UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CITIZENS CONCERNED ABOUT JET

NOISE, INCORPORATED, a Virginia

non-stock corporation,

Plaintiff-Appellant,

v. No. 99-1887

JOHN H. DALTON, in his official

capacity as Secretary of the Navy;

UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CA-98-800-2)

Argued: June 7, 2000

Decided: July 19, 2000

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,

and Robert R. BEEZER, Senior Circuit Judge of the

United States Court of Appeals for the Ninth Circuit,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jack Elmer Ferrebee, JACK E. FERREBEE, P.C., Virginia Beach, Virginia, for Appellant. Robert Harris Oakley, Environ-
ment & Natural Resources Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON

BRIEF: Lois J. Schiffer, Assistant Attorney General, Jack Haugrud,

Ellen Durkee, Andrew Mergen, Environment & Natural Resources

Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Citizens Concerned About Jet Noise appeal the district court's

summary judgment in favor of John Dalton, Secretary of the Navy

("the Navy"). We review the court's decision de novo. See Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1024 (4th

Cir. 1975). We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

Citizens Concerned About Jet Noise, which is comprised of residents who live within the accident potential zones and noise corridors

surrounding Oceana's Naval Air Station in Virginia Beach, Virginia,

challenge the adequacy of the Final Environmental Impact Statement

produced by the Navy pursuant to the National Environmental Policy

Act, 42 U.S.C. §§ 4321-4370d, and supported by an approximately

51,000 page administrative record. The Final Environmental Impact

Statement was conducted to assist in the reassignment of 180 F/A-18

C/D aircraft from Cecil Air Field, Florida, which was to be closed by

the end of 1999. The Navy identified five alternative realignment scenarios to be compared in the Final Environmental Impact Statement

based on the three military air fields (Naval Air Station Oceana,

Marine Corps Air Station Cherry Point, and Marine Corps Air Station

Beaufort) determined to have the necessary capacity and infrastructure to support reassignment. The second scenario was eventually

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selected according to which 24 aircraft were sent to Marine Corps Air

Station Beaufort and 156 were sent to Naval Air Station Oceana.

Citizens Concerned About Jet Noise argue that the Final Environmental Impact Statement informing this decision was inadequate

because the document did not 1) discuss an appropriate range of alternatives, 2) contain a safety analysis, 3) analyze sufficiently the impact

of noise, 4) disclose known costs or identify and measure reasonably

foreseeable costs, and 5) include in the cumulative effects analysis the

possible future upgrade of the realigned aircraft. The latter two complaints present the most serious challenges.

Citizens Concerned About Jet Noise assert that the Navy projected

enormous economic benefits for the community without assessing or

disclosing known or reasonably foreseeable costs. Specifically, Citizens Concerned About Jet Noise contend that the Final Environmental Impact Statement should have included mitigation costs of sound

attenuation to private residences and schools as well as the projected

decrease in the value of property located within the accident potential

zones.

It was not arbitrary, capricious or unreasonable for the Navy to

exclude this information. See Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 354 (1989) (holding Environmental Impact

Statement adequate without fully developed mitigation plan); Town of

Norfolk v. EPA, 761 F. Supp. 867, 887 (D. Mass. 1991) (holding that

failure to place a dollar value on possible decrease in property value

was not unreasonable). The Final Environmental Impact Statement

noted generally that mitigation costs would be significant. The Navy

was not required to provide specific estimates because it did not have

the authority to expend federal funds on improvements to state, local

or private property.

Citizens Concerned About Jet Noise also dispute the adequacy of

the Final Environmental Impact Statement's cumulative impact analysis. Citizens Concerned About Jet Noise assert that it was reasonably

foreseeable that the Navy would be replacing the F-14 and F/A-18

C/D aircraft with F/A-18 E/F and that the Final Environmental Impact

Statement did not sufficiently discuss the environmental impact of

this action.

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The Final Environmental Impact Statement noted the likely future

replacement of current aircraft with the F/A-18 E/Fs. It reported some

of the expected changes that could result with respect to air quality

and noise impact but indicated that a more detailed analysis was not

possible until the future mix of E/F and C/D models was determined.

Once a schedule of replacement was formally adopted, the Navy

acknowledged that another Environmental Impact Statement would

be necessary.

Citizens Concerned About Jet Noise contend that the exclusion of

the more detailed analysis was arbitrary and capricious because the

Navy knew the replacement schedule as evidenced by programming

and budgetary materials. It is undisputed, however, that at the time the

Final Environmental Impact Statement was drafted, the Navy had not

issued any formal proposed action to place F/A-18 E/F aircraft at

Naval Air Station Oceana. Even if the Navy could have conducted a

more thorough cumulative impact analysis, given that the Navy plans

to develop an Environmental Impact Statement for the replacement

action, it would be duplicative for this court to order it to perform a

supplemental Environmental Impact Statement at this time. See North

Carolina v. FAA, 957 F.2d 1125, 1131 (4th Cir. 1992).

The district court's well-reasoned opinion sufficiently discussed

Citizens Concerned About Jet Noise's other challenges to the Final

Environmental Impact Statement. The Navy complied with the procedural requirements of the National Environmental Policy Act; the

Final Environmental Impact Statement was adequate.

AFFIRMED

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