Friends of the East Hampton Airport, Inc. et al v. The Town of East Hampton

Filing 64

MEMORANDUM & ORDER re: 19 Plaintiffs' Motion for preliminary injunction enjoining enforcement of the Town Laws is GRANTED IN PART and DENIED IN PART. It is GRANTED with respect to the One-Trip Limit and is DENIED with respect to the Mandatory Curfew and with respect to 14 Plaintiffs' Motion to Consolidate Cases the Court RESERVES JUDGMENT pending the filing of the FAA's response to the Complaint in the FAA Action. Ordered by Judge Joanna Seybert on 6/26/2015. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
FRIENDS OF THE EAST HAMPTON
AIRPORT, INC.; ANALAR CORPORATION;
ASSOCIATED AIRCRAFT GROUP, INC.;
ELEVENTH STREET AVIATION, LLC;
HELICOPTER ASSOCIATION
INTERNATIONAL, INC.; HELIFLITE
SHARES, LLC; LIBERTY HELICOPTERS,
INC.; SOUND AIRCRAFT SERVICES,
INC.; and NATIONAL BUSINESS
AVIATION ASSOCIATION, INC.,

MEMORANDUM & ORDER
15-CV-2246(JS)(ARL)

Plaintiffs,
-againstTHE TOWN OF EAST HAMPTON,
Defendant.
-----------------------------------X
APPEARANCES
For Plaintiffs:
Matthew Gage Coogan, Esq.
Jonathan Daniel Lamberti, Esq.
Michael Dayton Longyear, Esq.
Lisa R. Zornberg, Esq.
Lankler Siffert & Wohl LLP
500 Fifth Avenue, 34th Floor
New York, NY 10110
For Defendant:

Peter Kirsch, Esq.
William E. Pilsk, Esq.
Kaplan Kirsch & Rockwell
1675 Broadway, Suite 2300
Denver, CO 80202
Eric Bregman, Esq.
Farrell Fritz PC
50 Station Road
Water Mill, NY 11976

SEYBERT, District Judge:
Plaintiffs,

a

group

of

airport

users

and

aviation

companies that frequently use the East Hampton Airport, bring this

action against the Town of East Hampton, seeking declaratory and
injunctive relief enjoining enforcement of Sections 75-38 and 7539 of the Town of East Hampton Code, recently adopted town laws
that impose access restrictions to the East Hampton Airport (the
“Town Laws”).

Plaintiffs argue that the Town Laws are invalid

because: (1) they are preempted by federal statutes governing
aviation and therefore violate the Supremacy Clause of the United
States Constitution, U.S. CONST. art. VI, cl. 2; and (2) they
constitute

an

unlawful

restraint

on

interstate

commerce

in

violation of the Commerce Clause of the United States Constitution,
U.S. CONST. art. I, § 8, cl. 3.
Presently before the Court are: (1) Plaintiffs’ motion
for a preliminary injunction enjoining enforcement of the Town
Laws pending resolution of this action and a related action against
the Federal Aviation Administration (“FAA”), Friends of the East
Hampton Airport, Inc., et al. v. F.A.A., et al., No. 15-CV-0441
(E.D.N.Y.)

(the

“FAA

Action”),

(Docket

Entry

19);

and

(2) Plaintiffs’ letter motion to consolidate this action and the
FAA Action for all purposes pursuant to Federal Rule of Civil
Procedure 42, (Docket Entry 14).

For the following reasons,

Plaintiffs’ motion for a preliminary injunction is GRANTED IN PART
and DENIED IN PART, and the Court RESERVES JUDGMENT on Plaintiffs’
motion to consolidate pending the filing of the FAA’s response to
the Complaint in the FAA Action.
2

BACKGROUND1
I.

The Parties
Plaintiffs represent a wide spectrum of airport users

and aviation companies that frequently use the East Hampton Airport
(the “Airport”).

Plaintiff Friends of the East Hampton Airport,

Inc. (“FOEHA”) is a nonprofit corporation that “represents the
interests of those who seek to keep the Airport open to all types,
kinds, and classes of aircraft activities and flying services.”
(Compl.

¶

12.)

Plaintiffs

Analar

Corporation

(“Analar”),

Associated Aircraft Group, Inc. (“AAG”), HeliFlite Shares LLC
(“HeliFlite”), and Liberty Helicopters, Inc. (“Liberty”) are air
carriers

that

are

federally

authorized

to

provide

helicopter

charter services to clients throughout the East Coast.
¶¶ 13-14, 17-18.)

(Compl.

In addition to providing charter services, AAG

and HeliFlite manage “fractional aircraft ownership program[s],”
which involve selling partial ownership or leasehold interests of
a helicopter to private individuals who wish to operate their own
helicopter using AAG and HeliFlite as managers.
17.)

(Compl. ¶¶ 14,

Plaintiff Eleventh Street Aviation LLC (“Eleventh Street”)

is an air carrier that is federally authorized to operate aircraft

The following facts are drawn from the Complaint in this action
and the parties’ affidavits and evidence submitted in connection
with Plaintiffs’ motion for a preliminary injunction. Any
factual disputes will be noted.
1

3

for private use.

(Compl. ¶ 15.)

Plaintiff Helicopter Association

International, Inc. (“HAI”) is a Delaware “trade association that
represents and serves the interests of helicopter operators around
the world.”

(Compl. ¶ 16.)

According to the Complaint, HAI’s

“members include one or more providers of helicopter services” at
the Airport.

(Compl. ¶ 16.)

Plaintiff Sound Aircraft Services,

Inc. (“Sound”) is a fixed-base operator at the Airport.
¶ 19.)

(Compl.

Sound leases property at the Airport from the Town of East

Hampton and provides fuel and other on-site services to aircraft
and passengers that use the Airport.

(Compl. ¶ 19.)

Defendant the Town of East Hampton (the “Town”) is the
easternmost town on Long Island, New York, situated approximately
100 miles east of New York City.
community during the summer.

It is a popular seaside resort
The Town owns and operates the

Airport, a public-use airport located in the Town.
II.

The Town Laws
For years, Town residents have opposed development of

the Airport and have complained about aircraft noise.
Cantwell Decl., Docket Entry 38-1, ¶¶ 8-10.)

(See

In recent years, the

complaints have escalated due to a marked increase in helicopter
operations at the Airport, many of which are private charter
flights taken by individuals traveling from New York City to the

4

East End of Long Island.2

(See Cantwell Decl. ¶ 11; MacNiven

Decl., Docket Entry 38-4; Saltoun Decl., Docket Entry 38-5.)

To

alleviate this perceived noise problem, on April 16, 2015, the
Town adopted Sections 75-38 and 75-39 of the Town of East Hampton
Code, local laws imposing three access restrictions to the Airport.
See Town of E. Hampton Res. 2015-411, 2015-412, 2015-413, to be
codified at TOWN

OF

E. HAMPTON CODE §§ 75-38, 75-39.3

The access

restrictions are as follows: (1) a mandatory curfew prohibiting
all aircraft from using the Airport between 11:00 p.m. and 7:00
a.m. (the “Mandatory Curfew”); (2) an extended curfew prohibiting
“Noisy Aircraft” from using the Airport from 8:00 p.m. to 9:00
a.m. (the “Extended Curfew”); and (3) a weekly limit prohibiting
“Noisy Aircraft” from using the Airport4 more than two times per
week during the “Season”--i.e., the months of May, June, July,

According to the Town, helicopter traffic increased by fifty
percent last year. (See Cantwell Decl. ¶ 11.) On the busiest
day last year, July 25, 2014, there were 353 operations at the
Airport. (See Cantwell Decl. ¶ 11.) Forty-four operations
occurred between 2:00 p.m. and 3:00 p.m. that day. (See
Cantwell Decl. ¶ 11.) The first operation occurred at 3:04
a.m.; the last operation occurred at 11:08 p.m. (See Cantwell
Decl. ¶ 11.)
2

The full text of the Resolutions adopting the Town Laws may be
found at http://easthamptontown.iqm2.com/citizens/Default.aspx.
3

The Town Laws define “Use of the Airport” in relevant part as
“either one arrival (landing) at, or one departure (takeoff)
from, the Airport.” TOWN OF E. HAMPTON CODE § 75-38(A)(6).
4

5

August, and September5 (the “One-Trip Limit”). See TOWN
CODE § 75-38(B)-(C).

OF

E. HAMPTON

“Noisy Aircraft” is defined as “any airplane

or rotorcraft for which there is a published Effective Perceived
Noise in Decibels (EPNdb) approach (AP) level of 91.0 or greater.”
TOWN

OF

E. HAMPTON CODE § 75-38(A)(4)(a).
Violations of the Town Laws are deemed criminal offenses

punishable by a sliding scale of monetary fines for the first three
violations--$1,000;

$4,000;

and

$10,000,

respectively--and

prohibition from the Airport for a period of up to two years for
a fourth violation.
the

Town

Laws,

See TOWN

the

Town

OF

E. HAMPTON CODE § 75-39(B).

may

also

seek

court

Under

injunctions,

restraining orders, and monetary fines against any person or entity
with an ownership interest in a violating aircraft.

See TOWN

OF

E.

HAMPTON CODE § 75-39(E).
Plaintiffs

seek

a

preliminary

injunction

enjoining

enforcement of the Town Laws on the ground that they violate, and
are therefore preempted by: (1) the Airport and Airway Improvement
Act of 1982 (“AAIA”), 49 U.S.C. § 47101, et seq., which governs
the process through which airport proprietors can obtain federal
funding for the planning and development of public-use airports;

The original version of the Town Laws did not include a
definition for the term “Season.” However, the Town Board later
adopted a definition at a Town Board meeting on May 7, 2015.
See Town of E. Hampton Res. 2015-569.
5

6

and (2) the Airport Noise and Capacity Act of 1990 (“ANCA”), 49
U.S.C.

§

47521,

et

seq.,

which

governs

the

manner

in

which

individual airports may adopt noise and access restrictions on
certain types of aircraft.

Some of the Plaintiffs claim that they

will be irreparably harmed by the Town Laws because compliance
will cause incalculable damages and severe economic losses that
“threaten[s] [their] continued existence.”
Entry 32, at 8.)

(Pls.’ Br., Docket

The Town responds, inter alia, that neither

federal statute preempts the Town Laws and that the adoption and
enforcement of the Town Laws constitutes a valid exercise of its
proprietary rights in the Airport.
III. Relevant Airport History
The last twenty-four years of the Airport’s history are
marked by several key events, disputes, and agreements.

From 1983

to 2001, the Town received several federal grants for airport
development

under

(Compl. ¶ 60.)

the

Airport

Improvement

Program

(“AIP”).

The AIP, which was authorized by Congress when it

enacted the AAIA, is the nation’s current federal grant program
for

airport

development.

Transportation,

through

Under
the

the

Federal

AIP,

the

Aviation

Secretary

of

Administration

(“FAA”), provides monetary grants to public agencies and airport
proprietors

for

the

planning

and

airports.

7

development

of

public-use

Under

the

AAIA,

the

Secretary

may

approve

a

grant

application only if the airport proprietor agrees to certain
written assurances regarding airport operations, which are set
forth in Section 47107(a) of the AAIA.

See 49 U.S.C. § 47107(a).

The Secretary is responsible for ensuring compliance with these
assurances, see 49 U.S.C. § 47107(g), and is authorized to approve
grant applications only if the airport proprietor’s assurances are
“satisfactory

to

the

Secretary,”

49

U.S.C.

§

47107(a).

Accordingly, the Secretary, through the FAA, has promulgated a
more thorough set of standardized grant assurances with which a
recipient of AIP funding must comply (the “Grant Assurances”).
(See Compl. Ex. A.)
“Upon acceptance of an AIP grant, the grant assurances
become

a

binding

contractual

obligation

sponsor and the Federal government.”

between

the

airport

Pac. Coast Flyers, Inc. v.

Cnty. of San Diego, FAA Docket No. 16-04-08, 2005 WL 1900515, at
*11 (July 25, 2005).

Under the terms of the Grant Assurances,

each Grant Assurance remains in full effect for twenty years from
the date the airport proprietor accepts federal funds, with the
exception of Grant Assurances 23 and 25, which remain in effect as
long as the airport operates as an airport.

(Compl. Ex. A at 366.)

Page numbers of the exhibits to the Complaint in this action
referenced herein refer to the page numbers generated by the
Electronic Case Filing system.
6

8

The Town last accepted an AIP grant in 2001 in the amount
of $1,410,000 for rehabilitation of the Airport’s terminal apron.
(Compl. ¶ 61.)

Shortly thereafter, the Committee to Stop Airport

Expansion (the “Committee”), an unincorporated association of
residents

living

near

the

Airport,

commenced

several

legal

proceedings in an attempt to halt development of the Airport.

In

2003,

of

the

Committee

sued

the

FAA

and

the

Department

Transportation in this District, challenging the legality of AIP
grants to the Town dating back to 1994 (the “Committee Action”).
See Comm. to Stop Airport Expansion, et al. v. Dep’t of Transp.,
et al., No. 03-CV-2634.

In short, the Committee alleged that the

Airport’s prior AIP grants were improper because the FAA approved
them in the absence of a current airport layout plan, which the
AAIA requires before the FAA may award an AIP grant.

(See Comm.

Action Compl. ¶¶ 89-96 (citing 49 U.S.C. § 47107(a)(16) (“The
Secretary

of

Transportation

may

approve

a

project

grant

application under [the AAIA] only if the Secretary receives written
assurances, satisfactory to the Secretary, that . . . the airport
owner or operator will maintain a current layout plan of the
airport . . . .”).)

According to the Committee, the Airport’s

2001 layout plan, which the FAA approved, was not current because
several projects undertaken at the Airport since 1989 were not
reflected in the 2001 layout plan. (See Comm. Action Compl. ¶¶ 9394.)

The Committee Action sought to vacate the 2001 layout plan
9

and to enjoin the award of any additional AIP grants so long as
the Town lacked a current and valid airport layout plan.

(See

Comm. Action Compl. ¶¶ 52, 57-88.)
In 2005, the Committee and the United States Government
executed a settlement agreement resolving the Committee Action, as
well as other actions the Committee commenced in other forums (the
“2005 Settlement Agreement”).
Ex. 3.)

(Pilsk Decl., Docket Entry 38-6,

Under Paragraph 7 of the 2005 Settlement Agreement, the

FAA agreed that, with respect to the Airport, Grant Assurance 22(a)
(and three other grant assurances not relevant to this case)
“[would] not be enforced [by the FAA] beyond December 31, 2014.”
(Pilsk Decl. Ex. 3 ¶ 7.) Grant Assurance 22(a), entitled “Economic
Nondiscrimination,” states:

“[The airport sponsor] will make the

airport available as an airport for public use on reasonable terms
and without unjust discrimination to all types, kinds and classes
of

aeronautical

activities

activities,

offering

services

including
to

the

commercial
public

at

aeronautical
the

airport.”

(Compl. Ex. A at 45.)
The 2005 Settlement Agreement further provided that,
aside from the four referenced Grant Assurances, “[a]ll other grant
assurances with respect to any grant awarded to East Hampton
Airport . . . shall be enforced in full.”

(Pilsk Decl. Ex. 3 ¶ 7.)

Finally, the 2005 Settlement Agreement provided that if the Town
was awarded any additional AIP grants after the effective date of
10

the 2005 Settlement Agreement (April 29, 2005), then all Grant
Assurances “shall be enforced in full” in connection with that new
funding.

(Pilsk Decl. Ex. 3 ¶ 7.)
The

Agreement.

Town

was

not

Additionally,

a

party

although

to

this

the

2005

Court

Settlement

so-ordered

the

parties’ stipulation dismissing the Committee Action, the Court
did not so-order the 2005 Settlement Agreement, nor did the
stipulation of dismissal incorporate by reference the terms of the
2005 Settlement Agreement.
In

December

(See Comm. Action, Docket Entry 38.)

2011,

then-U.S.

Representative

Timothy

Bishop (“Bishop”) submitted a list of questions to the FAA probing
the legal effect of the Town’s Grant Assurances on its ability to
enact noise and access regulations at the Airport.
Ex. 2.)

(Pilsk Decl.

The FAA responded in an unsigned writing in 2012 (the

“Bishop Responses”).

(Pilsk Decl. Ex. 1.)

The Bishop Responses

stated that due to the 2005 Settlement Agreement, the FAA would
not,

as

of

December

administrative
complaint

from

grant

31,

2014,

enforcement

aircraft

“initiate
proceeding

operators

.

.

.

or

commence

in

response

or

seek

to

an
a

specific

performance of Grant Assurances 22a, 22h, and 29,” unless and until
the FAA awarded a new AIP grant to the Town.

(Pilsk Decl. Ex. 1

at 1.)
In addition, although the 2005 Settlement Agreement made
no mention of ANCA, the Bishop Responses stated that “[t]he FAA’s
11

agreement not to enforce also mean[t] that unless the town wishe[d]
to remain eligible to receive future grants of Federal funding, it
[was] not required to comply with [ANCA] . . . in proposing new
airport noise and access restrictions.”

(Pilsk Decl. Ex. 1 at 1.)

Congress passed ANCA in 1990, directing the Secretary to
“establish[ ] by regulation a national aviation noise policy” that
(1) “considers . . . the phaseout and nonaddition of stage 2
aircraft,”

49

U.S.C.

§

47523(a),

and

(2)

“establish[es]

by

regulation a national program for reviewing airport noise and
access restrictions on the operation of stage 2 and stage 3
Under Section 47524(b) of ANCA,

aircraft,” 49 U.S.C. § 47524(a).7
an

“airport

noise

or

access

restriction”

may

not

“include

restriction on the operation of stage 2 aircraft” unless and until
the airport operator publishes the proposed restriction and other
information for public comment at least 180 days before the
effective date of the proposed restriction.

49 U.S.C. § 47524(b).

Under Section 47524(c), a restriction affecting a Stage 3 aircraft
is effective only if it “has been agreed to by the airport
proprietor and all aircraft operators” or has been “approved by
the Secretary.”

49 U.S.C. § 47524(c).

Under ANCA, the only

consequences for failing to comply with Section 47524 are that the

The FAA has classified aircraft into “Stages,” according to how
much noise they produce, from “Stage 1” being the noisiest to
“Stage 4” being the quietest. See 14 C.F.R. § 36.1(f).
7

12

airport “may not (1) receive money [under the AAIA]; or (2) impose
a passenger facility charge under [49 U.S.C. § 40117].”

49 U.S.C.

§ 47526.
On January 29, 2015, Plaintiffs FOEHA, Analar, HAI,
HeliFlite, and Liberty filed the FAA Action, principally alleging
that the FAA exceeded its statutory authority and violated its
statutory

obligations

when

it

agreed

in

the

Agreement not to enforce Grant Assurance 22(a).

2005

Settlement

See Friends of

the E. Hampton Airport, Inc., et al. v. F.A.A., et al., No. 15CV-0441

(E.D.N.Y.).

The

FAA

Action

seeks

declaratory

and

injunctive relief that: (1) the FAA is statutorily obligated to
ensure that the Town complies with Grant Assurance 22(a) until
September 2021, i.e., twenty years from the date the Town last
accepted an AIP grant; (2) neither the 2005 Settlement Agreement
nor the FAA’s interpretation of the 2005 Settlement Agreement in
the Bishop Responses can restrain the FAA from carrying out its
statutorily imposed duties under the AAIA to enforce the Grant
Assurances; and (3) the Bishop Responses’ one-sentence statement
about ANCA, i.e., that the Town purportedly need not comply with
ANCA, is contrary to law.

(FAA Action Compl. ¶¶ 82–114, Prayer

for Relief.)8

The Committee has filed a motion to intervene in the FAA
Action, which was fully briefed on June 12, 2015. This motion
will be the subject of a future, separate order.
8

13

By the time the FAA Action was filed, the Town already
began its efforts to enact noise regulations at the Airport.
According to the Town, prior to receiving the Bishop Responses, it
felt constrained by its understanding that Grant Assurance 22(a)
limited its ability to enact noise and access restrictions until
2021. (See Def.’s Opp. Br., Docket Entry 38, at 4; Zornberg Decl.,
Docket Entry 36, Ex. A.)

However, after receiving the FAA’s

statement in the Bishop Responses that it would not enforce Grant
Assurance 22(a) beyond 2014, the Town began exploring ways to
alleviate the perceived noise problem at the Airport.

Over the

course of 2014 and early 2015, the Town reviewed old flight data,
collected new data, commissioned new noise studies, and hired
consultants to assist the Town.

(See Cantwell Decl., Ex. 1.)

On February 27, 2015, Town representatives met with
senior FAA officials to discuss proposed access restrictions.
(Cantwell Decl. ¶ 21.)

They briefed the FAA on the range of noise

controls the Town was considering and expressed that the Town was
relying on the statements in the Bishop Responses that the FAA
would not enforce Grant Assurance 22(a) beyond 2014 and that the
Town need not comply with ANCA.

(Cantwell Decl. ¶ 22.)

On April

16, 2015, following a public hearing, but apparently without the
approval of the FAA, the Town adopted the Town Laws.

14

IV.

Plaintiffs’ Claims and Procedural History
Plaintiffs then commenced this action on April 21, 2015.

As noted, Plaintiffs claim that the Town Laws are preempted by
ANCA

and

the

AAIA

and

constitute

an

unlawful

restraint

interstate commerce in violation of the Commerce Clause.

on

On April

27, 2015, Plaintiffs filed a letter motion to consolidate this
action with the FAA Action for all purposes pursuant to Federal
Rule of Civil Procedure 42.

(Docket Entry 14.)

On April 29, 2015, Plaintiffs filed a motion for a
temporary restraining order enjoining enforcement of the Town Laws
pending resolution of this action and the FAA Action.

(Docket

Entry 19.) On May 18, 2015, the Court held a hearing on Plaintiffs’
motion for a temporary restraining order, during which the Court
and the parties agreed that the Court should construe Plaintiffs’
motion as one for a preliminary injunction.
51.)

(See Docket Entry

The Town agreed to delay enforcement of the Town Laws until

today, June 26, 2015, so that the Court would have sufficient time
to consider the matter.
Plaintiffs’ motion for a preliminary injunction relies
solely on their preemption claims.

They specifically contend that

the Town Laws are preempted by ANCA because the Town did not comply
with ANCA’s procedural requirements for adopting noise and access
restrictions affecting Stage 2 and Stage 3 aircrafts.
¶¶ 72-74.)

(See Compl.

With respect to the AAIA, Plaintiffs contend that the
15

Town Laws are preempted by Section 47107 of the AAIA because the
laws violate three of the Town’s Grant Assurances: (1) Grant
Assurances 19(a), entitled “Operation and Maintenance,” which
states that the airport “shall be operated at all times in a safe
and serviceable condition and in accordance with the minimum
standards as may be required or prescribed by applicable Federal,
state and local agencies for maintenance and operation,” (Compl.
Ex. A. at 44-45); (2) Grant Assurance 22(a), which, as noted above,
requires the airport sponsor to “make the airport available as an
airport for public use on reasonable terms,” (Compl. Ex. A. at
45); and (3) Grant Assurance 23, entitled “Exclusive Rights,” which
prohibits the airport sponsor from permitting any “exclusive right
for the use of the airport by any person,” (Compl. Ex. A at 47.)
DISCUSSION
The Court will first address Plaintiffs’ motion for a
preliminary

injunction

before

turning

to

their

motion

to

consolidate.
I.

Plaintiffs’ Motion for a Preliminary Injunction
A.

Legal Standard
Generally, “[t]o obtain a preliminary injunction, the

moving

party

must

demonstrate

‘(1)

irreparable

harm

absent

injunctive relief; (2) either a likelihood of success on the
merits, or a serious question going to the merits to make them a
fair

ground

for

trial,

with

a
16

balance

of

hardships

tipping

decidedly in the plaintiff’s favor; and (3) that the public’s
interest weighs in favor of granting an injunction.”

Red Earth

LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (quoting
Metro. Taxicab Bd. of Trade v. City of N.Y., 615 F.3d 152, 156 (2d
Cir. 2010)).

However, where, as in this case, “‘the moving party

seeks a preliminary injunction that will affect government action
taken in the public interest pursuant to a statutory or regulatory
scheme, the injunction should be granted only if the moving party
meets the more rigorous likelihood-of-success standard.’”

Metro.

Taxicab Bd., 615 F.3d at 156 (quoting Cnty. of Nassau v. Leavitt,
524 F.3d 408, 414 (2d Cir. 2008)).
Additionally, in this Circuit, a more exacting standard-one

which

requires

the

movant

to

demonstrate

a

“clear”

or

“substantial” likelihood of success on the merits--applies in two
situations.

See Citigroup Glob. Mkts., Inc. v. VCG Special

Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010)
(collecting

cases).

First,

“[a]

heightened

‘substantial

likelihood’ standard” applies where the requested injunction:
“(1) would provide the plaintiff with ‘all the relief that is
sought’ and (2) could not be undone by a judgment favorable to
defendants on the merits at trial.”

Mastrovincenzo v. City of

N.Y., 435 F.3d 78, 90 (2d Cir. 2006) (quoting Tom Doherty Assocs.,
Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34-35 (2d Cir. 1995)).
Second, a “mandatory” injunction, that is, one that “alter[s] the
17

status quo by commanding some positive act,” as opposed to a
“prohibitory” injunction, which “seeks only to maintain the status
quo pending a trial on the merits,” “should issue ‘only upon a
clear showing that the moving party is entitled to the relief
requested, or where extreme or very serious damage will result
from a denial of preliminary relief.’”

Tom Doherty Assocs., 435

F.3d at 34 (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025
(2d Cir. 1985)).
Citing Sussman v. Crawford, 488 F.3d 136 (2d Cir. 2007),
the Town urges the Court to apply the heightened likelihood of
success standard here.

(Def.’s Opp. Br. at 6.)

In Sussman, the

plaintiffs sought to compel the United States Military Academy at
West Point to allow a demonstration during a graduation ceremony.
488 F.3d at 137.

In this case, however, the requested injunction

would prohibit, rather than compel government action, because the
injunction would only enjoin enforcement of the Town Laws.

See

Mastrovincenzo, 435 F.3d at 90 (“On its face, the injunction
clearly

prohibits,

enjoining

the

rather

future

than

compels,

enforcement

of

government
§

20–453

action

by

against

plaintiffs.”); Davis v. Shah, No. 12-CV-6134, 2012 WL 1574944, at
*5 (W.D.N.Y. May 3, 2012) (“[T]he Court views the injunction being
sought as prohibitory, rather than mandatory, since it merely seeks
to restore and maintain the relationship that existed between the
parties prior to the enactment of the challenged statute.”).
18

Additionally,

in

contrast

to

Sussman,

where

an

injunction would have permitted the plaintiffs to hold a large
protest,

thus

rendering

the

dispute

moot

after

entry

of

an

injunction, the requested injunction here would not create a
“particularly drastic or irreversible change in the status quo.”
Mastrovincenzo, 435 F.3d at 90.

Instead, an injunction would

simply restore and maintain the situation that existed prior to
adoption of the Town Laws.

The ultimate question of whether the

Town may impose access restrictions to the Airport could still be
resolved on the merits in the Town’s favor.
an

injunction

did

not

“effect[

]

a

See id. (holding that

particularly

drastic

or

irreversible change in the status quo” because “the ultimate
question of whether New York City [could] impose . . . licensing
requirements

on

vendors

of

clothing

painted

with

graffiti

remain[ed] ripe for resolution on the merits, and the injunction
did

not

irreversibly

affect

the

rights

of

the

parties”).

Accordingly, since the requested injunction is prohibitory and
would merely preserve the status quo, Plaintiffs are not required
to meet the more exacting likelihood of success standard.
B.

Private Enforcement of the AAIA and ANCA
Before addressing the requirements for a preliminary

injunction,

the

Court

first

considers

whether

Plaintiffs

may

proceed against the Town based on the Town’s alleged violations of
ANCA and the AAIA. As noted, Section 47524 of ANCA imposes certain
19

procedural requirements before an airport proprietor can adopt an
“airport noise or access restriction” affecting Stage 2 and Stage
3 aircrafts.

49 U.S.C. § 47524(b), (c).

Under Section 47107(a)

of the AAIA, the Secretary of Transportation, through the FAA, is
authorized to award airport improvement grants, but only if the
airport proprietor provides the Secretary with Grant Assurances
regarding airport operations.

49 U.S.C. § 47107(a).

There is no

dispute that the Town did not comply with ANCA’s procedural
requirements before adopting the Town Laws even though they affect
operations of Stage 2 and Stage 3 aircrafts, and Plaintiffs argue
that the Town Laws violate Grant Assurances 19(a), 22(a), and 23.
The Supremacy Clause of the United States Constitution provides
that federal statutes preempt contrary state and local laws.

See

Nat’l Helicopter Corp. of Am. v. City of N.Y., 137 F.3d 81, 88 (2d
Cir. 1998) (“National Helicopter II”) (“The Supremacy Clause of
the United States Constitution invalidates state and local laws
that ‘interfere with or are contrary to, the laws of congress.’”
(quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450
U.S. 311, 317, 101 S. Ct. 1124, 1130, 67 L. Ed. 2d 258 (1981)).
Accordingly, Plaintiffs seek to enforce the Supremacy Clause by
striking down the Town Laws and giving effect to ANCA’s procedural
requirements and the Town’s Grant Assurances under the AAIA.
The Town urges the Court to deny Plaintiffs’ request for
an injunction on the ground that neither ANCA nor the AAIA creates
20

a private right of action.
12.)

(Def.’s Br., Docket Entry 38 at 11-

That ANCA and the AAIA do not create private rights of action

is beyond dispute. Courts have uniformly held that private parties
have no right to sue in federal court to enforce the provisions of
ANCA or the AAIA.

See, e.g., McCasland v. City of Castroville,

514 F. App’x 446, 448 (5th Cir. 2013) (“As several circuit courts
have held, and as Plaintiffs appear to concede, 49 U.S.C. § 47107
and its predecessor statute do not create a private right of action
for parties aggrieved by alleged discrimination.”); W. Air Lines,
Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 & n.4 (2d
Cir.

1987)

(holding

that

49

U.S.C.

§

2210(a),

the

previous

codification of Section 47107(a), did not create an private right
of action); Northwest Airlines, Inc. v. Kent, Mich., 955 F.2d 1054,
1058-59 (6th Cir. 1992) (same); L-3 Commc’ns Integrated Sys., L.P.
v. City of Greenville, No. 11-CV-2294, 2012 WL 3941766, at *2 (N.D.
Tex. Sept. 5, 2012) (“The AAIA regulations do not provide for a
private

right

of

action

and

therefore

cannot

serve

as

an

independent basis for jurisdiction.”); Horta, LLC v. City of San
Jose, No. 02-CV-4086, 2008 WL 4067441, at *4 (N.D. Cal. Aug. 28,
2008) (suggesting that “Congress did not intend to create a private
right of action for ANCA violations” because “ANCA contains its
own enforcement mechanism, to be administered by the Secretary of
Transportation”);

Airborne

Tactical

Advantage

Co.,

LLC

v.

Peninsula Airport Comm’n, No. 05-CV-0166, 2006 WL 753016, at *1
21

(E.D. Va. Mar. 21, 2006) (“Courts interpreting § 47107 have
uniformly held that airport users have no right to bring an action
in federal court claiming a recipient airport’s violation of the
§ 47107 grant assurances . . . .”); Tutor v. City of Hailey, No.
02-CV-0475, 2004 WL 344437, at *8 (D. Idaho Jan. 20, 2004) (“[N]o
implied private right of action exists under ANCA.”); E. Hampton
Airport Prop. Owners Ass’n, Inc. v. Town Bd. of Town of E. Hampton,
72 F. Supp. 2d 139, 147 (E.D.N.Y. 1999) (“Section 47107 [of the
AAIA]

does

not

give

rise

to

a

private

right

of

action.”).

Plaintiffs do not dispute this long line of precedent.

Thus, ANCA

requires certain procedural hurdles prior to the enactment of noise
and access restrictions on Stage 2 and Stage 3 aircrafts, and the
AAIA requires the recipient of airport improvement funds to comply
with the AAIA’s Grant Assurances, but neither statute permits
Plaintiffs to sue to enforce compliance in federal court.
Plaintiffs therefore seek to sue directly under the
Supremacy Clause.

However, the Supremacy Clause also does not

supply a private right of action.

As the Supreme Court recently

clarified in Armstrong v. Exceptional Child Center, Inc., 135 S.
Ct. 1378, 1383, 191 L. Ed. 2d 471 (2015), the Supremacy Clause
merely “creates a rule of decision . . . .

It instructs courts

what to do when state and federal law clash, but is silent
regarding who may enforce federal laws in court, and in what
circumstances they may do so.”

Thus, the Supremacy Clause “is not
22

the ‘source of any federal rights,’ and certainly does not create
a cause of action.”

Id. (quoting Golden State Transit Corp. v.

Los Angeles, 493 U.S. 103, 107, 110 S. Ct. 444, 449, 107 L. Ed. 2d
420 (1989)).
Nevertheless, this is not to say that federal courts
lack

equitable

preempted

state

jurisdiction
legislation:

to

enjoin

the

“[F]ederal

implementation

courts

may

in

of

some

circumstances grant injunctive relief against state officers who
are violating, or planning to violate, federal law.”

Id. at 1384;

see also id. (“The ability to sue to enjoin unconstitutional
actions by state and federal officers is the creation of courts of
equity . . . .”); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96
n.14, 103 S. Ct. 2890, 2899 n.14, 77 L. Ed. 2d 490 (1983) (“A
plaintiff who seeks injunctive relief from state regulation, on
the ground that such regulation is pre-empted by a federal statute
which, by virtue of the Supremacy Clause of the Constitution, must
prevail, thus presents a federal question which the federal courts
have

jurisdiction

under

28

U.S.C.

§

1331

to

resolve.”).

Accordingly, Plaintiffs may be able to invoke this Court’s equity
jurisdiction

to

enjoin

the

allegedly

preempted

Town

Laws

regardless of whether ANCA, the AAIA, or the Supremacy Clause
creates a private right of action.

See Armstrong, 135 S. Ct. at

1391 (Sotomayor, J., dissenting) (“[The Court has] thus long
entertained suits in which a party seeks prospective equitable
23

protection from an injurious and preempted state law without regard
to whether the federal statute at issue itself provided a right to
bring an action.” (collecting cases)).
But, as Armstrong counsels, even “[t]he power of federal
courts of equity to enjoin unlawful executive action is subject to
express and implied statutory limitations.”

135 S. Ct. at 1385

(holding that private Medicaid providers could not sue to enforce
Section 30(A) of the Medicaid Act because Congress “implicitly
preclude[d] private enforcement of § 30(A)”); see also Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 74, 116 S. Ct. 1114,
1132, 134 L. Ed. 2d 252 (1996) (“Where Congress has created a
remedial scheme for the enforcement of a particular federal right,
we have, in suits against federal officers, refused to supplement
that scheme with one created by the judiciary.”).
Here,

in

this

Court’s

view,

Congress

intended

foreclose equitable enforcement of the AAIA’s Grant Assurances.

to
A

fair reading of the AAIA indicates that Congress intended to place
authority for the enforcement of the AAIA’s Grant Assurances
exclusively in the hands of the Secretary of Transportation through
a comprehensive administrative enforcement scheme.

For starters,

Section 47107(a) authorizes the Secretary to approve a grant
application

“if

the

Secretary

satisfactory to the Secretary.”
added).

receives

written

assurances,

49 U.S.C. § 47107(a) (emphasis

If the FAA awards a grant, the Grant Assurances then
24

“become

a

binding

contractual

obligation

sponsor and the Federal government.”
2005 WL 1900515, at *11.

between

airport

Pac. Coast Flyers, Inc.,

The Secretary is then responsible for

ensuring compliance with the Grant Assurances.
§ 47107(g).

the

See 49 U.S.C.

And to ensure compliance, Congress mandated that the

Secretary “prescribe requirements for sponsors that the Secretary
considers necessary.”

49 U.S.C. § 47107(g) (emphasis added).

Additionally, Section 47122 states that the Secretary “may take
action the Secretary considers necessary to carry out [the AAIA],
including

conducting

investigations

and

public

hearings,

prescribing regulations and procedures, and issuing orders.”
U.S.C. § 47122(a).
which

place

the

49

Based on all of these elements of the AAIA,

responsibility

of

Grant

Assurance

compliance

squarely with the Secretary, the Court finds that Congress at least
implicitly

precluded

federal

courts

from

exercising

equity

jurisdiction to enforce the AAIA’s Grant Assurances.
The Court’s holding today does not leave an airport user
without

adequate

recourse,

however.

The

FAA’s

enforcement

regulations permit a party “directly and substantially affected”
by

an

airport

sponsor’s

alleged

noncompliance

with

Assurance to file a formal complaint with the FAA.
§ 16.23(a).

a

Grant

14 C.F.R.

If the pleadings demonstrate a “reasonable basis for

further investigation,” the FAA investigates the allegations,
after which the Director of the Office of Airport Safety and
25

Standards

issues

an

§§ 16.29(a), 16.31(a).

“initial

determination.”

14

C.F.R.

If the Director dismisses the complaint,

the interested party can file an administrative appeal to the
Associate Administrator for Airports, who examines the existing
record and issues a final decision without a hearing.
§§ 16.31(c), 16.33(a)(1).

14 C.F.R.

This final decision is then appealable,

but only to a federal court of appeals.

49 U.S.C. § 46110(a); 14

C.F.R. § 16.247(a).
The FAA’s administrative grant enforcement procedure is
not insignificant.

Indeed, “[c]ourts interpreting § 47107 have

uniformly held that airport users have no right to bring an action
in federal court claiming a recipient airport’s violation of the
§ 47107 grant assurances until that claim has been raised with the
FAA.”

Airborne, 2006 WL 753016, at *1 (collecting cases); see

also Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 955 F.2d 1054,
1059

(6th

Cir.

1992)

(holding

that

“all

claims

against

the

defendants under the AAIA were properly dismissed for failure to
exhaust administrative remedies”).
However,

the

Court

recognizes

that

this

case

is

complicated by the fact that the FAA agreed in the 2005 Settlement
Agreement not to enforce Grant Assurance 22(a).
3 at 5.)

(Pilsk Decl. Ex.

On its face, this agreement appears to violate the

Secretary’s statutorily mandated duty to ensure compliance with
the AAIA.

The FAA’s own decisions and determinations support this
26

conclusion.

See Platinum Aviation & Platinum Jet Ctr. BMI v.

Bloomington-Normal Airport Auth., FAA Docket No. 16-06-09, 2007 WL
4854321, at *15 (Nov. 28, 2007) (“[The] FAA can neither bargain
away the rights of access to public-use taxiways and movement areas
nor waive the grant assurances of the Respondent.

[The] FAA is

required to enforce the federal statutes to protect the federal
interest in the Airport.

The Part 16 process ensures respondents

comply with their agreements with the federal government to protect
and serve the public interest.”); In re Compliance with Fed.
Obligations by the City of Santa Monica, Cal., FAA Docket 16-0208, 2008 WL 6895776, at *26 (May 27, 2008) (“The FAA may not by
agreement waive its statutory enforcement jurisdiction over future
cases.”).

Thus, the Court is sorely tempted to issue a ruling

that the FAA is statutorily obligated to enforce the Town’s Grant
Assurances notwithstanding its agreement not to enforce in the
2005 Settlement Agreement.

However, the Court will not rule on

the scope of the FAA’s duties without first providing the FAA an
opportunity to be heard.

Currently, the FAA’s response to the

Complaint in the FAA Action is due on July 8, 2015.

After the FAA

responds, the Court may order additional briefing and/or schedule
a hearing to address this issue.

In the meantime, Plaintiffs may,

if they wish, file a complaint with the FAA regarding the Town’s
alleged failure to comply with its Grant Assurances.

27

Finally, the Court will entertain Plaintiffs’ preemption
claim with respect to ANCA.

With respect to ANCA, Plaintiffs

simply seek a declaration and injunctive relief that ANCA expressly
preempts any noise or access restriction on a Stage 2 or Stage 3
aircraft unless the airport proprietor follows ANCA’s procedural
requirements.

This claim does not raise the same jurisdictional

concerns as Plaintiffs’ AAIA claims.

There is nothing in the text

or structure of ANCA indicating that Congress intended to preclude
a federal court sitting in equity from entertaining Plaintiffs’
preemption challenge, nor is there an administrative enforcement
proceeding that would permit Plaintiffs to pursue their claim.
The Court will now turn to the requirements of Plaintiffs’ motion
for a preliminary injunction.
C.

Irreparable Harm
“A showing of irreparable harm is ‘the single most

important

prerequisite

injunction.’”

for

the

issuance

of

a

preliminary

Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d

110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d
227, 233–34 (2d Cir. 1999)).

Accordingly, “‘the moving party must

first demonstrate that such injury is likely before the other
requirements
considered.’”

for

the

issuance

of

an

injunction

will

be

Grand River Enter. Six Nations, Ltd. v. Pryor, 481

F.3d 60, 66 (2d Cir. 2007) (quoting Freedom Holdings, Inc. v.
Spitzer,

408

F.3d

112,

114

(2d
28

Cir.

2005)).

To

meet

the

irreparable harm requirement, Plaintiffs “‘must demonstrate that
absent a preliminary injunction they will suffer an injury that is
neither remote nor speculative, but actual and imminent, and one
that cannot be remedied if a court waits until the end of trial to
resolve the harm.’”

Faiveley, 559 F.3d at 118 (quoting Grand

River, 481 F.3d at 66).

“‘Where there is an adequate remedy at

law, such as an award of money damages, injunctions are unavailable
except in extraordinary circumstances.’”

Id. (quoting Moore v.

Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)).
“A ‘substantial loss of business,’ particularly where
there is a threat of bankruptcy, constitutes irreparable injury
sufficient to satisfy this standard.”

Nat’l Helicopter Corp. of

Am. v. City of N.Y., 952 F. Supp. 1011, 1018 (S.D.N.Y. 1997)
(“National Helicopter I”) (quoting Doran v. Salem Inn, Inc., 422
U.S. 922, 932, 95 S. Ct. 2561, 2568, 45 L. Ed. 2d 648 (1975)),
aff’d in part, rev’d in part, Nat’l Helicopter II, 137 F.3d 81 (2d
Cir. 1998).
its

“Major disruption of a business can be as harmful as

termination

and

thereby

constitute

irreparable

injury.”

Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1186 (2d Cir. 1995)
(remanding with instructions that the plaintiffs “may show that
the lost profits . . . are of such magnitude as to threaten the
viability of their businesses”).

Additionally, “[t]he threat that

a business will suffer a significant loss of ‘good will’--a matter

29

not easily quantified--is particularly suited to a claim for
injunctive relief.”

Nat’l Helicopter I, 952 F. Supp. at 1018.

Plaintiffs argue that they will suffer irreparable harm
absent an injunction because the Town Laws will: (1) “cause severe
economic harm” that will “threaten the continued existence of some
Plaintiffs”; and (2) “cause incalculable and irreversible damage
to

Plaintiffs’

reputation.”

goodwill,

relationships,

(Pls.’ Br. at 8-11.)

market

share,

and

Plaintiffs have submitted

various affidavits from executives and high-ranking employees to
support these allegations.

(See Renz Decl., Docket Entry 22;

Jungck Decl., Docket Entry 23; Vellios Decl., Docket Entry 24;
Herbst Decl., Docket Entry 25; Carlson Decl., Docket Entry 28;
Ashton Decl., Docket Entry 29.)

A review of these affidavits

demonstrates

Plaintiffs

that

at

least

some

have

demonstrated

irreparable harm absent an injunction.
The majority of the aircrafts that many of the Plaintiffs
use for their charter services to the Airport are subject to the
Town Laws’ Noisy Aircraft definition.

(Renz Decl. ¶ 20 (six of

Analar’s seven helicopters); Ashton Decl. ¶ 15 (all ten of AAG’s
helicopters);

Carlson

Decl.

¶

18

(HeliFlite’s

entire

Vellios Decl. ¶ 11 (all eleven of Liberty’s helicopters).

fleet);
Thus,

it cannot be seriously argued that the Town Laws, particularly
their One-Trip Limit, will not cause substantial business losses
that might threaten Plaintiffs’ existence.
30

For example, according

to Analar’s president, Michael Renz, flights to and from the
Airport account for fifty-five percent of Analar’s revenue, and
over seventy percent of its passengers fly to and from the Airport.
(Renz Decl. ¶¶ 9, 11.)

He estimates that sixty-five percent of

Analar’s flights will be prohibited under the Town Laws.

(Renz.

Decl. ¶ 20.)
Moreover, as noted, in addition to providing charter
services, AAG and HeliFlite manage “fractional aircraft ownership
programs,” which involve selling partial ownership or leasehold
interests of a helicopter to private individuals who wish to
operate their own helicopter using AAG and HeliFlite as managers.
(Compl. ¶¶ 14, 17.)

According to AAG’s president, its prospective

fractional owners have delayed purchasing shares and some of its
existing fractional owners have delayed renewing their shares
pending the outcome of this matter.

(Ashton Decl. ¶ 28.)

In this

Court’s view, this would result not only result in lost revenue,
but also damage to AAG’s reputation and good will with its present
and

prospective

predicament.

clients.

HeliFlite

likely

(Carlson Decl. ¶¶ 26-27.)

faces

the

same

Similarly, three of

Analar’s seven helicopters are owned by third-party individuals
with personal travel needs to and from the Airport, some of who
have advised Analar that they will sell their helicopters if the
Town Laws go into effect. (Renz Decl. ¶¶ 21, 24.) This undoubtedly
would constitute a major business disruption because Analar would
31

not only lose its management business, but also the use of those
helicopters for other customers.

Additionally, some Plaintiffs

believe that they will have to reduce their fleets and terminate
many of their employees, including highly-skilled pilots.
Renz Decl. ¶¶ 17, 25; Vellios Decl. ¶ 20; Ashton Decl. ¶ 24.)

(See
In

a highly-specialized industry, the loss of operating equipment and
pilots could be difficult to replace.
In sum, the Town Laws undoubtedly will impose on some of
the Plaintiffs substantial business losses, major operational
disruptions, and losses of good will that could be difficult to
quantify.

Plaintiffs have therefore demonstrated irreparable harm

absent an injunction.9

Additionally, the Court notes that money damages may not be
available to at least one Plaintiff, Liberty, which is a New
York corporation. Money damages are unavailable for its
preemption claims. As previously noted, the AAIA, ANCA, and the
Supremacy Clause do not create private causes of action. (See
supra pp. 20-22.) Nor is a claim available for violations of
the AAIA or ANCA under 42 U.S.C. § 1983. See Scott Aviation,
Inc. v. DuPage Airport Auth., 393 F. Supp. 2d 638, 647 (N.D.
Ill. 2005) (holding that a plaintiff may not base a Section 1983
claim upon a violation of the AAIA); Tutor, 2004 WL 344437, at
*10 n.4 (same, but for ANCA). And although Plaintiffs’ Commerce
Clause claim might support a money damages award under 42 U.S.C.
§ 1983, see Dennis v. Higgins, 498 U.S. 439, 111 S. Ct. 865, 112
L. Ed. 2d 969 (1991) (recognizing that Commerce Clause claims
are actionable under 42 U.S.C. § 1983), these damages clearly
would be limited to those incurred in connection with an
unconstitutional restraint on interstate commerce, see Town of
Southold v. Town of E. Hampton, 477 F.3d 38, 47 (2d Cir. 2007)
(stating that the “[D]ormant Commerce Clause . . . limits the
power of local governments to enact laws affecting interstate
commerce”). Thus, being a New York corporation, Liberty likely
9

32

D.

Likelihood of Success on the Merits
Having found irreparable harm absent an injunction, the

Court now turns to the merits of this case. As noted, the Supremacy
Clause provides that federal statutes preempt contrary state and
local laws.

See Nat’l Helicopter II, 137 F.3d at 88 (“The

Supremacy Clause of the United States Constitution invalidates
state and local laws that ‘interfere with or are contrary to, the
laws of congress.’” (quoting Chicago & N.W. Transp. Co., 450 U.S.
at 317, 101 S. Ct. at 1130).
Laws

are

invalid

because

Plaintiffs contend that the Town
ANCA

“expressly

preempts

local

proprietors from imposing any noise or access restrictions on any
aircraft classified by the FAA as a ‘Stage 2’ or ‘Stage 3’ aircraft
unless the proprietor has first complied with ANCA’s stringent
requirements.”

(Pls.’

Alternatively,

Plaintiffs

Br.

at

argue

14

that

(emphasis

the

laws

are

omitted).)
preempted

because they unreasonable, arbitrary, and discriminatory.

(Pls.

Br. at 21-25.)
The Town responds that ANCA does not expressly preempt
local noise regulations.

Rather, the Town reads ANCA to provide

airport proprietors with a choice: comply with ANCA’s requirements
or

lose

eligibility

(Def.’s Br. at 14-15.)

for

federal

airport

improvement

grants.

As long as an airport proprietor’s noise

would not be entitled to money damages under the Commerce
Clause.
33

regulation is reasonable, non-arbitrary, and non-discriminatory,
the Town contends, such regulation constitutes a valid exercise of
the

airport

proprietor’s

proprietary

rights

in

the

airport.

(Def.’s Br. at 14-15.)
As discussed below, the Court agrees with the Town that
ANCA does not expressly preempt all airport proprietors from
adopting

access

procedural
below,

restrictions

requirements.

the

Plaintiffs

Court
have

also

before

However,
finds

demonstrated

that
that

for
on
the

complying
the
the

with

reasons
record

One-Trip

ANCA’s

explained

before

Limit

is

it,
not

reasonable.
1.

Whether ANCA Preempts the Town Laws

Under the Airline Deregulation Act (“ADA”), Congress has
expressly preempted state and local regulations “related to a
price,

route

§ 41713(b)(1)).

or

service

of

an

air

carrier.”

49

U.S.C.

However, Congress also expressly stated that the

ADA’s preemptive effect does not apply to regulations passed by
state and local authorities in the course of “carrying out [their]
proprietary powers and rights.”

49 U.S.C. § 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

34

population.” Nat’l Helicopter II, 137 F.3d at 88 (collecting cases
and legislative history).
Thus, “federal courts have recognized federal preemption
over

the

regulation

complementary

of

though

aircraft

more

and

‘limited

airspace,
role

subject

for

local

to

a

airport

proprietors in regulating noise levels at their airports.’”

Id.

(quoting City and County of San Francisco v. F.A.A., 942 F.2d 1391,
1394 (9th Cir. 1991)).

Known as the “proprietor exception,” it

permits a local municipality, acting in its proprietary capacity,
as opposed to its police power, to adopt “‘reasonable, nonarbitrary
and

non-discriminatory’

regulations

of

environmental concerns at the local level.”

noise

and

other

Id. (quoting British

Airways Bd. v. Port Auth. of N.Y., 558 F.2d 75, 84 (2d Cir. 1977));
see also Glob. Int’l Airways Corp. v. Port Auth. of N.Y. & N.J.,
727 F.2d 246, 248 (2d Cir. 1984) (“[S]tates and localities retain
power

in

their

capacity

as

airport

proprietors

to

establish

requirements as to the level of permissible noise created by
aircraft using their airports.”). The rationale for the proprietor
exception

is

compensable

that
takings

since
from

airport

proprietors

excessive

aircraft

are

liable

noise,

for

British

Airways, 558 F.2d at 83 (citing Griggs v. Allegheny Cnty., 369
U.S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585 (1962)), fairness dictates
that they should have the power to limit their liability by
restricting access to their airports, see id. (“The right of the
35

proprietor to limit his liability by restricting the use of his
airport has been thought a corollary of this principle.”).
Plaintiffs

do

proprietor’s exception.

not

dispute

the

existence

of

the

Rather, they contend that when Congress

enacted ANCA in 1990, it “displac[ed] local proprietors’ authority
to unilaterally impose restrictions.”
Court disagrees.

(Pls.’ Br. at 15.)

The

Plaintiffs are correct that ANCA directed the

Secretary of Transportation to “establish[ ] by regulation a
national

program

for

reviewing

airport

noise

and

access

restrictions on the operation of stage 2 and stage 3 aircraft.”
49 U.S.C. § 47524(a).

However, under Section 47526 of ANCA,

entitled, “Limitations for noncomplying airport noise and access
restrictions,” the only consequences for failing to comply with
ANCA’s review program are that the “airport may not--(1) receive
money under [the AAIA]; or (2) impose a passenger facility charge
under [49 U.S.C. § 40117].”
raises an obvious question.

49 U.S.C. § 47524.

This provision

If Congress intended to preempt all

airport proprietors from enacting noise regulations without first
complying with ANCA, why would it also include an enforcement
provision mandating the loss of eligibility for federal funding
and the ability to impose passenger facility charges?

The logical

answer is that Congress intended to use grant and passenger
facility

charge

restrictions

compliance with ANCA.

to

encourage,

but

not

require,

Indeed, in National Helicopter II, the
36

Second Circuit affirmed a decision rendered by then-District Judge
Sonia Sotomayor in which she applied the proprietor exception to
uphold various noise regulations imposed by the City of New York
on Manhattan’s East 34th Street Heliport notwithstanding the fact
that the plaintiff in that case presented the same ANCA-preemption
argument that Plaintiffs assert here.
137

F.3d

at

88;

Nat’l

Helicopter

See Nat’l Helicopter II,

I,

952

F.

Supp.

at

1023.

Accordingly, in line with National Helicopter II, this Court holds
that ANCA did not displace the proprietor exception.10
2.

Whether the Town Laws Are Reasonable, NonArbitrary, and Non-Discriminatory

Even though ANCA does not expressly preempt the Town
Laws, to be constitutional under the proprietor exception, the
laws

still

must

discriminatory.
proprietor

be

reasonable,

non-arbitrary,

and

non-

Nat’l Helicopter II, 137 F.3d at 88 (“[T]he

exception

allows

municipalities

to

promulgate

‘reasonable, nonarbitrary and non-discriminatory’ regulations of
noise

and

other

environmental

concerns

at

the

local

level.”

The Court does note that the Airport is federally obligated
since it accepted federal funds in 2001, and ANCA expressly
states that it “does not affect . . . the authority of the
Secretary of Transportation to seek and obtain legal remedies
the Secretary considers appropriate, including injunctive
relief.” 49 U.S.C. § 47533. The Court offers no opinion on
whether or not the FAA has authority to enjoin the Town Laws on
the basis that the Airport is still federally obligated and
therefore would need to comply with ANCA’s procedural
requirements.
10

37

(quoting British Airways, 558 F.2d at 84)).

Regulations of noise

“must avoid even the appearance of irrational or arbitrary action.”
Id. at 89.
For ease of reference, the Town Laws impose the following
three

access

restrictions:

(1)

the

Mandatory

Curfew,

which

prohibits all aircraft from using the Airport between 11:00 p.m.
and

7:00

a.m.;

(2)

the

Extended

Curfew,

prohibiting

“Noisy

Aircraft” from using the Airport from 8:00 p.m. to 9:00 a.m.; and
(3) the One-Trip Limit, a weekly limit prohibiting Noisy Aircraft
from using the Airport more than two times per week during the
months of May, June, July, August, and September.

See TOWN

OF

E.

HAMPTON CODE § 75-38(B)-(C).
Plaintiffs argue that the Town Laws are unreasonable,
arbitrary, and discriminatory on three grounds: (1) “the Town
justified

[the

Town

Laws]

with

deeply

flawed

data

that

are

noncompliant with federal regulations,” (Pls.’ Br. at 22-23);
(2) “The Town’s ‘Noisy Aircraft’ standard is unreasonable because
it

is

so

extreme

and

excessive”

and

“is

also

arbitrary

and

discriminatory,” (Pls.’ Br. at 23-24); and (3) the Town Laws “are
unreasonable and conflict with federal law because they create
potential safety problems,” (Pls.’ Br. at 24-25).
first

address

Plaintiffs’

arguments

regarding

The Court will
safety

and

the

Town’s data since both arguments are applicable to all three access
restrictions.
38

With respect to safety, Plaintiffs contend that the Town
Laws’

curfews

are

unsafe

because

they

impose

financial

and

injunctive penalty provisions that could influence pilot decisions
in an unsafe manner and also divert air traffic to nearby airports
that are unable to handle an increased demand.

(Pls.’ Br. at 24-

25.) However, on the record before the Court, there is no evidence
that the mandatory curfews would force any pilot to operate his or
her aircraft in an unsafe manner.
speculative.

Plaintiffs’ argument is purely

Plaintiffs also cite to an FAA decision in which the

FAA found that a mandatory curfew imposing financial penalties and
injunctions was unsafe, and therefore unreasonable, because it
“‘reache[d]
interact[ed]

into

the
with

cockpits

of

safety

critical . . . decisions’ by pilots.”

individual
parameters

aircraft

and

affecting

(Pls.’ Br. at 24 (quoting

FAA Decision on 14 CFR Part 161 Study – Proposed Runway Use
Restriction at LAX (Nov. 7, 2014) (alterations and ellipsis in
original)).11

However, in this case, the Town Laws include an

exception for operational or medical emergencies.

See TOWN

OF

E.

The FAA’s LAX decision is available at:
http://www.faa.gov/airports/environmental/airport_noise/part_161
/media/Final-Determination-LAX-Part%20161-Application20141107.pdf.
11

39

HAMPTON CODE § 75-38(E).12

In this regard, the Court notes that the

FAA has been aware that the Town intended to impose curfews at the
Airport since at least the end of February this year.

If at any

time the FAA believed that the curfews were unsafe, it could, and
still can, attempt to regulate the Town Laws based on safety
concerns.
Plaintiffs

also

argue

that

the

Town

Laws

are

unconstitutional because the Town justified the Town Laws based on
flawed data not compliant with federal regulations.

Specifically,

Plaintiffs contend that the FAA has established a single metric-yearly

day-night

noise

exposure

level

expressed

in

decibels

(“DNL”)--and “requires its use by all airports to justify any
efforts to reduce airport noise by restricting aircraft access.”
(Pls.’ Br. at 22.)

Plaintiffs are correct that the FAA has

established the DNL metric with respect to submissions under ANCA

12

Specifically, Section 75-38 states:
The restrictions of this section 75-38 shall not apply
to any aircraft operational emergency, any medical
emergency operation, whether by public or private
aircraft, or to any operation by a government-owned
aircraft,
including,
without
limitation,
police,
emergency services, and military operations. In the case
of an aircraft emergency or medical emergency operation,
the operator shall submit a sworn statement to the
Airport Manager within 24 hours of such operation
attesting to the nature of the emergency and reason for
the operation.

TOWN

OF

E. HAMPTON CODE § 75-38(E)
40

and the Airport Noise and Safety Act of 1979 (“ANSA”), 49 U.S.C.
§ 47502, et seq.

See, e.g., Aircraft Owners & Pilots Ass’n v.

City of Pompano Beach, FAA Docket 16-04-01, 2005 WL 3722717, at
*28 (Dec. 15, 2005).

However, here, the question is whether the

Town acted appropriately under the proprietor exception, not ANCA
or ANSA.

In adopting the Town Laws, the Town considered formal

complaints submitted through the Airport’s formal complaint log,
which yielded over 23,000 complaints.

The Court recognizes that

a large portion of these complaints came from a small number of
households, but it cannot be argued that the Town lacked data to
support a finding of a noise problem at the Airport, particularly
given the large increase in helicopter traffic in recent years.
Indeed, courts have affirmed the FAA’s use of complaint data “as
empirical data of a noise problem.”

Helicopter Ass’n Int’l, Inc.

v. F.A.A., 722 F.3d 430, 436 (D.C. Cir. 2013).
Having found no evidence that the Town Laws are unsafe
and that Plaintiffs have failed to demonstrate that the Town lacked
sufficient noise data, the Court turns to the Mandatory Curfew.
Aside from its argument that the Town relied on flawed data,
Plaintiffs do not specifically argue that the Mandatory Curfew is
unreasonable, arbitrary, or discriminatory.
Court

will

not

preliminarily

enjoin

the

Accordingly, the

Mandatory

Curfew,

decision which is in line with precedent in this Circuit.

a

See

Nat’l Helicopter II, 137 F.3d at 89 (affirming district court’s
41

decision to uphold weekday and weekend curfews because “[t]he
protection of the local residential community from undesirable
heliport noise during sleeping hours is primarily a matter of local
concern

and

for

that

reason

falls

within

the

proprietor

exception”).
The

Court

now

turns

applicable to “Noisy Aircraft.”

to

the

access

restrictions

Plaintiffs first argue that the

definition of “Noisy Aircraft” is “unreasonable because it is so
extreme and excessive.”
argument,

Plaintiffs

(Pls.’ Br. at 23.)
submit

expert

In support of this

declarations

and

other

affidavits alleging that the Noisy Aircraft definition includes
certain aircraft that a generally viewed as quiet.

(See Shaffer

Decl., Docket Entry 20, ¶ 36; Jungck Decl. ¶ 5; Brown Decl., Docket
Entry 27, ¶ 22.)

The Court disagrees with Plaintiffs.

As noted,

Noisy Aircraft is defined as “any airplane or rotorcraft for which
there is a published Effective Perceived Noise in Decibels (EPNdb)
approach (AP) level of 91.0 or greater.”
75-38A(4)(a).

TOWN

OF

E. HAMPTON CODE §

The 91 EPNdb threshold appears to be a valid

indicator of noise as it affects individuals.

As the FAA has

explained:
EPNL is a single number measure of the noise of an
individual airplane flyover that approximates
laboratory annoyance responses. . . .
The EPNL
computation process effectively yields a time
integrated annoyance level.

42

See FAA, Advisory Circular 36-4C, Noise Standards: Aircraft Type
and Airworthiness Certification ¶ 192(a).13

Even if not all

aircrafts are EPNdb certified, as Plaintiffs claim, this does not
render the Noisy Aircraft definition arbitrary or discriminatory.
For starters, Plaintiffs do not identify how many aircraft are not
EPNDb certified.

Additionally, the Noisy Aircraft definition is

based on noise, as opposed to restrictions based on weight or size,
which courts have found to constitute unreasoned discrimination
because they do not regulate based on noise.

See, e.g., Nat’l

Helicopter II, 137 F.3d at 91 (“In this case, the City placed
restrictions on certain aircraft because of their size--not the
noise they make--despite evidence that larger helicopters are not
necessarily noisier than smaller ones.

A regulation purporting to

reduce noise cannot bar an aircraft on any other basis.”).

Thus,

Plaintiffs have not demonstrated that the 91 EPNdb threshold for
Noisy Aircraft is arbitrary or discriminatory, at least at this
stage

of

the

litigation.

The

Court

therefore

will

not

preliminarily enjoin the Extended Curfew that applies to Noisy
Aircraft, for the same reasons stated with respect to the Mandatory
Curfew.

The Advisory Circular is available at:
http://www.faa.gov/documentLibrary/media/Advisory_Circular/AC364C.pdf.
13

43

However, the Court will preliminarily enjoin the OneTrip Limit as applied to Noisy Aircraft.

This measure is drastic,

considering the effect it poses on some of Plaintiffs’ businesses,
and there is no indication that a less restrictive measure would
not also satisfactorily alleviate the Airport’s noise problem.
Accordingly, on the record before it, the Court will preliminarily
enjoin the One-Trip Limit as not reasonable.

In making this

ruling, the Court has considered the fact that the Town’s complaint
data originated from a small percentage of the Town’s residents.
E.

Balance of Hardships
“The balance of hardships inquiry asks which of the two

parties would suffer most grievously if the preliminary injunction
motion were wrongly decided.”

Goldman, Sachs & Co. v. N. Carolina

Mun. Power Agency No. One, No. 13-CV-1319, 2013 WL 6409348, at *8
(S.D.N.Y. Dec. 9, 2013) (internal quotation marks and citation
omitted).

Here, the balance of hardships tips in the Town’s favor

with respect to the Mandatory Curfew and Extended Curfew, as the
Town’s desire to protect its residents during sleeping hours
clearly outweighs the inconvenience Plaintiffs may experience by
having to minimize their flight schedules.

However, with respect

to the One-Trip Limit, the balance tips in Plaintiffs’ favor in
light of the fact that the One-Trip Limit will have a drastic
impact on their businesses, and there is no indication in the
Town’s papers that a less restrictive measure would not also
44

satisfactorily alleviate the Town’s noise problem.

Accordingly,

Plaintiffs’ motion for a preliminary injunction is GRANTED IN PART
and DENIED IN PART.

It is GRANTED with respect to the Town Laws’

One-Trip Limit and is DENIED with respect to the Mandatory Curfew
and Extended Curfew.
II.

Motion to Consolidate
Plaintiffs also seek to consolidate this action and the

FAA Action for all purposes.

The Court, in its discretion,

RESERVES JUDGMENT on this motion pending the filing of the FAA’s
response to the Complaint in the FAA Action.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for a
preliminary injunction enjoining enforcement of the Town Laws
(Docket Entry 19) is GRANTED IN PART and DENIED IN PART.

It is

GRANTED with respect to the One-Trip Limit and is DENIED with
respect to the Mandatory Curfew and Extended Curfew.
RESERVES

JUDGMENT

with

respect

to

Plaintiffs’

The Court
motion

to

consolidate (Docket Entry 14) pending the filing of the FAA’s
response to the Complaint in the FAA Action.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

June
26 , 2015
Central Islip, NY
45