National Aviation v. City of Hayward (continued)

In the opinion of this court, it is ultimately this clear expression of legislative intent which must control our decision, for, to echo the analysis of Justice Douglas, when "congress legislate(s) in a field which the States have traditionally occupied. . . . (the) powers of the States (are) not to be superseded by the Federal Act unless that (is) the clear and manifest purpose of Congress.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). Accordingly, while the Congressional purpose was undoubtedly clear enough to the Burbank majority to rule that a municipality's police power regulations regarding aircraft noise at an airport, which it was not the proprietor of, invaded an area exclusively reserved for federal control, [FN10] this court cannot, in light of the clear Congressional statement that the amendments to the Federal Aviation Act were not designed to and would not "prevent airport proprietors from excluding any aircraft on the basis of noise considerations," [FN11] make the same finding with respect to regulations adopted by municipal airport proprietors. If Justice Douglas' comments regarding the need for an "uniform and exclusive system of federal regulation" prove correct, Congress and the FAA can take the appropriate steps to provide such a regulatory system. [FN12] However, at the present time, Congress and the FAA do not appear to have preempted the area, and therefore, the City of Hayward, as proprietor of Hayward Air Terminal, cannot be enjoined from enforcing ordinance 75-023 C.S. on preemption grounds. [FN13] Nor do we think that this ordinance can be enjoined under the "Commerce Clause."

[FN10] In addition to Justice Douglas' view that the scheme of federal regulation was pervasive, the majority relied upon statements by the Solicitor General and the Senate Commerce Committee to the effect that "as respects 'airspace management' there is preemption" (411 U.S. at 627) and that the proposed legislation "would not change this preemption. State and local governments "will remain unable to use their police powers to control aircraft noise by regulating the use of the aircraft." (Sen. Rep. No. 1353, 90th Cong., 2d Sess., 6-7).

[FN11] Sen. Rep. No. 1353, 90th Cong., 2d Sess., 7.

[FN12] Indeed, we understand that the FAA is presently in the process of studying four potential policy options in this area: (1) Airport proprietor actions unconstrained by FAA; (2) Airport proprietor completely constrained by FAA with a correlated development of a federal airport noise abatement plan; (3) Airport proprietor to establish a noise abatement plan; and (4) Continue the present policy of emphasizing ongoing efforts to reduce aircraft noise at its source through the development of appropriate technology as well as the development of noise abatement procedures. Under this final alternative, "the FAA would neither support nor oppose restrictions placed on the use of an airport to provide noise relief except where the restrictions constitute an undue burden on interstate commerce, or unjust discrimination or interfere with aircraft operating procedures or the management and control of navigable airspace." See Department of Transportation Memo, 40 Fed. Reg., Part 132 (July 9, 1975).

[FN13] There is some discussion in the briefs of striking down only that part of the Hayward ordinance which imposes a criminal penalty upon persons who violate the ordinance. The theory that apparently lies behind this suggestion is that this would more fully effectuate the Burbank holding that municipalities are preempted from regulating aircraft noise pursuant to their police powers. While this suggestion has a certain amount of appeal as a compromise solution to a difficult problem, further reflection militates against its acceptance.

Underlying the Burbank court's finding of preemption was Justice Douglas' perception of the need for a uniform and exclusive system of federal aircraft noise regulation. 411 U.S. at 638-39. Justice Douglas feared the fractionalized control of the timing of takeoffs and landings which might result if a significant number of municipalities enacted noise curfews like that of Burbank's. Id. Yet, as is set forth in the body of this opinion, Congress clearly intended that municipal airport proprietors issue regulations and establish requirements as to the permissible level of noise which could be created by aircrafts using the airports. See 411 U.S. at 635-36 n. 14. While, as acknowledged previously, giving effect to this Congressional intention, as this court has chosen to do here, will certainly undercut the Burbank finding of preemption to some extent; but, declaring that municipal airport proprietors can issue noise regulations, yet not enforcing the violation of those regulations with criminal penalties, would do nothing to further effectuate the Burbank rationale.

Congress was concerned with who could regulate aircraft noise and not with the manner in which such regulations were promulgated or enforced. Thus, Congress recognized that municipal airport proprietors (but not other municipalities) were responsible for obtaining noise easements necessary to permit the landing and takeoff of aircrafts, and accordingly intended to preserve the concomitant right of those proprietors to exclude any aircraft on the basis of noise considerations. See 411 U.S. at 649, 93 S.Ct. 1854.

In the instant case, it appears that Hayward chose to regulate the level of aircraft noise at Hayward Air Terminal by the passage of a city ordinance only because that was the manner in which Hayward regulated all facets of its airports (Hayward Municipal Code sections 2-6.51 -- 2-6.150), its parks (sections 2-6.10 -- 2-6.16), its libraries (sections 2-6.02 -- 2-6.05) and all other public facilities. Moreover, the misdemeanor sanction for violation of ordinance 75-023 C.S. appears to have been included solely because any person violating any provision of the Hayward Municipal Code is by its very terms guilty of a misdemeanor. Hayward Municipal Code sections 1-3.00.

Under these circumstances, we see no purpose in striking down the criminal penalty provision of Hayward ordinance 75-023 C.S., and thereby forcing the city to enforce its regulations, where necessary, by use of a civil injunction, the violation of which would result in a finding of contempt and in all probability a penalty closely approximating the one presently provided for.

2. The Commerce Clause. There is some question as to the exact test that should be used to determine whether a local legislative enactment's effect on an area of interstate commerce, which has not been preempted by Congressional legislation, is violative of the Commerce Clause. See Procter and Gamble Company v. City of Chicago, 509 F.2d 69, 75 (7th Cir. 1975). However, it is clear that the first question to be determined is whether there is an effect on interstate commerce for if there is no effect, there is no need for further inquiry. Assuming that there is an effect, the next issue is whether the legislative body "has acted within its province, and whether the means of regulation chosen are reasonably adapted to the end sought." S.C. Highway Dep't v. Barnwell Bros., 303 U.S. 177, 190, 82 L. Ed. 734, 58 S. Ct. 510 (1938). The inquiry here also focuses on whether the legislative action discriminates against interstate commerce. Id. at 189. It is after this point, though, where there appears to be some conflict in the analysis to be used.

There is some support for the proposition that once it is determined that the legislation is a reasonable means of achieving a nondiscriminatory, legitimate goal, it should be deemed constitutional without need for further inquiry. See Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad Co., 393 U.S. 129, 21 L. Ed. 2d 289, 89 S. Ct. 323 (1968); S.C. Highway Dep't v. Barnwell Bros., supra. However, the test more frequently employed by the Supreme Court requires that the burden imposed on interstate commerce be further balanced against he local interest supporting the legislation in order to determine the ultimate question of constitutionality. See, e.g., Bibb v. Navajo Freight Lines, 359 U.S. 520, 3 L. Ed. 2d 1003, 79 S. Ct. 962 (1959); Southern Pacific Co. v. Arizona, 325 U.S. 761, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945). The Supreme Court's most recent formulation of this standard appeared in Pike v. Bruce Church Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970):

Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.
Efforts to reconcile these two differing standards usually focus on one of two circumstances which could preclude the need for "balancing." One circumstance present in Barnwell Bros., supra, was that the regulation in question was said to be of "peculiarly local concern":
Ever since Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 7 L. Ed. 412 and Cooley v. Board of Port Wardens, 53 U.S. (12 How.) 299, [13 L. Ed. 996], it has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce but which because of their local character and their number and diversity, may never be fully dealt with by Congress. Notwithstanding the commerce clause, such regulation in the absence of Congressional action has for the most part been left to the states....

. . . . .

. . . Few subjects of state regulation are so peculiarly of local concern as is the use of state highways. There are few, local regulations of which is so inseparable from a substantial effect on interstate commerce. Unlike the railroads, local highways are built owned and maintained by the state or its municipal subdivisions.

. . . [R]egulations of the use of highways are akin to local regulation of rivers, harbors, piers and docks, quarantine regulations, and game laws, which Congress not acting, have been sustained even though they may materially interfere with interstate commerce. [313 U.S. at 185, 187-188 (footnotes omitted).]

A second circumstance, at play in Brotherhood, supra, involved the propriety of weighing conflicting evidence regarding the ultimate value of the challenged legislation. The Court said:
The question of safety in the circumstances of this case is essentially a matter of public policy, and public policy can, under our constitutional system, be fixed only by the people acting through their elected representatives. The District Court's responsibility for making "findings of fact " certainly does not authorize it to resolve conflicts in the evidence against the legislature's conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative [judgment] constitutes nothing more than . . . "pure speculation."
393 U.S. at 138, 139. [FN14]
[FN14] See also S. C. Highway Dep't v. Barnwell Bros., 303 U.S. at 190-91. But see Southern Pacific Co. v. Arizona, 325 U.S. 761, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945).
While in the instant case, there is no question regarding the ultimate value or purpose of the Hayward ordinance, proprietary noise control of airports could be said to be a matter of "peculiarly local concern." In Huron-Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960), the Court noted that the problem of air pollution is "peculiarly a matter of state and local concern" and upheld the constitutionality of Detroit's Smoke Abatement Code, finding that it did not discriminate against interstate commerce. There also appears to be ample evidence in the Burbank opinion, and the legislative history discussed herein, from which a similar conclusion could be drawn with respect to the control of airport noise. However, we need not decide this issue because in our view the Hayward ordinance could not be invalidated even under the more stringent "balancing" standard.

Plaintiffs argue that the Hayward ordinance burdens interstate commerce by forcing them to make their flights from Oakland Airport rather than Hayward Air Terminal, thereby impairing their ability to deliver the mail and newspapers to customers in California and other nearby states. However, it appears from the record that plaintiffs have had little problem in successfully shifting their operations, where necessary, to the Oakland Airport and that they are still delivering the same newspapers and cargos out of state that they did before the ordinance was enacted. [FN15] Moreover, there is evidence to indicate that at least some of plaintiffs' planes can comply, and have complied, with the 75 dBA noise level set by the Hayward ordinance. [FN16] Thus, any effect on interstate commerce produced by the ordinance seems to be incidental at best and clearly not excessive when weighed against the legitimate and concededly laudable goal of controlling the noise levels at the Hayward Air Terminal during late evening and morning hours. [FN17]

[FN15] See, e.g., Affidavit of Peter W. Davis, filed January 8, 1976, pp. A6, All.

[FN16] See Affidavit of Armin T. Wright filed January 8, 1976; Affidavit of William W. Schofield filed January 8, 1976, pp. A18-A19.

[FN17] The only evidence that plaintiffs have offered the court regarding the burden on interstate commerce which has been imposed upon them as a result of defendant's ordinance consist of vague and conclusory allegations in three affidavits filed by Messrs. Reese, K. Robinson and R. Robinson. The evidence set forth in these affidavits is accurately summarized in the sixth paragraph of plaintiffs' March 31, 1976, letter to the court:

Plaintiffs are regularly engaged in the interstate transportation of perishable cargos, Federal Reserve bank deposits, late edition newspapers and United States mail. . . . The affidavits previously filed herein . . . state the involvement of these plaintiffs in interstate commerce [and] . . . also state that plaintiffs have been adversely affected in their interstate transport of the above items and that their business has declined as a result of this ordinance.
Perhaps recognizing this, the real thrust of plaintiffs and amicus' argument is directed at the potential for conflicting legislation which itself is alleged to constitute an impermissible burden on interstate commerce. The cases, however, on which plaintiffs and amicus rely upon to support this argument all involve instances in which the regulations in question either conflicted with existing federal legislation or regulations, or invaded an area preempted by Congress. See Lockheed Air Terminal v. City of Burbank, 318 F. Supp. 914 (C.D. Cal. 1970) aff'd without reaching commerce clause issue, 457 F.2d 667 (9th Cir. 1972), 411 U.S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973); American Airlines Inc. v. City of Audubon Park, 297 F. Supp. 207 (W.D. Ky. 1968) aff'd 407 F.2d 1306 (6th Cir. 1969); American Airlines Inc. v. Town of Hempstead, 272 F. Supp. 226 (E.D. N.Y. 1967) aff'd without reaching commerce clause issue 393 U.S. 1017, 89 S. Ct. 620, 21 L. Ed. 2d 561 (1969); All American Airways v. Village of Cedarhurst, 106 F. Supp. 521 (E.D. N.Y. 1952); aff'd sub nom. Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1956). Significantly, while the District Court's holding on the commerce clause in Burbank was not reached in the affirmances of the Ninth Circuit or the Supreme Court, Mr. Justice Rehnquist, in a dissenting opinion in which three other members of the court joined, labelled that holding of "questionable validity" noting that "the proper determination of the question turns on an evaluation of the facts of each case, [citing], Bibb v. Navajo Freight Lines, 359 U.S. 520, [79 S. Ct. 962, 3 L. Ed. 2d 1003] (1959)." 411 U.S. at 654. Indeed, in Huron-Portland Cement Co. v. City of Detroit, supra, the Court noted that while appellant had argued that other local governments might impose differing requirements as to air pollution, it had pointed to none, and accordingly rejected appellant's commerce clause argument. See also Procter and Gamble Co. v. City of Chicago, supra, 500 F.2d at 77.

As in Huron-Portland Cement, the record here contains "nothing to suggest the existence of any such competing or conflicting local regulation." 362 U.S. at 449. While plaintiffs point to the fact that Oakland Airport has received a complaint from the City of Alameda regarding excessive noise on runway 15, defendant has submitted the affidavit of Francis H. Witcomb, Manager of the Oakland Metropolitan Airport, which is set forth in relevant part in the margin below, [FN18] and which indicates that Oakland has no plans to enact an ordinance for the Oakland Airport similar to that of the Hayward ordinance. [FN19]

[FN18] ". . . I recollect that a noise complaint had been received from the city of Alameda concerning noise on the southern tip of the main island of the City of Alameda. I surmised that that noise may have been caused by aircraft using Runway 15-33, although the noise could have been caused by aircraft using Runways 9-27 Right or 9-27 Left, or the noise could have been caused by overflights of aircraft not using the Oakland Airport. Although National Aviation's use of these three Oakland Airport North Field Runways could potentially lead to noise complaints, its use of the South Field Runway 11-29 greatly reduces or eliminates that possibility. National Aviation has, in fact, used Runway 11-29 and its operations have produced no noise complaints.

3. In making this affidavit, I also reviewed the Affidavit of Robert H. Brydon, dated February 26, 1976, and I agree that the operations conducted by National Aviation during the nighttime hours generally between the hours of midnight and 3:00 a.m. did not interfere with the normal use and operation of the Oakland Airport by scheduled air carriers which serve Oakland Airport.

4. At the present time, the Port of Oakland has no plans of which I am aware, for enacting an ordinance for the Oakland Airport similar to the Hayward ordinance which I have reviewed, and which would restrict aircraft operations of the type conducted by National Aviation from the Oakland Airport."

[FN19] It does not appear that the voluntary jet takeoff ban which Oakland Airport is reported to have instituted with respect to certain of its northern runways affect plaintiffs' aircrafts. Moreover, there is no evidence that this voluntary program will hamper plaintiffs' aircrafts from using that airport's southern runways.

To summarize then, on the record before us there is insufficient evidence from which to conclude that the Hayward ordinance is presently imposing anything but an "incidental" burden on interstate commerce. The possibility that other municipalities will sometime in the future enact similar ordinances, which will together then create an impermissible burden on interstate commerce is mere speculation. Accordingly, this court cannot enjoin enforcement of Hayward ordinance 75-023 C.S. on commerce clause grounds.

3. Breach of Prior Federal Agreements. The Hayward Air Terminal was originally an Army Air Corp field that was quit-claimed to the City of Hayward in 1946 with provisions inter alia that the airport "shall prevent any land use either within or outside the boundaries of the airport . . . [which would] limit its usefulness as an airport." These requirements have also been periodically restated in agreements for federal funding of projects at the Hayward Air Terminal, such as the Airport and Airway Development Plan grants, see 49 U.S.C. 1713-1719, from which Hayward has received substantial amounts of money.

Plaintiffs argue that Hayward ordinance 75-023 C.S. contravenes the provisions in these various federal agreements and that there never would have been any need for the ordinance had Hayward complied with the provisions which require the city to attempt to provide for land use that will be compatible with the airport.

At the outset, we note that there are serious questions as to plaintiffs' standing as third party beneficiaries to raise these claims. Compare Port of New York Authority v. Eastern Air Lines, 259 F. Supp. 745 (E.D. N.Y. 1966); City and County of San Francisco v. Western Air Lines, 204 Cal. App. 2d 105, 22 Cal. Rptr. 216 (1st Dist. 1962) with Miree v. United States, 526 F.2d 679 (5th Cir. 1976); City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9th Cir. 1971). Moreover, there is also a question as to whether, if plaintiffs have standing, they have properly exhausted their administrative remedies. See City of Inglewood v. City of Los Angeles, supra, 451 F.2d at 956; Port of New York Authority v. Eastern Air Lines, supra, 259 F. Supp. at 753. However, even assuming that the merits of plaintiffs' claim are properly before the court, we fail to see how enactment of the Hayward ordinance violates any of the agreements relied on by plaintiffs.

Plaintiffs' claim that the City of Hayward failed to adequately provide for compatible land use around its airport is not well taken. It is apparent from the record, that the Hayward ordinance was enacted primarily in response to complaints from residents in nearby San Lorenzo, whose land use Hayward has no ability to control. Moreover, given the competing factors that Hayward had to consider, this court is of the opinion that Hayward has made its airport available for public use on fair and reasonable terms. While there is some evidence to indicate that the ordinance was primarily passed with plaintiffs in mind, this seems to be because it was plaintiffs' planes that were causing most of the noise problems. In any case, it is clear that the ordinance does not unjustly discriminate against the plaintiffs. The only two distinctions which the ordinance makes are that it operates only between the hours of 11:00 p.m. and 7:00 a.m. and that it applies only to airplanes that emit more than 75 dBA of noise in takeoff or landing. The reasons for the former distinction are obvious. The latter distinction was established only after consultation with an expert in the noise field and is based on that expert's appraisal of maximum permissible noise levels that would not disturb sleep. Both distinctions apply to all plane operators in the same manner.

Thus, plaintiffs have also failed to demonstrate a reasonable likelihood that they will prevail on the merits of this claim and, therefore, this court must, and hereby does, deny their motion for a preliminary injunction.

Continued in Part Three