AVIATION NOISE LAW
San Diego Unified Port District v. Gianturco
Cite as: 651 F2d 1306


U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SAN DIEGO UNIFIED PORT DISTRICT, Plaintiff-Appellee, and Air Transport Association of America et al.,
Intervening Plaintiffs-Appellees,
v.
Adriana GIANTURCO et al., Defendants-Appellants

No. 78-3260

(Appeal from the U.S. District Court for the Southern District of California.)

Argued and Submitted Oct. 2, 1979.
Submission Vacated June 5, 1981.
Resubmitted June 11, 1981.
Decided July 30, 1981.
Rehearing and Rehearing En Banc Denied Sept. 21, 1981.


COUNSEL:

Edward J. Connor, Jr., Atty., Dept. of Transportation (argued), San Diego, Cal., Richard G. Rypinski, Chief Counsel, John B. Matheny, Asst. Chief Counsel, Mark F. Mispagel, Suzanne Jacobs, Susan K. Johann, Attys., Sacramento, Cal., (on brief), for defendants-appellants.

Michael Scott Gatzke (argued), Louis E. Goebel, Gregory T. Smith, Luce, Forward, Hamilton & Scripps, (on brief), San Diego, Cal. on brief, for plaintiff-appellee.

Peter R. Steenland, Jr., Atty., Dept. of Justice (argued), James W. Moorman, Asst. Atty. Gen., Dirk D. Snel, Atty., Washington, D.C., (on brief), for amicus curiae.


Before WRIGHT [FN*] and TANG, Circuit Judges, and CURTIS,[FN**] Senior District Judge.

[FN*] This appeal was argued before a panel of Circuit Judges Kennedy and Tang, and District Judge Curtis. Judge Kennedy has recused himself and Judge Wright has replaced him.

[FN**] Of the Central District of California.

PER CURIAM:

We must determine whether the doctrine of federal preemption prevents the State of California from directing a political subdivision to impose a curfew on aircraft flights. In making our determination, we interpret the Supreme Court's decision in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), and later federal statutes. We affirm the district court which concluded that the state could not impose these curfew regulations.

The political subdivision which asserts the invalidity of the state's attempted imposition of a curfew is the San Diego Unified Port District. The Port District owns and operates San Diego International Airport, Lindbergh Field. Lindbergh Field is the principal airport serving San Diego, and is near the downtown area. Five million passengers pass through the airport each year. This volume of traffic requires frequent jet flights, which produce jet noise that has vexed local residents for some years.

The Port District has attempted to accommodate the needs of commerce and the quiet of San Diego residential areas, by, among other things, unilaterally imposing a midnight to 6:00 a. m. curfew on all commercial jet takeoffs. In addition, the curfew allows only jets meeting strict noise standards to land during those hours.

In spite of these efforts, the State of California, through its Department of Transportation (CalTrans), has attempted to impose a more restrictive curfew through regulations authorized by state statute. See Cal. Pub. Util. Code s 21669 (West Supp. 1981).

These would require the measurement of noise at all affected airports and forbid operation of those airports which exceed a preset noise level. See 21 Cal.Admin.Code s 5000-5080.5 (1977).[FN1] Airports which routinely exceed this level cannot operate without a variance issued under procedures established by the regulations. Id. s 5062.[FN2]

[FN1] These regulations provide both substantive provisions setting the level of permissible noise, 21 Cal.Admin.Code ss 5001-5014 (1977), as well as a procedural mechanism for the enforcement of those levels, id. ss 5020-5080.5.

The regulations seek to measure ambient aviation noise under the Community Noise Equivalent Level Standard (CNEL). Id. s 5006(f) (1977). CNEL represents a scientific effort to quantify an average person's daily dosage of noise, but by no means is the only available standard. See 41 Fed.Reg. 51,522, 51,524 (1976).

[FN2] The district court found that most major California airports must routinely apply for a variance. 457 F.Supp. at 285. Under CalTrans' regulations, a variance is required unless the airport's "noise impact area" is zero. 21 Cal.Admin.Code s 5062 (1977). In Lindbergh Field's case it was determined that the noise impact area was approximately three-quarters of a square mile, requiring the Port District to apply for a variance. While the regulations allow the attachment of "reasonable conditions" to the grant of a variance, id. s 5075(b)(7), the state administrative law judge explicitly found that "(t)here are no realistic solutions presently available to bring Lindbergh Field into compliance with the State Noise Standards."

Lindbergh Field is in this category, and in January of 1977 the Port District applied for a variance permit pursuant to CalTrans' regulations.[FN3] A state administrative law judge granted the permit, subject to six conditions. The fourth condition lies at the heart of this lawsuit and provides:
Respondent San Diego Unified Port District is to retain the existing curfew .... Respondent is to extend this existing curfew to the extent that commercial air carriers will not be permitted to take off between the hours of 11:00 p. m. and 7:00 a. m. and commercial air carriers will not be permitted to land between the hours of 11:00 p. m. and 7:00 a. m. unless such aircraft meet FAR Part 36 requirements ....

[FN3] An earlier variance was granted after hearings in 1975-76. Clerk's Record at 1142-51.

Not willing to extend its curfew another two hours, the Port District sought to enjoin enforcement of the condition. It has contended that federal control of both airspace management and the sources of aircraft noise preempts CalTrans' ability to place such a condition on the variance.

After an initial procedural phase, [FN4] including the intervention of the Air Transportation Association of America, [FN5] the district court rendered its decision. 457 F.Supp. 283 (S.D.Cal.1978).

[FN4] The court below initially denied the injunction without prejudice until the Federal Aviation Administration had reviewed the proposed curfew, pursuant to the state administrative law judge's order. 457 F.Supp. at 286. Four months later the FAA responded by telephone and indicated that it would not become involved in the matter. Id. at 287. The court then proceeded to consider the injunction on the merits.

[FN5] The Air Transportation Association of America (ATAA) intervened as of right. Fed.R.Civ.P. 24(a)(2). Its complaint alleges that, in addition to being preempted, the proposed curfew violates the commerce clause. Since this case may be disposed of by preemption, we do not reach the commerce clause issues.

Relying primarily on City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), the court adopted the Port District's position on preemption and issued a preliminary injunction. CalTrans has appealed. The state and several cities have joined it as amici curiae. In addition, the United States [FN6] and several states have filed briefs amici curiae.
[FN6] The United States has adopted a somewhat peculiar position. It urges neither affirmance nor reversal but states that, in its opinion, this case turns on questions of state law, and it would be inappropriate for it to take a position. The United States does urge, however, that we definitively name the proprietor of Lindbergh Field, at least for purposes of the federal government's certification program. See note 32 infra.


I. Preemption and the Underlying Federal Policy

The Port District's attack on condition four rests primarily on the ground that federal law preempts state regulation of airspace management and control of the source of aircraft noise. [FN7] This preemption, it is claimed, renders CalTrans powerless to require the Port District to accept condition four.

[FN7] In the court below, CalTrans also claimed immunity under the Eleventh Amendment and asserted that the Port District lacked standing. It has abandoned these claims. While a state may waive immunity under the Eleventh Amendment, Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1283 (9th Cir. 1979), it may not also waive the issue of standing. See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231, 233 (9th Cir.), cert. denied, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502 (1980). We must independently inquire into the parties' standing.

While there are broad dicta that a political subdivision may never sue its maker on constitutional grounds, see id., 625 F.2d at 233-34, we doubt that the rule is so broad. See City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502 (1980) (White & Marshall, JJ., dissenting from denial of certiorari) ("Such a per se rule is inconsistent with Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968)") (establishment clause); Rogers v. Brockette, 588 F.2d 1057, 1067-71 (5th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35 (1979) (supremacy clause). See generally Comment, Municipal Corporation Standing to Sue the State: Rogers v. Brockette, 93 Harv.L.Rev. 586 (1980).

We need not resolve this question, however, because the court below granted the ATAA the status of an intervenor as of right. If the ATAA has standing, then we have jurisdiction to hear the case. City of South Lake Tahoe, 625 F.2d at 233. On the present record, we have no trouble finding that the ATAA has standing. It will suffer injury due to service rescheduling, see note 13 infra, and it has shown also that it is likely that a decree in its favor will redress this injury. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595 (1978).

The district court agreed and issued a preliminary injunction in favor of the Port District. On appeal, a preliminary injunction will not be reversed unless the lower court abused its discretion or based its decision on erroneous legal premises. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980).

CalTrans directs its arguments at the latter half of this test, claiming that the district court erred in relying on the City of Burbank case. To assess this claim, we inquire first into the applicable preemption doctrine.

The supremacy clause, U.S.Const., Art. VI, Cl. 2, invalidates any exercise of state power that unduly frustrates or obstructs the objectives of legitimate national policy. Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., --- U.S. ----, ----, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978); Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

In assessing any claim brought under this clause, we start from the position "that the historic police powers of the states (are) not to be superseded ... unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). See also City of Milwaukee v. Illinois, --- U.S. ----, 101 S.Ct. 1784, 1790, 68 L.Ed.2d 114 (1981); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977).

Where, as here, Congress has not enacted an explicit preemption clause, [FN8] state authority may still be displaced if an intent to preempt is "implicitly contained in (the federal statute's) structure and purpose." Jones, 430 U.S. at 525, 97 S.Ct. at 1309. See also City of Milwaukee, --- U.S. ----, 101 S.Ct. at 1790.

[FN8] By contrast, many types of aviation regulation are expressly and exclusively federal. For example, states may not regulate the "rates, routes or services of any air carrier" registered under federal law, 49 U.S.C. s 1305 (Supp. III 1979), and the federal government has declared it is "to possess and exercise complete and exclusively national sovereignty in the airspace of the United States." 49 U.S.C. s 1508(a) (1976).
Such an intent has been inferred when the state regulations could not be enforced "without impairing the federal superintendence of the field ...." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or when "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice, 331 U.S. at 230, 67 S.Ct. at 1152. See also Chicago & North Western Transp. Co., --- U.S. at ----, 101 S.Ct. at 1130.

Preclusion of state regulation is possible even in cases where the regulated entity can feasibly comply with both state and federal mandates. See Ray v. Atlantic Richfield Co., 435 U.S. 151 at 157-58, 98 S.Ct. 988 at 994, 55 L.Ed.2d 179; DeCanas v. Bica, 424 U.S. 351, 356-57 & n.7, 96 S.Ct. 933, 936-37 & n.7, 47 L.Ed.2d 43 (1976); Pennsylvania v. Nelson, 350 U.S. 497, 504-05, 76 S.Ct. 477, 481, 100 L.Ed. 640 (1956).

The key to the scope of federal preemption is the intent of Congress in enacting the applicable federal legislation. Malone, 435 U.S. at 504, 98 S.Ct. at 1189; Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963). If this intent does not appear in the statute, the above cases require us to evaluate the effect of the state action on the federal scheme to see if the state action impairs the objectives of national policy. Chicago & North Western Transp. Co., --- U.S. at ----, 101 S.Ct. at 1130; Ray, 435 U.S. at 157-58, 98 S.Ct. at 944; Hines, 312 U.S. at 67-68, 61 S.Ct. at 404. [FN9]

[FN9] See generally Wiggins, Federalism Balancing and the Burger Court: California's Nuclear Law as a Preemption Case Study, 13 U.C. Davis L.Rev. 1 (1980); Note, A Framework for Preemption Analysis, 88 Yale L.J. 363 (1978); Note, The Preemption Doctrine: Shifting Perspectives on Federalism and the Burger Court, 75 Colum.L.Rev. 623 (1975).
Congress formulates the policies of the national government in its acts and resolutions. Our task is to interpret applicable congressional acts and to define the national policy to discern whether a given state regulation or, for that matter, any state regulation, could be compatible with the attainment of the national policy's objectives. Jones, 430 U.S. at 525, 97 S.Ct. at 1309; DeCanas, 424 U.S. at 358 n.7, 96 S.Ct. at 937; Florida Lime & Avocado Growers, Inc., 373 U.S. at 142, 83 S.Ct. at 1217. This case requires us to assess the effect of the state regulation on national aviation and aircraft noise policy.

The state regulation in question is easily defined. The state, through its police power, has sought to regulate and restrict aircraft flights directly by requiring the Port District to adopt a more extensive curfew than the Port District itself thought necessary and appropriate.

The interpretation and definition of applicable federal policies is more difficult. National policies with respect to aviation and noise are sufficiently complex that we must consider what is implicit in the federal regulatory scheme, its underlying assumptions, intended purposes, and desired effects. Jones, 430 U.S. at 525, 97 S.Ct. at 1309.

Much of this task has been performed by the Supreme Court. In City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), it held that a local non-proprietary airport curfew was preempted.

At issue was a city's imposition, under its police power, of an 11:00 p. m. to 7:00 a. m. curfew on the operation of Hollywood-Burbank Airport, owned and operated by Lockheed. Lockheed sought to enjoin the city's ordinance, asserting that federal regulation and administrative action had preempted such legislation.

The Supreme Court affirmed this court's and the district court's finding of preemption. After extensively surveying the Federal Aviation Act of 1958 and the Noise Control Act of 1972, the Court found that Congress unequivocally intended that the federal government have "full control over aircraft noise, pre-empting state and local control," id. at 633, 93 S.Ct. at 1859, and that this congressional intent left "no room for local curfews or other local controls." Id. at 638, 93 S.Ct. at 1862. [FN10] Further, in order to fulfill the objectives of both acts, "a uniform and exclusive system of federal regulation" was "require(d)." Id. at 639, 93 S.Ct. at 1862. Finally, the Court accepted the Solicitor General's statement that the federal government had preempted the field of "airspace management." Id. at 627, 639, 93 S.Ct. at 1856, 1862. See also 49 U.S.C. s 1348 (1976) (FAA authority over airspace control and facilities). Burbank's curfew was held to invade these preempted areas by regulating both the time when planes could fly and the source of noise emission. City of Burbank, 411 U.S. at 638-39, 93 S.Ct. at 1862. [FN11]

[FN10] In surveying the applicable legislative history, the Court quoted, 411 U.S. at 635, 93 S.Ct. at 1860, the Senate Report which stated that, under the proposed legislation, "(s)tate and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft." S.Rep.No.1353, 90th Cong. 2d Sess. 6 (1968), reprinted in (1968) U.S.Code Cong. & Ad.News 2688, 2694.

[FN11] The Court also stated that "the pervasive nature of the scheme of federal regulation of aircraft noise leads us to conclude that there is preemption." City of Burbank, 411 U.S. at 633, 93 S.Ct. at 1859. Although the pervasiveness of federal regulation has been little used recently as an independent ground for finding the congressional intent necessary for completely preempting state regulation, see, e. g., DeCanas v. Bica, 424 U.S. 351, 359-60, 96 S.Ct. 933, 938, 47 L.Ed.2d 43 (1976); New York Dep't of Social Servs. v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2513, 37 L.Ed.2d 688 (1973), it is not a dead letter in preemption analysis. See Conference of Fed. Sav. & Loan Ass'ns v. Stein, 604 F.2d 1256, 1260 (9th Cir. 1979), aff'd mem., 445 U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754 (1980) (pervasive regulation of federal savings and loan associations evinces congressional intent to exclude state regulatory control). In any event, it is clear that City of Burbank did not rest solely on pervasive regulation. Indeed, the national character of the subject matter was said to be "the critical issue." City of Burbank, 411 U.S. at 625, 93 S.Ct. at 1855 (citing Cooley v. Board of Wardens, 12 How. (53 U.S.) 299, 13 L.Ed. 996 (1852)). See also id. at 639, 93 S.Ct. at 1862.


Continued in Part Two