American Aviation, Inc.; Larry D. Wright v. U.s. Department of Transportation; Federal Aviation Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN AVIATION, INC.; LARRY
D. WRIGHT,
Petitioners,
v.
U.S. DEPARTMENT OF
TRANSPORTATION; FEDERAL
AVIATION ADMINISTRATION,
Respondents.
No. 10-72772
TRAN No. 13-08-01
MEMORANDUM*
On Petition for Review of an Order of the
Dept. of Transp., NTSB
Argued and Submitted November 15, 2011
San Francisco, California
Before: THOMAS, GOULD, and BYBEE, Circuit Judges.
Petitioners American Aviation, Inc. and Larry D. Wright (collectively
“American”) appeal from the Federal Aviation Administration’s (“FAA”) Final
Agency Order on the Initial Interim Operating Authority (IOA) Allocation
FILED
FEB 14 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(“Order”) denying American additional interim operating authority (“IOA”) over
Glen Canyon National Recreational Area. We have jurisdiction under 49 U.S.C.
§ 46110(a), and we affirm.
As an initial matter, the FAA argues that American waived its right to seek
any increase in IOA and therefore cannot claim error with the distribution of IOA
on appeal. The government, however, is incorrect because it misapprehends the
scope of American’s waiver. During the administrative hearing, American
indicated that it was forgoing any claim to IOA based “on operations of Sunrise
Aviation,” informing the Hearing Officer that he could “take any interest
[American] might have previously claimed on that off the table.” The Hearing
Officer asked American whether it was referring to its initial IOA application, in
which American sought 11,350 flights over Glen Canyon. American confirmed
that it was withdrawing any claim to IOA requested in that application other than
the 462 it received in 2003. Although American may have waived its right to IOA
based on this application, it did not waive its right to an overall increase in IOA.
American contends that the FAA acted arbitrarily and capriciously in its
allocation of IOA because the FAA allocated significantly greater IOA to
American’s competitors than to American. The FAA’s allocation of IOA was not
arbitrary and capricious, but was based on the evidence presented to it and made in

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accordance with the statutory limitations in place. Under the National Park Air
Tour Management Act of 2000 (“Air Tour Act”), the FAA lacks authority to
increase the number of operations for any operator above the number of IOA
allocations that was originally granted to the operator unless both the FAA and
National Park Service (“NPS”) concur in the increase. See 49 U.S.C.
§ 40128(c)(2)(B). In 2003, American applied for IOA over Glen Canyon, and the
FAA allocated 462 flights to American. ERII, Tab 8 at FAA 001751. Without the
participation of the NPS, the FAA lacked authority to increase IOA allotments for
American (or any other carrier) over these original amounts—a limitation noted by
the FAA in its Order. Consequently, when American withdrew its claim to
additional IOA based on the operations of Sunrise Airlines or based on its original
application for IOA, the FAA lacked authority to increase American’s IOA without
the concurrence of the NPS. Because the FAA was prevented by statute from
increasing American’s IOA without NPS approval—but was not precluded from
decreasing its competitors’ IOA, which it did—the FAA’s conduct was not
arbitrary or capricious. See W. Radio Servs. Co., Inc. v. Glickman, 113 F.3d 966,
971 (9th Cir. 1997) (finding no error where “the [Forest] Service followed the
required procedures”).

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American next claims that the FAA erred by allocating IOA using
procedures other than those established by the Air Tour Act, 49 U.S.C. § 40128.
The Air Tour Act permits the FAA to modify “interim operating authority based on
experience if the modification improves protection of national park resources and
values” without requiring the use of any specific procedures. 49 U.S.C.
§ 40128(c)(2)(I). In modifying the allocation of IOA here, the FAA credited
NPS’s intent to “improve[] the protection of national park resources,” and noted
the NPS’s concurrence in maintaining the status quo as an “appropriate
modification to address the particular circumstances involved with this
Investigation.” There was no error in the FAA’s conduct.
Finally, American argues that the FAA was unreasonably delaying
resolution of American’s application for an increase in IOA and asked us to order
the FAA to act. But after this case was argued and submitted, the FAA determined
that an increase was unwarranted because the NPS found that American’s
“proposed net increase of 7,034 flights per year would [not] improve the protection
of park resources and values.” Dkt. 33. As we have been advised the FAA has
now resolved American’s application, American’s request is moot.
PETITION DENIED.

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