# Amicus Curiae Brief — Burbank v. Lockheed Air Terminal, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 624 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A16. Public record. Not legal advice.