A federal appeals court on Tuesday upheld an order for eight more daily airline flights at Long Beach Airport, effectively ending the city's attempt to limit flights to the current 18 until the validity of its new airport noise ordinance is decided by trial.
City officials said they will attempt to challenge the U.S. 9th Circuit Court of Appeals decision before the U.S. Supreme Court, but the city's lead lawyer in the case said it is highly unlikely that the high court will grant a hearing.
"It may be that the city's best option is to press for a prompt trial rather than seeking further review, but that is a decision to be made by the City Council," said attorney Lee L. Blackman.
The three-judge Circuit Court panel upheld the October, 1986, order of U.S. District Court Judge Laughlin E. Waters of Los Angeles to increase flights from 18 to 26.
The order takes effect immediately, and the four airlines that will each get their first two Long Beach flights--Delta, AirCal, America West and Ozark--have said they could be in operation within two months.
An AirCal spokesman said Wednesday that for two weeks the airline has been selling tickets from Long Beach Airport effective May 1, pending government approval. And that goal now seems realistic, he said. An America West spokesman said that airline has tentatively set June 1 for start-up.
Favor High Court Hearing
Mayor Ernie Kell and Councilman Edd Tuttle, whose 8th District is most affected by airline flights, said they want the city to seek a Supreme Court hearing. The City Council will probably make that decision next week, Kell said.
"We feel our cause is just, therefore we think we have a good chance," the mayor said.
But, after a Tuesday evening meeting with the city attorney, Tuttle said, "My preference is to appeal every element of the case, but the chances are not real high that the order will be stayed."
The issue decided Tuesday is only a small part of a larger case in which city officials are trying to limit flights and control airport noise while airlines and federal agencies push for greater use of the airport.
The city backs a plan that would gradually increase flights from 18 to 32 if aircraft noise is lowered and then kept within state-sanctioned levels in nearby residential areas. The airlines and the Federal Aviation Administration have pushed for a quick increase in daily flights from 18 to at least 41.
The matter has been argued since 1983, when Waters struck down the city's noise ordinance, saying its flight-allocation system was arbitrary. The judge then allowed an increase from 15 to 18 flights and gave the city time to draft a legally defensible set of noise rules.
After three years of study and debate, the council approved in July a new law that defied federal authorities by allowing only the gradual increase to a maximum of 32 flights.
Since then, the city has lost a series of court battles before Waters. In September, the judge refused to implement the new airport noise ordinance, and a month later he ordered an increase in flights from 18 to 26 even before trial on the ordinance's legality, which may not occur for another year. Waters said at the time that new flights had been blocked for 3 1/2 years and that further delay would be unreasonable.
In declining to block Waters' order, the appellate court said that the "appropriate minimum number of flights to be permitted in 1987 . . . is a matter as to which we would hesitate to substitute our judgment for that of a District Court."
Blackman said he was not surprised by the appellate court decision.
"This (was a ruling on) a preliminary injunction rather than a determination at the conclusion of a trial . . . and there is considerably more reluctance on behalf of the court of appeal to overturn these rulings," Blackman said.
The U.S. Supreme Court probably would likewise be reluctant to hear an appeal of a ruling on a preliminary injunction, he said. "The court is much more inclined to use its time on cases that have included the trial process," Blackman said.