# Appellees Brief — Burbank v. Lockheed Air Terminal, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellees Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 624 ## Text Supreme Court of the United States October Term, 1972 No. 71-1637 Tas Crry or Bunnaxx, et al., Appellants, vs. Looxexep Am TERMINAL, Ino., et al., 8 Appellees. on Appeal from the United States Court of Appeals for the Ninth Circuit BRIEF OF THE APPELLEES Warren CHRIsTOPHER Rates W. Dav Micuazt D. Zrmmmenman 611 West Sixth Street Los Angeles, California 90017 Attorneys for Appellees Of Counsel: OMatvexy & Myzzs Kmruanp & Paoxarp (Dome of L.A, Financial Printers, Los Angeles. Phone (213) 748-0651 TABLE OF CONTENTS Page VVV iv Opinions Belo ꝶ h.... 1 Questions Presente 2 Constitutional and Statutory Provisions Involved 2 STATEMENT PPP 5 1. Nature of the Case and Prior Proceedings 5 % %%% „„ b 6 a. The Hollywood-Burbank Airport 7 b. The Curfew Ordinance .................. 10 e. The Scope of Federal Regulation 10 d. The Efficient Use of Airspace 11 e. Noise Abatement Regulations ............ 12 f. Effect on Commerce ..................... 14 8. Decision of the District Court 16 4. Decision of the Court of Appeals 17 SUMMARY OF ARGUMENT .................. 18 SE Ce ee 18 r ĩ ˙ o—A———. 19 a pets A enw neeee ce 21 II. Commerce Clauses 21 I ĩ ² ˙ AAA 23 r,, /ĩ ĩ ⅛ ó—— ̃ ˙¹uĩ· „ L The Federal Government Has Preempted the Management of Airspace and the Reg- ulation of Aircraft Operations and Air- rr Png i aka aoe Kae 25 A. The Federal Aviation Act of 1958 26 3 Pag B. The 1968 Noise Abatement Amendment % C. The Scheme of Federal Regulation 8 1. Regulations for Noise Abatement . # 9. Regulation for Efficient Use of Nav- igable Airspace % D. The Noise Control Aet of 1972 N 1. The New Statute N 2. Legislative History of the 1972 Act 40 3. Appellants’ Views on the New Act. 8 E. The Tests for Federal Preemption Are Wally ht... 4] 1. Standards for Preemption ......-. 4] 2. Fulfillment of the Tests 4g F. Prior Decisions Supporting the Hold- ing of Federal Preemption ......----- 53 1. Lower Federal Decisions 53 2. State Court Decisions 57 3. The Supreme Court Precedents II. The Burbank Curfew Ordinance is in Con- flict With Federal Lac A. The Curfew Ordinance Conflicts With the FAA Nighttime Noise Abatement a i pax coer betes cee ce B. The Curfew Ordinance Interferes With the Use of Navigable Airspace C. The Curfew Ordinance Restricts Fed- erally Certificated Richts Page III. The Burbank Curfew Ordinance Violates 71 A. The District Court Properly Found That a Single Authority Is Required for Airspace Management and Regula- tion of Aircraft Operations and Air- The District Court Properly Found the Burbank Ordinance To Impede Sub- stantially the Free Flow of Interstate CONCLUSION Noise Control Act of 1972, Public Law 92-574, 86 Stat. 1234, 92nd Congress, H.R. 11021, October 27, 1972. —iv— CITATIONS Cases Page Aircraft Owners and Pilots Association v. Volpe, Civil Action No. 927-69, D.D.C. (unreported) .... 37 All American Airways, Inc. v. Village of Cedarhurst, 106 F. Supp. 521 (E. D. N. V. 1952), af d, 201 F. 2d 273 (2d Cir. 1953)))))) tr 76, 79 Allegheny Airlines, Inc., v. Village of Cedarhurst, 132 F. Supp. 871 (E. D. N. V. 1955), af d, 238 F. 2d G19 (d Cir. 105686))))))))))ꝗ 57 American Airlines, Inc. v. City of Audubon Park, Kentucky, 297 F. Supp. 207 (W. D. Ky. 1968), af d, 407 F. 2d 1306 (6th Cir. 1969), cert. denied, 396 U.S. %%/%/ / ²˙ 00 53, 75, 79 American Airlines, Inc., v. Town of Hempstead, 272 F. Supp. 226 (E. D. N. J. 1967), af d, 398 F. 2d 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969) oe ae ee aes ey 31, 34, 53, 55, 75, 77, 19 Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959) 72, 79 Braniff Airways v. Nebraska State Board, 347 U.S. Oh FOUND yas so rn ES EG tno oot 63 California v. Zook, 336 U. S. 725 D 48 Campbell v. Hussey, 368 U.S. 297 (196117 48 Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 83 P Cone eee et ve 8 69 Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 . 4 City of Chicago v. Atchison, Topeka & Santa Fe Rail- way, 357 U.S. 77 (1958) ... C 50 P Colorado Anti-Discrimination Comm'n v. Continen- 855 tal Air Lines, Inc., 372 U.S. 714 (1963) 62 Edwards v. California, 314 U.S. 160 (1941) 75 Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707 (1972) ........ 63 Fitzgerald v. Pan American World Airways, Inc., 229 F.2d 499 (2d Cir. 1956) .................... 29 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) .... 72 Griggs v. Allegheny County, 369 U.S. 84 (1962) 32, 62 Head v. New Mexico Board, 374 U.S. 424 (1963) 48, 63 Hines v. Davidowitz, 312 U.S. 52 (1941) .......... 65 Hood & Sons v. DuMond, 336 U.S. 525 (1949) 77 Huron Portland Cement Co. v. Detroit, 362 U.S. 440 %%0%ÿ%%õ AA cere cceclecece 60 Kelly v. Washington, 302 U.S. 1 (1937) 74 Lockheed Air Terminal, Inc. v. City of Burbank, 318 F. Supp. 914 (C. D. Cal. 1970, 4d, 457 F. 2d 667 // ˙¾²˙ ——«V er 1 Loma Portal Civic Club v. American Airlines, Inc., 61 Cal. 2d 582, 39 Cal. Rptr. 708 (1964) 59 Minnesota v. Barber, 136 U.S. 313 (1890) .......... 77 Mississippi Railroad Comm’n v. Illinois Central RR, 203 U.S. 335 (1906) 77 Morgan v. Virginia, 328 U.S. 373 (1946) 71, 72 Opinion of the Justices, —— Mass., 271 N. E. 2d * VVV 33, 57 tn vania R. Co. v. Pica Coal Min. Co., 237 8 121 MN ne Gro A Page Perez v. Campbell, 402 U.S. 637 (1971) .. 17, 21, 33, 6 Porter v. Southeastern Aviation, Inc., 191 F. Supp. 42 (M.D. Tenn. 1961· eee eee % Railroad Company v. Husen, 95 U.S. 465 (1877) ... 1 Rice v. Chicago Board of Trade, 331 U.S. 247 (1947) & Rice v. Santa Fe Elevator Corp., 331 U.S. 218 Pw. 20, 47, 64 Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225 TW geecieathenne- res 64 South Carolina Highway Dept. v. Barnwell Bros., %% VMVm̃ꝓqðꝛ·]V?ĩ n Southern Pacific Co. v. Arizona, 325 U.S. 761, (1945) JJ hee ay ada a 22, 71, 75, 78 Sperry v. Florida ex. rel. Florida Bar, 373 U.S. 379 P77)! 68 Stagg v. Municipal Court, 2 Cal. App. 3d 318, 82 Cal. — ee eee 58 Teamsters Local v. Lucas Flour Co., 369 U.S. 95 Bs ³ hr 7˙— '—w 4* 42 (1907) ee en gr aa ree Wat ee en's ob oe 29 Township of Hanover v. Town of Morristown, 108 N.J. Super. 461, 261 A.2d 692 (1969) 58 United States v. City of New Haven, 447 F.2d 972 (2d Cir. 1971) EDO ESS PSO Ob 56, 75 United States v. Town of Morristown, Civil No. 1214 TR oe Ch ʃ!k 59 Virginians for Dulles v. Volpe, 344 F. Supp. 573 (E. D. Va. 1972), appeal pending 59, 62 1 United States Constitution Statutory Materials Airport and Airway Development Act of 1970, Federal Airport Act of 1946, ch. 251, 60 Stat. 170 Federal Aviation Act of 1958, 49 U.S.C. 1430(a) (5) 1430(a) (8) Federal Aviation Act of 1958, as amended by Noise Control Act of 1972 § 611(b) HR. 11021, 92d Cong., 2d Sess............... 40, 42, 44 Judicial Code, 28 U.S.C. § 1254(2) Noise Control Act of 1972, Pub. L. No. 92-574, 86 Stat. 1234 §2(a) (3) Postal Reorganization Act, 39 U. S. C. §$ 101(f) 8, 3342, 92d Cong., 2d Sess. §502(a), Comm. Print No. 6 Congressional Materials HR. Rur. No. 92-842, 92d Cong., 2d Sess. (1972) . 44 8. Rar. No. 1811, 85th Cong., 2d Sess. (1958) 26, 27, 36, 51 8 Rar. No. 1353, 90th Cong., 2d Sess. (1968) 19, 32 Rar. No. 92-1160, 92d Con., 2d Sess. (1972) a 45 iigressional Debates ww X a October 17, 1972, House ................... October 18, 1972, Senate de Tn ee 8 Weekly Comp. of Pres. Docs. 1582 (Oct. 28, 7 ²˙ . mee Administrative Proceedings Fort Worth Investigation, 9 [%%% TTT Pacific Northwest-California Investigation, C.A.B. Docket No. 18884 (May 12, 1970) ........ Petition of Dreifus, FAA Regulatory Docket — ÄVD f.., ˙m-m Regulations and Orders —. , vere ccc eces 14, 35, 50 / ůàA ˙ w 34 Mick oo. ils ĩ ͤ—M— ies coke 34 JfſJ7)h i VIS Maer 'e isp a 5. 13, 66 77h k 34 // ĩ˙¾ SOREN peg earn ae 36 FAA Order BUR 7100.5B (Sept. 4, 1969) 18, 21,65. ee ee i eee... 29, 53, 61 ED nage ae en ee 29 OG We MN . ie... 14, 3 RP —U—„ Ä ce eed 14 — . 14, 35, 50 Secondary Material Civil Aeronautics Board Handbook of Airline Statistics, Tables 15, 27 and 40 (1971) .......... 23 IN THE Supreme Court of the United States October Term, 1972 No. 71-1637 Tas Crry or Bunnaxk, et al, Appellants, v8. Looxuzep Am Tznminat, Ixo., et al., Appellees. On Appeal from the United States Court of Appeals for the Ninth Circuit BRIEF OF THE APPELLEES OPINIONS BELOW The opinion of the court of appeals, reported in 457 F.2d at 667, is set forth at A. 410. The district court opinion, reported in 318 F. Supp. at 914, is reproduced at A. 341. The findings of fact and conclusions of law Pad by the district court are reproduced at A. 375. 3 QUESTIONS PRESENTED 1. Was the court of appeals correct in holding that the Burbank curfew ordinance is invalid under the Su. premacy Clause because the city is purporting to exer- cise its police power in an area which has been preempted by the federal government? 2. Was the court of appeals correct in holding that the Burbank curfew ordinance is invalid under the Suprem- acy Clause because the ordinance is in conflict with an order of the Federal Aviation Administration applicable to nighttime flight operations at the Hollywood-Burbank Airport and with the federal statutory right of free transit through the navigable airspace? 3. Does the Burbank ordinance constitute an invalid attempt to regulate a phase of the national commerce which, because of its speed, volume, and complexity, must be regulated by a single authority? 4. Does the burden imposed bn interstate commerce by enfgrcement of a local curfew render the Burbank ordinance invalid!“ CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Supremacy Clause, Art. VI, cl. 2 of the United States Constitution, reads as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; a and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Commerce Clause, Art. 1, sec. 8, cl. 3 of the United States Constitution, reads as follows: “The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ” The Federal Aviation Act of 1958, 72 Stat. 737, 49 U.S. O. § 1301, et seq., is centrally involved in this appeal, as are the regulations thereunder, 14 C.F.R. Parts 71-77 and 91-97. Among the pertinent sections of that Act are the following: Section 1508 of 49 U.S.C. provides, in part: “The United States of America is declared to pos- sess and exercise complete and exclusive national sovereignty in the airspace of the United States * Section 1304 of 49 U.S.C. provides: “There is recognized and declared to exist in be- half of any citizen of the United States a public right of freedom of transit through the navigable air- — of the United States.” Section 1348 of 49 U.S.C. provides, in part: 8 . da) The Administrator is authorized and directed to develop plans for and formulate policy with re- 3 spect 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 limits tions as he may deem necessary in order to insure the safety of aircraft and the efficient utilization of such airspace ....” “ * „(e) The Administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the navigation, protection, and identification of aircraft, for the pro- tection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision between aircraft, be- tween aircraft and land or water vehicles, and be tween aircraft and airborne objects.” Section 7 of the Noise Control Act of 1972, Pub. L. No. 92-574 (Oct. 27, 1972), which amends section 611 of the Federal Aviation Act, 49 U.S.C. § 1431 (providing for control and abatement of aircraft noise and sonic boom), is set forth in Appendix A to this brief. Burbank ordinance No. 2216 (the “curfew ordinance”), held invalid below, added section 20-32.1 to the Burbank Municipal Code. It provides as follows: “Sec, 20-32.1 Aircraft Take-Offs. “(a) Pure Jets Prohibited from Taking Off Be tween 11:00 P.M. and 7:00 A.M. “Tt shall be unlawful for any person at the controls of a pure jet aircraft to take off from the Hollywood- Burbank Airport between 11:00 P.M. of one day and 7:00 A.M. the next day. | -_ “(b) Airport Operator Prohibited from Allowing Take-Offs. pel mn “It shall be unlawful for the operator of the Holly- wood-Burbank Airport to allow a pure jet aircraft to take off from said airport between 11:00 P.M. of one day and 7:00 A.M. the next day. “(c) Exception: Emergencies. 8 This Section shall not apply to flights of an emergency nature if the City's Police Department is contacted and the approval of the Watch Com- mander on duty is obtained before take-off.” STATEMENT 1. Nature of the Case and Prior Proceedings. This is an appeal under 28 U.S.C. § 1254(2) from a decision of the United States Court of Appeals for the Ninth Circuit entered on March 22, 1972, which unani- mously affirmed a judgment of the United States District Court for the Central District of California. The judg- ment of the district court declared invalid an ordinance of the City of Burbank which purports to impose a night curfew on jet aircraft takeoffs at Hollywood-Burbank Airport. Appellants are the City of Burbank and various of its officials responsible for enforcement of the ordi- nance. Appellees are Lockheed Air Terminal, Inc., owner and operator of the Hollywood-Burbank Airport, Pacific 2 Airlines, an intrastate carrier, and the Air ranspo: Association of America, an unincorporated dciation consisting of some thirty-two United duled interstate air carriers. * On March 31, 1970, the City Council of Burbank passed the curfew ordinance prohibiting takeoffs of jet aircraft from the Hollywood-Burbank Airport between 11:00 pm and 7:00 a.m. Following the effective date of the ordi- nance, Lockheed Air Terminal, Inc., the airport owner, and Pacific Southwest Airlines filed this action in the United States District Court for the Central District of California seeking to have the ordinance declared uncon. stitutional and to enjoin its enforcement. The Air Trans. port Association of America was permitted to intervene as a plaintiff. The Federal Aviation Administration ap peared amicus curiae in support of plaintiffs, and the State of California appeared in that capacity in support of defendants. On September 24, 1970, after trial, the district court (Crary, J.) filed a memorandum opinion holding that the plaintiffs were entitled to declaratory and injunctive re lief on both Supremacy Clause and Commerce Clause grounds (A. 341). On November 30, 1970, the district court signed and filed its findings of fact and conclusions of law (A. 375) and entered its judgment declaring the Burbank ordinance unconstitutional, illegal, and void, and enjoining its enforcement (A. 408). Burbank sought review in the Ninth Circuit. Again, the Federal Aviation Administration and the State of California participated as amici. On March 22, 1972, the court (Browning, Duniway and Trask, J.J.) issued its opinion affirming the judgment of the district court (A. 410). 2. The Relevant Facts. The district court’s detailed Findings, of course, pro- vide the authoritative context for this appeal (A. 375- ca Soe 401).* Appellants’ Statement of the Case” largely ig- nores the findings and fails to deal adequately with the facts relevant to the issues presented by this appeal. The relevant findings and facts established by the rec- ord are summarized below: (a) The Hollywood-Burbank Airport. The Airport was dedicated May 30, 1930, and has been in continuous use since that time by both private and commercial air- craft. There are two runways for the operation of air- craft at Hollywood-Burbank Airport, each of which can be used in either direction depending upon wind condi- tions. The Airport occupies approximately 535 acres, of which approximately 128 (including significant portions of each runway) are owned by the federal government. Although the major portion of the Airport lies within the City of Burbank, a portion of the Airport is within the City of Los Angeles. (F.F. 6, A. 377; F.F. 18, A. 380-81.) Hollywood-Burbank Airport is an important “satel- lite” airport in the national air transportation system. Satellite airports, such as Hollywood-Burbank or Oak- land International and San Jose Municipal in the San Francisco area, are airports that serve geographical areas immediately adjacent to major metropolitan areas which also have one or more “hub” or major airport facilities. These satellite airports play an essential role in the national air transportation system in relieving air and ground congestion, in reducing air-traffic delays at — _* The Burbank brief is replete with unproven and often dmelevant factual assertions, purportedly based upon such non- brd sources as articles in newspapers and other periodicals, _ statements I ed i during the con- or ae sac <4, ie on. 5930. as ae primary airport centers, and in providing more con- venient service to the surrounding areas, which are of sufficient size in terms of population and economy to require their own air service. The important role of satellite airports is recognized by the Civil Aeronautics Board in its route investigations. (F.F. 11, A. 379; FF. 13, A. 379.) 8 Héllywood-Burbank Airport forms a vital link in inter- state and intrastate commerce. It is included in the National Airport Plan promulgated by the Administra- tor of the Federal Aviation Administration pursuant to the Federal Airport Act of 1946, ch. 251, 60 Stat. 170.° And it is the most convenient airport in the greater Los Angeles metropolitan area for the entire San Fernando Valley, Hollywood, and the cities of Burbank, Glendale, Pasadena and Alhambra, an area containing a populs- tion of 2.2 million persons. (F.F. 14, A. 379; F. F. 1, A. 380.) (The City of Burbank has a population of 95,000 (F. F. 7, A. 377).) In 1969 there were approximately 32,000 air carrier movements at Hollywood-Burbank Airport serving 1,178,000 commercial passengers in regularly scheduled interstate and intrastate transportation. Approximate- ly 97 percent of these operations were conducted by pure jet aircraft. (F.F. 20, A. 381; F.F. 6, A. 377.) Hollywood-Burbank Airport has been an important commercial airport for Los Angeles for a number of years. Until 1946 all commercial flights into or from Los Angeles were conducted out of this airport. In that year Hollywood-Burbank counted 82,000 commercial This Act superseded by the Airport and Airwa Devel- opment Act of 1970, which forward the nent of & “national airport systems plan.” 49 U.S.C. § 1712 (a). 3 movements serving 1, 200, 000 passengers. Military jets begun operating from the Airport immediately following World War II. Commercial service at Hollywood-Burbank declined in 1947 with the opening of what is now Los Angeles Inter- national, but by 1953 had rebounded to approximately 780,000 passengers annually. The advent of large com- mercial jet aircraft, which could not be accommodated at Hollywood-Burbank Airport, again caused a dip in the number of operations in 1959. But with the intro- duction of two and three-engine jet aircraft in 1965, the Airport experienced an upsurge in commercial opera- tions which had continued to the time of trial. (A. 140-42, 159.) The Burbank City Council has on several occasions requested and supported additional air transportation services at Hollywood-Burbank Airport in route pro- ceedings before the Civil Aeronautics Board. The Mayor and City Council of Burbank expressly requested and supported the additional air service from Burbank to the Pacific Northwest, which route was awarded by the CAB on May 12, 1970 to Continental Air Lines. The CAB order required that this service be provided through the Los Angeles satellite airports, including Hollywood- Burbank Airport, rather than through Los Angeles Inter- national.“ (F. F. 15-16, A. 380.) — freeways to . — 8 2 . n a oe e (b) The Curfew Ordinance. Following enactment, Bur- bank city officials publicly announced their intention to enforce the curfew ordinance (F.F. 9, A. 378). Immedi- ately, the ordinance required PSA to cancel a regularly scheduled flight which it had operated for over two years serving an average of 125 passengers, 80 of whom were boarding at Hollywood-Burbank Airport (F.F. 61, A. 394). And although Continental Air Lines was granted new authority from the CAB to commence reg- ularly scheduled interstate service from Hollywood- Burbank Airport to Portland and Seattle, the Burbank curfew ordinance would prevent Continental from filling out its service pattern by the addition of a southbound after-dinner flight (F. F. 65-66, A. 395). (c) The Scope of Federal Regulation. The district court found that the federal statutes, regulations, and orders have completely occupied the field of the regula- tion of the use of navigable airspace and aircraft oper- ations (F.F. 58, A. 393). The trial court’s findings of fact reflecting the federal statutes and regulations gov- erning air carrier operations are in Findings 23-27; those with respect to certification of aircraft, airmen and airports are in Findings 28-33; those with respect to the framework of federal centralized management and control of navigable airspace are in Findings 34. 40; those covering federal control of all aspects of aircraft flight operations are in Findings 41-47; those relating to the exercise of centralized management and control directed to achieving the maximum efficient use of the navigable airspace, including flow control and high density traffic airport regulations, are in Findings 48-53; and those covering federal regulation of aircraft noise abatement are in Findings 54-57. Together, these Findings provide a comprehensive symmary of the pervasiveness of federal regulation of all aspects of 1 aireraft operations, use of the navigable airspace and aireraft noise abatement generally and at Hollywood- Burbank Airport. Each scheduled interstate air carrier that uses Hollywood-Burbank Airport holds a Certificate of Public Convenience and N ecessity issued by the Civil Aeronautics Board, which authorizes and obligates the carrier to engage in air transportation and to provide adequate service with respect to persons, property and mail over specified routes. (F. F. 24, A. 382; C. L. „ A. 404-05.) The Operations Specifications issued by the FAA to each carrier require these carriers to operate their turbojet aireraft within the navigable airspace in accordance with instrument flight rules (IFR) and specifically authorize the use of Hollywood-Burbank Airport (F.F. 27, A. 383). Every portion of the flight of a commercial jet aircraft takes place under the direct control of an FAA facility, from the filing of a flight plan, through the assignment of a runway and clearance to taxi thereto, the takeoff clearance, the assignment of a standard instrument de- parture procedure (PX 7, A. 452-53) and a radio beam intersection to which to fly, to the assignment of a standard instrument approach procedure (PX 7) and clearance to approach for landing on an assigned run- way. (F. F. 41-47, A. 386-89.) (d) The Efficient Use of Airspace. In exercising cen- tralized management and control over the navigable airspace of the United States, the FAA has as one of its statutory goals the efficient use of this airspace, which includes the expeditious movement of aircraft. A “Yariety of techniques are used by the FAA to insure ient use of the presently congested airspace, includ- an, , yee ing the utilization of centralized flow control procedures and high density airport rules which are discussed, res- pectively, in Findings 51-52 and 53-54 (A. 390-92). (F. F. 49-50, A. 390.) As an aspect of effective airspace management, Lock- heed is subject to federal regulation, as owner and pro- prietor of the Hollywood-Burbank Airport. The Federal Aviation Act of 1958 prohibits the establishment or con- struction of civil airports not receiving federal funds, such as Hollywood-Burbank, or even the substantial alteration of a runway layout, without prior compliance with regulations prescribed by the Administrator. 49 U.S. C. § 1350. This requirement was established “in order to assure conformity to plans and policies for, and allocation of, airspace by the Administrator... .” Id. The FAA also directly regulates Lockheed, and all other airports serving air carriers certificated by the CAB, through the terms, conditions and limitations of the airport operating certificate issued by the Admini trator (F.F. 33, A. 384). An airport cannot be operated without such a certificate. 49 U.S.C. 5 1430 (a) (8), 1432. Prior to commencement of jet operations at Hollywood- Burbank Airport, the FAA determined under 49 U.S. C. §§ 1426, 1301(8), (22) that takeoffs and landings of jet aircraft on each runway would not be unsafe to persons and property on the ground or in the air (F. F. 19, A 381). In addition, essential parts of the airport, includ- ing costly navigation aids and the Airport Traffic Con trol Tower and Radar Approach and Departure Control, are actually operated and maintai ed by the FAA itself pursuant to license agreement with Lockheed. (F.F. 36- 37, A. 385; PX 5, 6, A. 440-52.) (e) Noise Abatement Regulations. Actions taken by the FAA to achieve noise abatement at airports gener- ip i ally are summarized in Findings 54, 55 and 57 (A. 392- 93). Such actions include regulations prescribing mini- mum altitude during descent for landing and climb rates after takeoff, as well as standard instrument departures to reduce noise over residential areas between 11:00 p.m. and 7:00 a.m. Prior to the enactment of the Burbank curfew ordi- nance, the FAA took in hand the subject of nighttime takeoffs at Hollywood-Burbank Airport and acted to minimize the consequences of those operations by issuing the noise abatement order summarized in Finding 56 (A. 392). This order, which was issued by the FAA Chief of the Burbank Air Traffic Control Tower, establishes a preferential runway for departures of jet aircraft between the hours of 11:00 p.m. and 7:00 a.m. In issuing this order the responsible federal official announced his determination that the noise abatement procedures which it established were “designed to reduce community exposure to noise to the lowest practicable minimum” (PX 30, A. 454). The trial court found that pursuant to this order, “the preferential runway is assigned by the FAA control tower [between 11:00 p.m. and 7:00 a.m.] by incorpor- ation into an aircraft’s departure ‘clearance’ as an instruction to the pilot” (F. F. 56, A. 393). Any person Violating an air traffic control clearance or instruction is subject to a civil penalty and to suspension or revocation of his airman’s certificate. 49 U.S.C. §$§ 1429, 1430(a) (5), 1471; 14 C. F. R. § 91.75. The testimony showed that the preferential runway established by the order was ed except for a “few occasions” when the control tower Permitted deviation because of unusual weather or oper- conditions affecting safety (A. 318, 322-23). —14— The FAA also employs its noise abatement authority in the field of aircraft design and performance. On November 18, 1969 regulations were adopted prescribing noise standards which must be met as a condition of type certification for new subsonic turbojet aircraft. 34 Fed. Reg. 18355, now published at 14 C. F. R. Part 36. Airplanes of older type design produced after July 1, 1973 would be required to comply with these “Part 36” noise standards under an FAA Notice of Proposed Rule- making issued July 7, 1972. 37 Fed. Reg. 14814, And on October 30, 1970, the Administrator issued an Advance Notice of Proposed Rulemaking concerning “civil air- plane noise reduction retrofit requirements.” 35 Fed. Reg. 16980. (f) Effect on Commerce. The district judge found that air commerce, by reason of its speed and volume, requires regulation by a single authority if it is to be conducted with maximum safety and so as to achieve efficient use of the navigable airspace (F. F. 59, A. 394; C.L. 21, A. 406). The evidence was uncontradicted that air transportation problems are not amenable to solution by local regulation (A. 368). The district judge also found, upon the basis of un- contradicted testimony, that if the curfew ordinance were upheld, similar ordinances would be adopted by virtually all cities surrounding airports (F. F. 69, A. 396). Such a proliferation would adversely affect the aviation industry, the members of the traveling public, and the national economy (F. F. 70, A. 396). The impact of such an ordinance on airline scheduling extends well beyond the period of any particular curfew and beyond the boundaries of the regulated airport. The Burbank ordinance alone restricts the period that Conti- nental may originate departures from Seattle to twelve 3 hours of the day. (F. F. 66, A. 395.) And if curfews were adopted nationwide, departures between widely sepa- rated cities would be limited to less than one-third of the hours of the day (F. F. 68, A. 396). The testimony showed that each day, some 1,009 sched- uled domestic interstate departures occur throughout the United States between 11:00 p.m. and 7:00 a.m., and all these flights would have to be cancelled if a curfew were imposed on a nationwide basis (F. F. 74, A. 397). Continental Air Lines alone would have to cancel over 48 flights per day, and its operating costs would be in- creased by approximately 25 percent (F. F. 71-72, A. 397). Other carriers would be similarly affected (F.F. 73, A. 397). Over 48 percent of the nation’s air mail is carried dur- ing curfew hours. Nationwide imposition of a curfew would annually delay billions of pieces of mail at least one day in delivery. (F. F. 79, A. 399.) In addition, the air freight industry, which exists upon its ability to operate during curfew hours, would be required to cancel approximately 42 percent of the all-cargo services (F.F. 80-81, A. 399-400). The testimony also showed that the imposition of cur- few ordinances would cause a bunching of flights in the hours immediately preceding the curfew. This would have the twofold effect of increasing an already serious congestion problem and of actually increasing, not re- lieving, the noise problem by increasing flights in the period of greatest annoyance to surrounding communi- ties. The district court found that this “result is totally “inconsistent with the objectives of the federal statutory and regulatory scheme.” (F. F. 78, A. 399.) Thus, based upon uncontradicted evidence, the district eourt found that the imposition of curfew ordinances on „ a nationwide basis would (1) drastically restrict the hours available for flight scheduling far beyond the cur- few period, (2) severely impair the efficiency of the aircraft maintenance system, (3) require extensive re- scheduling at enormous inconvenience and expense, (4) ; deteriorate air transportation service to the public, (5) increase the already serious congestion problem, and - (6) intensify the noise problem in the hours immediately preceding the curfew. (F. F. 67-68, 70-82, A. 396-400.) 3. Decision of the District Court. The district court held that the federal government has preempted the field of regulations governing and con- trolling the use of airspace and air traffic. From its analy- sis of the federal statutes and regulations, the court concluded that “Congress intended to centralize full and dominant control of the navigable air space in the Federal Government so as to provide for its safe and most efficient use” (A. 361). The court also held that local curfew legislation “would conflict with the certificated rights and obligations” of the air carriers (A. 367-68). The district court also ruled that the Burbank ordi- nance would violate the Commerce Clause in two respects. First, based upon its holding that the effect of the ordi- nance is to be considered on a “national basis,” the court held that the ordinance cannot stand because there would be a “very serious loss of efficiency as to the use of air space” and the carriage of interstate passengers and goods would be “seriously interrupted” (A. 367): Becond, , the trial court held that “air commerce, by reason of its speed and volume, requires a single authority in control if it is to be conducted at maximum safety and efficient use of the navigable air space“ (A. 368). W ee 4 Decision of the Court of Appeals. On March 22, 1972 the Ninth Circuit held the Burbank curfew ordinance invalid under the Supremacy Clause, finding it unnecessary to reach the Commerce Clause issues. With respect to preemption, the court of appeals found that the Federal Aviation Act of 1958, as amended, 49 U.S.C. $§ 1301-1542, created a comprehensive scheme to deal with air commerce at the federal level and that the overall design of Congress was to centralize in a single authority the power to promulgate rules and regulations for the use of the nation’s airspace. The court found that Congress, in amending the Act in 1968, 49 U.S.C. § 1431, confirmed federal preemption of the field of aircraft noise regulation so as to exclude the exercise of State and local police power in this area. (A. 420-23.) The Ninth Circuit also held that the Burbank curfew ordinance conflicted with the federal scheme of aviation regulation when tested by the standards of Peres v. Campbell, 402 U.S. 637 ( 1971), because it “interferes with the balance set by the FAA among the interests with which it is empowered to deal. (A. 426). The circuit noted that at the time the Burbank ordinance was passed, the FAA had already issued and put into effect preferen- tial runway use procedures with respect to night opera- tions designed to reduce aircraft noise in the vicinity of the Hollywood-Burbank Airport to “the lowest practi- cable minimum.” The court held that the attempt by the City of Burbank to go beyond the noise abatement meas- ures adopted by the FAA “frustrates the full accomplish- ment of the goals of Congress.” (A. 426-27.) In addition, me court ruled that the effect of the curfew was to termi- nate the federal statutory right of free transit through 8 the navigable airspace (A. 426 n.12). Judge Browning limited his concurrence to the conflict portion of the opinion. SUMMARY OF ARGUMENT Introduction The context for the basic issue before the Court — whether a city can exercise its police power to impose a curfew on commercial jet flights — is the rapidly in- creasing dependence of our nation on its air transporta- tion system. In the last two decades, the number of air rs and the amount of air cargo and air mail have increased at a phenomenal rate. Nighttime operations are crucial to the air transporta- tion system, the record here indicating that 48% of the air mail and 42% of air cargo is carried during curfew hours. More than 1,000 scheduled flights would have to be - eancelled every night if the Burbank curfew were applied nationally. The unique nature of air commerce, together with our nation’s dependence on it, is a theme which runs through | all of the legal arguments. Aircraft travelling at 600 miles an hour constitute a way of travel which quickly escapes the bounds of local regulative competence. The testimony at the trial showed that the approach to prob- lems of air transportation at the local level just does not work; it has to be done on a national basis because it is a national operation. Uncoordinated local attempts at regulation would produce confusion and chaos, and rather than solving the problem of aircraft noise would merely shift it to another community or another airport or an- other time period. ‘ 3 I. Preemption The comprehensive Federal Aviation Act of 1958, 49 U.S.C. § 1301, et seg., displays an unmistakable congres- sional intention to preempt the management of navigable airspace and regulation of aircraft flight operations. That Act, which establishes a public right of freedom of transit through the navigable airspace, directs the Fed- eral Aviation Administrator to adopt regulations “to insure the safety of aircraft and the efficient utilization of such airspace.” 49 U.S.C. §§ 1304, 1348 (a). The authori- tative Senate Report on the Act states that the Act was intended to vest “unquestionable authority for all aspects of airspace management in the Administrator of the new Agency [the FAA].” The 1968 amendment to the Act, 49 U.S.C. § 1431, made explicit the FAA’s responsibility with respect to the abatement of aircraft noise. It directed the Adminis- trator to prescribe regulations “for the control and abate- ment of aircraft noise and sonic boom.” This amendment carefully laid out the factors which the Administrator is to consider and balance in formulating noise abatement regulations. 49 U.S.C. §1431(b), supplementing 49 U.S.C. § 1303. The legislative history of the 1968 amendment states that it would “expand the federal government’s role in a field already preempted” and that “state and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft.” S. Rep. No. 1353, 90th Cong., 2d Sess. 6-7 (1968). While the legislative history states that airport " proprietors retain certain powers to exclude certain types of aircraft based upon noise considerations, this state- 45 ment is not relevant here because the City of Burbank is not the proprietor of Hollywood-Burbank Airport. ec WI ca The FAA has issued regulations of formidable pro- portions, impressive detail, and manifest sophistication. There are extensive regulations for noise abatement (in- cluding regulations covering the nighttime hours at Hollywood-Burbank Airport) as well as significant regu- lations for efficient use of the navigable airspace (includ- ing, for example, flow control procedures affecting aircraft on the ground at Hollywood-Burbank Airport). The Noise Control Act of 1972, Pub. L. No. 92-574, constitutes a further assertion by the federal government of its dominance in the field of the abatement of aircraft noise. Under the terms of the new Act, the expertise of the Environmental Protection Agency (EPA) will bolster the broad regulatory power of the FAA under existing law. The new statute calls for a study by the EPA which will consider, among other things, “the imposition of cur- fews on noisy airports.” 118 Cong. Rec. S 18644. The federal regulatory scheme meets all three tests for preemption laid down in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), and subsequent cases. First, viewed in sequence, the 1958 Act, the 1968 Amend- ment, and the 1972 Noise Control Act constitute a com- plete and pervasive occupation of the fields of airspace management and the regulation of aircraft operations . and aircraft noise. Second, the congressional statutes and regulations pertaining to management of the navigable airspace unquestionably touch a field in which the federal interest is dominant. Finally, it is clear that uncoordi- nated local regulation would produce a result inconsistent with the objective of federal law, which is to secure efficient as well as safe use of the navigable airspace. The Burbank curfew ordinance intrudes into this ex- clusive federal domain. It would deny jet aircraft access to the navigable airspace for fully one-third of each day. 3 As the district court concluded, the local imposition of curfews would cause a “very serious loss of efficiency” with the result that the statutory objective would be “compromised” (C.L. 16, A. 404). Moreover, curfews would increase the already serious congestion problem and also actually increase, not relieve, the noise problem by pushing more N into the periods of greatest annoyance. II. Conflict Apart from the preemption issue, there is a “conflict” between the Burbank ordinance and an FAA order. At the time the ordinance was enacted, federal officials had already taken the subject of nighttime flights in hand: aircraft operations at Hollywood-Burbank Airport were already subject to an FAA noise reduction order (BUR 7100.5B) which established a preferential runway system for departures between 11:00 p.m. and 7:00 am. The Burbank ordinance would make a nullity of the FAA order and would, as the court of appeals unanimously held, conflict and interfere with the balance set by the FAA among the interests with which it is empowered to deal. In addition, the curfew would interfere with the federally guaranteed right of free transit through the navigable airspace. The Supremacy Clause bars a local enactment which would so frustrate the full accomplish- ment of the goals of Congress. Perez v. Campbell, 402 U.S. 637, 649 (1971). III. Commerce Clause Even in the absence of the comprehensive federal legis- lation present here, the Commerce Clause protects the 3 national commerce from hostile actions of local govern- ments. One of the tests for the validity of a local law is whether it operates in an area where regulation should be prescribed by a single authority. Southern Pacific Co. v. Arizona, 325 U.S. 761, 768-69 (1945). As the district court found, airspace management and the regulation of aircraft operation is such an area (F.F. 59, A. 394). The volume of air commerce, the speed with which it is con- ducted, and the technical complexity of aircraft sched- uling, operations, and maintenance combine to establish a powerful need for centralized management. The Burbank ordinance is also defective under the other test laid down in Southern Pacific Co. v. Arizona, namely whether the local regulation impedes substan- tially the flow of commerce. 325 U.S. at 768-69. Under this test, a local regulation should not be viewed as an isolated phenomenon but rather the Court should con- sider the effect on commerce if similar regulations were enacted throughout the United States. There would be a “near catastrophic effect on the na- tional air transportation system” if the Burbank curfew were applied on a national basis (F.F. 70, A. 396). For example, the air cargo industry exists upon its ability to operate during curfew hours, and the required can- cellation of these all-cargo services would have a drastic impact upon the nation’s business community (F. F. 80-81, A. 399-400). And billions of pieces of mail annually would be delayed at least one day in delivery {F.F. 79, A. 399). These massive disruptions in the national air transport system clearly constitute an unreasonable bur- den on interstate commerce and impede substantially its free flow. . 8 5 ARGUMENT Introduction. The basic issue before the Court is whether a city ean exercise its police power to impose a curfew on jet flights into the navigable airspace from an airport which the city does not own or operate and from which regularly scheduled commercial operations are conducted. The nation’s dependence on commercial air transporta- tion has increased at a phenomenal rate in the last two decades. Passenger miles on certificated air carriers in the United States rose from 8,029 million miles in 1950, to 30,556 million miles in 1960, and to 104,155 million miles in 1970. Air cargo ton miles rose from 226 million in 1950, to 611 million in 1960, and to 2,295 million in 1970. Air mail ton miles in the United States grew from 47 million in 1950, to 136 million in 1960, and to 714 million in 1970.“ Nighttime operations are crucial to the air transporta- tion system upon which the nation so heavily relies. The record here shows that 48% of the air mail** and 42% of air cargo is carried during curfew hours (F.F. 79-80, A. 399-400). If the Burbank curfew should spread to the entire system (and the district judge found that it would if upheld here, F.F. 69, A. 396), more than 1,000 flights would have to be cancelled every night (F.F. 74, A. 397- 98). It was not hyperbole for the district court to find that a national curfew on the Burbank model would have * Civil Aeronautics Board Handbook of Airline Statistics, Tables 15, 27 and 40 (1971). 3 licy of the United States as established by te 197 wert Bert penne Boe Thy that the achievement of “ re 3 letter me mel to all of the nation that 5 a primary oe, of postal U.S. C. § 101(£). one,” One a “near catastrophic effect on the national air transporta- tion system” (F. F. 70, A. 396). The unique nature of air commerce, together with our nation’s dependence on it, is a theme which runs through all of the legal arguments, as this Court early perceived, air commerce legally and literally “soared into a differ- ent realm than any that had gone before.” Chicago d Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 107 (1948). “A way of travel which quickly escapes the bounds of local regulative competence called for a more penetrating, uniform and exclusive regulation by the nation than had been thought appropriate for the more easily controlled commerce of the past.” Id. at 107. The special character of air transportation pervaded the testimony at the trial. The testimony showed that during a single 24-hour period, a typical commercial air- craft, travelling at 600 m. p.h., will make stops in 10 different states and overfly perhaps another 10 states (A. 258). The former director of the United States Army Aviation, Clifton F. von Kann, testified that “air- craft have such a range and speed and they involve such technical complexity that they have to be managed on a centralized basis” (A. 258). James T. Pyle, former ad- ministrator of the Civil Aeronautics Administration, testified : “The approach to the solution of problems in air transportation at the local level just does not work. It has to be done on a national basis because it is a national operation.” (A. 295.) Given the nature of air commerce, “there would be utter chaos,” testified Mr. Pyle, if there were a prolifer- ation of ordinances enacted by intersecting and over- lapping local jurisdictions, all addressing themselves to the same basic problem in air transportation (A. 296). 3 The major airports of the nation are so located that, if Burbank’s ordinance were upheld, many of them would be subject to having their flight operations restricted by the police power of at least two and sometimes several local jurisdictions. And inevitably, uncoordinated local attempts at regulation do not solve the aircraft noise problem but merely shift it to another community or to another airport or another time period. (A. 292-93.) In the pages which follow, we will show that Burbank’s purported exercise of police power over air commerce is invalid because it invades a field which has been pre- empted by the federal government, because it conflicts with federal orders and statutes, and because it runs afoul of the Commerce Clause. I THE FEDERAL GOVERNMENT HAS PRE. EMPTED THE MANAGEMENT OF AIRSPACE AND THE REGULATION OF AIRCRAFT OPER- ATIONS AND AIRCRAFT NOISE. In 1958 Congress enacted the comprehensive Federal Aviation Act, providing for the management of the navi- gable airspace and regulation of aircraft operations. The 1958 Act also contained a general provision which pro- vided authority for the issuance of noise abatement regu- lations by the Federal Aviation Administration. 49 U.S.C. § 1348(c). In 1968 Congress enacted a specific sec- tion (now § 611) for “the control and abatement of air- craft noise and sonic boom.” 49 U.S.C. § 1431(a). This _ Specific federal authority for aircraft noise abatement was elaborated and confirmed by the Noise Control Act of 1972, Pub. L. No. 92-574 (Oct. 27, 1972). 1 In this section, we will first review these three crucial enactments and the pertinent regulations, and then dis- cuss the legal effect of the pervasive statutory and reg- ulatory scheme. A. The Federal Aviation Act of 1958. The cornerstone of the statutory scheme involved here is the Federal Aviation Act of 1958, 49 U.S.C. § 1301, et seq. (the “Act” or the “1958 Act”). The United States is declared “to possess and exercise complete and ex- clusive national sovereignty in the airspace of the United States,” 49 U.S.C. § 1508(a). The Act also declares that “there is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States,” 49 U.S.C. § 1304. The Act authorizes and directs the Federal Aviation Administrator (the Administrator“): “[T]o 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 utiliea- tion of such airspace.”* 49 U.S. C. § 1348(a). The above-quoted section is the “heart” of the Act. S. Rur. No. 1811, 85th Cong., 2d Sess. 14-15 (1958) (here- after S. Rur. No. 1811”). This key section of the Act stresses the dual purpose of federal regulation of the use of navigable airspace: “e (1) “to insure the safety of aircraft;” and „ Unless otherwise noted, emphasis is added throughout. ee eee, (2) to insure “the efficient utilization of such air- space.” The legislative history of the Act illuminates the pur- pose of Congress to “vest in a single Administrator ' plenary authority for airspace management.” S. Rep. No. 1811, at 15. The Senate Report pointed out that responsi- bility for air traffic control planning “has until quite recently been scattered among a plethora of interagency committees and boards instead of being concentrated in one overall authority.” The Report indicated that “this situation has been made almost inevitable by the lack of any clear provision in present law for unified control of our national airspace.” Id. at 13. Previous efforts to achieve airspace allocation or uni- fied control rested, said the Report, “upon the shifting sands of legal ambiguity.” Id. at 14. The 1958 Act was intended to end the uncertainty: “The present legislation proposes to clear away this ambiguity once and for all by vesting unques- tionable authority for all aspects of airspace man- agement in the Administrator of the new Agency.” S. Rep. No. 1811, at 14. The comprehensive character of the 1958 Act itself leaves little doubt that Congress intended to provide the Administrator with the tools necessary to exercise his “plenary” authority. For example, the Administrator is authorized to develop plans and formulate policy with respect to the use of navigable airspace and allot the use of such airspace as he deems proper, 49 U.S.C. § 1348(a); prescribe rules governing the flight of aircraft, 49 U.S.C. § 1348(c); promote air commerce by establish- ing and maintaining air navigation facilities, 49 U.S.C. _ §§ 1303(d), 1348(b); prescribe certain types of equip- 1 ment airplanes must utilize, 49 U.S.C. 5 1423 (a) (1); issue airworthiness certificates to aircraft which are in a condition for safe operation, 49 U.S.C. § 1423(c); issue air carrier operating certificates specifying the federal airways over which each carrier is authorized to operate, 49 U.S. C. § 1424(b); and issue airman certificates speci- fying the capacities in which the holders are authorized to serve, 49 U.S.C. § 1422(a). In exercising his powers, the Administrator is directed to consider the following factors as being in the “public interest” : “(a) The regulation of air commerce in such man- ner as to best promote its development and safety and fulfill the requirements of national defense; “(b) The promotion, encouragement, and develop- ment of civil aeronautics; “(¢) The control of the use of the navigable air- space 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; “(d) The consolidation of research and develop- ment with respect to air navigation facilities, as well as the installation and operation thereof; “(e) The development and operation of a common system of air traffic control and navigation for both military and civil aircraft.” 49 U.S.C. § 1303. Under section 1348(c) of 49 U.S. C., the Administrator is authorized and directed “to prescribe air traffic rules and regulations . for the protection of persons and property on the ground.” Prior to the 1968 enactment of an explicit noise abatement section (§ 611), the Admin- istrator prescribed FAA noise abatement pursuant to the authority and direction conferred by this section. See, 1 2%, 25 Fed. Reg. 1764, 1767 (1960); 26 Fed. Reg. 9069, 9071 (1961). Federal dominance in the fields of airspace manage- ment and air traffic control is not diminished by the “sav- ing clause” in section 1506 of 49 U.S. C., which is relied upon by Burbank (Br. p. 35) and by the State as amicus (Br. p. 17). In “saving” the “remedies now existing at common law or by statute,” this “boilerplate” provision preserves tort law remedies such as the right of individ- uals to commence wrongful death actions. See, e. g., Fite- gerald v. Pan American World Airways, Inc., 229 F. 2d 499, 502 (2d Cir. 1956) ; Porter v. Southeastern Aviation, Inc., 191 F. Supp. 42 (M.D. Tenn. 1961). But the preser- vation of these preexisting tort law remedies cannot be thought to provide any support for an ordinance such as Burbank’s which infringes on an area where federal pre- emption is, as the court of appeals said in this connection, “unavoidable.” (A. 424). Saving clauses of this type have long been held to preserve only those remedies not inconsistent with the purpose of the enactment. See Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U.S. 121, 129-30 (1915); Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907). B. The 1968 Noise Abatement Amendment. In 1968, following hearings in both houses, Congress focused specific attention on the problem of aircraft noise. This effort resulted in the adoption of a new sec- tion of the Federal Aviation Act (§ 611) which directed the Administrator to prescribe rules and regulations for the control and abatement of aircraft noise and sonic boom, as follows: he 4 mMn order to afford present and future relief and protection to the public from unnecessary aircraft = a noise and sonic boom, the Administrator of the Fed- eral Aviation Administration, after consultation with the Secretary of Transportation, shall prescribe and amend standards for the measurement of air- craft noise and sonic boom and shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom, including the appli- cation of such standards, rules, and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this subchapter.” 49 U.S.C. § 1431 (a). Supplementing 49 U.S.C. & 1303 (quoted above, p. 28), the 1968 amendment carefully laid out the additional factors to be considered by the Administrator in pre- scribing such noise abatement regulations: “In prescribing and amending standards, rules, and regulations under this section, the Administrator shall — “(1) consider relevant available data relating to aircraft noise and sonic boom, including the results of research, development, testing, and eval- uation activities conducted pursuant to this chap-. ter and chapter 23 of this title; “(2) consult with such Federal, State, and inter- state agencies as he deems appropriate; “(3) consider whether any proposed standard, rule, or regulation is consistent with the highest degree of safety in air commerce or air trahsporta- tion in the public interest; “(4) consider whether any proposed standard, rule, or regulation is economically reasonable, 8. 1 8 technologically practicable, and appropriate for the particular type of aircraft, aircraft engine, appliance, or certificate to which it will apply ; and “(5) consider the extent to which such standard, rule, or regulation will contribute to carrying out the purposes of this section.“ 49 U.S.C. & 1431 (b). Thus, in formulating noise abatement regulations, the FAA is obligated under’49 U.S.C. 5 1303 and 1431 (b) to balance the need for environmental protection with con- siderations of safety, efficiency, common defense and available technology. As the court of appeals held, the statutory scheme vested in the FAA the responsibility to “resolve the proper balance among the multiple pur- poses” (A. 419). The legislative history of the 1968 amendment supports the conclusion that the federal government has preempted the power of local government to deal with aircraft noise by controlling the flight of aircraft. The authoritative Report of the Senate Commerce Committee states: “In this regard, we concur in the following views set forth by the Secretary [of Transportation] in his letter to the committee of June 22, 1968: ‘The courts have held that the Federal Govern- ment presently preempts the field of noise regula- tion insofar as it involves controlling the flight of aircraft. Local noise control legislation limiting the permissible noise level of all overflying aircraft has recently been struck down because it con- flicted with Federal regulation of air traffic. Amer- ican Airlines v. Town of Hempstead, 272 F.Supp. 226 (U. S. D. C., E. D., N.Y. 1966). The court said, at 231, “The legislation operates in an area committed to Federal care, and noise limiting rules operating 8 as do those of the ordinance must come from a Federal source.” H.R. 3400 would merely expand the Federal Government’s role in a field already preempted. It would not change this preemption. State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft.’” S. Rur. No. 1353, 90th Cong., 2d Sess., July 1, 1968, 2 U.S. Conn Cons. & Ap. News 2693-94 (1968). Burbank (Br. p. 48) purports to find comfort in the following portion of the Senate Committee Report re- lating to the powers of an airport “proprietor” (the entity owning and operating the airport): “However, the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to air- craft on the basis of noise considerations so long as such exclusion is nondiscriminatory.” Id. at 2694. In discussing the powers of the airport proprietor, the mmittee Report states that “just as an airport owner is responsible for determining how long the runways will 2, 80 is the owner responsible for obtaining noise ease- m rents necessary to permit the landing and takeoff of the aire ” Id. at 2694, This language is drawn from iggs.v. Allegheny County, 369 U.S. 84, 89 (1962), where ne Court held that the airport proprietor has to pay the pil eee eee ane: of a land- 3 The difficulty with Burbank's argument based upon the 1968 Committee Report is that the appellant City of Bur- bank is not the proprietor of Hollywood-Burbank Air- port. The proprietor of this airport is the appellee Lockheed Air Terminal. Accordingly, the court of ap- peals correctly rejected Burbank’s argument: “The City of Burbank has no proprietorship in- terest in H-B Airport: It is making an effort to exert its police power in the field of noise regulation, which the Secretary states, and the Committee agrees, has been preempted by the Federal Government. The Supremacy Clause, U.S. Const. art. VI, cl. 2, in- validates that effort.” (A. 423.) Although not involved in this case, it should be noted that the ultimate scope of proprietary power is an un- resolved issue involving difficult constitutional, statutory, and contractual issues. See Opinion of the Justices, __ Mass. , 271 N.E.2d 354, 358-59 (1971). For example, under the Supremacy Clause, an airport operator would be barred from imposing a restriction on flight operations which would stand “as an obstacle to accomplishment and execution of the full purposes and objectives of Con- gress.” Peres v. Campbell, 402 U.S. 637 (1971). Airport restrictions on air commerce could also be vulnerable to attack under the Commerce Clause or under grant agree- ments between the proprietor and the federal government. But the proprietary powers, whatever they may be, are held by Lockheed, not by the City of Burbank. O. The Scheme of Federal Regulation. Pursuant to his broad statutory authority, the Admin- istrator of the FAA has issued complex and detailed operational rules and regulations which control the flight 5 ol aircraft and govern the use of the navigable airspace 8 (14 C.F.R. Parts 71-77, 91-97). The highlights of these regulations, as applicable in this case, are described in Findings 34, 35 and 38-47 (A. 385-89). Reference to these regulations will confirm the correctness of the appraisal made by Judge Dooling in American Airlines, Inc. v. Town of Hempstead: “The powers granted by the Congress are not dormant but actively exercised. The regulations of the Administrator are of formidable proportions, impressive detail and manifest sophistication.” 272 F. Supp. 226, 232 (E. D. N. V. 1967), af d, 398 F.2d 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969). 1. Regulations for Noise Abatement. The Administrator has promulgated extensive regulations to carry out his responsibilities in the field of noise abatement. See 14 C. F. R. § 91.87. These regulations have been promulgated under the 1958 Act’s directive to prescribe air traffic regulations “for the protection of persons and property on the ground,” 49 U.S.C. § 1348 (e), and pursuant to the authority conferred by the 1968 amendment to “provide for the control and abatement of aircraft noise,” 49 U.S.C. § 1431. The noise abatement regulations of the Administrator embrace a wide range of flight techniques. For example, in the interest of alleviating noise disturbances to the residents of communities adjoining airports in metro- politan areas such at Hollywood-Burbank, the Adminis- trator has established regulations that require jet air- craft to maintain an altitude of 1500 feet until further descent is required for a safe landing and, when taking off, to climb to 1500 feet as rapidly as practicable F. F. 55, A. 392). The Administrator has also prescribed 4 variety of noise abatement runway use ‘procedures to 1 avert aircraft from residential areas (A. 200-01, 308-09).* And where possible, the FAA has developed standard instrument departure procedures which are assigned be- tween the hours of 11:00 p.m. and 7:00 a.m. in order to reduce noise over populated areas. Such standard de- partures are presently in effect at Los Angeles Inter- national Airport. (F.F. 57, A. 393.) The FAA is also employing its noise abatement author- ity in the field of aircraft design and performance. On November 18, 1969, the Administrator adopted regula- tions prescribing noise standards which must be met as a condition to type certification for all new subsonic turbojet-powered aircraft. 34 Fed. Reg. 18355, now pub- lished at 14 C.F.R. Part 36. Under the “acoustical change” provision of these regulations, no currently certi- ficated jet aircraft that exceeds the noise limits specified for new type designs may be modified to increase its noise over that of the parent airplane. On July 7, 1972, the Administrator issued a Notice of Proposed Rule- making that would require airplanes of older type design produced after July 1, 1973 to comply with these Part 36 noise standards. In issuing this notice, the Adminis- trator announced his determination that further aggrava- tion of the aircraft noise problem involved in the con- tinued production of older aircraft types “conflicts with the longstanding policy of the FAA” and “counteracts the acoustic benefit available from the introduction of new technology aircraft.” The Administrator pronounced this situation “unacceptable from an environmental man- agement standpoint.” 37 Fed. Reg. 14814. the noise abatement order le at Hollywood- - Burbank was described in the Statement at page 13, 3 BSS eee and will be discussed in the “conflict” section of a pages 65-67, infra. 3 2. Regulation for Efficient Use of Navigable Airspace. Especially pertinent to this case are the regulations adopted by the FAA in pursuit of the statutory goal of “efficient utilization” of airspace. 49 U.S.C. § 1348(a). The importance of this goal is heightened by the con- gestion of the navigable airspace in the vicinity of major air terminals, which at times results in FAA controllers “making use of all available airspace” in the Los Angeles area (A. 193). This condition exists in part because the services required by travelers and shippers frequently exceed the capacity of the nation’s airport system (F. F. 48, A. 390). Congress recognized the emergence of this problem as early as 1958 when it referred to the national airspace as “a diminishing resource.” S. Rep. No. 1811, at 13. One set of regulations to insure efficient use of navi- gable airspace involves centralized “flow control” pro- cedures. Flow control is a means of metering aircraft to meet any given traffic situation. By means of flow con- trol restrictions, the FAA regulates the number of air- craft that will be accepted in an area and restricts alti- tudes or routes that may be flown for specified periods of time. Thus, an FAA Air Route Traffic Control Center receiving a flow control restriction becomes obligated to (a) clear aircraft on specified routes; (b) establish sepa- ration in time, altitude or distance; or (c) limit the num- ber of departures in a given period by holding aircraft on the ground. This situation can and does result in the Los Angeles Center holding aircraft on the ground at Hollywood-Burbank Airport. (F.F. 48-52, A. 390.91.) The FAA has also promulgated high density traffic airport rales which work in conjunction with flow control procedures to provide relief at certain major airport terminals in the United States. 14 CF. R. § 93.121-131.