HomeMy WebLinkAboutC-2184 - Legal Services for John Wayne Airportr
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PROPOSAL FOR OPPOSITION TO INCREASED NOISE
AT JOHN WAYNE AIRPORT
Prepared for:
The City Council of Newport Beach,
California
EM
Norton Cutler
Dykema, Gossett, Spencer,
Goodnow & Trigg
Ir :ECEIVED
Wr AR
MAY 12 080 ►
ary OF
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PROPOSAL FOR OPPOSITION TO INCREASED NOISE
AT JOHN WAYNE AIRPORT
This memorandum discusses some preliminary recommenda-
tions on how the City of Newport Beach might protect its
citizens from increased aircraft noise as a result of opera-
tions at John Wayne Airport. You have asked us to address
three problems: (1) the decisions of the CAB certifying
numerous additional air carriers to serve John Wayne; (2) an
FAA letter to the Chairman of the Orange County Board of Super-
visors, the operator of John Wayne, urging him to open up John
Wayne Airport to air carriers other than Air California and Air
West and eliminate many of the current noise restrictions; and
(3) a longer range problem of how to prevent what your City
Attorney views as the risk that the pressure from additional
carriers seeking to serve the rapidly growing area around the
airport will persuade the County to lift the current noise
control limits whatever the outcome of the current FAA pro-
ceedings.
SUMMARY OF RECOMMENDATIONS
We would suggest the following in respect of the fore-
going problems.
(1) In response to the CAB certifications we recommend
that you do nothing because the chances of ultimately prevent-
ing the certification of additional carriers are very slim.
(2) To oppose the FAA actions we recommend that you
intervene in the lawsuit already filed by Air California to
prevent the FAA from pursuing its present tactics and that in
combination with Orange County or alone you seek to facilitate
a settlement of the County's disputes with the FAA whereby the
County opens John Wayne to other air carriers but retains the
rest of the current noise restrictions.
• -2-
(3) We advise three separate tactics to solve your long-
range problem. (a) Persuade Orange County that the risk of
damage suits resulting from increased commercial flight activity
at John Wayne outweighs the benefits to the County of increased
commercial air service; (b) Petition the FAA for a rulemaking
that would prevent any increase in commercial operations at an
airport unless the airport could prove that the increase would
not result in increases in the noise level to an extent that
would damage the surrounding community; (c) Seek federal legis-
lation similar to the above proposed rule.
FACTUAL BACKGROUND
As we have gathered from our conversations with Mayor
Heather and City Attorney Coffin and the documents supplied
to us, the factual background of the noise problem at John
Wayne Airport is as follows. John Wayne lies at the northeast
edge of the City of Newport Beach and is operated by the
Board of Supervisors of Orange County. The runways are aligned
so that takeoffs into prevailing winds result in the aircraft
flying over upper Newport Bay at very low altitudes. To con-
trol flight pattern noise, Orange County has essentially
instituted the following restrictions on operation of aircraft
at John Wayne. It has refused to certify any new commercial
carriers making Air California, Air West and Golden West (a
non -jet commuter carrier) the only commercial carriers serving
John Wayne. Only 40 turbojet commercial flights may serve the
airport daily. No jet takeoffs or landings may occur between
the hours of 11 p.m. and 7 a.m. except those made by.the
Cessna Citation and other "quiet" jets (no commercial jetliners
currently meet these specifications). No commercial flights
shall serve cities farther away than 500 miles. The County
has refused to apply for federal funds to increase the runway
strength so that jet aircraft heavier than the DC -9 and Boeing
737 could serve John Wayne.
• -3-
The FAA has conducted hearings in Orange County on the
subject of noise control at John Wayne which hearings resulted
in a fact - finding report and, in due course, a letter from the
FAA to the Chairman of the Board of Supervisors alleging that
all of the John Wayne noise restrictions impermissibly discrim-
inate against new entrants. In its letter the FAA threatens
to seek contractual, injunctive, and civil penalties if the
County does not correct the situation.
The FAA has urged that, at a minimum there be adopted by
Orange County a system of a "slot bidding" for the 40 available
flights if the flight restriction is maintained.
In response to the FAA's threats, the staff of the
County Board of Supervisors has recommended in a lengthy memo-
randum that the County end the exclusive rights of Air California,
Air West and Golden West but essentially keep all the other
present restrictions.
Air California has filed a lawsuit challenging the pro-
priety of the FAA's informal procedures leading to the FAA's
threats. In addition, Air California is seeking a declaratory
judgment as to the validity of the existing noise regulations,
a writ to force the FAA to conduct a full - fledged investigation
into the problem and a preliminary injunction to prevent the
FAA from pursuing its current tactics.
Recently the CAB certified four additional carriers
to serve John Wayne over the objection of Newport that require-
ments for an environmental impact statement had not been met.
LEGAL BACKGROUND
The recent Conoorde Cases in New York have reaffirmed
the division of authority between the local airport operators
and the federal government in controlling air transportation.
Basically the FAA is in charge in the air and the local airport
operator controls on the ground. Thus local airport operators
! -4- !
may enact reasonable nondiscriminatory noise control regulations
by limiting the number of takeoffs and landings and the types
and sizes of permissible aircraft but neither airport operators
nor the surrounding communities may Cictate the flight
patterns or noise levels once planes are airborne.
The FAA clearly has statutory power to make noise
regulations governing the operation of aircraft. FAA has used•
this power in respect of engine noise. However, FAA to date
has not exercised its authority to regulate the frequency or
timing of such noise in airport environs. P7ere the FAA to
exercise such authority, the FAA effectively would preempt
liberalization of frequency rules by local airport operators.
The FAA also can control local airports by attaching
conditions to grants of federal money to airports through the
Federal -aid to Airports (ADAP) program and to the issuance and
maintenance of operating certificates for airports serving
CAB licensed carriers.
OPPOSING THE CAB ACTION
The CAB has granted entry to the Orange Countv market
to four additional carriers. The City has filed its notice
of appeal on the grounds that no Environmental Impact Statement
( "EIS ") was ever filed. The CAB's own rules, 14 CFR part 312
appear to require the filing of such a statement, to wit:
§ 312.9 Actions with a potential effect on the
environment.
(a) The following are the types of Federal
actions which require the preparation of an
environmental evaluation:
(1) Licensing proceedings under sections
401 or 402 of the Act.
Issuing new certificates must involve licensing proceedings
under § 401 of the Act. Despite the excellent chances for
success in the appeal, we recommend against your allocating sig-
nificant resources to the appeal because in all likelihood it
will only delay the inevitable as the CAB in due course would
file a proper EIS.
• -5-
OPPOSING THE FAA "ORDER"
The FAA letter is clearly not an order but rather a
threat to force Orange County either to accede to the FAA's
suggestions or suffer a loss of the John Wayne operating certif-
icate, federal funding or civil penalties for violation of the
Federal Aviation Act. We recommend that the city join the Air
California lawsuit and file affidavits as to the irreparable
injury that would result from changes in the existing rules at j
John Wayne. We understand that such evidence would demonstrate
that any lifting of the curfew, the limit on number of flights
or the distance limitations will cause increased noise which
will result in irreparable injury to the citizens and wildlife
of Newport Beach. Numerous affidavits to this effect should
help in obtaining a preliminary injunction to prevent the FAA
from pursuing its current tactics pending the outcome of the
litigation.
In addition, Air California is seeking to legitimize
what appears to us to be in fact the most legally objectionable
part of the current rules -- the exclusion of all new air
carriers from John Wavne. The exclusion is plainly discrimina-
tory and prohibited by the Federal Aviation Act and any court
should and probably would allow the FAA to prevent such conduct
regardless of the propriety of related EIS or other peripheral
matters.
As we understand it, eliminating exclusive rights might
not be objectionable to Newport as long as the County maintains
the curfew, the 500 mile limit, and the 40 flight per day limit.
These restrictions do not discriminate if scientific evidence
establishes they are necessary to prevent objectionable
increases in the noise level. Indeed the FAA Hearing Officer's
report appears to find the foregoing restrictions to be a more
suitable approach to noise control than the banning of new
• -6-
carriers. Newport can urge the court to prevent the FAA from
eliminating the other reasonable nondiscriminatory restrictions
on airport use with some degree of optimism.
Our optimism tends to be supported by indications you
have received that the FAA might even settle with Orange County
on such a basis. The FAA may perceive such a settlement as
beneficial because it would eliminate all the parts of Air
California's lawsuit which allege that the FAA is forcing a
"major change" in the surrounding environment and has failed to
file the required EIS. Adding a few carriers while maintaining
the existing limits would cause only minor changes that would
not require an EIS. In addition if exclusive rights become the
only issue, the court may view the Air California lawsuit as a
thinly disguised attempt to preserve Air California and Air
West's duopoly at John Wayne and not a sympathetic effort to
save the people of Newport Beach from excessive aircraft noise.
Since the FAA has not yet taken any specific actions,
the court may dismiss the Air California suit as premature. In
such case, Newport could oppose whatever "contractual, civil,
and injunctive relief" the FAA might seek in carrying out its
threats. However, if the County were to accept the FAA sug-
gestions to open the airport to new carriers without maintain-
ing the 40 flight restriction, the curfew, and so forth, there
might be no proceeding in which Newport could intervene. It
appears to be highly unlikely that the County will accede to the
FAA threats because the Orange County staff memo of April 29,
1980 urges essentially the same strategy we have outlined above.
In short, Newport can raise some attractive nondiscrim-
inatory arguments which are not available to Air California.
These arguments can be raised in opposition to an FAA lawsuit
or in an administrative proceeding against John Wayne or in
an appeal of an FAA order. Participation in any of these
• -7_ •
proceedings offers an opportunity for substantive relief instead
of merely delaying the CAB's order by requiring the filing of
an environmental impact statement.
LONG TERM SOLUTIONS
A. Orange County Controls
Although the New York Concorde Cases allow Orange County
to enact reasonable noise restrictions in its role as airport
proprietor while the planes are on the ground, there is always
the threat that the County will relax its standards. The
likely increase in demand for air travel in the County will
lead to additional pressure on the County to increase the number
of commercial jet flights permitted at John Wayne and the result-
ing increases in noise over Newport.
The only existing deterrent to increases in commercial
jet flights is the threat of damage suits against the County
by the citizens of Newport Beach. The Mayor and the City
Attorney have informed us that you believe that ultimately the
County will decide that the benefits of increases in commercial
jet air traffic at John Wayne outweigh the damage exposure of
the County and relax the current noise restrictions.
B. FAA Controls
The continuing peril of a change in County policy speaks
for a more reliable solution. One such strategy to prevent any
future increase in noise level may be for Newport to petition the
FAA for a rulemaking that would prevent any increase by an
airport operator in the amount of noise resulting from takeoffs,
landings, and other operation of aircraft unless such increases
satisfy various stringent requirements assuring that no harmful
increases in the noise level in the affected area would occur.
The administrator of the FAA has power to promulgate noise
standards by virtue of 49 U.S.C. § 1431, to wit:
"(b)(1) In order to afford present and future
relief and protection to the public health and
welfare from aircraft noise . . . the [Adminis-
trator] . after consultation with the
Secretary of Transportation and with [Environmental
Protection Agency] . . . shall prescribe and amend
standards for the measurement of aircraft noise . . .
and shall prescribe and amend such regulation as
the FAA may find necessary to provide for the control
and abatement of aircraft noise . . . including
the application of such standards and regulations
in the issuance, amendment, modification, suspension,
or revocation of any certificate authorized by this
subchapter."
While the Administrator heretofore has limited the exer-
cise of this statutory power to promulgation of engine design
standards, there is judicial support for the broader plain
reading of the statute. For example;
11[1,2] It seems clear from 9 1431 that Congress
intended that the Administrator promulgate noise
control regulations which would establish standards
not only for aircraft design but also their _ope_raatioon,
and that a failure to comply with those Stan ard� s
should be a factor to be considered by the Adminis-
trator in issuing or revoking any of the above -noted
certificates." Corace v. Butterfield, 387 F. Supp.
446, 447 (E.D. N.Y. 1975).
Thus, the FAA has the power to issue noise regulations
that would control the number and type of takeoffs at John
Wayne by controlling operations around the airport. In addi-
tion it could also impose conditions upon the certificates
granted to John Wayne or any monetary grants made to the air-
port. obviously, the difficulty would be in persuading the
agency to initiate such a rulemaking and to adopt the necessary
regulations.
The FAA letter indicates that FAA is not inclined to
permit local citizens to stand in the way of increasing the
number of carriers at a formerly small community airport.
There is, however, room for negotiation with the agency, since
Newport appears to have no objection to the entry of additional
carriers as long as the 40 flight per day limit is maintained.
For example, Newport could support the addition of several
non - turbojet commuter carriers that might fly to Ontario and LAX
to join long haul flights and reduce the pressure on John Wayne.
-9- •
Newport could trade its support for the opening of John Wayne
to other carriers for FAA support on the noise issue. Indeed
the FAA could even avoid a rulemaking and condition its funding
of a runway improvement plan or the renewal of the airport's
certificate on the maintenance of the 40 flight per day limit
or similar restrictions which prevent any increase in the noise
footprint around John Wayne, as part of a settlement of the
current disagreement as discussed above.
A forthcoming proposed rulemaking on noise control for
National Airport (which is operated by the FAA) appears to
indicate that the FAA favors reasonable noise limits as long
as all carriers have access to the limited number of flights
permitted or other measures are taken to assure the maximum
number of flights possible within specified noise limits. Indeed
Newport might want to attempt to intervene in the National
Airport rulemaking to have it expanded to all airpots. It is
our belief that the result would be appealing to Newport.
The statute empowering the FAA to make noise reduction
rules also provides that if the EPA suggests a rule to the FAA,
the FAA must hold hearings on the proposed rule and adopt it
or issue a detailed explanation why it refuses to adopt the
proposed rule. If the FAA refuses to adopt an EPA proposed
rule, the EPA can require even more detailed responses to par-
ticular concerns raised by the EPA including the filing of
an EIS by the FAA. Thus obtaining EPA backing for a proposed
noise rulemaking would make the FAA hold hearings and improve
the chances of adoption of a reasonable rule.
To suceed administratively as well as on the legislative
front (discussed below), the City should seek out other similarly
situated cities and citizens groups that oppose increases in
noise in the vicinities of their local airports. The Mayor's
proposed California coalition on this problem is a step in the
,
-10-
0
right direction. No agency is likely to adopt a special rule
for the benefit of an extremely small group of citizens. Before
seeking a federal solution, the City should show that a number
of small cities are threatened with expansion of formerly
satellite airports. If any of these cities, like Newport, are
not proprietors of the airports, then all can assert the need
for federal regulation since they cannot control noise through
local ordinances which have been found unconstitutional.
C. Federal Legislative Remedies
If Newport commences a rulemaking which appears not
to be succeeding but obtains the broadly based support discussed
above, the City can then attempt to persuade Congress that this
is a nationwide problem requiring a legislative solution and
can seek a bill imposing the same requirements as would have
been contained in the rule outlined above. Lack of progress
with the regulators will help to prove that Congressional action
is needed. Letters from Congressmen expressing their concern
over the problem of increased noise in their communities will
help convince the FAA of the seriousness of the problem and may
influence the FAA to pass a rule before Congress passes a bill
that will remove the FAA's discretion.
SUMMARY
In summary, we would be happy to assist the City Attorney
in forcing the CAB to file an EIS on the effects of certifying
four new carriers for John Wayne, should the Council deem such
delaying tactic to be prudent; in intervening in the Air
California suit against the FAA's informal threats; in facilitating
a settlement between Orange County and the FAA which would
allow new entrants to serve John Wayne but preserve the rest of
the existing noise restrictions; in petitioning the FAA for
a rulemaking that would effectively preserve the current noise
limitations at John Wayne; and in seeking to have Congress pass a
bill that would have the same effect as the proposed rule.
4WY
RESOLUTION NO. 9787
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING AN AGREEMENT FOR
LEGAL SERVICES WITH DYKEMA, GOSSETT, SPENCER,
GOODNOW AND TRIGG
WHEREAS, the City of Newport Beach is directly and
adversely affected by proposed growth or expansion of John
Wayne Airport; and
WHEREAS, many of the activities which will control
the growth and expansion of John Wayne Airport are occurring
at the federal level in Washington, D. C.; and
WHEREAS, a proposal has been submitted by Dykema,
Gossett, Spencer, Goodnow & Trigg to provide legal services
assisting the City in attempting to control the growth and.
expansion of John Wayne Airport; and
WHEREAS, it is in the best interest of the City to
accept said proposal to employ the law firm of Dykema, Gossett,
Spencer, Goodnow & Trigg to perform legal services on behalf of
the City in relationship to controlling the growth and expansion
of John Wayne Airport,
NOW, THEREFORE, BE IT RESOLVED that the proposal for
legal services from Dykema, Gossett, Spencer, Goodnow & Trigg
is accepted, and the Mayor and City Clerk are hereby authorized
and directed to execute the appropriate letter agreement
accepting said services.
ATTEST:
City Clerk
ADOPTED this 27th day of May, 1980.
Mayor
HRC /kv
5/28/80
0•
CITY OF NEWPORT BEACH
Office of
CITY ATTORNEY
To: The Honorable Mayor and
Members of City Council
From: City Attorney
0
May 27, 1980
Item No. H -2(g)
Subject: Agreement for Employment of Dykema, Gossett,
Spencer, Goodnow & Trigg for Legal Services
Regarding Expansion of John Wayne Airport
Attached to this memorandum are a Proposal for Opposition to
Increased Noise at John Wayne Airport received by this office
on May 12 and a proposal letter dated May 21, 1980, from
Dykema, Gossett, Spencer, Goodnow & Trigg. This is the law
firm reported to the City Council at its Executive Session held
on May 12, 1980.
It is recommended that the City Council approve entering into
the agreement with Dykema, Gossett, Spencer, Goodnow & Trigg
for legal services regarding controlling the expansion of John
Wayne Airport. The law firm will be providing monthly state-
ments to the City not to exceed $2,500.00. Any work done for
the City will be at the direct behest of the City and we will
retain tight control over the areas in which they are repre-
senting the City.
It is the opinion of this office and the Mayor that this firm
can provide the City with top -rate legal representation in the
federal forums where the airport activity is presently being
pursued. The law firm is very interested in representing the
City and we feel it can do an outstanding job representing the
City's interests.
Attachments (2)
NOR1bA CIMIXIt
DYKEMA. GoaSBTT, SpENcBR, GOODNOW & TRmo
1276 INTCwNATrOUAL SOU1a11C BUILOINC
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TCLRE: 27 -0121 CA9L910TRC- OLIROIT
may 211 1980
Hugh R. Coffin, Esq.
City of.Newport Beach
3300 Newport Boulevard
Tdewport Beach, California 92663
Dear mr. Coffin:
Earlier this month we submitted to you a proposal for
opposition to increased noise at John Wayne Airport. In sub -
nque nt cancTeraationa.we have agreed is eertain modifications
of the proposal and to a general timetable for proceeding.
in addition, we have.had discussions in respect of
financial arrangements in respect of such opposition and you
have asked us to memorialise these discussions in a form suit-
able for submission'to,the City Council for comment or approval.
This letter'is in response to that request.
our clients are billed on a monthly basis. Detailed
statements show who performed work, when, what was performed,
and hots much time was devoted, to-the effort - = "in short, all
the information needed for you to monitor the reasonableness
of charges. Since we would report directly to you and receive
our instructions from you, you will be in a position easily to
analyze monthly statements.
Mule I will have principal responsibility.for.assist-
ing you, I will be supervised by lawyers senior to myself.
Further, from time to time there will be work which can be
done in a more cost effective w b attorneiirs whose hourly
:ossasny race may ne greater or f4sUr than my own.
Each attorney's billing rate is reviewed at least
annually and sometimes is adjusted upward or downward. The
firm's rates range from $28.00 per hour to,$153.00 per.hour.
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DYHRMA. GvsaETT, SPExcen, OoouxOH & Tptleo
Hugh R. Coffin, Esq.
May 21, 1980
Page Two
Illy own time is billed at $7$.00 per hour.. Travel time is
billed if it interferes with the work da,=, the liw4yer cannot
reasonably be expected to do productive work during the trip
and, of course, the trip is made at the client's request.
We anticipate, based upon our understanding of the,
level of effort to be desired and appropriate, that our charges
will approximate $2,500 per month on average. However, indi-
vidual months will vary greatly.
Should we become involved on your behalf in a national
ruleraking proceeding (other than submitting.comments in an
ongoing proceeding initiated by others?., the level of effort
required for effective participation would be much greater
than $2,500 per month on average. However, truly effective -
participation would speak for other cities similarly situated
joining in the effort, thus greatly reducing the financial
burden.
NCfsc
We look forward with pleasure to working with you.
sincerely,
Norton Cutler .