## United S tates Cou rt of Appe als FOR THE EIGHTH CIRCUIT

________________ No. 00-10 50

________________ Friends of Rich ards-G ebau r Airport; City o f Grandview , Missouri, a Municipal corporat ion, Petitione rs,

v. Federal Aviat i on Administratio n, Jane Garvey, A dministrator,

Respondent.
City of Kansas City, Missouri; T he Kansas Southern R ai lwa y Compa ny, I ntervenors on Appeal

.

--------------- --------------- ----------- A ircraft Owners and Pilot s Association, Amicus on Behal f of Petitioner. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Petitions for Review of an Order of the Federal Aviation A dminis tration.2 ________________ No. 00-1 9 74

________________ A ircraft Owner s an d Pilo t s Associa tion, Petitioner,

v. Federal Av i ation Ad m inistrati o n, Jan e Gar v ey, A dmini s trator; U ni te d States D epart m e n t o f T ransport a tion , Rodney E. Slate r , Sec r eta r y, Respondent s .
Th e Kansas C it y Southern Railway Co m pan y; Ci t y of K a ns a s C i ty, Missouri, Inter venors on Appeal

. * * * * * * * * * * * * * * * * * * * * *

________________ Subm i tted: June 1 3, 2000 Filed: June 11, 2001

________________ Before LOKEN, BRIGHT, and HANSEN, Circ u it Judg e s.

________________3

HANSEN, C ircuit Judge.
The Friends of Richar

ds-Geba ur Airpor t (Frien ds) and

the City of Grand view, Missouri (Grandview), filed a petition for judicial review of an order of the Federal Aviation Administration (FAA) r

eleasing airport property , challe nging the order on environmental grounds. Consolidated with their petition is the separate petition of the Aircra ft Owne rs and Pilo ts Associa ti on , challe nging the FA

A's stat utory a uthority to make the rele ase. A fter ca

refully considering the adm

inistrativ e record , we de ny both pet itions fo r review and aff irm the order of th e FAA.
I.
The Richards -Gebaur

Airport was built in 1941 on land owned by

the City of Kansas City, Missouri ( city) . In 1955, the city deeded the

property free of charge to the United States Air F orce for use as a permanent m

ilitary base. The A ir Force deac tivated the base in 19 76, dec lari ng a ppr oxi matel y 1,36 2 ac res a s su rpl us p rop erty. Since the n, it

has been a

public use g eneral a

viation airport pr

imar ily se rving sm all privately owned air

craft. In Augu st 1 985, the U nited Stat es conveyed the property back to Kansas Ci ty, pursuant t o the Surpl us Propert y Act, see 49 U .S .C. § 471 51 (1994). This conveyance required the city to use the property

as a public use airpor

t. Between 1986 and 1994, th e city

had acce pted approx imate ly

$12.2 million in federal Airport Impr ovement Progra

m fund s for air

port develo pment , and each grant requi red the city to give wr

itten assur

ances tha t the airpo rt would be

available to the publicfor aeronauti cal use.
For several years, the Richards-Ge b aur Airp ort had con sis ten tly l ost money. Between 1983 and 1997, los ses exceede d $18 millio n and we re subsid ized by the city's two commercial airport s. The air port's losses were projected to continue at more than $1.5 m

illion annually. In 1997, in an effor t to pursue a

n opportunity

to1 "Itis a goal of the Unite d States t o develop a nati onal intermodal transporta

tionsystem

that transports passe ngers and pr operty in an eff icient manner." 49 U.S. C . § 47101(b) (1994). " A nationa l interm odal trans portation sy stem is a coordinate d, flexible network of diverse but complem entary form s of transp ortation that transport s passe ngers and property in the most efficient m anner." Id. § 47101(b )(3).

2 An amended m emorandum of agreement was negotiate d on March 20, 2000, to respond to t

he possib ili ty that Kansas City would build (within five year s) a replace ment

general aviation airport on th e site. O ther provi sions of theagreem ent, however, r emai n ide ntical to th e first ne gotiated a greem ent, exc ept that the release was modif

ied to rele ase initially only two parc els of land

tota ling 497 a cres of t

he entire 1,362-ac re proper

ty fr om the obligation to continue to use them for airport use. Those two parcels consisted of the existing airfield itself and related property which wou ld, in t urn , be u sed for t he p lan ned int ermod al fa cil ity. 4 redevelop the l and into a new intermodal rail-truck freight distribution center, 1 Kansas City s ubmitt ed an appli cation to the FAA requestin g permission to clos e the airportand seeking to be relea sed fro m i ts federa l obligations and assura

nces to maint ainthe proper

ty for public aer

onautical use under t

he Surplus Property

Act and the Airport Improvement Program.
The FAA an d Kansas C ity negotiat ed a m emorandum agreem ent dated J

uly 1998, in which the FAA concluded that the terms it attached to the rele ase and closure of the airpor

t would re sult in

a net benefi t to aviat ion. The FAA found that although the facility

was m aintaining o peration a s ageneral aviation airport, i t was able to do so only at substantial

losses whi ch were

heavily subsidized b y Ka

ns as City's other comm ercial airports, d raining fu nds oth erwise avail able to th ose facili ties. The FAA found that this financial burden was not necessary in a m etropolita

n area se rved by several other air

ports that r

emain availabl e to g e neral avi ation. The me mora ndum agreem ent required Kansas C ity to de

posit $5 m

illion into an es crow ac count to be dispersed by the FAA fo r federally eli gible avia

tion im provem ent proj ects in the Kansas Cit y a rea. 2 The city also agreed that for 20 ye ars, it would deposit all net5

proceeds from the projected lea se of the property into its aviat ion accoun t for use solely for speci fied and general avi ation proj ects. I t agreed to notify the FAA of each disbursem

ent from the net pro ceeds account a nd to perm

it the FA A to audit t

he account.
On F ebruar y 22, 1999, the Kansas City City Council by ordinance approved a 50-year lease for development of the facility by the K ansas City Southern Railway Compa ny (KCSR). The voters of K ansas City approved the ordin ance in a refere ndum

vote on Augu st3, 1999. On October 22, 1999, Kansas City submitted an Environmental Docum entation Report, su pported by

exhibits, demon strating

that the development

does not present any extraordinary c ircumstances that would require further env ironmental ass essment.
In a letter dated De cemb er 23, 1999 , the FA A relea sed Kansas City f rom i ts federal obligations to main tain the pr

operty as an air port, all owing the city

to close the airportand ma

intain theproperty

as nonaer onautical, revenue- producing pr operty of the Kansas City

Aviation D epartment consistent with the mem orandum of agre emen t. T he FAA prepared no form al environmental analysis of this proposed action but considered several pertinent environmental factors before concluding that the closure was categorically excluded from the requiremen

t of pr eparing an environmental assessment. Th e FAA i ssued its categori cal exclu sion evalua tionon the same date as t he letter rel easing th e airport p roperty.
The re cord i ndicates t

hat the publi c had an oppo rtunity to partici pate in and comm ent on th e propo sed redeve lopme nt throughout the mo re than tw o year s in which the applic ation

was pending before the FAA. Thirty -five public meetings were held in a variet y of locations in addition to open public meetings before the Kansas City City Council. Four of th e public m eetings w ere held i

n the neighboring

City o f Grandview, and there

was subs tantial media coverage o f the propo sed redev elopm ent. A small number

of citizens wrote l etters opp osing the pro ject on a variet y of gr ounds,6

and a group of p ilots form

ed the opposi tiongroup known as the Fr iends of Richar

dsGebaur Airport. On the very a fternoon that the FAA issued its relea se, the FAA received a faxed l etter fr

om the Mayor of Gran dview expr

essing opposit

ion to the release on environm

ent al g rounds, but

this was t

he only opposition fr

om any governmental agency throug hout the two-year applica tion pro cess.
Pursuant to 49 U.S .C. § 461 10 (1994), the Friends and Gran dview fil ed in this court a petition f

or judic ial revie w of the F AA's a ction, challe nging the FAA's decision to categori cally

exclude th e closure

of this airport f

rom t he requiremen

t of preparin g an environm

ental asse ssmen

t. The A ircraf

t Owner s and

Pilots As sociation also petition ed for ju dicia l review , assert ing that theFAA fa

iled to sati sfy the standards of the Surplus Proper tyAct and l acked auth ority to releas e Kansas City from its federal obl igation s. We con solidated t hese petit ions for pur

poses of br

iefing and argum ent, and p ermi tted Kans as C ity and the Kansas City Southern Railway Compa ny to int ervene in

support of t

he FAA' s decision.
II.
A court of a

ppeals reviewing a petition fo r judici al review of an orde r of the FAA "has excl

usive jur isdiction to affir m, a mend, modif

y, or set aside any pa

rt of the order." 49 U.S.C. § 46110(c). In review ing an order unde r this section, the court may consideronly those objec tions m ade in the a gency proceeding, unless t

here wa s a reasonabl e basis for not m aking the objection earlier. See id. § 46110(d). The stat ute mandates that th e age ncy's findings of fact are conclusive as long as they ar e supported by substant ial eviden ce. See id. § 46110(c). Because § 4611 0 does not specific ally

enunciate astandard f

or reviewi ng the FAA 's nonfac tual deter minat ions, we turn to the Administrative Procedure Act (A PA) for the appropri ate standa rd. See 5 U.S. C. § 70 6. The A

PA presc ribes that

an agency

action is un lawful a

nd may be set asi de if it wa s "arbitrary, capricio us, an abus e of discretion, or otherwis e not in accordance with law." Id. § 706(2 )(A). In sum , while our factu al inquiry on the7

record must be "search ing and careful," o ur scope of revie w is quite narrow; we are "not empow ered to sub stitute [ou r own] judgment for th at of the age ncy." Citizens to Preser ve Overt on Park, Inc. v. Volpe , 401 U.S. 4 02, 4 16 (1971). We det ermi ne mere ly "'wheth er the decision w as based on a consider ation of the re levant fa ctors and whether there has been a

clear error of judgm ent.'" Downer v. U.S . by

and Throu gh U.S. Dep 't of Agric. and Soil Co nservation , 97 F.3d 999, 1002 (8 th Cir. 19 96) (quoting Marsh v. Oregon N atural Re s. Council , 490 U.S. 360, 3 78 (1989 )).
The petitione rs essentially challenge two agency dec isions. First, they challenge the FAA's decision to categorically exclude the proposal to close the airport from the requirem

ent of pre paring an environm ental asse ssmen t under the

National Environmental Policy

Act (NEPA), 42 U.S.C. §§ 432 1-4370d (1994). Second, they challenge the FAA's decision to grant Kansas City a r elease from its federal obligat ions to maint ain the pro perty as an airpo rt.
A. Cat egorical

Exclusion
We begin with the environmental challenge. The Friends and Gra ndview contend that the FAA abused its discr eti on b y not taking a hard look at the environmental impac t of

its decis ion as requ ired by NEPA. See 42 U.S.C. § 4332(2). NEPA requires federal

agencies taking m ajor fe deral ac tions that si gnificantl y affect th e qua lity of the human environment to prepare a detailed environmental im pact statem ent considering the effe cts of and a lternativ es to the propo sed action

. See id. § 4332(2)( C). The environm enta l impact statem ent requirement ensures that agencies

" take a 'har d look' at t

he environm

ental conse quences of

a proje ct before

taking a maj or action." Friends of the Boundary Waters Wil derness v. Dombeck , 164 F.3 d 1115 (8t h Cir. 1999 ) (internal quotati ons omitted)

. N EPA's Council on E

nvironm ental Qualit y (CEQ) has promulgated regulation s to provide federal agencies with guida nce for c omply

ing with NEPA 's requir

emen ts.8

See 40 C.F.R. §§ 1500-1517. The regulations encourage agenci es t o document an environmental asse ssmen t, brief ly prov iding the agency

with suff icient evi dence to determ ine whether

the propose d agency

action has no signific ant im pact on the en vironm ent

or whether the action has a sig nificant impac t that requires t h e p repa ration of a detaile d environ mental impact statement u nder NEPA. See 40 C.F.R. § 1508.9. T

he regula tions also provid e that age ncies m ay ca tegorica lly exc lude certain typ e s of feder

al activit ies from this case- by-ca se environm ental asse ssmen

t review. See id. § 1500.4(p) (requiring agencies to reduce paperwork in part by using categorical exclusions to define c ategorie s of actions that do not ha ve a signif

icant impac t on the envir

onment and are t herefore exem

pt from NEPA 's requir

emen t t o prepare an environmental impact statem ent); § 1507.3(b)(2)(ii) (req uir ing agencies to develo p specific criteria for i dentifying c ategorical exclusio ns).
The CEQ re gulations de fine cate gorical e xclusions as "a categ ory of actions which do not individual ly or cumulatively have a significant eff ect on the human environment

and which have been found to have no such effect in procedures adopted by a Federal agency in im

plementation of thes e reg ulations." Id. § 1508.4. For actions falling w ithin a cat egorical exclusion, neither a

n environ m ental asse ssmen

t nor an environm

ental im pact state ment i s require d. See id. The reg ulations require that an agency

must also consider

exceptions to the cat egorical exclusions by

listing "ext raordinar y

circumstances in which a normally excluded action may have a significa ntenvironmental eff

ect," th us requiring the preparation of an environmental assessment. Id.
Consistent

with these

CEQ re gulations, the FAA promulgated a li st of categorical exclusions a

nd charac teristics amoun

ting to extraord

inary circum stances, which are set f

orth in the A irport Environm ental Ha ndbook , FAA Order 5050 .4A. ( See Petitione rs' App. at 900-903.) The federal release of airpor t land is lis ted in the Handbook

as an ac tion that is categor ically excluded f

rom t he requiremen

t of preparin g aform al environm ental asse ssmen

t. ( See id. at 901; FAA Orde r 5050.4A,9

¶ 23 (10).) Relevant factors l isted as ex traordina ry circum stances in clude any action that is likely

to (1) have a n effect

on propert

y prote cted under

the Histor

ic Preserv ation

Act, ( 2) be highly

controver sial on environmental grounds , (3) behighly controversial with res pect to the availa bility of relocation housing, (4) cause a significa nt increa se in surfac e congestio n, or (5) have a signific ant im pact on noise levels or air quali ty. (Petitioners ' App. at 902; FAA Ord er 5050.4A, ¶ 24 .) FAA Order 50 50.4A is a

n interpre tive agenc y orde r. Bec ause it does not contain agency rulings reached

as a result of adj udicatory adversar y proc eedings or form al rule makin g, it is not entitled to Chevron -type deferen ce, but th e order i s neverthe less acco rded respect by the courts t o the exten t it has th e power to per suade. See Christensen v. Har

ris County , 120 S. C t. 1655, 16 62-63 (200 0); Skidmore v. Swift & Co. , 323 U. S. 134, 1 39-40 (1944) ; see also Drake v. Honey well, Inc. , 797 F.2 d 603, 6 07 (8th Cir. 1986 ) (statin g that inter pretive r ules provide

guidance t o parties a

nd "carry n o more

weight on j udicial re view than their inhe rent pers uasiveness com ma nds") (internal quotations omitted). The FAA' s Airport Environmental Handbook, "while not

controllin g upon the cou

rts by reason of [its] authority , do[es] constituteabody of

experien ce and inf

orme d judgm ent to whic h courts an d litigants may properly resort for guidance." Skidmore , 323 U.S. at 140

. The petitioner s do not argue that the federal

release of airpor t land is an action that can no t b e ca teg ori cal ly ex clu ded fro m th e environm ental asse ssmen

t requirem ent, and we ha

ve no reas on to doubt the agency 's inform

ed decision

in this matter. Instead, they c ontend t hat the FA A faile d to adequat ely c onsider al l of the relevant extraordinary circum stances that would prevent the use of the categ or ical exclusio n in this particula r case. The FAA documented

its categorical exclusion evaluation in this case in which itconsidere d and disc us sed the rel evant ext raordinary circu mstances list ed in FAA Order 5050 .4A. Specifically, the FA A considered the effect

of the prop osed action on property

subject to the National HistoricPreser vation Ac t, the potential noise , air3 We do not reach the petitioners’ allegations that the FAA ’s deci sion to rele ase the property was preo rdained an d the out come predetermined. Our r eview of th e extra-record

affidavi ts relied on by the petitioner s in an atte mpt to prove bad f aith or improper motive s on the par

t of the FA

A convince s us th at theydo not rise to the level of the “‘ strong show ing of bad f aith or im proper be havior’ ” which w ould perm it us to look behind th e decision and overco me the presumption of regularity acc orded agency action. Newton County Wildlife A ss’n v. Rogers , 141 F.3 d 8 03, 807 (8th Cir. 1998 ) (quoting Overton Park , 401 U.S. at 420 ). 10 qua lit y, and

water q uality consequenc es of the action, its effect on farmlands, whether t he acti on was highly controversial on environmental grounds, its effect on the natural environment, the availa bility of reloca

tion housing, th e potential c omm unity disruption, the cum

ulative im

pact of the

action (in cluding the p roject 's effe ct on air quality and surface traffic congestion), and other r elevant a spects like ly to be at issue with this proj ect. The FAA conc luded that based upon it s evaluati on of the likely impac ts of the prop osed action , no extra ordinary circum stances e xisted to preclude a categorical exclusion of this action fr om the enviro nment al assessm ent requir emen t. ( See Petitioners' App. at 31.)
We review an

agency's determ

ination that an action falls within a categorical exclusion under the arbitrary

and capri cious standard

. See Alaska Ctr. for the Env't v. United St a tes Fores t Serv. , 189 F.3d 851, 857 (9th Cir. 1999). The Friends an d Grandview contend

that the F AA act ed arbitrarily and capri ciously

in determ ining the categorical exclusion a

pplied, a sserting th at severa l extr ao rdinary circum stances required the FAA to take a

closer look by completing an environmental asse ssmen t. We cons ider eac h challenge d extraor dinary circum stance in t

urn. 3 1. Highly Controver sial on Env ironm ental Gr ounds
The petitioner s assert t hat the re lease of airport pr operty was highly co ntroversi al on environmental grounds. The FAA's order states that a proposed11

action is highly

controver sial on environmental grounds (thus requiring the prepara tionof an en v ironm ental asse ssmen t) when th e action is opposed on e n vironmental grounds by a governm

ent agency

or a substa

ntial num ber of the persons af

fected by the action . ( See Petitione rs' App. at 902; FAA Orde r 5050.4A, ¶ 24 (b).) The FAA fou nd no sig nificant e nvironmental opposi tion.
The petitioner s assert t

hat the FA

A com pletely ignored the f

axed letter from the Mayor

of Grandview cha llengin g the actio n on envi ronmental gro unds. The FAA received no governm

ental environmental oppositi on until it re ceived th e may or's letter on the very day it issued its dec isio n and its supporting extraordinary circumstances evaluation. Regardless of any dispute over the timing of when FAA official s actu ally r

eceived t he letter during that

day, we consid er this one letter of governm ental opposi tionto be too litt le, and f ar too late in a public proceeding that had been ongoing for appro ximat ely tw o year s. Thus, the FAA did not act a

rbitrari ly or capricio usly by

concluding t

hat th e re was n o governmental opposi tion to the action.
Concernin g citizen opposition, the FAA noted that it received 65 citizen letters opposing the project, of which only approxim ately 20 ex

pressed environmental concerns. Even cons idering al l of the opposing letters , howeve r, the FAA concluded that this num

ber was insuffici ent to constitute substa nti al opposition on env iro nme nt al grounds where the popul ation of the area m ost affec ted (the comm unities of Belton and Grandview) ex ceeds 40,0 00. The agen cy det ermi nation that 65 letters opposing the project (most of which did not voice environmental c oncern s) did not consti tute a subst antial con troversy on environm

ental groun ds is not arbit rary on this reco rd.
The petition ers argue th e FAA ignored evi dence tha t, although

the residents of Kansas City a s a whole v oted by referendum to pass an ordi nance aut horizing the

city to proceed with the proj ect, the maj ority of voters in wards c losest to the airportvoted12

"no," and the cit

izens of Belton an d Grandview, the areas most affected, had no vote. The petitioner s assert t

hat thesecircumstances reflect a concern that the project was highly controversial on enviro nmental groun ds. We disagree. A lthough the c itizens of Belton and

Grandview have no v ote on ordina nces aff ecting p ropert y wit

hin the City of Kansa s City , four

of the thir

ty-f ive public m

eetings w ere held

in Grandview in an effort to give its citizen s an o pportunity to voice the ir concer

ns about the project , yet no substantial environmental opposi tion arose . Also, those Kan sas City residents who voted " no" for the projec t did not provi de any reasons e xplaining the ir vote and evident

ly did not write letters to the FAA inform ing it of any environmental concerns. Th us, the FA A did not ac t arbitra rily b y ignor

ing the evidence of "no" votes in wards c losest to the affect ed area and the citizens of Belton and Grandview certainly were no t isolate d from the proceed ings.

2. Com munity Disruptio n and Surf

ace Traffic
The petiti o ners contend that the FAA ignored or improperly discounted evidence indicating that a subst antial com munity disruption w as likely

and that the acti on wou ld cause a

significa nt increa se in surface traf fic conge stion. Th is contention

lacks mer

it. The FAA's categori cal exclu sion evalua tion did consider t

he potential for com

munity disruption a

nd added sur face traffic, concluding in relevan t partthat the pr

oject w ill not advers ely a ffect lo cal traf fic m ovementand that planned highway improvements will more than adequa tely handle thetrafficgenerate d by the intermodal faci lity.
The FAA found that

the Missouri Department of Transportation (MDO T) has consider ed the p roposed intermodal facilit y in its design for

improving Route 1 50, Route 58, and the

intercha nges of I- 435, I-470 , and Route 71. MDOT

reporte d by letter that the pla

nned roadw ay and

intercha nge improvements will acc omm odate the additional truck tra ffic from the facility , even at its "full build out." ( Petitione rs' App. at55.) The Environmental D ocu ment ation Repor t submi tted by

Kansas C ity, and4 A lift is ac compl ished by an overhead crane that either takes a truck trailer off the ground and pl aces it on t he rail car or vi ce versa. ( See Petition ers' App. at 64 2.) Lifts are the means by which revenu e is generat ed for the fac ility. 13 consi dered

by the FAA, notes that using railcars to carr y more than one truck container actually results in fewer trucks on the ro adway s. ( See id. at 615.) This reportnotes that "[b]ased on traffic studies to date, the intermodal fa ci lity wi ll contribute

less than 1% increase i n traffic" to the area. ( Id. at 616.) The report concluded that even in the worst ca se scenar io, the ad verse tra ffic ef

fects of increased truck and rail t

raffic would be offs et b y new highway construction and improved intersec tions. A n ag enc y may rely " on mi tig ati ng mea sur es t o be und erta ken by a third part y" in making its finding of no sign ificant impact. Audubon Soc 'y of Cent. Ark. v. Dailey , 977 F.2d 42 8, 435-36 (8th Cir. 19 92).
Add iti ona lly, the FAA

found that n o additional train tra ffic wo uld occur f or five years, after which the train traffic could be expected to increase 16% over t h e next twenty years. The K

ansas City Southern Railway Company indicated that even assum ing a10% grow

th rate per y ear, no additional tr ains would be required in the first f ive ye ars o f operation because the present trains are currently running under cap acit y. ( See Petitione rs' App. at 649.) Based upon t hese studies and the opinions of expert co nsultants, the FAA found that the anticipated increase in train and truck trafficwill not si gnificantl y affect the movement of local traffic or alter any planned development. Th e record sup ports th is findin g. The petitioner s argue tha t the FAA ac ted arbitr

arily by re lying on

docum ents that underestimate the capacity of the facility, which is m easured in "lifts per

year." 4 The petitioners argue that the FAA estimated only 120, 000 lifts pe r yea r, y et plans to develop the faci lity sho w that up to abou t 500,000 lif ts per y ear wil l be perf

orme d, which represe nts only

about 70% of

the facility's capacity . The petitioners assert that 100% growt h is reason ably foreseeabl e and shou ld be assu med.14

We are not in a

position to que stion the veracity of the grow

th estim ate. The Environmental Docum entation Report and i ts supporting exhibits indicate an initial estim ation

of 120,000 lifts peryear , but the report also assum es a twe nty-year grow th pattern, stating tha

t "Kansa s City

Southern i s hoping to gro w the fa cility to a b out 500,000 lifts a year." (P etitioners' App. at 641.) In the next sentence, the report states that "[t]he

goal factor is about 10% a year ." All o f this infor

matio n was cont ained in the Environmental Docum en ta tio n Re por t, wh ich was p rop erly b efo re th e ag enc y. The FAA's findings ar

e supported

by this documentatio n, and the FAA has articulated a rational connection between the facts and the conclusions it made. The FAA was entitled to rely on expert documentation provided in the rec o rd, and we cannot say that the agency’s findings on this point lack substantial evidence to suppo rt them.
T he petitioner s argue tha t the FAA 's relia

nce on the E

nvironm enta l Docum entation

Report, which con cludes that there is n o significa

nt impa ct from

the proposal, is arbitrary a

nd capric ious becaus e it was p rovided by Kans a s City, a proponent

of the proj ect. They al so question the source

of inform ation under

lying th e MDOT's projec tions of intermodal traffi c. TheFAA ur ges that it in depe ndently reviewed the enviro nment al consulta nts' analy sis and concur

red with the conclu sions reached

. The FA

A also ass erts that it is allow ed to rely on the opinio n of a state governm ent

agency. We agree with th e FAA. Our duty is m erely to ensure that the agency considere d the proper

factors and made no clear er ror of judgment. See Marsh , 490 U.S. at 378. "O nce the ag ency c onsiders the proper factors and m

akes a factual determination on whether t he impacts are si gnifican t or not, that d ecision implicates substantial agency expertise and is entitled to deference." Alaska Ctr. for the Env't , 189 F.3 d at 859. "When s pecialist s express c onflicting views, an agency must have discretio n to rely

on the rea sonable opinions of it s own quali fied expe rts even if, as a

n original m

att er, a court

might find con trary views more persua sive." Marsh , 490 U. S. at 378. We conclude that the FAA was entitled to rely on expert consultants , including the opinions of

other governmental agencies, especially where15

the evidencedeals with scien tific judgments

. See United States v. Grand Labs., Inc. , 174 F.3d 9 60, 964 (8 th Cir. 199 9).
3. Noise Pollution
The FAA fo und "that m

ost of the D

NL 65 dB noise co ntour resulting from the intermodal facility's train a nd truck traffic w ill remain well with in the f acility's boundar ies." (Petitioners ' App. at 32.) Th e sym

bol DNL (or Ldn) represe nts the "[d]ay-night

average sound level, " which is a decibel mea surem ent of the a

verage sound level for a 2 4-hour pe riod. 14 C.F.R. § 150.7. The FA A has determined that all land uses are consideredto be com patible with nois e levels th at are less th an DNL 65 dB. Id. § A150.101 (d). A irports ar e require d to develop n oise exp osure map s showingcontour lines of DNL 65, 70, and 75 dB. In areas where t he noise le vel is DNL 65 dB or gre ater, l and uses m ust be identified and

t heir com

patibility determined.
To this end, the F AA has de veloped a t able indicating appropria te noise le vels that can be tolerated for

different land

u ses. Th e noise sen sitive are a neares t to the proposed facility

is the Belton Com

munity Golf Course, which is 80 0 feet aw ay fr om the noise sourc e. Theland use ta ble indica tes that a golf cou

rse can t olerate n oise levels of DNL 65-70 dB

. See 14 C.F.R. Pt. 150 , App. A, Tab le 1-La nd Use Compa tib ili ty. The study indicates that the ne arest poin t of the golf

course is within the 65-70 dB contour lines of the facility. The nearest residence is located over 2000 feet away , which i s wellaway from the DNL 65 dB contour lin e even unde r the full build-out scenario. Ac cordin gly, t he FAA concluded t

hat the pro

ject w ill not significa ntly increase noi se in any noise sensitive areas, and therefore no further ana lysi s was nec ess ary. The petitioner s contend t hat the u se of an unr

easonably low num

ber of expectedlifts adversely affected the noise study. We disagree. The r ecord indicates16

that the noise st

udy inc ludes full c alculatio ns for a full build-out scenario, as well as calculat ions based on the

120,000 lif

t estim ation. The Enviro nment al Documenta tion Reportspecific ally t ook into a ccou nt the full build-out sc enario, providing full calculat ions for a full b uild-out of the facil ity. The study indicated

that resulting noise levels were well below acceptable levels. T he full build-out calcu l ations indicate a DNL 70 dB in the worst-c ase scena rio. Additionally , the study indicates that "the inter

modal facility only ge nerates n oise in a localized and limited area (300 to 700 feet) adjacent to the facility, while the airport generates noise pat tern s extending over 5,000 feet away ." (Pe titioners' App. at 810.) Th ere is no indication that the FAA ig nored evi dence relev ant to the noise impact o f the facili ty.
The petitioner s also asse rt that the FAA i gnored the possibility of continued a irport use of the fa cility . To the contrary , the FA

A addres sed the pote ntial noise impact fro m c ontinued useof the fa cility as an air port as a c umula

tive im pact but concluded that while

there is a possibility of future airport development at this site, there is no proposal reasona bly foreseeable at this tim e. Furthermore, any future airportplans woul d be subje ct to appropria te environmental rev iew whe n proposed. Thus, thi s possibility

is an insufficient basis on which to find that the FAA 's action at this ti me was arbitrary.
The petitioner s' remaining contentions are base d in large p art on the o pinion of their own expert, which

was not m

ade a par t of the adm inistrativ e record . Throug h a motion to this cour

t, petitio ners soug ht to supplem ent the re cord with

letters a nd expertopinions that were not before the agency, in order to s how that the agency overlooked substantial

environmental issue s and rele vant fact ors. W e are not in a position to substitute

our own j udgmen

t for that of the agency by c onsidering expert testimony that

was not made a part of the adm inistrativ e record . "[W ]hen a l itigant c hallen ges an agency

determ ination on gr

ounds that, in essence , allege that the agency's expert review was i ncomplete, inconclusive, or inaccurate, the grea t er degre e of deferen ce expre ssed by th e ar bitrary and cap ricious s tandard is appropri ate."17

Greenpeace Action v. Franklin , 14 F.3d 132 4, 1331 (9th Cir. 1992) (altera tions, quotations, and citati ons omitted). Once w e determ ine that an

agency 's discre tion is truly infor med, we mu st defer to t hat informed di scretion. See Marsh , 490 U.S. at 377; Greenpeace , 14 F.3d at 1332; see also Newton County Wildlife A ss'n v. Rogers , 141 F.3d 803, 80 8 (8th Cir. 1 998) (not ing that our inqu iry ends when we are satisfied that the agenc y consi dered all of the inf orma tion availa

ble at the time of its decision).
Our review of the record indicates that the FAA considered all relevant factors and available evidence re lating to the nois e impact of the faci lity. Th e FAA's conclusions are base d on substanti al scienti fic data, and no t on mer e specula tion. NEPA does not require cou rts to reso lve disag reements among exper ts. See Greenpeace , 14 F.3d at

1333. "[T ]he re cord in this case re veals no complete failure to consider crucial factors." Id. Accordingly , we de ny the p etitioner s' mo tion to supplem ent the re cord.
In a noise-related argument, the petitioners contend that the noise impac t of the facility on the near

by Belton Com

munity Golf Course w ill interfe re with enjoym ent of the golf course so as to amount to a "use" of the property. Se ction 4(f) of the Departm ent of Transportation Act provides in relevant part that the "u se" of publi cly ownedland or a pu

blic park m

ay be approved onl

y if there is n o feasible

alternat ive and th e pr oje ct i ncl ud es a ll po ss ib le p lan ni ng to mini mize th e re su lt in g h arm. See 49 U. S.C

. § 303(c). The FAA's E nvironmental Handbook provides that an action that is likely to use Sec tion 4(f) l ands is an e xtraor dina ry circum stance requiring an environmental as sessment. ( See Petition ers' App. at 90 2; FAA Order 505 0.4A, ¶ 24(a).) As alre ady not ed, the FAA fo und that the nearest part of the golf course lies about 800 feet f

rom t he boundary

of the prop osed faci lity. The full build-out w orstcase scenario shows a D

NL 70 dB c ontour line encom passing prop erty within 700 feet of the noise source and a DN L 65 dB con tour line e ncompa ssing proper ty wi thin 700 to 1400 fe et f

rom the noise s ource. (Petit ioners' App . at 834.) The FAA determined

that the gol f course i s a com patible la nd use with

the facilit y's DNL 65-7018

dB level of noise. The record supports the FAA's finding that the proposed act io n will not p hysically take or " use" Sectio n 4(f) prop erty. 4. Air Quality
FAA Order 5050.4 A, par agraph 24 (f), states that an extraordinary circumstance exists where a government action has asig nif ican t imp act o n ai r qu ali ty. ( See Petitione rs' App. at 902.) The FA A consider

ed the intermodal facility's potential effect on the air and determined that the resulting air quality im pact s are not significa nt. Since its initial det ermi nation, how ever, th e FAA h as identif ied a mathem atical miscalculation in its original analysis, which result ed in an underestim

ate of the air quality impac ts. We perm itted the FAA to correct the record calculat ions based upon a ccurate

inform ation. The new cal culations provided by the FAA continue to indicate t hat the air quality effect s of the new

facility do not rise to a signifi cant level

. The petitioner s contend tha t the FAA

overlooked

a signific ant im

pact o n air qual ity becaus e the s tudy was based on un deres timated traffi c assu mption s. We concluded earl ier t hat the traf fic a nal ys is wa s not seriou sly unde restim ated. T he petitio ners also point to the opinion of their own

expert f or their a ssertion th at the FAA's air quality analy sis is flaw ed. W e have deni ed their a ttemp t to supplement the record with this e xpert opinio n. Also, th ere is no m erit to the contention that an EIS must be prepared whenever qu alified ex perts dis agree. See Greenpeace , 14 F.3d at 1335. We refuse to engage in a de novo review of scientific data and opinions that are within t he experti se of the ag ency. 5. Histor ical Pro perty
The Friends assert t hat the facility will have an adverse effe ct on a historical pro per ty. Although one

building on the prope rty is potentiall y eligi ble for pr otection19

underthe National Register of Historic Places, the FAA deter mined that it is ou

tside of the area of potential e ffect be cause it is not within t he boundary

of the lea se, and any impac ts on histori cal prope rty resulting fr om the projec t will not e xtend bey ond the lease line

boundaries . We see nothing arbitrary in th is decisi on. Also, th e FAA c o nsidered the fact

that the a irport wa s name d after t wo local p ilots killed

during World War I and the Korean W

ar, but i t concluded that this does not make the airport eligible for protection as a historic site. The FAA considered the relevant

factors, and we will not d isturb it s findin g of no sig nificant i mpact.
6. Reloc ation Housing The FAA's Airpor

t E nvironmental Handbook states that an extraordinary circumstance exists if t

he action i s "likely

to be highly c ontroversi al with respect to the availabil ity of adequat e relocatio n housi ng." (P etition ers' App. at 90 2; FAA Order 50 50.4A, ¶ 24(d). ) The FA A found thatthe interm

odal faci lity pr

oject is not controversial with res pect to the availabil ity of

relocati on housing because i t does not involve any housing issues and will no t require th e relocatio n of any residen ts. The FAA al so considered that the action wi ll require

the closure of the f

ixed base operation and the han gar faci lities at t h e airport. The FA

A found tha

t suffici ent g eneral aviation facilities are available in the area, although the hangar s pace i s inadequate. In spite of

the inadeq

uacy o f availab le ha

ngar space, t

he FAA did not alter its finding t

hat the ac tion is not high ly cont roversia l on the issue of r elocation housin g. The Friends c o ntend that t he FAA defined a dequate relocation housing too narrowly by

ignoring the inadequacy of available hangar space for airc raft tha t will needto be reloc ated. T hey ci te 42 U.S .C. § 460 1(6)(A) (1994 ), of the Uniform R elocati on Assistance and Real Property Ac quisition Policies Act of 1970, which defines "displaced pers on" as " any p erso n wh o mov es fr om rea l pr ope rty, or moves his personal p roperty

from real pro perty " as a dire ct result of an agen cy ac tion. The20

Friends conte nd th at the age ncy' s interpre tation of th e statute a s involving only housing issues, a

nd not also displacem

ent of personal property , reads the statute too narrowly.
In the contex

t pr es ented here, we d

isagree. The FA

A's orde r is specif

ically concerned

with the environm ental im pact of ag ency actions tha t relocat e people or businesses. We do not believe the FAA purports to implem ent the Uniform Reloc ation

Assistanc e and Real Propert y Ac quisition Pol icies Ac t in its hand book

. Instead, the FAA

is implementing the policies of NEPA and has disc retion in do ing so to decide t hat the disp lacem ent of peopl e from their housing has a signi ficant impact on the human environm ent, whi le the re location o f airplane s does not. Nothingin the handbo ok prevents the pilots f rom ob taining any federalassistanc e to which they m

ay be entitled und er the U niform Relocati on Assis tance and Real Property Acquisition Policies Act due to the r eloc ati on o f th eir p erso nal pro per ty. The FAA w as n ot arbitrar y in dec iding that a

ny diff iculty experien ced in obta ining hangars for relo cate d airplane s does not cr eate an e nvironm ental conc ern requiring the prepara tion of an environmenta l assessment i n this cas e. 7. Railr oad Constru ction
The Friends also contend

that although the agenc y m ay pro perly categori cally exclude the rele ase of ai rpo rt p rop erty, it may n ot categori cally exclude th e constructi on of

a railroad track. Howeve r, the F AA did not categori cally

exclude th e construc tionof a rail

road trac k. The F AA properly c onsidered t he potenti a l environmental impact that m ight result fr om the pr oposed fac ility. Whethe r the const ruction

of track is consider

ed a rail road line s ubject t o the jur isdiction of th e Surface Transporta tion Board (STB), see 49 U.S.C. § 10501(b) (Supp. IV 1998), or an industrial , team , switc hing, or si de track t hat is not w ithin the STB's jurisdic tion, see 49 U.S. C. § 1 090 6 (Supp. IV 1998), is a m atter to be considere d in the fir st instance by the STB. We agree with the F AA that this question is not properly before21

us at t his tim e. It is enough that t he FAA considere d the rele vant resul ting environmental factors and deter mined them to have no si gnificant impac t on the environment.
B. TheDecision to Releas e the Federal Obli gations
The Aircra ft Owne rs and P i lots Association (AOPA) challenges the FAA's authority to grant a relea se from

the feder

al obligati ons that were im posed upon Kansas City b y rea son of the S urplus Pro perty Act and the Airpo rt Im

provem ent

Act. BecauseAOPA

did not make this challenge before the agency and has not proffere d any reasonable basis for not making the objec tion at that time, we will not consider the argument here. See 49 U.S. C. § 46110(d) (stating that the court reviewing an FAA order

may consider o nly thos e objec tions m ade in the a gency proceeding, unless there was a re asonable ba sis for not m aking the obj ection

earlier ); see also Northwe st Airlines , Inc. v. FAA , 14 F.3d 64, 73 (D .C. Cir. 19 94) (notingthat even o bjection s challengin g the agenc y's a uthority to act m ust be rais ed before

the agency

in the fir st instance ).
AOPA also challenges the decision to release the federal obligat ions as arb itr ary, capricio us, and con trary to law. In this case, Ka nsas City sought rele ase from its feder al obligati ons to ma

ke the air port avail able to the

public for aeronautical use. The FAA granted the request, finding in its am ended and restatedmem orandum of agreement that "the City has subsidized the Airport with revenue f rom the other airpor ts owne d and operated by the City" and that "the City has identified an alternat ive use for the Property that will generate additionalrevenue for the regional aviation system and permit aviation funds now used to subsidize

Richards -Gebaur

to be used for future improvem ents" at Kansas City's other air ports. ( Petitione rs' App. at 879.) A dditionally , the m emorandum specific ally f inds:22

[I]n considera

tion of the n

umber of public- use general aviatio n airports in the Kansas City area; the fac t that at least three of these airports are within conve nient driving distance of the ar eas serve d by Ric hardsGebaur; the fact tha t the spo nsor of Ric hards-Ge bau r Airport, Kansas City, operates two other

airports serving the Kansas City area; the fact that the rem

aining value

of Airpor

t I mpro vement Program (AIP) investm ents in Richards-Gebaur recovered from the Ci ty may

be reinvestedin other ge neral avi ation capa city pr ojects in the Kansas C ity area; the fact that the p ropo sed redev elopm ent of the P roperty will pr oduce sub stantial revenue for aviation de velopm ent in the K ansas City airportsys tem; and the fact that a significant part of this revenue stream will be com

mitte d to general a

viation proj ects in

the Kansas City airport sys tem; the FAA finds that highly unusual circumstances exist that would sup port a finding that

the rele ase and cl osure of th e RichardsGebaur Airpo rt would res ult in a ne t benefit t o aviatio n . . . ." (Petitioners' App. at 880.)
The statute pr

ovides that the Secretary of Tr ansportati on "ma

y wa ive" the conditions of a surplus property gift if the Secretary

decides ( 1) that "th e propert y no longerserves the

pu rpose for which it w as given," or (2) tha t "the waiver wil l not prevent carry ing out the purpose for whic h the gift w as ma de and is ne cessary to advance the civil

aviation in

terests of the United States." 49 U.S.C. § 47153(a)(1). The Secretary also "shall waive a term under p arag raph (1) o f this subse ction on ter ms the Secr

etary considers necessar

y to protect or a dv anc e the civil aviation interests of the United States." Id. § 47153(a)( 2); see also 14 C.F.R. § 155.3(a)(1), (2) (restating the statu tory grounds that may be the basis for a release). AOP A contends that the FAA f

aile d to satisfy the standards of the Surplus Property Act because nowherein its findings did the FAA state t hat the waiv er was "necess ary," as required by the langua ge of the st atute. See 49 U.S.C. § 4715 3(a)(1)(B).
We initially

rejec t the FAA 's asser

tion that A OPA did n ot raise t h is plai n lan guage objection before the agency. T he argument m ay not have bee n made a s23

thoroughly

as it is in t

he petition for review, but A OPA spe cificall y quote d the language of the statute in a letter to the FAA dated Septem ber 21, 199 8, com

plaining that the m emorandum of agree ment " does not conc lude or explain how

the rele ase 'is NEC ESSARY

to advance the civil aviation interests of the United States .' " (Responde nts' App. at 75 (quot ing 49 U.S .C. § 471 53(a)(1) (B), e mphas is in original)). We conclude that this com plaint to the

agency sufficie ntly preserved t

he plain language argumen t asserte d here. Thus, w e move on to conside r whethe r the agency's interpretation of the statute in making the release was "arbitra ry, capricio us, an abuse of di scretion, or otherw ise not in ac cordance with l aw." 5 U.S.C. § 706(2)(A).
As AOPA com

plains, nowhere in the mem oran dum of a greem ent or in the actual letter releasing t

he property does the FAA specific ally s tate that the relea se of the Richards -Gebaur Airport p roperty is "neces sary to advance the civil a

viation interests of the Uni ted State s," as i t is worde d in the stat ute. Inst ead, the mem orandum of agree ment l ists all of the reasons w

hy a release is beneficial and after considerin g them, concludes, in the langu age of an F AA orde r, that the relea se "would result in a

net benef

it to aviation ." (Petitio ners' A pp. at 880. ) For the followin g reasons , we do not be lieve thi s to be fatal to the FAA's de cision.
The regulatio n imple menting the statu te quotes th e statutory

language i

n large partwithout spe cificall

y inter pretinghowthe FAA

will determine

when a release is "ne ces sary" to protect

or advance avi ation in terests. See 14 C.F.R. § 155.3(a)(2). I n the FAA's interpre tive order , Order 5190.6A e ntitled Airpor t Compliance Requirem ents, the FAA states that "[a] total relea se, permitting the sale and disposal of real pro perty

acquired for airport pu

rposes unde r the Sur

plus Proper

ty Ac t, shall not be grante d u nless it ca n clearly be shown th at the sale

of such pro perty

will benefi t civil aviation." (Petitioners' App. at 1040.) The FAA 's general policy regardin g the rele ase of sur plus proper

ty all ows proper

ty to "be rele ased for s ale or disposal upon a dem

onstration t

h at such disposal will produce an equal or greater24

benefit (to the air

port or a nother publi c airport ) than the c ontinued re tention of t he land." ( Id. at 1 040-4 1.) The FAA de termined that su ch a rele ase eff ectively authorizes "the conve rsion of a real property

asset into a

nother for m of a sset (cas h or physical improvements) whic h better serves the pu rpose for which the real property was initially conveyed." ( Id. at 1041.) The FAA's order states that an airport owner reques ting a relea se mus t justify the reque st, and co uld do so by "showing th at the expectednet proce eds from the sale of

the proper

ty at i ts current market value w ill be required t o financ e item s of airpor t developm

ent and im

provem ent; the ne ed for which is concurred in by the FAA." ( Id. )
Once again we

must c onside r the pe rsuasive f orce of a n FAA or der whic h is not the product

of form al adjudi cation and not a regul ation entitled to Chevron deference. See Christensen , 120 S. C t. at 1662-63. Such deci sions are " 'entitle d to respect,'" but only

to the extent that they have the "'power to persuade.'" Id. at 1663 (quotin g Ski dmore , 323 U. S. at 140) . AOP A argues that the F AA's or der is not persuasive

because i t is contra

ry to t he plain la

nguage of th e statu te. We respectf ully disagree.
We maint ain our long- standing opini on that "[a ] statut e is the com mand o f the sovereig n," and an agency imple menting a statute

may not ignore, or p rovide it s own substitute for, a standard articulate d in the st atute. See Sokol v. Kennedy , 210 F.3 d 876, 880 (8th Cir. 2000). We conclude, however, that the FAA has neither ignored nor provided a substitute for the a rticulate d statutory

standard in this case. I

nstead, the agency

has proper

ly exe rcised its discretio n to add obje ctive cri teria to a id in its applic ation

of the sta

tutory standard. Both the sta

tutory and regula

tory l anguage stat es that a re lease m

ust be "nec essary

to protect

or advanc e the civil

avi atio n interests of the United States." 49 U.S. C. § 47153( a)(2); 14 C.F.R . § 155.3( a). Th e FAA's interpr eti ve order p rovides som e guidance

for the a gency 's deter

minat ion of what is "necessary" to this purpose. It is within t

he FAA's discretio n to determ ine the25

criteri a for

assessing when a release is necessary to protect or advanc e civil avi ation interests within th e languag e of the stat ute.
The FAA's order interprets the statutory and regulatory

standard a s satisfie d so long as t he re leas e of t he p rop erty " can clea rly be shown . . .[ to] bene fit civil aviation ." (Petitioners' App. at 1040.) As earlier noted, this policyallows a release when the conver sion of the r eal prope rty in

to another asset bett er serve s the purpose for which the

real pro perty

was initially conveyed. A contrary interpre tation woul d require the continued us e of airport pr operty in a m anner tha

t does not be st serve th e purpose of the ori ginal gift. We con clude that it wa s reasona ble for the

FAA to determ ine that a re lease providing a net benef it to aviati on is "nece ssary " to advance and prote ct civil av iation wit hin the meanin g of the st atute.
AOPA does not challenge thefactual record sh owing tha t t he closure

of the airpo rt wil l result in a net benefit but challenges the FAA's failure to use the exact statutory language in its memorandum of agreem ent. The FAA counters that it was not required to use the exact statutory language in its findings , citing Ethyl Corp. v. EP A , 541 F.2d 1 , 12 n.15 ( D.C. Cir.) ( stating, " [i]t is well est ablished tha t ultim ate findings do not have t o be expre ssed at all , let alo ne be expressed in the language of the statute") , cert. denied , 426 U.S. 946 (1976). We agree with the FAA that in this instance, where the agency expresse d its findings in the langu age of its interpre tive order, which we have concluded reasonab ly inte rprets the statute , the FA A was not required to quote theexact sta

tutory language in its findings . Desp ite the F AA's failure to couch its f

indings in the

language of the statute, the record persuades us that the airport c losure in th is instance will res ult in a

n otherwi se unavailabl e and significa ntbenefit to aviation

and therefor e is neces sary to advance and protec t the aviation interests of the Unite d States. T hus, the FA A's d ecis ion is n ot a rbi trar y, capriciou s, or contrar y to law.
III.26

Acco rdi ngl y, we deny the petitions for review and affirm the order of the FAA releasin g Kansas C ity fr om its federal

obligations to main

tain the proper

ty for aeronauti cal use. All pe nding motio ns to sup plement the reco rd are denied

. A tru e co py.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.