San Diego Unified Port District v. Gianturco (concluded)


The rationale for this exception is clear. Since airport proprietors bear monetary liability for excessive aircraft noise under Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), fairness dictates that they must also have power to insulate themselves from that liability. [FN26] But before an entity may possess this power, it must bear the responsibility, either actual or potential, for excessive aircraft noise. [FN27]

[FN26] British Airways Bd. v. Port Authority of New York, 558 F.2d 75, 83 (2d Cir. 1977); Lockheed Air Terminal, Inc. v. City of Burbank, 457 F.2d 667, 674 n.8 (9th Cir. 1972), aff'd 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973); Noise Abatement Policy, supra note 21, at 32, 50. See also 34 Fed.Reg. 18,355 (1969); S.Rep.No.1353, 90th Cong., 2d Sess. 7 (1968), reprinted in (1968) U.S.Code Cong. & Ad.News 2688, 2693.

[FN27] As stated in the Noise Abatement Policy, supra note 21, at 50: The airport proprietor is closest to the noise problem, with the best understanding of both local conditions, needs and desires, and the requirements of the air carriers and others that use his airport. The proprietor must weigh the costs the airport and the community must pay for failure to act, and consider those costs against any economic penalties that may result from a decision to limit the use of the airport through curfews or other restrictions for noise abatement purposes.

It has not been demonstrated that, under the current allocation of powers, CalTrans would be liable for excessive aircraft noise from Lindbergh Field under Griggs. There, the question was whether the county, as owner and operator of an airport, was liable for uncompensated takings of air easements necessary for the airport's operation. The other candidate for liability was the United States, due to its control of all navigable airspace. The Court found that the county was liable for the easements. 369 U.S. at 89, 82 S.Ct. at 533.

Among the bases given in Griggs for constitutional liability, or proprietorship for City of Burbank purposes, were the county's ability to obtain the necessary approach easements, [FN28] and its status as promoter, lessor, and operator of the airport. [FN29] Griggs, 369 U.S. at 89, 82 S.Ct. at 533.

[FN28] See British Airways Bd. v. Port Authority of New York, 564 F.2d 1002, 1011 (2d Cir. 1977); Kirk v. United States, 451 F.2d 690, 694 (10th Cir. 1971), cert. denied, 406 U.S. 963, 92 S.Ct. 2059, 32 L.Ed.2d 350 (1972).

[FN29] See also Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1094-95 (6th Cir. 1978); Town of East Haven v. Eastern Airlines, Inc., 331 F.Supp. 16, 30-32 (D.Conn.1971); Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582, 585 n.1, 39 Cal.Rptr. 708, 394 P.2d 548 (1964). Griggs has been criticized. See, e. g., Note, Shifting Aircraft Noise Liability to the Federal Government, 61 Va.L.Rev. 1299 (1975); Note, Aircraft Noise Abatement: Is There Room for Local Regulation?, 60 Cornell L.Rev. 269 (1975).

These criteria (ownership, operation, promotion, and the ability to acquire necessary approach easements) comprise a federal definition of proprietors for preemption purposes. To the extent that state law provides these qualities, we inquire into the Port District's status under state law.

The California Legislature created the Port District in 1962. San Diego Unified Port District Act, 1962 Cal.Stats., Ch. 67, 1st Ex. Sess., codified in Cal.Harb. & Nav.Code, App. I (West 1978 & Supp. 1981). The Act granted the Port District power to: operate and promote an air terminal, id. s 4, govern itself, id. s 21, sue and be sued, id. s 23, hold real property and make contracts, id. ss 25, 31, condemn private property for public uses, id. s 21, as well as tax property for Port District purposes, id. ss 41, 45, 49.5.

California has also granted the Port District power to acquire air easements to alleviate the effect of aircraft noise on local residents. [FN30] Further, should the Port District desire to expand or begin new construction, the state provides for a limited relocation and compensation program for affected area residents. [FN31]

[FN30] Cal.Pub.Util.Code s 21652 (West Supp. 1981); Cal.Code Civ.Proc. s 1240.110 (West Supp. 1981); Senate Legislative Committee Comment to Public Utilities Code section 21652, reprinted in 58 West's Annotated California Codes, Public Utilities 120 (West Supp. 1981).

[FN31] Cal.Gov't Code ss 7260-7276 (West 1980 & Supp. 1981). Cf. Cal.Pub.Util.Code ss 21690.20-.29 (West Supp. 1980) (Los Angeles Airport Relocation Program).

Under state law then, the Port District is the owner, operator, and promoter of San Diego Airport. It has the power to acquire air easements for the airport's use and may be sued in its own right. In short, it bears every earmark of proprietorship as recognized in City of Burbank.

The state concedes this, but denies that the above analysis establishes the Port District as the sole proprietor of the airport facility. [FN32] California contends that, by virtue of the state's inherent power over its political subdivisions, CalTrans is also a proprietor.

[FN32] The identity of the proprietor or proprietors of Lindbergh Field has significance beyond City of Burbank's footnote 14. The federal government, appearing amicus curiae, desires to know who the proprietor is for its certification process under 49 U.S.C. s 1432 (1976). Section 1432 certificates are issued to airport operators who meet minimum safety standards, and enable the FAA to enforce its safety regulations. Currently, the Port District is the only entity listed as a proprietor under this certificate procedure. Clerk's Record at 685.
California's extensive grant of powers to the Port District fatally undercuts this argument. The state has seen fit to grant the Port District lands, [FN33] the ability to sue and be sued, and the power to operate and plan the airport. The district court found that, due to this delegation of authority, the state had no primary liability. 457 F.Supp. at 293-94. As the Port District is comprised of five San Diego area cities, [FN34] California's actions have passed any potential aircraft noise liability from all of the state's residents to the residents of these five constituent cities.
[FN33] CalTrans asserts that the tidelands on which Lindbergh Field sits are subject to a public trust of which California is both the settlor and the representative of the beneficiaries. See City of Coronado v. San Diego Unified Port Dist., 227 Cal.App.2d 455, 474-75, 38 Cal.Rptr. 834 (1964), appeal dismissed, 380 U.S. 125, 380 S.Ct. 806, 13 L.Ed.2d 792 (1965) (per curiam).

From this premise, CalTrans makes two arguments: first, that its capacity under this trust allows it to direct the activities conducted on the land subject to the trust; and second, that the State Aeronautics Act, which authorizes the regulations at issue here, must be read as a pro tanto amendment of the Port District's original tidelands grant.

An inquiry into the scope of California's rights under the tidelands trust theory, see generally, Marks v. Whitney, 6 Cal.3d 251, 98 Cal.Rptr. 790, 491 P.2d 374 (1971); Eikel & Williams, The Public Trust Doctrine and the California Coastline, 6 Urb.Law. 519 (1974), does not aid our analysis. For purposes of federal proprietorship, the key factor is Griggs liability. Nothing in the materials cited by CalTrans or amici indicates that the State of California, as settler and representative of the beneficiaries of the trust, bears fiscal liability for misuse of the Port District's land. At oral argument, counsel for CalTrans explicitly disclaimed such primary liability. Without such liability, however, congressional intent, as found in City of Burbank, precludes control under the police power, and CalTrans' argument fails.

CalTrans' pro tanto amendment theory suffers a similar fate. In addition to not resolving the question of Griggs liability, the authorities cited by CalTrans and the state are of no help. The state asserts that People ex rel. San Francisco Bay Conservation & Dev. Comm'n v. Town of Emeryville, 69 Cal.2d 533, 72 Cal.Rptr. 790, 446 P.2d 790 (1968), and Mallon v. City of Long Beach, 44 Cal.2d 199, 282 P.2d 481 (1955), stand for the proposition that any act by the state legislature automatically affects every tideland grant. While we recognize that the authority to rescind such grants remains in the legislature, see Eikel & Williams, supra, at 552-53, we find these cases inapposite.

In Emeryville, for example, the legislature had created a special commission especially for the administration of tidelands in the San Francisco Bay area. In upholding an injunction in favor of the special commission and against Emeryville, the titleholder of the lands, the court held that the legislature retained the power to amend tideland grants when to do so would serve the "general statewide interest." 69 Cal.2d at 549, 79 Cal.Rptr. 790, 446 P.2d 790. But there the affected lands were specifically mentioned in the superseding legislation, and the result was within the intent of the legislation.

Here, by contrast, the tidelands are not mentioned in the State Aeronautics Act, nor does it appear in that act that the legislature intended to use its power over California's tidelands to achieve the objectives of the legislation.

Mallon involved similar facts. There, the City of Long Beach sued to recover profits from natural resources located in the tidelands. The state legislature had by state law allocated them to the state, and the California Supreme Court held that the legislature had the power to make that amendment to the initial grant of the tidelands. 44 Cal.2d at 207, 282 P.2d 481.

Neither case contains language supporting the proposition that each of the many acts of the California legislature automatically affects the terms of every tidelands grant made since 1850. The result would be utter chaos, and we do not attribute that to California's legislature.

The cases cited by CalTrans and amici are better read to stand for the proposition that legislation may specifically alter a municipality's tidelands grant. Here, the scope of the trust would not allow CalTrans to direct the Port District's activities because we have not been shown that the state legislature specifically exercised its power over the Port District's tidelands when enacting the State Aeronautics Act. Further, the legislature addressed itself to the particular lands at issue here when it created the Port District in 1962. It said that the Port District "shall hold such lands in trust for the uses and purposes and upon the conditions which are declared in this act." Cal.Harb. & Nav.Code, App. I, s 14 (West 1978).

The uses, purposes and conditions included the "acquisition, construction, maintenance, operation, development and regulation of ... air terminal facilities" and the promotion of "commerce, navigation, fisheries and recreation ...." Id. s 4. See also id. s 87. The terms of this grant have not been explicitly amended since the Port District's creation, and we decline to do so now.

[FN34] The cities of Chula Vista, Coronado, Imperial Beach and National City select one commissioner each to sit on the Port District's governing board. San Diego, due to its relative size, selects three commissioners for a total of seven. Cal.Harb. & Nav.Code, App. I, s 16 (West 1978).

City of Burbank's proprietor exception looks to who will pay for the taking of air easements. The state, through the Port District Act, has unequivocally stated that the Port District and the residents of its constituent cities will foot the bill. [FN35] Since CalTrans bears no liability for excessive aircraft noise at Lindbergh Field, it is not now a proprietor under federal law, and cannot avail itself of City of Burbank's footnote 14. [FN36]
[FN35] It may by true that California could assume liability for excessive noise at Lindbergh Field, but we deal in actualities and not possibilities. California has four methods for its political subdivisions to pay judgments, see Cal.Gov't Code ss 970-991.2 (West 1980 & Supp. 1981). Absent these, a subdivision may declare bankruptcy under Chapter Nine of the Federal Bankruptcy Act to eradicate its debt. See 11 U.S.C. ss 901-946 (Supp. III 1979).

Nowhere is it mandated that the state will be ultimately liable for the Port District's judgments. The Port District, without further and uncertain state action, bears alone the brunt of aircraft noise liability. As such, it is the proprietor for purposes of City of Burbank's footnote 14.

[FN36] In its reply brief CalTrans argued, for the first time, that this interpretation of federal law would render it unconstitutional under National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). CalTrans did little more than cite National League of Cities, however, and we are left to guess precisely what it meant to argue. Under these circumstances we may not consider the question. Levy v. Urbach, 651 F.2d 1278, 1280 - 1281 n.3, (9th Cir., 1981). CalTrans' "failure to present a coherent argument removes the point from our permissible range of inquiry." Id.

Moreover, state law precludes the argument that CalTrans and the district are dual proprietors. Section 21632 of the California Public Utilities Code provides:
(CalTrans) shall not acquire any airport ... owned or controlled by a political subdivision ... without the consent of the political subdivision.
This constitutes a procedural barrier that the state has erected to its acquisition of Lindbergh Field and, derivatively, to the assumption of proprietorship status.

CalTrans makes the final argument that, since the state could install CalTrans as operator and proprietor of Lindbergh Field by statute, the state can exercise the lesser power of assuming the proprietor's function of direct flight regulation. The argument fails because it confuses the existence of power with its exercise. The state cannot confer proprietor status on CalTrans simply by a course of dialectics when its own political system forbids that result.

The judgment is AFFIRMED.

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