# Petition for Writ of Certiorari — Town of Hempstead v. American Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0259%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1017 ## Text (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 , 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. lee usctnnssnusnmnanmmentnenememen anne a a 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. PII nnn nance nee II cs SHA till sia dicbbtaatisesta wlan 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. ft Vw 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. Sine cate ie ers Oe ee ee ee ee Loe en ee en eT SB me. " ee ees aR “ERE Re cD PO Oe ONE FTP Ae bel . cecil --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0259%3A1. Public record. Not legal advice.