# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 20

- 1075 September Term, 2020

F ILED O N : J UNE 8, 2021

A RAPAHOE C OUNTY P UBLIC A IRPORT A UTHORITY

, ET AL

., P ETITIONERS

v.

F EDERAL A VIATION A DMINISTRATION AND S TEPHEN D ICKSON

, IN HIS CAPACITY AS
A DMINISTRATOR OF THE F EDERAL A VIATION A DMINISTRATION

, R ESPONDENTS

Consolidated with 20

- 1085

On Petitions for Review of an Order

of the Federal Aviation Administration

Before: S RINIVASAN

, Chief Judge

, W ILKINS and K ATSAS

, Circuit Judges

.

J U D G M E N T

These consolidated petitions for review were considered on the record from the Federal Aviation Administration and on the briefs and oral argument of the parties. The panel has

accorded t he issues full consideration and has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the petitions for review be DISMISSED

.

These consolidated petitions for review present various challenges to the Federal Aviation

Administration’s (FAA’s) approval of the Denver Metroplex plan, which is a set of “changes to air traffic flows during the departure, descent, and approach phases” at Denver International Airport and nearby airpo rts. Draft Environmental Assessment (EA) at 5

- 26

, J.A. 183. Th o se changes are “intended to improve operational efficiency, increase flight path predictability, and reduce required controller

- pilot voice communication

. ” Finding of No Significant Impact ( FONSI) at 9, J.A. 944.

The Denver Metroplex plan is part of the FAA’s effort to comply with the Next Generation Air Transportation System (NextGen), “a mandate from Congress to modernize the nation’s air

-2

traffic control system.” City of Phoenix v. Huerta , 869 F.3d 963, 966 (D.C. Cir. 2017) ; see, e.g. , Vision 100

— Century of Aviation Rea uthorization Act, Pub L. No. 108

- 176, §§ 709

– 710, 117 Stat. 2490, 2582

– 85 (2003 ). “Among other

. . . technologies that the [NextGen] legislation promotes,”

NextGen “directs the FAA to make greater use of RNAV”

— that is, automated satellite technology onboard aircrafts, as opposed to ground

- based air

- traffic control

— “and other such ‘performance

based navigation procedures’ at the nation’s thirty

- five busiest airports

, ” including Denver

International. Howard Cnty. v. FAA , 970 F.3d 441, 443 (4th Cir. 2020) (quoting FAA

Modernization and Reform Act of 2012, Pub. L. No. 112

- 95, § 213, 126 Stat. 11, 46

– 50). Notably, the air

- traffic

- control pr ocedures that make up the Denver Metroplex program do “not increase the number of aircraft operations in the DEN Metroplex airspace.” FONSI at 9, J.A. 944.

The petitions for review before us are brought by six entities: the Arapahoe County Public Airpo rt Authority (also known as Centennial Airport), the City of Greenwood Village, an air

charter company named Mountain Aviation, Inc., and three Colorado counties

— Gilpin, Arapahoe, and Douglas Counties

. Petitioners’ claims fall into four categories. First , all petitioners contend

that the FAA , in discharg ing its duties under the National Environmental Policy Act (NEPA)

, insufficiently considered various aspects of the Denver Metroplex plan ’s impact on the surrounding area. Second, the y allege that the age ncy did not “encourage or truly permit community involvement in the Metroplex design process .” Pet. Br. 45 . Third, Gilpin County alone claims that the agency failed to meet its duties under the National Historic Preservation Act (NHPA) . And finally, all petitioners argue that Congress, by mandating that the FAA perform

certain studies in connection with NextGen, meant for the agency to suspend any further action on

NextGen projects until those studies were completed.

We do not reach the merits of petitioners’ arguments because we conclude that petitioners

have failed to demonstrate their standing to bring their claims

. To establish standing, petitioners must make the requ isite showing of injury, causation, and redressability. Spokeo, Inc. v. Robins

, 136 S. Ct. 1540, 1547 (2016)

. While the second and third prongs

— causation and redressability

— are relaxed when, as here, petitioners claim procedural injury , petitioners must still establish that “the agency action threatens their concrete interest.” Mendoza v. Perez , 754 F.3d 1002, 1010 (D.C. Cir. 2014)

. And at least one petitioner must make that showing of injury “for each claim they seek to press. ” City of Bos. Delegation v. FERC , 897 F.3d 241, 250 (D.C. Cir. 2018) (alteration and quotation marks omitted).

Of particular relevance here , “a petitioner whose standing is not self[

- ]evident should ,” in its “opening brief,” “ establish its standing by the submission of its argum ents and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding .”

Sierra Club v. EPA , 292 F.3d 895, 900 (D.C. Cir. 2002) ; accord Twin Rivers Paper Co. v. SEC

, 934 F.3d 607, 614 (D.C. Cir. 2019). N o petitioner ’s standing is self

- evident here , and no petitioner has made the showing necessary to demonstrate its standing to bring any issue raised

before us

.

Consider , first, Gilpin County and the NHPA claims that it alone brings. Petitioners’ opening b rief fails to make any argument, let alone produce or point to any evidence, that Gilpin3

County has standing to bring its three NHPA claims. That failure constitutes a forfeiture. Sierra

Club , 292 F.3d at 900; see Al

- Tamimi v. Adelson , 916 F.3d 1, 6 (D.C . Cir. 2019) (“A party forfeits an argument by failing to raise it in [its] opening brief .” ) . “Although a party cannot forfeit a claim that we lack jurisdiction, it can forfeit a claim that we possess jurisdiction.” Scenic Am., Inc. v.

DOT , 836 F.3d 42, 53 n.4 (D.C. Cir. 2016). At oral argument, petitioners suggested that they did not need to make any argument about Gilpin County’s standing in the section of their opening

brief devoted to the issue of standing , because the County’s standing was evident f rom the brief’s arguments on the merits of the NHPA claims. But even the opening brief’s discussion of the

merits of the NHPA claims offered no affidavits or other evidentiary materials substantiating Gilpin County’s standing, as our precedent s require in the circumstances

, see, e .g. , Twin Rivers Paper Co. , 934 F.3d at 614. Indeed, even after the FAA noted the lack of affidavits or citations

to record evidence supporting Gilpin County’s standing in petitioners’ opening brief , petitioners

made no attempt to correct the deficiency in their reply brief

.

As to the remaining claims , which are brought by all six petitioners, we are again left

without any affidavits or other evidence substantiating any petitioner’s standing, and several petitioners’ th eories of standing suffer from legal flaws as well. First, the municipal petitioners

— the City of Greenwood Village and Arapahoe, Douglas, and Gilpin Counties

— claim standing only

on behalf of their citizens. The doctrine of parens patriae, however, prohib its states from suing the federal government for harm caused only to their citizens except whe n permitted by statute, and we have previously held that the Administrative Procedure Act does not so permit. Gov’t of

Manitoba v. Bernhardt , 923 F.3d 173, 181 ( D.C. Cir. 2019). Additionally, we have previously “presum[ed]” that municipalities are subject to the parens patriae doctrine because they “derive their existence from the state and function as political subdivisions of the state.” City of Olmstead

Falls v. FAA , 292 F.3d 261, 268 (D.C. Cir. 2002). In their reply brief, the municipal petitioners pivot to allege that the Metroplex has harmed the municipalities themselves, but they forfeited this argument by failing to raise it in their opening brief. See Twin Rivers Paper Co. , 934 F.3d at 613.
Moreover, even if the city and counties’ theory of standing on behalf of their citizens w as without infirmity, it would still be lacking in any support. For example, petitioners offer no evidence demonstrating how “Metroplex will directly affect the efforts of Arapahoe and Douglas Counties to reduce and mitigate noise and other aircraft impacts

. ” Pet. Br. 22. They thus fall short of their obligation to “either identify in [the administrative] rec ord evidence sufficient to support [their] standing to seek review or, if there is none because standing was not an issue before the agency, submit additional evidence to the court of appeals.” Twin Rivers Paper Co

. , 934 F.3d at 61 3 (first

alteration in o riginal) (quoting Sierra Club , 292 F.3d at 899).

Mountain Aviation likewise fails to demonstrate its standing

. As an initial matter, petitioners do not specify whether Mountain Aviation claims standing on its own behalf ( that is, organizational standing ) or on behalf of its members ( that is, associational or representational standing )

. E ach of those types of standing carries its own requirements

. S ee, e.g. , PETA v.

USDA , 797 F.3d 1087, 1093 (D.C. Cir. 2015) (organizational); Sierra Club v. FERC , 827 F. 3d 59, 65 (D.C. Cir. 2016) (associational). Mountain Aviation has not identified which type of standing it claims, let alone how the company fulfills the requirements of either type. And what little is said in petitioners’ opening brief lack s evidence to support any theory of Mountain Aviation’s4

standing. P etitioners there stated only that the “ FAA’s decision

. . . affects carriers such as Mountain Aviation who must operate within the new Metroplex rules

, ” Pet. Br. 20 , and that “the safety concerns regarding the new arrival and departure procedures constitute injury with respect to operators such as Mountain Aviation

, ” i d. at 21. Mountain Aviation has not substantiated those passing assertions of injury

. “A petitioner seeking our direct re view of agency action cannot rest
on bare assertions” of that kind, but instead “ must ‘identify in th[e] record evidence sufficient to support its standing to seek review .’ ” Util

. Workers Union of Am. Loc. 464 v. FERC , 896 F.3d 573, 578 (D.C. Cir. 2018) ( alteration in original) (quoting Sierra Club , 292 F.3d at 899 ).

Mountain Aviation has not done so here.

Finally, the Arapahoe County Public Airport Authority ( ACPAA, or Centennial Airport)

also fails to demonstrate its standing. In petitioners’ opening brief, they state only that “[t]he ACPAA has worked for years to promote compatible land use in the Airport Impact Area and has worked diligently with other local governments to minimize noise disruptions.” Pet. Br. 2 1 . In their repl y brief, they elaborate somewhat, stating that Centennial “Airport maintains an FAA funded and approved part 150 Noise Compatibility Program.” Pet. Reply Br. 5. Assuming petitioners would successfully show on the merits that the FAA gave inadequate consi deration to the Metroplex’s noise impacts, we are still left without any information, much less evidence, of

what benefit s are conferred upon Centennial Airport by its participation in the Noise Compatibility Program, or how noise impacts from the Denver M etroplex would interfere with realization of

th ose benefit s . This case is thus unlike City of Los Angeles v. National Highway Traffic Safety

Administration , in which the city and stat e petitioner s w ere required to comply with Clean Air Act air quality sta ndards and alleged that a new FAA standard made it more difficult to do so. 912 F.2d 478, 484

– 85 (D.C. Cir. 1990), overruled in part on other grounds

, Fla. Audubon Soc’y v.

Bentsen , 94 F.3d 658 (D.C. Cir. 1996)

. Here, ACPAA point s to no record evidence, nor do es it submit any affidavits, tending to show that increased noise would adversely affect its compliance with the Noise Compatibility Program.

In sum, b ecause no petitioner has demonstrated standing to bring any claim in the

c onsolidated petitions for review, we dismiss the petitions for lack of jurisdiction.

Pursuant to D.C. Circuit Rule. 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41 (b); D .C. Cir. R. 41(b).

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk