Wing and a Prayer, Inc. v. City of San Jose
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
WING AND A PRAYER, INC., a California ) Case Number C 00-20018 JF
) ORDER GRANTING PLAINTIFF'S
Plaintiff, ) MOTION AND DENYING
) DEFENDANT'S MOTION FOR
v. ) PRELIMINARY INJUNCTION [FN 1]
CITY OF SAN JOSE, a Municipal Corporation, ) [Docket Nos. 19, 21, 35, 43, 54, 60, 68-
) 69, 71, 76-77, 81-82, 85, 91]
CITY OF SAN JOSE, a Municipal Corporation, )
and PEOPLE of the STATE OF CALIFORNIA, )
LAWRENCE J. ELLISON, et. al., )
[FN 1] This disposition is not designated for publication and may not be cited.
Plaintiff Wing and a Prayer, Inc., ("Plaintiff") seeks to enjoin the City of San Jose (the
'City") from enforcing the curfew provisions of its Airport Noise Control Program ("Noise
Program" or "Resolution 57211"). [FN 2] The City opposes Plaintiff's motion and has filed its own
motion for an injunction requiring Wing and a Prayer, Joubini Aviation, Inc., Jeff Glass, and
Lawrence J. Ellison (collectively, "Counter-Defendants") to comply with the curfew. [FN 3] The Court
has read the moving and responding papers and has considered the oral arguments of counsel
presented on Monday, April 9, 2001. The Court also has considered the supplemental briefs with
respect to the appropriate standard of review filed by the parties on April 25, 2001. [FN 4] For the
reasons set forth below, Plaintiff's motion will be granted, and the City's motion will be denied. However, in recognition of the important public policy interests the curfew provisions were
intended to protect, the Court will limit the scope and application of its order to provide relief to
Plaintiff while preserving the curfew generally.
[FN 2] Amicus Curiae Aircraft Owners and Pilots Association ("AOPA") have filed a brief
urging the Court to grant Plaintiff's motion.
[FN 3] Wing and a Prayer is a privately held corporation which owns and operates aircraft,
including the Gulfstream V-jet aircraft (the "GV") which is at issue in this litigation. (Declaration
of James Chadwick in Opposition to City's Motion for Preliminary Injunction, Exhibit 1 at 11:1 -
15.) Ellison is the CEO of Wing and a Prayer and is the principal user of the GV. (Id., Exhibit 1 at 15:10-22.) Glass is the president and CEO of Glass Aviation, Inc., which supervises operation
and maintenance of the GV. (Declaration of Jeff Glass in Support of Plaintiff's Motion for
Preliminary Injunction ¶1.) Glass also serves as Chief Pilot for Wing and a Prayer. Wing and
Prayer is a tenant of the San Jose Jet Center, Inc., which houses business aircraft at the Airport.
[FN 4] Both parties have filed various objections to and move to strike various parts of
declarations filed by the opposing party. To the extent the Court has considered such evidence,
the Court will overrule the parties' objections, as evidentiary standards are more liberal at the
preliminary injunction stage than at trial. See Republic of the Phillippines v. Marcos, 862 F.2d 1355, 1363 (9'h Cir. 1988) (when hearing motion for preliminary injunction the court may
consider hearsay evidence; particularly where the opposing party fails to contest the accuracy of
the information presented and plaintiff "has put forward enough to show a fair chance of
succeeding with its proof."); Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.
1984) ("The trial court may give even inadmissible evidence some weight, when to do so serves
the purpose of preventing irreparable harm before trial."); K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1088 (9th Cir. 1972); Asseo v. Pan American Grain Co., 805 F.2d 23, 26 (1st Cir. 1986).
I. FACTUAL BACKGROUND
The City adopted the Noise Program on February 7, 1984. (Declaration of Edward P.
Davis in Support of Plaintiff's Motion for Preliminary Injunction, Exhibit 1, Exhibit 2 at 26:8-
27:12.) The Noise Program was enacted to minimize the negative effects of airport noise on the
residential communities surrounding the San Jose Intemational Airport (the "Airport") and to
comply with environmental laws. (City's Opposition to Plaintiff's Motion for Preliminary
Injunction at 2-4). The implementing Resolution states that:
The goal of the San Jose Airport Noise Control Program is to encourage use of San Jose
Airport by both air carrier and corporatefbusiness jet aircraft with... Iower noise signature
characteristics and to discourage Airport use by higher noise signature jet aircraft, both in
the transport and non-transport category. The Plan encourages approach and departure
flight procedures that will minimize the noise impact on neighboring communities and
ultimately seeks to reduce the flight frequency in the most noise sensitive time periods by
the older and noisier jet aircraft.
(Noise Program, §IV.) In furtherance of this general goal, the curfew provisions which are the
subject of this lawsuit prohibit certain types of aircraft from operating at the Airport between the
hours of 11:30 p.m. and 6:30 a.m.
The Noise Program makes a number of important distinctions among aircraft and aircraft
operators. Aircraft are categorized according to both noise level (Stage 1 being the noisiest and
Stage 3 the quietest) and weight (heavier airplanes being defined as "transport aircraft" and
lighter airplanes as "non-transport aircraft"), and aircraft operators are classified either as
commercial "air carriers" or as non-commercial "general aviation" operators. [FN 5] Whether a
particular aircraft is exempt from the curfew or eligible for a waiver of its provisions depends
upon the interplay of these factors. As pertinent here, the curfew does not apply to Stage 3 non-
transport general aviation aircraft.
[FN 5] Air carrier "[m]eans any FAA or Foreign air carrier certificate holder operating transport
and/or non-transport category jet aircraft in domestic or foreign air commerce in the United
States, regardless of state of registry or airworthiness certification, . . ." Noise Program, §I.
General aviation "[m]eans any aircraft with civilian registry regardless of state of registry that is not operated as an air carrier or military aircraft." Id. (emphasis in original).
Plaintiff operates a Gulfstream V-Jet aircraft (the "GV"), which the City claims has repeatedly violated and continues to violate the curfew. [FN 6] It is undisputed that the GV is a Stage 3
aircraft and that Plaintiff is a general aviation operator. The City nonetheless contends that the
GV is too heavy to be categorized as a non-transport aircraft and therefore must comply with the
curfew. Plaintiff argues alternatively that the GV should be treated as a non-transport aircraft
exempt from the curfew or should be granted a waiver pursuant to §X(B)(2) of the Noise
Program, and that absent either an exemption or a waiver, the Noise Program violates the
Commerce, Equal Protection and Supremacy Clauses of the United States Constitution.
[FN 6] The City also claims that Counter-Defendants have engaged in unfair competition in
violation of California Business and Professions Code §17200 and have breached their
contractual duties to the City. The breach of contract claim is based upon the hanger agreement
entered into between Plaintiff and the San Jose Jet Center. (Counterclaim, 139, Exhibit E.) The
hanger agreement provides that Wing and a Prayer is subject to all regulations enacted by the
City as well as the ground lease agreement between the San Jose Jet Center and the City
("Ground Lease"). (Counterclaim at ¶39, Exhibit E at ¶D.) The ground lease agreement
provides that all hanger tenants shall comply with the City Noise Program. (Counterclaim, ¶41,
Exhibit F at 6.)
II. LEGAL STANDARD
In the Ninth Circuit, a party is entitled to a preliminary injunction when it "demonstrates
either (1) a combination of probable success on the merits and the possibility of irreparable injury
or (2) existence of serious questions going to the merits and that the balance of hardships tips
sharply in [its] favor." Goto.com, Inc. v. The Walt Disney Co., 202 F.3d 1199, 1204 (9th Cir.
2000); accord Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998). These two tests represent a
continuum of equitable discretion whereby the greater the relative hardship to the moving party,
the less probability of success must be shown. See U.S. v. Odessa Union Warehouse Co-op, 833
F.2d 172, 174 (9th Cir. 1987); Roe, 134 F.3d at 1402. Where the Court is considering the
enforcement of a statute or ordinance it should also consider the public interest and the hardship
the public may face if the injunction is granted or denied. See Sierra Club v. Hathaway, 579
F.2d 1162, 1167 (9th Cir. 1978); American Motorcyclist Ass'n v. Watt, 714 F.2d 962, 967 (gth Cir. 1983); Regents of University of California v. American Broadcasting Companies, Inc., 747 F.2d 511, 522 (9th Cir. 1984); Odessa Union Warehouse Co-op, 833 F.2d at 175.
A. Federal Regulation of Aviation and the Limited Regulatory Role of Airport
Aviation is and for many years has been the subject of pervasive federal regulation. City
and County of San Francisco v. Federal Aviation Administration, 942 F.2d 1391, 1394 (9th Cir.
1990); see also, 49 U.S.C. §41713(b)(1); id. §40101 et seq. (Federal Aviation Act), id. §44715 (Noise Control Act), id. §47521 et seq. (Airport Noise Capacity Act). In 1958, Congress enacted the Federal Aviation Act, creating the Federal Aviation Administration ("FAA") and the first general scheme of federal law governing aviation. Congress amended the Federal Aviation Act
in 1968, at which time it authorized the FAA to establish regulations to control and abate aircraft
noise. See Pub.L.No. 90-411, §1, 82 Stat. 395 (1968) (codified at 49 U.S.C. 44715 (2000)).
Pursuant to that authority, the FAA issued Part 36 of the Federal Aviation Regulations ("FAR"),
which imposes noise regulations on aircraft. See 34 Fed.Reg. 18355 (codified at 14 C.F.R.
§36.1, et seq. (2000), hereafter "Part 36"). Part 36 was amended in 1977 to establish stricter
noise standards for most newly manufactured airplanes, introducing the concept of "stages." See
42 Fed.Reg. 12360 (March 3, 1977). [FN 7] Under Part 36, as amended, aircraft meeting the original
1969 standards are categorized as "Stage 2" aircraft, those meeting the strictest noise standards
are categorized as "Stage 3," and those meeting neither standard are categorized as "Stage 1."
(See Alberti Declaration in Support of Plaintiff's Motion for Preliminary Injunction ¶3.)
[FN 7] Initially, Part 36 imposed noise limitations only on airplanes produced according to
designs submitted to the FAA for approval after December 1, 1969. 34 Fed.Reg. 18355, 18363.
However, in 1973 the FAA amended Part 36 to make it applicable to most newly manufactured
airplanes, regardless of when the design had been approved.
Finally, in 1990, Congress enacted the Airport Noise and Gapacity Act ("ANCA"). Pub.L.
101-508, §9302, 104 Stat. 1388-378 (1990) (codified at 49 U.S.C. § 47521, et seq. (1997)).
ANCA requires that all civil subsonic turbojets with a maximum weight of more than 75,000
pounds comply with Stage 3 noise levels by December 31, 1999. The FAA subsequently enacted
regulations requiring phased compliance with ANCA. See 56 Fed.Reg. 48628 (Sept. 25, 1991)
(codified at 14 C.F.R. §91 et al.). ANCA also provides that after October 1, 1990, airport noise or
access restrictions affecting Stage 3 aircraft may be imposed only if such restrictions are agreed to
by all aircraft operators or are approved by the Secretary of Transportation. [FN 8] Because the City's Noise Program was enacted prior to the passage of ANCA, it was not subject to these approval
requirements. However, significantly in the context of the present dispute, any future amendment
would require such approval.
[FN 8] Section 47524(c) of ANCA provides, in pertinent part, as follows: "an airport noise or
access restriction on the operation of Stage 3 aircraft not in effect on October 1, 1990, may
become effective only if the restriction has been agreed to by the airport proprietor and all aircraft
operators or has been submitted to and approved by the Secretary of Transportation after an
airport or aircraft operator's request for approval as provided by the program established under
this section. Restrictions to which this paragraph applies -- (A) a restriction on noise levels
generated on either a single or cumulative basis . . ." 49 U.S.C. §47524(c).
Notwithstanding its ongoing pervasive regulation of aviation, "Congress has reserved a
limited role for local airport proprietors in regulating noise levels at their airports." City and County of San Francisco, 942 F.2d at 1394. The Noise Program of which the subject curfew is a
part was enacted pursuant to this narrow Congressional reservation, [FN 9] and it is in the context of this legislative history that the challenged curfew provisions must be analyzed and construed.
[FN 9] The parties agree that City is the proprietor of the Airport.
B. Likelihood of Success on the Merits
1. The Appropriate Standard of Review.
Under the Supremacy Clause of the United States Constitution, state and local laws which
interfere with or are contrary to federal laws in an area of pervasive federal regulation are invalid.
See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981); National Helicopter Corp. of America v. City of New York, 137 F.3d 81, 88 (2nd Cir. 1998). Airport
proprietors have an extremely limited role in the system of aviation regulation. See British
Airways Bd. v. Port Authority of New York and New Jersey, 564 F.2d 1002, 1010 (2nd Cir. 1977);
American Airlines, Inc. v. Department of Transportation, 202 F.3d 788, 806 (5th Cir. 2000). [FN 10] The Court of Appeals for the Ninth Circuit has held that an airport proprietor's power "to adopt noise control regulations is limited to regulations that are not unjustly discriminatory." City and County of San Francisco, 942 F.2d at 1394 (emphasis added).
[FN 10] In fact, as previously noted, Congress through the passage of ANCA has further
restricted airport proprietors' power to regulate aircraft operating noise. See, e.g., 49 U.S.C.
Other federal courts consistently have concluded that an airport proprietor may adopt only
reasonable, nonarbitrary, and nondiscriminatory rules which advance the local interest. See, e.g,
British Airways, 546 F.2d at 1011 ("maintenance of a fair and efficient system of air commerce, of course, mandates that each airport operator be circumscribed to the issuance of reasonable,
nonarbitrary and nondiscriminatory rules defining the permissible level of noise which can be
created by aircraft using the airport."); Global International Airways Corp. v. Port Authority of
New York and New Jersey, 727 F.2d 246, 248 (2nd Cir. 1984) (noting that airport proprietors can
deny use of airports to aircraft on the basis of non-discriminatory noise criteria); National
Helicopter, 137 F.3d at 88 (holding that city has "the power to promulgate reasonable,
nonarbitrary and non-discriminatory regulations" and that such regulations "must avoid even the
appearance of irrational or arbitrary action"); American Airlines, 202 F.3d at 805 (concluding that 'federal courts have repeatedly held that an airport proprietor can issue only 'reasonable,
nonarbitrary, and nondiscriminatory rules that advance the local interest") (citation omitted);
Santa Monica Airport Association v. City of Santa Monica, 481 F.Supp. 927, 932 (C.D. Cal.
1979) ("proprietor may exercise control over airport noise providing such control is exercised
reasonably, non-discriminatorily, and without pointing a 'dagger . . . at the heart of commerce.'")
(citations omitted); see also City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 635 n.
14 (1973) (noting that the Senate report accompanying the bill which led to the passage of the
1968 amendments to the Federal Aviation Act quoted with approval a letter by the Secretary of
Transportation which indicated that airport proprietors can deny the use of their airports to aircraft
on the basis of noise considerations "so long as such exclusion is nondiscriminatory.") (citing
S.Rep. No. 1353, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News
2688, 2694). This requirement that noise regulations adopted by an airport proprietor be
reasonable, nonarbitrary, and nondiscriminatory also is expressly imposed by federal regulation.
See 14 C.F.R. §399.110(f)(2000). [FN 11]
[FN 11] At oral argument, the City suggested for the first time that a traditionall "rational basis"
standard of review should apply here. However, as demonstrated herein, the legislative history,
appellate courts and the FAA have indicated consistently that the "reasonable, nonarbitrary, and
non-discriminatory" standard of review is properly applied to the determination of whether an
airport proprietor has exceeded its limited authority. The City's reliance on Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977 (9th Cir. 1992) is misplaced. It is true that Footnote 2 of the Alaska Airlines decision states in relevant part that "[w]hether the FAA is required to approve of a local noise ordinance is a different question from whether the regulation is constitutional, and the analysis in City and County of San Francisco, has no application to this case." Alaska Airlines, 951 F.2d at 982 n.2. However, unlike Plaintiff here, the Alaska Airlines plaintiffs contended that the proprietor had no right to regulate noise because, according to them, "the ordinance's indemnity clause remove[d] the city's right to claim the proprietor exemption because it shifts liability to airport users." Id. at 982. In contrast, the issue in this case, as in City and County of San Francisco, is whether the the proprietor has exceeded the scope of its authority.
2. The City's Distinction Between Transport and Non-Transport Aircraft.
Under the provisions of the Noise Program at issue here, [FN 12] "transport aircraft" may not
operate between 11:20 p.m. and 6:30 a.m., but "general aviation jet aircraft in the non-transport
category may penetrate the curfew hours when the aircraft is [sic] a Stage 3 aircraft . . ." Noise
Program §X(B)(1). [FN 13] Whether a Stage 3 jet aircraft is classified as a "transport" or a "non-
transport" aircraft depends upon whether the aircraft has a "manufacturer designated certificated
maximum take-off weight" of more or less than 75,000 pounds. Noise Program, §I (definitions).
non-transport category aircraft "[m]eans any aircraft with a manufacturer designated certificated
maximum take-off weight less than 75,000 lbs." Id. (emphasis in original). Transport category aircraft "[m]eans any aircraft with a manufacturer designated certificated maximum take-off eight more than 75,000 lbs." Id. (emphasis in original). The curfew appears to apply to all
commercial aircraft regardless of whether the aircraft are classified as transport or non-transport. [FN 14]
[FN 12] There is some uncertainty as to exactly which provisions of the Noise Program apply.
For example, Section VII(A) appears to enumerate the types of aircraft and aircraft operations
which are subject to or exempt from the curfew. These restrictions, however, appear to have
been superseded or supplemented by Section X. Both parties discuss parts of Section VII as if
they are still valid but refer to other portions as if they have been superseded by Section X. See,
e.g, (Counter Defendants' Opposition to Motion for Preliminary Injunction at 14:18-28;
Counter-Claimant City of San Jose's Reply In Support of Preliminary Injunction Motion at 7:26
[FN 13] Section X provides that "[t]he curfew hours, 2330-0630 hours, are applicable to aircraft
operations as follows:
(A) TRANSPORT AIRCRAFT operators are required to schedule all flight operations so as not
to penetrate the curfew hours of 2330 to 0630 hours.
(1) TRANSPORT AIRCRAFT flight operations mav only penetrate the curfew hours when a
flight operation that is scheduled to operate in compliance with the curfew restrictions but for
reasons beyond the control of the air carrier, i.e., weather delays or weather related factors,
aircraft mechanical factors, and/or FAA air traffic control factors require the flight operation to
penetrate the curfew hours in order for the flight to maintain its desired schedule to/from San
Jose. Additionally, the curfew restriction is considered waived for air carrier aircraft operations
required at San Jose because of weather factors associated with the airport of destination.
(B) GENERAL AVIATION aircraft operator(s) of Stage 1 or 2 jet aircraft are required to
schedule all flight operations so as not to penetrate the curfew hours of 2330 to 0630 hours.
(1) GENERAL AVIATION jet aircraft in the non-transport category may penetrate the curfew
hours when the aircraft is a Stage 3 aircraft or the aircraft is a Stage 1 or Stage 2 aircraft
scheduled to arrive or depart San Jose outside the curfew hours but for reasons beyond the
control of the aircraft operator, i.e., weather delays or weather-related factors, aircraft mechanical
factors, and/or FAA air traffic control factors require the flight operation to penetrate the curfew
hours in order for the flight to achieve its intended operation at San Jose. Additionally, the
curfew restriction is considered waived for General Aviation jet aircraft operations required at
San Jose because of weather factors associated with the airport of destination.
(2) GENERAL AVIATION aircraft whose maximum noise levels under safe operating
conditions and procedures have been determined by the Airport Management, upon
demonstration by the aircraft manufacturer and/or operator to be equal to or lower than FAR Part
36 Stage 3 noise levels applicable to the aircraft category and type, may operate during the
curfew hours after obtaining authorization from the Airport Management."
(Noise Program §X.)
[FN 14] The City's position on this point, however, has not been entirely consistent. (See, e.g.,
Counter-Defendants' Opposition to City's Preliminary Injunction Motion at 13:13-15:26; Davis
Declaration, Exhibit 3 at 180:5-21; Chadwick Declaration, Exhibit 5 at 252:20-253:1; City's
Motion for Preliminary Injunction at 4:10-18; City of San Jose's Reply to Counter-Defendants'
Opposition at 7:15-9:3.) In any event, the Court need not address this issue at this time because
the only issue presently before it is whether the City may distinguish among general aviation
aircraft on the basis of weight. See Noise Program §X(B)(1).
The GV meets all of the criteria set forth in Section X(B)(1), except that it is classified as
a transport aircraft because its maximum take-off weighs is 90,500 pounds. [FN 15] Plaintiff contends in essence that the GV thus is subject to the curfew solely because of its weight, and that a
distinction among aircraft based on weight rather than noise is unjust and discriminatory.
(Complaint at 13:20-22.) City replies that its weight-based distinction is reasonable because in its
view there is "a direct and significant correlation between an aircraft's weight and the noise
generated by that aircraft." (City's Opposition at 12.)
[FN 15] Plaintiff repeatedly has offered to limit the actual take-off weight of the GV to 75,000
pounds in order for the GV to qualify as a non-transport aircraft, which offer forms the basis of
Plaintiff's argument that the GV is not subject to the curfew by the express terms of the Noise
Program. The Court finds Plaintiff's position unpersuasive for the reasons discussed infra.
The United States Court of Appeals for the Second Circuit considered a quite similar issue
in National Helicopter, 137 F.3d at 91. In that case, the proprietor of a heliport enacted a noise reduction program which prohibited, inter alia, all helicopter operations between 8:00 p.m. and 8:00 a.m. daily and between 6:00 p.m. and 10:00 a.m. on weekends, and which also barred a
certain type of helicopter or helicopters of similar size from using the heliport for sightseeing
operations. Id at 86. Like the City here, the proprietor argued that the prohibition of specific helicopters on the basis of size was reasonable because the helicopters in question were the
noisiest aircraft using the heliport.
The Court of Appeals upheld the lawfialness of the curfew generally, reasoning that the
"protection of the local residential community from undesirable heliport noise during sleeping
hours is primarily a matter of local concern and for that reason falls within the proprietor
exception." Id. at 89. However, it also upheld the decision of the district court enjoining the
City's ban on the specific type of helicopter and others of similar size, holding that "[a] regulation
purporting to reduce noise cannot bar an aircraft on any other basis." Id. Because the proprietor's program "placed restrictions on certain aircraft because of their size -- not the noise they make -- despite evidence that larger helicopters are not necessarily noisier than smaller ones," the court concluded that the program was unjustly discriminatory. Id. at 91 (citing, British Airways, 564 F.2d at 1012-1013).
In City and County of San Francisco, 942 F.2d at 1393, San Francisco sought review of a
decision by the FAA denying grant assurances on the ground that the City and County had enacted
noise ordinance which was unjustly discriminatory. Under that noise ordinance, a particular
type of aircraft which had been retrofitted to meet Stage 2 noise requirements was permitted to
operate at the Airport after January 1, 1985, only if the FAA had certified at least one aircraft of
the same type as meeting Stage 2 noise requirements prior to January 1, 1985. Plaintiff sought to
operate several retrofitted "Q707" aircraft but was prohibited from doing so because its aircraft
had received Stage 2 certification in March 1985, three months after the city's cutoff date. The
court concluded that the ordinance was unjustly discriminatory because it allowed planes that
were equally noisy or noisier than the Q707s to operate at the Airport and to increase in number
without limit while excluding the Q707, based on a characteristic, i.e. the date on which an
aircraft was certified as meeting Stage 2 requirements, which had no relationship to noise. The
court rejected San Francisco's argument that the ordinance was meant to reduce cumulative noise
levels, expressing the view that the FAA was "not required to approve a discriminatory scheme
simply because it may have had the effect of reducing noise." Id. at 1396 n. 6, 1397.
In Santa Monica Airport Association, the district court enjoined a noise abatement
program which, inter alia, established a single event noise exposure level (SENEL) of 100
decibels (dB), and banned all jet aircraft from the airport regardless of whether they met the
1OO dB SENEL level. 481 F.Supp. 927, affirmed in Santa Monica Airport Association v. City of
Santa Monica, 659 F.2d 100 (9th Cir. 1981). The court concluded that while older jets did make
significantly different, louder, shriller and more irritating noises than propeller planes, "the
executive jet industry has progressed greatly in recent years . . ., [that there are now] executive
and business jets which can meet the 100 SENEL level . . . [and these aircraft] cannot be validly
excluded from this airport and cannot be discriminated against because that discrimination is
unreasonable." Id. at 944.
The record in this case establishes that San Jose's Noise Program, like the programs at
issue in National Helicopter, City and County of San Francisco, and Santa Monica Airport
Association, seeks in part to abate noise based on factors other than "the noise [aircraft] actually make." National Helicopter, 137 F.3d at 91. Indeed, it is undisputed that aircraft which are noisier than the GV are not subject to the noise ordinance for no reason other than the fact that their maximum take-off weight is 75,000 pounds or less. (See, e.g., Alberti Declaration in
Support of Plaintiff's Motion for Preliminary Injunction ¶¶ 6-13, Exhibits 2-6.) While City has submitted evidence indicating that there is a correlation between aircraft weight and the
production of aircraft noise, [FN 16] distinguishing among general aviation aircraft on the basis of
weight alone is inconsistent with the regulatorv scheme implemented Congres and with the
reasoning of the cases which have analyzed it.
[FN 16] See, e.g., Brown Declaration in Opposition to Plaintiff's Motion for Preliminary
Injunction, Exhibit E at 2:11-3:8, Exhibits A-E; Mestre Declaration in Opposition to Plaintiff's
Motion for Preliminary Injunction at 2:15-17. City also argues that its noise criterion is
reasonable and not unjustly discriminatory because the FAA itself utilizes 75,000 pounds as the
distinguishing criterion in certain noise restrictions and requirements. However, as pointed out
by Plaintiff, the FAA's reasons for exempting aircraft with a maximum certificated weight of less
than 75,000 pounds are not clearly stated. There is some indication that the limitation is based
on practical and economic considerations, rather than an effort to reduce noise:
[T]he FAA believes that the noise reduction benefits, technological practicability, cost
effectiveness, and economic impact of applying the proposed requirements, across the
board, to all turbojets weighing 75,000 pounds or less have not yet been adequately
determined . . . [Section 61l(d) of the Federal Aviation Act] requires the FAA to consider
whether its noise regulations are economically reasonable, technologically practicable,
and appropriate to the particular type of aircraft to which they apply . . . [T]he FAA
concludes that operating noise limits for turbo jet airplanes weighing 75,000 lbs or less
cannot be adopted at this time in a manner that is fully consistent with the constraints in
§61l(d) of the Act.
(41 Fed.Reg.56055 (1976).) ANCA's legislative history also offers no indication as to why the
statutory phaseout was not applied to the lighter aircraft.
Like the jet ban in Santa Monica Airport Association, a distinction based solely on weight
ignores technological advances which have weakened the assumption that weight is
an accurate predictor of noise. The evidence in the record suggests that there are several factors which affect the amount of noise generated by an aircraft, including but not limited to engine and
airframe design. (See Hilton Declaration in Support of Plaintiff's Motion for Preliminary
Injunction ¶¶ 7-8; Alberti Declaration in Support of Plaintiff's Motion for Preliminary Injunction 1114; Davis Declaration in Support of Plaintiff's Motion for Preliminary Injunction, Exhibit 15 at 28: 10-29:9; Alberti Reply Declaration ¶¶ 9-11.) The unreasonably discriminatory nature of the City's Noise Program is best demonstrated by the fact that twenty GVs taking off at the same time would make less noise than one Beechjet 400 (an aircraft exempt from the curfew). The stated
objective of the curfew is to regulate nighttime noise, not an airplane's weight. [FN 17]
[FN 17] The City also asserts that the noise program is not unjustly discriminatory in light of the Noise Program's goal of reducing cumulative noise exposure. See Global Intern. Airway Corp., 727 F.2d 246. It argues, for instance, that by exempting the GV from the curfew the court will
open the door for commercial airlines to fly during curfew hours. However, as discussed at
length herein, the Court concludes that neither the exemption contained in §X(B)(1) nor the
waiver provision of §X(B)(2) applies to commercial aircraft. The City has offered no concrete
evidence that there is a "reasonable prospect" that a distinction based solely on weight is likely
to reduce cumulative noise.
Accordingly, the Court concludes that Plaintiff is likely to prevail on its claim that the
Noise Program's distinction among general aviation aircraft on the basis of weight is unjustly
discriminatory and is thus inconsistent with federal law. [FN 18] However, before taking the drastic step of declaring legislation invalid, the Court is constrained to consider whether other provisions of the Noise Program reasonably can be construed to afford relief to Plaintiff, making such a step
[FN 18]The Noise Program contains a severability clause which provides that "[i]f any of the
provisions of this Program or the application thereof to any person or circumstances are held
invalid, such invalidity shall not affect other provisions or applications of the Program which car be given effect without the invalid provision or application, and to this end, the provisions of this
Program are declared severable." Noise Program, §XIII.
3. Can the GV Properly be Categorized as a Non-Transport Aircraft?
As previously noted, non-transport general aviation Stage 3 jet aircraft are exempt from
the curfew. See Noise Ordinance, § X(B)(1). The Noise Program defines non-transport category
aircraft as having " manufacturer designated certificated maximum take-off weighs [is] less than 75,000 lbs." Noise Program, § I (emphasis in original). Plaintiff suggests that because it can and is willing to limit the take-off weight of the GV to 75,000 pounds or less, the instant dispute could be avoided entirely were the City to categorize the GV as a non-transport aircraft.
Unfortunately, the Noise Program does not define the term, "manufacturer designated
certificated maximum take-off weight." The parties agree, however, that "certificated" means to
e certified by the FAA. [FN 19] See, 49 U.S.C. §44704 and 14 C.F.R. Part 21. The FAA must issue a
"Type Certificate" when it finds that the aircraft at issue "is properly designed and manufactured,
erforms properly" and otherwise meets FAA regulations and standards. 49 U.S.C. §44704. Each
Type Certificate is considered to include the type design, the operating limitations, the certificate
ata sheet, as well as other applicable regulations and conditions. The Type Certificate Data
sheet ("TCDS") sets forth in detail the "conditions and limitations necessary to meet the
airworthiness requirements of the Federal Aviation Regulations." (Robert Fabela Declaration in
support of City's Motion for Preliminary Injunction, ¶8, Exhibit G at 48: FAA Order 8110.4B.)
n particular, the TCDS is required to include "all pertinent maximum weights such as ramp,
ending, takeoff, . . ." (Id.)
[FN 19] Such certification is required by l4 C.F.R. §91.203 which states that, except for certain
foreign civil aircraft, "no person may operate a civil aircraft unless it has within it the following: (1) An appropriate and current airworthiness certificate . . ." An airworthiness certificate, in turn,
requires issuance of a Type Certificate. 49 C.F.R. §44704; 14 C.F.R. §21.183. As such, because
an airworthiness certificate cannot be issued without a Type Certificate, a Type Certificate is
required to operate a civil aircraft in the United States.
According to its TCDS, the GV's maximum take-off gross weight is 90,500 pounds.
However, Gulfstream subsequently has promulgated an Aircraft Service Change ("ASC"), known
as ASC 64A, "pursuant to which the GV may be operated at a maximum take-off weight of
75,000 pounds" (Plaintiff's Motion for Preliminary Injunction at 8:3-12) and has issued an FAA-
approved supplement to the GV's flight manual implementing the Aircraft Service Change. [FN 20] Id Plaintiff asserts that "it is apparent that when operating pursuant to ASC 64A, the GV has a
'manufacturer designated certificated maximum take-off weight' of 75.000 pounds or less'"
(Plaintiff's Complaint at 9:1-11) and thus is not subject to the curfew.
[FN 20] The ASC 64A is implemented by inserting a placard in the cockpit of the GV specifying
that the maximum operating weights (including take-off weight) are each 75,000 pounds.
Plaintiff argues that once the placard is installed the operating weight of the GV may not exceed
75,000 pounds, because the 75,000 pound limitation becomes an operating limitation specified in
the approved GV Flight Manual. See 14 C.F.R. §25.1581(a) (aircraft manual must be furnished
with each airplane); id. §25.1583(c) (weight limits must be furnished in Airplane Flight Manual); id. § 91.9(a) ("no person may operate a civil aircraft without complying with the operating limitations specified in the approved Airplane or Rotor Craft Flight Manual, markings, and
placards, or as otherwise prescribed by the certifying authority of the country of registry").
According to Plaintiff the placard can be removed and the GV can be operated at a maximum
take-off weight of 90,500 pounds and a maximum landing weight of 75,300 pounds at airports
that permit such operations. (Plaintiff's Complaint at 8, n. 5). However, it asserts that if the
placard is not removed and Plaintiff violates its weight limitations it will be subject to penalties
for violating its Airplane Flight Manual (which has different limitations depending upon whether the placard is displayed). See 14 C.F.R. §13.15 (any person who violates the federal aviation act
or any rule, regulation, or order issued thereunder is subject to a civil penalty).
The City, however, argues that the words "manufacturer designated certificated" refer to
Type Certificates issued by the FAA. In support of its argument it submits the declaration of
Anthony J. Broderick, the FAA's former Associate Administrator for Regulation and Certification
and as such the senior career aviation safety official for the federal government from 1985 through
1996. Broderick concludes that Plaintiff's position is "without merit":
Wing and a Prayer argues . . . that its GV "has been designated and certified by its
manufacturer, Gulfstream, to operate at a maximum takeoff and landing weight of 75,000
pounds." That is not how one familiar with the FAR and aviation terminology would state
the facts here. Gulfstream in fact designed the GV to operate at a maximum takeoff
weight of 90,500 pounds and a maximum landing weight of 75,300 pounds as shown on
the official FAA TCDS for this aircraft (page 28). It is obvious to those familiar with
these matters that a weight variant that falls withing these FAA limitations would also be
approved, but it is untrue to say that these lower weights represent the maximums
designed by the manufacturer. They represent one of the many lower-weight variants
that could be approved by the manufacturer and the FAA, given the manufacturer designed
(and FAA certified) maximum approved takeoff and landing weights of 90,500 pounds
and 75,300 pounds respectively.
(Broderick Declaration in Opposition to Plaintiff's Motion for Preliminary Injunction ¶13)
(emphasis in original).
Broderick further explains that an approved weight variant such as ASC 64A "is not the
maximum, it is one of many possible operating weight limitations that can be approved as long as
they specify weights below the manufacturer certificated takeoff weight . . ." (Id.) As such,
Wing and a Prayer is attempting to confuse two things: one is the approval of lower-
weight variants that must be followed on those flights for which it elect to impose the
lower-weight variant restrictions; and the second is the manufacturer designed (and FAA
certificated) maximum takeoffweight which can never be exceeded. The former is
optional and temporary operational limitation that is approved by the manufacturer and the
FAA, but is only voluntarily imposed at the option of the operator on a flight-by-flight
basis. The latter is a limitation of the FAA approved design itself, as shown on the type
certificate data sheet for each particular make and model of aircraft, and may not ever be
exceeded when operating an aircraft of the make and model.
(Broderick Declaration ¶14.)
Broderick's reasoning is persuasive. The Noise Program easily could circumvented if
Plaintiff's interpretation were accepted. Any Stage 3 aircraft over the weight limit simply could
use a similar placard to meet the weight limitation. Moreover, the mere fact that the FAA
approved the amendment of the GV flight manual does not necessarily mean that it intended to re-
certify or re-designate the GV's maximum take-off weight The ASC 64A does not amend the
Type Certificate, as the FAA has separate provisions which regulate amendments of an aircraft's
Type Certificate. See 14 C.F.R. §21 Subpart D. In order for such an amendment to be approved,
the FAA requires the applicant to "submit substantiating data and necessary descriptive data for
inclusion in the type design." 14 C.F.R. §21.97.
The Court concludes that the term, "manufacturer designated certificated maximum take-
offweight" refers to the maximum take-offweight that appears in an aircraft's required Type
Certificate. Accordingly, the legal problem posed by the City's discrimination between transport
and non-transport aircraft cannot be avoided merely by re-categorizing the GV as a non-transport
4. Is Plaintiff Entitled to a Waiver Under §X(B)(2) of the Noise Program?
In addition to the curfew exemption defined in §X(Bj(l), the Noise Program contains at
least three waiver provisions. Commercial air carriers may seek a waiver of the curfew for
various reasons under §X(A)(1) and §XII. §X(B)(2) permits operators of general aviation aircraft
to seek authority from Airport Management [FN 21] to operate during curfew hours. The latter provision
in pertinent part reads as follows:
(2) GENERAL AVIATION aircraft whose maximum noise levels under safe operating
conditions and procedures have been determined by the Airport Management, upon
demonstration by the aircraft manufacturer and/or operator to be equal to or lower than
FAR Part 36 Stage 3 noise levels applicable to the aircraft category and type, may operate
during the curfew hours after obtaining authorization from the Airport Management.
(Noise Program, §X (B)(2)).
[FN 21] According to the City, the Director of Aviation, Ralph G. Tonseth, is "Airport
Management" within the meaning of §X(B)(2). (Report to Court by City, March 30, 2001,
Director's Decision at 2.4.)
Earlier this year, at the Court's urging, the City considered Plaintiff's request for a waiver
of the curfew pursuant to §X(B)(2). The City denied the request, citing two reasons for its
position: (1) that §X(B)(2) applies only to Stage 1 and Stage 2 non-transport category aircraft; and
(2) that even if §X(B)(2) applied to the GV, the Director of Aviation has discretion to deny
authorization and would do so because granting it would compel the Airport to permit operations
by commercial airlines during curfew hours. (See Report to the Court by the City of San Jose,
March 30, 2001, Exhibit A, at 3.2.4-3.2.8, 4-4.5).
Generally, courts will accord great deference to an agency's interpretation of its own
regulations. See City of Anchorage v. Richard Vista Corporation, 242 F.2d 276, 285-287 (9th Cir. 1957); Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 898 F.2d 753, 761 (9th Cir. 1990). However, such interpretation must be reasonable, that is, it must "sensibly conform to the purpose and wording of the regulations." Montana Air Chapter No. 29, 898 F.2d at 761. In
this instance, the Court concludes that the City's position that §X(B)(2) is applicable only to
stage 1 and Stage 2 non-transport aircraft is illogical and conflicts with the stated intent of the
Noise Program, which is to reduce aircraft noise.
The City's assertion that the waiver provision applies only to Stage 1 and Stage 2 aircraft
is premised on its argument that all transport aircraft are governed exclusively by §X(A), and that
§X(B3 therefore applies only to non-transport aircraft. (See Director of Aviation Decision, §3.2.)
However, while concededly there is some ambiguity, the subject headings of §X suggest
otherwise. The heading of §X(B) is not "non-transport category aircraft" but "general aviation
aircraft." The only reference to non-transport aircraft in §X is in the exemption of Stage 3 non-transport aircraft contained in § X(B)(1). [FN 22] Nothing in the plain language of §X(B)(2) limits its application to "non-transport" or Stage 1 or Stage 2 aircraft; instead, the language expressly permits a waiver if an aircraft has noise levels at or below Stage 3 limits "applicable to the aircraft category and type . . ." Noise Program, §X(B)(2). Finally, the City's suggestion that interpreting the waiver provision to include to Stage 3 transport jet aircraft would require the City to grant such waivers to commercial aircraft is contradicted by the clear language of the Noise Program itself. Like §X(B)(1), §X(B)(2) expressly applies to "general aviation" aircraft. [FN 23]
[FN 22] Further support for the Court's construction of §X(A) is found in the fact that §X(A)
makes two express references to "air carriers," suggesting that its principal purpose is to regulate commercial as opposed to general aviation aircraft.
[FN 23] Given the City's insistence on this point it is worth repeating that a "general aviation7
aircraft is unambiguously defined in the Noise Program as "any aircraft with civilian registry
regardless of state of registry that is not operated as an air carrier or military aircraft." Id. (emphasis in original). See Noise Program, §I.
Most importantly, accepting the City's interpretation of §X(B)(2) would lead to an unjust
and discriminatory result. If §X(B)(2) is construed to apply only to Stage 1 and Stage 2 non-
transport aircraft, then general aviation transport aircraft such as the GV are the only type of aircraft for which no waiver of the curfew is available under the Noise Program. As noted earlier,
commercial carriers may seek a waiver for any type of aircraft under §X(A)(1) or §XII, and all
other types of general aviation aircraft, regardless of noise level, are either exempt from the
curfew under §X(B)(1) or eligible for a waiver under §X(B)(2). The City has articulated no
rational basis for such disparate treatment. Accordingly, the Court concludes that §X(B)(2) must
be read to apply to all general aviation aircraft, whether classified as transport or non-transport,
"whose maximum noise levels under safe operating conditions and procedures have been
determined by the Airport Management, upon demonstration by the aircraft manufacturer and/or
operator to be equal to or lower than FAR Part 36 stage 3 noise levels applicable to the aircraft
category and type." Noise Program, §X (B)(2). [FN 24]
[FN 24] The City argues that this interpretation renders the waiver provision superfluous because
all Stage 3 general aviation aircraft will qualify for a waiver. (See City's Brief in Support of
Director's Decision, April 4, 2001 at n. 1.) However, as argued by the City, Airport Management
has at least some discretion to deny a waiver. Nothing in the Court's analysis is meant to suggest
that the City could not refuse to grant a waiver based upon considerafions other than aircraft
Having concluded that the waiver provision is applicable to the GV, Court still must
determine whether the City acted appropriately in denying Plaintiff's application for a waiver.
While §X(B)(2) requires an aircraft operator to obtain authorization from Airport Management,
the extent to which Airport Management has discretion to refuse such authorization is unclear.
However, in this case the Court concludes that even under the highly deferential abuse of
discretion standard, see St. Elizabeth Community Hospital v. Heckler, 745 F.2d 587, 592 (9th Cir.
1984); DeCuir v. County of Los Angeles, 64 Cal.App.4th 75, 81 (1998), the City abused its discretion in denying Plaintiff a waiver of the curfew. According to its own submissions to the
Court, the City's principal reason for not granting Plaintiff a waiver was that doing so would require
it to grant similar waivers to commercial aircraft. (See, e.g., Director of Aviation's Report
§§4.3.2-4.3.6.) On its face, §X(B)(2) is inapplicable to commercial aircraft. City also claimed
that by granting Plaintiff a waiver it would "open the floodgates," resulting in a substantial
increase in the number of general aviation aircraft operators seeking waivers. [FN 25] However, there is no evidence in the record to support this claim. In fact, according to evidence submitted by
Plaintiff, currently there are only nine GVs operating in the entire state of California. (See
Declaration of James Chadwick in Response to Report of City, Exhibit 2.)26 Finally, the City
argues that because numerous commercial aircraft which are quieter than the GV are subject to the
curfew, there is no particular unfairness to Plaintiff in denying a waiver for the GV. The problem
with this argument is that it ignores the fact that the only basis on which general aviation aircraft such as the GV are subjected to the curfew is their weight. The Noise Program's treatment of commercial aircraft necessarily involves policy interests and considerations which are significantly different from those concerning general aviation aircraft, have not been briefed and
are not before the Court.
[FN 25] Exhibit C to the City's Report discusses additional aircraft which would qualify for an
exemption under Plaintiff's various interpretations of the Noise Program. Again, however, the
City incorrectly assumes that the exemption and waiver provisions of §X apply to commercial
[FN 26] According to Plaintiff, there will be three GV's in the Santa Clara area by 2001, and
seven in the San Francisco area by 2001. (See Declaration of James Chadwick in Response to
Report of City, Exhibit 2.)
C. Balancing of Equities
"Courts of equity may, and frequently do, go much farther both to give and withhold relief
in furtherance of the public interest than they are accustomed to go when only private interests are
involved." U.S. v. First National City Bank, 379 U.S. 37S, 383 (1965). Plaintiff alleges that
unless it is permitted to land the GV at San Jose International Airport during the hours of the
curfew it will suffer the type of intangible losses in the value of its business services which
constitute irreparable harm. See Regents of the University of California v. ABC, 747 F.2d 511,
519-520 (9th Cir. 1984); National Aviation v. City of Hayward, California, 418 F.Supp. 417, 419-420 (N.D. Cal. 1976). While such harm is not trivial, and while the foregoing discussion makes
clear that Plaintiff has strong arguments on the merits, the City has demonstrated, and it should be
obvious to any observer, that the curfew serves important public interests. The Court therefore
concludes that the most prudent exercise of its equitable powers at the present time is to enjoin the
City from refusing to grant Plaintiff a waiver of the curfew rather than to invalidate some or all of
the curfew itself.
The Court would be remiss if it did not make passing reference to the public debate which
has surrounded these proceedings. Under our system of government, it is the role of the
legislative branch to make laws and the duty of the executive branch to carry out those laws fairly
and justly. It is not the function of courts to serve as super-legislatures or ultimate supervisors of
executive decision-making. It is regrettable that a dispute about one airplane has consumed so
large a quantity of human and economic resources and that the parties have found compromise so
difficult. [FN 27] As the present motions seek only interlocutory relief and not a final judgment, the
Court is hopeful that its decision might serve as the framework for a final resolution of this
matter. [FN 28]
[FN 27] It has been suggested that at least some individuals within City government have
resisted resolution of this case with the unstated hope that the Court would invalidate the curfew,
permitting further growth of the Airport without the City having to face the political fallout
which undoubtedly would occur were the curfew repealed legislatively. Obviously, the Court
cannot engage in or be influenced by such speculation.
[FN 28] In connection with their briefing of these motions, Counter-Defendants also moved for a
determination that Counter-Defendant Ellison is not a proper party to this action. The record amply indicates that Ellison has played a significant personal role in Plaintiff's dispute with the City and
in this case. Accordingly, the motion will be denied.
Good cause therefore appearing, it is hereby ORDERED that pending further proceedings
herein Defendant City be enjoined and restrained from refusing to grant Plaintiff a waive'r of the
curfew provisions of its Noise Program pursuant to §X(B)(2) thereof. Within ten (10) days of the
date of this Order, counsel shall submit a letter brief addressing whether a bond is appropriate and
in what amount. The City's motion for a preliminary injunction is denied. Counsel for Plaintiffis
directed to prepare an appropriate form of order.