Portola Valley Lawsuit Challenges FAA’s New Flight Patterns

By Terry Rein

Anyone subjected to the constant barrage of jet noise from the FAA’s new flight patterns over Santa Cruz County desperately wants to believe that this horrible situation will change. We need hope. One possible ray of light can be found in a lawsuit filed by Portola Valley residents against the FAA.

A Flawed Environmental Assessment. Under the National Environmental Policy Act (NEPA), the FAA conducted a cursory Environmental Assessment (EA), when it could have performed a full Environmental Impact Statement (EIS). It prepared an EA based on its faulty assertion that the environmental impacts from the new flight plan would be insignificant. More specifically, in its 2014 Finding of No Significant Impact (FONSI), the FAA concluded that there would be no significant environmental impacts (including noise!!) as a result of the new flight design. For those of us who are impacted, it is clear that the FAA failed to properly analyze the noise impacts resulting from the low, loud, and constant jets immediately above our homes.

Should Santa Cruz County Residents Sue the FAA? Should Santa Cruz County residents sue the FAA for its cursory environmental review? In addition to the expense of litigation, we would most likely face a significant procedural barrier. The FAA claims that, based on Title 49 US Code § 46110, there is a 60-day statute of limitations to file a lawsuit challenging a FONSI. That 60-day period expired in 2014 according to the FAA, so the time to bring legal action may have expired. That very issue is being litigated in an action brought by the City of Phoenix, which is challenging the FAA’s new flight patterns in that region.

The Portola Valley Lawsuit. To my knowledge, there is only one lawsuit filed against the FAA challenging the decision to implement the new flight patterns within the 60-day statute of limitations.

Petitioners James Lyons, Tina Nguyen, Mary Jane McCarthy, and Frank Rothschild filed an action in the 9th Circuit Court of Appeal asking the Court to review the FAA’s FONSI. The lawsuit challenges the FAA’s finding that the new flight patterns will not result in increases in noise levels from the jets.

The opening brief in the Portola Valley lawsuit makes strong arguments for the FAA’s arbitrariness, capriciousness, and unlawfulness of certain actions taken in the process leading up to the FAA’s decision to implement 32 new flight paths in Northern California, including the new flight path most affecting Santa Cruz County.

If the Petitioners win, the Court will likely force the FAA to re-evaluate the EA or to perform a full EIS. No one can be certain of the outcome, but that process could lead to noise mitigation measures with quieter altitudes and speed constraints.

Funding for the Portola Valley Lawsuit Is Needed. The petitioners in the Portola Valley litigation are asking for financial support. They need approximately thirty thousand dollars ($30,000) by 11/25/15, which is anticipated to get them through the final hearing on this matter. Anyone interested in supporting the Portola Valley litigation should send a check to: Law Offices of Thomas V. Christopher, The Bank of America Center 555 California Street, Suite 4925, San Francisco, CA 94104.

Mr. Christopher is a graduate of Boalt Hall School of Law at UC Berkeley and was named one of the “Best Attorneys in the Bay Area” by Bay Area Lawyer magazine. The check should be made out to “The Law Offices of Thomas V. Christopher,” and in the memo section state: “For Lyons et al v. FAA.” 100% of each donation goes to the PV lawsuit.

The final decision by the Court will likely be made in 2016. This is truly a David vs. Goliath type of lawsuit and it’s impossible to determine the probability of success. But the suit will certainly fail if there is not enough money to proceed with the litigation. If everyone in Santa Cruz County who is adversely affected by the jet noise chips in even a little, it will go a long way to stand up to the FAA!

Is There Hope? There still is hope that the FAA will “do the right thing.” Local officials and Save Our Skies have met with FAA representatives requesting that flight pattern changes be implemented. The problem is that we don’t know whether the FAA is willing to voluntarily make changes. So, until change is made, make lots of noise, donate to the Portola Valley lawsuit, and hope that someday we will be heard!

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Terry Rein is a Santa Cruz attorney specializing in transactional real estate matters. This is sent for information only and does not constitute legal advice.