Amicus Curiae Brief — Burbank v. Lockheed Air Terminal, Inc.

Supreme Court brief1973

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SUBJECT INDEX

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TABLE OF AUTHORITIES

DTIC UM WCW bce tec er cece seers esc eecees i

EEE vi

ES a ix

Federal Aviation Regulations .................. x

Civil Aeronautics Board Regulations. ............. xii

Ss eek icd sche Sewoccccees xii

Swe eveehnoseacesees xii

PRELIMINARY-STATEMENT ............---+55- ]

RIT SEED AAMMICUS 0.0 cee eee 4

SUMMARY OF ARGUMENT .

eeeeemnom Argument ......... 20sec cccees 11

I. Burden on Interstate Commerce Argument....... 13

ARGUMENT

I. Congress Has Preempted the Field of All Navi-

gable Airspace, Including Regulation of Noise In

TN , BRE EEPI FORE CER ERT Ee 15

A. Tests for Preemption Drawn from the Case

NG Gia Rar tcc ss ebieeb wed ess sees 16

B. Discussion of Tests for Preemption .......... 20

(1) Congress has clearly expressed the inten-

tion to occupy the field of regulation of

a arr 20

Vi Peo er ie Act... ew 24

b. Legislative History of the Act......... 28

c. Court Action Concerning Federal Pre-

“ee eevee eeee eee

(3) Discussion of implied preemption of regu-

lation of navigable airspace ............

(ii)

a. Congress intended to occupy the field of ‘

regulation of aircraft noise........... 4

1, Discussion of the 1968 Noise Act .... 4

2. Consideration of the 1972 Act ...... 52

(a) The Preemption Section of the

PPE UE ci a obo sin Wi makaie vo & 53

(b) Other Aspects of the Legislative

History of the 1972 Act ....... 54

b. Pervasiveness of Federal regulatory

CINE 5 65h eka WANs CARO ERR 56

1. FAA Has Enacted Regulations in the

Area of Noise Control ........... 58

2. FAA Has Enacted a Comprehensive

Set of Safety Rules That Pervade the

MO iar ha usar h tac eee ns 59

3. The CAB Has Enacted Extensive

Rules Regulating Commercial Air

RUE sels ak bs Waban Svea Ss 62

c. The Subject of Aircraft Noise Is Heavily

Involved With Aircraft Safety, And

Therefore Demands An Exclusivity of

Federal Regulation in Order to Achieve

Uniformity Vital to the National Interest . 62

d. The Burbank Ordinance Stands as an

Obstacle to the Accomplishment and

Execution of the Full Purposes and

Objectives of Congress ............. 64

II. The Ordinance of the City of Burbank and Similar

Curfews Curtailing Operations of Airports Consti-

tute a Regulation of Interstate Commerce That Is

Neither Indirect Nor of Incidental Burden Thereon .~. 65

a ;

(iii)

) A. The Air Transport Industry ...........-+--

el @ BDusinew Aviation ..................5.

C. Pacific-Southwest Airlines Is Operating In Inter-

Ee ea ee ee

D. Operations at the Hollywood-Burbank Airport. . .

> B. Effect of Burbank Curfew ........ bah wide s

F, Effect of Implementation of Similar Curfews at

: Other Airports, Nationwide .......... wher

G. The District Court’s Findings ........ 4EVER

HH. The Case Law Tests ......... bea cas é

GONCLUSION ..............-5., end RE

Exhibit 1, Affidavit of Lawrence P. Bedore, Manager,

~ Aiport Services, NBAA ..... 2-6 essere eeeee

: - Bxhibit 2, Letter of Consent to NBAA to Participate as

Amicus, Appellants ...... 6.6.6... eee eee renee

- Exhibit 3, Letter of Consent to NBAA to Participate as

(iv)

TABLE OF AUTHORITIES

ALPA v. Quesada, 276 F.2d 892 (2 Cir. 1960)

Allegheny Airlines, Inc. v. Village of Cedarhurst, 238

F.2d 812 (2 Cir. 1956)

Allen-Bradley Local v. Wisconsin Employment Board,

315 U.S. 740, 62 S.Ct. 820 (1942)

American Airlines, Inc. v. City of Audubon Park, 297

F. Supp. 207 (W.D. Ky. 1968), aff'd per curiam,

407 F.2d 306 (6 Cir.), cert. denied, 396 U.S. 845

Nineties Aittaes, ti: v. Town of Heinpibied: 398

F.2d 369 (2 Cir. 1968), cert. denied, 393 US.

- 1017.(1969)

AOPA v. Port Authority of N.Y., 305 F. Supp. 93

Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280,

34 S.Ct. 829 (1914)

Baldwin v. G.A.F. Seelig, Inc., 249 U.S. 511, 55 S.Ct.

497 (1935)

Barrett v. N.Y., 232 U.S. 14, 34 S.Ct. 203 (1914)

Bethlehem Steel Co. v. N.Y. State Labor Relations

Board, 330 U.S. 767, 67 S.Ct. 1026 (1947)

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79

S.Ct. 962 (1959) '

Braniff Airways v. Nebraska State Board, 374 U.S.

$90, 74 S.Ct. 757 (1954)

California v. Zook, 336 U.S. 725, 69 S.Ct. 841

ge eS 16, 19

327 USS. 92, 66 S.Ct. 438 (1946) ........ 18

Hays Freight Lines, Inc., 348 U.S. 61, 75

I 6 6 on oo es ores ce nes 18, 19, 39

&W. C. R. Co. v. Varnville Co., 237 US.

ME CIIS) wo os we sees 17, 40, 59

& QR. Co. v. Illinois; 200 U.S. 561, 26

(1905) OT eS pea. 77

Southern Air Lines, Inc. v. Waterman S.S.

333 U.S. 103, 68 S.Ct. 431 (1948) ........... 56

Butter Co. v. Patterson, 315 U.S. 148, 62

SSS noe neni 18, 19, 67

of Public Works, 60 F.2d 638 (D.C

» Inc. v. Janas, 202 F.2d 914 (2 Cir.

(SSR FS RRS a Rada a a er 36

ti-Discrimination Commission v. Con-

Airlines, Inc., 372 U.S. 714, 83 S.Ct. 1022

| CU SSSSS SS ASS Soccer 18, 19

bard of Wardens, 53 U.S. 298 (1851) ......... 20

iv. Nevada, 6 Wall. 35, 18 L.Ed. 745 (1868) ...... 23

n Kos > or A of Mass., Inc. v.

eh 176 F. Supp. 466 (D.C. Mass. 1959) ........ 78

California 314 U.S. 160, 62 S.Ct. 164

a ie baa bg ok 0.8 0k b> 0 pW bia 0-8 66

v. Purdy, 185 U.S. 148, 22 S.Ct. 605

areas oe a Sd Sc a ech es. Kha ke 77

e & Avocado Growers, Inc. v. Paul, 373

S.Ct. 1210 (1963) ...... 16, 18, 19, 20, 40, 73

22 U.S. (9 Wheat.) 1 (1824) ..... 18, 20, 73

(vi)

Gonzales v. Porto Rico, $1 F.2d 61 (1 Cir. 1931) i

Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct.

MOREE SESE SS a ae 463

men ee 9 ek oe

ca BREE PERE CU POS PERI ae |

Head v. Board of Examiners, 374 U.S. 424, 83 S.Ct. fe

vibes ch dite gn, SERS PE 17, 19,2

Hennington v. Georgia, 163 U.S. 299, 16 S.Ct. 1086

ng eS OUND og De ead eee ee 75, 76, 77, 78,9

Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373 (1945) ....... 1

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399

UO ie ee ee ee ee Oe PE oes passin

Wn Se

Huron Portland Cement Co. v. Detroit, 562 US. 440,

Pm mmn CIN ee poxn

In re Vetetan’s Air Express Co., 76 F. Supp. 684(D. ._

We AE rts ste ee oe RS 17,4

TUAW v. O’Brien, 339 U.S. 454, 70 S.Ct. 781 (1950) ......

Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87 (1937) . 18,20,0

Kessler v. Dept. of Public Safety, 369 U.S. 153, 82

WT Odi Bis oo a om oc ec cae 5)

Lakeshore & M.S. R. Co. v. Ohio, 173 U.S. 285, 19

WIPE res fee. ein coc ecuate 14

Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct.

ae RD Ea Sek a aE SS NEO 20,2

Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 291900)... vate 1

Louisville and Nashville R. Co. v. Kentucky, 183 US.

POPE eR CIIUE) oo. aie eck pnis onc age ere 14

Mack v. Eastern Airlines, Inc., 87 F. Supp. 113 (D.C.

pe hectic? See FEE CLOT res %

: iW, Atlantic Coastline R. Co., 272 U.S. 605, 47

Ct, pa (1926) es Ap Wi aioe teas os 8 17, 19, 40, 57

York N.H. R. Co. v. New York, 165 U.S. 628,

esr e cat bs sy foes so 77

hen. States Power Co. v. Minnesota, 447 F.2d

Ee re re 16, 19, 57, 72

Inc. v. Lakewood, ___N.J. Super.__,

Aaa. (1972), 12 Avi. L. Rep. 17,623 ........ 72

v. Nelson, 350 U.S. 497, 76 S.Ct. 477

gaa A a hk baa cb Roe wk 4:9 B08 Se 17,19

nia R. Co. v. PSC, 250 U.S. 566, 40 S.Ct

ae ee 17,19, 40

. Campbell, 402 U.S. 637, 91 S.Ct. 1704

EG ae Ceo SA oid hs uw 9 0b hk v0 17, 18, 38, 39

Minnesota, 177 US. 164, 20 S.Ct. 666 (1900) ...... 77

Authority of New York v. Eastern Airlines, Inc.,

F. Supp. 745 (D.C. E.D. N.Y. 1966) ............ 35

(viii)

Prigg v. Somalis 26, Be 599, 10. L.Ed. 1060

GUN os ating ee nes een Fowhics oi. 17,40

Rice v. Board of Trade, 331 US. 247, 67 S.Ct. 1160

CIDE) orci ki wks bi ee MS

Rice v. ficila Po Bowie Carp. 331 US. 218, 67

GEE AIAG OO 5 oo ives oo 6s 6 ke 15, 16, 18, 19,40

Reid v. Colorado, 187 U.S. 148, 23 S.Ct. 92 (1902) ....... n

Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24(1941) ...... a

Robertson v. Califomia, 328 U.S. 440, 66 S.Ct. 1160

(TM re AR se 2

Rosdail v. Western Aviation, Inc., 297 F. Ses: 681

ie. TOES oe 5K ities ec cd %

Rosenhan v. U.S., 131 F.2d 932 (10 (1900) 2. 17,34

v. Shepard, 230 U.S. 352, 33 S.Ct. 729

CR eres ES %

Savage v. Jones, 225 U.S. $01, 32 S.Ct. 715 (1912) ..... 4,71

Seaboard Air Line R. Co. v. Blackwell, 244 U.S. 310,

SP SRE OCI) eee as PO ees 73,79

South Carolina State Highway Dept. v. Barnwell

Bros., 303 U.S. 177, 58 S.Ct. 510 (1938) .......... 20,41

Southern Pac. Co. v. Arizona, 325 U.S. 761, 65 S.Ct.

SISTINE Se 20, 22, 63, 73, 76, 79

Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct.

pI er get 8 AS 8

Southern R. Co. v. Railroad Sioeahaslaes 236 US.

439,35 $.Ct. 304 (1915) Cees ean ge tee eae oak 17

Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1323

CORN i ete yc eS tes ee 18

Standard Stock Food Co. v. Wright, 225 U.S. 540, 32. :

SG Gh) ee ee eS ste 2 nN

Texas & P. R. Co. v. Abilene, 204 US. 426, 27 S.Ct.

NA Ph 6 5G kc ok oo wins oo 20

ey ee Town of Morristown, 108

per. 461, 261 A.2d 692 (1969) ............ 21, 72

from Harrison v. McGinley, 179. F. Supp.

EN Foe a 78

TIE IE ore ene 17, 18, 34

bark v. Owens-Illinois Glass Co., 311 U-S.

OED hoses ance, ALS 18

Superior Court of Arizona,__ P.2d ___

RS ie coe eee 21, 72

Pharmaceutical Co. v. Cameron, 76 F.2d 290

EEN Ee et ed 78

Georgia, Inc. v. Marietta, 416 F.2d 251 (5 ‘

lates Constitution

Duties ...........:..0.,P5°. 65

Materials

NE oo. 5S ck nk oad passim

EE LG a Ri eae eee 27, 52

Io 27, 52

5 as is ko vrai cae is 25

ie Se oka sc aes 25

I srs i oo i eo os cs ek 26, 27, 46

ie sok bois Sw, os Ck has 46.

a ae. 2. O29 =e ¢ 6-6 06's 6 66.0 's 0 0 @ 6 6 6:66 6 ee

Sew eee eee ee ew ee eee eee eee ete eeeg”

eee eeeeeeevreeevreeeeeeeeeeeenee tenes

WUE TINGD. E528 ee ee

08 Gia ain c oon vss oka ao

I 88 Oe a. a

Ne oe eh Ss se sioss. 6 oc. eee 4

Me ce make a

5s wwikn vanes 4%

A ns ys’ bdane sx eeae 43

iw tne a > sed 43

ss yc ht cake n

I oe a i Ai 12, 48, 51, 52, 54,64

49 USC 1432, as added by P.L. 91-258, 84 Stat. 234 ...... 61

P.L. 92-574, 92nd Cong. 2d Sess., Oct. 27, 1972, __Stat.

ee AEE ERS LTS Son vee t ESE ee ERR EEW OOS UD passim

RN eo es 36

Federal Aviation Regulations:

ic ps ns bn ceo tue acun 2

ee as yoshi ch Sep eee K «va ON

eee eee ewe eer eee er reese eee eee eeeeee

se eee ee ee ees eee eee eee eee eeeeeee

oe |

eS FS oP Oe LSC oe eC CROP DH Oe Ce Oe Oe

we @. 8: €- bh Oe 2-0 0 6 & 6-0 se o's F @' 66

eee eee er weer e ere eee e eer eeeenwneeee

eeeereere ee eeseeeeeeeeeeeeeeeeveee®

PR Part 91

(xti)

Secondary Sources: ee

Cong. Rec., 90th Cong. 2d Sess., June 10,1968 ......... 4“

Cong. Rec., 92d Cong. 2d Sess., February 29,1972 .. . 3, 54,55

Cong. Rec., 92d Cong. 2d Sess., October 12,1972 ........ 55

Cong, Rec., 92d Cong. 2d Sess., October 13,1972 ........ 4

Cong. Rec., 92d Cong. 2d Sess., October 18,1972... 7.54

Hearings, H. Subcommittee of Interstate and Foreign

Commerce, H.R. 12616, 85th Cong. 2d Sess.,

WO 8 Od Sl ee ins oc ee ie OE 29

Hearings, Sen. Subcommittee on owas S. 3880,

85th Cong. 2d Sess., 1958 ......... . 25,29, 30, 65, 67

Hearings, Sen. Subcommittee on Maal & S. 1016,

92d Cong. ist Sess., Part 2, July 12 and 13,1971 .... 58,79

H. Rep. 91-601, 91st Cong., 2d Sess., 1969, 2 U.S.

Code Cong. and Admin. News, p. 3058,1970 ....... 61, 66

H. Rep. 92-842, 92d Cong. 2d Sess., 1972 ............. 53

S. Rep. 1811, 85th Cong. 2d Sess., 1958 ....... 11, 24, 28, 43

S. Rep. 1353, 90th Cong. 2d Sess., 1968 .............. 49

Other References:

Aviation Cost Allocation Study, Working Paper No.

5, Department of Transportation, July,1972 ......... 6

Aviation Cost Allocation Study, Working Paper No.

7, Department of Transportation, July, 1972 ......... 6

Business Aircraft Specifications, Studies in Business

Policy, No. 132, National Industrial Conference

Board, 845 Third Ave., New York, New York, (c)

SESS Ee lee Sch aah Er icicle as eae 5

General Aviation Operating Costs, Department of .

Transportation Policy Study, February, 1969 ... *

Joint NASA-DOT Civil Aviation R & abe Study,

March, 1971

(xiii)

‘ ment and Analyses of Noise from Seventeen

craft in Level Flight, Tanner, Department of

Te NS Ae | 1) On a ern 6 |

utiet, Vol. VI, No.4,p.137 ............0.... 2

IN THE

PREME COURT OF THE UNITED STATES

é OCTOBER TERM, 1972

No. 71-1637

THE CITY OF BURBANK, et al,

Appellants,

LOCKHEED AIR TERMINAL, INC., et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF AMICUS CURIAE ON

BEHALF OF THE NATIONAL

BUSINESS AIRCRAFT ASSOCIATION,

INC., URGING AFFIRMANCE

PRELIMINARY STATEMENT

Once we recognize that the future is created in

, Measure by our present decisions, we become

¢ of our need to recognize that there are

a! futures that we are either helping to

or forestalling by our present decisions. For

this reason our decision-making must be based on —

visions of the world.that may be realized and these .

alternative futures must be developed by a labor of

imagination and thought. For this reason, the phrase

out.!

Mr, Williams, a futurist of some repute, has set by this

quotation the tone and the basis for this presentation by

the National Business Aircraft Association, Inc. (NBAA),

before this honorable Court as amicus curiae

pursuant to Rule 42 of the Court’s rules.”

Issues involving the quality of our environment are

hotly debated, and rightly so, for these are life and death

issues for judges, pilots, businessmen, airline executives

and city officials. Like most environmental issues, the

subject of aircraft noise has been the focus of a great deal

of concern for all citizens, and especially those who live

in and around airports. NBAA and its member companies

The predicate for NBAA’s participation in this mannet

will be fully revealed in subsequent presentation and

argument. Mr. Williams’ cited statement, calling for the

exercise of reasoned and cautious judgment does not

militate against this concern, but rather, enhances

NBAA’s plea that this environmental issue of aircraft

1 Charles W. Williams, Jr., “Inventing a Future Civilization” , The

Futurist, Vol. V1, No. 4, p. 137, at p- 140. yt aont

2Consent for this participation was obtained by the Nation

Business-Aircraft Association from the primary parties herein. Said

consents are submitted with this brief.

e noise ‘be handled in accordance with the legislative

scheme established by Congress, by those federal agencies

, empowered to act and develop thoughtful solutions.

@ natural reaction of those exposed to the

effects of excessive aircraft noise in the

tdinity of airports is to demand curtailment of that noise

in any. way that brings immediate relief. Such has been

the action of the City ofBurbank with the passage of

No. 2216. Rather than allow a leap into a

solution in the form of a limitation of hours

lbenticn at airports,° it is respectfully urged that the

Court permit the public’s interest in both noise controls

in air commerce be served by the agencies

clus empowered by Congress to handle these

matters: the Federal Aviation Administration and the

mental Protection Agency.

the position of NBAA that a national policy of

ent of aircraft noise necessitates a uniform and

ited program. It is further postulated that the

has been proposed and enacted by Congress, and

} legislative scheme and activity thereunder have

sempted the field of aircraft noise control. NBAA

eves; and would convince the Court, that -a

¢ of State or local regulation in the form of

rt curfews would be destructive of that uniformity

a our safety, and “stand.as an obstacle to the

ompushment and execution of the full purpose and

chi of Congress.” Hines v. Davidowitz, 312 U.S.

52,61 S.Ct. 399 (1941).

ie statement of the Hon. Rep. Mikva, Cong. Rec. H. 1534, 92nd

‘Cong 2 -oghhnahaatd 19, 1972.

INTEREST OF THE .

AMICUS

The National Business Aircraft Association, Inc., isa

non-profit corporation, incorporated under the Not-For

Profit Corporation Law of the State of New York. It had

its original incorporation in that State in 1947. The

Association has its primary offices in Washington, D.C.

As suggested by its title, NBAA is the representative of

more than 890 member companies located throughout

the United States. In fact, it has membership in 46 States

of the continental United States, and ‘the District of

Columbia. A reading of the membership of NBAA could

be likened to reading Fortune Magazine’s list of the

nation’s 500 largest companies.

The avowed purpose of the Association is to protect

and promote the aviation interests of corporations

operating aircraft both nationally and internationally as

an aid to business, and to foster among them the highest

degree of operational efficiency and safety.

The role of business aviation is not widely understood

by those outside the business and corporations actually

engaged in it. The corporate aircraft is often construed as

the private toy for the exclusive pleasure of the chief

executives of a large company. Appellants in the instant

case demonstrate this view by passing off the statement

that—

The only other flights affected by the ordinance’

were principally departures (at least three - week)

of corporate jet aircraft [R. 389] .!

The “corporate jet aircraft”, or business aircraft as we

prefer to call them, based at the Hollywood-Burbank

! Jurisdictional Statement, at p. 9, Appellees, Vol. 1, p. 52.

p vie.

, are the property of Union Oil Company, Sears &

uck, Fluor Corporation, Ambassador College, Cal

t Ways, and the Belridge Oil Company.? These

es Operate equipment such as the Lockheed Jet

an aircraft with a cruising speed of 570 mph and a

nge of 2,450 miles, costing as much as $2,150,000; the

tream II, a jet aircraft manufactured by Grumman

Airctaft Corporation, an NBAA member, with a cruising

seed of 590 mph, at a cost of $3,400,000; the De

favilland 125, a Hawker-Siddely International, Inc.,

moduct, with a cruising speed of 510 mph and a range of

060 “miles, at a cost of $1,000,000: Lear jets, with

crusin, speeds up to 508 mph and ranges of about 1,800

ies, costing between $805,000 to $950,000; and

falcons, manufactured in France, sold through Pan

American World Airways, Inc., for about $1,600,000,

pruising speeds of 540 mph and a range of about

miles.*

m the foregoing, it is clear to see that the business

it based at the Hollywood-Burbank airport have the

ity of moving rapidly in interstate commerce, and

ational air commerce, for long and uninterrupted

Moreover, Union Oil Company has additional

aircraft and additional bases at Midland and

“ston, Texas, Des Plaines, Illinois, and Lafayette,

@iisiana. Sears, a huge and well known corporation, has

igitcraft based in Chicago as well.

rr » Fluor, and Union Oil are all NBAA members.

fares developed Table 1, Business Aircraft Specifications,

Bment to Business Aviation Practices, Studies in Business

fy No. 132, (€) 1970 National Industrial Conference Board,

M5 Third Avenue, New York, New York 10022.

BRS,

(ae

The Hollywood-Burbank airport is only a sm

example of the extent of business aviation’s involvement

in interstate commerce. While the scheduled carriers ser

about 970 airports across the United States busines

aircraft can and do serve thousands of the nation’s mor

than 11,000 airports.* According to the Department of

Transportation, there were 1060 turbojet genen!

aviation’ aircraft operating in 1972, with an expected

increase to 1,145 in 1973 and to 1,227 in 1974.® In 1972

there were 790,000 operations by general aviation

turbojet aircraft in the United States, with an expected

increase to 960,000 operations in 1974.7 Busines

aviation constitutes the majority of these aircraft and

operations.* The total hours flown for business aviation

in 1971 totalled 7,119,000 hours, with an average flying

‘time of 1.2 hours? per flight. The FAA has forecasted

that by 1980, 12.8 million hours will be flown by

business aviation operators.

These factors are presented in order to demonstrate

the extent of business aviation’s involvement in interstate

* affidavit of Lawrence Bedore, Manager, Airport Services,

National Business Aircraft Association, Inc., submitted in

Township of Hanover v. Town of Morristown, 108 N.J.Super. 461,

261 A.2d 692 (1969), attached here as Exhibit I.

SThe term general aviation is utilized to describe non-

commercial aviation and includes business jets.

of Policy Review, Dept. of Transportation, July, 1972, Table B2,

Appendix B. :

T[bid,, App. C, Table C-1. -

® Aviation Cost Allocation Study, Working Paper No. 5, Offic

of Policy Review, Dept. of Transportation, July, 1972, at p. ‘92.

* Ibid. , Table 36.

“@mmmerce, and the obvious interest of NBAA, on behalf

fats membership, in a matter as significant as a locally

ed curfew, that has the implication for broader

pation as well.

sophistication and pace of many business

les today require the use of air transportation

those businesses to remain competitive. Produc-

processes and inventory distribution concepts

changed as a direct result of civil aviation.

production stages may be widely separated

timize skills and minimize costs, while the

i of air transportation helps eliminate large

mtories. Speed -has also allowed businessmen to

@ the sphere and rate of their activities. As a

it, it has become practical,to decentralize

ations and centralize management. The speed,

city, and flexibility of civil aviation have

Wed business to compete more efficiently in an

of rapidly rising costs. Consequently, consumers

ly are enjoying more products for less cost than

id have been possible if business were forced to

pre-World War II air transportation and other

10ds for movement of people and goods.}°

ness aviation has come into being as the result of

alluded to in the above quotation. The concept

Corporate aircraft as an expensive toy is

ited in today’s age of moving executives and

tte employees to and from places that airlines do

ch directly at any time of the day or night."! The

business jet aircraft translates time savings into

Profits, and it makes dollars and sense for large,

NASA-DOT Civil Aviation Research and Development

y; Report, March, 1971, at p. 4-3.

multi-state organizations suchas Sears and Union Oil, to

move its people by company aircraft to cities unserved by

air carriers or distant from air carrier airports. Th

business aircraft also adds flexibility inasmuch as,

corporate executive often must attend meetings or make

appearances at cities served by air carriers at times when

their schedules do not match his.

The flights of business aircraft are regulated by the

Federal Government, just as all civil aircraft are regulated.

Corporate pilots must meet standards prescribed by the

FAA. In most cases, these pilots hold Airline Transport

Ratings, but they have no less than a Commercial Pilot’s

Rating to operate a business aircraft as pilotin

command.!* The special status of business aviation has

been recognized by the Federal Government by the

recent passage of a new Subpart D to Part 91 of the

Federal Aviation Regulations, 14 CFR 91D. Under this

new Subpart, business aircraft operators are held toa

higher standard of care than that class of aircraft users

-known as “general aviation”. One of the reasons for

upgrading the regulations was business aircraft them-

selves. Business jets are as fast and as complex as the jets

flown by air carriers. They have similar capability m

range. Although the. load factors are widely disparate,

business jets use the same facilities and require much the

same services as do air carriers.

NBAA’s membership operating these jet aircraft, by

and large, are companies involved heavily in interstate

commerce, utilizing the aircraft in other than local

flights, and have a real interest in the non-uniform and

unregulated employment of curfew from State to State,

and locality to locality. The concern hinges primarily on

safety factors, but it would be less than candid for NBAA

Se eee ee f

"lB Bedore Affidavit, supra. y

ca has been testimony in the Court below that the

siti of local curfew ona less-than-uniform basis

Or at airports that did not have curfew.!3

aad of course, easily translates into safety

ms.!* Congestion ey calls for restricted

, Severe congestions builds around busy terminal

, the traditional ‘first come, first served’ of the

‘The present approach for alloting time and space

8 workable only if there is excess capacity in the

stem or if users are willing to accept substantial

lays. The problem is compounded because the

umber: of alternate routes is limited and airborne .

ays cannot be too long... .!®

£3

‘business aircraft operators are sure to fall behind

f carriers in the priority established to handle

nermore, the concept of congestion creating safety

ns is a enatter of concern for pilots of all aircraft,

ecially those of jet aircraft. In high speed and high

ce <i game things can go wrong suddenly, and

lees App., pp. 213-217, 257-265, 294-295.

264-265.

-DOT-NASA Report, Civil Aviation Research and

it Policy Study, March 1971, p. 5-9.

Papers, p. 3-37.

without warning. This danger is compounded in 4

crowded sky. Ordinarily highly skilled and competent air

traffic controllers may become overburdened due te

curfew-caused congestion.

The point to be miade is that NBAA is legitimate

concernéd for the lives on board their members’ aircraft,

as well as for the lives of those on other aircraft. The

basis for the concern is not that there is a curfew, buta

curfew that is locally imposed by an organization not

equipped or empowered to take into. consideration all of

the aspects of traffic flow and aviation safety. No party

to this matter has contested the fact that the Federal

Government has exclusive jurisdiction over the movement

and coordination of aircraft from an air safety point of

view. Noise curfew has a direct impact on safety, and all

aspects of safety-and those things impacting upon it

require uniformity and coordination.

Economically, Sein tid: teak tenth inate

anticipated congestion, airborne delays, diversion and

forced layovers due to curfew will be expensive. There is

testimony on the record of the testimony of Mr. Von

Kann of the Air Transport Association, Mr. Pyle of the

Aviation Development Council of LaGuardia Airport,

New York, and Mr. Mitchell of Continental Airlines, with

respect to the expense of delays, layover and diversions.

They have also testified as to flight cancellations due to

time zone changes. Much the same is true with respect to

corporation aircraft operations. The benefit of a

expensive business tool, at an average operating cost of at

least $420.00 an hour!” whether or not it is ip the aif,

rapidly decreases for each hour it is delayed, diverted or

grounded. This translates into economic injury for bes

Opeceler, 8 and no doubt impacts on profits. ae

"17 General Aviation Operating Costé, Office of

_ Development, Dept. of Transportation, Feb. 1969.

of regulation of our _ nation’s airspace

“‘priginally gave rise to the need for a single, paramount

_withority regulating users of the diminishing commodity

“known as air space, and coordinating usage in the interest

safety.'® Noise control in the form of curfew not

-fastituted by those charged with considerations of safety

‘= well as environment will ‘create a hazardous

@reumstance. If locally imposed curfews such as the one

and all aviation users will be materially affected

3 ‘Tegard to the safety of their operations, as well as

fie economics involved. NBAA has cooperated with the

Federal Government with respect to safety and noise

trol'in the past,!® and strongly urges that the Court

it EPA and FAA to get on with their Congres-

ly assigned duties without the well-meaning, though

fous, interference of State and local authorities.

SUMMARY OF ARGUMENT

I. Preemption Argument

The imposition of noise regulations with respect to

ft noise must be carefully imposed by a centralized

f because of the complicated and fragile system of

control in the United States. Coordination and

‘Rep. No. 1811, Sen. Bill 3880, Federal Aviation Act, of

h Cong. 2nd Sess., July 9, 1958, at p. 5.

LA has been active in upgrading the safety standards of its

bership and took an active role in securing the upgrading of

tL to Part 91 of the FARs. NBAA membership recently

pated in noise studies at FAA’s NAFEC, in New Jersey (data

i) and were part of DOT’s Report of November, 1971,

tent and Analyses of Noise From Seventeen Aircraft In

pht, by Carole S. Tanner.

timing between the various elements of the National Air

Transport System bespeaks of the necessity fo

uniformity, in order to ensure that while noise is

adequately controlled, safety is not compromised. A

noise curfew at a given airport has an immediate impact

on air traffic flow at that airport, and has a domino effect

on other airports. The result is a change in air traffic flow

that places strains upon the regional air traffic system,

Noise curfew implemented at more than one airport ina

region will impact upon air flow beyond the region.

Curfew instituted on an ad hoc basis will affect the

system nationally. The effect regionally or nationally will

be disruptive of requisite uniformity and coordination

through delays, diversions and cancellations. As such,

curfew is an invasion into a field cloaked with a public

interest. It is submitted that this interest is so dominant

that the Federal system will be assumed to preclude

enforcement of locally originated curfew.

b. In order to demonstrate the extent of the Federal

interest in aircraft noise as it relates to safety, one need

only turn to the Federal Aviation Act of 1958. The Act

and its legislative history are replete with statements

demonstrating that Congress intended to fully preempt

regulation of navigable airspace with respect to safety.

Anything else that affects safety is regulated as well.

Furthermore, from a review of §611 of the Federal

Aviation Act, added in 1968 and amended in 1972, as

well as its complete legislative history, it emerges as clear

that Congress intended to preempt the field of regulation

of aircraft noise per se, because of the-need for

centralization. FAA, with responsibility for an Overview

of the National Air transportation System has been

teamed with another Federal agency, the Environmental

Protection Agency, to achieve a working compromise

‘etween curtailing aircraft noise and maintaining safety

_4aait commerce.

j The Congressional scheme of legislation, coupled

the pervasive and thorough regulatory enactments

mented by FAA and the Civil Aeronautics Board,

f demonstrates an intention to preempt. In

ition; the airport curfew at Burbank, and the airport

t generally, conflict directly with the regulations of

in the noise and safety area, as well as those of CAB

| economic area. The fact that curfew goes beyond

AA regulations in noise control does not establish

P is a field, supplementary regulations instituted by

or local governments that surpass the Federal

Burden on Interstate Commerce Argument

6S May, in the exercise of their recognized and

ate police powers, burden interstate commerce

-a framework developed by the Court over the

‘The exercise of the State’s power must be

able and non-discriminatory, and must be directed

‘the end sought accomplished. It must operate in

that has not been specifically or impliedly

sted by Congress, and it may not be in conflict

ny Congressional legislation. The action must not

) Tequired national uniformity, disrupt free passage

bee rig ble waterways, exclude Federally licensed

or substantially impede or directly burden the

‘How of interstate commerce.

he Burbank Ordinance is directed toward the end

it, noise control, but in a manner that is in

ifitial conflict with a need for national uniformity.

It is operating within a preempted area,

collision course with several acts of

regulations drawn thereunder. Curfew closes airports to

aircraft which are in interstate commerce by virtue of the

fact that airports, the airways, and navigable airspace an

erstate nature of busines

aircraft, that are directly affected. The Burbank curfew,

or curfew generally closing airports, will exclude ;

Federally licensed activity.

From the record developed at trial, it is submitted that

neither a consideration of the Burbank situation alone,

nor a consideration of imposition of regional or national

curfew, permits the conclusion that such curfews only

incidentally or insubstantially burden interstate com-

merce. The facts developed at trial demonstrate a

substantial economic impact upon the free flow of

interstate commerce through the imposition of curfew,

whether applied to the instant situation, or generally.

ARGUMENT

POINT I

~ CONGRESS HAS PREEMPTED THE FIELD OF

= REGULATION OF ALL NAVIGABLE AIRSPACE,

= INCLUDING REGULATION OF NOISE IN AND

“AROUND AIRPORTS.

“It. is often a perplexing question”, wrote Justice

as in 1947,' “whether Congress has precluded state

| or by the choice of selective regulatory measure

ft the police power of the states undisturbed except

state and federal regulations collide.”

is the question before the Court in this matter.

e difficulty here extends beyond the interpretation

“Act of Congress and a single scheme of °

fons, as in the warehouseman cases.2 When

g legislation, Federal, State, or local, impacting

ation, there must be a consideration of the safety

of the legislation, as well as its stated subject

_ In treatment of this matter, therefore, NBAA will

# to analyze the situation from both the safety and

spects, and demonstrate that from both points of

that we are dealing with a “field in which the federal

is so dominant that the federal system will be

i to preclude enforcement of State laws on the

sie ct.”

te ». Santa Fe. Elevator Corp. 331 US. 218, 67 S.Ct. 1146

it p. 230, 1152.

pee also, Rice v. Board of Trade of the City of Chicago, 331

747,67 S. Ct. 1160 (1947).

Santa Fe Elevator Corp., supra, at p. 230, 1152.

A. Tests For Preemption Drawn

from the Case Law

We are indebted to his Honor, Judge Matthas, Chief

Judge of the Eighth Circuit Court of Appeals, for his

highly persuasive decision in Northern States Powe

Company v. State of Minnesota,* which will be discussed

infra, but most of ‘all for his analytical approach in

inquiring into a question involving Federal preemption!

In setting forth the tests announced by Chief Judge

Matthas, we have changed the order slightly and

expanded somewhat in the citation of the case law to

provide this Honorable Court with as much of the case

_law as possible. *

The tests NBAA believes applicable to this case are és

follows:

1. Considering the aircraft noise aspects of this case

and the impact of curfew on aviation safety, has Congress

expressly. announced in the Statutes involved its

supremacy in regulating the area of aircraft noise? If it is

found that an expressed intention to preempt this sphere

of regulation exists, the Ordinance known as Number

2216, section 20-32.1 of the Burbank Municipal Code,

must be found to be an unconstitutional excursion intoa

field fully occupied by Congress. Campbell v, Hussey,

368 U.S. 297, 82 S.Ct. 327 (1961); Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146 (1947);

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

“447 F.2d 1143 (8 Cir. 1971). . .

5 Northern States, supra, pp. 1146 and 1147.

*Federal Aviation Act of 1958, as amended, 49 USC 101 ef

seq. ; Noise Control Act of 1972, 86 Stat. 1234, P. L. 92-574, 92nd

Cong., H.R. 11021, Oct. 27, 1972. /

132, 83 S.Ct. 1210 (1963); ALPA yp. Quesada, 276

1 892 (2 Cir. 1960); American Airlines v. City of

jon Park, 297 F.Supp. 207 (DC WD Ky 1968) aff'd

curiam 407 F.2d 1306; cert. denied 396 U.S. 845

9), American Airlines v. Town of Hempstead, 398

369 (2 Cir. 1968), cert. denied 393 U.S. 1017

9); Head v. New Mexico Board of Examiners in

- Optomet , 374 U.S. 424,83 S.Ct. 1759 (1963); U.S. y.

“Qty of New Haven, 447 F.2d 972 (2 Cir. 1971); In re

Veterans Air Express Co., 76 F.Supp. 684 (DC NJ 1948):

‘Penntylvania v. Nelson, 350 U.S. 505, 76 S.Ct. 477

09 >); JUAW vy. O’Brien, 339 US. 454, 70 S.Ct. 781

4950); Rosenhan v. U.S. 131 F.2d 932 (10 Cir. 1942).

/ 2°if there is an announced express intention to

preempt the field by Congress, the States cannot exert

itant or supplementary regulatory authority

activity that is the subject of the preemption.

Pigg v. Commonwealth of Penna., 16 Pet. 539, 10 L.Ed.

160 (1842); Charlestown & W.C RR. Co. v. Varnille

Co., 237 US. 597, 35 S.Ct. 71S (1915);

tern R. Co. v. Railroad Com., 236 U.S. 439, 35 S.Ct.

915); Pennsylvania v. Nelson, supra; Rosenhan vy.

supra; Hines v. Davidowitz, 312 US. $2, 61 S.Ct.

#7 (1941); Napier v. Atlantic Coast Line, 272 U.S. 605,

47 S.Ct. 207 (1926); Penna. R. Co. v. PSC of Penna., 250

US. 566, 40 S.Ct. 36 (1919); Perez v. Campbell, 402

37, 91 S.Ct. 1704 (1971).

addition, where the intention of the State legislature

@ Wegislation is to exercise its police power, and its

K@ildtion is in no way intended to interfere with a

Gongressional action, if the State legislation is in a

Sempted area, it must fall. Perez y. Campbell, supra;

la v. Barber, 136 U.S. 313, 10 S.Ct. 862 (1890).

Furthermore, the Supreme Court has held that even if

the State’s. action has preceded the preempting

Congressional legislation, the Court can consider the later

drawn statute of Congress that fills the field, and strike

down. as unconstitutional the. prior State action. See

Hines v. Davidowitz, supra, wherein the Supreme Court

considered and found void the prior-passed Pennsylvania

Alien Registration Act in light ef the Alien Registration

Act passed by Congress. Also see Vanderbark »,

Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347

(1941); HP. Welch Co. v. New Hampshire, 306 U.S. 79,

59 S.Ct. 438 (1939).

3. Where there is an impossibility of compliance with

both Federal and State enactment (so-called conflict), a

holding of Federal exclusion is inescapable. Florida Lime

and Avocado Growers, Inc., supra; Case v. Bowles, 321

U.S. 92, 66 S.Ct. 438 (1946); Cloverleaf Butter Co. ».

Patterson, 314 U.S. 148, 62 S.Ct. 491 (1942); Perez ».

Campbell, supra; Rice v. Santa Fe, supra; Colorado

Anti-Discrimination Co. v.. Continental Airlines, 372 US.

714, 83 S.Ct. 1022 (1963); American Airlines, Inc. ¥.

Town of Hempstead, supra; Allegheny Airlines ¥.

Cedarhurst, 238 F.2d 812 (2 Cir. 1956); Castle v. Hays

Freight Lines, 348 U.S. 61, 75 S.Ct. 191 (1954); Huron

Portland Cement Co. v. Detroit,” 362 U.S. 440, 80 S.Ct.

813 (1960); Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87

(1937); Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373

(1945); Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1323

(1963); U.S. v. New Haven, supra; Gibbons v. Ogden, 22

U.S. 1 (1824).

7 The Huron case is relied upon substantially by Appellants. It

will be demonstrated injra that it is not controlling of the issue at

hand but is in fact supportive of Federal preemption in this

situation. J :

or.

Where there is neither announced preemption, nor a

F conflict, the Court has examined the circumstances

sd Federal preemption. Bethlehem Steel Co. v. N.Y.

Labor Relations Board, 330 U.S. 767, 67 S.Ct.

(1947); Napier v, Atlantic Coast Line, supra; Castle

& Hays Freight Lines, supra; Campbell v. Hussey, supra;

». Santa Fe, supra; Florida Lime and Avocado

wers v. Paul, supra; Hines v. Davidowitz, supra.

judge Matthas tells us that there are four major

Ne to be asked in implying preemption:

+ @) Is an aim and intention on the part of Congress to

occupy the field revealed by the legislative history of the

Federal enactment? Florida Lime and Avocado Growers,

sipra; Campbell v. Hussey, supra; Rice v. Santa Fe, supra.

0) Is the Federal regulatory scheme so persuasive as

ba t an intention to preempt the field?

a. v. Nelson, supra; Bethlehem Steel v. N. Y.

Sta le Labor Relations Board, supra.

Z {) As the subject matter involved one that demands

exclusiver ess of Federal regulation in order to achieve

mity vital to the national interest? Florida Lime

locado Growers, supra; Campbell y, Hussey, supra;

ton Portland Cement Co. y. Detroit, supra; Northern

Power Co. v. Minnesota, supra; American Airlines

of Audubon Park, supra; Colorado Aniti-

mation Com. y. Continental Airlines, supra;

american Airlines v. Hempstead, supra; Head v. N.M.

Seard of Examiners, supra; Hines y. Davidowitz, supra;

Ugil vy, FPC, 387 USS. 428, 87 S.Ct. 1712 (1967);

Mer-Bradley Local No. 1111 v. Wisconsin E.R. Board,

US. 740, 62 S.Ct. 820 ( 1942): Clove Butter y.

Won, supra; Penna. R. Co. v. PSC of Penna., 250

U.S. 566, 40 S.Ct. 36 (1919); South Carolina Sta

Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.C

510 (1938); Kelly v. Washington, supra; N.Y. Central R

Co, v. Winfield, 244.U.S. 147, 37 S.Ct. 546 (1917);

Townscend v. Yeomans, 301 U.S. 441, 57 S.Ct. 842

(1937); Southern Pac. Co. v. State of Arizona, 325 US,

761, 65 S.Ct. 1515 (1945); California v. Zook, 336US.

725, 69 S.Ct. 841 (1949); Local 174 v, Lucas Flour Co,

369 U.S. 105, 82 S.Ct. 571 (1962); Morgan v. Virginia,

328 U.S. 373, 66 S.Ct. 1050 (1946); Minnesota Rate

Cases, 230 U.S. 352, 33 S.Ct. 729 (1913); Cooley »,

Board of Wardens, 53 U.S. 298 (1851).

(d) The last test to be applied under this heading of

implied preemption is whether the law enacted by the

State stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.

Hines v. Davidowitz, supra; American Airlines »,

Hempstead, supra; Florida Lime and Avocado Growers,

Inc., supra; Gibbons v. Ogden, supra.

We will turn now to a consideration of these tests,

applying case law, stafitory language, legislative history,

or Federal regulation as applicable. The methodology of

the approach will be to treat each test from the point of

the impact of aircraft noise curfew upon the overriding

concern for aviation safety, as well as from the aspect of

the Noise Act of 1972, per se. This approach, by

necessity, will involve some duplication in effort that, for

the sake of clarity, is unfortunately unavoidable.

B. Discussion of Tests for Preemption -

as Applied to this Case ¢

(1) Test (1)—Congress has fully expressed its intention

to regulate all activity involving navigable airspace, froma

safety point of view. Curfew ordinances affect navigable

ge and impact upon aviation safety and are

ore operating within a preempted area.

‘stated in an earlier part of this brief that there

tive relationship between safety and the control

waft noise in the vicinity of airports through

It is obvious that a curtailment of travel through

le airspace has an impact upon such travel. From

! sty aspect it is less obvious that a single incidence

of curfew would have an impact upon safety. It was

‘explained, though, in the Court below and in our

Hinary statement, that curfew, if broadly enacted

ble magnitude.

t decision, and the Williams? case in Arizona.

| Court, as did the District Court below, can and

id consider the ramifications of locally imposed

, a8 its decision herein will be utilized in a flood of

swariew cases should the Courts below be reversed.

ng into consideration matters that naturally flow

Circumstances such as those involved here would

” ship of Hanover v. Town of Morristown, 108 N.J. Super.

met, 201 A.2d 692 (1969).

Villar: v. Superior Court of Arizona, ae

, Vacating 489 P.2d 854 (1971).

not be a proceeding strange to the Court. In Southem

Pacific Co. v. Arizona,* a case that dealt with the

assertion of the State of Arizona that it was within its

police power to regulate the length of freight. trains

passing through the State as a safety measure,* the Court

considered the States surrounding Arizona, and the

ramifications of each State instituting a different set of

rules regulating the length of trains. The potential for

delays, the costs of additional manpower, equipment and

possible inconvenience were all taken into account,

although the only regulation before the Court was that of

the State of Arizona. In Udall v. FPC,* the Court

undertook to postulate a hypothesis in discussing the |

ramifications of the case before it, the construction of a

dam at High Mountain Sheep. Mr. Justice Douglas,

writing for the Court, stated:

Timed releases of stored water at High Mountain

Sheep may affect navigability; they may affect

hydroelectric production of the downstream dams

when the river level is too low for the generators to

be operated at maximum capacity; they may affect

irrigation; and they may protect salmon runs when

the water downstream is too hot or insufficiently

oxygenated. At p. 435,1716.

The Court’ thus reached into the ramifications of

Federal versus local control, which the Court found “may

conceivably make a vast difference in the functioning of

the vast river complex.” At p. 435,1716.

3325 US. 761, 65 S. Ct. 1515 (1945). s

“The statute was held to be a substantial burden ‘on interstate

commerce and thence unconstitutional.

$387 U.S.428, 87 S.Ct. 1712 (1967). 3

‘* 7 Fi f 2

af exercises were involved in Local 174 y. Lucas

-where the potential uncertainty of different

8 of labor contract terms under Federal and State

a possibility that was considered, and in Bibb y.

tight Lines,’ where the difference of standards

=the States of Arkansas and [Illinois for rear

mudguards on trucks was cited in a case involving

RC standards.*® ‘4

tat delays in flight or diversions create a safety

lem is clear from a reading of the case of American

es v. Town of Hempstead.® In the Hempstead case

‘own passed a noise ordinance due to jet noise from

International’ Airport. While the Court found that

se levels were incompatible with sleep, religious

_ entertainment, conversation, classroom activ-

and were a source of distraction and discomfort, it

ise found that the ordinance was operating in a

ed sphere, and would not be allowed to stand. It

9 US. 521, 79 S. Ct. 962 (1959).

0 see. Crandell y. Nevada, 6 Wall. 35, 18 L. Ed. 745 (1868),

the Court made the following statement: “But if the State

a railroad passenger one dollar, it can tax him one thousand

‘Tf one state can do this so can every other state. And thus,

More states covering the only practicable routes of travel

‘to west, or from north to south, may totally prevent or

i burden all transportation of passengers from one part of

mtry to the other.”

BB F.2d 369 (2 Cir. 1968), Cert. denied 393 US. 1017

pree2.

fell not because it was incompatible as a noise standard

with a Federal enactment, but rather, because the

ordinance would necessitate the creation of an unsafe

condition at the airport. i

Now “that the implications for safety due to a locally

imposed noise regulation through curfew have been

established, a short trip through the Federal Aviation Act

of 1958, its legislative history, and some more of the case

law will establish the fact that Congress has fully

_preempted the field of aviation safety and all that

touches it.

a. The Face of the Act.

The Federal Aviation Act of 1958 was the product of a

need for a unified regulatory body, acting in the interest

of aviation safety. The need was brought on by an air

traffic control crisis that could be directly traced to a

highly decentralized system, which permitted several

government agencies and of the military to exercise

a degree of control over air traffic. This lack of

coordination culminated in air disasters, 4 mid-air

collision of two heavily laden airliners in the Grand

Canyon area, as well as mid-air accidents between

military jets and civilian aircraft over Las Vegas, Nevada,

and at Brunswick, Maryland."

President Eisenhower, writing on June 13, 1958, to the

Subcommittee of Aviation, Senate Committee on

Interstate and Foreign Commerce, recognized that a lack ©

105 Rep No. 1811, Committee on Interstate and Foreign

Commerce, accompanying S. 3880, Federal Aviation Act of 1958,

85th Cong. 2nd Sess. July 9, 1958.

14 Jpid. , at pp. 7-8.

rdination between the multiple agencies involved in

fansportation regulation was in large measure

onsible for a breakdown in safety, and accordingly

memmended that S.3880 be promptly reported out of

wt Le ¥

th the need established, S.3880 was produced, and

ngs upon it were begun and completed in hurried

ns.1° The Federal Aviation Act of 1958 was born.

gn the face of the Act, without delving into the

sla history, one can clearly see that the

Adm tor of the FAA was given broad and exclusive

us. Section 103 of the Act, 49 USC 1303, provides

fiat the Administrator shall have the power to regulate

iit commerce “in such manner as to best promote its

pment and safety ...”; to promote and encourage

tvelopment of civil aviation; to consider research

‘and development with respect to the operation of air

avigation facilities, as well as their installation and

Operation; to develop a “common system of air traffic

trol and navigation for both military and civil aircraft;

“to control the use of the navigable airspace of the

States and the regulation of both civil and

lary Operations in such airspace in the interest of

and efficiency of both.”

ection 104 of the Act, 47 USC 1304, declares as

tional policy the public right of freedom of transit

igh the navigable airspace of the United States.

state Foreign Commerce, 85th Cong. 2nd Sess., S. 3880,

16, 1958, at pp. 145-146. Also see ALPA v. Quesada, 276

"892 (2 Cir. 1960), for an outline of the legislative history on

Wid. , at pp. 59, 264.

ete

In Sections 307(a) and (c), 47 USC 1348(a) and (¢)

the Administrator’s powers are further spelled out with

respect to use of airspace. il

Use of Airspace

(a) The Administrator is authorized and directed to

develop plans for and formulate policy with respect

to the use of the navigable airspace; and assign by

rule, regulation, or order the use of the navigable

airspace under such terms, conditions, and limita-

tions as he may deem necessary in order to insure

the safety of aircraft and the efficient utilization of

such airspace. He may modify or revoke such

assignment when required in the public interest. [49

‘USC 1348(c)]} |

Air Traffic Rules

directed to prescribe air traffic rules and regulations

governing the flight of aircraft, for the navigation,

protection, and identification of aircraft, for the

protection 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, between aircraft and land or water vehicles’

and between aircraft and airborne objects. [49 USC

1348(c)]

In Section 313(a), 49 USC 1354(a), the Administrator

of FAA is given broad powers to carry out his duties. It is

herein stated that—

The Administrator is empowered to perform .such

acts, to conduct such investigations, to issue and

amend such orders, and to make and amend such

general or special rules, regulations, and procedures,

pursuant to and consistent with the provisions of

rele

this Act, as he shall deem necessary to carry out the

op ns of, and to exercise and perform his

_ © powers and duties under, this Act.

: “is also given power with respect to air navigation

ties. Section 606 of the Act, 49 USC 1426, states:

D ramps and parking

1.” “Air traffic control” has been defined as a

““eervice operated by appropriate authority to promote

‘the safe, orderly and expeditious flow of air traffic.”

_ From the foregoing, NBAA believes it safe to say that

there are no words of limitation in any of the

‘empowering sections of the face of the Act that would

t from the concept that Congress has intended to

de the field of aircraft safety regulation. From

" definition of air traffic, it is clear that the

mistrator has exclusive control over aircraft on the

a, preparing for take off, and after take-off, as well

the air. Indeed, this concept is supported by Section

) of the Act, 49 USC 1301(32), wherein it is

that—

ent when power is applied for the purpose of

b1f until the moment when the landing run

b.. Legislative History of the Act. “i

NBAA would convince the Court that the search need

go no further than the face of the Act, but re

that a more thorough analysis is called for by this most

important case, we respectfully direct the Court's

attention to the legislative history of the Act on the

subject of Congress’ intention to preempt the area of

regulation of navigable airspace.

Senator Monroney, writing for the Aviation Sub

committee, made it clear at the outset that Congress

intended to establish a paramount authority in the

regulation of navigable airspace. He states that the

Administrator of FAA—

, Would be rer with the management of the

national airspace. .

Further along Senator Monroney points out that—

Aviation is unique among transportation industries

in its relation to the Federal Government-—it is the

only one whose operations are conducted almost

wholly. within the Federal jurisdiction, and are

subject to little or no regulation by States or local

authorities. '*

He goes on to state that—

Thus, the Federal Government bears virtually

complete responsibility for the promotion and

supervision of this industry in the public interest.'®

Senator Monroney recognized the need for an

independent FAA, “with ‘plenary authority .over the

Nation’s airspace....”'7 Assuming that the Sénator’s

14 Op, Cit., S. Report No. 1811, ap. 1.

15 bid. , at p. 5.

16 Tbid., at p. 5.

1 Ibid., at p.7.

“4

ry is standard, Webster defines “plenary” as:

lire, complete. It is clear, therefore, that Congress

led itself to have complete and exclusive control

he Nation’s airspace.

The Administrator is given plenary authority in

matter of air traffic rules, as well as for the

Meyelopment and operation of air navigation

‘facilities.’* [Emphasis supplied. ]

‘the midst of the Senate Hearings, President Eisenhower,

| Moted previously, sent a message to the Senate

committee. In his message, the President stated:

T recommend that the Federal Aviation Agency

"be given full and paramount authority over the use

“by aircraft of airspace over the United States and its

Ps, erritories. . 319

“The Senate and the House Hearings saw the same

‘Mi main theme was the need for a single, unified,

Omnipotent Federal agency, subject only to the President

id the Courts, regulating airspace completely, including

Mat airspace in and around airports from the air traffic

| of view.”° Industry was of the same view. Stuart

bid. , at pp. 14, 15.

Op. Cit., Hearings on S. 3880, at p. 148.

Hearings, House Subcommittee on Interstate and Foreign

merce, on H.R. 12616 (Federal Aviation Act of 1958) 85th

g 2nd Sess., June and July 1958, at pp. 193, 253. Op. Cit.,

ings on S. 3380, at pp. 2, 23, 27, 28, and 29.

Tipton, speaking for the airline industry at the Senate

Hearings, maintained this view, and asserted that, in the

interests of safety, one administrator must have control

over all the airspace of the country.?!

Mr. E. Thomas Burnard, Executive Director of the

Airport Operators Council, stated:

The whole system of air traffic control and

airway capacity ... begins and ends at an airport.

Without the precise and complete control of both

military and civil aircraft on and in the vicinity of

our great metropolitan airports, as well as on the

airways, tragedy can occur again. And without the

integrated planning of airport capacity with airway

capacity, the improvement of one without the other

will create an unacceptable balance.??

Senator Monroney, in response to some points raised

by Mr. Burnard concerning regulation of airspace with

respect to the ground thereunder, stated:

We do not want to overlook anything as

important as proper jurisdiction over ground areas,

or approaches to ground areas that aircraft must use,

as well as the airspace above them.?*

Dovid H. Baker, President of Capitol Airlines, Inc.,

further emphasized the exclusivity of Congressional

action in the regulation of airspace:

21 Op. Cit., Hearings on S. 3880, at p. 39.

22 Ibid., at p. 51. It is interesting to note that the present airport

operators council international, at Section 730 of its current policy

handbook, makes the statement that “disruption of airport

operations through a nighttime curfew is strongly opposed.”

23 Tbid. | at p. 59.

_ ~The need for clear cut and single responsibility in

_,sontrol of airspace requires that the Federal

_ Aviation Act of 1958 be adopted with the utmost

_ Glifford P. Burton, speaking for the Nation’s air traffic

“oon was of the opinion that in the interest of

safety all responsibility for rulemaking pertinent to air

traffic should be lodged in a single agency, and that—

_. The agency should have final authority on the

allocation of airspace, location of airports, designa-

“tion of airways or air routes, control zones, control

“areas, and the establishment of airspace reservations

and restricted area.?5

A.B. McMullen, Executive Director of the National

Association of State Aviation officials was concerned

about the absolute preemption intended by the Act.?® He

therefore proposed the following mandatory language:

“That nothing in the act shall be deemed to abrogate

the right and responsibility of the several States to

protect, under their police power, the welfare and

‘safety of their inhabitants.?” [Emphasis supplied. ]

This language does not appear in the Act as passed by

Congress. Senator Monroney avoided commentary upon

‘@ although he did refer to “close cooperation with state

agencies on the matter of airplane plans and airport

on.” It can fairly be implied , that since

language Proposed by Mr. McMullen did not appear in the

eae

ibid. , at p. 136.

Ibid., at p. 137.

, at p. 742.

final draft of the Act, it was rejected. To reserve power in

the States, under their police power, was not the

intention of Congress.

General E.R. Quesada, Chairman of the Airways

Modernization Board (and the first Administrator of

FAA), speaking for the Administration stated that—

The new agency must be given full and

paramount authority over allocation and use of

airspace by aircraft both civil and military.2°

Mr. James T. Pyle, Administrator of the Civil

Aeronautics Authority, soon to become Deputy Adminis-

trator of the FAA, stated:

.. [Al] ir safety rules apply almost across the board.

Any regulation that is issued in some way or other

affects the safety of the use of airspace.%°

During the Senate Hearings, testimony was received

from Malcom A. MacIntyre, Under Secretary of the Air

Force. On the subject of airport development, Senator

Monroney, in response to a statement by Mr. Macintyre,

stated:

Of course the Administrator has an absolute right

to withhold Federal funds from the Federal aid to

airports. The section you are quoting is where the

private person goes out with private funds to build

{an airport]. We can’t stop them from building one

but-we can stop them from ~— it. [Emphasis

supplied. }

Mr. Macintyre rejoined:

As a practical matter we can’t stop the Port of

New York Authority either if it chooses to use its

own money and change its airport layout.

29 Ibid. at p. 151.

30 Ibid. ,at p. 236.

“Towhich Senator Monroney replied:

"The Administrator of. the Federal Aviation Agency

_ tan deny the entrance of flights from that airport

into the airways system. He can prohibit air traffic.

_ They might build the field but they sure couldn’t

_ Tam not sure that you could deny the airspace to

anybody unless you wrote it in the bill.

Senator Momroney’s reply is clear on the point of

preemption. He said:

_ This [tlhe Act] gives the Administrator control

Over the airspace, therefore he has the right to do

_ just that. We don’t have control over the ground

“Space. Persons can build anywhere they wish. As I

_fead the Act, I think they could still build ground

’ facilities but they wouldn’t necessarily be able to get

-aplane off into the air.

* * * * *

We didn’t assume control of the ground we would

~ control the airspace.31

“$Stro language than that cited above is not

to further support the concept posited in this

Z., at p. 279.

Oi, , atypp. 333, 334.

c. Court Action Concerning Federal

Premption of Airspace

The lower Federal Courts have uniformly handled this

question of Federal preemption of navigable airspace ina

manner analogous to the above discussion. American

Airlines v. City of Audubon Park, 297 F. Supp. 207 (DC

WD Ky. 1968), aff'd per curiam 407 F.2d 1306; ALPA vy,

Quesada, supra; American Airlines v. Hempstead, supra;

In re Veterans Air Express Co., 76 F. Supp. 684 (DC

N.J.1948); U.S. v. City of New Haven, 447 F.2d 972 (2

Gr. 1971); Rosenhan v. U. S., 131 F.2d 932 (10 Gr.

1943).

One case has reached this Court in the area of Federal

sovereignty over the navigable airspace. The case dealt

with the predecessor to the 1958 Act, the vil

Aeronautics Act of 1938. See Braniff Airways, Inc. y.

Nebraska State Board of Equalization and Assessment,

347 U. S. 590, 74 S. Ct. 757 (1954).

The Braniff case probably rightly decided that the

State of Nebraska could properly levy an ad valorem

personal property tax on flight equipment operated by

Braniff within the state. The opinion, however, handles

the argument made by Braniff in the area of Federal

sovereignty over national airspace in a remarkable

manner. Braniff argued that, since it was regulated by the

Federal Government, it could not be taxed by the State.

The Court found that the language of the Cvil

Aeronautics Act did not establish a preemption of

control of navigable airspace, but rather asserted an

exclusive national sovereignty over the airspace of the

limited States. Braniff, supra, at pp. 594-596. This

sovereignty was held to be exclusive insofar as it applied

to foreign governments, but the Act “did not expressly

Jude the sovereign powers of the states.” Braniff

ra, at p. 595.

fe 1938 Act is a far cry from the 1958 Act and its

ie ve history analyzed, supra. It is NBAA’s belief

‘that the Braniff case is of no precedental value since the

‘paisage of the 1958 Act, and must be relegated to its

“6 in history. The 1958 Act does not speak in terms of

e but rather in terms of control, paramount

‘githority, plenary authority, and the like. The language

recommended by the States through Mr. McMullen of

NASAO, supra, designed to insure the States of their

“sovereignty,” was soundly rejected in the enactment of

the. 1958 Act. Braniff is not cited with favor in any of the

“more, recent lower.Court holdings. We urge that it have

“no positive place in this consideration.

“On the issue of preemption, some would point to

AQPA y. Port Authority of N. Y., 305 F. Supp. 93 (DC

ED N.Y. 1969), and Port Authority of N.-Y. v. Eastern

Airlines, 259 F. Supp. 745 (DC ED 1966), and argue that

a weakening i in the preemptive scheme of the 1958 Act is

demonstrated. The Court found in both cases that the

FAA did not oppose the Port Authority in levying its

‘fees, and that no conflict with the Federal scheme

existed. Rather than resulting in an interference with the

safety function, the imposition of the fee schedule was of

‘enhancing effect. The action of the Port Authority,

Geated by a Pact between the States of New York and

‘New Jersey with Congressional approval, did not stand as

“@i obstacle to the execution of a Federal scheme of

ay. Hines v. Davidowitz, supra.

These lower Court decisions are of limited value to

ier side of the issue. On the one hand, they are not

-Tep tative of even a minor weakening in the

preemptive nature of congressional intention in the area of

airspace regulation. On the other, the destiny of the cages

had they proceeded further to the Second Circuit Court

of Appeals is in question. From the legislative history

cited herein, NBAA has more than a little doubt as to the

wisdom of the lower Courts’ decisions in these two cases.

Appellants. will no doubt argue that the Federal

Aviation Act itself does not contain strong preemptive

language. In fact, they may say that the language

contained in the Act is in no way preemptive, and cite

Section 1106, 49 USC 1506, which states:

Remedies Not Exclusive

Nothing contained in this Act shall in any way

abridge or alter the remedies now existing at

common law or by statute, but the provisions of

the Act are in addition to such remedies.

It is important to note that this section addresses itself

to remedies exclusively. The section has been interpreted

as: permitting actions in State courts on contracts

concerning aircraft, commercial matters, and aircraft

torts. A Federal tort action has not been created by way

of the enactment of the Act. Porter v. South Eastem

Aviation, Inc., 191.F. Supp. 42 (DC MD Tenn. 1961).

Rosdail v. Western Aviation Inc., 297 F. Supp. 681 (DC

Colo. 1969); Colonial Airlines, Inc. v. Janas, 202 F.2d

914 (2 Gir. 1953) (interpreting language in the 1938 Act

identical to that employed in the 1958 Act): Mack ¥.

Eastern Airlines, Inc., 87 F. Supp. 113 (DC Mass. 1949)

(interpreting the identical language in the 1938 Act).

As a final point under this heading, we diyect our

attention to Appellants’ statement in their Jurisdictional

Statement concerning the case of Griggs v. Allegheny

County, 369 U.S. 84, 82 S.Ct. 531 (1962). Appellants

33 pp. 14, 15, 16 of Appellants’ Jurisdictional Statement.

m that if this Court finds an absolute preemption

by Congress, a review of the Griggs case is in

e! , Appellants hereby attempt to raise the bugaboo of

ssive governmental pay-offs for noise “taking” in and

_ around the area of airports, should it be found that FAA,

3 ‘acting for Congress, has plenary authority in the

regulation of airspace.

It is submitted that, Justice Douglas, writing for the

Court in Griggs, in no way limited the Government’s

paramount control over safety in the decision. It is

further submitted that the case dealt with a “taking”

problem, and the Administrator of FAA, in prescribing

tions in controlling airspace from a safety point of

view at the locality selected by the airport operator, is

‘not involved in any taking. The airport operator, in order

to obtain Federal participation, must himself “take” and

pay just compensation for all the land necessary to insure

safe operations at the airport. A holding in this Court

that the Administrator, acting for Congress, is the

paramount authority with respect to the safety of all

~ flights in navigable airspace would not disturb the holding

in Griggs, supra, in any way. Since noise regulations

‘impact upon safety standards, it must also be concluded

that the Administrator’s implementation of noise

standards would likewise be divorced from “taking”

tions. “Taking” and supreme authority in

gulating safety in air commerce are by no means

ntical. If this were not so, every enactment of Federal

legislation would result in a “taking” of one form

sidere”] under test one, clearly establishes that safety

flight is the exclusive domain of the Federal

femment. Since airport curfew has an impact upon

safety, it is a logical conclusion that locally imposed

curfew would operate in a preempted area. 3

2) Tests (2) and (3)—Compliance with locally imposed

airport curfew would collide directly with Federally

imposed safety standards, and with the authority of the

Civil Aeronautics Board. Supplementary regulation on

the part of Burbank may not stand.

We have expended a considerable amount of words at

this point in arguing that locally imposed curfew

ordinances such as the one in issue would create a havoc

with respect to the flow of air commerce. It is plain that

we do not have an actual conflict situation here with

respect to forthcoming Federal noise regulations, since

those have not yet been enacted. What we have, as argued

before, is a mandate by a local authority that impinges

upon a nationally enacted Federal scheme of air

commerce, and herein lies the conflict.'

That the conflict is not head-on is not of paramount

concern. We have stated before that noise ordinances of

this sort are direct safety ordinances. American Airlines v.

Town of Hempstead, supra. Furthermore, a conflict can

be once removed from direct confrontation, as in Perez v.

Campbell, 402 U. S. 637, 91 S. Ct. 1704 (1971).

In Perez, supra, an action was brought in a Federal

District Court in Arizona for an injunction and 4

declaratory judgment, declaring a section of the Arizona

Motor Vehicle Safety Responsibility Act unconstitu-

tional. After the District Court dismissed, and the Court

of Appeals affirmed, 421 F.2d 619, this Court reversed

'FAA has some noise regulations in the form of regulation in

the form of regulation of noise at the source, 14 CFR Part 36, and

in locally oriented preferential runway system. These items will be

discussed under test (4).

‘and remanded. The Court of Appeals rested its opinion

‘pon the cases of Kessler v. Dept. of Public Safety, 369

U.S. 153, 82 S. Ct. 807 (1962), and Reitz v. Mealey, 314

US. 33, 62 S.Ct. 24 (1941). In Kessler and Reitz,

financial responsibility laws were considered to be within

the police power of the state, even though they

conflicted with the Federal Bankruptcy Act. This Court,

in reversing, considered Kessler and Reitz to be

“aberrational doctrine.”

The facts which the Court considered in Perez were as

: The Arizona statute required that a driver who

nen a judgment due to an automobile accident will

his driver’s privileges until he demonstrates financial

geeponsibility or satisfies the judgment. While a statute

guch as this appears to be entirely local in nature, the

matter becomes complicated when the driver declares

personal bankruptcy and is discharged in bankruptcy

with respect to the judgment, for while the obligation to

pay the judgment may be gone, the driver’s road

Privileges are still suspended under the Arizona Act. The

question’ before Mr. Justice White and this Court was

Whether the Arizona statute was in conflict with the

Bankruptcy Act of the United States.

». Mr. Justice White, writing for the Court, stated that he

Viewed the Court’s obligation in a conflict case to

‘certain the construction of the two Acts involved, and

‘fo determine whether any conflict exists. He wrote, citing

Hines v. Davidowitz, supra, that in the final analysis the

ourt’s function is to determine whether a challenged

‘State Statute “stands as an obstacle to the accomplish-

Ment and execution of the full purpose and objectives of

> * Also see Castle v. Hays Freight Lines, 348 US. 61, 75 S.Ct.

(1954).

ahi »

If a conflict exists in any way, the Federal scheme

must prevail, even though it may be a more modest, less”

pervasive plan than that of the State. Rice v. Santa Fe,

supra; Napier v. Atlantic Coast Line, 272 U.S. 605, 47

S.Ct. 207 (1926).

It has been stated, on the subject of conflict, that-

The test of whether both Federal and State

regulations may operate, OF the state must give —

way, is whether both regulations can be enforced

without impairing the Federal superintendence of

the field, not whether they are aimed at similar or

different objectives. Florida Lime and Avocado

Growers Association, supra., at p. 142, 1217.

It would be a vain act for Appellants to argue that the

noise ordinance is not a safety ordinance, for it

undoubtedly affects safety. Even if it were accepted,

arguendo, that the noise ordinance was aimed at 2

different area of regulation, it would be an impotent

argument. Napier v. Atlantic Coast Line, supra;

Pennsylvania R. Co. v. PSC of Pennsylvania, 250 US.

566, 40 S. Ct. 36 (1919). B

Nor would it be worthwhile for Appellant to argue

that the Burbank Ordinance is supplementary to the

Federal scheme. If there is an intention to preempt the

field on the part of Congress, supplementary regulation

on the part of State or local governments may not be

credited. Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ba.

1060 (1842); Charlestown and W.C.R.R. Co. ¥

Varnville Furniture Co., 237 U.S. 597, 35 S. Ct. 715

(1915). ot

Because of the widespread impact of curfew @™

aircraft operations, Appellant may not be heard to argue

that the ordinance is of a local nature, that the problem is

one indigenous to Burbank and ‘that Congress may

mably be expected never to deal with it. South

rolina State Highway Dept. v. Barnwell Bros., 303

“$$. 177, 58 S. Et-S10 (1938).

+ “Addressing ourselves, therefore, to establishing that

_ this conflict exists, we turn to an examination of the

‘National Air Transportation System first, and secondly to

“the direct conflict between curfew and the Federal

‘Aviation Act of 1958, as it applies to the Civil

Aeronautics Board.

"Mr. Clifton F. Von Kann, Vice President of the Airline

‘Transport Association, testified at the trial below with

‘respect to the National Air Transportation System or

4 NAS.? He testified that the NAS is. comprised of the

ound system or the airport complex, the airway system,

‘which directly involves the air traffic control system, and

‘Mie fleet of aircraft operating in airspace. Regulation of

is system is split between FAA, in the safety area, and

. Benjamin L. Freiman, Chief of the Los Angeles

lit Traffic Control Center, was called at the trial below

‘® discuss the concept of air traffic flow, an important

nent of the NAS. His operation at the Center handles

it 3,000 aircraft a day, in an area extending toward

‘Me South to the U. S.—Mexican border, toward the East

4% the Colorado River, toward the North to mid-

fornia, and about 150 miles seaward toward the West.

“The area covers 184,000 square miles.5 The objective of

Me Center is the safe and expeditious utilization of

Ispace.© He testified with respect to a step-by-step

a _* Appellees Appendix, p. 257.

) “Appellees App., p. 186 et seq.

4014, ,p. 187.

014, , p. 188.

420

instrument flight through the area regulated by ‘th

Center.’ The description includes the necessities for

flight separation, both vertically and horizontally, time

spacing, routing, and passing the aircraft from tower to

control center to tower. The scheme becomes more

complex the longer the distance, the zreater the duration

of the flight, and the more aircraft in the air. All these

concepts are involved in flow control.® Flow control isa

specialty within a Center,’ and special teams are assigned

to its various aspects. Flow control has become such an

important part of NAS that a centralized scheme or flow

control plan has been established by FAA in Washington.

The Washington Flow Control Center is charged with the

responsibility of alleviating airway saturation at peak

periods, and coordinating the air traffic system.'°

From this analysis on the record, it must be readily

apparent that a very complex, coordinated and fragile

system is at work. A breakdown at any time may well

cause a hazardous situation. Congestion no doubt causes

delays and diversions. Curfew, unless integrated into this

flow control system, and the National Air Transportation

System, must undoubtedly be as frustrating to the end of

safety as congestion and delay. Locally imposed curfew

would be an impairment to a well-structured system of

Federal superintendence, and thence represent a real

conflict.

Turning next to a consideration of the impact of

curfew upon the area of authority exclusively left in the

[bid., pp. 189-192.

8 fbid., p. 193.

*Tbid. , p. 194.

19 Thid. , p. 195.

able hands of the Civil Aeronautics Board, we would

tind the Court that NBAA'’s membership is not

d by the Board, but by FAA. Since the question

ict has no boundaries, we did not feel compelled

it arguments solely to NBAA’s areas of operations.

were exhibits and testimony in the Court below

ing the role of the CAB. There is no question that

is paramount with respect to regulation of the

onc aspects of interstate air transportation. The

CAB was established as plenary authority in this area in

1938, and the 1958 Act did not change its status."

‘

The CAB certificates all interstate air transportation,

49 USC 1371(a). It regulates all schedules, routes,

‘equipment utilized, and airports utilized, 49 USC

437K). No part of the certificate of an air carrier may

Modified in any of these respects without Board

oval, 49 USC 1371(g). These powers apply to

larly scheduled carriers, as well as supplemental

ers, 49 USC 1371(n). Foreign air carriers are

ulated by the Board as well, with respect to their

erations on U. S. soil or in U.S. airspace, 49 USC 1372.

tes charged by air carriers are regulated, 49 USC

The Board is empowered to inquire into air carrier

gement, 49 USC 1385, and issue exemptions from

ulations, 49 USC 1386. In carrying out its assigned

, the CAB has enacted a comprehensive scheme of

ulations, 14 CFR 200-399.110.

urfew at Burbank would be in direct conflict with

F Board’s authority. United Air Lines, Western Airlines,

‘West, and Continental Airlines all use the

Bs $. Rep. No. 1811, Senate Committee on Interstate and

ign Commerce, accompanying S. 3880, 85th Cong. 2nd Sess.,

Hollywood-Burbank Airport for regularly scheduled

flights, and as an alternate airport to Los Angeles airport

when weather conditions there require it. These airlines

are regulated by the Civil Aeronautics Board as described,

supra. It is patently absurd to assume that, should any or

all of these airlines approach the CAB with a request to

institute a flight after 1:00 P.M. or before 7:00 A.M.., the

curfew hours, the Board would consider itself bound by

the Burbank Ordinance. Burbank may no more regulate

this aspect of airline economics than it may approve a

tarrif schedule for United, or sanction the merger of

Continental with Western.

Appellant would point toythe case of Huron Portland

Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813

(1960), claiming that no conflict exists in the instant

case, and base this claim on circumstances in Huron

considered to be factually similar to this case. The Courts

below have distinguished Huron.

In Huron the constitutional validity of certain of

Detroit’s Smoke Abatement Code was drawn into issue.

The case therefore dealt with an environmental issue, as

does this one. Appellants therein were owners of a fleet

of transport vessels operating on the Great Lakes. Two of

their vessels were equipped with fired Scotch marine

boilers, which had to be fired up and cleaned periodically

while the vessels were docked so as to keep deck

machinery operative. When the fires were cleaned, smoke

emissions from the boilers violated the maximum density

permitted under the Detroit Code. The parallel between

that situation and this is obvious. While taking off and

landing, aircraft at Hollywood-Burbank aircraft may

exceed the tolerances of the community, and led to the

enactment of a curfew.

There all similarity ends. Instead of a curfew, the

owners Of the boats were subjected to criminal sanction.

The Court found that the Detroit Code was a legitimate

exercise Of police power. The exercise of this power was

not found to be without the limitations imposed

thereupon by the Courts.

In discussing these limitations, the Court set forth the

applicable tests for preemption, conflict, and substantial

burden on interstate commerce. None of these tests were

met, and appellants failed in their appeal.

The Court stated that intent to preempt—

is not to be implied unless the act of Congress

fairly interpreted, is in actual conflict with the law

_ of the State. Huron, supra, at p. 443, 816.

In considering burden on interstate commerce, the

Court stated that the Constitution—

never intended to cut the States off from

legislating on all subjects relating to the health, life,

and safety of their citizens; though the legislation

might indirectly affect the commerce of the

country. Huron, supra, at p. 443, 816.

But, the Court added, that—

A state may not impose a burden which

materially affects interstate commerce in an area

where uniformity of regulation is necessary. Huron,

supra, at p. 444, 816.

In discussing the Federal legislation, the Court

concluded that it was aimed primarily at and limited to

affording protection “from the perils of maritime

navigation.” Huron, supra, at p. 444, 817.

Comparing the Court’s decision to our situation at this

point, NBAA respectfully. points out that. there is an

actual conflict between Federal enactments and the

Burbank Ordinance. Further, there is an expressed —

intention on the part of Congress to regulate all of

navigable airspace insofar as safety is involved, and this

obligation extends beyond safety in flight to safety of —

persons and property on the ground. Furthermore, the

Burbank Ordinance invades an area so charged with a

need for uniformity of regulation that few who have

travelled in an aircraft will argue with the concept.

It was argued that i in Huron that the mere licensing of

the vessels by Federal authority would manifestly

constitute a preemption. The Court struck down this

argument. The Court went on to add that Detroit, in

enforcing the Code iftvolved, did “not exclude any vessel

from the Port of Detroit, nor did it destroy the right of

free passage.” Huron, supra, at p. 448, 818.

In the case before this Court, the Federal government

does more than license aircraft and crew. It regulates

every movement of an aircraft from the time its engines

are started for take-off, until it has completed its roll-out

and has reached its parking spot. It regulates each aspect

of air cartier economics. It plays a role in airport

placement and use, and selection and installation of air

navigational facilities.'2 There are no parallels between

the extent of Federal involvement with aviation and the

two boats owned by appellant in Huron, supra.

Indeed, the Court in Huron gives us some valuable

clues in handling the Burbank situation. It tells us that,

after all, no vessel was denied entry to Detroit’s ports.

Yet Burbank would deny those entitled to utilize airspace

at the Hollywood-Burbank airport. The Court tells us

that Detroit denied no one the right of free passage.

Burbank would deny aviation users that right, guaranteed

them by the Federal Aviation Act, at the Hollywood-

Burbank airport.

1249 USC 1349, 1350, 1348(b), 1353.

3 47

3) Test (4)—If it should be found that the announced

preemption discussed in Test (1) is not sufficient, or that

an actual conflict between the Federal enactments and

Burbank Ordinance does not exist, then this Court should

affirm the Courts below, for clearly there is an implied

Federal preemption of navigable airspace as it is affected

by aircraft noise and safety.

This last test suggested by Chief Justice Matthas surely

must be found to apply to the case before the Court. In

discussing it, we will break it up into its various elements.

a. The Aim and Intention on the Part of Congress With

Respect to Aircraft Noise, was to Occupy the Entire

Field.

We have already discussed the Federal Aviation Act of

1958 with respect to Congressional intention in the

safety areas, and we have indicated a direct relationship

"between noise and safety resulting in a direct preemption.

It is also apparent, in reading the Noise Act of 1968

which added Section 611 to the Federal Aviation Act of

1958 (49 USC 1431), as well as the recently passed Noise

Act of 1972! amending Section 611, that a cogent

argument can be addressed to the intention on the part of

os Congress to occupy the area of regulation of aircraft

noise, not only from a safety point of view, but from a

- noise point of view as well.?

'P.L. 92-574, 92nd Cong. 2nd Sess., October 27, 1972

Stat.

2NBAA- has elected to treat this matter under this test rather

than in Test (1) because of some ambiguity in the language in the

preemption sections of the 1968 and 1972 enactments. The

intention to preempt, however, is there.

1. Discussion of the 1968 Noise Act.

Turning first to Section 611 of the Federal Aviation

Act, as originally enacted by Congress as Public Law

90-411 in 1968 (hereinafter referred to as the 1968 Noise

Act), we find that the Administrator of FAA was

required by Congress, within the framework of the

Federal Aviation Act of 1958, to 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

application of such standards, rules and regulations

in the issuance, amendment, modification, suspen-

sion or revocation_of any certificate authorized by

this title. [ §611(a).]

The Administrator is required to consult with

such Federal, State and interstate agencies as he

deems appropriate. [ §611(b)(2).]

In considering this enactment, Hon. Congressman

Pickle spoke in support of H. R. 3400. He stated that—

The Committee, in narrowing the governmental

responsibility, requested the noise functions in

FAA, which is a part of DOT. Perhaps, more

importantly, the Committee made the authority

mandatory, rather than discretionary, to assure

that the job would be carried out quickly.

We have to relate noise abatement with safety

and this must be realized by all citizens. It is not

enough to simply obtain noise abatement. We

must have abatement but still maintain safety

standards.* {Emphasis supplied. ]

3Remarks of Hon. Cong. Pickle, H.4707, Cong. Record, 90th

Cong. 2nd Sess., June 10, 1968.

In requiring the FAA to act, and adding this

requirement to the 1958 Act, Congress clearly intended

to preempt the noise area. Interestingly enough,

Congressman Pickle reaffirms NBAA’s contention that

aircraft noise control and safety are inextricably

entwined.

Senator Monroney, writing for the Senate on the

House Bill that was enacted, provided some language in

the area of Federal-State relationships. From the face of

the 1968 Act, it appears that the only duty of the

Administrator is to consult with State governments as he

deems necessary.

In the Senate Committee report, however, a slight

confusion is created.

Senator Monroney stated:

It is not the intent of this Committee in

recommending this legislation to effect any change

in the existing apportionment of powers between

the Federal and State and local governments.‘

It is unfortunate that this language has been seized

upon to confuse a clear intent to preempt. Prior to

making this statement, the Senator wrote:

The bill is an amendment to a statute describing

the powers and duties of the Federal Government

with respect to air commerce. As indicated earlier

in this report, certain actions by State and local

public agencies, such as zoning to assure compatible

land use, are a necessary part of the total attack on

aircraft noise. . . .5 [Emphasis supplied. ]

45. Rep. No. 1353 on H.R. 3400, 90th Cong. 2nd Sess., July

11, 1968, at p. 6.

‘Ibid. , at p. 6.

Br es

The italicized reference is to a statement made bee

Senator Monroney earlier in the report that planning for

land use in areas near airports is a matter largely with

the province of State and local governments.® a

Senator Monroney, after he made the statement we

consider confusing of the issue, went on to cite and quote

' the Secretary of DOT’s letter to the Committee of June

22, 1968, and stated that the Committee concurred in

the views expressed therein.

The Courts have held that the Federal

Government presently preempts the field of noise

regulation insofar as it involves controlling the

flight of aircraft. Local noise control legislation

limiting the permissible level of all overflying has

recently been struck down because it conflicted

with Federal regulation of air traffic.

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

power to control noise by regulating the flight of

aircraft. [Emphasis supplied. ] 7

Senator Monroney, after adopting this language, added

that:

Of course, the authority of units of local

government to control the effects of airport noise

through the exercise of land use planning and-

zoning power is not diminished by the bill.®

®Ibid., at p. 2.

7The Secretary is referring to the Hempstead Case, supra.

8 Ibid. , at p. 7.

From the foregoing, the following analysis is made.

The 1968 Act was an amendment to the Federal Aviation

Act of 1958. Absent an intention expressed by Congress

to treat it differently, the 1968 Act must be considered

within the framework of*the 1958 Act. It is clear from.

the cited statement by Congressman Pickle that Congress

intended to apply all that went into the 1958 Act to the

1968 statute.

The next point to be made is that, from NBAA’s study

of the 1958 Act, supra; it is clear that all aspects of flight

through navigable airspace are preempted by Congress.

The graphic exchange between Mr. MacIntyre and

Senator Monroney reported supra amply demonstrates

that all aspects of flight in and around airports are

included.

Even without support from the 1958 Act, it is clear

from the Report on the 1968 Act that there was no

intention to leave authority over aircraft flight in the area

of noise regulation to the States or local governmental -

units. Though it is stated that there is no intention on the

part of Congress to change the apportionment of power

between the State and Federal Government, in order to”

understand what this means, we must unravel exactly

what that apportionment is.

The report tells us what it is. The State and local

governments have authority in the area of land use

planning and in zoning, and that is all. The 1958 Act was

clear on the subject, and no change was intended by the

1968 Act. What can be clearer than the statement by the

Secretary of Transportation, adopted in full by the

reporting committee, to the effect that “state and local

governments. will remain unable to use their police power

to control noise by regulating the flight of aircraft?”

{Emphasis supplied. ]

Curfew which prohibits the take-off of aircraft .

undoubtedly a regulation of the flight of aircraft. We urge

the Court to recall Section 101 (32) of the 1958 Act,

defining flight on aircraft;

An aircraft is considered to be in flight from the _

moment when power is applied for the purpose of .

take-off until the moment when the landing run

ends.

Virtually every operation of an aircraft is considered to

be “flight.” Further, the Act intends to regulate not only

flight, but aircraft operations as well. Operation of

aircraft is defined by 49 USC 101(26): |

‘Operation of aircraft’ or ‘operate aircraft’

means the use of aircraft for the purpose of air

navigation and includes the navigation of aircraft.?

Operation, then includes flight of aircraft. The

Administrator clearly has exclusive jurisdiction over all

aircraft operations on the ground and in flight at the

Holly wood-Burbank airport, and a clear intention to

preempt can be construed as a part of the 1968 Act.

2. Consideration of the 1972 Act.

The Noise Control Act of 1972'° contains, among

other things, an amendment to Section 611 of the

Federal Aviation Act. The change was one of great

moment to the FAA, for it gave FAA a partner in

9FAA has added a Section 91.10 to its regulations, 14 CFR

91.10, to include within the definition of operation of aircraft the

act of taxiing or maneuvering at gates. The new definition was

proposed in NPRM 66-36, 31 F.R. 13352, October 14, 1966, and

was adopted as amendments 1-13 and 91-43 in 32 F.R. 9640, July

4, 1967, after notice and comment.

10P 1 92-574, 92nd Cong. 2nd Sess., October 27, 1972, ___

Stat.

regulating aircraft noise—the Environmental Protection

Agency.'! There was no intention to weaken the Federal

preemption or allow a greater role on the part of State or

local governments with respect to regulation of aircraft

noise.

a. The Preemption Section of the 1972 Act.

The preemption section of the 1972 Act is located in

Section 6(e), but it does not apply to aircraft noise.

Section 6 is discussed in the House Report, and it is

expressly stated, in parentheses, that

The preemption provision discussed in this

paragraph does not apply to aircraft. See discussion

of aircraft noise below. [H. Rep., at p. 8.]

If this preemption in Section 6 applied to aircraft,

Appellants would have some basis for arguing that locally

imposed curfew would be permitted, for the report

specifically states that with respect to non-aircraft noise:

Localities are not preempted from the use of

their well-established powers to engage in cur-

fews....{H. Rep., at p. 9.]

The previous language to this citation removes it,

however, from consideration.

In amending Section 611 of the 1958 Act, the

Committee report states that—

No provision of the bill is intended to alter in

any way the relationship between the authority of

the Federal Government and that of State and local

11H Rep. No. 92-842, accompanying H.R. 11021, 92nd Cong.

2nd Sess., Feb. 19, 1972. The addition of EPA was necessitated to

protect the public interest; and to hurry along FAA activity in

implementing noise control measures. At p. 8.

governments that existed with respect to matters —

covered by Section 611 of the Federal Aviation Act

of 1958 prior to the enactment of the bill. (At -

p. 10.)

- Congress, therefore, did not intend to disturb the

preemption with respect to aircraft noise established by

the 1968 Act, discussed previously. NBAA would have

the Court accept this statement and analysis, and find a

Congressional intention in the 1968 and 1972 Acts to

preempt the field of aircraft noise regulation.

b. Other Aspects of the Legislative History of the 1972 Act.

The 1972 Act was the subject of much debate. Bills

covering the matter were introduced in both houses.!?

The bill finally adopted was the House version,'* being

marginally different from the Senate version. '*

The House bill was reported out of committee on

February 19, 1972, and was passed by the House aftera

short debate on February 29, 1972.'> The Senate bill was

reported out of Committee on September 19, 1972, and

was passed by the Senate on October 13, 1972, but the

House bill was adopted on October 18, 1972.'°

It is interesting to note that the House considered the

subject of Federally imposed curfew, and rejected it.

12Some 11 bills concerning environmental noise were

introduced in the House between March 1, 1972, and July 31,

1972. 7 }

13 R. 11021.

145 3342.

15Cong. Rec., 92 Cong. 2nd Sess., H. 1508, Feb. 29, 1972.

16Cong., Rec., 92 Cong. 2nd Sess., S. 18014, Oct. 13, 1972.

Cong. Rec., 92 Cong. 2nd Sess., S. 18646, Oct. 18, 1972.

Three bills entertaining curfew as a viable answer to the

aircraft noise problem were introduced, H.R. 13919,

H.R. 16110, and H. R. 15500, but were never reported

out of the Committee. On February 29, 1972, the date of

the passage of the House Bill, an amendment to it was .

considered by the House. Congressman Mikva, the author

of one of these bills, suggested the amendment which |

would set up a curfew commission in the area of aircraft

noise pollution. The House considered the amendment,

and rejected it.!7

~The Senate, too, had its rendezvous with curfew. On

October 12, 1972, Senator Muskie, a sponsor and

co-author of S.3342, recommended an amendment

requiring the Environmental Protection Agency to

publish regulations on the issue of aircraft noise. This

amendment was rejected.!8

Senator Muskie then proposed a second amendment

which would permit states and localities to adopt “‘more

stringent controls” in the noise area and the “ability to

enforce them.”!? This amendment was designed to allow

the States and local governments to regulate aircraft noise

through curfew. Senator Muskie stated that he would

not—

'7Cong. Rec., 92nd Cong. 2nd Sess., H. 1534-1536, Feb. 29,

1972.

'8Cong. Rec., 92nd Cong. 2nd Sess., S. 17753-17754 and

S. 17776, Oct. 12, 1972. It cannot be said that Congress did not

entertain the immediate implementation of noise standards by

EPA. Therefore, the argument that Congress has not regulated in

the field and has not considered regulating cannot stand.

19 Ibid. , at S. 17782.

support Federal preemption which protects

product manufacturers and the air transportation

industry... .”

The amendment was rejected.?!

2 ,

Senator Muskie expressed his views on the final

version of S.3342 and H.R. 11021 in a minority

statement accompanying the Senate Report on the 1972

Act. In this statement, Senator Muskie makes it clear that

he considers the field of aircraft noise to be preempted

by Congress.?* He also states that the final version of the

Act would prohibit the localities from enacting

regulations intending a “modification in hours of airport _

use.”?? Thus permission for locally imposed curfew was _

considered by Congress, and rejected. |

The legislative history of the 1972 Act is replete with

statements that lead to the conclusion that Congress has

specifically preempted the area of aircraft noise, and -

therefore has lodged responsibility in FAA and EPA.

b. The regulatory scheme with respect to safety and

noise control is so pervasive that, in itself, it represents

an intention on the part of Congress to preempt the

field.

The Court has recognized that air transportation is

regulated by a comprehensive scheme, and_ such

regulation is necessitated by the nature of the air

transportation industry. See Chicago and Southern

20 Ibid. , at S. 17784.

21 Ibid. , at S. 17785.

22 Minority Report on S. 3342, Report No. 92-1160, 92nd

Cong. 2nd Sess., Sept. 19, 1972, at pp. 22 and 23.

23 [bid. , at p. 25.

Airlines v. Waterman S.S. Co., 33 U.S. 103, 68 S.Ct. 431

(1948).

We had discussed the pervasive Federal regulations in

the area of conflict with respect to safety and with

_fespect to economic controls. In that section brief

mention was made of conflict between noise regulation

by FAA and locally imposed measures. We. will expand

upon that subject in this heading. We will not discuss

regulations issued under the 1972 Act for tnere are none

as yet. We recall, though, that an amendment to the 1972

Act requiring EPA to issue regulations was entertained by

the Senate and rejected.

We have cited two cases that hold if, in a preempted

area, a State or local government is doing more than the

Federal government in the way of regulating, the local

enactment must still fall. See Northern States Power Co.

v, Minnesota, 447 F.2d 1143 (8 Cir. 1971); Charlestown

and W.C_R.R. Co. v. Varnville Furniture Co., 237 U.S.

597, 35 S.Ct. 715 (1915).

Justice Holmes, Writing for the Court, stated:

When Congress has taken the particular subject

matter in hand, coincidence is as ineffective as

opposition, and state law is not to be declared a help

because it attempts to go farther than Congress has

seen fit to go.' Varnville, supra, at pp. 604, 717.

Also see Napier v. Atlantic Coast Line, 272, U.S. 605, 47 S. Ct.

207 (1926).

3. FAA has enacted regulations in the

area of noise control.

In accordance with the mandate provided by the 1968

Act, FAA enacted a new Part to its Regulations, Part 36

(14 CFR Part 36). It was adopted on November 3, 1969,

but published in 34 F.R. 18355, Nov. 18, 1969, effective

December 1, 1969. Its purpose was to provide noise

standards for type certification of subsonic transport

aircraft and subsonic turbojet aircraft of any category.

In addition to Part 36, FAA has undertaken the

imposition of preferential runway systems, and noise

abatement programs tailored to the needs of the

individual airports.2 There cannot be an adoption of a

uniform noise abatement procedures for take-offs and

landings across the United States because of the special

geographical properties of each locality that would

impede such a program.? However, in the interest of

safety of flight,,the procedure adopted, though varied

from airport to airport, must be imposed by a centralized

authority.

Mr. John H. Shaffer, Administrator of FAA, summed

up this position in his testimony to the Aviation

Subcommittee in 1971.

I remind all of us that the first mission of FAA is

the safety of flight. We can reduce noise by redesign

of the machine, the airframe, with the power plant,

combination in the aircraft. We can work with the

communities to consider the “receiver” of the

2Hearings, Subcommittee on Aviation, Senate Commerce

Committee, on S. 1016, 92nd Cong. Ist Sess. Part 2, July 12 and

13, 1971, at p.672. Also see testimony of Roman Lemmer,

Appellees App., p. 316 et seq.

3 Op. Cit., Sen. Hearings, at p. 683.

sound—the people who live nearby. But the changes

we make must not compromise the safety, health

and welfare of those who fly—the pilots—flight

crews, and passengers. Each change, each step, must

be tested. We must ask each time—is this the safe as

well as the right thing to do?* [Emphasis supplied. ]

The FAA’s regulations may not be as extensive as

expected or desired by the City of Burbank, but all the

consequences of the curfew must be considered. Udall v.

FPC, 387 U.S. 428, 87 S.Ct. 1712 (1967). It is suggested

that if the remedies promulgated by FAA to date are not

stringent enough, application be made to FAA for relief.

See Texas and Pacific R. Co. v. Abilene, 204 U.S. 426, 27

S.Ct. 350 (1906).

4. FAA has enacted a comprehensive set of

safety rules that pervade the area.

We need only refer briefly to the fact that FAA has

. totally regulated operational safety in airspace. FAA type

vertificates aircraft, aircraft appliances, aircraft products,

and aircraft parts (14 CFR Part 21 et seg. ). FAA provides

for complete airworthiness standards for all types of

aircraft (14 CFR Parts 23, 25, 27, and 29). It even

provides airworthiness standards for manned free ballons

(14 CFR Part 31).

Airworthiness standards are prescribed for aircraft

engines (14 CFR Part 33); propellers (14 CFR Part Ef

and materials parts, appliances and products (14 CFR

Part 37. Part 37 sets’ forth technical standards for

production of these items).

FAA has a system for inspection and direction of

repairs on all aircraft, engines, propellers, appliances, or

‘Ibid. , at p. 675.

aircraft products (14 CFR Part 39). It prescribes the

methodology for maintenance, preventative maintenance

rebuilding or alteration (14 CFR Part 43), and regulates

identification and registration markings on all aircraft,

engines, propellers, applicances or aircraft products (14

CFR Part 45). Registration of aircraft is covered by 14

CFR Part 47. Recordation of aircraft conveyance and

security documents is regulated in 14 CFR Part 49.

Part 61 of the Regulations, 14 CFR Part 61, is devoted

to a comprehensive scheme of certification of pilots and

flight instruction. Part 63, 14 CFR Part 63, is concerned

with flight crew members other than pilots, while 14

CFR Part 65 is involved with airmen other than flight

crewmembers. Part 67, 14 CFR 67, sets forth a vast

system of medical standards. *

FAA regulates the use of airspace in Parts 71 through

77, 14 CFR Parts 71-77, and includes therein designation

of airways, low area routes, controlled airspace and

reporting points. Jet routes are established, as well as high

area routes. Part 77 regulates objects affecting navigable

airspace, including obstacles in the area of airports.

Air traffic and general operating rules are found in

Parts 91 through 105, 14 CFR Parts 91-105. These parts

contain general operating and flight rules, special air

ffic rules and airport pattern rules, regulations

concerning instrument flying altitudes, standard approach

ocedures, security control of air traffic, rules pertinent

to moored ballons, kites, unmanned rockets and

| unmanned full ballons, transportation of hazardous

\ materials, and parachute jumping.

\\ Air carriers and those operating in air transportation

are controlled by 14 CFR Parts 121-137. Pilot schools are

regulated by 14 CFR 141; ground instructors by 14 CFR

Part 143; repair stations by 14 CFR Part 145; aviation

maintenance technician schools by 14 CFR Part 147; and

parachute lofts by 14 CFR Part 149.

Federal aid to airports and standards thereof are

governed by 14 CFR Part 151. Acquisition of U.S. land

for public airports is covered by 14 CFR Part 153. Other

airport rules are found in 14 CFR Parts 155-159.

By Public Law 91-258, Congress added a new part to

the Federal Aviation Act of 1958, Section 612, 84 Stat.

234. That Section provides for the issuance of airport

operating certificates to those airports serving air carriers

certificated by the CAB, and for the establishment of

minimum safety standards for the operation of

certificated airports. These standards have not yet been

set.

In reporting the bill, H.R. 14465, the House Report

considered airport certification and stated:

The airport is an instrumentality of interstate and

foreign commerce. It is used by the public and the

manner in which it is maintained and operated is

vital to the public safety. It is in the public interest

that the airport be certificated by the Federal

Government as to its adequacy for the safe conduct

of flight operations in the national air transportation

system.* [Emphasis supplied. ]

5H. Rep. 91-601, accompanying H.R. 14465, 91st Cong. 2nd

Sess., October 27, 1969, 2 U.S. Code Cong. & Admin. News,

p. 3058, 1970.

5. The CAB has enacted extensive rules ae

regulating commercial air carriers. tes

‘The Civil Aeronautics Board’s Rules are extensive —

and detailed. With respect to air carrier use of an

airport, 14 CFR 202.3 requires an air carrier to apply

to the Board for authority to use any airport. Section

202.6 (14 CFR 202.6) provides rules with respect to

scheduled stops, and any change in service pattern

must be authorized through application (14 CFR

202.4). Similar rules apply to Foreign Air Carriers (14

CFR Part 203). Inauguration or suspension of service is

required in 14 CFR Part 205. Traffic and routings are

regulated by 14 CFR Part 221.

The aviation industry is completely and thoroughly

regulated from airport-to-airport. The scheme is 9

pervasive that an intention to fully occupy the field

must indeed be presupposed.

¢. The Subject of Aircraft Noise Is Heavily

Involved with Aircraft Safety, and Therefore

Demands an Exclusivity of Federal Regulation

in Order to Achieve Uniformity Vital to the

National Interest.

It has been stated that even where there is no Federal

legislation, in cases where the National interest requires

uniformity, Congress occupies the field under the

Commerce Clause of the Constitution, Kelly »,

Washington, 302 U.S. 1, 58 S.Ct. 87 (1937). We have

here Congressional enactments, and the regulations of

two agencies vitally important to the air transportation

industry. The need for uniformity in noise-safety

regulation has been expressed many times over in this

document and by commentators upon the several statutes

involved.

The question in applying the uniformity test is—

—

Whether the State interest is outweighed by a

National interest in the unhampered operation of

interstate commerce. California v. Zook, 336 U.S.

725, 69 S.Ct. 841 (1949), at p. 728, 843.

The danger of unharmonious systems that will be

destructive of a Federal scheme are spelled out in

Southern Pac. Co. v. Arizona, 325 U.S. 761, 65 S.Ct.

1515 (1945), as well as Udall v. FPC, supra.

In Southern Pacific, supra, National uniformity was

required in the length of trains passing from State to

State. Arizona wanted to, and did by statute, limit the

length of trains passing through that State in the interest

of safety. The Court, in examining that statute passed as

a police power measure, considered the cost of

complying, delays in deleting and then adding cars, needs

for additional manpower, equipment, inconvenience to

travellers, and delays in mail and freight, and concluded

that the statute would disrupt a requisite National

uniformity.

We have much the same circumstances here. We have

considered Southern Pacific above from the point of

conflict, but it is as applicable from the point of view of

required uniformity. Just as a local statute requiring

trains to be shorter than they normally are would cause

delays, so would the Burbank type of ordinance. The

Burbank type of ordinance would disrupt cargo

shipment, the mails, and would cause inconvenience. If

curfew were permitted by anyone other than a

centralized authority, safety would be disrupted. More

equipment would be required. Pilots who can fly only so

many hours without rest® would not be able to take out

a diverted flight the next day after meeting with curfew.

°14 CFR §121.471 et seq.

This would necessitate an expansion in staff on the part

of air carriers. Maintenance schedules would be disrupted,

and traffic would be severely hampered and disrupted,

The same reasons for striking down the Arizona statute

exist with respect to the Burbank Ordinance.

When Congress decides uniformity is necessary, State

laws must not be allowed to interfere, Hines y,

Davidowitz, supra. It appears to NBAA, based upon its

evaluation of the Federal Aviation Act of 1958, the 1968

amendment adding Section 611, and the 1972 Act

amending Section 611, that the Federal Government

indeed has required uniformity.

d. The Burbank Ordinance Stands as an Obstacle

to the Accomplishment and Execution of the

Full Purposes and Objectives of Congress.

The analysis submitted to this point clearly demon-

strates that the Federal Government has expressly

preempted the field of aircraft safety regulation. It has

been established that the Burbank Ordinance, and those

that will follow it, are disruptive of a fragile though

comprehensive scheme of air traffic regulations that

requires unformity and harmony in its maintenance. The

noise legislation discussed and its history show at least an

implied intention to preempt. Summing it up, this Court

must conclude that the Burbank Ordinance stands as an

obstacle to the full implementation of a carefully

conceived Federal program.

POINT I

THE ORDINANCE OF THE CITY OF BURBANK

AND SIMILAR CURFEWS CURTAILING OPER-

ATIONS AT AIRPORTS CONSTITUTE A REGULA-

TION OF INTERSTATE COMMERCE THAT IS

NEITHER INDIRECT NOR OF INCIDENTAL

BURDEN THEREUPON.

The regulation of airspace is clearly based upon

Congressional authority to regulate interstate commerce

under the Commerce Clause, U.S. Constitution, Art. I,

Section 8, Clause 3. All aviation utilizing navigable

airspace is therefore in interstate commerce.’ NBAA,

however, will direct its attention not to the Sunday or

pleasure fliers, but to the Nation’s air carriers and its

own membership.

A. The Air Transport Industry.

In 1970, it was found by Congress that—

The air transport industry provides a significant

contribution to the Nation’s economy. Operating

revenues of the scheduled carriers in 1968 amounted

to over $7.75 billion. This was more than double to

$3.76 billion generated on 5 years earlier. Total

assets of the industry increased from $4.1 to $11

billion during the same period.

In terms of employment, the scheduled airline

industry directly provided over 300,000 jobs at the

end of 1968, a two-thirds increase over the

employment level of 1963.

‘Hearings on §S.3880, Subcommittee on Aviation, Senate

Interstate and Foreign Commerce Committee 85th Cong. 2nd

Sess., May and June 1958, p. 333.

The vital and growing role of air carriers in the —

Nation’s Commerce is apparent from the 72.5 per —

cent of intercity common carrier passenger miles in

1968 which were travelled by air. This compares.

with only 39.3 percent some 10 years earlier. The

predominance of air [travel] [sic] in overseas travel]

has grown to the point wherein 1968 more than

nine out of every 10 overseas travellers chose air.”

ATA Vice President Clifton Von Kann testified at the

trial below.* He indicated that in 1969, the Nation’s air

carriers transported 150,000,000 passengers utilizing

2400 aircraft, about 1900 of which were jets. He further

indicated that 4.7 billion cargo-ton miles were flown.

Movement of passengers involves interstate commerce, in

and of itself, Edwards v. California, 314 U.S. 160, 62

S.Ct. 164 (1941).

B. Business Aviation.

In NBAA’s statement on the “interest of the Amicus”,

some facts were presented concerning the role of business

aviation in air transportation. Those remarks are

incorporated herein without repeating them. We would

just add that business aviation is not only in interstate

commerce because business aircraft utilize the airways.

Business aviation is in interstate commerce because the

aircraft of businesses are transporting officers and

employees of these corporations which are heavily

engaged in interstate commerce.

2H. Rep. No. 91-601, 91st Cong. 2nd Sess., Oct. 27, 1969, 2

U.S. Code Cong. and Ad. News 3047 (1970), at 3052.

3 Appelles App., 246 et seq.

4 Ibid. , at pp. 248, 249, 250.

When the Federal Aviation Act of 1958 was Originally

considered, NBAA participated.S Mr. W.K. Lawton

testified that at that time there were about 26,000

business aircraft, 2,500 of which were multi-engined

aircraft. Business aviation users were ahead of the airlines

in operating jet aircraft. The growth of business aviation

has been tremendous, and has been recognized by FAA.

C. Pacific-Southwest Airlines Is Operating

In Interstate Commerce.

Appellants have taken the position and made much

ado about the fact that only corporate jet operations and

one intrastate flight of PSA are affected by the Burbank

Ordinance. We have pointed out that the corporate

operations are involved in interstate commerce. It is

further submitted that PSA is in interstate commerce.

The CAB does not regulate PSA because its operations

do not extend beyond the State of California. This means

that PSA is not regulated by CAB. It does not mean that

PSA is not in interstate commerce. PSA’s employees fall

under the Railway Labor Act. The airline utilizes airways

regulated by FAA. The airline is operated under Part 12]

of the Federal Aviation Regulations. Its pilot employees

are certified by FAA. Its aircraft will be regulated by Part

36, 14 CFR Parts 121, 61, 67 and 36. The mere fact that

PSA operates intrastate is not dispositive of whether or

not it is interstate commerce. Cloverleaf Butter Co. y.

Patterson, 315 U.S. 148, 62 S.Ct. 49] (1942).

*See statement of W. K. Lawton, Executive Director, NBAA,

Hearings on S. 3880, Aviation Subcommittee, 85th Cong. 2nd

Sess., May and June, 1958, at p. 301 ef seq.

*Ibid., at pp. 302, 308 and 316.

D. Operations at the Hollywood-Burbank Airport,

The Hollywood-Burbank airport handled 1,178,009

passengers in 1969.” PSA airport operates flights into and

out of the airport, as well as Air West, Continental,

United, and Western Airlines. These airlines are

certificated by the CAB. Air West and Continental utilize

the airport directly, as does PSA, while United and

Western are designated to utilize the airport as an

alternate to Los Angeles International Airport.® It was

estimated the Hollywood Burbank airport was used as an

alternate for 140 flights, or about 470 hours of such

use.? '

Continental Airlines is certified by the Civil Aero-

nautics Board to operate into and out of the airport,

utilizing Boeing 727-200 aircraft.. Many of the flights

conducted are interstate in nature,'° between Burbank

and Portland, and Seattle.!! No testimony was presented

by Air West, United or Western.

The corporate jet operations at the airport were

estimated at 275 each month, with 60 or so taking place

at night.!?

7 Appellees App., p. 142.

8Tbid. , pp. 148-150.

9Ibid., pp. 150-151.

10 Tid, , pp. 205-206.

!1 [hid, , p. 207.

12 Ibid. , p. 149.

E. Effect of Burbank Curfew.

It was stated at the trial below that the Burbank

curfew would immediately affect one flight of PSA which

departed Hollywood-Burbank Airport for San Diego at

11:30 P.M. This flight averages 125 passengers out of

Burbank, 80-85 originating there. Most of these

passengers are military personnel.'? The curfew would

require the incoming aircraft to land not at Hollywood-.,

Burbank, but at Los Angeles. Passengers incoming to

Burbank would have to be bussed to Burbank. Those

going to San Diego from Burbank would have to be

bussed to Los Angeles.'* PSA would suffer in the area of

maintenance as well, as the aircraft would be needed at

San Diego for maintenance. The delay caused by PSA

going to Los Angeles because of the Burbank situation

would be destructive of this end. The total loss to PSA in

complying with the curfew would. be in the area of

$6,500 a trip."5 PSA would have to change 9 or 10

departure times to comply with the Burbank Ordi-

nance.'®

Continental would be restricted from operating an

intended Southbound flight from Seattle at 8:00 P.M.

Los Angeles Airport could not be used, as Continental’s

CAB authorization does not authorize a Seattle-Los

Angeles route.'7 None of Continental’s present flights

would be affected.

'3 [hid., pp. 75-75.

'4 Ibid., p. 77.

'5 Ibid., pp. 77-81.

'6Ihid,, p. 96.

'1 [bid,, Tr. 213.

(ns ahd

oy DAN See

cane $4 a

ral

F. Effect of Implementation of Similar Curfews

at Other Airports, Nationwide.

Mr. James L. Mitchell, testifying on behalf of

Continental, estimated that a curfew similar to the

Burbank curfew in Portland alone would cause the

cancellation of its Northbound flights to Portland of

Seattle out of Burbank or Ontario, California, after 7:09

P.M.'® A nationwide curfew between 11:00 P.M. and

7:00 A.M. would cause the cancellation of 48 of

Continental’s departures.'? It would be disruptive of

maintenance and result in considerable economic

penalty.”° Mail and freight is mostly carried at night,

departures occurring between 10:00 and 11:00 P.M."

was estimated that such a curfew would prevent

Continental from adequately serving its passengers,

carrying mail in accordance with its postal contracts, and

would be disruptive of its cdf~o service. Continental

would have to cancel 15% of its aircraft miles flown or

30,000 miles a day, or 28 flights a day cancelled. 14.9%

of the cargo flights wouls be lost.2? Net operating cost

would increase 25% due to loss of night flying capacity,

need for six new aircraft at a cost of 5-7 million dollars

each and loss of revenues.”

Clifton Von Kann, of ATA, estimated that the rate of

return on equity investment for the airlines in 1969-1970

was less than 1%, and that nationwide curfew would be

18 Tid. , p. 215.

19 Ibid. , p. 217. :

20/bid., pp. 219-220,(230.

2! Ibid. , p. 218.

22 Tbid., pp. 231-235.

23 Ibid. , p. 235.

considered financially catastrophic by the airline

industry.2* Congestion alone, without curfew, would cost

the airlines about $1,500,000 in 1970.7 National curfew

ordinance would result in the cancellation of an

estimated 1009 flights, and would have a major effect on

the carriage of cargo and mail, as half the mail would be

delayed. Scheduling changes from the cancellations

would involve massive disruption.”

James T. Pyle, a former Administrator of CAA, and

Deputy Administrator of FAA, testified that in 1966, his

group known as the Aviation Development Council at

LaGuardia Airport considered curfew. from 12:00

Mid-night to 7:00 A.M. in 1966. This sort of curfew was

abandoned, for it would constitute an “‘untenable burden

on air commerce.”’?® It was estimated, as a result of Mr.

Pyles’ 1966 study on curfew, that 1107 weekly services

would be cancelled, and 1370 odd operations would be

discontinued, for a total elimination of 2474 operations

each week.?? Of these operations 607 were all-cargo.

G. The District Court’s Findings.

The Court below found that curfew ordinances similar

by virtually all cities surrounding airports.” It was upon

this assumption that the Court concluded that the curfew

24 Ibid. , pp. 251-252.

25 Ibid. , p. 253.

26 Ibid. , p. 266.

27 Ibid , pp. 259-266.

28 Ibid. , pp.283-284.

29 Ibid. , p. 286.

in question as an unconstitutional burden on interstate

commerce. The 9th Circuit did not reach this question. ;

The Court below has been criticized for io

upon the adoption of curfew by other cities. The

assumption, though, is reasonable. Curfew has pre.

enacted by a judge in New Jersey,' a court in

and recently, by another New Jersey Court.* A A ee

asking for a curfew at White Plains, Westchester County

Airport has been threatened by the Town of Greenwich,

Connecticut.*

The natural consequences of supporting the Burbank

Ordinance is an appropriate consideration for the Court.

Udall v. FPC, supra; Northern States Power Co. y,

Minesota, supra.

In Northern States, supra, Chief Justice Matthis

opined that—

Were the States allowed to impose stricter

standards on the level of radioactive waste released

they might conceivably be so over-protective in the

area of health and safety as to unnecessarily stultify

the industrial development and use of atomic energy

for the production of electric power.

Just as Justice Matthas engaged in carrying the matter

before him to its logical conclusion, so did the Court

below. The Court’s foresight should be the subject of

commendation, not criticism.

' Township of Hanover v. Town of Morristown, 108 New Jersey

Super. 461, 261 A.2d 692 (1969).

2 Williams v. Superior Court of Arizona, P.2d (1972).

3 Parachutes, Inc. v. Lakewood, __N.J. Super. __, __A2d

___, (1972), 12 Avi. Law Reports 17,623. |

“News Week, June 15, 1972, at p. 82.

H. The Case Law Tests.

A State law may not be struck down merely because it

affects interstate commerce in some way. Head v. New

Mexico Board of Examiners, 374 U.S. 424, 83 S.Ct. 1759

(1963); Huron Portland Cement v. Detroit, supra. But

“no State may completely exclude Federally licensed

commerce....” Florida Lime and Avocado Growers,

supra, at p. 142, 1217; Huron, supra. States may regulate

those subjects which, because of their number or

diversity, may never be adequately dealt with by

Congress, but—

... [E]ver since Gibbons v. Ogden [citation

omitted], the States have not been deemed to have

authority to impede substantially the free flow of

commerce from State to State, or to regulate those

phases of national commerce which, because of the

need of national uniformity demand that their

regulation, if any, be prescribed by a single

authority. Southern Pacific Co. v. Arizona, supra, at

p. 767, 1519.

State statutes which bring to bear a burden on

interstate commerce have been held to violate the

Commerce Clause. Minnesota Rate Cases, 230 U.S. Joa,

33 S.Ct. 729 (1913); Mississippi R. Commission vy. Illinois

Central R. Co., 203 U.S. 335, 27 S.Ct. 90 (1906).5

‘In the /Wlinois Central case, supra, a State regulation requiring

interstate passenger trains to stop at a specific town, at a specific

time, although otherwise served, was held to be violative of the

Commerce Clause. If the Commission could order stoppage at this

town, the Court opined that it could order other stoppages, and

this would be disruptive of interstate commerce. Also see Seaboard

Air Line R. Co. v. Blackwell, 244 U.S. 310, 37 S.Ct. 640 (1917),

where a State statute ordering trains to slacken speed within 400

yards of each railway crossing in the State of Georgia was held to

be a burden on interstate commerce.

A State may provide for the health, safety and mora

of local concern, although interstate commerce may be

incidentally or indirectly involved. Minnesota Rate

supra; Louisville and Nashville R. Co. v. Kentucky, 183

U.S. 503, 22 S.Ct. 95 (1901); Savage v. Jones, 225 US.

$01, 32 S.Ct. 715 (1912); Lakeshore and M.S.R. Co, »,

Ohio, 173 U.S. 285, 19 S.Ct. 465 (1899).°®

The test developed by this recitation is that the States

may impinge, under their police power, upon interstate

commerce, if the enactment does not disturb a required

national uniformity, disrupt free passage in navigable

waterways, exclude federally licensed activity, substan-

tially impede or directly burden the free flow of

interstate commerce, directly conflict with an act of

Congress, or invade a Federally preempted area.

NBAA has demonstrated that the Burbank Ordinance

is acting in a preempted area, in direct conflict with

Federal enactments.

It has also been shown that the area of aircraft safety

and aircraft noise control require uniform action at the

Federal level.

These factors aside, it is also true that the Ordinance

directly and substantially burdens interstate commerce.

The Burbank curfew, applied in Burbank alone,

materially effects the operation of corporate operators at

®An Ohio statute required at least three passenger trains

belonging to one company, passing through the State, to stop at

each city or town of 3,000 people or more. The Court held that

there was no violation of the Commerce Clause, as no trains were

required to tum aside from its direct route. The Burbank

Ordinance would cause a considerable amount of “turning aside”

of through flights if the case were to turn on the Burbank curfew

alone. If applied nationally, 1009 operations would be “turned”

from their direct route by way of out-and-out cancellation.

p. 75

the Airport. PSA, involved heavily in interstate

commerce, is interfered with to the extent of $6500

weekly, and is prohibited from instituting any flights

after 11:00 P.M. or before 7:00 A.M. Continental

Airlines, an interstate carrier, may not institute interstate

through flights originating in cities it is licensed to serve

so that they will arrive in Burbank after 10:00 P.M. The

same is true for Air West. Airlines permitted to utilize the

Hollywood-Burbank Airport as a reliever airport may not

do so for through flights after 11:00 P.M. or before 7:00

AM.

Applying the curfew across the nation, carriage of mail

will be disrupted, affecting interstate commerce on a

grand scale. Cargo operations will be disrupted, massive

losses will accrue to the airlines because of as many as

1009 flight cancellations. The safety of the flying public

will be endangered. The Ordinance and impending curfew

by other localities certainly would not have a merely

incidental or indirect impact on interstate commerce..

They would be entirely disruptive of it.

In our search, we could uncover only one case dealing

with the Commerce Clause that permitted a disruption in

interstate commerce by a State statute enacting

legislation effectuating noise control. .We refer to

Hennington v. Georgia, 163 U.S. 299, 16 S.Ct. 1086

(1896). Even though the case is quite old, it should be

discussed and distinguished. NBAA asks that the case be

directly overruled, as its holding applies to interstate

commerce.

In Hennington, supra, freight trains passing through

the State of Georgia were prohibited from operating on

Sunday due to a disruption of the Sabbath peace. The

dissent in the case pointed out that the Court’s holding

established the right of the State to interfere with

interstate commerce on a weekly basis.

We have traced citations to the Hennington case, sy

to determine whether it in fact represents the law with

respect to the instant case. We have determined that#

does not. ES:

The case is last cited in 1961 as a Sunday Blue Lis

case and has not been cited since. McGowan v. Maryland,

366 U.S. 420, 81 S.Ct. 1101 (1961), separate opinion,

366 U.S. 420, 81 S.Ct. 1153, and dissenting opinion, 366

U.S. 520, 81 S.Ct. 1218. It is cited in Huron, supra, for

its test of burden: on interstate commerce, which is the

accepted test developed above. In Southern Pac. Co, y,

Arizona, supra, it is cited in the dissent for some of its

language and not its holding. See 325 U.S. 780, at p. 785,

Hennington is cited in Baldwin v. G.A.F. Seeling, Inc.,

294 U.S. 511, 55 S.Ct. 497 (1935), at p. 525, 501, for

the proposition that a State may protect its residents

against unnecessary noise. The case, though, adopts the

direct burden on interstate commerce test. Hennington

was held not to be a direct burden case. That is surely not

the case here. In addition, while aircraft noise is

unpleasant, it cannot be equated with noise in the area of

a hospital, or a jackhammer’s noise. Closing a street to

traffic near a hospital or shutting down a plant for certain

hours does not affect safety. Furthermore, it is clear from

Hennington, supra, that the case is not a noise case, but

rather the validation of a State’s right to preserve and

protect the Sabbath. The Court in Hennington further

found that there was no Congressional legislation on the

subject of regulation of freight trains. Our references to

legislation, Congressional intention in both the noise and

safety area, and pervasive regulation must surely

distinguish the Baldwin, supra, reference to Hennington.

Hennington is considered as a case dealing with

incidental burden on commerce in Louisiana v. Texas,

176 U.S. 1, 20 S.Ct. 251 (1900), at p. 24, 259, and asa

‘ Blue Law case in Petit v. Minnesota, 177 U.S. 164, 20

§.Ct. 666 (1900).

Erie Railroad v. Purdy, 185 U.S. 148, 22 S.Ct. 605

(1902), considered it an intrastate regulation case. In

Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92 (1902), it is

cited for the proposition that State regulation conflicting

with Federal enactments will cease to have any effect.

Hennington is a police power case according to Chicago,

B&QR. Co. »v. Illinois, 200 U.S. 561, 26 S.Ct. 341

(1905). In Howard y. Illinois C.R. Co., 207 U.S. 463, 28

§.Ct. 141 (1907), Hennington is cited as a supremacy

case. It is a police power case that incidentally affected

interstate commerce in New York N.H. R. Co. v. N.Y.,

165 U.S. 628, 17 S.Ct. 418 (1897), and a supremacy case

in Gladson v. Minnesota, 166 U.S. 427 (1897).

In Savage v. Jones, supra, Hennington is considered to

be a case that only incidentally affected interstate

commerce, for it did not conflict with Federal legislation,

as it was in Standard Stock Food Company v. Wright,

225 U.S. 540, 32 S.Ct. 784 (1911). In Barrett v. N_Y.,

232 U.S. 14, 34 S.Ct. 203 (1914), it is cited, and it is

stated that—

exertion of the power essential to assure needed

protection to the community may extend inci-

dentally to the operations of a carrier in its

interstate business, provided it does not subject that

business to unreasonable demands and is not

opposed to Federal legislation. At p. 31. [Emphasis

supplied. ]

Hennington is cited in Atlantic Coast Line R. Coy

Georgia, 234 U.S. 280, 34 S.Ct. 829 (1914), wherein #%

indicated that State statutes that conflict with presug

will of Congress “must be required to give way to thy

supreme authority of the Constitution,” at p.292.

We find Hennington again in Southern Pacific Co, ».

Jensen, 244 U.S. 205, 37 S.Ct. 524 (1917), at p. 245,

wherein it is declared that State statutes not conflicting

with acts of Congress, and only incidentally burdening

commerce, may stand. It is distinguished in Robertson y.

California, 328 U.S. 440, 66 S.Ct. 1160 (1946), andis

cited in Sampson v. Shepard, 230 U.S. 352, 33 S.Ct. 729

(1912), as a case which stands for the proposition that

local regulation, incidentally affecting commerce, and not

in confi... with Federal regulation, may stand.

The case may be found in numerous lower court

decisions, demonstrating the range developed above.’

One such decision, Crown Kosher Super Market of Mass,

Inc. v. Gallagher, 176 F: Supp. 466 (D.C. Mass. 1959),

notes that—

this is a pretty old case, which was decided before

the modern development of limitations upon powers

of the states implicit in the fourteenth amendment.

At p. 477.

From the listing above, it emerges as clear that

Hennington is an old case, decided not only before

7Gonzales v. Porto Rico, 51 F.2d 61 (1 Cir. 1931); Wrigley

Pharmaceutical Co. v. Cameion, 16 F.2d 290 (DC MD Pa. 1926),

Zayre of Georgia, Inc., v. Marietta, 416 F.2d 251 (5 Cir. 1969),

dissent at p.255; Two-Guys From Harrison v. McGinley, \19

F. Supp. 944 (DC ED Pa. 1959); Cobb v. Dept. of Public Works, 60

F.2d 631 (DC Wash. 1932); Town of Green River v. Fuller Brush

Co., 65 F.2d 112 (10 Cir. 1933).

modern developments, but at a time when Congress had

not yet fully invaded the field of regulating rail

transportation. Despite that, the case is wrong-headed. It

is inconceivable that today it would be decided the same

way. To halt all rail traffic through a state on a given day

of the week runs contrary to dozens of later court

opinions. If a state cannot slow down trains passing

through the state, Seaboard Air Line R. Co., supra;

require it to stop at designated towns, JIlinois Central,

supra; or regulate the length of trains, Southern Pac. Co.,

supra; how can a State halt all transportation by rail

through it for an hour, much less a day. It is submitted

that Hennington, a case of another day and age, ignored

by this court since 1961, be relegated to its consigned

place in history, undisturbed by further arousal.

It must be found that the Burbank Ordinance clearly

imposes an intolerable burden on interstate commerce for

the reasons contained in this point. This conclusion is

unescapable.

CONCLUSION

NBAA asks of the Burbank Ordinance: “Is it safe, as

well as the right thing to do?”’® We urge the Court to

allow the authorities best suited to answer this question

to provide the answer. Congress has empowered FAA and

EPA to regulate aircraft noise. We urge that the two

*Hearings, Subcommittee on Aviation, 92nd Congress Ist

Sess., Part 2 July 12 and 13, 1972, remarks of John H. Shaffer,

Administrator, FAA, at p. 675.

Courts below be affirmed in each and every

their decisions. Bd

Respectfully submitted,

NATIONAL BUSINESS

AIRCRAFT ASSOCIATION

By: Robert D. Powell

Attorney for NBAA

POWELL & BECKER

1156 Fifteenth Street, N.W.

Suite 516 ;

Washington, D.C. 20005

202/872-0190

APPENDIX

Exhibit 1

[Filed May 17, 1971]

Applicants for Intervention

—_—_—_—

TOWNSHIP OF HANOVER, etc.,et al., : SUPERIOR COURT OF

gs NEW JERSEY CHANC-

Plaintiffs, : ERY DIVISION-MORRIS

v. _ COUNTY

TOWN OF MORRISTOWN, etc., et al.,

or Defendants, * Docket No. C-3172-68

THE NATIONAL BUSINESS AIRCRAFT ‘

ASSOCIATION, INC., etc., et al., ‘ AFFIDAVIT OF

i NCE P. BE

Applicants for Intervention. ; “A¥** BEDORE

DISTRICT OF COLUMBIA ae

CITY OF WASHINGTON ) *

I], LAWRENCE P. BEDORE, being duly sworn

according to law, upon my oath do depose and say:

1. Iam employed by The National Business Aircraft

Association, Inc. as its Manager of Airport Services. I am

authorized to make this affidavit on its behalf.

2. The National Business Aircraft Association, Inc.

(hereinafter ““NBAA’’), which was incorporated under the

laws of the State of New York in 1947, has, except for a

registered agent in New York, its only o fice ty

Washington, D.C. at 425 13th Street. It exists to pre

and promote the business aviation interests of the &

member companies located throughout the United §

and to assure the highest standards of safety e

efficiency in the aviation operations of its memben

‘--NBAA member companies operate some 2300 airc, tis

including more than 600 jet aircraft, for

purposes. (Directory as Exhibit 1). ee

3. Virtually all non-military, non-commercial je

aircraft in the United States are business aircraft ows

by corporations, most of which are members of the

NBAA. To the best of my knowledge, the jets that tse

Morristown Municipal Airport, whether as a fixed base or

as transients, are owned by members of the NBAA. _~

4. NBAA was authorized by its Board of Directors to

seek intervention in this action. Our intervention w

encouraged by many other national organizations and

associations who are concerned with the outcome of the

case but are not as vitally interested as the NBAA. (See

paragraph 17, below).

5. Business aircraft tie Main Street America to the

entire world of commerce. While the scheduled air

carriers serve 515 airports in the 48 conterminous states,

business aircraft can and do use thousands of the nation’s

more than 11,000 airports. As business decentralizes,

thereby helping to revitalize the rural areas of the nation,

the business aircraft become an even more essential mode

of national transportation.

6. Business aircraft are tools of management which

provide top executives with frequent face to fac

personal contacts and an increased organizational span of

control. These aircraft provide flexible national trans

portation to busy executives and frequently make five or

more business stops in a single day.

7, Business aircraft allow management to go when and

where they need to keep pace with the continuing growth

and geographical dispersion of successful business

operations. The privacy and on-board facilities provided

on most business aircraft allow conduct of business and

preparation of documents while flying between inter-

mediate points.

8. A user survey made in 1966 by Arthur D. Little,

Inc., engineering consultants of Cambridge, Massachu-

setts, for Lockheed-Georgia, a manufacturer of business

aircraft, showed that company aircraft were used mainly

for executive and staff travel, because relatively few

skilled managers are available to any one company to

make top decisions and, in terms of responsibility and

geography, their span of control must cover large areas of

the organizational structure.

9, NBAA member companies place great importance

on safety and reliability in their aircraft operations. All

corporate aviation departments have established rules for

safety which comply with and in many instances exceed

the rigid requirements set by the Federal Aviation

Administration (hereinafter “FAA”’), the federal regula-

tory body charged by statute to govern the safe and

efficient use of the national airways. Pilots of NBAA

members have amassed more than one billion miles of

safe flying. This is an enviable record which is annually

increasing in mileage and in the degree of increased

safety.

10. Pilots and crew members of business aircraft bear

a heavy burden of responsibility. Consequently, only well

- qualified pilots are selected and employed as pilots for

these aircraft. These full-time pilots of NBAA member

possess outstanding qualifications and technical com.

petence to safely and efficiently operate the mog

complex, sophisticated aircraft and their related equip-

ment. A recent survey, taken from membership dat,

cards, of the types of FAA certificates held by 3)

NBAA member Chief Pilots showed the following:

Type of FAA Certificate Pilot Possessing % of Total

Certificate mo

Airline Transport Pilot 450 54%

Commercial Instrument Pilot 217 . 26%

Instructor Pilot 126 15%

Commercial Pilot _38 5%

TOTAL 831 100%

The same survey showed the following on 1856 pilots,

other than Chief Pilots, for NBAA member companies:

Type of FAA Certificate Pilot Possessing % of Total

Certificate

Airline Transport Pilot 911 49%

Commercial Instrument Pilot 554 30%

Instructor Pilot 150 8%

Commercial Pilot 241 13%

TOTAL 1856 100%

11. The Airline Transport Pilot Certificate requires the

most rigid pilot qualifications as outlined by the Federal

Air Regulations of the FAA. Pilots in command of aif

carrier aircraft are required by the FAA to possess this

certificate. The competence and professionalism of

NBAA member pilots is numerically shown by the fact

that 54% of the Chief Pilots and 49% of the regular line

pilots possess this coveted certificate.

12. The qualifications of the pilots of NBAA members

based at Morristown Municipal Airport (hereinafter

“MMU”) surpass those reported in the all member survey

mentioned in paragraph 10. Of the 14 pilots of NBAA

members based at MMU, 12 possess the Airline Transport

Pilot Certificate and the remaining two possess the

Commercial Instrument Pilot Certificate. In addition,

these 14 pilots have amassed more than 30,000 jet flying

hours, much of which was flown in the high aeronautical

density areas of our nation and, in the case of some of

these pilots, around the globe.

13. NBAA members place great importance on

maintaining the proficiency of their pilots and other crew

members. ‘Most of the NBAA members require

continuous pilot training programs and much of this

training is accomplished by outside professional organi-

zations, such as the renowned Flight Safety, Inc., Marine

Air Terminal, La Guardia Airport, New York. All are

required to comply with the FAA Regulations.

14. NBAA first became aware of the Hanover vy.

Morristown litigation, to the best of my knowledge, on

March 11, 1970, following a telephone conversation

initiated by Edward F. Broderick, attorney for

defendant, to Robert B. Ward, then Executive Vice

President of NBAA. The conversation was reported to me

as being one of broad generalities and Mr. Ward

responded the next day with a letter, three copies of the

NBAA Noise Abatement Program and one copy of AIAA

(American Institute Aeronautics & Astronautics) Paper

No. 69-1123 (Exhibits 2 and 3, respectively ).

15. On March 11, 1970, NBAA sent out to all its

members a reissuance of its jet noise abatement

procedures in a form to be included in the pilot's

“Jeppesen” flight kit. This was also sent to airport.

manager members of the American Association of

Airport Executives and the Airport Operators Council

International, two organizations of airport managers. The

reissuance was motivated by the desire of NBAA and its

members to be “good neighbors” with the communities

surrounding airports.

16. In the Spring and Summer of 1970, the NBAA

undertook to study the noise abatement problems at

Morristown Airport, and I personally made several visits

to the Airport. The NBAA developed noise abatement

procedures including a “minimum sound track” for

Morristown, and after final approval by the FAA, the

NBAA had it widely circulated (a copy of the procedures

and the minimum sound track is attached hereto as

Exhibit 4) in August, 1970.

17. The NBAA also met on many occasions with and

studied the problems with other interested groups such as

the FAA, the Air Transport Association of America,.the

Port of New York Authority, the Morristown Airport

management, and various national organizations con-

cerned with aviation operations.

18. The NBAA cooperated closely with the FAA in

the development of the FAA Tower Bulletin which sets

forth the official preferential runway system (attached

hereto as Exhibit 5). The NBAA also cooperated with the

Morristown Airport in the development of Rules and

Regulations for tenants to abate noise (attached hereto as

Exhibit 6).

19. During the period January 1, 1969 through March

23, 1970, three NBAA members operating five jet aircraft

based at MMU conducted a total of 1406 operations (702

take-offs and 704 landings) at MMU, which was less than

1% of all operations at MMU. This amounts to an average

of slightly more than 3 (3.179) landings or take-offs per

day. Of the 702 take-offs, 148 occurred before 7 A.M.

and 6 occurred after 9 P.M. Of the 704 landings, 16

occurred before 7 A.M. and 96 occurred after 9 P.M. A

total of 266 operations (154 take-offs and 112 landings)

would have been affected had the operational limitations

of the Court Order been in effect during this period.

These 266 operations amount to approximately 19

percent (18.918%) of total operations at MMU of these

three NBAA members during this nearly 15 month

period.

20. Sample surveys of the effects of the operational

limitation of the Order have been taken from NBAA

members at MMU. For the period March 24, 1970

through August 17, 1970, the logs of three jet aircraft

based at MMU show that on 35 different occasions these

aircraft were forced to land at another airport instead of

MMU, remain overnight and return the aircraft to MMU

on the following day because of the operational

limitations. In effect, this meant that 70 additional

landings and takeoffs were made in the high density New

York area while not reducing the number of operations at

MMU. On 11 other occasions these three aircraft had to

relocate the day before at another New York area airport

so that they could perform scheduled departures during

the Court limited hours at MMU.

21. A report from another NBAA member operating

one jet aircraft which is based at MMU showed the

following for a five-month period from March 23, 1970

to August 30, 1970. On four occasions it was necessan

to reposition the aircraft at Teterboro on Saturday. "

accomplish scheduled Sunday departures. On three of othe:

occasions it was necessary to depart MMU on Sun:

between 1 and 3 P.M. non-restricted operational hour

and relocate the aircraft at another New York

airport to meet early flight departures on

momings. And on three other occasions the aircraft

arrived in the MMU area after 9 P.M., had to land a

Teterboro or Newark, leave the aircraft there overnight,

and return the aircraft to MMU the following morning.

Again, all of the above resulted in no reduction in

operations at MMU, but in additional landings and

take-offs in the New York high density area.

22. The imposition of operational limitations by ie

Court, such as the one presently in effect at MMU,

reduces the flexibility and efficiency of business aircraft

operations which serve an essential purpose for the

economy of the Country. NBAA member aircraft based

at MMU fly to many points in the nation as well as to

many points on the North and South American

‘continents. The reduction of operating hours at the home

base of these jet aircraft, not only imposes incon-

veniences, increases the expenses of the company owning

the aircraft, and negates the many advantages of owning

business aircraft, but it also restricts their use in interstate

commerce. In addition, the diversion of some NBAA

member aircraft from MMU has adversely effected the

operations of other NBAA members at neighboring

airports.

23. The NBAA and its members depend on the FAA

to provide a uniform, safe and efficient management of

the national airspace. If the FAA’s management of the

airspace does not remain exclusive, it will adversely affect

the operations of all users of the airspace and thereby

those who depend on air transportation.

24. At least one NBAA member company’s aircraft

has been based at the Morristown Municipal Airport since

1951. Presently there are five NBAA members based at

Morristown and one company which controls another

NBAA member company has recently moved its Fanjet

Falcon to the Morristown airport. These companies are

presently operating eight jet aircraft. Approximately

$400,000 has been invested by one of NBAA members in

fixed assets on the airport premises and further

investment is anticipated depending upon the status of

the present jet aircraft operational restrictions.

25. The five NBAA members at Morristown employ a

total of 14 pilots and 15 other personnel (Administrative,

mechanics, dispatchers, etc.) to staff the five aviation

departments. Corporate members with aircraft based at

Morristown have plants in Paterson, Passaic, and Madison

employing several hundred (approximately 500)

employees. In addition, one member company has its

corporate headquarters at Morris Plains and approxi-

mately 2200 people are employed at this facility.

26. In the New York area (New York, New Jersey and

Connecticut) there are 160 NBAA members who operate

a total of 436 aircraft. Membership and aircraft, as

extrapolated from the 1970 NBAA directory, are

distributed as follows:

NBAA Member Turbo- Total

State Companies Jets props Piston Aircraft

New York 109 98 61 124 283

New Jersey 35 43 31 39 113

Connecticut _16 _10 5 25 40

TOTAL 160 151 97 188 436

10a

27. The aviation industry is striving to reduce both

noise and air pollution produced by jet aircraft. The ATA

has recently issued a booklet outlining its 15 year effort —

to curb air pollution from aircraft. The concern of the

Business Jet division of Pan American World Airways to

market an aircraft with a low noise emitting quality is a

matter of record. The Fan Jet Falcon.is presently the

only jet aircraft which meets both the take-offs and

approach noise limits for new aircraft of Part 36 of the

Federal Air Regulations (Exhibit 7) and 5 of the 8 MMU

based jet aircraft are Falcons. The ten point program for

effective jet noise abatement outlined by The Jet Center

and addressed to all flight crews operating jet aircraft into

the Los Angeles area is another example of the aviation

industry’s concern about airport neighbors on a

nationally uniform scale.

28. NBAA has and will continue to work toward an

improved and environmentally acceptable solution to the

problems of air and noise pollution throughout the

nation. NBAA’s more recent concern is expressed in its

February 19, 1970 letters to the major aircraft engine

manufacturers and the American Petroleum Institute.

(Exhibits 8 and 9 respectively). The efforts of NBAA and

its New York members working with the FAA to increase

the maneuvering altitudes for jet aircraft operating into

and out of the New York area airports has done much to

reduce aircraft noise to all residents of the metropolitan

area. NBAA’s March 2, 1971 comments to the FAA

proposal for the retrofit of jet engines to reduce noise

lla

emissions is the most recent evidence of NBAA concern

for the American quality of life. Our efforts will

continue—our concern will not abate.

/s/ Lawrence P. Bedore

LAWRENCE P. BEDORE

Sworn to and subscribed before

me, a Notary Public in and

for the District of Columbia,

at the City of Washington,

insaid District and City, this

29th day of April, 1971

/s/ Stanley H. Fiscler, Jr.

Notary Public in and for the District »

of Columbia in the City of Washington

12a

Exhibit 2

OFFICE OF CITY ATTORNEY om

CITY OF BURBANK sum

CALIFORNIA

275 Caer Carve Ave - tocmem

Tex. 646-2141 oT

049.1231 November 21, 1972

Mr. William H. Roberge, Jr.

Powell & Becker, Attorneys

1156 Fifteenth Strect, N.W., Suite 516

Washington, D. C. 20005 e

Re: City of Burbank, et al. v.

Lockheed Air Terminal, Inc., et al.

Supreme Court Docket No. 71-1637

Dear Mr. Roberge:

This will serve to confirm that we have no objection

,to your filing a bricf in behalf of National Businesses

Aircraft Association, Inc., as amicus curiae, in support

of the appellces in the above entitled action.

In response to your further requcst we are enclosing

a copy of the Jurisdictional Statement which we filed.

For anything further, we would sucgest that you contact

Appellees’ counsel, Nr. Warren Christopher of the firm of

O'Melveny & Mycrs, 611 West Sixth Strcet, Los Angeles,

California 90017.

Yours very truly,

Lif 24. po

sent d's }.. Sieg, Jr

stant City Attorn

RLS: mm

Enc

saw Orrices oF

O'MELVENY & MYERS

Oi WEST SexTH STACEY

toe LOS ANOTLES, CALIFORNIA 90017

Cag dt TEALEPmOne and! OF0 Hee soon

ig a Aga Vanes o7-e08 WEST LOS AnOELES OFICE

Caact sonetss wos” £00 ANOtiES, C017 00s10 C0007)

‘VELESMOmE U2 063-8700

Novenber

10th

ava es

10,010-2

William H. Roberve, Jr., Esq.

Messrs. Powel) & Becker

1156 Fifteenth Street, N.W.

Washington, D. C. 20005

Re City of Burbank, et al. v. Lockheed Air

Teriinel, inc., et al., Supreme Court of

the United States, October Term 1972,

,No. 71-1637

Deas Mz. Robes yc:

Thenk you for your letter of October 7,

1972. On behalf of the appellees, we hereby consent

to your filing an amicus brief on behalf of your

client, National Business Aircraft Association.

Sincerely,

Weun Ca

Warren ChristopHer

Stent tte ee ee ee ee |

ee eee

J. Congress did not intend to preempt local

' regulation of aircraft noise by means of

night curfew ordinances applicable to air-

ports within the jurisdiction of local

a nee Caberss ana Coa kw.

A. General principles of preemption _ - _-

B. The history of congressional legisla-

tion touching the subject reveals an

understanding and intent that state

and local governments retain power

to regulate the use of airports within

their jurisdiction by such means as

3. Hearings on aircraft noise

problems, 1959-1962. _____

4. The 1968 noise abatement

C. The proprietary-police power distinc-

tion relied upon by the court of

appeals is not valid____.....___--

Bt (x)

492. 435—72——-1

nnd

Co GO m& Ww by

—

if: Durban's eedinainns in not to condos wisi

tower chief’s preferential runway pcs 4

III. The validity of the Burbank ordinance should —

be assessed on the basis of its specific im,

pact on commerce rather than on the bagis

‘ of the theoretical impact of nationwide

Cases:

Aircraft Owners & Pilots Ass’n v. Port Aue ~

thority of N.Y., 305 F. Supp. 93_...------- 52

Allegheny Airlines, Inc. v. Village of Cedar- —

hase SEF 00 GIR... iow nnncinnnsdeanmns 47

American Airlines, Inc. v. City of Audubon

Park, Kentucky, 297 F. Supp. 207, affirmed

per curiam, 407 F. 2d 1306, certiorari denied,

American ‘Asrlines, Inc. v. Town of Hempstead,

272 F. Supp. 226, affirmed, 398 F. 2d 369,

certiorari denied, 393 U.S. 1017.........-- 46, 47

Campbell v. Hussey, 368 U.S. 297. ....------ 13, 14

Cloverleaf Co. v. Patterson, 315 U.S. 148_... B

Florida Avocado Growers v. Paul, 373 US.

ee ivncand conma mies een niueieel 13,

Griggs v. Allegheny County, 369 U.S. 84_....- 24, 48

Head v. New Mexico Board, 374 U.S. 424.... B

Hines v. Davidowitz, 312 U.S. 52_.....--.--- 13, 49

Huron Portland Cement Co. v. City of Detroit,

EE I cco cape nabs use aweinunte 55, 5

Northwest Airlines, Inc. v. Minnesota, 322

U. S. 292. ies ele Naish oni lida ebiakanes detain cn eee 2, 12

tinued

P New York Authority v. Eastern Air page

: , Inc., 259 F. Supp. 745... .----- 50, 52, 53

Rice v. Santa Fe Elevator Corp., 331 U.S. 218_ 12, 13

San Diego Building Trades Council v. Garmon,

Slaughter-House Cases, The, 16 Wall. 36----- -

United States v. Causby, 328 U.S. 256-_-_---

Constitution, statutes and regulations:

Constitution of the United States:

Article I, Section 8, Clause 3 (Commerce

acy Oe big f See aaths Seance 7, 48, 53, 54, 59

Article VI, Clause 2 (Supremacy Clause) - 3,

~- 4, 7, 8, 10, 49, 53, 59

Actof March 11, 1964, P.L. 88-280, Sec. 10(1),

8 & &

TE OM: Bee at ein cecceied Sse waicese 18

Air Commerce Act of 1926, Section 4, 44 Stat.

570 (repealed, 72 Stat. 806) ....-.----- 15, 16, 19

Civil Aeronautics Act of 1938, 52 Stat. 973,

et seq.:

ah Sein nndnariovccunduaiup 23

NEESER Re nega cere ee 23

SRE ane ene 23

Fair Labor Standards Act, Section 18, 52 Stat.

1069, as amended, 29 U.S.C. 218_____-._- 13

Federal Airport Act of 1946, 60 Stat. 170:

Ge os no alee ae Ost. 17,18

enties SA ies oo ade ins wo caine 18

Federal Aviation Act of 1958, 72 Stat. 737,

et seg., as amended and added:

Section 101(8), 49 U.S.C. 1301(8)...-_- 23

Section 101(9), 49 U.S.C. 1301(9)-_-_.-- 23

Section 301, 49 U.S.C. 1341_.-.....---.- 21

Section 307, 49 U.S.C. 1348.........-.- 62

Section 307(a), 49 U.S.C. 1348(a)_._..-- 21, 62

Section 307(c), 49 U.S.C. 1348(c)___---- 21,

Constitution, statutes and regulations—Continued

Federal Aviation Act of 1958—Continued

Section 601, 49 U.S.C. 1422.......__._. ""

Section 602, 49 U.S.C. 1423. ........._. 21, 50

Section 606, 49 U.S.C. 1426._.._.....___ 3

Section 611, 49 U.S.C. 1431_...-------. 39

Section 612, 49 U.S.C. 1482_.__._______ 23

Section 1108(a), 49 U.S.C. 1508(a)______ P-1)

Labor-Management Reporting and Disclosure

Act of 1959, Sections 603(a), 604, 73 Stat.

540, 29 U.S.C. 523(a), 524__._.-.....__- 13

Noise Control Act of 1972, P.L. 92-574, 86

Stat. 1234, et seq.:

a kt cwainehsnaccakecn 3, 14, 38, 52, 59

PE FED windy wdinnsslenswoddulon® «89

EEN Ee eaemenor csmeers = 60

RIE idisitinS marnavin coy nnscnnnaeba 89, 60

NE FE i eshtckss uivicieu<ndecdeseumalen 39, 60

I Fits i nek cn eten dane 39, 60, 61, 62

Noise Pollution and Abatement Act of 1970,

P.L. 91-604, 84 Stat. 1709. .....--.-....- 3

Railway Labor Act, Section 2, 44 Stat. 577,

as amended, 45 U.S.C. 152_........-..--- 13

Securities Act of 1933, Section 18, 48 Stat.

i, Fe RR Fi ein eicccn snd acumemecoteaes 13

United States Warehouse Act, Section 29,

39 Stat. 490, as amended, 7 U.S.C. 269._.. 18

Burbank Municipal Code:

I Ss rk Che padwadierodniule 63

Section 20-32.1(a)...........----- ‘etc oe

ED ons SS iki snwcnwe ns 63

I OO bcc cundnce ns 63

California Pub. Utilities Code, Section 21669. 42

ek = ES TA MSc Raa Me wpe sete tren «ee 26, 31

$6 CE Fee Bie orcs ct 21, 50

DO CTR. Fe Ow Skok be nine cb cuccnenes 50

Constitution, statutes and regulations—Continued pags

RE ee Pin ese he Rs eer 37

CFs Pee Oh ee aes ot 21

SOUP aer Pe Fhe oo ee 21

DO Ce ee eek pirat 21

Miscellaneous:

Bikle, The Silence of Congress, 41 Harv. L.

BN, BOP wkend eo 14

118 Cong. Rec. (daily ed.) H1534___________ 42

118 Cong. Rec. (daily ed.) H1535-1536___.___ 43

118 Cong. Rec. (daily ed.) 817758__________ 39

118 Cong. Rec. (daily ed.) S18644__.___.____ 52

96: Fed. Wile. 10000. 37, 51

Hearings before a Subcommittee of the

House Committee on Interstate and

Foreign Commerce, on H.R. 12616, Fed-

eral Aviation Act, 85th Cong., 2d Sess____ 23

Hearings before Subcommittees of the House

Committee on Interstate and Foreign

Commerce, on Aircraft Noise Problems,

86th and 87th Congs______ 18, 19, 20, 25, 26, 27

Hearings before the Subcommittee on Trans-

portation and Aeronautics of the House

Committee on Interstate and Foreign Com-

merce on H.R. 3400 and H.R. 14146, Air-

craft Noise Abatement, 90th Cong., Ist and

SRE GENE Nae ee ce a a 32

Hearings before the Bubsominittes on Public

Health and Environment of the House Com-

mittee on Interstate and Foreign Commerce,

on H.R. 5275,

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