The district court held that several of the provisions enacted were so arbitrary, capricious or unrelated to any governmental purpose as to render the ordinance unconstitutional. There are several provisions in the ordinance which appear at first blush to be arbitrary or irrational; however, on closer analysis they must be seen as furthering legitimate governmental goals. We discuss the principal provisions attacked by the carriers.
Runways 25L and 7R are subject to the lowest noise maxima for aircraft that use them. See Ordinance s. 16.45.030. These runways, however, overfly a freeway and a golf course, respectively. Thus, it is argued that it is unreasonable to place the strictest limits on aircraft that use them, as opposed to other runways that overfly residential areas.
It is not clear from the record, however, that these runways could be used for some of the larger and more noisy aircraft without improvement. In fact, there are strong suggestions to the contrary. The district court stated, for example, that these runways have "the capacity, with reasonable pavement modifications to prevent deterioration," to handle such jets (emphasis added). The district court thus implicitly acknowledged that the noise level set forth in the ordinance represents the maximum physical capacity of these runways. For this reason, the ordinance cannot be said to be arbitrary on this ground.
The ordinance appears to place the greatest burden in terms of flight limits on air carriers, although the city's quarterly noise reports indicate that general aviation flights are involved in significantly more noise complaints than are air carrier flights. These restrictions on carriers, however, are not irrational. Air carriers, with their published schedules, are more amenable to the numerical flight limits contained in the rest of the ordinance. The looser type of regulation of general aviation, based on aggregates, contained in section 16.45.120(C) cannot be said to be an unreasonable way to regulate the noise of general aviation user groups. The ordinance contemplates possible reductions in general aviation flights as well. Ordinance s. 16.45.120(C). We cannot say that the provisions limiting carrier flights are arbitrary or unreasonable.
Section 16.45.70(C) limits the number of daily air carrier flights to 32. As the district court found, the total noise produced by 32 flights could vary significantly depending upon what sorts of planes were used. Thus, the district court concluded that the choice of the number 32 was arbitrary. What the ordinance seeks to accomplish, however, is not simply the limitation of noise for its own sake; rather, it seeks to limit the annoyance that residents experience as a result of the airport's operation. It is not unreasonable to believe that the number of times the disturbance occurs could be as relevant as the cumulative noise created by the total number of such disturbances.
The district court found that sections 16.45.050 and 16.45.060, which impose fees for violations of daily and nighttime noise limits, respectively, were arbitrary and unreasonable because the fees imposed "do not appear to be proportionate to the problem being addressed." Section 16.45.060 does not say what the fee for violation of nighttime regulations is; rather, it simply provides for such a fee to be established by resolution of the City council. We cannot say that such a provision is arbitrary without predicting that the city council will act in an unreasonable fashion.
In sum, we cannot hold that any of the substantive provisions of the ordinance are completely arbitrary or unreasonable. Virtually any effort to impose specific limitations on flights and noise levels could be subject to similar attacks and create endless litigation. We find that each of the challenged provisions is sufficiently supported by a reasonable and legitimate justification. Therefore, the ordinance does not violate the commerce clause.
The district court held that the ordinance violated the equal protection rights of the air carriers, finding that it imposes "the entire burden of noise reduction on [the carriers] while, effectively, leaving other users of the airport unregulated." There is no dispute that the right to avoid reduction in the number of allocated flights is not a fundamental one, and the air carriers are not a suspect classification; therefore, we cannot find that the ordinance violates the principles of equal protection unless it is not rationally related to a legitimate interest of the City. See City of New Orleans v. Dukes, 427 U.S. 297, 303-05, 96 S.Ct. 2513, 2516-18, 49 L.Ed.2d 511 (1976). As we have already noted, the singling out of air carriers for numerical restrictions is rational given the fact that because air carriers alone have regular, published schedules, it is only upon them that such limitations could have a predictable effect. The ordinance thus does not violate the carriers' equal protection rights.
The district court's final basis for invalidating the ordinance, and the one on which we uphold the district court's order, is that the ordinance denies the air carriers procedural due process. Specifically, the ordinance authorizes the airport manager, alone and without a hearing, to require carriers to reduce flights. It further provides that the determination of the airport manager "shall be conclusive unless it is demonstrated to lack a rational basis." The ordinance provides no procedures for notifying carriers of a contemplated change to allow them to challenge the determination of the airport manager.
We agree with the air carriers that they have a property interest in the number of flights that they have been allocated. Because of the advertisement and public announcement of flights, maintenance of these allocations is crucial to the continued functioning of their enterprise. A license such as these allocations, which is not the subject of an absolute entitlement but which nevertheless becomes "essential in pursuit of a livelihood," is "not to be taken away without that procedural due process required by the fourteenth amendment." Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 1590, 29 L.Ed.2d 90 (1971).
Here, under the scheme that the ordinance seeks to impose, reduction in the number of permissible flights would be ordered automatically once the airport manager finds that a given carrier exceeds a certain cumulative noise level and had the highest average single event noise level. Ordinance s. 16.45.120. Such a determination constitutes, for all intents and purposes, a revocation for cause. In Bell, the Court held that the revocation of a license for cause could not occur before notice and a meaningful hearing was provided. See 402 U.S. at 541-42, 91 S.Ct. at 1590-91. Leave to land one's planes at the airport is similarly a property interest closely associated with the pursuit of a livelihood; therefore, due process also requires notice and a hearing before flight allocations can be revoked. Because the ordinance does not provide such procedural protections, it cannot be upheld.
The city does not seriously defend the ordinance itself. Rather, it argues that the challenge to the ordinance is not ripe because the airport manager has not yet cut off any carriers' flights. Indeed, where there is no direct threat that a law will be construed in a given way, a suit to enjoin such a construction may not meet the case or controversy requirement for justiciability. See International Longshoremen's and Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1954). Similarly, where it is impossible to know whether a party will ever be found to have violated a statute, or how, if such a violation is found, those charged with enforcing the statute will respond, any challenge to that statute is premature. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 303-05, 99 S.Ct. 2301, 2311-12, 60 L.Ed.2d 895 (1979). See also Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991).
As the Babbitt Court pointed out, however, the line that the case or controversy requirement draws between justiciable and nonjusticiable issues is often a fine one. See 442 U.S. at 297, 99 S.Ct. at 2308. Thus, the fact that a party has not yet engaged in the regulated conduct in question need not preclude that party's challenge to the regulation where it is clear that the regulation "is sure to work the injury alleged." 442 U.S. at 300, 99 S.Ct. at 2309. Given that the language of the ordinance here at issue is mandatory, providing that the air carrier with the highest average single event noise level "shall ... reduce flights," it is clear that at least one of the appellees will be deemed the noisiest carrier and will consequently be required to reduce flights.
Where, as here, the threat of action is very real, courts have permitted challenges to legislative enactments that are alleged to lack necessary procedural protections before they are implemented to work any actual deprivation. See, e.g., NAACP, Western Region v. City of Richmond, 743 F.2d 1346, 1351 (9th Cir.1984) (finding justiciable the NAACP's facial challenge to the City's parade ordinance, since it could reasonably fear that the City would exercise the unfettered discretion in enforcement that the terms of the ordinance provided); Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497 (7th Cir.1980) (plaintiff need not go through any procedures contemplated by the ordinance where his challenge was to the very requirement that he be subject to such procedures), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981). See generally 4 Davis Administrative Law Treatise ss. 25:1-16 (describing the International Longshoremen's decision, upon which the city relies, as an example of an "extreme" philosophy that was held by the Supreme Court during the late 1940s and early 1950s, but which has subsequently been disavowed in favor of a standard of ripeness that allows a person to challenge a legislative enactment when that person is faced with a choice between compliance with the enactment and sanctions for noncompliance). We hold that the air carriers' challenge to the procedural provisions of the ordinance is ripe for our review, and agree with the air carriers that the absence of adequate procedural protections renders the ordinance constitutionally infirm.
There is another issue before us, which lies outside of the analysis of the city's ordinance. During the pendency of the original preliminary injunction, entered before this case was tried, the city denied commuter airlines all access to the airport. The city's asserted reason for this denial was its interpretation of the preliminary injunction as not allowing it to permit any flights in addition to the number specified therein, which was the number allocated to the scheduled carriers. The district court found that this interpretation of the injunction was incorrect, and ruled that neither the injunction nor the ordinance allowed the city to work such an exclusion. It also found that this exclusion impermissibly burdened interstate commerce.
The city dealt with the commuters, as it dealt with the other air carriers, in a manner that did not distinguish between intrastate and interstate commerce. Its purpose, to control noise and liability, is a legitimate one. Like the ordinance, the city's ban on commuter flights thus cannot be said to violate the commerce clause. The district court's decision to the contrary was erroneous.
We agree with the district court, however, that the city's asserted basis for excluding the commuters is invalid. The injunction does not provide a ceiling for all flights, thereby requiring the exclusion of the commuters. The ordinance itself would have allowed commuters to use the airport. There is thus nothing in the record that offers any justification for the city's decision to deny access to the commuters. We therefore affirm the district court's order that the city cease to exclude the commuters.
The district court erred in finding that the ordinance was preempted by federal law, impermissibly burdened interstate commerce, violated equal protection principles, and was arbitrary, capricious, or otherwise not rationally related to legitimate governmental concerns. The district court was correct, however, in its determination that the provision authorizing reduction in flights without adequate notice and opportunity to be heard impermissibly denies procedural protections in conjunction with the deprivation of an important interest. Because of the ordinance's nonseverability clause, this procedural flaw is fatal. We therefore find that the district court appropriately enjoined enforcement of the ordinance. We also find that the district court correctly concluded that the exclusion of commuters was not mandated either by the ordinance or by the preliminary injunction.
AFFIRMED.
BEEZER, Circuit Judge, concurring:
I agree that the ordinance denied the air carriers procedural due process. Because this conclusion is sufficient to void Long Beach City Ordinance C-6278 (July 22, 1986) and to affirm the district court's judgment, I do not believe it necessary or appropriate to address other grounds on which the judgment may have been based.