WING AND A PRAYER, INC., a California      )  Case Number C 00-20018 JF
Corporation,                               )
                                           )  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]
Defendant.                                 )
__________________________________________ )
                                           )
CITY OF SAN JOSE, a Municipal Corporation, )
and PEOPLE of the STATE OF CALIFORNIA,     )
                                           )
                   Counter-Claimants,      )
                                           )
           v.                              )
                                           )
LAWRENCE J. ELLISON, et. al.,              )
                                           )
                   Counter-Defendants.     )
___________________________________________)

[FN 1] This disposition is not designated for publication and may not be cited.

[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).

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.

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).

[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.)

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 Proprietors

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.

[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).

[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. §47524(c).

[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 8: 1-6.) [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).

[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 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.

[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.

[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.

[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).

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 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'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 aircraft.

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.

[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.)

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.

[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 weight.

[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 aircraft.

[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.

DATED: 6/13/01

JEREMY FOGEL
United States District Judge