Petition for Writ of Certiorari — City of Long Beach v. Aircal Inc.

| PTeeD

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02

8 6 2 0 JUN 13 1987

' JOSEPH F. SPANIOL, UR,

eee CLERK

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

City OF LONG BEACH, LONG BEACH CITY COUNCIL,

EvaN BRAUDE, WALLACE EDGERTON, JAN HALL,

THOMAS J. CLARK, ERNIE KELL,

Ray GRABINSKI, ED TUTTLE, AND WARREN HARWOOD,

Petitioners,

VS.

AIRCAL INC., AMERICA WEST AIRLINES,

WESTERN AIRLINES, TRANSWORLD AIRLINES, INC.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals, Ninth Circuit, Nos. 86-6661 and 86-6662

(C.D. Cal. No. CV 83-4065 LEW)

PETITION FOR WRIT OF CERTIORARI

JOHN R. CALHOUN, CITY ATTORNEY,

ROGER P. FREEMAN,

Deputy City ATTORNEY

and

KADISON, PFAELZER, WOODARD,

QUINN & Ross!

LEE L. BLACKMAN

CHARLES G. BAKALY III

707 Wilshire Boulevard

Fortieth Floor

Los Angeles, California 90017

Telephone: (213) 688-9000

Attorneys for Petitioners

Bowne of Los Angeles, Inc., Law Printers. (213) BOWNE CO

(i)

QUESTION PRESENTED FOR REVIEW

Whether a district court has discretion to determine

the minimum number of jet flights to be permitted at a

municipal airport neither owned nor operated by the

federal government?

PARTIES BELOW

The parties to the proceedings in the U.S. Court of

Appeals for the Ninth Circuit from which review is sought

are Petitioners the CITY OF LONG BEACH, the LONG

BEACH CITY COUNCIL, EVAN BRAUDE, WALLACE

EDGERTON, JAN HALL, THOMAS J. CLARK,

ERNIE KELL, RAY GRABINSKI, ED TUTTLE, and

WARREN HARWOOD,* and Respondents AIRCAL

INC., AMERICA WEST AIRLINES, WESTERN AIR-

LINES, and TRANSWORLD AIRLINES, INC.

*Petitioners state that they have no parent companies, subsidiar-

ies, or affiliates to list pursuant to Supreme Court Rule 28.1.

(ii)

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW....... i

PARTING BRIOW......... 2.0.5. .0cccccvecess: i

OPINIONS BELOW ...............0ccceeceees 3

FB IRN cP eA re rere eee 3

CONSTITUTIONAL PROVISIONS AND STAT-

UTES INVOLVED ..................6. we 4

STATEMENT OF THE CASE.................. 4

REASONS FOR GRANTING THE WRIT ....... 9

THE NINTH CIRCUIT’S ASSUMPTION THAT

THE DISTRICT COURT HAD DISCRETION

TO DETERMINE THE MINIMUM NUMBER

OF FLIGHTS AT A MUNICIPAL AIRPORT IS

UNPRECEDENTED AND UNSUPPORTABLE 12

A. The City Has Clear Authority to Enact Noise

Ordinanees, and Such Ordinances are Enti-

tled to Substantial Deference ............. 12

B. The Federal Interest in Interstate Commerce

Does Not Compel Airports or Their Neigh-

bors to Accept Environmental Burdens Fairly

Determined to be Excessive............... 15

C. The City’s Refusal to Permit Additional

Flights Until Cumulative Noise Has Been

Reduced to Acceptable Levels Was Supported

by Substantial Evidence .................. 17

1. It was Clearly Reasonable to Delay Flight

Increases Until Achievement of the City’s

| Peer re re eye ee. 18

(iii)

TABLE OF CONTENTS

2. The City’s Refusal to Shift Noise From

One Part of the Community to Another in

Order to Achieve One Noise Goal at the

Expense of Another Was Clearly Sensible

3. The City’s Refusal to Discriminate

Against Other Users of the Airport in

Order to Allocate Additional Flights to

the Air Carriers Had Substantial Justifi-

ae UOC kel ss cBMa eek canbe se

D. Even If Some Relief Were dient. The

District Court’s Order Was Overbroad .....

MCLG e NGA UC SiN Ch bakes des veces caan

INDEX TO APPENDICES

APPENDIX A. Opinion of Ninth Cireuit Court of

NS tea hee chs eae ews

APPENDIX B. Order of the United States District

Court for the Central District of

a de ds wk bas

z

20

23

25

26

Al

(iv)

TABLE OF AUTHORITIES

Cases

| _ Page

Aircraft Owners and Pilots’ Ass’n v. Port Authority

of New York, 305 F.Supp. 93 (E.D.N.Y. 1969) ..14, 19

_Atr Transport Association v. Crotti, 389 F.Supp. 58

CR EE a ob cece seshcabeboeee waxed 14

Baker v. Burbank-Glendale-Pasadena Airport Author-

ity, 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866

(1985), cert. denied, : a, 5 8

1200, 89 L.Bd.2d 314 (1986) .................. 6

Berman v..Parker, 348 U.S. 26, 32, 75 S.ct. 98, 99

Ss ee Se so ik ean ed bck cee ek 19

- British Airways’ Board v. Port Authority of New

York, 558 F.2d 75 (2d Cir. 1977) ...10, 11, 18, 14, 15, 25

British Airways Board v. Port Authority of New

York and New Jersey, 437 F.Supp. 804 (S.D.N.Y.

) , SORRCnye aa eae Pe er Tee eee Pe ee 15, 25

British Airways Board v. Port Authority of New York

and New Jersey, 564 F.2d 1002 (2d Cir. 1977) ..15, 25

Brown v. ITT Rayonier Inc., 497 F.2d 234 (5th Cir.

ooo ae eS ee ee Eee 17

Brotherhood of Locomotive Firemen & Engineermen v.

Chicago, Rock Island & Pacific Railroad Co., 393

U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968) ..11, 14

California Coastal Commission v. Granite Rock Com-

pany, U.S. ——, 107 S.Ct. 1419, 94 L.Ed.2d

ee MED avi ka vn kaka be ee 6s hk Ok bebe eas 10

California v. LaRue, 409 U.S. 109, Fn.3, 93 S.ct. 390,

34 L.Ed.2d 342 (1972) (Marshall, J. dissenting) 18

Capobianco v. First National Bank of Pelmerton, 372

fT eR ere ee 25

(v)

TABLE OF AUTHORITIES

CASES ©

Page

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

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

PS eee CrP OE Pee ee ere ea ey 9,11, 13

City of Houston v. FAA, 679 F.2d 1184 (5th Cir.

MR cis oa da bee baa be eh eo entes 16

City of San Antomo v. CAB, 374 F.2d 326 (D.C.

wk be sae eee ke riedebackenbhecadss 16

CTS Corp. v. Dynamics Corporation of America,

if See ee Gs re Nee Bae 10

DePerri v. Federal Aviation Administration, 671 F.2d .

54 (lst Cir.-1982) ..,..... PETE PEER re ey ee 13

Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4

Re EE COED Fics cwencuussaveccuesenbes 14

Global International Airways Corp. v. Port Authority

of New York and New Jersey, 727 F.2d 246 (2d Cir.

DOE i.e ok es 0b da Rae 14

Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8

eB 8 Pre re ee Pe ere 14

Greater Westchester Homeowners Ass’n v. City of Los

Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d

1329 (1970), cert. denied, 449 U.S. 820, 101 S.Ct.

ge go UE UE errr er Tere 6

Griggs v. Allegheny County, 369 U.S. 84, 82S:Ct.531,

T Rs Se SE oie sca bnh aa wes Rees 17

Jett v. Castaneda, 578 F.2d 842 (9th Cir. 1978) ...19, 25

Kassel v. Consolidated Freightways Corp., 450 U.S.

662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (Bren-

Ci, Ti, Co ooh oo es ba ee eae 14

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 93 S.Ct. 1001, 35 L.Ed. 200 (1973) ........ 14

(vi)

TABLE OF AUTHORITIES

CASES

Page

_ Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984) ... 25

Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84

i ee ED oka 00 0daded Seeuonkseeesees 14

Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49

ME: GE cic Tincdds bacséceas waeuars 19

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,

101 S.Ct. 715, 66 L.Ed.2d 659 (1981) .......... 14

National Aviation v. City of Hayward, 418 F.Supp.

Ge Ses I a 4s oth hes 04 0 edexeceuseRes 16, 19

Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct.

S44, 36 L.Bd.Bd 174 (1970) . nc. cc ceccccccscess 2,11

Santa Monica Airport Ass’n v. City of Santa Monica,

481 F.Supp. 927 (C.D.Cal. 1979), aff'd 659 F.2d

1GD COG Cae. TRGE). onc ceccscscs 11, 13, 14, 15, 17, 19

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104

S.Ct. 106, 78 L.Ed. 443 (1984) ................ 10

Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804

(9th Cir.), cert. denied, 375 U.S. 821, 84 S.Ct. 59,

oe Re Ee re rr rr 25

Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986) 25

Umted States v. County of Westchester, 571 F.Supp.

Se RS EE, Win nnn cee Sec ndeliicscens 16

United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673,

ee ee CDs wa c ce Gast bewencaeeees< 18

United States v. The State of New York, 552 F.Supp.

255 (N.D.N.Y. 1982), 708 F.2d 92 (2d Cir. 1983),

cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80

ee ee rr nee 16

Village of Belle Terre v. Boraas, 416 U.S. 1, 94

S.Ct. 1536, 39 L.Ed.2d 797 (1974) ......... 16, 17, 19

(vii)

TABLE OF AUTHORITIES

CASES

Page

Wardair Canada, Inc. v. Florida Department of Reve-

nue, U.S. ___, 106 S.Ct. 2369, 91 L.Ed.2d 1

EN | chersasdNe a Newb se euWad sae bas cedeaeaen 10

Warner Brothers Pictures v. Gittone, 110 F.2d 292

ee eee ceed eek sw aeee nes 25

Washington Capitols Basketball Club, Inc. v. Barry,

Bf Fg. os | ere 25

Western International Hotels v. Tahoe Regional Plan-

ning Agency, 387 F.Supp. 429 (D.Nev. 1975), aff'd

in part, rev'd in part, and vacated in part, 566 F.2d

1353 (9th Cir. 1977), aff’d in part, rev’d in part,

and vacated in part, 440 U.S. 391, 99 S.Ct. 1171, 59

STE MRR Cad cawecsuscbalescceavens 14

Constitution

Constitution of the United States, Article I, Sec-

ee EE OE clita dn tics cheb aiae kun ts 4

Constitution of the United States, Article VI, Para-

SEE 6. 64: kn Ch ne ce whndaeeene see deenese sees 4

Statutes

Be es: Se I os dn ee re decasacducaca 4

ey We HI ERD hn rec caciveccsnaccuces 4

ee ee I END cba weccckcccccacesias 3

OP a BN IN 6 bb cae dacnceeudadcas 23

Other Authorities

Federal Aviation Regulations, 14 C.F.R. Section 150

OOM, bc ocdnccex¥ecahivsse subd nusensenee ness 6

- Federal Aviation Regulations, 14 C.F.R. Part 36, 34

PO, SO, Hee OO 6 ak dan cascusanneeuvias 10, 13

(viii)

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Page

Federal Aviation Regulations, 14 C.F.R. Parts

91.3(a), SLBT(E) (A), SLBOGD) . ccc ccccccccoces 23

Sen.Rep.No. 1353, 90th Cong. 2d Sess. (1968)

reprinted in (1968) U.S. Code Cong. & Ad. News

DPS WE eee ee ehee Tew badb eb ead eesdeeenee 13, 19

FAA Advisory Circular 91-53 ................... 23

21 Cal. Admin. Code, Section 5003............... 22

Rules of United States Supreme Court, Rule 28.1 i

* *

elias: cule eae eel

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1986

CiTy oF LONG BEACH, LONG BEACH CITY COUNCIL,

EVAN BRAUDE, WALLACE EDGERTON, JAN HALL,

THoMAS J. CLARK, ERNIE KELL,

RAY GRABINSKI, ED TUTTLE, AND WARREN HARWOOD,

Petitioners,

vs.

AIRCAL INC., AMERICA WEST AIRLINES,

WESTERN AIRLINES, TRANSWORLD AIRLINES, INC.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals, Ninth Circuit, Nos. 86-6661 and 86-6662

(C.D. Cal. No. CV 83-4065 LEW)

PETITION FOR WRIT OF CERTIORARI

Petitioners, the City of Long Beach, the Long Beach

City Council, and its individual members (colleétively the

“City”), pray that a writ of certiorari issue to the United

States Court of Appeals for the Ninth Cireuit to review

that Court’s decision affirming an unprecedented

m&ndatory injunetion of the Federal District Court for

the Central District of California which, inter alia, com-

. pels the proprietor of the Long Beach Municipal Airport

2

(the “Airport”) to allow a 44 percent increase in the

number of air carrier jet takeoffs and landings.’

The injunction trammels legitimate local environmental

goals by compelling increases in flights by the most

environmentally disruptive class of aircraft when commu-

nity noise from airport operations already exceeds crite-

ria for maximum exposure which none of the respondents

challenge.” Although premised on the federal interest in a

“vibrant national transportation system” (Appendix B, p.

B-2), the Order makes no finding, express or implied, that

Congress has preempted the power of airport proprietors

to limit community noise from aircraft operations or that .

the burden on commerce imposed by the City’s environ-

mental regulation “is clearly excessive in relation to the

putative local benefits” of the ordinance. Pike v. Bruce

Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25

L.Ed.2d 174 (1970). Nor is there any finding of diserimi-

nation against interstate commerce.

Review by this Court is appropriate because this case

implicates the problems of airport capacity which have

been the subject of ongoing Congressional serutiny, FAA

notices of proposed rulemaking, industry attention, and

publie concern’ and the injunction in issue posits a solu-

'The injunction also results in an 80 percent increase in the number

of air carriers using the Airport and a 40 percent increase in the

number of passengers; all notwithstanding evidence that the passen-

ger terminal and related facilities are already overtaxed during peak

periods.

*Noise from existing aircraft operations has already precipitated in

excess of 1,280 nuisance and inverse condemnation suits against the

City — suits which the respondents and the United States assert are

the sole responsibility of the City.

‘Since January 1, 1986, more than 200 articles have treated the

problem of noise and capacity at airports around the nation. A

January 31, 1986 article in The Washington Post discusses a recent

2] ——————————E—eE

3

tion to this national problem which flatly contradicts the

principles of federalism enunciated by this Court in its

dormant Commerce Clause cases.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Cireuit is unreported. It is set forth in Appen-

dix A at page A-1. The District Court’s Order compelling

new flights is also unreported. It is set forth in Appendix

B at page B-1.

In relevant part, the District Court concluded “that the

record raises serious questions as to the reasonableness

and fairness of the City’s program to limit growth at

Long Beach Airport.” (Appendix B, p. B-3.) The Court

thus ordered the City to increase the permissible number

of air carrier flights notwithstanding undisputed evidence

that noise from present operations already exceeds the

‘City’s unchallenged noise goal. The Ninth Circuit pre-

sumed that the District Court had discretion to dictate

“the appropriate minimum number of flights to be permit-

ted” at the Airport and refused to find a clear abuse of

such discretion. (Appendix A, p. A-3.)

JURISDICTION

The District Court’s jurisdiction was invoked on the

basis of 28 U.S.C. Section 1331 (federal question jurisdic-

tion). The Ninth Cireuit’s jurisdiction over the appeal of

proposed policy statement from the FAA on the subject. A New York

Times story, on November 16, 1986, discussed the issues of federal-

ism which are implicated, In the month of April, 1987 alone, at least 8

articles have appeared which discuss the problem of airport capacity:

New York Times, April 12, 19, 26; Aviation Week and Space Technol-

ogy, April 20; Congressional Quarterly, April 18; Washington Post,

April 5; Los Angeles Times, April 2; Bureau of National Affairs,

Daily Report for Executives, April 24, 1987.

4

the District Court’s Order was premised upon 28 U.S.C.

Section 1292(a) (appeal of an order granting and refus-

ing to vacate a preliminary injunction). The jurisdiction

of this Court is invoked under 28 U.S.C. Seetion 1254(1).

Review by certiorari is sought on the grounds that the

Ninth Cireuit has decided a substantial question arising

under the United States Constitution and federal statutes

involving aviation contrary to the decisions of this Court

upholding the power of local municipalities to adopt

environmental and land use regulations which do not

impose burdens on interstate commerce which are clearly

excessive when considered in view of the local benefits.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Constitution of the United States Article I, Section 8,

Clause 3:

“The Congress shall have the power to regulate

Commerce with foreign nations, and among the sev-

eral States, and with the Indian Tribes;”’

Constitution of the United States Article VI, Para-

graph 2:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof...

shall be the Supreme Law of the Land; and the

Judges in every State shall be bound thereby, and

any Thing in the Constitution or Laws of any State to

the contrary notwithstanding.”

STATEMENT OF THE CASE

In 1981, in an effort to deal with the problems of noise

associated with increasing numbers of operations at the

Airport by air carrier jets, the City Council adopted an

i

5)

ordinance which established, inter alia, a limit of 15 air

carrier jet flights per day and gave a priority to less noisy

planes. (E.R. 1152-63.)* In 1983, the Airport was being

served by three air carriers. (E.R. 121, Paragraph 6;

1155.) When the City received requests to operate more

than 15 flights, the City, pursuant to the 1981 ordinance,

allocated the 15 allowable flights among five carriers. Two

of the incumbent carriers were informed that they would

have to reduce their operations.

On June 23, 1983, Alaska Airlines (‘Alaska’), one of

the airlines which was to lose a flight, brought suit to

enjoin the City from reducing its utilization of the Air-

port. Alaska claimed that the 1981 ordinance violated the

Commerce, Due Process, Equal Protection, and

Supremacy Clauses of the United States Constitution,

and was in conflict with agreements between the City and

the Federal Aviation Administration (“FAA”). (E.R.

1143.) Since Alaska filed its original complaint, numerous

other commercial air carriers have joined the suit as

plaintiffs-in-intervention, making substantially similar

claims for relief. Some of the carriers have added causes

of action for violations of the Federal Aviation and Civil

Rights Acts. The plaintiffs seek declaratory and injunc-

tive relief, as well as attorneys’ fees and monetary

damages.

In Deeember 1983, after new flights had been awarded

by the City to the earriers which had qualified under the

City’s then-operative ordinance, District Judge Laughlin

Waters enjoined the City from reducing any of the flights

previously alloeated (or expected to be allocated) to the

carriers already using the Airport. This resulted in a

minimum of 18 daily flights (each flight being one takeoff

*References are to the Excerpts of Record filed by the Petitioners

in the Ninth Cireuit.

6

and one landing) at a time when the City was seeking to

reduce the impacts of aircraft noise. (E.R. 12.) Following

entry of that order, the litigation was held in abeyance

while the City conducted an extensive study under Part

150 of the Federal Aviation Regulations, 14 CFR Sec-

tion 150 et seg. A City-appointed task foree (the “Task

Force’’), composed of representatives of all groups inter-

ested in the Airport (including the airlines), was charged

with gathering information and submitting reeommenda-

tions to the City Council on methods to achieve compat-

ibility between the Airport and its surrounding

community. (E.R. 516; 970.)”

On July 22, 1986, following receipt of a host of recom-

mendations from the Part 150 Task Force concerning

methods to reduce the impacts of aircraft noise while

permitting additional service by air earriers, the City

Council adopted a comprehensive Noise Compatibility

Program and an ordinance to implement it. (E.R. 281-

303; 305 et seq.) The central elements of the ordinance are

the determinations (1) that no homes, schools, or hospi-

tals should be exposed to annual noise greater than 65

decibels on the Community Noise Equivalent Level

e

"In May of 1986, the City began to receive formal claims from

residents of the community surrounding the Airport that noise and

other pollution from aircraft operations constituted a taking of their

property without just compensation. Damages under California’s

novel “continuing nuisance” law were also sought. See Baker v.

Burbank-Glendale-Pasadena Airport Authority, 39 Cal.3d 862, 872, 218

Cal.Rptr. 293, 705 P.2d 866 (1985), cert. denied, U.S. , 106

S.Ct. 1200, 89 L.Ed.2d 314 (1986) and Greater Westchester Homeown-

ers Ass’n v. City of Los Angeles, 26 Cal.3d 86, 97, 160 Cal.Rptr. 733,

603 P.2d 1329 (1970), cert. denied, 449 U.S. 820, 101 S.Ct. 77, 66

L.Ed.2d 22 (1980). Damages in excess of $300 million have now been

demanded on behalf of more than 1,280 local residents. (E.R. 144.)

ia i RR Sh —

7

(“CNEL”) seale® and (2) that the parts of the eommu-

nity which have so far avoided the adverse impacts of jet

noise should be protected from increases in the noise they

presently receive (primarily from the considerable num-

ber of general aviation flights). (E.R. 286; 273, Paragraph

3; 277-8, Paragraphs 9-10.) ‘

In order to achieve the goal of having no incompatible

property exposed to more than 65 CNEL, cumulative

noise in the residential areas to the northwest and south-

east of the Airport must be reduced (homes in these areas

presently receive noise above 65 CNEL). (E.R. 274,

Paragraph 4.) To reach the established noise limitation

without necessarily reducing aviation activity at the Air-

port, the ordinance, inter alia, established maximum “‘Sin-

gle Event Noise Exposure Levels” (“SENEL’s’’)

(limitations on the amount of noise that ean be made by

aircraft during each takeoff and landing) and a collection

of restrictions on general aviation, charter, and industrial

‘CNEL is a weighted average of noise occurring during a 24-hour

day. The methodology takes into consideration the peak noise levels

produced by individual aircraft, the number of flights, the amount of

time during which aircraft noise is intrusive, and the time of day or

night during which the intrusions oceur. The State of California and

other regulatory agencies (including the federal government) have

established 65 decibels of noise on the CNEL seale as the maximum

level of cumulative noise generally regarded as reasonable in the

residential community around an airport. (E.R. 330, Paragraph 7.)

In adopting the ordinance, the City Council chose not to adept one

possible methodology which would have allowed more air carrier

flights — the shifting of business jet operations to an alternate

runway so that they would fly over a part of the community which is

not presently exposed to jet noise. The reductions in noise in the part

of the community which had received business jet noise could then

have been the predicate for an increase in air carrier flights over that

area without an overall increase in the level of cumulative noise

received by that segment of the City.

8

operations.” Contrary to the desire of the air carriers, the

ordinance required that cumulative noise be reduced to

the 65 CNEL goal before new air carrier flights would be

permitted.

Following adoption of its new program, several air

carriers moved to modify the 1983 injunction to require

the City to permit an immediate increase in flights. (E.R.

82, 89, 96, 103, 110.) On September 8, 1986, the District

Court heard arguments on the motions. On October 17,

1986, the Court ordered the City to permit an increase in

air carrier flights to 26 daily departures and 26 daily

arrivals. (Appendix B.) On November 7, 1986, the City

timely filed a Notice of Appeal (E.R. 1) and a motion for

a stay of the preliminary injunction (E.R. 1199-1206). On

December 1, 1986, the District Court denied the City’s

motion to stay, after which a motion was made to the

Cireuit Court for a stay pending appeal. (E.R. 1193-94.)

On January 14, 1987, the Cireuit granted a stay of the

District Court’s Order pending appeal.

On April 14, 1987, the Cireuit filed its Memorandum

affirming the District Court. (Appendix A.) It also en-

tered an Order dissolving the stay pending appeal. On

April 27, 1987, the Court denied the City’s motion for a

further stay pending review by certiorari. On April 29,

1987, the petitioners sought a stay of the District Court

injunction pending the timely filing and action on a

petition for certiorari. Justice O’Connor denied that Mo-

tion on May 4, 1987.

“The studies conducted by the Task Foree (summarized at E.R.

332-37) demonstrated that if the SENEL limits and other noise

mitigation measures were implemented, cumulative noise levels

would be sufficiently reduced so that air carrier flights could be

increased without resulting in community noise exceeding the 65

CNEL limit. (E.R. 275, Paragraph 6.)

9

REASONS FOR GRANTING THE WRIT

At issue here is the tension between the federal interest

in interstate commerce and the local interest in maintain-

ing a chosen level of environmental quality. The last time

such an issue was presented in the aviation area was in

City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.

624, 638, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). There, the

Supreme Court decided, by a five to four decision au-

thored by Justice Douglas, that a city which did not own

an airport within its jurisdiction was preempted from

regulating noise from aircraft using it. The Court ac-

knowledged that the power of municipal proprietors to

adopt aircraft noise regulations was not preempted, but

left for another day the issue of the scope of that power.

Justice Rehnquist wrote for a four-Justice minority which

accepted the position of the United States and found no

basis for concluding that Congress intended to oust any

municipality (proprietor or not) within which an airport

was located from exercising its traditional powers to

preserve environmental quality. 411 U.S. at 640-54.

In the years which have followed the Burbank decision,

the Circuit Courts have occasionally addressed the ques-

tion of the scope of proprietor power and the standards

under which the federal courts will review its exercise. In

no case has there been a determination that the federal

eourts may affirmatively compel a municipal proprietor to

raise a reasonably established ceiling on maximum per-

missible noise in order to accommodate the interests of

interstate commerce.

While the Cireuits have grappled with the extent of

proprietor power in light of the federal preemption of

airspace management, the Supreme Court has recently

tightened the burden of demonstrating that a local regu-

lation in an area Congress has refused to preempt entirely

is invalid under the Supremacy or Commerce Clause. The

10

tenor of the current decisions of the Court reflect a

renewed sensitivity to the propriety of locally elected

officials taking. steps to protect local environmental con-

cerns notwithstanding the fact that federal interests may

be affected. As recently as March 24, 1987, the Supreme

Court upheld the power of the California Coastal Commis-

sion to regulate mining in a national forest despite a

claim that several federal acts regarding the use of

federal land preempted the state’s power. California

Coastal Commission v. Granite Rock Company, U.S.

, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987). See also

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 105,

78 L.Ed. 443 (1984); CTS Corp. v. Dynamics Corporation

of America, U.S. ——, 107 S.Ct. 1637 (1987);

Wardair Canada, Inc. v. Florida Department of Revenue,

— U.S. —_, 106 S.Ct. 2369, 91 L.Ed.2d 1 (1986).

Notwithstanding the narrowness -of the grounds on

which an order such as that in issue might properly be

based, the District Court’s conclusion to inerease the

environmental burdens of the Airport is supported only

by a vague conclusion that additional flights are “justi-

fied”. (Appendix B, p. B-3.) Whatever may be the under-

lying rationale, however, the Order, and the Circuit’s

affirmance, necessarily runs counter to deeply ingrained

principles of federalism. First, the order is manifestly

inconsistent, as a matter of law, with decisions of the

Cireuits and of this Court regarding matters of local

concern into which Congress has refused to intervene.”

*In the words of the Federal Aviation Administration (the

“FAA”), the City retains the power to limit the environmental

impacts of aircraft operations “in response to the locally determined

desire for quiet and the locally determined need for the benefits of air

commerce”. (34 Fed.Reg. 18355 November 18, 1969.) The conclusion

that there is no preemption of proprietor power to adopt non-

discriminatory noise regulations has been confirmed by the Second

Cireuit (see British Airways Board v. Port Authority of New York, 558

i a

ve iba ache. a stR ni en i AE ich i hated al ns eet oli

3 > arch

11

Second, even if it is assumed that the District. Court

did not adopt the wrong legal principles, it at least erred

in applying them to the virtually undisputed facts: There

- simply was no evidence upon which it might have been

eoncluded that the City’s refusal to permit increases in

the number of jet operations until its unchallenged noise

goals have been achieved unduly burdened interstate

commerce. Under the teachings of Pike v. Bruce Church,

Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174

(1970) and Brotherhood of Locomotive Firemen and En-

gineermen v. Chicago, Rock Island & Pacific Railroad, 393

U.S. 129, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968)), the

District Court was obliged to find that the burdens of the

ordinance on interstate commerce were “clearly exces-

sive” in light of the local benefits. It did not, as it could

not.

Finally, even assuming that the District Court could

have ordered new entry into the Airport because of some

compulsion of federal law, the Court at least erred in

failing to draw an injunction which would accomplish this

objective without compromising the legitimate environ-

mental concerns of the City. Rather than compelling

increases in flights, with the environmental burdens which

attend them, the Court should have ordered the City to

develop a mechanism to permit entry without increasing

flights (for example, by re-allocating the existing flight

capacity of the Airport).

This approach would have served the federal interest:

(1) without depriving the City, its residents, and their

elected officials of their constitutional right to be free

F.2d 75, 84-85 (2d Cir. 1977)), by the Ninth Cireuit (see Santa

Momica Airport Ass’n v. City of Santa Monica, 481 F.Supp. 927

(C.D.Cal. 1979), aff'd 659 F.2d 100, 104-05 (9th Cir. 1981)), and by

this Court (see City of Burbank v. Lockheed Air Terminal Inc., 411

U.S. 624, 635, n. 14, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973)).

12

from unnecessary federal interference in matters of pecu-

liar and wholly legitimate local concern; (2) without

subjecting thousands of residents of the City to increases

in cumulative noise and the number of intrusions by the

sorts of aircraft which are most disruptive to home and

school activity; and (3) without exposing the City —

which has already been named as a defendant in more

than 1,280 inverse condemnation suits as a result of

present noise levels — to new vistas of financial exposure.

\ In sum, the City’s petition for certiorari is amply

pported by the trend away from federal intrusions into

matters of appropriate local cognizance; by the broad

significance of the issues of airport noise, access, and

capacity which this case raises; by the departure from the

teachings of this Court which the decisions below rep-

resent; and by the impact that comparable decisions could

have on the legitimate rights of municipalities to act for

themselves in unpreempted areas of environmental

quality.

THE NINTH CIRCUIT’S ASSUMPTION THAT THE

DISTRICT COURT HAD DISCRETION TO DE-

TERMINE THE MINIMUM NUMBER OF FLIGHTS

AT A MUNICIPAL AIRPORT IS UNPRECE-—

DENTED AND UNSUPPORTABLE

A. The City Has Clear Authority to Enact Noise Ordi-

nances, and Such Ordinances Are Entitled to Sub-

stantial Deference.

Proprietor power over noise has been explicitly recog-

nized by Congress, by the Department of Transportation,

and by the FAA. In 1968, in connection with the amend-

ments to the Federal Aviation Act giving the FAA author-

ity to promulgate source noise limits, the Senate

Commerce Committee stated that it did not intend “to

effect any change in the existing apportionment of powers

ate ener ener nee

13

between the Federal and State and local governments.”

Sen.Rep.No. 1353, 90th Cong. 2d Sess. (1968) (reprinted

in (1968) U.S. Code Cong. &. Ad. News 2963). The Com-

mittee then quoted with approval a June 22, 1968 letter,

prepared by the Secretary of Transportation, which con-

firmed that the federal government did not intend to

establish a federal system which would require airports to

accept additional noise burdens and, for that purpose, to

purchase additional noise easements. /d.; see Burbank, 411

U.S. at 635 n. 14.

Pursnant to the authority given it in 1968, the FAA

adopted Part 36 of the Federal Aviation Regulations. 14

CFR Part 36, 34 Fed.Reg. 18355 et seg. (November 18,

1969). Part 36 established standards for the design and

manufacture of aircraft and aircraft engines. In the Pre-

amble to Part 36, the FAA clearly stated that federal

regulation of engine noise did not undereut the role and

responsibility of airport proprietors in the process of

controlling the noise received by local residents. 34 Fed.

Reg. 18355.

The federal courts have consistently confirmed the

right of airport proprietors to regulate noise. “[I]f any

coherent Federal policy can be discerned, it is that air-

craft noise abatement with respect to particular airports

. is primarily up to the local proprietor, not the FAA.”

DiPerri v. Federal Aviation Administration, 671 F.2d 54,

57 (ist Cir. 1982). An apt summary of the law is con-

tained in Santa Monica Airport Ass’n, 659 F.2d at 104-05:

ee A ee ON

nt oe a nee

“The legislative history shows that Congress in-

tended that municipal proprietors enact reasonable

regulations to establish acceptable noise levels for

airfields and their environs. See, e.g., British Airways

Bd. v. Port Authority of New York, 558 F.2d 75, 84-85

(2d Cir. 1977) (and authorities cited therein) ....

Congress intended to allow a municipality flexibility

i

ee

14

in fashioning its noise regulations. See Hayward,

supra, 418 F.Supp. at 425, n.13.”

See also Global International Airways Corp. v. Port Author-

ity of New York and New Jersey, 727 F.2d 246, 251-52 (2d

Cir. 1984), and Air Transport Association v. Crotti, 389

F.Supp. 58 (N.D.Cal. 1975).

The courts have also confirmed the inappropriateness

of federal intervention in the discretionary decisions

made by a municipal proprietor, noting that the principles

of comity and federalism “militate against our invalidat-

ing a state or local regulation unless it is written in

unlawful terms, or because, on its face, it is preempted.”

Santa Monica Airport Ass’n, 659 F.2d at 104-05."° Accord:

Western International Hotels v. Tahoe Regional Planning

Agency, 387 F.Supp. 429, 437-38 (D.Nev. 1975), aff’d in

part, rev'd in part, and vacated in part, 566 F.2d 1353 (9th

Cir. 1977) aff'd in part, rev'd in part, and vacated in part,

440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979)

(proposition cited not affected); Aircraft Owners and

Pilots’ Ass’n v. Port Authority of New York, 305 F.Supp. 93,

103 (E.D.N.Y. 1969).

See British Airways Board v. Port Authority of New York and New

Jersey, 558 F.2d 75, 83 (2d Cir. 1977); Brotherhood of Locomotive

Firemen & Engineermen v. Chicago, Rock Island & Pacific Railroad

Co., 393 U.S. 129, 138-39, 89 S.Ct. 323, 21 L.Ed.2d 289 (1968). It has

also been said that a party challenging the constitutionality of a local

ordinance “must negative every conceivable basis which might sup-

port it.”” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365,

93 S.Ct. 1001, 35 L.Ed. 200 (1973), citing Madden v. Kentucky, 309

U.S. 83, 88, 60 S.Ct. 406, 408, 84 L.Ed. 590 (1940). See also Flemming

v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960);

Goldblatt v. Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 8 L.Ed.2d 130

(1962); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 469, 101

S.Ct. 715, 726, 66 L.Ed.2d 659 (1981); Kassel v. Consolidated Freight-

ways Corp., 450 U.S. 662, 680-81, 101 S.Ct. 1309, 1321, 67 L.Ed.2d

580 (1981) (Brennan, J., concurring).

ee NS eee

EE

15

B. The Federal Interest In Interstate Commerce Does

Not Compel Airports or Their Neighbors to Accept

Environmental Burdens Fairly Determined To Be

Excessive.

The carriers also argued in the District Court that the

general federal interest in aviation competition may com-

pel the City to accept increases in flights. They relied on a

collection of cases (discussed immediately below) con-

cerned only with discrimination in the allocation of ex-

isting capacity or with attacks on patently irrational

restrictions. The expansion of these cases into the unpree-

edented mandatory injunction in issue was the District

Court’s most manifest error. |

In the first instance, the cases relied upon by the

carriers pertain solely to restrictions that have been

shown either to have no rational basis or to have an

impermissible discriminatory effect. In the Concorde

cases,’ the courts concluded that while New York could

set a limit on the maximum noise levels of individual

flights, it could not exclude the supersonic transport

without evidence that the plane could not meet the limits.

The courts in the Santa Monica cases,” which upheld a

collection of proprietor regulations, struck down a blan-

ket exclusion of jets only after the plaintiffs presented

substantial evidence that some of the excluded jets were

quieter than some of the piston planes which were permit-

ted to operate at the airport.

"British Airways Board v. Port Authority of New York, 558 F.2d 75

(2d Cir. 1977); British Airways Board v. Port Authority of New York

and New Jersey, 437 F.Supp. 804 (S.D.N.Y. 1977); British Airways

Board v. Port Authority of New York and New Jersey, 564 F.2d 1002

(2d Cir. 1977).

Santa Monica Airport Ass’n v. City of Santa Monica, 481 F.Supp.

927 (C.D.Cal. 1979) aff'd 659 F.2d 100 (9th Cir. 1981).

16

The curfew cases relied upon by the air carriers’ are no

more apposite. These cases uphold curfews where they are

shown to have a rational basis and strike them down

where they do not. United States v. Cownty of Westchester,

571 F.Supp. 786 (S.D.N.Y. 1983), is illustrative. In West-

chester, the County decided, without any evidence that the

few existing night flights constituted a noise problem, to

close the airport at night. The ordinance was, of course,

overturned.

Here, the City has not decided to eliminate any flights,

let alone decided to close the Airport (at night or other-

wise). It has decided to allow more flights (which will

bring inereases in the number and duration of intrusive

noise events), but not until its cumulative noise goal has

been achieved.”* Accordingly, the City Council’s decision

as to the acceptable level of noise in the community was

within its diseretion. See also City of San Anion v. CAB,

374 F.2d 326, 329 (D.C. Cir. 1967); City of Houston v.

FAA, 679 F.2d 1184, 1193 (5th Cir. 1982); Village of Belle

"National Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.

1976); United States v. County of Westchester, 571 F.Supp. 786

(S.D.N.Y. 1983); United States v. The State of New York, 552 F.Supp.

255 (N.D.N.Y. 1982), 708 F.2d 92 (2d Cir. 1983), cert. denied, 466

U.S. 936, 104 S.Ct. 1907, 80 L.Ed.2d 456 (1984).

'*Not only have the carriers failed to point out a single ease which

supports their claim that federal law can compel an increase in noise,

they have ignored the admissions of the FAA that no such authority

exists. The FAA has recently published for consideration by the

aviation community a proposed policy which would give the FAA

discretion to inelude, as an additional condition in grant agreements

with airports, an undertaking by the airport to construct such

facilities as are necessary to allow the runways to be used to their

maximum capacity. Surely if the FAA or the courts had the power to

accomplish this under existing law, the FAA would need no change of

policy in order to justify obtaining such undertakings by contract.

(E.R. 144.)

S30) _ pete es Cee 4 Seka.»

17

Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct 1536, 39 L.Ed.2d

797 (1974); Brown v. ITT Rayomer Inc., 497 F.2d 234, 236

(5th Cir. 1974). The District Court’s apparent conclusion

that the national interest outweighed the legitimate envi-

ronmental concerns of the City was an unprecedented

effort to alter the balance of liability created by this Court

in Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7

L.Ed. 585 (1982) and its progeny. It was manifestly

erroneous.

C. The City’s Refusal To Permit Additional Flights

Until Cumulative Noise Has Been Reduced To

Acceptable Levels Was Supported by Substantial

Evidence.

Since the power of the City to enact regulations “to

establish acceptable noise levels for airfields and their

environs” is clear (Santa Monica Airport Ass’n., 659 F.2d

at 104), the carriers could properly obtain an injunction

overriding such regulations only upon clear proof that the

City’s determination to achieve its noise reduction goal

before allowing increases in flights was irrational, unduly

discriminatory, or contrary to some specific federal stat-

ute. Jd. The airlines failed to make such a showing.

Preliminarily, they made no effort to show that the City’s

adoption of 65 CNEL as the reasonable noise reduction goal

was irrational. For good reason — both the State of Cali-

fornia and the federal government have recognized that

this is a reasonable standard. (E.R. 330, Paragraph 7.)

_ Nor did the earriers dispute the testimony that noise in

residential communities surrounding the Airport pres-

ently exceeds 65 dB on the Community Noise Equivalent

Level Seale. (E.R. 368, Paragraph 11.)

Given their inability to challenge either the reason-

ableness of the City’s noise reduction goal or the fact that

the goal is presently being exceeded, the carriers argued

18

(1) that the City unreasonably refused to permit flight

increases before.achievement of the City’s noise goal, (2)

that the City’s noise goal can, notwithstanding eight more

takeoffs and eight more landings, be achieved if the City

will only take action purportedly within its power to shift

business jet flights from one runway to another, (3) that

the City is obliged to allocate more of the Airport’s noise

capacity to the air carriers, or (4) that the new flights

would pose such a minimal increase in the burdens of jet

noise as to be justified in light of the federal interest in

interstate commerce.’® None of these professed bases for

compelling an increase in flights withstands scrutiny.

1. It Was Clearly Reasonable To Delay Flight In-

creases Until Achievement Of The City’s Noise

Goals.

The only basis upon which the air carriers challenge the

City’s patently logical decision to achieve its noise reduc-

tion goal before allowing increases in flights was the

inaccurate (and, in any event, irrelevant) contention that

the City’s Part 150 Task Force reached a different-conclu-

sion. The Task Force proposal for increases in air carrier

flights was premised upon accomplishment of the overrid-

ing objective of complying with the 65 CNEL limitation.

(E.R. 305, 306).

But even if the Task Force had concluded that immedi-

ate increases in flights would produce acceptable in-

‘The carriers also sought to convince the District Court that the

City’s motivations were illegitimate. The City’s motivations, however,

are irrelevant. California v. LaRue, 409 U.S. 109, 126 n.3, 93 S.Ct.

390, 34 L.Ed.2d 342 (1972) (Marshall, J. dissenting); United States v.

O’Brien, 391 U.S. 367, 384, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

i

19

creases in noise levels, that would not render the City

Council’s determination irrational, The City’s power ex-

tends beyond merely avoiding the intolerable. It may also

avoid the merely burdensome. While it is obviously em-

powered to assure that neighborhoods are merely livable,

its discretion is also broad enough “to lay out zones where

... the blessings of quiet seclusion and clean air make the

area a sanctuary for people.” Village of Belle Terre v.

Boraas, 416 U.S. at 1, 9. Accord, Berman v. Parker, 348

U.S. 26, 32-33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954) (“The

concept of the public welfare is broad and inelusive....

The values it represents are spiritual as well as physical,

aesthetic as well as monetary”).

Congress has expressly refused to preempt these tradi-

tional powers of municipal proprietors. Sen.Rep.No. 1353,

90th Cong. 2d Sess. (1968) (reprinted in (1968) U.S.

Code Cong. & Ad. News 2963); Santa Monica Airport

Ass’n, 659 F.2d at 103 fn. 5, 104-05, National Aviation v.

City of Hayward, 418 F.Supp. 417, 424-25 (N.D. Cal.

1976); Aircraft Owners and Pilots’ Ass’n v. Port Authority

of New York, 305 F.Supp. at 106. It follows that the

District Court could not appropriately substitute its judg-

ment as to the publie good for that of the elected City

Council. See also Meachum v. Fano, 427 U.S. 215, 229, 96

S.Ct. 2532, 49 L.Ed.2d 451 (1976) (district courts are not

empowered to “sit to supervise” important state institu-

tions); Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978)

(the court is not given the “general assignment to go

about doing good.”’).

20

2. The City’s Refusal To Shift Noise From One Part

Of The Community To Another In Order To

Achieve One Noise Goal At The Expense Of

Another Was Clearly Sensible.

The carriers also claimed in the lower court that the

City could, consistent with its noise goals, permit in-

creases in air carrier flights merely by calling for a shift

in business jet flights from the runway used by the air

carriers to a runway now used almost exclusively by

general aviation propeller aircraft. Their effort to chal-

lenge what is a patently reasonable decision to avoid jet

flights over a portion of the community which has thus far

escaped that burden relies almost exclusively upon the

fact that the Task Force recommended the idea. Evidence

that an appointed study group supported this proposal,

however, does not support the claim that the City was

irrational in rejecting it on environmental and liability

grounds.

The part of the Long Beach community located under

flights taking off from Runway 30 (the runway now used

by both air carrier and business jets) is the most ad-

versely impacted part of the City."© (E.R. 340-42,

Paragraphs 23-25; 277, Paragraph 9.) The part of the

community located under the takeoff path of flights from

Runway 25L is not presently affected by significant noise

from jet flights, although it receives abundant noise from

piston aircraft. Indeed, Runway 25L is the most utilized

runway at the Airport, receiving about 41 percent of the

400,000 annual takeoffs and landings. (E.R, 93.) Unlike

the area to the north-west of the Airport (under the flight

path of Runway 30), the community located adjacent to

Runway 30 is the runway with a compass heading of approxi-

mately 300 degrees (south-east to north-west). Runway 25L is one of

two runways with a compass heading of approximately 250 degrees

(east to west).

21

Runway 25L is not subject to cumulative noise in excess

of 65 CNEL. (E.R. 277, Paragraph 9; 556.)

Thus, if business jets were diverted to Runway 25L, the

number of air carrier flights on Runway 30 could be

increased without an increase in cumulative noise to the

north-west. (E.R. 340-42, Paragraphs 23-25.) Further,

while the shifting of business jets to Runway 25L would

inerease the number of noise intrusions and the amount of

time during which noise interferes with community activ-

ity to the west of the Airport, cumulative noise would not

reach 65 CNEL. (Jd.)

Possessed of this information, the Task Force and the

City Council came to different conclusions on whether to

degrade the quality of the environment to the west of the

Airport in order to permit an inerease in air carrier flights

over the community to the north-west. In the District

Court, the carriers claimed that the City simply “ignored”

the Task Force proposal. To the contrary, the City consid-

ered the alternatives, both of which are reasonable, and

decided to maintain the quality of the environment to the

west and, at the same time, avoid increasing the City’s

exposure to inverse condemnation and nuisance suits

from residents affected by takeoffs on Runway 25L. (E.R.

286; 273.)

The evidence in the record is more than adequate to

support the City’s decision. Initially, an examination of

the pattern and location of noise damage suits (E.R. 391)

leads to several pertinent conelusions:

First, noise suits are filed, almost exclusively, by the

residents who are exposed to the noise of jets taking off

and landing. Second, these residents are sufficiently dis-

turbed by the noise that they have initiated suit even

though they are subjected to a comparatively small per-

22

centage of the total operations at the Airport. Third, the

majority of the suits (whether precipitated by takeoff or

landing noise) are filed by people who receive less — in a

great many cases, significantly less — than 65 dB CNEL.

Fourth, in areas of the community exposed to many times

the number of flights — but flights by propeller aircraft

used by general aviation — there are very few suits. (Jd.)

In addition to the conclusions drawn from a general

examination of the pattern of noise suits, acoustic analy-

sis showed that the proposal to shift business jets to

Runway 25L would have increased cumulative noise sig-

nificantly in residential areas located to the west of the

Airport: CNEL values in that community would have been

inereased by 2 to 3 dB (a three decibel increase represent-

ing a@ 100 percent increase in noise). (E.R. 340-42,

Paragraphs 23-25.) At the school nearest the west end of

Runway 25L, there would have been a significant increase

in the time during which aircraft noise interferes with

teaching. (E.R. 367-68, Paragraph 10.) For the rest of the

community, noise from aircraft operations would have

intruded above ambient levels on a more substantial basis

and for longer periods of time. (E.R. 848-49.) ""

Notwithstanding the foregoing, the carriers protested

to Judge Waters that the shift of business jets must be

undertaken beeause no new area would be subject to noise

above the 65 CNEL cumulative noise goal. In taking this

position, the carriers ignored the fact that 65 CNEL is

not a minimum which should be attained in all areas, but

''The fact that cumulative noise would not exceed 65 CNEL is a

false issue. At that level, there remains a significant percentage of the

community which is highly annoyed by noise. The California Noise

Standards thus explicitly recognize that airports may properly regu-

late noise below 65 CNEL. 21 Cal. Admin. Code Section 5003.

23

a maximum to which excessive noise must be reduced.

(E.R. 329-30, Paragraph 6.)'*

In light of these considerations, the City decided not to

compromise its noise goals and open itself to new vistas

of potential liability by exposing a portion of the commu-

nity which has not previously been burdened by jet flights

to the equivalent of about half the current air carrier jet

departures. It also properly elected to preserve the qual-

ity of life in those communities.

3. The City’s Refusal to Discriminate Against Other

Users of the Airport In Order to Allocate Addi-

tional Flights To the Air Carriers Had Substantial

Justification.

The carriers contended below that the City could have

achieved its noise goals without denying new air carrier

flights by imposing greater restrictions on users of the

Airport other than air carriers. They claimed that the

City’s refusal to do so was irrational, arbitrary, or invidi-

ously discriminatory. This contention reflects a funda-

mental misconception of the impacts of air carrier jet

flights on noise levels and noise suits and ignores the fact

‘ that the majority of the noise capacity of the airport has

already been allocated to the air carriers. The following

points merit special note:

'“The contention that new air carrier flights can be allowed because

the City ean dictate which runway the business jets shall use is also

based upon a false assumption that the City has control of runway

utilization. To the contrary, “preferential runway use programs” are

subject to the FAA’s responsibility for safety. They cannot be

implemented unilaterally. (E.R. 844.) Operating procedures are also

subject to rigorous FAA review. 49 U.S.C. Section 1348(c); FAA

Advisory Cireular 91-53 (E.R. 628-34); 14 C.F.R. Parts 91.3(a),

91.87(f) (1), 91,89(h).

24

a. Per occurrence, the air carriers’ flights are the

noisiest operations. Their three percent of total opera-

tions cause 60 percent of cumulative noise in the part of

the community most exposed. (E.R. 335, Paragraph 13.)

b. The lawsuits filed against the Airport are almost

exclusively the result of jet noise. (E.R. 193; 387-91.)

e. General aviation flights, which have never been a

controlling factor in the noise received in the most highly

affected areas (E.R. 335, Paragraph 13), have reduced

from 633,000 in 1980 to about 400,000 in 1985. (E.R. 513.)

Thus, substantial reductions in non-air carrier flights have

already been accomplished. General aviation is also a

significant economic contributor to the City.’

d. Flights by charter and industrial operators are

already minimal: in the first quarter of 1986, for example,

there were 5 charter flights in total (.06 per day) and an

average of less than 2 industrial flights per day. (E.R.

950-51.) The economic benefits of allowing a continuation

of this modest number of flights dwarfs the entire eco-

nomic impact of all air carrier flights.””

In short, the City has not unreasonably restricted air

earriers for the benefit of other users — it has signifi-

'SGeneral aviation businesses at the Airport have a $63 million

impact on the local economy not counting taxes, business purchasing,

or indirect employment. (E.R. 124, Paragraph 4.)

The flights are operated by MeDonald-Douglas Corporation

(“Douglas”), which manufactures aircraft at facilities adjacent to

the Airport. Douglas has grown to become the largest employer in the

City, providing over 16,800 jobs; it contributes nearly $400 million

directly to the Long Beach economy and contributes over $1.8 billion

to the regional economy just from its payroll. (E.R. 124-5, Paragraph

15.) During 1985, Douglas had total sales of commercial aircraft

from its Long Beach facility of $2.8 billion (it delivered 71 aircraft).

(Id.)

25

cantly discriminated in favor of commercial aviation over

other aviation interests.”

D. Even If Some Relief Were Appropriate, The Dis-

trict Court’s Order Was Overbroad.

Under the standards applicable to injunctive relief, the

District Court was obliged, even if it properly concluded

that some relief was appropriate, to enter the narrowest

effective order. Jett v. Castaneda, 578 F.2d at 845 (9th Cir.

1978); Lopez v. Heckler, 725 F.2d 1489, 1509 (9th Cir.

1984); Toussaint v. McCarthy, 801\F.2d 1080, 1087 (9th

Cir. 1986) (injunctive relief “must be narrowly tailored

...and must not intrude unneg¢éssarily on state fune-

tions’); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d

804 (9th Cir.), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11

L.Ed.2d 55 (1963); Warner Brothers Pictures v. Gittone,

110 F.2d 292 (3d Cir. 1940) (where it was concluded that

a preliminary injunction which changed the status quo

should not be granted, even if irreparable loss would result

without the injunction). See also Washington Capitols Bas-

ketball Club, Inc. v. Barry, 419 F.2d 472 (9th Cir. 1969)

and Capobianco v. First National Bank of Pelmerton, 372

F.Supp. 416, 421 (M.D.Pa. 1974).

"The carriers also argued in the District Court that delay in

accommodating new entry required the City to permit new flights

immediately (irrespective of the noise consequences). Delay alone,

however, could not support the Order in issue because the delay in

allowing new flights was occasioned by the fact that noise has

remained excessive. This case is thus entirely different from British

Airways Board v. Port Authority of New York, 558 F.2d 75 (2d Cir.

1977), on remand, 437 F.Supp. 804, aff'd as modified, 564 F.2d 1002

(2d Cir. 1977), in which the District Court expressly found that the

Port Authority had “no intention” of adopting a reasonable rule to

take the place of a flat exclusion of the Concorde. 437 F.Supp. at 818.

Here, the City has already adopted rules to accommodate new entry.

26

Thus, even if the carriers made a colorable showing in

favor of some relief, the District Court was obliged to

fashion the narrowest reasonable remedy. If it was the

barrier to additional competition among air carriers

which Judge Waters found wrongful, the Court could

have asked the City to develop a solution or, at most,

could have ordered the City to allocate the existing 18

flights among all of the air carriers wishing to serve the

Airport. The order increasing flights in the face of pres-

ently excessive noise levels went far beyond the reasona-

ble sweep of the court’s discretion to fashion an

appropriate remedy.

CONCLUSION

For the foregoing reasons the City’s Petition for Certi-

orari should be granted.

Respectfully submitted,

LEE L. BLACKMAN

Counsel of Record

CHARLES G. BAKALY III

KADISON, PFAELZER, WOODARD,

QUINN & Ross!

and

JOHN R. CALHOUN, CITY ATTORNEY

ROGER P. FREEMAN, DEPUTY

Attorneys for Petitioners

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APPENDIX A

Opinion of Ninth Circuit Court of Appeals Below.

United States Court of Appeals for the Ninth Circuit.

Alaska Airlines, Inc., Plaintiff-Appellee v. City of Long

Beach, Defendant-Appellant; Long Beach Unified School

District, Defendant-Intervenor, v. Pacifie Southwest Air-

lines, Ine., et al., Plaintiff-Intervenor-Appellee; Alaska

Airlines, Inc., Plaintiff-Appellee and Pacific Southwest

Airlines, et al., Plaintiffs-Intervenors-Appellees v. City of

Long Beach, et al., Defendants-Appellants.

Filed: April 14, 1987.

Appeal from: United States District Court, Central

District of California, (DC No. CV 83-4065 LEW(Bx) ).

MEMORANDUM*

BEFORE: WRIGHT and REINHARDT, Circuit

Judges, and MUECKE**, District Judge.

In 1983 the district court issued a preliminary injunce-

tion requiring the City of Long Beach, operator of the

Long Beach airport, to permit a minimum of eighteen

commercial flights per day in and out of the airport. Long

Beach appealed from that order. At Long Beach’s re-

quest, the appeal was recently dismissed, without

prejudice, subject to reinstatement by this panel. in 1986,

relying on a newly enacted noise abatement ordinance,

Long Beach asked the district court to vacate the prelimi-

nary injunction. Plaintiffs include beth air carriers who

*This disposition is not appropriate for publication and may not be

cited to or by the courts of this circuit except as provided by 9th Cir.

R. 21.

**Honorable C. A. Muecke, United States District Judge for the

District of Arizona, sitting by designation. °

A-2

have historically used the Long Beach airport and “new

entrant” carriers who have sought for some time to use

the airport for commercial flights. At the same time the

City of Long Beach moved to vacate the 1983 preliminary

injunetion, the “new entrant” carriers asked the court to

amend the injunction by increasing the minimum number

of permitted flights. The district court refused Long

Beach’s request to vacate the preliminary injunction and

amended that order by increasing the number of permit-

ted flights from eighteen to twenty-six per day. The

additional flights were subsequently awarded to the “new

entrant” carriers. Long Beach now appeals the 1986

actions of the district court.

We review the district court’s actions under an abuse of

discretion standard. Sports Form Inc. v. United Press

International, 686 F.2d 750, 753 (9th Cir. 1982). See also

Los Angeles Memorial Coliseum Com’n v. National Football

League, 634 F.2d 1197, 1200 (9th Cir. 1980). We affirm.

In refusing to vacate the preliminary injunction, the

district court coneluded that serious questions were

raised regarding the legality of the newly enacted noise

ordinance which contained a nonseverability clause. The

district court also coneluded that the City had failed to

formulate any plans for improvement of the airport facili-

ties. The district court took careful note of the various

interests of all parties involved, including the residents of

the City of Long Beach. It also recognized the authority

of city airport proprietors “to enact reasonable nonarbi-

trary and nondiscriminatory airport access ordinances.”

With respect to the request to increase the minimum

number of permitted flights, the district court found that

“Talny further delay in this matter [would be]

unreasonable”’. - 7

We note, preliminarily, that in issuing the 1983 prelimi-

nary injunction the district court did not abuse its disere-

A-3

tion and applied the proper legal standards. With respect

to its refusal to vacate the 1983 injunction, we conclude

that the district court’s action was well within its disere-

tion. We cannot say that the district court committed a

clear error of judgment nor do we have a firm conviction

that a mistake has been committed with respect to any

factual matters. A decision as to the validity of the newly

enacted noise ordinance must await a trial on the merits.

At that time the court can carefully examine the ordi-

nance and its effects, as well as the available alternatives,

in light of Santa Monica Airport Ass’n v. City of Santa

Monica, 659 F.2d 100 (9th Cir. 1981), and British Airways

Board v. Port Authority of New York and New Jersey, 564

F.2d 1002 (2d Cir. 1977). Similarly, with respect to

increasing the number of permitted flights, we conclude

that the district court committed no legal error and acted

within its discretion. The appropriate minimum number of

flights to be permitted in 1987, as opposed to 1982, is a

matter which we would hesitate to substitute our judg-

ment for that of a district court. In reaching this conelu-

sion we read the 1986 order in light of the findings and

conclusions issued in support of the 1983 injunction.

There are two additional points we wish to note. First,

our decision indicates no view as to the ultimate answer to

any questions involved in this case. Our standard of

review for preliminary injunctions is different from that

applicable to permanent injunctions. Second, the prelimi-

nary injunction that was recently amended was issued a

number of years ago. The purpose of preliminary injune-

tions is to ensure that the parties comply with appropriate

conditions pending resolution of the case on the merits.

A-4

Preliminary injunctions are not intended to be of indefi-

nite duration. Within a reasonable time the parties should

bring their dispute to trial on the merits or arrive at an

appropriate settlement.

AFFIRMED

APPENDIX B

Order of the United States District Court for the Cen-

tral District of California.

United States District Court, Central District of

California.

Alaska Airlines, Ine., Plaintiff, Pacific Southwest Air-

lines, Jet America Airlines, Airserv, Air California, West-

ern Airlines, America West Aijrlines, Inc., United

Airlines, Ine., American Airlines, Ine., and Ozark Air-

lines, Ine., Plaintiffs In Intervention v. City of Long

Beach, Long Beach City Council, Mare A. Wilder, Wal-

lace Edgerton, Jan Hall, Thomas J. Clark, Ernie Kell,

James Wilson, Eunice Sato, Edd Tuttle, and Warren

Harwood, Defendants, Long Beach Unified School Dis-

trict, and Long Beach Hush, Ine., Defendants In

Intervention.

Filed: October 17, 1986.

United States District Court, Central District of Cali-

fornia, (No. CV. 83-4065 LEW (Bx)).

Order Re: City gf Long Beach’s Motion to Vacate The _

Preliminary Injunction And The Plaintiff Airlines’ Mo-

tions to Modify The Preliminary Injunction.

The City of Long Beach’s motion to vacate the prelimi-

nary injunction of December 9, 1983 and the motions by

AirCal, Western, America West, United, Jet America and

Alaska to modify that injunction came on for hearing on

September 8, 1986. After oral argument, the Court denied

the City’s motion and took the airlines’ motions under

submission. The Court has considered all of the papers

submitted in connection with this matter and has consid-

ered the arguments made by counsel at the hearing. The

Court hereby grants the airlines’ motions to modify the

preliminary injunction and orders an increase of eight (8)

B-2

3

daily flights at Long Beach Airport — from the current

total of eighteen (18) daily flights to twenty-six (26)

daily flights.

As a preliminary matter, the Court recognizes the

diversity of interests involved in this case. The residents

of the City of Long Beach seek to mirimize the volume

and number of noise intrusions by airplanes serving the

airport. Those interests clash with the airlines’ goal of

increasing the number of flights at the airport. To compli-

cate matters, the air carriers themselves differ as to how

such additional flights should be allocated. AirCal, West-

ern, America West and Ozark — the “new entrants” —

seek to institute service at Long Beach Airport, an oppor-

tunity the City has persistently denied them during the

eourse of this litigation. Allocating flights to the new

entrants, they point out, furthers the policy stated in the

Airline Deregulation Act of. 1978, 48 U.S.C. 1302, of

increasing competition in the airline industry. The City

acknowledges the new entrants’ point in the most recent

noise compatibility ordinanee, which provides for the

preferential allocation of new flights to the new entrants.

Conversely, the airlines presently serving Long Beach

Airport requests that any additional flights be granted to

them. They contend that, like the new entrants, they too

have patiently awaited the flight increases. Moreover,

they argue that their flight allotment should be increased

in return for the business risk they undertook in estab-

lishing service at the airport.

The interest of the general public must also be consid-

ered. The welfare of the Long Beach residents demands a

well-planned growth policy at the airport. Such a growth

policy must also account for the public’s interest in a

vibrant national transportation system — a linechpin of

our national system of commerce.

™~

B-3

The Long Beach City Council has the formidable job of

balancing these diverse interests. As political representa-

tives of the city and proprietors of the airport, they are

answerable politically to city residents and responsible

legally for lawsuits brought due to excessive noise. In

addition, they must attend to the interests of the airlines,

the public and the national commercial system. The

courts, recognizing these responsibilities, have granted

city airport proprietors the power to enact reasonable,

non-arbitrary and non-discriminatory airport access ordi-

nances. Santa Monica Airport Ass’n. v. City of Santa

Monica, 481 F. Supp. 927 (C.D. Cal. 1979), aff'd, 647 F.

2d 3 (9th Cir. 1981).

Upon careful consideration, the Court finds that the

record raises serious questions as to the reasonableness

and fairness of the City’s program to limit growth at

Long Beach Airport. These questions are amplified by the

City’s failure to formulate a plan for improvement of

airport facilities after almost two years of studying the

airport access problem. Thus, the Court denies the City’s

motion to vacate the injunction and enact its new airport

aecess ordinance.

The Court further orders an increase of eight (8) daily

flights at the Long Beach Airport. The record clearly

shows that new flight activity at the airport is justified.

Even the City concedes in its new ordinance that a total

of thirty-two (32) daily flights can be accommodated at

the airport. Moreover, the Part 150 study task force — a

City-appointed group that extensively studied the issues

of noise and access — recommended that a total of forty-

one (41) daily flights could be handled. While an FAA

review of the task force recommendations would add

another objective analysis to the voluminous data, such a

study would also add at least another six months of delay

to this protracted litigation. Any further delay in this

B-4

matter is unreasonable, defeats the public interest and

contradicts the Congressional policy of a vibrant and

competitive airline industry.

The City is invited to submit a proposal as to the

method of allocation of these additional eight (8) daily

flights. Such a proposal should address the interests

aforementioned in this Order and be submitted by No-

vember 7, 1986. Upon receipt of the City’s reeommenda-

tions, comments will be solicited from all interested

parties.

IT IS SO ORDERED.

LAUGHLIN E. WATERS

Sr. United States District Judge

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On June 10, 1987, I served the within Petition for Writ of

Certiorari in re: “City of Long Beach vs. Aireal Inc.,

America West Airlines” in the United States Supreme

Court, October Term 1986, No. 86-6661 and 86-6662;

On the Parties in said action, by placing Three copies

thereof enclosed in a sealed envelope with postage fully

prepaid, in the United States post office mail box at Los

Angeles, California, addressed as follows:

John R. Calhoun, Esq.

City Attorney of Long Beach

333 West Ocean Boulevard

Suite 1100

Long Beach, CA 90802

City of Long Beach

Thomas S. Kerrigan, Esq.

McLaughlin & Irvin

801 S. Grand Avenue,

Third Floor

Los Angeles, CA 90017-4621

Long Beach Unified School

District

(defendant in intervention)

Michael Scott Gatzke, Esq.

Eckmann, Lodge & Gatzke

2890 Pio Pico Drive, Suite E

Post Office Box 1636

Carlsbad, CA 92008

County of Orange

(amicus curiae)

Dennis C. O’Dell, Esq.

Pacifie Southwest Airlines

3225 North Harbor Drive

San Diego, CA 92010

Pacifie Southwest Airlines

(plaintiff in intervention)

Peter B. Work, Esq.

David H. Solomon, Esq.

Crowell & Moring

1100 Connecticut Avenue, N.W.

Washington, D.C. 20036

PSA

(plaintiff in intervention) (1)

George A. Juarez, Esq.

Dennis, Juarez, Reeser,

Shafer & Young

2049 Century Park East,

Suite 1900

Los Angeles, CA 90067

Alaska Airlines, Ine.

(plaintiff)

Sylvia Cano Hale

Deputy Attorney General

3580 Wilshire Boulevard,

Room 800

Los Angeles, CA 90010

Cal. Attorney General

(amicus curiae)

George Lewis Chelius, Esq.

610 Newport Center Drive,

Suite 1665

Newport Beach, CA 92660

Jet America Airlines, Inc.

- (plaintiff in intervention)

Kenneth N. Weinstein

Deputy Assistant General

Counsel for Litigation

Office of the General Counsel

U.S. Dept. of Transportation

400 7th Street, S.W.

C-30 Room 10106

Washington, D.C. 20590

U.S. Dept. of Transportation

(amicus curiae)

Edward P. Faberman, Esq.

Deputy Chief Counsel

Federal Aviation Administration

800 Independence Avenue S.W.

Room 900E

Washington, D.C. 20591

Federal Aviation Administration

(amicus curiae)

Jan David Blais, Esq.

Alaska Airlines, Inc.

19300 Pacific Highway South

Post Office Box 68900

Seattle, Washington 98168

Alaska Airlines, Inc.

(plaintiff) (1)

Michael A. Thurman, Esq.

Keesal, Young & Logan

Catalina Landing

310 Golden Shore

P.O. Box 1730

Long Beach, CA 90801-1730

Long Beach Hush, Ine.

(defendant in intervention)

William A. Masterson, Esq.

Skadden, Arps, Slate,

Meager & Flom

300 South Grand Avenue

Thirty-Fourth Floor

Los Angeles, CA 90071

Jet America Airlines, Inc.

(plaintiff in intervention) (1)

Evelyn Balderman Hutt, Esq.

Hufstedler, Miller, Carlson

& Beardsley

700 South Flower Street

16th Floor

Los Angeles, CA 90017

Airserv

(plaintiff in intervention)

Richard M. Sherman, Jr., Esq.

Irell & Manella

840 Newport Center Drive

Suite 500

Newport Beach, CA 92660

AirCal Ine.

(plaintiff in intervention)

Robert C. Bonner

United States Attorney

James Stotter, Il

Asst. United States Attorney

312 North Spring Street

Los Angeles, CA 90012

United States Attorney

(amicus curiae)

Raymond Larizza, Esq.

U.S. Department of Justice

10th & Constitution Ave., N.W.

Washington, D.C. 20530

U.S. Department of Justice

(amicus curiae) (1)

John J. Lyons, Esq.

Latham & Watkins

555 South Flower Street

Suite 4600

Los Angeles, CA 90037

America West Airlines, Inc.

(plaintiff in intervention)

John E. Gillick, Esq.

Winthrop, Stimson, Putnam

& Roberts

Suite 1000

1155 Connecticut Avenue, N.W.

Washington, D.C. 20036

America West Airlines, Inc.

(plaintiff in intervention) (1)

George H. King, Esq.

1925 Century Park East

Suite 1250

Los Angeles, CA 90067

Delta Airlines, Inc.

(plaintiff in intervention)

Kathleen P. March, Esq.

Demetriou, Del Guercio

& Lovejoy

649 So. Olive Street

Suite 500

Los Angeles, CA 90014

Delta Airlines, Inc.

(plaintiff in intervention) (1)

Thomas G. Allison, Esq.

Pauli J. Lawrence, Esq.

Preston, Thorgrimson,

Ellis & Holman

5400 Columbia Sea-First Center

701 Fifth Avenue

Seattle, Washington 98104-7011

Delta Airlines, Inc.

(plaintiff in intervention) (1)

Thomas J. Greene

Vice President, Secretary

and General Counsel

Western Airlines, Ince.

6060 Avion Drive

Los Angeles, CA 90045

Delta Airlines, Inc.

(plaintiff in intervention) (1)

Robert S. Span, Esq.

Paul, Hastings, Janofsky

& Walker

1299 Ocean Avenue

Fifth Floor

Santa Monica, CA 90401

United Airlines, Inc.

(plaintiff in intervention)

Don T. Hibner, Jr., Esq.

Sheppard, Mullin, Richter

& Hampton

333 South Hope Street,

Forty-Eighth Floor

Los Angeles, CA 90071

American Airlines, Ince.

(plaintiff in intervention)

James M. Derr, Esq.

Robert J. Marshall, Esq.

Belcher, Hanzie & Biegenzahn

333 South Hope Street

Suite 3650

Los Angeles, CA 90071-1479

Trans World Airlines, Ine.

(plaintiff in intervention)

Raymond J. Ikola, Esq.

Wenke, Taylor, Evans & Ikola

4000 MacArthur Blvd., Ste. 540

Newport Beach, CA 92660,

Douglas Aireraft

(amicus curiae)

Stephen P. Sawyer, Esq.

Legal Department

United Airlines, Inc.

1200 E. Algonquin

Elk Grove Township, IL 60007

United Airlines

(plaintiff in intervention) (1)

Richard J. Hannan

Regional Director, West Coast

Air Transport Association

8939 S. Sepulveda Blvd.

Suite 408

Los Angeles, CA 90045-3690

Air Transport Association (1)

Bonnie I. Bogin, Esq.

Rosenfeld, Meyer & Susman

9601 Wilshire Blvd.

4th Floor

Beverly Hills, CA 90210

Westair Airlines (1)

Leo J. Vander Lans, Esq.

William J. James, Esq.

Graham & James

725 South Figueroa Street

34th Floor

Los Angeles, CA 90017-5434

Federal Express Corporation

(plaintiff in intervention)

Stephen J. Pettit, Esq.

Julie H. Ellis, Esq.

Federal Express Corporation

Post Office Box 727

Memphis, Tennessee 38194-1842

Federal Express Corporation

(plaintiff in intervention) (1)

J. Larson Jaenicke

Diane B. Sherman

Ritala, Smoot, Jaenicke &

Brunswick

10351 Santa Monica Blvd.

Suite 400

Los Angeles, CA 90025

Continental Airlines

(plaintiff in intervention)

Susan Smith, Esq.

Delta Airlines, Inc.

Department 971

Hartsfield Atlanta International

Airport

Atlanta, Georgia 30320

Delta Airlines, Ine.

(plaintiff in intervention) (1)

Richard A. Malahowski, Esq.

American Airlines, Inc.

P.O. Box 619616

Dallas/Fort Worth, TX 75251

American Airlines, Ine.

(plaintiff in intervention) (1)

All Parties required to be served have been served.

' certify (or declare), under penalty of perjury, that the

foregoing is true and correct.

Executed on June 10, 1987, at Los Angeles, California

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