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

FILE COPY

MICHAEL RODPK, JR.,CLER

Supreme Court of the United States

October Term, 1972

No. 71-1637

CITY OF BURBANK, et al.,

Appellants,

vs.

LOCKHEED: AIR TERMINAL, INC., ef al.,

Appellees.

Appeal FroM THE UNITED STaTES CouRT OF APPEALS

FOR THE NINTH CIRCUIT

—————SasoaoaoS630_80 5 GS >

ANSWERING BRIEF OF THE PORT AUTHORITY

OF NEW YORK AND NEW JERSEY,

AS AMICUS CURIAE

——SSBDDaoa==™>"=

Patrick J. FALVEY

General Counsel,. The Port Authority of

New York and New Jersey

| Office and P. O. Address

| 111 Eighth Avenue

New York, New York 10011

Tel. (212) 620-7380

On the Brief:

JosepH LessER *

Assistant General Counsel

and Chief, Opinions and

Appeals Division

IsopeL E. MUIRHEAD

Deputy Chief, Opinions and

Appeals Division

Vicpor D. BERNSTEIN

Attorney

eeeeereerereereeeeeeeeeeeeeaeeeee

Exhibit A. Opinion of the Department of Trans-

portation and The Federal Aviation Administra-

tion In the Matter of Senate Bill No. 1161 (as

amended) Pending Before the House of Repre-

sentatives of the Commonwealth of Massachusetts 1a

TABLE OF AUTHORITIES

CasEs :

American Airlines, et al., Port of New York An-

thority, et al. v. Town of Hempstead, 272 F.

Supp. 226 (E.D.N.Y. 1967), aff’d, 398 F.2d 369

(2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969) 3,7, 8

Opinion of the Justices, Mass. , 271 .

Fe fF Fee rere 4,8,9

Pennsylvania v. Wheeling and Belmont Bridge Co.,

OB ow. GER COD ios ca SUA iis 9

Prudential Insurance Co. v. Benjamin, 328 U.S. 408

PORN chibi ons dkcicada divas dasanseadcins 9

Southern Pacific Co. v. Arizona, 325 U.S. 761

EON) ences tee cheek canccctadedesdbeeiupas 9

Town of East Haven v. Eastern Airlines, Inc., 331

F. Supp. 16 (D. Conn. 1971), supplementary

opinion, 333 F. Supp. 338 (D. Conn 1971), aff’d.,

F.2d — (2d Cir. 1972) 3

Township of Hanover v. Town of Morristown, 108 =~

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

Town of Harrison v. County of Westchester, 13

N.Y. 2d 258, 196 N.B. 2d 240 (1963) .......... Ng

Srarutsgs:

Federal Aviation Act of 1958 .................. 38

Federal Aviation Act of 1958, Sec. 611 (added),

82 Stat. 395 (1968), 49 U.S.C. § 1431 ........ 2,345

Noise Control Act of 1972, 86 Stat. 1234 (1972) 98

MISCELLANEOUS :

Opinion of The Department of Transportation and

The Federal Aviation Administration In the

Matter of Senate Bill No. 1161 (as amended)

Pending Before the House of Representatives of

the Commonwealth of Massachusetts ........, 4,5,9

34 Fed. Reg. 18356 (Nov. 18, 1969) .............. 4

35 Fed. Reg. 12555-56 (Aug. 6, 1970) ............ 9

Senate Report No. 1353, 90th Cong., 2d Sess.

I ig wihdn eng dakns descr atnscnas sche 3,8

Hearings before the Subcommittees of the Com-

mittee on Commerce, House of Representatives,

gt ee 7,8

Hearings before the Subcommittee on Transporta-

tion and Aeronautics of the House Committee on

Interstate and Foreign Commerce on H.R. 3400

and H.R. 14146, Aircraft Noise Abatement, 90th

Cone. Tek ond 36. Gee... .05 62.00 c ies ens 5,6

Hearings before the Aviation Subcommittee of the

Senate Committee on Commerce, 90th Cong., 2d

BS oe ci aws scone a Waccncgcheabscuaee 9

Le

Supreme Court of the United States

October Term, 1972

No. 71-1637

-,*

= SATO

Crry or Bursank, et al.,

Appellants,

v8.

LocxHeep Am TssmrnaL, Inc., et al.,_ .

Appellees.

Appean From tHe Unrrep Srarzs Court or APPEALS

ror THE NirtH Crmcuit | :

Lt

~~

ANSWERING BRIEF OF THE PORT AUTHORITY

OF NEW YORK AND NEW JERSEY,

AS AMICUS CURIAE

The Port Authority of New York and New Jersey

submits this brief in answer to that of the United States,

appearing herein as amicus curiae. Regrettably, we must

take sharp issue with the Government on the essential

question of preemption. In our view the Government’s

position flies in the face of what is demonstrably Congress’

umistakable intent.

Argument

‘The heart of the Government’s position is that the

~ eourts below erred in interpreting Congressional intent as

preempting State and local police power regulation in the

interest of aircraft noise abatement but not airport pro-

prietor regulation. Instead, the Government

Congress did not intend to preempt the exercise of fitsi

and local police power over aircraft noise abatement 9.

~ strictions at airports within their jurisdiction, but only jp.

tended to preempt their regulation of the flight of airerat

in circumstances where they have no jurisdiction over the

airports used by such aircraft. On this basis, the Goy.

ernment now contends, contrary to the position which th

FAA took below, that the City of Burbank could

aircraft operations at the Hollywood-Burbank Airpor

which lies within the City’s geographical boundaries, © -

The Government’s position is that Congress, in enact.

ing the 1968 and 1972 Noise Abatement Amendments }

the Federal Aviation Act of 1958, wished to preserve the

right of every State in the Union to exercise its police

power in order to regulate the type of aircraft which could

use airports within the State (other than airports owned by

the Federal Government) as well the hours during whic

such aircraft could operate. The Government would have

us believe that while Congress in 1968 was allegedly con-

cerned ‘‘about efforts by communities adjoining airports

to impose restrictions impinging upon Federal regulation

of aircraft flight’’ (Brief, p. 46), it, nevertheless, acknowl

edged the right of a State to circumvent this admittedly

preempted area through the exercise of its police power

over airports. Presumably, under the Government's

theory, a State can use its police power (or delegate that

power to its political subdivisions) to achieve what it con

siders to be the proper balance between (a) the right of

airport neighbors to a satisfactory noise environment and

(b) the degree of air commerce desired.’

1 Many local governments own and operate airports which are

physically located in whole or in part within the boundaries of other

units of government. For example, the Morristown Airport in New

Jersey, which is now operating subject to a court imposed curfew, s

located in the Township of Hanover. See Township of Hanover ¥.

Town of Morristown, 108 N.J. Super. 461, 261 A. 2d 692 (1968).

Since a State has jurisdiction over all privately and

icly owned airports within its boundaries, the Govern:

ment has failed to explain what the Senate Committee and

the Department of Transportation sought to achieve when

they determined that after the passage of the 1968 Noise

Abatement Amendment

‘“‘State . . . governments will remain unable to use

their police powers to control aircraft noise by regu-

lating the flight of aircraft.’’ Senate Report No.

1353, p. 6.

The fact is that both the Senate Committee Report and the

Department of Transportation accepted Judge Dooling’s

reasoning in American Airlines, et al., Port of New York

Authority, et al. v. Town of Hempstead, 272 F. Supp. 226

(ED.N.Y. 1967), aff’d, 398 F. 2d 369 (2d Cir, 1968), cert.

denied, 393 U.S. 1017 (1969), that any regulation of air-

craft noise (altitude restriction, noise limit or curfew)

which denies aircraft the use of any portion of the nav-

igable airspace is an attempt to control aircraft noise by

regulating the flight of aircraft.

This is made crystal clear by the immediate contem-

poraneous construction which the FAA gave to the 1968

Amendment. In the preamble to its first regulation under

the Amendment, the FAA specifically concluded that airport

regulation of aircraft noise, of necessity, involves the regu-

New Haven’s Tweed Airport is partially located in East Haven (clear

mnes and avigation easements). See Town of East Haven v.

Eastern Airlines, Inc.. 331 F. Supp. 16 (D. Conn. 1971),

supplementary opinion, 333 F. Supp. 338 (D. Conn. 1971), aff'd,

F.2d (2d Cir. 1972). Most county airports are located in other

political subdivisions of the State which have jurisdiction over the

airport for certain purposes. See Town of Harrison v. County of

Westchester, 13 N.Y. 2d 258, 196 N.E. 2d 240 (1963). In addition,

airports owned by Los Angeles, California, Philadelphia, Pennsyl-

- vania, Tulsa, Oklahoma, Toledo, Ohio, Phoenix, Arizona, Jackson,

Mississippi, Orlando, Florida, San Francisco, California and Atlanta,

- Georgia are partially or wholly located outside the political jurisdic-

tion of the public airport operator.

4

lation of aircraft flight. The preamble pointed out tha:

the FAA: ee

““*,, , does not recognize any right of any Stat @

local government agency that is not an airport px

prietor to issue any regulation controlling the flash

of aircraft for noise purposes.’’ 34 Federal Register

18356, Nov. 18, 1969. (Emphasis added.)

The Department of Transportation also equated airport

noise regulation with airspace regulation in a legal opinign

which it filed in 1971 with the Supreme Judicial Conrt of

the Commonwealth of Massachusetts, urging the invalidity,

on the grounds of Federal preemption and burden on com.

merce, of a proposed State law prohibiting the operation

of certain noisy supersonic aircraft at airports within fy

Commonwealth.? ° ka

In that opinion, the Department of Transportation

(together with the FAA) stated that the proposed law;

‘In its practical effect ... is an attempt by the

legislature to regulate air traffic and airspace. It is

no less an attempt at such regulation than a local

ordinance Ad ote, hed regulate the altitude of

(as in the Audubon Park case, supra, and the

hurst case, supra.) or the permissible noise levels of

aircraft (as in Hempstead, 398 F.2d 369). Indeed,

Senate Bill No. 1161 constitutes the ultimate

lation. By banning supersonic transport takeoti

and landings, it completely forbids a certain

of air traffic and a certain use of airspace.’’ Exhibit

A attached hereto, p. 1a, 10a.

Moreover, the Department of Transportation used the

legislative history of the 1968 Noise Abatement Amend-

ment to support its contention that the proposed act was

a regulation of the flight of aircraft which was preempted

by the Federal Government. (Exhibit A, p. 11a.) The De

2 See Opinion of the Justices, Mass. , 271 N.E. ad

354 (1971). ;

5

partment pointed out, however, that the same legislative

history :

“|. . recognized that State and local agencies as

airport proprietors might limit the use of their

airports on a nondiscriminatory basis.’’ Exhibit

A, p. lla.

We respectfully submit that this earlier interpretation

by the Department of Transportation of the legislative

history of the 1968 Noise Abatement Amendment is the

correct one. ,

The Government also argues that this Court should

not give the legislative history of the 1968 Amendment its

plain meaning because neither the Department of Trans-

portation nor Congress focused upon the distinction be-

tween airport control in a proprietary capacity and airport

control by means of the exercise of the police power.

(Brief, p. 45.) This argument is contrary to the clear

legislative record.

Both the oral and written statements of the appellee, Air

Transport Association of America, submitted at the House

Hearings on H.R. 3400 (the 1968 Noise Abatement Amend-

ment) were directed to this distinction.* The ATA state-

ment, urging adoption of its substitute bill as well as its re-

quest for full Federal preemption of the aircraft noise field,

stated that:

“To date, local attempts to regulate aircraft noise

have been limited. Those which have rested on an

asserted exercise of the police power have been

uniformly held invalid, as an undue and ureasonable

burden on interstate commerce or as invading an

area uniquely committed to Federal care.’’ House

Hearings on H.R. 3400, p. 100. (Citations omitted.)

*Hearings before the Subcommittee on Transportation and Aero-

nautics of the House Committee on Interstate and Foreign Com-

merce on H.R. 3400 and H.R. 14146, Aircraft Noise Abatement,

%th Cong., Ist and 2d Sess., p. 91, 100-101.

6

The ATA statement went on to point out that:

‘¢. .. the principal problem in attempted local

lation has not been by way of noise ordinancy

adopted under the police power, but purported

‘lease conditions’ imposed by the airport operator

as landlord. For example, the Port of New Yor

Authority’s well-known ‘112-PNdb’ rule is enforeeg

against carriers operating at the New York ai

under the alleged right of the Port as operator of

the airport to coutrol the conditions of its use.” [q

After reviewing the cost to the airlines of complying wit

the Port Authority’s jet terms and conditions, the ATA

statement went on to emphasize the necessity for clear pre.

emption covering Port Authority restriction because;

‘‘Until now, the New York airport — has

been upheld by the courts as not in conflict with

existing Federal certification or regulation.” |,

(Citations omitted.)

The letter from the Department of Transportation to the

Chairman of the Committee on Interstate and Foreign

Commerce, dated March 1, 1968 (House Hearing pp. 8-10)

was specifically directed to the ATA’s request that the

airport proprietors’ restrictions be preempted. In that

letter (a copy of which is attached to the Government's

brief as Appendix B) * the Department of Transportation

not only directed itself to the right of the airport operator

to limit aircraft noise in the exercise of its proprietary

functions, but also recommended that such authority con-

tinue. The letter states: :

4 The copy of the Department of Transportation letter of March

1, 1968, addressed to the Chairmam of the House Committee on

Interstate and Foreign Commerce ieiimprinted in the Hearings held

by that Committee’s Subcommittee on Transportation and Aeronaw-

tics on H.R. 3400 at pp. 8-10 (See footnote 3). The copy of the

letter set forth in the Government’s brief as Appendix B is addressed

to the Chairman of the House Subcommittee on Transportation and

Aeronautics of the House Committee on Interstate and Foreign

Commerce.

a», —

4*As a practical matter, and as ATA concedes in its

testimony, the only regulatory authority left to local

communities or airport operators is the authority

of the airport operator, im the exercise of tts pro-

prietary function, to limit on noise grounds the kind

of aircraft which may use its facility. The Depart-

ment is firmly convinced that such authority in the

airport operator should continue.’’ House Hearings

on H.R. 3400, hed Appendix B to Government’s

Brief, p. 67. (Emphasis added.)

Moreover, Judge Dooling’s opinion in the Hempstead

case, 272 F. Supp. 226, 233-34, which the Secretary and

Senate Committee used to define the nature and scope of

Federal preemption in the aircraft noise field, also deals

with the legal difference between a local police power

enactment such as the Hempstead ordinance and a land-

- Iord’s restriction on aircraft users such as the Port

Authority’s noise limits and nighttime runway limitations.

Finally, the distinction between police power and an

sirport operator’s regulations was fully explored at the

so-called Harris Committee Hearings held in 1959-62 before

the Subcommittees of the Committee on Commerce, House

of Representatives, 86th and 87th Congress. At these

hearings, my predecessor, in discussing the Port Author-

ity’s jet noise restrictions, advised that the legal basis for

such restrictions was the:

‘«. , power [that] inheres in the very nature of the

property ownership and control and unless sur-

rendered by contract is possessed by all owners or

operators of real property.’’ Hearings, p. 657.

He further explained that the assertion of the Port Author-

ity’s power to restrict the use of its airports for noise

abatement purposes:

‘‘ |. was not an assertion ... of any legislative

* power. It was a common-law right which inheres

to the owner and operator of land.’’ Jd.

The Senate Committee on Commerce was fully aware

that the Harris Committee Hearings had been held and

8

indeed referred to them in its Report on H.R, 3400, (Be-

port No. 1853, p. 2.) Furthermore, it must be ‘agen;

that when the Secretary of Transportation, Alan §, ’

wrote to the Chairman of the Subcommittee on Aviation

of the Senate Committe on Commerce on June 22, 1968, dp.

fining the nature of Federal preemption in the aircraft noise

field, he did so with full knowledge of the meaning of the

terms in question. As a matter of fact, the Secretary

himself participated in the Harris Committee Hearings,

(Hearings, pp. 496-540.)

Although the Harris Committee Hearings and Report

are useful in determining the knowledge possessed by the ,

Secretary of Transportation and the Senate Committe

when they explored the question of Federal preemption in

the aircraft noise field, the Government is wrong (

p. 24-30) in using this material to shed light on the inter.

pretation of the Federal Aviation Act of 1958, since no

legislative action had been taken thereon. Judge Dooling’s

well-reasoned conclusion on this point in Hempstead jg

irrefutable. 272 F. Supp. 226, 234.

The Government is also in error in asserting that Con-

gress enacted the Noise Control Act of 1972 upon the

assumption that local police power curfews at airports had

not been preempted (Brief, p. 41). On the contrary, it

must be presumed that Congress acted not only with knowi-

edge of the uniform contemporaneous construction that

such police power regulations had been preempted (Port

Authority principal brief, p. 16), but also with knowledge

that both the United States District Court for the Central

District of California and the United States Court of

Appeals for the Ninth Circuit had invalidated the Burbank

nighttime curfew on the ground of preemption and that the

FAA had. urged such a holding.® Me

® Congress also enacted the Noise Control Act of 1972 with

knowledge of the opinion rendered in Opinion of the Justices,

Mass. , 271 N.E. 2d 354 (1971), in which the

Court held that a proposed police power statute barring the operation

of noisy supersonic aircraft at Massachusetts airports was invalid

pe

—.........

In light of the reasons set forth both here as well as in

our principal brief, we respectfully submit that the decision

below should be affirmed.

Respectfully submitted,

Parziox J. Fanvay

General Counsel, The Port Authority of

New York and New Jersey

Appearing Amicus Curiae

Office and P. O, Address

111 Highth Avenue

New York, New York 10011

On the Brief : Tel. (212) 620-7380

JosepH Lassen :

Assistant General Counsel

and Chief, Opinions and

Appeals Division

IsoseL EX. MutrHBaD

Deputy Chief, Opinions and

Appeals Division

Viepor D. BeRnstTEIN

Attorney

New York, N. Y.

January 30, 1973

under the Supremacy Clause. Although the Court questioned, by

way of dictum, the right of an airport proprietor to ban the super-

sonic aircraft from its airport, we submit that this observation

stemmed from the fact that the DOT-FAA brief failed to advise

the Court that the FAA’s Advanced Notice of Proposed Rule Making

(ANPRM) on civil supersonic aircraft noise type certification stan-

dards, published August 6, 1970, specifically recognized the authority

of the airport proprietor to regulate supersonic aircraft. 35 Fed.

Reg. 12555-56, see Port Authority principal brief, pp. 14-15.

The ANPRM on civil supersonic aircraft noise standards reflects

the Congressional determination that uniformity in the aircraft noise

field is neither necessary nor desirable and that an airport proprietor’s

restrictions in this area would in fact aid the growth of air commerce.

Hearing before the Aviation Subcommittee of the Senate Commit-

tee on Commerce, 90th Cong., 2d Sess., pp. 24-28, 34-39. Such a

determination by Congress pursuant to its commerce clause powers

has always been respected by this Court. Pennsylvania v. Wheeling

ond Belmont Bridge Co., 18 How. 421 (1856) ; Prudential Insurance

Co. v. Benjamin, 328 U.S. 408 (1946) ; See also Southern Pacific

0. v. Arigona, 325 U.S. 761, 769 (1945).

10

Proof of Service

I, Parnick J. Fauvey, a member of the Bar ot fe

Supreme Court of the United States, and General Coungy

of The Port Authority of New York and New Jersey

appearing herein, Amicus Curiae, hereby certify that a

the 30th day of January, 1973, I served copies of the fore.

going brief on counsel for Appellants, counsel for Appellees,

counsel for the State of California, Amicus Curiae, comnige

for the United States, Amicus Curiae, counsel for th

National Business Aircraft Association, Inc., Asioy

Curiae, and counsel for the Air Line Pilots

International, Amicus Curiae, by mailing three copies

thereof in a duly addressed envelope, with air mail postage

prepaid, to each of the following in this cause:

Samvuzt Goriick, Esq.

City Attorney

Counsel for all Appellants except Samuel Gorlick

275 East Olive Avenue

Burbank, California 91502

Ricuarp L. Sree, Jr., Esq.

Counsel for Appellant Samuel Gorlick

275 East Olive Avenue

Burbank, California 91502

Warren Curistopuer, Esq.

Rautex W. Dav, Esq. and

Micuazt D. Zimmerman, Eeq.

Counsel for Appellees

611 West Sixth Street

Los Angeles, California 90017

Evetiz J. Youncer, Esq.

Attorney General of the State of California,

Amicus Curiae

600 State Building

217 West First Street

Los Angeles, California 90012

om,

11.

Ezwin N. Gaisworp, Esq.

Solicitor General of the United States,

Amicus Curiae

Department of Justice

Washington, D. C. 20530

Roszet D. Powe.t, Esq.

Counsel for National Aircraft Association, Inc.

1156 Fifteenth Street, N.W.

Suite 516

Washington, D. C. 20005

Samuzn J. Conzn, Eeq.

Counsel for Air Line Pilots Association,

International, Amicus Curiae

605 Third Avenue

New York, New York 10016

/s8/ Paratck J. Fatvey

Patrick J. Falvey

Be SS ae aan ee a ee

la

EXHIBIT A

Supreme Jupiout Courr

CoMMONWEALTH oF MassaCHUSETTS ;

a

In the Matter of Senate Bill No. 1161 (as amended) Pending

Before the House of Representatives of the Common-

wealth of Massachusetts

Se

i i

Opinion oF

THe DeparTMEeNntT or TRANSPORTATION

AND

Tue Fepera, Aviation ADMINISTRATION

Pursuant to leave of the Court, the General Counsel of

the Department of Transportation and the General Coun-

sel of the Federal Aviation Administration submit the

following legal opinion.

The House of Representatives of the Commonwealth

of Massachusetts by Order No. 5382 dated 20 April 1971

has requested the opinion of the Honorable Justices of

this Court upon the question of the constitutionality of

Senate Bill No. 1161 (amended) if enacted into law.

The Journal of the House for Tuesday, 20 April 1971,

contains the amended language of Senate Bill 1161, ‘‘An

Act prohibiting supersonic transport planes from landing

or taking off in the Commonwealth,’’ which reads:

‘‘Notwithstanding the provision of any law, unless

there is an emergency, no commercial supersonic

transport plane which is not capable of limiting its

noise level to one hundred and eight decibels or less

while landing, on the ground, or taking off, will be

permitted to land or take off in the commonwealth.”’

The Court by Announcement dated 30 April 1971 invited

the filing of briefs by interested persons.

2a

This opinion urges this Court to find in its

Opinion concerning the question of law presented by the

House of Representatives that the Commonwealth of Mag

sachusetts is not constitutionally competent to enact any

law which regulates or prohibits the operation of supersonig

aircraft at airports within the Commonwealth of Mags,

chusetts, for the reasons that the Federal Government has

preempted the regulation of airspace and aircraft opera

tions, and because the Commerce Clause of the United

States Constitution requires that air commerce be regulated

by a single authority, the Congress of the United States,

I. Tue Fepera, GovERNMENT HAs 80 PREEMPTED THE Rug.

ULATION OF AIRSPACE AND AIRCRAFT OPERATIONS 48 1

PRECLUDE ENFORCEMENT OF SENATE Bix No. 1161,

A. Tue Fepera, ScHemMe 1s CoMPREHENSIVE AND PR

VASIVE.

Through a series of enactments and regulations, the fed.

eral government has asserted a broad authority to control

and regulate use of the navigable airspace and aircraft op.

erations. The principal statute is the Federal Aviation

Act of 1958, 49 U.S.C. §§ 1301-1542, as amended.

1. .The Federal Aviation Act of 1958. Under this Act,

the United States is declared ‘‘to possess and exercise com-

plete and exclusive national sovereignty in the airspace

of the United States.’’ (49 U.S.C. § 1508(a)) Each citizen

of the United States is granted the ‘‘right of freedom of

transit through the navigable. airspace of the United

States.’’ (49 U.S.C. § 1304) ‘‘Navigable airspace’’ is de

fined in the Act as all airspace ‘‘above the minimum alt-

tudes of flight prescribed by regulations issued under this

chapter, and shall include airspace needed to insure safety

in take-off and landing of aircraft.’’ (49 U.S.C. § 1301 (24))

3a

¥

To facilitate transit through the air in a safe and ef-

ficient manner, the Act established the Federal Aviation

Administration (FAA), headed by an Administrator, and

conferred upon that agency broad powers to.regulate air

commerce in the ‘‘public interest.” (49 U.S.C. §§ 1303,

1341(a), 1348) Matters enumerated by the Act as being

part of the ‘‘public interest,’’ include ‘‘the regulation of

air commence . . . to best promote its development and

safety and fulfill the requirements of national defense’”’;

“the control of the use of the navigable airspace of the

United States and the regulation of both civil and military

operations in such airspace in the interest of safety and

eficiency’’; ‘‘the development and operation of a common

system of air traffic control and navigation for both military

and civil aircraft.’’ (49 U.S.C. ¢ 1303)

In order to fulfill the broad mandate of the Act, the Act

confers upon the Administrator of the FAA equally broad

powers over all aspects of the navigation of aircraft. Thus

the Administrator is authorized, among other things, to

develop plans and formulate policy with respect to the use

of navigable airspace and allot the use of such airspace

as he deems proper (49 U.S.C. § 1348 (a)); prescribe rules

governing the flight of aircraft, including rules for the

eficient and safe use of navigable airspace as well as ‘‘for

the protection of persons and property on the ground.”’

(49 U.S.C. § 1348(¢)) ; promote air commerce by establish-

ing and maintaining air navigation facilities (49 U.S.C.

§1303(d), 1348(b)) ; conduct tests and undertake research

and development of: aircraft and aircraft equipment (49

U.S.C. §1353(b)); and prescribe certain types. of equip-

ment aircraft must utilize (49 U.S.C. § 1423(a) (1)).1. In

* Scheduled airlines in addition to regulation by the FAA are

also subject to regulation by the Civil Aeronautics Board. (C.A.B.).

Thus, before an air carrier may engage in air transportation and be

subject to operational and navigation regulation by the FAA, the

airline must secure a certificate from the C.A.B. permitting it to

engage in air transportation. (49 U.S.C. § 1371).

4a

addition to these express enumerated powers, the Admin.

istrator is given the authority generally to issue such op.

ders, rules and regulations as he deems necessary to ¢.

ecute his duties and carry out the provisions of the Ag

(49 U.S.C. § 1354(a))

2. The 1968 Amendment. Among the most important

amendments to the Federal Aviation Act is that added

by Public Law 90-411, 82 Stat. 395 (1968) pertaining tp

aircraft noise and sonic boom, (49 U.S.C. 41431) Under

the amendment, the Administrator is required to prescribe

such standards, rules, and regulations as he may find neces.

sary for the control and abatement of aircraft noise, Ip

so doing, the Administrator must consider inter alia whether

any proposed standard, rule or regulation is consistent

with the highest degree of safety in air commerce or air

transportation in the public interest and whether it is geo.

nomically reasonable and technologically practical and

appropriate for the type of aircraft to which it will apply,

3. Regulations under the Act. Pursuant to his broad

authority, the Administrator has issued numerous comple

and detailed rules and regulations governing air navigs-

tion. See Title 14, Code of Federal Regulations, especially

Parts 71, 73, 75, 77, 91, 93, 95, 97. As part of the regulatory

scheme established by the FAA to assure the orderly flow

of air traffic, the Administrator has divided the navigable

airspace above the United States into various ‘‘control

areas’’ and ‘‘control zones.’’ (14 C.F.R. 1.1, 71.7, 7111)

Each of the designated control areas and zones has been

assigned a different use. For example, the airspace from

the surface up to 2,000 feet above the surface within a

horizontal radius of five statute miles from the geograph-

ical center of any airport having a control tower, is

designated ‘‘airport traffic area’’ and is reserved exch-

sively for the takeoff and landing of aircraft at the airport.

(14 C.F.R. 1.1, 91.85(b)) Other examples of designated

5a

airspace include ‘‘jet routes”? which are located between

18,000 feet and 45,000 feet above mean sea level and ‘‘fed-

eral airways,’’ each eight miles wide and located between

700 feet above the surface of the earth to 18,000 feet above

mean sea level (14 C.F.R. 75.1, 75.11, 71.3, 71.5,

All aircraft operating within the navigable airspace

must comply with the general operating and flight rules of

the FAA (14 C.F.R. 91). At airports with control towers

operated by the United States, such as the Logan Interna-

tional Airport at Boston, all operations to, from, or on the

airport are regulated by the FAA in an effort to maintain

traffic separation and avoid collision. Landings and de-

partures, which are permitted only after clearance is

obtained from FAA personnel, are made pursuant to pro-

cedures and regulations of the FAA which prescribe in

detail such items as route of the aircraft approaching or

leaving the airport, its angle of flight, altitude at any given

point, speed, and the runway the aircraft may use. (e.g.,

14 C.F.R. 91.79; 91.85; 91.87 ; 91.116; 91.117; 91.119; 91.121;

97.1) Standard instrument approach procedures for air-

ports, such as Logan International, are published as regu-

lations by the FAA and are available to each pilot in the

form of charts. (14 C.F.R. 97) Standard Instrument De-

parture Procedures established by the FAA for Logan

International Airport are published by the Coast and Geo-

detic Survey and when incorporated in a departure clear-

ance issued by the Tower must be complied with by the

pilot. (14 C.F.R. 91.87(h)). Logan International Airport

has a runway noise abatement system (14 C.F.R. 91.87 (g)),

and procedures have been established by the Tower de-

signed to reduce the community exposure to noise to the

lowest practicable minimum. Although the Logan Inter-

national noise abatement procedures are not mandatory on

the part of pilots they are followed by FAA controllers

in regard to the issuance of clearance to all large (over

12,500 pounds) aircraft and all turbine powered aircraft.

6a

To assure no deviation from FAA procedures and regy.

lations, all pilots operating within an airport traffic arg

are required to maintain two-way radio communications

with the control tower and to comply with all clearangs

issued by the control tower. (14 C.F.R. 91.75(a), :(),

91.87(b), (h)) Air traffic outside of the airport trafiy

area is similarly regulated by the FAA to maintain proper

aircraft separation, with the FAA having the authority ty

set route and altitude restrictions for aircraft operati

between airports. (See eg., 14 C.F.R. 71.1, 75.1, 91.79,

91.81, 91.119(a), (1.121(a), 91.123(a), (b), 95.1)

Although as a general rule a pilot must follow all the

regulations, procedures and instructions of the FAA, the

FAA recognizes that the primary responsibility and author.

ity for the safe operations during flight time of an air.

craft rests with the pilot in command. (14 C.F.R. 91.3(a),

121.533(e), 121.535(d), 121.537(d)) Accordingly, a pilot

in command is expressly authorized to deviate from certain

of the general operating and flight rules to the extent

necessary for the safety of the operation. (14 CFR

91.3(b)) This placing of primary responsibility for safe

operation upon the pilot in command is consistent with the

long standing practice in aviation for the safety of its

operation and in recognition of the fact that final decisions

must be made whenever possible by the pilot.

The Administrator has promulgated aircraft type cer-

tification regulations in accordance with his responsibilities

in the field of noise control and abatement. (14 CFR

21, 36, 34 F.R. 18355-18379) and under the authority of

Public Law 90-411, supra. On 10 April 1970, the Adminis

trator issued a Notice of Proposed Rule Making to adopt

a new Federal Aviation Regulation 91.55 in regard to sonic

boom by civil aircraft. (35 F.R. 6189, April 16, 1970)

Under consideration at the present time are proposed regn-

latory actions (Advance Notice of Proposed Rule Making,

35 F.R. 16980, 4 November 1970) relating to the retr-

7a

fitting of subsonic transport and turbojet powered aircraft

for the purpose of reducing noise at the source. Further,

FAA studies are continuing in regard to the changing of

operating procedures for present day subsonic transport

and turbojet powered aircraft to reduce to an absolute

minimum the noise effect without retrofit.

4, National Environmental Policy Act of 1969, Public

Law 91-190, 83 Stat. 852, approved January 1, 1970, states

that it is national policy to encourage productive and en-

joyable harmony between man and his environment. To

this end Congress declared it is the continuing policy of

the Federal Government in cooperation with State and

local governments and others, to use all practicable means

“to foster and promote the general welfare, to create and

maintain conditions under which man and nature exist in

productive harmony, and fulfill the social, economic, and

other requirements of present and future generations of

Americans. Accordingly, all agencies of the Federal Gov-

ernment are required under the Act to review all their

present statutory authority, administrative regulations,

and current policies and procedures for the purpose of

determining whether there Are any deficiencies or incon-

sistencies which prohibit full compliance with the national

policy expressed by Congress and to report to the Presi-

dent by July 1, 1971.

5. Airport and Airway Development Act of 1970. The

Congress exercised further authority in the field of avia-

tion by the enactment of Public Law 91-258, 84 Stat. 219

(May 21,1970). Title I of that Act, the ‘* Airport and Air-

way Development Act of 1970,’ authorizes the Secretary

of Transportation to make grants of $840 million for public

airport development over a four-year period ($14b). This

Title also requires airports which serve air carriers cer-

tificated by the C.A.B. to obtain an airport operating

certificate from the Administrator ($612). Such cer-

8a’

tificates can be. issued only after a finding by the

trator that the Airport is ‘‘properly and adequate

equipped and able to conduct a safe operation.”” ith]

ofthe new Act provides for new or increased taxes to he

imposed on virtually all users of the airport and airway

system. These taxes would be placed in an ‘‘ Airport and

Airways Trust Fund’’ to be expended under the Act for

airport planning, airport development and airways facili.

ties in accordance with a National Airport System Pig

to be prepared by the Secretary of Transportation.

B. Enactment or Senate Bux 1161 wou Be levee

-Bgcause It ee

BY ConGREss.

Congress, through the enactment of comp

legislation indicating an intention to ‘‘occupy .

field,’? may ‘‘preempt’’ the field to the exclusion of Toe

regulation. Hines v. Davidowitz, 312 U.S. 52, 67; Pew

sylvania v. Nelson, 350 U.S. 497, 502. The principle of

preemption is fully applicable to the area of regulation of

interstate commerce. See, e.g., Bethlehem Steel Co, +,

New York State Labor Relations Board, 330 US. 761;

Campbell v. Hussey, 368 U.S. 297.

The Supreme Court has advanced three tests for ue

termining whether the federal government has preempted

an area: (1) whether the scheme of federal regulation is

so pervasive as to make reasonable the inference that

Congress left no room for the states to supplement it;

(2) whether federal regulation ‘‘touch a field’’ in which

the federal interest is dominant in the federal system; and

(3) whether the enforcement of local enactments on the

same subject may produce a result inconsistent with the

objective of federal law. Rice v. Santa Fe Elevator Corp,

331 U.S. 218, 230. See also Pennsylvania v. Nelson, supra,

at 502-502. Each of these tests is clearly satisfied in this

instance.

9a

First, the scheme of federal regulation of air com-

merce is ‘‘comprehensive’’ and ‘‘extensive.’’ Chicago and

Southern Air Lines, Inc. v, Waterman S. 8. Corp., 333 U.S.

103, 105; Northwest Airlines, Inc. v. Minnesota, 322 U.S.

992, 303. The broad scope of federal regulation of the

use of airspace and of air traffic is readily apparent from

the statutes and regulations quoted above. The extent of

this regulation is such that Congress could not have an-

ticipated that states or cities would step in and try to

exercise their own brand of regulation.

Second, the federal legislation regulates an area in

which the federal interest is dominant. The Constitution,

Article I, section 8, confers upon Congress the exclusive

power to regulate interstate and foreign commerce. It is

the federal government that is charged with responsibility

of assuring the free flow of commerce by establishing uni-

form procedures prescribed by a single authority for the

safe and efficient use of navigable airspace. See North-

west Airlines, Inc. v. Minnesota, 322 U.S. 292; cf., Southern

Pacific Co. v. Arizona, 325 U.S. 761, 766-67. Senate Bill

No. 1161 purports to regulate air traffic and use of airspace

and therefore has a direct impact upon interstate and

foreign commerce which is the concern of the national

government. Since ‘‘exclusive federal regulation in order

to achieve uniformity vital to the national interest’’ is

required, local legislation must give way to the overriding

federal interest in this area with regard to air commerce.

Florida Lime € Avocado Growers, Inc. v. Paul, 373 U.S.

132, 144.

The third test of preemption is met here in that local

regulation in the field in which the legislature seeks to

legislate necessarily produces a result inconsistent with the

objectives of federal legislation. In enacting the Federal

Aviation Act, it was the intention of Congress to establish

the right of every citizen to freedom of transit through the

10a

navigable airspace of the United States and to facilitaty

the exercise of that right by a federal regulatory schem,

which promotes safe and efficient air commerce. The enggt.

ment of an ordinance or law by a local government that has

the effect of prohibiting airplanes from using navigable —

airspace obviously is inconsistent with the. objectives of —

federal law. Accordingly, local legislation with objective

different that those = i has sought to achieve must

yield.

The conclusion that Senate Bill No. 1161 purports tp) —

regulate an area preempted by legislation of the national

government finds support in prior decisions holding that

the federal government has preempted the area of regula.

tion of air traffic and use of airspace. See American Air.

lines, Inc. v. City of Audubon Park, 297 F. Supp.,207 (WD.

Ky. 1968), aff’d, 407 F.. 2d 1307 (6h [sic] Cir. 1969) ; Amer.

ican Airlines, Inc. v. Town of Hempstead, 272 8. [sic] Supp,

226, 232-33 (E.D. N.Y. 1967), affirmed without reaching pre.

emption issue, 398 F’. 2d 369 (2d Cir. 1968), cert. denied, 393

U.S. 1017 (1969); Allegheny Airlines, Inc. v. Village of

Cedarhurst, 238 F. 2d 812, 814-15 (2d Cir. 1956).

In its practical effect, Senate Bill No. 1161 is an attempt

by the legislature to regulate air traffic and airspace. It is

no less an attempt at such regulation than a local ordinance

purporting to regulate the altitude of flight (as in the

Audubon Park case, supra, and the Cedarhurst case,

supra.) or the permissible noise levels of aircraft (as in

Hempstead, 398 F. 2d 369). Indeed, Senate Bill No. 1161

constitutes the ultimate regulation. By banning supersonic

transport takeoffs and landings, it completely forbids a

certain type of air traffic and a certain use of airspace.

Recent congressional action shows an intent to further

preempt the field of regulating airspace and airports.

As pointed out above, Congress in 1968, amended the Fed-

lla

eral Aviation Act of 1958, to charge the Administrator of

the FAA with responsibility for the issuance of rules

necessary to provide for the control and abatement of air-

eraft noise. (Public Law 90-411, July 21, 1968) In doing

so Congress recognized that local governments had a con-

tinuing responsibility not affected by Public Law 90-411,

to assure compatible land use through the exercise of land

use planning and zoning powers as a necessary part of

the total attack on aircraft noise (Senate Report No. 1353,

July 1, 1968, U.S. Code Cong. and Adm. News (1968),

2474, 2484). The Report concurred in the views expressed

by the then Secretary o portation in a letter to

the committee dated June 22, 1968, that ‘‘H.R. 3400 would

merely expand the Federal Goyernment’s role in a field

already preempted. It would not change this preemption.

State and local governments remain unable to use

their police powers to control aircraft noise by regulating

the flight of aircraft.’’ The same letter recognized that

State and local agencies as airport proprietors might limit

the use of their airports on a nondiscriminatory basis.

Moreover, the new ‘‘ Airport and Airway Development Act

of 1970’? (Public Law 91-258, July 1, 1970), summarized

above, is even more comprehensive than the Federal Airport

Act of 1946. These recent statutes should rémove any

doubt which may have existed as to federal preemption of

regulation of air traffic or use of airspace.

In sum, Senate Bill No. 1161 cannot stand because it

results in a regulation of the use of airspace and of air

trafic. Since the federal government ‘‘has taken the

particular subject in hand,’’ the Commonwealth is pre-

cluded from enforcing its legislation. Charleston & W. C.

Ry..v. Varnville Furniture Co., 237 U.S. 597, 604. This

result follows ‘‘however commendable . . . different’’ the

purpose of the local regulation. Napier v. Atlantic Coast

Line R., 272 U.S. 605, 613.

12a.

Il. Ssware Buw No. 1161 Is Invatw Because ru.

mERCcE Cxiause Requmes Tuar Am Conca By

Reoutarep By A Sinetz AuTHoriry. oy

In the foregoing section, we have demonstrated ‘thai ‘the

comprehensive nature of the federal legislation in regulat.

ing air traffic and the use of navigable airspace has pre

empted this field for the national government to the exelp.

sion of local governments. We now show that even if the

federal legislation did not preempt that area, Senate Bill

No. 1161 would still be invalid as the Constitution itself

confers upon Congress the exclusive power to regulate such

commerce,

It is settled that the Commerce Clause of the Constita:

tion affords protection from state legislation inimical to

national commerce, even in the absence of congressional

action. Southern Pacific Co. v. Arizona, 327 U.S. 761, 768.

Ever since Gibbons v. Ogden, 9 Wheat 1, the states have not

been deemed to have authority to... ‘‘regulate those phases

of the national commerce which, because of the need of

national uniformity, demand that their regulation, if any,

be prescribed by a single authority.’’ Id. at 767.

A local ordinance or regulation seeking to impose

supersonic transport prohibition is a vivid illustration

of the need to have regulation of airspace and air traffic

under a single authority. Such regulation cannot be con-

sidered solely ‘‘in the accident of its particular circum-

stances.’’ American Airlines, Inc. v. Town of Hempstead,

272 F. Supp. 266, 231-232 (E.D. N.Y. 1967), for, if upheld,

it would likely spread to other major airports and the

inevitable result would be to hobble the supersonic aircraft

as ‘an instrument of national and world transportation.

Air transportation, perhaps more than any form of

commerce, requires regulation by a single authority. Even

before 600-mile per hour flights became the custom, Con-

gress recognized this need by the establishment of the

13a

Federal Aviation Agency. It would indeed be a harmful and

regressive step to permit a compromise of the FAA’s

authority through permitting the enforcement of local

jaws or regulations regarding the use of navigable airspace.

ConcLusion

Senate Bill No. 1161, the Act now pending in the Legis-

lature of the Commonwealth of Massachusetts, is invalid

since it attempts to regulate in a field preempted by Con-

and because the Commerce Clause of the Constitution

requires that air commerce be regulated by a single author-

ity, the: Congress of the United States. Its effect would

be to place a burden on interstate and foreign commerce,

by prohibiting the operation of a certain aircraft type at

at least one major interstate and international air terminal,

which terminal (Logan International Airport) is a vital

part of the National Airport System. A proliferation of

this type of local regulation could eventually stagnate and

destroy the national air transportation system. Senate

Bill No. 1161 is therefore repugnant to the Federal Avia-

tion Act of 1958 and the Airport and Airways Development

Act of 1970, and they cannot be reconciled.

Respectfully submitted:

/s/ J. Thomas Tidd

J. THomas Tipp

Acting General Counsel

Department of Transporation

/s/ George U. Carneal

Grorce U. CarneaL

General Counsel

Federal Aviation Administration

Carl A. Daniels

Cant A. Dantets

Trial Attorney

Federal Aviation Administration

TABLE OF CONTENTS

sderal Airspace Management Requires

ontrol of the Hours During Which Aircraft

Enter the Navigable Airspace ........ 7

E é Regulation of the Hours of Aircraft

a Congressional reliance on the FAA in

noise abatement matters............. 16

2. Position of the FAA in the lower

Ree ee ee 17

“eee sere 19

Page

IL. The Legislative History Shows That

Congress Intended To Prevent Local

Jurisdictions From Exercising Police Power

in Matters of Airspace Management,

Aircraft Operations and Aircraft Noise .... 2

A. In the 1958 Act, the FAA Administrator

Was Granted Broad Rulemaking

Authority To Deal With Aircraft Noise 2%

. The Purpose of the 1958 Act Was To End

Jurisdictional Divisions and Vest

Plenary Authority Over Airspace

Management and Aircraft Operations

in the FAA Administrator

_ The 1968 Amendment Banned Any

Exercise of Police Power by Local

D. The 1972 Act Did Not Alter the

Proprietary-Police Power Distinction ... 3%

The Conflict Between the Burbank Ordinance

and Federal Law Is Not Diminished by the

United States’ Brief

- The Commerce Clause Continues To Stand

As a Barrier to the Burbank Ordinance .... 4

CONCLUSION

Appendix A: Letter from FAA Western Re-

gional Director to Executive Officer of Los.

Angeles County Board of Supervisors, August

Page

Appendix B: Letter from FAA Western Regional

Counsel to San Diego Unified Port District,

I 5 oc is hae vicki cee ce (5)

Appendix C: Letter from FAA Eastern Regional

Director to Chairman, New York State Assem-

bly Committee on Industry and Economic De-

velopment, February 22, 5 ge ee eee (7)

Appendix D: Letter from FAA Southwest Re-

gional Director to Director, Houston Interna-

tional Airport, May 10,1972 ................. (8)

.. Appendix E: FAA Director of Aviation Econ-

omics Memorandum, “Economic Impact of

Night Curfews,” March 10,1972 ............. (11)

CITATIONS

Cases

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

New York, 305 F.Supp. 93 (E.D.N.Y. an 41

American Airlines, Inc. v. Town of Hempstead,

272 F.Supp. 226 (E.D.N.Y. 1967), aff’d, 398 F.2d

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

ee ani 33, 49

Griggs v. Allegheny County, 369 U.S. 84 (1962) .... 31

Port of New York Authority v. Eastern Air Lines,

Ine. 259 F.Supp. 745 (E.D.N.Y. nt 41

Southern Pacific Co. v. Arizona, 325 U.S.

eo cdc scan... 6, 41

United States v. Town of Morristown, Civil No.

‘W172, D.N.J., filed July 17,1972............_ 13

In for Dulles v. Volpe, 344 F. Supp. 573

, Va. 1972), appeal pending ................ 13

—_—iv—

‘Statutory Materials

Act of July 21, 1968, Pub. L. No. 90-411,

82 Stat. 395 (1968)

Civil Aeronautics Act of 1938,

§ 601(a) (6), 52 Stat. 1008

601(a) (7), 52 Stat. 1008

Federal Aviation Act of 1958, 49 U.S.C.

Noise Control Act of 1972, Pub. L. No. 92-574,

§ 7, 86 Stat. 1239 (1972)

Regulations

FAA Draft Release No. 59-17, Los Angeles

International Airport Traffic Pattern Area

Rules, 24 Fed. Reg. 9020 (1959)

Special Civil Air Regulation No. 438, Los Angeles

International Airport Traffic Pattern Area Rul

25 Fed. Reg. 1764 (1960)

Special Civil Air Regulation SR-442, New York -

International Airport Traffic Area Rules,

95 Fed. Reg. 8538 (1960)

—Vv—

Congressional Materials

Page

‘Congressional Debates:

- June 10, 1968, House

114 Cong. Rec. 16387 ........................ 16

114 Cong. Rec. 16399 ...................0004. 34

‘June 11, 1968, Senate, 114 Cong. Rec. 20931 ...... 34

February 29, 1972, House, 118 Cong. Rec.

9 17

eS ee 37 «

Hearings on H.R. 12616 Before a Subcomm. of the

House Comm. on Interstate and Foreign

Commerce, 85th Cong., 2d Sess. (1958) ...... 25, 29

Hearings on S. 3880 Before the Subcomm. on

- Aviation of the Senate Comm. on Interstate and

Foreign Commerce, 85th Cong., 2d Sess. (1958) .. 26

Hearings Before Subcomms. of the House Comm.

on Interstate and Foreign Commerce,

- 86th & 87th Cong. ft ) eee 12, 24, 27, 28, 31, 36

Hearings on H.R. 3400, H.R. 14146 Before the

Subcomm. of Transportation and Aeronautics of

the House Comm. on Interstate and Foreign

‘Commerce, 90th Cong., 1st & 2d Sess., Ser. No.

90-35 nek oe iF. vecne as 16

tong on 8. 707 and H.R. 3400 Before the

Aviation Subcomm. of the Senate Comm. on

merce, 90th Cong., 2d Sess., Ser. No.

—vi—

j Page

Hearings on H.R. 5275, et. al., Before the Subcomm. =

on Public Health and Environment of the House

Comm. on Interstate and Foreign Commerce,

92d Cong., 2d Sess., Ser. No. 92-30 (1971) ....-.- 13

HR. Rar. No. 1192, 86th Cong., Ist Sess. (1959)... 8

ER. Razr. No. 1463, 90th Cong., 2d Sess. (1968) .... 16

FR. Bap. No. 92-842, 92d Cong., 2d Sess. (1972) . 37,38

g. Bur. No. 1811, 85th Cong., 2d Sess. (1958) . -. 29; 30

§. Rup. No. 1353, 924 Cong., 24 Sess. (1968) 4, 24, 33, 34

S. Rupr. No. 92-1160, 92d Cong., 94 Sess. (1972) ..... 37

S. 3880, 85th Cong., 2d Sess., 104 Cong. Rec

19627 (1968) ..:..-----crereee ry pees 2%

S. 3342, § 501(a), 92d Cong., 2d Sess., 118 Cong. Ree.

§ 18013 (daily ed. Oct. 13, ee 17

Secondary Material

Amicus Curiae Brief of the Federal Aviation

Administration, filed in Lockheed Air Terminal,

Inc. v. City of Burbank, 318 F.Supp. 914

(OD.-Cal. 1970) .....-----0- err 17,40

Amicus Curiae Brief of the Federal Aviation

Administration, filed im Lockheed Air Terminal,

Inc. v. City of Burbank, 457 F.2d 667

Gi Ole TR) 20 ere cee 19, 40

FAA Director of Aviation Economics Memorandum,

“Beonomic Impact of Night Curfews,” Ee

Ne |, , GRMRT ea gee te Se ae eae B

Letter from FAA Western Regional Counsel to

San Diego Unified Port District, February 2, 1971 2

Letter from FAA Western Regional Director to

Executive Officer of Los Angeles County Board

of Supervisors, August 3,1971 ................. 21

Letter from FAA Eastern Regional Director to

Chairman, New York State Assembly Committee

on Industry and Economic Development,

February 22, 1972 ...... POSE ABE ae en ara 22

letter from FAA Southwest Regional Director to

Director, Houston International Airport,

I ooo nig gn one Kvin ceed nba ets 22

N.Y. Times, December 7, 1972 .................... 43

Opinion of the Department of Transportation and

the Federal Aviation Administration, filed in

Opinion of the Justices, Mass. , 271

“Pemeea A (U0T1) ............ 00.05... 19, 38, 41, 42

Report of the Secretary of Transportation to the

President and Congress for Fiscal Year 1969 ..... 8

Report of the Secretary of Transportation to the

President and Congress for Fiscal Year 1970 .... 10

International Materials

Australia :

Air Navigation Act 1920-1971, §26(2)(e) ........ 14

Air Navigation Regulation 82(2) ............... 14

Canada:

Aeronautics Act, Can. Rev. Star. 1970,

* ETE 2 Ee eee |

kir Regulations, SOR/61-10 (1960), as amended by

“— eyme/O0-G27 (1969), §104 .................... 14

Page

France:

C. Aviation Crv. art. B221-3 (1968) ............. 14

Ministry of Transport Decision, Apr. 4, 1968 ..*% 14

Ministry of Interior Circular No. 70-463 ........ 14

Germany :

Luftverkehrgesetz (Air Navigation Act) [1968],

BGBL IS. 1113, § TENNER er ger Pree 14

Jamaica: |

Civil Aviation Act 1966,

No hs tancds. on eee. 14

0 ER Oe Ann pcre Orcs aca 14

Japan:

Administrative Guidance, Ministry of

Transportation (Mar. 29, 1972) ........------ 14

Law No. 88, art. 6, para. 3 (1971) ...... Mee es 14

Switzerland:

Concession of the Operation of the Airport of

Geneva-Cointrin (Nov. 20, 1951, as amended

Oe nr eee ee 14

United Kingdom:

Civil Aviation Act 1971 c. 75, §29 .....-------> 14

Srat. Insts. 1971 No. 1686 ...........-------:: 14

Srat. Ines. 1971 No. 1687 .......-..------+-0°° 14

UK. Air Pilot, AGA 1160, (London-Heathrow)

ie 4 WE) oh. foo fee i.

IN THE

Supreme Court of the Anited States

Oocroszz Trem, 1972

No. 71-1637

Tue Crry or Bupsank, et al,

Appellants,

vé,

LocxnerD Am Tzrminat, Ino., et al.,

Appellees.

On Appeal From the United States Court of Appeals

for the Ninth Circuit

SUPPLEMENTAL BRIEF OF THE’ APPELLEES

IN RESPONSE TO THE BRIEF FOR

THE UNITED STATES AS AMICUS CURIAE

On January 11, 1973, four days before this case had

been scheduled for oral argument, the Solicitor General

filed a brief for the United States as amicus curiae

supporting appellant, the City of Burbank. Noting that

the Federal Aviation Administration had supported the

appellees in both courts below, the Solicitor General

said that the reversal of position contained in the brief

“reflects the views of the Department of Transportation,

of which the FAA is a constituent agency” (Br. 4).

“This Court, having been informed a few days earlier

of the Solicitor General’s intention, postponed argument

Wil February 20, 1973. The postponement has enabled

Wpellees to file this supplemental brief in response to

curiae brief for the United States.

sp cai

SUMMARY OF ARGUMENT

IL Airspace Management

A. Although the brief for the United States reverses

the position taken by the Federal Aviation Administra-

tion in the courts below, it nevertheless recognizes that

“airspace management” is an exclusively federal respon-

sibility (Br. 8, 12). Airspace management is a compre-

hensive concept which includes regulation of the air traffic

flow from the surface of air carrier airports such as

Hollywood-Burbank into the navigable airspace. If the

federal government is to be an effective airspace manager,

it seems inescapable that it must be able to utilize the

airspace 24 hours a day without the handicap of severe

and cumulatively debilitating restrictions imposed by

local governments. While appellees do not contend that

all airports must be treated alike or that curfews are

never appropriate, we urge that restrictions so crucial

to the system must come from the agency entrusted

by Congress with all aspects of airspace management, the

Federal Aviation Administration.

Congestion with its attendant threat to safety and

efficiency stands out as a major problem for the nation’s

air transportation system. A substantial limitation on

the hours during which aircraft operations are permitted

will result in increased congestion during the remaining

hours. Moreover, curfews compromise airspace manage-

ment by acting as a blockade on traffic flow, which extends

beyond the hours of the ban and affects all terminals with

connections to the restricted airport. Under the Federal

Aviation Act, a restriction on the national air transporta-

tion system having such adverse consequences should be

imposed, if at all, by a centralized authority able to weigh

the multiple national interests involved and to make ad-

justments necessary to keep the system operating efi-

olin Bi case

B. Twice within the last five years, Congress has

deliberately reaffirmed its decision, initially taken in 1958,

to place the Government’s regulatory authority over air-

_ graft noise in the FAA rather than some other agency.

Act of July 21, 1968, Pub. L. No. 90-411, 82 Stat. 395;

Noise Control Act of 1972, Pub. L. No. 92-574, §7, 86 Stat.

1289. Thus there is special significance to the amicus

curiae briefs filed on behalf of the FAA in each of the

lower courts. These briefs express the responsible fed-

eral agency’s conviction that local curfew ordinances

would aggravate congestion, interfere with efficient air-

space management, and thwart the intention of Congress.

In addition, the FAA has publicly opposed the imposi-

tion of curfews on commercial jet operations from the be-

ginning of the jet age in 1959 to the present time. This

long standing opposition to local restrictions on the use

of navigable airspace demonstrates the inaccuracy of the

Government’s contention (Br. 52) that any rejection by

the FAA of night curfews as a noise abatement measure

would have represented “a major change in federal

policy.”

II. Preemption

The brief for the United States founders upon the

fundamental misstatement of three key elements of the

legislative history of the Federal Aviation Act.

A. The Government erroneously asserts that the reg-

uation of aircraft noise was not the subject of any con-

greesional enactment prior to 1968 (Br. 23-24). The

lgislative history demonstrates conclusively that the

FAA’s broad authority to make regulations “for the

lection of persons and property on the ground” was

Written into the 1958 Act as a direct result of congres-

Maal concern with aircraft noise in the vicinity of the

& Ye airpo rts.

:

acini

B. Under the 1958 Act, Congress intended to vest

authority for all aspects of airspace management once

and for all in the Administrator of the FAA. To permit

a local entity with “any jurisdictional tie” to an airport

to disallocate airspace by imposing a night curfew, as

urged by the United States (Br. 46), would fractionalize

the authority for airspace management in direct opposi-

tion to the congressional purpose.

C. The brief for the United States incorrectly asserts

that the legislative history has not focused on the dis-

tinction between airport control by a proprietor and

airport control through the exercise of police power

(Br. 45). It was precisely this distinction that was ad-

vanced by the Secretary of Transportation and concurred

in by the Senate Commerce Committee in 1968. While

preserving certain rights for airport proprietors, the

Committee said that “State and local governments will

remain unable to use their police powers to control air-

craft noise by regulating the flight of aircraft.” S. Rep.

No. 1353, 90th Cong., 2d Sess. 6 (1968). The Government

has taken a “selective” view of the legislative history

which ignores this declaration of congressional intent,

attempts to characterize the proprietary-police power

distinction as an invention of the court of appeals, and

then argues that the distinction is not valid (Br. 36 n.27,

44-48). This constitutes a transparent attempt to rewrite

legislative history and thereby to thwart the explicit

intention of Congress.

The Government argues that the proprietary-police

power distinction would lead to the “bizarre result” of a

federal preemption policy that applies only to private air-

ports (U.S. Br. 45-46). This argument assumes that Con-

gress intended to preempt police power regulation only

in the rare situation where the airport is not owned by &

local governmental entity. Viewed correctly, however, the _

federal preemption intended by Congress applies nationy

wii ce

wide to all airports irrespective of the character of their

ownership and bars any purported exercise of police

power. Many of the nation’s airports are physically

located entirely or partially within the boundaries of a

governmental unit other than the entity which operates

the airport. To allow police power regulation of air-

craft noise by local entities with any jurisdictional tie

to an airport would be to invite chaos in the national

air transportation system.

¥ III. Conflict

The Order issued by the FAA Chief of the Air Traffic

Control Tower at Hollywood-Burbank stated that the

preferential runway procedures outlined therein “are

designed to reduce the community exposure to noise to

the lowest practicable minimum” (A. 412). The court

of appeals held that this “assertion represents a con-

sidered determination that measures of the magnitude

of that taken by the City of Burbank are beneath ‘the

lowest practicable minimum’” and are thus in conflict

with federal law (A. 426).

Since the United States recognizes that the FAA has

authority to “reject” the imposition of a curfew (Br. 52

n45), it is reduced to arguing that the FAA Order

must mean something different from what it says, differ-

eat from the interpretation placed on it by the FAA in

its amicus briefs below, and different from what each of

the lower courts found and held the Order to say and

mean. Thus, the Government contends without sup-

porting authority that the FAA Order “simply did not”

represent any consideration and rejection of a locally

night curfew (Br. 51). This is a pure assump-

Mi which is refuted by the language and logic of the

r and by the demonstrated instances of FAA oppo-

m to nighttime curfew restrictions over a period of

pa HE aike

IV. Commerce Clause

The cursory treatment of the Commerce Clause issues

in the brief for the United States fails to address at all

our contention (and the district court’s holding (A. 368,

406)) that the Burbank ordinance is invalid under the

second test of Southern Pacific Co. v. Arizona, 325 US.

761, 767 (1945), because it purports to operate in an

area where regulation should be prescribed by a single

authority. The Department of Transportation has pre-

viously indicated, however, that it is in complete agree-

ment with our position that air transportation requires

regulation by a single authority and that the FAA’s

authority should not be compromised by permitting the

enforcement of local laws or regulations regarding the

use of the navigable airspace. See Appendix A to Answer-

ing Brief of the Port Authority of New York and New

Jersey.

The Government’s brief asserts without citation (Br.

56) that although an approach evaluating the nationwide

effect of curfews “might be appropriate in some cases,

we believe it is not correct in the present case.” This

statement ignores the settled course of decision in this

Court that the local regulation should not be regarded

as an isolated phenomenon but should be weighed and

tested as if similar restrictions were adopted throughout

the United States (see Appellees’ Br. 72, 77). Evaluated

on this basis, night curfews on aircraft operations would

cause massive disruption in the national air transport

system, constituting an unreasonable burden on inter-

state commerce (F.F. 61-84, A. 394-401).

>

lL FEDERAL AIRSPACE MANAGEMENT RE-

QUIRES CONTROL OF THE HOURS DURING

WHICH AIRCRAFT MAY ENTER THE NAVIG-

ABLE AIRSPACE.

The brief for the United States recognizes that “air-

space management” is an exclusively federal responsi-

bility. Thus, the brief stafes:

“Among the areas in which there appears to be a

clear federal preemption of State regulation are the

following: ... airspace management, . . . committed to

exclusive federal regulation through the Federal Avia-

tion Administration (FAA).” (Br. 8.)

Again, the United States’ brief asserts:

“That there is a very substantial segment of air com-

merce, imcluding all aspects of airspace management,

flight navigation, and safety, from which the States

are excluded from the exercise of any regulatory

power by federal preemption is scarcely subject to

dispute....” (Br. 12; emphasis added.)

The position advanced by the United States cannot sur-

vive this concession. As we shall show, “airspace manage-

ment” is a comprehensive concept which includes manage-

ment of the hours during which aircraft can enter the

navigable airspace at Hollywood-Burbank and compara-

ble air carrier airports in the national air transportation

system. Once it is recognized that airspace management

is an exclusively federal responsibility, it is plain that

there is no room for local governmental units such as the

City of Burbank unilaterally to deny jet aircraft access

to the navigable airspace for one-third of each day at an

airport which serves more than one million passengers

each year (F'.F. 20, A. 381). Restrictions so crucial to the

_ system must come, if at all, from a centralized authority

nen yor

entrusted by Congress with all aspects of airspace man-

agement.*®

A. Regulation of the Hours of Aircraft Operations Is

a Critical Aspect of Federal Airspace Management.

If the federal government is to be an effective man-

ager of the nation’s navigable airspace, it seems inescap-

able that it must be able to utilize the airspace 24 hours

a day without the handicap of severe and cumulatively

debilitating restrictions imposed by local governments.

This is demonstrated by the record in this case, by the

positions taken by the responsible federal agencies, and

by the clear purpose of Congress.

Congestion, with attendant threat to safety and effi-

ciency, stands out as a major problem for the nation’s air

transportation system even under present circumstances

where operations can be spread over 24 hours. At the

trial, Benjamin Freiman, Chief of the Air Route Traffic

Control Center for the Southern California area, de-

scribed the air traffic situation in the Los Angeles Basin

as being “quite congested,” with “major congestion” oc-

curring between 6:00 p.m. and 9:30 p.m. (A. 192). When

the airspace is congested, Freiman testified, “we are mak-

ing use of all available airspace at that particular time”

(A. 193).

The Third Annual Report of the Secretary of Trans-

portation to the President and Congress for Fiscal Year

* We do not contend, as the United States implies (Br: 9, 56

that there must be “uniform national treatment” in which

i would be “treated alike” as to night curfews. We rec-

ize that different may require different treatment.

We contend, however, such decisions should be made by

a national agency, able to assess nationwide information

the multiple national interests involved, rather than my.

and

local

entities with “any jurisdictional tie,” as urged by the United

States (Br. 46).

1969, contains a graphic illustration of the congestion

problem : .

“On one day in July, a total of 1,927 aircraft in the

vicinity of New York City were delayed either in taking

off or landing — some for as long as 3 hours. From

this large east-coast hub, congestion spread to other

points. Once aircraft stacked up over New York’s air-

ports, other New York-beund aircraft were forced to sit

on the ground either at their points of origin or else-

where, all the while using up ramps originally intended

for incoming flights. Hence, stacks began to form at

other airports. ...” (p. 75.)

If there is to be a substantial limitation on the hours

during which aircraft operations are permitted, there is

bound to be an increase in the congestion during the re-

maining hours, especially during the hours immediately

before the curfew when congestion is already at its worst.

Under the Federal Aviation Act, a restriction on the air

transportation system having such adverse consequences

should be imposed, if at all, by a centralized authority

able to take into account the multiple national interests

involved.*

One of the clearest demonstrations of the need for

centralized coordination of restrictions on the hours of

aircraft operation is the experience with the FAA’s “flow

control” procedures. Flow control is a means of meter-

* In this connection, the court ap. sem correctly emphasized:

“Pursuant to this statutory scheme, the Administrator of

the FAA must balance considerations of safety, efficiency,

technological , common defense and environmental

protection in rocess of formulating rules and regulations

with to the use of the nation’s airspace... . If State

and governments were to be allowed to exercise su

plementary power in this area, they might conceivably

overprotective of one of the multiple values and upset the

delicate balance struck by the FAA under the aegis of fed-

eral law.” (A. 419.) :

pan) ean

control measures can involve restricting departures

during a given period, or establishing separation of air-

craft in time, altitude, or distance (F.F. 51, A. 390-91).

Initially, when the program was instituted in 1969, flow

control decisions were made by each of the 21 Air Route

Traffic Control Centers for its own area. However, in

April 1970, the FAA established a Central Flow Control

Facility in Washington, D.C., to correlate the information

for the entire system and to coordinate the flow control

decision making process (F.F. 52, A. 391). The Fourth

Annual Report of the Secretary of Transportation for

Fiscal Year 1970 describes the need for “centralized” con-

trol as follows:

“CeyrraLizep Frow Conrrou. One of the more per-

sistent problems plaguing air traffic in recent years has

been the tendency of isolated instances of congestion to

disrupt the flow of aircraft throughout the entire ATC

[Air Traffic Control] system. On April 27, 1970, FAA

took a significant step in dealing with this problem by

establishing as a permanent part of the ATC system the:

Central Flow Control Facility in Washington, D.C.

“Prior to the establishment of this facility, the sole

responsibility for flow control (i.e., controlling the flow

of traffic by restricting the number of aircraft moving

from one ARTCC [Air Route Traffic Control Center]

to another) in the contiguous United States rested with

each of 21 such centers. The shortcoming of this pro-

cedure was that each center made flow-control decisions

from the limited perspective of its own control area;

no center had enough information to make a judgment

based on the overall condition of the ATC system. ...”

>. 71.) | ,

_. oo

The flow control experience shows that even temporary

restrictions on aircraft operations, by holding aircraft

on the ground or increasing separation between aircraft,

have to be centrally coordinated if airspace management

is to be effective. Just as none of the 21 centers “had

enough information to make a judgment based upon the

overall condition” of the system, it is even more apparent

that no local governmental entity would have enough in-

formation to make a judgment as to the effect on this

system resulting from a lasting restriction such as a

curfew. This judgment can be made only by an entity

with sufficient information concerning the system and

with authority to make the adjustments necessary to

keep the system operating efficiently.

Curfews are highly contagious, and thus, as the record

shows, the Burbank curfew cannot be considered in isola-

| tion (F.F. 69, A. 396). The drastic effect of curfews on

federal airspace management can be fully appreciated

only in relation to flight scheduling across the six time

zones into which the United States is divided:

— If an 11 p.m. to 7 a.m. curfew on jet takeoffs were

in force at Burbank and at Portland, Continental Air

Lines could originate flights northbound or southbound

along its route from the Los Angeles area to Seattle

(all within the same time zone) only between 7 a.m. and

7 p.m. (F.F. 67, A. 396). Standing alone, the Burbank

curfew affects Seattle residents by limiting southbound

departures on this route to the period from 7 a.m. to 7

p.m. (F.F. 66, A. 395).

— If an 11 p.m. to 7 a.m. curfew on jet takeoffs were

in force over the entire route from Seattle to New

“aga Continental Air Lines would be able to origi-

q nate eastbound departures only between 7 a.m. and 2

a

aiish A ste

—If a nationwide 11 p.m. to 7 a.m. curfew on jet

takeoffs and landings were in force over the entire

route covering six time zones, an air carrier could origi-

nate an east-bound flight from Honolulu to New York

only between the hours of 7 a.m. and 9 a.m.

The drastic effect of curfews was described to subcom-

mittees of the House Commerce Committee as early as

December 4, 1962, by John R. Wiley, Director of Aviation,

Port of New York Authority. Mr. Wiley gave a detailed

description of the “progressive strangulation of air com-

merce between just one pair of cities, New York and

London, if each were to impose a 10 p.m. to 7 a.m. curfew,”

and then summed up the broader consequences as follows:

“[I)f this practice should be extended to other air-

ports throughout the world, east and west of New York

and London, and in different time zones, I believe we

can readily see that we would have a situation so

chaotic as to make the airplane worthless as an instru-

ment of world communication.” Hearings Before Sub-

comms. of the House Comm. on Interstate and Foreign

Commerce, 86th & 87th Cong. 528-30 (1963) [herein-

after cited “1959-1962 House Hearings on Aircraft

Noise Problems”.

Opposition to nighttime restrictions as a “blockade

on traffic flow” extending beyond the curfew period and

affecting “all airports within the traffic flow” was ex-

pressed by the Airport Operators Council International

(AOCT) in the 1971 House hearings in connection with

the Noise Control Act:

“A single curfew at a major U.S. airport acts as 4

blockade on traffic flow not only within the time of the

curfew, but also at other times for interstate and inter-

national aviation traffic operating in different time

zones. This problem is especially damaging to night-

cS aa

time traffic, often cargo traffic, which if thrown upon

the daytime schedule would crowd already heavily

burdened air traffic facilities. This in no way would be

in the best interest of the traveling public nor to the

nation’s economy.” Hearings on H. R. 5275, et al., Be-

fore the Subcomm. on Public Health and Environment

of the House Comm. on Interstate and Foreign Com-

merce, 92d Cong., 2d Sess., Ser. No. 92-30, at 483 (1971).

The brief for the United States refers to curfews “al-

ready in existence” at Washington National, Morristown,

New Jersey, London and “many major European cities,”

apparently attempting to show that states and localities

have curfew authority and that centralized management

is unnecessary (Br. 41-42). The examples, however, show

the opposite. Washington National Airport, where the

restriction is the result of a “voluntary agreement” of the

carriers, is operated by the Federal Aviation Administra-

tion. Virginians for Dulles v. Volpe, 344 F. Supp. 573

(E.D. Va. 1972). As to the restriction on nighttime opera-

tions imposed at Morristown Airport by a state court, the

United States has filed an action in the federal court in

New Jersey to compel the dissolution of that restriction.

United States v. Town of Morristown, Civil No. 1214-72,

D.N.J. (filed July 17, 1972). The prayer in that action

asks that the Town of Morristown, the Township of Han-

over and other defendants be compelled to file a joint

motion to modify the state court judgment to delete “the

restrictions imposed against the landing and takeoffs of

jet aircraft.”

Moreover, contrary to the government’s implication,

the foreign precedents firmly support our position that

curfews are a crucial aspect of airspace management

which require centralized regulation at.the national level.

_ Our investigation has failed to disclose any country in

, Pt ‘which airport curfews are imposed other than by the

prs, | Wea

national government concerned or under its direct super-

vision.*

port). tt of Civil Aviation may restrict airpost ue

if restriction justified by reasons of publie Boney ee also

Ministry of Interior Circular No. 70-463 (Oct. 17, 1970),

stating that decisions purporting to forbid aircraft ov

of cag Sain, een eomen samen Se Saat ot he ee

to an Administrative Transporta-

tion (Mar. 29, 1972) and after recommendations of the En-

vironmental Protection Department as required by Law No. 88,

The airports of Basel-Mulhouse operated pursuant to 4

Franco-Swiss treaty of 4 July 1949) pe Berlin (operated by

the Allies) are considered special cases exempt from the statu-

ie

wee A seni

The adverse effects of curfews on airspace manage-

ment are summarized in the Findings of Fact.* Based

upon testimony at the trial, the district court found that

curfews would increase congestion, aggravate the noise

problem, and cause a loss of efficiency:

“The imposition of curfew ordinances on a nation-

wide basis would result in a bunching of flights in

those hours immediately preceding the curfew. This

bunching of flights during these hours would have the

twofold effect of increasing an already serious con-

gestion problem and actually increasing, rather than

relieving, the noise problem by increasing flights in

the period of greatest annoyance to surrounding com-

munities. Such a result is totally inconsistent with

the objectives of the federal statutory and regulatory

scheme.” (FF. 78, A. 399.)

“The imposition of curfew ordinances on a nation-

wide basis would cause a serious loss of efficiency in

the use of the navigable airspace. .. .” (FF. 82, A. 400.)

It is utterly inconsistent for the United States, hav-

ing recognized that airspace management is an exclu-

sively federal domain, to argue that local authorities are

free to exercise their police power to impose curfews.

To insure safety and efficiency, federal airspace man-

agement must encompass decision-making power with

respect to hours of operation at airports like Hollywood-

Burbank.

————___

* The Findings in this case were based n the district court’s

“Memorandum for Use in pis er of P Findings of

Fact, Conclusions of Law, and Judgment” ( 278). The Find-

ings were settled by the court after a g on the objections

aie — (appellants here) (R. 312, 330, 340,

re ee

B. The FAA Has Long Regarded Local Curfews as Detri-

mental to Federal Airspace Management.

1. Congressional reliance on the FAA in noise abate-

ment matters.

In noise abatement matters, Congress has consistently

looked to the FAA in preference to other federal agen-

cies. As pointed out in our pringipal brief (pp. 26-27),

the Federal Aviation Act of 1958 vested plenary au-

thority for airspace management in the Federal Aviation

Administrator. The Administrator’s authority was in-

tended to include broad rulemaking power to regulate

* noise in the vicinity of airports, as we discuss at pp. 25-

28, infra.

The specific question of the agency to be responsible

for noise abatement matters arose in connection with the

1968 Amendment to the Act. At that time, the Adminis-

tration proposed a bill (H.R. 3400) which would have

empowered the Secretary of Transportation to prescribe

aircraft noise abatement rules and regulations.’ Hearings

on H.R. 3400, H.R. A age the Subcomm. on Trans-

portation and Aeronautics of the House Comm. on Inter-

state and Foreign Commerce, 90th Cong., 1st & 2nd Sess.,

Ser. No. 90-35, at 1 (1968). However, the bill reported

out of committee placed this authority in the Administra-

tor of the FAA. H.R. Rep. No. 1463, 90th Cong., 2nd.

Sess., at 1, 5 (1968) [hereinafter “H. R. Rep. No. 1463”).

Representative Pickle explained in the debates that the

House committee had “revested the noise functions in

the FAA... .” 114 Cong. Rec. 16387 (1968). And the

legislation ultimately enacted fixed responsibility in the

FAA. Pub. L. No. 90-411, 82 Stat. 395 (1968). >

In 1972 when Congress amended the noise abatement

provision of the Federal Aviation Act, it again rejected

an attempt to place noise abatement authority in an-

other agency. In the House, a floor amendment which

a ee

would have placed this authority in the Administrator

of the Environmental Protection Agency (EPA) was

rejected, and the bill which passed (H.R. 11021) on Feb-

ruary 29, 1972 continued to place aircraft noise abate-

ment authority in the Administrator of the FAA. 118

Cong. Rec. H 1525, 1532 (daily ed. Feb. 29, 1972). How-

ever, the bill passed by the Senate on October 13, 1972

would have placed noise abatement authority in the Ad-

ministrator of EPA. S, 8342, §501(a), 118 Cong. Rec.

S 18013 (daily ed. Oct. 13, 1972). When the Senate and

House versions were blended together into the form in

which the legislation was ultimately enacted, the final

authority to prescribe and amend noise abatement regu-

lations was retained by the FAA. Noise Control Act of

1972, Pub. L. No. 92-574, § 7, 86 Stat. 1239, reprinted as

Appendix A to our principal brief.

ae

Thus, twice within the last five years, Congress has

deliberately reaffirmed its decision, initially taken in

1958, to place the Government’s regulatory authority over

noise in the FAA and not in some other agency.

2. Position of the FAA in the lower courts.

Because Congress has vested in the FAA ultimate

authority for noise abatement regulations, the views of

the FAA are of great weight. In the trial court, the

United States Attorney for the Central District of Cali-

fornia filed an amicus curiae brief on behalf of the FAA,

contending that the FAA’s authority over all aspects

of airspace management leaves no room for local curfew

ordinances :

“In enacting the Federal Aviation Act of 1958, Con-

gress intended to establish the right of every citizen

to freedom of transit through the navigable airspace

_ of the United States and to facilitate the exercise of

_ .. that right by a federal regulatory scheme which would

ise See

promote both the efficient use of navigable airspace

and the efficiency of aircraft operations. In order to

achieve this purpose, Congress vested the Adminis-

trator of the FAA with ‘plenary’ and ‘unquestionable

authority for all aspects of airspace management.’

§. Rep. No. 1811, 85th Cong., 9d Sess. 14 (1958). In

this connection, there is no question but that Congress

intended that the Administrator deal with the problem

of airspace congestion in the exercise of his broad

authority over all aspects of airspace management.

Id. at 13-17....It is clear, however, that neither the

efficient use of navigable airspace nor the efficiency

of aircraft operations is served by local ordinances

which would prohibit the use of navigable airspace

for fully one-third of the hours available for such use.

And it is equally obvious that local curfew ordinances

necessarily aggravate the congestion problem by dras-

tically reducing the hours available for scheduled

services. Accordingly, such local legislation with ob-

jectives different than those which Congress has sought

to achieve must yield.” (pp. 10-11; emphasis added.)*

The FAA’s position with respect to the ordinance is

summed up in the conclusion to its brief, as follows:

“The Burbank jet aircraft curfew ordinance is in-

valid since it attempts to regulate in a field preempted

by Congress. The ordinance places an intolerable bur-

den on interstate and foreign commerce, by removing

from use during an eight-hour period each day, an

airport which is a vital part of the national airport

system. A prolifieration of this type of local ordinance

by non-proprietors of airports would stagnate and

each of the briefs for the FAA filed in the trial court

of appeals have been lodged with the Clerk. :

nm

destroy the national air transportation system... .”

(pp. 15-16).*

In the Court of Appeals for the Ninth Circuit, the

United States Attorney again filed an amicus curiae

brief on behalf of the FAA. The FAA brief, which sup-

ported the trial court’s opinion in all aspects, took the

following position on the preemption question:

“The efficient use of navigable airspace and the effi-

ciency of aircraft operations are clearly not served by

local ordinances that would prohibit the use of air-

space for large portions of each day —in Burbank’s

cease fully one-third of the available hours. See Find-

ings of Fact 70-77, 79-82. And equally obvious is the

fact that local curfew ordinances necessarily aggra-

vate congestion problems by reducing the hours avail-

able for scheduled services. See Finding of Fact 78.

Thus, the results produced by local regulation such as

that im question are clearly inconsistent with the in-

tention of Congress, as expressed by it and as con-

strued by the agency charged with administration of

the nation’s airspace. The efforts of the Administrator

would come to naught and the will of Congress would

be thwarted if every locality were to enact similar

laws. See Findings of Fact 78, 82.” (pp. 17-18; em-

phasis added.)

3. Opposition of FAA to curfews at other airports.

The opposition of the Administrator of the FAA to

locally imposed curfews on commercial jet operations

extends from the beginning of the commercial jet age

The of T; rtation took a remarkably similar

position in its “Opinion” fled in 1971 in the Supreme udicial

of Massachusetts, which is set forth as Exhibit to the

‘ Answering Brief of the Port Authority of New York and New

Jersey as Amicus Curiae filed in this case.

oY

“<5

a

a vee

in 1959 up to the present time. The frequently voiced

opposition by the FAA to locally imposed curfews totally

refutes the claim of the Brief for the United States

(p. 52) that any rejection by the FAA of night curfews as

a noise abatement measure would have represented

“s major change in federal policy.” In instance after

instance, the FAA has indicated opposition to curfews,

and has placed reliance instead on preferential runway

or other noise abatement procedures consistent with con-

tinued operation of the airport.

On October 28, 1959, the FAA announced that it had

under consideration a Special Civil Air Regulation for

Los Angeles which would have, among other things,

restricted jet operations between 10:00 p.m. and 7:00

a.m. 24 Fed. Reg. 9020 (1959). However, when adopted

in 1960, the Regulation omitted the proposed restriction

because of the FAA’s conclusion that such restrictions

could “create critically serious problems to all air trans-

portation patterns.” 25 Fed. Reg. 1764-65 (1960). The

FAA statement said:

“The proposed restriction on the use of the airport

by jet aircraft between the hours of 10 p.m. and 7 a.m.

under certain surface wind conditions has also been

reevaluated and this provision has been omitted from

the rule. The practice of prohibiting the use of various

airports during certain specific hours could create

critically serious problems to all air transportation

patterns. The network of airports throughout the

United States and the constant availability of these air-

ports are essential to the maintenance of a sound air

transportation system. The continuing growth of, pub-

lic acceptance of aviation as a major force in passenger

tranportation and the increasingly significant role of

commercial aviation in the nation’s economy are accom-

plishments which cannot be inhibited if the best interest

of the public is to be served. It was concluded therefore

_ curfew at airports which would have an effect on the

— aon

that the extent of relief from the noise problem which

this provision might have achieved would not have com-

pensated the degree of restriction it would have im-

posed on domestic and foreign Air Commerce.”

When the question of a night curfew arose again in

the Los Angeles area more than a decade later, the FAA

indicated its continued opposition to curfews in a letter

dated August 3, 1971 to the Executive Officer of the Los

Angeles County Board of Supervisors, who had inquired

regarding the feasibilty of restricting aircraft operations

between 11:00 a.m. and 7:00 p.m. at five general aviation

airports operated by Los Angeles County. The reply of

FAA Regional Director, which is set forth as Appendix A

to this Supplemental Brief, stated:

“...Noise abatement flight procedures and preferen-

tial runway use procedures have been applicable and

used at Los Angeles International Airport for some

years... . We believe that other restrictions, particu-

larly the type described in your letter, would place an

intolerable burden on air transportation and air com-

merce, and would be detrimental not only to the City

of Los Angeles but to the County of Los Angeles.

“Under the circumstances, we would not look favorably

on any restriction of aircraft operations such as

being studied by the Los Angeles County Board of

Supervisors... .”

On February 2, 1971, the FAA took a similar position

in a letter to the attorney for the San Diego Unified Port

District in opposition to the proposed curfew at the San

Diego International Airport. The letter of the FAA

Regional Counsel, which is set forth in Appendix B to

this Supplemental Brief, stated:

“Basically the FAA is opposed to any type of night

=

national air transportation system. In summary,

our legal position has been that the Federal Govern-

ment has preempted the authority to regulate the efii-

cient use of the airspace and to regulate aircraft noise

and, therefore, the imposing of a night curfew by

others is invalid and unconstitutional. .. os

On August 31, 1960 the FAA Administrator issued a

Special Civil Air Regulation for New York International

Airport with a primary objective of reducing noise. In

announcing this regulation, the Administrator stated

that the FAA was rejecting a suggestion “to prohibit

the operation of jet aircraft during nighttime hours” as

being “not compatible with the critical need in the New

York area for air transportation services.” 25 Fed. Reg.

8538 (1960).

Over eleven years later the invalidity of a curfew was

again stressed in New York State in a letter dated Febru-

ary 22, 1972 from the FAA Eastern Regional Director to

the Chairman of a New York State Assembly Committee

regarding a bill to prohibit landings and takeoffs between

11:00 p.m. and 7:00 a.m. The letter, which is set forth in

Appendix C, stated:

“We view the proposal as attempting to control the

operation of aircraft and use of the navigable airspace,

functions which are the particular domain of the Fed-

eral Government... .”

Similarly, in a letter dated May 10, 1972 to the Director

of the Houston Intercontinental Airport, the Southwest

Regional Director of the FAA stated his feeling that “the

curfew, if allowed to proliferate, will ultimately have a

deleterious effect on the National Aviation System be-

cause of its ‘ripple’ effect,” and he strongly recommended

against its adoption at the Houston Airport (letter set

forth as Appendix D to this Supplemental Brief).

— 23 —

The opposition of FAA officials to curfews reflects care-

ful evaluation of their practical consequences. Attached

as Appendix E to this Supplemental Brief is a memoran-

dum dated -March 10, 1972 by Herbert J. Guth, FAA

Director of Aviation Economics, entitled “Economic Im-

pact of Night Curfews at Airports,” the crux of which is

summed up in the first paragraph:

“The airlines, the airport operators, and the public

who use air transportation would be significantly

affected by the imposition of night curfews at United

States airports. Utilization would drop particularly in

the larger long-haul aircraft. Capacity in high density

markets would decrease and peaking at the major air-

ports would be intensified. The result would be in-

creased costs to the airlines, increased airport delays,

and increased prices for the purchase of air transpor-

tation.”

In sum, FAA has consistently found curfews on night

operations at air carrier airports comparable to Holly-

wood-Burbank to be detrimental to effective airspace

management and an invasion of a federally preempted

area. If federal airspace management is to achieve the

goals set for it by Congress, there can be no room for

curfews imposed by local jurisdiction through the exer-

cise of police power.

Il THE LEGISLATIVE HISTORY SHOWS THAT

CONGRESS INTENDED TO PREVENT LOCAL

JURISDICTIONS FROM EXERCISING POLICE

POWER IN MATTERS OF AIRSPACE MANAGE-

MENT, AIRCRAFT OPERATIONS AND AIR-

CRAFT NOISE.

The brief for the United States founders upon the

eeeetamental misstatement of three key elements of the

Bi

win care

— The Government asserts, as the cornerstone of its

argument, that the regulation of aircraft noise was not

the subject of any congressional enactment prior to

1968 (Br. 23-24). This pronouncement is wrong. The

legislative history demonstrates conclusively that the

FAA’s broad authority to make regulations “for the

protection of persons and property on the ground” was

written into the 1958 Act as a direct result of con-

gressional concern with the problem of aircraft noise

in the vicinity of the nation’s airports. 1959-1962 House

Hearings on Aircraft Noise Problems 543-44.

— Under the 1958 Act, Congress intended to vest

authority for all aspects of airspace management once

and for all in the Administrator of the FAA. To permit

a local entity with “any jurisdictional tie” to an airport

to disallocate airspace by imposing a night curfew, as

urged by the United States (Br. 46), would fractional- —

ize the authority for airspace management in direct

opposition to the congressional purpose.

— The brief for the United States incorrectly as-

serts that the legislative history “has not .. . focused

upon the distinction between airport control in a pro-

prietary capacity and airport control by means of the

exercise of police power” (Br. 45). It was precisely

this distinction that was accepted by the Senate Com-

merce Committee in 1968 as marking the limits of per-

missible local regulation. In reporting the 1968 noise

abatement amendment, the Senate committee concurred

in the representation of the Secretary of Transporta-

tion that “State and local governments will remain un-

able to use their police powers to control aircraft noise

by regulating the flight of aircraft.” S. Rep. No. 1353,

90th Cong., 2d Sess. 6 (1968). The Government has

attempted to bury this representation by the Secretary

and thereby to distort the limited reservation of power

to the airport proprietor intended by Congress into a

~_

license for any local entity having a jurisdictional tie

to regulate aircraft operations by police power.

A. In the 1958 Act the FAA Administrator Was Granted

Broad Rulemaking Authority To Deal With Aircraft

Noise.

We demonstrated in,our principal brief (pp. 28-29,

34-35) that the FAA has promulgated extensive noise

abatement regulations under the 1958 Act’s directive “to

prescribe air traffic rules and regulations . . . for the pro-

tection of persons and property on the ground,” 49 U.S.C.

§1348(c). The Government asserts that this provision of

the Act was included to provide protection “from insecti-

cides sprayed from the air” and “was wholly unrelated to

any congressional consideration of aircraft noise prob-

lems” (Br. 22-23). The legislative history demonstrates

otherwise.

The Government bases its “insecticide” argument on

the appearance of Congressman Preston before a House

subcommittee on July 1, 1958. Hearings on H.R. 12616

Before a Subcomm. of the House Comm. on Interstate and

Foreign Commerce, 85th Cong., 2d Sess. 267-69 (1958)

(hereinafter “House Hearings on the 1958 Act”]. This

member did in fact propose to add the words “for the pro-

tection of persons and property on the ground” to section

601 (a) (6) of the existing law. Id. at 268; compare id. with

Civil Aeronautics Act of 1938, §601(a)(6), 52 Stat. 1008.

His amendment was offered to provide the Administrator

with authority to control the dissemination of insecticides

in crop dusting and with the author’s recognition that

“there would be other mattersinvolved under this power

--” House Hearings on the 1958 Act, at 268.

_. Congressman Preston’s suggestion was not, however,

__ the source of the Administrator’s authority conferred by

; ion 1348(c) of 49 U.S.C. to regulate “for the protec-

oat, a

tion of .persons and property on the ground.” This

language originated in Senate testimony given two weeks

earlier by James T. Pyle, then Administrator of Civil

Aeronautics. On June 17, 1958 Administrator Pyle

recommended an amendment to section 601(a)(7)° of the

existing law to “make it unmistakably clear that the

Administrator has the authority to issue air traffic rules

for the protection of persons and property on the ground

as well as for the safe operation of aircraft.” Hearings

on 8. 3880 Before the Subcomm. on Aviation of the Senate

Comm. on Interstate and Foreign Commerce, 85th Cong.,

2d Sess. 245-46 (1958) ; [hereinafter “Senate Hearings on

the 1958 Act”]; see id. at 10. This recommendation was

accepted by the committee: the amended provision was

reported on July 9, 1958 as section 307 (c) of 8. 3880, 104

Cong. Rec. 13627 (1958), and was ultimately enacted as

section 307(c) of the 1958 Act, 49 U.S.C. §1348(c). It

provides:

“The Administrator is further authorized and di-

rected to prescribe air traffic rules and regulations

governing the flight of aircraft, for the navigation, pro-

tection, 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 pre-

vention of collision between aircraft, between aircraft

and land or water vehicles, and between aircraft and

airborne objects.” (Emphasis added.)

Unmistakable evidence that Congress intended, in

adopting section 1348(c) of 49 U.S.C., to provide the Ad-

ministrator with broad rulemaking authority to-regulate

noise in the vicinity of airports is found in the 1959-1962

House Hearings on Aircraft Noise Problems. On Decem-

ber 4, 1962 Chairman Oren Harris of the House Inter-

state and Foreign Commerce Committee discussed with

Administrator Halaby the FAA’s authority “to deal with

this subject [of noise], particularly with reference to zon-

ing and location of airports and all the things that are

necessary in its operation.” Id. at 543. Chairman Harris

stated :

“I can refer you to the committee report of the 86th

Congress, filed October 15, 1959. That was shortly after

the Congress approved the new Federal Aviation

Agency, of course, some time before you arrived on the

scene and accepted your tremendous responsibility.

ni ci

“We said in that report, and I am quoting page 7:

‘For many years, the committee has been engaged in

the study of aircraft noise problems which are con-

siderable in the vicinity of some of the Nation’s major

airports. In writing the Federal Aviation Act of 1958,

Congress expressly gave the new Federal Aviation

Agency authority to make regulations “for the protec-

tion of persons and property on the ground,” a broad

extension of the rulemaking authority which had been

granted to the Civil Aeronautics Board by the Civil

Aeronautics Act of 1938.’

“Now, if I recall, during the course of that legislation,

we had a colleague from Georgia, Mr. Prince Preston,

who brought to the attention of this committee a prob-

lem with reference to the dusting of cotton.

“The committee considered that problem, and if I

recall correctly, we decided not to limit this authority to

_ erop dusting, and we reminded the Congress in that

__. Teport that we did extend the broad rulemaking author-

“Now, I feel, Mr. Halaby, and you gentlemen of the

airport operators’ council, that the Congress did con-

sider this matter and the authority when the FAA Act

was passed in 1958, and I feel that there is legislative

history that does give you the authority.” Id. at 543-44.°

Chairman Harris was “a principal architect” of the

Federal Aviation Act of 1958. Id. at 545. His elucidation

that Congress adopted section 1348(c) of 49 U.S.C. to give

the Administrator “broad rulemaking authority” over air-

craft noise problems lays to rest the Government’s in-

secticide claim.

The Government is also in error in representing as fact,

without any supporting reference, that between 1958 and

1968 the authority conferred by 49 U.S.C. §1348(c) was

exercised by the Administrator only to the extent of

establishing preferential ranway requirements at “a few

selected noise-sensitive airports” (Br. 50). As early as

1962, noise abatement runway patterns were in use “in

every major airport in the United States.” Testimony of

CAB Chairman Alan S. Boyd on December 4, 1962, 1959-

1962 House Hearings on Aircraft Noise 507. And, of

course, the record in this case demonstrates that such

an FAA order was in effect at Hollywood-Burbank Air-

port (PX 30, A. 113, 453-62).

B. The Purpose of the 1958 Act Was To End Jurisdic-

tional Divisions and Vest Plenary Authority Over

eee

FAA Administrator.

The Federal Aviation Act of 1958 was designed to

correct two fundamental deficiencies existing at the time

. referred to by Chairman Harris is H.R. Rep. No.

1192, Cong., Ist Sess. (1959).

ec ws

of enactment with respect to the Government’s responsi-

bility for aviation matters. These shortcomings were

identified by the Senate Commerce Committee Report as

(1) the “diffusion of authority for the general regulation

of civil aeronautics” and (2) the “lack of clear statutory

authority for centralized airspace management.” S. Rep.

No. 1811, 85th Cong., 2d Sess. 10 (1958) [hereinafter

“8, Rep. No. 1811”]. The report notes that the question

of airspace management had been “hardly conceived”

when our basic aviation statutes, the Civil Aeronautics

Act of 1938, and the Air Commerce Act of 1926, were

enacted. Id. at 13. The years between 1938 and 1958 .

had witnessed a quadrupling of air traffic, the introduc-

tion of larger and faster aircraft which required more

airspace to maintain separation, and increased military

air operations. By 1958 the nation’s airspace had become

overcrowded and was described in the Senate Report as

“a diminishing resource.” Id. at 13-14.

Prior to adoption of the 1958 Act, responsibility for

the allocation of airspace was divided among the Civil

Aeronautics Board, the Civil Aeronautics Agency, the

President and the Secretary of Defense. This situation

was characterized in hearings on the 1958 Act by General

Quesada, then Chairman of the Airways Modernization

Board and later the first FAA Administrator, as follows:

“In this hodgepodge of authorities, the committee

method has been used to assign airspace on a case-by-

case basis resulting in long debate, serious delay, and

patchwork solutions. This method has contributed to

congested conditions in large sectors of the country,

forcing serious inflexibilities on both civil and defense

operations.” House Hearings on the 1958 Act, at 30.

This “splintering of airspace management” was one

zat the evils the 1958 Act was designed to eliminate. S.

oid Rep. No. 1811, at 15. This was accomplished, in the words

=

viii

of the Senate Report, “by vesting unquestionable au-

thority for all aspects of airspace management in the

Administrator of the new [Federal Aviation] Agency.”

Id. at 14. Thus Congress provided in section 1348 (a)

of 49 U.S.C. as follows: =

“The Administrator is authorized and directed to

develop plans for and formulate policy with respect to

the use of the navigable airspace; and assign by rule,

regulation, or order the use of the navigable airspace

under such terms, conditions, and limitations as he may

deem necessary in order to insure the safety of air-

craft and the efficient utilization of such airspace. ...”

Having vested this “plenary” authority in the Admin-

istrator, Congress was careful to guard against any fu-

ture “fractionalization” of his authority by providing in

section 1341(a) of 49 U.S.C. that:

“Tn the exercise of his duties and the discharge of

his responsibilities under this chapter, the Adminis-

trator shall not submit his decisions for the approval

of, nor be bound by the decisions or recommendations’

of, any committee, board, or other organization created

by Executive order.” S. Rup. No. 1811, at 15.

Congress also recognized in adopting the 1958 Act that .

“effective airspace management and planning is not a

matter involving airborne craft alone.” 8. Rep. No. 1811,

at 16. Airspace requirements generated by airport and

runway locations also demanded centralized regulation

and control. Congress provided the Administrator the

means to assure conformity to his plans and policies

for, and allocations of, airspace in sections 1349 and

1850 of 49 U.S.C. Section 1349 provides in substance

that no federal funds shall be expended for the construc-

tion or substantial alteration of civil or military airports

until the location, plans and layouts thereof have been

approved by the Administrator. Similarly, section 1350

eink Gal.

prohibits the establishment or construction of civil air-

ports not receiving federal funds, or even the substantial

alteration of a runway layout, without prior compliance

with regulations prescribed by the Administrator. See

also 49 U.S.C. §1353(a).

For its contention that the 1958 Act “was not under-

stood” to have divested states and their instrumentalities

of authority to impose dirport curfews (Br. 24-25), the

Government relies on the 1962 statements of the then

Deputy General Counsel of the FAA, James Hill. 1959-

1962 House Hearings on Aircraft Noise Problems, at 670,

699. Mr. Hill made his remarks as a panelist during a dis-

cussion of “existing legal rights of the private citizen who

is aggrieved by aircraft noise” (id. at 642).

The Government’s reliance on Mr. Hill is misplaced

for several reasons. His statements do not cast light

upon the intention of Congress; rather they are, in his

own words, “off-the-cuff” expressions of a lawyer’s

opinion (id. at 659, 672). Mr. Hill first stated that

“whether jets land at all or not at an airport or whether

they take off at night or not is up to the municipality” that

“owns the airport” (id. at 670). Then he acquiesced in the

statement that the FAA was “not sure whether or not air-

port operators can bar jets” (id. at 672-73). During the

discussion several instances of Mr. Hill’s confusion con-

cerning the scope of FAA authority and responsibility

were clarified by other panelists (e.g., id. at 670; com-

pare td. at 675 with id. at 676-77).

The panel discussion centered around the Court’s re-

cent decision in Griggs v. Allegheny County, 369 U.S. 84

(1962), and Mr. Hill was clearly anxious to admit of no

federal authority that would change the result in that

‘ease. 1959-1962 House Hearings on Aircraft Noise Prob-

_ dems, at 671; see also id. at 697. But at no time did Mr.

* suggest that state and local governments could reg-

a

ulate aircraft noise through an exercise of police power.

Rather he consistently referred to requirements of the

“eommunity that owns the airport” or the “municipality

that built the airport” (id. at 670, 671).

In sum, the regulation of air traffic flow from the sur-

face of an airport into the navigable airspace constitutes

a crucial aspect of the airspace management responsi-

bility vested in the FAA by the 1958 Act. Any govern-

mental entity which regulates the hours that this air

traffic may flow from the surface of an airport is engaged

in airspace management. The Department of Transporta-

tion has overruled the position taken by the FAA in each

of the lower courts and now urges the Court to hold

that State and local governments with any jurisdictional

tie to an airport be allowed to exercise their police power

to regulate by curfew the hours of airport operation.

Such a holding would be antithetical to the result sought

by the 1958 Act because it would allow local entities to

disallocate airspace and thereby fractionalize the au-

thority vested in the Administrator of the FAA.

CO. The 1968 Amendment Banned Any Exercise of Police

Power by Local Jurisdictions.

During the Senate hearing on the 1968 noise abatement

amendment, the Secretary of Transportation was asked

by Commerce Committee Chairman Monroney whether

State and local governments could “go beyond” the mini-

mum noise emission standards to be set by the FAA Ad-

ministrator under section 611, 49 U.S.C. §1431. Secre-

tary Boyd replied: E

“] do not think the State could. I would like to have

the opportunity to submit an opinion for the record.

“J would think that any authority would be related

to the airport itself, Mr. Chairman, but we would like

to submit a written opinion on that.” Hearing on 8.

ay oe

707 and H.R. 3400 Before the Aviation Subcomm. of

the Senate Comm. on Commerce, 90th Cong., 2d Sess.,

Ser. No. 90-72, at 29 (1968).

The letter submitted by the Secretary of Transporta-

tion in further response to Chairman Monroney’s ques-

tion is printed in the hearing (td. at 61) and quoted

extensively in the Senate Report. The report declares

that the Senate Committee concurs in the Secretary of

Transportation’s representation that “State and local

governments will remain unable to use their police

powers to control aircraft noise by regulating the flight

of aircraft.” S. Rep. No. 1353, 90th Cong., 2d Sess. 6

(1968) [hereinafter “8. Rep. No. 1353”]. The Senate Re-

port also expressly concurred in the following statement

by the Secretary of Transportation concerning the lim-

ited powers of “airport owners acting as proprietors”:

“However, the proposed legislation will not affect

the rights of a State or local public agency, as the

proprietor of an airport, from issuing regulations or

establishing requirements as to the permissible level

of noise which can be created by aircraft using the air-

port. Airport owners acting as proprietors can pres-

ently deny the use of their airports to aircraft on the

basis of noise considerations so long as such exclusion

is nondiscriminatory.” Id.

The Secretary’s letter also indicated that the 1968

amendment would “expand the Federal Government’s

Tole in a field already preempted” (td.), citing as author-

ity the district court opinion in American Airlines, Inc. v.

_ Town of Hempstead, 272 F. Supp. 226 (E.D.N.Y. 1967).

The district court held that an attempt to regulate air-

traft noise by local police power was unconstitutional on

- both preemption and conflict grounds. The Government

“Perports to find unexplained significance in the chronol-

y of the Secretary’s letter having been written to the

SEN a

Senate committee approximately three weeks before the

court of appeals affirmed Hempstead on the conflict

ground without reaching the preemption issue (Br. 47 n.

88). The chronology demonstrates, however, that the 1968

amendment was passed by both houses of Congress prior

to the Second Circuit’s affirmance of the district court

opinion. 114 Cong. Rec. 16399, 20931 (1968). And it was

the preemption aspect of the district court’s opinion that

was expressly concurred in by the Senate Report. S. Rep.

No. 1353, at 6.

In the face of this clear legislative history, there is no

merit to the suggestion of the brief filed by the United

States and expressing the views of the Department of

Transportation that, in adopting the 1968 amendment,

Congress had not “focused” on the distinction between re-

quirements established in a proprietary capacity and

regulations imposed by the exercise of police power (Br.

45). Indeed, the distinction is the very one which the

Secretary of Transportation drew in his letter to the

Senate committee and which the committee then adopted.

The Government also errs seriously when it attempts

to argue that this distinction, advanced by the Secretary

of Transportation and concurred in by the Congress, is

not valid (Br. 36 n.27, 44-48). This constitutes a blatant

attempt to rewrite legislative history and thereby to

thwart the explicit intention of Congress. In any event,

the Government’s challenge to the wisdom of Congress

is not persuasive.

The Government purports to demonstrate that the

distinction would lead to the “logically bizarre result” of

a federal preemption policy that applies only to private

airports (Br. 45-46). This is based on the assumption that

Congress intended to preempt police power regulation

only in the rare situation where the airport is not owned

by a local governmental entity. Viewed correctly, how-

ever, the federal preemption intended by Congress applies

ee

nationwide to all airports without regard to ownership

and precludes resort to any local police power regulation.

It was not the public or private character of the airport’s

ownership that Congress found determinative of federal

preemption, but rather whether the regulation sought to

be imposed was issued in a police or proprietary capacity.

Accordingly, the preemption recognized by the Senate

Report bars the purported application of police power to

any airport, irrespective ‘of the character of its owner-

ship, but would permit certain kinds of regulation in a

proprietary capacity by both publicly and privately

owned airports.

In making this distinction, Congress did not act

thoughtlessly or irresponsibly. As succinctly stated at

page 7 of the Answering Brief of the Port Authority

of New York and New Jersey as Amicus Curiae, Con-

gress intended to do no more than to preserve an ancient

“common-law right which inheres to the owner and oper-

ator of land.” For Congress to seek to preserve an inci-

dent of property ownership, whatever it may prove to

be,* from the broad sweep of federal preemption is rea-

sonable. What is unreasonable is to contend that this

preservation of a landlord’s right necessarily implies

& congressional intention to permit the States and each

of the multiple subdivisions surrounding most airports

to exercise their police power over these airports.

The Answering Brief of the Port Authority of New

York and New Jersey as Amicus Curiae illustrates at

pages 2-3 a number of situations where “local govern-

ments own and operate airports which are physically

ee nave of ehapiat pany rietors’ rights as such has not been

“Goor-aaig An apne anne oot rights would involve

a cation of cult constitutional, statutory and con-

Sok principles to a factual record which is not before the

», Court in this case.

=, pan

located in whole or in part within the boundaries of other

units of government.” Other illustrations of this condi-

tion were depicted at trial by the former head of the Civil

Aeronautics Administration (A. 292-93). And during

the 1959-1962 House Hearings on Aircraft Noise. Prob-

lems, FAA Administrator Halaby recounted additional

examples :

“For example, in Cincinnati the principal airport is in

another State, not even the same city or county. That

is true in Friendship. It is outside the city of Balti-

more. The San Francisco Airport is not in the County

of San Francisco....” (Id. at 532.)

Indeed, this situation exists at Hollywood-Burbank Air-

port where over 2,000 feet of one runway lie within the

City\of Los Angeles (F.F. 12, A. 346).

In light of the potential for interference which thus

exists at many of our nation’s airports, Congress doubt-

less recognized that to allow police power regulation of

aircraft noise by local entities with “any jurisdictional

tie” to an airport, as here urged by the Government

(Br. 46), would be to invite chaos in the national air

transportation system.

D. The 1972 Act Did Not Alter the Proprietary-Police

Power Distinction.

The legislative history of the Noise Control Act of

1972 is discussed at pages 40-47 of our principal brief.

This history demonstrates that the Act was designed not

to change the law with respect to federal preemption of

aircraft noise regulation. The House Report states:

“No provision of the bill is intended to alter in any

way the relationship between the authority of the Fed-

eral Government and that of State and local govern-

ments that existed with respect to matters covered by

in ie

section 611 of the Federal Aviation Act of 1958 prior

to the enactment of the bill.” H.R. Rep. No. 92-842,

92d Cong., 2d Sess. 10 (1972).

An identical statement is contained in the Senate Report.

§. Rep. No. 92-1160, 92d Cong., 2d Sess. 10-11 (1972).

Thus Congress’ 1968 declaration — that local attempts

to regulate aircraft noise through police power were fed-

erally preempted — was left undisturbed by the 1972 Act.

The Government purports to find support for Burbank’s

curfew ordinance in the recollection of Representative

Collier (Br. 42-43 & n.34). However, Mr. Collier was

addressing himself only to requirements imposed in a

proprietary capacity by “the local airport authority.”

118 Cong. Rec. H 1535-36 (daily ed. Feb. 29, 1972).

Representative Collier’s remarks provide no support for

an attempted police power regulation by a ) Ron-airport

proprietor.

In its brief, which reportedly reflects the views of the

Department of Transportation, the Government argues

that Burbank’s ordinance is not federally preempted

because Congress has not legislated “comprehensively”

on the subject of aircraft noise (Br. 38-39). This newly

discovered position of the Department of Transportation

is directly contrary to the views expressed by the Depart-

ment in connection with the 1972 Act. The Department’s

response to the draft environmental impact statement

(unpublished) prepared in connection with this legisla-

tion is set forth in the House Report. The Department’s

letter suggested that one of the paragraphs in the draft

statement should be revised to place more emphasis

on federal dominance of the field of aircraft noise

regulation :

“Par. 3: This paragraph is inconsistent. The Fed-

_ eral Government has assumed the dominant role for

= Noise (preempted for aircraft) in three areas:

ay es

“(a) P.L. 90-411: Standards for measurement and

evaluation, and for control of aircraft noise and sonic

boom.

“...” ELR. Bzp. No. 92-842, 92d Cong., 2d Sess. 36

(1972) (emphasis added).

The Government’s brief, when compared with these

comments on the 1972 Act and the Opinion of the Depart-

ment of Transportation filed in the Massachusetts case

in 1971, demonstrates that the Secretary of Transporta-

tion has an ever-changing view of the scope of federal

preemption with respect to aircraft noise regulation. It

is not, however, the vacillating view of the Secretary

that is determinative of federal preemption, but rather

the intent of Congress. Congress accepted the repre-

sentation of the Secretary of Transportation in 1968 that

local police power regulation in the area of aircraft noise

was federally preempted. This view of the law was left

unchanged by the 1972 Act. The intent of Congress is at

odds with the latest edition of the Secretary’s view of

the law, and the position now urged by the Government

must, accordingly, be rejected.

Il. THE CONFLICT BETWEEN THE BURBANK

ORDINANCE AND FEDERAL LAW IS NOT

DIMINISHED BY THE UNITED STATES’

BRIEF.

The Order issued by the FAA Chief of the Air Traffic

Control Tower at Hollywood-Burbank stated that the

preferential runway procedures outlined therein “are de-

signed to reduce the community exposure to noise to the

lowest practicable minimum” (A. 412). The court of

appeals held that this “assertion represents a considered

determination . . . that measures of the magnitude of that

taken by the City of Burbank are beneath ‘the lowest

practicable minimum’ ” and are thus in oo with fed-

eral law (A. 426).

ees

Since the United States recognizes that the FAA has

authority to “reject” the imposition of a curfew (Br. 52

n.45), the United States is reduced to arguing that the

FAA Order means something different from what it says,

different from the interpretation placed on it by the

FAA in its briefs in the lower courts, and different from

what the trial court and the court of appeals found and

held it to say and mean.* Thus, the brief for the United

States asserts that the “lowest practicable minimum”

language of the FAA Order “simply did not represent any

consideration and rejection of the possibility of a locally

imposed curfew on night operations” (Br. 51). Under-

standably enough, the brief for the United States offers

no citation to support its “simply did not” statement. It is

a@ pure assumption which is belied by the record and by

the FAA’s long-standing opposition to curfews.

The district court, having heard the testimony of FAA

Tower Chief Lemmer and other witnesses regarding the

Order, found that FAA had taken “in hand” the subject

of nighttime takeoffs :

“In issuing this order, said FAA Chief took in hand

the subject matter of nighttime takeoffs, and, based

upon his authority and expertise, acted.to minimize the

noise consequences of such operations.” (F.F. 56, A.

393.)

It is significant that the amicus brief for the FAA in the

courts below construed the Order just as did the court of

appeals, and contrary to the position now urged by the

brief for the United States. In the district court, the FAA

* As part of its effort to diminish the conflict, the United States

also asserts that between 1958 and 1968 the FAA exercised its

_ man Boyd

developed by the FAA “in every major airport in the United

; as

early as 1962. See p. 28, supra.

a See

brief attached a copy of the Order and described it as

establishing “noise abatement procedures which are de-

signed to reduce the community noise exposure to the

lowest practicable minimum” (Br. 6). The FAA brief in

the court of appeals takes the same position (Br. 9).

The experience a few years earlier at Los Angeles In-

ternational Airport, summarized at page 20-21, supra, is

inconsistent with the assumption made in the United

States’ brief that the Order at Burbank did not represent

“any consideration” of a curfew. At Los Angeles the

FAA explicitly considered a nighttime restriction on jet

operations at International Airport but omitted it from

the regulation finally adopted because such restrictions

“eould create critically serious problems to all air trans-

portation patterns.” 25 Fed. Reg. 1765 (1960).

Attempting to support its strained construction for the

FAA’s Burbank Order, the brief for the United States

goes on to say (Br. 52) that rejection by the FAA of a

night curfew at Burbank “would have represented

major change in federal policy.” Again, this statement is

unsupported. In fact, opposition to curfews has been &

frequently stated and long-standing tenet of the FAA, as

shown at pages 17-23, supra.

Curfews have been known, debated — and opposed —.

within the FAA for at least two decades. It strains credi-

bility to contend that the experienced FAA Chief at Hol-

lywood-Burbank Airport issued his Order regarding

nighttime operations without “any consideration” of 4

curfew. Yet that is the unsupported basis of the United

States’ attempt to avoid the force of the FAA’s Burbank

Order.*

ae em

IV. THE COMMERCE CLAUSE CONTINUES TO

STAND AS A BARRIER TO THE BURBANK

ORDINANCE.

The cursory treatment of the Commerce Clause issues

in the brief for the United States is deficient and puzzling

in many respects. The following points demonstrate the

"\ weakness of the Government’s position:

A. The United States’ btief does not address at all our

contention (and the district court’s holding (A. 368, 406) )

that the Burbank ordinance is invalid under the second

test of the Southern Pacific case because it purports to

operate in an area where regulation should be prescribed

by a single authority. This test and the correctness of

district court’s holding are discussed at pages 72-76 of

our principal brief. In similar circumstances the Depart-

ment of Transportation has evidenced complete agree-

ment that air commerce requires regulation by a single

authority. In its 1971 “Opinion” filed in the Supreme

Judicial Court of Massachusetts, the Department stated:

“Air transportation, perhaps more than any form

of commerce, requires regulation by a single authority.

Even before 600-mile per hour flights became the cus-

tom, Congress recognized this need by the establish-

ment of the Federal Aviation Agency. It would indeed

be a harmful and regressive step to permit a com-

promise of the FAA’s authority throigh permitting

the enforcement of local laws or regulations regarding

stated in the preceding section. Morever, in Port of New York

“4 v. Eastern Air Lines, Inc., 259 F. Supp. 745, 750

_ (E.D.N.Y. 1966), the FAA had written the Authority indicat-

_ ing its acquiescence in the restriction involved, which is to be

é contrasted with the FAA’s tion in the courts below to

~ the Burbank ordinance. And in Aircraft Owners & Pilots

~ Association v. Port Authority of New York, 305 F. Supp. 93,

__ 838-100 (E.D.N.Y. 1969), the court stressed that the Authority’s

ollie

the use of navigable airspace.” Reprinted im Answer-

ing Brief of the Port Authority of New York and New

Jersey as Amicus Curiae 12a-13a.

B. Without citation, the Government’s brief (p. 56)

asserts that although an approach evaluating the nation-

wide effect of curfews “might be appropriate in some

cases, we believe it is not correct in the present case.”

This statement ignores the settled course of decision in

this Court that the local regulation should not be re-

garded as an isolated phenomenon but should be weighed

and tested as if similar regulations were enacted through-

out the United States (see Appellees’ Br. 72, 77).° In-

deed, the Department of Transportation’s opinion in the

Massachusetts case acknowledges that the effect of

nationwide application of a local restriction should be

considered in matters involving the national air trans-

portation system:

“Such regulation cannot be considered solely ‘in the

accident of its particular circumstances.’ American

Airlines, Inc. v. Town of Hempstead, 272 F. Supp. 226,

231-232 (E.D. N.Y. 1967), for, if upheld, it would likely

spread to other major airports and the inevitable re-

sult would be to hobble the supersonic aircraft as an

instrument of national and world transportation.”

Reprinted im Answering Brief of the Port Authority of

New York and New Jersey as Amicus Curiae 12a.

Evaluated on a nationwide basis, night curfews on

aircraft operations would cause massive disruption of the

ae.

air transport system, constituting an unreasonable burden

on interstate commerce (F.F. 61-84; A. 394-401).

C. It is a straw man for the United States to say “we

do not believe that maintenance of an effective national

air transportation system requires prohibiting a curfew

at every airport” and “we do not think that all airports

need be treated alike” (Br. 56). Appellees do not contend

that all airports must be treated alike as to night curfews,

but rather that such decisions must be made by a na-

tional agency. Moreover, the findings detailing the “near

catastrophic effect” of a Burbank-type curfew were based

upon nationwide imposition, not at all airports, but only

at airports comparable to Hollywood-Burbank which

have scheduled interstate air carrier operations (A. 396).

The district court did not hold that all airports were to

be treated alike, but rather that airspace management

was a phase of the national commerce requiring regula-

tion by a single authority (A. 373).

D. The United States’ objection that the commerce

argument is “predicted upon speculation about ordi-

nances or rules not yet in existence” (Br. 56 n.48)

ignores the uncontradicted evidence and findings that

curfews, if upheld here, are “contagious” and “would be

adopted by virtually all cities surrounding airports”

(F.F. 69, A. 396). It also ignores current reports that

many cities are considering curfews and awaiting the

results of this litigation. See N.Y. Times, Dec. 7, 1972,

at 39, Col. 1.

[ae

ee

siiiaili ate

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

Warren CHRISTOPHER

’ Raps W. Dav

Mionagt D. ZimMERMAN

Attorneys for Appellees

Of Counsel:

O’Mztveny & Myzrs

Krerianp & Packarp

February 1973.

(1)

Appendix A

Department of Transportation

Federal Aviation Administration

Western Region

Los Angeles, California

8 Aug. 1971

Mr. James §. Mize

Executive Officer

Board of Supervisors

County of Los Angeles

383 Hall of Administration

Los Angeles, California 90012

Dear Mr. Mize:

This is in response to your letter of 23 July 1971 re-

porting that the Los Angeles County Board of Super-

visors has requested a report as to the feasibility of re-

stricting aircraft opérations at the airports operated by

Los Angeles County between the hours of 11:00 p.m. and

7:00 a.m. Your letter also states that similar restrictions

are needed at Los Angeles International Airport and re-

quests our favorable consideration for such restrictions.

Los Angeles County presently operates five general

aviation reliever type airports of which four (Compton

Municipal, El Monte, Wm. J. Fox Airfield, and Brackett

Field) have been developed, in part, by Federal funds

totaling over $5 million. All the airports operated by the

County are included in the National Airport Systems

Plan and each accommodates fixed base operators, flying

schools, and air taxi operators. There are slightly over

1000 aircraft based at the five airports. The Federal

Aviation Administration operates airport traffic service

tEl Monte and Brackett Field. The latter airport has an

(2)

airport traffic control tower constructed with Federal

funds by the Federal Aviation Administration at a cost of

$416,000 and ranked 76th out of 336 in the United States

for total aircraft operations in 1970.

We recognize the right of the airport proprietor to

regulate the use of the airport so long as that regulation

is reasonable and nondiscriminatory. In aceordance with

the requirements in regard to the airports for which Fed-

eral funds have been expanded, Los Angeles County has

agreed in its grant agreements with the Federal Aviation

Administration to keep the airports open to all types,

kinds, and classes of aeronautical use, and promised not

to prohibit or limit such use unless necessary for the safe

operation of the airport or necessary to serve the civil

aviation needs of the public. Your letter does not present

any information or evidence to support a determination

that closure of all County operated airports between the

hours of 11:00 p.m. and 7:00 a.m. is necessary from a

safety standpoint or required by the civil aviation needs

of the public. In fact, to discontinue use of these airports

for one third of the time would obviously be a substantial

loss to aviation and the public interest.

As you probably know, the legality of airport curfew

laws is involved in Lockheed Air Terminal, Inc. et al v.

City of Burbank, 318 F. Supp. 914 (C.D. Cal. 1970), pres-

ently on appeal to the Ninth Circuit United States Court

of Appeals from the judgment of the United States Dis-

trict Court for the Central District of California. In

essence the District Court concluded that air transporta-

tion “is a uniquely national operation in which the Fed-

eral interest is so dominant as to preclude the enfgrce-

ment of state or local laws such as the Burbank Curfew

Ordinance, on the same subject.” The District Court held

that the Burbank Curfew Ordinance was in conflict with

the Federal statutes and regulations, that it constituted

an invalid attempt to regulate national commerce, and

(3)

that enforcement of the ordinance would result in an in-

tolerable and unreasonable burden on interstate com-

merce. In reaching this conclusion, Judge Crary carefully

considered a previous California case entitled Stagg v.

Municipal Court, 2 Cal. App. 3d 318, 82 Cal. Rptr. 578

(1969) and found that it was distinguishable and unper-

suasive. That case involved an ordinance passed by the

City of Santa Monica which restricted jet aircraft take-

offs from the Santa Monica Municipal Airport between

the hours of 11:00 p.m. and 7:00 a.m. The Federal Avia-

tion Administration believes that the decision of the

United States District Court in Lockheed Air Terminal v.

City of Burbank is correct and we have filed an Amicus

Curiae brief in support of that decision in the Ninth

_ Circuit.

In regard to Los Angeles International Airport which

is owned and operated by the City of Los Angeles, we

have received no information that would indicate that Los

Angeles intends to adopt a curfew ordinance or that one

is necessary. Noise abatement flight procedures and

preferential runway use procedures have been applicable

and used at Los Angeles International Airport for some

years. In order.to acquaint you with these procedures, I

am taking the liberty of enclosing a copy of the affidavit

by Mr. Donald J. Haugen, Chief, Los Angeles Tower —

Terminal Radar Control, which contains detailed infor-

mation concerning those procedures currently in effect.

We believe that other restrictions, particularly the. type

described in your letter, would place an intolerable burden

on air transportation and air commerce, and would be

detrimental not only to the City of Los Angeles but to the

County of Los Angeles.

“fe Under the circumstances, we would not look favorably

mn any restriction of aircraft operations such as being

-@tadied by the Los Angeles County Board of Super-

(4)

visors. We will be glad to discuss this matter with the

Board at any time or provide them with additional in.

formation as needed.

Sincerely,

/s/ Arvin O. Basnight

ARVIN O. BASNIGHT

Director

(5)

Appendix B

Department of Transportation

Federal Aviation Administration

Western Region

Los Angeles, California

2 February 1972

Mr. Joseph D. Patello

Port Attorney

San Diego Unified Port District

$165 Pacific Highway

San Diego, California 92112

Dear Joe:

Thank you for your letter of 23 December 1971 advising

me of the discussions and pressures to impose a night

curfew on airport operations or to close the passenger

terminal building at Lindbergh Field, San Diego, Cali-

fornia, International Airport from midnight to 6:00 A.M.

As you point out, a number of the facilities at Lindbergh

Field have been constructed with Federal financial as-

sistance presently totaling about two million dollars, in-

cluding $104,000 to remodel the old terminal building.

Present requests for additional aid by the San Diego

Unified Port District, filed under the Federal Airport

and Airways Development Act, amount to about 1.6 mil-

lion dollars. In the prior executed agreements for Fed-

eral aid the Port has assured the Federal Government

that the airport will remain open to all types, kinds, and

classes of aeronautical use except under certain specified

conditions. The term “airport” is defined in both the

Federal Airport Act and the Federal Airport and Air-

ways Development Act to include airport buildings.

Basically the FAA is opposed to any type of night cur-

few at airports which would have an effect on the national

air transportation system. In summary, our legal posi-

__ tion has been that the Federal Government has pre-

the authority to regulate the efficient use of the

(6)

airspace and to regulate aircraft noise\and, therefore,

the imposing of a night curfew by others is invalid and

unconstitutional. This position has been clearly set forth

in the amicus curiae briefs filed in the Lockheed Air

Terminal, Inc. v. City of Burbank case in the United

States District Court and the United States Court of

Appeals, copies of which I am enclosing.

Contrary to popular belief there is no curfew at Wash-

ington National Airport. The FAA does have a volun-

tary agreement with the scheduled air carriers and other

users to limit turbojet operations, but it should be borne

in mind that Dulles International Airport and Baltimore

International Airport are available without limitation

to service the same metropolitan area, a situation which

does not exist at San Diego. Furthermore, the Adminis-

trator in taking such action in regard to Washington

National Airport is not only exercising his authority as

a proprietor but is doing so only as he deems necessary

to insure the efficient utilization of the airspace and to

protect the public from unnecessary aircraft noise.

I have deliberately delayed answering your letter await-

ing the 9th Circuit Decision in Burbank which is expected

momentarily inasmuch as the case was submitted in

early November 1971. In addition, I would assume that

there would be no rush to take any action of the type

contemplated which might affect air transportation serv-

‘ices during the Republican National Convention in

August.

Please advise me in regard to any developments and

thank you once again for your letter.

Sincerely, ' a

Original signed by

Ned K. Zartman

NED K. ZARTMAN

Regional Counsel

(7)

Appendix C0

Department of Transportation

Federal Aviation Administration

Eastern Region |

New York, N. Y.

22 Feb. 1972

Chairman, Committee on Industry and Economic

Development

New York State Assembly

New York State Capitol

Albany, New York 12224

Dear Mr. Chairman:

There has come to our attention your Bill No. 8839,

proposing to amend the General Business Law to pro-

hibit takeoff and landing of aircraft at airports between

11:00 p.m. and 7:00 a.m.

We view the proposal as. attempting to control the

operation of aircraft and use of the navigable airspace,

functions which are the particular domain of the Federal

Government [American Airlines v. Town of Hempstead,

Affd. 398 F 2d 369 (CA-2) Cert denied 393 US 1017]. For

reasons set forth in the cited case, we consider the pro-

posed legislation to be unconstitutional.

Should you desire further elaboration of our views, you

may wish to contact our Regional Counsel, Area Code 212,

995-2815.

Sincerely,

Original signed by:

Robert H. Stanton

GEORGE M. GARY

Director

aN

PS “a

(8)

Appendix D

Department of Transportation

Federal Aviation Administration

Southwestern Region

10 May 1972

Mr. Joseph A. Foster, Director

Department of Aviation

City of Houston

Houston Intercontinental Airport

2800 Terminal Road

Houston, Texas 77060

Dear Mr. Foster:

Your letter of 28 April 1972 requested our advice con-

cerning proposed restrictions on scheduled commercial

air carrier operations at William P. Hobby Airport,

Houston, Texas.

As you know, §308(a) of the Federal Aviation Act of

1958, as amended [49 U.S.C. §1349(a)] provides that

there shall be no exclusive right for the use of any landing

area or air navigation facility upon which Federal funds

have been expended. Additionally, each of the various

Federal Airport Aid Projects (FAAP) which have been

completed under the Federal Aid for Public Airport

Development Program [69 U.S.C. §1101, et seq.] for the

William P. Hobby Airport contain assurances from the

City of Houston to the effect that the airport to which

the project relates will be available for public use on

fair and reasonable terms and without unjust discrimina-

tion. In this connection, our records indicate that the City

of Houston has received some $4,799,032 of FAAP funds

for various projects in connection with the Hobby Air-

port.

For the sake of convenience, the following are our com-

ments in the same order as your proposed restrictions.

(9)

1. Restriction of Hobby Airport to scheduled commer-

cial air carrier operations using aircraft having not more

than two jet engines would, in our opinion, be discrimina-

tory against Braniff Airlines for the reason that Braniff

would be utilizing either Boeing 720’s (which have four

jet engines) or Boeing 727’s (which have three jet en-

gines). In this connection, it is apparent that the pro-

posed restriction would have no effect on the current

operations of Southwest Airlines which is operating Boe-

ing 737’s (which have two jet engines). For the foregoing

reason, we would strongly recommend that the City of

Houston not adopt this proposed restriction.

2. Restrict scheduled commercial air carrier opera-

tions to flights having “first landing” destinations of not

more than 300 nautical miles from the Hobby Airport.

Since this restriction would apply equally to all scheduled

air carriers, we feel that it would be the least objection-

able of all the proposed restrictions; however, we would

be remiss if we failed to point out this type of restriction

could become discriminatory in a very short time owing

to rapid changes in the field of air transportation. This

being so, while we would interpose no objection to the

restriction at this time, the situation could change and

require us to change our views at a later date. In this

connection, it is my understanding that the City desires to

strengthen this restriction by making it applicable to

fights having “ultimate” destinations. If this were to be

done, it would clearly discriminate against Braniff Air-

lines, as well as other interstate carriers, because South-

West Airlines is an intrastate carrier. Therefore, if this

change were to be made, we would have to recommend

against its adoption.

8. Impose a curfew on scheduled commercial air car-

Mer operations at Hobby Airport the effect of which

would restrict flights into and out of the airport during

# hours from 8:00 p.m. to 6:00 a.m. While it is true that

(10)

a few airports in the United States have found it neces.

sary to impose this type of curfew because of the threat of

ruinous litigation, our feeling is that the curfew, if al-

lowed to proliferate, will ultimately have a deleterious

affect on the National Aviation System because of its

“ripple” effect. The Federal Aviation Administration is

now making a general study of curfews to see what steps

can be taken to minimize the many serious problems that

inevitably arise as the use of curfews become more wide-

spread. For this reason, we consider the proposed curfew

at Hobby Airport as premature and, therefore, would

strongly recommend against its adoption at this time.

I greatly appreciate this opportunity to give you my

thoughts on the matter. I hope the foregoing will be of

some assistance to you.

Sincerely,

Original Signed By

Henry H. Newman

Director

(11)

Appendix E

Economic Impact of Night Curfews at Airports

10 March 1972

From: EC-200 [FAA Director of Aviation Economics]

To: EQ-1 [FAA Director of Environmental Quality]

Subj: Economic Impact of ‘Night Curfews at Airports

The airlines, the airport operators, and the public

who use air transportation would be significantly affected

by the imposition of night curfews at United States

airports. Utilization would drop particularly in the

larger long-haul aircraft. Capacity in high density

markets would decrease and peaking at the major air-

ports would be intensified. The result would be increased

costs to the airlines, increased airport delays, and in-

creased prices for the purchase of air transportation.

In order to measure the impact of an eight-hour curfew

on the airline industry, an analysis of the November

1971 Official Airline Guide Schedule Tape was completed.

The141 U.S. airports enplaning 100,000 or more air car-

rier passengers in 1970 were examined in detail. These

airports accounted for over 95 percent of the total US.

passenger traffic. Ten percent of the air carrier opera-

tions at these airports occurred during the period 2200-

0559 local time.

Table 1 is a summaty of the night operations by type

of service ranked by’ airport. The top five airports ex-

perienced 763 night operations which were 29 percent

of the total. The top 15 airports represent over 50 per-

cent of the total night operations. This table highlights

the high concentration of total night operations at a few

key airports and also the relative magnitude of night

@perations at these locations. Cargo operations at five

accounted for 41 percent of the total night cargo

(12)

flights. At these five airports, 62 percent of the total

cargo frequencies operated at night.

ALL-CARGO FREQUENCIES

AT TOP FIVE AIRPORTS

Percent

2200-0559 Daily of Day

ORD (O’Hare) 103 157 66

JFK (Kennedy) 76 132 58

LAX 44 81 54

(Los Angeles)

DTW (Detroit) 38-— 62 61

EWR (Newark) 32 42 76

293 474 62%

Significant international night operations occur at only

two airports —JFK with 21 and RNL with 10. This

is 60 percent of the total international night flights for all

the airports, but represent only 11 percent of the total

daily operations at these two airports.

The following table is the percent distribution of total

night operations by type of service:

Domestic Trunk ...... 50%

ME 30s fs ese 27%

Local Service ......... 19%

International ......... 2%

Gommmnter...... 5... 2%

Any supplemental or commuter airline that does not

publish a schedule in the Official Airline Guide is not

included i in these counts.

Table 2 is a summary of the U.S. air carrier production

of scheduled frequency and revenue airplane miles flown

by passenger aircraft, for domestic trunk and local serv-

ice airlines showing night operations, as a percent of

total day. This table highlights the longer average stage-

(13)

length of night operations versus the stage length for

total daily operations. Ten percent of the operations

occur during curfew, however, 13 percent of the revenue

miles flown occur during this period. Tables 3, 4, 5, and

6 contain the detail back-up by carrier for Table 2. Four-

teen percent of the domestic trunk revenue passenger

airplane mileage flown — close to 18 percent of the serv-

ice over 1,000 miles — would be curtailed or forced to be

rescheduled by the imposition of airport curfews. This

would imply a significant drop in average aircraft utiliza-

tion and eventually require an increased fleet size to

provide the necessary lift to accommodate the demand

for air transportation. These increased equipment costs —

would have to be passed on to the airline passenger.

Tables 3 and 5 also reflect the large amount of off-peak

flying in night coach service offered by Delta and Eastern

Airlines.

Exhibit 1 is a graph of the hourly distribution of the

1,000 daily operations scheduled at Los Angeles Interna-

tional Airport. Assuming that we could reschedule all

the night operations such that each hour during the 0600-

2159 time span would be approximately equal, we would

increase the number of operations in all but three hours

during the day.

Exhibit 2 reflects this revised hourly distribution of the

1,000 daily operations at Los Angeles.

Table 7 lists the number of flights by destination that

Would have to be rescheduled at Los Angeles in order

to comply with a national curfew. This number (223

fights) is greater than shown in Table 1 (134) because

itineludes flights that fall within the 0600-2159 time span

at Los Angeles but violates the curfew at the destination

Point. This table reflects the concentration of night op-

ation to a limited number of destinations.

(14)

Table 8 examines the passenger schedules between Los

Angeles and Chicago O’Hare Airport. There are four

competitors certificated to fly nonstop between Los An-

geles and Chicago. Table 9 summarizes by hour the 42

flights and over 7,500 seats being offered daily in this

market. Approximately 34 percent of the eastbound and

, 20 percent of the westbound capacity would be affected

by a curfew. This is visually portrayed by Exhibit 3.

The effective curfew hours at Los Angeles for Chicago

flights are: eastbound departures 1600-0559 and west.

bound arrivals 2200-0759.

The Air Transport Association, as well as others, have

expressed concern about the possibility of airport cur-

fews being imposed and their impact on the industry.

These data would seem to indicate that curfews would

have a profound economic effect. A number of airlines

have computer models which are capable of

developing airline schedules. We would recommend that

the ATA pursue this further and establish an airline

committee which could utilize these existing models

With this capability, it would arrive at more precise data

on additional industry fleet requirements, reduced cz .

ity, increased costs of operation, and additional airport

facility requirements as a result of airport curfews.

/s/ Herbert J. Guth

HERBERT J. GUTH

Director of Aviation Economics

(Tables omitted in printing)