The City of Naples Airport Authority (NAA) prohibited Stage 2 aircraft flights Naples Airport. After conducting an investigation, FAA's Director of Airport Safety and Standards, David Bennett, issued his determination [n.1] on March 10, 2003, concluding that Federal law preempts the Stage 2 ban at Naples Airport. He determined further that the ban was inconsistent with 49 U.S.C. § 47107(a)(1) [n.2] and Grant Assurance No. 22, [n.3] both of which require that an airport that receives Federal grants be available for public use on reasonable conditions and without unjust discrimination. As a result of the determination, the Director ordered that until NAA rescinds or takes formal action to stop the enforcement of the ban, the FAA would withhold approval of any applications submitted by NAA for funds apportioned under 49 U.S.C. §§ 47114(c) and (d) and any application for discretionary grants authorized under 49 U.S.C. § 47115.

[1] Under 14 C.F.R. § 16.105.

[2] It is provided in 49 U.S.C. § 47107(a)(1):

(a) General Written Assurances -- The Administrator of the Federal Aviation Administration may approve a project grant application under this subchapter for an airport development project only if the Administrator receives written assurances, satisfactory to the Administrator that

(1) the airport will be available for public use on reasonable conditions and without unjust discrimination.

(Emphasis added.)

[3] Grant Assurance No. 22, entitled "economic nondiscrimination" implements 49 U.S.C. § 47107(a)(1)-(6), and provides that a Federally-obligated airport sponsor "will make its airport available as an airport for public use on reasonable terms and without unjust discrimination, to all types, kinds and classes of aeronautical users." (Bennett Direct at 7.)

1. Whether the NAA has a proprietary interest in reducing noise from aircraft using the airport sufficient to bring the Stage 2 ban within the scope of the proprietary powers exception to Federal preemption, such that the Stage 2 ban is not preempted by Federal law.

2. Whether the NAA's ban on Stage 2 aircraft is consistent with its statutory and contractual obligation to make its airport available for public use on reasonable terms to all types, kinds, and classes of aeronautical activities.

3. Whether the NAA's ban on Stage 2 aircraft is consistent with its statutory and contractual obligation to make its airport available for public use without unjust discrimination to all types, kinds, and classes of aeronautical activities.

4. Whether the Airport Noise and Capacity Act of 1990 (ANCA), 49 U.S.C. § 47521, et seq., affects the applicability of the statutory and contractual grant assurance obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 to the NAA's Stage 2 ban.

5. Whether National Business Aviation Association v. City of Naples Airport Authority, 162 F. Supp. 2d 1343 (M.D. Fla. 2001) is binding on the FAA in its administrative adjudication of the issues related to the Stage 2 ban in its Notice of Investigation. [n.4]

[4] The court held in this case that: 1) NAA could base the ban on Stage 2 aircraft on a noise contour below DNL 65 dB; 2) the Aviation Safety and Noise Abatement Act (ASNA) and the ANCA and their respective implementing regulations (14 C.F.R. Parts 150 and 161) did not preempt NAA's authority to consider noise levels below DNL 65 dB as the basis for the access restriction; and 3) the access restriction did not violate the Commerce Clause. National Business Aviation Ass'n v. Naples Airport Auth., 162 F. Supp. 2d. 1343 (M.D. Fla. 2001).

[5] The Hearing Officer's findings have been rearranged to be in the order that they answer the questions posed by the Deputy Chief Counsel in the Hearing Order. 1. The proprietary powers exception to Federal preemption does not require evidence of actual or potential liability due to excessive aircraft noise. Accordingly, the Stage 2 ban is not preempted by Federal law.

2. The ban is not consistent with NAA's statutory and contractual obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 respectively to make its airport available for public use on reasonable terms to all types, kinds, and classes of aeronautical activities.

3. The ban is consistent with NAA's statutory and contractual obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 respectively to make its airport available for public use without unjust discrimination to all types, kinds, and classes of aeronautical activities.

4. The ANCA, 49 U.S.C. § 47521, et seq., does not affect the applicability of the statutory and contractual grant assurance obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 to NAA's ban of Stage 2 aircraft.

5. The holding of the court in National Business Aviation Association v. City of Naples Airport Authority, 162 F. Supp. 2d 1343 (M.D. Fla. 2001) is not binding on the FAA in its administrative adjudication of the issues related to the Stage 2 ban raised in the Notice of Investigation.

In its appeal brief, the FAA Office of Airport Safety and Standards (AAS) challenges only the Hearing Officer's determination that the Stage 2 ban was not preempted under the proprietary powers exception. AAS, however, argues in its appeal brief that the Associate Administrator should not reach the preemption issue unless she reverses the Hearing Officer's decision that the Stage 2 ban is unreasonable. [n.6]

[6] The AAS is not appealing the finding that the Stage 2 ban was not discriminatory.

1) the National Business Aviation Association case is not binding on the FAA in its resolution of the issues raised in the Notice of Investigation;

2) ANCA does not supercede 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22 regarding Stage 2 restrictions; and

3) the Stage 2 ban is unreasonable, and therefore contrary to NAA's obligations under 49 U.S.C. § 47107(a)(1) and Grant Assurance No. 22, because it was not proven that noncompatible land uses exist in the DNL 60 dB contour.

[7] The Supreme Court has held on numerous occasions that "[a] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lying v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988). As the Supreme Court stated in another case, "[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 104 (1944). In light of this fundamental principle, the issue of whether Federal law preempts NAA from issuing the Stage 2 ban -- a constitutional law issue -- will not be decided here because resolution of the issue is not necessary.

I. Aviation Safety and Noise Abatement Act of 1979 (ASNA), P.L. 96-193 (49 U.S.C. App. 2101 et seq., codified at 49 U.S.C. § 47501 et seq.)

In 1979, Congress enacted the Aviation Safety and Noise Abatement Act (ASNA). Congress enacted the ASNA "to support Federal efforts to reduce noise and to encourage compatible land uses around civil airports in the United States because residential development adjacent to an airport may greatly restrict the usefulness of Federal funding at the airport." (Bennett Direct at 9.) Congress directed the FAA to issue regulations to: 1) establish a single system of measuring noise; 2) establish a single system for determining the exposure of individuals to noise; and 3) identify land uses that normally are compatible with various exposures of individuals to noise. 49 U.S.C. § 47502. Under ASNA, any airport operator may submit a noise exposure map showing any noncompatible land uses surrounding the airport on the date of the map's submission, and a noise compatibility program describing the measures that the operator has taken or proposes to take to reduce existing noncompatible uses and to prevent the introduction of additional noncompatible uses. 49 U.S.C. §§ 47503(a) and 47504(a). The ASNA authorized the operators to: (1) implement a preferential runway system; (2) restrict the use of the airport by any type or class of aircraft based on the aircraft's noise characteristics; (3) construct barriers and acoustical shielding, including soundproofing; (4) use flight procedures to control the operation of aircraft to reduce exposure of individuals to noise in the area surrounding the airport; (5) acquire land and interests such as air rights, easements, and development rights, to assure the use of property for purposes compatible with airport operations. 49 U.S.C. § 47504(a)(2). The Administrator must approve a noise compatibility program if, among other things, the proposed plan "is reasonably consistent with achieving the goal of reducing noncompatible uses and preventing the introduction of additional noncompatible uses." 49 U.S.C. § 47504(b)(1)(B).

II. 14 C.F.R. Part 150, "Airport Noise Compatibility Planning"

The FAA issued interim rules at 14 C.F.R. Part 150 in 1981 to implement portions of Title I of the ASNA. 46 Fed. Reg. 8316 (January 26, 1981). Part 150 prescribes requirements for airport operators who choose to develop airport planning compatibility programs and establishes a single system of measuring airport noise and a single system for determining the exposure of individuals to airport noise. [n.8] The final rule was published on December 18, 1984. 49 Fed. Reg. 49260 (December 18, 1984.)

[8] Section 150.9 provides as follows:

For purposes of this part, the following designations apply:

(a) The noise at an airport and surrounding areas covered by a noise exposure map must be measured in A-weighted sound pressure level ' | in units of decibels (dBA) in accordance with the specifications and methods prescribed under appendix A of this part.
(b) The exposure of individuals to noise resulting from the operation of an airport must be established in terms of yearly day-night average sound level (YDNL) calculated in accordance with the specifications and methods prescribed under appendix A of this part.

14 C.F.R. § 150.9(a).

Regarding land use compatibility, the FAA determined for purposes of Part 150 that "all land uses are considered to be compatible with noise levels less than L_dn [n.9] 65 dB" while noting that "local needs or values may dictate further delineation based on local requirements or determinations." [n.10] Part 150, Appendix A, Sec. A150.101(d). In Table 1, the FAA described in greater detail what land uses are compatible or incompatible with various yearly day-night average sound levels. It is stated in Table 1 that residential land uses are compatible with YDNL below 65 and incompatible with YDNL above 65. [n.11] The following statement appears beneath Table 1:

The designations contained in this table do not constitute a Federal determination that any use of land covered by the program is acceptable or unacceptable under Federal, State, or local law. The responsibility for determining the acceptable and permissible land uses and the relationship between specific properties and specific noise contours rests with the local authorities. FAA determinations under part 150 are not intended to substitute federal determined land uses for those determined to be appropriate by local authorities in response to locally determined needs and values in achieving noise compatible land uses.

(Emphasis added.)

[9] L_dn is the symbol for day-night average sound level (DNL). DNL "means the 24-hour average sound level in decibels, for the period from midnight to midnight, obtained after the addition of ten decibels to sound levels for the period between midnight and 7 a.m. and between 10 p.m. and midnight, local time." 14 C.F.R. § 150.7 (definition of day-night average sound level).

[10] As stated in the preamble to the interim rules:

By identifying "normally compatible land uses, Part 150 does not usurp or preempt the authority and responsibility of State and local authorities to exercise their police powers with respect to the development and implementation of local land use policy.

46 Fed. Reg. at 8317.

[11] The FAA based this determination upon the findings of the Federal Interagency Committee on Urban Noise (FICUN), which was formed in 1979 to develop Federal policy and guidance on noise. In its 1980 report, the FICUN found that standard residential construction was compatible with noise exposure from all sources up to DNL 65 dB. (Connor Direct at 4.)

[12] Noncompatible land use is defined as a "use of land that is identified under [Part 150] as normally not compatible with the outdoor noise environment (or an adequately attenuated noise reduction level for the indoor activities involved at the location) because the yearly day-night average sound level is above that identified for that or similar use under appendix A (Table I) of [Part 150]." 14 C.F.R. § 150.7 (definition of noncompatible land use).

[13] A noise compatibility program includes the actions proposed or taken by the airport operator reduce existing noncompatible land uses and to prevent the introduction of additional noncompatible land uses within the area covered by the noise exposure map. 14 C.F.R. § 150.7 (definition of airport noise compatibility program); 14 C.F.R. Part 150, App. B, Sec. B150.1(a).

[14] See also 14 C.F.R. § 150.35(b)(1), which provides that the: "Administrator approves programs under this part if --

(1) It is found that the program measures to be implemented would not create an undue burden on interstate or foreign commerce (including any unjust discrimination) and are reasonably consistent with achieving the goals of reducing existing noncompatible land uses around the airport and of preventing the introduction of additional noncompatible's land uses[.]

14 C.F.R. § 150.35(b).

III. Airport and Airway Improvement Act of 1982 (AAIA), Title V of P.L. 97-248 (49 U.S.C. App. § 2201 et seq.; codified at 49 U.S.C. § 47101 et seq.)

In 1982, Congress passed the Airport and Airway Improvement Act (AAIA), establishing the Airport Improvement Program and authorizing the FAA to make grants for airport development. Congress provided that the Administrator "may approve a project grant application ... for an airport development project only if the Administrator receives written assurances that (1) the airport will be available for public use on reasonable conditions and without unjust discrimination." 49 U.S.C. § 47107(a)(1). [n.15] [n.16] Grant assurance obligations remain in effect throughout the useful life of the facilities funded with grant money, but not more than 20 years. FAA Order No. 5190.6A, § 2-2a.

[15] For the other written assurances required by Congress, see the full text of 49 U.S.C. § 47107.

[16] The Director of AAS explained in his determination:

The FAA ensures that airport owners comply with their Federal grant obligations through the FAA's Airport Compliance Program. The program is based on the contractual obligations, which an airport owner accepts when receiving Federal grant funds[.] The's FAA Airport Compliance Program is designed to ensure the availability of a national's system of safe and properly maintained public use airports operated in a manner's consistent with the airport owners' Federal obligations and the public's investment in's civil aviation. The Airport Compliance Program ... monitors the administration of the valuable rights pledged by airport sponsors to the people of the United States in exchange for monetary grants ... to ensure that the public interest is being served.

(DD at 12.)

IV. Airport Noise and Capacity Act of 1990 (ANCA), Title IX, Subtitle D of P.L. 101-508 (49 U.S.C. App. § 2151 et seq., codified at 49 U.S.C. § 47521 et seq.)

In 1990, Congress passed the Airport Noise and Capacity Act of 1990 (ANCA). The authors included the following findings as the basis for the ANCA:

(1) aviation noise management is crucial to the continued increase in airport capacity;

(2) community noise concerns have led to uncoordinated and inconsistent restrictions on aviation which could impede the national air transportation system;

(3) a noise policy must be implemented at the national level;

(4) local interest in aviation noise management shall be considered in determining the national interest[.]

Stage 2 aircraft. -- [A]n airport noise or access restriction may include a restriction on the operation of stage 2 aircraft ... only if the airport operator publishes the proposed restriction and prepares and makes available for public comment at least 180 days before the effective date of the proposed restriction --

(1) an analysis of the anticipated or actual costs and benefits of the's existing or proposed restriction;
(2) a description of alternative restrictions;
(3) a description of the alternative measures considered that do not involve aircraft restrictions; and
(4) a comparison of the costs and benefits of the alternative measures to the costs and benefits of the proposed restriction.

[17] In September 1991, the FAA issued a final rule to phase out operations of Stage 2 aircraft weighing more than 75,000 pounds. 56 Fed. Reg. 48628 (September 25, 1991).

[18] Generally, Stage 1 airplanes are the loudest, Stage 2 airplanes are in the middle, and Stage 3 airplanes are the quietest. See 14 C.F.R. Part 36 for an explanation of the certification criteria for Stage 1, 2, and 3 aircraft.

[19] Subsection (c)(2) of Section 47524 requires FAA approval of Stage 3 aircraft restrictions. Subsection (c)(2)(A) requires that the Administrator shall not approve of any Stage 3 aircraft access restriction unless he finds that the proposed restriction is, among other things, reasonable, nonarbitrary and nondiscriminatory and does not create an undue burden on interstate or foreign commerce. 49 U.S.C. § 47524(c)(2)(A). There is no specific comparable provision in ANCA for FAA approval of Stage 2 restrictions that are reasonable, nonarbitrary and nondiscriminatory.

V. 14 C.F.R. Part 161, "Notice and Approval of Airport Noise and Access Restrictions"

The Administrator issued a final rule on September 25, 1991, to implement the ANCA's directive that the FAA develop a program for reviewing airport noise and access restrictions for Stages 2 and 3 aircraft. 56 Fed. Reg. 48661 (September 25, 1991). Part 161 includes "analysis and notice requirements for airport operators proposing Stage 2 aircraft noise and access restrictions." 14 C.F.R. § 161.1(b). Under Section 161.203(a), an airport operator may not implement a Stage 2 restriction unless the operator provides an analysis of the proposed restriction and public notice and opportunity for comment. 14 C.F.R. § 161.203(a).

Naples Municipal Airport (APF), built in 1941, [n.20] is a public-use airport, located about 20 minutes away from the center of the City of Naples, Florida. (DD, Item 2, Attachment 3, at 1.) It is located on 732 acres of land and has two runways. (Vasconcelos Direct at 7.) The airport has over 138,000 operations annually, and prior to the implementation of the Stage 2 ban, there were approximately 900 Stage 2 aircraft operations per year at Naples. (Vasconcelos Direct at 7 and 12.) As a result of the shortness of the runways and the limited runway pavement strength, the airport cannot accommodate large commercial jets. [n.21]

[20] (Soliday Direct at 2.)

[21] Large commercial jets and most air carrier service to this area fly in and out of such neighboring airports as Southwest Florida International Airport in Fort Myers, which is about 28 miles away. (Soliday Direct at 3.)

[22] (Soliday Direct at 2.) The City of Naples transferred the airport operational and management powers to NAA under lease for 99 years NAA. (Vasconcelos Direct at 7.)

[23] (Soliday Direct at 2.)

The FAA granted funds to NAA for planning and development under the Airport Improvement Program (AIP). (DD, Item 1 at 2.) Between 1982 and October 2001 (when the FAA issued the Notice of Investigation), the airport received $14,617,978 in Federal airport development assistance. (DD, Item 1 at 2.) When NAA agreed to accept these funds, it gave binding commitments in the form of grant assurances regarding the use, operation and maintenance of the airport. (Bennett Direct at 4.)

In 1996, the City of Naples revised its "Special Overlay District" to include all areas exposed to noise in excess of DNL 60 dB. Proposed development projects within the Special Overlay District are subject to review. (MacKenzie Direct at 6.)

In September, 1997, the FAA approved the Naples Airport's Noise Compatibility Plan Update. [n.24] The FAA approved NAA's adoption of the DNL 65 dB contour "as the threshold of incompatibility for residential areas." The FAA found that it was within the authority of the local land use planning jurisdictions, for zoning and land use planning purposes, to apply to the area within the DNL 60 dB noise contour "the same standards as Part 150 recommends for the DNL 65 dB noise contour as a buffer to ensure that residential and noise sensitive uses are not developed too close to the Airport." (DD, Item 2, Attachment 29, section 7.3.3.) [n.25]

[24] In NAA's Part 150 study for its the Revised Compatibility Program for 1996, it was noted that there were no incompatible land uses in the DNL 65 dB contour in the revised 2001 noise exposure map. The authors then recommended creating a buffer zone of compatible land use around that contour as a preventive measure. The study stated:

However, it is important to create a buffer of compatible land use around the airport. As such, another standard should be designated by the local land use planning agencies to ensure that residential and noise sensitive uses are not developed too close to the Airport. One possible standard is the 60 Ldn contour. Figure 5-2 depicts the 60 Ldn contour for the revised NEM including the noise abatement measures. Applying the land use's compatibility guidelines normally used for the 65 Ldn contour to this 60 Ldn contour should create an adequate area of compatible land use.

(DD, Item 2, Attachment 28, at 5-11.)

[25] Miguel Vasconcelos, in his written testimony, explained:

Through an earlier Part 150 study, the FAA had approved the DNL 60 dB as a buffer, and as a buffer only, meaning that no restrictive element in the 1997 NCP [Noise Compatibility Program] was directly tied to this buffer. So, as far as I was concerned, there was logic in using the DNL 60 dB as a protective area in conjunction with the DNL 65 dB. As a buffer area, a local restriction on construction in the DNL 60 dB contour would prevent new construction in an area that could return to the DNL 65 dB contour at some point in the future, if operations at the airport substantially increased or in other unpredictable circumstances. (Vasconcelos Direct at 17-18.)

[26] The Mayor testified that "[s]ince City policy was adopted setting the threshold of land use compatibility, the City has not granted any discretionary approvals for new residential development in areas exposed to noise in excess of the thresholds approved by City ordinance." (MacKenzie at 8.)

[27] Since that time, "the County has been hugely successful in restricting incompatible land uses within the DNL 60 dB contour as evidenced by the complete absence of residential development in the area." (Soliday Direct at 12.)

[28] According to the consultant's report written in June 2000, a 24-hour restriction on Stage 2 jet operations would result in a 91% reduction in the present population residing in the DNL 60 dB contour, reducing the current population of 1,682 to 152 persons. The consultant also concluded that a 24-hour ban on Stage 2 jet operations would remain the most effective alternative in 2005. (DD, Item 2, Attachment 1.)

[29] According to the FAA, Stage 2 turbojet aircraft comprise 28% of the general aviation and air taxi jet fleet in the United States. There are approximately 2000 Stage 2 turbojet aircraft. There are also nonjet Stage 2 aircraft. (Vasconcelos Direct at 11-12.)

Airports are instructed to adopt compatibility criteria established by local jurisdictions. A 1998 City of Naples ordinance established 60 dB DNL as the limit for land use compatibility within municipal limits. Within 60 dB DNL, the City Council must provide general development site plan ("GDSP") approval. In addition, Collier County has adopted 60 dB DNL as the limit for noise-land use compatibility and has amended the county Land Development Code to require noise notices within that contour.

In compliance with the FAA Part 150 guidance that airport proprietors defer to local authorities in determining land use compatibility criteria, [n.30] the NAA respects the City of Naples and Collier County 60 dB DNL land use compatibility criteria and considers residential land within the 60 dB DNL contour to be incompatible with aircraft noise and has established the goal of minimizing residential land within 60 dB DNL to the maximum feasible extent.

[30] Regarding this assertion, the Director of Airport Safety and Standards stated, "Part 150 does not 'direct' any such action, and certainly does not relieve the airport operator from the obligation to provide reasonable access under the federal grant assurances." (Bennett Direct at 16-17.)

[31] Similarly, NAA's consultants stated in an introductory letter to the Part 161 study:

In deference to established City of Naples and Collier County policies and regulations, the NAA adopted the goal of minimizing residential land use within the 60 decibel Day-Night Average Sound Level noise contour to the maximum feasible extent. The NAA has exhausted all reasonable non-restrictive measures to achieve this objective. Therefore, the NAA commissioned this consulting team to investigate benefits and costs of alternative new use restrictions that will assist in accomplishing its land use compatibility goal.

(DD, Item 2, Attachment 3.)

[32] The three alternatives examined in the Part 161 study were:

1) a night-time ban from 10 p.m. to 7 a.m. on Stage 2 jet aircraft operations;
2) a 24-hour restriction on Stage 2 jet aircraft operations; and
3) a night time ban from 10 p.m. to 7 a.m. of all operations.

The National Business Aviation Association and the General Aviation's Manufacturers Association filed a lawsuit against NAA in Federal district court, challenging the constitutionality of the Stage 2 ban. The parties filed cross-motions for summary judgment in June 2001. While these motions were pending, NAA passed Resolution 2001-6, extending the deferral of the ban's enforcement. (DD, Item 2, Attachment 14.) NAA noted in the resolution that if the district court ruled in its favor's and upheld the ban, NAA would be authorized to enforce the ban. (Id.)

NAA's consultants completed a draft of the Part 161 Supplemental Analysis on June 23, 2001. The consultants explained that they had prepared this analysis to address concerns presented by the FAA. It was concluded in this supplemental study that the 24-hour restriction of Stage 2 flights would be less expensive and would produce a greater population reduction in the airport noise study area (ANSA)(within the DNL 60 dB contour) than any other alternative.

As they wrote in the earlier study, the consultants explained that in proposing the Stage 2 ban, NAA was deferring simply to the land use determinations made by the local jurisdictions regarding the incompatibility of residential use with noise levels exceeding DNL 60 dB. The consultants explained that Part 150 DNL 65 dB threshold is too high in light of the outdoors-oriented life-styles in Naples. They wrote:

During the winter season, residential population grows approximately 71% and Stage 2 jet operations are approximately 300% higher than in the off-peak. The increased activity comes at the same time as residents open their windows and spend time outdoors. The fact that the population and aircraft operations peak during the months when the open-window, outdoor-focused lifestyle is most desirable, increases the justification for this local correction.

[33] The consultants mentioned that NAA had received oral and written threats claiming damages for inverse condemnation from the owner of Rock Creek Campground, which lies within the DNL 60 dB contour and numerous informal complaints from other property owners located in areas exposed to noise at levels below DNL 65 dB. The consultants wrote, "Considering the multitude of lawsuits throughout the country involving noise-related claims for inverse condemnation (takings), nuisance, and trespass, the NAA believes it is possible that it may be sued by the Rock Creek Campground property owner and/or other property owners dissatisfied with noise from the Airport and aircraft overflights." (DD, Item 2, Attachment 15 at 13.) After analyzing the legal standards for inverse condemnation and nuisance claims in Florida, the consultants concluded that NAA faced a "credible risk of liability." (DD, Item 2, Attachment 15 at 13-14.)

On February 7, 2001, the NAA passed Resolution 2001-8, implementing the Stage 2 ban.

On October 31, 2001, David L. Bennett, the Director of Airport Safety and Standards, issued a Notice of Investigation to the NAA under 14 C.F.R. Part 16, Subpart D, of the Rules of Practice for Federally Assisted Airport Proceedings. With the issuance of this Notice of Investigation, the FAA began its first formal investigation into the reasonableness and discriminatory nature of a noise-based aircraft access restriction since ANCA's enactment. (Bennett Direct at 7.)

The Director noted preliminarily in the Notice of Investigation that NAA had complied with the procedural requirements of Part 161, but that "compliance with the requirements of the grant obligations is a separate matter." (DD, Item 1, NOI at 1). The director noted that while airport access restrictions are subject to the ANCA and Part 161, they are also subject to 49 U.S.C. § 47107(a)(1)'s and Grant Assurance No. 22's requirement that the airport be available for public use on reasonable terms, and without unjust discrimination, to all types, kinds, and classes of aeronautical activities. (DD, Item 1, NOI at 3.) The Director stated that the prohibition against Stage 2 aircraft "may be inconsistent with NAA's obligation to provide reasonable and non-discriminatory access to the airport without granting exclusive rights." (DD, Item 1, NOI at 5.) The Director was also concerned about whether NAA had a proprietary interest in reducing noise from aircraft at the airport such that the Stage 2 ban was not preempted by Federal law. (DD, Item 1, NOI at 8.)

NAA filed its reply to the notice of investigation on December 3, 2001.

On March 10, 2003, the Director of the Office of Airport Safety and Standards issued his 96-page determination in this matter. The Director concluded that the Stage 2 ban conflicted with NAA's obligations under Grant Assurance No. 22 because the prohibition was unreasonable and discriminatory.

NAA requested a hearing on March 31, 2003, and the Deputy Chief Counsel issued a Hearing Order on April 10, 2003, in which he appointed a hearing officer and specified the issues to be resolved. (See supra at 2.)

A hearing was held on June 3-9, 2003. [n.34] The Hearing Officer issued his decision on June 30, 2003. (See supra at 3.)

[34] In May 2003, the Hearing Officer approved the requests to participate by the National Business Aviation Association (NBAA), General Aviation Manufacturers Association (GAMA), Airport Council International-North America, Aircraft Owners and Pilots Association (AOPA), City of Naples, Collier County, Air Transport Association of America (ATA), and Regional Airline Association (RAA). He rejected petitions submitted by the National Organization to Insure a Sound-Controlled Environment (NOISE), Florida Airport Council, Quiet Technology Aerospace, Inc., Board of County Commissioners of Pitkin County, Colorado, City of Scottsdale, and Michael R. Wood.

I. Whether the Federal District Court Decision Upholding the Stage 2 Ban Binds the FAA

In National Business Aviation Association v. Naples Airport Authority, 162 F. Supp. 2d 1343 (M.D. Fla. 2001), two aviation trade groups sued NAA in Federal district court, claiming that the ban on Stage 2 aircraft violated the Supremacy Clause and the Commerce Clause. The FAA was not a party to the suit and did not participate in it. The district court ruled in NAA's favor on a motion for summary judgment.

In the instant case, NAA argued before the Hearing Officer that the district court's decision binds the FAA under the doctrines of res judicata, collateral estoppel, and comity. The Hearing Officer held otherwise, and NAA has appealed this determination. This decision finds that the Hearing Officer's analysis was correct.

As the Hearing Officer found, res judicata or claim preclusion (the barring of claims from a previous case) does not apply because two critical elements are unmet. [n.35] First, the FAA was not a party to the previous case nor was it in privity with any of the parties. Second, the causes of action in the two cases are not the same.

[35] The elements of res judicata are as follows: (1) a court (of competent jurisdiction) has issued a final judgment on the merits; (2) the parties, or those in privity with them, are identical; and (3) the cause of action is the same in both cases. Allied Pilots Ass'n. v. Pension Benefit Guar. Corp., 2003 U.S. App. LEXIS 13898, *9 (D.C. Cir. July 11, 2003); Holland v. Nat'l Mining Ass'n, 309 F.3d 808, 813 (D.C. Cir. 2002); Citibank, N.A. v. Data Lease Financial Corp., 904 F.2d 1498, 1501 (11th Cir. 1990).

[36] In order for res judicata to apply, the nonparty must have had at least as much control as a formal co-party. 18 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE PROCEDURE § 4451 at 428 (2d ed. 1981) ("WRIGHT & MILLER").

[37] Privity is present when a nonparty's interests are so closely aligned to a party's interests that the party adequately represented the nonparty and the nonparty can be considered to have had his or her day in court. United States v. Perchitti, 955 F.2d 674, 676 (11th Cir. 1992); Jaffree v. Wallace, 837 F.2d 1461, 1456 (11th Cir. 1988); Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1411 (D.C. Cir. 1985). Sometimes courts refer to this as "virtual representation." Id. Other courts, however, "have refused to adopt any general rule that a nonparty may be precluded from relitigating issues . . . lost after vigorous advocacy by a party who seems to hold interests identical to the interests of the nonparty." WRIGHT & MILLER, supra, § 4457 at 500.

1. initiated an enforcement action against it under 14 C.F.R. Part 161 about the same time as the aviation trade groups filed suit in district court; and

2. issued a notice of investigation under 14 C.F.R. Part 16 shortly after the aviation trade groups withdrew their appeal from the district court's decision.

Regarding whether the private litigants' interests and those of the FAA are aligned closely enough to support a finding of privity, the answer is no.

The FAA's interests are far broader than those of the two aviation trade groups that were plaintiffs in the district court case. The first of these groups, the National Business Aviation's Association, represents business aviation, a subset of general aviation, and said that it was suing on behalf of "at least one member." The General Aviation Manufacturing Association sued on behalf of suppliers of aircraft services for Stage 2 aircraft at Naples Airport. As important as each group is, they are but two of numerous aviation trade groups, and aviation trade groups in turn are only one type of stakeholder whose interests the FAA must consider. Neither of the plaintiffs in the district court case has the overarching responsibility that the FAA does to serve the national public interest. The two aviation trade groups represented their own interests in the district court litigation, but could not have represented the FAA's. Thus, the FAA did not have its day in court when the two groups sued NAA, and the Hearing Officer did not err in finding there was no privity.

Further, the FAA did not have a duty to intervene in the district court case. The courts have said that requiring the government to monitor all lawsuits and intervene would be too onerous a burden. [n.38] NAA could have brought in the FAA through joinder, but it failed to do so. [n.39]

[38] "Congress never mandated that the government must intervene in each and every piece of litigation or forever be barred by the doctrine of res judicata." Herman, 140 F.3d at 1426 (11th Cir. 1998), quoting Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 691 (7th Cir. 1986) (en banc).

[39] According to the Supreme Court, the burden is on a party to a lawsuit to bring in additional parties by means of joinder where appropriate, rather than on potential additional parties to intervene. Martin v. Wilks, 490 U.S. 755, 765 (1989).

[40] "[T]he cause of action which a nonparty has vicariously asserted differs by definition from that which he subsequently seeks to litigate in his own right." Montana, 440 U.S. 147 at 154 (emphasis added).

The other reason that collateral estoppel does not apply is that the FAA, which did not participate in the previous case, obviously did not have a full and fair opportunity tolitigate the issues. [n.41]

[41] Collateral estoppel or issue preclusion bars re-litigation of an issue if:

(1) the issue at stake is identical to the one in the prior litigation;
(2) the issue was actually litigated in the prior suit;
(3) the determination of the issue in the prior litigation was a necessary part of the judgment in that litigation; and
(4) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the earlier litigation.

CSX Transportation, Inc. v. Brotherhood of Maintenance of Way Employees, 327 F.3d 1309, 1317 (11th Cir. 2003).

[42] In re Bristol Res. 1994 Acquisition Ltd. P'ship, 2003 U.S. App. LEXIS 12288, *2 (5th Cir. June 19, 2003) (quoting Black's Law Dictionary).

[43] Remington Rand Corp. v. Business Systems, 830 F.2d 1260, 1267 (3rd Cir. 1987).

[44] When important interests in the adjudicatory body's own jurisdiction are at stake, "comity yields." United States v. Gillock, 445 U.S. 360, 373 (1980), quoted in Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1246 (11th Cir. 2000).