The district court held correctly that City of Burbank controls here. Here, as in City of Burbank, a governmental entity was attempting to impose a mandatory curfew on an unwilling airport proprietor. Its authority for the curfew derived from the police power, again as in City of Burbank.[FN12] Condition four would affect many flights,[FN13] whereas the City of Burbank curfew affected only one flight per week. Id. at 626, 93 S.Ct. at 1856. Stare decisis seems to dictate affirmance.

[FN12] The noise regulations seek to regulate unwanted noise for the public good, 21 Cal.Admin.Code ss 5005, 5010 (1977), and apply not just to municipal airports, but to "all existing and future potential airports in California which are (open to the public.)" Id. s 5004. This purpose, and the regulations' almost universal application, are both hallmarks of the police power. See, e. g., New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 661, 6 S.Ct. 252, 258, 29 L.Ed. 516 (1885); Miller v. Board of Public Works, 195 Cal. 477, 484-85, 234 P. 381 (1925); 6 E. McQuillin, The Law of Municipal Corporations s 24.04, at 425-26 (3d ed. 1980).

Moreover, the CNEL regulations have been held to be promulgated pursuant to California's "police power control." Air Transp. Ass'n of America v. Crotti, 389 F.Supp. 58, 65 (N.D.Cal.1975) (three-judge court).

[FN13] At least five arrivals and four departures daily would be affected directly by the curfew, without accounting for the effect on connecting flights. Clerk's Record at 616, 618, 821.

Justice Douglas concluded City of Burbank by stating that the Court was "not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it." 411 U.S. at 640, 93 S.Ct. at 1863.

CalTrans asserts that the passage of the Quiet Communities Act of 1978, Pub.L.95-609, 92 Stat. 3079 (1978), [FN14] demonstrates Congress' intent to reject total federal control of the source of aircraft noise and to involve local governments in the national effort to abate such noise. In essence, this Act provides for a nationwide quiet communities program administered by local government and funded by the federal treasury.

[FN14] Codified in 42 U.S.C. ss 4905, 4910, 4913, 4918, 6901, 6903, 6907, 6913, 6922, 6923, 6925-28, 6947, 6961, 6962, 6964, 6972, 6973, 6977, 6980-6984; 49 U.S.C. s 1431 (Supp. III 1979).

(D)eveloping abatement plans for areas around major transportation facilities (including airports, highways, and railyards) and other major stationary sources of noise, and where appropriate, for the facility or source itself ; .... (emphasis added)

CalTrans cites the italicized portion of the statute and argues that Congress has explicitly authorized local governments to regulate the "source" of aviation noise unless such regulation would be in direct conflict with existing federal regulation. We disagree.

The success of CalTrans' argument rests on a strained interpretation of the statute. First, it interprets "sources" in the last phrase to include transitory sources such as airplanes. This is contrary to the statutory scheme, which distinguishes transportation facilities, such as railyards and airports, from stationary sources, such as factories.

Second, CalTrans construes "abatement plans" to include the control of the sources of aircraft noise. This construction was rejected in City of Burbank and, as we discuss below, is inconsistent with other parts of the same statute.

Finally, CalTrans' argument that "where appropriate" means "where possible" or "where not in direct conflict with a federal regulation" begs the pivotal question of this appeal, namely, what scope of state regulation is left unpreempted by federal law. If Congress desired the result CalTrans advocates, it could have drafted the statute to avoid these strained constructions.

Instead, in subsection (c)(1), Congress stated that "no actions, plans or programs hereunder shall be inconsistent with existing Federal authority under (the Noise Control Act of 1972) to regulate sources of noise in interstate commerce." This prohibition was written against the background of City of Burbank's holding that federal authority preempted local control of the sources of aviation noise. We hold that Congress intended to continue such preemption. [FN15]

[FN15] We note that other congressional acts subsequent to City of Burbank indicate a continuing intent to preclude local regulation. For example, the Aviation Safety and Noise Abatement Act of 1979, Pub.L.No.96-193, 94 Stat. 50 (1980) (to be codified in scattered sections of 49 U.S.C.) provides for the establishment of a national aviation noise measurement system, arguably superseding local systems such as CNEL. Id. s 102 (to be codified in 49 U.S.C. s 2102).

Once this system is in place, the Act provides for procedures under which airport proprietors may secure federal immunity from excessive aircraft noise liability. Id. s 107 (to be codified in s 49 U.S.C. s 2107). Although we believe that the Airline Deregulation Act of 1978, Pub.L.95-504, 92 Stat. 1708 (1978) (codified in scattered sections of 49 U.S.C.) is not directly applicable because of its economic objectives, we note that Congress expressly preempted any state regulation affecting "rates, routes or services of any air carrier ...." Id. s 4(a), 49 U.S.C. s 1305(a) (Supp. III 1979) (emphasis added). These acts are some indication that Congress has not changed its collective mind regarding the wisdom of forbidding local regulation of the sources of aircraft noise. Indeed, the Aviation Safety and Noise Abatement Act of 1979 may indicate exactly the opposite.

An object causing noise can be controlled directly, either by restricting its use or by prescribing noise emission standards. See, e.g., 14 C.F.R., Part 36 (1980). Quite independently of source control the effects of noise may be mitigated. Examples of such steps are compensating those adversely affected, [FN16] using the zoning power to assure harmonious development, [FN17] baffling existing noise, [FN18] or resettling those affected by the noise. [FN19]

FN16. See, e. g., Greater Westchester Homeowners Ass'n v. City of Los Angeles, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329 (1979), cert. denied, 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d 22 (1980).

FN17. See, e. g., Wright v. County of Winnebago, 73 Ill.App.3d 337, 29 Ill.Dec. 347, 391 N.E.2d 772 (1979).

FN18. See, e. g., Air Transp. Ass'n of America v. Crotti, 389 F.Supp. 52, 64-65 (N.D.Cal.1975) (three-judge court).

FN19. See, e. g., Noise Reg. Rep. (BNA), No. 158, at A-3 (1980); id., No. 162, at A-8 to A-10 (1980).

[FN20] See, e. g., S.Rep.No.1353, 90th Cong., 2d Sess. 7 (1968), reprinted in (1968) U.S.Code Cong. & Ad.News 2698, 2694 ("Of course, the authority of units of local government to control the effects of aircraft noise through the exercise of land use planning and zoning powers is not diminished by the bill.") Against this background, the Quiet Communities Act continues the joint participation alluded to. But see Aviation Safety and Noise Abatement Act of 1979, Pub.L.96-193, s 107, 94 Stat. 53 (1980) (to be codified in 49 U.S.C. s 2107) (indicating increased federal regulation).

This interpretation of City of Burbank is consistent with its underlying rationale. The Court acknowledged that "(c)ontrol of noise is of course deep-seated in the police power of the states," 411 U.S. at 638, but recognized that effective control of aircraft source noise is presumptively a subject for uniform federal regulation. See, e. g., id. at 625, 627-28, 639, 93 S.Ct. at 1855, 1856-57, 1862. See also National Aviation v. City of Hayward, 418 F.Supp. 417, 425 n.13 (N.D.Cal.1976).

As the Court in City of Burbank noted, Congress foresaw that local regulation of airspace use and the sources of aviation noise would severely limit the flexibility of FAA in controlling air traffic flow," 411 U.S. at 639, 93 S.Ct. at 1862, and would "increase congestion, cause a loss of efficiency, and aggravate the noise problem." Id. at 628, 93 S.Ct. at 1857. [FN21] It was but a short step from these findings to the holding that local regulation of the source of aircraft noise was preempted. [FN22]

[FN21] Despite these considerations, CalTrans argues that the agencies entrusted by Congress to regulate aircraft noise have abdicated their duties, thus removing City of Burbank's predicate of pervasive federal regulation. In the void purportedly so created, CalTrans asserts state regulation may occur. We find this argument without merit from both factual and theoretical points of view.

In 1976, for example, the United States Department of Transportation issued its report on federal aviation noise abatement policy. It stated: "The federal government has preempted the areas of airspace use and management, air traffic control, safety and the regulation of aircraft noise at its source," U. S. Dep't of Transp., Federal Aviation Admin., Aviation Noise Abatement Policy 34 (1976) (emphasis added) ((hereinafter "Noise Abatement Policy")).

The same report concluded that "(s)tate and local governments may protect their citizens through land use controls and other police power measures not affecting aircraft operations." Id. (emphasis added). See also id. at 31-32.

CalTrans argues, however, that this report adopts the dictum from Air Transp. Ass'n of America v. Crotti, 389 F.Supp. 52 (N.D.Cal.1975) (three-judge court) to the effect that states may use their police power to coerce political subdivisions to use proprietary powers. See id. at 64 n.2; Noise Abatement Policy, supra, at 33.

The correct interpretation of this language from Crotti is discussed below, see pp. 1314-1316 infra. The main point, however, is that this asserted state authority to coerce is nowhere mentioned in those sections of the report which outline the differing functions of proprietors and local governments. See Noise Abatement Policy, supra, at 34.

Other federal agencies have agreed with the report's conclusion that direct control of the source of aircraft noise is federally preempted. See Environmental Protection Agency, Model Noise Control Ordinance s 6.2.8(b) (1979); Environmental Protection Agency, Report on Aircraft- Airport Noise to the United States Senate Committee on Public Works, 93d Cong., 1st Sess. 56-59, 96-97 & 105 (1973); Civil Aeronautics Bd., Implementation of Preemption Provisions of the Airline Deregulation Act of 1978), 44 Fed.Reg. 9948, 9951 (1979).

CalTrans is not helped even if we accept the factual validity of its initial assertion. It falls considerably short of undercutting the regulatory predicate of City of Burbank so as to override the presumption of continued validity that we must accord to the definitive interpretation of federal statutes by the Supreme Court.

[FN22] The proposition that the federal government has preempted the area of flight control regulation to eliminate or reduce noise has been accepted without contrary authority by numerous courts which have addressed the subject. See City of Blue Ash v. McLucas, 596 F.2d 709, 712 (6th Cir. 1979); British Airways Bd. v. Port Authority of New York, 558 F.2d 75, 83-85 (2d Cir. 1977); National Aviation v. City of Hayward, 418 F.Supp. 417, 420-21 (N.D.Cal.1976); Air Transp. Ass'n of America v. Crotti, 389 F.Supp. 58, 62 (N.D.Cal.1975) (three-judge court); Wood v. City of Huntsville, 384 So.2d 1081, 1083-84 (Ala.1980); Greater Westchester Homeowners Ass'n v. City of Los Angeles, 26 Cal.3d 86, 93-97, 160 Cal.Rptr. 733, 603 P.2d 1329 (1979), cert. denied, 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d 22 (1980); San Diego Unified Port Dist. v. Superior Court, 67 Cal.App.3d 361, 366-69, 136 Cal.Rptr. 557, cert. denied, 434 U.S. 859, 98 S.Ct. 184, 54 L.Ed.2d 132 (1977); Aaron v. City of Los Angeles, 40 Cal.App.3d 471, 487-91, 115 Cal.Rptr. 162 (1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975); Village of Bensenville v. City of Chicago, 16 Ill.App.3d 733, 306 N.E.2d 562 (1973); Opinion of the Justices, 359 Mass. 778, 271 N.E.2d 354 (1971); Marshall v. Consumers Power Co., 65 Mich.App. 237, 237 N.W.2d 266 (1975) (dicta); Garden States Farms, Inc. v. Bay, 77 N.J. 439, 390 A.2d 1177 (1978); Township of Hanover v. Town of Morristown, 135 N.J.Super. 529, 343 A.2d 792 (1975).

[FN23] The court invalidated single event noise level standards (SENEL), which imposed penalties on the owner of any aircraft that exceeded a preset noise level. See Air Transp. Ass'n of America v. Crotti, 389 F.Supp. 58, 65 (N.D.Cal.1975) (three-judge court). The standards were to be enforced by the counties where the transgression took place. Id. at 62; Cal.Pub.Util.Code s 21669.4 (West Supp. 1981).

[FN24] We give weight to the reasoning of the Crotti decision to the extent it is persuasive, but it does not bind us. In any event, we find Crotti fully consistent with our analysis. When a district court is convened as a statutory three-judge panel, it still is sitting as a district court for purposes of stare decisis. Lewis v. Rockefeller, 431 F.2d 368, 371 (2d Cir. 1970). The distinctive purpose of a three-judge court as it was conceived and for most of the existence of its statutory authorization was not to add a greater than normal authority or finality to its decision, but rather to ensure that any decision that may enjoin enforcement of statutes be made after more extensive and considered deliberation than a single district judge might have the opportunity to undertake. See P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 967-79 (2d ed. 1973); D. Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964).

An unappealed decision of a statutory three-judge court has the same precedential weight for other courts of the district or circuit as any district court decision. Farley v. Farley, 481 F.2d 1009, 1012 (3d Cir. 1973); United States v. Crosson, 462 F.2d 96, 102 (9th Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 569, 34 L.Ed.2d 517 (1972); Russell v. Hathaway, 423 F.Supp. 833, 835 (N.D.Tex.1976) (three-judge court); Mazer v. Weinberger, 385 F.Supp. 1321, 1324 n.4 (E.D.Pa.1974), vacated on other grounds, 422 U.S. 1050, 95 S.Ct. 2671, 45 L.Ed.2d 704 (1975) (three-judge court); 1B J. Moore, Moore's Federal Practice P 0.402(1) n.29 (1980 & Supp. 1980-81).

Because of the parties' extensive discussion of Crotti, we add these remarks and those in text to explain why the decision is not binding on this appeal and why our holding is fully consistent with Crotti.

[FN25] In Crotti, the state argued in its brief, made part of the record in this case, that the regulations were not mandatory upon proprietors, but only suggestive. As the state put it, "(S)hould a proprietor choose to act using its unpreempted powers ... that is the business of the proprietor. The state has nowhere directed that proprietary power be used."

The observation that a state has a power in no way implies any doubt about equally well-settled limits to that power, such as federal preemption. The Crotti decision nowhere intimidated that the power to regulate subdivisions was unlimited by the Constitution. Cf. National Aviation v. City of Hayward, 418 F.Supp. 417, 421 (N.D.Cal.1976) ("it seems clear that if this (curfew) was passed by a state ... not the proprietor of the airport, it would run afoul of Burbank ....")

Our analysis of the pertinent state and federal regulations leads us to conclude that the curfew imposed by condition four impinges on airspace management by directing when planes may fly in the San Diego area, City of Burbank, 411 U.S. at 627, 639, 93 S.Ct. at 1856, 1862, and on federal control of aircraft noise at its source by restricting the permissible flight times of planes solely on the basis of their noise emissions. Id. at 633, 638, 93 S.Ct. at 1859, 1862. The state has attempted to act in an area preempted by the federal government and its actions are void.

It is asserted, however, that even if City of Burbank is still a correct statement of federal policies, CalTrans fits within a recognized exception to its holding. We next consider that argument.

The City of Burbank Court recognized that Congress singled out airport proprietors and gave them special, although undefined, leeway in controlling the sources of aircraft noise directly. City of Burbank, 411 U.S. at 635-36 n.14, 93 S.Ct. at 1860-61 n.14. See Santa Monica Airport Ass'n v. City of Santa Monica, 647 F.2d 3 (9th Cir. 1981).

CalTrans asserts it is a proprietor of Lindbergh Field and that the proprietor exception is broad enough to encompass CalTrans' regulations. We need not address the scope of the exception as CalTrans is not a proprietor within the meaning of City of Burbank.

The origin of the proprietor exemption appears in a letter by the Secretary of Transportation addressed to the Senate Commerce Committee regarding the 1968 amendments to the Federal Aviation Act. The letter, concurred in by the Committee, stated in part that the "proposed legislation ... will not prevent airport proprietors from excluding any aircraft on the basis of noise considerations." S.Rep.No.1353, 90th Cong., 2d Sess. 7 (1968), reprinted in (1968) U.S.Code Cong. & Ad.News 2688, 2693.