San Diego Unified Port Dist. v. Gianturco, 78-3260

Decision Date21 September 1981
Docket NumberNo. 78-3260,78-3260
Citation651 F.2d 1306
Parties, 12 Envtl. L. Rep. 20,091 SAN DIEGO UNIFIED PORT DISTRICT, Plaintiff-Appellee, and Air Transport Association of America, et al., Intervening Plaintiffs-Appellees, v. Adriana GIANTURCO, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Edward J. Connor, Jr., Atty., Dept. of Transportation (argued), San Diego, Cal Richard G. Rypinski, Chief Counsel, John B. Matheny, Asst. Chief Counsel, Mark F. Mispagel, Suzanne Jacobs, Susan K. Johann, Attys., Sacramento, Cal., (on brief), for defendants-appellants.

Michael Scott Gatzke (argued), Louis E. Goebel, Gregory T. Smith, Luce, Forward, Hamilton & Scripps, (on brief), San Diego, Cal. on brief, for plaintiff-appellee.

Peter R. Steenland, Jr., Atty., Dep.t. of Justice (argued), James W. Moorman, Asst. Atty. Gen., Dirk D. Snel, Atty., Washington, D.C., (on brief), for amicus curiae.

Appeal from the United States District Court for the Southern District of California.

Before WRIGHT * and TANG, Circuit Judges, and CURTIS, ** Senior District Judge.


We must determine whether the doctrine of federal preemption prevents the State of California from directing a political subdivision to impose a curfew on aircraft flights. In making our determination, we interpret the Supreme Court's decision in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), and later federal statutes. We affirm the district court which concluded that the state could not impose these curfew regulations.

The political subdivision which asserts the invalidity of the state's attempted imposition of a curfew is the San Diego Unified Port District. The Port District owns and operates San Diego International Airport, Lindbergh Field. Lindbergh Field is the principal airport serving San Diego, and is near the downtown area. Five million passengers pass through the airport each year. This volume of traffic requires frequent jet flights, which produce jet noise that has vexed local residents for some years.

The Port District has attempted to accommodate the needs of commerce and the quiet of San Diego residential areas, by, among other things, unilaterally imposing a midnight to 6:00 a. m. curfew on all commercial jet takeoffs. In addition, the curfew allows only jets meeting strict noise standards to land during those hours.

In spite of these efforts, the State of California, through its Department of Transportation (CalTrans), has attempted to impose a more restrictive curfew through regulations authorized by state statute. See Cal.Pub.Util.Code § 21669 (West Supp. 1981).

These would require the measurement of noise at all affected airports and forbid operation of those airports which exceed a preset noise level. See 21 Cal.Admin.Code § 5000-5080.5 (1977). 1 Airports which routinely exceed this level cannot operate without a variance issued under procedures established by the regulations. Id. § 5062. 2

Lindbergh Field is in this category, and in January of 1977 the Port District applied for a variance permit pursuant to CalTrans' regulations. 3 A state administrative law judge granted the permit, subject to six conditions. The fourth condition lies at the heart of this lawsuit and provides:

Respondent San Diego Unified Port District is to retain the existing curfew .... Respondent is to extend this existing curfew to the extent that commercial air carriers will not be permitted to take off between the hours of 11:00 p. m. and 7:00 a. m. and commercial air carriers will not be permitted to land between the hours of 11:00 p. m. and 7:00 a. m. unless such aircraft meet FAR Part 36 requirements ....

Not willing to extend its curfew another two hours, the Port District sought to enjoin enforcement of the condition. It has contended that federal control of both airspace management and the sources of aircraft noise preempts CalTrans' ability to place such a condition on the variance.

After an initial procedural phase, 4 including the intervention of the Air Transportation Association of America, 5 the district court rendered its decision. 457 F.Supp. 283 (S.D.Cal.1978).

Relying primarily on City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), the court adopted the Port District's position on preemption and issued a preliminary injunction. CalTrans has appealed. The state and several cities have joined it as amici curiae. In addition, the United States 6 and several states have filed briefs amici curiae.

I. Preemption and the Underlying Federal Policy

The Port District's attack on condition four rests primarily on the ground that federal law preempts state regulation of airspace management and control of the source of aircraft noise. 7 This preemption, it is claimed, renders CalTrans powerless to require the Port District to accept condition four.

The district court agreed and issued a preliminary injunction in favor of the Port District. On appeal, a preliminary injunction will not be reversed unless the lower court abused its discretion or based its decision on erroneous legal premises. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980).

CalTrans directs its arguments at the latter half of this test, claiming that the district court erred in relying on the City of Burbank case. To assess this claim, we inquire first into the applicable preemption doctrine.

The supremacy clause, U.S.Const., Art. VI, Cl. 2, invalidates any exercise of state power that unduly frustrates or obstructs the objectives of legitimate national policy. Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., --- U.S. ----, ----, 101 S.Ct. 1124, 1130, 67 L.Ed.2d 258 (1981); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978); Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

In assessing any claim brought under this clause, we start from the position "that the historic police powers of the states (are) not to be superseded ... 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). See also City of Milwaukee v. Illinois, --- U.S. ----, 101 S.Ct. 1784, 1790, 68 L.Ed.2d 114 (1981); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977).

Where, as here, Congress has not enacted an explicit preemption clause, 8 state authority may still be displaced if an intent to preempt is "implicitly contained in (the federal statute's) structure and purpose." Jones, 430 U.S. at 525, 97 S.Ct. at 1309. See also City of Milwaukee, --- U.S. ----, 101 S.Ct. at 1790.

Such an intent has been inferred when the state regulations could not be enforced "without impairing the federal superintendence of the field ...." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or when "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice, 331 U.S. at 230, 67 S.Ct. at 1152. See also Chicago & North Western Transp. Co., --- U.S. at ----, 101 S.Ct. at 1130.

Preclusion of state regulation is possible even in cases where the regulated entity can feasibly comply with both state and federal mandates. See Ray v. Atlantic Richfield Co., 435 U.S. 151 at 157-58, 98 S.Ct. 988 at 994, 55 L.Ed.2d 179; DeCanas v. Bica, 424 U.S. 351, 356-57 & n.7, 96 S.Ct. 933, 936-37 & n.7, 47 L.Ed.2d 43 (1976); Pennsylvania v. Nelson, 350 U.S. 497, 504-05, 76 S.Ct. 477, 481, 100 L.Ed. 640 (1956).

The key to the scope of federal preemption is the intent of Congress in enacting the applicable federal legislation. Malone, 435 U.S. at 504, 98 S.Ct. at 1189; Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963). If this intent does not appear in the statute, the above cases require us to evaluate the effect of the state action on the federal scheme to see if the state action impairs the objectives of national policy. Chicago & North Western Transp. Co., --- U.S. at ----, 101 S.Ct. at 1130; Ray, 435 U.S. at 157-58, 98 S.Ct. at 944; Hines, 312 U.S. at 67-68, 61 S.Ct. at 404. 9

Congress formulates the policies of the national government in its acts and resolutions. Our task is to interpret applicable congressional acts and to define the national policy to discern whether a given state regulation or, for that matter, any state regulation, could be compatible with the attainment of the national policy's objectives. Jones, 430 U.S. at 525, 97 S.Ct. at 1309; DeCanas, 424 U.S. at 358 n.7, 96 S.Ct. at 937; Florida Lime & Avocado Growers, Inc., 373 U.S. at 142, 83 S.Ct. at 1217. This case requires us to assess the effect of the state regulation on national aviation and aircraft noise policy.

The state regulation in question is easily defined. The state, through its police power, has sought to regulate and restrict aircraft flights directly by requiring the Port District to adopt a more extensive curfew than the Port District itself thought necessary and appropriate.

The interpretation and definition of applicable federal policies is more difficult. National policies with respect to aviation and noise are sufficiently complex that we must consider what is implicit in the federal regulatory scheme, its underlying assumptions, intended purposes, and desired effects. Jones, 430 U.S. at 525, 97 S.Ct. at 1309.

Much of this task has been performed by the Supreme Court. In City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973), it held that a local non-proprietary...

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