Petition for Writ of Certiorari — City of Dallas v. Southwest Airlines Co.

Supreme Court brief1974

Ask Donna

What actually matters in this document.

Text

IN THE MICHAEL RODAK, JR..CLERY

Supreme Court of the Clnuited

OCTOBER TI RM. 1974

No. 74- 32 4

THE CITY OF DALLAS. TEXAS.

THE CITY OF FORT WORTH, TEXAS,

AND THE DALLAS-FORT WORTH

REGIONAL AIRPORT BOARD.

Petitioners,

SOUTHWEST AIRLINES CO.. and

TEXAS AERONAUTICS COMMISSION,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

N. ALEX BICKLEY. City Attomey ERWIN N. GRISWOLD

City of Dallas, Texas JAMES M. BURGER

501 City Hall Reavis, Pogue. Neal and Rose

Dallas, Texas 75201 1100 Connecticut Avenue, N.W.

S. G. JOHNDROE, JR.. City Attorney Washington, DL. 20056

City of Fort Worth, Texas CHARLES S. RHYNE

1000 Throckmorton Street COURTS OULAHAN

Fort Worth, Texas 76102 ALFRED J. TIGHE., JR.

LEE E. HOLT. Legal Counsel DAVID M. DIXON

Dallas-Fort Worth Regional Rhyne & Rhyne

Airport Board 400 Hill Building

P.O. Drawer DFW 839 Seventeenth Street, N.W.

Dallas-Fort Worth Airport Washington. D.C. 20006

Texas 75261

( @ CLB PUBLISHERS e LAW PRINTING CO e '.%. 49? OF 35

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION |. .

(a)

TABLE OF CONTENTS

THE COURT OF APPEALS, BY INTER-

PRETING A STATE AGENCY ORDER SO

AS TO VOID PART OF THE NATIONAL

AIRPORT SYSTEM PLAN, HAS IGNORED

FEDERAL PRE-EMPTION OF THE FIELD

OF AIR SAFETY. AIRPORT CONTROL

AND NATIONAL AIR COMMERCE

A. Preemption of airspace and airport

control has developed as an integral part

of federal control of air commerce and

air safety, culminating in an established

federal policy.

B. The Congressional pre-emption of the

field in airport planning has been imple-

mented in this case by federal administra-

tive action.

he overriding factors of air safety

and efficient utilization of airspace

required pre-emption by federal

administrative action. ..............

» The Dallas-Fort Worth Airport de-

velopment was pursuant to. and in

accord with, the National Airport

ere er ee ees Se,

-4

oo 0 awe

(ti)

Page

C. Since pre-emption is a matter of substance

and not of form, the federal govemment

has occupied the field, and therefore, con-

flicting state orders are anullity. .............- 37

D. The decision of the Court of Appeals is in

direct conflict with this Court's decision

in Burbank v. Lockheed Air Terminal. ....... 4]

E. The Order of the TAC, as construed by

the Court below, creates an undue and un-

lawful burden on interstate commerce. ......... 4?

F. Determination of the reasonableness of

airport use classifications is within the

primary administrative jurisdiction of

FAA, a fact ignored by the Court below. ........ 43

ll. THE DECISION BELOW IS IN DIRECT

CONFLICT WITH A RECENT DECISION

OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT. ......... 48

Ill. THE COURT OF APPEALS EXCEEDED

THE PROPER SCOPE OF JUDICIAL

REVIEW IN UNNECESSARILY DECIDING

QUESTIONS OF STATE LAW. ................ 50

IV.AN ORDER OF A STATE AGENCY CON-

FERRING THE RIGHT TO “PERPETUAL”

AIRPORT USE WITHOUT NOTICE, HEAR-

ING, RECORD, EVIDENCE OR PARTIES IS

VOID; HOWEVER, THE COURT BELOW

Bo eee Pee eee eT eee.

ee MEEVEE CEE UV EER eee Te eee 5%

OL _

(iii)

TABLE OF AUTHORITIES

Cases:

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

New York, 305 F. Supp. 93 (E.D.N.Y. 1969) .......... 45

Airport Commission of Forsyth County v. C.A.B.,

300 F.2d 185 (4th Cir. 1962) .................... 26

Burbank v. Lockheed Air Terminal, 411 U.S.624 ...... Passim

City of Tacoma v. Taxpayers of Tacoma, 357 USS.

DP GANS eC aad era eA ey wees 24

Florida Lime & Avocado Growers, Inc. v. Paul, 373

MRE wine Sareg fre Cee ete ghee San ait 37

Hines v. Davidowitz, 312 U.S. 52 ee Oe EE

Interstate Commerce Commission v. Louisville &

On UM oe 55

Ivanhoe Irrigation District v. McCracken, 357 US.

SEE HH Tika AH bd Pa ae ink BOW eed bso boca cs 40

Lockheed Air Terminal v. City of Burbank, 318 F.

Supp. 914 (C.D. Cal. 1970) ...................... 43

Northwest Airlines, Inc. v. Minnesota, 322 U.S.292 ........ 37

Railroad Commissien of Texas v. Pullman Co., 312

mines Le eT ee ee 50

Southern Ry. v. Virginia ex rel. Shirley, 290 U.S.

Mt Feb wo ie dee eel 665.0 ores Pode eo 56

(iv)

Page

United States v. City of New Haven, 496 F.2d 452

(2d Cir. 1974), appeal filed sub nom. Town of

East Haven v. United States, 43 U.S.L.W. 3124

(U.S. July 30, 1974, No. 74-37) ............2-.4- 48, 49

Se eens ©. BOR, Fee es ED ek ec tee ate aes 57

United States v. Western Pacific R.R., 352 U.S.59 ......... 44

Statutes and Ordinances:

Air Commerce Act of 1926, ch. 344, 44 Stat. 568 ......... 17

Airport and Airway Development Act of 1970, 49

U.S.C. §1701 ef seq. NE SO ew a passim

Cities of Dallas and Fort Worth, 1968 Regional Air-

port Concurrent Bond Ordinance ...........-.-- passim

Civil Aeronautics Act of 1938, ch. 601, 52 Stat.973 ... 17. 18

Federal Airport Act, ch. 251, 60 Stat. 170 (1946) ..... passim

Federal Aviation Act of 1958, 49 U.S.C. §1301 et

I I a as ans passim

Noise Control Act of 1972, 42 U.S.C. §4901 et

Ne ne Nar erick s 5 Vein ak kw a's 15, 16

National Environmental Policy Act of 1969, 42

COO a eee wen seca 33

Texas Aeronautics Commission Act, Vernon’s Ann.

Civ. St. Art. 46c-1 et seg. (1974 Supp.) ..........- passim

Texas Municipal Airports Act, Vernon’s Ann. Civ. St.

Re ee I RETEOD wx e reese e sec cense passim

po Tl cree ea ee 2

OCOD. 6 vec cee ae ee erence essees 6

Po me ek | ae ae ar ais ie ee ee 6

United States Constitution, Amend. XIV................ 56

{vy

Page

Miscellaneous:

Civil Aeronautics Authority, Airport Survey, Report

to the Congress of the United States (1939) .... 17, 18, 19

Civil Aeronautics Board, Dallas-Fort Worth Regional

Airport Investigation.

Order E-18719 (August 10, 1962) .............. 27.28

Order F-21341 (September 30,1964) .............. 28

Civil Aeronautics Board and Federal Aviation

Agency, Joint Statement (April 24,1961) 2. 0 ....... 25

ACF. §§ 1S. apd US2(I9TA) ow. cece 34. 40

Dallas-Fort Weith Regional Airport Board, Over-All

Freliminary Plan for Construction of the Dalias-

Fort Worth Regional Airport (Sept. 1968) ............- 3]

Department of Transportation. Federal Aviation

Administration, Airport Design Standards

General Aviation Airports - Basic and General

Transport, FAA Advisory Circular 150/5306-6

ee AS ee ie pee 33

Department of Transportation, Federal Aviation

Administration. 1966/1967 National Airport Plan

th dic smatessgnie, AAO E ETS Or OE OT re eee 30

Department of Transportation, Federal Aviation

Administration, 1972 National Airport System

Rats CC ee Wn cin Sn gel on ren a an Oy 32. 35, 38

Federal Aviation Agency, National Airport Plan FY

gricghats nyt Oe Ee Ce ATE aA O 29

Federal Aviation Agency, 1965 National Airport

Pe NTE ae dciwe cra ieee ec s 28, 29

Hearings on H.R. 9738 Before the House Comm. on

Interstate and Foreign Commerce. 75th ang. 3d

ce a a gars BRR EET Oe ee eer epee 18

Hearings on H.R. 12711 Before the Subcomm. of the

Senate Comm. on Appropriations. Independent

Offices Appropriation 1962, 87th Cong. 2d Sess. ........ A |

(vi)

House Report No. 2360, 85th Cong., 2d Sess.

SOU, Sse cob cwa eee eeu eRe eee Ras eee 2

Legislative History of the Federal Airport Act. Pub.

L. No. 377, 79th Cong., 2d Sess. ........-.----- 19.6

2 U.S. Code Cong. & Ad. News 3741-3742(1958) ......... 22

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No.

THE CITY OF DALLAS, TEXAS.

THE CITY OF FORT WORTH. TEXAS.

AND THE DALLAS-FORT WORTH

REGIONAL AIRPORT BOARD.

Petitioners,

SOUTHWEST AIRLINES CO.. and

TEXAS AERONAUTICS COMMISSION.

Respondents

-——-

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners. the City of Dallas. Texas (Dallas). the

City of Fort Worth. Texas (Fort Worth). and the

Dallas-Fort Worth Regional Airport Board (Airport

Board). respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United

“

States Court of Appeals for the Fifth Circuit entered in

this proceeding on May 31, 1974. This case involves an

overriding question of federal pre-emption of airspace

and air facilities which only this Court can resolve. In

addition, the decision in this case is in contlict with a

receit decision of the Court of Appeals for the Second

Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals. 494 F.2d 772,

rehearing denied. 496 F.2d 1407 (1974). appears in

Appendix A. The opinion of the United States District

Court for the Northern District of Texas. 371 F. Supp.

1015 (1973), appears in Appendix B.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on May 31. 1974. A timely petition

for rehearing en banc was denied on June 24. 1974.

This petition tor certiorari is filed within 90 days of

that date. This Court’s jurisdiction is invoked under 28

U.S.C. §125401) (1970)

QUESTIONS PRESENTED

1. Whether federal law which grants the Federal]

Aviation Administration exclusive jurisdiction over the

safe and efficient conduct. of air commerce — has

pre-empted the field of airport control and thus

Prevents implementation of an order of 4 state

aeronautical authority in a manrer which. as interpreted

below, nullifies part of the Natignal Airport System

Plan. promulgated and implemented pursuant to federal

law.

2. Whether a determination of the reasonableness oj

airport use classifications adopted by proprietors of a

lederally funded airport. in cooperation with the FAA

in implementation of the National Airport System Plan.

is a matter within the primary administrative jurisdic-

tion of the FAA under the Airport and Airway

Development Act.

3. Whether an order of a state aeronautical authority

burdens interstate commerce and causes Dallas to

violate its federal agreements. where such order (1) is

construed as directing municipal airport authorities to

permit a scheduled intrastate carrier to operate in

perpetuity from an iirpurt being closed to all scheduled

air carriers by its m inicipa!l proprietor under decisions

of the FAA pursuant to the National Airport System

Plan. and (2) results in an exclusive use of that airport

by scheduled intrastate carriers and ant . ast discrimi-

nation against scheduled interstate carriers.

4. Whether the court below exceeded the proper

scope of judicial revizw when it construed matters of

state law unnecessar’ to resolution of the federal

questions upon which jurisdiction was based, where

such determinations affect the scope of authority over

airports as between proprietor home-rule municipalities

and a state aeronautical agency.

5. Whether the Court of Appeals incorrectly decided

the state law by relying on an erroneous interpretation

of an order of a state agency adopted without notice or

hearing, contrary to requirements of due process and

the applicable state statute.

STATUTORY PROVISIONS INVOLVED

1. The Federal Aviation Act of 1958. 49 USC.

§ 1301 er seq. (1970).

2. The Airport and Airway Development Act of

1970. 49 U.S.C. 81701 er seg. (1970). formerly the

Federal Airport Act. ch. 251. 60 Stat. 170 (1946).

3. Texas Aeronautics Commission Act. Vernon's

Texas Ann. Civ. St. Art. 46c-1 ef seg. (1974 Supp.)

4. Texas Municipal Airports Act. Vernon’s Ann. Civ.

St. Art. 46d-1 e7 seq. (1969).

Relevant sections of the statutes are set out in tlic

Appendix.

STATEMENT OF THE CASE

This case involves the control and use of the world’s

largest airport the Dallas-Port Worth Regional Airport

(Regional Airport). This airport was constructed and

financed. at a cost of over one billion dollars. by the

cities of Dallas and Fort Worth. in compliance with the

requirements of the federal government. pursuant to

the National Airport System Plan. Federal Jaw grants

the Federal Aviation Administration (FAA) exclusive

jurisdiction over the safe and efficient conduct of air

commerce, and requires the FAA to establish and insure

the implementation of the National Airport System

Plan (Plan). The effect is a pervasive and complete

federal scheme for airspace safety and management. and

for the planning. funding and regulation of public

airports.

Pursuant to the Plan. the cities. in cooperation with

the FAA and the Civil Aeronautics Board (CAB).

assigned specific functions to each airport integrated

into the Dallas-Fort Worth complex of airports. The

Plan and the regional airport project have been

frustrated by an order of the Texas Aeronautics

Commission (TAC). which. as construed below. directs

a scheduled intrastate carrier to provide services in

perpetuity from an area airport being closed to

scheduled carriers pursuant to the Plan This state

action has prevented the planned and agreed move of

all scheduled carriers io the Regional Airport as

required by the Plan. The court below. failing to

recognize federal pre-emption and failing to defer to the

primary jurisdiction of the FAA. upheld the order. At

issue in this case is the right of the federal government

and the municipal proprietors of airports developed in

the Dallas-Fort Worth megalopolis pursuant to the

National Airport System Plan jointly to regulate the use

of those airports.

In this case, local enforcement of the Plan

necessitated the filing of Petitioners’ complaint against

Southwest Airlines Co. (Southwest), seeking a declara-

tion that the phase-out provision of their 1968 Regional

Airport Concurrent Bond Ordinance (Bond Ordinance)

was valid to preclude Southwest from continuing to

provide scheduled air service at Dallas Love Field,

contrary to the Plan. Jurisdiction in the District Court

was founded on the existence of a federal question and

amount in controversy, 28 U.S.C. §1331 (1970). and

on an act of Congress regulating commerce. 28 U.S.C.

§ 1337 (1970).

Under the Plan. Regional Airport ‘was to be

constructed and designated as the single airport to serve

the scheduled air carrier needs of the two cities and the

region. Under the Plan, also. the airports previously in

existence (Love Field. Redbird Airport. and Meacham

Field) were to be used for ‘axi, charter. private and

other non-scheduled forms of air transportation.’ The

decisions of the courts below nullify this part of the

FAA National Airport System Plan.

' Fort Worth’s Greater Southwest International Airport (GSIA)

has heen closed pursuant to the Plan Secause, inter alia, of satety

considerations involving an overlap of airspace requirements with

tre Regional Airport.

In the early 1960's, the FAA and CAB both

determined that Dallas and Fort Worth should receive

scheduled airline service at a single airport. Limitations

of the existing facilities at Love Field and Greater

Southwest International Airport (GSIA). as well as

regional rivalries. made construction of a Single new

scheduled airline airport mandatory. At that time. the

FAA considered that the problem would be resolved by

action of the CAB. as further detailed herein.

Planning for the Regional Airport was fully coordin-

ated by Dallas and Fort Worth? with both the regional

and Washington offices of the FAA in accordance with the

National Airport Plans prepared annually by the FAA

during 1963-1968. (R. 3906-3907)* In 1966. before

actual construction of the new Regional Airport was

commenced, the FAA conducted a “Simulation Study”

of the total proposed air transportation system for the

area, at a cost of approximately one quarter million

dollars, to determine whether the proposal constituted

the most efficient use of airspace in the region. (R.

555). From that study. the FAA determined that the

?The plan initially was to create a separate governmental

entity. However, after a Texas constitutional amendment and

enactment of an enabling statute. a further prerequisite election

in Dallas County defeated the proposal. On April 15, 1968,

Dallas and Fort Worth executed a new contract providing for

construction of the Regional Airport as a joint venture and for

establishment of the Dallas-Fort Worth Regional Airport Board,

an administrative arm of the two cities. to plan and operate the

airport.

*References to the Record below, as set out in the Appendix

filed in the Court of Appeals, are denoted herein as “R.”

operation of the proposed Regional Airport for

scheduled air carrier service, and the operation of the

other airports in the system for only non-scheduled

forms of air transportation, were consistent with

maximum air safety and were required to meet

projected needs for the geographical region. (R. 555,

556). Construction? of the Regional Airport and its

designation as the single airport to serve the scheduled

air carrier needs of the two cities constitute an integral

part of the National Airport System Plan, developed by

the FAA.’

Thirteen federal grants in aid aggregating in excess of

$60 million have been approved for the Regional

Airport under so-called “sponsor agreements” between

the FAA and the cities. Total costs thus tar are over

one billion dollars. In accordance with agreements

between the cities and eight scheduled interstate

airlines’ serving Dallas and Fort Worth. the latter are to

3Upon approval by the FAA of the plan for development of

the Regional Airport, the first federal grant in aid was made.

effective June 27, 1966. Actual construction commenced in

1968. Aircraft operations commenced January 13, 1974.

“The National Airport Plan, provided for in the Federal

Airport Act, ch. 251, §3, 60 Stat. 170 (1946), is designated the

National Airport System Plan in the Airport and Airways

Development Act of 1970. For purposes here, the concepts

under each statute are substantially the same, and the term

“Plan” under each statute is used interchangeably.

SThese carriers—American, Braniff, Texas International, Delta,

Continental. Eastern. Frontier ang Ozark—conduct a substantial

portion of all United States air commerce.

absorb the costs represented by the revenue bonds in

the event that other airport revenues are insufficient.

The iederal aid of over $60 million afforded by the

FAA for the Regional Airport was predicated upon a

series of assurances that all scheduled airline activity

would be conducted at the Regional Airport. {R. 897).

Moreover, continuing federal aid for the pre-existing

airpert facilities in the Dallas-Fort Worth system also

was predicated upon this commitment because a total

system plan for the entire area was involved. (R. 560).

Further, as a condition precedent to the approval of the

airport development project by the FAA. assurances

were executed by the cities that “the airport to which

the project for airport development relates will be

available for public use on fair and reasonable terms

and without unjust discrimination.’’®

The agreements with the interstate carriers, the

sponsor agreements with the FAA, and the revenue and

general bond ordinances were entered into prior to

March, 1970. Each implemented the comprehensive air

transportation system plan for the Dallas-Fort Worth

area. Each was a necessary step in providing that the

Regional Airport would be the single airport to serve

the scheduled air carrier needs for Dallas and Fort

Worth. All of these steps were approved by the FAA.

°As required by 49 U.S.C. §1718 (1) (1970), formerly 49

US.C. $1110. Such assurances have been made by the Cities ot

Dalizs and Fort Worth for the Regional Airport as well as for

each of the pre-existing airports.

They constituted an integral part of federal control over

aviation and facilities used therefor and of the air

service and Airport Plans for the nation as well.

On June 18, 1971, five years after the federal Plan

had been adopted and implementation commenced,

Southwest began serving Dallas/Fort Worth, Houston.

and San Antonio on a scheduled basis in competition

with five interstate carriers. Southwest operates under

Certificate of Public Convenience and Necessity No. 22,

issued by the Texas Aeronautics Commission. This

certificate authorizes Southwest to begin and terminate

service at any airport serving those points but does not

direct the use of any particular airport. In 1971

Southwest served Dallas/Fort Worth through Love

Field, where it obtained a sublease of the facilities of

Delta Air Lines, not the airport proprietor. (R.3789).

On November 12, 1971, the TAC. without notice to

any parties and without public hearing. passed its

Minute Order No. 22 to the effect that no TAC

certificated air carrier could change its point of service

(airport) without permission of the TAC. (R. 4368). It

is the effect of this order which is at issue in this case.

Under Texas law (Vernon’s Ann. Civ. St. Art. 46d-7a

(1969)), and the federal law (49 U.S.C. §1712(c)

(1970)), the municipalities and the federal government

are cooperating units in developing a nationwide system

of public airports and in designating the specific

aeronautical role of each airport within that system.

Dallas and Fort Worth have acted in strict accordance

with their power and responsibility under the Texas

Municipai Airports Act. In accordance with the

applicable federal laws, the cities and Regional Airport

Board coordinated their planning with the FAA and

CAB. Together. these governmental authorities exer-

cised their state and federal authority and responsibility

to construct, maintain and determine the appropriate

uses of public airports, owned by the cities and funded

in part by the rederal government. Recognizing this, the

Attorney Geneva! of the State of Texas approved the

1968 Bond Ordinance.’ Said ordinance inciuded the

provision that scheduled air carriers. including . TAC

certified carriers. would be phased out of Love Field.

(R. 2231). On this representation by the Attorney

General. over $400 million in revenue bonds have been

"This ordinance, adopted ccncurrently by Dallas and Fort

Worth on November 11, 1968, authorized the issuance of

Dallas-Fort Worth Regional Airport Joint Revenue Bonds for the

construction of the Regional Airport, and provided, inter alia,

that:

“.., the Cities, each with respect to its own individually

owned airport facilities,... hereby covenant and agree that

from and after the effective date of this Ordinance, shall

take such steps as may be necessary, appropriate, and

legally permissible (without violating presently outstanding

legal commitments or covenants prohibiting such action),

to provide for the orderly, efficient and effective phase-out

at Love Field, Redbird, GSIA and Meacham Field, of any

and all Certificated Air Carrier Services, and to transfer

such activities to the Regional Airport effective upon the

beginning of operations at the Regional Airport.” (R.

2147, 2195).

sold, federal funds of $60 million have been allocated

in reliance upon the sponsorship ag.eements by the

cities, and a total of one billion dollars, including

interest, committed.

Southwest refuses to serve Dallas through the new

Regional Airport as required by the comprehensive air

transportation system Plan. Southwest claims that, as an

intrastate carrier, the TAC has given it a “right” to use

Love Field so long as that field is an airport, and that

neither the cities nor the federal government may

determine otherwise. App. B, p. 2b.

The District Court and the Court of Appeals have

upheld this claim of a Southwesi right to se Love

Field in perpetuity, even though Southwest had no

agreement with the owning city® for such use. Such use

violates the comprehensive air transportation system

Plan established by the cities, and approved by the

FAA as part of the National Airport System Plan. Such

use constitutes an exclusive right in the use of Love

Field and discriminates against interstate carriers which

are required to use the Regional Airport under the Plan.

SAs Delta has transferred its operations from Love Field to

the Regional Airport, its lease at Love Field has been terminated.

Southwest is presently operating pursuant to a lease with Dallas,

entered into after the District Court ordered that Dallas could

not lawfully exclude Southwest “*. .. from the use of Love Field,

Dallas, Texas, and its airport facilities so long as Love Field

remains open as an airport.” App. B., p. 38b. The lease is

contingent upon a final decision in this case.

It further violates the Airport and Airway Development

Act of 1970, (AADA), 49 U.S.C. §1701 e¢ seq. (1970),

and its predecessor the Federa! Airport Act, ch. 251, 60

Stat. 170 (1946) and the Federal Aviation Act of 1958.

49 U.S.C. §1301 ef seg. (1970) and will thwart the

federal policy to insure a coordinated adequate national

system of airports and airways. It constitutes an

unlawful extension of the Texas statute. under which

the TAC purports to function.

The disastrous effect of the courts’ decisions is

already apparent. Other scheduled air carriers now claim

that they may not be excluded from Love Field if

Southwest is allowed to remain. As the Court of

Appeals itself noted, Braniff refused to close its services

from Love, and Texas International has reopened

there.” In addition, American and Delta have sought to

enjoin Dallas and Fort Worth from breaching their

commitments, and American has refused to pay certain

landing fee obligations at the Regional Airport.’® Not

*App. A, p.2a nl. Braniff served Love Field from the

opening of Regional Airport on January 13, 1974, until

September 1, 1974. When Braniff discontinued service, South-

west significantly increased its service at Love Field. Texas

International also is providing service at Love. The Cities have no

assurance that Braniff will not attempt to re-institute service at

Love Field in the future or that other CAB carriers will not do

so as Southwest secures new intrastate routes competitive to

those of CAB carriers.

Delta and American sued to enjoin Fort Worth, Dallas and

Braniff for breach of agreement relative to the transfer of all

“certificated air carrier” services to the Regional Airport. Fort

Worth will counterclaim against American and cross-claim against

Braniff. [N.D. Texas. C.A. 3-74-401-C (formerly C.A. 4-74-84),

filed March 26, 1974]. This suit has been consolidated in the

Dallas Division of the District Court with Southwest Airlines et

al. v. The City of Dallas (C.A. 3-74-344-C. N.D. Texas. filed

April 16, 1974).

only does this have an adverse economic impact upon

the Regional Airport and its interstate air carrier users,

it also thwarts the comprehensive airport system Plan

which the FAA and CAB determined to be consistent

with the attainment of economic air transportation

service, efficient airspace utilization, and maximum air

safety. (R. 584-585).

REASONS FOR GRANTING THE WRIT

The Court of Appeals has decided an important

question of the interrelation of federal and state law in

a way which ignores the established law as to

pre-emption, and frustrates an important federal policy

which has overriding national significance. !t also

ignores, and is in conflict with, the approach taken by

this Court in Burbank vy. Lockheed Air Terminal. 411

U.S. 624.

Further, the decision below is in direct conflict with

a recent decision of the Court of Appeals for the

Second Circuit which held that the field of regulation

of navigable airspace and airport operations had been

entirely pre :mpted by federal law.

THE COURT OF APPEALS, BY _INTER-

PRETING A STATE AGENCY ORDER SO AS

TO VOID PART OF THE NATIONAL AIR-

PORT SYSTEM PLAN, HAS IGNORED

FEDERAL PRE-EMPTION OF THE FIELD OF

AIR SAFETY, AIRPORT CONTROL AND

NATIONAL AIR COMMERCE.

Burbank vy, Lockheed Air Terminal. 41} U.S. 624.

leaves no doubt that no state or local agency may be

allowed to exercise power which would in any way

conflict with or impede the FAA’s exclusive jurisdiction

to efficiently and safely manage the navigable airspace.

In Burbank the airspace management power was

supplemented by the additional powers given the FAA

under the Noise Control Act of 1972. but the Court

obviously concluded that even in the absence of the

Noise Control Act. state and local authorities could not

be allowed to regulate any activity which would

infringe on the FAA’s airspace Management function.

Id. at 640.

In the instant case the very same airspace manage-

ment power of the FAA jis infringed upon by the

authority found by the Court of Appeals to be vested

in the TAC. This is necessarily so inasmuch as that

court concluded that the TAC had directed Southwest

to serve Love Field and that the Ordinance excluding

all scheduled air carrier flights was ineffective. even

though this exclusion was an integral part of the Plan

developed by the FAA for the efficient and safe

utilization of the airspace in the Dallas-Fort Worth area

and even though the FAA insisted on such exclusion as

a condition to its approval of the new Regional Airport.

But as in Burbank, the airspace control power is not

the only basis for finding pre-emption. There, the Noise

Control Act formed an additional and substantial basis

for the finding. The Federal Airport Act and the AADA

form substantial additional bases for a finding of

pre-emption here.

A.Pre-emption of airspace and airport control

has developed as an integral part of federal

control of air commerce and air safety,

culminating in an established federal policy.

The vasis for federal pre-emption in this field can be

understood through a review of the history and

development of airports as a part of federal control of

air commerce. By slow but steady steps, a federal

policy with respect to airports has developed. The field

of airport policy, which was once largely local, has

clearly been fully occupied by the federal government.

The determination to take over complete control of

airport policy. particularly at a great complex like the

Dallas-Fort Worth Regional Airport, is now so clear that

it should be beyond frustration by state action.

In aeronautical history, airports were at first local

ventures, often municipally owned and financed.

Municipalities provided airports as a municipal utility

without benefit of financial assistance from the federal

government. The Air Commerce Act of 1926, ch. 344,

44 Stat. 568, was enacted to encourage and regulate the

use of aircraft in commerce and for other purposes. The

first evidence of federal concern about airports is found

in Section 2 of that Act which required the Secretary

of Commerce to foster air commerce. inter alia. by

encouraging the establishment of airports. Section 5(b)

also authorized the Secretary to designate and establish

civil airways and, within the limits of available funds. to

establish, operate and maintain alvin such airways all

necessary air navigation facilities except airports.

It was soon recognized, however, that the airport is

basic to all aeronautical activity. Civil Aeronautics

Authority, Airport Survey, Report to the Congress of

the United States 1-2 (1939). Legislative developments

over the past thirty-six years show clearly the pervasive

character of the development of federal control of

airspace and airports. and in this process the role of

municipalities in sponsoring airports has become one of

cooperating with the federal government.

The first substantial step towards over-all federal inter-

est in aviation is found in the Civil Aeronautics Act of

1938, ch. 601, 52 Stat. 973 (now Federal Aviation Act of

1958), which created the Civil Aeronautics Authority

(CAA) as a separate agency. Its purpose was. inter alia.

to encourage and foster the development of civil

aeronautics and air commerce in the United States and

abroad, and to encourage the establishment of civil

airways, landing areas, and other air navigation

facilities. At that time, there were some 200 airports

on the established airways. which had been procured.

made available and maintained mostly “by the

expenditure of political subdivisions of the States.

counties, cities and the like.” Hearings on H.R. 9738

Before the House Comm. on Interstate and Foreign

Commerce, 75th Cong.. 3d Sess. 110 (1938).

A key provision of the 1938 Act, §302(c), directed

the Administrator of the CAA to make a field survey

of the existing system of airports. He then was

required to present to the Congress, not later than

February 1, 1939, definite recommendations (1) as to

whether the federal government should participate in

the construction, improvement, development, operation

or maintenance of a national system of airports, and

(2) if federal participation was recommended, the

extent to which, and the manner in which, the federal

government should participate. The CAA. in

accordance with this direction. submitted its Airport

Survey, Report to the Congress of the United States,

supra.

The survey disclosed, inter alia, that, while municipal

airports had received cooperation from the Army and

Post Office air mail service, the first financial support

was given through the Civil Works Administration in

1933, followed by the Federal Emergency Relict

Administration in April 1934, and the Works Progress

Administration in 1935 (Airport Survey. supra, 10-12.

1S). The CAA submitted sixteen recommendations

which were based on the principle that the development

and maintenance of an adequate system of airports

should be recognized as a matter of national concern

and a proper object of federal expenditures.

The march of events inevitably led to greater federal

interest in and concern about airports. In 1945. as

World War Il was coming to a close. the subject of

federal aid for public airports again received the

attention of Congress. At that time the Secretary of

Commerce stated:

“Mr. Chairman, the legislation before — this

committee recognizes that civil aviation has

become of national importance. It represents the

first step in our 40 years of aviation history

toward the establishment of a long-range Federal-

aid program for the construction of airports. Its

importance cannot be overemphasized. for it will

govern the development of the American airport

system for many vears to come.””!!

The hearings finally led to the Federal Airport Act of

1946, Which evidenced ~~ federal ~=concern and

movement into the field. This was the first comprehen-

sive provision of federal aid for the development of

public airports. Under the law. the Administrator of

Civil Aeronautics'? was directed to prepare and revise

annually “a national plan for the development of public

"2 Legislative History of the Federal Airport Act, Pub. L.

No. 377, 79th Cong., 2d Sess. 13.

Tiris title was changed to Administrator of the Federal

Aviation Administration by Sec. 301 of the Federal Aviation Act

of 1958. 49 USC. $1341 (1970).

airports.” ch. 251, §3(a), 60 Stat. 170 (1946). In order

to bring about a nationwide system of public airports

adequate to meet the needs of civil aeronautics, the

Administrator was authorized to make grants of funds

to sponsors for airport development. Ch. 251, §4, 60

Stat. 170 (1946). Municipalities were authorized to

sponsor airport rrojects and enter into grant agreements

directly with the federal government, following the

principle that “it is the community that pays and it is

fair that its wishes be of primary importance.”'* But

the responsibility for the overall National Airport Plan

remained with the federal government.'* Where federal

aid is to be expanded. the pervasive character of the

jederal control is clear. Moreover, the law provided

specific conditions for project sponsorship and grant

agreements relative to airport uses and provided that

grant agreements constitute an obligation of the United

States and of the sponsors. Ch. 251, §§ I1. 12. 60

Stat. 170 (1946).

This statute was amended a number of times. One of

the most important amendments was the Federal

Aviation Act of 1958. 49 U.S.C. §1301 ef sea. (1970).

This statute continued the Civil Aeronautics Board and.

by Section 301. established the Federal Aviation

Agency, headed by an Administrator who is “re-

sponsible for the exercise of all powers” of the Agency.

139 Legislative History, supra, at 779. (Congressman

Randolph).

141 Legislative History. supra, at 53.

—

In its Declaration of Policy in this Act. Congress

provided as follows:

“Sec. 103. In the exercise and performance of

his powers and duties under this Act the

Administrator shall consider the following. among

other things, as being in the public interest:

* eK kK &

“(c) The control of the use of the navigable

airspace of the United States and the regulation of

both civil and military operations in such airspace

in the interest of the safety and efficiency of

both.”

By Section 307 of the Act. Congress provided:

“(a) The Administratcr 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.”

The intention of Congress to occupy the whole field

of airport control is further illustrated by the

Committee Reports.'*

'SSee H.R. Rep. No. 2360, 85th Cong.. 2d Sess. (1958),

where the House Comm. on Interstate and Foreign Commerce

said that “the Administrator of the new Federal Aviation

Agency... would be charged with the management of the

national airspace, including responsibility for establishing and

enforcing air traffic rules....” The report further provided that

the head of “the new Federal Aviation Agency” would have

“plenary authority to

(a) Allocate airspace and control its use by both civil and

military aircraft:

(continued)

Under these statutes, the Administrator complied

with his duty to make airport plans and these were

duly reported to Congress. Congress appropriated large

sums of money for airport development, and the

Administrator made many grants in accordance with the

Act. Finally, in 1970, the Federal Airport Act of 1946

was repealed and was superseded by the Airport and

Airway Development Act of 1970 (AADA), 49 U.S.C.

§1701 et. seg., which is the governing law today. In

that overall air regulatory legislation, Congress speciti-

cally found that “the Nation’s airport and airway

system is inadequate to meet the current and projected

growth in aviation.” 49 U.S.C. §1701 (1970). Congress

also formally declared:

“That substantial expansion and improvement of

the airport and airway system is required to meet

the demands of interstate commerce, the postal

service, and the national defense.” 49 U.S.C.

§1701 (1970).

To insure a coordinated adequate national system of

airports and airways, Congress directed the Secretary of

(b) Make and enforce air traffic rules for both civil and

military aircraft: . . .’ (Emphasis added.) 2 U.S. Code Cong.

& Ad. News 3741-3742 (1958).

Thus, Congress plainly showed its intention to give the

Administrator authority over “the national airspace” and

“plenary authority” to “allocate airspace and control its use.”

There could hardly be a clearer indication of the iniention of

Congress to occupy the field.

Transportation to prepare, and to review and revise as

necessary,

“a national airport system plan for the develop-

ment of public airports in the United States.

...In preparing the plan, the Secretary shall

consider the needs of all segments of civil

aviation.” 49 U.S.C. §1712(a) (1970).

This clearly shows the pre-emptive nature of the

airport Plan. It is to be a “‘national’’ plan. And it is to

be made for “all segments of civil aviation.” This

includes general and intrastate aviation, as well as

interstate aviation.

To further the development of airports and airways

in the national system, Congress authorized an initial

obligation of $2.5 billion. Under the legislative scheme.

public agencies (states or subdivisions thereof), as

“sponsors,” obtain development funds by submitting a

“project application” to the Administrator of the FAA

(as delegate for the Secretary of Transportation). The

Statute expressly provides that only applications pro-

posing “airport development... included in the then

current revision of the national airport system plan” are

accepted for review. In addition, the project must

conform to ali standards prescribed by the Secretary,

¢.g., site location, layout, safety of approaches. etc. 49

U.S.C. §1716(a) (1970).

The sponsor’s project application must be approved

by the Secretary. Before approval is granted, the project

must be scrutinized under the Act’s standards. and may

be approved only if

“the project is reasonably consistent with plans

(existing at the time of approval of the project) of

planning agencies for the development of the area

in which the airport is located and will contribute

to the accomplishment of the purpose of this

subchapter;” 49 U.S.C. §1716(c)(1)(A) (1970).

Further,

“As a condition precedent to his approval of an

airport development project under this subchapter,

the Secretary shall receive assurances in writing,

satisfactory to him, that-—

(1) the airport to which the project for

airport development relates will be available

for public use on fair and reasonable terms

and without unjust discrimination,’ 49 U.S.C.

§1718(1) (1970).

Finally, if the project application is acceptable under

the standards set forth and is approved, an offer to

make a grant is extended to the applicant. Acceptance

of the grant creates ‘tan obligation of the United States

and of the sponsor.” 49 U.S.C. §1719 (1970). This

constitutes a federal authorization to the city or other

sponsor regardless of any limitation or qualification on

its powers under state law. See City of Tacoma y.

Taxpavers of Tacoma, 357 U.S. 320.

B. The Congressional pre-emption of the field in

airport planning has been implemented in

this case by federal administrative action.

Not only was there clear statutory authorization to

develop plans for airports, both in the 1946 and the

1970 Acts, but this authorization was effectively carried

out by the relevant administrative agencies. One of the

questions which arose early was the policy to be

followed where there were two or more airports in

close proximity to each other. This was a matter of

concern both to the CAB because of its economic

regulation of interstate carriers. and to the FAA. with

respect to all carriers, and all air navigation, because of

the FAA’s specific responsibility to formulate the

National Airport Plan. and also because of the FAA’s

responsibilities with respect to air safety. It should be

remembered that the FAA is a single member agency.

formerly in the Department of Commerce. and now in

the Department of Transportation (DOT). The Adminis-

trator of the FAA speaks for the agency. pursuant to

his statutory and delegated powers. often without

“orders” or “minutes” which are found in dealing with

multimember agencies.

1. The overriding factors of air safety and efficient

utilization of airspace required pre-emption by

federal administrative action.

In order to deal with the problem of multiple

airports in the same general area. and prompted by

increased congestion and the introduction of jet

aircraft, the Chairman of the CAB (Alan S. Boyd) and

the Administrator of the FAA (N.E. Halaby) issued a

Joint Statement on April 24, 1961. In this Statement.

they declared:

“The Federal Aviation Agency and the Civil

Aeronautics Board have become increasingly con-

cerned over the establishment of separate air

carrier airports in cities sufficiently close to be

served through one airport.... The concentration

of the services provided to an area through the use

of one airport will often improve the service

offered by both scheduled airlines and general

aviation. ...

* * *

“The Federal Aviation Agency and the Civil

Aeronautics Board agree that the use of a single

airport serving adjacent communities, where such

action may result in a saving both to the Federal

Government and the locality served, as well as

improving the air service to the area, should be an

increasingly important factor in considering appli-

cations for federal funds for airport construction

purposes and applications for certificated airline

service.”

See Airport Commission of Forsyth County vy. CAB,

300 F.2d 185, 187 (4th Cir. 1962).'¢

©The Court of Appeals for the Fourth Circuit. in affirming a

CAB decision to consolidate service to Greensboro, Winston-

Salem and High Point, North Carolina, had occasion to comment

on the Joint Policy Statement. The Court found it to be not a

prejudgment by the CAB in a specific case, but “a statement that

the Board intends to discharge its statutory obligations by serving

the public interest.” Airport Commission of Forsyth County

v. CAB, 300 F.2d 185, 187 (4th Cir. 1962). The Court took

particular notice that the pronouncement was jointly issued by

the CAB and the FAA. The Court held that the statement was

not a formal rulemaking on the part of the CAB, “[r]ather it

was an announcement in furtherance of the policy making

function of the Federal Aviation Agency in which it was

expedient that the Board express its concurrence.” /d. at 188.

“Its principal thrust was directed toward the use of federal

money in the construction of new airports.” /d.

At this time there were serious rivalries between

Dallas and Fort Worth over whether Love Field of

GSiA would be chosen as the single airport. During this

period Dallas Love Field grant requests were delayed.

Contemporaneously,, the FAA expended over $7.4

million at Fort Worth’s GSIA in anticipation that the

cities would resolve their differences and designate

GSIA as the regional airport.”

Both the FAA and the CAB continued to urge Dallas

and Fort Worth to agree on a regional airport for all

airline services. Federal action, moreover. became

forrial and coercive. The FAA halted all funding of

Love Field projects. In testimony before the subcom-

mittee of the Senate Appropriations Committee.

Administrator Halaby stated his policy regarding

funding pending the establishment of a regional airport:

“We have refused to put another nickel of grant-in-aid

funds in {Love Field] because there is a darn good jet

airport halfway between Dallas and Fort Worth.’!® At

this time, the CAB instituted the Dallas-Fort Worth

Regional Airport Investigation, Order E-18719., August

10. 1962. designed to lead to a single airport in the

Dallas-Fort Worth area.

'7Until the end of the 1950's GSIA’s status in the National

Airport Plan was unlimited, whereas Love Field was restricted.

'®Hearings on H.R. 12711 before the Subcomm. of the Senate

Comm, on Appropriations, Independent Offices Appropriation

1962, 87th Cong., 2d Sess. at 524. Mr. Halaby was referring to

GSIA which was halfway between Dallas and Fort Worth.

The CAB Dallas-Fort Worth Regional Airport Investi-

gation culminated in a CAB ultimatum supported by

the FAA: The cities were to agree On a regional airport

for all airline services, or the CAB would amend all air

carrier certificates to name one airport.'? Order

E-21341, September 30, 1964. In this Order. the Board

said:

“While we have not yet completed our delibera-

tions in this case. the Board is now of the

“The Federal Aviation Agency is charged with the

development of a national system of public airports to

anticipate and meet the needs of civil aeronautics. The

Nationa! Airport Plan which represents that system includes

all airports used by the certificated air cafriers, showing

development recommended to meet their future needs.

Inasmuch as future airline oriented requirements at these

airports are based on the expectation of continued airline

service, the FAA must look to the Board for information

regarding its actions which might affect the future status of

these locations.” Federal Aviation Agency, 1965 National

Airport Plan FY 1966-1970 at 17.

Merely because there are major airline markets within the borders

of Texas, the FAA’s statutory authority is not vitiated. A large

jet operated by Southwest Airlines generates exactly the same

image on a radar screen as a Texas International jet. Southwest

aircraft offer all the same air traffic control problems as those of

any other scheduled airline. While the CAB may have limited

authority with respect to intrastate air carriers. there is no such

limitation on the FAA’s responsibility for airport plans.

unanimous opinion that service to Dallas and Fort

Worth should be required through a single airport

which meets. without limitation. the present and

future requirements for transcontinental cargo and

Passenger service.”

The Board said that it

“believes it is in the public interest to afford the

interested communities a final opportunity to

amrive at a voluntary solution as to the location of

the airport... Should the parties, contrary to our

expectation. be unable to agree to designation of

the airport to serve the area. the Board will then

proceed promptly to issue a decision.”’2°

The FAA participated in the Proceedings before the

Board. Its policy goal- a single airport- would have been

fulfilled either by an agreement between the cities. or

by an order of the Board. In 1964, the only operators

of scheduled passenger jet aircraft were CAB approved

cattiers and. therefore, would a fortiori be required to

use only the designated airport. While the FAA pursued

its goals of a single air carrier airport for the region

before the CAB. the FAA Officially suspended al!

airport development projects at both Love Field and

GSIA. The {964 National Airport Plan altered both

Love Field and GSIA’s future roles. Pending resolution

of the regional airport issue. no improvements for either

airport were incorporated into the 1964 Plan. Federal

Aviation Agency, National Airport Plan FY 1965-1969

at’ 206-207. This decision was continued in the 1965

National Airport Plan.

“The full text of the Order is printed in Appendix C to this

petition.

Faced with a cut-off of federal airport funds and the

FAA-prompted CAB order, the cities signed a Memoran-

dum of Understanding on May 28, 1965 (R. 1986), and

an Interim Agreement on September 27, 1965.

(R.1992). These compacts provided for the initiation of

plans and a program for implementation of a joint

regional airport project. These agreements were the

direct outgrowth of the policy determinations of the

FAA and the CAB. They were accepted by and

approved by those agencies.

The following year the FAA adopted the 1966/1967

National Airport Plan. This Plan contained the fruits of

FAA regional airport policy. For the first time, the Plan

included construction of the Dallas-Fort Worth Regional

Airport, “TO ULTIMATELY ACCOMMODATE ALL

AIRLINE SERVICE.” Department of Transportation,

Federal Aviation Administration 1966/1967 National

Airport Pian FY 1968-1972, at 186. With formal

inclusion of the Dallas—Fort Worth Regional Airport in the

Plan, and the cities’ agreement to construct a regional

airport conforming to the Plan, the FAA tendered grant

offers to the Regional Airport Board to begin

construction. These grants were reflected in the 1968

Plan which amended the 1966/1967 Plan to include

specific federally funded projects for the Regional

Airport.

2. The Dallas-Fort Worth Airport development was pur-

suant to, and in accord with, the National Airport Plan.

Dallas and Fort Worth proceeded to comply with the

National Airport Plan and the CAB orders. The

Dallas-Fort Worth Regional Airport Board (created by

the Contract between the cities, R. 2000) submitted

the Over-All Preliminary Plan for Construction of the

Dallas-Fort Worth Regional Airport, September, 1968,

to the respective City Councils. (R. 2017). In

conformance with the National Airport Plan, the

Airport Board’s proposal provided for the transfer of all

scheduled airlines to the new Regional Airport.?! After

approval of the Airport Board’s plan, Dallas and Fort

Worth acted to implement that program. To realize this

goal, the cities enacted the /968 Regional Airport

Concurrent Bond Ordinance. That ordinance required

the transfer of all scheduled airlines to the Dallas-Fort

Worth Regional Airport. thus satisfying the require-

ments of the National Airport Plan.??

?!“LOVE FIELD AND GSIA COMMERCIAL USES

“It is imperative to the economic feasibility of the financing

and construction, and to the practicality, of the Regional Airport

that the commercial air carriers presently, and which from time

to time during construction will be, using Love Field and GSIA

transfer their activities to the Regional Airport when it becomes

operational.” Over-All Preliminary Plan, at 1V-1 (R. 2135).

2See note 7, supra.

During construction of the Regional Airport the FAA

continued to discharge its responsibilities under its

Congressional mandate. With the formal concurrence of

the cities in the airport’s role. the FAA informally, but

nonetheless effectively, continued to participate in the

planning and implementation of the Regional Airport

project. Rather than set forth in detail that involve-

ment, the following examples adequately demonstrate

the depth of that Participation: site selection, runway

placement, land use planning, an extensive computer

simulation study to ensure safe and efficient air traffic

control of the Regional Airport, based on all scheduled

airline operations at the Regional Airport, with general

aviation and military operations at Love and other area

fields, etc. All of these FAA efforts were designed to

insure that the Regional Airport, and air traffic in the

North Texas area, would harmonize with the National

Airport Plan.

Twice in recent years the FAA has formally

reaffirmed its policy to locate all scheduled airline

Operations at the Regional Airport. The first was the

adoption of the 1972 National Airport System Plan.

That Plan integrated Dallas-Fort Worth Regional Airport

into the National Airport System and altered Love

Field’s status.?* Recognizing that the Regional Airport

Department of Transportation, Federal Aviation Administra-

tion, 1972 National Airport System Plan, Volume ASW.

Southwest Region at 36. Passengers per aircraft were forecast to

drop from nearly 13 to less than 1.4, reflecting Love's exclusive

role as a general aviation field.

was not yet completed, the Plan retained Love Field’s

Status as an airline field. Within five years, however.

airline operations were to cease and Love was to

become solely a basic transport field. limited to general

aviation operations, including business jets up to 60,000

pounds.** The Regional Airport. on the other hand, is

designated as a primary, scheduled airline airport.

The most recent manifestation of DOT/FAA policy is

contained in the Agency’s Final Environmental Impact

Statement. After review of the Statement, the Secretary

of Transportation held it to be consistent with both the

National Environmental Policy Act of 1969 (42 U.S.C.

$4331 et seq.) and the Airport and Airway Develop-

ment Act of 1970. That Statement provided, in part:

“Regional air operations planning anticipates the

relocation of all scheduled air carrier operations to the

Dallas-Fort Worth Regional Airport once it has

opened.” Final Environmental Impact Statement,

Appendix B, §1.04.1 (May 1972).

The foregoing outlines the gradual formulation and

implementation of FAA policy to locate all scheduled

airline operations at the Dallas-Fort Worth Regional

Airport. First. there was informal action by the

Administrator. After that course failed, formal action

*See Department of Transportation, Federal Aviation Ad-

ministration, Airport Design Standards—General Aviation Air-

ports Basic and General Transport, FAA Advisory Circular

150/5300-6 (July 14, 1969). The gross weight of a Boeing 737,

as operated by Southwest. is approximately 111,000 pounds.

by the FAA/CAB was effected through a joint policy

statement and CAB proceedings. After the success of

those efforts, informal FAA cooperation with the state

and local bodies in the planning stages was carried out

to insure that the new airport and the old airports

would integrate into the National Airport System.

Finally, there occurred formal amendment of the

National Airport Plan, and inclusion of the Regiona!

Airport, for scheduled airline operations, and Love

Field, for the exclusive use of general aviation, in the

National Airport System Plan.

Regulations for both the Federal Airport Act and the

AADA of 1970 authorize the Administrator of the

FAA to implement these programs. 14 C.F.R. §8§151

and 152 (1974), respectively. The regulations require

applicants to adhere to the statutory standards and dele-

gate responsibility to the Administrator to insure that

proposed projects meet those standards. Once approved

and accepted, grant agreements may only be amended

with the approval of the Administrator, provided such

amendments comply with the standards set forth for

initial approval.

Federal system planning and use of grants-in-aid are

intended to assure the development of airports in

accordance with the National Airport System Plan. This

is demonstrated in the 1972 Plan. formulated and

published to meet the requirements of §12(a) of the

AADA (49 U.S.C. §1712(a)):

“If the national air transportation system is to

operate safely and efficiently, the major system

elements, the airways system, and the airports

system must be properly related to each other.

* * *

“The national interest in civil airports is

comerstoned upon public safety. Also, as the

guardian of the Nation’s airspace, the Federal

Government has a positive interest in the siting of

airports in a manner which enhances efficient as

well as safe utilization of the airspace.

x * *

“THE NEED FOR PLANNING. While airport

planning is a cooperative effort amcng the various

levels of government and the usezs of the system,

it is clear that only the Federal Government is in

the overview position necessary to provide the

guidance to shape airports collectively as a national

svstem. By virtue of the Airport and Airway

Development Act of 1970, a national planning

process has been developed calling for participation

by every affected element of government, aviation

industry, and user community. The process calls

jor airport system planning from the bottom

up- guided by long-range Federal definition of the

role and system essentially applicable to each

existing and future airport within the national

system.” 1972 National Airport System Plan,

Volume AAS, Narrative and National Summaries at

1-2. (Emphasis added).

Thus, the National Airport System Plan provides a

planning tool whereby airports, cooperatively developed

by the federal government and local sponsors, assume

their proper role in the national system. The federal

government’s mandate to assure safe and efficient

movement of traffic from airport to airport on a

non-disciminatory basis is thereby fulfilled. Grants

under the federal airport assistance programs are an

essential device by which the “AA insures that airports

developed in cooperation with local agencies will

conform to the national plan.

In pursuit of this policy, each grant agreement

contract contains in substance the following covenant

inserted under the authority of 49 U.S.C. §1348 and

49 U.S.C. §1719, or their antecedent statutes:

“2. The Sponsor will operate the Airport as

such for the use and benefit of the public. In

furtherance of this covenant (but without limiting

its general applicability and effect), the Sponsor

specifically agrees that it will keep the Airport

open to all types, kinds, and classes of aeronautical

use without discrimination between such types,

kinds, and classes: Provided, That the Sponsor may

establish such fair, equal, and nondiscriminatory

conditions to be met by all users of the Airport as

may be necessary for the safe and efficient

operation of the Airport: And Provided Further,

That the Sponsor may prohibit any given tvpe,

kind, or class of aeronautical use of the Airport if

such action will best serve the aeronautical needs

of the area served by the airport.”’ (R. 4867). (Em-

phasis added).

C. Since pre-emption is a matter of substance

and not of form, the federal government has

occupied the field, and therefore, conflicting

state orders are a nullity.

Federal pre-emption does not depend upon any

specific formula. The question in each case is whether

the federal government has occupied the field. See

Hines vy. Davidowitz, 312 U.S. 52, 67. Thus, to

determine if there has been pre-emption, the Court

must analyze the character of the regulated subject to

resolve

“whether both regulations can be enforced without

impuiring the federal superintendence of the field,

not whether they are aimed at similar or different

objectives.” Florida Lime & Avocado Growers, Inc.

v. Paul, 373 U.S. 132, 142.

Federal superintendence of air commerce has been

deemed to be pervasive. As Justice Jackson has stated:

““Congress has recognized the national

responsibility for regulating air commerce. Federal

control is intensive and exclusive. Planes do not

wander about in the sky like vagrant clouds. They

move only by federal permission, subject to federal

inspection, in the hands of federally certified

personnel and under an intricate system of federal

commands.” Northwest Airlines, Inc. v. Minnesota,

322 U.S. 292, 303. (Jackson, J.. concurring).

Regulation of airports is no less significant than that of

the airways:

“The airport is a key element of our national

transportation system. The planning and

development of airports is of particular importance

since it is at the airport that the aviation system

must be integrated with other elements of the

transportation system, with the communities it

serves, and with their environment.” Department

of Transportation, Federal Aviation

Administration, 1972 National Airport System

Plan, Volume AAS, at 1.

Although in the instant case Texas’ police power is

not challenged, pre-emption does foreclose assertion by

Texas of its economic regulatory power as far as airport

use is concerned. Dallas, exercising its rights as

municipal proprietor of Love Field, adopted reasonable

restrictions on the use of its airport, in full cooperation

with the federal authorities. Here. the issue is the power

of the TAC, in its economic regulation of intrastate

carriers, to interfere with this orderly transfer of service

from Love Field to the Regional Airport.?* Clearly, such

*The TAC has neither the staff nor the facilities to devise

independently a plan of such scope, and must not be permitted

to revise it by means of an “order” issued without study nor

even any discussion. Created in i945 with three members, the

TAC now has six Commissioners who are paid $10 per diem

while attending to their duties, with a yearly maximum of $600.

Vernon's Ann. Civ. St. Art. 46c-3 (1974 Supp.). No aeronautical

expertise of any kind is necessary. A requirement of five years

experience in aeronautical activities was omitted from the 1969

revision of the statute. /d.

state action should not be effective against federal

authority. Though the AADA contemplates and encour-

ages state and local cooperation in developing the Plan,

the Plan is a federal plan, and permitting a state agency

to obstruct implementation of the Plan precludes the

achievement of the goal of the Act—a_ coordinated

national system of airports.?¢ Permitting the decisions

below to stand would allow state governments to

exercise unilateral, ex post facto control over this facet

of federal superintendence over safe and efficient air

commerce.

In 1966, Dallas and Fort Worth, as subdivisions of the

State of Texas, and as potential grantees of federal

funds under comprehensive federal legislation relating to

airports, had authority to develop the proposed

Regional Airport, and to adopt reasonable restrictions

on the use of Love Field.2” Once incorpoyated into the

The extent of the obstruction presented by the TAC order

and its effect on the Regional Airport Plan are now becoming

apparent. Although the District Court was not impressed by the

present petitioners’ fears of the economic impact on the Regional

Airport if all airline traffic followed Southwest and operated out

of Love Field, App. B, pp. 16-17b, it is clear that the petitioners

were correct and the District Court was wrong. As the

Court of Appeals itself noted, “Despite its contract, Braniff has

refused to close operations from Love, and Texas International

has now reopened there under the umbrella of a State-court

injunction.” App. A, p. 2a.

In 1968 the Attorney General of the State of Texas

approved the 1968 Regional Airport Bond Ordinance containing

the requirement that all airline service be moved from Love Field

to the Regional Airport. Southwest’s original TAC Cestificate,

authorizing service to the Dallas-Fort Worth area, did not become

(continued)

National Airport System Plan, approved by the FAA,

and accepted by the cities, changes could only be

accomplished with the consent of the FAA. See 14

C.F.R. §§151.31 and 152.135 (1974). The grant

agreements are obligations both of the airport sponsor and

of the United States, 49 U.S.C. §1719 (1970). Any

attempt by a state agency unilaterally to change the status

of Love Field, itself federally-funded, should be invalid.

See Ivanhoe Irrigation District y. McCracken, 357 U.S.

275, 295. The pervasive power inherent in the federal

government’s regulation of air commerce, evidenced

particularly in the development of airports in the

National Airport System Plan, pre-empts the state from

any such unilateral action.

The TAC order stands as an obstacle to the

accomplishment of the full purposes and objectives of

Congress contained in the mandate to the Secretary of

Transportation to develop a comprehensive national air

transportation system which will operate safely and

efficiently. The principles of pre-emption require that

the instant order be declared invalid. This presents an

important question of federal law, not only with

respect to th’s great airport project, but also because of

its impact on other projects in many parts of the

nation.

final until the summer of 1970. TAC Minute Order No. 22,

supposedly prohibiting exclusion of Southwest from Love Field,

was issued on November 12, 1971. Neither the Certificate nor

the Order specifically directs Southwest to serve Dallas/Fort

__ Worth through Love Field.

D.The decision of the Court of Appeals is in

direct conflict with this Court’s decision in

Burbank v. Lockheed Air Terminal.

In particular, the decision below js wholly

inconsistent with the recent decision of this Court

in Burbank vy. Lockheed Air Terminal, 411 U.S.

624. Though that case involved noise regulation,

it was concemed with airport use, and the

approach taken by the Court there would lead to a re-

versal here. |

In Burbank, as here, there was no direct declaration

by Congress of federal pre-emption. But as here, there

was a growing development of federal enactments and

administrative actions in the area. As the Court said in

the Burbank case (Id -at 638): “.... each case turns on

the peculiarities and special features of the federal reg-

ulatory scheme in question.” But the Court found pre-

emption in “the pervasive control vested in EPA and in

FAA” which left “no room for local curfews or other

local controls.” Jd. The breadth of federal control over,

and concern with, airports and airport use should lead

to the same conclusion here, for here, as in Burbank,

“It is the pervasive nature of the scheme of federal reg-

ulations ... that leads us to conclude that there is pre-

emption.” Jd. at 633. The Statutory provisions and ad-

ministrative actions listed above, relating to airports, air-

port planning, and airport construction, are surely per-

vasive. Here, as in Burbank, the actions taken are re-

quired to reflect:

“a delicate balance between safety and efficiency,

49 U.S.C. §1348(a), and the protection of persons

on the ground. 49 U.S.C. §1348(c). Any regula-

tions adopted by the Administrator ...must be

consistent with the highest degree of safety. The

interdependence of these factors requires a uni-

form and exclusive system of federal regulation if

the congressional objectives underlying the Federal

Aviation Act are to be fulfilled.” /d. at 638-639.

Although this passage was written with respect to

noise control at airports, it is equally applicable to the

question of classification and usage of airports involved

here. Thus, the decision below thwarts the position

taken by this Court in Burbank which tecognizes that

such questions of airport use have by long and steady

direction of legislative and administrative action been

pre-empted by federal authority and are no longer

validiy subject to state or local control.

E. The Order of the TAC, as construed by the

Court below, creates an undue and unlawful

burden on interstate commerce.

Although neither the United States Supreme Court

nor the Court of Appeals reached the issue, the District

Court in Burbank found the ordinance invalid on the

basis of conflict with the Commerce Clause, as well as

pre-emption. Lockheed Air Terminal vy. City of Bur-

bank, 318 F. Supp. 914, 921, 926 (C.D. Cal. 1970). As

in Burbank, the record in this case reveals that the

burden on interstate commerce is also great. TAC

Minute Order 22 creates an undue preference for an

intrastate carrier by permitting it to utilize an airport

that is admittedly more convenient and accessible to

certain Dallas passengers, and from which the interstate

carriers are barred under the Plan. CAB-certificated airlines

cannot effectively compete with Southwest if the latter is

permitted to continue operating at Love Field: this is

“tantamount to exclusion from the market.”(R. 526). In

addition, the interstate carriers have agreed to absorb

any deficit suffered by the Regional Airport. Estimates

of the reveaues lost to the Regional Airport by South-

west’s continued use of Love Field range from a

minimum of $400,000 (R. 498-499) to as much as

$3,593,300. (R. 1012). These losses must be indirectly

absorbed by the scheduled interstate carriers using the

Regional Airport, hence creating a burden on interstate

commerce.

F. Determination of the reasonableness of 2ir-

port use classifications is within the primary

administrative jurisdiction of FAA, a fact

ignored by the Court below.

The District Court held that allowing Southwest to

remain at Love Field constitutes neithe: an “unjust

discrimination” against the departing interstate carriers

within the meaning of the AADA, 49 U.S.C. §1718()),

App. B, pp. 12-13b., nor the creation of an “exclusive

right’’ within the meaning of the Federal Aviation Act

of 1958, 49 U.S.C. §134%a), App. B, pp. 13-14b.

Instead, the court held, to require Southwest to transfer

its services to Regional Airport would constitute both

unjust discrimination against Southwest and the crea-

tion of an exclusive right in the use of Love Field. In

so ruling, the court failed to recognize the primary role

assigned by Congress to the FAA in overseeing the

distribution and use of federal funds in furtherance of

the comprehensive federal scheme of airport planning

and development. Maintenance of a proper relationship

between the courts and the agency in matters affecting

transportation policy here required the District Court to

respect the primary jurisdiction of the FAA over these

issues. United States v. Western Pacific R.R., 352 U.S.

59, 63.

The soundness of this reasoning is evidenced in the

error of the District Court. The court found that while

the intrastate services of Southwest would be excluded

from Love Field under the provision of the 1968

Ordinance which applies to intrastate services provided

by a carrier pursuant to a TAC certificate, “purely

intrastate services” provided by carriers pursuant to

CAB certificates would not be excluded. App. B, pp.

23-25b. This was found to be unjust discrimination as

between the CAB carriers and Southwest. /d. at p. 25b.

The court overlooked the fact that under their CAB

certificates, CAB carriers can only provide interstate

services.** Accordingly, there is no “loophole” in the

Ordinance which would allow CAB carriers to conduct

purely intrastate services at Love Field. There is no

such discrimination between the CAB carriers and

Southwest.

The District Court erred further in concluding that a

“general preference for commercial aviation” over

general aviation precludes the exclusion of scheduled

commercial air carriers from Love Field. (App. B, p.

29b). The testimony of Henry L. Newman, Regional

Administrator of the FAA, makes it clear that Love

Field was to become a predominantly general aviation

airport. (R. 564-566, 584-585, 949). The FAA is

specifically directed to “consider the needs of all

segments of civil aviation.” 49 U.S.C. §1712(a), and is

specifically authorized to make grants for the develop-

ment of general aviation airports. 49 U.S.C.

§1714(a)(2). As the court itself pointed out (App. B,

p. 27b), there is here no severe shortage of airport

capacity which might require a preference for com-

mercial flights in order to maximize public benefits, as

in Aircraft Owners and Pilots Assn. v. Port Authority of

New York, 305 F. Supp. 93, 108 (E.D.N.Y. 1969). The

°C AB carriers can provide services solely within a given state

only as part of an interstate route network pursuant to CAB

certificate. Such services are also covered by the phase-out

provision of the 1968 Ordinance. App. B., pp. 21-22b.

effect of the District Court’s holding is to deny the

FAA its lawful authority reasonably to segregate general

from commercial aviation, even where it determines

safety, efficiency and sound airport planning will be

maximized thereby.

It is to the Department of Transportation that

Congress has assigned the task of formulating and

implementing a National Airport System Plan. AADA.

49 U.S.C. §1701 ef seg. It is the FAA, as delegate of

the Department of Transportation, which shall receive

assurances that “the airport to which the project for

airport development relates will be available for public

use on fair and reasonable terms and without unjust

discrimination,” 49 U.S.C. §1718(1), and which is to

insure that the grant agreement contains “such terms

and conditions as the Secretary considers necessary to

meet the requirements of this subchapter.” 49 U.S.C.

$1719 (1970). Determination of the reasonableness of

airport use restrictions is clearly a matter within the

expertise of the FAA, requiring consideration of

numerous factors including here the successful imple-

mentation of the Regional Airport Plan which had been

prompted and supported by federal aeronautic authori-

ties.

Henry L. Newman, Regional Director of the FAA,

testifying in response to questions put by the District

Court itself, clearly stated that the FAA “has the

responsibility for making that determination of dis-

crimination” (R. 578}, and that in deciding to “go

ahead with a commitment to participate in this

[Regional Airport] investment... in effect, the FAA

has made a determination” that the phase-out of

scheduled airlines from Love Field was not unjustly

discriminatory. (R. 942). Yet he emphasized that “if we

were faced with a claim of discrimination on this then

we would... investigate it thoroughly and have what-

ever hearings were necessary and make the determina-

tion” in light of current circumstances. The District

Court failed to give any weight to this de facto

determination by the FAA that the restrictions placed

upon the use of Love Field were reasonable, deeming it

“immaterial” whether Dallas’ actions were consistent

with the terms of the AADA, then the Federal Airport

Act, noting that the Act did not confer upon the FAA

“any economic regulatory power over air carriers.”

App. B, pp. 14-15 b.

Thus, the Court ignored completely the responsibility

and concomitant authority of the FAA to oversee the

uses to which federally-funded airports are put, in

ensuring that the role played by each such airport is

consistent with maximum safety and efficiency within

the National Airport System Plan. The Court also

denied the FAA an opportunity to expertly reconsider

its earlier support of the Love Field phase-out. were it

actually faced with a claim of discrimination at Love

Field.

The District Court erred in resolving the issue of the

reasonableiicss of Dallas’ airport use classifications,

which is initially a matter for FAA determination. The

Court of Appeals not only failed to recognize this error,

but was itself clearly in error in holding that such use

classifications were the province of the TAC, a state

agency.

THE DECISION BELOW IS IN DIRECT

CONFLICT WITH A RECENT DECISION OF

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

The decision below is in direct conflict with an opinion

recently issued by the United States Court of Appeals for

the Second Circuit, in United States y. City of New

Haven, 496 F. 2d 452, appeal filed sub nom. Town of

East Haven v. United States, 43 U.S.L.W. 3124 (U.S. July

30, 1974, No. 74-37). Action by this Court is required

to resolve the present confusion over the important

question of federal pre-emption of airport operations.

City of New Haven concerns the attempt by state

authorities to enjoin airport Operations on a runway

extended pursuant to the AADA and funded in part by a

federal grant, for alleged violations of state law. The City

of East Haven, which abuts the extended runway and

over which New Haven acquired the required clear zone,

obtained a state court injunction prohibiting the use of

the extended runway. East Haven had alleged violations

of state law by New Haven in the latter’s extension of the

runway and acquisition of clear zones pursuant to the

National Airport System Plan.

The United States brought suit in federal district court

seeking an order requiring the runway to be kept open

and enjoining East Haven from enforcing the state court

injunction. In holding that federal control of airspace

management and airport operations under the Federal

Aviation Act and the AADA pre-empted the state

injunction, the District Court stated:

“I appreciate the concern of the Connecticut courts

that the laws of the state be obeyed, but the federal

government's ability to proceed with airport

development is not contingent upon the peculiarities

of local property laws. As the United States has said

in its brief, the legality under state law of New

Haven’s acquisition of the clear zone area is entirely

separate from the question of the power of the state

court to enjoin airport operations whose regulation

Congress has entirely pre-empted.” 367 F. Supp.

1338, 1341 (D. Conn. 1973). (Emphasis added).

The Second Circuit, finding that federal control of

airspace is “‘extensive,” affirmed the decision of the

District Court. The Court of Appeals concluded that

“East Haven cannot enforce its rights under Connecti-

cut law by obtaining a state court injunction which

infringes on federal regulation of navigable airspace.”

Id. at 454, .

The instant case presents identical legal issues. The

Court of Appeals for the Fifth Circuit, however, ignored

federal pre-emption of airport control and navigable

airspace.

This conflict justifies the grant of certiorari to review

the judgment below.

THE COURT OF APPEALS EXCEEDED THE

PROPER SCOPE OF JUDICIAL REVIEW IN

UNNECESSARILY DECIDING QUESTIONS

OF STATE LAW.

In this case the Fifth Circuit exceeded the proper

scope of judicial review by overlooking and ignoring

controlling federal law and reaching out to decide the

case on a point of state law. While federal courts clearly

have jurisdiction to decide matters of state law properly

placed before them, the doctrine of abstention requires

that federal courts abstain from unnecessary decisions of

state law. Railroad Commission of Texas v. Pullman Co..

312 U.S. 496. In this case it was clearly unnecessary to

decide the state law point inasmuch as the case was

undoubtedly determinable under controlling federal law,

as is shown above.??

The Court below held that the 1968 Bond Ordinance is

in direct conflict with the determination that public

convenience and necessity require Southwest to con-

tinue serving Dallas through Love Field, and that Dallas

must yield to the TAC on this issue.*° This is doubly

The District Court, in setting forth the bases for its

conclusion, stated “...that each ground is, in and of itself.

sufficient to preclude Plaintiffs from denying Southwest access to

Love Field.” App. B, p. 19b. Yet the District Court. having re-

sulved the federal questions presented, unnecessarily rendered

conclusions as to state law which were, in the words of the court

“[w]holly apart from the federal grounds set forth above...”

App. B, p. 32b. The Court of Appeals disposed of the case solely

on an issue of state law, thinking it “unnecessary to discuss” the

District Court's resolution of federal questions. In light of the

substantial impact this decision is certain to have upon airport

planning, uses, and financing throughevt the United States, this

manner of appellate review hardly comports with the require-

ment of sound discretion.

“The District Court itself pointed out that the CAB has

jurisdiction over air carriers, not cities or airports. App. B, p.

10b. The federal powers of the CAB are analogous to the state

powers of the TAC. “In effect. the TAC is the CAB of Texas.”

(Brief of Southwest before the District Court, R. 363). Just as

CAB may influence airport usage only indirectly through its juris-

diction over interstate carriers, so too does TAC have jurisdiction

only over intrastate air carriers, not over airports which Texas

does not own or manage. Vernon’s Ann. Civ. St. Art. 46c-1 er

seq. (1974 Supp.).

erroneous. First, there has been no determination by

the TAC that the public convenience and necessity

require that Dallas be served through Love Field rather

than the Regional Airport. Southwest’s certificate stated

that it was authorized to serve the Dallas/Fort Worth

region through any airport in the area. There is clearly no

conflict, then, between the certificate and the 1968 Bond

Ordinance. Southwest has nor been certificated into Love

Picid. Minute Order 22 merely expresses the TAC’s con-

cern with service discontinuations generally.*" It was pro-

mulgated suddenly, casually, and without following any

of the procedures which attend the issuance of a certifi-

cate of public convenience and necessity—-or any ad-

ministrative order--such as a public hearing. Vernon’s

Ann. Civ. St. Art. 46c-6 (1974 Supp.).

3 “MINUTE ORDER NO. 22

“WHEREAS, air carriers operating under Certificates of Public

Convenience and Necessity issued by the Commission are, in

some instances without prior knowledge or consent of the

Commission ceasing or transferring their air service:

“NOW THEREFORE, in the public interest and to prevent

the discontinuance of air service through particular airports

without its prior knowledge and consent. this C ommission does

hereby adopt the following regulation:

“ "From and after the date hereof, no air carrier operating

under a Certificate of Public Convenience and Necessity

issued by the Commission shall, without the prior written

approval of the Commission, discontinue all air service to

any airport through which such carrier presently provides

air service.”

Adopted November 12. 1971.”

Second, regulatory authority of the TAC extends not

to airports, but to air carriers. While it is true that the

TAC has sole authority over the routes of intrastate car-

ricts, the Court was wrong in assuming that this power over

routes includes the power to control the use of airports

owned by municipalities. The matter is not one which is

left to assumption by the statutes of Texas. The Texas

Municipal Airports Act plainly and unambiguously says

that municipalities have the power to govern their

airports and to determine the uses of airports owned by

them:

“A municipality, which has established or acquired

or which may hereafter establish or acquire an

airport or air navigation facility, is authorized to

adopt, amend and repeal such reasunable ordi-

nances, resolutions, rules, regulations and orders as

it shall deem necessary for the management,

government and use of such airport or air naViga-

tion under its control, whether situated within or

without the territorial limits of the municipality,”’

Vernon’s Ann. Civ. St. Art. 46d-7(a) (1969).

(Emphasis added).

On the other hand, the statute setting out the powers

of the TAC does not authorize the TAC to determine

the use of airports owned by municipalities. This is

emphasized by the fact that the TAC is given the power

to control sirport. owned or held in trust for the state.

Vernon's Ann. Civ. St. Art. 46c-6(1) (1974 Supp.).

With respect to municipally owned airports, TAC is

encouraged to participate and cooperate with munici-

palities and “with the federal authorities in develop-

inent of 4 national system of civil aviation.” Vernon’s

Ann. Civ. St. Art. 46c-2. Moreover, one of the purposes

of the TAC is “eliminating costly and unnecessary

duplication of functions properly in the province of the

federal agencies.” /d. When this purpose of the TAC is

viewed against the federal statutes concerning airport

planning, funding and uses and providing for a National

Airport System Plan, it is clear that the Texas

legislature never intended to give the TAC any

authority over the use of airports owned by municipali-

ties and that it never intended that the TAC should

intrude in plans made by municipalities and the federal

government in accordance with the specific power of

municipalities under state law and the federal scheme

prescribed under federal law.

IV.

AN ORDER OF A STATE AGENCY CON-

FERRING THE RIGHT TO “PERPETUAL”

AIRPORT USE WITHOUT NOTICE, HEAR-

ING, RECORD, EVIDENCE OR PARTIES IS

VOID; HOWEVER, THE COURT BELOW

UPHELD SUCH ORDER.

In contrast to the thorough, step-by-step build-up of

federal pre-emption, and the careful, painstaking

development and construction of the Regional Airport,

is the sudden and casual order of the TAC. This order,

promulgated without notice or hearing. as interpreted

by the court below, effectively nullifies this portion of

the pervasive federal Plan.

The entry of an order by a state agency, as was done

here, without notice, hearing, parties, record or

evidence, cannot be the basis of a decision which

nullifies a part of the National Airport System Plan.

Such an order is, perforce, a nullity. Here, it is not only

void under the doctrine of federal pre-emption, but is

void as a violation of due process of law.

That said order gave one airport user the right to use

an airport in “‘perpetuity,”*? without allowing the airport

proprietor, other airlines affected, and federal authori-

ties an opportunity to be heard renders the order void

under every concept of due process. Yet. the court

below upheld the order.

In Interstate Commerce Commission vy. Louisville &

N.R.R., 227 U.S. 88, an order of the ICC was held void

where made without substantial supporting evidence. The

Court there stated: |

“A finding without evidence is arbitrary and

baseless. And if the government’s contention is

correct, it would mean that the Commission had a

power possessea by no other officer, administrative

body. or tribunal under our government. It would

mean that, where rights depended upon facts, the

Commission could disregard all rules of evidence,

and canriciously make findings by administrative

fiat. Such authority, however beneficently exer-

cised in one case, could be injuriously exerted in

See footnote 8. supra.

another, is inconsistent with rational justice, and

comes under the Constitution’s condemnation of

all arbitrary exercise of power.” 227 U.S. at 91.

The above language is cited with approval in Southern

Ry. v. Virginia ex rel. Shirley, 290 U.S. 190. The Court

there struck down a state statute as violating due pro-

cess, Stating:

“But by sanctioning the order... [the Reviewing

Court] in effect, approved action taken without

hearing, without evidence, without opportunity to

know the basis therefor. This was to rule that such

action was not necessarily ‘arbitrary’. There is

nothing to indicate what that court would deem

arbitrary action or how this could be established in

the absence of evidence or hearing. In circum-

stances like those here disclosed no contestant

could have fair opportunity for relief in a court of

equity. There would be nothing to show the

grounds upon which the Commissioner based his

conclusion. He alone would be cognizant of the

mental processes which begot his urgent opinion.”

290 U.S. at 198.

Here, the Court of Appeais also approved action

taken without notice, hearing, evidence, and without

Opportunity for any party to be present, and in clear

violation of the proper administrative procedures. Such

lack of procedure clearly violates the fundamental

principles of due process.

Even if the Court’s interpretation of the minute

order had been correct, it is clear that the order coula

not have had the effect attributed to it because it did

not meet the requirements of the Texas statute with

respect to determination of the public convenience and

necessity®? and the Court of Appeal’s decision clearly

assumes that Minute Order No. 22 was a determination

of the public convenience and necessity.

Minute Order No. 22 itself shows that there was no

notice to CAB carriers or other interested parties, that

no party was afforded the opportunity to appear or

present evidence and that no hearing was held. The

order was merely a device by which the TAC intended

to “‘keep track” of the airports being used by its car-

riers. It obviously was not intended to be a determina-

tion of the public convenience and necessity with

respect to the use of Love Field by Southwest and the

court's interpretation was most clearly not permissible

under the controlling state law. TAC hardly observed

“the limitations which it [state law] imposes upon the

exercise of the authority which it gives.” United States

vr Lee, 106 U.S. 196, 220.

*“Anyv other provision of this Act notwithstanding. carriers

certificated by the Civil Aeronautics Board pursuant to the

Federal Aviation Act of 1958, as now or hereafter amended.

together with any other interested party shall be afforded the

right to appear and present evidence and arguments at such

hearings on all issues involved in any such hearing held under the

provisions of this Act. The final determination of such

application shall be made by the Commission by written order

setting forth its findings and served upon the parties in such

manner as the Commission shall specify. and such application

may be granted or denied. in whole, or in part: provided.

however. any service not specifically authorized shall be deemed

specifically denied.” Vernon's Ann. Civ. St., Art. 46c¢-6. Sub. 3(c)

(1974 Supp.).

CONCLUSION

Congress has established a pervasive and complete

federal scheme for airspace management and for the

planning, funding and regulation of uses of public

airports, the National Airport System Plan. Dallas and

Fort Worth, acting under and in cooperation with the

FAA and CAB decisions to implement the federal

statutory scheme, have constructed the world’s largest

airport at a cost in excess of one billion dollars and

ussigned specified air uses to that one airport as it is

integrated into the Dallas-Fort Worth complex of air-

ports, and the National Airport System Plan. The court

below, by failing to recognize federal pre-emption, by

failing to defer to the primary jurisdiction of the

federal agency charged with the responsibility of

implementing this federal plan, and by erring in their

conclusions of state law, has not only nullified the

Dallas-Fort Worth Regional Airport Project and

burdened interstate commerce. It also has effectively

nullified a major part of the National Airport System

Plan.

Finally. the state order, which was interpreted below

as giving One intrastate airline a right in “perpetuity” to

Use an airport. was issued without notice. hearing.

evidence, or record, all in violation of elementary

principles of due process.

For the reasons stated, petitioners pray that this

Petition for Certiorari to the United States Court of

Appeals for the Fifth Circuit be granted.

Respectfully submitted,

N. ALEX BICKLEY, City Attorney ERWIN N. GRISWOLD

City of Dallas, Texas JAMES M. BURGER

501 City Hall Reavis, Pogue, Neal and Rose

Dallas, Texas 75201 1100 Connecticut Avenue, N.W.

S.G. JOHNDROE, JR., City Attorney Washington, D.C. 20036

City of Fort Worth, Texas CHARLES S. RHYNE

1000 Throckmorton Street COURTS OULAHAN

Fort Worth, Texas 76102 ALFRED J. TIGHE, JR.

LEE F. HOLT, Legal Counsel DAVID M. DIXON

Dallas-Fort Worth Regional Rhyne & Rhyne

Airport Board 400 Hill Building

P.O. Drawer DFW 839 Seventeenth Street. N.W.

Dallas-Fort Worth Airport Washington, D.C. 20006

Texas 75261

SEP 23 1974

IN THE |) mprcanes near,

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-324 |

THE CITY OF DALLAS, TEXAS,

THE CITY OF FORT WORTH, TEXAS,

AND THE DALLAS-FORT WORTH

REGIONAL AIRPORT BOARD,

Petitioners,

Pp °,

SOUTHWEST AIRLINES CO., and

TEXAS AERONAUTICS COMMISSION,

Respondents.

APPENDIX

N. ALEX BICKLEY, City Attomey ERWIN N. GRISWOLD

City of Dallas, Texas JAMES M. BURGER

501 City Hall Reavis, Pogue, Neal and Rose

Dallas, Texas 75201 1100 Connecticut Avenue, N.W.

S. G. JOHNDROE, JR., City Attorney Washington, D.C. 20036

City of Fort Worth, Texas CHARLES S. RHYNE

1000 Throckmorton Street COURTS OULAHAN

Fort Worth, Texas 76102 ALFRED J. TIGHE, JR.

LEE E. HOLT, Legal Counsel DAVID M. DIXON

Dallas-Fort Worth Regional Rhyne & Rhyne

P.O. Drawer DFW 839 Seventeenth Street, N.W.

Dallas-Fort Worth Airport Washington, D.C. 20006

Texas 75261

Washington. OC. © CLE PUBLISHERS © LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

Page

Appendix A, Opinion of the Court of Appeals .......... la

Appendix B, Opinion of the District Court ............. Ib

Appendix C, Order of the Civil Aeronautics Board,

No. E-21341, Sept. 30. 1964 .................... Ic

Appendix D, Texas Municipal Airports Act ............. id

Appendix E. Texas Aeronautics Commission Act ......... le

Appendix F, Federal Airport Act of 1946 ............. if

Appendix G, Federal Aviation Act of 1958 ............ Ig

Appendix H, The Airport and Airway Development

TN a tke eas yo wee ee nearer Ih

APPENDIX A

The CITY OF DALLAS, TEXAS, the City of Fort Worth,

Texas, and the Dallas-Fort Worth Regional Airport

Board, Plaintiffs-Appellants,

¥.

SOUTHWEST AIRLINES CO.. Defendant-Appellee, and

Texas Aeronautic Commission, Intervenor-Appellee.

No. 73—2478

United States Court of Appeals,

Fifth Circuit.

May 31, 1974.

Appeal from the United States District Court for the

Northern District of Texas.

Before ALDRICH. Senior Circuit Judge.* and BELL

and GEE, Circuit Judges.

GEE. Circuit Judge:

This is a suit for declaratory judgment brought by

the cities of Dallas and Fort Worth and their joint

agent. an airport board created by intercity compact, to

determine their right to close Dallas’ Love Field to

scheduled passenger service by a state-certificated.

intrastate commuter line. Southwest Airlines Co. From

*Hon. Bailey Aldrich. Senior Circuit Judge of the First Circuit,

sitting by designation.

a judgment that, so long as Love Field remains open as

an airport. appellants may not exclude Southwest from

it, plaintiffs appeal. We affirm.

Dailas and Forth [sic] Worth, large cities in

north-central Texas about thirty miles apart, have been

rivals over the years. Perhaps partly as a result of this.

each developed its own airport. These lie more or Jess

between the two cities and are themselves only twelve

miles apart. In consequence of federal Civil Aeronautics

Board hearings commenced in 1962, the cities were

given to understand that. if they were unable to agree

within a seasonable time on a single port for interstate

air service to the Dallas-Fort Worth area. the CAB feit

obliged to designate one.

The handwriting being thus upon the wall. the cities

found themselves. after all, able to agree. In due course.

and with CAB blessing and encouragement. they

constructed a new airfield and persuaded all interstate.

CAB-certificated carriers then serving the area to agree

to move their services there.’ Southwest. an intrastate

commuter line certificated by the Texas Aeronautics

Commission to serve Love. did not agree and has

refused to move. By various ordinances, the validity and

effect of which is our concern here. Dallas has sought

to compel Southwest to vacate Love Field.?

‘Despite its contract. Braniff has refused to close operations

from Love. and Texas International has now reopened there

under the umbrella of a state-court injunction.

?The major ordinance which was before the court below and

on which it based its decision was the 1968 Regional Airport

Concurrent Bond Ordinance. This provides, in pertinent part

that the cities are to phase out Certificated Air Carrier Services

to their existing airfields such as Love to the extent “legally

permissible” and not in violation of “presently outstanding legal

11] Were Love Field a private airfield. constructed

without public funds. it may be assumed that its owner

commitments or covenants prohibiting such action.” The

ordinance defines the operations to be phased out as follows:

““CERTIFICATED AIR CARRIER SERVICES’ mean

aircraft operations of the following types when operating

on a regular and continuing basis, to wit:

“(1) interstate services conducted by commercial air

carriers according to published flight schedules and holding

certificates of public convenience and necessity or similar

evidences of authority issued by the Civil Aeronautics

Board of the United States of America or any successor

agency thereto;

“(2) services conducted by foreign air carriers according

to published flight schedules holding permits or similar

evidences of authority issued by the Civil Aeronautics

Board or any successor agency thereto or by any other

agency or department of the United States of America: and

“(3) intrastate services conducted by commercial air

carriers according to published flight schedules and holding

certificates of public convenience and necessity or similar

evidences of authority issued by the Texas Aeronautics

Commission of the State of Texas or by any successor

agency.

“It is provided. however. that this term shall not include

services provided by commercial ‘air taxi’ operators meeting

the requirements for exemption provided from time to time

by any rules and regulations of the Civil Aeronautics Board,

by the Texas Aeronautics Commission or by any other

agency of the United States of America or the State of

Texas having jurisdiction to provide such exemptions.”

Southwest urges, and the court below found, that the

ordinance is artfully worded to eliminate its intrastate scheduled

service only. since Texas does not regulate intrastate service of

CAB-certificated interstate carriers and the ordinance does not

require that these be moved. This seems correct, since none of

the intrastate runs of Southwest's interstate competitors is

certificated by the TAC and hence (3) of the above ordinance.

while applying to Southwest. has no effect on them. At oral

could exclude anyone he liked. Love. however, received

substantial federal assistance and therefore must “. .. be

availa'sle for public use on fair and reasonable terms

and without unjust discrimination;....” 49 USC.

§1718(1). formerly 49 U.S.C. §1110. In addition, the

Supreme Court of Texas long ago held that a Texas

Home Rule municipality might not, by denying to

common carriers use of its streets built in part at state

and federal expense, interfere with their use ot state

highways passing through the city. Such actions were

seen, in their extra-municipal effect. as going beyond

the power of local government. City of Arlington vy.

Lillard, 116 Tex. 446. 294 S.W. 829 (1927): City of

Fort Worth v. Lillard. 116 Tex. 509. 294 S.W. 831

(1927). The analogy seems close and valid.

{2} Appellant cities urge that reasonable class-

ification of uses-as distinguished from selection of

users-does not consitutute unjust discrimination” We

assume. without deciding, that this is so4

argument, this Court commented somewhat on this cunous and

unpleasant feature of the ordinance.

Thereafter. both cities enagéd and furnished to us ordinances

closing their individual municipal airports to a broader range of

uses. Dallas’ provides. in pertinent part:

“From and after May 1. 1974. Dallas Love Field and

Redbird Airport will be closed to all regularly scheduled

flights of aircraft that transport passengers or property for

hise. except regularly scheduled flights of aircraft that

transport passengers or Property for hire between only

Dallas Love Field or Redbird Airport and Dallas/Fort Worth

Regional Airport.”

Even so, we note that charter Passenger tlights by any size

of type of plane remain untouched.

*See Aircraft Owners & Pilots Ass’n v. Port Authority of NLY..

395 F Supp. 93(E_D.N.Y. 1969).

*If it is not so, then clearly neither Dallas nor any other

authority can require Southwest to move fromm Love so long as it

remains open to any use by aircraft.

If so. the question beocmes, as to Texas intrastate

flights. who is to make these just discriminations by

use-classification?’ It has a simple answer. In a recent

decision, the Texas Supreme Court had Occasion to

consider the powers of the Texas Aeronautics C om-

mission. It first correctly noted:

In all matters of flying safety. such as the air

worthiness of the aircraft and the skill of its

Operators, Air Southwest would be regulated by

the Federal Aviation Agency. All Air Southwest

aircraft and pilots would have federal certificates.

However. by flying only in intrastate commerce

and by not interlining with any CAB ceriificated

carrier, making no connection for Passengers or

baggage. Air Southwest will not require a certifi-

cate from the federal agency in charge of

economic regulations. the Civil Aeronautics Board.

Congress has not pre-empted the field of the

economic regulation of air catriers, and the states

have the power to act so long as there is no

conflict with federal law. 49 U.S.C.A. §1301(3)

and (10). and §137]: Western Air Lines Inc. v.

California, 42 Cal.2d 621. 268 P.2d 723 (1954),

cert. denied, 348 U.S. 859. 75 S.Ct. 87, 99 L.Ed.

677: see Island Airlines, Inc. v. C.A.B.. 331 F.2d

207 (9th Cir. 1964): Island Airlines. Inc. v. C.A.B..

*As to interstate flights. of course it would be the CAB, which

appellants admit is authorized to. and does. designate points of

origin and destination. The CAB has not, however, undertaken

to assert jurisdiction, if any it has. over purely intrastate carriers

such as Southwest, and indeed appears presently to acquiesce in

state licensing of intrastate portions of interstate routes. See

People v. Western Airlines, Inc., 42 Cal.2d 621, 268 P.2d 723.

appeal dismissed. 348 U.S. 859, 75 $y. 87, 99 L.Ed. 677

(1954).

363 F.2d 120 (9th Cir. 1966); Comment, 47 Texas

L.Rev. 275 (1969).

Our Brethren of the District of Columbia Circuit

emphatically agree and have so held in a case involving

tiuis general controversy. Texas Int’! Airlines, Inc. v.

C.A.B., 154 U.S.App. D.C. 113, 473 F.2d 1150 (1972).

And having determined that regulatory power over

Texas intrastate air carriers still reposed, with the State

of. Texas, the Texas Court futher noted:

The decision as to where the public interest lies

and what air service is best for Texas must be

made by the Texas Aeronautics Commission.

Texas Aeronautics Comm'n v. Braniff: Airways.

Inc., 454 $.W.2d 199 (Tex.Sup.1970).

{3-6] The power to designate “routes” has, from

times antedating any relevant to this case, been

confided to that Commission,’ It seems self-evident

that points of origin and destination are part of every

“route,” particularly short-haul ones.’ Indeed, to hold

that a city could deny the use of public facilities to an

airline certificated to it by the Texas Aeronautics

Commission would cripple, if not destroy. the Com-

mission’s powers to control intrastate routes.* Any city

having only municipal airports would have an absolute

veto power over routes to and through it—routes which

® Art. 46c—6. sub. 3, Vernon’s Ann. Texas St., as amended.

7The Attorney General of Texas has ruled that the

Commission's powers extend to routes entirely within one city.

Op. Att'y Gen’l of Texas. September 2, 1969. Here, little but

designating points of take-off and landing is involved.

®Cf. City of Arlington v. Lillard, 116 Tex. 446, 294 S.W. 829

(1927); City of Fort Worth v. Lillard, 116 Tex. 509, 294 S.W.

831 (1927). Town of Ascarate v. Villalobos, 148 Tex. 254, 223

$.W.2d 945 (1949), is not to the contrary in upholding. as ii

does, reasonable regulation by the municipality of pickup and

discharge points within the town for passengers of state-certified

buslines.

involve the convenience and necessity of the state

public, not merely that of the city. And a partial veto

would exist even where other facilities existed.

Southwest has been certificated by the Commission into

Love Field and directed to continue service there until

told otherwise. At a minimum, this constitutes Texas’

exercise of its power to determine that Santhoeses: 4

not an improper use of Love Field. Dallas being Texas’

creature, it may not declare otherwise.’ The cities’ road

to relief passes by the Texas Aeronautics Commissic a.

They cannot reroute it by enacting ordinances in Varying

forms of words on a subject which is beyond their

powers,'”

Other grounds are urged in support of the judgment

of the court below, including the asserted discrimina-

tory effect on Southwest of the 1968 Regional Airport

Concurrent Bond Ordinance noted at footnote 2 above

and the effect of covenants in outstanding airport

revenue bonds that Love will be kept open for

scheduled airlines and general use so long as the bonds

are unpaid. In view of our disposition of the case. we

think it unnecessary to discuss these.

Affirmed.

* Dallas is a Home Rule City. The Tex ss Censtitution. Art. 11.

§5. provides that no ordinance of such a city may be

incorsistent with the State’s general laws. Such a law is the

Texas Municipal Airports Act. which grants 10 municipalities

power to ¢esiablish and control the use of airports. but provides

in the same breath:

“No ordinance. resolution. rule, regulation of order

adopted by 4 municipality pursuant to this Act shall be

imconsistent with. or centrary to, any Act of the C ongress

of the United Siates or laws of this State. or to any

regulations promulgated or standards established pursuant

thereto.” (footnote omitted: emphasis added)

Art. 46d 7. VATS.

"The question whether an ordinance entirely closing Love

Field to ar traffic would be within Dallas’ powers is not

Presented here. and we. of course imply no view upon it.

APPENDIX B

The CITY OF DALLAS, TEXAS et. al..

Plaintiffs,

SOUTHWEST AIRLINES COMPANY,

Defendant,

Texas Aeronautics Commission,

Intervenor Defendant.

No. CA 3-5927C.

United States District Court.

N.D. Texas.

Dallas Division.

June 12, 1973.

MEMORANDUM OPINION

WILLIAM M. TAYLOR. Jr.. Chief Judge.

This case involves the right of access of Southwest

Airlines Co. (hereinafter sometimes referred to as

“Southwest”) to Love Field. a public airport owned

and operated by the City of Dallas, Texas. Plaintiffs.

the City of Dallas, the City of Fort Worth, and the

Dallas-Fort Worth Regional Airport Board, seek 4

declaratory judgment. pursuant to 28 U.S.C. Sec. 2201,

declaring their nght under federal and state law to

exclude Southwest. a purely intrastate air carrier. from

Love Field on and afier the opening of the new

Dallas-Fort Worth Regional Airport. The Regional

Airport. which is scheduled to open in the fall of 1973.

is a joint undertaking by the Cities of Dallas and Fort

Worth. each of which presently owns and operates its

own airports. Plaintiff. the Regional Airport Board. is

an administrative body. created by contract and

agreement between the cities, to which the cities have

delegated certain operating powers over the Regional

Airport. In conjunction with their joint effort on the

Regional Airport. the Cities of Dallas and Fort Worth

have covenanted to phase-out all Certificated Air Carrier

Services (as defined in their 1968 Concurrent Bond

Ordinance) at their respective wholly owned airports.

including Love Field, to the extent that they may

legally do so. and to transfer such services to the new

Regional Airport upon its completion.

Defendant, Southwest. has answered and counter-

claimed against the Cities and the Regional Airport

Board seeking. pursuant to 28 US... Sec. 2201 and

Sec. 2202. a declaration of its right under federal and

State law to remain at Love Field and an injunction to

Protect that right. The Texas Aeronautics Commission

(hereinafter sometimes referred to as the “TAC”). the

State agency charged with the economic regulation of

intrastate air carriers, has intervened as a Defendant in

this case. adopting the contentions of Southwest

Airlines and specifically urging that the attempted

ouster of Southwest from Love Field usurps the TAC’s

exclusive regulatory power over the intrastate air

carriers: is invalid under state law: and is contrary to. and

beyond the scope of. the powers delegated to Texas

Home Rule cities by the State of Texas.

Jurisdiction in this case is founded on the existence

of a Federal question and the amount in controversy.

28 U.S.C.. Sec. 1331: on an act of Congress regulating

commerce. 28 U.S.C. See. 1337: on 28 U.S.C... Sec.

1343(3) and (4): and on the pendent jurisdiction of the

Court. The Federal causes of action arise under the

OM osm

Federal Aviation Act of 1958, 49 U.S.C., Sec. 1301 et

seq.; the Civil Aeronautics Act of 1938, 49 U.S.C.. Sec.

401 et seq.; the Airport and Airways Development Act

of 1970, 49 U.S.C., Sec. 1701, et seq.; the Federal

Airport Act , 49 U.S.C., Sec. 1101, et seq.; 42 U.S.C.

Sec. 1983 and Sec. 1985(3); and the Fifth and

Fourteenth Amendments to the United States Constitu-

tion. The state causes of action are based on the Texas

Aeronautics Act, Art. 46c-1 et seq., Vernon's

Ann.Civ.St.; on the Municipal Airports Act, Art. 46d-1

et seq., V.A.C.S.; and on the Texas Constitution. The

state causes of action are based on a common nucleus of

operative fact with the Federal causes of action.

For many years the Cities of Dallas and Fort Worth

were engaged in a fierce, intense and sometimes bitter

rivalry for the business of commercial aviation and

commercial air carriers. Dallas enlarged and improved its

Love Field, which is approximately five to six miles

north-northwest of the downtown business district of

the City and Fort Worth, rather than undertaking the

enlarging and improving of its inadequate Meacham Field,

which is approximately five to six miles north of

downtown Fort Worth, constructed a fine large airport.

now known as Greater Southwest International Airport

(GSIA). midway between the two cities. The downtown

business districts of Dallas and Fort Worth are about 31

miles apart. and the two cities with the passage of time

have grown, extended their limits, and in some places

are almost contiguous. Only 12 miles separate Love

Field and GSIA. Serving two airports which were so

close together resulted in unnecessary expense to the

carriers as well as the taxpayers and inadequate and in-

complete air service to both cities. Happily. the two cities

have now joined hands and are well on the way to the

construction of what promises to be the finest airport

in the world. The two cities joined together in the

bringing of this lawsuit. This congenial alliance was not

exactly the result of a shotgun wedding but more than

a gentle nudge was provided by the Federal Govern-

ment’s Civil Aeronautics Board, hereinafter sometimes

referred to as CAB, which in August of 1962 instituted

an investigation known as the Dallas-Fort Worth, Texas

Regional Airport Investigation. Docket No. 13959. for

the purpose of determining whether or not the

certificates of public convenience and necessity of

interstate airlines under the CAB’s jurisdiction should

be amended so as to designate a specific airport as the

single point through which all interstate air carrier

service to Dallas and Fort Worth must be provided.

Finally. after many hearings, the CAB in 1964 entered

an interim order giving the two cities a period of 180

days in which to arrive at a voluntary agreement to

designate the single airport through which the CAB-

regulated carriers would serve the Dallas-Fort Worth

area. It indicated that if the Parties were unable to

agree on the designation of the airport to serve the

area, it would then proceed to issue a final determina-

tion and amend the certificates of the interstate “air

cafriers” under its jurisdiction so as to cause them to

serve either Love Field or Fort Worth’s GSIA. The CAB

has entered no further orders in the investigation and

none of the certificates of the carriers under CAB

jurisdiction have been amended.

Rather than designating an existing municipal airport

to serve the Dallas-Fort Worth area. the cities agreed to

construct and operate a new regional airport to be

located approximately mid-way between Dallas and

Fort Worth at Grapevine, Texas. Thereafter, on

Novermber 11 and 12, 1968, the the cities jointiy

adopted the 1968 Regional Airport Concurrent Bond

Ordinance authorizing the issuance of Dallas-Fort

Worth Regional Airport Joint Revenue Bonds for the

financing of the new airport. The 1968 Ordinance

provides, among other things, that the cities:

“...Shall take such steps as may be necessary.

appropriate and legally permissible (without

violating presently outstanding legal commitments

or covenants prohibiting such action), to provide

for the orderly and efficient and effective phase-out at

Love Field, Redbird, GSIA and Meacham Field, of

any and all Certificated Air Carrier Services, and to

transfer such activities to the Regional Airport effec-

tive upon the beginning of operation at the Regional

Airport.” Section 9.5.

The Ordinance also provides, in Section 9.5, for a

waiver of the phase-out provision if eight (8) members

of the eleven (11) member Regional Airport Board

determine that 4a waiver is necessary “(1) in

the interest of the public safety: (2) in the interest

of prudent and efficient operations at the Re-

gional Airport: or (3) in the interest of satisfying an

overriding public need for decentralized Certificated Air

Carrier Services in the Dallas-Fort Worth metropolitan

region considered as a w ole.” In addition. the

Ordinance specifies that if the grant of a waiver by the

Regional Airport Board results in a reduction in

Regional Airport revenues, the city benefiting from the

waiver must pledge to transfer back to the Regional

Airport such amount as will justly compensate such

Airport for its loss of revenue.

In early 1970, in order to insure that sufficient

revenues would be available to maintain and operate the

Regional Airport and to meet all debt. service

requirements 29 the Airport Revenue Bonds. the

Regi »nal Airport Board executed Letters of Agreement

with the eight (8) CAB certificated air carriers then

serving the Dallas-Fort Worth area.’ These letter

agreements provide that each signatory airline will

“... move all of its Certificated Air Carrier Services

serving the Dallas-Fort Worth area to the

Airport ...to the extent required under the terms of

the 1968 Regional Airport Concurrent Bond Ordinance.”

Fach of the CAB carriers also contracts “to pay rentals.

fees and charges for its use, operations and occupancy of

the Airport premises and facilities and the services apper-

taining thereto in an amount which, together with the

rentals. fees and charges paid by other Airlines and

others using the Airport premises and facilities. will be

sufficient ‘o produce total gross revenues required to

satisty the Airport Board's obligation...” to collect

each year monies sufficient to maintain and operate the

Airport, plus 1.25 times the’ debt service requirements

on the Regional Airport revenue bonds. and plus an

amount equal to any other obligations required to be

paid from the revenues of the Airport.

On June 18. 1971. after some three and one-half

years of hearings, litigation. and appeals occasioned by

competitive CAB certificated air carriers, Defendant.

Southwest Airlines Co. commenced its purely intrastate

'These air carriers are American Airlines. Inc.: Braniff

Airways. Incorporated: Continental Airlines. Inc.: Delta Air

Lines. Inc.: Eastern Air Lines Incorporated; Frontier Airlines.

Inc.: Ozark Air Lines. Inc.; and Texas International Airlines, Inc.

operations, as a “commuter airline’ between Love

Field, Dallas, and Houston and San Antonio, pursuant

to Certificate of Public Convenience and Necessity No.

22 issued by the Texas Aeronautics Commission (TAC).

Southwest’s Certificate stated that it was authorized to

serve the Dallas-Fort Worth region through “any”

airport in the area. On November 12, 1971. however.

the TAC issued a general order and regulation, styled

“Minute Order No. 22,” which directed all TAC

certificated airlines not to change the airports from

which they were then conducting their intrastate

services unless they first obtained written approval from

the TAC to do so. On and before November 12, 1971.

Southwest was operating from Love Field, as it

continues to do today.

On October 20, 1971, Southwest Airlines formally

advised the Regional Airport Board that it intended to

stay at Love Field when the eight (8) CAB certificated

airlines moved their operations from Love Field to the

Regional Airport. Southwest also withdrew from its

brief participation in planning sessions regarding the

transfer of services from Love Field to the Regional

Airport, and declined to execute the letter agreement

with the Airport Board that had previously been signed

by the CAB carriers.

On March 6, 1972, Southwest Airlines filed with the

Regional Airport Board an instrument called a “Petition

for Exemption, or Alternatively, Application For

Waiver,” by which it sought a determination from the

Airport Board that Southwest was not required by the

1968 Concurrent Bond Ordinance. and could not law-

fully be required to move to the Regional Airport, or, alter-

natively, that a waiver of the transfer requirement

should be granted under Section 9.S5(A) of the

Ordinance on the basis of an “overriding public need.”

After holding this Petition for three months without

acting upon it. the Airport Board decided on June 6.

1972. that the CAB rulings in the Dallas-Fort Worth

Regional Airport Investigation deprived the Airport

Board of jurisdiction to consider and act upon

Southwest's Petition. That same day the two Cities and

the Airport Board filed their Complaint against

Southwest, commencing this lawsuit.

{1] Among other contentions Plaintiffs argued in the

Complaint that they were required by the rulings of the

Civil Aeronautics Board in the Dallas—Fort Worth

Regional Airport Investigation to transfer al! certificated

air cafrier services to the new Regional Airport.

including the intrastate services of Southwest Airlines.

While Plaintiffs seem to have abandoned this position in

their closing arguments and brief. the C. ourt. neverthe-

Jess. finds their contention in this regard without merit

because. among other reasons: (1) the Civil Aeronautics

Board has no jurisdiction over a purely intrastate airline

such as Southwest: (2) it never attempted to assert any

Nsuch jurisdiction in its interlocutory orders entered in

the Regional Airport Investigation: (3) it has jurisdiction

only over “air carriers” engaged in “interstate air

transportation”: and (4) it has no jurisdiction over cities

or their airports. as such

[2-4] Pursuant to the Federal Aviation Act of 1958.

the Civil Aeronautics Board is authorized to exercise

regulatory jurisdiction only over air carriers engaged in

‘interstate air transportation” as that term is defined in

the Act.? Western Air Lines, Inc. v. California, 42

Cal.2d 621. 268 P.2d 723 (1954). appeal dismissed, 348

U.S. 859, 75 S.Ct. 87, 99 L.Ed. 677. Because

Southwest does not engage in, and is not authorized to

engage in, “interstate air transportation.” the CAB itsell

has held that it has no jurisdiction over Southwest

Airlines (then known as “Air Southwest Co.”). See

CAB orders 71-6-79 and 71-9-23 (1971). in Texas

International Airlines. Inc. v. Air Southwest Co..

Docket 23047. and Braniff Airways, Inc. v. Air Southwest

Co., Docket 23122. The CAB’s position that it lacks juris-

diction over Southwest has been repeatedly upheld

by the Courts. Texas International Airlines. Inc. v.

CAB. 154 U.S.App.D.C. 113, 473 F.2d 1150. 1152

(1972): Braniff Airways. Inc. v. CAB. ibid: Texas

Aeronautics Commission v. Braniff Airways. Inc.. 454

§.W.2d 199, 200 (Tex. Sup.1970). cert. denied. 400

U.S. 943. 91 S.Ct. 244, 27 L.Ed.2d 247 (1970). Under

the law. no orders or rulings by the Civil Aeronautics

Board in the Dallas-Fort Worth, Texas. Regional Airport

Investigation could be binding on. or in any way

applicable to. Southwest Airlines. Furthermore. there is

2The Federal Aviation Act defines “interstate air

transportation” as “the carriage by aircraft of persons of

property as a common carrier for compensation or hire or the

carriage of mail by aircraft. in commerce between, respectively

“(a) a place in any State of the United States... and a

place in any other State of the United States... or

between places in the same State of the United Staies

through the airspace over any place outside thereof...” 49

US.C. Sec. 1301(21).

Southwest Airlines does not carry any mail. It does not fly

between Texas and any other State. It does not fly through amy

airspace outside of the State of Texas.

10b

nothing in the language of the CAB orders which would

indicate that any of them were directed to intrastate

airlines such as Southwest.’

?As used in the CAB Orders. “air carrier” is a term of art and

not of general description. It is defined in 49 US.C. Sec.

1301(3) to mean “any citizen of the United States who

undertakes, whether directly or indirectly or by a lease ot any

other arrangement, to engage in air transportation .. .” (emphasis

added).

“Air transportation,” in tum, is defined as “interstate,

overseas, Or foreign air transportation or the transportation of

mail by aircraft.” 49 U.S.C. Sec. 1301(10) (emphasis added). The

Court finds no indication that the CAB in its Orders intended to

apply the term “air carriers” to purely intrastate airlines. i.e.. in

a manner at variance with the definition of that term in the

Federal Aviation Act.

Defendant Southwest has also contended, in answer to

Plaintiffs’ argument of federal compulsion arising from the CAB

Orders in the Dallas-Fort Worth Regional Airport Investigation.

that such Orders are non-coercive, speaking only in terms of a

“voluntary agreement™ between the Cities; that the CAB’s power

to designate a single airport for the Dallas-Fort Worth area

derives not from any CAB power over the Cities of Dallas and

Fort Worth, but solely from the CAB’s power to amend the

certificates of public convenience and necessity of the CAB

carriers, which certificates remain unamended to this date: and.

finally, that Plaintiffs themselves admit in their Complaint that

“no order terminating the investigation has ever been entered and

the entire proceeding remains open to this date. and under the

continuing jurisdiction of the Civil Aeronautics Board.” South-

west argues that. under these circumstances, the CAB has not yct

actually ordered any airline. interstate or intrastate. to leave Love

Field. and. consequently. that there is no substance to Plaintiffs’

argument that they are seeking to exclude Southwest pursuant to

CAB Orders. Southwest has also pointed out that it has never

been accorded either notice or hearing with respect to the

Regional Airport Investigation, and that. consequently. any

application to Southwest of Orders emanating from that

I1b

[5] Plaintiffs’ next agrument rests on the premise that

the CAB has ordered all CAB “air carriers” to

move to the Regional Airport, and that, since Love

Field and the Regional Airport have both received

federal funds pursuant to federal airport aid programs,

the Plaintiffs are required to exclude Southwest from

Love Field in order to avoid unjustly discriminating

against the CAB carriers in violation of 49 U.S.C. Secs.

1110 and 1718.4 This argument misconceives the

Investigation would be in direct violation of the Federal Aviation

Act. 49 USC. Sec. 1371(g), as construed in American Airlines,

Inc. v. Civil Aeronautics Board, 123 U.S.App.D.C. 310, 359 F.2d

624 (1966), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L-Ed.2d

75. the Administrative Procedure Act, 5 U.S.C. Secs. 554 and

556: and the Fifth and Fourteenth Amendments to the United

States Constitution, see Civil Aeronautics Board v. Delta Air

Lines. Inc., 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961)

Although the Court is of the opinion that each of these

contentions is valid, it does not deem it necessary to discuss

them extensively im light of its conclusion that the CAB Orders

were not directed to purely intrastate airlines and its further

conclusion that the CAB lacks jurisdiction over Southwest.

“The Federal Airport Act, 49 U.S.C. Sec. 1110. provided in

pertinent part:

“The Administrator shall receive assurances in writing,

satisfactory to him, that -

“(1) the aitport to which the project relates will be

available for public use on fair and reasonable terms and

without unjust discrimination.”

This provision was subsequently transferred to, and now

appears in, the Airport and Airway Development Act of 1970,

49 USC. See. 171%, which provides:

“As a condition precedent to his approval of an airport

development project under this subchapter. the Secretary

12b

function, purpose. and application of the federal

anti-discrimination statutes.

[6] The federal prohibition against unjust discrimi-

nation is designed to insure that the airport owner

or operator (referred to as the “sponsor” in both the

Statutes and the grant agreements) provides potential

users of the airport with a fair and nondiscriminatory

“opportunity” to use its facilities, provided the user can

lawfully do so. If the potential user cannot. or does

not, choose to avail itself of the “opportunity” to use

the airport, the airport operator is obviously not

required to exclude those who can and do choose to

use such facilities. Therefore. even if the Plaintiffs were

correct in arguing that the CAB has excluded the intrastate

carriers from Love Field, there would still be no merit

to their contention that. consequently. they must eject

Southwest Airlines. The forbidden discrimination can

occur only as between parties that are legally able to

serve Love Field and are desirous of so doing. To hold

otherwise would lead to exceedingly incongrous results.

Suppose. for example. the reverse situation existed

and a state regulatory agency had ordered an airline

under its jurisdiction to cease operations at a particular

airport. Under Plaintiffs’ view of the law, the airport

owner would then be required by federal law to

shall receive assurances in writing, satisfactory to him,

that -

“(1) the airport to which the project for airport

development relates will be available for public use on fair

and seasonable terms and without unjust discrimination?”

As discussed more fully hereafter, Dallas has received federal

aid pursuant to both statutes.

13b

exclude all CAB carriers who remained there. Sirnilarly,

suppose the CAB ordered some carriers under its

jurisdiction to leave Love Field, but not others. Under

Plaintiffs’ argument, the airport operator would then have

to exclude the remaining carriers in order not to

discriminate against those that had been ordered to

leave. Presumably. the same line of reasoning would

apply to voluntary abandonments by airport users.

Obviously, the Congress did not intend so bizarre an

interpretation of its anti-discrimination statutes. The

Court concludes that the removal of Southwest Airlines

is not required by any prohibition against unjust

discrimination.

[7] The Plaintiffs have similarly contended that

allowing Southwest to use Love Field, after the opening

of the Regional Airport, would violate 49 U.S.C. Sec.

1349(a), which provides:

“There shall be no exclusive right for the use of any

landing area or air navigation facility upon which fed-

eral funds have been expended.”

In interpreting this Statute, the Federal Aviation

Administration has pointedly observed:

“The presence on an airport of one person engaged

in an aeronautical activity as herein defined will

not itself be considered a violation of this policy if

there is no intent by express agreement, imposition

or unreasonable standards or requirements, or by

any other means to exclude others. This would

occur when the volume of business may not be

sufficient to attract more than one person. As long

as the opportunity to engage in an aeronautical

activity is available to those meeting the reasonable

qualifications and standards relevant to such

activity, the fact that only one person takes

14b

advantage of the opportunity does not constitute

the grant of an exclusive right” (emphasis added)

30 F.R. 13, 661.

The Plaintiffs have again attempted to use a statute

to justify conduct which that statute expressly

prohibits. If the CAB carriers are precluded from

serving Love Field after the opening of the Regional

Airport. such preclusion results from action by the

CAB. which has no jurisdiction over Southwest. or from

the voluntary Letter Agreements between the Plaintiffs

and the CAB carriers. The CAB carriers have not been

excluded from Love Field by the Plaintiffs. and.

therefore, Southwest's presence at Love Field after the

opening of the Regional Airport can in no way be

considered the prohibited grant of an exclusive night

Southwest has not voluntarily relinquished its right

to serve Love Field and that right has not been limited

or restricted by any regulatory agency with authority

over Southwest.

[3] Plaintiffs next argue that the Regional Airport is

part of the National Airport System Plap and is “totally

consistent with” the Airport and Airway Development

Act of 1970. 49 U.S.C. Sec. 1701 et seq. Plaintiffs

appear to argue that since they have received

$60,848.031.27 in federai funds from the Federal

Aviation Administration for the Regional Airport. and

the Secretary of Transportation has acted jointly with

the Cities of Dallas and Fort Worth in planning the

Regional Airport. the actions of the two Cities are some-

how rendered immune from. or supreme to. the

law.

The Court notes preliminarily that the Airport and

Airway Development Act was passed by C Oongress in

1Sb

1970, five years after the Plaintiffs had received FAA,

Commitments tor the Regional Airport Project and two

vears atter the enactment of the 1968 Oidinance which

required the termination of Certificated Air Carrier

Services at) Love Field upon the opening of — the

Regional Airport. Whether or not Plaintiffs’ actions

herein are “consistent” with this subsequent: tederal

legislation is immaterial. The important consideration.

and the one which is fatal to Plaintiffs’ contention in

any and all events, is that the Airport and Aitway

Development Act could not have authorized the

phase-out provision of the 1968 Ordinance. That Act.

while containing a prohibition against unjust diserimina-

tion by airport owners receiving federal funds. see 49

U.S.C. See. 1718, and while establishing a mechanism

for the disbursement of such tunds. does not conter

upon either the Federal Aviation Administration or the

Plaintiffs herein any economic regulatory power over air

carriers. The purpose of the Act 1s to promote the

planning and construction of airports, not to conter

upon cities the power to decide the routes of air

carriers, Which involves determinations of public

‘Nothing herein is intended to imply that the FAA may not

exclude particular aircraft from an airport pursuant to its power

to regulate safety in civil aeronautics; see Subchapter VI of the

Federal Aviation Act of 1958, 49 US.C. Sees. 1421 1430.

However. as testified to by Mr. Henry Newman, the Regional

Administrator of the FAA, there are no safety considerations

which require the exclusion of Southwest Airlines from Love

Field at this time and there are no foreseeable satety problems at

Love Field after the opening of the Regional Airport. Theretore.

the Court concludes that matters of safety are not involved in

this case.

Mr. Newman also sponsored an Environmental limpact

lob

toned thot the only tends allotted to the Cites of

Dallas ond bort Worth under this Act have been

allocated to the Regional Auport and not to Love

Field) Plaintiffs have not shown that the PAA has taken

apy action under the Act with respect to Love Field.

19} Tanaily. Plaintitts apparently contend that i

Southwest Airlines is permitted to remain at Love Field

aiter the opening of the Regional Airport. the ability ot

the Regional Airport Board to operate that Airport and

to retire the Gutstanding debt on the Airport Revenue

Bonds will be jeopardized due to diversion of needed

revenue to Love Field. It is not seriously argued by

Plaintitts that the revenues from Southwest Airlines’

three present aircratt and the passengers they carry are.

in-and of themselves. essential to the operation of the

Regional Airport. Instead. Plaintiffs maintain that

Southwest's continued presence at Love Field will. to

some extent. induce the CAB carriers to retain service

there fan argument that Southwest has characterized as

the “domino theory”) and that the cumulative loss of

revenue trom Southwest aad these other carriers will

have g signiticant impact on the financial security of

the Regiona! Airport.

In the opinion of the Court. the following evidence.

among other items. demonstrates that Plaintiffs have

overstated their fears concerning the financial impact

upon the Regional Airport of Southwest's remaining at

Love Field

Statement which pertained to the Regional Airport. rather than

to Dove Field and which was adopted five vears after the FAA

had committed funds to the Regional Airport. The relationship

of this Statement to Southwesi’s nght to remain at Love Field

Was Never explained or pressed by Plaintitts. and ne enviien-

mental issues relevant or material to this matter were ever raised

by Plauntifts

17b

1 The emht (8) CAB carric?s cxecuting the Letter

Agreements have agreed to pay any deficit: resulting

trom the operation of the Regional Airport. including

1.25 imes the annual debt service on the Regiona!

Airpor' Revenue Bonds. Plaintiffs’ Exhibits purporting

to show diversion of funds trom the Regional Airport

to Love Field in fact show that the Regional Airport

receives the same amount of revenues annually whether

Southwest Airlines is there or at Love Field. Any

diversion which occurs constitutes, at most, an added

cost to the CAB carriers. It does not penalize the

Regional Airport Board or the citizens of Dallas and

Fort Worth.

2. The outstanding Love Field “Semor Lien Bonds”

are a first lien upon Regional Airport revenues and

must be paid even before the Regional Airport Revenue

Bonds themselves. Thus, any revenue generated at Love

Field by Southwest Airlines detrays the costs and

expenses of the Regional Airport. if the income trom

Love Field is insufficient to pay i7s maintenance and

operating expenses and debt service.

3. The Plaintiffs’ “diversion” exhibits were basically

predicated upon the assumption that a// Dallas/Fort

Worth intrastate air service would be provided through

Love Field if Southwest Airlines remained there. It was

forceably demonstrated by Detendants that this assump-

tion was erroneous and that the “diversion” ligures

in question were theretore overestimated. Plaintitts’

own conduct and opinions contirm this. First South-

west Company, an investment banking firm under

contract to the Regional Airport Board as its financial

advisor, gave its written opinion on March 10. 1972.

that Southwest Airlines’ refusal to go to the new

1&b

airport Was nota fact of any material financial

significance to the $112 million in revenue bonds issued

on March 29 of that year. and Thomas Sullivan. the

Executive Director of the Regional Airport) Board.

concurred in that judgment in a written opinion of

March 16, 1972. pointing out that the new airport had

never included any projected revenues trom Southwest

Airlines in) its) own revenue projections. Similar

Statements of lack of “materiality” were made in the

Official Statements pertaining to bonds issued signifi-

cant to. the institution of this lawsuit and = were

concurred in by Mr. Decker Jackson of First Southwest

Company during his testimony.

Although not pleaded by Plaintiffs, this Court is not

indifferent to the financial needs of the Regional

Airport. However. the evidence which Plaintiffs have

presented on this point is at best inconclusive. and its

relevance to the fundamental legal issues in this case has

never been explained. Financial necessity can neither

legitimize an unjust discrimination nor augment the

basic powers of municipalities as granted to them by

the State. Plaintiffs have wholly failed to establish that

Scuthwest Airlines is required by law to remove its

operations to the Regional Airport upon its opening.

The Court now turns its attention to the question of

whether the Plaintiffs may directly or indirectly exclude

Southwest trom Love Field when the Regional Airport

opens.

[10] It is the conclusion of this Court that none of

the Plaintitfy have the power to deny Southwest access

to Love Field for any aspect of its operations. It is

likewise beyond the power of Plaintiffs. or any of

them, to require Southwest to provide any. services

19b

through the Regional Airport upon its opening. The

bases for this conchisics are numerous. but- their

number should not detract trom the fact that each

grounc is. ino and of itself. sufficient) to” preclude

Plaintilts trom denying Southwest access to Love Field.

[11] Love Field is public facility. and installation.

There is no dispute among the parties to this case that

Love Field has over the years been the recipient of

federal funds. property and land through various tederai

aid programs. and that it is subject to” federal

prohibitions against unjust discrimination and the grant

was the recipient of federal tunds through WPA grants.

During World War II. the United States Government

enlarged the field. improved the runways. and estab-

lished various facilities there. Following the War. in

1949 and again in 1955, the United States conveyed

equipment. buildings and land to Love Field pursuant

to the Surplus Property Act. and in 1950 and 1951

(and by subsequent amendments). grants in aid of

approximately $429,603.95 were made to Love Field

pursuant to grant agreements between the City of

Dallas and the Civil Aeronautics Administration acting

under the Federal Airport Act. In addition, the Federai

Aviation Administration has spent in- excess of

$29,000.000 for its general operations at Love Field

and for navigational aids. Finally. as previously noted.

the Regional Airport has received. since 1966. in excess

of $60,000,000 in federal aid pursuant to the Federal

Airport Act and the Airport and Airway Development

"See 49 U.S.C. Secs. 1110(1) and 1718(1): 5U App. Sec.

1622(g): and 49 U.S.C. Sec. 1349(a).

20h

Act of 1970) In accordance with present FAA policy.

the receipt ol such vid subteects all airports under the

operation and ownership of the recipients thereot to

the afocementioned statutory prolubitions. See 30 FR.

13. 66) and grant agreements to the Regional Airport.

Since both Dallas and Fort: Worth are recipients ot

federal funds through the grants-in-aid to the Regional

Airport. all of their municipal airports are subject to

federal restrictions.

In order to properly assess Southwest's argument

that its exclusion from Love Fieid will violate federal

law. it is necessury ic examine Plaintiffs’ present plans

for the use of Love Field after the Regional Airport

becomes operational.

As discussed above. the 1968 Concurrent Bond

Ordinance provides for the phase-out of all “Certifi-

cated Air Carrier Services” trom Love Field after the

opening of the Regional Airport. The term “Certificated

Air Carner Services” is defined in Section 2.1G of the

Ordinance as tollows:

“G. ‘CERTIFICATED AIR CARRIER SERVICES’

mean aircraft operations of the tollowing types

when operating on a regular and continuing basis.

to wit:

(1) interstate services conducted by commercial

air carriers according to published flight schedules

and holding certificates of public convenience and

necessity or similar evidences of authority issued

by the Civil Aeronautics Board of the United

States of America or any successor agency thereto:

(2) services conducted by foreign air carriers

according to published flight) schedules holding

permits or similar evidences of authority issued by

the Civil Aeronautics Board or any successor

agency. thereto. or by any other agency” or

2Ib

department of the United States of America: and

(3) intrastate services conducted by commercial

air carriers according to published tight schedules

and holding certificates of public convenience and

necessity or similar evidences of authority issued

bv the Texas Aeronautics Commission of the State

of Texas or by any successor agency.

It is provided, however, that this term shall not

include services provided by commercial ‘air taxi

operators meeting the requirements tor exemption

provided from time to time by any rules and

regulations of the Civil Aeronautics Board. by the

Texas Aeronautics Commision or by any other

agency of the United States of America or the

State of Texas having jurisdiction to provide such

exemptions.”

It should be noted that subsection (3) of the

definition of “Certificated Air Carrier Services” clearly

includes Defendant herein. Southwest Airlines Co.

However. “air taxi” operators are expressly excluded

from the definition, and therefore not subject to the

phase-out requirement. despite the fact that) such

operators carry passengers for hire on a scheduied basis:

are certificated by the TAC with respect to their

intrastate services: and are competitors of Southwest

Airlines. Moreover. the phase-out requirement ts also

inapplicable to all unscheduled charter flights. even

when conducted by CAB certificated air carriers: to

general aviation (i.e.. private and corporate aireralt):

and to unscheduled cargo flights, all ot which fall

outside the definition of “Certificated Air Carrier

Services.” The purely intrastate services of the eight

CAB carriers presently operating at Love Field are

likewise outside the scope of the Ordinance. inasmuch

as the only intrastate services covered by the Ordinance

;

2a0

are those certificated by the TAC and the intrastet

services of the CAB carriers are not so covered. Thus.

with respect. to intrastate air services. the 1968

Concurrent’ Bond Ordinance as applicable onli to

Southwest. since. except for the specifically exempted

air taxis. Southwest Airlines provides the only TAC

certificated intrastate air service to Love bieid.

[12] Plaintitts contend that after the opening of the

new Regional Airport. Love Field will become a general

aviauion facility due to the exclusion of all scheduled

commercial operations. and that the classification

scheme that has been adopted to accomplish this end is

4 reasonable one. The Court must disagree.

In the first place. Plaintiffs have not excuded all

scheduled commercial operations from Love Field. but

have expressly exempted air taxi operators trom the

phase-out requirement of the Ordinance. Whether the

air taxi operators actually choose to remain at Love

Field is not important: the controlling consideration is

that under the Ordinance they are eligible to do so.

Moreover. the purely intrastate operations of the

CAB carriers are also not included in the definition of

the air carrier services to be excluded from Love Field.

The Ordinance by its express terms phases out air

carrier “services” (emphasis added). The only intra-

state air carrier services to which the phaseout provision

of the Ordinance applies are those services performed

by carriers certificated by the TAC. With respect to

carriers certificated by the CAB. however. the only air

carrier “services” covered by the Ordinance are

interstate air carrier services. The Ordinance, therefore.

fails to exclude from Love Field any intrastate services

conducted by the CAB carriers.

23b

Since the phase-out provision of the 1968 Ordinance

applies only to intrastate services provided by South-

west Airlines. and not) to) such) intrastate services

provided by others, it must be deemed to be untustly

discriminatory.

Once again. what ts important in assessing Phanutis

contention of reasonableness is whether the purely

intrastate serjces of carriers other than Southwest are

actually excluded from Love Field by the Ordinance.

not whether by choice, contract, or regulatory order.

those carries will, in fact. operate trom the Regional

Airport in whole or in part. These considerations

inexorably lead the Court to the conclusion that the

phase-out provision of the 1968 Concurrent Bond

Ordinance would be unjustly discriminatory if applied

to Southwest Airlines.

Secondly, even if the classification scheme involved

in the 1968 Ordinance accomplished what Plaintitts

contend, this Court would still have to find it

unreasonable in other respects.

The evidence shows that after the Regional Airport

becomes operational. aircraft of every size and

description will be permitted to continue using Love

Field. There will be no restriction placed on the

frequency of flights at Love. which is presently

certificated for LF.R. and V.F.R. operations and will

not be downgraded after the opening of the Regional

Airport. Braniff will continue to use its Love Ficid

maintenance base for maintenance work on its fleet. All

sizes of planes can use Love Field for ferry flights and

refueling stops. and private aircraft of all sizes and

kinds will be positively encouraged to use Love trield.

Moreover. charter flights carrying passengers for hire on

an ounscheduled basiy wilh Coptimue te operite out ot

Love Field) without restriction oon the size at othe

aircramt they may use or on the Irequenes of then

Nights As already noted. the scheduled COMMuUler Gir

services (intrastate and interstate) furnished by air tani

operators will be permitted to continue at Love after

the move to Regional. In short. some of the oOperahions

to remain at Love Field will use planes larger than

Southwest's: some will use Planes nowier than South-

West's: some will use planes identical to Southwest's.

and, indeed, some of the aircraft Operations may be on

a scheduled basis and compete in) markets which

Southwest) presently serves. The question before the

Court ts whether. under these circumstances. Plaintiffs

can exclude Southwest from Love Field in the face of

the express statutory prohibitions against both unjust

discrimination and the grant of an exclusive night to use

the facilities of Love Field.

The “unjust discrimination” and “exclusive right”

Prohibitions were considered — in Judge Dooling’s

decision in Aircraft Owners and Pilots Association v.

Port Authority of New York. 305 F. Supp. 93

(E.D.N.Y.1969). a case involving the exaction of a

$25.00 fee for General Aviation aircratt landing or

teking off during the peak traffic periods at the three

major airports in the New York metropolitan area. The

suit) was brought by owners of private aircraft to

invalidate the landing fee on the grounds that it

“unjustly discriminated” against general aviation in

favor of commercial airlines. While the Court ruled that

the landing fee was not unjustly discriminatory on the

facts of the case before it. the rationale for its decision

makes it abundantly clear that. on the facts of this

25b

case. Plaintiffs have unjustly discriminated against

Southwest and have impermissibly granted an exclusive

right ‘o use Love Field to those allowed to remain

there cfter Southwest's exclusion.

It is clear from the Port Authority opinion that the

decisive factor in the Court’s ruling was the well-recog-

nized preference which commercial air traffic enjoys

over all other classes of aviation. As the Court said:

“But in any contest that had to be resolved in

terms of the public convenience and necessity. a

resolution in faver of the mass transportation

Carriers as against general aviation was the dictate

of simple reason.” 305 F. Supp. at 108.

The Court’s conclusion that a definite preference

existed for mass transportation over private aircraft was

buttressed by established FAA policy and by the

Federal Aviation Act itself. Insofar as that Act was

concerned, the Court noted that this preference was

justified by 49 U.S.C. Sec. 1304. which states that:

“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.”

[13] Since com:mercial aviation represents the right

of a greater number of people to use the navigable

airspace of the United States, implementation of the

Congressional policy requires a preference for com-

mercial aircraft over private aircraft (and by implication

over air cargo).

This preference for commercial aircraft is also

supported by FAA regulations, see 33 Fed.Register

17.897, from which the Court quoted extensively in the

Port Authority opinion. As the FAA stated:

26b

“When capacity limitations compel a choice

however, the public senice Olfered py the

COMMON camer must be preferred.’

Ihe second element which Judge Dooling considered

in evaluating the legality of the Port Authonty’s $25.00

landing fee was whether the imposition of such tee

resulted in a reasonable limitation of a Particular airport

use or the complete exclusion of that use

In this regard. Judge Dooling made specific note of

[WoO points in his discussion concerning the reasonable-

ness Of the fee imposed: (1) the fact that the fee Was

not in effect at all times. but only at certain peak

traffic hours: and (2) the fact. that even with the

imposition of the higher fee. some general aviation

aclivity continued during such peak traffic periods As

the Court observed:

“The fee schedule. however... . does not exclude

any General Aviation aircraft trom the three major

airports cither during olt-peak hours or even

during peak hours.” 305 F.Supp. at p. 107.

The Court's care in noting that no outright exclusion

of any class of aeronautical use was Involved in the case

demonstrates that such an outright exclusion. if

permissible at all. would certainly bear a heavy burden

of justification.

In the case at bar. Plaintiffs have attempted to

subject the priorities which were so prominent in the

Port Authority case to a radical inversion. In place of

the preference accorded mass transportation in that

case, Plaintiffs herein. in determining who shall have

access to Love Field. have preterred Private aircraft.

corporate jets. unscheduled cargo flights. maintenance

flights. and ferry flights over Southwest's commercial

27b

air service. Plaintiffs do not purport to maximize public

access to a public airport supported by federal funds.

Instead, they overtly declare their purpose to be the

suppression of competition in pursuit of a pureiy

economic advantage for the Regional Airport. As the

1968 Bond Ordinance itself states in Section 9.5A

thereof:

“It is acknowledged and understood by the Cities

that they, in Love Field, Redbird, GSIA and

Meacham Field, own and operate airports which

by their nature are potentially competitive with

the operation of the Regional Airport... Accord-

ingly, the Cities ...shall take ...steps...to pro-

vide for the orderly, efficient and effective phase

out [of Certificated Air Carrier Services at the

above named airports] .”

This must be contrasted with the Port Authority case.

where the justification for the restrictive action taken

was a severe shortage of airport capacity, a situation

which will not exist in the Dallas/Fort Worth Region in

the foreseeable future and which makes mandatory a

choice between different classes of rights.

It is readily apparent from the face of the 1968

Ordinance that the Cities’ only reason for barring

Southwest Airlines from Love Field is to avoid the

potential competitive effect on the Regional Airport (7

e., the CAB carriers serving it). regardless of the public's

interest in the continuance of convenient and economi-

cal short haul commuter air service. This attempted

justification is directly contrary to the policy under-

lying the federal prohibition of the grant of an

exclusive right at airports upon which federal funds

have been expended. As then U.S. Attorney General

Robert H. Jackson declared:

28b

“Legislative history shows that the purpose of the

provision is to prohibit monopolies and combina-

tions in restraint of trade or commerce and to

promote and encourage competition in civil

aeronautics in accordance with the policy of the

Act * * * The grant of an exclusive right to use an

airport for a particular aeronautical activity, such

as oan air carrier. falls within Section 303

Proscribing any exclusive right for use of any

landing area.” *

On the tacts herein, the Court must conclude that a

prima facie case of “unjust discrimination” and of the

Wegal grant of an “exclusive right” has been established

and that Plaintiffs’ purported justifications theretor ure

inadequate.”

b14] First. with respect to justification. Plaintilts

herein may not clam, as Defendant did in the Port

Authority, case. that the exclusion of Southwest from

Love Field serves the “public interest.” The TAC,

which is charged by statute with determining the public

convemence and decessity in the area of intrastate air

transportation, has granted Southwest a certificate

*A prima facie case of unjust descrimination may be said to exist

where. in the terms of ihe grant agreements. the Sponsor fails to

“keep the Airport open to all types, kinds, and classes of aeronautical

use without discrimination between such types, kinds. and

classes... ~

This interpretation of a prima facie case of unjust disenmmination

is consistent with the interpretation Courts have given that term

under Sec. !374(b) inpassenger cases. In those decisions. the Courts

have held that a preference for one passenger over another makes out

a prima facie case of “unjust discrimination” sufficient to impose the

burden of justification on the air carrier. See Archibald v. Pan

American Airways. Inc.. 460 F.2d 14, 16(9thCir 1972). CP Wills v.

Trans World Airlines, Ine.. 200 F Supp. 360(8.D Cal. 1961).

29b

empowereing it to serve “any” airport of its choice in

the Dallas/Fort Worth area and, through Minute Order

No. 22, has prohibited Southwest from discontinuing

service to Love Field. The Commission’s judgment in

these matters is not subject to challenge before this

Court. Although Plaintiffs appeared before the CAB

with respect to the amendment of the certificates of

the interstate air carriers so as to designate single

airport service, they have not attempted to secure

similar action by the TAC concerning Southwest. The

TAC’s existing determination that the public interest

requires Southwest to serve Love Field must therefore

be deemed conclusive and not subject to collateral

attack in this action. See Tampa Phosphate R. Co. v.

Seaboard Coast Line R. Co. 418 F.2d 387. 398. 399

(Sth Cir. 1969), cert. denied. 397 U.S. 910. 90 S.Ct.

907. 25 L.Ed.2d 90 (1970): Thompson et al. v. Texas

Mexican Ry. Co., 328 U.S. 134. 66 S.Ct. 937. 90 Liked.

1132 (1946).

[15] Secondly, Plaintiffs’ purely economic justifica-

tion for excluding Southwest Airlines from Love Ficld

must yield to the recognized preference tor commercial

air traffic and to the TAC’s determination of where the

public interest lies in the area of intrastate air

transportation.

Thirdly. Plaintiffs’ onsystematic classification diserim-

inates not only between different types and kinds of

aeronautical use, but also between uses within the same

general class as well. Such discrimination is particularly

objectionable because of the anti-competitive effects it

30b

has on the airlines and the public they serve.” Plaintitts

have broken up the class of commercia! passenger

Service into several subclasses with no consistent

rationale

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.