Branning v. United States (continued)


The Tracor study was completed by May 14, 1973. Plaintiff acquired the property in suit on November 28, 1973. As of May 14, 1973, there had been, on the average, 1,222 FMLP operations per month. Those operations normally occurred within one 5-day week for F-4 and A-4 aircraft, and within two 5-day weeks for AV-8A [FN 7] aircraft. All such operations were under VFR and no aircraft but the A-4, F-4, and AV-8 performed the FMLP operation.

[FN 7] The AV-8, however, did not fly the same "racetrack" FMLP pattern over plaintiff's property since that aircraft operates on a vertical takeoff principle.
The 1973 study reported that the average number of F-4 and A-4 FMLP operations were equal, i. e., 389 each, per month, based on one 5-day week, each, per month. Also, at that time 29 percent of the total station operations were conducted by F-4's, 29 percent by the A-4's, 35 percent by the AV-8's, 3.5 percent by T-28's and 3.5 percent by transport aircraft. However, only about 14 percent of the F-4 operations (or 4 percent of all operations) were FMLP operations by the F-4 aircraft.

In late 1975, Tracor was employed as a consultant to the firm of Burns and McDonnell under a NAVFAC contract to do another aircraft noise study with respect to the aircraft and related noise then existing and projected in the vicinity of MCAS-Beaufort. The study was completed in 1976. The 1976 study was based, in part, on the data and measurements made for the 1973 study. New CNR contours were prepared for the expected 1976 operations. An additional set of CNR contours was prepared which depicted the effects of various operational changes that had been recommended and accepted for implementation in the AICUZ study prepared by Burns and McDonnell.

The operations data reflected in the Tracor report dated December 13, 1976, (but based on data obtained in late 1975), shows that the A-4 FMLP operations had dropped to zero, but the F-4 FMLP operations had increased to an average of 1,400 per month, all of which occurred during one 7- to 10-day training period each month. This was almost four times the average number of F-4 FMLP operations in 1973, and was almost two times the total average number of monthly combined F-4 and A-4 FMLP operations in 1973. Thus the total noise impact on the area was increased by a combination of the greater number of F-4 operations and the greater noise level created by the F-4 aircraft.

The difference in F-4 FMLP activity between 1973 and 1976 is attributable to the fact that in 1973 there was but one squadron (12 aircraft) of twin-engine F-4's stationed at MCAS-Beaufort, and five squadrons (60 aircraft) of single-engine A-4's, whereas by December 1976, there was an entire Marine Air Group (MAG-31) consisting of five squadrons of F-4's (60 aircraft at full strength) and no A-4 squadrons stationed at MCAS-Beaufort.[FN 8]

[FN 8] The record establishes that much of the time one of the five F-4 squadrons (12 of the 60 planes) was on TDY (temporary duty) at one or another of the other stations in the United States. It also establishes that MAG-31 was not always at full TO (table of organization) strength, either in terms of aircraft or pilots.
There is nothing in the record of this case to explain why 600 feet was the prescribed altitude for the F-4 FMLP pattern at MCAS-Beaufort, whereas an altitude of 450 feet was prescribed at NALF-Orange Grove. The evidence does, however, establish that the F-4 "racetrack" FMLP pattern at MCAS-Beaufort was wider and shorter than that of the F-4's and A-4's for Touch-and-Go landing operations. In either case, the aircraft flew over a part of plaintiff's property, but more F-4's traversed plaintiff's property than A-4's. The prescribed altitude for the FMLP pattern on the downwind leg of the pattern (over plaintiff's property) at one time was 800 feet but later was reduced to 600 feet, thus increasing the noise level on the ground. The reason for or the date of that change, however, is not known, and neither the flight path nor the pattern altitude for FMLP's as of 1973 was mentioned in the 1973 Tracor report. [FN 9]
[FN 9] The only logical assumption which can be made is that there was a desire to lower the altitude of the downwind leg to be only slightly above the level of an aircraft carrier deck above the water level without going below the 500-foot level prescribed by the Federal Aviation Administration as the safe level of flight of all aircraft over private property.


AICUZ Study and Report

The Air Installation Compatible Use Zone (AICUZ) Program has been instituted in an effort to coordinate the requirements of the missions of military air installations, with the development of the surrounding communities. The AICUZ is a concept of identifying compatible and incompatible land use around an air station, the purpose being to guide compatible private development through cooperation with local jurisdictions in order to minimize public exposure to aircraft noise and accident potential, while at the same time maintaining the operational capability of the station.

The AICUZ studies take into account two principal factors. One is the aircraft noise impact on the area; the other is the aircraft accident potential. The areas impacted by aircraft noise are designated as CNR (Composite Noise Rating) Zones, whereas the aircraft accident potential areas are designated as APZ (Accident Potential Zones). The area of the highest aircraft noise impact (115 decibels [FN 10] and above, at ground level) is designated as CNR Zone 3, the area of modest noise impact (100 to 115 decibels) is designated as CNR Zone 2, and the areas of little, if any, noise impact (less than 100 decibels) are designated as CNR Zone 1.

[FN 10] The Composite Noise Rating is measured in PNdB. The CNR is a way to describe quantitatively the acoustic energy of sound as it relates to the subjective feelings of loudness, noisiness or annoyance that would be experienced by an observer.
The APZ's are classified as "Clear Zone," "APZ-I" or "APZ-II," depending on whether the area is most critical (Clear Zone), moderate potential for aircraft accidents (APZ-I) or least critical, but possessing some potential for aircraft accidents (APZ-II).

In the course of preparing the AICUZ study for MCAS-Beaufort, 13 specific possible operational modifications were investigated and analyzed. These 13 possible modifications were in addition to the various noise-related changes that had been made in the past. At least two of these possible changes in the operations at MCAS-Beaufort would have significantly reduced the noise over plaintiff's property. Of the 13 modifications considered, only 6 of them were considered to be of sufficient benefit to be implemented. However, none of the six that were accepted had any significant effect on the noise levels over plaintiff's land. [FN 11]

[FN 11] One of the six operational modifications which was accepted to be implemented with the AICUZ study was not actually carried out because of a perceived conflict with safety criteria.
Among the operational modifications specifically considered and rejected by the Marine Corps was to terminate future FMLP training operations at MCAS- Beaufort and transfer these training exercises to Page Field on Parris Island. This would have eliminated the flights that are the cornerstone of plaintiff's complaints. An analysis of this alternative disclosed that such a transfer would create an equivalent noise problem in the Page Field area and would adversely impact other residential areas.

The Marine Corps similarly rejected a proposal to raise the FMLP training flight pattern altitude from 600 to 1,000 feet. This would have lessened the noise level over plaintiff's property caused by these flights. In adopting the AICUZ study, the Marine Corps concluded that this alternative should be rejected since it would be a nonstandard FMLP flight pattern and contrary to the training procedure and the requirements of the base mission for MCAS-Beaufort. Thus, it was decided that the plaintiff landowner should bear the burden of aircraft noise and low-level flights even though such flights would render the property clearly unacceptable for normal residential use.

The evidence in this case clearly establishes that the CNR Zone 3 and CNR Zone 2 "footprints" include portions of plaintiff's property on Lady's Island. This is not, in and of itself, sufficient to establish a taking of plaintiff's property by the defendant. It does, however, constitute valuable evidence of the impact of defendant's aircraft operations on that part of plaintiff's property over which defendant's A-4 and F-4 jet aircraft were operating when flying the FMLP pattern.

The ultimate facts found in this case are:

1. Defendant's F-4 aircraft made standard operational flights over plaintiff's property in performing FMLP training by the squadrons of a full air group at a level flight altitude of 600 feet (plus or minus 50 to 100 feet) AGL which aircraft created more noise than the previously flown A-4 aircraft and such greater noise was sufficient to constitute an immediate and direct intrusion upon plaintiff's property, which intrusion was so substantial as to detract from and interfere with plaintiff's full enjoyment of the property by limiting plaintiff's exploitation of it as a medium density residential development, its highest and best use.

2. Defendant has not only intruded upon plaintiff's property but has also given public notice of the adverse effect thereof upon plaintiff's property by adopting, publishing, and approving for implementation the AICUZ study of 1976 in which at least part of plaintiff's property has been designated as unsuitable or unacceptable for medium density residential use.

3. All of the foregoing acts of defendant occurred during the time plaintiff was the owner of the property in suit and the present action was brought less than 6 years after plaintiff's claim against defendant first accrued. The value of plaintiff's property right and the exact date of the taking are left for determination in further proceedings under Rule 131(c).

4. There has been no assignment to plaintiff of any claim against defendant, the claim asserted by plaintiff having first accrued to plaintiff after plaintiff acquired the property in issue.


The Case Law

The leading case in the realm of "inverse condemnation" as a consequence of the flight of aircraft over private property ("avigation easements") is United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). The most recent decision of the Court of Claims on this subject, however, is Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614 (1979). In the 33-year interval between Causby and Lacey there have been a goodly number of cases involving differing factual situations and different governmental entities. Also within the last few years numerous articles have been written on the subject of "noise pollution" [FN12] in which noise impact, alone, is considered to be the source of the encroachment on private property, notwithstanding the particular altitude at which the aircraft passes over the property.

[FN 12] See, e. g., "Airport Noise Regulation: Burbank, Aaron and Air Transport" 8 Trans.L.J. 403 (1976) and "Current State of the Law in Aircraft Noise Pollution Control" 43 J. Air L. & Com. 799 (1977).
The Supreme Court long ago put to rest the ancient common law doctrine that ownership of the land extends to the periphery of the universe. In United States v. Causby, supra, the Supreme Court held that "(t)he airspace, apart from the immediate reaches above the land, is part of the public domain." 328 U.S. at 266, 66 S.Ct. at 1068. In Causby, it was not necessary to define "the immediate reaches" to which the limits of a landowner's rights extend above the land, and the Court expressly declined to do so. Id. The Court of Claims, in applying the holding of Causby, likewise has avoided a definition of the "immediate reaches" of private ownership, stating: "(t)he Causby case established the rule that flights by Government-owned aircraft over private land are a 'taking' under the Fifth Amendment of an easement in the overhead airspace if such flights are so low and so frequent as to be a direct and immediate interference with the use and enjoyment of the land." Lacey v. United States, 219 Ct.Cl. at 553, 595 F.2d at 615 (emphasis supplied).

At the time of Causby, Congress had legislated that "(t)he United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States * * *." 49 U.S.C. 176(a) (1940) (current version at 49 U.S.C. 1508(a) (1976)). Congress had also recognized and declared that every citizen of the United States has "a public right of freedom of transit in air commerce through the navigable air space of the United States." 49 U.S.C. 403 (1940) (current version at 49 U.S.C. 1304 (1976)). "Navigable airspace" was then defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority (CAA) * * *." 49 U.S.C. 180 (1940).[FN 13]

[FN 13] The existing statutes and regulations as applied to the facts in Causby v. United States, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), were interpreted to mean that "the navigable airspace" began at 500 feet above Causby's land. (There was no allowance, in that interpretation, for takeoffs or landings.)
The aircraft in Causby passed over the plaintiff's land along a glide path at an altitude of 83 feet, and thus were not within "the navigable airspace" which Congress had declared to be in the public domain. Thus the United States was not immune from suit under the above statutes and the taking of an easement, in the constitutional sense, was found. The Court pointed out that had the CAA (now the FAA) prescribed 83 feet as the minimum safe altitude of flight, the validity of the regulation would then have been called into question. 328 U.S. at 263, 66 S.Ct. at 1066.

Congress' regulatory power over air navigation (or "avigation") and the public right of freedom of travel in the navigable airspace of the United States is analogous to, stems from, and is subject to the same constitutional limitations as Congress' regulatory power over, and the public's right to travel in the "navigable waters" of the United States. It was upon this premise that Congress declared the "navigable airspace" to be a "public highway" in the Air Commerce Act of 1926, ch. 344, 44 Stat. 568 (1926).

In enacting the 1926 Act, Congress intended to apply existing principles of the law of water transportation to air transportation. The House report accompanying the bill stated:

The provisions of the bill are not unique or unprecedented. In practically every case each provision has a precedent in an existing provision of law, and is modeled upon and often paraphrased from it. Usually these existing provisions are those of the marine navigation laws. This is natural for the reason that air space, with its absence of fixed roads and tracks and aircraft with their ease of maneuver, present as to transportation practical and legal problems similar to those presented by transportation by vessels upon the high seas.

The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The public right of flight in the navigable air space owes its source to the same constitutional basis which, under the decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil. (H.R.Rep. No. 572, 69th Cong., 1st Sess. 9-10 (1926); emphasis supplied.)

The Federal Government's plenary power to regulate navigable airspace is unquestionable. However, just as the aquatic navigational servitude does not afford a blanket exemption from the taking clause of the fifth amendment whenever Congress exercises its commerce clause authority to regulate aquatic navigation, Kaiser Aetna v. United States, 444 U.S. 164, 172, 100 S.Ct. 383, 389, 62 L.Ed.2d 332 (1979), the avigational servitude does not preclude application of the taking clause when Congress, in acting to regulate aviation, exceeds its reasonable power to regulate.

Subsequent to the decision in Causby, as part of the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731, Congress redefined "navigable airspace" to mean "airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft." 49 U.S.C. 1301(26) (1976).[FN 14] In Griggs v. Allegheny County, 369 U.S. 84, 82 .Ct. 531, 7 L.Ed.2d 585 (1962), the Supreme Court was faced with a situation where flights along a glide path above the plaintiff's land, while below 500 feet, were nevertheless within the navigable airspace as declared by Congress in the 1958 Act. The Court held that a taking had occurred despite the fact that the landing planes were within the navigable airspace of the United States as defined by Congress and as determined by the applicable regulations. 369 U.S. at 88-89, 82 S.Ct. at 533.

[FN 14] It is of interest to note that subsequently Congress defined "navigable waters" to mean "waters of the United States." 33 U.S.C. 1362(7) (1976).
This court in Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798 (1963), found that owners of property over which planes flew at an elevation of less than 500 feet were entitled to compensation, but they were not entitled to compensation for flights above 500 feet although they may have been "inconvenienced to some extent by these flights." Id. at 300, 311 F.2d at 801. But as the court pointed out:
This is not to say that a case could not arise where the unavoidable damage to a person's property occasioned by travel in the navigable air space would be so severe as to amount to a practical destruction or a substantial impairment of it. When such a case arises we would then have to consider whether the relevant statutes and regulations violated the property owners' constitutional rights * * *. (Id. at 301, 311 F.2d at 801; emphasis supplied.)
This is such a case and the facts warrant such consideration.

The spirit of the Causby rule was evident in the Federal courts even prior to the Supreme Court's decision in Causby. See Cory v. Physical Culture Hotel, Inc., 14 F.Supp. 977, 982 (W.D.N.Y.1936) (Although his rights to the airspace are limited, the owner of the surface may prevent the use of airspace above that actually occupied by him to the extent that its use unreasonably interferes with his complete enjoyment of the surface. "The height at which an airplane operator may pass above the surface without trespassing is a question depending for solution on the facts in the particular case, and this question is unaffected by the regulations promulgated * * * under the Air Commerce Act of 1926 * * *.").

Continued in Part Three