Lockheed Air Terminal, Inc. v. City of Burbank

• Decision Date: 22 March 1972
• Docket Number: No. 71-1242.,71-1242.
• Citation: 457 F.2d 667
• Parties: LOCKHEED AIR TERMINAL, INC., a corporation, and Pacific Southwest Air Lines, a corporation, Plaintiffs-Appellees, Air Transport Association of America, Plaintiff-Appellee, v. The CITY OF BURBANK, a municipal corporation, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 667 (1972)

LOCKHEED AIR TERMINAL, INC., a corporation, and Pacific Southwest Air Lines, a corporation, Plaintiffs-Appellees Air Transport Association of America, Plaintiff-Appellee, v. The CITY OF BURBANK, a municipal corporation, et al., Defendants-Appellants.

No. 71-1242.

United States Court of Appeals, Ninth Circuit.

March 22, 1972.

Richard L. Sieg, Jr., Asst. City Atty. (argued), Samuel Gorlick, City Atty., Burbank, Cal., for defendants-appellants.

Nicholas C. Yost, Deputy Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for amicus curiae.

Warren Christopher (argued), O'Melveny & Myers, Robert C. Packard, of Kirtland & Packard, Los Angeles, Cal., for plaintiffs-appellees.

James R. Dooley, Asst. U. S. Atty., Los Angeles, Cal., for amicus curiae.

Before BROWNING, DUNIWAY and TRASK, Circuit Judges.

TRASK, Circuit Judge:

Hollywood-Burbank Airport (H-B Airport) is owned and operated by Lockheed Air Terminal, Inc. (Lockheed). It occupies approximately 535 acres, of which 128 acres (including portions of each of its two runways) are owned by the Federal Government. As a satellite airport for Los Angeles International Airport, it is included in the National Airport Plan promulgated by the Administrator of the Federal Aviation Administration (FAA) pursuant to the Federal Airport Act of 1946, 49 U.S.C. § 1101 et seq.¹ As such, it is used by United Air Lines, Western Airline, Air West and Pacific Southwest Airlines (PSA) as an alternative to Los Angeles International Airport when weather conditions at the latter prevent its use. Those airlines, together with Continental Air Lines, also use H-B Airport for regularly scheduled flights.

United, Western, Air West and Continental are interstate carriers and hold Certificates of Public Convenience and Necessity issued by the Civil Aeronautics Board (CAB). PSA is an intrastate carrier and holds a Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission.

H-B Airport is located in a thickly populated area, and is entirely within the City of Burbank except 2,050 feet of the northernmost portion of its north-south runway, which lies in the City of Los Angeles. The north-south runway is the longer and preferred for take-offs. The east-west runway is better equipped with navigation guides for landing under minimum weather conditions. Both runways lead over residential districts in both directions.

In an effort to deal with the adverse environmental effects of jet aircraft at H-B Airport, specifically the problem of noise, the FAA Chief of the Airport Traffic Control Tower at the airport issued a series of runway preference orders. The last one, BUR 7100.5B, issued September 4, 1969, provided that, traffic and weather permitting, the east-west runway (landing from the east, taking off to the west) should be used as much as possible for departures of turbine powered aircraft between 11:00 p. m. of one day and 7:00 a. m. of the next.² Aircraft departing to the west overfly that portion of the City of Los Angeles known as North Hollywood.

On March 31, 1970, the City Council of Burbank, in response to continuing complaints about noise from the airport, passed Ordinance No. 2216, which added Section 20-32.1 to the Burbank Municipal Code.³ That ordinance, which took effect May 4, 1970, prohibited pure jet aircraft from taking off from H-B Airport between 11:00 p. m. of one day and 7:00 a. m. of the next day, and made it unlawful for the operator of the airport to allow such planes to take off at such times. Exception was made for emergency flights where the City Police Department was contacted and the Watch Commander on duty approved. The express purpose of this ordinance was to abate the serious environmental problem caused by the taking off of pure jet aircraft during sleeping hours.

One regularly scheduled flight was affected by the ordinance—an intrastate flight of PSA which originated in Oakland and departed from Burbank for San Diego at 11:30 p. m. each Sunday night. The other flights affected were principally departures of corporate jet aircraft.

Lockheed and PSA brought suit in the United States District Court for the Central District of California on May 14, 1970, against the City of Burbank and certain of its officers, seeking declaratory and injunctive relief on the ground that the Burbank ordinance is unconstitutional. Air Transport Association of America, an unincorporated association of scheduled interstate air carriers, was permitted to file a complaint in intervention.

The district court assumed jurisdiction over the case under 28 U.S.C. §§ 1331(a) and 1337, and trial of the action was held in September 1970. On November 30, the district court's findings of fact, conclusions of law and judgment were signed and filed. That judgment declared the Burbank ordinance unconstitutional, illegal and void, and enjoined its enforcement. The court held that the ordinance violated the Supremacy Clause, U.S.Const. art. VI, cl. 2, and the Commerce Clause, U.S.Const. art. I, § 8, cl. 3. Lockheed Air Terminal, Inc. v. Burbank, 318 F.Supp. 914 (C.D.Cal. 1970).

This appeal was taken from that final judgment pursuant to 28 U.S.C. § 1291, and is properly before us. In deciding this case, we limit ourselves to the issue whether the municipal ordinance is unconstitutional under the Supremacy Clause, as that determination is dispositive of the appeal.

The Supremacy Clause states that the Constitution, federal laws "made in Pursuance thereof . . .," and treaties "made under the Authority of the United States, shall be the supreme Law of the Land. . . ." U.S.Const. art. VI, cl. 2. It establishes as a principle of our federalism that state and local laws are not enforceable if they impinge upon an exclusive federal domain. This impermissible impingement is diversely described as "preemption" and "conflict." The application of those terms means that the state or local government has attempted to exercise power which it does not possess because of an express or implied denial of that authority in the Constitution, valid federal laws and regulations promulgated thereunder, or valid treaties. See Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971). Compare Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), and Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), with Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).

The Preemption Issue

In this case appellees (and FAA in its amicus curiae brief) contend that the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., operates to deny Burbank the power to enact the ordinance in question. There is no doubt that the Act creates a comprehensive federal scheme to deal with air commerce, under the administrative auspices of the FAA and CAB. Section 1508 declares that the United States possesses and exercises complete and exclusive national sovereignty in the navigable airspace over the country, and section 1304 grants to the citizens of the United States a public right of freedom of transit in this navigable airspace. The CAB issues Certificates of Public Convenience and Necessity to air carriers, without which they cannot engage in air transportation, 49 U.S.C. § 1371, and the FAA Administrator has power to prescribe air traffic rules and develop plans and policy for the use of the navigable airspace, 49 U.S.C. § 1348. He also issues airman, aircraft, air carrier and airport operating certificates. 49 U.S.C. §§ 1422-1424, 1432. Under section 1353, the Administrator of the FAA is directed to make "long range plans . . . and formulate policy . . ." for the use of the navigable airspace and the development of air navigation facilities, including airports. If an airport is built or materially altered, the Administrator must be notified, even though no federal funds are involved. 49 U.S.C. § 1350.⁴ Section 1431, which was added to the Federal Aviation Act in July 1968, specifically provides for responsibility of the FAA Administrator with respect to ecological and environmental problems:

"(a) In order to afford present and future relief and protection to the public from unnecessary aircraft noise and sonic boom, the Administrator of the Federal Aviation Administration . . . shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom. . . ."

Appellants (and the State of California as amicus curiae) argue that they are not precluded by the Federal Aviation Act from enacting the ordinance in question as an exercise of their police power, based on the legislative history of 49 U.S.C. § 1431, and the principle of State and local responsibility enunciated in the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq.

Whether a federal statute preempts the otherwise lawful authority of a State or local government to regulate in a specific area is a question of Congressional intent. "We start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Therefore, if Congress expressly declares that the authority conferred by it shall be singularly federal, the States may not exercise concomitant or supplementary power over the identical activity. Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961); Rice v. Santa Fe Elevator Corp., supra. Even when Congress has failed to speak expressly to the issue of federal exclusivity, intention to create sole federal authority can be implied. Key factors in this determination include: (1) the pervasiveness of the federal regulation, Rice v. Santa Fe Elevator Corp., supra; (2) dominance of...