People v. Civil Aeronautics Board

Opinion for the Court filed by District Judge GESELL. Dissenting Opinion filed by Circuit Judge WILKEY. GESELL, District Judge: The State of California, its Public Utilities Commission, and the National Association of Regulatory Utility Commissioners petition here for review of Civil Aeronautics Board orders1 which granted two intrastate California airlines conditional exemption from regulation as interstate carriers. The airlines in 1975 sought and obtained exemption from Board regulation2 despite holding themselves out as providing service to Lake Tahoe, Nevada, a resort located near the California border. Subsequently, in 1976, the Board temporarily renewed these exemptions3 pending a complete investigation into the air service patterns of the Lake Tahoe area.4 Petitioners, who participated in the proceedings below, are disturbed by indications in the 1975 rulings that the Board is extending its jurisdiction in a way that impinges upon state regulation of intrastate airlines. Neither airline which sought and obtained the exemptions, however, has challenged the Board orders. They do appear here as intervenors, one supporting petitioners, the other supporting the Board. The California airlines utilize Tahoe Valley Airport, physically located in California, for their Nevada service. When it granted the 1975 exemptions the Board announced that “in our view air service at Lake Tahoe is interstate in nature by definition.” It is to this observation that petitioners object, complaining it constitutes a determination which threatens to limit their jurisdiction. The initial question is whether, in light of the Board’s 1976 action opening the issues for fuller inquiry, this 1975 dicta creates a case or controversy which this Court can or should attempt to resolve. We hold that it does not and affirm the Board’s orders. Without the benefit of a full hearing or investigation the Board in 1975 unnecessarily chose to announce its attitude about the nature of air service in the Lake Tahoe area. However, a year later the Board apparently had further thoughts since it ordered a full-scale investigation to determine on an evidentiary record which aspects of Lake Tahoe air service will be deemed interstate in nature. The premature announcement of the Board’s “view” was unfortunate because it suggests a predisposition that might lead observers to question the bona fides of the now pending inquiry into Lake Tahoe air service. Thus, it is understandable that petitioners who have a real stake in the outcome of the investigation prefer to have the issue resolved immediately. However, this is not possible. We cannot say with assurance wljat aspects of Tahoe air service, if any, will eventually be judged by the Board to be interstate in nature. • Certainly we cannot know, let alone evaluate, the factual [136] bases for such determinations, and the expertise of the Board will undoubtedly throw considerable light on the underlying legal principles. So while there is some temptation to confront the issue, this action would be unwise as well as premature. A full record is now being developed. There later will be ample opportunity to define the legal principles differentiating interstate from intrastate air service in the Tahoe region based on solid factual premises. The parties here are also parties to the pending Board investigative proceedings. They will have an opportunity for full participation in the developing decision. The fact that the Board spoke too soon and too loosely does not mandate judicial review at this time. There is an obvious need for a fuller record to settle the underlying jurisdictional dispute between these parties. That is, in fact, precisely what is being constructed and we are unwilling to interfere. The subject appeal is not timely. The issue is presently too theoretical and abstract. The decisions of the Board granting exemptions are affirmed, but in so doing the Court is neither approving nor disapproving the “view” expressed in the 1975 Board orders. Affirmed. Footnotes [1] Order 75-6-135 (issued June 27, 1975); Order on Reconsideration, Order 75-9-78 (issued September 22, 1975). [2] Pursuant to 49 U.S.C. § 1386(b)(1). [3] Order 76-3-114 (issued March 16, 1976). [4] This investigation will provide data relevant to both limitations which were temporarily imposed. These were prohibitions on (1) engaging in inter-airline ticketing or baggage transfer, and (2) extending air service beyond those points named in the exemption by connecting Tahoe flights with their intrastate systems, i.e., “tacking”.