Lawsuit filed against Davis-Monthan by Tucson residents

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ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST P.O. Box 41835

Tucson, Arizona 85719

(520)529-1798

Attorneys for Plaintiffs

Joy E. Herr-Cardillo (009718)

[email protected]

Timothy M. Hogan (004567)

[email protected]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

RITA B. ORNELAS, GARY HUNTER, and ANITA SCALES, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, ROY ALAN C. AGUSTIN, in his official capacity as Brigadier General, USAF, and Director of Installations & Mission Support Defendants.

No. COMPLAINT (DECLARATORY AND INJUNCTIVE RELIEF)

Plaintiffs, by and through their attorneys, the Arizona Center for Law in the Public

Interest, for their Complaint against defendants allege as follows:

NATURE OF THE ACTION

1. Plaintiffs are seeking declaratory and injunctive relief for violations of the

National Environmental Policy Act, 42 U.S.C. 4321 et seq. (NEPA).

2. On May 14, 2015, the United States Department of the Air Force (USAF)

approved an update and implementation of the Total Force Training Mission for Visiting

Units (Operation Snowbird Multi-Service, Foreign Military Sales)(TFT) at Davis-Monthan

Case 4:16-cv-00046-JR Document 1 Filed 01/22/16 Page 1 of 29

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Air Force Base (DMAFB) located in Tucson, Arizona. The approved action will increase

the annual number of sorties1 flown by visiting units at DMAFB to 2,326.

3. In evaluating the TFT, the USAF failed to comply with numerous requirements

of the NEPA and failed to adequately evaluate the environmental impact of the approved

action. As set forth below, USAF action in this case was arbitrary, capricious, and not in

accordance with applicable law.

4. Plaintiffs seek declaratory and injunctive relief that recognizes that the

environmental assessment prepared by the USAF is inadequate and requires the USAF to

conduct a legally-compliant NEPA analysis including an Environmental Impact Statement as

required by law.

5. Should Plaintiffs prevail, they will seek an award of costs and attorneys fees

pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331

(Federal Question), 1346 (United States as defendant), and 5 U.S.C. 701-706 (judicial

review provisions of the APA), and is authorized to provide the relief sought under 28

U.S.C. 2201 and 2202.

7. Venue in this Court is proper under 28 U.S.C. 1391(e) because this is a civil

action in which officers or employees of the United States or any agency thereof are acting in

their official capacity, a substantial part of the events or omissions giving rise to the claims

occurred in this judicial district, and the Plaintiffs all reside in this district.

8. An actual, justiciable controversy exists now between the parties within the

meaning of 28 U.S.C. 2201 and Plaintiffs are entitled to relief sought herein to redress the

harm Plaintiffs would otherwise suffer.

1 A sortie consists of a single aircraft conducting flight operations from initial takeoff to final landing, which

represents two airfield operations (one takeoff and one landing).


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9. Plaintiffs have exhausted their administrative remedies. The USAF does not

provide an administrative appeal process for decisions documented in a Finding of No

Significant Impact (FONSI).

10. Plaintiffs have no adequate remedy at law.

11. The federal government has waived sovereign immunity in this action pursuant

to 5 U.S.C. 702.

PARTIES

12. Plaintiff Rita B. Ornelas is a resident of Tucson, Arizona. Ms. Ornelas lives in

close proximity to the DMAFB in the Julia Keen neighborhood. Ms. Ornelass home, which

she purchased in 1987, is in the flight pattern of the TFT operations (within the 70-74 dB

zone) and aircraft taking off and landing at the DMAFB fly directly over her house. As a

result, she is directly and negatively impacted by the approved action to increase the number

of sorties flown by visiting units. The injuries suffered by Ms. Ornelas include economic

injuries due to the negative impact that the increased flight traffic has on the value of her

home, as well as physical and emotional injuries that she has suffered and will continue to

suffer as a result of being subjected to an increased number of sorties by aircraft that are also

increasingly loud.

13. Ms. Ornelas is a former member of Tucson Forward and current member of

Americans for Livable Communities and helped draft the written comments submitted by

those organizations during the public comment periods for the Draft Environmental

Assessment for the Proposed Update and Implementation of the National Guard Bureau

Training Plan 60-1 in Support of Operation Snowbird Davis-Monthan Air Force Base,

Arizona (Draft EA) and Draft Environmental Assessment for the Update and

Implementation of the Total Force Training Mission for Visiting Units (Operation Snowbird,

Multi-Service, and Foreign Military Sales) Davis-Monthan Air Force Base, Arizona,

(Revised Draft EA). Ms. Ornelas also submitted individual written comments under her


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own name during the public comment period for the Draft EA. Ms. Ornelas was the

Representative of the Julia Keen Neighborhood Association on the Military Community

Relations Committee (MCRC) from 2009 to January 2016.

14. Plaintiff Gary Hunter is a resident of Tucson, Arizona and lives in the

Blenman-Elm neighborhood. His home, which he and his wife purchased in 1997, is in the

flight pattern of TFT operations and aircraft taking off and landing at the DMAFB fly

directly over his house. As a result, he is directly and negatively impacted by the approved

action to increase the number of sorties flown by visiting units. The injuries suffered by Mr.

Hunter include economic injuries due to the negative impact that the increased flight traffic

with its resulting noise and safety concerns has on the value of his home, and emotional and

physical injuries that the increasing noise has on his quality of life.

15. Mr. Hunter participated in the Military Community Compatibility Committee

in 2005 2006. From the inception of the MCRC in 2006 until 2015, Mr. Hunter

participated as representative of the Blenman-Elm Neighborhood Association. He

participated in organizing Tucson Forward, and is a current member of Americans for

Livable Communities. He drafted the written comments submitted by the Blenman-Elm

Neighborhood Association and helped draft the written comments submitted by Tucson

Forward and by Americans for Livable Communities during the comment periods for the

Draft EA and Revised Draft EA. He also submitted individual written comments under his

own name during the comment periods for the Draft EA and Revised Draft EA.

16. Plaintiff Anita Scales is a resident of Tucson, Arizona and lives in the

Broadmoor neighborhood. Ms. Scales home, which she purchased in 2000, is in the flight

pattern of the TFT operations and aircraft taking off and landing at the DMAFB fly directly

over her house. As a result, she is directly and negatively impacted by the approved action

to increase the number of sorties flown by visiting units. The injuries suffered by Ms. Scales

include economic injuries due to the negative impact that the increased flight traffic with its


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resulting noise and safety concerns has on the value of her home, and emotional and physical

injuries that the increasing noise has on her quality of life.

17. Ms. Scales is a member of both Tucson Forward and Americans for Livable

Communities and helped draft the written comments submitted by those organizations during

the public comment periods for the original Draft EA and the Revised Draft EA. Ms. Scales

is also an alternate member of the MCRC, representing Tucson Forward on that Committee.

18. Defendant USAF is the federal agency that, through Air Combat Command

(ACC) manages DMAFB. It oversees and authorizes training by visiting units at the base.

19. Defendant Roy Alan C. Agustin is named in his official capacity as Brigadier

General and the Director of Installations and Mission Support, Headquarters ACC, Joint

Base Langley-Eustis, Virginia. He is responsible for ensuring that DMAFB supports

operational and training needs. General Agustin is responsible for the FONSI and approval

of the proposed action at issue in this case.

STATUTORY FRAMEWORK

THE NATIONAL ENVIRONMENTAL POLICY ACT

20. Plaintiffs incorporate by reference paragraphs 1 19 as if fully set forth herein.

21. Congress enacted NEPA in 1969, directing all federal agencies to assess the

environmental impacts of proposed actions that significantly affect the quality of the

environment. 42 U.S.C. 4332(2)(C). NEPAs disclosure goals are two-fold: (1) to insure

that the agency has carefully and fully contemplated the environmental effects of its action,

and (2) to insure that the public has sufficient information to challenge the agencys action.

22. The Council on Environmental Quality (CEQ) promulgated uniform

regulations to implement NEPA that are binding on all federal agencies. 42 U.S.C. 4342;

40 C.F.R. 1500 et seq.


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23. NEPA requires federal agencies to prepare a detailed environmental statement

before undertaking any major federal action significantly affecting the quality of the human

environment. 42 U.S.C. 4332(2)(C).

24. Major federal actions subject to NEPA include new and continuing

activities with effects that may be major and which are potentially subject to Federal

control and responsibility. 40 C.F.R. 1508.18.

25. The human environment includes the natural and physical environment and

the relationship of people with that environment. Id. at 1508.14.

26. Effects that must be considered include ecological, aesthetic, historic, cultural,

economic, social, and health effects, whether direct, indirect, or cumulative. Id. at 1508.8,

1508.25. An agency must evaluate potential adverse economic effects that are interrelated

with natural or physical environmental effects. Id. at 1508.14.

27. Direct effects are effects which are caused by the action and occur at the same

time and place. Id. at 1508.8(a).

28. Indirect effects are caused by the action and are later in time or farther

removed in distance, but are still reasonably foreseeable. Indirect effects may include

growth-inducing effects and other effects related to induced change in the pattern of land

use, population density or growth rate, and related effects on air and water and other natural

systems, including ecosystems. Id. at 1508.8(b).

29. Cumulative impacts are impacts on the environment that result from the

incremental impact of the action when added to other past, present, and reasonably

foreseeable future actions regardless of what agency (Federal or non-Federal) or person

undertakes such other actions. Cumulative impacts can result from individually minor but

collectively significant actions taking place over a period of time. Id. at 1508.7.


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30. An agency may prepare an environmental assessment (EA) to determine

whether a proposed action will significantly affect the environment, thereby requiring the

preparation of an environmental impact statement (EIS). 40 C.F.R. 1501.4(a), 1508.9(a).

31. If, pursuant to the EA, an agency determines that an EIS is not required under

applicable CEQ regulations, it must issue a finding of no significant impact (FONSI),

which briefly presents the reasons why the proposed agency action will not have a significant

impact on the human environment. See 1501.4(e),1508.13.

ADMINISTRATIVE PROCEDURE ACT

32. Judicial review of federal agency action is governed by the Administrative

Procedure Act (APA), 5 U.S.C. 551 et seq. Under the APA, courts shall hold unlawful

and set aside agency action, findings, or conclusions found to be "arbitrary, capricious, and

abuse of discretion, or otherwise not in accordance with the law" or without observance of

procedure required by law. 5 U.S.C. 706(2)(A), (D).

ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF

33. DMAFB is located in Tucson, Arizona approximately five miles south-

southeast of Tucsons downtown. DMAFB occupies 10,633 acres, or about sixteen and a

half square miles of land. DMAFB is bounded by residential areas to its north, west, and

east.

34. The host unit headquartered at DMAFB is the 355th Fighter Wing (355 FW)

assigned to Twelfth Air Force, part of ACC. The 355 FWs combat mission is providing A-

10 Thunderbolt II close air support and OA-10 forward air controllers to ground forces

worldwide. The 355 FW provides initial and recurrent training to all U.S. Air Force A-10,

OA-10 and EC-130 pilots and crews.

35. There are daily flight operations by aircraft units based at DMAFB, which

includes the 355th FW, the 563rd Rescue Group, the 943rd Rescue Group, the 55th Electronic

Combat Group, U.S. Customs and Border Protection and the Aerospace and Maintenance


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and Regeneration Group. These units plan for up to 75,000 to 80,000 flight operations per

year.

36. A-10 pilots are trained in providing close air support, forward air control, and

combat search and rescue. Some of these activities require pilots to perform touch and

gos and other pattern flying operations (including a racetrack pattern) at and within the

airspace surrounding DMAFB.

37. The runway at DMAFB is 13, 645 feet long, 200 feet wide, with 1,000 foot

overruns at each end. Depending on the direction of departing and arriving air traffic, it is

referred to as either Runway 12 or Runway 30.

38. Flights departing on Runway 30 or landing on Runway 12 fly over the

residential neighborhoods to the northwest of DMAFB.

39. The 162nd Fighter Wing (162nd FW) is a unit of the Arizona Air National

Guard (ANG), stationed at Tucson Air National Guard Base, located next to the Tucson

International Airport (TIA). Routine ANG activities are conducted by the 162nd FW out of

the TIA, which is located approximately 3.75 miles southwest of DMAFB. At times, ANG

F-16s also fly in and out of DMAFB.

40. Operation Snowbird (OSB) was started in 1972 and was initially designed

and implemented to allow ANG units from bases located in northern states to train in optimal

weather conditions during the winter months.

41. In 1978, the USAF and ANG completed an EA and a FONSI was issued to

address the activities occurring under OSB at DMAFB.

42. A fatal crash of an A-7 near the University of Arizona campus in 1978

prompted the USAF and ANG to reevaluate the OSB program. A portion of the OSB was

relocated to other bases, which reduced the number of OSB aircraft at DMAFB by 30

percent. In addition, by substituting two A-10 units for A-7 units, it reduced the number of

participating A-7 units from five to three.


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43. Between 1988 and 1992, the type of aircraft flying in OSB converted from F-

100 and A-7 to F-16; however, no NEPA analysis was prepared to evaluate these changes.

44. By 1995, OSB had transitioned to a year round training program, but again, no

NEPA analysis was prepared to evaluate these changes in the program.

45. In 2001, the Arizona Legislature passed legislation that appropriated funds to

develop comprehensive land use plans in the noise and accident potential zones surrounding

active military airports. As a result of this legislation, the Arizona Military Regional

Compatibility Project was created to encourage stakeholders and jurisdictions around each

Arizona military base to address land use compatibility issues.

46. In February 2004, as part of the Arizona Military Regional Compatibility

Project, the Arizona Department of Commerce published a Davis-Monthan Air Force Base

Joint Land Use Study (JLUS). The JLUS was prepared under contract with the Arizona

Department of Commerce with financial support from the Office of Economic Adjustment,

Department of Defense, and was intended to address land use compatibility issues. Although

the study purported to seek input from property owners near DMAFB, the only

neighborhood represented on the Policy Advisory Committee was the Rita Ranch

neighborhood which is to the southeast of the base. There was no formal representation from

Tucsons midtown neighborhoods, which are located north of the base, in the JLUS process.

47. On October 25, 2004 the City of Tucsons Mayor and Council voted to amend

the current Airport Environs Zone (AEZ) by incorporating the recommendations of the

JLUS into the appropriate sections of the Citys Land Use Code. As a result, zoning overlays

were enacted to restrict land uses on properties that were located within the DMAFB flight

pattern. The expanded noise contours that formed the basis for the zoning overlays signaled

the potential for increased noise over long-established Midtown and University of Arizona

area neighborhoods and throughout the DMAFB environs.


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48. The JLUS and the resulting zoning overlays were very controversial with

property owners affected by them. Midtown residents were concerned about the potential

loss of residential property value due to new residential uses being restricted in the AEZ (the

stigma of incompatible residential land use) and to quality of life impacts due to the

expansion of the high noise contours. Concerned stakeholders, especially those to the

northwest of the runway, also perceived that noise and safety issues related to DMAFB

operations were not adequately addressed by the JLUS.

49. Shortly after the Mayor and Councils October 2004 decision, the U.S. Institute

for Environmental Conflict Resolution of the Morris K. Udall and Stewart L. Udall

Foundation was enlisted by affected community members to assess the potential for a

community dialogue on these concerns.

50. The Military Community Compatibility Committee (MC3) that resulted

brought together representatives from diverse interests to discuss issues, gather information

and generate consensus recommendations. The MC3 was an advisory committee only and

had no power to adopt or implement any of its recommendations.

51. The 28-member MC3 met monthly between September 2005 and August 2006.

The process began with education and information-sharing among members, through a series

of presentations highlighting the perspectives of: DMAFB, Midtown neighbors, the

University of Arizona Science and Tech Park, outdoor-based businesses, and non-residential

landowners.

52. In August 2006 the MC3 issued its Final Report: Consensus

Recommendations.

53. One of the recommendations from the MC3 was to create an ongoing Military

Community Relations Committee (MCRC).


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54. The failure of OSB to comply with NEPA came to the publics attentionand

the attention of the USAFwith the circulation of a letter addressed to Defense Secretary

Robert Gates in November of 2008. More than 800 Tucsonans signed the letter.

55. In August 2009, the USAF hired Wyle Laboratories to conduct a study of the

OSB program. The purpose of the study was to mitigate on-going public concern over OSB

operations.

56. On April 15, 2010, Wyle Laboratories released its Draft Preliminary Study

Report, Operation Snowbird Safety Procedures and Operational Study Services (Wyle

Draft Report). The Wyle Draft Report concluded with two recommendations:

1. Air Force prepare a written environmental assessment (EA) to determine

whether or not Operation Snowbird significantly impacts the Tucson

environment. The prevailing EA, dated 1978, does not reflect the current level

of operations nor type of aircraft flown in Operation Snowbird. . . . A new EA

would re-establish the baseline of activities and provide a more realistic view

of impacts associated with Operation Snowbird operations.

2. Air Force contract for a new [Air Installation Compatible Use Zone

(AICUZ)]. The prevailing AICUZ, dated 1992, does not reflect the current level of operations. A new AICUZ would re-evaluate aircraft noise and

accident potential related to U.S. Air Force flying operations at Davis Monthan

AFB.

Wyle Draft Report at p. 55.

57. While the Wyle Draft Report was undergoing review, the contract for the study

was terminated and a decision was made to prepare an EA.

58. In July 2012, the USAF released a Draft EA and FONSI for OSB.

59. Plaintiffs submitted written comments regarding the Draft EA both

individually and through the organization Tucson Forward.

60. Those written comments identified numerous inadequacies in the Draft EA,

including, but not limited to, its failure to include an impact analysis on children, its failure

to include an analysis of health impacts generally, its flawed noise analysis, its inadequate


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safety analysis, its inadequate analysis of cumulative impacts, its failure to consider a

reasonable range of alternatives, its failure to use 1978 as its no action alternative and its

inadequate environmental justice analysis. The comment letter also urged the USAF to

prepare an EIS.

61. The public comment period for the Draft EA closed in October 2012.

62. After the close of the comment period, the USAF announced that it was

revising the Draft EA, purportedly to respond to the concerns expressed during the public

comment period.

63. On September 22, 2014, the USAF released for public comment the Revised

Draft EA.

64. The Revised Draft EA expanded the focus of the EA from just the OSB

program, and to include all training missions by visiting units at DMAFB. To reflect that

change, the name of the document changed to refer to Total Force Training. As the

Revised Draft EA explained, NGB/ANG is responsible only for those units/aircraft that are

planned specifically for OSB/Det. continued training missions. Other DoD and FMS units

that train at DMAFB do so under the authority/approval of 355 FW/CC or ACC

Headquarters. Thus, ACC has decided to revise the 2012 Draft EA to more accurately

describe the visiting unit (i.e., units other than those based at DMAFB) flight operations that

occur at DMAFB and assess their potential impacts. Revised Draft EA at ES-1 through 2.

65. The Plaintiffs individually and through Americans for Livable Communities

(ALC), submitted written comments on the Revised Draft EA.

66. ALC is an alliance of concerned citizens whose mission is to protect and

enhance the livability, safety, property values, and economic viability of their communities.

The communities represented include homeowners who live and work in the flight pattern

from DMAFB and will be affected in a number of ways if the TFT program is expanded.

Several of the current members of ALC were also active in Tucson Forward, an Arizona


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non-profit that was formed several years ago to protect Tucson and its neighborhoods from

health damaging noise and safety concerns related to overflights from Davis-Monthan.

67. In their comment letter, Plaintiffs and ALC once again identified numerous

inadequacies in the Revised Draft EA, including, but not limited to, its flawed and

incomplete noise analysis, its inadequate/missing analysis of cumulative impacts, its failure

to include an analysis of health impacts generally, its inadequate analysis of the impact on

children, its inadequate safety analysis, its inappropriate reliance upon 2009 as the no

action alternative and its inadequate environmental justice analysis. The comment letter

also objected to the inadequate process for public involvement in the Revised Draft EA and

urged the USAF to prepare an EIS.

68. The Final Environmental Assessment for the Update and Implementation of

the Total Force Training Mission for Visiting Units (Operation Snowbird, Multi-Service,

And Foreign Military Sales) Davis-Monthan Air Force Base, Arizona, (Final EA) and

FONSI were released by ACC on May 15, 2015.

FIRST CLAIM FOR RELIEF

FAILURE TO EVALUATE CUMULATIVE IMPACTS

69. Plaintiffs reallege and incorporate by this reference the allegations contained

above as though fully set forth herein.

70. CEQ regulations require the USAF to conduct an analysis of the incremental

impact of the proposed action when added to other past, present, and reasonably foreseeable

future actions regardless of what agency or person undertakes such other actions.

Cumulative impacts can result from individually minor but collectively significant actions

taking place over a period of time. 40 C.F.R. 1508.7.

71. Although the Final EA contains a chapter entitled Cumulative Impacts and

Other Environmental Considerations, the USAF failed to actually analyze cumulative

effects, especially related to noise.


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72. The Final EA states [i]t should also be noted that other routine ANG activities

conducted by the 162 WG out of Tucson International Airport (TIA), which is located

approximately 4.7 miles southwest of DMAFB (Figure 1-2) are completely separate from

the actions described herein and, thus, are not discussed in this EA. Final EA, p. 1-3

(emphasis added).

73. The analysis of cumulative impacts of TFTs flights over Tucsons residential

neighborhoods also fails to take into account commercial and general aviation aircraft, which

fly in and out of TIA and pass over midtown. Further, the analysis of cumulative impacts

fails to consider the many medical, police, and other civilian helicopters that fly over

midtown neighborhoods. DMAFB and TFT helicopters also fly over midtown, sometimes at

very low elevation, especially when practicing landings at Banner UMC and TMC.

74. The Final EA identifies numerous actions that take place on or in association

with DMAFB, including operations/flights of the 563rd Rescue Group, training by the Royal

Netherlands Air Force in F-16s, Angel Thunder, a joint services exercise that occurs every

18 months and focuses on rescue missions, occasional overflights from other planes, both

military and civilian (which includes F 35s from Luke Air Force Base), and daily flight

operations by the various groups stationed at DM all year around which undertake 75,000 to

80,000 flight operations per year. However, the Final EA fails to actually analyze the

cumulative impacts of these activities on the human environment. Instead, it simply

concludes, without any supporting analysis or explanation, [m]ost other actions at or

surrounding DMAFB may produce localized noise increases, primarily from ground

activities (such as weapons firing ranges, field training exercises, or MILCON projects), so

cumulative noise impacts would be localized and primarily on Federally owned land. The

cumulative impacts identified for airspace, ranges, noise, or safety would not be significant,

but will likely require more coordination between Albuquerque Air Route Traffic Control

Center, the FAA Central Service Region, and military airspace managers. Final EA at 5-5.


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75. Finally, the Final EA fails to analyze the cumulative effects of the no-action

alternative, which the USAF has erroneously identified as TFT operations for the year 2009,

rather than the program as it existed in 1978 (its last NEPA-compliant state) or alternatively,

as it exists today. Because a cumulative impacts analysis must consider the impacts of past

actions, as well as present and reasonably foreseeable future actions, regardless of what time

frame is used for the no-action alternative, the USAF is obligated to fully evaluate the full range

of environmental impacts that have been foisted upon the affected community without any NEPA

analysis since 1978. By failing to do so, the Final EA dramatically understates the true impact

that the TFT activities have had and continue to have on the Tucson population living and

working in the DMAFB flight pattern.

76. In a response to a comment regarding the inadequate cumulative impacts

analysis set forth in the Revised Draft EA, the Final EA appears to acknowledge that its

analysis does not comply with the NEPA requirement but states that [t]he Air Force

believes the cumulative impact analysis is sufficient to comply with the spirit and intent of

CEQ regulations. Final EA p. 1-17 (emphasis added). That is not what the law requires.

77. Because the USAF failed to fully evaluate the cumulative impacts of the

proposed action on the human environment, the Final EA and FONSI are arbitrary and

capricious, an abuse of discretion and contrary to law.

SECOND CLAIM FOR RELIEF

FAILURE TO ADEQUATELY EVALUATE NOISE IMPACTS



79. Agencies are obligated under NEPA to insure the professional integrity, including

scientific integrity, of the discussions and analyses in their documentation. 40 C.F.R. 1502.24.

80. In evaluating noise impacts on the community in the Final EA, the USAF has

fallen short of this requirement in several respects.


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81. First, the Final EA relies upon assumptions underlying the day-night average

sound level (DNL) which have a very high likelihood of changing, thus significantly

affecting the DNL projections and potentially changing the analysis which forms the basis of

the conclusions of the FONSI.

82. A major assumption was based upon a 2007 draft update (adjusted to 2009

levels) of the AICUZ Study for DMAFB that was last completed in 1992. This highly

technical 2007 Noise Study (adjusted) was difficult for the untrained public to understand.

Further, an official update of the 1992 AICUZ Study is years overdue yet was still in draft

form when the Final EA was released.

83. Second, the Final EA relies only on DNL projections to evaluate noise impacts.

For environments affected by short-duration, high sound exposure level events such as aircraft

noise, DNL analysis fails to describe the most serious impacts. Yet, the Final EA refused to

consider supplemental metrics, despite recent guidance from the DOD recognizing the

limitations of DNL, and urging Military Services to supplement DNL with other

methodological approaches in evaluating noise impacts. As the DOD advises in its 2009

guidance:

While the Federal agencies have accepted DNL as the best metric

for land use compatibility guidelines, reducing the description of

noise exposure to a single value of DNL may not help the public

understand noise exposure. Simply looking at the location of

their home on a DNL contour map does not answer the important

questions: how many times airplanes fly over, what time of day,

what type of airplanes, or how these flights may interfere with

activities, such as sleep and watching television. The number

and intensity of the individual noise events that make up DNL

are critically important to public understanding of the effects of

noise around airports. What is needed is a better way to

communicate noise exposure in terms that are more easily

understood. Supplementing DNL with additional metrics will

help the public better understand noise exposure.

Department of Defense Noise Working Group, Improving Aviation Noise Planning,

Analysis and Public Communication with Supplemental Metrics (December, 2009) at 2-1.


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84. In refusing to consider supplemental metrics in its noise impacts analysis, the

Final EA states only that additional metrics are recommended but not required by the DOD,

and offers no explanation as to why the USAF chose to ignore the DOD recommendation.

85. Third, the Aircraft Noise Analysis offered to support the Final EA uses two of

the three models from the NOISEMAP suite of noise models. The Final EA claims that

models are routinely verified by the Air Force (Final EA at 4-1). However, this statement

is at odds with information received by plaintiff Gary Hunter from DMAFBs Captain

Osborne and Civil Engineer Joe Doyle on the day of the deadline for submitting comments.

There is no evidence that NOISEMAP used in the Final EA has been verified.

86. Finally, the Final EA also fails to identify appropriate mitigation. The 70-74

dB zone is an area which particularly commands attention in terms of mitigation. While

adoption of mitigation measures is not a requirement of the law, identification and analysis

of such measures is part of the required analysis.

87. Because the USAF failed to fully evaluate the noise impact of the proposed

action on the human environment, the Final EA and FONSI are arbitrary and capricious, an

abuse of discretion and contrary to law.

THIRD CLAIM FOR RELIEF

FAILURE TO ADEQUATELY EVALUATE IMPACTS ON CHILDREN



89. Executive Order 13045 (Protection of Children) (EO 13045) requires an

assessment of health risks and safety risks that may disproportionately affect children.

90. The impact of noise on the cognitive development of children has been recognized

in the scientific literature. For example, a 2011 study by the World Health Organization (and

included in Plaintiffs comments) addressed at length the adverse impact that airport noise in


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particular has on the cognitive development of children. "Burden of disease from environmental

noise: Quantification of healthy life years lost in Europe," pp. 45-53 (WHO Study).

91. EPA has advised in a 2012 memorandum regarding Addressing Childrens Health

through Reviews Conducted Pursuant to the National Environmental Policy Act and Section 309

of the Clean Air Act, that NEPA documents, including environmental assessments, should

consider the impact that noise can have on childrens health and learning, especially when it

occurs near homes, schools, and daycare centers.

92. The Final EA states that [s]tudies show that noise can interfere with student

learning show impacts [sic] when the outside noise levels are greater than 65 dBA; however,

no schools are located within the 65 dBA. Final EA at 4-23.

93. The noise impacts upon children, however, are not limited to noise experienced

in the school or daycare setting. The impact on children living within the flight patterns

must also be taken into account. Much of the noise contour identified in the Final EA

extends over residential neighborhoods. According to the Final EA, up to 128 single family

residences and 4 multifamily residences are within the 65dBA DNL contour alone. Children

living in those residences will be adversely impacted by the noise and the Air Force has an

obligation under NEPA and EO 13045 to undertake a meaningful evaluation of the nature

and extent of those impacts.

94. Nor is the impact limited to children within the 65dBA DNL contour. Impacts

to health are experienced at lower levels as well. The WHO study found that levels as low as

30 dBA could disturb sleep and result in documented health impacts. See WHO Study,

Table 4.1 Ranges for the relationship between nocturnal noise exposure and health effects in

the population, p. 58.

95. The Final EA completely ignored the 2011 WHO Study and the EPA

memorandum as well as other studies noted by various other commenters. It also failed to


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address impacts on children living both within the 65dBA DNL contour, and children living

outside the contour but within the flight paths.

96. Because the Final EA fails to even address the potential health impacts that the

proposed action would have on children living within the flight pattern, it fails to comply

with EO 13045 and NEPA; as a result, the Final EA and FONSI are arbitrary and capricious,

an abuse of discretion and contrary to law.

FOURTH CLAIM FOR RELIEF

FAILURE TO ADEQUATELY EVALUATE HEALTH IMPACTS GENERALLY



98. In their Comment Letter to the Revised Draft EA, Plaintiffs raised the issue of

health impacts of the proposed action, and in particular, the heath impact of noise.

99. In their comments to the Revised Draft EA, Plaintiffs alerted the USAF to a

2013 study by the Harvard School of Public Health and Boston University School that analyzed

noise impacts from 89 airports in the United States and utilized data for approximately six million

study participants, Correia, Andrew W., Peters, Juenette L., Levy, Jonathan, Melly, Steven,

Dominici, Francesca, Residential Exposure to Aircraft Noise and Hospital Admissions for

Cardiovascular Diseases: Multi-airport Retrospective Study, BMJ 2013; 347:f5561 (2013

Harvard Noise Study).

100. In the 2013 Harvard Noise Study, noise levels were estimated at the centroid of

each census block surrounding each of the 89 airports out to a minimum of 45 dB . . . . The

study found a statistically significant association between exposure to aircraft noise and risk of

hospitalization for cardiovascular diseases among older people living near airports. This relation

remained after controlling for individual data, zip code level socioeconomic status and

demographics, air pollution, and roadway proximity variables. 2013 Harvard Noise Study at p.

6.


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101. Plaintiffs also referenced a study of individuals living in the vicinity of Heathrow

Airport in London that had reached similar conclusions at about the same time as the American

study. Hansell, Anna, Blangiardo, Marta, Fortunato, Lea, Floud, Sarah, Kees de Hoogh, Frecht,

Daniela, Ghosh, Rebecca, Laszlo, Helga, Pearson, Clare, Beale, Linda, Beevers, Sean, Gulliver,

John, Best, Nicky, Richardson, Sylvia, Elliott, Paul, Aircraft noise and cardiovascular disease

near Heathrow airport in London: small area study. BMJU 2013: 347:f5432.

102. In the Final EA, the USAF states, [t]he impact of aircraft noise on physical and

mental health has been the subject of numerous studies. Studies have examined impacts from

various sound levels and length of exposure, with some studies indicating that there is a

relationship between aircraft noise and aspects of physical and mental health, but others showing

contradictory or inconclusive results. Final EA at 3-25 through 3-26.

103. The Final EA goes on to very briefly discuss a 2008 update to a 1985

Transportation Research Board/National Academy report (TRB report) substantiating

contradictory studies and a 2000 Federal Interagency Committee on Aviation Noise

(FICAN) report summarizing research on the effects of aircraft noise on classroom learning.

104. The Final EA concludes by stating that the TRB report and others report that

further research is needed to establish definitive causal relationships. Final EA at 3-27.

However, the Final EA totally ignores the 2013 Harvard Noise Study which provided a much

finer degree of analysis, controlling for many of the factors earlier studies had identified, as

well as other studies cited by Plaintiffs in their comment letter.

105. Agencies are free to reject critical comments on their analysis so long as

credible opposing views are identified and an agency explains why comments do not warrant

further agency response, citing the sources, authorities, or reasons which support the

agencys position. . . . (40 C.F.R. 1503.4); however, the USAF has an obligation under

NEPA to keep itself informed of the latest research results, including, but not limited to the

recent reports identified in Plaintiffs comment letter. (40 C.F.R. 1502.22(a)).


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106. [G]eneral statements about possible effects and some risk do not constitute a

hard look absent a justification regarding why more definitive information could not be

provided. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S.

Forest Service, 689 F.3d 1060 (9th Cir. 2012).

107. Because the Final EA fails to fully and adequately address the health impacts

its proposed action has on the Tucson residents living within the TFT flight pattern, the Final

EA and FONSI are arbitrary and capricious, an abuse of discretion and contrary to law.

FIFTH CLAIM FOR RELIEF

FAILURE TO USE AN APPROPRIATE NO ACTION ALTERNATIVE



109. In order to provide sufficient evidence and analysis for determining whether

to prepare an environmental impact statement, an EA must evaluate alternative actions. 40

C.F.R. 1508.9(a)(1) & (b).

110. In the Draft EA, the USAF considered four alternatives including a No Action

Alternative in its alternatives analysis. Draft EA at 2-2 through 2-3.

111. In their Comments on the Draft EA, Plaintiffs pointed out that because there was

no current NEPA-compliant decision authorizing overflights by aircraft other than A-10s, the No

Action alternative in the Draft EA was improperly defined. The only NEPA-compliant OSB

program was the one that was in existence in 1978. Consequently, they asserted that it, not the

program as it existedin violation of NEPAin 2009, should be used as the No Action

Alternative.

112. In the Revised Draft EA, the USAF continued to use 2009 as the No Action

Alternative. It argued that 2009 was a better no action alternative because it is similar to the

average number of annual sorties flown between 2002 and now. Revised Draft EA at 2-5.


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113. As Plaintiffs pointed out in their comments to the Revised Draft EA, there is

nothing in applicable law or guidance regarding the no action alternative that suggests that an

agency can take average activity over a twelve year period and call that the no action

alternative. In fact, the number of TFT sorties flown in 2009, 1408, is substantially greater than

the number of TFT sorties flown in more recent years (for example, according to the USAF,

there were 519 TFT sorties in 2013, 888 in 2012, and 782 in 2011). Using 2009 as a no-

action alternative deliberately understates the significance of the proposed increase.

114. In their comments to the Revised Draft EA, Plaintiffs suggested that if the USAF

did not use 1978 as the no action alternative, then the only acceptable alternative was to use the

current program as recommended by CEQ for ongoing programs. See Question 3, Forty Most

Asked Questions Concerning the Council on Environmental Qualitys National Environmental

Policy Act Regulations, 46 Fed. Reg. 18026 (March 23, 1981, as amended) See also Seattle

Audubon Society v. Lyons, 871 F. Supp. 129, W.D. Wash. 1994 (affirmed that the current

management was the correct no action alternative even though it was different from the

alternative chosen in the existing management plan, which had been held invalid by a court).

115. The analysis of the no action alternative under either scenario - 1978 or the

present - deserves full analytical treatment.

116. Because the Final EA fails to fully and adequately address an appropriate no

action alternative, the Final EA and FONSI are arbitrary and capricious, an abuse of

discretion and contrary to law.

SIXTH CLAIM FOR RELIEF

PUBLIC NOTICE/ENVIRONMENTAL JUSTICE



118. In the Final EA, the Air Force acknowledges, as it must, that a disproportionate

number of minority and low-income populations are affected by noise as compared to other


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populations in Tucson (Final EA, p. 3-22, Table 3-11). In fact, all but one of the adversely

affected census tracts has been determined to be a geographic area that is disproportionately

populated by minority or low income residents.

119. Executive Order 12898, Federal Actions to Address Environmental Justice in

Minority Populations and Low-Income Populations, February 11, 1994, and the

accompanying President Memorandum, include specific direction on environmental justice

within the context of NEPA. In particular, Section 5-5 on Public Participation and Access

to Information encourages federal agencies to translate crucial public documents, notices

and hearings for limited English speaking populations and directs agencies to work to ensure

that public documents, notices and hearings are concise, understandable and readily

accessible to the public.

120. The CEQs Environental Justice Guidance Under the National Environmental

Policy Act (December 10, 1997) provides more detailed guidance on integrating

environmental justice issues into the NEPA process on these points (CEQ Guidance, pp. 11-

13).

121. The EPA Guidance for Incorporating Environmental Justice Concerns in

EPAs NEPA Compliance Analyses, August, 1998, also addresses incorporating

environmental justice considerations into the NEPA process and provides even more detailed

recommendations on outreach to environmental justice communities, including providing

simultaneous translation of discussion at meetings, using local translators where possible,

translation of key documents in their entirety, establishing comment lines and many more

ideas. EPA EJ Guidance, p. 41, Exhibit 4.

122. Finally, USAFs own Guide for Environmental Justice Analysis with the

Environmental Impact Analysis Process (EIAP), Department of the Air Force, November

1997, states that, [p]ublic outreach and advertising of the process should be directed

specifically toward minority and low-income groups, as well as toward the general public, to


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encourage these groups to identify themselves and their concerns. This effort should include

coordination with federal, state, local, and tribal governments and agencies; local groups;

community leaders; and social agencies in the local community to identify target groups and

the channels (including non-English language where necessary) that would reach these

groups. Air Force EJ EIAP Guidance, p. 5, emphasis added.

123. The Air Force guidance goes on to discuss identifying various social service

agencies, religious organizations, public interest organizations and other such groups that

may be working directly with the affected communities and gives detailed guidance on doing

so. The Air Force guidance also states that:

All minority and low-income groups thus identified should be

specifically notified of the availability of any information

requesting input into the planning process and any subsequent

environmental justice documents available for review. . . .

Information should be presented in clear, nontechnical language.

It may be advisable to schedule separate, smaller scoping

meetings at community locations where minority and low-

income populations would feel more comfortable participating,

such as a church, school or community center.

Air Force EJ EIAP Guidance, p. 6.

124. Although the Final EA claims that the USAF reached out to the affected

communities, this statement is false both with respect to the original Draft EA and with the

Revised Draft EA.

125. The public notification for the availability of and the comment period on the

Draft EA was seriously flawed. In the Draft EA, the statement is made that, [s]imilar

notices were sent confirming the availability of the draft EA, in an attempt to provide

meaningful involvement of the low-income and minority populations. (Draft EA p. 4-15)

However, no notices were received by residents of the Julia Keen neighborhood. This was

confirmed by residents of the area as well as by an Air Force representative who confirmed


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to one of those residents that a mistake had been made in the text of the Draft EA that would

be corrected in the final EA.

126. A request was made to translate at least the executive summary of the Draft EA

into Spanish, given the high preponderance of Spanish-speaking residents in the most

directly affected neighborhoods. In response the USAF translated the executive summary (5

pages of 144 pages) that it posted on the DMAFB website on the last day of the initial

comment period.

127. No fliers or post cards advising of the release of the Revised EA were directed

to the Julia Keen neighborhoodthe neighborhood most directly affected. Rather, the

USAF relied almost exclusively on internet notifications and the DMAFB website, even

though low income minority communities are less likely to have internet access.

128. The only Spanish translation prepared in connection with the Revised EA was

of the proposed FONSI.

129. These efforts were simply insufficient to allow for meaningful participation by

the residents that the USAF admits are disproportionately affected by the proposed action

and failed to comply with the federal requirements regarding environmental justice.

130. Executive Order 12898 also requires an analysis of the environmental effects,

including human health, economic and social effects of Federal actions on the minority and

low income communities being affected by the proposed action.

131. The Sample Environmental Justice Analysis found in the Air Force

Guidance focuses on noise from both aircraft and surface traffic. Air Force EJ EIAP

Guidance, Appendix E, p. E-3.

132. The Final EA has no such analysis of either aircraft or surface noise, despite

the virtual quadrupling of the number of TFT flights on the impacted group of residents.


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133. Because the USAF failed to fully evaluate the environmental justice impacts of

the proposed action on the human environment, the Final EA and FONSI are arbitrary and

capricious, an abuse of discretion and contrary to law.

SEVENTH CLAIM FOR RELIEF

FAILURE TO PREPARE AN EIS



135. The purpose of the NEPA analysis is to ensure that the agency has conducted

an adequate assessment of the environmental impacts of the proposed action. In certain

circumstances, agencies may first prepare an EA to make a preliminary determination

whether the proposed action will have a significant environmental effect. If the EA

establishes that the agency's action may have a significant effect upon the environment, an

EIS must be prepared. If not, the agency must issue a FONSI accompanied by a convincing

statement of reasons to explain why a project's impacts are insignificant. Regardless of

whether an EA or EIS is prepared, however, the agency must demonstrate that it took a "hard

look" at the environmental consequences of the proposed action and that it considered all

foreseeable direct and indirect impacts.

136. Some of the factors considered in determining whether or not a project

significantly affects the human environment include the existence of impacts to public

health and safety, whether or not the effects are highly controversial, and whether the action

is related to other actions with cumulatively significant impacts. See 40 C.F.R. 1508.27.

137. A party seeking to show that an agency should have prepared an EIS instead of

a FONSI need not demonstrate that significant effects will occur, but rather must show only

that there are substantial questions whether a project may have a significant effect on the

environment.


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138. Here, there are a number of factors that support a finding that the action is

significant and requires an EIS:

a. The proposed action has the potential to have a significant effect on public

health and safety.

b. The proposed action is controversial. The USAFs decision to ignore

supplemental metrics when evaluating noise impacts is contrary to recent guidance

from the DOD.

c. The proposed actions effect on the human environment is highly uncertain.

139. The USAFs FONSI was arbitrary and capricious, an abuse of discretion,

contrary to law and not supported by the record.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that judgment be entered in favor of

the Plaintiffs and against defendants as follows:

1. A Declaratory Judgment finding that defendants actions were arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law and that:

(a) USAF actions are in violation of NEPA;

(b) The Revised EA was inadequate as a matter of law it failed to take the

required hard look at the impacts of the proposed action,

2. A Mandatory Injunction requiring the USAF to prepare an EIS that fully and

adequately evaluates all of the impacts of the proposed action,

3. Award Plaintiffs their costs and reasonable attorneys fees.

4. Award such other and further relief as the Court deems just and equitable.


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Respectfully submitted this 22nd day of January 2016

Arizona Center for Law

In the Public Interest

P.O. Box 41835

Tucson, AZ 85717

s/Joy E. Herr-Cardillo

Joy E. Herr-Cardillo Timothy M. Hogan



NATURE OF THE ACTIONJURISDICTION and VENUEPARTIESSTATUTORY FRAMEWORKTHE NATIONAL ENVIRONMENTAL POLICY ACTADMINISTRATIVE PROCEDURE ACT

ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEFFIRST CLAIM FOR RELIEFFAILURE TO EVALUATE CUMULATIVE IMPACTS

SECOND CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE NOISE IMPACTS

THIRD CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE IMPACTS ON CHILDREN

FOURTH CLAIM FOR RELIEFFAILURE TO ADEQUATELY EVALUATE HEALTH IMPACTS GENERALLY

FIFTH CLAIM FOR RELIEFFAILURE TO USE AN APPROPRIATE NO ACTION ALTERNATIVE

SIXTH CLAIM FOR RELIEFPUBLIC NOTICE/ENVIRONMENTAL JUSTICE

SEVENTH CLAIM FOR RELIEFFAILURE TO PREPARE AN EIS

RELIEF REQUESTEDFinal Complaint without verification.pdfNATURE OF THE ACTIONJURISDICTION and VENUEPARTIESSTATUTORY FRAMEWORKTHE NATIONAL ENVIRONMENTAL POLICY ACTADMINISTRATIVE PROCEDURE ACT








RELIEF REQUESTED

Final Complaint without verification.pdfNATURE OF THE ACTIONJURISDICTION and VENUEPARTIESSTATUTORY FRAMEWORKTHE NATIONAL ENVIRONMENTAL POLICY ACTADMINISTRATIVE PROCEDURE ACT








RELIEF REQUESTED

Documents

Lawsuit filed against Davis-Monthan by Tucson residents