Opposition Brief — Walker Louisiana Properties v. Broussard

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No. 02-0960 oil FilLk&

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Supreme Court of the Anited States

WALKER LOUISIANA PROPERTIES, J. ORAN

RICHARD AND GAME MANAGEMENT, INC.,

Petitioners,

v.

STEVEN BROUSSARD,

Respondent.

*

On Petition For Writ Of Certiorari

To The Court Of Appeal, Third Circuit,

State Of Louisiana

STEVEN BROUSSARD’S RESPONSE TO

PETITION FOR A WRIT OF CERTIORARI

*

STEVEN BROUSSARD RANDALL E. HART*

1301 Common Street 1301 Common Street

Lake Charles, LA 70601 Lake Charles, LA 70601

Telephone: 337/439-2450 Telephone: 337/439-2450

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

The Trial Court found Steven Broussard, Respondent,

purchased property in Southwest Louisiana with a pri-

mary motivation of waterfowl (ducks and geese) hunting.

The Trial Court noted the property was well suited ‘or

that purpose. The Trial Court found helicopters under the

control of Petitioners at times flew excessively low over

Broussard’s property, thereby scaring off waterfowl. The

Court found the low helicopter flights served no legitimate

purpose. The Court found the low flying helicopters’

disturbance and harassment of waterfowl to be a violation

of both federal and state law. The Court found there was

nothing peculiar about the location of Broussard’s property

that would cause or require Petitioners’ helicopters to fly

over Broussard’s property at any time. The Court found

the low flying helicopters unnecessarily interfered with

Broussard’s right to use and enjoy his property. The Court

first issued a temporary restraining order requiring

Petitioners’ helicopters fly at a minimum altitude of 1,000

feet over Broussard’s property during waterfowl season.

After a Merits Trial, a permanent injunction was issued

with the added provision that the helicopters may fly at an

altitude under 1,000 feet so long as they are within one-

eighth mile of Broussard’s northern property line. During

the Merits Trial, the Court found Petitioners twice vio-

lated the temporary restraining order. (App. 11-12.) (All

Appendix references are to the Petitioners’ Appendix.)

Broussard’s right to seek damages for these violations was

reserved. (V. 3, p. 585, ll. 16-20.)

il

QUESTION PRESENTED —- Continued

Petitioners frame their question in terms of whether

or not a State Court has authority and jurisdiction to

regulate the use of navigable airspace where no violations

.of FAA regulations are involved. Throughout their Petition

for Writ of Certiorari, Petitioners take the position federal

-law completely and entirely preempts any right of the

states to exercise any jurisdiction in connection with

matters involving navigable airspace.

Respondent contends there is in fact no complete

preemption, and the Question Presented should be:

Given this Court has recognized both federal and

state takings claims’ for otherwise legal low over-

flights, does a State Court have jurisdiction to is-

sue an injunction enjoining a single operator

from flying his helicopter(s) at excessively low al-

titudes for no legitimate purpose other than scar-

ing off waterfowl and thereby interfering with a

landowner’s right to use and enjoy his property?

* United States v. Causby, 328 U.S. 256 (1946) and Griggs uv.

County of Allegheny, Pennsylvania, 369 U.S. 84 (1962).

ili

TABLE OF CONTENTS

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REASONS TO DENY THE WRIT............. eee

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PUMMEAEE OF ARGUMENT..........ccccccrrrscccrscccsresesee

ARGUMENT AND AUTHORITIES ..........0. ee.

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TABLE OF AUTHORITIES

Page

CASES

American Airlines, Inc. v. Town of Hempstead, 398

ee CE GA RI icisinoneerierianivenibimaniennes 14

American Airlines, Inc. v. Wolens, 513 U.S. 219

SE IIITIN adios cviceii sehen alycibintiecnesmncsiecaetadpucasal sauesecaamnecaminiiei 15

Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir.

SNE isansiccnpbcateaeinasstindncahbuidchiasiebadcaudlbalchiisasentiisiaieniaaeaduancaiines 13

Brenteson Wholesale, Inc. v. Arizona Public Service

Company, 166 Ariz. 519, 803 P.2d 930 (Az. App.

PU iichsdinsheseoos dia elcacanhdeepionseliaanatiehs abasadevlaiadadinaadcunieeduihe 22

Chrissafis v. Continental Airlines, Inc., 940 F.Supp.

Re Sie ess cbnanulnneinicncteoraseaiunitimnencaietteceais 15

City of Austin v. Travis County Landfill Company,

mG My FE bE Ps & | NNN 21

City of Burbank v. Lockheed Air Terminal Inc., 411

a Oe Cian eiseia-chsdincakeien ricdesietbentebitiensiiibiapbisakans 13

Connick v. Lucky Pierre’s, 331 So.2d 431 (La. 1976)......... 20

Erie Municipal Airport Authority v. Agostini, 127

Pa.Cmwilth. 360, 561 A.2d 1281 (1989)... ee 22

Griggs v. County of Allegheny, Pennsylvania, 369

Ge EM kckinishalnchcvnncietansentdisiedniaiinuiininlondes 1, 2, 10, 20, 23

Hughes v. Muckelroy, 97-0618 (La. App. Ist Cir.

Te, PH MANE THUD dnectetactesinsrernnrnaceienceheeinaisiciieninnetuet 20

Luedtke v. County of Milwaukee, 521 F.2d 387 (7th

Sl PPR csneshiviinscnannvienicanensoabiiniavesinsdesinipiteadiniptidebinnioniits

Morales v. Trans World Airlines, Inc., 504 U.S. 374

SII 1.41: vieclcscouirinasiec anol sean comaaaencdaaiancruacaneeancsa deans

TABLE OF AUTHORITIES - Continued

Page

Palm v. United States, Bartleson v. United States,

Jones v. United States and Palm v. United States,

835 F.Supp. 512 (U.S. Dist. Ct. N.D. CA 1999).............. 22

Peterson v. Continental Airlines, Inc., 970 F.Supp.

Oe ie Fee ee ET Rcittiinreisnnsnisniseundigdeiataitogenih na 15, 25

Smith v. United Airlines, No. 00 C 503 73, 2002 WL

31296902 (ND. Til. Oct. 3, ZOOB) ........sscseccocccssessessessesees 21

Smith v. W. Virginia Oil & Gas Co., 365 So.2d 269

(7h; BOTS Ce Stee witness eenaneeion 20

Swetland v. Curtiss Airports Corp., 55 F.2d 201 (6th

CAA. FI sicnsiecaccnticacouiecuicsuinnesenstes nsiathsaetekhaidaamianaasaania aise 22

Town of East Haven v. Eastern Airlines, Inc., 470

ee OA CRE GRE See kitiinceccsienenietinehaeioin 21

United States v. Causby, 328 U.S. 256 (1946)........... passim

Vorhees v. Naper Aero Club, Inc., 272 F.3d 398 (7th

RFE TEP ivcaisiatintnsesinsnsieansesansilapaniersociemnaian 10, 12

CONSTITUTION, STATUTES, RULES

Air Commerce Act of 1926, § 10, 49 U.S.C.A. § 180.......... 17

Airline Deregulation Act of 1978, (Preemption

Clause) Federal Aviation Act of 1958, § 105(a)(1),

as amended, 49 App. U.S.C.A. § 1305(a)(1)....0.............. 15

Civil Aeronautics Act of 1938, § 1, 49 U.S.C.A. § 401 ....... 17

Federal Aviation Act Savings Clause, § 1106, 49

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TABLE OF AUTHORITIES -— Continued

Page

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REASONS TO DENY THE WRIT

Petitioners’ Application takes issue with factual

findings of the Trial Court. Petitioners’ Statement of the

Case at pages 2-3 of their Application contend Richard

must fly low over Broussard’s property to make a safe

landing approach, however, the Trial Court found no

legitmate purpose for the excessively low flights and found

there was nothing about the location of Broussard’s

property that required Richard to fly over it. (App. 11-12.)

Next, Petitioners claim helicopters do not scare waterfowl

or in any way adversely affect hunting, which is contrary

to the Trial Court’s finding that the low flying helicopters

serve no legitimate purpose other than to scare and harass

waterfowl. (App. 11-12.)

The two factual issues raised by Petitioners are not

only at the heart of this case, but necessarily mean Peti-

tioners disagree with the trial court’s finding that the low

flying helicopter interferes with Broussard’s right to use

and enjoy his property. The Trial Court found Broussard’s

right to use and enjoy his property was disturbed by the

excessively low flying helicopters. (App. 12.)

This Court does not normally exercise its Writ power

where factual disputes are involved.

Further, this Court has clearly recognized the right of

a property owner to pursue a taking claim, federal or

state, for damages caused by low flying aircraft even when

the flights are otherwise legal.” The FAA Savings

* United States v. Causby, 328 U.S. 256 (1946) and Griggs v.

County of Allegheny, Pennsylvania, 369 U.S. 84 (1962).

2

Clause’ reserves existing civil remedies to claimants. It is

reasonable to allow injunctive relief under the limited

circumstances of this case where the excessively low

helicopter flights serve no legitimate purpose other than to

scare and harass waterfowl (App. 11-12.) The injunction in

no way affects interstate commerce, air travel, airline

routes, fares or services. It certainly does not affect Peti-

tioners’ right to use Richard’s helicopters for legitimate

purposes.

Broussard filed a Third Supplemental and Amending

Reconventional Demand‘ and alleged:

“19(a).

As a result of J.O. Richard’s actions in flying

his helicopters over Steven Broussard’s property

and scaring waterfowl, Steven Broussard has

suffered loss of enjoyment of his property, mental

anguish and inconvenience and is entitled to

damages therefor.”

The parties agreed the damage claim would be tried in

a subsequent trial/hearing.°

Petitioners’ Application does not address Broussard’s

claim for tort damages, but it is clearly authorized by this

Court’s decision in Griggs, supra.

* § 1106 of the Federal Aviation Act, 49 U.S.C., App. § 1506.

* Trial Record, V. 1, p. 104.

* V3, p. 58, Il. 16-20.

3

It is respectfully submitted there is nothing about the

facts of this case that warrant an exercise of this Court’s

Writ power.

ry

-

STATEMENT OF THE CASE

Broussard purchased approximately 2,000 acres of

land in Southwest Louisiana in 1993. (V. 3, p. 570, ll. 3-5

and Spec. Warr. Deed, V. 2, pp. 377-384.) Shortly after

Broussard’s purchase of the property, he began experienc-

ing problems with Richard’s helicopters flying excessively

low over his property and scaring off waterfowl. (V. 3, p.

570, 1. 3, p. 571, 1. 13.) Within months after Broussard’s

purchase of the property, he complained in writing to

Richard about the low flying helicopters scaring off water-

fowl and resulting in complaints from hunters leasing

duck/goose blinds from Broussard. (Broussard’s 6/17/94

letter, v. 2, p. 356.) Broussard again complained in writing

to Richard about the low flying helicopters by letter dated

November 20, 1997. (V. 2, p. 339.) The low flying helicop-

ters were an ongoing problem until Richard agreed as part

of a 1999 Road Use Agreement to voluntarily restrict his

helicopter flights over Broussard’s property. (V. 2, pp. 353-

355 and pp. 476-477.) In the agreement, Richard agreed

not to fly over Broussard’s property during hunting season

at altitudes under 1,000 feet. (Interestingly, Richard’s

agreement not to fly his helicopters under 1,000 feet

during hunting season comports precisely with the injunc-

tion of which Richard now complains.)

In the Road Use Agreement, Broussard gave Richard

permission to use roads on Broussard’s property in order

to access adjacent land Richard leased for hunting. Part of

4

the Road Use Agreement required Richard provide road

maintenance. Richard refused to provide road mainte-

mance as required in the agreement. Broussard com-

plained in writing and orally to Richard regarding

Richard’s failure to provide road maintenance. Finally,

after two years’ of complaining to no avail, Broussard

terminated Richard’s road use by locking the gates in

January, 1999. (V. 2, p. 423, ll. 4-9 and Broussard’s letter,

p. 295.)

Once Broussard denied Richard access across his

property, the problem with the low flying helicopters soon

returned. (Broussard’s letter, V. 2, p. 279.)

Nathan Wright, a commercial hunter who leased a

hunting blind from Broussard, testified as to having seen

Richard’s helicopters fly low over Broussard’s property

many times. Wright testified the helicopters appeared to

be flying in such a manner as to drive or scare waterfowl

off of Broussard’s property with the obvious hope they

would go to Richard’s neighboring property. (V. 3, p. 563, 1.

19 — p. 566, 1. 8.)

Petitioners’ Application at page 2, paragraph 1, states:

“Petitioners must fly reasonably low over the Respondent’s

adjacent property to make a safe approach to land.” The

Trial Court found otherwise, wherein it stated: “There is

nothing peculiar about the location of Broussard’s property

that would cause or require Richard’s helicopters to fly

over Broussard’s property at any time.” (App. 12.) Peti-

tioners’ statement must also be weighed against the fact

* Richard was orally allowed to use the road before execution of the

Road Use Agreement provided he provided road maintenance.

5

that Richard voluntarily agreed in the Road Use Agreement

to restrict his helicopters to a minimum altitude of 1,000 feet

during waterfowl season. Richard abided by the voluntary

restrictions until Broussard changed the locks on his road

gates because Richard refused to maintain the roads.

At page 3 of his Application, footnote 1, Petitioners

state “The overwhelming weight of the testimony indi-

cated that the helicopters did not unduly frighten the

waterfowl or in anyway adversely affect hunting on the

property.” Again, Petitioners are arguing the Trial Court

abused its discretion in making a factual finding. The Trial

Court specifically found “Helicopters, especially low flying

ones, are particularly noisy and scare waterfowl to an

extent that it can cause them to leave an area. The low

flying helicopter flights serve no legitimate purpose and

resulted in waterfowl being unnecessarily scared off

Broussard’s property.” (App. 11.) Because Petitioners are

contesting an important factual finding of the Trial Court,

Respondent cites the following testimony which supports

the Trial Court’s factual finding, to-wit: Nathan Wright (V.

3, p. 563, 1. 19 — p. 565, 1. 25), Steven Broussard (V. 3, p.

569, 1. 20 — p. 570, 1. 32; p. 583, 1. 16 — p. 584, 1. 2), and

Max Caldarera (V. 3, p. 511, l. 23 — p. 512, 1. 12; p. 520, 1.

25 — p. 522, 1. 5.) Even Richard agreed his helicopters

make a lot of noise and scare ducks and geese off the water

and ground. (V. 2, p. 487, 1. 13 — p. 490, 1. 12.) Richard even

admitted geese are more sensitive to the noise of a helicop-

ter than ducks. (V. 3, p. 651, 1. 29 — p. 652, 1. 9.) Even

Richard’s witness, David Richard, agreed he would rather

hunt a blind that did not have helicopter traffic over it. (V.

3, p. 612, ll. 9-28.) Jay Duhon (V. 3, p. 525, 1. 17 — p. 526, 1.

31.) Donald Vines, a witness for Richard, agreed helicop-

ters scare waterfowl when flying at altitudes between 100

6

and 150 feet. (V. 3, p. 595, ll. 27-32.) Chad Thieland, a

witness for Richard, has seen helicopters scare waterfowl

from one property to another. (V. 3, p. 601, 1. 6 — p. 602, 1.

7.)

At Trial, Richard acknowledged the U.S. Fish and

Wildlife Service prohibits helicopters from flying over

game reserves at altitudes under 1,000 feet. (V. 2, p. 482.)

The reason, because low flying helicopters scare wildlife.

The Trial Court found Richard had in fact violated the

temporary restraining order on at least two occasions.

(App. 12.) As noted by the Court, one of the violations was

videotaped. The videotape was introduced into evidence.

The following two photographs are still shots from the

videotape.

%

DUCKS

Photo No. 2

In photograph number 1, the helicopter is seen to be

flying just above the surrounding trees. While it is difficult

to clearly capture the image of ducks in a still shot from a

videotape, photograph number 2 depicts ducks flying up

around Richard’s helicopter. The ducks are much more

easily identified in the actual videotape. Even Richard

admitted he scarred up a lot of ducks as shown in the

video. (V. 3, p. 628, ll. 12-15.)

Petitioners’ Application, at page 3, paragraph 2, states

the waterfowl “is not Mr. Broussard’s property.” It is not

clear whether or not Petitioners are arguing this gives

Richard the right to harass and scare the waterfowl off

without regard to any potential consequence. If this is

Petitioners’ position, then they must acknowledge Rich-

ard’s actions are a violation of Louisiana and federal law

as found by the Trial Court. (App. 12.) LA. R.S. 56:648.1

provides in applicable part:

“No person shall...:

(1) Interfere with the lawful taking of a wild

animal by a hunter, trapper, or fisherman or in-

terfere with the process of taking, with intent to

prevent the taking.

(2) Disturb a wild animal....”

50 C.F.R. § 19.11(A)(2) provides “ ... no person shall

use an aircraft to harass any wildlife.”

It would defy logic to contend Broussard’s right to use

and enjoy his property does not include the benefits flowing

from wintering waterfowl that frequent his property.

At page 3 of Petitioners’ Application, the last sentence

of footnote 1 states “Mr. Broussard, however, felt that ‘if

you scare one bird away, its adverse.’” Petitioners have

9

attempted to take part of a statement out of context in

order to support his position. Following is the complete

response from which Petitioners quote only part:

It has scared birds off. I mean, the whole - the

whole idea of hunting — I guess you — I taken

some things to their extreme. If I wanted to go

hunt — if you could get a lease at a airport right

where there’s a lot of air traffic and everything,

you'd have a terrible hunting place. Well, I got as

far away from that as I could. I got a very remote

piece of property that’s suitable for waterfowl

hunting, and some of the birds are being scared

away. Now, not all of them, obviously, but I say if

you scare one bird away, it’s adverse. But, I

mean, I’m not talking about one bird. I’m ta'king

about lots of birds. (V. 3, p. 182, ll. 16-28.) (em-

phasis added.)

se

v

SUMMARY OF ARGUMENT

At issue is whether a State Court has jurisdiction to

enjoin low flying helicopters that serve no egitimate

purpose other than to harass and scare waterfowl. Peti-

tioners argue the State Court’s actions are in direct

conflict with federal law and FAA regulations and, there-

fore, are invalid due to preemption. Petitioners contend

federal law completely preempts state law regarding

navigable airspace, control of aircraft in flight, noise

control and aviation routes.

Petitioners, at page 22, footnote 8, of their Application

states since Richard did not violate any FAA regulations,

any complaint by Respondent to the FAA would have been

unavailing. Respondent agrees, which is the reason he did

10

not seek relief pursuant to the administrative procedures

of the FAA.

Essentially, Petitioners take the position since Rich-

ard was not in violation of any FAA regulations, the law

offers no remedy whatsoever to Broussard for the loss of

the use and enjoyment of his property.

Contrary to Petitioners’ arguments, the Federal

Aviation Act does not expressly preempt state damage

remedies. To the contrary, § 1106 of the Federal Aviation

Act, 49 U.S.C. App. § 1506, provides: “[nJothing contained

in this chapter shall in any way abridge or alter the

remedies now existing at common law or by statute, but

the provisions of this chapter are in addition to such

remedies.”

In Vorhees v. Naper Aero Club, Inc., 272 F.3d 398 (7th

Cir. 2001), the Court found “ ... the Federal Aviation Act

has no civil enforcement provision or any provision allow-

ing a private resident to sue for the property torts of an

airline pilot or airport operator. This is seemingly fatal to

a claim of complete preemption.” (Citations omitted.)

This Court in Causby, supra, and Griggs, supra,

recognized the validity of both federal and state takings

claims in connection with low overflights.

In the case at hand, we are dealing with a single

operator of helicopters who was found to be flying his

helicopters at excessively low altitudes for no legitimate

purpose other than to scare off waterfowl. There is no

airport involvement. The involved area is rural. There is

no burden on interstate commerce. Richard was not

11

required to change his route of flight, but to merely main-

tain a minimum altitude of 1,000 feet during waterfowl

season if he chose to fly over Broussard’s property.

As noted by Petitioners, there is no FAA regulation

prescribing a minimum altitude for helicopter flight, but

certainly that does not mean a helicopter can be flown

excessively low for no legitimate purpose other than to

scare waterfowl. The Fifth Amendment of the United

States Constitution affords Respondent the right not to be

deprived of his property, which certainly includes its use

and enjoyment. When you weigh the competing interest of

Petitioners and Respondent, it seems the right of Brous-

sard to use and enjoy his property would outweigh any

right Richard has to fly his helicopters at excessively low

altitudes so as to unnecessarily scare and harass water-

fowl.

There is no complete preemption as argued by Peti-

tioners. Petitioners’ tortuous interference with Respon-

dent’s right to use and enjoy his property is sufficient for a

State Court to invoke its powers of injunctive relief under

the limited facts of this case. Respondent’s claim for tort

damages is still pending. (V. 1, p. 104 and V. 3, p. 58, ll. 16-

20.)

Sd

12

ARGUMENT AND AUTHORITIES

FAA REGULATIONS PROVIDED

NO REMEDY FOR BROUSSARD

While Petitioners argue throughout their Application

Respondent should have filed an administrative complaint

with the FAA,’ Petitioners, at page 22 of their Application,

footnote 8, acknowledge any complaint to the FAA would

have been unavailing because the record did not contain

any evidence Richard violated any FAA regulation. In fact,

even a violation of FAA regulations would afford Brous-

sard no recourse through the FAA because FAA regula-

tions provide no private right of action for land owners.”

Since the FAA provides no recourse for a landowner

such as Broussard, the question then becomes “Is other

recourse available?”

THERE IS NO COMPLETE PREEMPTION OF

STATE REGULATION OF AIRCRAFT NOISE

Beginning at page 15 of his Application, Petitioners

argue there can be no state regulation as concerns aircraft

noise because the field has been entirely preempted by

federal legislation and regulations.

First, the Trial Court in this matter did not order

Richard to alter his route of flight, but instead ordered all

flights over Broussard’s property during waterfowl season

” See Petitioners’ Application, pp. 6, 22 and 23.

* See Vorhees, supra, at 404.

13

be at altitudes of 1,000 feet or greater unless conducted

within one eighth of a mile of Broussard’s northern bound-

ary. Specifically, the Trial Court did not order Richard to

somehow reduce the noise emitted by his helicopter or

change his route or times of flight.

Petitioners, in support of their argument, cites this

Court’s decision in City of Burbank v. Lockheed Air Termi-

nal Inc., 411 U.S. 624 (1973); there were four dissents.

This Court’s decision in City of Burbank has not been read

by other Courts as requiring complete preemption of all

common-law remedies for aircraft noise, e.g., see Biene-

man v. City of Chicago, 864 F.2d 463 (7th Cir. 1988),

wherein the Court stated at 472 of its opinion “We over-

rule Luedtke’ to the extent it holds all common law reme-

dies for airport noise and pollution have been preempted

by federal law.” The City of Burbank case involved an

ordinance enacted by the City of Burbank forbidding

departures of jet aircraft from a privately-owned airport

between 11 p.m. and 7 a.m. This Court noted such curfews

could result in increased congestion, cause a loss of effi-

ciency and aggravate the noise problem. The Court noted

the ordinance amounted to a regulation that could effect

the FAA’s entire scheme of regulating air traffic. In the

case sub judice, no such potential exists. This case involves

limited and peculiar circumstances. There is only one

operator involved, the injunction is directed at no one

other than Richard, the injunction does not require Rich-

ard to change routes or hours of flight, but only limits his

* Luedtke v. County of Milwaukee, 521 F.2d 387 (7th Cir. 1975).

14

flights to a minimum altitude of 1,000 feet while over

Broussard’s property during waterfowl] season.

Petitioners, at page 15 of their Application, also cite

the case of American Airlines, Inc. v. Town of Hempstead,

398 F.2d 369 (2nd Cir. 1968) in support of their argument

for total federal preemption of aircraft noise control.

Contrary to Petitioners’ argument, the Town of Hempstead

case does not support an argument for total preemption.

Hempstead passed an Unnecessary Noise Ordinance

seeking to limit operation of certain aircraft within the

Town. Compliance with the ordinance would require many

aircraft to fly into and out of John F Kennedy Airport in

patterns that would be in large part incompatible with

existing traffic patterns and FAA procedures. The Court

agreed the ordinance was in direct conflict with valid

applicable federal regulation and, therefore, invalid based

on federal preemption. However, the Court noted at page

369, footnote 4, “But the problem arises that it is this

particular noise ordinance in this particular setting which

is found to regulate flight paths and procedures; another

noise ordinance might not have that effect.” (emphasis

added.) In the case sub judice, the injunction does not seek

to regulate “flight paths or procedures.”

THE AIRLINE DEREGULATION ACT (ADD)

DOES NOT PREEMPT RESPONDENT'S

STATE LAW REMEDIES

Beginning at page 16 of his Application, Petitioners

argue the Airline Deregulation Act of 1978 preempts any

claim Respondent may have under state law.

This Court held in Morales v. Trans World Airlines,

Inc., 504 U.S. 374 (1992), “... A state enforcement action

15

is preempted if it has a connection with, or reference to

airline ‘rates, routes, or services.’” In the case sub judice,

the complained of injunction in no way purports to regu-

late or has any connection with “airline rates, routes, or

services.”

In American Airlines, Inc. v. Wolens, 513 U.S. 219

(1995), this Court at page 232 of the opinion, found the

ADA does not preempt all state-law-based claims. The

Court noted the FAA’s saving clause, § 1106, 49 U.S.C.

App. § 1506 (preserving “the remedies now existing at

common law or by statute”), when read together with the

ADA’s preemption clause, § 1305(a)(1), stops states from

imposing their own substantive standards with respect to

rates, routes, or services, but not from affording relief to a

party who claims and proves an airline dishonored a term

the airline itself stipulated. Again, in the case sub judice,

there is no state action with respect to rates, routes, or

services.

In Peterson v. Continental Airlines, Inc., 970 F.Supp.

246 (S.D. N.Y. 1997), the Court held there is no preemp-

tion where a state law’s impact on an air carrier’s services

is tenuous, remote, or peripheral. The Court further noted

the ADA does not preempt claims for outrageous conduct

that goes beyond the scope of normal aircraft operations.

For claims to be preempted by the ADA, two things

must be true: (1) the claim must derive from enactment or

enforcement of state law, and (2) the claim must relate to

airline rates, routes, or services either by expressly refer-

ring to them or by having a significant economic effect

upon them. See Chrissafis v. Continental Airlines, Inc.,

940 F.Supp. 1292 (N.D. Ill. 1996).

16

The FAA’s Saving Clause, when read with the ADA’s

preemption clause, should preserve Respondent’s right

under state law to the use and enjoyment of his property.

Whether that right is enforced by injunction and/or a

claim for tort damages should be of no consequence so long

as the injunction does not seek to impose substantive

standards with respect to rates, routes, or services of an

airline. There is no impact on Richard’s right to use his

helicopters for legitimate purposes.

“THE LAW DOES PROVIDE RESPONDENT

A REMEDY FOR THE LOSS OF USE AND

ENJOYMENT OF HIS PROPERTY

The Trial Court found Petitioners’ excessively low

flying helicopters serve no legitimate purpose and unnec-

essarily scared waterfowl off Broussard’s property, thereby

violating Broussard’s right to use and enjoy his property.

Petitioners’ argument against the State Court juris-

diction goes beyond the claim by Petitioners that the

entire field of aviation is entirely preempted by federal

law. Petitioners argue the only remedy available to Brous-

sard would have been through the FAA regulations, but

since there was no FAA violation, this avenue is closed.

Petitioners’ position that State Courts have no jurisdiction

coupled with Petitioners’ acknowledgment that the FAA

offers no remedy in this matter leads to but one conclu-

sion, i.e., the law affords Broussard no remedy for the loss

of the use and enjoyment of his property. Nowhere in

Petitioners’ Application is there an acknowledgment that

the law offers Broussard recourse for the loss of the use

and enjoyment of his property. Essentially, Petitioners

take the position that since the helicopter was flying

17

within the FAA regulations, nothing can be done to protect

Broussard’s property rights.

As a starting point, the Fifth Amendment of the

United States Constitution provides no person shall be

deprived of life, liberty or property without due process of

law. Respondent asserts the position taken by Petitioners

would violate his Fifth Amendment property rights. In

determining what constitutes a Fifth Amendment “tak-

ing,” Courts have relied upon state law.”

La. Civ. Code Art. 477 provides in pertinent part:

“A. Ownership is the right that confers on a per-

son direct, immediate, and exclusive authority

over a thing. The owner of a thing may use, en-

joy, and dispose of it within the limits and under

the conditions established by law.”

In Causby, supra, this Court recognized a Fifth

Amendment takings claim based on frequent low over-

flights by military aircraft. The plaintiffs operated a

chicken farm near a municipal airbase that had been

leased by the government for use by military aircraft.

Plaintiffs had to give up their chicken business as a result

of noise from the low overflights that frightened the birds.

Plaintiffs claimed the United States had taken an ease-

ment over their property, resulting in the value of the

property being destroyed. Much like Petitioners in the

case sub judice, the United States claimed under the Air

Commerce Act as amended by the Civil Aeronautics Act,

the United States had complete and exclusive national

Causby, supra, at 266.

RARE HST RARE EIEN OR EVE STRUTT Ries nic noe WEEP Ni: Sti 7

18

sovereignty of the airspace over this country. The govern-

ment argued because its flights were within the minimum

safe altitudes of flight which had been prescribed, they

were in exercise of the declared right of travel through

airspace.

Beginning at the bottom of page 20 of his Application,

Petitioners cites language from Causby in support of

Petitioners’ claim that a private citizen has no right to

claim a trespass in the airspace over his property. How-

ever, Petitioners neglected to point out limitations on the

use of this airspace by the public as noted in Causby, page

264, where this Court stated:

We have said that the airspace is a public high-

way. Yet it is obvious that if the landowner is to

have full enjoyment of the land, he must have

exclusive control of the immediate reaches of the

enveloping atmosphere ... The fact that he does

not-occupy it in a physical sense — by the erection

of buildings and the like — is not material. As we

have said, the flight of airplanes, which skim the

surface but do not touch it, is as much an appro-

priation of the use of the land as a more conven-

tional entry upon it.

The Court in Causby went on to recognize the plain-

tiff’s claims for loss of use and enjoyment of his property.

In so holding, this Court noted “our holding that there was

an invasion of Respondent’s property is thus not inconsis-

tent with the local law governing a landowneér’s claim to

the immediate reaches of the superadjacent airspace.”

(Causby, supra, p. 266.) (emphasis added.)

Petitioners’ Application, at page 21, footnote 6, at-

tempts to “discount” the relevance of the Causby decision

by stating “no tort action for damages was pursued.”

19

Petitioners, as already noted, are clearly wrong in this

assertion. (See Broussard’s Supp. Pet., V. 1, p. 104 and

agreement to try damages in later proceeding, V. 3, p. 58,

ll. 16-20.)

As noted by the Appellate Court below, LA. C.C. Art.

490 provides the ownership of a tract of land carries with

it the ownership of everything directly above or under it.

The Court recognized the airspace may be used for air

traffic at reasonable altitudes. However, the Court noted

Richard’s operation of his helicopter at excessively low

levels interfered with Broussard’s right to use and enjoy

his land. (App. 8-9.) -

LA. C.C.P. Art. 3601 provides an injunction shall issue

in cases where irreparable injury, loss, or damage may

otherwise result to the applicant.

LA. C.C.P. Art. 3663 clearly provides injunctive relief

is available “to protect or restore possession of immovable

property or of a real right therein, is available to: ...

(2) A person who is disturbed in the possession

which he and his ancestors in title have had

for more than a year of immovable property

or a real right of which he claims the owner-

ship, the possession or the enjoyment.”

(emphasis added.)

The Trial Court found Richard’s use of his helicopters

to harass and scare wildlife constitutes a violation of both

federal and state law. LA. R.S. 56:648.1 provides in appli-

cable part:

“No person shall... :

(1) Interfere with the lawful taking of a wild

animal by a hunter, trapper, or fisherman or

20

interfere with the process of taking, with intent

to prevent the taking.

(2) Disturb a wild animal....”

50 C.F.R. § 19.11(A)(2) provides “ ... no person shall

use an aircraft to harass any wildlife.”

Louisiana Courts have made it clear that just because

a criminal prosecution may be warranted, this does not

prohibit a Court from issuing a civil injunction if the

complained of conduct is injurious to property interests.

Connick v. Lucky Pierre’s, 331 So.2d 431 (La. 1976).

If the conduct sought to be enjoined is a violation of

law, then the party seeking the injunction is relieved of the

obligation of proving irreparable injury. Smith v. W.

Virginia Oil & Gas Co., 365 So.2d 269 (La. App. 2d Cir.

1978); writ granted on other grounds, and Hughes uv.

Muckelroy, 97-0618 (La. App. 1st Cir. 9/23/97), 700 So.2d

995. =

This Court, in Griggs, supra, recognized the validity of

a State Court action for taking under the 14th Amendment

of the United States Constitution for low overflights.

The Causby and Griggs decisions make it clear there

are limitations upon the activities of aircraft flying within

“navigable airspace” that can result in civil remedies

(federal or state). In the case sub judice, because Petition-

ers’ excessively low flying helicopters over Broussard’s

al

ee

21

property served no legitimate purpose; Broussard sought

injunctive relief as well as tort damages.

In Smith v. United Airlines, No. 00 C 50373, 2002 WL

31236392 (N.D. Ill. Oct. 3, 2002), the issue was whether or

not a state law negligence claim arising from an airline

passenger being struck by falling luggage was completely

preempted by the Federal Aviation Act (FAA) and Airline

Deregulation Act (ADA). The Court noted the FAA lacked

any civil enforcement provisions that would allow a

private citizen to sue for personal injury. The Court found

neither the FAA nor the ADA affords a complete preemp-

tion of state law claims. Plaintiff was allowed to pursue

his negligence claims in state court.

In the case of Town of East Haven v. Eastern Airlines,

Inc., 470 F.2d 148 (2nd Cir. 1972), the Court recognized

plaintiff’s right to recover damages for diminution of

plaintiff’s property value as a result of low overflights to

ana from nearby airports. The fact that the flights were

legal did not effect plaintiff’s rights to recover.

Likewise, the Supreme Court of Texas in City of

Austin v. Travis County Landfili Company, L.L.C., 73

S.W.3d 234 (TX 2002), recognized the right of citizens to

pursue state law claims for compensation as a result of

loss of use of enjoyment of their property due to low

overflights.

" The Trial Court specifically found Richard’s excessively low

flying helicopters served no legitimate purpose and resulted in water-

fowl being unnecessarily scared off of Broussard’s property. (App. 11.)

. 22

In Erie Municipal Airport Authority v. Agostini, 127

Pa.Cmwlth. 360, 561 A.2d 1281 (1989), the Court recog-

nized claims for “takings” as a result of low overflights.

In Palm v. United States, Bartleson v. United States,

Jones v. United States and Palm v. United States, 835

F.Supp. 512 (U.S. Dist. Ct. N.D. CA 1993), the Court

recognized the right of landowners to pursue federal and

state tort claims against the United States based upon

exploding projectiles and low overflights from military

aircraft.

—

In Swetland v. Curtiss Airports Corp., 55 F.2d 201 (6th

Cir. 1932), the Court held plaintiffs were entitled to enjoin

the use of an airport where its operation would seriously

interfere with plaintiffs’ use of their property.

In Brenteson Wholesale, Inc. v. Arizona Public Service

Company, 166 Ariz. 519, 803 P.2d 930 (Az. App. 1990), a

power company sought an injunction against the owner of

an adjacent airport to prohibit use of the airstrip because

it interfered with the power company’s use of its land

(danger of high voltage lines). The Court of Appeal used a

balancing test to determine the reasonableness of the

interference. The court granted the injunction prohibiting

use of the airstrip.

In the case sub judice, a balancing test would compare

Broussard’s loss. of use and enjoyment of his property to

the right of Richard to fly his helicopters at “excessively

low altitudes for no legitimate purpose.”

23

EQUITY FAVORS PROTECTING BROUSSARD’S

PROPERTY RIGHTS VIA INJUNCTIVE RELIEF

This Court in Causby and Griggs recognized a land-

owner’s right to assert a takings claim (federal or state) for

loss of value of plaintiff’s property due to low overflights.

Damages in these cases were somewhat fixed and subject

to a “one time” assessment. The loss of the chicken busi-

ness in Causby was a pecuniary loss readily subject to

evaluation. In Griggs, the plaintiff’s home was deemed not

suitable for residential purposes due to airplane noise. The

loss to Griggs was readily ascertainable by traditional

methods.

The factual circumstances of the case at hand do not

easily lend themselves to traditional tort damages. Not

only would it be difficult to fix damages for any given

infraction, but Broussard would be required to file another

claim every time Richard decides to scare birds off Brous-

sard’s property. Further, there is no way for Broussard to

know of all of Richard’s flights nor the extent of damage

from any low flight not witnessed. The most logical solu-

tion is simply to prohibit these low flights that “serve no

legitimate purpose.” An injunction is a reasonable method

to solve the problem. An injunction allows Broussard to

exercise his right to use and enjoy his property. An injunc-

tion under the facts of this case has no effect on interstate

commerce, air traffic, airline routes, prices or services. It

would be a reasonable interpretation of the FAA’s “Saving

Clause” to allow for injunctive relief under these limited

facts and circumstances. On the other hand, it would seem

unreasonable to require Broussard to bring Richard back

to Court every time there is a violation; this would result

in unnecessary litigation and expense. (Tort victims in

24

Louisiana cannot recover attorney fees or punitive dam-

ages.)

The activity sought to be enjoined has nothing to do

with the legal use of Richard’s helicopters. None of the

activities” mentioned at page 2 of Petitioners’ Application

would be affected, nor does the injunction have any bear-

ing on the “911” policy reasons argued at page 24 of

Petitioners’ Application.

@

Vv

CONCLUSION

The “bottom line” of Petitioners’ arguments is since

Richard was not violating any FAA Rules, Broussard has

no remedy under any law for the loss of use and enjoyment

of his property due to the low overflights. Accepting

Petitioners’ argument, because Broussard lives in a rural

area, Richard is free to hover over Broussard’s home at

any altitude he chooses so long as he does not endanger

persons or property. In fact, if someone is having a political

gathering out in the country, a political spy could hover his

helicopter 20' over the crowd and the law could offer no

recourse so long as there was no danger to persons or

»roperty. ;

Petitioners argue the events of “911” make the case for

total federal preemption that much more compelling. But,

if you accept Petitioners’ argument that only FAA viola-

tions can result in a remedy, then even the federal

” Petitioners said they use his helicopter to transport hunters,

check for poachers, manage cattle, etc.

25

government could not stop “excessively low helicopter

flights that served no legitimate purpose” even if deemed a

potential security risk or terrorist threat.

There is no complete preemption as argued by Peti-

tioners. Takings claims, state and federal, have been

recognized by this Court. Other Courts, federal and state,

have recognized the right of injunctive relief where low

overflights interfere with a person’s right to use and enjoy

his property.

An injunction is a reasonable remedy under the FAA

Savings Clause. The injunction herein is directed at one

individual under a peculiar and limited circumstance. The

enjoined flights were found to serve no legitimate purpose.

The injunction does not require Petitioners to change

routes, time of flights; it does not affect interstate com-

merce or regulate airline routes, prices or services.

As discussed in Peterson, supra, there should be no

preemption under the facts of this case because any

impact on Richard’s services is tenuous, remote or periph-

eral. Further, flying a helicopter excessively low for no

legitimate purpose other than to scare and harass water-

fowl would seem to fit within the Peterson court’s descrip-

tion of “outrageous conduct” and, hence, no preemption.

Because Petitioners cite important factual findings of

the Trial Court as being in error and because the injunc-.

tion is a reasonable protection of Broussard’s property

26

rights, the facts and circumstances of this case do not

warrant an exercise of this Court’s Writ power.

STEVEN BROUSSARD - RANDALL E. HaRT*

1301 Common Street 1301 Common Street

Lake Charles, LA 70601 Lake Charles, LA 70601

Telephone: 337/439-2450 Telephone: 337/439-2450

*Counsel of Record

February 2003