We need not tarry long over the issue that heretofore has occupied center stage in this litigation. We believe the ground for Judge Pollack's grant of summary judgment, that Secretary Coleman's order preempted the conflicting exercise of power by the Port Authority, is simply untenable and erroneous. Accordingly, we will reverse.

In response to our request, the United States filed an amicus brief in which it urged that Secretary Coleman's order was never intended to deprive the Port Authority of the right to condition utilization of the facilities at JFK on the Concorde's compliance with reasonable noise regulations. The Government, indeed, went further, and denied that existing legislation authorized the Executive under any circumstances to preempt airport proprietors from promulgating their own noise regulations.

This conclusive statement of the United States position confirms our independent assessment of the public record. Secretary Coleman's decision explicitly indicated that the Concorde's right to land at Kennedy depended upon the voluntary cooperation of the Port Authority, though, of course, the Secretary did not hesitate to direct Dulles, a federally operated facility, to afford landing rights to the Anglo-French plane. Any uncertainty that might have remained after Coleman's decision was dissipated by the Secretary the following week, when he told the House Committee on Public Works and Transportation that an airport proprietor's imposition of a "non-discriminatory" ban on supersonic transports would not be preempted by FAA action, as long as it did not constitute an "unreasonable burden on interstate and foreign commerce." Aircraft Noise Policy Hearings, 94th Cong. 2d Sess., at 705 (1975-76). Secretary Coleman reiterated the vitality of this "federal policy" again two weeks after the Port Authority promulgated its "temporary" ban on the Concorde. It is now evident that this approach to noise regulation has survived the change of administration. President Carter and his present Transportation Secretary Brock Adams have made it abundantly clear, in the amicus brief and elsewhere, that they have continued the traditional policy of refusing to preempt the local airport operator's responsibility for establishing permissible levels of noise. In view of the repeated disavowal by federal officials of any attempt to preempt the Port Authority's right to subject the Concorde to reasonable noise regulations, we are compelled to hold the Secretary's order did not preclude the exercise of power by the Authority.

Since the reasonableness of the Port Authority's delay has been raised for the first time by the United States as amicus on appeal, we cannot appropriately decide the issue. Basic tenets of fairness require that a federal appellate court should not consider an issue involving questions of fact not resolved below. It is "essential . . . that parties may have the opportunity to offer all the evidence they believe relevant to the issues . . .", Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) quoting with approval Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). We are particularly reluctant to affirm the District Court's grant of summary judgment on another ground especially one not advanced by the parties where the effect is to deprive the appellant from disputing facts material to that claim. Fruge's Heirs v. Blood Services, 506 F.2d 841, 844 (5th Cir. 1975). As we noted recently in Mariash v. Morrill, 496 F.2d 1138, 1145 (2d Cir. 1974) on appeal we will not be coaxed into acting without a proper adversary foundation by the "unilateral and gratuitous assertion" of a claim to summary judgment that neither side pressed in the district court.

We do believe, however, that the government has raised an important and viable point. Implicit in the federal scheme of noise regulation, which accords to local airport proprietors the critical responsibility for controlling permissible noise levels in the vicinity of their airports, is the assumption that this responsibility will be exercised in a fair, reasonable and nondiscriminatory manner. [FN1] Although 13 months have already elapsed since the commencement of commercial Concorde operations at Dulles, we cannot on the state of this record find that this delay is unreasonable. The Port Authority desires an evidentiary hearing to submit facts justifying this delay.

FN1. It is highly questionable that a private party can seek injunctive relief against the Port Authority in an article 78 proceeding in state court. See New York City Chapter of National Electrical Contractors Assn. v. Fabber, 73 Misc.2d 859, 343 N.Y.S.2d 33 (Sup.Ct.), aff'd, 41 A.D.2d 821, 343 N.Y.S.2d 558 (1st Dep't.1973). The Port Authority's charter provides that it can be enjoined without its consent only in an action instituted by the Attorney General of New York or New Jersey. See L.1950, ch. 301, s 5, McK.Unconsol.Laws, Sec. 7105. Even if the airlines could bring such an action in state court, our jurisdiction would not be defeated. See Douglas v. Seacoast Products, 431 U.S. 271, 265 n.4, 97 S.Ct. 1740, 52 L.Ed.2d 304.

A. The Regulatory Scheme.

The regulation of excessive aircraft noise has traditionally been a cooperative enterprise, in which both federal authorities and local airport proprietors play an important part. Of course, legitimate concern for safe and efficient air transportation requires that exclusive control of airspace management be concentrated at the national level. See City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). The repeated efforts of local communities to control the noise of overflying jets have been consistently frustrated by application of the doctrine of federal preemption of regulations concerning planes in flight. See Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1956); American Airlines v. Town of Hempstead, 398 F.2d 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 620, 21 L.Ed.2d 561 (1969).

It is understandable that the numerous localities in the vicinity of major airports cannot be permitted an independent role in controlling the noise of passing aircraft. The likelihood of multiple, inconsistent rules would be a dagger pointed at the heart of commerce and the rule applied might come literally to depend on which way the wind was blowing. The task of protecting the local population from airport noise has, accordingly, fallen to the agency, usually of local government, charged with operating the airport. Air Transport Ass'n v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975) (3-judge court); Nat'l Aviation v. City of Hayward, 418 F.Supp. 417 (N.D.Cal.1976). Indeed, since the operator controls the location of the facility, acquires the property and air easements and is often able to assure compatible land use, he is liable for compensable takings by low-flying aircraft, Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). The right of the proprietor to limit his liability by restricting the use of his airport has been thought a corollary of this principle. It is perhaps more important, however, that the inherently local aspect of noise control can be most effectively left to the operator, as the unitary local authority who controls airport access. It has always seemed fair to assume that the operator will act in a rational manner in weighing the commercial benefits of proposed service against its costs, both economic and political.

Congress repeatedly has declined to alter this cooperative scheme. [FN2] Thus, although the Federal Aviation Act was amended in 1968 to stimulate the national effort to reduce excessive aircraft noise by requiring the Administrator to "prescribe . . . such (rules and) regulations as (he) may find necessary to provide for the control and abatement of aircraft noise . . . ." 49 U.S.C. s 1431(b)(1), the legislative history clearly states that the statute was merely intended to strengthen the FAA's regulatory role within the area already totally preempted control of flights through navigable airspace. The Senate Report accordingly concludes that

[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 airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.

FN2. Under the Commerce Clause, Congress has the power, in order to promote a nationwide transportation system and to control interstate and foreign air traffic flow, to dictate what aircraft should be permitted to land and take-off from airports. See City of Burbank v. Lockheed Air Terminal, supra. But it is manifest from our scheme of aviation management that Congress has consciously committed to airport owners the responsibility of determining permissible levels of noise for the facility and its environs. This delegation of authority, in a field otherwise entirely occupied by the federal government, implies no general restriction on federal power. Instead, it is plain that State and local bodies have been made partners with the federal government and the aeronautics industry in a nationwide effort to control airport noise.

B. Local Regulation Must Be Reasonable.

(i) Constitutional and Statutory Bases. We believe the scope of the Port Authority's power as an airport proprietor to impose use restrictions based on noise considerations is defined by the limited role Congress reserved for it in the national scheme we have briefly sketched. The proper domain of the operator is the "issu(ance of regulations) or establish(ment of requirements) as to the permissible level of noise which can be created by aircraft using the airport." S.Rep. No. 1353, supra at 6, U.S.Code Cong. & Admin.News 1968, p. 2694. It is clear to us that the Port Authority is vested only with the power to promulgate reasonable, nonarbitrary and non-discriminatory regulations that establish acceptable noise levels for the airport and its immediate environs. Any other conduct by an airport proprietor would frustrate the statutory scheme and unconstitutionally burden the commerce Congress sought to foster.

The Supreme Court this Term held that localities may require federal licensees to observe conservation and environmental protection regulations so long as these measures are reasonable and nondiscriminatory. Douglas v. Seacoast Products, Inc., 431 U.S. 265, ---, 97 S.Ct. 1740, 52 L.Ed.2d 304 (1977). Douglas was concerned with an ordinance of the Commonwealth of Virginia that purported, apparently on environmental grounds, to ban a non-resident, but federally certified, company from certain commercial fishing in Chesapeake Bay. The challenged regulation, like the one before us, concerned a field Congress has traditionally left to State and local government. The Court instructed us again, however, that the legitimate local power had to be exercised in a nondiscriminatory fashion and in conformity with federal law. Congress has left room only for local action that advances and is consistent with federal policy; other, noncomplementary exercises of local prerogative are forbidden. [FN3]

FN3. Indeed, the Commerce Clause of its own force prohibits local regulations that exceed limits necessary to vindicate a recognized state interest. See Florida Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951). The law seems clear that any Port Authority regulation pertaining to the Concorde must reasonably and nondiscriminatorily advance the end of aircraft noise abatement for airport neighbors.

Counsel for the Port Authority clearly conceded in argument before us that the Port Authority's power to set noise rules was subject to the proviso that they be reasonable. Thus, in response to Judge Van Graafeiland's question concerning the scope of the Port Authority's asserted jurisdiction, Mr. Falvey replied: The Port Authority has the right to decide, on the basis of reasonable, nondiscriminatory regulations, whether or not to accept types of aircraft at its airports. (Emphasis added.)

We assume that the Port Authority is compelled to this view, not only by the considerations we have outlined above, but by its compact with the Secretary of Transportation as well, that JFK would be "available for public use on fair and reasonable terms and without unjust discrimination". 49 U.S.C. s 1718(1). See City of Dallas v. Southwest Airlines Co., 494 F.2d 773 (5th Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974); Aircraft Owners & Pilots Assn. v. Port Authority, 305 F.Supp. 93 (E.D.N.Y.1969).

(ii) Treaties. Our conclusion that the Port Authority may ban supersonic aircraft only pursuant to reasonable noise regulations is further supported by a consideration of United States treaty obligations. In his prescient opinion, Secretary Coleman warned that "total ban of the Concorde at this time, without giving it any chance to prove itself, would conceivably be attacked as discriminatory." Decision at 11-12. Of course, all agree that equal, nondiscriminatory treatment of domestic and foreign air commerce is the touchstone of the complex network of agreements regulating international aeronautical traffic of which the United States is a major beneficiary. The bilateral compacts between this country, Great Britain and France indicate that each signatory will subject the air carriers of the other to evenly-applied "laws and regulations." See United States-France Air Transport Services Agreement, Art. V., 61 Stat. 3445, T.I.A.S. No. 1679 (March 27, 1947); Bermuda Agreement, Art. 5, 60 Stat. 1499, T.I.A.S. No. 1507 (Feb. 11, 1946). See also Convention on International Civil Aviation (Chicago Convention), 61 Stat. 1180, T.I.A.S. No. 1591 (August 9, 1946).

The airlines contend that the Port Authority's ban on Concorde operations is not a valid and enforceable "regulation" under the bilateral agreements. They urge that the Authority's action is in fact not a rule of general application, but an ad hoc measure, directed solely at them, and providing no opportunity for the airlines to show the Concorde is environmentally acceptable. We agree, of course, that the failure of a local airport proprietor to promulgate an even-handed noise regulation for application to both domestic and foreign carriers would raise a significant likelihood of the type of "discrimination" that is forbidden under binding treaty commitments. But this is not to say that foreign airlines cannot be subjected to any local regulations, nor is it to say that local government must blind itself to significant differences in the noise characteristics of aircraft, merely because they are operated by foreign carriers. Cf. Guaranty Trust Co. v. United States, 304 U.S. 126, 143, 58 S.Ct. 785, 82 L.Ed. 1224 (1937). Indeed, British and French airlines have complied with JFK's rule excluding jet aircraft producing more than 112 PNdB for nearly two decades, apparently without complaint.

The issue, then, is whether the Concorde's concededly revolutionary technology justifies a temporary ban of operations for study of the advisability of applying to it the noise regulations generally applicable to jet aircraft and for consideration, if necessary, of new and reasonable regulations tailored to the special noise characteristics of the SST. The reasonableness of the Port Authority's ban or the study itself is not before us. Accordingly we are not called upon to decide this sensitive question. [FN4] We are compelled to note, however, that, should the Port Authority's action be found arbitrary and capricious, a serious question would be raised concerning its compatibility with American treaty arrangements. The delicate framework of international understanding that makes possible the flourishing of transoceanic air travel has already been rent by the Concorde controversy; it is manifestly imperative that noise regulations, promulgated by those who, like the Port Authority, operate our international airports, withstand all allegations of arbitrariness or discrimination.

FN4. The amicus brief of the United States did not address the effect of existing treaty obligations on this case because, as the government stated, there were pending discussions concerning renewal of the bilateral aviation compact between the United States and the United Kingdom. It has been reported that the controversy over the Concorde has contributed significantly to the difficulties encountered in renegotiating the Bermuda Agreement.

Since the Government concedes that it has not, and under its view of existing legislation, could not preempt the field of airport noise regulation, we are not deciding whether the SST may land at Kennedy Airport. However, there remains the question of whether the 13 month delay by the Port Authority in promulgating reasonable noise regulations applicable to supersonic aircraft is so excessive as to constitute unfair discrimination and an undue burden on commerce.

We accordingly direct that the district court on remand proceed to conduct an evidentiary hearing on the reasonableness of the Port Authority's thirteen month ban on Concorde landings at JFK.

In the event that the evidence does not support a finding of unreasonable delay, we nevertheless believe it is in the interest of all concerned that this interminable strife be brought to an end. Accordingly, we urge the Port Authority to conclude its study and fix reasonable noise standards with dispatch. We recognize, of course, the pressures that have been brought to bear on the Authority by the interested governments, the State of New York, and segments of the public. We are confident, however, that the Authority will continue its tradition of even-handedness and leadership in its effort to reconcile aviation progress with environmental concerns. More delay can only exacerbate the pulling and tugging which accompany hard decisions.