Court hearing set in case over shuttle flights
By Kerry Drohan, Globe Staff, 7/29/2001

BEDFORD - In the case of Save Our Heritage, et al v. Federal Aviation
Administration, opposing attorneys will appear Thursday before a three-judge
panel of the US First Circuit Court of Appeals in Boston and have 15 minutes
each to present legal arguments.

The political arguments may go on for years.

The ''petition for review'' of the FAA's Oct. 27, 2000, decision allowing
Shuttle America to fly from Hanscom Field to New York's LaGuardia Airport is
being watched closely for political implications far beyond the local level,
according to parties on both sides.

''Everyone wants to fly, but no one wants an airport,'' said Mark Cestari,
vice president of marketing for Shuttle America. ''This kind of litigation
and political interference could be problematic throughout the whole
country - not just at Hanscom. From a public policy standpoint, it's a
slippery slope. Air travel is becoming unbearable because of delays, and the
problem won't go away. This is one local application, but, potentially, it
could set some very bad precedents.''

Kay Tiffany of Lexington, who in 1990 helped found the activist group
Safeguarding the Historic Hanscom Area's Irreplaceable Resources, called the
case ''a significant milestone'' in the ongoing battle about commercial air
service at Hanscom.

''Win or lose, this appeal represents the turning of a corner in this
fight,'' Tiffany said. ''The case symbolizes that in addition to having
expressions of concern from people in the historic community and the
political community, they have taken the actual step of signing on. This
lays to rest Massport's insinuation that the opposition is from a bunch of
well-to-do people in the suburbs. We have a broad-based group of responsible
people who are saying there's a problem here.''

The FAA is joined in the case by Massport and Shuttle America. The ''et al''
on the other side includes the activist group, the towns of Lincoln,
Lexington, Concord, and Bedford, Orchard House, The Walden Woods Project,
The Concord Museum, the Minute Man National Park Association, and the Ralph
Waldo Emerson Society. Friend of the court briefs have been filed by the
National Trust for Historic Preservation, US Representative Marty Meehan, a
Lowell Democrat, and Secretary of State William Galvin, representing the
Massachusetts Historical Commission. The commission maintains that the FAA
did not provide sufficient documentation about impact on historic sites to
justify its decision.

Bedford's involvement is an example of the intense political stakes. Last
December, selectmen opted out of the appeal, citing failed litigation in the
past. But residents petitioned for a special Town Meeting in January, then
overrode the selectmen, voting 505-128 to have Bedford join.

The petitioners argue that in allowing the Hanscom-LaGuardia service, the
FAA did not conduct a proper review of impact, and therefore violated its
obligations under the National Historic Preservation Act, the National
Environmental Policy Act, and the Department of Transportation Act.

''Our case focuses on the FAA as a federal agency that appears to be
engaging in a pattern of disregarding its environmental and historic
preservation responsibilities with respect to airport expansion issues,''
said Andrea Ferster, the lead attorney for the petitioners. ''Even when it
began to address its responsibilities in some fashion, the FAA persisted in
viewing the impacts as isolated - just the LaGuardia service. It never
acknowledged that its series of approvals had set in motion virtually
unlimited expansion at Hanscom Field.

''That kind of treatment would ultimately allow the FAA to incrementally
radicalize the airport environment and never look at the cumulative impact.
The legal issue is, can they do that?''

The petitioners seek to have the FAA decision reversed and remanded to the
agency for compliance with the federal laws.
Unlike Ferster, the US government attorneys are prohibited from talking
about a case, but the main FAA argument is summarized in its brief:

''Because the FAA has no analogous authority to approve the operating
specifications of the vast majority of the air traffic at Hanscom - general
aviation and, to a lesser extent, military aviation - petitioners instead
focus upon the FAA's decisions permitting reinitiation of commercial service
at Hanscom and urge this court to require greater federal participation in
environmental review and regulation,'' Department of Justice attorney M.
Alice Thurston states. ''However, the specific order on review, the October
2000 approval of Shuttle America's OpSpecs adding LaGuardia Airport to its
destination cities, does not, in fact, cause the incremental impact about
which Hanscom's neighbors are concerned; any harm to the petitioners is a
result of the 1999 decision allowing Shuttle America to fly out of Hanscom.
As a result, reversing the 2000 order would not provide the relief sought by
SOH [Save Our Heritage].''

Shuttle America ceased flying to LaGuardia on June 15, largely because of
problems from bankruptcy. The carrier now operates seven round trips to
Trenton, N.J., and three to Buffalo, N.Y.

Cestari and Tiffany noted that interest in passenger service remains high,
citing possible proposals from Boston-Maine Airways and Midway Airlines.

''The interest in Hanscom by other carriers in the spring validated for many
people the reality that clearly there is a market there,'' Cestari said.
''The politicians are bowing to a group of people who are politically
well-connected, but the numbers demonstrate that there is a larger group of
people in the community who support commercial service.''

Cestari said Shuttle America would announce details of its restructuring
''within a couple of weeks'' that would put the carrier back in the black.

''Our flights to Trenton and Buffalo are packed,'' he said. ''The peak-hour
flights are essentially sold out for the summer. We are here to stay.''

Tiffany said activists are firm in opposing commercial service, and no
matter what the outcome of the legal case, it helps the political struggle.

''The historical community is alerted, informed, and alarmed,'' she said.
''That won't go away. And federal officials now have it on their radar
screens.

''From here, we'll fight every incremental change, through legal channels if
necessary, and always in the court of public opinion,'' she said.


This story ran on page W1 of the Boston Globe on 7/29/2001.
Copyright 2001 Globe Newspaper Company.
==========
**NOTICE:  In accordance with 17 U.S.C. Section 107, this material is
distributed without profit to those who have expressed a prior interest in
receiving the included information for research and educational purposes.**
==========