Petition for Writ of Certiorari — Delta Air Lines, Inc. v. Port Authority

EILED

me iS

87-3 33 a

No. 87- JOSEPH F. SPANIOL, JR,

pinarumesns | — CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

~ f Supreme Court, U.S,

DELTA AIR LINES, INC.,

Petitioner,

Wa

Port AUTHORITY OF NEW YORK AND NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ALLYN O. KREPS

(Counsel of Record)

Of Counsel Louis TOUTON

ERWIN N. GRISWOLD ROBERT DEBERARDINE

ROBERT LAYTON JONES, Day, REAVIS

JONES, Day, REAVIS & POGUE

& POGUE 355 South Grand Avenue

1450 G Street, N.W. Suite 3000

Washington, D.C. Los Angeles, CA

20005-2088 90071

(202) 879-3939 (213) 625-3939

WALTER BRILL Counsel for Petitioner

Law Department

Delta Air Lines, Inc.

1030 Delta Boulevard

Atlanta, GA 30320

(404) 765-2692

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. May a local governmental agency limit the dis-

tance of non-stop airline flights, in view of section

105(aX1) of the Airline Deregulation Act of 1978, 49

U.S.C. app. § 13805(aX1), which prohibits states and

interstate agencies from regulating the “‘rates, routes,

or services of any air carrier’?

2. Do the “proprietary powers’ of airport operators

preserved by section 105(b\(1) of the Airline Dere-

gulation Act, 49 U.S.C. app. § 1305(b\1), include the

power to impose an extraterritorial restriction upon

the distance of non-stop flights? -

3. Does a local governmental agency operating air-

ports have any jurisdiction over the use made by air-

lines of airport “landing slots” granted by the FAA

under 14 C.F.R. §§ 93.121-93.133?

iii

ii

PARTIES INVOLVED

The parties to this proceeding in the courts below

were Western Air Lines, Inc., and the Port Authority

of New York and New Jersey. On April 1, 1987, after

final briefing and argument in the Court of Appeals,

Western Air Lines, Inc. merged with Delta Air Lines,

Inc. This petition is brought by Delta Air Lines, Inc.,

as the surviving company following the merger.*

*The parent companies, subsidiaries (except wholly owned

subsidiaries) and affiliates of Delta Air Lines, Inc. are Atlantic

Southeast Airlines, Inc.; Comair, Inc.; and Gatwick Handling,

Ltd.

TABLE OF CONTENTS

Page

STINE IOS TEND os ccsccccccesescccscnscoscscnscccensensess i

coisa cindetiavescns untseastbovecsechsonsseesont il

EE TE RM INEU EINE iscicsescsescecccccescrcsecsseseosseonsese iv

Neen acs sa snannendeosonsvasnessassenrs 1

JURISDICTION .......... ESTE CS aa a eR 1

STATUTORY PROVISIONS INVOLVED ............sssseeeeeeeees 2

le kdk celal shicedoetnnisagudeniesansenenestes 3

REASONS FOR GRANTING THE WRIT ...........cceseeeeeeee 7

I. By Sanctioning Local Regulation of Airline

Routes as the Exercise of a “Proprietary

Power,” the Decision Below Conflicts in Ap-

proach with Decisions of this and Other

CN Rae Liicaaihid harsieunncepsbasdvanssevcediveaytarsens 7

A. This Court’s decision in City of

I alah cnaibeernduaiipaebintddvignaivensinveces 10

B. The decision of the Ninth Circuit in San

Diego Unified Port District ...........00000 11

II. The Decision Below Imperils the Congres-

sional Objective of Airline Deregulation ..... 12

III. This Court Should Grant Review to Preserve

the Exclusive Role of. the FAA to Manage

CE TM PRPS oe ciccccccscccscescsencesscnccooss 16

a ina sae teinanapercepucrininesdsnaneess 19

APPENDIX A: District Court Opinion, September 3,

(ESERIES PRES efatterae ete ten arp ea RE ee la

APPENDIX B: Second Circuit Opinion, April 22,

PEERS RESTOR SS” OIE tare er ie oe aa oe 19a

APPENDIX C: Second Circuit Order Denying

Rehearing, May 28, 1987 ............... 28a

iv

TABLE OF AUTHORITIES

CASES: Page

British Airways Board v. Port Authority, 564 F.2d

BE Ge Bae CED :stitineneniencpctacenvidsanianacinnsncs 11

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

PUR RRS Oe Be sR emer one 10,17-18

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

RITE. disses varioeeannicoabicerniiabndbendaimmubieabaumeonenes 14-15

Griggs v. Allegheny County, 369 U.S. 84 (1962) .. 11

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292

EEE sich ssiecaeshoacdohescareaacaubaishteiktiuids ns Undalisonetbas 10

Railway Express Agency v. CAB, 345 F.2d 445 (D.C.

Cir. 1965), cert. denied, 382 U.S. 879

CLIT: sisicctaiacrapilcnaiinndcpiabethadacsaetincimibadtiguninataente 8

San Diego Unified Port District v. Gianturco, 651

F.2d 1306 (9th Cir. 1981), cert. denied, 455

UB: a SR instincts sinters sdncxtbassdsiauiiinenvie 11-12

Santa Monica Airport Ass’n v. City of Santa Mon-

ica, 659 F.2d 100 (9th Cir. 1981) _................ 11

Southwest Airlines, Automatic Market Entry, 83 .

C.A.B: G44 (T9T9) — ncscsonreccrococsasoresnseressocscenssees 15

STATUTUES:

Airline Deregulation Act of 1978, Pub. L. No. 95-

NG, SE BRIE: RO sctinincantastennibnesiieincaastsrecesange 3,7-8

Metropolitan Washington Airports Act of 1986, Pub.

L. No. 99-591, §§ 6001-6012, 100 Stat.

UIA... cpancchshasccsesn Geel aaneacas te eeiaid aed nnndnenasis 15

International Air Transportation Competition Act

of 1979, Pub. L. No. 96-192, 94 Stat. 35

(SDI: iscantesinsestaniavaidtsubbebidinnassiastaieinatetiltinasensssess 15-16

SY ote Ss: RNIN Ui mere ye nee ieee 2

es = ceeaeccctsburaeancsoralacsicnednasnsraenye 6

es are isipccgrcnsednanpciongtieresennnse 6

OE WA Pe Senececctnschetnettsitindcinicn 6

BD UES. OD TD neccrccitctesctvscnesnstoscsccnss 8

Table of Authorities Continued

| Page

Fr, Be BD Siicscdinictecctwaiisisnsereiccdacadjavones 3,8

OF FE I D asseeciessnecenccnncnncegranzcsin’ 8

Bee ie SE Siadiisitasntcccntsnesccodannieniens 6

Be Fee Hy eI bipicsiccesieticccnsesecnssnssasensees 2,3,8

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Oe Sa i ean isoctarccnhreseresitanendntens v 16

Gre Te BD | sasincesetnsactescscsscshicintadecans 6

Oe ee TN aseiscsetccapateccientndencdaconnceionns 3

ey ee IE | denn snnnctadtnnscansannsesagtonions 6

REGULATIONS:

Special Federal Aviation Regulation No. 48, 51 Fed.

Reg. S682 (Mar: 12, 1986) ........0c....ccceccssesesess 17

EG Gee I MRD © sessbicdocacarsseonsnensicconcasess 5

14 C.F .R. $§ 96.211-98.229 (1987) _ ...........scccccsseeee 17

Sh Sa tee NED, Shits irknnsncscscnssnnssonaossens 15

14 C.F.R. § 399.110(f) (1987) __............. iiacmaniiaadlie 15

LEGISLATIVE MATERIALS:

Burbank, Calif., Airport—Noise and Safety Prob-

lems: Hearings Before a Subcomm. of the House

Comm. on Government Operations, 96th Cong.,

Eanes et al Oe rar geen 14

Regulatory Reform in Air Transportation: Hearings

Before Subcomm. on Aviation of the Senate

Comm. on Commerce, Science, and Transpor-

tation, 95th Cong., Ist Sess. (1977) ............. 9

H.R. Rep. No. 1211, 95th Cong., 2d Sess., reprinted

in 1978 U.S. Code Cong. & Admin. News

~ SIFT cncccnssastadadieaabialapiaiiiss ie scucijspiclettpaebinicke 8

H.R. Conf. Rep. No. 716, 96th Cong., 2d Sess.,

“reprinted in 1979 U.S. Code Cong. & Admin.

News 78

cnisilntdsuibincabaasicidecainodsddateiredcemanhetbits 16

Table of Authorities Continued

Page

H.R. Rep. No. 7938, 98th Cong., 2d Sess., reprinted

jo 1984 U.S. Code Cong. & Admin. News

TEUIET "ci kai fintnieanssccdpananbecumnsdecicialaaaiaiinnaaeasicbanies 8

OTHER AUTHORITY:

AIRLINE TRANSPORT ASS’N, AIR TRANSPORT-1987:

THE ANNUAL REPORT OF THE U.S. SCHEDULED

AIRLINE INDUSTRY (1987) ..........cccccscssseccesscees 4

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-

DELTA AIR LINES, INC.,

Petitioner,

Vv.

PorT AUTHORITY OF NEW YORK AND NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Delta Air Lines, Inc., prays that a writ

of certiorari be issued to review the judgment of the

United States Court of Appeals for the Second Circuit

entered in these proceedings on April 22, 1987.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Second Circuit, reported at 817 F.2d 222, is

reproduced in the appendix at pp. 19a-27a. The Dis-

trict Court’s opinion, reported at 658 F. Supp. 952,

is reproduced in the appendix at pp. 1a-18a.

JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit was entered on April 22, 1987.

(App. 19a.) The Court of Appeals denied a timely

petition for rehearing on May 28, 1987. (App. 28a.)

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

49 U.S.C. app. § 1305(aX1):!

Except as provided in paragraph (2) of this

subsection [relating to Alaska], no State or

political subdivision thereof and no interstate

agency or other political agency of two or

more States shall enact or enforce any law,

rule, regulation, standard, or other provision

having the force and effect of law relating

to rates, routes, or services of any air carrier

having authority under subchapter IV of this

chapter to provide air transportation.

49 U.S.C. app. § 1305(b\1):

Nothing in subsection (a) of this section shall

be construed to limit the authority of any

State or political subdivision thereof or any

interstate agency or other political agency of

two or more States as the owner or operator

of an airport served by any air carrier cer-

1 Since its 1982 edition, the official version of United States

Code has presented title 49 in a main portion (containing sections

enacted into positive law) and in an appendix (containing other

sections). The sections of title 49 referred to in this petition are

contained in chapter 20, which has not yet been enacted into

positive law, and are therefore cited to the appendix. The bound

volumes of U.S.C.A. and U.S.C.S. and the current pocket part

to U.S.C.A. present chapter 20 (the sections of which are

uniquely numbered) in the main portion of title 49.

|

tificated by the Board to exercise its vro-

prietary powers and rights.

STATEMENT

In 1978, Congress enacted the Airline Deregulation

Act, ending forty years of pervasive federal economic

regulation of commercial aviation under the auspices

of the Civil Aeronautics Board (““CAB’’). Pub. L. No.

95-504, 92 Stat. 1705 (1978). Premised on a decla-

ration that “‘maximum reliance [should be placed] on

competitive market forces and on actual and potential

competition,’ the Act provided that deregulation

would occur over a seven-year period during which

requirements that air carriers obtain prior CAB ap-

proval of the rates they charged, the routes they

served, and the services they provided would be elim-

inated in phases. 49 U.S.C. app. §§ 1302(a)4), 1551.

While federal economic regulation was eliminated, the

Federal Aviation Administration (“FAA”) remained

responsible for managing the nation’s airspace.

To prevent local authorities from regulating what

Congress intended to deregulate, the Act included

preemption provisions which, with certain limited ex-

ceptions, explicitly preempted regulations ‘‘relating to

rates, routes, or services of any air carrier.” 49 U.S.C.

app. § 1305(aX1). At the same time, the Act pre-

served the then-existing “proprietary powers and

rights” of local entities operating airports. 49 U.S.C.

app. § 1305(b\1).

Since deregulation, the airline industry has grown

substantially. With flexibility in rates and fares, ex-

isting airlines expanded and new ones emerged. Pas-

senger miles grew 61.5% between 1978 and 1986 and

takeoffs and landings rose 28.0%. In this atmosphere,

competition heightened and fares dropped, in many

cases dramatically. AIRLINE TRANSPORT ASS’N, AIR

TRANSPORT— 1987: THE ANNUAL REPORT OF THE U.S.

SCHEDULED AIRLINE INDUSTRY 2 (1987).

At the time this action was commenced, Western

Air Lines operated daily flights out of a hub located

in Salt Lake City, Utah,? and, after Western’s merger

with Delta Air Lines, Delta continues those operations

today. A hub is an airport used by an airline as its

central point of origination for connecting flights. By

coordinating flights through a hub, an airline can

serve various city pairs that cannot be served eco-

nomically on a non-stop basis.*

In 1984, respondent, the Port Authority of New

York and New Jersey, adopted a rule that established

the maximum permissible distance of non-stop flights

into and out of LaGuardia Airport at 1500 miles.‘

The stated purpose of the rule is to ‘“‘reduce ground

congestion and maintain LaGuardia as a short and

medium haul airport by diverting traffic to Newark

and Kennedy.’

In order to compete effectively in the New York

City airline market, Western determined that it must

provide nonstop service to LaGuardia from its Salt

Lake City hub. LaGuardia is one of four high-traffic

> App. 2a, 658 F. Supp. at 953.

3 Id.

‘ See id. (“Prior to 1984, the perimeter rule at LaGuardia was

an informal one... .’’).

> Jd. The Port Authority also operates Newark and Kennedy

International Airports. Jd.

airports® where arrivals and departures are limited by

the FAA through the use of “slots’.’ Accordingly,

Western applied for and received several highly de-

sirable slots at LaGuardia in a March 27, 1986, lottery

conducted by the FAA. (App. 20a, 817 F.2d at 223.)

Upon receiving these slots, Western requested the

Port Authority to allow it to commence non-stop ser-

vice between LaGuardia and Salt Lake City. The Port

Authority denied those requests solely because Salt

Lake City is 1,989 miles from LaGuardia. As a con-

sequence, the Port Authority allows Western’s (and

now Delta’s) biggest competitors for air traffic in the

Rocky Mountain region (United and Continental) to

fly directly between their Denver hubs and La-

Guardia,’ while it allows Delta to serve LaGuardia

from its Salt Lake City hub only by use of connecting

flights, greatly increasing travelling time and making

such routes noncompetitive. Accordingly, Delta is ef-

fectively precluded from serving LaGuardia, a vital

segment of the New York City market, from its Salt

Lake City hub.

On August 18, 1986, Western filed suit in the

United States District Court for the Southern District

* The other three high-traffic airports using the “‘slot’”’ system

are Kennedy International Airport, O’Hare International Airport

and Washington National Airport. 14 C.F.R. § 93.123 (1987).

7A “slot” is the authority to conduct one instrument flight

rule landing or takeoff during a specific period. At LaGuardia,

a slot allows a takeoff or landing within a thirty minute period.

App. la, 658 F. Supp. at 953.

8 Although Denver is 1,638 miles from LaGuardia, the Port

Authority has adopted an exception to the perimeter rule to

allow non-stop flights to Denver. App. 2a, 658 F. Supp. at 953-

54.

of New York challenging LaGuardia’s perimeter rule

under section 105(a) of the Deregulation Act, 49

U.S.C. app. § 1305(a),° and 42 U.S.C. § 1983. The

subject matter jurisdiction of the district court was

invoked under 28 U.S.C. §§ 1331 and 1343.

On September 3, 1986, after a one-day bench trial,

the district court denied Western’s request for in-

junctive relief, and dismissed the action. Although the

district court ruled that the perimeter rule affected

“‘rates, routes and services” and therefore fell within

section 105(a)’s ambit of preemption, it nonetheless

upheld the Port Authority’s direct and extraterritorial

limitation on non-stop flights. The court held that

section 105(b) permits a local governmental airport

proprietor to impose such rules provided they are

“reasonable in light of the legitimate objectives sought

to be achieved.” (App. 13a-14a, 658 F. Supp. at 959.)

Noting the Port Authority’s claim that business trav-

ellers create less congestion than do vacationers and

that the perimeter rule tends to encourage business

travel at LaGuardia and to divert vacationers to other

airports, the district court ruled that the Port Au-

thority’s decision ‘“‘was not unreasonable.”’ (App. 17a,

658 F. Supp. at 960.)'°

® Western also asserted claims under 49 U.S.C. app. § 1349(a)

(prohibiting exclusion of air carriers from airport facilities) and

49 U.S.C. app. § 2210(a) (the fair treatment provisions of the

Airport and Airway Improvement Act of 1982).

© It should be noted that all of Florida, probably New York’s

largest vacation destination, is within the perimeter and is served

by many flights from LaGuardia. The Port Authority presented

no evidence demonstrating that longer flights, such as New York-

Salt Lake City, carry more vacation travellers or create more

congestion than flights within the perimeter, such as New York-

Ac ternal

Western appealed to the United States Court of

Appeals for the Second Circuit. On April 22, 1987

that court affirmed, adopting the rationale of the dis-

trict court’s decision in all respects. With regard to

the section 105 preemption issue, the Second Circuit

held that ‘‘at least when enacted by a multi-airport

proprietor such as the [Port] Authority, [a perimeter

rule] falls within the proprietary powers of airport

operators exempted from preemption by section

1305(b\1).”’" While both the Second Circuit and the

district court alluded to the fact that the Port Au-

thority runs Newark and Kennedy International Air-

ports as well as LaGuardia, neither court explained

how that fact exempted the Port Authority from the

express preemption of section 105.

REASONS FOR GRANTING THE WRIT

I. By Sanctioning Local Regulation of Airline Routes as

the Exercise of a “‘Proprietary Power,’’ the Decision

Below Conflicts in Approach with Decisions of this and

Other Courts.

In enacting the Airline Deregulation Act of 1978,

Congress made fundamental changes to the manner

in which the airline industry operates and is regu-

lated. Noting that forty years of intensive economic

regulation by the Civil Aeronautics Board had re-

sulted in inflexible, inefficient, and noncompetitive op-

eration of the airlines, Congress determined that

Florida flights. Moreover, as noted in n. 8, supra, the Port

Authority has adopted an exception to the perimeter rule to

allow flights from LaGuardia to Denver, another major vacation

destination, even though Denver is more than 1600 miles from

LaGuardia.

4 App. 27a, 817 F.2d at 226.

competition and market forces. should determine

where airlines will fly and at what price to the public.'”

During the period of CAB regulation, it was clear

that regulation of interstate airline rates, routes, and

services by local governments was preempted.!* Con-

gress continued this preemption through section

105(aX1) of the Airline Deregulation Act, which ex-

pressly provides that—

no State or political subdivision thereof and

no interstate agency or other political agency

of two or more States shall enact or enforce

any law, rule, regulation, standard, or other

provision having the force and effect of law

relating to rates, routes, or services of any

air carrier having authority under subchapter

IV of this chapter to provide air transpor-

tation.

49 U.S.C. app. § 1805(aX1). Thus, local governments

were expressly prohibited from regulating what Con-

gress deregulated.

The courts below recognized that perimeter rules

adopted as local governmental regulations are

preempted by section 105(a). But the courts erro-

12, H.R. Rep. No. 1211, 95th Cong., 2d Sess. 2-5, reprinted in

1978 U.S. Code Cong. & Admin. News 3737, 3737-41; H.R. Rep.

No. 793, 98th Cong., 2d Sess. 2-3, reprinted in 1984 U.S. Code

& Admin. News 2857, 2858-59; see also 49 U.S.C. app.

§ 1302(aX3),(4),(9).

13 See, e.g., Railway Express Agency v. CAB, 345 F.2d 445,

449 (D.C. Cir. 1965), cert. denied, 382 U.S. 879 (1965) (‘“‘Under

the Feder | Aviation Act, the [CAB] is given exclusive authority

and responsibility for the economic regulation of the air trans-

portation industry ... .’’).

neously held that local governments may achieve this

result in their proprietary capacity as airport oper-

ators. In making this distinction, the courts below

relied on section 105(b\1) of the Act, a provision

which was enacted in response to a concern that sec-

tion 105(a) might prevent local governments owning

airports from continuing to exercise their then-exist-

ing powers to deal with strictly local problems, such

as noise and other environmental problems."

Instead of recognizing the limited scope of the pow-

ers reserved to local governmental airport proprie-

tors, the decision below held that they are free to

adopt rules which directly regulate rates, routes, and

services, so long as the means chosen are ‘‘reasonable

144 Thus, Dr. William J. Ronan, Chairman of the Port Author-

ity, submitted the following statement to the Senate subcom-

mittee concerning section 105:

The Port Authority is concerned that this provision may

unintentionally impair airport operators’ proprietary rights.

We understand the object of the provision to be the pre-

vention of states expanding their air transportation regu-

latory activities at the same time that Federal regulaions

[sic] are being loosened. However, its vague wording could

be misleading. Specifically, the prohibition against local gov-

ernmental laws, regulations or standards “‘relating to’’ rates,

routes and services could be interpreted as limiting the air-

port operator’s rights to levy charges and promulgate op-

erational regulations if they are deemed to be “related to”’

rates, routes and services. Any Federal preemption provi-

sions should therefore state clearly that it [sic] is not in-

tended to infringe on airport operators’ proprietary rights.

Regulatory Reform in Air Transportation: Hearings Before Sub-

comm. on Aviation of the Senate Comm. on Commerce, Science,

and Transportation, 95th Cong., 1st Sess., pt. 4, at 1990 (1977)

(statement of Dr. William J. Ronan) (emphasis added).

10

in light of the legitimate [local] objectives sought to

be achieved.’’® The decision below significantly ex-

pands the scope of the “proprietary powers’’ estab-

lished by prior decisions and constitutes judicial

legislation that seriously undercuts the economic der-

egulation scheme enacted by Congress.

A. This Court’s decision in City of Burbank

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

411 U.S. 624 (1978), this Court held invalid a city’s

attempt to limit airport noise by imposing a curfew

on takeoffs and landings. This Court noted the broad

scope of federal preemption of aviation matters:

“Federal control is intensive and exclusive.

Planes do not wander about in the sky like

vagrant clouds. They move only by federal

permission, subject-to federal inspection, in

the hands of federally certified personnel and

under an intricate system of federal com-

mands.”’

Id. at 633-34 (quoting Northwest Airlines, Inc. v. Min-

nesota, 322 U.S. 292, 303 (1944)). The decision in

Burbank recognized that aviation requires ‘‘a uniform

and exclusive system of federal regulation.’’ 411 U.S.

634-35, 639.

In footnote 14, however, Burbank noted the “‘pro-

prietary powers’”’ exception to broad-federal preemp-

tion in aviation matters. That exception, as later

elaborated by the Courts of Appeals, allows local gov-

ernmental airport proprietors to regulate the manner

in which their airports are used in order to limit noise

15 App. 13a-14a, 658 F. Supp. at 959.

11

and other environmental problems.'* The Courts of

Appeals have considered this power necessary to al-

low airport proprietors to protect themselves from

liability to neighboring landowners for inverse con-

demnation under Griggs v. Allegheny County, 369 U.S.

84 (1962).}”

Never before, however, has a court construed the

proprietary power exception to allow a local govern-

mental airport operator to regulate extraterritorially

airline activities that do not occur on the airport’s

grounds and that do not give rise to any prospect of

liability by the airport operator.

B. The decision of the Ninth Circuit in San Diego Un-

ified Port District

In deciding that the “‘proprietary powers’’ exception

permits a local governmental airport proprietor to

regulate airline routes and other extraterritorial mat-

ters so long as the regulation is “‘reasonable,” the

decision below conflicts with the decision in San Diego

Unified Port District v. Gianturco, 651 F.2d 1306 (9th

Cir. 1981), cert. denied, 455 U.S. 1000 (1982). In that

case, the Ninth Circuit ruled that the proprietary

powers exception applies only to regulations imposed

by a local governmental agency that are designed to

limit the agency’s liability arising from its operation

16 Santa Monica Airport Ass’n v. City of Santa Monica, 659

F.2d 100 (9th Cir. 1981); see also San Diego Unified Port District

v. Gianturco, 651 F.2d 1306, 1316-19 (9th Cir. 1981), cert. de-

nied, 455 U.S. 1000 (1982); British Airways Board v. Port Au-

thority, 564 F.2d 1002, 1010 (2d Cir. 1977) (‘‘extremely limited

{proprietor’s] role’).

17 See authorities cited in n. 16, supra.

12

of the airport.'* The Ninth Circuit’s approach is in

sharp contrast to that of the decision below, which

would permit any local rule that is said to be rea-

sonably designed to address any local problem, with-

out regard to whether local governmental liability

might ensue and without regard to its direct effect

on rates, routes, or services.

II. The Decision Below Imperils the Congressional Objec-

tive of Airline Deregulation.

The decision below also departs from established

precedent by granting extraterritorial jurisdiction to

local government airport operators and by permitting

them to regulate airline rates, routes, and services

directly. Past decisions, as well as the legislative his-

tory of section 105(b), proceeded on the basis that

regulations based on an airport operator’s proprietary

powers would be limited to the proprietary boundaries

of the airport and would only incidentally affect rates,

routes, and services.

By permitting direct local regulation of the length

of non-stop flights and thus of rates, routes, and ser-

vices, the decision below undercuts the federal plan

of deregulation. A principal goal of deregulation was

to provide abundant, affordable, and convenient air

service. This goal was to be achieved by allowing

rates, routes, and services to be governed by market

forces, not by governmental regulations. Perimeter

18651 F.2d 1316-17, 1319. Thus, the Ninth Circuit stated that

“City of Burbank’s proprietor exception looks to who will pay

for the taking of air easements.”’ Jd. at 1319. The court found

that because the state agency seeking to regulate did not operate

the airport, it could not invoke the proprietary powers exception.

Id. at 1316-19.

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13

rules, however, thwart this goal by directly prohib-

iting air carriers from flying where passengers wish

to go. Instead, such rules require airlines to make

arbitrary and unnecessary intermediate stops on long

flights. The ultimate effect is to make air service

unnecessarily inconvenient and expensive by prohib-

iting airlines from offering routes that the market

desires but that an airport operator deems undesir-

“able. If widely adopted by local airport authorities,

perimeter rules will greatly reduce the availability of

direct flights and accordingly will balkanize the na-

tion’s airline system.”

Moreover, the rationale of the decision below. per-

mits a broad range of local governmental regulations

covering all phases of-airline operations. Thus, the

rationale would justify a local governmental airport

proprietor in adopting measures intended to reduce

ground congestion that reach far beyond the airport’s

boundaries. For example, a local airport proprietor

could discourage vacation travel (which the Port Au-

thority claims its perimeter rule is designed to do) by

prohibiting airlines from offering discount fares to

vacation travellers. Similarly, a proprietor could limit

congestion by limiting the number of passengers air-

lines may carry, by regulating schedules, or by re-

stricting the amount of baggage that airlines may

carry for each passenger.

1° This effect would not be reduced significantly if application

of the decision below were limited to multi-airport proprietors.

Many cities, either directly or through local governmental airport

authorities, operate both a principal airport and one or more

smaller ‘‘satellite’ airports. Route limitations at any major air-

port, based solely on the desires of the local airport operator,

do serious harm to the Congressionally mandated market-based

system for air travel.

14

Until the decision below, the fundamental inconsis-

tency between economic deregulation and local rules

governing where airlines may fly, such as perimeter

rules, was well recognized. As the Civil Aeronautics

Board informed Congress during the deregulatory

process:

Enactments by state and local governments

relating to routes, rates and services are spe-

cifically preempted by the Deregulation Act.

What that means, for example, is that an

airport may not place procedural hurdles in

the path of new air service which have the

effect of preventing, or seriously inhibiting,

a carrier’s management from instituting new

service reasonably promptly. Jt also means

that a local airport authority cannot decide

that service to Denver or Salt Lake City is

more important than more service to San

Francisco. Such actions would thwart dere-

gulation and run counter to the ground rules

established by Congress.

Burbank, Calif., Airport—Noise and Safety Problems:

Hearings Before a Subcomm. of the House Comm. on

Government Operations, 96th Cong., 1st Sess. at 263

(1980) (statement of Civil Aeronautics Board, pre-

sented by Gloria Schaffer) (emphasis added). Thus,

under the administrative interpretation of section 105,

extraterritorial or direct regulations of routes are not

exercises of proprietary powers and are invalid.”

20 As the courts below apparently recognized, the decision in

City of Houston v. FAA, 679 F.2d 1184 (5th Cir. 1982), is not

to the contrary. That decision approved a 1000-mile perimeter

: %

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This interpretation is embodied in both federal

regulations” and administrative decisions. In South-

west Airlines, Automatic Market Entry, 83 C.A.B.

644 (1979), the CAB rejected a claim by the govern-

mental agency operating Dallas/Fort Worth Regional

Airport and Dallas’ Love Field that it could divert

all interstate flights from Love Field to Dallas/Fort

Worth by use of its proprietary powers under section

105(b). Finding that section 105(b) ‘‘was not intended

to give airport operators additional proprietary

rights,” id. at 652, the CAB adopted a decision which

found that the prohibition on interstate flights at Love

Field ‘‘conflict{ed] with the provisions and policies of

the Act and [was] therefore invalid.” Id. at 688.”

rule at National Airport, which was then operated by the FAA,

based upon the fact that section 105 by its terms did not apply

to federal agencies. Jd. at i194.

In the Metropolitan Washington Airports Act of 1986, Pub.

L. No. 99-591, §§ 6001-6012, 100 Stat. 3341, 3341-376 to 3341-

388, the FAA was authorized to lease National Airport to the

newly-formed Metropolitan Washington Airports Authority. A

central purpose of that Act was to place National Airport on

par with other major airports by giving proprietary control over

the airport to a local governmental authority. Jd. §§ 6002(4),

(5), (6), (8). Apparently recognizing the inability of the local

airport authority to continue the FAA’s perimeter rule, Congress

itself enacted the perimeter rule in section 6012 of the Act, at

the same time expanding the perimeter to 1250 miles. See also

14 C.F.R. § 93.253 (1987).

7114 C.F.R. § 399.110(f) (1987) (proprietary powers must be

exercised “‘in a manner that does not conflict with the provisions

and policies of the [Airline Deregulation] Act’’).

22 In the International Air Transportation Competition Act of

1979, Pub. L. No. 96-192, Sec. 503, 94 Stat. 35, 59-60 (1980),

Congress included the so-called ‘‘Love Field Amendment,” which

adopted a legislative compromise prohibiting flights between Love

16

Thus, the decision below sharply conflicts not only

with prior court decisions, but also with applicable

federal administrative regulations and precedent.”

III. This Court Should Grant Review to Preserve the Ex-

clusive Role of the FAA to Manage the Nation’s Air-

space.

By permitting local governments to adopt and to

enforce their own regulations of airline rates, routes,

and services, the decision below seriously hampers the

FAA’s ability to carry out its duty to promote effi-

cient use of the nation’s airspace. 49 U.S.C. app. §

1348. The FAA’s need to have broad powers unen-

cumbered by local regulations is particularly acute in

view of the remarkable success of the Airline Dere-

gulation Act. Since the Act, there are more flights,

more convenient routes and schedules, and more af-

fordable fares. This success, however, has placed a

heavy strain on our aviation system.

The FAA, as the federal agency responsible for

overseeing the use of the nation’s airspace, has taken

a variety of steps to deal with these concerns. The

FAA has limited congestion at high-traffic airports,

Field and points outside a four-state area. Significantly, the -

House Conference Report reaffirmed the general applicability of

the preemption provisions of section 105, referred to the Love

Field situation as “unique in the air transportation industry,”

and stated, ‘Acceptance of this compromise should therefore

not be taken as a harbinger of any similar proposals for any

other airport or area.”’ H.R. Conf. Rep. No. 716, 96th Cong.,

2d Sess. 26, reprinted in 1979 U.S. Code Cong. & Admin. News

78, 88.

23 These regulations and decisions have, in effect, been ratified

by Congress, since the recent statutory provision with respect

to airports in the Washington, D.C., area would not be necessary

if the Second Circuit here were correct. See n. 20, supra.

= i ell ei al ee i ee alee i ee, Oe Hy

17

including LaGuardia, by instituting a slot system un-

der which landings and takeoffs by commercial air

carriers are allocated among airlines. 14 C.F.R.

§§ 93.211-93.229 (1987). The FAA could have awarded

those slots on the basis of a perimeter rule or some

other route-based criterion, but instead determined

that slots should be awarded without regard to rates,

routes, or services. In so doing, the FAA preserved

the effects of market forces to the maximum extent

possible. At the same time, unnecessary takeoffs and

landings at intermediate points entailed by perimeter

rules were avoided.

In establishing a perimeter rule at LaGuardia, the

Port Authority has undermined these goais. As this

Court recognized in striking down the landing curfew

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

411 U.S. 624 (1973), the FAA must be allowed to

continue its exclusive control over use of the airspace

without interference from rules made by local gov-

ernments:

If we were to uphold the Burbank ordinance

and a significant number of municipalities fol-

lowed suit, it is obvious that fractionalized

control of the timing of takeoffs and landings

would severely limit the flexibility of the FAA

in controlling air traffic flow. The difficulties

of scheduling flights to avoid congestion and

the concomitant decrease in safety would be

compounded. . . . We are not at liberty to

diffuse the powers given by Congress to FAA

24 See Special Federal Aviation Regulation No. 48, 51 Fed.

Reg. 8632, 8635, 8637-38 (Mar. 12, 1986) (allocation by lottery;

slots only restricted to domestic passanger use).

18

. . . by letting the States or municipalities

in on the planning. If that change is to be

made, Congress alone must do it.

411 U.S. at 639-40. By upholding LaGuardia’s perim-

eter rule, the decision below lets the Port Authority

in on the planning and dilutes the FAA’s ability to

regulate congestion through its slot system and other

measures. As stated in City of Burbank, such dilution

of the FAA’s authority should be done only with

Congressional authorization.”

25 Congress did specifically authorize perimeter rules at Na-

tional Airport and Love Field. See nn. 20 & 22, supra. But there

is no such Congressional authorizat’on here.

19

CONCLUSION

Absent certiorari being granted, federal regulation

of the airline industry will be replaced by the regu-

lation of fifty states and countless airport authorities

and the mandate of Congress to deregulate may be

voided by the decision below. The petition for

certiorari should be granted.

Of Counsel

ERWIN N. GRISWOLD

ROBERT LAYTON

JONES, Day, REAVIS

& POGUE

1450 G Street, N.W.

Washington, D.C.

20005-2088

(202) 879-3939

WALTER BRILL

Law Department

Delta Air Lines, Inc.

1030 Delta Boulevard

Atlanta, GA 30320

(404) 765-2692

August, 1987

Respectfully submitted,

ALLYN O. KREPS

(Counsel of Record)

Louis TOUTON

ROBERT DEBERARDINE

JONES, Day, REAVIS

& POGUE

355 South Grand Avenue

Suite 3000

Los Angeles, CA

90071

(218) 625-3939

Counsel for Petitioner

ea et de

we =

APPENDIX

la

APPENDIX A

WESTERN AIR LINES, INC.,

Plaintiff,

Vv.

Port AUTHORITY OF NEW YORK AND NEW JERSEY,

Defendant,

No. 86 Civ. 6259 (JMC).

United States District court,

S.D. New York.

Sept. 3, 1986.

Roger M. Deitz, New York City, for plaintiff.

Patrick J. Flavey, New York City (Arthur P. Berg, Jay

Adlai Selcov, of Counsel), for defendant.

OPINION

CANNELLA, District Judge:

After a nonjury trial on the merits, plaintiff's claims for

preliminary and permanent injunctive relief are dismissed.

Fed. R. Civ. P. 65(aX2).

FACTS

Plaintiff Wetern Airlines [‘‘Western’’] brings this action

against defendant Port Authority of N.Y. & N.J. [‘‘Port

' Authority” or ‘‘Port’’], seeking preliminary and permanent

injunctive relief against enforcement by the Port of its so-

called perimeter rule. The undisputed facts are as follows.

Western is the holder of several slots at LaGuardia Air-

port [‘“‘LaGuardia’’]. Each slot permits Western to conduct

one landing or takeoff operation during a 30-minute period.

2a

Western obtained these slots in a lottery conducted by the

Federal Aviation Administration [‘‘FAA’’] on March 27,

1986 and will lose them unless it commences service at

LaGuardia by September 17, 1986.

Western maintains its hub in Salt Lake City. The hub

permits the airline to serve city pairs by one stop or con-

necting flights when such city pairs cannot be served eco-

nomically on a point-to-point nonstop basis. Western

intended to begin operating three daily nonstop flights in

each direction between LaGuardia and Salt Lake City on

September 3, 1986.

The Port Authority operates Kennedy International Air-

port [‘‘Kennedy’’], LaGuardia, and Newark International

Airport [‘‘Newark’’]. Since the late 1950’s, the Port has

had a perimeter rule at LaGuardia, which forbids airlines

using LaGuardia to run nonstop flights beyond a set dis-

éance. The stated purpose of the rule is to reduce ground

congestion and maintain LaGuardia as a short and medium

haul airport by diverting longer haul air traffic to Kennedy

and Newark. Of the three airports operated by the Port,

LaGuardia is the smallest with 662 acres, followed by New-

ark with 2300 acres, and Kennedy with 4930 acres. Neither

Newark nor Kennedy is subject to a perimeter restriction.

Prior to 1984, the perimeter rule at LaGuardia was an

informal one, prohibiting most international operations, and

nonstop operations in excess of 2000 miles. In 1984, the

Port Authority set in place a formal rule, which reduced

the permissible distance for nonstop operations to 1500

miles. The new rule does permit flights to Denver, al-

though Denver is more than 1600 miles from LaGuardia.

According to the Port Authority, Denver was “‘grandfath-

ered’”’ under the new rule because there had been contin-

uous nonstop service between LaGuardia and Denver since

1981 and that service accounted for a significant portion

of LaGuardia operations. At the time the rule was adopted,

three air carriers operated LaGuardia-Denver service.

3a

Salt Lake City is located almost 2000 miles from

LaGuardia. Western now serves Salt Lake City with two

daily round-trip flights at Kennedy. Because Western be-

lieves that LaGuardia serves a lucrative business market,

it has sought permission from the Port authority, in May

1985 and again in early 1986, to conduct New York-Salt

Lake City operations from LaGuardia. The Port has denied

permission on the basis of the perimeter rule.

In this action, Western alleges that the perimeter rule

violates various federal aviation statutes! and the Civil

Rights Act of 1871,? and is invalid under the Supremacy,°

Equal Protection,* Due Process,’ and Commerce® clauses

of the United States Constitution. On August 19 and Sep-

tember 2, 1986, the Court held a full hearing on the merits,

consolidating plaintiff's claims for preliminary and per-

manent injunctive relief pursuant to Fed.R.Civ.P. 65(a)\(2).

For reasons that follow, Western’s claims are dismissed.

DISCUSSION

Western’s principle contentions center on three federal

aviation statutes: Section 105(aX1) of the Deregulation Act,

49 U.S.C. § 1305(aX1) [Section 1305(aX1)’’]; the Airport

& Airway Improvement Act, 49 U.S.C. § 2210 [‘‘Section

2210’); and the Federal Aviation Act of 1958, 49 U.S.C.

§ 1349(a) [‘‘Section 1349(a)’’]. Section 1305(aX1) is a

preemption statute. It provides:

[N]o State or political subdivision thereof and no in-

terstate agency or other political agency of two or

149 U.S.C. §§ 1305(aX1), 1849(a), 2201 et seg.

*42 U.S.C. § 1983.

3U.S. Constitution, Art. VI, cl. 2.

‘U.S. Constitution, Amendment XIV.

‘Td.

‘U.S. Constitution, Art. I, Sect. 8, cl. 3.

4a

more States shall enact or enforce any law, rule, reg-

ulation, standard, or other provision having the force

and effect of law relating to rates, routes, or services

of any air carrier having authority under subchapter

IV of this chapter to provide air transportation.

Sections 2210 and 1349(a) respectively require that an air-

port proprietor receiving federal funds (1) make its facil-

ities available to the public on fair and reasonable terms

and without unjust discrimination, and (2) not grant to any

air carrier an exclusive right to use the facilities.

Western contends that the perimeter rule violates Sec-

tion 1305(aX1) and thus the Supremacy Clause because the

rule is a regulation of Western’s “routes and services.”

Western also argues that the rule impermissibly discrim-

inates against Western in violation of the Commerce Clause

and Sections 2210 and 134%a) because it permits flights

to Denver but not to Sait Lake City. Finally, Western

asserts that the rule places an undue burden on interstate

commerce.’

The Port Authority argues that Western has failed to

state a cause of action. It points to Montauk-Caribbean

Airways v. Hope, 748 F.2d 91 (2d Cir. 1986), which held

that neither Section 1305(aX1) nor 1349%a) confers a pri-

vate right of action, and implied the same for Section

2210.8 Western claims that even if it has no private action

"Western makes no argument with respect to its claims under the

Civil Rights Act or the Equal Protection & Due Process clauses and

the Court does not consider these claims. See Local Civil Rule 3b);

see also Midway Airlines v. County of Westchester, 584 F.Supp. 436,

441 n. 18 (S.D.N.Y.1984).

*The Court did not address the issue with respect to Section 2210,

but affirmed the district court’s dismissal of the claim. It also cited

favorably to Hill Aircraft & Leasing Corp. v. Fulton County, 561

F.Supp. 667, 673 (N.D.Ga. 1982), affd, 729 F.2d 1467 (11th Cir.1984).

In Hill Aircraft the court considered both Section 1349(a) and Section

1718, 49 U.S.C. § 1718, the predecessor to Section 2210. The court

en Paras

a

e BEST AVAILABLE COPY

5a

under the statutes it may still sue to invalidate the pe-

rimeter rule under the Supremacy Clause. In this respect,

Western maintains, the statutes demonstrate the preemp-

tive force of federal legislation in the area of aviation. The

Port Authority responds that such an argument merely

circumvents the rule in Montauk and, if adopted, would

render that decision meaningless.

The Court finds the Port Authority’s argument unper-

suasive and contrary to the Montauk decision itself. In

Montauk, the plaintiff sought to operate as a fixed-base

operator and air carrier on a year-round basis at an airport

owned by the Town of East Hampton. Pursuant to a lease

with the Town, the plaintiff was limited to seasonal op-

erations. Plaintiff sought to modify the lease but the town

denied its request. Plaintiff then challenged the Town’s

actions both under the federal aviation statutes at issue

here and on antitrust grounds.

The district court dismissed the complaint. On appeal,

the Second Circuit rejected the claims under the Sherman

Act. The court reasoned that N.Y.Gen.Mun.Law § 352,

which permits municipal airport operators to enter into

exclusive lease arrangements, constitutes a clearly ex-

pressed state policy authorizing municipalities to pursue

anticompetitive activity. Consequently, the court held, the

Town was immune from the antitrust challenge by virtue

of the state action doctrine.

The plaintiff then argued that Section 1305(a) preempted

state law in this area and thus there was no state au-

thorization for the anticompetitive activity. The court re-

jected this argument, but on the merits, holding that the

Town’s actions fit an exception to Section 1305(a) preemp-

tion. See 784 F.2d at 96-97. The court therefore drew a

concluded there to be no private right of action under either section.

Subsequently, the Eleventh Circuit, which had affirmed the district

court’s opinion in Hill Aircraft, squarely addressed Section 2210, and

held there to be no private right of action.

6a

distinction between a Supremacy Clause challenge and a

private right of action. See also New York Airlines v.

Dukes County, 623 F.Supp. 1435 (D.C. Mass. 1984) (dis-

tinguishing private cause of action from a Supremacy

Clause challenge).

This Court concludes that Montauk does not foreclose

Western’s Supremacy Clause challenge to the extent that

it relies on Section 1305(aX1) preemption. However, the

Court finds no support for such a challenge in Sections

1349(a) or 2210. Unlike Section 1305(aX1), which renders

void as preempted any regulation affecting ‘‘routes or ser-

vices” not contemplated by that section, Sections 1349(a)

and 2210 merely impose obligations on airport proprietors.°

Although these sections may have some relevance in dem-

onstrating the extent of federal preemption,’® Western’s

‘It is difficult to see how Section 1305(aX1) could give rise ta cause

of action when that section creates no rights or obligations.

10

The supremacy clause, U.S. Const., art VI, cl. 2, invalidates

state laws that “interfere with or are contrary to’’ federal law.

Gibbons v. Ogden, 9 Wheat 1, 211, 6 L.Ed. 23 (1824). Congress

may preempt state law by an express provision. Jones v. Rath

Packing Co. 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d

604, reh’g denied, 431 U.S. 925, 97 S.Ct. 2201, 53 L.Ed.2d 240

(1977). In addition, an intent to preempt state law may be inferred

where Congress has enacted a sufficiently comprehensive scheme

of federal regulation or where the federal interest is dominant so

as to preclude state legislation in the same area. Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 280, 67 S.Ct. 1146, 1152, 91

L.Ed. 1447 (1947); see Hines v. Davidowitz, 312 U.S. 52, 67, 61

S.Ct. 399, 404, 85 L.Ed. 581 (1941). Where Congress has not acted

to supersede completely regulation by the states, state law is nu-

lified to the extent that it conflicts with federal law. Florida Lime

& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-43, 83 S.Ct.

1210, 1216-18, 10 L.Ed.2d 248, reh’g denied, 347 U.S. 858, 88

S.Ct. 1861, 10 L.Ed.2d 1082 (1963). See generally Hillsborough

County v. Automated Medical Laboratories, Inc. 471 U.S. 707, 105

BEST AVAILABLE COPY

Ta

attempt to establish a violation of these sections amounts

to a private right of action, which is not permitted.

Turning to Western’s Supremacy Clause challenge, Sec-

tion 1305(aX1), as previously noted, establishes federal

preemption in the field of “rates, routes and services’’ of

air carriers. The Port Authority’s perimeter rule may be

fairly characterized as a regulation touching this area and

the Port advances no significant arguments to the con-

trary. The Port does argue that its perimeter rule is none-

theless valid under Section 1305(bX1), 49 U.S.C. §

1305(bX1) [Section 1305(bX1)’’], which provides:

Nothing is subsection (a) of this section shall be

construed to limit the authority of any State or po-

litical subdivision thereof or any interstate agency or

other political agency of two or more States as the

owner or operator of an airport served by any air

carrier certificated by the Board to exercise its pro-

prietary powers and rights.

The extent of “proprietary powers and rights’ has not

as yet been established. The legislative history of Section

1305(bX1) indicates that the airport proprietor would be

permitted to take those actions “presently accepted as

valid exercises of proprietary powers.’”’ 124 Cong.Rec.

18799 (remarks of Sen. Kennedy). The issue has most fre-

quently arisen in the context of noise regulations.

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

624 (1973), the Court struck down a municipal ordinance

which imposed a curfew on jet air traffic at a local airport.

The Court focused on Section 611 of the Federal Aviation

Act, 49 U.S.C. § 1431, which, as the Court put it, rep-

resents a “comprehensive scheme of federal control of the

aircraft noise problem.” Jd. at 629. The Court ruled the

S.Ct. 2371, 85 L.Ed.2d 714 (1985).

New York Airlines v. Dukes County, 623 F.Supp. 1435, 1441

(D.C.Mass. 1985).

8a

ordinance preempted due to the “pervasive nature of the

scheme of federal regulations of aircraft noise.”’ Jd. at 633.

Expressly left open, however, was the question whether

there is any limitation on an airport proprietor’s ability to

regulate noise. See id. at 636 n. 14. In this respect, the

Court noted a letter by the Secretary of Transportation,

quoted with approval in the Senate Report on Section 611,

which expressed the view that

The proposed legislation will not affect the rights

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

an airport, from issuing regulations or establishing

requirements as to the permissible level of noise which

can be created by aircraft using the airport. Airport

owners acting as proprietors can presently deny the

use of their airports to aircraft on the basis of noise

considerations so long as such exclusion is nondiscri-

minatory.

Id. at 635 (emphasis in original).

Several courts that have since considered the viability

of the proprietor exception alluded to in City of Burbank

have held such an exception to exist. See, e.g., Santa Mon-

ica Airport Ass’n v. City of Santa Monica, 659 F.2d 100,

103 (9th Cir. 1981); British Airways Bd. v. Port Authority,

558 F.2d 75, 83 (2d Cir. 1977). In British Airways Bd.,

our Court of Appeals upheld the Port Authority’s tem-

porary ban on SST flights at Kennedy Airport pending

the promulgation of reasonable regulations establishing ac-

ceptable noise levels for the airfield. The court relief on

the legislative history of Section 611, in particular the

history cited to in City of Burbank, and concluded that it

was Congress’ intent to permit proprietor regulations in

the field of noise, despite the otherwise total federal

preemption in this area.

The court also indicated limits on an airport proprietor’s

power. It said that the proper domain of the airport pro-

prietor is to establish regulations regarding “‘the permis-

9a

sible level of noise which can be created by aircraft using

the airport.” 558 F.2d at 84. In a subsequent decision,

British Airways Bd. v. Port Auth., 564 F.2d 1002 (2d Cir.

1977) (“British Airways Bd. II’, the court reiterated its

conclusion that airport proprietors have an ‘‘extremely lim-

ited role” in the system of aviation regulation 564 F.2d

at 1010.

Western seizes upon the above-quoted language and ar-

gues that noise regulation is the only recognized exception

to the otherwise total federal preemption of aviation. Al-

though the cited language is quite narrow, British Airways

Bd. and British Airways Bd. I were principally concerned

with Section 611, the noise statue, and whether Congress,

in enacting that section, intended that airport proprietors

be permitted to regulate noise. The cases do not reject

the existence of other proprietary interests, but merely

seek to insure that when such an interest exists, such as

the control of noise, the proprietor not regulate beyond

the scope of that interest.”

Section 1305(bX1) does not expressly limit proprietary

powers to the regulation of noise, although presumably

Congress would have so limited the section if that is what

it had in mind. As Judge Weinfeld said in Midway Airlines

v. County of Westchester, 584 F.Supp. 436 (S.D.N.Y. 1984),

“(t]he legislative history is unmistakably clear that Con-

gress did not intend that the preemptive force of 49 U.S.C.

§ 1305(aX1) would interfere with ‘long recognized powers

of the airport operators to deal with noise and other en-

vironmental problems at the local level.’”’ Jd. at 440 n.

18 (quoting 124 Cong. Rec. 37419 (1978) (remarks of Sen.

Kennedy)). Judge Weinfeld interpreted British Airways II

"Even in this respect the Second Circuit has recently upheld a reg-

ulation which limited the cumulative level of noise exposure at an air-

port rather than the decibel levels of individual take*offs and landings.

See Globel Int’l Airways Corp. v. Port Authority, 727 F.2d 246 (2d

Cir, 1984).

—————

" 10a

as holding that airport proprietors may issue reasonable

rules pertaining to the permissible level of noise or other

danger which can be caused by aircraft using the airport.

Id. at 441. He went on to uphold an airport proprietor’s

temporary refusal to grant airport access for a reasonable

period necessary to “develop rational and nondiscrimina-

tory rules for allocating scarce space and landing and take-

off slots.’’ Id. at 440.

In another airport capacity case, Aircraft Owners & Pil-

ots Ass’n v. Port authority, 305 F.Supp. 93 (E.D.N.Y.1969),

Judge Dooling upheld the Port Authority’s imposition of

a “‘takeoff’’ fee on certain small aircraft for the purpose

of reducing airport congestion. The court specifically noted

that the fee was imposed to divert air traffic during the

busiest periods of the day but recognized this as a legit-

imate basis for regulation.

As these cases make plain, although questions of per-

missible noise regulation predominate in the courts, other

proprietor-imposed regulations are “presently accepted as

valid exercises of proprietary powers.” A proprietor’s in-

terest in regulating ground congestion at its airports would

appear to be at the core of the proprietor’s function as

airport manager, perhaps even more so than the regulation

of noise; and the ability of a proprietor such as the Port

Authority to allocate air traffic in its three airport system

is important to the advancement of this interest.

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

1982), the court considered a 1000-mile perimeter rule im-

posed by the FAA at Washington National Airport [‘‘Na-

tional’). The FAA owns both National and Dulles

International Airport. For reasons markedly similar to

those of the Port Authority, the FAA imposed its perim-

eter restriction.

The Fifth Circuit upheld the rule. It first noted that

section 1305(aX1), which preempts state regulation, does

not restrict the powers of the FAA, an arm of the federal

eee pee 44 a wa Bek iy

lla

government. The court then proceeded to decide the case

on alternative grounds. Although holding that the FAA

had power to impose a perimeter based on its authority

under the Federal Aviation Act alone, it also held, as an

independent ground, that the FAA’s proprietary interest

was sufficient to justify the rule. The court implied that

the result might have been different had the proprietor

not been the FAA, and cited to the Second Circuit’s lan-

guage in British Airways Bd. II that airport proprietors

have an “extremely limited role” in aviation management.

Nonetheless, the court carefully -distinguished Pacific

Southwest Airlines v. County cf Orange, No. CV 81-3248

(C.D.Cal. Nov. 30, 1981), a case which held that a local

airport proprietor could not impose a 500-mile perimeter

rule, saying: “A local airport with no connection to nearby

Los Angeles International or Ontario Airports, [the pro-

prietor] could not blithely take such an action upon itself.”

Id. at 1194.

Here, as in City of Houston, there is in issue a multi-

airport system. The effect of the perimeter rule in each

case is to divert air traffic from one airport to another

within the respective systems, and not to close down met-

ropolitan area runways to all air traffic to or from points

outside the perimeter. This court sees no real distinction

between the FAA’s interest, as proprietor of an airport

system, to manage its congestion problems by use of a

perimeter rule, and the interest of the Port Authority, as

proprietor of LaGuardia, Kennedy, and Newark, to do the

same.

Of course, the FAA, acting as airport proprietor, is

likely to promulgate rules that are compatible with the

overall scheme of federal regulation. This factor undoubt-

edly played a role in the City of Houston decision. How-

ever, no aspect of federal aviation is more heavily regulated

than the field of noise and yet in this area local limitations

are permitted. The Second Circuit in British Airways Bad.

evaluated the reasons for permitting a proprietor to reg-

12a

ulate noise. It first noted that airport proprietors are liable

for compensable takings resulting from unreasonable air-

port use and therefore should have the ability to protect

themselves. 558 F.2d at 83. The court went on to say “i]t

is perhaps more important ... that the inherently local

aspect of noise control can be most effectively left to the

operator, as the unitary local authority who controls air-

port access.”’ [d—Fhis- reasoning applies with equal force

to the control of ground congestion. The court in City of

Houston recognized a legitimate proprietary function. This

Court concludes that, in the absence of conflict with FAA

regulations,’ a perimeter rule, as imposed by the Port

Authority to manage congestion in a multi-airport system,

serves an equally legitimate local need and fits comfortably

within that limited role, which Congress has reserved to

the local proprietor.

This does not end the inquiry, however, for as the Sec-

ond Circuit has instructed in British Airways Bd., 558

F.2d at 84-85, and again in British Airways Bd. II, the

airport operator is circumscribed to the issuance of rea-

sonable, nonarbitrary and nondiscriminatory rules that ad-

vance the local interest. The Court must “carefully

scrutinize all exercises of local power under this. rubric ‘to’ *:

insure that impermissible parochial considerations do not

unconstitutionally burden interstate commerce or inhibit

the accomplishment of legitimate national goals.” British

Airways Bd. II, 564 F.2d at 1011.

The Court first dispenses with Western’s claim that the

perimeter rule unreasonably discriminates against West-

ern. Western contends that permitting flights to Denver,

while not allowing nonstop flights to places such as Salt

Lake City, discriffiinates against all air carriers with hubs

'tAlthough the FAA has imposed High Density Regulations to reduce

air traffic at LaGuardia, Western points to no conflict between these

regulations and the perimeter rule. Cf. Globel Int’l Airways Corp. v.

Port Authority, 727 F.2d 246 (2d Cir.1984) (noise regulation).

13a

beyond the 1500-mile point. Western points out that its

major competitors, which operate from LaGuardia, use a

Denver hub and thus Western is unable to compete ef-

fectively with these airlines. Western does not argue that

the Denver exception was created with the purpose of

favoring certain airlines, and has offered no evidence which

would tend to show that the “grandfathering” of Denver

was in any other way improper. From Western’s point of

view, therefore, it would have been no different had the

perimeter rule been set at 1700-miles, thereby encom-

passing Denver.

As the court in City of Houston said in a somewhat

different context but in terms no less applicable here:

The accident of geography, not any deliberate dis-

crimination against the western states, underlies the

FAA’s rule. The perimeter does not discriminate

against a named state or states. It does not declare

that Texans may not fly nonstop to National. Rather,

it sets a limit of 1000 miles on nonstop flights. Some

states, e.g. Louisiana, straddle the line. Some Loui-

siana airports meet the requirement, others do not.

Just as the Rocky Mountain states possess beautiful

scenery, Texas its reservoirs of oil and natural gas,

and California its sandy beaches, so the accident of

geography places some states within 1000 miles of

National and others beyond. The perimeter rule, ..

for geographic reasons has an incidental effect on air

travel from certain states.

679 F.2d at 1198.

In truth, all regulations tend to discriminate in some

way, see, e.g., Global Int’l Airways v. Port Authority, 727

F.2d 246 (2d Cir. 1984); Aircraft Owner’s & Pilots Ass’n

v. Port Authority, 305 F.Supp. 93 (E.D.N.Y.1969). The

critical inquiry is whether that discrimination is unjust; or

to put it another way, whether the discrimination is rea-

14a

sonable in light of the legitimate objectives sought to be

achieved. ‘

On the issue of reasonableness, as previously discussed,

the Port Authority implemented the perimeter rule to re-

duce groundside congestion and maintain LaGuardia as a

short and medium haul airport, and an airport catering to

business customers. The Post believes that opening La-

Guardia to long range aircraft, and with it the leisure

traveler, would reduce runway capacity, increase delays,

result in increasing congestion at the gates, place a heavier

demand on ticketing, baggage claim facilities and public

areas, increase use of parking lot facilities and cause road-

way and terminal frontage access to become more con-

gested. In the Port’s view, the short haul or business

traveler moves more quickly through the airport with less

luggage and fewer ‘“‘meters and greeters’”’. It is for similar

reasons that the FAA imposed a perimeter at National

Airport. See City of Houston, 679 F.2d 1184.

A brief survey of the evidence shows that the Port’s

conclusions are not unfounded. In 1984 the Port authority

staff commenced an evaluation of the perimeter rule. In-

cluded in this evaluation was a study of LaGuardia’s ca-

pacity. The study concluded that at “current traffic levels —

LaGuardia Airport is operating near or above its capacity

in major components of the airport system including CTB

apron area and certain passenger processing areas, de-

parture roadway and access roadways, during peak pe-

riods. The delays and congestion which are currently being

experienced during these periods are symptomatic of this

condition.’’ Defendant Ex. D, Attachment III at 11. Sim-

ilarly, a study performed on the LaGuardia airside capacity

concluded that “[djespite the constant near-capacity utili-

zation, LaGuardia does experience hours when traffic ex-

ceeds the airport capacity by as much as 23 percent.”

Defendant Ex. D, Attachment II at 3. Another study ob-

served that LaGuardia “is fast approaching saturation in

many areas, with ground access the major constraint... .

15a

[A]dditional passenger growth can be expected.’’ See Ex.

D, Attachment I at 2.

At the hearing, Mr. George Howard, the Port author-

ity’s Assistant Director for Aviation, testified that elimi-

nation of the rule would result in an increase of 1.5 million

passengers, including a higher percentage of long haul pas-

sengers. The result would be more use of parking lot and

baggage handling facilities as well as greater congestion

at the terminal. Tr. at 91. According to the staff study,

it was anticipated that some 27 daily roundtrip flights to

Los angeles, San Francisco, Seattle, San Diego, San Juan,

Bermuda, Calgary, Nassau and St. Croix would likely be

introduced at LaGuardia if the perimeter rule were dis-

carded. See Defendant Ex. C at 10.

The Port Authority staff also circulated questionnaires

to airlines, the FAA, the Department of Transportation

and the State Department. The questionnaires sought com-

ment on four possible alternatives for the perimeter rule:

(1) retention of a 2000-mile policy; (2) imposition of a 1500-

mile rule; (3) imposition of a 1500-mile rule with continued

service to cities currently served; and (4) imposition of a

1000-mile rule. The majority of those respondiy . favored

retention of some form of perimeter restriction. See

Plaintiff Ex. 16.

The staff ultimately recommended a 1500-mile rule. Its

report notes that about 20 percent of the survey

respondents favored a 1500-mile rule with most of the

group favoring continuing service to cities currently served.

The report concluded:

After assessing the survey results and the objections

raised by respondents, staff affirms its tentative con-

clusion that the interests of the public and the airlines

are best served by the continuation of some type of

perimeter policy, particularly in view of the limited

physical facilities and other inherent limitations of

LaGuardia Airport and the larger capacities at Ken-

16a

nedy International and Newark International Air-

ports. However, in view of the concerns expressed by

the State Department and suggestions by several car-

riers and other parties for modification of the rule,

staff recommends that the current interim rule be

modified by reducing the mileage radius from 2,000

statute miles to 1,500 statute miles but allowing the

continuation of service to Denver, expand the current

policy to permit non-stop flights to such Canadian

cities as Winnipeg which already have preclearance

facilities as well as to other Canadian cities within

1,500 statute miles of LaGuardia which may acquire

preclearance facilities in the future This would exclude

Calgary which is beyond 1,500 statute miles and where

although service was recently instituted the stipula-

tion entered into by the parties gives Air Canda no

vested rights.

Defendant Ex. A at P-3.

Western contends that the rule does not achieve its

purpose and that reducing the perimeter to 1500 miles

was a purely arbitrary act.'* However, the Port Authority

conducted a careful study and review of its policy and

concluded that a 1500-mile rule was necessary to meet

increasing congestion problems. It is important to keep in

mind that at the time of the study, which reflected in-

creasing airport use, there was already in place an infor-

mal 2000-mile perimeter. Survey results indicated that the

majority of those responding favored some form of perim-

eter policy and 20 percent favored a 1500-mile rule. In

setting in place a formal rule, therefore, and in light of

‘To the extent Western argues that the Port Authority should have

created an exception for Western in light of the fact that the market

Western seeks to serve is compatible with the Port Authority’s designs

for LaGuardia, Western should seek relief pursuant to Sections 1349(a)

and 2210. In this respect Western’s remedy is with the FAA. See

MontaukjCaribbean Airways v. Hope, 784 F.2d 91 (2d Cir.1986).

17a

the prospect of ever burgeoning traffic at LaGuardia, it

was not unreasonable to impose a 1500-mile limit. This is

especially true when access to the New York area remains

unimpeded at the other area airports.

As Justice Holmes once remarked: when a legal dis-

tinction is determined, as no one doubts that it may

be, between night and day, childhood and maturity,

or any other extremes, a point has to be fixed or a

line has to be drawn, or gradually picked out by suc-

cessive decisions, to mark where the change takes

place. Looked at by itself, without regard to the ne-

cessity behind it, the line or point seems arbitrary.

It might as well, or nearly as well, be a little more

to one side or the other. But when it is seen that a

line or point there must be, and that there is no

mathematical or logical way of fixing it precisely, the

decision of the legislature must be accepted unless we

can say that it is very wide of any reasonable mark.

Louisville Gas & Electric Co. v. Coleman, 277 U.S. 32, 41,

48 S.Ct°423, 426, 72 L.Ed. 770, 775 (1928) (Holmes, J.,

dissenting), quoted in City of Houston, 679 F.2d alt 1193.

Although Western contends that there were other means

available to reduce the congestion problem, this Court will

not second guess the actions of the Port Authority as long

as they are reasonable. The Court finds them to be so in

the instant case.’

CONCLUSION

For the foregoing reasons, Western’s claims for prelim-

inary and permanent injunctive relief are dismissed.

Fed.R.Civ.P. 65(aX2). The Clerk of the Court is directed

“The Court notes Western’s objection to the introduction of

Defendant’s Exhibits B and F. Although these exhibits were received

for nonhearsay purposes, the Court did not rely on them in any event.

18a

to enter judgment for the defendant and dismiss the com-

plaint.

SO ORDERED.

19a

Appendix B

WESTERN AIR LINES, INC.,

Plaintiff-A ppellant,

Vv.

Port AUTHORITY OF NEW YORK

AND NEW JERSEY,

Defendant-Appellee,

No. 829, Docket 86-7859.

United States Court of Appeals,

Second Circuit

Argued Feb. 19, 1987

Decided April 22, 1987.

Allyn O. Kreps, Los Angeles, Cal. (Jones, Day, Reavis

& Pogue, William T. Drescher, Robert DeBerardine, Robert

Layton, Thomas L. Abrams, Jones, Day, Reavis & Pogue,

New York City, of counsel), for plaintiff-appellant.

Arthur P. Berg, Atty., The Port Authority of New York

and New Jersey, for defendant-appellee.

Before FEINBERG, Chief Judge, TIMBERS and

PRATT, Circuit Judges.

FEINBERG, Chief Judge:

Western Air Lines, Inc. (Western) appeals from a judg-

ment of the United States District Court for the Southern

District of New York, after a bench trial before John M.

Cannella, J., that dismissed its complaint seeking an in-

junction.—F.Supp.—(S.D.N.Y.1986). Western argues that a

“perimeter rule,” promulgated by the Port Authority of

New York and New Jersey (the Authority), is preempted

by a provision of the Airline Deregulation Act, 49 U.S.C.

20a

§ 1305(aX1) and violates the substantive provisions of two

other aviation statutes, 49 U.S.C. §§ 1349(a) and 2210(a).

Western also appeals from the dismissal of its claims for

enforcement of the aviation statutes under 42 U.S.C. §

1983. Substantially for the reasons stated by the district

court, we affirm the dismissal of the complaint.

Background

The Authority owns and operates LaGuardia, Kennedy

International and Newark International Airports. In order

to reduce ground congestion at LaGuardia, by far the

smallest of the three airports, the Authority uses a perim-

eter rule. The current rule prohibits, with certain excep-

tions, non-stop flights to or from LaGuardia in excess of

1500 miles. The Authority believes that business travelers

create considerably less airport congestion than vacation-

ers and uses the perimeter rule to encourage the use of

LaGuardia by business people, who often make relatively

short trips, and the use of Newark and Kennedy for va-

cation flights.

The Federal Aviation Administration (the FAA) limits

flights to and from LaGuardia through the use of ‘“‘slots,”’

each of which authorizes one landing or takeoff by the

holder during a thirty-minute period. Western obtained

several slots at LaGuardia as a result of a lottery con-

ducted by the FAA. Western sought to use these slots for

three daily non-stop flights in each direction between

LaGuardia and Salt Lake City, where Western has a

“hub.” A hub is an airport used by an airline as the central

point of its connecting flights. Airlines use hubs to connect

two cities that cannot be served economically by non-stop

flights. On the basis of its perimeter rule, however, the

Authority refused Western permission to conduct La-

Guardia-Salt Lake City operations, since Salt Lake City is

more than 1,500 miles from LaGuardia.

In the district court, Western’s effort to enjoin the pe-

rimeter rule centered on three federal aviation statutes:

2la

49 U.S.C. § 1305, which limits local authority to regulate

airlines’ “rates, routes of services.’’! 49 U.S.C. § 2210(a),

which requires an airport proprietor receiving federal funds

to make its facilities available on a reasonable and non-

discriminatory basis,? and 49 U.S.C. § 134%a), which pro-

‘49 U.S.C. § 1305 provides in relevant part:

(a) Preemption

(i) Except as provided in paragraph (2) of this subsection, no

State or political subdivision thereof and no interstate agency or

other political agency of two or more States shall enact or enforce

any law, rule, regulation, standard, or other provision having the

force and effect of law relating to rates, routes, or services of

any air carrier having authority under subchapter IV of this chap-

ter to provide air transportation.

(b) Proprietary powers and rights

(1) Nothing in subsection (a) of this section shall be construed

to limit the authority of any State or political subdivision thereof

or any State or political subdivision thereof or any interstate agency

or other political agency of two or more States as the owner or

operator of an airport served by any air carrier certificated by _

the Board to exercise its proprietary powers and rights.

249 U.S.C. § 2210 provides, in relevant part:

(a) Sponsorship

As a condition precedent to approval of an airport development

project contained in a project grant application submitted under

this chapter, the Secretary shall receive assurances, in writing,

satisfactory to the Secretary, that—

(1) the airport to which the project relates will be available for

public use on fair and reasonable terms and without unjust dis-

crimination, including the requirement that (A) each air carrier

using such airport (whether as a tenant, nontenant, or subtenant

of another air carrier tenant) shall be subject to such nondiscri-

minatory and substantially comparable rates, fees, rentals, and

other charges and such nondiscriminatory and substantially com-

parable rules, regulations, and conditions as are applicable to all

such air carriers which make similar use of such airport and which

utilize similar facilities, subject to reasonable classifications such

as tenants or nontenants, and combined passenger and cargo flights

or all cargo flights,and such classification or status as tenant shall

22a

hibits such proprietors from granting exclusive access to

any airline.* Western claimed that there is an implied pri-

vate right of action under each statute; Western also relied

on 42 U.S.C. § 1983. Western also claimed that under the

not be unreasonably withheld by any airport provided an air carrier

assumes obligations substantially similar to those already imposed

on tenant air carriers, and (B) each fixed-based operator at any

airport shall be subject to the same rates, fees, rentals, and other

charges as are uniformly applicable to all other fixed-based op-

erators making the same or similar uses of such airport utilizing

the same or similar facilities, and (C) each air carrier using such

airport shal] have the right to service itself or to use any fixed-

base operator that is authorized by the airport or permitted by

the airport to serve any air carrier at such airport.

*49 U.S.C. § 1349 provides, in relevant part:

(a) No Federal funds, other than those expended under this

chapter,shall be expended, other than for military purposes (whether

or not in cooperation with State or other local governmental! agen-

cies), for the acquisition, establishment, construction, alteration,

repair, maintenance, or operation of any landing area, or for the

acquisition, establishment, construction, maintenance, or operation

of air navigation facilities thereon, except upon written recom-

mendation and certification by the Secretary of Transportation that

such landing area or facility is reasonably necessary for use in air

commerce or in the interests of national defense. Any interested

person may apply to the Secretary of Transportation, under reg-

ulations prescribed by him, for such recommendation and certifi-

cation with respect to any landing area or air navigation facility

proposed to be established, constructed, altered, repaired, main-

tained, or operated by, or in the interests of, such person. There

shall be no exclusive right for the use of any landing area or air

navigation facility upon which Federal funds have been expended.

For purposes of the proceeding sentence, the providing of services

at an airport by a single fixed-based operator shal] not be construed

as an exclusive right if it would be unreasonably costly, burden-

some, or impractical for more than one fixed-based operator to

provide such services, and if allowing more than one fixed-based

operator to provide such services would require the reduction of

space leased pursuant to an existing agreement between such sin-

gle fixed-based operator and such airport.

23a

Supremacy Clause, the perimeter rule was preempted by

section 1305(a\1).

The district court, relying on our holding in Montauk-

Caribbean Airways, Inc. v. Hope, 784 F.2d 91 (2d Cir.),

cert. denied, —— U.S. ——, 107 S.Ct. 248, 98 L.Ed.2d

172 (1986), ruled that the statutes relied on by Western

do not provide a private right of action. In addition, the

court dismissed Western’s claims under section 1983 for

lack of prosecution. The district court did find that West-

ern could assert its preemption claim based on the Su-

premacy Clause. On the merits, however, it found that the

Authority’s perimeter rule was not preempted by section

1305.

Discussion

In Montauk-Caribbean, we held that there are no implied

private rights of action to enforce sections 134%a) and

1305(a). 784 F.2d at 97-98. We are, of course, bound by

that decision, fairly construed. The district court correctly

recognized that our analysis in Montauk-Caribbean applies

equally to a suit claiming an implied right of action to

enforce section 2210(a).‘ See also Interface Group, Inc. v.

Massachusetts Port Authority, 816 F.2d 9, 14-16 (lst

Cir.1987); Arrow Airways, Inc. v. Dade County, 749 F.2d

1489, 1490-91 (11th Cir.1985). We also held in Montauk-

Caribbean that sections 1305(a) and 1349(a) cannot be en-

forced through section 1983. 784 F.2d at 98. That holding

would require dismissal of Western’s section 1983 claims

with respect to sections 1305(a) and 1349(a) in this case.

We need not decide, however, whether there is a persu-

‘Indeed, the district court decision in Montauk-Caribbean, which this

court affirmed, concluded that section 2210(a) does not provide a private

right of action. See Montauk-Caribbean Airways, Inc. v. Hope, No. 85-

CV-420, slip op. at 10—11 (E.D.N.Y.Sept. 4, 1985), aff'd, 784 F.2d 91

(2d Cir.), cert, denied, —— U.S. ——, 107 S.Ct. 248, 93 L.Ed.2d 172

(1986).

24a

asive basis for reaching a different conclusion with respect

to section 2210(a), see New York Airlines, Inc. v. Dukes

County, 623 F.Supp. 1435 at 1448-48 (D.Mass.1985), be-

cause Judge Cannella did not abuse his discretion in hold-

ing that Western did not press its section 1983 claims in

the district court.

Despite the lack of a private right of action to enforce

the statutes, the district court held that Western could

bring a Supremacy Clause challenge to the perimeter rule

by claiming that the rule is preempted by section 1305(a\1).

The Authority argues that the absence of a private right

to enforce section 1305(aX1) requires dismissal of West-

ern’s Supremacy Clause claim. The Authority argues that

Montauk-Caribbean settles the issue because the preemp-

tion claim based directly on section 1305(aX1) that the

Montauk-Caribbean court refused to recognize implicitly

relied on the Supremacy Clause. The Authority also argues

that as a general matter, the Supremacy Clause by itself

cannot create a right of action. Although we recognize the

potential anomaly of rejecting a private right of action to

enforce a statute while allowing a claim under the Su-

premacy Clause that the statute preempts a local regu-

lation, we find that Western properly brought its

Supremacy Clause claim.

As a preliminary matter, we note that whether the Su-

premacy Clause will support a suit claiming that section

1305(aX1) preempts a local regulation was not ruled upon

in Montauk-Caribbean. The plaintiff in that case made no

claims directly under the Supremacy Clause.’ Our holding

that a private party has no implied right of action to

enforce the substantive provisions of section 1305(aX1) did

not decide whether a private party can allege that a local

‘Indeed, plaintiff's petition for rehearing conceded that its prior ar-

gument “may not have adequately emphasized ... the Supremacy

Clause.”

25a

regulation is preempted by section 1305(aX1) on Suprem-

acy Clause grounds.

A claim under the Supremacy Clause that a federal law

preempts a state regulation is distinct from a claim for

enforcement of that federal law. “‘The primary function of

the Supremacy clause is to define the relationship between

state and federal law. It is essentially a power conferring

provision, one that allocates authority between the national

and state governments. .. .”” White Mountain Apache Tribe

v. Williams, 810 F.2d 844, 848 (9th Cir.1987). A claim

under the Supremacy Clause simply asserts that a federal

statute has taken away local authority to regulate a certain

activity. In contrast, an implied private right of action is

a means of enforcing the substantive provisions of a fed-

eral law. It provides remedies, frequently including dam-

ages, for violations of federal law by a government entity

or by a private party. The mere coincidence that the fed-

eral law in question in this case contains its own preemp-

tion language does not affect this distinction.

For example, in Rollins Environmental Services (FS),

Inc. v. Parish of St. James, 775 F.2d 627 (5th Cir.1985),

plaintiff's Supremacy Clause claim was based on a pro-

vision of the toxic Substance Control Act, 15 U.S.C. §§

2601-2629, that like section 1305(aX1), explicitly preempts

certain state regulation. See 15 U.S.C. § 2617. Even though

the section of the Act providing private rights of action

did not provide for suit for violation of the preemption

section, see 15 U.S.C. § 2619, the court, relying on the

Supremacy Clause, considered the effect of the preemption

provision. See Rollins, 775 F.2d at 631, 632-37. Similarly,

in New York Airlines Inc. v. Dukes County, 623 F.Supp.

at 1441-48, 1450 n. 18, the court held that section

1305(aX1) provides a basis for a Supremacy Clause chal-

lenge to an airport regulation, but that it does not provide

a private right of action.

26a

In arguing that the Supremacy Clause does not provide

a cause of action, the Authority mistakenly relies on White

Mountain Apache Tribe v. Williams, 798 F.2d 1205 (9th

Cir.1986), cert. denied, -—— U.S. ——, 107 S.Ct. 940, 93

L.Ed.2d 990 (1987).® In that case, the court distinguished

actions for an injunction based on the Supremacy Clause

from private rights-of-action to enforce the Supremacy

Clause under section 1983:

The question whether the Supremacy Clause

(U.S.Const. art. VI cl. 2) may be used as a sword in

bringing a § 1983 action is, of course, different from

that decide [in the affirmative] by the Supreme Court

in [White Mountain Apache Tribe v. Bracker, 448 U.S.

136, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980)]—whether

the Supremacy Clause may be invoked as a shield

against the imposition of state taxes on . . . operations

heavily regulated by the federal government.

810 F.2d at 847. The court held that although the Su-

premacy Clause can be used to enjoin enforcement of a

state statute that runs afoul of a federal legislative scheme,

it does not provide a basis for a claim under section 1983.

Thus, White Mountain highlights the distinction between

a Supremacy Clause claim and other private rights of ac-

tion. See also Citizens for an Orderly Energy Policy, Inc.

v. County of Suffolk, 604 F.Supp. 1084, 1089-91

(S.D.N.Y.1985), aff'd, 813 F.2d 570 92d Cir.1987) (per cur-

iam). Indeed, many courts have considered Supremacy

Clause challenges to local airport regulations without de-

termining whether there was a private right of action from

another source. See, e.g., City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 86 L.Ed.2d

547 (1973); Pirolo v. City of Clearwater, 711 F.2d 1006

‘The Ninth Circuit withdrew this version of its opinion and replaced

it with an amended opinion, White Mountain Apache Tribe v. Williams,

810 F.2d 844 (9th Cir.1987). The portions of the Ninth Circuit's opinion

relevant to this appeal, however, were substantially unchanged.

27a

(11th Cir.1983). Accordingly, the district court was correct

in examining Western’s Supremacy Clause claim.

Turning to the merits, we affirm on the basis of Judge

Camella’s well-reasoned opinion, to which we refer the

reader, holding that the Authority’s perimeter rule is not

preempted by section 1305. Although, as Judge Cannella

recognized, the perimeter rule may be a regulation “re-

lating to ... routes” within the meaning of section

1305(aX1), we agree with his conclusion that the rule, at

least when enacted by a multi-airport proprietor such as

the Authority, falls within the proprietary powers of air-

port operators exempted from preemption by section

1305(bX1). Cf. City of Houston v. FAA, 679 F.2d 1184,

1196 (5th Cir.1982).

Western’s other contentions require little discussion. In

its reply brief on appeal Western argues, apparently for

the first time, that the FAA, by granting slots, has

preempted any regulation of those slots by the Authority.

The statute, however, authorizes the Authority to regulate

those slots in accordance with its proprietary powers. Since

the district judge did not err in finding that the perimeter

rule is within those proprietary powers, Western’s con-

tention fails. Western’s remaining claims, that it was im-

properly denied an opportunity to cross-examine the

Authority’s witness at trial and that it is entitled to a

new trial because the district court made inadequate find-

ings of fact and conclusions of law, are without merit.

Accordingly, the judgment of the district court is af-

firmed.

28a

APPENDIX C

UNITED STATES COURT OF APPEALS

- SECOND CIRCUIT

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse, in the City of New York, on the 28th day of.

May one thousand nine hundred and eighty-seven.

WESTERN AIR LINES, INC.,

Plaintiff-Appellant,

V

Port AUTHORITY OF NEW YorRK and NEW JERSEY,

Defendant-Appellee.

Docket No. 86-7859

A petition for rehearing containing a suggestion that

the action be reheared in banc having been filed herein

by counsel for the Appellant WESTERN AIR LINES INC.,

Upon consideration by the panel that heard the appeal,

it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in

bane has been transmitted to the judges of the court in

regular active service and to any other judge that heard

the appeal and that no such judge has requested that a

vote be taken thereon.

/s/ELAINE B. GOLDSMITH

ELAINE B. GOLDSMITH

Clerk

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