good morning and may please the court my name is matthew adams appearing for the city of beer in and joined by lisa marshall the city attorney i'd like to reserve three minutes if i could and i'll keep my eye on the clock this case is about whether it was arbitrary and capricious for the f a a to rely on a categorical exclusion from need to review to avoid preparing either an environmental assessment or an environmental impact statement for applied flight that sends a low flying aircraft directly over the city beginning with the plain language of the categorical exclusion itself the cadillacs it applies to quote modifications to currently approved air traffic control procedures conducted below three thousand feet that do not significantly increase noise over noise sensitive areas the problem for the f a a here is that at the time of its decision there was no quote unquote currently approved procedure but was i'm sorry it wasn't the manual p you're the manual turning procedure wasn't bad the procedure that was in effect so your honor is correct that these aircraft were turned to manually some of them were turned t the two hundred and fifty degree having some of them used other headings the turn was made at various points and so the result was you had this distribution of aircraft and no neighborhood bore the brunt of the whole air traffic  was that a quote unquote procedure we know that it wasn't because it was not included in the so called letter of agreement or alloway between the tower at the airport and what's called the terminal radar tray com so before two thousand and sixteen excuse me there was nothing in the letter of agreement and that addressed the southbound turboprops how do we know that in order for some procedure to be a procedure for purposes of the is there a regulation to that effect well the elo itself purports to list all of the procedures that pertain to the relationship between the tower and track on so i guess it's theoretically possible that there is an error in the yellow way such that it was published improperly and it didn't include all does it say that any other procedure is not a procedure or does it say as well as all so you're saying there is an inference that if it's not in here it's not a procedure is is that the argument that's right i mean they publish this letter of agreement that purports to pull together all of the procedures in one place and i suppose it doesn't say there are no other procedures explicitly but i think we can all see this just help me out here as a matter of sort of basic english meaning of the word procedure there was a procedure in place it was a sort of ad h type of situation and for that reason wasn't easily reducible to a formula but it wasn't as if they were just operating blindly or  without any consideration of what went on they had a way of figuring out when they wanted these planes to turn and when they didn't let me offer two responses to that and i think one goes directly to what you just asked me and the other maybe provides a better answer to your question it could so if one were to read procedure to mean as you've suggested anything that anybody does provided that it is done essentially if anything is a procedure even if it's ad hoc then we have a problem because this particular categorical exclusion is one sub part out of four and kaiser the supreme court just told us we have to use traditional tools of statutory construction and one of those traditional tools of course is we have to look at the structure of the whole thing and make sure it fits together right so this categorical exclusion if i could use the flights that are procedures that are under three thousand feet but do not run aircraft over noise sensitive uses at all right and if we were to accept that anything can be a procedure even if it's just ad hoc then i think those two categories collapse on themselves and there's no longer a need to stink in between them well you know council i mean isn't it correct that during the administrative procedure when the f described the no action alternative that they said that the no action alternative was a manual procedure i think that's accurate so you know i'd like to i'd like to make sure you spend enough note to circle back on rebuttal so and cumulative impact the question of course is whether the f a a was required to consider the cumulative impacts involving this particular project together with sustainable airport master plan which folks refer to as the at the focus of your cumulative impacts at there was this sample call it i don't know if that's what they're calling it you're not talking about any other plan projects that were in the works because i know they go through a number of projects in their categorical exemption document that's like a year on i think they listed seven or eight they were mostly roadway improvement projects but they did not do was look at anything that was proposed to be done at the airport itself is there standing is they don't even mention the sample is not correct that is accurate is that the right waited just to talk about the acronym is the people call it the samp consideration of x or record i didn't see the two thousand and fifteen technical memorandum and one thing that i hope you're gonna get from that technical memorandum is that the sample planning process was funded by a grant from for them at the time of this decision well the f a a has agreed that your honors may consider both of those but which was before them well they've taken the position that neither was before them and they didn't consider either of them what my question was how it rose to the level of a future project or reasonably foreseeable future project when it doesn't identify anything of that nature so can i of the project that we're here on so just one observation there's just as a practical matter it's sort of inconceivable that all of the planning for a new terminal and twenty more gates in this phenomenal build out of cargo facilities would have happened within those two weeks but just drilling down on the specifics of what is in that two thousand and eighteen report it is filled with maps and plans and descriptions of these new facilities that are all dated and seventeen council i mean since the f a a never mentioned the samp they obviously didn't say the samp is just a plan to make a plan and is not reasonably foreseeable they never made any kind of a finding because as i understand it they never mentioned it that's accurate your honor and so this is not one of those cases where there's a dispute about an agency's reasoning for eliminating something from a cumulative impact analysis here there's nothing to defer to there's just a void and i would just note in addition the city asked the f a a to look into future projects at the airport that's it one hundred and thirteen dollars and the response to that comment says nothing about future projects at the airport so i guess that is the cumulative impact question sort of in a nutshell there's also the question of public controversy if i could just circle back quickly before i lose it you know on this question of whether all of the procedures are in the letter of agreement you know we think it's worth noting that you the original procedure was adopted in two thousand and sixteen and in the face of litigation it was withdrawn and the mechanism with for withdraw was to formally strike it from the letter of agreement so that the letter of agreement again served as the register of all of the procedures and then when it was really approved the mechanism was not to place it somewhere outsource sort of leave it be on the side because there were other places where other procedures lived but instead added back to the letter of agreement and so that's another reason why we believe that letter of agreement was intended to be the full roster of all of the procedures your honour's i c m running fairly low on time here do you have other questions for me or should i reserve rebuttal i just have one question in my understanding is in the administrative process the e p a asked the f a a to clarify the extent to which the air traffic is expected to increase in incorporate that into the analysis environmental analysis for purposes of justifying the project of course the justification is that there will be all these additional operations that we need to accommodate in the future thank you thank you good morning my name is eric a transfer responded f a and with me is patricia team from apple well the action here was a modest change the way the departure procedures are handled for two percent of departures from sea tac  purpose to meet of this project was to increase safety and efficiency in the national air space to help manage the workload of busy air traffic controllers variance trying to import a lot of concepts from environmental analysis and environmental impact statement cases involving much more complicated projects into this case but this action falls within an established categorical exclusion from that more detailed need for a few this is a modification procedure that does not significantly increase noise this was an established category of the type of project that will not normally require more and what do you say to their argument that this wasn't pretty modification of procedure because there was no established procedure in the listing of procedures so you're going to sort of taken us off track i think by thinking a procedure in a different way than the way usually refers to things like published departure procedures so this is going to get a little bit technical but i'll do my best here so for instance there is a published departure procedure that a lot of turboprops use at seattle the seattle standard instrument departure and it's basically a set of instructions for departing planes and it says take off at the runway heading and then wait for more instructions from air traffic control that's where this change happened as within that framework previously those further instructions from air traffic control for this subset of a subset of departing turboprops those instructions would come after individual coordination between the airport tower and the trade con now and nearly always it would result in a two hundred and fifty dollars heading being issued now that cordon nation has been essentially eliminate it's been pretty coordinated that receiving and the timing when they're receiving they're having their turn after they take off cancel you you said that this affects two percent of the sea tac departures that's right what how many flights a day is that sorry i don't know so it's  on average over the course of the year two percent but that's to two percent of the turbo props or two percent of all departures at the air the airport turbo plop turboprops and jets two percent of all departures including we know that under the categorical exemption guidance you can't rely on a categorical exemption if there are extraordinary circumstances which include that directly indirectly or cumulatively it creates a significant impact and so why in making the determination that there weren't extraordinary circumstances why didn't the f a a look at projects that were in the erks in the sample for us as well as you mentioned during question earlier really at at the point that they were conducting this analysis there were no real projects here that were that worst that had been seriously propose rethink was stone planning so f a a and the port of seattle had not yet even issued their scoping documents for their environmental review these are tech there's a technical memo about possible projects that by the way wasn't published yet at the time that f a a even issued its decision here so they didn't know if for when these projects were what occur they didn't have the type of information about things like the number of say that i mean what would have been the burden on the f a a a to just simply say the sample is irrelevant to our statutory duty to consider cumulative impact because it really doesn't propose anything i mean especially given that this was funded in part at least with f a a money and it was done it was being done in consultation with the f a a what would have been the burden on the f a a to just say well this really is nothing that we need to consider i suppose that's no great burden but also fury and points to page one hundred and thirteen of the excerpts saying that they they raised the stamp and we never responded sample make a vague reference to other airport projects and i don't think it's enough to put the f a a on notice that that's what they were talking about so i mean i guess i could have speculated that that's what and their argument as i understand it is that they saw on the timing of the nd document which does identify specific projects the f a a must have been aware that those projects were pretty close to being proposed during the period of  determination of the categorical exemption do you agree with that i mean i guess this decision was published in april th teen the memo that they're citing was from actual numbers that court said that allowed meaningful consideration of those other proposed effects in the earth island case you know the agency had knowledge that there's a now living right over there in the next national forest and then you know so they didn't really have to consider that i mean it those these are cases where well st of all they're e i a s cases so right we're talking about a true cumulative impacts analysis in those cases those are cases where there are actual numbers allowing for meaningful consideration there just isn't that kind of information available that would allow a meaningful consideration of how the impacts of this action which are de minimus how they would interact with possible effects of other possible proposed plans i'm certain you know when you say when you say de minimus i mean i suppose that's in the eye of the beholder if you have a that averages over the day it gives more weight to noise that occurs at night and it's basically a way to try to objectify take an objective look at the total amount of noise that an area sees so when f a a looked at this it actually did two different annoys analyses for this project the st looked at just noise from turboprops and then analysis sort of zoomed in on the expected effects of this action and sort of exaggerated the effects and they saw essentially you know no chain no either significant noise increase or a lower level that that's called reportable noise increase they did a nd noise analysis where they looked at the total aircraft noise in this area and that also showed no changes at all nothing significant nothing reportable so i don't mean to downplay the subjective experience of people hearing turboprops but applying the  accepted objective noise measurement thresholds here it doesn't rise to that level we have some cases community council and and the last one was barnes i think which effectively say a change in flight patterns don't have a significant impact don't have a growth and is seeing impact  how did those affect our analysis here i think seattle community council federation is extremely helpful i mean it's that project was different than the one here in that it was much broader in scale but it was similar in that it was being driven by the need for safety and efficiency in the face of increasing numbers of operations at the airport so the agency explained that yes growth at the airport was an impetus for  i think those two concepts almost merge in this area i want to distinguish community because i think i think that case is extremely similar to this one and there's no reason to deviate from it here but two of the cases that perience relying on are quite different and i want to explain why so one the ocean advocates case that was a project meant to increase capacity so this was  i dock i believe a new pier so they had to study growth in that example davis versus coleman another one where the purpose of a highway project and interchange upgrade was to allow access to improve access to allow for create additional industrial growth in an area and so they needed to study that growth that's not what this project is about this project is about helping giving air traffic controllers a new tool to help manage their workload and the f a a has no way to control how many new flights the airlines schedule and it doesn't believe that this departures will cause the scheduling of additional flight and so the f a a could theoretically say even if we were considering this samp as something that's going to happen we understand there are going to be these increased flights we understand they're going to be increased turbo prop flights but we don't find the cumulative impact significant or if they had to go further they could talk about the importance of the safety factors that's this is a cattle so what is supposed to happen with the cat x is they didn't see determines that the the the action falls within the established category and then does a quick check to make sure none of the extraordinary circumstances are implicated what f a has done here is goes far beyond that and unfortunately it seems like the additional documentation has almost opened it up to additional criticism but this far exceeds what you normally have and a cat like situation and you're in has not identified anything about this decision to use the cat x or the analysis supporting it that was arbitrary and capricious if there are no further i think you're on her just a few very quick points so on this question of whether this is a quote unquote limited change as counsel suggested we would suggest comparing your fifty five and fifty six which provide a visual representation of the change that was affected and the question of whether the sample documents were published and when of course publication is not the standard the standard is reasonably forsee a reasonable foreseeability you the exact language and so we say quote the draft that's the preliminary document that they made available fails to evaluate and directing cumulative impacts that failure is significant in light of capacity enhancing future projects planned for the airport so we didn't use the acronym sample i don't think we knew the acronym samp of that point but we were clearly pointing towards that and it's hard to imagine that the that contains the two thousand and seventeen plans for the new terminal and all the gates and all the rest of it was formally published two weeks after this decision than in july so about two months after this decision and around the time we're filing this petition for review the f a a goes public with the formal initiation of environmental review for the sample and that processes is running now and the near term projects that are proposed include two things that were in that technical memorandum that stated made twenty eight thousand on the notion that there is some difference between cumulative impacts analysis in an aston cumulative impact analysis elsewhere keep in mind that