The opinion of the court was delivered by: METZNER
Defendant, the Administrator of the Federal Aviation Agency (FAA), has moved pursuant to Fed.R.Civ.P. 12 and 56 for an order dismissing the complaint for lack of jurisdiction, or in the alternative for summary judgment.
The plaintiff manages the Dutchess County Airport under contract from the defendant county. The contract provides, in part, that the plaintiff has the exclusive right to sell gasoline and oil at the airport. The FAA has determined that the exclusivity clause violates the Federal Aviation Act.
The plaintiff seeks a declaratory judgment that the Administrator's determination that the contract between plaintiff and the county violates federal law be declared null and void and that the Administrator be restrained from taking any action pursuant to that determination.
The plaintiff asserts that the Chief of the New York Area Airport Branch of the FAA has indicated that the clause violates the terms of the deed by which the airport was conveyed to the county, that the transfer is in "default," that the county will not receive future federal grants-in-aid, and that he has threatened reversion in an effort to get the county to breach its contract with plaintiff.
The Administrator asserts that his determination is not subject to judicial review and that all he has indicated to date is to determine that the airport is not eligible for future federal grants-in-aid because of the exclusive dealing provision. Dutchess County, which seems to be a nominal defendant herein, agrees with plaintiff that reverter has been threatened.
The question presented for determination is whether the action of the Administrator in determining that the exclusivity clause is prohibited by statute or regulation, is reviewable by the court.
Some background as to the acquisition of the airport by the county in 1947 will aid in the understanding of the respective positions of the parties. Shortly after the Second World War the federal government disposed of hundreds of small airports, pursuant to the Surplus Property Act of 1944 (58 Stat. 765). They were given by quitclaim deed to local governments. All deeds were subject to certain reservations and restrictions in favor of the United States, including:
"7. That no exclusive right for the use of any landing area or air navigation facilities, as such terms are defined in W.A.A. Regulation 16, included in the above-described real estate, shall be granted or exercised."
Regulation 16 defines "landing area" as
"land * * * together with improvements thereon and necessary operational equipment used in connection therewith, which is used for landing, take-offs, and parking of aircraft. The term includes, but it is not limited to runways, strips, taxiways and parking aprons." 10 Fed.Reg. 14204 (Nov. 17, 1945).
A statute permitting the grantees of surplus airports to allow the exclusive right to sell gasoline and oil was added to the Surplus Property Act on July 30, 1947, three months after the airport was transferred to Dutchess County, 50 App. U.S.C. § 1622(g)(2)(C)(2).
At the time of the transfer the Civil Aeronautics Act of 1938, ch. 601, § 303, 52 Stat. 986, provided, in relation to federal grants-in-aid, that:
"There shall be no exclusive right for the use of any landing area or air navigation facility upon which ...