# Petition for Writ of Certiorari — City of Dallas v. Southwest Airlines Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0412%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1079 ## 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, v. 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. l. 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, 16 -4 oo 0 awe dn (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 4 “ 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 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 5 (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 6 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. 7 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.” 8 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. 9 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. 10 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). 12 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. 13 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). 14 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. 15 I. 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 16 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. 17 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 18 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 19 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). 20 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. 21 — 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) 22 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. 23 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 24 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 25 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- 26 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. 27 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. 28 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 Se “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. 29 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. 30 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. 3] 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. 32 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. 33 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. 34 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 35 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 36 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). 37 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). 38 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. 39 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) 40 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. 4] 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- 42 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 43 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 44 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 45 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. 46 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. 47 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 48 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 49 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 50 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 51 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.). 52 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.” 53 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 54 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 55 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. 56 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 57 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.). 58 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 59 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 la 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. 2a 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 3a 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 4a 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. Sa 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). 6a 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. 7a 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. Ib APPENDIX B The CITY OF DALLAS, TEXAS et. al.. Plaintiffs, v. 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 2b 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 3b 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 4b 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 Sb 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. 6b 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. = 7b 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 8b 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 carrie [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0412%3A1. Public record. Not legal advice.