john rose who's representing the city of new haven the record in this case includes thirty seven stipulations of fact and twelve a joint exhibits the stipulation the facts were applied to the law we think in an incorrect way we believe that it in novo review by this court is appropriate the issue with the lower court is one that we feel the court has ignored our main argument with regards to standing we are in article six plaintiffs we are not in court on the fourteenth amendment case and yet the court spent a great deal of time discussing forth a met fourteenth amendment amendment cases we are here with regards to public rights not private rights the public rights include the rights of the federal government to control what constitutes the boundaries of the airport and everything within those boundaries as well isn't it navigable space air space around the airport the statue here targeted tweet airport there's nothing facially neutral about this statue like a lot of the statutes that the judge in the lower court seem to really rely on what is the status of the  happens there it does not affect the validity of the state statute at what it what it does is it ends all the other obligations that were not fulfilled under the original agreement all of which would have benefited the airport greatly and none of them ever happened are you bound by the memorandum of understanding or some argument that it no longer controls the argument  no longer controls because because it has been breached by the state of connecticut by the terms of the agreement which required that at the time that the statute was adopted limiting the length of the runway that the state would appropriate so you're saying it was no longer was it was never terminated but it's no longer operative yes because of breaches that's correct and i remember at the record i mean no there easily could have been issue in the bigger issue is the one that's before us today which is namely what do we do about a state statute that is limiting the length of the runway and crippling the ability of the airport authority to bring an obsolete airport into the modern era the problem at the trial level was that the judge actually treated the twee new haven airport authority which is in court on an article six case  clause so we had a terrible result at the local level at the lower court level i think mainly because the judge did not focus in on the fact that there's a significant distinction between article six cases and fourteenth amendment cases and i think we absolutely had an injury in fact from the moment the statute was and what was and acted because at that point in time as the defendants exhibit a makes very clear the federal government said you have a statute and acted to implement a memorandum of understanding it was enacted to implement one provision of the memorandum of agreement yes but you've just changed airport has changed its mind about the wisdom of having a runway limited in such well it would not be correct to say that the airport authority felt comfortable with this memorandum of agreement politics solve some problems and politics sometimes creates problems in this case what we found was that and this is something that we must remedy and there are many challenges for us in getting through the process of getting a longer runway but the one challenge that we cannot deal with on case is what was the congressional intent and i think the congressional intent and the federal aviation act as well as the air airline deregulation act and the third act which we call the a a act  is to give the federal government control over the activities within the boundaries of an airport so that they can create maximum safety and they can prove promote maximum competition in response to market forces and then in the a i a a to also was sure that the things that are needed in order to expand the service at the national system and to make a very comprehensive commercial air service program that the improvements that are needed in an airport will be construct air space based on case law and certainly within this circuit and we believe that the f a a act is applicable in this case why because  lengthening a runway is going to produce a safer run my as well as expanding the service at tween layman airport ok so what about the eighty year artist the length of the run routers well the stipulated facts i think make it pretty clear that at the moment we only have service to philadelphia and the only way we can expand that service is at a moment's notice and that's what we're worried about and that's why we need to begin to expand and we need to begin our project to lengthen the runway and it's going to take a long time to get that runway project complete and the sooner we do it the better off we're going to be because we're going to lose service i was just going to say but that's not about preemption that's about why it's important to you as a commercial runway and the state statute that was adopted in two thousand and nine absolutely makes that impossible a master plan was was blessed by the f a a yes and by the state of connecticut and you've had discussions with the f a a about the runway yes we have we applied actually taken the very first step and has the f a a said anything about the statute being an impediment yes they did in joint exhibit number eight the f a a administrator clearly said that you must do a number of different things but most of all you've got to get rid of that statute what's your strongest of your three differen e i think probably the a da you have to have to say that all of you know the issues surrounding service and the definition of service i would say that both price and service under the a da not price i'm sorry routes and service under the a da are at issue here because we cannot go to any american airlines is our only carrier right now and that carrier cannot go to any other location other than philadelphia if they're not up already no they're not a party to the case and i don't think they need to be a party to the case of the arapahoe case talks about determination of service senate airport and that is the case that where an airport was the issue and airline was not the principal so it doesn't have to be an airline that's bringing this kind of case we believe under da da where the idea is that we should have a broad interpretation of the statute that we are covered you have some time for a bottle so what i hear from your colleagues city owns this you know port city least is their board in the authority right after the state passed the legislation creating the authority it's interesting to read the use of the legislation creating new authority especially in light of what happened in two thousand and nine that is to say when this first we have this marvelous piece of legislation that says go forth and do all of the things that you can do to make this a very successful attempt got this law that says do all of the things you're going to do make it a successful airport it becomes a completely unsuccessful airport when it cannot accommodate planes that the line way the entire airline industry has gone from many many large companies to four it's all driven by the dollar you can't fly out of tweed in a plane that is fully passenger and with all of the luggage that people want to fly because the the the buildings the runways to shorten nobody's coming to this one this are to be with all in my opinion this ought to be west chester or white plains north almost three million people live in the catchment area they cannot use an airport that's right there that they could fly everywhere or have the absolute doubt about it not being like area and they ought to but the question is how to why is this our businesses as a federal court of appeals to to make sure that the better side wins unless you tell us how the federal law requires it seems to me that the federal law that is to say the f a a act applies completely here this is a this is a case about the f a a and the airport the state stuck its nose in and with all due respect flew in the face of the f a a and all of the federal legislation and it's interesting to me to take this case and analogize it to this court's decision in united states of america versus the city of new haven at four forty seven fed second night in seventy two it's almost like the state should have learned its lesson from that case the supreme court of the state of connecticut made a ruling having to do with what was then an ongoing war literally between nice haven and new haven and a state statute that statute specifically said according to the court that new haven having acquired property  as far as the court was good was concerned only the f a a deals the court said oops new haven you're going to find a thousand dollars a day for what you've done but the court relying on to hempstead new york cases the ordinance the action by the state supreme court is just wrong the federal government stood up and said we control would have been lovely to have the f a a in this case because it would have been easy it seems to me for us to win the case then because in fact the federal law pre amps the entire world here instead of how the f a a your  length of a runway an issue of air safe air safety if it's interesting at the moment there's an issue of a tree on the end of the runway that the airlines are concerned about the law is clear that runways are covered by the by the f a a period that's a safety issue they can tell you how long your own way can be how short it can be the state has no business sticking its nose in that area it's none of the state's business this is a law that's directed at the to say to the airport well we want you to be less than you are so we're going to pass a statute that limits the like you've earned your own runway they can't do that so you either use your powers as  reasons either have to limit the amount of the kinds of aircraft or you have to like the runway but can they make them require you to make one choice or the remember that the f a a acted on extending this one way to something in the area of sixty one hundred who are money who owns the airport new haven does it your honor in the sense of there's no factual evidence presented at trial that there is any commercial airline that is seeking to provide additional service or increase ervice to an airport very very hard to believe is that there's no evidence to show that there's any airline that has expressed an interest in committing service to the airport even if the runway is like that that's what we do know that's what the evidence has shown or are they fail to present evidence to the contrary would matter yes i think it would i think it would not i think if you had i think if you had i think would matter for standing purposes your honor i think of that that there was a massive demand not a massive man but there was a demand for increase ervice that was shown what did you find when i'm asking whether what it said was beginning december eighteenth of this year there will be service from the airport to charlotte and i'm simply asking you if that's wrong do you know i don't know if that say that i say that i don't want to cite evidence outside the record i'm aware of the development of additional services that have occurred at the airport i don't want to i don't want to cite them it would surprise me if american airlines has opened up a new sixty five hundred foot runway or seven thousand foot runway the state has no business going in there because safety is involved right that's supposing that's why posing suppos such that's terrible it goes bradley airport we want to have an airport you'd come here say well but it's unsafe no it is not unsafe it means you're just not going to have any commercial air service in can't can't sorry no airport in connecticut could have a runway more than five thousand feet because we only want prop jets in connecticut we don't want a prop planes economic and we don't want to do that again i think i think that starts to implicate interstate travel your honor on another level but my position is that as long as that does long as it doesn't affect the safety of that airport but doesn't what's happening in the way interfere with again the authority just wants the airport to get bigger without any evidence that there's any demand for increase or was there were ever this time if there were evidence your argument would be different i think would  doesn't affect aviation safety on this runway at that airport the parts of steeply that there are no current or pending f a a safety in force in actions or any violations of federal safety regulations right now that are existence as an airport doesn't in the abstract doesn't the length of a runway impact safety yes it does the weight why the word what more in the in the abstract about but not in this case you already you need sorry are given that concession that means seems to me that the statute applies in the in this particular case your honor as a general as a general rule runway can affect the amount of weight and passenger capacity they can put on an airplane which to play the fact that's that that's that's an obvious fact but that is not that is that is a fact that can that can affect safety on a runway depending on what planes fly there and service that airport in this particular case the planes that service this airport safely service the airport again there's no safety issue at the airport runway is safe for the current planes a fire there this runway safe for the replacement jets that can fly there as well and so there are no safety concerns on this runway at this airport and so unlike the case  years ago when the runway saviour's were people were improved that was all done for the purpose of improving safety look at the airport the state of connecticut pass a law that says  runway of five thousand they've done that and that's that's perfect about what they've done here so the answer is yes they they've done that with the with this with this airport by restricting the fifty six hundred speak that i think i think that that's what we have ok to do it for a new haven county but they can't do  count any county north of hartford let me have i think they can i think they can i think theoretically it can be done but because bradley has service that  requires a runway that's longer than five thousand feet then i don't think there would be i don't think that would that would be allowed i think that the fact that the difference is i guess said the difference here is that provided any commitment to do so saying that matter of fact i think i think that would matter i think i think that would that i think they would i think it would strengthen their case and why would they why would it matter what i think i think safety concerns a tweet comes in and says look we have we have several airlines including american or other airlines that have different jets that require sixty five hundred feet instead of five thousand six hundred feet and they can't land here and they are willing to provide an express commitment to come here and we need a long runway then the length of the runway would obviously impact the safety concerns about those planes at that time the problem is the problem project will produce a safer runway and i don't agree with that but again again the runway is safe right now as it is and for the planes it has to service at this moment  only if they are not full they have to limit the number of passengers they can fly with a full flight they have to limit amount of luggage and only then is it safe for the existing service isn't that so doesn't  the record indicate that i think that indicated your honor with the dash eight as opposed to the replacement jets while the planes that were your point wasn't safe right now at all i'm suggesting is it safe because they can't fill up the plane they don't fill up is there anything in the record that suggests that there are other airlines that would come if the if the runway were lengthened and yes yes there is in the record your honor allegiant airlines has sent a letter to the a and said that they will come if the run my is lengthened and it was an extraordinary event like that and that's in the record yes a four sixty five ok i'm just wondering whether they're able to do without a legion airlines but well wait we have we have the largest catchment area in the country that is not servicing orlando right now your honor and that's how a legion is anxious to come into our airport and i should point out that we are part of a national system we may not be a hub service and it affects service in philadelphia and places beyond philadelphia already talk about a little bit well the record is very clear that if we don't if we do not lengthen the runway we are not going to have commercial service in the future that's in the record and it's stipulated facts and we also had a testimony of an expert who testified on cross examination and he the evidence there was uncontroverted that we must lengthen the runway in order to continue to be part of the national system we are subsidizing the state is subsidizing tweed every year to the tune of at least one point five million dollars and that's because the service levels are such that we are not a self sustaining airport which is a violation of one of our grant to surance is and causes us additional problems with the f a a they want us to implement the master plan which calls for lengthening the runway so that we can expand service generate more revenue and meet the self sufficiency requirements of the  the point is that the federal government has invested forty million dollars in this affair just on that point you were making you know you need more business you're not self sustaining you need to wrecked now does that relate to save day or is that fall under some other statute for purposes of the preemption analysis safety and service are interrelated you cannot we cannot right now run airplanes out of twee fully loaded efficiency you have to live with us we must apps absolutely we must offload passengers on occasion and that's what we're doing right now in order to assure safety the reason that's right and on the safety issue we've certainly feel the f a a a act is applicable here on preemption because runways are very clearly a part of the navigable airspace and you have two cases in this circuit that clearly specify that and so while we think the a d a s applicable and the a i a may be applicable the f a a certainly also is applicable we finish up yes thank you i would just like to add that judge hall and her decision with regards to tweed made a very interesting point which was that she felt that the eighty eight was not applicable because there was nothing in the runway safety area project that was at issue in that case that would prevent larger aircraft from coming into the airport in other words she was saying if larger aircraft are prohibited for some reason by some state or local action from coming into the airport that would be implicating the a t f thanks very much we will reserve