County of Kern and the City of Bakersfield v. Civil Aeronautics Board and United Airlines, Inc., the State of California, Intervenor

671 F.2d 1223 COUNTY OF KERN and the City of Bakersfield, Petitioners, v. CIVIL AERONAUTICS BOARD and United Airlines, Inc., Respondents, The State of California, Intervenor. Nos. 79-7308, 80-7099. United States Court of Appeals, Ninth Circuit. Argued Feb. 12, 1980. Submitted June 2, 1980. Decided Dec. 8, 1980. As Amended on Denial of Rehearing and Rehearing En Banc May 13, 1981. Ralph B. Jordan, County Counsel, Bakersfield, Cal., Sarah E. Perry, Washington, D.C., for Bakersfield. Frank J. Costello, Washington, D.C., for City of Kern. Glen M. Bendixsen, Washington, D.C., argued, for CAB; John J. Powers, III, Washington, D.C., on brief. Hans U. Stucki, Chicago, Ill., for United Airlines. Mark F. Mispagel, Sacramento, Cal., for State of California. Petition to Review an Order of Civil Aeronautics Board. Before MERRILL and FARRIS, Circuit Judges, and BONSAL, * District Judge. FARRIS, Circuit Judge: 1 Kern County and the City of Bakersfield, California, petition for review of two orders of the Civil Aeronautics Board fixing the essential level of air transportation for Bakersfield and allowing United Airlines to terminate its service to Bakersfield. See 49 U.S.C. § 1486 (1976).…

dissenting:

I dissent as to the October, 1979, order, The question is not whether Bakersfield and Kern County are now receiving essential air service. The question is whether the Board, by its order, has determined Bakersfield’s essential air transportation in the manner contemplated by the Airlines Deregulation Act. In my judgment, it has not.

It must be emphasized that the Act contemplates that deregulation will be phased in over a ten-year transition period. It is the sufficiency of the assurance that essential air transportation will be provided during that transition period that is here at issue.

The Board’s order follows guidelines established by regulation. Those guidelines provide a formula which has, with few exceptions, been applied across the board to all communities as to which a determination must be made. However, as defined by § 1389(f), essential transportation is that which will “satisfy the needs of the community.” Senator Cannon, chairman of the Senate’s Aviation Subcommittee and one of the Act’s managers, said at one point with reference to the pending bill:

The Act, then, contemplates that the Board will, as to each eligible point, ascertain and set forth…

Kern County and the City of Bakersfield, California, petition for review of two orders of the Civil Aeronautics Board fixing the essential level of air transportation for Bakersfield and allowing United Airlines to ter *1224 mínate its service to Bakersfield. See 49 U.S.C. § 1486 (1976). The State of California has intervened in support of the petition. We affirm.

I. LEGAL BACKGROUND

On October 24, 1978, Congress passed the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705, which ended forty years of economic regulation of the domestic airline industry under the Civil Aeronautics Act of 1938, ch. 601, 52 Stat. 973 , and the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731. While previous law required the Civil Aeronautics Board’s permission for termination of air service, section 401(j) of the Deregulation Act, 49 U.S.C. § 1371 (j) (Supp.II 1978), allows an air carrier to terminate service by giving notice to the Board, the state’s aeronautics commission, and directly affected communities. Recognizing that instant deregulation might cause severe economic disruption, Congress provided for phased deregulation over a ten-year transition period. During…