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Revised April 25, 2017

U.S. Courts (continued)


A. J. Hodges Industries v. United States (1966) -- Action for damages for taking of avigation easement over land near military airbase. Held: Regular and frequent flights at lower altitude than previously, due to runway extension, constituted a new taking of avigation easement. Likewise, regular and frequent flights by larger and noisier aircraft than those flown previously constituted a new taking of avigation easement. (U.S. Ct. Claims; 174 Ct.Cl. 259, 355 F.2d 592)

Aaron v. United States (1963) -- In this action for compensation for the taking of an avigation easement, plaintiffs were entitled to compensation for an easement only with respect to overflights below 500 feet above ground. Plaintiffs lived in an "uncongested" area and the public ("navigable") airspace in uncongested areas commences at 500 feet altitude according to federal aviation regulations. (U.S. Ct. Claims; 160 Ct.Cl. 295, 311 F2d 798)

Adaman Mutual Water Co. et al. v. United States (1958) -- Action for damages for taking of avigation easements over various farmlands situated near an Air Force base. Held: The taking of an avigation easement by the government occurs when the government begins to operate aircraft regularly and frequently over a parcel of land at low altitudes, with the intention of continuing such flights indefinitely. (U.S. Ct. Claims; 143 Ct.Cl. 921, 181 F.Supp. 658)

Air Transport Association v. Crotti (1975) -- The State of California's use of "community noise equivalent levels" (CNELs) as a standard for measuring aircraft noise is not per se invalid as an invasion of a federally preempted area (the court did not rule on whether the state's CNEL-based regulations were invalid as applied). However, the use of "single event noise exposure levels" (SENELs) is invalid because use of this standard in effect regulates noise levels occurring when an aircraft is in flight, and regulation of aircraft in flight is the exclusive domain of the federal government. (N.D. Cal.; 389 F.Supp. 58)

Alvarado v. Memphis-Shelby County Airport Authority (1991) -- Property owners near Memphis International Airport sued the airport owner and the FAA for equitable relief from noise generated by the airport. The suit was brought in part under the Noise Control Act of 1972 (42 U.S.C. 4911), which permits citizen suits against the FAA "where there is alleged a failure of [the FAA] to perform any act or duty under section 1431 of Title 49 which is not discretionary...." The court found that the FAA's actions in reviewing and approving the airport's noise compatibility programs based on its regulations in 14 C.F.R. Part 150 were discretionary in nature and therefore dismissed the FAA as a defendant. (W.D. Tenn., Western Div.; 765 F.Supp. 422)

Arrow Air v. Port Authority of New York and New Jersey (1985) -- Air carrier sought to enjoin airport from prohibiting operation of aircraft that did not comply with its noise standards. Held: the noise restrictions were not preempted by FAA rules and were not administered in a discriminatory manner. Moreover, the restrictions did not violate the Constitution's commerce clause. (S.D. N.Y.; 602 F.Supp. 314)

Bacon v. United States (1961) -- Plaintiffs sued for damages due to noise from jet aircraft traffic at nearby Air Force base. Plaintiffs had bought their land between 1923 and 1946. The airfield began operation during World War II, and the types of operations at the base had changed over the years. Federal law sets a time limit for filing a claim for which the Court of Claims has jurisdiction -- six years from the time the claim accrues (28 USC 2501). Held: The limitation on action for damages ran from 1954, when flights began to seriously interfere with plaintiffs' use of property. Before 1954 flights had not seriously interfered with plaintiff's use of property, and the pre-1954 flights had reduced the value of plaintiffs' lands to a lesser degree. (U.S. Ct. Claims; 295 F.2d 936, 155 Ct.Cl. 441)

Blue Sky Entertainment v. Gardiner (1989) -- Plaintiffs sought to enjoin enforcement of a town law regulating small airports and parachute jump centers. Held: The local nature of the airports governed by the ordinance did not preclude application of the doctrine of federal preemption. Thus, the portion of the ordinance that required compliance with federal regulations was invalid, while the portion that required compliance with state and local laws was not. All regulation of in-flight conduct is preempted, as are regulations that duplicate federal regulations. (N.D. N.Y.; 711 F.Supp. 678)

Branning v. United States (1981) -- Plaintiff brought action for compensation for alleged taking of easement over his property as a result of noisy aircraft flying overhead from adjacent Marine Corps Air Station. Held: the introduction of noiser aircraft after plaintiff purchased the property created a new cause of action, even though earlier flights (fewer and less noisy) had constituted a partial taking. In addition, the court had a strong response to the government's attempt to exclude liability for noise from aircraft flying above "safe altitudes": "Minimum safe altitude and minimum noise levels are concerned with two different things. [Citation] While safety may be measured in terms of altitude, a reasonable noise level cannot be measured solely in terms of altitude." "This is a case of first impression in which the court may consider the altitude of the flights over the [plaintiff's] property, but must give primary consideration to the effects of aircraft noise where the government itself has adopted and published standards of compatibility of use of the subjacent property." (U.S. Ct. Claims; 654 F.2d 88, 228 Ct.Cl. 240)

Casey et al. v. Goulian et al. (2003) -- Plaintiffs brought state-law nuisance claims alleging that defendant pilots were involved in noisy and dangerous stunt-airplane flights over their homes. Defendants removed the action to federal court on the grounds that the state-law claims were preempted by federal aviation law. The court disallowed removal and remanded the case to state court, concluding that federal aviation statutes "did not take the subject of airplane interference with property rights and give it exclusively to the federal courts." (D. Mass; 273 F.Supp.2d 136)

Citizens Concerned About Jet Noise v. Dalton (1999) -- Residents near a Navy airfield challenged the environmental impact statement (EIS) for the Navy's decision to transfer 156 aircraft to the field. Among the deficiencies alleged by plaintiffs was the noise analysis. In particular, plaintiffs claimed that the EIS should have focused more on single noise events instead of relying so heavily on an annual-average metric for noise impacts. The court concluded: "Courts have consistently held that the choice of scientific methodology used in an EIS is within the sound discretion of the agency." The court found the EIS adequate in all respects. (E.D. Va.; 48 F.Supp.2d 582)

City of Cleveland v.City of Brook Park (1995) -- The City of Cleveland sued the City of Brook Park, pursuant to 28 U.S.C. 2201. Cleveland sought a declaratory judgment that certain of Brook Park's ordinances offend both the supremacy clause and the commerce clause of the United States Constitution, and an injunction against the enforcement of these ordinances. Both parties moved for summary judgment. Brook Park's motion for summary judgment was granted and Cleveland's motion for summary judgment was denied. (N.D. Ohio; 893 F.Supp. 742)

City of Dallas v. Southwest Airline (1973) -- The cities of Dallas and Fort Worth decided to cooperatively build a new regional commercial airport, foregoing competition between existing airports owned separately by each city. The cities agreed to phase out scheduled passenger service at the existing airports. Southwest Airline wanted to remain at Dallas's Love Field, and refused to move to the new airport. The court held that the prohibition on scheduled passenger service was invalid because it unjustly discriminated against a class of aircraft. In support, the court noted that the airport had permitted such flights in the past, it had the necessary facilities, and its intent was to suppress competition with the new airport. (This case was decided before enactment of the Airline Deregulation Act of 1978.) (N.D. Texas; 371 F.Supp. 1015)

City of New Orleans v. City of Kenner (1992) -- New Orleans planned to expand its airport, part of which is situated within Kenner. The Kenner City Council adopted a resolution that precluded any expansion of the airport without the express approval of Kenner. New Orleans filed for declaratory relief. Held: New Orleans' contract with the FAA (consequent to receiving funds from the FAA) did not allow New Orleans to ignore or circumvent any local government with jurisdiction over the ground on which expansion would take place. (The issue here, whether an airport can expand without the approval of any local jurisdictions in which the airport is located, is at the heart of the dispute between the City of Burbank and the Burbank-Glendale-Pasadena Airport -- see California appellate court cases.) (E.D. La., unpublished decision, Jan. 28, 1992; vacated Aug. 6, 1992 without statement, 971 F.2d 748)

City of Tipp City v. City of Dayton (2001) -- Tipp City filed a state law-based claim against Dayton for nuisance due to noise from aircraft departing Dayton International Airport, owned by the City of Dayton. Tipp City alleged that the airport's air traffic control tower had failed to implement "Tower Orders" restricting the pattern of departures from the airport. The Tower Orders were the result of an agreement between the City of Dayton and the FAA. Dayton sought to remove the case to federal court on the grounds that federal law preempted application of state law to the dispute. The court rejected the argument of "complete preemption," noting that the Airline Deregulation Act of 1978 had expressly allowed local authorities, acting as an owner of an airport, to restrict airport noise. The court held, however, that Tipp City's claim "arises under" federal law insofar as the Tower Orders appear to have the force of an FAA regulation, and thus the claim should be heard by a federal court. (S.D. Ohio; 204 F.R.D. 388)

Davison v. Department of Defense (1982) -- Plaintiffs challenged the environmental impact statement prepared for conversion of a military airport to civilian cargo use. The court found that the federal EIS adequately dealt with all issues except the disruption of sleep of nearby residents: "The EIS treatment of potential sleep disturbance is more notable for what it leaves out than what it includes." It therefore ordered the Department of the Air Force to prepare a supplemental EIS on the impact of the proposed air cargo facility on the sleeping habits of nearby residents. Plaintiffs had also challenged the reliance in the EIS on noise contour maps based on annual-average noise data. Although the court found "difficulties" in the presentation of the maps, it nevertheless found the maps "somewhat useful in providing the decisionmaker with a rough idea of the areas which will be most affected by the proposed use." "Although DNL averages and contour maps are heavily emphasized, a number of other noise measurement methodologies are discussed and employed in the EIS." (S.D. Ohio; 560 F.Supp. 1019).

Favro v. Port of Seattle (1995) -- Waiver language in "avigation" easements cannot reasonably be interpreted as a waiver of claims for damages arising prior to the granting of the easements. (W.D. Wash., C92-16347, unpublished decision)

Friends of East Hampton Airport v. Town of East Hampton (2015) -- Several air passenger services challenged East Hampton's restrictions on times of arrival and departure from its airport. The court held that the Airport Noise and Capacity Act does not preempt an airport owner's authority to restrict use of its airport by noisy aircraft, and noted that the town's 20-year contractual obligation, under an Airport Improvement Program grant, to keep the airport open to all traffic at all times had expired. It thus issued a preliminary injunction upholding the town's curfews on noisy aircraft, but declared the limitation on number of trips per week invalid. (E.D. NY; 152 F.Supp.3d 90) [The decision was appealed and the appellate court declared all of the challenged ordinances invalid. See Court of Appeals decision (Nov. 4, 2016).]

Hero Lands Company v. United States (1983) -- Owners of land adjacent to naval air station brought an action for inverse condemnation of avigation easements. Held: Flights over plaintiffs' land suitable for industrial development had not resulted in any substantial interference with plaintiffs' use and enjoyment of the land or any substantial diminution in value of the land. (U.S. Ct. Claims; 554 F.Supp. 1262)

Klein v. United States (1961) -- Plaintiffs in 1958 filed a claim to recover compensation for the taking of an avigation easement because of frequent flights of jet aircraft from a neighboring military airbase. The overflights began in 1947; claims against the government for damages must be filed within six years of the damage (28 USC 2501). Held: The filing of the claim was timely because a cause of action for taking of private property for public use does not accrue until conditions have reached that state where the extent of the government's use of an interference with plaintiffs' use and enjoyment of the property is known or ascertainable. In this case the damage to plaintiffs' property was not known or ascertainable until September 1954. (U.S. Ct. Claims; 152 Ct.Cl. 221) Compare Lacey v. United States (below).

Lacey v. United States (1979) -- Claim for taking of avigation easements was barred by six-year statute of limitations on claims against the U.S. government (28 USC 2501) because the extent of impairment of landowners' right by overflights were readily ascertainable long before the six years preceding the claim. (U.S. Ct. Claims; 595 F.2d 614)

Lacy Aviation Co. v. City of Los Angeles (2001) -- The "non-addition rule" at Van Nuys Airport, in the form of an ordinance enacted by the City of Los Angeles, limits the time certain "stage 2" aircraft (planes with older noise-suppression technology) may be parked at the airport. Stage-2 aircraft with noise levels of 77 db(A) or greater cannot be parked at the airport for more than 30 days each year. The court found this rule does not violate the Equal Protection Clause of the U.S. Constitution. (C.D. Cal., Case No. CV-00-09255-SVW, unpublished)

National Aviation v. City of Hayward (1976) -- A tenant of the Hayward Air Terminal, owned and operated by the City of Hayward, challenged the city's aircraft noise abatement ordinance. The court upheld the ordinance on the grounds that the authority for the ordinance was the city's status as proprietor of the airport, not its general police powers. This decision was subsequently cited with approval in a number of cases by the 9th Circuit Court of Appeals as well as the California Supreme Court (see Shepard's citations for this case.). (N.D. Cal.; 418 F.Supp. 417)

National Business Aviation Assn. v. City of Naples Airport Authority (2001) -- Plaintiff challenged the airport's decision to use a 60 dB noise contour in defining airport use, arguing that FAA regulations required a 65 dB metric. Not only is no such requirement found in FAA regulations, the court said, but such a rule would be contrary to FAA regulations. Of particular note in this case is the court's rejection of plaintiff's argument that, under the Supremacy Clause and Commerce Clause of the U.S. Constitution, an airport can prohibit stage-2 aircraft (those with older noise-suppression technology) only if the prohibition is both "reasonable" and "nondiscriminatory". The court was not convinced such a "reasonableness" requirement could be derived from the Constitution, but nevertheless addressed the plaintiff's assertion that the airport's ban on stage-2 jets was unreasonable and concluded that all of the points raised to establish unreasonableness were either irrelevant or without merit. (M.D. Fla.; 162 F.Supp.2d 1343)

United States v. City of Blue Ash (1978) -- The Cincinnati-Blue Ash Airport is owned by the City of Cincinnati but lies within the city limits of Blue Ash. Out of concern for the noise of aircraft departing the airport, the City of Blue Ash enacted an ordinance requiring pilots departing the airport to make specified turns in order to reduce aircraft noise in residential areas. The court declared the ordinance invalid because the federal government has preempted the field of regulating aircraft in flight. (S.D. Oh.; 487 F.Supp. 135; aff'd, 6th Cir., April 15, 1980, 621 F.2d 227)

United States v. County of Westchester (1983) -- The federal government sought to enjoin the county, owner of an airport, from enforcing a curfew on nighttime flights. Held: the curfew was imposed without knowledge of the noise emitted by aircraft operating at the airport and therefore was unreasonable, arbitrary, and discriminatory. In addition, the curfew violated the terms of capital grants the airport received from the FAA. (S.D. N.Y.; 571 F.Supp. 786)

Note: "To the extent [this decision has] stricken curfews for their failure to target the noisiest aircraft or the noisiest times of operation, [it has] been overturned by our opinion in Global Int'l Airways Corp. v. Port Auth. of N.Y. & N.J., 727 F.2d 246, 251 (2d Cir. 1984), which permits proprietors to reduce cumulative noise levels, as opposed to only targeting peak noise levels or the noise level produced by an individual aircraft." (National Helicopter Corp. of America v. City of New York, 137 F.3d 81, 2d Cir. 1998)

United States v. State of California (1986) -- The United States and an airline sought a declaratory judgment that the California Environmental Quality Act (CEQA) was preempted by federal law, and an injunction against enforcement of a Sacramento Superior Court order prohibiting an increase in Air Cal's flights to the South Lake Tahoe Airport pending preparation of an Environmental Impact Report in accordance with CEQA. The court abstained from a decision because of pending state court action (United States v. California and Air Cal v. Van de Kamp, on appeal in the California Court of Appeal, 3d District, from the Sacramento Superior Court). (E.D. Cal.; 639 F.Supp. 199)

United States v. State of New York (1982) -- The state transferred ownership of an airport from a specially created airport authority to the state Department of Transportation. At the same time it imposed a night curfew on all airport operations, during which all airport lighting and navigational aids were to be turned off. The court acknowledged the rule that a curfew imposed by the state pursuant to both its police and proprietary powers is entitled to analysis under the proprietor exception to federal supremacy in aviation matters. Nevertheless, the court held that the curfew was overbroad, unreasonable, and arbitrary because it extended to all aircraft regardless of the degree of aircraft noise. (N.D. NY; 552 F.Supp. 255, aff'd. per curiam on other grounds, 708 F.2d 92, 2d Cir., 1983)

Note: "To the extent [this decision has] stricken curfews for their failure to target the noisiest aircraft or the noisiest times of operation, [it has] been overturned by our opinion in Global Int'l Airways Corp. v. Port Auth. of N.Y. & N.J., 727 F.2d 246, 251 (2d Cir. 1984), which permits proprietors to reduce cumulative noise levels, as opposed to only targeting peak noise levels or the noise level produced by an individual aircraft." (National Helicopter Corp. of America v. City of New York, 137 F.3d 81, 2d Cir. 1998)

Western Air Lines v. Port Authority of New York and New Jersey (1986) -- The Port Authority operates Kennedy International, Newark International, and La Guardia airports. Western sought to enjoin application of a "perimeter rule" prohibiting nonstop flights to and from La Guardia in excess of 1,500 miles. The court held that the rule served a legitimate proprietary function because the airport operator had a legitimate interest in reducing ground congestion within a multi-airport system. Moreover, the rule did not unreasonably discriminate against certain air carriers because it had legitimate objectives. (S.D. NY; 658 F.Supp. 952)

Wing and a Prayer, Inc. v. City of San Jose (2001) -- In this case billionaire Larry Ellison challenged the right of San Jose to prohibit his private jet from flying into and out of San Jose International Airport during a curfew on flights. The judge ruled that the city's curfew did not apply to Ellison's jet, but stopped short of declaring the curfew unlawful. The decision posted here is on motions for interlocutory relief (prior to final judgment). (N.D. Cal., Case No. C 00-20018 JF, unpublished)

Note: This case was subsequently dismissed per an agreement between the parties, Dec. 18, 2002. See settlement agreement.

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California Courts


Anderson v. Souza (1952) -- The court upheld an injunction against certain operating conditions at a rural, private airfield because of noise inflicted on neighboring residents. This case was the first of a series of strong judicial statements in California on the liability of airports to residents for damages due to noise. The court emphasized that in this case the airport was private, not public, and ruled that "there is nothing to distinguish a private airport from any other private business with regard to enjoining operations which create a nuisance." At the same time the court reiterated the established principle that neighbors must "to a reasonable degree yield their desired privacy to the general welfare which is contributed to by the operation of legitimate business." The court concluded that "in the absence of a showing that the airport ... could not be operated in such a way as not to constitute a nuisance, complete abatement is beyond the rights of plaintiffs." (38 Cal.2d 825, 243 P.2d 497) (In contrast, see Loma Portal Civic Club v. American Airlines below, where plaintiff's sought to enjoin commercial flights at a public airport.)

Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) -- Federal preemption of local regulation of airport noise is not absolute. State law damage remedies remain available against an airport proprietor despite the fact that federal law precludes interference with commercial flight patterns and schedules, since federal law preempts only the exercise of police power to reduce airport noise. Airport proprietors have a duty under state law to reduce airport noise. Plaintiffs may elect to treat airport noise as a continuing or permanent nuisance. (39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866; cert. denied 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314) (This opinion is discussed extensively in Renz et al. v. 33d. Dist. Agricultural Assn. (1995, 6th Dist. Ct. App.), 39 Cal.App.4th 61, 46 Cal.Rtpr.2d 67. See subsequent decision in this case, Baker v. Burbank-Glendale-Pasadena Airport Authority, 1990, 2d Dist. Ct. App., below.)

City of San Jose v. Superior Court of Santa Clara County (Lands Unlimited) (1974) -- The court ordered decertification of a class action suit against a municipal airport in which plaintiffs sued for diminution in market value of their properties due to aircraft noise, vapor, dust, and vibration. Held: (1) Plaintiffs lacked commonality of facts. (2) By seeking damages for no more than diminution of market value, plaintiffs would be waiving, on behalf of all class members, possible assertions of damages for annoyance, inconvenience, discomfort, actual injuries to the lands, and costs of minimizing future damages. This would violate the plaintiffs' fiduciary duty to raise contentions reasonably expected to be raised by class members. (12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701)

Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) -- Homeowners sued the city, owner of L.A. International Airport, on nuisance and inverse condemnation theories for injuries due to excessive noise from aircraft using the airport. The court held that a nuisance cause of action arising from aircraft noise is not preempted by federal regulation of aviation. There is no reason in law or policy why the nuisance remedy provided by Civil Code s. 3479 should not apply. Moreover, the city's liability is not precluded by Civil Code s. 3482, which states that nothing done or maintained under express authority of statute can be deemed a nuisance. Statutes that broadly authorize or regulate airports or flights do not create legislative sanction for their maintenance as a nuisance. (26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329)

Lochlin v. City of Lafayette (1994) -- There is no requirement that actions for inverse condemnation be publically funded. (7 Cal.4th 327) (See also Smith v. County of Los Angeles, Cal. Ct. App. 1989.)

Loma Portal Civic Club v. American Airlines (1964) -- Residents sought an injunction against low-altitude flights to and from Lindbergh Field in San Diego over their homes, which plaintiffs characterized as a nuisance. Plaintiffs did not claim monetary damages. Held: Such injunctive relief is unavailable as a matter of public policy because "there is an overriding public interest in the operation of aircraft with federal airworthiness certificates in federally certified, scheduled passenger service, in a manner not creating imminent danger, and in accordance with applicable statutes and regulations." (61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d 548)

Nestle v. City of Santa Monica (1972) -- Noise nuisance from a government-owned airport is remediable by a nuisance action. Such action, because it has a statutory basis (Civil Code s. 3479, nuisance), is not barred by the California Tort Claims Act. (6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480)

Wilson v. Interlake Steel Co. (1982) -- The state Supreme Court concludes that noise alone, without some physical damage, does not support an action for trespass. The court's opinion discusses the traditional distinction between trespass and nuisance. (32 Cal.3d 229, 185 Cal.Rptr. 280)

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