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Revised March 30, 2018

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City of Burbank v. Lockheed Air Terminal (1973) — This is the seminal decision on the issue whether local government can regulate aircraft noise. The court held that the general police powers of state and local authorities do not extend to aircraft noise because of federal preemption (authority invested in the Federal Aviation Administration and Environmental Protection Agency). However, the court left open what limits, if any, should be applied to the exercise of the proprietary rights of municipalities and counties that own and operate airports (see footnote 14). This question was later addressed in National Aviation v. City of Hayward (N.D. Cal., see below). (411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547)

Griggs v. Allegheny County (1962) — Extends the rule enunciated in Causby (see below) to local airport proprietors via the 14th Amendment. Airport was responsible for acquiring sufficient land adjacent to the airport to reduce the impact of aviation noise and, if it failed to do so, was liable for resulting damages from aircraft noise. (369 U.S. 84, 82 S.Ct. 531)

United States v. Causby (1946) — Military aircraft that repeatedly passed over a chicken farmer's land at altitude 83 feet constituted a taking by airport proprietor (the federal government). (328 U.S. 256)

United States v. Clarke (1980) — A statute permitting condemnation for public purpose of Indian lands means that a state must initiate formal judicial proceeding and pay just compensation in order to acquire title. The statute does not authorize state or local government to "condemn" Indian land by occupation, forcing the property owner into an action for inverse condemnation. The court's opinion discusses the "well-established distinction between condemnation actions and physical takings by governmental bodies that may entitle a landowner to sue for compensation." (445 U.S. 253)


Alaska Airlines, Inc. v. City of Long Beach (1991) — City-owner of airport did not lose the right to claim the proprietor exemption from federal preemption of municipal aircraft noise restrictions by reason of an ordinance requiring flight operators to indemnify the city for any judgment for nuisance, noise, inverse condemnation, or other damages awarded as a result of flight operations, where the city remained liable for noise and continued to be the proprietor of the airport. (9th Cir.; 951 F.2d 977, as amended on denial of rehearing)

Alaska Center for the Environment v. U.S. Forest Service (1999) — A helicopter ski- and hiking-guide operator was granted a one-year "special use" permit to operate in a national forest. Under Forest Service policy, one-year special use permits are not subject to the National Environmental Policy Act (NEPA), i.e., they are classified as "categorical exclusions". ACE challenged the issuance of the permit, arguing that the type of permit issued in this case did not properly fall within the Forest Service's categorical exclusions, and thus an environmental assessment or environmental impact statement was required before the permit could be issued. The district court granted summary judgment for the Forest Service on the grounds that the Forest Service properly relied on its categorical exclusion under NEPA and provided a reasonable explanation for doing so. (9th Cir.; 189 F.3d 851)

Alliance for Legal Action et al. v. FAA et al. (2003) — FedEx planned to build a large cargo-handling hub at the Piedmont Triad International Airport in North Carolina. A citizen's group challenged the environmental impact statement (EIS), alleging that: (1) the statement of the project's purpose was narrowly written so that the only alternatives considered were those that met the needs of FedEx, and (2) the examination of noise impacts was insufficient because it relied on faulty assumptions and did not take adequate account of nighttime operations. The court concluded that the EIS "was not perfect but it was adequate to support the agency's decision to approve the expansion project." (4th Cir.; unpublished)

Allison v. Department of Transportation (1990) — Individuals living in an "airpark" threatened by construction of the new Denver International Airport challenged the FAA's determination that the noise generated by the new airport would not constitute "use" of a nearby state park and wildlife refuge. The court found that the FAA erred in using inappropriate guidelines from 14 C.F.R. Part 150 to measure the effects of noise on the parks. The court concluded, however, that the FAA otherwise presented substantial evidence that airport noise would not constitute a "use" of the parklands, and therefore the FAA's erroneous use of Part 150 guidelines was not prejudicial error. (D.C. Cir; 908 F.2d 1024)

American Airlines, Inc. et al. v. FAA (2000) — This case is not about aircraft noise but about the authority of the FAA to ignore decisions of courts of law in arriving at its own administrative decisions. The court's opinion discusses this authority in detail. (5th Cir; 202 F.3d 788) The 10th Circuit Court in Arapahoe County Public Airport Authority v. FAA (below) relied on this case.

Appalachian Power Co. v. Environmental Protection Agency (2000) — In this case the court admonishes the EPA in strong language regarding the way in which routine use of "guidance" documents supplants statutorily prescribed procedures for formal rulemaking. The guidance documents at issue in this case involve technical concepts specific to the EPA, but the principles underlying the court's decision are clear and applicable to any federal agency, including the FAA. (D.C. Cir., April 14, 2000)

Arapahoe County Public Airport Authority v. FAA (2001) — This case is not about noise but is an important case about the FAA's authority to ignore decisions of state courts. The Arapahoe airport did not want to permit passenger service; the FAA insisted the airport had no choice. The court affirmed the FAA's final decision in which the FAA concluded it was not bound by a Colorado Supreme Court judgment favoring the airport. (10th Cir.; 242 F.3d 1213)

Argent v. United States (1996) — Landowners near Navy air station brought inverse condemnation action, alleging that constant noise from pilot training diminished the use and enjoyment of their property and amounted to an avigation easement or taking. The trial court granted summary judgment for the government. Appellate court reversed, holding: (1) inverse condemnation action is not precluded just because aircraft do not fly directly over plaintiffs' property; (2) summary judgment was not appropriate because there was genuine issue of material fact whether increased flight operations created second avigation easement within the period set by statute of limitation. (Fed. Cir.; 124 F.3d 1277)

British Airways Board v. Port Authority (Concorde I) (1977) — Airport proprietors can restrict use of the airport, subject to two restrictions: noise regulations imposed by the proprietor must not create an undue burden on interstate or foreign commerce and such restrictions may not unjustly discriminate between different categories of airport users. The court reversed the district court's order, contained in summary judgement, enjoining the Port Authority of N.Y. and N.J. from banning operations of the supersonic Concorde jet at JFK International Airport. (2d Cir.; 558 F.2d 75; district court opinion after remand, 437 F.Supp. 804)

British Airways Board v. Port Authority (Concorde II) (1977) — After Concorde I (see above) the Port Authority of N.Y. and N.J. continued its total ban on Concorde landings at Kennedy Airport, and delayed action on developing a noise standard applicable to all aircraft including the Concorde. The district court again enjoined the Port Authority from selectively prohibiting the Concorde from using the airport unless the prohibition were based on noise standards applied to all aircraft (437 F.Supp. 804). In this appeal the court affirmed the order of the district court "so far as it dissolves the ban on SST flights at Kennedy Airport and permits the Concorde to serve New York under conditions detailed in federal operations specifications. Our holding, however, does not deny the Port Authority the power to adopt a new, uniform and reasonable noise standard in the future ...." (2d Cir.; 564 F.2d 1002)

Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles (1992) — The airport is located in the jurisdiction of the City of Los Angeles. When the airport planned to extend a taxiway, the Los Angeles City Council enacted an ordinance that required the airport to submit any proposed development project to the City Planning Commission for prior review and approval. The court held: "[A] non-proprietor municipality may not exercise its police power to prohibit, delay, or otherwise condition the construction of runways and taxiways at a non-city-owned airport." "The problem with this Ordinance is that it conditions the construction and reconstruction of taxiways and runways on the prior approval of the City. This the City may not do. The proper placement of taxiways and runways is critical to the safety of takeoffs and landings and essential to the efficient management of the surrounding airspace. The regulation of runways and taxiways is thus a direct interference with the movements and operations of aircraft, and is therefore preempted by federal law." (9th Cir.; 979 F.2d 1338)

Citizens Against Burlington v. Busey (1991) — Citizens sued for judicial review of FAA approval of plans to expand Toledo Express Airport, claiming that the FAA's environmental impact statement should have compared the impacts of numerous alternatives to the airport's plan. The court held that the FAA complied with the law by analyzing the impacts of only two alternatives: the plan proposed by the airport governors and no expansion. (D.C. Cir.; 938 F.2d 190)

City and County of San Francisco v. Federal Aviation Administration (1991) — In 1978 the city's Airports Commission adopted a noise abatement resolution, the practical effect of which was to permit only stage-3 (most quiet) aircraft and certain "grandfathered" stage-2 aircraft at the airport after Jan. 1, 1985. As a result, Burlington Air Express, an air cargo carrier, was prohibited from operating certain aircraft at the airport after that date because the aircraft were not certified as stage 2. In fact, the planes were stage 1 (noisiest) and retrofitted to meet stage-2 standards. In March 1985 the FAA certified the Burlington aircraft as stage 2, and Burlington applied to the city for a waiver from the 1978 regulations. The waiver was denied on the grounds that the stage-2 certification had not been made before the Jan. 1, 1985 deadline. Burlington filed a complaint with the FAA. Consequently, the city's applications for FAA Airport Improvement Program (AIP) grants for 1986 - 1989 were denied by the FAA on the grounds that the city had "unjustly discriminated" against certain types of aircraft through its 1978 regulation, thus violating assurances given by the city as a condition of earlier AIP grants.

An administrative law judge hearing Burlington's complaint ruled that, since there was substantial evidence that the Burlington aircraft were no noiser than many other aircraft permitted at the airport, the city had breached its earlier assurance that it would not "unjustly discriminate" against types of aircraft. The FAA Administrator affirmed, and the city petitioned for review by the court. The court upheld the FAA decision, reaffirming that airport operators may only adopt noise control regulations that do not "unjustly discriminate" against types of aircraft. (9th Cir.; 942 F.2d 1391)

Citizens Association of Georgetown et al. v. FAA (2018) — Plaintiffs alleged that the FAA failed to comply with environmental and historic preservation laws when assessing the noise impacts of new departure procedures for Washington National Airport, part of the FAA's "NextGen" redesign of air traffic to and from metropolitan airports in the U.S. The court dismissed the case on the grounds that plaintiffs' petition was not filed in a timely manner and plaintiffs had no reasonable grounds for delay. (D.C. Circuit; reporter TBD). (Compare this decision with City of Phoenix v. FAA, where another panel of the D.C. Circuit Court came to the opposition conclusion on the issue of filing delay.)

City of Blue Ash v. McLucas (1979) — City, site of an airport owned by Cincinnati, sought a court order requiring the FAA to honor an agreement between the two cities that jet aircraft would not be allowed to use a new runway at the airport. The agreement was cited in the environmental impact statement (EIS) for the runway. After construction of the runway the FAA issued a notice that the airport was closed to jet aircraft "not meeting FAR 36 noise limits." The City demanded that the notice be changed to an unqualified statement that the airport is closed to jet aircraft, and the FAA refused. The City's suit alleged that the FAA's action violated the National Environmental Policy Act (NEPA). The court held that, although the agreements were acknowledged in the EIS, there was no violation of NEPA. Moreover, the court said, because the FAA was not a party to the agreements between the cities, it was not a proper defendant. In order to enforce the agreement, plaintiff should take action against Cincinnati (in fact, such a suit was filed in state court). (6th Cir.; 596 F.2d 709)

City of Bridgeton v. Slater (2000) — One issue in this case was the requirement in the Airport and Airway Improvement Act requiring the FAA to determine that an airport project is consistent with the plans of local jurisdictions before it can award money for the project. In its long-running battle with St. Louis over expansion of St. Louis International Airport, Bridgeton adopted an ordinance effectively blocking expansion of the airport. The court concluded that the Act requires only "reasonable consistency" between a project and local zoning plans, not perfect consistency with the plans of every affected municipality. (8th Cir.; 212 F.3d 448)

Note: Shortly after this decision, a Missouri appellate court confirmed that Bridgeton lacked authority under state law to block expansion of the St. Louis airport; see City of Bridgeton v. City of St. Louis, April 2000.

City of Grapevine v. Dept. of Transportation (1994) — Individuals and local governments challenged the FAA's environmental impact statement on expansion of Dallas/Fort Worth Airport. Held: the FAA complied with the National Environmental Policy Act requirement that the EIS show that the FAA had taken a "hard look" at the environmental consequences of the airport expansion, even though the FAA determined that elements of the project, e.g., surface transportation improvements, could be excluded from detailed consideration in the EIS. The court found no basis for holding that the FAA could not consider the airport's economic goals in the EIS, and concluded that the FAA's statement of the purpose of the airport expansion did not improperly constrain its consideration of alternatives in the EIS. (D.C. Cir.; 17 F.3d 1502; cert. denied 115 S.Ct. 635)

City of Houston v. Federal Aviation Administration (1982) — The FAA, as owner-operator of both Washington National and Dulles International airports, sought to increase business at the less popular Dulles by permitting "long-haul" flights only at Dulles. It imposed a "perimeter rule" that prohibited air carriers from operating nonstop flights between National and any airport more than 1,000 statute miles away. The City of Houston and American Airlines challenged the rule. The court held that because the FAA was acting as the airport's proprietor and not as a regulatory agency, the rule was valid under the "proprietor exception" embodied in the Federal Aviation Act (now 49 U.S.C. 41713(b)(3)). (5th Cir.; 679 F.2d 1184)

City of Los Angeles v. Federal Aviation Administration and City of Burbank v. Federal Aviation Administration (1998) — For years the Burbank-Glendale-Pasadena Airport Authority and the FAA have planned to expand and modernize the Burbank-Glendale-Pasadena Airport. The federal government would help fund an expansion that would nearly double the number of gates, triple the number of parking spaces, and quadruple the size of the terminal. The project would also move the terminal, now perilously close to runway 8.

The FAA and the Authority drafted an Environmental Impact Statement (EIS) to comply with federal law and an Environmental Impact Report (EIR) as California law requires. The EIR/EIS projected that passenger demand for the airport would grow rapidly regardless of whether the project is completed, and that terminal expansion would barely affect usage. The City of Los Angeles challenged this conclusion in state court. The Superior Court ordered the Authority to reconsider the environmental impacts of the project on the assumption that the project would cause significantly increased demand. The Authority prepared a supplemental EIR reflecting this assumption and approved the project anyway. Satisfied, the Superior Court held that the revised EIR complied with state requirements (that decision is currently on appeal). The FAA made no similar changes in the final EIS and approved the project. Los Angeles and the City of Burbank appealed.

The cities argue that the demand projections are a finding of fact that must be supported by substantial evidence. They point to past environmental impact statements that predicted that a bigger terminal would increase use. But, the court ruled, "an agency isn't committed to a prediction forever; the FAA was entitled to reconsider its analysis in light of new experience at Burbank and other airports." Moreover, the court said, "predicting demand for the airport in 15 years is not so much a factual finding as a prognostication and is due more deference."

The cities also complain that the FAA has not adequately analyzed the noise impacts of potentially different take-off and landing patterns once the terminal is rebuilt further away from runway 8. The cities point to one study that assumed possible use of runway 8 much greater than the FAA assumes. Again, the court held, "the FAA's ultimate determination is due deference." (9th Cir.; 138 F.3d 806)

City of Phoenix v. FAA (2017) — The FAA is engaged in rerouting air traffic at airports throughout the U.S. as part of its "NextGen" program of improving air traffic management. Plaintiffs challenged the FAA's manner of rerouting traffic at Sky Harbor Airport in Phoenix, alleging that the FAA did not act transparently, as required by law, while planning new arrival and departure routes for Sky Harbor. In particular, plaintiffs showed that the FAA did not consult with Phoenix officials or the general public. The court found that in this respect the FAA acted contrary to the law.

In addition, Under the National Environmental Policy Act (NEPA), federal agencies must assess and disclose the environmental impacts of “major actions" prior to taking those actions. However, an agency may categorically exclude certain actions from environmental review based on criteria established by the Congress, as long as extraordinary circumstances do not exist. Under the FAA’s own regulations, extraordinary circumstances exist when an action’s effects “are likely to be highly controversial on environmental grounds” (FAA Order No. 1050.1E, Environmental Impacts: Policies and Procedures, ¶ 304i, 2004). When designing new routes for Sky Harbor Airport, the FAA determined that the new routes were “not likely to be highly controversial on environmental grounds,” and thus determined that no extraordinary circumstances existed. The court found that determination arbitrary and capricious. It thus vacated the FAA's order implementing the new flight routes and procedures at Sky Harbor, and remanded the matter to the FAA for further proceedings consistent with its opinion. (D.C. Cir.; 869 F.3d 963)

City of Pompano Beach v. FAA (1985) — The FAA had determined that the city, owner of an airport, had unjustly discriminated against an applicant for a lease at the airport, and thus had not complied with the terms of the deed that transferred ownership of the airport property from the U.S. to the city. The court upheld the FAA's action. (The opinion is a good source of case law on judicial review of FAA administrative decisions.) (11th Cir.; 774 F.2d 1529)

Cleveland v. Piper Aircraft Corp. (1993) — By inserting a "savings clause" in the Federal Aviation Act of 1958, Congress intended that state common law shall stand side by side the system of federal regulation of aviation. ("Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.") Thus, even though award of tort damages for injury due to defective aircraft may have the same effect as direct state regulation of aircraft safety, state law does not, as a matter of law, invade the federally reserved exclusive right to regulate air safety. (10th Cir.; 985 F.2d 1438)

Communities, Inc. v. Busey (1992) — After the Federal Aviation Administration approved an expansion plan for the Louisville (Kentucky) airport, the community surrounding the airport petitioned for review. (This expansion plan included a buyout of three complete neighborhoods surrounding the airport.) Petitioners alleged that the expansion violated the Airport and Airway Improvement Act because new aircraft noise due to the expansion would "use" certain historic and park areas outside the "noise impact area" defined by the FAA, and that the FAA failed to properly evaluate alternative plans that would protect those areas. The Court of Appeals held, inter alia, that the methodology the FAA used to estimate the "noise impact area" (a cumulative averaging methodology) is not arbitrary and capricious and the FAA is not required to use other methodologies, e.g., estimates based on the impact of individual noise events. (6th Cir.; 956 F.2d 619)

Condor Corp. v. City of St. Paul (1990) — The court ruled that, since there is no conflict between the city's regulatory power over land use and federal regulation of airspace, there is no federal preemption of the city's ordinance restricting locations of heliports. (8th Cir.; 912 F.2d 215)

County of Tooele v. U.S. Dept. Agriculture et al. (2001) — Tooele County owns an airport that straddles the Nevada-Utah border. Defendant Ventura owns land in Nevada next to the airport and on which he had built a mobile home park. Because FAA regulations prohibit a runway so close to a mobile home park, the county sought an injunction preventing development of the mobile home park, on the grounds that the park is a private nuisance. The court upheld denial of the injunction, finding that the county was unlikely to succeed on the merits of the case, in particular that it was unlikely that the mobile home park would be found to interfere unreasonably with the airport. The court does not offer any reasons for this. Instead, it cites a Second Circuit opinion that "if the county were to prevail on its nuisance claim, then it will have taken some of defendant's property rights without compensation," in violation of the U.S. Constitution. This point, although valid, is not relevant to whether or not some condition is a nuisance. (9th Cir.; unpublished)

County of Westchester v. Commissioner of Transportation (1993) — A New York County brought an action against Connecticut landowners to obtain prescriptive avigation easments along an approach runway at its airport. The appellate court certified questions to the Connecticut Supreme Court, which responded that the county could not acquire a prescriptive avigation easement on the facts of the case. The Court of Appeals held that it was bound by the state supreme court decision. (See Connecticut Supreme Court opinion.) (2d Cir.; 9 F.3d 242; cert. denied 114 S. Ct. 2102)

Friends of East Hampton Airport et al. v. Town of East Hampton (2016) — Noise-reduction ordinances adopted by the town for its airport were challenged by a number of air services using the airport. The district court enjoined enforcement of some of the ordinances but allowed others. The appellate court declared all of the ordinances inconsistent with the 1990 Airport Noise and Capacity Act (ANCA). (2d Cir.; 841 F.3d 133) [On March 6, 2017, the Town of East Hampton filed a petition for a writ of certiorari with the U.S. Supreme Court, specifically raising the question of the court of appeals' interpretations of the application of ANCA. The Supreme Court has asked for additional briefing on the questions raised in the petition before deciding on the petition.]

Global Int'l Airways Corp. v. Port Auth. of N.Y. & N.J. (1984) — Airport proprietors may implement noise abatement programs to reduce the cumulative noise level of aircraft, as opposed to targeting only peak noise levels or the noise produced by an individual aircraft. At issue in this case was an airport rule that required individual air carriers to meet minimum percentages of "noise compliant" aircraft -- "noise compliant" being defined in terms of the FAA noise classification system of stage-1 and stage-2 aircraft. (2d Cir.; 727 F.2d 246)

Grand Canyon Air Tour Coalition v. FAA (1998) — In 1987 Congress, through the National Parks Overflights Act, directed the Secretary of the Interior to recommend to the FAA Administrator actions to be taken to "provide substantial restoration of the natural quiet and experience of the [Grand Canyon] park." The FAA was directed to prepare a plan for managing the air space above the park. Sometime after implementation of the plan, the Secretary was required to report to Congress on whether the plan was succeeding. The required report was submitted to the Congress in 1994, and it reflected two important determinations by the National Park Service: (1) the appropriate measure for quantifying aircraft noise was the percentage of time that aircraft are audible, and (2) the statutory phrase "substantial restoration of the natural quiet" required that 50 percent or more of the park achieve "natural quiet" (no audible aircraft) for 75-100 percent of the day. Two years later the FAA adopted these definitions in its final rule on managing the airspace over the Grand Canyon. The FAA's rule was challenged in court by air tour operators as "too much, too soon" and by a coalition of environmental organizations as "too little, too late." The court upheld the rule against both challenges. (D.C. Cir.; 154 F.3d 455) See the related 2002 case, U.S. Air Tour Assn. v. FAA, below.

Grand Canyon Trust v. FAA (2002) — The court granted a petition for review of the FAA's environmental assessment of a replacement airport near Zion National Park. The court concluded the record was insufficient to decide whether a full environmental impact statement is required, and ordered the FAA to evaluate the cumulative impact of noise in Zion Park due to the new airport "in light of air traffic near and over the Park, from whatever airport, [and] air tours near or in the Park." The court also determined that the FAA erroneously refused to include "natural ambient noise levels" in the analysis of cumulative noise. (D.C. Cir.; 290 F.3d 339)

Gustafson v. City of Lake Angelus (1996) — City ordinances prohibiting the operation of seaplanes on the surface of Lake Angelus are not preempted by federal law. The court held that City of Burbank v. Lockheed Air Terminal, Inc. (U.S. Supreme Court) was not dispositive in this case. (6th Cir.; 76 F.3d 778)

Helicopter Association International v. FAA (2013) — The court denied a petition for review of the FAA's final rule changing an existing noise-reduction flight path from voluntary to mandatory. The flight path diverts helicopters from populated areas of Long Island, New York, into the waters of Long Island Sound. In doing so, the court upheld the power of the FAA to establish flight patterns for the sole purpose of reducing the impact of aircraft noise on residential communities. (D.C. Cir.; cit. TBD).

Hinman v. Pacific Air Transport (1936) — Held: " is not legally possible to obtain an easement by prescription through the airspace above appellant's land." (9th Cir.; 84 F.2d 755; cert. denied 1937, 300 U.S. 654, 57 S.Ct. 431).

Hoagland v. Town of Clear Lake, Indiana (2005) — Held: "The siting of an airfield — so long as it does not interfere with existing traffic patterns, etc. — remains an issue for local control." (7th Cir.; 415 F.3d 693)

Luedtke v. County of Milwaukee (1975) — Owners of property near a county-owned airport sued the county and several airlines under negligence and nuisance theories. The appellate court held that plaintiffs may not seek nuisance or negligence damages from an airport for noise on the basis of a Wisconsin statute dealing with liability for low-altitude flying if airport operations comply with federal laws and regulations. No cause of action existed under the Fifth Amendment against the county-owner of the airport or private airlines since the amendment applies only to takings by the federal government. Because plaintiffs had initiated an action for inverse condemnation in state court, the district court should properly abstain from judgment on plaintiffs' cause of action under the Fourteenth Amendment but retain jurisdiction. (7th Cir.; 521 F.2d 387)

Note: "We overrule Luedtke to the extent it holds that all common law remedies for airport noise and pollution have been preempted by federal law." (Bieneman v. City of Chicago, 7th Cir., 1988; 864 F.2d 463)

Morongo Band of Mission Indians v. Federal Aviation Administration (1998) — After finding no significant adverse impacts, the FAA authorized a flight path into Los Angeles International Airport that crossed over the Morongo Reservation. The tribe sued for judicial review, contending inter alia that the FAA failed to evaluate or develop alternative routes and that its methodology for evaluating the impact of aircraft noise on the reservation was inadequate. The court denied the petition for review. (9th Cir.; 161 F.3d 569)

Naples Airport Authority v. FAA (2005) — Naples Airport banned all stage-2 jets, following the procedure established by the 1990 Airport Noise and Capacity Act. The FAA then held hearings on whether the ban violated the airport's Airport Improvement Program (AIP) grant assurances, and, not surprisingly, found that the ban violated the AIP grant assurance that regulation of aircraft operations will not be "unreasonable". Based on this finding the FAA ruled that the airport was ineligible for AIP grants. The airport sought this review of the FAA's decision. The court concluded that the airport had introduced ample evidence to justify the ban on stage-2 jets and thus vacated the FAA order. (D.C. Cir.; 409 F.3d 431)

National Helicopter Corp. of America v. City of New York (1998) — In 1996 the city sought a new fixed-base operator for its heliport along the East River, issuing a request for proposal that contained seven restrictions on operations. Plaintiff, which had been the fixed-base operator for 20 years, challenged the validity of the restrictions. The court upheld the city's weekday and weekend curfews, phasing out weekend operations, and reducing overall operations by 47%. It held invalid the city's prohibition of certain helicopters (on grounds of federal preemption) and restrictions on sightseeing routes (on grounds the restrictions were not based on noise regulation). The city's restrictions do not violate the Commerce Clause of the U.S. Constitution because Congress has expressly approved of the "proprietary powers and rights" of state and local governments that own airports (49 U.S.C. 41713(b)(3)). (2nd Cir.; 137 F.3d 81)

National Parks and Conservation Association v. Federal Aviation Administration (1993) — One of the rare decisions in which a court has held that the FAA's finding that a proposed airport construction project had no significant noise impacts (in this case on a public recreational area) was "arbitrary and capricious." The court reiterated that, although it must uphold an administrative agency's decision if there is a rational basis for the decision, it "need not defer to irrational judgements." (10th Cir.; 998 F.2d 1523)

People of State of Illinois v. Federal Aviation Administration (1987) — As required by the Noise Control Act of 1972, the U.S. EPA submitted (in 1976) to the FAA proposed regulations for abating aircraft noise. The proposed regulations required airport operators to submit noise abatement plans. Instead, the FAA (in 1981) promulgated, in the form of an interim rule, a regime of voluntary noise abatement planning (codified in 14 CFR Part 150). Illinois challenged both the substance and procedural validity of the interim rule. Held: (1) the FAA's voluntary airport noise abatement scheme is not contrary to the intent of the Act or the later Aviation Safety and Noise Abatement Act of 1979, and (2) the FAA's voluntary regime does not represent a "rejection" of the EPA's mandatory regime, under the terms of the Act, and therefore the FAA is not required to publish a detailed explanation of its action. (D.C. Cir.; 832 F.2d 168, 265 U.S.App.D.C. 400)

People of State of Calif. v. Dept. of the Navy (1980) — The provision of the Federal Clean Air Act regarding a state's enforcement of any standard for emission of air pollutants from an aircraft or its engine is concerned with direct state regulation of aircraft or aircraft engines or with other state regulation that would affect the aircraft or engine, and it was not intended to be preclusive of all state regulation of the field of aircraft engines. (9th Cir.; 624 F.2d 885)

Persyn v. United States (1995) — Genuine issues of fact as to noise generated by aircraft flying over property adjacent to an Air Force Base, the frequency and altitude of flights, and the effect on the adjacent landowners' property precluded summary judgment on landowners' claim of a taking due to the overflights. (U.S. Ct. Claims; 32 Fed. Cl. 579)

San Diego Unified Port District v. Giantruco (1981) — Airports in California must obtain a permit to operate from the state. Airports that do not meet the state's aircraft noise regulations can receive a variance permit. The state issued a variance permit for San Diego International Airport that required the airport to extend its nighttime curfew on flights. The Port sought an injunction against enforcement of the state-imposed curfew. The court held that even though the state's aircraft noise regulations were facially valid (cf. Crotti, N.D. Cal., see below), in this case application of the regulations violated federal supremacy in the field of aviation. Because the state was not the proprietor of the airport it was not entitled to impose conditions on flight operations. (9th Cir.; 651 F.2d 1306; cert. denied Department of Transp. of California v. San Diego Unified Port District, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866)

Santa Monica Airport Assn. v. City of Santa Monica (1981) — A coalition of airport users challenged Santa Monica's airport noise ordinance. The court held that federal regulation of aviation does not preempt all noise regulations by municipal proprietors. The "maximum single event noise exposure level" (SENEL) in the ordinance is not preempted by federal law despite the fact it monitors the noise created by planes taking off and landing. The SENEL is not a regulation of airspace or aircraft in flight, but a reasonable regulation by an airport proprietor of noise made by an aircraft. Likewise, the airport's curfew on night departures is permissible. However, a total ban on jet aircraft is not. (9th Cir.; 659 F.2d 100)

SeaAir v. City of New York (2001) — In order to reduce noise in the city, the City of New York prohibited sightseeing air tours from a city-owned seaplane base. SeaAir, which operated tours from the base, sued. The court ruled that the City's regulation did not violate the Supremacy Clause, and that SeaAir's rights to due process or equal protection under the law were not violated. (2d Cir.; 250 F.3d 183)

Seattle Community Council Federation v. Federal Aviation Administration (1992) — Affirming a decision of the Federal Aviation Administration (FAA), the court of appeals held that the FAA was not required under the National Environmental Quality Act (42 U.S.C. 4321 et seq.) to prepare an Environmental Impact Statement (EIS) on alteration of aircraft flight paths at the Seattle-Tacoma International Airport. (9th Cir.; 961 F.2d 829)

Sierra Club v. U.S. Dept. of Transportation (1985) — The FAA prepared an environmental assessment of the use of jets at an airport within a national park, concluding that no significant adverse environmental impacts would result and therefore that a full environmental impact statement was not required. Plaintiff challenged this decision, contending that the analysis of noise based on cumulative noise levels rather than individual noise levels did not adequately measure noise impacts. Plaintiff argued that the noise of individual events should be analyzed because the airport was within a national park. The court found no abuse of agency discretion in the analysis. "[T]he use of either an individual or cumulative standard of measurement only indicates the noise level; it does not interpret the impact. That is left to the judgment of the agency." (D.C. Cir.; 753 F.2d 120)

Skysign International, Inc. v. City and County of Honolulu (2002) — An aerial advertiser challenged Honolulu's ban on the use of aircraft to advertise in the airspace over the city. Held: federal aviation law does not preempt enforcement of ordinances regulating aerial advertising because Congress did not so completely occupy the field of aviation as to preempt the subfield of aerial advertising. (9th Cir.; 276 F.3d 1109).

Note: In reaching its decision the court relied on a statement in the FAA's guidelines for preparing a "Certificate of Waiver" for banner towing (FAA Order 8700.1, Vol. 2, Chap. 45). The statement had conditioned the waiver on any "state and local ordinances that may prohibit or restrict banner tow operations." Following the court's decision the FAA deleted the statement (see FAA Notice N 8700.16, October 7, 2002). Thus the Skysign decision has no precedential value.

Town of Cave Creek et al. v. FAA (2003) — Cities newly affected by noise resulting from the FAA's redirection of air traffic at Phoenix Sky Harbor International Airport challenged the FAA's "finding of no significant impact" (FONSI) for the new air route. Such a finding means a comprehensive environmental impact statement (EIS) need not be prepared. The court denied the petition for review, concluding that the FAA applied a well-established methodology and considered the relevant criteria in reaching its decision. (D.C. Cir.; 325 F.3d 320).

Vacation Village v. Clark County, Nevada (2007) — County had adopted zoning ordinances that restricted use and building height on property near the airport. The court determined that the effect of the ordinances on plaintiff's property did not constitute a taking of property under the U.S. Constitution, but did under the Nevada Constitution. In arriving at this decision the court applied a ruling of the Nevada Supreme Court (McCarran International Airport v. Sisolak). (9th Cir.; 497 F.3d 902)

United States Air Tour Assn. v. FAA (2002) — In 1996 the FAA issued a final rule on management of the airspace over Grand Canyon National Park. (See the related 1998 case, Grand Canyon Air Tour Coalition v. FAA, above, for background.) In 2002 the FAA issued two supplementary rules, one modifying flight paths over the park and another imposing a cap on the total number of commercial air tours permitted in the park. The latter rule was challenged in this case by a coalition of air tour operators and by a coalition of environmental organizations (Grand Canyon Trust). The court dismissed the petition of the air tour operators but granted that of the Trust. The Trust raised two challenges with which the court concurred. First, the court agreed that the FAA unlawfully altered the Park Service's definition of "substantial restoration of the natural quiet" (the mandate in the 1987 National Parks Overflights Act) from 50 percent of the park experiencing natural quiet for 75 percent of any given day to 50 percent of the park experiencing natural quiet for 75 percent of the average annual day. Second, the agreed that the noise methodology used by the FAA was flawed because it accounted only for noise from commercial air tours while ignoring noise from other types of aircraft. The FAA was ordered to reconsider its cap on commercial air tours in light of the court's findings. (D.C. Cir.; 298 F.3d 997)

Vorhees v. Naper Aero Club (2001) — Owner of property near a small private airport filed a state-law trespass claim because of flights over his property. Defendants moved to remove the case to federal court. The appellate court concluded: "The question is whether, in enacting the Federal Aviation Act, Congress clearly intended completely to replace state law with federal law and create a federal forum, or, more likely, if it only intended to provide a federal defense to the application of state law. . . . In this case, we conclude that it is the latter." (7th Cir.; 272 F3d 398)

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