     10-516-cv
     Goodspeed Airport v. Dep’t of Envtl. Prot. et al.
 1
 2                      UNITED STATES COURT OF APPEALS
 3
 4                           FOR THE SECOND CIRCUIT
 5
 6
 7                               August Term, 2010
 8
 9   (Argued: January 10, 2011                   Decided: February 10, 2011)
10
11                             Docket No. 10-516-cv
12
13
14                             GOODSPEED AIRPORT LLC,
15
16                                                        Plaintiff-Appellant,
17
18                                        –v.–
19
20    EAST HADDAM INLAND WETLANDS & WATERCOURSES COMMISSION, JAMES VENTRES,
21
22                                                       Defendants-Appellees,
23
24                              STATE OF CONNECTICUT,
25
26                                                              Amicus Curiae.*
27
28
29   Before:
30               POOLER, KATZMANN, and WESLEY, Circuit Judges.
31
32         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   Deregulation   Act,   or   Federal   Aviation   Agency

 6   regulations promulgated thereunder.
 7
 8       AFFIRMED.
 9
10
11             DEAN M. CORDIANO, Day Pitney LLP, Hartford, CT (René
12                  A. Ortega, John R. Bashaw, on the brief), for
13                  Plaintiff-Appellant.
14
15             KENNETH J. MCDONNELL, Gould, Larson, Bennet, Wells &
16                   McDonnell, P.C., Essex, CT, for Defendants-
17                   Appellees.
18
19             MARY K. LENEHAN, Assistant Attorney General (for
20                  Richard Blumenthal, Attorney General of the
21                  State of Connecticut), Hartford, CT, for
22                  Amicus Curiae.
23
24
25   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.     Goodspeed Airport

31   sought declaratory and injunctive relief establishing and

32   protecting its right to cut certain trees on its property,

                              Page 2 of 15
 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.                We write to

 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.      However, the state and local laws and regulatory

 8   scheme at issue in the instant appeal do not sufficiently

 9   intrude upon the field of air safety to be preempted.             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   thorough     and   well-reasoned      opinion.     Goodspeed

18   Airport, LLC v. East Haddam Inland Wetlands & Watercourses

19   Comm’n (Goodspeed), 681 F. Supp. 2d 182 (D. Conn. 2010).                We

20   discuss   only    those   aspects   of   the   case   necessary    to   an

21   understanding of the issues presented on appeal.

22       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.                 Appellee James Ventres

 3   is the enforcement officer for Appellee East Haddam Inland

 4   Wetlands and Watercourses Commission (“IWWC”).

 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).            The IWWC may issue cease and

12   desist   orders      and   bring    actions      to     enforce     the   act’s

13   provisions.    Persons within its jurisdiction are required to

14   apply to the IWWC for permission before undertaking activities

15   affecting protected land.

16       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.                    In January

19   2001, the IWWC issued Goodspeed a Cease and Desist Order (the

20   “Order”)    instructing     it     to   refrain       from   “all   regulated

21   activity    within    seventy-five      feet    of     inland/wetlands      and

22   watercourses (regulated areas) on your property[.]” The Order



                                   Page 4 of 15
 1   cited as its authority certain regulations of the Town of East

 2   Haddam, adopted and promulgated under Connecticut General

 3   Statute Section 22a.          This Order was later withdrawn, but

 4   Appellees continue to assert that the Airport is obliged to

 5   obtain a permit before cutting the trees.

 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.      Id. § 77.23.        Objects breaching this imaginary

13   surface are declared to be obstructions.1              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.    Second, the Airport argues for express preemption

14   pursuant to language in the Airline Deregulation Act of 1978

15   (“ADA”).

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.   It also sought to enjoin the defendants from

19   bringing any action under state or local law to prohibit or

20   otherwise regulate the removal of any trees constituting




                              Page 6 of 15
 1   obstructions to air navigation.2             After a bench trial, the

 2   district court ruled that neither theory of preemption was

 3   established.       Specifically, the district court found that,

 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.                    Further, the

 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.

12

13   II. DISCUSSION3

14

15         Federal    preemption     of   state    law    can   be    express     or


           2
            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                  To establish

 3   implied     preemption,     evidence     of    Congressional      intent    to

 4   displace state authority is required.                See Crosby v. Nat’l

 5   Foreign Trade Council, 530 U.S. 363, 372 (2000).                  There is a

 6   rebuttable presumption against the preemption of the states’

 7   exercise of their historic police power to regulate safety

 8   matters.    See New York State Rest. Ass’n v. New York City Bd.

 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   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.                  However, it

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         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.”   Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638,

 8   644 (2d Cir. 2005).

 9       On their face, the IWWA, CEPA, and the local permit

10   process established pursuant thereto do not address issues of

11   air safety.   Nor do they prohibit removal of the trees; they

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       “The United States Government has exclusive sovereignty

18   of airspace of the United States.”      49 U.S.C. § 40103(a)(1).

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
 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.              ATA examined evidence of

 8   Congressional “intent to centralize air safety authority and

 9   the comprehensiveness of [ ] regulations pursuant to that

10   authority,” under both the Aviation Act and the ADA.                      Id.

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.           See Goodspeed, 681 F. Supp.

14   2d at 199.     Today we join our sister circuits.5

15         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[.]”              Gade v. Nat’l Solid

 4   Wastes Mgmt. Ass’n, 505 U.S. 88, 107 (1992).                  We agree with

 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   not    interfere      with     federal     laws    and     regulations

 8   sufficiently to fall within the scope of the preempted field.

 9   Goodspeed, 681 F. Supp. 2d at 201-02.

10         The district court correctly distinguished a recent case,

11   also from the District of Connecticut, which held that the

12   Aviation    Act    impliedly      preempts    certain    town    regulatory

13   actions.6      Tweed-New Haven Airport Auth. v. Town of East

14   Haven, Conn. (Tweed), 582 F. Supp. 2d 261, 267 (D. Conn.

15   2008).      There, municipal defendants sought to prevent a

16   commercial     airport    from    “obstruct[ing]       construction     of     a

17   federally-mandated,         federally-funded,          and     state-     and

18   federally-approved”        runway     project     intended      to   enhance

19   aviation safety.       Id. at 263.

20         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   direct   intrusion    of   local   authority     on   the

 2   preempted field of air safety than do the regulatory actions

 3   challenged here.         Unlike Tweed-New Haven Airport, Goodspeed

 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.                   Indeed, in its

 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’    removal.7     Therefore,      while    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.      Instead, the Wetlands Act requires only that Appellant

17   obtain a permit before removing the trees in question.                    See

18   Conn. Gen. Stat. § 22a-42a. Thus, Appellant’s contention that

           7
            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.          “[P]art of the pre-

 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[.]”            English v. Gen.

 7   Elec. Co., 496 U.S. 72, 84 (1990).         The state laws at issue

 8   here do not enter the scope of the preempted field in either

 9   their purpose or their effect.

10       In occupying the field of air safety, Congress did not

11   intend   to   preempt   the   operation    of    state   statutes     and

12   regulations like the ones at issue here, especially when

13   applied to small airports over which the FAA has limited

14   direct oversight.       Appellant’s contention that the IWWC’s

15   permit application process is impliedly preempted by federal

16   law is without merit.

17       Appellant    also   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       Except as provided in this subsection, a State,
21       political subdivision of a State, or political
22       authority of at least 2 States may not enact or
23       enforce a law, rule, regulation, or other provision
24       having the force and effect of law related to a
25       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.        Today, by contrast, we hold that the ADA

 9   does not preempt applicable state and local environmental and

10   land    use   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      Act,   nor    expressly    preempted    by   the    ADA.

21   Accordingly, Appellant is obliged to observe the appropriate

22   state procedures.

23

                                  Page 14 of 15
 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   state   laws    and   regulations   imposing   permit

 6   requirements on land use challenged here do not, on the facts

 7   before us, invade that preempted field.      Further, the impact

 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

10   of the Airline Deregulation Act.       Accordingly, the district

11   court’s judgment of January 13, 2010 is hereby AFFIRMED.




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