San Diego Unified Port Dist. v. Gianturco

Decision Date30 August 1978
Docket NumberCiv. No. 78-97-S.
Citation457 F. Supp. 283
CourtU.S. District Court — Southern District of California
PartiesSAN DIEGO UNIFIED PORT DISTRICT, Plaintiff, Air Transport Association of America et al., Plaintiffs-in-Intervention, v. Adriana GIANTURCO, Director of Transportation of the State of California, Edwin J. McKenney, Chief of the Division of Aeronautics of the Department of Transportation of the State of California, and the Department of Transportation of the State of California, Defendants.


Michael Scott Gatzke, Luce, Forward, Hamilton & Scripps, San Diego, Cal., for plaintiffs; Ralph W. Dau, O'Melveny & Myers, Los Angeles, Cal., for plaintiffs-in-intervention.

Edward J. Connor, Jr., Dept. of Transportation, Sacramento, Cal., for defendants.



This is an action for declaratory and injunctive relief initially brought by the San Diego Unified Port District ("Port District") against the California Department of Transportation and two of its officers (collectively referred to as "Department"). The focus in the litigation is San Diego International Airport, Lindbergh Field, which is owned and operated by the Port District. The Department seeks to impose an extended curfew at Lindbergh Field which the Port District contends is unconstitutional.

The parties have raised numerous issues which require extended consideration.

General Background

In 1969 the California Legislature enacted legislation directing the Department of Aeronautics (now the Department of Transportation) to adopt noise standards for airports operating under a state permit. Cal. Pub.Util.Code § 21669 et seq. (West Supp. 1978). Pursuant to this statutory authorization, the Department subsequently adopted "noise standards" which now appear at 21 Cal.Admin.Code §§ 5000-5080.5.

The regulations adopted by the Department seek to achieve a gradual reduction in the amount of noise generated by aircraft take-offs and landings at California airports. The regulations establish what is known as a Community Noise Equivalent Level (CNEL). CNEL regulations provide a method for computing on a 24-hour basis an average noise exposure level. A cumulative analysis takes into account the total noise generated by aircraft "events" over a given period of time. The regulations require that, in graduated steps, no airport is to have a "noise impact boundary" containing "incompatible land use" in excess of 65 dB on the CNEL scale by 1985.

The CNEL regulations require an airport operator to operate its airport so as not to exceed the applicable CNEL noise level. Cal.Admin.Code § 5062. An operator unable to comply with the Noise Standards may apply to the Department for a variance. Cal.Admin.Code § 5075. As a practical matter, the Noise Standards are so stringent that each of the major airports in California, including Lindbergh Field, apparently must apply for a variance as a matter of routine.

Lindbergh Field's Variance Applications

The Port District, as proprietor of Lindbergh Field, filed its first application for a variance from the Noise Standards on January 24, 1975. Hearings were held before an administrative law judge on September 2-4, 1975. While this application was pending, on December 2, 1975, the Port District's Board of Port Commissioners adopted a resolution which imposed a curfew on most jet landings and take-offs between the hours of 12:00 midnight and 6:00 a. m. A proposed decision on the variance application by the administrative law judge was adopted by the Department of Transportation on January 19, 1976. The variance was granted for a period of one year subject to certain restrictions, one of which was the following:

2. Respondent San Diego Unified Port District shall diligently pursue every avenue to ensure that aircraft which fail to meet the FAR 36 requirements do not use the field for take-offs or landings during the hours from 11:00 p. m. until 7:00 a. m. each day. In this connection respondent will negotiate with the respective airlines in an effort to refrain scheduling nighttime flights. In all future contracts with air carriers, respondent shall require that aircraft not meeting the FAR 36 standards will not be used during the 11:00 p. m. to 7:00 a. m. hours. Respondent shall use its best efforts in urging the FAA to adopt a policy consistent with the restriction of nighttime flights which do not meet the FAR 36 standards. . . .

The Port District's second variance application was filed on January 14, 1977. Once again, an administrative law judge conducted hearings on this application. His proposed variance decision was adopted by the Department of Transportation on January 17, 1978.

This variance, like its predecessor, was granted subject to certain restrictions and conditions. The key condition, now challenged in this court, provides in pertinent part as follows:

4. Respondent San Diego Unified Port District is to retain the existing curfew which currently prohibits take-offs and landings by commercial air carriers between the hours of 12 midnight and 6:00 a. m. 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. . . .
Procedural Posture of this Litigation

Following the granting of the second variance, the Port District brought this action to have Condition 4—the "curfew condition" —declared unconstitutional. On March 13, 1978, the court heard argument on the Port District's motion for a preliminary injunction. The court denied the motion without prejudice, ruling that the Port District should first apply to the Federal Aviation Administration (FAA) for a determination as to whether the curfew extension would be unjustly discriminatory or detrimental to the National Air Transportation System.1

Immediately thereafter, the Port District followed the court's directive and applied to FAA for review of the curfew extension. Full background information was provided to FAA by both the Port District and the Department to facilitate review. In addition, FAA solicited and received information from various interested parties, including the Air Transport Association of America. On July 20, 1978, FAA advised both the Port District and the Department that it had completed its review of the matter. FAA indicated it would not provide any response and that no written statement concerning its review would be forthcoming.

Having exhausted its administrative remedies, the Port District looked again to this court for relief. In the face of threats by the Department that it would terminate the noise variance unless the Port District complied with Condition 4 and extended the Lindbergh Field curfew, the Port District applied for a temporary restraining order on July 28, 1978. The court granted the Port District's application.

On August 21, 1978, the court granted leave to the Air Transport Association of America and various commercial airline companies to intervene as plaintiffs in the litigation. The court then heard argument on motions by the Port District and intervenors for a preliminary injunction and the Department's motion for summary judgment. We now turn to a discussion of these motions.


In this circuit, a party seeking a preliminary injunction must satisfy one of two alternate tests to establish his entitlement to such relief. The first test requires a showing of probable success on the merits combined with the possibility of irreparable injury. The second test requires the applicant to demonstrate that serious questions are raised and that the balance of hardships tips sharply in his favor. Wm. Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 526 F.2d 86, 88 (9th Cir. 1975). In this case, the Port District and intervenors are entitled to a preliminary injunction under either test.

A. First Test
1. Irreparable Injury

As noted above, Condition 4 of the variance requires the Port District to lengthen the curfew now in effect from six to eight hours. The Port District and intervenors have established to the court's satisfaction that they will be irreparably injured if they are required to comply with this condition while the litigation is pending.

The likelihood of irreparable injury can best be understood by highlighting the problems and conflicting demands faced by Lindbergh Field. The airport is located in a central area of San Diego, only minutes from the downtown business district, hotels and motels, and tourist attractions. While the airport is most convenient in terms of its location, this convenience carries a high price. Lindbergh Field is surrounded by heavily populated residential areas. The noise generated by aircraft activity at Lindbergh Field has been, for many years, a source of great annoyance to nearby residents. Frequently, the airport and airlines which use the airport have found themselves defending noise-related lawsuits brought by these residents. Pressure often has been exerted on the Port District by various organizations to do something about the airport noise problem.

At the other end of the spectrum is a substantial segment of the community which believes air service in and out of San Diego should be developed more fully. These people have pressed the airport to increase its level of service so that San Diego can become a national center of tourism and commerce. They have argued, often successfully, that the San Diego community needs a high level of air service to maintain a strong economy.

To satisfy these conflicting demands, the Port District has chosen a middle course. By instituting a 12:00 midnight to 6:00 a. m. curfew on most jet take-offs and landings, the Port District has attempted to reduce the total amount of noise...

To continue reading

Request your trial
23 cases
  • Andrews v. County of Orange
    • United States
    • California Court of Appeals Court of Appeals
    • April 21, 1982
    ...aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.' " (Accord: San Diego Unified Port Dist. v. Gianturco (S.D.Cal.1978) 457 F.Supp. 283, 291, affd. (9th Cir. 1981) 651 F.2d The Westchester court thus found no reason in law or policy why the common ......
  • Star-Kist Foods, Inc. v. County of Los Angeles
    • United States
    • California Supreme Court
    • June 30, 1986
    ...(Rogers v. Brockette (5th Cir.1979) 588 F.2d 1057, cert. den., 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35; San Diego Unified Port Dist. v. Gianturco (S.D.Cal.1978) 457 F.Supp. 283, affd 651 F.2d 1306, cert den., 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866; Triplett v. Tiemann (D.Neb.1969) ......
  • NAACP v. State of Cal.
    • United States
    • U.S. District Court — Eastern District of California
    • April 3, 1981
    ...479 F.Supp. 392 (C.D.Cal.1979); Usry v. Louisiana Dept. of Highways, 459 F.Supp. 56 (E.D.La.1978); San Diego Unified Port Dist. v. Gianturco, 457 F.Supp. 283 (S.D.Cal. 1978); and Pharmacists Soc. of Mil. Cty. v. Dept. of H. & S., 79 F.R.D. 405 (E.D.Wis. There is, of course, no real issue as......
  • Tex. Voters Alliance v. Dall. Cnty.
    • United States
    • U.S. District Court — Eastern District of Texas
    • October 20, 2020
    ...the federal government.’ " City of Alpine v. Abbot , 730 F. Supp. 2d 630, 633 (W.D. Tex. 2010) (quoting San Diego Unified Port Dist. v. Gianturco , 457 F. Supp. 283, 290 (S.D. Cal. 1978), aff'd , 651 F.2d 1306 (9th Cir. 1981) ). It is the duty of federal courts to preserve this fundamental ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT