Summary
The Tenth Circuit denied Bruce Adams’s petition for review of an FAA and National Park Service Air Tour Management Plan prohibiting commercial air tours over Bandelier National Monument. The court held that NPATMA requires significant adverse impacts to justify restrictions, but that NPATMA’s significance standard differs from NEPA’s significance standard. It further held that the administrative record provided a reasonably discernible path supporting a finding of NPATMA-significant cultural impacts and rejected Adams’s inadequately developed additional APA challenges.
Topics
Practice areas
Questions Presented
- Whether the agencies were required to find significant adverse impacts under the National Parks Air Tour Management Act before prohibiting commercial air tours.
- Whether a finding of no significant impact under NEPA necessarily precluded a finding of significant adverse impacts under the National Parks Air Tour Management Act.
- Whether the administrative record contained a reasonably discernible path supporting a finding of significance under the National Parks Air Tour Management Act.
- Whether the final Air Tour Management Plan was arbitrary or capricious under the Administrative Procedure Act.
- Whether the agencies complied with NEPA and the National Historic Preservation Act.
- Whether Adams's constitutional challenges to the National Parks Air Tour Management Act were forfeited by failure to exhaust administrative remedies and inadequate briefing.
- Whether Adams's due-process, equal-treatment, and ex post facto challenges to the final plan were adequately presented and supported.
Holdings
- NPATMA requires a finding of significant adverse impacts to justify restrictions on commercial air tours in an Air Tour Management Plan, including a prohibition on such tours.
- A finding of no significant impacts under NEPA does not necessarily mean that there are no significant adverse impacts under NPATMA.
- The administrative record contained a reasonably discernible path to a finding that commercial air tours caused significant adverse impacts under NPATMA, notwithstanding the agencies' failure to expressly use the statutory phrase.
- The challenge to the final ATMP as arbitrary or capricious was not adequately developed, and the court declined to reach its merits. In any event, the agencies' extensive factfinding concerning Bandelier's unique cultural resources was entitled to deferential review.
- The agencies complied with their procedural obligations under NEPA and the National Historic Preservation Act.
- Adams forfeited his nondelegation, First Amendment, and Commerce Clause challenges by failing to present them to the agencies during the administrative process.
- Adams's due-process, equal-treatment, and ex post facto challenges were waived because they were inadequately developed in his opening brief and unsupported by adequate record citations.
Key quotations
“We thus hold that a finding of no significant adverse impacts under NEPA does not necessarily mean there was a finding of no significant adverse impacts under NPATMA.” (15)
“A reviewing court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.”” (16)
“The agency decision here is less than ideally clear, but that does not affect the bottom line.” (18)
“We DENY the petition for review.” (28)
Factual background
The FAA and NPS developed an Air Tour Management Plan for Bandelier National Monument after consulting with tribes and the public and preparing an environmental assessment. Tribal consultations identified air tours as adversely affecting sacred sites, cultural practices, privacy, and the cultural landscape. The agencies rejected alternatives that would have allowed or limited air tours and issued a final plan prohibiting all commercial air tours over Bandelier. Adams, a longtime commercial air-tour operator who had interim authority to conduct flights over Bandelier, challenged the prohibition.
Procedural history
The FAA and NPS issued a final Air Tour Management Plan on February 29, 2024, prohibiting commercial air tours over Bandelier National Monument. Adams timely petitioned the Tenth Circuit for review, challenging the plan under the National Parks Air Tour Management Act, the Administrative Procedure Act, NEPA, NHPA, and several constitutional provisions. The court denied the petition for review.