Barrett et al v. County of Napa et al, No. 3:2018cv06124 - Document 49 (N.D. Cal. 2019)
Court Description: ORDER DENYING IN PART AND GRANTING IN PART 38 MOTION TO DISMISS. Signed by Judge William Alsup. (whalc2, COURT STAFF) (Filed on 4/18/2019)
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Barrett et al v. County of Napa et al Doc. 49 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 12 HELICOPTERS FOR AGRICULTURE; JAMES BARRETT; HEIDI BARRETT; and BARRETT AND BARRETT VINEYARDS, LP, 13 Plaintiffs, 11 For the Northern District of California United States District Court 10 14 15 No. C 18-06124 WHA ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS v. COUNTY OF NAPA and NAPA COUNTY BOARD OF SUPERVISORS, 16 Defendants. / 17 18 INTRODUCTION 19 In this action challenging a county ordinance regulating the use of helicopters for 20 21 22 agricultural purposes, defendants’ motion to dismiss is DENIED IN PART and GRANTED IN PART. STATEMENT 23 In June 2018, the voters of Napa County passed an initiative measure that restricted the 24 use of helicopters for agricultural operations. The measure was soon adopted as Napa County 25 Ordinance No. 2018-002 and included the following statement of purpose: 26 27 28 The people find that any proliferation of personal use airports or heliports would be inconsistent with and detrimental to the rural, agricultural and peaceful character of Napa County. This Ordinance is intended to prohibit any new personal use airports or heliports. Also, the Ordinance makes no changes to existing law that permits the landing of aircraft and helicopters for emergency uses. Finally, the Ordinance clarifies the limited circumstances Dockets.Justia.com 1 under which helicopters may take-off and land in the County for agricultural purposes. 2 The ordinance specifically modified Section 18.120.010 of the Napa County Code, 3 which listed exceptions to use limitations. Before the enactment of the ordinance, Section 4 18.120.010 explicitly allowed “[h]elicopter takeoffs and landings solely in support of direct 5 agricultural production activities such as aerial spraying and frost protection” without a user 6 permit in any zoning district. The ordinance modified that section to allow “[h]elicopter 7 takeoffs and landings at locations other than public airports, in support of direct agricultural 8 activities, but only if the takeoffs and landings comply with all of the following conditions: (a) 9 they are solely in support of direct aerial agricultural activities and applications such as aerial 10 those essential to the conduct of such aerial activities; and (c) they are unavoidable.” For the Northern District of California United States District Court spraying, aerial frost protection, or aerial mapping; (b) they do not transport persons other than 11 12 The ordinance further required that within forty-eight hours of any takeoff or landing in 13 support of direct agricultural activities, the helicopter operator had to submit a written report 14 stating the date, time, duration, and aerial activity of the operation, along with the people who 15 participated in the activity, and the reason why the operation was unavoidable. Violation of the 16 ordinance could result in civil and criminal penalties (First Amd. Compl. ¶¶ 1, 33–38). 17 Plaintiff Helicopters for Agriculture is an unincorporated nonprofit association 18 committed to the removal of state and local regulatory barriers to the use of helicopters for 19 agricultural operations. Plaintiffs James and Heidi Barrett are residents of Napa County and 20 owners of plaintiff Barrett and Barrett Vineyards, LP, a California limited partnership that owns 21 and operates a vineyard in northern Napa County. Since 2010, the Barretts have owned and 22 used a helicopter for agricultural activities on their vineyards and offered similar services to 23 clients that own vineyards in neighboring counties. Helicopters play a critical role, they say, in 24 agricultural management and production and are used for distribution of seed for crop cover, 25 frost protection, aerial spraying, grape drying, and vineyard inspection. The Barretts allege that 26 continued helicopter use may subject them to civil and criminal liability. Plaintiffs thus bring 27 this action for declaratory and injunctive relief against defendants, the County of Napa and its 28 2 1 Board of Supervisors, in order to protect their own interests and those of other owners and 2 operators of farms and vineyards in Napa County (First Amd. Compl. ¶¶ 1–7, 10–24). 3 Plaintiffs assert three lines of attack against the ordinance. First, plaintiffs bring a facial 4 challenge that the ordinance is insufficiently precise to give fair notice, thus violating due 5 process. Second, plaintiffs claim that the ordinance is facially preempted by Federal Aviation 6 Administrations regulations. Third, the Barretts claim that the application of the ordinance 7 would deprive them of their vested rights in violation of due process. Defendants Napa County 8 and its Board of Supervisors move to dismiss all claims. ANALYSIS For the Northern District of California United States District Court 9 10 1. VOID FOR VAGUENESS. 11 The Due Process Clause prohibits the government from “tak[ing] away someone’s life, 12 liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice 13 of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. 14 United States, 135 S. Ct. 2551, 2556 (2015). “The Fifth Amendment prohibits the enforcement 15 of vague criminal laws, but the threshold for declaring a law void for vagueness is high.” Id. at 16 2576. Facial challenges to a law, as here, are especially “disfavored” because they “often rest 17 on speculation” and “run contrary to the fundamental principle of judicial restraint that courts 18 should neither anticipate a question of constitutional law in advance of necessarily deciding it 19 nor formulate a rule of constitutional law broader than is required by the precise facts to which 20 it is applied.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 21 450 (2008) (internal citations and quotations omitted). 22 Our court of appeals recently addressed the legal standard for facial void for vagueness 23 challenges in Gurrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018). Before Gurrero, plaintiffs 24 mounting a facial challenge for vagueness had to “establish that no set of circumstances exists 25 under which the statute would be valid,” a high bar outlined in United States v. Salerno, 481 26 U.S. 739, 745 (1987). Our court of appeals found that two Supreme Court decisions, Johnson, 27 135 S.Ct. at 2556, and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), expressly rejected the “no 28 set of circumstances” test in the void for vagueness context. Gurrero, 908 F.3d. at 544. Our 3 1 court of appeals lowered the burden for parties, like plaintiffs, that bring facial void for 2 vagueness challenges as the government cannot defeat challenges by simply offering a single 3 example where a law could be clearly applied. 4 Here, plaintiffs challenge the use of the words “essential” and “unavoidable” in the 5 ordinance as impermissibly vague. The ordinance specified that only personnel “essential” to 6 the conduct of aerial activities were allowed on the helicopters, and the helicopter takeoffs and 7 landings had to be “unavoidable.”1 The ordinance, however, failed to define these words or 8 provide other context (First Amd. Compl. ¶¶ 39–48). For the Northern District of California United States District Court 9 This order holds that the word “unavoidable” is unduly vague, at least at the pleading 10 stage. Does it mean that the crop will fail without that particular aerial spraying? Does it mean 11 that ground-based spraying—as in hand spraying—would not suffice? Does it mean that the 12 flight is barred if it is physically possible to take off and land from a municipal airport? Or does 13 it simply mean that if aerial spraying is used, the task must be accomplished in the fewest 14 number of flights possible? Yes, the word “unavoidable” has been upheld in other contexts but 15 here the context lends itself to too many possibilities. 16 On the other hand, the word “essential” is not vague. It means the pilot and all other 17 personnel on board are needed to safely complete the flight and to complete the agricultural 18 operation. This includes spray operators, co-pilots, and even the field manager of the vineyard 19 if needed to direct the spraying operations. Thus, as to “essential,” defendants’ motion to 20 dismiss the void for vagueness claim is GRANTED. As to “unavoidable,” the motion is DENIED. 21 2. FEDERAL PREEMPTION. 22 Plaintiffs also claim that the ordinance is preempted by the Federal Aviation Act of 23 1958, 49 U.S.C. §§ 40101–50105. “There are three circumstances in which state law is 24 preempted under the Supremacy Clause, U.S. Const. art. VI, cl. 2, by federal law: (1) express 25 1 26 27 28 A court may judicially notice a fact that is “not subject to reasonable dispute” because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Federal Rules of Evidence 201(b). Courts may take judicial notice of matters of public record, including municipal ordinances. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir 2006). Therefore, plaintiffs’ request for judicial notice of Exhibit A, Ordinance No. 2018-02, is GRANTED. Exhibit B, an FAA Advisory Circular on rotocraft external-load operations, is not necessary for resolving the motion to dismiss, so the request for judicial notice as to Exhibit B is DENIED AS MOOT. 4 For the Northern District of California United States District Court 1 preemption, where Congress explicitly defines the extent to which its enactments preempt state 2 law; (2) field preemption, where state law attempts to regulate conduct in a field that Congress 3 intended the federal law exclusively to occupy; and (3) conflict preemption, where it is 4 impossible to comply with both state and federal requirements, or where state law stands as an 5 obstacle to the accomplishment and execution of the full purpose and objectives of Congress.” 6 Indus. Truck Ass’n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997). 7 As the “Federal Aviation Act has no express preemption clause,” plaintiffs preemption 8 theories must allege either implied field preemption or conflict preemption. See Martin ex rel. 9 Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). To bring a facial 10 preemption challenge, plaintiffs must still overcome the high bar set in Salerno: that “no set of 11 circumstances exists under which the Act could be valid.” See Puente Arizona v. Arpaio, 821 12 F.3d 1098, 1104 (9th Cir. 2016). 13 A. 14 Field Preemption. The “essential field preemption inquiry is whether the density and detail of federal 15 regulation merits the inference that any state regulation within the same field will necessarily 16 interfere with the federal regulatory scheme.” Nat’l Fed. of the Blind v. United Airlines, Inc., 17 813 F.3d 718, 734 (9th Cir. 2016). A two-step framework has been established for evaluating 18 field preemption: “The first step in determining whether [field preemption] exists is to delineate 19 the pertinent regulatory field; the second is to survey the scope of the federal regulation within 20 that field.” Ibid. 21 Here, there is an initial dispute over the pertinent regulatory field. Plaintiffs assert that 22 the ordinance encroaches on federal regulation of aircraft navigation, aircraft noise, and air 23 safety, fields that have found to be preempted by the FAA. Defendants counter that the 24 pertinent regulatory field is helicopter takeoffs and landings for agricultural purposes on private 25 property, a field that lacks pervasive regulations. Courts tasked with delineating the pertinent 26 regulatory field have tailored it narrowly. See, e.g., Martin, 555 F.3d at 811 (“[I]t means that 27 when the agency issues ‘pervasive regulations’ in an area, like passenger warnings, the FAA 28 5 1 preempts all state law claims in that area”). Thus, defendants’ narrower characterization of the 2 pertinent field is more appropriate (Opp. 5–7; Reply Br. 2 –5). 3 4 the field of helicopter takeoffs and landings for agricultural purposes on private property, the 5 ordinance could still impermissibly encroach upon helicopter operations for agricultural 6 purposes, a field which does have extensive regulations. See 14 C.F.R. pt. 137. This underlies 7 a central question in this dispute: whether the ordinance is primarily a land use or zoning 8 regulation that is traditionally within the province of local government or if the ordinance 9 affects how, where, and when pilots can operate a helicopter, an area exclusively occupied by For the Northern District of California 10 United States District Court Our inquiry, however, does not end there. Even if pervasive regulations do not occupy federal law. 11 This order finds that the ordinance specifically targets helicopter takeoffs and landings 12 at locations other than public airports, making it primarily a land use regulation. Although the 13 ordinance dictates that only essential personnel are allowed on board and allows only 14 unavoidable landings and takeoffs, it still primarily regulates where these helicopter operations 15 can begin and end. Defendants are persuasive that the ordinance is an instance of “using the 16 zoning power to assure harmonious development” that does not impinge on helicopter 17 operations. San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1313–1314 (9th Cir. 18 1981). Furthermore, for a facial preemption challenge, plaintiffs must establish that there are 19 “no sets of circumstances” where the ordinance could be valid. Plaintiffs have failed to meet 20 this high burden as the ordinance could easily be construed as a traditional land use regulation. 21 Therefore, defendants’ motion to dismiss the field preemption claim is GRANTED. 22 B. Conflict Preemption. 23 Conflict preemption applies “where compliance with both federal and state regulations 24 is a physical impossibility” and in “those instances where the challenged state law stands as an 25 obstacle to the objectives of Congress.” Ventress v. Japan Airlines, 747 F.3d 716, 720–21 (9th 26 Cir. 2014), cert denied, 135 S.Ct. 164 (2014). As in the case of field preemption, plaintiffs have 27 failed in its facial challenge to establish that the ordinance conflicts with federal regulations 28 governing helicopter operations in every circumstance. 6 For the Northern District of California United States District Court 1 Plaintiffs contend that the requirement to only carry essential personnel conflicts with 2 FAA regulations on who may be carried on board agricultural helicopter operations. Plaintiffs 3 point to 14 C.F.R. § 133.35, which states “No certificate holder may allow a person to be 4 carried during rotocraft external-load operations unless that person (1) Is a flight crewmember; 5 (2) Is a flight crewmember trainee; (3) Performs an essential function in connection with the 6 external-load operation; or (4) Is necessary to accomplish the work activity directly associated 7 with that operation.” This FAA rule is a prohibition, not a conferral of rights. It does not 8 confer a right to carry trainees. It bars pilots from carrying anyone other than the listed 9 individuals. The ordinance does not bar all training flights. It limits spraying flights and bars 10 trainees on spraying flights, given that they are not essential to spraying. There is no direct 11 conflict since the federal regulations and county ordinance can accommodate each other (Opp. 12 10–12). 13 Plaintiffs also point to another regulation that prohibits private agricultural aircraft 14 operators from operating over a congested area. 14 C.F.R. § 137.35. Plaintiffs, however, have 15 failed to establish that following the ordinance would require more helicopter operations to 16 occur over congested areas in every circumstance. There is a possibility that helicopters could 17 be routed from public airports to their agricultural operations with more circuitous routes that 18 have little or no intersection with congested areas. As plaintiffs fall short of establishing a 19 conflict in every circumstance, the defendants’ motion to dismiss the conflict preemption claim 20 is GRANTED. 21 3. VESTED RIGHTS. 22 Finally, the Barretts assert that the ordinance deprives them of a vested property right: 23 the right to continue their longstanding use of a helicopter for agricultural management 24 activities. Although the complaint initially alleged constitutional due process violations, 25 subsequent briefing has clarified that plaintiffs’ claim involves the “vested right to continue a 26 use which existed at the time zoning regulations changed and the use thereafter became a 27 nonconforming use.” Stokes v. Bd. of Permit Appeals, 52 Cal. App. 4th 1348, 1353 (1997). 28 This vested rights claim is a “species of governmental estoppel” and a “claim of estoppel 7 1 against the government rests not on Constitutional norms of fairness but on broader norms of 2 equity.” Lakeview Development Corp. v. City of South Lake Tahoe, 915 F.2d 1290, 1295 (9th 3 Cir. 1990). Thus, state law governs this claim. For the Northern District of California United States District Court 4 The Barretts’ challenge, however, is not ripe for judicial review because they have not 5 yet been denied permission to continue their helicopter operations. See League to Save Lake 6 Tahoe v. Crystal Enters., 685 F.2d 1142, 1146 (9th Cir. 1982) (noting that the vested rights 7 claim was not ripe as the landowner had not been denied permission to continue the project). 8 The Barretts assert that it would be futile to seek permission to continue their nonconforming 9 use as defendants deny their vested rights as a matter of law in this action. This order disagrees 10 and holds that the Barretts must apply for a permit. Then we can litigate the specific conditions 11 imposed and whether those conditions violate any “vested right” granted. Thus, defendants’ 12 motion to dismiss the claim for vested rights is GRANTED. 13 CONCLUSION 14 For the foregoing reasons, defendants’ motion to dismiss the facial void for vagueness 15 claim is DENIED (to the extent stated above), the facial federal preemption claim is GRANTED, 16 and the vested rights claim is GRANTED. The answer is due within TEN DAYS from the date of 17 this order. Discovery may commence. 18 19 IT IS SO ORDERED. 20 21 Dated: April 18, 2019. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 8
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