Reply Brief — Gustafson v. City of Lake Angelus

j Suprer - Court iy S.

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No. 95-2054 AUG 9 199%

In The joe

Supreme Court of the United States

October Term, 1995

¢

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

+

REPLY BRIEF

S

STEVEN M. Cualrt

Counsel of Record

Steven M. Cuart & Associates, P.C.

4309 Westover Court

West Bloomfield, Michigan 48323

(810) 855-8827

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

OR CALL COLLECT (a0 (402) 342-2831

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I.

Il.

III.

TABLE OF CONTENTS

REPLY TO RESPONDENT’S “STATEMENT OF

eee Pere Pee ene

A. Failure To Establish Any Rational Relation-

ship To The City’s Stated Objectives ......

B. Regulation v. Total Prohibition............

C. Respondents Have Admitted That The Ordi-

nances Are Based On Noise And Danger,

Areas Clearly Reserved To The FAA ......

PETITIONER HAS ACCURATELY STATED

Beem WWE PPMP BAW 5 oic ccc ceckocecccce.

A. Petitioner’s Statement Of Question II......

B. The Ordinance Provisions Which Prohibited

Flight At Altitudes Below 500 Feet Are Cur-

Pe SU al vat Fhe o Gd Sho oss ech

C. Petitioner Has Not Filed A New Amicus

mewst With The Petition ..................

D. FAA Position Statements .................

STATE AND LOCAL ORDINANCES WHiCH

PURPORT TO PROHIBIT AIRCRAFT OPERA-

TIONS ABOVE OR UPON OPEN WATER ARE

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

TABLE OF CONTENTS -—- Continued

Page

The District Court Below Found That Regu-

lations Enacted Pursuant To The Federal Avi-

ation Act, 49 U.S.C. App. Sections

1301-1557, And The Federal Aviation Regu-

lations (FARs) Promulgated Thereunder,

Imply That Congress Intended That This

ASOR TO FOOOIINE 686i oa Kass teaetecas

The District Court Properly Found That

LOCAL LAND USE REGULATIONS Are

NOT Involved In This Case ..............

Respondent Has Admitted That 14 C.F.R.

Part 157 Is Unrelated To The Issues In This

COO os kno dae Rocke debe cae es

The Circuit Court Concluded That The FAA

Has Sole Control Of Aircraft Operations

Once The Airport Has Been Established ...

TV. STATE AVIATION: TSBUBS ooo cece c tnt s cesww

A.

B.

Seaplane Cases Cited By Respondent ......

The State Of Michigan Has Taken The Posi-

tion That No Seaplane Prohibition Should

Exist At LORS ARRON. < 6.5 6h iene sioec en's

V. QCONGEMUGAAN cbdsi cca crecteveebesuguedesveene

IN ee I

TABLE OF AUTHORITIES

Page

Cases

Americans United for Separation of Church and State

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

Pee Me I RUD abhi 6s soo bo occ bce eos 4

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

624, 36 L. Ed. 547, 93 S. Ct. 1854 (1973)..... » Oe

City of Shreveport v. Conrad, 212 La. 737, 33 So. 2d

OIY SNS Vi vk 6665 b's vec dek's ccc wicvbnceax 9, 10

Christianson v. Hauptman, 991 F.2d 59 (2d Cir. Lk) 9

English v. Augusta Township, 204 Mich. App. 33, 514

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

TN hss oo dass on bo delebirawlibks nf. 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.

IS Calin fh 1-3 iis aa'h'a hulwis 64.04 bee ah Kokee ve 7, 8

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

Da Te Dos pi aos osu cue snaked cao cvece o 9

ERS EES ne ee eee pee 10

Price v. Charter Township of Fenton, 1995 WL

738386 (E.D. Mich. Nov. 30, 1995).................. 9

San Diego Unified Port Autherity v. Gianturco, 651

a ie ap wene 2

Square Lake Hills v. Bloomfield Township, 437 Mich.

on ek DAL ot . , ) PRR a l

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

ED NGS Sie ons Si Snidd WES waka e Coke vss 8

iv

TABLE OF AUTHORITIES - Continued

STATUTES

14 C.F.R.

14 C.F.R.

14 C.FR.

14 C.F.R.

49 U.S.C.

49 U.S.C.

49 U.S.C.

49 U.S.C.

49 U.S.C.

49 U.S.C.

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PETITIONER’S REPLY TO RESPONDENT’S

BRIEF IN OPPOSITION

I. REPLY TO RESPONDENT’S “STATEMENT OF THE

CASE”

A. Failure To Establish Any Rational Relationship To

The City’s Stated Objectives.

Respondent suggests at page 2 and page 11 that the

ordinances were “reaffirmed by resolution” in 1991, and that

the intended purpose was to protect the health, safety and

welfare of persons and property in the city. However, the 1946

ordinances permitted operation of waterborne aircraft, and the

prohibition ordinances were not enacted until the early 1970's

(Petition App. 7, at page 82). Discovery in this case has shown

that the ordinances were established on an arbitrary, whimsical

and capricious, discriminatory nuisance basis, while permit-

ting much more powerful and noisier water ski boats, etc., to

operate on the lake for hours at a time. (Petition App. 5, at 68,

69). Noise, safety and environmental concerns where never

taken into account, as testified to by the Mayor and the Chief

of Police. (Petition App. 5, at 68, 69). 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 decision of Square Lake Hills v. Bloomfield Township,

437 Mich. 310, 471 N.W.2d 321 (1991), after that case came

down utilizing the “health, safety and welfare” language. That

case has absolutely nothing to do with aviation, seaplanes, or

federal preemption.

B. Regulation v. Total Prohibition.

Further, the Square Lake case was premised upon regula-

tion of the number of boats permitted on a small lake, not the

total prohibition of any type of boats or aircraft. In this case,

the city ordinances prohibiting the operation of aircraft over

and upon the surface of the lake is exclusionary. 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 v.

2

Augusta Township, 204 Mich. App. 33, 514 N.W.2d 172 (1994)

(Docket No. 141480, decided March 7, 1994) (See Petition at

pages 25, 26).

An appropriate analysis must consider the nature of the

significant Constitutional limitations upon local power to strip

individuals and the public of their due process and equal

protection rights, and the utter failure of the City in this case to

support its conclusory allegations that the Ordinances were

reasonably related to the achievement of the City’s stated

objectives, in light of substantial evidence to the contrary.

C. Respondents Have Admitted That The Ordinances

Are Based On Aircraft Noise And Danger, Areas

Clearly Reserved To The FAA.

At Page 11 of their Brief in Opposition, Respondents state

“Aside from noise regulation, which may be preempted, the

stated public purposes are all rational and reasonable.”

(Emphasis added) This is a clear admission that this Honorable

Court has held that concerns regarding Aircraft Noise and

Safety of both persons in the air and on the ground must be

expressly reserved to the FAA, to preserve the delicate and

uniform balance between convenience, safety, and the nation’s

need for a useful national airspace and airport system. City of

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

Petition at Pages 18, 19). The City of Lake Angelus Resolu-

tion, which was concocted some 20 years after the ordinances

went into effect for purely emotional and prejudicial reasons,

attempts to justify the prohibitions based upon noise, danger

(safety), and pollution. The FAA is not required to exercise its

full power in order to occupy the field, and a local ordinance

predicated in part upon noise reduction must fail. San Diego

Unified Port Authority v. Gianturco, 651 F.2d 1306 (9th Cir.

1981). Finally, Respondent argues that the potential of Zebra

Mussel infestation is a basis for the prohibition. In The Affi-

davit of expert witness John Schwartz, dated October 18, 1993,

and made part of the record below, Mr. Schwartz states his

opinion that seaplanes are no more likely to introduce mussels

into the lake than are boats. (Reply App. 1) There are no

enforcible ordinances requiring boat owners to inspect for

ee —

3

Zebra Mussels at Lake Angelus. Further, Mayor Donald

Althoff has testified that no study had ever been conducted to

determine whether there were already Zebra Mussels in Lake

Angelus, and admitted that there may be some in the lake right

now. (Reply App. 2).

Il. PETITIONER HAS ACCURATELY STATED THE

FACTS AND LAW

A. Petitioner’s Statement Of Question II.

The Respondent has stated at page 4 that Question II as

framed in the Petition is inaccurate and argumentative. In

fact, the Petition contains an entire section which clearly

presents record facts and law in full support of the issues

presented by Question II, commencing on page 25 of the

Petition. It is certainly Petitioner’s position that the Circuit

Court below erred in its findings in this regard, and that is

without question a proper basis upon which to Petition was

Honorable Court for Certiorari.

B. The Ordinance Provisions Which Prohibited

Flight At Altitudes Below 500 Feet Are Currently

At Issue.

Respondent states at page 5 that there is no altitude issue

remaining in this case. However, as clearly set forth in the

Petition at the time that Petitioner Robert Gustafson filed this

action in the District Court below, the city ordinance con-

tained not only a prohibition against landing on the surface of

the lake, but also a clearly (and subsequently admittedly)

Federally Preempted prohibition against any aircraft fiying

within 500 feet of the surface of Lake Angelus, notwithstand-

ing the fact that the lake underlies the Airport Traffic Area

and Control Zone of the FAA Air Traffic Control Tower

located at Michigan’s second busiest airport. (Petition, page

7). The District Court, the Circuit Court, and the Respondent

have now all agreed that the 500 foot prohibition clearly is

Federally Preempted. Even the passage from the District

Court’s opinion, cited by Respondent clearly quotes the Court

4

as stating that “Defendants seem willing to give up the alti-

tude restriction, but not the landing portion.” At oral argu-

ment before the District Court, the City Attorney conceded

that there may be some problems with the City’s theory in

defense of the airspace prohibition in light of the Federal

Preemption authority cited by Petitioner Robert Gustafson,

but argued that the PROHIBITION of seaplanes on the sur-

face should still prevail.

However, the City never withdrew its brief in support of

the Airspace Prohibition or withdrew its position regarding its

validity until SUBSEQUENT to the issuance of the District

Court’s opinion and permanent injunction prohibiting the City

from enforcing the ordinances against seaplane pilots.

Instead, the City simply chose not to include in their appeal to

the Sixth Circuit Court of Appeals that portion of the District

Court’s injunction striking down the altitude Prohibition.

Therefore, in the Courts below, Petitioner Robert

Gustafson requested Attorney Fees and Costs, since his action

was the “catalyst” which caused the defendant City to make

significant changes in its past practices, therefore entitling

Petitioner to his costs even if 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 Circuit Court below appears to have misunderstood

the fact that the defendant City did not voluntarily give up the

offending altitude Prohibition until after they had lost in the

District Court on that issue. (App. 1 footnote 2). Therefore,

the altitude restriction is very much at issue in this matter, as

Petitioner has pursued his entitlement to his substantial costs

and attorney fees.

C. Petitioner Has Not Filed A New Amicus Brief

With The Petition.

Petitioner has appended no Briefs of any kind to the

Petition which were not fully before the Circuit Court of

Appeals below. Indeed, one very relevant and highly signifi-

cant document which directly contradicts the position of

5

Respondent was provided to the Circuit Court solely as an

exhibit to the Amicus Brief of the Seaplane Pilots Associa-

tion.

The City of Lake Angelus argued in the courts below and

at pages 19 and 20 of their Brief in Opposition that “the FAA

itself has recognized that landings may be prohibited by local

ordinance, since it has noted the Lake Angelus prohibition in

its official publication.” (the United States Government Flight

Information Publication, Airport/Facility Directory).

D. FAA Position Statements

In direct rebuttal to the allegations by the City regarding

the position of the Federal Aviation Administration (FAA) in

this case, the FAA submitted an affidavit specifically stating

that their inclusion of the ordinance was not intended as a

statement that the ordinance was valid or enforceable. (Pet.

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

ordinance to the pilot community was to prevent pilots from

being “blindsided” with arrest and prosecution from a sur-

prise, unknown ordinance.

This is extremely relevant information upon review by

this Honorable Court. The FAA has provided both this affi-

davit and an additional letter dated November 17, 1994, to

the Oregon Office of Legislative Counsel, expressly stating

the Agency’s position, that a state may not draft legislation

governing seaplane operations since uniform regulations gov-

erning seaplane operations throughout the United States are

codified at 14 C.F.R. Part 91, section 91.115 of which speci-

fically applies to seaplanes (Pet. at 8, 9, Pet. App. 6).

Contrary to the above Statements of the FAA, the Circuit

Court below erroneously determined that the FAA position is

completely opposite to the Statements of the FAA on the

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

Pet. App. 6, at pages 77 through 81). Petitioner renews his

suggestion that this Honorable Court Request the FAA to

Provide Its True Opinion regarding Seaplane Federal Pre-

emption.

6

Il. STATE AND LOCAL ORDINANCES WHICH PUR-

PORT TO PROHIBIT AIRCRAFT OPERATIONS

ABOVE OR UPON OPEN WATER ARE PREEMPTED

BY FEDERAL LAW.

A. The District Court Below Found That Regulations

Enacted Pursuant To The Federal Aviation Act, 49

U.S.C. App. Sections 1301-1557, And The Federal

Aviation Regulations (FARs) Promulgated There-

under, Imply That Congress Intended That This Area

Be Preempted. (Petition App. 2, At Page 43).

The District Court’s conclusion is supported by the express

language of the Act and the FARs promulgated thereunder. 49

U.S.C. App. 1508(a) provides that:

The United States of America is hereby declared to

possess and exercise complete and exclusive national

sovereignty in the air space above the United States,

including the air space above all inland waters.

(Emphasis added).

Section 40103(B)(2) of the Act delegates to the FAA the

authority to:

(D.) prevent[ing] collision between aircraft, between

aircraft and WATER VEHICLES, and between aircraft

and airborne objects. (Emphasis added)

Section 40103(b)(1) of the Act states that:

(a) The Administrator of the Federal Aviation Author-

ity shall develop plans and policy for the use of the

NAVIGABLE AIRSPACE . . . (Emphasis added)

“NAVIGABLE AIRSPACE” is defined as “airspace above the

MINIMUM ALTITUDES of flight prescribed” by FARs, and

includes the airspace needed to insure safety in take-off and

landing of aircraft. 49 U.S.C. 1301 (29). Pursuant to 49 C.F.R.

section 119, there is NO MINIMUM ALTITUDE OVER OPEN

WATER, which is a major difference and distinction in the way the

Federal Aviation Regulations treat land versus open bodies of

water. 14 C.F.R. 91.119 provides an express exception to minimum

altitudes when aircraft are operated over open water:

Minimum safe altitudes: General

Except when necessary for takeoff or landing, no person

shall operate an aircraft below the following altitudes:

7

(c) Over other than congested areas. An altitude of

500 feet above the surface, except over open water

or sparsely populated areas. Jn those cases, the air-

craft may not be operated closer than 500 feet to any

person, vessel, vehicle or structure. (Emphasis

added).

Section 91.115 specifically regulates the operation of air-

craft on the surface of the water. 14 C.FR. 91.115. (See

Petition App. 2, at page 46)

These FARs do not state that the activity is subject to local

constraint. As the District Court summarized:

The FAA provides safety regulations for take-offs,

landings, and operations on water, as well as allow-

able altitudes. The purpose of the City ordinance,

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 statutes, and thus, the ordinances are

preempted. (Petition App. 2, at page 47)

In support of its conclusion, the District Court observed that

subsequent courts have followed the Supreme Court’s guidance in

City of Burbank to find federal preemption in a variety of local

ordinances, including those which purport to restrict or prohibit use

of navigable airspace under the guise of noise abatement measures.

(Petition App. 2 at pages 44 and 45).

B. The District Court Properly Found That LOCAL

LAND USE REGULATIONS Are NOT Involved

* In This Case.

Respondent argues at pages 14 through 18 of the Brief in

Opposition that the Federal Aviation Act was not intended to

preempt local land use planning.

Respondent cites at page 17 the case of 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), for the

proposition that no federal law gives a citizer the right to

operate an airport free of local zoning control. The Circuit

Court analogized to this case.

8

However, the District Court expressly distinguished the

Faux-Burhans case from the instant case:

Defendants also cite Blue Sky and Faux-Burhans v.

County Comm’rs. . . As already noted, however, the

court in Blue Sky invalidated several local ordi-

nances because they were preempted by FAA regula-

tions. Faux-Burhans is also inapplicable because

that case involved land use regulations governing the

development of land in the construction of an air-

port. It did not involve ordinances that directly regu-

lated aircraft flight operations as this case does.

(Emphasis added).

(Petition App. 2, at page 47)

The line of cases cited by Respondent simply has no

bearing, especially in a case where the lake is_already being

used for recveational boating, waterskiing, and other similar

uses which are noisier and of longer duration than the 85

horsepower Piper Cub Seaplane at issue. See, e.g., Inland Lake

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). Compare, 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).

Under this factual scenario, there is simply no local zon-

ing plan for land use which would be affected by the occasio-

nal operation of a seaplane.

C. Respondent Has Admitted That 14 C.F.R. Part 157

Is Unrelated To The Issues In This Case.

The Circuit Court below stated:

We believe it is appropriate to find that the

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

nated 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 air-

port includes seaplane bases. 14 C.F.R. 157.2 (Peti-

tion App. 1, at page 19)

The Circuit Court believed it would be necessary for part

157 airport requirements to be complied with, and that was a

basis for its finding of no Federal Preemption.

9

Respondent correctly points out at page 19 of the Brief in

Opposition that 14 C.F.R. Part 157 HAS NO APPLICATION

TO, AND SPECIFICALLY EXEMPTS, THE VERY TYPE OF

“LANDING AREA” CREATED BY A SEAPLANE’S PRES-

ENCE. (See Petition App. 10) The practical result is a conflict

between a local ordinance and the FARs at the moment the

seaplane touches the water.

D. The Circuit Court Concluded That The FAA Has

Sole Control Of Aircraft Operations Once The

Airport Has Been Established.

The Circuit Court states:

“... Once an airport is operating, it may be that only

the FAA can regulate the resulting noise prob-

lem...” (Petition App. 1, at page 29)

The Court also cites the case of Price v. Charter Township

of Fenton, 1995 WL 738386 (E.D. Mich. Nov. 30, 1995) for

the proposition that once a landing area is operating, the FAA

preempts local ordinances. HOWEVER, THE CIRCUIT COURT

FAILS TO ADDRESS THE PREEXISTING USE OF LAKE

ANGELUS BY SEAPLANES REFLECTED IN THE RECORD.

(Petition App. 7, at Page 82).

IV. STATE AVIATION ISSUES

A. Seaplane Cases Cited By Respondent.

Respondent cites a number of cases regarding seaplane prohi-

bitions at pages 21 and 22 of the Brief in Response. The Case of

Christianson v. Hauptman, 991 F.2d 59 (2nd Cir. 1993) has no

relevance since it relates only to regulations of a Federal Agency,

The National Park Service. It has nothing to do with state or local

regulation.

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

1987) was a case which involved private property, had nothing to

do with any Federal Preemption issues, and in which a seaplane

commercial flight school was at issue, unlike the instant case.

The District Court below did not find persuasive City of

Shreveport v. Conrad, 212 La. 737, 33 So. 2d 503 (1947), nor

10

People v. Altman, 304 N.Y.S. 2d 534 (N.Y. Sup. Ct. 1969). City of

Shreveport is an early state court case in which a municipal

ordinance prohibiting seaplane landings was upheld. As the District

Court pointed out, City of Shreveport did not even address the

preemption issue, was decided before City of Burbank, and before

the Federal Aviation Act became law. Similarly, Altman was prop-

erly distinguished by the District Court on the grounds that the

local ordinance was in harmony with the federal siatute, was

decided before City of Burbank, and the court did not address the

FAA regulations at issue in this case.

Neither of the other two state court cases cited by Respondent

have anything to do with Federal Preemption issues, and are

apparently cited solely because a seaplane was factually involved.

B. The State Of Michigan Has Taken The Position That

No Seaplane Prohibition Should Exist At Lake

Angelus.

The sole objective analysis undertaken at the City of Lake

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

Administrator, Safety & Services Division of the Michigan Bureau

of Aeronautics. The City had requested that the State Bureau of

Aeronautics itself prohibit seaplane operations on Lake Angelus.

Mr. Greshel refused to prohibit seaplanes, and saw no factor which

would prevent aircraft safely taking off or landing on Lake

Angelus. He stated “/T]Jhere is no significant aviation safety or

airspace basis to exclude seaplanes from Lake Angelus.” —

App. 9, at pages 88, 89).

Vv. 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. Cuarr & Associates, P.C.

Steven M. Cuarr

App. 1

APPENDIX I

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT GUSTAFSON, Lake

Angelus Riparian Property

Owner, Case No:

ae 92 CV 73976 DT

Pletntitt, Hon. Paul V. Gadola

ao (Filed Dec. 27, 1993)

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

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. 2

SUPPLEMENTAL AFFIDAVIT OF JOHN SCHWARTZ

State of Michigan )

»)

County of Oakland )

JOHN SCHWARTZ, being first duly sworn, deposes

and states the following:

1. I work at Michigan State University as Program

Leader for the Sea Grant College Program, which is a

program that does research on the Great Lakes, and fur-

ther provides extension outreach assistance to local com-

munities.

2. That in my opinion, seaplane operators who uti-

lize the same type of inspection and cleaning procedures

on their seaplanes as are recommended for use on boats,

would not be any more likely to introduce Zebra Mussels

into Lake Angelus, than the presently permitted water-

craft.

3. That in my opinion, the operator of a seaplane

can perform the same type of preventative Zebra Mussel

inspections and cleaning as the operator of the currently

permitted watercraft on Lake Angelus, by landing their

amphibious seaplanes at an airport to perform those

inspections and cleaning prior to landing on Lake

Angelus, or by simply restricting takeoffs and landings in

non-amphibious seaplanes to Lake Angelus.

4. That in my opinion, I concur with the Michigan

Department of Natural Resources that inevitably, all

Michigan inland lakes are likely to become infested with

Zebra Mussels, although this period of time may be

decades.

App. 3

5. 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/ John Schwartz

JOHN SCHWARTZ

Subscribed and sworn to before me

this 18th day of October , 1993.

/s/ Regina S. Bush

NOTARY PUBLIC

Ingram County, Michigan

My commission expires: Jan. 27, 1996

REGINA S. BUSH

Notary Public, Clinton County, MI

Acting in Ingham County, Michigan

My Comm. Expires Jan. 27, 1996

App. 4

APPENDIX II

RECEIVED

MAY 10 1994

LEONARD GREEN, CLERK

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT GUSTAFSON, LAKE

ANGELUS RIPARIAN

PROPERTY OWNER, No. 92-CV-73976-DT

Plaintiff, (Filed Dec. 27, 1993)

vs

CITY OF LAKE ANGELUS;

DONALD ALTHOFF, Mayor OF

THE CITY OF LAKE ANGELUS;

MICHAEL STEFANI, CHIEF OF

LAKE ANGELUS POLICE

FORCE,

Defendants.

/

The Deposition of DONALD ALTHOFF taken before

Harvey A. Kahn, Court Reporter and Notary Public, in

and for the County of Oakland, State of Michigan, at

25800 Northwestern Highway, Southfield, Michigan, on

Monday, July 19, 1993, at about 10:15 a.m.

APPEARANCES:

STEVEN M. CHAIT, ESQ.

25800 Northwestern Highway

Suite 1000

Southfield, Michigan 48075

Appearing on behalf of Plaintiff

App. 5

JAMES HOWLETT, ESQ.

200 East Long lake Road

Suite 110

Bloomfield Hills, MI 48304-2361

Appearing on behalf of Defendants

REPORTED BY:

HARVEY A. KAHN

A & M Court Reporting

P. O. Box 250455

West Bloomfield, Mi 48325-0455

(313) 661-2800

* * +

[p. 24] specifically relating to zebra mussels?

A No, to the best of my knowledge, no.

Q Have any studies been done by the City of Lake

Angelus to determine whether zebra mussels exist in the

lake?

A Specific as to that exposure, no.

Q Do you have any evidence, as we sit here today,

that anyone has ever observed any zebra mussels in Lake

Angelus?

A No specific knowledge.

Q Do you have any specific knowledge as to

whether anyone has expressed an opinion whether there

are or are not zebra mussels currently in Lake Angelus?

A_ I have no knowledge of it, no.

Q So, there might be, there might not be?

A Correct.

App. 6

Q What specific procedures, if any, does Lake

Angelus utilize to prevent the introduction of zebra mus-

sels from boats?

A We communicated to the residents that if their

individual boats were taken to other lakes, that before

they were brought back on to Lake Angelus, the boats

would be closely inspected and thoroughly washed

before they were put back into Lake Angelus. [p. 25] We

have requested that lake residents limit or restrict rela-

tives and nonresidents from bringing their boats on to

Lake Angelus. It’s basically been a program of education

in requesting that the residents be very cautious in this

area.

Q So, these are in the nature of requests and not

enforceable ordinances, is that correct?

A That’s my understanding of it, yes.

Q Does the Police Department, or anyone else from

Lake Angelus, go out and inspect someone else’s boat

before they reinsert it in the lake?

A For zebra mussels?

QO Yes.

A No. i

Q Is that request restricting relatives and nonresi-

dents from bringing their boats, is that just a request, or is

that an enforceable ordinance?

A I wouldn’t want to give a legal opinion on it.

There is some wording in an ordinance, but I can’t speak

to the specific wording of the ordinance.

Te a eee

App. 7

Q If a resident does have a relative that comes over

with a boat and the resident launches it from that resi-

dent’s property, is there anything currently that would be

done by the City to stop that practice, or

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