Petition for Writ of Certiorari — Town of Hempstead v. American Airlines, Inc.

(TPREMB COURT, Ih &

OCT | | 1988

Supreme Cont of the Wnited

OCTOBER TERM, 1968

No 63°27-~

TOWN OF HEMPSTEAD, PALMER D. FARRINGTON, as Pre- ;

siding Supervisor of the Town of Hempstead, RALPH G. CASO, as ;

Supervisor of the Town of Hempstead, JOHN H. BENOIT, EASA

EASA, JAMES F. NIEHOFF, and GEORGE A. MURPHY, as

Councilmen of the Town of Hempstead, and JOHN A. MORHOUS, !

as Town Attorney of the Town of Hempstead, ‘

Petitioners, :

against

AMERICAN AIRLINES, INC., BRANIFF AIRWAYS, INC.,

DELTA AIR LINES, INC., EASTERN AIR LINES, INC., NA- ‘

TIONAL AIRLINES, INC., NORTHWEST AIRLINES, INC., E

PAN AMERICAN WORLD AIRWAYS, INC., TRANS WORLD

AIRLINES, INC., and UNITED AIR LINES, INC.,

THE PORT OF NEW YORK AUTHORITY, and CHARLES H.

RUBY, as President of the Air Line Pilots Association, International

and as Representative of that class of persons hereinafter mentioned,

AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, an uz-

incorporated association, on behalf of the Association and on behalf

of that class of persons hereinafter mentioned, and HARRY F.

CLARK, THOMAS M. BARTLEY, JR., and RUSSELL G. DER-

ICKSON, individually and on behalf of the class of persons herein-

Bi pavis, ciers

ROSE AB ATE og = RINNE

o

t

after mentioned,

THE ADMINISTRATOR OF THE FEDERAL AVIATION

AGENCY, :

Respondents.

— iaieeemenimsiage <a

P-L D a

PETITION FOR A WRIT OF CERTIORARi TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

|

Howarp E. LEviTT

Attorney for Petitioners

Town Hall

Hempstead, New York

il seneeeeeniemienieentel

=

INDEX

PAGE

Citations to Opinions Below ...............000 2

GORI, vcs secvecscasssvnsccevccsnceses 2

SE SEO a Kd dc eRedcecvetecuesvacseas 2

Constitutional and Statutory Provisivus ........ 2

Statement .........ccceceeeeeeeeeeeeeeseeeeues 2-4

Reasons FOR GRANTING THE WRIT ...........6.. 4-8

(a.) The issues raised on this appeal present

the first judiciel test of a local noise

ordinance regulating noise emanating from

ee ee elles caspian eri enes én 4-6

(b.) In this case a conflict exists between deci-

sions of state and federal courts ......... 6-7

(c.) The issues involved are of national impor-

_ aeeeee PIE TEETER ETOCS TT OTT 7

(d.) A novel question is presented necessitating

the interpretation of a federal statute .... 7-8

ee ee aes waes e*ereesveeeeeeeee s

APPENDIX:

Opinion of the United States Court of Appeals la-l5a

Opinion of the United States District Court,

ES TPs. va wevccvedisuesesenseceveus’ 16a-35a

Constitutional and Statutory Provisions ...... 35a-4la

Judgment of the United States Court of Appeals 42a

ii

Table of Cases

Allegheny Airlines v. Village of Cedarhurst, 238 F

i Pe rere pr eerrere ye ee eer er er ere

American Airlines, Inc. v. City of Audubon Park—

not officially reported—W.D. av .. No. 5828, April

Be SAVAGE REEL ELAN s REWS eee eRe Reena Seeeee

Estep v. United States, 327 U.S. 114, 66 S.Ct. 423 ..

Francis v. Southern Pacific, 333 U.S. 445, 68 S.Ct.

BE Seu CED AITAT ESTA ACOs RUE Rua ew Lb eRe oeNKees

Loma Portal Civic Club v. American Airlines, Ine.,

39 Cal. Rptr. 708, 394 P. 2d 548 .......... cc eee

Mays Department Stores v. NLRB, 326 U.S. 376, 66

Cen Tee TTT TT eee CTT Tee

Poff v. Pennsylvania R.R., 327 U.S. 399, 66 S.Ct. 603

Transcontinental & Western Airline, Inc. v. Civil

Aeronautics Board, 336 U.S. 601, 69 S.Ct. 756 ..

PAGE

IN THE

Suprene Court of the Untied States

OCTOBER TERM, 1968

a Serene re

Town or Hempsteap, Paumer D. Farrineton, as Presiding

Supervisor of the Town of Hempstead, Raupx G. Caso, as

Supervisor of the Town of Hempstead, Jonn H. Benort,

asa Easa, James F. Nrienorr, and Grorcr A. Murpry, as

Councilmen of the Town of Hempstead, and Joun A. Mor-

Hous, as Town Attorney of the Town of Hempstead, ~

Petitioners,

against

American Aruines, Inc., Branirr Artrways, Inc., Dera

Arr Lines, Inc., Eastern Are Lines, Inc., NationaL Atre

LINES, Inc., NortHwest Arruines, Inc., Pan AMERICAN

Wortp Airways, Inc., Trans Worutp Arriinges, Inc., and

Unirep Arr Lings, Inc.,

Tue Port or New York Avutuority, and Cuarzes H. Rusy,

as President of the Air Line Pilots Association, Interna-

tional and as Representative of that class of persons herein-

after mentioned, Atk Line Pivots Association, INTERNA-

TIONAL, an unincorporated association, on behalf ef the

Association and on behalf of that class of persons herein-

aftermentioned, and Harry F’. Cuarx, THomas M. Bartiey,

Jr., and Russet G. Derickson, individually and on behalf

of the class of persons hereinafter mentioned,

THE ADMINISTRATOR OF THE FEpERAL AVIATION AGENCY,

Respondents.

tf.

—— ae

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner, Town of Hempstead, prays that a writ of

certiorari issue tu review the judgment of the United States

Court of Appeals for the Second Circuit, entered in the

above-entitlec. case on July 17, 1968.

N

RRA CHART WRN RR A

Citations to Opinions Below

The Opinion of the United States Court of Appeals,

printed in the Appendix hereto, infra page la, is not offi-

cially reperted.

The opinion of the United States District Court for the

Eastern District of New York, printed in the Appendix

hereto, infra page 16a, is reported in 272 F. Supp. 226.

Jurisdiction

The jurisdiction of Your Honorable Court is invoked

under 28 U.S.C. 1254(1).

- Questions Involved

1, Whether the field within which the Town’s Ordinance _

operates has been preempted by the federal government so

as to prevent state and local municipalities from acting.

2. Whether the Town’s Ordinance causes an undue bur-

den on interstate commerce.

3. Whether the Town’s Ordinance is in direct conflict

with valid applicable regulations enacted by the federal

government.

Constitutional and Statutory Provisions

The case involves provisions of the Federal Aviation

Act of 1958, as amended 49 U.S.C. $1301 et seq., the relevant

provisions of which are set forth in the Appendix hereto,

infra page 35a.

Statement

Jurisdiction of the District Court was invoked under an

act of Congress regulating commerce pursuant to Title 28

A a ay pee <a BH OS Rw ay are

U.S.C., Section 1337, and under the Constitution, Laws and

Treaties of the United States, which the Court had jurisdic-

tion pursuant to Title 28 U.S.C., Section 1331.

Petitioner, hereinafter referred to as the Town, is the

largest town in the State of New York, with an estimated

population in 1963, of nearly 806,000. Lying to the east of

John F. Kennedy International Airport (JFK), the Town

is primarily residential, with approximately 150,090 people

living within three miles of the Airport. In 1963, about

seventy-seven percent of all flights landing or taking off at

Kennedy involved some flight over the Town. These flights

varied it. height—on landings, as low as 200 to 275 feet;

and on take-offs, at altitudes as low as 400 and 600 feet.

The people surrounding the Airport, as well as many

others across the nation, have suffered from the severe

noise caused by aircraft. In an attempt to eliminate thie

problem, the Town, in 1963, (as amended on March 10,

1964), added Article II to its ‘‘Unnecessary Noise Ordi-

nance,’’ forbidding anyone from operating a mechanism or

device (including airplanes) which creates a noise within

the Town exceeding either of ‘‘two limiting noise epectra.’’

Nine major American-flag air carriers, the Port of New

York Authority and the Air Line Pilots Association,

brought suit claiming the Ordinance would prohibit air-

planes using JFK from flying over the Town, thus restrict-

ing landing and take-off patterns normally adhered to by

those airplanes. The Administrator of the Federal Aviation

Agency intervened in the proceedings, also seeking a dec-

laration that the Ordinance was unconstitutional.

Extensive hearings were conducted in the District Court —

which resulted in a decision accompanied by lengthy find-

ings of fact. The District Court found the Ordinance un-

constitutional because:

(a) it operates in a field which the rational government

has exciucive power to regulate under the commerce clause;

4

(b) it unduly burdens interstate and foreign commerce;

(c) it is in direct conflict with applicable and valid regu-

lations of the national government.

The Court below affirmed the District Court. dine

its decision is based solely on the conclusion that the Ordi-

nance was in direct confiict with applicable and valid regu-

lations of the national government. The Court commented

that it was unnecessary to reach a determination regarding

preemption and undue burden on interstate commerce.

Reasons for Granting the Writ

(a.) The issues raised on this appeal present the

first judicial test of a local noise ordinance regulating

noise emanating from aircraft.

The importance of the case lies not only in the factual

and legal questions presented, but involves the entire rela-

tionship of federal-local governmental interests. It con-

cerns the problem of whether a Federal Agency or local

municipality should prescribe a cure for the ills facing its

residents, when these ills continue and spread under the

protective covering of an allegedly overriding national in-

terest.

The national interest claimed to exist in this case is not

grounded in the Federal Aviation Act of 1958, as one might

expect, but rather in the directives and regulations of the

Federai Aviation Administrator. The Court below deter-

mined that in order for aircraft to comply with the Ordi-

nance, they would have to attain altitudes much higher

than those set by the F‘AA for safe landings and take-offs.

These regulations of the FAA are no more than ad hoc

directives and certainly are not imbued with national in-

terest. In fact, the runway locations at each airpo:t are

established on wind conditions at that particular location.

Hence, these ad hoc directives must vary from airport to

5

airport, depending on the peculiar situation existing at that

sirport. The Town offered proof showing that its Ordi-

nance could be complied with by a plan which is a logical

extension of existing procedures. This plan would not

affect the traffic capacity at the Airport, but would retain

the safety factors now existing. The Courts below, how-

ever, while acknowledging the ‘‘ingenuity’’ of the plan,

dismissed it as being irrelevant.

In finding the plan irrelevant, the District Court deter-

mined that the entir. field of aircraft flight had been pre-

empted by the federal government. The reality of pre-

emption means that no local government can legislate in the

same field occupied by the federal government. Once the

District Court determined preemption existed, the remain-

ing conclusions were logical extensions thereof, including

the finding that our plan was irrelevant. However, the

District Court’s ruling of preemption was erroneous (see

Point (b.), «wnfra). The Circuit Court avoided answering

this isswe and, instead, rested its opinion on the fact that

the Ordimance was im direct conflict with existing valid fed-

eral regulations. The District Court’s decision, as pointed

eut earlier, was based on three grounds; to wit, preemption,

confhict, and undue burden on interstate commerce.

The Cirenit Court commented that a finding based on

any one of these grounds would be sufficient te declare the

Ordinance unconstitutional. Without conceding the valid-

ity of this statement, the fact is that a holding on any one

of the grounds, other than preemption, would not permit

our plan to be summarily dismissed as being irrelevant.

It is only when the field is preempted that the Town is

powerless to act. Assuming arguendo, the field of aircraft

aviation is not preempted, the Town should be permitted to

play a role, no matter how small, in the operation of an

airport which has such a great effect on its residents. In

essence, the Town argues that the Airport is improperly

operated and its continued improper operation is being

condaned under some alleged federal interest.

The Town’s plan was developed from evidence and ex-

hibits introduced by the plaintiffs (respondents). The evi-

dence and exhibits show that the Airport can be conducted

differently from its present operation, while continuing to

xecommodate the large amounts of traffic now using JFK.

The plan would also permit aircraft to avoid the Town and

equally populous areas. We submit that such an important

plan cannot be labeled ‘‘irrelevant.’’ At the very least,

the Town should be permitted the right, at a full trial, to

explore its plan in order to prove its feasivility. This right

should be permitted within the proper lvgal framework

and not pre.iuded by the erroneous determination of pre-

emption as found by the District Court, which error was

not cured by the decision of the Circuit Court.

The issues in this case involve the entire relationship of

federal-local governments, and should be resolved by this

Court.

(b.) In this case a conflict exists between decisions

of state and federal courts.

The District Court determined that the field in which the

Ordinance operates was preempted by federal legislation.

As noted above, the Court of Appeals did not make a

decision on this question. However, this determination is

erroneous because neither the Federal Aviation Act nor

any other federal legislation contains noise criteria. In

fact, the Supreme Court of California, in the case of Loma

Portal Cwic Club v. American Airlines, Inc., 39 Cal. Rptr.

708, 394 P. 2d 548, determined that regulation of aviation

had not been preempted by federal regulations. The Court

there stated, at page 554:

‘“We note that noise abatement is a Federal as well

as state aim. ...’’

Thus, we have conflicting decisions of a state court and the

Courts below in the interpretation of a federal statute.

7

This Court will entertain an appeal where decisions of

state courts conflict with those of federal courts. (Francts

v. Southern Pacific, 333 U.S. 445, 68 S.Ct. 611).

The problem is further complicated by the Second Cir-

cuit’s decision in this case, where the Court refused to an-

swer the question of preemption. The decision, however,

noted that, in an earlier case, t.e., Allegheny Airlimes v. Vil-

lage of Cedarhurst, 238 F 2d 812 (2 Cir 1956), the Court

held that the entire fieid of regulation of aircraft flight has

been preempted by the federal government. We submit

that a conflict exists requiring a determination by this

Court.

(c.) The issues involved are of national importance.

This case is also important because there are many com-

munities throughout the United States, adjoining major

airports, that are awaiting a final adjudication of the

Town’s Ordinance.

If the Ordinance were to be sustained, one could almost

certainly expect similar type ordinances being enacted by

these communities. In fact, many communities have al-

ready attempted to eliminate the horrendous disturbance

caused by aircraft. We have already alluded to the Cedar-

hurst case. In another case (American Airlines, Inc. v.

City of Audubon Park, No. 5828 W. D. Ky., April 1, 1968),

a local minimum altitude ordinance was declared invalid

following the decision by Judge Dooling in the case at bar.

We are informed that litigation involving aircraft noise

ordinances or minimum altitude ordinances has, by agree-

ment, been stayed pending ultimate decision on the Town’s

Ordinance. Hence, this case is not only of local importance

but is of public importance in the national sense of the term.

Due to the importance of this case, we respectfully request

this Court to grant certiorari.

8

(d.) A novel question is presented necessitating

interpretation of the federal statute.

Inherent in the decisions of the lower courts is an in-

terpretation of a federal statute, ie., the Federal Aviation

Act ef 1958.

A question arises as to whether this federal legislation

is dependent upon local laws for measurement of its terms

or is intended to operate uniformly throughout the nation.

We have already touched upon this argument in Point (a.)

above, but the question is in no way to be restricted to noise

abatement. There are many other problems facing local

communities surrounding airports, this case being the first

real test of the relationships between the two.

This Court has generally granted certiorari where the

construction of a federal statute is at issue. Appeals have

been entertained in connection with the National Labor

Relations Act, the Selective Service Act, the Federal Em-

ployees’ Liability Act, the Civil Aeronautics Act, and still

many others that need not be enumerated (Mays Depart-

ment Stores v. NLRB, 326 US 376, 66 SCt. 203; Estep v.

United States, 327 US 114, 66 SCt. 423; Poff v. Pennsyl-

vania RR., 327 US 299, 66 SCt. 603; Transcontinental &

Western Airline Inc. v. Civil Aeronautics Board, 336 US

601, 69 SCt. 756). We submit that a novel and important

case is presented, requiring this Court to construe the

Kederal Aviation Act of 1958.

CONCLUSION

For the foregoing reasons, it is respectfully submit-

ted that the Petition for Certiorari to the United States

Court of Appeals, Second Circuit, should be granted.

Respectfully submitted,

Howagp E. Levirr

Attorney for Petitioners

(APPENDIX)

Opinion of the United States Court of Appeals

Sairu, Circuit Judge:

The Town of Hempstead appeals under 28 U. S. C.

§ 1292(a)(1) from an order of the District Court for the

Eastern District of New York, John F. Dooling, Jr., Judge,

granting a preliminary injunction against enforcement of

its Unnecessary Noise Ordinance (No. 25), Article II, as

amended March 10, 1964, so far as it applies to aircraft

using Jehn F. Kennedy International Airport. Judge

Dovling’s opinion appears at 272 F. Supp. 226.

Since the District Court’s complete and precise findings

of fact (see appellant’s appendix, pp. 200a-264a) as to a

great number of technical matters are not being attacked

on this appeal, a short statement of the facts may suffice.

The Town of Hempstead, primarily residential, is the

largest town in New York State, with an estimated popu-

lation in 1963 of nearly 806,000. It lies to the east of John

F’. Kennedy International Airport (‘‘JFK’’), and it is esti-

mated that 150,000 people live in its incorporated villages

which lie within three miles of the Airport. These people

share with many others, inside and outside Hempstead and

across the country, a severe aircraft noise problem which

has developed in the years since the Second World War.

As the District Court said:

In the years since 1948 .. . turbo and fan jet air-

craft have all but displaced turbo and piston driven

propeller craft. Larger, heavier and faster than pro-

peller craft, the jets have demanded lengthened run-

ways, and exacted new constants of air traffic man-

agement ... [T]he inverted truncated cone of air

space resting on the airport, that can be thought of

as representing the zone marked by the jets’ landing

glide slopes of about three degrees, was far nearer

the edges of airport and closer down on the bordering

communities. It was as if every existing propeller

craft runway had been suddenly moved out toward

2a

Opinion of the United States Court of Appeals

the boundary of the airport ... [T]he impact on the

surrounding communities was marked and unhappy.

272 F. Supp. at 228-29.

Because of the frequency with which jets fly in and out

of JFK, the problem in Hempstead may be somewhat worse

than in other communities. The District Court found that:

There is credible evidence that the noise of an

sircraft overflight in Hempstead is frequently in-

tense enough to interrupt sleep, conversation and the

conduct of religious services, and to submerge for

the duration of the maximum noise part of the over-

flight the sound of radio, phonograph and television.

(Finding #127)

There is credible evidence that the noise of an

aircraft overflight in Hempstead is frequently in-

tense enough to interrupt classroom activities in

schools and to be a source of discomfort to the ill and

distraction to the well. (Finding #128)

It is a fair inference from the affidavits, the dem-

onstration [in the courtroom] of the sound levels

recorded in the Town and the evidence of frequency

of overflights that airplane noise is a factor of mo-

ment affecting the decisions of people to acquire or

dispose of interests in real property in the areas

within the Town affected by the sound of airplane

overflights. (Finding #129)

In an attempt to deal with the problem, the Town added

a new article to its Unnecessary Noise Ordinance, forbid-

ding anyone from operating a mechanism or device (in-

cluding airplanes) which creates a noise within the Town

exceeding either of two ‘‘limiting noise spectra.’’ Claiming

that the ordinance would prohibit airplanes using JFK

from flying over the town, and thus would restrict the

LA EEE ANNA IO AD EIEN AD Net ts

3a

Opinion of the United States Court of Appeals

landing and take-off patterns and procedures normally

adhered to by those airplanes, nine major American-flag

air carriers, The Port of New York Authority, Charles H.

Ruby as president of the Air Line Pilots Association, three

air line pilots, individually and as representatives of their

class, and the Administrator of the Federal Aviation

Agency (as intervenor) sued to enjoin the enforcement of

the ordinance against them.

The Town argued initially that aircraft could fly over

the Town in compliance both with the ordinance and with

the TAA regulations governing landing and take-off pat-

terns and procedures. There was no question, however,

but that at the time the suit was brought, take-offs and

landings at JFK regularly produced noise exceeding the

relevant limiting noise spectrum of the ordinance.

The District Court made crucial findings of fuct which

contradict the Town’s initial argument that compliance

with the ordinance is possible without alterations in flight

patterns and procedures, and the Town has now shifted

its ground, arguing in essence that the ordinance is not an

undue burden on interstate commerce, because ‘‘the Town

has unveiled a plan pursuant to which approximately 98%

of all flights [to and from JFK] will avoid the Town

while, at the same time, the present traffic capacity will

be unaffected.’’ (Town’s brief, p. 22).

The crucial findings of fact are Nos. 281-2941 The

1281. The Town of Hempstead intends to enforce the Amended

Ordinance ‘and has counterclaimed for an injunction against plain-

tiffs’ violation of the Ordinance.

282. Compliance with the Hempstead Ordinance’s regulation of

noise production and duration would be determinative of the alti-

tudes at which and the flight paths by which commercial aircraft

could operate into and out of Kenuedy Airport on take-offs and

landing approaches, and would exclude them from paths that trav-

erse Hempstead when conducted in accordance with existing traffic

patterns and airport and FAA procedures, and the flight require-

da

Opinion of the United States Court of Appeals

court found thai compliance with the ordinaiice would be

determinative of the altitudes at which and flight paths by

which commercial aircraft could fly into and out of JFK;

ments flowing from the Ordinance would be in large part incom-

patible with the existing traffic patterns and FAA procedures.

283. The altitudes and flight paths which the Ordinance would

require commercial aircraft to use in order to comply, would

directly conflict with the altitudes and flight paths now established

for commercial aircraft under existing FAA regulation of air traffic

at Kennedy Airport.

284. Compliance with the Hempstead Ordinance would require

a redesigning by the FAA of the’ present set of SIDs and landing

approaches for Kennedy Airport, and integrating the redesigned

procedures with the related procedures at the other Metropolitan

Airports; it could not preserve the sa ty margins of the existing

procedures without restricting the traffic handling capacity of Ken-

nedy Airport.

285. The combination of the physical facts of wind and weather

conditions, the FAA air traffic regulations and enforcement of the

Hempstead Ordinance would radically reduce the availability of

Kennedy Airport for air transportation.

286. There is no reliable evidence that a set of procedures

could be devised for Kennedy Airport in the present state of

aviation development which could without substantial sacrifice of

the interest in flight safety assure either practical or complete com-

pliance with the Hempstead Ordinance.

287. The radical reduction of the capacity of Kennedy Airport

to handle scheduled commercial aviation which would result from

the enforcement of the Hempstead Ordinance would cause very

great economic loss to each of the plaintiffs herein, and in conse-

quence, to the metropolitan New York community.

288. It is a fair inference from the evidence at this stage of the

case that there is a substantial risk that enforcement of the Ordinance

would result in some of the commercial airlines’ withdrawing some

or all of their scheduled operations from Kennedy Airport, and if any

substantial part of that traffic were lost, Kennedy Airport would no

longer be a viable economic operation for the Port Authority.

ee

5a

Opinion of the United States Court of Appeals

that the flight requirements flowing from the ordinance

would be in large part incompatible with existing traffic

patttrns and FAA procedures; that compliance would

mean redesigning of the flight patterns for JFK, together

with a reintegration of the redesigned patterns with those

for the other New York City airports, and that the safety

margins of the existing procedures could not be preserved

289. No other airport, or combination of «~ports, in the metro-

politan New York area could handle the passenger and cargo traffic

presently handled at Kennedy Airport, and substantial restriction of

the area traffic handled through Kennedy Airport would, until new

facilities were created, curtail the air transport of the area.

290. The interstate and foreign commerce presently conducted at

and through Kennedy Airport is an essential and integral part of

this country’s system of air commerce.

291. Continued commercial operation of Kennedy Airport at

capacity is integral to the free flow of interstate and foreign com-

merce, and the enforcement of the Hempstead Ordinance with its

constriction of the ability to make optimum use of Kennedy Airport

would seriously burden the conduct of such commerce.

292. Enforced compliance with the noise criteria of the amended

Hempstead Ordinance during the continuance of the present litiga-

tion will irreparabiy injure the plaintiff airlines, the Port Authority,

and the airline pilots through curtailing the use of Kennedy Airport

and jeopardizing its continuance as the primary intercontinental air-

port of the Metropolitan area.

293. Disregard, until final adjudication, of the limitations im-

posed by the noise criteria of the amended Ordinance exposes to

repeated prosecution each person who operates an airplane or causes

one to be operated which creates in Hempstead a noise exceeding the

limiting noise spectra of the Ordinance.

294. The disadvantage to the inhabitants of the defendant Town

from continuance of the operation of Kennedy Airport on substan-

tially the present basis is outweighed by the advantages to the

total social interest, including that of the inhabitants of the Town

in the continued operation of Kennedy Airport in its present legal

Framework. | :

6a

Opinion of the United States Court of Appeals

without restricting the traffic handling capacity of JFK;

and that there is no reliable evidence that a set of pro-

cedures could be devised for JFK in the present state of

aviation development which could, without substantial

sacrifice of the interest in flight safety, assure compliance

with the ordinance. None of these findings have been at-

tacked o~ this appeal, except that the Town still insists

that its alternate plan, submitted to the District Court,

could steer most flights away from the Town, thus assur-

ing compliance with the ordinance. Apart from the lack

of a showing that the District Court’s finding to the con-

trary is clearly erroneous, it is clear that given the neces-

sary determination of the legal issues in the case, the

Town’s alternate plan, even if it were feasible, would be

irrevelant.

On the basis of his detailed and thorough findings of

fact, Judge Dooling concluded: (1) that the ordinance is

an unconstitutional burden on interstate commerce; (2)

that the area in which the ordinance operates has been

pre-empted by federal legislation and regulation; and (3)

that the ordinance is in direct conflict with valid applicable

federal regulation.

Any one of the District Court’s three conclusions is

enough, of course, to make the ordinance invalid. There

is no need for determination of the validity of the first

two grounds, since the third ground for the ordinance’s

invalidity (that is in conflict with applicable federal

regulation) is an ample basis for affirmance. In Loma

Portal Civic Club v. American Airlines, Inc., 39 Cal. Reptr.

708, 394 P. 2d 548 (1964), the California Supreme Court

affirmed a refusal to enjoin flight operations at a public

airport at the behest of the owner of property in the neigh-

borhood of the airport, basing its decision on the narrow

ground that it is clearly against the policy of the State

of California for its courts to interfere with airport flight

patterns which are established by federal regulation. The

7a

Opinion of the United States Court of Appeals

court explicitly refused to accept an argument that the

regulation of aviation has been pre-empted by federal ieg-

islation and regulation; indeed, the opinion indicated that

the court thought there was no pre-emption.

Before considering the grounds advanced by the District

Court for the conclusion that the ordinance is invalid, we

may point out that this case has nothing to do with ques-

tions of landowners’ rights to compensation for overflights

of their land which amount to a ‘‘taking’’ of their property.

[See United Srates v. Causby, 328 U. S. 256 (1946), and

Griggs v. Allegheny County, 369 U. S. 84 (1962).] All that

is involved is the validity of the ordinance.

We consider first the point that the ordinance is in

direct conflict with a valid applicable federal regulation.

The Federal Aviation Act of 1958 provides, inter alia:

There is recognized and declared to exist in behalf

G. any citizen of the United States a public right of

freedom of transit through the navigable airspace of

the United States. [49 U.S. C. § 1304]

The Administrator is authorized and directed to

develop plans for and formulate policy with respect

to the use of the navigable airspace; and assign by

rule, regulation, or order the use of the navigable

airspace under such terms, conditions, and limita-

tions as he may deem necessary in order to insure

the safety of aircraft and the efficient utilization of

such airspace ... [49 U.S. C. § 1348(a)]

The Administrator is further authorized and di-

rected to prescribe air traffic rules and regulations

governing the flight of aircraft, for the navigation,

protection, and identification of aircraft, for the pro-

tection of persons and property on the ground, and

for the efficient utilization of the navigable airspace,

including rules as to safe altitudes of flight and

8a

Opinion of the United States Court of Appeals

rules for the prevention of collision . . . [49 U.S. C.

§ 1348(c)]

As Judge Dooling found, the Administrator (Administra-

tor of the Federal Aviation Agency, see 49 U. S. C. § 1301

(1)) has promulgated extensive regulations under the Act,

which unquestionably control the patterns and procedures

of aircraft flying into and out of JFK.* The ordinance

2 See Findings Nos. 67-104, as follows:

67. The Administrator has established an extensive system of

electronic navigational aids and a network of Federal Airways and

Jet Routes surrounded by controlled airspace for aircraft operating

within the air traffic control system. The Federal Airways are

eight miles wide and extend from one navigational aid (or inter-

section) to another such aid (or intersection); Federal Airways

have a floor of 700 feet mean sea level (“MSL”) and a ceiling at

18,000 feet. The airspace within these Federal Airways is desig-

nated as control areas, except the portions above 14,500 feet MSL.

Those portions lie within the Continental Control Area that en-

compasses all airspace of the United States between 14,500 feet

MSL and 45,000 feet MSL.

68. The Jet Routes, also eight miles wide, are between 18,000

feet MSL and 45,000 feet MSL. They are within the Continental

Control Area. The higher altitudes where most Jet Route opera-

tion occurs, are within the Positive Control Area, i.e., the airspace

between 24,000 feet MSL and 60,000 feet MSL where all operations

are under positive control.

69. The networks of Federal Airways and Jet Routes converge

upon holding patterns or gates through which aircraft pass and

from which they are vectored by “Air Traffic Control” over desig-

nated courses and at specified altitudes to the points from which

they execute their approach for landing at the airport.

70. “Air Traffic Control” means a service operated by appro-

priate authority to promote the safe, orderly, and expeditious flow

of air traffic.

71. Control over the aircraft within the Kennedy Airport con-

trol zone and within certain portions of the adjacent area is exer-

cised by Federal Aviation Agency Airport Traffic Control Tower

personnel located at the airport.

powmewwnnee comer

9a

Opinion of the United States Court of Appeals

and these regulations are unguestionably in direct conflict.

They are im conflict not because the regulations and the

ordinance impose different standards for noise, but be-

72. The Federal Aviation Air Traffic Control personnel at the

Air Route Traffic Control Center at Islip, Long Island, New York,

exercise control throughout the rest of the New York Area over

aircrait operating under Instrument Flight Plans. These facilities

are operated on a 24-hour basis, 7 days a week.

73. To provide separation between aircraft under its control,

Air Trafic Control assigns altitudes for holding at the gates from

which aircraft are vectored to points of landing approach, or holding

patterns, and for operating on the Federal Airways and Jet Routes.

74. The Administrator has established a system for the control

of am traffic which provides for separation, and which operates

withm defined airspace identified as “control zones” and “control

areas.”

73. The airspace within a “vco.'rol zone” below an altitude of

2,000 feet above the surface, and wiin a horizontal radius of five

Statute miles irom the geographical ceuter of any airport, is desig-

mated as the “airport traffic area” (FAR 1.1). Unless otherwise

The control areas are of varying elevations and dimensions.

Part of the Town of Hempstead lies within the control zone of

Kennedy Airport. The remainder of the Town lies beneath a con-

trol area which extends from 700 feet above the surface to 14,500

feet MSL.

77. The rules established by the FAA for the control of air

traffic are broadly separated into Visual Flight Rules (VFR) and

Instrument Flight Rules (IFR) (FAR, Part 91).

78 Fight pursuant to ITR is required when weather conditions

do not meet specified minima of ceiling and visibility (FAR §§ 1.1,

91.105, 91.107).

10a

Opinion of the United States Court of Appeals

cause the District Court has found, in view of the present

state of development of noise suppression techniques, that

compliance with the noise ordinance would require altera-

79. When the specified minima of ceiling and visibility are met,

flights may be conducted pursuant to VFR (FAR §§ 91.105, 91.107).

80. Whether their operations are conducted pursuant to IFR or

VFR, flights through any airspace subject to federal control are

obliged to obey all instructions given by the Air Traffic Control

service of the FAA (FAR §§91.75(b), 91.85, 91.87).

81. The Air Traffic Control service of the FAA maintains con-

trol over en route aircraft by radio communication from control

Centers across the nation.

82. The Continental United States is divided into numerous such

Centers, each of which is subdivided into sectors, and aircraft are

relayed from one Center to the next in their flights across country.

83. The Air Traffic Control Center for the New York Center

is located in Islip, New York.

84. The pilot and his aircraft while under the surveillance and

jurisdiction of the Air Traffic Control personnel at Islip or Kennedy

Airport are required to conform with all the prescribed protedures

(FAR § 91.115).

85. IFR flights descending fom the gates or holding patterns

on which the Federal Airways converge are provided separation

from other aircraft under Air Traffic Control.

86. No person may operate an aircraft in controlled air space

under Instrument Flight Rules unless he has received an appropri-

ate Air Traffic Control clearance (FAR § 91.115(b)).

87. “Air traffic clearance” means an authorization by Air Traffic

Control, for the purpose of preventing a collision between known air-

craft, for an aircraft to proceed under specified traffic conditions

within controlled airspace (FAR § 1.1).

88. Compliance with air traffic control clearances is required by

Federal Aviation Regulations [FAR § 91.75(a) ].

89. At an airport with an operating control tower, no pilot may

taxi an aircraft on a runway, or take-off or land an aircraft unless

Ne

ROCCE es ee a

lla

Opinion of the United States Court of Appeals

tions in the flight patterns and procedures established by

federal regulation.

In Allegheny Airlines v. Village of Cedarhurst, 238 F. 2d

812 (2 Cir. 1956), this court relied on the provisions of the

he has received an appropriate clearance from Air Traffic Control

[FAR § 91.87(h)].

90. No person may, in general, deviate from an air traffic con-

trol instruction in an area in which air traffic control is exercised

(FAR § 91.75) ; however, the procedures and regulations recognize

that in a given instance, where he deems it necessary for the safety

of flight, the pilot may deviate from such procedures or regulations

(FAR §§ 91.3, 91.75).

91. No person may operate a civil aircraft in Instrument Flight

Rule Conditions unless the aircraft carries enough fuel (considering

weather reports and forecasts, and weather conditions) to complete

the flight to the first intended point of landing, to fly from that

point to the alternate airport, and to fly thereafter for 45 minutes at

normal cruising speed (FA § 91.23).

92. When an instrument letdown to an airport is necessary, the

aircraft must use a standard instrument aproach procedure piescribed

by the Administrator for that airport [FAR §91.117(a)].

93. The Administrator has promulgated rules governing the

operation of aircraft outside as well as within controlled airspace

(eg., FAR §§ 91.67, 91.79). For example, Federal Aviation Regu-

lations prohibit the operation of an aircraft in a careless or reckless

manner so as to endanger the life and property of anoth - (FAR

§ 91.9).

94. Unless otherwise authorized by Air Traffic Control:

a. Turbine-powered aircraft must maintain, within the airport

traffic area, an altitude of at least 1,500 feet above the surface of the

airport until further descent is required for safe landing [FAR § 91.87

(d)(1)];

b. Large aircraft approaching to iand on a runway served by an

Instrument Landing System (ILS) must, if the aircraft is ILS

equipped, operate the aircraft at or above the glide slope between the

Outer Marker and the Middle Marker [FAR § 91.87(d) (2)];

12a

Opinion of the United States Court of Appeals

Civil Aeronautics Act of 1938, which are somewhat less

comprehensive than the provisions of the 1958 Act quoted

above, to declare invalid an ordinance which prohibited —

c. An airplane approaching to land on a runway served by a

visual approach slope indicator, must maintain an altitude at or

above the glide slope until a lower altitude is necessary for safe

landing [FAR § 91.87(d) (3)];

d. An aircraft approaching to land at an airport served by a tower

must circle the airport to the left [FAR § 91.87(e)(1)];

e. An aircraft taking-off from an airport with an operating con-

trol tower must comply with any departure procedure established at

that airport by the FAA [FAR § 91.87(f)(1)];

f. When landing or taking-off from an airport with an operating

tower and for which a preferential runway system has been estab-

lished by the FAA, a large aircraft, assigned a preferential runway

by Air Traffic Control, must use that runway [FAR 91.87(g)];

g. Large aircraft approaching for landing at John F. Kennedy

International Airport are required to maintain an altitude of at least

1,500 feet above the surface so long as practicable [FAR § 93.33; 14

CFR § 93.33] ; and

h. Departing aircraft are required to climb to an altitude of 1,500

feet as rapidly as practicable (FAR § 91.87(f)).

95. Pursuant to Title VI of the Act (promotion of safety of flight

by prescribing and revising standards, rules and regulations) the

Administrator has promulgated rules and regulations governing the

operation and maintenance of aircraft (FA Parts 43, 91), the cer-

tification of airmen (FAR Part 61), the issuance of type certificates

(FAR Part 21), the issuance of and standards for airworthiness cer-

tificates (FAR Part 21, Sub-part H) and the issuance and use of

air carrier operating certificates (FAR Part 121).

96. Every aircraft manufacturer prepares an operating manual

for each model of aircraft produced and these manuais, if approved

by the FAA after inspection and testing of the aircraft, set forth

the maximum demonstrated performance limits of the aircraft.

97. The manufacturer’s manual must contain all the certificate

limitations of the aircraft and performance data necessary for opera-

tion, including required techniques for operation such as those needed

13a

Opinion of the United States Court of Appeals

air flights over the Village of Cedarhurst at altitudes of

less than 1,000 feet. The opinion can be read either as

a holding that the entire field of regulation of aircraft

flight has been pre-empted by the federal government, or

as a holding that the particular ordinance involved was in

conflict with the federal regulatory scheme. In Loma Portal

Civic Club v. American Airlines, Inc., supra, the Califor-

nia Supreme Court chose the narrower reading of the

Cedarhurst case. Whichever reading is accepted, it is clear

that Cedarhurst is square precedent for holding the Hemp-

stead ordinance invalid, for in effect there is square con-

for normal take-off and landing, emergencies, obstacle take-off and

climb-out, maximum climb angles, degree of allowable bank on turn-

ing and crosswind operations.

98. Such airplane flight manuals contain all the data respecting

the critical performances of the airplane, and set forth the information

needed to achieve the minimum acceptable level of safety in operating

the airplane in an emergency.

99. A copy of the appropriate manual for its model is required

by regulation to be carried aboard each and every aircraft.

100. Each commercial airline, pursuant to regulation, prepares its

own operating or flight manuals directly from the FAA approved

manufacturer’s manuals.

101. The manuais are, under the regulations, binding upon all

flight personnel; they contain operating procedures and techniques

for the entire operation of the aircraft, and include FAA route

maps, navigational charts and approach and departure patterns.

102. Each such manual prepared by an air carrier reproduces

the certificate limitations and performance data sections of the FAA

approved manufacturer’s manual without change except in format.

103. When the material required by federal regulation is in-

cluded, the airline’s manual may be substituted for the FAA ap-

proved manufacturer’s manual aboard an aircraft.

104. Operating manuals prepared by any air carrier for use

of its personnel must be approved by the FAA upon its publication,

and all alterations, amendments or revisions must also be approved

by the FAA,

l4a

Opinion of the United States Court of Appeals

flict between the local ordinance and federal regulation in

each case; indeed, the Hempstead ordinance is in effect

a more comprehensive regulation of air traffic patterns

than was the Cedarhurst ordinance. (For one thing, it

would bar flights at altitudes much higher than 1,000 feet;

see, e.g., Finding No. 199:° the vast majority of commercial

jet aircraft could comply with the ordinance on take-off

from JFK only by flying over the Town at minimum alti-

tudes ranging from 5,050 to 14,200 feet for turbojet and

from 3,900 to 11,300 feet for turbofans. )

The Town argues that Judge Dooling erred in conclud-

ing that the ordinance must be tested as if there were a

set of ordinances each enacted by a bordering town, and

taken all together enveloping the airport. Reliance is

placed on the statement in Huron Portland Cement Co. v.

Detroit, 362 U. S. 440, 448 (1960) that the court would

not consider the argument raised by the appellant there

(who was contesting the constitutionality of a smoke abate-

ment ordinance enacted by the City of Detroit as it applied

to its vessels operating in interstate commerce) that dif-

ferent communities might enact smoke abatement ordi-

nances with different standards, because the appellant had

pointed to no such ordinances. The Town’s analogy is

false. The problem in this case is that Hempstead’s ordi-

nance would cause aircraft to fly over other towns, not

that different towns might enact different noise ordinances.

More important, there was no conflict between local and

federal regulation in the Huron case; the problem there

was undue burden on interstate commerce.

The Town also argues that Cedarhurst is irrelevant,

because it regulated flight paths, while Hempstead’s ordi-

$199. The same calculations indicate that the vast majority of

commercial jet aircraft could comply on take-off only by flying over

the Town of Hempstead at much higher minimum altitudes (in the

range 5,050 to 14,200 feet for turbojets and in the range 3,900

to 11,300 feet for turbofans).

lda

Opinion of the United States Court of Appeals

nance regulates noise. That ignores the essential point in

the case, which is that some noise ordinances necessarily

regulate flight paths, and the District Court found that

Hempstead’s is ene of those.* In view of that finding, the

injunction naturally followed. The order granting pre-

liminary injunction is affirmed.

*In view of the conflict between the ordinance and the federal

regulation we need not consider the questions of federal pre-emption,

and undue burden on interstate commerce. In some situations, fed-

eral legislation and regulation is deemed so pervasive as to rule out

all state and local attempts to regulate in the areas thus “pre-empted”

by the federal government. See, e.g., Campbell v. Hussey, 368 U. S.

297, 82 S. Ct. 327 (1961). The area of flight patterns and pro-

cedures may be one of these; this court’s opinion in the Cedarhurst

case implies that it is, whereas the California Supreme Court’s opinion

in Loma Portal Civic Club v. American Airlines, Inc. says that it is

not. See also City of Newark, New Jersey v. Eastern Airlines, 159

F. Supp. 750 (D. N. J. 1958).

The third point involves the question whether the ordinance un-

duly burdens interstate commerce. If it was an undue burden on

commerce for the State of Arizona to regulate the length of trains

operating within the state, see Southern Pacific Co. v. State of Ari-

zona, 325 U. S. 761, 65 S. Ct. 1515 (1945), it may be that this

particular ordinance, found to regulate aircraft flight paths and pro-

cedures, is an undue burden on commerce. But the problem arises

that it is this particular noise ordinance in this particular setting

which is found to regulate flight paths and procedures; another

noise ordinance might not have that effect.

16a

Opinion of Dooling, D. J.

(R., pp. 5510-5539)

Nine major American-flag air carriers, the Port of New

York Authority, Charles H. Ruby as president of the Air

Line Pilots Association, three air line pilots, individually

and as representatives of their class, and the Administrator

of the Federal Aviation Agency (as intervenor) have sued

to enjoin the enforcement against them of the Town of

Hempstead Unnecessary Noise Ordinance (No. 25), Article

II, as amended March 10, 1964, so far as it applies to air-

craft using John F’. Kennedy International Airport. Plain-

tiffs have moved for a preliminary injunction against vio-

lations of the ordinances by the plaintiffs. Some four

thousand pages of testimony have been taken, elaborate

affidavits and detailed exhibits have been presented and the

parties have, in addition, agreed in effect on many of the

background and underlying facts. In addition, tape record-

ings of actual flyovers monitored by the Town’s acoustical

expert were played back under controlled conditions which

reproduced in the Courtroom as nearly as possible the

actual experience of flyovers against a background of nor-

mal domestic sounds.

It is concluded that the plaintiffs and intervenor are

entitled to enjoin pendente lite enforcement of the Ordi-

nance and that the Town is not entitled to a preliminary

injunction against violations of the Ordinance by the plain-

tiffs. The facts have been found separately and will not

be repeated in detail here.

The Town of Hempstead lies east of Kennedy Airport

and extends both farther north and farther south than

the Airport. Some 150,000 residents of Hempstead live

within four miles of the Airport. The easterly ends of

the five runway strips at Kennedy Airport are from 1,300

to 20,850 feet from the Hempstead boundary.

17a

Opinion of Dooling, D. J.

The conflict in the present case arises out of the Town’s

addition to its Unnecessary Noise Ordinance of a new

article forbidding anyone from operating a mechanism or

device (including airplanes) which creates a noise within

the Town exceeding either of two ‘‘limiting noise spectra’’.

The noise spectra are set out in two tables; the Table I

spectrum sets out eight octave bands of center frequencies

(in cycles per second) from 63 in the first octave band

to 8,000 in the eighth octave band, and sets forth the noise

limit for each band in decibels of ‘‘band pressure level’’

(referred to the conventional base of 0.0002 microbars,

considered the pressure level of a sound at the threshold

of audibility). The decibel limits range from 92 decibels

in the first or lowest pitched band to 52 decibels in the

eighth or highest pitched band, thus recognizing that high

pitched sounds are more ‘‘annoying’’ than low pitched

sounds of equal pressure level. The Ordinance treats as

a violation any transient noise having a ‘‘duration’’ ex-

ceeding twelve seconds in the daytime hours 7:00 A.M.

to 7:00 P.M., or exceeding six seconds in the night hours

7:00 P.M. to 7:00 A.M. The second or Table II spectrum

applies to ‘‘steady noise’’ exceeding one minute in dura-

tion and the limiting band pressure levels are, in each

octave band, 20 decibels lower than the corresponding Table

I value. ‘‘Duration’’ of transient noise (during the entire

period when the noise from a source is first distinguished

from the ambient noise until the noise from that same

source finally recedes into the ambient noise) is defined

as the time beginning when the noise first exceeds a certain

band pressure level until it no longer exceeds the same

band pressure level, provided it remains above the same

band pressure level for at least one-third of the total

‘‘duration’’. Exceeding the band pressure level in any

one octave band is a violation even if all other octave band

noises are well below their limiting levels. It is not sug-

18a

Opinion of Dooling, D. J.

1°

gested thai the ‘‘limiting noise spectra’’ of the Ordinance

are unreasonably low viewed as stating sound levels above

which noise is irritatingly loud when heard in private

dwellings. .

There is no question, indeed both sides insist, that take-

offs from and landing approaches to Kennedy Airport reg-

ularly produce noise that exceeds the limiting noise spec-

trum of Table I in Hempstead while the aircraft are pass-

ing over parts of the Town. And, in whet may be taken

to be a typical enough year, in 48% of the landings the

aircraft passed over some part of Hempstead and in 36%

of the take-offs the aircraft passed over some part of Hemp-

stead. The parties assume that Kenuedy Airport will

be used more intensively in future, and that in general,

the aircraft using the Airport will be larger and will use

jet engines of greater thrust than those presently in use.

Plaintiffs and the intervenor contend that the Town is

impotent to impose such anti-noise legislation as is here

involved because it amounts to forbidden regulation of

interstate and foreign commerce. Defendants contend that

the Ordinance is a proper exercise of police power to

protect the welfare of its citizens and that it does not

operate in any field actually occupied by federal action

or peculiarly served for federal action. Defendants ar-

gue strenuously that overflights can be all but eliminated

by changing take-off and landing approach procedures in

logical extension of existing procedures already approved

by the Federal Aviation Agency (FAA) for certain take-

offs and landings at Kennedy Airport.

It would be difficult to exaggerate the magnitude of the

regional and national commitment to Kennedy Airport, and

the importance of its role in the interstate and intercon-

tinental transport of mail, passengers and cargo, and it is

needless to add that air transport, and particularly long

19a

Opmmion of Dooling, D. J.

distance air transport, is not an optional alternative to

ground and water transport but is indispensable. The two

other major airports serving the greater Metropolitan area,

LaGuardia and Newark, operated under a common con-

troi through the Port of New York Authority, do not,

with Kennedy, provide all the airport capacity the region

requires. The search for new airport facilities to relieve

the overburdened airports of the present and make room

for the future has been publicly conducted for years.

In the years since 1948, when the Port Authority under-

took to operate Kennedy, turbo and fan jet aircraft have

all but displaced turbo and piston driven propeller craft.

Larger, heavier and faster than propeller craft, the jets

have demanded lengthened runways, and exacted new con-

stants of air traffic management. Broadly, the airport

base they required was, in absolute terms, larger in every

dimension than what had been required for propeller craft,

and the inverted truncated cone of air space resting on

the airport, that can be thought of as representing the

zone marked by the jets’ landing glide slopes of about

three degrees, was far nearer the edges of the airport

and closer down on the bordering communities. It was as

if every existing propeller craft runway had been suddenly

moved out toward the boundary of the airport. The margin

of laterally insulating air that had sheltered the neighbor-

hood of the airport from take-off and landing noise was

radically reduced and the impact on the surrounding com-

munities was marked and unhappy.

The Town of Hempstead, neighboring the airport to

its east, is the largest town in the State. It is 128 square

miles in area and has grown rapidly in population in

recent years; its population was 432,506 in 1950, was 740,-.

738 in 1960, and was estimated at nearly 806,000 in Sep-

tember 1963. ‘In 1964 there were about 225,000 dwelling

units in the town, and the population density in the areas

nearest to the Airport exceeded 10,000 persons per square

20a

Opinion of Dooling, D. J.

mile. It is estimated that 150,000 people live in the incor-

porated villages that lie within three miles of the Air-

port. The Town is primarily residential.

The problem with which the Town Ordinance deals does

not affect the whole Town. Parts of the Town-Levittown

and Wantagh, for example—are as far from the center

of the Airport as is Central Park. Thickly populated

areas in Queens, including the Rockaway Peninsula, and

Brooklyn are as close to the center of the Airport as the

northwest corner of the Town, which is affected by flights

taking off from or landing on the northeast-southwest ori-

ented runways at Kennedy. The noise provlem is not

peculiar to Hempstead nor does it equally affect the many

communities in the Town. It is a problem that affects

communities in terms of their proximity to the Airport

quite without reference to town, city and borough boun-

(aries.

The dimensions of the noise problem cannot de min-

imized. It is, however, one of the manifold of environmental

problems that press on a society in which the pace of

industrialization steadily outstrips the capacity to deal with

its modification of the total environment of urban and

suburban existence. Perhaps the aircraft noise problem

differs in that it appears to be unavoidable, in the present

stage of technical development, and not a consequence

of the failure to take feasible precautions or to provide

practical remedies.

The testimony has dealt mostly with turbo-jet and

turbo-fan aircraft since they are the ones on which the

problem centers and they are steadily displacing propeller

driven aircraft. The testimony—and this area is non-con-

tro -ersial—showed that the noise sources are the com-

pressor whine produced by beating of the blades and vanes

on the air and the sound produced outside the engine by

the exhaust discharge, moving at high velocity and shear-

21a

Opinion of Dooling, D. J.

ing throzgh the ambient air and dragging it along in eddies

that increase in size as they are swept along. The sound

wave length—and sound pitch—of the eddies is related to

their diameter. Turbo-jet and turbo-fan engines, while

broadly similar as noise sources, differ in that the wake

velocity of the turbo-fan is relatively lower and more of

the energy of the engine is used in the compressor, which

has an annular discharge directly te the air. Jet aircraft

noise is thas predominantly the product of relative mass

flow between the ambient air and exhaust discharge. There

is no imdication that it could be muffled like an automobile

engine or that progress in diminishing noise-production by

jet engimes can im the foreseeable future do more than

mitigate it by such advances as the turbo-fan represents in

relation to the turbo-jet.

Given the jet engine, with iis noise characteristics, the

amount of noise it produces in service as it affects the

neighborhood of an Airport is determined by the air-

frame of the aircraft, its take-off weight or landing weight,

the thrast applied by its engines, the flap setting of the

wings and other physical constants. The evidence showed

plainly take-offs and landings are essentially mathemati-

eal solutions of problems in physics and not inspirational

piloting. The evidence is very clear that a very high

degree of skill 2nd judgment in the piloting of aircraft

is indispensable, but the point is that, to the uninitiate,

the flight manual is an immense array of graphs and tables

that translate aircraft weight, air temperature and hu-

midity, change in weight during flight due to fuel loss,

radius of turn, angie of bank, and many other elements

into quantitative measures of air speed, thrust setting, flap

setting, ete. . . . The testimony made it very clear that

fiving a jet transport is a complex enterprise.

The aircraft in flight is inevitably « noise source. It

travels at the center of a sphere of sound that attenuates

ee

22a

Opinion of Dooling, D. J.

with distance in accordance with the law of inverse squares

(‘‘spherical divergence’’) and by an absorption constant

determined by atmospheric conditions and the octave band

level of the sound; the higher frequency sounds are much

more affected by absorption than low frequency sound.

In general doubling the distance at which a noise is meas-

ured reduces it by six decibels. The noise of the air-

craft is inseparable from it, and the evidence is clear that

the noise cannot be much or safely mitigated by dimin-

ishing thrust at the levels at which take-offs and landings

are executed. The evidence explored these matters ex-

haustively and they are detailed in the findings.

The picture that emerges clearly is that the aircraft are

operated in a thoroughly responsible manner and with

an attention to engineering detail that would have been

difficult to credit without the thorough evidentiary elab-

oration it received during the trial. Equally clear is the

demonstration that noise is regularly created in the Town

which radically exceeds the limiting noise spectra of Table

I of the Ordinance. The evidence supports no other con-

clusion than that continued operation in accordance with

present operating procedure will create noise in the Town

substantially in excess of the ordinance criteria. The rec-

ords of overflight that were in compliance indicate that the

flights were at altitudes so high that the aircraft could

not land at or take-off from Kennedy at all if required

to maintain those compliance altitudes over Hempstead.

The various monitorings of flights produced aggregate

samples that were sufficiently large, and free from the

suspicion of pre-selection and tendentious exclusions, to

establish that the pattern of systematic non-compliance

with the ordinance was a direct consequence of the basic

plan of airport use and was not due to differences among

pilots or among airlines or, among jet aircraft, to differ-

ences in take-off weight or aircraft size, although all of

these factors bore on the degree of non-compliance.

23a

Opinion of Dooling, D. J.

The collision between the present mode of operating

the Airport and the Hempstead ordinance is, thus, direct

and complete. The ordinance is a noise ordinance in

objective. Hempstead kh2s, presumably, no desire to regu-

late the conduct of the Airport for regulation’s own sake.

Yet the Ordinance can achieve its objective only if over-

flights are above the calculated altitudes required to

achieve compliance. If the Ordinance is to be complied

with, landing approaches and take-off procedures long in

use, and chosen for valid air traffic and safety reasons,

will have to be abandoned.

The aircraft and its noise are indivisible; the noise

of the aircraft extends outward from it with the same

inseparability as its wings and tail assembly; to exclude

the aircraft noise from the Town is to eaclude the air-

craft; to set a ground level decibel limit for the aircraft

is directly to exclude it from the lower air that it cannot

use without exceeding the decibel limit. The Town rec-

ognizes this, for it proposes, with ingenious analysis, a new

pattern of Airport use the essence of which is that over-

flights of Hempstead will be radically diminished and

almost all those that do occur will be at heights at which

compliance seems a possibility. In a word, the Ordinance

does not forbid noise except by forbidding flights and it

is, therefore, the legal equivalent of the invalid Cedarhurst

Ordinance. All America Airways v. Viliage of Cedar-

hurst, E.D.N.Y. 1952, 106 F. Supp. 521, aff’d, 2d Cir. 1953,

201 F.2d 273; after final judgment, aff’d, sub. nom. Alle-

gheny Airlines v. Village of Cedarhurst, 2d Cir. 1956, 238

F.2d 812. Like the Cedarhurst ordinance, it denies the

lower air to aircraft and closes against them landing ap-

proaches and take-off paths to an established airport in

contravention of the federally granted public right of free-

dom of transit through navigable air space (49 U.S.C.

§ 1304) including the air space needed to insure safety.

24a

Opinion of Dooling, D. J.

in take-off and landing of aircraft [49 U.S.C. § 1301(24)].

See also City of Newark v. Eastern Airlines, D.N.J. 1958,

159 F. Supp. 750.

It would not be enough to save the ordinance that it

is grounded in a concern for local order and public health,

so that, if the ordinance had been enacted in another con-

text it might have been valid. Cf. Weber v. Anheuser-

Busch, Inc., 1955, 348 U.S. 468 479-481. The decisive ques-

tion is whether the ordinance (operating as it must if it

is to achieve its objective), conflicts with federal law, or

invades a field of legislation reserved to the national gov-

ernment. Given the necessary effect of the ordinance as

it applies to interstate and international aircraft flights

in the navigable air space surrounding Kennedy Airport,

it must be concluded on the present record that the ordi-

nance is invalid. The legislation operates in an area com-

mitted to federal care, and noise limiting rules operating

as do those of the ordinance must come from a federal

source.

To dispose first of an argument presented in various

forms: the case is not involved with landowners’ rights,

or with concepts of trespass or nuisance. The ordinance

is not an exercise of landowners’ rights, but it is, if valid,

an exertion of police power purely as such; it as much

restricts the rights of Hempstead landowners to create

excessive noise as it does the right of overflying aircraft.

Sc far as landowners are concerned, they are constitu-

tionally entitled to just compensation if overflights are

such in nature, proximity and frequency as to amount to

a taking of the property for public purposes (United States

v. Causby, 1946, 328 U.S. 256; Griggs v. Allegheny County,

1962, 369 U.S. 84); but that does not constrict the fed-

erally granted public right of freedom of transit through

air space, including that needed for safe landing and take-

off, and certainly confers no legislative power on municipal-

25a

Opinion of Dooling, D. J.

ities. Cf. Avery v. United States, Ci. Cls. 1964, 330 F.2a

640, 642, as to compensable interferences with the enjoy-

ment of property. Such a case as Swetland v. Curtiss

Airports Corp., 6th Cir. 1932, 55 F.2d 201, dealing with a

private landing field and not with a public airport, en-

joined the operation of the field as planned on nuisance

grounds, but it is not expressive of the present-day law

applicable to public airports. Contrast Loma Portal Civic

Club v. American Airlines, Inc., 1964, 61 Cal. 2d 582, 394

Pac. 2d 548; Martin v. Port of Seattle, 1964, 64 Wash. 2d

309, 391 Pac. 2d 540. And, again, the question is not what

rights landowners may or may not have but what ordi-

nances the Town may validly enact.

Such an ordinance as Hempstead’s cannot be consid-

ered in the accident of its particular circumstances. Thus,

much that the Town argues about the possibility of oper-

ating the Airport without intrusions into the Town’s air

space is wholly irrelevant. In the perspective of power,

the ordinance must be tested as if it were one of a set

of ordinances each enacted by a bordering town, and all,

taken together, enveloping the airport. Diversion of the

airport traffic over another Town would then be impos-

sible and each ordinance would be revealed in its inner

nature as a direct regulation of aircraft flight. The test

is whether the power of enactment is present; to show

that, adventitiously, the power, as sought to be exercised,

may not render airport operations impossible, but may,

only require their diversion to other parts of the navigable

air space, shows only that the consequences of the exer-

cise of the power may be avoidable, because of accidental

features of the circumstances in which it is exercised; it

does not show that the exercise of the power is valid. The

question remains, may the municipalities that surround an

airport adopt such ordinances as Hempstead’s which deny

to aircraft those parts of the navigable air space that cannot

be used without causing noise on the ground in excess of

specified limiting noise spectra.

26a

Opinion of Dooling, D. J.

The regulation of interstate and foreign navigation has

from the beginning of our constitutional history raised

questions of the relative scope of state power and of the

power of the national government. Gibbons v. Ogden,

1824, 22 U.S. (9 Wheat.) 1, 196-197, 209-212, 230-237;

Cooley v. Board of Wardens, 1851, 53 U.S. (12 How.) 299,

319-320. The inquiry whether regulation of the navigation

of aircraft in interstate and foreign commerce is a field

—in the language of Cooley—‘‘imperatively demanding

a single uniform rule’’ does not need to be and cannot

be broadly answered. But legislation, whatever its pur-

pose, that denies access to navigable air space by local

rule cannot but be regarded as a plain and forbidden exer-

tion of the power to regulate commerce as such. Cf.

Leisy v. Hardin, 1890, 135 U.S. 100. By the very nature

of the power exercised, it could be used by neighboring

towns to impose different and inconsistent rules, and the

operator of aircraft thus be required to conform to the

most exacting rule. Cf. Southern Pacific Co. v. Arizona,

1945, 325 U.S. 761, 767-769.

But even if the commerce clause were not thought with-

out more to preclude local action of the kind here in-

volved, the actual exercise by the Congress of the power

to regulate in this field is so pervasive as to preclude valid

enactment of the Hempstead Ordinance. It would be diffi-

cult to visualize a more comprehensive scheme of com-

bined regulation, subsidization and operational partici-

pation than that which the Congress has provided in the

field of aviation. Federal aid for public airport develop-

ment is provided (49 U.S.C. §§ 1301 et seq.) starting from

the basis of an unqualified assertion of the public right

of freedom of transit through the navigable air space

of the United States. Carriers and routes are certificated

by the Civil Aeronautic Board, the FAA certificates air-

craft and air men. The Administrator of the FAA is

2 Peay a AP Deal SIN KER

27a

Opinion of Dooling, D. J. '

authorized and directed to prescribe air traffic rules and

regulations governing the flight of aircraft for the navi-

gation and protection of aircraft and for the protection

of persons and property on the ground, including rules

as to safe altitudes of flight and for the prevention of air-

craft collision. In exercising his rule-making authority

the Administrator is subject to the provisions of the Ad-

ministrative Procedure Act. He is authorized and directed

to assign by rule, regulation or order the use of navi-

gable air space to insure the safety of aircraft and the

efficient utilization of air space. The Administrator is

authorized—within the limits of appropriations—to acquire

and operate air navigation facilities where necessary and

to provide necessary facilities and personnel for the regu-

lation and protection of traffic. The Adminstrator’s powers

include the power to prescribe by regulation the mini-

mum altitudes of flight defining the lower limit of navi-

gable air space.

The powers granted by the Congress are not dormant

but actively exercised. The regulations of the Adminis-

trator are of formidable proportions, impressive detail

and manifest sophistication. The findings and conclusions

set out those regulations and related matters that most

nearly affect the present case.

For present purposes it is enough to note that the FAA

prepares and publishes approach procedures and standard

instrument departures (SIDs) for Kennedy Airport which

are provided to pilot and, taken with the elaborate flight

manuals approved by the FAA and carried in each plane,

standardize every material element of a commercial airline

take-off or landing including flight path, glide, slope on

landing and, within limits, climb-out procedure. Every

such take-off and landing is a moving part in a vast com-

plex of regionail aircraft traffic control that involves trans-

fer of aircraft from one FAA manual control center to

28a

Opinion of Dooling, D. J.

another until the aircraft is safe-landed on the runway

or enroute out of the area. The weft of federal airways

and electronic navigational aids mapped on the airmen’s

charts is a record of the elaborateness, complexity and

immediacy of the federal provisions of aids to and con-

trols of air traffic. As one of the witnesses put it, when

asked about the approach of aircraft from about 200 miles

out (Tr. 2530) :

‘*The aircraft is under continuous Air Traffic

Control at all times, so therefore its track over the

earth and altitude and descent and changes in alti-

tude and final approach clearances are all controlled

parts of flight. They are not free wheeling... .’’

The federal regulation of air navigation and air traffic

is so complete that it leaves no room for such local legis-

lation as the Hempstead Ordinance. Cf. Campbell v.

Hussey, 1961, 368 U.S. 297; Rice v. Santa Fe Elevator

Corp., 1947, 331 U.S. 218, 230-234; Southern Pacific Co.

v. Arizona, supra, 325 U.S. at 779; Cloverleaf Butter Co.

v. Patterson, 1942, 315 U.S. 148, 154-156; Hines v. Davido-

witz, 1941, 312 U.S. 52, 67; Pennsylvania R.R. v. Public

Service Commission, 1919, 250 U.S. 566, 568-569. There

are, to be sure, areas of freedom within the system of

controls, as, for example, in the basic rule that the pilot

in command of an aircraft is the final authority on its

operation [14 C.F.R. § 91.3(a)], and, again, in the degree

of pilot discretion when flying under Visual Flight Rules

(VFR) during fair weather as against the tighter and more

sternly patterned controls operative when the pilot is under

Instrument Flight Rules (IFR); and there is always the

pilot’s responsibility to use his judgment in emergencies,

and in identifying emergencies. But these are discretions

delegated to certificated airmen, flying certificated aircraft

SLR ene RRR ONE GE EB RRR 2D AL I SA TASTER LITE

29a

Opinion of Dooling, D. J.

and drawing their flight data from FAA approved flight

manuals, delegated discretions dovetailed into and form-

ing a part of the comprehensive control of air traffic and

navigation by FAA regulations, tower bulletins and traffic

control personnel. Cf. Local 24 v. Oliver, 1959, 358 U.S.

283, 296. But in a congested area like that surrounding

Kennedy Airport, and for jet transports, IFR flying is

the rule and VFR procedure the exception because the

pilots all but universally opt for the safeguards implicit

in voluntary subjection to IF'R procedures.

The Town observes that the Port of New York Author-

ity is apparently permitted to regulate flight. It has im-

posed a noise limitation on take-offs, and it monitors

take-offs to assure compliance; it imposes a 10:00 P.M. to

7:00 A.M. runway preferential that requires take-offs over

Jamaica Bay. Valid or not, and the airlines do not con-

cede validity, the Port Authority rules are rested on its

supposed right as the airlines’ landlord to impose con-

ditions on the airlines’ use of the Authority’s leasehold

property. See Port of New York Authority v. Eastern

Air Lines, Inc., E.D.N.Y. 1966, 259 F. Supp. 745. In

obedience to this view of its own action, the Authority

imposes rules on take-offs, for they occur on the Authority’s

property, and does not impose them on landings, for that

would be an exertien of authority over approach pro-

cedures executed off the rental premises. The Authority

points out, too, that its rules are expressly subordinate

to the FAA rules and do not profess to authorize or direct

anything not authorized under the FAA rules, regulations

and Tower bulletins.

It is argued with force that the federal legislation

nowhere in express words confers the power to regulate

noise or to protect those living near airports from noise

intrusions, and that the ‘‘Harris Report’’ to the Commit-

tee on Interstate and Foreign Commerce of the House

30a

Opinion of Dooling, D. J.

(H.R. Rep. No. 36, 88th Cong. ist Sess., 1963) assumed

that the localities could exercise police power in the noise

abatement field. But the point would seem rather to be

whether the Congress authorized the FAA to ignore noise

considerations in regulating noise-inseparable air traffic

in the perspective of safety to the aircraft and to persons

and property on the ground. The FAA is not free to

ignore, and it has not ignored, noise abatement consid-

erations in its work on aircraft design review, airport

planning, airway establishment and local traffic control,

nor in drafting its flight control regulations and )ulletins.

The public interest in safely attainable quiet is obvious.

The preferential runway system established by the FAA

for Kennedy Airport is noise-oriented, and so is its regu-

lation requiring large aircraft to enter the Kennedy Air-

port traffic area at not less than 1,500 feet (14 C.F.R. 93.33) ;

the general rule requiring large departing aircraft to

climb to 1500 feet as rapidly as practicable [14 C.F.R.

§ 91.87(f)(2)] serves that purpose as well as others, as

do the tracks established for approach-procedures and for

take-off vectors. The assumption of the Harris Report

that local police power could function cannot be taken

to express the view of the Congress nor to negate either

the content of the statutes, or the practice of their ad-

ministration; no legisiative action was taken on the re-

port.

The town argues from Huron Portland Cement Co. v.

City of Detroit, 1960, 362 U.S. 440, that such local exer-

cises of police power are valid even if they affect in-

strumentalities of commerce. The Court there sustained

a local smoke abatement ordinance as applied to a fed-

erally licensed and enrolled vessel which was subject to

much federal regulation, including annual inspection re-

quirements that extended to its boilers. The Court con-

sidered that the smoke ordinance did not directly regu-

late commerce. The Court noted (362 U.S. at 448) that

ochre tt A le i a

3la

Opinion of Dooling, D. J.

the law did not ‘‘destroy the free right of passage.’’ The

Hempstead Ordinance on the contrary does deny the right

of free passage. The Huron case, it will be seen, did not

hesitate to test the smoke ordinance for its effect on

commerce; the case makes plain that the ordinance in

question to be valid must be not only rooted in a proper

and real local police power interest, but it must also

be free of direct regulation of commerce, it must not bur-

den commerce, and it must not operate in a field fully

occupied by federal legislation.

By the test applied in Head v. New Meaxico Board of

Examiners, 1963, 374 U.S. 424, 429-430, to a state statute

addressed to a public health interest, there is here, on

the present record, that direct conflict between federal

action and the ordinance which requires invalidation of

the ordinance. As the findings explain in detail, the Ordi-

nance forbids flight paths that the FAA has approved for

landing approaches and for take-offs. For example, the

instrument landing system (ILS) approach approved by

the FAA for the left runway on a 220° heading passes

over an outer marker 5.6 miles from the landing threshold

of the runway at 1,692 feet, and the path descends on 2° 45’

glide slope to 218 feet when 0.6 miles from the threshold.

The outer marker is in Hempstead and this ILS approach

could not be used by present day jet aircraft without

violating the ordinance. The ILS approach to the right

runway on a 310° heading, similarly has its outer marker

at 5.6 miles in Hempstead, and descends on a glide slope

of 2° 39 from 1,557 feet at the outer marker to 198 feet

at the middle marker 0.6 miles from the landirg threshold.

What are called ‘‘VOR’’ approaches to the left runway

on 310° heading pass over Hempstead at relatively low

altitudes on approach headings of 321°, 297° and 285°

and at glide slopes not exceeding 3 degrees. All these

landing approaches involve direct conflict with the ordi-

La, SASS TI SA AR PE REN rR Se tS SO

32a

Opinion of Dooling, D. J.

nance. Similarly the take-off procedures involve flight

over Hempstead at altitudes that inevitably produce noise

in excess of the ordinance limits in the Town from the

aircraft of the present day.

The instances cited are the easily visualized direct coi-

lisions that meet the strict test of Florida Lime € Avo-

cado Growers, Inc. v. Paul, 1963, 373 U.S. 132, 142. The

conflict, however, is also subtler. Local initiative in noise

control of aviation is iwherently an effort to regulate a

consequence while disclaiming reguiation of the cause. It

cannot co-exist with a comprehensive system of federa! reg-

ulation of aircraft manufacture (through certificates of

airworthiness) and federai reguletion of air navigation

and air tratiic. Cf. Chicuge £ Southern Air Lines, Inc. v.

Waterman Steamshin Corp., 1948, 333 U.S. 103, 105-106;

Northwest Airlines, Inc. v. Minresota, 1944, 322 U.S. 292.

302-303 (conczrring opinion of Mr. Justice Jackson). What

Mr. Justice Jackson said, cocurring, in the latter case

points up the essential conflict, and beautifully expresses

what is far iruer today (522 U.S. at 303):

‘‘Congress Las recognized the national respon-

sibility for regulating sir commerc>, Federal con-

trol is intensive and exclusive. Piaues do not wander

about in the sky like vagrant clouds. They move

only by federel permission, subject to federal ix-

spection, in the hands of federaily certified per-

sonnel and under an intricate system of federal com-

mcnds. The moment a ship taxis onto a runway

it is caught up ir an elaborate and detailed sys-

tem of controls. It takes off only by imstraction

from the control tower, it travels on prescribed

beams, it may be diverted from its intended land-

ing, and it obeys cignals and orders. Its privileges,

33a

Opinion of Dooling, D. J.

rights and protection, so far as transit is concerned,

it owes to Federal Government alone aud not to any

state governmesi.’’

The Town has presented, with impressive skill and in-

genuity, a program for changing flight patterns at Ken-

nedy Airport, allegedly within the philosophy of the pres-

ent pattern and the capabilities of present-day aircraft,

so as substantially to eliminate fights over Hempstead.

The recor) sapport for the program is far from ade-

quate, and iit appears to make assumptions about cross-

wind and taii-wind tolerances and circling procedures on

tanding and take-off that do not correspond with existing

saie-flying procedures. It would appear too that it over-

looks, in estimating the fraction of time that tail and

cross winds would interdict nse of preferred runways,

that summing of the times that the wind is in a quarter

corresponding to, or perpendicular to, a runway heading

is not enough, because it omits to take account of the fact

that winds in other quarters may contribute components

that belong in the summation cf interdicting conditions.

Moreover, the Town’s program includes suggestions

for diverting traffic over Far Rockaway and Queens that

can not be admitted as a valid part of a professed demon-

stration that such an ordinance is valid, or, at least, not

burdensome to commerce, because it can be complied with;

to contribute to such an at best doubtful argument for

validity, the demonstration would have to assume that

Far Rockaway and Queens have identical ordinances iden-

tically enforced, and then show that compliarce with all

was possible without halting or burdening the use of

navigable air s,»ce.

There are other and momentous cbjections to the Town’s

suggested method of operating the airport. A full scale

study of the traffic pattern of the region would be a

34a

Opinion of Dooling, D. J.

prerequisite to accepting the suggestions as presenting a

means of compliance. In any such examination other

communities would in principle, be entitled to be heard.

Cf. Ashbacker Radio Corp. v. F.C.C., 1945, 326 U.S. 327,

5 U.S.C. $1003 The technical data would have to be

elaborated beyond the present record, complete as it is,

to illuminate the meaning and validity of certain assump-

tions of aircraft capability used in the Town’s suggestions,

and other matters.

But, as indicated above, the very making of the Town’s

suggestion for a new mode of operating the airport to

achieve compliance demonstrates the invalidity of the ordi-

nance. It illustrates forcefully that the ordinance so radi-

cally regulates the use of the navigable air space that a

new plan of landing approaches and take-off procedures

must. be devised and aircraft must be excluded from all

except the upper reaches of the navigable air space over

Hempstead in order to comply with the ordinance.

As the findings indicate, the nature of the case is,

beyond question, such that irreparable injury is implicit

in enforcement of the ordinance.

It is concluded that plaintiffs are entitled to a pre-

liminary injunction against the enforcement of the ordi-

nance and that the Town is not entitled to an injunction

against plaintiffs’ violating the ordinance.

In the light of Rule 65(a)(2) and the divergent posi-

tions of the parties on the question of the availability and

admissibility of further evidence, the question of further

hearing will have to be taken up at counsel’s convenience.

Brooklyn, New York

June 30, 1967.

Joun F. Dootine, Je,

U.S. D. J.

Le ae Ba hn

35a

Constitutional and Statutory Provisions

The relevant previsions of the Federal Aviation Act of

1958, as amended 49 U.S.C. 1301 et seq., are as follows:

49 U.S.C. 1301(18)

‘‘Federal airway’’ means a portion of the navigable

airspace of the United States designated by the Ad-

ministrator as a Federal airway.

49 U.S.C. 1301(24)

‘‘Navigable airspace’? means airspace above the

minimum altitudes of flight prescribed by regulations

issued under this chapter, and shall include airspace

needed to insure safety in take-off and landing of

aircraft.

49 U.S.C. 1303

Consideration of matters in public interest by Ad-

ministrator.

In the exercise and performance of his powers and

duties under this chapter the Administrator shall con-

sider the following, among other things, as being in

the public interest:

(a) The regulation of air commerce in such

manner as to best promote its development and

safety and fulfill the requirements of national de-

fense;

(b) The promotion, encouragement, and develop-

ment of civil seronautics;

(c) The control of the use of the navigable air-

space of the United States and the regulation of

RRA A CIE ik Ris i St San i ict as Mina ae

36a ;

Constitutional and Statutory Provisions

both civil and military operations in such airspace

in the interest of the safety and efficiency of both;

(d) The consolidation of research and develop-

ment with respect to air navigation facilities, as

well as the installation and operation thereof;

(e) The development and operation of a common

system of air traffic control and navigation for both

mnilitary and civil aircraft.

49 U.S.C. 1304

Public right of transit.

There is recognized and declared to exist in behalf

of any citizen of the United States a public right of

freedom of transit through the navigable airspace of

the United States.

49 U.S.C. 1341(a)

(a) Establishment; Administrator; appointment;

powers and duties. .

There is established the Federal Aviation Agency,

referred to in this chapter as the ‘‘Agency’’. The

Agency shall be neaded by an Administrator who shall

be appointed by the President, by and with the advice

and consent of the Senate. The Administrator shall be

responsible for the exercise of all powers and the

discharge of all duties of the Agency, and shall have

authority and control over all personnel and activities

thereof. In the exercise of his duties and the discharge

of his responsibilities under this chapter, the Ad-

ministrator shall not submit his decisions for the ap-

proval of, nor be bound by the decisions or recom-

mendations of, any committee, board, or other organi-

zation created by Executive order.

ai, He tne TN em

37a

Constitutional and Statutory Provisions

49 U.S.C. 1346

Fostering of civil aeronautics and air commerce.

The Administrator is empowered and directed to

encourage and foster the development of civil aero-

nautics and air commerce in the United States and

abroad. |

49 U.S.C. 1348(a), (b), (c), (e)

Airspace control and facilities.

(a) Use of airspace.

The Administrator is authorized and directed to

develop plans for and formulate policy with respect to

the use of the navigable airspace; and assign by rule,

regulation, or order the use of the navigable airspace

under such terms, conditions, and limitations as he

may deem necessary in order to insure the safety of

aircraft and the efficient utilization of such airspace.

He may modify or revoke such assignment when re-

quired in the public interest.

(b) Air navigation facilities.

The Administrator is authorized, within the limits of

available appropriations made by the Congress, (1)

to acquire, establish, and improve air navigation

facilities wherever necessary; (2) to operate and main-

tain such air navigation facilities; (3) to arrange for

publication of aeronautical maps and charts necessary

for the safe and efficient movement of aircraft in air

navigation utilizing the facilities and assistance of

existing agencies of the Government so far as prac-

ticable; and (4) to provide necessary facilities and

personnel for the regulation and protection of air

traffic.

—————————

38a

Constitutional and Statutory Provisions

{c) Air traffic rules.

The Administrator is further authorized and di-

rected t% prescribe air traffic rules and regulations

governing the flight of aircraft, for the navigation,

protection, and identification of aircraft, for the pro-

tection of persons and property on the ground, and for

the efficient utilization of the navigable airspace, in-

cluding rules as to safe altitudes of flight and rules

for the prevention of collision between aircraft and

land or water vehicles, and between aircraft and air-

borne objects.

(e) Exemptions.

The Administrator from time to time may grant

exemptions from the requirements of any rule or regu-

lation prescribed under this subchapter if he finds that

such action would be in the public interest.

49 U.S.C. 1353(a), (b), (c)

Development planning.

(a) Use of navigable airspace; location of land-

ing areas, Federal airways, radar installations, and

air navigation facilities,

The Administrator is directed to make long range

plans for and formulate policy with respect to the

orderly development and use of the navigable airspace,

and the orderly development and location of land areas,

Federal airways, radar installations and all other aids

and facilities for air navigation, as will best meet the

needs of, and serve the interest of civil aeronautics

and national defense, except for those needs of military

agencies which are peculiar to air warfare and pri-

marily of military concern.

Oe neta et ee here 1 or

39a

Constitutional and Statutory Provisions

(b) Aircraft, aircraft engines, propellers, and

appliances. .

The Administrator is empowered to undertake or

supervise such developmental work and service testing

as tends to the creation of improved aircraft, aircraft

engines, propellers, and appliances. For such purpose,

the Administrator is empowered to make purchases

(including exchange) by negotiations, or otherwise, of

experimentai aircraft, aircraft engines, propellers, and

appliances, which seem to offer special advantages to

aeronautics.

(c) Research and development. eps

The Administrator shall develop, modify, test, and

evaluate systems, procedures, facilities, and devices, as

well as define the performance characteristics thereof,

to meet the needs for safe and efficient navigation

except for those needs of military agencies which are

peculiar to air warfare and primarily of military

concern, and select such systems, procedures, facilities,

and devices as will best serve snch needs and will

promote maximum coordinaiion of air traffic controi

and air defense systems. Contracts may be entered

into for this purpose without regard to section 529 of

Title 31....

49 U.S.C. 1354(a)

Other powers and duties of Administrator.

-(a) Generally.

The Administrator is empowered to perform such

acts, to conduct such investigations, to issue and amend

such orders, and to make and amend such general or

special rules, regulations, and procedures, pursuant

to and consistent with the provisions of this chapter,

as he shail deem necessary to carry out the provisions

ne een

40a

Constitutional and Statutory Provisions

of, and to exercise and perform his powers and duties

under, this chapter. |

49 U.S.C. 1371(a)

Certificate of public convenience and necessity.

(a) Essentiality.

No air carrier shall engage in any air transporta-

tion unless there is in force a certificate issued by the

Board authorizing such air carrier to engage in such

transportation.

49 U.S.C. 1371(e) (1)

Terms, conditions, and limitations.

(1) Each certificate issued under this section shall

apecify the terminal points and intermediate points, if

any, between which the air carrier is authorized to

engage in air transportation and the service to be

rendered; and there shall be attached to the exercise of |

the privileges granted by the certificate, or amendment .

thereto, such reasonable terms, conditions, and limita-

tions as the public interest may require.

49 U.S.C. 1423(a) (1)

(a) Authorization to issue; application; investi-

gation; tests; issuance of type certificate.

(1) The Administrator is empowered to issue type

certificates for aircraft, aircraft engines, and propel-

lers; to specify in regulations the appliances for which

the issuance of type certificates is reasonably required

in the interest of safety; and to issue such certificates

for appliances so specified.

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4la

Constitutional and Statutory Provisions

) 49 U.S.C. 1508(a)

Declaration of national sovereignty in air space;

operation of foreign aircraft.

(a) The United States of America is declared to

possess and exercise complete and exclusive national

sovereignty in the airspace of the United States, in-

cluding the airspace above ail inland waters and the

airspace those portions of the adjacent marginal

high seas, bays and lakes, over which by international

law or treaty or convention the United States ex-

ercises national jurisdiction. Air craft of the armed

forces of any foreign nation shall not be navigated

in the United States, including the Canal Zone,

except in accordance with an authorization granted

by the Secretary of State.

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42a

Judgment of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuir

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 seventeenth day of July, one

thousand nine hundred and sixty-eight.

Present:

Hon. J. Josern Sirs,

Hon. Irvine R. Kaurman,

Hon. Pau R. Hays,

Circuit Judges.

rev

American Areuines, Inc., et al., Toe Port or New York

Avutuoriry, and Cuarues H. Rusy, et al, |

Plaintiff-Appellees,

THe ADMINISTRATOR OF THE F'epERAL AviaTION AGENCY,

_ Intervenor-Appellee,

against

Town or HempsteaD, Paumer D. Farrtneton, as Presiding

Supervisor of the Town of Hempstead, Rate G. Caso,

as Supervisor of the Town of Hempstead, Joun H. Ben-

ort, Easa Basa, James P. Nienorr, and Grorce A. Mur-

pHy, as Councilmen of the Town Attorney of the Town

of Hempstead,

Defendants-Appellants.

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Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the Unitec States District Court for the

FKastern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and devreed that the order of said District Court

be and it hereby is affirmed with costs against the appel-

lants.

A. Danret Fosaro,

Clerk.

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