United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 14, 2019               Decided March 10, 2020

                         No. 18-1173

                    STATE OF MARYLAND,
                        PETITIONER

                              v.

FEDERAL AVIATION ADMINISTRATION AND STEPHEN DICKSON,
       ADMINISTRATOR OF THE FEDERAL AVIATION
                  ADMINISTRATION,
                   RESPONDENTS


          On Petition for Review of Actions Taken
           by the Federal Aviation Administration


     W. Eric Pilsk argued the cause for petitioner. With him on
the briefs were Brian E. Frosh, Attorney General, Office of the
Attorney General for the State of Maryland, and Samatha R.
Caravello.

    Lane N. McFadden, Attorney, Federal Aviation
Administration, argued the cause for respondents. With him
on the brief were Jeffrey Bossert Clark, Assistant Attorney
General, U.S. Department of Justice, Eric Grant, Deputy
Assistant Attorney General, and J. David Gunter II, Attorney.

    Before: HENDERSON, TATEL and KATSAS, Circuit Judges.
                                 2
    Opinion for the Court filed by HENDERSON, Circuit Judge.

     KAREN LECRAFT HENDERSON, Circuit Judge: In 2015, the
Federal Aviation Administration (FAA or Agency) amended
three north-to-south approach paths to Ronald Reagan
Washington National Airport (Reagan National or Airport).
The State of Maryland (State)—believing the amendments
concentrated aircraft noise over its public lands—asks us to
vacate the new flight paths because the FAA failed to conduct
required environmental assessments before implementing
them. The State acknowledges that its petition was filed well
after the statutory sixty-day review window but claims it had
“reasonable grounds” to delay. We disagree.

                                 I

     Reagan National is managed by the Metropolitan
Washington Airports Authority (MWAA), an independent
agency composed of federal and local government
representatives, including three directors appointed by the
Maryland Governor.1 Due to the Airport’s location in the heart
of the densely populated National Capital Region, aircraft
noise is continual in its surrounding communities. Because
“[t]he aircraft and its noise are indivisible,” City of Burbank v.
Lockheed Air Terminal, Inc., 

, 628 (1973)
(quoting Am. Airlines, Inc. v. Town of Hempstead, 

, 230 (E.D.N.Y. 1967), aff’d, 

(2d Cir. 1968)),
aircraft noise can be relocated away from nearby residential
areas by rerouting arrivals and departures only. With little
unpopulated land in the area, “local communities have



    1
       A detailed explanation of how the National Capital Region’s
three major airports are managed and operated is set out in Citizens
Ass’n of Georgetown v. FAA, 

, 427–29 (D.C. Cir. 2018).
                                 3
encouraged use of the Potomac River corridor to reduce flights
over noise-sensitive areas” for decades. Resp’ts’ Br. 4–5.

     The FAA shoulders the burden of balancing “the safety of
aircraft and the efficient use of airspace,” 49 U.S.C.
§ 40103(b)(1), with the State’s noise concerns because “[t]he
United States Government has exclusive sovereignty of
airspace of the United States,” 

But it does
not regulate in a vacuum. Federal law—including, as relevant
here, the National Environmental Policy Act (NEPA),
42 U.S.C. § 4332(2)(C), the National Historic Preservation Act
(NHPA), 54 U.S.C. § 306108, and the Department of
Transportation Act, 49 U.S.C. § 303(c)—mandates that
environmental assessments precede certain major federal
actions, with aircraft noise among the factors the FAA must
consider in making the assessments. See 14 C.F.R. pt. 150.

    The FAA amended three approach paths into Reagan
National during 2015.2 That October, after the first two
amendments were published and had taken effect, the MWAA
established the Reagan National Airport Community Working
Group (Working Group) “in response to increasing community
concerns regarding aircraft noise affecting residential areas in
the District of Columbia, Virginia and Maryland along the
Potomac and Anacostia rivers.” Organizational Charter,

    2
       The RNAV (RNP) RWY 19 (RNAV RNP) and LDA Z RWY
19 (LDA Z) approaches were amended in April 2015 and later, in
December, the RIVER VISUAL RWY 19 Chartered Visual Flight
(River Visual) approach was amended. Pilots flying the River Visual
approach (by far the most common of the three) follow the Potomac
River and other ground landmarks “visually.” RNAV RNP follows
the River Visual approach path but enables equipped aircraft to use
navigational technology in order to more closely track certain
portions of it. LDA Z is a straight-line instrument approach, largely
over Maryland, that aircraft use in limited-visibility conditions.
                                4
REAGAN NAT’L CMTY. WORKING GRP. 1 (Oct. 28, 2015),
https://www.flyreagan.com/sites/default/files/reagan_national
_working_group_organizational_charter_revised_29oct_2015
.pdf. The Working Group was “designed . . . to move the noise
discussion beyond the airing of individual and neighborhood
complaints toward a cooperative effort to identify practical
solutions.” 

10, 2015—the day it implemented the last
of the three amendments—the FAA informed the Working
Group of all three amendments and “began assuring the public
that it would work cooperatively to implement further changes
to address noise concerns.” Pet’r’s Br. 37. The parties’ working
relationship started well but deteriorated over time. Unable to
agree on alternative flight paths, the State’s frustration
mounted and ultimately boiled over when, in April 2018,
Acting FAA Administrator Daniel Elwell, in response to a
letter from the Governor, informed the State that “the time for
Maryland to commence litigation . . . is long past” and that “[t]o
the degree any discussions we might have result in proposed
changes to air traffic routes or procedures, those would be new
Federal actions . . . .” J.A. 836. The State claims that the FAA’s
reply “created additional uncertainty and reasonably prompted
[it] to preserve its rights by filing this petition” on June 26,
2018. Pet’r’s Br. 43. Its petition alleges the FAA “provided no
public notice of the substance of the changes it was
contemplating, afforded no opportunity for public comment,
engaged in no modeling or assessment of potential noise
impacts, performed no analysis under NEPA, and made no
effort to comply with the NHPA or [the Department of
Transportation Act].” 

The FAA subsequently moved
to dismiss the petition as untimely and the State then moved to
amend its petition to include two additional versions of the
FAA’s amended approach procedures. Because timeliness is a
threshold issue, we address the FAA’s motion first.
                               5
                               II

     “Federal law requires that petitions seeking review of FAA
actions be filed within sixty days of the agency’s final order
unless the petitioner had ‘reasonable grounds’ for delay.”
Citizens Ass’n of Georgetown v. FAA, 

, 427 (D.C.
Cir. 2018) (quoting 49 U.S.C. § 46110(a)). Accordingly, we
must determine when the FAA’s orders became final. “First, to
qualify as final, an order must mark the consummation of the
agency’s decisionmaking process; and second, it must either
determine rights or obligations or be a source of legal
consequences.” 

(citing, inter alia, Bennett v. Spear,

, 177–78 (1997)) (brackets, quotation marks and
additional citations omitted).

     This part of our review is straightforward because the issue
is identical to the issue we confronted in Citizens Ass’n of
Georgetown and City of Phoenix v. Huerta, 

(D.C.
Cir. 2017). In those cases, we held that the FAA’s action
became final upon publication of the updated flight routes. See
Citizens Ass’n of 

; City of

. Here, the RNAV RNP and LDA Z
approaches were published in April 2015 and the River Visual
approach was published in December 2015. Notwithstanding
the State’s argument that the FAA delayed publishing the first
two amendments, it is undisputed that all three amendments
were final by December 2015. See Pet’r’s Br. 16–17.

     “Filing deadlines, replete throughout the United States
Code, promote prompt and final judicial review of agency
decisions and ensure that agencies and affected parties can
proceed free from the uncertainty that an action may be undone
at any time.” Citizens Ass’n of 

–
37. That Maryland did not file its petition within sixty days of
the FAA’s final action is an understatement, as well over nine
                                6
hundred days elapsed between December 10, 2015 and
June 26, 2018. The State’s case, therefore, hinges on whether
“reasonable grounds” justified its delay. See 49 U.S.C.
§ 46110(a).

     We have previously found reasonable grounds for delay in
few cases. First, in Paralyzed Veterans of Am. v. Civil
Aeronautics Bd., 

(D.C. Cir. 1985), rev’d on other
grounds, 

(1986), we found timely a petition filed
six months after the agency’s final rule—i.e., roughly four
months late—because the agency “explicitly left its rulemaking
docket open in order to receive additional comments from the
public,” 

n.82. Moreover, that petition was filed
within sixty days of the agency’s amended rule. 

Safe Extensions, Inc. v. FAA, 

(D.C. Cir. 2007),
we found reasonable grounds for delay when, following an
“uproar” in the affected industry, the FAA told the petitioner
and others to “ignore” its order, 

Most recently, in
City of Phoenix—the precedent on which the State chiefly
relies—we found reasonable grounds for filing a petition
roughly six months outside the statutory 

. Maryland argues that a “similar fact pattern [to City of
Phoenix] exists here” because the FAA “immediately signaled
that it was willing to work with the [Working] Group on
possible revisions” as soon as the new approaches were
implemented. Pet’r’s Br. 38–39. The State argues that
“petitioning for review soon after the . . . order might have shut
down dialogue between the petitioners and the agency” and
that treating its petition as untimely would “punish the
petitioners for treating litigation as a last rather than a first
resort.” City of 

; see also Pet’r’s Br.
37–38.

    Granted, in City of Phoenix the FAA did not expressly cast
doubt on the finality of its order as it did in Paralyzed Veterans
                                7
and Safe Extensions. And there, as here, the FAA displayed a
“pattern” of “serial promises” that it was considering the
petitioner’s noise concerns after altering the flight paths. City
of 

. But these similarities do not save
the State’s petition. The key distinction between this case and
City of Phoenix is the FAA’s near constant engagement with
petitioner City of Phoenix throughout the period between the
new flight paths’ implementation and the City’s late petition.
In City of Phoenix we emphasized that:

       The FAA repeatedly communicated—in an
       October public meeting, in a November letter,
       in a December public meeting, in a January
       letter, in a February decision to reconvene the
       Working Group, in an April letter, and in a May
       meeting with city officials—that the agency
       was looking into the noise problem, was open to
       fixing the issue, and wanted to work with the
       City and others to find a solution.

With one exception, each month the
FAA expressed its commitment to fix the noise problem
between its September order and the June petition. “This
pattern would certainly have led reasonable observers to think
the FAA might fix the noise problem without being forced to
do so by a court.” 

of Phoenix, we worried that rigidly
enforcing the deadline “would encourage the FAA to promise
to fix a problem just long enough for sixty days to lapse and
then to argue that the resulting petitions were untimely.” 

is quite different. Here, continuous FAA
engagement with the State did not occur. Throughout the more
than two and one-half years during which Maryland delayed
filing its petition, its communications with the FAA were
almost entirely self-initiated, sporadic and primarily through
                                 8
the Working Group. Even though the FAA actively
participated in the Working Group, see, e.g., J.A. 768 (FAA
presentation on Runway 19 arrivals), the Agency’s statements
at those meetings never suggested that it intended to amend the
challenged procedures further.

     Although reasonable grounds for delay can exist if an
agency’s words and actions reasonably call into question the
finality of its action, a petitioner cannot wait indefinitely for an
unresponsive agency, decide that “cooperation” has ceased and
the sixty-day review period has begun and finally petition for
review over two years out of time, as the State did here. See
Pet’r’s Br. 24–25 (“Given the uncertainty caused by the FAA’s
lack of response, and to preserve its ability to challenge the
FAA’s lack of environmental analysis before amending the
Runway 19 approach procedures, Maryland filed a petition for
review . . . .”); see also Eagle-Picher Indus., Inc. v. EPA, 

, 912 (D.C. Cir. 1985) (“[I]t is the responsibility of
petitioners to file for review within the period set by
Congress.”). Indeed, if not for the FAA’s terse reply to
Governor Hogan’s letter in 2018, the State’s theory suggests
that the sixty-day deadline may still not have expired, more
than four years after the approaches were altered.
Notwithstanding City of Phoenix incrementally expanded
“reasonable grounds,” it did not open the floodgates to petitions
filed years after final agency action. Because the State’s delay
was extreme, it lacks reasonable grounds for missing the sixty-
day deadline and its petition is therefore untimely.

     Finally, we note that here, as in City of Phoenix and
Citizens Ass’n of Georgetown, “[t]he FAA’s efforts . . . were
hardly a model of sound agency practice.” Citizens Ass’n of

. In each of these cases, the FAA
appears to have given short shrift to the required environmental
analyses and, in City of Phoenix—the only timely petition of
                               9
the three—we said so. 

–75. The sixty-day
window prescribed by 49 U.S.C. § 46110(a) is admittedly
short—especially for local governments and citizens groups,
the most likely challengers of altered flight paths—but is
nonetheless the deadline the Congress has imposed. At the
same time, we caution the FAA that the short review period is
a shield, not a sword. It serves the Federal Aviation Act’s
“delicate balance between safety and efficiency and the
protection of persons on the ground,” Helicopter Ass’n Int’l,
Inc. v. FAA, 

, 434 (D.C. Cir. 2013) (quoting City
of 

–39), by protecting the FAA from
uncertainty and inefficiency if, years down the road, its actions
are subject to challenge. The deadline, however, does not
authorize the FAA to lull potential petitioners into believing
that its actions remain non-final in order to ward off a timely
challenge.

    For the foregoing reasons, we dismiss the State’s petition
as untimely and deny its motion to amend as moot.

                                                    So ordered.