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.,
Adriana GIANTURCO et al., Defendants-Appellants
(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.
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**] Of the Central District of California.
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]
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."
[FN3] An earlier variance was granted after hearings in 1975-76. Clerk's Record at 1142-51.
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).
[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.
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.
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).
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.
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]
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]
[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.