City of Naples Airport Auth. v. Federal Aviation

• Citation: 409 F.3d 431
• Decision Date: 03 June 2005
• Docket Number: No. 03-1308.,03-1308.
• Parties: CITY OF NAPLES AIRPORT AUTHORITY, Petitioner v. FEDERAL AVIATION ADMINISTRATION, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

409 F.3d 431 CITY OF NAPLES AIRPORT AUTHORITY, Petitioner
v.
FEDERAL AVIATION ADMINISTRATION, Respondent No. 03-1308. United States Court of Appeals, District of Columbia Circuit. Argued March 4, 2005. Decided June 3, 2005.

Page 432

On Petition for Review of a Decision of the Federal Aviation Administration.

W. Eric Pilsk argued the cause for petitioner. With him on the briefs were Perry M. Rosen, Peter J. Kirsch, Lori Potter, Daniel S. Reimer, and F. Joseph McMackin, III.

Thomas R. Devine, Arthur P. Berg, and Patricia A. Hahn were on the brief for amicus curiae Airports Council International —North America in support of petitioner. David T. Ralston, Jr. entered an appearance.

Richard Baron was on the brief for amicus curiae Quiet Technologies, Inc. in support of petitioner.

Robert D. Pritt and David C. Weigel were on the brief for amici curiae City of Naples and Collier County in support of petitioner.

John A. Bryson, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Ellen J. Durkee, Attorney. Andrew C. Mergen, Lisa E. Jones, and Ronald M. Spritzer, Attorneys, entered appearances.

Kathleen A. Yodice, Robert E. Doyle, Jr., Daniel B. Rosenthal, David P. Murray, David A. Berg, Frank J. Costello, Jr., and Scott M. Zimmerman were on the brief of amici curiae Aircraft Owners and Pilots Association, Inc., et al. in support of respondent. Meredith L. Flax and Thomas Richichi entered appearances.

Before: RANDOLPH and ROBERTS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

RANDOLPH, Circuit Judge.

This is a petition for judicial review of an order of the Associate Administrator of the Federal Aviation Administration—the FAA—disqualifying the City of Naples Airport Authority from receiving grants under the Airport and Airway Improvement Act of 1982, 49 U.S.C. § 47107 et seq. (the "Improvement Act"). In order to be eligible for grants, an airport must be "available for public use on reasonable conditions and without unjust discrimination." 49 U.S.C. § 47107(a)(1). The FAA determined that a noise restriction on certain aircraft imposed an unreasonable condition on public use of the Naples Municipal Airport.

The City of Naples is a southern Florida community, bounded on three sides by Collier County and on the west by the Gulf

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of Mexico. It has 23,000 permanent residents and 13,000 seasonal residents. The Naples airport is located within the city's boundaries. Portions of the airport abut the county line. The city leases the land to the Airport Authority, a five-member independent entity created by the Florida legislature for the purpose of operating and maintaining the Airport.

Neither the city nor the county provides funds to subsidize the airport, and no tax or other fiscal revenues are earmarked for the airport. The Airport Authority has no zoning power. The city is responsible for zoning in the areas surrounding the airport within its municipal boundary. The county is responsible for zoning all other property immediately adjacent to the airport.

In 1999, in response to complaints from residents, the Airport Authority commissioned a study to examine noise exposure from aircraft in the area surrounding the airport. The Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521 et seq.—the Noise Act—governs the manner in which individual airports may adopt noise restrictions on aircraft. Aircraft are classified roughly according to the amount of noise they produce, from Stage 1 for the noisiest to Stage 3 for those that are relatively quieter. Section 47524(b) of the Noise Act sets forth certain procedural requirements with which an airport must comply in order to restrict Stage 2 aircraft. Section 47524(c) contains similar procedural requirements for restrictions on Stage 3 aircraft, but also requires FAA approval of any Stage 3 restriction.

The Airport Authority's study found that approximately 1,400 residents were exposed to noise levels in excess of DNL 60 dB^* and that a restriction on all Stage 2 aircraft would affect only one percent of aircraft operations at the airport, while considerably reducing the number of people exposed to significant noise levels. Effective January 1, 2001, the Airport Authority adopted a ban against all Stage 2 aircraft.

Although the Airport Authority complied with the procedural requirements of § 47524(b) of the Noise Act, the FAA ruled that the Stage 2 ban was "unreasonable" and, therefore, contrary to the Airport Authority's obligation under § 47107(a)(1) of the Improvement Act. In the FAA's view, the Airport Authority failed to show that "noncompatible land uses exist in the DNL 60 dB contour."

The Airport Authority maintains § 47524(b) of the Noise Act removed the FAA's power to withhold grants on the basis of an "unreasonable" Stage 2 ban. There is no dispute that before passage of the Noise Act in 1990, the FAA could withhold grants if an airport operator's noise restriction violated the grant assurances in § 47107 of the Improvement Act. See City & County of San Francisco v. FAA, 942 F.2d 1391, 1394-95 (9th Cir. 1991). Under § 47533—the savings clause of the Noise Act—the law in effect before its enactment shall remain unaffected, "[e]xcept as provided by section 47524." 49 U.S.C. § 47533(1).

Although § 47524 of the Noise Act is silent about grant eligibility in the face of a Stage 2 restriction, the Airport Authority claims the provision removed the FAA's pre-existing power to withhold grants when such a restriction proved unreasonable.

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One of the arguments is framed this way: If Congress had wanted to allow FAA review of such restrictions, Congress knew how to say as much. As cast, the "argument is weak." Doris Day Animal League v. Veneman, 315 F.3d 297, 299 (D.C.Cir.2003). It may "be made in any case in which there is a fair dispute about...