The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 12, 2026
2026COA14
No. 25CA0836, Town of Superior v. Board of County Commissioners of Jefferson County — Constitutional Law — Federal Supremacy — Preemption; Remedies — Injunctive Relief
A division of the court of appeals holds that federal law
preempts a claim for injunctive relief requiring an airport to ban
certain aircraft operations to abate aircraft noise. Under City of
Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638 (1973),
state and local regulation of aircraft noise is preempted by federal
law. And although the proprietor of an airport retains authority to
impose certain noise restrictions in its role as airport proprietor, a
state court may not order it to do so because such an injunction
would constitute impermissible local control over aircraft noise. The division remands the case to the district court to
determine whether the plaintiffs’ request for an injunction to abate
lead emissions is preempted by the Clean Air Act, 42 U.S.C. § 7573. COLORADO COURT OF APPEALS 2026COA14
Court of Appeals No. 25CA0836 Boulder County District Court No. 24CV30221 Honorable Stephen E. Howard, Judge
Town of Superior, a municipal corporation of the State of Colorado, and the Board of County Commissioners of the County of Boulder, Colorado, a county government in the State of Colorado,
Plaintiffs-Appellants,
v.
The Board of County Commissioners of the County of Jefferson, Colorado, as successors in interest to the Jefferson County Airport Authority, and Erick Dahl, in his official capacity as Airport Director of the Rocky Mountain Metropolitan Airport,
Defendants-Appellees.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE SCHOCK Grove and Yun, JJ., concur
Announced March 12, 2026
Greenberg Traurig, LLP, John A. Wharton, Andrew D. Barr, Elliot Anderson, Denver, Colorado, for Plaintiffs-Appellants
Kaplan Kirsch LLP, W. Eric Pilsk, Steven L. Osit, Denver, Colorado, for Defendants-Appellees ¶1 Federal law generally preempts state and local regulation of
aircraft noise. See City of Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624, 638 (1973). But an airport proprietor retains the
authority to impose noise restrictions at its airport — even when the
proprietor is a governmental entity. See Arapahoe Cnty. Pub.
Airport Auth. v. Centennial Express Airlines, Inc., 956 P.2d 587, 595
(Colo. 1998). The question in this case is whether a state court,
consistent with principles of federal preemption, may order the
proprietor to exercise that authority. We conclude that it cannot.
¶2 Plaintiffs, the Town of Superior (Superior) and the Board of
County Commissioners of Boulder County, allege that certain
aircraft operations at the nearby Rocky Mountain Metropolitan
Airport (the Airport) cause excessive noise and hazardous lead
exposure for their residents. They sued defendants, the Board of
County Commissioners of Jefferson County and Erick Dahl, in his
official capacity as Airport Director of the Airport (collectively,
Jefferson County), under a public nuisance theory, requesting an
injunction requiring them to prohibit such operations. The district
court dismissed the action on grounds of federal preemption.
1 ¶3 We agree with the district court that plaintiffs’ request for an
injunction to abate aircraft noise is preempted by the pervasive
federal scheme of aviation noise regulation, as recognized in City of
Burbank. But City of Burbank does not resolve the pollution-based
component of plaintiffs’ claim. And the district court did not
address Jefferson County’s argument that the federal Clean Air Act,
42 U.S.C. § 7573, preempts a ban on aircraft operations to abate
lead emissions.
¶4 We therefore (1) affirm the order to the extent it dismissed
plaintiffs’ request for an injunction to abate aircraft noise;
(2) reverse the order to the extent it dismissed plaintiffs’ request for
an injunction to abate lead emissions; and (3) remand the case to
the district court for further consideration of whether the lead
emissions portion of plaintiffs’ claim is preempted by federal law.
I. Background
¶5 The Airport is located in, and owned and operated by,
Jefferson County. Superior is less than a mile away, primarily in
Boulder County. Aircraft departing the Airport from its primary
runways fly over Superior and Boulder County upon takeoff.
2 ¶6 Four flight schools operate at the Airport using piston engine
aircraft — a type of small plane that is generally used for flight
training or recreation. Unlike most other types of aircraft, piston
engine aircraft typically use fuel that contains lead.
¶7 A common flight training maneuver is called a “touch-and-go.”
In a touch-and-go operation, an aircraft lands and immediately
takes off again without stopping. The operation is often repeated
several times within a single flight. Because an aircraft gets closer
to the end of the runway in a touch-and-go than in a typical takeoff,
the aircraft flies over Superior at a lower altitude and lower speed
than it otherwise would. Plaintiffs allege that this results in
excessive noise and hazardous lead exposure for their residents.
¶8 Plaintiffs sued Jefferson County for causing a public nuisance,
seeking to enjoin touch-and-go operations by piston engine aircraft
at the Airport. Jefferson County moved to dismiss the complaint
under C.R.C.P. 12(b)(5) based on federal preemption. Citing City of
Burbank, 411 U.S. at 638, it argued that federal law preempts state
and local regulation of aircraft operations, noise levels, and
emissions. Plaintiffs responded that their requested injunction fell
under the “proprietor’s exception,” which they argued allows airport
3 proprietors to impose restrictions to abate a nuisance that a state
or local government could not impose pursuant to its police power.
¶9 The district court granted the motion to dismiss. It concluded
that federal law preempts any local or state limitation on aircraft
flight operations, including as to noise or pollution. And it ruled
that a court order enjoining touch-and-go operations would
constitute such a local regulation. Addressing plaintiffs’ argument
about Jefferson County’s proprietary rights, the court explained
that “the ability of [the district] court to issue an injunction is a
different issue than whether a proprietor can choose to limit noise
or pollution. . . . [T]he fact that the defendants could impose noise
restrictions does not mean that the court can order them to do so.”
II. Noise Abatement
¶ 10 Plaintiffs contend that the district court erred by concluding
that their claim for injunctive relief is preempted by federal law
governing aviation noise. Although they concede that federal law
preempts state and local governments’ use of their police powers to
regulate airport noise, they argue that Jefferson County has the
authority as the airport proprietor to impose noise restrictions.
From this premise, they posit that the district court could order
4 Jefferson County to do what it has the power to do on its own. It is
this final step in plaintiffs’ argument with which we disagree.
A. Preemption Principles and Standard of Review
¶ 11 The Supremacy Clause of the United States Constitution gives
Congress the power to preempt state law. Cnty. Comm’rs v. Suncor
Energy USA, Inc., 2025 CO 21, ¶ 33, cert. granted, ___ U.S. ___,
2026 WL 490537 (Feb. 23, 2026) (No. 25-170). In determining
whether state law is preempted, the “ultimate touchstone” is
Congress’s intent. Fuentes-Espinoza v. People, 2017 CO 98, ¶ 22
(citation omitted). We will not presume that federal law preempts
“the states’ historic police powers” — particularly in “a field that
states have traditionally occupied” — unless “the law reveals
Congress’s clear and manifest purpose to do so.” Suncor, ¶ 34.
¶ 12 There are three types of preemption. First, “state law is
expressly preempted when a federal statute contains an express
preemption provision.” Id. at ¶ 36. Second, field preemption occurs
when “Congress intended the federal government to occupy a field
of law exclusively,” which may be demonstrated by (1) a framework
of federal regulation “so pervasive” that it leaves “no room for states
to supplement it,” or (2) a federal interest “so dominant that the
5 federal system will be assumed to preclude enforcement of state
laws on the same subject.” Id. at ¶ 37. Third, conflict preemption
applies when a state law “actually conflicts with federal law” or
“stands as an obstacle to the accomplishment and execution of
Congress’s purposes and objectives.” Id. at ¶ 38.
¶ 13 We review de novo the district court’s ruling on a C.R.C.P.
12(b)(5) motion to dismiss. Id. at ¶ 25. In doing so, we accept all
material factual allegations in the complaint as true and view them
in the light most favorable to the plaintiff to determine whether the
complaint states a plausible claim for relief. Id. Federal preemption
is an issue of law that we review de novo. Fuentes-Espinoza, ¶ 20.
B. Preemption of Local Noise Regulations
¶ 14 Plaintiffs do not seriously contest the premise that federal law
preempts state and local aviation noise restrictions as a general
matter. Although they dispute the source and scope of that
preemption, they acknowledge that state and local governments
cannot regulate aircraft noise via their police powers. We agree.
¶ 15 The Federal Aviation Act of 1958 gives the United States
government “exclusive sovereignty of airspace of the United States.”
49 U.S.C. § 40103(a)(1). In City of Burbank, the Supreme Court
6 held that this and other federal statutes create a “comprehensive
scheme of federal control of the aircraft noise problem” that
preempts state and local control. 411 U.S. at 629, 633. The Court
noted the lack of any express statutory preemption provision. Id. at
633. It also recognized that noise control is “deep-seated in the
police power of the States.” Id. at 638. But it nevertheless
concluded that the federal government’s “pervasive control” over
aircraft noise “leave[s] no room for . . . local controls.” Id.1
¶ 16 Since City of Burbank, courts have consistently held that state
and local aviation noise restrictions are preempted by federal law.
See, e.g., Friends of E. Hampton Airport, Inc. v. Town of East
Hampton, 841 F.3d 133, 139 (2d Cir. 2016); S.D. Unified Port Dist. v.
1 The parties dispute the applicability and relevance of other federal
statutes relating to aircraft operations and noise. See 49 U.S.C. § 41713(b)(1) (prohibiting state or local law “related to a price, route, or service of an air carrier”); 49 U.S.C. §§ 47521(3), 47523, 47524 (providing for the creation of a “national aviation noise policy” for certain aircraft); 49 U.S.C. § 47107(a)(1) (conditioning grant funds on assurance that airport “will be available for public use on reasonable conditions and without unjust discrimination”). Because City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 638 (1973), unequivocally holds that local aviation noise regulations are preempted, and because plaintiffs do not attempt to challenge or distinguish that holding, we need not address the extent to which subsequent legislation reinforces that holding.
7 Gianturco, 651 F.2d 1306, 1315 n.22 (9th Cir. 1981) (“The
proposition that the federal government has preempted the area of
flight control regulation to eliminate or reduce noise has been
accepted without contrary authority by numerous courts which
have addressed the subject.”); see also French v. Pan Am Express,
Inc., 869 F.2d 1, 6 (1st Cir. 1989) (noting that City of Burbank held
that “aircraft noise was wholly subject to federal hegemony, thereby
preempting state or local enactments in the field”); cf. Bieneman v.
City of Chicago, 864 F.2d 463, 472-73 (7th Cir. 1988) (holding that
“regulation” is preempted but allowing limited claims for damages).
¶ 17 In light of City of Burbank, it appears to be beyond dispute
that a state law or local ordinance prohibiting touch-and-go
operations at the Airport to abate aircraft noise would be preempted
by federal law. Indeed, plaintiffs make no argument to the contrary.
C. Proprietor’s Exception
¶ 18 There is also no real dispute about the second step in our
analysis: A governmental entity that owns and operates an airport
may, in its role as airport proprietor, impose restrictions to regulate
noise that it could not impose through the exercise of its police
powers. See Arapahoe Cnty. Pub. Airport Auth., 956 P.2d at 595.
8 ¶ 19 This so-called “proprietor’s exception” emanates from an oft-
cited footnote in City of Burbank. In that footnote, the Court quoted
a letter from the Secretary of Transportation, which stated that
proposed federal legislation governing aviation noise control would
“not affect the rights of a State or local public agency, as the
proprietor of an airport, from issuing regulations or establishing
requirements as to the permissible level of noise which can be
created by aircraft using the airport.” City of Burbank, 411 U.S. at
635 n.14 (citation omitted). The Court went on to clarify that a
municipality’s authority “as a landlord is not necessarily congruent
with its police power.” Id.
¶ 20 In Arapahoe County Public Airport Authority, the Colorado
Supreme Court recognized the “proprietor’s exception,” citing City of
Burbank and other federal case law for the proposition that
“because they may be held liable for excessive noise, airport
proprietors may restrict aircraft operations to accommodate
permissible noise levels under the proprietor’s exception.” 956 P.2d
at 595. Other courts have likewise confirmed this proprietary
authority. See, e.g., Nat’l Helicopter Corp. of Am. v. City of New
York, 137 F.3d 81, 88-89 (2d Cir. 1998); Alaska Airlines, Inc. v. City
9 of Long Beach, 951 F.2d 977, 982 (9th Cir. 1991). And it has been
codified to a large degree in 49 U.S.C. § 41713(b)(3), which provides
that federal preemption of laws relating to an air carrier’s price,
route, or service “does not limit a State [or] political subdivision of a
State . . . from carrying out its proprietary powers and rights.”
¶ 21 Plaintiffs devote much of their appellate briefs to arguing that
the proprietor’s exception survives and is not preempted by other
federal statutes. But that much is clear, and Jefferson County does
not argue otherwise. Instead, Jefferson County primarily disputes
the scope of the proprietor’s exception and its applicability to the
circumstances of this case. Citing the admonition that an airport
proprietor’s role in regulating noise is “extremely limited,” Friends of
E. Hampton Airport, 841 F.3d at 139 (citation omitted), Jefferson
County suggests that it could not unilaterally ban touch-and-go
operations at the Airport. It argues that such a ban could infringe
on other federal laws and the terms of its federal grant agreements.
¶ 22 We need not decide whether the proprietor’s exception would
permit Jefferson County to prohibit touch-and-go operations at the
Airport because it did not do so. The question before us, which we
turn to below, is whether the district court could require it to
10 implement such a prohibition. We agree with the district court that
these are two different questions. We therefore assume, without
deciding, that Jefferson County has the authority as the airport
proprietor to prohibit touch-and-go operations if it chooses to do so.
D. Injunctive Relief
¶ 23 So far, we have done little more than lay out two baseline
premises on which the parties fundamentally agree — (1) state and
local governments cannot regulate aviation noise, and (2) airport
proprietors can (at least to some degree). Where the rubber hits the
road is on the conclusion that plaintiffs draw from those premises.
Specifically, they argue that because Jefferson County could ban
touch-and-go operations at the Airport as a noise abatement
measure, the district court can order it to do so. We disagree.
¶ 24 An injunction is not a restriction imposed by the airport
proprietor. It is a restriction imposed on the proprietor by the
district court. A state court can no more impose such a restriction
in an area of federal preemption than can a state or local legislative
body. See Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234, 1242
(7th Cir. 1985) (holding that request for injunctive relief based on
state law was preempted where it would interfere with federal
11 regulation); cf. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 515, 522
(1992) (holding that a federal statute barring any “requirement or
prohibition . . . imposed under State law” preempted state “common
law as well as statutes and regulations” (citation omitted)).
¶ 25 In other words, whatever authority Jefferson County has to
restrict touch-and-go operations at the Airport, the state — whether
through the executive, legislative, or judicial branch — cannot
compel it to adopt such a restriction. See Williams v. Marinelli, 987
F.3d 188, 198 (2d Cir. 2021) (“Although preemption often applies to
state statutes, preemption can also invalidate actions of state
executive branch officials and state courts that conflict with federal
law.”); cf. In re Marriage of Anderson, 252 P.3d 490, 494 (Colo. App.
2010) (holding that federal preemption divests state courts of power
to enforce private agreements that are inconsistent with federal
law). To do so would be to exert state governmental control over
aircraft noise — a result City of Burbank forbids. 411 U.S. at 638.
¶ 26 On this point, we are persuaded by Northeast Phoenix
Homeowners’ Ass’n v. Scottsdale Municipal Airport, 636 P.2d 1269
(Ariz. Ct. App. 1981). In that case, individuals living under the
flight path of low-flying aircraft sued the municipality that owned
12 and operated the nearby airport under a nuisance theory, seeking
injunctive relief to curtail the noise. Id. at 1270-72. As in this case,
the plaintiffs argued that the requested injunction fell within the
proprietor’s exception to federal preemption. Id. at 1273.
¶ 27 In rejecting this argument, the court first noted that the
proprietor’s exception allows “airport proprietors, whether they be
private or public entities, to voluntarily adopt noise-related
regulations regarding the operation of their airports and the aircraft
using their airports.” Id. (emphasis added). But it explained that
“rules mandated by a court through its injunctive powers would in
no sense emanate from the airport proprietor.” Id. at 1275. Rather,
such “judicially made rules and regulations” contravene City of
Burbank’s preemption holding, just as do state and local legislation.
Id. Thus, although an airport proprietor may choose to adopt noise
mitigation measures, a state court may not order it to do so based
on state law. Id.; see also Krueger v. Mitchell, 332 N.W.2d 733, 740
(Wis. 1983) (“[I]njunctions prohibiting such proprietorial decisions
are completely preempted . . . .”). We agree with this analysis.
¶ 28 Plaintiffs’ barrage of attacks on Scottsdale Municipal Airport all
miss their mark. For example, plaintiffs dispute its characterization
13 of an injunction as a “judicially made” regulation, but in doing so,
they elide the distinction between what an airport proprietor has
the legal authority to do and what a state court can make it do.
They chide Scottsdale Municipal Airport for failing to clearly identify
the source of federal preemption, but federal preemption in the area
of aviation noise is well established. See City of Burbank, 411 U.S.
at 638. And they note that City of Burbank concerned legislation
rather than an injunction, but they fail to explain why this matters
when federal law “leave[s] no room for . . . local controls.”2 Id.
¶ 29 They also criticize Scottsdale Municipal Airport for
distinguishing damages from injunctive relief, 636 P.2d at 1277,
2 Plaintiffs’ contention that Congress must expressly preempt state
injunctive relief is inconsistent with City of Burbank’s holding that preemption in this area is premised on field preemption. City of Burbank, 411 U.S. at 633. No express preemption provision is required when Congress has preempted the field. Cnty. Comm’rs v. Suncor Energy USA, Inc., 2025 CO 21, ¶ 37, cert. granted, ___ U.S. ___, 2026 WL 490537 (Feb. 23, 2026) (No. 25-170).
14 even though damages are not at issue in this case.3 Along the same
lines, they point out that Scottsdale Municipal Airport relied on a
case that was later overruled to the extent it precluded a claim for
damages — a point that, again, is immaterial since this case does
not involve damages. See Luedtke v. County of Milwaukee, 521 F.2d
387, 390-91 (7th Cir. 1975), cited with approval in Scottsdale Mun.
Airport, 636 P.2d at 1275, overruled in part by Bieneman, 864 F.2d
at 472 (overruling Luedtke to the extent it holds that damages are
preempted, but distinguishing damages from “regulation”).
¶ 30 None of these attempts to discount or distinguish Scottsdale
Municipal Airport undermine its fundamental holding that a state
court cannot do through an injunction what a state legislative body
could not — a conclusion that flows from City of Burbank itself.
¶ 31 Indeed, plaintiffs do not cite a single case in which a state
court has enjoined aircraft flight operations — or required an
3 Several cases have drawn a distinction between a claim for
injunctive relief and a claim for damages, with only the former being preempted. See, e.g., Bieneman v. City of Chicago, 864 F.2d 463, 472-73 (7th Cir. 1988); Krueger v. Mitchell, 332 N.W.2d 733, 739-40 (Wis. 1983); cf. Suncor, ¶ 59 (rejecting contention that claim for damages amounted to regulation). Because plaintiffs do not seek damages, we express no opinion as to whether such a claim would be preempted.
15 airport proprietor to do so — to abate aviation noise. Instead, the
cases on which they rely generally involve one of three scenarios
that are not implicated in this case: (1) a restriction imposed by the
airport proprietor itself, see Nat’l Helicopter, 137 F.3d at 89; Alaska
Airlines, 951 F.2d at 982; British Airways Bd. v. Port Auth., 558
F.2d 75, 83-84 (2d Cir. 1977); (2) a claim for damages, see
Bieneman, 864 F.2d at 472; Greater Westchester Homeowners Ass’n
v. City of Los Angeles, 603 P.2d 1329, 1335-36 (Cal. 1979); or (3) a
land use regulation prohibiting the use of property as an airport,
see Aviation Cadet Museum, Inc. v. Hammer, 283 S.W.3d 198, 201
n.2, 202-03 (Ark. 2008); Emerald Dev. Co. v. McNeill, 120 S.W.3d
605, 609 (Ark. Ct. App. 2003).4 To the extent any of these cases
could be read to suggest that a state court could order an airport
4 The closest plaintiffs come to invoking an on-point case is Wood v.
City of Huntsville, 384 So. 2d 1081, 1084-85 (Ala. 1980), which they cite once in a footnote string cite. But that case too involved an injunction on the use of property (as a helipad) — not on particular aircraft operations. See id. at 1083 (noting that state and local governments retain control over “ground usage”). To the extent its holding that “municipalities are authorized to regulate the operation of private airports,” id. at 1084, would allow local regulation of the operations at issue, even plaintiffs do not go that far.
16 proprietor to restrict flight operations to mitigate noise — and we do
not think they can — we disagree for the reasons above.
¶ 32 Finally, plaintiffs rely on 49 U.S.C. § 40120(c), which provides
that “[a] remedy under [the Federal Aviation Act] is in addition to
any other remedies provided by law.” But this provision simply
preserves remedies for otherwise actionable wrongs — such as acts
that violate federal standards or that lie outside the purview of
federal control. See Abdullah v. Am. Airlines, Inc., 181 F.3d 363,
375-76 (3d Cir. 1999) (“Federal preemption of the standards of care
can coexist with state . . . tort remedies.”); Bieneman, 864 F.2d at
473 (allowing common law remedies for “operations that offend
federal law, or that federal norms do not govern”). It does not allow
the state — whether by legislative or judicial fiat — to impose a
separate state law standard in an area of federal preemption.
¶ 33 Thus, insofar as plaintiffs’ request for injunctive relief sought a
state-law-based restriction on aircraft noise, the district court
correctly concluded that the claim was preempted by federal law.
III. Clean Air Act
¶ 34 Plaintiffs also alleged that their requested injunction was
necessary to abate the lead pollution caused by piston engine
17 aircraft performing touch-and-go operations at the Airport. The
district court did not separately address this aspect of plaintiffs’
claim, instead lumping it together with the noise claim and
concluding that federal law preempts all state or local limitations on
aircraft flight operations, including for noise or pollution.
¶ 35 But City of Burbank is limited to federal preemption of state
and local aviation noise control. 411 U.S. at 629, 633, 638. It says
nothing about federal preemption of state and local aviation
pollution control. And Jefferson County does not otherwise develop
any argument on appeal that federal law preempts that field.
¶ 36 Jefferson County contends that plaintiffs’ emissions claim is
expressly preempted by the Clean Air Act, 42 U.S.C. § 7573, which
precludes any state or local “standard respecting emissions of any
air pollutant from any aircraft or engine thereof” that differs from a
federal standard. But although Jefferson County argued this point
in its motion to dismiss, the district court did not address it.5
5 We reject plaintiffs’ argument that Jefferson County waived its
argument that plaintiffs’ claim is preempted by the Clean Air Act. Jefferson County raised the issue in its motion to dismiss “to such a degree that the court ha[d] the opportunity to rule on it.” Brown v. Am. Standard Ins. Co. of Wis., 2019 COA 11, ¶ 21.
18 ¶ 37 We recognize that we have discretion to address the issue in
the first instance, but for two reasons, we decline to do so. See
LTCPRO, LLC v. Johnson, 2024 COA 123, ¶ 46. First, the parties’
briefing of the issue in the district court and on appeal is scant,
with both parties effectively treating it as a tag-along issue to the
primary City of Burbank-based issue we address above. Second,
the controlling question — whether an emissions-based restriction
on aircraft operations is a “standard respecting emissions,” 42
U.S.C. § 7573 — is a novel one for which there does not appear to
be any on-point authority in Colorado or elsewhere. Under these
circumstances, resolution of the issue would benefit from further
development of the parties’ arguments and analysis by the district
court. See Doe v. Wellbridge Club Mgmt. LLC, 2022 COA 137, ¶ 30.
“After all, we are a court of review, not of first view.” Id. at ¶ 31.
¶ 38 We therefore remand the case to the district court for
consideration of Jefferson County’s argument that plaintiffs’
emissions-based claim is preempted by the Clean Air Act.
IV. Disposition
¶ 39 The dismissal of plaintiffs’ request for injunctive relief to abate
aircraft noise is affirmed. The dismissal of plaintiffs’ request for
19 injunctive relief to abate aircraft emissions is reversed, and the case
is remanded to the district court for further consideration of
whether that portion of plaintiffs’ claim is preempted by federal law.
JUDGE GROVE and JUDGE YUN concur.