National Aviation et al. v. City of Hayward
Cite as: 418 F.Supp. 417


NATIONAL AVIATION, a general partnership dba NATIONAL Air Freight, et al., Plaintiffs,

No. C-75-2279 RFP

July 13, 1976


William A. Jennings, Glynn P. Falcon, Jr., LaCroix & Schumb, San Jose, Cal., for plaintiffs National Aviation, et al.

Peter W. Davis, Michael R. Silvey, Crosby, Heafey, Roach & May, Oakland, Cal., John W. Scanlon, City Atty., Hayward, Cal., for defendant City of Hayward.

Alvin J. Rockwell, Gordon E. Davis, Brobeck, Phleger & Harrison, San Francisco, Cal., for amicus curiae Air Transport Ass'n of America.

John S. Yodice, Washington, D.C., for amicus curiae Aircraft Owners & Pilots Ass'n.


PECKHAM, Chief Judge.

This is an action by four related commercial airplane operators who seek to have Hayward City Ordinance 75-023 C.S. declared unconstitutional. That ordinance, enacted on October 14, 1975, pursuant to defendant Hayward's capacity as proprietor of the Hayward Air Terminal, prohibits all aircrafts which exceed a noise level of 75 dBA from landing or taking off from the Hayward Air Terminal between the hours of 11:00 p. m. and 7:00 a. m. [FN1]

[FN1] The ordinance provides an exception for emergency flights approved by the Air Terminal Manager or in his absence by his designee. Hayward Municipal Code s 2-6.119(1)(c).
On November 3, 1975, this court denied plaintiffs' application for a temporary restraining order. Thereafter, on January 12, 1976, the court heard argument on plaintiffs' motion for a preliminary injunction and defendant's motion to dismiss. At that time, we granted leave to the Air Transport Association of America to file a brief as an amicus curiae and took the foregoing motions under submission pending the filing of the amicus and necessary reply briefs by the parties. [FN2] Accordingly, these briefs having been submitted, we now turn to the disposition of the motions before us.
[FN2] The Amicus Brief of the Air Transport Association of America was filed February 11, 1976. On March 1, 1976, the Aircraft Owners and Pilots Association petitioned the court for leave to file an amicus brief and on March 2, 1976, filed such a brief with the court. Leave to file such a brief is now hereby granted. Defendants filed a "Reply Memorandum" to Air Transport's Amicus Brief on March 8, 1976, which prompted plaintiffs to file a letter of reply of its own on April 5, 1976. Finally, on April 27, 1976, defendants responded to plaintiffs' letter of April 5, 1976.


This circuit employs two tests for determining whether a party is entitled to a preliminary injunction: "One moving for a preliminary injunction assumes the burden of demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Wm. Inglis & Sons Baking v. I.T.T. Cont. Baking Co., 526 F.2d 86, 88 (9th Cir. 1975) quoting from Charlie's Girls Inc. v. Revlon Inc., 483 F.2d 953, 954 (2d Cir. 1973) (emphasis added by Ninth Circuit). Since it is clear that the balance of the parties' relative hardships does not tip sharply in plaintiffs' favor, if at all in their direction, [FN3] plaintiffs must satisfy the standards of the first test if a preliminary injunction is to issue.

[FN3] Plaintiffs essentially argue that the enactment of Hayward City Ordinance 75-023 C.S. has increased their operating costs and reduced their corporate net worth. See s I(A) infra. Defendant City of Hayward takes the position that enjoining the enforcement of this ordinance will entail great social costs in the form of noise pollution affecting hundreds of residents living in the vicinity of Hayward Air Terminal, as well as possible financial liability for the city by way of a suit in inverse condemnation. See Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).

A. Irreparable Injury

Plaintiffs National Aviation (dba National Air Freight) and Paramount Air Services Inc. are under contract with Peninsula Air Delivery Inc. to transport and deliver cargo consisting of mail and the latest edition newspapers for morning delivery to various interstate and intrastate destinations. The nature of this contract requires these plaintiffs to operate their aircrafts during the hours of 11:00 p. m. and 7:00 a. m.; and in the past, these plaintiffs have operated such flights from Hayward Airport. However, as a result of Hayward City Ordinance 75-023 C.S., these plaintiffs have been required to shift their operations to other airports, primarily Oakland Airport, thereby allegedly incurring large increases in their costs of operation.

Plaintiff Career Aviation is an FAA approved flight training school and conducts flight training at the Hayward Air Terminal. It is occasionally required to conduct flight training operations between the hours of 11:00 p. m. and 7:00 a. m. Due to the passage of ordinance 75-023 C.S., this plaintiff alleges that it is no longer able to conduct its flight training sessions during those hours. Thus, Career's flight training instruction and aircraft rental and sales are alleged to have been adversely affected in varying degrees, not yet calculable.

Moreover, in addition to these alleged increases in operating expenses, plaintiffs allege to have suffered other damage not readily translatable to dollar amounts. These include reductions to the net worth of these companies (thereby placing them in less favorable positions with their banks and other capital lending institutions), loss of value of their leased property and facilities at the Hayward Air Terminal, decreased and less flexible service capabilities to customers, loss of goodwill, and the potential of criminal prosecution of their pilots and employees should those persons unsuccessfully attempt to comply with the ordinance's noise standards.

Although plaintiffs could probably be compensated for a great deal of this injury by an award of money damages, much of the injury which plaintiffs claim to suffer would be very difficult to calculate precisely so that it is doubtful whether plaintiffs have a fully adequate remedy at law. Even more persuasive on this point is defendant's argument that it is completely immune from damage liability in this case. See section II infra. Accordingly, we are of the opinion that these plaintiffs have made an adequate showing of the "possibility" that they will be "irreparably injured." [FN4] See Charlie's Girls Inc. v. Revlon Inc., supra. Accordingly, we now turn to an examination of plaintiffs' likelihood of success on the merits.

[FN4] Plaintiff Midwest Air Charter claims to be adversely affected by the passage of ordinance 75-023 C.S. because of its intentions, prior to the passage of the ordinance, to utilize the Hayward Air Terminal as an arrival and departure point for some of its interstate flights. These allegations are not sufficient to constitute the requisite degree of irreparable injury required for a preliminary injunction to issue in this party's favor.

B. The Merits

Plaintiffs and amicus primarily argue that the Hayward ordinance is unconstitutional because (1) it invades a field preempted by federal law and (2) because it imposes an unconstitutional burden on interstate commerce. In addition, plaintiffs argue that a preliminary injunction should issue because the ordinance is contrary to prior federal agreements. We will consider these arguments seriatim.

1. Preemption. Plaintiffs and amicus contend that the Noise Control Act of 1972, 42 U.S.C. s 4901 et seq., as it amends the Federal Aviation Act of 1958, 49 U.S.C. s 1301 et seq., and the regulations promulgated thereunder [FN5] preempt the area of noise regulation and render the Hayward ordinance unconstitutional. The leading case on this question is Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). Burbank involved a city ordinance which imposed a "curfew" that, in the absence of an emergency, prevented any pure jet aircraft from taking off from privately owned Hollywood-Burbank Airport between the hours of 11:00 p. m. and 7:00 a. m. Mr. Justice Douglas, writing for a 5-4 majority, conducted a detailed analysis of the aforementioned statutes, their legislative history, and the play of the rationale of Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), and concluded that the "pervasive nature of the scheme of federal regulation of aircraft noise" constituted preemption. 411 U.S. at 633, 93 S.Ct. at 1859.

[FN5]. Basically the Noise Control Act of 1972, "by amending s 611 of the Federal Aviation Act, also involves the Environmental Protection Agency (EPA) [and FAA] in the comprehensive scheme of federal control of the aircraft noise problem." "EPA shall submit to FAA proposed regulations to provide such 'control and abatement of aircraft noise and sonic boom' as EPA determines is 'necessary to protect the public health and welfare.' FAA is directed within 30 days to publish the proposed regulations in a notice of proposed rulemaking. Within 60 days after that publication, FAA is directed to commence a public hearing on the proposed rules . . . [and] within 'a reasonable time after the conclusion of such hearing and after consultation with EPA,' FAA is directed either to prescribe the regulations substantially as submitted by EPA, or prescribe them in modified form, . . ." Burbank v. Lockheed Air Terminal, 411 U.S. 624, 628-630, 93 S.Ct. 1854, 1857-1858, 36 L.Ed.2d 547 (1973).

The regulations that have been promulgated under this authority now appear at 14 C.F.R. Part 36. See also note 12 infra. In addition, the FAA has adopted rules and regulations which control the flight of aircraft (14 C.F.R. Parts 91, 93, 95 and 97) and which govern the use of navigable airspace (14 C.F.R. Parts 71, 73, 75 and 77).

A critical piece of legislative history upon which the Burbank opinion turned consists of a letter by the Secretary of Transportation to the Aviation Subcommittee of the Senate Committee on Commerce addressing the question of whether the Noise Control Act of 1972 would "to any degree preempt State and local government regulation of aircraft noise and sonic boom." The part of the letter upon which the majority relied read as follows:
The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of the aircraft. . . . H.R. 3400 would merely expand the Federal Government's role in a field already preempted. It would not change this preemption. State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft. (411 U.S. at 635, 93 S.Ct. at 1860.)
The letter, however, also expressed the view that
the proposed legislation [would] not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory. (411 U.S. at 635-36 n. 14, and at 649, 93 S.Ct. at 1861.)

Just as an airport owner is responsible for deciding how long the runways will be, so is the owner responsible for obtaining noise easements necessary to permit the landing and takeoff of the aircraft. The Federal Government is in no position to require an airport to accept service by larger aircraft and, for that purpose, to obtain longer runways. Likewise, the Federal Government is in no position to require an airport to accept service by noisier aircraft, and for that purpose to obtain additional noise easements. The issue is the service desired by the airport owner and the steps it is willing to take to obtain the service. In dealing with this issue, the Federal Government should not substitute its judgment for that of the States or elements of local government who, for the most part, own and operate our Nation's airports. The proposed legislation is not designed to do this and will not prevent airport proprietors from excluding any aircraft on the basis of noise considerations. (411 U.S. at 649, 93 S.Ct. at 1867 (emphasis added).) [FN6]

[FN6] In their report concerning this legislation, the Senate Commerce Committee expressly indicated their concurrence with these views. Sen.Rep.No.1353, 90th Cong.2d Sess., 6-7; U.S.Code Cong. & Admin.News 1968, p. 2688.

Accordingly, the Burbank court's finding of preemption was made only with regard to a nonproprietor municipality's attempt to regulate aircraft noise pursuant to its police power. Indeed, in footnote 14 of the majority opinion, Mr. Justice Douglas expressly acknowledges that the court "do(es) not consider here what limits, if any, apply to a municipality as a proprietor." 411 U.S. at 635-36 n. 14, 93 S.Ct. at 1161. As a result, this court must now attempt to do so. We begin with an examination of the ordinance in question.

Section 2 of the Hayward City Ordinance 75-023 recites that the City of Hayward as the owner, operator, and proprietor of an airport located within its corporate limits, possesses the authority to adopt reasonable rules regulating the use of such airport. Nevertheless, the ordinance appears to greatly resemble a measure that a municipality would pass pursuant to its police power. It was enacted as an amendment to the Municipal Code, by the Hayward City Council, and subjects violators to criminal penalties of six months in jail and/or a $500.00 fine. The ordinance further states that it was passed in order to preserve "the public peace, health, and safety in order to provide relief from noise pollution to occupants of residential property surrounding the Hayward Air Terminal."

Thus, it seems clear that if this ordinance was passed by a state or other local government not the proprietor of the airport, it would run afoul of Burbank and would constitute an impermissible exercise of police power in an area preempted by Congress. The question presented here is whether the City of Hayward's status as proprietor of the Hayward Air Terminal leaves the city free to exercise its police powers without constraint by federal preemption. While at first blush the answer to this question would appear to be "no," at least one court seems to indicate otherwise.

Air Transport Association v. Crotti, 389 F.Supp. 58 (N.D.Cal.1975) involved the constitutionality of Title 4, California Administrative Code, Subchapter 6, ss 5000-5080.5, which, pursuant to the authority of the Public Utilities Code, ss 21699-21699.5, set particular noise standards to govern the operation of aircraft at all airports operating under a permit from the California Department of Aeronautics. Specifically, the standards fell into two categories:

(a) CNEL (Community Noise Equivalent Level) standards, prescribed for continued operation of airports with monitoring requirements, which focus upon the arrival of a prescribed ultimate maximum noise level and limiting the land uses subjected thereto around airport facilities; and (b) SNEL [sic] (Single Event Noise Exposure Levels) prohibitions applied to the inseparable feature of noise generated by an aircraft directly engaged in flight.
389 F.Supp. at 62.

The Crotti three-judge court upheld the CNEL standards, but declared the SENEL provisions to be an unlawful exercise of police power. Significantly, in rejecting plaintiff Air Transport Association of America's argument that the federal government had preempted the entire field of airport noise regulation, the court wrote:

It is now firmly established that the airport proprietor is responsible for the consequences which attend his operation of a public airport; his right to control the use of the airport is a necessary concomitant, whether it be directed by state police power or his own initiative. . . . That correlating right of proprietorship control is recognized and exempted from judicially declared federal pre-emption by footnote 14. (389 F.Supp. at 63-64 (emphasis added) (footnote omitted).)
Indeed the only regulation promulgated to date by the FAA pursuant to its authority to "prescribe and amend such regulations as (it) may find necessary to provide for the control and abatement of aircraft noise and sonic boom" (49 U.S.C. s 1431(b)(1)) is Part 36 of the Federal Aviation Regulations, 14 C.F.R. s 36.1 et seq. But even the FAA in its original preface to Part 36 disclaimed that it was intending to preempt noise control regulation and emphasized that local airport owners have the responsibility for determining the permissible noise levels for aircraft using their airport:
Compliance with Part 36 is not to be construed as a Federal determination that the aircraft is "acceptable" from a noise standpoint in particular airport environments. Responsibility for determining the permissible noise levels for aircraft using an airport remains with the proprietor of that airport. The noise limits specified in Part 36 are the technologically practicable and economically reasonable limits of aircraft noise reduction technology at the time of type certification and are not intended to substitute federally determined noise levels for those more restrictive limits determined to be necessary by individual airport proprietors in response to the locally determined desire for quiet and the locally determined need for the benefits of air commerce. (34 Fed.Reg. 18355.) [FN7]

[FN7] In the present regulations promulgated by the FAA, s 36.5 reads as follows:

s 36.5 Limitation of part
Pursuant to 49 U.S.C. 1431(b)(4), the noise levels in this part have been determined to be as low as is economically reasonable, technologically practicable, and appropriate to the type of aircraft to which they apply. No determination is made, under this part, that these noise levels are or should be acceptable or unacceptable for operation at, into, or out of any airport. (Emphasis added.)

In addition, the FAA specifically requires that in the airplane flight manual for each aircraft certified under Part 36, whether jet or small propeller, that the statement underscored above be furnished near the listed noise levels.
Thus, the import of Burbank and the legislative history discussed therein, as well as the nature of the subsequent noise regulations implemented by the FAA, is, as the Crotti court stated, that the right of airport proprietorship control is recognized and exempted from preemption. Such an interpretation does, however, overlook the explicit statement of the Burbank majority that the court was not considering "what limits, if any, apply to a municipality as a proprietor." 411 U.S. at 635-36 n. 14, 93 S.Ct. at 1861. Moreover, the Crotti court's interpretation of Burbank would produce a result, which plaintiffs strenuously contend would be anomalous; namely, that a municipality that owns an airport would be free to exercise police powers in the field of airport noise regulation which powers, if identically exercised by a different municipality or state, would unlawfully intrude into an area said to have been preempted by Congress. [FN8]
FN8. Indeed amicus Air Transport Association of America contends that the Hayward ordinance is invalid under the Crotti decision's holding that the SENEL standards, at issue there, were preempted. Those standards measured the noise exposure level of a single event, such as an aircraft flyby. Under the statutory scheme that Crotti invalidated, the proprietor of an airport was to recommend single event noise exposure level limits appropriate to his airport, which, upon approval, were to be enforced by the county in which the airport was located. 4 Cal.Admin.Code s 5035. Operation of an aircraft in excess of those limits was punishable as a misdemeanor. 4 Cal.Admin.Code s 5055.

Amicus argues that by enacting its own ordinance, Hayward set its own single event limit and instead of recommending it to the state for approval, provided for its own enforcement. In all other respects, amicus contends that the effect of the Hayward ordinance is identical with the SENEL limits enjoined in Crotti. Both schemes, for example, subject aircraft operators to criminal penalties for operating in excess of the noise limits in effect.

Amicus notes that Hayward could have proceeded to recommend establishment of a noise limit for approval by the county. In so doing, Hayward would have run afoul of the injunction issued against SENEL enforcement by Crotti. Although that injunction only runs to the SENEL procedure, amicus rhetorically questions whether the result should be any different when the city does not seek state approval of the noise limit and attempts to enforce the limit itself? If the city cannot propose a noise limit for criminal enforcement by the county, can it logically adopt a limit to be enforced by its own police power?

Defendant responds affirmatively. It distinguishes Crotti on the grounds that the SENEL procedure was neither imposed by a proprietor (but the state) nor was enforced by an owner (but the county). Defendant contends that the logic of amicus' argument makes sense only if one denies the existence of the airport owner exception, which so clearly appears in the legislative history and the case law.

Therefore, we cannot merely rely on the Crotti court's interpretation of this problem. Rather, we must examine further to see whether Congress or the Supreme Court ever intended such a result.

As indicated previously, Justice Douglas based his finding of preemption on "the pervasive nature of the scheme of federal regulation of aircraft noise. 411 U.S. at 633,93 S.Ct. at 1859. More specifically, he wrote:

The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. s 1348(a), and the protection of persons on the ground. 49 U.S.C. s 1348(c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the "highest degree of safety." 49 U.S.C. s 1431(d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.

If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of take-offs and landings would severely limit the flexibility of FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. (411 U.S. at 638-39, 93 S.Ct. at 1862 (footnotes omitted).)

Thus, to allow municipal airport proprietors to restrict the use of their facilities by imposing jet curfews or other noise regulations would certainly undermine the rationale underlying Justice Douglas' finding of preemption. This is particularly so in light of the fact that most of the airports in this country are owned by the municipalities in which they are located.

However, the majority was well aware of this fact, as well as of the clear Congressional intention that airport proprietors continue to be permitted to deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion was nondiscriminatory. See 411 U.S. at 635 n. 14, 93 S.Ct. 1854. [FN9] The rationale underlying this special treatment for airport proprietors can be traced to another Justice Douglas opinion Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962).

FN9. See also, 411 U.S. at 651-652, 93 S.Ct. 1854 (Rehnquist, J., dissenting).
Griggs held that an airport operator is financially responsible to nearby property owners for property damage resulting from aircraft noise from overflying commercial flights. The court held that such noise constituted a "taking" of an "air easement" over the property of the plaintiff. The court viewed the county's obligation to obtain air easements as just another part of its responsibility to acquire sufficient land for the airport pursuant to its power of eminent domain. Significantly, the court rejected the contention that it was the United States government that should be liable for the "taking," having required the airport to have been constructed according to federal requirements and having guaranteed through the Federal Aviation Act a "public right of freedom of transit in air commerce through the navigable air space." See 369 U.S. at 93-94, 82 S.Ct. at 535 (Black, J., dissenting).

Thus, this court finds itself caught on the horns of a particularly sharp dilemma: If on one hand, we follow the dicta in footnote 14 of the Burbank opinion, which is intended to comport with the court's holding in Griggs, we will severely undercut the rationale of Burbank's finding of preemption. If on the other hand, we disregard the proprietor exception as dicta in order to fully effectuate the Burbank rationale, we impose upon airport proprietors the responsibility under Griggs for obtaining the requisite noise easements, yet deny them the authority to control the level of noise produced at their airports. This is, of course, exactly what the Senate Commerce Committee indicated that the 1972 amendment to section 611 of the Federal Aviation Act was not intended to do. See Senate Report No. 1353, 90th Cong., 2d Sess. pp. 6-7.

Continued in Part Two