AVIATION NOISE LAW
Gustafson v. City of Lake Angelus
Cite as: 76 F.3d 778


U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT

ROBERT GUSTAFSON, Plaintiff-Appellee/Cross-Appellant,
v.
CITY OF LAKE ANGELUS; DONALD ALTHOFF, Mayor of the City of Lake Angelus; MICHAEL STEFANI,
Chief of Lake Angelus Police Force, Defendants-Appellants/Cross-Appellees.

Nos. 93-2508/93-2537

March 20, 1995, Argued
February 27, 1996, Filed
Decided February 27, 1996

(Appeal from U.S. District Court for the Eastern District of Michigan, 92-73976, Paul V. Gadola, J.)


COUNSEL:

For ROBERT GUSTAFSON, Plaintiff - Appellee Cross-Appellant: Thomas M. Slavin, ARGUED, BRIEFED, [COR LD NTC ret], Steven M. Chait, BRIEFED, [COR ret], SULLIVAN, WARD, BONE, TYLER, FIOTT & ASHER, Southfield, MI.

For CITY OF LAKE ANGELUS, Defendant - Appellant Cross-Appellee: John D. Staran, BRIEFED, [NTC ret], James L. Howlett, ARGUED, [COR ret], BEIER & HOWLETT, BLOOMFIELD HILLS, Mi. For DONALD ALTHOFF, Mayor of the City of Lake Angelus, MICHAEL STEFANI, Chief of Lake Angelus Police Force, Defendants - Appellants Cross-Appellees: John D. Staran, (See above), [COR LD NTC ret].

For MICHIGAN MUNICIPAL LEAGUE, NATIONAL INSTITUTE OF MUNICIPAL LAW OFFICERS, Amicus Curiae: Koteless Alexander, BRIEFED, [ret], Alexander, Gebhardt, Aponte & Marks, Silver Spring, MD.

OPINION:

CONTIE, LEROY J., JR., Circuit Judge.

Defendants-appellants/cross-appellees, the City of Lake Angelus, Donald Althoff, Mayor of the City of Lake Angelus, and Michael Stefani, Chief of the Lake Angelus Police Force, appeal the district court's grant of summary judgment to plaintiff-appellee/cross-appellant, Robert Gustafson, holding that city ordinances prohibiting the operation of seaplanes on the surface of Lake Angelus are preempted by federal law. [FN 1] Plaintiff Gustafson cross-appeals from the district court's grant of summary judgment to defendants in regard to plaintiff's 42 U.S.C. 1983 and 1988 claims that the ordinances denied his due process and equal protection rights in violation of the Fourteenth Amendment and that he should be awarded attorneys fees. For the following reasons, we affirm in part and reverse in part.

[FN 1] The City of Lake Angelus's brief is supported on appeal by amici curiae, National Institute of Municipal Law Officers and Michigan Municipal League. Robert Gustafson's brief is supported on appeal by amicus curiae, Seaplane Pilots Association.]


I.

Plaintiff Robert Gustafson, a seaplane pilot, brought suit against defendants, the City of Lake Angelus (the "City") and various city officials, challenging city ordinances prohibiting the operation of seaplanes on the surface of Lake Angelus as preempted by federal law. Plaintiff sought declaratory and injunctive relief against enforcement of the ordinances. Plaintiff also presented a claim under 42 U.S.C. 1983 for the violation of his constitutional rights caused by enforcement of the ordinances and sought an award of attorneys fees pursuant to 42 U.S.C. 1988.

Plaintiff owns a waterfront home on Lake Angelus, an island lake in Oakland County, Michigan, that is approximately one and one-half miles long and three-quarters of a mile wide. The City of Lake Angelus is a residential community consisting of about 140 homes around the take and lies within the airport traffic area and control zone of the FAA air traffic control tower located at the Oakland-Pontiac airport.

Plaintiff Gustafson has been certified as a seaplane pilot by the Federal Aviation Administration ("FAA"). On August 9, 1991, plaintiff landed a rented seaplane on Lake Angelus and then docked and moored the plane at his home on the shore of the lake. Subsequently, a city police officer notified plaintiff that he had violated two city ordinances concerning seaplanes and warned him not to land his seaplane on the lake again. Plaintiff was not prosecuted for violating the ordinances.

Plaintiff was in violation of city ordinances 66(E) and 25(J). Ordinance 66(E) is an amendment to the City's zoning ordinance, which reads in relevant part: [FN 2]

4. 10. Nuisances prohibited. Land may not be used for any of the following purposes, all of which are declared to be public nuisances:

E. The mooring, docking, launching, storage, or use of any . . . aircraft powered by internal combustion engines . . .

Ordinance 25(J) is an amendment to the City's nuisance ordinance, and states that the following is a public nuisance:

J. The landing upon the lands, waters, or ice surface within the Village of Lake Angelus of any aircraft, airplane, sailplane, seaplane, helicopter, ground effect vehicle, or lighter than air craft.

[FN 2] When the suit was filed, ordinance 66 included an altitude regulation which prohibited flying over the City at altitudes less than 500 feet. Although the altitude regulation had never been enforced against plaintiff or anyone else, plaintiff Gustafson also challenged its validity. The City acknowledged that this provision was federally preempted and did not argue in support of its validity. The altitude regulation was subsequently deleted from ordinance 66 by amendment and is not at issue in this appeal.]

After plaintiff was warned not to land his seaplane on the lake, he asked the city council to rescind or modify the ordinances. In response to plaintiff s efforts, on September 10, 1991, the city council issued a resolution declaring that ordinances 25(J) and 66(E) were intended to 'protect the public health, safety, and general welfare' of the people and property of the City. The council listed 'noise, danger, apprehension of danger, pollution, apprehension of pollution, contamination and infestation from other bodies of water, destruction of property values, and interference with other lawful uses of the lake enjoyed by the great majority of citizens, including boating, sailing, fishing, swimming, and other recreational uses," as ways in which the welfare of the City was protected by the ordinances.

Plaintiff filed this action in the United States District Court for the Eastern District of Michigan, contending that the ordinances are preempted by federal and state law and that they violate his constitutional rights. He asked the court to: (1) declare that ordinances 25(J) and 66(E) are void, unenforceable, and unconstitutional pursuant to 28 U.S.C. 2201; (2) issue a permanent injunction enjoining defendants from enforcing the ordinances; and (3) award costs and attorneys fees to plaintiff pursuant to 42 U.S.C. 1988 for the alleged constitutional violations under 42 U.S.C. 1983.

On October 21, 1993, the district court heard the parties' cross-motions for summary judgment and plaintiff's motion for declaratory judgment and a permanent injunction. On October 22, 1993, the district court issued an opinion. Pursuant to 28 U.S.C. 2201, the court found that ordinances 25(J) and 66(E) governing the operation of seaplanes on the surface of Lake Angelus are preempted by federal law. The court granted plaintiff Gustafson's motion for summary judgment on this issue and issued a permanent injunction against the City from enforcing the ordinances.

However, in regard to plaintiff s claim under 42 U.S.C. 1983 for violations of his constitutional rights, the court granted the City's motion for summary judgment. The court stated that even though it had decided the case based on federal preemption, the court would address the section 1983 claim in order to determine if plaintiff was deserving of costs and attorneys fees under 42 U.S.C. 1988. After examining plaintiff's constitutional claims, the court found they were without merit. The court determined that plaintiff failed to show that his due process or equal protection rights were violated and that he made no showing that the ordinances were overbroad, ambiguous, or vague. In addition, the court found that in order to support the ordinances, the City had presented multiple rationales, which were rationally related to legitimate government interests. For these reasons, the court granted the City's motion for summary judgment on plaintiff's 42 U.S.C 1983 claim and determined that plaintiff should not be awarded costs and attorneys fees pursuant to 42 U.S.C. 1988.

Defendants filed a timely notice of appeal in regard to the district court's issuance of a permanent injunction prohibiting the City from enforcing the ordinances against the operation of seaplanes on the surface of Lake Angelus. Plaintiff Gustafson filed a cross-appeal, challenging the portions of the district court's opinion that found no violation of due process or equal protection rights pursuant to 42 U.S.C. 1983 and denied costs and attorneys fees pursuant to 42 U.S.C. 1988.

II.

We must first decide whether the district court erred in determining that the City of Lake Angelus ordinances 25(J) and 66 (E), which prohibit the operation of seaplanes on the surface of Lake Angelus, are preempted by federal law.

The doctrine of preemption springs from the Supremacy Clause of the Constitution: "the Constitution and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." U.S. Const., art. VI, cl. 2; Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152, 73 L. Ed. 2d 664, 102 S. Ct. 3014 (1982). As interpreted by Chief Justice Marshall, "in every case, the act of Congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must yield to it." Gibbons v. Ogden, 22 US. (9 Wheat.) 1, 6 L. Ed. 23 (1824). Preemption is predicated on congressional intent. The will of Congress to monopolize an area of legislation may be expressed in the authorizing statute and in the regulations enacted pursuant to that statute. Hillsborough County, Florida v. Automated Medical Labs., Inc., 471 US. 707, 713, 85 L. Ed. 2d 714, 105 S. Ct. 2371 (1985).

A statute may be construed as preemptive under three circumstances. Id. First, Congress, in enacting a federal statute, may express a clear intent to preempt state law. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Common, 461 US. 190, 203, 75 L., Ed. 2d 752, 103 S. Ct. 1713 (1983). Second, absent express preemption, federal law may have an implied preemptive effect if Congress revealed this intent by "occupying the field" of regulation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984). There is implied preemption when there is a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" or "because the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Fidelity Federal Savings & Loan Assn, 458 US. at 153. There is a third type of preemption when state law actually conflicts with federal law. Such conflict occurs where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 85 L. Ed. 581, 61 S. Ct. 399 (1941).

The focus of a preemption inquiry is on congressional intent. In the present case, we must determine whether Congress, in passing the Federal Aviation Act, 49 U.S.C. 40101-41901 [formerly 49 U.S.C. 1301-1557] [FN 3] intended to preempt the right of a local government to designate and regulate aircraft landing areas, specifically seaplane landings on a lake. Plaintiff concedes that Congress has not expressly spoken on this issue, but argues that the City's ordinances arc preempted under the second prong of the preemption doctrine - - pervasive federal regulation of the field.

[FN 3] On July 5. 1994, Congress restated the laws related to transportation in one comprehensive title. The former Code sections are provided in brackets.

The district court in Gustafson v. City of Lake Angelus, 856 F Supp. 320 (E.D. Mich. 1993) found that the dictates of the Federal Aviation Act ("the Act") and the regulations enacted pursuant to it implied that Congress intended that the designation of landing sites for seaplanes is preempted by federal law. The district court found that former section 1508(a) of the Act stated: 'The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States. . . ." Furthermore, the district court found that Congress expressly directed the formulation of comprehensive regulations governing aircraft operations pursuant to former sections 1348(a) & (c), and therefore, the ordinances at issue are preempted by federal law.

It is true that the Act indicates that the FAA has exclusive authority in regulating the airspace over the United States. Section 40103(b)(1) [former 1348(a)] reads in relevant part:

The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.

49 U.S.C. 40103(b)(1)(emphasis added). Section 40103(b)(2) [former 1348(c)] provides as follows:

The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for --

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace efficiently; and

(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.

49 U.S.C. 40103(b)(2) (emphasis added). However, we believe the United States' sovereign regulation of the airspace over the United States and the regulation of aircraft in flight is distinguishable from the regulation of the designation of plane landing sites, which involves local control of land (or, in the present case, water) use.

The district court's analysis that ordinances 66(E) and 25(3) are preempted by federal law relied heavily upon the Supreme Court's opinion in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 36 L. E,d. 2d 547, 93 S. Ct. 1854 (1973). In Burbank, the Supreme Court stated that in light of the pervasive nature of the scheme of federal regulation of aircraft noise, the FAA, in conjunction with the Environmental Protection Agency ('EPA'), has full control over aircraft noise, preempting state and local regulation. Id. at 638. Therefore, the Supreme Court held that the City of Burbank could not use municipal curfews to impose noise regulations on aircraft operations. In the present case, the district court relied on the Supreme Court's language in Burbank, which stated that the FAA has broad authority to regulate the use of the navigable airspace, in holding that the City's ordinances are preempted under the second prong of the preemption doctrine -- pervasive federal regulation of the field.

We believe the district court read Burbank much too broadly in finding it to be dispositive in the present case. The district court failed to comprehensively examine the federal statutes and regulations pertaining to aircraft landing areas in order to glean the existence of preemptive pervasiveness, which is the proper approach established by the Supreme Court in Burbank. When the Court in Burbank turned to the FAA regulations to determine federal pervasiveness in the regulation of aircraft noise, it discovered: (1) the existence of express language in a Senate Report, which stated that 'States and local governments are preempted from establishing or enforcing noise emission standards. . . ."; (2) the existence of two agencies, the EPA and the FAA, with control over aircraft noise; and (3) the imposition of a variety of regulations governing noise by the Administrator of the FAA. Id. at 628-34. The Court in Burbank focused upon the fact that the Federal Aviation Act, the attendant regulations, the legislative history of the Act, the Noise Control Act, and the EPA clearly identified noise regulation as a field fully regulated by the federal government. The combination of these factors made it obvious that in regard to noise control, Congress intended to occupy the field of regulation. ld. at 638. Based on this evidence of pervasiveness, the Court in Burbank determined that aircraft noise was so comprehensively and strictly regulated by the federal government that it precluded enforcement of state or local laws on the same subject. Id. at 638-39.

In contrast, in the present case, an examination of the Federal Aviation Act and regulations concerning seaplanes and aircraft landing sites indicates that the designation of plane landing sites is not pervasively regulated by federal law, but instead is a matter left primarily to local control. In contrast to the pervasive scheme of federal regulation of aircraft noise found in Burbank. we fail to identify any language in the Act, the regulations promulgated pursuant to the Act, or the legislative history of the Act, which by implication preempts enforcement of the City's ordinances prohibiting the operation of seaplanes on Lake Angelus.

The applicable statutes and regulations indicate the following. In regard to federal preemption, the Act states:

(b) Preemption.--(1) Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

49 U.S.C. 41713(b)(1) [former 1305(a)(1)]. The plain language of 41713(b)(1) expressly prohibits States from regulating aviation rates, routes, or services, but the City of Lake Angelus ordinances do not infringe on these expressly preempted fields. The FAA has acknowledged that land use matters within the federal aviation framework are intrinsically local. For example, the regulation concerning the procedures governing the establishment of a civil airport indicates the following: [FN 4]

FAA determinations.

(a) The FAA will conduct an aeronautical study of an airport proposal and, after consultations with interested persons, as appropriate, issue a determination to the proponent and advise those concerned of the FAA determination. . . . While determinations consider the effects of the proposed action on the safe and efficient use of airspace by aircraft and the safety of persons and property on the ground, the determinations are only advisory.

. . . A determination does not relieve the proponent of responsibility for compliance with any local law, ordinance or regulation, or state or other Federal regulation. Aeronautical studies and determinations will not consider environmental or land use compatibility impacts.

[FN 4] Anyone proposing to establish a new airport is required to notify the Department of Transportation before any consideration or use begins. 14 C.F.R. 157.3. In its review of an airport proposal, the FAA considers the following: the effects the proposed action would have on existing or contemplated traffic patterns of neighboring airports; the effects the proposed action would have on the existing airspace structure and projected programs of the FAA; and the effects that existing or proposed manmade objects (on file with the FAA) and natural objects within the affected area would have on the airport proposal. 14 C.F.R. 157.7(a).]

14 C.F.R. 157.7(a) (emphasis added). Clearly, the FAA defers to local zoning ordinances, since this regulation requires the establishment of an airport in compliance with a municipality's land use plan. As the regulation states, the proponent of the establishment of an airport must comply with any local law, ordinance or regulation. [FN 5] Moreover, the regulation indicates that environmental impact and land use compatibility are matters of local concern and will not be determined by the FAA. Thus, in contrast to Burbank, in which the Supreme Court stated that the FAA made clear its intent to pervasively regulate aircraft noise, FAA regulation 14 C.F.R. 157.7 indicates that the FAA does not intend to pervasively regulate the designation of the location of airports. We find no regulations governing the designation of the location of private airfields or seaplane landing sites. Under 14 C.F.R. 157.7, the FAA recognizes that within the federal aviation framework, local zoning ordinances governing land use must be complied with. We believe this rationale applies in the present case, which concerns water use. Under the general provisions of the Act, an airplane landing area is defined as follows:

"landing area" means a place on land or water, including an airport or intermediate landing field, used, or intended to be used, for the takeoff and landing of aircraft, even when facilities are not provided for sheltering, servicing, or repairing aircraft, or for receiving or discharging passengers or cargo.

[FN 5] The definition of airport includes a "seaplane base." 14 C.F.R. 157.2.]

49 U.S.C 40102(28) [former 1301(27)] (emphasis added). Since a landing area includes a body of water, we find no merit to plaintiff s argument that "the inland waters," such as Lake Angelus, are part of the navigable airspace of the United States over which the federal government exerts preemptive control. The inland waters are part of the earth's surface, and water (as well as land) use compatibility are matters of local control.

The district court relied on two federal regulations concerning the operation of aircraft on the surface of the water to find pervasive preemption of the field. We disagree with the district court's analysis in this regard. 14 C.F.R. 91.115(a) states:

Right-of-way rules: Water operations.

(a) General. Each person operating an aircraft on the water shall, insofar as possible, keep clear of all vessels and avoid impeding their navigation, and shall give way to any vessel or other aircraft that is given the right-of way by any rule of this section.

This regulation pertains to the safe operation of seaplanes in order to avoid collisions and contains no specifications for seaplane landing sites. 14 C.F.R. 91.119 states:

Minimum safe altitudes: General

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

This regulation is also directed to the operational safety of seaplanes, not to the designation of landing areas or restrictions on access rights. We do not believe these two regulations pertaining to "right of way rules and 'minimum safe altitudes' illustrate an intent by Congress to pervasively regulate the field and to exert exclusive federal control over seaplane landing sites. To the contrary, there is no scheme of federal regulation designating locations for seaplane landings. The district court confused federal regulation of "The navigable airspace" and "the flight of aircraft" with regulation of use of the water surface itself, and erred in viewing the City's ordinances as pertaining to aircraft operations rather than to municipal water use. Because there is no pervasive, extensive, or complete federal regulatory scheme that controls seaplane landing sites, we find that no reasonable inference may be drawn under the second prong of the preemption doctrine that Congress left no [*20] room for the states or local governments to regulate in this area. See Hillsborough County, Florida, v. Automated Medical Labs., Inc., 471 US. 707, 719-20, 85 L. Ed. 2d 714. 105 S. Ct. 2371 (1985).

Moreover, there is nothing in the City's ordinances which conflicts with or impedes the objectives of federal law under the third prong of the preemption doctrine. For example, the portion of ordinance 25(J) that prohibits "the landing upon the lands, waters, or ice surface within the Village of Lake Angelus of any aircraft" does not make compliance with federal aviation law impossible or create obstacles to the attainment of federal goals. The pertinent language in the ordinances does not impinge upon the 'exclusive sovereignty of airspace of the United States,' 49 U.S.C. 40103(a)(1) [former 1508(a)], nor does it interfere with the congressional mandate to insure the safety of aircraft and the efficient utilization of airspace pursuant to 49 U.S.C. 40103(b)(2) [former 1348(c)]. Instead, the ordinances are limited to the regulation of the lake surface within the borders of the City. and there is no conflict with federal law. The prohibition against landing seaplanes on Lake Angelus does not inhibit in a proscribed fashion that which is preempted by federal law -- the free transit of the navigable airspace -- but instead restricts local water use, which is not preempted by federal law.

Continued in Part Two