National Aviation v. City of Hayward, Cal.

• Decision Date: 13 July 1976
• Docket Number: No. C-75-2279 RFP.,C-75-2279 RFP.
• Citation: 418 F. Supp. 417
• Parties: NATIONAL AVIATION, a general partnership dba National Air Freight, et al., Plaintiffs, v. The CITY OF HAYWARD, CALIFORNIA, Defendant.
• Court: U.S. District Court — Northern District of California

418 F. Supp. 417

NATIONAL AVIATION, a general partnership dba National Air Freight, et al., Plaintiffs, v. The CITY OF HAYWARD, CALIFORNIA, Defendant.

No. C-75-2279 RFP.

United States District Court, N. D. California.

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.

OPINION

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.¹

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.² Accordingly, these briefs having been submitted, we now turn to the disposition of the motions before us.

I. PRELIMINARY INJUNCTION

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,³ plaintiffs must satisfy the standards of the first test if a preliminary injunction is to issue.

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."⁴See Charlie's Girls Inc. v. Revlon Inc., supra. Accordingly, we now turn to an examination of plaintiffs' likelihood of success on the merits.

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. § 4901 et seq., as it amends the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., and the regulations promulgated thereunder⁵ 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.

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).⁶

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 "does 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...