Petition for Writ of Certiorari — Breneman v. United States ex rel. Federal Aviation Administration
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-~ Supreme Court, U.S.
/ FILED
“No. 04-
~ Oa 727 NOV 25 2004
IN THE ued
Supreme Court of the United States
JOHN BRENEMAN and WILLIAM D. BRENEMAN,
Petitioners,
Vv.
UNITED STATES EX REL.; THE FEDERAL AVIATION
ADMINISTRATION; COMMONWEALTH OF
MASSACHUSETTS EX. REL.; MASSACHUSETTS
AERONAUTICS COMMISSION; 70 ACERS OF LAND
A/K/A/ TANNER HILLER AIRPORT,
Respondents.
On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES Court OF APPEALS
FOR THE First CIRCUIT
—_——-— Sanna ~-—
nem a
PETITION FOR A WRIT OF CERTIORARI
= enn a
WILLIAM D. BRENEMAN
Counsel of Record
PETER J. GEORGES
BRENEMAN & GEORGES
3150 Commonwealth Avenue
Alexandria, Virginia 22305
(703) 683-8006
Counsel for Petitioners
191112 ce]
COUNSEL PRESS
(800) 274-3321 * (800) 359-6859
te’
CP ee ae ome - ee
i
QUESTIONS PRESENTED
The First Circuit Court of Appeals affirmed the summary
judgment decision of the District Court concluding
petitioners quiet title and pendant constitutional and equitable
claims were barred by the principles of res judicata and
sovereign immunity due to the decision of the United States
Court of Federal Claims. A petition for a writ of certiorari
No. 04-496 from the Federal Circuit has been filed to review
the decision of the United States Court of Federal Claims.
This petition for a writ of certiorari from the First Circuit
seeks review of the court decisions that allow the public the
right of free transit across petitioners’ property and prevent
petitioners from removing illegal buried waste, erecting a
boundary fence and quieting title to their property.
Three questions are presented:
1. Does the Fifth Amendment provide protection
against Governmental action that prevents a private
landowner from removing illegal buried waste and
erecting a boundary fence in order to grant the public
the right of transit on the surface and at least three
feet below the surface of private property.
2. Did the waiver of sovereign immunity in actions to
quiet title under 28 U.S.C. § 2409a include the State
where the State claims an interest in the same
property as claimed by the United States and where
the State Constitution prohibits the taking of private
property for public use and the State voluntarily
participated in the regulatory regime established by
Congress.
i
Did Congress in dividing jurisdiction between the
Article III district courts and the Article I Federal
Court of Claims intend to impair the vitality of the
Fifth Amendment by allowing the limited
jurisdiction of the Article I court to become
res judicata over an action to quiet title under
28 U.S.C. § 2409a.
lil
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...........2cece00- i
pe ge ee ili
TABLE OF CITED AUTHORITIES ............ Vv
py Se xii
nL scare aiuues eden ieee 1
STATEMENT OF JURISDICTION ............. 1
CONSTITUTIONALAND STATUTORY
PROVISIONS INVOLVED ................. l
STATEMENT OF THE CASE ................. 2
REASONS FOR GRANTING THE PETITION ... —i0
I. Does the Fifth Amendment Provide
Protection Against Governmental Action That
Prevents A Private Landowner From
Removing Illegal Buried Waste And Erecting
a Boundary Fence in Order to Grant the Public
the Right of Transit on the Surface and at
Least Three Feet Below the Surface of Private
CT ULUse Des 6400s bk eesehenscees ll
iv
Contents
Page
II. Did The Waiver Of Sovereign Immunity
In Actions To Quiet Title Under 28 U.S.C.
§ 2409a Include The State Where The State
Claims An Interest In The Same Property As
Claimed By The United States And Where
The State Constitution Prohibits The Taking
Of Private Property For Public Use And
The State Voluntarily Participated In
The Regulatory Regime Established By
ES bseakteedecd rived es saneie yes 18
Ill. Congress in Dividing Jurisdiction Between
Article III District Courts and the Article I
Federal Court of Claims Did Not Intend to
Impair The Vitality of the Fifth Amendment
By Allowing The Limited Jurisdiction Of The
Article I Court To Become Res Judicata Over
An Action To Quiet Title Under 28 U.S.C.
PS Ri secsisevesepdvneeuserneses: 23
CMY 90 kWh ds eendsd dwetetewcessens 30
TABLE OF CITED AUTHORITIES
Page
Cases .
Angelle v. State,
Bt La. COG Cw. TOGED noo d ic ckcsectcinsdses 22
Block v. North Dakota,
S61 UB. SIR CeeE hav hepa aawkasesveniee passim
Bowen v. Massachusetts,
GOT Uh ee Cle ba vd a euwhoeencaeatiasae 25, 29
Brown v. Hotel and Restaurant Employees and
Bartenders Int’I Union Local 54,
ge ee Pe ey er rey rae 21
California v. Arizona,
WES: SOCOTOD Ki edkeavasbaeeaeeeneee 24, 25
California v. Deep Sea Research, Inc.,
— 523 US. G91 CIF9E) oon cece cece scsscsecen 21
Cameron v. United States,
sf ope Se 2). re mr eis 12
Camfield v. United States,
SUT UE: DER CUED be nacdaceiccscce cet 12, 14
Cereghino v. State,
mae Ge. Be Oe EDGED i ko ocd de anawnas apy: 22
Chicago v. International College of Surgeons,
S22 US. TIOGISGT) 2k nevsiscassebuaceee 24
vi
Cited Authorities
City of Burbank v. Lockheed Air Terminal,
411 US. GOS CISTSD acccccecdsacasecsenanes
Cromwell v. County of Sac.,
94 U.S. S50 CIGTED a vcccccacccccettecdstes
Crosby v. National Foreign Trade Council,
SIO UB. TI GISS cccaccccscdcgnecanenus
Dillard v. Austin Indep. School Dist.,
806 S.W.2d 589 (Tex. Ct. App. 1991) ........
Eastern Enterprises v Apfel,
SO4 U.S. GOS CIPS ccdccvvccccisdactauads
FCC v. Florida Power Corp.,
4B0 U.S. BES (USET) cccccccccvccscesessens
Kaiser Aetna v. United States,
444 U.S. 164(1979) ......... cece ccueecees
Kelso, et al. v. City of New London, et al.,
INO, OGEGG, ccccccncccqecccusesgucesesese
Loretto Teleprompter v. Manhattan CATV Corp.,
456 UB. GPCRS 0 ecesscccnccwencnanens
Minnesota Co. v. National Co.,
TOUS. SACHUER co i.cccscsasuss eee
vii
Cited Authorities
Minnesota v. United States,
gS Re Pree ers ere
Montana v. United States,
Se ED oc ccdacnddusbdarsenaaees
Morse v. Stocker & Others,
Se ED 8 ob 0d 06006000880084%5
Nevada vy. United States,
EE fal civ u ou os es oeneeceketenws
New Hampshire v. Maine, 532 U.S. 742 (2001) ...
Northern Pipeline Co. v. Marathon Pipe Line, Co.,
458 U.S. 50 (1982) stayed 459 U.S. 813 (1982)
Pennhurst State School & Hosp. v. Halderman (II),
ee She EEE: Colatite ues Jasbevesawenens
Pumpelly v. Greenbay and Mississippi Canal Co.,
PE UTE oc abackockseseunaebwasses
Rice Hope Plantation v. South Carolina
Pub. Serv. Authority,
Se I NNUD oc cedccdccssncnases
Schumette v. State,
147 Neb. 193 (Neb. 1946) ...... Ce ype eRe
Page
28
26
Vill
Cited Authorities
Page
State v. 0.24148, etc., Acres of Land,
53 Del. 439, 171 A.2d 228 (Del. 1961) ........ 22
United States v. Causby,
DE ED 6b b6b bid o denne bank dscns 12
United States v. City of New Haven,
496 F.2d 452 (2d Cir. 1974), cert. denied and app.
dism’d, 419 U.S. 958 (1974) ............0.45. 14
United States v. Mitchell,
ee Gh RUUD Sic kcecdesssadesvon neds 25
United States v. Pewee Coal Co.,
ee Ce A aS ei Vad enisad eicuns ess 17
Verizon Md. Inc. v. Public Serv. Comm'n of MD,
ee Ge PD 6-6 occu hionwee nike de ness 21
Weber v. Board of Harbor Comm'rs,
Se Pe EE cba cbbatbwatcuesanasedoas 20
YMCA v. United States,
Be Ss EOE 6c ccknsodseeewabe voennes 17
ix
Cited Authorities
Page
Statutes
pe Lae b>) te rr re seo passim
A, ee ee
Be SLC EE 6b ha Seeks nbs a dee dnens passim
p gE oe Os re ne eer passim
gE a PP errr re rer ee TT eT errr? passim
ee OS oe do ee a kd Peed ee passim
gee Fl Ie errr en err passim
49 U.S.C. § 40103(a)(1) and (a)(2) ............ passim
i Mop | rr er a ree re passim
Re EE nied sek Sckicreaneeiaeneas passim
TE hepa veadn eeivs descceaknanes passim
DEARL. COON DOS FSM ow overs secencrenen passim
DE ARE is CRORE FOG OG occ cece cctcacnensn passim
eo El eg A 2S ree ere arr passim
gin Se ee Ae | nr re passim
x
Cited Authorities
Page
Other Authorities
Airport Design Advisory Circular 150/53001 ..... 2, 15
61% Edition of the New York Sectional Chart ..... 6
Airport Directory of the Airman’s Information
Pe OPE rrr ey yer yp Eee ren Te +
Black's Law Dictionary, 341 (5 ed. 1979) ........ ll
Black s Law Dictionary, 893 (8 ed. 2004) ........ 12
R. Frost North of Boston, “Mending Wall” (1914)... 12
Powell on Real Property,Vol. 9 § 68.03[3] p 68-10
: Sen ieead tne eee deter aeeae ee eae 14
Constitutional Law Principles and Policies,
Chemerinsky Second Edition p. 179 (2002) .... 18
Restatement (Second) of Judgments §§ 11, 26 (1982)
OP LT TE re ee Te Te eee eer, OT ee 26
D. Sharpiro Civil Procedure: Preclusion in Civil
Aetions 25, 2B-29 (2001) occ cceanscccccines 26-27
xi
Cited Authorities
Page
Constitutional Provisions
RFs Gs PUIG W cccsncicoccnnctessasncsesegas passim
Article 10 of the Constitution of the Commonwealth
er cL veh ean wee 3 1, 22, 23
xii
TABLE OFAPPENDICES
Appendix A — Opinion Of The United States Court
Of Appeals For The First Circuit Dated August
SEE Cake ck eaten tae en ee eee
Appendix B — Memorandum Decision Of
The United States District Court For The
District Of Massachusetts Dated September 23,
BP hike eonnsal sand ek a weienecaweuens
Appendix C we Stipulation Of Dismissal Entered In
WCV 1992-2705 Entered On April 2, 2001 ....
Appendix D — Constitutional Provisions And
Seen Tee eer EP err etree
Page
la
l6a
24a
See mee = —
l
OPINIONS BELOW
The First Circuit Court of Appeals judgment is reported at
381 F.3d 33 (1* Cir. 2003) and is included as Appendix A. The
Judgment of the District Court is published at 2003 WL
22203684 (D. Mass 2003) and is reprinted as Appendix B.
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals for the First Circuit
was entered on August 25, 2004. This petition for writ of
certiorari was filed within 90 days of that date. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution
Amendment V [1791]
No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or
public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of law;
nor shall private property be taken for public use,
without just compensation.
Commonwealth of Massachusetts Constitution
Article 10 Bill of Rights
Each individual of the society has a right to be
protected by it in the enjoyment of his life, liberty
2
and property, according to standing laws. . . no part
of the property of any individual can, with justice,
be taken from him, or applied to public uses, without
his consent . .. And whenever the public exigencies
require that the property of any individual should
be appropriated to public uses, he shall receive a
reasonable compensation therefor.
The quoted portions of Article I and Article III of the U.S.
Constitution and the provisions of 49 U.S.C. § 40102(30)
“Navigable Airspace,” 49 U.S.C. §§ 40103(a)(1) and (a)(2)
Sovereignty and Public Right of Transit, 49 U.S.C. § 46301(a)
Civil Penalties, 49 U.S.C. § 46316 Criminal Penalty, 49 U.S.C.
§ 44718 Structures Interfering With Air Commerce, 28 U.S.C.
§ 2409a Real Property Quiet Title actions, 28 U.S.C. § 1346
United States as defendant, Massachusetts General Laws
Chapter 90 § 35B Approach Protection, Massachusetts General
Laws Chapter 90 § 44 are lengthy and are therefore set out in
Appendix D pursuant to Supreme Court Rule 14.1(f) along with
a citation to the Airport Design Advisory Circular 150/5300.
STATEMENT OF THE CASE
Petitioners stand to lose a portion of their private property
to the United States as navigable airspace through which the
public has a right of transit. The loss of the right to exclude the
public from the petitioners’ property includes a boundary fence
and land not in dispute between the public use airport and the
petitioners.
Petitioners John Breneman and William D. Breneman assert
this portion of the surface and at least three feet below the surface
of their private real estate has been taken for public use without
just compensation in violation of the Fifth Amendment.
Alternatively, petitioners claim a portion of their private real
estate has been taken by the United States and transferred to an
nei can ue Oe
3
adjacent public use airport for public use by an act of spoliation
in violation of the Fifth Amendment. Spoliation is the use of
Governmental power to transfer private property from one
private owner to another for the benefit of the public.
The Act of taking or spoliation occurred on January 5, 2001
when the United States issued two Determinations of Hazard
pursuant to 49 U.S.C. § 44718. These Determinations of Hazard
by the United States are backed by civil and criminal penalties.
These civil and criminal penalties have prevented the petitioners
from returning their land to its original condition and from
removing an estimated 25,000 cubic yards of illegal buried waste
on about 5 acres of land and replacing a hill and a boundary
fence at the end of their property. The hill and fence were illegally
removed and waste buried at the end of petitioners’ property by
the owners of the adjacent airport without petitioners’ knowledge
or permission.
The act of taking or spoliation by the United States on
January 5, 2001 imposed a navigational servitude on portions
of the surface, above the surface and at least three feet below
the surface of petitioners’ property as “navigable airspace.”
This “navigable airspace” claimed by the United States for public
use allows the free transit of citizens on the surface, above the
surface and at least three feet below the surface of petitioners’
property under 49 U.S.C. § 40103(a)(2). The Commonwealth
of Massachusetts provided its official imprimatur to the
determinations of hazard with Massachusetts civil and criminal
penalties to deny the replacement of the hill needed to shield
the fence.
This is not a case that concerns a subjacent landowner
attempting to extend property rights into “navigable airspace”
by erecting a building or a previously non existing structure.
Rather this case presents a vital constitutional question this Court
has never before addressed: whether the United States can extend
*?
4
its navigable airspace onto and at least three feet below the
surface of a landowner’s property for a public purpose and
thereby prevent a landowner from returning land to its original
condition while denying compensation. Alternatively, can the
United States classify a portion of the surface and at least three
feet below the surface of private property as, “navigable
airspace” and transfer it to a public use airport for the benefit of
the public without compensation.
Petitioners’ property existed for at least 40 years with the
hill that shielded a boundary fence between the petitioners’
property and the Tanner Hiller Airport. The shielding hill and
boundary fence limited the use of the Tanner Hiller Airport to
small aircraft and gliders and prevented the acquisition, use and
taking of “navigable airspace” on the surface, above the surface
as well as below the surface of petitioners’ property irrespective
of the length of the single runway at the airport. It further limited
the public use of the airport to small aircraft and gliders.
The extension of the runway and the taking of new “navigable
airspace” paved the way for the introduction of larger, noisier
and heavier aircraft.
The Tanner Hiller Airport is a public use airport listed in
the Airport Directory of the current Airman’s Information
Manual. A public use airport is open to the public and consistent
with uniform national standards has its flight path (“airspace
needed to ensure safety in takeoff and landing of aircraft’’)
comprehensively regulated as “navigable airspace” under
49 U.S.C. § 40102(30). See also 14 C.F.R. § 77.1-77.75.
Petitioners’ property is not on airport property, is not an
airport and has never been listed as an airport in the Airport
Directory of the Airman’s Information Manual. Petitioners’
property has been in their family since about October, 1933
long before the creation of the Tanner Hiller Airport and the
1958 Federal Aviation Act that redefined “navigable airspace”
IN ge pe ete ae
5
as the airspace above the minimum altitudes of flight prescribed
by regulation . . . “including the airspace needed to ensure the
safety in the takeoff and landing of aircraft.” 49 U.S.C.
§ 40102(30).
At some unknown date prior to August, 1991' the Tanner
Hiller Airport illegally altered the existing flight path by
removing the shielding hill and boundary fence on petitioners’
property and extending the runway, without notice to
petitioners’, the FAA or the Commonwealth of Massachusetts
Aeronautics Commission (MAC) in violation of the mandatory
notice requirements of 14 C.F.R. § 77.13(5)(i). Large quantities
of gravel were removed and sold and petitioners’ property was
excavated from about 4 feet to 20 feet below the elevation of
the runway.’ An estimated 25,000 cubic yards of illegal solid
waste was then buried under petitioners’ property and at least 5
acres of petitioners’ property were destroyed and destabilized.
In the process the federally mandated Runway Primary Surface,
Runway Object Free area, Runway Protection Zone and Runway
Approach Surfaces were extended onto petitioners’ property.
The Commonwealth mandated runway approach surfaces are
different from and conflict with the federally mandated standards
leaving petitioners subject to different state and federal standards
both having separate civil and criminal penalties.
1. An issue of fact was presented in WCV 92-2705 as to the exact
date the boundary fence, gravel, trees and hill were removed from
petitioners’ property and the runway was extended. The case in WCV
92-2705 was for trespass and conversion and not for taking of navigable
airspace, as an airport has no power of eminent domain. The exact date
of the removal of the boundary fence, gravel, trees and hill remains an
issue of fact in the Commonwealth of Massachusetts Appeals Court
No. A.C.-2003-P-234 sub judice.
2. On land that previously was in all places 4 to 80 feet higher
than the elevation of the runway.
6
About August, 1991 petitioners discovered the damage to
their property. Action was instituted in WCV 92-2705 for
trespass and conversion. In December, 1997 petitioners
discovered and reported a discrepancy in runway length to the
FAA. In April, 1998, the FAA received a copy of a letter from
the Massachusetts Aeronautics Commission (MAC) advising
the Airport Master Record did not correctly note the proper
runway length.
For two more years, periodic runway inspections were made
and all official publications continued to report the same original
runway length and neither the United States nor MAC made an
attempt to assert a claim to “navigable airspace” on the surface
or below the surface of petitioners’ property. Petitioners’ relied
upon the official publications of the FAA and attributed the fact
the original runway length remained the same for more than 2
more years was due to the fact the runway had been illegally
extended in violation of the mandatory notice requirements of
14 C.F.R. § 77.13. Petitioners remained confident the United
States and MAC would allow petitioners’ to return their property
to its original condition when the private action between the
petitioners, the Tanner Hiller Airport and Amorello Construction
Company was completed in WCV 1992-2705. Petitioners relied
upon the inaction of MAC and the United States.
On or about May 18, 2000, after obtaining a copy of the
61% Edition of the New York Sectional Chart, petitioners’ first
noticed the United States intended to take their property for the
benefit of the public. On June 14, 2000 petitioners filed
mandatory notices of proposed construction and sent copies to
MAC seeking to return their land to its “original condition” by
removing buried waste, replacing the hill at the end of their
property and erecting a boundary fence and prevent the taking
of their property by the United States as “navigable airspace.”
A Fon tba
7
On September 21, 2000 MAC advised the proposed 10 foot
replacement fence was not in an airport approach area as defined
by MGL Chapter 90, Section 35B and therefore was not subject
to a permit from MAC. The proposed fence was not located in
an airport landing area as defined by a different Massachusetts
regulatory standard and therefore did not-place the public use
airport in non-compliance with MAC regulations. The proposed
hill was determined to be within an airport approach area and
therefore was subject to a permit from MAC under standards
different from the federal standards.
Thereafter, in an act of taking or spoliation, the United States
without notice or a hearing and upon prompting from the Tanner
Hiller Airport, issued a Determination of Hazard in Aeronautical
Study No. 00-ANE-0439-OE on January 5, 2001, that
petitioners’ replacement hill would constitute a hazard to air
navigation. The United States, also without notice or a hearing
and upon prompting from the Tanner Hiller Airport, issued a
Determination of Hazard in Aeronautical Study No. 00-ANE-
0438-OE on January 5, 2001° that petitioners’ placement of a
10-foot boundary fence on their property to separate it from the
Tanner Hiller Airport would constitute a 13-foot hazard‘ to air
navigation because it was on the Runway Primary Surface of
the illegally extended runway.
3. After previously advising the FAA petitioners did not own the
property, the Tanner Hiller Airport dropped its claim of adverse
possession one month after the FAA issued its determinations of hazard.
See Stipulation of Dismissal cover letter and docket entry 24a.
4. The 13-foot hazard to air navigation was arrived at by taking
the 10- foot high fence and adding a 3-foot below-the-ground penetration
to yield a 13-foot hazard to air navigation, thereby deciding “navigable
airspace” extends not only on the surface but also at least 3-feet below
the surface of petitioners’ property.
8
Petitioners have sought to have their land returned to them
in order to remove the illegal buried waste and return their land
to its original condition. Their efforts have been impeded by
jurisdictional issues of competing state and federal regulatory
standards’ and arguments of res judicata based on cases and
decisions of courts lacking jurisdiction or not accepting
jurisdiction to decide issues involving “navigable airspace.”
Due to jurisdictional limitations mandated by Congress on
Article I and Article If] courts petitioners were required to divide
their cause of action under the Fifth Amendment to conform to
the jurisdictional limitations of the District Court and the Court
of Federal Claims. These jurisdictional limitations were
specified in the complaints filed the same day, December 13,
2002, in the United States District Court for the District of
Massachusetts and the United States Court of Federal Claims.
Petitioners’ in the District Court sought to quiet title to their
property and equitable relief under 28 U.S.C. § 2409a Quiet
Title Act, since quieting title required the presence of the
Commonwealth of Massachusetts and the Tanner Hiller Airport
as necessary parties along with the United States. Only the
United States District Court for the District of Massachusetts
had original and exclusive subject matter jurisdiction of Quiet
Title actions 28 U.S.C. § 1346(f) and personal jurisdiction over
the Tanner Hiller Airport, the Commonwealth of Massachusetts
and the United States either or all of which claimed or maintained
an interest in petitioners’ property. Moreover, only the District
Court had jurisdiction of the claim for relief under 42 U.S.C.
§ 1983 and provided a right to a jury trial, which was requested,
to apportion liability among the parties for their interference
with petitioners’ property rights.
5. These State and federal regulatory schemes both include different
civil and criminal penalties for attempting to take back private property
that has been identified as “navigable airspace.”
9
The United States Court of Federal Claims lacked
jurisdiction over all adverse claimants, lacked jurisdiction over
Quiet Title actions under 28 U.S.C. § 2409a and lacked
jurisdiction in rem and equitable remedies inherent in resolving
the issues in the Complaint. The United States District Court
for the District of Massachusetts does not have jurisdiction over
the inverse condemnation action if the value of the property
taken by the United States exceeded $10,000.00. Petitioners
were forced to divide their action under the Fifth Amendment
to conform to the jurisdictional limitations imposed by Congress
in the Tucker Act and Quiet Title Act, imposed by Congress in
the waivers of sovereign immunity.
As a result of the above-described conflict, the United States
Court of Federal Claims decided it had jurisdiction over the
part of the claim pleaded in the Federal Claims Complaint but
improperly granted summary judgment to the United States as
pointed out in the petition for writ of certiorari in No. 04-496.
The First Circuit and the District Court erroneously concluded
the decision of the United States Court of Federal Claims
decision was res judicata for the different claim pleaded in the
District Court. The division of an action as mandated by
Congress due to the jurisdictional limitations of each of the
courts cannot as a matter of law be res judicata for the claims in
United States District Court since it alone had original exclusive
jurisdiction to quiet title under 28-U.S.C. § 2409a and to provide
the relief requested in that Complaint.
Despite all actions taken by petitioners to quiet title, issues
of title, ownership and control of their property remain
unanswered and uncertain. The District Court stated that
petitioners “do not have actual possession of the land in
controversy — the Airport does.” 22a. Notwithstanding this
unsupported statement the Airport in the stipulation filed in State
10
court stated that it did not have adverse possession of petitioners’
property. 24a. Ifthe Airport has actual possession of petitioners’
property it is the result of Governmental action involving an
unconstitutional act of taking or spoliation. Petitioners are
entitled to know from the District Court who owns their property
as well as its boundaries as the District Court is the only court
with jurisdiction over this issue under 28 U.S.C. § 2409a when
an action of the United States results in a disputed title to real
property.
REASONS FOR GRANTING THE PETITION
Three compelling reasons exist for granting the petition
for certiorari in this case.
First, conflict exists among the circuits on the same facts
of this case as to the legal effect of the Determinations of Hazard.
The D.C. Circuit has held the Determinations of Hazard have
“no enforceable legal effect’ while the Federal Circuit and First
Circuit have given legal effect to the Determinations of Hazard
in deciding petitioners lost the “right to exclude” or “lost
possession” of their property.
Second, the lower courts ignored Supreme Court precedent
in Kaiser Aetna v. United States, 444 U.S. 164 (1979) and created
an exception to the application of the Fifth Amendment in
~~~——Petermination of Hazard cases and applied a regulatory taking
analysis instead ofa physical taking analysis to support the taking
or spoliation. It appears both the United States and the MAC
deemed petitioners’ property was more valuable to the public
as part of the navigable airspace. The petition should therefore
be granted for the same reason the petition for writ of certiorari
was granted in Kelso, et al. v. City of New London, et al.,
No. 04-108, namely it represents a case where private property
was taken by the United States as “navigable airspace” or taken
and transferred to an adjacent property owner for the benefit of
the public in an act of spoliation.
At I ta i wk I MBP REF Yh
11
Third, the First Circuit and District Court improperly
decided the issue of State sovereign immunity and improperly
concluded the decision of the United States Court of Federal
Claims decision was res judicata and failed to properly evaluate
the jurisdictional limitations imposed by Congress and the U.S.
Constitution on Article I and Article III Courts.
I. Does the Fifth Amendment Provide Protection Against
Governmental Action That Prevents A Private
Landowner From Removing Illegal Buried Waste And
Erecting a Boundary Fence in Order to Grant the Public
the Right of Transit on the Surface and at Least Three
Feet Below the Surface of Private Property.
The First Circuit and District Court failed to both quiet
title and apply a per se takings analysis to a case involving the
taking or spoliation of private property. The taking or spoliation
of private property included the taking of the ground and at
least three feet below the ground and included the taking of the
right of the petitioners to remove illegal buried waste and exclude
the public by replacing a boundary fence. The physical taking
or act of spoliation involved governmental action that require
the petitioners to submit to the physical occupation of the land
and the very soil itself. “This element of required acquiescence
is at the heart of the concept of occupation.” FCC v. Florida
Power Corp., 480 U.S. 245, 252 (1987).
The common law right to the soil included the right to the
sky and was based on the Latin maxim Cujus est solum, ejus est
usque ad coelum et ad inferos or, “To whomsoever the
soil belongs, he owns also to the sky and to the depths.”
Blacks Law Dictionary 341 (Sth ed. 1979). In this case the
surface of the larid, the soil and below the soil has been deprived
the landowners by Governmental action that allows the right of
public passage on and at least 3 feet below the surface of the
petitioners’ property and forces petitioners to suffer buried waste
on their property.
12
United States v. Causby, 328 U.S. 256, 261 (1946)
recognized that the growth of aviation necessitated some
modification of the common law concept. This modification
had been codified in the Air Commerce Act of 1926, Ch. 344,
§ 10, 44 Stat. 574 presently codified at 49 U.S.C. § 40102(30)
where Congress declared “navigable airspace” of the United
States to include airspace needed to ensure safety in the takeoff —
and landing of aircraft. Congress in 49 U.S.C. §§ 40103(a)(1)
and (a)(2) further declared that “navigable airspace” was within
the “exclusive sovereignty” of the United States and that a
“citizen of the United States has a public right of transit through
navigable airspace.” Causby at 241, recognized that where this
“public highway” interfered with the landowner’s use and
enjoyment of the land the landowner was entitled to
compensation. In this case the interference with the use and
enjoyment of the land by the public highway converts at least 5
acres of petitioners’ property into public land.
Public land is “[l]ands or interests held by the government
without regard to how the government has acquired ownership
...” Black’s Law Dictionary, 893 (8" ed. 2004). It has long been
unlawful for a landowner to erect a fence enclosing a public
highway or public lands. Camfield v. United States, 167 U.S.
518 (1896) and Cameron vy. United States, 148 U.S. 301 (1892).
Petitioners’ land could have only become public land by an
act of the Government. The Airport stipulated it did not have
adverse possession of petitioners’ property. Massachusetts has
long recognized that private land becomes public land only by
an act of Government. A private individual cannot be forbidden
to maintain a fence® on his own property that injures no one
except those who desire to pass over a private road across his
6. The importance of a boundary fence was best explained by
Robert Frost’s well known adage, “good fences make good neighbors.”
R. Frost North of Boston, “Mending Wall” (1914).
13
land. Requiring a private landowner to convert a private road
into a public thoroughfare by the act of Government amounts
to an unconstitutional taking. Morse v. Stocker & Others, 1 Allen
150 (Mass. 1861). As pointed out in Morse:
The power of the legislature over private property,
under the constitution, is certainly not absolute, and
must be exercised under limitations which have been
carefully guarded and defined; and it is one of the
gravest duties of this court to determine, in any case
presented for its decision, whether those limitations
have been exceeded. And it is important, ... to
examine carefully, in the first place, what rights the
public already had in the streets or ways to which
the statute applies; and then to consider whether any
additional rights could be thus acquired or exercised.
Id. at 152.
In Morse the court correctly noted that without the
acquiescence of the Government in which the road was laid
out, the way would not have been considered a public way. Until
Governmental action the landowner was free to shut up the road
and terminate those passing over it since such use constituted a
license revocable at the landowner’s pleasure. When, however
the Government, without title from the landowner, deprives the
owner of the right to exclude the public such action is:
a substantial appropriation of private property to a
public use, within the meaning of the tenth article
of the bill of rights; and, as the statute makes no
provision for any compensation to the owner of the
property, it is in direct conflict with that
constitutional requirement.
Morse at 158.
At RADAR Pa eed Se
NA i US nln th cin bt ei
SEE | ea ee ee ae
14
Then, as now, once the Government claims an interest in
land and prevents the private landowner from excluding the
public, the only remedy is to seek an action of ejectment or
quiet title in a United States “District Court having jurisdiction.
over the locality where the land [is] enclosed, or any part thereof,
shall be situated, to hear and determine proceedings in equity
... Camfield v. United States, 167 U.S. 518, 522 (1892). Today
this procedure is included in 28 U.S.C. §§ 2409a and 1346(f)
which provides the district courts with exclusive original
Jurisdiction over actions to quiet title to lands in which the United
States claims an interest.
Petitioners’ loss of their “right of possession” to their
property was the result of Governmental action with the
Determinations of Hazard in 2001 that appropriated their
property for public use as part of the “navigable airspace” over
which the United States has exclusive sovereignty by virtue
of 49 U.S.C. § 40103(a)(1). Prior to the January, 2001
Governmental action petitioners and the Airport were free to
agree upon and accept the surveyed boundaries as the policy of
most courts is to encourage private boundary settlement
agreements. See Powell on Real Property, Vol. 9 § 68.03(3]
pp. 68-10. Petitioners’ property rights could not have been
privately appropriated since the Airport had stipulated that it
did not acquire possession of petitioner’s property by adverse
possession. This stipulation between private ‘parties was
effectively trumped by the United States Determinations of
Hazard which identified petitioners’ property as “navigable
airspace.”
As pointed out in United States v. City of New Haven, 496
F.2d 452 (2d Cir. 1974); cert. denied and app. dism’d, 419 U.S.
958 (1974), once petitioners’ property was classified as
“navigable airspace” no state court decision could infringe upon
or change the right of the United States to control and exercise
15
its sovereignty over this “navigable airspace.” Once petitioners’
property became part of the “navigable airspace” of the United
States, petitioners only option was to seek to clear title to their
property under 28 U.S.C. § 2409a. Under 28 U.S.C. § 2409a,
actions to quiet title to property in which the United States claims
an interest are within the exclusive original jurisdiction of the
district courts. See 28 U.S.C. § 1346 (f).
The mandatory legal effect of Determinations of Hazard is
demonstrated in this case by analysis of 49 U.S.C. § 44718 and
more particularly section 44718(b) under which the
Determinations of Hazard were issued and 49 U.S.C. § 46301(a)
providing for a civil penalty and 49 U.S.C. § 46316 providing
for a criminal penalty. The civil penalties of 49 U.S.C. § 46301(a)
exclude sections 44717 and 44719-44723 but do not exclude
Section 44718. The criminal penalty in 49 U.S.C. § 46316
excludes only Section 4471 8(a) but not Section 44718(b) which
specifically provided for the issuance of the Determinations of
Hazard in this case.
Petitioners, in oral argument before the First Circuit pointed
out that violation of the Determinations of Hazard carried
civil and criminal penalties under federal law and cited both
49 U.S.C. § 46301 and 49 U.S.C. § 46316 to demonstrate the
Determinations of Hazard in this case have an enforceable legal
effect. Petitioners repeatedly argued the Determinations of
Hazard have an enforceable legal effect and cited the separate
civil and criminal penalties under the laws of the Commonwealth
of Massachusetts Chapter 90 Section 35B and Section 44.
Airport Design Advisory Circular 150/5300-13 recognizes
and supports the “required acquiescence” at the heart of physical
occupation by the requirement to remove any replacement fence
or hill. Airport Design Advisory Circular 150/5300-13 p. 4
16
requires removal of obstructions to air navigation that were the
subject of the previous Determinations of Hazard by providing:
(6) 14 CFR Part 77 Obstructions to Air Navigation.
‘Obstructions to air navigation must be removed
unless an FAA aeronautical study, based on proposed
operations, determined otherwise.’
In this case the existing Determinations of Hazard based
on FAA Aeronautical studies have already determined otherwise.
Any replacement fence or hill would now have to be removed.
Removal would be required as the United States has never
disclaimed its adverse interest in petitioners’ property by
rescinding or revoking their Determinations of Hazard as
contemplated by 28 U.S.C. § 2409a.
The Government effects a physical taking when it requires
the landowner to submit to the physical occupation of his land.
“This element of required acquiescence is at the heart of the
concept of occupation.” FCC v. Florida Power Corp., 480 U.S.
245, 252 (1987). Periodically flooding a landowners property
Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), taking away
the right to exclude the public from private property Kaiser
Aetna v. United States, 444 U.S. 164, 176 (1979) or doing little
more than requiring a landowner to suffer the installation of a
cable requires compensation under the Takings Clause if the
Government is responsible for the compelled physical invasion
of the property.
This Court has repeatedly held that as to property reserved
for private use, “the right to exclude [others is] one of the most
essential sticks in the bundle of rights that are commonly
characterized as property.” Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser
Aetna v. United States, 444 U.S. 164, 176 (1979). When the
Government physically takes possession of an interest in
onsniiaensaniceieiil
17
property for some public purpose, it has a categorical duty to
compensate the former owner regardless of whether the interest
taken constitutes an entire parcel or merely a part thereof
United States v. Pewee Coal Co., 341 U.S. 114, 115 (1951).
“Government occupation of private property deprives the
property owner of this use of the property, and it is this
deprivation for which the Constitution requires compensation”
Loretto at 432 quoting YMCA v. United States, 395 U.S. 85, 92
(1969).
Despite clear precedent demonstrating that compelled
physical invasion of private property triggers a per se physical
taking analysis, the First Circuit’s affirmance of the District
Court improperly accepted the regulatory taking analysis of the
Court of Federal Claims. Moreover, both the First Circuit and
the District Court improperly construed the Eleventh
Amendment and improperly relied upon the Federal Claims
decision as being res judicata on all issues raised in petitioners
Complaint including quiet title under 28 U.S.C: § 2409a which
was beyond the jurisdiction of the Court of Federal Claims.
Petitioners’ loss of the “right to exclude,” “right of
possession” and the right of exclusive use of their property to
the public warrant serious consideration under the Fifth
Amendment due to available civil and criminal sanctions, both
state and federal. The taking of private land by the United States’
imposition of a navigational servitude is complete and unless
rectified by the Court is inconsistent with the protections
afforded landowners under the Fifth Amendment.
18
II. Did The Waiver Of Sovereign Immunity In Actions To
Quiet Title Under 28 U.S.C. § 2409a Include The State
Where The State Claims An Interest In The Same
Property As Claimed By The United States And Where
The State Constitution Prohibits The Taking Of Private
Property For Public Use And The State Voluntarily
Participated In The Regulatory Regime Established By
Congress.
It would appear to be axiomatic that a State is not free to
assert a constitutional right to do a constitutional wrong.
The purpose of State sovereign immunity is to shield State
governments against private actions while defining the
relationship between the federal and state governments.
In defining these relationships, State governments must be in
compliance with the U.S. Constitution and federal law under
the Supremacy Clause. While some commentators have labeled
Eleventh Amendment decisions as a “tortuous line of Supreme
Court cases” or “little more than a hodgepodge of confusing
and intellectually indefensible judge made law” the principle
of Eleventh Amendment sovereign immunity is to protect state
autonomy while ensuing compliance with federal law. See
Constitutional Law Principles and Policies, Chemerinsky
Second Edition p. 179 (2002) and law review articles cited
therein. The First Circuit and District Court improperly
concluded the petitioners’ action under 28 U.S.C. § 2409a was
barred by the Eleventh Amendment.
Congress intended 28 U.S.C. § 2409a to provide the,
“exclusive means by which adverse claimants could challenge
the United States’ title to [or interest in] real property.” Block v.
North Dakota, 461 U.S. 273, 286 (1983). 28 U.S.C. § 2409a is
a waiver of sovereign immunity by the United States and
Congress intended to include the States in the waiver so that
QTA actions included all persons whether they be States, private
citizens or private or public corporations.
19
In Block v. North Dakota the State argued that the statute
of limitations in 28 U.S.C. § 2409a was not binding upon the
State since it waived only federal sovereign immunity and not
State sovereign immunity. In deciding the waiver of federal
sovereign immunity included the State in judicial challenges to
the title to real property the Court stated:
In fashioning sovereign — immunity waiver
legislation, Congress is certainly free to exempt the
States from a statute of limitations or any other
condition of the waiver. But there is no merit to North
Dakota’s assertion that a condition on a
congressional waiver of ‘federal sovereign immunity
should be regarded as inapplicable to States in
absence of express intent to the contrary. This Court
has never sanctioned such a rule.... And in
Minnesota v. United States, 305 U.S., at 388 — 389,
where the United States had waived its immunity
on the condition that any suit against it had to be
brought in a federal court, we concluded without
hesitation that plaintiff State’s suit should have been
dismissed for lack of jurisdiction, because it had been
filed in state court, even though the federal — court
condition did not expressly apply to States. Thus
neither Congress nor the decisions of this Court have
suggested that the States are presumed exempt from
satisfying the conditions placed by Congress on its
immunity waivers; and, in light of our Constitution,
which makes federal law ultimately supreme, these
holdings should not have been surprising.
461 U.S. at 288-89 (emphasis supplied).
Congress in passing 28 U.S.C. § 2409a recognized the
necessity of protecting national public interests. National public
interest includes uniform national standards for public use
20
airports. Therefore, suit by a private individual or a State against
the United States affects the congressionally recognized public
interest. Congress had no intention of exempting the State from
compliance with 28 U.S.C. § 2409a when the State and Federal
government take title or claim an interest in the same property
adverse to the property rights of a private landowner.
“That section [§ 2409a] must be applied to the States because
they are necessarily included by the nature of the mischiefs to
be remedied.” Block v. North Dakota, 461 U.S. at 290 quoting
Weber v. Board of Harbor Comm'rs, 85 U.S. 57, 70 (1873).
A Quiet Title action for the adjudication of who owns the
surface and three feet below the surface of petitioners’ land is
exclusively and uniquely within the jurisdiction of the district
court as mandated by Congress under 28 U.S.C. § 2409a.
Only the district court as a court of equity can acquire jurisdiction
of all the rights involved and also of all the owners of those
rights, and thus settle and permanently adjudicate in a single
proceeding all the rights, or claims to rights, of all the claimants
to the common land that has been classified as “navigable
airspace” over which the United States has exclusive sovereignty
under 49 U.S.C. § 40103(a)(1). The First Circuit and District
Court failed to quiet title to petitioners’ property as title to the
disputed property remains even more complicated in view of
the District Court’s statement the Airport is in possession of
petitioners’ property in spite of the stipulation by the Airport in
State court that it did not have adverse possession of petitioners’
property.
In such cases where the requirement exists for a uniform
national standard the Court has applied the Supremacy Clause
to preempt State and local interests. City of Burbank v. Lockheed
Air Terminal, 411 U.S. 624 (1973). Petitioners’ complaint
asserts a straightforward claim of preemption actionable under
the Supremacy Clause of the United States Constitution,
21
U.S. Const., art. VI, cl. 2. This Court has never required that
such preemption claims be expressly authorized by an act of
Congress. Rather, preemption claims are actionable directly
under the Supremacy Clause and do not require a separate
statutory cause of action under the federal law at issue.
See, e.g., Crosby v. National Foreign Trade Council, 530 US.
363, 387-88 (2000); Brown v. Hotel and Restaurant Employees
and Bartenders Int’I Union Local 54, 468 U.S. 491, 501-02
(1984). Eleventh Amendment sovereign immunity also does not
divest the federal courts of exclusive jurisdiction where federal,
State and private rights are intertwined. California v. Deep Sea
Research, Inc., 523 U.S. 491 (1998). The reasoning in California
v. Deep Sea Research is equally applicable to the present case.
A quiet title action seeking resolution of the conflicting
federal, state and private claims to “navigable airspace” which
includes the surface and below the surface of petitioners’
property is as important as the federal, state and private claims
were to the federal property on board the S.S. Brother Johnathan.
The United States is a party to this action and like California v.
Deep Sea Research the Commonwealth of Massachusetts has
posited an adverse claim to a unified res namely, “navigable
airspace.” This “navigable airspace” like the property in the
S.S. Brother Johnathan constitutes a unified res that is not within
the State’s possession. California v. Deep Sea Research at 495. .
See also Pennhurst State School & Hosp. v. Halderman (II),
465 U.S. 89, 105 (1964) (where the court recognized the need
to promote the supremacy of federal law must be accommodated
within the Constitutional immunity of the State).
The sovereign immunity issue in this case also squarely
presents the question of whether a State can use sovereign
immunity to interfere with federal property and federal law. As
pointed out in Verizon Mad. Inc. v. Public Serv. Comm'n of MD,
535 U.S. 635, 645 (2002) such interference risks the waiver of
sovereign immunity.
22
The Commonwealth in this case not only voluntarily
participated but appears to have been directly responsible for
monitoring and measuring the runway at the Airport as agent
and as copartner with the United States in the taking or spoliation
of petitioners’ property. These actions by the Commonwealth
coupled with the Massachusetts Constitutional prohibitions
against taking private property constitute a waiver for the Taking
or spoliation of petitioners’ property. Article 20 of the
Constitution of the Commonwealth provides for the payment
of just compensation upon taking of private property for a public
use by providing:
... no part of the property of any individual can,
with justice, be taken from him, or applied to public
uses without his own consent . . .And whenever the
public exigencies require that the property of any
individual should be appropriated to public uses, he
shall receive a reasonable compensation therefor.
Such constitutional provisions have been held to be self-
executing waivers of State sovereign immunity. Cereghino v.
State, 230 Or. 439 (Or. 1962); Angelle v. State, 212 La. 1069
(La. 1948); Schumette v. State, 147 Neb. 193 (Neb. 1946); Rice
Hope Plantation v. South Carolina Pub. Serv. Authority, 216
S.C. 500 (S.C. 1907) and Dillard v. Austin Indep. School Dist.,
806 S.W.2d 589 (Tex. Ct. App. 1991). See also State v. 0.24148,
etc., Acres of Land, 53 Del. 439, 171 A.2d 228, 231 (Del. 1961)
where the court stated:
It seems well settled that such constitutional
provisions are self-executing waivers on the part of
the State of its sovereign immunity. Consequently,
where there is a taking of property for public use
without a condemnation proceeding, the filing of a
separate action for damages against the State by the
landowner as a matter of law has been consented to
23
by the State. This is a common — law remedy and
depends in no wise upon the institution by the State
of condemnation proceedings. (Citations omitted).
It would appear a similar waiver would be consistent with
Morse v. Stocker & Others, | Allen 150 (Mass. 1861) in which
the court observed:
We can see in all this nothing but a substantial
appropriation of private property to a public use,
within the meaning of the tenth article of the bill of
rights; and, as the statute makes no provision for
any compensation to the owner of the property, it is
in direct conflict with that constitutional
requirement. ;
Id. at 158.
In this case the State’s constitutional waiver was
incorporated by Congress in 28 U.S.C. § 2409a which made
the Quiet Title Act the exclusive means by which adverse
claimants could challenge United States’ title and interest in
real property. This waiver of sovereign immunity was per force
intended to include the States if the State also made claim to the
same property.
Ill. Congress in Dividing Jurisdiction Between Article Il
District Courts and the Article I Federal Court of
Claims Did Not Intend to Impair The Vitality of the
Fifth Amendment By Allowing The Limited
Jurisdiction Of The Article I Court To Become
Res Judicata Over An Action To Quiet Title Under
28 U.S.C. § 2409a.
The major problem with the First Circuit decision and the
District Court decision is that it gave res judicata effect to an
Article I court decision not having subject matter jurisdiction
over the claims presented in district court. The District Court
ee
24
for the District of Massachusetts is an Article III court to which
Congress gave exclusive original jurisdiction over actions to
quiet title under 28 U.S.C. § 2409a and 28 U.S.C. § 1346(f).
See California v. Arizona, 440 U.S. 59 (1979). In California
the Supreme Court noted Congress intended to confine
jurisdiction to the federal courts when an action was required
to quiet title to an estate or interest in real property in which an
interest is claimed by the United States.
The United States Court of Federal Claims is an Article I
court which is akin to an administrative agency or legislative
court with its jurisdiction limited by a particular type of case
for which Congress created the Article I court. Congress created
the Federal Court of Claims to decide claims for money damages
against the United States. In creating an Article I court Congress
cannot give it the same jurisdiction as an Article III court,
otherwise the constitutional distinction between an Article I court
and the concept of an Article III protected court would have no
meaning. Northern Pipeline Co. v. Marathon Pipe Line, Co.,
458 U.S. 50 (1982) stayed 459 U.S. 813 (1982) (violation of
Article III for non Article III judges to have jurisdiction granted
by § 241(a) of the Bankruptcy Act of 1978).
Congress has the power to promulgate rules that effect
federal court jurisdiction. Chicago v. International College of
Surgeons, 522 U.S. 156 (1997). The jurisdictional limitations
imposed on federal court jurisdiction must be observed by the
courts and litigants alike. The petitioners were required by a
Congressional jurisdictional mandate to divide their claim along
the jurisdictional lines imposed by Congress for Article I and
Article III courts.
Congress did not assign equitable, common law Fourteenth
Amendment, Fifth Amendment Due Process relief, claims under
42 U.S.C. § 1983 and quiet title claims to the Court of Federal
25
Claims. The Court of Federal Claims does not have common
law jurisdiction over issues of title to property rights and
equitable issues appurtenant thereto as pled in the District Court
complaint.
Congress in the Tucker Act 28 U.S.C. § 1491(a)(1)
gave the Court of Federal Claims exclusive jurisdiction over
money claims in excess of $10,000 against the United States.
The Tucker Act constituted a limited waiver of sovereign
immunity and vested jurisdiction for money damages in the
Court of Federal Claims. The Tucker Act did not waive sovereign
immunity for quiet title actions, invalidation actions and actions
requiring equitable remedies. See Eastern Enterprises v Apfel,
524 U.S. 498, 520 (1998); United States v. Mitchell, 463 U.S.
206, 216 (1983) and Bowen v. Massachusetts, 487 U.S. 879,
905 (1988). Sovereign immunity for Quiet Title actions was
separately waived in 28 U.S.C. § 2409a. See California v.
Arizona, 440 U.S. 59, 61-62 (1979) and Block v. North Dakota,
461 U.S. 273, 275-76, (1983). Exclusive original jurisdiction
for Quiet Title actions is in the United States District Court
pursuant to 28 U.S.C. § 1346(f),
The unsettled relationship between the various Circuit
courts as to the division of a cause of action between money
damages and equitable relief under the Taking Clause is outlined
in Eastern Enterprises v Apfel, 524 U.S. 498, 520-22 (1998).
The unsettled relationship is central to this case as 28 U.S.C.
§ 2409a constituted a waiver of sovereign immunity and
jurisdictionally mandated a separate action to quiet title in the
District Court 28 U.S.C. § 1346(f). Due to the jurisdictional
limitations placed on Article I and Article III courts by Congress
and the Constitution and the different waivers of sovereign
immunity under 28 U.S.C. § 1491(a)(1) under the Tucker Act
and 28 U.S.C. § 2409a under the Quiet Title Act the decision of
_
26
the Court of Federel Claims could not be res judicata on the
quiet title claim under 28 U.S.C. § 2409a and the other claimed
relief, even if the Court of Federal Claims decision were correct
and not before this court in Docket No. 04-0496.
The doctrine of res judicata or claim preclusion generally
requires a party to bring all grounds for recovery arising from a
single transaction or series of transactions in a single lawsuit.
This rule of claim preclusion as well as collateral estoppel does
not apply where the initial forum does not have the power to
award the full measure of relief due to jurisdictional limitations
of the court. See Cromwell v. County of Sac., 94 U.S. 351 (1876)
and New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
In the present case Congress mandated the division of
petitioners cause of action along the jurisdictional lines of the
Article I United States Court of Federal Claims and Article III
United States District Court for the District of Massachusetts.
Petitioners’ complaints in each court cited the jurisdictional
limitations of the other court as well as the fact both actions
were being filed the same day due to the jurisdictional limitations
of each court mandated by Congress. Notwithstanding
petitioners’ efforts to clearly delineate the jurisdictional
limitations of each court the First Circuit and the District Court
gave res judicata effect to the judgment of the United States
Court of Federal Claims for claims that were beyond the
jurisdiction of the Article I court.
Res judicata and collateral estoppel doctrines require the
initial forum have the power to award the full measure of relief
sought in the later litigation. See Restatement (Second) of
Judgments §§ 11, 26 (1982) and D. Sharpiro Civil Procedure:
27
Preclusion in Civil Actions 25, 28-29 (2001)’. As stated in the
Restatement (Second):
The general rule [against relitigation of a claim] is
largely predicated on the assumption that the
jurisdiction in which the first judgment was rendered
was one which put no formal barriers in the way of
a litigant’s presenting to the court in one action the
entire claim including any theories of recovery or
demands for relief that might have been available to
him under applicable law. When such barriers in fact
existed and were operative against a plaintiff in the
first action, it is unfair to preclude him from a second
action in which he can present those phases of the
claim which he was disabled from presenting in the
first. Restatement § 26(1)(c) cmt. c.
In cases such as the present where a party is precluded from
litigating issues due to formal jurisdictional or sovereign
immunity barriers imposed by Congress a subsequent action
will not be barred by res judicata even where it arises from the
same factual circumstances as the other action. Due to the
jurisdictional limitations on the relief available in the United
States Court of Federal Claims, that decision, even if correct,
could not have claim preclusive effect in district court.
See Montana v. United States, 440 U.S. 147, 153-54 (1979).
The First Circuit and District Court both erred in deciding
the Court of Federal Claims decision was res judicata in the
District Court Quiet Title action under 28 U.S.C. § 2409a as the
claims were beyond the subject matter jurisdiction of the Article
7. Professor Shapiro touches upon the special problems embedded
in the doctrine of sovereign immunity and Congressional legislation
limiting the power of the court to certain matters and cites the “court’s
obligation to recognize sua sponte a potential lack of competence over
subject matter.
28
I court. The Court of Federal Claims did not have jurisdiction
over the parties, issues or subject matter of the district court
action due to the jurisdictional limitations mandated by
Congress. The same day filed actions did not involve the same
claim and did not involve the same parties. Only the District
Court had subject matter and personal jurisdiction over the
Commonwealth of Massachusetts and the Tanner Hiller Airport
which were necessary parties in the QTA since each appear to
have diverse claims to petitioners’ property or the navigable
airspace of the United States.
The First Circuit and District Court’s reliance upon res
judicata to deny petitioners’ claim to quiet title has done more
to cloud title to petitioners’ land than it has to quiet title as it is
_in conflict with the stipulation filed in WCV 1992-2705 and
the decision of the Court of Appeals For the District of Columbia
Circuit for if the Determinations of Hazard indeed have no
enforceable legal effect, they could not have changed possession
to petitioners’ property. More than a century ago this Court
explained that:
Where questions arise which affect titles to land
it is of great importance to the public that when they
are once decided they should no longer be considered
open. Such decisions become rules of property, and
many titles may be injuriously affected by their
change. ... [W]here courts vacillate and overrule
their own decisions ... affecting the title to real
property, their decisions are retrospective and may
affect titles purchased on the faith of their stability.
Doubtful questions on subjects of this nature, when
once decided, should be considered no longer
doubtful or subject to change.
Nevada v. United States, 463 U.S. 110, 129 n.10 quoting
Minnesota Co. v. National Co., 70 U.S. 332 (1865).
APPENDIX
la
APPENDIX A — OPINION OF THE UNITED STATES |
COURT OF APPEALS FOR THE FIRST CIRCUIT
DATED AUGUST 25, 2004
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 03-2616
JOHN BRENEMAN and WILLIAM D. BRENEMAN,
Plaintiffs, Appellants,
Vv.
UNITED STATES ex. rel. THE FEDERAL AVIATION
ADMINISTRATION; COMMONWEALTH OF
MASSACHUSETTS ex. rel. MASSACHUSETTS
AERONAUTICS COMMISSION; 70 ACRES OF LAND
A/K/A TANNER HILLER AIRPORT,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Seyla, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez Circuit Judge.
2a
Appendix A
LIPEZ, Circuit Judge.
In the continuation of a long legal battle, plaintiff landowners
brought suit in December 2002 against the Massachusetts
Aeronautics Commission (MAC), the Federal Aviation
Administration (FAA) and Tanner Hiller Airport, a privately-
owned facility, claiming that various actions taken by these
entities infringed upon the landowners’ property rights.
The district court granted the motions to dismiss of the three
defendants, and dismissed the complaint with prejudice.
Concluding that the plaintiffs’ claims were barred by
principles of res judicata and sovereign immunity, we affirm.
We also grant the Airport’s motion for fees and costs as a
sanction for the plaintiffs’ frivolous appeal of the decision
in favor of the Airport.
I.
In the late 1980s, the Airport hired a contractor to extend its
runway Closer to the boundary of the Brenemans’ property.'
As part of that project; the contractor removed a fence, a
hill, and other obstacles that were on the Brenemans’ side of
the property line. The Brenemans allege that they discovered
the alterations in 1991 and brought suit in the Massachusetts
Superior Court in September 1992 for, inter alia, trespass,
conversion, and to quiet title against the Airport.?
1. Although the property owned by the Brenemans is largely
undeveloped, there is a residence on it.
2. The Airport filed a counterclaim in this action, claiming that
it had acquired the property through adverse possession. The court
dismissed that claim without prejudice in response to a stipulation
from the parties that was docketed on April 2, 2001.
3a
Appendix A
See Breneman v. Wolfson, No. WCV922705, 1999 WL
1203920 (Mass.Super.Ct. Oct. 21, 1999).? They added the
gravel company as a defendant in April 1997. The court
awarded summary judgment to the gravel company on statute
of limitations and repose grounds in Breneman v. Tanner,
No. 922705, 1999 WL 1336436 (Mass.Super.Ct. Feb. 1,
1999), and granted summary judgment to the Airport on the
same grounds a few months later in Breneman v. Wolfson,
No. WCV922705, 1999 WL 1203920 (Mass.Super.Ct.
Oct. 21, 1999).
In late 1997, while their superior court case was pending,
the plaintiffs wrote a letter to the FAA, complaining that they
learned during discovery that the Airport’s runway was longer
than the length listed in the New York Section Chart for
Pilots, the FAA’s official directory of airports in that region.
The agency apologized for the error and published a corrected
version of the sectional chart on May 18, 2000.
When the Brenemans learned of that correction, they filed
notices with the FAA and the MAC, proposing to construct a
hill and a boundary fence to replace the ones that the
contractors had removed. The FAA responded with two
hazard studies on January 5, 2001, concluding that both
proposed construction projects would create potential dangers
to air traffic at the Airport. The hazard studies determined
that the proposed ten foot high fence would exceed the
“primary surface,” an imaginary plane extending two hundred
feet from the end of the runway that provides a safety buffer
for aircraft, by thirteen feet, and that the proposed hill would
3. We have provided a chronology of the various legal
proceedings in the appendix to this opinion.
4a
Appendix A
exceed the “approach surface,” an imaginary plane extending
outward and upward from the end of the runway, by sixty-
two feet.
After reviewing the FAA studies and providing the
Brenemans with a public hearing, the MAC denied the
Brenemans a permit to build the hill on August 15, 2001.
The Brenemans challenged the MAC’s denial of their permit
in Worcester Superior Court, alleging that the commission
violated Massachusetts law and that it took *36 their property
without due process in violation of the Fifth and Fourteenth
Amendments to the United States Constitution and Article
10 of the Massachusetts Declaration of Rights. The court
denied all of the Brenemans’ claims. See Breneman v.
Massachusetts Aeronautics Comm'n, No. 0101893B, 2004
WL 856640, (Mass.Super.Ct. Mar. 15, 2004).
On April 9, 2001, while their permit application with MAC
was still pending, the Brenemans filed appeals of the FAA’s
hazard studies in the United States Court of Appeals for the
D.C. Circuit. That court issued its unpublished decision on
February 26, 2002, after the MAC denied the construction
permit. Concluding that the FAA’s fence study was purely
advisory in nature and that the plaintiffs had not suffered
any actual harm from its publication, the court held that the
Brenemans lacked standing to challenge that hazard
determination. Breneman vy. FAA, No. 01-1165, 2002 WL
449015 at *7-*8 (D.C.Cir. Feb.26, 2002) (per curiam).
Observing that MAC’s denial of the Brenemans’ hill permit
was based in part on the FAA study, the court concluded that
they had demonstrated a sufficiently concrete harm to
establish standing with regard to the FAA hill study. However,
Sa
Appendix A
the court concluded that the study was committed to agency
discretion and thus was unreviewable under the
Administrative Procedure Act (“A.P.A.”). Jd. The court also
dismissed their “constitutional challenges” to the FAA’s hill
determination without identifying what those challenges
were. /d. at *2. After reviewing the record from those
proceedings, we conclude that the court was referring to the
Brenemans’ claim that the FAA should have granted them
notice and an opportunity to comment while it-was—
conducting the study.‘
On December 13, 2002, the Brenemans continued their legal
campaign by filing two more suits, this time in the United
States Court of Federal Claims and the United States District
Court for the District of Massachusetts. Their complaint in
the Court of Federal Claims alleged a physical and regulatory
taking against the FAA.’ The physical taking claim was based
on 49 U.S.C. § 40102(a)(32), which defines “navigable
airspace” as including “airspace needed to ensure safety in
takeoff and landing of aircraft.” The Brenemans alleged that
the FAA’s correction of the runway length in the updated
4. The court noted that the Brenemans violated the D.C.
Circuit’s “chutzpah doctrine” by challenging the propriety of the
hazard study “when they conceded at oral argument that they intend
to build the hill in part to impede air traffic at the Airport.” /d. at *1.
5. The Brenemans filed their Court of Federal Claims action a
few hours before they filed their Feoeral District Court complaint in
an effort to maintain the Court of Federal Claims’s subject matter
jurisdiction over the case. See 28 U.S.C. § 1500 (“The United States
Court of Federal Claims shall not have jurisdiction of any claim for
or in respect to which the plaintiff or his assignee has pending in any
other court any suit or process against the United States. . . .”).
6a
Appendix A
sectional chart constituted a tacit approval of the runway
extension. Observing that this extension forced the runway
primary surface beyond the property line, the Brenemans
alleged that the FAA took title to their airspace and the first
three feet of soil lying within two hundred feet of the end of
the runway and converted it into navigable airspace. They
based their regulatory taking claim on the FAA’s
determination that the construction of the hill and the fence
would create hazards for air travel.
The Court of Federal Claims rejected their physical taking
claim, concluding that it could not find a precedent to support
the proposition that “mere creation or recognition of
navigable airspace” can result in a taking. It denied their
regulatory taking claim because the hazard reports were only
advisory studies that had no enforceable legal effect. See
Breneman v. United States, 57 Fed. Cl. 571 (2003), aff'd,
No. 03-5156, 2004 WL 1153329 (Fed.Cir. May 10, 2004).
As stated, the Brenemans also filed a seven count federal
complaint in the District of Massachusetts against the MAC,
the FAA, and the Airport on the same day that they filed
their complaint in the Court of Federal Claims. The complaint
repeated the physical and regulatory takings claims® as well
as the due process claim that it had previously litigated in
the D.C. Circuit. It also included claims that 1) the hazard
studies were substantively infirm; 2) the MAC and the Airport
6. The count marked as “Inverse Condemnation” was actually
a sprawling fifteen page, forty paragraph litany of grievances,
including both physical and regulatory takings, lodged against the
parties. The general thrust of that count seems to concern the inverse
condemnation/regulatory taking.
7a
Appendix A
conspired to violate the Brenemans’ constitutional rights by
concealing the date on which the Airport extended its runway;
and 3) all of the parties “appropriated and confused” the
Brenemans’ property rights. There was also a claim to quiet
title against the FAA.
In dismissing the claims against the Airport, the district court
summarily rejected the inverse condemnation, section 1983,
and “use of property” claims by noting that these claims may
not be brought against private parties. It interpreted the
Brenemans’ allegations that the actions of the defendants
“constitute an appropriation and confusion of plaintiffs’
property with the Tanner Hiller Airport property” as possibly
raising a trespass claim and dismissed that claim on statute
of limitations grounds. Finally, it concluded that there was
no support for the allegation that the MAC and the Airport
conspired to violate the Brenemans’ rights. The district court
dismissed the allegations against the FAA and the MAC on
res judicata and Eleventh Amendment grounds respectively.
Breneman vy. United States ex rel. the Fed. Aviation Admin.,
No. Civ. A02-12400RWZ, 2003 WL 22203684 (D.Mass.
Sept.23, 2003).
The Brenemans raise three claims on appeal. First, they claim
that the district court improperly dismissed their quiet title
claim against the FAA based on its erroneous conclusion that
the Airport held actual possession of the disputed property.’
Second, they claim that the court applied the wrong standard
when it dismissed their takings claims against the FAA and
7. The district court apparently viewed the quiet title claim
directed at the FAA as a claim directed at the Airport. This error
does not affect our disposition of this appeal.
8a
Appendix A
the MAC. Third, they argue that the court failed to apply a
sufficiently rigorous test to the MAC’s claim of Eleventh
Amendment immunity. They do not challenge the district
court’s dismissal of their claims against the Airport.
II.
A. The Ciaims against the FAA
The Brenemans ignore the grounds upon which the district
court dismissed their claims against the FAA. Rather than
address the res judicata effects of the Court of Federal Claims
decision, which formed the basis of the district court’s
opinion, they raise irrelevant arguments regarding the
substantive standards that the court should have applied to
their takings and quiet title claims against the FAA.
Concluding that the district court’s ruling regarding the res
judicata effects of the Court of Federal Claims decision was
correct, we ignore‘the Brenemans’ extraneous arguments.
“Under the federal law of res judicata, a final judgment on
the merits of an action precludes the parties or their privies
from relitigating claims that were raised or could have been
raised in that action.” Apparel Art Int’l, Inc. v. Amertex
Enters. Ltd., 48 F.3d 576, 583 (1st Cir.1995) (footnote
omitted). Res judicata “relieve[s] parties of the cost and
vexation of multiple lawsuits, conserve[s] judicial resources,
and ... encourage[s] reliance on adjudication.” Allen vy.
McCurry, 449 U.S. 90, 94 (1980). The elements of a res
judicata claim under federal law are: “(1) a final judgment
on the merits in an earlier proceeding, (2) sufficient
identicality between the causes of action asserted in the earlier
9a
Appendix A
and later suiis, and (3) sufficient identicality between the
parties in the two actions.” Banco Santander de P.R. v. Lopez-
Stubbe (In re Colonial Mortgage Bankers Corp.), 324 F.3d
12, 16 (ist Cir.2003). Recognizing that the judgment in the
Court of Federal Claims was final and that the FAA and the
Brenemans were both parties to the proceedings in the Court
of Federal Claims and in the Federal District Court, we can
quickly dispose of the first and third prongs. We apply a
“transactional approach” to the second prong of this test:
“The necessary identity will be found to exist if both sets of
claims—those asserted in the earlier action and those asserted
in the subsequent action—derive from a common nucleus of
operative facts.” Gonzalez v. Banco Cent. Corp., 27 F.3d 751,
755 (1st Cir.1994) (citation omitted).
We have no difficulty concluding that the Brenemans’ claims
are barred by the judgment in the Court of Federal Claims.
The complaints in both proceedings were based upon the
FAA’s correction of the sectional chart and its publication of
the two hazard studies; therefore, they both originated from
a “common nucleus of operative facts.” Indeed, it appears
that the Brenemans essentially filed identical takings claims
in both proceedings, and their quiet title claim seems to be a
duplicate of the takings claims filed under a different
heading.® Moreover, even if the Brenemans did not raise the
8. The paragraph in the district court complaint that was most
relevant to the quiet title action alleged that the United States claimed
the “right to control and regulate portions of the surface, above the
surface and below the surface of plaintiffs’ property, which interferes
with plaintiffs’ right to use, possess, dispose and enjoy their property
as well as the requirements of [a Massachusetts statute] that plaintiffs
(Cont'd)
10a
Appendix A
exact same claims in the Court of Federal Claims, we
conclude that they could have litigated all of their claims
against the FAA in the Court of Federal Claims. Without
belaboring the analysis, we agree with the district court’s
admonition that “Plaintiffs cannot continue to file lawsuits
until they obtain the result they seek.” Breneman, 2003 WL
22203684, at *3.
B. The Claims Against the MAC
The Brenemans complain that the district court improperly
dismissed their complaint against the MAC on Eleventh
Amendment grounds without conducting a sufficiently
detailed analysis of whether the commission is an “arm of
the state.” We conclude that the district court had a sufficient
basis for concluding that the MAC was entitled to immunity.
We often employ-a two-step test to determine if an entity is
an “arm of the state.” Fresenius Med. Care Cardiovascular
Res., Inc. v. Puerto Rico and Caribbean Cardiovascular Ctr
Corp., 322 F.3d 56, 65 (1st Cir.2003). In the first step, we
look at structural factors to determine whether “the state
(Cont'd)
return their property to its ‘original condition.’” The complaint also
alleged that the FAA and MAC studies and orders “have created a
cloud on the title to plaintiffs’ property by preventing plaintiffs from
removing buried waste, restoring their land to its ‘original condition.’”
In a separate paragraph, they claim that the agencies “in regulating
plaintiffs’ property as an Airport have placed a cloud cn plaintiffs’
title to their property by dedicating to the public on behalf of the
Tanner Hiller Airport rights to control use of the plaintiffs’ land on
the surface, above the surface and below the surface of plaintiffs’
property.” -
-
lla
Appendix A
clearly structured the entity to share its sovereignty.” Jd. at
68. However, “[i]f the factors assessed in analyzing the
structure point in different directions, then the dispositive
question concerns the risk that the damages will be paid from
the public treasury. . . . This analysis focuses on whether the
state has legally or practically obligated itself to pay the
entity’s indebtedness.” Jd.
We have no difficulty concluding that the Commonwealth
structured the MAC to share its sovereignty. As the district
court noted, “[i]n their Complaint, plaintiffs state that
defendant CMAC ‘is an administrative agency of the
Commonwealth of Massachusetts and acts for the
Commonwealth of Massachusetts.’” Breneman, 2003 WL
22203684, at *4. Furthermore, according to the affidavit filed
by Wayne C. Kerchner, MAC’s Chief Legal Counsel, the
commission is an agency within the Executive Office of
Transportation and Construction, its operating budget is
subject to appropriation by the General Court (the state
legislature) with the approval of the governor, and its hearings
and enforcement proceedings are subject to the State
Administrative Procedure Act. Finally, according to
Massachusetts statutory law, the governor appoints all of the
MAC commissioners, and the commission has general police
powers to regulate aeronautics through rules and regulations
that have the force of law. See Mass. Gen. Laws ch. 90, § 39.
Concluding that the MAC is entitled to Eleventh Amendment
immunity, we affirm the district court’s dismissal of the
Brenemans’ claims.
12a
Appendix A
C. The Airport’s Motion for Costs
Shortly after oral argument, the Airport filed a motion seeking
$3,865.22 in attorney’s fees and costs as a sanction for the
Brenemans’ appeal, and explaining its grievance:
[I]t is clear from Breneman’s [sic] Appellate Brief
that the issues raised in this Appeal were directed
to the other Appellees and not to the Airport. The
Airport raised this in its Brief and at oral
argument. As such the Breneman’s Appeal as it
relates to the Airport is insubstantial and not
reasonably calculated to result in a change in the
judgment as to the Airport.
In a subsequent response, without citing any authority, the
Brenemans argued that the appellees cannot move for
sanctions under Fed. R.App. P. 38 until a court has declared
that their appeal was frivolous.
There is no validity to the Brenemans’ claim. Rule 38 states:
“If a court of appeals determines that an appeal is frivolous,
it may, after a separately filed motion or notice from the court
and reasonable opportunity to respond, award just damages
and single or double costs to the appellee.” (emphasis added).
There are two requirements here: 1) a court must determine
that an appeal was frivolous and 2) the appellant must be
given notice and an opportunity to respond before the
imposition of sanctions. Neither the text of the rule nor our
case law requires a court to determine that an appeal was
frivolous before an appellee can move for sanctions.
However, the appellant must have notice of the request for
13a
Appendix A
sanctions and an opportunity to respond to it before the court
imposes sanctions.
The Rules Advisory Committee added the notice and
comment requirement to the rule in 1994 in response to the
Supreme Court’s admonition that sanctions “should not be
assessed lightly or without fair notice and an opportunity for
a hearing on the record.” Roadway Express., Inc. v. Piper,
447 U.S. 752, 767 (1980). See Fed. R.App. P. 38 advisory
committee’s notes (1994). With regard to the first form of
notice, a motion from one of the parties, the Committee
explained:
A separately filed motion requesting sanctions
constitutes notice. A statement inserted in a party’s
brief that the party moves for sanctions is not
sufficient notice. Requests in briefs for sanctions
have become so commonplace that it is unrealistic
to expect careful responses to such requests
without any indication that the court is actually
contemplating such measures. Only a motion, the
purpose of which is to request sanctions, is
sufficient.
Id. The Airport filed such a motion, and the Brenemans filed .
a detailed response to it. They have been afforded due process.
We can turn to the merits of the Airport’s motion.
The Airport’s motion for sanctions did not allege that the
Brenemans’ entire appeal was frivolous; it simply argued that
their appeal “‘as it relates to the Airport is insubstantial and
not reasonably calculated to result in a change in the judgment
l4a
Appendix A
as to the Airport.” As our imposition of a sanction in Ochoa
Realty Corp. v. Faria, 815 F.2d 812, 817-18 (1st Cir.1987),
demonstrates, the Airport did not have to prove that the entire
appeal was frivolous in order to justify its request for
sanctions. Although the Brenemans forced the Airport to incur
significant costs litigating this appeal by naming it as an
adverse party in the docketing statement, they failed to
explicitly address the district court’s dismissal of their claims
against the Airport. Despite the Airport’s repeated
protestations, the Brenemans never explained why they
considered the Airport to be an adverse party in this appeal.’
As we noted in Ochoa Realty, “[w]e will not countenance
frivolous impositions of this sort upon one’s litigation
adversaries.” Jd. at 818.
The Airport submitted an affidavit documenting $3,420 in
attorney’s fees and $445.22 in costs that it incurred defending
against the Brenemans’ appeal. We have no reason to question
the reasonableness of these costs, and the Brenemans have
not raised any issue as to reasonableness. Convinced that a
sanction of attorney’s fees plus costs is required under the
circumstances, we award $3,865.22 to the Airport.
9. The Brenemans argued in their response to the Airport’s
motion for sanctions that “[t]he Airport is an indispensable party to
this action due to its action in conspiring with the Government to
convert Appellants’ property into ‘navigable airspace’ and its
inconsistent positions with respect to ownership of the Appellants’
property.” Although the Brenemans alleged conspiracy theories in
their complaint, they developed no argument on this issue on appeal.
That omission is the critical point for our sanctions analysis.
15a
Appendix A
Il.
We affirm the judgment of the-district court. We award
attorney’s fees and costs totaling $3,865.22 to appellee Tanner
Hiller Airport.
So ordered.
l6a
APPENDIX B — MEMORANDUM DECISION OF
THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
DATED SEPTEMBER 23, 2003
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 02-12400-RWZ
JOHN BRENEMAN AND WILLIAM D. BRENEMAN
V.
UNITED STATES, EX REL. THE FEDERAL AVIATION
ADMINISTRATION, ET AL.
MEMORANDUM OF DECISION
September 23, 2003
ZOBEL, J.
Plaintiffs John and William Breneman own property
located in New Braintree, Massachusetts, which is adjacent
to the privately owned, public use Tanner Hiller Airport
(“Airport”). Most of the land is undeveloped. Between May
21, 1986, and October 17, 1988, Airport owner Leonard
Tanner (“Tanner”) hired A. Amorello & Sons, Inc.
(“Amorello”’) to remove gravel, stone walls, a fence, and a
hill from plaintiffs’ property in order to extend a runway.
Trees were also cleared and waste was buried thereon.
Plaintiffs discovered the alterations in August 1991 and
slightly more than a year later, commenced the first of a series
of legal and administrative actions for redress.
17a
Appendix B
On September 25, 1992, plaintiffs filed suit in state court
against Tanner who, in turn, impleaded Amorello as a third-
party defendant. Two years later, plaintiffs added Amorello
as a defendant. Plaintiffs alleged trespass, willful trespass to
trees in violation of state law, continuing trespass and damage _
to the land, conversion, negligence, and unfair and deceptive
trade practices. They sought damages, establishment of land
boundaries, an order demanding that defendant remove the
runway extension, and funds to remove the materials
defendants dumped onto plaintiffs’ property and to-return
the land to its original condition. The Worcester Superior
Court granted defendant Amorello’s Motion to Dismiss on
grounds that plaintiffs’ claims were barred by the statute of
limitations. Breneman v. Tanner, No. 922705, 1999 WL
1336436 (Mass. Super. Ct. Feb. 1, 1999). On October 21,
1999, the court allowed defendant Amorello’s Motion for
Summary Judgment as to Tanner’s contribution claim and
also allowed defendant Tanner’s Motion for Summary
Judgment as to all claims (except his counterclaim of adverse
possession) because they were time-barred. Breneman v.
Wolfson,' 10 Mass. L. Rptr. 634 (Mass. Super. Ct. 1999).
Plaintiffs’ appeal is pending. The parties subsequently
dismissed the adverse possession claim without prejudice.
Some time in December 1997, plaintiffs reported to the
Federal Aviation Administration (“FAA”) a discrepancy
between runway length as reported by the FAA in the Airport
Directory of the Airman’s Information Manual and as
measured by plaintiffs. The FAA acknowledged the
inaccurate runway measurement and apologized to the
plaintiffs on behalf of the Commonwealth of Massachusetts
1. John Wolfson is the executor of Leonard Tanner’s estate.
:
a
18a
Appendix B
Aeronautics Commission (““CMAC”). On May 18, 2000, FAA
published the 61st Edition of the New York Sectional Chart,
an aeronautical navigation chart for pilots showing the
extended runway. Subsequently, plaintiffs filed notices for
proposed reconstruction of the fence and hill on their
property. On February 15, 2001, FAA issued an Order in
Aeronautical Study, which determined that replacement of
the hill and fence would be hazardous to air navigation. Soon
thereafter, on April 9, 2001, plaintiffs appealed the FAA’s
dismissal of their petition for review of the Order to the
United States Court of Appeals for the District of Columbia
Circuit,. In an unpublished opinion, the court determined that
the plaintiffs lacked standing to challenge the FAA’s advisory
opinion concerning the resurrection of the fence. Although
the plaintiffs established standing to challenge the FAA’s
opinion concerning the replacement of the hill, the court
found that the determination was not arbitrary and capricious
and further, that plaintiffs “ran afoul of this court’s chutzpah
doctrine when they conceded at oral argument that they intend
to build the hill in part to impede air traffic at the Airport.”
Breneman v. Federal Aviation Administration, No. 01-1165,
Consolidated with 01-1166, 2002 U.S. App. LEXIS 4322,
at *7 (D.C. Cir. Feb. 26, 2002). Finally, the court found all
of plaintiffs’ other constitutional challenges to the FAA’s
determination concerning the hill to be meritless.
On September 13, 2001, plaintiffs returned to Worcester
Superior Court with a petition in equity seeking review of
the CMAC’s final decision which denied their request to
replace the hill on their property. After a hearing on plaintiffs’
Motion for Summary Judgment on September 16, 2002, the
court took the matter under advisement. According to the
19a
Appendix B
docket sheet submitted by plaintiffs, decision has not yet
been rendered. (P1.’s Response to August 12, 2003 Order at
Exh. C.).
Next, plaintiffs filed suit against the United States in
the Court of Federal Claims on December 13, 2002, claiming
inverse condemnation based on the actions of the FAA.
On August 6, 2003, the court denied the government’s Motion
to Dismiss, but granted its Motion for Summary Judgment,
and entered judgment for the United States. The court found
the FAA’s publication of the New York Sectional Chart
recognizing the extension of Tanner’s runway and its hazard
determinations based on plaintiffs’ plans to rebuild the fence
and hill did not constitute a Taking under the Fifth
Amendment. Breneman v. The United States, No. 02-1854
L, 2003 U.S. Claims LEXIS 234 (Fed. Cl. August 6, 2003).
On the same day that they initiated suit in the Court of
Federal Claims, plaintiffs filed a seven count Complaint in
this Court against the FAA, the CMAC, and the Airport.
Plaintiffs claim that the “final orders and regulation of the
FAA and CMAC in conjunction with the actions of the Tanner
Hiller Airport have appropriated the greater portion of the
plaintiffs’ property to the public without compensation.”
(Complaint at 2). They characterize the action as one seeking
“an injunction and invalidation of the actions of the FAA
[and] CMAC as well as compensation for the temporary use
of their property or in the alternative damages and
compensation for the inverse condemnation of their
property.” (Complaint at 4). Each defendant has filed a
Motion to Dismiss.
20a
Appendix B
Plaintiffs cannot sustain their claims against the Airport.
Count I fails because inverse condemnation is a cause of
action against a governmental entity and the Airport is
privately owned. United States v. Clark, 445 U.S. 253, 257,
100 S. Ct. 1127, 1130 (1980). To the extent that plaintiffs
are asserting claims against the Airport for trespass or
conversion, they are barred by the three-year statute of
limitations. Mass. Gen. Laws ch. 260, § 2A (actions of tort
and replevin must be commenced within three years after
the cause of action accrues).? Count II, entitled “Invalidation
of Government Action,” does not apply to the Airport.
Counts III and IV allege violation of and conspiracy to
violate 42 U.S.C. § 1983. Although the typical Section 1983
case is against a state actor, a Section 1983 claim is viable
against a private party if the plaintiff can show that the private
defendant had an agreement with a state actor to deprive
plaintiff of rights. Adickes v. S.H. Kress & Co., 398 U.S. 144,
151, 90 S. Ct. 1598, 1605 (1970). Here, plaintiffs contend
suppressing or concealing [and conspiring to suppress and
conceal] the date(s) and facts surrounding the illegal
extension of the runway at the Tanner Hiller Airport.”
(Complaint at 30). However, the alleged suppression is not a
2. In deciding plaintiffs’ state law claims, the Court exercises
its supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a), which
states that “in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
2la
Appendix B
violation of the Fifth Amendment; and, in any case, there is
no evidence that the Airport and the CMAC had such an
agreement. Furthermore, any concealment was highly
unlikely; the Massachusetts Superior Court noted that “while
it may not have been easy to initially discover buried tree
stumps, a plainly visible gravel hill and many trees were
openly leveled, placing the plaintiffs on notice.” Breneman
v. Tanner, No. 922705, 1999 WL 1336436 (Mass. Super. Ct.
Feb. 1, 1999).
In Count V, entitled “Use of Property,” plaintiffs contend
that the Airport used their property without authorization or
compensation, but does not specify the grounds on which
the claim is brought. If they are alleging a violation of Mass.
Gen. Laws ch. 131, § 40, they, as private parties, cannot sue.
Christoffels v. Alton Properties, Inc., 285 N.E.2d 453, 454
(Mass. 1972) (stating that Mass. Gen. Laws ch. 131, § 40
“protects only the public interest and confers no enforceable
rights on the plaintiffs.”).
Count VI alleges that the actions of the defendants
“constitute an appropriation and confusion of plaintiffs’
property with the Tanner Hiller Airport property by creating
the appearance that the approach surfaces, the primary surface
of the runway and other parts of Tanner Hiller Airport are
part of the [ ] “airport” when in reality this property belongs
to the plaintiffs.” (Complaint at 33-34.). Again, to the extent
that plaintiffs are claiming trespass, their claim is, as noted
earlier, barred by the three-year statute of limitations. Finally,
plaintiffs’ last claim to quiet title to the property and remove
the cloud from its title cannot be maintained “unless both
actual possession and the legal title are united in the plaintiff.”
22a
Appendix B
Daley v. Daley, 14 N.E.2d 113, 116 (Mass. 1938). Here,
plaintiffs do not have actual possession of the land in
controversy—the Airport does. Because plaintiffs cannot
_prevail on any of their claims against the Airport, the Airport’s
Motion to Dismiss is allowed.
Res judicata bars plaintiffs’ claims against the FAA. Res
judicata is a judicially constructed doctrine based on three
policy considerations: (1) avoiding the cost of multiple
lawsuits, (2) conserving judicial resources, and (3) preventing
inconsistent outcomes. Bay State HMO Management, Inc. v.
Tingley Systems, Inc., 181 F.3d 174, 181 (1st Cir. 1999).
“The doctrine of res judicata bars all parties and their privies
from relitigating issues which were raised or could have been
raised in a previous action, once a court has entered a final
judgment on the merits in the previous action.” Aunyx Corp.
v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir. 1992). There
are two aspects of res judicata—claim preclusion and
collateral estoppel. Grella v. Salem Five Cent Savings Bank,
42 F.3d 26, 30 (1st Cir. 1994). The elements of claim
preclusion are: “(1) a final judgment on the merits in an earlier
action; (2) an identity of parties or privies in the two suits;
and (3) an identity of the cause of action in both suits.” Jd.
The entry of a final judgment on the merits extinguishes
plaintiffs’ rights to pursue remedies as to the whole or part
of the transaction at issue in the complaint. Jsaac v. Schwariz,
706 F.2d 15, 16 (ist Cir. 1983).
Plaintiffs have already appealed the FAA’s decision to
the D.C. Circuit and brought the same claims against the
United States in the Court of Federal Claims resulting in
GROEN TPE POHL LEER NPE Ce Ee
23a
Appendix B
judgment for the defendant.’ Here, for the third time,
plaintiffs are seeking to invalidate the FAA’s determinations.
Plaintiffs cannot continue to file lawsuits until they obtain
the result they seek.
Finally, CMAC contends that plaintiffs’ suit against it is
barred by the Eleventh Amendment. “It is clear, of course,
that in the absence of consent a suit in which the State or one
of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment.” Pennhurst State
School & Hospital v. Halderman, 104 S. Ct. 900, 908, 465
U.S. 89, 100 (1984). This is true regardless of the nature of
the relief sought. /d. In their Complaint, plaintiffs state that
defendant CMAC “is an administrative agency of the
Commonwealth of Massachusetts and acts for the
Commonwealth of Massachusetts.” (Complaini at 6).
Because defendant CMAC has not consented to suit,
plaintiffs’ claims must be dismissed.
Accordingly, the Motions to Dismiss by the Airport, the
FAA, and the CMAC are ALLOWED. Judgment may be
entered dismissing the complaint with prejudice.
DATE RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE
3. The parties are the same in the two suits as recognized by
plaintiffs in their Complaint: “[t]he defendant, FAA, is an
administrative agency of the United States and acts for the United
States.” (Complaint at 6.).
24a
APPENDIX C — STIPULATION OF DISMISSAL
ENTERED IN WCYV 1992-2705
ENTERED ON APRIL 2, 2001
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS.
SUPERIOR COURT DEPARTMENT
of the TRIAL COURT
DOCKET NO. 92-2705
WILLIAM D. BRENEMAN and JOHN BRENEMAN
Plaintiffs
vs.
JOHN M. WOLFSON, EXECUTOR OF THE
ESTATE OF LEONARD TANNER
STIPULATION OF DISMISSAL
WITHOUT PREJUDICE
Now come the parties in the above-entitled matter and hereby
stipulate to the dismissal as to the Counterclaim for Adverse
Possession only, without prejudice.
William D. Breneman
and John Breneman,
By Their Attorney,
s/ James C. Donnelly
James C. Donnelly
BBO #129700
MIRICK O’CONNELL
100 Front Street
Worcester, MA 01608
(508) 791 8500
25a
Appendix C
RESPECTFULLY SUBMITTED,
John M. Wolfson, Executor
of the Estate of Leonard Tanner,
By His Attorney,
s/ Richard T. Tucker
Richard T. Tucker
BBO #503960
BERNSTEIN BURWICK
& TUCKER, LLC
._ 10 Mechanic Street
Worcester, MA 01608
(508) 755 5555
26a ’
APPENDIX D — CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
United States Constitution
Article I
Section 8. The Congress shall have
Power. . . ; To constitute Tribunals inferior to the
supreme Court;
oe * * *
United States Constitution
Article III
Section 1. The judicial Power of the United
States, shall be vested in one supreme Court, and
in such inferior Courts as the Congress may from
time to time ordain and establish.
SERB EAI ARB AINE ME TAG BALD A at anid
hat 8 Phere
*x* *« *
Section 2. The judicial Power shall extend
to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their
Authority; - to all Cases affecting Ambassadors,
other public Ministers and Consuls; - to all Cases
of admiralty and maritime Jurisdiction; - to
Controversies to which the United States shall be
a Party; - to Controversies between two or more
States; - between a State and Citizens of another
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27a
Appendix D
State; - between citizens of different States; -
between Citizens of the same State claiming Lands
under the Grants of different States, and between
a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.
* %*« %+* *
Title 49 United States Code, Section 40102(30)
‘Navigable airspace’ means airspace above the
minimum altitudes of flight prescribed by
regulations under this subpart and subpart III of
this part, including airspace needed to ensure
safety in the takeoff and landing of aircraft.
Title 49 United States Code, Section 40103(a)(1)
and (a)(2)
(a) Sovereignty and Public Right of Transit. —
(1) The United States Government has
exclusive sovereignty of airspace of the
United States.
(2) Acitizen of the United States has a public
right of transit through the navigable
airspace.
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28a
Appendix D
Title 49 United States Code, Section 46301(a)
CIVIL PENALTIES
(a) General penalty. (1) A person is liable to
the United States Government for a civil penalty
of not more than $1,000 for violating-
(A) chapter 401 [49 USCS §§ 40101 et seq.]
(except sections 40103(a) and (d), 40105,
40116, and 40117), chapter 411 [49 USCS
§§ 41101 et seq.], chapter 413 (except sections
41307 and 41310(b)-(f)), chapter 415 (except f
sections 41502, 41505, and 41507-41509),
chapter 417 (except sections 41703, 41704,
41710, 41713, and 41714), chapter 419 [49
USCS §§ 41901 et seq.], subchapter II or
III of chapter 421 [49 USCS §§ 42111 et seq.
or 42121], chapter 441 [49 USCS §§ 41101
et seq.] (except section 44109), 44502(b) or
(c), chapter 447 (except sections 44717 and
44719-44723), chapter 449 (except sections
44902, 44903(d), 44904, 44907(a)-(d)(1)(A)
and (d)(1)(C)-(f), and 44908), or section
47107(b) (including any assurance made under
‘such section) of this title;
(B) a regulation prescribed or order issued
under any provision to which clause (A) of
this paragraph applies;
29a
Appendix D
(C) any term of certificate or permit issued under
section 41102, 41103 or 41302 of this title; or
(D) a regulation of the United States Postal
Service under this part [49 USCS §§40101 et
seq. ].
(2) A person operating an aircraft for the
transportation of passengers or property for
compensation (except an airman serving as an
airman) is liable to the Government for a civil penalty
of not more than $10,000 for violating-
(3) A civil penalty of not more than $10,000 may
be imposed for each violation under paragraph (1)
of this subsection related to-
(A) the transportation of hazardous material;
(B) the registration or recordation under chapter
of 441 of this title [49 USCS §§ 44101 et seq.]
of an aircraft not used to provide air
transportation;
(C) a violation of section 44718(d), relating to
the limitation on construction or establishment
of landfills;
(D) a violation of section 44725, relating to the
safe disposal of life-limited aircraft parts; or
(E) a violation of section 41705, relating to
discrimination against handicapped individuals.
30a
Appendix D
Title 49 United States Code, Section 46316 General |
criminal penalty when specific penalty not provided
(a) Criminal penalty. Except as provided by
subsection(b) of this section, when another
criminal penalty is not provided under this chapter
[49 USCS §§ 46301 et seq.], a person that
knowingly and willfully violates this part
[49 USCS §§ 40101 et seq.], a regulation
prescribed or order issued by the Secretary of
Transportation (or the Under Secretary of
Transportation for Security with respect to
security duties and powers designated to be carried
out by the Under Secretary or the Administrator
of the Federal Aviation Administration with
respect to aviation safety duties and powers
designated to be carried out by the Administrator)
under this part [49 USCS §§ 40101 et seq.], or
any term of a certificate or permit issued under
section 41102, 41103, or 41302 of this title shall
be fined under title 18. A separate violation occurs
for each day the violation continues.
(b) Nonapplication. Subsection (a) of this
section does not apply to chapter 401 [49 USCS
§§ 40101 et seq.] (except sections 40103(a) and
(d), 40105, 40116, and 40117), chapter 441 [49
USCS §§ 44101 et seq.] (except section 44109),
chapter 445 [49 USCS §§ 44501 et seq.], chapter
447 [49 USCS §§ 44701 et seq.] (except section
44718(a)), and chapter 449 [49 USCS §§ 44901
et seq.] (except sections 44902, 44903(d), 44904,
and 44907-44909) of this title.
3la
Appendix D
Title 49 United States Code, Section 44718
Structures interfering with air commerce
(a) Notice. - By regulation or by order when
necessary, the Secretary of Transportation shall
require a person to give adequate public notice, in
the form and way the Secretary prescribes, of the
construction, alteration, establishment, or expansion,
- or the proposed construction, alteration,
establishment, or expansion, ofa structure or sanitary
landfill when the notice will promote -
(1) safety in air commerce; and
(2) the efficient use and preservation of the
navigable airspace and of airport traffic capacity
at public-use airports.
(b) Studies. - (1) Under regulations prescribed by
the Secretary, if the Secretary decides that
constructing or altering a structure may result in an
obstruction of the navigable airspace or an
interference with air navigation facilities and
equipment or the navigable airspace, the Secretary
shall conduct an aeronautical study to decide the
extent of any adverse impact on the safe and efficient
use of the airspace, facilities, or equipment. In
conducting the study, the Secretary shall consider
factors relevant to the efficient and effective use of
the navigable airspace, including -
322
Appendix D
(A) the impact on arrival, departure, and
en route procedures for aircraft operating
under visual flight rules;
(B) the impact on arrival, departure, and
en route procedures for aircraft operating
under instrument flight rules;
(C) the impact on existing public-use
airports and aeronautical facilities;
(D) the impact on planned public-use
airports and aeronautical facilities; and
(E) the cumulative impact resulting from
the proposed construction or alteration of
a structure when combined with the impact
of other existing or proposed structures.
(2) On completing the study, the Secretary
shall issue a report disclosing completely the
extent of the adverse impact on the safe and
efficient use of the navigable airspace that the
Secretary finds will result from constructing
or altering the structure.
(c) Broadcast Applications and Tower Studies. -
In carrying out laws related to a broadcast
application and conducting an aeronautical study
related to broadcast towers, the Administrator of
the Federal Aviation Administration and the
Federal Communications Commission shall take
action necessary to coordinate efficiently -
33a
Appendix D
(1) the receipt and consideration of, and
action on, the application; and
(2) the completion of any associated
aeronautical study.
(d) Limitation on Construction of Landfills. —
(1) In general. - No person shall construct or
establish a municipal solid waste landfill (as
defined in section 258.2 of title 40, Code of
Federal Regulations, as in effect on the date
of the enactment of this subsection) that
receives putrescible waste (as defined in
section 257.3-8 of such title) within 6 miles
of a public airport that has received grants
under chapter 471 and is primarily served by
general aviation aircraft and regularly
scheduled flights of aircraft designed for 60
passengers or less unless the State aviation
- agency of the State in which the airport is
located requests that the Administrator of the
Federal Aviation Administration exempt the
landfill from the application of this subsection
and the Administrator determines that such
exemption would have no adverse impact on
aviation safety.
(2) Limitation on applicability. — Paragraph
(1) shall not apply in the State of Alaska and
shall not apply to the construction,
establishment, expansion, or modification of,
34a
Appendix D
or to any other activity undertaken with respect
to, a municipal solid waste landfill if the
construction or establishment of the landfill
was commenced on or before the date of the
enactment of this subsection.
Title 28 United States Code, Section 2409a.
Real property quiet title actions
(a) The United States may be named as a party
defendant in a civil action under this section to
adjudicate a disputed title to real property in which
the United States claims an interest, other than a
security interest or water rights. This section does
not apply to trust or restricted Indian lands, nor
does it apply to or affect actions which may be or
could have been brought under sections 1346,
1347, 1491, or 2410 of this title, sections 7424,
7425, or 7426 of the Internal Revenue Code of
1986, as amended (26 U.S.C. 7424, 7425, and
7426), or section 208 of the Act of July 10, 1952
(43 U.S.C. 666).
(b) The United States shall not be disturbed in
possession or control of any real property involved
in any action under this section pending a final
judgment or decree, the conclusion of any appeal
therefrom, and sixty days; and if the final
determination shall be adverse to the United
States, the United States nevertheless may retain
such possession or control of the real property or
of any part thereof as it may elect, upon payment
35a
Appendix D
to the person determined to be entitled thereto of
an amount which upon such election the district
court in the same action shall determine to be just
compensation for such possession or control.
* * *
(e) If the United States disclaims all interest in
the real property or interest therein adverse to the
plaintiff at any time prior to the actual
commencement of the trial, which disclaimer is
confirmed by order of the court, the jurisdiction
of the district court shall cease unless it has
jurisdiction of the civil action or suit on ground
other than and independent of the authority
_conferred by section 1346(f) of this title.
(f) Acivil action against the United States under
this section shall be tried by the court without a
jury.
(g) Any civil action under this section, except for
an action brought by a State, shall be barred unless
it is commenced within twelve years of the date
upon which it accrued. Such action shall be
deemed to have accrued on the date the plaintiff
or his predecessor in interest knew or should have
known of the claim of the United States.
36a
Appendix D
Title 28 United States Code, Section 1346.
United States as defendant
(a) The district courts shall have original
jurisdiction, concurrent with the United States Court
of Federal Claims, of:
(2) Any other civil action or claim against the
United States, not exceeding $10,000 in
amount, founded either upon the Constitution,
or any Act of Congress, or any regulation of an
executive department, or upon any express or
implied contract with the United States, or for
liquidated or unliquidated damages in cases not
sounding in tort, except that the district courts
shall not have jurisdiction of any civil action
or claim against the United States founded upon
any express or implied contract with the United
States or for liquidated or unliquidated damages
in cases not sounding in tort which are subject
to sections 8(g)(1) and 10(a)(1) of the Contract
Disputes Act of 1978. For the purpose of this
paragraph, an express or implied contract with
the Army and Air Force Exchange Service,
Navy Exchanges, Marine Corps Exchanges,
Coast Guard Exchanges, or Exchange-Councils
of the National Aeronautics and Space
Administration shall be considered an express
or implied contract with the United States.
* * *
37a
Appendix D
(f) The district courts shall have exclusive
original jurisdiction of civil actions under section
2402a to quiet title to an estate or interest in real
property in which an interest is claimed by the
United States.
Massachusetts General Laws Chapter 90 Section 35B
Approach Protection
No person shall erect or add to the height of any
structure within a rectangular area lying fifteen
hundred feet on either side of the extended center
line of a runway or landing strip of an airport
approved by the commission for a distance of two
miles from the end of such runway or landing strip
so that the height thereof will be more than one
hundred and fifty feet above the level of such
runway or landing strip, nor, within that portion
of such area which is within a distance of three
thousand feet from the end of such runway or
landing strip, so that the height thereof will be
greater than a height above the level of such
runway or landing strip determined by the ratio
of one foot vertically to every twenty feet
horizontally measured from the end of such
runway or landing strip, unless a permit therefor
has been granted by the commission.
38a
Appendix D
The provisions of this section shall not apply
(1) to areas subject to airport approach regulations
adopted pursuant to sections forty A to forty I,
inclusive, (2) to air approaches to the General
Edward Lawrence Logan International Airport,
nor (3) to structures which will be thirty feet or
less in height above ground.
Massachusetts General Laws Chapter 90 Section 44
Penalties
Any person failing to comply with any
requirement, or violating any provision, of
sections thirty-five to fifty-two, inclusive, or the
rules and regulations for the enforcement of said
sections made by the commission, or airport
approach regulations made by a city or town under
section forty A, and in full force and effect, shall
be punished by a fine of not less than ten nor more
than five hundred dollars, or by imprisonment for
not less than one month nor more than six months,
or both. Whoever operates an aircraft while under
the influence of intoxicating liquor shall be
punished by imprisonment for not less than one
month nor more than two years.
39a
Appendix D
Airport Design Advisory Circular 150/5300-13
(6) 4 CFR Part 77 Obstructions to Air Navigation.
Obstructions to air navigation must be removed
unless an FAA aeronautical study, based on
proposed operations, determined otherwise...
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.