# Opposition — City of Los Angeles v. Greater Westchester Homeowners Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2215%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 820 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2215%3A02. Public record. Not legal advice.