Appeal from the United States District Court for the Central District of California. D.C. No. CV-83-4065-LEW. Laughlin E. Waters, District Judge, Presiding.
Before: Thomas Tang, Mary M. Schroeder and Robert R. Beezer, Circuit Judges.
We review a permanent injunction following ten years of litigation over efforts by the City of Long Beach to regulate noise emanating from aircraft using the Long Beach Municipal Airport. The litigation has been waged between the city, which owns and operates the airport, and various commercial airline passenger carriers who contended that the city's ordinances unfairly limit their flights. The city here appeals the district court's judgment permanently enjoining operation of the city's most recent ordinance and preventing the city from reducing the number of permitted daily carrier flights below 40. The district court ruled that the ordinance was unlawful on several grounds, including the following: (1) the ability of the city to regulate noise at the airport was preempted by federal law; (2) the flight and noise limitations impermissibly burdened interstate commerce; (3) several of the provisions were arbitrary, capricious, or not rationally related to legitimate governmental concerns; (4) the ordinance discriminated against air carriers in violation of equal protection; and (5) the ordinance denied procedural due process because it authorized reductions in flights without opportunity for a hearing. The district court also ruled that the city had impermissibly denied all access to a class of commuter airlines under a preliminary injunction issued during the pendency of the litigation. It held that the city had erroneously interpreted that injunction as requiring such exclusion, that the original ordinance similarly did not require such exclusion, and that such exclusion impermissibly burdened interstate commerce.
The ordinance contains a nonseverability clause expressly providing that if one provision of the ordinance is held to be unlawful, the entire ordinance will be without force and effect. Thus, if we agree with any of the district court's grounds for its injunction, we must affirm. Because we agree with the district court that the provisions of the ordinance denying opportunity for notice and hearing in connection with flight reductions violate principles of due process, we affirm the injunction. We also affirm the district court's ruling that the preliminary injunction did not authorize the city to exclude the commuters. In order to avoid unnecessary future litigation, we consider in this opinion the principal other grounds upon which the district court's injunction rests, and we conclude that the district court erroneously relied upon them.
The airport began operations in 1923 on city property surrounded mainly by residential housing. Throughout its history, the airport has had heavy military and general aviation usage. In 1981, the city council adopted its first noise control ordinance, the "Aircraft Noise Control Regulation" which limited air carrier flights to fifteen per day and required carriers to use quieter equipment.
This litigation was filed on June 23, 1983 by Alaska Airlines. Other commercial airlines have subsequently intervened. In December of 1983, the district court ruled, on the record before it, that there was an insufficient basis to support the fifteen-flight restriction. It entered a preliminary injunction prohibiting the city from reducing the number of daily carrier flights below eighteen.
Following entry of the preliminary injunction, the city undertook an extensive study of the noise situation at the airport, funded under 14 C.F.R. §§ 150.1-150.35 by funds from the Federal Aviation Administration. The study was called the "Part 150 Task Force Study." The federal regulations call for development of a "noise compatibility program" ("NCP"). The city submitted its final NCP and implementing ordinance to the FAA for review in July of 1986. Apparently they still have not received FAA approval. This appeal does not directly involve issues concerning the FAA regulations.
In the meantime, prior to completion of the report based upon the Task Force's preliminary recommendations, and apparently in part spurred by numerous noise-related nuisance and inverse condemnation claims filed by residents affected by airport operations, the city went forward with preparation and adoption of an ordinance. The principal elements of the ordinance included a limit of 65 decibels on the Community Noise Equivalent Level ("CNEL"). In addition it limited the number of air carrier jet flights and set noise limits for individual aircraft. The document is lengthy and technical.
Following adoption of the 1986 ordinance, the city moved the district court to vacate the pending injunction, and the air carriers moved the court to modify the injunction to permit additional flights. Pending trial, the district court ordered the city to increase the number of daily carrier flights to 26, and this court affirmed without published opinion. See 815 F.2d 714 (9th Cir. 1987).
The case was tried in March and April of 1988, and the district court ultimately entered a Memorandum of Decision and Findings of Fact and Conclusions of Law invalidating the ordinance. The city appeals both from the entry of the judgment and the post-judgment order increasing the minimum number of allowable flights from 26 to 40.
Under the supremacy clause,*fn1 federal law preempts state law when Congress expressly or impliedly indicates an intention to displace state law, or when state law actually conflicts with federal law. Wardair Canada v. Florida Department of Revenue, 477 U.S. 1, 6 (1986). In 1973, the Supreme Court held that the pervasive scope of federal regulation of the airways implied a congressional intention to preempt municipal aircraft noise restrictions based upon the police power. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638-40 (1973). The Court left the door open to noise regulations imposed by municipalities acting as airport proprietors, however, based on such municipalities' legitimate interest in avoiding liability for excessive noise generated by the airports they own. Id. at 635-36 n.14. See Griggs v. Allegheny County, 369 U.S. 84, 88-90, reh'g denied, 369 U.S. 857 (1962). After Burbank, Congress expressly provided that the proprietary powers and rights of municipal airport owners are not preempted by federal law. 49 U.S.C. § 1305(b)(1). We recognized that municipally owned airports qualify for a proprietor exemption from preemption in Santa Monica Airport Ass'n v. City of Santa Monica, 659 F.2d 100, 102-104 (9th Cir. 1981).
Here, the air carriers argue that the ordinance's indemnity clause removes the city's right to claim the proprietor exemption because it shifts liability to airport users. Section 16.45.130 of the ordinance states: "Commencement of flight operations at Long Beach airport shall be deemed to constitute an undertaking to indemnify the City of Long Beach for any judgment for nuisance, noise, inverse condemnation or other damages awarded against the City as a result of flight operations of that user at the Long Beach ...