NEPA FONSI Does Not Preclude NPATMA “Significant Adverse Impacts” Finding for Air Tour Bans

I. Introduction

Adams v. FAA (10th Cir. Mar. 3, 2026) arises from the Federal Aviation Administration (FAA) and National Park Service (NPS) issuance of an Air Tour Management Plan (ATMP) for Bandelier National Monument under the National Parks Air Tour Management Act of 2000 (NPATMA), 49 U.S.C. § 40128. Petitioner Bruce Adams, doing business as Southwest Safaris, is a long-time commercial air tour operator who had operated flights over Bandelier under interim authority while the agencies developed the ATMP.

The final ATMP (Feb. 29, 2024) adopted a complete prohibition on commercial air tours over Bandelier. The key dispute on review was whether NPATMA allows such a prohibition absent a finding of “significant adverse impacts,” and whether the agencies’ NEPA “Finding of No Significant Impact” (FONSI) foreclosed any NPATMA “significance” finding. Adams also raised assorted APA, NEPA, NHPA, and constitutional arguments.

II. Summary of the Opinion

The Tenth Circuit denied the petition for review. The court held:

  • NPATMA requires a finding of “significant adverse impacts” to justify restrictions in an ATMP (including prohibitions).
  • A NEPA FONSI (no “significant” impacts for NEPA purposes) does not necessarily mean there are no “significant adverse impacts” under NPATMA.
  • Even though the Record of Decision (ROD) did not explicitly label impacts “significant” under NPATMA, the agencies’ reasoning path to NPATMA-significance was reasonably discernible from the ROD’s repeated, detailed findings about adverse cultural impacts identified through tribal consultation.
  • Additional APA/NEPA/NHPA attacks failed (often due to inadequate development), and constitutional challenges were forfeited for failure to raise them before the agencies (administrative exhaustion) and were also inadequately briefed.

III. Analysis

A. Precedents Cited

1. Jurisdiction, finality, and reviewability

  • Badger Helicopters Inc. v. FAA, 154 F.4th 902 (8th Cir. 2025): cited to confirm courts of appeals have jurisdiction under 49 U.S.C. §§ 46110 and 40128(b)(5) to review a final ATMP.
  • Colo. Farm Bureau Fed'n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir. 2000): used for the principle that non-final agency materials (e.g., draft plans/EAs) are not reviewable final agency action.

2. Statutory interpretation and the post-Loper Bright landscape

  • Seven Cnty. Infrastructure Coal. v. Eagle County, 605 U.S. 168 (2025): cited for de novo review of an agency’s statutory interpretation and for NEPA’s procedural character.
  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): central to the court’s framing—no deference is owed to agency legal interpretations; statutory interpretation is for courts to decide.
  • 3484, Inc. v. NLRB, 137 F.4th 1093 (10th Cir. 2025): cited as circuit confirmation that, after Loper Bright Enters. v. Raimondo, deference is no longer owed on legal questions.
  • Conrad v. Phone Directories Co., 585 F.3d 1376 (10th Cir. 2009), Env't Def. v. Duke Energy Corp., 549 U.S. 561 (2007), West Virginia v. EPA, 597 U.S. 697 (2022), and Russello v. United States, 464 U.S. 16 (1983): collectively supply the contextual canon—similar words across statutes are not presumed to mean the same thing; context counts.

3. NEPA significance doctrine and agency “path” review under the APA

  • Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220 (10th Cir. 2002), and Ctr. for Biological Diversity v. U.S. Dep't of the Interior, 72 F.4th 1166 (10th Cir. 2023): invoked to state NEPA “significance” turns on context and intensity.
  • Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (2004): cited regarding NEPA terminology (including “significance”) as a term-of-art context.
  • Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983): supplies core APA principles: uphold only on the agency’s stated reasons; no post hoc rationalizations; arbitrary-and-capricious framework.
  • Ballard v. Comm'r of Internal Revenue, 544 U.S. 40 (2005): cited for “whole record” review.
  • Garland v. Ming Dai, 593 U.S. 357 (2021), and Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016): anchor the “less than ideal clarity” rule—agency action may be upheld if the agency’s path may reasonably be discerned and the explanation is “clear enough.”

4. Exhaustion, waiver, and pro se limits

  • Gilmore v. Weatherford, 694 F.3d 1160 (10th Cir. 2012), and Darby v. Cisneros, 509 U.S. 137 (1993): for the general expectation of exhaustion in APA challenges.
  • W. Watersheds Project v. U.S. Bureau of Land Mgmt., 76 F.4th 1286 (10th Cir. 2023), with McCarthy v. Madigan, 503 U.S. 140 (1992), and Harline v. DEA, 148 F.3d 1199 (10th Cir. 1998): for the requirement that parties “alert” the agency to issues (including constitutional objections) so the agency can meaningfully consider them.
  • United States v. Pinson, 584 F.3d 972 (10th Cir. 2009), and Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): pro se filings are construed liberally, but courts do not act as advocate or craft arguments.
  • Harsco Corp. v. Renner, 475 F.3d 1179 (10th Cir. 2007), Merryfield v. Jordan, 584 F.3d 923 (10th Cir. 2009), Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998), United States v. Clay, 148 F.4th 1181 (10th Cir. 2025), and Menzies v. Powell, 52 F.4th 1178 (10th Cir. 2022): inadequately briefed or perfunctory arguments are waived.
  • United States v. Sineneng-Smith, 590 U.S. 371 (2020), and Greenlaw v. United States, 554 U.S. 237 (2008): courts are neutral arbiters and rely on parties to frame issues.

B. Legal Reasoning

1. NPATMA requires significance, but NEPA significance is not the same inquiry

The court first accepted (and the agencies conceded) that NPATMA’s text makes “significant adverse impacts” the trigger for ATMP mitigation or prevention measures. It then separated the two “significance” regimes:

  • NPATMA focuses on significant adverse impacts on natural and cultural resources, visitor experiences, and tribal lands.
  • NEPA asks whether a major federal action will have a significant effect on the quality of the human environment.

Using contextual canons (e.g., Env't Def. v. Duke Energy Corp.; West Virginia v. EPA; Russello v. United States), the court concluded Congress used “significant” in different statutory schemes with different objects, and thus the standards can diverge. The court’s example—noise or presence that materially disrupts tribal ceremony/privacy and the cultural landscape—illustrated how an impact can be NPATMA-significant even if it does not rise to NEPA significance under intensity/context considerations.

2. The “reasonably discernible path” saved the ATMP despite imperfect drafting

The ROD included a NEPA subsection stating impacts did not rise to NEPA significance, which the petitioner treated as a confession that NPATMA significance was absent. The court rejected that reading as a category error: the NEPA FONSI was explicitly framed “under NEPA.”

The harder problem was that the ROD did not expressly state: “air tours cause significant adverse impacts under NPATMA.” Applying Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co. (no post hoc rationalization) alongside Garland v. Ming Dai and Encino Motorcars, LLC v. Navarro (uphold if the path is reasonably discernible), the court found the agencies’ NPATMA significance determination sufficiently traceable in the ROD’s repeated findings that:

  • Tribes “unequivocally” described air tours as inappropriate and adversely affecting cultural resources and privacy during ceremonies.
  • The cultural landscape—including the sky above—was considered sacred by many tribes.
  • Air tours’ auditory intrusion and “physical presence” were found to denigrate sacred space and disrupt cultural and religious practices.
  • Given these impacts, allowing any air tours was deemed inconsistent with Bandelier’s purposes and values, including tribal privacy.

In short, although the agencies’ articulation was “less than ideally clear,” the court held that the record made it reasonably discernible that the agencies treated the documented cultural harms as “significant adverse impacts” under NPATMA and chose a total prohibition as the effective preventive measure.

3. Disposition of remaining challenges

  • APA arbitrariness / “physics and math” arguments: the court declined to reach the merits due to inadequate development and failure to engage the agencies’ cultural-impact rationale; it also emphasized deference to agency factfinding (as contrasted with de novo legal interpretation post-Loper Bright Enters. v. Raimondo).
  • NEPA and NHPA: the court rejected claims that noise testing was a legal prerequisite; it observed the agencies prepared an EA and conducted consultations (including with a state historic preservation officer and tribes) and found no APA-level deficiency on the arguments presented.
  • Constitutional attacks on NPATMA (nondelegation, First Amendment, Commerce Clause): forfeited for failure to raise them during the administrative process under W. Watersheds Project v. U.S. Bureau of Land Mgmt., and also inadequately briefed.
  • Other constitutional claims (due process, equal treatment, ex post facto): largely waived for perfunctory briefing; in dicta, the court noted that NPATMA’s notice-and-comment/public meeting structure and the agencies’ engagement with Adams weighed against any procedural due process concern, referencing Camuglia v. The City of Albuquerque and Mathews v. Eldridge.

C. Impact

  • Decoupling “significance” across statutes: The decision establishes (at least within the Tenth Circuit) that an agency may issue a NEPA FONSI while still concluding impacts are “significant” for NPATMA purposes. Practically, litigants cannot treat a NEPA FONSI as dispositive against NPATMA restrictions.
  • Drafting discipline for ATMPs: Although the agencies prevailed, the court highlighted the record’s “imperfect” clarity. Future ATMPs will likely be drafted to include an explicit NPATMA “significant adverse impacts” finding to reduce vulnerability under State Farm-style review.
  • Tribal consultation as a factual foundation: The court’s acceptance of cultural/privacy impacts—independent of noise intensity or duration—signals that consultation evidence can carry “significance” under NPATMA even where quantitative environmental metrics do not.
  • Issue preservation in ATMP rulemaking records: The exhaustion ruling underscores that operators must raise constitutional and other objections during the administrative process, not for the first time on judicial review.

IV. Complex Concepts Simplified

  • ATMP (Air Tour Management Plan): A site-specific plan created jointly by FAA and NPS to manage (limit, condition, or prohibit) commercial air tours over a park unit.
  • NPATMA “significant adverse impacts”: A threshold focused on harms to park resources, visitor experience, and tribal lands/cultural interests; it can include disruption of ceremonies, privacy, sacred sites, and cultural landscapes—even if the action is brief or not “environmentally significant” in NEPA terms.
  • NEPA “significance” / FONSI: NEPA is a procedural disclosure statute. Agencies prepare an Environmental Assessment (EA) to decide whether a full Environmental Impact Statement (EIS) is needed. A FONSI means the agency determined an EIS is not required—not that there are no adverse effects, and (here) not that NPATMA significance cannot exist.
  • “Reasonably discernible path” review: Courts will not invent reasons the agency never gave, but they may uphold a decision if the agency’s logic can be followed from the record, even if not perfectly or explicitly stated.
  • Administrative exhaustion: To preserve an argument for court, a participant must first present it to the agency with enough clarity for meaningful consideration.

V. Conclusion

Adams v. FAA confirms NPATMA requires “significant adverse impacts” to justify ATMP restrictions, but it also makes clear that NPATMA’s significance inquiry is not synonymous with NEPA’s “significant effects” inquiry. A NEPA FONSI does not foreclose NPATMA-based restrictions, including a complete ban, where the record—especially tribal consultation evidence—supports a reasonably discernible finding of significant adverse cultural impacts. The decision also reinforces two practical lessons for future ATMP litigation: agencies should state NPATMA significance explicitly, and regulated parties must preserve statutory and constitutional objections in the administrative record.