## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 97-3232

________________ Ci ty of Pierre, a municipa l * co rporation; Gary L. Drewes , * individually and as Mayor of th e * Ci ty of Pierre, a municipa l * corporation; *

Petitioners, * Aviation Administration.

v. *
Federal Aviation Administration ; * Barry Valentine, as Actin g * Ad ministrator of the Federa l * Aviation Administration; Ceceli a * Hunziker, as Regional Administr ator * of the Federal Aviatio n * Administration; *

Respondents. * * Appeal from the Federal

*

*

*

________________ Submitted: March 11, 1998 Filed: July 24, 1998

________________The Honorable Richard W. Goldberg, Judge, United States Court of 1 International Trade, sitting by designation.

2 Before WOLLMAN and HANSEN, Circuit Judges, and GOLDBERG, Judge. 1

________________ HANSEN, Circuit Judge.
The City of Pierre and GaryDrewes petition, pursuant to 49 U.S.C. § 46110(a) (1994 ), for review of the Federal Aviation Administration's (FAA's) orde r decom missioning the Flight Service Station (FSS) at the Pierre Regional Airport i n Pie rre, South Dakota. We grant petitioners' motion to supplement the petition fo r review, and we affirm the FAA's closure order.
I. Facts and Background

In the 1920 s, the first FSSs were established in order to provide groun d communicationwith mail airplanes flying between Washington, D.C. and Oakland , California. SeeFlight Service Station Modernizatio n Plan, 45 Fed. Reg. 26202, 26203 (1980). During the 1930s and 1940s, additional FSSs were built across the country , and the role these installations played expanded to encompass additional functions , such as relaying traffic control clea rances and accepting position reports for Air Route Traffic Co ntrol Centers. By 1960, however, many of these functions had bee n transferre d to remote air-ground communications facilities. Since 1960, the role o f FSSs has been limited to providing weather and aeronautical services to n oncommercial pilots. Id. After condu cting a comprehensive study, the FAA announced in 1980 that the 290 then-existing FSSs in the contiguous 48 states would be phased out an d replaced with 61 Automated Flight Service Stations (AFSSs). Id. Pierre, which had been home to an FSS, was not chosen as one of the 61 AFSS sites.3

Rat her than closing all of the FSSs at once, the FAA gradually phased out these facilities over the course of alm ost two decades. The FAA did not close the Pierre FSS until September 4, 1997. The facility was scheduled for closure on August 16, 1997, but a judge of this court granted a temporary stay. On September 4, 1997, an administrative panel of this court lifted the temporary stay, and the Pierre FSS closed.

On Augu st 15, 1997, the City of Pierre and its mayor (collectively "the City" ) petitioned, pursuant to 49 U.S.C. § 46110(a), for review of the closure decision. Th e City asks us to set aside the FAA's closure order and enjoin the closing of the Pierr e FSS. Alternatively, the City requests a full evidentiary hearing regarding the basis for the F AA's closure order. We deny the petition and affirm the closure decision of th e FAA.

II. Jurisdiction

We first address the question of whether we have jurisdiction. Pursuant to 4 9 U.S.C. § 46110( a), interested parties may petition for judicial review of FAA orders in the appropriate court of appeals. However, peti tions must be filed within 60 days of the issuance of the order. Id. The FAA argues that the final order to close the Pierre FSS
was the 1980 decision to close all 290 FSSs and replace them with 61 AFSSs. Se e Resolution of Publ ic Review; Identification of 61 Proposed [A]FSS Locations, 45 Fed. Reg. 81707 (1980). The FAA a rgues that because roughly 17 years have elapsed since this plan was published in 1980, we lack jurisdiction to consider the City's petition for review.

We do not believe that the 1980 decision to phase out the FSSs constituted th e final resolution of the question of whether the Pierre FSS would be closed. The Ninth Circuit has wr

itten that for the purposes of section 46110, an FAA decision constitutes a review able order only if it (1) is final, (2) contemplates immediate compliance, (3) is public, and (4) is based on an administrative record that permits meaningful appellate4

review. City of Arcata v. Slater , No. 97-71015, 1997 WL 812258, at *1 (9th Cir. Dec. 24, 1997) (unpublished); see Blincoe v. FAA , 37 F.3d 462, 463-64 (9th Cir.1994). The 198 0 resolution did no more than specify phases for the implementation of th e conversion from FSSs to AFSSs. Although the resolution spoke of the closure of all 290 FSSs, it explicitly stated that "[c]onsolidation of individual existing FSSs will not b e initiated until

[various] preceding steps have been completed," 45 Fed. Reg. at 81707, and proje cted that these "preceding steps" would not be completed until 1989, id. a t 81709. Because several "preceding ste ps" had to be completed over many years before any closings would be initiated, the 1980 resolution was not "final" with regard to the closing of the Pierre FSS, nor did it "contemplate immediate compliance." Arcata , 1997 WL 812258, at *1. Accordingly, it was not a reviewable "order" with respect to th e closure of the Pierre FSS.
Intervening events also make clear that the 1980 plan could not have been th e final order with respect to the Pierre closure. Congress responded to the FAA's 198 0 pronouncement by passing legislation which specified tha t no more than five FSSs could be closed before October 1, 1983, and that no FSS could be closed subsequent to that date until certain assurances had been ma de regarding the quality of services that would be provided after the closure. See Airport and Airway Improvement Act of 1982, Pub. L. 97-248, § 528(c), 96 Stat. 324. In 1987, Congress replaced the 1982 provision with a new provision stating that the FAA could not close an FSS unless "the service provided in the area after the closure . . . is prov ided by an [AFSS] with at least model 1 or better equi pment." Airport and Airway Safety and Capacity Expansion Act of 1987, Pub. L. 100-223, § 113, 101 S tat. 1486 (codified as amended at 49 U.S.C. § 44514) (replacing § 52 8 of the Airport and Airway Improvement Act of 1982) (the 1987 Act). Finally , Congress passed the Federal Aviation Reauthorization Act of 1996, Pub. L. 104-264, § 1216, 110 Stat. 3213, 3285 (the 1996 Act), which placed specific limits on the FAA's authority to close three of the then-remaining FSSs. Section 1216(c) of the 1996 Ac t provided that the FAA could not close the Pierre FSS for at least 1805

days, and that be fore it could close this facility after the expiration of 180 days, it must first certi fy to the House Committee on Transportation and Infrastructure and to th e Senate Committee on Commerce, Science, and Transportation "that such c losure will not result in a degradation of air safety, a ir service, or the loss of meteorological services or data that can not otherwise be obtained in a more cost-effective manner, and that it will
r e duce costs to taxpayers." Id. § 1216(c). Until it satisfied the conditions of the 1987 and 1996 Acts, the FAA lacked the power to order the closure of the Pierre FSS

. Because the last of these conditions was not satisfied u ntil the FAA issued the necessary certificati ons to the congressional committees on July 1, 1997, the final closure orde r could not have issued before such time.
The language of the 1996 Act makes clear that the cert ifications themselves could not have constituted the FAA's closure order. Rather, satisfaction of the certificatio n requiremen ts was a precondition which had to be satisfied in order for the FAA t o acquire the power to close the facility. See id. § 1216(c). Accordingly, t he closure order must have issued some time after these certifications were made.

On July 10, 1997, ten days after making its certifications to the congressiona l committees, the FAA wrote to the City of Pierre, proposing that the FSS b e decom missionedon August 16, 1997, and soliciting comments. This letter was to o tentative to be a final order. At best it recites proposed action and asks for comments so that the FAA can comp lete its "study." It orders nothing to be done. See Red River Transp. & Dev. Co. v. FAA , 630 F.2d 592, 595 (tentative language of FAA lette r
ren dered it not final) (8th Cir. 1980); Arcata , 1997 WL 812258, at *1 (tentative lette r was not an order, but subsequent letter which stated fina l agency position was an order); Blincoe , 37 F.3d at 464-65 (lette r not final order where by its terms the letter suggested that the administrative process was incomplete). After receiving comments from th e City, the FAA wrote again on August 14, 1997, thi s time to inform the City that the FSS woulddefinitely be closed on August 16, 1997. Unlike the letter of July 10, the letter of August 14 stated a final agency position and contemplated immediate6

compliance. Furthermore, comments had been solicited and received from the City and other interested parties, s uch that the administrative record was complete as of the time that this letter was sent.

We ho ld that the letter of August 14, 1997, was the final decision of the FAA

. Because the City 's August 15, 1997, petition was filed within 60 days of this order, we have jurisdi ction to review the final closure order of the FAA. We do not, however , have jurisdiction to review the sufficiency of the certifications to Congress, which were not orders and do not fall within the scope of 49 U.S.C. § 46110.

III. The Closure Decision

The City argues that the 1996 Act required the FAA to make new findings with
res pectto the Pierre FSS. Additionally, the City argues that the Administrator' s certifications are a final order subject to our review. We respectfully disagree as to both cont entions. In our view, the 1996 Act did not restart the closure decision-makin g process, nor did it give the petitioners any additional rights to b e heard on the issue. The 1996 Ac t did not require the FAA to undertake any formal contested case proceedings with respect to its Pierre closure decision. The FAA's certifications to the congressional committees could be based on the information it had already acquired and assembled, and th e certification letter was essentially a report to Congress and for Congress' s purposes. T he statute did nothing more than require the Administrator to wait si x months and then assure the Congre ss that the already-planned closure of the Pierre FSS would meet congressionally defined goals.

Because our

review is jurisdictionally limited to the FAA's closure order, see 49 U.S.C. § 46110(c), we do not have jurisdiction to address the basis for the certifications to Congress. Rath er, we review these certifications only to ascertain whether the FAA waited the requisite 180 days and made all of the necessary7

assurances to both of the specified committees as required by the 1996 Act. It i s undisputed that it did.

Becausesection 46110 is silent as to the standard to be applied when reviewing nonfactual matters, we look to the Administrative Procedure Act (the APA) f or guidance. See Public Citizen, Inc. v. FAA , 988 F.2d 186, 196 (D.C. Cir. 1993). Pursuant t o sectio n 10(e) of the APA, we set aside agency actions only when they are "arbitrary , capricious, a

n abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We have interpreted this standard very narrowly, holding that "[a]s long as the age ncy provides a rational explanation for its decision, a reviewing court cannot disturb it." National Wildlife Fed'n v. Whistler , 27 F.3d 1341, 1344 (8th Cir. 1994)

. This nar row standard of review reflects the considerable deference which we afford to decisions made within an agency's area of expertise. Id.

The FAA provided a detailed explanation of and justification for its action in its August 14 letter to the City. The FAA explaine d that the AFSS located in Huron, South Dakota, would provide round-the-clock air -ground communications, clearance delivery, preflight weather briefings, hazardous weath er information, NEXRAD Doppler weather radar information, direct

ion finder service, and airport information service. (Jt. App. at Tab 4). Additionally, the FAA explained that an automated surface observing syste m (ASOS) would be installed at the Pierre airport to provide official weather reports which would up date every minute, 24-hours-a-day, and that until this system was in place , contrac t human weather observers would provide a similar service. Id. The FA A estimated that the cl osure of the Pierre FSS would save the taxpayers over $170,000 in the first year and over $300,000 in each subsequent year. Id. This estimate i s
substantiated by internal FAA documents. ( See FAA Consolidation Study, Jt. App. at Tab 3). Based on these facts, the FAA concluded that the closure of the Pierre FS S would "not result in a degradation of air saf ety, air service, or the loss of meteorological services or d ata that cannot otherwise be obtained in a more cost-effective manner and that it will reduce cost[s] to taxpayers." (Jt. App.Although it was not constitutionally required to do so, the FAA gave notice 2 and solicited comments before it issued the final order to close the Pierre FSS. In fact, the City submitted written comments which were received and considered prior to the issuance of the final order of August 14, 1997.

8 atTab 4). In light of this detailed, rational explanation, we cannot find that the FAA's decision was arbitrary, capricious, or otherwise contrary to law. See Whistler , 27 F.3d at 1344.
The City argues that it

was denied due process, citing Board of Regents v. Roth , 408 U.S. 564 (1972), and Mathews v. Eldridge , 424 U.S. 319 (1976). However, du e pro cess is only owed to those who stand to be deprived of a cognizable property o r l i berty interest. See U.S. Const. amend. V; Roth , 408 U.S. at 569 ("The requirements of procedural due process apply only to th e deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property."). The City has provided
no support for the proposition that it had any cognizable liberty or property interes t wha tsoever

in the continued operation of the Pierre FSS. Accordingly, it had n o constitution al right to notice, a hearing, or an opportunity to be heard in relation to this matter. 2
The 1996 Act granted the Pierre FSS a reprieve—a reprieve which expired on July 1, 1997. After that time, the FSS was subject to closure by the FAA, just as the FAA h a s closed every other FSS in the contiguous 48 states. Today, not one of the original 290 F SSs remains. One may question whether the conversion from the old system o f FSSs to the new network of AFSSs has been a good one, as the City does, but that is a public poli cy question for the Congress rather than the federal courts. We hold simply that the closure of the Pierre FSS by the FAA was not a rbitrary, capricious, or otherwise contrary to law.9 IV.
Accordingly, we affirm the order of the Federal Aviation Administration closing the Pierre FSS.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT