Goodspeed Airport LLC v. East Haddam Inland Wetlands, No. 10-516 (2d Cir. 2011)

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10-516-cv Goodspeed Airport v. Dep t of Envtl. Prot. et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: January 10, 2011 Decided: February 10, 2011) Docket No. 10-516-cv GOODSPEED AIRPORT LLC, Plaintiff-Appellant, v. EAST HADDAM INLAND WETLANDS & WATERCOURSES COMMISSION, JAMES VENTRES, Defendants-Appellees, STATE OF CONNECTICUT, Amicus Curiae.* Before: POOLER, KATZMANN, and WESLEY, Circuit Judges. Appeal from judgment of the United States District Court 33 for the District of Connecticut (Kravitz, J.), entered on 34 January 13, 2010 after bench trial, in favor of Defendants- 35 Appellees, determining that the Connecticut Inland Wetlands 36 and Watercourses * Act and the Connecticut Environmental The Clerk of the Court is directed to amend the official caption in accordance with this opinion. 1 Protection Act, as well as municipal regulations pursuant 2 thereto (specifically the imposition of a permit requirement 3 on cutting trees on protected wetlands), are neither expressly 4 nor impliedly preempted by the Federal Aviation Act, the 5 Airline 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Deregulation Act, or Federal Aviation Agency regulations promulgated thereunder. AFFIRMED. DEAN M. CORDIANO, Day Pitney LLP, Hartford, CT (René A. Ortega, John R. Bashaw, on the brief), for Plaintiff-Appellant. KENNETH J. MCDONNELL, Gould, Larson, Bennet, Wells & McDonnell, P.C., Essex, CT, for DefendantsAppellees. MARY K. LENEHAN, Assistant Attorney General (for Richard Blumenthal, Attorney General of the State of Connecticut), Hartford, CT, for Amicus Curiae. WESLEY, Circuit Judge: 26 Plaintiff-Appellant Goodspeed Airport LLC appeals from a 27 judgment of the United States District Court for the District 28 of Connecticut (Kravitz, J.), entered after a bench trial, in 29 favor of Defendants-Appellees East Haddam Inland Wetlands and 30 Watercourses Commission and James Ventres. 31 sought declaratory and injunctive relief establishing and 32 protecting its right to cut certain trees on its property, Page 2 of 15 Goodspeed Airport 1 part of which is protected wetlands. Under Connecticut law 2 and municipal regulations, a person must apply for permission 3 to undertake activities affecting wetlands. 4 clarify what to date this Court has suggested only in dicta: 5 that Congress has established its intent to occupy the entire 6 field of air safety, thereby preempting state regulation of 7 that field. 8 scheme at issue in the instant appeal do not sufficiently 9 intrude upon the field of air safety to be preempted. We write to However, the state and local laws and regulatory Nor are 10 they expressly preempted by the Airline Deregulation Act. 11 Accordingly, the judgment of the district court is AFFIRMED. 12 13 I. BACKGROUND 14 15 The facts of this case, as well as the statutory and 16 regulatory context, are discussed at length in the district 17 court s 18 Airport, LLC v. East Haddam Inland Wetlands & Watercourses 19 Comm n (Goodspeed), 681 F. Supp. 2d 182 (D. Conn. 2010). We 20 discuss an 21 understanding of the issues presented on appeal. 22 thorough only and those well-reasoned aspects of the opinion. case Goodspeed necessary to Appellant Goodspeed Airport (the Airport ) is a small, Page 3 of 15 1 state-licensed, privately owned and operated commercial 2 airport in East Haddam, Connecticut. 3 is the enforcement officer for Appellee East Haddam Inland 4 Wetlands and Watercourses Commission ( IWWC ). Appellee James Ventres 5 The IWWC is a municipal regulatory body established 6 pursuant to the Connecticut Inland Wetlands and Watercourses 7 Act ( IWWA ). The IWWA declares that it is the public policy 8 of [Connecticut] to require municipal regulation of activities 9 affecting the wetlands and watercourses within the territorial 10 limits of the [state s] various municipalities or districts. 11 Conn. Gen. Stat. § 22a-42(a). 12 desist 13 provisions. 14 apply to the IWWC for permission before undertaking activities 15 affecting protected land. 16 orders and bring The IWWC may issue cease and actions to enforce the act s Persons within its jurisdiction are required to The Airport s property is partly composed of protected 17 wetlands. This protected land contains trees and other 18 vegetation which the Airport wishes to cut down. 19 2001, the IWWC issued Goodspeed a Cease and Desist Order (the 20 Order ) instructing 21 activity within 22 watercourses (regulated areas) on your property[.] The Order it to seventy-five refrain feet Page 4 of 15 of from all In January regulated inland/wetlands and 1 cited as its authority certain regulations of the Town of East 2 Haddam, adopted and promulgated under Connecticut General 3 Statute Section 22a. 4 Appellees continue to assert that the Airport is obliged to 5 obtain a permit before cutting the trees. This Order was later withdrawn, but 6 The Airport contends and Appellees do not contest 7 that some of the trees it wishes to cut down fall within the 8 definition of obstructions to air navigation under 14 C.F.R. 9 Part 77 ( FAA Regulations ). The FAA Regulations establish 10 standards for identifying these obstructions, defining an 11 imaginary surface in the shape of a bowl around regulated 12 runways. 13 surface are declared to be obstructions.1 Id. § 77.23. Objects breaching this imaginary Id. 14 The Airport argues that, since these trees qualify as 15 obstructions, they are therefore hazards to air navigation 16 under the FAA Regulations and the otherwise applicable state 17 and local statutory and regulatory framework establishing the 18 IWWC s permit process is preempted. Specifically, the Airport 1 Appellees contend that, while the FAA Regulations provide a definition of obstructions, obstructions are not ipso facto hazards to air navigation absent a specific determination of that status by the FAA. We need not decide whether the FAA Regulations would preempt the state and local laws, regulations, and actions challenged here if the trees were declared hazards and their removal ordered by the FAA. Significantly, in this case the federal government renounced any intention indeed, questioned whether it had the authority to declare the trees hazards and/or to order their removal. Page 5 of 15 1 contends it should be allowed to take whatever steps are 2 necessary to remove the trees without first applying for a 3 permit, and that both IWWA and the Connecticut Environmental 4 Protection Act ( CEPA, codified at Conn. Gen. Stat. §§ 22a-14 5 to 22a-20) are preempted as to any restriction they might 6 otherwise impose on this activity. 7 The Airport offers two theories of preemption. First, it 8 argues that the state and local statutes, regulations and 9 actions pursuant to IWWA and CEPA are impermissible intrusions 10 upon a field of regulation which Congress (via the Federal 11 Aviation Act of 1958 ( Aviation Act ) and the FAA Regulations 12 promulgated thereunder) has indicated its intent to entirely 13 occupy. 14 pursuant to language in the Airline Deregulation Act of 1978 15 ( ADA ). Second, the Airport argues for express preemption 16 The Airport sought a declaratory judgment establishing 17 its right to cut down the trees without applying to the IWWC 18 for a permit. 19 bringing any action under state or local law to prohibit or 20 otherwise regulate the removal of any trees constituting It also sought to enjoin the defendants from Page 6 of 15 1 obstructions to air navigation.2 2 district court ruled that neither theory of preemption was 3 established. 4 while Congress in passing the Aviation Act intended to occupy 5 the entire field of air safety, the state and local statutes, 6 regulations and actions in question do not intrude into that 7 field and are therefore not field-preempted. 8 district court found no express preemption as a result of the 9 ADA language. The Airport timely appealed from this judgment. 10 For the reasons stated below, we agree with the district court 11 on all points. After a bench trial, the Specifically, the district court found that, Further, the 12 13 II. DISCUSSION3 14 15 Federal preemption of state law can be express 2 or The Connecticut Environmental Protection Agency and one of its officers were also named in the complaint. The district court found that the Airport had failed to allege that the state defendants were involved in an ongoing violation of or threatening to violate federal law; accordingly, they were entitled to Eleventh Amendment immunity. Although the court urged the state defendants not to exercise the privilege, they refused to waive it and the claims against them were dismissed. Goodspeed Airport, LLC v. East Haddam Inland Wetlands & Watercourses Comm n, 632 F. Supp. 2d 185, 188, 189-90 (D. Conn. 2009) (published ruling and order of dismissal). The State of Connecticut later appeared as amicus curiae. 3 We review de novo a district court s application of preemption principles. New York SMSA Ltd. P ship v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010) (per curiam). Findings of fact in a bench trial are reviewed for clear error; application of law to those facts is reviewed de novo. Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010). Page 7 of 15 1 implied. See New York SMSA Ltd. P ship v. Town of Clarkstown, 2 612 F.3d 97, 104 (2d Cir. 2010) (per curiam).4 3 implied 4 displace state authority is required. 5 Foreign Trade Council, 530 U.S. 363, 372 (2000). 6 rebuttable presumption against the preemption of the states 7 exercise of their historic police power to regulate safety 8 matters. 9 of Health, 556 F.3d 114, 123 (2009) (citing Hillsborough 10 Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 718 11 (1985)). 12 The preemption, evidence of To establish Congressional intent to See Crosby v. Nat l There is a See New York State Rest. Ass n v. New York City Bd. Airport argues that, once a tree becomes an 13 obstruction to air navigation under the FAA Regulations, the 14 local permit process becomes ipso facto inapplicable to the 15 Airport s efforts to trim or remove that tree. 16 does not claim that the permit process is entirely preempted 17 or invalidated by federal law, merely that it cannot operate 18 so as to interfere with the removal of obstructions to air 19 navigation. 20 However, it Generally, facial challenges must demonstrate that there 4 Clarkstown discusses the three recognized forms of preemption: express preemption and the two types of implied preemption, field and conflict. These categories are not rigidly distinct; for example, it may be possible to recast field preemption as a subset of conflict preemption. English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990). Page 8 of 15 1 is no possible set of conditions under which the challenged 2 state permit process could be constitutional. See, e.g., Cal. 3 Coastal Comm n v. Granite Rock Co., 480 U.S. 572, 580 (1987). 4 However, this showing need not be made when a plaintiff claims 5 that what is preempted [ ] is the permitting process itself, 6 not the length or outcome of that process in particular 7 cases. 8 644 (2d Cir. 2005). Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 9 On their face, the IWWA, CEPA, and the local permit 10 process established pursuant thereto do not address issues of 11 air safety. 12 merely impose a permit requirement on their removal. A proper 13 examination of the Airport s claim therefore requires us to 14 consider whether federal law occupies the field of air safety, 15 and if it does, whether the state laws and regulations intrude 16 upon that field. 17 Nor do they prohibit removal of the trees; they The United States Government has exclusive sovereignty 18 of airspace of the United States. 19 The district court took this language, as well as the overall 20 statutory and regulatory scheme initiated by the Aviation Act, 21 as evidence of a clear congressional intent to occupy the 22 entire field of aviation safety to the exclusion of state Page 9 of 15 49 U.S.C. § 40103(a)(1). 1 law. Goodspeed, 681 F. Supp. 2d at 201. 2 In Air Transport Ass n of America, Inc. v. Cuomo (ATA), 3 520 F.3d 218, 225 (2d Cir. 2008), this Court observed that 4 several of our sister circuits, and several district courts 5 within our own circuit, have concluded that Congress intended 6 to occupy the entire field of air safety and thereby preempt 7 state regulation of that field. 8 Congressional intent to centralize air safety authority and 9 the comprehensiveness of [ ] regulations pursuant to that ATA examined evidence of 10 authority, under both the Aviation Act and the ADA. 11 However, as the district court was careful to observe, ATA 12 stopped short of formally holding that Congress intended to 13 occupy the field of air safety. 14 2d at 199. 15 Id. See Goodspeed, 681 F. Supp. Today we join our sister circuits.5 But concluding that Congress intended to occupy the field 16 of air safety does not end our task. As the district court 17 recognized, the inquiry is twofold; we must determine not only 18 Congressional intent to preempt, but also the scope of that 5 ATA, 520 F.3d at 225, collects the relevant circuit cases through 2008. Since then, at least one additional circuit has held that Congress intended to occupy the field of air safety. See US Airways, Inc. v. O Donnell, 627 F.3d 1318, 1326 (10th Cir. 2010); see also Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007); Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d 784, 795 (6th Cir. 2005); Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 367-68 (3d Cir. 1999); French v. Pan Am Express, Inc., 869 F.2d 1, 5 (1st Cir. 1989). Page 10 of 15 1 preemption. The key question is thus at what point the state 2 regulation sufficiently interferes with federal regulation 3 that it should be deemed pre-empted[.] 4 Wastes Mgmt. Ass n, 505 U.S. 88, 107 (1992). 5 the district court that although Congress intended to occupy 6 the entire field of air safety, the state laws at issue here 7 do 8 sufficiently to fall within the scope of the preempted field. 9 Goodspeed, 681 F. Supp. 2d at 201-02. not interfere with federal Gade v. Nat l Solid laws We agree with and regulations 10 The district court correctly distinguished a recent case, 11 also from the District of Connecticut, which held that the 12 Aviation 13 actions.6 14 Haven, Conn. (Tweed), 582 F. Supp. 2d 261, 267 (D. Conn. 15 2008). 16 commercial 17 federally-mandated, 18 federally-approved 19 aviation safety. 20 Act impliedly preempts certain town regulatory Tweed-New Haven Airport Auth. v. Town of East There, municipal defendants sought to prevent a airport from obstruct[ing] federally-funded, runway project construction and intended stateto of a and enhance Id. at 263. The local regulatory action at issue in Tweed constitutes 6 The district court in Tweed rejected the claim that these regulatory actions were expressly preempted by the language of the Airline Deregulation Act discussed below. 582 F. Supp. 2d at 268. Page 11 of 15 1 a much more 2 preempted field of air safety than do the regulatory actions 3 challenged here. 4 Airport is not licensed by the FAA; it is not federally 5 funded, and no federal agency has approved or mandated the 6 removal of the trees from its property. 7 response to a formal inquiry from the district court in this 8 case, the federal government disclaimed any authority to order 9 the trees direct intrusion of local authority on the Unlike Tweed-New Haven Airport, Goodspeed removal.7 Therefore, while Indeed, in its in Tweed the 10 construction project was approved, indeed required, by the 11 federal regulatory authority, in this case there is no federal 12 interest in the Airport s proposed actions. 13 Moreover, IWWA and CEPA are environmental laws that do 14 not refer to aviation or airports. Neither statute prohibits 15 the trimming or removal of any tree located in a protected 16 area. 17 obtain a permit before removing the trees in question. 18 Conn. Gen. Stat. § 22a-42a. Thus, Appellant s contention that Instead, the Wetlands Act requires only that Appellant 7 See As the response was not the product of formal rulemaking, the district court afforded it limited Skidmore/Mead deference. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also United States v. Mead Corp., 533 U.S. 218, 234-35 (2001). Further, the district court confined its consideration of the response to its discussion of the Airport s field preemption claim, as the court s ruling on the express preemption claim depended on certain factual findings, Goodspeed, 681 F. Supp. 2d at 192-98, unavailable to the federal Government. Id. at 213 n.11. In any event, the district court explicitly noted that it would have reached the same result even had it afforded the response no deference at all. Id. at 213, 214. Page 12 of 15 1 IWWA and CEPA have the impermissible effect of prohibiting 2 the removal of the obstructions under the Aviation Act, 3 Appellant s Brief at 20, is unsupported. 4 empted field is defined by reference to the purpose of the 5 state law in question . . . another part of the field is 6 defined by the state law s actual effect[.] 7 Elec. Co., 496 U.S. 72, 84 (1990). 8 here do not enter the scope of the preempted field in either 9 their purpose or their effect. 10 [P]art of the pre- English v. Gen. The state laws at issue In occupying the field of air safety, Congress did not 11 intend 12 regulations like the ones at issue here, especially when 13 applied to small airports over which the FAA has limited 14 direct oversight. 15 permit application process is impliedly preempted by federal 16 law is without merit. 17 to preempt Appellant also the operation of state statutes and Appellant s contention that the IWWC s argues that both IWWA and CEPA are 18 expressly preempted by language in the Aviation Act, as 19 modified by the ADA, codified at 49 U.S.C. § 41713(b)(1): 20 21 22 23 24 25 Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, rule, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may Page 13 of 15 1 provide air transportation under this subpart. 2 In ATA, this Court found the New York Passenger Bill of 3 Rights expressly preempted by § 41713(b)(1): We hold that 4 requiring airlines to provide food, water, electricity, and 5 restrooms to passengers during lengthy ground delays does 6 relate to the service of an air carrier and therefore falls 7 within the express terms of the ADA s preemption provision. 8 520 F.3d at 223. 9 does not preempt applicable state and local environmental and use Today, by contrast, we hold that the ADA 10 land statues and regulations that impose permit 11 requirements whose impact on air carriers, if any, is remote. 12 See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 13 (1992) (cautioning that, while even indirect impact on air 14 carriers may be preempted, state action with tenuous, remote, 15 or peripheral effects on air carriers is not preempted) 16 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 17 (1983)). 18 The state and local statutes, regulations and actions at 19 issue here are neither field-preempted by the language of the 20 Aviation 21 Accordingly, Appellant is obliged to observe the appropriate 22 state procedures. Act, nor expressly preempted 23 Page 14 of 15 by the ADA. 1 III. CONCLUSION 2 3 Although we hold that Congress has indicated its intent 4 to occupy the entire field of aviation safety, the generally 5 applicable 6 requirements on land use challenged here do not, on the facts 7 before us, invade that preempted field. 8 on air carriers of the laws and regulations at issue here, if 9 any, is too remote to be expressly preempted under the terms state laws and regulations imposing permit Further, the impact 10 of the Airline Deregulation Act. Accordingly, the district 11 court s judgment of January 13, 2010 is hereby AFFIRMED. Page 15 of 15

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