Opposition Brief — Britt v. San Diego Unified Port District

IN THE

Supreme Court of the Anited

OCTOBER TERM, 1977

at eB ax R., cle

No. 77-148

ROGER A. BRITT, et al.,

Petitioners,

Vv.

SAN DIEGO UNIFIED PORT DISTRICT and

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

FOR THE COUNTY OF SAN DIEGO,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

LOUIS E. GOEBEL

MICHAEL SCOTT GATZKE

WALTER J. CUMMINGS, III

LUCE, FORWARD, HAMILTON & SCRIPPS

1700 The Bank of California Plaza

110 West “A” Street

San Diego, California 92101

Telephone: (714) 236-1414

Attomeys for Respondent

SAN DIEGO UNIFIED PORT DISTRICT

INTERIM PRINTING & MAILING COMPANY

1105 West Morena BOULEVARD. SAN DIEGO. CALIFORNIA 92110 — 275-3050

Page

CTE REMD cc ccccccccccccccccccccccccccccccccces ill

JURISDICTION oo. cece cece eee eee e cece eee eecens 1

QUESTIONS PRESENTED .......... 2c ceeececeeees 2

STATEMENT OF THE CASE... 2.2 eee cece ee eeees 2

I. FACTUAL BACKGROUND ................. 2

Il. PROCEEDINGS BELOW ...............0005. 3

REASONS FOR DENYING WRIT ...............44-- 5

I. INTRODUCTION AND SUMMARY .......... 5

Il. THE CALIFORNIA DISTRICT COURT OF

APPEAL CORRECTLY DECIDED THIS

= | EPPPPPPTTITITITITITITITITIT ETT 7

A. The Issue Presented is the Power of a

Non-Proprietor Local Governmental

Entity to Reguiate Aircraft in Flight

for Noise Abatement Purposes. The

Court of Appeal Correctly Decided

that Local Agencies Which Are Not

Proprietors Have No Such Authority. ...... 7

B. The FAA’s Aviation Noise Abatement

Policy Supports the Conclusion Reached

by the Court of Appeal. In Fact, the

Views of FAA and the Court of Appeal

on this Issue Are Virtually Identical. ....... 16

TABLE OF CONTENTS (Continued)

C. The “Savings Clause” of the Federal

Aviation Act Has Not Been and Cannot

Be Interpreted in a Manner Which Would

Permit Petitioners’ Tort Counts. ........... 22

lil. THE PETITION SHOULD BE DENIED

BECAUSE REVIEW IS UNWARRANTED

AND UNTIMELY .............seseeeeeee ie ae

A. There Is No Conflict Between a Decision

of the Highest Court of a State and a

United States Court of Appeals or This

Court Regarding a Matter of Federal Law.

Nor Is There a Conflict Between the

Courts of Last Resort of Two or More

DUGID - voccccveveddesdsedestoceoescsses 28

B. The Petition Should Be Denied Because

It Seeks Review of an Interlocutory Decision

Addressed to an Issue Which Is Not Dispositive

OF GS COO. icc svc cc cdbecccesedsbccvccs 29

CRATE cc cccvecssccosccnsconcocccececccces 32

ere

ee oe

ail

- ili -

CITATIONS

Page

CASES

Adickes v. Kress & Co., 398 U.S. 144 (1970) ..........000. 2

Air Transport Association of America v. Crotti,

389 F.Supp. 58 (N.D. Cal. 1975) ........20eceeeeeees 5,15,

16

American Airlines, Inc. v. Town of Hempstead,

272 F.Supp. 226 (E.D.N.Y. 1967), aff'd, 398

F.2d 369 (2d Cir. 1968), cert. denied,

DB U.S. IIT wcccccccccccccccccccccccccccveseces 27,28

City of Burbank v. Lockheed Air Terminal, Inc.

oe 45,6,

7,9,10,11,12,13,15,18,19,22,23,27,28,32

Cox Broadcasting Corp. v. Cohn,

NS a 31,32

Danna v. Air France, 334 F.Supp. 52 (S.D.N.Y.

1971), aff'd, 463 F.2d 407 (2d Cir. 1972) .........0e00. 24,

25,26

Duignan v. United States, 274 U.S. 195 (1927) .......20000: 2

Farmer v. United Brotherhood of Carpenters,

es ccusetossnr ens 8,9

Fisher v. District Court, 424 U.S. 382 (1976) ......seeeeees 31

Fils oh Cin, SUS. DCE oo 5c c cc cecccsccccee. 2,31

Griggs v. Allegheny County, 369 U.S. 84 (1962) ......000-s 13,

14,30

Harmon v. De Turk (1917) 176 Cal. 758 «1... eee cece eee 29

CITATIONS (Continued)

Page

CASES (Coutinued)

Husty v. United States, 282 U.S. 694 (1931) ......... gecen ye

Iron Workers v. Perko, 373 U.S. 701 (1963) .......-ccceees 8

Jones v. Rath Packing Co., 97 S.Ct. 1305 (1977) ........... 22

Lawn v. United States, 355 U.S. 339 (1958) ............06. 2

Lockheed Air Terminal, Inc. v. City of Burbank,

318 F.Supp. 914 (C.D. Cal. 1970) .........0-ceeeeeee 26

Lockheed Air Terrsinal, Inc. v. City of Burbank,

457 F.2d 667 (9th Cir. 1972) ........ as 26,27

Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir.

1975), aff’g in part and rev’g in part on other grounds,

371 F.Supp. 1040 (E.D. Wis. 1974) .......cceeeceeees 5,10,

11,15,28

Madruga v. Superior Court, 346 U.S. 556 (1954) .........0-. 31

Motor Coach Employees v. Lockridge,

BP GE SI Goikeciabds aia nncessacisecs 8

Nader v. Allegheny Airlines, Inc., 426 U.S. 290 (1976) ....... 25

Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 ......... 4

Northwest Airlines, Inc. v. Minnesota, 332 U.S. 292 (1944) ... 32

Plumbers’ Union v. Borden, 373 U.S. 690 (1963) ........4.. 8

Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1 (1965) ..... 31

San Diego Bldg. Trades Council v. Garmon,

SPOS. DRE ove dnsivisitiecsccaciekateun 4,5,6,

8,9,14,15

AS ee

-Ve-

CITATIONS (Continued)

Page

CASES (Continued)

San Diego Unified Port Dist. v. Superior Court

COUT GP Cub Ma DO BE oo cicgcdcscccccccccstece 4,10,

13,15,16,30

Texas & Pacific R. Co. v. Abilene Cotton Oil Co.,

I 24,26

T.LMLE. Inc. v. United States, 359 U.S. 464 (1959) ........ 26

Tyrrell v. District of Columbia, 243 U.S. 1 (1916) .......... 2

United States v. Oregon, 366 U.S. 643 (1961) ........22005- 29

Village of Bensenville v. City of Chicago,

cess cceceseecs 14

Virginians for Dulles v. Volpe, 344 F.Supp. 573 (E.D. Va.

1972), aff'd in part and rev'd in part on other grounds,

S41 F.2d 442 (4th Cir. 1976) .......00ccccccccescese 11,24

Virginians for Dulles v. Volpe, 541 F.2d 442 (4th Cir. 1976) .. 11

Washington v. General Motors Corp., 406 U.S. 109 (1972) .... 24

Youakim v. Miller, 425 U.S. 231 (1976) .....cceeececceces 2

STATUTES and REGULATIONS

Airport and Airway Development Act of 1970

Sections 2-301(a), 49 U.S.C. §§1701-1742 .......00005 23,30

Clean Air Amendments of 1970

Sections 317 et seq., 42 U.S.C. §§1857 et seq... eee eee. 23,24

Code of Federal Regulations

14 C.F.R. Parts 71, 73, 75, 77, 91, 93, 95 and 97 ....... 12

os

CITATIONS (Continued)

Page

STATUTES and REGULATIONS (Continued)

Federal Aviation Act of 1958

Sections 101 et seq., as amended, 49 U.S.C.

§§1301 et seq., as amended .........seeeeeeeeeeees 5,7,

22,23,24,25,26,28

Section 101(26), 49 U.S.C. §1301(26) .......eeeeeeees 14

Section 404(b), 49 U.S.C. §1374(b) ......ceecceeeeees 24

Section 1106, 49 U.S.C. §1506 ......ccceeeeceeeeees 6,23

Section 1108, 49 U.S.C. §1508 .......ssseeeeeseeees 27

Interstate Commerce Act of 1887, 49 U.S.C. §§1 et seq. ... 24

United States Code

OG ME Samosa Scsicc ca cchakadednss ieee’ 29,31

United States Constitution

FE Re | io dcncccescconnsececcasecececses 3,30

Fourteenth Amendment .......-seesececceccescess 3,30

Supremacy Clause (Article VI, cl.2) ........eeeeeee- 9

California Constitution

Radiate U, GP oc cc ccck ct tecdsccdecccccctstsoscus 3

California Government Code 9815 .....-.0eeeeeeeeeees 4

San Diego Unified Port District Act, Stats.1962,

Ist Ex.Sess., c. 67, (California Harbors &

Navigation Code, Appendix 1, §§1 et seq.

[West Supp. 1977]) 2... cecceeccccccccccccecceens 2,3

OTHER AUTHORITIES

FAA, Aviation Noise Abatement Policy, November 18, 1976 .. 6,16,

17,18,19,20,21

- Vil -

CITATIONS (Continued)

OTHER AUTHORITIES (Continued)

Note, Pre-emption as a Preferential Ground: A New Canon

of Construction, 12 Stan.L.Rev. 208 (1959) ........eeee-

Note, Shifting Aircraft Noise Liability to the Federal

Government, 61 Va.L.Rev. 1299 (1975) «0... cece eeeees

United States Supreme Court Rule 19, §1(a) ..........--

Page

eee er =

—_— — ae

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-148

ROGER A. BRITT, et al.,

Petitioners,

v.

SAN DIEGO UNIFIED PORT DISTRICT and

SUPERIOR COURT OF THE STATE OF CALIFORNIA,

FOR THE COUNTY OF SAN DIEGO,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JURISDICTION

The Petition for Writ of Certiorari (Petition) does not present an

issue as to which this Court should exercise its jurisdiction at the

present time. As Respondent San Diego Unified Port District (here-

inafter “Port District”) will discuss infra, this Court should not

exercise its jurisdiction to consider an interlocutory decision which

derives from a proceeding primarily eminent domain in nature

where additional proceedings beiow will require this Court’s review

of other federal questions at a later date.

an

QUESTIONS PRESENTED

1. Whether the Court of Appeal correctly ruled that the

regulation of aircraft in flight for noise abatement purposes is

federally preempted, and that the Port District is therefore not liable

under state law for harm alleged to arise from the operation of jet

aircraft in navigable airspace.

2. Whether this Court should grant a Petition for Writ of

Certiorari where no conflict of decisions exists between a court of

last resort of a state and one or more United States Courts of Appeals

or this Court; or between courts of last resort of two or more states.

3. Whether this Court should grant a Petition for Writ of

Certiorari when: (1) The decision below is interlocutory in nature

and derives from a proceeding essentially eminent domain in nature;

and (2) the underlying actions will require consideration by this

Court of other federal questions at a later time.!/

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND.

The San Diego Unified Port District (“Port District’’) is a special

district created by the California Legislature in 1963 (San Diego

7

Petitioners ask this Court to consider whether tort actions predicated

upon airport noise may be brought against the United States of America in

Federal District Courts (Petition at 3-4). That question has not been briefed,

raised or argued below and appears nowhere in the record. Accordingly,

this Court should not consider it. ouakim v. Miller, 425 U.S. 231, 234 (1976);

Adickes v. Kress & Co., 398 U.S. 144, 147 n.2 (1970); Lawn v. United States, 355

U.S. 339, 362-363 n.16 (1958); Husty v. United States, 282 U.S. 694, 701-702

(1931); Duignan v. United States, 274 U.S. 195, 200 (1927); Tyrrell v. District of

Columbia, 243 U.S. 1, 4 (1916). Furthermore, this Court does not render

advisory opinions. Flast v. Cohen, 392 U.S. 83, 96-97 (1968).

mS

Unified Port District Act, Stats.1962, Ist Ex.Sess., c. 67, California

Harbors & Navigation Code, Appendix 1, §§1 et seq. [West Supp.

1977}) to administer state owned tideland: which previously had

been controlled by five local municipalities in the San Diego region.

San Diego International Airport - Lindbergh Field (“Lindbergh

Field”), San Diego’s major commercial air carrier airport, is located

on state owned tidelands. Administration of the airport passed to the

Port District upon its creation in 1963.

Petitioners here, and plaintiffs in the underlying actions, are

residents (and one church) of San Diego, living in an area in

proximity to Lindbergh Field. Petitioners have contended that their

properties have been taken and damaged and their persons injured as

a proximate result of noise and other effects generated by jet aircraft

operations at Lindbergh Field.

Il. PROCEEDINGS BELOW.

In July, 1975, petitioners filed an action entitled Britt, et al. v. San

Diego Unified Port District, San Diego Superior Court No. 367963.

Later, a similar action, Banks, et al. v. San Diego Unified Port District,

San Diego Superior Court No. 379755 was filed, and the two actions

were consolidated. Originally, 936 individuals and one church were

named as plaintiffs. The sole named defendant was the Port District.

In Count 1 of their complaints, petitioners alleged that their

property had been taken by the Port District in derogation of their

rights under the Just Compensation Clause of the Fifth Amendment

to the Constitution of the United States (as incorporated through the

Due Process Clause of the Fourteenth Amendment), and Article I,

§19 of the California Constitution. Counts 13 and 14 of petitioners’

complaints alleged that the Port District was liable to them as third

party beneficiaries under contractual agreements between the Port

District and the Federal Aviation Administration (FAA) which are

commonly known as “grant agreements”. Neither the inverse

at<

condemnation count nor the grant agreement counts are at issue

here. Both the inverse condemnation and grant agreement theories

raise substantial federal questions.

The Port District, however, demurred to the other counts of

petitioners’ complaints, which sound respectively in nuisance

(Counts 3 and 4); negligence (Counts 5 and 6); trespass (Counts 7 and

8); and failure of the Port District to obtain a proper operating

permit from the State of California, Department of Transportation,

Division of Aeronautics (Counts 9 and 10). The ground of the

demurrers was that these actions, based upon California statute,?/

are not permissible because the field of airport noise regulation has

been preempted by the federal government (City of Burbank v.

Lockheed Air Terminal, Inc., 411 U.S. 624 (1973)); and that the award of

damages by a court is as nnuch a regulation of preempted activity as

any injunctive relief or legislative action. San Diego Bldg. Trades

Council v. Garmon, 359 U.S. 236 (1959).

The Superior Court of the State of California for the County of

San Diego overruled the demurrers, and the Port District petitioned

the California Court of Appeal, Fourth Appellate District, for its

writ to compel the Superior Court to sustain the demurrers. The

Court of Appeal ultimately refused to issue its writ in an opinion

reported as San Diego Unified Port Dist. v. Superior Court (1977) 67 Cal.

App.3d 361. The writ was denied because the Court concluded that

the tort counts of petitioners’ complaints were sufficiently broad to

include allegations of tortious conduct by the Port District in respect

2/

In California, a public entity is liable only as provided by statute and

may not be sued on purely “common law” theories of recovery. California

Government Code §815; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920,

932.

—

aS

of management and maintenance of ground facilities at Lindbergh

Field. The court, however, instructed the Superior Court that on the

trial of the action, it was not to award damages against the Port

District on.any tort theory of recovery for any harm caused by

aircraft in flight because regulation in that field is federally

preempted.

Review by the California Supreme Court was denied, and the

Petition for Writ of Certiorari to this Court followed.

REASONS FOR DENYING WRIT

I. INTRODUCTION AND SUMMARY.

In holding that the Superior Court of the State of California may

not, through the medium of damage awards, regulate the operation

of aircraft in flight for noise abatement purposes, the California

District Court of Appeal correctly followed the decisions of this

Court in City of Burbank v. Lockheed Air Terminal, Inc., supra; San Diego

Bldg. Trades Council v. Garmon, supra; as well as the decisions in Luedtke

v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975), aff’g in part and

rev'g in part on other grounds, 371 F.Supp. 1040 (E.D. Wis. 1974) and Air

Transport Association of Americe v. Crotti, 389 F.Supp. 58 (N.D. Cal.

1975). In Burbank, this Court held that the preemptive scope of the

Federal Aviation Act of 1958 (49 U.S.C. §§1301 et seq., as amended)

evidenced an intent by Congress to establish a uniform and exclusive

scheme of federal regulation of aircraft in flight for noise abatement

purposes. It was the view of this Court that the comprehensive

scheme of federal regulation of aircraft and airport noise left ‘‘no

room for local curfews or other local controls.’ 411 U.S. at 638.

Petitioners argue that in footnote 14 to the Burbank decision, this

Court exempted local proprietors of airports from this preemptive

effect. Since their actions are against a proprietor, they suggest that

Burbank is inapplicable to the proceedings in this case. The issue here,

\

_ =

however, is not the power of the Port District, in its capacity as a

proprietor of an airport, to regulate for noise abatement purposes.

The issue presented by the Port District in the proceedings below is

whether or not the Superior Court, a local governmental agency

which is not a proprietor of an airport, may regulate operation of an

airport for noise abatement purposes through the medium of damage

awards. The clear answer of Burbank and Garmon is that the Superior

Court cannot play such a role in the formulation of the nation’s

airport and aircraft noise policy.

Not only is the decision of the Court of Appeal consistent with the

existing federal case law concerning this issue, but it is also consistent

with the views of the responsible regulatory agencies. Much of

petitioners’ argument is based upon FAA’s recent statement of policy

regarding airport noise as expressed in the Aviation Noise Abatement

Policy (November 18, 1976) (Noise Policy). Petitioners quote selec-

tively from general statements in the Noise Policy to suggest that FAA

has rejected its preemptive authority in the field of aircraft noise

control, and that the FAA policy statement authorizes their tort

actions against an airport proprietor.

In fact, the views of FAA regarding the division of authority and

responsibility between the federal government on the one hand, and

proprietors on the other, are virtually identical to the division of

authority as defined by the Court of Appeal in the opinion below.

Both FAA and the Court of Appeal reaffirm the long established

principle that the federal government has sole regulatory »«zhority

for controlling the operation of aircraft in flight for noise abatement

purposes. The Noise Policy not only fails to delegate that authority to

local proprietors; it makes it unequivocally clear that FAA will not

share its responsibility for aircraft operational control with any

state or local agency.

Finally, petitioners rely upon the “savings clause” of the Federal

Aviation Act, 49 U.S.C. §1506, as authority for maintenance of their

state law causes of action against the Port District. Nevertheless, in

ee ee

=

both Burbank and other decisions, this Court has held that general

savings clause provisions such as that contained in the Federal

Aviation Act will not be interpreted in such a way as to frustrate and

defeat Congressional purposes and objectives reflected in the more

specific provisions of Congressional legislation. To interpret the

savings clause as petitioners suggest would totally defeat the

Congressional objective of a uniform and exclusive system of federal

regulation of aircraft in flight. This Court previously has made it

clear that such a result cannot be permitted.

Il. THE CALIFORNIA DISTRICT COURT OF APPEAL

CORRECTLY DECIDED THIS CASE.

A. The Issue Presented is the Power of a Non-Proprietor

Local Governmental Entity to Regulate Aircraft in Flight

for Noise Abatement Purposes. The Court of Appeal

Correctly Decided that Local Agencies Which Are Not

Proprietors Have No Such Authority.

In City of Burbank v. Lockheed Air Terminal, Inc., supra, this Court

held that the “delicate balance” required by the Federal Aviation

Act between the interdependent considerations of safety, efficiency

in airspace management and aircraft noise control, mandated “a

uniform and exclusive system of federal regulation if the

congressional objectives underlying the Federal Aviation Act are to

be fulfilled.” 411 U.S. at 638, 639. Although recognizing that control

of noise is deep-seated in the police power of the states, this Congres-

sionally mandated uniform and exclusive system for regulating the

nation’s airways and aircraft resulted in the Court's conclusion that

“the pervasive control vested in EPA and FAA under the 1972 [Noise

Control] Act seems to us to leave no room for local curfews or other

local controls.” 411 U.S. at 638 (emphasis added).

While Burbank involved a curfew ordinance adopted by the City

of Burbank, it is well established that civil damage actions can result

in regulation of federally preempted activity as impermissible as a

local injunction or legislative activity. Regarding a California

damage action held to be preempted by federal labor legislation, this

Court stated in San Diego Bldg. Trades Council v. Garmon, supra:

“Our concern is with delimiting areas of conduct

which must be free from state regulation if national

policy is to be left unhampered. Such regulation can

be as effectively exerted through an award of

damages as through some form of preventive relief.

The obligation to pay compensation can be, indeed

is designed to be, a potent method of governing

conduct and controlling policy. Even the States’

salutory effort to redress private wrongs or grant

compensation for past harm cannot be exerted to

regulate activities that are potentially subject to the

exclusive federal regulatory scheme [citation

omitted]. It may be that an award of damages in a

particular situation will not, in fact, conflict with

the active assertion of federal authority. The same

may be true of the incidence of a particular state

injunction. To sanction either involves a conflict

with federal policy in that it involves allowing two

law-making sources to govern.”

359 U.S. at 246-247.

This principle has often been reaffirmed. E.g., Motor Coach

Employees v. Lockridge, 403 U.S. 274, 286-292 (1971); Iron Workers v.

Perko, 373 U.S. 701, 705-706 (1963); and Plumbers’ Union v. Borden, 373

U.S. 690, 693-694 (1963).3/

/

Petitioners analogize this case to the decision last term in Farmer v.

United Brotherhood of Carpenters, 97 S.Ct. 1056 (1977), contending that Farmer

held that the National Labor Relations Act did not preempt the right of a

union member to sue a union in state court for tortious conduct. They

(footnote continued on next page)

oe

a Gies

Burbank and Garmon, read together, make it clear that tort theories

of recovery against the proprietor of an airport for harm caused by

aircraft in flight would present an impermissible threat of local

regulation in the federally preempted field of aircraft flight

operations; and that such actions would therefore violate the

Supremacy Clause of the Constitution of the United States.

(footnote continued from previous page)

claim that Farmer “emphasized the state’s interest in protecting its citizens

from tortious injury, and the concurrent lack of Federal interest in pro-

tecting tortious conduct” (Petition at 17-18).

The holding of Farmer, of course, is much more narrow. Farmer

reaffirms the general rule in Garmon (97 S.Ct. at 1061) but also recognizes

that there are certain exceptions to the Garmon rule as, for example, where

the activity “ ‘was a merely peripheral concern of the Labor Management

Relations Act’.”” Id. The decision in Farmer was premised upon the

determination that the underlying action involved “‘violent tortious

activity” and that the federal labor statutes do not protect or immunize

from state action “violence or the threat of violence in a labor dispute”. Id.

at 1063. The Court noted that the complaint in the underlying action alleged

***outrageous conduct, threats, intimidation, and words’”’ (Id. at 1064); and

the Court emphasized that “[rJecovery for the tort of emotional distress

under California law requires proof that the defendant intentionally

engaged in outrageous conduct causing the plaintiff to sustain mental

distress.” Id. at 1966. While concluding that Congress did not intend to

preclude state actions for intentionally violent torts, the Court

“reiterate[d] that concurrent state court jurisdiction cannot be permitted

where there is a realistic threat of interference with the federal regulatory

scheme.” Id.

The underlying actions in this case do not involve torts requiring a

finding of “‘outrageous”’ or “intentional” conduct. Further, Burbank makes

it inescapably clear that adjudication of issues regarding the regulation of

aircraft in flight for noise abatement purposes would present a “realistic

threat of interference with the [exclusive] federal regulatory scheme.”

= =

In Luedtke v. County of Milwaukee, supra, a post-Burbank case

directly on point with the issue presented here, the Seventh Circuit

Court of Appeals reached that very conclusion, holding:

“Since the federal laws and regulations have

preempted local control of aircraft flights, Burbank,

supra, the defendants may not, to the extent they

comply with such federal laws and regulations, be

charged with negligence or creating a nuisance.

Similarly, §114.04 of the Wisconsin Statutes cannot

be invoked to make unlawful ‘lights which are in

accordance with federal laws and regulations. If, as

the plaintiffs allege, the aircraft flights have resulted

in the ‘taking’ of their property, the plaintiffs have

actions at law to recover just compensation from the

County. Griggs, supra; Section Ill, supra. To the

extent that the County [proprietor] may be

violating the federal laws or regulations, the

plaintiffs should, as explained in Section V, supra,

exhaust their administrative remedies.”

521 F.2d at 391.4/

‘/

Petitioners seek to create the impression that the decision of the

California District Court of Appeal is somehow “‘unique”’ ( Petition at 12-13

and 31-35). Not only is that not true with respect to the cases which

petitioners did cite, but they are able to attempt to create that impression

only by failing to cite or otherwise advise this Court of the existence of

Lwuedtke. Luedtke is directly on point, and the Port District has consistently

relied upon Luedtke as being a correct statement of the application of Burbank

to civil tort actions. The Court of Appeal devoted over two pages of its

opinion to a discussion of Luedtke (67 Cal.App.3d at 369-371), and it is, we

believe, revealing that petitioners find that the only way in which they can

deal with Luedtke is to ignore the case totally.

oi we

Other federal courts dealing with airport damage actions have

expressed similar views. In Virginians for Dulles v. Volpe, 344 F.Supp.

573 (E.D. Va. 1972), aff'd in part and rev'd in part on other grounds, 541

F.2d 442 (4th Cir. 1976), the court presaged both Burbank and Luedtke

in denying plaintiffs’ damage actions by stating:

“Moreover, there are other obstacles to relief for

the plaintiffs. If, as the Supreme Court has said,

albeit by dicta, in Washington v. General Motors

Corp. [406 U.S. 109 (1972)], and Illinois v. City of

Milwaukee [406 U.S. 91 (1972)], federal regulations

and laws have preempted the federal common law

of nuisance so far as emissions from airplanes are

concerned, the regulations and laws are at least as

pervasive in the field of aircraft noise. 49 U.S.C.

§1431, 14 CFR Part 36.”

344 F.Supp. at 579.

On appeal the Fourth Circuit Court of Appeals held that the

damage issue had not been properly preserved for appeal (541 F.2d at

444), but the court did note that the trial court had excluded evidence

on aircraft emissions because of federal preemption of that field. Id.

Implying that the noise issue could have been dealt with in a similar

fashion, the court then stated:

“The district court wrote before the Supreme

Court decided Burbank v. Lockheed Air Terminal, Inc.,

411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973),

which deals with the federal preemption of local and

state regulation of aircraft noise.”

541 F.2d at 444 n.1.

Thus, all of the federal courts which have faced the issue of

applying Burbank to civil tort actions have reached the same

conclusion: Such actions are not permissible absent an allegation

that some relevant federal statute has been violated by the defendant.

If the opinion of the Court of Appeal is in any sense “unique”’, it is

-12-

only because the Court of Appeal, in leaving the proprietor with

potential tort liability for ground activities, did not go as far as the

federal courts in barring such actions.

The core of petitioners’ argument is summarized at page 29 of

their petition where they state that the Port District “fervently”

argued to the Court of Appeal - and that the Court of Appeal

accepted - that Burbank “‘held that airport operators can exert no

control over jet noise.”” Their contention is that the Port District

premises its position upon the argument that airport proprietors have

no residual authority to regulate in this field. It is difficult to

characterize that argument as anything less than an intentional

misrepresentation to this Court.

The Port District has consistently taken the position that FAA is

the sole regulatory authority for the operation of jet aircraft in

flight. Neither the proprietor nor anyone else, we believe, can

require aircraft to utilize approach or departure procedures or other

flight operational procedures which are contrary to the complicated,

detailed and express regulations of FAA which now govern such

operations (See, e.g., 14 C.F.R. Parts 71, 73, 75, 77, 91, 93, 95 and 97).

The Port District has also taken the position that Burbank holds thax

local or state governmental entities who are not proprietors

(including the judiciary) have no residual authority to regulate noise

at the nation’s airports.5/

5/

Obviously, with the caveat that local municipalities do retain the

authority to engage in land use planning activities in areas adjacent to

airports. The Port District, however, is a special district of limited

jurisdiction, and it does not have jurisdiction over the zoning of residential

areas in proximity to Lindbergh Field. The responsibility for the utilization

of land use planning techniques as a noise abatement strategy in San Diego

rests with the City of San Diego.

-13-

Nevertheless, the Port District has always recognized that this

Court expressly declined to decide in Burbank what residual

regulatory authority, if any, might remain in airport proprietors. 411

U.S. at 635-636 n.14. The Port District has also acknowledged that

proprietors may, under the current state of the law, have some

residual authority to regulate in this field not available to non-

proprietors.

The basis for the view that the proprietor may have some residual

regulatory authority is the decision of this Court in Griggs v. Allegheny

County, 369 U.S. 84 (1962). Decided at the dawn of the commercial

jet age in the United States, Griggs holds that where a private

property owner complains that his property has been taken by virtue

of the noise generated by jet aircraft operations at a recently

constructed airport, it is the airport operator and not the federal

government or the airlines who must meet the constitutional

obligation of paying “just compensation” to the property owner. So

long as Griggs remains the law in the United States, then it is

reasonable to assume that proprietors may have at least some

correlative authority by which they can mitigate their potential

inverse condemnation liability.*/

But the principle that proprietors have responsibility for the

acquisition of the “approaches” necessary to operate the airport is

$/

Because of the existence of Griggs, the Port District did not demur to

petitioners’ inverse condemnation count on preemption grounds. (The

opinion of the Court of Appeal is in error where it states that we did not

“contest the overruling” of our demurrer to the inverse condemnation

count [67 Cal.App.3d at 364]. In fact, our demurrer to that count was on

other grounds and was sustained with leave to amend. The court is

essentially correct, however, in that we did not present the Griggs issue to it

and sought its writ only with respect to the tort counts of petitioners’

complaints). Nevertheless, the Port District has raised preemption as a

‘defense to sue inverse condemnation count in its answer to petitioners’

complaints; and the Port District contemplates establishing a record on the

trial of the actions to form a basis upon which it will ultimately ask this

Court to reconsider Griggs.

« 14'<

not authority for the proposition that this Court intended by Griggs to

inake proprietors responsible for the ‘“‘reasonableness”’ or

‘‘unreasonableness’’ of the procedures under which aircraft in flight

operate in navigable airspace.’/ The thrust of petitioners’ argument

is that proprietors are exempt from all preemption in this field. They

then expand that misconception by arguing that because the

proprietor may regulate, it can be commarided to exercise its authority

by another non-proprietor state agency - in this case the Superior

Court of the State of California. In rejecting that very argument, an

Illinois court recently noted in Village of Bensenville v. City of Chicago,

16 Ill. App.3d 773 (1973):

“*As above indicated, despite language relating to

the expansion of runways and supporting facilities,

the real thrust of the plaintiffs’ complaint is to

prohibit (by a ‘Tinker to Evers to Chance’

combination of a court decree upon the [ proprietor]

to control the airlines) aircraft from producing noise

or emitting fumes (while in flight over their terri-

torial boundaries) in excess of certain limits to be

fixed by the Illinois Chancery Court.”

16 Ill.App.3d at 735.

Thus, while a proprietor may « /ioose (because of its potential Griggs

liability) not to allow additional flights which would require it to

purchase additional easements, it is clear that the proprietor cannot

be commanded to do so by a non-proprietor state or local agency. It

makes no difference whether that command takes the form of

legislative direction or direction by a judicial officer using the

court’s power either to issue an injunction or award substantial

money damages. Either course is, as this Court recognized in Garmon,

calculated to make policy and to regulate conduct.

/

“Navigable airspace” is a defined term under 49 U.S.C. §1301(26).

=

The key holding of Burbank concerning the authority of non-

proprietors is that they “*‘remain unable to use their police powers to

control aircraft noise by regulating the flight of aircraft.’’’ 411 U.S.

at 635. The Superior Court of the State of California is not a

proprietor of an airport, and it may not command the Port District,

as a proprietor, in a manner which would regulate the operation of

aircraft in flight. If it were permissible for either a state or local

legislative or judicial body to command a proprietor to use

“‘proprietor’s powers” (if any) to regulate the operation of aircraft at

the airport, then Burbank would mean nothing. We do not believe

that this Court intended that to be the effect of its decision. The

Burbank ordinance was nothing more than a direction to a proprietor

by the City of Burbank regarding an airport located within the city’s

jurisdiction to prevent jet aircrait from using the airport between the

hours of 11:00 p.m. and 7:00 a.m. It was a command by a non-

proprietor local agency to a proprietor seeking to regulate

operations at the airport, and the ordinance was held unconstitu-

tional. Adjudication of the tort counts of the petitioners’ actions, and

an award of damages under any of those theories of recovery, is

similarly and inescapably a command by a non-proprietor local

authority to a proprietor regulating and controlling operations at the

airport; and it is similarly and inescapably unconstitutional.

If, as they state, petitioners truly find it “hard to understand” how

the Court of Appeal characterized as correct the conclusion that

federal preemption of this field leaves no room for local controls,

including civil tort actions for money damages (Petition at 11), then it

can only be that they have not read Burbank, that they have not read

Garmon, and that they have not read Luedtke or the other authorities

to which they casually refer throughout their petition.*/

8/

For example, the detailed analysis by the Court of Appeal of Air

Transport Association of America v. Crotti, supra, (67 Cal.App.3d at 371-373)

(footnote continued on next page)

xs

The Court of Appeal’s holding is neither “‘erroneous’’ nor “‘self-

abnegating”’ (Petition at 35). The conclusion of the Court of Appeal is

not only consistent with prior decisions of the federal courts on this

issue of federal constitutional law - its conclusion was compelled by

those decisions.

B. The FAA’s Aviation Noise Abatement Policy Supports the

Conclusion Reached by the Court of Appeal. In Fact, the

Views of FAA and the Court of Appeal on this Issue are

Virtually Identical.

Petitioners’ argument relies heavily upon a recent policy

statement of the Federal Aviation Administration (FAA) entitled

Aviation Noise Abatement Policy (November 18, 1976) (Noise Policy).

Quoting FAA as stating that it has rejected “full and complete

federal preemption of the field of aviation noise abatement”’ (Petition

at 10), petitioners suggest that FAA is at odds with the Court of

Appeal concerning the proper division of legal authority and

responsibility between the federal government on the one hand, and

state and local governments (including proprietors) on the other

hand. A less superficial view of the Noise Policy, however, reveals that

the views of FAA and the Court of Appeal regarding this division of

authority and responsibility are virtually identical.

While FAA may have declined for the present to exercise “fully”

and ‘‘completely” its Congresionally mandated responsibility to

preempt the entire field of airport noise control, the Noise Policy

clearly reaffirms total federal preemption of the regulation of aircraft

(footnote continued from previous page)

stands in stark contrast to the contention by petitioners that the Court of

Appeal “expressly chose to disregard” the case (Petition at 12). Indeed, the

Court of Appeal based its conclusion primarily upon the division of

authority and responsibility defined in Crotti (67 Cal.App.3d at 376).

-17-

in flight for noise abatement purposes. In the introduction to the

Noise Policy, the Federal Aviation Administrator and the Secretary of

Transportation recognize “the responsibility of the federal

government to reduce aircraft noise at its source”’, while assigning to

local governments and airport proprietors the duty to “acquire land

and assure compatible land use in areas surrounding the airport.”

Noise Policy at 2, 3. At pages 5 and 6 of the Noise Policy, FAA

summarizes its views regarding the respective responsibility of the

various parties involved in airport noise control, and it defines the

scope of federal authority as follows:

“The Federal Government has the authority and

responsibility to control aircraft noise by the regula-

tion of source [aircraft] emissions, by flight

operational procedures, and by management of the

air traffic control system and navigable airspace in

ways that minimize noise impact on residential

areas, consistent with the highest standards of

safety.”

Noise Policy at 5.

And, in discussing the “Legal Framework” of its policy, the FAA

states: ““In legal terms the federal government, through this exercise

of its constitutional and statutory powers, has preempted the areas of

airspace use and management, air traffic control and aviation

safety."” Noise Policy at 29. The Noise Policy also describes past and

proposed federal action with respect to noise source (aircraft)

regulation (Noise Policy at 35-44), together with a history and

description of actions considered both by FAA and the Environ-

mental Protection Agency (EPA) in regulating aircraft operational

procedures (Noise Policy at 44-47).

Particular actions which FAA believes proprietors can take in

respect of noise abatement are also described at pages 55 through 57

of the Noise Policy. Almost all of those actions deal with such matters

+.

as land acquisition and noise abatement procedures on the ground.

None authorize direct proprietor regulation of aircraft in flight.*/

The FAA’s view that it has preemptive responsibility for

controlling aviation noise at its source,'°/ while local governments

and proprietors are responsible for ground related activities such as

land use planning to achieve airport-compatible land use in

surrounding areas, equates precisely with the dichotomy of legal

responsibility defined by the Court of Appeal. The Noise Policy

nowhere suggests that FAA has abdicated to local proprietors the

authority to regulate aircraft in flight for noise abatement purposes.

Rather, the Noise Policy reaffirms in unqualified terms FAA’s intent

to retain exclusive regulatory authority in that field. Far from

serving as a basis for reexamination of the decision of the Court of

Appeal, the Noise Policy is additional authority for the conclusion that

the opinion of the Court of Appeal is correct.

The Noise Policy does suggest that proprietors may propose airport

use restrictions to FAA.""/ However, FAA continues in its view that

9/

’ While the Noise Policy does describe actions which FAA believes can

be taken by an airport proprietor, the Noise Policy distinguishes between

those activities which the proprietor “can implement directly” (land use

activities) and those which the proprietor “can propose to FAA for imple-

mentation” (regulation of aircraft in flight). Noise Policy at 55-57.

10/

“Controlling aircraft noise at its source’’ is a phrase of art used by

FAA to describe regulation of jet aircraft construction and flight

operations. See, ¢.g., the discussion at pages 22, 23, and 43-47 of the Noise

Policy.

11/

“Airport use restrictions” would include: (1) ‘““Time’’ restrictions

such as the curfew dealt with by this Court in Burbank; (2) “type”

restrictions excluding certain aircraft from the airport because of their

noise characteristics; or (3) a combination of time and type restrictions.

-19-

“while the airport proprietor is best situated to

judge the local noise problem and to determine how

to respond to it, he is not always in the best position

to judge the impact of his noise reduction proposal

on the national and international air transportation

systems. Because of the intricacy of those systems,

use restrictions at a single airport, under certain

circumstances, could cause wide-spread disruption

throughout those systems.”

Noise Policy at 58.

Recognizing that it “has the obligation to assure that proprietor

actions to meet local needs do not conflict with national and

international purposes’ (Id.), FAA requires that a proprietor

considering a “use restriction” as a tactic for noise abatement submit

the proposal in advance to FAA with: (1) A full description of

alternative noise abatement techniques; and (2) a statement of the

proprietor’s reason for adoption of a use restriction rather than other

noise abatement alternatives. The FAA requires prior submission so

that it can “ensure that uncoordinated and unilateral restrictions at

various individual airports do not work separately or in combination

to create an undue burden on interstate or foreign commerce,

unjustly discriminate or conflict with FAA’s statutory regulatory

authority” (Noise Policy at 59); and FAA characterizes this prior

review of proposed use restrictions as ‘‘vital”. Id. Proprietor adopted

use restrictions not approved in advance will not be recognized by

FAA as valid, and a proprietor adopting a use restriction without

prior FAA approval may expect to be a defendant in litigation

initiated by the United States. Noise Policy at 59-60.

The FAA thus reaffirms the conclusion in Burbank that evaluation

of use restrictions remains “peculiarly within the competence of

FAA, supplemented now by the input of EPA”’; and that only further

Congressional action will allow “the States or municipalities in on

the planning." 411 U.S. at 640. While FAA may have now invited

proprietor participation in this planning process, there is no

such invitation in the Noise Policy to non-proprietors such as the

Superior Court of the State of California.

Nevertheless, petitioners’ argument regarding use restrictions is:

“Thus, contrary to the Court of Appeal’s conclu-

sion, the FAA believes that‘. . . the reasonableness of

the operation of airports . . .” (67 Cal. App.3d at 369)

is subject to examination. How else could one

determine whether discrimination is ‘unjust’, or

interference with commerce is ‘unreasonable’?”’

Petition at 27.

This argument implies that petitioners should be permitted to pursue

their tort actions by contending that the Port District should have

adopted some use restriction which would have reduced their

“damage” while not unjustly discriminating against users, or

imposing an unreasonable burden on interstate commerce. The

further implication of the argument is that FAA approves

adjudication of those questions by individual trial courts.

However, the Noise Policy not only fails to approve such action by

individual state courts, it is clear that FAA would find such a

situation intolerable. The whole purpose of FAA’s insistence upon

prior FAA review and approval of use restrictions is that such

restrictions will affect the integrated national air transportation

system, and that FAA is the only authority which can accurately

evaluate the total impact of a use restriction at a particular airport.

Adjudication of petitioners’ actions would require an evaluation of

whether or not particular use restrictions proposed by petitioners

would unjustly discriminate against users or unreasonably burden

interstate commerce. Such an action would necessarily require

evidence on every facet of the commercial air transportation system,

and it would take many months - perhaps years - to try. This lengthy

trial would then result only in the views of one local court on the

“reasonableness” of particular use restrictions. If one local trial

<6 Qe ~- ee ae

ER

court can make such a determination, then trial courts in all 50 states

may do the same. The possibility, indeed probability of conflicting

and inconsistent decisions is substantial. The resulting impact on

maintenance of a uniform and coordinated national air

transportation system is obvious - it would no longer be possible.

It is nothing more than fantasy to suggest that FAA has ever

intended that individual state courts should actively participate in

adjudicating the delicate balance between airspace safety,

efficiency, management and the control of aircraft noise. On

announcing hearings preparatory to formulation of its Noise Policy,

the FAA stated:

“The question of airport noise has been the

subject of extensive litigation in the context of very

specific and somewhat circumscribed issues being

presented to the Courts in a limited factual context.

The FAA does not believe that policy in this area

should be the result or product of piecemeal judicial

decisions. The FAA believes its role is to develop

policy in a manner which, to the maximum extent

possible, eliminates potential conflicts and

accomodates the varying and competing interstate

and local multijurisdictional interests.”

40 Fed. Reg. 28844.

Finally, those portions of the Noise Policy relied on by petitioners

are not even relevant to the true issue before this Court. As noted

earlier, the issue in this case is the power of a non-proprietor to regulate

in the field of aircraft noise abatement. The views of FAA on the

authority of non-proprietor local agencies is that “[t]he scope of

their authority has been most clearly described in negative terms”,

and that their remaining authority in the field is limited solely to land

use controls. Noise Policy at 31-32. Since the Superior Court of the

State of California is in the class of local entities which do not own

airports, the Noise Policy again supports the conclusion reached by the

-2-

Court of Appeal that the Superior Court lias no role in the regulation

of aircraft in flight for noise abatement purposes.

C. The “‘Savings Clause”’ of the Federal Aviation Act Has Not

Been and Cannot Be Interpreted in a Manner Which Would

Permit Petitioners’ Tort Counts.

As recently as last term, this Court reaffirmed in Jones v. Rath

Packing Co., 97 S.Ct. 1305 (1977), that where Congress has

“*‘unmistakably . . . ordained’”’ that its enactments are to be the sole

regulation of an area of commerce, state laws regulating that aspect

of commerce are unconstitutional and impermissible. Id. at 1309.

While this result may be compelled by an express Congressional

command explicitly stated in the language of the statute, Jones

recognized that the Congressional command of preemption may also

be “implicitly contained in [the statute's] structure and purpose.” Id.

(Citing to Burbank). Under those circumstances, the issue then

becomes whether or not the state’s “ “law stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of

Congress.’ ”” Id.

It was after an extensive review of the legislative history of the

relevant statutes that this Court concluded in Burbank that the federal

government had preempted the field of airport noise control. 411

U.S. at 633. The Congressional goals and objectives identified in that

process included the need for a centralized federal authority to

maintain the “delicate balance” between airspace safety and

efficiency, protection of persons on the ground, as well as the control

of noise pollution. Id. at 638-639. The Court reaffirmed that local

governmental entities cannot regulate in this area so long as the

Congress requires federally directed uniformity. Quoting part of the

legislative history of relevant amendments to the Federal Aviation

Act, the Court noted:

BL we ee eee ae

othe

“**The courts have held that the Federal Govern-

ment presently preempts the field of noise

regulation insofar as it involves controlling the flight of

aircraft. . . . HR 3400 would merely expand the

Federal Government’s role in a field already

preempted. It would not change this preemption.

State and local governments will remain unable to

use their police powers to control aircraft noise by

regulating the flight of aircraft.’ ”’

411 U.S. at 635 (emphasis added).

Petitioners seek to escape the inevitable conclusion that their tort

counts may not serve as the basis for local regulation of aircraft in

flight by contending that, while the Superior Court may not be

permitted to regulate the operation of aircraft in flight, it is

permitted to regulate the consequences of such operations. In so

arguing, they rely upon the “savings clause’’ of the Federa! Aviation

Act (49 U.S.C. §1506).12/

2/

Petitioners also briefly mention provisions of the Airport and Airway

Development Act of 1970 (49 U.S.C. §§1701-1742) as support for their

private damage actions (Petition at 16). Provisions of the Airport and Airway

Development Act are the basis for the “grant agreement”’ counts of

petitioners’ complaints in the underlying actions (Counts 13 and 14). While

not conceding the validity of those causes of action, the Port District has

never demurred to them, and they have never been part of the record in the

courts below with respect to the preemption issue now presented to this

Court. Regardless of the merits of their grant agreement theories, there is

nothing in the Airport and Airway Development Act which even remotely

authorizes petitioners’ tort counts.

Petitioners also mention the Clean Air Amendments of 1970, 42

U.S.C. §§1857 et seq. They note that §1857h-2(e) permits exercise of any

rights under statute or common law “‘to seek enforcement of any emission

(footnote continued on next page)

-2%-

One commentator, analyzing savings clause arguments on federal

preemption questions, has characterized them as “‘makeweight

arguments” and has suggested that “‘neither the presence nor the

absence of a savings or exclusiveness provision is alone sufficient to

resolve a pre-emption question.”” Note, Pre-emption as a Preferential

Ground: A New Canon of Construction, 12 Stan.L.Rev. 208, 214-215

(1959). Savings clauses are always interpreted in the context of the

more specific provisions of the related legislation.

In Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426

(1907), this Court held that the Congressional purpose underlying the

Interstate Commerce Act was to eliminate discrimination by

creating uniform shipping rates to be regulated by the Interstate

Commerce Commission. 204 U.S. at 439. Given that purpose, the

Court held that a savings clause in the Act identical to that present in

the Federal Aviation Act would not permit a private damage action

attacking the reasonableness of rates which were subject to the

jurisdiction of the federal agency (204 U.S. at 446-447) because, the

Court concluded, “the act cannot be held to destroy itself.’’ Id. at

446.

The courts have applied the reasoning of Abilene to other private

damage actions relying upon the presence of a savings clause. In

Danna v. Air France, 334 F.Supp. 52 ($.D.N.Y. 1971), aff'd, 463 F.2d 407

(2d Cir. 1972), members of a purported class charged that numerous

airlines maintained a “Youth Fare”’ ticket pricing structure which

(footnote continued from previous page)

standard or limitation or to seek any other relief. . .’’ Nevertheless, this

Court has already determined the Clean Air Amendments to be preemptive

in scope (Washington v. General Motors Corp., 406 U.S. 109, 114-115 (1972); See

also, Virginians for Dulles v. Volpe, supra, 344 F.Supp. at 579). In any case,

petitioners have never alleged in any count of the underlying actions that

the Port District has violated any regulatory “emission standard or limita-

tion” in the operation of Lindbergh Field.

re

~

discriminated against persons older than twenty-five years in

violation of Section 404(b) of the Federal Aviation Act (49 U.S.C.

§1374(b)). The court held that the issue of discriminatory rates was

not a proper subject for judicial inquiry and dismissed the action

under the doctrine of primary jurisdiction (of the Civil Aeronautics

Board).4/ Examining the very “‘savings clause’’ upon which

petitioners rely, the court concluded:

“It is not likely that the Congress would legislate a

scheme under Federal agency aegis, aiming at

uniformity, and at the same time permit the survival

of State common law rights inconsistent therewith.

That was the holding in Texas & Pac. Ry. v. Abilene

Cotton Oil Co., supra, where it was determined that

a shipper could not sue a railroad carrier for an

allegedly unreasonable charge based on filed tariffs,

because the common law right was extinguished, as

3/

Petitioners suggest that a similar case, Nader v. Allegheny Airlines, Inc.,

426 U.S. 290 (1976) authorized “common law actions in areas subject to

exclusive federal (CAB) regulation.” Petition at 17. Nader was basically a

primary jurisdiction case. Its holding regarding the savings clause was

premised upon the fact that the CAB had not, to that point, regulated in the

area of airline ““over-booking”’ (426 U.S. at 297 n.8), and that the particular

language of Section 411 of the Act did not carry with it the “power to

immunize”. 426 U.S. at 301. Under those circumstances, the Court

determined that a private damage action for overbooking would not require

the trial court to “substitute its judgment” for that of the CAB. 426 U.S. at

299-300.

Nader is, therefore, readily distinguishable from the circumstances

here since: (1) The FAA has adopted extensive regulations regarding

aircraft in flight - including regulations adopted for noise abatement

purposes; and, therefore, (2) petitioners’ tort counts would require the trial

court in this case to “substitute its judgment” for that of FAA regarding the

regulation of aircraft in flight for noise abatement purposes.

x}

absolutely inconsistent with the scheme of the Inter-

state Commerce Act. It should be noted that the

‘saving’ provision in the ICA as it then stood was

virtually in haec verba the language later adopted by

the Congress in the ‘saving clause’ of the Federal

Aviation Act of 1958. It is clear, therefore, that the Act of

1958 had engrafted on to it, at least presumptively, the gloss

of Abilene with which the Congress was familiar.”

334 F.Supp. at 59 (emphasis added).

See also T.I.M.E. Inc. v. United States, 359 U.S. 464, 474 (1959) (this

Court will not assume that the Congress was unaware of Abilene,

supra, in drafting a similar “savings clause’’).

Further, this Court, the District Court (Lockheed Air Terminal, Inc.

v. City of Burbank, 318 F.Supp. 914 (C.D. Cal. 1970)) and the Ninth

Circuit Court of Appeals all agreed in Burbank that there had been a

Congressional intent, as ia Abilene, to impose a uniform scheme of

federal regulation. Each court also concluded that the savings clause

of the Federal Aviation Act could not be interpreted in a way which

would frustrate the otherwise expressly stated Congressional

objectives and goals in the Federal Aviation Act and related airport

noise legislation. In its opinion in Lockheed Air Terminal, Inc. v. City of

Burbank, 457 F.2d 667 (9th Cir. 1972), the United States Court of

Appeals for the Ninth Circuit stated:

“The State also points out that the Federal

Aviation Act contains a ‘saving clause,’ 49 U.S.C.

§1506, a reservation of common law and statutory

remedies, indicating that Congress did not intend to

preempt state and local.regulatory authority.

‘Of course such a general provision does

not resolve specific problems, Arrow

Transportation Co. v. Southern R. Co.,

372 U.S. 658, 671, n. 22[83 S.Ct. 984, 991,

10 L.Ed.2d 52], but its inclusion in the

ee

Se ae a ee ee ge ee tae

+

statute plainly is inconsistent with con-

gressional displacement of the state

statute unless a finding of that meaning is

unavoidable.’ Head v. New Mexico

Board of Examiners, 374 U.S. 424, 444, 83

S.Ct. 1759, 10 L.Ed.2d 983 (1963) (con-

curring opinion).

“In this case, we have found the conclusion of

federal preemption ‘unavoidable.’ Furthermore, the

Federal Aviation Act also contains language of

exclusivity. 49 U.S.C. §1508 declares that the

United States possesses and exercises ‘complete and

exclusive national sovereignty in the airspace of the

United States. . . .” That is the same type of

expression which the Supreme Court found in the

Federal Tobacco Inspection Act to evidence

Congressional intent to establish a wholly federal

system which States were powerless even to

supplement. Campbell v. Hussey, 368 U.S. 297, 82

S.Ct. 327, 7 L.Ed.2d 299 (1961).”

457 F.2d at 675.

In this Court's opinion in Burbank, it was the exclusivity language of

49 U.S.C. $1508 which was found to be of paramount importance.

411 U.S. at 626-627.

The true thrust of petitioners’ argument in this regard is sum-

marized at page 17 of their petition where they state: “Thus,

assuming arguendo that Congress had an intent that local regulation be

‘pre-empted’, private actions for damages are permitted for any adverse

consequences of the regulated activity.” (Petitioners’ emphasis). The

inherent sophistry of this argument was recognized lorig ago in the

often quoted opinion by Judge Dooling in American Airlines, Inc. v.

Town of Hempstead, 272 F.Supp. 226 (E.D.N.Y. 1967), aff'd, 398 F.2d

369 (2d Cir. 1968), cert. denied, 393 U.S. 1017. In that case, Judge

Dooling noted:

-B-

“Local initiative in noise control of aviation is

inherently an effort to regulate a consequence while

disclaiming regulation of the cause. It cannot

coexist with a comprehensive system of federal

regulation of aircraft manufacture (through certifi-

cates of airworthiness) and federal regulation of air

navigation and air traffic [citations omitted].””

272 F.Supp. at 235.

Regulation of the “consequence” is regulation of the cause. If

individual state courts are permitted to place the intricate system of

federal regulation of aviation under local control by adjudicating the

“reasonableness” of aircraft flight operations, and then to place their

policy determinations into effect through the award of money

damages, the Congressional objective of a uniform and exclusive

system of federal control of aircraft for noise abatement purposes

will not only be frustrated, it will be defeated. The savings clause of

the Federal Aviation Act cannot be applied in a way which would

preclude accomplishment of the Congressional objective of a

uniform federal solution to the national airport noise problem.

Ill. THE PETITION SHOULD BE DENIED BECAUSE

REVIEW IS UNWARRANTED AND UNTIMELY.

A. There Is No Conflict Between a Decision of the Highest

Court of a State and a United States Court of Appeals or

This Court Regarding a Matter of Federal Law. Nor Is

There a Conflict Between the Courts of Last Resort of

Two or More States.

As noted earlier, the opinion of the District Court of Appeal is

consistent with the holding of the United States Court of Appeals for

the Seventh Circuit in Luedtke v. County of Milwaukee, supra. Both

Luedtke and the opinion of the California District Court of Appeal

rely upon and are consistent with City of Burbank v. Lockheed Air

Terminal, Inc., supra. Therefore, even assuming, arguendo, that this

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Court should exercise its jurisdiction under 28 U.S.C. §1257(3), the

petition fails to meet the considerations of Section 1(a) of Rule 19 of

this Court.

“rurthermore, no conflict exists between the decisions of the

highest courts of two or more states concerning the federal question

involved here (see, ¢.g., United States v. Oregon, 366 U.S. 643, 645

(1961)); and the holding of the Court of Appeal that federal law has

preempted the regulation of aircraft in flight for noise abatement

purposes is uncontradicted by the decision of the highest court of any

State.

B. The Petition Should Be Denied Because It Seeks Review of

an Interlocutory Decision Addressed to an Issue Which Is

Not Dispositive of the Case.

Petitioners invoke the certiorari jurisdiction of this Court under

28 U.S.C. §1257(3) which restricts this Court’s appellate and

certiorari jurisdiction to matters involving “final judgments or

decrees”’. The petition here does not arise from a final judgment or

decree at the conclusion of all proceedings before the trial and

appellate courts of California. Rather, it is a petition which stems

from an interlocutory decision in the underlying litigation.

As previously stated, the Port District demurred generally to the

tort counts of petitioners’ complaints, and the Superior Court over-

ruled the demurrers. An order overruling a demurrer is not

appealable in California. Harmon v. De Turk (1917) 176 Cal. 758, 761.

The Port District sought relief by way of a writ proceeding in the

California District Court of Appeal, and the court refused to issue its

writ. While the court held that the regulation of aircraft in flight for

noise abatement purposes was federally preempted, it allowed the

Superior Court to adjudicate the liability of the Port District, if any,

for tortious conduct in respect of the management and utilization of

ground facilities at Lindbergh Field.

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In so doing, the intermediate appellate court issued evidentiary

guidelines to the Superior Court for application at trial (67

Cal. App.3d at 377-378) and instructed the trial court that recovery

for tort damages at trial “should be limited to those damages, if any,

which arise out of the operation of the airport itself’’. Id. at 378.

Furthermore, the court recognized that petitioners would seek

recovery from the Port District in inverse condemnation. Id. at 377.

There are a number of federal issues which require further

adjudication by the trial court, and which may require this Court’s

review at a later date, including:

1. A resolution of petitioners’ Fifth and Fourteenth Amendment

inverse condemnation claims;

2. The trial court’s interpretation and application of the

instructions of the Court of Appeal to the particular facts of

the underlying actions;

3. The adjudication of petitioners’ “grant agreement’’ counts,

which are not involved in this petition, and which rest upon

provisions of the Airport and Airway Development Act of

1970 (and associated federal regulations); and

4. The Port District has preserved (and will prosecute an appeal

from an adverse inverse condemnation judgment) the right to

ask this Court to reconsider its opinion in Griggs v. Allegheny

County, supra;'4/

Denial of the Petition for Writ of Certiorari will not preclude

petitioners from raising the question they pose here when the parties

return to this Court after a full trial on the merits. What petitioners

really seek from this Court is its advice concerning the instructions

14/

See, e.g., Note, Shifting Aircraft Noise Liability to the Federal Government, 61

Va.L.Rev. 1299 (1975).

oe

of a California Court of Appeal at an interlocutory stage of litigation

still pending in the California Superior Court. This Court does not

issue advisory opinions. Flast v. Cohen, 392 U.S. 83, 96-97 (1968).

Only rarely has this Court exercised its jurisdiction under 28

U.S.C. §1257(3) in situations involving writs. The relevant policy

considerations appear in Rosenblatt v. American Cyanamid Co., 86 S.Ct.

1 (1965). There, the prerequisites to a final judgment or decree were

held, inter alia, to be ‘‘a final assertion of jurisdiction, with no further

review of that issue possible in the state courts’’ and “a state judg-

ment on an issue anterior to and separable from the merits, and not

enmeshed in the factual controversies of the case.” Id. at 3.

Both of these considerations appear in Fisher v. District Court, 424

U.S. 382 (1976). There, the Montana Supreme Court had held that

the Montana trial court possessed jurisdiction over an adoption

proceeding in contravention of the Northern Cheyenne Indian Tribe

assertion to exclusive jurisdiction. Id. at 385. In Madruga v. Superior

Court, 346 U.S. 556 (1954), the California Supreme Court had

determined that a California trial court possessed admiralty

jurisdiction, again with no further review possible in the state courts.

Id. at 557. This Court held that both Fisher and Madruga were final for

purposes of its review. In each case, the issue was whether the forum

court had jurisdiction. In each case, the highest court of each state

determined that state court jurisdiction existed, and further review

of that issue was not possible in the state courts. Further review of the

federal issues in this case, as well as application by the trial court of

the instructions in the opinion of the Court of Appeal is not only

possible, it is virtually inevitable.

Finally, in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), the

Court declared: ‘‘Eminent domain proceedings are of the type that

may involve an interlocutory decision as to a federal question with

another federal question to be decided later.”’ 420 U.S. at 477 n.6.

The Court also reiterated the fundamental rule that where anything

further remained to be determined by a state court, no matter how

dissociated from the only federal issue that had been finally

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adjudicated, the final judgment rule would preclude review except

where “additional proceedings would not require the decision of

other federal questions that might also require review by the Court

at a later date”. Id. at 477.

CONCLUSION

“* “Federal control is intensive and exclusive. Planes

do not wander about in the sky like vagrant clouds.

They move only by federal permission, subject to

federal inspection, in the hands of federally certified

personnel and under an intricate system of federal

commands. The moment a ship taxis onto a runway

it is caught up in an elaborate and detailed system of

controls.’ ”’

City of Burbank v. Lockheed Air Terminal, Inc., supra, 411

U.S. at 633-634 (quoting Northwest Airlines, Inc. v.

Minnesota, 332 U.S. 292, 303 (1944) (Jackson, J.,

concurring)).

The California District Court of Appeal correctly concluded that

this pervasive, fundamental and exclusive federal control of aircraft

in flight prevents petitioners from placing regulation of aircraft

operations for noise abatement purposes under the control of local

courts; and the Petition for Writ of Certiorari should be denied.

Respectfully submitted,

LOUIS E. GOEBEL

MICHAEL SCOTT GATZKE

WALTER J. CUMMINGS, III

a LUCE, FORWARD, HAMILTON & SCRIPPS

1700 The Bank of California Plaza

110 West “A”’ Street

San Diego, California 92101

Attomeys for Respondent

SAN DIEGO UNIFIED PORT DISTRICT