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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1522%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 823

## Text

; 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

A.

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 og TEN EE pet met,

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:

(c) Over other than congested areas. An alti-
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.

Ratios bad ACO adn

So NS 2 eae set oe ee eae

ap ee eee Te ¥

er en ee eee

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.

4
7
i
j
3
:
4
3
4

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

V.

CITY OF LAKE ANGELUS; DONALD ALTHOFF, Mayor
of the City of Lake Angelus; MICHAEL STEFANI, Chief
of Lake Angelus Police Force

Defendants - Appellants Cross-Appellees

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)

:
f
*
¥
5.
&
& ¥
§
4
i
a
a
é

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.

4
4
2
A
A

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

Est eae 2h Sy ak cos SRA aE OG

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

ee eee at Crh 95 68

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 Althoff; R.
55, Deposition of Michael Stefani; R. 24, Plaintiff’s Motion
for Summary Judgment, Exhibit “D”) Even 65 horse
power, extremely quiet seaplanes such as the Piper J-3
Cub were prohibited. Obviously, there was no logical
noise related prohibition of the seaplanes, since the com-
munity did and still does permit much noisier uses on the
lake.

Safety can play no part in the community’s prohibi-
tion of seaplanes, since both the Mayor and the Chief of
Police at their depositions testified that no studies had
ever been conducted by the City of Lake Angelus regard-
ing seaplane safety, statistics, safety as between boats and
seaplanes, etc. (R. 56, Deposition of Donald Althoff; R. 55,
Deposition of Michael Stefani). Also, noise and safety
concerns have clearly been reserved to the FAA as to
aircraft and people on the ground. Burbank, supra; Com-
mand Helicopters, Inc., supra.

ESE Me 2) Wianaia ae tS

Pe

App. 69

Obviously, environmental concerns played no part,
since the Mayor and the Chief of Police of Lake Angelus
both testified that there are absolutely no mandatory
procedures in place to prevent the introduction of zebra
mussels into the lake from boats which are regularly
launched on Lake Angelus (or even on the feathers of
ducks or geese). In addition, the Mayor and Chief of
Police also testified that no testing has ever been done to
determine whether, in fact, there are already zebra mussels
residing in Lake Angelus. (R. 56, Deposition of Donald
Althoff; R. 55, Deposition of Michael Stefani). The Michi-
gan DNK has determined that zebra mussels are likely to
ultimately spread to all Michigan inland lakes. (R. 52,
Supplemental Affidavit of Expert John Schwartz). Finally,
zebra mussels have only been known in the Great Lakes
in the last several years, and back in 1972 when the
seaplane prohibition was enacted, the community could
not have had those concerns. Indeed, the city only passed
its resolution stating that “health, safety and welfare of
its citizens” was a factor in the seaplane prohibition
subsequent to the decisions of Square Lake Condominium v.
Bloomfield Township, 437 Mich. 310; 471 NW2d 321 (1991)
and Hess v. Township of West Bloomfield, 439 Mich. 550; 486
NW2d 628 (1992) after those cases came down utilizing
the “health, safety and welfare” language (and these
cases have nothing to do with aviation, seaplanes or
federal preemption).

In addition, the unenforceable nature of these local
ordinances can be seen in the Lake Angelus factual sce-
nario as well. Until the United States District Court
entered its judgment permanently enjoining Lake
Angelus from enforcing those portions of the City of Lake

App. 70

Angelus ordinances governing the operation of sea-
planes, not even the Chief of Police of the City of Lake
Angelus was aware that these ordinances prohibited the
operation of aircraft at or below 500 feet above Lake
Angelus, notwithstanding the fact that this air space is
contained within the Airport Traffic Area and Control
Zone of the FAA air traffic control tower located at Oak-
land Pontiac Airport, less than five miles from Lake
Angelus. (R. 55, Deposition of Michael Stefani). This is a
criminal ordinance which is punishable by 30 days in jail
for each occurrence, and not even the Chief of Police had
ever heard of this ordinance, let alone pilots operating
aircraft either on and off of the many lakes in the area, or
aircraft approaching or departing the Oakland Pontiac
Airport.

The sole and only investigation which the City of Lake
Angelus conducted in this matter, was to contact the
Michigan Bureau of Aeronautics, and requested that the
Bureau of Aeronautics issue its own regulation prohibit-
ing the operation of seaplanes at Lake Angelus. After
making a thorough inspection of the lake, the Michigan
Bureau of Aeronautics wrote to the City stating that there
are no safety or airspace reasons to prohibit seaplane opera-
tions on Lake Angelus. (R. 24. Plaintiff's Motion to Rule
56 Summary Judgment, Exhibit “D”).

App. 71

D. CONTRARY TO THE POSITION OF THE
CITY OF LAKE ANGELUS, THE MENTION
OF THE LAKE ANGELUS CRIMINAL ORDI-
NANCE IN THE AIRPORT/FACILITY DIREC-
TORY EXPRESSLY IS NOT A STATEMENT BY
THE FAA THAT THE ORDINANCES ARE
VALID

The City of Lake Angelus has pointed to the fact that
the FAA Airport/Facility Directory contains language in the
Airport Remarks section for Oakland Pontiac Airport
Stating the following: “Seaplane LDGS ard take offs on
Lake Angelus 4.5 miles ENE is prohibited by local ordi-
nance.” The City’s implication that this inclusion means
that the FAA concurs that the ordinance is valid has been
expressly denied by the FAA. (Declaration of Brenda
Hawkins, FAA Office of Air Traffic System Management,
Addendum at Tab “D”). The FAA simply does not wish
for its airmen to be blind-sided, arrested and charged
with criminal prosecution where it knows that such
threats have been made.

What counsel for the City of Lake Angelus does not
understand is that the Airport/Facility Directory is a non-
mandatory reference which is utilized primarily by pilots
of aircraft which are traveling cross country on instru-
ment flight plans. This directory is one of a number of
publications which contains the radio frequencies, types
of instrument approaches, and other electronic aids
which are available at a large terminal airport.

Most seaplanes are not operated under instrument
flight rules for travel to airport terminals. Rather, the
majority of seaplanes have very few navigation radios,
since aviation electronics are very expensive, sensitive,

App. 72

and are susceptible to damage if exposed to a lot of water.
In addition, there are no instrument landing system
approaches to lakes, and therefore seaplane operations
are generally limited to sunny days when the weather is
clear.

Finally, a seaplane pilot flying to Lake Angelus is
unlikely to be interested in landing at Oakland Pontiac
Airport, and would have no reason to be consulting the
optional Airport/Facility Director; to determine the var-
ious instrument approaches and services at the Oakland
Pontiac Airport. Therefore, most seaplane pilots would
still have no notice of Lake Angelus’ local ordinances, or
the ordinances of any other local municipality.

E. THE RULING OF THE DISTRICT COURT
WHICH PREEMPTS THE LOCAL ORDI-
NANCES, DOES NOT IN ANY WAY SUBJECT
LAKE ANGELUS TO UNREGULATED ACTIV-
ITY

It is important for the Court to understand that a
seaplane pilot approaching a lake must comply with FAA
safety regulations which require a very cautious survey of
the entire lake to determine matters such as wind direc-
tion, number of boats and other traffic at the lake. The
regulations require the pilot to give the right-of-way to
other aircraft and vessels and to land on the surface of
the water only when it is clearly safe to do so.

A pilot viewing the lake from the air has a unique perspec-
tive from which to observe any congestion, boaters or
swimmers on the lake, and to determine whether a safe
landing can be effected. In the case of Lake Angelus,
there is no public launching, and even on the busiest

5
2
bs
aay
ahs
x
ve
CI
ie
2
te.

App. 73

days, there is comparatively light boat traffic. In addition,
on this particular lake boaters have established a left
hand pattern around the lake to avoid conflicts. (R. 24,
Plaintiff’s Motion for Summary Judgment, Exhibit “— )

Lake Angelus is an extremely large lake, and offers
far more space than many other Michigan lakes which
safely handle seaplane operations. The duration of noise
emitted by a seaplane taking off is much shorter than that
emitted by a boat limited to the surface of the water, and
in fact, many seaplanes are quieter than the boats cur-
rently operating upon Lake Angelus’ waters. Safety is
less of a concern with seaplanes than with boats, since no
special FAA training or ratings are required before opera-
tion of boats. In addition, many boat operators consume
beer or other alcoholic beverages while operating their
boats, which is strictly prohibited by FAA safety regulations
for seaplane pilots.

Lake Angelus is such a large lake, and configured
such that it is ideal for the operation of seaplanes. The
lake is configured such that the east-west portion of the
lake is approximately one and one-half miles long, and
most seaplanes can be off the water in less than 500 feet
on take off. In addition, the lake has clear zones on either
end of the lake which permits an approach and departure
lane that will ensure that no seaplane ever has to fly over
any resident’s home on the lake shore. In addition, due to
the length of the lake, an aircraft can climb in such a
manner that by the time the aircraft comes over the far
shoreline on the departure end of the lake, aircraft will be
well above the 500 foot limit even conte: lated by the
now preempted ordinances. These factors are clearly a basis
for the determination of the Michigan Bureau of Aeronautics

App. 74

that the Lake is appropriate for seaplane operation. (R. 24,
Plaintiff’s Motion for Summary Judgment, Exhibit “D”).

Indeed, virtually every other appropriate size lake in
the State of Michigan have [sic] no seaplane prohibitions,
which is a strong indicator that these types of uses are
not, in fact, either public nuisances nor a threat to the
reasonable health, safety and welfare of the community.
In addition, the City of Lake Angelus has stated without
any sort of research, backup or proof that the operation of
seaplanes could hurt property resale values. Some of the
most prestigious lakes in the southeastern Michigan area,
such as Orchard Lake and Pine Lake routinely experience
seaplane operations, and each of these lakes is dotted
with million dollar homes.

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, supra. 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.

A seaplane in the water has no more environmental
effect than would two canoes setting in the same water. A
seaplane does not have an oily engine or propellers in the
water as do boats. (R. 53, Affidavit of Vincent Scarpuzza).

Finally, the City of Lake Angelus is located only 4.5
statute miles from the Oakland Pontiac Airport, which is
regularly the second busiest airport in the State of Michi-
gan. As a result, the residents of the City of Lake Angelus
chose to build their homes in an area where low flying
aircraft either departing or arriving at Oakland Pontiac

App. 75

Airport regularly fly low over their homes. Although the
number of seaplanes in southeastern Michigan is very
small, and the City of Lake Angelus will probably never
see more than one seaplane at a time, the imagined
increase in danger of an airplane accident within the City
of Lake Angelus due to seaplane operations is illusory.

F. 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 A

There should be no misunderstanding by the Court:
the finding of federal preemption does not in any way
relieve seaplane pilots of their duty to operate pursuant
to FAA safety regulations. (R. 33, Memorandum Opinion
and Order at pp. 13-14). Indeed, if there are any valid or
legitimate problems concerning the health, safety or wel-
fare of the citizens of Lake Angelus, the City need only
request that the FAA review the problem if one exists.
Neither Plaintiff Robert Gustafson nor this Amicus would
take the position that we should go back to the “days of
the wild west” where there was no regulation of any
kind, and every person strapped a gun to their side to
enforce the law. Indeed, the ruling of the District Court with
regard to federal preemption simply retains the status quo, and
leaves in the hands of one central, federal authority the perva-
sive, extensive and complete control of aviation regulation and
operation in the United States. There are numerous and
compelling reasons which have been enumerated by the
courts as to why our national, interstate aviation system
could not function unless the control of the National Air

App. 76

System was placed in the hands of the federal govern-
ment. Burbank, supra; Command Helicopters, supra.

CONCLUSION

The current system provides a fair and necessary bal-
ance between the need for air transportation and the needs
of the local municipalities. Burbank, supra. In the event that
local municipalities feel that they need additional regula-
tions, they are free to take the matter up with the impartial
Federal Aviation Administration. This will further ensure
fairness for all parties by keeping the impartial FAA
involved, which will avoid improper or arbitrary prohibi-
tions, such as the Lake Angelus ordinances found in this
case.

WHEREFORE, Amicus Curiae Seaplane Pilots Asso-
ciation respectfully requests that the Court of Appeals for
the Sixth Circuit affirm that portion of the ruling of the
District Court, which holds that the City of Lake Angelus’
ordinances governing the operation of seaplanes on the
surface of Lake Angelus are preempted by federal law.

Respectfully Submitted,
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:

App. 77

APPENDIX 6

[LOGO]
U.S. Department
of Transportation

Federal Aviation
Administration

Flight Standards District Office
1800 NE 25th Ave. Suite 15
Hillsboro, Oregon 97124
Phone: (503) 681-5500

November 17, 1994

Ms. Kathryn Silva
Office of Legislative Counsel
Salem, OR 97310

Dear Ms. Silva:

I have reviewed the proposed state legislation governing
the operation of seaplanes in Oregon State waterways. I
am concerned that you state you wish to adopt rules
governing seaplane safety in operations on state waters.
The Federal Aviation Administration (FAA) has already
adopted uniform regulations to govern the safe operation
of aircraft, including the operation of seaplanes, through-
out the United States which are codified at 14 C.F.R. Part
91. Section 91.115 of that part applies specifically to sea-
plane operations.

You can imagine the conflicts which would occur if each
state were to adopt their own different rules. The very
mobile nature of aviation makes it vitally important that
all laws governing aviation be uniform throughout the
United States. Pilots would find it difficult to utilize the
advantage of their aircraft in air commerce due to the

App. 78

bewildering number of laws they would be required to
know.

Because of this, in enacting the Federal Aviation Act of
1958, Congress provided for a single set of regulatory
standards governing the safety of aircraft operations.
Judicial decisions fully support federal preemption in this
area. See Allegheny Airlines v. Village of Cedarhurst, 238
F.2d. 812 (2nd Cir. 1956), American Airlines v. City of
Audobon Park, 297 F. Supp. 207 (W.D. Ky. 1968) aff'd 407
F.2d. 1306 (6th Cir. 1969), cert. denied, 396 U.S. 845, and
American Airlines v. Town of Hepstead, 398 F.2d. 369 (1968),
cert. denied, 393 U.S. 1017 (1969). In these cases, the courts
focused upon the comprehensive nature of the FAA’s
regulatory scheme and determined that fractionalized
and nonuniform control over aeronautical activity would
severely limit the ability of the FAA to carry out its
mandate. As noted by the U.S. Supreme Court in North-
west Airlines v. Minnesota, 322 U.S. 292 (1944), “Federal
control is intensive and exclusive. Planes do not wander
about in the sky like vagrant clouds. They move only by
Federal permission, subject to Federal inspection, in the
hands of Federally certified personnel and under an intri-
cate system of Federal commands.” Id at 303.

While I recognize that the proposed legislation does not
itself regulate seaplane operations, but merely authorizes
the promulgation of such regulations by a state agency,
the fact remains that this regulatory activity is a pre-
empted one, with jurisdiction vested exclusively in the
Federal Aviation Administration.

I appreciate the opportunity you have provided me to
comment on this proposal. I have consulted with Mr.

App. 79

George Thompson, Assistant Chief Counsel ANM-7 in
formulating this response. I look forward to working with
you on issues affecting aviation.

Sincerely,

/s/ Steven
Steven G. Albert
Principal Operations Inspector

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

(On Appeal from the United States District Court for the
Eastern District of Michigan, Southern District)

ROBERT GUSTAFSON,

Plaintiff-Appellee
Cross-Appellant,

United States Court
of Appeals, No.
93-2508, 93-2537

V.

CITY OF LAKE ANGELUS;
DONALD ALTHOFF, Mayor of
the City of Lake Angelus;
MICHAEL STEFANI, Chief of
Lake Angelus Police Force

Defendants-Appellants
Cross-Appellees

ee eee eee ewes wes

App. 80

DECLARATION OF BRENDA HAWKINS

I, Brenda Hawkins, do hereby state as follows:

1. I am the Acting Assistant Manager of Operations,
National Flight Data Center (ATM-610), under the Office
of Air Traffic System Management, Federal Aviation
Administration (FAA). I have held this position for two
months. I have been employed by the FAA for 21 years
and nine months.

2. In this position, I am responsible for developing pol-
icy on assigned programs and projects relating to aero-
nautical information services and air cartographic
matters, including the Airport Facility Directory (AFD). I
provide policy and/or technical guidance and advice to
staff, the program manager, other FAA offices, other gov-
ernment agencies, chart producers, and other persons
outside the government.

3. The National Flight Data Center, part of the Office of
the Associate Administrator for Air Traffic, is responsible
for maintaining the FAA data base and providing this
data to government and private industry producers of
aeronautical charts and publications, including the AFD.
Our primary sources of airport information are the
owner/operator of the airport and FAA/State inspectors.
This data is validated in conjunction with FAA Order
5010.4, Airport Safety Data Program. If complete and in
accordance with the Order, it is deemed reliable and
published accordingly.

App. 81

4. The language concerning the Lake Angc:us seaplane
prohibition in the Airport Remarks section of the Oak-
land-Pontiac Airport entry in the FAA’s AFD, East Cen-
tral U.S., is not intended as a statement that the ordinance
is valid or enforceable, but merely as a report to the users
of the Directory that an ordinance exists.

5. The FAA will include a local ordinance in the Direc-
tory so that pilots will know of the ordinance and not be
surprised if it is enforced. The National Flight Data Cen-
ter does not verify or question the authority of a given
local government or airport to enact such an ordinance.

6. On March 22, 1994, my office received a written
request to delete the language referring to the ordinance
from the next edition of the AFD to be published on April
28, 1994. Since it did not come from a normal source
(airport owner/operator), my office contacted the Oak-
land-Pontiac Airport Manager to confirm the request. Mr.
Karl Randall, the Airport Manager, agreed that the lan-
guage referring to the ordinance should be deleted and
promised to confirm that in writing. As a result, the April
28, 1994, edition of the AFD will not include the ordi-
nance language.

I declare under penalty of perjury that the foregoing is
true and correct to the best of my knowledge and belief.

Dated: March 22, 1994

Brenda Hawkins

rae
a

App. 82

APPENDIX 7

* af *

“There are only two places in the world I would live, and
one of them is Lake Angelus. THIS IS STILL THE
NORTHWEST CORNER OF HEAVEN!”

These words were spoken by Austin Bement, a highly
respected and long time resident of Lake Angelus. He
owned the Tan home and used to park his pontoon glider
on the point across from the mouth of the canal. He also
owned the third Beaver Boat on the lake. A light mahog-
any constructed boat with a hopped up four cylinder
Model A engine for power. He needed something fast
enough to get the glider off the water. There were also
other seaplanes that used the lake, two in particular
visited almost every Sunday during the summer months.
In fact, did you know that in 1946 the Village Council
passed Ordinance No. 12 to regulate the operation of
aircraft in the Village of Lake Angelus and to license
operators of these aircraft. Apparently, they didn’t feel
seaplanes were a nuisance or a safety hazard.

Austin Bement’s words are often used to symbolize the
peace and tranquility of the lake or to stress a point of
preserving what our founding fathers created. I believe
he spoke these words to express the freedom he felt
living in a community relatively unrestricted and “doing
what made him happy”, such as landing his glider on the
lake or racing automobiles on the ice. The following
passage printed in “A Short History of Lake Angelus,
Michigan” is an example of what could have made him
feel this way. “Local government was used to solve prob-
lems peculiar to the community. Among the problems

App. 83

was the regulation of water craft on the lake (Ordinance
No. 18) . . . The ordinance was observed probably more as a
measure of pride and courtesy than because of the legal com-
pulsion in which it was clothed. The residents saw nothing
to be proud of in flaunting their own ordinances or in
finding “angles” or evasions. If they disagreed with the
action taken by the Commission, they had the maturity and the
self-respect to face the Commission and make their objections
known. With such an attitude, it was possible to follow a policy
of not using the power of governments to arrest or harass our
own residents... . ”

Fortunately, Austin Bement is not alive today to witness
the destruction of his “Heaven”. During the past few
years, many citizens have been subjected to public humil-
iation whenever they’ve disagreed with the actions taken
by the Council. Others have been attacked behind their
backs. Questionable ordinances have been passed regu-
lating activities which possibly deny citizens their consti-
tutional right of freedom to use property, sometimes their
own, within the city. Police harassment has taken place
on our water and roads. Neighbors are slandering other
neighbors and even arrests are beirg threatened.

Pride and courtesy no longer exist for many in Lake
Angelus. People are becoming irritated with the Councils
attitude towards them and with their selective ordinance
enforcement. They’re Starting to challenge the rules and
regulations because they’re tired of being “jerked”
around. The Council has to recognize this is the Nineties
and people are not afraid to stand up for what they
believe.

App. 84

Many of us have known from the beginning that some of
our ordinances are unconstitutional and have only abided
by them out of respect for our neighbors. What respect
has the Council shown the Gustafsons? As much as I
would hate to see my tax dollars go to the lawyers, I’d
like nothing better than to see the Gustafsons win in
court. This would prove to the Council they’re not
omnipotent and hopefully they’ll realize how far our city
has come from the “CORNER OF HEAVEN” that Austin
Bement enjoyed.

Sincerely,

/s/ Mary Mrsan
Mary Mrsan

App. 85

APPENDIX 8

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. 86

AFFIDAVIT OF KYLE KIEFLING
(Filed Dec. 27, 1993)

State of Michigan )
) &
County of Oakland )

KYLE KIEFLING, being first duly sworn, deposes
and states the following:

1. That I am employed by the Federal Aviation
Administration (FAA) as the Tower Manager of the FAA
Air Traffic Control Tower located at the Oakland Pontiac
Airport, and have held that. position for fourteen (14)
years.

2. That I am familiar with Lake Angelus, which
underlies the Airport Traffic Area (ATA) and Control
Zone of the Oakland Pontiac Airport.

3. That I am aware that the City of Lake Angelus
has an ordinance prohibiting the operation of seaplanes
on the lake, which information is reported in the FAA
Facility Directory.

4. That I have never been aware, until advised by
the attorneys in this lawsuit, that the City of Lake
Angelus ordinances also prohibit the operation of any
type of aircraft in the airspace at or below 500 feet over
the City of Lake Angelus.

5. That during normal flight operations at Oakland
Pontiac Airport, aircraft operating pursuant to the Fed-
eral Aviation Regulations, may have in the past been
required for flight safety to fly through the airspace

App. 87

within the Airport Traffic Area and above the City of
Lake Angelus at or below 500 feet.

6. That several seaplanes are based on lakes such as
Oakland Lake, Pontiac Lake, and Oxbow Lake within the
Oakland Pontiac Airport Traffic Area. Air traffic person-
nel at Oakland Pontiac Air Traffic Control Tower have
coordinated seaplanes using the lakes with traffic using
Oakland Pontiac Airport.

7. I make this Affidavit on personal knowledge, and
if sworn as a witness, I can testify competently to the
facts stated herein.

Further deponent saith not.

/s/ Kyle Kiefling
KYLE KIEFLING

Subscribed and sworn to before me
this 18th day of October, 1993.

/s/ Donna A. Curiak
NOTARY PUBLIC

Oakland County, Michigan
My commission expires: 9-9-95

App. 88

APPENDIX 9
Exhibit D
STATE OF MICHIGAN
(LOGO)
JOHN ENGLER, GOVERNOR

DEPARTMENT OF TRANSPORTATION
CAPITAL CITY AIRPORT, LANSING, MICHIGAN 48906
PHONE (517) 373-1834 FAX NO. (517) 685-8388

PATRICK M. NOWAK, DIRECTOR
July 10, 1991

James L. Howlett

Beier Howlett, PC

200 East Long Lake Road, Suite 110
Bloomfield Hills, Michigan 48304-2361

Dear Mr. Howlett:

Mr. Gehman asked me to respond to your letter of June
13, 1991 concerning prohibition of seaplanes from Lake
Angelus.

I have reviewed the resolution passed by the Lake
Angelus City Council on June 10, 1991. On July 5, 1991 I
personally looked at the lake. I saw no factor which
would prevent a properly experienced and certificated
pilot in an appropriate aircraft safely taking off or land-
ing on Lake Angelus. I understand boaters have estab-
lished a left hand pattern around the island in the lake to
avoid conflicts. A locally based seaplane pilot would
have no difficulty in knowing and conforming to the local
boating rules.

App. 89

Several seaplanes are based on lakes such as Oakland
Lake, Pontiac Lake and Oxbow Lake within the Pontiac
Airport Traffic Area. Air traffic control personnel at
Pontiac Airport Control Tower told me they have no
problem coordinating seaplanes using the lakes with traf-
fic using Pontiac Airport.

My determination is there is no significant aviation safety
or airspace basis to exclude seaplanes from Angelus Lake.
I advised Mr. Gehman that the information I obtained
does not warrant action by the Aeronautics Commission
to prohibit or regulate the use of Lake Angelus by sea-
planes.

If we can provide further clarification or help in resolving
your local aviation issue, please let me know.

Sincerely,

/s/ James T. Greshel
James T. Greshel, Administrator

Safety & Services Division
BUREAU OF AERONAUTICS

App. 90

APPENDIX 10

14 CFR s 157.1
14 C.FR. s 157.1

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER I - AIRPORTS
PART 157 —- NOTICE OF CONSTRUCTION,
ALTERATION, ACTIVATION, AND
DEACTIVATION OF AIRPORTS

Titles 1-35 current through November 30,
1995; 60 FR 61644 Titles 36-50 current through
January 1, 1996; 60 FR 67518 Title 26 current
through January 1, 1996; 60 FR 67518

s 157.1 Applicability.

This part applies to persons proposing to construct,
alter, activate, or deactivate a civil or joint-use (civil/
military) airport or to alter the status or use of such an
airport. Requirements for persons to notify the Adminis-
trator concerning certain airport activities are prescribed
in this part. This part does not apply to projects involv-

ing:

(a) An airport subject to conditions of a Federal
agreement that requires an approved current airport lay-
out plan to be on file with the Federal Aviation Adminis-
tration; or

(b) An airport at which flight operations will be
conducted under visual flight rules (VFR) and which is
used or intended to be used for a period of less than 30

App. 91

consecutive days with no more than 10 operations per
day.

(c) The intermittent use of a site that is not an
established airport, which is used or intended to be used
for less than one year and at which flight operations will
be conducted only under VER. For the purposes of this
part, intermittent use of a site means:

(1) The site is used or is intended to be used for no
more than 3 days in any one week; and

(2) No more than 10 operations will be conducted in
any one day at that site.

>

Authority: Secs. 309, 313(a), 314, 72 Stat. 751; 40 U.S.C.
1350, 1354(a), 1355.

Source: 56 FR 33996, July 24, 1991, unless otherwise
noted.

14 C.F.R. s 157.1
14 CFR s 157.1
END OF DOCUMENT

App. 92

14 CFR s 157.2
14 C.F.R. s 157.2

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER I - AIRPORTS
PART 157 - NOTICE OF CONSTRUCTION,
. ALTERATION, ACTIVATION, AND

DEACTIVATION OF AIRPORTS

Titles 1-35 current through November 30,
1995; 60 FR 61644 Titles 36-50 current through
January 1, 1996; 60 FR 67518 Title 26 current
through January 1, 1996; 60 FR 67518

s 157.2 Definition of terms.
For the purpose of this part:

Airport means any airport, heliport, helistop, ver-
tiport, glideport, seaplane base, ultralight flightpark,
manned balloon launching facility, or other aircraft land-
ing or takeoff area.

Heliport means any landing or takeoff area intended
for use by helicopters or other rotary wing type aircraft
capable of vertical takeoff and landing profiles.

Private use means available for use by the owner
only or by the owner and other persons authorized by the
owner.

Private use of public lands means that the landing
and takeoff area of the proposed airport is publicly
owned and the proponent is a non-government entity,
regardless of whether that landing and takeoff area is on

Pn en a ee

App. 93

land or on water and whether the controlling entity be
local, State, or Federal Government. |

Public use means available for use by the general

public without a requirement for prior approval of the
Owner or operator.

Traffic pattern means the traffic flow that is pre-
scribed for aircraft landing or taking off from an airport,
including departure and arrival procedures utilized
within a 5-mile radius of the airport for ingress, egress,
and noise abatement.

>

Authority: Secs. 309, 313(a), 314, 72 Stat. 751; 49 U.S.C.
1350, 1354(a), 1355.

Source: 56 FR 33996, July 24, 1991, unless otherwise
noted.

14 C.F.R. s 157.2
14 CFR s 157.2
END OF DOCUMENT

App. 94

14 CFR s 157.3
14 C.F.R. s 157.3

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER I - AIRPORTS
PART 157 - NOTICE OF CONSTRUCTION,
ALTERATION, ACTIVATION, AND
DEACTIVATION OF AIRPORTS

Titles 1-35 current through November 30,
1995; 60 FR 61644 Titles 36-50 current through
January 1, 1996; 60 FR 67518 Title 26 current
through January 1, 1996; 60 FR 67518

s 157.3 Projects requiring notice.

Each person who intends to do any of the following
shall notify the Administrator in the manner prescribed
in s 157.5:

(a) Construct or otherwise establish a new airport
or activate an airport.

(b) Construct, realign, alter, or activate any runway
or other aircraft landing or takeoff area of an airport.

(c) Deactivate, discontinue using, or abandon an
airport or any landing or takeoff area of an airport for a
period of one year or more.

(d) Construct, realign, alter, activate, deactivate,
abandon, or discontinue using a taxiway associated with
a landing or takeoff area on a public-use airport.

App. 95

(e) Change the status of an airport from private use
to public use or from public use to another status.

(f) Change any traffic pattern or traffic pattern alti-
tude or direction.

(g) Change status from IFR to VFR or VFR to IFR.

>

Authority: Secs. 309, 313(a), 314, 72 Stat. 751; 49 U.S.C.
1350, 1354(a), 1355.

Source: 56 FR 33996, July 24, 1991, unless otherwise
noted.

14 C.F.R. s 157.3
14 CFR s 157.3
END OF DOCUMENT

App. 96

14 CFR s 157.3
14 C.F.R. s 157.3

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER I - AIRPORTS
PART 157 - NOTICE OF CONSTRUCTION,
ALTERATION, ACTIVATION, AND
DEACTIVATION OF AIRPORTS

Titles 1-35 current through November 30,
1995; 60 FR 61644 Titles 36-50 current through
January 1, 1996; 60 FR 67518 Title 26 current
through January 1, 1996; 60 FR 67518

s 157.5 Notice of intent.

(a) Notice shall be submitted on FAA Form 7480-1,
copies of which may be obtained from an FAA Airport
District/Field Office or Regional Office, to one of those
offices and shall be submitted at least -

(1) in the cases prescribed in paragraphs (a)
through (d) of s 157.3, 90 days in advance of the day that
work is to begin; or

(2) in the cases prescribed in paragraphs (e)
through (g) of s 157.3, 90 days in advance of the planned
implementation date.

(b) Notwithstanding paragraph (a) of this section -

(1) in an emergency involving essential public ser-
vice, public health, or public safety or when the delay
arising from the 90-day advance notice requirement
would result in an unreasonable hardship, a proponent

App. 97

may provide notice to the appropriate FAA Airport Dis-
trict/Field Office or Regional Office by telephone or other
expeditious means as soon as practicable in lieu of sub-
mitting FAA Form 7480-1. However, the proponent shall
provide full notice, through the submission of FAA Form
7480-1, when otherwise requested or required by the
FAA.

(2) notice concerning thw deactivation, discontinued
use, or abandonment of an airport, an airport landing or
takeoff area, or associated taxiway may be submitted by
letter. Prior notice is not required; except that a 30-day
prior notice is required when an established instrument
approach procedure is involved or when the affected
property is subject to any agreement with the United
States requiring that it be maintained and operated as a
public-use airport.

>

Authority: Secs. 309, 313(a), 314, 72 Stat. 751; 49 U.S.C.
1350, 1354(a), 1355.

Source: 56 FR 33996, July 24, 1991, unless otherwise
noted.

14 C.F.R. s 157.5

14 CFR s 157.5

END OF DOCUMENT

App. 98

14 CFR s 157.7
14 CFR. s 157.7

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER I - AIRPORTS
PART 157 - NOTICE OF CONSTRUCTION,
ALTERATION, ACTIVATION, AND
DEACTIVATION OF AIRPORTS

Titles 1-35 current through November 30,
1995; 60 FR 61644 Titles 36-50 current through
January 1, 1996; 60 FR 67518 Title 26 current
through January 1, 1996; 60 FR 67518

s 157.7 FAA determinations.

(a) The FAA will conduct an aeronautical study of
an airport proposal and, after consultations with inter-
ested persons, as appropriate, issue a determination to
the proponent and advise those concerned of the FAA
determination. The FAA will consider matters such as 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.
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

App. 99

determinations are only advisory. Except for an objection-
able determination, each determination will contain a
determination-void date to facilitate efficient planning of
the use of the navigable airspace. A determination does
not relieve the proponent of responsibility for compliance
with any local law, ordinance or regulation, or state or
other Federal regulation. Aeronautical studies and deter-
minations will not consider environmental or land use
compatibility impacts.

(b) An airport determination issued under this part
will be one of the following:

(1) No objection.

(2) Conditional. A conditional determination will
identify the objectionable aspects of a project or action
and specify the conditions which must be met and sus-
tained to preclude an objectionable determination.

(3) Objectionable. An objectionable determination
will specify the FAA’s reasons for issuing such a deter-
mination.

(c) Determination void date. All work or action for
which notice is required by this sub-part must be com-
pleted by the determination void date. Unless otherwise
extended, revised, or terminated, an FAA determination
becomes invalid on the day specified as the determina-
tion void date. Interested persons may, at least 15 days in
advance of the determination void date, petition the FAA
official who issued the determination to:

(1) Revise the determination based on new facts
that change the basis on which it was made; or

App. 100

(2) Extend the determination void date. Determina-
tions will be furnished to the proponent, aviation officials
of the state concerned, and, when appropriate, local polit-
ical bodies and other interested persons.

>

Authority: Secs. 309, 313(a), 314, 72 Stat. 751; 49 U.S.C.
1350, 1354(a), 1355.

Source: 56 FR 33996, July 24, 1991, unless otherwise
noted.

14 C.F.R. s 157.7
14 CFR s 157.7
END OF DOCUMENT

App. 101

14 CFR s 157.9
14 C.F.R. s 157.9

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER I - AIRPORTS
PART 157 - NOTICE OF CONSTRUCTION,
ALTERATION, ACTIVATION, AND
DEACTIVATION OF AIRPORTS

Titles 1-35 current through November 30,
1995; 60 FR 61644 Titles 36-50 current through
January 1, 1996; 60 FR 67518 Title 26 current
through January 1, 1996; 60 FR 67518

s 157.9 Notice of completion.

Within 15 days after completion of any airport project
covered by this part, the proponent of such project shall
notify the FAA Airport District Office or Regional Office by
submission of FAA Form 5010-5 or by letter. A copy of FAA
Form 5010-5 will be provided with the FAA determination.

>

Authority: Secs. 309, 313(a), 314, 72 Stat. 751; 49 U.S.C.
1350, 1354(a), 1355.

Source: 56 FR 33996, July 24, 1991, unless otherwise noted.
14 C.F.R. s 157.9

14 CFR s 157.9

END OF DOCUMENT

App. 102

APPENDIX 11

14 CFR s 91.1
14 C.F.R. s 91.1

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER F - AIR TRAFFIC AND
GENERAL OPERATING RULES
PART 91 - GENERAL OPERATING
AND FLIGHT RULES
SUBPART A - GENERAL

s 91.1 Applicability.

(a) Except as provided in paragraph (b) of this sec-
tion and s 91.703, this part prescribes rules governing the
operation of aircraft (other than moored balloons, kites,
unmanned rockets, and unmanned free balloons, which
are governed by part 101 of this chapter, and ultralight
vehicles operated in accordance with part 103 of this
chapter) within the United States, including the waters
within 3 nautical miles of the U.S. coast.

(b) Each person operating an aircraft in the airspace
overlying the waters between 3 and 12 nautical miles
from the coast of the United States shall comply with ss
91.1 through 91.21; ss 91.101 through 91.143; ss 91.151
through 91.159; ss 91.167 through 91.193; s 91.203; s
91.205; ss 91.209 through 91.217; s 91.221; ss 91.303
through 91.319; s 91.323; s 91.605; s 91.609; ss 91.703
through 91.715; and 91.903.

App. 103

PART 91 - GENERAL OPERATING AND FLIGHT RULES

Authority: 49 U.S.C. app. 1301(7), 1303, 1344, 1348,
1352 through 1355, 1401, 1421 through 1431, 1471, 1472,
1502, 1510, 1522, and 2121 through 2125; articles 12, 29,
31, and 32(a) of the Convention on International Civil
Aviation (61 stat. 1180); 42 U.S.C. 4321 et seq.; E.O. 11514,
35 FR 4247, 3 CFR, 1966-1970 Comp., p. 902; 49 U.S.C.
106(g).

Source: 56 FR 23178, May 20, 1991; 56 FR 48657, Sept.
25, 1991; 56 FR 65657, Dec. 17, 1991, unless otherwise
noted.

SUBPART A - GENERAL

Source: 54 FR 34292, Aug. 18, 1989, unless otherwise
noted.

14 C.F.R. s 91.1
14 CFR s 91.1
END OF DOCUMENT

App. 104

14 CFR s 91.119
14 C.F.R. s 91.119

CODE OF FEDERAL REGULATIONS
TITLE 14 - AERONAUTICS AND SPACE
CHAPTER I - FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT
OF TRANSPORTATION
SUBCHAPTER F —- AIR TRAFFIC AND
GENERAL OPERATING RULES
PART 91 - GENERAL OPERATING
AND FLIGHT RULES
SUBPART B - GENERAL

s 91.119 Minimum safe altitudes: General.

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

(a) Anywhere. An altitude allowing, if a power unit
fails, an emergency landing without undue hazard to
persons or property on the surface.

(b) Over congested areas. Over any congested area
of a city, town, or settlement, or over any open air assem-
bly of persons, an altitude of 1,000 feet above the highest
obstacle within a horizontal radius of 2,000 feet of the
aircraft.

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

(d) Helicopters. Helicopters may be operated at less
than the minimums prescribed in paragraph (b) or (c) of

App. 105

this section if the operators is conducted without hazard
to persons or property on the surface. In addition, each
person operating a helicopter shall comply with any
routes or altitudes specifically prescribed for helicopters
by the Administrator.

PART 91 - GENERAL OPERATING AND FLIGHT RULES

Authority: 49 U.S.C. app. 1301(7), 1303, 1344, 1348,
1352 through 1355, 1401, 1421 through 1431, 1471, 1472,
1502, 1510, 1522, and 2121 through 2125; articles 12, 29,
31, and 32(a) of the Convention on International Civil
Aviation (61 stat. 1180); 42 U.S.C. 4321 et seq.; E.O. 11514,
35 FR 4247, 3 CFR; 1966-1970 Comp., p. 902; 49 U.S.C.
106(g).

Source: 56 FR 23178, May 20, 1991; 56 FR 48657, Sept.
25, 1991; 56 FR 65657, Dec. 17, 1991, unless otherwise
noted.

SUBPART B - FLIGHT RULES

Source: 54 FR 34294, Aug. 18, 1989, unless otherwise
noted.

14 C.F.R. s 91.119
14 CFR s 91.119

END OF DOCUMENT

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1522%3A1. Public record. Not legal advice.