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Outagamie County v. Civil Aeronautics Board

January 18, 1966

OUTAGAMIE COUNTY, WISCONSIN, CITY OF APPLETON, WISCONSIN
v.
CIVIL AERONAUTICS BOARD, CITY OF CLINTONVILLE, WISCONSIN V. CIVIL AERONAUTICS BOARD, CITY OF ASHLAND, WISCONSIN, COUNTY OF ASHLAND, WISCONSIN, V. CIVIL AERONAUTICS BOARD, STATE OF WISCONSIN, V. CIVIL AERONAUTICS BOARD, WINNEBAGO COUNTY, WISCONSIN, CITY OF OSHKOSH, WISCONSIN, NORTH CENTRAL AIRLINES, INC., INTERVENORS



Schnackenberg, Castle and Kiley, Circuit Judges.

Author: Kiley

KILEY, Circuit Judge:

The petitioners seek to have this court review*fn1 and set aside a Civil Aeronautics Board order*fn2 designating various single airports to serve two cities where previously each city had its own. This court permitted Winnebago County and the City of Oshkosh, Wisconsin, and North Central Airlines, Inc., to intervene. We affirm the order reviewed, and deny the petitions.

The challenged order arose out of the North Central Area Airline Service Airport Investigation,*fn3 which was instituted by the Board June 29, 1962, to determine, among other things, whether North Central's service should be provided through consolidated single airports at certain "pairs of points." Among these pairs were Clintonville -- Green Bay, Wisconsin; Ashland, Wisconsin -- Ironwood, Michigan; and Appleton -- Oshkosh, Wisconsin. The hearing examiner decided that each point in these "pairs" should retain, for the time being, its own airport. The Board reversed the examiner's decision and ordered that North Central's certificate of convenience and necessity be modified, in effect, to provide consolidated air service for the "pairs" at single airports in Green Bay, Ironwood and Oshkosh, and that its air service be abandoned at Ashland, Clintonville and Appleton.*fn4 The petitions before us followed.

I.

We think it is fair to state that all claims in the various petitions fall under two basic contentions: that there is no sufficient evidentiary basis for the Board's findings, which in themselves are inadequate and from which the Board drew unwarranted conclusions; and that the Board's decision failed to apply the statutory criteria properly, and is arbitrary since it is not founded on intelligible standards and is inconsistent with other decisions and policies of the Board and with controlling judicial precedent. Broader contentions are also made which we shall refer to hereinafter.

The Board "upon its own initiative" under 49 U.S.C. § 1371(g) instituted the pertinent investigation to determine whether the "public convenience and necessity" required alteration or amendment of North Central's certificate so as to provide service through a single airport for any of the three "pairs" of cities before us. In performing its duties the Board is required to consider, among other things, several factors or matters as "being in the public interest, and in accordance with the public convenience and necessity."*fn5

The order instituting the investigation*fn6 outlined the Board's purpose of determining whether consolidation of services to two separate cities at a single airport would, "without substantial inconvenience to the air passengers," produce overall area air service improvement by more economical operations, improved schedules and better service with larger planes. It stated that the distance between the paired cities would be the Board's "initial reference point," and that its initial focus had been on the "pairs" within fifty miles of each other, but later other considerations had been given "greater weight." The order also stated that, "only" as investigative and decisional guidelines, "certain fundamental factors . . . will be studied." These factors were set out: Airport Accessibility; Traffic; Airport Capabilities; and Cost.

The Administrative Procedure Act, Section 8(b), 5 U.S.C. § 1007(b), requires that decisions of the Board include the findings, conclusions and reasons therefor, and under Section 10(e), 5 U.S.C. § 1009 (e), the findings and conclusions shall be set aside if unsupported by substantial evidence.*fn7

II.

In the Ashland-Ironwood "pair" the examiner found each city "heavily dependent" upon air service for student, business, industrial and tourist transportation, and both "depressed areas" with deteriorated surface transportation and in need of air service to stimulate growth, especially of light industry and tourism. The Board agreed that Ashland passengers would be inconvenienced, but since Ashland was historically only a marginal generator of passenger traffic, the inconvenience would be "relatively minor." It found, however, that at Ironwood, about 45 miles and less than an hour away over an adequate road, the principal direction of traffic flow was to Chicago and for most Ashland passengers no "backhaul"*fn8 problem existed, and that although "some unfavorable impact" on Ashland's economy might result from abandoning service at its airport, the adverse effect would not be significant.

Against these considerations the Board weighed the annual savings of about $28,000.00 to North Central, the subsidy savings of the federal government, and the obviation of an expenditure of $171,765.00 for airport improvement at Ashland, and concluded that consolidation of air service at Ironwood was required "in the public interest, and in accordance with public convenience and necessity."*fn9

III.

As to the Clintonville-Green Bay "pair," the Board stated that the examiner's determination rested essentially on the "preponderant weight" given to the factors of the air cargo generated at Clintonville, the adequacy of surface transportation, the effect of loss of air service upon Clintonville's industrial growth, and North Central's financial history from its Clintonville operations. The Board agreed that Clintonville's record as a generator of air cargo was properly accorded ...


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