What Part Of 'Federal Preemption' Did They Not Understand?

By H. Bruce Brandon

The city of Morris, IL and a group of aerobatic pilots have gotten into a dust-up over where the pilots of IAC Chapter 1 based at C09 can practice their maneuvers. According to court documents (yes, this is a federal case), the city passed an ordinance in 1999 adopting the Morris Municipal Airport Rules and Regulations which required that all aeronautical activity be conducted in conformance with the FARs. The ordinance allowed the airport manager, fire marshal, building and zoning officer, and the police department to enforce the ordinance. So far, so good.

The Rub

IAC Chapter 1 went to the FAA requesting a waiver to 14 CFR 91.303 to move their practice area to a location that the airport didn’t like. This is when it “hit the fan”.

Reading between the lines of Federal Court U.S. District court ruling strong personalities and emotions took over as a result of this disagreement.

According to The Court:
The plaintiffs, Chapter 1 of the International Aerobatics Club and one of its members, Nicholas Scholtes, claim that the City of Morris is impermissibly regulating flight—which, they contend, only the Federal Aviation Administration can do—and is maliciously and arbitrarily threatening the Club’s members with prosecution under a local ordinance and regulations. Scholtes was in fact prosecuted for a violation of the Morris ordinance, although the charge eventually was dropped.

Here, the plaintiffs do allege facts sufficient to make plausible, if barely, the threat of imminent prosecutions and ongoing injury as of the time of Amended Complaint, which was filed after the Practice Area was relocated. [citations omitted].

For example, they assert that Vogen threatened that any pilot who supports Chapter 1 or its practice area “could lose their ability to fly at the Morris airport”; that Vogen threatened to throw Chapter 1 members out of the airport and ground their plans “if he feels, in his opinion, that they have done any unsafe maneuvers while flying”; and that Chapter 1 members do not practice even within the designated practice area out of fear of “being the subject of an ordinance violation proceeding initiated by Defendants for violating the Morris Ordinance and Regulations.” . [citations omitted].

This proceeding is at the preliminary stage and all the facts have yet to be developed for the court to render a final opinion on all the merits of the case. The court did, however render a ruling that is very important for pilots on the preemption claim and is a good lesson on why the FAA calls all the shots in aviation.

“Because the FAA does not expressly preempt state regulation of air safety ..., FAA ‘preemption, if any, must be implied,” under the doctrine of conflict preemption or field preemption. . [citations omitted]. Here, where the ordinance is coextensive with FAA regulations, conflict preemption is not at issue, leaving only the question whether “federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” . [citations omitted]).
 
There can be no question that the Federal Aviation Authority has comprehensive, plenary authority to regulate flight in the national airspace. The FAA was enacted to create a “uniform and exclusive system of federal regulation” in the field of air safety. . [citations omitted] (explaining that the FAA “was passed by Congress for the purpose of centralizing in a single authority-indeed, in one administrator-the power to frame rules for the safe and efficient use of the nation’s airspace.”). Accordingly, some courts have held that federal regulation occupies the field of air safety, to the exclusion of state (and local) regulation. . [citations omitted] The Seventh Circuit has not yet decided the issue, although its decision in Hoagland takes for granted the preemption of local laws affecting federal airspace. [citations omitted] (observing that issues relating to “the safe and efficient use of the airspace” around an airport are the sort of issues that the FAA preempts).

The Court goes on to decide other preliminary matters and eventually, if the case isn’t settled, there will be a trial on the surviving issues.

While it is not possible to predict outcomes from any trial, much less one that all the evidence has not been reviewed, it seems this court is hostile to the issuing of “tickets” to pilots by municipal employees for activities that the FAA controls.

It has been long standing law that the FAA has exclusive control over aviation via the legal term “field preemption”. While 49 USC § 40103 does give the United States government exclusive sovereignty over airspace of the United States, it doesn’t expressly preempt state and local control of aviation. Courts have long held that the laws, rules and regulations promulgated by the Federal government are so pervasive that there is no room, at all, left for state or local governments to legislate in this area [e.g. City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973) While local government controls zoning and can restrict where airports are located, these governments cannot control the activities of aviation. Only the FAA controls and enforces aviation activity.

Stop and think what the alternative would be. Imagine going on a flight, following the FARs and having the airport manager issuing you a “ticket” because he/she didn’t like where you went or what you did in the air?

Now that is scary.

H. Bruce Brandon is a retired airline captain and adjunct professor of Aviation Law at the Wake Forest School of Law.

FMI: http://Aviationbarristers.com