How not to argue an administrative case

Another useful case from Albany Dean Patty Salkin's Law of the Land blog, "Local and State Agencies are Not Necessarily Preempted by Federal Law from Regulating Tree Removal at Airports".

Goodspeed Airport sought to remove certain trees located at the airport, claiming that they were “obstructions to air navigation,” however, it was arguably hindered from doing so because the trees were located in wetlands which were protected by the Wetlands Act and the Conn. Environmental Protection Act.  Both laws required Goodspeed to obtain permission before trimming or removing the trees.  Although Goodspeed did not file for a permit to remove the trees, it filed an action against the East Haddam Wetlands Commission and sought a declaratory judgment that once trees at the airport constitute an “obstruction to air navigation,” local and state agencies are prevented from interfering with their removal.  The Defendants moved to dismiss the action. 

First mistake: Failure to exhaust administrative remedies.

[T]he District Court for the District of Connecticut was asked to determine the extent to which Congress intended federal regulation of aviation safety to preempt generally applicable state and local environmental laws.  The court concluded that the Defendant’s actions in regulating the removal of trees at Goodspeed Airport that were within the protected wetlands were neither preempted by federal aviation law nor expressly preempted by the Airline Deregulation Act.

The court rejected Goodspeed’s argument that since the trees it wished to remove penetrated “navigable airspace” over which the federal government had exclusive dominion Connecticut was powerless to interfere in any way with how the Airport chose to deal with the trees.  The court noted that the conclusion that Congress intended to occupy the entire field of aviation safety is a necessary condition to the preemption issue, however, it was not sufficient.

Emphasis added. Second mistake.

Congress intended for its regulation of aviation safety to preempt only those state laws that either “a) have the purpose or effect of directly regulating an aspect of air safety; or b) are actually shown, on an as-applied basis, to impact the unified regulation of air safety.”  Since the state laws at issue did not have the purpose of directly regulating any aspect of air safety and Goodspeed had not shown that the permit requirement of the laws had that impermissible effect, nor did it choose to bring an as-applied challenge by applying for a permit and having it denied, the court had no basis for concluding that either state law was preempted.

Third and fourth mistakes.

The court went on to note that upholding the state laws would not, in contrast to the cases relied upon by Goodspeed, risk “fractionalized control” of any aspect of air safety by the FAA since the FAA only requires that obstructions be noted and/or studied and therefore requiring owners to get a permit to remove trees did not unduly undermine the regulation.

Poor analysis of the purpose of the federal statute - fifth mistake.

The court also rejected Goodspeed’s argument that the laws are expressly preempted insofar as they regulate the removal of trees that are “obstructions” based on the Airline Deregulation Act.  The Act contains a preemption clause which prohibits states or localities from enacting laws that have an effect on the “price, route or service” of an air carrier.  Goodspeed argued that by regulating the removal of obstructions at the Airport, the laws caused a risk that Goodspeed would face revocation of its license if the obstructions were not removed and therefore the air carriers that used the airport would be forced to use other airports, having an affect on the rates it charged its customers and the service it provided.  The court disagreed, noting that the fact that any impact would not only be indirect, but also entirely speculative, and the possibility that there could be no impact at all if Goodspeed were granted a permit, was sufficient for the court to hold that the state laws were not preempted.

Emphasis added. Sixth mistake. Bad things that might happen do not provide grounds for challenging government actions or requirements. Taking this to federal court was trying to use a pile driver when a hammer would have been sufficient. Unless you have an argument that a law or regulation is unconstitutional on its face (rare as a practical matter), you have to follow the rules to generate some sort of "as applied" argument. Further, it seems as if the plaintiff's analysis of the applicable FAA statutes and regulations was superficial. EMM