Petition for Writ of Certiorari — Gustafson v. City of Lake Angelus

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; Supreme Court, U.S.

95205 4 JUN 1 4 1996

No.

UFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

s ——

ROBERT GUSTAFSON,

Petitioner,

CITY OF LAKE ANGELUS; DONALD ALTHOFF, Mayor

of the City of Lake Angelus; MICHAEL STEFANI, Chief

of Lake Angelus Police Force,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

STEVEN M. CHAIT

Counsel of Record

STeveNn M. Cuarr & Associates, P.C.

4309 Westover Court

West Bloomfield, Michigan 48323

(810) 855-8827

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

I].

QUESTIONS PRESEN: =D

WHETHER THE FEDERAL AViATION ACT AND

THE ®EDERAL AVIATION RE(;ULATIONS PRO-

MUI: ATED THEREUNDER PROVIDE A PERVA-

SIVE UNIFORM SYSTEM OF CONTROL OVER

AIRCRAFT OPERATIONS ABOVE OR UPON OPEN

WATER SUCH THAT A CITY ORDINANCE WHICH

PURPORTS TO PROHIBIT AIRCRAFT OPERATIONS

ABOVE OR UPON OPEN WATER IS PREEMPTED

BY FEDERAL LAW?

WHETHER A DISCRIMINATORY CITY ORDI-

NANCE VIOLATES A RIPARIAN PROPERTY

OWNER/AIRMAN’S RIGHTS TO DUE PROCESS

AND EQUAL PROTECTION WHERE THE ORDI-

NANCE IS EXCLUSIONARY, PROHIBITS A REA-

SONABLE USE OF THE WATER, IS ARBITRARY,

CAPRICIOUS AND NOT REASONABLY RELATED

TO A GOVERNMENT INTEREST?

Page

QUESTIONS PRESENTED |. 555. hile i

TABLE OF CONTIGS. 4s ii

TABLE OF AUTHOMNTING 66566565 ee Vv

OPINIONS BRLOW, . 5363. 35ic5 ee 1

JURIST 5 ss vceercpieted eee ee 3

CONSTITUTIONAL PROVISIONS.................. 3

STATEMENT OF THE CASE. oo 3

TABLE OF CONTENTS

The record demonstrates that there was abso-

lutely no objective inquiry undertaken by the

City which would support the conclusion that

the Ordinances were reasonably related to the

achievement of the stated objectives.........

The City ordinances are in fact unrelated to

any actual safety or noise concerns..........

Clear and Obvious Conflict between Local

Ordinance and Federal Law.................

The Federal Aviation Administration has

Expressly Stated that a State may not draft

legislation governing Seaplane operations, and

this fact was completely ignored and contra-

dicted by the Circuit Court below...........

Seaplane operations on Lake Angelus PREEX-

ISTED the local Seaplane Ordinances by many

years, which fact was not addressed by the

Circuit Coutt belt ..ocsssice ei,

ae |

get IO eth. TG aad ag

. mere ne eed <

iii

TABLE OF CONTENTS - Continued

REASONS FOR GRANTING THE WRIT .......-..--

THE FEDERAL AVIATION ACT AND THE FED-

ERAL REGULATIONS PROMULGATED THERE-

UNDER PROVIDE A PERVASIVE UNIFORM

SYSTEM OF CONTROL OVER AIRCRAFT

OPERATIONS ABOVE OR UPON OPEN WATER

SUCH THAT A CITY ORDINANCE WHICH

PURPORTS TO PROHIBIT AIRCRAFT OPERA-

TIONS ABOVE OR UPON OPEN WATER IS

PREEMPTED BY FEDERAL LAW ..........----

A. The Opinion of the United States Court of

Appeals for the Sixth Circuit, included with

this Petition at Appendix 1, is an extremely

Broad and Sweeping 27 page Decision. The

issues presented have broad-reaching effect

and involve much more than the particular

rights of the litigants in this case........-.

B. This Opinion has the effect of stripping the

Federal Aviation Administration (FAA) of its

ability to adequately carry out its Mandate to

Foster and Promote Aviation Safety. This

Court should consider a request that the FAA

provide the Court with its true opinion as to

whether the FAA believes that Federal Pre-

emption applies to Seaplanes .........-----

C. The Opinion of the United States Court of

Appeals for the Sixth Circuit is likely to have

the effect of damaging and even destroying

the Seaplane Industry in the United States

by permitting virtually every municipality

near any body of water to arbitrarily enact

blanket prohibitions against seaplanes based

on emotion or personal prejudice..........

TABLE OF CONTENTS - Continued

Page

D. The Opinion of the United States Court of

Appeals for the Sixth Circuit conflicts with, and

relies on the Dissenting Opinion of this Honor-

able Court in City of Burbank v. Lockheed Air

Terminal, 411 U.S. 624 (1973); to the extent that

the specific question has not been addressed

with respect to Preemption of aircraft opera-

tions on water, the question should be

addressed by the Supreme Court............ 17

E. The Federal Aviation Regulations Do Not Treat

Land And the Surface of Inland Lakes the

Same; This Very Significant and Important Dis-

tinction was Recognized by the District Court,

but ignored by the Circuit Court............ 23

F. The Circuit Court attempts to find FAA Basis

for its ruling by Holding that Every Time a

Seaplane Ever Touches Down on Any Body

of Water, It is “Tantamount to Creating a

New Airport,” Which is clearly Wrong..... 24

Il. A DISCRIMINATORY CITY ORDINANCE VIO-

LATES A RIPARIAN PROPERTY OWNER/AIR-

MAN’S RIGHT TO DUE PROCESS AND EQUAL

PROTECTION WHERE THE ORDINANCE PRO-

HIBITS A REASONABLE USE OF THE WATER,

IS ARBITRARY, CAPRICIOUS AND NOT REA-

SONABLY RELATED TO A GOVERNMENT

DUES Five see Wares ceeaet¥ereTE cian. 25

A. The Concurring Opinion of Judge Jones of

the United States Court of Appeals for the

Sixth Circuit Raises Concerns About the

Effect of This Opinion Which Further Show

that the Issues Here Presented Are Broad

Reaching and Involve Much More Than the

Rights of the Litigants Involved........... 29

CCEATIIIG ss ne vksee cs eee 30

TABLE OF AUTHORITIES

Page

CASES

Americans United for Separation of Church and State

v. School District of the City of Grand Rapids, 835

Fis ee CU ly SD elds cd bout ccd vewks Vackwuas 8

Appeal of Green and White Copter, Inc., 360 A.2d 283

Oe | PPE EEE T Pe ore en 26, 27

Baldwin v. North Shore Estates Ass’n., 384 Mich. 42,

TEE Pe UUs Ue CRPFORS 3 6 ib 6 08s ohab ada Chea hevdw bh 28

Blue Sky Entertainment, Inc. v. Town of Gardiner, 711

F. Sapp. G70 CNTY. TGR). sivivasccscnsidaicvess 18

Chevron U.S.A. v. Natural Resources Defense Council, _

fon., 467 US... Gar, Bee Gree a vice re ssh 14

City of Burbank v. Lockheed Air Terminal, 411 U.S.

Ge (EGF Od 5 ontsa kitcar iy Bae Se Sy me oe

City of Cleveland, Ohio v. City of Brook Park, Ohio,

893 F. Supp. 742 (N.D. Ohio 1995)............. 12, 13

Collins v. Gerhardt, 237 Mich. 38 (1926)........... 16, 29

Command Helicopters, Inc. v. City of Chicago, 691 F.

Supp. 1148 (N.D. Tl. 1988)........-scccccercncvess 18

Country Aviation, Inc. v. Tinicum Township, 1992

WL. 396762 (B.D. Ponts. 1992) 0. ccsccccvvnscs disuse 13

English v. Augusta Township, 204 Mich. App. 33,

514 N.W.2d 172 (1994) (Docket No. 141480,

decided. Mardis 7, SORG) soos ca.ctianrestsioaedies 25, 26

Faux-Burhans v. County Commissioners of Frederick

County, 674 F. Supp. 1172 (D. Md. 1987), aff'd,

859 F.2d 149 (4th Cir. 1988), cert. denied, 488 U.S.

GES GUID) iv cacacvcocscvavetvccevessveussedpenes 10

France Stone Co. v. Township of Monroe, 802 F. Supp.

90 (E.D. Mich. 1990)........ccccscccvcvvcvcccceses 26

TABLE OF AUTHORITIES - Continued

Page

Georgia Power Co. v. Baker, 830 F.2d 163 (11th Cir.

SIUF) s o's's vicikid Low deve dies ees bind puna: 26, 27

Gustafson v. City of Lake Angelus, 856 F. Supp. 320

(SPROP <s pracecccseeeny aust CaeeeveELEEt I. 17

Haskell v. Washington Township, 864 F.2d 1266 (6th

Ce. 20ND) 6 ibn Mie ee 29

Kropf v. City of Sterling Heights, 391 Mich. 139, 215

NWO BFF CIIOGD, cur vis eel ere 26

Ottawa Farms v. Polkton Township, 131 Mich. App.

222, 345 N.W.2d 672 CRPONUE vik oc4cu s bod Cees uetkc 26

Price v. Charter Township of Fenton, 1995 WI 738386

(E.D.Mich. Nov. 30, Re steahets aee'e cane vrs eae Cae 10, 20

Roman Catholic Archbishop v. Orchard Lake, 333

Mich. 369, 53 N.W.2d 308 i PRR Rea Paes 26

San Diego Unified Port Authority v. Gianturco, 651

F.2d 1306 (9th Cir. SNe +s cides Se: 18, 21

Skydiving Center of Greater Washington, D.C. v. St.

Mary's County Airport Comm'n, 823 F. Supp. 1273

(O. MG. T0GS) canes ssuneneincciecis Moe 18

United States v. County of Westchester, 571 F. Supp.

1H GONG TOS siicccc niece oe 28

STATUTES AND Court RULES

U.S. Const., art. Wie OU Be as crndinkss pit coke 3

14 C.ER. Parts 23, 25, & 61: @ Gis es 20

a6 CER. § PE US. os. ge ee 8, 21

a6 CBR. © OUI i555 19, 23

a6 CBR. Poet S578 asbestos ee ee 21, 24, 25

SE USC. § 2005... vo. oeccucicseee 2

eeiistinieiianiat edema teen Ltr, eT

vii

TABLE OF AUTHORITIES - Continued

Page

Pv gte Sal £ er er eerrriTr rere ere Tee, 4

GD UBL. B 1FGD 6 OB. oa icine vevnecvccidveveves 12

pil toy S| Rep rerr rr rir errr errr eri rere 18

Inland Lakes and Streams Act, Mich. Comp. Laws

AM. F FOL FOL OF Wie osc vcecsunrceecsteveceseves 28

Mich. Comp. Laws Ann. § 281.1114............050:: 28

y RE EB OE IN wR LSM we Oy

PETITION FOR WRIT OF CERTIORARI

Petitioner, Robert Gustafson, respectfully prays that a

Writ of Certiorari issue to review the opinion of the

United States Court of Appeals for the Sixth Circuit

entered on February 27, 1996, and the subsequent denial

of the Motion for Reconsideration and Suggestion for

Rehearing En Banc on April 3, 1996.

OPINIONS BELOW

The United States District Court for the Eastern Dis-

trict of Michigan, Judge Paul V. Gadola, found in a strong,

well written and researched opinion, that the Federal

Aviation Act and the regulations promulgated thereunder

demonstrate Congressional intent to preempt local regu-

lations governing flight operations, and relied upon this

Honorable Court’s opinion in City of Burbank v. Lockheed

Air Terminal, Inc., 411 U.S. 624 (1973), along with an entire

progeny of subsequent caselaw following Burbank.

The District court granted riparian Property owner

and Seaplane Pilot Robert Gustafson’s Motion for Sum-

mary Judgment and Plaintiff’s Motion for Declaratory

Judgment and a Permanent Injunction, preventing the

defendant City and its Officers from enforcing the City’s

local ordinances which totally prohibited the operation

of any type of aircraft within 500 feet of the surface of the

lake!, or the operation of seaplanes upon the surface of Lake

Angelus.

The District Court also granted the defendant City’s

Cross Motion for Summary Judgment as to the Plaintiff's

claim under 42 USC 1983 for violation of his constitutional

rights. The opinion of the District Court was issued on

October 22, 1993. (See App. 2)

On February 27, 1996, the United States Court of

Appeals for the Sixth Circuit reversed in part the holding of

the District Court, and ruled that the City of Lake Angelus

Ordinances prohibiting the operation of Seaplanes was not

Federally Preempted; the Circuit Court also Affirmed in part

the decision of the District Court holding that Plaintiff

Robert Gustafson had not been deprived of his right to due

process and Equal Protection. (App. 1)

On April 3, 1996, the United States Court of Appeals for

the Sixth Circuit denied Plaintiff Robert Gustafson’s Motion

for Reconsideration and Suggestion for En Banc Review.

(App. 3)

However, on April 15, 1996, the Circuit Court

Granted Plaintiff Robert Gustafson’s Motion for Stay of

the Mandate for 60 days, to enable Robert Gustafson to

perfect this timely Petition for Writ of Certiorari to this

Honorable Court. (App. 4)

. Notwithstanding the fact that Lake Angelus lies only 4.5

miles from Oakland-Pontiac Airport, the second busiest airport

in the State of Michigan.

~ + alee ine

JURISDICTION

The opinion of the United States Court of Appeals for

the Sixth Circuit was Filed on February 27, 1996, and

Reconsideration was denied on April 3, 1996. This Honor-

able Court's jurisdiction to cunsider this petition from the

final order of the United States Court of Appeals is

invoked pursuant to 28 USC 2101 et seq.

CONSTITUTIONAL PROVISIONS

(a) Article VI of the United States Constitution

declares that Federal Law:

.. . [Shall be the Supreme Law of the land; and

the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any

State to the contrary notwithstanding.

U.S. Const., art. VI, cl. 2.

STATEMENT OF THE CASE

Plaintiff Robert Gustafson, a licensed seaplane pilot,

and owner of riparian property on Lake Angelus, filed

this action against defendants City of Lake Angelus, its

Mayor, Donald Althoff, and Chief of Police, Michael Stef-

ani, alleging violations of Federal statutory and constitu-

tional rights. Plaintiff sought from the District Court

below and was granted declaratory and injunctive relief

against the enforcement of City ordinances which pro-

hibit, not merely attempt to regulate, the operation of

any type of aircraft at or below 500 feet and/or upon the

surface of Lake Angelus. (App. 2) Jurisdiction in the

District Court was based upon the Federal Question of

Preemption of Local ordinances by the Federal Aviation

Regulations and Federal Statutes.

The relevant yortions of the local municipal ordi-

nances complained of are set forth in the Opinion of the

Circuit Court at pages 3 and 4 (App. 1) and in the opinion

of the District Court. (App. 2)

Additionally, Robert Gustafsor sought an award of

attorney fees pursuant to 42 USC 1988 for the violation of

his constitutional rights to due process and equal protec-

tion caused by the enforcement of the ordinances. The

District Court denied an award of attorney fees.

Petitioner Robert Gustafson adopts the statement of

facts contained within the Opinion of the United States

Court of Appeals, which appropriately summarizes the

parties and procedural history of the case. (App. 1)

In addition, the following record factual evidence

pertaining to the challenged City Ordinances was pre-

sented to the courts below.

A. The record demonstrates that there was abso-

lutely no objective inquiry undertaken by the

City which would support the conclusion that

the Ordinances were reasonably related to the

achievement of the stated objectives.

For example, Mayor Donald Althoff testified that he

was not aware of any consultants or experts on behalf of

the City who had expressed any opinions regarding the

safety of operating seaplanes at Lake Angelus, and he did

sa aaltepet f

oie gt SOROS

Ce ele ee eee Or See ee ee

Fe te Mah Ag Dek

not have any direct knowledge as to whether any consul-

tants or experts had ever been retained or had expressed

any opinions with regard to the noise levels of seaplane

operations. The Mayor had no knowledge as to whether

the City had ever studied the Safety History of seaplanes

operating around boats. (App. 5 at 68-69)

Police Chief Michael Stefani also testified at deposi-

tion that he was similarly not aware of any investigation

or study with regard to the safety record of seaplanes on

inland lakes, nor any studies comparing the safety record

of seaplane operations with that of boats on the lake.

(App. 5 at 68)

Though the ordinances were ostensibly enacted to

promote the health, welfare and safety of the citizens,

Police Chief Stefani knows of no such criteria by which

anyone had determined that a seaplane is more or less

safe than the power boats that are currently permitted on

Lake Angelus. While Chief Stefani opines that “it’s just

common sense,” he knows of no data to support the

proposition that there are any safety related reasons for

the 500 foot altitude or surface prohibitions of seaplanes

at Lake Angelus. (App. 5 at 68)

B. The City ordinances are in fact unrelated to any

actual safety or noise concerns.

In fact, the only objective analysis undertaken by the

City’s request was a review of the lake by James Greshel,

Administrator, Safety and Services Division of the Michi-

gan Bureau of Aeronautics. (App. 9) Mr. Greshel saw no

factor which would prevent aircraft from safely taking

off or landing on Lake Angelus.

Mr. Greshel stated: “There is no significant aviation

safety or airspace basis to exclude seaplanes from (the

lake)... ”. (App. 9)

Mr. Greshel also reported that Federal Aviation

Administration (FAA) personnel at the nearby Oakland-

Pontiac Airport Air Traffic Control Tower have no prob-

lem coordinating seaplanes using the lakes with air traffic

using the Oakland-Pontiac Airport. Lake Angelus under-

lies the Airport Traffic Area and the Control Zone estab-

lished for the Oakland-Pontiac Air Traffic Control Tower.

Oakland-Pontiac Airport is the second busiest airport

within the State of Michigan, and aircraft both departing

and arriving at Oakland-Pontiac and nearby lakes have

operated for years in and around the airspace of the City.

See Affidavit of Federal Aviation Administration Tower

Manager Kyle Kiefling (App. 8) Mr. Kiefling’s Affidavit

also sets forth the need for the use of the surface of Lake

Angelus, along with the fact that seaplanes have in the

past and will continue to use the surface of the water.

In addition to the frequent General Aviation air traf-

fic which regularly operates at relatively low altitude

over the City of Lake Angelus, including many jet aircraft

such as DC-9 and Boeing 727 aircraft, the City of Lake

Angelus ordinances permit many uses within the City

and on the Lake which emit much higher volumes of

noise than does the 85 horsepower Piper J-3 Cub which

Petitioner Robert Gustafson landed upon Lake Angelus in

August, 1991.

C. Clear and Obvious Conflict Between Local

Ordinance and Federal Law.

Prior to the entry of the District Court’s Permanent

Injunction below, a serious conflict between the Federal

Aviation Regulations and the local ordinances was in

existence, in which even landplane pilots would have to

decide whether to follow the instructions of the FAA Air

Traffic Controller and violate the local criminal ordinance

prohibiting flight within 500 feet of Lake Angelus, or to

obey the local Prohibition and be subject to a violation

action for disregarding the directives of the FAA Control-

lers, possibly at the risk of safety. Subsequent to the

Ruling of the District Court, the City admitted that the

airspace portion of their ordinance was clearly Federally

Preempted, and revised their ordinance accordingly.

Unfortunately, the Circuit Court below appears to have

not realized that the city vehemently denied that even the

airspace portion of its local ordinance was preempted,

until the District Court ruled that the 500 foot prohibition

is Federally Preempted. (Compare App. 1, Footnote 2 and

App. 2 at 46). Had Robert Gustafson not brought this

action at all, this clear and potentially dangerous conflict

between Local and Federal Law would still exist today,

making pilots of each land based aircraft travelling to or

from Oakland-Pontiac Airport through this airspace lia-

ble to serve time in Lake Angelus’ jail, even though they

were fully complying with the Air Traffic Controller’s

instructions, and even if they had never heard of the City

of Lake Angelus or its ordinances. In the Court below,

Petitioner Robert Gustafson requested Attorney Fees and

Costs, since his Action has been the “catalyst” which

caused the defendant City to make significant changes in

its past practices, even though no direct relief is obtained.

Americans United for Separation of Church and State v. School

District of the City of Grand Rapids, 835 F.2d 627 (6th Cir.

1983). The Opinion of the Circuit Court below concluded

that there were no violations of due process or equal

protection, apparently misunderstanding that the defen-

dant City did not voluntarily give up the offending ordi-

nance until they had lost in the District Court below on

that issue. (App. 1, footnote 2)

D. The Federal Aviation Administration has

Expressly Stated that a State may not draft leg-

islation governing Seaplane operations, and

this fact was completely ignored and contra-

dicted by the Circuit Court below.

The Federal Aviation Administration (FAA) in a letter

dated November 17, 1994, to the Oregon Office of Legisla-

tive Counsel, has expressly stated the Agency’s position

that a state may not draft legislation governing seaplane

operations since uniform regulations governing seaplane

operations throughout the United States are codified at 14

C.F.R. Part 91, section 91.115 of which specifically applies

to seaplanes. (App. 6) In addition, the City of Lake

Angelus argued in their brief to the Circuit Court below

that the FAA had impliedly agreed that the City ordi-

nance was valid because the FAA had published an

announcement about the ordinance in the agency’s Air-

ports and Facilities Directory. In direct rebuttal to the

allegations by the City in this case, the FAA submitted an

affidavit which was attached as an exhibit to the Amicus

Brief of the Seaplane Pilots Association in support of the

Ruling of the District Court below, specifically stating

that their inclusion of the ordinance is not intended as a

statement that the ordinance is valid or enforceable.

(App. 6 at 80, 81) The sole reason that the FAA identifies

the ordinance to the pilot community is to attempt to

prevent them from being blindsided with arrest and pros-

ecution from a surprise, unknown ordinance. Unfor-

tunately, the FAA Airport and Facilities Directory is nota

required document for pilots, and is unlikely to be uti-

lized by seaplane pilots, as discussed by the Amicus Brief

of the Seaplane Pilots Association. (App. 5 at 71 and 72)

Unfortunately, the Circuit Court below made abso-

lutely no mention of either of these Statements of the

FAA which were part of the Record below, and instead

the court on its own found dicta in some cases which

DID NOT involve seaplanes or water use, and by anal-

ogy unilaterally determined that the position of the FAA

is 180 degrees opposite to the Statements of the FAA on

the Record. (Compare App. 1 at pages 16 through 18 with

App. 6)

E. Seaplane operations on Lake Angelus PRE-

EXISTED the local Seaplane Ordinances by

many years, which fact was not addressed by

the Circuit Court below.

It is the position of Petitioner that the Statutes and

Federal Aviation Regulations do not equate water sur-

faces with land surfaces. (App. 11, minimum altitudes

over water versus land.) Indeed, the District Court below

clearly recognized this distinction, stating that this is not

a case which involves issues of Land Use Regulation, but

rather directly attempts to regulate aircraft flight opera-

tions. (App. 2, footnote 3 distinguishing Faux-Burhans v.

County Commissioners of Frederick County, 674 F. Supp.

1172 (D. Md. 1987), aff'd, 859 F.2d 149 (4th Cir. 1988), cert.

denied, 488 U.S. 1042 (1989))

However, the Circuit Court below found that even in

the area of Land Use Regulation, a local zoning ordinance

is Federally Preempted if the Aviation use of the landing

site preexisted the ordinance attempting to regulate the

Aviation use. (App. 1, footnote 7, referencing Price v.

Charter Township of Fenton, 1995 WL 738386 (E.D. Mich.

Nov. 30, 1995))

Pursuant to correspondence which was made part of

the record below, seaplanes have been operating at Lake

Angelus since prior to 1946. (App. 7) The Lake Angelus

ordinances prohibiting seaplanes were not enacted until

the 1970s. Nevertheless, the Circuit Court below makes

absolutely no mention of the preexisting aviation use of

the Lake Angelus landing area.

REASONS FOR GRANTING THE WRIT

I. THE FEDERAL AVIATION ACT AND THE FED-

ERAL AVIATION REGULATIONS PROMULGATED

THEREUNDER PROVIDE A PERVASIVE UNI-

FORM SYSTEM OF CONTROL OVER AIRCRAFT

OPERATIONS ABOVE OR UPON OPEN WATER

SUCH THAT A CITY ORDINANCE WHICH PUR-

PORTS TO PROHIBIT AIRCRAFT OPERATIONS

ABOVE OR UPON OPEN WATER IS PREEMPTED

BY FEDERAL LAW

A. The Opinion of the United States Court of

Appeals for the Sixth Circuit, included with

this Petition at Appendix 1, is an extremely

Broad and Sweeping 27 page Decision. The

issues presented have broad-reaching effect

and involve much more than the particular

rights of the litigants in this case.

The majority in the Circuit Court below attempts to

create a major treatise on the law of Federal Preemption

in Aviation, and goes far beyond concerns regarding sea-

planes. At stake is the integrity of a comprehensive sys-

tem of federal controls which govern seaplane flight

operations and landing areas. The effect of this Opinion

will be to fracture the integrity of this system, and to

render seaplane travel in this country a flight through a

minefield of local regulations. This is a sweeping Opin-

ion which creates obstacles in the field of Aviation law,

which will diminish or extinguish the ability of the

National Air System to function. The ruling of the Circuit

Court below has now strayed far from this Honorable

Court’s ruling in Burbank, and relies instead on the ration-

ale of the Burbank dissent. As stated by the FAA, if every

local community can enact its own set of aviation rules

and standards, “pilots would find it difficult to utilize the

advantage of their aircraft in air commerce due to the bewilder-

ing number of laws they would be required to know.” (App. 6)

B. This Opinion has the effect of stripping the

Federal Aviation Administration (FAA) of its

ability to adequately carry out its Mandate to

Foster and Promote Aviation Safety. This Court

should consider a request that the FAA provide

the Court with its true opinion as to whether

the FAA believes that Federal Preemption

applies to seaplanes.

The Administrator of the FAA has the responsibility,

mandated by Congress, to regulate, supervise and ensure

the fostering and growth of aviation, as well as Aviation

Safety. Federal Aviation Act of 1958, 49 USC 1300 et seq. As

discussed in the Statement of Facts, supra, the FAA has

expressly stated its Opinion that the regulation of sea-

planes is an area which is and must be Federally Pre-

empted. (App. 6)

In addition, the Circuit Court below relies in part on

the District Court case of City of Cleveland, Ohio v. City of

Brook Park, Ohio, 893 F. Supp. 742 (N.D. Ohio 1995). See

(App. 1 at 25)

The Circuit Court below adopts the reasoning of the

District Court in the Cleveland case for the proposition

that:

“The Aviation Act grants to the FAA authority

to regulate the use of the airspace, but this does

not of necessity lead to the conclusion that

localities are no longer free to regulate the use of

land within their borders, even where land use

regulations may have some tangential impact on

the use of airspace.” (App. 1)

It is notable that the United States Court of Appeals

for the Sixth Circuit is relying on a District Court case,

which upon information and belief is currently pending

before the Sixth Circuit, and whose validity is in doubt.

In that appellate action, the FAA and/or the United

States Department of Justice has apparently submitted

briefs arguing that the District Court in the Cleveland case

was incorrect and that Federal Preemption should be

found. In Cleveland, the FAA and the City of Cleveland

are running into local ordinances which are obstacles to

the needed updating of the major Hopkins International

Airport for safety and the more efficient use of the

National Air System. Clearly, the ability of the FAA to

ensure a strong Aviation system has run into a serious

obstacle, and the Circuit Court’s approval of that case

makes clear that this decision goes well beyond the issues

involved in a local dispute regarding activities solely on

one Lake, and has expanded into the area of negatively

affecting the needed improvements to the nation’s Major

airline terminal airports. It was the position of the Dis-

trict Court below that when dealing with water landing

sites, local land use ordinances do not apply, due to the

different treatment of inland waters by the Federal Avia-

tion Regulations. (App. 11 at 46, 47)

In Country Aviation, Inc. v. Tinicum Township, 1992 WL

396782 (E.D. Penn.), the FAA was ordered by the court to

provide an Opinion through an Amicus Brief, and the

FAA provided its opinion that Federal Preemption did

apply. As stated Supra, the Record below contains the

FAA’s own statement that seaplane issues are Federally

Preempted. (App. 6) However, the Circuit Court ignored

these Statements and found dicta contained in some cases

which did not involve seaplane or water issues, and ruled

that the FAA believes there is no Federal Preemption in

this seaplane case. The Circuit Court then cited this Hon-

orable Court in Chevron U.S.A. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 844 (1984):

As a reviewing Court, we must give great

deference to the views of a federal agency with

regard to the scope of its authority.

Petitioner Robert Gustafson would therefore invite

this Honorable Court to request that the FAA submit an

Amicus Brief to the Court stating its true position regard-

ing the issues in this case.

C. The Opinion of the United States Court of

Appeals for the Sixth Circuit is likely to have

the effect of damaging and even destroying the

Seaplane Industry in the United States by per-

mitting virtually every municipality near any

body of water to arbitrarily enact blanket pro-

hibitions against seaplanes based on emotion

or personal prejudice.

Water based aviation is an area of the Aviation indus-

try which has unique need for the protections of the Federal

Aviation Regulations on a national scale. As can be readily

observed through the facts in this case, the City of Lake

Angelus, for reasons which are more addressed toward

antagonism to seaplanes than special local conditions

unique to this Lake, has undertaken to completely pro-

hibit any activity which the Federal Government has

allowed, subject to Federal regulation, pursuant to the

Federal objective of encouraging aviation activity and

establishing national standards for an inherently nation-

wide activity.

Because the Circuit Court below has permitted the

local municipality to totally prohibit the operation of

seaplanes for reasons which are not related to any ratio-

nal concerns, and not related to any special local geo-

graphical concerns, (such as insufficient landing area,

etc.), the court below has sanctioned not regulation, but

prohibition. Moreover, the after-the-fact formulation by

the city of “reasons” for the ordinance appears pre-tex-

tual in light of the record below. Even accepting these

concerns at face value — noise, diminishment of property

values, and the like - the same concerns can and

undoubtedly will be articulated for any other lake. The

point is this — if one lake can prohibit seaplanes for these

reasons, then all lakes can prohibit seaplanes for the same

reasons, and the ultimate effect would be that local gov-

ernments, acting collectively, could effectively bar the use

of seaplanes on all lakes. Since seaplanes, by definition,

land only on water, the net effect would be to allow local

government to abolish an entire industry, and an activity

which the Federal government, through the FAA, for

legitimate federal reasons, has explicitly authorized and

encouraged.

The seaplane industry also needs the protection of

the FAA for a reason unique to water based aircraft.

Pursuant to the rule of local Land Use zoning regulation,

if a local government is able to prevent the use of a given

piece of land to accommodate aviation use, arguably

there would be other pieces of land where an airport or

landing field may alternately be placed. However, inland

lakes are naturally formed, and are very finite in number.

If a local government is permitted to arbitrarily close

down a lake to reasonable seaplane operations, there may

very well not be any alternative locations available, and

the seaplane industry, and its thousands of jobs, is at real

risk of extinction.

The waters in the State of Michigan so far as the

water is capable of being owned, belongs to the state,

which holds it for the common benefit of all the people.

Collins v. Gerhardt, 237 Mich. 38 (1926). Therefore, the City

of Lake Angelus, even under state law, is not the owner

of the surface of the water, the fish in the lake, or the

right to the enjoyment thereof. The Michigan Bureau of

Aeronautics, a division of the State government, found no

valid reason for a prohibition of seaplanes on Lake

Angelus. (App. 9)

In that light, the conflict between the local approach

and the FAA Federal approach is striking: the Federal

approach is to treat seaplanes as an activity to be encour-

aged, while the city treats the same activity as a “public

nuisance,” with no value under any circumstance. The

local and Federal Governments have taken diametrically

opposed positions regarding the activity itself. As indi-

cated in the courts below, seaplane operations perform a

vital and necessary role in commerce in a number of parts

of the United States, such as Alaska and Louisiana.

Further, seaplanes are mobile in nature. They have

the capacity to and in practice do, travel between states.

For reasons not unlike those which require federal regula-

tion of aviation generally, the activity itself is one which

requires federal uniformity rather than a patchwork of

local laws. The concern of the seaplane industry over the

= ee eee ee ee ee

Phe ies PO CA de OODO RANI i

issues at stake in this case, and their significance to the

pilots and operators of seaplanes, is highlighted in the

Amicus Brief of the national Seaplane Pilots Association

for the Circuit Court below. (App. 5)

D. The Opinion of the United States Court of

Appeals for the Sixth Circuit conflicts with,

and relies on the Dissenting Opinion of this

Honorable Court in City of Burbank v. Lockheed

Air Terminal, 411 U.S. 624 (1973); to the extent

that the specific question has not been

addressed with respect to Preemption of air-

craft operations on water, the question should

be addressed by the Supreme Court.

The District Court below found, in a strong, well

written and researched opinion, that the Federal Aviation

Act and the regulations promulgated thereunder demon-

strate Congressional intent to preempt local regulations

governing flight operations. Gustafson v. City of Lake

Angelus, 856 F. Supp. 320 (1993) (App. 2) Specifically,

since the FAA provides safety regulations for take-offs,

landings, and operations on water, as well as allowable

altitudes, the two sections of the City Ordinances impos-

ing altitude restrictions and prohibiting operation upon the

surface of the water are preempted by federal law and

regulation. Id.

On appeal, the Circuit Court finds neither a perva-

sive scheme of federal regulation upon which to predicate

preemption, nor an actual conflict between the chal-

lenged city ordinances and Federal Aviation Regulations.

[hereinafter “FARs”]. Petitioner Robert Gustafson con-

tends that this conclusion misapprehends both applicable

Ee nee ne a ee ea

law and fact, and has far departed from the reasoning of

this Honorable Court in Burbank.

As an initial matter, the Circuit Court faults the Dis-

trict Court opinion of Judge Gadola for reading City of

Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973) too

broadly. The Circuit Court purports to distinguish City of

Burbank by weight of regulation and number of agencies

involved when noise is at issue, rather than by the broad

scope of authority granted to the FAA. (App. 1 at 10) The

Circuit Court concludes that there is no need of unifor-

mity of seaplane regulation. (App. 1 at 22, 23)

Robert Gustafson submits that the essential lesson of

City of Burbank is the broad authority of the FAA, and the

necessity for a uniform and exclusive system of federal regu-

lation if the congressional objectives underlying the Fed-

eral Aviation Act are to be fulfilled. City of Burbank, supra

at 638-39, Skydiving Center of Greater Washington, D.C. v.

St. Mary’s County Airport Comm'n, 823 F. Supp. 1273, 1282

n. 6 (D. Md. 1993), Blue Sky Entertainment, Inc. v. Town of

Gardiner, 711 F. Supp. 678, 691 (N.D.N.Y. 1989), Command

Helicopters, Inc. v. City of Chicago, 691 F. Supp. 1148 (N.D.

Ill. 1988). The FAA is not required to exercise its full

power in order to occupy the field. San Diego Unified Port

Authority v. Gianturco, 651 F.2d 1306 (9th Cir. 1981).

As stated in City of Burbank:

The Federal Aviation Act requires a delicate bal-

ance between safety and efficiency, 49 U.S.C.

§ 1348(a), and the protection of persons on the

ground. 49 U.S.C. § 1348(a). . . . The interdepen-

dence of these factors requires a uniform and

exclusive system of federal regulation if the

ON OD TE Te OS Pg ETc Uy | aa th) bP R

congressional objectives underlying the Fed-

eral Aviation Act are to be fulfilled.

City of Burbank, supra at 638-39.

Similarly, as Judge Jones observes “the very nature of

some subjects implicate federal control. Without uniform

equipment, rules and safety standards it would be impos-

sible to operate a National Air Transportation system.”

(App. 1 at 32)

The importance of a uniform system as applied to

seaplanes and their pilots was illustrated by several

submissions which the Opinion does not address. First,

the Brief of Amicus Curiae Seaplane Pilots Association

affirmatively states that without a uniform set of regu-

lations operators of seaplanes would find it virtually

impossible to operate without the threat of arbitrary,

surprise local arrest and criminal prosecution. (App. 5 at

66) Nor does the opinion reference the statement of

position submitted to the Oregon Office of Legislative

Counsel by the Federal Aviation Administration, speci-

fically with respect to the operation of seaplanes in

Oregon state waterways. (Attachment to Supplemental

Correspondence Dated, March 7, 1995) (App. 6) (“The

very mobile nature of aviation makes it vitally impor-

tant that all laws governing aviation be uniform

throughout the United States.”).

The Circuit Court does not find pervasiveness dem-

onstrated by FARs governing minimum altitude over water,

nor the right of way rules for operation of seaplanes upon the

surface of water. See, 14 C.F.R. 91.119 (copy attached at

App. 11) Rather, the Circuit Court looks to FARs govern-

ing the establishment of a civil airport in compliance with

a municipality’s “land use plan.” (App. 1 at 19, footnote

8). The opinion improperly equates water with earth, and

relies upon cases involving whether airports may be

established on land, contrary to the land use plan of the

local municipality. (App. 1 at 22). This distinction was

recognized by Judge Gadola in the District Court. (App.

2, footnote 3 at 47)

Ultimately, the conclusion is by analogy, that if local

government may use its traditional police power to pre-

vent establishment of new airports and control ground

space, it may also control the surface of water. (App. 1 at

25, 26). On this basis, the opinion also distinguishes Price

v. Charter Township of Fenton, 1995 WL 738386 (E.D. Mich.

Nov. 30, 1995), as involving a preexisting airport.

In the instant case, use of the lake by seaplanes

preexisted the enactment of the ordinances at issue. Fur-

ther, Mr. Gustafson submits that “pervasiveness” of regu-

lation of seaplane operations must also be viewed with

reference to FAA type certification of aircraft and the

rating and licensing system of pilots and mechanics. (See,

App. 5 at 65, 66) (Citing, 14 C.FR. Parts 23, 25, 43, 61 &

67). These regulations are apparently not accorded any

weight in the pervasiveness analysis, though all govern

seaplane aircraft and pilots.

In any event the analogy to land use cases is flawed

since a fair reading of the FARs do not equate water

with earth. (See e.g., App. 11, minimum altitudes over

land versus water). Indeed, notwithstanding FAA opin-

ion as to its place in the determination of where to

build and develop airports on land as an owner/opera-

tor, it seems the FAA is also of the opinion that a state

may not draft legislation governing seaplane operations

since uniform regulations governing seaplane opera-

tions throughout the United States are codified at 14

C.F.R. Part 91, section 91.115 of which specifically

applies to seaplanes. (Compare, App. 1 at 17 with App.

6).

Further assuming that the preexistence of a landing

area is necessary to find local controls preempted, the

opinion does not address the preexisting use of Lake

Angelus by seaplanes reflected in the record. See, Joint

Appendix, Vol. I, p. 60 (copy attached hereto at App. 7).

When the preexisting use of the lake by seaplanes is

considered within the analytical framework of the opin-

ion, then an ordinance predicated in part upon noise reduction

must fail. City of Burbank, supra, San Diego Unified Port

Authority v. Gianturco, 651 F.2d 1306 (9th Cir. 1981) (reject-

ing the claim that a non-proprietor municipality is free to

fill in any void left in the scheme of federal control of

aviation noise).

The Circuit Court is simply wrong in concluding that

the landing of a seaplane on a lake, not officially desig-

nated as a landing area, is “tantamount to” the creation of

an airport. The conclusion is not supported by the FARs,

which also distinguish “landing areas” from “airports,”

and may not be deemed contemplated by 14 C.FR. Part

157.1 which exempts from Part 157 the very type of “landing

area” created by a seaplane’s presence. (Compare, App. 1 at

19, n. 8 with App. 10). The practical result is a conflict

between a local ordinance and the FARs which overlap at the

moment the seaplane touches the water.

Lake Angelus is a natural lake already being used

for recreational purposes including power boating and

waterskiing. Seaplanes have in the past and likely will

continue to land and take-off from Lake Angelus in the

course of intra and interstate travel. A finding of Fed-

eral preemption of City ordinances which purport to

prohibit aircraft operations over and upon this open

water will not affect any as yet unidentified master plan

for the development of the area.

Finding these types of municipal ordinances valid,

however, threatens air commerce by allowing a patchwork of

local regulations to exist, causing chaos in a unified system of

air transportation which expressly applies to seaplanes,

while imposing sanctions upon unsuspecting aviators. This

uniform system is not, as The Circuit Court suggests,

impracticable, rendering every lake in the United States a

potential airport. Rather, as Judge Gadola recognized,

there are controls. The FAA may and does restrict or prohibit

access to water on a fair and impartial basis with reference to

the need of the airway system as a whole, and with a unique

expertise not possessed by each local municipality. As

stated in the amicus brief of the Seaplane Pilots Associa-

tion, under the ruling of the District Court which upheld

Federal Preemption, both seaplane operators and local

municipalities are protected, since all seaplane operations

must be conducted pursuant to Federal Aviation Regulations,

and in the event that a local municipality believes that a

health, safety or welfare concern, the FAA will restrict or

prohibit access to the water. Pursuant to the Circuit

Court’s ruling, if each of the tens of thousands of local

communities can determine their own safety standards,

there will be tens of thousands of different safety standards

applying to an individual seaplane operator. As stated by the

FAA, “pilots would find it difficult to utilize the advan-

tage of their aircraft in air commerce due to the bewilder-

ing number of laws they would be required to know.”

(App. 6)

E. The Federal Aviation Regulations Do Not Treat

Land And The Surface Of Inland Lakes The

Same; This Very Significant And Important

Distinction Was Recognized By The District

Court, But Ignored By The Circuit Court.

As demonstrated supra, the Federal Aviation Regula-

tions pertaining to minimum altitudes over land and over

inland waters are controlled by two separate subparts of

14 CFR 91.119 (App. 11). Part 91.119(c) Requires a mini-

mum altitude of 500 feet over land, but the regulation

Expressly states that over open water, there is no mini-

mum altitude. The regulation also states that that air-

space necessary for Take off and Landing is also available

to the pilot. Obviously, the Airspace down to and includ-

ing the surface of the inland water is included in the

Airspace permitted over the inland water, as it is clearly

necessary for Take offs and Landings.

Ironically, the City now concedes that it cannot regu-

late the over water use of seaplanes but can prevent them

from actually landing. It seems bizarre for the Circuit

Court to suggest that seaplanes may permissibly travel

one inch above the surface of Lake Angelus, but may

not come to rest on the surface of the water. The District

Court below recognized that the City position in this

regard was a “distinction without a difference.” (App. 2

at 46) Clearly, there is no rational basis for a prohibition

which still permits airmen to fly within inches of a land-

ing area on which the FAA permits operations.

F. The Circuit Court Attempts To Find FAA Basis

For Its Ruling By Holding That Every Time A

Seaplane Ever Touches Down On Any Body Of

Water, It Is “Tantamount To Creating A New

Airport,” Which Is Clearly Wrong.

The Circuit Court attempts to rely on 14 C.ER. Part

157, regarding licensing of Airports. As stated Supra, the

Federal Aviation Regulation expressly states that airport

licensing is not applicable to non-commercial landing

areas which will only accommodate occasional, random

use. (App. 10, 14 C.F.R. 157.1 et seq.)

Further, as stated elsewhere in this Petition, these

landing areas are Not subject to nonregulated Aviation

use. All FAA certificated Pilots must use the Inland Lakes

pursuant to FAA Safety Regulations. In the event any

local Government believes that a lake is not appropriate

for seaplane operations, it need only request that the

impartial FAA, the Agency with the Unique Expertise in

Aviation Safety matters, restrict the waterway if appro-

priate. Indeed, all that Petitioner has ever asserted in

this matter is that the FAA is the authority who has the

final say as to whether a Lake is appropriate for sea-

plane use. Even if Petitioner prevails herein, Petitioner

will only have the use of Lake Angelus as a landing site

if the fair and impartial FAA finds the lake safe for the

intended purpose, as set forth in the Amicus Brief of

the Seaplane Pilots Association. (App. 5 at 75)

eit Hava

‘

One additional troubling aspect regarding the Circuit

Court’s conclusions regarding Part 157 is that this issue,

as well as a number of other issues, were never raised by

the parties, during the pendancy of the proceedings. The

court below used the De Novo procedure, and located and

relied upon this Federal Aviation Regulation and other

caselaw, with no opportunity for the Parties to brief the

matters, or to provide expert guidance to the court prior

to the court rendering its Opinion.

Il. A DISCRIMINATORY CITY ORDINANCE VIO-

LATES A RIPARIAN PROPERTY OWNER/AIR-

MAN’S RIGHT TO DUE PROCESS AND EQUAL

PROTECTION WHERE THE ORDINANCE PRO-

HIBITS A REASONABLE USE OF THE WATER, IS

ARBITRARY, CAPRICIOUS AND NOT REASON-

ABLY RELATED TO A GOVERNMENT INTEREST

The Circuit Court concludes that Mr. Gustafson has

not articulated any public need for seaplane usage of

Lake Angelus, and that the ordinances are rationally

related to public health safety and morals. (App. 1 at

27-29)

The opinion ignores and/or misapprehends the dis-

tinctions between regulation and prohibition; and, the

significance of the articulated evidence of need pre-

sented, in relation to the quantum of need necessary, to

successfully challenge such an ordinance.

A zoning ordinance may not totally exclude a lawful use

of land where there is a need for the land use, and the use

is appropriate for the location. English v. Augusta Town-

ship, 204 Mich. App. 33, 514 N.W.2d 172 (1994) (exclusion

of a manufactured housing park was deemed improper

where need was established through inquiries of devel-

opers as to the availability of land for such parks). An

ordinance which totally excludes an otherwise legitimate

use carries with it a strong taint of unlawful discrimination

and a denial of equal protection of the law as to the

excluded use. English, supra (citing Kropf v. City of Sterling

Heights, 391 Mich. 139, 155-56, 215 N.W.2d 179 (1974)); See

also, France Stone Co. v. Township of Monroe, 802 F. Supp.

90, 104 (E.D. Mich. 1990), Roman Catholic Archbishop v.

Orchard Lake, 333 Mich. 389, 393-94, 53 N.W.2d 308 (1952),

Ottawa Farms v. Polkton Township, 131 Mich. App. 222, 227,

345 N.W.2d 672 (1983) (presumption of validity does not

apply where, on its face, an ordinance totally excludes a

legitimate use from the municipality).

In the instant case, need for the use of the surface of

the lake by aircraft was articulated through the affidavit

of Kyle Kiefling, Manager of the FAA Air Traffic Control

Tower at Oakland Pontiac Airport, and the fact that sea-

planes have in the past and continue to use the surface of

the water. (App. 8; App. 7). Mr. Gustafson submits that

the threshold of need is thereby demonstrated, as mea-

sured by the quantum of need described in English, supra.

The Opinion also states that the record does not

disclose a basis on which to find an arbitrary or unreason-

able prohibition. (App. 1 at 29, 30) The Opinion cites Geor-

gia Power Co. v. Baker, 830 F.2d 163 (11th Cir. 1987) for the

proposition that boats and aircraft cannot safely coexist,

and Appeal of Green and White Copter, Inc., 360 A.2d 283

(Pa. Commw. Ct. 1976) to suggest that seaplane opera-

tions might disturb the tranquility of the area.

To the contrary is the record evidence which dis-

closes that there was no objective inquiry undertaken

by the City which would support the conclusion that

the Ordinances were reasonably related to the achieve-

ment of the stated objectives. By way of example, the

Mayor had no knowledge as to whether the City ever

studied the safety history of seaplanes operating around

boats. (R.56, Altoff Dep. p. 22); The Police Chief knew

of no studies or criteria by which anyone determined

that a seaplane would be more or less safe than the

power boats that are currently permitted on the lake

(R.55, Stefani Dep. p. 69). In fact, the only objective

analysis undertaken at the City’s request was a review

of the lake by James Greshel, Administrator, Safety &

Services Division of the Michigan Bureau of Aeronau-

tics. (App. 9). Mr. Greshel saw no factor which would

prevent aircraft safely taking off or landing on Lake

Angelus:

[T]here is no significant aviation safety or air-

space basis to exclude seaplanes from Lake

Angelus.

(App. 9).

Given the record presented, a rational relationship is

not supported by reference to the cited cases. Mr.

Gustafson has never proposed to operate a seaplane

flight school, which was a factor in Georgia Power Co.,

supra. Nor is Mr. Gustafson proposing to establish a heli-

port in a residential area as in Appeal of Green and White

Copter, Inc., supra. Lake Angelus is a natural lake already

being used for recreational purposes including power boat-

ing and waterskiing. Tranquility is not a factor on the

record presented where the aircraft at issue is quieter

than many of the power boats permitted on the lake. See

e.g., Inland Lakes and Streams Act, Mich. Comp. Laws

Ann. § 281.951, et seq; Mich. Comp. Laws Ann. § 281.1114

(noise levels of 90 decibels or less are acceptable, Com-

pare, United States v. County of Westchester, 571 F. Supp.

786 (S.D.N.Y. 1983) (90% of general aviation fleet has a

noise level of 76 decibels or less).

Finally, the circuit court concludes that Mr. Gustafson

has not been denied equal protection “because all sim-

ilarly situated persons, including all Lake Angelus resi-

dents, watercraft owners, and seaplane pilots are

similarly regulated.” (App. 1 at 30)

Again with all due respect, if this syllogism were

applied in the context of racial equality, separate but

equal laws would still exist. All persons in a community

could be said to be subject to the same regulations

governing access to public resources, with the result

that one sub-classification of persons is prohibited from

enjoying or using that resource.

The constitutional guarantee of equal protection is

interposed against invidious discriminations that are

entirely arbitrary. Baldwin v. North Shore Estates Ass’n., 384

Mich. 42, 179 N.W.2d 380 (1970). There must be a relation

between the classification and the purposes of the act in

which it is found. Baldwin, supra at 51. The legislature

may make classifications of persons, provided such clas-

sifications are based on substantial distinctions and are

in accord with the aims sought to be achieved. Id. How-

ever, such classification must be neither arbitrary nor capri-

cious and must rest on reasonable and justifiable foundations.

Id. If a regulation fails to include and affect all

persons of the same class, and extends immunities or

privileges to one portion and denies them to others of

like kind, by unreasonable or arbitrary sub-classification,

it comes within the constitutional prohibition against

class legislation. Id. at 52.

Punitive damages may be awarded where there is

sufficient evidence from which one can infer that the

actions of the individual administrators were in less than

good faith and were instead intended to further personal

pecuniary interests, to carry out their individual views

regarding an issue, and/or to keep certain classes of

individuals from entering a township. Haskell v. Washing-

ton Township, 864 F.2d 1266, 1278 (6th Cir. 1988).

Again, in this case, the City undertook no efforts to

establish a basis in fact for the prohibition of seaplanes. To

the contrary, the record evidence indicates that seaplanes

are compatible with the environment, as demonstrated by

harmonious seaplane usage over the years. The waters of

the State of Michigan so far as the water is capable of

being owned, belongs to the state, which holds it for the

common benefit of all the people. Collins v. Gerhardt, 237

Mich. 38, 211 N.W. 115 (1926). Robert Gustafson, as one of

the people, is entitled to reasonable use.

A. The Concurring Opinion Of Judge Jones Of

The United States Court Of Appeals For The

Sixth Circuit Raises Concerns About The Effect

Of This Opinion Which Further Show That The

Issues Here Presented Are Broad Reaching And

Involve Much More Than The Rights Of The

Litigants Involved.

Judge Jones expressly states that he was troubled by

the Majority decision in this Opinion, and Concurred

only after numerous attempts at writing a principled

dissent. Judge Jones raises a number of very valid con-

cerns, and shows that the Judge finds significance and

Issues which touch on a host of Federal Issues, and which

will have effect Well Beyond the rights of the litigants to

this action.

As stated supra, the Reversal of the District Court’s

ruling in this matter is a dangerous contravention of the

Intention of Congress to provide a uniform set of Regula-

tions controlling Aviation in the United States. Its effect if

allowed to stand will place serious obstacles to the Fed-

eral Aviation Administration, and adversely effect Avia-

tion Safety, not only of seaplanes, but will have far

reaching affect even in the safe operation of the nation’s

largest and busiest airports. It will also very likely render

a death blow to the Seaplane industry, rendering sea-

planes virtually unusable.

CONCLUSION

For all of the reasons stated, Petitioner, Robert

Gustafson, prays that this Honorable Court grant a Writ

of Certiorari to review the decision of the United States

Court of Appeals for the Sixth Circuit.

Respectfully submitted,

STEVEN M. Cuart & Associates, P.C.

Steven M. Cualr

a Se ee ee

Eee Cee eT ee ee ee

App. 1

APPENDIX 1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1996 FED App. 0065P (6th Cir.)

File Name: 96a0065p.06

Nos. 93-2508 /2537

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ropert GUSTAFSON,

Plaintiff-Appellee/

Cross-Appellant,

On Appear from the

United States District

Court for the Eastern

District of Michigan

vz.

Crry or LAKE ANGELUS;

Donatp AttHorr, Mayor of

the City of Lake Angelus;

MicHaet STEFANI, Chief of

Lake Angelus Police Force,

Defendants-Appellants/

Cross-Appellees.

ee ee ee ee ee ee eee ee”

Decided and Filed February 27, 1996

Before: JONES, CONTIE, and BATCHELDER, Cir-

cuit Judges.

CONTIE, J., delivered the opinion of the court.

JONES (p. 28-30), and BATCHELDER (p. 31), JJ., deliv-

ered separate concurring opinions.

App. 2

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.’ Plaintiff Gustafson cross-appeals from

the district court’s grant of summary judgment to defen-

dants 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.

Plaintiff Robert Gustafson, a seaplane pilot, brought

suit against defendants, the City of Lake Angelus (the

“City”) and various city officials, challenging city ordi-

nances prohibiting the operation of seaplanes on the sur-

face 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

' 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.

ee ee A. eee ee ee en

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oN OI che, Oa eR rR dee ones

App. 3

constitutional rights caused by enforcement of the ordi-

nances and sought an award of attorneys fees pursuant to

42 U.S.C. § 1988.

Plaintiff owns a waterfront home on Lake Angelus,

an inland 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 lake 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:?

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.

App. 4

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 nui-

sance:

J. The landing upon the lands, waters, or ice

surface within the Village of Lake Angelus of

any aircraft, airplane, sailplane, seaplane, heli-

copter, ground effect vehicle, or lighter than air

craft.

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 Sep-

tember 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, appre-

hension 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

App. 5

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 pur-

suant 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 plain-

tiff’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 pre-

empted 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 judg-

ment. 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 constitu-

tional 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 over-

broad, ambiguous, or vague. In addition, the court found

App. 6

that in order to support the ordinances, the City had

presented multiple rationales, which were rationally

related to legitimate government interests. For these rea-

sons, the court granted the City’s motion for summary

judgment on plaintiff’s 42 U.S.C. § 1983 claim and deter-

mined 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, chal-

lenging 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 Suprem-

acy Clause of the Constitution: “[t]he 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 (1982). As

interpreted by Chief Justice Marshall, “in every case, the

act of Congress, or the treaty, is supreme; and the law of

App. 7

the state, though enacted in the exercise of powers not

controverted, must yield to it.” Gibbons v. Ogden, 22 U.S.

(9 Wheat.) 1 (1824). Preemption is predicated on congres-

sional 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 U.S. 707, 713 (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 Comm'n, 461 U.S.

190, 203 (1983). Second, absent express preemption, fed-

eral law may have an implied preemptive effect if Con-

gress revealed this intent by “occupying the field” of

regulation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248

(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 Con-

gress 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 Ass’n, 458 U.S. at 153.

There is a third type of preemption when state law actu-

ally 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 (1963), or where state law

App. 8

“stands as an obstacle to the accomplishment and execu-

tion of the full purposes and objectives of Congress.”

Hines v. Davidowitz, 312 U.S. 52, 67 (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]

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 Con-

gress has not expressly spoken on this issue, but argues

that the City’s ordinances are preempted under the sec-

ond prong of the preemption doctrine — pervasive federal

regulation of the field.

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 regula-

tions enacted pursuant to it implied that Congress

intended that the designation of landing sites for sea-

planes 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) &

3 On July 5, 1994, Congress restated the laws related to

transportation in one comprehensive title. The former Code

sections are provided in brackets.

App. 9

(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 neces-

sary 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 reg-

ulations on the flight of aircraft (including regula-

tions on safe altitudes) for —

(A) navigating, protecting, and identifying air-

craft;

(B) protecting individuals and property on the

ground;

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

App. 10

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(J) 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 (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, pre-

empting 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 preemp-

tive pervasiveness, which is the proper approach estab-

lished 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 gov-

ernments are preempted from establishing or enforcing

App. 11

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 regula-

tion. Id. 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 sea-

planes and aircraft landing sites indicates that the desig-

nation 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 fed-

eral regulation of aircraft noise found in Burbank, we fail

to identify any language in the Act, the regulations pro-

mulgated 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 sea-

planes on Lake Angelus.

The applicable statutes and regulations indicate the

following. In regard to federal preemption, the Act states:

aii i

App. 12

(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 lan-

guage of 41713(b)(1) expressly prohibits States from regu-

lating 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 frame-

work are intrinsically local. For example, the regulation

concerning the procedures governing the establishment

of a civil airport indicates the following:*

FAA determinations.

(a) The FAA will conduct an aeronautical

study of an airport proposal and, after consulta-

tions with interested persons, as appropriate,

issue a determination to the proponent and

+ 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).

App. 13

advise those concerned of the FAA determina-

tion. . . . 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 deter-

mination does not relieve the proponent of respon-

sibility 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.

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.°

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 regula-

tions governing the designation of the location of private

airfields or seaplane landing sites. Under 14 C.FR.

§ 157.7, the FAA recognizes that within the federal avia-

tion framework, local zoning ordinances governing land

5 The definition of airport includes a “seaplane base.” 14

C.F.R. § 157.2.

Cen ee

App. 14

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 take-

off and landing of aircraft, even when facilities

are not provided for sheltering, servicing, or

repairing aircraft, or for receiving or discharg-

ing passengers or cargo.

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 gov-

ernment exerts preeimptive 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 dis-

agree 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.

App. 15

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:

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 “mini-

mum safe altitudes” illustrate an intent by Congress to

pervasively regulate the field and to exert exclusive fed-

eral control over seaplane landing sites. To the contrary,

there is no scheme of federal regulation designating loca-

tions 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 munici-

pal water use. Because there is no pervasive, extensive, or

complete federal regulatory scheme that controls sea-

plane landing sites, we find that no reasonable inference

may be drawn under the second prong of the preemption

doctrine that Congress left no room for the states or local

App. 16

governments to regulate in this area. See Hillsborough

County, Florida, v. Automated Medical Labs., Inc., 471 U.S.

707, 719-20 (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

“[t]he 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 impossi-

ble 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 naviga-

ble airspace — but instead restricts local water use, which

is not preempted by federal law.

In several cases, the FAA has indicated that within

the federal aviation framework, it does not concern itself

with land or water use zoning issues. In Blue Sky Enter-

tainment, Inc. v. Town of Gardiner, 711 F. Supp. 678, 683

(N.D.N.Y. 1989), the FAA challenged portions of a local

ee ee re

App. 17

ordinance which attempted to regulate parachute jump-

ing, aircraft operations, and aircraft noise, but the FAA

specifically stated:

To the extent the ordinance regulates land use in

the Town of Gardiner, it is not preempted by

federal regulation of aviation.

In another case, Dallas/Fort Worth Int'l Airport Bd. v. City

of Irving, 854 S.W.2d 161, 169 (Texas Ct. App.), vacated by,

868 S.W.2d 750 (Tex. 1993), the FAA stated, “whether the

airport is required to obtain a local permit [for an expan-

sion project] is a matter of local law and is not relevant to

the approval of the federal project.”® In Citizens Against

Burlington, Inc. v. Busey, 938 F.2d 190, 197 (D.C. Cir.), cert.

denied, 502 U.S. 994 (1991), the court upheld the municipal

regulation of a heliport, pointing out that the FAA in an

Environmental Impact Statement had written:

In the present system of federalism, the FAA

does not determine where to build and develop

civilian airports, as an owner/operator. Rather,

the FAA facilitates airport development by pro-

viding Federal financial assistance, and reviews

and approves or disapproves revisions to Air-

port Layout Plans at Federally funded airports.

The FAA has, thus, made clear that although FAA regula-

tions preempt local law in regard to aircraft safety, the

navigable airspace, and noise control, the FAA does not

believe Congress expressly or impliedly meant to pre-

empt regulation of local land or water use in regard to the

6 Even though this case was vacated and remanded for

reconsideration in light of a change in state law, the position the

FAA took is instructive.

. maaan

App. 18

location of airports or plane landing sites - whether for

airplanes, helicopters or seaplanes. As a reviewing court,

we must give great deference to the views of a federal

agency with regard to the scope of its authority. Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 844 (1984).”

This limitation on the preemptive impact of the FAA

is also found in the Supreme Court’s opinion in Burbank.

As Justice Rehnquist stated:

A local governing body that owns and operates

an airport is certainly not, by the Court’s opin-

ion, prohibited from permanently closing down

its facilities. A local governing body could like-

wise use its traditional police power to prevent

the establishment of a new airport or the expan-

sion of an existing one within its territorial juris-

diction by declining to grant the necessary

zoning for such a facility.

7 We believe these cases contradict the statement of the

court in Price v. Charter Township of Fenton, 1995 WL 738386 (E.D.

Mich. Nov. 30, 1995), indicating that federal courts have found

land use restrictions and zoning laws regarding prohibitions on

the location of plane landing sites as violative of the Supremacy

Clause. Id. at 4. We find Price distinguishable from the present

case because the regulation at issue in Price concerned the

frequency of flight operations at the plaintiff’s airport, not

whether an airport could be established in the first place. We do

not believe the ordinances in the present case can be fairly

construed as regulations of flight operation, because the FAA

does not interpret the designation of the location of plane

landing sites as such. As the court in Price indicated, if Fenton

Township wanted “to prevent the construction of an airport that

it felt would be disruptive to the surrounding area, it most likely

could do so.” Id.

App. 19

411 U.S. at 653 (Rehnquist, J., dissenting). Justice Rehn-

quist pointed out that “while Congress clearly intended

to pre-empt the states from regulating aircraft in flight, the

author of the bill, Senator Monroney, specifically stated

that the FAA would not have control ‘over the ground space

of airports.’ Id. at 644 (emphasis added). The majority in

Burbank did not disagree with this conclusion and indi-

cated that its holding was limited to regulation of aircraft

noise. By analogy, we believe that if a local governing

body may use its traditional police power to prevent the

establishment of a new airport and control the ground

space of airports, it may also prevent the landing of

aircraft on specified bodies of water within its jurisdic-

tion through its zoning authority, as the City of Lake

Angelus has done in the present case. A prohibition

against landing on a body of water falls in the category of

“control over ground space,” which the legislative history

of the Act indicates is a matter of local control, rather

than in the category of the regulation of aircraft in flight,

which is a matter of preemptive federal control. In

reviewing an issue of preemption, this court must “start

with the assumption that the historic police powers of the

States [are] not to be superseded by the Federal Act

unless there [is a] clear and manifest purpose of Con-

gress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230

(1947). We find no purpose manifested in the Federal

8 We believe it is appropriate to find that the landing of a

seaplane on a lake, not officially designated as a landing area, is

tantamount to, and can be reasonably construed as, the creation

of an airport. Under FAA regulations, the broad definition of

airport includes seaplane bases. 14 C.F.R. § 157.2.

App. 20

Aviation Act to preempt local law concerning the desig-

nation of landing sites for aircraft, including seaplanes.

For this reason, we believe the district court erred in

finding that Burbank was dispositive of the present case,

which does not involve regulation of aircraft noise, but

instead involves control of ground space, which has tra-

ditionally been the province of local governments. See

Wright v. County of Winnebago, 73 Ill. App. 3d 337 (1979)

(in absence of any evidence of pervasive federal regula-

tion, FAA does not preempt local government's power to

restrict location of plane landing areas).

The district court also relied on Command Helicopters,

Inc. v. City of Chicago, 691 F. Supp. 1148 (N.D. Ill. 1988), in

finding that the City’s ordinances are preempted by fed-

eral law. In Command Helicopters, the court determined

that because the FAA had prescribed a regulation govern-

ing external-load lifting operation of helicopters, a local

ordinance involving a more stringent specification was

preempted. We do not believe Command Helicopters is on

point. The local ordinance in Command conflicted with an

existing federal regulation, and the court found that a

uniform and exclusive system of federal regulation gov-

erning helicopter external-load lifting operations was

necessary for the congressional objectives of the FAA to

be fulfilled. In contrast, in the present case, there is no

federal regulation preventing seaplanes from landing on

lakes with which the City’s ordinances conflict, nor is

there a need for nationwide uniformity in order for the

objectives of the FAA to be fulfilled.

We believe the present case is analogous to Faux-

Burhans v. County Commissioners of Frederick County, 674 F.

Supp. 1172 (D. Md. 1987), aff'd, 859 F.2d 149 (4th Cir.

App. 21

1988), cert. denied, 488 U.S. 1042 (1989), in which the

owner of an airplane landing strip, who wanted to create

a private airport, brought suit, challenging the county’s

zoning restrictions on airfield operations. The district

court in Faux-Burhans found that the county zoning

restrictions were not preempted by federal law and the

Court of Appeals for the Fourth Circuit affirmed. The

district court in Faux-Burhans examined the Supreme

Court's opinion in Burbank and found it distinguishable.

The court found that whereas the local noise regulations

in question in Burbank clearly infringed upon federally

preempted regulation of the navigable airspace, the

plaintiff, Faux-Burhans, could point to no federal statute

or regulation explicitly or implicitly preempting regula-

tion of the size or scope of operations at a private airport

(an airport not “otherwise open to air travel in general”).

Id. at 1174. The court stated, “Certainly, these are all areas

of valid local regulatory concern, none of which is feder-

ally preempted, and none of which inhibits in a pro-

scribed fashion the free transit of navigable airspace. And

just as certainly, no federal law gives a citizen the right to

operate an airport free of local zoning control.” Id.

We believe a similar rationale applies in the present

case. Faux-Burhans involved use restrictions imposed on

the creation of a private airport by local zoning ordi-

nances. If a municipality, by zoning ordinances, may

impose use restrictions on the creation of a private air-

port, we believe it may also impose use restrictions on a

body of water within the municipality and prohibit the

landing of seaplanes without being preempted by federal

law. Just as the owner of an airplane does not have the

authority to land wherever he chooses on land and must

App. 22

comply with local zoning ordinances, the owner of a

seaplane does not have the authority to land a seaplane

wherever he chooses.

Another case which is directly on point is Garden

State Farms, Inc. v. Bay, 77 N.J. 439 (1978). The plaintiff, a

company seeking to establish and operate a landing area

for helicopters, argued that the municipal ordinance pro-

hibiting the creation and operation of a helistop was

preempted by federal law. The court in Garden State Farms

held that federal legislation has not preempted state and

local jurisdiction with respect to the placement of private

helistops. Id. at 446. The court stated that the local regula-

tion of small, relatively isolated, privately owned heli-

stops did not present a situation where “preemption may

be predicated upon a felt need for a monolithic system of

regulation.” Id. at 446-47. The court explained:

[A]s a policy matter, if federal preemption were

found, . . . state and local governments, which

are the only bodies that currently license pri-

vately operated helistops and heliports, would

be shorn of this regulatory responsibility. Con-

gress could not have intended to create a gov-

ernmental vacuum with respect to privately

operated helistops.

Id. at 449.

Similar policy concerns are at issue in the present

case. It is not feasible for Congress to determine how

local land or bodies of water within a municipality are to

be used in regard to the location of aircraft landing sites.

The needs of a state such as Alaska, in which seaplanes

play a vital commercial role, and Michigan, in which

seaplanes are used primarily for recreation, are different,

App. 23

and this difference requires local, not national, regulation.

The federal government, rather than “preempting the

field,” has not entered the field and exerts no control over

the location of seaplane landing sites. If the federal gov-

ernment intended to preempt, we believe there would be

a mass of regulations concerning seaplane landing sites,

which simply do not exist. No federal statute or regula-

tion addresses the action prohibited by the City of Lake

Angelus ordinances or delineates the boundaries of local

control in regard to seaplane landing sites. We find this

absence of federal regulation significant. The Supreme

Court, in Pacific Gas & Electric Co. v. State Energy Resources

Conservation and Dev. Comm'n, 461 U.S. 190 (1983), stated

that the Court must focus on whether the matter on

which the local government asserts the right to act is in

any way regulated by the federal Act and found that the

only reasonable inference to be drawn from silence is that

Congress intended local governments to continue to reg-

ulate. Id. at 208. If federal preemption were found in the

present case, a “governmental vacuum” would occur

because the federal government does not regulate the

location of seaplane landing sites, and state and local

governments would be shorn of their regulatory author-

ity. See Garden State Farms, 77 N.J. at 449. The result

would be entirely impracticable, and every lake in the

United States would become a potential airport for sea-

planes. In regard to the location of commercial airports,

the FAA has indicated that it will not adopt regulations

controlling local land use, because the needs of each

locality are unique and different. See 14 C.E.R. § 157.7.

Courts have recognized that federal aviation law does not

preempt local regulation of the location of airports or

App. 24

heliports, which must comply with local zoning ordi-

nances. Just as Congress did not intend to create a regula-

tory vacuum with respect to the location of commercial or

privately operated airports and heliports on land, we

believe Congress did not intend to create a vacuum with

respect to the location of seaplane landing sites on water,

but left the matter to local control.

Finally, our conclusion that the Supreme Court's

decision in Burbank does not preempt all state and local

zoning power with respect to aircraft landing sites is

supported by ample case law. See Condor Corp. v. City of

St. Paul, 912 F.2d 215 (8th Cir. 1990) (city’s zoning ordi-

nance prohibiting initial siting of heliport not preempted

by federal law); San Diego Unified Port Dist. v. Gianturco,

651 F.2d 1306 (9th Cir. 1981) (local governments’ noise

abatement plans that do not impinge on aircraft opera-

tions not preempted), cert. denied, 455 U.S. 1000 (1982);

City of Cleveland, Ohio v. City of Brook Park, Ohio, 893 F.

Supp. 742 (N.D. Ohio 1995) (the FAA does not possess

zoning authority merely by virtue of its broad mandate to

regulate matters relating to aviation; state or local zoning

or land use laws are not preempted); Wood v. City of

Huntsville, 384 So. 2d 1081 (Ala. 1980) (although Congress

has extensively and exclusively regulated use of the navi-

gable airspace of the United States, state and local gov-

ernments retain substantial control over ground usage);

Bethman v. City of Ukiah, 216 Cal. App. 3d 1395 (1989) (no

federal preemption of state or municipal regulation of the

location and environmental impact of airports); Wright v.

_ County of Winnebago, 73 Ill. App. 3d at 344 (FAA does not

preempt local zoning authority from determining appro-

priate use of land; the right not to have an airport in the

;

App. 25

first place is local); Harrison v. Schwartz, 319 Md. 360

(1990) (a zoning ordinance that does not regulate aircraft

noise emissions or the actual conduct of flight operations

may withstand a preemption argument), cert. denied, 498

U.S. 851 (1990); People v. Altman, 304 N.Y.S.2d 534, (N.Y.

Dist. Ct. 1969) (town ordinance prohibiting seaplanes

from taking off or landing upon any portion of town’s

channel system except in an emergency is in harmony

with federal law on the subject and is not preempted).

To conclude, there is a distinction between the regu-

lation of the navigable airspace and the regulation of

ground space to be used for aircraft landing sites.

Although the regulation of the airspace of the United

States has been preempted by Congress, we find Con-

gress did not intend to preempt the regulation of water

use in regard to aircraft landing sites as indicated by an

examination of the Federal Aviation Act, the attendant

regulations, the legislative history of the Act, and by

statements made by the FAA itself. As the court in City of

Cleveland stated:

The Aviation Act grants to the FAA authority to

regulate the use of airspace, but this does not of

necessity lead to the conclusion that localities

are no longer free to regulate the use of land

within their borders, even where land use regu-

lations may have some tangential impact on the

use of airspace.

893 F. Supp. at 751. Because the City of Lake Angelus

could lawfully prohibit airplane and helicopter landings

on city land under established case law, it logically fol-

lows that the City may also prohibit seaplane landings on

App. 26

Lake Angelus under its zoning authority. Federal pre-

emption of the airspace under the Act does not limit the

right of local governments to designate and regulate air-

craft landing areas, including seaplane landings on lakes.

Therefore, the Federal Aviation Act does not preempt

City of Lake Angelus ordinances 25(J) and 66(E), which

prohibit seaplanes from landing or operating on the sur-

face of Lake Angelus. The district court is reversed on

this issue.?

Ill.

On cross-appeal, plaintiff alleges that as a riparian

property owner and airman qualified to safely operate

seaplanes, the ordinances at issue have deprived him of

due process and equal protection in violation of the Four-

teenth Amendment, and that the ordinances are exclu-

sionary, arbitrary, capricious and not reasonably related

to a legitimate government interest.

° Plaintiff also argues that the ordinances are preempted by

state law, relying on Mich. Comp. Laws Ann. § 281.1017 and the

Michigan Aeronautics Code, Mich. Comp. Laws Ann. § 259.1 et

seq. We disagree. There is nothing in these provisions to indicate

the legislature’s intent to take over a municipalities’

responsibilities in the area of land or water use, development, or

the location of aeronautical landing sites. See Garden State Farms,

Inc., 77 N.J. at 445 (although state aviation act embraced a

comprehensive scheme of state regulation to promote safety and

aeronautical progress, it did not preclude municipalities from

determining whether or not aeronautical facilities should be

constructed within their boundaries).

Pe ee ee ,

App. 27

Under Michigan law, a party alleging exclusionary

zoning must be prepared to establish both that the exclu-

sion exists throughout the municipality and that there is a

demonstrated need for the use he proposes. Fremont Tp. v.

Greenfield, 132 Mich. App. 199, 204 (1984). The City of

Lake Angelus is Michigan’s smallest city by population

and is an entirely residential community. The City argues

that although plaintiff Gustafson wants to land seaplanes

on Lake Angelus, he has not articulated any public need

for such lake usage. The City also contends that a local

legislative body’s determination of the public interest and

adoption of regulations which are rationally related to it

must be deferred to. Pearson v. City of Grand Blanc, 961

F.2d 1211, 1223 (6th Cir. 1992).

We agree with the City. As this court stated in Stupak

~ Thrall v. United States, 70 F. 3d 881 (6th Cir. 1995):

The Michigan Supreme Court has explicitly held

that local governments may regulate their citi-

zens’ riparian rights pursuant to their inherent

police powers. In Miller v. Fabius Township Board,

366 Mich. 250, 114 N.W.2d 205 (1962), the court

allowed time restrictions on waterskiing. In

Square Lake Hills Condo. Assn. v. Bloomfield Town-

ship, 437 Mich. 310, 471 N.W.2d 321 (1991), the

court allowed regulation of boat docking and

launching. In Square Lake Hills, especially, the

court made it clear that plaintiffs’ recreational

riparian rights were subject to regulation for the

protection of “health, safety, and welfare” of the

general public. Id., 471 N.W.2d at 322.

Id. at 889. See also Hess v. West Bloomfield Twp., 439 Mich.

550 (1992) (a township has the authority to regulate rip-

arian rights as part of its zoning power). Thus, Michigan

App. 28

law makes it clear that riparian rights are not absolute,

but are subject to reasonable regulation, and munici-

palities can restrict boat usage by riparian owners. It

follows by analogy that seaplane usage by riparian

owners can also be restricted. The riparian rights asserted

by plaintiff Gustafson are not absolutely protected by the

Fourteenth Amendment, but instead are subject to rea-

sonable regulation.

The test under Michigan law for determining

whether an ordinance is reasonable requires an assess-

ment of the existence of a rational relationship between

the exercise of police power and the public health, safety,

morals, or general welfare in a particular manner in a

given case. Square Lake Hills Condo. Ass'n v. Bloomfield

Township, 437 Mich. 310, 317 (1991). Moreover, as this

court has stated in Pearson, where zoning legislation is

subject to substantive due process attack, the scope of

review by the federal court is even more deferential than

for review of state administrative action. 961 F.2d at 1223.

Although when reviewing administrative action, the fed-

eral court must make an extremely limited review of the

evidence, when reviewing legislative acts, such as zoning

ordinances, this is not permitted. The only permissible

inquiry is whether the legislative action is rationally

related to legitimate land use concerns. Id.

In the present case, we find that the City’s concern

with “noise,!° danger, apprehension of danger, . . . de-

struction of property values, and interference with other

10 Plaintiff's argument that the ordinances are preempted

because one of the rationales provided by the City for their

enactment was the prevention of aircraft noise has no merit. As

the court in Wright v. County of Winnebago, 73 Ill. App. 3d at 344,

App. 29

lawful uses of the lake enjoyed by the great majority of

citizens, including boating, sailing, fishing, swimming,

and other recreational uses” fulfills the requirements of

this test. In Georgia Power Company v. Baker, 830 F.2d 163

(11th Cir. 1987), the court upheld the right of a federally

licensed power company to prohibit seaplanes from using

its reservoirs, even though its license, issued by the Fed-

eral Energy Regulatory Commission, required that it per-

mit the use of the reservoirs “for the purpose of full

public utilization of such lands and water for navigation

and for outdoor recreational purposes, including fishing

and hunting.” Id. at 164. The court noted that “Georgia

Power’s primary concern in prohibiting seaplanes was

the safety of the boating public,” id., and “[mJore impor-

tantly, the company decided that seaplane operation on

its reservoirs would present significant hazards both to

the boating public and to seaplane pilots. Take-off and

landing constitute a danger in themselves; and the

exposed propeller of seaplanes poses an additional haz-

ard to people on the lake as well as around docking

facilities and boat ramps.” Id. at 167. The court ruled that

Georgia Power’s prohibition of seaplanes on its reser-

voirs was a reasonable limitation. We find that for similar

reasons, the City of Lake Angelus ordinances are reason-

able limitations on the use of Lake Angelus and are

rationally related to a legitimate government interest in

safety.

pointed out, once an airport is operating, it may be that only the

FAA can regulate the resulting noise problem, but the right to

choose not to have an airport in the first place on the basis of

aircraft noise is local and is not preempted.

App. 30

In Appeal of Green and White Copter, Inc., 360 A.2d 283

(Pa. Commw. Ct. 1976), the court found that the town-

ship’s total exclusion of heliports from residential areas

was designed to protect the public interest. The court

stated:

The potential safety problems and disturbances

to the tranquility of the area are obvious. While

air travel facilities are not nuisances per se, they

may become nuisances in fact in a particular

situation. Necessarily, the proposed use in this

case would-impinge upon the rights of neigh-

boring landowners in the use and enjoyment of

their property. If any further evidence of the

potential for interference with adjoining prop-

erty is required, it is provided by the fact that

air flights over property have been found to

constitute a taking of land near airports. See,

e.g., Griggs v. Allegheny County, 369 U.S. 84

(1962).

Id. at 285.

We believe that similar legitimate concerns about the

dangers inherent in the landing and taking off of sea-

planes and the adverse effect on the “tranquility of the

area” by low-level air traffic are found in the present

case. The record does not disclose a basis on which to

find that the City’s prohibition against seaplane landings

on Lake Angelus is arbitrary or unreasonable. Moreover,

plaintiff has not been denied equal protection of the law,

because all similarly situated persons, including all Lake

Angelus residents, watercraft owners, and seaplane pilots

are similarly regulated. See City of Shreveport v. Conrad,

212 La. 737, 744 (1947). The district court’s denial of

plaintiff’s 42 U.S.C. § 1983 claim that the ordinances

App. 31

deprived him of his due process and equal protection

rights under the Fourteenth Amendment is therefore

affirmed.

In regard to attorneys fees, a claim premised on a

violation of the Supremacy Clause through preemption is

not cognizable under 42 U.S.C. § 1983. J. & J. Anderson,

Inc. v. Town of Erie, 767 F.2d 1469, 1476-77 (10th Cir. 1985).

Since plaintiff’s alleged violations of due process and

equal protection are unmeritorious, the ordinances have

not violated any civil right that is redressable under 42

U.S.C. § 1983, and the district court properly denied

attorneys fees pursuant to 42 U.S.C. § 1988.

IV.

To conclude, the district court is affirmed in part and

reversed in part. The district court’s grant of summary

judgment to defendants in regard to plaintiff’s 42 U.S.C.

§§ 1983 and 1988 claims is AFFIRMED. The district

court’s decision in favor of plaintiff that ordinances 66(E)

and 25(J) are preempted by federal law is REVERSED,

and the case is remanded to the district court for proceed-

ings consistent with this opinion. The Federal Aviation

Act does not occupy the field of water use regulations in

such a way as to preempt the City of Lake Angelus

ordinances.

—_-——————$—$___

NATHANIEL R. JONES, Circuit Judge, concurring.

After numerous attempts at drafting a principled dissent

to the majority opinion, I have come to the conclusion

App. 32

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 regu-

lations 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 regula-

tion 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 specifica-

tions, takeoff and landing rules, and safety standards, it

would be impossible to operate a national air transporta-

tion system.

App. 33

City of Burbank v. Lockheed Air Terminal provides a

telling 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 control-

ling air traffic flow. The difficulties of schedul-

ing flights to avoid congestion and the

concomitant decrease in safety would be com-

pounded. :

Burbank, 411 U.S. at 639. I reiterate the Court’s concern

with local governments’ ability to interfere with compre-

hensive federal regulatory programs. The line between

permissible local regulation, such as the zoning regula-

tion in this case, and impermissible encroachments on

federal power in the name of zoning or other traditional

state police power functions, such as 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,

App. 34

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 contin-

ued need for a strong national government.

In their charge to shift power from the national gov-

ernment 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 consist-

ing 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

App. 35

our national government before attempting to undermine

its authority.

ALICE M. BATCHELDER, Circuit Judge, concurring.

[ write separately only to observe that Judge Jones’s

separate concurrence serves to remind us how very far

we have strayed from the government described by its

founders during this nation’s birth.

The powers delegated by the proposed Consti-

tution to the federal government are few and

defined. Those which are to remain in the State

governments are numerous and indefinite. The

former will be exercised principally on external

objects, as war, peace, negotiation, and foreign

commerce; with which last the power of taxation

will, for the most part, be connected. The

powers reserved to the several States will

extend to all the objects which, in the ordinary

course of affairs, concern the lives, liberties, and

properties of the people, and the internal order,

improvement, and prosperity of the State.

THe Feperauist No. 45, at 238 (James Madison) (G. W.

Carey & J. McClellan eds., 1990).

If those who meet in the name of federalism seek, as

Judge Jones puts it, “to see power wrenched from the

hands of the federal government,” to devise “strategies to

transfer certain areas under federal control to the states,”

and “suggest[ ] proposals for interjecting state lawmakers

into national rulemaking processes,” they do so because

the national government has usurped that power from

the states and the people, to whom it was originally

reserved. Compare U.S. Const. art. I, § 8 with U.S. Const.

amend X,

————

—

App. 36

APPENDIX 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT GUSTAFSON, Lake Angelus

Riparian Property Owner,

Plaintiff,

-Vs- Case No: 92 CV 73976 DT

Hon. Paul V. Gadola

CITY OF LAKE ANGELUS, DONALD

ALTHOFF, MAYOR OF THE CITY

OF LAKE ANGELUS, MICHAEL

STEFANI, CHIEF OF LAKE

ANGELUS POLICE FORCE,

Defendants.

STEVEN M. CHAIT P33747

Attorney for Plaintiff

1000 Maccabees Center

25800 Northwestern Highway

P.O. Box 222

Southfield, MI 48037-0222

(313) 746-000700 [sic]

JAMES L. HOWLETT P15187

JOHN D. STARAN P35649

Attorneys for Defendant

200 E. Long Lake Road, Ste. 110

Bloomfield Hills, MI 48304

(313) 645-9400

App. 37

MEMORANDUM OPINION AND ORDER

GRANTING PLAINTIFF’S MOTION FOR

DECLARATORY

JUDGMENT AND A PERMANENT

INJUNCTION, AND GRANTING

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT ON PLAINTIFF’S

SECTION 1983 CLAIMS

GADOLA, District Judge.

Plaintiff Robert Gustafson brings this action against

defendants City of Lake Angelus (the “City”) and various

city officials, alleging violations of federal statutory and

constitutional rights. Plaintiff is seeking declaratory and

injunctive relief against the enforcement of City ordi-

nances which prohibit the operation of seaplanes on the

surface of Lake Angelus. Additionally, plaintiff seeks an

award of attorney fees under 42 U.S.C. § 1988 for the

alleged violation of his constitutional rights caused by

enforcement of the ordinances. Before the court are the

parties’ cross motions for summary judgment and plain-

tiff’s motions for declaratory judgment and a permanent

injunction. For the reasons discussed below, the court will

award partial relief to plaintiff.

I. Background Facts

Plaintiff owns a waterfront home on Lake Angelus.

He has been certified as a seaplane pilot by the Federal

Aviation Administration (“FAA”). Lake Angelus is an

inland lake that is approximately one and one-half miles

long and three-quarters of a mile wide. The City is a

residential community in Oakland County, Michigan,

App. 38

consisting of about 140 homes. Defendant Donald Althoff

is the mayor of the City, and defendant Michael Stefani is

its chief of police. The City lies within the airport traffic

area and control zone of the FAA air traffic control tower

located at the Oakland-Pontiac Airport.

On August 9, 1991, plaintiff landed a rented seaplane

on Lake Angelus. He docked and moored the plane at his

home on the shore of the lake. Subsequently, a city police

officer contacted plaintiff and warned him that he had

violated two city ordinances concerning seaplanes. He

was warned not to land his seaplane on the lake again.

Plaintiff was allegedly in violation of City ordinances

25(J) and 66(E). Ordinance 66(E) is an amendment to the

City’s zoning ordinance that reads in relevant part as

follows:

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 boats, watercraft, and aircraft powered

by internal combustion engines, other than con- —

ventional inboard motorboats.

Ordinance 25(J) is an amendment to the City’s nuisance

ordinance and it declared the following to be a nuisance:

J. The landing upon the lands, waters, or ice

surface within the Village of Lake Angelus of

any aircraft, airplane, sailplane, seaplane, heli-

copter, ground effect vehicle, or lighter than air

craft or the flying of any such craft in the air-

space above the Village of Lake Angelus at an

altitude of less than five hundred feet.

App. 39

After plaintiff was warned not to land his seaplane

on the lake, he asked the city council to rescind or modify

the ordinances. Apparently 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,” and “destruction

of property values,” among others, as ways in which the

welfare of the City was protected by the ordinances.

Plaintiff subsequently filed this action, contending

that the ordinances are preempted by federal and state

law and/or violate his constitutional rights. He is asking

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 enjoin-

ing defendants from enforcing the ordinances; and (3)

award costs and attorney fees to plaintiff pursuant to 42

U.S.C. § 1988 for the alleged constitutional violations

under 42 U.S.C. § 1983.

Defendants argue that plaintiff lacks standing and

that he has not presented an actual controversy to the

court. Furthermore, defendants contend that the ordi-

nances are not preempted and are regulations that are

rationally related to a legitimate state interest.

The parties are in agreement that there are no genu-

ine issues of material fact and that the case is ready to be

decided by the court based on the applicable law.

App. 40

Il. Justiciability

Defendants present multiple theories as to why

plaintiff’s action is not justiciable. Defendants claim that

this case does not involve an “actual controversy”

because plaintiff lacks standing and because the dispute

is not ripe. The basis for this claim is the fact that no one

has ever been arrested or prosecuted under either ordi-

nance. Furthermore, defendants claim that no one has

even been warned about the altitude restrictions con-

tained in Ordinance 25(J).

Plaintiff argues that he presents an actual contro-

versy because of the warning issued to him in the sum-

mer of 1991. At that time, a city police officer told

plaintiff that he was in violation of the ordinances and

that he would be arrested if he landed a seaplane on the

lake again. Plaintiff was also warned later by other City

officials against landing a seaplane on the lake.

In order to have standing,

at an irreducible minimum, Art. III requires the

party who invokes the court’s authority to

“show that he personally has suffered some

actual or threatened injury as a result of the

putatively illegal conduct of the defen-

dant,” . . . and that the injury “fairly can be

traced to the challenged action” and “is likely to

be redressed by a favorable decision.”

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 472,

102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omit-

ted).

a a a ee

App. 41

The court finds that plaintiff has met his burden in

establishing his standing to sue. Plaintiff has shown that

he was threatened with arrest and prosecution. The court

will not require plaintiff to get himself arrested and fined

in order to address his challenge. It is clear that the threat

of prosecution is fairly traceable to the City and its offi-

cials who have threatened to enforce the ordinances.

Finally, a favorable decision for the plaintiff invalidating

and enjoining the ordinances would remove the threat of

prosecution hanging over plaintiff's head and allow him

to fly and land seaplanes on Lake Angelus.

Plaintiff's claim is also ripe for adjudication. Ripe-

ness, although similar to a challenge to standing, presents

different prudential concerns. In order to determine if a

claim is ripe, the court must evaluate the hardship to the

parties of withholding judicial determination and

whether the issues are fit for decision. Abbott Labs., Inc.

v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18

L.Ed.2d 681 (1967). The hardship to plaintiff is clear. Until

a determination of his claim is made, he is prevented by

the ordinances from landing a seaplane on the lake. The

issues in this case are also fit for determination. Plaintiff

presents purely legal issues of preemption which would

not be aided by further factual development. See Blue

Sky Entertainment, Inc. v. Town of Gardiner, 711 F.Supp.

678, 687 (N.D.N.Y.1989). As such, plaintiff’s claim is ripe

for adjudication by this court.

The court finds that plaintiff has presented an “actual

controversy” before this court. The action before the

court satisfies the requirements of 28 U.S.C. § 2201(a) and

Article III of the Constitution. It is not a “hypothetical”

case, as defendants claim, but rather a real controversy

App. 42

over the enforcement of ordinances that restrict the activ-

ities of plaintiff. Therefore, plaintiff's claim is justiciable

in this court.

Ill. Federal Preemption

Article VI of the Constitution declares that federal

law “shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing

in the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. As a result,

state or local laws that conflict with federal law and

regulations are preempted. Malone v. White Motor Corp.,

435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978).

Federal laws can invalidate local laws in several dif-

ferent ways. First, Congress can preempt state law “by so

stating in express terms.” Hillsborough County v. Auto-

mated Medical Lab., Inc., 471 U.S. 707, 712-13, 105 S.Ct.

2371, 2375, 85 L.Ed.2d 714 (1985). Secondly, where Con-

gress has not spoken expressly, “[t]he scheme of federal

regulation may be so pervasive as to make reasonable the

inference that Congress left no room for the States to

supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Field

preemption can also occur where the “federal interest is

so dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.”

Hillsborough, 471 U.S. at 713, 105 S.Ct. at 2375. “Even

where Congress has not completely displaced state regu-

lation in a specific area, state law is nullified to the extent

that it actually conflicts with federal law.” Id. A state law

conflicts with federal law when compliance with both is a

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App. 43

“physical impossibility” or when state law is an “obsta-

cle” to the objectives of Congress. Id. State or local laws

regulating safety matters are favored unless it was the

“clear and manifest purpose of Congress” that federal

law would supersede the police powers of the state. Rice,

331 U.S. at 230, 67 S.Ct. at 1152.

Plaintiff claims that ordinances 25(J) and 66(E) are

preempted by the Federal Aviation Act of 1958 (the

“Act”), 49 U.S.C.App. sections 1301-1551, and the appli-

cable regulations issued by the FAA. Because Congress

has not expressly spoken on this issue, the court must

determine whether the ordinances at issue are preempted

under one of the other doctrines governing preemption

enunciated by the Supreme Court.

The court finds that the regulations in this area

enacted pursuant to the Federal Aviation Act and the

dictates of the Act itself, imply that Congress intended

that this area be preempted. Section 1508(a) of the Act

states: “The United States of America is hereby declared

to possess and exercise complete and exclusive national

sovereignty in the airspace of the United States, including

the airspace above all inland waters.” 49 U.S.C.App. sec-

tion 1508(a). Furthermore, Congress expressly directed

the formulation of comprehensive regulations governing

aircraft operations. See 49 U.S.C.App. §§ 1348(a) & (c).1

Section 1348(a) reads in relevant part: The

Administrator . . . is authorized and directed to develop plans

for and formulate policy with respect to the use of navigable

airspace; and assign by rule, regulation, or order the use of the

navigable airspace under such terms, conditions, and

limitations as he may deem necessary in order to insure the

App. 44

The Supreme Court addressed preemption under the

Federal Aviation Act in City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547

(1973). In Burbank, the Court held that the local noise

abatement ordinance, enacted pursuant to the city’s

police powers, was preempted. The Court cited sections

1348(a) & (c) and 1508 in support of its conclusion that

Congress intended to give the FAA “broad authority to

regulate the use of the navigable airspace, ‘in order to

insure the safety of aircraft and the efficient utilization of

such airspace...’ and ‘for the protection of persons and

property on the ground.’” Id. at 627, 93 S.Ct. at 1856

(quoting sections 1348(a) & (c)). Furthermore, the Court

found that the “Federal Aviation Act requires a delicate

balance between safety and efficiency and the protection

of persons on the ground. . . . The interdependence of

these factors requires a uniform and exclusive system of

federal regulation if the congressional objectives underly-

ing the Federal Aviation Act are to be fulfilled.” Id. at

638-39, 93 S.Ct. at 1862 (citation omitted).

Subsequent courts have followed the Supreme

Court’s guidance in Burbank in determining whether

safety of aircraft and the efficient utilization of such airspace. 49

U.S.C.App. § 1348(a). Section 1348(c) provides as follows: The

Administrator . .. is... authorized and directed to prescribe air

traffic rules and regulations governing the flight of aircraft, for

the navigation, protection, and identification of aircraft, for the

protection of persons and property on the ground, and for the

efficient utilization of the navigable airspace, including rules as

to safe altitudes of flight and rules for the prevention of collision

between aircraft, between aircraft and land or water vehicles,

and between aircraft and airborne objects. Id. § 1348(c).

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App. 45

local ordinances are preempted under the Federal Avia-

tion Act. See United States v. City of Berkeley, 735 F.Supp.

937 (E.D.Mo.1990) (FAA regulations preempt city’s build-

ing code); Blue Sky Entertainment, Inc. v. Town of Gar-

diner, 711 F.Supp. 678 (N.D.N.Y.1989) (court finds in

favor of small airport operators; sections of town ordi-

nance regulating low-flying aircraft, parachute jumping,

flight paths, noise, and insurance requirements were pre-

oMbted); Command Helicopters, Inc. v. City of Chicago,

691 F.Supp. 1148 (N.D.II1.1988) (court nullifies local ordi-

nance governing loading operations of helicopters);

United States v. City of Blue Ash, 487 F.Supp. 135

(S.D.Ohi01978) (court found that city ordinance restrict-

ing noise was preempted by federal law); see also Alle-

gheny “Airlines, Inc. v. Cedarhurst, 238 F.2d 812 (2d

Cir.1956) (village ordinance preventing aircraft from fly-

ing over village at less than one thousand feet was uncon-

stitutional).

The Command case is especially persuasive in apply-

ing the Supreme Court’s guidance in Burbank. In Com-

mand, the court found that the Federal Aviation Act and

its attendant regulations occupied the field of the regula-

tion of aircraft operations. Command, 691 F.Supp. at 1151.

The court found a need for uniformity in the require-

ments governing the operation of aircraft, thereby avoid-

ing a “substantial negative effect on commerce.” Id.

In applying the Supreme Court’s holding in Burbank

to the circumstances at issue in this case, it is clear that

the ordinances are preempted. The FAA has promulgated

extensive regulations governing aircraft operations. Part

91 “prescribes rules governing the operation of aircraft

. within the United States.” 14 C.F.R. § 91.1(a). It

App. 46

provides regulations governing all aspects of the opera-

tion of aircraft. Section 91.119 provides:

Minimum safe altitudes: General

Except when necessary for takeoff or landing,

no person may operate an aircraft below the

following altitudes:

tude 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.

Id. Additionally, section 91.115 regulates the operation of

aircraft on the surface of water, providing guidance for

the use of seaplanes.?

These regulations, along with the Federal Aviation

Act, demonstrate congressional intent to preempt local

regulations governing flight operations. Ordinance 25(J)

prohibits seaplanes from flying in the airspace of the City

at less than 500 feet, it also prohibits seaplanes from

landing on the lake. Ordinance 66(E) prohibits the opera-

tions of a seaplane on the surface of the lake. The court

finds that these two sections are preempted by federal

? It provides: 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.

Id. § 91.115.

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App. 47

law and regulations. Defendants ask the court to bifur-

cate the ordinances, separately considering the altitude

restriction and the restriction on seaplane operations on

the surface of the lake. The court notes, however, that the

FAA regulations specifically deal with both aspects of the

ordinances. 14 C.F.R. §§ 91.115 & 91.119. Defendants seem

willing to give up the altitude restriction, but not the

landing portion. The court finds this a distinction without

a difference. The FAA provides safety regulations for

take-offs, landings, and operations on water, as well as

allowable altitudes. The purpose of the City ordinances,

taken as a whole, is to prohibit seaplane operations of any

kind on the lake or up to 500 feet above the City. This is

clearly contrary to the FAA regulations and federal stat-

utes, and thus, the ordinances are preempted.

Defendants cite two cases that concern local ordi-

nances governing seaplanes in support of their position

that preemption does not apply in this case. See City of

Shreveport v. Conrad, 212 La. 737, 33 So.2d 503 (1947);

People v. Altman, 61 Misc.2d 4, 304 N.Y.S.2d 534

(N.Y.Sup.Ct.1969). The court does not find them persua-

sive. Conrad did not even address preemption and was

* Defendants also cite Blue Sky and Faux-Burhans v.

County Comm’rs, 674 F.Supp. 1172 (D.Md.1987), aff’d without

opinion, 859 F.2d 149 (4th Cir.1988), cert. denied, 488 U.S. 1042,

109 S.Ct. 869, 102 L.Ed.2d 992 (1989). As already noted,

however, the court in Blue Sky invalidated several local

ordinances because they were preempted by FAA regulations.

Faux-Burhans is also inapplicable because that case involved

land use regulations governing the development of land in the

construction of an airport. It did not involve ordinances that

directly regulated aircraft flight operations as this case does.

App. 48

decided before Burbank and before the Federal Aviation

Act was even enacted. In Altman, a New York court

found that a local ordinance prohibiting seaplane land-

ings in a system of channels was not preempted because

it was in harmony with a federal statute. Altman, how-

ever, was decided before Burbank, and the court did not

address the FAA regulations at issue in this case.

The sections of the City ordinances at issue conflict

with and are obstacles to FAA regulations. In addition,

the comprehensive nature of the federal regulations and

laws in the area of flight operations, landings, takeoffs,

and water operations indicates that federal law occupies

the field. The portion of Ordinances 25(J) and 66(E)

restricting the operation of seaplanes is therefore pre-

empted.

Because the court finds that the ordinances are pre-

empted by federal law, the court will not address plain-

tiff’s claim that the ordinances are also preempted by

state law.

IV. Constitutidnal Claims

Plaintiff also presents a claim under 42 U.S.C. § 1983,

for violations of his constitutional rights. Even though the

court has already decided the case based on federal pre-

emption, the court will address the section 1983 claim in

order to determine if plaintiff is deserving of costs and

attorney fees under 42 U.S.C. § 1988.

After examining plaintiff’s constitutional claims, the

court finds that they are without merit. Plaintiff has failed

to show that his due process or equal protection rights

App. 49

were in any way violated.* He has made no showing that

the ordinances are overbroad, ambiguous, or vague. In

addition, defendants have presented multiple rationales

supporting the ordinances. The court finds that each of

them is rationally related to a legitimate state interest. For

these reasons, the court will grant defendants’ motion for

summary judgment on plaintiff’s section 1983 claims.

V. Conclusion

Pursuant to 28 U.S.C. § 2201, the court will declare

that those portions of Ordinances 25(J) and 66(E) govern-

ing the operation of seaplanes are preempted by federal

law. The court will issue a permanent injunction to the

extent that plaintiff has prevailed on the merits on his

preemption claims. Blue Sky, 711 F.Supp. at 697; 11

Wright & Miller, Federal Practice and Procedure: Civil

§ 2944, at 398 (1973). Plaintiff has no adequate remedy at

law and the balance of equities favors him.5 Without an

injunction, plaintiff would be prevented from operating a

seaplane on Lake Angelus or at an altitude below 500

* The court also notes that a section 1983 claim premised on

a violation of the supremacy clause through preemption is not

cognizable. J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469,

1476-77 (10th Cir.1985); Pirolo v. City of Clearwater, 711 F.2d

1006 (11th Cir.1983).

° The Sixth Circuit set forth the factors to be considered in

granting a preliminary injunction in In re DeLorean Motor Co.,

755 F.2d 1223, 1229 (6th Cir.1985) (success on the merits,

irreparable injury, harmful effect to third parties, and public

interest). The court will consider these factors in making its

determination of whether to grant a permanent injunction in

this case.

App. 50

feet. Third parties will not be harmed by the injunction

because anyone operating a seaplane on the lake will

have to do so in compliance with FAA safety regulations.

Finally, the public interest will be served by the injunc-

tion as preemption of these ordinances will guarantee a

uniform set of regulations governing aircraft operations.

Based on this analysis, the court will order the City and

its employees and officials not to enforce the ordinances

as described above.

ORDER

Therefore, it is hereby ORDERED that plaintiff's

motion for a permanent injunction is GRANTED.

It is further ORDERED that defendants’ motion for

summary judgment on plaintiff’s section 1983 and 1988

claims is GRANTED.

SO ORDERED.

App. 51

APPENDIX 3

No. 93-2537/2508

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT GUSTAFSON,

Plaintiff-Appellee /

Cross-Appellant, ORDER

. (Filed

April 3, 1996)

CITY OF LAKE ANGELUS, ET

AL.,

Defendants-Appellants /

Cross-Appellees.

ee eee ee ee ee ee ee ee

BEFORE: JONES, CONTIE, and BATCHELDER, Circuit

Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

App. 52

petition were fully considered upon the original submis-

sion and decision of the case. Accordingly, the petition is

denied.

ENTERED BY ORDER

OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk pe

App. 53

APPENDIX 4

Case No: 93-2537: 93-2508

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

(Filed April 15, 1996)

ROBERT GUSTAFSON

Plaintiff-Appellee Cross-Appellant

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

BEFORE: JONES, CONTIE, AND BATCHELDER; Cir-

cuit Judges.

Upon consideration of the motion filed by the appel-

lee-cross-appellant to stay the mandate pending the filing

of a Petition for Writ of Certiorari,

It is ORDERED that the motion be, and it hereby is,

GRANTED. The mandate is stayed for sixty days from

this Order unless the Court is advised that the Petition

for Writ of Certiorari has been filed.

ENTERED BY ORDER

OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

App. 54

APPENDIX 5

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(On Appeal from the United States District Court for the

Eastern District of Michigan, Southern Division)

ROBERT GUSTAFSON,

Plaintiff-Appellee /

Cross-Appellant,

-Vs- United States Court of

Appeals, No. 93-2508

93-2537

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,

BRIEF OF AMICUS CURIAE

SEAPLANE PILOTS ASSOCIATION

IN SUPPORT OF ROBERT GUSTAFSON

PROOF OF SERVICE

ADDENDUM

PRATT & FRANK, PC.

BY: DONALD C. FRANK (P32379)

Counsel for Amicus Curiae

Seaplane Pilots Association

4151 Okemos Road

Suite 100

Okemos, Michigan 48864-3214

App. 55

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

(On Appeal from the United States District Court for the

Eastern District of Michigan, Southern Division)

PAK ata OF Te A

ROBERT GUSTAFSON,

Plaintiff-Appellee /

Cross-Appellant,

-Vs- United States Court of

Appeals, No. 93-2508

93-2537

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,

CORPORATE DISCLOSURE STATEMENT

The Seaplane Pilots Association (SPA) is an associa-

tion of aviation users, and is not a publicly traded corpo-

ration. In addition, SPA does not have any publicly

traded subsidiaries or affiliates.

SPA currently has approximately 5,500 members. SPA

is a non-profit corporation organized under the laws of

New York.

App. 56

PRATT & FRANK, P.C.

By:

DONALD C. FRANK (P32379)

Attorneys for Amicus Curiae

Seaplane Pilots Association

4151 Okemos Road, Suite 100

Okemos, Michigan 48864-3214

Dated:

RULE 29 WRITTEN CONSENT REGARDING

BRIEF OF AMICUS CURIAE

Consent to the filing of this Brief has been granted by

both parties and a copy of this agreement has been made

a part of the Addendum attached hereto, at Tab “A.”

INTERESTS OF AMICUS CURIAE

This Amicus Curiae Brief is filed on behalf of the

members of SPA. SPA is comprised of active seaplane

pilots and seaplane owners in the United States.

The sole issue raised by Defendant-Appellant City of

Lake Angelus, et al is whether the City of Lake Angelus

local ordinances governing the operation of seaplanes on

the surface of Lake Angelus are preempted by Federal

law.

As the users of seaplanes for both interstate and

intrastate commerce as well as for pleasure use, the mem-

bers of the SPA must have a uniform set of regulations

governing aircraft operations, or they will be severely

impeded in their ability to conduct their operations.

App. 57

The ruling of the United States District Court for the

Eastern District of Michigan is in line with an abundant

list of federal court decisions upholding federal preemp-

tion of the Federal Aviation Regulations (FAR) over local

ordinances. In the event that the Court’s ruling with

regard to federal preemption were to be overturned, the

members of SPA, and all other operators of seaplanes

would find it virtually impossible to operate without the

threat of arbitrary, surprise local arrest and criminal pros-

ecution.

Therefore, SPA, as well as all other pilots and opera-

tors of seaplanes, have the greatest and most compelling

interest in this matter.

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT .......... i

RULE 29 WRITTEN CONSENT REGARDING BRIEF

et PEE MMEIEIED, at OY wb be cp aw cee wkbacesns ii

INTERESTS OF AMICUS CURIAE............-.0000. ii

SURES Se POMP ER PAPE RED screed ever sssavccceessss v

ee Ee ee 1

EE OU das) chav vseuévucesweass: 2

PE i bein Vd ws be ou kas Chey oe vedo deere es 3

I. ABSENT A UNIFORM SET OF REGULATIONS

GOVERNING AVIATION AND AIRCRAFT

OPERATIONS, IT WOULD BE VIRTUALLY

IMPOSSIBLE TO OPERATE AIRCRAFT IN THE

NATIONAL AVIATION SYSTEM, AND THIS IS

ESPECIALLY TRUE WITH REGARD TO THE

OPERATION OF SEAPLANES ........20-scce0-- 3

App. 58

A. THE FEDERAL AVIATION ADMINISTRA-

TION (FA“} THROUGH IT’S [sic] REGULA-

TIONS KAS ESTABLISHED COMPLETE

AND PERVASIVE CONTROL OF ALL AVIA-

TION SEAPLANE ACTIVITIES............. 5

B. ALL AIRCRAFT AND SEAPLANE PILOTS

AND OPERATORS REQUIRE A UNIFORM

SET OF REGULATIONS GOVERNING AVIA-

Beery ery he Tarp aa ere et 7

C. THERE IS NO LEGITIMATE HEALTH,

SAFETY OR WELFARE REASON FOR THE

PROHIBITION OF SEAPLANE OPERA-

TIONS AT LAKE ANGELUS............... 8

D. CONTRARY TO THE POSITION OF THE

CITY OF LAKE ANGELUS, THE MENTION

OF THE LAKE ANGELUS CRIMINAL ORDI-

NANCE IN THE AIRPORT/FACILITY

DIRECTORY EXPRESSLY IS NOT A STATE-

MENT BY THE FAA THAT THE ORDI-

PROUT TE, WINES Soe iscsi es fie 10

E. THE RULING OF THE DISTRICT COURT

WHICH PREEMPTS THE LOCAL ORDI-

NANCES, DOES NOT IN ANY WAY SUB-

JECT LAKE ANGELUS TO UNREGULATED

tl a Peery ere Pen pe ee coe ee eae 11

THE RULING OF DISTRICT JUDGE PAUL V.

GADOLA IS SIMPLY ONE MORE IN A

LONG LINE OF OPINIONS REAFFIRMING

THAT FEDERAL LAW PREEMPTS LOCAL

AVIATION OPERATIONAL ORDINANCES,

AND SIMPLY RETAINS THE STATUS QUO 14

CG MRNGN fp hada oor oi Pe Oe ee 15

ADDENDUM

es)

& ¥

App. 59

INDEX OF AUTHORITIES

CASES PAGE(S)

Alleghany Airlines v. Village of Cederhurst, 238 F.2d

812 (2nd Cir. 1956)

American Airlines v. City of Audubon Park, 297 F. Supp.

207 (W.D. Ky. 1968), aff’d 407 F.2d 1306 (16th [sic]

Cir. 1969), cert den 396 U.S. 845 Gi, sere oS. 4

American Airlines v. Town of Hempstead, 398 F.2d

369 (2nd Cir. 1968), cert. den. 393 U.S. 1017

i ae Pere rr tie ee POET Pe eee 4

British Airways Board v. Port Authority of New York

and New Jersey, 564 F.2d 1002 (2nd Cir. 1977)....... 4

City of Burbank v. Lockheed Air Terminal, 411 U.S.

i bg PETER AE eee 4,5, 7, 8, 14, 15

Collins v. Gerhardt, 237 Mich. 38, 211 N.W. 115

SEES INCI Ree ie ma ada 4, 13

Command Helicopters, Inc. v. City of Chicago, 691 F.

Supp. 1148 (N.D. Ill. 1988)....................... 7, 8

Hess v. Township of West Bloomfield, 439 Mich. 550;

Sehgal g | Ee nO ene 9

Square Lake Condominium v. Bloomfield Township,

437 Mich. 310; 471 NW2d 321 cng ETE pe en 9

United States v. City of Blue Ash, 487 F. Supp. 135

(S.D. Ohio 1978), aff’d 621 F.2d 227 (6th Cir.

Lossip og aE BEE CRE I ae ae Ee ial na 4

STATUTES AND COURT RULES

14 C.ER. 23 & 25 et CANA + CHES kw d wa pwrets'éuce cet 6

Se go bis: 6

gee ee Ee err ere res Per yes Pre ore 6

ae: eg ES OT Tr eee rrr erry errr Te 6

BG See Pathe cei wade tbavetansaeedadegecdeleusene i 7

26 RFs PRE os sivh. den vee bawahtbcoeeeeee ieee 5

Pomoral Aviation Act OF T0068... 60 sic seeds ee ccaerverss 5

STATEMENT OF ISSUES

The sole issue addressed by the SPA is whether the

City of Lake Angelus local ordinances governing the

operation of seaplanes on the surface of Lake Angelus are

preempted by Federal law. The judgment of the United

States District Court for the Eastern District of Michigan

holds that the City of Lake Angelus ordinances governing

the operation of seaplanes on the surface of Lake Angelus

are preempted by Federal law. This Brief is filed in sup-

port of Plaintiff Robert Gustafson and in support of the

federal District Court’s ruling that federal preemption

does invalidate the City’s local ordinances, which attempt

to govern and prohibit the operation of seaplanes on the

surface of the lake. This Brief is also intended to demon-

strate the importance and the necessity of such a ruling

from the standpei it of the users and operators of water

based aircrait within the Natic. ii Aviation System.

WHEREFORE, SPA respectfully requests that the

United States Court of Appeals for the Sixth Circuit

affirm that portion of the ruling of the District Court,

which holds that those portions of ordinances 25(J) and

66(E) of the City of Lake Angelus governing the opera-

tion of seaplanes are preempted by federal law.

App. 61

STATEMENT OF FACTS

Amicus herein hereby adopts the statement of facts of

the District Court (R. 33, Memorandum Opinion an?’

Order), and the Counter-Statement of facts of the Plain

tiff-Appellee and Cross-Appellant, Robert Gustafson.

COURSE OF PROCEEDI!: GS AND DISPOSITION

IN THE DISTRICT COURT

Robert Gustafson filed this action contending that

Lake Angelus City ordinances prohibiting seaplane land-

ings are preempted by federal and/or state law and vio-

lated his due process and equa! protection rights. (R. 11,

First Amended Complaint; R. 12, Brief in Support of

Plaintiff’s First Amended Complaint). The District Court

determined the issues on cross motions for summary

judgment and plaintiff’s motions for declaratory judg-

ment and a permanent injunction. (R. 20, Defendant's

Motion for Summary Judgment; R. 24, Plaintiff’s Motion

for Summary Judgment; R. 28, Plaintiff’s Response to

Defendants’ Motion; R. 29, Defendants’ Response to

Plaintiff’s Motion; R. 30, Plaintiff’s Reply to Defendants’

Response). The Court awarded partial relief to plaintiff,

finding that the challenged ordinances are preempted by

federal law. (R. 33, Memorandum Opinion and Order; R.

32, Judgment).

App. 62

ARGUMENT

I. ABSENT A UNIFORM SET OF REGULATIONS

GOVERNING AVIATION AND AIRCRAFT OPER-

ATIONS, IT WOULD BE VIRTUALLY IMPOSSIBLE

TO OPERATE AIRCRAFT IN THE NATIONAL AVI-

ATION SYSTEM, AND THIS IS ESPECIALLY TRUE

WITH REGARD TO THE OPERATION OF SEA-

PLANES

In the Memorandum Opinion and Order granting

Plaintiff's motions in this matter, District Court Judge

Paul V. Gadola stated:

“Finally, the public interest will be served by the

injunction as preemption of these ordinances

will guarantee a uniform set of regulations gov-

erning aircraft operations.”

(R. 33, Memorandum Opinion and Order at p.. 14).

Nowhere in aviation is the need for a rational, uni-

form set of regulations more absolutely necessary than to

the operators and pilots of seaplanes and amphibious

aircraft.

The pilot of a land based aircraft, when flying over

an airport, will observe the existence of one or more

runways. In the case of a non-controlled airport, (an

airport which does not have a control tower), a pilot may

elect to land on the runway. In the event that the airport

or a runway is not active and has been closed, the Federal

Aviation Regulations (FARs) provide for the marking of

the runway with large yellow “X”s to indicate to pilots

that the runway is not available for landing.

In addition, land based runways in the United States

are generally marked on FAA aeronautical charts for the

App. 63

benefit of the pilot. However, there are virtually hun-

dreds of lakes in many states, such as Michigan, and most

aeronautical charts depict a picture of the lake, however,

the charts do not identify the lake by name. In addition,

in the State of Michigan, virtually all of the lakes which

are of sufficient size to operate seaplanes have no restric-

tions with regard to seaplane operations. The waters of

the State of Michigan so far as the water is capable of

being owned, belongs to the state, which holds it for the

common benefit of all the people. Collins v. Gerhardt, 237

Mich. 38, 211 N.W. 115 (1926). Obviously, it is not feasible

| for these lakes to have floating yellow Xs on the lakes in

i the event that some local municipality wished to prohibit

seaplane operations. In addition, it is not feasible to place

signs around the lake to advise seaplane pilots of local

Pt tele BE ps

i ihneet. Gee nae

c regulations, since these signs would not be readable by

; the seaplane pilot. Thus, the sole and only method of

: notifying operators of seaplanes is through the logical

: and central Federal Aviation Administration (FAA),

: through its rules and central publications.

The United States Department of Transportation

(DOT), through its agency, the FA [sic], has sole respon-

a sibility for the adoption of any air traffic or aviation

regulations in the United States. Neither states nor local

governments may regulate any federally preempted area.

Case law fully supports federal preemption of ordinances

affecting aircraft operations. City of Burbank v. Lockheed

Air Terminal, 411 U.S. 624 (1973); Alleghany Airlines v.

Village of Cederhurst, 238 F.2d 812 (2nd Cir. 1956); American

Airlines v. Town of Hempstead, 398 F.2d 369 (2nd Cir. 1968),

cert. den. 393 U.S. 1017 (1969); American Airlines v. City of

Audubon Park, 297 F. Supp. 207 (W.D. Ky. 1968), aff’d 407

Sein A Iria tes deiaik tye

Et Ei a RR

_ADME a A sete Piste ix

App. 64

F.2d 1306 (16th Cir. 1969), cert den 396 U.S. 845 (1969);

British Airways Board v. Port Authority of New York and New

Jersey, 564 F.2d 1002, 1010 (2nd Cir. 1977).

Common sense, of course, requires that exclusive

control of aircraft operations be concentrated at the

national level, and communities are therefore preempted

from attempting to regulate planes in flight. United States

v. City of Blue Ash, 487 F. Supp. 135 (S.D. Ohio 1978), aff’d

621 F.2d 227 (6th Cir. 1980). In addition, City of Burbank,

supra, requires that a municipal ordinance resting on

police power, which manages or dictates action by air-

craft in navigable airspace for the purpose of noise con-

trol, is invalid under the preemption doctrine.

The operation of seaplanes upon the surface of any

navigable water within the United States is governed by

Federal Aviation Regulation 14 C.F.R. 91.115. (Copy

attached in Appendix at Tab “B”). Additional regulation

for night mooring is contained in 14 C.F.R. 91.209(c).

(Copy attached in Appendix at Tab “C”). Clearly, the

federal government has established pervasive regulatory

control over aircraft, seaplanes, and their operation.

Obviously, if every local governmental body was per-

mitted to regulate, control and prohibit the flying of

national air traffic through its small piece of real estate, or

waters, it would become literally impossible for aircraft

to navigate, or to participate in interstate commerce, in

the National Air System (NAS). Each aircraft would be

required to navigate through an endless morass of quilt-

like patch work bits and pieces of prohibited air space.

Our aviation system as we know it could not exist under

Lbs TA eens Ape har a Ae ae

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28 CASES OTE SOR

App. 65

those circumstances. This is especially significant to sea-

plane operation, which is extremely critical to interstate

and intrastate commerce in many areas, such as Louisiana

and Alaska.

A. THE FEDERAL AVIATION ADMINISTRA-

TION (FAA) THROUGH IT’S [sic] REGULA-

TIONS HAS ESTABLISHED COMPLETE AND

PERVASIVE CONTROL OF ALL AVIATION

SEAPLANE ACTIVITIES

Through the enabling statutes contained in the Fed-

eral Aviation Act of 1958, the Administrator of the FAA

has promulgated comprehensive regulations and control

over virtually every aspect of aircraft and seaplane opera-

tion. An applicant for an FAA pilot certificate must first

complete an examination by an FAA appointed Aviation

Medical Examiner (AME). Prior to soloing any aircraft for

the first time, the applicant for a pilot certificate must be

examined and obtain an FAA airman medical certificate

to ensure that the airman meets the rigorous standards

required by the FAA of all pilots. 14 C.F.R. 67 et seq.

The applicant for a pilot certificate must then

undergo training, testing and the issuance of an FAA

pilot certificate prior to serving as pilot in command of

any United States registered aircraft. This includes both

written examination and practical flight testing. 14 C.F.R.

61 et seq.

In addition, the applicant for an additional seaplane

rating on their pilot certificate, must take and complete

additional mandatory training, testing and issuance by

App. 66

the FAA of a specific seaplane rating. 14 C.F.R. 61.61 et

seq.

Any manufacturer which wishes to design and man-

ufacture any aircraft, seaplane, amphibian aircraft or

component such as seaplane floats, must go through rig-

orous FAA certification, design and licensing of each

make and model of equipment. These new products may

not be licensed, sold or flown in the United States with-

out complying with these rigorous FAA standards and

testing requirements. 14 C.F.R. 23 & 25 et seq.

Each and every individual who wishes to maintain

and service an airplane, seaplane, amphibious aircraft, or

components must take required FAA training, testing

including written testing and practical hands on testing

and must obtain FAA Air-frame and Power-plant

mechanics certificates prior to maintaining or servicing

these aircraft. 14 C.F.R. 43 et seq. Finally, the FAA through

its promulgation of safety regulations dictates exactly

how a pilot shall operate an aircraft, whether land based

or water based, and all operators of aircraft and seaplanes

must do so in compliance with FAA safety regulations.

See e.g., 14 C.FR. 91.115; (R. 33, Memorandum Opinion

and Order at p. 14).

B. ALL AIRCRAFT AND SEAPLANE PILOTS

AND OPERATORS REQUIRE A UNIFORM

SET OF REGULATIONS GOVERNING AVIA-

TION

As indicated supra, the operators of seaplanes and

amphibious aircraft could not operate waterborne aircraft

in the event that every one of the tens of thousands of

ihe 2 SAS Phat het RO le AOR AT

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Sita Ah TA DOE At eh DBP RE Bees wr

App. 67

local communities could preempt Federal Aviation Regu-

lations, and arbitrarily arrest and criminally prosecute

each and every seaplane operator who was to utilize the

surface of a lake. Clearly, the FAA has an absolute and

pervasive control of all matters regulating the conduct

and operation of aviation in the United States. In addition

to the pervasive set of controls listed previously, the FAA

uniquely has the expertise regarding what parameters and

criteria are required in the physical layout of a lake to

make it safe for seaplane operations. If each local commu-

nity were permitted to substitute its own ideas of what

constitutes “safety”, there would be as many different

standards for safety as there are local communities

throughout the United States. It would then be impossi-

ble for any given seaplane operator to know and comply

with standard safety requirements, which would make

each and every pilot potentially liable for arrest and

criminal prosecution every time the pilot operates the

aircraft off a body of water. The courts have made clear

that the Federal Aviation Regulations require a delicate

balance between reasonable safety and inconvenience to

those on the surface, in order to serve the public policy of

an efficient National Air System, and that Congress has

clearly delegated the duty of safety of persons on the ground

and in the air to the FAA. Burbank, supra; Command Helicop-

ters, Inc. v. City of Chicago, 691 F. Supp. 1148 (N.D. Ill.

1988).

App. 68

C. THERE IS NO LEGITIMATE HEALTH,

SAFETY OR WELFARE REASC*i FOR THE

PROHIBITION OF SEAPLANE OPERATIONS

AT LAKE ANGELUS

The facts surrounding the instant case provide a

good example of discriminatory, arbitrary local criminal

regulation. At Lake Angelus, the local ordinances prohib-

iting seaplanes were put into effect in approximately

1972, for reasons having nothing to do with the health,

safety or welfare of the community. Discovery in this case

has shown that the ordinances were established on an

arbitrary, whimsical and capricious discriminatory nui-

sance basis, while permitting much more powerful and

noisier water ski boats, etc. to operate on the lake for

hours at a time. (R. 56, Deposition of Donald Alt

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