek federal funds on like many f a a decisions which embodied a whole series of approvals  decision at issue here that was the f a a decision this before this court is limited to the eligibility for federal grant fines and given that the authority has made the decision not to seek those funds there's nothing left here that is even if this court  eligibility decision that decision would effectively be purely advisory as as this court held in the in the southwest williamson county cases the test for mootness is whether or not the relief that this court granted well certainly the f a a on the bat within the boundaries of the airport has considerable regulatory authority and they're frequently f a decisions having to do with the operation of the development of the airport these trees are off the airport and that's important that's why the f a a decision in this issue was limited to the question of the funding there are many instances where the f a a doesn't vironment the review for projects on an airport where the f a a has regulatory approvals there are other federal approvals that are needed as well for lots of environmental review and one little piece of that was the what was the issue of whether to relocate a cemetery no federal prove were needed for that but the city of chicago had originally sought funding for that when the city of chicago said they were not going to seek funding for that anymore there was no more federal nexus for that component of the project in the court in that case held that in fact there was no federal approval there was no standing there's no article or without federal prove all the airport authority has authority under state law to condemn property and we've cited the relevant provisions of kentucky state law in our briefs and the authority has the power in fact it has the obligation to ensure the safety of this airport and that obligation is a continuing obligation the authority does this every day takes actions to ensure the safety whether streaming of trees or other things on the airport in this particular instance because the cost of purchasing  easements and trimming trees was significant the authority made the decision initially that it would seek federal funding to assist in this project and the federal funding is available in certain instances for off airport hazard mitigation hazard obstruction remov so the other piece i think that's important to keep in mind is that the airport authority is not properly here before you because the project isn't a federal action under forty nine u s c forty six one ten which gives this court jurisdiction over this case provides jurisdiction only over from review of f a a orders some of the cases in which i have cited there have been significant federal involvement throughout the entire process including the six one zero nine that provision does not apply to f a a funding decisions that provision only applies to f a a safety decisions in this instance the only decision the f a a made was to find the project eligible for federal  now the authority has decided not to seek that grant funding there's nothing left and going back your honor to your your point about is there any effect at the end of the day the answer is that the have almost all been acquired with one exception the trimming will be completed by the end of the current earnings season and even if the court were to enter an order directing the f a a to to redo its environmental review that would not affect the airport authorities process of the plaintiffs other corporation they're unincorporated association of concerned citizens i don't know how subscribers are all right so unless the court has any other questions we would submit that the l r a is not properly before this court and that the petitioners do not have article three standing even against the f a a because there is nothing left to cite here thank you thank you so let me apologize again for stepping over your question earlier on the way you have let me describe the relief that we're seeking and work backwards from there if i could were seeking an order setting aside the finding of no significant impact a record of decisions abrogation easements on these historic properties when all they needed was a tree trimming agreeing that instead they've acquired with a much more heavy hand and much more burdensome on these private landowners avocations easements without ever assessing those alternatives as well as the effect of the these historic properties of the planned airport runway expansion that is in their airport layer plan perhaps the most egregious of the failings of the environmental assessment was the unsupported conclusion that replacing these mature tree canopy with two understory saplings was quote ensuring the homes within the affected neighborhoods retain value and character that is grossly inadequate to meet their requirements underneath or with respect to section one of six that the quote find the decision of the f a a to pull the plug on a consultation with the advisory council based on a faulty analysis and in the face of overwhelming evidence to the contrary that the trees played no role in what distinguishes these historic neighborhoods and that the removal of one hundred four additional mature trees above those previously removed would have no adverse effect the finding was preordained by the f a a even before the one hundred six process began is early as two thousand and fifteen and in the appendix volume wanted page two twenty three will reflect this they had already decided that they would issue a no adverse effect determination and they would anticipate an appeal to the c h p and they would again issue a new ad it's affected germination even before they've begun the one hundred six process the conclusion that the trees are not a contributing part of the a story of landscapes is contradicted by the f a a zone staff who observe that the existing vegetation as a whole reinforces the original design intent of the garden suburbs in weighing the seven it's the consultant's report was heavily criticised by the man who literally wrote the book on the importance of natural landscapes in garden suburbs dr david ames so what we're looking for is not merely it in a temporary injunction of relief to prevent further tree trimming in order to as part of this major federal action but also adequate mitigation adequate consideration of the historic value of these suburbs and the vegetation that is an integral part of these landscapes so in answer to that and i thought the slater court was was really still down movements means  meaningful relief left to be granted there is meaning for relief here because the many for relief is not merely the batter of the tree cutting it's a matter of whether these abrogation easements were heavy more heavy handed than they needed to be the analysis of what those impacts on the park which is an almost a design park are which was never taken into account because they weren't supposed to get an easement in the first place they're supposed to be in agreement and suddenly they take a much more onerous easement over a public park that was never analyzed the last the the jointer was appropriate and not federal laughter as part of an overall federal action that began with the f a a restricting the airspace that was in the funding decision which was this entire program including the tree cutting in the easement is intended to get federal approval at the end of the process this is been it's as if you have a bridge built from point a to point i want to wrap but i'm sorry but i do appreciate your time appreciate your questions thank you very much