finding the Federal Aviation Act did not preempt a municipality exercising its authority to regulate the creation of new airports because “the designation of plane landing ... is a matter left primarily to local control,” and noting that “[t]he FAA has acknowledged that land use matters within the federal aviation framework are intrinsically local”
How later courts described this case
- finding the Federal Aviation Act did not preempt a municipality exercising its authority to regulate the creation of new airports because “the designation of plane landing ... is a matter left primarily to local control,” and noting that “[t]he FAA has acknowledged that land use matters within the federal aviation framework are intrinsically local”
- according Chevron deference to an FAA interpretation and noting that “[a]s a reviewing court, we must give great deference to the views of a federal agency with No. 04-4089 Cleveland Nat’l Air Show v. FAA, et al. Page 6 regard to the scope of its authority”
- stating in dictum that “[federal] regulations preempt local law in regard to aircraft safety, the navigable airspace, and noise control”
- stating in dicta that "[federal]] regulations preempt local law in regard to aircraft safety, the navigable airspace, and noise control"
Written by the judges who cited it.
The opinion
NATHANIEL R. JONES, Circuit Judge,
concurring.
After numerous attempts at drafting a principled dissent to the majority opinion, I have come to the conclusion that while it is legally unassailable, the case nevertheless has an unsettling aspect. Due to the solid conclusion reached by Judge Contie for the majority, I concur in the judgment on both the preemption and section 1983 claims.
I write separately, however, to express a concern, even as I agree with the judgment. This case, I fear, may reenforce, as an unintended consequence, the moves to neutralize the appropriate exercise of federal power whenever state and local regulations are at play. History should remind us of the reasons why a strong central government has been deemed essential in our system of federalism.
I am simply not convinced that in this case the regulations cited by Gustafson demonstrate Congressional intent to preempt the local power to designate aircraft landing sites. To the contrary, zoning is one of the few spheres of control the Federal Aviation Act (“FAA”) explicitly leaves to local governments. My concern is that some states and localities will use this ruling as a rallying point in their efforts to undermine particular areas of federal control. Far from that, this case must be read narrowly and as acknowledging that Congress excepted only limited areas from federal control when it enacted the FAA. As history has taught us, certain areas of regulation in our country must be left to the control of the national government. The very nature of some subjects implicate federal control. Air traffic must be regulated at the national level. Without uniform equipment specifications, takeoff and landing rules, and safety standards, it would be impossible to operate a national air transportation system.
City of Burbank v. Lockheed Air Terminal provides a teliing example of a locality’s attempt to undermine the reach of the Federal Aviation Act. In Burbank, one locality’s curfew on jet aircraft landings threatened to disrupt flying schedules and jeopardize air safety throughout the entire nation. As the Court noted:
If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded.
Burbank, 411 U.S. at 639, 93 S.Ct. at 1862. I reiterate the Court’s concern with local governments’ ability to interfere with comprehensive federal regulatory programs. The line between permissible local regulation, such as the zoning regulation in this case, and impermissible encroachments on federal power in the name of zoning or other traditional state police power functions, such as *793 protecting citizens health and welfare, is a thin line. Many localities are already eager to test the boundaries, and the courts must be ever mindful of their attempts to do so.
A recent federalism summit held in Cincinnati serves to remind us of those who wish to see power wrenched from the hands of the federal government. At the summit, state legislators, delegates, and observers from thirty-nine states and five nation-wide organizations convened to discuss proposals for “strengthening the states’ hands in dealing with the federal government.” See Dan Balz, Power Is on States’ Agenda; Coalition Seeks to Fight Federal Encroachment on Sovereignty, Wash. Post, Oct. 25, 1995, at A17; Lawrence J. Goodrich, States Seek to Grab Even More Power from Washington, Christian Sci. Monitor, Oct. 25, 1995, at 1. Along with devising strategies to transfer certain areas under federal control to the states, conferees at this recent summit suggested proposals for interjecting state lawmakers into national rulemaking processes. Id. As this movement gains fervor, I grow more concerned that its proponents are overlooking this country’s continued need for a strong national government.
In their charge to shift power from the national government to local governments, so-called states and local rights proponents cannot ignore the advancements in this country that could only have come about through the leadership of our national government. Besides creating an effective and intricate interstate travel system consisting of air, rail, water, and highway travel, our strong national government has shaped this country into a place where all citizens enjoy protections in the areas of voting rights, education, employment discrimination, labor, securities, and environmental protection. A collection of fifty separate governments could never have assured such protections throughout our fifty states.
Although a legal local seaplane landing prohibition may not seem much of a threat to the integrity of our national government, the possibility remains that the next local regulation may not be rooted in an appropriate exercise of local power. I caution that local governments ought to take care in regulating in areas that are subject to broad national control and to consider the advantages of our national government before attempting to undermine its authority.