The First Circuit Court of Appeals entered a similar holding in DiPierri v. FAA, 671 F.2d 54 (1st Cir. 1982). There a citizen group sued the FAA, contending that the responsibility to control aircraft noise from Boston's Logan airport lay with the FAA. The First Circuit held that the responsibility and power to deal with the noise of departing and arriving aircraft at an airport lies with the proprietor:

Finally, if any coherent federal policy can be discerned, it is that aircraft noise abatement with respect to particular airports is primarily up to the local proprietor, not the FAA. The district court pointed out that requests for noise abatement relief such as moratoriums on airport expansion, airport curfews, or restrictions on the types of planes allowed to use Logan, have to be addressed to Massport, rather than the FAA. Massport, stated the court, "is the entity authorized to impose reasonable restrictions on which aircraft may use Logan Airport." The cases strongly support the district court's view. The Supreme Court has said that the airport proprietor -- not the federal government -- is liable for inverse condemnation due to overflights, see Griggs v. Allegheny County, 369 U.S. 84, 82 5. Ct. 531, 7 L. Ed. 585 (1962), and a number of courts have said that local proprietors are also liable for nuisance claims brought by local residents. [citations omitted] In part because of this assignment of liability, most courts have held that airport proprietors have primary responsibility to reduce airport noise. [citations omitted] The FAA itself has steadfastly maintained that the local proprietor has primary responsibility for the regulation of airport noise.

[FN 21] FAA's efforts in this area have been limited to controlling the noise emissions of aircraft engines through engine noise emission limits (14 CFR Part 36), leaving decisions as to individual airport noise situations to the airport proprietor or to providing grants for voluntary noise studies under 14 CFR Part 150.

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.... [T]he noise limits specified in Part 36... are not intended to substitute federally determined noise levels for those more restrictive limits determined to be necessary by individual airport proprietors....

* * * * *

The Federal Government is in no position to require an airport to accept service by larger aircraft and, for that purpose to obtain larger runways. Likewise, the Federal Government is in no position to require an airport to accept service by noisier aircraft.

* * * * *

The judicial decisions and the legislative history of Public Law90-411 have made it clear that the Federal Government should not substitute its judgment for that of the airport operator in determining the service desired by the airport operator or the steps that the airport operator is willing to take to obtain the service, and that the Federal Government should recognize the airport operator's right to issue regulations or establish requirements as to the permissible level of noise which can be created by aircraft using the airport.

Congress has the power under the Constitution to regulate the operations of airports for noise abatement purposes, but it has chosen not to do so. This congressional policy leaves airport proprietors responsible for the regulation of their airports for noise abatement purposes.

The courts have been equally consistent in upholding the proprietor's power to control aircraft noise. The power of airport proprietors to restrict the use of their airports and to restrict the frequency, time, volume and even the travel distance of aircraft operations using the airport has been repeatedly upheld by the courts. See Santa Monica Airport Ass'n v. City of Santa Monica, supra, (night curfews and other regulations); Global International Airways Corp. v. Port Authority, 727 F.2d 246 (2d Cir.), (Global I) (upholding NY-NJ Port Authority restriction on volume of incoming operations by noisy aircraft); opinion on rehearing, 731 F.2d 127 (2d Cir. 1984) (Global II); British Airways v. Port Authority, 558 F.2d 75, 84 (2d Cir. 1977) (Concorde I); British Airways v. Port Authority, 564 F.2d 1002 (2d Cir. 1977) (Concorde II); Arrow Air v. Port Authority of New York and New Jersey, 602 F. Supp. 314, 318 (S.D.N.Y. 1985) ("Contrary to Arrow's assertion, nothing in City of Burbank v.. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), casts any doubt on the authority of an airport proprietor to regulate aircraft noise."); National Aviation v. City of Hayward, 418 F. Supp. 417 (N.D.Cal. 1976); Air Transportation Association v. Crotti, 389 F. Supp. 58, 63-64 (N.D.Cal. 1975) (The three judge court stated: "It is now firmly established that the airport proprietor is responsible for the consequences which attend the operation of a public airport; his right to control the use of the airport is a necessary concomitant...."); cf. San Diego Unified Port District v. Gianturco, 651 F.2d 1306, 1316-1318 (9th Cir.), cert. denied, 455 U.S. 1000 (1981); [FN 22] Western Airlines, Inc. v. Port Authority of New York and New Jersey, 658 F. Supp. 952 (S.D.N.Y. 1986), aff'd, 817 F.2d 222 (2d Cir. 1987) (affirmed 1500-mile perimeter rule by proprietor), cert. denied, 485 U.S. 1006 (1988); and Midway Airlines v. County of Westchester, 584 F. Supp. 436 (S.D.N.Y. 1984). [FN 23]

[FN 22] While striking down an attempt by the state of California to impose a curfew on San Diego's Lindbergh airport because the state was not the proprietor, the Ninth Circuit in Gianturco reaffirmed the right of Port District as proprietor of the airport to impose nighttime curfew on San Diego's airport. The court in that case expressly declined to address the Tenth Amendment implications of its decision because the issue had not been timely raised (See discussion, infra).

[FN 23] Congress has explicitly reaffirmed the proprietor's regulatory authority in 49 U.S.C. 1305(b)(1). In explaining the purpose of this section, Senator Kennedy stated that Congress did not want to interfere with the "long recognized powers of the airport operators to deal with noise and other environmental problems at the local level". Remarks of Senator Kennedy on 49 U.S.C. 1305(b)(1), at 124 Cong. Rec. 37419.

B. Congress Has Not Preempted State Law Damage Remedies For Aircraft Noise.

1. Congress' Express Intent In Section 1106.

Assuming arguendo that Congress has the power to preempt state law remedies against an airport proprietor, an assumption that is highly doubtful -- see discussion of the Tenth amendment, infra -- the preemption issue before this Court in this controversy is whether the Federal Aviation Act, 49 U.S.C. Section 1101, et seq., preempts state law damage remedies for damage to real estate and personal property and personal injury caused by aircraft operations. The governing principle was stated as follows by the Supreme Court in Rice u. Santa Fe Elevator Corp., 331 U.S. 218 (1947):

[The power of the state is] not to be superseded by the Federal Act unless that was the clear and manifest purpose of the Congress.

Here, Congress has clearly spoken and has affirmatively and unequivocally stated that state statutory and common law remedies are not preempted:

Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.

This is an explicit statement by Congress that state statutory and common law remedies should be preserved and not preempted. In the face of such an explicit command from Congress, it would be a usurpation of Congressional power for the Judiciary to find preemption of state law damage remedies in this case. [FN 24]

[FN 24] Nor is the Congress' declared intent to preserve state law remedies impacted by the "Airport Noise and Capacity Act of 1990," Pub. L. 101-508, 49 U.S.C. 2151-2158. That statute does two things:

1. The statute continues to acknowledge the power and right of the airport proprietor to impose noise restrictions on Stage 2 aircraft, but requires the airport operator to prepare and publish a notice and analysis of the restriction. 49 U.S.C. 2153(c). The federal government has no veto or approval authority over such restrictions.

2. The statute continues to acknowledge the power of the proprietor to impose noise restrictions on Stage 3 aircraft, but only after approval of the Secretary of Transportation. 49 U.S.C. 2153(b) and (d).

Further, the Congress was very careful in the statute to avoid any broad-based attempts to shift liability from the proprietor under Griggs to the federal government. In Section 9306 of the Act, 49 U.S.C. 2155, the federal government only assumes the liability for a taking:

1. Only after a proposed Stage 3 noise restriction has been submitted to the Secretary and been disapproved.

2. Only to the extent that the taking was "a direct result of such disapproval."

Chicago has admitted that this statute does not apply to this case, in part because Chicago has never sought approval for any Stage 3 noise restriction. Consequently this statute does not shift liability in any way from Chicago to the federal government. See Franke deposition at pages 173-176 (Supplemental Appendix, at 2).

2. The Burbank Decision Never Addressed Either Section 1106 Or State Law Damage Remedies

The Supreme Court's 1973 decision in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) -- cited by Chicago -- never addressed the question of Congressional intent to preempt state law damage remedies for injuries caused by aircraft operations. Nor did the Court discuss Congress' explicit anti-preemption provision (Section 1106) at to state law damage remedies. Burbank is therefore irrelevant to the preemption issue before this Court.

3. Every Court That Has Examined Section 1106 and Burbank Has Found No Preemption of State Law Damage Remedies

Prior to December 1988, every jurisdiction in the country that addressed this issue -- save one -- had explicitly held that state law damage remedies against airport operators had not been preempted and every such jurisdiction allowed state law remedies to be invoked against the airport operator. The Supreme Courts of California (Los Angeles International Airport), Georgia (Atlanta's Hartsfield International Airport), and Wisconsin -- as well as the Louisiana Court of Appeals (New Orleans International Airport) -- have conducted detailed analyses of the state damage remedies preemption issue, have examined 49 U.S.C. 1506 and Burbank, and have concluded that Congress did not intend to preempt state law damage remedies. See Greater Westchester Homeowners Association u. City of Los Angeles, 26 Cal.3d 86, 160 Cal. Rptr. 733, 603 P.2d 1329 (1979), cert. denied, 449 U.S. 820 (1980); Baker V. Burbank-Glendale-Pasadena Airport Authority, 39 Cal.3d 862, 218 Cal. Rptr. 293, 705 P.2d 886 (1985), cert. denied, 475 U.S. 1017 (1986); City of Atlanta v. Owen, 248 Ga. 299, 282 S.E.2d 906 (1981), cert. denied, 456 U.S. 972 (1982); Krueger v. Mitchell, 112 Wis.2d 88, 332 N.W.2d 733 (1983); Ursin v. New Orleans Aviation Board, 506 So.2d 947 (La.App., 5th Cfr.), reversed on other grounds, 515 So.2d 1087 (1987).

The lone differing opinion was the 1975 Seventh Circuit decision in Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975) -- a decision which never conducted an examination of this explicit anti-preemption language of Section 1106 and a decision which the United States Government (speaking through the Solicitor General) acknowledged was clearly incorrect. (See pages 35-36, supra.)

Thirteen years later, the Seventh Circuit candidly admitted its error and explicitly overruled Luedtke. In Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988), cert. denied, 109 S.Ct. 2099 (1989) the City of Chicago raised virtually the identical arguments now raised before this Court, and relied on the decisions in Luedtke and Bryski. In rejecting Chicago's arguments and finding no preemption of state law damage remedies, the Seventh Circuit openly admitted that it was in error in Luedtke and that there was no preemption of state law damage remedies:

The Federal Aviation Act does not expressly preempt state damage remedies. To the contrary, Section 1106 of the Federal Aviation Act, 49 U.S.C. App. Section 1506, provides that "[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." Luedtke did not mention this anti-preemption statute. Statutes of this sort save common law remedies even when federal law exclusively determines the content of the substantive rules.

[FN 25] Like Luedtke, Bryski made no mention or analysis of Section 1106.

Section 1106 is no exception. Nader v. Allegheny Airlines, Inc., 426 U.S.290 (1976) holds that Section 1106 preserves against preemption a claim for fraudulent misrepresentation in selling tickets for air travel. State courts award compensation for takings in inverse condemnation cases, although if there is complete federal preemption the national rather than the local government should be the payor. State courts award damages every day in air crash cases, notwithstanding that federal law preempts the regulation of safety for air travel. If damages are available for takings, and common law remedies are available on questions of fraud and safety, why not on questions of noise and chemical emissions?

Luedtke did not mention any of these considerations, and its holding cannot be maintained in the face of them. We overrule Luedtke to the extent it holds that all common law remedies for airport noise and pollution have been preempted by federal law.

As a result of Bieneman, property owners suffering from noise injury caused by overflights from aircraft approaching or departing O'Hare in Chicago finally have the same state law remedies that have long been available to property owners damaged by airport noise in Los Angeles, Atlanta, and New Orleans. As of May 1989 -- the date when Chicago's petition for certiorari in Bieneman was denied -- the 14-year bar to effective state law relief for noise-battered DuPage County residents was finally lifted.

4. Separating Preemption Issues From Limits On Congressional Power Under the Tenth Amendment.

In any discussion of preemption, it is necessary to put the power of preemption in context in our constitutional structure of federalism -- the division of power between the federal government and the states. The preemption doctrine stems from the Supremacy Clause of the Constitution, and implicit in the preemption doctrine is the essential assumption that Congress has the constitutional power to pass a law commanding certain action. Where Congress has no constitutional power to regulate in a certain area or to command certain activity, Congress is a fortiori without power to preempt.

This distinction stems from the deliberate federalism structure of competing limited powers (for the federal government) and reserved powers (for the states) reflected in our Constitution -- particularly the Tenth Amendment. As stated by the Supreme Court in New York v. United States, ___ U.S. ___, 112 S.Ct. 2408 (1992) (declaring a congressional command to the states unconstitutional under the principles of federalism embodied in the Tenth Amendment):

If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.

The Tenth Amendment is no chimera. It bars the federal government, including the Congress, from intruding on certain prerogatives left to the states by the Constitution. See New York v.. United States, supra; Board of Natural Resources of State of Washington v. Brown, 992 F.2d 937 (9th Cir. 1993); Schmidt, The Tenth Amendment: A "New" Limitation on the Congressional Commerce Power, 45 Rutgers L. Rev. 417 (1993).

Applied to the issues of entrepreneurial airport development -- the very things for which Allegheny County in Griggs and Los Angeles in Greater Westchester were held liable -- it is clear that Congress cannot order a state (or a political subdivision of that state) to build a new airport, or to expand an existing airport, or to build new runways, or to enter into leases with airlines, or to get into the airport business, or to prevent the state or its political subdivision from getting out of the entrepreneurial airport business.

Nor can Congress dictate to the states how the state allocates or limits the power to build, locate, expand, or contract operations amongst its political subdivisions, agencies, or judiciary. Speaking in a related context the Seventh Circuit said:

Illinois might choose to exercise such powers as it has through the City of Chicago, the "owner" of O'Hare. It might withdraw home rule from Chicago and exercise these powers through legislation of general application. Or it might exercise these powers through the courts. Neither the Constitution nor the Federal Aviation Act, as amended by the Noise Control Act of 1972, determines how Illinois apportions its governmental powers. [citations omitted] Whether Illinois should allow its courts some role in setting noise levels at O'Hare is the State's business.

[FN 26] "The federal government cannot compel a city to have an airport if it doesn't want one. If a City decides it wants to shut down its airport all night the city has a right to do that." Statement by James Hill, Deputy General Counsel of the FAA, Hearings before subcommittees of the House Committee on Interstate and Foreign Commerce (December 6, 1962), quoted with approval by the United States as amicus curiae in Santa Monica Airport Assoc. v. City of Santa Monica. As stated by Chicago's former aviation commissioner Mr. Jay Franke (who is also a lawyer) at his deposition in this case:

Q. As you understand the role of the airport operator viz-a-viz other governmental entities, the decision to build additional physical facilities at an airport lies with the operator, does it not?

A. In principle, yes.

Q. And to your knowledge, there is no federal or state compulsion to build additional runways from the standpoint of any compulsory order, is there?

A. No.

Q. So it is a voluntary act by the airport operator, is it not?

A. As I said, my understanding of the law, yes, and administrative practice, the City is not required to build an airport.

Q. So my statement is correct?

A. Yes.

Franke deposition, page 92 (Supplemental Appendix 2)

We think, however, that respondent [the local municipal proprietor], which was the promoter, owner, and lessor [footnote omitted) of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non and where it is to be located.

The nature of the entrepreneurial decisions by the proprietor as the basis for liability was restated again by the California Supreme Court in Greater Westchester Homeowners Association v. City of Los Angeles, supra:

City concedes that it, not the federal government, decided to build and then to expand the airport in the immediate vicinity of a residential area. It is undeniable that the City chose the particular location and direction of the airport runways. It approved their usage by jet aircraft. It entered into service agreements with commercial air carriers all with full and prior knowledge of the potential noise impact. . . .

Admittedly, some of the forgoing actions by City followed federal advice, approval, and perhaps even encouragement. Nonetheless, City chose, and was not forced by anyone, to develop LAX in its particular location. City voluntarily elected to expand the facility, with foreknowledge of the preexisting nature and usage of the surrounding area.

Under the Griggs doctrine, liability is imposed on the airport proprietor for before-the-fact entrepreneurial decisions to locate, build and expand airports -- an area in which the federal government (while it has power to prevent or prohibit such construction) has no constitutional power to command or compel the States or their political subdivisions to engage in such construction.

Thus state laws which limit, withdraw, or modify the state legislative authority of the state's political subdivisions to construct or expand airports are outside the constitutional power of Congress to command. Congress could not command Illinois -- or through Illinois, its political subdivisions --to build or expand airports. Nor logically can Congress regulate the allocation of powers within the state by the state legislature and the state constitution as to how the decision to build or expand airports by municipal governments shall be regulated -- either through requirements for prior state executive approval, judicially imposed compensation remedies for past noise injuries, or injunctions by state courts to prevent construction. These are matters for the states, qua states, and are immune under the Tenth Amendment from interference by the Congress.

If the Court were to find clear evidence of a Congressional intent to preempt any of the State's prerogatives in this area, the Court would have to question Congress' lack of power to preempt under the structure of federalism reflected in the Tenth Amendment. But having stated the Tenth Amendment limitations on Congress' power to impose mandates on the States in this area, it is important to reiterate a governing principle of constitutional adjudication. If an alternative construction can be found which avoids the necessity of reaching the constitutional issue, then the reviewing court should adopt that alternative construction. United States v. International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) 352 U.S. 567, 590, 77 S.Ct. 529, 540-41 (1957) (the court should avoid passing on the validity of an Act of Congress unless absolutely necessary to the case).