good morning your honour's my name is jack the whole ski i represent i care which is a small community based ngo in rural montana counsel table is my co counsel emily wilmot and i would like to reserve two minutes of time for rebuttal today i'm going to touch upon prudential standing in and try to address a couple of the nikkei shoes in this case you know just for my own part i would appreciate your jumping to the merits and so much  argument i think is that the environmental assessment be left out viable alternatives and that's the standard in this circuit and in a western watershed versus abbey a case cited a it says the existence of a viable but an exam adulterated renders an e a inadequate and so that if there is there's an initial determination before you even get to that of what is the scope of the project and it's only with respect to an appropriate scope of project that alternatives have to be examined etc so in few of the fact that the larger planes were sort of bumping up against the maximum for a shorter runway and the idea that your traffic would increase and not decrease over time why was it in an reasonable scope of project to determine that the longer runway was appropriate first of all your honor that in the statement of purpose and need it does not say we have to build a five thousand two hundred foot runway it just says we have to build an adequate runway and four years earlier this is what the f a a said about the existing runway in the twenty ten e it said quote these improvements provide for runway taxi separation and runway length for the type of aircraft using this airport and forecast to use this airport during the next twenty years and that's in our yard at two twenty six and and ten they say the existing runway of four thousand two hundred feet is fine for the next twenty years and it forecasts are only predictions and it was a few years later that they're looking at new larger airplanes so what is on reasonable or improper about that change of scope at a later time because in if you look at the twenty ten e t a on and this is in our thousand and two twenty it says that in when they approved this airport improvement safety improvements but left the runway at forty two hundred feet that was based upon an estimated seven hundred fifty to nine hundred fifty two aircraft and so it was when they made that decision there were twice as many of these b two aircraft but they didn't feel that they had an obligation to create a fifty two hundred foot runway at that time and so they did do i want you should miss one thing it's more a question of appropriate exercise of discretion they don't have to be blind to make permissible decisions no we certainly can't and nor can the court tell them what airport to decide to bill but if i could go back to my premise about alternatives if you take a look at figure one point five in the environmental assessment it shows a picture of the runway and my client's neighborhood bumping against up against this expanded runway literally at its doorstep and the fact that in twenty ten they were perfectly willing to approve a project that did not lengthen the runway and also under their own guidance and this is in the defendant's brief it page thirty seven four thousand eight hundred foot runway would have met their own policy requirements but wasn't that a two phase project wasn't that anticipated to be a two phase yes and no in the e a a they said saying now well that they talked about it but they still would have been in a new environmental assessment or in a full environmental impact the document says in the decision notice that they agreed to do additional need for process and make a new decision before they approved phase two and that's that and they did do a new process that's the process we're looking at now but this is not phase two you're on a this is this well the standard is whether or not you know the decision they ultimately made was arbitrary and capricious whether it's based on a consideration of the relevant factors and what has never occurred is a side by side comparison of not expanding the runway or only expanding it forty eight hundred feet rather than the full five thousand two hundred feet to look at the amount of of land that's being taken and the amount of wetlands that are being taken the increased noise and air pollution that comes by building a jet cord in someone's neighborhood and that side by side comparison is what neither requires and that's why the standard in this circuit repeatedly has been if there's a viable but on exam and alternative then the a is not valid and that's my position i am not asking the court to say you know you can't build a fifty two hundred foot runway but it's this is i mean the alternatives are the heart of the nepa process and without that side by side comparison of the impacts neither the public the f a a or in this case the county government that has to give its blessing to the project as well has all of the information to make an informed decision and i ask a question couldn't land on the shorter runway at least not if they're going to be served at capacity and of course we have other cases were folks have very vividly illustrated the very severe forest fires that happened in this area so why given given  that fact alone i'm straining to see an abuse of discretion here even if even if the volume was questionable just this capacity issue for that size aircraft seems to me to be very compelling and the the forest service is chief air tanker base one of three in the country is located in missoula montana about twenty air miles away and so there's the force of the e a does make that statement that they would like to land there but there was  no you know there's no evidence in the record that the that the primary retardant dropping planes which are seven thirty seven's and this runway is not suitable for those that there was any  hindrance of their ability to operate on the forest fires and this is your is your response that they didn't need this runway to operate their their fire retardant planes that's right there's not they're  not based in hamilton montana the base to help me out with a record site where i would i find that in our record it's not in the record your honor it's you know there is one or two sentences that says the for would appreciate a longer runway but there's not a lengthy discussion about how their operations fighting fires have specifically been impaired by the shorter only reference i was referring to the only ones i've seen but i want to invite you to point out if i'm missing is the one that  you see that with the existing runway of choosing with with the planned expansion of the runway it bumps right up into a residential neighborhood and you know that leads to another issue that is important  clients and that is the fact that the government did not address potential impacts to the property values can i ask you about that because because their response of course is that they did that they didn't look at every property values study but they looked at some and like to hear why you think what they looked at is was inadequate ok there's nothing in the e a a proper about property values and there's no appendix there's no study there's no evaluation what i saw in the record and they say there citation of the record is a is a brief two or three few sentence response in the in response to comments and so my clients provided seven six or seven studies in the comment period they actively participate and said would you please look at these and in response to comments they said they didn't have to but there's no evaluation of impacts on property values in the e p a itself and there's no evaluation in any of the numerous and the f a's credit they did respond to some issues like we raised air quality and they have one hundred twenty page appendix so so it's not that they aren't aware and they can't respond on the record but it's not in there for  property values and you know again this issue when you when you look at what's going to happen if you're building a jet port in a residential area you are going to add new ois an air pollution this and a change to the status of the area and that in turn is going to it will affect property values it's important and the other thing that the government said with virtually no explanation is that ok there's been property residential areas here for fifty years as long as us airports have been here so the airport doesn't affect property values and that's frankly ludicrous because it's a forty two hundred foot runway it's a small rural airport and that's why people live out there because there haven't been it hasn't been constructed to facilitate the operation of jet aircraft and so to say that they hope because homes have moved out there  without any quantitative evidence without any expert review or discussion is not a basis for saying and therefore we're not going to look at property values so your honor i see i have about two minutes and thirty one good morning honors may it please the court my name is tecla hansen young and i represent the f a this court should deny the petition for review because as is demonstrated the administrative record thoroughly evaluated the concerns that have been identified by the petitioners hundred foot long runway it's perfectly acceptable for an agency to respond to a project proponents proposal as part of its purpose the need and that that approach has been affirmed as reasonable and citizens against burlington a d c circuit case that's discussed in our brief here also f a also identified it statutory goals to write safe and efficient runway operations and as as was noted earlier one crucial factor in approving the project was the need to lengthen the runway to enable more efficient operations for by for example forest service firefighting aircraft what's noted in the record at as the are nine thirty five and thirty six are the two incident reports that were filed by two aircraft in two thousand and eleven that were not even filled to capacity which which for for these types of aircraft when they take off from this airport they can only operate at eighty five percent capacity so that means that they're carrying fifteen percent less flame retardant than they would otherwise be able to do if they if the runway was fifty two hundred feet long so they were already operating at less than full capacity and they had to release more fuel retard more flame retardant in order to safely take off also as the r seven seventy one to seventy five is a discussion from the forest service that explains why it operates at the at this airport and why it wanted the longer runway why that would be better for the agency and for firefighting operations and edition longer runways provides higher safety margins especially when pilots are operating under less than optimal conditions and again more efficient operations so aircraft can carry more passengers more fuel more cargo such as fire retardant in addition the longer runway here would allow larger aircraft which this airport seats see some of and that is medium sized aircraft between twelve thousand five hundred pounds and sixty thousand pounds to operate at this airport and a major difference between the two thousand and ten e a and this project at issue here is that the county and f a both decided that it would be fiscally advantageous to go forward with this project in one go lengthen and lengthen the runway at the same time that it was moving and widening the with between the taxiway and the runway you mean is as opposed to doing this in to fit into phases that's correct and the discussion of that occurs at  the project and instead decided to go back and study the extent of operations of the airport and come forth with a proposal that included lengthening the runway all in one go this analysis is thorough and reasonable and the petitioners haven't identified any reason why f a's decision that all of the alternatives that would study in detail needed to be fifty two hundred feet this court should defer to f a's decision on this point  i would also note just what to help clarify the current runway at forty two hundred feet is only long enough to serve seventy five percent of all small aircraft that currently operate there and this distinction between the forty eight hundred in the fifty two hundred foot length has to do with what percentage of small of small aircraft will be accommodated by those links so the forty eight hundred foot length will only accommodate ninety five percent of all aircraft the fifty two hundred foot length will accommodate one hundred percent of all aircraft f a's policy is to fund projects that accommodate at least ninety five percent of all aircraft so the minimum it would need to be forty eight hundred foot a forty one hundred foot runway and here again the county determined that it would make more sense to do a fifty two hundred foot runway all at once particularly because this airport is expected to grow over the future council could you respond to opposing counsel is concerned that the challengers issue about property values was adequately considered yes i would first note that in the opening brief the petitioners do not link the consideration of property values with environmental impacts and looks they did in their common they talked about noise pollution or pollution other environmental issues so just directly to the question if you don't mind sure the the discussion of the project's impacts on property values is more than sufficient that discussion occurred at nine thirty eight to nine thirty nine in the supplemental excerpt and what f a did was it looked at the studies that the petitioners provided and it acknowledged that some of the studies show that noise may negatively impact property values but other studies that combine noise impacts with proximity to airports showed a net positive effect prices on values because of the proximity to the airport means that there is easier access to travel and additional employment opportunities a also noted that one of the key studies relied on by the petitioners the booz allen study itself said that it's methodology used in that study should not be used to determine property values at how an airport project would affect property values at other airports because the analysis that that needs to be done is so unique to the geographical area and the airport and the project at issue so with all of this f a a explained and noted that it would be difficult to draw clear conclusions based on the available information about how the airport expansion would affect property values but it noted that here the project would contrary to the current configuration me that no houses were in the the noise contour so the project would have a net effect of reducing noise impacts on neighboring residences and also a noted that developers since the one nine hundred thirty s have been construct this airport has been there since the one nine hundred thirty s and this neighborhood this area has continued to expand in spite of the fact that the airport is there and so f a a noted that given facts that the new location would actually reduce noise impacts for residents and the fact that this area is continuing to expand f a a concluded that there that there were not going to be significant impacts this is more than sufficient for f a a to have analyzed the potential impacts on property values and i would note that the petitioners do not identify any particular flaw with this analysis f a a did in fact consider the studies that were provided and responded thoroughly nepa does not require f a a to have gone out and done and commissioned specific studies related to this project and its impact on property values and f a a thoroughly considered the information that was presented to it and responded to those concerns unless the court has further questions i don't believe that we do i would ask that this court reject the petition for counsel your honor if i could respond to co counsels excuse me opposing counsel's argument on property values there is nothing in the e a a proper that discusses property values what she's referring to is in response to comments  and when the f a a says that we had no opportunity to we didn't we didn't rebut anything they said that's because we weren't given the opportunity to we ask in writing twice for an opportunity to comment on the final environmental assessment both on this issue and on the issue of these fuel logs that appeared for the first time and again and i would like to note that you know we asked for those fuel logs repeatedly during the administrative process so that we could have the man alive by an expert and we subsequently were declined and told they were private property and would not be released to the public and then they show up in the finally a and we are not given an opportunity to comment and so i and we don't ever get a chance to comment on it but going back to the property issue in their response to comments they state you know for example conscious decisions have been made by the development of community to build new homes in proximity to the facility  you know that's just a bald statement it doesn't prove that this new expansion isn't going to affect property values that's not in there in another paragraph there's a long discussion and this is in our each page one ninety three and one ninety four there's a long discussion about how these improvements are based on an airport master plan and they're consistent with the forecasting report well that has nothing to do with property values in so i would encourage the court to take a look at the response to comments and juxtapose that over the nepa obligation to put the information out for it to give the public an opportunity to review and critique it if this all had been said in the draft environmental assessment and we didn't comment on it then i could stand here and make this argument but the point is is that we did comment as much as we could and nothing was changed in the a but now the f a a is coming back