Opposition — City of Los Angeles v. Greater Westchester Homeowners Ass'n

IN THE

it fs

October Term, 1979

No. 79-1406

City OF Los ANGELES, a municipal corporation,

Petitioner,

VS.

GREATER WESTCHESTER HOMEOWNERS ASSOCIATION, etc.,

et al.,

Respondents.

Respondents’ Brief in Opposition to Petition for Writ

of Certiorari to the Supreme Court of California.

ALVIN G. GREENWALD,

GREENWALD AND GREENWALD,

6300 Wilshire Boulevard,

Los Angeles, Calif. 90048,

(213) 653-3973,

JERROLD A. FADEM,

MICHAEL M. BERGER,

FADEM, BERGER & NORTON,

501 Santa Monica Boulevard,

P.O. Box 2148,

Santa Monica, Calif. 90406,

(213) 451-9951,

Attorneys for Respondents.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

ND AREIERR ect EER ap er me Pe agree 2

Additiona! Statutes and Regulations Involved........ 2

NE Or Tn I on in < ed ra aa pe Sada cee ae 3

Reasons Why the Writ Should Be Denied .......... 6

|

Damage Actions Are Not ‘‘Federally Pre-empted’’.

Federal Statutes Expressly Authorize the Type of

Common Law Action at Bench ............... 6

2

All Branches of the Federal Government—

Legislative, Executive and Judicial—Have Re-

peatedly Re-affirmed the Power of Airport

Operators to Control Aircraft Noise............ 9

CN SS ooo ee ag ne ore ee 17

TABLE OF AUTHORITIES CITED

Cases Page

Air Transport Assn. v. Crotti (N.D. Cal. 1975) 389

NR MN i 92s ae Sigs tas ky a} ape Wo owed 13, 15

British Airways Bd. v. Port Authority (2d Cir. 1977) 558

eS rele hb ol SNe ae URS Bh ee KE 12, 16

British Airways Bd. v. Port Authority (2d Cir. 1977) 564

ae Pa Wicks v CaN cn oA 456 5a 8 nee 12

City of Blue Ash v. McLucas (6th Cir. 1979) 596 F.2d

Pere a Sane one ty greene Ore aS See 12

City of Burbank v. Lockheed Air Terminal, Inc. (1973)

Oe Cee Ss cares ch anew sess 4 o 33, 43, 5

City of Inglewood v. City of Los Angeles (9th Cir. 1971)

ee ee ES oh ca aae ce ie a ee ied ake 94 65 00.4 7

Farmer v. United Brotherhood of Carpenters (1977) 430

Se Ne ee Nie ag Soins es waa ok ws 8

Griggs v. Allegheny County (1962) 369 U.S. 84 .... 3

Luedtke v. County of Milwaukee (E.D. Wis. 1974) 371

F.Supp. 1040, aff’d (7th Cir. 1975) 521 F.2d 387 . 8

Miree v. Dekalb County (1977) 433 U.S. 25........ 7

Nader v. Allegheny Airlines, Inc. (1976) 426 U.S. 290 8

National Aviation v. City of Hayward (N.D. Cal. 1976)

RT EET Shia a eens Peake wees 12, 13

Port of New York Authority v. Eastern Air Lines, Inc.

(6.D.N.¢. 1966) 259 F.Sapp. 145 2. cece eee 12

San Diego Bldg. Trades Council v. Garmon (1959) 359

aches Mae hiaa Mas pee oe hak eee PA a. 8

San Diego Unified Port Dist. v. Gianturco (S.D. Cal.

PPE ee FN Bs aS Nake aes ence ses e's 13

Schwartz v.. Texas (1952) 344 U.S. 199 ........... 6

ill

Page

Sears, Roebuck & Co. v. Carpenters (1978) 436 U.S.

ah Picked dnok suse oebkn eee Cues 8

United Construction Workers v. Laburnum Constr.

eee ek es eran 8

Miscellaneous

FAA, Aviation Noise Abatement Policy (Nov. 18, 1976)

Eee ee Oe e eT Tee OT Te ts 14, 15

Federal Register

43 Federal Register, p. ZO417 .. 2... ccc cc ccccces 14

44 Federal Register, pp. 9949, 9951 ............. . ii

Regulations

Code of Federal Regulations, Title 14, Sec. 36.5.3, 5, 10

Statutes

Airline Deregulation Act of 1978, 49 U.S.C. Sec.

DIE od Go geet Ode orion Cag mes bale 10, 11

Airport and Airway Development Act of 1970, 49

eg es EE a 6 be k 52 obeea ewan GS 7

California Constitution, Art. I, Sec. 1 ............. 9

Clean Air Amendments of 1970, 42 U.S.C., Sec.

MO, Van aks 8 kes aaa wee Lee 7

Federal Aviation Act of 1958, 49 U.S.C., Secs. 1301-

SEE Eee Tee oO er, eek woe. 7

Noise Control Act of 1972, 42 U.S.C, Sec. 4901(a)(3) 10

Noise Control Act of 1972, 49 U.S.C., Sec. 1431 ... 7

United States Code, Title 42, Sec. 7604(e) ....... a

United States Code, Title 49, Sec. 1305(b)(1) ..... a 2

United States Code, Title 49, Sec. 1506...1, 2, 7, 8, 17

IN THE

Supreme Court of the United States

October Term, 1979

No.79-1406

City OF Los ANGELES, a municipal corporation,

Petitioner,

vs.

GREATER WESTCHESTER HOMEOWNERS ASSOCIATION, etc.,

et al.,

Respondents.

Respondents’ Brief in Opposition to Petition for Writ

of Certiorari to the Supreme Court of California.

The Respondents Greater Westchester Homeowners As-

sociation, et al. (hereafter, the Homeowners), forty-one

neighbors of Los Angeles International Airport who were

awarded damages because of the injurious way in which the

City of Los Angeles operates its airport, respectfully request

this Court to deny the petition for writ of certiorari.

In applying settled federal law, the California Supreme

_ Court (which unanimously reached the same conclusion as

the Superior Court and the Court of Appeal) simply held

a tortfeasor accountable for the consequences of its own

conduct. The City’s petition ignores its own causative role

in the Homeowners’ injuries. The California Supreme Court

did not (see 26 Cal.3d at 98-99). The City’s petition also

ignores express Congressional preservation of suits such as

this (49 U.S.C. $1506).

sntih ate

Question Presented.

(a) Where Congress, the Department of Transportation,

the FAA, the CAB and the federal judiciary have repeatedly

and consistently declared that airport operators have the

power to enact regulations to control noise generated by

aircraft using their facilities, and

(b) where Congress expressly says that—notwithstand-

ing its extensive federal regulatory scheme—common law

actions may coexist harmoniously with the federal regula-

tions, then

Question: is it proper for a court to determine that an

airport operator’s failure to properly exercise its noise con-

trol power renders the operator liable to its neighbors for

damage caused by such failure?

Additional Statutes and Regulations Involved.

The following pertinent statutes and regulations are not

cited or quoted in the petition.

49 U.S.C. §1506:

‘*Nothing contained in this chapter shall in any way

abridge or alter the remedies now existing at common

law or by statute, but the provisions of this chapter are

in addition to such remedies.’’

42 U.S.C. §7604(e):

**Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any

emission standard or limitation or to seek any other

relief (including relief against the Administrator or a

State agency).”’

49 U.S.C. §1305(b)(1):

‘*Nothing in subsection (a) of this section shall be

construed to limit the authority of any State or political

oe

subdivision thereof or any interstate agency or other

political agency of two or more States as the owner or

operator of an airport served by any air carrier certif-

icated by the Board to exercise its proprietary powers

and rights.’’ (Section 105[b][1]; emphasis added.)

14 C.F.R. §36.5:

‘**Pursuant to 49 U.S.C. 1421(b)(4), the noise levels

in this part have been determined to be as low as is

economically reasonable, technologically practicable,

and appropriate to the type of aircraft to which they

apply. No determination was made, under this part,

that these noise levels are or should be acceptable for

operation at, into, or out of any airport.”’

Statement of the Case.

The City’s factual presentation lacks candor. It fails to

present to this Court the factual basis for the California

Supreme Court’s decision.

This suit seeks to have an airport operator accept the

financial responsibility for the consequences of operating

its airport in the manner it has chosen.

As the City acknowledges, this Court has established that

airport operators are liable for property damage caused by

, the noise of aircraft in flight. (Griggs v. Allegheny County

[1962] 369 U.S. 84.) The Griggs rule is not directly chal-

lenged by the City. But its rationale is sub silentio called

in question. The airport operator was held liable in Griggs

because of the operator’s choice of location, failure to ac-

quire buffer zones, and similar decisions which combined

to cause injury to nearby property.

The City’s petition opts for a neutron bomb approach:

i.e., the City acknowledges its duty to protect property, but

feels no responsibility for the people who live on the prop-

erty. Every level of California court expressly repudiated

aie ea

such an “‘ignore the people’’ approach (26 Cal.3d at 98).

It is no more persuasive this fourth time around.

The City does not challenge the sufficiency of the evi-

dence to sustain the judgment. That evidence demonstrated

the anguish suffered by the Homeowners because of the

way in which the City conducts its airport operations.

The trial court summed up the evidence as follows:

**The testimony of the plaintiffs as to the effects

suffered by them from the aircraft noise . . . estab-

lished that the jet aircraft noise interfered with person- ~

to-person conversation in the home, with the aility

to engage in normal telephonic communication, with

the ability to enjoy the use of the out-of-doors’ portion

of their property and with the ability to hear and enjoy

television programs; that such noise caused frequent

arousal from sleep and, in some cases, interfered with

the ability to engage in or to enjoy sexual relations.

With respect to family members of school age, the

testimony was to the effect that the jet aircraft noise

interfered with the ability to study in the home.’’ (Pet.,

App. C, p. 59).

**The defendant City’s acts of permitting jet aircraft

to use the runways of the Los Angeles International

Airport and emit the kind of noise which is injurious

to health or offensive to the senses so as to interfere

with plaintiffs’ comfortable enjoyment of their homes

constitute a method and manner of operating said Air-

port that creates a nuisance for which the defendant

City becomes liable in damages.’’ (Pet., App. C, p.

42).

Omitted entirely from the City’s factual statement is a

discussion of the acts of the City which caused the Home-

juigMiiss

owners’ injuries. Instead, the City prefers to place the blame

on **. . . aircraft in flight . . .’’ (Pet. 1, 2, 8, 12).

A fair presentation of the facts would have explained the

City’s active participation in the Homeowners’ injury. This

is discussed by the California Supreme Court, 26 Cal.3d

at 98-99. Suffice it to note at this point that it was the City

(not the pilots, the airlines or any other government agency)

that chose where to locate the airport, designed the airport,

decided on the location and direction of the runways, de-

cided how much neighboring property to acquire as a buffer

area, refused to institute noise control procedures and as-

siduously sought huge federal grants to expand its number

of jet operations without thought about the impact of the

increased use on its neighbors.

Although the airlines and aircraft using the airport possess

various certificates from the FAA and the CAB, none of

these certificates either authorizes or requires their use in

local situations where they may cause injury. Indeed, such

authorization is expressly disclaimed. E.g., while the FAA

certifies aircraft for use, its regulations warn:

**Pursuant to 49 U.S.C. 1421(b)(4), the noise levels

in this part have been determined to be as low as is

economically reasonable, technologically practicable,

and appropriate to the type of aircraft to which they

apply. No determination was made, under this part,

that these noise levels are or should be acceptable for

operation at, into, or out of any airport.’’ (14 C.F.R.

$36.5; emphasis added.)

Contrary to what one would conclude from the City’s

factual presentation, this suit asks the City to account for

its own actions.

That is all the judgment does.

iain,

REASONS WHY THE WRIT

SHOULD BE DENIED.

1

Damage Actions Are Not ‘‘Federally Pre-empted”’.

Federal Statutes Expressly Authorize the Type of

Common Law Action at Bench.

The City’s assertion that the Homeowners’ damages are

somehow ‘‘federally pre-empted’’ is puzzling. The federal

statutes dealing with aviation demonstrate the contrary.

Determining congressional intent to pre-empt or not

preempt is fundamental. It is intent which this Court has

repeatedly held to be determinative.

In Schwartz v. Texas (1952) 344 U.S. 199, 202, 203,

this Court stated:

“*If Congress is authorized to act in a field, it should

manifest its intention clearly. It will not be presumed

that a federal statute was intended to supersede the

exercise of the power of the state unless there is a clear

manifestation of intention to do so. The exercise of

federal supremacy is not lightly to be presumed.

‘*The principle thus applicable has been frequently

stated. It is that the Congress may circumscribe its

“ regulation and occupy a limited field, and that the in-

tention to supersede the exercise by the State of its

authority as to matters not covered by the federal leg-

islation is not to be implied unless the Act of Congress

fairly interpreted is in conflict with the law of the State.

[citations]’’ (Emphasis added.)

Well, then, what’s the situation at bench? Did Congress

intend a total pre-emption? Or, was its goal more limited?

Congress has enacted four groups of statutes regulating

aviation. Each of them preserves damage actions.

a, Om

The Federal Aviation Act of 1958, 49 U.S.C. §§1301-

1542 is the most pervasive. It occupies chapter 20 of Title

49 of the United States Code, and governs the CAB as well

as the FAA, and economic as well as safety and noise

regulation of civil aviation.

Notwithstanding this extensive regulation, 49 U.S.C.

§1506 expressly permits common law suits such as the

Homeowners’:

**Nothing contained in this chapter shall in any way

abridge or alter the remedies now existing at common

law or by statute, but the provisions of this chapter are

in addition to such remedies.’’ (Emphasis added.)

The Airport and Airway Development Act of 1970 (49

U.S.C. §§1701-1742) has been held expressly enforceable

by airport neighbors in suits against airport operators. City

of Inglewood v. City of Los Angeles (9th Cir. 1971) 451

F.2d 948, 955-956. See also Miree v. Dekalb County (1977)

433 U.S. 25.

The Clean Air Amendments of 1970 also expressly permit

suits by private citizens (42 U.S.C. §7604|e}):

**Nothing in iis section shall restrict any right which

any person (or class of persons) may have under any

Statute or common law to seek enforcement of any

emission standard or limitation or to seek any other

relief (including relief against the Administrator or a

State agency).’’ (Emphasis added.)

This is relevant because a jet’s black trail of exhaust emis-

sions, fumes and sooty fallout, are significant parts of the

injury to the Homeowners.

The aviation provisions of the Noise Control Act of 1972,

49 U.S.C. $1431, are codified as part of chapter 20 of Title

49 U.S.C. They are thus subject to 49 U.S.C. $1506 quoted

above.

= 2s

Indeed, this Court recently confirmed the propriety of

private, common law actions affecting aviation, though sub-

ject to exclusive federal (CAB) regulation. See Nader v.

Allegheny Airlines, Inc. (1976) 426 U.S. 290, 298-300.

Thus, assuming arguendo that Congress had an intent

that local regulation of flights be ‘‘pre-empted’’, private

actions for damages are permitted for adverse consequences

of the regulated (flight) activity."

This Court recently dealt with a similar problem (also

arising i California) under the National Labor Relations

Act. In Farmer v. United Brotherhood of Carpenters (1977)

430 U.S. 290, this Court vacated the judgment of a Cali-

fornia Court of Appeal and held that the National Labor

Relations Act did not pre-empt the right of a union member

to sue a union for tort in state court. In upholding the

individual’s right to maintain common law, state court suits

in a Federally regulated area, this Court emphasized the

state’s interest in protecting its citizens from tortious injury,

and the concurrent lack of Federal interest in protecting

tortious conduct from redress (430 U.S. at 299-303.)

(Likewise, see Sears, Roebuck & Co. v. Carpenters (1978)

436 U.S. 180, 194-198; United Construction Workers v.

Laburnum Constr. Corp. (1954) 347 U.S. 656, 663-664.)

'In Luedtke v. County of Milwaukee (E.D. Wis. 1974) 371 F.Supp.

1040, aff'd, (7th Cir. 1975) 521 F.2d 387 (cited in the Petition), the

U.S. District Court dismissed the action against the airport operator on

the ground that the state court was the appropriate forum for trying all

claims—including claims for punitive damages (see 371 F.Supp. at

1044). That is hardly authority for dismissing a state court cause of

action. Indeed, it appears to be the contrary.

That is why the City’s reliance on San Diego Bldg. Trades Council

v. Garmon (1959) 359 U.S. 236, is misplaced. Garmon dealt with a

field almost totally pre-empted. That is not so here. But even in Gar-

mon’'s field (labor relations) this Court has consistently recognized

exceptions and permitted common law tort suits. And recall that in the

aviation context, there is express recognition of such suits (49 U.S.C.

§1506) which is absent in labor law.

ee

The same is true here. California courts have both a

Constitutional mandate (Cal. Const., Art.1, $1) and legit-

imate interest in protecting Californians from tortious injury

inflicted by jet noise and air pollution. Likewise, though

Congress has sought to foster aviation, it does not condone

nor require operation of jet airports in such a manner or

location that injury is inflicted on their neighbors. Quite the

contrary. As discussed below, the position of the Federal

government has been consistent and clear: it is the respon-

sibility of each airport operator to ensure that its airport is

operated under such local regulations as will avoid injury

to nearby people and property—even if that means excluding

noisy aircraft.

2

All Branches of the Federal Government—Legis-

lative, Executive and Judicial—Have Repeatedly

Re-affirmed the Power of Airport Operators to

Control Aircraft Noise.

It is startling that the City’s petition seeks to create the

impression that the Federal government has so occupied the

field that no room is left for airport operators—acting as

proprietors—to control what happens at their own facilities.

The City is able to so assert only by mis-stating the holding

in the authority it does cite (City of Burbank v. Lockheed

Air Terminal, Inc. [1973] 411 U.S. 624), * and by omitting

any but the most oblique reference’ to the continuous state-

*Burbank involved police power regulation by the city in which an

airport was located. It did not involve the power of an airport proprietor.

See Pet. 14 where, without noting the conflict with the sweeping

generalities presented elsewhere in the petition, the City says:

**Petitioner is not unmindful of the progeny of Burbank, which

recognize the power of an airport proprietor to impose reasonable

and nondiscriminatory airport use restrictions which do not create

a burden on interstate commerce.”’

Candor would seem to call for a discussion of—or at least a citation

to—‘*. . . the progeny of Burbank . . .”’

ensieliinss

ments to the contrary by the federal judiciary, Congress,

the Department of Transportation, the FAA and the CAB.

The California Supreme Court was not taken in by the City’s

evasion-of-contrary-authority ploy. The decision below sim-

ply applies settled federal law.

First. While attempting to provide federal impetus to

control noise, Congress has consistently recognized the role

of local government.

The Noise Control Act of 1972 provides:

**(3) that, while primary responsibility for control

of noise rests with State and local governments, Federal

action is essential to deal with major noise sources in

commerce control of which require national uniformity

of treatment.’’ (42 U.S.C. §4901[a][3]; emphasis

added.)

With respect to aircraft noise, the federal role has been to

establish certification standards for types of aircraft (Federal

Aviation Regulations, part 36). But these FAA standards—

on their face—authorize more stringent regulation by air-

port operators:

‘*Pursuant to 49 U.S.C. 1421(b)(4), the noise levels

in this part have been determined to be as low as is

economically reasonable, technologically practicable,

and appropriate to the type of aircraft to which they

apply. No determination was made, under this part,

that these noise levels are or should be acceptable for

operation at, into, or out of any airport.’’ (14 C.F.R.

§36.5; emphasis added.)

Moreover, the Airline Deregulation Act of 1978 provides:

‘*Nothing in subsection (a) of this section shall be

construed to limit the authority of any State or political

subdivision thereof or any interstate agency or other

political agency of two or more States as the owner

or operator of an airport served by any air carrier

certificated by the Board to exercise its proprietary

powers and rights.’’ (49 U.S.C. §1305[b][ 1]; emphasis

added. )

The CAB reads this section as preserving the proprietary

rights historically enjoyed by airport operators. In its initial

statement of policy under the Act (Feb. 7, 1979), the CAB

said:

**. . . State and local authorities may continue to ex-

ercise their proprietary powers and rights as owners or

operators of airports served by federally certificated air

carriers.”’ (44 Fed. Reg. 9949.)

**Finally, we conclude that Congress has not changed

the status quo with respect to the rights and powers of

local governments to take certain actions in their ca-

pacity as airport owners and proprietors under case

law. See, City of Burbank v. Lockheed Air Terminal,

Inc. 411 U.S. 624, 635, n.14 (1973).’’ (44 Fed. Reg.

9951.)

Congress has recognized the proprietary power of airport

operators to control noise, and the CAB and FAA acknowl-

edge that power.

Second. The Courts have confirmed this power. In the

Concorde controversy, the Second Circuit Court of Appeals

put it this way:

‘*The task of protecting the local population from

airport noise, however, has fallen to the agency, usu-

ally of local government, that owns and operates the

airfield. Air Transport Ass'n v. Crotti, 389 F.Supp.

58 [ND Cal. 1975] (three judge court); National Avia-

tion v. City of Hayward, 418 F.Supp. 417 (ND Cal.

1976). It seemed fair to assume that the proprietor’s

intimate knowledge of local conditions, as well as his

ak

ability to acquire property and air easements and assure

compatible land use, cf. Griggs v. Allegheny County,

369 U.S. 84, 82 S.Ct. 531, 7 L.Ed. 585 (1962), would

result in a rational weighing of the costs and benefits

of proposed service. Congress has consistently reaf-

firmed its commitment to this two-tiered scheme, and

both the Supreme Court and executive branch have

recognized the important role of the airport proprietor

in developing noise abatement programs consonant

with local conditions.’’ (British Airways Bd. v. Port

Authority [2d Cir. 1977] 564 F.2d 1002, 1010-1011;

emphasis added. )

In what has become a famous footnote, this Court ap-

provingly quoted some legislative history in City of Burbank

v. Lockheed Air Terminal, Inc. (1973) 411 U.S. 624, 635,

fn. 14:

‘*The letter from the Secretary of Transportation also

expressed the view that the proposed legislation will

not affect the rights of a State or local public agency,

as the proprietor of an airport, from issuing regulations

or establishing requirements as to the permissible level

of noise which can be created by aircraft using the

airport. Airport owners acting as proprietors can pres-

ently deny the use of their airports to aircraft on the

basis of noise considerations so long as such exclusion

is nondiscriminatory ... This portion as well was

quoted with approval in the Senate Report.’’ (Emphasis

added. )

The Burbank rule has been applied repeatedly by the

federal courts.” E.g., in National Aviation v. City of Hay-

ward (N.D. Cal. 1976) 418 F.Supp. 417, 424:

‘In addition to the cases quoted in the text, see British Airways Bd.

v. Port Authority (2d Cir.1977) 558 F.2d 75, 81-82; City of Blue Ash

v. McLucas (6th Cir. 1979) 596 F.2d 709, 712: cf. Port of New York

Authority v. Eastern Air Lines, Inc. (E.D. N.Y. 1966) 259 F.Supp.

745, 751-757.

es Oa

‘*Accordingly, while the Congressional purpose was

undoubtedly clear enough to the Burbank majority to

rule that a municipality’s police power regulations re-

garding aircraft noise at an airport, which it was not

the proprietor of, invaded an area exclusively reserved

for federal control, this court cannot, in light of the

clear Congressional statement that the amendments to

the Federal Aviation Act were not designed to and

would not ‘prevent airport proprietors from excluding

any aircraft on the basis of noise considerations,’ make

the same finding with respect to regulations adopted

by municipal airport proprietors.’’ (418 F.Supp. at

424; emphasis added; footnotes omitted.)

A three judge District Court explained it this way:

**It is now firmly established that the airport pro-

prietor is responsible for the consequences which attend

his operation of a public airport; his right to control

the use of the airport is a necessary concomitant,

whether it be directed by state police power or his own

initiative. . . . That correlating right of proprietorship

control is recognized and exempted form judicially

declared preemption by footnote 14.’’ (Air Transport

Assn. v. Crotti [N.D. Cal. 1975] 389 F.Supp. 58, 63-

64 emphasis added.)

Another court aptly summed it up:

‘*The courts recognize that an airport proprietor may

restrict the use of its facilities on the basis of noise

considerations without running afoul of the preemption

doctrine. [Citations]’’ (San Diego Unified Port Dist.

v. Gianturco [S.D. Cal. 1975] 457 F.Supp. 283, 291.)

The federal judiciary has thus repeatedly and unequivo-

cally confirmed the power of airport proprietors.

po Wee

Finally. The executive branch has repeatedly acknowl-

edged the scope of proprietor power. As the FAA summed

it up in June, 1978:

‘*Congress has the power under the Constitution to

regulate the operations of airports for noise abatement

purposes, but it has chosen not to do so. This congres-

sional policy leaves airport proprietors responsible for

the regulation of their airports for noise abatement

purposes. The proprietors may issue noise-related air-

port use restrictions that are not unjustly discriminatory

and do not impose an undue burden on interstate or

foreign commerce. The Chicago Convention and bi-

lateral air services agreements do not alter this basic

feature of American aviation law.’’ (43 Fed. Reg.

28417; emphasis added.)

‘*‘This recognition of the unique capacity and re-

sponsibility of the airport proprietor to effect a ‘rational

weighing of the costs and benefits of proposed service’

is the foundation of the ‘local option’ policy underlying

FAA noise abatement rulemaking since part 36 was

originally issued in 1969.’’ (43 Fed. Reg. 28417.)

This recent statement confirmed a November, 1976 FAA

policy decision (FAA, Aviation Noise Abatement Policy

[Nov. 18, 1976]):

‘Our concept of the legal framework underlying this

policy statement is that proprietors retain the flexibility

to impose such restrictions if they do not violate any

Constitutional proscription. We have been urged to

undertake—and have considered carefully and re-

jected—full and complete federal preemption of ihe

field of aviation noise abatement. In our judgment the

control and reduction of airport noise must remain a

shared responsibility among airport proprietors, users,

and governments.”’ (p. 34; emphasis added.)

‘The primary obligation to address the airport noise

problem always has been and remains a local respon-

sibility.”’ (p. 2)

In 1975, the Crotti court quoted the FAA as follows (389

F.Supp. at 64):

‘*The preamble to 14 C.F.R., Part 36, emphasizes

that local air proprietors have the responsibility for

determining the permissible noise levels for aircraft

using their airport:

*** Compliance with Part 36 is not to be construed as

a Federal determination that the aircraft is ‘‘accepta-

ble,’’ from a noise standpoint, in particular airport

environments. Responsibility for determining the per-

missible noise levels for aircraft using an airport re-

mains with the proprietor of that airport. The noise

limits specified in Part 36 are the technologically prac-

ticable and economically reasonable limits of aircraft

noise reduction technology at the time of type certi-

fication and are not intended to substitute federally

determined noise levels for those more restrictive limits

determined to be necessary by individual airport pro-

prietors in response to the locally determined desire

for quiet and the locally determined need for the ben-

efits of air commerce’; . . .”” (Emphasis added.)

In 1973, this Court—in Burbank—quoted a letter from

the Secretary of Transportation (the FAA is within the De-

partment of Transportation). The letter had been approv-

ingly quoted in House and Senate reports (411 U.S. at 635,

fn. 14):

‘‘the proposed legislation will not affect the rights of

a State or local public agency, as the proprietor of an

airport, from issuing regulations or establishing re-

pe EB

quirements as to the permissible level of noise which

can be created by aircraft using the airport. Airport

owners acting as proprietors can presently deny the

use of their airports to aircraft on the basis of noise

considerations so long as such exclusion is nondiscrim-

inatory.”’ (Emphasis by the Court.)

This acknowledgment has consistently been made by the

executive branch in litigation.

For example, in the Concorde litigation, the Court of

Appeals said:

**In response to our request, the United States filed

an amicus brief in which it urged that Secretary Cole-

man’s order was never intended to deprive the Port

Authority of the right to condition utilization of the

facilities at JFK on the Concorde’s compliance with

reasonable noise regulations. The Government, indeed,

went further, and denied that existing legislation au-

thorized the Executive under any circumstances to

preempt airport proprietors from promulgating their

own noise regulations.

‘*This conclusive statement of the United States po-

sition confirms our independent assessment of the pub-

lic record.’’ (British Airways Bd. v. Port Authority

[2d Cir. 1977] 558 F.2d 75, 81-82; emphasis added.)

In short, the legislative, executive and judicial branches

of the federal government have repeatedly and consistently

acknowledged the regulatory power of airport proprietors.

The California courts imposed liability because of the

City’s mis-use and non-use of its own power. Contrary to

the City’s petition, that is what this case is all about. It has

nothing to do with anyone other than the City ‘‘regulating”’

ae, Oe

the airport. The City has been held accountable for the way

it has used and abused its power. Courts have done that for

centuries.

Conclusjon.

Factually, the petition ignores the City’s active partici-

pation in the Homeowners’ injury.

Legally, the petition ignores most of the pertinent au-

thorities, and either over-simplifies, over-states or mis-states

the few authorities it cites.

The California Supreme Court merely held a tortfeasor

accountable for its own actions. That is clearly in line with

the Congressional design. That is why Congress expressly

preserved common law forms of action (49 U.S.C. $1506)

at the time it adopted the extensive federal regulatory format.

There is no need to disturb the judgment of the California

courts. The Respondents pray that the petition be denied.

Respectfully submitted,

ALVIN G. GREENWALD,

DOROTHY THOMPSON,

GREENWALD AND GREENWALD,

JERROLD A. FADEM,

MICHAEL M. BERGER,

FADEM, BERGER & NORTON,

By MICHAEL M. BERGER,

Attorneys for Respondents, Greater West-

chester Homeowners Assn., et al.