Class "B" Intervenors
GERALD A. SILVER, Class Representative
HOMEOWNERS OF ENCINO
(dba Stop the Noise!)
P. O. BOX 260205
ENCINO, CA 91426-0205
In Pro Per for Petitioners
BEFORE THE DEPARTMENT OF TRANSPORTATION STATE OF CALIFORNIA
In the Matter of the
)
Case No. OAH No. L-1998040119
Application of CITY OF LOS ANGELES, :DEPARTMENT OF AIRPORTS (VAN NUYS)
Respondent.
CLASS "B" INTERVENORS
)
RESPONSE TO EX PARTE )
COMMUNICATION OF JON RODGERS
Pre-Hearing 10-26-1998
) Time: 10:00 a.m. Place: Airtel Plaza Hotel
) Mullholland Room
COMES NOW Class "B" Interveners by and through its elected representative to respond to the ex parte communication received October 13, 1998, by Judge H. Stuart Waxman from Jon Rodgers, President of National Air Transportation Oversight Commission.
Mr Rodgers' ex parte communication should be rejected as it is nothing more than an attempt to introduce non-issues and plainly unmeritorious arguments by a person with no valid interest in this case. Indeed, by forwarding his ex parte communication at the eleventh hour without bothering to seek Intervenor status in this action (which every other party--was required to do), Mr. Rodgers apparently hopes that the last minute submission of his opinion will somehow disguise the absurdity and inappropriateness of his arguments.
JON RODGERS, PRESIDENT OF NATIONAL AIR TRANSPORTATION OVERSIGHT COMMISSION LACKS STANDING IN THIS MATTER.
Most obviously, the Court should not countenance Mr. Rodgers' decision to bypass the normal legal procedures established
to address his concerns, and permit Mr. Rodgers to submit an exrparte communication to the Court in an action in which Mr. Rodgers is without standing to participate.
Despite the fact that every other intervenor in this action was required to seek intervenor status by the May 15, 1998, deadline established by the Court, and to live within three (3) miles of the Van Nuys Airport 65 CNEL noise contour, Mr. Rodgers chose to ignore the Court mandated procedural protections. He did not ever seek intervenor status, nor did he show he was ever qualified to obtain it; he does not even live within three (3) miles of the Van Nuys Airport 65 CNEL noise contour.
Mr. Rodgers further disregarded the Court's requirement that the parties to the proceedings adhere to the Administrative Procedure Act (APA), and Regulations relating to general APA hearing procedures by filing an ex parte communication. Mr. Rodgers' decision to forego compliance with the Court's May 15, 1998, deadline has severely prejudiced the Class "B"
Interveners. We were required to expend substantial time and our limited economic resources in demonstrating in a timely fashion that we were properly entitled to intervenor status here, and indeed, interested parties, such as Mr. Carl Davidson were denied intervenor status because he did not seek intervention by May 15, 1998.
By simply forwarding his ex parte communication to the Court, Mr. Rodgers, on the other hand, assumes that he alone is above complying with the Court's mandates; that he is not bound by deadlines which excluded other proposed interveners; and he need not incur the economic and litigation costs which all other parties had to absorb.
Mr. Rodgers' ex parte actions are particularly improper in light of the fact that he has another, fully sufficient remedy available to him to address his concerns. Mr. Rodgers should submit his comments to the representative of Class "C" Interveners. The Class "C" Interveners should present any of Mr. Rodgers' contentions which are valid and relevant, to the Court at the appropriate time.
Accordingly, Mr. Rodgers' ex parte communications should be rejected based upon these grounds alone. Any other determination would permit Mr. Rodgers to make a mockery of the administrative process.
MATTERS TO BE PLACED BEFORE COURT ARE IN FACT WITHIN THE JURISDICTION OF CALIFORNIA COURTS
Indeed, even if the Court were to determine that Mr. Rodgers decision to ignore the procedural limitations which bind all other parties in this action, should be somehow overlooked, an examination of the contents of Mr. Rodgers' ex parte communication highlights the inappropriateness of his comments.
Mr. Rodgers asserts that the parties to the variance are "attempting to use the variance hearing process, to seek enforcement of City of Los Angeles Ordinance No. 155,727 (Van Nuys Noise Abatement & Curfew Regulation) and/or, to enact new ordinances, etc., to attempt further restrictions on airport access, as a condition of a granted variance.
We ask that the Court take notice of the fact that the Class "B" Intervenors have not as yet filed pleadings defining the issues, nor have they as yet made such requests as proposed by Mr. Rodgers. However, the Class "B" Intervenors reserve the right to put forth enforcement issues, and additional ordinances, if they properly address the reduction of the 65 CNEL noise contour.
Mr. Rodgers' ex parte communication asserts that the "right of civil aircraft to use the Van Nuys Airport with the noise inherent with such use, was guaranteed by Federal contracts, long before the enactment of Los Angeles Ordinance No. 155,727."
This is an absurd position and fails to recognize the clearly defined proprietor rights granted airports expressly to control noise.
Mr. Rodgers brought his assertions to both the FAA and the Los Angeles Department of Airport (LADOA), and were found to be without merit.
On July 11, 1996, a letter was sent to Mr. Rodgers by Mr. Breton Lobner, Senior Assistant City Attorney for LADOA. This letter addresses the issue of the noise ordinance at VNY and its validity. [Exhibit 1]. It is clear from the letter that the LADOA had reviewed the provisions of FAR Part 161 and the Airport Noise and Capacity Act of 1990. The letter stated that "We find nothing within the text of either that prohibits the City of Los Angeles from enforcing its 1981 Noise Ordinance ... In conclusion, we are confident that the City's actions are legal, and in compliance with all federal laws."
On January 9, 1998 Mr. Rodgers was sent a letter by the FAA,
addressing his concerns about airport compliance with Federal regulations. [Exhibit 2]. To our knowledge the FAA has not directed the LADOA to modify its enforcement of the very regulation that Mr. Rodgers claims is in contravention to Federal contracts.
THE PROPRIETOR EXCEPTION GIVES LADOA THE RIGHT TO EXERCISE CONTROL OVER LOCAL NOISE ISSUES
We would now like to address the issue of LADOA's proprietor rights and the ability of State and local agencies to control airport noise.
Mr. Rodgers contends that the conditions imposed under Ordinance 155,727 are defective because they are preempted by federal law. This issue is nowhere dealt with more clearly than in the Second Circuit Court opinion in National Helicopter Corp. of America v. The City of New York, et. al, 137 F3d 81. We quote extensively from that decision:
"The Supremacy Clause of the United States Constitution invalidates state and local laws that "interfere with or are contrary to, the laws of congress." Chicago & N. W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981) (quoting Gibbons v. Ogden, 9 Wheat. 1, 211 (1824)). Congress preempted state and local regulations "related to a price, route or service of an air carrier" when it passed Sec. 1305(a) of the Airline Deregulation Act, now recodified at 49 U.S.C. Sec. 41713(b)(l) (1994). Cf id. Sec. 40101, et seq. (1994) (Federal Aviation Act); id. Sec. 44715(1994) (Noise Control Act); id. Sec. 47521, et seq. (1994) (Airport Noise and Capacity Act) (acts implying preemption of noise regulation at airports).
In enacting the aviation legislation, Congress stated that the preemptive effect of Sec. 1305(a) did not extend to acts passed by state and local agencies in the course of "carrying out [their] proprietary powers and rights." Id. Sec. 41713(b)(3). Under this "cooperative scheme," Congress has consciously delegated to state and municipal proprietors the authority to adopt rational regulations with respect to the permissible level of noise created by aircraft using their airports in order to protect the local population. See Concorde 1, 558 F.2d at 83-84 (discussing the 1968 amendment to Federal Aviation Act and Noise Control Act legislative history in which Congress specifically reserved the rights of proprietors to establish regulations limiting the permissible level of noise at their airports); S. Rep. No. 96-52, at 13 (1980), reprinted in 1980 U.S.C.C.A.N. 89, 101 (pro claiming that the Aviation Safety and Noise Abatement Act was not "intended to alter the respective legal responsibilities of the Federal Government and local airport proprietors for the control of aviation noise"); cf. City of Bur bank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 635 36 n.14 (1973) (acknowledging that while the federal government has "full control over aircraft noise, pre-empting state and local control" under their police power, the "authority that a municipality may have as a landlord is not necessarily congruent with its police power").
Hence, federal courts have recognized federal preemption over the regulation of aircraft and airspace, subject to a complementary though more "limited role for local airport proprietors in regulating noise levels at their airports." City and County of San Francisco v. F.A.A., 942 F.2d 1391, 1394 (9th Cir. 1991). Under this plan of divided authority, we have held that the proprietor exception allows municipalities to promulgate "reasonable, non arbitrary and non discriminatory" regulations of noise and other environmental concerns at the local level. Concorde 1, 558 F.2d at 84 (regulations of noise levels); see also Western Air Lines, Inc. v. Port Auth. of N. Y and N.J., 658 F. Supp. 952, 957 (S.D.N.Y. 1986) (permissible regulations of noise and other environmental concerns), aff'd, 817 F.2d 222 (2d Cir. 1987)." (emphasis added)
4.FEDERAL AVIATION LAWS DO NOT PREEMPT CALTRANS FROM IMPOSING MEANINGFUL CONDITIONS ON THE AIRPORT AUTHORITY'S NOISE VARIANCE
Mr. Rodgers argues that the preemptive effect of federal laws and regulations places severe limits on the power of Cal Trans to regulate noise at the VNY. He hopes to create the impression that noise control is an entirely federal concern and that there is effectively nothing that CalTrans or the LADOA Authority can do to control noise at the VNY.
This is simply not true. Although the FAA exercises considerable control over many aspects of aviation, regulation of airport noise is an area of shared responsibility between the FAA, airport proprietors and state and local governments. The FAA recently reiterated this policy:
"Concerning your question about who is responsible for noise mitigation, aircraft noise is a multidimensional problem involving shared responsibilities. The FAA has the authority to abate aircraft noise through various means such as revising flight operational procedures and managing the air traffic control system and areas, consistent with the highest standards of safety.
As to your navigable airspace in ways that minimize impact on residential question about whether the airport only handles noise mitigation within a five-mile radius of the airport, state and local law determines the extent to which the airport proprietor is responsible. State and local governments ultimately determine at what level various noise exposure levels are compatible with residential land uses.
In recent years, the FAA has been increasingly willing to consider changes in air traffic routes and procedures to minimize noise impacts for residents of communities surrounding airports in guidelines and are outside the airport proprietor's legal area of locations already meeting federal lands use compatibility interest. In these cases, the changes must reflect local consensus and be consistent with safety and efficient use of the navigable airspace." (FAA Aviation Noise Ombudsman Activity Report at 2 (Feb. 11, 1998)).
This shared responsibility and authority is reflected in the FAA's regulations in Part 150 and Part 161. Careful analysis of these regulations shows that (1) federal law does not prevent the LADOA from adopting noise abatement measures, some without FAA approval, and (2) that a Part 150 study does not preempt the requirement of the California Airport Noise Regulations that the LADOA implement a plan to reduce the noise impact area
5. THE AIRPORT NOISE AND CAPACITY ACT OF 1990 AND PART 161
After the Supreme Court's decision in City of Burbank v. Lockheed Air Terminal. Inc., 93 S.Ct. 1854 (1973), courts recognized that, although non-proprietors were prohibited from regulating noise at airports if the noise regulation affected the flight of aircraft, airport proprietors were not preempted from doing so. Compare Santa Monica Airport Ass'n v. City of Santa Monica, 659 F. Supp. 100 (C.D. Gal. 1981) (affirming power of proprietor to impose a curfew) with San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306 (9th Cir 1980) (striking down curfew imposed by a non-proprietor).
With the passage of the Airport Noise and Capacity Act of 1990, 49 U;S.C. Sec. 47521 - 47533 (1997) ("ANCA") and its implementing regulations, 14 C.F.R. Sec. 161.1 - .505 (1996) ("Part 161"), Congress limited (but did not eliminate) the scope of an airport proprietor's power to adopt certain noise rules. Under ANCA, FAA approval is required only for "noise and access restrictions" that affect Stage 3 aircraft." 49 U.S.C. Sec. 47524(c)(2); 14 C.F.R. Sec. 161.301 -.305. Although the requirement of FAA approval limits a proprietor's power to impose such restrictions, the FAA could, of course, approve restrictions on Stage 3 aircraft at the request of the airport proprietor.
But that is the only situation in which the FAA must approve a noise or access restriction. An airport proprietor may approve noise and access restrictions on Stage 2 aircraft, after following certain notice and comment procedures, without obtaining FAA approval. 49 U.S.C.Sec. 47524(b); 14 C.F.R. Sec. 161.201-.213. ANCA leaves the imposition of Stage 2 restrictions in the sole discretion of the airport proprietor.
Similarly, ANCA expressly permits an airport proprietor and airlines to agree to adopt Stage 3 or Stage 2 restriction without FAA approval. 14 C.F.R. Sec. 161.107. (The phrase "noise or access restriction" is defined broadly to include almost any noise restriction that directly or indirectly affects Stage 2 or Stage 3 aircraft. 14 C.F.R. Sec. 161.5 (1996)
ANCA does not regulate all operational procedures that might be employed to control noise, however. Operational procedures that do not limit the number of operations, such as night tracks, noise abatement approach and departure procedures and profiles and taxiing and engine run-up procedures, are expressly excluded from ANCA's review and approval procedures. Id. at Sec. 161.7(a).
Under examination, Federal law does not possess the preemptive force that Mr. Rodgers implies. Indeed, aside from imposing new procedural requirements, the only noise and access restrictions that now require FAA approval are noise and access restrictions affecting Stage 3 aircraft that have not been agreed to by the operators. FAA approval is not required for the following noise control mechanisms that affect the flight of aircraft:
- Noise or access restrictions on Stage 2 aircraft.
- Consensual noise or access restrictions on Stage 3 aircraft.
- Noise abatement departure procedures.
6.CONCLUSION
Class "B" Intervenors believe that Mr. Rodgers' claims are unfounded, lack legal support and were presented through an inappropriate channel. Accordingly his ex parte communication which demonstrates a lack of respect for the established administrative process should be rejected.
Dated: October 26, 1998
Class "B" Intervenors
Gerald A. Silver, President Homeowners of Encino
Return to Home Page