# Petition for Writ of Certiorari — City of Long Beach v. Aircal Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0390%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 827 ## Text | PTeeD ‘ D 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 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 ee ae OO ee ¥ “e ° on sy ts 4 $ P a = ae ‘w oA = Set eo ee * ae tas te 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 - / . / ; ? ; , CE CE MEDINA Subsefibed and Sworn to before me this _ 7 77 day of See sex . 1987. J, / jo J27/ KH My Commission Expires > Pay A ath VA Jiilelor Notary Public te ee Oe OO eee rrerenv aT » & ‘ rw SE *\ hs cvs \ WT Seabee JUNE A RAASON 7 "O